___________________________________ ) ELIZABETH DOLE, ) SECRETARY OF LABOR, ) UNITED STATES DEPARTMENT OF LABOR, ) ) Complainant, ) ) v. ) OSHRC Docket Nos. 87-0635 ) and 88-2522 JOHN MORRELL & CO., ) SIOUX FALLS PLANT, and its ) Region VII successors, ) Respondent. ) ___________________________________) ) UNITED FOOD & COMMERCIAL WORKERS, ) LOCAL 304A, AFL-CIO, ) ) Authorized ) Employee ) Representative. ) ___________________________________)
The parties, JOHN MORRELL & CO., SIOUX FALLS PLANT ("Morrell" or "the Company") and its successors; the SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR ("the Secretary" or "OSHA") ; and the UNITED FOOD & COMMERCIAL WORKERS, LOCAL 304A, AFL-CIO ("the Union"), by their undersigned representatives, have reached a full and complete settlement of OSHRC Docket Nos. 87-0635 and 88-2522 under 29 C.F.R. 2200.100, the Occupational Safety and Health Review Commission's ("Commission") procedural rule on settlement. Accordingly, the parties state as follows: A. Jurisdiction/Amendments/Procedural Matters
1. The Commission has jurisdiction of these matters under 29 U.S.C. 659(c), Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").
2. The parties move, pursuant to the Commission Rule at 29 C.F.R. 2200.9, that these matters, OSHRC Docket Nos: 87-0635 and 88-2522, be consolidated for purposes of settlement. The two matters have common parties and involve the same overall worksite.
3. The Secretary amends the Citations and proposed penalties in OSHRC Docket Nos. 87-0635 and 88-2522 as follows:
(a) The characterization of Citation No. 5 in OSHRC Docket No. 87-0635 is amended to "other" than serious, and the proposed penalty for OSHRC Docket No. 87-0635 is amended to $0.00.
(b) Citation No. 1 in OSHRC Docket No. 88-2522 is amended to delete all characterizations. The total proposed penalty for OSHRC Docket No. 88-2522 is amended to $990,000. Citation No. 1 is amended further by the terms of this Agreement as a whole (hereinafter "Citation No. 1"). In addition to the proposed Penalty, as amended, Morrell will give a grant to the National Institute for Occupational Safety and Health ("NIOSH") in the amount of $260,000 for the continuing study of musculoskeletal injuries by NIOSH.
(c) Within thirty days of the Commission's Final Orders in these matters, Morrell promises to pay one half of the proposed penalty, as amended, set forth at Paragraph 3(b) above. The payment shall be made to "OSHA-Labor". Within the same thirty-day period, Morrell will make the grant to NIOSH also set forth at Paragraph 3(b) above. The remaining one half of the proposed penalty, as amended, shall be paid within six months of the date of the first payment to OSHA referred to in this Paragraph 3(c).
4. The parties agree to bear their own attorneys' fees, costs, and other expenses that have been incurred in connection with any stage of these proceedings up to and including the filing of this Agreement and entry of the Final Orders in these matters.
5. The parties agree that this Settlement Agreement shall become a Final Order of the Commission. Included with this Agreement is a draft order approving this settlement. The form and content of this draft order and this Agreement have been negotiated by the parties. The parties hereby consent to the entry of this draft order so that the litigation of these matters may be brought to an end.
6. Morrell withdraws its Notice of Contest to the Citation in OSHRC Docket No. 88-2522. This withdrawal, however, is made solely to facilitate the settlement of this matter. It does not qualify and is not to be interpreted as being inconsistent with Paragraph 32 below.
7. For purposes of service and notice, Morrell certifies that the original Notices of Contest as well as all pleadings in OSHRC Docket Nos. 87-0635 and 88-2522, including a copy of this Agreement, have been served on affected employees at the Sioux Falls Plant in accordance with the Commission Rule at 29 C.F.R. 2200.7.
8. There are no items in either OSHRC Docket No. 87-0635 or OSHRC Docket No. 88-2522 that remain to be decided by the Commission. B. Steps to Address the Ergonomic Conditions in Citation No. 1. OSHRC Docket No. 88-2522 9. General Recognition and Definitions.
(a) Morrell and OSHA recognize that cumulative trauma disorders are occupational illnesses in the meat packing industry, as well as in other industries with similar types of jobs. The parties also recognize that methods to materially reduce or eliminate the ergonomic stressors related to CTD can be complex. Such methods may require the application of a number of different control technologies such as engineering controls to materially reduce or eliminate job-related ergonomic stressors related to cumulative trauma disorders, e.g. force, position, repetition and vibration; employee and supervisory training and education; early recognition of the problem; early and proper medical diagnosis, treatment and care follow-up; and administrative controls such as job enlargement, rotation and rest pauses. The ergonomic program set forth in this Agreement is intended to materially reduce or eliminate the ergonomic stressors related to the cumulative trauma disorders that may arise from the Production Jobs, as defined below.
