____________________________________
FORD MOTOR COMPANY and )
FORD ELECTRONICS AND )
REFRIGERATION CORPORATION, )
)
Petitioner, ) OSHRC Docket Nos.
v. ) 89-2314
) 92-2391P
) 92-1171P
ROBERT B. REICH, )
SECRETARY OF LABOR, )
)
Respondent. )
)
INTERNATIONAL UNION UNITED )
AUTOMOBILE WORKERS AND ITS )
LOCAL 1695 )
)
Authorized Employee )
Representative. )
____________________________________)
COMES NOW Ford Motor Company and Ford Electronics and Refrigeration Corporation ("Ford"), Petitioners herein, to hereby withdraw the Petitions for Modification of Abatement Dates filed in Docket Nos. 92-2391P and 92-1171P. The parties have reached agreement on all issues, thereby obviating the need for further proceedings before the Commission.
Respectfully submitted,
_______________________
Paul Coffey, Esq.
Assistant General Counsel
Ford Motor Company
I hereby certify that on this 10 day of August, 1993, I have caused a copy of the foregoing Notice of Withdrawal of Petitions for Modification of Abatement Dates to be served by facsimile and regular U.S. mail upon the following:
Mr. Frank Mirer
Director, Occupational Health
and Safety
United Automobile Workers
8731 East Jefferson
Detroit, MI 48214
_________________________
Paul Coffey, Esq.
Asst. General Counsel
Ford Motor Company
_____________________________________
FORD MOTOR COMPANY and )
FORD ELECTRONICS AND )
REFRIGERATION CORPORATION, )
)
Petitioner, )
) OSHRC Docket Nos.
v. ) 89-2314
) 92-2391P
ROBERT B. REICH, ) 92-1171P
SECRETARY OF LABOR, )
)
Respondent. )
)
INTERNATIONAL UNION UNITED )
AUTOMOBILE WORKERS AND ITS )
LOCAL 1695 )
)
Authorized Employee )
Representative. )
_____________________________________)
The Secretary of Labor, United States Department of Labor ("the Secretary") and Ford Motor Company and Ford Electronics and Refrigeration Corporation ("Ford") have reached a full and complete settlement of the issues pending before the Occupational Safety and Health Review Commission in the above-captioned matters. As set forth below, this Agreement addresses the specific issues raised by Petitioner Ford's Petitions for Modification of Abatement from the July, 1990 Landsdale settlement agreement (OSHRC Docket No. 89-2314) under OSHRC Docket Nos. 92-2391P and 93-1171P. This agreement also settles a proceeding pending in the United States Court of Appeals for the Third Circuit relating to the Secretary's Petition for Enforcement of the Order of the Occupational Safety and Health Review Commission approving the July, 1990 settlement. The parties agree as follows:
I. TWOS/OHS RECORDKEEPING SYSTEM: Ford agrees to continue implementation of Phase I of its Computerized TWOS/OHS recordkeeping system which integrates Ford's payroll and timekeeping system, the Company's automated medical record charting system, and OSHA injury and illness recordkeeping system. This system merges relevant information necessary to complete the automated OSHA Log and the corresponding information on the OSHA 101.
Ford also agrees to implement Phase II of the TWOS/OHS recordkeeping system designed to facilitate a detailed analysis of the occupational injury and illness data that is being collected by Phase I of the System.
II. REVIEW AND CORRECTION OF PAST OSHA RECORDKEEPING UNDER THE 1990 AGREEMENT:
A. Ford's present OSHA injury and illness records correction responsibility under the 1990 Agreement, at Article 2.6, which requires the Company to conduct a corporate-wide review and correction of its OSHA safety and health records from January 1, 1988, is modified to require such review and correction only beginning January 1, 1991 through December 31, 1992. The purpose of Ford's review, as detailed below, shall be to bring these records into compliance with the OSH Act, 29 CFR 1904, the OSHA 200 Log, and the 1986 Recordkeeping Guidelines. Recordable injury and illness cases which were not entered on the OSHA Form 200 shall be entered on the amended Form 200. Injury and illness cases which were entered onto the OSHA Form 200 in an erroneous manner shall, where possible (as determined by the availability of information necessary for correction of the case entry), be corrected on the amended OSHA 200 Log.
