_____________________________________ : : ELIZABETH DOLE, : SECRETARY OF LABOR : : Complainant, : : OSHRC Docket: No. 90-152 v. : : THE BUDD COMPANY, and its : successors, : : Respondent. : _____________________________________:
Complainant and Respondent have reached a full and complete settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission, OSHA Inspection No. 18252510. The parties hereby agree as follows:
(a) The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651 et seq.)(hereinafter the "Act").
(b) Respondent, The Budd Company, is a corporation with its principal place of business located in Troy, Michigan. At all times material to this proceeding Respondent has been engaged in the business of manufacturing in the transportation industry. During the course of its business, its employees perform various tasks in the nature of manufacturing. During the course of its business, Respondent uses materials and equipment which it receives from places located outside Michigan. Respondent, as a result of these aforesaid activities, is an employer engaged in a business affecting commerce as defined in Sections 3(3) and 3(5) of the Act, and has employees as defined by Section 3(6) of the Act, and is subject to the requirements of the Act.
(c) As a result of an OSHA Inspection No. 18252510 conducted on June 13, 1989 through November 28, 1989, at Respondent's Philadelphia, Pennsylvania plant (hereinafter the "Inspection"), citations alleging violations of the Act were issued to Respondent on December 12, 1989, pursuant to Sections 8 and 9 of the Act. The citations allege violations of the noise and hearing conservation standard, 29 C.F.R. 1910.95, the recordkeeping standard, 29 C.F.R. 1904.2(a),and various other standards found in 29 C.F.R. 1910. Notifications of proposed penalties in connection with these alleged violations were also issued to Respondent on December 12, 1989.
(d) Respondent disagreed with the citations and notifications of proposed penalties and filed a timely Notice of Contest with the Secretary of Labor, which was transmitted to the Commission pursuant to Section 10(c) of the Act.
(a) This Stipulation and Settlement Agreement (hereinafter the "Agreement") is intended to settle all outstanding OSHA citations and proposed penalties at Respondent's Philadelphia, Pennsylvania facility resulting from the Inspection within the requirements of Rule 100 of the Commission. The Agreement also provides for action by Respondent concerning recordkeeping and hearing conservation at all of the facilities listed in Appendix A, including the Philadelphia facility.
(b) The parties to this Agreement recognize that certain of the facilities enumerated in Appendix A are located in states which have assumed authority for the enforcement of OSHA standards pursuant to Section 18 of the Act. (Those plants are followed by an asterisk (*) in Appendix A). The states are encouraged to honor or to agree to the terms of this Agreement, and to this end it is the parties' intent to meet with each relevant state OSHA authority to attempt to execute an agreement similar to this Agreement.
(a) Respondent agrees to withdraw its Notice of Contest to the citations and notification of proposed penalties as such citations and notification of penalties have been amended by this Agreement and to pay the U.S. Department of Labor the amount of $1,500,000 in full settlement of the penalties proposed in the citations and notification of proposed penalty. Respondent agrees to provide payment of this amount to OSHA within thirty days after this Agreement becomes a final order.
(b) Complainant agrees that this payment from Respondent satisfies the proposed penalties for the citations and notification of proposed penalties issued as a result of the Inspection and this Agreement amends the citations and notification of proposed penalties to reduce the total penalty proposed to $1.5 million.
A. Respondent agrees that it will complete the actions set forth in this Paragraph V, by the dates set forth below, at its Philadelphia, Pennsylvania facility, and the parties hereto agree that such actions shall constitute abatement of all violations alleged in the OSHA citations issued as a result of the Inspection. The abatement dates set forth in this Paragraph 5 supersede and amend the abatement dates proposed in the Citation. Paragraphs (1) and (2) below apply to all Appendix A facilities, unless otherwise noted. Prior to the dates set forth in (1) and (2) below, Respondent will review the hearing conservation and recordkeeping programs at the facilities listed in Appendix A, other than the Philadelphia plant, and, if necessary, make any corrections required by this Paragraph V at those facilities, and such action shall constitute compliance with the terms of this Agreement. Abatement shall consist of the following:
(1) Hearing conservation
(a) By no later than September 1, 1990, Respondent shall have in place a hearing conservation program in accordance with the provisions at 29 C.F.R. 1910.95.
