Corporate-Wide Settlement Agreements - Table of Contents Corporate-Wide Settlement Agreements - Table of Contents

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR

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OSHRC Docket Nos. 11-1829

OSHA Inspection Nos. 314592148

REGIONV

Complainant,

v.
MOHAWK INDUSTRIES, INC.
Respondent.

STIPULATION OF SETTLEMENT

Complainant and Respondent (together, the "Parties") hereby stipulate and agree as follows:

  1. Respondent Mohawk Industries, Inc. ("Mohawk") was cited on June 6, 2011, for alleged violations of the Occupational Safety and Health Act ("Act") and was issued a Citation and Notification of Penalty.

  2. Respondent is an employer within the meanmg 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 lO(c) of the Act.

  3. Complainant hereby amends Citation 1, Item 1 of the above-referenced Citation and Notification of Penalty to delete Instances a and bin their entirety and to replace the alleged violation description for Instance c with the following:
    Air material separators (cyclone dust collectors with "bag style" attachments located at bins 1-3 and the "weigh" bin), as well as the "top half' of the material storage bins (bins 1-6) and the "weigh" bin, recycle air into the facility and are not manufactured from filtration material with capabilities of 99.9% efficiency at 10 microns.
    Complainant hereby further amends the Citation and Notification of Penalty to replace the alleged violation description for Citation 1, Item 2 with the following:
    The employer did not maintain surfaces of "mold" department/area equipment including, but not limited to, ductwork, framing of material storage bins, the top of material storage bins and platforms associated with material storage bins free from flammable accumulations of polymer foam carpet pad dust. Due to this condition, employees working in this area are exposed to increased risk of injury related to potential fire events.
    The Parties stipulate and agree that Citation 1, Items 3 and 4 and Citation 2, Items 1 and 2 of the Citation and Notification of Penalty shall remain as written, except that the total penalty amount for Citation 1 shall be amended to $100.

  4. The parties stipulate and agree that Citation 1, Item 1, Instance c and Citation 1, Item 2 of the above-referenced Citation and Notification of Penalty are further amended to include the terms of this Stipulation of Settlement ("Agreement") as required abatement, and that those abatement measures are required of Respondent and acceptable to Complainant as full and complete abatement of those amended violations. The Parties stipulate and agree that abatement certification and documentation has been provided and accepted as adequate for Citation 1, Item 1, Instances d and e and for Citation 1, Item 4, and that the violations alleged in Citation 1, Item 3 and Citation 2, Items 1 and 2 were corrected during the OSHA inspection.

  5. With respect to Citation 1, Item 1, Instance c and Citation 1, Item 2 of the above-referenced Citation and Notification of Penalty as amended herein, 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 paragraphs 13 and 14 of this Agreement within 1 0 calendar days after expiration of the time periods specified in those paragraphs for completion of each of those measures.

  6. 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 paragraphs 13 and 14 of 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.

  7. The Parties understand and agree that a failure to perform in good faith any of the abatement measures required in paragraphs 13 and 14 of this Agreement may be cited as failure to abate under Section lO(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.

  8. Respondent hereby withdraws its notice of contest to the above-referenced Citation and Notification of Penalty, as amended and set forth herein, and the Parties agree to, and hereby jointly move for, the entry of a final, enforceable Order of the Commission consistent with the terms of this Agreement.

  9. Respondent certifies that, at the cited worksite, there is no authorized employee representative of those of Respondent's employees 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 work:site on September 21 2012, in accordance with Rules 7 and 100 of the Rules of Procedure of the Commission. Further, the Respondent agrees to post this Agreement at the Covered Facilities identified in paragraph 10 below.

  10. The Parties stipulate and agree that the terms of this Agreement are intended to apply to each of Respondent's four (4) "rebond" carpet pad manufacturing facilities that are located within Federal OSHA's jurisdiction and manufacture carpet pads by grinding, mixing, and then "re-bonding" together recycled polymer foam materials, including flexible polyurethane, polyether, and polyester foams. Those four "Covered Facilities" include the cited facility, located at 143 Commerce Street, Johnston, Ohio, as well as three similar facilities, located at: 3100 Industrial Drive, Commerce, Texas; 180 Church Street, Torrington, Connecticut; and 7782 Magnolia Industrial Boulevard, Tifton, Georgia.

  11. Respondent has engaged combustible dust expert and Licensed Professional Fire Protection Engineer John M. Cholin of J.M. Cholin Consultants, Inc. (''the Expert"), who is acceptable to both Respondent and OSHA, to assess potential fire and/or explosion hazards that might be associated with dust generated during Respondent's handling and/or processing of polymer foam materials in carpet pad manufacturing operations at the Covered Facility in Johnstown, Ohio. Mr. Cholin has drafted and provided to the Directorate of Enforcement Programs in OSHA's National Office an Expert's written report on his findings, conclusions and recommendations for abating any such fire and/or explosion hazards found at that Johnstown Covered Facility.