B. This review and correction process shall be initiated August 15, 1993 and shall be completed no later than February 14, 1995.
C. As each facility completes the review and correction process, it shall have thirty days after completion to notify the appropriate OSHA area office of the following: the name of the facility, the person(s) involved in the records review process, a SUMMARY of the number and type of corrections made for each year the review was conducted, and a copy of the amended OSHA 200 Logs with a designation reflecting those entries which were added or amended pursuant to the review.
III. AUDITS: Ford agrees to conduct audits to determine the accuracy of both the review and correction of past injury and illness records and the records which are presently being produced under Ford's recordkeeping system. These audits shall be conducted as follows:
A. AUDIT PROTOCOL FOR RECORDS CORRECTION VERIFICATION:
Ford shall select 12 facilities in the manner generally specified in paragraph 2.3 at page 6 of the OSHA/Lansdale Settlement Agreement for record verification audits as herein described. Records will be reviewed for relevant time periods, beginning with January 1 of the audit year and proceeding forward to the completion day of the audit unless otherwise specified as in the 1995 audit. The following procedure shall be used in conducting the audits:
1. Components of Records Verification Audit: During each facility records verification audit the auditor shall verify the accuracy of the OSHA 200 Log entries by reviewing randomly selected employee medical records, workers' compensation claims, as well as conducting employee interviews.
a. Selection: The medical records of 35 employees will be selected for the audit utilizing the random selection method used by the Company in performing the audits under the Settlement Agreement. Additionally, 35 workers' compensation claims related to events which occurred during the relevant time period shall be randomly selected for review.
b. Medical Records Review: The Corporate Medical Team conducting the audit will review the selected employees' medical records to determine if an event occurred during the relevant time period. If the employee's medical record indicates that no event has occurred, another employee's medical record will be selected and reviewed using the selection methodology employed in the random audits performed under the Settlement Agreement.
Each selected employee's medical records will be examined by the Corporate medical team to identify all visits to the medical department to determine if the visits are work related.
When a medical record meeting the above criteria has been identified, all visits relating to the events as described above shall be evaluated. If any event is OSHA "recordable" under the revised BLS Guidelines, the Corporate Medical Team will confirm that the event was recorded on the OSHA 200 Log. If the event is properly recorded, the event will "pass".
If an event meets the criteria for an OSHA "recordable" case under the revised BLS Guidelines and was not recorded, or was improperly recorded, the event will "fail".
This procedure will continue until all recordable events for the 35 selected employees have been reviewed and are entered on the auditor's OSHA 200 Log.
c. Workers' Compensation Claims Review: The Corporate Medical Team conducting the audit will review the randomly selected workers' compensation claims to determine if a medical record was initiated for the claim.
If the medical record for the workers' compensation claim being reviewed meets the criteria for an OSHA "recordable" case under the revised BLS Guidelines, the Corporate Medical Team will confirm that the event was properly recorded on the OSHA 200 Log. If the event is properly recorded, the event will "pass".
If the medical record for the workers' compensation claim being reviewed meets the criteria for an OSHA "recordable" case under the revised BLS Guidelines and was not recorded, or was improperly recorded, the event for that workers' compensation claim will "fail".
d. Employee Interviews: The Corporate Medical Team will interview 20 hourly employees, at each facility selected for an audit. Employees will be randomly selected utilizing the same selection process as that used to select the employees for the medical record audit above.
(1) The employees will be interviewed to determine if they reported work related injuries or illnesses to management or the medical department during the relevant time period.
(2) If the Corporate Medical Team determines that the injury or illness reported is recordable under the revised BLS Guidelines, the OSHA 200 Log of the facility will be reviewed to confirm that the event was properly recorded. If the event is properly recorded, the event will "pass" the audit.
(3) If the Corporate Medical Team determines that the injury or illness reported is not "recordable" under the revised BLS Guidelines, or no documentation is found to substantiate that such injury or illness was reported, the event will "pass" the audit.
