“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 & 88-2522ORDER The Occupational Safety and Health ReviewCommission has received the parties’ Motion for Consolidation and Settlement Agreement inthe captioned action. Docket No. 87-635 is before the Commission pursuant to Directionsfor 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 ChairmanEdwin G. Foulke, Jr.The parties’ Motion for Consolidation forpurposes 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, theMotion 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 theOccupational Safety and Health Review Commission in this matter. Therefore, the SettlementAgreement is Approved.Accordingly, the Motion to Consolidate is grantedand the Settlement Agreement is approved pursuant to a delegation of authority to theExecutive Secretary, 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979). Theterms of the Settlement Agreement are incorporated as part of this Order. The citationitems are affirmed, modified, or vacated in accordance with the terms of the SettlementAgreement.FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDated: April 27, 1990\u00a0\u00a0 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 88-2522Region VIIMOTION FOR CONSOLIDATION AND SETTLEMENTAGREEMENT The parties, JOHN MORRELL & CO., SIOUX FALLSPLANT (\”Morrell\” or \”the Company\”) and its successors; the SECRETARYOF 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 andcomplete 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\”) proceduralrule on settlement. Accordingly, the parties state as follows:A. Jurisdiction\/Amendments\/Procedural Matters1. The Commission has jurisdiction of thesematters under 29 U.S.C. ? 659(c), Section 10(c) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).2. The parties move, pursuant to the CommissionRule at 29 C.F.R. ? 2200.9, that these matters, OSHRC Docket Nos. 87-0635 and 88-2522, beconsolidated for purposes of settlement. The two matters have common parties and involvethe same overall worksite.3. The Secretary amends the Citations andproposed 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 isamended to $0.00.(b) Citation No. 1 in OSHRC Docket No. 88-2522 isamended 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 thisAgreement as a whole (hereinafter \”Citation No. 1\”). In addition to the proposedpenalty, as amended, Morrell will give a grant to the National Institute for OccupationalSafety and Health (\”NIOSH\”) in the amount of $260,000 for the continuing studyof musculoskeletal injuries by NIOSH.(c) Within thirty days of the Commission’s FinalOrders in these matters, Morrell promises to pay one half of the proposed penalty, asamended, 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 toNIOSH also set forth at Paragraph 3(b) above. The remaining one half of the proposedpenalty, as amended, shall be paid within six months of the date of the first payment toOSHA 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 ofthese proceedings up to and including the filing of this Agreement and entry of the FinalOrders in these matters.5. The parties agree that this SettlementAgreement shall become a Final Order of the Commission. Included with this Agreement is adraft order approving this settlement. The form and content of this draft order and thisAgreement have been negotiated by the parties. The parties hereby consent to the entry ofthis draft order so that the litigation of these matters may be brought to an end.6. Morrell withdraws its Notice of Contest to theCitation in OSHRC Docket No. 88-2522. This withdrawal, however, is made solely tofacilitate the settlement of this matter. It does not qualify and is not to be interpretedas being inconsistent with Paragraph 32 below.7. For purposes of service and notice, Morrellcertifies that the original Notices of Contest as well as all pleadings in OSHRC DocketNos. 87-0635 and 88-2522, including a copy of this Agreement, have been served on affectedemployees 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 cumulativetrauma disorders are occupational illnesses in the meat packing industry, as well as inother industries with similar types of jobs. The parties also recognize that methods tomaterially reduce or eliminate the ergonomic stressors related to CTD can be complex. Suchmethods may require the application of a number of different control technologies such asengineering controls to materially reduce or eliminate job-related ergonomic stressorsrelated to cumulative trauma disorders, e.g. force, position, repetition andvibration; employee and supervisory training and education; early recognition of theproblem; early and proper medical diagnosis, treatment and care follow-up; andadministrative controls such as job enlargement, rotation and rest pauses. The ergonomicprogram set forth in this Agreement is intended to materially reduce or eliminate theergonomic stressors related to the cumulative trauma disorders that may arise from theProduction Jobs, as defined below.(b) The term \”cumulative traumadisorders\” (\”CTD\”) is defined in Attachment B appended to this Agreementand includes those medical disorders of the upper extremities defined by specific criteriaand associated with certain work activities (such as repetitive motion). Examples of thesetypes 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 thatare the subject of Citation No. 1, Morrell estimates that there are approximately 700other production jobs in the beef and pork production and processing areas at its SiouxFalls Plant. In this Agreement, these approximately 871 jobs shall be referred tocollectively as \”Production Jobs\”.(d) The 171 Production Jobs that are the subjectof the Citation No. 1 shall be referred to collectively as the \”Cited Jobs\” andare addressed in this Section B of the Agreement. The approximately 700 remainingProduction Jobs shall be referred to collectively as \”Non-Cited Jobs\” and areaddressed in Section C of this Agreement.(e) The Cited Jobs shall be divided into twocategories: (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 ananalysis to determine whether those jobs expose employees to ergonomic stressors relatedto CTD (\”Attachment A Jobs\”); and (2) the remainder of the Cited Jobs are jobswhich have been identified by OSHA in Citation No. 1 as jobs that expose employees toergonomic stressors related to CTD (\”Ergonomic Stressor Jobs\”).10. Ergonomic Consultant. Morrell hasretained or employed one or more person(s) (or company) qualified by education andexperience about ergonomics (\”Ergonomic Consultant\”) and has begun a program atits Sioux Falls Plant to address ergonomic stressors related to the various types of upperextremity cumulative trauma disorders. Within thirty days of the entry of the Commission’sFinal Order in this matter, Morrell will confirm that an Ergonomic Consultant will beretained for a period of at least four years from the date of the Commission’s Final Orderin this matter. The Ergonomic Consultant will assist Morrell in performing an ergonomicanalysis of certain jobs and in developing and implementing an ergonomic program asdiscussed in this Agreement.11. Attachment A Jobs – Determining ErgonomicStressors Related to CTD. The program for analysis of the Attachment A Jobs shallproceed as follows:(a) Recognizing that the ergonomic stressors related to CTD may vary from Attachment A Jobto 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 AJobs as set forth in subsections (i) through (iv) below:(i) The incident analysis for each specific Attachment A Job will include an evaluation ofthe 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 beingstudied).(ii) The ergonomic analysis for CTD for eachspecific Attachment A Job will include an evaluation of the ergonomic stressors for thatjob including anthropometry, posture, force, tools, gloves, vibration, frequency ofaction, as well as time between actions and related considerations. The ergonomic analysisalso will include the use of survey tools such as photography (including videotape), thetaking of measurements (e.g. range of motion, etc.), and employee input (including inputfrom employees who hold the Attachment A Job being studied).(iii) The analyses described in this Paragraphare to be completed within twelve months of the date of the Commission’s Final Order inthis matter. Morrell specifically notes that the information generated by these analysesmay be proprietary and confidential, and thus, such information is subject to Paragraph 30of this Agreement.(iv) Upon completion of the analyses described inthis Paragraph, each Attachment A Job determined by Morrell, with the advice and guidanceof the Ergonomic Consultant, to present an ergonomic stressor related to CTD shall beclassified, for purposes of this Settlement Agreement, as an Ergonomic Stressor Job (asdefined in this Agreement).(b) The Attachment A Jobs that are determined tobe Ergonomic Stressor Jobs shall be subject to the provisions of this Agreement relatingto Ergonomic Stressor Jobs. Morrell will advise the Secretary and the Union how those jobsare merged in the plan or methodology for Ergonomic Stressor Jobs in the next statusreport.12. Ergonomic Stressor Jobs – Evaluating andTesting OSHA’s Recommended Abatements. With respect to the Ergonomic Stressor Jobs,Morrell, with the advice and guidance of the Ergonomic Consultant, will design andimplement an ergonomic program, which shall be in writing, to test and evaluate the OSHArecommended abatements in Citation No. 1 as follows:(a) Within six months of the date of theCommission’s Final Order in this matter, the Ergonomic Consultant (1) will review thespecific OSHA recommended abatements in Citation No. 1 for each of the Ergonomic StressorJobs; (2) will review and evaluate those ergonomic improvements Morrell has implemented orproposed as part of its ergonomic program; (3) will conduct literature and manufacturingsearches for tools, devices or other items that may reduce ergonomic stressors related toCTD; and (4) at a time and place convenient to all parties, will have a meeting withrepresentatives from Morrell, OSHA, and the Union to give OSHA an opportunity to explainits findings and recommended abatements. Morrell then will identify, in the next statusreport, those Ergonomic Stressor Jobs which have been abated and those in which theergonomic stressor identified in Citation No. 1 remains to be abated.(b) Thirty days after the time period set forthin the step described in Paragraph 12(a), Morrell will begin to evaluate and test thespecific OSHA recommended abatements for each particular Ergonomic Stressor Job asfollows:(i) Morrell will evaluate all of the OSHArecommended abatements specifically identified for a specific Ergonomic Stressor Job inCitation No. 1. Those recommended abatements specifically identified in Citation No. 1 fora specific Ergonomic Stressor Job also will be tested, if Morrell, with the advice andguidance of the Ergonomic Consultant, determines in its evaluation that a particularrecommended abatement is feasible. For those OSHA recommended abatements that Morrelldetermines are not feasible, Morrell will state the reason or reasons for itsdetermination in the status reports described in Paragraph 23 of this Agreement. If OSHAdisagrees with Morrell’s determination, OSHA and Morrell will follow the procedures setforth in Paragraph 15 of this Agreement.