BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

FOSTER TURKEY PRODUCTS
500 F Street
Turlock, CA 95381

 

                              Employer

 

 

Docket No.

00-R2D2-2303
and 2304

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by Daniel Torres (Third Party), makes the following decision after reconsideration.

JURISDICTION

On January 26, 2000, Daniel Torres lost his right arm while working for Foster Turkey Products (Employer). Between May 3, 2000, and May 26, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 500 F Street, Turlock, California (the site).

On June 15, 2000, the Division cited Employer for a serious violation of section 3999(b) [unguarded nip point] and general violations of sections 3203(b)(1) [record of inspections] and 3203(b)(2) [record of steps taken to implement Injury and Illness Prevention Program (IIPP)] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal on June 28, 2000. Daniel Torres was granted party status on January 11, 2001.

On August 23, 2001, the Division and Employer submitted a written settlement to the Appeals Board, which was not agreed to by Daniel Torres.

On September 27, 2001, the Appeals Board granted the motion of the Division and Employer to settle and closed the appeal.

On October 24, 2001, Mr. Torres filed a timely petition for reconsideration.

On December 6, 2001, the Appeals Board issued an order taking the petition for reconsideration under submission and further ordering that the Board Order of September 27, 2001, be stayed pending a decision on the petition for reconsideration.

ISSUE

Has Daniel Torres proffered sufficient grounds to vacate the settlement agreement between the Division and Employer?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Third Party Daniel Torres requests that the settlement agreement between the Division and Employer be rescinded because the Division “did not give Torres notice of [the] inspection nor an opportunity to participate in that inspection.” Torres further alleges that the settlement agreement does not take into consideration, “that this incident was a repeat serious violation or that it was a willful violation.”

The crux of Torres’ disagreement with the settlement agreement seems to be that the settlement agreement has a clause that states:

It is stipulated by and between the parties that this stipulation and the terms and conditions set forth herein are not intended to be and shall not be construed by anyone as an admission of any wrongdoing whatsoever by Appellant, except for purposes of administration and enforcement of the California Occupational Safety and Health Act in proceedings before the Appeals Board, and that the stipulation will not be used in any other proceeding between the parties or involving any other person, whether said proceeding be legal, equitable, or administrative in nature.

Torres feels that this clause will somehow affect his workers compensation claim.

In support of his request to have the settlement agreement rescinded, Torres cites our decision in Dey Laboratories, Inc., Cal/OSHA App. 93-2742, Decision After Reconsideration (Mar. 28, 1995). In that case, we reversed an order affirming a settlement agreement reached between Dey Laboratories, Inc. and the Division because the third party employee (Apodaca) was not afforded an opportunity to participate in the appeal proceedings.

We find that the law and application of law to facts enunciated in Dey Laboratories, Inc., supra, are still correct. However, significant differences exist between the facts in Dey Laboratories, Inc. and this case that compel us to affirm our Order accepting the settlement agreement in this case.

In Dey Laboratories, Inc., supra, the third party (Apodaca) alleged that he was not given an opportunity to participate in the proceedings and the Division did not make any contrary allegations. Here, however, the Division’s attorney, Ted O’Toole, has signed a declaration under penalty of perjury that he closely cooperated with Torres’ attorney, Rafael A. Cardenas. Mr. O’Toole declares that he discussed the alignment of interests between the Division and Torres with Mr. Cardenas and had a long, frank discussion regarding strategy. Both parties shared factual information.

Mr. O’Toole further declared that2:

On or about May 23, 2001, Mr. Cardenas and I had another long discussion by telephone and I mailed to him the discoverable documents in my case folder without requiring that he provide a written request.

On May 31, 2001, I notified Mr. Cardenas by telephone that I would be issuing a subpoena for the attendance of Mr. Torres at the scheduled hearing.

When the employer in this case had agreed in principle to settle for a non-admission clause, I called Mr. Cardenas on August 20, 2001, and explained the settlement terms to him, and I later served the proposed settlement documents on him by mail. …

In addition to the cooperative events described above, I had many other conversations with Mr. Cardenas.

Furthermore, I have verified that on May 11, 2000, at about 10:30 a.m., Daniel Torres was interviewed by telephone by Robert Williams, Safety Engineer, who used Eric Berg as a Spanish language interpreter.

In addition, in Dey Laboratories, Inc., supra, the employer withdrew its appeal from Citation No. 1 and the $150 civil penalty, and the Division amended Citation No. 2 by reducing the classification from serious to general and reducing the civil penalty from $750 to $600. This case differs from Dey Laboratories, Inc. in that the Division did not reduce or modify any of the citations issued or penalties proposed.

We find that the facts in this case are more closely aligned with the facts in San Diego Union Tribune, Cal/OSHA App. 90-841, Denial of Petition for Reconsideration (July 9, 1991) wherein the union, which had been granted party status by the Board, objected to the specific terms of the settlement agreement between the Division and Employer. In that case we denied the union’s petition for reconsideration, holding that the disagreement with the form of an order disposing of an appeal pursuant to a stipulated agreement does not constitute a ground for reconsideration. The union in San Diego Union Tribune, participated in the settlement discussions and the Division knew of its objections to the draft settlement, yet nonetheless chose to sign the settlement.

We also reaffirm, as we did in Dey Laboratories, Inc., supra, our recognition of the Division’s right to exercise prosecutorial discretion in choosing which cases it wants to prosecute. We will not exercise our right to review in this case when no modifications are sought in the original charging document and an employer agrees that it violated the sections charged. We do not see what public policy would be furthered by refusing to accept a settlement agreement under the facts of this case.

Torres suggests that the agreement is somehow binding on him in the workers compensation case. A similar argument was made by a third party and rejected by us in Goodwill Industries of Orange County, California Cal/OSHA App. 00-3871, Denial of Petition for Reconsideration (Nov. 13, 2001). In Goodwill Industries of Orange County, supra, we rejected that argument holding that we did not find that settlements not signed by third parties in Cal/OSHA Appeals Board cases were res judicata as to the board that hears workers compensation cases. As in Goodwill Industries of Orange County, supra, this case was not heard on the merits and we are unaware of any authority which supports the contention that the Division and Employer’s settlement of this case will in any manner effect Torres’ workers compensation claim.

DECISION AFTER RECONSIDERATION

The Board affirms its Order in this case issued September 27, 2001.
MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 18, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 In this case the Board did not receive a counter declaration from Torres disputing the veracity of the claims made by Mr. O’Toole. Moreover, Torres’ petition does not claim that he was denied the right to participate in settlement discussions.