____________________________________
SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
Complainant, ) OSHRC DOCKET
v. ) NOS. 89-2138,
) 89-2139 & 89-2140
CONAGRA POULTRY COMPANY, )
Respondent. )
____________________________________)
Complainant, Secretary of Labor, United States Department of Labor, Respondent, ConAgra Poultry Company, and the United Food and Commercial Workers International 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:
(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 Carthage, Missouri. It has been at all times material to these proceedings engaged in the business of poultry processing. 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 Carthage, Missouri turkey processing plant, citations alleging violations of the Act were issued to Respondent on June 9, 1989, 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 Carthage, Missouri plant, United Food and Commercial Workers District Local 340, elected party status.
The parties move, pursuant to Commission Rule 9, to consolidate Docket Nos. 89-2138, 89-2139, and 89-2140 for purposes of settlement.
(a) Respondent hereby withdraws its notices of contest to the citations and notifications of proposed penalties, as amended herein. This withdrawal, however, is made solely to facilitate the settlement of this matter. It is not to be interpreted as inconsistent with Section VII below.
(b) Complainant hereby amends the total proposed penalty for the citations involved in Docket Nos. 89-2138, 89-2139, and 89-2140 to Four Hundred and Twenty-Five Thousand Dollars ($425,000). Respondent shall submit payment of the total penalty of $425,000 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. 89-2138, 89-2139, and 89-2140, 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 ConAgra Poultry Company 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.
(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 other 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.
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 Food and Commercial Workers by serving a copy of it on said employee representative at Respondent's Carthage, Missouri facility and at each facility listed in paragraph XVII (Intervenor Signature) of the Ergonomic and Recordkeeping Agreement. 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 all other facilities covered by this agreement in a place suitable for review by all employees.
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 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 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 any of the plants or conditions covered by this Agreement and, if appropriate, to issue citations relating to the conditions covered by this Agreement.
(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, 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, 1992.
FOR THE SECRETARY OF LABOR:
___________________________
ALAN McMILLAN
Deputy Assistant Secretary for
Occupational Safety & Health
MARSHALL J. BREGER
Solicitor of Labor
TEDRICK A. HOUSH, JR.
Regional Solicitor
_________________________________
KENNETH A. HELLMAN
Senior Trial Attorney
_________________________________
PATRICK D. GILFILLAN, Trial Att'y
_________________________________
ROBERT S. BASS
Attorney
Room 2106, 911 Walnut, St.
Kansas City, Missouri 64106
(816) 426-6441
Attorneys for
Secretary of Labor
U.S. Department of Labor
FOR RESPONDENT:
_________________________________
G. T. BAUMGARDNER
Vice-President
ConAgra Poultry Company
McGRATH, NORTH, MULLIN, & KRATZ, P.C.
Suite 1100, One Central Park Plaza
222 South 15th Street
Omaha, Nebraska 68102
By:______________________________
Roger J. Miller, Esq.
Attorneys for Respondent
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION
_________________________________
DEBRA K. BERKOWITZ
CONAGRA POULTRY COMPANY
CAG'S ERGONOMIC AND RECORDKEEPING AGREEMENT
F.1/13/92
TABLE OF CONTENTS
Page
I. General Recognition Language & Definitions. . . . . . . 1
A. Recognition of CTD . . . . . . . . . . . . . . . . 1
B. Definitions. . . . . . . . . . . . . . . . . . . . 2
II. Covered Facilities. . . . . . . . . . . . . . . . . . . 2
III. State Plans . . . . . . . . . . . . . . . . . . . . . . 3
IV. The Consultants . . . . . . . . . . . . . . . . . . . . 3
V. Ergonomic Program . . . . . . . . . . . . . . . . . . . 4
A. Identification and Control of Ergonomic
Stressors at the Carthage, Missouri,
Turkey Processing Plant. . . . . . . . . . . . . . 4
1. Ergonomic Analysis. . . . . . . . . . . . . . 4
2. Engineering Controls. . . . . . . . . . . . . 5
3. Implementation of Engineering Controls. . . . 6
4. Documenting Effectiveness
of Engineering Controls . . . . . . . . . . . 8
5. Implementation of Administrative Controls . . 8
6. Employee Input. . . . . . . . . . . . . . . .11
B. Identification and Control of Ergonomic
Stressors at the El Dorado, Arkansas
Broiler Processing Plant . . . . . . . . . . . . .11
1. Pilot Program . . . . . . . . . . . . . . . .11
2. Ergonomic Analysis. . . . . . . . . . . . . .11
3. Engineering Controls. . . . . . . . . . . . .12
4. Implementation of Engineering Controls. . . .13
5. Documenting Effectiveness
of Engineering Controls . . . . . . . . . . .15
6. Implementation of Administrative Controls . .15
7. Employee Input. . . . . . . . . . . . . . . .18
C. Identification and Control of Ergonomic
Stressors at ConAgra's Other Turkey and
Broiler Processing Plants. . . . . . . . . . . . .18
VI. Orientation and Training Program. . . . . . . . . . . .19
A. Training Components. . . . . . . . . . . . . . . .19
1. General . . . . . . . . . . . . . . . . . . .20
2. Job Specific. . . . . . . . . . . . . . . . .20
3. Safety Meetings . . . . . . . . . . . . . . .21
