UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|SECRETARY OF LABOR,||
OSHRC Docket No.
|UNITED PARCEL SERVICE, INC.,|
|SAMUEL J. BUCALO,|
STIPULATION AND SETTLEMENT AGREEMENT
The Secretary of Labor (Secretary) and United Parcel Service (UPS) stipulate and agree as follows:
- On June 6, 2005, the Secretary, through the Occupational Safety and Health Administration (OSHA) issued a Citation and Notification of Penalty as a result of an inspection that took place at UPS's workplace located at 11141 Canal Road in Sharonville, Ohio 45241. Citation 1, Item 2, as amended, alleged a serious violation of 29 C.F.R. §1910.37(a)(3). On August 14, 2007, a Decision and Order was issued by Administrative Law Judge Ken S. Welsch, acknowledging that OSHA had withdrawn Citation 1, Item 1, as well as affirming Citation 1, Item 2, Instances (a), (c), (f), (g), (j), (k), (l), and (m). On October 3, 2007, the Occupational Safety and Health Review Commission (Review Commission) directed the case for review. By the terms of this Stipulation and Settlement Agreement (Agreement), the parties hereby agree to a full and complete settlement of all issues arising from OSHRC Docket No. 05-1115 and OSHA Inspection No. 308788140.
- The parities stipulate and agree that the terms of this Agreement are intended to apply to all UPS facilities, within federal jurisdictions, where packages are sorted and consolidated for delivery to other locations. (Package Facilities). The parties to this Agreement recognize that some of UPS's package facilities are located in states that have assumed authority for the enforcement of OSHA standards pursuant to Section 18 of the Occupational Safety and Health Act of 1970, as amended (the Act), 29 U.S.C. §667. These state plan states are encouraged to honor or agree to the terms of this Agreement.
- OSHA agrees to withdraw Citation 1, Item 1 and Instances (b), (d), (e), (h), and (i) of Citation 1, Item 2. UPS agrees to withdraw its Notice of Contest with respect to Instances (a), (c), (f), (g), (j), (k), (l), and (m) of Citation 1, Item 2. Citation 1, Item 2, Instances (a), (c); (f), (g), (j), (k), (l), and (m) are affirmed as a serious violation of 29 C.F.R. §1910.37(a)(3) with a penalty of $4,000. The Secretary and UPS shall file a consent order with the Review Commission incorporating the terms of this Agreement.
- UPS represents that the conditions described in the affirmed Instances of Citation 1, Item 2 have been abated. UPS further agrees to send an abatement certification letter along with abatement documentation, in accordance with 29 C.F.R. §1903.19, to OSHA's Cincinnati Area Office, 36 Triangle Park Drive, Cincinnati, Ohio 45246-3411, by January 1, 2009.
- UPS agrees to pay OSHA the amount of $4,400.00 in full settlement of the assessed penalty in this matter within ten (10) days of the entry of an Order approving this Agreement. Payment shall be accomplished by mailing a check payable to "DOL/OSHA" to OSHA's Cincinnati Area Office at the address listed in the preceding paragraph.
- The parties agree that 29 C.F.R. §1910.37(a)(3) prohibits permanent or temporary placement of materials or equipment, including, but not limited to, packages, materials, freight, package trains or carts of all types, and roller T -stands, within the 28- inch-wide exit access portion of an exit route (the 28-inch rule). In some circumstances, due to the nature of UPS facilities and operations, compliance with the 28-inch rule may not be possible at all times. OSHA will not cite UPS for violation of §1910.37(a)(3) with respect to an operation listed in Appendix A, paragraph 1, provided that OSHA determines that UPS has implemented and effectively enforced the work rules described in Appendix A, Paragraph 2. If additional operations are subsequently identified by UPS as operations that should be included in Appendix A, the parties will, in good faith, consider whether this Agreement and Appendix A should be amended. Except as otherwise provided in this paragraph and paragraphs 7 and 13, nothing in this Agreement shall limit OSHA's right to use, as appropriate, enforcement methods provided under the Act.
- OSHA agrees that it will not issue a citation to UPS for violation of 29 C.F.R. §1910.37(a)(3) with respect to the use of easily detachable or movable C-slides to transfer or sort packages from one conveyor tray to a lower conveyor tray.
- Nothing in this Agreement or in Appendix A shall be construed to alter the design and construction requirements for exit routes in 29 C.F.R. §1910.36.
