"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 v. ) NOS. 91-2741 ) 91-2742 ) (CONSOLIDATED) SAMSONITE CORPORATION ) Respondent. ) __________________________________) ) UNITED RUBBER, CORK, LINOLEUM & ) PLASTIC WORKERS OF AMERICA ) AFL-CIO, CLC, LOCAL 724, ) Authorized Emp. ) Representative. ) __________________________________)
STIPULATION AND SETTLEMENT AGREEMENT
I. Complainant, Secretary of Labor, United States Department of Labor, Respondent, Samsonite Corporation, and the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, Local 724 Union have reached a full and complete settlement of the above-captioned matters presently pending before the Occupational Safety and Health Review Commission (hereinafter "Review Commission"). Accordingly, the parties stipulate and agree as follows:
II. (a) The Review Commission has jurisdiction of these matters pursuant to Sections 10(a) and 10(c) of the Occupational Safety and Health Act of 1970, as amended (hereinafter "the Act").
(b) Respondent is a Delaware corporation with a place of business in Denver, Colorado. It has been at all times material to these proceedings engaged in the business of luggage manufacturing. Respondent is an employer engaged in a business affecting commerce as defined by Sections 3(3) and 3(5) of the Act, has employees as defined by Section 3(6) of the Act, and is subject to the requirements of the Act.
(c) As a result of an inspection of Respondent's Denver, Colorado luggage manufacturing facility, citations alleging violations of the Act were issued to Respondent on September 5, 1991, pursuant to Section 9(a) of the Act.
(d) Respondent filed notices of contest to each of the citations and notifications of proposed penalties which were duly transmitted to and docketed by the Review Commission. The authorized representative of employees at the Denver, Colorado facility, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, Local 724, elected party status.
III. (a) Because this Stipulation and Settlement Agreement is being entered into, Respondent hereby withdraws its notices of contest to the citations and notifications of proposed penalties, as amended herein.
(b) Complainant hereby amends the total proposed penalty for the citations to Four Hundred and Ninety-Five Thousand Dollars ($495,000). Respondent shall submit payment of the total penalty of $495,000 to the Secretary within 30 days of the entry of the Final Consent Order of the Review Commission.
(c) Complainant hereby amends each of the citations issued in Docket Nos. 91-2741 and 91-2742, by deleting any and all references to the category or characterization of the alleged violations.
(d) The parties hereby agree that this Stipulation and Settlement Agreement, including the attached Samsonite Corporation Ergonomic and Recordkeeping Agreement ("Ergonomic and Recordkeeping Agreement") which is incorporated herein by reference, shall become a Final Order of the Review Commission ("Order"). Included with this Agreement is a draft Final Consent Order approving this settlement. The form and content of the Final Consent Order, this Agreement, and the Ergonomic and Recordkeeping Agreement have been negotiated by the parties who hereby consent to the entry of the Final Consent Order as the final order of the Review Commission so that the litigation of these matters may be concluded.
IV. (a) Respondent agrees to abate the conditions noted in the Ergonomic and Recordkeeping citations by implementing the Ergonomic and Recordkeeping Agreement which has been incorporated in its entirety into this Agreement. Respondent represents that many of the abatements required or recommended in the citations and/or the Ergonomic and Recordkeeping Agreement have already been accomplished. The parties agree that any such abatement methods implemented, if they otherwise meet the requirements of this Agreement, will be considered as compliance with relevant portions of this Agreement.
(b) Respondent states that the abatement of all recordkeeping items of the contested citations has been accomplished and agrees that the date of this Stipulation and Settlement Agreement shall be the final abatement date for each of the items in said citations.
V. In accordance with Rules 7 and 100 of the Rules of Procedure of the Review Commission, Respondent shall give this Agreement to affected employees represented by the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, Local 724 by serving a copy of it on said employee representative at U.R.W. Local 724, 4695 Kingston Street, Unit A, Denver, Colorado 80239. In accordance with Rules 7 and 100 of the Rules of Procedure of the Review Commission, Respondent agrees to post a copy of this Agreement at the facility in a place suitable for review by all employees.
VI. Non-Admissions Clause It is understood and agreed by the parties that this Agreement, including the attached Ergonomic and Recordkeeping Agreement, constitutes a compromise of a disputed claim. Therefore, the parties stipulate and agree as follows:
This Agreement and the statements, actions and findings made by the Respondent in connection herewith or hereafter in fulfilling its obligations hereunder do not and shall not constitute an admission by the Respondent of any violation of the Act.
Without limiting the foregoing, this Agreement shall not be deemed an admission by the Respondent of the allegations contained within the Citations, Notifications of Proposed Penalty and Complaint that are the subject matter of these proceedings.
This Agreement shall not be used in any proceeding before any court, agency, commission or any other body, except for further enforcement proceedings under the Act.
In particular, nothing in this Agreement is to be construed as an admission by the Company that a specific employee's CTD is work related. Further, this Agreement is being entered into solely to avoid further litigation expense to the parties.
Nothing contained in this Agreement shall preclude OSHA at the conclusion of the term of the Ergonomic and Recordkeeping Agreement from investigating the plant or any conditions covered by this Agreement and, if appropriate, to issue citations relating to the conditions covered by this Agreement.
VII. (a) The parties agree that, based on the foregoing representations and on the terms of the Ergonomic and Recordkeeping Agreement incorporated herein, a Final Consent Order may be entered of record showing that Respondent has withdrawn its notices of contest and entering the citations, as amended, and notifications of proposed penalty, as amended, this Stipulation and Settlement Agreement and the aforesaid Ergonomic and Recordkeeping Agreement as the final order of the Review Commission.
(b) Each party agrees to bear its or her own fees and other expenses incurred by such party in connection with any stage of these proceedings.
