UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|HILDA L. SOLIS, Secretary of Labor,
United States Department of Labor,
OSHRC Docket Nos. 06-1974, 06-1975, 06-
OSHA Inspection Nos. 309705689,
|THOMAS INDUSTRIAL COATINGS, INC., and
Scope and Intent of Agreement
A. Complainant, Hilda L. Solis, Secretary of Labor, United States Department of Labor ("Complainant"), through the Occupational Safety and Health Administration ("OSHA") and Respondent, Thomas Industrial Coatings, Inc. and its successors ("Respondent"), agree to a full and complete settlement of the contested citations, proposed penalties, and abatement obligations at issue in the above-styled cases, pursuant to Rule 2200.100 of the Occupational Safety and Health Review Commission's ("OSHRC") Rules of Procedure and Fed. R. App. P. 42.
B. It is the intent of this ageement (hereinafter "Agreement" or "Settlement Agreement") to ensure that Respondent complies fully with the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. ("the Act"), and all regulations and standards promulgated thereunder at all of Respondent's worksites.
C. Affected employees are represented by the Painters Union.
Amendment of the Citations and Notifications of Penalty
The parties agree that the citations issued in Docket Nos. 06-1974, 06-1975, and 06-1542 (Inspection Nos. 309707479, 309705689, and 309750909 respectively) are amended by this Agreement to include the full terms of this Ageement including the abatement actions and dates stated herein.
The Citation for Docket No. 06-1542, Inspection No. 309750909 is hereby mended as follows:
Citation No. 1, Item 1 is withdrawn
Citation No. 1, Item 2 is withdrawn.
Citation No. 2, Item I is reclassified as serious and affimed as serious.
The Citation for Docket No. 06-1974, Inspection No. 309707479 is hereby amended as follows:
Citation No. 1, Item 2, and citation No. 2, Items 1, 3, and 5-7 are withdrawn.
Citation No. 1, Items 1, 3, and 4 are affirmed.
Citation No. 2, Items 2 and 4 are reclassified as repeated and affirmed as repeated.
The Citation for Docket No. 06-1975, Inspection No. 30905689 is hereby amended as follows:
Citation No. 1, Items 2a, 2b, 3 and Citation No. 2, Items 12-26 are withdraw.
Citation No. 1, Items 1 and 4 are afiirmed.
Citation No. 2, Items 2a and 2b, are reclassified as serious and affimed as serious.
Citation No. 2, Items 1 and 3-11 are reclassified as repeated and afimed as repeated.
The penalties proposed in the citations subject to this Agreement are amended to total payment of One Million Two Hundred Thousand Dollars ($1,200,000).
Withdrawl of Notice of Contest and Agreement Not to Appeal
Respondent hereby withhaws its notice of contest to the citations, proposed penalties and abatement dates as amended and set forth herein. Immediately following execution of this Agreement by both parties, Respondent shall voluntarily move to dismiss its appeal in Thomas Industrial Coatings, Inc. v. Sec'y of Labor, Case No. 11-1013 (D.C. Cir.). Both parties understand that they have a right to appeal the Occupational Safety and Health Review Commission's decision in Sec'y of Labor v. Thomas Industrial Coatings, Inc., OSHRC Docket No. 06-1542 (February 28, 2012), but, as part of this settlement, agree to forego that right.
Payment by Respondent
Respondent agrees to pay the sum of $1,200,000 in three equal installments of $400,000, with the first installment within thirty (30) days, the second installment within 180 days and the third installment within 360 days of the execution of this Agreement by both parties. Respondent shall tender payment to the U.S. Department of Labor, OSHA, in care of:
OSHA Kansas City Area Office
2300 Main Street, Suite 168
Kansas City, Missouri 64108
Checks shall be made payabIe to "U.S. Department of Labor—OSHA."
