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OSH Act may permit enterprise-wide abatement measures beyond violations identified in citations

January 5th, 2016  |  Pamela Wolf

A recent OSHA development, while not yet tested by further litigation, should nonetheless be on the radar of employers that operate at more than one site. In what OSHA called an administrative precedent-setting decision, an administrative law judge determined that the Occupational Safety and Health Review Commission may have authority under the OSH Act to order abatement measures against Central Transport LLC that extend beyond the specific violations that OSHA identified in its citations. The privately owned, full-service, asset-based transportation provider offers supply chain solutions across North America. Depending on how the rest of the litigation pans out, employers could be subjected enterprise-wide abatement that includes sites not initially inspected by OSHA.

Citations and litigation. In November 2014, OSHA cited the company for 14 violations of workplace safety and health standards at the freight hauler’s Billerica, Massachusetts, shipping terminal and proposed a total of $330,800 in fines. The following month, Central Transport filed a notice of contest with the Occupational Safety and Health Review Commission and litigation commenced. In its complaint to the commission, the Labor Department alleged 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 it requested an order compelling the company to comply with the standard at all of its locations.

In response, Central Transport filed a motion asking the commission to strike the DOL’s claim for enterprise-wide abatement, arguing that that relief is not permitted under the OSH Act. The company argued that Section 10(c) of the OSHA Act and Commission Rule 34, read together, preclude entry of an order for enterprise-wide abatement that would apply to sites never inspected by OSHA and that the commission’s authority is limited to remedying specific violations at individual sites based on findings of fact. The company relied on Delta Elevator Service Corp., No 12-1446, 20143 in support of its contention.

ALJ’s ruling. ALJ Carol A. Baumerich denied Central Transport’s motion, holding that the OSH Act’s provision authorizing “other appropriate relief” provides the basis for permitting the Labor Department’s claim for enterprise-wide abatement at all locations where like violations exist to proceed to trial. The administrative judge also denied Central Transport’s request for a discovery and litigation stay of the claim for enterprise-wide abatement, finding that it would jeopardize the litigation of the claim.

The ALJ refused to read the Delta case to authorize the extreme sanction of striking the DOL’s claim for enterprise-wide relief at this early stage of the proceeding. The parties in Delta had both had an opportunity to present evidence, and the case was fact-specific. Although it has precedential value as an unreviewed judge’s decision, it was not controlling. Here, where there had been no discovery or hearings, and a novel legal theory is advanced, the decision about that claim should be made on a complete record following discovery by both parties, the judge concluded.

Said Kim Stille, OSHA’s regional administrator for New England: “When an employer has hazards occurring at multiple locations, common sense and reasonable worker protection law enforcement both dictate that the employer take corrective action to safeguard the health and well-being of employees at all its worksites.”

The case, Secretary of Labor v. Central Transport LLC, was brought before the U.S. Occupational Safety and Health Review Commission; the docket numbers are 14-1452; 14-1612; and 14-1934.

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