UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY OF LABOR, Complainant, |
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OSHRC DOCKET NOS 14-0937 (Wilmington, DE)
14-0966 (Missoula, MT) |
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v. DOLLAR TREE STORES, INC Respondent. |
SETTLEMENT AGREEMENT
I.
Scope and Intent of Settlement Agreement
Complainant, Secretary of Labor, United States Department of Labor ("Complainant"), by and through his attorneys, and Respondent, Dollar Tree Stores, Inc. ("Respondent"), hereby stipulate and agree that:
(A) On April 21, 2014 (Docket No. 14-0937); June 14, 2014 (Docket No. 14-0966); June 20, 2014 (Docket No. 14-1227); October 14, 2014 (Docket No. 14-1590); December 5, 2014 (Docket No. 14-1930); March 2, 2015 (Docket No. 15-0465); April 20, 2015 (Docket No. 15-0840); May 15, 2015 (Docket No. 15-0969); May 15, 2015 (Docket No. 15-0975); July 6, 2015 (Docket No. 15-1235); September 29, 2015 (Docket No. 15-1686); and September 30, 2015 (Docket Nos. 15-1713 and 15-1712), Respondent was cited for alleged violations of the Occupational Safety and Health Act of 1970, 29 USC §§ 651, et seq., ("the Act"), and was issued Citations and Notifications of Proposed Penalties.
(B) Respondent, an employer within the meaning of Section 3(5) of the Act, duly filed with a representative of Complainant notices of intent to contest the citations and proposed penalties. These notices were duly transmitted to the Occupational Safety and Health Review Commission ("Commission") and it is agreed that jurisdiction of these proceeding is conferred upon said Commission by Section 10(c) of the Act.
(C) The Complainant has filed Complaints in each case herein stating with particularity the violations alleged, the penalties proposed and the issues in contest before the Commission.
(D) Complainant and Respondent ("the Parties") have agreed in this Settlement Agreement ("SA") to resolve in full and as described below all matters in the cases identified by the above-referenced docket numbers.
(E) The Parties have also agreed to the Engineering and Administrative Controls, Training, Third-Party Monitoring, Internal Corporate Monitoring, Safety and Health Program Review and (if necessary) Revisions (collectively, "Additional Abatement Measures"), and other terms described below, and that all such measures shall be applied on a corporate-wide basis to all of Respondent's employees and retail stores, except for Family Dollar retail stores, covered under the jurisdiction of Federal OSHA ("Covered Stores"). The currently existing Covered Stores are identified in attached Appendix A. The terms of this SA shall also apply to any Covered Stores acquired by Respondent during the term (defined below) of this SA that are in the jurisdiction of Federal OSHA. During the term of this SA, Respondent shall on a quarterly basis notify the Occupational Safety and Health Administration, Director of Enforcement Programs or his designee ("OSHA") of any such newly acquired Covered Stores or any Covered Stores that have been sold or shut down.
(F) The Parties to this SA recognize that some of Respondent's stores are located in states that have assumed authority for the enforcement of Occupational Safety and Health standards pursuant to Section 18 of the Act ("State Plan States"). OSHA will notify and encourage these State Plan States to honor or agree to the terms of this SA. For ease of reference, the Parties have attached hereto as Appendix B a current list of all of Respondent's stores in State Plan States.
II.
Resolution and Amendment of Citation Items
(A) OSHRC Docket No. 14-0937: Citation 2, Item 2 is to be reclassified as "Repeat" and Citation 2, Item 1 is to remain classified as "Willful." No other changes to classifications are to be made.
(B) OSHRC Docket No. 14-0966: Citation 2, Items 2 and 3 are to be reclassified as "Repeat" and Citation 2, Item 1 is to remain classified as "Willful." No other changes to classifications are to be made.
(C) OSHRC Docket No. 14-1227: Citation 2, Items 1 and 3 are to be reclassified as "Repeat" and Citation 2, Item 2 is to remain classified as "Willful." No other changes to classifications are to be made.
(D) OSHRC Docket No. 14-1590: Citation 1, Item 1 is to be reclassified as "Repeat" and Citation 1, Item 2 is to remain classified as "Willful." No other changes to classifications are to be made.
(E) OSHRC Docket No. 14-1930: Citation 2, Item 1 is to be reclassified as "Repeat" and no other changes to classifications are to be made.
(F) OSHRC Docket No. 15-0465: No changes to classifications are to be made.
(G) OSHRC Docket No. 15-0840: No changes to classifications are to be made.
(H) OSHRC Docket No. 15-0969: No changes to classifications are to be made.
(I) OSHRC Docket No. 15-0975: No changes to classifications are to be made.
(J) OSHRC Docket No. 15-1235: No changes to classifications are to be made.
(K) OSHRC Docket No. 15-1686: No changes to classifications are to be made.
(L) OSHRC Docket No. 15-1713: No changes to classifications are to be made.
(M) OSHRC Docket No. 15-1712: Citation 1, Item 1 is to be reclassified as "Repeat" and no other changes to classifications are to be made.
