One size fits all? Maybe when it comes to some of their products, but not when it comes to hazard assessments at Wal-Mart distribution centers, according to a new ruling.
The Occupational Safety and Health Review Commission (OSHRC) has ruled that Wal-Mart failed to comply with an OSHA regulation requiring a personal protective equipment (PPE) hazard assessment at its New Braunfels, TX, distribution center.
Wal-Mart argued an assessment it conducted at its Searcy, AR, distribution center was applicable to the Texas location because the centers were the same.
OSHA had issued four PPE citations to the retail giant. An OSHRC administrative law judge upheld two of the four violations, including the lack of a PPE hazard assessment. The judge also let the $1,700 fine stand.
Wal-Mart appealed to the whole commission which recently entered its decision.
The company claimed the assessment at its Arkansas location served as a “global” assessment for each of Wal-Mart’s distribution centers nationwide, including the one in Texas.
The OSHRC noted that, while there are no specific directions in the OSHA regulation about the method companies have to use to perform the PPE hazard assessment, there is language that indicates the assessment must take into account the conditions at each worksite:
- “hazard assessment … produces the information needed to select the appropriate PPE for the hazards present or likely to be present at particular workplaces”
- “the agency has determined that employers can adequately verify compliance of the final rule through a written certification which identifies the workplace evaluated.“
Wal-Mart argued that OSHA failed to make its case in this regard. The company’s Safety Director established that the “design and operations” of the two distribution centers are similar. The Safety Director also said their functions were identical.
However, the Safety Director also admitted he hadn’t been to the Texas center before the OSHA inspection. He hadn’t determined from personal evaluation that the conditions at the two centers were the same.
Wal-Mart also argued that the Searcy Center assessment was on the company’s intranet which was accessible to all of its distribution centers.
But the OSHRC said that didn’t mean the New Braunfels management had verified that conditions there matched the ones at Searcy.
The commission concluded that Wal-Mart hadn’t conducted a hazard assessment of the New Braunfels distribution center. That violation stood, but the OSHRC did throw out another PPE violation. However, the citation amount ($1,700) stayed the same.
One OSHRC member did write a dissent, saying the majority opinion unfairly extended the PPE hazard assessment requirement for companies.
Wal-Mart could now appeal this decision to a federal court.
The retail giant isn’t shy about contesting OSHA violations, no matter how small the fine is. For years, Wal-Mart challenged an OSHA General Duty Clause violation in connection with the trampling death of an employee at a Long Island, NY, store on the day after Thanksgiving. That case gained national attention, and there was speculation earlier this year that Wal-Mart finally decided to drop the case due mostly to negative publicity.
If that is the case, Wal-Mart just might take this sub-$2,000 case to a federal court because the general media have given little or no coverage to it. Money apparently isn’t an object. Wal-Mart spent large amounts of money on the trampling case before dropping it.
What do you think about OSHRC’s decision in this case? Could Wal-Mart have made its argument stronger through some simple actions such as documenting the similarities between the two distribution centers? Let us know in the comments.
(Secretary of Labor v. Wal-Mart Distribution Center, OSHRC No. 08-1292, 4/27/15)