___________________________________
ELIZABETH DOLE, SECRETARY OF LABOR,)
UNITED STATES DEPARTMENT OF LABOR )
)
Complainant, )
)
v. ) OSHRC Docket
) No. 89-130
)
HILLSHIRE FARM CO./ )
SARA LEE CORPORATION )
)
Respondent, )
)
INDEPENDENT EMPLOYEES UNION )
OF HILLSHIRE FARM CO., INC. )
)
Authorized Employee )
Representative.)
___________________________________)
Complainant and Respondent have reached a full settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. Complainant and Respondent hereby agree as follows:
a) The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq, hereinafter the "Act").
b) Respondent, Hillshire Farm Co./Sara Lee Corp. is a corporation with its principal place of business in New London, Wisconsin (Hillshire Farm Co.) and Chicago, Illinois (Sara Lee Corp.). It has been at all times material to this proceeding engaged in the business of meatprocessing. During the course of its business, its employees perform various tasks in the nature of meatprocessing. During the course of its business, respondent, at its New London, Wisconsin facility uses material and equipment which it receives from places located outside Wisconsin. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by Section 3(3) and 3(5) of the Act, and has employees as defined by Section 3(6) of the Act, and is subject to the requirements of the Act.
c) As a result of an inspection conducted on May 24 through November 10, 1988 at Respondent's workplace in New London, Wisconsin, citations alleging violations of the Act were issued to Respondent on November 23, 1988, pursuant to Sections 8 and 9 of the Act. The citations issued consist of four willful citations of Section 5(a)(1) of the Act for exposing employees to cumulative trauma disorder. A notification of proposed penalties in the amount of $10,000 per citation was also issued to respondent on November 23, 1988.
d) Respondent disagreed with the citations and notification of proposed penalties and filed a notice of contest. The contest was duly transmitted to the Commission. The authorized employee representative, Independent Employees Union of Hillshire Farm Co., Inc., has elected party status in this proceeding.
a) Complainant agrees to amend the notification of proposed penalties to reflect a penalty of $5,000 per citation.
b) Respondent agrees to withdraw its notice of contest to-all citations and the penalties as amended in section (a), above. Respondent shall submit payment of the total amended penalty of $20,000 to OSHA within thirty days after this agreement becomes a final order of the Commission.
Respondent agrees to abate the conditions noted in the citations as follows;
a) Implement, or evaluate and where feasible implement the recommendations included in the citations as part of its ergonomic review of conditions at the facility under subsection (b), below.
b) Implement the following SARA LEE CORPORATION, Meat Group Companies, Ergonomic Agreement, which is specifically incorporated in its totality into this Agreement.
In accordance with Rules 7 and 100 of the Rules of Procedure of the Commission, Respondent shall give this Settlement Agreement to affected employees represented by an authorized employee representative by serving a copy of it on said representative at the Hillshire Farm Co., New London, Wisconsin facility and at each facility covered by this agreement. In accordance with Rules 7 and 100 of the Rules of Procedure of the Commission, Respondent shall give this Settlement Agreement to affected employees, if any, 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 representations and on the terms of the SARA LEE CORPORATION, Meat Group Companies, Ergonomic Agreement incorporated herein, an order may be issued of record showing that the Respondent has withdrawn its notice of contest and entering the citations, notification of proposed penalty, as amended, and the aforesaid Ergonomic Agreement as a final order of the Commission.
b) Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of the proceeding.
I. General Recognition Language
The Sara Lee Corporation Meat Group Companies, and their 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 prevalent in the meat packing industry, meat processing industry, and other industries with similar jobs.
The Company and OSHA also recognize that the control of CTD is a complex issue often requiring the application of a number of different control technologies and methods. These include an ergonomically safe design - which includes engineering controls to reduce or eliminate job-related CTD stressors, e.g., force, position, repetition and vibration; employee and supervisory training and education; early recognition of the problem; early and proper medical diagnosis, treatment and care follow-up; and administrative controls - such as job enlargement, rotation and rest pauses.