(b) The term "cumulative trauma disorders" ("CTD") is defined in Attachment B appended to this Agreement and includes those medical disorders of the upper extremities defined by specific criteria and associated with certain work activities (such as repetitive motion). Examples of these types of disorders include tenosynovitis, carpal tunnel syndrome, cubital tunnel syndrome, stenosing tenosynovitis of the fingers, and epicondylitis.
(c) In addition to those 171 production jobs that are the subject of Citation No. 1, Morrell estimates that there are approximately 700 other production jobs in the beef and pork production and processing areas at its Sioux Falls Plant. In this Agreement, these approximately 871 jobs shall be referred to collectively as "Production Jobs".
(d) The 171 Production Jobs that are the subject of the Citation No. 1 shall be referred to collectively as the "Cited Jobs" and are addressed in this Section B of the Agreement. The approximately 700 remaining Production Jobs shall be referred to collectively as "Non-Cited Jobs" and are addressed in Section C of this agreement.
(e) The Cited Jobs shall be divided into two categories:
(1) for 66 jobs, which are listed in attachment A appended to this Agreement, Morrell, with the advice and guidance of the the Ergonomic consultant, is to conduct an analysis to determine whether those jobs expose employees to ergonomic stressors related to CTD ("Attachment A Jobs"); and
(2) the remainder of the Cited Jobs are jobs which have been identified by OSHA in Citation No. 1 as jobs that expose employees to ergonomic stressors related to CTD ("Ergonomic Stressor Jobs").10. Ergonomic Consultant. Morrell has retained or employed one or more person(s) (or company) qualified by education and experience about ergonomics ("Ergonomic Consultant") and has begun a program at its Sioux Falls Plant to address ergonomic stressors related to the various types of upper extremity cumulative trauma disorders. Within thirty days of the entry of the Commission's Final Order in this matter, Morrell will confirm that an Ergonomic Consultant will be retained for a period of at least four years from the date of the Commission's Final Order in this matter. The Ergonomic Consultant will assist Morrell in performing an ergonomic analysis of certain jobs and in developing and implementing an ergonomic program as discussed in this Agreement.
11. Attachment A Jobs - Determining Ergonomic Stressors Related to CTD. The program for analysis of the Attachment A Jobs shall proceed as follows:
(a) Recognizing that the ergonomic stressors related to CTD may vary from Attachment A Job to Attachment A Job, Morrell, with the advice and guidance of the Ergonomic Consultant, will conduct both an incident analysis and an ergonomic analysis for such Attachment A Jobs as set forth in subsections (i) through (iv) below:
(i) The incident analysis for each specific Attachment A Job will include an evaluation of the information contained in the following sources: OSHA 200 Logs, OSHA 101 forms, employee complaints, medical records and medical surveillance data maintained by Morrell, and employee input (including input from employees who hold the Attachment A Job being studied).
(ii) The ergonomic analysis for CTD for each specific Attachment A Job will include an evaluation of the ergonomic stressors for that job including anthropometry, posture, force, tools, gloves, vibration, frequency of action, as well as time between actions and related considerations. The ergonomic analysis also will include the use of survey tools such as photography (including videotape), the taking of measurements (e.g. range of motion, etc.), and employee input (including input from employees who hold the Attachment A Job being studied).
(iii) The analyses described in this Paragraph are to be completed within twelve months of the date of the Commission's Final Order in this matter. Morrell specifically notes that the information generated by these analyses may be proprietary and confidential, and thus, such information is subject to Paragraph 30 of this Agreement.
(iv) Upon completion of the analyses described in this Paragraph, each Attachment A Job determined by Morrell, with the advice and guidance of the the Ergonomic Consultant, to present an ergonomic stressor related to CTD shall be classified, for purposes of this Settlement Agreement, as an Ergonomic Stressor Job (as defined in this Agreement).
(b) The Attachment A Jobs that are determined to be Ergonomic Stressor Jobs shall be subject to the provisions of this Agreement relating to Ergonomic Stressor Jobs. Morrell will advise the Secretary and the Union how those jobs are merged in the plan or methodology for Ergonomic Stressor Jobs in the next status report.12. Ergonomic Stressor Jobs - Evaluating and Testing OSHA's Recommended Abatements. With respect to the Ergonomic Stressor Jobs, Morrell, with the advice and guidance of the Ergonomic Consultant, will design and implement an ergonomic program, which shall be in writing, to test and evaluate the OSHA recommended abatements in Citation No. 1 as follows:
(a) Within six months of the date of the Commission's Final Order in this matter, the Ergonomic Consultant (1) will review the specific OSHA recommended abatements in Citation No. 1 for each of the Ergonomic Stressor Jobs; (2) will review and evaluate those ergonomic improvements Morrell has implemented or proposed as part of its ergonomic program; (3) will conduct literature and manufacturing searches for tools, devices or other items that may reduce ergonomic stressors related to CTD; and (4) at a time and place convenient to all parties, will have a meeting with representatives from Morrell, OSHA, and the Union to give OSHA an opportunity to explain its findings and recommended abatements. Morrell then will identify, in the next status report, those Ergonomic Stressor Jobs which have been abated and those in which the ergonomic stressor identified in Citation No. 1 remains to be abated.
