SECRETARY OF LABOR,

Complainant,

v.

JOHN MORRELL & CO.,
SIOUX FALLS PLANT, and its
successors,

Respondent,

UNITED FOOD & COMMERCIAL
WORKERS, LOCAL 304A, AFL-CIO,

Authorized
Employee
Representative.

OSHRC Docket Nos. 87-0635 & 88-2522

ORDER

The Occupational Safety and Health Review Commission has received the parties' Motion for Consolidation and Settlement Agreement in the captioned action. Docket No. 87-635 is before the Commission pursuant to Directions for Review by Former Commissioner Linda L. Arey and Former Chairman E. Ross Buckley. Docket No. 88-2522 is before the Commission pursuant to a Direction for Review by Chairman Edwin G. Foulke, Jr.

The parties' Motion for Consolidation for purposes of settlement has been considered pursuant to Commission Rule 9, 29 C.F.R. 2200.9. Since both matters have common parties and involve the same overall worksite, the Motion to Consolidate Docket Nos. 87-635 and 88-2522 is granted.

Having reviewed the Settlement Agreement, attached hereto, it is found that the Agreement disposes of all issues pending before the Occupational Safety and Health Review Commission in this matter. Therefore, the Settlement Agreement is Approved.

Accordingly, the Motion to Consolidate is granted and the Settlement Agreement is approved pursuant to a delegation of authority to the Executive Secretary, 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979). The terms of the Settlement Agreement are incorporated as part of this Order. The citation items are affirmed, modified, or vacated in accordance with the terms of the Settlement Agreement.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: April 27, 1990

 

 


ELIZABETH DOLE,
SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,

Complainant,

v.

JOHN MORRELL & CO.,
SIOUX FALLS PLANT, and its
successors,

Respondent.

UNITED FOOD & COMMERCIAL WORKERS,
LOCAL 304A, AFL-CIO,

Authorized
Employee
Representative.

OSHRC Docket Nos. 87-0635 and 88-2522

Region VII

MOTION FOR CONSOLIDATION AND SETTLEMENT AGREEMENT

The parties, JOHN MORRELL & CO., SIOUX FALLS PLANT ("Morrell" or "the Company") and its successors; the SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR ("the Secretary" or "OSHA"); and the UNITED FOOD & COMMERCIAL WORKERS, LOCAL 304A, AFL-CIO ("the Union"), by their undersigned representatives, have reached a full and complete settlement of OSHRC Docket Nos. 87-0635 and 88-2522 under 29 C.F.R. 2200.100, the Occupational Safety and Health Review Commission's ("Commission") procedural rule on settlement. Accordingly, the parties state as follows:

A. Jurisdiction/Amendments/Procedural Matters

1. The Commission has jurisdiction of these matters under 29 U.S.C. 659(c), Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").

2. The parties move, pursuant to the Commission Rule at 29 C.F.R. 2200.9, that these matters, OSHRC Docket Nos. 87-0635 and 88-2522, be consolidated for purposes of settlement. The two matters have common parties and involve the same overall worksite.

3. The Secretary amends the Citations and proposed penalties in OSHRC Docket Nos. 87-0635 and 88-2522 as follows:

(a) The characterization of Citation No. 5 in OSHRC Docket No. 87-0635 is amended to "other" than serious, and the proposed penalty for OSHRC Docket No. 87-0635 is amended to $0.00.

(b) Citation No. 1 in OSHRC Docket No. 88-2522 is amended to delete all characterizations. The total proposed penalty for OSHRC Docket No. 88-2522 is amended to $990,000. Citation No. 1 is amended further by the terms of this Agreement as a whole (hereinafter "Citation No. 1"). In addition to the proposed penalty, as amended, Morrell will give a grant to the National Institute for Occupational Safety and Health ("NIOSH") in the amount of $260,000 for the continuing study of musculoskeletal injuries by NIOSH.

(c) Within thirty days of the Commission's Final Orders in these matters, Morrell promises to pay one half of the proposed penalty, as amended, set forth at Paragraph 3(b) above. The payment shall be made to "OSHA-Labor". Within the same thirty-day period, Morrell will make the grant to NIOSH also set forth at Paragraph 3(b) above. The remaining one half of the proposed penalty, as amended, shall be paid within six months of the date of the first payment to OSHA referred to in this Paragraph 3(c).

4. The parties agree to bear their own attorneys' fees, costs, and, other expenses that have been incurred in connection with any stage of these proceedings up to and including the filing of this Agreement and entry of the Final Orders in these matters.

5. The parties agree that this Settlement Agreement shall become a Final Order of the Commission. Included with this Agreement is a draft order approving this settlement. The form and content of this draft order and this Agreement have been negotiated by the parties. The parties hereby consent to the entry of this draft order so that the litigation of these matters may be brought to an end.

6. Morrell withdraws its Notice of Contest to the Citation in OSHRC Docket No. 88-2522. This withdrawal, however, is made solely to facilitate the settlement of this matter. It does not qualify and is not to be interpreted as being inconsistent with Paragraph 32 below.

7. For purposes of service and notice, Morrell certifies that the original Notices of Contest as well as all pleadings in OSHRC Docket Nos. 87-0635 and 88-2522, including a copy of this Agreement, have been served on affected employees at the Sioux Falls Plant in accordance with the Commission Rule at 29 C.F.R. 2200.7.

8. There are no items in either OSHRC Docket No. 87-0635 or OSHRC Docket No. 88-2522 that remain to be decided by the Commission.

B. Steps to Address the Ergonomic Conditions in Citation No. 1, OSHRC Docket No. 88-2522

9. General Recognition and Definitions.

(a) Morrell and OSHA recognize that cumulative trauma disorders are occupational illnesses in the meat packing industry, as well as in other industries with similar types of jobs. The parties also recognize that methods to materially reduce or eliminate the ergonomic stressors related to CTD can be complex. Such methods may require the application of a number of different control technologies such as engineering controls to materially reduce or eliminate job-related ergonomic stressors related to cumulative trauma disorders, 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 ergonomic program set forth in this Agreement is intended to materially reduce or eliminate the ergonomic stressors related to the cumulative trauma disorders that may arise from the Production Jobs, as defined below.

(b) The term "cumulative trauma disorders" ("CTD") is defined in Attachment B appended to this Agreement and includes those medical disorders of the upper extremities defined by specific criteria and associated with certain work activities (such as repetitive motion). Examples of these types of disorders include tenosynovitis, carpal tunnel syndrome, cubital tunnel syndrome, stenosing tenosynovitis of the fingers, and epicondylitis.

(c) In addition to those 171 production jobs that are the subject of Citation No. 1, Morrell estimates that there are approximately 700 other production jobs in the beef and pork production and processing areas at its Sioux Falls Plant. In this Agreement, these approximately 871 jobs shall be referred to collectively as "Production Jobs".

(d) The 171 Production Jobs that are the subject of the Citation No. 1 shall be referred to collectively as the "Cited Jobs" and are addressed in this Section B of the Agreement. The approximately 700 remaining Production Jobs shall be referred to collectively as "Non-Cited Jobs" and are addressed in Section C of this Agreement.

(e) The Cited Jobs shall be divided into two categories: (1) for 66 jobs, which are listed in Attachment A appended to this Agreement, Morrell, with the advice and guidance of the the Ergonomic Consultant, is to conduct an analysis to determine whether those jobs expose employees to ergonomic stressors related to CTD ("Attachment A Jobs"); and (2) the remainder of the Cited Jobs are jobs which have been identified by OSHA in Citation No. 1 as jobs that expose employees to ergonomic stressors related to CTD ("Ergonomic Stressor Jobs").

10. Ergonomic Consultant. Morrell has retained or employed one or more person(s) (or company) qualified by education and experience about ergonomics ("Ergonomic Consultant") and has begun a program at its Sioux Falls Plant to address ergonomic stressors related to the various types of upper extremity cumulative trauma disorders. Within thirty days of the entry of the Commission's Final Order in this matter, Morrell will confirm that an Ergonomic Consultant will be retained for a period of at least four years from the date of the Commission's Final Order in this matter. The Ergonomic Consultant will assist Morrell in performing an ergonomic analysis of certain jobs and in developing and implementing an ergonomic program as discussed in this Agreement.

11. Attachment A Jobs - Determining Ergonomic Stressors Related to CTD. The program for analysis of the Attachment A Jobs shall proceed as follows:
(a) Recognizing that the ergonomic stressors related to CTD may vary from Attachment A Job to Attachment A Job, Morrell, with the advice and guidance of the Ergonomic Consultant, will conduct both an incident analysis and an ergonomic analysis for such Attachment A Jobs as set forth in subsections (i) through (iv) below:

(i) The incident analysis for each specific Attachment A Job will include an evaluation of the information contained in the following sources: OSHA 200 Logs, OSHA 101 forms, employee complaints, medical records and medical surveillance data maintained by Morrell, and employee input (including input from employees who hold the Attachment A Job being studied).

(ii) The ergonomic analysis for CTD for each specific Attachment A Job will include an evaluation of the ergonomic stressors for that job including anthropometry, posture, force, tools, gloves, vibration, frequency of action, as well as time between actions and related considerations. The ergonomic analysis also will include the use of survey tools such as photography (including videotape), the taking of measurements (e.g. range of motion, etc.), and employee input (including input from employees who hold the Attachment A Job being studied).

(iii) The analyses described in this Paragraph are to be completed within twelve months of the date of the Commission's Final Order in this matter. Morrell specifically notes that the information generated by these analyses may be proprietary and confidential, and thus, such information is subject to Paragraph 30 of this Agreement.

(iv) Upon completion of the analyses described in this Paragraph, each Attachment A Job determined by Morrell, with the advice and guidance of the Ergonomic Consultant, to present an ergonomic stressor related to CTD shall be classified, for purposes of this Settlement Agreement, as an Ergonomic Stressor Job (as defined in this Agreement).

(b) The Attachment A Jobs that are determined to be Ergonomic Stressor Jobs shall be subject to the provisions of this Agreement relating to Ergonomic Stressor Jobs. Morrell will advise the Secretary and the Union how those jobs are merged in the plan or methodology for Ergonomic Stressor Jobs in the next status report.

12. Ergonomic Stressor Jobs - Evaluating and Testing OSHA's Recommended Abatements. With respect to the Ergonomic Stressor Jobs, Morrell, with the advice and guidance of the Ergonomic Consultant, will design and implement an ergonomic program, which shall be in writing, to test and evaluate the OSHA recommended abatements in Citation No. 1 as follows:

(a) Within six months of the date of the Commission's Final Order in this matter, the Ergonomic Consultant (1) will review the specific OSHA recommended abatements in Citation No. 1 for each of the Ergonomic Stressor Jobs; (2) will review and evaluate those ergonomic improvements Morrell has implemented or proposed as part of its ergonomic program; (3) will conduct literature and manufacturing searches for tools, devices or other items that may reduce ergonomic stressors related to CTD; and (4) at a time and place convenient to all parties, will have a meeting with representatives from Morrell, OSHA, and the Union to give OSHA an opportunity to explain its findings and recommended abatements. Morrell then will identify, in the next status report, those Ergonomic Stressor Jobs which have been abated and those in which the ergonomic stressor identified in Citation No. 1 remains to be abated.