A. In the event of default on any of the payments, the total $2,426,900 penalty proposed by OSHA, less any amounts already paid, shall become immediately due and payable and interest shall be assessed against such remaining balance at the rate provided by 28 U.S.C. § 1961 from the date of default until this total amount is paid in full. A payment shall be deemed in default if it is not received by OSHA within fifteen (15) calendar days after the indicated due date. The requirement of accelerated payment in the event of default shall be at OSHA's sole discretion.
B. Except for default under paragraph V.A above, Complainant agrees that during the term of this Agreement, if it reaches a preliminary determination that Respondent may not be in compliance with this Agreement, Complainant shall notify Respondent. Resondent has five (5) working days from receipt of Complainant's notification to provide a written response. Within twenty (20) calendar days thereafter, the parties will enter into good faith discussions in an attempt to resolve the issue. If the parties are unable to resolve the issue following such discussions, the Secretary shall determine the appropriate course of action, which may include reclassifying the following citations as willful:
For Docket No. 06-1542, Inspection No. 309750909:
Citation No. 2, Item 1
For Docket No. 06-1974, Inspection No. 309707479:
Citation No. 2, Items 2 and 4
For Docket No. 06- 1975, hspection No. 30905689:
Citation No. 2, Items 1 and 3-11
A. Respondent states that it has abated the specific conditions described in all Citations, inclusive of all Items therein, together with all subparts.
8. Respondent agrees to perform the abatement measures set forth in Section VII of this Agreement.
Respondent additionally agrees to perfom the following abatement measures for a period of two years following the execution of this Agreement by both parties. All reports and notifications required under this Agreement shall be sent by email to OSHA's Kansas City Area Office at the following email address: email@example.com.
1. General and Fall Protection Training. Every supervisory employee who has not completed the OSHA 30 hour training in Occupational Safety and Health Standards for the Construction Industry (i.e., OSHA 30, or its equivalent) will complete it on or before 90 days from the execution of this Agreement by both parties. Every non-supervisory employee who has not completed the OSHA 10 hour training in Occupational Safety and Health Standards for the Construction Industry (i.e., OSHA 10, or its equivalent) will complete it prior to working at any jobsite. Every supervisory employee hired after the execution of this Agreement by both parties who has not completed the OSHA 30 training (or its equivalent), shall complete it within 90 days of hiring.
In addition to the requirements provided in this section above, every supervisory employee and every non-supervisory employee who, in the course of his or her work, may be exposed to a fall of six feet or greater, including but not limited to every employee working on bridges and scaffolds who has not compieted a minimum of eight hours of fall protection and scaffold safety training, shall complete a minimum of eight hours in fall protection and scaffold safety training ("Fall Protection Training"). Such Fall Protection Training shall, at a minimum, provide instruction to employees on the following topics: (a) identifying and avoiding fall hazards, (b) understanding the proper use and application of all fall protection equipment and systems made available to employees at the company's jobsites (including, without limitation, the set-up, inspection, use and maintenance of such equipment and systems), and (c) recognizing the hazards associated with the types of scaffold used by Respondent and the work performed by Respondent's employees on said scaffolds, and the procedues to control or minimize those hazards. Such Fall Protection training shall include instruction on Respondent's safety-related work rules including, but not limited to, Respondent's disciplinary procedures and the work rules identified in section VII.C.3 ("Work Rules") below. Such Fall Protection Training shall also include physical demonstrations by the instructor to show employees how to set-up, inspect, use and maintain all applicable fall protection equipment and systems. Employees shall complete the aforementioned Fall Protection Training within 30 days of the execution of this Agreement by both parties. Employees hired by Respondent after the execution of this Agreement by both parties shall complete the aforementioned Fall Protection Training before beginning work at any worksite where they may be exposed to a fall of six feet or greater. The Fall Protection Training shall be conducted by a third-party expert with education, training and experience in fall hazards, fall protection, and scaffold safety. For work performed by subcontractors engaged by Respondent, Respondent will ensure that it has adequate documentation that all employees of such subconstractors who may be exposed to a fall of six feet or greater have completed equivalent Fall Protection Training.
