“SECRETARY OF LABOR,Complainant,v.JOHN MORRELL & CO.,SIOUX FALLS PLANT, and itssuccessors,Respondent,UNITED FOOD & COMMERCIALWORKERS, LOCAL 304A, AFL-CIO,AuthorizedEmployeeRepresentative.OSHRC Docket Nos. 87-0635 & 88-2522_ORDER _The Occupational Safety and Health Review Commission has received theparties’ Motion for Consolidation and Settlement Agreement in thecaptioned action. Docket No. 87-635 is before the Commission pursuant toDirections for Review by Former Commissioner Linda L. Arey and FormerChairman E. Ross Buckley. Docket No. 88-2522 is before the Commissionpursuant to a Direction for Review by Chairman Edwin G. Foulke, Jr.The parties’ Motion for Consolidation for purposes of settlement hasbeen considered pursuant to Commission Rule 9, 29 C.F.R. ? 2200.9. Sinceboth matters have common parties and involve the same overall worksite,the Motion to Consolidate Docket Nos. 87-635 and 88-2522 is granted.Having reviewed the Settlement Agreement, attached hereto, it is foundthat the Agreement disposes of all issues pending before theOccupational Safety and Health Review Commission in this matter.Therefore, the Settlement Agreement is Approved.Accordingly, the Motion to Consolidate is granted and the SettlementAgreement is approved pursuant to a delegation of authority to theExecutive Secretary, 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg.7255 (1979). The terms of the Settlement Agreement are incorporated aspart of this Order. The citation items are affirmed, modified, orvacated in accordance with the terms of the Settlement Agreement.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: April 27, 1990 ————————————————————————ELIZABETH DOLE,SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant,v.JOHN MORRELL & CO.,SIOUX FALLS PLANT, and itssuccessors,Respondent.UNITED FOOD & COMMERCIAL WORKERS,LOCAL 304A, AFL-CIO,AuthorizedEmployeeRepresentative.OSHRC Docket Nos. 87-0635 and 88-2522Region VII_MOTION FOR CONSOLIDATION AND SETTLEMENT AGREEMENT_The parties, JOHN MORRELL & CO., SIOUX FALLS PLANT (\”Morrell\” or \”theCompany\”) and its successors; the SECRETARY OF LABOR, UNITED STATESDEPARTMENT OF LABOR (\”the Secretary\” or \”OSHA\”); and the UNITED FOOD &COMMERCIAL WORKERS, LOCAL 304A, AFL-CIO (\”the Union\”), by theirundersigned representatives, have reached a full and complete settlementof OSHRC Docket Nos. 87-0635 and 88-2522 under 29 C.F.R. ? 2200.100, theOccupational Safety and Health Review Commission’s (\”Commission\”)procedural rule on settlement. Accordingly, the parties state as follows:A. _Jurisdiction\/Amendments\/Procedural Matters_1. The Commission has jurisdiction of these matters under 29 U.S.C. ?659(c), Section 10(c) of the Occupational Safety and Health Act of 1970,29 U.S.C. ?? 651-678 (\”the Act\”).2. The parties move, pursuant to the Commission Rule at 29 C.F.R. ?2200.9, that these matters, OSHRC Docket Nos. 87-0635 and 88-2522, beconsolidated for purposes of settlement. The two matters have commonparties and involve the same overall worksite.3. The Secretary amends the Citations and proposed penalties in OSHRCDocket Nos. 87-0635 and 88-2522 as follows:(a) The characterization of Citation No. 5 in OSHRC Docket No. 87-0635is amended to \”other\” than serious, and the proposed penalty for OSHRCDocket No. 87-0635 is amended to $0.00.(b) Citation No. 1 in OSHRC Docket No. 88-2522 is amended to delete allcharacterizations. The total proposed penalty for OSHRC Docket No.88-2522 is amended to $990,000. Citation No. 1 is amended further by theterms of this Agreement as a whole (hereinafter \”Citation No. 1\”). Inaddition to the proposed penalty, as amended, Morrell will give a grantto the National Institute for Occupational Safety and Health (\”NIOSH\”)in the amount of $260,000 for the continuing study of musculoskeletalinjuries by NIOSH.(c) Within thirty days of the Commission’s Final Orders in thesematters, 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 thegrant to NIOSH also set forth at Paragraph 3(b) above. The remaining onehalf of the proposed penalty, as amended, shall be paid within sixmonths of the date of the first payment to OSHA referred to in thisParagraph 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 andentry of the Final Orders in these matters.5. The parties agree that this Settlement Agreement shall become a FinalOrder of the Commission. Included with this Agreement is a draft orderapproving this settlement. The form and content of this draft order andthis Agreement have been negotiated by the parties. The parties herebyconsent to the entry of this draft order so that the litigation of thesematters may be brought to an end.6. Morrell withdraws its Notice of Contest to the Citation in OSHRCDocket No. 88-2522. This withdrawal, however, is made solely tofacilitate the settlement of this matter. It does not qualify and is notto be interpreted as being inconsistent with Paragraph 32 below.7. For purposes of service and notice, Morrell certifies that theoriginal Notices of Contest as well as all pleadings in OSHRC DocketNos. 87-0635 and 88-2522, including a copy of this Agreement, have beenserved on affected employees at the Sioux Falls Plant in accordance withthe Commission Rule at 29 C.F.R. ? 2200.7.8. There are no items in either OSHRC Docket No. 87-0635 or OSHRC DocketNo. 88-2522 that remain to be decided by the Commission.B. _Steps to Address the Ergonomic Conditions in Citation No. 1, OSHRCDocket No. 88-2522 _9. _General Recognition and Definitions._(a) Morrell and OSHA recognize that cumulative trauma disorders areoccupational illnesses in the meat packing industry, as well as in otherindustries with similar types of jobs. The parties also recognize thatmethods to materially reduce or eliminate the ergonomic stressorsrelated to CTD can be complex. Such methods may require the applicationof a number of different control technologies such as engineeringcontrols to materially reduce or eliminate job-related ergonomicstressors related to cumulative trauma disorders, _e.g._ force,position, repetition and vibration; employee and supervisory trainingand education; early recognition of the problem; early and propermedical diagnosis, treatment and care follow-up; and administrativecontrols such as job enlargement, rotation and rest pauses. Theergonomic program set forth in this Agreement is intended to materiallyreduce or eliminate the ergonomic stressors related to the cumulativetrauma disorders that may arise from the Production Jobs, as defined below.(b) The term \”cumulative trauma disorders\” (\”CTD\”) is defined inAttachment B appended to this Agreement and includes those medicaldisorders of the upper extremities defined by specific criteria andassociated with certain work activities (such as repetitive motion).Examples of these types of disorders include tenosynovitis, carpaltunnel syndrome, cubital tunnel syndrome, stenosing tenosynovitis of thefingers, and epicondylitis.(c) In addition to those 171 production jobs that are the subject ofCitation No. 1, Morrell estimates that there are approximately 700 otherproduction jobs in the beef and pork production and processing areas atits Sioux Falls Plant. In this Agreement, these approximately 871 jobsshall be referred to collectively as \”Production Jobs\”.(d) The 171 Production Jobs that are the subject of the Citation No. 1shall be referred to collectively as the \”Cited Jobs\” and are addressedin this Section B of the Agreement. The approximately 700 remainingProduction Jobs shall be referred to collectively as \”Non-Cited Jobs\”and are addressed in Section C of this Agreement.(e) The Cited Jobs shall be divided into two categories: (1) for 66jobs, which are listed in Attachment A appended to this Agreement,Morrell, with the advice and guidance of the the Ergonomic Consultant,is to conduct an analysis to determine whether those jobs exposeemployees to ergonomic stressors related to CTD (\”Attachment A Jobs\”);and (2) the remainder of the Cited Jobs are jobs which have beenidentified by OSHA in Citation No. 1 as jobs that expose employees toergonomic stressors related to CTD (\”Ergonomic Stressor Jobs\”).10. _Ergonomic Consultant_. Morrell has retained or employed one or moreperson(s) (or company) qualified by education and experience aboutergonomics (\”Ergonomic Consultant\”) and has begun a program at its SiouxFalls Plant to address ergonomic stressors related to the various typesof upper extremity cumulative trauma disorders. Within thirty days ofthe entry of the Commission’s Final Order in this matter, Morrell willconfirm that an Ergonomic Consultant will be retained for a period of atleast four years from the date of the Commission’s Final Order in thismatter. The Ergonomic Consultant will assist Morrell in performing anergonomic analysis of certain jobs and in developing and implementing anergonomic program as discussed in this Agreement.11. _Attachment A Jobs – Determining Ergonomic Stressors Related toCTD_. The program for analysis of the Attachment A Jobs shall proceed asfollows:(a) Recognizing that the ergonomic stressors related to CTD may varyfrom Attachment A Job to Attachment A Job, Morrell, with the advice andguidance of the Ergonomic Consultant, will conduct both an incidentanalysis and an ergonomic analysis for such Attachment A Jobs as setforth in subsections (i) through (iv) below:(i) The incident analysis for each specific Attachment A Job willinclude an evaluation of the information contained in the followingsources: OSHA 200 Logs, OSHA 101 forms, employee complaints, medicalrecords and medical surveillance data maintained by Morrell, andemployee input (including input from employees who hold the Attachment AJob being studied).(ii) The ergonomic analysis for CTD for each specific Attachment A Jobwill include an evaluation of the ergonomic stressors for that jobincluding anthropometry, posture, force, tools, gloves, vibration,frequency of action, as well as time between actions and relatedconsiderations. The ergonomic analysis also will include the use ofsurvey tools such as photography (including videotape), the taking ofmeasurements (e.g. range of motion, etc.), and employee input (includinginput from employees who hold the Attachment A Job being studied).(iii) The analyses described in this Paragraph are to be completedwithin twelve months of the date of the Commission’s Final Order in thismatter. Morrell specifically notes that the information generated bythese analyses may be proprietary and confidential, and thus, suchinformation is subject to Paragraph 30 of this Agreement.(iv) Upon completion of the analyses described in this Paragraph, eachAttachment A Job determined by Morrell, with the advice and guidance ofthe Ergonomic Consultant, to present an ergonomic stressor related toCTD shall be classified, for purposes of this Settlement Agreement, asan Ergonomic Stressor Job (as defined in this Agreement).(b) The Attachment A Jobs that are determined to be Ergonomic StressorJobs shall be subject to the provisions of this Agreement relating toErgonomic Stressor Jobs. Morrell will advise the Secretary and the Unionhow those jobs are merged in the plan or methodology for ErgonomicStressor Jobs in the next status report.12. _Ergonomic Stressor Jobs – Evaluating and Testing OSHA’s RecommendedAbatements_. With respect to the Ergonomic Stressor Jobs, Morrell, withthe advice and guidance of the Ergonomic Consultant, will design andimplement an ergonomic program, which shall be in writing, to test andevaluate the OSHA recommended abatements in Citation No. 1 as follows:(a) Within six months of the date of the Commission’s Final Order inthis matter, the Ergonomic Consultant (1) will review the specific OSHArecommended abatements in Citation No. 1 for each of the ErgonomicStressor Jobs; (2) will review and evaluate those ergonomic improvementsMorrell has implemented or proposed as part of its ergonomic program;(3) will conduct literature and manufacturing searches for tools,devices or other items that may reduce ergonomic stressors related toCTD; and (4) at a time and place convenient to all parties, will have ameeting with representatives from Morrell, OSHA, and the Union to giveOSHA an opportunity to explain its findings and recommended abatements.Morrell then will identify, in the next status report, those ErgonomicStressor Jobs which have been abated and those in which the ergonomicstressor identified in Citation No. 1 remains to be abated.