(b) Thirty days after the time period set forth in the step described in Paragraph 12(a), Morrell will begin to evaluate and test the specific OSHA recommended abatements for each particular Ergonomic Stressor Job as follows:

(i) Morrell will evaluate all of the OSHA recommended abatements specifically identified for a specific Ergonomic Stressor Job in Citation No. 1. Those recommended abatements specifically identified in Citation No. 1 for a specific Ergonomic Stressor Job also will be tested, if Morrell, with the advice and guidance of the Ergonomic Consultant, determines in its evaluation that a particular recommended abatement is feasible. For those OSHA recommended abatements that Morrell determines are not feasible, Morrell will state the reason or reasons for its determination in the status reports described in Paragraph 23 of this Agreement. If OSHA disagrees with Morrell's determination, OSHA and Morrell will follow the procedures set forth in Paragraph 15 of this Agreement.

(ii) As part of the testing procedure, and where appropriate, experimental work stations will be used and employee input sought and considered.

(iii) For those OSHA recommended abatements implemented, Morrell, with the advice and guidance of the Ergonomic Consultant, also will develop a method for determining the efficacy of the OSHA recommended abatements to materially reduce or eliminate ergonomic stressors related to CTD.

(iv) Morrell is first to begin testing of those OSHA recommended abatements involving engineering controls. If those engineering controls prove not to be feasible in materially reducing or eliminating ergonomic stressors related to CTD, Morrell then will test feasible OSHA recommended abatements involving administrative controls, including the appropriate combination of one or more of job rotation or enlargement or reduction of repetitive motion per employee per job. If Morrell tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs contained in the rotation must have been completed prior to implementation. The jobs to be within the ergonomic rotation are to show decreased and/or different physical demands. Nothing in this paragraph prohibits Morrell from testing administrative controls prior to, or in conjunction with, testing engineering controls.

13. Implementation of the OSHA Recommended Abatements.

As this ergonomic program progresses, those OSHA recommended abatements that are feasible in materially reducing or eliminating ergonomic stressors related to CTD will be implemented by Morrell. Morrell is first to begin implementation of those feasible OSHA recommended abatements involving engineering controls. If those engineering controls prove not to be feasible in materially reducing or eliminating ergonomic stressors related to CTD, Morrell then will begin to implement those feasible OSHA recommended abatements involving administrative controls. Although Morrell will implement those methods as expeditiously as possible, the implementation shall be completed within three years after the date of the Commission's Final Order.

14. Further Analysis of the Ergonomic Stressor Jobs. Nothing in this Agreement precludes Morrell or the Ergonomic Consultant from conducting a further analysis of the Ergonomic Stressor Jobs or recommending, testing or evaluating other potential methods of materially reducing or eliminating ergonomic stress. If OSHA's recommended abatements for the Ergonomic Stressor Jobs do not materially reduce or eliminate ergonomic stressors related to CTD for such jobs, Morrell will conduct such further ergonomic analysis as may be necessary and test and implement feasible methods of materially reducing or eliminating such ergonomic stressors related to CTD.

15. Procedure for Resolving Disputes. If the Secretary disagrees with Morrell's determination of (1) whether the Attachment A Jobs are Ergonomic Stressor Jobs; (2) those Ergonomic Stressor Jobs which have been abated and those Jobs in which the ergonomic stressor identified in Citation No. 1 remains to be abated; or (3) the feasibility of the OSHA recommended abatements for the Ergonomic Stressor Jobs, she will state her points of disagreement, and the reason or reasons she disagrees, in writing so that Morrell can review them with the Ergonomic Consultant. The Secretary and Morrell, with input from the Union, will then engage in good faith discussions to resolve the disagreement. This paragraph is not intended to limit the Secretary's right to use, as appropriate, enforcement methods provided by the Act.

16. Employee Input. Employee input on ergonomic or CTD issues (including potential methods of materially reducing or eliminating ergonomic stress) is, and will continue to be, considered and encouraged through the Company's Joint Employee/Management Safety Committee, through the various departmental safety meetings, and through the employee suggestion system.

C. Steps to Address Ergonomic Conditions At the Sioux Falls Plant Other Than Those in Citation No. 1, OSHRC Docket No. 88-2522

17. Ergonomic Program for Non-Cited Jobs. Morrell, with the assistance of the Ergonomic Consultant, also will evaluate the approximately 700 Non-Cited Jobs to determine which, if any, of those jobs expose employees to ergonomic stressors related to CTD. The ergonomic program for the Non-Cited Jobs will proceed as follows:

(a) Incident Analysis. Within one year after the date of the Commission's Final Order, Morrell will conduct an incident analysis of the Non-Cited Jobs. The incident analysis will include an evaluation of the information contained in the following sources: OSHA 200 Logs, OSHA 101 forms, employee complaints, medical records and medical surveillance data maintained by Morrell, including available data derived from Attachment B, and employee input.

(b) Ergonomic Analysis and Testing. Thirty days after the time period set forth in Paragraph 17(a) above, Morrell will develop a plan for the ergonomic analysis of the jobs, the evaluation of any ergonomic improvements already in place or proposed, the recommendation of methods to materially reduce or eliminate CTD and the testing and evaluation of those methods as follows:

(1) For each specific Non-Cited Job, an ergonomic analysis will be performed which will include an evaluation of the ergonomic stressors for that job including anthropometry, posture, force, tools, gloves, vibration, frequency of action, as well as time between actions and related considerations. The ergonomic analysis also will include the use of survey tools such as photography (including videotape), the taking of measurements (e.g. range of motion, etc.), and employee input. Morrell specifically notes, however, that information generated by the ergonomic analysis may be proprietary and confidential, and thus, such information is subject to Paragraph 30 of this Agreement.

(2) For those Non-Cited Jobs for which an ergonomic program is deemed necessary, Morrell will test and evaluate methods that may materially reduce or eliminate ergonomic stressors related to CTD. Morrell will first begin testing of feasible engineering controls. If such engineering controls prove not to materially reduce or eliminate ergonomic stressors related to CTD, feasible administrative controls will be tested. Such controls to be tested and evaluated will include, depending upon the type of ergonomic stressor:

(a) Engineering controls, such as re-orientation of knife or tool handles, use of adjustable fixtures or rotating cutting tables to provide for easier manipulation of meat, use of adjustable work stations or other devices (such as delivery bins) to accommodate height and reach limitations of workers.

(b) Engineering controls, such as automation, use of mechanical tools (e.g. those which aid in removing bones or separating meat from bones), use of power tools, maintenance of sharp cutting edges, use of adjustable fixtures that allow movements to be made in ergonomically-sound postures.

(c) Monitoring the whizard knives to ensure that they are maintained in accordance with the manufacturer's instructions in order to avoid excessive vibration.

(d) Morrell will use its best efforts to ensure that stored meat requiring hard cutting is not frozen.

Administrative Controls

(a) Administrative controls such as the appropriate combination of one or more of job rotation or enlargement or reduction of repetitive motion per employee per job or, if necessary, rest pauses, will be tested. If Morrell tests or implements job rotation as a means of addressing ergonomic stressors, an ergonomic analysis of all jobs contained in the rotation must have been completed prior to implementation. The jobs to be within the ergonomic rotation are to show decreased and/or different physical demands; or,

(b) For those jobs that have an ergonomic stressor related to CTD, new or reassigned employees will be provided on-the-job training. The training will continue until the divisional trainer or department supervisor determine either that such new or reassigned employee has the requisite ability to perform the job with proper technique or, that, notwithstanding the training, the employee does not have such ability. If such employee is determined to have such ability for the job, he or she will be required to pull full count.

(3) Those Non-Cited Jobs for which no ergonomic program is deemed necessary, if any, will be listed and the reason(s) such program is not necessary will be stated.

18. Implementation for Non-Cited Jobs. As the ergonomic program for Non-Cited Jobs progresses, those feasible methods tested and evaluated pursuant to Paragraph 17 and found to materially reduce or eliminate ergonomic stressors related to CTD will be implemented by Morrell. Morrell first will begin to implement those engineering controls that are feasible. If such engineering controls prove not to materially reduce or eliminate ergonomic stressors related to CTD, Morrell will begin to implement those administrative controls that are feasible. Morrell will implement such feasible methods of materially reducing or eliminating ergonomic stressors related to CTD as expeditiously as possible, and all such methods will be implemented within four years after the Commission's Final Order in this matter.

19. Education Program. Morrell, with the advice of the Ergonomic Consultant, will develop and implement an education program at its Sioux Falls Plant. This education program will be developed within four (4) months after the date of the Commission's Final Order in this matter and will begin promptly thereafter until completed as set forth below. The program, which will be at least 1 hour in length, will be designed to educate its employees (including its medical personnel), supervisors, engineers, and other plant management personnel on the medical aspects of CTD such as the early signs of CTD, the range of disorders (i.e., what they are), causes of these disorders, means of prevention, and the importance of early reporting of symptoms of CTD. The program will include a description of the ergonomic program and the ergonomic work taking place in the Sioux Falls Plant so that employees will be familiar with it. The program also will include a portion designed to educate employees about knife maintenance, tool preparation and the postures or other activities that may create an ergonomic stressor related to CTD in their jobs. All new employees will be given such education during orientation. Each month, groups of those employees then holding Cited or Non-Cited Jobs (with priority being given to those in Cited Jobs) will be provided such education until all of the approximately 2000 such employees have been educated. All such employees will be provided this education within twelve months of the date of the Commission's Final Order in this matter. Thereafter, each calendar year for the term of this Agreement, such employees will receive refresher training once each quarter as part of the regularly scheduled departmental safety meetings. At least one such quarterly meeting a year will be at least thirty (30) minutes in length.

20. Training Program. Within six months from the date of the Commission's Final Order in this matter, Morrell, with advice of the Ergonomic Consultant, will establish a training program for new and reassigned workers at Morrell's Sioux Falls, South Dakota plant who are to begin working in Production Jobs involving the use of knives as follows:

(a) After orientation, which includes the education program described in Paragraph 19, each such new or reassigned employee will receive a demonstration of the applicable knife and equipment to be used as well as classroom training on the following subjects:

(1) knife care and maintenance;

(2) hazards of improper knife handling;

(3) types of knives associated with individual work duties; and,

(4) tools and devices associated with individual work duties.

(b) New employees also will be familiarized with applicable safety procedures including glove and equipment rules. The classroom training will be conducted by divisional trainers who will be management personnel and who will be excluded from production or production supervision responsibilities during the training periods set forth in this Paragraph 20.

(c) Following the classroom training, such new or reassigned employees shall be assigned to work with a qualified co-employee who will provide on-the-job training. This on- the-job training will be monitored by the divisional trainer and the departmental supervisor at regular intervals. During this on-the-job training, the divisional trainer will work with employees on the production line or, if needed, in additional classroom training. Each such new or reassigned employee, at his or her option, may request his/her divisional trainer for more classroom training. The training will continue until the divisional trainer and department supervisor determine either that such new or reassigned employee has the requisite ability to perform the job with proper technique or, that, notwithstanding training, the employee does not have such ability. During the on-the-job training period, the co-employee shall not be expected to meet the same production standard as other qualified employees on the same job that do not have training responsibilities. If such new or reassigned employee is determined to have such ability for the job, he or she will be required to pull full count.