Respondent shall provide 16 hours of training per calendar year, in blocks of no less than 4 hours, to improve employee awareness of safety and health issues. This training shall, at a minimum, provide refresher training to employees on fall protection and the recognition and avoidance of other safety and health hazards at the company's jobsites and shall be mandatory for all employees. The requirements for this training, as set forth above, shall take effect within 30 days of the execution of this Agreement by both parties.
Respondent will conduct foremen meetings at least once a month to discuss safety and health issues during the length of this Agreement.
2. Site Specific Training. For all projects, Respondent shall develop and implement a Site Specific Safety and Health Plan (Plan) for the project site before commencing work. For projects scheduled to last more than five working days at one site, Respondent shall develop and implement a Site Specific Safety and Health Plan (Plan) for the project site at least one week before commencing work. Where feasibIe, Respondent shall develop and implement the Plan at least one week before commencing work on projects scheduled to last five or fewer working days. In accordance with 29 C.F.R. 1926.21 (b)(2), the Plan shall identify all workplace hazards and mandate the practices and procedures to avoid and control those hazards. The Plan shall specifically identify: (a) all potential fall hazards at the jobsite; (b) all fall protection systems to be used in each area of the jobsite and by each employee; and, (c) all fall protection equipment to be used in each area of the jobsite and by each employee. The Plan must be specifically tailored for the conditions and work at each particular worksite and may not identify more than one type of fall protection for a particular work phase unless the stated fall protection method is actually going to be in use at the site during that work phase.
Respondent will ensure that the job superintendent for the project site and all foremen have read the Plan before the work begins. Moreover, the Respondent shall train each employee on the site before he/she begins work on the site on all worksite hazards and means to control and protect against them, including but not limited to those identified in the Plan. A site superintendant, project manager or foreman at each active jobsite (or an individual with equivalent knowledge and supervisory authority) shall meet with all employees every day before work commences to discuss and review the requirements of the Site Specific Safety Plan that apply to that day's work.
Respondent will make a copy of each Plan available to all its employees at the worksite, and to OSHA's Kansas City Area Office prior to Respondent initiating work on a project. The Plan will be maintained at the worksite at all times. The Safety and Health Director shall have final authority for the effective implementation of the company's Site Specific Safety Plans.
Commencing on the 30th day following the execution of this Agreement by both parties, Respondent shall conduct a weekly safety and health meeting (a "Toolbox Talk") at each active jobsite. Each Toolbox Talk shall be conducted in accordance with the following requirements: (a) the instructor of the Toolbox Talk shall instruct all employees at the jobsite how to identify and avoid hazards to which employees are potentially exposed during the course of their work at the jobsite (including, without limitation, fall hazards); and (b) each Toolbox Talk shall be at least ten minutes in duration.
Respondent shall document the provision of training required under this Section. The documentation shall identify the trainer, subjects covered, the date, time, and place of training, and employees receiving the training. Employees shall personally sign off on having received the trainung.
B. Safety Expert/Consultant. Respondent agrees to retain one or more independent safety and health professionals who are qualified by education, experience and training with expertise in the fields of analyzing and evaluating scaffolds, fall hazards and related work place hazards ("Expert(s)"). Each Expert shall be a Professional Engineer (PE) or have a CSP ("Certified Safety Professional") or CHST ("Construction Health and Safety Technician") Certification from the Board of Certified Safety Professionals. Each expert shall have completed scaffold safety training and shall be competent to address the topics set forth in the Sections below. Respondent shall ensure that each Expert will regularly consult with, and consider input from, affected employees or their representative(s), if any. As detailed below, one or more Expert(s) engaged under this Agreement shall conduct an initial assessment of Respondent's safety program and procedures as set forth in section B.1 below, and then monitor and assess each of Respondent's workplaces for a period of two years as set forth in section B.2 below.
