SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Complainant,               v. MANOR CARE HEALTH SERVICES, and its Successors, Respondent.

OSHRC Docket Nos. 02-0408 and 02-0429 (CONSOLIDATED)

OSHA Inspection Nos. 304974041 (Health) and 304974090 (Safety)

 

The Secretary of Labor, United States Department of Labor, hereinafter referred to as the "Secretary," and Manor Care Health Services (MCHS), also known as Manor Care, Inc., and HCR Manor Care, and its Successors, hereinafter referred to as "Respondent," stipulate and agree as follows:

The Secretary hereby modifies Citation number 1, Item 1 by recharacterizing it as Other than Serious; and hereby reduces the penalty for Citation number 1, Item 1 from $1083.00 to $540.00. Citation number 2, Item 1, with no proposed penalty, remains unchanged.

CITATION NO. 1 AND CITATION NO. 2 (SAFETY) IN DOCKET
NO. 02-0408 - Insp.304974090

Item	Proposed Penalties	Amended Penalties	Other Amendments
Serious Item 1	$1,083	$540	Item 1 is recharacterized as Other than Serious.
Other than Serious Item 1	-0-	-0-	No change

The Citation and notification of proposed penalty is deemed amended accordingly.
 

The Secretary hereby modifies Serious Citation number 1, Items 2a and 2b by recharacterizing them as Other than Serious, and reduces the penalty for Citation number 1, Item 2, from $2125.00 to -0-; the Secretary hereby modifies Other than Serious Citation number 2, Items 1a, 1b, and 1c, by grouping them as instances of a single Item, to wit Item 1; and withdraws Other than Serious Citation number 2, Item 2, which Respondent agrees to abate. The Citations and notification of proposed penalties are deemed amended accordingly.

CITATION NO. 1, EXCEPT ITEM 1, AND CITATION NO. 2
(HEALTH) IN DOCKET NO. 02-0429 Insp. No. 304974041

Item	Proposed Penalties	Amended Penalties	Other Amendments
Serious Cit 1, Item 2a and 2b	$2125	-0-	Items 2a and 2b are recharacterized as Other than Serious
Other than Serious Cit 2, Items 1a, 1b, and 1c	-0-	-0-	Items 1a, 1b, and 1c are grouped as instances of a single item, Item 1
Other than Serious Cit 2, Item 2	-0-	-0-	Respondent agrees to abate. Item 2 is withdrawn

The Citations and notifications of proposed penalties are deemed amended accordingly.
 

Citation 1, Item 1, addresses the location of sharps containers for disposable razors, used by employees to shave residents in shower rooms and in residents' bathrooms, as close as is feasible to the immediate area where the sharps are used, in accordance with 29 CFR § 1910.1030(d)(4)(iii)(A)(2)(i). The Secretary hereby amends Citation 1, Item 1 by recharacterizing it as Other than Serious and incorporating by reference the other covered facilities set forth in Appendix A, which is attached to and made a part of this Settlement Agreement. The penalty for the amended citation shall remain unchanged at $2,125. The Respondent shall abate the amended citation by installing sharps containers for disposable razors used by employees to shave residents, at a height of up to six inches (6") above the CDC recommended height for the top of the container of fifty-two to fifty-six inches (52"-56") from the floor, in the shower rooms and the residents' bathrooms in the cited facility and in the other covered worksites set forth in Appendix A. At facilities where a sharps container is presently already installed in a resident room, within the above height parameters, no additional sharps container need be installed in the bathroom for that resident room, as otherwise required by this Agreement. The corporate-wide provisions of this Settlement Agreement apply solely to Citation 1, Item 1 in Docket No. 02-0249 (Health). Respondent will voluntarily address this issue pursuant to this Agreement in state plan states. The Secretary encourages those states with an OSHA State Plan to honor or agree to the terms of the corporate-wide provisions of this Settlement Agreement.

CITATION NO. 1, ITEM 1 (HEALTH) IN DOCKET NO. 02-0429 - Insp. No. 304974041 CORPORATE-WIDE AGREEMENT

Item	Proposed Penalty	Amended Penalty	Other Amendments
Serious Item 1	$2125	No change	Item 1 is amended to include the location of sharps containers in each of the establishments listed in App. A, and is recharacterized as Other than Serious.

Citation 1, Item 1, is deemed amended accordingly.
 

