UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
L. SOLIS, SECRETARY
DEPARTMENT OF LABOR,
OSHRC DOCKET NO.
|DELTA AIR LINES,
STIPULATION OF SETTLEMENT
Complainant and Respondent (together, the "Parties") hereby stipulate and agree as follows:
- Respondent Delta Air Lines, Inc. was cited on February 11, 2011, for alleged violations of the Occupational Safety and Health Act ("Act") and was issued a Citation and Notification of Penalty.
- Respondent is an employer within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§651 et seq., ("Act"). Respondent filed with representatives of the Secretary of Labor a notice of intent to contest the Citation and Notification of Penalty referenced in paragraph 1 above. This notice was transmitted to the Occupational Safety and Health Review Commission ("Commission"), and it is agreed that jurisdiction over this proceeding is conferred upon the Commission by Section 10(c) of the Act.
- The Parties stipulate and agree that Citation 1, Item 1 of the above-referenced Citation and Notification of Penalty is amended to include the terms of this Stipulation of Settlement ("Agreement") as required abatement, that the abatement measures set forth in the attached Compliance Plan are incorporated into this Agreement as Appendix A, and that those abatement measures are required of Respondent and acceptable to Complainant as full and complete abatement of the violation alleged. The Parties also stipulate and agree that Citation 1, Item 2 shall remain as written, that the violation alleged was corrected during the OSHA inspection, and that abatement certification and documentation is not required for that violation. Complainant hereby amends the Citation and Notification of Penalty to delete Citation 2, Items 1 and 2 in their entirety.
- Respondent hereby withdraws its notice of contest to the Citation and Notification of Penalty, as amended and set forth herein, and the Parties agree to the entry of a final, enforceable Order of the Commission consistent with the terms of this Agreement.
- Respondent agrees to pay to the Occupational Safety and Health Administration ("OSHA") the total proposed penalty amount of $8,500 in full settlement of the assessed penalty in this matter within ten (10) calendar days of the entry of an Order of the Commission approving this Agreement. Payment shall be accomplished by mailing a check payable to "DOL-OSHA" to OSHA's Atlanta West Area Office, 2400 Herodian Way, Suite 250, Smyrna, Georgia 30080.
- With respect to Citation 1, Item 1 of the above-referenced Citation and Notification of Penalty, and pursuant to 29 C.F.R. §1903.19, Respondent shall submit to the Directorate of Enforcement Programs in OSHA's National Office certification that the Company has completed each of the abatement measures set forth in Section II, Paragraphs 1, 4, and 7 of the Compliance Plan (Appendix A) within 10 calendar days after expiration of the time periods specified in the Compliance Plan for completion of each of those measures. The Parties agree that the violations alleged in Citation 1, Item 2 and Citation 2, Items 1 and 2 were corrected during the OSHA inspection as noted on the above-referenced Citation and Notification of Penalty.
- The Parties understand and agree that a failure to perform in good faith any of the abatement measures required in the Compliance Plan or other provisions of this Agreement may be cited as failure to abate under Section 10(b) of the Act, 29 U.S.C. §659(b), and may be subject to an enforcement action brought by Complainant pursuant to Section 11(b) of the Act, 29 U.S.C. §660(b), to the same extent as if these abatement measures had been set forth from the outset in the Citation and Notification of Penalty issued in this matter. Respondent agrees that it will not oppose the entry, pursuant to Section 11(b) of the Act, of an order of enforcement by the United States Court of Appeals to which Complainant presents this Agreement and supporting documents.
- The Parties stipulate and agree that Respondent reserves its right to Petition OSHA for Modification of Abatement Dates, pursuant to 29 C.F.R. §1903.14a, if Respondent is unable to meet any abatement deadline set forth in the Compliance Plan appended to this Agreement because of factors beyond Respondent's reasonable control and despite Respondent's good faith effort to comply with the required abatement measures. The Complainant agrees that any such Petition for Modification of Abatement Date ("PMA") submitted by Respondent to the Directorate of Enforcement Programs in OSHA's National Office, and any extension of time approved by OSHA in response to such a PMA, need not be made specific to a single worksite, but may be made to apply to any or all of the worksites covered by this Agreement. The Parties further stipulate and agree that any extension of time approved by OSHA's National Office in response to a PMA submitted by Respondent during the term of this Agreement shall be automatically incorporated into this Agreement and binding upon the Parties, and that Respondent retains its right to seek variances and/or other legal redress as to implementation of abatement as may be available at law.
