Judge’s Ruling in Safety Case Bears Watching

An administrative law judge’s recent ruling has the potential to expand the power of the Occupational Safety and Health Administration (OSHA). Though one expert says it could be a one-time event, he’s urging the glass and glazing industry to keep an eye on the case — especially businesses that operate in multiple locations.

In December, Judge Carol A. Baumerich ruled that the Occupational Safety and Health Review Commission may have authority under the Occupational Safety and Health Act to enforce measures at other locations operated by a company that’s violated OSHA regulations. It’s called enterprise-wide abatement, and it’s not uncommon in negotiated settlements OSHA reaches with violators. However, the case involving freight hauler Central Transport LLC might be different, because it involves a business that OSHA is in “contentious litigation” with, according to Business Insurance.

But Mike Burkhalter, the vice president of the Willis Group in Knoxville, Tenn., says it might not be that big of a deal — though businesses need to pay attention to the issue.

“Several OSHA attorneys I work with feel this is a one-time event that OSHA has chosen to publicize,” he says. “However, it bears watching to see if it happens again. OSHA likes to publish ‘Severe Violators.’ I think this may fall more toward that end than a legal precedent.”

In November 2014, Central Transport LLC was facing $330,800 in OSHA fines for four violations at its shipping terminal in Billerica, Mass. Central Transport contested the decision with the independent Occupational Safety and Health Review Commission in December of that year.

In its complaint to the commission, the Labor Department claimed that Central Transport failed to comply with OSHA standards for the forklift safety at locations other than the inspected worksite. It sought to enforce compliance at the company’s 170 locations across the country. Central Transport then filed a motion asking the commission to strike the department’s claim for enterprise-wide abatement, arguing that the Occupational Safety and Health Act does not permit it.

Judge Baumerich denied Central Transport’s motion, ruling that the Occupational Safety and Health Act’s provision for “other appropriate relief” allows the department’s claim for abatement at all locations where similar violations exist to proceed to trial. (The full order can be viewed here.)

“Judge Baumerich’s order is significant and precedent-setting,” said Michael Felsen, the regional solicitor of labor for New England. “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.”

OSHA statistics from January 2011 to March 2014 show that forklifts accounted for the most safety citations in the building materials industry with 71, according to recent webinars conducted by the National Lumber and Building Material Dealers Association.

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