UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
| SECRETARY OF LABOR, United States Department of Labor, |
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Docket No. 11-2727 Inspection No. 315139758 |
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Complainant, v. |
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| MONRO MUFFLER BRAKE, INCORPORATED, |
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| Respondent. |
SETTLEMENT AGREEMENT
Complainant and Respondent hereby stipulate and agree that:
(1) On September 12, 2011, Respondent was cited for alleged violations of the Occupational Safety and Health Act of 1970, 29 USC 651, et seq. (the "Act") and was issued a Notification of Proposed Penalty in the total amount of Nineteen Thousand and 00/100 Dollars ($19,000.00).
(2) Respondent, an employer within the meaning of Section 3(5) of the Act, duly filed with a representative of the Secretary of Labor a notice of intent to contest the Citation and Notification of Proposed Penalty. This notice was duly transmitted to the Occupational Safety and Health Review Commission (the "Review Commission") and it is agreed that jurisdiction of this proceeding is conferred upon the Review Commission by Section 10(c) of the Act.
(3) The Secretary of Labor has filed a Complaint therein stating with particularity the violations alleged, the penalty proposed and the issues in contest before the Review Commission.
(4) Complainant and Respondent have agreed to resolve this matter, without the necessity of further pleadings, as follows:
(A) Citation 1, Item 1, a "Serious" violation under Sections 5(a)(1) and 17(b) of the Act, is hereby affirmed as cited in the Citation and Notification of Penalty.
(B) Citation 1, Items 2 and 3, both "Serious" violations under Sections 5(a)(2) and 17(b) of the Act, are hereby affirmed as cited in the Citation and Notification of Penalty.
(C) Respondent shall pay a penalty to Complainant in the aggregate amount of Twelve Thousand Five Hundred and 00/100 Dollars ($12,500.00) in accordance with Section 7 below.
(D) (i) This Agreement shall become effective on the date that it becomes a Final Order of the Review Commission (the "Effective Date"). Within 60 days after the Effective Date, Respondent shall develop and implement an inspection and maintenance program for all automotive lifts at all of its Covered Worksites (as defined in Section 4(E) below) (each, an "Automotive Lift") in accordance with this Section 4(D) (the "Inspection and Maintenance Program"). The Inspection and Maintenance Program shall be designed and implemented in a manner that complies with all applicable requirements of the ANSI/ALI ALOIM: 2008 Standard for Automotive Lifts, as may be amended from time-to-time (the "ANSI/ALI ALOIM Standard"), including, without limitation, ANSI/ALI ALOIM Standard Sections 5 and 6.
(ii) The Inspection and Maintenance Program shall provide for periodic inspections of all Automotive Lifts by individuals (whether employees or outside contractors) who have at least the qualifications of a "qualified inspector" as set forth in Sections 5.2 and 5.3 of the ANSI/ALI ALOIM Standard (each, a "Periodic Inspection"). Respondent shall perform an initial Periodic Inspection of all Automotive Lifts within 180 days after the Effective Date of this Agreement. Thereafter, Respondent shall perform a Periodic Inspection of every Automotive Lift no less frequently than annually in accordance with Sections 5.5 and 5.6 of the ANSI/ALI ALOIM Standard. Respondent shall record and maintain documentation of each Periodic Inspection in accordance with Section 5.4 of the ANSI/ALI ALOIM Standard.
(iii) As part of the Inspection and Maintenance Program, Respondent shall develop and implement procedures to remedy all Automotive Lift maintenance and/or repair problems that may affect the safe condition and/or operation of such lifts (a "Maintenance/Repair Problem"). In furtherance of the foregoing, Respondent shall, as informed by Section 4.5 of the ANSI/ALI ALOIM Standard: require its Automotive Lift Operators (as defined below) to report all conditions perceived to be Maintenance/Repair Problems to facility management; and evaluate and remedy, as soon as practicable, all actual Maintenance/Repair Problems so identified by its Automotive Lift Operators. Respondent shall remedy all other known Maintenance/Repair Problems (e.g. those discovered through a Periodic Inspection) as soon as practicable to prevent employee exposure to any associated hazards, which may include, as necessary, removal of the lift from service until the hazard is eliminated.