(b) Because certain violations cannot be abated because of the passage of time, Complainant shall not cite Respondent for any violation of the hearing conservation requirements of 29 C.F.R. 1910.95 that allegedly occurred prior to May 1, 1990; e.g. failure to give employees audiometric testing in the past.
(a) Respondent will by June 1, 1990, enter on the relevant OSHA 200 logs, the cases for which it was cited in the Inspection.
(b)(i) Respondent has initiated a program to examine relevant records in its possession of all employees, to ensure that the OSHA required records of its Philadelphia facility and the remaining facilities listed in Appendix A are in compliance with the regulations at 29 C.F.R. Part 1904, the instructions on OSHA Form No. 200 Log, and the Revised Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics in April 1986 ("1986 BLS Guidelines"). This program shall be limited to the Period January 1, 1987 to the date of this Agreement.
violation of 29 C.F.R. Part 1904 for an incident that occurred prior to January 1, 1987.
required in Paragraph V(2)(b)(i) above by September 1, 1990.
Philadelphia facility and the remaining facilities listed on Appendix A, its occupational injury and illness recordkeeping practices in accordance with the recordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLS Guidelines, as the same may be amended from time to time.
recordkeeping to train those of its employees having responsibility for OSHA recordkeeping at the Appendix A facilities prior to August 1, 1990. The training program will be conducted by individuals knowledgeable in OSHA's recordkeeping requirements. The training program will cover the regulations at 29 C.F.R. Part 1904, the instructions on OSHA Form No. 200 Log, the 1986 BLS Guidelines and the Provisions of this Agreement.
(c) Specific Recordkeeping Issues (i) Use of steri-strips and butterflies For cases occurring after January 1, 1987, Respondent will record on the OSHA Form No. 200 steri-strip and butterfly use cases at facilities listed in Appendix A.
(ii) Recordation of hearing loss a) From January 1, 1987 to August 31, 1990, Respondent agrees with respect to the Philadelphia plant only that it shall record on the OSHA Form No. 200 changes in hearing threshold relative to the appropriate baseline audiogram of an average of 20 dB or more at 2000, 3000, and 4000 Hz in either ear unless determined by the audiologist, otolaryngologist or physician that the shift is not work related or aggravated by occupational sound level exposures. However, if OSHA or the Bureau of Labor Statistics issues subsequent guidelines on this issue, then Respondent shall conform its recordation of hearing loss to the parameters set forth therein as of the date the guidance becomes effective. Respondent shall complete requirements of this paragraph by September 1, 1990.
listed in Appendix A Respondent agrees that it shall record on the OSHA Form No. 200 changes in hearing threshold relative to the appropriate baseline audiogram of an average of 10 dB or more at 2000, 3000, and 4000 Hz in either ear unless determined by the audiologist, otolaryngologist or physician that the shift is not work related or aggravated by occupational sound level exposures. If guidelines are issued in regards to recording threshold shift, Respondent agrees to follow the appropriate guidelines as they become effective.
only if the shift has been confirmed following a retest as allowed by the Standard or 30 days has lapsed from the time Respondent has knowledge of the Standard Threshold Shift and no retest is provided. If guidelines are issued in regards to recording such threshold shifts, Respondent agrees to follow the appropriate guidelines as they become effective.
(iii) No citation will be issued by Complainant for failing to record within six working days, any incident occurring prior to April 1, 1990 which is recorded by Budd during the record review provided for in the Stipulation and Settlement Agreement
(3) Sound Level Controls - Philadelphia facility.
This Paragraph V(3) applies to the Philadelphia facility only. (a) By no later than September 1, 1990, Respondent shall implement the engineering controls specified in the Agreement between Complainant and Respondent dated September 6, 1979 in the areas cited by OSHA in the Citations issued as a result of the Inspection. Respondent agrees to do the following:
* Commence a program for the survey and control of air leaks as of April 15, 1990
* Installation of "quiet nozzles" by May 15, 1990
* Commence a program for quieting of open gear guards using sound damping materials on gear covers where they exist, when covers are repaired or serviced as of April 15, 1990
* Installation of mufflers by September 1, 1990
In addition Budd agrees to conduct a pilot study by selecting one open gear power press and installing sound level damping material to the gears. The project will be evaluated for sound level reduction and feasibility of such controls. If the study is successful in the press of achieving a significant sound level reduction, and such controls are feasible, a plan will be developed to address other appropriate presses in Philadelphia. If the press utilized in the study does not achieve a significant sound level reduction as a result of utilizing sound level damping material or the sound level damping material is not feasible then Respondent shall only implement the engineering controls set forth above.
