"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."
_________________________________________
ELIZABETH DOLE, SECRETARY OF LABOR, )
)
Complainant, )
)
v. ) OSHRC Docket
) No. 87-0800
)
CHRYSLER MOTORS CORPORATION, )
Belvidere Assembly Plant, )
)
Respondent. )
________________________________________)
INTERNATIONAL UNION, UNITED )
AUTOMOBILE WORKERS AND ITS LOCAL )
1268, UNITED AUTOMOBILE WORKERS, )
)
Authorized Employee )
Representative )
________________________________________)
ELIZABETH DOLE, Secretary of Labor, United States Department of Labor ("Complainant"), CHRYSLER MOTOR CORPORATION ("Respondent"), the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (the "UAW"), and UAW LOCAL NO. 1268 ("Local 1268") hereby agree to the settlement of Item Number 2, Citation Number 02 of this case based on the terms and conditions set forth below.
1.1 The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq., hereinafter the "Act").
1.2 Respondent, Chrysler Motors Corporation, is a corporation with its principal place of business in Highland Park, Michigan. It has been at all times material to this proceeding engaged in the business of automobile manufacturing. During the course of its business, its employees perform various tasks in the nature of automobile manufacturing. During the course of its business, Chrysler, at its Belvidere, Illinois, facility, uses material and equipment which it receives from places located outside Illinois. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(3) and 3(5) of the Act, and has employees as defined by Section 3(6) of the Act, and is subject to the requirements of the Act.
1.3 As a result of an inspection conducted on November 4, 1986 through February 17, 1987, at Chrysler's Belvidere, Illinois facility, citations alleging violations of the Act were issued to Chrysler on May 1, 1987, pursuant to Sections 8 and 9 of the Act. Item Number 2, Citation Number 02 alleged thirteen willful violations of Section 5(a)(1) of the Act for exposing employees to the hazard of cumulative trauma disorder. A notification of proposed penalty in the amount of $65,000 was also issued to respondent on May 1, 1987.
1.4 Chrysler disagreed with the citation and notification of proposed penalties and filed a notice of contest. The contest was duly transmitted to the Commission.
1.5 The International Union, United Automobile, Aerospace and Agricultural Workers of America, and its Local 1268, United Automobile Workers, as authorized employee representative, filed a notice of contest as to the reasonableness of the abatement period set in the citation.
1. General Recognition Language.
1.1 The parties to this agreement recognize that cumulative trauma disorders (hereinafter "CTD's") are an occupational illness prevalent in the automobile assembly industry.
1.2 The parties also recognize that the control of CTD is a complex issue often requiring the application of a number of different control methods and technologies. These include an ergonomically safe design - which includes engineering controls to reduce or eliminate job related CTD stressors, 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; or administrative controls - such as job enlargement, job rotation or rest pauses.
1.3 The term CTD shall include, but is not limited to, the following conditions: chronic soft tissue problems of the musculoskeletal and peripheral nerve system. Examples of specific diagnoses within this class of disorders include tendonitis, tenosynovitis, synovitis, carpal tunnel syndrome, stenosing tenosynovitis of the fingers (trigger finger), and epicondylitis (tennis elbow or golfer's elbow).
1.4 The parties acknowledge that this agreement is intended to implement a comprehensive ergonomics program at Respondent's Assembly Plants at Belvidere Assembly Plant, Belvidere, Illinois, St. Louis I and St. Louis II Assembly Plants, St. Louis, Mo., Newark Assembly Plant, Newark, Delaware, and Toledo Jeep Assembly Plant, Toledo, Ohio (Collectively the "Assembly Plants"). The program shall be based upon the pilot study to be conducted at Respondent's Belvidere Plant as provided herein.
1.5 The parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTD's. the contact persons for initiation of such meetings shall be the Director of Occupational Safety and Health Services for the Company and the Deputy Director for Compliance Programming for OSHA and the UAW Coordinator for Health and Safety, Chrysler Department.