(ii) As part of the testing procedure, and whereappropriate, experimental work stations will be used and employee input sought andconsidered.(iii) For those OSHA recommended abatementsimplemented, Morrell, with the advice and guidance of the Ergonomic Consultant, also willdevelop a method for determining the efficacy of the OSHA recommended abatements tomaterially reduce or eliminate ergonomic stressors related to CTD.(iv) Morrell is first to begin testing of thoseOSHA recommended abatements involving engineering controls. If those engineering controlsprove not to be feasible in materially reducing or eliminating ergonomic stressors relatedto CTD, Morrell then will test feasible OSHA recommended abatements involvingadministrative controls, including the appropriate combination of one or more of jobrotation or enlargement or reduction of repetitive motion per employee per job. If Morrelltests or implements job rotation as a means of addressing ergonomic stressors, anergonomic analysis of all jobs contained in the rotation must have been completed prior toimplementation. The jobs to be within the ergonomic rotation are to show decreased and\/ordifferent physical demands. Nothing in this paragraph prohibits Morrell from testingadministrative controls prior to, or in conjunction with, testing engineering controls.13. Implementation of the OSHA RecommendedAbatements.As this ergonomic program progresses, those OSHArecommended abatements that are feasible in materially reducing or eliminating ergonomicstressors related to CTD will be implemented by Morrell. Morrell is first to beginimplementation of those feasible OSHA recommended abatements involving engineeringcontrols. If those engineering controls prove not to be feasible in materially reducing oreliminating ergonomic stressors related to CTD, Morrell then will begin to implement thosefeasible OSHA recommended abatements involving administrative controls. Although Morrellwill implement those methods as expeditiously as possible, the implementation shall becompleted within three years after the date of the Commission’s Final Order.14. Further Analysis of the Ergonomic StressorJobs. Nothing in this Agreement precludes Morrell or the Ergonomic Consultant fromconducting a further analysis of the Ergonomic Stressor Jobs or recommending, testing orevaluating other potential methods of materially reducing or eliminating ergonomic stress.If OSHA’s recommended abatements for the Ergonomic Stressor Jobs do not materially reduceor eliminate ergonomic stressors related to CTD for such jobs, Morrell will conduct suchfurther ergonomic analysis as may be necessary and test and implement feasible methods ofmaterially reducing or eliminating such ergonomic stressors related to CTD.15. Procedure for Resolving Disputes. Ifthe Secretary disagrees with Morrell’s determination of (1) whether the Attachment A Jobsare Ergonomic Stressor Jobs; (2) those Ergonomic Stressor Jobs which have been abated andthose Jobs in which the ergonomic stressor identified in Citation No. 1 remains to beabated; or (3) the feasibility of the OSHA recommended abatements for the ErgonomicStressor Jobs, she will state her points of disagreement, and the reason or reasons shedisagrees, in writing so that Morrell can review them with the Ergonomic Consultant. TheSecretary and Morrell, with input from the Union, will then engage in good faithdiscussions to resolve the disagreement. This paragraph is not intended to limit theSecretary’s right to use, as appropriate, enforcement methods provided by the Act.16. Employee Input. Employee input on ergonomic or CTD issues (including potentialmethods of materially reducing or eliminating ergonomic stress) is, and will continue tobe, considered and encouraged through the Company’s Joint Employee\/Management SafetyCommittee, through the various departmental safety meetings, and through the employeesuggestion system.C. Steps to Address Ergonomic Conditions Atthe Sioux Falls Plant Other Than Those in Citation No. 1, OSHRC Docket No. 88-252217. Ergonomic Program for Non-Cited Jobs.Morrell, with the assistance of the Ergonomic Consultant, also will evaluate theapproximately 700 Non-Cited Jobs to determine which, if any, of those jobs exposeemployees to ergonomic stressors related to CTD. The ergonomic program for the Non-CitedJobs will proceed as follows:(a) Incident Analysis. Within one yearafter the date of the Commission’s Final Order, Morrell will conduct an incident analysisof the Non-Cited Jobs. The incident analysis will include an evaluation of the informationcontained in the following sources: OSHA 200 Logs, OSHA 101 forms, employee complaints,medical records and medical surveillance data maintained by Morrell, including availabledata derived from Attachment B, and employee input.(b) Ergonomic Analysis and Testing. Thirtydays after the time period set forth in Paragraph 17(a) above, Morrell will develop a planfor the ergonomic analysis of the jobs, the evaluation of any ergonomic improvementsalready in place or proposed, the recommendation of methods to materially reduce oreliminate CTD and the testing and evaluation of those methods as follows:(1) For each specific Non-Cited Job, an ergonomicanalysis will be performed which will include an evaluation of the ergonomic stressors forthat job including anthropometry, posture, force, tools, gloves, vibration, frequency ofaction, as well as time between actions and related considerations. The ergonomic analysisalso will include the use of survey tools such as photography (including videotape), thetaking of measurements (e.g. range of motion, etc.), and employee input. Morrellspecifically notes, however, that information generated by the ergonomic analysis may beproprietary and confidential, and thus, such information is subject to Paragraph 30 ofthis Agreement.(2) For those Non-Cited Jobs for which anergonomic program is deemed necessary, Morrell will test and evaluate methods that maymaterially reduce or eliminate ergonomic stressors related to CTD. Morrell will firstbegin testing of feasible engineering controls. If such engineering controls prove not tomaterially reduce or eliminate ergonomic stressors related to CTD, feasible administrativecontrols will be tested. Such controls to be tested and evaluated will include, dependingupon the type of ergonomic stressor:(a) Engineering controls, such as re-orientationof knife or tool handles, use of adjustable fixtures or rotating cutting tables to providefor easier manipulation of meat, use of adjustable work stations or other devices (such asdelivery bins) to accommodate height and reach limitations of workers.(b) Engineering controls, such as automation, useof mechanical tools (e.g. those which aid in removing bones or separating meat frombones), use of power tools, maintenance of sharp cutting edges, use of adjustable fixturesthat allow movements to be made in ergonomically-sound postures.(c) Monitoring the whizard knives to ensure thatthey are maintained in accordance with the manufacturer’s instructions in order to avoidexcessive vibration.(d) Morrell will use its best efforts to ensurethat stored meat requiring hard cutting is not frozen.Administrative Controls(a) Administrative controls such as theappropriate combination of one or more of job rotation or enlargement or reduction ofrepetitive motion per employee per job or, if necessary, rest pauses, will be tested. IfMorrell tests or implements job rotation as a means of addressing ergonomic stressors, anergonomic analysis of all jobs contained in the rotation must have been completed prior toimplementation. The jobs to be within the ergonomic rotation are to show decreased and\/ordifferent physical demands; or,(b) For those jobs that have an ergonomicstressor 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 determineeither that such new or reassigned employee has the requisite ability to perform the jobwith proper technique or, that, notwithstanding the training, the employee does not havesuch ability. If such employee is determined to have such ability for the job, he or shewill be required to pull full count.(3) Those Non-Cited Jobs for which no ergonomicprogram is deemed necessary, if any, will be listed and the reason(s) such program is notnecessary will be stated.18. Implementation for Non-Cited Jobs. As the ergonomic program for Non-Cited Jobsprogresses, those feasible methods tested and evaluated pursuant to Paragraph 17 and foundto materially reduce or eliminate ergonomic stressors related to CTD will be implementedby Morrell. Morrell first will begin to implement those engineering controls that arefeasible. If such engineering controls prove not to materially reduce or eliminateergonomic stressors related to CTD, Morrell will begin to implement those administrativecontrols that are feasible. Morrell will implement such feasible methods of materiallyreducing 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 FinalOrder in this matter.19. Education Program. Morrell, with theadvice of the Ergonomic Consultant, will develop and implement an education program at itsSioux Falls Plant. This education program will be developed within four (4) months afterthe date of the Commission’s Final Order in this matter and will begin promptly thereafteruntil 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 theearly signs of CTD, the range of disorders (i.e., what they are), causes of thesedisorders, 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 worktaking place in the Sioux Falls Plant so that employees will be familiar with it. Theprogram also will include a portion designed to educate employees about knife maintenance,tool preparation and the postures or other activities that may create an ergonomicstressor related to CTD in their jobs. All new employees will be given such educationduring orientation. Each month, groups of those employees then holding Cited or Non-CitedJobs (with priority being given to those in Cited Jobs) will be provided such educationuntil all of the approximately 2000 such employees have been educated. All such employeeswill be provided this education within twelve months of the date of the Commission’s FinalOrder in this matter. Thereafter, each calendar year for the term of this Agreement, suchemployees will receive refresher training once each quarter as part of the regularlyscheduled departmental safety meetings. At least one such quarterly meeting a year will beat least thirty (30) minutes in length.20. Training Program. Within six monthsfrom the date of the Commission’s Final Order in this matter, Morrell, with advice of theErgonomic Consultant, will establish a training program for new and reassigned workers atMorrell’s Sioux Falls, South Dakota plant who are to begin working in Production Jobsinvolving the use of knives as follows:(a) After orientation, which includes theeducation program described in Paragraph 19, each such new or reassigned employee willreceive a demonstration of the applicable knife and equipment to be used as well asclassroom 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 individualwork duties.