___________________________________
LYNN MARTIN, SECRETARY OF LABOR, )
)
Complainant, )
) OSHRC Docket
v. ) No. 90-393
)
)
DELTA CATFISH PROCESSORS, INC., )
(now known as DELTA PRIDE )
CATFISH, INC.,) )
)
Respondent, )
)
and )
)
UNITED FOOD AND COMMERCIAL WORKERS )
UNION LOCAL 1529, )
)
Union Electing )
Party Status. )
___________________________________)
COMES NOW, the Complainant, Lynn Martin, Secretary of Labor, United States Department of Labor, the Respondent, Delta Catfish Processors, Inc. (now known as Delta Pride Catfish, Inc.), and the United Food and Commercial Workers Union Local 1529, Union Electing Party Status, through their respective undersigned counsel, and submit the following Settlement Agreement pursuant to Rule 2200.100 of the Rules of Procedure of the Occupational Safety & Health Review Commission (the "Commission"):
This Settlement Agreement specifies the complete terms of settlement as set out more fully below for each contested item and disposes of all issues in the case and covers and concerns all of the Respondent's processing, packaging, and warehousing facilities listed in Addendum A, including the Indianola, Mississippi processing plant, the Inverness, Mississippi plant (Delta South), the Belzoni, Mississippi processing plant, and the Sunflower, Mississippi plant/warehouse.
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., (the "Act").
(a) The Respondent is an agricultural cooperative organized under the laws of the State of Mississippi with its principal office and place of business in Indianola, Mississippi. It also operates the facilities mentioned in Article I above. It has been, at all times material to this proceeding, engaged in the business of processing, selling, and distributing catfish. During the course of its business, its employees perform various tasks in the nature of catfish processing. Also during the course of its business, the Respondent uses material and equipment which it receives from places located outside the State of Mississippi. The Respondent, as a result of these activities, is an employer engaged in a business affecting commerce as defined in Sections 3(3) and (5) of the Act, 29 U.S.C. section 652(3) and (5), has employees as defined in Section 3(6) of the Act, and is subject to the requirements of the Act.
(b) As a result of an inspection conducted from June 20, 1989, through December 19, 1989, at the Respondent's workplace in Indianola, Mississippi, three citations alleging various violations of the Act were issued to the Respondent on December 19, 1989, pursuant to Sections 8 and 9 of the Act. The first citation alleged serious violations of excessive carbon monoxide exposure under Section 5(a)(2) of the Act. and 29 C.F.R. 1910.1000(a)(2); the second citation alleged willful violations of OSHA's recordkeeping requirements, Section 5(a)(2) of the Act and 29 C.F.R. 1904.2(a), and Section 5(a)(1) of the Act for exposing employees to cumulative trauma disorders, improper medical management, and an absence of an effective ergonomics program; and the third citation alleged "other" violations of OSHA's hearing conservation standard, 29 C.F.R. 1910.95(c) and of OSHA's written hazard communication standard, 29 C.F.R. 1910.1200 et seq.
(c) The Respondent disagreed with the first and second citations and notification of proposed penalties and filed a timely notice of contest, which was duly transmitted to the Commission. Citation No. 03 was not contested and is not at issue in this matter.
(d) The authorized employee representative, United Food and Commercial Workers, Local 1529, elected party status in this proceeding.
(a) The Complainant agrees to amend the Citations as follows:
(1) The total proposed penalty for Citation Numbers 01 and 02, issued December 19, 1989, is amended to provide a total penalty of $12,000.00;
(2) The violations set forth in Citation Number 02 are reclassified as violations of "Section 17 of the Act";
(3) Citation Number 02, Item 3, is amended to delete subparagraph 4 of the list of abatement methods.
(b) The Respondent agrees to withdraw its Notice of Contest to all the Citations and the penalties, as amended, in Paragraph IV(a) above. The Respondent shall submit payment of the total amended penalty to OSHA within fourteen (14) days after this Agreement becomes a final order of the Commission.
(c) The Parties agree that this stipulation and settlement agreement, including the attached Ergonomic Agreement (Appendix "A"), shall become a final order of the Commission. Included with this agreement is a draft order approving this stipulation and settlement. The Parties consent to entry of the draft order as the final order so that the litigation of these matters may be brought to an end.
