Georgia-Pacific Corporation

Plain-English summary

OSHA cited Georgia-Pacific over employee exposure to polychlorinated biphenyl hazards, and the company later settled with the Secretary. The authorized collective-bargaining representative elected party status, while several employees sought separate representation by another union and a former employee also sought party status. The Commission held that once the authorized bargaining representative participates, bargaining-unit employees cannot separately elect party status or appear through a different representative. The former employee had not sought intervention or made the required factual showing for it. Because the authorized union did not pursue review of its settlement-participation objection, the Commission affirmed the party-status rulings and approved the settlement.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); the specific regulatory standards are not identified in the release.
• Outcome: The party-status denials and settlement approval were affirmed.
• Key point: When an authorized collective-bargaining representative elects party status, its representation of bargaining-unit employees is exclusive in the Commission proceeding.

Full text (OSHRC public release)

Docket No. 89-2713

SECRETARY OF LABOR,

Complainant

v.

GEORGIA-PACIFIC CORPORATION,

Respondent.

LOCAL 3-469, INTERNATIONAL WOODWORKERS

OF AMERICA,

Authorized Employee Representative.

OSHRC DOCKET NO. 89-2713

DECISION

BEFORE: FOULKE, Chairman; WISEMAN, Commissioner.

BY THE COMMISSION:

An order of Administrative Law Judge Sidney J.
Goldstein approving a settlement agreement between the Secretary and Georgia-Pacific
Corporation ("Georgia-Pacific"), is before us for review on issues relating to
the participation of employees and representatives of employees in Commission proceedings.
  We conclude that the judge acted properly in approving the settlement agreement,
and we affirm his order.

Following an inspection by the Occupational
Safety and Health Administration ("OSHA"), the Secretary alleged that
Georgia-Pacific had committed one willful and seven serious violations of standards issued
under the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-78 ("the
Act"), and one violation of section 5(a)(1) of the Act, the "general duty
clause," 29 U.S.C. � 654 (a)(1).  Georgia-Pacific timely contested the
Secretary's citations, thus invoking the Commission's jurisdiction.

All of the allegations relate to the exposure of
Georgia-Pacific's employees to hazards of polychlorinated biphenyls ("PCB's").
Shortly after the Secretary filed her complaint with the Commission, a former employee,
Treva VandenBosch, requested the right to participate as a party to the Commission's
proceedings.  VandenBosch stated that, while she was no longer employed at
Georgia-Pacific's plant, during the time she was an employee she had complained to OSHA
about a discharge of PCB's at the facility.  In response, Judge Goldstein advised
VandenBosch that since she was not a current employee of Georgia-Pacific, she was not
entitled to elect party status.  Thereafter, the authorized collective bargaining
agent for Georgia-Pacific's employees, Local 3-469 of the International Woodworkers of
America ("IWA"), filed an election of party status.

Several employees then wrote to Judge Goldstein,
advising him that they had "no confidence" in the IWA's business agent and that
they did not "authorize" the IWA to serve as their representative.  The
employees requested that they be represented by two other individuals, Judi Bari and Anna
Marie Stenberg, and that Bari and Stenberg be granted party status.  VandenBosch
joined in this letter.  At the same time, Bari and Stenberg wrote to the judge,
requesting party status on behalf of "affected employees."  Both Bari and
Stenberg identified themselves as representatives of Local 1 of the Industrial Workers of
the World ("IWW").  The IWW concedes that it is not an authorized
collective bargaining agent for Georgia-Pacific's employees.

Georgia-Pacific and the Secretary subsequently
entered into a settlement agreement that amended the alleged willful violation to a
serious violation, amended the alleged violation of section 5 (a) (1), and reduced the
penalties the Secretary had proposed.  The IWW objected to the settlement agreement
on the ground that it would not adequately protect employees from hazards in the plant and
would encourage Georgia-Pacific to continue harassing and retaliating against employees
who file complaints with OSHA.  The IWA objected on the ground that it was not
notified of the settlement agreement or consulted with respect to the provisions of the
agreement.

In approving the settlement agreement, Judge
Goldstein concluded that neither the IWW nor any other individuals designated by the
employees were entitled to elect party status under the Commission's rules governing the
election of party status by employees or their representatives.  He also concluded
that the objection to the settlement agreement raised by the IWA was not an objection
cognizable by the Commission.  We directed review of the judge's order and requested
briefs on the issues of:  (1) whether the judge erred in denying the requests for
party status filed by the employees and Stenberg and Bari, (2) whether the judge erred in
denying VandenBosch's request for party status as a former employee, and (3) whether the
IWA had been "afforded an opportunity for meaningful participation in the settlement
agreement process."

The IWW contends that internal operating
procedures established by OSHA for the guidance of its field personnel allow affected
employees the right to freely choose their representatives in a proceeding before the
Commission.  In addition, the IWW asserts that under the Commission's Rules of
Procedure, there similarly are no restrictions on the employees' choice of a
representative.  For the reasons set forth below, we reject the IWW's arguments.

