_____________________________________
WILLIAM E. BROCK, SECRETARY OF LABOR,)
UNITED STATES DEPARTMENT OF LABOR, )
) OSHRC DOCKET
Complainant, )
) No.87-1000
)
) REGION III
KAISER ALUMINUM & CHEMICAL CORP. )
)
Respondent, )
)
UNITED STEELWORKERS OF AMERICA, )
)
Authorized )
Employee Representative )
_____________________________________)
The parties have reached a full and complete settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. The 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) Respondents, Kaiser Aluminum & Chemical Corp., has its principle place of business in Oakland, California. 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, respondents uses material and equipment which it receives from places located outside California. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(d) 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 August 4, 1986 through June 1, 1987, at respondent's workplace at its Ravenswood Works located at West Virginia Route 2 South, Ravenswood, West Virginia, a willful (within the meaning of Section 17(a) of the Act) citation with three Items was issued to respondent on June 2, 1987, pursuant to the Sections 8 and 9 of the Act. The citation alleged violations of requirements set forth in 29 CFR 1904.2(a). A notification of proposed penalty was also issued to respondent on June 2, 1987. The citation additionally ordered the abatement of the violations by July 2, 1987.
(d) Respondent filed a timely notice of contest to the citation and penalties with the Secretary of Labor. The contest was duly transmitted to the Commission.
(a) Complainant hereby agrees to amend Willful Citation No. 1 in the following respects:
Item, Instance Number Amendment
Item 1, Instance 17 Transfer to Citation No. 1,
Item 2 as Instance No. 138.
Item 1, Instance 31 Vacate.
Item 2, Instance 93 Classification reduced to
"Other than Serious".
Item 2, Instance 110 Vacate.
(b) Complainant agrees to reduce the penalties proposed for the Citation from $15,000 to $12,000.
(c) As grounds for the amendments to Item 1, Instances 17 and 31, and Item 2, Instances 110, complainant avers that, after additional investigation and consideration, said amendments accurately reflect the evidence, current legal precedent, and the organization of the Complaint (viz., Item 1 -- lost workday cases, Item 2 -- medical treatment cases, Item 3 -- illness cases). As grounds for the classification and penalty amendments, complainant avers that said amendments accurately reflect the classification and penalty criteria set forth in Section 17 of the Act.
Respondent agrees to the following provisions:
(a) Respondent agrees to withdraw its notice of contest to the citation 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 $12,000 within twenty (20) days of the execution of this agreement. This amount represents payment of $5,000 each for Items 1 and 3 and $2,000 for Item 2.
(b) Respondent represents that the above-noted alleged violations at its Ravenswoods Works will be corrected by December 1, 1987.(1) Respondent similarly agrees that it will review its recordkeeping practices at all geographic locations covered by the Act as set forth in Section 4(a) of the Act and assure that its records, going back to January 1, 1986, 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 1, 1986. For its Ravenswood, West Virginia facility, respondent assures that all injuries and illnesses going back to January 1, 1985, which are described in the subject citation issued by OSHA, as amended herein, will be recorded in compliance with the above stated statutory and regulatory provisions.
________ FOOTNOTE(1) The employee representative stated that he is not contesting the Stipulation and Settlement Agreement. Accordingly, complainant and respondent believe that the employees who have elected party status are not objecting to the reasonableness of any abatement time with respect to the subject citations.
(c) Respondent agrees to hereafter maintain its injury and illness records 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 January 1, 1988 indicating all programmatic changes instituted corporate-wide and/or at individual plants to implement paragraph 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 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 Section IV (b) and (d) will be entirely accomplished as soon as practicable, but within six months 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 six month period. With respect to paragraph IV (c), respondent avers that it is presently fulfilling its OSHA recordkeeping responsibilities in accord with said provisions.
Assuming compliance by respondent with all provisions of this Stipulation and Settlement Agreement, complainant agrees not to issue any of respondent's facilities during the six month abatement period set forth herein any citations under 29 CFR 1904.2(a) asserting that respondent's log and SUMMARY of occupational injuries and illnesses (OSHA Form No. 200 or its equivalent) were not correctly maintained, except for citations which may arise out of any investigations already initiated prior to the execution of this agreement.
The parties agree that for purpose of recordability under 29 C.F.R. 1904.2(a), "restricted work activity" days are those in which because of injury or illness:
(1) the employee was assigned to another job on a temporary basis, or
(2) the employee worked at a permanent job less than full time, or
(3) the employee worked at his permanently assigned job, but could not perform all duties normally connected with it. The number of recordable restricted work activity days does not include the day of injury or onset of illness of any on which the employee would not have worked even though able to work.
