OSHA Corporate Wide Settlement Agreements
- Record Type: CWSA
- Information Date: 09/04/1991
- Company: Cargill, Inc.
|SECRETARY OF LABOR,||)|
|United States Department of Labor||)|
|)||OSHRC Docket Nos.|
|v.||)||89-3426 (Buena Vista,|
|)||Georgia); and 89-3513,|
|CARGILL, INCORPORATED,||)||89-3514 (California,|
|)||Missouri); and 90-1257|
|RETAIL WHOLESALE DEPARTMENT STORE||)|
|UNION (Buena Vista, Georgia);||)|
|UNITED FOOD & COMMERCIAL WORKERS,||)|
|AND TEAMSTERS (California,||)|
Complainant, Respondent Cargill, Incorporated, and the Authorized Employee Representatives have, reached a full and complete settlement of the above-captioned matters presently pending before the Occupational Safety and Health Review Commission ("Commission"). Accordingly, the parties agree as follows)
(a) The Commission has jurisdiction of these matters pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq., hereinafter the "Act").
(b) Respondent is a Delaware corporation with a place of business in Buena Vista, Georgia ("Buena Vista"), California, Missouri ("CalMo"), and Jacksonville, Florida ("Jacksonville"). It has been at all times material to these proceedings engaged in the business of poultry processing. Respondent hereby acknowledges that it is an employer engaged in a business affecting commerce as defined by Sections 3(3) and 3(5) of the Act, 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 April 24, 1989, through approximately September 15, 1989, at Respondent's workplace in Buena Vista, citations alleging violations of the Act were issued to Respondent on October 23, 1989, pursuant to Sections 8 and 9 of the Act.
(d) As a result of an inspection conducted on June 1, 1989, through approximately October 6, 1989, at Respondent's workplace in CalMo, citations alleging violations of the Act were issued to Respondent on November 13, 1989, pursuant to Sections 8 and 9 of the Act.
(e) As a result of an inspection conducted on October 20, 1989, through approximately April 6, 1990, at Respondent's workplace in Jacksonville, a citation alleging violations of the Act was issued to Respondent on April 13, 1990, pursuant to Sections 8 and 9 of the Act.
(f) Respondent disagreed with the Buena Vista, CalMo, and Jacksonville citations and notifications of proposed penalties and filed a notice of contest in each matter. The notices of contest were duly transmitted to the Commission. The authorized employee representative at Buena Vista, the Retail, Wholesale, Department Store Union, has elected party status regarding OSHRC Docket No. 89-3426. The authorized employee representatives at CalMo, the United Food & Commercial Workers and the Teamsters, each have elected party status regarding OSHRC Docket Nos. 89-3513 and 89-3514. The authorized employee representative at Jacksonville, the Teamsters, is aware of OSHRC Docket No. 90-1257 and, with the consent of all other parties hereto, participates herein without need of electing party status.
The parties move, pursuant to Commission Rule 29 CFR ?2200.9, that these matters, OSHRC Docket Nos. 89-3426, 89-3513, 89-3514, and 90-1257, be consolidated for purposes of settlement.
(a) Complainant agrees that the respective notifications of proposed penalties are hereby amended to reflect a total penalty of Four Hundred Thousand Dollars ($400,000.00).
(b) Complainant agrees that each of the Buena Vista, CalMo, and Jacksonville citations shall be and are hereby amended to delete any and all references to the category or characterization of the alleged violations.
(c) Respondent withdraws its notices of contest to all citations and the penalties as amended according to Sections (a) and (b) above. This withdrawal, however, is made solely to facilitate the settlement of this matter. It does not qualify and is not to be interpreted as inconsistent with Section VII below. Respondent shall submit payment of the total penalty of $400,000.00 to OSHA within thirty (30) days of this Agreement becoming a final order of the Commission.
(d) The parties agree that this Agreement, including the attached Cargill, Incorporated Ergonomic and Recordkeeping Agreement ("Ergonomic and Recordkeeping Agreement") which is incorporated herein by reference, shall become a Final Order of the Commission ("Order"). Included with this Agreement is a draft Order approving this settlement. The form and content of the draft Order, this Agreement, and the Ergonomic and Recordkeeping Agreement have been negotiated by the parties. The parties hereby consent to the entry of the draft Order as the final order so that the litigation of these matters may be brought to an end.
Respondent agrees to abate the conditions noted in the citations as follows:
(a) Implement the Ergonomic and Recordkeeping Agreement, which is hereby specifically incorporated in its entirety into this Agreement.
(b) Cargill represents that many of the actions required or recommended by the citations and the Ergonomic and Recordkeeping Agreement have already been accomplished. The parties agree that such actions, if they otherwise meet the requirements of this Agreement will be considered as compliance with the relevant portions of this Agreement.
