___________________________________
LYNN MARTIN, SECRETARY OF LABOR, )
)
Complainant, )
)
v. ) OSHRC Docket
) No. 91-1986
FRASER PAPER, LTD., ) 91-2330
and its successors, ) 91-2807
) 91-2808
Respondent, )
)
UNITED PAPERWORKERS INTERNATIONAL )
UNION, LOCALS 291, 365 and 1247; )
)
OFFICE AND PROFESSIONAL EMPLOYEES )
INTERNATIONAL UNION, LOCAL 232, )
)
Authorized )
Employee )
Representatives. )
___________________________________)
Fraser Paper, LTD. ("Fraser" or "the company") and its successors and Lynn Martin, SECRETARY OP LABOR, the UNITED STATES DEPARTMENT OF LABOR ("the secretary"), by their undersigned representatives, have reached a full and complete settlement of OSHRC Docket No. 91-1986, 91-2330, 91-2807 and 91-2808 under Rule 2200.100, the Occupational Safety and Health Review Commission's ("the Commission's") procedural rule on settlement. Accordingly, the Secretary and Fraser Paper, Ltd state as follows:
1. The Commission has jurisdiction of this matter under 29 U.S.C. 659(c), Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").
2. Fraser Paper's paper mill, located at Madawaska, Maine is presently the only paper mill owned and/or operated by respondent in the United States. Any additional paper manufacturing mills acquired and/or operated by Fraser in the United States during the term of this Agreement shall promptly develop and implement an Audit Program and Action Plan for the identification and correction of hazardous conditions, as those terms are defined in this agreement.
3. The total proposed penalty for OSHRC Docket Nos. 91-1986, 91-2330, 91-2807 and 91-2808 is amended to $1,300,000. Payment shall be made to "DOL-OSHA" and filed with the Augusta, Maine, Area Office within thirty days after execution of this Agreement by the parties.
4. Fraser undertakes the obligations in this Agreement in consideration for, among other things, the amendments to the citations referenced in Paragraphs 3 and 9, as well as the commitments made by the Secretary in Paragraph 8 of this agreement.
5. Fraser agrees to implement a special plant-wide safety and health program ("Program"). The Program shall include but not be limited to: A) All items cited by OSHA at the Madawaska facility; 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 Fraser to address safety and health. The Program shall consist of an Audit Program and Action plan. The implementation period for the Audit Program and Action Plan shall commence on the date or execution of this Agreement and shall terminate on November 30, 1994. The Audit Program shall be completed no later than June 30, 1993 [with the exception of any process hazard analysis(es) required by 5(c)], and as a minimum, shall include at least the following elements:
(a) A review of the current facility management systems for the following substantive health and safety areas: (1) industrial truck safety; (2) machine guarding; (3) electrical safety; (4) respiratory protection; (5) hearing conservation and noise; (6) occupational illness and injury recordkeeping; (7) general housekeeping; (8) industrial hygiene monitoring; (9) hazard communication and (10) emergency response. This review step is to conduct an examination of the safety program and management systems in the facility to determine if the program and systems are adequate to address the potential hazards identified in the second element below. (b) The identification of potential hazards in the facility related to the substantive health and safety areas listed in the first element above as well as an evaluation of the gravity of those potential hazards and of appropriate corrective action. (c) Conducting any process hazard analyses required by 29 C.F.R. 1910.ll9(e). (d) an evaluation of the readiness of the facility to respond to emergencies generally and to emergencies involving process chemicals specifically.
6. Fraser also agrees as follows:
A) To develop and implement an Action Plan to correct any hazards or potentially hazardous conditions falling within paragraph 5 above noted during the Audit Program. The Action Plan shall include a timetable for the correction of all identified hazards and it shall provide for the interim protection of workers until abatement is accomplished. Development of the Action Plan shall be completed no later than August 31, 1993. Feasible methods to correct any identified health or safety hazards and violations shall be implemented as early as possible; in any event, the implementation shall be completed by November 30, 1994.
B) To prepare and keep for representatives of the Secretary all records of the Audit Program, as well as the Action Plan for the facility. These documents shall be made available to the Secretary's representative upon request and shall be maintained by Fraser for a period of one year after all corrective actions pursuant to the Action Plan have been completed.