  12. During the first three (3) months of this Agreement, Respondent will implement the following interim protection measures as recommended by the Expert at all four of the Covered Facilities: procedures and schedule for periodic clean up and removal of polymer foam dust from any surfaces where it might have accumulated; combustible dust awareness training for all affected employees; monthly inspections of fire suppression sprinkler systems, both within the polymer foam handling equipment and throughout the mold department at each of the Covered Facilities; retraining of all employees on the Covered Facility's emergency evacuation plan; and at least one evacuation drill at each Covered Facility during every three (3) month period throughout the two-year term of this Agreement.

  13. Consistent with the Expert's written report provided to OSHA, during the first 12 months of this Agreement, Respondent agrees to implement the Expert's recommendations for engineering, work practice, and/or administrative controls to abate any fire and/or explosion hazards found by the Expert to exist at the Johnstown Covered Facility as a result of the presence of polymer foam dust and as needed to achieve compliance at that location with National Fire Protection Association 654 Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids, 2006 Edition (''NFPA 654"). Respondent further agrees that upon completion of the implementation of the recommended controls, it will direct the Expert to review the completed control measures and notify the Directorate of Enforcement Programs in OSHA's National Office whether the measures have been implemented as recommended.

  14. During the two (2) year term of this Agreement, Respondent agrees to (a) engage the Expert to assess potential fire and/or explosion hazards that might be associated with dust generated during Respondent's handling and/or processing of polymer foam materials in carpet pad manufacturing operations at the three additional Covered Facilities in Commerce, Texas, Torrington, Connecticut, and Tifton, Georgia, (b) provide to the Directorate of Enforcement Programs in OSHA's National Office the Expert's written report on his findings, conclusions and recommendations for abating any such fire and/or explosion hazards found at that those three Covered Facilities, and (c) implement the Expert's recommendations for engineering, work practice, and/or administrative controls to abate any fire and/or explosion hazards found by the Expert to exist at those three Covered Facilities as a result of the presence of polymer foam dust and as needed to achieve compliance at those locations with both NFPA 654 and the National Electrical Code (NFP A 70). Respondent further agrees that upon completion of the implementation of the recommended controls, it will direct the Expert to review the completed control measures and notify the Directorate of Enforcement Programs in OSHA's National Office whether the measures have been implemented as recommended.

  15. Complainant agrees that OSHA shall not cite Respondent either under the Occupational Safety and Health Act's General Duty Clause (Section 5(a)(1)) or the General Housekeeping Standard (29 C.F.R. §1910.22(a)) at the Johnstown Covered Facility during the first 12 months of this Agreement, unless OSHA determines that the Company has not adequately implemented at that facility the interim protection measures in accordance with paragraph 11 (c) of this Agreement, or is not engaging in good faith in implementation of the control measures recommended for that facility by the Expert in accordance with paragraph 13 of this Agreement.

  16. Complainant agrees that OSHA shall not cite Respondent either under the Occupational Safety and Health Act's General Duty Clause (Section 5(a)(1)), the General Housekeeping Standard (29 C.F.R. §1910.22(a)), or the Electrical Hazardous Classified Locations Standard (29 C.F.R. §1910.307) at the Covered Facilities in Commerce, Texas, Torrington, Connecticut, and Tifton, Georgia, during the two (2) year term of this Agreement, unless OSHA determines that the Company has not adequately implemented at those facilities the interim protection measures in accordance with paragraph 11 (c) of this Agreement, or is not engaging in good faith in the implementation of the control measures recommended for those facilities by the Expert in accordance with paragraph 14 of this Agreement.

  17. Respondent agrees to monitor its progress implementing the Expert's recommended control measures at the Covered Facilities, and to provide written progress reports on the status of that activity every three (3) months after the effective date of this Agreement until implementation of the recommended measures is completed to individuals designated by OSHA for the receipt of such reports.

  18. Respondent agrees to permit OSHA to enter into and conduct monitoring inspections at the Covered Facilities 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

    19. .
  19. 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 Director of Corporate Safety, Mohawk Industries, Inc., 1215 Riverbend Road, Dalton, GA 30721. 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.

  20. Except as otherwise provided, nothing in this Agreement shall limit OSHA's right to use, as appropriate, enforcement methods provided under the Act.

  21. 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.

  22. 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 and (b) shall not be admissible in any forum as evidence of subsequent remedial measures. It is not the Parties' intention that this Agreement be used in any judicial, administrative, or other dispute resolution forum, or for any other purpose whatsoever, except for proceedings under the Act.

  23. 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.

  24. 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.

FOR RESPONDENT:

Date: 9/21/2012

DAVID L. SMITH
PATRICK R. TYSON

Attorneys for Respondent
Constangy, Brooks & Smith, LLP
230 Peachtree Street, NW, Suite 2400
Atlanta, Georgia 30303-1557

GARY LANSER

Senior Vice President
Flooring Division
Mohawk Industries, Inc.
P.O. Box 1006
Dalton, Georgia 30722
 FOR COMPLAINANT:

Date: September 24 2012

Mary Anne Garvey
Kenneth A Hellman

Attorneys for Complainant
U.S. Department of Labor
Office of the Solicitor
881 Federal Office Building
1240 East Ninth Street
Cleveland, Ohio 44199

Date: September 24, 2012

THOMAS M. GALASSI

Director, Directorate of Enforcement
Programs
Occupational Safety and Health
Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Corporate-Wide Settlement Agreements - Table of Contents Corporate-Wide Settlement Agreements - Table of Contents