In accordance with Rules 7 and 100 of the Rules of Procedure of the Commission, Respondent shall give this Agreement to affected employees represented by an authorized employee representative by serving a copy of it on each said representative at Respondent's Buena Vista, CalMo, and Jacksonville facilities and at each facility covered by this Agreement. In accordance with Rules 7 and 100 of the Rules of Procedures of the Commission, Respondent shall give this Agreement to affected employees at the Buena Vista, CalMo, and Jacksonville facilities, if any, not represented by an authorized representative by posting it in a place suitable for review by all said employees.
It is understood and agreed by the parties that this Agreement constitutes a compromise of a disputed claim. Therefore, the parties agree as follows:
This Agreement and the Ergonomic and Recordkeeping Agreement and any statements, actions, and findings made by Respondent in connection herewith or hereafter in fulfilling its obligations hereunder or under the Ergonomic and Recordkeeping Agreement do not and shall not constitute an admission of any violation of the Act. The parties further agree that nothing contained in this Agreement or the Ergonomic and Recordkeeping Agreement shall be interpreted as an admission in any way, that Respondent has acted in a manner that is detrimental to the safety and health of its employees or that it acted with plain indifference toward the safety and health of its employees, except for further proceedings under the OSHA Act. Furthermore, regarding the citations, Respondent specifically denies any and all allegations that it violated the Act.
This Agreement and the Ergonomic and Recordkeeping Agreement shall not be construed as an admission, treated as evidence of any fact or of any violation of the Act, or used in any proceeding before any court, agency, commission, or any other body, except for further proceedings under the Act. In particulars except in further proceedings under the Act, nothing in this Agreement or the Ergonomic and Recordkeeping Agreement is to be construed as an admission by Respondent that any employee's cumulative trauma disorder ("CTD") or medical management is work-related or that CTD is a recognized hazard.
(a) The parties agree that, based on the foregoing representations and on the terms of the Ergonomic and Recordkeeping Agreement incorporated herein, the Order may be issued of record showing that Respondent has withdrawn its notices of contest and enter the citations as amended, notifications of proposed penalties as amended, and the aforesaid Ergonomic and Recordkeeping Agreement as a final Order of the Commission.
(b) Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of the proceedings.
(c) Capitalized terms not otherwise defined in the Ergonomic and Recordkeeping Agreement will have the meaning as set forth herein.
Wherefore, the parties hereto agree that under the above-noted conditions the matters before the Commission as Docket Nos. 89-3426, 89-3513, 89-3514, and 90-1257 are hereby settled this 4th day of September, 1991.
|SECRETARY OF THE UNITED STATES|
|DEPARTMENT OF LABOR|
|Its: Deputy Assistant Secretary for|
|Occupational Safety and Health|
|Deputy Solicitor of Labor|
|Kenneth A. Hellman|
|Senior Trial Attorney|
|Attorneys of the United States Department of Labor|
|James D. Bassett, President||David L. Jacobson|
|Worldwide Poultry Operations|
|Its:____________________________||Its: In-House Counsel for|
|THE UNITED FOOD AND COMMERCIAL|
|WORKERS UNION, Local 576|
|Its: Deputy Trustee|
|THE TEAMSTERS, Local 833 (California, Missouri)|
|THE RETAIL WHOLESALE DEPARTMENT|
|STORE UNION, Local 938, S.E. Counsel|
|THE TEAMSTERS, Local 512 (Jacksonville, Florida)|
I. General Recognition Language
The Poultry Products Division of Cargill, Incorporated and its successors (hereinafter the "Company") and the United States Department of Labor, Occupational Safety and Health Administration ("OSHA") acknowledge that cumulative trauma disorders ("CTD") are an occupational illness in the poultry processing industry, and other poultry industries with similar jobs.
The Company and OSHA recognize that the control of CTD is a complex issue often requiring the application of a number of different control technologies and methods. These include an ergonomically-safe design -- which includes engineering controls and administrative controls to reduce or eliminate job-related CTD stressors, e.g., force, position, repetition, vibration, and lifting; employee and supervisory training and education; early recognition of the problem; and early and proper medical diagnosis, treatment, and proper follow-up care.
The term CTD shall include the following conditions:
Cumulative trauma disorders of the upper extremities are chronic soft tissue problems of the musculoskeletal and peripheral nerve system. Examples of specific diagnoses within this class of disorders include tendinitis, tenosynovitis, synovitis, carpal tunnel syndrome, stenosing tenosynovitis of the fingers (trigger finger), epicondylitis (tennis elbow or golfer's elbow), and lower back pain syndrome.
II. Covered Facilities
This Agreement covers the facilities described in Appendix A to this Agreement ("Facilities").
III. Ergonomics Program
Elements of the Program:
A. Identification of Stressors and Control Methods at the Three Inspected Facilities (Buena Vista, CalMo, and Jacksonville)
B. Implementation of Engineering and Administrative Controls at the Three Inspected Facilities (Buena Vista, CalMo, and Jacksonville)
The parties recognize that various engineering and administrative controls can provide an effective reduction in CTD incidence. The Company shall implement the following measures at the Facilities at positions causing or likely to cause a CTD hazard.