1.6 Within 30 days after execution of this agreement, the Company shall provide the Secretary with the name of a management contact person from each facility covered by this agreement each of whom shall meet with the appropriate OSHA Area Director within 60 days after execution of this agreement, and on a regular basis thereafter, to discuss activities undertaken by the facility pursuant to this agreement. The UAW contact person noted in the paragraph above shall be given notice of such meeting by the facility management and afforded the opportunity to participate or to send a designee.
2. Affirmance of Citations. 2.1 Complainant and Respondent hereby agree that Item Number 2 of Citation No. 02 resulting from OSHA inspection No. 002114940 and issued on May 1, 1987, shall be amended in characterization from "willful" violations to "serious" violations. The penalty of $65,000.00 proposed by Complainant for this item shall be amended to $43,000.
2.2 Respondent hereby withdraws its notice of contest to the above-noted citations and penalties as amended. Payment of the amended penalties shall be tendered to OSHA thirty days after execution of this agreement.
2.3 The UAW hereby withdraws its contest to the reasonableness of the abatement periods set forth in the citation.
3. Baseline Determinations. The parties agree that baseline determinations of present CTD conditions will be helpful to measure progress in this effort. To effectuate such determinations, the following shall occur:
3.1 Within 90 days after execution of this agreement, the Company shall, for each covered facility, provide to OSHA and the UAW a listing of work related CTD illnesses from calendar year 1988 from the OSHA 100 log and 101 forms, and, where available from the log and form, the department and job title at which each employee was working at the time of diagnosis, the type of CTD diagnosed and the activity in which each employee was engaged at the time of injury. The purpose of this report is to apprise the parties, as best as possible from available information, of the facilities and positions within facilities having the greatest prevalence of CTD injury potential.
3.2 OSHA shall at its discretion conduct abbreviated baseline monitoring walkthroughs at covered facilities. The Company shall provide at OSHA's request access to any records relevant to the above monitoring walkthroughs and not protected by the attorney-client privilege. The purpose of these walkthroughs is to form a baseline determination of presently prevailing conditions regarding CTD potentials.
4. CTD Study. Complainant and Respondent hereby agree that Respondent shall conduct surveillance into the incidence, prevalence and causes of cumulative trauma disorders ("CTD") as follows:
4.1. Study. Based upon a generalized survey of all operations at its Belvidere Assembly Plant i Belvidere, Illinois ("The Belvidere Plant"), Respondent shall conduct an in-depth study of those operations that have caused CTD or are otherwise identified, using standard scientific principles, as likely to cause CTD hazards to employees (the "study"). The study shall be completed no later than 15 months after retention of the consultant.
4.2. Methodology. This Study shall include an appropriate combination of (1) work method analysis, (2) risk factor analysis, (3) medical examinations, (4) questionnaires, and (5) other appropriate study methods.
4.3. Study Areas. The Study shall consider and evaluate the following:
4.3.1 The 13 operations cited by OSHA in the Citation (hereinafter the "13 operations") to the extent they exist in the same or comparable form at the Belvidere Plant.
4.3.2. The applicable operations identified in the March 1986 MVMA ergonomics study.
4.3.3. The operations suggested as likely problem areas by injuries and illnesses reported on the OSHA 200 log or other injury and illness records at the Belvidere Plant.
4.3.4. Other problems brought to the attention of the consultant by the Belvidere Plant's Local Joint Committee on Health and Safety.
4.3.5. Other CTD problems determined by the consultant (as defined in Section 7 hereof).
4.3.6. Anthropometry, posture, forces, tools, equipment, work stations, as well as the frequency of actions, vibration, and work recovery cycles.
4.3.7. Input from employees whose jobs are being evaluated.
5. Pilot Ergonomics Program. Based upon the identification by the study of those operations that have caused or are likely to cause CTD hazards to employees (hereinafter "the Hazards") Respondent hereby agrees as follows:
5.1 Feasibility Studies. Respondent shall conduct feasibility studies of engineering, work practice, and administrative controls for the reduction or elimination of each of the Hazards identified by the Study.
