United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR

Complainant, 

v. OSHRC DOCKET No. 14-0258 

PPG INDUSTRIES, INC., 

Respondent, 

 and

INTERNATIONAL CHEMICAL 

WORKERS UNITED COUNCIL OF THE 

UNITED FOOD AND COMMERCIAL 

WORKERS UNION, LOCAL 1049-C,

Authorized Employee Representative. 

ORDER

On June 15, 2015, I conducted a telephone conference to address the matter of the 

objections of the Authorized Employee Representative (Union) to the “Stipulation and 

Settlement Agreement” (Settlement Agreement) that the Secretary and the Respondent submitted 

for approval on March 26, 2015. 

For the reasons stated below, the Settlement Agreement is not approved because the 

present record is insufficient to establish that the Union was accorded the opportunity to 

participate in the settlement process before the Secretary and the Respondent executed the 

Settlement Agreement.
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Background 

The Union was granted party status in this matter by order dated November 4, 2014, 

pursuant to Commission Rule 20(a), 29 C.F.R. § 2200.20(a). About 10 weeks later, on January 

15, 2015, the attorney for the Secretary notified my office that the parties had resolved the 

matter, and accordingly, I cancelled the hearing that had been scheduled to commence on 

January 29, 2015. The Settlement Agreement was submitted for approval on March 26, 2015. 

The Union timely filed objections to the Settlement Agreement by an email from a representative 

of the Union on April 24, 2015, which set forth three enumerated objections. 

Substantive Objections to Settlement Agreement 

During the telephone conference on June 15, 2015, a representative for the Union 

acknowledged that none of its three objections challenged the reasonableness of the period of 

time prescribed for abatement of a violation. The Commission may consider a union’s (or 

affected employee’s) substantive objection to a settlement agreement only to the extent that the 

objection challenges the reasonableness of the period of time that the agreement provides to 

abate a violation. Pan Am. World Airways, Inc., 11 BNA OSHC 2003 (No. 83-249, 1984);

Marshall v. OCAW (American Cyanamid Co.), 647 F.2d 383 (3d Cir. 1981); 29 U.S.C. § 659(c); 

Commission Rule 100(c), 29 C.F.R. § 2200.100(c). Because none of the Union’s substantive 

objections challenges the reasonableness of any period of abatement, the Commission lacks the 

authority to address its substantive objections. 

Procedural Objection to Settlement Agreement 

Prior to the June 15, 2015 telephone conference, a representative for the Union filed a 

statement of position (by email dated June 4, 2015) stating essentially that the Union had not 
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been accorded an opportunity to participate in any aspect of the settlement process that had 

resulted in the Secretary and the Respondent executing the Settlement Agreement. 

The Secretary and the Respondent also filed separate statements of position as directed. 

According to the attorney for the Secretary, the Union had participated in some discovery 

activities after it had been granted party status on November 4, 2014. However, no information 

has been presented that demonstrates that the Union was given an opportunity to provide input 

on any proposed settlement between the time the Union was granted party status on November 4, 

2014, and the time that the Secretary and the Respondent executed the Settlement Agreement 

sometime in late March 2015. 

During the telephone conference, I directed the parties’ careful attention to the 

Commission decision in Boise Cascade Corp., 14 BNA OSHC 1993 (No. 89-3087, 1991) 

(consolidated), wherein the Commission elucidated its decision in General Electric Co., 14 BNA 

OSHC 1763 (No. 88-2265, 1990). The following from General Electric is instructive regarding 

the Union’s procedural rights in the settlement process: 

[W]hen enforcement proceedings have been initiated before the 

Commission and the Secretary proposes to settle the case, any input offered 

by the affected employees should be received at some point before a 

settlement agreement is executed between the Secretary and the employer.

