"This document was published prior to the publication of OSHA's final rule on Ergonomics Program (29 CFR 1910.900, November 14, 2000), and therefore does not necessarily address or reflect the provisions set forth in the final standard."
___________________________________ SECRETARY OF LABOR, ) UNITED STATES DEPARTMENT OF LABOR, ) Complainant, ) OSHRC DOCKET ) NO. 90-1944 v. ) ) J.C. PENNEY COMPANY, INC., ) Respondent. ) ___________________________________)
STIPULATION AND SETTLEMENT AGREEMENT
I. Complainant, Secretary of Labor, United States Department of Labor, and Respondent, J.C. Penney Company, Inc., have reached a complete settlement of this matter presently pending before the Occupational Safety and Health Review Commission (hereinafter "Commission"). Accordingly, the parties hereby stipulate and agree as follows:
II. (a) The Commission has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. 651 et seq., hereinafter the "Act").
(b) Respondent is a Delaware corporation with a principal office and place of business in Dallas, Texas. Respondent operates places of business known as Catalog Distribution Centers (CDCs) in Lenexa, Kansas; Manchester, Connecticut; Milwaukee, Wisconsin; Atlanta, Georgia; Columbus, Ohio; and Reno, Nevada (a State Plan state pursuant to Section 18 of the Act). Respondent has been at all times material to this proceeding engaged in, among other things, materials handling, including maintenance or production tasks, at the CDCs. 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 (known as "associates") 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 from December 7, 1989, through approximately May 11, 1990, at Respondent'S CDC located in Lenexa, Kansas, citations and notifications of proposed penalties alleging violations of Sections 5(a)(1) and 5(a)(2) of the Act were issued to Respondent on June 1, 1990, pursuant to section 9(a) of the Act.
(d) Respondent timely contested the citations and notifications of proposed penalties.
III. (a) Complainant hereby amends Citation No. 2 by deleting any and all references to the category or characterization of the alleged violations.
(b) In order to avoid the time and expense involved in litigation, Complainant hereby agrees to withdraw Citation No. 1, items 3a and 3b. The notification of proposed penalty is also deemed withdrawn.
(c) In order to avoid the time and expense involved in litigation, Complainant hereby agrees to amend the classification of Citation No. 1, items 2a-2e from "serious" to "other than serious." The notification of proposed penalty is also amended to show that no penalty is proposed for said items.
(d) In order to avoid the time and expense involved in litigation, Complainant hereby agrees to withdraw Citation No. 1, item 1, and to issue a letter to Respondent describing the hazards observed and suggesting corrective action. Respondent hereby agrees to evaluate OSHA's suggestions and to take appropriate action. The notification of proposed penalty is also deemed withdrawn.
(e) Complainant agrees that the respective notifications of proposed penalties for citation No. 2 are hereby amended as follows:
Citation No. 2, item 1: $10,000 to $5,000; Citation No. 2, item 2: $10,000 to $5,000; Citation No. 2, item 3: $ 6,000 to $3,000.
The citation and notifications of proposed penalties are accordingly deemed amended.
(f) Respondent hereby withdraws its notice of contest to Citation Nos. 1 and 2 and the notifications of proposed penalties, as amended by this stipulation and settlement agreement. Respondent shall submit payment of the total penalty of $13,000.00 to the secretary within 30 days of this Agreement becoming a Final Order of the Commission.
(g) Complainant and Respondent agree that this Stipulation and Settlement Agreement, including the attached "J.C. Penney Company, Inc. Ergonomic Agreement," which is incorporated herein by reference, shall become a Final Order of the Commission when this Stipulation and Settlement Agreement is approved by the Commission. Included with this Agreement is a draft Order approving this settlement. The form and content of the draft Order, this Agreement, and the Ergonomic Agreement have been negotiated by the parties. The parties hereby consent to the entry of the draft Order as the final order of the Commission.
IV. In accordance with Rules 7 and 100 of the Commission, Respondent shall post a copy of this Stipulation and Settlement Agreement, including the J.C. Penney Company, Inc. Ergonomic Agreement, at the Lenexa, Kansas facility and shall post a copy of the "J.C. Penney Company, Inc. Ergonomic Agreement" at each other CDC covered by this agreement, in a place suitable for review by all affected employees.
V. It is understood and agreed by the parties that this Stipulation and Settlement Agreement, including the J. C. Penney Company, Inc. Ergonomic Agreement, constitutes a compromise of a disputed claim. The terms and conditions of that compromise for citations covered by the Ergonomic Agreement is detailed in Section 13 of the Ergonomic Agreement. With respect to additional citations not encompassed by the Ergonomic Agreement, the parties agree as follows:
This Stipulation and Settlement Agreement and any 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 of any violation of the Act.
