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Jan
2016
22

Ruling Could Set New Precedent for OSHA to Issue Company-Wide Safety Violation Repercussions

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A ruling by an administrative judge could give the Occupational Health and Safety Administration (OSHA) the authority to order employers to abate hazards at all of their worksites, not just those that have been inspected for violations.  The 2014 case at the center of the situation involves Michigan-based Central Transport LLC, which had been cited for 16 violations in Illinois, including 5 repeat offenses, before committing violations in Massachusetts. Central Transport employs roughly 4,300 workers at 170 locations nationwide.

In the Massachusetts case OSHA cited Central Transport for its “knowing and repeated disregard for basic worker safety” at a freight shipping terminal in Billerica. Violations ranged from dangers posed by defective forklifts, to electrocution hazards, to slip and fall violations.  The citation also noted that the violations were similar to the company’s violations in other states.  OSHA fined the company $330,800 and ordered it to conduct an enterprise-wide abatement of these hazards.  The company eventually appealed the abatement.  

Background on abatements comes from KMI Innovations:

An OSHA abatement order requires employers to follow a series of involved steps to correct hazards in their facilities, including:

• Fixing the hazard for which they have been cited
• Certifying that the hazard has been fixed
• Notifying employees of the fix
• Sending documentation to OSHA confirming the elimination of the hazard
• Tagging certain cited equipment in their facilities with warning tags and/or copies of the OSHA citation

As part of the appeal, Central Transport LLC argued that OSHA overstepped its powers and does not have the authority to issue an organization-wide abatement order.  The company also argued that OSHA should be required to gather more evidence for a company-wide abatement.

OSHRC Judge Carol Baumerich, however, did not agree.  Baumerich argued that there was evidence that violations likely existed across Central Transport’s facilities based on its “history of numerous serious and repeat violations of this standard in numerous states.”  As noted by KMI Innovations:

Since 2006, citations had been issued for similar violations at 11 Central Transport shipping terminals in Pennsylvania, Connecticut, Massachusetts, Wisconsin, Georgia, Ohio, New Jersey, Nebraska, and Illinois — and OSHA maintained that Central Transport has “willfully failed” to correct most of these violations.

In a statement, Michael Felsen, the regional solicitor of labor for New England, praised Baumerich’s decision:

“Judge Baumerich’s order is significant and precedent-setting. This is the first decision by an OSHA Administrative Law Judge expressly finding that the U.S. Occupational Safety and Health Review Commission may have the authority under the OSH Act to order abatement measures beyond the specific violations identified in the citations. The department is now authorized to proceed with discovery and to demonstrate, by presenting its evidence at trial, that enterprise-wide abatement is merited on the facts of this case.”

While it is fairly common for OSHA to prescribe enterprise-wide abatement orders in negotiated settlements, it is unprecedented in contentious litigation.  

The ruling is not final, however, and only allows OSHA to proceed with discovery to present evidence that enterprise-wide abatement is justified.  The ruling could still be appealed to the full commission or the Federal Circuit Court of Appeals.  

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