___________________________________ ELIZABETH DOLE, Secretary of ) Labor, U. S. Department of Labor, ) ) Complainant, ) OSHRC DOCKET ) NO. 89-2894 v. ) ) INTERCONTINENTAL BRANDED APPAREL, ) ) Respondent, ) ) AMALGAMATED CLOTHING AND TEXTILE ) WORKERS UNION, ) ) Authorized Employee ) Representative. ) ___________________________________)
The Complainant and Respondent have reached a full settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. Complainant and Respondent hereby agree to the settlement of Citation Nos. 3, 4 and 5 of this case based on the terms and conditions set forth below.
A. The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter 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, M. Wile & Company, Inc. d/b/a Intercontinental Branded Apparel, is a corporation with its principal place of business in the State of New York. During the course of its business, Respondent, in its State of New York facilities uses material and equipment which it receives from places located outside the State of New York. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined in 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 March 16, 1989 through September 6, 1989, at Respondent's workplace in Dunkirk, New York, three citations alleging violations of the Act were issued to Respondent on September 8, 1989, pursuant to Sections 8 and 9 of the Act. Citations 3 and 4, as amended in the Secretary's complaint, alleged non-serious violations of 29 C.F.R. 1904.2(a), and proposed $0 penalty for each alleged violation. Citation 5 alleged one willful violation of Section 5(a)(1) of the Act for exposing employees to the hazards of repetitive motion job tasks that could lead to the development of cumulative trauma disorders. A notification of proposed penalties in the amount of $10,000 was also issued to Respondent on September 8, 1989.
D. Respondent disagreed with the three citations and notification of proposed penalties and filed a notice of contest. The contest was duly transmitted to the Commission. The authorized employee representative, the Amalgamated Clothing and Textile Workers Union, has elected party status in this proceeding.
A. Complainant agrees to amend the notification of proposed penalties to reflect a penalty of $5,000 for Citation 5.
B. Respondent agrees to withdraw its notice of contest to the three citations and penalties as amended herein. Respondent shall submit payment of the total amended penalty of $5,000 within thirty days after this Agreement. becomes a final order of the Commission.
A. Respondent agrees to abate the conditions noted in Citation 5 by implementing the following Ergonomic Agreement, which is specifically incorporated in its totality into this Agreement.
B. Respondent also agrees to make the work stations identified in Citation 5 the highest priority of its ergonomic consultant (see paragraph 5 of the Ergonomic Agreement) with respect to the review, job analysis and abatement process outlined in the Ergonomic Agreement. Consultant shall first consider the abatement methods listed in Citation 5 in implementing abatement for those work stations.
A. The parties agree that based on the foregoing representations and on the terms of the Ergonomic Agreement incorporated herein, an order may be issued of record showing that the Respondent has withdrawn its notice of contest and entering the three citations, notifications of proposed penalties, as amended, and the aforesaid Ergonomic 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 proceeding.
Respondent certifies that on _______1-15-91________, this stipulation will be posted where affected employees can see it.
___________________________ ___________________________ PATRICK R. TYSON, ROBERT P. DAVIS, Attorney for Intercontinental Solicitor of Labor Branded Apparel _____________________________ PATRICIA M. RODENHAUSEN, Regional Solicitor _____________________________ DENNIS K. KADE, Deputy Regional Solicitor U.S. DEPARTMENT OF LABOR Attorneys for ELIZABETH DOLE, Secretary of Labor ________________________ P.O. ADDRESS: DORIS HEATH Patricia M. Rodenhausen Authorized Employee Regional Solicitor Representative, Amalgamated U.S. Department of Labor Clothing & Textile Workers 201 Varick Street, Room 707 Union New York, NY 10014 Tel: 212/337-2078
I. General Recognition Language
M. Wile & Company, Inc. d/b/a Intercontinental Branded Apparel, and its successors (hereinafter referred to as "the Company") and the U.S. Department of Labor, Occupational Safety and Health Administration (hereinafter referred to as "OSHA") recognize that cumulative trauma disorders (hereinafter referred to as "CTDs") are an occupational illness prevalent in the apparel industry and other industries with similar manufacturing jobs.