VI. (a) In accordance with Rules 7 and 100 of the Commission, the parties agree that, based on the foregoing representations and on the terms of the Ergonomic Agreement incorporated herein, the Final Order may be issued of record showing that Respondent has withdrawn its notice of contest and entering the citations and notifications of proposed penalties, as amended, and the J.C. Penney Company, Inc. 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 proceedings.
SECRETARY OF LABOR UNITED STATES DEPARTMENT OF LABOR By: ___________________________________ Gerard F. Scannell Its: Assistant Secretary for Occupational Safety and Health David S. Fortney Acting Solicitor of Labor Tedrick A. Housh, Jr. Regional Solicitor ______________________________ Robert S. Bass Attorney Room 2106, 911 Walnut St. Kansas City, MO 64106 (816) 426-6441 Attorney for Secretary of Labor U.S. Department of Labor J.C. PENNEY, CO., INC. By:__________________________ William C. McGovern Its: Manager, Catalog Centers Operations DAVIS, GRAHAM & STUBBS By:__________________________ Roger L. Freeman Suite 4700 270 Seventeenth Street Denver, CO 80202 Attorneys for respondent
NOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVE
The attached stipulation and settlement agreement has been executed by the parties hereto, and has been submitted to the Occupational Safety and Health Review Commission for entry as a final order. If you have any comments on the stipulation and settlement agreement, you may submit them within ten days of service or posting of the stipulation to:
Judge E. Carter Botkin Occupational Safety and Health Review Commission Room 7B11, Federal Building 1100 Commerce Dallas, Texas 75242 A copy of such comments should also be sent to: Tedrick A. Housh, Jr. Regional Solicitor U.S. Department of Labor 911 Walnut Street, Room 2106 Kansas City, Missouri 64106 Served and/or posted this _____ day of ___________ 1991.
1. Introduction Definitions.
1.1 J.C. Penney Company, Inc./Catalog Division (hereinafter "J.C. Penney" or the "Company") and the U.S. Department of Labor, Occupational Safety and Health Administration (hereinafter "OSHA") recognize that work-related cumulative trauma disorders (hereinafter "CTDs") are occupational illnesses which exist in the retail catalog industry and other businesses with similar jobs. Employees in those industries have suffered work-related CTDs in the workplace. J.C. Penney and OSHA also recognize that the control of workplace CTDs is a complex and continuing process often requiring the consideration or application of a number of different control methods and technologies. These include, but are not limited to: an ergonomically safe job design which incorporates engineering controls to reduce or eliminate job-related ergonomic hazards, if any, which may be created by exposure to ergonomic risk factors (e.g., force; posture; repetition; lifting [only as a function of force, posture and repetition]; and vibration); work practice controls (e.g., proper work techniques, employee conditioning); associate and supervisory orientation, training and education; a medical management program designed for the early detection, proper medical diagnosis, treatment and follow-up care of CTDs; and administrative controls (e.g., job enlargement, rotation of employees and reducing, if feasible, the workload [causing ergonomic stressors] for an employee in a given period of time.)
1.2 As used by J.C. Penney in its business, an associate means an employee of J.C. Penney. As used in this Agreement only, "associate" means an employee of J.C. Penney performing materials handling, including maintenance or production tasks (including specifically, but not limited to, OSHA Cited Jobs as defined below), and employed at a Catalog Distribution Center.
1.3 As used in this Agreement, the "Catalog Distribution Centers" (hereinafter "CDCs" or "Covered Facilities") shall be defined as those certain five establishments, located respectively in Lenexa, Kansas; Manchester, Connecticut; Milwaukee, Wisconsin; Atlanta, Georgia; and Columbus, Ohio, owned and operated by J.C. Penney in which occurs the receipt, processing and shipping of miscellaneous merchandise ordered through the J.C. Penney catalog. The term CDC shall not include operations or establishments (whether or not under the same roof as, and/or physically attached to, a CDC) which are not directly involved in the actual receipt, processing and shipping of catalog merchandise (including, but not limited to, data centers, telemarketing centers, catalog order desks and/or retail catalog merchandise outlets). In the event that J.C. Penney purchases other catalog distribution centers, it will inform OSHA of this fact at least 90 days before it commences operations, provided public disclosure has been made. In the event that J.C. Penney completes construction of other catalog distribution centers, J.C. Penney shall provide OSHA with advance notice of such construction at least 90 days prior to the expected opening date of said facility. In either event, the Company agrees to negotiate with OSHA a new ergonomic agreement to cover any such additional facilities.
1.4 As used in this Agreement, the "CTD Citation" shall be defined as Citation No. 2, Item No. 1, and the "Medical Management Citation" shall be defined as Citation No. 2, Item No. 2, Inspection No. 106020654, issued by OSHA on June 1, 1990, addressing ergonomic "stressors" and medical management issues at the CDC located in Lenexa, Kansas.
