Archive for the ‘OSHA – MSHA Violations’ Category
The U.S. Department of Labor’s Occupational Safety and Health Administration has cited two Florida manufacturers and two Florida-based distributors of hair products containing formaldehyde for 16 health violations involving alleged failures to protect their employees from possible formaldehyde exposure and to communicate with the products’ users, such as salons and stylists, about the hazards of formaldehyde exposure. Proposed penalties for the companies total $49,200.
US Department of Labor’s OSHA cites Florida manufacturers and distributors of hair products containing formaldehyde for health violations
Companies failed to protect workers, warn product users of hazards
ATLANTA — The U.S. Department of Labor’s Occupational Safety and Health Administration has cited two Florida manufacturers and two Florida-based distributors of hair products containing formaldehyde for 16 health violations involving alleged failures to protect their employees from possible formaldehyde exposure and to communicate with the products’ users, such as salons and stylists, about the hazards of formaldehyde exposure. Proposed penalties for the companies total $49,200.
“Employers are responsible for identifying the risks associated with producing and using these hair products, as well as for taking appropriate measures to ensure that they protect their own employees and other workers who may be using their products, such as stylists, from any potential hazards,” said Cindy Coe, OSHA’s regional administrator in Atlanta.
OSHA’s inspections were initiated based on a referral by Oregon’s Occupational Safety and Health Division, which tested more than 100 product samples at 50 salons using hair smoothing or straightening products. Some products causing formaldehyde exposure were traced back to the Florida manufacturers and distributors. Formaldehyde can irritate the eyes and nose, and cause coughing and wheezing. It is a sensitizer, which means that it can cause allergic reactions of the lungs, skin and eyes, such as asthma, rashes and itching. It also has been linked to cancer.
Both M&M International Inc. in Delray Beach, a distributor of the straightening hair product “Marcia Teixeira,” and Copomon Enterprises in Boca Raton, a distributor of the keratin-based hair product “Keratin Complex Smoothing Therapy,” have been cited for three serious violations and fined $12,600 each for failing to ensure that material safety data sheets reflected the content of formaldehyde in the products or the hazards associated with formaldehyde exposure, as well as for failing to develop a written hazard communication program for their own employees. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
Pro Skin Solutions Inc. in Orlando, a manufacturer of keratin-based products used for hair straightening, has been cited for five serious violations with penalties of $15,000. Violations include failing to establish a written respiratory protection plan, provide an emergency eyewash station, develop appropriate procedures to protect employees in the event of an emergency and develop or implement a written hazard communication program. The company also failed to address formaldehyde exposure and inhalation hazards, including possible cancer-causing effects, on material safety data sheets for the formaldehyde-containing products.
Additionally, Pro Skin Solutions has been cited for two other-than-serious violations with no monetary penalties for failing to maintain air sampling records and provide written procedures for evaluating chemical hazards. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.
Keratronics Inc. in Coral Springs, a manufacturer of keratin-based products used for hair straightening, has been cited for three serious violations with penalties of $9,000 for failing to provide an eyewash station for employees using corrosive products, evaluate the hazards of keratin-based products for development of the material safety data sheets, and develop or maintain a written hazard communication program on handling chemicals such as timonacic acid, formalin, acetic acid and hydrolyzed keratin.
All manufacturers, importers and distributers are required by OSHA standards to identify formaldehyde on any product that contains more than 0.1 percent formaldehyde, either as a gas or in a solution that can release formaldehyde at concentrations greater than 0.1 part per million. The material safety data sheet that comes with the product also must include this information, as well as explain why the chemical is hazardous, what harm it can cause, what protective measures should be taken and what to do in an emergency. The sheets are used by employers to determine products’ potential health hazards and methods to prevent worker exposure.
Federal OSHA issued a hazard alert earlier this year to hair salon owners and employees about potential formaldehyde exposure resulting from working with some hair smoothing and straightening products. It can be viewed at http://www.osha.gov/SLTC/formaldehyde/hazard_alert.html.
