UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Respondent, Beverly Enterprises, Inc., ("Beverly Enterprises"), is a corporation with its corporate headquarters in Ft. Smith, Arkansas. Respondent's subsidiaries own and operate five skilled nursing facilities in Pennsylvania known as Carpenter Care Center, in Tunkhannock, Pennsylvania; Blue Ridge Haven Convalescent Center West (d/b/a West Shore Health and Rehabilitation Center) in Camp Hill, Pennsylvania; Beverly Manor of Monroeville in Monroeville, Pennsylvania; Meyersdale Manor in Meyersdale, Pennsylvania; and Richland Manor in Johnstown, Pennsylvania (hereinafter referred to as Carpenter Care, Blue Ridge Haven, Monroeville, Meyersdale, and Richland, respectively. For purposes of this Stipulation and Agreement, these five facilities are referred to as the Cited Facilities). Respondents subsidiaries own and operate other nursing homes located throughout the United States.
At all times material to this proceeding Respondent has been engaged in the business of providing long-term residential care in the Cited Facilities. Respondent is an employer engaged in a business affecting commerce as defined by Sections 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.
As a result of OSHA inspections conducted at the Cited Facilities, five citations and notifications of proposed penalties were issued to Respondent alleging violations of Section 5(a)(1) of the Act. (Carpenter Care citation issued January 31, 1992; Blue Ridge West citation issued February 1, 1993; Monroeville citation issued March 20, 1992; Meyersdale citation issued December 5, 1991; Richland citation issued November 12, 1991.)
Respondent timely contested the citations and notifications of proposed penalties.
The SEIU, as authorized employee representative, was granted party status.
After a hearing on the citations was held from March 21, 1994 through June 30, 1994, the Administrative Law Judge issued a decision vacating the citations.
On October 27, 2000, the Review Commission issued a Decision and Order reversing the decision of the Administrative Law Judge and remanded the matter for consideration of the remaining issue, feasibility of abatement.
This Stipulation and Settlement Agreement is being entered into in order to avoid the time and expense involved in litigation. Accordingly, Respondent agrees to withdraw its notices of contest to the Citations and the Secretary agrees that a penalty of $1.00 for each of the five 5(a) Citations will be assessed. Respondent's withdrawal of its Notices of Contest is made solely to facilitate the settlement of this matter and it does not qualify in any manner Section XVII below.
The parties agree to the provisions of the "Policy and Guide," attached as Appendix A and hereinafter referred to as the "Policy and Guide." The Lift, Transfer and Repositioning Policy" ("Policy") is set forth in Chapter Two of the Policy and Guide. The Lift Program Guide ("Guide"), to be made specific for each facility described herein, is set forth in Chapters Three through Eight of the Policy and Guide. The Policy and Guide is incorporated in its entirety into this Stipulation and Settlement Agreement. This Stipulation and Settlement Agreement shall become a Final Order of the Commission enforceable under Section 11(b) of the Act. Included with this Agreement is a draft Final Consent Order approving this Settlement. The form and content of the Final Consent Order and the Stipulation and Settlement Agreement have been negotiated by the parties who hereby consent to the entry of the Final Consent Order as the Final Order of the Review Commission so that the litigation of these matters may be concluded.
In settlement of the litigation, Respondent agrees, within ninety days of the Commission's Final Order in this matter, to adopt the Policy and Guide at each of the Cited Facilities, and to identify key personnel at each facility responsible for implementing the Policy and Guide, including the development of requisite training and the equipment acquisition schedules. Training and acquisition of equipment will be accomplished in accordance with the schedule described herein. Full implementation of the Policy and Guide will be accomplished upon completion of the training and acquisition of equipment. As part of this Settlement Agreement and as discussed in the Policy and Guide, Beverly Enterprises will designate a manager at each Cited Facility who has responsibility for implementation and compliance with the Policy and Guide. As part of this Settlement Agreement, Beverly Enterprises will purchase within 12 months from the date of the Commission's Final Order in this matter, a Lift Walker, friction reducing devices, and two-handled transfer belts for each Cited Facility. Beverly Enterprises agrees to maintain in each Cited Facility an adequate number of mechanical lift equipment and devices to Billy and effectively implement the Policy and Guide, based on the size and dependency classification of each facility's resident population. Within ninety days of the date of the Commission's Final Order in this Matter, Beverly Enterprises will establish and provide to OSHA a schedule for the acquisition of the Lift Walker, friction reducing devices, and two-handled transfer belts.