4. Supervisory . . . . . . . . . . . . . . . . .21
5. Medical . . . . . . . . . . . . . . . . . . .22
B. Training Schedule. . . . . . . . . . . . . . . . .22
VII. Medical Management Program. . . . . . . . . . . . . . .23
A. Scope of the Program . . . . . . . . . . . . . . .23
B. Elements of the Program. . . . . . . . . . . . . .24
C. Light Duty Jobs. . . . . . . . . . . . . . . . . .26
D. Nondiscrimination. . . . . . . . . . . . . . . . .26
E. . . . . . . . . . . . . . . . . . . . . . . . . .26
VIII. Historical Analysis . . . . . . . . . . . . . . . . . .27
IX. Periodic Program Meetings . . . . . . . . . . . . . . .27
X. Entry Onto Company Facilities . . . . . . . . . . . . .28
A. OSHA Access. . . . . . . . . . . . . . . . . . . .28
B. Monitoring Inspections . . . . . . . . . . . . . .28
XI. Reports . . . . . . . . . . . . . . . . . . . . . . . .29
XII. Dispute Resolution. . . . . . . . . . . . . . . . . . .30
XIII. Modification of Abatement Dates . . . . . . . . . . . .31
XIV. Treatment of Confidential Material. . . . . . . . . . .32
XV. Recordkeeping Agreement . . . . . . . . . . . . . . . .32
XVI. Term of Agreement . . . . . . . . . . . . . . . . . . .34
XVII. Signatures - Parties. . . . . . . . . . . . . . . . . .35
XVIII. Signatures - Intervenor . . . . . . . . . . . . . . . .36
Appendix A. . . . . . . . . . . . . . . . . . . . . . .37
A. Recognition of CTD
ConAgra Poultry Company and its successors (hereinafter referred to as "the Company"), and the U.S. Department of Labor, Occupational Safety and Health Administration (hereinafter referred to as "OSHA") recognize that cumulative trauma disorders (hereinafter "CTDs") are an occupational illness in the poultry processing industry, and other industries with similar jobs. Many employees in these industries have experienced CTDs in the workplace. The Company and OSHA also recognize that the control of CTDs often requires the application of a number of different control technologies and methods. These include, but are not limited to, an ergonomically safe design, which includes the application of engineering controls to reduce or eliminate job-related ergonomic stressors, e.g., force, position, repetition and vibration and lifting; work practice controls (e.g., proper work techniques, employee conditioning); employee and supervisor training and education; a medical management program aimed at the early detection and treatment of CTDs; early and proper medical diagnosis; and administrative controls. The Company and OSHA also agree that, initially, an increase in the number of CTD cases and the incidence rate for CTDs will not be an unanticipated consequence of improved recordkeeping practices, increased employee awareness brought about by their involvement in the training, orientation and medical management programs which are integral parts of Agreements such as this.
B. Definitions
1. The term CTD shall include the following conditions:
Cumulative trauma disorders (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 tendonitis, tenosynovitis, synovitis, carpal tunnel syndrome, stenosing tenosynovitis of the fingers (trigger finger), and epicondylitis (tennis elbow or golfer's elbow) and low back pain syndrome.
2. "Cited Jobs" shall mean those fifteen (15) jobs specifically identified as Item 1 in Citation No. 2.
3. "Ergonomic Stressor Jobs" shall mean all other production jobs identified by the consultant and/or the Company after the review of all jobs called for in this Agreement as causing or likely to cause CTD.
This agreement covers the company locations described in Appendix A to this Agreement
The Company and OSHA recognize that certain of the facilities covered by this agreement are located in states which have assumed authority for the enforcement of OSHA standards pursuant to section 18 of the Occupational Safety and Health Act. (The plants are followed by an asterisk (*) on Appendix A). It is the Company's intent to meet with each relevant state OSHA authority and to make this agreement available to them. OSHA will encourage each relevant State authority to approve implementation of and abide by the terms of this Agreement.
The Company agrees to retain one or more consultant(s) who 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 (hereinafter "the Consultant"). The Company, shall retain a sufficient number of consultants to satisfy the terms of this Agreement. The consultant(s) shall be retained for the life of this Agreement. The consultant(s) will assist the Company in identifying those jobs and/or processes which pose a hazard of CTD and in developing and implementing the ergonomic program discussed in this Agreement. OSHA shall be notified of the names of each consultant(s) retained and provided with a copy of the consultant's curriculum vitae.
A. Identification and Control of Ergonomic Stressors at the Carthage, Missouri, Turkey Processing Plant.
1. Ergonomic Analysis. Within three (3) months of the date of execution of this Agreement, the Consultant will (1) independently perform an ergonomics analysis of all Production Jobs [including the Cited Jobs] and will review the specific OSHA recommended abatements set forth in citation No. 2 for each of the Cited Jobs listed therein; (2) review and evaluate those ergonomic improvements the Company has already implemented or proposed as part of its ergonomic program; (3) conduct literature and manufacturing searches for tools, devices, or other items that may prove beneficial in the Company's attempts to address the ergonomic stressors identified in the Cited Jobs and Ergonomic Stressor Jobs; and (4) propose abatement recommendations for all Production Jobs [including the Cited Jobs and Ergonomic Stressor Jobs].