C. Time for Implementation of Control Measures required pursuant to this Agreement at the Three Inspected Facilities (Buena Vista, CalMo, and Jacksonville):
D. Time for Implementation of Control Measures required pursuant to this Agreement at the Other Facilities Covered by this Agreement
E. Continuing Efforts During the Agreement
In accordance with the priority for controls set forth in Sections A and B above, for all Facilities covered by this agreement, the Company agrees to continue its efforts to identify jobs causing or likely to cause CTD and to identify feasible engineering and administrative controls for the life of this Agreement and to implement those controls in accordance with the terms of this Agreement.
F. Input From Employees.
For all Facilities covered by this Agreement, input from employees on the jobs being studied or evaluated, and input from safety and health committees (including union safety and health committees through union members on the local safety and health committee), ergonomic committees or similar resources shall be sought and considered in formulating, testing, evaluating, and implementing potential controls. Input from such sources shall also be sought and considered in the design and implementation of the orientation, training, and education program.
1. Consultants: The Company agrees to retain a qualified consultant(s) who will be responsible as set forth below, for performing the ergonomic analyses, in evaluating OSHA's proposed abatement methods for the cited jobs, recommending proposed abatement methods for the non-cited jobs and additional abatement methods for the cited jobs, if necessary, and otherwise assisting the Company in implementation of this Ergonomic and Recordkeeping Agreement. The Consultant shall be qualified by education, training, and expertise in engineering, ergonomics, epidemiology, and medical surveillance (hereinafter the "Consultant").
The Company shall retain a sufficient number of Consultants to satisfy the terms of the Agreement. The Consultants shall be retained for the life of this Agreement. The OSHA Area Office and the employee representative shall be notified of the names of each Consultant retained and provided with a copy of the Consultant's curriculum vitae.
2. OSHA-cited Jobs: The Company, with the assistance of the Consultant, shall give priority to the evaluation and ergonomic analysis of the jobs OSHA cited as presenting CTD hazards and, with respect to these jobs, shall give priority to evaluation of the OSHA recommendations for abatement identified in the citation. In addition, the Company may identify any additional engineering and administrative control solutions. The Company, with the assistance of the Consultant, shall test identified control methods, if necessary, and implement feasible control methods to materially reduce or eliminate ergonomic stressors that have caused or are likely to cause CTD. If OSHA's abatement recommendations prove to be insufficient to materially reduce or eliminate the ergonomic stressors that have caused or are likely to cause CTD, the Company, with the assistance of the Consultant, shall identify additional engineering and administrative control solutions. Identification and testing of control methods shall be completed within six (6) months of the execution of this Agreement. Controls shall be implemented in accordance with Section B and C below.
3. Non-OSHA-cited Jobs: For all other production jobs, an on-site ergonomic analysis at the Facilities of the processes which are causing or are likely to cause CTDs shall be conducted by the Company, with the assistance of the Consultant, in order to identify engineering and administrative control solutions. This analysis shall include: (1) evaluation of processes with regard to existing and new work positions, practices, tools, gloves, and equipment to identify potential stressors (e.g., repetition, force, vibration, posture, and lifting); (2) identification of feasible control strategies which will eliminate or materially reduce these stressors; and (3) identification of alternate duty jobs for purposes of medical management of employees. This analysis shall also consist of an evaluation of the OSHA 200 logs, 101 forms, medical records, and other relevant information, including written evaluation forms designed by the Consultant to determine whether employees are experiencing CTD-related symptoms (see Section V.A.). The Company, with the assistance of the Consultant, shall also obtain and consider input from employees and safety and health committees (including union safety and health committees through union members on the local safety and health committee).
The Company, with the assistance of the Consultant, shall test identified control methods, if necessary, and implement feasible control methods to materially reduce or eliminate ergonomic stressors that have caused or are likely to cause CTD. Identification and testing the control methods on non-cited jobs shall be completed within twelve (12) months of the execution of this Agreement by all parties hereto. Controls shall be implemented in accordance with Section B and C below.