(N) The total amended, combined penalty for all dockets totals $825,000.
(O) Abatement for all items of the Citations, except as to those Additional Abatement Measures and dates specified below in Sections III. - VII., is within 10 days from the date this SA is fully executed.1
(P) Respondent certifies that the specific violative conditions alleged in the above-referenced cases and covered by this SA have been abated or will be abated by the abatement date described above. For each of those items in each of those cases, abatement verification and certification, as required by 29 CFR § 1903.19(c), shall be submitted to the issuing Area Director of the local Occupational Safety and Health Administration Area Office. Such abatement verification and certification shall be signed by the Director of Environment, Safety and Health and submitted no later than 30 days from the date this SA is fully executed. Respondent also agrees to submit at the same time abatement documentation required by 29 CFR § 1903.19(d). (Dates for compliance with the Additional Abatement Measures, and for the submission of other reports and documentation required by this SA, and to whom to send them, are set forth elsewhere in this SA.)
(Q) The Citations and Notifications of Penalties are deemed amended to include the full terms of this SA, including all abatement measures, the Additional Abatement Measures, all agreements as to actions to be taken by Respondent, and all implementation dates, which are described in this SA.
III.
Engineering and Administrative Controls
(A) As described in Section IV.(A), Respondent will have immediate safety training at the store level and safety training to upper field management in furtherance of the objectives of this SA.
(B) Engineering Controls
(1) No later than 90 days from the date this SA is fully executed, Respondent shall implement at all new stores opened after this SA has been fully executed, and shall implement within 180 days from the date this SA is fully executed at all stores existing as of the date this SA is fully executed the use of brightly-colored lines on all stockroom, storage room, and/or backroom floors to demarcate sufficient working space around electric equipment and sufficient space around exterior emergency exit doors to allow free and unobstructed access thereto and will include posting a sticker instructing employees not to block the door. In addition, within 90 days from the date this SA is fully executed, Respondent shall enact and enforce at all stores specific work rules requiring that routes to emergency exits and electric equipment be at least 28 inches wide at all points. Within 90 days from the date this SA is fully executed, Respondent shall enact and enforce specific work rules prohibiting stacking or storage of material/merchandise or equipment, or any other obstructions that would impede free and unobstructed access to emergency exits and electrical equipment, within these demarcated areas and routes.
(2) Within 90 days from the date this SA is fully executed, Respondent shall implement a procedure whereby store managers may request of district managers and/or district managers may request of regional directors storage containers and/or pods to store non-perishable items, where feasible and where appropriate, to address the Act's emergency exit access, material storage and access to electric equipment requirements. Respondent shall provide such requested items within 90 days of any request unless, in response to such request, it, at the corporate level, reviews the circumstances surrounding the request and affirmatively determines and documents that the storage containers and/or pods are not necessary for the store to be in full compliance with the Act's emergency exit access, material storage and access to electric equipment requirements, or store restrictions outside Respondent's control, such as local ordinances, landlord restrictions and/or lease restrictions, do not allow the use of a storage container.
(C) Administrative Controls
(1) Within 180 days from the date this SA is fully executed, Respondent shall review its delivery and unloading system to ensure that it allows for all material/merchandise received by stores during shipments to be promptly placed in designated storage or sales areas without creating an exit access, electric equipment access, or material/merchandise storage hazard or obstruction. Within 180 days of this review, Respondent shall implement changes needed so that all material/merchandise received by stores during shipments are promptly placed in designated storage or sales areas without creating an exit access, electric equipment access, or material/merchandise storage hazard or obstruction. Implementation shall include communicating the system to all of Respondent's employees, ensuring supervision of compliance with the system, and taking appropriate action to address non-conformances with the system.
(2) Within 180 days from the date this SA is fully executed, Respondent shall review its staffing system(s) to ensure the availability at each store of sufficient personnel to move material/merchandise deliveries immediately to designated storage or sales areas without creating an exit access, electric equipment access, or material/merchandise storage hazard or obstruction. Within 180 days of this review, Respondent shall implement changes needed for the availability of sufficient personnel to move material/merchandise deliveries promptly to designated storage or sales areas without creating an emergency exit access, electric equipment access, or material/merchandise storage hazard or obstruction. Implementation shall include communicating the system to all of Respondent's employees, ensuring supervision of compliance with the system, and taking appropriate action to address non-conformances with the system.
(3) Within 180 days from the date this SA is fully executed, Respondent shall review its storage system(s) to ensure it/they allow safe storage of material/merchandise. Within 180 days of this review, Respondent shall implement any changes needed for the safe storage of material/merchandise, which may include, where appropriate, limiting the height of material/merchandise to be stacked and utilizing shelving to minimize the stacking of materials on the floor. When shelving is used, it shall be adequately secured and anchored and/or otherwise in compliance with the Act. Implementation shall include communicating the system to all of Respondent's employees, ensuring supervision of compliance with the system, and taking appropriate action to address non-conformances with the system.