In addition, the U.S. Food and Drug Administration recently issued a warning letter to GIB LLC in North Hollywood, Calif., doing business as Brazilian Blowout, concerning misbranding relating to formaldehyde. That letter is available at http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm270809.htm.
Keratronics, M&M International and Copomon Enterprises were inspected by OSHA’s Fort Lauderdale Area Office, 1000 S. Pine Island Road, Suite 100, Fort Lauderdale, Fla. 33324; telephone 954-424-0242 . Pro Skin Solutions was inspected by OSHA’s Tampa Area Office, located at 5807 Breckenridge Parkway, Suite A, Tampa, Fla. 33610; telephone 813-626-1177 . To report workplace incidents, fatalities or situations posing imminent danger to workers, call the agency’s toll-free hotline at 800-321-OSHA (6742).
The companies have 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
ARB CASE NO. 11-070
ALJ CASE NO. 2010-NTS-003
DATE: August 8, 2011
In the Matter of:
R. SCOTT LEWIS,
AUTHORITY, NEW YORK CITY TRANSIT
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER DENYING MOTON FOR WRIT OF MANDAMUS
The Complainant, R. Scott Lewis, has filed a complaint under the employee protection provisions of the National Transit Systems Security Act1 and its implementing regulations.2 On July 18, 2011, Lewis filed with the Administrative Review Board a document entitled “USDOL-OSHA Review Board Writ of Mandamus to Lower Court.” In this document, “complainant is petitioning the USDOL-OSHA APPEAL REVIEW BOARD [sic] to compel Judge Adele H. Odegard to issue a final decision on a motion for summary judgment in USDOL-OSHA Civil Action No. 2010-NTS-003.”
In support of this Motion, Lewis avers:
WHEREAS, this petition is within the complainant’s right and is within accordance to the “Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges” set forth at 29 C.F.R. Part 18.
This petition is to inform the higher court that the Judge in the lower court has abstained from ruling within the prescribed time frame of 60 days (i.e. 5 MAY 11). CONSEQUENTLY, complaint [sic] prays for relief by way of the US DOL-OSHA ARB.
The Administrative Review Board’s authority to act for the Secretary of Labor is limited by the terms of the Secretary’s delegation of authority to the Board.3 This delegation includes the authority to issue final administrative decisions upon appeals of final decisions of Department of Labor Administrative Law Judges and the discretionary authority to review interlocutory rulings in exceptional circumstances, in cases arising under the NTSA.4 Lewis has failed to establish how, in the absence of a decision by an ALJ, the Board has authority to act in this matter at this stage of the proceedings. The Secretary’s Order does not specifically delegate mandamus authority to the Board. Nor has Lewis identified any statutory or regulatory authority or case precedent establishing the Board’s authority to grant the mandamus order he has requested.
In any event, even if the Board has authority to issue mandamus orders, “the remedy of mandamus is reserved for extraordinary circumstances in which the petitioner demonstrates that his right to issuance of the writ is clear and indisputable and that no other adequate means to obtain relief exist.”5 The United States Court of Appeals for the Second Circuit6 has held that there are three conditions that a party requesting an order of mandamus must establish before a writ of mandamus may issue.7 The party requesting mandamus: (1) must establish that it has no other adequate means to obtain the relief it desires, (2) the court issuing the relief must conclude that the writ is appropriate under the circumstances, and (3) the party requesting the order must demonstrate that the right to have the writ issued is “clear and indisputable.”8
Addressing these requirements in reverse order, Lewis has failed to cite to any statutory provision, regulation, or case precedent establishing that the ALJ had a
mandatory 60-day deadline in which to issue her decision. In any event, where the statute or regulations have established time periods for the investigation and adjudication of whistleblower complaints, the Board has considered these periods to be directory rather than mandatory.9 Therefore, Lewis has failed to demonstrate that his right to the order is “clear and undisputable.”