(d) The training described above will be designed to emphasize the need to develop safe and efficient work techniques before an employee is expected to pull full count.

21. Medical Management Program.

(a) Within thirty days of the Commission's final order, Morrell will retain a medical consultant(s) knowledgeable about CTD to develop a medical management program for work-related CTD at the Sioux Falls Plant ("Medical Consultant"). Morrell agrees to retain the Medical Consultant for its Sioux Falls Plant for at least four years from the date of the Commission's Final Order in this matter.

(b) Attachment B, which is appended to this Agreement and incorporated into it by reference, sets forth the basic medical management program that Morrell will implement and the times by which it will be implemented.

D. Sioux City, Iowa, Plant

22. State of Iowa Agreement. Pursuant to an agreement with the State of Iowa, Morrell has developed an ergonomic program for its Sioux City, Iowa plant. Morrell has been implementing its ergonomic program at Sioux City. Outside the scope of any abatement obligation under this Agreement with the Secretary, however, Morrell intends to use an ergonomic program outlined in this Agreement, as necessary, as part of its Sioux City ergonomic program. It is Morrell's intent to meet with the State of Iowa to execute an agreement similar to this Agreement. The State of Iowa is encouraged to honor the terms of this Agreement.

E. Reports Regarding Ergonomic and Medical Management Programs

23. Morrell will complete status reports on the programs at the Sioux Falls Plant set forth in this Agreement quarterly for two years and semi-annually thereafter until the Agreement is completed. Such status reports will be completed within 30 days of the end of each period and will indicate the work completed in the immediately past period and the work which it anticipates completing in the upcoming period. The first reporting period will begin as of the date of the Commission's Final Order in this matter. Morrell will make available to OSHA's Bismark Regional Administrator any programs, reports, and analyses prepared pursuant to Paragraphs 11(a), 14, 17, and 23 of this Agreement and paragraph 4(d)(1)(b)(1)(b) of Attachment B, but all subject to the confidentiality provisions in Paragraph 30 below. Except for those documents and other information that are confidential or proprietary (and thus subject to the provisions of Paragraph 30), Morrell also will make available such programs, reports and analysis to the President of the Local 304A. OSHA's and the Union's contact at Morrell's Sioux Falls plant will be the Sioux Falls' plant manager.

F. Steps to Address the Conditions Cited in OSHRC Docket No. 87-0635 - Recordkeeping

24. (a) Morrell will correct the entries in its OSHA 200 Logs for those items listed in Paragraphs 8 and 11 on pages 37 and 38 of the Administrative Law Judge's decision in OSHRC Docket No. 87-0635. This step will be completed within thirty days of the Commission's Final Orders in these matters.

(b) Morrell agrees to continue to maintain its occupational injury and illness recordkeeping practices in accordance with the Act, the recordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLS Guidelines, as the same may be amended from time to time.

25. Morrell will undertake an audit of the occupational injury and illness recordkeeping practices at its Sioux Falls and Sioux City Plants, by doing the following:

(a) Undertake an examination of relevant records in its possession and ensure that OSHA-required records going back to January 1, 1988, are in compliance with the Act, the regulations at 29 C.F.R. Part 1904, the OSHA Form 200 Log, and the Revised Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics, in April 1986, which together shall be referred to here as "OSHA recordkeeping requirements." The Secretary agrees that, during this examination period by Morrell, and for any item properly placed on the OSHA Form No. 200 Log (including the completion of the OSHA Form No. 101) as a result of this examination, Morrell will not be cited for allegedly failing to comply with OSHA recordkeeping requirements.

(b) Institute, at its Sioux Falls, South Dakota; and Sioux City, Iowa plants, a training program in OSHA recordkeeping requirements to train those Morrell employees having responsibility for OSHA recordkeeping. The training program will be conducted by an individual(s) knowledgeable in the OSHA recordkeeping requirements and will include instruction on OSHA recordkeeping regulations and guidelines.

(c) The actions discussed in Paragraphs 25(a) and 25(b) will be completed within six months of the Commission's Final Orders in these matters.

G. Entry Onto Company Facilities

26. During the term of this Agreement, Morrell will permit OSHA reasonable entry into, and reasonable inspection of, its Sioux Falls Plant to determine compliance with this Agreement ("monitoring inspections") and with the Act. Morrell will not require a warrant for any such reasonable entry or inspection.

27. The Secretary agrees that OSHA will not issue citations nor take any other enforcement action against Morrell for any ergonomic conditions identified in the programs, reports, analyses, or monitoring inspections set forth in this Agreement, provided such conditions are being or will be addressed in good faith in accordance with this Agreement (including correction, if necessary).

28. OSHA agrees that, if Morrell is implementing this Agreement, OSHA shall not conduct a general schedule inspection relating to ergonomic conditions in Morrell's plant during the implementation period of this Agreement. OSHA may continue to conduct complaint, fatality, referral, and catastrophe inspections and monitoring inspections as set forth in Paragraphs 26 and 27. OSHA further agrees that, during the abatement period, if it discovers, in the course of a monitoring inspection, any condition it believes may be a violation, OSHA will so inform Morrell before completing the monitoring inspection.

H. General Provisions

29. Extensions of Time. The Secretary and Morrell shall confer in good faith with the intent of achieving agreement on some reasonable extension or extensions of the periods set forth in this Agreement, if such should become necessary. The language in this paragraph, however, is not intended to supercede the Commission Rule at 29 C.F.R. 2200.37, which deals with petitions for modification of the abatement period.

30. Treatment of Confidential Material. All documents or other information made available by Morrell under this Agreement shall be handled pursuant to Section 15 of the Act (29 U.S.C. 664), 18 U.S.C. 1905, 29 C.F.R. 1903.9. Morrell shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or confidential material. No document or information that is proprietary or confidential shall be made available, directly or indirectly, to the public (including the Union) in any form whether by summary, analysis or verbatim. All documents or other information that contain proprietary or confidential information will be made available to the Union by Morrell only after the execution of a separate confidentiality agreement.

31. Discrimination. Morrell agrees to continue to comply with Section 11(c) of the Act, 29 U.S.C. 660(c), which prohibits discrimination against any employee because of the exercise of any rights afforded by the Act and that Section 11(c) applies to the activities undertaken pursuant to this Agreement. Such activities include reasonable requests to visit the medical facilities (as well as actual visits to such facilities), being diagnosed as having a form of CTD, and undergoing medical treatment for a diagnosed form of CTD. This language does not in any way create any duty or obligation on the part of Morrell beyond those duties or obligations that may already exist under other applicable federal or state discrimination laws for regulations.

32. Compromise of a Disputed Claim. It is understood and agreed by the parties that this Settlement Agreement constitutes a compromise of a disputed claim. Morrell specifically denies any and all allegations that it violated the Act. Nothing in this Agreement, including the Agreement itself, its execution, as well as any Final Order, is an admission or evidence, nor is it to be construed as an admission or treated as evidence, of any fact or of any violation of the Act by Morrell other than in a proceeding brought by the Secretary under the Act. In particular, nothing in this Agreement is to be construed as an admission by Morrell that a specific employee's CTD, is work-related. For purposes of proceedings brought by the Secretary under the Act, the parties agree to treat the Citation in OSHRC Docket No. 88-2522, as an uncontested citation. This Agreement is being entered into solely to avoid further litigation and expense to the parties.

33. Term of Agreement. This Agreement shall be in effect for a period of four years from the date of the Commission's Final Order in these matters. The Agreement will remain in effect thereafter unless and until either Morrell or OSHA gives the other party sixty days notice that the Agreement is cancelled.


Respectfully submitted,

JOHN MORRELL & CO., SIOUX                                              SECRETARY OF LABOR, UNITED
FALLS PLANT                                                                          STATES DEPARTMENT OF LABOR
By:                                                                                              By:
                                                                                                  Alan C. McMillan
                                                                                                  Deputy OSHA Administrator

Robert C. Gombar
Janet L. Miller

JONES, DAY, REAVIS & POGUE

Counsel for Respondent

Solicitor of Labor

Regional Solicitor

Attorney
Counsel for Complainant

Attorney
Counsel for Complainant

AUTHORIZED EMPLOYEE REPRESENTATIVE UFCW
By:
James R. Lyons, President
Local 304A
United Food & Commercial Workers Union, AFL-CIO, CLC

Nicholas W. Clark, Esq.
UNITED FOOD AND COMMERCIAL WORKERS,
INTERNATIONAL UNION, AFL-CIO
Counsel for Authorized Employee Representative

ATTACHME NTA
BEEF FAB
Clean plate bones
BEEF KILL
Split back
Chine saw operators Pregut
Extension meat workers Backer
Aitch boner Rod weasand
Hang rounds Shackler
Loin saw operator
Hind saw operator BEEF BY
Jet net chuck Paunch opener
Clean brisket bone Chisel heads
Short rib bones
Drop gooseneck BEEF COOLER
Trim and pull flanks Trim beef
Trim strips
Bone plates PORK CUT
Trim bottom butts Label vac pac
Trim chucks wipe vac pac
Bone skirts Feed vac pac
Bone steak tails Cut of hind foot
Hog drop
HOG KILL Scale, ice and loin close
Neck scrubber
Open hogs HAM BONE
Skin foreheads Roll out bone-in shank
Stun hogs Remove rags button gland
Aphis helper (final rail) Grade honey ham
Drop bungs Remove finger and butt
Stick hogs
Pinch toes GREEN GRADE
Neck trimmer Belly grader
Put in spreader hook
Aphis helper (trimmer) CANNING
Aphis helper (hog insp., Lids on mold
Spring molds
PORK TRIM
Save loaf wrapper CURING
Save lean in fat Wash vats
High bench inspector
Make box and inspect trim SMOKE MEAT WASH
caging hams
SAUSAGE COOLER
Cut rotomatic operator SMOKE MEAT PAC
902 line operator Bagger
Box pre pac
Rotomatic operator
Semi-rigid operator
Pack weiners
Maraflex operator
Peel (cited as "pull") weiners


ATTACHMENT B

1. "Cumulative trauma disorder" is a term that does not indicate a particular medical entity because it is not characterized by a specific set of clinical, laboratory or pathological findings. The term, however, has been used to group a collection of symptoms of the upper extremities considered to be caused or aggravated by certain activities, some of which may be work-related.

The focus of the medical management program for purposes of this Agreement will be those medical disorders of the upper extremities defined by specific criteria and associated with certain work activities (such as repetitive motion) ("CTD"). Examples of these types of disorders include tenosynovitis, tendonitis, synovitis, carpal tunnel syndrome, cubital tunnel syndrome, stenosing tenosynovitis of the fingers and epicondylitis.

The goal of the medical management program developed by the Medical Consultant is the diagnosis, prevention (including early detection) and appropriate treatment (including use of conservative modalities) of the medical conditions covered by this Attachment.

2. Current employees will be surveyed to establish a baseline for measurement of frequency of symptoms in the upper extremities.

a. The Medical Consultant will develop a questionnaire directed at measuring frequency of symptoms in the upper extremities among those employees currently holding Cited and Non-Cited Jobs.

b. The questionnaire will be administered by the first aid staff to all such employees. The questionnaire will be drafted within 30 days after the Commission's Final Order in this matter and will be administered to such employees within six months thereafter. The questionnaire will be readministered annually subject to reevaluation by the Medical Consultant.