5.2 Feasible Controls. Respondent shall implement, to the extent they are feasible, engineering, work practice or administrative controls, identified by the Study (hereinafter collectively referred to as the "Controls").
5.2.1. Engineering Controls: The Company shall consider an appropriate combination of feasible engineering controls including the following:
5.2.1.a. Reduction of extreme postures through such measures as re-design and re-orientation of tools, parts and equipment, and providing adjustable fixtures and work stations.
5.2.1.b. Reduction of excessive force by such means as automation, use of mechanical devices, power tools, and job redesign to allow mechanically advantageous postures.
5.2.2. Work Practice and administrative controls: When engineering changes are determined to be insufficient to significantly reduce the ergonomic stressors that have caused or are likely to cause CTD, the Company shall consider work practices and administrative controls, including job enlargement, rotation, and the reduction of the amount of repetitive motion per employee per shift.
5.2.3. The Company shall train employees in the controls implemented. (This training shall be in addition to the training that the Company performs on the medical aspects of CTD, the importance of early reporting and treatment, the movements and positions that aggravate CTD, and activities that may be identified as useful in preventing CTD.)
6. Completion of Pilot Program. Respondent agrees that the study and the pilot ergonomics program outlined in sections 4 and 5 (The "Program") shall be completed and that a final program report (The "Report") shall be submitted to OSHA and the employee representative (UAW) within two years after Respondent's retention of the Consultant. The report shall include the following:
6.1. all recommendations made by the consultant.
6.2. all measures implemented.
6.3. all measures recommended by the consultant and not implemented and reasons therefor.
6.4. results of the program.
7. Scientific Consultant. Complainant and Respondent hereby acknowledge the benefits to the program from Respondent's retention of a scientific consultant, and hereby agree as follows:
7.1. Selection of Scientific Consultant. Within 90 days after execution of this agreement respondent shall retain a scientific consultant to assist in the Program and in the preparation of the Report (the "Consultant"). The consultant shall be qualified by education, training and experience in the field of ergonomics and demonstrate expertise in engineering related to ergonomics, epidemiology, and medical surveillance. Prior to retaining the Consultant, Respondent shall provide Complainant with the name, experience and credentials of the Consultant.
7.2. The Consultant shall assist in all facets of implementation of this agreement and auditing the Program both at the Belvidere facility and at all other facilities included herein.
7.3. Reports. Respondent shall provide Complainant and the UAW with quarterly progress reports for the Program for the first 18 months after retention of the Consultant, which reports shall include the Consultant's findings, recommendations, a statement about progress on implementing the Controls,, and a statement about the effectiveness of the Program. After the expiration of this 18 month period such reports shall be submitted semi-annually. the reports shall be provided to National OSHA, and to the OSHA area directors having jurisdiction over the Assembly Plants covered by this agreement.
8. Audit System. Complainant and Respondent hereby agree that Respondent shall establish an audit system to ensure the continued effectiveness of the Program including a review of the implemented Controls.
9. Implementation of Pilot Study at Other Assembly Plants. Complainant and Respondent hereby agree as follows:
9.1 Reports Dissemination. Respondent shall disseminate the progress reports to each of the Assembly Plants and to the ergonomics committees and local joint safety and health committees at each of the Assembly Plants for the opportunity to review and study the feasibility and appropriateness, taking into account the characteristics of each of the Assembly Plants, of implementing, at their respective Assembly Plants, the Controls successfully implemented at the Belvidere Plant. Respondent shall take into account the input of these committees. However, Respondent shall be solely responsible for proper implementation of this agreement.
9.2 Implementation of Controls. Respondent shall implement at the Assembly Plants, to the extent feasible and appropriate taking into account the characteristics of each of the Assembly Plants, the Controls that have been successfully implemented at the Belvidere Plant. Respondent shall use its best efforts to implement those Controls during the term of the Study and to continue such implementation to completion. To the extent that the other Assembly Plants present ergonomic hazards other than or in addition to those existing or determined by Respondent to exist at the Belvidere Plant, Respondent agrees to address said hazards in accordance with the Controls section of this agreement within 3 years after execution of this agreement.
