Magazine article Occupational Hazards

Caterpillar Case Tests Egregious Policy

Magazine article Occupational Hazards

Caterpillar Case Tests Egregious Policy

Article excerpt

Does OSHA have the authority to issue separate fines for each violation of the same regulation? What is considered a willful violation in the recording of injuries and illnesses? Those two issues were crucial as the Occupational Safety and Health Review Commission (OSHRC) decided the precedent-setting case of Secretary of Labor v. Caterpillar Inc.

In May 1987, OSHA issued a citation to Caterpillar Tractor Co.'s Aurora, Ill., facility alleging it failed to record 194 occupational injuries and illnesses on its OSHA 200 log for reporting year 1986. The Secretary of Labor later withdrew a number of items, leaving 170 alleged violations of the recordkeeping standard at 29 CFR 1904.2(a).

Finding that the violations were "egregious" and "willful," the Secretary proposed a $4,000 penalty for each violation, for total proposed penalties of $668,000.

Caterpillar contested the case on two grounds -- that the applicable standard was too vague and that OSHA's decision to assess separate penalties for each violation of the same standard (the so-called egregious policy) was inconsistent with Review Commission precedent.

Testifying before Administrative Law Judge Ramon M. Child, company officials said section 1904.2(a) is too vague to provide adequate notice of what injuries and illnesses must be recorded. Still, they claimed they were in compliance with the regulation.

The Secretary contended that section 1904.2(a) and section 1904.12(c), which defines the terms "medical treatment" and "first aid," clearly state what is a recordable injury or illness. Further, the Secretary said definitions are expanded upon in various publications from the Bureau of Labor Statistics (BLS). The Secretary referred specifically to BLS Report 412-3, "What Every Employer Needs to Know About Recordkeeping."

The head of Caterpillar's safety program testified that he was familiar with BLS Report 412-3 and said he used it as a reference manual in advising plants on OSHA recording requirements. He said he never issued instructions on how to fill out a 200 log to facilities. Further, Caterpillar said it did not think the contents of BLS 412-3 were mandatory.

Caterpillar's other argument centered on the idea that OSHA's decision to assess separate penalties for each violation of the same standard was inconsistent with Review Commission precedent. The Secretary of Labor argued that the practice, which began in 1986, was consistent with the OSH Act. …

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