C. Using the questionnaires, symptoms of diagnoses associated with CTD for each job category will be tabulated. This tabulation will be made available to the Union and to OSHA. The questionnaires will be made available for use of specifically designated OSHA personnel only pursuant to a properly drawn medical records access order, which will not be opposed by Morrell.

3. The procedures that will be followed for new employees who are to hold a Cited or Non- Cited job are:

a. All such new employees currently are given a physical examination. The physical examination will be expanded to include examinations or tests of the upper extremities, as recommended by the Medical Consultant, to complete the baseline information for each employee.

b. All such new employees will be seen in Morrell's first-aid facility by a nurse during the first, third and sixth weeks of their employment. The nurse will review any new symptoms such employee may be experiencing.

c. Such new employees exhibiting symptoms or physical signs during the time periods described in subsection b. of this paragraph will be integrated into the medical management program for current employees described in paragraph 4 below.

4. To the extent not already in place, (and except as to the protocols to be developed as discussed in Paragraph 5 of this Attachment B) the medical management program for current employees holding Cited or Non-Cited jobs, which will be implemented within 30 days after the Commission's Final Order in this matter, will be as follows:

a. Morrell maintains a first-aid facility staffed with one or more nurses to which each employee is to report his/her symptoms related to the upper extremities.

b. When such employee reports his/her new symptoms, the first aid nurse will conduct a screening examination:

(1) An interim history will be taken.

(2) A directed physical examination (including inspection, palpation and range of motion) will be conducted.

c. If the directed physical examination reveals physical signs of an upper extremity disorder, the employee will be referred to an authorized treating physician. If there are no physical signs, the nurse will follow the protocols to be established by the Medical Consultant as described in Paragraph 5 of this Attachment

B. Unless and until superseded by such protocols the following will apply:

(1) For initial symptoms consistent with muscle and/or tendon disorders and/or nerve entrapment, therapy such as ice/massage and/or contrast soaks and/or wrapping may be used.

(2) Morrell's nurses have never used, and will not use, parafin for employees with symptoms of carpal tunnel syndrome or tendon-related disorders.

(3) Morrell's nurses will not use daytime splints.

d. Reevaluation procedures.

(1) Morrell will institute a procedure for reevaluating the symptomatic employee within 3 working days except that the time frames set forth in the protocols developed or revised by the Medical Consultant pursuant to Paragraph 5 of this Attachment B shall supersede the 3 working days set forth in this subsection.

(a) If the employee's symptoms are better, the findings will be recorded.

(b) If the employee's symptoms remain the same or are worse, the employee will be referred to an authorized treating physician.

(1) When the particular employee is returned to work by the authorized treating physician, existing or newly created Production Jobs at the Sioux Falls Plant will be evaluated to the extent necessary to determine what job(s) is appropriate for the particular employee who has the medical restriction.

(a) The ergonomic analysis conducted pursuant to the ergonomic program described in this Agreement will be available and will be used, among other things, in determining to what Production Job such employee is to be assigned. The intent of the reassignment is to minimize the risk that the employee's condition will be exacerbated and to eliminate the risk, if possible.

(b) If a job has no ergonomic analysis available, the job will be analyzed for ergonomic stressors using the factors described in Paragraph 17(b)(1) of the Agreement as part of the job assignment determination for such employee.

(c) The medical personnel, in consultation with other appropriate management personnel, will determine to which job the employee will be assigned upon return to work.

(2) Morrell will institute a procedure for reevaluating, each three working days, those employees who are returned to work under this program by the authorized treating physician and are assigned to a job. The reevaluation will continue until such symptoms subside and will include a review of medical restrictions, if any, for such employee's upper extremity disorder. As set forth in Paragraph 5, protocols developed (or subsequently revised) by the Medical Consultant are to supersede the procedures (including the time frames) outlined in this Paragraph.

5. The Medical Consultant, who may be assisted by other medical personnel he/she deems appropriate, will develop protocols (and revise them) as are needed to address work-related upper extremity disorders or may modify the program as deemed feasible and useful. The protocols, which will be consistent with, and not less rigorous than, the program outlined this Attachment B, will include specific diagnostic criteria and outline medical treatment, if any, to be given at Morrell's first aid facility for the specific disorder. The protocols will address such areas as:

a. Type of medical examination to be conducted (e.g. taking of history, type of physical examination).

b. Therapy options.

c. Reevaluation of employee (e.g. time for reevaluation, actions to be taken in reevaluating the employee, reevaluation after return to work).

6. Under the direction of the Medical Consultant, the nurses employed by Morrell will receive training to implement the procedures outlined in this Attachment B, including implementation of any subsequent protocals developed by the Medical Consultant.

7. The procedures that will be followed when an employee has had surgery for an upper extremity disorder are as follows:

a. The employee will not return to work until the incision has healed (i.e., the sutures have been removed and no infection is seen).

(1) During this period, the authorized treating physician will refer the employee to, or determine for the employee, a therapy (occupational or physical therapy)/work hardening program in Sioux Falls which the employee must attend as ordered.

b. Once the authorized treating physician determines that the incision has healed, s/he then is to determine whether the employee, in his/her opinion, has adequate protective sensitivity and motion.

(1) If the employee does not have adequate protective sensitivity or motion, s/he is to continue with the therapy/work hardening program until the authorized treating physician determines that s/he does have adequate protective sensitivity and motion.

(2) If the authorized treating physician determines that the employee has adequate protective sensitivity and motion, the employee may return to work as described below.

c. The authorized treating physician who releases the employee to return to work will describe those restrictions, if any, applicable to that employee. The employee will progress through a work restriction program at Morrell with medical follow-up. The authorized treating physician, in conjunction with the therapist, will evaluate the progress of the employee until s/he is released to unrestricted duty.

(1) When the particular employee is released to return to work, Cited and/or Non-Cited Jobs at the Sioux Falls Plant will be evaluated to the extent necessary to determine what job(s) is appropriate for the particular employee who has the medical restriction.

d. This procedure is tentative and subject to further development or amendment as the program progresses. The procedure will be evaluated yearly by the Medical Consultant (during the period of retention set forth in Paragraph 21), in conjunction with other medical personnel to determine whether it needs revision (e.g., taking into consideration medical advances).

e. The parties agree that Morrell shall follow this procedure even if the employee's own surgeon or doctor permits the employee to return to work or to his/her previous job sooner than the periods required by this procedure.

f. An appropriate form setting forth this procedure (or later amendments) will be made available to each employee who undergoes surgery for such upper extremity disorder addressed in this Attachment.

g. The procedures set forth in this Paragraph 7 will be implemented within 180 days after the Commission's Final Order in this matter.

8. The term "authorized treating physician" used in this Attachment B refers only to those physicians who are designated by Morrell and who will be trained by the Medical Consultant. If the employee chooses his or her own physician in accordance with applicable state laws, Morrell will give the employee this protocol (or, if revised, the revised protocol) and instruct the employee to give the protocol to his or her chosen physician. Morrell cannot designate physicians or control their treatment under certain applicable state laws.

 

 

 


SECRETARY OF LABOR,

Complainant,

v.

JOHN MORRELL & COMPANY,

Respondent,

UNITED FOOD & COMMERCIAL WORKERS,
Local 304A, AFL-CIO,

Authorized Employee
Representative.

OSHRC DOCKET NO. 87-0635

APPEARANCES:
For the Complainant:
Robert S. Milgrim, Esq. Office of the Solicitor U.S. Department of Labor Kansas City, Missouri
For the Respondent: Robert E. Mann, Esq.
Seyfarth, Shaw, Fairweather & Geraldson Chicago, Illinois
For the Authorized Employee Representative: Nicholas W. Clark, Esq.
Assistant General Counsel
United Food & Commercial Workers Union Washington, D.C.

DECISION AND ORDER

Cronin, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereafter called the "Act").

Following an inspection of the John Morrell & Company plant at Sioux Falls, South Dakota, that commenced on September 18, 1986, the Secretary of Labor issued Citation No. 5 and Citation No. 6 to respondent Morrell, charging willful and other than serious violations of 29 C.F.R. 1904.2(a) (the record-keeping standard).[[1/]] The Secretary proposed a total penalty of $690,000 or $10,000 for each of the 69 alleged willful violations under Citation No. 5. No penalties were proposed for the alleged other than serious violations under Citation No. 6. Respondent contested the alleged violations under Citation Nos. 5 and 6, the designation of "Willful" under Citation No. 5, and the proposed penalties for Citation No. 5.

Following a hearing at Sioux Falls, South Dakota, the parties filed comprehensive briefs, proposed findings of fact, conclusions of law, and reply briefs. This case now is ready for decision.

Issues

1. Whether Citations 5 and 6 are barred by the Act's Statute of Limitations at Section 9(c), 29 U.S.C. 658(c)?

2. Whether the record establishes by a preponderance of the evidence the violations of 29 C.F.R. 1904.2(a) alleged under Citation 5.

3. Whether the alleged violations under Citation No. 5 are properly designated or characterized as "Willful"?

4. What, if any, penalties are appropriate?

STATUTE OF LIMITATIONS ISSUE

In its Answer to the Secretary's Complaint, Morrell raises the affirmative defense that Citations 5 and 6 issued in this case are barred by the statute of limitations prescribed in Section 9(c) of the Act. At the close of the Secretary's case, Morrell also moved to dismiss the case on the ground that the citations were not issued within the six-month period specified by Section 9(c) of the Act (Tr. 503-508). Decision on this motion was reserved (Tr. 513).

Section 9(c) of the Act, 29 U.S.C. 658(c), provides:

"No citation may be issued under this section after the expiration of six months following the occurrence of any violation."

The Commission invokes the so-called "discovery rule" to determine when the Act's statute of limitations period begins to run on violations of the Act. According to the Commission, the statute of limitations does not begin to run on a discrete violation until OSHA "discovers or reasonably should have discovered a violation." Sun Ship, Inc., 12 BNA OSHC 1185 (No. 80-3192, 1985). The Commission applies this identical discovery standard with respect to continuing violations. See Kaspar Wire Works, Inc., 13 BNA OSHC 1261 (No. 85-1060, 1988).

The burden of establishing the bar of Section 9(c) rests on the respondent. However, once the respondent raises the defense and a citation on its face shows that a violation is time barred by Section 9(c), it is incumbent on the Secretary of Labor, if she is to avoid the bar, to demonstrate that the citation at issue was issued within the six- month period of the statute of limitations.

The Secretary first contends in her brief that OSHA began the detailed investigation of Morrell's recordkeeping procedures on October 24, 1986, and then concedes that the six-month limitations period expired on "April 24, 1987." Because the citation was issued on April 23, 1987, the Secretary claims that the citation was "clearly" issued within six months of the inspection.