Within thirty days from the date of the Commission's Final Order in this matter, Beverly Enterprises, following consultation with the union/management safety committee at each Cited Facility, shall establish a training schedule for all employees whose duties include or involve lift, transfer or repositioning assistance, including supervisory and managerial staff, and the responsible manager designated in the Guide at each Cited Facility. This training shall be consistent with the training described in the Guide and shall include explanation of the Policy, preferred methods, communication tools, storage location, and use of all assistive equipment, pertinent instructional materials from equipment manufacturers, including videos demonstrating proper use of mechanical lift equipment, lift assist devices, and friction reducing devices, hands on practice operating the assistive equipment, and the opportunity to ask questions. Initial training for all nursing assistants at the Cited Facilities and training sufficient to enable the responsible manager designated in the Guide at each Cited Facility to implement and comply with the Policy and Guide shall be completed within six months from the date of the Commission's Final Order in this matter. All newly-hired and transferred employees whose duties include lift, transfer or repositioning assistance will receive the training required under this Section at the time of orientation or before assuming patient handling responsibilities. Training on newly-acquired equipment and devices will be provided reasonably promptly upon acquisition.
During the term of this Settlement Agreement, Respondent shall provide for each Cited Facility the following information, semiannually beginning with the effective date of this Settlement Agreement, to the respective OSHA Area Office having jurisdiction:
1. A copy of the site-specific Guide. (The parties acknowledge that a copy of the "Guide" need only be submitted once, unless otherwise stated.);
2. Any change in the identity of the designated facility manager responsible for ensuring compliance with the Policy and Guide;
3. Program implementation Checklist (showing completion of specified activities since the date of the last report);
4. Identification of any assistive equipment acquired since the effective date of this Agreement, or the date of the last report;
5. Skills Check Off Sheets for all associates receiving initial training in the Lift Program, including all nurses, nursing assistants and other associates whose duties involve lift, transfer and repositioning assistance for residents; Skills Check Off Sheets for all newly hired and transferred nurses, nursing assistants and other associates whose duties involve lift, transfer and repositioning assistance for residents; Attendance Sheets for annual refresher training; and documentation of any necessary remedial training;
6. Supervisor's Accident Investigation Reports related to resident lifting and transferring activities;
7. Resident Census summary information to include (a) number of residents by classification per MDS, Section G. (b) number of residents lifted mechanically, and (c) number of residents lifted manually.
The information referenced in this Section shall be furnished to the appropriate employee collective bargaining unit representative.
During the term of this Settlement Agreement, Beverly Enterprises will permit OSHA entry into and inspection of the Cited and Non-Cited Facilities (hereinafter, "Facilities") to determine progress and compliance with this Agreement. The Secretary agrees that, assuming implementation of the Settlement Agreement by Beverly Enterprises, OSHA shall not conduct a programmed inspection of conditions covered by this Agreement at the Facilities during the term of this Agreement OSHA retains the right to conduct all other types of inspections permitted under the OSH Act and nothing in this Agreement will be construed to alter or affect Respondent's rights and obligations under the Act with respect to such inspections. During the term of this Settlement Agreement, the Secretary agrees not to file a complaint and OSHA will not issue citations against Respondent or Respondent's subsidiaries for conditions arising out of or related to lifting, transferring or repositioning of residents at the Facilities, unless OSHA determines that Beverly Enterprises is not implementing this Settlement Agreement in good faith.
OSHA recognizes that Beverly Enterprises is implementing a programmatic abatement program. Therefore, the Secretary agrees that, for the term of this Settlement Agreement, as long as Beverly Enterprises is in good faith compliance with the terms of this Agreement, OSHA will accept compliance with this Agreement as abatement under the Act of the conditions covered by this Agreement.
