Historically, OSHA inspection and enforcement has focused on the workplace. OSHA goes to a particular worksite and issues citations for the violations it uncovers.
But to the folks now running OSHA, this isn’t an efficient way to run a safety system. In a world dominated by big national corporations, the way to get results is to target not the individual worksite but the corporate enterprise that controls them—attacking the head of the octopus rather than its various tentacles.
At least that’s OSHA’s current thinking. A couple of weeks ago, I talked about how OSHA has been using a theory called “enterprise liability” to hold entire companies accountable for violations uncovered at specific sites. But the principal instrument OSHA has been using to go after companies with multiple locations is the repeat violation.
The Law of Repeat Violations
Sec. 17(a) of the OSH Act) lets OSHA issue up to $70,000 in additional penalties against companies that commit “repeat” violations. The rule makes a lot of sense. After all, any company that keeps on committing the same safety violation over and over again deserves a swift kick in the posterior.
But it’s not just the bad eggs that don’t care about safety who get hit with repeat violation penalties—and the stigma they carry. Over the years, OSHA has extended the repeat violation to hold a facility liable for offenses committed at other locations owned by the same company within the past 3 years.
To be fair, the OSHA of David Michaels didn’t invent this strategy. But it has expanded its use. For example, in 2010, OSHA extended the “look back” window from 3 to 5 years.
More noteworthy is who’s getting cited. In the past, repeat violations for violations at different sites were generally levelled at construction companies. Given the transient nature of construction sites, targeting construction firms for repeat violations made a lot of sense.
But since spring 2011, OSHA has been increasingly using the strategy on non-construction firms, including major national corporations like Walgreen’s, Rite Aid, Sears, Lowe’s, Home Depot, Best Buy, Jiffy Lube, Hostess Brands and Tyson Foods.
Tuesday (Feb. 7, 2012), it was Wal-Mart’s turn.
The Wal-Mart Case
The case began when somebody called the OSHA Buffalo Area Office to complain about safety at Wal-Mart’s Rochester, NY, store. Inspectors found a mess of problems—everything from obstructed emergency exits, lack of LOTO procedures and an unguarded grinding machine.
If the store had been a single-site operation, its fine would have been $77,500 for 14 serious violations. Ugly stuff, to be sure. But because the store was part of a national chain, OSHA added $288,000 in repeat violations to the bill. All 10 of the repeat violations were citations issued to other Wal-Mart stores between 2008 and 2010, including faraway locations like Jonesboro, AK, Mobile, AL, Plant City, FL, Rincon, GA, Fargo, ND, and Tulsa, OK.
OSHA’s Repeat Violation Crusade
Wal-Mart is in good company. Here’s a summary of some of the key cases involving separate site repeat violations against non-construction companies since April 2011:
|CASE||VIOLATION & PROPOSED FINE||DESCRIPTION|
|Hostess Brands, Reg. 1, Jan. 2012||$62.5K for 2 repeats—machine guarding and PPE||Maine snack cake plant cited for hazards similar to those the company’s Columbus, GA and Schiller Park, IL plants were cited for in 2010|
|Central Transport International, Reg. 5, Dec. 2011||$132K for 4 repeats—forklift, , PPE, fire extinguisher and emergency response plan||Illinois freight company cited for violations originally cited at “numerous facilities” from 2006 to 2011|
|Metalico Rochester Inc., Reg. 2, Nov. 2011||$73K total fine including unspecified amount for 2 LOTO repeats||Rochester, NY, recycling plant cited for violations originally cited at company’s Pittsburgh location|
|DeMoulas Super Markets Inc., Reg. 1, Oct. 2011||$225.5K for 7 repeats, including machine guarding, bloodborne pathogens and forklifts||Grocery chain with 80 locations in Mass/NH cited for repeats based on violations cited at 8 of its Mass. and NH stores|
|Lowe’s, Reg. 3, Oct. 2011||$96K total against 3 Pennsylvania stores in national retail chain for 10 repeats||$61.8K against Carlisle store for 5 repeats, including Hazcom, PPE, forklifts and electrical$.99K against Hanover store for 3 PPE repeat violations$33.2K against Palmyra store for 2 PPE repeat violations|
|Jiffy Lube, Reg. 5, Oct. 2011||$52.7K total fine including unspecified amount for 1 repeat—failing to keep floors dry to prevent falls||Texas Jiffy Lube cited for violation originally cited at Kansas Jiffy Lube|