10. Medical Program. The Company shall, no later than 6 months after execution of this agreement, establish a medical program of early detection and treatment of CTD at each of the Assembly Plants.
10.1 The program shall include provisions for prompt evaluation and recording of employee symptoms. Where recommended by a physician, employees with diagnosed CTD's shall be given sufficient time to heal. The Company shall develop a return to work program which may include job transfer, rehabilitation, physical therapy, light duty assignment, gradual reconditioning, engineering changes or other methods. A returning worker will be assigned a job that will not further exacerbate the CTD symptoms.
10.2 Light duty jobs shall be analyzed for CTD potential. This analysis shall include the procedures used in the performance of each hob, including lifting requirements, postures, hand grips and frequency of repetitive motion.
10.3 No employees shall be discriminated against because they reasonably request and visit the medical facilities or because they have diagnosed CTD problems.
10.4 The medical program shall incorporate and develop the following concepts:
10.4.1 A baseline survey to be completed within one year after execution of this agreement designed to measure on a plant-wide basis the extent of symptoms of work-related disorders. The Company shall utilize a uniform questionnaire for employees, the results of which may be collected and processed by automated process, e.g. computer.
10.4.2 When an employee in a job not previously evaluated by the consultant or the Ergonomics Committee reports a CTD to the medical department, the company shall evaluate that employee's actual performance of the job to determine if ergonomic risk factors exist and corrective action is necessary.
10.4.3 A uniform medical management protocol for CTD's will be developed and implemented at each of the Assembly Plants. All physicians and nurses will be trained to use this protocol which will include the following:
10.4.3.1 Standardized physical examination, medical history and recording form. The examination will at least include inspection, palpation and range of motion testing.
10.4.3.2 Specified protocols for the treatment of employees with positive physical signs on examination as well as those with symptoms but no physical signs. Splints should not be used during working activities unless it is determined that no deviation or bending of the splinted limb is required on the job.
10.4.3.3 Reevaluation shall be scheduled in no less than three days. If the condition worsens further medical management should not be undertaken without concurrent efforts to reduce the physical stresses of the job by such measures as job modification, work practice changes, administrative changes, etc. If the condition is unchanged, a further evaluation shall be scheduled in no less than three days.
10.4.3.4 All recommendations for surgery for CTD's will be referred for a second opinion, were permitted by applicable state law.
10.5 This Program shall be implemented at each of the Assembly Plants one month after establishment.
11. General Training and Education.
11.1 General ergonomics training and job specific ergonomics training will be conducted at all of the Assembly Plants. All production employees will receive 1/2 hour of general training in a session to be completed within 12 months of execution of this agreement. All new production personnel will receive this general training during orientation. All employees working at jobs determined under this agreement to be causing or determined under this agreement to be causing or likely to cause CTD hazards will receive a minimum of one half hour of job specific ergonomics training every six months. The first round of this job specific training will be completed at the Belvidere plant within 24 months of execution. The first round of this job specific training will be completed at the other plants covered by this agreement within 36 months after execution.
11.2 Ergonomics: The Program shall include education and training for employees, foremen, supervisors, management, nurses, and physicians on high risk jobs at respective facilities and on the least stressful way to perform these jobs. The company shall determine and inform personnel concerning the stressors responsible for causing and aggravating CTD's.
11.3 Medical: The Program shall include education for employees, foremen, supervisors, management, nurses, and physicians on CTD prevention with emphasis on early symptom recognition. Personnel shall also be educated on the medical management protocol developed to deal with CTD related illness.
12. Entry Onto Company Assembly Plants. The Company agrees to allow OSHA access to each of the Assembly Plants to determine progress and compliance with this Agreement and to conduct compliance inspections under the Occupational Safety and Health Act. OSHA agrees that, assuming implementation of the agreement by the Company, it shall not conduct general schedule inspections as to CTD issues covered by this Agreement at covered Assembly Plants, except that OSHA may conduct baseline and monitoring inspections to determine compliance with this agreement. OSHA also retains the right to conduct all other types of inspections permitted under the OSH Act. OSHA agrees not to issue CTD related citations, unless the company is determined by OSHA not to be implementing this agreement in good faith.