(4) Within 90 days from the date this SA is fully executed, Respondent shall implement a notification system that requires store managers to contact their regional director if their store has any exit access, electric equipment access, or material/merchandise storage issues that cannot be rectified at the store level and that district managers have not adequately addressed. Such contact must be made within a reasonable period of time after the access or storage issue is identified but not later than 7 calendar days. A store manager's reasonable efforts to comply with this SA shall be deemed protected activity under Section 11(c) of the Act.
IV.
Training
(A) Within 120 days from the date this SA is fully executed, Respondent will ensure that its Corporate Senior Executives, Regional Directors, District Managers, Store Managers and Assistant Store Managers, and non-managerial store employees (including temporary employees), are trained in the applicable Act's requirements, including the provisions relating to the: (1) requirements to maintain open and unobstructed emergency exit routes, access routes to electric equipment, and working space around electric equipment; (2) requirements to stack and store material/merchandise in a stable and secure manner; and (3) rights of employees to engage in activities protected by the Act without retaliation. This training will include safety meetings in furtherance of the objectives of the SA at the store level within 30 days of the execution of the SA and to field management at Respondent's annual field management meeting in August 2015.
(B) The mode of training and the content and material may differ for the job titles of the persons receiving it, as long as the training addresses the items noted in Paragraph IV.A, above (e.g., a District Manager training may differ from that of an Assistant Store Manager). Training may include, but is not limited to, classroom type, electronic (web based), the provision of written information, or informal safety meetings. Respondent will present the training, including any written materials produced or provided, in a manner and language that will enable all employees to understand the content.
(C) Respondent shall maintain records of the training provided, including the name of each employee trained, the date of the training, the content of the training and how the training was provided. Such records shall be made available to OSHA upon request and no later than 10 days after such request, or as reasonably practicable after such request depending upon the scope of the request.
(D) The above training shall be provided to all managerial and non-managerial employees at least annually. All new managers hired after the training provided pursuant to Paragraph IV.A, above, shall receive such training when assuming managerial duties at any store, and all new non-managerial employees hired after the training provided pursuant to Paragraph IV.A, above, shall receive such training by means that adequately convey the information to all employees before starting to work in any store.
(E) Respondent will retrain District Managers, Managers, and non-managerial employees in the above topic areas should information be acquired that the individuals are not fulfilling their responsibilities at their particular stores under the SA or Respondent's policies.
V.
Safety and Health Program
(A) Within 210 days from the date this SA is fully executed, Respondent's Director of Environmental Health and Safety will review its safety and health program ("Safety and Health Program"), focusing on the core elements set forth below and as included in OSHA's Safety and Health Program Management Guidelines [54 Fed. Reg. 3904 (Jan. 26, 1989)] ("the Guidelines").
(B) Within 210 days from the date this SA is fully executed, Respondent shall make revisions, as necessary and appropriate, to its Safety and Health Program to ensure it provides for the systematic identification, evaluation, and prevention or control of workplace health and safety hazards, and is consistent with the Guidelines. The Safety and Health Program, as revised, shall be implemented at all stores within 360 days from the date this SA is fully executed. Specifically, Respondent's Safety and Health Program shall:
(1) Demonstrate its commitment to workplace health and safety. Respondent's commitment may be demonstrated by:
a) Developing and implementing a robust Safety and Health Program;
b) Defining goals and expectations for the Safety and Health Program;
c) Assigning responsibility and accountability for implementing and maintaining the Safety and Health Program;
d) Communicating its goals and expectations to all employees and contractors;
e) Allocating appropriate resources (funds and time) to accomplish goals and manage the Safety and Health Program;
f) Recognizing employee contributions to workplace health and safety.
(2) Involve employees in the Safety and Health Program. Respondent may do this by:
a) Involving employees in developing the Safety and Health Program;
b) Assigning roles to employees in implementing the Safety and Health Program;
c) Including employees when evaluating and updating the Safety and Health Program;
d) Providing employees with information on how to report an injury, illness, health and safety hazard, or concern, including good catches/near misses;
e) Instructing employees to report injuries, illnesses, health and safety hazards, and concerns, including good catches/near misses;
f) Acknowledging and resolving reports of injuries, illnesses, health and safety hazards, or other concerns in a reasonable amount of time;
g) Involving employees in workplace inspections;
h) Involving employees in incident investigations;
i) Instructing all management employees that all employees have the right to report injuries, illnesses, health and safety hazards, or other concerns without fear of reprisal, pressures from superiors or coworkers, or loss of incentives tied to injury rates.