The analysis shall evaluate processes with regard to positions, practices, tools and equipment in place or purchased, installed or implemented during the term of this agreement, to identify ergonomic stressors (repetition, force and vibration; and posture). The Company, working with the consultant(s) will identify those positions (jobs) where ergonomic stressors as defined herein exist and cause or are likely to cause CTD, and attempt to determine feasible control strategies which will eliminate or significantly reduce these ergonomic stressors.
The analysis shall also consist of an evaluation of the OSHA 200 logs, 101 forms, medical records and other relevant available documentation, e. g., Worker Involvement Survey; and on-site review by the consultant(s). The on-site review by the consultant(s) will include the use of survey tools such as the taking of measurements, videotaping, and employee input as determined by the consultant(s).
2. Engineering Controls: The Company shall, in conjunction with its consultant(s), evaluate, test and implement all feasible engineering controls including the following:
(a) Reduction of extreme posture shall be achieved through such means as re-orienting the knife or tool handle, providing adjustable fixtures and rotating cutting tables so that the position of the meat or product can be easily manipulated, or by providing work stations and delivery bins that accommodate the heights and reach limitations of various sized workers;
(b) Reduction of excessive force shall be achieved by such means as automating aspects of the process, use of mechanical devices which aid in removing bones or separating meat from bones, use of power tools, maintaining sharp cutting edges on knives and other cutting tools and implementation of adjustable fixtures which allow cuts and movements to be made in mechanically advantageous postures.
(c) Institution of a vibration monitoring and preventive maintenance program for mechanical and power tools and equipment such as Whizard knives and saws, to verify that they are in proper working order and within original manufacturer's specifications.
(d) Frozen meat increases the forces required to perform various cuts. Temperature shall be controlled so that stored meat requiring hand cutting is not frozen at the time of processing. 3. Implementation of Engineering Controls.
(a) Prioritizing Engineering Controls. After the review is completed in No. 1 above, the Company and its consultant(s) will, within thirty (30) days, establish a priority for testing feasible abatement measures recommended by its consultant(s) with respect to the cited jobs and ergonomic stressor jobs identified in Paragraph 1 above. Priority shall be given to the Cited Jobs.
(b) Evaluation of Engineering Controls. Within thirty (30) days thereafter, the Company agrees to commence the evaluation of all of the OSHA recommended abatements specifically identified for a particular Cited Job and those abatement recommendations proposed by the consultant(s) for the Cited Jobs and for Ergonomic Stressor Jobs. All abatement methods determined by the consultant(s) and the company to be feasible will be tested on site. This evaluation and testing shall include consideration of a particular engineering abatement method alone and in combination with other recommended engineering abatement methods. (c) Testing Engineering Controls.
(i) Those feasible engineering controls evaluated in paragraph (b) above will be tested, unless the ergonomic stressors have already been eliminated. If any of OSHA's engineering control recommendations are determined not to be feasible by the consultant(s) or the Company they need not be tested. The Company shall provide OSHA with the basis for its determination in the appropriate quarterly report. If OSHA disagrees with the Company's determination, OSHA and the Company will follow the dispute resolution procedures set forth hereinafter.
(ii) Experimental Work Stations. As part of the testing procedure, experimental work stations will be established when deemed appropriate by the consultant(s) and the Company. The input of employees assigned to work at the experimental work station shall be solicited and evaluated by the consultant(s). During the time employees are assigned to experimental work stations the Company shall not require them to meet any full production quotas until they have been allowed sufficient time to be oriented by the consultant(s) or the Company to the way the Job will be performed at the experimental work station.
(d) Implementation Following Testing. As the Company determines from its evaluation and testing program which of the tested recommended engineering controls are feasible, the Company shall implement them. The Company is committed to implementing the feasible recommended engineering controls as expeditiously as reasonable. The Company agrees to implement all feasible engineering controls at the Carthage, Missouri plant within fifteen (15) months of the execution of this Agreement.
4. Documenting Effectiveness of Engineering Controls. For those feasible engineering controls implemented by the Company, it will, with the advice and guidance of the consultant(s), develop and implement a plan for documenting the degree to which the engineering controls significantly reduce or eliminate the identified ergonomic stressors. This plan shall include, but not be limited to, medical records maintained by the Company on the employees who have worked at Cited and/or Ergonomic Stressor Jobs on which any engineering controls have been implemented, in addition to individual employee input. The Company and consultant(s) shall also utilize the results of medical evaluations done in association with the Worker Involvement Survey which is provided for in the Medical Management portion (Part VII) of this Agreement. This plan will be implemented within six (6) months of the execution of this agreement.