The term CTD shall include the following conditions:
Cumulative trauma disorders (CTD) of the upper extremities 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).
II. Covered Facilities
This agreement covers the Sara Lee companies and locations described in Appendix A to this Agreement.
III. State Plans
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.) The states are encouraged to honor or to agree to the terms of this Agreement, and to this end it is the Company's intent to meet with each relevant state OSHA authority to attempt to execute an agreement similar to this Agreement.
IV. Ergonomics Program
Elements of the Program
A. Identification and Control of Stressors
An ergonomic review of the processes which pose a hazard of CTD shall be conducted by the consultant(s) set forth in paragraph V of this agreement. This review shall evaluate processes with regard to existing and new work positions, practices, tools and equipment to identify stressors (excessive repetition, force and vibration; and improper posture). The Company, working with the consultant(s) will attempt to determine control strategies which will eliminate or materially reduce these stressors.
The review shall consist of an evaluation of the results of the symptom survey conducted pursuant to paragraph IV herein; OSHA 200 logs, 101 forms, medical records and other relevant available documentation; written supervisory evaluation forms to be designed by the consultant; and on-site review by the consultant.
B. Engineering and Administrative Controls
The parties recognize that various engineering and administrative controls can provide extremely effective reduction in CTD incidence. Employee input will be considered by the consultant in evaluating, testing and formulating potential solutions. The Company shall implement the following measures at all appropriate facilities at positions causing or likely to cause a CTD hazard.
1. Engineering Controls: The Company shall consider and implement all feasible engineering controls including the following:
a. Reduction of extreme postures 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 implementation of adjustable fixtures which allow cuts and movements to be made in mechanically advantageous postures (close to the body).
c. Institution of a vibration monitoring program for any worker using a whizard knife which includes vibration level measurement of the knives to verify that they are in proper working order and original specification.
d. Frozen meat increases the forces required to perform various cuts. Temperature shall be controlled such that stored meat requiring hand cutting is not frozen. 2. Administrative Controls:
When engineering changes prove to be insufficient to significantly reduce the ergonomic stress that has caused or is likely to cause CTD, administrative controls, including the reduction of the amount of repetitive motion work per employee per shift, will be tested and implemented where feasible.
a. The principles of job rotation and job enlargement (i.e. varying employee's tasks) may be utilized to alleviate physical fatigue and stress of a particular set of muscles/tendon 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 previous 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 are not made of rotated employees.
b. In those jobs causing or likely to present a CTD hazard new or reassigned employees shall be given the opportunity to condition muscle/tendon 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.
c. If necessary, rest pauses shall be utilized to relieve fatigued muscle/tendon groups. 3. Orientation and Training:
The Company with input from the Consultant, will, as indicated below, develop a formal training program. The program shall consist of video training aids, quarterly training sessions as part of safety meetings and specific training for jobs causing or likely to cause CTD hazards. The training components shall be presented, as set forth below, to all employees, supervisors, employees working at positions causing or likely to cause CTD's and to employees complaining of CTD associated symptoms to the Company or to its designated medical personnel. a. Training Components
i. General - A videotape of at least 30 minutes duration shall be developed within 90 days after execution of this agreement. This shall include training on the medical aspects of CTD, the importance of early reporting and treatment, movements and positions which may cause or aggravate the condition, and activities which may be utilized to prevent, control or alleviate the problem.
within 60 days after its completion, and annually thereafter.
ii. Specific training - A videotape of at least 30 minutes duration shall be developed within 90 days, after execution of this agreement which will provide more specific information on CTD hazards and the treatment of CTD related problems. This training will provide greater detail on specific jobs, postures and activities which contribute to the development of CTD related problems and the medical management of such problems. Designated employees shall be shown this component beginning 60 days after its completion as facility specific training under subsection (c) below is initiated at each location.