(b) Thirty days after the time period set forth in the step described inParagraph 12(a), Morrell will begin to evaluate and test the specificOSHA recommended abatements for each particular Ergonomic Stressor Jobas follows:(i) Morrell will evaluate all of the OSHA recommended abatementsspecifically identified for a specific Ergonomic Stressor Job inCitation No. 1. Those recommended abatements specifically identified inCitation No. 1 for a specific Ergonomic Stressor Job also will betested, if Morrell, with the advice and guidance of the ErgonomicConsultant, determines in its evaluation that a particular recommendedabatement is feasible. For those OSHA recommended abatements thatMorrell determines are not feasible, Morrell will state the reason orreasons for its determination in the status reports described inParagraph 23 of this Agreement. If OSHA disagrees with Morrell’sdetermination, OSHA and Morrell will follow the procedures set forth inParagraph 15 of this Agreement.(ii) As part of the testing procedure, and where appropriate,experimental work stations will be used and employee input sought andconsidered.(iii) For those OSHA recommended abatements implemented, Morrell, withthe advice and guidance of the Ergonomic Consultant, also will develop amethod for determining the efficacy of the OSHA recommended abatementsto materially reduce or eliminate ergonomic stressors related to CTD.(iv) Morrell is first to begin testing of those OSHA recommendedabatements involving engineering controls. If those engineering controlsprove not to be feasible in materially reducing or eliminating ergonomicstressors related to CTD, Morrell then will test feasible OSHArecommended abatements involving administrative controls, including theappropriate combination of one or more of job rotation or enlargement orreduction of repetitive motion per employee per job. If Morrell tests orimplements job rotation as a means of addressing ergonomic stressors, anergonomic analysis of all jobs contained in the rotation must have beencompleted prior to implementation. The jobs to be within the ergonomicrotation are to show decreased and\/or different physical demands.Nothing in this paragraph prohibits Morrell from testing administrativecontrols prior to, or in conjunction with, testing engineering controls.13. _Implementation of the OSHA Recommended Abatements_.As this ergonomic program progresses, those OSHA recommended abatementsthat are feasible in materially reducing or eliminating ergonomicstressors related to CTD will be implemented by Morrell. Morrell isfirst to begin implementation of those feasible OSHA recommendedabatements involving engineering controls. If those engineering controlsprove not to be feasible in materially reducing or eliminating ergonomicstressors related to CTD, Morrell then will begin to implement thosefeasible OSHA recommended abatements involving administrative controls.Although Morrell will implement those methods as expeditiously aspossible, the implementation shall be completed within three years afterthe date of the Commission’s Final Order.14. _Further Analysis of the Ergonomic Stressor Jobs_. Nothing in thisAgreement precludes Morrell or the Ergonomic Consultant from conductinga further analysis of the Ergonomic Stressor Jobs or recommending,testing or evaluating other potential methods of materially reducing oreliminating ergonomic stress. If OSHA’s recommended abatements for theErgonomic Stressor Jobs do not materially reduce or eliminate ergonomicstressors related to CTD for such jobs, Morrell will conduct suchfurther ergonomic analysis as may be necessary and test and implementfeasible methods of materially reducing or eliminating such ergonomicstressors related to CTD.15. _Procedure for Resolving Disputes_. If the Secretary disagrees withMorrell’s determination of (1) whether the Attachment A Jobs areErgonomic Stressor Jobs; (2) those Ergonomic Stressor Jobs which havebeen abated and those Jobs in which the ergonomic stressor identified inCitation No. 1 remains to be abated; or (3) the feasibility of the OSHArecommended abatements for the Ergonomic Stressor Jobs, she will stateher points of disagreement, and the reason or reasons she disagrees, inwriting so that Morrell can review them with the Ergonomic Consultant.The Secretary and Morrell, with input from the Union, will then engagein good faith discussions to resolve the disagreement. This paragraph isnot intended to limit the Secretary’s right to use, as appropriate,enforcement methods provided by the Act.16. _Employee Input_. Employee input on ergonomic or CTD issues(including potential methods of materially reducing or eliminatingergonomic stress) is, and will continue to be, considered and encouragedthrough the Company’s Joint Employee\/Management Safety Committee,through the various departmental safety meetings, and through theemployee suggestion system.C. _Steps to Address Ergonomic Conditions At the Sioux Falls Plant OtherThan Those in Citation No. 1, OSHRC Docket No. 88-2522_17. _Ergonomic Program for Non-Cited Jobs_. Morrell, with the assistanceof the Ergonomic Consultant, also will evaluate the approximately 700Non-Cited Jobs to determine which, if any, of those jobs exposeemployees to ergonomic stressors related to CTD. The ergonomic programfor the Non-Cited Jobs will proceed as follows:(a) _Incident Analysis_. Within one year after the date of theCommission’s Final Order, Morrell will conduct an incident analysis ofthe Non-Cited Jobs. The incident analysis will include an evaluation ofthe information contained in the following sources: OSHA 200 Logs, OSHA101 forms, employee complaints, medical records and medical surveillancedata maintained by Morrell, including available data derived fromAttachment B, and employee input.(b) _Ergonomic Analysis and Testing_. Thirty days after the time periodset forth in Paragraph 17(a) above, Morrell will develop a plan for theergonomic analysis of the jobs, the evaluation of any ergonomicimprovements already in place or proposed, the recommendation of methodsto materially reduce or eliminate CTD and the testing and evaluation ofthose methods as follows:(1) For each specific Non-Cited Job, an ergonomic analysis will beperformed which will include an evaluation of the ergonomic stressorsfor that job including anthropometry, posture, force, tools, gloves,vibration, frequency of action, as well as time between actions andrelated considerations. The ergonomic analysis also will include the useof survey tools such as photography (including videotape), the taking ofmeasurements (e.g. range of motion, etc.), and employee input. Morrellspecifically notes, however, that information generated by the ergonomicanalysis may be proprietary and confidential, and thus, such informationis subject to Paragraph 30 of this Agreement.(2) For those Non-Cited Jobs for which an ergonomic program is deemednecessary, Morrell will test and evaluate methods that may materiallyreduce or eliminate ergonomic stressors related to CTD. Morrell willfirst begin testing of feasible engineering controls. If suchengineering controls prove not to materially reduce or eliminateergonomic stressors related to CTD, feasible administrative controlswill be tested. Such controls to be tested and evaluated will include,depending upon the type of ergonomic stressor:(a) Engineering controls, such as re-orientation of knife or toolhandles, use of adjustable fixtures or rotating cutting tables toprovide for easier manipulation of meat, use of adjustable work stationsor other devices (such as delivery bins) to accommodate height and reachlimitations of workers.(b) Engineering controls, such as automation, use of mechanical tools(_e.g._ those which aid in removing bones or separating meat frombones), use of power tools, maintenance of sharp cutting edges, use ofadjustable fixtures that allow movements to be made inergonomically-sound postures.(c) Monitoring the whizard knives to ensure that they are maintained inaccordance with the manufacturer’s instructions in order to avoidexcessive vibration.(d) Morrell will use its best efforts to ensure that stored meatrequiring hard cutting is not frozen._Administrative Controls_(a) Administrative controls such as the appropriate combination of oneor more of job rotation or enlargement or reduction of repetitive motionper employee per job or, if necessary, rest pauses, will be tested. IfMorrell tests or implements job rotation as a means of addressingergonomic stressors, an ergonomic analysis of all jobs contained in therotation must have been completed prior to implementation. The jobs tobe within the ergonomic rotation are to show decreased and\/or differentphysical demands; or,(b) For those jobs that have an ergonomic stressor related to CTD, newor reassigned employees will be provided on-the-job training. Thetraining will continue until the divisional trainer or departmentsupervisor determine either that such new or reassigned employee has therequisite ability to perform the job with proper technique or, that,notwithstanding the training, the employee does not have such ability.If such employee is determined to have such ability for the job, he orshe will be required to pull full count.(3) Those Non-Cited Jobs for which no ergonomic program is deemednecessary, 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 forNon-Cited Jobs progresses, those feasible methods tested and evaluatedpursuant to Paragraph 17 and found to materially reduce or eliminateergonomic stressors related to CTD will be implemented by Morrell.Morrell first will begin to implement those engineering controls thatare feasible. If such engineering controls prove not to materiallyreduce or eliminate ergonomic stressors related to CTD, Morrell willbegin to implement those administrative controls that are feasible.Morrell will implement such feasible methods of materially reducing oreliminating ergonomic stressors related to CTD as expeditiously aspossible, and all such methods will be implemented within four yearsafter the Commission’s Final Order in this matter.19. _Education Program_. Morrell, with the advice of the ErgonomicConsultant, will develop and implement an education program at its SiouxFalls Plant. This education program will be developed within four (4)months after the date of the Commission’s Final Order in this matter andwill begin promptly thereafter until completed as set forth below. Theprogram, which will be at least 1 hour in length, will be designed toeducate its employees (including its medical personnel), supervisors,engineers, and other plant management personnel on the medical aspectsof CTD such as the early signs of CTD, the range of disorders (_i.e._,what they are), causes of these disorders, means of prevention, and theimportance of early reporting of symptoms of CTD. The program willinclude a description of the ergonomic program and the ergonomic worktaking place in the Sioux Falls Plant so that employees will be familiarwith it. The program also will include a portion designed to educateemployees about knife maintenance, tool preparation and the postures orother activities that may create an ergonomic stressor related to CTD intheir jobs. All new employees will be given such education duringorientation. Each month, groups of those employees then holding Cited orNon-Cited Jobs (with priority being given to those in Cited Jobs) willbe provided such education until all of the approximately 2000 suchemployees have been educated. All such employees will be provided thiseducation within twelve months of the date of the Commission’s FinalOrder in this matter. Thereafter, each calendar year for the term ofthis Agreement, such employees will receive refresher training once eachquarter as part of the regularly scheduled departmental safety meetings.At least one such quarterly meeting a year will be at least thirty (30)minutes in length.20. _Training Program_. Within six months from the date of theCommission’s Final Order in this matter, Morrell, with advice of theErgonomic Consultant, will establish a training program for new andreassigned workers at Morrell’s Sioux Falls, South Dakota plant who areto begin working in Production Jobs involving the use of knives as follows:(a) After orientation, which includes the education program described inParagraph 19, each such new or reassigned employee will receive ademonstration of the applicable knife and equipment to be used as wellas classroom training on the following subjects:(1) knife care and maintenance;(2) hazards of improper knife handling;(3) types of knives associated with individual work duties; and,(4) tools and devices associated with individual work duties.