The right of employees to elect party status is
conferred by the Act, which requires that ''[t]he rules of procedure prescribed by the
Commission shall provide affected employees or representatives of affected employees an
opportunity to participate as parties to hearings [before the Commission]."[[1/]]
  Commission Rule 20(a), 29 C.F.R. � 2200.20(a), states that "affected
employees and authorized employee representatives" may elect party status.  Rule
22(a), 29 C.F.R. � 2200.22(a), generally permits "any party" to appear
"through an attorney, or through another representative who is not an attorney."
  However, a specific limitation applies in the case of employees who are members of
a collective bargaining unit.

Rule 22(b), 29 C.F.R. � 2200.22(b), provides as follows:  "Where an authorized
employee representative (see � 2200.1(g)) elects to participate as a party, affected
employees who are members of the collective bargaining unit may not separately elect party
status." Rule 1(g) defines "authorized employee representative" as a
"labor organization that has a collective bargaining relationship with the cited
employer and that represents affected employees."

Under the plain language of these rules, if the
affected employees' authorized collective bargaining agent elects party status, the
employees themselves cannot make any separate election of party status. United States
Steel Corp., 11 BNA OSHC 1361, 1364, 1983-84 CCH OSHD � 26,523, p. 33,780 (No. 80-2425,
1983). Because the affected employees are precluded from electing party status in such
circumstances, it necessarily follows that the representation by the authorized collective
bargaining agent is exclusive, and the affected employees cannot appear through any other
representative. Babcock & Wilcox Co., 8 BNA OSHC 2102, 2106, 1980 CCH OSHD � 24,812,
pp. 30,565-66 (No. 78-446, 1980) [[2/]] Since the authorized collective bargaining
representative for the affected employees, the IWA, timely elected party status under the
Commission's rules, Judge Goldstein properly held that the IWW cannot elect party status
in these proceedings.

For the same reason, we conclude that the judge
did not err in denying the request for party status by former employee VandenBosch.
  In the circumstances presented here we find it unnecessary to decide whether an
individual who at one time was an employee affected by the allegedly hazardous working
conditions that are the subject of the Secretary's citations may either elect or maintain
party status after his or her employment ends.  To the extent that VandenBosch seeks
to present the same interest as Georgia-Pacific's current affected employees, we conclude
that she may not do so separately and distinct from the IWA, since under the Commission's
rules the IWA, having elected party status, is the only representative who may appear on
behalf of Georgia-Pacific's affected employees.  To the extent that VandenBosch seeks
to present some other interest that would not be adequately protected by the participation
of the IWA, the Commission's rule on intervention, Rule 21, applies rather than the rules
governing party status.  S ee Brown & Root, Inc ., 7 BNA OSHC 1526, 1979 CCH
OSHD � 23,731 (No. 78-127, 1979) (union which represents employees of a subcontractor at
a construction site but does not represent employees of the cited employer cannot be
granted party status and can only enter the proceeding as an intervenor).  However,
while VandenBosch sought to elect party status, she has not moved for leave to intervene
and has not made the factual showing necessary to support intervenor status. [[3/]]

We also requested briefs on the question of
whether the authorized employee representative, the IWA, was afforded an opportunity for
meaningful participation in the settlement process.  In General Electric Co .,
14 BNA OSHC 1763, 1990 CCH OSHD � 29,072 (No. 88-2265, 1990) and more recently in Boise
Cascade Corp ., 14 BNA OSHC 1993 1991 CCH OSHD � 29,222 (No. 89-3087, 1991), we held
that employees or their authorized representatives who have elected party status should be
allowed to present their input to a proposed settlement before it is executed and
submitted to the Commission or Commission judge for approval.  The IWA, however,
neither filed a petition for review of Judge Goldstein's decision approving the settlement
agreement nor responded to our briefing order.  In short, the IWA has expressed no
interest in review of this matter.  We therefore decline to address the question of
whether the IWA should have been afforded an opportunity to present input to the proposed
settlement agreement.  See Marmon Group, Inc ., 11 BNA OSHC 2090, 2090
n.1, 1984-85 CCH OSHD � 26,975, p. 34,641 n.1 (No. 79-5363, 1984) (Commission declines to
reach issues on which the aggrieved party indicates no interest).

Accordingly, the judge's order denying the
requests for party status by the individual employees and by Stenberg and Bari as
representatives of the IWW, and approving the settlement agreement, is affirmed.[[4/]]

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: June 28, 1991

SECRETARY OF LABOR,

Complainant,

v.

GEORGIA-PACIFIC CORPORATION,

Respondent.

OSHRC DOCKET NO. 89-2713

FINAL ORDER

After a representative of the Occupational
Safety and Health Administration inspected a workplace of the respondent, that Agency
issued to the company two citations for the alleged violation of regulations adopted under
the Occupational Safety and Health Act of 1970.  The respondent disagreed with the
citations and submitted a notice of contest.