1. Engineering Controls: The Company shall consider all engineering controls, including the following and implement those determined feasible:
2. Administrative Controls:
When engineering changes prove to be insufficient to materially reduce or eliminate the ergonomic stressors that have caused or are likely to cause CTD, administrative controls, including the reduction of the amount of repetitive motion work per employee per shift, shall be tested, if necessary, and implemented where feasible.
a. Reduction of extreme postures shall be achieved through such means as re-orienting the knife, cutting implement, or tool handle, providing adjustable fixtures so, that the position of the poultry or other product can be easily manipulated, or by providing work stations and delivery bins that accommodate the heights and reach limitations of various sized workers.
b. Reduction of excessive force shall be achieved by such means as automating aspects of the process, use of mechanical devices which aid in removing bones or separating poultry from bones, use of power tools, maintaining sharp cutting edges on knives and other cutting implements such as scissors, and implementation of adjustable fixtures which allow cuts and movements to be made in mechanically advantageous postures (e.g., close to the body).
a. The principles of job rotation and job enlargement (i.e., varying employee's tasks) may be utilized to alleviate physical fatigue and stress of a particular set of muscles/tendon/nerve groups. Prior to rotation, the physical procedures used in the performance of each job, such as lifting requirements, postures, hand grips, and frequency of repetitive motion, shall be analyzed to assure similar physical demands are not made of rotated employees. Caution shall be used in deciding which jobs are used because different jobs may appear to have different stressors, but actually pose the same physical demands as the previous job. Employees shall receive training on all jobs to which they may be assigned both before assignment and as part of on-the-job training. The Company, with the assistance of the Consultant, agrees to monitor rotated employees to assure that no employee experiences an increased number of CTD symptoms.
b. In those jobs determined by OSHA or the Consultant to present a CTD hazard, new or reassigned employees shall be given the opportunity to condition muscle/tendon/nerve groups. This could be accomplished by a gradual assumption of duties, the use of a trainer, or varying tasks performed by the employees until such time as they can achieve full rate of production.
c. If necessary, rest pauses shall be utilized to relieve fatigued muscle/tension/nerve groups.
1. The Company agrees to implement feasible engineering controls as soon as practicable after they are identified. For the OSHA cited jobs, feasible engineering controls required pursuant to this Agreement shall be implemented within twelve (12) months of execution of this Agreement by all parties hereto. For the non-OSHA cited jobs, feasible engineering controls required pursuant to this Agreement shall be implemented within eighteen (18) months of execution of this Agreement by all parties hereto.
2. The Company agrees to implement feasible administrative controls required pursuant to this Agreement. For the OSHA cited jobs, feasible administrative controls required pursuant to this Agreement shall be implemented within twelve (12) months of execution of this Agreement by all parties hereto. For the non-OSHA cited jobs, feasible administrative controls required pursuant to this Agreement shall be implemented within eighteen (18) months of execution of this Agreement by all parties hereto.
1. To the extent that other Company Facilities have the same or similar jobs as those Facilities covered above, the Company agrees to implement feasible engineering and administrative controls required pursuant to this Agreement as they are identified as a result of its efforts under Sections A and B at each of the other Facilities covered by this Agreement.
2. To the extent that these Facilities have jobs different from those addressed by Sections A-B, the Company shall conduct an ergonomic analysis of these jobs and evaluate, test, if necessary, and implement engineering and administrative controls to materially reduce or eliminate ergonomic stressors. This effort shall be implemented in the manner provided by Sections A and B above. The Company will implement all feasible engineering and administrative controls required pursuant to this Agreement at these Facilities within twenty-four (24) months of execution of this Agreement by all parties hereto.
IV. Orientation, Education, and Training
This section applies to all Facilities covered by this Agreement.
The Company, with the assistance of the Consultant, shall develop and implement a formal orientation, education, and training program to be conducted by the appropriate qualified personnel conversant with and capable of answering questions about the subject matter of their respective training presentation. The program shall consist of training sessions and specific training for jobs causing or likely to cause CTD hazards. The training components shall be presented as set forth below to all employees, supervisors, employees working at positions causing or likely to cause CTD, and medical personnel. The program shall consist of training aids, including videos, quarterly training sessions as part of safety meetings, and specific training for jobs identified as causing or likely to cause CTDs. Copies of the training program, including any video aids, shall be sent to the OSHA Office of Field Programs (OFP) in Washington.
a. Training Components
i. General - The Company shall conduct general training which shall be of at least one hour in duration and shall include training on the medical aspects of CTD, early symptoms, the importance of early reporting and treatment, movements and positions which may cause or aggravate the condition, and activities which may be utilized to prevent, control, or alleviate the problem. Adequate time shall be allotted for questions and answers.
All production employees including maintenance and engineering personnel shall receive this training within six months of execution of this Agreement by all parties hereto. New production personnel will receive this general training during their orientation.
ii. Job Specific - Training on a facility and position specific basis shall be provided concerning methods of controlling determined CTD stressors, including force, repetition, position, vibration, and lifting. Training shall include the proper use of equipment and other CTD reduction practices. For example, employees utilizing knives and other cutting implements shall receive demonstrations relating to proper care, the types of implements associated with their individual work duties, and proper sharpening of cutting implements, including knives and scissors. Employees in positions causing or likely to cause CTD shall receive training within six (6) months of execution of this Agreement by all parties hereto. Refresher training shall be provided annually thereafter.