(b) New employees also will be familiarized with applicable safetyprocedures including glove and equipment rules. The classroom trainingwill be conducted by divisional trainers who will be managementpersonnel and who will be excluded from production or productionsupervision responsibilities during the training periods set forth inthis Paragraph 20.(c) Following the classroom training, such new or reassigned employeesshall be assigned to work with a qualified co-employee who will provideon-the-job training. This on- the-job training will be monitored by thedivisional trainer and the departmental supervisor at regular intervals.During this on-the-job training, the divisional trainer will work withemployees on the production line or, if needed, in additional classroomtraining. Each such new or reassigned employee, at his or her option,may request his\/her divisional trainer for more classroom training. Thetraining will continue until the divisional trainer and departmentsupervisor determine either that such new or reassigned employee has therequisite ability to perform the job with proper technique or, that,notwithstanding training, the employee does not have such ability.During the on-the-job training period, the co-employee shall not beexpected to meet the same production standard as other qualifiedemployees on the same job that do not have training responsibilities. Ifsuch new or reassigned employee is determined to have such ability forthe job, he or she will be required to pull full count.(d) The training described above will be designed to emphasize the needto 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 final order, Morrell willretain a medical consultant(s) knowledgeable about CTD to develop amedical management program for work-related CTD at the Sioux Falls Plant(\”Medical Consultant\”). Morrell agrees to retain the Medical Consultantfor its Sioux Falls Plant for at least four years from the date of theCommission’s Final Order in this matter.(b) Attachment B, which is appended to this Agreement and incorporatedinto it by reference, sets forth the basic medical management programthat Morrell will implement and the times by which it will be implemented.D. _Sioux City, Iowa, Plant_22. _State of Iowa Agreement_. Pursuant to an agreement with the Stateof Iowa, Morrell has developed an ergonomic program for its Sioux City,Iowa plant. Morrell has been implementing its ergonomic program at SiouxCity. Outside the scope of any abatement obligation under this Agreementwith the Secretary, however, Morrell intends to use an ergonomic programoutlined in this Agreement, as necessary, as part of its Sioux Cityergonomic program. It is Morrell’s intent to meet with the State of Iowato execute an agreement similar to this Agreement. The State of Iowa isencouraged to honor the terms of this Agreement.E. _Reports Regarding Ergonomic and Medical Management Programs_23. Morrell will complete status reports on the programs at the SiouxFalls Plant set forth in this Agreement quarterly for two years andsemi-annually thereafter until the Agreement is completed. Such statusreports will be completed within 30 days of the end of each period andwill indicate the work completed in the immediately past period and thework which it anticipates completing in the upcoming period. The firstreporting period will begin as of the date of the Commission’s FinalOrder in this matter. Morrell will make available to OSHA’s BismarkRegional Administrator any programs, reports, and analyses preparedpursuant to Paragraphs 11(a), 14, 17, and 23 of this Agreement andparagraph 4(d)(1)(b)(1)(b) of Attachment B, but all subject to theconfidentiality provisions in Paragraph 30 below. Except for thosedocuments and other information that are confidential or proprietary(and thus subject to the provisions of Paragraph 30), Morrell also willmake available such programs, reports and analysis to the President ofthe Local 304A. OSHA’s and the Union’s contact at Morrell’s Sioux Fallsplant will be the Sioux Falls’ plant manager.F. _Steps to Address the Conditions Cited in OSHRC Docket No. 87-0635 -Recordkeeping_24. (a) Morrell will correct the entries in its OSHA 200 Logs for thoseitems listed in Paragraphs 8 and 11 on pages 37 and 38 of theAdministrative Law Judge’s decision in OSHRC Docket No. 87-0635. Thisstep will be completed within thirty days of the Commission’s FinalOrders in these matters.(b) Morrell agrees to continue to maintain its occupational injury andillness recordkeeping practices in accordance with the Act, therecordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLSGuidelines, as the same may be amended from time to time.25. Morrell will undertake an audit of the occupational injury andillness recordkeeping practices at its Sioux Falls and Sioux CityPlants, by doing the following:(a) Undertake an examination of relevant records in its possession andensure that OSHA-required records going back to January 1, 1988, are incompliance with the Act, the regulations at 29 C.F.R. Part 1904, theOSHA Form 200 Log, and the Revised Recordkeeping Guidelines issued bythe United States Department of Labor, Bureau of Labor Statistics, inApril 1986, which together shall be referred to here as \”OSHArecordkeeping requirements.\” The Secretary agrees that, during thisexamination period by Morrell, and for any item properly placed on theOSHA Form No. 200 Log (including the completion of the OSHA Form No.101) as a result of this examination, Morrell will not be cited forallegedly failing to comply with OSHA recordkeeping requirements.(b) Institute, at its Sioux Falls, South Dakota; and Sioux City, Iowaplants, a training program in OSHA recordkeeping requirements to trainthose Morrell employees having responsibility for OSHA recordkeeping.The training program will be conducted by an individual(s) knowledgeablein the OSHA recordkeeping requirements and will include instruction onOSHA recordkeeping regulations and guidelines.(c) The actions discussed in Paragraphs 25(a) and 25(b) will becompleted within six months of the Commission’s Final Orders in thesematters.G. _Entry Onto Company Facilities_26. During the term of this Agreement, Morrell will permit OSHAreasonable entry into, and reasonable inspection of, its Sioux FallsPlant to determine compliance with this Agreement (\”monitoringinspections\”) and with the Act. Morrell will not require a warrant forany such reasonable entry or inspection.27. The Secretary agrees that OSHA will not issue citations nor take anyother enforcement action against Morrell for any ergonomic conditionsidentified in the programs, reports, analyses, or monitoring inspectionsset forth in this Agreement, provided such conditions are being or willbe addressed in good faith in accordance with this Agreement (includingcorrection, if necessary).28. OSHA agrees that, if Morrell is implementing this Agreement, OSHAshall not conduct a general schedule inspection relating to ergonomicconditions in Morrell’s plant during the implementation period of thisAgreement. 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 abatementperiod, if it discovers, in the course of a monitoring inspection, anycondition it believes may be a violation, OSHA will so inform Morrellbefore completing the monitoring inspection.H. _General Provisions_29. _Extensions of Time_. The Secretary and Morrell shall confer in goodfaith with the intent of achieving agreement on some reasonableextension or extensions of the periods set forth in this Agreement, ifsuch should become necessary. The language in this paragraph, however,is not intended to supercede the Commission Rule at 29 C.F.R. ? 2200.37,which deals with petitions for modification of the abatement period.30. _Treatment of Confidential Material_. All documents or otherinformation 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 identifythe document, information, or portion thereof, that contains proprietaryor confidential material. No document or information that is proprietaryor confidential shall be made available, directly or indirectly, to thepublic (including the Union) in any form whether by summary, analysis orverbatim. All documents or other information that contain proprietary orconfidential information will be made available to the Union by Morrellonly after the execution of a separate confidentiality agreement.31. _Discrimination_. Morrell agrees to continue to comply with Section11(c) of the Act, 29 U.S.C. ? 660(c), which prohibits discriminationagainst any employee because of the exercise of any rights afforded bythe Act and that Section 11(c) applies to the activities undertakenpursuant to this Agreement. Such activities include reasonable requeststo visit the medical facilities (as well as actual visits to suchfacilities), being diagnosed as having a form of CTD, and undergoingmedical treatment for a diagnosed form of CTD. This language does not inany way create any duty or obligation on the part of Morrell beyondthose duties or obligations that may already exist under otherapplicable federal or state discrimination laws for regulations.32. _Compromise of a Disputed Claim_. It is understood and agreed by theparties that this Settlement Agreement constitutes a compromise of adisputed claim. Morrell specifically denies any and all allegations thatit violated the Act. Nothing in this Agreement, including the Agreementitself, its execution, as well as any Final Order, is an admission orevidence, nor is it to be construed as an admission or treated asevidence, of any fact or of any violation of the Act by Morrell otherthan in a proceeding brought by the Secretary under the Act. Inparticular, nothing in this Agreement is to be construed as an admissionby Morrell that a specific employee’s CTD, is work-related. For purposesof proceedings brought by the Secretary under the Act, the parties agreeto treat the Citation in OSHRC Docket No. 88-2522, as an uncontestedcitation. This Agreement is being entered into solely to avoid furtherlitigation and expense to the parties.33. _Term of Agreement_. This Agreement shall be in effect for a periodof four years from the date of the Commission’s Final Order in thesematters. The Agreement will remain in effect thereafter unless and untileither Morrell or OSHA gives the other party sixty days notice that theAgreement is cancelled.Respectfully submitted,JOHN MORRELL & CO., SIOUX SECRETARY OF LABOR, UNITEDFALLS PLANT STATES DEPARTMENT OF LABORBy: By: Alan C. McMillan Deputy OSHA AdministratorRobert C. GombarJanet L. MillerJONES, DAY, REAVIS & POGUECounsel for RespondentSolicitor of LaborRegional SolicitorAttorneyCounsel for ComplainantAttorneyCounsel for ComplainantAUTHORIZED EMPLOYEE REPRESENTATIVE UFCWBy:James R. Lyons, PresidentLocal 304AUnited Food & Commercial Workers Union, AFL-CIO, CLCNicholas W. Clark, Esq.UNITED FOOD AND COMMERCIAL WORKERS,INTERNATIONAL UNION, AFL-CIOCounsel for Authorized Employee RepresentativeATTACHME \tNTA_BEEF FAB_Clean plate bones \t_BEEF KILL_Split backChine saw operators \tPregutExtension meat workers \tBackerAitch boner \tRod weasandHang rounds \tShacklerLoin saw operator \tHind saw operator \t_BEEF BY_Jet net chuck \tPaunch openerClean brisket bone \tChisel headsShort rib bones \tDrop gooseneck \t_BEEF COOLER_Trim and pull flanks \tTrim beefTrim strips \tBone plates \t_PORK CUT_Trim bottom butts \tLabel vac pacTrim chucks \twipe vac pacBone skirts \tFeed vac pacBone steak tails \tCut of hind foot\tHog drop_HOG KILL_ \tScale, ice and loin closeNeck scrubber \tOpen hogs \t_HAM BONE_Skin foreheads \tRoll out bone-in shankStun hogs \tRemove rags button glandAphis helper (final rail) \tGrade honey hamDrop bungs \tRemove finger and buttStick hogs \tPinch toes \t_GREEN GRADE _Neck trimmer \tBelly graderPut in spreader hook \tAphis helper (trimmer) \t_CANNING_Aphis helper (hog insp., \tLids on mold\tSpring molds_PORK TRIM _ \tSave loaf wrapper \t_CURING_Save lean in fat \tWash vatsHigh bench inspector \tMake box and inspect trim \t_SMOKE MEAT WASH_\tcaging hams_SAUSAGE COOLER_ \tCut rotomatic operator \t_SMOKE MEAT PAC_902 line operator \tBaggerBox pre pac \tRotomatic operator \tSemi-rigid operator \tPack weiners \tMaraflex operator \tPeel (cited as \”pull\”) weiners \t_ATTACHMENT B_1. \”Cumulative trauma disorder\” is a term that does not indicate aparticular medical entity because it is not characterized by a specificset of clinical, laboratory or pathological findings. The