The Company and OSHA also 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 may include engineering controls intended to reduce or eliminate job-related CTD stressors, e.g., force, improper posture, repetition and vibration; employee and supervisory training and education; early recognition of the problem; early and proper medical diagnosis, treatment care and follow-up; and administrative controls such as job enlargement, cross training, alternative methods and rest pauses.
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 tendonitis, tenosynovitis, synovitis, carpal tunnel syndrome, stenosing tenosynovitis of the fingers (trigger finger), low back strains and epicondylitis (tennis elbow or golfer's elbow).
II. Covered Facilities
This agreement covers the Company locations described in Appendix A to this Agreement.
III. Ergonomics Program
Elements of the Program
A. Identification and Control of Stressors
An ergonomic review of the processes which may pose a hazard of CTD shall be conducted by the consultant(s) set forth in paragraph V of this Agreement. This review shall evaluate operations with regard to existing and new work positions, practices, tools and equipment to identify stressors (improper posture, force, vibration and excessive repetition). The Company, working with the consultant will attempt to determine control strategies intended to eliminate or materially reduce these stressors.
The review shall consist of an evaluation of the OSHA 200 logs, 101 forms, medical records and other relevant available documentation; written supervisory evaluation forms; and an onsite review by the consultant.
B. Engineering and Administrative Controls
The parties recognize that various engineering and administrative controls may provide effective reduction in CTD incidence. Employee input will be sought and considered in formulating, evaluating, and testing potential solutions. The Company shall implement [appropriate and] feasible engineering controls in all facilities at positions reasonably believed to be causing or likely to cause a CTD hazard. When engineering changes are determined to be insufficient to significantly reduce or eliminate the ergonomic stressors that have been determined to cause or likely to cause CTD, the Company shall implement feasible work practices and administrative controls such as job enlargement, cross training, alternative methods and rest pauses.
1. Orientation and Training:
The Company will, as indicated below, develop a formal training program for its employees, supervisors, and medical staff.
a. Within 120 days after entry of a final Order by the Commission, the Company will obtain a videotape or alternatively will develop internally a videotape to provide training to production employees. The videotape (in conjunction with any supplementary materials) shall include information on the medical aspects of cumulative trauma disorders, the importance of early reporting, proper treatment, and movements and positions which may cause or aggravate the condition. The Company will use its reasonable best efforts to complete its training of production employees within 240 days of entry of a final Order by the Commission and annually thereafter. All new employees shall be shown the videotape as part of their orientation. Such training shall consist of at least one hour per year of which at least thirty minutes shall consist of viewing the videotape.
b. The Company shall within 120 days after entry of a final Order by the Commission provide training to its supervisors which shall include information on stressors which cause or contribute to CTD, observation techniques to detect potential unreported CTD problems and the importance of correcting and maintaining proper work practices and methods.
c.The Company shall provide training and/or consultation to its in-plant nurses or other medical providers regarding the medical aspects of CTD, appropriate medical exams and treatment protocols, the completion of necessary forms and reports and the importance of case follow-up.
d. Employees in jobs reasonably believed to be causing or likely to cause a CTD shall receive job-specific training with respect to appropriate work methods and practices intended to eliminate or reduce stressors involved in their operations, postures and activities which cause or contribute to CTD and the important of maintaining neutral wrist position and posture. This training shall be completed for the Dunkirk facility within twelve (12) months from the entry of a final Order, and at all other covered facilities within twenty-four (24) months from the entry of a final Order by the Commission.