(4) If the Corporate Medical Team determines that the injury or illness meets the criteria for an OSHA "recordable" event under the revised BLS guidelines, but was not recorded, or was improperly recorded, the event will "fail" the audit. In addition, the Corporate Medical Team will investigate the reason(s) for lack of OSHA recording and define corrective actions.
(5) If employee interviews at multiple facilities reveal a systematic cause for lack of recording, corrective actions will be implemented Company wide.
e. In all instances described above if errors in the OSHA 200 Log are identified during the audit process they shall be corrected.
2. Scope of Verification Audits:
In 1994, 12 facilities shall be audited for the accuracy of the OSHA 200 Log for the period of January 1, 1993 to the audit date.
In 1995, 12 facilities shall be audited for the accuracy of the OSHA 200 Log for the period of January 1, 1991 to December 31, 1992. In auditing the success of the records correction for calendar years 1991 and 1992, the following areas are subject to the audit review:
- verification that there is an entry on the log of recordable injury and illness events which were not previously recorded;
- corrected data in the following areas which may have been previously misrecorded:
a. injury vs illness classification b. completeness of diagnosis description c. accuracy of columns 7(a) - 7(g) d. appropriate checkmark in column(s) 2,3, or 9,10 and number of days in column 4 or 11 as reflected in the medical record for events previously recorded with checkmarks in columns 6 or 13.
During the 1995 audit to verify corrections to the 1991 and 1992 records, employee interviews will not be conducted.
Consultant - Ford agrees to engage the services of an independent consultant knowledgeable in OSHA injury and illness recordkeeping procedures to oversee and verify the above audits. Ford and the consultant shall agree on the scope of the consultant's responsibilities, which shall include, but not be limited to an independent determination of whether Ford has passed or failed the audits. The identity of the consultant and its responsibilities shall be produced in written form and submitted to OSHA's Office of Field Programs and the UAW prior to the initiation of the audits. OSHA may offer its comments and any proposed changes as to the identity and responsibilities of the consultant to Ford no later than twenty days after receipt by OSHA of the letter from Ford.
In 1996, the Company shall select 4 plants for audit during calendar year 1996 for the accuracy of the OSHA 200 Log for the two previous calendar years to the audit date. Ford agrees to conduct similar audits in subsequent years using the methodology in the previous audits modified to reflect current circumstances. Such audits shall not be considered for purpose of the facility failure and other penalties under this agreement.
3. Facility Failure:
Facility failure shall occur when more than 5% of the recordable events audited "failed" as described previously in Sections 1 and 2.
If a facility fails the audit the following shall occur:
(a) Facility medical staff responsible for recording shall be promptly retrained.
(b) Notice shall be given to the UAW National Ford Department and the local UAW Health and Safety Representative.
(c) A notice shall be posted in the facility for 30 calendar days that states:
"A recent audit of the accuracy of our medical records, when compared to the OSHA recordkeeping standards, disclosed that the facility failed for the following reasons listed below. Additional training of medical staff has been conducted to ensure accurate OSHA recordkeeping in the future, and medical records will continue to be subject to review by the Corporate Medical Team."
(d) Facility failures determined in the facility audits for 1993 and 1994 shall be subject to facility records correction by the facility medical staff.
4. Company Failure and Notification: Company failure shall occur when more than 5% of the recordable events for all facilities audited in both calendar years 1994 and 1995 combined have "failed" as described in Sections 1 and 2, or if the company fails to perform its audits in the established time periods.
B. NOTIFICATION OF AUDIT RESULTS: Ford shall notify OSHA's Office of Field Programs and the UAW of the results of the 1994 and 1995 audits no later than 45 days after each such year's corporate audit has been completed. At or within a reasonable time after final notification, the independent consultant shall submit a written opinion with a discussion of the underlying data of the results of the audits on the issue of whether Ford has passed or failed the audits.
