___________________________________
LYNN MARTIN, Secretary of )
Labor, U. S. Department of Labor, )
)
Complainant, ) OSHRC DOCKET
) NO. 90-638
v. )
)
VAN HEUSEN COMPANY, )
)
Respondent. )
___________________________________)
The 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 to the settlement of Serious Citation No. 1 and Other Citation No. 2 based on the terms and conditions set forth below.
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, Van Heusen Company, is a corporation with its principal place of business in the State of New York. During the course of its business, Respondent, in its State of Alabama facilities uses material and equipment which it receives from places located outside the State of Alabama. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined in 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 July 26, 1989 through October 17, 1989, at Respondent's workplace in Ozark, Alabama, two citations alleging violations of the Act were issued to Respondent on January 12, 1990, pursuant to Sections 8 and 9 of the Act. Serious Citation No. 1 alleged a serious violation of Section 5(a)(1) of the Act for allegedly exposing employees to cumulative trauma disorders. Other Citation No. 2 alleged an other than serious violation of 29 CFR 1904.2(a) for alleged recordkeeping violations. Notifications of proposed penalties in the amount of $1,620.00 were also issued to Respondent on January 12, 1990.
D. Respondent disagreed with the citations and notifications of proposed penalties and filed a notice of contest. The contest was duly transmitted to the Commission.
A. Complainant agrees to amend the notification of proposed penalties to reflect a penalty of $810.00.
B. Respondent agrees to withdraw its notice of contest to the citations and penalties as amended in subsection A above. Respondent shall submit payment of the total amended penalty of $810.00 within thirty days after this Agreement becomes a final order of the Commission.
Respondent has abated the conditions noted in Other Citation No. 2. Respondent agrees to abate the conditions noted in Serious Citation No. 1 as follows:
A. Evaluate and, where advisable and feasible, implement the recommendations included in the citation as part of its ergonomic review of conditions at the facility under subsection B below.
B. Implement the following Ergonomic Agreement, which is specifically incorporated in its totality into this Agreement.
A. The parties agree that based on the foregoing representations and on the terms of the Ergonomic Agreement incorporated herein, an order may be issued showing that the Respondent has with drawn its notice of contest and entering the citations and notifications of proposed penalties, as amended, and the aforesaid Ergonomic Agreement as a final order of the Commission.
B. Each party agrees to bear its own attorney's fees and other costs and expenses incurred by such party in connection with any stage of these proceedings.
Respondent certifies that on May 20, 1991, this stipulation will be posted where affected employees can see it.
__________________________ ______________________________
PATRICK R. TYSON ROBERT P. DAVIS
Attorney for Van Heusen Solicitor of Labor
Company
__________________________ ______________________________
WILLIAM K. PRINCIPE BOBBYE D. SPEARS
Attorney for Van Heusen Regional Solicitor
Company
CONSTANGY, BROOKS & SMITH ________________________________
Attorneys for Van Heusen GEORGE D. PALMER
Company Associate Regional Solicitor
POST OFFICE ADDRESS:
2400 Peachtree Center Building _________________________________
230 Peachtree Street, N.W. CYNTHIA WELCH BROWN
Atlanta, Georgia 30303 Attorney
Tel: 404/525-8622
U. S. DEPARTMENT OF LABOR
Attorneys for ELIZABETH DOLE,
Secretary of Labor
POST OFFICE ADDRESS:
Office of the Solicitor
U. S. Department of Labor
Suite 201
2015 Second Avenue, North
Birmingham, Alabama 35203
Tel: 205/731-1311 (COM)
I. General Recognition Language
A. Van Heusen Company 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 that exist in the apparel industry as well as other industries.
The Company and OSHA also recognize that the control of CTDs is a complex issue often requiring the application of a number of different control technologies and methods. These may include, but are not limited to, an ergonomically safe design, which may include the application of engineering controls intended to reduce or eliminate job-related CTD stressors [e.g., force, improper posture, position, repetition, vibration 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 of CTDs; early and proper medical diagnosis and follow-up care; and administrative controls such as job enlargement, cross training, alternative methods, and work practice controls.
B. 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), epicondylitis (tennis elbow or golfer's elbow), and low back strain.