term, however,has been used to group a collection of symptoms of the upper extremitiesconsidered to be caused or aggravated by certain activities, some ofwhich may be work-related.The focus of the medical management program for purposes of thisAgreement will be those medical disorders of the upper extremitiesdefined by specific criteria and associated with certain work activities(such as repetitive motion) (\”CTD\”). Examples of these types ofdisorders include tenosynovitis, tendonitis, synovitis, carpal tunnelsyndrome, cubital tunnel syndrome, stenosing tenosynovitis of thefingers and epicondylitis.The goal of the medical management program developed by the MedicalConsultant is the diagnosis, prevention (including early detection) andappropriate treatment (including use of conservative modalities) of themedical conditions covered by this Attachment.2. Current employees will be surveyed to establish a baseline formeasurement of frequency of symptoms in the upper extremities.a. The Medical Consultant will develop a questionnaire directed atmeasuring frequency of symptoms in the upper extremities among thoseemployees currently holding Cited and Non-Cited Jobs.b. The questionnaire will be administered by the first aid staff to allsuch employees. The questionnaire will be drafted within 30 days afterthe Commission’s Final Order in this matter and will be administered tosuch employees within six months thereafter. The questionnaire will bereadministered annually subject to reevaluation by the Medical Consultant.C. Using the questionnaires, symptoms of diagnoses associated with CTDfor each job category will be tabulated. This tabulation will be madeavailable to the Union and to OSHA. The questionnaires will be madeavailable for use of specifically designated OSHA personnel onlypursuant to a properly drawn medical records access order, which willnot be opposed by Morrell.3. The procedures that will be followed for new employees who are tohold a Cited or Non- Cited job are:a. All such new employees currently are given a physical examination.The physical examination will be expanded to include examinations ortests of the upper extremities, as recommended by the MedicalConsultant, to complete the baseline information for each employee.b. All such new employees will be seen in Morrell’s first-aid facilityby a nurse during the first, third and sixth weeks of their employment.The nurse will review any new symptoms such employee may be experiencing.c. Such new employees exhibiting symptoms or physical signs during thetime periods described in subsection b. of this paragraph will beintegrated into the medical management program for current employeesdescribed in paragraph 4 below.4. To the extent not already in place, (and except as to the protocolsto be developed as discussed in Paragraph 5 of this Attachment B) themedical management program for current employees holding Cited orNon-Cited jobs, which will be implemented within 30 days after theCommission’s Final Order in this matter, will be as follows:a. Morrell maintains a first-aid facility staffed with one or morenurses to which each employee is to report his\/her symptoms related tothe upper extremities.b. When such employee reports his\/her new symptoms, the first aid nursewill conduct a screening examination:(1) An interim history will be taken.(2) A directed physical examination (including inspection, palpation andrange of motion) will be conducted.c. If the directed physical examination reveals physical signs of anupper extremity disorder, the employee will be referred to an authorizedtreating physician. If there are no physical signs, the nurse willfollow the protocols to be established by the Medical Consultant asdescribed in Paragraph 5 of this AttachmentB. Unless and until superseded by such protocols the following will apply:(1) For initial symptoms consistent with muscle and\/or tendon disordersand\/or nerve entrapment, therapy such as ice\/massage and\/or contrastsoaks and\/or wrapping may be used.(2) Morrell’s nurses have never used, and will not use, parafin foremployees with symptoms of carpal tunnel syndrome or tendon-relateddisorders.(3) Morrell’s nurses will not use daytime splints.d. Reevaluation procedures.(1) Morrell will institute a procedure for reevaluating the symptomaticemployee within 3 working days except that the time frames set forth inthe protocols developed or revised by the Medical Consultant pursuant toParagraph 5 of this Attachment B shall supersede the 3 working days setforth in this subsection.(a) If the employee’s symptoms are better, the findings will be recorded.(b) If the employee’s symptoms remain the same or are worse, theemployee will be referred to an authorized treating physician.(1) When the particular employee is returned to work by the authorizedtreating physician, existing or newly created Production Jobs at theSioux Falls Plant will be evaluated to the extent necessary to determinewhat job(s) is appropriate for the particular employee who has themedical restriction.(a) The ergonomic analysis conducted pursuant to the ergonomic programdescribed in this Agreement will be available and will be used, amongother things, in determining to what Production Job such employee is tobe assigned. The intent of the reassignment is to minimize the risk thatthe employee’s condition will be exacerbated and to eliminate the risk,if possible.(b) If a job has no ergonomic analysis available, the job will beanalyzed for ergonomic stressors using the factors described inParagraph 17(b)(1) of the Agreement as part of the job assignmentdetermination for such employee.(c) The medical personnel, in consultation with other appropriatemanagement personnel, will determine to which job the employee will beassigned upon return to work.(2) Morrell will institute a procedure for reevaluating, each threeworking days, those employees who are returned to work under thisprogram by the authorized treating physician and are assigned to a job.The reevaluation will continue until such symptoms subside and willinclude a review of medical restrictions, if any, for such employee’supper extremity disorder. As set forth in Paragraph 5, protocolsdeveloped (or subsequently revised) by the Medical Consultant are tosupersede the procedures (including the time frames) outlined in thisParagraph.5. The Medical Consultant, who may be assisted by other medicalpersonnel he\/she deems appropriate, will develop protocols (and revisethem) as are needed to address work-related upper extremity disorders ormay modify the program as deemed feasible and useful. The protocols,which will be consistent with, and not less rigorous than, the programoutlined this Attachment B, will include specific diagnostic criteriaand outline medical treatment, if any, to be given at Morrell’s firstaid facility for the specific disorder. The protocols will address suchareas as:a. Type of medical examination to be conducted (e.g. taking of history,type of physical examination).b. Therapy options.c. Reevaluation of employee (e.g. time for reevaluation, actions to betaken in reevaluating the employee, reevaluation after return to work).6. Under the direction of the Medical Consultant, the nurses employed byMorrell will receive training to implement the procedures outlined inthis Attachment B, including implementation of any subsequent protocalsdeveloped by the Medical Consultant.7. The procedures that will be followed when an employee has had surgeryfor an upper extremity disorder are as follows:a. The employee will not return to work until the incision has healed(i.e., the sutures have been removed and no infection is seen).(1) During this period, the authorized treating physician will refer theemployee to, or determine for the employee, a therapy (occupational orphysical therapy)\/work hardening program in Sioux Falls which theemployee must attend as ordered.b. Once the authorized treating physician determines that the incisionhas healed, s\/he then is to determine whether the employee, in his\/heropinion, has adequate protective sensitivity and motion.(1) If the employee does not have adequate protective sensitivity ormotion, s\/he is to continue with the therapy\/work hardening programuntil the authorized treating physician determines that s\/he does haveadequate protective sensitivity and motion.(2) If the authorized treating physician determines that the employeehas adequate protective sensitivity and motion, the employee may returnto work as described below.c. The authorized treating physician who releases the employee to returnto work will describe those restrictions, if any, applicable to thatemployee. The employee will progress through a work restriction programat Morrell with medical follow-up. The authorized treating physician, inconjunction with the therapist, will evaluate the progress of theemployee until s\/he is released to unrestricted duty.(1) When the particular employee is released to return to work, Citedand\/or Non-Cited Jobs at the Sioux Falls Plant will be evaluated to theextent necessary to determine what job(s) is appropriate for theparticular employee who has the medical restriction.d. This procedure is tentative and subject to further development oramendment as the program progresses. The procedure will be evaluatedyearly by the Medical Consultant (during the period of retention setforth in Paragraph 21), in conjunction with other medical personnel todetermine whether it needs revision (e.g., taking into considerationmedical advances).e. The parties agree that Morrell shall follow this procedure even ifthe employee’s own surgeon or doctor permits the employee to return towork or to his\/her previous job sooner than the periods required by thisprocedure.f. An appropriate form setting forth this procedure (or lateramendments) 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 7 will be implementedwithin 180 days after the Commission’s Final Order in this matter.8. The term \”authorized treating physician\” used in this Attachment Brefers only to those physicians who are designated by Morrell and whowill be trained by the Medical Consultant. If the employee chooses hisor her own physician in accordance with applicable state laws, Morrellwill give the employee this protocol (or, if revised, the revisedprotocol) and instruct the employee to give the protocol to his or herchosen physician. Morrell cannot designate physicians or control theirtreatment under certain applicable state laws. ————————————————————————SECRETARY OF LABOR,Complainant,v.JOHN MORRELL & COMPANY,Respondent,UNITED FOOD & COMMERCIAL WORKERS,Local 304A, AFL-CIO,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 87-0635APPEARANCES:For the Complainant:Robert S. Milgrim, Esq. Office of the Solicitor U.S. Department of LaborKansas 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 ORDERCronin, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. ? 651 et seq.; hereafter called the \”Act\”).Following an inspection of the John Morrell & Company plant at SiouxFalls, South Dakota, that commenced on September 18, 1986, the Secretaryof Labor issued Citation No. 5 and Citation No. 6 to respondent Morrell,charging willful and other than serious violations of 29 C.F.R.?1904.2(a) (the record-keeping standard).[[1\/]] The Secretary proposed atotal penalty of $690,000 or $10,000 for each of the 69 alleged willfulviolations under Citation No. 5. No penalties were proposed for thealleged other than serious violations under Citation No. 6. Respondentcontested the alleged violations under Citation Nos. 5 and 6, thedesignation of \”Willful\” under Citation No. 5, and the proposedpenalties for Citation No. 5.Following a hearing at Sioux Falls, South Dakota, the parties filedcomprehensive 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 the Act’s Statute ofLimitations at Section 9(c), 29 U.S.C. ? 658(c)?2. Whether the record establishes by a preponderance of the evidence theviolations of 29 C.F.R. ? 1904.2(a) alleged under Citation 5.3. Whether the alleged violations under Citation No. 5 are properlydesignated or characterized as \”Willful\”?4. What, if any, penalties are appropriate?STATUTE OF LIMITATIONS ISSUEIn its Answer to the Secretary’s Complaint, Morrell raises theaffirmative defense that Citations 5 and 6 issued in this case arebarred by the statute of limitations prescribed in Section 9(c) of theAct. At the close of the Secretary’s case, Morrell also moved to dismissthe case on the ground that the citations were not issued within thesix-month period specified by Section 9(c) of the Act (Tr. 503-508).Decision on this motion was reserved (Tr. 513).Section 9(c) of the Act, 29 U.S.C. ? 