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Forklift safety case tests OSHA’s authority to order enterprise-wide abatement measures

Sources: Occupational Safety & Health Administration; CP staff

An administrative law judge has determined the independent Occupational Safety and Health Review Commission may have authority under the Occupational Safety and Health Act (OSH Act) to order abatement measures beyond specific violations for which Warren, Mich.-based supply chain solutions and trucking services provider Central Transport, LLC has been cited.

OSHA proposed $330,800 in fines in November 2014, stemming from alleged violation of 14 workplace safety and health standards at a Billerica, Mass., terminal—one of nearly 200 Central Transport locations across the U.S. and Canada. Andover (Mass.) Area Office inspectors observed forklifts with “a variety of defects, including non-functioning horn and/or lights, a damaged tire, and a battery that leaked corrosive acid,” according to a Review Commission document. “Employees operated the forklifts as much as four hours per day and were exposed to struck-by and tip over hazards.”

Litigation commenced through the Labor Department in December 2014 as Central Transport filed a notice of contest with the Review Commission. An agency complaint alleged that the company failed to comply with the OSHA powered industrial truck safety standard at locations other than the Massachusetts terminal, and requested a Review Commission order compelling Central Transport to comply with the standard at all of its locations.

A Central Transport motion asked the Commission to strike the Labor Department's claim for enterprise-wide abatement, arguing that the OSH Act does not permit such expansive measures. OSHA Administrative Law Judge Carol Baumerich denied the motion, holding that the Act's provision authorizing the remedy of "other appropriate relief" provides the basis for allowing the agency's claim for enterprise-wide abatement—at all locations where like violations exist—to proceed to trial. She also denied Central Transport's request for a discovery and litigation stay of the claim for enterprise-wide abatement.

"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," says Regional Solicitor of Labor, New England Michael Felsen.

“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," adds OSHA Regional Administrator, New England Kim Stille.