1.5 As used in this Agreement, a "cumulative trauma disorder," or "CTD," shall refer to a class of chronic soft tissue problems of the musculoskeletal and peripheral nerve system, involving damage to, among others, the tendon, tendon sheath, synovial lubrication of tendon sheaths, or the related bones, muscles, and nerves of the hands, wrists, elbows, shoulders, neck, trunk and low back. Some of the more frequently occurring disorders in this class include carpal tunnel syndrome, lateral and medial epicondylitis, tendinitis, tenosynovitis, stenosing tenosynovitis (trigger finger), ganglionic cysts, DeQuervain's Disease, and low back pain syndrome.
1.6 As used in this Agreement, the "effective date of this Agreement" shall be deemed to occur on the date upon which an order of record is issued by the Occupational Safety and Health Commission approving the Stipulation and Settlement Agreement entered herewith as a final order of the Commission.
1.7 As used in this Agreement, "OSHA Cited Jobs" shall be defined as those jobs at the Lenexa CDC included in the CTD Citation, as well as those jobs located at other CDCs which are the same as, or so substantially similar to, the jobs at the Lenexa CDC included in the CTD Citation that the control methods developed at Lenexa will be applicable to them. "Non-Cited Jobs" shall be defined as those additional jobs at both the Lenexa CDC and other CDCs which, by virtue of the considerations described in Section 5.4.1 of this Agreement, are included within the ergonomic study described in Section 5.
2. Ergonomic Consultant/Ergonomics Committee.
The Company will develop an ergonomics program, including (1) creation of an Ergonomics Committee at each CDC and (2) retention of an ergonomic consultant, as follows:
2.1 The Company has retained a qualified consultant to perform an ergonomic analysis of associate jobs involving materials handling, including maintenance and production tasks at the CDCs; review OSHA's proposed abatement methods; provide abatement methods independent of OSHA's recommendations; and otherwise assist the Company in implementing this Agreement. If necessary, the Company agrees to retain additional consultants to satisfy this Agreement. This ergonomic consultant (hereinafter the "Consultant") shall be qualified by education, training and experience in the field of ergonomics and demonstrate expertise in engineering related to ergonomics, epidemiology, and medical surveillance. The Consultant shall be retained for the life of the Agreement. The Company shall provide a copy of the Consultant's curriculum vitae to OSHA's Director, Office of Field Programs upon the effective date of this Agreement.
2.2 Within 1 month from the effective date of this Agreement, J.C. Penney will establish at each CDC an Ergonomics Committee (hereinafter "EC"). The EC will assist the Company in the implementation of the ergonomics program and in obtaining associate input regarding the ergonomic program, and each EC shall be involved in the review and followup of the program as a whole, as further provided in this Agreement. The EC shall meet as often as necessary, but at least once every two months.
2.3 The EC will be comprised of a cross-section of J.C. Penney personnel who are to become knowledgeable about ergonomic risk factors which may exist in their respective departments. Specifically, the EC, at minimum, will consist of a medical staff representative; an engineering representative familiar with ergonomics; a representative of the personnel department; a loss prevention representative; a representative of CDC's operations department; a returns department representative; and two non-management associates, who will serve staggered terms (of at least 6 months duration) and be selected on a rotating basis from Safety Team members.
2.4 The EC will serve as a vehicle for identifying and discussing ergonomic matters throughout the CDC and providing direct communication from associates to Company management. Each EC member will channel information to the EC obtained through their day-to-day responsibilities; their participation in other safety and health-related committees within the plant, such as the Safety Committee, associate representative meetings, Quality Circle, and Safety Team; their direct communications with associates; and other channels. In addition, the personnel department representative will channel to the EC any anonymous associate comments relating to ergonomics received by the Company. EC meetings will be devoted to reviewing all pertinent comments and concerns directed to the committee through each individual member. The EC will weigh factors and considerations surrounding ergonomic and CTD matters and make appropriate recommendations to the CDC Manager for further evaluation. Proposed ergonomic projects developed by the EC and proposals for modifications to present workplace layouts will be directed to J.C. Penney Corporate Catalog Engineering Staff for evaluation and testing (if necessary) prior to any implementation decision. The Corporate Catalog Engineering Staff will be responsible for further communicating to the Consultant and other appropriate Catalog Management information and proposals raised by the EC.
2.5 While ultimate decisionmaking authority on the implementation; including the feasibility, of any controls proposed by the DC will rest with J.C. Penney, with input from the Consultant as discussed in this Agreement, the EC will serve as a vehicle for bringing before Company management those ergonomic issues which surface through the many safety and related programs and committees at the CDCs. As appropriate, in addition to other direct associate communications deemed necessary by the Consultant to perform his duties under this Agreement, the Consultant may attend selected EC meetings or otherwise directly interact with EC members. The Consultant shall assist the Company in its evaluation of suggestions and points raised by the EC. The EC may hold joint sessions or otherwise ask for further interaction with Safety Teams or other committees to discuss ergonomic issues in the CDCs.