658(c), provides:\”No citation may be issued under this section after the expiration ofsix months following the occurrence of any violation.\”The Commission invokes the so-called \”discovery rule\” to determine whenthe Act’s statute of limitations period begins to run on violations ofthe Act. According to the Commission, the statute of limitations doesnot begin to run on a discrete violation until OSHA \”discovers orreasonably should have discovered a violation.\” Sun Ship, Inc., 12 BNAOSHC 1185 (No. 80-3192, 1985). The Commission applies this identicaldiscovery standard with respect to continuing violations. See KasparWire Works, Inc., 13 BNA OSHC 1261 (No. 85-1060, 1988).The burden of establishing the bar of Section 9(c) rests on therespondent. However, once the respondent raises the defense and acitation on its face shows that a violation is time barred by Section9(c), it is incumbent on the Secretary of Labor, if she is to avoid thebar, to demonstrate that the citation at issue was issued within thesix- month period of the statute of limitations.The Secretary first contends in her brief that OSHA began the detailedinvestigation 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, theSecretary claims that the citation was \”clearly\” issued within sixmonths of the inspection.The Secretary, however, also makes a number of other \”alternative\”arguments to avoid the bar of the statute of limitations. The Secretaryextensively argues that the alleged reporting violations in this case\”continued\” into the limitations period. In making this argument, theSecretary appears to claim that the statute of limitations on continuingrecordkeeping violations does not begin to run until the reportingviolations are correctly recorded or until the Secretary acquires actualknowledge of a failure to correctly record. This also was theSecretary’s position in Yelvington Welding Service, 6 BNA OSHC 2013,(No. 15948, 1978). As this Judge understands the Secretary’s contentionin this regard, the statute of limitations on these violations did notbegin to run until the detailed recordkeeping inspection begun onOctober 24, 1986, actually discovered the specific violations. Therecord, however, does not indicate when the Secretary actually learnedof the cited alleged violations.Finally, the Secretary also cites the Commission decision in YelvingtonWelding Service, supra, for the propositions that Section 9(c) issubject to equitable tolling principles and that this limitations perioddoes not commence to run until the Secretary knows or reasonably shouldhave known of violations.According to the Secretary, the Secretary did not know, or have reasonto know, of the violations in this case until after October 23, 1986.The authorized representative’s brief argues both that the statute oflimitations did not begin to run until October 24, 1986, and thatMorrell’s affirmative acts of fraudulent concealment served to toll thestatute of limitations until October 24, 1986.On the other hand, Morrell claims that the record establishes that theSecretary discovered or reasonably should have discovered the allegedviolations long before the 1986 inspection and, therefore, the citationswere issued after expiration of the Section 9(c) six-month period.When did the statute of limitations prescribed by Section 9(c) begin torun on the alleged violations in Citations 5 and 6 issued on April 23, 1987?According to the citations, the inspection commenced on September 17,1986, and concluded on January 28, 1987. September 17, 1986, however, isthe date OSHA applied for a search warrant to inspect Morrell’s SiouxFalls plant. The warrant was sought in response to a complaint made bythe President of Local 304A, United Food and Commercial Workers Unionand received by OSHA on August 27, 1986. This complaint containedalleged safety and health items and instances of alleged \”recordkeepingerrors.\” In the application for the warrant, OSHA’s Compliance Officer,Roger L. Hildremyr, declared that based on his evaluation of thecomplaint, \”there are reasonable grounds to believe,\” among otherthings, that violations of 1904.2(a) existed at Morrell’s plant — \”OSHA200 logs not being properly maintained.\” Although no warrant was issued,the inspection began on the next day, September 18, 1986, with theapparent 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 casesentered on the 1985 OSHA 200 log had been investigated by the week ofOctober 6, 1986, and he had concluded that there were violations withrespect to Morrell’s method of recording restricted work activity (Tr.42-45). His written narrative of the investigation states that he hadcompleted the investigation of 90 percent of the entries on the 1985OSHA 200 logs by October 6 (Tr. 42-43).Morrell’s OSHA 200 logs also have been previously examined by OSHA. InAugust of 1980, a citation was issued alleging, among other things,Morrell’s failure to record the number of lost work days on the OSHA 200log (Tr. 130-131; Ex. C-6). That citation was not contested and became afinal order of this Commission. Subsequently, Morrell submitted anabatement letter with respect to that citation which included an August7, 1980 Morrell memorandum entitled \”‘Guidelines for DeterminingRecordability\” (Tr. 135-136; Ex. C-7). These guidelines appearconsistent with OSHA’s interpretation of some of its recording requirements.Mr. Charles Edwards, a former Compliance Officer with OSHA, testifiedthat he conducted an inspection of Morrell’s workplace on June 27, 1984(Tr. 77). Mr. Edwards stated that during his walkaround he spoke toemployees who complained of being brought back to work early followingaccidents. The employees told him that they believed their names werenever entered on the OSHA 200 logs (Tr. 78-79, 92). Mr. Edwardstestified that he was unable to locate the names of the six employeesinvolved on the logs (Tr. 78-79, 92-95). At that time, he reviewed allof the 1983 OSHA 200 logs dating from September 1983 and all of the OSHA1984 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 AssistantGeneral Manager and Assistant Vice President of Morrell, and Mr. LarryAnderson, Morrell’s Director of Personnel and Labor Relations, todiscuss the recording errors. Mr. Junso told Mr. Edwards that it wascustomary to bring injured workers back to work and assign them workother than their regular jobs.If the employees had not lost any work, the restricted work was notrecorded (Tr. 84-85). At that point in time, OSHA was on notice thatMorrell had not been recording restricted work activity in accordancewith OSHA’s long standing interpretation of 1904.2(a) and therecordkeeping instructions on OSHA Form 200.Mr. Edwards testified that he discussed the OSHA recording requirementsat that meeting, specifically mentioning that an injury was recordablewhere an employee was brought back and put into a position differentfrom his original job (Tr. 82-83). Mr. Edwards understood fromstatements made that Morrell would add the missing entries that had beendiscovered and that Morrell also would \”comply in the future\” (Tr.85-86). Mr. Junso testified that the six missing entries were correctedfollowing the June meeting (Tr. 587-588).Mr. Edwards testified that because the discovered six recordingviolations were outside the agreed scope of the inspection he did notrecommend the issuance of a citation.In August of 1984, Mr. Edwards returned to Morrell with a warrant whichalso authorized him to examine records \”required to be maintained by theAct and regulations (Tr. 98; Ex. R-4).\” There is no indication in therecord as to what records, if any, Mr. Edwards examined on thatoccasion. The August 1984 citation to Morrell, however, did not containany alleged recordkeeping violations. (Tr. 151).After a second closing conference with Morrell on September 4, 1984, hereviewed his inspection report of the June 1984 inspection, dated July9, 1984, with his Area Director, Bruce Beelman. Mr. Edwards in his Julyreport had recommended a follow-up inspection because \”This plant ismanipulating the L.W.D.I. by the way they handle their injuries (Tr.90-91,103; Ex. R-3).\” Mr. Beelman recalls reading the narrative on Mr.Edwards’ inspection but does not recall the statement referring tomanipulation of the L.W.D.I. (Lost Work Day Injury Rate) or discussingthe statement with Mr. Edwards (Tr. 151-152). Mr. Beelman signed thereport as \”Reviewer\” on September 13, 1984 (Ex. R-3).In April 1985, OSHA Compliance Officer Charles Bundy reviewed Morrell’sOSHA 200 logs on the instructions of Mr. Beelman, OSHA Area Director,\”to look at those records and take whatever action was necessary to tryand determine the accuracy of those records.\” After reviewing Mr.Bundy’s report on May 3, 1985, and questioning him, Mr. Beelmanconcluded that Mr. Bundy had not conducted the April records review inaccordance with his instructions and OSHA’s specific procedures. He hadinstructed Mr. Bundy to make a closer evaluation of the recordsincluding interviews with employees, to determine the accuracy of therecords. (Deposition of Mr. Beelman, pages 74-75.) In his report, Mr.Bundy had reported a low L.W.D.I. rate of 1.4 and it was Mr. Beelman’sopinion that 1.4 was a \”very low rate\” considering the total number ofinjuries recorded by Morrell. It was Mr. Beelman’s testimony that thosecircumstances should create a suspicion that something was wrong withthe logs and would give cause to any compliance officer \”to pursue itfurther (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 thattime, the union filed a complaint with OSHA alleging, among other items,that Morrell was improperly recording restricted work activity (Tr.123-124). When the union reached a contract agreement with Morrell inNovember 1985, however, the complaint was withdrawn without being actedupon by OSHA (Tr. 126-128, 183).Prior to the September 18, 1986 inspection, OSHA did not actually\”discover\” any of the specific instances cited in the 1987 citations.But obviously, at the time the warrant was applied for on September17th, OSHA had actual knowledge of facts and was on notice of factswhich in the exercise of reasonable diligence would have led to actualknowledge of all of the alleged violations in this case. Based on thisrecord, therefore, the statute of limitations commenced to run no laterthan September 17, 1986. Because the citations in this case were issuedon April 23, 1987, more than six months after September 17, 1986, theyare barred by Section 9(c) of the Act.Both the Secretary and Authorized Employee Representative contends thatthe statute of limitations did not commence to run until at leastOctober 24, 1986, when a \”detailed\” investigation of Morrell’s injuryand illness recordkeeping procedures allegedly began. The point at whichthe statute of limitations begins to run, however, does not necessarilycoincide with when either the Secretary begins a \”detailed\”investigation that will lead to discovery of the violations or when theSecretary decides that a violation has been committed. Rather, thestatute of limitations may begin to run when knowledge and due diligencerequire commencement of an investigation by the Secretary. See Sun Ship,supra. Moreover, Compliance Officer Hildremyr concluded sometime duringthe week of October 6, 1986, that violations of 1904.2(a) existed. Onthe basis of that conclusion alone, the statute of limitations wouldhave 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 expiredbefore April 23, 1986.Moreover, the Secretary failed to demonstrate, and there is nothing inthis record to indicate, that the Secretary with due diligence could nothave issued the citations within the six month period commencing onSeptember 17, 1986, or within the six month period commencing October10, 1986. Although agreeing with the authorized employee representativethat some of Morrell’s actions (particularly the statements made at themeeting of June 27, 1984) may have misled or lulled OSHA into believingthat Morrell was complying with OSHA’s interpretation of the restrictedactivities recording requirements of 1904.2(a) and OSHA Form 200, thereis no evidence that any actions or statements to conceal the allegedviolations were undertaken by Morrell after September 17, 1986.One final point. Although the Secretary is correct that the citedalleged violations were continuing violations, the Commission has notadopted the rule that the statute of