Accordingly, we conclude that the Secretary should inform employees or 

their representatives who have elected party status of settlement negotiations 

so that the employees may offer input concerning the proposed settlement to 

the Secretary and, for that matter, to the employer as well. The Secretary and 

the employer will then have the benefit of the employees' input, which they 

may consider in determining whether to proceed with the settlement. If the 

Secretary and the employer agree to a settlement, notwithstanding any 

contrary views or input on the part of the employees or the union, and present 

the settlement to the Commission judge for approval, the employees or their 

representatives are entitled to file objections with the judge, but only as to the 

reasonableness of the time period prescribed for abatement. While the 
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Commission can disapprove a settlement agreement on the basis of an 

employee objection only if the objection pertains to the reasonableness of the 

abatement period, we will examine a settlement agreement, submitted for 

approval by the Commission or a Commission judge, to determine that the 

employees have had an opportunity to provide input during the formulation of 

the agreement. In this way, the legitimate interest of employees in being 

heard on the terms of a proposed settlement can be accommodated in a 

manner consistent with the limited rights of employees or their representatives 

to object to a settlement agreement once that agreement has been filed with 

the Commission or Commission judge.

Id., 14 BNA OSHC at 1766 (emphasis supplied) (footnotes and internal citation omitted).

In Boise Cascade, the Commission provided further guidance on this subject as follows: 

[W]hile we cannot order the method and degree by which the Secretary 

and employer receive the views of employees, we can review the Secretary's 

actions in this regard to determine whether the Secretary has abused his 

discretion. We also note that the limited right of employees to object to the 

reasonableness of the abatement period in a settlement agreement once that 

agreement has been submitted to the Commission or judge for approval is 

distinct from the opportunity to provide input on all matters pertaining to the 

settlement before the agreement is finalized. Therefore, we also reject Boise's 

contention that during the settlement process, employees may only be heard 

with respect to the reasonableness of the abatement period. 

As we have indicated, the Secretary assured us at oral argument that his 

policy is and has been to afford employees an opportunity to present their 

input before he enters into any settlement agreement. In view of the 

Secretary's latitude to define the method and degree of employee input that he 

will receive in any particular case, we conclude that it will not be proper for 

the judge to inquire into the provision of employee input except in unusual or 

egregious cases where it appears that the Secretary has contravened his stated 

policy by denying employees an opportunity for input. In such a situation, the 

absence of an opportunity for employees to offer input would in our view 

constitute an abuse of discretion on the part of the Secretary. We emphasize 

that because of the limited authority of the Commission to review settlement 

agreements, the judge is obligated to avoid any undue interference in the 

settlement process. We therefore conclude that, except in those rare cases 

where there clearly appears to be an abuse of discretion by the Secretary, the 
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proper role for the judge is to advise the Secretary and employer of any claim 

that employees have not been given an opportunity for input so that the 

Secretary and employer may then reconsider their positions in light of the 

claim.

The judge must have discretion to entertain claims that employees have 

not been heard in the settlement process before the settlement agreement is 

finalized and executed by the Secretary and employer. In that way, the 

Secretary and employer can take the employees' claims into consideration, and 

the Secretary will be better able to fulfill his responsibility to ensure that 

employees have had an adequate opportunity to be heard. 

Id., 14 BNA OSHC at 1997-98 (emphasis supplied) (footnote and internal citation omitted).

Consistent with Commission guidance in General Electric and Boise Cascade, approval 

of the tendered Settlement Agreement is inappropriate because the record is not sufficient to 

support the conclusion that the Union was accorded the opportunity to exercise its procedural 

right of participation as described in those decisions.1

IT IS THEREFORE ORDERED that the time for the parties to submit a fully executed 

settlement agreement is hereby extended to July 17, 2015. In conjunction with the transmittal of 

an executed settlement agreement, the Secretary should file a verification that the Union has 

been accorded an opportunity for participation in conformity with applicable Commission 

precedent. (Such verification could also be set forth within the body of the agreement.) Such a

settlement agreement must be served and posted in conformity with Commission Rule 100(c), 29 

C.F.R. § 2200.100(c). The Union will again have the opportunity to file within 10 days of 

service (1) any objections as the reasonableness of any period of time for abatement set forth in a 

 1 The Respondent, in its statement of position dated June 12, 2015, indicated that it did 

not object to acting positively upon certain aspects of the Union’s substantive objections to the 

Settlement Agreement. This position, articulated only after having considered the Union’s 

substantive objections, is perhaps demonstrative of the value to the settlement process of the 

procedural rights described in General Electric and Boise Cascade. 
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newly executed settlement agreement, and (2) an objection asserting that its procedural right of 

participation in the settlement process remained unsatisfied. 

SO ORDERED.

 /s/ 

WILLIAM S. COLEMAN

Administrative Law Judge 

DATED: June 16, 2015