Respondent's agreement to take the proposed action set forth herein and the signing of this Stipulation and Settlement Agreement are not admissions of any violation by the respondent or of the truth of any of the allegations or conclusions of the Citations, of the Complaint, or of any other pleading filed in this matter. Furthermore, neither the signing of this Stipulation of Settlement Agreement nor the doing of the proposed action set forth herein shall be construed in any way as an admission of fault or liability in any claim or proceeding which now exists or may arise and be pursued by any person, agency or entity other than in any subsequent proceeding brought by the complainant under the Act. It is understood and agreed that the citations and penalties affirmed as a result of this Stipulation and Settlement Agreement shall become a final order of the Commission, and nothing contained in this agreement shall be construed in any way to limit the right of the complainant to utilize such Final Order pursuant to proceedings under the Occupational Safety and Health Act of 1970.
Each party agrees to bear all of its own attorneys fees, costs, and expenses arising out of and incidental to the instant matter.
WHEREOF, the parties agree that under the above-noted conditions this matter docket before the Commission as Docket No. 87-1000 is hereby settled.
George R. Salem
Solicitor of Labor
KAISER ALUMINUM &
CHEMICAL CORPORATION
Marshall H. Harris
By: Regional Solicitor
Stephen H. Booth
Corporate Labor Counsel
Mark V. Swirsky
Dated: October 26, 1987 Attorney
UNITED STATES DEPARTMENT OF LABOR
Attorneys for Complainant
Dated: October 27, 1987
I hereby certify that true and correct copies of the foregoing Stipulation and Settlement Agreement and proposed Consent Order was sent this 27th day of October, 1987, by regular mail, postage prepaid to the following:
Steven H. Booth, Esq.
Corporate Labor Counsel
Kaiser Aluminum & Chemical Corp.
300 Lakeside Drive, Room KB 2072
Oakland, CA 94643
Bill Doyle, Chairman
Safety Committee
USWA Local Union #5668
P.O. Box 56
Ravenswood, W Va 26164
Mark V. Swirsky
Attorney
On June 2, 1987, the Department of Labor cited Kaiser Aluminum and Chemical Corporation for violation of the recordkeeping requirements of the Occupational Safety and Health Act, 29 U.S.C. 651, et seq., at its Ravenswood, West Virginia Works. Kaiser contested those citations, and the case was thereafter docketed by the Occupational Safety and Health Review Commission at OSHRC Docket No. 87-1000. The parties to that case have now agreed to a settlement. Kaiser has agreed to pay a penalty of $12,000 for the 209 alleged willful instances of the recordkeeping requirements in the citation as amended.
In additional, Kaiser has agreed to continue the process it began after the Ravenswood inspection began of bringing its records of occupational injuries and illnesses into conformity with OSHA's requirements nationwide. Specifically, as described in paragraph IV(b) of the Stipulation and Settlement Agreement for OSHRC Docket No. 87-1000 ("the Settlement Agreement"), Kaiser has agreed to review and revise its records of occupational injuries and illnesses at all of its facilities nationwide going back to January 1, 1986, except for respondent's Chemical division if it is sold within the six (6) month abatement period provided by the Settlement Agreement. Also, the provisions of paragraph V in the Settlement Agreement concerning the issuance of future citations under 29 CFR 1904.2(a) will not apply to the Chemical division if it is sold by Kaiser within the six month abatement period provided in said agreement. The Department of Labor also has discovered numerous alleged recordkeeping violations at Kaiser's Erie, Pennsylvania foundry facility. Kaiser's agreement in the Ravenswood case evidences a commitment on Kaiser's part to completely abate the alleged violations, and to go beyond the limits of the Ravenswood Works itself in assuring that Kaiser's records are accurate and in conformity with the law at its facilities nationwide. OSHA has taken this nationwide abatement commitment into account in determining the proposed penalties to be attached to the recordkeeping citation which it is issuing regarding Kaiser's Erie plant. OSHA has determined to issue a willful citation concerning the alleged recordkeeping violations found at Kaiser's Erie plant. The citation will have all instances grouped into one Item with a penalty of $10,000. Kaiser will not contest the Erie recordkeeping citation and penalty and will pay the full penalty proposed.
Also, Kaiser assures that all injuries and illnesses going back to January 1, 1985, which are described in the Erie recordkeeping citation, as amended, will be recorded in compliance with the statutory and regulatory provisions set forth in paragraph IV(b) of the Settlement Agreement.
Stephen H. Booth George R. Salem
Corporate Labor Counsel Solicitor of Labor
KAISER ALUMINUM AND CHEMICAL CORP.
Marshall H. Harris
Regional Solicitor
Mark V. Swirsky
Attorney
Date: October 21, 1987 U.S.DEPARTMENT OF LABOR
Date: October 20, 1987