Sinaiko Brothers Company

Plain-English summary

OSHA cited Sinaiko Brothers for failing to provide a point-of-operation guard on a Milwaukee alligator shear. The company contested that item, then entered a settlement extending the abatement date to April 1, 1974 and agreeing to withdraw its contest and pay the proposed $50 penalty. The judge approved the agreement and affirmed the item as modified. The Commission noted that the settlement had been posted but not served on the union representing affected employees as required by its rules. It nevertheless affirmed because a remand was no longer timely and the case was moot.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: The settlement was approved, the shear-guarding item was affirmed with an extended abatement date, and the $50 penalty was affirmed.
• Key point: Settlement agreements must be served on represented as well as unrepresented employees, although the Commission declined a moot remand in this case.

Full text (OSHRC public release)

Docket No. 4958

SINAIKO BROTHERS COMPANY

OSHRC Docket No. 4958

Occupational Safety and Health Review Commission

August 28, 1974

�
[*1]
�

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

�
CLEARY, COMMISSIONER: On February 27, 1974, Judge James D. Burroughs issued his decision and order in this case approving a stipulated settlement agreement executed by the parties.

On March 26, 1974, the Commission directed review of the decision and order of the Judge in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. �
�
651
et seq.,
hereinafter referred to as "the Act").
�
Submissions were invited on the issue of whether the notice of hearing and settlement agreement were served on the authorized employee representative.

The Commission has reviewed the entire record in this case.
�
We adopt the Judge's decision to the extent that it is consistent with the following.

On September 25, 1973, the Secretary issued to respondent one citation for non-serious violation together with a notification that a penalty of $75 was proposed.
�
On October 4, 1973, respondent timely filed a notice of contest as to item 3 of the citation.
�
After a complaint and answer were filed, complainant and respondent executed a settlement agreement. The complainant agreed to an extension [*2]
�
of the abatement date for item 3 and respondent agreed to withdraw its notice of contest.

Review of the record in this case reveals that there is no evidence that the notice of hearing was served on the authorized employee representative
�
or posted. n1 Service on the authorized employee representative and posting of the notice of hearing at this time would serve no purpose because the hearing was cancelled on February 11, 1974.
�
The Commission notes, however, that under Commission rules 7(d) and 7(e) an employer must file proof of service and proof of posting. n2

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 Commission rules 7(i) & (j) [29 CFR �
�
2200.7(i) & (j)] state:

(i) A copy of the notice of hearing to be held before the Judge shall be served by the employer on affected employees who are not represented by an authorized employee representative by posting a copy of the notice of such hearing at or near the place where the citation is required to be posted.

(j) A copy of the notice of hearing to be held before the Judge shall be served by the employer on the authorized employee representative of affected employees in the manner prescribed in paragraph (c) of this rule, if the employer has not been informed that the authorized employee representative has entered an appearance as of the date such notice is received by the employer.

Commission rules 7(d) & (e) [29 CFR �
�
2200 7(d) & (e)] state:

(d) Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service.
�
Such statement shall be filed with the pleading or document.

(e) Where service is accomplished by posting, proof of such posting shall be filed not later than the first working day following the posting.

n2
Id.

�
[*3]
�

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Although the proposed settlement agreement was posted, it was not served upon the authorized employee representative, Local 695, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

Commission rule 100(c) [29 CFR �
�
2200.100(c)] states the following concerning service of a settlement
�
agreement on authorized employee representatives:

Rule 100 Settlement

(c) Where the parties to settlement agree upon a proposal, it shall be served upon represented
and
unrepresented affected employees in the manner set forth in rule 7 hereof.
�
Proof of such service shall accompany the proposed settlement when submitted to the Commission or the Judge.
�
[Emphasis added.]

Commission rule 7(d) also requires respondent to file proof of service of the settlement agreement. n3

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n3
Id.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

A remand of this case is not timely, however, because the facts indicate that the case is now moot.
�
Accordingly, the Judge's [*4]
�
decision is affirmed.

So ORDERED.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: On September 25, 1973, respondent was issued a citation alleging non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 for failure to comply with eight (8) safety standards promulgated pursuant to section 6 of the Act.

The respondent, by letter dated October 4, 1973, timely notified complainant that it desired to contest item 3 of the citation.
�
Item 3 alleges a violation of the standard published at 29 CFR 1910.212(a)(3)(ii).
�
The citation describes the alleged violation as follows:

Employer failed to provide a point of operation guard on machines whose operation exposes employees to injury.
�
I.E., the Milwaukee Alligator Shears in the yard north of the office was not guarded.

The citation specified that the alleged violation was
�
to be corrected immediately upon receipt of the citation.
�
A notification of proposed penalty issued on September 25, 1973, proposed a penalty of $50.00 for the alleged violation of item 3.

Prior to the secheduled hearing date, the parties advised that the matter had been amicably resolved.
�
[*5]
�
A settlement agreement was received on February 14, 1974.
�
Under the terms of the agreement, the abatement date for item 3 is extended to April 1, 1974.
�
Complainant represents that the original abatement date did not afford respondent sufficient time to abate the alleged violation.

Respondent, by agreeing to withdraw its notice of contest, concedes the violation of item 3 and represents that all other items of the citation have been abated, that it is in continuing compliance with the Act and that the proposed penalty of $50.00 for item 3 will be paid upon approval of the settlement. In a separate letter, dated February 8, 1974, counsel for respondent advises that notice of the settlement has been posted on the respondent's premises in accordance with Rule 7(g) of the Commission's Rules of Procedure.

The settlement agreement having been carefully read and considered, it is

ORDERED:

(1) That the settlement is consistent with the objectives of the Occupational Safety and Health Act of 1970 and is approved;

(2) That item 3 of the citation issued September 25, 1973, is modified to provide for an abatement date of April 1, 1974, and that item 3 is affirmed as modified; and

(3)
�
[*6]
�
That the notification of proposed penalty issued September 25, 1973, proposing a penalty of $50.00 for item 3 is affirmed as to item 3.