The Secretary, however, also makes a number of other "alternative" arguments to avoid the bar of the statute of limitations. The Secretary extensively argues that the alleged reporting violations in this case "continued" into the limitations period. In making this argument, the Secretary appears to claim that the statute of limitations on continuing recordkeeping violations does not begin to run until the reporting violations are correctly recorded or until the Secretary acquires actual knowledge of a failure to correctly record. This also was the Secretary's position in Yelvington Welding Service, 6 BNA OSHC 2013, (No. 15948, 1978). As this Judge understands the Secretary's contention in this regard, the statute of limitations on these violations did not begin to run until the detailed recordkeeping inspection begun on October 24, 1986, actually discovered the specific violations. The record, however, does not indicate when the Secretary actually learned of the cited alleged violations.

Finally, the Secretary also cites the Commission decision in Yelvington Welding Service, supra, for the propositions that Section 9(c) is subject to equitable tolling principles and that this limitations period does not commence to run until the Secretary knows or reasonably should have known of violations.

According to the Secretary, the Secretary did not know, or have reason to know, of the violations in this case until after October 23, 1986.

The authorized representative's brief argues both that the statute of limitations did not begin to run until October 24, 1986, and that Morrell's affirmative acts of fraudulent concealment served to toll the statute of limitations until October 24, 1986.

On the other hand, Morrell claims that the record establishes that the Secretary discovered or reasonably should have discovered the alleged violations long before the 1986 inspection and, therefore, the citations were issued after expiration of the Section 9(c) six-month period.

When did the statute of limitations prescribed by Section 9(c) begin to run on the alleged violations in Citations 5 and 6 issued on April 23, 1987?

According to the citations, the inspection commenced on September 17, 1986, and concluded on January 28, 1987. September 17, 1986, however, is the date OSHA applied for a search warrant to inspect Morrell's Sioux Falls plant. The warrant was sought in response to a complaint made by the President of Local 304A, United Food and Commercial Workers Union and received by OSHA on August 27, 1986. This complaint contained alleged safety and health items and instances of alleged "recordkeeping errors." In the application for the warrant, OSHA's Compliance Officer, Roger L. Hildremyr, declared that based on his evaluation of the complaint, "there are reasonable grounds to believe," among other things, that violations of 1904.2(a) existed at Morrell's plant -- "OSHA 200 logs not being properly maintained." Although no warrant was issued, the inspection began on the next day, September 18, 1986, with the apparent consent of Morrell. The OSHA 200 logs for 1984, 1985, and 1986, were examined during October and parts of November 1986 (Tr. 41). According to Mr. Hildremyr's testimony, a "majority" of the cases entered on the 1985 OSHA 200 log had been investigated by the week of October 6, 1986, and he had concluded that there were violations with respect to Morrell's method of recording restricted work activity (Tr. 42-45). His written narrative of the investigation states that he had completed the investigation of 90 percent of the entries on the 1985 OSHA 200 logs by October 6 (Tr. 42-43).

Morrell's OSHA 200 logs also have been previously examined by OSHA. In August of 1980, a citation was issued alleging, among other things, Morrell's failure to record the number of lost work days on the OSHA 200 log (Tr. 130-131; Ex. C-6). That citation was not contested and became a final order of this Commission. Subsequently, Morrell submitted an abatement letter with respect to that citation which included an August 7, 1980 Morrell memorandum entitled "'Guidelines for Determining Recordability" (Tr. 135-136; Ex. C-7). These guidelines appear consistent with OSHA's interpretation of some of its recording requirements.

Mr. Charles Edwards, a former Compliance Officer with OSHA, testified that he conducted an inspection of Morrell's workplace on June 27, 1984 (Tr. 77). Mr. Edwards stated that during his walkaround he spoke to employees who complained of being brought back to work early following accidents. The employees told him that they believed their names were never entered on the OSHA 200 logs (Tr. 78-79, 92). Mr. Edwards testified that he was unable to locate the names of the six employees involved on the logs (Tr. 78-79, 92-95). At that time, he reviewed all of the 1983 OSHA 200 logs dating from September 1983 and all of the OSHA 1984 logs up to the date of his inspection (June 27, 1984) (Tr. 94, 97).

Following his inspection, he met with Mr. Gary E. Junso, the Assistant General Manager and Assistant Vice President of Morrell, and Mr. Larry Anderson, Morrell's Director of Personnel and Labor Relations, to discuss the recording errors. Mr. Junso told Mr. Edwards that it was customary to bring injured workers back to work and assign them work other than their regular jobs.

If the employees had not lost any work, the restricted work was not recorded (Tr. 84-85). At that point in time, OSHA was on notice that Morrell had not been recording restricted work activity in accordance with OSHA's long standing interpretation of 1904.2(a) and the recordkeeping instructions on OSHA Form 200.

Mr. Edwards testified that he discussed the OSHA recording requirements at that meeting, specifically mentioning that an injury was recordable where an employee was brought back and put into a position different from his original job (Tr. 82-83). Mr. Edwards understood from statements made that Morrell would add the missing entries that had been discovered and that Morrell also would "comply in the future" (Tr. 85-86). Mr. Junso testified that the six missing entries were corrected following the June meeting (Tr. 587-588).

Mr. Edwards testified that because the discovered six recording violations were outside the agreed scope of the inspection he did not recommend the issuance of a citation.

In August of 1984, Mr. Edwards returned to Morrell with a warrant which also authorized him to examine records "required to be maintained by the Act and regulations (Tr. 98; Ex. R-4)." There is no indication in the record as to what records, if any, Mr. Edwards examined on that occasion. The August 1984 citation to Morrell, however, did not contain any alleged recordkeeping violations. (Tr. 151).

After a second closing conference with Morrell on September 4, 1984, he reviewed his inspection report of the June 1984 inspection, dated July 9, 1984, with his Area Director, Bruce Beelman. Mr. Edwards in his July report had recommended a follow-up inspection because "This plant is manipulating the L.W.D.I. by the way they handle their injuries (Tr. 90-91,103; Ex. R-3)." Mr. Beelman recalls reading the narrative on Mr. Edwards' inspection but does not recall the statement referring to manipulation of the L.W.D.I. (Lost Work Day Injury Rate) or discussing the statement with Mr. Edwards (Tr. 151-152). Mr. Beelman signed the report as "Reviewer" on September 13, 1984 (Ex. R-3).

In April 1985, OSHA Compliance Officer Charles Bundy reviewed Morrell's OSHA 200 logs on the instructions of Mr. Beelman, OSHA Area Director, "to look at those records and take whatever action was necessary to try and determine the accuracy of those records." After reviewing Mr. Bundy's report on May 3, 1985, and questioning him, Mr. Beelman concluded that Mr. Bundy had not conducted the April records review in accordance with his instructions and OSHA's specific procedures. He had instructed Mr. Bundy to make a closer evaluation of the records including interviews with employees, to determine the accuracy of the records. (Deposition of Mr. Beelman, pages 74-75.) In his report, Mr. Bundy had reported a low L.W.D.I. rate of 1.4 and it was Mr. Beelman's opinion that 1.4 was a "very low rate" considering the total number of injuries recorded by Morrell. It was Mr. Beelman's testimony that those circumstances should create a suspicion that something was wrong with the logs and would give cause to any compliance officer "to pursue it further (Tr. 198-200)." Mr. Beelman's suspicion in this regard, however, did not lead to any further action by OSHA.

In September 1985, Local 304A went out on strike (Tr. 596). About that time, the union filed a complaint with OSHA alleging, among other items, that Morrell was improperly recording restricted work activity (Tr. 123-124). When the union reached a contract agreement with Morrell in November 1985, however, the complaint was withdrawn without being acted upon by OSHA (Tr. 126-128, 183).

Prior to the September 18, 1986 inspection, OSHA did not actually "discover" any of the specific instances cited in the 1987 citations. But obviously, at the time the warrant was applied for on September 17th, OSHA had actual knowledge of facts and was on notice of facts which in the exercise of reasonable diligence would have led to actual knowledge of all of the alleged violations in this case. Based on this record, therefore, the statute of limitations commenced to run no later than September 17, 1986. Because the citations in this case were issued on April 23, 1987, more than six months after September 17, 1986, they are barred by Section 9(c) of the Act.

Both the Secretary and Authorized Employee Representative contends that the statute of limitations did not commence to run until at least October 24, 1986, when a "detailed" investigation of Morrell's injury and illness recordkeeping procedures allegedly began. The point at which the statute of limitations begins to run, however, does not necessarily coincide with when either the Secretary begins a "detailed" investigation that will lead to discovery of the violations or when the Secretary decides that a violation has been committed. Rather, the statute of limitations may begin to run when knowledge and due diligence require commencement of an investigation by the Secretary. See Sun Ship, supra. Moreover, Compliance Officer Hildremyr concluded sometime during the week of October 6, 1986, that violations of 1904.2(a) existed. On the basis of that conclusion alone, the statute of limitations would have commenced to run on the cited violations no later than October 10, 1986, the end of the October 6th work week, and thus, would have expired before April 23, 1986.

Moreover, the Secretary failed to demonstrate, and there is nothing in this record to indicate, that the Secretary with due diligence could not have issued the citations within the six month period commencing on September 17, 1986, or within the six month period commencing October 10, 1986. Although agreeing with the authorized employee representative that some of Morrell's actions (particularly the statements made at the meeting of June 27, 1984) may have misled or lulled OSHA into believing that Morrell was complying with OSHA's interpretation of the restricted activities recording requirements of 1904.2(a) and OSHA Form 200, there is no evidence that any actions or statements to conceal the alleged violations were undertaken by Morrell after September 17, 1986.

One final point. Although the Secretary is correct that the cited alleged violations were continuing violations, the Commission has not adopted the rule that the statute of limitations begins to run on continuing violations when the violation is corrected or when the violation is actually discovered. As previously pointed out, the Commission in Kaspar Wire Works, Inc., supra, which involved continuing violations, did not adopt the Secretary's position on actual knowledge of the violation and held that the statute of limitations with respect to continuing violations begins to run when OSHA discovers or reasonably should have discovered the violation. This Judge is constrained to follow the Kaspar decision.

To obviate the need of a remand, however, should the Commission or a reviewing court find that the citations were issued within the six-month statute of limitations of Section 9(c) and were not barred, this Judge will proceed to decide "Willful" Citation No. 5 on the merits. In lieu of evidence, the Secretary and Morrell introduced a stipulation into the record that resolves the other than serious violations of Citation No. 6. Therefore, it becomes unnecessary to decide Citation No. 6 on its merits.

Alleged Violations

Morrell concedes that lost work days must be recorded on OSHA 200 logs if due to a work related accident or illness. Mr. Anderson, Mr. Dennis Paul Studer, Safety Director until 1981, and Mr. Terry Mark Egger, Morrell's current Safety Director, all testified to the effect, however, that it was Morrell's long standing policy not to record restricted duty days under Columns 2 and 5 of the OSHA Form 200 or Columns 9 and 12 unless an employee also had lost work days as a result of an occupational injury or illness (Tr. 528, 531- 532, 563, 611, 613). Morrell further argues that even if restricted work activity is recordable without a related lost work day, it is not recordable as restricted work activity if not ordered by medical personnel.