(b) Thirty days after the time period set forth in the step described in Paragraph 12(a), Morrell will begin to evaluate and test the specific OSHA recommended abatements for each particular Ergonomic Stressor Job as follows:
(i) Morrell will evaluate all of the OSHA recommended abatements specifically identified for a specific Ergonomic Stressor Job in Citation No. 1. Those recommended abatements specifically identified in Citation No. 1 for a specific Ergonomic Stressor Job also will be tested, if Morrell, with the advice and guidance of the Ergonomic Consultant, determines in its evaluation that a particular recommended abatement is feasible. For those OSHA recommended abatements that Morrell determines are not feasible, Morrell will state the reason or reasons for its determination in the status reports described in Paragraph 23 of this Agreement. If OSHA disagrees with Morrell's determination, OSHA and Morrell will follow the procedures set forth in Paragraph 15 of this Agreement.
(ii) As part of the testing procedure, and where appropriate, experimental work stations will be used and employee input sought and considered.
(iii) For those OSHA recommended abatements implemented, Morrell, with the advice and guidance of the Ergonomic Consultant, also will develop a method for determining the efficacy of the OSHA recommended abatements to materially reduce or eliminate ergonomic stressors related to CTD.
(iv) Morrell is first to begin testing of those OSHA recommended abatements involving engineering controls. If those engineering controls prove not to be feasible in materially reducing or eliminating ergonomic stressors related to CTD, Morrell then will test feasible OSHA recommended abatements involving administrative controls, including the appropriate combination of one or more of job rotation or enlargement or reduction of repetitive motion per employee per job. If Morrell tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs contained in the rotation must have been completed prior to implementation. The jobs to be within the ergonomic rotation are to show decreased and/or different physical demands. Nothing in this paragraph prohibits Morrell from testing administrative controls prior to, or in conjunction with, testing engineering controls.13. Implementation of the OSHA Recommended Abatements. As this ergonomic program progresses, those OSHA recommended abatements that are feasible in materially reducing or eliminating ergonomic stressors related to CTD will be implemented by Morrell. Morrell is first to begin implementation of those feasible OSHA recommended abatements involving engineering controls. If those engineering controls prove not to be feasible in materially reducing or eliminating ergonomic stressors related to CTD, Morrell then will begin to implement those feasible OSHA recommended abatements involving administrative controls. Although Morrell will implement those methods as expeditiously as possible, the implementation shall be completed within three years after the date of the Commission's Final Order.
14. Further Analysis of the Ergonomic Stressor Jobs. Nothing in this Agreement precludes Morrell or the Ergonomic Consultant from conducting a further analysis of the Ergonomic Stressor Jobs or recommending, testing or evaluating other potential methods of materially reducing or eliminating ergonomic stress. If OSHA's recommended abatements for the Ergonomic Stressor Jobs do not materially reduce or eliminate ergonomic stressors related to CTD for such jobs, Morrell will conduct such further ergonomic analysis as may be necessary and test and implement feasible methods of materially reducing or eliminating such ergonomic stressors related to CTD.
15. Procedure for Resolving Disputes. If the Secretary disagrees with Morrell's determination of (1) whether the Attachment A Jobs are Ergonomic Stressor Jobs; (2) those Ergonomic Stressor Jobs which have been abated and those Jobs in which the ergonomic stressor identified in Citation No. 1 remains to be abated; or (3) the feasibility of the OSHA recommended abatements for the Ergonomic Stressor Jobs, she will state her points of disagreement, and the reason or reasons she disagrees, in writing so that Morrell can review them with the Ergonomic Consultant. The Secretary and Morrell, with input from the Union, will then engage in good faith discussions to resolve the disagreement. This paragraph is not intended to limit the Secretary's right to use, as appropriate, enforcement methods provided by the Act.
16. Employee Input. Employee input on ergonomic or CTD issues (including potential methods of materially reducing or eliminating ergonomic stress) is, and will continue to be, considered and encouraged through the Company's Joint Employee/Management Safety Committee, through the various departmental safety meetings, and through the employee suggestion system. C. Steps to Address Ergonomic Conditions At the Sioux Falls Plant Other Than Those in Citation No. 1 OSHRC Docket No. 88-2522 17. Ergonomic Program for Non-Cited Jobs. Morrell, with the assistance of the Ergonomic Consultant, also will evaluate the approximately 700 Non-Cited Jobs to determine which, if any, of those jobs expose employees to ergonomic stressors related to CTD. The ergonomic program for the Non-Cited Jobs will proceed as follows:
(a) Incident Analysis. Within one year after the date of the Commission's Final Order, Morrell will conduct an incident analysis of the Non-Cited Jobs. The incident analysis will include an evaluation of the information contained in the following sources: OSHA 200 Logs, OSHA 101 forms, employee complaints, medical records and medical surveillance data maintained by Morrell, including available data derived from Attachment B, and employee input.