Dated this 29th day of January, 1993. FOR THE SECRETARY OF LABOR: ___________________________ RUSSELL B. SWANSON Deputy Assistant Secretary for Occupational Safety & Health JUDITH E. KRAMER Deputy Solicitor of Labor TEDRICK A. HOUSH, JR. Regional Solicitor __________________________ SUSAN A. WOLFF Senior Trial Attorney __________________________ NICK LEVINTOW Trial Attorney __________________________ KATHLEEN BUTTERFIELD Attorney __________________________ ROBERT S. BASS Attorney Room 2106, 911 Walnut Street Kansas City, Missouri 64106-2085 (816) 426-6441 Attorneys for Secretary of Labor U.S. Department of Labor FOR RESPONDENT: __________________________ TOM LEONARD President Samsonite Corporation KIMBERLY TAYLOR HENRY ___________________________ Kimberly Taylor Henry, Esq. Attorney for Respondent UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA ____________________________ ALTON W. BRAY President ____________________________ LOUIS S. BELICSKY Director of Hygiene, Safety & Workers Compensation SAMSONITE CORPORATION ERGONOMIC AND RECORDKEEPING AGREEMENT TABLE OF CONTENTS Page I. Parties. . . . . . . . . . . . . . . . . . . . .1 A. Agreement. . . . . . . . . . . . . . . . . .1 B. Samsonite's Objectives and Belief. . . . . .1 II. General Recognition Language & Definitions . . .1 A. Recognition of CTD . . . . . . . . . . . . .1 B. Definitions. . . . . . . . . . . . . . . . .3 III. The Consultants. . . . . . . . . . . . . . . . .4 IV. Ergonomic Program. . . . . . . . . . . . . . . .5 A. Identification and Control of Ergonomic Stressors. . . . . . . . . . . . . . . . .5 1. Ergonomic Analysis. . . . . . . . . . .5 2. Engineering Controls. . . . . . . . . .8 3. Documenting Effectiveness of Engineering Controls . . . . . . . 12 4. Administrative Controls . . . . . . . 12 5. Documenting Abatement Methods . . . . 14 6. Employee Input. . . . . . . . . . . . 14 B. Orientation and Training Program . . . . . 15 1. Training Components . . . . . . . . . 15 C. Medical Management Program . . . . . . . . 21 1. Scope of the Program. . . . . . . . . 21 2. Elements of the Program . . . . . . . 22 3. Light Duty Jobs/Alternate Duty Jobs . . . . . . . . . . . . . 25 4. Nondiscrimination . . . . . . . . . . 26 5. Previously Unevaluated Job Performance . . . . . . . . . . 26 V. Historical Analysis. . . . . . . . . . . . . . 27 VI. Periodic Program Meetings. . . . . . . . . . . 27 VII. Entry Onto Corporation Facilities. . . . . . . 28 A. OSHA Access. . . . . . . . . . . . . . . . 28 B. Monitoring Inspections . . . . . . . . . . 28 VIII. Reports. . . . . . . . . . . . . . . . . . . . 29 IX. Dispute Resolution . . . . . . . . . . . . . . 30 X. Modification of Abatement Dates. . . . . . . . 30 XI. Treatment of Confidential Material . . . . . . 31 XII. Compromise of a Disputed Claim . . . . . . . . 31 XIII. Recordkeeping Agreement. . . . . . . . . . . . 32 XIV. Term of Agreement. . . . . . . . . . . . . . . 34 XV. Signatures - Parties . . . . . . . . . . . . . 35 Appendix A.
A. Agreement This Agreement is by and between Samsonite Corporation, 11200 East 45th Avenue, Denver, Colorado, 80239, and its successors ("Samsonite" or "the Corporation"), and the United States Department of Labor, Occupational Safety and Health Administration ("OSHA"). This Agreement applies only to the facility located in Denver, Colorado. B. Samsonite's Objectives and Belief The Corporation states that it is Samsonite's objective to achieve a successful proactive ergonomic management program at Samsonite through engineering controls, medical management, education, and reduction of ergonomic concerns, to produce a safer and more healthful workplace which will be mutually beneficial for Samsonite's employees, Samsonite, and OSHA. The Corporation states that it is Samsonite's belief that attaining this objective should improve Samsonite's quality and worker comfort, and reduce cumulative trauma disorders ("CTDs") and medical expenses in the long run.
II. General Recognition Language & Definitions
A. Recognition of CTD Samsonite Corporation and OSHA recognize that cumulative trauma disorders (hereinafter "CTDs") have occurred at Samsonite's Denver manufacturing plant as an occupational illness and that a number of employees in the Denver plant have experienced CTDs in the workplace. The parties acknowledge that Samsonite does have assembly lines in its Denver plant and they are repetitive, and that Samsonite does have a union and a labor/management contract in the Denver plant.
The Corporation and OSHA also recognize that the control of CTDs often requires the application of a number of different control technologies and methods. These may include, among others, ergonomically-influenced designs, the application of engineering controls to reduce or eliminate job-related ergonomic stressors (which may include, e.g., force, posture, repetition, vibration and lifting); work practice controls (which may include, e.g., proper work techniques and employee conditioning) education of employees, supervisors and ergonomics engineers; a medical management program aimed at the early detection and treatment of CTDs and early and proper medical diagnosis; and administrative controls (which may include, e.g., job rotation and frequent rest periods). The Corporation and OSHA also agree that, initially, an increase in the number of CTD cases and in the incidence rate for CTDs will not be an unanticipated consequence of improved recordkeeping practices and increased employee awareness brought about by employee involvement in the training, orientation and medical management programs which are integral parts of agreements such as this.
The parties hereto recognize that Samsonite has an ergonomics and medical management program in place at the time of executing this Agreement, and that this Agreement contains a number of provisions which Samsonite may have already performed, or may be in the process of performing.
B. Definitions 1. CTDs of the upper extremities and the lower back are chronic soft tissue problems of the musculoskeletal and peripheral nerve system. Examples of specific diagnoses within this class of disorders include tendinitis, deQuervain's tendinitis, rotator cuff tendinitis, bursitis, capulitis, tenosynovitis, synovitis, carpal tunnel syndrome, stenosing tenosynovitis of the fingers or thumbs (trigger finger), epicondylitis, (tennis elbow or golfer's elbow), overuse syndrome, ganglion cyst, thoracic outlet syndrome, ligament strain, parascapular strain, ulnar nerve compression, and low back pain syndrome.
2. The parties recognize that jobs cited in Citation 1, Items 79 through 264, refer to numbered operations and combinations of numbered operations. Particular combinations of numbered operations in the Corporation's manufacturing process often change, and in some cases the cited combinations of numbered operations may no longer be in use at the time of execution of this Agreement. For the purposes of this Agreement cited jobs shall be described as "Cited Operations." The term "Cited Operations" shall mean any operation identified by number, cited in Items 79 through 264 of Citation No. 1, and where deemed appropriate by the Consultant, shall also mean combinations of operations.