(b) New employees also will be familiarized withapplicable safety procedures including glove and equipment rules. The classroom trainingwill be conducted by divisional trainers who will be management personnel and who will beexcluded from production or production supervision responsibilities during the trainingperiods set forth in this Paragraph 20.(c) Following the classroom training, such new orreassigned employees shall be assigned to work with a qualified co-employee who willprovide on-the-job training. This on- the-job training will be monitored by the divisionaltrainer and the departmental supervisor at regular intervals. During this on-the-jobtraining, the divisional trainer will work with employees on the production line or, ifneeded, in additional classroom training. Each such new or reassigned employee, at his orher option, may request his\/her divisional trainer for more classroom training. Thetraining will continue until the divisional trainer and department supervisor determineeither that such new or reassigned employee has the requisite ability to perform the jobwith proper technique or, that, notwithstanding training, the employee does not have suchability. During the on-the-job training period, the co-employee shall not be expected tomeet the same production standard as other qualified employees on the same job that do nothave training responsibilities. If such new or reassigned employee is determined to havesuch ability for the job, he or she will be required to pull full count.(d) The training described above will be designedto emphasize the need to develop safe and efficient work techniques before an employee isexpected to pull full count.21. Medical Management Program.(a) Within thirty days of the Commission’s finalorder, Morrell will retain a medical consultant(s) knowledgeable about CTD to develop amedical management program for work-related CTD at the Sioux Falls Plant (\”MedicalConsultant\”). Morrell agrees to retain the Medical Consultant for its Sioux FallsPlant for at least four years from the date of the Commission’s Final Order in thismatter.(b) Attachment B, which is appended to thisAgreement and incorporated into it by reference, sets forth the basic medical managementprogram that Morrell will implement and the times by which it will be implemented.D. Sioux City, Iowa, Plant22. State of Iowa Agreement. Pursuant toan agreement with the State of Iowa, Morrell has developed an ergonomic program for itsSioux 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, asnecessary, as part of its Sioux City ergonomic program. It is Morrell’s intent to meetwith the State of Iowa to execute an agreement similar to this Agreement. The State ofIowa is encouraged to honor the terms of this Agreement.E. Reports Regarding Ergonomic and MedicalManagement Programs23. Morrell will complete status reports on theprograms at the Sioux Falls Plant set forth in this Agreement quarterly for two years andsemi-annually thereafter until the Agreement is completed. Such status reports will becompleted within 30 days of the end of each period and will indicate the work completed inthe immediately past period and the work which it anticipates completing in the upcomingperiod. The first reporting period will begin as of the date of the Commission’s FinalOrder in this matter. Morrell will make available to OSHA’s Bismark Regional Administratorany programs, reports, and analyses prepared pursuant to Paragraphs 11(a), 14, 17, and 23of this Agreement and paragraph 4(d)(1)(b)(1)(b) of Attachment B, but all subject to theconfidentiality provisions in Paragraph 30 below. Except for those documents and otherinformation that are confidential or proprietary (and thus subject to the provisions ofParagraph 30), Morrell also will make available such programs, reports and analysis to thePresident of the Local 304A. OSHA’s and the Union’s contact at Morrell’s Sioux Falls plantwill be the Sioux Falls’ plant manager.F. Steps to Address the Conditions Cited inOSHRC Docket No. 87-0635 – Recordkeeping24. (a) Morrell will correct the entries in itsOSHA 200 Logs for those items listed in Paragraphs 8 and 11 on pages 37 and 38 of theAdministrative Law Judge’s decision in OSHRC Docket No. 87-0635. This step will becompleted within thirty days of the Commission’s Final Orders in these matters.(b) Morrell agrees to continue to maintain itsoccupational injury and illness recordkeeping practices in accordance with the Act, therecordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLS Guidelines, as the samemay be amended from time to time.25. Morrell will undertake an audit of theoccupational injury and illness recordkeeping practices at its Sioux Falls and Sioux CityPlants, by doing the following:(a) Undertake an examination of relevant recordsin its possession and ensure that OSHA-required records going back to January 1, 1988, arein 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 thisexamination period by Morrell, and for any item properly placed on the OSHA Form No. 200Log (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 recordkeepingrequirements.(b) Institute, at its Sioux Falls, South Dakota;and Sioux City, Iowa plants, a training program in OSHA recordkeeping requirements totrain those Morrell employees having responsibility for OSHA recordkeeping. The trainingprogram will be conducted by an individual(s) knowledgeable in the OSHA recordkeepingrequirements and will include instruction on OSHA recordkeeping regulations andguidelines.(c) The actions discussed in Paragraphs 25(a) and25(b) will be completed within six months of the Commission’s Final Orders in thesematters.G. Entry Onto Company Facilities26. During the term of this Agreement, Morrellwill permit OSHA reasonable entry into, and reasonable inspection of, its Sioux FallsPlant to determine compliance with this Agreement (\”monitoring inspections\”) andwith the Act. Morrell will not require a warrant for any such reasonable entry orinspection.27. The Secretary agrees that OSHA will not issuecitations nor take any other enforcement action against Morrell for any ergonomicconditions identified in the programs, reports, analyses, or monitoring inspections setforth in this Agreement, provided such conditions are being or will be addressed in goodfaith in accordance with this Agreement (including correction, if necessary).28. OSHA agrees that, if Morrell is implementing this Agreement, OSHA shall not conduct ageneral schedule inspection relating to ergonomic conditions in Morrell’s plant during theimplementation period of this Agreement. OSHA may continue to conduct complaint, fatality,referral, and catastrophe inspections and monitoring inspections as set forth inParagraphs 26 and 27. OSHA further agrees that, during the abatement period, if itdiscovers, in the course of a monitoring inspection, any condition it believes may be aviolation, OSHA will so inform Morrell before completing the monitoring inspection.H. General Provisions29. Extensions of Time. The Secretary andMorrell shall confer in good faith with the intent of achieving agreement on somereasonable extension or extensions of the periods set forth in this Agreement, if suchshould become necessary. The language in this paragraph, however, is not intended tosupercede the Commission Rule at 29 C.F.R. ? 2200.37, which deals with petitions formodification of the abatement period.30. Treatment of Confidential Material.All documents or other information made available by Morrell under this Agreement shall behandled 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, orportion thereof, that contains proprietary or confidential material. No document orinformation that is proprietary or confidential shall be made available, directly orindirectly, to the public (including the Union) in any form whether by summary, analysisor verbatim. All documents or other information that contain proprietary or confidentialinformation will be made available to the Union by Morrell only after the execution of aseparate confidentiality agreement.31. Discrimination. Morrell agrees tocontinue to comply with Section 11(c) of the Act, 29 U.S.C. ? 660(c), which prohibitsdiscrimination against any employee because of the exercise of any rights afforded by theAct and that Section 11(c) applies to the activities undertaken pursuant to thisAgreement. Such activities include reasonable requests to visit the medical facilities (aswell as actual visits to such facilities), being diagnosed as having a form of CTD, andundergoing medical treatment for a diagnosed form of CTD. This language does not in anyway create any duty or obligation on the part of Morrell beyond those duties orobligations that may already exist under other applicable federal or state discriminationlaws for regulations.32. Compromise of a Disputed Claim. It isunderstood and agreed by the parties that this Settlement Agreement constitutes acompromise of a disputed claim. Morrell specifically denies any and all allegations thatit violated the Act. Nothing in this Agreement, including the Agreement itself, itsexecution, as well as any Final Order, is an admission or evidence, nor is it to beconstrued as an admission or treated as evidence, of any fact or of any violation of theAct by Morrell other than in a proceeding brought by the Secretary under the Act. Inparticular, nothing in this Agreement is to be construed as an admission by Morrell that aspecific employee’s CTD, is work-related. For purposes of proceedings brought by theSecretary 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 avoidfurther litigation and expense to the parties.33. Term of Agreement. This Agreementshall be in effect for a period of four years from the date of the Commission’s FinalOrder in these matters. The Agreement will remain in effect thereafter unless and untileither Morrell or OSHA gives the other party sixty days notice that the Agreement iscancelled.Respectfully submitted, JOHN MORRELL & CO., SIOUX\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0SECRETARY OF LABOR, UNITED FALLS PLANT\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0STATES DEPARTMENT OF LABOR By:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0By:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Alan C. McMillan\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Deputy OSHA AdministratorRobert C. GombarJanet L. MillerJONES, DAY, REAVIS & POGUECounsel for RespondentSolicitor of LaborRegional SolicitorAttorney Counsel for ComplainantAttorney Counsel for ComplainantAUTHORIZED EMPLOYEE REPRESENTATIVE UFCW By:James