(3) Identify health and safety hazards. Respondent may do this by:
a) Reviewing written materials such as Injury logs, safety data sheets, medical reports, results of workplace inspections, and incident investigation reports to identify health and safety hazards;
b) Analyzing trends in injury and illness data that indicate the presence of common health and safety hazards;
c) Inspecting the workplace regularly to identify conditions that pose or could pose a safety or health concern, violations of OSHA standards, and/or recognized health and safety standards;
d) Establishing a hazards-mapping team, providing hazards-mapping training, and performing hazards-mapping exercises;
e) Instructing managers to ask employees about health and safety hazards and concerns in their work areas;
f) Investigating incidents to identify any health and safety hazards previously unrecognized or inadequately controlled;
g) Conducting all inspections and exposure assessments required by OSHA standards;
h) Identifying health and safety hazards associated with emergencies and non-routine operations;
i) Informing employees of health and safety hazards in their work areas.
(4) Control health and safety hazards. Respondent may do this by:
a) Developing a hazard control plan where appropriate and visiting it to reflect current work conditions as necessary;
b) When feasible, controlling health and safety hazards according to the "hierarchy of controls:" i) engineering controls; ii) work practices; iii) administrative controls; and iv) PPE;
c) Implementing all controls required by applicable OSHA standards;
d) Installing controls as soon as possible after a health or safety hazard is identified and management is notified;
e) Informing employees of the controls that have been implemented for the health and safety hazards in their work areas;
f) Assigning responsibility for ensuring that controls are implemented and verifying that they are effective;
g) Tracking the implementation of controls to completion.
(5) Provide education and training (in addition to the training required in Section IV of this SA) for all employees (including managers) related to the Safety and Health Program. Respondent may do this by:
a) Training employees on the elements of the Safety and Health Program and how to participate in it;
b) Training employees on their roles and responsibilities under the Safety and Health Program;
c) Training employees on the procedures for reporting injuries, incidents, health and safety hazards, and concerns;
d) Explaining to employees that they have a right to participate in the Safety and Health Program and to report injuries, incidents, health and safety hazards, and concerns without fear of retaliation or discrimination;
e) Providing an opportunity for employees to ask questions, receive answers and provide feedback during and after training;
f) Providing supplemental training when an employee is assigned a new task or given a new assignment;
g) Providing supplemental training when a change in the workplace could introduce or exacerbate health and safety hazards;
h) Providing training in a language and at a literacy level that all employees can understand;
i) Establishing a system to evaluate the effectiveness of the training and periodically re-evaluating the effectiveness of the training;
j) Providing additional training each year, at least during the term of the SA, addressing the provision of open and unobstructed exit routes, routes to electric equipment, and working space around electric equipment; and stable and secure stacking and storage of material/merchandise to assure that employees understand the health and safety hazards and the methods required to control these health and safety hazards.
(6) Evaluate the Safety and Health Program. Respondent may do this by:
a) Reviewing annually the Safety and Health Program to determine whether all Safety and Health Program elements are fully implemented;
b) Involving employees in the Safety and Health Program reviews;
c) Establishing and using appropriate metrics and data to evaluate progress;
d) Evaluating the progress toward achieving established goals;
e) Modifying the Safety and Health Program as needed to correct deficiencies.
(C) Within 60 days from the day this SA is fully executed, Respondent shall distribute to all store employees on, at least, a quarterly basis, a corporate newsletter covering health and safety issues. As long as an easily accessible bulletin board is available at a store and employees are made aware of its existence, Respondent may satisfy its requirement to distribute the newsletter to employees by posting it on the bulletin board.
VI.
Third-Party Monitoring
(A) OSHA and Respondent have agreed upon 2 potential Monitors and within 30 days from the date the SA is fully executed, Respondent shall retain, at Respondent's expense, one of the 2 potential Monitors for a period of 24 months to, on a regular basis as set forth below, perform identified tasks and memorialize its findings on the form attached to this SA as Appendix C (the "Audit Form.") Respondent shall certify retention of the Monitor to OSHA within ten business days of the execution of its retention agreement with the Monitor. If, at any point, OSHA or Respondent determines that the selected Monitor is not effectively executing its responsibilities in effectively auditing compliance with the terms of this SA, OSHA or Respondent will notify the other Party and the Parties shall engage in reasonable efforts to address the Monitor's lack of effectiveness. If the Parties cannot resolve the situation in a reasonable time, either Party may notify the other Party that a new Monitor must complete the prescribed retention period. Within 60 days of such notice, Respondent shall terminate the current Monitor. If one of the two accepted Monitors has not been engaged by Respondent under the SA, then Respondent may retain that Monitor or seek approval from OSHA of another Monitor, which approval may not be unreasonably withheld. Retention of a new Monitor will not extend the 24-month Monitor period, except to the extent that a new Monitor is not retained within 60 days.