The Respondent agrees to abate the conditions noted in Citation Nos. 01 and 02 as follows:
(a) With regard to employee exposure to carbon monoxide cited in Citation No. 01, the Respondent shall eliminate the use of liquified petroleum vehicles in its cooler areas of the plant at all of its facilities and replace such vehicles with electric powered vehicles. This should be completed within fourteen (14) days after this agreement becomes a final order of the Commission.
(b) The Respondent agrees to correct the recordkeeping violations cited in Citation No. 02, Item 1, at all its facilities. The Respondent agrees to add the cited occupational injuries and illnesses in its OSHA 200 log. The Respondent shall also insure that its records, going back to January 1, 1986, are in compliance with the Act, the regulations at 29 C.F.R., Part 1904, the OSHA 200 log and its instructions, and the revised BLS Recordkeeping Guidelines for Occupational Injuries and Illnesses, effective April 1986. The Complainant agrees that during this review period and for any item placed appropriately in the OSHA Form 200 log in compliance with this paragraph either during or prior to this review, the Respondent will not be cited for allegedly failing to comply with the Act's Recordkeeping Requirements.
(c) The Respondent agrees to maintain its injury and illness records at all its facilities in accordance with the Act, the regulations at 29 C.F.R., Part 1904, the OSHA 200 Log and its instructions, and revised BLS Recordkeeping Guidelines for Occupational Injuries and Illnesses, effective April 1986, and as they may, from time to time, be revised.
(d) The Respondent agrees that the actions noted in Paragraph V (b) and (c) will be entirely accomplished within fourteen (14) days after this agreement becomes a final order of the Commission.
(e) With regard to the allegations in Citation Number 02, Items 2-4, the Respondent agrees to implement the attached Delta Pride Catfish Ergonomic Agreement (Appendix A), which is specifically incorporated in its totality into this stipulation and settlement agreement.
The Complainant and the Respondent agree that none of the foregoing agreements, statements, stipulations, and actions taken by the Respondent should be deemed an admission by the Respondent of the allegations contained within the Citations, Notifications of Penalties or the Complaint. This Settlement Agreement, statements, stipulations, findings, and actions are made solely for the purpose of settling this matter economically and amicably, and the Complainant and the Respondent agree that neither this Settlement Agreement nor any other admission made by the Respondent concerning this matter will be admissible in any other court or administrative proceedings, whether state or federal, or for any other purpose except for proceedings in matters arising under the Occupational Safety and Health Act. It is understood and agreed that this Settlement Agreement will constitute a final order of the Commission for purposes of the Act.
In accordance with Rules 7 and 100 of the Rules of Procedure of the Commission, the Respondent will give this Settlement Agreement to affected employees represented by an authorized employee representative by serving a copy of it on said representative at the Indianola, Mississippi facility and at each facility covered by this Agreement. In accordance with Rule 7 and 100 of the Rules of Procedure of the Commission, the Respondent will give this Settlement Agreement to affected employees not represented by an authorized employee representative by posting it in a place where citations are required to be posted at each such facility.
(a) The Parties agree that, based on the foregoing, the Order may be issued on record showing that the Respondent has withdrawn its Notice of Contest and entering the Citations as amended, notifications of proposed penalties as amended, and the attached Ergonomic Agreement as a final Order of the Commission.
(b) Each Party agrees to bear its own fees, costs, and expenses (including attorney's fees) arising out of and incidental to any stage of this proceeding.
WHEREFORE, the Secretary of Labor and Delta Pride Catfish, Inc., agree that under the above-noted conditions, this matter before the Commission as Docket No. 90-393 is settled.
I. General Recognition Language
A. For purposes of establishing that cumulative trauma disorders exist in the catfish packing and processing industry, Delta Pride Catfish, Inc., and its successors (hereinafter referred to as "respondent" or "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 occupational illnesses which exist in the catfish packing and processing industries, and other industries with similar jobs. 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 CTD stressors [e.g., force, position, repetition, and lifting]; employee and supervisor training and education; a medical management program aimed at the early detection and treatment of CTDs; early and proper medical diagnosis, treatment and care followup; and administrative controls.
B. The term CTD shall include the following conditions:
Cumulative trauma disorders (CTD) 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, tenosynovitis, synovitis, carpal tunnel syndrome, stenosing tenosynovitis of the fingers (trigger finger), epicondylitis, and low back strain.
II. Covered Facilities
This agreement covers the Company and its various processing facilities (hereinafter the "plants"), as listed in Addendum A to this Agreement.