IV. PENALTIES: The parties acknowledge that one result of the continued enforcement by the Secretary of the full terms of the 1990 Agreement under the present circumstances could be the imposition of substantial penalties for failure to comply with the Agreement. While not agreeing that the Secretary would be entitled to recover any penalties in continued enforcement, Ford agrees to the following settlement penalty structure based upon a total negotiated penalty of $1.5 million:
A. Ford agrees to pay a penalty of $750,000.00 to OSHA on or before September 15, 1993.
B. The remaining penalty of $750,000.00 shall be paid to OSHA if Ford fails the 1994 and 1995 audits combined as set forth herein. Such payment shall be the sole remedy for non-performance of any of Ford's obligations hereunder, except in the event that Ford does not perform in good faith the records program or audits for any of the years 1991 through 1994. Payment shall be made no later than one month after Ford notifies OSHA of the failure of the results of the 1994 and 1995 audits combined.
V. DISPOSITION OF PENDING LEGAL ACTIONS AND FUTURE ACTIONS:
A. Occupational Safety and Health Review Commission (Commission):
1. Ford agrees to withdraw the two actions pending before the Commission as OSHRC Docket Nos. 92-2391P and 92-1171P.
2. The parties agree that this supplemental settlement agreement and any attachments shall supplement the final order of the Commission resulting from the July, 1990 settlement agreement. Further the July, 1990 settlement agreement as supplemented and modified herein shall be deemed a final order of the Commission. The final order date shall be August 15, 1993.
3. Ford agrees that it will not seek further modification of its responsibilities under the 1990 and instant agreement through the petition for modification of abatement procedure, Fed. R. Civ. P. 60, or any other similar procedure.
B. U.S. Courts: Ford consents to an order enforcing the settlement agreement of 1990 as modified by the instant agreement. A copy of the consent order is attached hereto. The consent order shall be submitted to the court on or about August 16, 1993.
VI. NOTICE OF NONCOMPLIANCE: In the event the Secretary determines that Ford is not complying with the terms of the settlement agreement, the Secretary will provide written notice to Ford concerning the particulars of the alleged non-compliance with the agreement. Representatives of the Secretary, Ford, and the UAW will meet to resolve the dispute within two weeks of the date or the notice. This provision does not affect the right of the Secretary to take any appropriate enforcement action thereafter.
VII. Ford agrees to enter into discussions with OSHA to explore the possibility of OSHA's utilization of Ford's computerized recordkeeping system as the basis for the development of a generic recordkeeping program which could be placed in the public domain for use by employers nation-wide.
VIII. OSHA MONITORING INSPECTIONS: OSHA may conduct inspections at Ford's facilities to determine Ford's compliance with its responsibilities under this agreement.
IX. All provisions of the 1990 Agreement which are not directly affected by the terms of this supplemental agreement shall remain in full force and effect.
WHEREFORE, the parties agree that this supplemental agreement has become a final order of the Occupational Safety and Health Review Commission on August 15, 1993.
FOR FORD MOTOR COMPANY, FOR THE SECRETARY OF
FORD ELECTRONICS and LABOR, UNITED STATES
FORD REFRIGERATION: DEPARTMENT OF LABOR:
______________________ ________________________
JOHN H. TRIEBWASSER, M.D. DAVID C. ZEIGLER
Director, Occupational Health Acting Assistant Secretary
and Safety Occupational Safety and
Ford Motor Company Health Administration
______________________ THOMAS S. WILLIAMSON, JR.
PAUL COFFEY, ESQ. Solicitor of Labor
Assistant General Counsel
Ford Motor Company MARSHALL HARRIS
Regional Solicitor
Dated: August 10, 1993
_________________________
KENNETH A. HELLMAN
Senior Trial Attorney
JANICE L. HOLMES
FOR UNITED AUTOMOBILE Attorney
WORKERS:
Office of the Solicitor
Occupational Safety and
Health Division
______________________
FRANKLIN E. MIRER _________________________
Director Occupational Health MATTHEW RIEDER
and Safety OSHA Counsel, Region III
International Union, UAW Office of the Solicitor
Dated: 8/17/93 Dated: 8/10/93