C) To engage the consulting services of independent certified safety and health professional(s) to 1) ensure that the implementation of the Audit Program addresses all elements required by this Agreement, and 2) provide independent verification of implementation of the Action Plan. The consultant(s) shall be knowledgeable regarding the technical aspects of the operations of the Company's facilities.
D) A copy of the Audit Program and Action Plan and Quarterly reports shall be submitted to the Maine OSHA area office and to OSHA's Office of Field Programs in Washington, D.C. The first report shall be submitted within 90 days of the completion of the Audit Program and shall contain an inventory of the conditions identified during the Audit Program which will be corrected under Paragraph 6.A. of this Agreement pursuant to the Action Plan. The reports shall describe the activities under this settlement agreement during each three month period. The reports shall be signed by the manager of the facility and certified by the consultant. All reports required under this agreement shall be made available to appropriate employee collective-bargaining unit representatives and the safety and health committee.
E) To require no warrants for entry by the Secretary's representative, and to require no subpoenas for access to documents related to compliance with this Settlement Agreement, including any reports of independent consultants.
F) To permit reasonable monitoring inspections by representatives of the Secretary to evaluate progress and compliance under this Agreement.
G) To maintain communications with the employees and employee representatives, if any, about the progress of the safety and health program in the facility and to involve employees in the implementation of the Program.
7. Fraser 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) through the following actions:
A) A reaffirmation by Fraser'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 oversight of achievement of these goals by Fraser's Senior Management.
C) Fraser 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) A commitment of sufficient company resources and safety and health personnel to conduct annual safety and health program reviews, in order to improve Fraser's ability to detect and, if detected, correct health and safety hazards and violations in the Company's facilities.
E) A commitment of sufficient company resources to conduct quarterly worksite inspections to identify and eliminate hazards and violations. This will include an appropriate number of qualified safety and health professionals to maintain the facility in compliance with the Act.
F) A commitment of sufficient company resources, including personnel, for the timely implementation of the Action Plan under paragraph 6.A., above, and for employee safety and health training in the Company's facility, primarily to address the conditions and hazards identified in the Citations, through the Audit Program, and through subsequent program reviews and safety and health inspections conducted under paragraphs 7.D and 7.E above.
8. In consideration for the obligations undertaken by Fraser and assuming the good faith implementation of this Agreement by the Company, the Secretary, in addition to the actions taken with respect to the Citations and the total proposed penalty, agrees as follows:
A) Not to cite Fraser for any working conditions identified by the Program provided that such conditions are being addressed in good faith in accordance with this Agreement (including correction, if necessary).
B) Not to conduct a programmed inspection of the substantive areas addressed by the Audit Program in the Fraser facility covered by this Agreement during its implementation period. The Secretary shall continue to conduct all other types of inspections permitted under the Act, subject to the provisions of paragraph 8.A. Furthermore, during the implementation period, the Secretary's response to non-formal employee complaints involving the facilities subject to the program shall be to contact the manager of the facility to determine: i) whether the condition complained of exists; and ii) if it exists, whether the condition is being or will be addressed as part of the facility's activities pursuant to this agreement. The manager shall respond to this inquiry in writing. If the condition is being or will be addressed pursuant to this agreement, the complaining party shall be so informed, no complaint inspection shall take place, and that complaint investigation shall be closed. If, however, the complaint alleged imminent danger, normal OSHA procedures for conducting an investigation limited to the alleged imminent danger shall be followed.
9. Respondent states that all cited conditions in the citations have been abated except as listed in Appendix A. Unabated conditions will be corrected by January 30, 1993. The citations at issue in OSHRC Docket Nos. 91-1986, 91-2330, 91-2807, and 91-2808, are further amended by deleting all characterizations of alleged violations as "willful" in such citations. Monthly progress reports shall be submitted to the Maine Area Director reporting the status of all unabated items.
10. All documents or other information generated by the activities described in this Agreement shall be handled pursuant to Section 15 of the Act, 29 U.S.C. 664, 18 U.S.C. 1905, and 29 C.F.R. 1903.9. Fraser shall have the obligation to identify the document, information, or portion thereof that contains proprietary or business confidential material. All documents or information so identified by Fraser shall be maintained by the Secretary as confidential information and shall be disclosed by the Secretary only to those employees of the United States Department of Labor that have a bona fide need to know such confidential information.
