__________________________________________ ) ELIZABETH DOLE, SECRETARY OF LABOR, ) UNITED STATES DEPARTMENT OF LABOR, ) ) Complainant, ) ) v. ) OSHRC DOCKET NO. 89-1060 ) EMPIRE KOSHER POULTRY, INC., ) ) Inspection No. 1767763 Respondent, ) and ) ) UNITED FOOD AND COMMERCIAL WORKERS, ) LOCAL UNION 72, ) ) Authorized Employee Representative. ) __________________________________________)
Complainant and Respondent have reached a settlement in full of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. The parties agree as follows:
(a) The Occupational Safety and Health Review Commission (herinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. Section 651 et seq.) (hereinafter the "ACT").
(b) Respondent, Empire Kosher Poultry, Inc. is a corporation with its principal place of business located in Mifflintown, Pennsylvania. It has been at all times material to this proceeding engaged in the business of processing Kosher poultry and has operated a Kosher poultry processing facility located in Mifflintown, Pennsylvania. During the course of its business, Respondent, at its Mifflintown facility, uses material and equipment which it receives from places located outside Pennsylvania. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(3) and 3(5) of the Act, and 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 August 31, 1988 through February 23, 1989 at Respondent's workplace in Mifflintown, the Mifflintown Poultry Processing Plant, citations alleging violations of the Act were issued to Respondent on February 28, 1989.
(d) Respondent disagreed with the citations and filed a timely notice of contest to the citations, proposed penalties, and abatement measures and dates with the Secretary of Labor. The contest was duly transmitted to the Commission.
(a) Respondent agrees to withdraw its notice of contest to all citations and penalties, as amended by this Stipulation of Settlement Agreement.
(b) A total penalty of $350,000.00 for this case has been agreed to and will be paid in full upon the approval of this Stipulation by the Administrative Law Judge.
(c) Abatement will be accomplished as provided in Section IV of this Stipulation.
(d) The parties agree that an order may be issued of record shoeing that respondent has withdrawn its notice of contest and entering the citations and notification of proposed penalty, as amended, as a final order of the Commission.
(e) Each party agrees to bear its own fees including attorneys' fees and other expenses incurred by such party in connection with any stage of the proceeding.
(a) With respect to the abatement of all citation items except Citation 1, Item 1, Respondent has hired a private consulting firm BCM Engineers ("BCM"), to advise Respondent on effective abatement measures and help to implement abatement of the alleged violations. The "BCM" proposed Action Plan is attached hereto as Attachment "A" and is incorporated into this Stipulation of Settlement. Respondent agrees to abide by all of the terms, abatement measures and dates contained in the "BCM" proposal (Attachment "A"). For all citation items not specifically listed in the "BCM" proposal, Respondent agrees to abate the alleged violations by the dates specified in the citations. Respondent agrees to provide OSHA and the UFCW Local Union President with all regular progress reports furnished by "BCM" (see, Attachment "A", page 7) in addition to the quarterly reports described in paragraph (e).
(b) With respect to abatement of Citation 1, Item 1, and to the prevention of cumulative trauma disorders at all of its poultry processing plants, Respondent agrees to implement the following controls and programs:
1. Carol Stuart-Buttle will be retained by the Respondent to develop an ergonomic program at the Respondent's poultry processing plants, including Mifflintown Frying and Further Processing Plant and the Mount Union Poultry Processing Plant ("All plants"). Ms. Stuart-Buttle will be retained for a period of time of at least three years. Ms. Stuart-Buttle will perform ergonomic analysis and education of employees and supervisors. She will be assisted in developing and implementing ergonomic solutions at "all plants" by Dr. Andris Freivalds and Dr. Joseph Goldberg.
2. Dr. Barbara Silverstein will be retained by the Respondent to develop and assess a medical surveillance program for work-related musculoskeletal disorders at "all plants".
3. For those jobs at the Mifflintown Poultry Processing Plant for which citations were issued by OSHA, the Respondent with the assistance of its above-noted consultants will initiate a detailed analysis to fully define the ergonomic problems and determine potential solutions. The analysis will address the anthropometry, posture, forces, tools and gloves of the workers as well as the frequency of actions and work recovery cycles. The analysis to be performed is more fully described in Ms. Stuart-Buttle's Abatement Schedule of Ergonomic Issues attached hereto as Attachment "B". OSHA and the UFCW Local 72 President will be provided with copies of Ms. Stuart-Buttle's job analysis.
