A recent case in the 5th Circuit U.S. Court of Appeals revealed that appellate courts are interested in granting intervention to associations in OSHA cases and learning about industry practice and the impact of new interpretations upon safety practices. The case is Trinity Marine Nashville Inc. v. OSHRC and Secy. Of Labor (No. 00-60673, decided December 5, 2001).
Shipbuilders Council of America sought a friend-of-the-court appearance before the 5th Circuit to try to persuade that appellate court to reverse OSHA citations that had been upheld against Trinity. These outlawed the use of electric tape over worn or frayed electrical power cables and extension cords.
The company was cited for its use of electrical tape on insulated extension cords. Company practice, common in nearly all industries, held that when insulated extension cords experienced wear that exceeded superficial nicks and scratches, but were still salvageable, Trinity restored them to useful service by splicing or wrapping the frayed length with insulated tape covered by friction tape.
OSHA v. Industry Practice
Shipbuilders argued that OSHA's position prohibiting the repair of worn or frayed cables was contrary to more than 30 years of safe industry practice and contrary to no-violation inspections throughout the shipbuilding industry. The Shipbuilders document discussed that OSHA is a notice statute requiring OSHA to give employers advance notice whenever it changes enforcement standards by interpretation through citations.
Shipbuilders pointed out cases where other appellate courts struck down OSHA substantive changes in regulations when they stretched the meaning beyond the limited scope and application intended for those standards. They also argued that the industry has miles of these extension cords and electrical cords and OSHA's sudden disallowance of electrical-tape repairs was beyond the scope and intent of the standards as well as beyond OSHA's previous enforcement history.
The Standard
The standard cited states: "Worn or frayed electrical cords shall not be used." For years, OSHA has allowed electrical cords to be repaired and did not considered them as frayed or worn underneath the electrical or friction tape. Then OSHA decided that if the inspector unwrapped the electrical and friction tape and found the cord to be frayed or worn underneath the tape, then it was a citable offense because the cord was still being used in a frayed or worn manner, underneath the repair tape.
At the trial OSHA admitted that the repair was well done and probably restored the cord to the same safety factor as an original cord. Nevertheless, on appeal OSHA seemed to change its position and claim that repairs were not allowed, that the Secretary of Labor was the primary interpreter of the standard and that the court should simply defer to its new interpretation.
Shipbuilders' Day in Court
When the Shipbuilders Council Association pointed out the severe impact OSHA's new interpretation would have on industry, the 5th Circuit Court of Appeals granted the association an unusual oral-arguments appearance time slot. In its decision reversing the OSHA Review Commission and vacating all citations, the court referenced some of the association's arguments concerning industry practice being contrary to the new OSHA interpretation.
In addition, OSHA citations were reversed and vacated for an additional standard concerning wood-frame plug-in electrical temporary boxes used by Trinity. OSHA cited Trinity even though an inspection had vacated similar citations in 1989. OSHA argued that the previous withdrawal of citations was irrelevant and that it could change its mind without further notice to the employer. On this notice issue, the court was similarly strong in its decision when it declared: "Where a company has been informed by an OSHA inspector that its procedures or processes are safe and satisfactory, the company has a valid fair-notice complaint if cited for the same procedures in a later inspection."
This is an excellent quote to use when OSHA tries to recite a machine or activity that had previously been cited and where the agency withdrew the citations. It also is a reminder for employers to seek a "no violations" document from the federal or state OSHA inspector where a clean bill of health is found following an inspection. Those documents could become useful in protecting the company against future situations, although a no-violations finding is not a guarantee that the machine could not be cited in the future.
The real lesson from the Trinity case is that courts today are becoming very receptive to association evidence and arguments concerning industry practice and the impact of a regulation or change in regulation.