iii. Job Specific - Training on a facility and position specific basis shall be provided concerning methods of controlling determined CTD 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 causing or likely to cause CTDs shall be given this component within one year after execution of this agreement. Refresher training under this agreement shall be under subsection (iv) below.
involve demonstrations and time to practice proper work techniques prior to employees being required to work at full capacity.
iv. Quarterly training on CTDs shall be included at least once every three months as part of regular safety meetings. This training shall be more specific for those jobs which may present a CTD hazard. This training shall be initiated at each facility three months after initiation
of the training noted in subsection (iii) above.
v. Supervisory - This training shall emphasize the importance of early reporting of CTD symptoms by employees, the medical aspects and proper treatment of the problem, stressors which cause and contribute to CTD's, the importance of observing how employees perform job tasks, and activities which may be utilized to prevent or control the problem. The training shall also include education on the specific jobs at respective facilities which are causing or are likely to cause CTD's, the stressors involved, and the appropriate use of light duty jobs. All designated supervisors shall be given this component within one year after execution of this agreement and thereafter, as determined by the consultant.
vi. Medical - This training shall include a detailed review of the medical aspects of CTD, and how to perform a complete 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 are causing or are likely to cause CTD's, the stressors involved, and the availability of appropriate light duty jobs. All designated medical personnel, including nurses, shall be given this component within one year after execution of this agreement and, thereafter, as determined by the consultant.
b. Training shall be provided at all facilities in accordance with the following matrix:
Specific
General Specific for Job-
Video-(3)(a)(i) Video-(3)(s)(ii) (3)(a)(iii)
All Employees* X
Supervisors X X X
Employees at
positions
causing or
likely to
cause CTD's X X X
Employees
complaining
of CTD related
symptoms X X
Medical personnel
__________________________________________________________________________
(Matrix continued)
Quarterly Supervisory Medical
-(3)(a)(iv) -(3)(a)(v) -(3)(a)(vi)
All Employees* X (general
discussion)
Supervisors X
Employees at
positions
causing or
likely to
cause CTD's X (job specific)
Employees
complaining of
CTD related
symptoms X
Medical Personnel X
__________________________________________________________________________
* New employees shall be provided training as part of orientation.
d. Medical:
i.a. The Company shall by 90 days after execution of this agreement implement a program of early detection, treatment, and follow-up of CTD at all locations. The program shall include provisions for prompt evaluation of employee symptoms. When directed by a physician or by the medical department, employees shall be given sufficient time for the involved muscle/tendon 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 physician or by the medical department, be permitted to recondition the injured muscle/tendon group by gradual resumption of duties. This shall occur in addition to any other prescribed treatments.
b. Within 1 year after execution of this agreement light duty jobs 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 duty jobs.
ii 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.
iii The medical program shall incorporate and develop the following concepts: a. A baseline survey to be completed within one year after execution of this agreement designed to measure out a plant-wide basis the extent of symptoms of work-related disorders. The Company shall utilize a uniform questionnaire for employees the results of which may be collected and processed by automated process, e.g. computer.
The survey or an alternative evaluation method shall be repeated on an annual basis.
All surveys or evaluations generated, under this section shall be provided to OSHA as they are completed.
b. When an employee in a job not previously evaluated by the consultant reports a 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.
c. A uniform medical management protocol for CTD's will be developed and implemented at all facilities covered by this agreement. All physicians and nurses will be trained to use this protocol which will include the following:
1. Standardized physical examination, medical history and recording form. The examination will at least include inspection, palpation and range of motion testing.
2. Specified protocols for the treatment of employees with positive physical signs on examination as well as those with symptoms but no physical signs. Splints should not be used during working activities unless it is determined that no deviation or bending of the splinted limb is required on the job.
3. Reevaluation shall be scheduled in no less than three days. If the condition worsens further medical management should not be undertaken without concurrent efforts to reduce the physical stresses of the job by such measures as job modification, work practice changes, administrative changes, etc. If the, condition is unchanged, a further evaluation shall be scheduled in no less than three days.