III. Ergonomics Program
Elements of the Program
A. The Consultants
1. The Company agrees to retain a qualified consultant[s] who will be responsible for performing an ergonomic review of production, maintenance and warehouse jobs (hereinafter referred to as "jobs" or "production jobs"), assisting in evaluating and testing OSHA's proposed abatement methods, recommending proposed abatement methods for the non-cited jobs and additional methods for the cited jobs, if necessary, aiding in auditing and otherwise assisting the Company in the implementation of this Ergonomic Agreement. 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 (hereinafter "the Consultant"). The Company represents that it has retained such a consultant(s) at present and will continue to retain the consultant(s) or a consultant with qualifications meeting the above criteria for the life of the Agreement in a sufficient number to satisfy the terms of this Agreement.
The OSHA Area Office and the employee representative shall be notified of the names of each Consultant retained and provided with a copy of the Consultant's curriculum vitae.
2. The consultant shall conduct an ergonomic review of the processes which pose a hazard of CTD where required below. This review shall include: (1) evaluation of processes with regard to existing and new work positions, practices, tools, gloves and equipment to identify potential stressors (repetition, force, posture and lifting); (2) identification of feasible control strategies which will eliminate or significantly reduce these stressors; and (3) identification of light or alternate duty jobs for purposes of medical management of employees.
The review shall consist of an evaluation of the OSHA recommended abatement methods, the OSHA 200 logs, 101 forms, medical records and other documentation (e.g., the written evaluation form described in section VI) and on-site review by the Consultant. The Company represents that this review has been completed.
B. Identification of Stressors and Control Methods
1. OSHA-cited jobs: The Company shall give priority to evaluation of the jobs OSHA cited as presenting CTD hazards and for these jobs, shall give priority to evaluation and testing of the OSHA recommendations for abatement which are identified in the citations. With the assistance of the Consultant, the Company shall conduct an ergonomic review of the OSHA-cited jobs, evaluate the OSHA-recommended abatement methods and identify all those determined to be feasible. The Company, with the assistance of the Consultant, shall test identified control methods, if necessary, and implement feasible control methods to significantly reduce or eliminate ergonomic stressors that have caused or are likely to cause CTD. If OSHA's recommendations prove to be insufficient to significantly reduce or eliminate the ergonomic stressors that have caused or are likely to cause CTD, the Company, with the assistance of the Consultant, shall identify additional engineering and administrative control solutions. Identification and testing of control methods shall be completed within six months of execution of this Agreement. Controls shall be implemented in accordance with sections C and D below.
2. Non OSHA-cited jobs: For all other production jobs in all of the facilities covered by this agreement, an on-site ergonomic review, as defined above, of the processes which are causing or likely to cause a hazard of CTD shall be conducted by the consultant in order to identify engineering and administrative control solutions. The review will be completed within 120 days from the date of execution of the Agreement. The consultant shall also obtain and consider input from employees and safety and health committees (including union safety and health committees).
With the assistance of the consultant, the Company shall evaluate the identified control methods and identify all those determined to be feasible. The Company, with the assistance of the Consultant, shall test identified control methods, if necessary, and shall implement those feasible controls to significantly reduce or eliminate the ergonomic stressors that have caused or are likely to cause CTD. Identification and testing of control methods shall be completed within 9 months of execution of this Agreement. Controls shall be implemented in accordance with sections C and D below.
C. Implementation of Engineering and Administrative Controls
The Company shall implement the following measures in all covered facilities at positions causing or likely to cause a CTD hazard:
(1) Engineering Controls. The Company shall evaluate, test and implement all feasible engineering controls. Such controls shall include, but not be limited to, the following:
(i) Reduction of extreme postures shall be achieved through such means as re-orienting the knife, tool handle or fish or fish product, providing adjustable fixtures and rotating cutting tables so that the position of the fish or product can be easily manipulated, or by providing work stations and delivery bins that accommodate the height and reach limitations of various sized workers;
(ii) Reduction of excessive force shall be achieved by such means as automating aspects of the process, use of mechanical devices which aid in separating the fish from bones or skin, use of power tools, maintaining sharp cutting edges on knives, and implementation of adjustable fixtures which allow cuts and movements to be made in mechanically advantageous postures (e.g. close to the body).
(2) Administrative Controls. When engineering controls are determined to be insufficient to significantly reduce or eliminate ergonomic stressors related to CTD, administrative controls, including the reduction of the amount of repetitive motion work per employee per shift, shall be evaluated and tested and, if feasible, implemented.