3. "Operation" shall mean a single task consisting of one or more work elements which has its own time standard and its own operation number.
4. "Ergonomic Stressor Operation" shall include operations and, where appropriate, as determined by the Consultant and the Corporation, combinations of operations. "Ergonomic Stressor Operation" shall mean any operation, other than Cited Operations, identified by the Consultant and the Corporation as causing or likely to cause CTDs, after its review as called for in this Agreement.
III. The Consultants
The Corporation agrees to retain one or more Consultants who shall be qualified by education, training and experience in the field of ergonomics, and shall among them demonstrate expertise in engineering related to ergonomics, epidemiology, and medical surveillance (hereinafter "the Consultant"). The Corporation shall retain a sufficient number of Consultants to satisfy the terms of this Agreement. The Consultant shall be retained for the life of this Agreement. The Consultant will assist the Corporation, as detailed hereinafter, in identifying those operations and/or combination of operations which pose a hazard of CTDs and in developing and implementing the ergonomic program discussed in this Agreement. It is the Corporation's intent that the Consultant will establish priorities, protocols and models for the conduct of ergonomic analyses, and that the Consultant will direct, guide, review and validate the work of the Corporation's Ergonomics Engineer(s) as the engineers conduct the ergonomic analyses following the models, protocols and priorities of the Consultant. The Consultant will review and sign the Corporation's quarterly reports to OSHA, and may include comments on such reports as the Consultant may deem appropriate. OSHA shall be notified of the name of each Consultant retained, and shall be provided with a copy of each Consultant's curriculum vitae within thirty (30) days of the Consultant's retention.
IV. Ergonomics Program
A. Identification and Control of Ergonomic Stressors 1. Ergonomic Analysis.
PHASE ONE. Within 18 months of the date of execution of this Agreement, the Corporation agrees to do what is provided for in subparagraphs (a) through (f), below, on one-third (1/3) of the total number of operations in existence at the time of execution of the Agreement.
PHASE TWO. Within 30 months of the date of execution of this Agreement, the Corporation agrees to do what is provided for in subparagraphs (a) through (f), below, on an additional one-third (1/3) of the total number of operations in existence at the time of execution of the Agreement.
PHASE THREE. Within 42 months of the date of execution of this Agreement, the Corporation agrees to do what is provided for in subparagraphs (a) through (f), below, on the final one-third (1/3) of the total number of operations in existence at the time of execution of the Agreement.
The Corporation represents that one-third (1/3) of the total number of operations is approximately 700 separate operations.
(a) the Consultant will independently establish priorities, protocols, and models for ergonomics analyses of all repetitive motion manufacturing operations, including the Cited Operations. The Company and the Consultant shall give priority to analysis and evaluation of OSHA-cited operations, and, within the Cited Operations, to those posing greater risk of CTDs, as reflected by higher proposed penalty amounts, unless the Consultant shall document his opinion that a new product line, or existing operation or combination of operations poses a greater hazard of causing CTDs than a Cited Operation. The Consultant will do at least one model analysis in conjunction with the Corporation's designated Ergonomics Engineer(s). The Consultant shall develop a method for determining when combinations of operations may need analysis.
The analyses shall evaluate operations and combinations of operations, when deemed necessary by the Consultant and the Corporation, with regard to positions, practices, tools and equipment to identify ergonomic stressors (which may include, e.g., repetition, force, vibration, lifting and posture) so that the Corporation working with the Consultant may identify those operations and combinations of operations where ergonomic stressors exist and are causing or are likely to cause CTDs, and attempt to determine feasible control strategies which will eliminate or significantly reduce these ergonomic stressors.
The analysis shall also include an evaluation of the corrected OSHA 200 logs, 101 forms, medical data and other relevant available documentation, (e.g., Worker Involvement Survey), and on-site review when deemed necessary by the Consultant. The on-site review by the Consultant may include the use of survey tools such as the taking of measurements, videotaping, and employee input, as determined by the Consultant.
The ergonomic analysis for each job task will include identification and assessment of any of the following which may be present: ergonomic stressors, job steps, work space, controls, tools/machines, duration, repetitions, forceful exertions, localized mechanical stress, awkward postures, prolonged static posture, reach, vibration and any other risk factors identified by the Consultant. The format of the ergonomic analysis for each job task will be consistent, in that it will identify the problem, its cause, and possible solutions, and useful for application to the workplace.
The Corporation's Ergonomics Engineer(s) shall perform the analyses according to the priorities, protocols, and models established by the Consultant. Periodically, the Consultant will review the analyses performed by the Corporation's Ergonomics Engineer(s), and will validate the analyses as appropriate. This review and validation will occur on a reasonable basis to be determined by the Consultant and the Corporation, but at least monthly for the first eighteen months of this Agreement and no less frequently than quarterly for the remainder of this Agreement. The Consultant and the Corporation will determine how the consultant will review and validate the work of the Ergonomics Engineer(s).
(b) Following the completion of each analysis, the Consultant will assist the Corporation in identifying whether or not an operation or combination of operations, when deemed necessary by the Consultant, is an Ergonomic Stressor Operation at least monthly for the first eighteen months of this Agreement and at least quarterly for the remainder of the Agreement.
(c) The Consultant will review the specific OSHA-recommended abatements set forth in Citation No. 1 for each of the Cited Operations listed therein.
(d) The Consultant will review and evaluate those ergonomic improvements the Corporation has already implemented or proposed as part of its ergonomic program.
(e) The Consultant will assist the Corporation in conducting literature and manufacturing searches for tools, devices, or other items that may prove beneficial in the Corporation's attempts to address the ergonomic stressors identified in the Cited Operations and Ergonomic Stressor Operations.
(f) The Consultant will propose abatement recommendations for Cited Operations and Ergonomic Stressor Operations.