- UPS agrees that by March 31, 2009, it will develop and implement the work rules (referred to as written job methods or job responsibilities) in Appendix A, paragraph 2 at all package facilities within federal OSHA jurisdictions. UPS further agrees that it will provide training on these work rules or job responsibilities to each hourly employee and each supervisor whose work is subject to Appendix A. This training for existing employees, including supervisors, shall be completed by March 31, 2009. UPS shall provide this training to each such employee hired after March 31, 2009, before permitting the employee to work in an area covered by Appendix A. UPS shall provide annual refresher training on these work rules or job responsibilities to each hourly and supervisory employee whose work is subject to Appendix A. All training required in this paragraph shall be tailored to the facility in which it is conducted.
- OSHA agrees that during the term of this Agreement, if it reaches a preliminary determination that UPS may not be in compliance with this Agreement, OSHA shall notify UPS. UPS has five (5) working days from receipt of OSHA'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. This paragraph is not intended to limit the Secretary's right to use, as appropriate, enforcement methods provided by the Act.
- Each party agrees to bear its own attorney 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 fees which may be available under the Equal Access to Justice Act, as amended.
- Except for these proceedings, and matters arising out of these proceedings, or other proceedings under the Act, none of the foregoing agreements, statements, stipulations, or actions taken by UPS shall be deemed an admission by UPS of a violation of the Act or an admission of the allegations contained within the citations or notification of penalty in this matter. The parties agree that the agreements, statements, stipulations, findings, and actions taken herein are made solely for the purpose of compromising and settling this administrative matter amicably to avoid protracted and expensive litigation, and 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.
- UPS agrees to permit OSHA to enter into and conduct monitoring inspections of package facilities solely to verify compliance with this Agreement and Appendix. UPS agrees to require no warrants for entry by OSHA for this purpose, and to require no Subpoenas for access to documents related to compliance with this Agreement and Appendix.
- This Agreement shall become effective on the date it becomes a final order of the Review Commission. This Agreement shall remain in effect for a term of two (2) years from the effective date. The Agreement will continue thereafter on an annual basis unless either party gives notice in writing to the other party within 45 days of the end of each one-year period. If a party gives such written notice, the parties agree to enter into good faith discussions to address the continuation of the Agreement. The parties agree that the Agreement shall remain in effect for up to 45 calendar days to allow the parties to complete these good faith discussions.
- A copy of this Agreement will be posted at the cited facility on January 9, 2009, in accordance with Rules 7 and 100 of the Rules of Procedure of the Occupational Safety and Health Review Commission.
SETH D. BRUCKNER
United Parcel Service
Corporate Legal Department
55 Glenlake Parkway, NE Atlanta, GA 30328
AMIR C. TAYRANI
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
GREGORY F. JACOB
Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
CHARLES F. JAMES
Counsel for Appellate Litigation
PETER J. VASSALO
Attorney for the Secretary of Labor
U.S. Department of Labor
Office of the Solicitor
200 Constitution Avenue NW
Washington, DC 20210
- This compliance plan covers the following operations:
- Irregular package trains are stopped or parked in exit routes to load. and unload packages;
- Sorting operations when packages, materials, or equipment must temporarily be placed on the floor of the sort aisle; and
- Loading and unloading trailers, straight trucks, package cars, and other vehicles when packages, materials, or equipment must temporarily be placed on the walkway or platform adjacent to the vehicle or on the floor of the vehicle, or packages spill from a conveyor onto the floor of the vehicle or adjacent areas.
- For the operations listed in Paragraph 1, the Secretary accepts the following compliance measures:
- UPS shall implement and enforce written job methods requiring that when an irregular train is stopped or parked in an exit route to load and unload packages in a manner that leaves an unobstructed exit access that is less than 28 inches wide, the train shall be stopped or parked no longer than necessary to load or unload the packages and shall be attended at all times. The train is considered "attended" when the driver or designated, qualified attendant is in the train cab or working within 50 feet of the train, and is responsible, as part of his or her written job methods, for moving the train promptly in an emergency.
- UPS shall implement and enforce written job methods requiring that packages, materials, or equipment placed temporarily on the floor of the sort aisle shall be placed on one side of the aisle so as to leave at least one path for exit access, even if less than 28 inches of clearance remains.
- UPS shall require that each loader, unloader, pickoff person and supervisor involved in loading and unloading a trailer, straight truck, package car, or other vehicle is responsible, as part of his or her written job methods, for monitoring conditions in and around the vehicle during loading and unloading operations to ensure that temporary impediments created by placed or fallen packages are minimized.
- UPS shall implement and enforce a written job method requiring that packages, materials, or equipment may not be placed permanently or temporarily within the 28-inch-wide exit access in front of an exit door or at the top or bottom of a stairway that is part of an exit access.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Stipulation and Settlement Agreement was sent via United States Mail and facsimile on this 6th day of January, 2009, to:
Amir C. Tayrani
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
Samuel J. Bucalo
6158 King Oak Drive
Cincinnati, Ohio 45248
PETER J. VASSALO
the Secretary of Labor