__________________________________
ELIZABETH DOLE, Secretary of )
Labor, United States Department )
of Labor, )
)
Complainant, )
) OSHRC Docket
v. ) No. 89-2370
)
REPCON INDUSTRIAL SERVICES, INC., )
AND ITS SUCCESSORS, )
)
Respondents. )
__________________________________)
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. Complainant moves to amend Items 1, 2, 3, and 4 of Citation No. 1 and Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 of Citation No. 2, wherein total penalties of $134,600 are proposed, to propose total penalties of $67,300
4. Complainant moves to amend Items 1, 2, 3, and 4 of Citation No. 1 and Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 of Citation No. 2 and Item 1 of Citation No. 3 wherein abatement dates of July 17, 1989 are fixed, to fix abatement dates of November 1, 1990.
5. Complainant agrees to vacate the following Items:
Violation/
Citation 29 CFR Abatement
Number Item Standard Penalty Date
2 2 1904.2(a) $4000.00 7/17/89
2 8 1904.2(a) $4000.00 7/17/89
2 9 1904.2(a) $4000.00 7/17/89
2 11 1904.2(a) $4000.00 7/17/89
2 14 1904.2(a) $4000.00 7/17/89
2 16 1904.2(a) $4000.00 7/17/89
2 23 1904.2(a) $4000.00 7/17/89
2 24 1904.2(a) $4000.00 7/17/89
2 27 1904.2(a) $4000.00 7/17/89
2 29 1904.2(a) $4000.00 7/17/89
2 31 1904.2(a) $4000.00 7/17/89
6. Upon the granting of Complainant's motions, Respondent moves to withdraw its notice of contest.
7. Respondent has tendered payment of the proposed penalties, as amended.
8. Respondent states that the conditions described in Items 2, 3, and 4 of Citation No. 1, and Item 1 of Citation No. 3 will be corrected by November 1, 1990, and Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 of Citation No. 2, and Item 1 of Citation No. 1 will be corrected by November 1, 1990, and that new forms OSHA No. 200 will be prepared and executed to conform to the citations. Respondent's original forms OSHA No. 200 for years 1987 and 1988 which are the subject of this case will be maintained by Respondent without deletion, modification, or alteration.
9. Without admitting any violation of the Occupational Safety and Health Act or any regulation or standard issued pursuant thereto, Respondent hereby withdraws its notice of contest to Citation Nos. 1, 2, and 3 as amended herein, and agrees that the amended Citations and this Settlement Agreement will constitute a final order of the Commission. Respondent's consent to entry of a final order of the Commission pursuant to this Settlement Agreement shall not constitute an admission by Respondent of (i) any violation of the Act, (ii) the alleged facts underlying the Citations or amended Citations or any items therein, or (iii) any wrongdoing, all of which Respondent expressly denies. The parties agree that the Respondent enters into this Settlement Agreement in compromise and settlement of a disputed claim, for the sole purpose of avoiding further trouble, litigation, and expense; and the parties intend that neither this instrument nor any part of it may be construed, used, or admitted into evidence in any judicial, administrative, or arbitral proceeding, whether civil or criminal, as an admission of any kind by Respondent, except for future proceedings brought under the Occupational Safety and Health Act.
10. Respondent promises to permit Complainant access to the workplace at issue herein subsequent to the dates fixed for abatement for the specific and limited purpose of determining if the conditions described in the citations at issue herein have been corrected, and agrees to provide access to all records needed by Complainant to determine if the conditions have been corrected.
11. Respondent promises to continue its good-faith efforts to comply with the Occupational Safety and Health Act.
12. Respondent certifies that the affected employees in the above styled case are not represented by an authorized employee representative.
13. 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 8th day of August, 1990.
14. Respondent agrees to comply fully with the Bureau of Labor Statistic's Recordkeeping Guidelines for Occupational Injuries and Illnesses, as amended, and the Code of Federal Regulations, 29 CFR, Part 1904, as amended.
15. Respondent agrees to submit its form OSHA No. 200 for the years 1990, 1991, 1992, 1993 and 1994 to the Area Director of the Occupational Safety and Health Administration having authority over the Corpus Christi, Texas area. Respondent shall submit copies of its proposed form OSHA No. 200 by January 15 following each of the respective years and provide any further documentation in support of the entries on the form OSHA No. 200 within five (5) working days of the Occupational Safety and Health Administration's request. Respondent represents that it has ceased to employ employees at this time.
16. Complainant, through the United States Department of Labor, agrees to provide a written opinion to Respondent regarding Respondent's OSHA recordkeeping practices only with regard to specific issues raised by Respondent. Respondent agrees to set forth the facts fully and in writing in the form of a written request to Complainant through the United States Department of Labor for a written opinion.
Respondent agrees to abide fully by the written opinion rendered by the Complainant through the United States Department of Labor with regard to the specific issues raised by Respondent. Respondent further agrees to amend its 1989 form OSHA No. 200 to conform with any written opinion rendered by the Complainant through the United States Department of Labor with regard to the specific issues raised by Respondent, with the Recordkeeping Guidelines for Occupational Injuries and Illnesses, and 29 CFR, Part 1904. If Respondent amends its 1989 form OSHA No. 200, it will maintain its original form OSHA No. 200 which was due to be posted February 1, 1990 in a way which will clearly show the original entries as well as the amended entries. Complainant agrees to allow Respondent until November 1, 1990 to amend its 1989 form OSHA No. 200.
17. Each party hereby agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.
ROBERT P. DAVIS
Solicitor of Labor
JAMES E. WHITE
Regional Solicitor
REPCON INDUSTRIAL SERVICES, JACK F. OSTRANDER
INC. Counsel for Safety and Health
By: By:
____________________________ _____________________________
SAMUEL P. PARKER ANTHONY G. PARHAM
President Attorney
P. O. Box 9316 U. S. Department of Labor
Corpus Christi, Texas 78469 Office of the Solicitor
525 Griffin Street, Suite 501
Dallas, Texas 75202
Telephone: 214/767-4902
Attorneys for Complainant
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 HONORABLE DEE C. BLYTHE, ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 1100 COMMERCE STREET, ROOM 7B11, DALLAS, TEXAS 75242, WITH COPIES TO COMPLAINANT AND RESPONDENT.