4. Concurrently with the analysis of the OSHA cited jobs, solutions will be recommended, tested and evaluated by Ms. Stuart-Buttle with the assistance of Drs. Freivalds and Goldberg. Solutions identified as suggested abatement methods in Citation 1, Item 1 will be included in the testing and evaluation process, unless the Respondent determines the solutions are not feasible. For all OSHA recommended solutions which the Respondent determines are not feasible, the Respondent will provide OSHA with the reason for the determination. OSHA specifically reserves the right to disagree with any such determination and to inform the Respondent that such controls are necessary and appropriate and to take whatever enforcement action is necessary. The Respondent will also test and evaluate administrative changes such as work enlargement and training to teach employees to perform their jobs in the least stressful way. Employee input will be sought and considered in evaluating, testing and formulating potential solutions. The testing and evaluation is more fully described in Attachment "B" and will be performed by the dates specified in Attachment "B". OSHA and the UFCW Local 72 President will be provided with copies of Ms. Stuart-Buttle's reports on testing and evaluation.
5. The Respondent agrees to fully implement all feasible engineering and administrative control recommendations of Ms. Stuart-Buttle for the OSHA cited jobs within two years from the date the Settlement is signed by the parties.
6. The Respondent with the assistance of the above-noted consultants will also evaluate the entire Mifflintown Poultry Processing Plant as well as its other poultry processing plants ("other plants") to determine the extent and location of jobs, in addition to those cited by OSHA, that have caused or are likely to cause cumulative trauma disorders. This evaluation will include review of the OSHA 200 logs, medical records, employee complaints, medical surveillance data, direct observation and employee input. Initial analysis will include those factors described in Paragraph (b)3. The analysis will be completed within eighteen months of the date the Settlement is signed by the parties and the consultant's report will be provided to OSHA, and the UFCW Local 72 Presidents.
7. Solutions to the ergonomic problems identified at Respondent's "other plants" and at non-cited jobs at the Mifflintown Poultry Processing Plant will be recommended, tested and evaluated in the manner described in Paragraph (b)4 above. Testing and evaluation will be performed within thirty months of the date the Stipulation is signed.
8. The Respondent agrees to fully implement all feasible engineering and administrative controls at its "other plants" and at non-cited jobs at the Mifflintown Poultry Plant within three years of the date the Settlement is signed by the parties.
9. Respondent agrees to implement an education program at "all plants" to educate employees, supervisors, engineers and other plant management on the early signs of cumulative trauma disorders, the range of disorders (i.e. what they are), causes of these disorders and means of prevention. The program will include a description of the ergonomic program and work taking place in the plant so employees will be familiar with it. All new employees will be given such education during orientation. All existing employees will be provided such education within the first nine months of the signing of this Stipulation for the Mifflintown Poultry Processing Plant and by one year for the "other plants".
10. Respondent agrees to provide training for employees at "all plants" on the least stressful way to perform their jobs. Carol Stuart-Buttle will identify jobs and employees for such training in conjunction with plant supervisors. When Ms. Stuart-Buttle conducts the job analysis described in Paragraphs (b)3 and (b)6 above, she will note the manner in which the employee performs the job as well as the need for additional training.
11. Respondent agrees that new employees at all of its facilities will be gradually integrated into a full work schedule and examined for minimum overuse symptoms.
12. Respondent agrees to hire a full time registered nurse for its Mifflintown Poultry Processing Plant.
13. Respondent agrees to implement the Surveillance Program for Work-Related Musculoskeletal Disorders proposed by Dr. Silverstein. The program is attached hereto as Attachment "C" and is incorporated into this Stipulation of Settlement. Respondent agrees to determine a baseline measure of symptoms for the Mifflintown Poultry Processing Plant within three months of the signing of this agreement by the parties and at its "other plants" within nine months. Respondent agrees to compile a catalog of job descriptions in the manner described in Attachment "C" within six months for the Mifflintown Poultry Processing Plant and within one year at its "other plants".