- Respondent certifies that there is no authorized employee representative of Respondent's employees at the cited worksite who are affected by this Agreement. Respondent further certifies that this Agreement has been served on those employees by posting a copy at the cited worksite on _____________________________, 2012, in accordance with Rules 7 and 100 of the Rules of Procedure of the Commission.
- The Parties stipulate and agree that the terms of this Agreement are intended to apply to all of the worksites of Respondent and its wholly-owned subsidiaries, DGS and Regional Elite, (together, "Delta" or the "Company") that are located within Federal OSHA's jurisdiction. In addition, over and above the requirements of this Agreement, Respondent intends to implement the abatement measures set forth in the attached Compliance Plan (Appendix A) at the Company's worksites that are located in states that have assumed authority for the enforcement of OSHA Standards under a state plan pursuant to Section 18 of the Act ("State OSHA jurisdictions"). Complainant agrees that OSHA shall encourage the state plan officials in these states to enter into agreements with Delta that apply the terms of this Agreement to the Company's worksites within the jurisdictions of such state OSHA plans. Respondent agrees to inform OSHA of the city and state locations of all of Delta's domestic worksites, including those in state OSHA plan states, where Company employees are engaged in ground support operations using any of the "Covered Vehicles" defined in Appendix A(III) of this Agreement. Respondent shall submit to OSHA a list of such domestic worksite locations that are in existence on the effective date of this Agreement (Appendix A(V)), and shall provide OSHA with updates to that list within 90 calendar days of any opening or closing of a location that might occur during the term of this Agreement. These lists shall be submitted to the same individuals designated by OSHA for receipt of the seat belt installation progress reports discussed in paragraph 13 below.
- Complainant agrees that OSHA shall not cite Delta either under the Personal Protective Equipment Standard (29 C.F.R. §1910.132), the Powered Industrial Trucks Standard (29 C.F.R. §1910.178), or the Act's General Duty Clause (Section 5(a)(1)), at any of the Company's worksites for not providing, training on, and/or enforcing the use of seat belts on any bag tugs, belt loaders, cargo tractors, or "bob tail" trucks ("Covered Vehicles" as further defined in Appendix A(III) of this Agreement) during the first 12 months of this Agreement, unless OSHA determines that the Company has not adequately conducted the training on, or is not engaging in good faith in the installation of, seat belts on those Covered Vehicles as specified in the Compliance Plan (Appendix A of this Agreement).
- Complainant further agrees that OSHA shall not cite Delta either under the Personal Protective Equipment Standard (29 C.F.R. 1910.132), the Powered Industrial Trucks Standard (29 C.F.R. §1910.178), or the Act's General Duty Clause (Section 5(a)(1)), at any of the Company's worksites for not enforcing the use of seat belts on any Covered Vehicles during the second 12-month period of this Agreement, unless OSHA determines that the Company has failed to adequately conduct and implement a seat belt use training and enforcement program for those Covered Vehicles as specified in the Compliance Plan (Appendix A of this Agreement).
- Except as otherwise provided, nothing in this Agreement shall limit OSHA's right to use, as appropriate, enforcement methods provided under the Act.
- Respondent agrees to monitor its progress in installing seat belts on the Covered Vehicles, and to provide written progress reports on the status of that activity every 90 calendar days after the effective date of this Agreement until the installations are completed to individuals designated by OSHA for the receipt of such reports. These progress reports will list the percentages of each make/model, as well as each type (namely bag tugs, belt loaders, cargo tractors, and "bob tail" trucks as defined in Appendix A(III) of this Agreement), of the Covered Vehicles in use by the Company that have been equipped with functioning seat belts since the effective date of this Agreement.
