John Morrell & Co., Sioux Falls Plant, and its successors

Read the official release (oshrc.gov)

Plain-English summary

John Morrell, OSHA, and the workers' union settled two cases involving the company's Sioux Falls meatpacking plant. The settlement set a $990,000 penalty for the ergonomics citation and required a separate $260,000 grant to NIOSH for continued study of musculoskeletal injuries. Morrell agreed to analyze cited and non-cited production jobs, retain ergonomics and medical consultants, test and implement feasible controls, train employees, manage cumulative trauma disorders, and report progress over a multi-year period. The program covered about 871 production jobs, with implementation deadlines of three years for cited jobs and four years for non-cited jobs. Morrell also agreed to correct specified injury and illness log entries, audit recordkeeping at its Sioux Falls and Sioux City plants, and train responsible staff. The recordkeeping citation was reclassified as other than serious with no penalty, and Morrell denied wrongdoing while agreeing that the ergonomics citation would be treated as uncontested in OSHA proceedings. The Commission consolidated the dockets, approved the agreement, and incorporated its terms into the final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.2(a); the release does not identify a standard for the ergonomics citation.
• Outcome: Consolidated settlement approved with a $990,000 penalty, a $260,000 NIOSH grant, ergonomics obligations, and recordkeeping corrections.
• Key point: The settlement paired a substantial penalty with a plant-wide, multi-year program to identify and reduce ergonomic stressors and improve medical management and recordkeeping.

Full text (OSHRC public release)

Docket No. 87-0635_88-2522

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.