5. Implementation of Administrative Controls.
(a) If engineering controls prove insufficient to significantly reduce or eliminate ergonomic stressors related to CTDs, the Company shall commence the testing and implementation of feasible Administrative Controls recommended by OSHA and the consultant(s), including reducing the number of repetitive motions per employee per shift. Feasible administrative controls shall be implemented at the Carthage, Missouri plant within eighteen (18) months of the execution of this Agreement (three (3) months after the implementation of all engineering controls).
(b) Evaluation and Testing of Administrative Controls. The Company may commence its evaluation of administrative and/or work practice controls at its discretion before or during the evaluation and testing of engineering controls. If the Company tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs into which employees could be rotated must be completed prior to commencing job rotation. The Company, 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 Company 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 rotation. The Company shall consider all relevant data, including the use of Worker Involvement Surveys. The Company 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 provided on-the-job training sufficient to perform the job safely.
(c) Administrative Controls Which are Not Feasible. Any administrative controls which are determined not to be feasible in reducing Ergonomic Stressors shall be listed and any file regarding same made available to OSHA with the reasons for determining that the control would not be feasible.
(d) Priority of Engineering Controls. The Company shall not utilize administrative controls, including work practice controls in lieu of feasible engineering controls. Administrative controls which are implemented prior to the implementation of all engineering controls shall be deemed to be "interim controls" and include, among others, those controls set forth in the Orientation and Training sections of this Agreement.
(e) Employee Conditioning. In those jobs identified as an actual or potential CTD hazard, new or reassigned employees to those jobs shall be given the opportunity to condition muscle/tendon/nerve groups. This could be accomplished by a gradual assumption of duties, adjusted work pace, the use of a trainer or varying tasks performed by the employees until such time as they can achieve full rate of production.
(f) Rest Breaks. The Company will continue its rest breaks which helps to relieve fatigued muscle/tendon/nerve groups.
(g) Documenting Abatement Methods. The Company agrees to file, maintain and provide to OSHA all recommended abatement methods (both OSHA's and its consultant's) evaluated, tested and implemented. For those abatement methods which are not implemented, the Company agrees to maintain on file, documentation from the consultant(s) which explains or describes the reason or reasons for not implementing a particular abatement method and to provide same to OSHA in appropriate quarterly reports.
6. Employee Input. Employee input on ergonomic or CTD issues is and will continue to be considered and encouraged through employee safety meetings. Input will include potential methods of significantly reducing or eliminating ergonomic stress. Employees on jobs being evaluated will be specifically encouraged to provide input.
B. Identification and Control of Ergonomic Stressors at the El Dorado, Arkansas Broiler Processing Plant.
1. Pilot Program. The Company agrees to establish an ergonomics pilot program for broiler processing facilities at its El Dorado, Arkansas processing plant. The parties recognize that various engineering and administrative controls can be considered by the consultant in evaluating, testing and formulating potential solutions.
2. Ergonomic Analysis. Within nine (9) months of the date of execution of this Agreement, the Consultant will (1) independently perform an ergonomics analysis of all Production Jobs and identify Ergonomic Stressor Jobs; (2) review and evaluate those ergonomic improvements the Company represents it has already implemented or proposed as part of its ergonomic program; (3) conduct literature and manufacturing searches for tools, devices, or other items that may prove beneficial in the Company's attempts to address the ergonomic stressors identified in the Ergonomic Stressor Jobs; and (4) propose its abatement recommendations for all Ergonomic Stressor Jobs.
The analysis shall also consist of an evaluation of the OSHA 200 logs, 101 forms, medical records and other relevant available documentation, e.g., Worker Involvement Survey; and on-site review by the consultant(s). The on-site review by the consultant(s) will include the use of survey tools such as the taking of measurements, videotaping, and employee input as determined by the consultant(s).
3. Engineering Controls: The Company shall, in conjunction with its consultant(s), evaluate, test and implement all feasible engineering controls including the following:
(a) Reduction of extreme posture shall be achieved through such means as re-orienting the knife or tool handle, providing adjustable fixtures and rotating cutting tables so that the position of the meat or product can be easily manipulated, or by providing work stations and delivery bins that accommodate the heights and reach limitations of various sized workers;
(b) Reduction of excessive force shall be achieved by such means as automating aspects of the process, use of mechanical devices which aid in removing bones or separating meat from bones, use of power tools, maintaining sharp cutting edges on knives and other cutting tools and implementation of adjustable fixtures which allow cuts and movements to be made in mechanically advantageous postures.
(c) Institution of a vibration monitoring program, where appropriate, including a preventive maintenance program for mechanical and power tools and equipment, such as Whizard knives and saws, to verify that they are in proper working order and within original manufacturer's specifications.
(d) Frozen meat increases the forces required to perform various cuts. Temperature shall be controlled so that stored meat requiring hand cutting is not frozen at the time of processing. 4. Implementation of Engineering Controls.
(a) Prioritizing Engineering Controls. After the review is completed in No. 1 above, the Company and its consultant(s) will, within thirty (30) days, establish a priority for testing feasible abatement measures recommended by its consultant(s) with respect to the ergonomic stressor jobs identified in Paragraph 2 above.