OSHA agrees that during the term of this Settlement Agreement, if it reaches a preliminary determination that Beverly Enterprises may not be in compliance with this Agreement, OSHA will promptly notify Beverly Enterprises and the employee representative of its preliminary determination and provide a reasonable time for Beverly Enterprises and the employee representative to provide a written response. If the Secretary has concerns or questions regarding any information contained in Beverly Enterprises' reports provided in Section XIII, she will raise her concerns or questions in writing within 30 days of receiving the report so that Beverly Enterprises and the authorized employee representative can review them. The Secretary, Beverly Enterprises, and the authorized employees' representative will then engage in good faith discussions to resolve any disagreement This Section is not intended to limit the Secretary's right to use, as appropriate, enforcement methods provided by the OSH Act. If the authorized employee representative has any concerns or questions regarding Beverly Enterprises' compliance with this Agreement, it may raise those concerns in writing and provide them to Beverly Enterprises and the OSHA Office having jurisdiction of the affected facility for review and response. Beverly Enterprises, the authorized employee representative, and the Secretary will then engage in good faith discussions to resolve any disagreements.
This Settlement Agreement shall be in effect for a period of five years from the date of the Commission's entry of the Final Order.
1. Beverly Enterprises will ensure that injury and illness recordkeeping is performed consistent with applicable OSHA regulations regarding injury and illness recordkeeping. Nothing in this Agreement is intended to alter or change the rights or responsibilities of the parties with regard to recordkeeping pursuant to 29 CFR 1904 or access to records under 29 CFR 1910.1020 or 29 CFR 1913.10.
2. Each Cited Facility will provide the OSHA logs and the supplemental incident records required by 29 CFR 1904 beginning with the year 2002 and annually thereafter, by March 1 of each year, for the term of this Agreement, to the OSHA Area Office having responsibility for each Cited Facility.
It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Therefore, the parties stipulate and agree as follows: This Settlement Agreement, the Consent Order, and any statements, actions, and findings made by Respondent in connection herewith or hereafter in fulfilling its obligations under the Agreement do not and shall not constitute an admission of any violation of the Act. The parties further agree that nothing contained in this Agreement or Consent Order shall be interpreted as an admission in any way that Respondent has acted in a manner that is detrimental to the safety and health of its employees. Furthermore, regarding the citations, Respondent specifically denies any and all allegations that it violated the Act. The Agreement or Consent Order shall not be construed as an admission, treated as evidence of any fact or of any violation of the Act, or used in any proceeding before any court, agency, commission, or any other body, except for further proceedings under the Act to enforce this Agreement.
Furthermore, nothing in this Agreement is to be construed as an admission by Respondent that any employee's musculoskeletal injury is work-related or that musculoskeletal injuries are a recognized hazard. As stated, this Agreement is being entered into solely to avoid further protracted litigation and additional expenses to the parties.
A. For the purposes of this Agreement, the Secretary and Beverly Enterprises agree that "Non-Cited Facilities" refers to the nursing homes owned and operated by subsidiaries of Beverly Enterprises, excluding those facilities located in states covered by Section 18 of the Act that have state occupational safety and health plans and the five Cited Facilities.
B. Within five (5) years from the date of the entry of the Commission's Final Order, Respondent will adopt and implement at the Non-Cited Facilities the same provisions of the "Policy" as set forth in Appendix A, attached and a Lift Program "Guide" that will be in substantially the same form as set forth in the "Guide" as provided in Appendix A.
C. The parties agree to the following schedule and milestones. As noted previously, this Section shall not apply to Facilities owned and/or operated by Respondent or Respondent's subsidiaries located in states covered by Section 18 of the Act that have state occupational safety and health plans:
E. This agreement will become moot and rendered null and of no effect, if and when the Secretary of Labor promulgates a rule or standard governing the conditions and activities covered by this Agreement.
The parties agree to waive their right to appeal or otherwise seek review of the Decision and/or Remand of the Occupational Safety and Health Review Commission dated October 27, 2000 in Docket Not 91-3344, 92-0238, 92-0819. 92-1257, 93-0724 ("Commission Decision"). The Commission Decision shall not have res judicata, collateral estoppel, or other preclusive effect and no court, agency, or other forum shall give the Commission Decision res judicata, collateral estoppel, or other preclusive effect. The Secretary and Beverly Enterprises further agree that the citations, settlement agreement and/or order issued pursuant to the settlement agreement shall not be used by OSHA to support "willfuI" or "repeat" classifications in citations against Beverly Enterprises or any subsidiary. Nothing in this paragraph is intended to limit the Secretary's statutory right to enforce this Settlement Agreement.