Furthermore, given that Lewis has failed to establish that the Board has authority to issue mandamus orders and that he would have an indisputable right to the issuance of such order in any case, we do not conclude that the issuance of such order is appropriate under the circumstances. Finally, if Lewis is dissatisfied with the length of time it is taking the ALJ to adjudicate his complaint, he does have another option. Under the NTSA, if the Secretary of Labor has not issued a decision within 210 days after the date on which the complainant filed his complaint and the delay is not due to the complainant’s bad faith, the complainant may obtain de novo review in the appropriate district court of the United States.10
Consequently, because Lewis has failed to establish that the Board has authority to issue mandamus orders and because he has an alternative to litigating his case before the Department of Labor, we are not convinced that issuing the writ would be appropriate under the circumstances, and Lewis has not established a “clear and indisputable” right to the writ, his motion for a writ of mandamus is DENIED.
FOR THE ADMINISTRATIVE REVIEW BOARD:
Janet R. Dunlop
Note: Questions regarding any case pending before the Board should be directed to the Board’s paralegal specialists:
1 6 U.S.C.A. § 1142 (Thomson/West Supp. 2011)(NTSA).
2 29 C.F.R. Part 1982 (2010).
3 See Secretary’s Order No. 1-2010 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 75 Fed. Reg. 3924 (Jan. 15, 2010).
4 Id. at §§ (c) 28, 48.
5 Byrd v. Reno, 180 F.3d 298, 302 (D.C. Cir. 1999).
6 The Court of Appeals for the Second Circuit would have jurisdiction of any appeal of the Department of Labor’s final decision in this case. See 6 U.S.C.A. § 1142 (c)(4)(A).
7 In re The City of New York, 607 F.3d 923, 933 (2010) citing Cheny v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380 (2004).
9 See Timmons v. Mattingly Testing Servs., 1995-ERA-040 (Sec’y June 21, 1996). See also Brock v. Roadway Express, Inc., 481 U.S. 252, 268 (1987)(“The Secretary interprets these time requirements not as mandatory but rather as ‘directory in nature.’”).
10 6 U.S.C.A. § 1142(c)(7).
Complaint filed with the Department of Labor’s Occupational Safety and Health Administration (OSHA) alleging that the Respondent retaliated against him in violation of the employee protection provisions of Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 (SOX).
ARB CASE NO. 11-052
ALJ CASE NO. 2010-SOX-046
August 5, 2011
In the Matter of:
TEKNI-PLEX, INC., COLORITE POLYMERS
a/k/a/ COLORITE PLASTICS CO., a
Tekni-Plex, Inc., PURETEC INTERNATIONAL,
and MIGUEL NISTALL
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
For the Complainant:
Randy Santoro, pro
se,Jersey City, New Jersey
Ernest Edward Badway, Esq.; Fox
Rothschild LLP, New York, New York
Before: Paul M. Igasaki, Chief Administrative Appeals
Judge, and Luis A. Corchado, Administrative Appeals Judge
FINAL DECISION AND ORDER DISMISSING APPEAL
Randy Santoro, the Complainant, filed a complaint with the
Department of Labor’s Occupational Safety and Health Administration (OSHA)
alleging that the Respondent retaliated against him in violation of the employee
protection provisions of Section 806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002
(SOX).1 OSHA found that the
Respondent did not fall within the SOX’s coverage, and therefore it denied
Santoro requested a hearing before a Department of Labor
Administrative Law Judge (ALJ). On April 20, 2011, the ALJ issued a Recommended
Decision and Order (R. D. & O.). The ALJ concluded that the Respondent does
not fall within SOX’s coverage because it does not issue securities registered
under section 12, nor is it required by law to file reports under section 15(d)
of the Securities Exchange Act.2
Santoro filed a petition for review with the Administrative
Review Board.3 On May 17, 2011, the
Administrative Review Board issued a Notice of Appeal and Order Establishing
Briefing Schedule. The terms of the Board’s order required the Complainant, to
file an opening brief, not to exceed thirty (30) double-spaced typed pages, on
or before June 9, 2011. The Board further cautioned Santoro, that if he failed
to timely file his brief, the Board could dismiss his petition for review or
impose other sanctions.