Specific training for new or reassigned employees involves demonstrations and time to practice proper work techniques prior to their being required to work at full capacity.
iii. Supervisory - Supervisors shall receive the same general training as all other employees. Supervisors shall also receive the job specific training for jobs identified as causing or likely to cause CTD within their respective area of responsibility. In addition, the program shall emphasize the importance of observing how employees perform job tasks, and activities which may be utilized to prevent or control the problem. The training shall also include education on the specific jobs which are likely to cause CTD, the stressors involved, and the engineering and other control measures that are part of this program. All supervisors shall receive training within one (1) month of execution of this Agreement by all parties hereto and annually thereafter. New supervisors shall receive training within thirty days of their promotion or assignment to a supervisory position.
iv. Quarterly training on CTDs shall be included at least once every three months as part of regular safety meetings for all production employees receiving specific training above. This training shall be initiated at each Facility three months after initiation of the training noted in subsection (ii) above.
v. Medical - All health care providers shall receive training which shall include a detailed review of the medical aspects of CTD, and how to perform a complete medical evaluation, treatment protocols, the proper use of diagnostic instruments, how to complete necessary forms and reports, and the importance of proper follow-up care. This training also includes education on the specific jobs which have been identified as causing or likely to cause CTD, the stressors involved, and the availability of appropriate alternate duty jobs. All designated health care providers shall receive training within one (1) month of execution of this Agreement by all parties hereto. Newly hired health care providers shall be trained as soon as practicable. Training shall be conducted by a physician or physicians designated by the Company.
V. Medical Management Program:
This Section applies to all of the Facilities covered by this Agreement.
A. Baseline CTD Conditions
B. The Medical Management Program
C. Procedures for Returning Employees to Work
D. Procedures for Return to Work After Surgery
E. Medical Management Program Definitions.
No employee shall be discriminated against because the employee reasonably requests and visits the medical facilities or because the employee has a diagnosed CTD and is undergoing medical rehabilitation. This Agreement and this provision are not intended to create any employee right or remedy beyond those under Section 11(c) of the Act. The Company shall do nothing to create potential disincentives to early reporting of CTD related conditions.
1. The Company agrees to gather information to establish a baseline for measurement of frequency of symptoms in the upper extremities.
2. The procedures that will be followed for new employees who are to hold a cited or non-cited job are:
(a) The Consultant will develop a written evaluation form directed at measuring frequency of symptoms in the upper extremities among those employees currently holding cited and non-cited jobs.
(b) The form will be administered to all employees by or under the supervision of a provider. The Company agrees to encourage all employees to thoroughly, honestly, and promptly complete and return the form. The form will be drafted within thirty days of the execution of this Agreement and given to the employees within one year thereafter. The form shall be given to the employees during a two week period during working hours scheduled by the Company. The forms will be promptly reviewed by the Company and if any employee reports any sign of an upper extremity disorder, the employee may request to be promptly seen by the provider and integrated if necessary into the medical management program as set forth below in Section V.B.
The overall results of the form will be collected and tabulated for each job category within thirty days and provided to the OSHA Office of Field Programs ("OFP") and the appropriate employee representative within thirty days of tabulations. The evaluation form will be given annually during a two week period and compiled and provided to OSHA-OFP and the appropriate employee representative within the time frames above. Each Facility shall be allowed to determine the two week period during which the form will be given to its employees.
(a) All new employees must be given a physical examination. The physical examination will include examinations or tests of the upper extremities, including inspection, palpation, and range of motion.
(b) New employees will be seen by the provider during the first and fourth weeks of their employment. The provider will review any new symptoms that the employee may be experiencing.
(c) New employees exhibiting symptoms or physical signs during the time periods described in subsection (b) of this Section will be integrated into the medical management program for current employees described in Section B below.
1. The Medical Management Program for employees holding cited or non-cited jobs, which will be implemented within thirty days of the execution of this Agreement, will be as follows:
(a) The Company shall promptly evaluate employees who present CTD related symptoms. The Company shall maintain a first aid facility staffed with one or more providers to which each employee reporting symptoms related to CTD will be referred. Notwithstanding the above, given the limited production operations at Tampa, Florida and Dawson, Georgia, the Company need not staff those Facilities with providers. However, if a Tampa, Florida or Dawson, Georgia employee reports a CTD related complaint, the Company agrees that it will i) refer the employee to local medical clinics as soon as possible for CTD assessment and treatment, and ii) until the employee has been seen by the local clinic, reassign the employee to another available position that the Company in good faith, based upon an ergonomic review of the job, believes will not exacerbate the employee's condition.
(b) When an employee initially reports symptoms, the provider will conduct a screening examination if not previously conducted:
(c) If the directed physical examination reveals physical signs of an upper extremity disorder, the employee will either be sent to an authorized treating physician or conservative treatment shall be administered as medically appropriate and the employee's work procedures or methods changed as necessary. If the change in work procedures or methods does not promptly alleviate the employees' problem, the employee will be reassigned to another available position. The intent of the reassignment is to minimize or eliminate the risk that the employee's condition will be exacerbated. If there are no physical signs, the provider will, for initial symptoms consistent with muscle and/or tendon disorders and/or nerve entrapment, initiate therapy.
