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, United States
Department of Labor,

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OSHRC Docket Nos. 11-2870 & 11-2871

OSHA Inspection Nos. 29247 & 63192

Complainant,

v.

DEMOULAS SUPER MARKETS INC.,
dba MARKET BASKET,
Respondent.

SETTLEMENT AGREEMENT

Complainant and Respondent hereby stipulate and agree that:

(1) On October 7, 2011, Respondent was cited for alleged violations of the Occupational Safety and Health Act of 1970,29 U.S.C. § 651, et.q. (the "Act"), and was issued a Citation and Notification of Proposed Penalty related to OSHA Inspection No. 29247 (Docket No. 11-2870) (the "Rindge Citation") and a Citation and Notification of Proposed Penalty related to OSHA Inspection No. 63192 (Docket No. 11-2871) (the "Concord Citation"). The Rindge Citation and the Concord Citation proposed a combined total penalty of Five Hundred Eighty- Nine Thousand Two Hundred and 00/100 Dollars ($589,200.00).

(2) Respondent, an employer within the meaning of Section 3(5) of the Act, duly filed with a representative of the Secretary of Labor, notices of intent to contest the Rindge Citation, the Concord Citation, and the associated penalties. The notices were duly transmitted to the Occupational Safety and Health Review Commission (the "Review Commission") and it is agreed that jurisdiction of this proceeding is conferred upon said Review Commission by Section 10(c) of the Act.

(3) The Secretary of Labor has filed a Complaint with respect to the Rindge Citation and Concord Citation stating with particularity the violations alleged, the penalties proposed and the issues in contest before the Commission.

(4) Complainant and Respondent have agreed to resolve this matter, without the necessity of further pleadings, as follows:

(A) The Rindge Citation (Inspection No. 29247; Docket No. 11-2870). The following shall apply to the citation items issued in connection with the Rindge Citation:

(i) Citation 1, Item 1, a "Serious" violation under Sections 5(a)(l) and 17(b) of the Act, is hereby sustained as cited in the Rindge Citation.

(ii) Citation 1, Items 2a and 2b, which are components of one grouped "Serious" violation under Sections 5(a)(2) and 17(b) of the Act, are hereby sustained as cited in the Rindge Citation.

(iii) Citation 1, Items 3, 4, 5, 6, 8, 9, 10 and 11, all "Serious" violations under Sections 5(a)(2) and 17(b) of the Act, are hereby sustained as cited in the Rindge Citation.

(iv) Citation 1, Items 7a, 7b and 7c, which are alleged as components of one grouped "Serious" violation in the Rindge Citation, are hereby reclassified and grouped as components of one "Other-Than-Serious" violation under Sections 5(a)(2) and 17(c) of the Act.

(v) Citation 1, Item 12, which is alleged as a "Serious" violation in the Rindge Citation, is hereby reclassified to an "Other-Than-Serious" violation under Sections 5(a)(2) and 17(c) of the Act.

(vi) Citation 2, Item la, which is alleged together with Citation 2, Item lb as a component of one grouped "Willful" violation in the Rindge Citation, is hereby ungrouped and sustained as a separate "Willful" violation under Sections 5(a)(2) and 17(a) of the Act.

(vii) Citation 2, Item Ib, which is alleged together with Citation 2, Item 1 a as a component of one grouped "Willful" violation in the Rindge Citation, is hereby ungrouped and reclassified to a "Serious" violation under Sections 5(a)(2) and 17(b) of the Act.

(viii) (1) Citation 2, Items 2a and 2b, which are alleged as components of one grouped "Willful" violation in the Rindge Citation, are hereby reclassified and grouped as components of one "Repeat" violation under Sections 5(a)(2) and 17(a) of the Act.

(2) The charging language in Citation 2, Item 2b is hereby amended and restated as follows:

29 CFR 1910. 138(a): The employer did not select and require employee(s) to use appropriate hand protection when employees' hands were exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasion; punctures; chemical burns; thermal burns; and harmful temperature extremes.

a. Produce - Employees were exposed to severe lacerations from knives while breaking down produce, including, without limitation, corn and melons, where hand protection was not provided by the employer.

b. Deli - Employees were exposed to severe lacerations while cleaning the deli slicer, where hand protection was not provided by the employer.

c. Produce, Deli and Bakery - Employees were exposed to severe lacerations from knives while opening packages, where hand protection was not provided by the employer.

DeMoulas Super Markets, Inc dba Market Basket was previously citedfor a violation of this occupational safety and health standard which was contained in OSHA inspection number 309348563, citation number 1, item number], issued on 4/13/2006, with respect to a workplace located at 160 Littleton Road, Westford, MA.

(ix) Citation 3, Items 1, 2 and 3, which were alleged as separate "Repeat" violations in the Rindge Citation, are hereby grouped as components of one "Repeat" violation under Sections 5(a)(2) and 17(a) of the Act.