- Beginning at the end of the first 12 months and continuing throughout the term of this Agreement, Respondent agrees to engage at its own cost qualified third-party safety consultants to monitor the Company's implementation of the seat belt use program specified in the Compliance Plan (Appendix A of this Agreement) at a representative sample of Delta worksites within Federal OSHA's jurisdiction, and to provide the consultants' written reports on these monitoring visits every 90 calendar days thereafter to individuals designated by OSHA for the receipt of such reports. Respondent agrees to provide the credentials of the third-party consultants, who shall have appropriate training and experience in workplace safety, for review by OSHA 30 calendar days or more prior to the consultants' beginning the monitoring visits. OSHA shall have 15 calendar days thereafter to object to Respondent's selections. If OSHA objects, the agency shall indicate to Respondent the grounds for the objection, and Respondent will then continue to search until it locates persons to whom OSHA does not object. The selected consultants shall be retained by Respondent promptly following expiration of the 15-day period without objection. Respondent agrees to monitor over the term of this Agreement a total of at least ten percent (10%) of the Company's worksites that are within Federal OSHA's jurisdiction. The worksites selected for these monitoring visits will include the cited worksite at Atlanta Hartsfield-Jackson International Airport, as well as a representative sampling of worksites selected by the consultants, primarily from Delta's larger airport stations but also including at least one (1) of the Company's smaller stations, that are located in other Federal OSHA jurisdiction states. The monitoring visits shall include: physical observation of Covered Vehicles and of seat belt use by Delta employees on Covered Vehicles engaged in ground support operations; inspection of records relating to Covered Vehicle seat belt installation, maintenance, and seat belt use training; and interviews of a random sampling of employees about seat belt use training and practices at the worksite.
- Respondent agrees to permit OSHA to enter into and conduct monitoring inspections at the Company's worksites within Federal OSHA's jurisdiction to verify compliance with this Agreement. Respondent shall not require warrants for entry by OSHA, and shall not require subpoenas for access to documents, witnesses, or other information related to compliance with this Agreement. The scope of the OSHA monitoring inspections shall be limited to the verification of compliance with this Agreement, unless other non-compliant conditions are observed in the plain view of an OSHA compliance officer during the verification visit. Upon request at the onset of an OSHA monitoring inspection, Respondent will provide to the OSHA inspector records of seat belt use training and maintenance of Covered Vehicles at that monitored location.
- Complainant agrees that if, during the term of this Agreement, OSHA reaches a preliminary determination that Respondent may not be in compliance with this Agreement, OSHA shall first notify Respondent in writing to the Managing Director of Safety, Health & Environment, Delta Air Lines, Inc., Department 025, P.O. Box 20706, Atlanta, GA 30320-6001. Respondent will have 15 calendar days from its receipt of OSHA's notification to provide a written response to the Director of Enforcement Programs, U.S. Department of Labor, Occupational Safety and Health Administration, 200 Constitution Avenue, NW, Washington, DC 20210. Within 30 calendar days after OSHA's receipt of Respondent's written response, the Parties will enter into good faith discussions in an attempt to resolve the issue. If the Parties are unable to resolve the issue within 15 calendar days of entering into such discussions, Complainant shall determine the appropriate course of action.
- Each Party agrees to bear its own attorneys' fees, costs, and other expenses incurred by such Party in connection with any stage of the above-referenced proceeding including, but not limited to, attorneys' fees that may be available under the Equal Access to Justice Act, as amended.
- The Parties agree that none of the foregoing agreements, statements, stipulations, findings, reports, or actions taken by Respondent shall be deemed an admission by the Company of a violation of the Act or an admission of the allegations contained within the Citation and Notification of Penalty in this matter. The Parties further agree that the agreements, statements, stipulations, findings, reports, and actions taken herein: (a) are made solely for the purpose of compromising and settling this administrative matter amicably to avoid protracted and expensive litigation; (b) shall not be admissible in any forum as evidence of subsequent remedial measures; and (c) shall not be used in any judicial, administrative, or other dispute resolution forum, or for any other purpose whatsoever, except for proceedings under the Act.
- Complainant agrees that, upon receiving any request for information from any third party seeking any agreements, statements, stipulations, reports, and/or any other documents generated by Respondent as a result of requirements set forth in this Agreement, but which the Company has marked to identify the document as containing confidential trade secret or business confidential information, Complainant shall notify Respondent within five (5) calendar days so the Company can intervene to object to Complainant's production of said agreements, statements, stipulations, reports, and/or other documents.
- This Agreement shall become effective on the date that it becomes a Final Order of the Commission, and shall remain in effect for a term of two (2) years from that effective date. Before the termination date of this Agreement, either Party may give notice to the other that it wishes to extend the Agreement for another term. If a Party gives such notice in writing, the Parties agree to enter into good faith discussions to address the continuation of the Agreement. The Parties agree that the Agreement shall thereafter remain in effect for up to forty-five (45) calendar days after the end of the two-year term to allow the Parties to complete these good faith discussions.