a. The Company shall within 90 days after entry of a final Order by the Commission, implement a program of early detection, treatment and follow-up of CTD at all covered locations. The program shall include provisions for prompt evaluation of employee symptoms. When directed by a physician or by a Company medical personnel, employees shall be given sufficient time for the involved muscle/tendon to heal. This time shall include time off work, or transfer to another job which poses a lesser risk of such injuries. When injured employees require time off work, upon returning to work they shall, when directed by a physician or by medical personnel and, if appropriate and available, be permitted to recondition the injured muscle/tendon group by gradual resumption of duties. This shall occur in addition to any other prescribed treatments.
b. The medical program shall incorporate and develop the following concepts:
(i) A uniform medical management protocol for CTDs will be developed and implemented at all facilities covered by this Agreement. Medical personnel will be trained to use this protocol which will include the following:
(ii) Standardized physical examination, medical history and recording form.
(iii) Specified written protocols for the treatment of employees with positive physical signs on examination as well as those with symptoms but no physical signs.
(iv) Reevaluation shall be scheduled in no less than one week. If the condition is unchanged, a further evaluation shall be scheduled in no less than one week.
(v) Employees shall not be discriminated against because they reasonably request and visit the medical facility or because they have diagnosed CTD problems and are undergoing medical rehabilitation. (This provision does not create any right or remedy beyond those included in Section 11(c) of the Act.)
c. Implementation of the Program
1. The Company will establish an ergonomics pilot program at its Dunkirk, New York facility. Evaluation of the processes initially selected for review shall be completed within six months of the entry of a final Order by the Commission. Implementation of measures designed to control CTDs in the pilot project, including engineering controls, shall be completed within twelve months of the entry of a final Order by the Commission.
2. In addition, the multi-plant evaluation process as to production processes not included in the pilot program shall be completed within eighteen months of the entry of a final Order by the Commission. Final implementation of control measures shall be completed at covered facilities within two years of the entry of a final Order by the Commission. Final implementation shall be effected at all covered locations, positions and jobs reasonably believed to be causing or likely to present the CTD hazard, including both those represented in the pilot program and those not represented in the pilot program.
IV. 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:
A. Within 120 days after entry of a final Order by the Commission, the Company shall, from information available from the OSHA Form 200 log and Form 101 supplemental report for each covered facility, provide to OSHA a listing of work-related CTD illnesses from calendar years 1988, 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 as possible from available information, of the facilities and positions within facilities having the prevalence of CTD injury potential.
B. OSHA shall at its discretion conduct baseline monitoring walk-throughs at covered facilities. The purpose of these walk-throughs is to form a baseline determination of presently prevailing conditions regarding CTD potentials.
The Company agrees to retain the services of a consultant qualified by experience and education to address cumulative trauma disorder problems.
VI. Periodic Program Meetings
The parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTDs. The contact persons for initiation of such meetings shall be the Vice President of Human Resources, or his successor, for the Company and the Area Director for the Buffalo OSHA Area Office.
VII. Entry Onto Company Facilities
A. The Company agrees to allow OSHA reasonable access to all of its covered facilities and appropriate documents to determine progress and compliance with this Agreement and to conduct compliance inspections under the Occupational Safety and Health Act. OSHA agrees that, assuming implementation of the agreement by the Company, it shall not conduct general schedule inspections as to ergonomic issues covered by this Agreement at covered 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 OSH Act.
B. If, during the course of any inspection conducted during the life of this Agreement (two years from the entry of a final order by the Commission), the Secretary detects a situation or condition related to the coverage of this Agreement which would ordinarily result in 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 OSHA determines that the condition is reasonably being or will be addressed pursuant to this agreement, no citation shall be issued.
C. OSHA retains the right to issue ergonomic related citations and/or notices to any facility in the event the Company is determined by OSHA not to be implementing this Agreement in good faith.