2. Engineering Controls: The Corporation shall, in conjunction with its Consultant, prioritize, evaluate, test as necessary, and implement all feasible engineering controls recommended by its Consultant, including but not limited to those recommended by OSHA in Items 79 through 264 of Citation No. 1. The parties contemplate the possibility that, following the evaluation by the Consultant of abatement methods recommended by OSHA in Items 79 through 264 of Citation 1, the Consultant might not recommend every engineering control recommended by OSHA in the aforesaid Citation Items. Provisions are made hereinafter at paragraph IV.A.5., "Documenting Abatement Methods," and at Part IX, "Dispute Resolution," to address the Corporation's accounting for any such abatement recommendations which are not implemented.
(a) Prioritizing Operations.
As soon as practicable, but no later than sixty (60) days after completion of the analysis and review for an operation or combination of operations as outlined in paragraph IV.A.1. above, the Corporation and its Consultant will establish a priority for implementation of feasible abatement measures recommended by its Consultant for the Cited Operations and for Ergonomic Stressor Operations identified by the Consultant. Unless the Consultant shall document his opinion that a new product line, or existing operation or combination of operations poses a greater hazard than a Cited Operation, priority shall be given to the Cited Operations, and, within the Cited Operations priority shall be given according to greater severity of hazard as reflected in higher proposed penalty amounts.
(b) Evaluation and Testing of Engineering Controls.
As soon as practicable, but no later than sixty (60) days following the prioritization called for in paragraph IV.A.2.a. above, the Corporation agrees to commence the evaluation of all of the OSHA recommended abatements specifically identified for a particular Cited Operation and those abatement recommendations proposed by the Consultant for the Cited Operations and for Ergonomic Stressor Operations. This evaluation shall include consideration of a particular engineering abatement method alone and in combination with other recommended engineering abatement methods.
(1) All abatement methods determined by the Consultant and the Corporation to be feasible will be implemented.
(2) All abatement methods for which the Consultant and the Corporation determine feasibility is uncertain will be tested on site. The parties understand "testing" to mean implementation of an engineering control for such period of time and in such defined circumstances as the Consultant and the Corporation shall deem appropriate to determine that a control is feasible. The parties understand that many engineering controls may be implemented without any particular prior testing. It is the intent of the parties that testing shall be done only when feasibility of a control is uncertain in the judgment of the Consultant and the Corporation.
(3) If any of OSHA's engineering control recommendations are determined not to be feasible by the Consultants or the Corporation they need not be tested or implemented.
(4) Experimental Work Stations. As part of the testing procedure, experimental work stations will be established when deemed appropriate and feasible by the Consultant and the Corporation. The input of employees assigned to work at any experimental work station shall be solicited and evaluated by the Consultant. During the time employees are assigned to experimental work stations the Corporation shall not require them to meet any full production quotas until they have been allowed sufficient time to be oriented by the Consultant or the Corporation to the way the job will be performed at the experimental work station.
As the Corporation determines from its evaluation and, if necessary, testing, which of the recommended engineering controls are feasible, the Corporation shall implement them. The Corporation is committed to implementing the feasible recommended engineering controls as expeditiously as reasonable. The Corporation agrees to implement all feasible engineering controls at the Denver, Colorado plant according to the following schedule:
STEP ONE: All feasible engineering controls shall be implemented for those operations or combinations of operations analyzed in PHASE ONE of paragraph IV.A.1. within 24 months of the date of this Agreement.
STEP TWO: All feasible engineering controls shall be implemented for those operations or combinations of operations analyzed in PHASE TWO of paragraph IV.A.1 within 36 months of the date of this Agreement.
STEP THREE: All feasible engineering controls shall be implemented for those operations or combinations of operations analyzed in PHASE THREE of paragraph IV.A.1 within 48 months of the date of this Agreement.
3. Documenting Effectiveness of Engineering Controls.
The Corporation with the advice and guidance of the Consultant will develop and implement a plan for documenting the degree to which the feasible engineering controls implemented significantly reduce or eliminate the identified ergonomic stressors. This plan shall include, but not be limited to, evaluation of processes, with regard to positions, practices, tools and equipment put in place, installed, or implemented during the term of this Agreement, as well as review of medical records maintained by the Corporation on the employees who have worked at Cited and/or Ergonomic Stressor Jobs on which any engineering controls have been implemented, and individual employee input. The Corporation and Consultant shall also utilize the results of the Worker Involvement or Symptom Survey which is provided for in the Medical Management portion (at paragraph V.C. below) of this Agreement. A SUMMARY of the findings obtained pursuant to this plan shall be provided to OSHA in the Corporation's quarterly reports. This plan will be implemented within nine (9) months of the execution of this agreement.
4. Administrative Controls. If engineering controls prove insufficient to significantly reduce or eliminate ergonomic stressors related to CTDs, the Corporation shall commence the testing and implementation of feasible Administrative Controls recommended by OSHA and the Consultant, including, if feasible, reducing the number of repetitive motions per employee per shift. Feasible administrative controls determined to be necessary under this Agreement shall be implemented at the Denver, Colorado, plant as soon as reasonably possible after the Consultant and the Corporation make a good faith determination that engineering controls have failed to significantly reduce or eliminate ergonomic stressors related to CTDs. The Consultant and the Corporation shall make a determination regarding the need for administrative controls under this paragraph within six (6) months after the implementation of all identified engineering controls.
(a) Evaluation and Testing of Administrative Controls.
The Corporation may commence its evaluation of administrative and/or work practice controls at its discretion before or during the evaluation and testing of engineering controls. Should the Corporation test or implement job rotation as a means of addressing ergonomic stressors, it agrees to implement any such rotation according to the provisions of Appendix A of this Agreement. (b) Administrative Controls which are Not Feasible Any administrative controls recommended by OSHA in Citation No. 1 and by the Consultant which are determined not to be feasible in reducing Ergonomic Stressors shall be listed together with the reasons for determining that the control would not be feasible and any file regarding same shall be made available to OSHA.
(c) Priority of Engineering Controls.
The Corporation shall not utilize administrative controls, including work practice controls, in lieu of feasible engineering controls. (d) Employee Conditioning. Where appropriate and feasible, as determined by the Consultant and the Corporation, in Cited Operations and Ergonomic Stressor Operations, new or reassigned employees to those jobs shall be given the opportunity to condition muscle/tendon/nerve groups. This could be accomplished in a manner deemed feasible by the Consultant and the Corporation and could include a gradual assumption of duties, adjusted work pace, the use of a trainer, or variation of tasks performed by the employees, until such time as they can achieve full rate of production.