limitations begins to run oncontinuing violations when the violation is corrected or when theviolation is actually discovered. As previously pointed out, theCommission in Kaspar Wire Works, Inc., supra, which involved continuingviolations, did not adopt the Secretary’s position on actual knowledgeof the violation and held that the statute of limitations with respectto continuing violations begins to run when OSHA discovers or reasonablyshould have discovered the violation. This Judge is constrained tofollow the Kaspar decision.To obviate the need of a remand, however, should the Commission or areviewing court find that the citations were issued within the six-monthstatute of limitations of Section 9(c) and were not barred, this Judgewill proceed to decide \”Willful\” Citation No. 5 on the merits. In lieuof evidence, the Secretary and Morrell introduced a stipulation into therecord that resolves the other than serious violations of Citation No.6. Therefore, it becomes unnecessary to decide Citation No. 6 on its merits.Alleged ViolationsMorrell concedes that lost work days must be recorded on OSHA 200 logsif due to a work related accident or illness. Mr. Anderson, Mr. DennisPaul Studer, Safety Director until 1981, and Mr. Terry Mark Egger,Morrell’s current Safety Director, all testified to the effect, however,that it was Morrell’s long standing policy not to record restricted dutydays under Columns 2 and 5 of the OSHA Form 200 or Columns 9 and 12unless an employee also had lost work days as a result of anoccupational injury or illness (Tr. 528, 531- 532, 563, 611, 613).Morrell further argues that even if restricted work activity isrecordable without a related lost work day, it is not recordable asrestricted work activity if not ordered by medical personnel.Additionally, Morrell contends that there was no violation of 1904.2(a)because the incidents involved in the citation were recordedconsistently with the Secretary’s pre-1985 instructions for filling outthe OSHA-200 log. According to Morrell, columns 2 and 5, and columns 9and 12 requiring notation of restricted work activity and a tally of thenumber of restricted days, are subsections under the heading \”Injuries[Illnesses] with Lost Workdays\” (Ex. C-4). Morrell argues that theplacement of these columns under the \”Lost Workdays\” heading and theplain meaning of the term \”lost workdays\” indicate that those columnsneed not be filled out unless an injury resulting in restricted workdays is also accompanied by days away from work. Morrell contends thatwith respect to injuries where the employee spent no time away fromwork, entries should be made only under column 6, \”Injuries Without LostWorkdays\” (Column 13 if illnesses are involved).Morrell claims that this interpretation was followed by the Secretaryprior to and including 1985. Morrell supports this contention bypointing to a 1987 change in the footnoted explanation of column 6 onOSHA Form-200S, used to summarize data from the 200 logs (Ex. R-11,R-12). Column 6, \”Without Lost Workdays\” contains a footnote in the 1985form which defines \”Without Lost Workdays\” as \”cases (with no days lost)resulting in either: diagnosis of occupational illness, loss ofconsciousness, restriction of work or motion, transfer to another job,or medical treatment beyond first, aid.\” The footnote on the 1987 formcontains the parenthetical comment \”(on the day of occurrence)\”following the words \”restriction of work or motion.\”The Secretary declares that the OSHA 200 log clearly requires that daysof restricted work activity be recorded under columns 2 and 5, orColumns 9 and 12, and that OSHA has never interpreted the requirementsin any other manner. The Secretary maintains that the change in Form200S is merely a clarification of existing policy and does not denoteany change in interpretation.Examination of the OSHA 200 form supports the Secretary’s position. Boththe instructions under columns 2 and 9 and the instructions for fillingout these columns on the reverse side of the 200 log make clear that oneof these columns must be checked whenever any injury or illness\”involves days away from work, or days of restricted work activity, orboth.\” These instructions specifically apply to columns 2 and 9 of OSHAform 200 and are easily understandable. It is not reasonable, therefore,to interpret these instructions as not requiring a check under columns 2or 9 when days of restricted work activity do not involve days away fromwork. Moreover, according to the caption instructions, column 6 is to bechecked only if no entry is made in columns 1 or 2 and column 13 is tobe checked only if no entry is made in columns 8 or 9.The more reasonable interpretation is that for the purposes of the OSHA200 log, days of restricted work activity also constitute \”lostworkdays.\” This position is supported by the instructions for fillingout columns 4 and 11 and columns 5 and 12 on the back of the form, whichdivide \”lost workdays\” into two groups captioned – LOST WORKDAYS–DAYSAWAY FROM WORK and -LOST WORKDAYS–DAYS OF RESTRICTED WORK ACTIVITY.Nor do the changes in the OSHA 200S form require a contrary conclusion.Given the clarity of the OSHA 200 log itself, there is no need for anemployer to rely on language contained in a separate form to interpretthe OSHA 200 form. Moreover, the 1985 footnote on OSHA Form 200S is notinconsistent with the instructions on how to fill out columns 2 and 6.If an entry is made in column 2, no check is made in column 6. Theobverse also is true. If restricted work activity occurs only on the dayof the injury, column 6 would be checked, but not column 2.The 1987 change pointed out by Morrell does not change, but merelyclarifies those instructions. Under the definition of \”RecordableCases,\” of course, restricted work activity always must be recordedunder columns A-F.The Secretary withdrew the following Citation No. 5 items: (a)-7;(a)-26, (b)-1; (b)-7; (c)-3; (d)-9; (d)-13; (e)-2; (e)-4; (e)-6 (ExhibitJ-1). These items of Citation No. 5, therefore, should be vacated.With respect to the following Citation No. 5 items, Morrell stipulatedthat medically ordered, temporary work restrictions resulted from workrelated injury or illness:(a)-2; (a)-3; (a)-4; (a)-5; (a)-8; (a)-9; (a)-10; (a)-12; (a)-15;(a)-20; (a)-21; (a)-23; (a)-24; (a)-28; (a)-30; (a)-31; (a)-32; (a)-33;(a)-35; (d)-4; (d)-5; (d)-6; (d)-7; (d)-8; (d)-10; (d)-11; (d)-12;(Exhibit J-1).Based on the discussion above, those items are recordable in columns 2and 5 or columns 9 and 12 without reference to lost workdays and shouldbe affirmed.In paragraph 6 of the Stipulation, the Secretary amended items C-1 andC-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 the remaining cases cited by theSecretary 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 daysof recordable restricted work activity were incurred, and that in items(b)-2, 3, 4,5,6,8,9; (e)-1, 3 and 5, there were no days away from work.The instructions for recording days of restricted work activity incolumns 5 and 12 provide:Enter the number of workdays (consecutive or not) on which because ofinjury or illness:(1) the employee was assigned to another job on a temporary basis, or(2) the employee worked at a permanent job less than full time, or(3) the employee worked at a permanently assigned job but could notperform all duties normally connected with itThe number of lost workdays should not include the day of injury oronset of illness or any days on which the employee would not have workedeven though able to work.The Individual Contested-ItemsItem 1(a)-1. Darrel Paulin testified that on January 11, 1985, hesuffered a knife cut to his right thumb during some horse-play (Tr.294-295). Mr. Paulin stated that he received nine stitches. When hereturned to work his supervisor assigned him janitorial work and otherodd jobs for approximately three weeks and four days at which time hereturned to his regular job trimming hams (Tr. 297-304).Morrell argues that the restriction is unrecordable, however, becausethe injury was not job-related and because the restriction was notordered by a physician. This Judge agrees that the incident was notwork-related and not recordable. The fact that restricted work activityis not ordered by a physician, however, is not relevant.Section 29 C.F.R. ? 1904.12(c) provides in pertinent part:?1904.12 Definitions* * *\”(c) \”Recordable occupational injuries or illnesses\” are anyoccupational injuries or illnesses * * *\” (Emphasis added). TheCommission has previously given a broad interpretation of the recordingobligation with respect to occupational illnesses. In General MotorsCorp (Inland Division) 8 \”A OSHC 2036 (No. 76-5033), the Commission heldthat employers must record illnesses in which the occupationalenvironment either was a contributing factor to the illness oraggravated a pre-existing condition. Applying a similar interpretationto \”occupational injuries,\” it is reasonable to require employers torecord injuries in which the occupational environment was a contributingfactor even in a situation when the occupational environment did notdirectly cause the injury. But the injury here was not \”work-related\” asthat term is customarily defined. It was directly caused by theunanticipated \”horseplay\” behavior of a fellow employee and the workenvironment was not a contributing factor. Morrell, therefore, was notrequired to record this incident as an occupational injury.If the Secretary wishes to broaden the definition of \” occupationalinjuries,\” she needs to amend ?1904.12(c) and her instructions on OSHAForm 200 to include all injuries that occur in an employer’s workenvironment.Item 1(a)-6. Charlotte Burkel testified that on March 20, 1985, shesuffered a knife cut to her left forearm while at her regular jobtrimming loins (Tr. 237). She received three stitches and the clinicordered her put on light duty (Tr. 238-239). Ms. Burkel stated that sheboxed tails and ran errands for two weeks before returning to herregular job (Tr. 240).Morrell admits it is unable to rebut Ms. Burkel’s testimony(Respondent’s Post-Hearing Brief p. 17). Ms. Burkel’s restricted dutywas recordable under Columns 2 and 5.Item 1(a)-11. Wayne Hallem testified that on April 24, 1985, hepunctured his left forearm with a knife while performing his regular jobtrimming loins (Tr. 317). Mr. Hallem stated that he received threestitches which prevented him from performing his work (Tr. 320-321). Athis own request, Mr. Hallem was assigned a job cleaning abscesses fromproduct for two or three days before returning to his own job (Tr. 322-323).Morrell argues that there was no evidence of any actual restriction ofmotion 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 OSHA Form-200 instructions for column 5 and, therefore,entries should have been made under columns 2 and 5. See also J. R.Simplot, 13 BNA, OSHC 1552 (No. 86-0880, 1987).Item 1(a)-13. Mr. Milo Keith Bierle testified that on May 21,1985, hesustained a cut to his right index finger while performing his regularjob trimming hams (Tr.414-415). Mr. Bierle stated that he received fouror five stitches and returned to work where he told his foreman that hecould not trim hams and needed a one-handed job. Mr. Bierle believedthat he swept floors and performed clean-up for three weeks beforereturning to his original job (Tr. 418-419).The lack of a medical authorization is immaterial, and Mr. Bierle’speriod of restricted work should have been entered under columns 2 and 5.Item 1(a)-14. Howard Dean Rehfeldt testified that he suffered alaceration to his left thumb on July 11, 1985, while performing hisregular job skinning out the front end of sheep (Tr. 352). Mr. Rehfeldtstated that he received four or five stitches and returned to work wherehe was put on relief duty, trimming dirt and fat one-handed. The nextfour days he performed odd jobs such as making kosher tags for sheep(Tr. 355-356, 361). Mr. Rehfeldt returned to his regular job afterreturning from previously scheduled leave (Tr. 375).It is clear that Mr. Rehfeldt was assigned light duties for four daysdue 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, hecut his right hand while skinning intestines (Tr. 381). Mr. Ackermanstated that after receiving nine stitches, he returned to work and wasassigned a job pulling intestines from a tank for the remainder of theday, where his hands were immersed, contrary to doctor’s orders (Tr.383-385). Mr. Ackerman could not recall what job he performed thefollowing day (Tr. 383-386).The Secretary presented