R. Lyons, President Local 304AUnited Food & Commercial Workers Union, AFL-CIO, CLCNicholas 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 B1. \”Cumulative trauma disorder\” is aterm that does not indicate a particular medical entity because it is not characterized bya specific set of clinical, laboratory or pathological findings. The term, however, hasbeen used to group a collection of symptoms of the upper extremities considered to becaused or aggravated by certain activities, some of which may be work-related.The focus of the medical management program forpurposes of this Agreement will be those medical disorders of the upper extremitiesdefined by specific criteria and associated with certain work activities (such asrepetitive motion) (\”CTD\”). Examples of these types of disorders includetenosynovitis, tendonitis, synovitis, carpal tunnel syndrome, cubital tunnel syndrome,stenosing tenosynovitis of the fingers and epicondylitis.The goal of the medical management programdeveloped by the Medical Consultant is the diagnosis, prevention (including earlydetection) and appropriate treatment (including use of conservative modalities) of themedical conditions covered by this Attachment.2. Current employees will be surveyed toestablish a baseline for measurement of frequency of symptoms in the upper extremities.a. The Medical Consultant will develop aquestionnaire directed at measuring frequency of symptoms in the upper extremities amongthose employees currently holding Cited and Non-Cited Jobs.b. The questionnaire will be administered by thefirst aid staff to all such employees. The questionnaire will be drafted within 30 daysafter the Commission’s Final Order in this matter and will be administered to suchemployees within six months thereafter. The questionnaire will be readministered annuallysubject to reevaluation by the Medical Consultant.C. Using the questionnaires, symptoms ofdiagnoses associated with CTD for each job category will be tabulated. This tabulationwill be made available to the Union and to OSHA. The questionnaires will be made availablefor use of specifically designated OSHA personnel only pursuant to a properly drawnmedical records access order, which will not be opposed by Morrell.3. The procedures that will be followed for newemployees who are to hold a Cited or Non- Cited job are:a. All such new employees currently are given a physical examination. The physicalexamination will be expanded to include examinations or tests of the upper extremities, asrecommended by the Medical Consultant, to complete the baseline information for eachemployee.b. All such new employees will be seen inMorrell’s first-aid facility by a nurse during the first, third and sixth weeks of theiremployment. The nurse will review any new symptoms such employee may be experiencing.c. Such new employees exhibiting symptoms orphysical signs during the time periods described in subsection b. of this paragraph willbe integrated into the medical management program for current employees described inparagraph 4 below.4. To the extent not already in place, (andexcept as to the protocols to be developed as discussed in Paragraph 5 of this AttachmentB) 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 thismatter, will be as follows:a. Morrell maintains a first-aid facility staffedwith one or more nurses to which each employee is to report his\/her symptoms related tothe upper extremities.b. When such employee reports his\/her newsymptoms, the first aid nurse will conduct a screening examination: (1) An interim history will be taken.(2) A directed physical examination (includinginspection, palpation and range of motion) will be conducted.c. If the directed physical examination revealsphysical signs of an upper extremity disorder, the employee will be referred to anauthorized treating physician. If there are no physical signs, the nurse will follow theprotocols to be established by the Medical Consultant as described in Paragraph 5 of thisAttachmentB. Unless and until superseded by such protocolsthe following will apply:(1) For initial symptoms consistent with muscleand\/or tendon disorders and\/or nerve entrapment, therapy such as ice\/massage and\/orcontrast soaks and\/or wrapping may be used.(2) Morrell’s nurses have never used, and will not use, parafin for employees withsymptoms of carpal tunnel syndrome or tendon-related disorders.(3) Morrell’s nurses will not use daytimesplints. d. Reevaluation procedures.(1) Morrell will institute a procedure forreevaluating the symptomatic employee within 3 working days except that the time framesset forth in the protocols developed or revised by the Medical Consultant pursuant toParagraph 5 of this Attachment B shall supersede the 3 working days set forth in thissubsection.(a) If the employee’s symptoms are better, thefindings will be recorded.(b) If the employee’s symptoms remain the same orare worse, the employee will be referred to an authorized treating physician.(1) When the particular employee is returned towork by the authorized treating physician, existing or newly created Production Jobs atthe 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 tothe 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 willbe 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 Paragraph17(b)(1) of the Agreement as part of the job assignment determination for such employee.(c) The medical personnel, in consultation withother appropriate management personnel, will determine to which job the employee will beassigned upon return to work.(2) Morrell will institute a procedure forreevaluating, each three working days, those employees who are returned to work under thisprogram by the authorized treating physician and are assigned to a job. The reevaluationwill continue until such symptoms subside and will include a review of medicalrestrictions, if any, for such employee’s upper extremity disorder. As set forth inParagraph 5, protocols developed (or subsequently revised) by the Medical Consultant areto supersede the procedures (including the time frames) outlined in this Paragraph.5. The Medical Consultant, who may be assisted byother 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 programas deemed feasible and useful. The protocols, which will be consistent with, and not lessrigorous than, the program outlined this Attachment B, will include specific diagnosticcriteria and outline medical treatment, if any, to be given at Morrell’s first aidfacility 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 forreevaluation, actions to be taken in reevaluating the employee, reevaluation after returnto work).6. Under the direction of the Medical Consultant,the nurses employed by Morrell will receive training to implement the procedures outlinedin this Attachment B, including implementation of any subsequent protocals developed bythe Medical Consultant.7. The procedures that will be followed when anemployee 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 sutureshave been removed and no infection is seen).(1) During this period, the authorized treatingphysician will refer the employee to, or determine for the employee, a therapy(occupational or physical therapy)\/work hardening program in Sioux Falls which theemployee must attend as ordered.b. Once the authorized treating physiciandetermines 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 adequateprotective sensitivity or motion, s\/he is to continue with the therapy\/work hardeningprogram until the authorized treating physician determines that s\/he does have adequateprotective sensitivity and motion.(2) If the authorized treating physiciandetermines that the employee has adequate protective sensitivity and motion, the employeemay return to work as described below.c. The authorized treating physician who releases the employee to return to work willdescribe those restrictions, if any, applicable to that employee. The employee willprogress through a work restriction program at Morrell with medical follow-up. Theauthorized treating physician, in conjunction with the therapist, will evaluate theprogress of the employee until s\/he is released to unrestricted duty.(1) When the particular employee is released toreturn to work, Cited and\/or Non-Cited Jobs at the Sioux Falls Plant will be evaluated tothe extent necessary to determine what job(s) is appropriate for the particular employeewho has the medical restriction.d. This procedure is tentative and subject tofurther development or amendment as the program progresses. The procedure will beevaluated yearly by the Medical Consultant (during the period of retention set forth inParagraph 21), in conjunction with other medical personnel to determine whether it needsrevision (e.g., taking into consideration medical advances).e. The parties agree that Morrell shall followthis procedure even if the employee’s own surgeon or doctor permits the employee to returnto work or to his\/her previous job sooner than the periods required by this procedure.f. An appropriate form setting forth thisprocedure (or later amendments) will be made available to each employee who undergoessurgery for such upper extremity disorder addressed in this Attachment.g. The procedures set forth in this Paragraph 7will be implemented within 180 days after the Commission’s Final Order in this matter.8. The term \”authorized treatingphysician\” used in this Attachment B refers only to those physicians who aredesignated by Morrell and who will be trained by the Medical Consultant. If the employeechooses his or her own physician in accordance with applicable state laws, Morrell willgive the employee this protocol (or, if revised, the revised protocol) and instruct theemployee to give the protocol to his or her chosen physician. Morrell cannot designatephysicians or control their treatment under certain applicable state laws.\u00a0\u00a0\u00a0 SECRETARY OF LABOR, Complainant, v. JOHN MORRELL & COMPANY, Respondent, UNITED FOOD & COMMERCIAL WORKERS, Local 304A, AFL-CIO, Authorized Employee Representative.OSHRC DOCKET NO. 87-0635APPEARANCES: For the Complainant:Robert S. Milgrim, Esq. Office of the Solicitor U.S. Department of Labor Kansas City,MissouriFor the Respondent: Robert E. Mann, Esq.Seyfarth, Shaw, Fairweather & Geraldson Chicago, IllinoisFor the Authorized Employee Representative: Nicholas W. Clark, Esq.Assistant General CounselUnited 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, SouthDakota, that commenced on September 18, 1986, the Secretary of Labor issued Citation No. 5and Citation No. 6 to respondent Morrell, charging willful and other than seriousviolations of 29 C.F.R. ?1904.2(a) (the record-keeping standard).[[1\/]] The Secretaryproposed a total penalty of $690,000 or $10,000 for each of the 69 alleged willfulviolations under Citation No. 5. No penalties were proposed for the alleged other thanserious violations under Citation No. 6. Respondent contested the alleged violations underCitation Nos. 5 and 6, the designation of \”Willful\” under Citation No. 5, andthe 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, andreply briefs. This case now is ready for decision.Issues1. Whether Citations 5 and 6 are barred by theAct’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 29C.F.R. ? 