4. All recommendations for surgery for CTD's will be referred for a second opinion, where permitted by applicable state law.
B. Implementation of the Program
1. The Company will establish an ergonomics pilot program at each of the following facilities. Evaluation of the processes initially selected for review shall be completed within one year of the signing of this agreement. Implementation of all measures designed to control CTD's in the pilot projects including engineering controls shall be completed within two years of the signing of this agreement by the parties.
The processes and facilities selected for initial review are set forth below:
Process Facility
Pace Boning - (1) Kahn's, and Company,
Cincinnati, Ohio
Sausage Stuffing - Hillshire Farms, New
London, Wisconsin
Steak Cutting - Standard Meat, Ft. Worth, Texas
Beef Slaughtering - Gibbon Packing,Co, Gibbon,
Nebraska
Pork Slaughter - Bryan Foods, West Point,
Mississippi
Breast-Boning _ Bil-Mar, Ganesville, Ohio
________
FOOTNOTE(1) This facility is presently under an existing settlement
agreement which is additionally treated under paragraph X of this
agreement.
2. In addition, the corporate-wide evaluation process as to all production processes not included in the pilot program shall be completed within two years of the signing of the agreement. Final implementation of control measures shall be completed corporate-wide within three years of the signing of the agreement. Final implementation shall be effected on all locations, positions and jobs causing or likely to present the CTD hazard, including both those represented in the pilot program and those not represented in the pilot program.
V. The Consultants
An ergonomics consultant(s) qualified by education and experience shall be retained for the life of the agreement.
The Company has retained and is presently utilizing several consultants to deal with CTD hazards at its facilities covered by this agreement. The Company agrees to maintain the utilization of sufficient consultants to fully implement the terms of this agreement.
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:
(1) Within two months after execution of this agreement, the Company shall, for each covered facility, provide to OSHA a listing of work-related CTD illnesses from calendar year 1988, together with the job location of each listed incident. The listing shall include, where available, the locations(s) at which each employee worked prior to diagnosis, 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 from available information, of the facilities and positions within facilities having the prevalence of CTD injury potential.
(2) OSHA shall at its discretion conduct abbreviated baseline monitoring walkthroughs at covered facilities. The purpose of these walkthroughs is to form a baseline determination of presently prevailing conditions regarding CTD potentials.
VII. Periodic Program Meetings
A. The parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTD's. The contact persons for initiation of such meetings shall be the Sara Lee Meat Group Vice President for HR for the Company and the Deputy Director for Compliance Programming for OSHA.
B. Within 30 days after execution of this agreement, the Company shall provide the Secretary with the name of a supervisory contact person from each facility covered by this agreement each of whom shall meet with the appropriate OSHA Area Director within 90 days after execution of this agreement to discuss activities under this agreement.
VIII. Entry Onto Company Facilities
The Company agrees to allow OSHA access to all of its facilities 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 general schedule inspections as to ergonomic issues covered by this Agreement at covered facilities, except that OSHA may conduct baseline and monitoring inspections to determine compliance with this agreement and all other types of inspections permitted under the OSH Act.
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. Reports
Quarterly reports shall be submitted to the OSHA area offices having jurisdiction over each of the facilities covered by this agreement and to OSHA's national office, Office of Compliance Programming. Where such facilities are located in states with approved OSHA plans, reports shall be submitted to the appropriate state office. The reports shall describe the activities under this program during the previous three month 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.
Reports required under this agreement shall be made available to appropriate employee collective-bargaining unit representatives or, where no such unit exists, to safety and health committees.
The Company shall indicate 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 Consultant or the Company that such controls are unnecessary or inappropriate.
After the expiration of three years, such reports shall be submitted annually, unless 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.
