_______________________________________
ANN McLAUGHLIN, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
) No. 88-78
v. ) Inspection No. 000820837
) Beaver Falls, PA
BABCOCK AND WILCOX COMPANY )
and its successors, )
Respondent, )
_______________________________________)
UNITED STEELWORKERS OF AMERICA, )
)
Authorized Employee Representative)
_______________________________________)
This matter is before the undersigned upon the stipulation and settlement agreement entered into and duly executed by the parties to the above-captioned case. The parties advise that all matters in dispute have been amicably resolved and agree to entry of the order set forth below. After consideration, it is therefore ORDERED that:
1. The stipulation and settlement agreement is approved and the items thereof are incorporated into this order.
2. The citation items and proposed penalties are affirmed, modified, or vacated in accordance with the stipulation and settlement agreement.
SO ORDERED
___________________________
David G. Oringer
Judge, OSHRC
Entered: 11/2/88
_______________________________________
ANN McLAUGHLIN, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
) No. 88-78
v. ) Inspection No. 000820837
) Beaver Falls, PA
BABCOCK AND WILCOX COMPANY )
and its successors, )
Respondent, )
_______________________________________)
UNITED STEELWORKERS OF AMERICA, )
)
Authorized Employee Representative)
_______________________________________)
Complainant and respondent have reached a full and complete settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. The aforesaid parties hereby agree as follows:
(a) The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590: 29 U.S.C. 651, et seq.). (hereinafter the "Act").
(b) Respondent, Babcock and Wilcox Company, has its principal place of business in New Orleans, Louisiana, and a workplace in Beaver Falls, Pennsylvania. Respondent has been, at all times material to this proceeding, a corporation engaged in the business of manufacturing; and during the course of its business, its employees perform various tasks in the nature of manufacturing. Also during the course of its business, respondent uses material and equipment which it receives from places located outside Pennsylvania. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(3) and 3(5) of the Act, and has employees as defined by Section 3(6) of the Act, and is subject to the requirements of the Act.
(c) As a result of an inspection conducted on June 22 through July 1, 1987, at respondent's workplace at its Special Metals plant located in Beaver Falls, Pennsylvania, a willful (within the meaning of Section 17(a) of the Act) citation with five items, a serious citation with eight items, and an other than serious citation with three item were issued to respondent on December 22, 1987, pursuant to Sections 8 and 9 of the Act. The citations alleged violations of recordkeeping requirements and safety and health regulations set forth in 29 CFR 1904 and 1910, and in Section 5(a)(1) of the Act. Notifications of proposed penalties were also issued to respondent on December 22, 1987. The citations additionally ordered the abatement of the violations by February 19, 1988.
(d) Respondent filed a timely notice of contest to the citations and penalties with the Secretary of Labor. The contest was duly transmitted to the Commission.
(a) Complainant agrees to amend the citations in the following respects:
Serious Citation No. 1
The total penalties are reduced from $3,900 to $1,950.
Willful Citation No. 2
Item No. Instance No. Amendment
1a (a)(1) Reduced to Other than Serious
with a $500 penalty
1a (a)(2) Reduced to Other than Serious
with a $500 penalty
1a (a)(3) Reduced to Other than Serious
with a $500 penalty
1c (a)(1) Reduced to Other than Serious
with a $500 penalty
1d (a)(1) Reduced to Other than Serious
with a $500 penalty
1d (a)(2) Reduced to Other than Serious
with a $500 penalty
1d (a)(3) Vacated
1e (a)(1) Vacated
1e (a)(5) Vacated
1e (a)(12) Reduced to Other than Serious
with a $0 penalty
1e (a)(17) Reduced to Other than Serious
with a $500 penalty
1e (a)(26) Reduced to Other than Serious
with a $500 Penalty
1e (a)(37) Reduced to Other than Serious
with a $500 penalty
1f (a)(2) Reduced to Other than Serious
with a $500 penalty
2a Vacated
2b Reduced to Serious with a $500
penalty
3 Reduced to Serious with a $500
penalty
4a Reduced to Serious with a $400
penalty
4b Reduced to Serious with a $400
penalty
4c Reduced to Serious with a $400
penalty
4d Reduced to Serious with a $400
penalty
4e Reduced to Serious with a $400
penalty
5 Reduced to Other than Serious
with a $250 penalty
Other Than Serious Citation No. 3
No changes.