1904.2(a) alleged under Citation 5.3. Whether the alleged violations under Citation No. 5 are properly designated orcharacterized as \”Willful\”?4. What, if any, penalties are appropriate? STATUTE OF LIMITATIONS ISSUEIn its Answer to the Secretary’s Complaint, Morrell raises the affirmative defense thatCitations 5 and 6 issued in this case are barred by the statute of limitations prescribedin Section 9(c) of the Act. At the close of the Secretary’s case, Morrell also moved todismiss the case on the ground that the citations were not issued within the six-monthperiod specified by Section 9(c) of the Act (Tr. 503-508). Decision on this motion wasreserved (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 monthsfollowing the occurrence of any violation.\”The Commission invokes the so-called\”discovery rule\” to determine when the Act’s statute of limitations periodbegins to run on violations of the Act. According to the Commission, the statute oflimitations does not begin to run on a discrete violation until OSHA \”discovers orreasonably 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 tocontinuing violations. See Kaspar Wire Works, Inc., 13 BNA OSHC 1261 (No. 85-1060, 1988). The burden of establishing the bar of Section9(c) rests on the respondent. However, once the respondent raises the defense and acitation on its face shows that a violation is time barred by Section 9(c), it isincumbent on the Secretary of Labor, if she is to avoid the bar, to demonstrate that thecitation at issue was issued within the six- month period of the statute of limitations.The Secretary first contends in her brief thatOSHA 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 thatthe citation was \”clearly\” issued within six months of the inspection.The Secretary, however, also makes a number ofother \”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 Secretaryappears to claim that the statute of limitations on continuing recordkeeping violationsdoes not begin to run until the reporting violations are correctly recorded or until theSecretary acquires actual knowledge of a failure to correctly record. This also was theSecretary’s position in Yelvington Welding Service, 6 BNA OSHC 2013, (No. 15948, 1978). Asthis Judge understands the Secretary’s contention in this regard, the statute oflimitations on these violations did not begin to run until the detailed recordkeepinginspection begun on October 24, 1986, actually discovered the specific violations. Therecord, however, does not indicate when the Secretary actually learned of the citedalleged violations.Finally, the Secretary also cites the Commissiondecision in Yelvington Welding Service, supra, for the propositions that Section 9(c) issubject to equitable tolling principles and that this limitations period does not commenceto run until the Secretary knows or reasonably should have known of violations.According to the Secretary, the Secretary did notknow, or have reason to know, of the violations in this case until after October 23, 1986.The authorized representative’s brief argues boththat the statute of limitations did not begin to run until October 24, 1986, and thatMorrell’s affirmative acts of fraudulent concealment served to toll the statute oflimitations until October 24, 1986.On the other hand, Morrell claims that the recordestablishes that the Secretary discovered or reasonably should have discovered the allegedviolations long before the 1986 inspection and, therefore, the citations were issued afterexpiration of the Section 9(c) six-month period.When did the statute of limitations prescribed bySection 9(c) begin to run on the alleged violations in Citations 5 and 6 issued on April23, 1987?According to the citations, the inspectioncommenced 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 Fallsplant. The warrant was sought in response to a complaint made by the President of Local304A, 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 ComplianceOfficer, Roger L. Hildremyr, declared that based on his evaluation of the complaint,\”there are reasonable grounds to believe,\” among other things, that violationsof 1904.2(a) existed at Morrell’s plant — \”OSHA 200 logs not being properlymaintained.\” 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 the1985 OSHA 200 log had been investigated by the week of October 6, 1986, and he hadconcluded that there were violations with respect to Morrell’s method of recordingrestricted work activity (Tr. 42-45). His written narrative of the investigation statesthat he had completed the investigation of 90 percent of the entries on the 1985 OSHA 200logs by October 6 (Tr. 42-43).Morrell’s OSHA 200 logs also have been previouslyexamined 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 whichincluded an August 7, 1980 Morrell memorandum entitled \”‘Guidelines for DeterminingRecordability\” (Tr. 135-136; Ex. C-7). These guidelines appear consistent with OSHA’sinterpretation of some of its recording requirements.Mr. Charles Edwards, a former Compliance Officerwith 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 whocomplained of being brought back to work early following accidents. The employees told himthat 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 involvedon the logs (Tr. 78-79, 92-95). At that time, he reviewed all of the 1983 OSHA 200 logsdating 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 therecording errors. Mr. Junso told Mr. Edwards that it was customary to bring injuredworkers 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 restrictedwork activity in accordance with OSHA’s long standing interpretation of 1904.2(a) and therecordkeeping instructions on OSHA Form 200.Mr. Edwards testified that he discussed the OSHArecording requirements at that meeting, specifically mentioning that an injury wasrecordable where an employee was brought back and put into a position different from hisoriginal job (Tr. 82-83). Mr. Edwards understood from statements made that Morrell wouldadd the missing entries that had been discovered and that Morrell also would \”complyin the future\” (Tr. 85-86). Mr. Junso testified that the six missing entries werecorrected following the June meeting (Tr. 587-588).Mr. Edwards testified that because the discoveredsix recording violations were outside the agreed scope of the inspection he did notrecommend the issuance of a citation.In August of 1984, Mr. Edwards returned toMorrell with a warrant which also authorized him to examine records \”required to bemaintained by the Act and regulations (Tr. 98; Ex. R-4).\” There is no indication inthe record as to what records, if any, Mr. Edwards examined on that occasion. The August1984 citation to Morrell, however, did not contain any alleged recordkeeping violations.(Tr. 151).After a second closing conference with Morrell onSeptember 4, 1984, he reviewed his inspection report of the June 1984 inspection, datedJuly 9, 1984, with his Area Director, Bruce Beelman. Mr. Edwards in his July report hadrecommended 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 recallsreading the narrative on Mr. Edwards’ inspection but does not recall the statementreferring to manipulation of the L.W.D.I. (Lost Work Day Injury Rate) or discussing thestatement 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 CharlesBundy reviewed Morrell’s OSHA 200 logs on the instructions of Mr. Beelman, OSHA AreaDirector, \”to look at those records and take whatever action was necessary to try anddetermine the accuracy of those records.\” After reviewing Mr. Bundy’s report on May3, 1985, and questioning him, Mr. Beelman concluded that Mr. Bundy had not conducted theApril 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 includinginterviews 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 1.4and it was Mr. Beelman’s opinion that 1.4 was a \”very low rate\” considering thetotal number of injuries recorded by Morrell. It was Mr. Beelman’s testimony that thosecircumstances should create a suspicion that something was wrong with the logs and wouldgive 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 otheritems, that Morrell was improperly recording restricted work activity (Tr. 123-124). Whenthe union reached a contract agreement with Morrell in November 1985, however, thecomplaint was withdrawn without being acted upon by OSHA (Tr. 126-128, 183).Prior to the September 18, 1986 inspection, OSHAdid not actually \”discover\” any of the specific instances cited in the 1987citations. But obviously, at the time the warrant was applied for on September 17th, OSHAhad actual knowledge of facts and was on notice of facts which in the exercise ofreasonable diligence would have led to actual knowledge of all of the alleged violationsin this case. Based on this record, therefore, the statute of limitations commenced to runno later than September 17, 1986. Because the citations in this case were issued on April23, 1987, more than six months after September 17, 1986, they are barred by Section 9(c)of the Act.Both the Secretary and Authorized EmployeeRepresentative contends that the statute of limitations did not commence to run until atleast October 24, 1986, when a \”detailed\” investigation of Morrell’s injury andillness recordkeeping procedures allegedly began. The point at which the statute oflimitations begins to run, however, does not necessarily coincide with when either theSecretary begins a \”detailed\” investigation that will lead to discovery of theviolations or when the Secretary decides that a violation has been committed. Rather, thestatute of limitations may begin to run when knowledge and due diligence requirecommencement of an investigation by the Secretary. See Sun Ship, supra. Moreover,Compliance Officer Hildremyr concluded sometime during the week of October 6, 1986, thatviolations of 1904.2(a) existed. On the basis of that conclusion alone, the statute oflimitations 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 diligencecould not have issued the citations within the six month period commencing on September17, 1986, or within the six month period commencing October 10, 1986. Although agreeingwith the authorized employee representative that some of Morrell’s actions (particularlythe statements made at the meeting of June 27, 1984) may have misled or lulled OSHA intobelieving that Morrell was complying with OSHA’s interpretation of the restrictedactivities recording requirements of 1904.2(a) and OSHA Form 200, there is no evidencethat any actions or statements to conceal the alleged violations were undertaken byMorrell after September 17, 1986.One final point. Although the Secretary iscorrect that the cited alleged violations were continuing violations, the Commission hasnot adopted the rule that the statute of limitations begins to run on continuingviolations