14. Respondent agrees to implement at the Mifflintown Poultry Processing Plant the medical management program for symptomatic employees in the manner described in Paragraph D of Attachment "C" within six months of this agreement by all of the parties. Respondent agrees to implement the medical management program within twelve months at its "other plants".
(c) With respect to abatement of Citation 1, Items 2 and 3, and the prevention of noise-related illnesses and injuries at all of its facilities, Respondent agrees to implement the following programs and controls:
1. Respondent will abate the alleged violations of 29 C.F.R. 1910.95(i)(2)(i) by requiring the wearing of hearing protectors by all employees at the Mifflintown Poultry Processing Plant who are exposed to sound levels exceeding those listed in Table G-16 of 29 C.F.R. 1910.95 ("permissible exposure level.") Respondent represents that the alleged violations of 29 C.F.R. 1910.95(i)(2)(i) have been fully abated.
2. Respondent will abate the alleged violations of 29 C.F.R. 1910.95(c)(1) by instituting a hearing conservation program at the Mifflintown Poultry Processing Plant for all employees whose noise exposures exceed an 8-hour time weighted average of 85 decibels ("action level"). The hearing conservation program will be developed by "BCM" as described in Attachment "A" and will be fully implemented at the Mifflintown Poultry Processing Plant by July 1, 1989.
3. "BCM" will perform noise monitoring at Respondent's "other plants" whenever information indicates that any employee's exposure is greater than the "action level". Noise monitoring at the "other plants" will be performed by October 1, 1989.
4. All employees at Respondent's "other plants"
identified as having noise exposures greater than the "action level" will be included in a hearing conservation program.
5. The hearing conservation program for all of Respondent's employees exposed to noise levels above the "action level" will be developed by "BCM" as described in Attachment "A". Baseline audiograms for Mifflintown Poultry Processing Plant employees have been obtained. Baseline audiograms for Respondent's employees at its "other plants" will be obtained by November 1, 1989. "BCM" will develop a training program on the effects of noise, the purpose and proper use of hearing protectors and the purpose of audiometric testing for employees. The training program is more fully described in Attachment "A". Employees at the Mifflintown Poultry Processing Plant will be trained by July 1, 1989. Employees at Respondent's "other plants" will be trained by November 1, 1989.
6. For operations at Respondent's "other plants"
identified as creating employee noise exposures greater than the "permissible exposure level", "BCM" will determine whether engineering or administrative controls are feasible. Respondent will institute all feasible engineering and administrative controls by December 1, 1990.
7. All employees at Respondent's "other plants"
identified as having noise exposures greater than the permissible exposure level will be required by October 15, 1989 to wear hearing protection until engineering or administrative controls have reduced exposure levels to beneath the exposure level.
8. Other than abatement date modifications specifically noted in paragraphs (c)1-(c)7 above, Respondent agrees to abide by all of the terms, abatement measures and dates contained in the "BCM" proposal (Attachment "A"). Respondent agrees to provide OSHA and the UFCW Local Union President with all regular progress reports furnished by "BCM" in addition to the quarterly reports described in paragraph (e).
d. With respect to abatement of Citation 1, Item 4, and the correction of possible recordkeeping deficiencies at Respondent's "other plants", Respondent agrees to implement the following programs and controls:
1. Respondent will abate the alleged violations by adding the instances of failure to record on its OSHA Form No. 200 Log ("Log") for the years 1987 and 1988 and by correcting the information on the Log for instances of failure to record properly.
2. Respondent will undertake an examination of relevant records in Respondent's possession to ensure that the OSHA required records in "all plants", going back to January 1, 1987, are in compliance with the Act, the regulations at 29 C.F.R. Part 1904, the "Log" instructions, and the Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics in April 1986 ("1986 BLS Guidelines"). Complainant agrees that, during this examination period and for any item placed appropriately on the "Log" in compliance with this Paragraph either during or prior to this examination, Respondent will not be cited for allegedly failing to comply with the Act's recordkeeping requirements.