Respondent agrees that it shall not retaliate or discriminate in any way against any employee who takes any action related to the terms of this Agreement including, but not limited to, reporting complaints related to compliance with this Stipulation and Settlement Agreement, the Policy or Guide.
Each party agrees to bear its own attorneys' fees, costs and other expenses incurred by such party in connection with any stage of these proceedings up to and including the filing of this Agreement and entry of the Final Orders in these matters, including, but not limited to, attorneys' fees and costs which may be available under the Equal Access to Justice Act, as amended.
In accordance with Commission Rules 7 and 100, Respondent shall post a summary of this Stipulation and Settlement Agreement, in a form to be agreed upon by the parties, at facilities covered by this Agreement in a place and manner suitable for review by all affected employees.
Appendix A [PDF 222KB] Lift Program Policy and Guide
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
| ELAINE L. CHAO, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Complainant, v. Beverly Enterprises, Inc., d/b/a Richland Manor. Meyersdale Manor, Carpenter Care Center, Beverly Manor of Monroeville and Blue Ridge Haven Convalescent Center West, and its successors. Respondent, Service Employees International Union, District 1199P & Local 668 Authorized Employee Representative. |
OSHRC Docket Nos: 91-3344 92-0238 92-0819 93-0724 92-1257 |
STIPULATION AND SETTLEMENT AGREEMENT
Elaine L. Chao, Secretary of Labor, United States Department of Labor (Complainant), Beverly Enterprises, Inc., (Respondent), and Service Employees International Union, District 1199P and Local 668 (the SEIU), Authorized Employee Representative, have reached a final and complete settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. Accordingly, the parties stipulate and agree as follows:I.
The Occupational Safety and Health Review Commission has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter, the Act).II.
Respondent, Beverly Enterprises, Inc., ("Beverly Enterprises"), is a corporation with its corporate headquarters in Ft. Smith, Arkansas. Respondent's subsidiaries own and operate five skilled nursing facilities in Pennsylvania known as Carpenter Care Center, in Tunkhannock, Pennsylvania; Blue Ridge Haven Convalescent Center West (d/b/a West Shore Health and Rehabilitation Center) in Camp Hill, Pennsylvania; Beverly Manor of Monroeville in Monroeville, Pennsylvania; Meyersdale Manor in Meyersdale, Pennsylvania; and Richland Manor in Johnstown, Pennsylvania (hereinafter referred to as Carpenter Care, Blue Ridge Haven, Monroeville, Meyersdale, and Richland, respectively. For purposes of this Stipulation and Agreement, these five facilities are referred to as the Cited Facilities). Respondents subsidiaries own and operate other nursing homes located throughout the United States.
III.
At all times material to this proceeding Respondent has been engaged in the business of providing long-term residential care in the Cited Facilities. Respondent is an employer engaged in a business affecting commerce as defined by Sections 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.
IV.
As a result of OSHA inspections conducted at the Cited Facilities, five citations and notifications of proposed penalties were issued to Respondent alleging violations of Section 5(a)(1) of the Act. (Carpenter Care citation issued January 31, 1992; Blue Ridge West citation issued February 1, 1993; Monroeville citation issued March 20, 1992; Meyersdale citation issued December 5, 1991; Richland citation issued November 12, 1991.)
V.
Respondent timely contested the citations and notifications of proposed penalties.
VI.
The SEIU, as authorized employee representative, was granted party status.
VII.
After a hearing on the citations was held from March 21, 1994 through June 30, 1994, the Administrative Law Judge issued a decision vacating the citations.
VIII.
On October 27, 2000, the Review Commission issued a Decision and Order reversing the decision of the Administrative Law Judge and remanded the matter for consideration of the remaining issue, feasibility of abatement.
IX.