when the violation is corrected or when the violation is actually discovered.As previously pointed out, the Commission in Kaspar Wire Works, Inc., supra, whichinvolved continuing violations, did not adopt the Secretary’s position on actual knowledgeof the violation and held that the statute of limitations with respect to continuingviolations begins to run when OSHA discovers or reasonably should have discovered theviolation. This Judge is constrained to follow the Kaspar decision.To obviate the need of a remand, however, shouldthe Commission or a reviewing court find that the citations were issued within thesix-month statute of limitations of Section 9(c) and were not barred, this Judge willproceed 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 otherthan serious violations of Citation No. 6. Therefore, it becomes unnecessary to decideCitation No. 6 on its merits.Alleged ViolationsMorrell concedes that lost work days must berecorded 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’scurrent Safety Director, all testified to the effect, however, that it was Morrell’s longstanding policy not to record restricted duty days under Columns 2 and 5 of the OSHA Form200 or Columns 9 and 12 unless an employee also had lost work days as a result of anoccupational injury or illness (Tr. 528, 531- 532, 563, 611, 613). Morrell further arguesthat even if restricted work activity is recordable without a related lost work day, it isnot recordable as restricted work activity if not ordered by medical personnel.Additionally, Morrell contends that there was noviolation of 1904.2(a) because the incidents involved in the citation were recordedconsistently 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 ofrestricted work activity and a tally of the number of restricted days, are subsectionsunder the heading \”Injuries [Illnesses] with Lost Workdays\” (Ex. C-4). Morrellargues that the placement of these columns under the \”Lost Workdays\” heading andthe plain meaning of the term \”lost workdays\” indicate that those columns neednot be filled out unless an injury resulting in restricted work days is also accompaniedby days away from work. Morrell contends that with respect to injuries where the employeespent no time away from work, entries should be made only under column 6, \”InjuriesWithout Lost Workdays\” (Column 13 if illnesses are involved).Morrell claims that this interpretation wasfollowed by the Secretary prior to and including 1985. Morrell supports this contention bypointing to a 1987 change in the footnoted explanation of column 6 on OSHA Form-200S, usedto summarize data from the 200 logs (Ex. R-11, R-12). Column 6, \”Without LostWorkdays\” contains a footnote in the 1985 form which defines \”Without LostWorkdays\” as \”cases (with no days lost) resulting in either: diagnosis ofoccupational illness, loss of consciousness, restriction of work or motion, transfer toanother job, or medical treatment beyond first, aid.\” The footnote on the 1987 formcontains the parenthetical comment \”(on the day of occurrence)\” following thewords \”restriction of work or motion.\”The Secretary declares that the OSHA 200 logclearly 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 othermanner. The Secretary maintains that the change in Form 200S is merely a clarification ofexisting policy and does not denote any change in interpretation.Examination of the OSHA 200 form supports theSecretary’s position. Both the instructions under columns 2 and 9 and the instructions forfilling out these columns on the reverse side of the 200 log make clear that one of thesecolumns must be checked whenever any injury or illness \”involves days away from work,or days of restricted work activity, or both.\” These instructions specifically applyto 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 9when 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 madein columns 1 or 2 and column 13 is to be checked only if no entry is made in columns 8 or9.The more reasonable interpretation is that forthe purposes of the OSHA 200 log, days of restricted work activity also constitute\”lost workdays.\” This position is supported by the instructions for filling outcolumns 4 and 11 and columns 5 and 12 on the back of the form, which divide \”lostworkdays\” into two groups captioned – LOST WORKDAYS–DAYS AWAY FROM WORK and -LOSTWORKDAYS–DAYS OF RESTRICTED WORK ACTIVITY.Nor do the changes in the OSHA 200S form requirea contrary conclusion. Given the clarity of the OSHA 200 log itself, there is no need foran employer to rely on language contained in a separate form to interpret the OSHA 200form. Moreover, the 1985 footnote on OSHA Form 200S is not inconsistent with theinstructions on how to fill out columns 2 and 6. If an entry is made in column 2, no checkis made in column 6. The obverse also is true. If restricted work activity occurs only onthe day of the injury, column 6 would be checked, but not column 2. The 1987 change pointed out by Morrell does notchange, but merely clarifies those instructions. Under the definition of \”RecordableCases,\” of course, restricted work activity always must be recorded under columnsA-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 (ExhibitJ-1). These items of Citation No. 5, therefore, should be vacated.With respect to the following Citation No. 5items, Morrell stipulated that medically ordered, temporary work restrictions resultedfrom 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 arerecordable in columns 2 and 5 or columns 9 and 12 without reference to lost workdays andshould be affirmed.In paragraph 6 of the Stipulation, the Secretaryamended items C-1 and C-2 to other than serious violations with no proposed penalty, andMorrell withdrew its notice of contest to those items (Ex. J-1).Morrell contests the recordability of theremaining 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 ofrecordable 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 restrictedwork 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 atemporary basis, or(2) the employee worked at a permanent job lessthan full time, or(3) the employee worked at a permanently assignedjob but could not perform all duties normally connected with itThe number of lost workdays should not includethe day of injury or onset of illness or any days on which the employee would not haveworked even though able to work.The Individual Contested-ItemsItem 1(a)-1. Darrel Paulin testified that onJanuary 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 hissupervisor assigned him janitorial work and other odd jobs for approximately three weeksand four days at which time he returned to his regular job trimming hams (Tr. 297-304).Morrell argues that the restriction isunrecordable, however, because the injury was not job-related and because the restrictionwas not ordered by a physician. This Judge agrees that the incident was not work-relatedand 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 inpertinent part: ?1904.12 Definitions* * *\”(c) \”Recordable occupational injuries or illnesses\” are any occupationalinjuries or illnesses * * *\” (Emphasis added). The Commission has previously given abroad interpretation of the recording obligation with respect to occupational illnesses.In General Motors Corp (Inland Division) 8 \”A OSHC 2036 (No. 76-5033), the Commissionheld that employers must record illnesses in which the occupational environment either wasa contributing factor to the illness or aggravated a pre-existing condition. Applying asimilar interpretation to \”occupational injuries,\” it is reasonable to requireemployers to record injuries in which the occupational environment was a contributingfactor even in a situation when the occupational environment did not directly cause theinjury. But the injury here was not \”work-related\” as that term is customarilydefined. It was directly caused by the unanticipated \”horseplay\” behavior of afellow 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 definitionof \” occupational injuries,\” she needs to amend ?1904.12(c) and herinstructions on OSHA Form 200 to include all injuries that occur in an employer’s workenvironment.Item 1(a)-6. Charlotte Burkel testified that onMarch 20, 1985, she suffered a knife cut to her left forearm while at her regular jobtrimming loins (Tr. 237). She received three stitches and the clinic ordered her put onlight duty (Tr. 238-239). Ms. Burkel stated that she boxed tails and ran errands for twoweeks before returning to her regular job (Tr. 240).Morrell admits it is unable to rebut Ms. Burkel’stestimony (Respondent’s Post-Hearing Brief p. 17). Ms. Burkel’s restricted duty wasrecordable under Columns 2 and 5.Item 1(a)-11. Wayne Hallem testified that onApril 24, 1985, he punctured his left forearm with a knife while performing his regularjob trimming loins (Tr. 317). Mr. Hallem stated that he received three stitches whichprevented him from performing his work (Tr. 320-321). At his own request, Mr. Hallem wasassigned a job cleaning abscesses from product for two or three days before returning tohis own job (Tr. 322- 323).Morrell argues that there was no evidence of anyactual restriction of motion In Mr. Hallem’s arm. But nothing in the instructions requiressuch a showing. Mr. Hallem’s days of restricted work meet criteria (1) and (3) in the OSHAForm-200 instructions for column 5 and, therefore, entries should have been made undercolumns 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 tohis 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 toldhis foreman that he could not trim hams and needed a one-handed job. Mr. Bierle believedthat he swept floors and performed clean-up for three weeks before returning to hisoriginal job (Tr. 418-419).The lack of a medical authorization isimmaterial, and Mr. Bierle’s period of restricted work should have been entered undercolumns 2 and 5.Item 1(a)-14. Howard Dean Rehfeldt testified thathe suffered a laceration to his left thumb on July 11, 1985, while performing his regularjob skinning out the front end of sheep (Tr. 352). Mr. Rehfeldt stated that he receivedfour or five stitches and returned to work where he was put on relief duty, trimming dirtand fat one-handed. The next four days he performed odd jobs such as making kosher tagsfor sheep (Tr. 355-356, 361). Mr. Rehfeldt returned to his regular job after returningfrom previously scheduled leave (Tr. 375).It is clear that Mr. Rehfeldt was assigned lightduties for four days due to the cut and stitches on his thumb. Those days should have beenrecorded 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 righthand while skinning intestines (Tr. 381). Mr. Ackerman stated that after receiving ninestitches, he returned to work and was assigned a job pulling intestines from a tank forthe 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 evidencethat Mr. Ackerman experienced a full day of restricted activity recordable under columns 2and 5 on OSHA Form-200.Item 1(a)-17. Mike Hoffman testified that onDecember 