(i) The principles of job rotation and job enlargement (e.g. varying employees' tasks) and rest pauses may be utilized to alleviate physical fatigue and stress of a particular set of muscles/tendons/nerve groups. Caution shall be used in deciding which jobs are used because different jobs may appear to have different stressors, but actually pose the same physical demands as the employee's present job. Prior to rotating employees, 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 are not made of rotated employees. All new or reassigned employees within the job rotation shall receive on-the-job training on any job which has an identified CTD risk factor.
A copy of the planned rotation shall be made available to the OSHA Area Office and the employee representative. Employees to be rotated shall be trained prior to rotation so that they are proficient in the proper manner to accomplish work tasks. The consultant shall monitor rotated employees to determine whether the rotation is causing an increase in CTD symptoms.
(ii) In those jobs causing or likely to present a CTD hazard, new or reassigned employees shall be given sufficient opportunity to condition their muscle/tendon/nerve groups as well as being provided with on-the-job training. This may be accomplished by a gradual assumption of duties, adjusted work pace, the use of a trainer or varying tasks performed by the employee until such time as he/she has had sufficient training time to achieve a full rate of production.
D. Time for Implementation of Control Measures
1. The Company agrees to implement feasible engineering controls as soon as possible after they are identified. For the OSHA cited jobs, all feasible engineering controls shall be implemented no later than 12 months of the date of execution of this agreement. For all other production jobs at the covered facilities, all feasible engineering controls shall be implemented no later than 18 months of the date of execution of the Agreement.
2. The Company agrees to implement all feasible administrative controls in accordance with section C. For the OSHA cited jobs, all feasible administrative controls shall be implemented no later than 15 months of the date of execution of this Agreement. For all other production jobs at the covered facilities feasible administrative controls shall be implemented no later than 18 months of the date of execution of this Agreement.
E. Employee Input
Input from the employees on the jobs being studied or evaluated, and input from the employee representative safety committee shall be sought and considered in formulating, testing and evaluating potential controls. Input from such resources shall also be sought and considered in the design and implementation of the orientation, training and education program.
IV. Orientation, Education and Training Program:
A. Development of the Program
1. The Company, with input from the consultant and the employee representative, will develop and implement at each of the plants covered by this agreement a formal orientation, education, and training program. The program shall consist of video training aids, quarterly training sessions as part of regularly scheduled safety meetings and specific training for jobs identified as causing or likely to cause CTDs. Copies of the training program shall be sent to the OSHA Area Office in Jackson, Mississippi, and any video aids will be made available to the OSHA Area Office and to the employee representative for viewing upon request. The training components shall be presented, as set forth below, to all production employees, supervisors, and medical personnel.
B. Training and Education Components.
1. General - A presentation, of at least 1 hour with time for questions and answers, designed or designated by the Company and/or Consultant shall be developed and completed within 90 days of execution of the agreement. The presentation shall include training on the medical aspects of CTDs; the importance of early reporting and treatment, movements and positions which may cause or aggravate the condition, and activities which may alleviate the problem. The presentation shall be provided within 60 days after its completion and annually thereafter. Special emphasis will be placed on the recognition of the early symptoms of such disorders.
This training shall be provided to all current production employees. New production personnel shall receive this general training during their orientation.
2. Supervisory employees - 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 CTD within their respective area of responsibility. All supervisors shall be given this component within six months after identification of the position as one causing or likely to cause CTD, 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.
3. Job Specific - For positions identified as causing or likely to cause CTD, training shall be provided concerning methods of controlling CTD stressors including force, repetition, position, and lifting. 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 the need for proper knife steeling. This training will involve those operating the knife sharpening equipment. All production employees shall be given this training within six months of execution of this agreement. Refresher training shall be conducted every 180 days thereafter.
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.
4. Quarterly training on CTDs shall be included at least once every three months as part of regularly scheduled safety meetings for the employees. This training shall be more specific for those jobs which may present a CTD hazard. This training shall be initiated at each plant three months after initiation of the training noted in subsection 3 above.
5. Medical - All Medical staff employees of the Company shall receive training which shall include a detailed review of the medical aspects of CTD; how to perform medical evaluations required by this Agreement; treatment protocols, the proper use of diagnostic instruments, if any; 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 CTD, the stressors involved, and the availability of appropriate light duty jobs. All medical personnel, including nurses, shall be given this component within 90 days of execution of this agreement and, annually thereafter. Medical Training may be provided by a physician or physicians designated by the Company. The Company may supplement such training with video training aids for the training of medical personnel.