1. Initial Assessment. An Expert will provide a comprehensive written analysis of Respondent's health and safety program ("Expert Report") within ninety (90) days from the approval of the Expert by OSHA. The Expert shall analyze and evaluate Respondent's jobs currently in active, on-site progress; review all safety and health programs and procedures both written and oral; conduct employee interviews; and take whatever other actions and measures the Expert deems necessary or desirable in order to formulate the Expert Report. Respondent shall fully cooperate with the Expert and provide the Expert complete access to materials and personnel. The Expert shall provide an overall assessment of Respondent's health and safety program and shall determine Respondent's compliance with the Act and all applicable safety and health standards and regulations and document these findings in the Expert Report. The Expert shall also evaluate and make specific written recommendations regarding Respondent's development, documentation, implementation, and effectiveness of the items contained in Section VII, herein, and document these findings in the Expert Report. Where Safespan scaffolding is to be utilized, the Expert(s) shall expressly consider whether Respondent must use a Safespan-engineered system designed by a Safespan engineer, or the conditions under which Respondent may design a system itself using Safespan components. The same methodology must be used in the event Respondent intends to use other proprietary scaffolding systems. For all scaffolding systems used by Respondent regardless of type, the Expert shall evaluate whether a "qualified person" within the meaning of 29 CFR-1926.450 has designed the scaffold.
Respondent shall implement all feasible recomendations included in each Expert Report. Respondent shall prepare and provide to OSHA's Kansas City Area Office within thirty (30) days from receipt of each Expert Report a copy of the Expert Report along with a Statement of Action that addresses the recomendations set forth in the Expert Report. The Statement of Action shall address the corrective actions to be taken, the superintendent(s), manager(s), or supervisor(s) responsible for ensuring that corrective actions are taken, and the completion date(s).
2. Ongoing Monitoring and Assessment. Experts (which may include the Expert engaged to perform the tasks outlined in B.l above), will monitor and evaluate Respondent's jobs. Respondent shall notify an Expert engaged under ths Agreement of each project site prior to initiating work and, for Jobs in which Respondent's employees will work on scaffolds, the Expert shall conduct an on-site inspection of the worksite before erection of any scaffolding, following erection of the scaffolding but before project work begins, and upon completion of the project work but before commencement of the scaffold tear down or removal. The Expert shall at the close of his inspection provide Respondent with a written report of the inspection ("lnspection Report"). Before proceeding further with its work, Respondent shall abate and correct any hazards or deficiencies identified in the Inspection Report and otherwise implement all feasible recomendations of ihe Expert. For projects where a third-party erector is hired to erect the scaffold, or when Respondent uses scaffold drawings engineered specifically for the site, including Safespan approved drawings, the on-site inspection of the worksite by an Expert before erection of any scaffolding shall not be required. For projects for which a qualified person (within the meaning of 29 C.F.R. 1926.450) from Safespan or another third-party erector inspects the scaffolding or Safespan platform and issues a written certification of completion and fitness for use before project work begins, the inspection by an Expert following erection of the scaffolding but before project work begins shall not be required.
In addition to the above inspections, the Expert shall conduct unannounced spot checks on all of Respondent's jobs lasting thirty (30) days or more, and 25% of Respondent's jobs lasting between five and twenty-nine days, to ensure compliance with prior reports and to othewvlse evaluate the safety of said project sites. The Expert shall provide an Inspection Report to Respondent, and Respondent shall have the same obligations set out above to implement, correct and abate any recommendations and deficiencies before continuing with the project work.
For all Expert inspections conducted under Section VII.B.2 of this Agreement, Respondent shall provide to OSHA's Kansas City Area Office within three (3) working days from receipt of the Inspection Report, a copy of the Inspection Report along with a Statement describing the actions taken by Respondent, the superintendent(s), manager(s), or supervisor(s) responsible for the actions, and the completion date(s).