PATRICK R. TYSON
DAVID L. SMITH
Attorneys for Delta Air Lines, Inc.
Constangy, Brooks & Smith, LLP
230 Peachtree Street, NW, Suite 2400
Atlanta, Georgia 30303-1557
The Parties agree that operation of "Covered Vehicles" (as further defined in Section III of this Appendix) on airport roadways and certain other travel routes ("Covered Routes" as further defined in Section IV of this Appendix) without the use of seat belts may present a risk of operator injury or death. The Parties recognize, however, that a significant number of the over 6,000 Delta-owned Covered Vehicles are not currently equipped with functioning seat belts. The Parties understand, therefore, that immediately equipping all Covered Vehicles with seat belts presents a challenge to the Company in terms of cost, labor, administration, and continuity of operations, as the Covered Vehicles are used around-the-clock for aircraft ground support operations at Delta's airport stations.
- COMPLIANCE MEASURES
The Parties thus agree to, and Complainant accepts, the following compliance measures during the term of the Stipulation of Settlement ("Agreement"):
- Delta will install seat belts on all Covered Vehicles used by the Company at all of Delta's airport stations that are located within Federal OSHA's jurisdiction.* The seat belts will be approved by the vehicle manufacturer for use with the Covered Vehicle and will be installed according to the vehicle manufacturer's specifications. Installation of the seat belts will take place during the vehicle's regularly scheduled preventive maintenance inspections and be completed during the first 12 months of the Agreement.
- Any new Covered Vehicles purchased by Delta after the effective date of the Agreement will be ordered from the vehicle manufacturer, distributor, or dealer already equipped with seat belts.
- Over the term of the Agreement and at the times specified in paragraphs 4-7 below, Delta will implement and enforce a program requiring its employees to wear seat belts when operating or riding on any Covered Vehicle while traveling on a Covered Route at any of Delta's airport stations that are located within Federal OSHA's jurisdiction.
- During the first six (6) months of the Agreement, as an interim protective measure while seat belts are being installed, Delta will conduct training of all of its approximately 16,000 employees who operate Covered Vehicles on the use of seat belts, when equipped, and on the safe operation of those vehicles, with particular emphasis on the safe traveling provisions of the OSHA Powered Industrial Trucks Standard (29 C.F.R. §1910. 178(n)) and on avoiding collisions and other unsafe operations that might present a risk of operator injury or death. Also, beginning sometime during the first six (6) months and continuing throughout the term of the Agreement, Delta will require all new operators of Covered Vehicles to complete this training prior to operating the Covered Vehicle at the worksite, and any Covered Vehicle operators who are involved in an accident or unsafe operation to repeat this same full safe operation training, in addition to any other re-training and evaluation specifically related to that operator's particular accident or unsafe operation incident, prior to resuming operation of a Covered Vehicle.
- Once trained as specified in paragraph 4 above, any Delta employee operating or riding on a Covered Vehicle that has been equipped with a seat belt will wear the seat belt when traveling on a Covered Route. Company supervisors will coach and counsel any employees who are observed not wearing a Covered Vehicle's seat belt when traveling on a Covered Route to wear that seat belt.
- Beginning after the first six (6) months of the Agreement, Company supervisors will reinforce the seat belt use requirement and track performance using a range of techniques such as, but not limited to: conducting daily shift briefings; reinforcing the seat belt use requirement at monthly safety meetings; tracking and enforcing seat belt use through documented observations; conducting random audits of compliance; and periodically setting up checkpoints at Covered Routes to assess seat belt use.
- Beginning at the end of the first twelve (12) months of the Agreement, Delta will implement a revised Pre-Operational Inspection ("POI") checklist for all Covered Vehicles that includes a requirement to inspect for the presence and condition of seat belts, and will provide a copy of that POI checklist to OSHA upon request. If it is determined from the POI that a seat belt is malfunctioning or missing, then the Company will require that the Covered Vehicle be immediately tagged as inoperable and taken out of service until the seat belt is repaired or replaced.