(b) Complainant further ends Willful Citation No. 2 in the following respects: The penalties for the following violations are reduced from $4,000 each to $1,700 each: Item 1b, Instance (a)(1), Item 1d, Instances (a)(4), (a)(5) and (a)(6); Item 1e, Instances (a)(2), (a)(3), (a)(4), (a)(6) through (a)(11), (a)(13) through (a)(16), (a)(18) through (a)(25), (a)(27) through (a)(36); Item 1f, Instance (a)(1).
(c) As a result of the amendments in paragraphs III (a) and (b),
supra, the penalties for Serious Citation No. 1, Willful Citation No. 2, and Other than Serious Citation No. 3 have been reduced as follows:
Citation No. Original Penalty Amended Penalty
Willful Citation No. 1 $212,000 $69,450
Serious Citation No. 2 3,900 1,950
Other than Serious 0 0
Citation No. 3
________ _______
TOTAL $215,900 $71,400
Respondent agrees to the following provisions:
(a) Respondent agrees to withdraw its notice of contest to the citations and penalties as amended in paragraphs III (a), (b), and (c) above and to pay to the U.S. Department of Labor the amount of $71,400 within twenty (20) days of the signing of this agreement.
(b) Respondent represents that the above-noted alleged violations will be corrected within thirty (30) days of the signing of this agreement. Respondent similarly agrees that it will review its recordkeeping practices at all its manufacturing facilities within the geographic locations covered by the Act as set forth in Section 4(a) of the Act and assure that its records, beginning with and including January 1, 1985, are in compliance with the Act, the regulations at 29 CFR Part 1904, the OSHA 200 Log, and the Revised BLS Guidelines for Occupational Injuries and Illnesses, effective April 1986.
(c) Respondent agrees to hereafter maintain its injury and illness records at all its manufacturing facilities nationwide in accord with the Act, the recordkeeping regulations at 29 CFR Part 1904, the OSHA 200 Log, the revised BLS Recordkeeping Guidelines for Occupational Injuries and Illnesses effective April 1986, and as they all may from time to time be revised.
(d) Respondent agrees to provide the Secretary with a report by November 1, 1988 indicating all programmatic changes instituted at each of its manufacturing facilities to implement paragraphs IV (b) and (c). The report shall include all written and other materials disseminated by the corporation or any agent thereof intended to provide instruction or guidance to its plant recordkeepers and safety personnel in their recordkeeping responsibilities under the Act. The Secretary agrees to provide the authorized employee representative with a copy of all reports received pursuant to this paragraph.
(e) Respondent agrees that the actions noted in paragraph IV (b) and (d) will be entirely accomplished as soon as practicable, but in any event all such actions shall be completed within one hundred and eighty (180) days of the date of execution of this agreement by the parties. In the event the parties do not execute the agreement on the same day, the day of the last signature controls initiation of the one hundred and eighty (180) day period. With respect to paragraph IV (c), respondent avers that it is presently fulfilling its OSHA recordkeeping responsibilities in accord with said provision.
Assuming compliance by respondent with all provisions of this Stipulation and Settlement Agreement, complainant agrees not to inspect or issue citations during the abatement period at any of respondent's manufacturing facilities concerning compliance with 29 CFR 1904.2(a).
Respondent does not admit any wrongdoing or violation or 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 government and respondent and to resolve differences regarding compliance with the Act.
Each party agrees to bear all of its own attorneys fees, costs, and expenses arising out of and incidental to the instant matter.
The Citations and Notifications of Proposed Penalty as amended by this Stipulation shall become a final order of the Commission.
WHEREFORE, the parties agree that, under the above-noted conditions, this matter docketed before the Commission as Docket No. 88-78 is hereby settled.
BABCOCK AND WILCOX COMPANY
_____________________________
George R. Salem
Solicitor of Labor
BY:___________________________
_____________________________
Richard I. Thomas, Esquire Marshall E. Harris
Regional Solicitor
_______________________________
____________________________
Joseph Mack, III, Esquire James H. Swain
Attorney
Attorneys for Respondent
____________________________
Dated: Mark V. Swirsky
Attorney
U.S. DEPARTMENT OF LABOR
Attorneys for Plaintiff
Dated: October 3, 1988
I hereby certify that I served a true and correct copy of the Stipulation and settlement Agreement and proposed Consent Order Approving Settlement on the following on this 17th day of October 1988:
Joseph Mack, III
Thorp, Reed. & Armstrong
One Riverfront Center
Pittsburgh, PA 15222
John R. Molovich
United Steelworkers of America
Safety and Health Department
Five Gateway Center
Pittsburgh, PA 15222
__________________________
James E. Swain
Attorney