3. Retention of Experts. In hiring Expert(s) as required herein, Respondent shall submit the name and credentials of at least six (6) Expert candidates to OSHA's Kansas City Area Office within thirty (30) days following the execution of this Agreement by both parties. Complainant will have fourteen (14) days to object to any candidate suggested by Respondent. If Complainant objects to any candidate, Respondent shall select and submit another cmdidate within fourteen (14) days. Complainant will have fourteen (14) days to object to the new selection, until the Expert(s) have been selected. If Complainant does not respond to Respondent's selected candidates within fourteen (14) days, the selections shall be deemed acceptable. Respondent will ensure that each Expert who is retained to perfom services for Respondent pursuant to this Agreement will regularly consult with, and consider input from, affected employees or their representatives, if any. The Experts shall be retained by Respondent as soon as possible, and Respondent shall retain at least four Experts at all times during the length of this Agreement. Each Expert will begin work according to this Agreement as soon as possible after being retained by Respondent, and Respondent will comply fully with this Agreement after four (4) Expert candidates have been approved by OSHA. If Respondent hires an Expert during the period when OSHA is considering whether to approve the Expert, the Expert shall be considered provisionally approved until OSHA objects to the Expert, and the provisionally approved Expert may begin work according to this Agreement during this provisional approval period. Any inspection conducted by an Expert while he or she is provisionally approved shall count as an inspection made under Section VII.B.2 of this Agreement as long as the Expert meets the requirements set forth in Section VI1.B of this Agreement, even if OSHA later does not approve the Expert. Respondent may replace any Expert or add any additional Experts utilizing the above process. Replacement of an Expert shall not affect Respondent's duty to timely perform any requirement of this Agreement.
C. Personnel Policies
1. Safety and Health Supervision. Respondent shall ensure dedicated, ongoing, and comprehensive safety and health supervision at each worksite. To accomplish this, Respondent shall employ at least one Safety and Health Director, although depending on the scope, number, and location of Respondent's projects, more than one safety director may be required to ensure adequate supervision at each worksite. Each Safety and Health Director shall have a CSP ("Certified Safety Professional") Certification from the Board of Certified Safety Professionals and substantial experience and training in construction safety. The Safety and Health Director shall have authority over Respondent's foremen, job superintendents, and project managers regarding all safety and health-related issues, and shall have authority to mandate corrective action to eliminate a safety hazard as well as to stop work on the project until the hzard is corrected. Respondent will use its best efforts to employ a Safety and Health Director within sixty (60) days of the execution of this Agreement by both parties if it does not already have one. If it cannot hire a safety and health director within that period of time, Respondent will fill the position of corporate safety director through a third-party safety consultant who shall meet the criteria for corporate Safety and Health Director as described above.
2. Monetary Inducements and Disincentives. Respondent shall establish monetary inducements for its project superintendents and project managers to comply with applicable OSHA and corporate job safety requirements. Respondent agrees that the salary of its project superintendents and project managers shall be subject to an increase or reduction by an amount up to 10% but not less than 1% based on the number, type, and severity of the hazards identified in the Expert's unannounced spot checks described in section VII.B.2 above. Respondent shall document its actions and compliance with this section.
3. Work Rules on Fall Protection. Respondent shall enforce its work rule requiring termination of any employee or manager who fails to immediately tie off or otherwise have fall protection while situated on a platform or other working surface 6 feet above a lower level during the erection and/or dismantling of a scaffold. The terms "working surface," "platform," and "lower level" have the same meanings as used in 29 C.F.R. 1926 subparts L and M (Scaffolds and Fall Protection). Respondent shall establish and enforce a work rule requiring each and every platfom or other working surface 6 feet above a lower level to have readily accessible anchorage points or guardrails at each location on the working surface and platfom having open sides. The term "anchorage" has the same meaning as used in 29 C.F.R. 1926 subpart M (Fall Protection). Respondent shall enforce its work rule requiring daily, pre-work inspection of the worksite, including but not limited to any scaffolding, by the project foreman or other suvrvisor for hazards and defects. The foreman or other supervisor and at least one employee at the worksite shall verify in writing that the inspection occurred.