Although warned that the Board could dismiss the
Complainant’s petition for review if he did not timely file his opening brief,
Santoro did not file a brief in compliance with the Board’s order. The
Respondent then filed a motion requesting the Board to dismiss Santoro’s
petition for review because he had failed to comply with the Board’s briefing
Accordingly, we ordered Santoro to show cause no later than
July 14, 2011, why the Board should not dismiss his petition for review because
he failed to prosecute his appeal in accordance with the Board’s briefing
order4 . The Board again cautioned
Santoro that if he failed to timely respond to the Board’s Order, it could
dismiss his appeal without further notice. Santoro has failed to file a response
to the Board’s Show Cause Order.
The Board’s authority to effectively manage its affairs,
including the authority to require parties to comply with Board briefing orders,
is necessary to “achieve orderly and
Considering that Santoro is proceeding in this appeal
without representation by counsel, this Board is willing to extend to him a
degree of latitude in complying with the Board’s procedural requirements. This
latitude, however, is not without bounds. The Board notified Santoro of his
obligation to file an opening brief and warned him that if he failed to do so,
the Board could dismiss his appeal. Nevertheless Santoro failed to file an
opening brief as ordered. The Board then gave Santoro the opportunity to explain
why he had failed to file his brief, and he filed no response.
The Board recognizes that dismissal of an appeal for failure
to file a conforming brief is a very serious sanction and one not to be taken
lightly. But even if the Board considered the lesser sanction of construing
Santoro’s petition for review as a brief and requiring the Respondent to reply
only to those arguments set forth in the petition, dismissal would be required.
It would serve no purpose to require the Respondent to respond to the points
raised in the petition for review because the petition fails to adduce any
argument in rebuttal of the ALJ’s conclusion that the Respondent does not fall
within SOX’s coverage because it does not issue securities registered under
section 12 and is not required by law to file reports under section 15(d) of the
Securities Exchange Act.
Accordingly, we DISMISS Santoro’s appeal because he
has failed to file a timely brief in support of his petition for review and has
failed to demonstrate any cause, much less good cause, for his failure to do so.
PAUL M. IGASAKI
Administrative Appeals Judge
Administrative Appeals Judge
1 18 U.S.C.A. §
1514A (Thomson West 2010).
2 The ALJ noted
that the Respondent made such filings only pursuant to a private indenture
agreement. R. D. & O. at 9.
3 The Secretary of
Labor has delegated her authority to issue final agency decisions under the SOX
to the Administrative Review Board. 29 C.F.R. § 1980.110(a) (2010). See
Secretary’s Order 1-2010 (Delegation of Authority and Responsibility to the
Administrative Review Board), 75 Fed. Reg. 3924 (Jan. 15, 2010).
4 The Board also
gave the Respondents the opportunity to reply to Santoro’s response to the
Order, and we suspended the briefing schedule.
5 Link v.
Wabash, 370 U.S. 626, 630-31 (1962).
6 See Crown v.
City of Chicago, ARB No. 11-015, ALJ No. 2010-SOX-060 (ARB July 15,
2011); Blodgett v. TVEC, ARB No. 03-043, ALJ No. 2003-CAA-7 (ARB Mar. 19,
2003) (dismissing complaint for failure to comply with briefing order);
cf. Fed. R. App. P. 31(c) (allowing dismissal as sanction for failure to
file a conforming brief); Fed R. App. P. 41(b) (permitting courts to dismiss a
complaint for failure to comply with court orders).