|Sears Roebuck and Co., Reg. 4, Sept. 2011||$110 K for 3 repeats—blocking of exit access, failing to post signs along exit routes and failing to repair damaged storage racks||National retail chain cited for repeat violations originally cited in NH store in 2007, NY store in 2008 and PA store in 2010|
|Rite Aid, Reg. 2, Sept. 2011||$93.5K for 5 repeats—emergency exits blocked by garbage, unsafe stacking of merchandise, electrical panels blocked by cardboard and totes containing merchandise, ungrounded electric power strip and exposing stacking employees to electrical hazards||Brooklyn store hammered for repeats originally cited in Bronx and Rome, NY, stores|
|Koppers Inc., Reg. 6, Sept. 2011||$78.1K total fine including unspecified amount for 2 repeats involving combustible dusts and forklifts||Texas facility of Pittsburgh-based treated wood manufacturer cited for violations originally cited at company’s Denver and Little Rock plants|
|Cenex Harvest States Inc., Reg. 8, Sept. 2011||$105K for 3 repeats—unguarded pits and floor holes and combustible dust accumulations||Columbus, Montana grain handling facility cited for violations originally cited at company’s Wolf Point, MT and North Dakota facilities|
|Wheels America San Antonio I Ltd, Reg. 6, Sept. 2011||$45K total fine including unspecified amount for 1 repeat—no covers on electrical conductor boxes||Schertz, Texas, wheel repair welder cited for violation similar to one the company’s Houston location was cited for in 2007|
|Monro Muffler Brake Inc., Reg. 1, Aug. 2011||$80K for 3 repeats—fire extinguishers, Hazcom and eye protection||Rochester, NY-based auto service company cited for repeats after violations similar to ones cited in NY location in 2009 and Connecticut location in 2010 found at Mass. location|
|Home Depot, Reg. 6, July 2011||$50K for 2 repeats—forklifts and fall protection equipment||Chicago Home Depot store for same violations Rochester, NY Home Depot store was cited for in 2008|
|Walgreen’s Co., Reg. 4, July 2011||$99K for 3 repeats—unsecured compressed gas cylinders, ladder and fall protection and blocking exit routes||Georgia Walgreen’s cited for same 3 violations Chicago Walgreen’s was cited for in 2008|
|Pilgrim’s Pride Corp., Reg. 4, July 2011||$77K for 2 repeats—accumulation of grain dust and letting electrical components accumulate combustible dust||Alabama chicken feed producing facility cited for same 3 violations company’s Georgia facility was cited for in 2009|
|Tyson Foods Inc., Reg. 7, July 2011||$71.5K total fine including unspecified amount for repeat PSM violation—failing to inspect and ensure system relief valves installed in accordance with manufacturer’s guidelines||Dakota City, Nebraska, red meat processing plant cited for violation similar to the one the company’s Lexington, Nebraska, plant was cited for 6 months earlier|
|Howard Industries Inc., Reg. 4, July 2011||$169.5K total fine including unspecified amount for 4 repeats—machine guarding, lack of non-combustible welding screens and flexible cords instead of fixed wiring||Ellisville, MI manufacturing plant cited for same violations as company’s Laurel, MI plant was cited for in 2009|
|Best Buy Co. Inc., Reg. 4, May 2011||$76K total fine including unspecified amount for 2 repeats—lack of PPE and guardrails||Minnesota Best Buy gets a repeat because OSHA issued a similar citation against an Illinois Best Buy store in 2008|
|Parker Hannifin Corp., Reg. 4, May 2011||$407K for 16 repeats—including LOTO, machine guarding, electrical, unsafe accumulation of air pressure in cleaning equipment and emergency preparedness||Machine manufacturing plant in Mississippi owned by Ohio-based firm with 170 facilities cited for violations found “at other company locations,” including another Mississippi location|
|US Postal Service, Reg. 2, May 2011||$93.5K total fine including unspecified amount for 5 repeats—blocked exit routes and electrical panels, failure to mount fire extinguishers and forklift violations||Manhattan distribution center cited for same violations other NY USPS locations were cited for including facilities in Binghamton (upstate), Queens and Long Island|
|Webb-Stiles, Reg. 4, April 2011||$16.2K for 2 repeats—LOTO and machine guarding||Conveyor manufacturing plant in Alabama cited for same violations company’s Ohio corporate office was cited for in 2009|
2 Ways to Protect Yourself
The heightened risk of repeat violations for citations at multiple locations certainly provides greater incentive for companies to challenge OSHA citations. Click here for a discussion about whether to contest OSHA citations;
You can and should also take steps to cut the risk of being cited for repeat violations occurring at separate facilities.