3. Reporting/Periodic Meetings.
3.1 Quarterly reports shall be submitted for the life of this Agreement. The reports shall describe the status of J.C. Penney's implementation of the programs required under this Agreement, including the actions taken by J.C. Penney at each CDC during the period since the last report. The reports shall include, when applicable, such information as the number of associates receiving training; the extent to which engineering and administrative controls or work practices have been evaluated and implemented; and the status of the medical management program (including the number of associates treated for CTDs and the types of treatment received, which information shall be submitted semi-annually). The Company shall describe in these reports those CTD controls, if any, implemented since the prior report and may provide photographs or videotaped demonstrations of new controls or work methods. The last of these reports shall provide a SUMMARY of all measures taken under this Agreement. This submission shall be deemed J.C. Penney's final program report (hereinafter the "Final Submission"). These reports shall be provided to OSHA's Director, Office of Field Programs (hereinafter "OFP"), as well as to each OSHA Area Director having jurisdiction over the CDCs covered by this Agreement.
3.2 The parties shall meet on a semi-annual basis, or at any longer interval later determined by the parties to be more appropriate, for the term of this Agreement to discuss the Company's progress in dealing with CTDs. It is recognized by the parties that these meetings will likely be most productive if scheduled around steps required under this Agreement, such as J.C. Penney's filing of reports and implementation of significant controls. Accordingly, the parties may reschedule any meeting to better account for the timing of program steps required under this Agreement. The contact persons for initiation of such meetings shall be J.C. Penney's Manager of Catalog Centers Operations (William McGovern or his successor), on behalf of J.C. Penney, and the Director, OFP, for OSHA.
3.3 Within 15 days of the execution of this Agreement, J.C. Penney shall provide OSHA's Director, OFP, with the name of a contact person(s) from each CDC covered by this Agreement (which may be the committee chairperson of the EC referenced below), each of whom shall meet with the appropriate OSHA Area Director, at approximately the time that the first quarterly report is filed, to discuss activities under this Agreement. In addition, at the time an EC is established at each CDC as required under Section 2 of this Agreement, the name and title of the committee chairperson of each EC shall be provided to each OSHA Area Director having jurisdiction over the Covered Facilities.
4. Historical Analysis/Monitoring.
The parties agree that an analysis of present CTD conditions would be useful to monitor the Company's efforts to address CTDs, identify study areas and otherwise develop programs required under this Agreement. Accordingly:
4.1 Within 3 months of the effective date of this Agreement, J.C. Penney shall, at each CDC, develop and provide to each OSHA Area Director having jurisdiction over a Covered Facility, and the Consultant, a listing of (1) CTD illnesses from calendar years 1989 and 1990, based on the OSHA 200 log, 101-equivalent forms and any other relevant data; and (2) where available from these logs, forms, and any other relevant data, the department and job title at which each associate was working both at the time of diagnosis and immediately prior thereto (if the associate has changed jobs), the length of time the associate has worked at the CDC, the type of CTD diagnosed and the activity in which each associate was engaged at the time of diagnosis. In compiling this information, J.C. Penney may use associate identification numbers or a similar identification system which ensures anonymity to associates and ready access to necessary information by OSHA and the Company. The purpose of this report is to provide baseline information and to apprise the parties from a statistical standpoint, as well as possible from available information, of the operations and positions within the CDCs which may constitute Non-Cited Jobs as well as providing a baseline for associates working on the OSHA Cited Jobs.
4.2 OSHA intends to conduct monitoring inspections regarding implementation of the Agreement at the CDCs. The purpose of these monitoring activities will be to determine compliance with the Agreement. The terms and restrictions of Section 11 of this Agreement, governing entry onto Company facilities shall apply to these monitoring activities.
5. CTD Study
5.1 The Company and Consultant shall conduct an investigation, including an ergonomic analysis and records review, of the incidence, prevalence and causes of CTDs in all OSHA Cited Jobs and Non-Cited Jobs at its CDCs. An on-site ergonomic analysis of the processes which are causing or likely to cause CTDs shall be conducted by the Consultant in order for the Company to identify feasible engineering and administrative controls. This analysis (hereinafter the "Study") shall include: (1) evaluation of processes with regard to work positions, practices, and equipment to identify risk factors (e.g., force; posture; repetition; lifting [only as a function of force, posture and repetition]; and vibration); (2) identification of feasible control methods which the Consultant believes may eliminate or significantly reduce identified ergonomic stressors; (3) recommendation of currently existing jobs at the CDCs which may constitute potential alternate duty jobs, (for use in implementing medical management procedures described in Section 6.8 of this Agreement). This analysis shall also consist of an evaluation of the information from the OSHA 200 logs, 101-equivalent forms, medical records, and other relevant information provided by each CDC pursuant to Section 4.1 of this Agreement, as well as a review of those written questionnaire forms described further in Section 6.4 of this Agreement. The Consultant shall also obtain and consider input in conducting the Study from associates, and the EC, at each CDC. The Consultant shall assist the Company in its evaluation of all recommendations made by the EC at each CDC.