(d) If an employee with physical signs is not initially sent to an authorized treating physician, the Company shall reevaluate the employee within three working days.
(e) The Company shall also reevaluate those employees without physical signs within three working days.
(f) The Company shall not use paraffin for employees with symptoms of carpal tunnel syndrome or tendon related disorders.
(g) The Company will not use splints during work unless otherwise authorized or required by an authorized treating physician who is knowledgeable about the Company's Ergonomic Program, the Company's position that it will not use splints as treatment for an affected body part, and has been provided copies of the ergonomic analyses conducted hereunder for the purpose of allowing the doctor to determine whether the splint will exacerbate the employee's medical condition and a copy of OSHA's position regarding the use of splints at work. Notwithstanding the above, the Company agrees that it will review the use of splints with the treating physician if the Company believes the use of splints will not be in the best interests of the employee. Nevertheless, the final decision to use splints will be that of the authorized treating physician.
(h) The Company agrees to maintain written documentation of the treatment and work restrictions recommended by the authorized treating physicians who treat employees for CTD-related problems.
i. An interim history shall be taken:
ii. A directed physical examination (including inspection, palpation, and range of motion) will be conducted.
i) If the employee's condition has abated, the findings will be recorded and the employee will, as necessary, be gradually worked back into his/her job if they have been previously removed from their job.
ii) If the employee's condition is worse, the employee will be referred to an authorized treating physician.
iii) If the employee's condition is the same, conservative treatment will be continued and the employee will be reevaluated within three working days. If it is determined at the second reevaluation that the employee's condition has abated, the findings will be recorded and the employee will, as necessary, be gradually worked back into his/her job. If they have been previously removed from their job. If the employee's condition remains the same or is worse, the employee will be referred to an authorized treating physician.
i) If the employee's symptoms have abated, the findings will be recorded.
ii) If the employee's symptoms are the same, conservative treatment will be continued and the employee will be reevaluated within three working days. If the employee's symptoms have abated, the findings will be recorded. If the employee's symptoms remain the same or are worse, the employee will be referred to an authorized treating physician.
iii) If the employee develops positive physical signs, the employee will be treated in accordance with Section V.B.1.(c) above. If the employee is not sent to an authorized treating physician, the Company shall reevaluate the employee within three working days. If the employee's symptoms have abated, the findings will be recorded and the employee will, as necessary, be gradually worked back into his/her job if they have been previously removed from their job. If the employee's symptoms are the same or worse, the employee will be referred to an authorized treating physician.
1. When an employee returns to work with medical restrictions, the employee will only be assigned to those available existing production jobs at the Facility that are appropriate for the employee in light of his/her medical restrictions. Before assigning the employee, all such jobs will be evaluated to the extent necessary as described below to determine whether such jobs are appropriate for the employee.
2. The Company shall institute a procedure for reevaluating, each three working days, those employees who are returned to work under this program by the authorized treating physician. The reevaluation will continue until his/her conditions subside and will include a review of medical restrictions, if any, for the employee's upper extremity disorder.
i) The ergonomic analysis conducted pursuant to the ergonomic program described in this Agreement will be available and will be used, among other things, in determining what available production jobs such employee is capable of performing. All providers and potential treating physicians will be given copies of the job analyses for purposes of determining a possible assignment that will not further exacerbate the employee's medical condition. The intent of the reassignment is to minimize or eliminate the risk that the employee's condition will be exacerbated.
ii) If a job has not been previously evaluated for ergonomic stressors by the Consultant, the Consultant will evaluate the job for ergonomic stressors using the factors described in Section III.A.3. of this Agreement as part of the job assignment determination for the employee.
iii) The providers, in consultation with other appropriate management personnel, will determine which job the employee will be assigned upon return to work in light of his/her medical restrictions.
1. Employees who have had surgery for CTD must remain away from work involving the affected body part at least until sutures are removed and incisions healed and the underlying physical condition resolved. Return to work that would involve the affected body part must be approved by a physician who is fully informed by the Company of the foregoing position, the availability of alternate jobs, and who has been given copies of the job analyses for purposes of assisting the Company in determining possible job assignments that will not exacerbate the employee's medical condition. The intent of the assignment is to allow the medical condition to be resolved and to minimize or eliminate the risk that the employee's condition will be exacerbated. The Company will insure that, upon return to work, it will follow the medical restrictions, if any, issued by the physician and that adequate time is allowed for the employee to condition him/herself to the assigned task.
2. Physical evaluation of the employee after surgery, to assess work capabilities, must be performed to insure appropriate job placement. All providers and potential treating physicians will be given copies of the job analyses discussed in Section V.C.1.(i) above for purposes of determining an assignment that will not further exacerbate the employee's medical condition. When an employee returns to work after surgery there must be a reconditioning of the healing muscle/tendon/nerve group.