(x) Citation 3, Items 4, 5 and 6, all "Repeat" violations under Sections 5(a)(2) and 17(a) of the Act, are hereby sustained as cited in the Rindge Citation.

(xi) Citation 4, Item 1, an "Other-Than-Serious" violation under Sections 5(a)(2) and 17(c) of the Act, is hereby sustained as cited in the Rindge Citation.

(B) The Concord Citation (Inspection No. 63192; Docket No. 11-2871). The following shall apply to the citation items issued in connection with the Concord Citation:

(i) Citation 1, Items 1, 2, 3, 5 and 6, all "Serious" violations under Sections 5(a)(2) and 17(b) of the Act, are hereby sustained as cited in the Concord Citation.

(ii) Citation 1, Items 4a, 4b and 4c, which are alleged as components of one grouped "Serious" violation in the Concord Citation, are hereby reclassified and grouped as components of one "Other-Than-Serious" violation under Sections 5(a)(2) and 17(c) of the Act.

(iii) Citation 1, Item 7, which is alleged as a "Serious" violation in the Concord Citation, is hereby reclassified to an "Other-Than-Serious" violation under Sections 5(a)(2) and 17(c) of the Act.

(iv) Citation 2, Item 1, a "Wiliflul" violation under Sections 5(a)(2) and 17(a) of the Act, is hereby sustained as cited in the Concord Citation.

(v) (a) Citation 2, Items 2a and 2b, which are alleged as components of one grouped "Willful" violation in the Concord Citation, are hereby reclassified and grouped as components of one "Repeat" violation under Sections 5(a)(2) and 17(a) of the Act.

(b) The charging language in Citation 2, Item 2b is hereby amended and restated as follows:

29 CFR 1910.138(a): The employer did not select and require employee(s) to use appropriate hand protection when employees' hands were exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasion; punctures; chemical burns; thermal burns; and harmful temperature extremes.

d. Produce - Employees were exposed to severe lacerations from knives while breaking down produce, including, without limitation, corn and melons, where hand protection was not provided by the employer.

e. Deli - Employees were exposed to severe lacerations while cleaning the deli slicer, where hand protection was not provided by the employer.

f. Produce, Deli and Bakery - Employees were exposed to severe lacerations from knives while opening packages, where hand protection was not provided by the employer.

DeMoulas Super Markets, Inc dba Market Basket was previously citedfor a violation of this occupational safety and health standard which was contained in OSHA inspection number 309348563, citation number 1, item number 1, issued on 4/13/2006, with respect to a workplace located at 160 Littleton Road, Westford, MA.

(vi) Citation 3, Item 1, a "Repeat" violation under Sections 5(a)(2) and 17(a) of the Act, is hereby sustained as cited in the Concord Citation.

(vii) Citation 4, Item 1, an "Other-Than-Serious" violation under Sections 5(a)(2) and 17(c) of the Act, is hereby sustained as cited in the Concord Citation.

(C) Total Penalty. Respondent shall pay a total combined penalty of Four Hundred Thousand and 00/100 Dollars ($400,000.00) to Complainant in connection with the Rindge Citation and Concord Citation. Said penalty shall be paid in accordance with Section 6 below.

(D) Safety and Health Director. Respondent represents that as of the date of this Agreement, Respondent has hired Mr. Roger Foster to serve as the company's full time safety and health director. Respondent agrees that it shall hereinafter continue to retain Mr. Foster, or another qualified individual, to serve as Respondent's full time safety and health director (the "S&H Director"). The S&H Director shall have full authority and responsibility to develop, implement, monitor and enforce the requirements of Respondent's safety and health program. The S&H Director shall report directly to an upper level corporate manager. Complainant and Respondent acknowledge and agree that the S&H Director shall initially report to David McLean, Operations Manager.

(E) Written Safety and Health Program. On or before January 2, 2013, Respondent shall develop and implement a comprehensive written safety and health program applicable to all of its worksites.

(F) Safety and Health Inspections. Respondent shall conduct unannounced, comprehensive safety and health inspections at each of Respondent's workplaces (each, a "S&H Inspection"). Respondent shall perform S&H Inspections at each of its workplaces on a quarterly basis commencing on the date of this Agreement. The S&H Inspections may be performed by any qualified individual(s), whether an internal employee or an external consultant; provided, however, that on an annual basis, each of Respondent's workplaces shall be subject to at least one S&H Inspection performed by a qualified, outside and independent safety and health consultant. In connection with each S&H Inspection, Respondent (or its consultant, as applicable) shall recommend measures to remedy identified hazards and propose steps to reduce the number, type, severity and frequency of workplace illnesses and injuries at such workplace.

