______________________________
LYNN MARTIN, Secretary of )
Labor, United States )
Department of Labor, )
)
Complainant, )
) OSHRC Docket
vs. )
) No. 20-1395
FISH ENGINEERING & )
CONSTRUCTION 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. Respondent agrees to implement a corporate-wide safety and health program ("Program"). The Program shall include, but not be limited to: A) All items cited by OSHA as a result of Inspection No. 107365751, citations issued April 19, 1990; B) conditions covered by OSHA's General Industry and Construction Standards; C) other hazards subject to Section 5(A)(1) of the Act; and D) management systems already implemented by Respondent to address safety and health. The Program shall consist of an Audit Program and Action Plan. The Audit Program shall be completed no later than six months after the signing of this agreement and, as a minimum, shall include at least the following elements:
a. A review of the current management systems for the following substantive health and safety areas: (1) safety permit systems; (2) hot work permits; (3) training; (4) process safety information; (5) electrical safety; (6) respiratory protection; (7) hazard communication; and (8) emergency response.
b. The identification of potential hazards in employee work environments related to the substantive health and safety areas listed in the first element above as well as an assessment of those potential hazards.
c. An examination of the safety program and management systems to determine if the program and systems are adequate to address the potential hazards identified in the second element above.
4. Respondent further agrees as follows:A) To develop and implement an Action Plan to correct any potentially hazardous conditions falling within paragraph 3 above noted during the Audit Program. The Action Plan shall include a timetable for all items which require more than three (3) months to implement, and it shall provide for interim protection of workers until the Action Plan is implemented. Development of the Action Plan shall be completed no later than thirty (30) days after the completion of the Audit Program. Possible methods to correct any identified health or safety hazards, violations and concerns shall be implemented as early as possible; in any event, the implementation shall be completed by one year from the completion of the Audit Program.
B) To prepare and keep for representatives of the Secretary records of each audit as well as the Action Plan. These documents shall be made available to the Secretary's representative upon request.
C) A copy of the initial Audit Program and Action Plan shall be submitted to the South Houston OSHA area office and to OSHA's national office, Director of Compliance Programs.
D) To maintain communications with the employees and employee representatives, if any, about the progress of the safety and health program and to involve employees in implementation of the Program.
5. Respondent also agrees to adhere to the principles set forth in the Secretary's Voluntary Guidelines for Safety and Health Program Management, 5 F.R. 3904 (January 26, 1989) and to enhance the Company's corporate-wide commitment to the implementation of those Guidelines through the following actions:
(a) A reaffirmation by Respondent's Chief Executive Officer of the fundamental importance to the Company of safety and health protection for every company employee. This commitment shall be communicated in writing to all company employees through the issuance of a clear policy on safe and healthful working conditions.
(b) The establishment of clear corporate safety and health goals and objectives for management, with clear responsibilities assigned to managers and supervisors for achieving those goals and objectives. There shall be both worksite level and corporate level oversight of achievement of these goals.
(c) Managers and supervisors will be held accountable for achieving their assigned goals and objectives. This shall be reinforced through the performance evaluation system and appropriate incentives.
(d) An increased commitment of resources to conduct regular worksite evaluations to identify and eliminate hazards, violations and concerns. This will include an appropriate number of qualified safety and health professionals to maintain the worksite in compliance with the Act.
(e) An increased commitment of corporate resources for employee safety and health training in all of the Company's workplaces. The safety and health training programs shall focus on those conditions identified through the Audit Program or subsequent safety and health evaluations in paragraphs (d) above.
6. Complainant moves to amend Citation Number 2 to allege a Section 17 violation.
7. Respondent states that the violations alleged in Citation Nos. 1, 2 and 3 have been abated.
8. The total proposed penalty for OSHRC Docket No. 90-1395 is amended to $100,000.00. Respondent's compliance with the terms of this agreement shall be determined as follows:
A. Simultaneous with the submission of the initial Audit Program and Action Plan under paragraph 4(C) hereinabove, Respondent shall submit a report on action taken and planned to comply with Respondent's other obligations under this agreement, which documents collectively are referred to as the "Settlement Agreement Report" herein;
B. Thereafter, on the anniversary of the effective date of this agreement for the following five (5) years, terminating on such anniversary date in 1997, Respondent shall submit to the South Houston Area Office and to OSHA's National Office, Director of Compliance Programs, an updated Settlement Agreement Report describing action taken and planned in compliance with the terms of this agreement.
C. OSHA shall indicate its approval or disapproval of the initial and each annual Settlement Agreement Report in writing within a reasonable period of time after receipt thereof. In the event of disapproval, OSHA shall state its points of disagreement, and the reasons therefor, in writing, so that Respondent may review them. OSHA and Respondent will then engage in good faith discussions to resolve the disagreement.
D. If OSHA determines after such discussions that the disagreement cannot be resolved, OSHA may initiate action in an appropriate Circuit Court of Appeals for a determination of whether Respondent is in violation of the terms of this agreement, provided that such court action shall be initiated no less than thirty days from the receipt by Respondent of OSHA's written disapproval;
E. In the event that Respondent is found by an appropriate Circuit Court of Appeals to have violated the terms of this agreement within five (5) years of the effective date of this agreement, Respondent agrees to pay to OSHA the additional sum of $300,000.00;
F. Nothing herein shall limit OSHA's right to use, as appropriate, enforcement methods provided by the OSH Act.
9. The parties agree that the Secretary is entitled to an order under Section 11(b), 28 U.S.C. 660(b), of the Act in an appropriate Circuit Court of Appeals enforcing this agreement. The Respondent consents to the entry of such an order, the form of which is attached to this agreement.
10. Respondent withdraws its Notice of Contest to the Citations in OSHRC Docket No. 90-1395, as amended.
11. Neither this settlement agreement nor Respondent's consent to entry of a final order by the Commission pursuant to this agreement, constitutes any admission by respondent of violation of the Occupational Safety and Health Act or regulations or standards promulgated thereunder. Neither this settlement agreement nor any order of the Commission entered pursuant to this agreement shall be offered, used or admitted in evidence in any proceeding or litigation, whether civil or criminal other than proceedings before OSHA.
12. All dates and time periods imposed by this Agreement, unless otherwise indicated, shall run from the date of execution of this Agreement.
13. Respondent certifies that the affected employees in the above-styled case are not represented by an authorized employee representative.
14. 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 21st day of August, 1992.
15. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.
DATED this 6th day of August, 1992.
FOR FISH ENGINEERING & FOR THE U.S. DEPARTMENT
CONSTRUCTION, INC. OF LABOR
MARSHALL J. BREWER
Solicitor of Labor
_________________________
KAY MCCALL JAMES E. WHITE
General Counsel Regional Solicitor
JACK F. OSTRANDER
_________________________ Counsel for Safety and Health
JAMES D. WISE, JR.
By:
Brown, Sims, Wise & White
2000 Post Oak Boulevard
Twenty-First Floor
Houston, Texas 77056 _______________________________
Tel: 713/629-1580 BRIAN L. PUDENZ
Trial Attorney
Attorneys for Respondent
U.S. Department of Labor
Office of the Solicitor
525 Griffin Street, Suite 501
Dallas, Texas 75202
Tel: 214/767-4902
Attorneys for Complainant
OSHA Inspection No. 107365751
RSOL Case No. 90-0099
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 LOUIS G. LA VECCHIA, ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 1100 COMMERCE STREET, SUITE 7811, DALLAS, TEXAS 73242, WITH COPIES TO COMPLAINANT AND RESPONDENT.