A. For the first twelve months, quarterly, and for the remaining twelve months, semiannual, reports shall be submitted to the OSHA area office having jurisdiction over each of the facilities covered by this Agreement and to OSHA's national office, Office of Compliance Programming. The reports shall describe generally the activities under this program during the previous report period, including the number of employees receiving training and the type of training provided, the number of employees treated for CTD, the extent of such treatment, and the implementation of engineering and/or administrative controls with respect to operations determined to cause or likely to cause CTD hazards. The reports shall also describe engineering and/or administrative controls that have been recommended by the consultant but not implemented, and explain the reasons of not doing so.
B. Reports required under this Agreement shall be made available to appropriate employee collective-bargaining unit representatives.
C. OSHA specifically reserves the right to disagree with any determination made by the Company that controls which the Company decides not to implement are either unnecessary or inappropriate.
D. It is understood that the reports generated by 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 information.
IX. It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Therefore, the parties agree as follows:
This Settlement Agreement or the statements, actions and findings made by Respondent in connection herewith or hereafter in fulfilling its obligations hereunder do not and shall not constitute an admission by Respondent of any violation of the Act.
This Settlement Agreement shall not be used in any proceeding before any court, agency, commission or any other body, except for further proceedings under the Act.
Nothing contained in this Settlement Agreement shall preclude Complainant at the conclusion of the term of this Settlement Agreement from investigating any of the plants or conditions covered in this Settlement Agreement and, if appropriate, to issue citations relating to the conditions covered in this Settlement Agreement.
WHEREFORE, the Secretary of Labor and Intercontinental Branded Apparel agree that under the above-noted conditions this matter before the Commission as Docket No. 89-2894 is hereby settled.
Buffalo, NY 14207
Buffalo, NY 14203
Dunkirk, NY 14048
________________________________________________ RODERICK A. DeARMENT, Acting Secretary of Labor,) United States Department of Labor, ) ) OSHRC Docket Complainant, ) ) NO. 89-2984 v. ) ) INTERCONTINENTAL BRANDED APPAREL, ) ) Respondent, ) ) AMALGAMATED CLOTHING AND TEXTILE WORKERS ) UNION, ) Authorized ) Employee ) Representative. ) ) ________________________________________________)
Respondent in OSHRC Docket No. 89-2984, by a letter filed September 14, 1989 contested three citations issued to it by Complainant on September 8, 1989. In that letter, Respondent also contested the penalties proposed by Complainant for the citations.
An executed Stipulated Settlement has been received from the parties, and this stipulation addresses all matters at issue between the parties in this proceeding. The stipulation having been read and considered it is ORDERED: (1) That the terms of the Stipulated Settlement are approved and incorporated as part of this Order; and
29 U.S.C. 661(j), will become the final order of the Commission at the expiration of 30 days from the date of docketing by the Executive Secretary, unless within that time a member of the Commission directs that it be reviewed.
Dated this 17th day of January, 1991.
SO ORDERED: __________________________ RICHARD DeBENEDETTO Judge, Occupational Safety & Health Review Commission
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
BOSTON, MASSACHUSETTS 02109-4501
IN REFERENCE TO:
Secretary of Labor v. INTERCONTINENTAL BRANDED APPAREL
OSHRC DOCKET NO. 89-2984
1. Please take notice that the accompanying order and all other papers comprising the record shall be mailed this date to the Review Commission's Executive Secretary, and shall constitute the report of this Administrative Law Judge for the purpose of 29 U.S.C. 661(j).
2. Any request for relief from clerical mistakes or errors arising from oversight or inadvertence must be in the form of a written notice (see 29 C.F.R. 2200.40). The motions should be directed to the Review Commission as follows:
Executive Secretary Occupational Safety and Health Review Commission 1825 K Street, N.W. - Room 401 Washington, D.C. 200063. The Executive Secretary shall make an appropriate referral of any request for relief.
4. The order shall become final thirty (30) days from the date of its docketing by the Executive Secretary, unless review thereof is directed by a Commission Member within that time. 29 U.S.C. 661(j).
____________________________ RICHARD DeBENEDETTO Judge, OSHRCDated: January 17, 1991 Boston, Massachusetts