* Pilot study completed - July 30, 1990 * Report to OSHA on pilot study - August 15, 1990 * Implementation of pilot study, if feasible - April 30, 1991
If Respondent has proceeded in good faith and has not completed the above, Complainant will agree to a reasonable extension of the abatement date.
Complainant agrees that upon implementation of the aforesaid engineering controls, Respondent shall have implemented all presently feasible engineering and administrative controls and shall be in compliance with 29 C.F.R. 1910.95(b)(1).
(b) Respondent further agrees to implement a program to assure that the above-noted actions are continued into the future. Nothing in this Agreement is intended to limit Respondent's obligation to implement additional sound level control measures as appropriate where advances in technology render such controls "feasible" under 29 C.F.R. 1910.95(b)(1).
(c) The Secretary reserves the right to disagree with Respondent's determinations concerning the pilot study results and any future advances in technology. In the event of such a disagreement, Respondent and Complainant shall meet to attempt to resolve any disagreement. Complainant reserves the right to initiate any appropriate enforcement action under the Act in the event the disagreement cannot be resolved.
(4) Respondent, except as otherwise noted in this Agreement, has abated all of the violations stated in the Citation and Notification of Penalty. Respondent also agrees to abate the following citations and conditions as follows:
(a) Serious Citation Number 2
Item 1a June 30, 1990 1b May 30, 1990 1c April 30, 1990 6b June 30, 1990 (b) Other Citation Number 4 Item 3 May 30, 1990 4 July 31, 1990
(5) Complainant agrees to withdraw Serious Citation Number 2 Item 6a, 1910.1200(h).
Respondent further agrees to provide the Secretary with written confirmation no later than October 15, 1990 of the actions that have been completed. Respondent further agrees to provide the Secretary with annual reports on October 31, 1990 and October 31, 1991 concerning its recordkeeping and hearing conservation programs and sound level abatement covered by this Agreement. The reports shall detail the activities undertaken in effectuation of the terms of this Settlement Agreement. The reports shall be signed by a responsible management official and by the consultant, where one has prepared the report. Reports required under this Agreement shall be made available to appropriate employees' collective-bargaining unit representatives or, where no such unit exists, to safety and health committees.
Respondent agrees to require no warrants for entry by the Secretary's representative or for access to any documents related to compliance with this Stipulation and Settlement Agreement. Respondent agrees to permit reasonable inspections by representatives of the Secretary to ensure compliance with the terms of this stipulation and Settlement Agreement. Respondent agrees to communicate with the employees and employee representatives, if any, concerning the progress of the sound and hearing conservation programs in their facility and to involve employees in implementation of the program.
(a) The parties agree that the Secretary is entitled to seek and obtain an order under Section 11(b) of the Act, 29 U.S.C. 660(b), in the Third Circuit Court of Appeals to enforce the recordkeeping and hearing conservation issues covered in this Stipulation and Settlement Agreement. The Respondent consents to entry of such an order, the form of which is attached to this Agreement as Appendix B. In the event Complainant determines that Respondent is not implementing the applicable terms of this Stipulation and Settlement Agreement in good faith, Complainant may institute contempt proceedings in the Court of Appeals.
(b) This paragraph pertains to the compliance obligations of those facilities listed in Appendix A other than the Philadelphia facility. These facilities have not been cited by complainant for recordkeeping or hearing conservation requirements and complainant does not claim that any of these facilities have violated 29 C.F.R. 1904 or 29 C.F.R. 1910.95. However, Respondent, while denying the existence of any violations of the aforementioned standards at these facilities has agreed to take certain actions at these facilities.
Each party agrees to bear its own attorney's fees and costs incurred as a result of this action and Agreement.
