Ormet Primary Aluminum Corporation, Hannibal Reduction Division

Plain-English summary

The Secretary and Ormet settled a citation with a proposed $3,400 penalty, but the participating union said it had timely objected to the settlement's abatement method in a letter the judge apparently never received. Chairman Railton would have affirmed the settlement because an employee representative may object only to the reasonableness of the abatement time, not the chosen method. Commissioner Rogers would have remanded so the judge could first consider the objection under the governing rule and case law. Because the two Commissioners were divided, they vacated review, leaving the judge's settlement approval final with the precedential value of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in this procedural order.
• Outcome: The direction for review was vacated, leaving the order approving settlement as the final order.
• Key point: A two-member split over how to handle an employee representative's settlement objection left the judge's approval final without a majority Commission ruling on the objection.

Full text (OSHRC public release)

Orment Primary Aluminum Corporation, Hannibal Reduction Division and
USWA, Local 5724, Docket No. 02-0250

Walter, J. David
Normal
Walter, J. David
2
0
2018-08-02T19:03:00Z
2018-08-02T19:03:00Z
1
1354
7722
64
18
9058
16.00

false

false
false
false

EN-US
X-NONE
X-NONE

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 02-0250

ORMET PRIMARY ALUMINUM CORPORATION,

HANNIBAL REDUCTION DIVISION,

Respondent,

and

USWA, LOCAL 5724,

Authorized
Employee

Representative.

ORDER

Before: RAILTON, Chairman; and ROGERS,
Commissioner

BY THE COMMISSION:

Before
the Commission is an order by Administrative Law Judge Michael H. Schoenfeld
approving an agreement between the Secretary and Ormet Primary Aluminum
Corporation, Hannibal Reduction Division (“Ormet”), to settle a citation issued
by the Occupational Safety and Health Administration (“OSHA”) under the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 (“the Act”). On
February 1, 2002, following an inspection of Ormet’s facility in Hannibal,
Ohio, OSHA issued a citation with a proposed penalty of $3,400. Ormet filed a
timely notice of contest, and shortly thereafter the United Steelworkers of
America, Local 5724 (“Union”), elected party status in accordance with §10(c)
of the Act, 29 U.S.C. § 659(c), and Commission Rule 20(a), 29 C.F.R. § 2200.20(a).         On October 11,
2002, the Secretary and Ormet executed a Stipulation and Settlement Agreement
(“settlement”), which was submitted to the judge for approval. In an
accompanying letter, the Secretary stated that the Union elected not to sign
the settlement. On November 6, 2002, the judge issued an order approving the
settlement. He noted that proper notice had been given to all parties,
including the Union, and no objections to the settlement had been filed. The
judge’s order was docketed on November 7, 2002.

On
November 14, 2002, the Union notified the judge by letter that it had submitted
an earlier letter on October 21, 2002, with a timely objection to a provision
in the settlement regarding the method of abating the cited conditions. The
Union’s objections were treated as a Petition for Discretionary Review, and on
December 5, 2002, Commissioner Thomasina V. Rogers directed the judge’s decision
for review.

Commission
Rule 100, 29 C.F.R. § 100, sets forth specific provisions with respect to
settlement agreements. Under subsection (c) of the rule, an authorized employee
representative with party status may file an objection to the reasonableness of
the abatement time within 10 days after service or posting of a settlement
between the Secretary and a cited employer. If such an objection is timely
filed, “the Commission or the Judge shall provide an opportunity for the . . .
authorized employee representative to be heard and present evidence on the
objection, which shall be limited to the reasonableness of the abatement time.”
29 C.F.R. § 100(c). Here, the Union claims to have submitted a timely letter
objecting to a provision in the settlement regarding the method of abatement.
Because the judge did not receive the letter, he did not rule on the merits of
the Union’s objections.