(b) Ergonomic Analysis and Testing. Thirty days after the time period set forth in Paragraph 17(a) above, Morrell will develop a plan for the ergonomic analysis of the jobs, the evaluation of any ergonomic improvements already in place or proposed, the recommendation of methods to materially reduce or eliminate CTD and the testing and evaluation of those methods as follows:
(1) For each specific Non-Cited Job, an ergonomic analysis will be performed which will include an evaluation of the ergonomic stressors for that job including anthropometry, posture, force, tools, gloves, vibration, frequency of action, as well as time between actions and related considerations. The ergonomic analysis also will include the use of survey tools such as photography (including videotape) , the taking of measurements (e.g. range of motion, etc.), and employee input. Morrell specifically notes, however, that information generated by the ergonomic analysis may be proprietary and confidential, and thus, such information is subject to Paragraph 30 of this Agreement.
(2) For those Non-Cited Jobs for which an ergonomic program is deemed necessary, Morrell will test and evaluate methods that may materially reduce or eliminate ergonomic stressors related to CTD. Morrell will first begin testing of feasible engineering controls. If such engineering controls prove not to materially reduce or eliminate ergonomic stressors related to CTD, feasible administrative controls will be tested. Such controls to be tested and evaluated will include, depending upon the type of ergonomic stressor:
(a) Engineering controls, such as re-orientation of knife or tool handles, use of adjustable fixtures or rotating cutting tables to provide for easier manipulation of meat, use of adjustable work stations or other devices (such as delivery bins) to accommodate height and reach limitations of workers.
(b) Engineering controls, such as automation, use of mechanical tools e.g. those which aid in removing bones or separating meat from bones), use of power tools, maintenance of sharp cutting edges, use of adjustable fixtures that allow movements to be made in ergonomically-sound postures.
(c) Monitoring the whizard knives to ensure that they are maintained in accordance with the manufacturer's instructions in order to avoid excessive vibration.
(d) Morrell will use its best efforts to ensure that stored meat requiring hand cutting is not frozen.Administrative Controls
(a) Administrative controls such as the appropriate combination of one or more of job rotation or enlargement or reduction of repetitive motion per employee per job or, if necessary, rest pauses, will be tested. If Morrell tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs contained in the rotation must have been completed prior to implementation. The jobs to be within the ergonomic rotation are to show decreased and/or different physical demands; or,
(b) For those jobs that have an ergonomic stressor related to CTD, new or reassigned employees will be provided on-the-job training. The training will continue until the divisional trainer or department supervisor determine either that such new or reassigned employee has the requisite ability to perform the job with proper technique or, that, notwithstanding the training, the employee does not have such ability. If such employee is determined to have such ability for the job, he or she will be required to pull full count.
(3) Those Non-Cited Jobs for which no ergonomic program is deemed necessary, if any, will be listed and the reason(s) such program is not necessary will be stated.
18. Implementation for Non-Cited Jobs. As the ergonomic program for Non-Cited Jobs progresses, those feasible methods tested and evaluated pursuant to Paragraph 17 and found to materially reduce or eliminate ergonomic stressors related to CTD will be implemented by Morrell. Morrell first will begin to implement those engineering controls that are feasible. If such engineering controls prove not to materially reduce or eliminate ergonomic stressors related to CTD, Morrell will begin to implement those administrative controls that are feasible. Morrell will implement such feasible methods of materially reducing or eliminating ergonomic stressors related to CTD as expeditiously as possible, and all such methods will be implemented within four years after the Commission's Final Order in this matter.
19. Education Program. Morrell, with the advice of the Ergonomic Consultant, will develop and implement an education program at its Sioux Falls Plant. This education program will be developed within four (4) months after the date of the Commission's Final Order in this matter and will begin promptly thereafter until completed as set forth below. The program, which will be at least 1 hour in length, will be designed to educate its employees (including its medical personnel), supervisors, engineers, and other plant management personnel on the medical aspects of CTD such as the early signs of CTD, the range of disorders (i.e., what they are), causes of these disorders, means of prevention, and the importance of early reporting of symptoms of CTD. The program will include a description of the ergonomic program and the ergonomic work taking place in the Sioux Falls Plant so that employees will be familiar with it. The program also will include a portion designed to educate employees about knife maintenance, tool preparation and the postures or other activities that may create an ergonomic stressor related to CTD in their jobs. All new employees will be given such education during orientation. Each month, groups of those employees then holding Cited or Noncited Jobs (with priority being given to those in Cited Jobs) will be provided such education until all of the approximately 2000 such employees have been educated. All such employees will be provided this education within twelve months of the date of the Commission's Final Order in this matter. Thereafter, each calendar year for the term of this Agreement, such employees will receive refresher training once each quarter as part of the regularly scheduled departmental safety meetings. At least one such quarterly meeting a year will be at least thirty (30) minutes in length.
