Since 2010, the current OSHA administration has periodically sought to impose what it calls “enterprise-wide abatement” requirements as a term and condition of settling a case, as well as for abatement of citations that are either paid by the employer or upheld by a judge. In the first such case, which involved the U.S. Postal Service, electrical violations were found at a single location, but OSHA required similar corrections to be made to electrical installations at 350 other USPS locations. As the Department of Labor said at that time: “When the same safety violation is discovered in multiple locations of an organization, we need an enterprise-wide remedy to protect workers from the hazard,” says Solicitor of Labor M. Patricia Smith. “The Department of Labor will seek other opportunities to utilize this remedy.”
True to their word, such enterprise-wide mandates have become fairly common over the past few years. For example, only two corporate settlement agreements (requiring enterprise-wide abatement) were entered into by OSHA from 1970 through 2008. In the current administration, over 20 such agreements were put in place. As an example, in an August 2013 enterprise-wide settlement involving Walmart, the employer agreed to enhance safety and health practices and training related to trash compactors, cleaning chemicals, and hazard communications corporate-wide.
In 2011, OSHA issued a directive on the corporate-wide program, available at www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-152.pdf. The rationale is that, with a corporate agreement, OSHA is able to obtain formal recognition by the employer of the cited hazards and formal acceptance of the obligation to seek out and abate those hazards throughout all the workplaces under its control, while also leveraging agency resources more efficiently and avoiding numerous inspections of similar locations operated by the same employer.
When such abatement is agreed to, or is court-ordered, it becomes a binding term and if proof of abatement is not provided, the Secretary of Labor may bring other enforcement proceedings as allowed by law, including failure to abate proceedings under section 10 of the OSH Act, and/or actions under section 11 (b) of the OSH Act. Failure-to-abate actions are considered elevated violations, and can place the employer under the OSHA “SVEP” initiative (Severe Violators Enforcement Program), which triggers subsequent inspections of that employer’s other worksites for a period of at least 3 years.
The push for enterprise-wide abatement may change—at least in litigated cases—in light of a recent decision by Administrative Law Judge William Coleman in Secretary of Labor v. Delta Elevator Service Corp. The case dates back to 2011, when OSHA inspected a demolition worksite in Massachusetts where Delta was performing work on an elevator that was being used by the demolition crew to transport personnel and materials throughout the building during the project. The inspection was accident driven (a worker fell into the elevator shaft and was injured).
The case challenged the validity of the citations, particularly the application of a general industry standard to construction and demolition work (the standard, 1910.335, requires appropriate personal protective equipment (PPE) to be used when working near energized electrical parts and OSHA argued that Delta was not engaged in construction, but was there solely to operate and maintain the elevator) and whether adequate inspection of the elevator had occurred. However, the judge was also asked to address whether evidence supported the Secretary’s request for enterprise-wide abatement. On a separate issue, the judge declined to permit OSHA to amend the general industry citation, post-trial, to more specific construction industry standards because the issues were not addressed at the hearing and it would be prejudicial to Delta to permit such late amendment of the allegations.
The judge found that Delta was engaged in construction work because use of the elevator was an integral and necessary part of the overall construction project. The elevator was being used on a construction site and was being used to move both workers and bagged asbestos material and other construction items throughout the building, so that workers would not have to continually climb flights of stairs during the workday. Therefore, the general industry standard was inapplicable and the citation was vacated.
Judge Coleman then turned to the Secretary’s request for enterprise-wide abatement, which related to the electrical PPE citation that was vacated. The Secretary noted that Delta performs work under service contracts at over 2,000 jobs that are similar to the one at issue in this case. Delta did not have a policy of requiring its mechanics to wear voltage-rated gloves to protect against electrical shock or to wear arc-rated clothing to protect against arc flash—the “enterprise-wide abatement” actions that OSHA sought to impose on all 2,000 worksites. The judge rejected the agency’s argument.
He noted that, while enterprise-wide abatement has occurred when the parties have agreed to such action as part of a voluntary settlement agreement, there was no Occupational Safety & Health Review Commission precedent holding that such abatement could be ordered by the court under the “other appropriate relief” clause in Section 10(c) of the OSH Act. Delta had argued against such abatement by noting that it would require the judge to issue an order that was not based on any work performed at the worksite inspected, and would not be related to the subject of any allegation in the citation.
In plain language, OSHA wanted the judge to order abatement based solely upon claimed violations for which no evidence was presented except in the most general terms (no time, date, place, or location of the claimed violations). Such specificity is required under the Act. Therefore, the judge found no legal basis for ordering enterprise-wide abatement. It was unknown at press time whether OSHA would appeal this ruling, but the judge’s rationale is certainly useful if the issue of such broad abatement comes up in future settlement negotiations with the agency. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, December 2013
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