D. OSHA Notification and Access
1. OSHA Notification. Respondent will identify all jobsites within he jurisdiction of Federal OSHA for a period of two years following the execution of this Agreement by both parties. Each Monday morning, Respondent will provide to OSHA's Kansas City Area Office the name and location of each active project site. These notices shall include all active project sites, all project sites for which a pre-construction notice has been issued, and all project sites at which work will commence within one week or less.
2. OSHA Access. Respondent will allow OSHA access to all worksites without requiring OSHA to obtain a warrant. Respondent will not alter or shut down the worksite when OSHA arrives to begin an inspection. OSHA, in turn, will allow Respndent's representative a reasonable period of time to arrive at the worksite before beginning its inspection.
Term and Expiration of Agreement
This Agreement shall be effective on the date on which it is executed by both parties, and its term shall be two (2) years from the date on which this Agreement is executed by both parties. Respondent expressly agrees that ail duties and obligations relating to its specific abatement actions required herein will be accomplished on the dates specified in 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 its duty to comply fully with the Agreement.
Further Action by OSHA
Respondent agrees to allow OSHA entry without a warrant and/or access to documents without a subpoena as it inspects or otherwise monitors compliance with this Agreement. This Agreement shall not restrict OSHA's ability to take any and all enforcement measures permitted under the Act.
Notice, Service and Posting Requirements
A. Respondent certifies that affected employees are represented by the Painters union, and notice has been provided to affected employees by mailing a copy to Joe Barrett (BMST) this 15th day of March, 2012.
B. Respondent certifies that on March 15, 2012, notice of the foregoing was given to employees by posting a true copy (as executed by Respondent) of this Agreement, in accordance with Commission's Rules 7(g) and 100(c), 29 C.F.R. §p§ 2200.7(g) and 2200.100(c).
C. Unless otherwise specified in this Agreement, all written notices and communications shall be made to the following persons the Area Director for OSHA's Kansas City Area Office at the following email address: firstname.lastname@example.org.
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 that may be available under the Equal Access to Justice Act, as mended.
No Alteration of Employee Rights
Nothing in this Agreement alters in any manner the rights afforded employees under the Act.
No Retaliation or Discrimination
Respondent may not discharge or in any manner discriminate against an employee for exercising any right afforded under the OSH Act or for cooperating with an Expert or for otherwise participating in or complying with any provision in this Agreement.
Respondent, by entering into this Agreement, does not admit that it committed any violations of the Occupational Safety and Health Act, or any regulation or standard issued pursuant thereto. This Agreement is made in order to prevent further litigation and expense to both the Complainant and Respondent, and to resolve differences regarding compliance with the Act and/or interpretations of the Act and regulations. Except for these proceedings and other subsequent proceedings between the parties, none of the foregoing agreements, statements, findings and actions taken by Respondent will be admissible as evidence. The agreements, statements, findings and actions taken herein are made solely for the purpose of compromise and settling this matter economicailly and amicably and in lieu of protracted, expensive and time consuming litigation, and they shall not be used for any other purpose whatsoever except as provided herein. Payments made by Respondent under this Agreements are solely for the purpose of compromise and settling this matter and are construed by Respondent as neither penalties nor fines.
|THOMAS INDUSTRTAL COATINGS, INC.
Armstrong Teasdale LLP
7700 Forsyth, Suite 7700
St. Louis, Missouri 63105
(314) 621-5065 (facsimile)
Attorney for Thomas Industrial Coatings, Inc.
SECRETARY OF LABOR
Charles F. James
U.S. Departmant of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Washington, D.C. 20210
Directorate of Construction
Occupational Safety and Health
U.S. Department of Labor
200 Constitution Ave., N.W.
Washingon, D.C. 20210