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS MAY BE BASED ON UNREFUTED, CREDIBLE TESTIMONY
In Ferguson v. New Prime, Inc., ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the ARB affirmed as supported by substantial evidence the ALJ’s award of $50,000 in compensatory damages for emotional distress based on the Complainant’s unrefuted and credible testimony, even though the testimony was not supported by any medical evidence.
In a decision issued on February 23, 2011, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA), has ordered a Memphis-based towing company to reinstate a commercial driver, William Beecher. OSHA found that the employer unlawfully fired Beecher because he refused to drive a transport recovery vehicle that did not comply with DOT regulations. In Beecher v. United Auto Recovery and Memphis Auto Auction, OSHA also ordered Beecher’s former employer to pay him back pay in excess of $38,000, emotional distress damages of $20,000, punitive damages of $40,000 and more than $10,000 in attorney fees.
On February 5, 2009, Beecher refused to drive a tow truck because the vehicle had a severe coolant leak which he had previously noted on numerous daily vehicle inspection reports submitted to the employer. An outside vendor for the employer had noted on a work order that the vehicle was “not driveable.” It appeared to Beecher that the truck also had a blown head gasket. OSHA found that if Beecher had driven the truck, he would have violated 49 C.F.R. § 396.7(a) which operations of a vehicle “in such a condition as to likely cause an accident or a breakdown of the vehicle.”
Although the employer claimed it offered Beecher an alternative vehicle to drive, a 4900 four-car hauler, Beecher did not have a license allow him to drive that larger vehicle. OSHA found that Beecher’s refusal to drive the larger vehicle was legally protected because he would have otherwise violated 49 C.F.R. § 383.23(a).
OSHA found that an award of damages for emotional distress was appropriate because Beecher’s discharge caused him to fall into “a deep depression” and that he and his family “have suffered mental anguish due to this financial stress.” OSHA also held that punitive damages were warranted because of United Auto Delivery and Recovery and Memphis Auto Auctions’ “reckless disregard for the law and complete indifference to [Beecher's] rights.”
Beecher brought his claim under the employee protection provisions of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, which prohibits retaliation against commercial drivers because they have filed safety-related complaints or because they have refused to drive in violation of a commercial vehicle safety regulations.
Beecher was represented by Paul O. Taylor of Truckers Justice Center, a law firm handling employment-related claims for commercial drivers based in Burnsville, MN. Mr. Taylor may be reached at 651-454-5800 begin_of_the_skype_highlighting 651-454-5800 end_of_the_skype_highlighting or visit www.truckersjusticecenter.com
In a decision issued on February 11, 2011, a Department of Labor Administrative Law Judge Patrick Rosenow has found that H. H. Williams Trucking, Inc. of Greeley, CO unlawfully retaliated against trucker J. R. Hildebrand because he refused to transport a shipment of meat in excess of the 80,000 pound legal limitation provided for under federal and Wyoming law.
In Hildebrand v. H. H. Williams Trucking, Inc., Case No. 2010-STA-56, Judge Rosenow held that Mr. Hildebrand’s refusal to drive with his loaded tractor-trailer set at 80,360 was protected under the employee protection provisions of the Surface Transportation Assistant Act (“STAA”).
The Judge noted that it was undisputed that, even though Hildebrand would drive on State Highway until he reached I-80, he would have still exceeded 80,000 pounds once he entered I-80 in Wyoming. Judge Rosenow stated as follows:
While Mr. Williams testimony may have stated a rational position and accurate assessment of industry practice, it does not reflect applicable law.
Although Williams Trucking claimed it fired Mr. Hildebrand for failing to communicate, Judge Rosenow found that Hildebrand was fired in retaliation for his legally-protected refusal to drive. The Judge found support for this in Williams Trucking’s position statement to OSHA in which it stated that drivers should take loads as long as they do not exceed 800 pounds overweight. It also stated to OSHA that if Hildebrand called dispatch, he would have been told to go with the 390 pounds of excess weight and that the employer would pay any fines.
Judge Rosenow ordered Williams Trucking to reinstate Mr. Hildebrand, pay him back pay, additional compensatory damages of $6,000 and punitive damages of $10,000.