5.2 It is J.C. Penney's current plan to conduct the Study at the Lenexa, Kansas CDC in order to develop a pilot ergonomics program for jobs performed at other CDCs which are the same as, or substantially similar to, jobs performed at the Lenexa CDC. J.C. Penney reserves the right to conduct portions of the Study or pilot program at any of its other CDCs (hereinafter "Other Study Areas") as well, provided the Company will continue to give priority to the OSHA Cited Jobs, in the manner described in Section 5.3 of this Agreement.
5.3 OSHA Cited Jobs: The Company and the Consultant shall give priority to the evaluation and ergonomic analysis of OSHA Cited Jobs. The portion of the Study addressing OSHA Cited Jobs shall include an evaluation of OSHA's recommendations for abatement identified in the CTD Citation, but the Company and Consultant need not afford priority or give additional weight to OSHA's recommendations for abatement in identifying or testing engineering or administrative controls. The Company agrees to give priority to the evaluation and implementation of feasible engineering controls. The Consultant may also identify measures that have been implemented prior to performance of the Study, and evaluate their expected impact in identifying any necessary further controls. J.C. Penney shall evaluate, test (if necessary), prioritize and implement all feasible engineering and administrative control methods identified in the Study necessary to significantly reduce or eliminate ergonomic stressors that the Consultant considers to be CTD risk factors on the OSHA Cited Jobs. J. C. Penney agrees to implement feasible engineering and administrative controls in a logical progression as soon as they have been identified and, if necessary, tested. Identification and testing, where necessary, at the Lenexa CDC and Other Study Areas of control methods for the OSHA Cited Jobs shall be completed within 24 months of the effective date of this Agreement. Feasible control methods shall then be implemented in accordance with the terms of this Agreement, but no later than 2 1/2 years after the effective date of this Agreement.
5.4 Non-Cited Jobs:
5.4.1 J.C. Penney will also include within the Study all Non-Cited Jobs, which shall include: (a) those materials handling operations identified as possessing CTD risk factors by the Consultant's preliminary ergonomics analysis, which for some jobs may consist of only a preliminary assessment, and review of information compiled from the OSHA 200 logs, 101-equivalent forms, medical records, associate questionnaire forms and other relevant information; and (b) other jobs of concern raised by the EC at each CDC. The consultant shall analyze any jobs not previously analyzed which the EC identifies as possessing CTD risk factors. To the extent that CDCs, apart from the Lenexa CDC, contain tasks or operations other than or in addition to those which exist at the Lenexa CDC, the Consultant shall review and include said jobs within the Study based on the criteria contained in this section 5.4.1.
5.4.2 Through performance of the Study, the Consultant and Company shall identify engineering and administrative controls for these Non-Cited Jobs. The Company agrees to give priority to the evaluation and implementation of feasible engineering controls. The Consultant may also identify measures that have been implemented prior to performance of the Study, and evaluate their expected impact in identifying any necessary further controls. J.C. Penney shall evaluate, test (if necessary), prioritize and implement all feasible engineering and administrative control methods identified in the Study necessary to eliminate or significantly reduce ergonomic stressors that the Consultant considers to be CTD risk factors. Identification at the Lenexa CDC and Other Study Areas of control methods on these Non-Cited Jobs shall be completed within 2 1/2 years of the effective date of this Agreement. Testing of potential controls at the Lenexa CDC and Other Study Areas shall be completed within 3 years of the effective date of this Agreement. Feasible controls shall then be implemented in accordance with the terms of this Agreement, but no later than 3 1/2 years after the effective date of this Agreement.
5.5 J.C. Penney shall educate and train associates working on OSHA Cited jobs and Non-Cited jobs about the Controls to be implemented on their jobs as necessary to help ensure the effectiveness of the controls. This training shall be in addition to the training that J.C. Penney performs pursuant to Section 7 of this Agreement. Where a component of the job has been changed, currently working associates and newly assigned associates shall be given training on the proper way to perform the job and the opportunity, to the extent necessary, to become accustomed to any new work methods.
6. Medical Management Program. This section applies to all CDCs covered by this Agreement.
6.1 J.C. Penney represents that it is beginning to take steps to develop at its CDCs an effective medical program aimed at providing proper medical care and treatment relating to CTDs for all associates.
6.2 J.C. Penney agrees to continue to build on current efforts to detect at the earliest possible time the symptoms associated with CTDs and to continue to build at each CDC its program of medical prevention, treatment and follow-up of CTD illnesses.