This Stipulation and Settlement Agreement is being entered into in order to avoid the time and expense involved in litigation. Accordingly, Respondent agrees to withdraw its notices of contest to the Citations and the Secretary agrees that a penalty of $1.00 for each of the five 5(a) Citations will be assessed. Respondent's withdrawal of its Notices of Contest is made solely to facilitate the settlement of this matter and it does not qualify in any manner Section XVII below.
X.
The parties agree to the provisions of the "Policy and Guide," attached as Appendix A and hereinafter referred to as the "Policy and Guide." The Lift, Transfer and Repositioning Policy" ("Policy") is set forth in Chapter Two of the Policy and Guide. The Lift Program Guide ("Guide"), to be made specific for each facility described herein, is set forth in Chapters Three through Eight of the Policy and Guide. The Policy and Guide is incorporated in its entirety into this Stipulation and Settlement Agreement. This Stipulation and Settlement Agreement shall become a Final Order of the Commission enforceable under Section 11(b) of the Act. Included with this Agreement is a draft Final Consent Order approving this Settlement. The form and content of the Final Consent Order and the Stipulation and Settlement Agreement have been negotiated by the parties who hereby consent to the entry of the Final Consent Order as the Final Order of the Review Commission so that the litigation of these matters may be concluded.
XI.
Implementation of the Policy and Guide
Implementation of the Policy and Guide
In settlement of the litigation, Respondent agrees, within ninety days of the Commission's Final Order in this matter, to adopt the Policy and Guide at each of the Cited Facilities, and to identify key personnel at each facility responsible for implementing the Policy and Guide, including the development of requisite training and the equipment acquisition schedules. Training and acquisition of equipment will be accomplished in accordance with the schedule described herein. Full implementation of the Policy and Guide will be accomplished upon completion of the training and acquisition of equipment. As part of this Settlement Agreement and as discussed in the Policy and Guide, Beverly Enterprises will designate a manager at each Cited Facility who has responsibility for implementation and compliance with the Policy and Guide. As part of this Settlement Agreement, Beverly Enterprises will purchase within 12 months from the date of the Commission's Final Order in this matter, a Lift Walker, friction reducing devices, and two-handled transfer belts for each Cited Facility. Beverly Enterprises agrees to maintain in each Cited Facility an adequate number of mechanical lift equipment and devices to Billy and effectively implement the Policy and Guide, based on the size and dependency classification of each facility's resident population. Within ninety days of the date of the Commission's Final Order in this Matter, Beverly Enterprises will establish and provide to OSHA a schedule for the acquisition of the Lift Walker, friction reducing devices, and two-handled transfer belts.
XII.
Training Program
Within thirty days from the date of the Commission's Final Order in this matter, Beverly Enterprises, following consultation with the union/management safety committee at each Cited Facility, shall establish a training schedule for all employees whose duties include or involve lift, transfer or repositioning assistance, including supervisory and managerial staff, and the responsible manager designated in the Guide at each Cited Facility. This training shall be consistent with the training described in the Guide and shall include explanation of the Policy, preferred methods, communication tools, storage location, and use of all assistive equipment, pertinent instructional materials from equipment manufacturers, including videos demonstrating proper use of mechanical lift equipment, lift assist devices, and friction reducing devices, hands on practice operating the assistive equipment, and the opportunity to ask questions. Initial training for all nursing assistants at the Cited Facilities and training sufficient to enable the responsible manager designated in the Guide at each Cited Facility to implement and comply with the Policy and Guide shall be completed within six months from the date of the Commission's Final Order in this matter. All newly-hired and transferred employees whose duties include lift, transfer or repositioning assistance will receive the training required under this Section at the time of orientation or before assuming patient handling responsibilities. Training on newly-acquired equipment and devices will be provided reasonably promptly upon acquisition.
XIII.