II. Covered Facilities
This Agreement covers the following Company locations:
Ozark, Alabama
Clayton, Alabama
Geneva, Alabama
Hartford, Alabama
Opp, Alabama
Augusta, Arkansas
III. Ergonomics Program Elements of the Program
A. The Consultant
1. The Company agrees to retain the services of a Consultant to assist the Company in attempting to reduce or eliminate employee exposure to ergonomic stressors. The Consultant will assist the Company in performing an ergonomic analysis of production jobs that may pose an ergonomic hazard, in evaluating OSHA's proposed abatement methods, in recommending proposed abatement methods for production processes which may pose an ergonomic hazard, and 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 to identify ergonomic hazards and possible means of abatement of such hazards.
The review shall also consist of an evaluation by a Consultant of the OSHA 200 logs, OSHA 101 forms, medical records and other relevant available documentation.
B. Ergonomic Program at the Ozark Facility
1. Implementation of the Program
(a) Within two months after the entry of a final Order by the Commission, the Company shall initiate an evaluation of the CTD hazards and possible means of abatement identified by OSHA in its citations and/or by the Consultant. Such evaluation shall be completed no later than one year from entry of a final Order by the Commission.
(b) Input from the employees on the jobs being studied or evaluated shall be considered in formulating, testing and evaluating potential controls.
(1) Engineering Controls. The Company shall evaluate, test and implement all appropriate and feasible engineering controls at positions reasonably believed to be causing or likely to cause a CTD.
(2) Administrative Controls. When engineering controls are determined to be insufficient to significantly reduce or eliminate ergonomic stressors related to CTD, that have been determined to cause or that are likely to cause a CTD, feasible administrative and work practice controls, including the reduction of the amount of repetitive motion work, will be evaluated and implemented where feasible.
(i) The principles of job enlargement (e.g., varying employees' tasks), cross-training, and alternative methods may be considered to alleviate physical fatigue and stress of a particular set of muscles/tendons/nerve groups.
(ii) In those jobs that have been determined to cause or that are likely to cause a CTD hazard, new or reassigned employees shall be given the 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 can achieve a full rate of production.
(iii) If necessary, rest pauses will be evaluated to relieve fatigued muscle/tendon groups.
2. Time of Implementation.
The Company agrees to begin implementation of appropriate and feasible engineering and administrative controls within 30 days after the entry of a final Order by the Commission and shall thereafter in good faith implement appropriate and feasible controls at positions reasonably believed to be causing or likely to cause a CTD hazard.
C. Ergonomic Program at the Other Facilities
1. Implementation of Controls for the Same or Similar Jobs: To the extent that other company facilities covered by this Agreement have the same or similar jobs as the Ozark facility, the company agrees to implement the same engineering, work practice, and administrative controls identified as a result of its efforts at the aforementioned facility at each of the other covered facilities.
2. Implementation of Controls for Different Jobs: To the extent that these facilities have jobs different from those addressed at the Ozark plant, the Company shall provide both for ergonomic analysis of those jobs that have been determined to cause or that are likely to cause a CTD hazard, as well as evaluation, testing and implementation of appropriate and feasible controls to attempt to materially reduce or eliminate the ergonomic stressors associated with those jobs.
3. Time of Implementation: The Company agrees to begin implementation of appropriate and feasible engineering and administrative controls at these facilities no later than eighteen months after entry of a final Order by the Commission and shall thereafter in good faith implement appropriate and feasible controls at positions reasonably believed to be causing or likely to cause a CTD hazard.
IV. Orientation, Education and Training Program:
A. Development of the Program
1. The Company will develop and implement at each of the plants covered by this Agreement a formal orientation, education, and training program. The training and education program shall be presented to all employees, supervisors, medical personnel, and employees working at positions identified as causing or likely to cause CTDs and to employees complaining of CTD- associated symptoms to the company or to its designated medical personnel.
B. Training and Education Components.
1. General - A presentation shall be developed within 90 days from the entry of a final Order by the Commission. 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. Using its reasonable best efforts, the Company shall provide the training presentation at all of the covered plants by May 1992. Training and education about CTDs shall be provided annually thereafter to employees, supervisors and on-site medical personnel. Special emphasis will be placed on the recognition of the early symptoms of such disorders.
This presentation will also provide direction to those employees who, after following the instructions provided by the Company, manifest physical difficulties (e.g., pain) beyond that which would normally be expected. These employees will be encouraged to report any such difficulties for appropriate treatment and disposition.
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, activities which may be utilized to prevent or control the problem, and the importance of correcting and maintaining proper work methods. 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. 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 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 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 one year after entry of a final Order by the Commission.