20. Training Program. Within six months from the date of the Commission's Final Order in this matter, Morrell, with advice of the Ergonomic Consultant, will establish a training program for new and reassigned workers at Morrell's Sioux Falls, South Dakota plant who are to begin working in Production Jobs involving the use of knives as follows:
(a) After orientation, which includes the education program described in Paragraph 19, each such new or reassigned employee will receive a demonstration of the applicable knife and equipment to be used as well as classroom training on the following subjects:
(1) knife care and maintenance;
(2) hazards of improper knife handling;
(3) types of knives associated with individual work duties; and,
(4) tools and devices associated with individual work duties.
(b) New employees also will be familiarized with applicable safety procedures including glove and equipment rules. The classroom training will be conducted by divisional trainers who will be management personnel and who will be excluded from production or production supervision responsibilities during the training periods set forth in this Paragraph 20.
(c) Following the classroom training, such new or reassigned employees shall be assigned to work with a qualified co-employee who will provide on-the-job training. This on-the-job training will be monitored by the divisional trainer and the departmental supervisor at regular intervals. During this on-the-job training, the divisional trainer will work with employees on the production line or, if needed, in additional classroom training. Each such new or reassigned employee, at his or her option, may request his/her divisional trainer for more classroom training. The training will continue until the divisional trainer and department supervisor determine either that such new or reassigned employee has the requisite ability to perform the job with proper technique or, that, notwithstanding training, the employee does not have such ability. During the on-the-job training period, the co-employee shall not be expected to meet the same production standard as other qualified employees on the same job that do not have training responsibilities. If such new or reassigned employee is determined to have such ability for the job, he or she will be required to pull full count.
(d) The training described above will be designed to emphasize the need to develop safe and efficient work techniques before an employee is expected to pull full count.21. Medical Management Program.
(a) Within thirty days of the Commission's final order, Morrell will retain a medical consultant(s) knowledgeable about CTD to develop a medical management program for work-related CTD at the Sioux Falls Plant ("Medical Consultant"). Morrell agrees to retain the Medical Consultant for its Sioux Falls Plant for at least four years from the date of the Commission's Final Order in this matter.
(b) Attachment B, which is appended to this Agreement and incorporated into it by reference, sets forth the basic medical management program that Morrell will implement and the times by which it will be implemented.D. Sioux City, Iowa, Plant 22. State of Iowa Agreement. Pursuant to an agreement with the State of Iowa, Morrell has developed an ergonomic program for its Sioux City, Iowa plant. Morrell has been implementing its ergonomic program at Sioux City. Outside the scope of any abatement obligation under this Agreement with the Secretary, however, Morrell intends to use an ergonomic program outlined in this Agreement, as necessary, as part of its Sioux City ergonomic program. It is Morrell's intent to meet with the State of Iowa to execute an agreement similar to this Agreement. The State of Iowa is encouraged to honor the terms of this Agreement. E. Reports Regarding Ergonomic and Medical Management Programs
23. Morrell will-complete status reports on the programs at the Sioux Falls Plant set forth in this Agreement quarterly for two years and semiannually thereafter until the Agreement is completed. Such status reports will be completed within 30 days of the end of each period and will indicate the work completed in the immediately past period and the work which it anticipates completing in the upcoming period. The first reporting period will begin as of the date of the Commission's Final Order in this matter. Morrell will make available to OSHA's Bismark Regional Administrator any programs, reports, and analyses prepared pursuant to Paragraphs 11(a), 14, 17, and 23 of this Agreement and paragraph 4(d)(1) (b)(1)(b) of Attachment B, but all subject to the confidentiality provisions in Paragraph 30 below. Except for those documents and other information that are confidential or proprietary (and thus subject to the provisions of Paragraph 30), Morrell also will make available such programs, reports and analysis to the President of the Local 304A. OSHA's and the Union's contact at Morrell's Sioux Falls plant will be the Sioux Falls' plant manager. F. Steps to Address the Conditions Cited in OSHRC Docket No. 87-0635 - Recordkeeping
24. (a) Morrell will correct the entries in its OSHA 200 Logs for those items listed in Paragraphs 8 and 11 on pages 37 and 38 of the Administrative Law Judge's decision in OSHRC Docket No. 87-0635. This step will be completed within thirty days of the Commission's Final Orders in these matters.
(b) Morrell agrees to continue to maintain its occupational injury and illness recordkeeping practices in accordance with the Act, the recordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLS Guidelines, as the same may be amended from time to time.
25. Morrell will undertake an audit of the occupational injury and illness recordkeeping practices at its Sioux Falls and Sioux City Plants, by doing the following:
(a) Undertake an examination of relevant records in its possession and ensure that OSHA-required records going back to January 1, 1988, are in compliance with the Act, the regulations at 29 C.F.R. Part 1904, the OSHA Form 200 Log, and the Revised Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics, in April 1986, which together shall be referred to here as "OSHA recordkeeping requirements." The Secretary agrees that, during this examination period by Morrell, and for any item properly placed on the OSHA Form No. 200 Log (including the completion of the OSHA Form No. 101) as a result of this examination, Morrell will not be cited for allegedly failing to comply with OSHA recordkeeping requirements.