(B) Within 90 days of appointment, the Monitor will commence inspecting what will be, over the course of the 24 months of its appointment, a total of 50 of Respondent's stores covered by the Act, to be selected by the Monitor, with input from Respondent and OSHA if OSHA so chooses to provide.. The Monitor will identify to Respondent and OSHA quarterly the stores that the Monitor will inspect at least 10 days before the proposed commencement date of that quarter's inspections. The Monitor will identify for inspection each quarter approximately 6 stores that will ultimately be inspected in that quarter. The monitoring visits shall be scheduled so that the Monitor can determine whether Respondent: (1) has adhered to the agreed-upon time frames in the SA for the initial implementation of its engineering controls, administrative controls, training program and Safety and Health Program, and (2) continues to comply with the terms of the SA. The Monitor will review safety and other relevant practices specific to the terms of this SA through the auditing of stores using the Audit Form, which particularly includes those areas related to the Act's requirements to maintain open and unobstructed exit routes, routes to electric equipment, and working space around electric equipment, as well as the Act's requirements to stack and store material/merchandise in a stable and secure manner. The Monitor will identify and reflect in the Comments section of the Audit Form specific actions that Respondent must take at the store that has been the subject of the audit to comply with the SA's terms, and to assure Respondent's ongoing and future compliance with the terms of the SA.
(C) The Monitor will inspect, without advance notice to the specific store under inspection, Respondent's facilities with the Audit Form in the way that the Monitor deems necessary to assess Respondent's compliance with the terms of the SA, and to assure Respondent's ongoing and future compliance with the terms of the SA. Respondent shall produce all requested records to the Monitor without unreasonable delay, and shall allow the Monitor reasonable and sufficient time to review and copy any such records.
(D) Respondent shall permit, and the Monitor shall conduct, confidential interviews of non-managerial employees in the manner the Monitor deems necessary to assess Respondent's compliance with the Act and the terms of the SA, and to assure Respondent's ongoing and future compliance. The Monitor shall not disclose the names, statements or any notes of the confidential interviews of employees to Respondent, its officers, agents, servants, employees, or any persons acting or claiming to act on their behalf or interest.
(E) Prior to leaving each monitored store, the Monitor shall meet with and convey to store management its findings and recommendations so that store management will have the opportunity immediately to address any problems. Following each inspection, and within 7 days therefrom, the Monitor will ensure that an Audit Form is fully completed, and includes, if relevant, the specific actions and recommendations it determines are necessary for that store to comply with the terms of the SA. The Monitor shall include in the Comment Section of the Audit Form Respondent's progress at that store in meeting the deadlines and requirements set out in the terms of the SA, including implementation of the Safety and Health program at the store. The Monitor will provide all completed Audit Forms to Respondent within 7 days of completion, subject to the non-disclosure requirements set forth in paragraph D of this Section. Respondent shall retain these Audit Forms for the term of the SA plus 12 months, and provide them to OSHA upon request and within 10 days of such request.
(F) Respondent shall, in response to each Audit Form received from the Monitor, and no later than 21 days after receipt (unless as noted in the final sentence of this paragraph), ensure that any and all hazards and deficiencies identified by the Monitor have been corrected, and shall memorialize its actions taken to do so. Such documentation shall be prepared by Respondent no later than 7 days after ensuring that the hazards and deficiencies have been corrected. In addition, such documentation shall be made available to OSHA upon request and no later than 10 days after such a request. If Respondent cannot or will not correct any hazard or deficiency identified by the Monitor within 21 days of receipt of an Audit Form from the Monitor, it shall provide an explanation as to why and submit that to OSHA, along with the relevant Audit Form, within 30 days of its receipt of the Audit Form from the Monitor.
VII.
Internal Corporate Monitoring
(A) Within 30 days from the date this SA is fully executed, Respondent shall also designate and provide to OSHA the name and contact information for a corporate officer or senior manager (the "Designated Official") who will serve as OSHA's and the Monitor's point of contact throughout the term of this SA plus 12 months for addressing questions or issues related to Respondent's compliance with both the Act and the terms of the SA. The Designated Official must have authority to issue directions that, when followed, will bring Respondent into compliance with both the Act and the terms of the SA. Respondent's Designated Official will be Respondent's point of contact for the Monitor's assessment and Respondent's compliance with the Act and the terms of the SA. Respondent shall notify OSHA in advance of any change in the Designated Official.
(B) Within 30 days from the date this SA is fully executed, Respondent shall hire and retain for at least the term of this SA plus 12 months, a Director of Environment, Safety, and Health ("Director of EH&S") whose duties will include developing, implementing, managing and overseeing environmental and safety policies, programs and processes at all Respondent's stores for OSHA compliance with, among other things, emergency exit access, electric equipment access, and material/merchandise storage requirements under the Act.
(C) Within 90 days from the date this SA is fully executed, Respondent's internal, independent audit department,2 in conjunction with the Director of EH&S (collectively, the "Internal Monitor" or "IM"), shall commence or lead inspecting, using the Audit Form, what will be, over the term of this SA plus an additional 12 months, a cross-section of 180 of Respondent's stores covered by the SA, to be selected by Respondent, with input from OSHA if it so chooses to provide. Stores shall be chosen both randomly and, where Respondent finds it appropriate, based on perceived problems identified in particular stores. Respondent agrees to monitor stores in geographically diverse regions of the country. However, Respondent may monitor multiple stores within one geographic region over a set period of days in order to maximize efficiency and travel constraints. The IM shall inspect 15 stores each quarter so that it will have inspected the full 180 prescribed by this SA. The IM may as appropriate interview employees to assess Respondent's compliance with the SA, and Respondent shall require the IM to advise employees that they are protected from any retaliation as a result of the employee's participation in the interview with the IM.