Respondent hereby withdraws its notices of contest to each Citation and the proposed penalties, as amended herein. In support of its withdrawal, Respondent states:

A. That the violations described in Serious Citation number 1, Item 1, amended, above, to Other than Serious, and Other than Serious Citation number 2, Item 1, in Docket No. 02-0408 (Safety), and in Serious Citation number 1, Items 2a and 2b, amended, above, to Other than Serious, and Other than Serious Citation number 2, Items 1a, 1b and 1c, grouped, above, as instances of a single item, to wit, Item 1; and Other than Serious Item 2, withdrawn, above, in Docket No. 02-0429 (Health), have been abated. Respondent agrees that the date of final execution of this Agreement shall be the final abatement date for said items. Respondent further agrees that it shall comply with all applicable abatement verification provisions of 29 CFR § 1903.19, including but not limited to, all certification, documentation, and posting requirements. Respondent shall certify abatement of Serious Citation number 1, Item 1, amended herein to Other than Serious, and Other than Serious Citation number 2, Item 1, in Docket No. 02-0408 (Safety), and of Serious Citation number 1, Items 2a and 2b, amended herein to Other than Serious, and Other than Serious Citation number 2, Items 1a, 1b, and 1c, grouped as a single item, Item 1, and Item 2, withdrawn, in Docket No. 02-0429 (Health), within ten (10) calendar days after the abatement date by mailing a letter to Herb Gibson, Area Director, Denver, Colorado, Area Office of the Occupational Safety and Health Administration, stating as to each that abatement has been completed, the date and method of abatement, and that affected employees and their representatives have been informed of the abatement. Any abatement documentation required pursuant to 29 CFR § 1903.19 shall be submitted along with the abatement certification.

B. That abatement of the violations described in Serious Citation 1, Item 1, amended to Other than Serious herein, in Docket No. 02-0429 (Health) shall be completed as set out in paragraph III above, in each of Respondent's covered work sites listed in Appendix A, on or before one-hundred-twenty (120) days following the date of final execution of this Agreement, which shall be the final abatement date for said Item. Respondent further agrees that it shall comply with all applicable abatement verification provisions of 29 CFR § 1903.19, including but not limited to, all certification, documentation, and posting requirements. Respondent shall certify abatement of Serious Citation number 1, Item 1, amended to Other than Serious herein, in Docket No. 02-0429 (Health), as to each covered work site, within ten (10) calendar days after the abatement date by mailing a letter to Herb Gibson, Area Director, Denver, Colorado, Area Office of the Occupational Safety and Health Administration, stating that abatement has been completed, the date and method of abatement, and that affected employees and their representatives at each work site have been informed of the abatement. Any abatement documentation required pursuant to 29 § CFR 1903.19 shall be submitted along with the abatement certification.

C. That affected employees are not represented by an authorized employee representative at certain of the covered worksites referenced in Appendix A, and, as to each of these, therefore, a copy of this Stipulation and Settlement Agreement shall be posted at Respondent's said workplaces on February _14th__, 2003. Respondent represents that at each covered work site there is a bulletin board or notice board where employee information is routinely posted, and that said location is the place in each covered work site that a copy of this Agreement is being posted, where it may be viewed by its employees. The Agreement shall remain posted at each work site until it becomes a final order of the Commission.

D. That, as to each covered worksite, as to which Serious Citation 1, Item 1, amended herein to Other than Serious, in Docket No. 02-0429 (Health) applies, at which affected employees are represented by an authorized employee representative, authorized employee representatives are identified in Appendix B hereto, together with verification that a copy of this Stipulation and Settlement Agreement, insofar as it addresses Serious Citation 1, Item 1, amended herein to Other than Serious, in Docket No. 02-0429 (Health), has been served on each said authorized employee representative, stating the name of the representative on whom service was made, the location where service was made, the manner in which such service was made, whether by prepaid, first class mail or personal delivery, and the date on which such service was made; and that the same shall also be posted at each said workplace of Respondent on February _14th__, 2003, where it may be viewed by its employees. Respondent represents that at each covered work site there is a bulletin- or notice board where employee information is routinely posted, and that said location is the place in each covered work site that a copy of this Agreement is being posted, where it may be viewed by its employees. The Agreement shall remain posted at each work site until it becomes a final order of the Commission.
,br> E. That the parties agree that this Stipulation and Settlement Agreement in its entirety need be posted only at Respondent's work site at 2800 Palo Parkway, Boulder, Colorado.

F. That it has tendered payment of the total penalty of TWO THOUSAND SIX HUNDRED SIXTY-FIVE DOLLARS ($2,665.00) to the Secretary's representative.
 

Provided that Respondent implements this Agreement in good faith, the Secretary agrees that OSHA shall not conduct programmed inspections of Respondent with regard to the particular conditions covered by this Agreement, as described in Section III above, at its covered worksites during the time for abatement set out in § IV.B. of this Agreement. OSHA retains the right to conduct all other types of inspections of Respondent permitted under the Act, and nothing in this Agreement shall be construed to alter or affect Respondent's rights and obligations under the Act with regard to such inspections.
 