V. Medical Management Program:
A. Elements of the Program
1. Each facility covered by this Agreement shall by 90 days after execution of this agreement implement a program to aid in early detection, treatment, and follow-up of employees with CTDs. Each program shall include provisions for prompt evaluation of employee symptoms. When directed by a Company designated 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 a Company designated physician(s) or by the medical department, be permitted to recondition the injured muscle/tendon/nerve group by gradual resumption of duties. This shall occur in addition to any other prescribed treatments.
2. Within 30 days of the consultant's completion of the ergonomic review conducted under paragraph A.2., the consultant's analysis of light and alternate duty jobs shall be reduced to written form and provided to nurses, doctors and supervisory personnel involved in the assignment of light or alternate duty jobs to assure that a worker is assigned a job that will not further exacerbate involved muscle/tendon/nerve groups. This analysis shall include the procedures used in the performance of each job, including lifting requirements, postures, hand grips, and frequency of repetitive motion. The OSHA Area Office and the employee representative will be provided with the written analysis.
3. No employee shall be discriminated against because he/she reasonably requests and visits the medical facilities or because he/she has a diagnosed CTD and is undergoing medical rehabilitation. The Company shall do nothing to create potential disincentives to early reporting of CTD-related conditions.
4. Within 90 days of execution of the agreement, a medical management protocol for CTDs will be developed and implemented at each facility covered by this agreement. A copy of the medical management protocol shall be sent to OSHA-Office of Field Programs (OFP) and to the employee representative. All nurses will be trained to use this protocol which will include the following:
a. Standardized physical examination, including inspection, palpation and range of motion testing, upon presentation of symptoms related to CTDs.
b. Specified protocols for the treatment of employees with positive physical signs of CTD on examination as well as those employees presenting symptoms but no physical signs.
c. Reevaluation of an employee complaining of CTD shall be conducted in three working days. If the condition worsens, further medical management shall be undertaken, along with concurrent efforts to reduce the physical stresses of the job by such measures as job modification, work practice changes, and administrative changes. If the condition is unchanged, a further evaluation shall be scheduled in three working days.
d. All recommendations for surgery for CTDs will be referred for a second opinion, where permitted by applicable state law.
5. 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.
VI. 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:
A. Within 90 days of execution of this agreement, the Company shall, for each covered facility, provide to OSHA a listing of work-related CTD illnesses from calendar years 1990, and 1991, together with the job location of each listed incident. The listing shall include the location(s) at which each employee worked, the length of time the employee worked at each location, and the type of CTD and treatments provided. The purpose of this report will be to apprise the parties, as best as possible, of the facilities and the positions within facilities having the prevalence of CTD injury potential.
B. OSHA shall at its discretion conduct baseline monitoring walkthroughs at covered facilities. The purpose of these walkthroughs is to form a baseline determination of presently prevailing conditions regarding CTD potentials.
C. The Company, with the assistance of the consultant, will develop a written evaluation form that is designed to elicit from employees the existence and frequency of symptoms in the upper extremities. This form may be administered as part of an overall survey of employees concerning the work environment. The Company agrees to administer the form in a manner so as to maximize employee responsiveness. The form will be administered to all production employees within 60 days of execution of this agreement, with instructions for completion and return of the form within 21 days thereafter. The Company will tabulate the results by job category at each facility, and provide the results to the OSHA Area Office in Jackson and to the employee representative within 110 days of execution of the agreement. The form will be administered, tabulated and distributed in the same manner on an annual basis thereafter.
VII. Periodic Program Meetings
The parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTDs. Within 30 days after execution of this agreement, the Company shall provide the OSHA Area Director and the employee representative with the name of the Management Representative at each facility covered by this agreement and the employee representative shall provide the Area Director and the Company with the name of the appropriate local representative at each facility covered by this Agreement. These representatives shall meet with the OSHA Area Director within 90 days after execution of this Agreement to discuss activities under this Agreement. Thereafter, these representatives shall meet once every six months during the term of this Agreement. Acting OSHA Area Director Eugene Stewart or his designee will be the contact person for purposes of this paragraph.
VIII. Entry Onto Company Facilities
The Company agrees to allow OSHA access to those facilities listed in Addendum A and to appropriate documents in order to conduct baseline and monitoring inspections to determine progress and compliance with this Agreement and to conduct all other types of inspections under the Occupational Safety and Health Act. OSHA agrees that, assuming continued implementation of this Agreement by the Company, it shall not conduct any general schedule inspections as to ergonomic issues covered by this Agreement at covered facilities.