insufficient evidence that Mr. Ackermanexperienced a full day of restricted activity recordable under columns 2and 5 on OSHA Form-200.Item 1(a)-17. Mike Hoffman testified that on December 19, 1985, he cuthis right palm pulling skirts (ribs) from beef (Tr. 462-463). Mr.Hoffman initially stated that he was treated at the plant over the nexttwo days with butterfly bandages. Mr. Hoffman testified that afterreturning to work he was placed on light duty trimming dirt and greasefrom beef and fat from clods (thick roll centers) until the third dayfollowing the injury (Tr. 467, 477-478). Medical records showed that Mr.Hoffman actually received stitches at a clinic on December 20th for theDecember 19 accident (Tr. 464-466, 482-483). Mr. Hoffman stated that hehad received a number of cuts requiring visits to the clinic over the13-month period surrounding the incident in question and that \”you kindof lose count\” (Tr. 479-481).Mr. Hoffman’s inconsistent testimony is insufficient to establish hisclear recollection of the incident in question and support theSecretary’s allegations.Item 1(a)-18. Mark J. Uithoven testified that on December 24, 1985, hecut his right index finger boning beef heads (Tr. 453-454). Mr. Uithovenstated that he returned to work after receiving seven stitches, wherethe foreman assigned him a job packaging livers and stacking boxes. Heperformed that job that day and the next two before returning to hisregular job (Tr. 455-458). Mr. Uithoven stated that the job was easieron his finger than holding a boning knife (Tr. 460).It is clear that Mr. Uithoven was placed in a position other than hisregular job due to his injury. Those two days of restricted work shouldhave been recorded under columns 2 and 5.Item 1(a)-19. Mr. Glen Ray Bergen testified that on May 21, 1985, whilehoisting dead beef and dropping it onto a rail for skinning, he was hitin the eye (Tr. 424-425). Mr. Bergen stated that after having the eyeswabbed out, salved and patched, he returned to work. Mr. Bergentestified that he had no depth perception with the eye patch and statedthat he told his foreman that the doctor had ordered him not to operateequipment or knives. Mr. Bergen was given a job checking guts for cutsfor a couple of hours (Tr. 427-428). No medical restriction was noted onthe medical forms (Tr. 440).According to the OSHA Form-200 instructions, restricted work activity isrecordable under columns 2 and 5 or columns 9 and 12 only if theemployee is restricted for a full day, other than the day of the onsetof illness or injury. The Secretary has failed to demonstrate that Mr.Bergen experienced a full day of restricted activity.Item 1(a)-22. Ron Christensen testified that on February 8, 1985, hesuffered lower back strain while trucking and scaling, i.e. weighing anddelivering product (Tr. 326). Mr. Christensen stated that he returned towork with a light duty slip and was assigned a job throwing hams from avat onto a table with a hook. Mr. Christensen did not feel that the jobwas light work and performed the job only a couple of hours beforeasking to be returned to his regular job (Tr. 328- 33).Mr. Christensen did not spend a full day at light duty and was able toreturn to his regular job. There was no recordable restricted activityunder columns 2 and 5 with respect to this incident.Item 1(a)-25. Michael Kenyon did not testify. Medical records introducedby the Secretary (Ex. C-9) do not demonstrate any recordable days ofrestricted activity.Item 1(a)-27. Mr. Glen Ray Bergen stated that he suffered a back sprainin November 1985 while skinning necks (Tr. 429,445). After receivingphysical therapy and a prescription for muscle relaxants, Mr. Bergenreturned to work but found he could not lift the hides and asked to bemoved (Tr. 429-431). Mr. Bergen testified that he was assigned to a jobskinning collage (gray area) from beef for one week before returning tohis regular job (Tr. 432).It is undisputed that Mr. Bergen was assigned a temporary job for a weekdue to his injury. Those days are recordable as restricted work activityunder columns 2 and 5.Item 1(a)-29. Patricia Lendal did not testify. The medical recordsintroduced by the Secretary (Ex. C-9) do not support a finding that sheexperienced any recordable restricted workdays.Item 1(a)-34, 1(b)-4. Mr. Gaylord Clark testified that on January 15,1985, he crushed his left hand in the sausage sealing machine (Tr. 387).Mr. Clark stated that he checked in with his foreman and the safetydirector the following day but left immediately and did not work (Tr.390, 408-413). For the next several months he rotated between foldingboxes and packing or stacking packages of weiners one- handed until aboxing job opened up (Tr. 391-395). Mr. Clark felt that within threeweeks he would have been able to use both hands, but still experiencedpain and did not want to return to his old job as the cold in thesausage cooler bothered him (Tr. 397-399, 402-405).Morrell admits that Mr. Clark was transferred to another job as a resultof his injury (Respondent’s Post-Hearing Brief, p. 21). So long as thatassignment was temporary in nature and was due to the injury it wasrecordable under columns 2 and 5.Respondent introduced no evidence to dispute Mr. Clark’s testimony thathe had gone home and not worked the day following the accident. That dayshould have been recorded as a lost work day under column 4.Item 1(a)-36. Joan Maria Ackel testified that on March 16, 1985, shesuffered chemical burns to her right thigh and left wrist while cleaningthe cooler floor on the wiener deck (Tr.254). Upon returning to work,Ms. Ackel was \”bumped\” from her regular job due to a departmentalshutdown (Tr. 256-257). Ms. Ackel moved to a job washing tripe, but wasunable to perform this job as it required her getting her bandages wet.The safety director at Morrell then found her a job labeling baconcartons 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 ofpackaging weiners with her bandages (Tr. 264).Ms. Ackel was not removed from her permanent job because of her injury,but because of a departmental shutdown. Since washing tripe was not apermanent position, her reassignment from that position due to herinjury was not recordable under column 5.Item 1(b)-2 Connie Uithoven testified that on November 23, 1985, shesuffered a knife puncture to her right middle finger while performingher regular job of boning hams (Tr. 278). The following day Ms. Uithovenwas hospitalized for an infected hand. Ms. Uithoven stated that sheremained in the hospital for five to seven days and did not return towork for an additional week. (Tr. 281-282).Mr. Egger admitted that Ms. Uithoven’s lost work days should have beenrecorded under column 4 (Tr. 615).Item 1(b)-3. Kevin L. Huemoeller did not testify. The medical recordsintroduced 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, Morrellstipulated that \”there was apparently one lost work day associated withthis case . . . not indicated on the logs\” (Tr. 211). A lost work dayshould have been entered on the log.Item 1(b)-6. Perry Steilow testified that on May 14, 1985, he sufferedlower back strain while performing his regular job trucking bones (Tr.244). Mr. Steilow testified that he punched in daily for the next sevendays, went to the clinic for treatment and went home (Tr. 246-247). Atthe end of that time Mr. Steilow was permanently assigned a differentjob on the meat cutting line (Tr. 248).Morrell introduced no evidence to rebut Mr. Steilow’s testimony. Thedays Mr. Steilow spent in therapy rather than at work were recordable aslost work days under column 4.Item 1(b)-8. William Zafft testified that on January 22, 1985, hestrained his left knee while drilling holes for electrical conduits (Tr.265). The pain from that injury continued and Mr. Zafft consulted hisown physician. Approximately two months later he had surgery for torncartilage in the knee (Tr. 267-270). He further stated that he was offwork for two weeks, then returned with a doctor’s slip restricting himto light duty and spent the next two weeks in the electrical shop doingbench work (Tr. 270-274).Mr. Egger stated that the failure to record the lost weeks of work wasprobably due to an oversight resulting from the delay between the injuryand the surgery (Tr. 617). That time should have been recorded as lostwork days under column 4.Item 1(b)-9. Fred Devany testified that on December 19, 1985, he injuredhis knee while at work and was put on crutches when he reported to firstaid 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 wasgiven work pasting labels on can lids for approximately two weeks (Tr. 232).Mr. Devaney did not work the day he reported to the clinic, the dayfollowing the injury. Thus, that day is reportable as lost work timeunder column 4.Item 1(d)-1. Forrest O’Neal testified that on January 3, 1985, he waskicked by a stunned beef while heading (i.e. bleeding and skinning)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 firstaid clinic. For the next two weeks he checked hides for knife cutsone-handed (Tr. 308-310. Mr. O’Neal then returned to his regular job(Tr. 311).It is undisputed that Mr. O’Neal was reassigned due to the January 3incident and was unable to perform all of the duties of his permanentjob. That time is recordable as restricted work activity on the OSHAForm-200.Item 1(d)-2. Dale Eugene Nygaard testified that on January 11, 1985, hedeveloped tendonitis in his left thumb from performing his regular jobstripping loins (Tr. 365-367). Mr. Nygaard stated that within a few dayshis foreman put him on a Cryvac line strapping boxes of loins after Dr.Tam ordered him placed on light duty (Tr. 368). In two days Mr. Nygaardreturned to his job though his thumb still bothered him (Tr. 370-371).Mr. Nygaard testified that he was qualified to do many jobs on thecutting floor besides stripping loins and that he was often assignedelsewhere, including the Cryvac strapping line (Tr. 372-376).Mr. Nygaard stated that he was moved from stripping loins and assignedto the Cryvac line because of his injury. Those days are recordable asrestricted work activity under column 12 despite the fact that he wasqualified for or had been assigned to the strapping job in the past. Hewas unable to perform all the duties of his permanent job.Items 1(d)-3, (e)-1. Rene Swanson testified that on January 23, 1985,she saw a company doctor for pain in her right wrist and a locking ofher right ring finger she experienced while operating a wizard knife.Therapy, bracing and medication proved ineffective and on May 5, 1985,Ms. Swanson had carpal tunnel release surgery on her wrist (Tr.488-492). Ms. Swanson stated that she returned to work three days afterher 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 nextfive days (Tr. 495-498). Mr. Egger admitted that Ms. Swanson’s missedworkdays appeared to be related to the earlier injury. He assumed thatthey were not recorded under column 11 due to an oversight (Tr. 619).Ms. Swanson’s restricted duty also was recordable under column 12.Item 1(d)-14, (e)-5. Tod Juhnke testified that on May 12, 1985, hereported 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 diagnosedas a ganglion cyst, but bracing and medication were ineffective and onAugust 23, 1985, Mr. Juhnke had carpal tunnel release surgery (Tr. 337-341). He called in sick the next work day, Saturday. When he returned towork 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 wentout on strike the next week, but punched in daily and walked aroundtrying to \”look busy\” (Tr. 344-345). After the strike ended he went backto work on the wizard knife (Tr. 345).Morrell presents no evidence to rebut Mr. Juhnke’s testimony regarding alost work day associated with carpal tunnel syndrome. Morrell admitsthat upon his return Mr. Juhnke was not put back on his regular job(Respondent’s Post-Hearing Brief, p. 23). Morrell maintains that noevidence connects the surgery with the May 12, 1985 cyst.Mr. Juhnke’s complaint and treatment were continuous from the May 12incident up until his surgery and reasonably may be assumed to berelated and culminated in that surgery. The lost work time andrestricted work activity resulting from the surgery were reportableunder columns 9, 11, and 12.Item 1(d)-15. Doug Clark testified that on August 1, 1985, whileperforming his regular job of facing and pelting sheep, he developed acyst on his right palm.Some weeks later, after having the cyst surgically removed, he returnedto work (Tr. 217-220). Mr. Clark stated that he had four stitches in hispalm and could not do his