Grocery Store Hit with $500K in Safety Fines

The bulk of the citations against Trade Fair Supermarkets in Astoria and Jackson Heights sections of Queens, New York allege repeated violations for blocked exits, unguarded vertical ban saws used in preparing meats, and inadequate safety information and training for hazardous cleaning chemicals, including bleach and liquid detergent. The company was cited for many repeat violations because other stores had similar violations four years ago.

This case is a marker for the agency’s increased emphasis on holding employers with multiple locations responsible for repeat violations when it cites similar violations at related workplaces. Prior to the Obama Administration, each of a company’s locations was treated separately. Under Obama, OSHA focused on treating multi-locations of a single employer as a single location.

Let this also be a reminder that OSHA generally looks back five years from the date of citation to determine whether the company has been cited for similar violations. Prior to the Obama Administration, OSHA looked back 3 years. The company here was cited for repeat violations since it had similar citations 4 years ago. No one yet knows whether Trump’s OSHA will reinstate a 3-year look back period of continue with Obama’s 5-year period.

OSHA’s repeat citations can cost a company up to $126,749 per violation. Saving a few hundred dollars from a small fine, only to be set up for a $125,000 fine a few years later, is not a good trade off. Through a smart settlement or litigation strategy, employers can get citation items withdrawn, problematic, cited standard, modified, or violation language re-written to eliminate or mitigate the risk of future repeat violations.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Union’s Right to Walk Around Your Company with OSHA Being Challenged in Court

Thankfully, the National Federation of Independent Business (“NFIB”) has challenged a rule that has been around for only a short period of time called the Union Walk Around Rule.

For background, when OSHA inspects a workplace, an OSHA Compliance Officer does a “walk around” where he literally walks around the workplace looking for violations of the OSH Act. Employers and/or their representative (OSHA consultant) are permitted to accompany the Officer during the walk around. Pursuant to the 2013 Union Walk Around Rule, a union official is permitted to accompany an employee during a walk around of a non-union workplace. Let me repeat that. A non-union workplace must allow a union official, whose job is to organize workers, complete access throughout the workplace during an OSHA inspection.

This is how it plays out: a union is trying to organize a workplace and some employees support the organizing drive. To show the employees that the union is working for them, the union instructs an employee to call OSHA and allege a violation of the OSH Act. There doesn’t need to be merit to the allegation; it’s just an allegation that triggers the OSHA investigation. When the inspector shows up to inspect, the union organizer is permitted to walk with the inspector. This grandstanding allows all workers to see the organizer, gives the organizer the opportunity to speak with workers while they are working, and provides an opportunity for the union to see “behind the scenes” of the company it is trying to organize.

NFIB argues that nothing in the OSH Act allows a non-employee to accompany the compliance officer. Stay tuned for the outcome. This will be interesting.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Union Unlawfully Denied Access to Manufacturing Facility for Independent Investigation Because Company Permitted Others to Tour Facility

In September 2011, an employee of Caterpillar, Inc., who was a member of the United Steelworkers union (USW), died after being crushed by a heavy piece of equipment. The accident was properly reported to the police and the Occupational Safety and Health Administration (OSHA).

The president of the Local Union notified the USW Emergency Response Team (ERT). The ERT dispatched a representative to the facility, but she was denied entrance by company officials. Caterpillar assured the ERT that it was cooperating with the local police’s and OSHA’s investigations and additional investigation by the union was not required by the collective bargaining agreement and would not be productive. The Company also cited its need for protection of confidential information about plant processes as reasons to prohibit the union access to investigate the death.

The National Labor Relations Board found that Caterpillar allowed customers, dealers, technical groups, and students to tour the plant during working hours. Specifically, plant tours could pass the area where the accident occurred, and there was no evidence the company required participants to sign nondisclosure agreements as a condition of visiting the plant, nor were products or processes concealed during the tours.

Caterpillar, Inc. violated its duty to bargain with the United Steelworkers Union when it denied the union’s request to send an accident investigator into a Wisconsin manufacturing plant after a workplace fatality.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Good / Bad News: Less OSHA Investigations in 2014, but Investigations Will Be More Thorough

OSHA projects fewer employers will be inspected for safety violations in 2014 so that inspectors can undertake investigations that are more comprehensive according to the agency’s 2014 budget request.

OSHA plans to conduct 39,250 inspections in 2014, down from 41,000 in 2013. Despite OSHA’s aggrandizing about the fewer inspection, it’s really not a huge reduction in number.

OSHA plans to conduct more health inspections – like 450 more than last year – in facilities where emerging chemical and health issues are likely to arise. Refineries, chemical plans, and where employees are vulnerable to violence are also likely to see an increase in inspections. However, OSHA expects to do 2,200 fewer safety inspections next year.

According to OSHA, this change is simply reallocating its priorities to meet its budgetary constraints. Not all inspections are created equally. On average, a safety inspection takes 22 hours and a health inspection takes 34 hours. An ergonomics inspection can take hundreds of hours, while a process safety management inspection of an oil refinery can take 1,000+ hours.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

Good & Bad News: Less OSHA Investigations in 2014, but Investigations Will Be More Thorough

OSHA projects fewer employers will be inspected for safety violations in 2014 so that inspectors can undertake investigations that are more comprehensive according to the agency’s 2014 budget request.

OSHA plans to conduct 39,250 inspections in 2014, down from 41,000 in 2013. Not a huge reduction in number.

OSHA plans to conduct more health inspections – like 450 more than last year – in facilities where emerging chemical and health issues are likely to arise. Refineries, chemical plans, and where employees are vulnerable to violence are also likely to see an increase in inspections. However, OSHA expects to do 2,200 fewer safety inspections next year.

According to OSHA, this change is simply reallocating its priorities to meet its budgetary constraints. Not all inspections are created equally. On average, a safety inspection takes 22 hours and a health inspection takes 34 hours. An ergonomics inspection can take hundreds of hours, while a process safety management inspection of an oil refinery can take 1,000+ hours.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.