(G) Progressive Disciplinary Program. Commencing on the date of this Agreement, Respondent shall develop, implement and enforce a written disciplinary program at all of Respondent's workplaces. The disciplinary program shall provide for employees to receive progressive (and appropriate) discipline for violations of Respondent's safety and health rules, policies and procedures. The disciplinary program shall be applicable to all of Respondent's employees, including, without limitation, management personnel.

(H) Safety and Health Liaisons. Commencing on the date of this Agreement, Respondent shall designate a safety and health liaison for each of its supermarket departments (e.g. deli, produce, grocery, bakery, dairy, front end, etc.) (each, a "S&H Liaison"). There shall be one S&H Liaison for each supermarket department. Each S&H Liaison shall be a corporate level manager, and such individual shall be assigned to serve as a liaison in a department where he or she has supervisory authority. Each S&H Liaison shall serve as a liaison for his or her department across all of Respondent's workplaces. Each S&H Liaison shall work continually with the S&H Director to address safety and health hazards and issues that arise at his or her department. Each S&H Liaison shall also meet with the S&H Director at least quarterly.

(I) Performance Evaluations. Commencing on the date of this Agreement, Respondent shall include, as a component of its year-end review of all managers, an evaluation of the safety and health performance of each such manager. Each such manager shall be held accountable for his or her safety and health performance a material element of each such year end review.

(J) Job Applications. Respondent represents that it has revised its job application materials to include a written notification of Respondent's safety and health program. Commencing on the date of this Agreement, Respondent agrees to communicate said notification in an understandable language to all new and current employees. Respondent further agrees that it shall require that all new and current employees sign an acknowledgement stating that he or she has received and understands the contents of the notification.

(K) Safety and Health Training. Respondent shall provide meaningful safety and health training to all new employees who are hired on or after the date of this Agreement. Commencing on the date of this Agreement, Respondent shall also provide meaningful safety and health training to all new and existing employees on an annual basis. All such safety and health training shall include, without limitation, instruction on Respondent's safety and health policies and procedures, and instruction on Respondent's progressive disciplinary program. All such safety and health training shall be provided to each employee in an understandable language.

(L) Abatement of Alleged Violations. On or before January 2, 2013, Respondent shall abate the alleged violations cited in Rindge Citation, Citation 2, Items la, lb, 2a and 2b and in Concord Citation, Citation 2, Items 1, 2a and 2b at all of its workplaces. Except as provided in the preceding sentence, Respondent represents that as of the date of this Agreement it has abated all of the violations alleged in the Rindge Citation and the Concord Citation. Respondent shall provide abatement documentation to the Area Director that is sufficient to establish that Respondent has abated the alleged violations at its Rindge and Concord locations, and to the extent required by this Section 4(L), at all of Respondent's workplaces.

(M) The Rindge Citation and Concord Citation are hereby amended to include any abatement measures, including agreements as to actions to be taken by Respondent, which are described in this Agreement. The abatement measures described in this Agreement (including, without limitation, this Section 4) are hereby incorporated as terms and abatement conditions of this Agreement.

(5) In view of the aforesaid, Respondent hereby withdraws its Notices of Contest with respect to the Rindge Citation and the Concord Citation. Complainant and Respondent agree that the citations, proposed penalties, abatement measures and abatement dates provided in the Rindge Citation and the Concord Citation, as amended by this Agreement, shall be affirmed and become final Orders of the Review Commission.

(6) Respondent further certifies that the total amended penalty of Four Hundred Thousand and 00/100 Dollars ($400,000.00), as described in Section 4(C) above, has been paid to Complainant.

(7) Respondent certifies that there is no authorized employee representative at its workplace. It is hereby further certified by Respondent that this Agreement has been served on employees, by posting this agreement on / 3 0 , 2012, in a place where the Citation is required to be posted, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure.

(8) Complainant and Respondent each agree to bear its own fees and other expenses incurred by such party in connection with all stages of these proceedings.

(9) Respondent hereby agrees to comply with the Act in all respects in the future.

(10) None of the foregoing agreements, statements, stipulations, and actions taken by Respondent shall be deemed an admission by Respondent of the allegations contained within the Rindge Citation, the Concord Citation and the Complaint herein. The agreements, statements, stipulations, findings and actions taken herein are made for the purpose of settling this matter economically and amicably and they shall not be used for any purpose, except for proceedings and matters arising under the Occupational Safety and Health Act (29 USC 651, et g).

For Respondent:
James F. Laboe
Title. Attorney For Respondent
Date:

For Complainant:

M. Patricia Smith
Solicitor of Labor

Michael D. Felsen
Regional Solicitor

Scott Miller
Trial Attorney
U.S. Department of Labor
Attorneys for Complainant

Date:

Post Office Address:
U.S. Department of Labor
Office of the Solicitor
JFK Federal Building
Room E-375
Boston, MA 02203
TEL: (617)565-2500
FAX: (617)565-2142


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