Respondent does not admit the truth of any charges set forth in the citations and notification of proposed penalties. The parties have executed this Stipulation and Settlement Agreement solely for the purpose of compromising and settling this matter to avoid the expense of litigation and for no other purpose. The parties specifically agree that the Citation, this Agreement, and any final order entered by the Judge and/or the Occupational Safety and Health Review Commission and/or The United States Court of Appeals in this case shall not constitute and are not meant to be a finding of fact or conclusion of law, an admission of fact, an admission of the existence of any fact, a collateral estoppel or other estoppel, or res judicata in any proceeding in any state or federal court, agency or forum; with the sole exception that in any subsequent proceeding with respect to matters covered by this Agreement brought directly under the Occupational Safety and Health Act by the Secretary of Labor this Agreement shall have the full force and effect of a final order. The parties agree that the Citation does not make any charges either express or implied, that any allegation set forth therein was the cause, aggravation, or a cause proximate or otherwise of any accident, adverse health effect, or damages to any employee of Respondent or any other party. The parties also agree that the Citation, this Agreement and any order issued as a result of this Agreement shall not be admissible as evidence in any legal action filed against Respondent by a party other than the Secretary of Labor.
FOR RESPONDENT: FOR COMPLAINANT: THE BUDD COMPANY, SECRETARY OF LABOR and its successors U.S. DEPARTMENT OF LABOR _____________________________________ ________________________________ ROBERT J. WANGBICHLER ALAN MCMILLAN Vice President - Employee Relations Deputy Assistant Secretary The Budd Company of Labor for Occupational Safety and Health DATE: April 9, 1990 DATE: April 9, 1990 ROBERT P. DAVIS ____________________________________ Solicitor of Labor EDWARD D. WOLF Employee Relations Counsel MARSHALL HARRIS The Budd Company Regional Solicitor MATTHEW RIEDER Regional Counsel ____________________________________ for Occupational Safety PATRICK TYSON and Health Constangy, Brooks and Smith Counsel for Budd Company 230 Peachtree Street, N.W. Atlanta, Georgia 30303 ______________________________ KENNETH A. HELLMAN Senior Trial Attorney DATE: April 9, 1990 U.S. Department of Labor Office of the Solicitor 200 Constitution Ave., N.W. Washington, D.C. 20210 Budd Plants in OSHA National Agreement Plant Address Total Affil- Description Employ. iation Stamping & Frame Division Detroit 12141 Charlevoix Ave. 1,153 UAW Stamping and assembly Detroit, MI 48215 of body components for cars and trucks, die construction and tryout. Philadelphia 2450 Hunting Park Ave. 2,385 UAW Stamping and assembly Philadelphia, of body components for PA 19129-1397 cars and trucks, die construction and tryout. Shelbyville 1000 Old Brunerstown Rd 210 None Stamping and assembly Shelbyville, KY 40065 of body components for cars and trucks, die construction and tryout. Rochester 2573 S. Rochester Rd 172 None Product design, Rochester, MI 48063 manufacturing engineering, tool design and Division offices. APPENDIX A Plastics Division Carey County Road 96, 499 UAW Fiberglass-reinforced P.O.Box 36 polyester molded Carey, OH 43316 products for the automotive and truck industries. Kendallville 2620 Marion Dr. 338 None Fiberglass-reinforced Kendallville, IN polyester molded 46755 products for automotive, truck and marine products. North 100 S. Poe St. 307 UAW Fiberglass-reinforced Baltimore No. Baltimore, polyester molded OH 45872 products for automotive, truck and marine products. Madison 32055 Edward Ave. 115 None Product feasibility, Heights Madison Hts., MI design engineering, sales and Divisions offices. Van Wert 1276 Industrial Dr. 51 None Fiberglass-reinforced Van Wert, OH 45891 polyester compounds for the automotive, truck and marine product industries. Wheel and Brake Division Ashland 1025 Faultless Dr. 198 UAW Machining and assembly Ashland, OH 44805 of disc brake components for light trucks and passenger cars. Farmington 24755 Halsted 67 None Administration, design, Hills Farmington Hills, engineering, test and MI 48018 laboratory facilities and Division offices. Frankfort 3186 County Road 550 148 UAW Steel disc wheels and Frankfort, OH rims for highway trucks, 45628 trailers and buses. Johnson City 506 Milligan Highway 400 UAW Machining and assembly Johnson City, TN of hubs, drums and disc 37601 brake components for trucks and cars. ___________________________________ ELIZABETH DOLE, SECRETARY OF LABOR,: : Complainant, : : v. : OSHRC Docket : No. 89-152 : THE BUDD COMPANY, : and its successors : : Respondent. : ___________________________________:
More than thirty days having elapsed since service of the Settlement Agreement by mailing copies of the authorized employee representatives at each covered facility with federal OSHA jurisdiction and no objection to the time of abatement having been filed by an employee or authorized representative of employees, all matters encompassed within the agreement entered into by the parties have become a final order of the Occupational Safety and Health Review Commission.