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 withbutterfly bandages. Mr. Hoffman testified that after returning to work he was placed onlight 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 thatMr. Hoffman actually received stitches at a clinic on December 20th for the December 19accident (Tr. 464-466, 482-483). Mr. Hoffman stated that he had received a number of cutsrequiring visits to the clinic over the 13-month period surrounding the incident inquestion and that \”you kind of lose count\” (Tr. 479-481).Mr. Hoffman’s inconsistent testimony isinsufficient to establish his clear recollection of the incident in question and supportthe Secretary’s allegations.Item 1(a)-18. Mark J. Uithoven testified that on December 24, 1985, he cut his right indexfinger boning beef heads (Tr. 453-454). Mr. Uithoven stated that he returned to work afterreceiving seven stitches, where the foreman assigned him a job packaging livers andstacking boxes. He performed that job that day and the next two before returning to hisregular job (Tr. 455-458). Mr. Uithoven stated that the job was easier on his finger thanholding a boning knife (Tr. 460).It is clear that Mr. Uithoven was placed in aposition other than his regular job due to his injury. Those two days of restricted workshould have been recorded under columns 2 and 5.Item 1(a)-19. Mr. Glen Ray Bergen testified thaton May 21, 1985, while hoisting dead beef and dropping it onto a rail for skinning, he washit 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 depthperception with the eye patch and stated that he told his foreman that the doctor hadordered him not to operate equipment or knives. Mr. Bergen was given a job checking gutsfor cuts for a couple of hours (Tr. 427-428). No medical restriction was noted on themedical 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 ifthe employee is restricted for a full day, other than the day of the onset of illness orinjury. The Secretary has failed to demonstrate that Mr. Bergen experienced a full day ofrestricted activity.Item 1(a)-22. Ron Christensen testified that on February 8, 1985, he suffered lower backstrain 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 jobthrowing hams from a vat onto a table with a hook. Mr. Christensen did not feel that thejob was light work and performed the job only a couple of hours before asking to bereturned to his regular job (Tr. 328- 33).Mr. Christensen did not spend a full day at lightduty and was able to return to his regular job. There was no recordable restrictedactivity 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 recordabledays of restricted activity.Item 1(a)-27. Mr. Glen Ray Bergen stated that hesuffered a back sprain in November 1985 while skinning necks (Tr. 429,445). Afterreceiving physical therapy and a prescription for muscle relaxants, Mr. Bergen returned towork but found he could not lift the hides and asked to be moved (Tr. 429-431). Mr. Bergentestified that he was assigned to a job skinning collage (gray area) from beef for oneweek before returning to his regular job (Tr. 432).It is undisputed that Mr. Bergen was assigned atemporary job for a week due to his injury. Those days are recordable as restricted workactivity under columns 2 and 5.Item 1(a)-29. Patricia Lendal did not testify. The medical records introduced by theSecretary (Ex. C-9) do not support a finding that she experienced any recordablerestricted workdays.Item 1(a)-34, 1(b)-4. Mr. Gaylord Clark testifiedthat 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 thefollowing day but left immediately and did not work (Tr. 390, 408-413). For the nextseveral months he rotated between folding boxes and packing or stacking packages ofweiners one- handed until a boxing job opened up (Tr. 391-395). Mr. Clark felt that withinthree weeks he would have been able to use both hands, but still experienced pain and didnot 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 toanother job as a result of his injury (Respondent’s Post-Hearing Brief, p. 21). So long asthat assignment was temporary in nature and was due to the injury it was recordable undercolumns 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 onMarch 16, 1985, she suffered chemical burns to her right thigh and left wrist whilecleaning the cooler floor on the wiener deck (Tr.254). Upon returning to work, Ms. Ackelwas \”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 requiredher getting her bandages wet. The safety director at Morrell then found her a job labelingbacon 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 herbandages (Tr. 264).Ms. Ackel was not removed from her permanent jobbecause of her injury, but because of a departmental shutdown. Since washing tripe was nota permanent position, her reassignment from that position due to her injury was notrecordable under column 5.Item 1(b)-2 Connie Uithoven testified that onNovember 23, 1985, she suffered a knife puncture to her right middle finger whileperforming her regular job of boning hams (Tr. 278). The following day Ms. Uithoven washospitalized for an infected hand. Ms. Uithoven stated that she remained in the hospitalfor 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 workdays 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 employeesuffered any lost work days.Item 1(b)-5. Mr. G. O’Brien did not testify. At trial, Morrell stipulated that \”therewas apparently one lost work day associated with this case . . . not indicated on thelogs\” (Tr. 211). A lost work day should have been entered on the log.Item 1(b)-6. Perry Steilow testified that on May14, 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 tothe clinic for treatment and went home (Tr. 246-247). At the end of that time Mr. Steilowwas 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 wererecordable as lost work days under column 4.Item 1(b)-8. William Zafft testified that onJanuary 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 adoctor’s slip restricting him to light duty and spent the next two weeks in the electricalshop doing bench work (Tr. 270-274).Mr. Egger stated that the failure to record thelost weeks of work was probably due to an oversight resulting from the delay between theinjury and the surgery (Tr. 617). That time should have been recorded as lost work daysunder column 4.Item 1(b)-9. Fred Devany testified that onDecember 19, 1985, he injured his knee while at work and was put on crutches when hereported to first aid the next day (Tr. 230). Mr. Devany stated that he did not go intowork that day but on the following day he reported to the clinic and was given workpasting labels on can lids for approximately two weeks (Tr. 232).Mr. Devaney did not work the day he reported tothe clinic, the day following the injury. Thus, that day is reportable as lost work timeunder column 4.Item 1(d)-1. Forrest O’Neal testified that onJanuary 3, 1985, he was kicked by a stunned beef while heading (i.e. bleeding andskinning) cattle, and developed \”tennis elbow\” (Tr. 306). Mr. O’Neal stated thathis arm was strapped and he was issued a light duty slip by the first aid clinic. For thenext two weeks he checked hides for knife cuts one-handed (Tr. 308-310. Mr. O’Neal thenreturned to his regular job (Tr. 311).It is undisputed that Mr. O’Neal was reassigneddue to the January 3 incident and was unable to perform all of the duties of his permanentjob. That time is recordable as restricted work activity on the OSHA Form-200.Item 1(d)-2. Dale Eugene Nygaard testified thaton January 11, 1985, he developed tendonitis in his left thumb from performing his regularjob stripping loins (Tr. 365-367). Mr. Nygaard stated that within a few days his foremanput him on a Cryvac line strapping boxes of loins after Dr. Tam ordered him placed onlight duty (Tr. 368). In two days Mr. Nygaard returned to his job though his thumb stillbothered him (Tr. 370-371). Mr. Nygaard testified that he was qualified to do many jobs onthe 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 fromstripping loins and assigned to the Cryvac line because of his injury. Those days arerecordable as restricted work activity under column 12 despite the fact that he wasqualified for or had been assigned to the strapping job in the past. He was unable toperform all the duties of his permanent job.Items 1(d)-3, (e)-1. Rene Swanson testified thaton January 23, 1985, she saw a company doctor for pain in her right wrist and a locking ofher right ring finger she experienced while operating a wizard knife. Therapy, bracing andmedication proved ineffective and on May 5, 1985, Ms. Swanson had carpal tunnel releasesurgery on her wrist (Tr. 488-492). Ms. Swanson stated that she returned to work threedays 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 tothe earlier injury. He assumed that they were not recorded under column 11 due to anoversight (Tr. 619). Ms. Swanson’s restricted duty also was recordable under column 12.Item 1(d)-14, (e)-5. Tod Juhnke testified that onMay 12, 1985, he reported problems he had begun to have in his right wrist as a result ofhis work with a \”wizard\” knife (Tr. 337-339). The problem was diagnosed as aganglion 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 workday, 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 outon strike the next week, but punched in daily and walked around trying to \”lookbusy\” (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 thesurgery with the May 12, 1985 cyst.Mr. Juhnke’s complaint and treatment werecontinuous from the May 12 incident up until his surgery and reasonably may be assumed tobe related and culminated in that surgery. The lost work time and restricted work activityresulting from the surgery were reportable under columns 9, 11, and 12.Item 1(d)-15. Doug Clark testified that on August1, 1985, while performing his regular job of facing and pelting sheep, he developed a cyston his right palm.Some weeks later, after having the cystsurgically removed, he returned to work (Tr. 217-220). Mr. Clark stated that he had fourstitches in his palm and could not do his regular job (Tr. 227-228). At his request he wasput 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 jobwas 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. Medicalrecords supplied by the Secretary (Ex. C-9) do not demonstrate that the employee sufferedany lost work time.Willful IssueThe Secretary alleges that Morrell willfullycommitted all of the alleged violations in Citation No. 5. With respect to the violationsalleged in her Citation No. 6, however, the Secretary characterizes them as \”otherthan serious\” even though they are similar to the Citation No. 5 violations.The record evidence establishes that theviolations with respect to recording restricted work activity committed by Morrell afterthe 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 OfficerEdwards of the Secretary’s interpretation of the standard’s requirements concerning therecording of restricted work activity and the instructions on OSHA Form 200. Morrell’srepresentatives related to the