(b) Institute, at its Sioux Falls, South Dakota; and Sioux City, Iowa plants, a training program in OSHA recordkeeping requirements to train those Morrell employees having responsibility for OSHA recordkeeping. The training program will be conducted by an individual(s) knowledgeable in the OSHA recordkeeping requirements and will include instruction on OSHA recordkeeping regulations and guidelines.
(c) The actions discussed in Paragraphs 25(a) and 25(b) will be completed within six months of the Commission's Final Orders in these matters.G. Entry Onto Company Facilities
26. During the term of this Agreement, Morrell will permit OSHA reasonable entry into, and reasonable inspection of, its Sioux Falls Plant to determine compliance with this Agreement ("monitoring inspections") and with the Act. Morrell will not require a warrant for any such reasonable entry or inspection.
27. The Secretary agrees that OSHA will not issue citations nor take any other enforcement action against Morrell for any ergonomic conditions identified in the programs, reports, analyses, or monitoring inspections set forth in this Agreement, provided such conditions are being or will be addressed in good faith in accordance with this Agreement (including correction, if necessary)
28. OSHA agrees that, if Morrell is implementing this Agreement, OSHA shall not conduct a general schedule inspection relating to ergonomic conditions in Morrell's plant during the implementation period of this Agreement. OSHA may continue to conduct complaint, fatality, referral, and catastrophe inspections and monitoring inspections as set forth in Paragraphs 26 and 27. OSHA further agrees that, during the abatement period, if it discovers, in the course of a monitoring inspection, any condition it believes may be a violation, OSHA will so inform Morrell before completing the monitoring inspection. H. General Provisions
29. Extensions of Time. The Secretary and Morrell shall confer in good faith with the intent of achieving agreement on some reasonable extension or extensions of the periods set forth in this Agreement, if such should become necessary. The language in this paragraph, however, is not intended to supercede the Commission Rule at 29 C.F.R. 2200.37, which deals with petitions for modification of the abatement period.
30. Treatment of Confidential Material. All documents or other Information made available by Morrell under this Agreement shall be handled pursuant to Section 15 of the Act (29 U.S.C. 664), 18 U.S.C. 1905, 29 C.F.R. 1903.9. Morrell shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or confidential material. No document or information that is proprietary or confidential shall be made available, directly or indirectly, to the public (including the Union) in any form whether by SUMMARY, analysis or verbatim. All documents or other information that contain proprietary or confidential information will be made available to the Union by Morrell only after the execution of a separate confidentiality agreement.
31. Discrimination. Morrell agrees to continue to comply with Section 11(c) of the Act, 29 U.S.C. 660(c), which prohibits discrimination against any employee because of the exercise of any rights afforded by the Act and that Section 11(c) applies to the activities undertaken pursuant to this Agreement. Such activities include reasonable requests to visit the medical facilities (as well as actual visits to such facilities), being diagnosed as having a form of CTD, and undergoing medical treatment for a diagnosed form of CTD. This language does not in any way create any duty or obligation on the part of Morrell beyond those duties or obligations that may already exist under other applicable federal or state discrimination laws for regulations.
32. Compromise of a Disputed Claim. It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Morrell 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 Order, 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 Morrell other than in a proceeding brought by the Secretary under the Act. In particular, nothing in this Agreement is to be construed as an admission by Morrell that a specific employee's CTD, is work-related. For purposes of proceedings brought by the Secretary under the Act, the parties agree to treat the Citation in OSHRC Docket No. 88-2522, as an uncontested citation. This Agreement is being entered into solely to avoid further litigation and expense to the parties.
33. Term of Agreement. This Agreement shall be in effect for a period of four years from the date of the Commission's Final Order in these matters. The Agreement will remain in effect thereafter unless and until either Morrell or OSHA gives the other party sixty days notice that the Agreement is cancelled.