(D) Prior to leaving each monitored store, the IM shall meet with and convey to store management its findings and recommendation so that store management will have the opportunity to timely address any problems. Following each inspection, and within 7 days therefrom, the IM will ensure that an Audit Form is fully completed and includes, if relevant, the specific actions it recommends are necessary for Respondent to comply with the Act and the terms of the SA at that store, and to assure Respondent's ongoing and future compliance with the terms of the SA at that store. The IM shall include in the Comment section of the Audit Form, Respondent's progress at that store in meeting the deadlines and requirements set out in the terms of the SA, including implementation of the Safety and Health program at the store. Respondent shall retain these Audit Forms for the term of the SA plus 12 months and provide them to OSHA upon request and within 10 days of such request.
(E) Before the expiration of 21 days following its completion of the Audit Form, the IM shall provide a copy of the Audit Form or a SUMMARY of its contents to the inspected store and ensure that any and all hazards and deficiencies identified in the Audit Form have been corrected. The IM shall memorialize its actions taken within 7 days of doing so. Such documentation shall be made available to OSHA upon request and no later than 10 days after such a request. If the IM determines that an inspected store cannot or will not within 21 days of receipt of an Audit Form or SUMMARY correct all identified hazards or deficiencies, it shall provide an explanation as to why and submit that to Respondent's upper management and OSHA, along with the relevant Audit Form, within 30 days of its completion of the Audit Form.
(F) On at least a quarterly basis during the term of this SA plus 12 months, Respondent's upper management shall meet with the Director of EH&S to review all of the IM's audit results, in order to ensure that any issues identified during the inspection are being corrected promptly.
(G) Within 60 days from the date this SA is fully executed, Respondent shall require its store managers to conduct inspections of its stores so as to ensure ongoing compliance with the terms of this SA.
(H) Within 90 days from the date this SA is fully executed, Respondent shall disseminate to all employees, a toll-free reporting telephone number. Respondent shall encourage employees to use this number to anonymously report to Respondent circumstances where they believe their, or their fellow employees', rights or protection under the Act have been violated, or where they have concerns or suggestions about safety and health conditions at their store, including those involving emergency exit routes, access to electric equipment and material/merchandise storage issues, and the manner in which they are being addressed on a store level. Respondent shall advise employees that they are protected from any retaliation as a result of the use of this toll-free number and in practice shall not retaliate against an employee using the reporting number. Further, Respondent will investigate and, as appropriate, promptly address any Act-related issues raised via the toll-free number. Nothing in this SA shall prohibit Respondent's employees from contacting OSHA with any complaints if such employees choose to do so.
VIII.
Withdrawal of Notice of Contest and Entry of Final Order
In view of the aforesaid, Respondent hereby withdraws its Notices of Contest and the Parties agree that this SA, as well as the Citations and proposed penalties and the abatement measures and dates, as amended by this SA, and including the Additional Abatement Measures, shall be affirmed and become a Final Order of the Commission.
IX.
Effective Date and Term of SA
(A) This SA shall become effective on the date it is fully executed (the "Effective Date").
(B) Except as provided in VII and XII, the terms of this SA shall terminate on the date that is 2 years after the date on which the Monitor referenced in Section VI. above officially starts (the "Termination Date"), unless extended in accordance with this section. This SA's Termination Date shall not affect Respondent's responsibilities to comply with the requirements of Sections VI.(E) and (F) above, and Section X.(B) below.
(C) Before the Termination Date of this SA, either Party may provide written notice to the other that it wishes to extend the SA for an additional term. Such notice shall be provided no later than the date that is 45 days prior to the Termination Date. Upon providing such notice, the term of the SA shall automatically extend until the date that is 45 days after the Termination Date, to allow the Parties an opportunity to discuss continuation of the SA for an additional term. The Parties agree to engage in such discussions in good faith in an effort to reach a mutually acceptable agreement to continue the term of this SA.
X.
OSHA Monitoring, Reporting and Meeting
(A) Until this SA's Termination Date, Respondent shall permit OSHA to enter into and conduct monitoring inspections at the stores covered by this SA to verify compliance with the SA. Respondent shall not require warrants for entry by OSHA, and shall not require subpoenas for access to documents, witnesses, or other information related to compliance with this SA. The scope of the OSHA monitoring inspections shall be limited to the verification of compliance with this SA, unless other non-compliant conditions are observed in the plain view of an OSHA compliance officer during the verification visit.