If any authorized employee representative has any concerns or questions regarding Respondent's compliance with this Agreement, he or she may raise those concerns in writing and provide them to Respondent and to the OSHA National Office, (to Director, Directorate of Enforcement Programs, U.S. Department of Labor - OSHA, 200 Constitution Ave., N.W., Room N-3119, Washington, D.C. 20210) for review and response.
 

Section V. shall be in effect for the abatement period set out in § IV.B., above, one hundred twenty (120) days from the date of the parties' complete execution of this Agreement.
 

Except for proceedings under the Act, none of the foregoing agreements, statements, findings, and actions taken by the Respondent shall be deemed an admission by the Respondent of a violation of the Act or an admission of the allegations contained within the citations or notifications of penalties in this matter. The parties understand and acknowledge that the legal standards and procedures involved in these administrative proceedings are not necessarily the same as those involved in civil litigation outside of the Act, agree that the agreements, statements, findings, and actions taken herein are made solely for the purpose of compromising and settling this administrative matter amicably to avoid protracted and expensive litigation, and are not intended to be used in any judicial or administrative forum for any other purpose whatsoever, except for proceedings under the Act. It is specifically understood by Respondent and the Secretary that the compromise and settlement of these administrative proceedings is not intended to constitute an admission or finding of civil liability or responsibility of any kind in any civil personal injury or wrongful death action; and such civil liability or responsibility is specifically denied by the Respondent.
 

The parties agree that based on the foregoing representations of Respondent, an order may be entered of record showing that Respondent has withdrawn its notices of contest and entering the citations and notifications of proposed penalties, as amended herein, as final orders of the Commission.
 

Each party hereby agrees to bear her or its own fees and other expenses incurred by such party in connection with any stage of this proceeding, including but not limited to, attorney's fees, costs, and other expenses. The parties agree that Respondent is ineligible under the Equal Access to Justice Act, 5 U.S.C. § 504, as amended.

Dated this __6th___ day of February, 2003.
 

	Howard Radzely Acting Solicitor of Labor
REED SMITH LLP	Michael A. Stabler Regional Solicitor
By____________________ Harold J. Engel Attorney 1301 K Street NW Suite 1100- East Tower Washington, DC 20005-3373 (202) 414-9200 (202) 414-9299	______________________ Kathleen Butterfield Attorney 1210 City Center Square 1100 Main Street Kansas City, MO 64105-5148 (816) 426-6441 (816) 426-2500 (fax)
Attorneys for Respondent	Attorneys for Secretary of Labor, U.S. Department of Labor

 

The attached Stipulation and Settlement Agreement has been entered into by the parties hereto, and is being submitted to the Occupational Safety and Health Review Commission for entry as a final order. If you have any comments on the Stipulation and Settlement Agreement, you may submit them within ten days of service or posting of the stipulation to:

Judge Robert A. Yetman
Occupational Safety and Health
Review Commission
Colonnade Building, Room 250
1244 N. Speer Boulevard
Denver, Colorado 80204-3582

A copy of such comments should also be sent to:

Michael A. Stabler
Regional Solicitor
U.S. Department of Labor
1210 City Center Square
1100 Main Street
Kansas City, Missouri 64105-5148

Served and/or posted this _14th_ day of February, 2003.

The foregoing Stipulation and Settlement Agreement was provided to each of the authorized employee representatives listed in Appendix B hereto, via facsimile, on January 24, 2003, or, as to two (2) for whom facsimile numbers could not be obtained, via overnight mail, received January 27, 2003, with delivery as to each method verified. The Agreement was sent together with a cover letter explaining the corporate-wide aspect of the Agreement, and requesting comments, if any, of each authorized employee representative for each represented site, regarding the proposed Agreement and/or the time for abatement. The undersigned attorney for the Secretary requested that she receive comments prior to January 31, 2003, by telephone or facsimile. No comments have been received.
 

____________________ Kathleen Butterfield Attorney

Date:  __2/3/03_


   

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Complainant,               v. MANOR CARE HEALTH SERVICES, and its Successors, Respondent.

OSHRC Docket No. 02-0408 and 02-0429 (CONSOLIDATED)

OSHA INSPECTION NOS. 3O497404 (Health) and 304974090(Safety)
 

The parties have filed a stipulation and settlement agreement in the above-captioned matter. The content of that stipulation and settlement agreement is incorporated by reference in this order.

The stipulation and settlement agreement is hereby approved and shall be deemed an order of the Commission.

It is SO ORDERED.
 

__________________________ Robert A. Yetman Judge, OSHRC

Dated:



See Attachment [PDF]
 

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