Respectfully submitted, JOHN MORRELL & CO., SIOUX SECRETARY OF LABOR, UNITED FALLS PLANT STATES DEPARTMENT OF LABOR By: By: ______________________________ _________________________________ Its: _________________________ Alan C. McMillan Deputy OSHA Administrator ______________________________ __ Robert P. Davis/Saw __________ Robert C. Gombar Solicitor of Labor Janet L. Miller JONES, DAY, REAVIS & POGUE __ L. A. Housh/Saw ______________ Metropolitan Square Regional Solicitor 1450 G Street, N.W. Washington, D.C. 20005-2088 __ SueAnn Wolff _________________ (202) 879-3939 Attorney Counsel for Respondent Council for Complainant __ Robert S. Bass/Saw ___________ Attorney Counsel for Complainant AUTHORIZED EMPLOYEE REPRESENTATIVE UFCW By: _______________________________ James R. Lyons, President Local 304A United Food & Commercial Workers Union, AFL-CIO, CLC _______________________________ Nicholas W. Clark, Esq. UNITED FOOD AND COMMERCIAL WORKERS, INTERNATIONAL UNION, AFL-CIO 1775 K Street, N.W. Washington, D.C. 20006 Counsel for Authorized Employee Representative March 21, 1990 ATTACHMENT A BEEF FAB BEEF KILL Clean plate bones Split back Chine saw operators Pregut Extension meat workers Backer Aitch boner Rod weasand Hang rounds Shackler Loin saw operator Hind saw operator BEEF BY Jet net chuck Paunch opener Clean brisket bone Chisel heads Short rib bones Drop gooseneck BEEF COOLER Trim and pull flanks Trim beef Trim strips Bone plates PORK CUT Trim bottom butts Label vac pac Trim chucks Wipe vac pac Bone skirts Feed vac pac Bone steak tails Cut of hind foot Hog drop HOG KILL Scale, ice and loin close Neck scrubber Open hogs HAM BONE Skin foreheads Roll out bone-in shank Stun hogs Remove rags button gland Aphis helper (final rail) Grade honey ham Drop bungs Remove finger and butt Stick hogs Pinch toes GREEN GRADE Neck trimmer Belly grader Put in spreader hook Aphis helper (trimmer) CANNING Aphis helper (hog insp.) Lids on mold Spring molds PORK TRIM Save loaf wrapper CURING Save lean in fat Wash vats High bench inspector Make box and inspect trim SMOKE MEAT WASH Caging hams SAUSAGE COOLER Cut rotomatic operator SMOKE MEAT PACK 902 line operator Bagger Box pre Pac Rotomatic operator Semi-rigid operator Pack weiners Maraflex operator Peel (cited as "pull") weiners
1. "Cumulative trauma disorder" is a term that does not indicate a particular medical entity because it is not characterized by a specific set of clinical, laboratory or pathological findings. The term, however, has been used to group a collection of symptoms of the upper extremities considered to be caused or aggravated by certain activities, some of which may be work-related.
The focus of the medical management program for purposes of this Agreement will be those medical disorders of the upper extremities defined by specific criteria and associated with certain work activities (such as repetitive motion) ("CTD") Examples of these types of disorders include tenosynovitis, tendonitis, synovitis, carpal tunnel syndrome, cubital tunnel syndrome, stenosing tenosynovitis of the fingers and epicondylitis.
The goal of the medical management program developed by the Medical Consultant is the diagnosis, prevention (including early detection) and appropriate treatment (including use of conservative modalities) of the medical conditions covered by this Attachment.
2. Current employees will be surveyed to establish a baseline for measurement of frequency of symptoms in the upper extremities.
a. The Medical Consultant will develop a questionnaire directed at measuring frequency of symptoms in the upper extremities among those employees currently holding Cited and Non-Cited Jobs.
b. The questionnaire will be administered by the first aid staff to all such employees. The questionnaire will be drafted within 30 days after the Commission's Final Order in this matter and will be administered to such employees within six months thereafter. The questionnaire will be readministered annually subject to reevaluation by the Medical Consultant.
c. Using the questionnaires, symptoms of diagnoses associated with CTD for each job category will be tabulated. This tabulation will be made available to the Union and to OSHA. The questionnaires will be made available for use of specifically designated OSHA personnel only pursuant to a properly drawn medical records access order, which will not be opposed by Morrell.
3. The procedures that will be followed for new employees who are to hold a Cited or Non-Cited job are:
a. All such new employees currently are given a physical examination. The physical examination will be expanded to include examinations or tests of the upper extremities, as recommended by the Medical Consultant, to complete the baseline information for each employee.
b. All such new employees will be seen in Morrell's first-aid facility by a nurse during the first, third and sixth weeks of their employment. The nurse will review any new symptoms such employee may be experiencing.
c. Such new employees exhibiting symptoms or physical signs during the time periods described in subsection b. of this paragraph will be integrated into the medical management program for current employees described in paragraph 4 below.
4. To the extent not already in place, (and except as to the protocols to be developed as discussed in Paragraph 5 of this Attachment a) the medical management program for current employees holding Cited or Non-Cited jobs, which will be implemented within 30 days after the Commission's Final Order in this matter, will be as follows:
a. Morrell maintains a first-aid facility staffed with one or more nurses to which each employee is to report his/her symptoms related to the upper extremities.
b. When such employee reports his/her new symptoms, the first aid nurse will conduct a screening examination:
(1) An interim history will be taken.
(2) A directed physical examination (including inspection, palpation and range of motion) will be conducted.
c. If the directed physical examination reveals physical signs of an upper extremity disorder, the employee will be referred to an authorized treating physician. If there are no physical signs, the nurse will follow the protocols to be established by the Medical Consultant as described in Paragraph 5 of this Attachment B. Unless and until superseded by such protocols the following will apply:
(1) For initial symptoms consistent with muscle and/or tendon disorders and/or nerve entrapment, therapy such as ice/massage and/or contrast soaks and/or wrapping may be used.