The
two participating commissioners, Chairman W. Scott Railton and Commissioner
Rogers, are divided on the appropriate disposition of this case. Chairman
Railton would affirm the judge’s decision to approve the settlement agreement.
In his view, it is well settled under both Commission precedent and that of the
United States courts of appeals that “a union lacks the right to object to the
adequacy of the abatement methods specified in a settlement agreement between
the Secretary and an employer, and that the union may object only to the
reasonableness of the abatement period specified by the agreement.” See Pan
American World Airways, Inc. , 11 BNA OSHC 2003, 2004, 1984-85 CCH OSHD ¶
26,920, p. 34,486-7 (No. 83-249, 1984), and cases cited therein. Because the
Union’s objections do not concern the reasonableness of the abatement time,
Chairman Railton would affirm the judge’s order.

Commissioner
Rogers would remand the case to the judge. She notes that the Union’s
objections were submitted to the judge, but apparently not received by him, and
thus he did not have an opportunity to rule on them before approving the
settlement agreement. Therefore, in Commissioner Rogers’ view, remand would be
appropriate, consistent with Commission precedent, and in accordance with our
usual practice, in order for the judge who has handled the case to consider the
merits of the Union’s objections in light of Commission Rule 100(c) and extant
case law. See Ormet Primary Aluminum Corp. , 19 BNA OSHC 1146, 2000 CCH
OSHD ¶ 32,193 (No. 99-1566, 2000); Northwest Airlines Inc ., 2001 CCH
OSHD ¶ 32,500 (No. 00-0954, 2001). She notes that the scope of cognizable
authorized employee representative objection to a settlement agreement is
narrow. See Pan American World Airways, Inc. , 11 BNA OSHC at 2004,
1984-5 CCH OSHD at p. 34,487; and Rule 100(c). Nevertheless, if this right to
object is to have any meaning, she believes the judge who is charged with
resolving the case should have the opportunity to review the objection before
disposition of the case.

An
impasse between the two commissioners presents an obstacle to resolving the
case because the Commission can take official action only with the affirmative
vote of at least two members. Section 12(f) of the Act, 29 U.S.C. § 661(e). In
view of this disagreement and other considerations, Chairman Railton and Commissioner
Rogers have agreed to vacate the direction for review. See, e. g., Texaco, Inc. , 8 BNA OSHC 1758, 1760, 1980
CCH OSHD ¶ 24,634, p. 30,218 (Nos. 77-3040 & 77-3541, 1980); Rust
Engineering Co. , 11 BNA OSHC 2203, 2205, 1984-85 CCH OSHD ¶ 27,024, p.
34,777 (No. 79-2090, 1984). In the absence of a direction for review, the
judge’s decision becomes a final order of the Commission and can be appealed by
an aggrieved party to the appropriate United States court of appeals. Sections
10(c), 11(a) and (b), and 12(j) of the Act, 29 U.S.C. §§ 659(c), 660(a) and
(b), and 661(i). The judge’s decision here thus becomes the appealable final
order of the Commission, but it is accorded the precedential value of an
unreviewed judge’s decision.       Accordingly,
the direction for review is vacated. It is so ordered.

/s/

W.
Scott Railton

Chairman

/s/

Thomasina
V. Rogers

Commissioner

Dated: March 10, 2003

SECRETARY OF LABOR,

OSHRC

Complainant,

Docket No.

v.

02-0250

ORMET PRIMARY ALUMINUM CORPORATION,

Region V

HANNIBAL REDUCTION DIVISION,

Respondent,

Insp. No.

and

304362924

USWA, LOCAL 5724,

Authorized
Employee

Representative.

ORDER APPROVING SETTLEMENT

The Commission has jurisdiction over the subject
matter of the case and over the parties by virtue of the filing of a timely
notice of contest.   The stipulated settlement between the
parties filed on 10/31/02 has been considered. The settlement agreement
has been served on all parties and authorized employee representatives and
posted in the manner prescribed by Commission Rule 7(g). Ten (10) days has passed since service and posting and no
objection to the settlement has been filed.

The settlement is approved under 5 U.S.C.
'554(c)(1) and Commission Rule 100. The terms of the stipulated settlement are
incorporated, in their entirety, by reference in this order.

The order shall become final thirty (30) days from
the date of its docketing by the Executive Secretary, unless review thereof is
directed by a Commission Member within that time. 29 U.S.C. Section 661(j).

/s/

Hon. Michael H. Schoenfeld

Judge, OSHRC

Dated: November 6,2002

Washington
DC