The Angelica Textile case had been kicking around OSHA for almost 10 years before it was decided by the Occupational Safety and Health Review Commission on June 24 by a 2-1 vote with Commissioner James Sullivan,1 the newest member of the Commission, casting the deciding vote. The case provides guidance on how to avoid stiff penalties for repeat violations while emphasizing the proactive steps employers can take to keep their employees safe from recognized hazards.
Before this case was decided, OSHA asserted that in order to meet the "substantial similarity" standard to prove a repeat citation, all it had to show was that the same type of equipment or the same process or the same regulation was involved in the current case and a prior violation at any other company facility. OSHRC now says that evidence of substantial similarity can be rebutted if the employer demonstrates "disparate conditions and hazards associated with these violations of the same standard." A welcome development for businesses.
While that alone is helpful, the Commission also opened the door for employers to defend a repeat citation by showing the abatement actions they took. Here, the Commission is open to more nuance than the rigid application of any test. In Angelica Textile's case, the prior citation identified "critical deficiencies" in the company's compliance program. The company's abatement efforts "actively sought out and eliminated similar hazards." The new citation involved the same standard, but it did not involve a comprehensive failure. Rather, the current citation identified only two discrete deficiencies in the company's established safety program. The company's procedures, coupled with surveys that had been completed for each machine, and the secretary's prior acceptance of the company's abatement method, allowed the Commission to conclude that the company "took affirmative steps to achieve compliance and avoid similar violations in the future." That was sufficient to allow the Commission to conclude that a repeat citation was not warranted.
Most businesses that manufacture a product have a history of some minor OSHA violations that no one likely thinks about anymore. That history could come back to bite. This issue is more pronounced with businesses with multiple locations. Since repeat citations now carry a fine of up to $129,336, the Angelica Textile case offers employers a roadmap of actions they can take today to avoid serious fines the next time they have an OSHA inspection at any of their facilities. Now, Angelica Textile provides potential relief to companies that can demonstrate they implemented strategies to both abate the immediate condition but also implemented protocols to help identify future ones.
Footnote
1. Prior to joining the Occupational Safety and Health Review Commission, Commissioner Sullivan was a member with Cozen O'Connor's Labor & Employment Department and had served as the chair of the American Bar Association's Committee on Occupational Safety and Health.
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