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You and The Law
By Douglas B.M. Ehlke
OSHA’s Sweeping Sanctions
OSHA is on the move, attempting to impose sweeping abatement demands beyond statutory authority or appeal rights. Witness the contested case of Delta Elevator Serv. Corp., 24 BNA-OSHC 1968, where OSHA sought corporate-wide abate- ment beyond a single facility’s citation. OSHA argued for this under the OSHA Act’s Section 10(c) “other appropriate relief” clause. The Review Commission Administrative Law judge rejected OSHA’s abatement
and state OSHA agencies have placed employers under the Severe Violator Enforcement Program (SVEP). This requires mandatory follow-up inspec- tions, nationwide/statewide inspec- tions of related workplaces or facili- ties and hiring of safety or health consultants. The program also required the employer to submit to OSHA its log of work-related injuries and notifi- cation of all or specified serious-injury accidents. Adverse press releases are
request at trial
because there is no
precedent or case
law to support
such a request,
even though some
employers have
agreed to such
expansive abate-
ment in negotiat-
ed voluntary-settlement agreements.
To settle citation appeals, OSHA has begun demanding corporate adoption of and compliance with unadopted, non- mandatory I2P2 comprehensive safety- program improvement procedures.
Then after issuing “willful” or “repeat” citations, often after a fatality, even to employers never before cited with any “serious” citations, federal
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and envi-
ronmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 tel. 253/839-5555
fax. 253/874-5475 dehlke@ehlkelawoffices.com
usually released by the OSHA agency. When can you
be removed from OSHA’s Severe Vio- lator list? No one seems to know. There is no employer appeal process related to SVEP listing.
One of our clients recently was cited with a Repeat Serious violation after a fatality despite never before having a serious violation in its history. OSHA claimed that placement into SVEP was “automatic” (and without any discre- tion) in a fatality situation whenever even a single “Repeat” is issued. The contention: SVEP placement is required after any fatality:
• Even where there is no prior seri- ous violation of any type;
• Even with no final order on the repeat serious violation; and
• Even where the belief is that the employer has an effective safety pro- gram.
Following company-agency nego- tiations that one repeat-serious citation does not qualify under the directive that requires repeated [serious] viola- tions or citations that are plural, not singular, an amended citation was quickly issued, withdrawing SVEP placement of the employer. MF
“OSHA has begun demanding corporate adoption of and compliance with unadopted, non-mandatory I2P2 comprehensive safety-program improvement procedures.”
64 MetalForming/April 2015
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