(B) Within 210 days of the Effective Date of this SA (the specific date chosen within that period of time to be known as "the Reporting Date"), and thereafter on the first and second anniversaries of the Reporting Date, Respondent shall submit a written compliance report to OSHAdetailing Respondent's status of compliance with the terms of Sections III. - VII. of this SA (each, a "Compliance Report"). Each Compliance Report shall include 1) a written certification by Respondent that it is then in compliance with all of the terms of this SA or, 2) if Respondent is not then in full compliance, a written statement by Respondent describing all areas of non-compliance, the remedial actions to be taken by Respondent at each affected Covered Store, and the date by which Respondent certifies it shall achieve full compliance at each such store. Nothing in this paragraph shall be construed as a substitute or replacement for other reporting requirements set forth in this SA. Nor shall the reporting requirements in this paragraph be satisfied by only submitting reports required by any other provisions of this SA. Finally, nothing in this paragraph shall be construed as a waiver or limitation of OSHA's ability to monitor and/or enforce Respondent's compliance with the terms of this SA, as noted above in Paragraph (A) of this section.
(C) The Parties shall hold a meeting approximately one year after the Effective Date of the SA to discuss the status of abatement and Respondent's progress in implementation of the Additional Abatement Measures outlined in Sections III. through VII. of this SA, as well as any other terms of the SA that either Party wishes to discuss. This meeting will provide the Parties an opportunity to identify any concerns, issues and/or challenges and, if Respondent deems it necessary, to discuss the need for additional time to comply with the terms of this SA. Respondent shall initiate contact with OSHA no later than 10 months after the Effective Date of the SA to set up this meeting, which the Parties agree shall be held at the U.S. Department of Labor, Occupational Safety and Health Administration, 200 Constitution Avenue N.W., Washington, D.C. 20001, at a mutually agreed upon date and time as close as possible to the one year anniversary of the Effective Date of the SA. Points of contact for this meeting and discussions between the parties are Respondent's Designated Official (as referenced in Section VII.(A) above), and OSHA (as referenced in Section I.(E) above). However, nothing in this paragraph precludes meeting(s) at the local level.
XI.
Penalties
Respondent certifies that the total penalty of $825,000, as described in Section II. Paragraph (N) above, is being paid by Respondent within 30 days of the execution of this signed SA to Complainant.
XII.
Dispute Resolution
If, during the term of this SA plus 12 months, OSHA determines that Respondent is not or may not be in compliance with any portion of this SA, including from the review of any Audit Forms received from Respondent, review of any documents from the Monitor or IM, receipt of a complaint, or by any other means, it shall promptly contact Respondent in writing to the person designated by Respondent in section VII (A) and allow Respondent 15 working days from receipt of notification to provide a written response. Within 10 working days of receiving the written response, OSHA shall engage in good faith discussions and provide Respondent a reasonable amount of time to abate. If, by the expiration of that time period, Respondent reports and provides documentary evidence to support that it has fully abated the hazard, no inspection shall occur and no citation shall issue. If the parties are unable to resolve the issue, OSHA will determine the appropriate course of action. OSHA retains its right to use the enforcement methods provided by the Act and Respondent retains all rights afforded it by the Act.
XIII.
Failure to Abate and Section 11(b) of the Act
(A) The Parties understand and agree that their inability to reach an agreement regarding the alleged non-compliance with this SA, or, Respondent's failure to perform in good faith any of the terms or abatement measures and Additional Abatement Measures required in the SA, including the payment of penalties as set forth herein, may be cited by Complainant as a failure to abate under Section 10(b) of the Act, 29 U.S.C. §659(b), and may be subject to an enforcement action brought by Complainant pursuant to Section 11(b) of the Act, 29 U.S.C. §660(b), to the same extent as if these terms, abatement measures and Additional Abatement Measures had been set forth from the outset in the Citations and Notification of Penalties issued in these matters.
XIV.
Service and Posting of SA and Settlement Summary
(A) Respondent certifies that there are no authorized employee representatives at its Covered Stores. Respondent further certifies that it served this SA on the employees at 3603 Silverside Road, Wilmington, Del., 19810 on (dates) October 24, 2015; at 2704 Brooks Street #A, Missoula, Mont., 59801 on October 23, 2015; at 950 American Legion Highway, Roslindale, Mass. 02131 on October 23, 2015; at 8028 Denton Highway Watauga, Tex., 76148 on October 23, 2015; at 7 Penn Center, New Castle, Del., 19720 on October 24, 2015; at 1400 Oaklawn Avenue, Cranston, R.I., 02131 on October 23, 2015; at 1428 West Gray, Houston, Texas, 77019 on October 23, 2015; at 3323 Chicago Road, South Chicago Heights, Ill., 60411 on October 23, 2015; at 9950 South Ridgeland Avenue, Chicago Ridge, Ill., 60415 on October 24, 2015; at 630 Wellwood Avenue, Lindenhurst, N.Y. 11757 on October 26, 2015; at 907 Boston Post Road, Old Saybrook, Conn., 06475 on October 23, 2015; at 3395 Great Neck Road, Amityville, N.Y., 11701 on October 24, 2015; and at 896 McLean Avenue, Yonkers, N.Y., 10704 on October 23, 2015 by posting it in a place where the Citations are required to be posted, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure, for the duration of the SA.