If, during the course of any inspection conducted during the life of this agreement, the Secretary detects a situation or condition related to the coverage of this agreement which would ordinarily result in citation, the Secretary 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.
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.
IX. Ergonomics Audit
A. Audit
The company shall establish an ergonomics process audit to ensure the effectiveness of its ergonomics program at all plants covered by this agreement. The audit will include a review of the implemented controls. The ergonomics audit is to be conducted with and made an integral part of the company's ergonomics program. The audit will be conducted at a minimum on an annual basis and shall commence on January 1, 1992.
B. Audit Findings and Recommendations
Audit findings and recommendations, together with management responses, will be provided to the OSHA area office and to the employee representative.
X. Reports
Quarterly reports for each of the covered facilities shall be submitted to the OSHA area office in Jackson, Mississippi. 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 stressors, any pilot projects conducted, or other relevant information. A copy of any planned rotation program and any significant changes to the rotation program shall be sent to the OSHA Area Office and to the employee representative prior to implementation.
The Company's quarterly report also shall describe CTD controls implemented and shall, if it determines that controls identified in this agreement or recommended by the Consultant are not to be implemented at any prescribed locations, provide OSHA with the basis for such determinations. OSHA specifically reserves the right to disagree with any determinations made by the Company that such controls are unnecessary or inappropriate.
The reporting requirements under this Agreement may be terminated if the Area Director determines that such reports are no longer useful or necessary at any or all locations.
Reports required under this agreement shall be sent to appropriate employee collective-bargaining unit representatives or, where no such unit exists, to safety committees.
XI. Dispute Resolution
If the Company determines, with the advice and guidance of the Consultant, that a particular abatement recommendation of OSHA's or of the consultant is not feasible, it will so notify the OSHA Area Office and the employee representative. If the OSHA Area Office agrees, it will so notify the company in writing within 30 days. If the OSHA Area Office disagrees with the Company's determination, it will state its points of disagreement, and the reasons it disagrees in writing within 45 days so that the Company can review them with the Consultant. OSHA and the Company, with the participation of the employee representative being invited, will then engage in good faith discussions to resolve the disagreement. OSHA will then notify the Company and employee representative as to its final determination on which controls it deems are feasible and must, therefore, be implemented. The Secretary retains the right to use, as appropriate, enforcement methods provided for in the Act.
XII. Term of Agreement
This agreement shall be in effect for a period of 3 years from the date of execution. 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.
XIII. Extensions of Time
Requests for modification of abatement under this Agreement shall be controlled by 29.C.F.R. section 1903.14a, and any successor provision thereto.
XIV. Definitions
As used in this agreement, "employee representative" means the United Food and Commercial Workers, Local 1529 at those plants where it is the recognized collective bargaining agent. At other plants, "employee representative" shall mean employee safety committees. "Execution of this agreement" shall be deemed to occur on the date upon which the Agreement is signed. The plants covered by this agreement are those listed in Addendum A.
XV. 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. section 664), 18 U.S.C. section 1905, and 29 C.F.R. section 1903.9. The Company shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or business confidential material.
Addendum A
1. Indianola, Mississippi: Two locations
a. Main Plant
Indianola Industrial Park Road
Indianola, Mississippi 38751
b. Delta South Plant
Highway 49 West South
Indianola, Mississippi
2. Belzoni Plant
Highway 49 West South
Belzoni, Mississippi 38751
3. Sunflower Plant
East Reed Road
Sunflower, Mississippi 38778
___________________________________
LYNN MARTIN, SECRETARY OF LABOR, )
)
Complainant, )
)
v. ) OSHRC Docket
) No. 90-393
)
DELTA CATFISH PROCESSORS, INC., )
(now known as DELTA PRIDE )
CATFISH, INC.,) )
)
Respondent, )
)
and )
)
UNITED FOOD AND COMMERCIAL WORKERS )
UNION LOCAL 1529, )
)
Union Electing )
Party Status. )
___________________________________)
More than ten days having elapsed since service of the Stipulation and Settlement Agreement by posting at the workplace and by mailing a copy to the authorized employee representative and no objection to the time set for abatement having been filed by an employee or authorized employee representative, all matters encompassed within the Stipulation and Settlement Agreement entered into by the Secretary of Labor and Delta Pride Catfish, Inc., have become a final order of the Occupational Safety and Health Review Commission.