X. Preexisting Agreements - Kahns and Company
On October 6, 1988, Kahns and Company and OSHA entered into an Informal Settlement Agreement concerning OSHA inspection No. 101650885-56224-358 at the Kahns and Company facility, at 3241 Spring Grove Avenue, Cincinnati, Ohio. The Company maintains that it is progressing with compliance with the agreement. The parties agree that the terms of that agreement shall remain in effect, including any indicated deadlines. The parties further agree that the instant agreement shall additionally apply to this facility. Any other apparent conflicts between the terms of the two agreements shall be resolved by the application of the terms of the instant agreement.
XI. Term of Agreement
This agreement shall be in effect for a period of 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.
XII. 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. 664), 18 U.S.C. 1905, and 29 C.F.R. 1903.9. The Company shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or business confidential material.
XIII. It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Therefore, the parties agree as follows:
This Settlement Agreement or the statements, actions and findings made by Respondent in connection herewith or hereafter in fulfilling its obligations hereunder do not and shall not constitute an admission by Respondent of any violation of the Act.
Without limiting the foregoing, this Settlement Agreement shall not be deemed an admission by Respondent of the allegations contained within the Citation, Notification of Penalty and Complaint that are the subject of this proceeding.
This Settlement Agreement shall not be used in any proceeding before any court, agency, commission or any other body, except for further proceedings under the Act.
Nothing contained in this Settlement Agreement shall preclude Complainant at the conclusion of the term of this Settlement Agreement from investigating any of the plants or conditions covered in this Settlement Agreement and, if appropriate, to issue citations relating to the conditions covered in this Settlement Agreement.
Wherefore, the Secretary of Labor and Hillshire Farms Co., Inc./Sara Lee Corporation agree that under the above-noted conditions this matter before the Commission as Docket No. 89-130 is hereby settled.
FOR COMPLAINANT:
_________________ _______________________
ALAN McMILLAN ROGER LOEFFELBEIN
Acting Assistant Secretary Group Vice-President
of Labor for Occupational for Human Resources
Safety and Health Sara Lee Meat Group
DATE: DATE:
ROBERT P. DAVIS PATRICK R. TYSON
Solicitor of Labor Counsel for Respondent
Constangy, Brooks and Smith
JOHN SECARAS 2400 Peachtree Center Building
Regional Solicitor 230 Peachtree Street, N.W.
Atlanta, Georgia 30303
ALLEN BEAN DATE: 8/30/89
Regional Counsel for
Occupational Safety and Health
KENNETH A. HELLMAN
Trial Attorney
DATE: 8/30/89
U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Washington, D.C. 2021
APPENDIX A
COMPANY LOCATION
Bryan Foods West Point, MS
" Smoky Hollow
Little Rock, AR
" Gordon County Farm
Calhoun, GA
Sweet Sue
Kitchens Athens, AL
State Fair
Foods, Inc. Dallas, TX
Seitz Foods St. Joseph, MO
Buring Foods* Martin, TN
Hillshire Hillshire Farms
Farm & Kahn's New London, WI
" Kahn's
Cincinnati, OH
" *Kahn's
Claryville, KY
" Kahn's
Springfield, OH
Gallo/Galileo* Gallo Salame
Salame San Francisco, CA
" Galileo-Capri
San Lorenzo, CA
" La Italia Meats
Modesto, CA
Bil Mar* Zeeland, MI
" Garretsville, OH
" *Storm Lake, IA
Design Foods Lampassas, TX (Standard)
" Ft. Worth, TX (Standard)
" Peachtree City, GA
(Hi-Brand Foods)
" *Gardena, CA (Hi-Brand Foods)
Sara Lee Sausage* Osceola, IA (Jimmy Dean)
" Florence, AL (Rudy's Farm)
" *Rowe Manufacturing
Newbern, TN (Rudy's Farm)
Gibbon
Packing Co. Gibbon, NE
Hygrade Food
Products* Tacoma, WA
" Philadelphia, PA
" *Livonea, MI
" Chicago, IL
Parks Sausages* Baltimore, MD
Ozark Salad Co. Baxter Springs, KS