Additionally, Morrell contends that there was no violation of 1904.2(a) because the incidents involved in the citation were recorded consistently with the Secretary's pre-1985 instructions for filling out the OSHA-200 log. According to Morrell, columns 2 and 5, and columns 9 and 12 requiring notation of restricted work activity and a tally of the number of restricted days, are subsections under the heading "Injuries [Illnesses] with Lost Workdays" (Ex. C-4). Morrell argues that the placement of these columns under the "Lost Workdays" heading and the plain meaning of the term "lost workdays" indicate that those columns need not be filled out unless an injury resulting in restricted work days is also accompanied by days away from work. Morrell contends that with respect to injuries where the employee spent no time away from work, entries should be made only under column 6, "Injuries Without Lost Workdays" (Column 13 if illnesses are involved).

Morrell claims that this interpretation was followed by the Secretary prior to and including 1985. Morrell supports this contention by pointing to a 1987 change in the footnoted explanation of column 6 on OSHA Form-200S, used to summarize data from the 200 logs (Ex. R-11, R-12). Column 6, "Without Lost Workdays" contains a footnote in the 1985 form which defines "Without Lost Workdays" as "cases (with no days lost) resulting in either: diagnosis of occupational illness, loss of consciousness, restriction of work or motion, transfer to another job, or medical treatment beyond first, aid." The footnote on the 1987 form contains the parenthetical comment "(on the day of occurrence)" following the words "restriction of work or motion."

The Secretary declares that the OSHA 200 log clearly requires that days of restricted work activity be recorded under columns 2 and 5, or Columns 9 and 12, and that OSHA has never interpreted the requirements in any other manner. The Secretary maintains that the change in Form 200S is merely a clarification of existing policy and does not denote any change in interpretation.

Examination of the OSHA 200 form supports the Secretary's position. Both the instructions under columns 2 and 9 and the instructions for filling out these columns on the reverse side of the 200 log make clear that one of these columns must be checked whenever any injury or illness "involves days away from work, or days of restricted work activity, or both." These instructions specifically apply to columns 2 and 9 of OSHA form 200 and are easily understandable. It is not reasonable, therefore, to interpret these instructions as not requiring a check under columns 2 or 9 when days of restricted work activity do not involve days away from work. Moreover, according to the caption instructions, column 6 is to be checked only if no entry is made in columns 1 or 2 and column 13 is to be checked only if no entry is made in columns 8 or 9.

The more reasonable interpretation is that for the purposes of the OSHA 200 log, days of restricted work activity also constitute "lost workdays." This position is supported by the instructions for filling out columns 4 and 11 and columns 5 and 12 on the back of the form, which divide "lost workdays" into two groups captioned - LOST WORKDAYS--DAYS AWAY FROM WORK and -LOST WORKDAYS--DAYS OF RESTRICTED WORK ACTIVITY.

Nor do the changes in the OSHA 200S form require a contrary conclusion. Given the clarity of the OSHA 200 log itself, there is no need for an employer to rely on language contained in a separate form to interpret the OSHA 200 form. Moreover, the 1985 footnote on OSHA Form 200S is not inconsistent with the instructions on how to fill out columns 2 and 6. If an entry is made in column 2, no check is made in column 6. The obverse also is true. If restricted work activity occurs only on the day of the injury, column 6 would be checked, but not column 2.

The 1987 change pointed out by Morrell does not change, but merely clarifies those instructions. Under the definition of "Recordable Cases," of course, restricted work activity always must be recorded under columns A-F.

The Secretary withdrew the following Citation No. 5 items: (a)-7; (a)-26, (b)-1; (b)-7; (c)-3; (d)-9; (d)-13; (e)-2; (e)-4; (e)-6 (Exhibit J-1). These items of Citation No. 5, therefore, should be vacated.

With respect to the following Citation No. 5 items, Morrell stipulated that medically ordered, temporary work restrictions resulted from work related injury or illness:
(a)-2; (a)-3; (a)-4; (a)-5; (a)-8; (a)-9; (a)-10; (a)-12; (a)-15; (a)-20; (a)-21; (a)-23; (a)-24; (a)-28; (a)-30; (a)-31; (a)-32; (a)-33; (a)-35; (d)-4; (d)-5; (d)-6; (d)-7; (d)-8; (d)-10; (d)-11; (d)-12; (Exhibit J-1).

Based on the discussion above, those items are recordable in columns 2 and 5 or columns 9 and 12 without reference to lost workdays and should be affirmed.

In paragraph 6 of the Stipulation, the Secretary amended items C-1 and C-2 to other than serious violations with no proposed penalty, and Morrell withdrew its notice of contest to those items (Ex. J-1).

Morrell contests the recordability of the remaining cases cited by the Secretary on the additional grounds that in items (a)-1, 6, 11, 13, 14, 16, 17, 18, 19, 22, 25, 27, 29, 34, 36; (d)- 1, 2, 3, 14 and 15, no days of recordable restricted work activity were incurred, and that in items (b)-2, 3, 4,5,6,8,9; (e)-1, 3 and 5, there were no days away from work.

The instructions for recording days of restricted work activity in columns 5 and 12 provide:

Enter the number of workdays (consecutive or not) on which because of injury or illness:

(1) the employee was assigned to another job on a temporary basis, or

(2) the employee worked at a permanent job less than full time, or

(3) the employee worked at a permanently assigned job but could not perform all duties normally connected with it

The number of lost workdays should not include the day of injury or onset of illness or any days on which the employee would not have worked even though able to work.

The Individual Contested-Items

Item 1(a)-1. Darrel Paulin testified that on January 11, 1985, he suffered a knife cut to his right thumb during some horse-play (Tr. 294-295). Mr. Paulin stated that he received nine stitches. When he returned to work his supervisor assigned him janitorial work and other odd jobs for approximately three weeks and four days at which time he returned to his regular job trimming hams (Tr. 297-304).

Morrell argues that the restriction is unrecordable, however, because the injury was not job-related and because the restriction was not ordered by a physician. This Judge agrees that the incident was not work-related and not recordable. The fact that restricted work activity is not ordered by a physician, however, is not relevant.

Section 29 C.F.R. 1904.12(c) provides in pertinent part:

1904.12 Definitions

* * *

"(c) "Recordable occupational injuries or illnesses" are any occupational injuries or illnesses * * *" (Emphasis added). The Commission has previously given a broad interpretation of the recording obligation with respect to occupational illnesses. In General Motors Corp (Inland Division) 8 "A OSHC 2036 (No. 76-5033), the Commission held that employers must record illnesses in which the occupational environment either was a contributing factor to the illness or aggravated a pre-existing condition. Applying a similar interpretation to "occupational injuries," it is reasonable to require employers to record injuries in which the occupational environment was a contributing factor even in a situation when the occupational environment did not directly cause the injury. But the injury here was not "work-related" as that term is customarily defined. It was directly caused by the unanticipated "horseplay" behavior of a fellow employee and the work environment was not a contributing factor. Morrell, therefore, was not required to record this incident as an occupational injury.

If the Secretary wishes to broaden the definition of " occupational injuries," she needs to amend 1904.12(c) and her instructions on OSHA Form 200 to include all injuries that occur in an employer's work environment.

Item 1(a)-6. Charlotte Burkel testified that on March 20, 1985, she suffered a knife cut to her left forearm while at her regular job trimming loins (Tr. 237). She received three stitches and the clinic ordered her put on light duty (Tr. 238-239). Ms. Burkel stated that she boxed tails and ran errands for two weeks before returning to her regular job (Tr. 240).

Morrell admits it is unable to rebut Ms. Burkel's testimony (Respondent's Post-Hearing Brief p. 17). Ms. Burkel's restricted duty was recordable under Columns 2 and 5.

Item 1(a)-11. Wayne Hallem testified that on April 24, 1985, he punctured his left forearm with a knife while performing his regular job trimming loins (Tr. 317). Mr. Hallem stated that he received three stitches which prevented him from performing his work (Tr. 320-321). At his own request, Mr. Hallem was assigned a job cleaning abscesses from product for two or three days before returning to his own job (Tr. 322- 323).

Morrell argues that there was no evidence of any actual restriction of motion In Mr. Hallem's arm. But nothing in the instructions requires such a showing. Mr. Hallem's days of restricted work meet criteria (1) and (3) in the OSHA Form-200 instructions for column 5 and, therefore, entries should have been made under columns 2 and 5. See also J. R. Simplot, 13 BNA, OSHC 1552 (No. 86-0880, 1987).

Item 1(a)-13. Mr. Milo Keith Bierle testified that on May 21,1985, he sustained a cut to his right index finger while performing his regular job trimming hams (Tr.414-415). Mr. Bierle stated that he received four or five stitches and returned to work where he told his foreman that he could not trim hams and needed a one-handed job. Mr. Bierle believed that he swept floors and performed clean-up for three weeks before returning to his original job (Tr. 418-419).

The lack of a medical authorization is immaterial, and Mr. Bierle's period of restricted work should have been entered under columns 2 and 5.

Item 1(a)-14. Howard Dean Rehfeldt testified that he suffered a laceration to his left thumb on July 11, 1985, while performing his regular job skinning out the front end of sheep (Tr. 352). Mr. Rehfeldt stated that he received four or five stitches and returned to work where he was put on relief duty, trimming dirt and fat one-handed. The next four days he performed odd jobs such as making kosher tags for sheep (Tr. 355-356, 361). Mr. Rehfeldt returned to his regular job after returning from previously scheduled leave (Tr. 375).

It is clear that Mr. Rehfeldt was assigned light duties for four days due to the cut and stitches on his thumb. Those days should have been recorded as restricted work activity under columns 2 and 5.

Item 1(a)-16. Mr. David Ackerman testified that on November 22, 1985, he cut his right hand while skinning intestines (Tr. 381). Mr. Ackerman stated that after receiving nine stitches, he returned to work and was assigned a job pulling intestines from a tank for the remainder of the day, where his hands were immersed, contrary to doctor's orders (Tr. 383-385). Mr. Ackerman could not recall what job he performed the following day (Tr. 383-386).

The Secretary presented insufficient evidence that Mr. Ackerman experienced a full day of restricted activity recordable under columns 2 and 5 on OSHA Form-200.

Item 1(a)-17. Mike Hoffman testified that on December 19, 1985, he cut his right palm pulling skirts (ribs) from beef (Tr. 462-463). Mr. Hoffman initially stated that he was treated at the plant over the next two days with butterfly bandages. Mr. Hoffman testified that after returning to work he was placed on light duty trimming dirt and grease from beef and fat from clods (thick roll centers) until the third day following the injury (Tr. 467, 477-478). Medical records showed that Mr. Hoffman actually received stitches at a clinic on December 20th for the December 19 accident (Tr. 464-466, 482-483). Mr. Hoffman stated that he had received a number of cuts requiring visits to the clinic over the 13-month period surrounding the incident in question and that "you kind of lose count" (Tr. 479-481).

Mr. Hoffman's inconsistent testimony is insufficient to establish his clear recollection of the incident in question and support the Secretary's allegations.

Item 1(a)-18. Mark J. Uithoven testified that on December 24, 1985, he cut his right index finger boning beef heads (Tr. 453-454). Mr. Uithoven stated that he returned to work after receiving seven stitches, where the foreman assigned him a job packaging livers and stacking boxes. He performed that job that day and the next two before returning to his regular job (Tr. 455-458). Mr. Uithoven stated that the job was easier on his finger than holding a boning knife (Tr. 460).

It is clear that Mr. Uithoven was placed in a position other than his regular job due to his injury. Those two days of restricted work should have been recorded under columns 2 and 5.