(b) Evaluation of Engineering Controls. Within thirty (30) days thereafter, the Company agrees to commence the evaluation of all those abatement recommendations proposed by the consultant(s) for the Ergonomic Stressor Jobs. All abatement methods determined by the consultant(s) and the Company to be feasible will be tested on site. This evaluation and testing shall include consideration of a particular engineering abatement method alone and in combination with other recommended engineering abatement methods. (c) Testing Engineering Controls.
(i) Those feasible engineering controls evaluated in paragraph (b) above will be tested, unless the ergonomic stressors have already been eliminated. If any engineering controls are determined, not to be feasible by the consultant(s) or the Company they need not be tested. The Company shall provide OSHA with the basis for its determination in the appropriate quarterly report. If OSHA disagrees with the Company's determination, OSHA and the Company will follow the dispute resolution procedures set forth hereinafter.
(ii) Experimental Work Stations. As part of the testing procedure, experimental work stations will be established when deemed appropriate by the consultant(s) and the Company. The input of employees assigned to work at the experimental work station shall be solicited and evaluated by the consultant(s). During the time employees are assigned to experimental work stations the Company shall not require them to meet any full production quotas until they have been allowed sufficient time to be oriented by the consultant(s) or the Company to the way the Job will be performed at the experimental work station.
(d) Implementation Following Testing. As the Company determines from its evaluation and testing program which of the tested recommended engineering controls are feasible, the Company shall implement them. The Company is committed to implementing the feasible recommended engineering controls as expeditiously as reasonable. The Company agrees to implement all feasible engineering controls at the El Dorado, Arkansas plant within eighteen (18) months of the execution of this Agreement.
5. Documenting Effectiveness of Engineering Controls. For those feasible engineering controls implemented by the company, it will, with the advice and guidance of the consultant(s), develop, and implement a plan for documenting the degree to which the engineering controls significantly reduce or eliminate the identified ergonomic stressors. This plan shall include, but not be limited to, medical records maintained by the Company on the employees who have worked at Cited and/or Ergonomic Stressor Jobs on which any engineering controls have been implemented, in addition to individual employee input. The Company and consultant(s) shall also utilize the results of medical evaluations done in association with the Worker Involvement Survey which is provided for in the Medical Management portion (Part VII) of this Agreement. This plan will be implemented within twelve (12) months of the execution of this agreement.
6. Implementation of Administrative Controls.
(a) If engineering controls prove insufficient to significantly reduce or eliminate ergonomic stressors related to CTDs, the Company shall commence the testing and implementation of feasible Administrative Controls recommended by the consultant(s), including reducing the number of repetitive motions per employee per shift. Feasible administrative controls shall be implemented at the El Dorado, Arkansas plant within twenty-one (21) months of the execution of this Agreement (three (3) months after the implementation of all engineering controls).
(b) Evaluation and Testing of Administrative Controls. The Company may commence its evaluation of administrative and/or work practice controls at its discretion before or during the evaluation and testing of engineering controls. If the Company tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs into which employees could be rotated must be completed prior to commencing job rotation. The Company, 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 Company 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 rotation. The Company shall consider all relevant data, including the use of Worker Involvement Surveys. The Company 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 provided on-the-job training sufficient to perform the job safely.
(c) Administrative Controls Which are Not Feasible. Any administrative controls which are determined not to be feasible in reducing Ergonomic Stressors shall be listed and any file regarding same made available to OSHA with the reasons for determining that the control would not be feasible.
(d) Priority of Engineering Controls. The Company shall not utilize administrative controls, including work practice controls in lieu of feasible engineering controls. Administrative controls which are implemented prior to the implementation of all engineering controls shall be deemed to be "interim controls" and include, among others, those controls set forth in the Orientation and Training sections of this Agreement.
(e) Employee Conditioning. In those jobs identified as an actual or potential CTD hazard, new or reassigned employees to those jobs shall be given the opportunity to condition muscle/tendon/nerve groups. This could be accomplished by a gradual assumption of duties, adjusted work pace, the use of a trainer or varying tasks performed by the employees until such time as they can achieve full rate of production.
(f) Rest Breaks. The Company will continue its rest breaks which helps to relieve fatigued muscle/tendon/nerve groups.
(g) Documenting Abatement Methods. The Company agrees to file, maintain and provide to OSHA all recommended abatement methods evaluated, tested and implemented. For those abatement methods which are not implemented, the Company agrees to maintain on file, documentation from the consultant(s) which explains or describes the reason or reasons for not implementing a particular abatement method and to provide same to OSHA in appropriate quarterly reports.
7. Employee Input. Employee input on ergonomic or CTD issues is and will continue to be considered and encouraged through employee safety meetings. Input will include potential methods of significantly reducing or eliminating ergonomic stress. Employees on jobs being evaluated will be specifically encouraged to provide input.
C. Identification and Control of Ergonomic Stressors at Conagra's Other Processing Plants.
1. In other processing plants covered by this agreement, the Company agrees to implement appropriate engineering and administrative controls which have been proven to be feasible in the Carthage, Missouri and El Dorado, Arkansas pilot programs. The Company, along with its consultant(s) will determine which controls are applicable to each plant, taking into account such factors as product produced, equipment used, production rates, CTD incidence rates, and ergonomic stressors common to the jobs in each location. In the case of jobs existing in the other plants which were not addressed in the previous studies, the Company agrees to perform a similar ergonomic analysis -- to that referred to in paragraphs V.A.1. and B.2. and to evaluate, test and implement feasible ergonomic controls.