13. Compromise of Disputed Claim. It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Therefore, the parties agree as follows:
13.1 This Settlement Agreement or the statements, actions and findings made by Respondent in connection herewith or hereafter in fulfilling its obligations hereunder do not and shall not constitute an admission by Respondent of any violation of the Act.
13.2 Without limiting the foregoing, this Settlement Agreement shall not be deemed an admission by Respondent of the allegations contained within the Citation, Notification of Penalty and Complaint that are the subject of this proceeding.
13.3 This Settlement Agreement shall not be used in any proceeding before any court, agency, commission or any other body, except for further proceedings under the Act.
13.4 Nothing contained in this Settlement Agreement shall preclude Complainant at the conclusion of the term of this Settlement Agreement from investigating any of the plants or conditions covered in this Settlement Agreement and, if appropriate, to issue citations relating to the conditions covered in this Settlement Agreement.
14. Treatment of Confidential Material. It is understood that the study, feasibility studies, semi-annual reports and the Report generated by the activities described in this agreement, including the audit program, the audit program results, and the action plan, shall be handled pursuant to Section 15 of the Act (29 U.S.C. 664), 18 U.S.C. 1905, and 29 C.F.R. 1903.9. Chrysler shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or business confidential material.
15. Term of Settlement Agreement. This Settlement Agreement shall commence as of November 1, 1989, and shall continue for four years. thereafter, it shall continue in effect unless either OSHA or the Company gives the parties 60 days notice of termination.
16. By joining this settlement agreement, the International Union, UAW and its Local 1268 do not make any representations concerning the safety of respondent's assembly plants or respondent's compliance with the Act and regulations issued thereunder.
17. The parties recognized that there are collective bargaining agreements in effect between the Chrysler Motor corporation and the International Union, UAW and its local unions.
18. In accordance with Rules 7 and 100 of the rules of Procedure of the Occupational Safety and Health Review Commission, Respondent shall give this Settlement Agreement to affected employees by serving a copy of it on the authorized employee representative at each facility covered by this agreement.
FOR COMPLAINANT: FOR RESPONDENT:
SECRETARY OF LABOR CHRYSLER MOTORS CORPORATION
U.S. DEPARTMENT OF LABOR
_____________________________ ___________________________________
ALAN McMILLAN R. J. BRANDT, M.D.
Deputy Assistant Secretary Director, Occupational Safety
of Labor for Occupational and Health Services, Chrysler
Safety and Health Motors Corporation
DATE: 11/1/89 DATE: 10/31/89
____________________________________
ROBERT P. DAVIS STEVEN B. HANTLER
Solicitor of Labor Senior Staff Counsel
Chrysler Motors Corporation
JOHN SECARAS 12000 Chrysler Drive
Regional Solicitor Highland Park, Michigan 48203
_____________________________________
ALLEN BEAN PATRICK R. TYSON
Regional Counsel for Constangy, Brooks and Smith
Occupational Safety Counsel for Chrysler Corporation
and Health 230 Peachtree Street, N.W.
Atlanta, Georgia 30303
______________________________ DATE:
KENNETH A. HELLMAN
Trial Attorney FOR THE AUTHORIZED EMPLOYEE
REPRESENTATIVE, INTERNATIONAL
DATE: 11/2/89 UNION, UNITED AUTOMOBILE WORKERS
AND ITS LOCAL 1268, UNITED
AUTOMOBILE WORKERS
U. S. Department of labor
Office of the Solicitor _____________________________________
200 Constitution Ave., N.W. JOAN PATTERSON, Assistant
Washington, D.C. 20210 Director of the Chrysler
Department, International
Union, United Automobile
Workers of America
800 East Jefferson Avenue
Detroit, Michigan
_____________________________________
RANDY S. RABINOWITZ
Counsel for the Authorized
Representative
4224 40th Street, N.W.