CONSENTED TO BY: FOR COMPLAINANT: FOR RESPONDENT: _________________________ ______________________________ DATE: 4/9/90 DATE: April 9, 1990 SO ORDERED: _________________________ ADMINISTRATIVE LAW JUDGE Occupational Safety and Health Review Commission APPENDIX B IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________________________________ ELIZABETH DOLE, SECRETARY OF LABOR, : UNITED STATES DEPARTMENT OF LABOR, : Petitioner, : v. : No. __________________ THE BUDD COMPANY : and its successors, : Respondent. : ________________________________________
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION This cause was submitted on the application of the Secretary of Labor for SUMMARY entry of a judgement against respondents The Budd Company, enforcing the , 1990, final order of the Occupational Safety and Health Review Commission (commission) outstanding against Respondent is OSHRC docket No. 90-152. Pursuant to Section 11(b), 29 U.S.C 660(b), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., it is hereby:
ORDERED, ADJUDGED AND DECREED that the Commission's final order of , 1990, is hereby affirmed and that The Budd Company shall comply with the commission's final order of 1990, which incorporates the terms of a settlement agreement reached by The Budd Company and the Secretary of Labor on April 9, 1990, in OSHRC Docket No. 90-152.
_______________________________ CLERK United States Court of Appeals for the Third Circuit The foregoing Decree is consented to: The Budd Company: U.S. Department of Labor: _________________________ ____________________________ DATE: April 9, 1990 DATE: 4/9/90 U.S. Department of Labor Office of the Solicitor Washington, D.C. 20210
Mr. E.D. Wolf Employee Relations Counsel The Budd Company 3155 W. Big Beaver Road Troy, MI 48084
Dear Mr. Wolf:
On April 9, 1990, the U.S. Department of Labor and The Budd Company entered into an agreement (Agreement) settling citations issued to the company's Philadelphia facility, as a result of the Inspection noted in the Agreement, and providing for additional action in the areas of hearing conservation and recordkeeping at Budd's other facilities as listed on Appendix A of the Agreement. During the course of the discussions certain understandings were reached concerning various issues both for the Philadelphia facility and for others. The undersigned has the authority to make the commitments for the Department of Labor set forth below.
Concerning the issue of recording past cases, although Budd will be conducting an audit of its OSHA injury and illness records of Appendix A facilities for purposes of assuring proper entries of recordable cases on the OSHA 200 log, the Department indicated that for any recorded cases where the incident occurred prior to April 1, 1990, Budd is not required to complete an OSHA Form 101. Budd will maintain employees' medical records such that they are available for purposes of providing full access to information relating to any recordable injuries and illnesses.
The parties have agreed that Respondent will record all STS' (Standard Threshold Shifts) that occur after August 30, 1990 on its OSHA 200 log and will not require Respondent to record prior STS' on its past logs. It is anticipated that this process will result in recording additional STS'. However, if OSHA or the Bureau of Labor Statistics issue subsequent guidelines on this issue, the Budd Company shall follow such guidelines.
In situations where The Budd Company has retained a consultant to aid in the administration of its hearing conservation program, the time requirements of 29 C.F.R. 1910.95 regarding retesting and notification of employees of an STS shall run from the time Respondent has knowledge of such information, provided that Budd makes a timely effort to obtain such information from its consultant.
Kenneth A. Hellman