UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|HILDA L. SOLIS, Secretary of Labor,
United States Department of Labor,
OSHRC Docket No. 10-1817
Inspection No. 314258146
COMPANY, L.P., and its Successors,
Come now Complainant and Respondent and submit the following Settlement Agreement pursuant to Rule 2200.100 of the Commission's Rules of Procedure:
1. This Settlement Agreement (the "Agreement") specifies the terms of settlement as set out below for each contested item and disposes of all issues in the case.
2. Affected employees have not filed objections to the reasonableness of any abatement time.
3. Complainant amends the Citation and Proposed Penalty in this matter as follows:
A. The following Items are withdrawn: 3, 4, 6, 7, 11, 12, 16, 19, 20, 21, 26, 29, 34, 44, 49, 53, 57, 58, 60, 61, 79, and 80. The withdrawal ofthese items is not intended to affect the Secretary's interpretation of the standards, cotnpliance with the standards, nor their application to this employer.
B. The characterization of the violations alleged in the remaining item is amended from "willful" to "repeat."
C. With respect to the remaining items, Respondent shall record the cases on the respective year's Cooling Plant log in the manner indicated by the respective citation item. The abatement period (two weeks from the final order date) for so recording the remaining items is not amended. (See paragraph 5 for abatement certification and documentation.)
D. The total penalty for the remaining items is amended to $550,000. Respondent promises to pay this amount no later than 30 days after the Commission's order approving this Agreement becomes final. Respondent shall tender payment to: Occupational Safety and Health Administration, Houston North Area Office, 507 N. Sam Houston Pkwy. E., Suite 400, Houston, TX 77060-4007. The check shall be made payable to "U.S. Department of Labor - OSHA."
4. Respondent withdraws its notice of contest to the citation as amended by paragraph 3 of this Agreement, and the parties agree to the entry of a final enforceable order of the OSHRC consistent with the terms of this Agreement.
5. Respondent will certify abatement in accordance with the abatement verification provisions of 29 C.F.R. § 1903.19, including but not limited to, all certification, documentation, and posting requirements. Abatement certification shall he accomplished within 10 calendar days after the abatement date by mailing a letter to the area office address in paragraph 3.D above stating that the abatement specified in Paragraph 3.C has been completed, the date and method of abatement, and that affected en~ployeesa nd their representatives have been informed of the abatement. Abatement documentatio~ls hall consist of the Cooling Plant's corrected logs for 2008, 2009 and 2010.
6. Respondent states to Complainant that as remedial measures –
A. Respondent has provided detailed recordkeeping training by experienced instructors to its employees involved in the keeping of OSHA Form 300 logs. The training covered, among other things, those recordkeeping issues raised by the various citation items.
B. Respondent has had an outside auditor review its Fom 300 logs at its manufacturing facilities. All noted updates or corrections were made.
7. In addition to the abatement actions required by the amended Citation, Respondent further agrees to take the following actions:
A. To provide additional recordkeeping training to all employees of Goodman Manufacturing Company, L.P., involved in the keeping of OSHA Form 300 logs, and to obtain the agreement of Quietflex Manufacturing Company, L.P. ("Quietflex"), to provide recordkeeping training to all employees involved in the keeping of OSHA Form 300 logs. This training shall be provided to such Goodman and Quietflex employees by the end ofthe first quarter of 2012. Respondent shall notify Complainant's Houston North Area Office of the completion ofthis training within two weeks after the end ofthe first quarter of 2012.
B. To conduct an audit of the 201 1 and 2012 OSHA Form 300 logs by March 1, 2013 at the following facilities: Houston Furnace Plant (3300 W. 1lth St., Houston TX 77041); Houston Cooling Plant (6900 Overmeyer St., Houston, TX 77008); and the Houston Logistics Center (7401 Security Way, Houston, TX 77040).
C. To obtain the agreement of Quietflex that an audit of the 201 1 and 2012 OSHA Form 300 logs will be conducted by March 1,2013 at the following Quietflex facilities: the Quietflex plant in Houston (45 18 Britimoore Road, Houston, TX 77041); the Quietflex plant in Groveland, Florida (2004 O'Brien Road, Groveland, Florida 34736); and the Quietflex plant in Pittston, Pennsylvania (275 Centerpoint Boulevard, Pitiston, Pennsylvania 18640); and that reports of the results of such audits will be provided to Complainant in accordance with paragraph 7.D.
D. To provide to Complainant's Houston North Area Ofice within three months of the completion of all ofthe audits a report ofthe results of the audits, including the Quietflex audits, referenced in paragraphs 7.B and 7.C above. Complainant agrees that it will not cite Respondent or Quietflex for any failures to record or correctly record that are found by the auditors, or identified in the audit reports, if the noted failures have been corrected by the date the reports are provided.
E. To provide quarterly to Complainant's Houston North Area Office, for a one-year period beginning from the final order date, coples of the OSHA Form 300 logs for the Houston Furnace Plant and Houston Cooling Plant.
F. To provide quarterly to Complainant's Houston North Area Office, for a one-year period beginning frwn the final order date, the Respondent's calculations of DART and DAFWII rates for the Houston Furnace Plant and Houston Cooling Plant G To report within one week to Complainant's Houston North Area Office, for a one-year period beginning from the iinal order date, any amputation at the Houston Furnace Plant or Houston Coollng Plant.