1. The term "authorized treating physician" refers only to those physicians who are designated by the Company and who have been provided the ergonomic training required herein. Nothing herein shall be construed as prohibiting the employee from choosing his or her own physician in accordance with applicable state laws. Nor shall this Agreement be construed in any manner whatsoever as allowing or permitting the Company to control the treatment of any authorized treating physician or any such physician chosen by an employee.
2. The term "provider" refers to a physician who specializes in occupational medicine, a registered nurse, or such other health personnel (such as a licensed practical nurse specializing in occupational health, or emergency medical technicians) working under the supervision of a physician or registered nurse.
3. The term "physical signs" shall mean a positive Tinel's, Phalen's, or Finkelstein's test or an objective observation or indication of a disorder or physical disturbance after inspection, palpation, range of motion, or other pertinent maneuvers or tests of the hand, wrist, back, or upper extremities, including, but not limited to: crepitus, numbness, loss of color, swelling, redness, or cramping.
4. The term "symptoms" shall include a subjective observation or indication of a disorder or physical disturbance, including, but not limited to, pain, discomfort, aching, burning, or tingling.
VI. Baseline Determinations
The parties agree that baseline determinations of present CTD conditions will be helpful to measure progress in this effort. To effectuate such determinations, the following shall occur:
- 1. Within two (2) months of the execution of this Agreement by all parties hereto, the Company shall at each Facility, from its OSHA 200 logs and 101 forms, provide OSHA with a listing of work-related CTD illnesses from calendar year 1989 and 1990, together with the job location of each listed incident. The listing shall include, where available, the location(s) at which each employee worked prior to diagnosis, the length of time the employee worked at each location, and the type of CTD and treatments provided. The purpose of this report will be to apprise the parties, as best possible from available information, of the Facilities and positions within Facilities having the prevalence of CTD injury potential. 2. OSHA shall at its discretion conduct baseline monitoring walk-throughs at the Facilities. The purpose of these walk-throughs is to form a baseline determination of presently prevailing conditions regarding CTD potentials.
VII. Periodic Program Meetings
A. The parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTD. The contact person for initiation of such meetings shall be the Deputy Director for the Office of Field programs for OSHA. The appropriate designated employee collective bargaining unit representative shall be permitted to participate in such meetings with respect to discussions pertaining to the Facilities they represent.
B. Within thirty (30) days of the execution of this Agreement by all parties hereto, The Company shall provide the Secretary with the name of a responsible management contact person from each Facility, each of whom shall meet with the appropriate OSHA Area Director within ninety (90) days of the Commission's entry of the Order to discuss activities under this Agreement. Additional meetings shall be held on a semi-annual basis unless the parties agree otherwise. The appropriate designated employee collective bargaining unit representative shall be permitted to participate in such meetings with respect to discussions pertaining to the Facilities they represent.
VIII. Entry Onto Company Facilities
The Company agrees to allow OSHA access to the Facilities and appropriate documents to determine progress and compliance with this Agreement and to conduct compliance inspections under the Act. OSHA agrees that, assuming continued good faith implementation of this Agreement by the Company, it shall not conduct general schedule inspections as to ergonomic issues covered by this Agreement at the Facilities, except that OSHA may conduct baseline and monitoring inspections to determine compliance with this Agreement and all other types of inspections permitted under the Act.
If, during the course of any inspection conducted during the life of this Agreement, the Secretary detects a situation or condition related to the coverage of this Agreement which would ordinarily result in a citation, the Secretary will determine whether the condition is being or will be addressed as part of the Facility's activities pursuant to this Agreement. If the condition is reasonably being or will be addressed pursuant to this Agreement, no citation shall be issued.
OSHA retains the right to issue ergonomic related citations to any Facility in the event the Company is determined by OSHA not to be implementing this Agreement in good faith.
IX. Ergonomic Audit
The Company shall establish a process to audit its performance under this Agreement including review of the quarterly ergonomic reports to ensure the effectiveness of its ergonomics program at all Facilities covered by this Agreement. The audit will include a review of the implemented controls. The ergonomics audit is to be conducted with and made an integral part of the Company's ergonomics program. The audit will be conducted at a minimum on an annual basis and shall commence on August 1, 1991.
B. Audit Findings and Recommendations
Audit reports, and the findings and recommendations therein, together with management responses, will be provided to the OSHA area office and to the employee representative.
Quarterly written reports shall be submitted to the OSHA area offices having jurisdiction over each of the Facilities and to OSHA's Office of Field Programs. The reports shall describe the activities under this program during the previous three (3) month period, including the number of employees receiving training, the number of employees treated for CTD, the extent of such treatment, job rotation, identification and control of stressors, any pilot projects conducted, or other relevant information.
