## Commission Decides Ergonomics Hazards Citeable Under the "General Duty Clause"

 

 

 

 

**COMMISSION DECIDES ERGONOMICS HAZARDS CITEABLE UNDER THE "GENERAL DUTY CLAUSE"**

In a much anticipated decision involving the issue of ergonomics, a majority of the Occupational Safety and Health Review Commission ruled that the "general duty clause" of the job safety act may be used to cite employers for safety hazards of work involving lifting and repetitive motions. This is the first time the Commission has considered the applicability of the general duty clause to ergonomics.  That clause, section 5(a)(1) of the Occupational Safety and Health Act, requires employers to provide a work place free from recognized hazards which could cause death or serious physical harm. The Occupational Safety and Health Administration (OSHA) uses this clause when no specific job safety rule covers a potentially unsafe condition.

The case stems from an inspection of Pepperidge Farm, Inc.'s Downingtown, Pennsylvania facility, which produced cookies and other baked goods.  OSHA compliance officers cited the plant for 389 alleged willful violations involving repetitive motion hazards, lifting hazards, and record keeping infractions, and proposed penalties of nearly $1.4 million.  The penalties were proposed under the Secretary of Labor's instance-by-instance, or "egregious," penalty policy.

The Commission majority of Chairman Stuart E. Weisberg and Commissioner Daniel Guttman found that abatement of the alleged lifting and repetitive motion hazards can be required under the general duty clause. However, the majority agreed with the judge's ruling that vacated 175 willful general duty charges alleging repetitive motion hazards. They found that while the hazards existed and were recognized, and that correction of the hazards can be required under the clause, the Secretary failed to meet her burden of proof to show that further hazard abatement action was required in light of what the company had already done.  The majority concluded "that the appropriate response to the hazard at Downingtown was a process that included actions selected from a menu of alternatives."  Noting that Pepperidge had engaged in a process, the majority further concluded "that the Secretary has not shown that the additional steps proposed by the Secretary and not taken by Pepperidge were feasible and that their efficacy in reducing the hazard was so compelling that the failure to have implemented them by the time of the inspection rendered Pepperidge's process inadequate."

The majority also agreed with the judge that lifting citations at issue in the case were willful violations of the general duty clause, but reduced the penalty from $105,000 to $20,000.  Chairman Weisberg and Commissioner Guttman had divergent views regarding the penalty assessment for these citations and therefore issued separate opinions on this matter. A total penalty of $309,603 was assessed by the Commission for all violations.

The case came before the Commission after requests by Pepperidge Farm and the Secretary of Labor that it review a ruling by an Administrative Law Judge who assessed penalties of $394,603. The judge's ruling affirmed 21 of  27 alleged willful lifting violations cited under the general duty clause and vacated the others.  The judge also vacated 175 willful general duty charges alleging repetitive motion hazards to biscuit line employees, while upholding 176 of 179 willful record keeping violations.

Regarding the record keeping violations, Pepperidge only contested their willful designation and the instance-by-instance penalties totaling $289,603. The Commission majority upheld the judge's ruling regarding the willfulness and associated penalties.  They said the record demonstrated "that various officials in the management of both Pepperidge's Downingtown facility and Pepperidge's corporate headquarters as well as Pepperidge's parent, Campbell Soup, had a heightened awareness of the requirements" of the job safety standards covering the recording of injuries and illnesses.  Regarding the penalties, the majority said they  "were appropriate under the penalty factors set forth in section 17(j)" of the Occupational Safety and Health Act.  Those factors link the penalty amount to the size of the employer, the gravity of the violation, the employer's good faith and the firm's history of prior violations.

In a separate, dissenting opinion, contending that most courts will not accept ergonomic evidence to establish causality, Commission Velma Montoya found that repetitive motion is not a hazard within the meaning of the general duty clause.  She was also of the opinion that the lifting violations should be remanded so that a full record could be developed on which to decide whether lifting is a hazard within the meaning of the general duty clause. In addition, Commissioner Montoya concluded that the record keeping violations were not willful and stated that she would have grouped these violations and assessed a single penalty.