(e) Rest Breaks. The Corporation will continue its rest breaks which help to relieve fatigued muscle/tendon/nerve groups.
5. Documenting Abatement Methods. The Corporation agrees to file, maintain and provide to OSHA, in appropriate quarterly reports, a record of all implemented abatement methods, both OSHA's and its Consultant's, together with information on the testing, if conducted, and implementation of each. For any abatement methods which are not implemented, the Corporation agrees to maintain on file documentation from the Consultant which explains or describes the reason or reasons for not implementing a particular abatement method, and to provide access to same to OSHA on request.
6. Employee Input. Employee input on ergonomic issues is and will continue to be considered and encouraged through employee representation in the ergonomic council, input to the safety committee, employee involvement forms and employee meetings. Input may include, among others, potential methods of significantly reducing or eliminating ergonomic stress. Employees on jobs being evaluated will be specifically encouraged to provide input.
B. Orientation and Training Program At the time of execution of this Agreement the Corporation, with input from a Consultant, has developed a formal training program which has been and is being implemented. The Corporation agrees that its program shall include all of the following, if it does not already do so. The program required by this Agreement consists of various training program and aids. This program shall include refresher training sessions regarding CTDs, and specific training for jobs identified as Cited Operations and Ergonomic Stressor Operations. The training shall be presented, as set forth below, to all employees of the Corporation, supervisors and medical personnel.
1. Training Components. (a) General. The general training program, given to all employees who perform production operations, is of at least one and-one-half to two (1 1/2 - 2) hours duration, including time for questions and answers. The presentation includes training to inform employees as to the Corporation's ergonomic program, responsibilities of employees and others who are part of the program, ergonomic aspects of the Corporation's working environment which may affect them, instruction as to movements and postures which may cause or aggravate CTDs, and identification of risk factors, reporting, symptoms, and activities which may be utilized to prevent, control, or alleviate ergonomic problems. This training will also provide direction to those employees who, after following the instruction provided, manifest physical difficulties (soreness and/or restricted movement) beyond that which would normally be expected. These employees will be encouraged to report any such difficulties for appropriate treatment and disposition.
Those aspects of the general program which have not already been developed will be developed within ninety (90) days after execution of this Agreement. At the time of execution of this Agreement, the described general training program has been given to the majority of employees who perform production operations. Those remaining employees who perform production operations who have not yet received the general training shall be given the training within sixty (60) days after the execution of this Agreement.
(b) Job Specific. Where appropriate and feasible as determined by the Consultant and the Corporation, in Cited Operations and Ergonomic Stressor Operations, training shall be provided concerning methods of controlling ergonomic stressors including force, repetition, posture and vibration. Training shall also cover proper use of equipment, and other CTD reduction practices. For example, employees using hand tools shall receive demonstrations relating to proper use of the tools, proper adjustments of counterbalancing devices, proper knife sharpening, where appropriate, and proper use, care of and adjustment of devices associated with individual work duties. This training shall be given: i) for Cited Operations, within six (6) months after the ergonomic analysis called for in this Agreement; and ii) for Ergonomic Stressor Operation, within six (6) months after the ergonomic analysis identifying the operation as an Ergonomic Stressor Operation. Training shall be updated with changes in the state of technology and as control measures are implemented (both engineering and administrative) as deemed appropriate by the Corporation based on recommendations of the Consultant. Refresher training under this Agreement shall be under subsection IV.B.1.(e) below.
The Corporation will continue its current practice of specific training for new or reassigned employees which involves demonstrations and a reasonable amount of time to practice proper work techniques.
(c) Managers/Supervisors. Managers and supervisors of employees who perform production operations shall be given ergonomics training which includes instruction on the principles of the general training received by the employees under their supervision. They shall also receive training regarding the importance of observing how employees perform job tasks, recognition of early signs of CTDs, correction of hazardous work practices, and activities which may be utilized to prevent or control CTDs.
The Corporation represents that this training has been given to all employees who manage or supervise employees who perform production operations. Any such manager or supervisor who missed such training will be given the training within sixty (60) days following execution of this Agreement. Newly hired or promoted supervisors shall receive the specified training developed pursuant to this Agreement within the first thirty (30) days of their promotion or assignment.
Supervisors shall also receive job-specific training for Cited Operations and Ergonomic Stressor Operations within their respective area of responsibility. All designated supervisors shall be given this component: i) for Cited Operations, within six (6) months after the ergonomic analysis called for in this Agreement; and ii) for Ergonomic Stressor Operations, within six (6) months after the ergonomic analysis identifying the operation as an Ergonomic Stressor Operation, and thereafter, as to Cited Operations and Ergonomic Stressor Operations, on an annual basis.
(d) Engineers. Applied ergonomics training has been given to all persons holding industrial engineer and/or manufacturing/process engineer positions with the Corporation. All new hires in these positions will be given this training. The applied ergonomics training, focuses on the process of identifying and analyzing ergonomic problems, and designing ergonomic solutions.
(e) Designers. Ergonomics training which emphasizes designing for manufacture has been given to all designers and developmental engineers. All new hires in these positions will be given this training.
(f) Office Employees. Office ergonomics training has been or will be given to office employees. It instructs employees on how to enhance their comfort and reduce fatigue by adjusting their existing workstations and integrating health/comfort strategies into their work routines.
(g) Medical. Employees of the Corporation's Medical Department, including all full and part-time health care providers at the Corporation, shall receive training which shall include instruction in the principles of the training received by employees engaged in production operations, a detailed review of the medical aspects of CTDs, how to perform a medical evaluation, written treatment protocols, the proper use of any diagnostic instruments which will be used, how to complete necessary forms and reports, and the importance of proper follow up. The training, including plant walk-throughs, shall also include education on the specific operations which have been identified by the Consultant as causing or likely to cause CTDs, the ergonomic stressors involved, the availability of appropriate light/alternate duty, restricted work job, and recordkeeping whenever appropriate. The Corporation agrees that, if and when, substitute or temporary health care providers are employed they will each be provided with written treatment protocols for diagnoses and treatment of employees who may present signs and/or symptoms of CTDs. Substitute or temporary health care providers employed for more than two weeks at a time shall receive the training described for full and part-time health care providers.
