The Metropolitan Museum of Art

Plain-English summary

OSHA cited the Metropolitan Museum of Art for six violations with $7,500 in proposed penalties, and the Secretary and museum later submitted a settlement reducing the total penalty to $3,700. An affected employee had earlier sent a letter asking that his materials be considered and raising questions about his right to elect party status. The Commission held that the letter might have manifested an intent to be heard, which can confer party status even without an express election. It set aside approval of the settlement and remanded for the judge to decide the employee's status and, if he was a party, whether settlement-service and participation requirements were satisfied.

Decision snapshot

• Cited standard(s): None identified in this procedural remand order.
• Outcome: Settlement approval was set aside, and the case was remanded to determine the affected employee's party status and rights.
• Key point: An affected employee may elect party status by manifesting an intent to be heard, even without using formal election language.

Full text (OSHRC public release)

The Metropolitan Museum of Art, Docket No. 08-0170

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 08-0170

THE METROPOLITAN MUSEUM OF
ART,

Respondent.

APPEARANCES:

Diane C. Sherman, OSHA Counsel; Patricia M. Rodenhausen, Regional Solicitor; Gregory F.
Jacob, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Dennis J. Morikawa, Esq.; Morgan Lewis & Bockius, LLP, Philadelphia, PA

For the Respondent

REMAND ORDER

Before: THOMPSON, Chairman; ROGERS, Commissioner.

BY THE COMMISSION:

Before the Commission is an order by Chief Administrative Law Judge Irving Sommer
approving a “Stipulated Settlement” between the Secretary and the Metropolitan Museum of Art
(“MMA”). Jon Peterson, an affected employee of the MMA, petitioned the Commission for
review of the judge’s order, disputing several of the stipulations made by MMA in the settlement
agreement. For the following reasons, we remand this case to the Chief Judge for further
proceedings consistent with this opinion.     

Background

This case arises from a November 8, 2007 inspection conducted by the Occupational
Safety and Health Administration (“OSHA”) at the MMA located at 1000 Fifth Avenue, New
York, New York. As a result of the inspection, OSHA issued MMA two citations—one serious
and one “other”—on December 20, 2007, alleging a total of six violations with a total proposed
penalty of $7,500. MMA filed a timely notice of contest on January 14, 2008. About a month
later, on February 18, 2008, Peterson sent a fax to the Commission’s Executive Secretary
consisting of a cover sheet and copies of seven letters between Peterson and several private,
federal, and state entities. One of these letters, dated the same day as his fax, was sent by
Peterson to OSHA’s New York Office with a copy to the Executive Secretary.

On August 26, 2008, the Chief Judge received a “Stipulated Settlement” from the parties.
In the settlement agreement, the Secretary withdrew two of the citation items, reclassified one of
the serious citation items to “other than serious,” and amended the total penalty amount to
$3,700. In addition, MMA certified that all violations alleged in the citation had been abated,
and a copy of the agreement had been posted and served on John Mayers, the authorized
employee representative, on August 14, 2008.

See Commission Rule of Procedure 100(c), 29 C.F.R. § 2200.100(c) (setting forth filing requirements for settlement
agreements including proof of service on all parties including authorized employee representatives and the posting of
notice to non-party affected employees). On September 10, 2008, the Chief Judge issued an order approving the
settlement agreement. Id. (requiring that order terminating litigation before Commission not be issued until 10 days
after agreement’s service or posting to allow for consideration of any affected employee or authorized employee
representative’s objection to the reasonableness of any abatement time).

Discussion

Based on our review of this matter, we find that the record raises questions about Peterson’s status in the
case at the time he sent his February 18, 2008 fax to the Commission. Under Commission Rule of Procedure 20(a),
29 C.F.R. § 2200.20(a), “ [a]ffected employees and authorized employee representatives may elect party status
concerning any matter in which the Act confers a right to participate. The election shall be accomplished by filing a
written notice of election at least 10 days before the hearing.” The Commission has held that “[a]ffected employees
need not expressly state that they wish to elect party status before it is conferred. Party status is conferred upon
affected employees if they manifest an intent to be heard during Commission proceedings.” General Electric Co ., 7
BNA OSHC 1277, 1277 & n.1, 1979 CCH OSHD ¶ 23,497, p. 28, 466 & n.1 (No. 77-3915, 1979). In General
Electric , the Commission concluded that an authorized employee representative’s letter to the Commission
expressing an interest in the case and requesting permission to attend the hearing, manifested “an intent to be heard”
and therefore, was considered an election of party status. Id .

Here, Peterson wrote in his February 18, 2008 letter to OSHA:

I request that these [enclosed] letters are part of the deliberations concerning my OSHA complaint
against the museum . . . . I have been given conflicting information as to my rights to attend th[e]
meeting [between OSHA and the union to discuss the complaint], my eligibility to elect party
status for this case, and the proper procedures to file an OSHA complaint as a Union employee
through District Council 37.

In view of this language, we find it appropriate to remand this case to the Chief Judge for him to consider whether,
under General Electric , Peterson’s February 18, 2008 letter “manifest[s] an intent to be heard” such that the letter
should be considered an election of party status.

If the Chief Judge finds that Peterson has party status
in this case, he shall also consider whether the requirements of Rule 100(c) have been met and
whether Peterson had the type of opportunity for input concerning the settlement as described in
Boise Cascade Corp ., 14 BNA OSHC 1993, 1991-93 CCH OSHD ¶ 29,222 (No. 89-3087,
1991).

Accordingly, we set aside the judge’s order approving the settlement agreement and
remand for further proceedings consistent with this opinion.

SO ORDERED.

_/s/_______

Horace A. Thompson III

Chairman

/s/____

Thomasina V. Rogers

Dated:   October 20, 2008                                                                      Commissioner