Thereafter the Secretary filed a Complaint with
this Commission to affirm the citations, and the respondent forwarded its Answer. The
International Woodworkers of America, Local Union 3-469, AFL-CIO, filed a notice to the
effect that it intended to participate in this case.  The union was granted party
status in this proceeding.

After a Notice of Hearing was served upon the
parties, approximately fifty-one individuals requested permission to attend the
proceedings.  In addition a few employees wrote to the effect that they were
displeased with the union's efforts on their behalf and requested that they and the
International Workers of the World, Local No. 1, represent them in this matter.

Prior to the hearing, the Secretary of Labor and
respondent entered into and submitted a Settlement Agreement, and the hearing was
therefore cancelled.

On January 31, 1990, John C. Smith, Jr., wrote
to me as follows:

Be advised that my client, International
Woodworkers of America, Local No. 3-469, objects to the purported settlement of this
matter.  We were not notified or consulted about any settlement and as a
necessary party, we will require that the parties include us in any attempts at resolving
this case.

As noted, a few employees submitted a request
that they or the International Workers of the World, Local Union No. 1, instead of the
International Woodworkers of America, Local Union 3-469, AFL-CIO, represent them in this
case.  In this connection Section 2200.22(b) provides:

(b) Affected employees in collective
bargaining unit .  Where an authorized employee representative (see 2200.1(g)
elects to participate as a party, affected employees who are members of the collective
bargaining unit may not separately elect party status.

Section 2200.1(g) defines the term
"authorized employee representative" as a labor organization that has a
collective bargaining relationship with the cited employer and that represents affected
employees.

Inasmuch as neither those individuals who desire
to represent the employees nor the International Workers of the World, Local Union No. 1,
do not fall within the definition of a labor organization that has a collective bargaining
relationship with the cited employer, their requests for party status must be denied.

The employee representative objects to the
Settlement Agreement on the ground that it was not notified or consulted about any
settlement.  In this regard the case of Secretary of Labor v. General Electric Co .,
1985 CCH OSHD 27,452 (No. 83-1227) is determinative of the issue in the current
proceeding.  In that case the Secretary and the company agreed upon a settlement
which was approved by the administrative law judge over the objections of the employee
representative.  On review, the union argued that the settlement should be rejected
for a number of reasons.  The Commission held that the issue of whether it can
consider a union-party's objection to the adequacy of the abatement method in a settlement
agreement has been settled.  The Commission's position is that a union-party could
object only to the reasonableness of the abatement date.  Since there has been no
disagreement with the abatement date, the International Woodworkers of America, Local No.
3-469, AFL-CIO's objection to the Settlement Agreement is denied.

There being no objection to the abatement date, the citations, as amended, and proposed
penalties, as amended, are AFFIRMED.

Sidney J. Goldstein

Judge, OSHRC

Dated: March 29, 1990

FOOTNOTES:

[[1/]] In its briefs, the IWW relies on OSHA
Instruction CPL 2.45B, Field Operations Manual , Chapter IX, section A.2.c (June 15,
1989), amended by OSHA Instruction CPL 2.45B CH-1 (Dec. 31, 1990). The provisions
to which the IWW refers deal only with the filing with the Secretary of complaints of
unsafe working conditions. They have no bearing on the question presented here, the
designation of a representative to appear on behalf of affected employees in a Commission
proceeding.

[[2/]] Babcock & Wilcox held that an affected employee who is a member of a
collective bargaining unit may only appear through his bargaining unit even if that
collective bargaining unit declined to participate as a party.  In United States
Steel , the Commission overruled this portion of Babcock & Wilcox , but
otherwise left undisturbed its general principle that "once employees have selected
an exclusive bargaining representative, they may deal with their employer only through
that representative concerning their conditions of employment."  8 BNA OSHC at
2105, 1980 CCH at p. 30,565.

[[3/]] Rule 21 provides, in pertinent part, as
follows:

� 2200.21 Intervention; Appearance by
non-parties.

(a) When allowed .  A petition for
leave to intervene may be filed at any time prior to ten days before commencement of the
hearing. A petition filed less than ten days prior to the commencement of the hearing will
be denied unless good cause is shown for not timely filing the petition.  A petition
shall be served on all parties in accordance with � 2200.7.

(b) Requirements of petition .  The petition shall set forth the interest of
the petitioner in the proceeding and show that the participation of the petitioner will
assist in the determination of the issues in question, and that the intervention will not
unduly delay the proceeding.

The IWW alleges on review that VandenBosch has
an interest in emissions from Georgia-Pacific's plant because she lives close to the
facility and is caring for family members disabled from respiratory conditions.  Even
assuming these unsworn representations are factually correct, the IWW has failed to show
how VanderBosch's concerns regarding environmental emissions from the worksite relate to
the occupational safety and health issues that are the subject of the Secretary's
citations.

[[4/]] In view of our disposition, we deny the
pending motions for oral argument filed by Georgia-Pacific and Stenberg.