11. All dates and time periods imposed by this Agreement, unless otherwise indicated, shall run from the date of execution of this agreement. The parties shall confer in good faith with the intent of reaching agreement on some reasonable extension or extension of the periods set forth in this agreement and in the Citations, as amended, if Fraser is unable to take the required action within such periods. The Secretary's procedures for modifying abatement dates, 29 C.F.R. 1903.14a, shall be utilized in such circumstances, and the Secretary shall not unreasonably deny a timely-filed petition under that regulation.
12. Fraser withdraws its Notice of Contest to the Citations and Penalties in OSHRC Docket Nos. 91-1986, 91-2330, 91-2807 and 91-2808, as amended. This withdrawal, however, is made solely to facilitate the settlement of this matter. It does not qualify and is not to be interpreted as being inconsistent with Paragraph 13 below.
13. Fraser specifically denies any and all allegations that it violated the Act. Nothing in this agreement, including the agreement itself, its execution, as well as any final order, is an admission or evidence, nor is it to be construed as an admission or treated as evidence, of any fact or of any violation of the Act by Fraser, other than in a proceeding brought by the Secretary under the Act. This Agreement is being entered into solely to avoid further litigation and expense to the parties.
14. There are no citation items in OSHRC Docket Nos. 91-1986, 91-2330, 91-2807 and 91-2808 that remain to be decided by the Commission.
15. The parties agree that this Agreement and the underlying citations and abatement dates, as amended, shall become a final order of the Commission, upon execution of the Agreement by the parties. Included with this Agreement is a draft order approving this Settlement Agreement. The form and content of this draft order have been negotiated by the parties. The parties hereby consent to the entry of this draft order so that the litigation of this matter may be brought to an end.
16. The parties agree that the Secretary is entitled to an order under Section 11(b) of the Act, 29 U.S.C. 660(b), in the Court of Appeals enforcing this agreement. The employer consents to the entry of such an order, and in the event the Secretary seeks enforcement of this agreement in the Circuit Court, Fraser agrees that it will not defend on the basis of any alleged legal infirmity in this agreement or in the order entered pursuant to 11(b) of the Act.
17. The parties agree to bear their own attorney's fees, costs, and other expenses that have been incurred in connection with any stage of these proceedings up to and including the filing of this Agreement.
18. All questions involving an interpretation of this agreement shall be directed to Fraser's Manager of Safety and Health and to the Director of Compliance Programs of the Occupational Safety and Health Administration of the United States Department of Labor.
19. Fraser certifies that the original Notice of Contest as well as all pleadings in OSHRC Docket Nos. 91-1986, 91-2330, 91-2807 and 91-2808, including a copy of this agreement, have been served on affected employees at the Madawaska facility in accordance with Commission Rule 2200.7.
20. This Agreement shall expire on November 30, 1994, or, if time periods have been modified pursuant to Paragraph 11, 30 days following the completion of all corrective actions under the Action Plan.
Respectfully submitted this 15th day of January , 1993.
For Fraser Paper: For the Secretary of Labor:
_________________________ _____________________________
James Giffune Russell B. Swanson
Vice President for Deputy Assistant Secretary for
Operations Occupational Safety & Health
_________________________ _____________________________
S. Mason Pratt, Jr. H. Berrien Zettler
Attorney Deputy Director
Pierce, Atwood, Scribner, Directorate of Compliance
Allen, Smith & Lancaster Programs
Marshall J. Breger
Solicitor of Labor
Al Ross
Regional Solicitor
_________________________ _____________________________
Frank White Kenneth A. Hellman
Attorney Senior Trial Attorney
McDermott, Will & Emery
Nick Levintow
Attorney
Office of the Solicitor
Jan. 15, 1993 1/15/93
Date Date
December 21, 1992
TO: Mr. Frank White
The following is a list of cited OSHA Items which will not be abated in 1992:
Inspection Number 102749868
01-S-3aa 700 Paint Shop (Wood Ceiling)
01-S-3ba 700 Paint Shop (Wood Doors)
01-8-7a 700 Paint Shop (Storing Variety of Material)
01-S-9a 700 Paint Shop (Spray Booth Exhaust Fan)
01-S-1oo 700 Paint Shop (Storing More 1 Day Supply
of Paint in Spray Room)
Inspection Number 102750395
03-0-33r #1 PM Basement D.S. Dry End Slusher - Cables rated
for 600V are overloaded in cable tray and
suspended from tray to tray - 75% Complete.
______________________________
Glenn D. Saucier
Manager, Safety & Health