For these jobs which were not part of the pilot programs at Carthage and El Dorado, the Company will follow the same process in prioritizing, evaluating, testing and implementing engineering and administrative controls. Those controls which are feasible shall be evaluated, prioritized, tested and implemented within a six (6) month time period following completion of that same function at the appropriate pilot plant.
2. The Company will implement all feasible engineering and administrative controls at its other processing plants within thirty (30) months of the execution of this Agreement.
VI. Orientation and Training Program
The Company with input from the consultant(s), will, as indicated below, develop a formal training program to be implemented by each facility covered by this Agreement. This program shall consist of various training aids; quarterly training sessions as part of safety meetings; and specific training for jobs identified as causing or likely to cause CTD hazards. The training components shall be presented, as set forth below, to all employees, supervisors, and medical personnel. A. Training Components
(1) General. The general training program shall be of at least one hour's duration, including time for questions and answers. The presentation shall include training to inform employees as to what they might expect as they are becoming acclimated to the Company's working environment, and movements and positions which may cause or aggravate the condition and activities which may be utilized to prevent, control, or alleviate the problem. This training will also provide direction to those employees who, after following the instruction provided by the Company 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. The general training program will be developed within sixty (60) days after execution of this agreement. It shall be given to all covered employees within sixty (60) days thereafter.
(2) Job Specific. For positions identified as causing or likely to cause CTD, training shall be provided concerning methods of controlling ergonomic stressors including force, repetition, position and vibration. Training shall also cover proper use of equipment, and other CTD reduction practices. For example, employees utilizing knives shall receive demonstrations relating to proper knife care, types of knives and tools and devices associated with individual work duties, and proper knife steeling. This training will involve those operating the knife sharpening equipment. All employees in positions identified as causing or likely to cause CTDs shall be given this component within six (6) months after the ergonomic analysis identifying the position as one causing or likely to cause CTDs. Refresher training under this agreement shall be under subsection (3) below.
Specific training for new or reassigned employees must involve demonstrations and a reasonable amount of time to practice proper work techniques prior to employees being required to work at full capacity.
(3) Safety Meetings. Training on CTDs shall be included at least once every three months as part of regular safety meetings.
(4) Supervisory. Supervisors shall receive the same General training as all other employees under this Agreement. They shall also receive training regarding the importance of observing how employees perform job tasks, and activities which may be utilized to prevent or control the problem. Supervisors shall also receive Job Specific training for jobs identified as causing or likely to cause CTDs within their respective area of responsibility. All designated supervisors shall be given this component within six (6) months after identification of the position as one causing or likely to cause CTDs, and thereafter, on an annual basis. Following development of this training program, 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.
(5) Medical. Medical staff employees of the Company shall receive training which shall include a detailed review of the medical aspects of CTD; how to perform a medical evaluation; treatment protocols, the proper use of diagnostic instruments; how to complete necessary forms and reports; and the importance of proper follow up. The training shall also include education on the specific jobs at respective facilities which have been identified as causing or likely to cause CTDs, the ergonomic stressors involved, and the availability of appropriate light/alternate duty jobs. All medical personnel, including nurses, shall be given this component within six (6) months after execution of this agreement and annually thereafter. Medical Training may be provided by a physician or physicians designated by the Company. The Company may develop a video training program for the training of medical personnel.
B. Training shall be provided at all facilities in accordance with the following matrix:
General Specific Super-
Training for Job- Quarterly- visory Medical
VI.A.(1) VI.A.(2) VI.A. (3) VI.A.(4) VI.A.(5)
All Employees* x x (general)
discussion)
Supervisors* x x x
Employees at
identified
positions x x x (job
specific)
Employees
complaining
of CTD related
symptoms x x
Medical Personnel* x x
* New employees, supervisors, and medical personnel shall be
provided training as part of orientation. Training shall be updated with
changes in the state of technology and as each control measure is implemented
(both engineering and administrative) as deemed appropriate by the Company
based on recommendations of the consultant(s). Any video training aids
developed under the training program shall be provided to OSHA.
VII. Medical Management Program:
A. Scope of the Program. Each facility covered by this Agreement shall by one hundred twenty (120) days after execution of this agreement implement a program to aid in early detection, treatment, and follow-up of CTD. Each program shall include provisions for prompt evaluation of employee symptoms. 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. This time shall include time off work, or transfer to another job which poses a lesser risk of such injuries. When injured employees require time off work, upon returning to work they shall, when directed by the authorized treating physician(s) or by the medical department, be permitted to recondition the injured muscle/tendon group by gradual resumption of duties over a reasonable period of time. This shall occur 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 Company and who will be trained by the Medical Consultant. If the employee chooses his or her own physician in accordance with applicable state laws, the Company will give the employee the protocol referenced in Paragraph B.2 below (or, if revised, the revised protocol) and instruct the employee to give the protocol to his or her chosen physician. The Company cannot designate physicians or control their treatment under certain applicable state laws. It is not the intent of this agreement to resolve disputes between treating physicians.