All medical personnel, including nurses, shall be given this component within six (6) months after execution of this Agreement with at least annual refresher training. Medical training may be provided by a physician or physicians designated by the Corporation. The Corporation may develop a video training program for the training of medical personnel.
(h) Trainers. The Corporation represents that training was given to three (3) employees selected by the Corporation to assist with ergonomics training. This training, of approximately sixteen (16) hours duration, consisted of Practical Industrial Ergonomics (Joyce Institute) training followed by participation in a Personal Ergonomics Seminar (Joyce Institute) assisted and observed by one of the course instructors' trainers.
(i) Refresher Sessions, Updates, Employee Training. Appropriate refresher sessions will be given at least once every six months to all employees who have received the ergonomics' training described in Section V.B.1.a. above. In addition, whenever new engineering or administrative controls are implemented, the ergonomic impacts of these shall be addressed with each employee directly affected by the new controls no later than 10 working days after implementation. New employees, supervisors, and medical personnel shall be provided training as part of orientation. Any video training aids developed under the training program shall be provided to OSHA. The Corporation shall identify, and shall not be required to disclose, any confidential or proprietary video training aids absent execution of an appropriate confidentiality agreement by OSHA or any other party seeking the video training aids.
C. Medical Management Program: 1. Scope of the Program. Samsonite represents that at the time of execution of this Agreement it has established a program to aid in the early detection, treatment and follow-up of CTDs. Insofar as the Corporation's program does not incorporate all of the following, the Corporation shall, by one hundred twenty (120) days after execution of this Agreement, expand its medical management program to include all of the following provisions. The program shall include provisions for prompt evaluation of employee symptoms, and for evaluation by a physician prior to an employee's return to work following lost time. When directed by an authorized treating physician(s) or by the medical department, employees shall be given sufficient time for the involved muscle/tendon/nerve to heal to the point where a physician determines that return to work is appropriate. This time shall include time off work, and may include transfer to another job which it is believed poses a lessor risk of such injuries. When injured employees require time off work, upon returning to work they shall be permitted to recondition the injured muscle/tendon/nerve group by gradual resumption of duties over a reasonable period of time when directed by the authorized treating physician(s), in addition to any other prescribed treatments.
The term "authorized treating physician" used in this Agreement refers only to those physicians who are designated by the Corporation. It is not the intent of this Agreement to dictate course of treatment, or to solve any disputes among treating physicians.
2. Elements of the Program. The medical management program shall include the following elements:
(a) The health care providers, including the nurses and physicians, whether contractors or employees of the Corporation, shall be trained in the early recognition, evaluation, treatment, rehabilitation, and prevention of CTDs, recordkeeping requirements where appropriate, and physical assessment of employees.
(b) Health care providers shall perform workplace walk-throughs which will allow the direct observation of individual work practices in order to remain knowledgeable about plant operations. This should be done at least monthly and shall be documented.
(c) A CTD surveillance shall be performed in order to identify jobs needing intervention to reduce or eliminate ergonomic hazards. Health care providers will provide input in the design and operation of the surveillance system and shall help identify high risk departments, and/or jobs.
(d) Evaluation and treatment of employees with complaints consistent with CTDs shall be based on protocols reflecting the employee's medical history insofar as it is known to the health care provider, and the physical examination. Written protocols for medical surveillance for the evaluation, treatment, and follow-up of workers with signs and symptoms of CTDs shall be used. These protocols shall be reviewed by a physician and updated at least annually, as evidenced by the physician's signature and date of review.
All health care providers will be trained to use these protocols, which will be written and will include the following:
i. Standardized physical examination including inspection, palpation and appropriate range of motion, as well as other testing upon presentation of symptoms related to CTDs.
ii. Specified protocols for the treatment of employees exhibiting physical signs or symptoms of CTD. Splints should not be used during working activities unless it is determined that no deviation or blending of the splinted limb is required on the job.
iii. Specified protocols for follow-up and for referrals including, but not limited to, the following: symptomatic employees shall be followed up to determine the effectiveness of the prescribed treatment; and, employees with severe symptoms, positive physical findings or disorders, that persist or worsen, shall be referred to a physician for further evaluation.
iv. Reevaluation of an employee complaining of CTD shall be conducted in three (3) to four (4) working days (working days refers to the employee's schedule) or as soon thereafter as possible. If initial treatment of the CTD has not resulted in improvement or resolution of the symptoms, the authorized treating physician shall determine what, if any, restrictions shall be placed on the employee. If the employee has lost work time, the authorized treating physician shall determine whether and under what conditions the employee may return to work. If the condition is unchanged, a further evaluation shall be conducted within three (3) to four (4) working days or as soon thereafter as possible.
v. Conservation methods of treatment will be given first priority. A second opinion will be recommended for CTD's for which surgery has been recommended.
It is the parties' belief that conservative therapy and time away from the job causing the problem deserves an adequate trial before surgical intervention is contemplated. Referrals to outside medical persons shall be made only to persons who hold themselves out as competent to diagnose and treat CTDs. Recommendations for surgery should be referred for a second opinion to a physician other than a surgeon. A physical evaluation of the worker after lost time from work, to assess work capabilities shall be performed prior to the employee returning to work.
If the employee is being medically followed for CTDs, the medical department will notify the ergonomic engineer of the job causing the problems. If a job has no ergonomic analysis available, the job will be scheduled for ergonomic analysis.
(e) The Corporation's Medical Department shall be responsible for entering the appropriate information onto the OSHA forms, or their equivalent as permitted under 29 C.F.R. 1904, and those responsible for the recordkeeping will be appropriately and adequately trained on OSHA's recordkeeping requirements.
(f) Evaluation of the medical management program will be performed on a periodic basis at least annually with the goal of continuing the effectiveness of all of the elements and to reflect changes in treatment.
(g) All employees who perform production operations will be surveyed to establish a baseline for measurement of frequency of symptoms in the upper extremities. A Worker Involvement, or Symptom, Survey developed by the Corporation and its Consultant will be administered to all such employees. The survey will be designed to aid the Consultant's and the Corporation's understanding of how each job is performed and help identify the existence and source of ergonomic stressors in the workplace and any symptoms associated with CTDs. The survey shall be used only by the Consultant and/or the Corporation, only as a tool in conjunction with other methods of analysis, and for no other purpose. The survey will be drafted within sixty (60) days of the execution of this Agreement and will be administered to such employees within three (3) months thereafter. The survey will be readministered annually during the life of this Agreement subject to reevaluation by the Consultant as to content and feasibility.