(B) Respondent further agrees that, no later than 10 days after this SA is fully executed, it shall post at all of its Covered Stores and for the duration of this SA, a notice of this SA with a brief SUMMARY of its contents, including the actions it has agreed to take with respect to all of its Covered Stores. Said SA SUMMARY is attached as Appendix D.
XV.
Modification of Abatement Schedule
The Parties stipulate and agree that Respondent reserves its right to petition OSHA for modification of the abatement dates, pursuant to 29 C.F.R. §1903.14a, if Respondent is unable to meet any abatement deadlines set forth above because of factors beyond its reasonable control and despite its good faith effort to comply with the required abatement measures. OSHA agrees that any such Petition for Modification of Abatement Date ("PMA") submitted by Respondent to OSHA, and any extension of time approved by OSHA in response to such a PMA, need not be made specific to a single worksite, but may be made to apply to any or all of the Covered Stores. The Parties further stipulate and agree that any extension of time approved by OSHA in response to a PMA submitted by Respondent during the term of this SA shall be automatically incorporated into this SA and binding upon the Parties.
XVI.
Notice and Communications
Any notice provided by a Party pursuant to this SA shall be in writing and delivered by certified mail to the addresses below:
(A) If to Complainant:
Director Enforcement Programs
U.S. Department of Labor
Occupational Safety and Health Administration
200 Constitution Avenue N.W., Room N3119
Washington D.C. 20001
(B) If to Respondent:
Chief Legal Officer
Dollar Tree Stores, Inc.
500 Volvo Parkway
Chesapeake, VA 23322
and
Director of EH&S
Dollar Tree Stores, Inc.
500 Volvo Parkway
Chesapeake, VA 23322
Any such notice shall be deemed provided on the date that the notice is deposited in the United States mail. Each party shall immediately notify the other party of any change in the name or address to whom any notice is to be sent pursuant to this paragraph.
XVII.
Non-Admission
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
Citations, Notifications of Penalties, Complaints, and SA herein. The agreements, statements, stipulations, findings and actions taken herein are made for the sole purpose of settling these matters economically and amicably and they shall not be used for any purpose, except for proceedings and matters brought by the Occupational Safety and Health Administration.
XVIII.
Costs
Each Party hereby agrees to bear its own fees and other expenses incurred by such Party in connection with any stage of these proceedings.
XIX.
No Alteration of Employee Rights
Nothing in this SA alters in any manner the rights afforded employees under the Act.
Respectfully submitted,
| M. Patricia Smith Solicitor of Labor |
____________________________ Bradford T. Hammock Nickole C. Winnett |
| Orlando Pannocchia Occupational Safety and Health Division Counsel for Regional Litigation & Legal Advice |
Jackson Lewis P.C. 10701 Parkridge Blvd., Suite 300 Reston, VA 20191 ph. (703) 483-8300 fax (703) 483-8301 |
| Peter Vassalo Occupational Safety and Health Division Senior Attorney |
HammockB@jacksonlewis.com Nickole.Winnett@jacksonlewis.com |
Oscar L. Hampton III
Regional Solicitor
Michael Doyle
Counsel for Occupational Safety and Health
Michael Doyle
Counsel for Occupational Safety and Health
Suite 630 East, The Curtis Center
170 S. Independence Mall West
Philadelphia, PA 19106-3306
ph. 215-861-5121
fax 215-861-5162
James E. Culp
Regional Solicitor
John Rainwater
Associate Regional Solicitor
Madeleine T. Le
Counsel for Occupational Safety and Health
Timothy S. Williams
Counsel for Safety and Health
Brian Hurt
Senior Trial Attorney
Matthew B. Finnigan
Senior Trial Attorney
525 South Griffin Street, Suite 501
Dallas, TX 75202-5020
ph. 972-850-3100
fax 972-850-3101
hurt.brian@dol.gov
1244 Speer Boulevard, Suite 515
Denver, CO 80204
ph. 303-844-7014
fax 303-844-1753
finnigan.matthew@dol.gov
Michael D. Felsen
Regional Solicitor
Christine T. Eskilson
Deputy Regional Solicitor/Counsel for OSHA
Carol Swetow
Senior Trial Attorney
Carol Swetow
Senior Trial Attorney
John F. Kennedy - Federal Office Building
Government Center, Room E-375
Boston, MA 02203
ph. (617) 565-2500
fax (617) 565-2142
swetow.carol@dol.gov
U. S. Department of Labor
Attorneys for the Secretary of Labor
1. "Fully executed" shall mean the date of the last signature on the SA.
2. Respondent states that its internal audit department provides independent and objective assurance that Respondent's policies, standards, procedures, and actions are in accord with applicable laws and regulations and that all internal auditing activities are conducted in compliance with the International Standards for Professional Practice of Internal Auditing. It states further that to provide for the independence of the internal audit department, its personnel report to the Vice President of Internal Audit, who reports to the Chief Executive Officer.