EHS Management

Inspected in Poughkeepsie, Enforced in Peoria? OSHA Claims Authority to Enforce Abatement Across Multiple Facilities

The Occupational Safety and Health Administration (OSHA) has long had enforcement guidance in place enabling it to enter into settlements that affect the operations of an entire corporation, rather than just a single facility. But these were mutually negotiated agreements; they were not something OSHA considered itself statutorily empowered to impose and enforce. That may be changing, as OSHA claims new authority under the OSH Act.

When a Massachusetts employer appealed a set of OSHA citations, OSHA asked the Occupational Safety and Health Review Commission to include corporatewide abatement requirements as part of the final order. In the past, an administrative law judge (ALJ) has rejected OSHA’s argument in favor of the practice—but a new ruling issued on December 7, 2015, has gone in OSHA’s favor.

OSHA Goes After a Whole Corporation

Central Transport, LLC, (Central) is a trucking company based in Warren, Michigan; the employer operates nearly 200 customer service centers and facilities in 45 states and Canadian provinces.

During an inspection of Central’s Billerica, Massachusetts, shipping terminal in 2014, OSHA identified two repeat violations, carrying $44,000 in proposed penalties, involving unstable and insecure stacking of materials and failure to inform employees of the dangers associated with hazardous chemicals in the workplace. The violations were similar to violations cited in 2012 at company facilities in Hillside, Illinois, and Pearl, Mississippi. In addition, the Billerica facility was cited for four willful safety violations, carrying $242,000 in fines, and eight serious violations, with $44,800 in fines. OSHA’s deputy regional administrator for New England, Jeffrey A. Erskine, signaled OSHA’s intent to penalize the entire company for the findings of its most recent inspection in a press release, saying “It’s clear that Central Transport must systematically and effectively address and eliminate hazards at all its locations. The safety and well-being of its employees, now and in the future, depend on it.”

The citations were issued in November 2014; Central contested them the following month. In its complaint, OSHA argued that Central Transport failed to comply with the OSHA standards for the safety of powered industrial trucks at locations other than the inspected worksite, and OSHA requested an order compelling Central Transport to comply with the powered industrial truck standard at all its locations. Central Transport filed a motion asking the Commission to strike the department’s claim for enterprisewide abatement, arguing that the OSH Act does not permit it.

Decisions, Decisions

OSHA’s argument centers on Section 10(c) of the OSH Act, which empowers OSHA to ask the Occupational Safety and Health Review Commission to issue enforcement orders “affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief.” OSHA argues that the phrase “other appropriate relief” empowers the Commission to direct a corporation to comply with an enforcement order at all corporate locations, not just at the location that was inspected most recently by OSHA.

OSHA has attempted this same argument before. Its earliest attempts were resolved with negotiated settlements, but in 2013, a case against Delta Elevator Service Corp. was resolved by an ALJ. That judge rejected OSHA’s “other appropriate relief” argument, saying that no precedent supported such a ruling.
In 2015, however, a similar decision in the Central Transport case went in OSHA’s favor. On December 7, 2015, Administrative Law Judge Carol A. Baumerich denied Central’s motion, and held that OSH Act’s provision authorizing the remedy of “other appropriate relief” provides the basis for allowing OSHA’s claim for enterprisewide abatement, at all locations where like violations exist. This allows OSHA’s argument to proceed to trial.

This is the first time an OSHA ALJ has ruled in OSHA’s favor on this issue and allowed that the Occupational Safety and Health Review Commission may have the authority under the OSH Act to order abatement measures beyond the specific violations identified in a citation. OSHA can now proceed with discovery and attempt to demonstrate, by presenting its evidence at trial, that it has statutory authority to request enterprisewide abatement.

If OSHA wins its case, it will have set an important precedent with respect to the Occupational Safety and Health Commission’s authority to order corporatewide compliance with an OSHA enforcement action.

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