General Electric Company

Plain-English summary

OSHA cited General Electric for exposing employees to burn hazards from hot slag in a molten-metal furnace. The Secretary and GE settled, with GE agreeing to monitor furnaces for slag buildup and address safety precautions for maintenance. The participating union objected that the agreement did not specify hot-slag removal procedures or remedies if it disagreed with GE’s safety determinations. The Commission held that a union party may object to the reasonableness of an abatement date, but not to the adequacy of the selected abatement method. Because the union did not challenge the abatement date, the Commission affirmed approval of the settlement. The release does not identify the cited standard or penalty terms.

Decision snapshot

• Cited standard(s): None identified in the release.
• Outcome: Settlement approval affirmed over the union’s objections.
• Key point: A union party may challenge an abatement date in a settlement, but not the adequacy of the agreed abatement method.

Full text (OSHRC public release)

Docket No. 83-1227

SECRETARY OF LABOR,

Complainant,

v.

GENERAL ELECTRIC COMPANY,

Respondent.

INTERNATIONAL ASSOCIATION

OF MACHINES AND AEROSPACE

WORKERS, AFL-CIO,

Authorized Employees Representative.

OSHRC Docket No. 83-1227

DECISION

Before: BUCKLEY Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
� 661(i), section 12(j) of the Occupation Safety and Health Act of 1970, 29 U.S.C. ��
651-678 ("the Act"). The Commission in an adjudicatory agency independent of the
Department of Labor and the Occupational Safety and Health Administration. It was
established to resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the
Act, 29 U.S.C.� 659(c).

The Secretary issued a citation alleging that the General Electric Company
("GE") had exposed employees to burn hazards associated with hot slag produced
in a molten metal furnace. After GE filed a notice of contest, the Secretary and GE agreed
upon a settlement. In the agreement GE stated that it would monitor all its furnaces for
slag buildup, follow "to the extent possible" its normal practice of shutting
down a furnace to perform rebricking, and review "necessary safety precautions"
before performing maintenance other than rebricking. The administrative law judge approved
the agreement over the objections of the employee representative, the International
Association of Machinists and Aerospace Workers, AFL-CIO, which had elected party status.

On review, the union continues to object to the settlement. The union argues that the
settlement should be rejected because it does not specify the procedures GE must use for
hot slag removal, and does not state what remedies will be available to the union if the
union disagrees with GE's determination what safety precautions are "necessary"
and "possible."

The issue of whether the Commission can consider a union-party's objection to the adequacy
of the abatement method in a settlement agreement has been settled. In Pan American World
Airways, Inc., 84 OSAHRC 19/C9, 11 BNA OSHC 2003, 1984 CCH OSHD � 26,920 (No. 83-249,
1984), the Commission held that a union-party could not object to the adequacy of the
abatement method, that it could object only to the reasonableness of the abatement date.
See 29 U.S.C. � 659(c). Recently, the Supreme Court considered a closely- related
question: whether the Commission can consider a union-party's objection to a withdrawal of
a citation by the Secretary. The Court held that the Commission cannot consider such an
objection. Cuyahoga Valley Railway Co. v. United Transportation Union,. 54 U.S.L.W. 3299
(Nov. 4, 1985). The Court reasoned that the Commission's review of the Secretary's
decision to withdraw a citation would impermissibly interfere with a prosecutorial
decision that is exclusively the Secretary's province under the Act. The reasoning of
Cuyahoga and Pan Am is generally consistent with that of a number of courts of appeals
that have held or implied that unions lack the right to object to the adequacy of an
abatement method in a settlement. Donovan v. Allied Industrial workers of America, 760
F.2d 783 (7th Cir. 1985); Donovan v. Local 962, International Chemical Workers Union, 748
F.2d 1470 (11th Cir. 1984); Donovan v. International Union, Allied Industrial Workers of
America, 722 F.2d 1415 (8th Cir. 1983); Donovan v. United Steelworkers of America,
AFL-CIO, 722 F.2d 1158 (4th Cir. 1983); Donovan v. Oil, Chemical, and Atomic Workers
International Union, 718 F.2d 1341 (5th Cir. 1983), cert. denied, 104 S.Ct. 2344 (1984);
Donovan v. OSHRC (Mobil Oil Corp. and Petroleum Trades Employees Union, Local 419 ), 713
F.2d 918 (2d Cir. 1983); Oil, Chemical and Atomic Workers International Union v. OSHRC,
671 F.2d 643 (D.C. Cir.), cert. denied, 456 U.S. 969 (1982); Marshall v. Sun Petroleum
Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061 (1980). Indeed, the
Supreme Court cited all these cases with approval. Accordingly, we do not consider the
union's objection to the method of abatement in the settlement agreement. Because the
union did not object to the reasonableness of the abatement date, the judge properly
approved the settlement agreement.[[1]]

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated: December 11, 1985

FOOTNOTES:

[[1]] We do not, however, base our decision on the concept that unilateral action by the
Secretary--such as the withdrawal of a citation or the filing of a settlement-- deprives
the Commission of "jurisdiction" over a case. We necessarily have jurisdiction
under the Act to determine whether the employee objection goes to the abatement date.
There may be other cases where it would be consistent with the intent of Congress for the
Commission to retain jurisdiction over a case-perhaps to oversee outstanding protective
orders over trade secrets under 29 U.S.C. � 664, or to adjudicate an employer's
counterclaim for a declaratory order under 29 U.S.C. � 664(e).