OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

October 24, 2002

Mr. Douglas Dority
International President
United Food and Commercial Workers
International Union, AFL-CIO
1775 K Street, NW
Washington, D.C. 20006-1598

Dear Mr. Dority:

Thank you for your inquiry into the settlement relating to the Occupational Safety and Health Administration's (OSHA's) inspection of an incident that occurred on December 23, 2001 when the release of 394 pounds of ammonia resulted in the death of Mr. Timothy Hubacher and serious injury to Mr. Thomas McMillan.

Given OSHA's mission of providing safer workplaces, we feel each worker's death as a personal loss and tragedy. An OSHA inspection and its findings can in no way compensate for the loss of an individual's life or well-being, but our efforts and an eventual settlement can go a long way toward preventing future incidents.

The intent of all settlement agreements, both formal and informal, is to resolve inspection findings in an effective and efficient manner. OSHA's settlement agreements typically result in significant improvements in safety and health conditions for workers. These improvements are not only in terms of prompt corrective action; many times the employer agrees to additional items beyond the requirements of the cited standards.

Settlement agreements also enable OSHA to obtain the employer's formal recognition and acceptance of the cited hazards, and the obligation to promptly abate those hazards throughout the workplace. During the past several years, OSHA has made increasing use of settlement agreements to leverage its limited resources, avoid costly and protracted litigation, and ensure early, uniform and lasting abatement of hazards and greater protection of workers.

With specific reference to the Oscar Meyer inspections, the settlement agreements afforded the remaining 1650 employees at the facility prompt abatement of the cited items. The employer also agreed to develop procedures and training programs above and beyond the requirements of existing OSHA regulations.

The information gathered through the inspections was communicated corporation-wide to the approximately 18,000 workers employed at additional Kraft Foods locations across the country. In addition, the employer agreed to pay the entire penalty of $211,000.

The issuance of "unclassified" citations is a settlement tool used to achieve prompt abatement and avoid lengthy litigation. Nationwide since 1989, the Agency has successfully resolved several hundred accident investigations through the use of "unclassified" citations. In this way we can secure both the deterrent effect of appropriate penalties and speedy abatement.

Mr. Dority, I am interested in improving the health and safety of all the workers at Kraft Foods and I firmly believe this settlement will help achieve that. I hope that this adequately addresses your concerns regarding this matter. Thank you for your interest in occupational safety and health.

Sincerely,

John L. Henshaw
Assistant Secretary

July 11, 2002

The Honorable Elaine Chao
Secretary of Labor
Department of Labor
200 Constitution Avenue, NW
Washington DC 20210

Dear Secretary Chao:

On December 23, 2001, a tragic accident occurred at the Oscar Meyer Division plant of Kraft Foods North America, Inc., in Madison, Wisconsin. A United Food and Commercial Workers Local No. 538 member, Tim Hubacher, was killed, and a second member, Tom McMillan, was seriously injured. Mr. McMillan still has not recovered from his injuries and has not yet returned to work. The tragedy occurred, according to the Occupational Safety and Health Administration, "after the release of 394 pounds of ammonia."

Tim Hubacher was an employee of Oscar Meyer for 26 years and was an experienced maintenance worker. Tom McMillan is an experienced mechanic with the company. Investigations by the Madison Area OSHA Office resulted in an informal settlement agreement, dated June 20, 2002, of all citations and $211,000 in penalties. Some of these violations were directly related to the accident that took the life of Mr. Hubacher and seriously injured Mr. McMillan.

The UFCW is outraged by the actions of OSHA in this case. Negotiation of a precitation settlement, given the gravity of this case, raises a huge concern with this Union. OSHA has acted in bad faith by failing to cite the company on the evidence uncovered in the course of the fatality inspection. We are well aware of informal settlement agreements negotiated with companies, and are pleased to see that Kraft Foods has agreed to immediately correct the hazards that led to the fatality. However, in our experience, these types of settlements have not involved fatality cases. In addition, a willful citation directly related to the fatality was negotiated to "unclassified."

We therefore request the following:

 

 

  • A formal review of this case by your office, in conjunction with your solicitor.
  • A policy by your Department that Informal Settlement Agreements are not negotiated in fatality cases.
  • Citations must be classified in fatality cases where hazards were clearly identified.

Thank you for your attention to this matter.

Sincerely

Douglas H. Dority
International President