3. Light Duty/Alternate Duty Jobs. Within twelve (12) months after execution of this Agreement any light/alternate duty jobs which exist at by the Corporation shall be analyzed for CTD potential. This analysis shall include the procedures used in the performance of each job, including lifting requirements, postures, hand grips, and frequency of repetitive motion, and other risk factors. The results of such analysis shall be reduced to written form and provided to nurses, doctors, and supervisory personnel involved in the assignment of light/alternate duty jobs with the goal being that a worker is assigned a job that will not further aggravate involved muscle/tendon/nerve groups. OSHA and the Union will be provided with the written result of the analysis.
4. Nondiscrimination. No employees shall be discriminated against because they reasonably request to and visit the medical facilities or because they have diagnosed CTD problems and are undergoing medical rehabilitation, except that such bona fide job restrictions as may be imposed for medical reasons by persons authorized to impose such restrictions shall be permitted. Samsonite will continue to comply with Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and all other Federal laws prohibiting discrimination.
5. Previously Unevaluated Job Performance. When an employee in an operation not previously evaluated by the Consultant reports a confirmed CTD to the Corporation's Medical Department, the Corporation shall evaluate that employee's actual performance of the job to determine whether or not ergonomic risk factors exist, and whether or not corrective action is necessary.
V. Historical Analysis
The parties agree that an analysis of present CTD conditions may be helpful to measure progress in this effort to reduce the incidence of CTDs. Accordingly, within three (3) months after execution of this Agreement, the Corporation shall provide to the Denver Area Office of OSHA a listing of work-related CTD illnesses for calendar year 1992. This listing shall include the job being performed by the employee at the time of diagnosis, the length of time the employee worked at the facility, the length of time the employee worked at the particular job, and the type of CTD reported by the employee. The purpose of this report will be to appraise the parties, as well as possible based on available information (e.g., OSHA 200 logs, OSHA form 101 or its equivalent), of the departments having the highest prevalence of CTD illness potential.
VI. Periodic Program Meetings
A. The parties shall meet on a semi-annual basis to discuss the Corporation's progress in dealing with CTDs. The contact persons for initiation of such meetings shall be the Director of Denver Operations, a position filled at the time of execution of this Agreement by Bob Lattimore, or his designee, and the Denver OSHA Area Director, for OSHA, a position filled at the time of execution of this Agreement by Bobby Glover.
B. Within thirty (30) days after execution of this Agreement, the Corporation shall provide OSHA with the name of the Management Representative, who shall meet with the Denver OSHA Area Director within sixty (60) days thereafter to discuss activities under this Agreement.
C. The Corporation's employees are represented by a Union; the Union will be appraised by OSHA of the meeting, so that the Union representative(s) may attend. VII. Entry Onto Corporation Facilities
A. OSHA Access. The Corporation agrees to allow OSHA access to its facilities and to appropriate documents to determine progress and compliance with this Agreement and to conduct compliance inspections under the Occupational Safety and Health Act (complaint inspections, facility investigations and general schedule inspections). OSHA agrees that, assuming implementation of the Agreement by the Corporation, it shall not conduct any programmed inspections as to recordkeeping or ergonomic issues covered by this Agreement.
B. Monitoring Inspections. OSHA may conduct monitoring inspections as to recordkeeping and/or ergonomic issues in order to ascertain the Corporation's compliance with this Agreement.
1. Conditions Covered by this Agreement. If, during the course of any inspection conducted during the life of this Agreement, OSHA detects a situation or condition related to the coverage of this Agreement which would ordinarily result in citation, OSHA will determine whether the condition is being or will be addressed as part of the Corporation's activities pursuant to this Agreement. If the condition is reasonably being or will be addressed pursuant to this Agreement, no citation shall be issued.
2. Conditions Not Covered by this Agreement. or necessary. Reports required under this Agreement shall also be submitted to Samsonite's Union through its representatives. The Corporation shall not be required to disclose any confidential or proprietary information or material absent execution of a Confidentiality Agreement by the party seeking such information.
IX. Dispute Resolution
The Corporation, with advice and guidance from Consultant, has undertaken a program the goal of which is to significantly reduce or eliminate CTDs at its place of business. As set forth in this Agreement, the Corporation has agreed to implement engineering and, where necessary, administrative controls which, after evaluating and testing as necessary, it and its Consultant agree are feasible. If the Corporation determines, with the advice and guidance of the Consultant, that a particular abatement recommendation of OSHA's is not feasible, it will so notify OSHA. OSHA will be permitted a 30 day period to formulate a written response. If OSHA disagrees with the Corporation's determination, it will state its points of disagreement, and the reasons it disagrees in writing so that the Corporation can review them with the Consultant. OSHA and the Corporation 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.
X. Modification of Abatement Dates
The Corporation and OSHA recognize that certain unforeseeable events may necessitate delays in the completion of individual portions of this Agreement (e.g., delays in the shipment or delivery of tools, or parts necessary for the implementation of engineering controls). In such event, the Corporation shall notify OSHA and employees in writing at least 10 days prior to the date called for in this Agreement of the need for an extension of time and the reasons therefor. Assuming that OSHA has no objection, the dates for abatement set forth in this Agreement will be deemed to be modified by the Corporation's request. If OSHA should object to the request, it will notify the Corporation as soon as possible and the Petition For Modification of Abatement (PMA) procedures at 29 C.F.R. 1903.14(a) will apply.
XI. Treatment of Confidential Material
It is understood that the reports generated by the activities described in this Agreement shall be handled pursuant to Section 15 of the Act (29 U.S.C. p664), 18 U.S.C. p1905, and 29 C.F.R. p1903.9. The Corporation shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or business confidential material.