4. New employees or supervisors shall he provided training as part of orientation. Training shall be updated with changes in the sate of technology and as each engineering, work practice, and administrative control measure is implemented.
V. Medical Management Program:
A. Elements of the Program
1. Each facility covered by this Agreement shall 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 physician or by Company medical personnel, employees shall be given sufficient time for the involved muscle/tendon/nerve to heal. This time may include time off work, transfer to another job which poses a lesser risk of such injuries, or modified duty at the employee's regularly assigned job. When injured employees require time off work,, upon returning to work they shall, when directed by a physician or by Company medical personnel, and if appropriate and available, 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. A medical management protocol for CTDs will be developed and implemented for 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, palpitation 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 no more than three working days. If the condition is unchanged, a further evaluation shall be scheduled in no more than three working days.
d. The protocol shall provide for referral to physicians when conservative treatment does not rapidly abate the signs or symptoms of CTD.
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. It is important to avoid placing any limits on the number of times an employee may visit the health unit. If an employee reasonably requests and visits medical facilities for CTD symptoms, there shall be no limit on the number of times an employee may visit the health unit. This provision does not create any right or remedy beyond those included in Section 11(c) of the Act.
4. 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 in measuring progress in this effort to reduce the incidence of CTDs.
A. Within 90 days after entry of a final Order by the Commission, the Company shall, from information available from the OSHA Form 200 log and Form 101 supplemental report for each covered facility, provide to OSHA a listing of work-related CTD illnesses from calendar years 1989 and 1990, together with the job location of each listed incident. Where available from the OSHA 200 Log and Form 101 supplemental record, the listings shall also include the location(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.
B. OSHA may at its discretion conduct baseline monitoring walk-throughs at covered facilities. The purpose of these walk- throughs is to form a baseline determination of presently prevailing conditions regarding CTD potentials.
VII. Periodic Program Meetings
If it is deemed necessary by either party, the parties shall meet on a semi-annual basis to discuss the Company's progress in dealing with CTDs. Within 30 days after entry of a final Order by the Commission, the Company shall provide the Area Director with the name of the Management Representative at each facility who will be available to meet with an OSHA representative to discuss the implementation of the Company's ergonomics program, should such a meeting be deemed necessary.
VIII. Entry Onto Company Facilities
The Company agrees to allow OSHA reasonable access to all of its covered facilities listed in paragraph II of this Agreement and to appropriate documents for the purpose of determining progress and compliance with this Agreement, and to conduct all other types of compliance inspections under the Occupational Safety and Health Act. OSHA agrees that, assuming continued good faith implementation of this Agreement by the Company, it shall not conduct any general schedule inspections as to ergonomic issues covered by this Agreement at any of the covered facilities during the life of this Agreement, except that OSHA may at its discretion and upon reasonable notice to the Company 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 (three years from the entry of a final order by the Commission), 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 being reasonably addressed or will be addressed pursuant to this Agreement, no citation shall be issued.
OSHA retains the right to issue ergonomic related citations and/or notices to any covered facility in the event the Company is determined by OSHA not to be implementing this Agreement in good faith.
IX. Reports
For the first twelve months, quarterly, and for the remaining twenty four months, semi-annually, reports for each of the covered facilities shall be submitted to the OSHA Area Office having jurisdiction over each of the facilities covered by this Agreement. The reports shall describe the activities under this program during the previous period, including the number of employees receiving training, the number of employees treated for CTD, the extent of such treatment, the implementation of engineering and/or administrative controls with respect to operations determined to cause or likely to cause CTD hazards, any pilot projects conducted, and any other relevant information. The reports shall also describe engineering and/or administrative controls that have been recommended by the consultant, but not implemented, and explain the reasons for not doing so.
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 made available to appropriate employee collective-bargaining unit representatives or, where no such unit exists, to safety committees.
X. Term of Agreement
This Agreement shall be in effect for a period of three years from the entry of a final order by the Commission. The Agreement shall 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.
XI. 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 confidential business material.
WHEREFORE, the Secretary of Labor and Van Heusen Company agree that under the above-noted conditions this matter before the Commission as Docket No. 90-638 is hereby settled.
I certify that the foregoing Stipulation and Joint Motion was served on this 21st day of May, 1991, by mailing true copies thereof by postage prepaid, first-class mail, to the following:
William K. Principe, Esquire
Constangy, Brooks & Smith
230 Peachtree Street, N.W.
Suite 2400
Atlanta, Georgia 30303-1557
________________________________
Cynthia Welch Brown