regular job (Tr. 227-228). At his request hewas put on light duty, putting trolleys under the magazine one-handedfor five to ten days (Tr. 220-224).Mr. Clark’s inability to perform his regular job was due to his illnessand was recordable on OSHA Form-200 under columns 9 and 12.Item 1(e)-3. John Lange did not testify. Medical records supplied by theSecretary (Ex. C-9) do not demonstrate that the employee suffered anylost work time.Willful IssueThe Secretary alleges that Morrell willfully committed all of thealleged violations in Citation No. 5. With respect to the violationsalleged in her Citation No. 6, however, the Secretary characterizes themas \”other than serious\” even though they are similar to the Citation No.5 violations.The record evidence establishes that the violations with respect torecording restricted work activity committed by Morrell after themeeting of June 27, 1984, should be characterized as willful. At thatmeeting, Morrell’s management in the person of Mr. Junso was put onnotice by Compliance Officer Edwards of the Secretary’s interpretationof the standard’s requirements concerning the recording of restrictedwork activity and the instructions on OSHA Form 200. Morrell’srepresentatives related to the Compliance Officer Morrell’s practice ofnot recording restricted work activity unless the employee also had daysaway from work (Tr. 84-85). Using examples, the Compliance Officerexplained that this was not in compliance. According to his explanation,if an employee had been put into a different position because of hisinjury, the event was recordable. He told Morrell representatives howrestricted work activities were to be recorded on the OSHA Form 200 (Tr.81-84). After he completed his \”informational program\” concerning theOSHA Form 200, he was told by the Morrell representatives that theywould start to make the necessary corrections in their OSHA 200’s tomeet the requirements of the Act (Tr. 85-86). The Compliance Officer’stestimony in this regard was corroborated by the union representativespresent at the meeting (Tr. 107-108,121). This testimony standsunrebutted. Mr. Junso has little recollection of what transpired at theJune meeting and no recollection relating to whether recording ofrestricted work activity was even discussed (Tr. 587-588). On thisrecord, the testimony of the Compliance Officer and the unionrepresentatives is credited.Despite awareness of the \”Secretary’s interpretation, Morrell continuedits prior practice of recording restricted work activity only if lostwork days were involved. Perhaps Morrell believed that itsinterpretation of the standard’s requirements concerning recordingrestricted work activity would prevail at a hearing. By continuing itsprior practice, however, Morrell assumed the risk that this defensewould fail and the risk that its deliberate course of action would becharacterized as willful. That defense has failed, and Morrell’sfailures to record restricted work activity in compliance with the OSHA200 instructions and the Secretary’s interpretation of thoseinstructions should be characterized as willful violations.Citing the decision in Mel Jarvis Construction Co., 10 BNA, OSHC 1052,among others, Morrell contends that a violation is not willful if theemployer has a good faith opinion that the violative conditions conformto the cited standard. The Commission decision in Mel Jarvis, whichaffirmed a decision of this Judge, however, is clearly distinguishable.Morrell, unlike Mel Jarvis, was aware of the Secretary’s interpretationof the standard’s requirements. Moreover, there is nothing in the OSHA200 instructions to support a finding that Morrell’s contraryinterpretation of the instructions is reasonable and, therefore, held ingood faith. Cf. RSR Corporation, 11 BNA OSHC 1163 (1983).A different situation, however, is presented by the failures of Morrellto comply with the recordkeeping violations not related to restrictedwork activity. There is insufficient evidence to conclude that thosefailures were willful or anything more than negligent oversights on thepart of Morrell.Mr. Pfeifle’s testimony establishes Morrell’s awareness in early 1984that OSHA utilized lost work days to determine whether or not to inspectemployers and Morrell’s obsessive concern in not allowing its lostworkdays to trigger an inspection. But there is nothing to indicate thatMorrell deliberately violated or was recklessly indifferent to, theother recordkeeping requirements, such as recording lost work days (Tr.62-73).The violations under Citation No. 5 not related to restricted workactivity, therefore, should be affirmed as other than serious violations.PenaltiesThe Secretary has proposed the $10,000 maximum penalty under the Act foreach, separate, willful violation under Citation No. 5. No penalties,however, were proposed for the other than serious recordkeepingviolations under Citation No. 6 despite their similarity to the CitationNo. 5 violations, or for items C-1 and C-2 under Citation No. 5.Assessment of individual penalties for each separate violation of astandard is not precluded by section 17 of the Act. As a matter ofpractice, however, the Commission has combined separate violations ofthe same standard, including willful violations, for the purpose ofassessing 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 theCommission, and the Commission is not bound by the Secretary’s proposedpenalties. See 29 U.S.C. ? 666(j); United States Steel Corporation, 10BNA OSHC 2123 (No. 77-3378, 1982). In United States Steel, ChairmanRowland declared that it is fundamentally unfair to assess multiplepenalties against an employer for the same conduct. According to him,violative instances of the same standard in that case should be combinedinto one alleged violation and one penalty assessed. CommissionerCleary, on the other hand, simply declared that the Commission may, whenit deems it appropriate, assess a single penalty for two or moreviolations of a single standard. A single penalty for multipleviolations of the same standard was assessed in that case.Section 17(j) of the Act, 29 U.S.C. ? 661(i) provides:(j) The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.Morrell employs 3,000 persons at Sioux Falls and has a past history ofviolations of the Act, including one prior violation of therecordkeeping standard. (See Exhibit J-1) As previously pointed out,Morrell also lacked good faith with respect to any of the willfulviolations relating to restricted work activity. Although the gravity ofthese willful violations is not high, the maximum total penalty forthese violations is appropriate in order to motivate Morrellsufficiently to deter it from any further violations of therecordkeeping standard. A total penalty of $10,000 for the affirmedwillful violations in Citation No. 5 relating to recording restrictedwork activity is considered appropriate. A total penalty of $1,000 forthe Citation No. 5 violations not related to restricted work activityalso is considered appropriate.The Secretary failed to propose any penalties for the other than seriousviolations alleged in Citation No. 6 or for items C-1 and C-2 ofCitation No. 5. But that failure does not preclude assessing somepenalty for the other non-serious violations of Citation No. 5. TheCommission has consistently held that it may assess penalties higherthan 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). Sinceemployers are on notice of the Commission’s authority to assess higherpenalties than those proposed by the Secretary, no element of unfairnessis involved when penalties higher than those proposed are assessed.It would be inappropriate not to assess some penalty for the CitationNo. 5 other than serious violations of the recordkeeping standard,particularly after finding that Morrell willfully violated that standardin another respect. Accordingly, a $1,000 total penalty for the otherthan serious violations in Citation No. 5 is considered appropriate.Findings of FactAll findings of fact relevant and necessary to a determination of thecontested 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 of law inconsistent withthis decision are denied.Conclusions of Law1. The issuance of Citations 5 and 6 was barred by Section 9(c) of the Act.2. Column 2 or Column 9 of OSHA Form 200 must be checked whenever anyrecordable work related injury or illness results in days away from workor days of restricted work activity or both.3. A day away from work does not include the day of injury or the day ofthe onset of illness. A day of restricted work activity does not includethe day of injury or the day of the onset of the illness.4. Column 5 or Column 12 of OSHA Form 200 must be checked whenever anyrecordable work related injury or illness results in days of restrictedwork activity.5. Column 6 or Column 13 of OSHA Form 200 must be checked if an injuryor illness results in restricted work activity on the day of injury orthe day of the onset of the illness and there are no days away from workor days of restricted work activity.6. Column 6 or Column 13 of OSHA Form 200 shall not be checked whenevera recordable work related injury or illness results in days away fromwork or days of restricted work activity.7. The record establishes by a preponderance of the evidence thatMorrell deliberately and willfully violated ? 1904.2(a) whenever itfailed to check Column 2 and Column 5 or Column 9 and Column 12 and arecordable work related injury or illness resulted in days of restrictedwork activity.8. Morrell willfully violated ? 1904.2(a) with respect to the followingalleged violations:1(a)-2; 1(a)-3; 1(a)-4; 1(a)-5; 1(a)-6; 1(a)-8; 1(a)-9; 1(a)-10;1(a)-11; 1(a)-12; 1(a)-13: 1(a)-14; 1(a)-15; 1(a)-18; 1(a)-20; 1(a)-21;1(a)-22; 1(a)23; 1(a)24;1(a)27; 1(a)28; 1(a)-30; 1(a)-31; 1(a)-32; 1(a)-33; 1(a)-34; 1(a)-35;1(d)-1; 1(d)-2; 1(d)-3; 1(d)-4; 1(d)-5; 1(d)-6; 1(d)-7; 1(d)-8; 1(d)-10;1(d)-11; 1(d)-12; 1(d)1-14; 1(d)-15.9. The record does not establish by a preponderance of the evidence thatMorrell willfully violated ?1904.2(a) when it failed to record days awayfrom work.10. Morrell’s failures to properly record days away from work constituteother than serious violations of the Act.11. Morrell committed other than serious violations of ? 1904.2(a) withrespect to the following alleged violations under Citation No. 5:1(b)-2; 1(b)-4; 1(b)-5; 1(b)-6; 1(b)-8; 1(b)-9; 1(c)-1; 1(c)-2; 1(e)-1;1(e)-5.12. Morrell did not violate ? 1904.2(a) with respect to the followingalleged violations under Citation No. 5:1(a)-1; 1(a)-16; 1(a)-17; 1(a)-19; 1(a)-22; 1(a)-25; 1(a)-29; 1(a)-36;1(b)-3; 1(e)-3; 1(a)-7; 1(a)-26; 1(b)-1; 1(b)-7; 1(c)-3; 1(d)-9;1(d)-13; 1(e)-2; 1(e)-3; 1(e)-4; 1(c)-6.13. A maximum total penalty of $10,000 for Morrell’s willful violationsunder Citation No. 5 is appropriate.14. A maximum total penalty of $1,000 for Morrell’s other than seriousviolations under Citation No. 5 (excluding 1(c)-1 and 1(c)-2) isappropriate.ORDERBased on the findings of fact, conclusions of law, and the entirerecord, it is ORDERED:1. Citation No. 5 and Citation No. 6, issued April 23, 1987, are VACATED.James A. Cronin, Jr. Judge, OSHRCAPPENDIX 1? 1904.2 Log and summary of occupational injuries and illnesses.(a) Each employer shall, except as provided in paragraph (b) of thissection, (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The logand summary shall be completed in the detail provided in the form andinstructions on form OSHA No. 200. SECRETARY OF LABOR, Complainant, v. JOHN MORRELL & CO., SIOUX FALLSPLANT, and its successors, Respondent. UNITED FOOD & COMMERCIAL WORKERS,LOCAL 304A, AFL-CIO, Authorized Employee Representative.OSHRC DOCKET NO. 88-2522FINAL ORDERThe parties have filed a Settlement Agreement in this matter. Thecontent of that agreement is incorporated by reference in this Order.The Settlement Agreement is hereby approved and shall be deemed a finalorder of the Commission.This order is expressly contingent upon an order approving thisSettlement 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 its successors, Respondent. UNITED FOOD & COMMERCIAL WORKERS, LOCAL304A, AFL-CIO, Authorized Employee Representative.OSHRC DOCKET No. 88-2522FINAL ORDERThe parties have filed a Settlement Agreement in this matter. Thecontent of that agreement is incorporated by reference in this Order.The Settlement Agreement is hereby approved and shall be deemed a finalorder of the Commission.This order is expressly contingent upon an order approving thisSettlement 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.”