(2) Morrell's nurses have never used, and will not use, parafin for employees with symptoms of carpal tunnel syndrome or tendon-related disorders.
(3) Morrell's nurses will not use daytime splints.
d. Reevaluation procedures.
(1) Morrell will institute a procedure for reevaluating the symptomatic employee within 3 working days except that the time frames set forth in the protocols developed or revised by the Medical Consultant pursuant to Paragraph 5 of this Attachment B shall supersede the 3 working days set forth in this subsection.
(a) If the employee's symptoms are better, the findings will be recorded.
(b) If the employee's symptoms remain the same or are worse, the employee will be referred to an authorized treating physician.
(1) When the particular employee is returned to work by the authorized treating physician, existing or newly created Production Jobs at the Sioux Falls Plant will be evaluated to the extent necessary to determine what job(s) is appropriate for the particular employee who has the medical restriction.
(a) 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 to what Production Job such employee is to be assigned. The intent of the reassignment is to minimize the risk that the employee's condition will be exacerbated and to eliminate the risk, if possible.
(b) If a job has no ergonomic analysis available, the job will be analyzed for ergonomic stressors using the factors described in Paragraph 17(b)(1) of the Agreement as part of the job assignment determination for such employee.
(c) The medical personnel, in consultation with other appropriate management personnel, will determine to which job the employee will be assigned upon return to work.
(2) Morrell will institute a procedure for reevaluating, each three working days, those employees who are returned to work under this program by the authorized treating physician and are assigned to a job. The reevaluation will continue until such symptoms subside and will include a review of medical restrictions, if any, for such employee's upper extremity disorder. As set forth in Paragraph 5, protocols developed (or subsequently revised) by the Medical Consultant are to supersede the procedures (including the time frames) outlined in this Paragraph.
5. The Medical Consultant, who may be assisted by other medical personnel he/she deems appropriate, will develop protocols (and revise them) as are needed to address work-related upper extremity disorders or may modify the program as deemed feasible and useful. The protocols, which will be consistent with, and not less rigorous than, the program outlined this Attachment B, will include specific diagnostic criteria and outline medical treatment, if any, to be given at Morrell's first aid facility for the specific disorder. The protocols will address such areas as:
a. Type of medical examination to be conducted (e.g. taking of history, type of physical examination).
b. Therapy options.
c. Reevaluation of employee (e.g. time for reevaluation, actions to be taken in reevaluating the employee, reevaluation after return to work).
6. Under the direction of the Medical Consultant, the nurses employed by Morrell will receive training to implement the procedures outlined in this Attachment B, including implementation of any subsequent protocals developed by the Medical Consultant.
7. The procedures that will be followed when an employee has had surgery for an upper extremity disorder are as follows:
a. The employee will not return to work until the incision has healed (i.e., the sutures have been removed and no infection is seen).
(1) During this period, the authorized treating physician will refer the employee to, or determine for the employee, a therapy (occupational or physical therapy)/work hardening program in Sioux Falls which the employee must attend as ordered.
b. Once the authorized treating physician determines that the incision has healed, s/he then is to determine whether the employee, in his/her opinion, has adequate protective sensitivity and motion.
(1) If the employee does not have adequate protective sensitivity or motion, s/he is to continue with the therapy/work hardening program until the authorized treating physician determines that s/he does have adequate protective sensitivity and motion.
(2) If the authorized treating physician determines that the employee has adequate protective sensitivity and motion, the employee may return to work as described below.
c. The authorized treating physician who releases the employee to return to work will describe those restrictions, if any, applicable to that employee. The employee will progress through a work restriction program at Morrell with medical follow-up. The authorized treating physician, in conjunction with the therapist, will evaluate the progress of the employee until s/he is released to unrestricted duty.
(1) When the particular employee is released to return to work, Cited and/or Non-Cited Jobs at the Sioux Falls Plant will be evaluated to the extent necessary to determine what job(s) is appropriate for the particular employee who has the medical restriction.
d. This procedure is tentative and subject to further development or amendment as the program progresses. The procedure will be evaluated yearly by the Medical Consultant (during the period of retention set forth in Paragraph 21), in conjunction with other medical personnel to determine whether it needs revision (e.g., taking into consideration medical advances).
e. The parties agree that Morrell shall follow this procedure even if the employee's own surgeon or doctor permits the employee to return to work or to his/her previous job sooner than the periods required by this procedure.
f. An appropriate form setting forth this procedure (or later amendments) will be made available to each employee who undergoes surgery for such upper extremity disorder addressed in this Attachment.
g. The procedures set forth in this Paragraph 7 will be implemented within 180 days after the Commission's Final Order in this matter.
8. The term "authorized treating physician" used in this Attachment B refers only to those physicians who are designated by Morrell and who will be trained by the Medical Consultant. If the employee chooses his or her own physician in accordance with applicable state laws, Morrell will give the employee this protocol (or, if revised, the