___________________________________
ELIZABETH DOLE, Secretary of )
Labor, United States Department )
of Labor, )
)
Complainant, )
) OSHRC Docket
v. ) Nos. 89-2369
) 89-2559
APPLIED REFRACTORY, INC., )
AND ITS SUCCESSORS, )
)
Respondent. )
___________________________________)
Come now Complainant and Respondent and submit the following Settlement Agreement pursuant to Rule 2200.100 of the Commission's Rules of Procedure:
1. This Settlement Agreement specifies the terms of settlement as set out below for each contested item and disposes of all issues in the case.
2. Affected employees have not filed objections to the reasonableness of any abatement time.
3. Complainant moves to amend Items 1, 2, 3, 4, 5, 6, 7, and 8 of Citation No. 1, wherein abatement dates of July 17, 1989 are fixed, to fix abatement dates of November 1, 1990.
4. Upon granting of Complainant's motions Respondent moves to withdraw its notice of contest.
5. Respondent has tendered payment of the proposed penalties of $32,000.
6. Respondent states that the conditions described in Items 1, 2, 3, 4, 5, 6, 7, and 8 of Citation No. 1 will be corrected by November 1, 1990, and that a new form OSHA No. 200 will be prepared and executed to conform with Citation No. 1. Respondent's original form OSHA No. 200 for years 1987 and 1988, if any, which are the subject of this case will be maintained by respondent without any deletion, modification or alteration.
7. Without admitting any violation of the Occupational Safety and Health Act or any regulation or standard issued pursuant thereto, Respondent hereby withdraws its notice of contest to Citation No. 1, as amended herein, and agrees that the amended Citation and this Settlement Agreement will constitute a final order of the Commission. Respondent's consent to entry of a final order of the Commission pursuant to this Settlement Agreement shall not constitute an admission by Respondent of (i) any violation of the Act, (ii) the alleged facts underlying the Citation or amended Citation or any items therein, or (iii) any wrongdoing, all of which Respondent expressly denies. The parties agree that the Respondent enters into this Settlement Agreement in compromise and settlement of a disputed claim, for the sole purpose of avoiding further trouble, litigation, and expense; and the parties intend that neither this instrument nor any part of it may be construed, used, or admitted into evidence in any judicial, administrative, or arbitral proceeding, whether civil or criminal, as an admission of any kind by Respondent, except for future proceedings brought under the Occupational Safety and Health Act.
8. Respondent promises to permit complainant access to the workplace at issue herein subsequent to the dates fixed for abatement for the specific and limited purpose of determining if the conditions described in the citation(s) at issue herein have been corrected, and agrees to provide access to all records needed by Complainant to determine if the conditions have been corrected.
9. Respondent promises to continue its good-faith efforts to comply with the Occupational Safety and Health Act.
10. Respondent certifies that the affected employees in the above-styled case are not represented by an authorized employee representative.
11. Respondent certifies that a copy of this Settlement Agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.100 of the Commission's Rules of Procedure, by posting same on the 8th day of August, 1990.
12. Respondent agrees to comply fully with the Bureau of Labor Statistic's Recordkeeping Guidelines for Occupational Injuries and Illnesses, as amended, and the Code of Federal Regulations, 29 CFR, Part 1904, as amended.
13. Respondent agrees to submit its form OSHA No. 200 for the years 1990, 1991, 1992, 1993 and 1994 to the Area Director of the Occupational Safety and Health Administration having authority over the Corpus Christi, Texas area. Respondent shall submit copies of its proposed form OSHA No. 200 by January 15 following each of the respective years and provide any further documentation in support of the entries on the form OSHA No. 200 within five (5) working days of the Occupational Safety and Health Administration's request. Respondent represents that it has ceased to employ employees at this time.
14. Complainant through the United States Department of Labor agrees to provide a written opinion to Respondent regarding Respondent's OSHA recordkeeping practices only with regard to specific issues raised by Respondent. Respondent agrees to set forth the facts full and in writing in the form of a written request to Complainant through the United States Department of Labor for a written opinion.
Respondent agrees to abide fully by the written opinion rendered by the Complainant through the United States Department of Labor with regard to the specific issues raised by Respondent. Respondent further agrees to amend its 1989 form OSHA No. 200 to conform with any written opinion rendered by the Complainant through the United States Department of Labor with regard to the specific issues raised by Respondent, with the Recordkeeping Guidelines for Occupational Injuries and Illnesses, and 29 CFR, Part 1904. If Respondent amends its 1989 form OSHA No. 200, it will maintain its original form OSHA No. 200 which was due to be posted February 1, 1990 in a way which will clearly show the original entries as well as the amended entries. Complainant agrees to allow Respondent until November 1, 1990 to amend its 1989 form OSHA No. 200.
15. Each party hereby agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.
ROBERT P. DAVIS
Solicitor of Labor
JAMES E. WHITE
Regional Solicitor
APPLIED REFRACTORY, INC. JACK F. 0STRANDER
Counsel for Safety and Health
By: By:
__________________________ ___________________________
SAMUEL P. PARKER ANTHONY G. PARHAM
President Attorney
P. O. Box 9316 U. S. Department of Labor
Corpus Christi, Texas 78469 Office of the Solicitor
525 Griffin Street, Suite 501
Dallas, Texas 75202
Telephone 214/767-4902
Attorneys for Complainant
OSHA Inspection No. 102315066
RSOL Case No. 89-01300
psb/02330-0101
EACH AFFECTED EMPLOYEE WHO IS NOT REPRESENTED BY A LABOR ORGANIZATION HEREBY IS GIVEN NOTICE THAT ANY OBJECTIONS TO THE ENTRY OF AN ORDER APPROVING THIS SETTLEMENT AGREEMENT MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE THAT THIS SETTLEMENT AGREEMENT IS POSTED. SUCH OBJECTIONS MUST BE SET FORTH IN WRITING AND MAILED TO HONORABLE DEE C. BLYTHE, ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 1100 COMMERCE STREET, ROOM 7B11, DALLAS, TEXAS 75242, WITH COPIES TO COMPLAINANT AND RESPONDENT.