B. Elements of the Program. The medical program shall include the following:
1. All production employees will be surveyed to establish a baseline for measurement of frequency of symptoms in the upper extremities. A Worker Involvement Survey developed by the Company and its consultant(s) will be administered by the first aid staff to all such employees. The survey will be designed to aid the consultant's (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 CTD. The survey will be drafted within thirty (30) 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(s) as to content.
2. A medical management protocol for CTDs will be developed and implemented at each facility covered by this agreement. All nurses will be trained to use this protocol which will include the following:
a) Standardized physical examination including inspection, palpation and appropriate range of motion other testing upon presentation of symptoms related to CTD.
b) 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 bending of the splinted limb is required on the job.
c) Reevaluation of an employee complaining of CTD shall be conducted in three working [working days refers to the employee's schedule] 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 light/alternate duty or job reassignment. If the condition is unchanged, a further evaluation shall be conducted within three working days or as soon thereafter as possible.
d) Conservative methods of treatment will be given first priority. All recommendations for surgery for CTDs will be referred for a second opinion, where permitted by applicable state law.
C. Light Duty/Alternate Duty Jobs. Within twelve (12) months after execution of this agreement light/alternate duty jobs as designated by the company at each covered facility 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. 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 to assure that a worker is assigned a job that will not further aggravate involved muscle/tendon/nerve groups. OSHA and the Union, where applicable, will be provided with the written analysis.
D. Nondiscrimination. No employees shall be discriminated against because they reasonably request and visit the medical facilities or because they have diagnosed CTD problems and are undergoing medical rehabilitation.
E. When an employee in a job not previously evaluated by the consultant reports a confirmed CTD to medical, the Company shall evaluate that employee's actual performance of the job to determine if ergonomic risk factors exist and corrective action is necessary.
The parties agree that an analysis of present CTD conditions may be helpful to measure progress in this effort to reduce the incidence of CTD. Accordingly,
(1) Within three (3) months after execution of this agreement, the Company shall, for each covered facility, provide to the Kansas City Area Office of OSHA a listing of work-related CTD illnesses from calendar year 1991. This listing shall include the facility at which each employee worked prior to diagnosis, the job being performed by the employee at the time of diagnosis, the length of time the employee worked at the facility and the type of CTD reported by the employee. The purpose of this report will be to apprise the parties, as best as possible from available information e.g., OSHA 200 logs, OSHA form 101, or its equivalent of the facilities and positions within facilities having the prevalence of CTD injury potential.
A. The parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTDs. The contact persons for initiation of such meetings shall be the Vice President/Personnel and Administration for the Company, or his designee, and the Director, Office of Field Programs.
B. Within thirty (30) days after execution of this agreement, the Company shall provide OSHA with the name of the Management Representative at each facility covered by this agreement, each of whom shall meet with the appropriate OSHA Area Director within sixty (60) days thereafter to discuss activities under this agreement.
C. For any facility whose employees are represented by a Union, the Union will be apprised by OSHA of the meeting, so they may attend.
A. OSHA Access. The Company agrees to allow OSHA access to all of its facilities listed in Appendix A and appropriate documents to determine progress and compliance with this Agreement and to conduct compliance inspections under the Occupational Safety and Health Act. OSHA agrees that, assuming implementation of the agreement by the Company, it shall not conduct any general scheduled inspections as to recordkeeping or ergonomic issues covered by this Agreement at covered facilities.
B. Monitoring Inspections. OSHA may conduct monitoring inspections as to recordkeeping and/or ergonomic issues in order to ascertain the Company'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 facility'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. If, during the course of any monitoring inspection of a covered facility, OSHA observes or detects a condition that is not reasonably addressed pursuant to this Agreement, OSHA shall notify the designated Management Representative identified pursuant to paragraph IX.B above prior to the completion of the inspection.
OSHA retains the right to issue ergonomic related citations to any facility in the event the Company is determined by OSHA not to be implementing this agreement in good faith.
Quarterly reports shall be submitted to the OSHA area offices having jurisdiction over each of the facilities covered by this agreement. Where such facilities are located in states with approved OSHA plans, reports shall be submitted to the appropriate state office if requested by the State plan. The reports shall describe the activities under this program during the previous period, including the numbers of employees receiving training, the number of employees treated for CTD, the extent of such treatment, the utilization of rest pauses and other programs, job rotation, identification and control of ergonomic stressors, any pilot projects conducted, or other relevant information.
The Company shall describe CTD controls implemented and shall, if it determines that controls identified in this agreement or recommended by the consultant(s) are not to be implemented at any prescribed locations, provide OSHA with the basis, for such determinations made by the Company, that such controls recommended by the consultant are unnecessary or inappropriate.
The reporting requirements under this Agreement may be terminated if OSHA determines that the problem has been reduced to a point where such reports are no longer useful or necessary at any or all locations.