XII. Compromise of a Disputed Claim
It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. The Corporation specifically denies any and all allegations that it violated the Act. Except for enforcement actions or proceedings under the provision of the Occupational Safety and Health Act of 1970, nothing in this Agreement, including the Agreement itself, its execution, nor any Final Order, is an admission or evidence, nor is it to be construed as an admission or treated as evidence, of any violation of the Act by the Corporation. Further, nothing in this Agreement is, or is to be construed as, an admission by the Corporation that any employee's CTD is work-related or that the Corporation's approach to or program for addressing any CTDs is or has been at any time in violation of the Act. This Agreement is being entered into solely to avoid further litigation and expense to the parties.
XIII. Recordkeeping Agreement
The Corporation represents that it has implemented a program to examine relevant records in its possession of all employees with the goal that the required records be in compliance with the regulations of 29 C.F.R. Part 1904, the instructions on OSHA Form No. 200 Log, and the Revised Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics in April, 1986 (the "1986 BLS Guidelines"). The Corporation agrees that, to the extent it has not already been done, its program shall include all of the following: 1) entry on the 200 log of the injuries and illnesses cited by OSHA; and 2) entry of all other instances that were properly recordable from January 1, 1990 to the date of execution of this Agreement.
The Corporation agrees to act in good faith to maintain its occupational injury and illness records in accordance with the regulations of 29 C.F.R. Part 1904, the OSHA 200 log and its instructions, and the 1986 BLS Guidelines, as the same may be amended from time to time.
The Corporation represents that it has provided training in OSHA injury and illness recordkeeping requirements for those of its employees having responsibility for recordkeeping. The training program, conducted by individuals knowledgeable in the recordkeeping requirements, covered the regulations of 29 C.F.R. Part 1904, the instructions on OSHA Form No. 200 Log and OSHA Form 101 or their acceptable equivalents and the 1986 BLS Guidelines. Newly-appointed recordkeepers shall be given similar training. Refresher training as to recordkeeping requirements shall be conducted at least annually, or as soon thereafter as such training is reasonably available.
The Corporation will implement the following procedures: Pending an investigation and final determination, if a case otherwise meets the requirements for recording, the Corporation shall record injuries and illnesses which (1) involve filed workers' compensation claims, (2) involve sickness or accident claims for which occupational causation is claimed, (3) involve medical restrictions or job rotations or job transfers, (4) involve physical findings of CTD, (5) involve one subjective symptom and medical treatment and/or lost workdays, (6) involve aggravation of CTD, or (7) involve medical treatment. If a case is removed from the log as a result of the investigation, the Corporation will maintain a record of the reasons for removal and make it available to the OSHA Area Director of the Denver Area Office.
Within seven (7) months of the execution of this Agreement by all parties hereto the Corporation shall provide OSHA-OFP with a report certifying that the actions required in this Part XIII have been implemented. The report will outline all programmatic changes made by the Corporation to implement this Part XIII.
XIV. Term of Agreement
This Agreement shall be in effect for a period of four (4) years from the date of signature. The Agreement will remain in effect thereafter unless and until either the Corporation or OSHA gives the other party sixty (60) days notice that the Agreement is canceled.
Wherefore, the Secretary of Labor and Samsonite Corporation agree that under the above noted conditions this matter before the Commission as Docket Nos. 91-2742 and 91-2741 (Consolidated) are hereby settled.
Executed this 29th day of January , 1993. FOR COMPLAINANT: FOR RESPONDENT: JUDITH E. KRAMER Deputy Solicitor of Labor _________________________ TOM LEONARD TEDRICK A. HOUSH, JR. President Regional Solicitor Samsonite Corporation 11200 East Forty-Fifth Ave. Denver, CO 80239 __________________________ _________________________ KATHLEEN BUTTERFIELD KIMBERLY TAYLOR HENRY Attorney Counsel for Respondent __________________________ ROBERT S. BASS FOR THE UNION: Attorney U.S. Department of Labor _________________________ Office of the Solicitor ALTON W. BRAY 911 Walnut Street, Room 2106 President, URW, Local 724 Kansas City, MO 64016-2085 4695 Kingston Street, Unit A Denver, CO 80239 ___________________________ _________________________ SUSAN A. WOLFF LOUIS S. BELICZKY Senior Trial Attorney Director of Industrial Hygiene, Safety & Office of the Solicitor Workers Compensation 200 Constitution Avenue, N.W. 87 South High Street Room S-4004 Akron, OH 44308 Washington, D.C. 20210 ___________________________ RUSSELL B. SWANSON Deputy Assistant Secretary for Occupational Safety & Health U.S. Department of Labor
If the Corporation tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs into which employees could feasibly be rotated must have been completed prior to commencing job rotation. The Corporation, with the advice and guidance of the Consultant, must demonstrate that any job an employee could be rotated into, possesses decreased and/or different ergonomic stressors from those of the employee's regular job. Prior to rotation, the physical procedures used in the performance of each job, including lifting requirements, postures, hand grips, and frequency of repetitive motion, shall be analyzed to assure similar physical demands on the same muscle/tendon/nerve groups are not made as employees are rotated. The Corporation agrees to monitor employees who rotate to assure that they do not demonstrate an increase in the incidence of CTDs as a result of such rotations. The Corporation shall consider all relevant data, including the use of Worker Involvement Surveys. The Corporation shall provide OSHA and the Union with a list of jobs within the rotation. For those jobs contained within the rotation, new or reassigned employees must be provide on-the-job training sufficient to perform the job safely.
__________________________________ SECRETARY OF LABOR ) UNITED STATES DEPARTMENT OF LABOR,) Complainant, ) OSHRC DOCKET ) NO. 91-2741 ) 91-2742 ) (CONSOLIDATED) v. ) ) SAMSONITE CORPORATION, ) Respondent. ) ----------------------------------) UNITED RUBBER, CORK, LINOLEUM & ) PLASTIC WORKERS OF AMERICA ) AFL-CIO, CLC, LOCAL 724, ) Authorized Emp) Representative) __________________________________)
FINAL ORDER The parties have filed a Stipulation and Settlement Agreement including an Ergonomic and Recordkeeping Agreement in the above-captioned matter. The content of the aforementioned Agreements is incorporated by reference in this order.
The Stipulation and Settlement Agreement including the Ergonomic and Recordkeeping Agreement is hereby approved and shall be deemed a final order of the Commission.
It is SO ORDERED.
_________________________ JAMES A. CRONIN, JR. Judge, OSHRC Dated: January 29, 1993