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Repeat Redefined

BY: Carl Habekost, Esq.

An important case is currently pending before the United States Court of Appeals for the Second Circuit involving the definition of “Repeat” for an OSHA violation.  In Acosta v. Angelica Textile Services, Inc., the facts reveal that the company provided commercial linen cleaning services using very large washing machines called “combined batch washers” (CBW).  The cleaning process consisted of a long, cylindrical tunnel with “washer modules”.  An auger ran through the center of each CBW and spun water and linens as they passed through the washer modules.  An electric motor drove a chain-a-sprocket that turned the CBW’s tunnels.  Also, compressed air delivered hot water, steam, and wash chemicals into the tunnels.  The employees were required to enter the modules when a CBW needed maintenance or when linens became jammed inside a tunnel.  Once inside the CBW tunnel, employees had limited visibility and could not see from one end to the other.

 

On June 5, 2008, OSHA initiated an inspection of one of the cleaning facilities for the employer.  OSHA issued citations to the employer on September 30, 2008, alleging numerous violations including two “Repeat” violations of the Lock Out Tag Out standard and the Permit Required Confined Space standard.  Previously, in 2005, the company was cited by OSHA for Lock Out Tag Out and Permit Required Confined Space violations.  The company contested the citations, and on August 27, 2012, an Administrative Law Judge issued a decision that affirmed 2 serious citations but vacated all of the remaining citations including the “repeat” citations.

 

On September 20, 2012, the Secretary of Labor, on behalf of OSHA, filed for discretionary review before the Commission.  The Commission granted review, and on July 24, 2018, issued a 2 to 1 decision and found the violations were not properly characterized as “Repeat” citations.  The Commission noted that the citations from 2005 involved wholesale deficiencies because the company had no Lock Out Tag Out nor Permit Required Confined Space programs at all.  The company thereafter developed the programs and abated the 2005 violations.  The Commission indicated that the new citations in 2008 were about “nuance” focusing on whether the new machine-specific LOTO procedures and PRCS procedures were detailed enough.  The Commission referred to the seminal case of Potlatch which defined a repeat violation as one where there was a prior Commission final order against “the same employer for a substantially similar violation”.  The assessment of a “substantially similar violation” may consider several factors bearing on the similarity of violative conditions. The fact that the citations in 2005 and 2008 involve the same cited standards only create a “rebuttable presumption” of a repeat violation.  The company rebutted the presumption and showed that the 2008 citations were not “substantially similar”.  A “principle factor” of analysis to assess repeat liability is whether the violations resulted in substantially similar “hazards”, not just citations.  The Commission also noted that the facts do not indicate the employer failed to learn from the 2005 citations.  On the contrary, the company developed entirely new LOTO and PRCS programs. Therefore, even though the violations in 2005 and 2008 involve the same standards, the Commission found the employer’s intervening efforts to implement LOTO and PRCS programs from 2005 to 2008 resulted in “substantially different conditions and hazards.”  The Commission did not affirm the violations as “Repeat” citations.

 

On September 21, 2018, the Secretary, on behalf of OSHA filed for review before the United States Court of Appeals for the Second Circuit.  As of the end of 2019, the case has been fully briefed.  We will monitor the outcome of the Second Circuit’s decision.  In the meantime, please contact a member of our L&E section with questions or concerns.

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