Compliance/Verification Reports
During the term of this Settlement Agreement, Respondent shall provide for each Cited Facility the following information, semiannually beginning with the effective date of this Settlement Agreement, to the respective OSHA Area Office having jurisdiction:
1. A copy of the site-specific Guide. (The parties acknowledge that a copy of the "Guide" need only be submitted once, unless otherwise stated.);
2. Any change in the identity of the designated facility manager responsible for ensuring compliance with the Policy and Guide;
3. Program implementation Checklist (showing completion of specified activities since the date of the last report);
4. Identification of any assistive equipment acquired since the effective date of this Agreement, or the date of the last report;
5. Skills Check Off Sheets for all associates receiving initial training in the Lift Program, including all nurses, nursing assistants and other associates whose duties involve lift, transfer and repositioning assistance for residents; Skills Check Off Sheets for all newly hired and transferred nurses, nursing assistants and other associates whose duties involve lift, transfer and repositioning assistance for residents; Attendance Sheets for annual refresher training; and documentation of any necessary remedial training;
6. Supervisor's Accident Investigation Reports related to resident lifting and transferring activities;
7. Resident Census summary information to include (a) number of residents by classification per MDS, Section G. (b) number of residents lifted mechanically, and (c) number of residents lifted manually.
The information referenced in this Section shall be furnished to the appropriate employee collective bargaining unit representative.
XIV.
Entry Into Facilities
During the term of this Settlement Agreement, Beverly Enterprises will permit OSHA entry into and inspection of the Cited and Non-Cited Facilities (hereinafter, "Facilities") to determine progress and compliance with this Agreement. The Secretary agrees that, assuming implementation of the Settlement Agreement by Beverly Enterprises, OSHA shall not conduct a programmed inspection of conditions covered by this Agreement at the Facilities during the term of this Agreement OSHA retains the right to conduct all other types of inspections permitted under the OSH Act and nothing in this Agreement will be construed to alter or affect Respondent's rights and obligations under the Act with respect to such inspections. During the term of this Settlement Agreement, the Secretary agrees not to file a complaint and OSHA will not issue citations against Respondent or Respondent's subsidiaries for conditions arising out of or related to lifting, transferring or repositioning of residents at the Facilities, unless OSHA determines that Beverly Enterprises is not implementing this Settlement Agreement in good faith.
OSHA recognizes that Beverly Enterprises is implementing a programmatic abatement program. Therefore, the Secretary agrees that, for the term of this Settlement Agreement, as long as Beverly Enterprises is in good faith compliance with the terms of this Agreement, OSHA will accept compliance with this Agreement as abatement under the Act of the conditions covered by this Agreement.
XV.
Dispute Resolution
OSHA agrees that during the term of this Settlement Agreement, if it reaches a preliminary determination that Beverly Enterprises may not be in compliance with this Agreement, OSHA will promptly notify Beverly Enterprises and the employee representative of its preliminary determination and provide a reasonable time for Beverly Enterprises and the employee representative to provide a written response. If the Secretary has concerns or questions regarding any information contained in Beverly Enterprises' reports provided in Section XIII, she will raise her concerns or questions in writing within 30 days of receiving the report so that Beverly Enterprises and the authorized employee representative can review them. The Secretary, Beverly Enterprises, and the authorized employees' representative will then engage in good faith discussions to resolve any disagreement This Section is not intended to limit the Secretary's right to use, as appropriate, enforcement methods provided by the OSH Act. If the authorized employee representative has any concerns or questions regarding Beverly Enterprises' compliance with this Agreement, it may raise those concerns in writing and provide them to Beverly Enterprises and the OSHA Office having jurisdiction of the affected facility for review and response. Beverly Enterprises, the authorized employee representative, and the Secretary will then engage in good faith discussions to resolve any disagreements.
XVI.
Terms of Agreement
This Settlement Agreement shall be in effect for a period of five years from the date of the Commission's entry of the Final Order.
XVII.
Recordkeeping
1. Beverly Enterprises will ensure that injury and illness recordkeeping is performed consistent with applicable OSHA regulations regarding injury and illness recordkeeping. Nothing in this Agreement is intended to alter or change the rights or responsibilities of the parties with regard to recordkeeping pursuant to 29 CFR 1904 or access to records under 29 CFR 1910.1020 or 29 CFR 1913.10.
2. Each Cited Facility will provide the OSHA logs and the supplemental incident records required by 29 CFR 1904 beginning with the year 2002 and annually thereafter, by March 1 of each year, for the term of this Agreement, to the OSHA Area Office having responsibility for each Cited Facility.