- DEFINITION OF COVERED VEHICLE
The term "Covered Vehicle" as used in the Agreement and this Appendix means a bag tug, belt loader, cargo tractor, and/or "bob tail" truck, as further defined below:
"Bag tug" means an internal combustion or electric powered vehicle designed and used to tow trailers or carts of passenger baggage to and from aircraft and/or airport baggage handling facilities, which is operated by a seated driver and may include additional seating for a single passenger, and which may or may not have an operator/passenger cabin that is either partially or fully enclosed. Bag tugs include, but are not necessarily limited to, the following makes and models: Clark (CT and DT); Tug Technologies (M3, MA, M1, and MZ); Tug/Equitech (M4); Charlatte; Toyota; Harlan (HTA); and Wol/Tug/Clk.
"Belt loader" means an internal combustion or electric powered vehicle equipped with an elevating conveyor belt that is designed and used to load and unload passenger baggage to and from the cargo hold of aircraft, and which is operated by a seated driver in an open cab that does not include additional seating for passengers. Belt loaders include, but are not necessarily limited to, the following makes and models: Tug Technologies (440E and 660/663); Charlatte, CBL; Lantis (600G); and Wollard.
"Cargo tractor" means an internal combustion or electric powered vehicle designed and used to tow carts, trailers, and/or other conveyances loaded with various forms of cargo or freight to and from aircraft and airport cargo/freight handling facilities, which is operated by a seated driver and may include additional seating for a single passenger, and which may or may not have an operator/passenger cabin that is either partially or fully enclosed. Cargo tractors include, but are not necessarily limited to, the following makes and models: Tug Technologies (MH, MR, and MT); Wollard (M100); and Wollard/Eagle/Tug.
"Bob tail truck" means a modified over-the-road pick-up truck with a shortened cargo bed that has been altered to haul, and/or to tow carts, trailers, and/or other conveyances loaded with, various forms of cargo or freight to and from aircraft and airport cargo/freight handling facilities, and which is operated by a seated driver in a fully enclosed cab that includes passenger seating. Bob tail trucks include, but are not necessarily limited to, the following make and model: Ford/Eagle.
- DEFINITION OF COVERED ROUTE
The term "Covered Route" as used in the Agreement and this Appendix means any route (including roadways that have been demarcated by airport authorities, Delta, or other airlines for vehicle traffic and which may or may not include pavement markings and/or traffic control signage) for traveling into and out of aircraft gates, remote aircraft parking areas, or aircraft maintenance hangars, which are all defined as the space in the vicinity of an aircraft in which ground support equipment is positioned for the purpose of servicing the aircraft, or for traveling into and out of areas used for positioning or servicing equipment, such as a baggage room, a cargo yard, or a vehicle maintenance shop.
- DELTA AIRPORT STATIONS WITHIN THE UNITED STATES
As of the date of Delta's execution of the Agreement, Delta is engaged in ground support operations where Company employees use Covered Vehicles at the following domestic airport locations in both Federal and State OSHA jurisdictions:
FEDERAL OSHA JURISDICTION
Baton Rouge, LA
Colorado Springs, CO
Devil's Lake, ND
Panama City, FL
Key West, FL
Sioux Falls, SD
Grand Forks, ND
Green Bay, WI
Great Falls, MT
Little Rock, AR
Kansas City, MO
Muscle Shoals, AL
New Orleans, LA
Oklahoma City, OK
Rapid City, SD
Fort Myers, FL
State College, PA
St. Louis, MO
STATE OSHA JURISDICTIONS
Cedar Rapids, IA
Sault St Marie, MI
Des Moines, IA
Fort Dodge, IA
Fort Wayne, IN
Grand Rapids, MI
Iron Mountain, MI
Int'l Falls, MN
Las Vegas, NV
Los Angeles, CA
Clear Lake, IA
Myrtle Beach, SC
| Norfolk, VA
Raleigh Durham, NC
Richmond, VA Roanoke, VA Rochester, MN
San Diego, CA
South Bend, IN Louisville, KY
San Francisco, CA San Juan, PR
Salt Lake City, UT Orange County, CA
Sioux City, IA
Traverse City, MI
Thief River Falls, MN
* In addition, over and above the requirements of the Agreement, Delta intends to install seat belts and implement the other measures set forth in this Compliance Plan at the Company's airport stations that are located in State OSHA jurisdictions.