(iv) Respondent shall provide mandatory operator training ("Operator Training") to all employees who operate Automotive Lifts at its Covered Worksites (each, an "Automotive Lift Operator"). The Operator Training shall include, at a minimum, training on the safe use and operation of automotive lifts in accordance with Section 4.2.1 of the ANSI/ALI ALOIM Standard. All Automotive Lift Operators currently employed by Respondent shall complete the aforementioned Operator Training within 150 days after the Effective Date of this Agreement. Thereafter, Respondent shall provide Operator Training to all newly hired Automotive Lift Operators at the inception of their employment with Respondent and refresher Operator Training to all Automotive Lift Operators no less frequently than annually. Respondent shall record and maintain documentation of all Operator Training in accordance with Section 4.3 of the ANSI/ALI ALOIM Standard.
(v) Within 180 days after the Effective Date of this Agreement (the "Reporting Date"), and thereafter on the first and second anniversary of the Reporting Date, Respondent shall submit a written compliance report to the Director of Enforcement Programs detailing Respondent's status of compliance with the terms of this Section 4(D) (each, a "Compliance Report"). Each Compliance Report shall include (a) a written certification by Respondent that it is then in compliance with all of the terms of Section 4(D) of this Agreement, or (b) if Respondent is not then in full compliance, a written statement by Respondent describing all areas of non-compliance, the remedial actions to be taken by Respondent at each affected worksite and the date by which Respondent certifies it shall achieve full compliance at each such location. Nothing in this Section 4(D)(v) shall be construed as a waiver or limitation of Complainant's ability to monitor and/or enforce Respondent's compliance with the terms of this Agreement. For the purposes of this Agreement, "Director of Enforcement Programs" shall mean the Director of the Directorate of Enforcement Programs at OSHA's National Office, located at 200 Constitution Avenue N.W., Room N3119, Washington D.C. 20001.(E) The parties stipulate and agree that the terms of this Agreement are intended to apply to all of Respondent's worksites within federal OSHA jurisdictions (the "Covered Worksites"). The parties to this Agreement recognize that some of Respondent's worksites are located in states that have assumed authority for the enforcement of OSHA standards pursuant to Section 18 of the Act ("State Plan Worksites"). These state plan states are encouraged to honor or agree to the terms of this Agreement. For ease of reference, the parties have attached a current list of all Covered Worksites as Exhibit A hereto and a current list of all State Plan Worksites as Exhibit B hereto.
(F) The Citation and Notification of Penalty is deemed amended to include any abatement measures, including agreements as to actions to be taken by the employer, which are described in this Agreement. The abatement measures described in this Agreement (including, without limitation, this Section 4) are hereby incorporated as terms and abatement conditions of this Agreement. Complainant shall have full authority to monitor Respondent's compliance with the terms and abatement conditions of this Agreement. Respondent agrees that it shall permit Complainant to enter onto Respondent's worksites, without the need for a warrant, for purposes related to this Agreement.
(5) In view of the aforesaid, Respondent hereby withdraws its Notice of Contest and the parties agree that the citation and proposed penalties and the abatement measures and dates as amended by this Agreement, shall be affirmed and become the final, enforceable Order of the Review Commission.
(6) Respondent certifies that the violations alleged in Citation 1, Items 1, 2 and 3 have been abated at the inspection site referenced in the Citation and Notification of Penalty (the "Inspection Site"). For each item alleged in Citation 1, Items 1, 2 and 3, Respondent shall submit to the Area Director an Abatement Certification with respect to the Inspection Site as required by 29 CFR 1903.19(c). Each such certification shall be submitted within thirty (30) days after the date of this Agreement.
(7) Respondent further certifies that the total penalty of Twelve Thousand Five Hundred and 00/100 Dollars ($12,500.00), as described in Section 4(C) above, has been paid to Complainant.