XVIII.
Compromise of Disputed Claim
It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Therefore, the parties stipulate and agree as follows: This Settlement Agreement, the Consent Order, and any statements, actions, and findings made by Respondent in connection herewith or hereafter in fulfilling its obligations under the Agreement do not and shall not constitute an admission of any violation of the Act. The parties further agree that nothing contained in this Agreement or Consent Order shall be interpreted as an admission in any way that Respondent has acted in a manner that is detrimental to the safety and health of its employees. Furthermore, regarding the citations, Respondent specifically denies any and all allegations that it violated the Act. The Agreement or Consent Order shall not be construed as an admission, treated as evidence of any fact or of any violation of the Act, or used in any proceeding before any court, agency, commission, or any other body, except for further proceedings under the Act to enforce this Agreement.
Furthermore, nothing in this Agreement is to be construed as an admission by Respondent that any employee's musculoskeletal injury is work-related or that musculoskeletal injuries are a recognized hazard. As stated, this Agreement is being entered into solely to avoid further protracted litigation and additional expenses to the parties.
XIX.
Non-Cited Facilities
A. For the purposes of this Agreement, the Secretary and Beverly Enterprises agree that "Non-Cited Facilities" refers to the nursing homes owned and operated by subsidiaries of Beverly Enterprises, excluding those facilities located in states covered by Section 18 of the Act that have state occupational safety and health plans and the five Cited Facilities.
B. Within five (5) years from the date of the entry of the Commission's Final Order, Respondent will adopt and implement at the Non-Cited Facilities the same provisions of the "Policy" as set forth in Appendix A, attached and a Lift Program "Guide" that will be in substantially the same form as set forth in the "Guide" as provided in Appendix A.
C. The parties agree to the following schedule and milestones. As noted previously, this Section shall not apply to Facilities owned and/or operated by Respondent or Respondent's subsidiaries located in states covered by Section 18 of the Act that have state occupational safety and health plans:
1.a. Within nine (9) months of the date of the Commission's Final Order, Respondent will furnish the Secretary with an inventory of the mechanical lifts and transfer assist equipment available at sixty-six (66) facilities (the "First Phase Facilities"), to be identified in writing with the inventory;D. If Respondent is unable to meet the deadlines set forth herein above, or if Respondent desires to modify or adjust the Policy and Guide based on experience at the five Cited Facilities and/or at any Non-Cited Facilities that have implemented the Policy and Guide pursuant to the Terms of this Settlement Agreement, Respondent will promptly notify the Secretary, whereupon the parties will attempt to resolve this matter through good faith discussions. In the event Respondent requests an extension of the timetable for implementation or a modification or adjustment to the Policy and Guide, Respondent agrees to furnish the Secretary with such information as may be relevant to evaluate such request. The parties shall further utilize the Dispute Resolution provisions of Paragraph XV to resolve any such matters.
1.b. Within twelve (12) months of the date of the Commission's Final Order, Respondent will complete an assessment and evaluation as to the number, type and cost of additional mechanical lifts and transfer assist equipment needed to be purchased for the First Phase Facilities, and will furnish the Secretary with an acquisition schedule for that equipment;
1.c. Within twenty-four (24) months of the date of the Commission's Final Order, Respondent will complete the purchase of the equipment, fully implement the Policy and Guide (including all necessary training) and provide to OSHA a short summary or checklist confirming completion of these acquisitions and activities at the First Phase Facilities;
2.a. Within eighteen (18) months of the date of the Commission's Final Order, Respondent will furnish the Secretary with an inventory of the mechanical lifts and transfer assist equipment available at sixty-six (66) facilities (the "Second Phase Facilities"), to be identified in writing with the inventory;
2.b. Within twenty-four (24) months of the date of the Commission's Final Order, Respondent will complete an assessment and evaluation as to the number, type and cost of additional mechanical lifts and transfer assist equipment needed to be purchased for the Second Phase Facilities, and will furnish the Secretary with an acquisition schedule for that equipment;