3. Respondent will institute a training program at "all plants" for OSHA recordkeeping to train those of its employees having responsibility for OSHA recordkeeping at all of its facilities. The training program will cover the regulations at 29 C.F.R. Part 1904, the "Log" instructions as well as the 1986 BLS Guidelines.
4. As more fully described in Attachment "A", "BCM" has been hired by the Respondent to supervise the actions described in Paragraphs (d)1 and (d)2 above. "BCM" will provide the training described in the Paragraph (d)3.
5. Respondent agrees to complete the actions described in Paragraph (d)1 by August 1, 1989, to complete the actions described in Paragraph (d)2 by December 31, 1989 and to complete the actions described in Paragraph (d)3 by July 1, 1989.
E. Respondent will provide the Harrisburg OSHA Area Office with written interim quarterly reports setting forth the progress of abatement of all of the cited items and the progress on achieving abatement at "all plants". Should the Respondent determine that any controls identified under the terms of this Agreement are not to be implemented, it shall notify OSHA in the next scheduled quarterly report and provide the basis for that determination. OSHA specifically reserves the right to disagree with any such determination and to inform the Respondent that such controls are necessary and appropriate and to take whatever enforcement action is necessary.
Respondent shall provide OSHA and the UFCW with complete copies of all progress reports.
Complainant and the Union acknowledge that the progress reports and/or the quarterly reports referred to herein may contain confidential or proprietary information and that if so designated by the Respondent, such confidential or proprietary information shall not be revealed by Complainant or the Union to any other poultry processor.
The Respondent agrees to allow OSHA access to all of its plants to determine compliance with this Agreement and to conduct compliance inspections under the Occupational Safety and Health Act. OSHA agrees that, assuming implementation of this agreement by the Respondent, it shall not conduct inspections as to ergonomics, noise and recordkeeping issues covered by this agreement at the Respondent's facilities covered by this agreement during the abatement periods specified in this agreement, except that OSHA shall conduct monitoring inspections to determine compliance with this agreement. OSHA further agrees that if, as a result of these monitoring activities during the abatement period it discovers apparent violation(s), OSHA will so inform the Respondent before completing the monitoring inspection.
(a) If the Respondent needs additional time to complete any of the actions required under this settlement agreement, it shall submit a written request for an extension of time to the Harrisburg Area Director no later than the close of the next working day following the date by which the action was required to have been completed.
(b) Such a written request for an extension of time shall address the following items:
1. All steps related to the required action taken by the Company and the dates of such steps during the prescribed period.
2. The specific additional estimated time needed to complete the required action.
3. The reasons why such additional time is necessary, including a detailed discussion of unanticipated problems.
4. All available interim steps being taken to safeguard the employees against the cited hazard(s) during the abatement period.
5. Written certification that a copy of the request has been posted or provided to an authorized employee representative in plants where employees are represented.
C. The Area Director may decide to conduct a monitoring inspection to verify the need for additional time.
By entering into this Stipulation and Settlement Agreement, Respondent does not admit any wrongdoing or violation of the Occupational Safety and Health Act or any regulation or standard issued pursuant thereto. It is further agreed that the terms of this Stipulation and Settlement Agreement will not constitute an admission of any kind by either party in any proceeding before any court, agency, commission or any other body in any action arising from, growing out of, or related to the matter set forth in the citations, except for further proceedings under the Act. This Agreement is made in order to avoid further litigation and expense to both the government and Respondent and to resolve differences regarding compliance with the Act.
WHEREFORE, the parties agree that under the above-noted conditions this matter docketed before the Commission as Docket No. is hereby settled.
Dated this 12 day of May, 1989.
Empire Kosher Poultry, Inc. __________________________ Jerry G. Thorn Acting Solicitor of Labor By: ___________________________ __________________________ Murray L. Katz, President Marshal H. Harris Empire Kosher Poultry, Inc. Regional Solicitor P.O. Box 165 Mifflintown, PA 17059 __________________________ B. Anne Gwynn Attorney U.S. DEPARTMENT OF LABOR Attorneys for Complainant McNees, Wallace & Nurick By: ___________________________ Norman I. White United Foods and Commercial Workers Union, Local 72 By: ___________________________