6.3 J.C. Penney agrees to establish and implement the medical program described in this section at the Lenexa, Kansas facility within 6 months of the effective date of this Agreement and at all other covered facilities within 9 months of the effective date of this Agreement. The medical program described in this section will be designed to permit the early and proper medical diagnosis, treatment, and proper follow-up care of CTD illnesses, at each CDC. The program shall include provisions for the prompt evaluation of symptoms and for the training of all medical department staff according to the terms and schedule provided in Sections 7.1 of this Agreement.
6.4 A physical assessment questionnaire shall be developed by the Consultant directed at measuring frequency of symptoms in the upper extremities, neck, trunk and low back among associates. The questionnaire will be administered by qualified personnel to all associates at the covered facilities within 6 months of the effective date of this Agreement. This questionnaire shall be designed to augment J.C. Penney's current baseline knowledge of associate symptoms of work-related CTDs. J.C. Penney shall utilize a uniform questionnaire consisting of specific questions for associates, the results of which may be collected and processed by automated process (e.g. computer). Results shall be provided to OSHA's Director, OFP.
6.5 The medical department staff shall conduct workplace walk-throughs periodically, as operations and workplace conditions change, to remain knowledgeable about the ergonomic content of jobs and assist in identifying alternate jobs appropriate for associates as described in Section 6.8. Those medical department staff members who serve on the EC at each CDC will be involved through EC activities in identifying risk factors for CTDs in the workplace.
6.6 J.C. Penney represents that its medical department has long applied a number of important criteria in preventing, diagnosing and treating any CTDs. J.C. Penney agrees to reduce to writing its medical management criteria for the treatment of CTDs within 3 months of the execution of this agreement. J.C. Penney agrees that its written medical management criteria will include the following basic elements:
6.6.1 Standardized and proper musculoskeletal physical examinations, taking of medical history information and use of recording forms. The examination will include inspection, palpation and range of motion testing. The physical examination shall be administered to any associate presenting objective signs or symptoms related to CTDs.
6.6.2 Treatment of associates with positive physical signs on examination as well as those with symptoms but no physical signs.
6.6.3 In accordance with directions from an authorized treating physician who has been given by the Company available information on the ergonomic content of the job performed by the associate, properly applied preventive and supportive wraps may be used so long as the wrap does not exacerbate the associates' CTD- related condition or place undue ergonomic stress on another part of the body. Rigid splints or casts will be used during working activities only if it is determined by an authorized treating physician or outside physician retained by an associate that no harmful deviation or bending of the splinted or casted limb is required on the job and that the use of the splint or cast will not adversely affect any part of the body. Notwithstanding the above, the Company agrees that it will review the use of splints with any treating physician who prescribes or authorizes the use of a splint during work if the Company or the Consultant believes the use of a splint would not be in the best medical interests of the employee. Nevertheless, the final decision with respect to the use of a splint during work rests with the authorized treating physician and the Company agrees to follow any medical restrictions imposed by an authorized treating physician, including the use of a splint during work. The Company agrees to maintain written documentation of the treatment and work restrictions recommended by an authorized treating physician who treats an employee for a work-related CTD.
6.6.4 Follow-up examinations will be scheduled by the medical department to allow reevaluation of associates who report CTD symptoms. Appropriate supervisors shall be notified of associates who have follow-up examinations scheduled. The time for the follow-up examination shall be within the discretion of the medical department but, absent circumstances which are beyond the control of the Company, shall be no more than three working days from the initial examination. A "working day" is a day on which the employee is both regularly scheduled to, and actually does, work. If symptoms are still present without change, or they are not improved, a further evaluation shall be conducted in no more than three additional working days, absent circumstances beyond the control of the Company. If the condition is unchanged, or worse, at the second follow-up evaluation, the associate shall be referred to an authorized treating physician. If the associate exhibits positive physical signs at any time, the associate shall be referred to an authorized treating physician. The medical department will continue to stress to the associate and his/her supervisor the importance of keeping follow-up appointments.
6.6.5 All recommendations for surgery for CTDs will be referred for a second opinion, where permitted by applicable state law.
6.7 All available information regarding an associate's medical status will serve as a data base to which the medical department will refer if an associate complains of CTD-related symptoms. Historical medical records will include any information obtained from associates after completing the physical assessment questionnaire, as described in Section 6.4 of this Agreement. Associates and their authorized representatives shall have unrestricted access (i.e., the right to examine and copy) to their own medical records during regular business hours, under conditions provided by law.
6.8 Alternate duty associates will be placed in appro- priate jobs consistent with that associate's medical restrictions, capabilities and limitations. Decisions on such restrictions will be made based upon the authorized treating physician's medical instructions/restrictions and input from J.C. Penney medical and other personnel. Only J.C. Penney personnel who have been fully trained pursuant to the terms of the Agreement and informed of the ergonomic content of the job will be permitted to authorize assignment to an alternate duty job. The placement procedure for alternate duty jobs shall be as follows:
1. A medical restriction will be issued describing to the greatest extent possible the motion or activity that is to be avoided or reduced.