Hildebrand’s claim was brought under the STAA provision prohibiting retaliation against drivers because they have filed safety-related complaints with the employer or government, or because they have refused to drive in violation of a commercial vehicle safety regulation.
MSHA announces results of July impact inspections
ARLINGTON, Va. — The U.S. Department of Labor’s Mine Safety and Health Administration today announced that federal inspectors issued 375 citations and orders during special impact inspections conducted at 10 coal mines and five metal/nonmetal mines last month. The coal mines were issued 232 citations and 24 orders, while the metal/nonmetal operations were issued 108 citations and 11 orders.
Special impact inspections, which began in force in April 2010 following the explosion at the Upper Big Branch Mine, involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns, including high numbers of violations or closure orders; indications of operator tactics, such as advance notification of inspections that prevent inspectors from observing violations; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries or illnesses; fatalities; and adverse conditions such as increased methane liberation, faulty roof conditions and inadequate ventilation.
As an example from last month’s impact inspections, on July 22, MSHA inspectors arrived during the second shift at Wilcoal Mining Inc.’s Tri-State One Mine located in Claiborne County, Tenn. The inspection party immediately seized and monitored communications at the mine to prevent advance notification. More than two-thirds of 32 citations and orders issued were designated as significant and substantial. The impact inspection was the sixth conducted at this mine.
MSHA issued eight unwarrantable failure closure orders for conditions that presented serious hazards in the event of a fire, explosion or other emergency that could prevent miners from safely exiting the mine. The operator was cited for failure to maintain a primary escapeway for safe travel due to the presence of lumber, other debris and water up to 10 inches in depth; inadequate pre-shift examinations; failure to conduct a proper electrical examination; use of a water pump without a fail-safe ground system in the primary escapeway; not providing the required number of self-contained self-rescuers at the section storage location as well as two-way communications for one of the mine’s refuge alternatives on the active section; and inadequate ventilation.
Twenty-four 104(a) citations were issued for hazardous conditions that, if left unchecked, could potentially cause or contribute to a roof fall, mine fire or explosion. These violations concerned a lack of emergency roof support supplies; improper roof bolt spacing; excessive coal accumulation; misaligned and unguarded conveyor belts, and a damaged conveyor belt roller; nonworking ventilation control doors; improperly maintained and nonpermissible electrical equipment; noncompliance with the approved emergency response plan; and nonfunctioning communication and tracking systems.
Tri-State One Mine was one of 13 operations to receive a letter from MSHA in November 2010 that placed it on notice of a potential pattern of violations of mandatory health or safety standards under Section 104(e) of the federal Mine Safety and Health Act of 1977.
As a second example from last month, MSHA issued 13 citations and orders during an impact inspection conducted on July 1 at Inman Energy’s Randolph Mine, located in Boone County, W.Va. The inspection party arrived at 4 a.m. and captured the phones prior to proceeding. The impact inspection was the second conducted this year at the mine.
Six unwarrantable failure closure orders were issued for accumulations of combustible materials on the working section from the feeder to the face, overhanging rock brows on the working section that were not adequately supported or otherwise controlled, failure to follow the mine’s approved ventilation plan, miners not being made aware of the designated responsible person on duty, and failure to conduct and record adequate pre-shift and on-shift examinations. Inspectors also cited a number of violations involving other hazardous conditions, including permanent ventilation controls that were not properly constructed or otherwise maintained, accumulation of water in a return air course, an unguarded high-voltage cable, improper storage of compressed oxygen cylinders and inadequate support of a kettle bottom in the mine roof.
“The closure order is still one of the most effective tools inspectors have to bring about compliance, even during impact inspections,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “We will not hesitate to use these and other enforcement tools to protect the nation’s miners.”
Since April 2010, MSHA has conducted 307 impact inspections, which have resulted in 5,526 citations, 518 orders and 19 safeguards.