(8) Respondent certifies that there are no authorized employee representatives at Respondent's workplaces. Respondent further certifies that it served this Agreement on its employees on August 23SMM ,2012, by posting the Agreement at the worksite subject to the OSHA inspection, in a place where the Citation is required to be posted, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. Respondent further agrees that it shall post an executive summary of this Agreement at all of its Covered Worksites within thirty (30) days after the date of this Agreement.
(9) The term of this Agreement shall terminate on the date that is two (2) years after the Effective Date (the "Termination Date") unless extended in accordance with this Section 9. Before the Termination Date of this Agreement, either party may provide written notice to the other that it wishes to extend the Agreement for an additional term. Such notice shall be provided no later than the date that is forty-five (45) days prior to the Termination Date. Upon providing such notice, the term of the Agreement shall automatically extend until the date that is forty-five (45) days after the Termination Date, to allow the Parties an opportunity to discuss continuation of the Agreement for an additional term. The parties agree to engage in such discussions in good faith in an effort to reach a mutually acceptable agreement to continue the term of this Agreement.
(10) The parties stipulate and agree that Respondent reserves its right to petition OSHA for modification of abatement dates, pursuant to 29 C.F.R. §1903.14a, if Respondent is unable to meet any abatement deadlines set forth in Section 4(D) above, because of factors beyond Respondent's reasonable control and despite Respondent's good faith effort to comply with the required abatement measures. OSHA agrees that any such Petition for Modification of Abatement Date ("PMA") submitted by Respondent to the Directorate of Enforcement Programs in OSHA's National Office, and any extension of time approved by OSHA in response to such a PMA, need not be made specific to a single worksite, but may be made to apply to any or all of the Covered Worksites. The parties further stipulate and agree that any extension of time approved by OSHA's National Office in response to a PMA submitted by Respondent during the term of this Agreement shall be automatically incorporated into this Agreement and binding upon the parties.
(11) Any notice provided by a party pursuant to this Agreement shall be in writing and delivered by certified mail to the addresses below
| (A) | If to Complainant: Director Enforcement Programs U.S. Department of Labor Occupational Safety and Health Administration 200 Constitution Avenue N.W., Room N3119, Washington D.C. 20001 |
| (B) | If to Respondent: Lawrence J. Nagle Director, Corporate Risk Management Monro Muffler Brake, Inc. 200 Holleder Parkway Rochester, NY 04615-3808 |
Any such notice shall be deemed provided on the date that the notice is deposited in the United States mail. Each party shall immediately notify the other party of any change in the name or address to whom notice is to be sent pursuant to this Section 11.
(12) Each party hereby agrees to bear its owii fees ai id other expenses incurred by such party in connection with any stage of these proceedings.
(13) Respondent hereby agrees to comply with the / ct in all respects in the future.
(14) None of the foregoing agreements, statements stipulations, and actions taken by Respondent shall be deemed an admission by Respondent of the allegations contained within the Citation, Notification of Penuities and the Complaint herein. The agreements, statements, s3tipulations findings and actions t3ken herein are made for the purpose of settling this matter economically and amicably and they shall not be used for an purpose, except for proceedings and matters arising under the Occupational Safety and Health Act ((29 usc 651, et seq,)
| For Respondent Monro Muffler Brake, Inc.: Name: Lawrence J. Nagle Title: Director, Corporate Risk Management Date:8/21/2012 Dion Y. Kholer Jackson Lewis LLP Attorneys for Respondent Monro Muffler Brake, Inc. Date: 8/22/2012 Post Office Address: Jackson Lewis LLP 1155 Peachtree Street N.E Suite 1000 Atlanta, Georgia 30309 TEL: (404) 586-1843 FAX: (404)525-1173 |
For Complainant: M. Patricia Smith Solicitor of Labor Michael Felson Regional Solicitor Scott Miller Trial Attorney, U.S. Department of Labor Attorneys for Complainant Date:08/22/2012 Post Office Address: U.S. Department of Labor Office of the Sollicitor JFK Federal Building Room E-375 Boston, MA 02203 TEL: (617) 565-2500 FAX: (617) 565-2142 |
EXHIBIT A
List of Covered Worksites [PDF]
EXHIBIT B
List of State Plan Worksites [PDF]