8. Within forty-five (45) days of Complainant's receipt of the last audit report, the parties agree to have at least one face-to-face meeting to dlscuss any issues or concerns regarding completion of any and all measures agreed to in paragraphs 6 and 7 above.
9. The Citations are amended to include the abatement requirements as described in Paragraphs 3 (other than Paragraph 3.C, which applies only to the originally-cited facility, the Houston Cooling Plant) and 7 of this Agreement, which are intended to apply to all of Respondent's existing facilities, including facilities operated by Quietflex under federal OSHA jurisdiction but excludes those facilities located in states that administer state plans approved under Section 18 ofthe Occupational Safety and Health Act of 1970,29 U.S.C. 5 65 1 et seq. Use ofthe word "facilities" hereinafter in this Agreement shall refer only to Goodman and Quietflex facilities under federal jurisdiction. Respondent currently has Facilities covered by this Agreement in the following states: Texas, Pennsylvania, and Florida.
10. The parties agree that the Citation as amended and the specific abatement measures set forth in paragraph 3 and 7 of this Agreement shall be considered required abatement of the cited conditions and that the failure to perform any measures required in the Agreement may be cited as failure to abate under Section lO(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq, 29 U.S.C. § 659(b), to the same extent as if these abatement measures had been set forth from the outset in the Citations issued in this matter If the Secretary believes that Respondent is late in taking a required action, the Secretary shall notify tlle Respondent and glve Respondent a reasonable time of at least iifteen days to cure the lateness and, if so cured, shall not be considered a failure to perform or implement a required measure.
11. Respondent agrees that failure to implement the abatement measures set forth in paragraph 3 and 7 of this Agreement may be subject to an enforcement action brought by Complainant pursuant to Section 1l(b) ofthe 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 Citations issued in this matter. Respondent agrees that it will not oppose the entry of such an order of enforcement by the United States Court of Appeals to which Complainant presents this Agreement and supporting documents.
12. This Agreement shall expire on September 30, 2013. Respondent expressly agrees that all duties and obligations relating to its specific abatement actions required herein shall be fully completed and implemented prior to the expiration of this Agreement. In the event Respondent fails to timely abate and comply with the terms of this Agreement, Respondent will not assert that this expiration date in any way affects Respondent's duty to fully comply with the Agreement.
13. Neither this Agreement nor Respondent's consent to entry of a final order by the Commission pursuant to this Agreement constitutes any admission by Respondent of a violation of the Occupational Safety and Health Act or regulations or standards promulgated thereunder. Neither this Agreement nor any order ofthe Commission entered pursuant to this Agreement shall be offered, used or admitted in evidence in any proceeding or litigation, whether civil or criminal, except for proceedings and matters brought by the United States Government. Respondent is entering into this Agreement without any prejudice to its rights to raise any defense or argument in any future or pending cases before this Commission. Respondent retains the right to assert in any subsequent action or proceeding that any future or existing conditions identical or similar to those alleged in the original citations, the cithions as amended or the complaints do not violate the Occupational Safety and Health Act or any standard promulgated there under. By entering into this Agreement, Respondent does not admit the truth of any alleged facts, any of the characterizations of Respondent's alleged conduct or any of the conclusions set forth in the citations or amended citations issued in these matters.
14. Respondent promises to continue its good-faith efforts to comply with the Occupational Safety and Health Act.
15. Respondent certifies that the affected employees in this case are not represented by an authorized employee representative.
16. Respondent certifies that a copy of this settlement agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.100 of the Commission's Rules of Procedure, by posting the same on the ____ day of ___________ 2011.
17. Each party agrees to bear its own attorney's fees, costs and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney's fees which may be available under the Equal Access to Justice Act, as amended.
COMPANY, L.P., by and through its
General Partner, Goodman Holding
JAMES A. LASTOWKA, ESQ.
ARTHUR G. SAPPER, ESQ.
Signed this_______day of
Attorneys for Respondent,
McDermott Will & Emery LLP
600 13th Street, N.W.
Washington, D.C. 20005-3096
M. PATRICIA SMITH
Solicitor of Labor
JAMES E. CULP
MADELEINE T. LE
Counsel for Occupational Safety & Health
LINDSAY A. WOFFORD
Signed this_______day of
Attorneys for Complainant
U.S. Department of Labor
Office of the Solicitor
525 Griffin Street, Suite 501
Dallas, Texas 75202
Telephone: (972) 850-3100
Facsimile: (972) 850-3101
RSOL No. 10-01339
NOTICE TO AFFECTED EMPLOYEES NOT
REPRESENTED BY A LABOR ORGANIZATION
EACH AFFECTED EMPLOYEE WHO IS NOT REPRESENTED BY A LABOR ORGANIZATION HEREBY IS GIVEN NOTICE THAT ANY OBJECTIONS TO THE ENTRY OF AN ORDER TERMINATING THIS LITIGATION MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE THAT THIS SETTLEMENT AGREEMENT IS POSTED. SUCH OBJECTIONS MUST BE SET FORTH IN WRITING AND MAILED TO THE HONORABLE STEPHEN J. SMIKO, ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 100 ALABAMA STREET S.W., BUILDING 1924, ROOM 2R90, ATLANTA, GEORGIA, 30303 WITH COPIES TO COMPLAINANT AND RESPONDENT.