Compliance Officer Morrell’s practice of not recordingrestricted 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 positionbecause of his injury, the event was recordable. He told Morrell representatives howrestricted work activities were to be recorded on the OSHA Form 200 (Tr. 81-84). After hecompleted his \”informational program\” concerning the OSHA Form 200, he was toldby the Morrell representatives that they would start to make the necessary corrections intheir OSHA 200’s to meet the requirements of the Act (Tr. 85-86). The Compliance Officer’stestimony in this regard was corroborated by the union representatives present at themeeting (Tr. 107-108,121). This testimony stands unrebutted. Mr. Junso has littlerecollection of what transpired at the June meeting and no recollection relating towhether recording of restricted work activity was even discussed (Tr. 587-588). On thisrecord, the testimony of the Compliance Officer and the union representatives is credited.Despite awareness of the \”Secretary’s interpretation, Morrell continued its priorpractice of recording restricted work activity only if lost work days were involved.Perhaps Morrell believed that its interpretation of the standard’s requirements concerningrecording restricted work activity would prevail at a hearing. By continuing its priorpractice, however, Morrell assumed the risk that this defense would fail and the risk thatits deliberate course of action would be characterized as willful. That defense hasfailed, and Morrell’s failures to record restricted work activity in compliance with theOSHA 200 instructions and the Secretary’s interpretation of those instructions should becharacterized as willful violations.Citing the decision in Mel Jarvis ConstructionCo., 10 BNA, OSHC 1052, among others, Morrell contends that a violation is not willful ifthe employer has a good faith opinion that the violative conditions conform to the citedstandard. The Commission decision in Mel Jarvis, which affirmed a decision of this Judge,however, is clearly distinguishable. Morrell, unlike Mel Jarvis, was aware of theSecretary’s interpretation of the standard’s requirements. Moreover, there is nothing inthe OSHA 200 instructions to support a finding that Morrell’s contrary interpretation ofthe instructions is reasonable and, therefore, held in good faith. Cf. RSR Corporation, 11BNA OSHC 1163 (1983).A different situation, however, is presented by the failures of Morrell to comply with therecordkeeping violations not related to restricted work activity. There is insufficientevidence to conclude that those failures were willful or anything more than negligentoversights on the part of Morrell.Mr. Pfeifle’s testimony establishes Morrell’sawareness in early 1984 that OSHA utilized lost work days to determine whether or not toinspect employers and Morrell’s obsessive concern in not allowing its lost workdays totrigger an inspection. But there is nothing to indicate that Morrell deliberately violatedor was recklessly indifferent to, the other recordkeeping requirements, such as recordinglost work days (Tr. 62-73).The violations under Citation No. 5 not relatedto restricted work activity, therefore, should be affirmed as other than seriousviolations.PenaltiesThe Secretary has proposed the $10,000 maximumpenalty under the Act for each, separate, willful violation under Citation No. 5. Nopenalties, however, were proposed for the other than serious recordkeeping violationsunder Citation No. 6 despite their similarity to the Citation No. 5 violations, or foritems C-1 and C-2 under Citation No. 5.Assessment of individual penalties for eachseparate violation of a standard is not precluded by section 17 of the Act. As a matter ofpractice, 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 ofrecord to depart from this prior practice.Ultimate authority for assessment of penalties, of course, lies with the Commission, andthe 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 UnitedStates Steel, Chairman Rowland declared that it is fundamentally unfair to assess multiplepenalties against an employer for the same conduct. According to him, violative instancesof the same standard in that case should be combined into one alleged violation and onepenalty assessed. Commissioner Cleary, on the other hand, simply declared that theCommission may, when it deems it appropriate, assess a single penalty for two or moreviolations of a single standard. A single penalty for multiple violations of the samestandard 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 assessall civil penalties provided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the business of the employerbeing charged, the gravity of the violation, the good faith of the employer, and thehistory of previous violations.Morrell employs 3,000 persons at Sioux Falls andhas a past history of violations of the Act, including one prior violation of therecordkeeping standard. (See Exhibit J-1) As previously pointed out, Morrell also lackedgood faith with respect to any of the willful violations relating to restricted workactivity. Although the gravity of these willful violations is not high, the maximum totalpenalty for these violations is appropriate in order to motivate Morrell sufficiently todeter 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 recordingrestricted work activity is considered appropriate. A total penalty of $1,000 for theCitation No. 5 violations not related to restricted work activity also is consideredappropriate.The Secretary failed to propose any penalties forthe other than serious violations alleged in Citation No. 6 or for items C-1 and C-2 ofCitation No. 5. But that failure does not preclude assessing some penalty for the othernon-serious violations of Citation No. 5. The Commission has consistently held that it mayassess 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 penaltiesthan those proposed by the Secretary, no element of unfairness is involved when penaltieshigher than those proposed are assessed.It would be inappropriate not to assess somepenalty for the Citation No. 5 other than serious violations of the recordkeepingstandard, particularly after finding that Morrell willfully violated that standard inanother respect. Accordingly, a $1,000 total penalty for the other than serious violationsin Citation No. 5 is considered appropriate.Findings of FactAll findings of fact relevant and necessary to adetermination of the contested issues have been found specially in the above decision. SeeRule 52(a) of the Federal Rules of Civil Procedure.All proposed findings of fact or conclusions oflaw inconsistent with this decision are denied.Conclusions of Law1. The issuance of Citations 5 and 6 was barredby Section 9(c) of the Act.2. Column 2 or Column 9 of OSHA Form 200 must bechecked whenever any recordable work related injury or illness results in days away fromwork or days of restricted work activity or both.3. A day away from work does not include the dayof injury or the day of the onset of illness. A day of restricted work activity does notinclude the day of injury or the day of the onset of the illness.4. Column 5 or Column 12 of OSHA Form 200 must bechecked whenever any recordable work related injury or illness results in days ofrestricted work activity.5. Column 6 or Column 13 of OSHA Form 200 must bechecked if an injury or illness results in restricted work activity on the day of injuryor the day of the onset of the illness and there are no days away from work or days ofrestricted work activity.6. Column 6 or Column 13 of OSHA Form 200 shallnot be checked whenever a recordable work related injury or illness results in days awayfrom work or days of restricted work activity. 7. The record establishes by a preponderance ofthe evidence that Morrell deliberately and willfully violated ? 1904.2(a) whenever itfailed to check Column 2 and Column 5 or Column 9 and Column 12 and a recordable workrelated injury or illness resulted in days of restricted work activity.8. Morrell willfully violated ? 1904.2(a) withrespect 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 apreponderance of the evidence that Morrell willfully violated ?1904.2(a) when it failedto record days away from work.10. Morrell’s failures to properly record days away from work constitute other thanserious violations of the Act.11. Morrell committed other than seriousviolations of ? 1904.2(a) with respect to the following alleged violations under CitationNo. 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) withrespect 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 forMorrell’s willful violations under Citation No. 5 is appropriate.14. A maximum total penalty of $1,000 forMorrell’s other than serious violations under Citation No. 5 (excluding 1(c)-1 and 1(c)-2)is appropriate.ORDERBased on the findings of fact, conclusions oflaw, and the entire record, it is ORDERED:1. Citation No. 5 and Citation No. 6, issuedApril 23, 1987, are VACATED.James A. Cronin, Jr. Judge, OSHRCAPPENDIX 1? 1904.2 Log and summary of occupationalinjuries and illnesses. (a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintainin each establishment a log and summary of all recordable occupational injuries andillnesses for that establishment; and (2) enter each recordable injury and illness on thelog and summary as early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For this purpose form OSHANo. 200 or an equivalent which is as readable and comprehensible to a person not familiarwith it shall be used. The log and summary shall be completed in the detail provided inthe form and instructions on form OSHA No. 200.\u00a0SECRETARY OF LABOR, Complainant, v. JOHN MORRELL& CO., SIOUX FALLS PLANT, and its successors, Respondent. UNITED FOOD & COMMERCIALWORKERS, LOCAL 304A, AFL-CIO, Authorized Employee Representative.OSHRC DOCKET NO. 88-2522FINAL ORDERThe parties have filed a Settlement Agreement inthis matter. The content of that agreement is incorporated by reference in this Order.The Settlement Agreement is hereby approved andshall be deemed a final order of the Commission.This order is expressly contingent upon an orderapproving this Settlement Agreement by the Commission in OSHRC Docket No. 871-0635involving the same parties.It is SO ORDERED.Benjamin R. LoyeJudge, OSHRCDated: April 20, 1990SECRETARY OF LABOR, Complainant, JOHN MORRELL & CO., SIOUX FALLS PLANT, and itssuccessors, Respondent. UNITED FOOD & COMMERCIAL WORKERS, LOCAL 304A, AFL-CIO,Authorized Employee Representative.OSHRC DOCKET No. 88-2522FINAL ORDERThe parties have filed a Settlement Agreement inthis matter. The content of that agreement is incorporated by reference in this Order.The Settlement Agreement is hereby approved andshall be deemed a final order of the Commission.This order is expressly contingent upon an orderapproving this Settlement Agreement by the Commission in OSHRC Docket No. 87-0635involving the same parties.It is SO ORDERED.Benjamin R. LoyeJudge, OSHRCDated: April 20, 1990FOOTNOTES: [[1\/]] See Appendix 1.”