2.c. Within thirty-six (36) months of the date of the Commission's Final Order, Respondent will complete the purchase of the equipment, fully implement the Policy and Guide (including all necessary training) and provide to OSHA a brief summary or checklist confirming completion of these acquisitions and activities at the Second Phase Facilities;
3.a. Within thirty (30) months of the date of the Commission's Final Order, Respondent will furnish the Secretary wit an inventory of the mechanical lifts and transfer assist equipment available at sixty-six (66) facilities (the "Third Phase Facilities"), to be identified in writing with the inventory;
3.b. Within thirty-six (36) months of the date of the Commission's Final Order, Respondent will complete an assessment and evaluation as to the number, type and cost of additional mechanical lifts and transfer assist equipment needed to be purchased for the Third Phase Facilities, and will furnish the Secretary with an acquisition schedule for that equipment;
3.c. Within forty-eight (48) months of the date of the Commission's Final Order, Respondent will complete the purchase of the equipment, fully implement the Policy and Guide (including all necessary training) and provide to OSHA a brief summary or checklist confirming completion of those acquisitions and activities at the Third Phase Facilities;
4.a. Within forty-two (42) months of the date of the Commission's Final Order, Respondent will furnish the Secretary with an inventory of the mechanical lifts and transfer assist equipment available at sixty-seven (67) facilities (the "Fourth Phase Facilities"), to be identified in writing with the inventory;
4.b. Within forty-eight (48) months of the date of the Commission's Final Order, Respondent will complete an assessment and evaluation as to the number, type and cost of additional mechanical lifts and transfer assist equipment needed to be purchased for the Fourth Phase Facilities, and will furnish the Secretary with an acquisition schedule for that equipment;
4.c. Within sixty (60) months of the date of the Commission's Final Order. Respondent will complete the purchase of the equipment, fully implement the Policy and Guide (including all necessary training) and provide to OSHA a brief summary or checklist confirming completion of the acquisitions and activities at the Fourth Phase Facilities.
E. This agreement will become moot and rendered null and of no effect, if and when the Secretary of Labor promulgates a rule or standard governing the conditions and activities covered by this Agreement.
XX.
The parties agree to waive their right to appeal or otherwise seek review of the Decision and/or Remand of the Occupational Safety and Health Review Commission dated October 27, 2000 in Docket Not 91-3344, 92-0238, 92-0819. 92-1257, 93-0724 ("Commission Decision"). The Commission Decision shall not have res judicata, collateral estoppel, or other preclusive effect and no court, agency, or other forum shall give the Commission Decision res judicata, collateral estoppel, or other preclusive effect. The Secretary and Beverly Enterprises further agree that the citations, settlement agreement and/or order issued pursuant to the settlement agreement shall not be used by OSHA to support "willfuI" or "repeat" classifications in citations against Beverly Enterprises or any subsidiary. Nothing in this paragraph is intended to limit the Secretary's statutory right to enforce this Settlement Agreement.
XXI.
Respondent agrees that it shall not retaliate or discriminate in any way against any employee who takes any action related to the terms of this Agreement including, but not limited to, reporting complaints related to compliance with this Stipulation and Settlement Agreement, the Policy or Guide.
XXII.
Each party agrees to bear its own attorneys' fees, costs and other expenses incurred by such party in connection with any stage of these proceedings up to and including the filing of this Agreement and entry of the Final Orders in these matters, including, but not limited to, attorneys' fees and costs which may be available under the Equal Access to Justice Act, as amended.
XXIII.
In accordance with Commission Rules 7 and 100, Respondent shall post a summary of this Stipulation and Settlement Agreement, in a form to be agreed upon by the parties, at facilities covered by this Agreement in a place and manner suitable for review by all affected employees.
| FOR RESPONDENT: Beverly Enterprise, Inc. by Hugh L. Reilly Vice President and Deputy General Counsel Dated: 1/15/02 Michael J. Manzo Attorney for Respondent Dated: 1/15/02 AUTHORIZED REPRESENTATIVE Carol Golubock Attorney for SEIU Dated: Tom DeBruin, President 1199P |
FOR COMPLAINANT: Secretary of Labor U.S. Department of Labor Howard Radzely Acting Solicitor of Labor Catherine Oliver Murphy Regional Solicitor Myrna Butkovitz Regional Counsel Gayle Green Attorney |