A copy of any planned rotation program and any significant changes to the program shall be sent to the appropriate OSHA area office and to the appropriate employee representative prior to implementation.
Reports required under this Agreement shall be sent to the appropriate employee collective bargaining unit representatives or, where no such unit exists a copy will be provided to affected employees for review upon request.
In each quarterly report, the Company shall indicate i) all newly identified jobs that have not been previously reported to OSHA that present ergonomic hazards, in addition to the OSHA cited jobs, ii) whether and to what extent ergonomic hazards have been abated, and iii) whether and why controls recommended by OSHA or the Consultant are not to be implemented at any prescribed Facility. The Company shall provide OSHA with the basis for such determinations. OSHA specifically reserves the right to disagree with any such determinations and the basis therefor.
After the expiration of three (3) years, such reports shall be submitted annually, unless at any time OSHA determines that such reports are no longer useful or necessary at any or all of the Facilities.
XI. Dispute Resolution
If the Secretary disagrees with the Company's determinations as listed in Section X above, she will state her points of disagreement, and the reason or reasons she disagrees, in writing within 30 days of receiving the report so that the Company can review them. The Secretary, the Company, and the respective employee representative will then engage in good faith discussion to resolve the disagreement. If the parties are unable to resolve their differences, OSHA will, in writing, notify the Company and the respective employee representative as to its position on the issue. This paragraph is not intended to limit the Secretary's right to use, as appropriate, enforcement methods provided by the Act.
XII. Term of Agreement
This Agreement shall be in effect for period of four (4) years from the Commission's entry of the Order. This Agreement will remain in effect thereafter unless and until either the Company or OSHA gives the other party sixty (60) days notice that the Agreement is cancelled.
XIII. Treatment of Confidential Material
It is understood that the reports generated by the activities described in this Agreement shall be handled pursuant to Section 15 of the Act (29 U.S.C. ?664), 18 U.S.C. ?1905, and 29 C.F.R. ?1903.9. The Company shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or business confidential material.
XIV. Extensions of Time
Requests for modifications of abatement under this Agreement shall be controlled by 29 C.F.R. ?1903.14a or such successor provision thereto. Requests shall be submitted to the OSHA area office with jurisdiction over the respective Facility for which the modification is sought.
The Company will within six (6) months of the execution of this Agreement by all parties hereto implement at the Facilities a program to examine relevant records in its possession of all employees to ensure that the required records are in compliance with the regulations of 29 C.F.R. Part 1904, the instructions on OSHA Form No. 200 Log, and the Revised Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics in April 1986 (the "1986 BLS Guidelines"). This review shall include: 1) entry on the 200 log of the injuries and illnesses cited by OSHA; and 2) entry of all other instances that were properly recordable from January 1, 1989 to the date of execution of this Agreement.
The Company agrees to hereafter maintain at the covered Facilities its occupational injury and illness records in accordance with the regulations of 29 C.F.R. Part 1904, the OSHA 200 log and its instructions, and the 1986 BLS Guidelines, as the same may be amended from time to time.
Within six (6) months of the execution of this Agreement by all parties hereto the Company shall conduct training in OSHA injury and illness recordkeeping requirements for those of its employees having responsibility for recordkeeping at the Facilities. The training program will be conducted by individuals knowledgeable in the recordkeeping requirements. The training program will cover the regulations of 29 C.F.R. Part 1904, the instructions on OSHA Form No. 200 Log and OSHA Form 101 or their acceptable equivalents, the 1986 BLS Guidelines, as they may from time to time be amended, as well as the provisions of this Agreement. Thereafter, newly-appointed recordkeepers shall be given similar training.
The Company will implement the following procedures at the Facilities. Pending an investigation and final determination, if a case otherwise meets the requirements for recording, the Company shall record injuries and illnesses which (1) involve filed workers' compensation claims, (2) involve sickness or accident claims for which occupational causation is claimed, or (3) involve medical restrictions or job transfers. In addition, before concluding that a case will not be recorded, the Company shall ask the employee whether the condition is caused or aggravated by work. If the employee answers in the affirmative and the case otherwise meets the recording criteria, the case will be entered on the log pending an investigation and final determination of causation.
If a case is removed from the log as a result of the investigation, the Company will maintain a record of the reasons for removal and make it available to the appropriate OSHA Area Director.
Within seven (7) months of the execution of this Agreement by all parties hereto the Company shall provide OSHA-OFP with a report certifying that the actions required herein this Section XV have been implemented. The report will outline all programmatic changes made by the Company to implement this Section XV and it will include all written and other materials for training, instruction, or guidance disseminated by the Company or its agents to plant recordkeepers and safety personnel.
1. Buena Vista, Georgia, including Dawson, Georgia, further processing
2. Jacksonville, Florida, including the Tampa, Florida, Distribution Center
3. Springdale, Arkansas
4. California, Missouri
5. Ozark, Arkansas