2. J.C. Penney personnel responsible for placement of an associate shall be familiar with the elements of a job, including the ergonomic content, prior to assignment of any associate with a medical restriction. The list of potential alternate duty jobs developed by the Consultant, as described in Section 5.1, shall serve as a reference tool in identifying potential alternate jobs for that associate. Further discussion with the Consultant on specific ergonomic matters relating to individual jobs will be conducted if necessary.
3. Associates shall be placed in jobs in accordance with their medical restrictions.
4. J.C. Penney medical personnel, with input where appropriate from other J.C. Penney personnel noted above, shall be responsible for follow-up with that restricted duty associate. Only an authorized treating physician may remove a physician-ordered medical restriction.
5. Associates may request reevaluation of their medical restrictions or job assignment, if a problem occurs in performing the activities of the assigned job.
6.9 J.C. Penney will continue to build upon its program of ongoing treatment of associates with musculoskeletal complaints. Associates will continue to be educated from the outset of their employment at J.C. Penney that all occupational injuries and illnesses must be promptly reported to the appropriate personnel, including the medical department. J.C. Penney agrees that it will not implement any program which directly discourages the early reporting of CTD symptoms. The medical department will encourage associates to report their progress periodically to the medical department and will follow up on associates who are being treated for CTD illnesses until the problem has been resolved. There shall be no limit on the number of times an associate may visit the medical department unless it is determined, on a case-by-case basis, to be unreasonable.
7. Training and Education
7.1 Medical Department Staff Education and Training. J.C. Penney agrees to design and implement, or provide through outside parties and/or the Consultant, a CTD education and training program for medical department staff at each CDC that renders medical care related to CTD. The education and training program for medical department staff shall consist of the education and training given to all associates and supervisors as well as the following specific elements. Referrals will be made only to outside medical personnel competent to diagnose and treat CTD. The company agrees to provide to OSHA on a semi-annual basis the names of all outside medical personnel to whom those associates will be referred.
7.1.1 The program shall include the normal anatomy of the upper extremities. The Company's program and protocols developed pursuant to Section 6.6 for identification, assessment, treatment, restrictions, referral, and follow-up of CTDs will be covered.
7.1.2 All medical department staff that render medical care related to CTD will also receive an introduction to ergonomics which will include the potential benefits of good job design, identifying priority problem jobs, evaluation of job stressors, and developing and implementing ergonomic solutions.
7.1.3 J.C. Penney shall authorize representative medical department personnel to attend appropriate education and training conferences that address CTD. Additionally, educational tools such as conferences and tele-conferences shall be utilized whenever feasible. Where practical, conference proceedings will be videotaped and made available to medical personnel who do not attend the conference.
7.1.4 A medical department education and training program will be established, and J.C. Penney will implement said program, within 6 months of the effective date of this Agreement at the Lenexa, Kansas facility and within 9 months of the effective date of this Agreement at all other covered facilities.
7.2 Associate Education and Training. J.C. Penney agrees to design and implement an ergonomics awareness, education and training program for associates, including immediate and general supervisors and industrial engineers, at all CDCs covered by this Agreement. Except as provided in Section 7.2.5, this program will be provided to all associates within 9 months of the effective date of this Agreement. The program shall include:
7.2.1 General ergonomics awareness training sessions of at least one hour in length for all associates including the opportunity for questions and answers. The training will be administered to newly hired associates during new-hire orientation, or as soon as practicable thereafter. This training may involve the use of videotapes on CTDs. In such event, the Company agrees to have a competent person available to answer questions.
7.2.2 The training and education program will include a general introduction on ergonomics including the topics of force, repetition and posture. The program shall also include the etiology and recognition of CTD symptoms, positions which are proper and positions which may exacerbate or create a CTD, the existence of the EC and the need to report early CTD symptoms to the facility medical department.
7.2.3 All newly hired and transferred associates that are assigned to OSHA Cited Jobs or Non-Cited Jobs will be informed on the proper use, from an ergonomic standpoint, of the tools and equipment required to be used in the performance of their assigned duties. This training may be provided in conjunction with regular orientation for new hires or transferees.
7.2.4 J.C. Penney shall review with associates the application of ergonomic principles to the prevention of CTDs on a periodic basis during regular safety talks, and other appropriate times.
7.2.5 As provided in Section 5.5, associates shall receive job-specific training about controls to be implemented as necessary to help ensure their effectiveness. In addition to, or, as appropriate, in combination with, the training provided to associates under Section 5.5, those associates working at OSHA Cited Jobs will receive a minimum of one-half hour of job-specific ergonomics training, which shall address methods of controlling CTD stressors, the proper use of equipment, and other CTD reduction practices. Such job-specific training on OSHA Cited Jobs shall be provided as soon as possible after the date upon which the Study, as described in Section 5, is finalized, but in no event later than at the time that feasible controls are implemented for that particular job. If determined to be necessary by J.C. Penney and the Consultant, such job-specific training shall also be provided to associates working at Non-Cited Jobs within the same time frame as provided for OSHA Cited Jobs.