Reports required under this agreement shall be made available to appropriate employee collective bargaining unit representatives or, where no such unit exists, to safety committees. However, the Company shall not be required to disclose any confidential or proprietary information or material absent execution of a Confidential Agreement by the party seeking such information.
The Company, with advice and guidance from the Consultant, has attempted to develop in this Agreement a program the goal of which is to significantly reduce or eliminate CTDs from its places of business. The Company has agreed to implement engineering and administrative controls which, after evaluating and testing, it and its Consultant agree are feasible. If the Company 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 Company's determination, it will state its points of disagreement, and the reasons it disagrees in writing so that the Company can review them with the Consultant. OSHA and the Company 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.
The Company 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 Company 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 Company's request. If OSHA should object to the request, it will notify the Company as soon as possible and the Petition For Modification of Abatement (PMA) procedures at 29 C.F.R. ?1903.14(a) will apply.
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 Company shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or business confidential material.
The Company will within six (6) months of the execution of this Agreement by all parties hereto implement at the Facilities a program to examine relevant records in its possession of all employees to ensure that the required records are 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 Stated Department of Labor, Bureau of Labor Statistics in April, 1986 (the "1986 BLS Guidelines"). This review shall include: 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 Company agrees to hereafter maintain at the covered Facilities 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.
Within six (6) months of the execution of this Agreement by all parties hereto the Company shall conduct training in OSHA injury and illness recordkeeping requirements for those of its employees having responsibility for recordkeeping at the Facilities. The training program will be conducted by individuals knowledgeable in the recordkeeping requirements. The training program will cover 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, the 1986 BLS Guidelines, as they may from time to time be amended, as well as the provisions of this Agreement. Thereafter, newly-appointed recordkeepers shall be given similar training.
The Company will implement the following procedures at the Facilities. Pending an investigation and final determination, if a case otherwise meets the requirements for recording, the Company shall record injuries and illnesses which (1) involve filed workers' compensation claims, (2) involve sickness or accident claims for which occupational causation is claimed, or (3) involve medical restrictions or job transfers.
If a case is removed from the log as a result of the investigation, the Company will maintain a record of the reasons for removal and make it available to the appropriate OSHA Area Director.
Within seven (7) months of the execution of this Agreement by all parties hereto the Company shall provide OSHA-OFP with a report certifying that the actions required herein this Part XV have been implemented. The report will outline all programmatic changes made by the Company to implement this Part XV and it will include all written and other materials for training, instruction, or guidance disseminated by the Company or its agents to plant recordkeepers and safety personnel.
Subject to the provisions of Paragraph XIII, 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 Company or OSHA gives the other party sixty (60) days notice that the agreement is cancelled.
Wherefore, the Secretary of Labor and ConAgra Poultry Company agree that under the above noted conditions this matter before the Commission as Docket Nos. 89-2138, 89-2139, and 89-2140 are hereby settled.
FOR COMPLAINANT: FOR RESPONDENT:
_______________________
ROBERT P. DAVIS G. T. BAUMGARDNER
Solicitor of Labor Vice President
ConAgra Poultry Company
TEDRICK A. HOUSH, JR.
Regional Solicitor
___________________________ __________________________
ROBERT S. BASS ROGER J. MILLER
Attorney Counsel for Respondent
McGrath, North, Mullin
& Kratz, P.C.
Suite 1100
One Central Park Plaza
Omaha, NE 68102
___________________________
KENNETH A. HELLMAN
Senior Trial Attorney
___________________________
PATRICK D. GILFILLAN
Trial Attorney
____________________________
ALAN MCMILLAN
Deputy Assistant Secretary for
Occupational Safety and Health
U. S. Department of Labor
Office of the Solicitor
911 Walnut Street, Room 2106
Kansas City, MO 64016
XVIII. Intervenor Signature
Certain employees of the following plants are represented by
Intervenor for purposes of collective bargaining:
El Dorado, Arkansas
Natchitoches, Louisiana
Arcadia, Louisiana
Athens, Alabama
Shreveport, Louisiana
Water Valley, Mississippi
Glascow, Kentucky
Monroe, Georgia
Talmo, Georgia
Turlock, California
Carthage, Missouri
Longmont, Colorado
Detroit Lakes, Minnesota
FOR INTERVENOR:
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION
___________________________
DEBRA K. BERKOWITZ
APPENDIX A
CONAGRA BROILER COMPANY FOWL PROCESSING PLANTS
PROCESSING PLANTS
LOCATION LOCATION
El Dorado, Arkansas Water Valley, Mississippi
Gainesville, Georgia Nixon, Texas
Natchitoches, Louisiana Glascow, Kentucky *
Milford, Delaware Monroe, Georgia
Dalton, Georgia Talmo, Georgia
Arcadia, Louisiana
Athens, Alabama
Enterprise, Alabama
Farmerville, Louisiana
Shreveport, Louisiana
CONAGRA TURKEY COMPANY PROCESSING PLANTS
LOCATION
Turlock, California * Wallace, North Carolina *
Carthage, Missouri Huntsville, Arkansas
Longmont, Colorado Detroit Lakes, Minnesota *
*STATE PLAN