Item 1(a)-19. Mr. Glen Ray Bergen testified that on May 21, 1985, while hoisting dead beef and dropping it onto a rail for skinning, he was hit in the eye (Tr. 424-425). Mr. Bergen stated that after having the eye swabbed out, salved and patched, he returned to work. Mr. Bergen testified that he had no depth perception with the eye patch and stated that he told his foreman that the doctor had ordered him not to operate equipment or knives. Mr. Bergen was given a job checking guts for cuts for a couple of hours (Tr. 427-428). No medical restriction was noted on the medical forms (Tr. 440).

According to the OSHA Form-200 instructions, restricted work activity is recordable under columns 2 and 5 or columns 9 and 12 only if the employee is restricted for a full day, other than the day of the onset of illness or injury. The Secretary has failed to demonstrate that Mr. Bergen experienced a full day of restricted activity.

Item 1(a)-22. Ron Christensen testified that on February 8, 1985, he suffered lower back strain while trucking and scaling, i.e. weighing and delivering product (Tr. 326). Mr. Christensen stated that he returned to work with a light duty slip and was assigned a job throwing hams from a vat onto a table with a hook. Mr. Christensen did not feel that the job was light work and performed the job only a couple of hours before asking to be returned to his regular job (Tr. 328- 33).

Mr. Christensen did not spend a full day at light duty and was able to return to his regular job. There was no recordable restricted activity under columns 2 and 5 with respect to this incident.

Item 1(a)-25. Michael Kenyon did not testify. Medical records introduced by the Secretary (Ex. C-9) do not demonstrate any recordable days of restricted activity.

Item 1(a)-27. Mr. Glen Ray Bergen stated that he suffered a back sprain in November 1985 while skinning necks (Tr. 429,445). After receiving physical therapy and a prescription for muscle relaxants, Mr. Bergen returned to work but found he could not lift the hides and asked to be moved (Tr. 429-431). Mr. Bergen testified that he was assigned to a job skinning collage (gray area) from beef for one week before returning to his regular job (Tr. 432).

It is undisputed that Mr. Bergen was assigned a temporary job for a week due to his injury. Those days are recordable as restricted work activity under columns 2 and 5.

Item 1(a)-29. Patricia Lendal did not testify. The medical records introduced by the Secretary (Ex. C-9) do not support a finding that she experienced any recordable restricted workdays.

Item 1(a)-34, 1(b)-4. Mr. Gaylord Clark testified that on January 15, 1985, he crushed his left hand in the sausage sealing machine (Tr. 387). Mr. Clark stated that he checked in with his foreman and the safety director the following day but left immediately and did not work (Tr. 390, 408-413). For the next several months he rotated between folding boxes and packing or stacking packages of weiners one- handed until a boxing job opened up (Tr. 391-395). Mr. Clark felt that within three weeks he would have been able to use both hands, but still experienced pain and did not want to return to his old job as the cold in the sausage cooler bothered him (Tr. 397-399, 402-405).

Morrell admits that Mr. Clark was transferred to another job as a result of his injury (Respondent's Post-Hearing Brief, p. 21). So long as that assignment was temporary in nature and was due to the injury it was recordable under columns 2 and 5.

Respondent introduced no evidence to dispute Mr. Clark's testimony that he had gone home and not worked the day following the accident. That day should have been recorded as a lost work day under column 4.

Item 1(a)-36. Joan Maria Ackel testified that on March 16, 1985, she suffered chemical burns to her right thigh and left wrist while cleaning the cooler floor on the wiener deck (Tr.254). Upon returning to work, Ms. Ackel was "bumped" from her regular job due to a departmental shutdown (Tr. 256-257). Ms. Ackel moved to a job washing tripe, but was unable to perform this job as it required her getting her bandages wet. The safety director at Morrell then found her a job labeling bacon cartons for two weeks until she was called back to her regular job (Tr. 257-259). Ms. Ackel testified that she could have done her old job of packaging weiners with her bandages (Tr. 264).

Ms. Ackel was not removed from her permanent job because of her injury, but because of a departmental shutdown. Since washing tripe was not a permanent position, her reassignment from that position due to her injury was not recordable under column 5.

Item 1(b)-2 Connie Uithoven testified that on November 23, 1985, she suffered a knife puncture to her right middle finger while performing her regular job of boning hams (Tr. 278). The following day Ms. Uithoven was hospitalized for an infected hand. Ms. Uithoven stated that she remained in the hospital for five to seven days and did not return to work for an additional week. (Tr. 281-282).

Mr. Egger admitted that Ms. Uithoven's lost work days should have been recorded under column 4 (Tr. 615).

Item 1(b)-3. Kevin L. Huemoeller did not testify. The medical records introduced by the Secretary do not demonstrate that the employee suffered any lost work days.

Item 1(b)-5. Mr. G. O'Brien did not testify. At trial, Morrell stipulated that "there was apparently one lost work day associated with this case . . . not indicated on the logs" (Tr. 211). A lost work day should have been entered on the log.

Item 1(b)-6. Perry Steilow testified that on May 14, 1985, he suffered lower back strain while performing his regular job trucking bones (Tr. 244). Mr. Steilow testified that he punched in daily for the next seven days, went to the clinic for treatment and went home (Tr. 246-247). At the end of that time Mr. Steilow was permanently assigned a different job on the meat cutting line (Tr. 248).

Morrell introduced no evidence to rebut Mr. Steilow's testimony. The days Mr. Steilow spent in therapy rather than at work were recordable as lost work days under column 4.

Item 1(b)-8. William Zafft testified that on January 22, 1985, he strained his left knee while drilling holes for electrical conduits (Tr. 265). The pain from that injury continued and Mr. Zafft consulted his own physician. Approximately two months later he had surgery for torn cartilage in the knee (Tr. 267-270). He further stated that he was off work for two weeks, then returned with a doctor's slip restricting him to light duty and spent the next two weeks in the electrical shop doing bench work (Tr. 270-274).

Mr. Egger stated that the failure to record the lost weeks of work was probably due to an oversight resulting from the delay between the injury and the surgery (Tr. 617). That time should have been recorded as lost work days under column 4.

Item 1(b)-9. Fred Devany testified that on December 19, 1985, he injured his knee while at work and was put on crutches when he reported to first aid the next day (Tr. 230). Mr. Devany stated that he did not go into work that day but on the following day he reported to the clinic and was given work pasting labels on can lids for approximately two weeks (Tr. 232).

Mr. Devaney did not work the day he reported to the clinic, the day following the injury. Thus, that day is reportable as lost work time under column 4.

Item 1(d)-1. Forrest O'Neal testified that on January 3, 1985, he was kicked by a stunned beef while heading (i.e. bleeding and skinning) cattle, and developed "tennis elbow" (Tr. 306). Mr. O'Neal stated that his arm was strapped and he was issued a light duty slip by the first aid clinic. For the next two weeks he checked hides for knife cuts one-handed (Tr. 308-310. Mr. O'Neal then returned to his regular job (Tr. 311).

It is undisputed that Mr. O'Neal was reassigned due to the January 3 incident and was unable to perform all of the duties of his permanent job. That time is recordable as restricted work activity on the OSHA Form-200.

Item 1(d)-2. Dale Eugene Nygaard testified that on January 11, 1985, he developed tendonitis in his left thumb from performing his regular job stripping loins (Tr. 365-367). Mr. Nygaard stated that within a few days his foreman put him on a Cryvac line strapping boxes of loins after Dr. Tam ordered him placed on light duty (Tr. 368). In two days Mr. Nygaard returned to his job though his thumb still bothered him (Tr. 370-371). Mr. Nygaard testified that he was qualified to do many jobs on the cutting floor besides stripping loins and that he was often assigned elsewhere, including the Cryvac strapping line (Tr. 372-376).

Mr. Nygaard stated that he was moved from stripping loins and assigned to the Cryvac line because of his injury. Those days are recordable as restricted work activity under column 12 despite the fact that he was qualified for or had been assigned to the strapping job in the past. He was unable to perform all the duties of his permanent job.

Items 1(d)-3, (e)-1. Rene Swanson testified that on January 23, 1985, she saw a company doctor for pain in her right wrist and a locking of her right ring finger she experienced while operating a wizard knife. Therapy, bracing and medication proved ineffective and on May 5, 1985, Ms. Swanson had carpal tunnel release surgery on her wrist (Tr. 488-492). Ms. Swanson stated that she returned to work three days after her surgery with her arm in a cast and was assigned to light duty jobs, separating meat and fat one-handed and standing guard duty for the next five days (Tr. 495-498). Mr. Egger admitted that Ms. Swanson's missed workdays appeared to be related to the earlier injury. He assumed that they were not recorded under column 11 due to an oversight (Tr. 619). Ms. Swanson's restricted duty also was recordable under column 12.

Item 1(d)-14, (e)-5. Tod Juhnke testified that on May 12, 1985, he reported problems he had begun to have in his right wrist as a result of his work with a "wizard" knife (Tr. 337-339). The problem was diagnosed as a ganglion cyst, but bracing and medication were ineffective and on August 23, 1985, Mr. Juhnke had carpal tunnel release surgery (Tr. 337- 341). He called in sick the next work day, Saturday. When he returned to work Monday his right arm was in a cast up to the elbow (Tr. 342-343). Mr. Juhnke testified that he did no work from that date until he went out on strike the next week, but punched in daily and walked around trying to "look busy" (Tr. 344-345). After the strike ended he went back to work on the wizard knife (Tr. 345).

Morrell presents no evidence to rebut Mr. Juhnke's testimony regarding a lost work day associated with carpal tunnel syndrome. Morrell admits that upon his return Mr. Juhnke was not put back on his regular job (Respondent's Post-Hearing Brief, p. 23). Morrell maintains that no evidence connects the surgery with the May 12, 1985 cyst.

Mr. Juhnke's complaint and treatment were continuous from the May 12 incident up until his surgery and reasonably may be assumed to be related and culminated in that surgery. The lost work time and restricted work activity resulting from the surgery were reportable under columns 9, 11, and 12.

Item 1(d)-15. Doug Clark testified that on August 1, 1985, while performing his regular job of facing and pelting sheep, he developed a cyst on his right palm.

Some weeks later, after having the cyst surgically removed, he returned to work (Tr. 217-220). Mr. Clark stated that he had four stitches in his palm and could not do his regular job (Tr. 227-228). At his request he was put on light duty, putting trolleys under the magazine one-handed for five to ten days (Tr. 220-224).

Mr. Clark's inability to perform his regular job was due to his illness and was recordable on OSHA Form-200 under columns 9 and 12.

Item 1(e)-3. John Lange did not testify. Medical records supplied by the Secretary (Ex. C-9) do not demonstrate that the employee suffered any lost work time.

Willful Issue

The Secretary alleges that Morrell willfully committed all of the alleged violations in Citation No. 5. With respect to the violations alleged in her Citation No. 6, however, the Secretary characterizes them as "other than serious" even though they are similar to the Citation No. 5 violations.