8. Treatment of Confidential Material
8.1 It is understood that the Study, status reports, Final Submission and all other reports, studies, data or other documents generated under this Agreement shall be deemed to be confidential matter and handled as such pursuant to Section 15 of the Act (29 U.S.C. ? 664), 18 U.S.C. ? 1905, and 29 C.F.R. ? 1903.9 (1989).
9. Term of Settlement Agreement
9.1 This Agreement shall commence as of its effective date, as defined in Section 1.6 of this Agreement, and shall continue for four and one-half (4 1/2) years. Thereafter, it shall continue in effect unless either OSHA or J.C. Penney provides 60 days' notice of termination.
10. State Plans
10.1 J.C. Penney and OSHA recognize that one of the catalog distribution centers operated by J.C. Penney is located in the State of Nevada, which has assumed authority for the enforcement of OSHA standards pursuant to Section 18 of the Occupational Safety and Health Act (hereinafter the "Act").
10.1.1 The State of Nevada is encouraged to honor or agree to the terms of this Agreement, and to this end OSHA agrees to contact appropriate Nevada officials to inform them of the terms of this Agreement. It is also J.C. Penney's intent to notify and/or meet with appropriate Nevada officials to attempt to execute an agreement for the Reno, Nevada CDC similar to this Agreement.
11. Dispute Resolution.
The Company shall, in conjunction with the quarterly reports, notify OSHA if the Company finally determines, with the assistance of the Consultant that (i) jobs cited by OSHA do not present an ergonomic hazard; (ii) the ergonomic hazards cited by OSHA have been abated; or (iii) control measures identified by OSHA in the citation or alternative controls identified by the Consultant are not feasible. If the Secretary disagrees with the Company's determination of (1) whether a cited job presents ergonomic hazards; (2) whether the cited ergonomic hazards have been abated; or (3) the feasibility of recommended abatements, 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 and the Company will then engage in good faith discussion or exchange further written information to resolve the disagreement. If the parties are unable to resolve their differences, OSHA will, in writing, notify the Company 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 consistent with the provisions set forth in this Agreement.
12. Entry Onto Company Facilities
J.C. Penney agrees to allow OSHA access to each of its CDCs covered by this Agreement and to appropriate records to monitor progress and compliance with this Agreement and to conduct compliance inspections under the Act. OSHA agrees that, assuming continued implementation of the Agreement by J.C. Penney, it shall not conduct general schedule inspections as to ergonomics and medical management issues. OSHA also retains the right to conduct all other types of inspections permitted under the OSHA Act. The Secretary agrees that OSHA will not issue citations or take any enforcement action against J.C. Penney for any ergonomic or medical management conditions at the CDCs, unless J.C. Penney is determined by OSHA not to be implementing this Agreement in good faith.
13. Compromise of a Disputed Claim
It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. This Agreement is being entered into solely to avoid further litigation and expense to the parties. J.C. Penney specifically denies any and all allegations that it violated the Act. Nothing in this Agreement, including the Agreement itself, its execution, as well as any final Commission Order approving this Agreement, is an admission or evidence, nor is it to be construed as an admission or treated as evidence, of any fact or of any violation of the Act by J.C. Penney. This Agreement, statements and actions taken herein shall not be used or admitted in evidence in any litigation or other proceeding, or used for any other purpose, except for further proceedings brought by the Secretary under the Act. In particular, nothing in this Agreement is to be construed as an admission by J.C. Penney that it has acted in a manner that is detrimental to the safety or health of its employees, or that it has acted with plain indifference toward the safety or health of its employees, or that a specific associate's CTD is work-related or that J.C. Penney's current approach to and program for addressing any CTDs at its CDCs or has been at any time in violation of the Act, except for further proceedings under the Act. Finally, certain aspects of this settlement may be considered or implemented on a facility-wide basis, covering areas in which no violations have been cited or found and no ergonomic review was deemed warranted by OSHA. Such facility-wide consideration or implementation shall not be deemed or construed as an indication or recognition of any possible violations or CTD incidences in those areas, nor as an admission of any violation of any law or regulation or of liability for any purpose other than further proceedings under the OSHA Act.
14. Extensions of Time
J.C. Penney shall make a good faith effort to complete the programs and reports required under this Agreement within the time frames set forth in this Agreement. If, despite such good faith effort by J.C. Penney, it is unable to meet the time periods identified in this Agreement, it may file a petition for modification of the dates set forth in this Agreement. The filing, review, and approval of any such petition for modification shall comply with and be governed by the provisions of Rule 37 of the Rules of Procedure of the Commission. While J.C. Penney retains the burden of establishing the need for an extension of time, so long as J.C. Penney exhibits continued good faith implementation of this Agreement, any such request shall be viewed favorably by OSHA.