The record evidence establishes that the violations with respect to recording restricted work activity committed by Morrell after the meeting of June 27, 1984, should be characterized as willful. At that meeting, Morrell's management in the person of Mr. Junso was put on notice by Compliance Officer Edwards of the Secretary's interpretation of the standard's requirements concerning the recording of restricted work activity and the instructions on OSHA Form 200. Morrell's representatives related to the Compliance Officer Morrell's practice of not recording restricted work activity unless the employee also had days away from work (Tr. 84-85). Using examples, the Compliance Officer explained that this was not in compliance. According to his explanation, if an employee had been put into a different position because of his injury, the event was recordable. He told Morrell representatives how restricted work activities were to be recorded on the OSHA Form 200 (Tr. 81-84). After he completed his "informational program" concerning the OSHA Form 200, he was told by the Morrell representatives that they would start to make the necessary corrections in their OSHA 200's to meet the requirements of the Act (Tr. 85-86). The Compliance Officer's testimony in this regard was corroborated by the union representatives present at the meeting (Tr. 107-108,121). This testimony stands unrebutted. Mr. Junso has little recollection of what transpired at the June meeting and no recollection relating to whether recording of restricted work activity was even discussed (Tr. 587-588). On this record, the testimony of the Compliance Officer and the union representatives is credited.

Despite awareness of the "Secretary's interpretation, Morrell continued its prior practice of recording restricted work activity only if lost work days were involved. Perhaps Morrell believed that its interpretation of the standard's requirements concerning recording restricted work activity would prevail at a hearing. By continuing its prior practice, however, Morrell assumed the risk that this defense would fail and the risk that its deliberate course of action would be characterized as willful. That defense has failed, and Morrell's failures to record restricted work activity in compliance with the OSHA 200 instructions and the Secretary's interpretation of those instructions should be characterized as willful violations.

Citing the decision in Mel Jarvis Construction Co., 10 BNA, OSHC 1052, among others, Morrell contends that a violation is not willful if the employer has a good faith opinion that the violative conditions conform to the cited standard. The Commission decision in Mel Jarvis, which affirmed a decision of this Judge, however, is clearly distinguishable. Morrell, unlike Mel Jarvis, was aware of the Secretary's interpretation of the standard's requirements. Moreover, there is nothing in the OSHA 200 instructions to support a finding that Morrell's contrary interpretation of the instructions is reasonable and, therefore, held in good faith. Cf. RSR Corporation, 11 BNA OSHC 1163 (1983).

A different situation, however, is presented by the failures of Morrell to comply with the recordkeeping violations not related to restricted work activity. There is insufficient evidence to conclude that those failures were willful or anything more than negligent oversights on the part of Morrell.

Mr. Pfeifle's testimony establishes Morrell's awareness in early 1984 that OSHA utilized lost work days to determine whether or not to inspect employers and Morrell's obsessive concern in not allowing its lost workdays to trigger an inspection. But there is nothing to indicate that Morrell deliberately violated or was recklessly indifferent to, the other recordkeeping requirements, such as recording lost work days (Tr. 62-73).

The violations under Citation No. 5 not related to restricted work activity, therefore, should be affirmed as other than serious violations.

Penalties

The Secretary has proposed the $10,000 maximum penalty under the Act for each, separate, willful violation under Citation No. 5. No penalties, however, were proposed for the other than serious recordkeeping violations under Citation No. 6 despite their similarity to the Citation No. 5 violations, or for items C-1 and C-2 under Citation No. 5.

Assessment of individual penalties for each separate violation of a standard is not precluded by section 17 of the Act. As a matter of practice, however, the Commission has combined separate violations of the same standard, including willful violations, for the purpose of assessing penalties. See RSR Corporation. 11 BNA OSHC 1163 (Nos. 79-3813, 80-1602, 79-6392 and 79-5062, 1983). There is no reason of record to depart from this prior practice.
Ultimate authority for assessment of penalties, of course, lies with the Commission, and the Commission is not bound by the Secretary's proposed penalties. See 29 U.S.C. 666(j); United States Steel Corporation, 10 BNA OSHC 2123 (No. 77-3378, 1982). In United States Steel, Chairman Rowland declared that it is fundamentally unfair to assess multiple penalties against an employer for the same conduct. According to him, violative instances of the same standard in that case should be combined into one alleged violation and one penalty assessed. Commissioner Cleary, on the other hand, simply declared that the Commission may, when it deems it appropriate, assess a single penalty for two or more violations of a single standard. A single penalty for multiple violations of the same standard was assessed in that case.

Section 17(j) of the Act, 29 U.S.C. 661(i) provides:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

Morrell employs 3,000 persons at Sioux Falls and has a past history of violations of the Act, including one prior violation of the recordkeeping standard. (See Exhibit J-1) As previously pointed out, Morrell also lacked good faith with respect to any of the willful violations relating to restricted work activity. Although the gravity of these willful violations is not high, the maximum total penalty for these violations is appropriate in order to motivate Morrell sufficiently to deter it from any further violations of the recordkeeping standard. A total penalty of $10,000 for the affirmed willful violations in Citation No. 5 relating to recording restricted work activity is considered appropriate. A total penalty of $1,000 for the Citation No. 5 violations not related to restricted work activity also is considered appropriate.

The Secretary failed to propose any penalties for the other than serious violations alleged in Citation No. 6 or for items C-1 and C-2 of Citation No. 5. But that failure does not preclude assessing some penalty for the other non-serious violations of Citation No. 5. The Commission has consistently held that it may assess penalties higher than those proposed by the Secretary.

See Worcester Pressed Steel Co., 3 BNA OSHC 1661 (No. 4237, 1975); Pratt & Whitney Aircraft Co., 9 BNA OSHC 1653 (No. 13401, 1981). Since employers are on notice of the Commission's authority to assess higher penalties than those proposed by the Secretary, no element of unfairness is involved when penalties higher than those proposed are assessed.

It would be inappropriate not to assess some penalty for the Citation No. 5 other than serious violations of the recordkeeping standard, particularly after finding that Morrell willfully violated that standard in another respect. Accordingly, a $1,000 total penalty for the other than serious violations in Citation No. 5 is considered appropriate.

Findings of Fact

All findings of fact relevant and necessary to a determination of the contested issues have been found specially in the above decision. See Rule 52(a) of the Federal Rules of Civil Procedure.

All proposed findings of fact or conclusions of law inconsistent with this decision are denied.

Conclusions of Law

1. The issuance of Citations 5 and 6 was barred by Section 9(c) of the Act.

2. Column 2 or Column 9 of OSHA Form 200 must be checked whenever any recordable work related injury or illness results in days away from work or days of restricted work activity or both.

3. A day away from work does not include the day of injury or the day of the onset of illness. A day of restricted work activity does not include the day of injury or the day of the onset of the illness.

4. Column 5 or Column 12 of OSHA Form 200 must be checked whenever any recordable work related injury or illness results in days of restricted work activity.

5. Column 6 or Column 13 of OSHA Form 200 must be checked if an injury or illness results in restricted work activity on the day of injury or the day of the onset of the illness and there are no days away from work or days of restricted work activity.

6. Column 6 or Column 13 of OSHA Form 200 shall not be checked whenever a recordable work related injury or illness results in days away from work or days of restricted work activity.

7. The record establishes by a preponderance of the evidence that Morrell deliberately and willfully violated 1904.2(a) whenever it failed to check Column 2 and Column 5 or Column 9 and Column 12 and a recordable work related injury or illness resulted in days of restricted work activity.

8. Morrell willfully violated 1904.2(a) with respect to the following alleged violations:
1(a)-2; 1(a)-3; 1(a)-4; 1(a)-5; 1(a)-6; 1(a)-8; 1(a)-9; 1(a)-10; 1(a)-11; 1(a)-12; 1(a)-13: 1(a)-14; 1(a)-15; 1(a)-18; 1(a)-20; 1(a)-21; 1(a)-22; 1(a)23; 1(a)24;
1(a)27; 1(a)28; 1(a)-30; 1(a)-31; 1(a)-32; 1(a)-33; 1(a)-34; 1(a)-35; 1(d)-1; 1(d)-2; 1(d)-3; 1(d)-4; 1(d)-5; 1(d)-6; 1(d)-7; 1(d)-8; 1(d)-10; 1(d)-11; 1(d)-12; 1(d)1-14; 1(d)-15.

9. The record does not establish by a preponderance of the evidence that Morrell willfully violated 1904.2(a) when it failed to record days away from work.

10. Morrell's failures to properly record days away from work constitute other than serious violations of the Act.

11. Morrell committed other than serious violations of 1904.2(a) with respect to the following alleged violations under Citation No. 5:
1(b)-2; 1(b)-4; 1(b)-5; 1(b)-6; 1(b)-8; 1(b)-9; 1(c)-1; 1(c)-2; 1(e)-1; 1(e)-5.

12. Morrell did not violate 1904.2(a) with respect to the following alleged violations under Citation No. 5:
1(a)-1; 1(a)-16; 1(a)-17; 1(a)-19; 1(a)-22; 1(a)-25; 1(a)-29; 1(a)-36; 1(b)-3; 1(e)-3; 1(a)-7; 1(a)-26; 1(b)-1; 1(b)-7; 1(c)-3; 1(d)-9; 1(d)-13; 1(e)-2; 1(e)-3; 1(e)-4; 1(c)-6.

13. A maximum total penalty of $10,000 for Morrell's willful violations under Citation No. 5 is appropriate.

14. A maximum total penalty of $1,000 for Morrell's other than serious violations under Citation No. 5 (excluding 1(c)-1 and 1(c)-2) is appropriate.

ORDER

Based on the findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. Citation No. 5 and Citation No. 6, issued April 23, 1987, are VACATED.

James A. Cronin, Jr. Judge, OSHRC


APPENDIX 1

1904.2 Log and summary of occupational injuries and illnesses.

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

 

SECRETARY OF LABOR, Complainant, v. JOHN MORRELL & CO., SIOUX FALLS PLANT, and its successors, Respondent. UNITED FOOD & COMMERCIAL WORKERS, LOCAL 304A, AFL-CIO, Authorized Employee Representative.

OSHRC DOCKET NO. 88-2522

FINAL ORDER

The parties have filed a Settlement Agreement in this matter. The content of that agreement is incorporated by reference in this Order.

The Settlement Agreement is hereby approved and shall be deemed a final order of the Commission.

This order is expressly contingent upon an order approving this Settlement Agreement by the Commission in OSHRC Docket No. 871-0635 involving the same parties.

It is SO ORDERED.

Benjamin R. Loye
Judge, OSHRC
Dated: April 20, 1990

SECRETARY OF LABOR, Complainant, JOHN MORRELL & CO., SIOUX FALLS PLANT, and its successors, Respondent. UNITED FOOD & COMMERCIAL WORKERS, LOCAL 304A, AFL-CIO, Authorized Employee Representative.

OSHRC DOCKET No. 88-2522

FINAL ORDER

The parties have filed a Settlement Agreement in this matter. The content of that agreement is incorporated by reference in this Order.

The Settlement Agreement is hereby approved and shall be deemed a final order of the Commission.

This order is expressly contingent upon an order approving this Settlement Agreement by the Commission in OSHRC Docket No. 87-0635 involving the same parties.

It is SO ORDERED.

Benjamin R. Loye
Judge, OSHRC
Dated: April 20, 1990


FOOTNOTES:
[[1/]] See Appendix 1.