Second ‘Enterprise-Wide' Action Launched, As Secretary Cites New England Food Chain

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By David Schwartz  

A complaint has been filed with the Occupational Safety and Health Review Commission seeking “enterprise-wide” relief against a New England-based supermarket chain based on allegations of safety violations at 63 stores in Massachusetts and New Hampshire, the Department of Labor announced Jan. 18 (Secretary of Labor v. DeMoulas Super Markets Inc., OSHRC, Nos. 11-2870 and 2871, 12/22/11) (complaint).

This is only the second time DOL has filed an enterprise-wide complaint with the commission. The department brought its first such complaint against the U.S. Postal Service for electrical violations at its 350 processing and distribution centers in July 2010. That case is ongoing (40 OSHR 574, 7/8/10).

According to the latest complaint, Occupational Safety and Health Administration compliance officers inspected two stores owned by DeMoulas, doing business as Market Basket, in the New Hampshire towns of Rindge and Concord in 2011.

Following the inspections, OSHA cited DeMoulas with numerous willful, repeat, and serious violations, for, among other things, failing to call emergency medical services after an employee fell more than 11 feet and landed on a concrete floor, failing to install a guardrail on a loft where employees were working, failing to develop a lockout/tagout procedure for a meat saw, failing to install toe boards and therefore exposing employees to overhead struck-by hazards, and failing to train employees who were operating powered industrial trucks (41 OSHR 897, 10/20/11).

Proposed Penalties Total $589,200

The department sought penalties of $589,200, of which $381,700 was for violations at the Rindge store and $207,500 for problems at the Concord store. DeMoulas contested both citations, which were then sent to the review commission.

According to the department's complaint, OSHA gathered information that it said led it to believe that employees at the more than 60 other grocery stores owned by DeMoulas were exposed to similar violations. Therefore, it filed its complaint for enterprise-wide relief.

James F. Laboe, with the law firm of Orr & Reno in Concord, N.H., who is representing DeMoulas, told Bloomberg BNA Jan. 24 that if the case gets that far, DeMoulas would challenge the department's right to bring such a complaint.

Laboe said that the Occupational Safety and Health Act restricts the commission from ruling on anything but the citations for the two stores that the employer has challenged. The secretary, he said, is “seeking something along the lines of a cease-and-desist order, but the OSH Act actually prohibits that.”

Laboe added, “I'm not sure we'll get to a position to test enterprise-wide relief because we're working really hard to try to settle this.”

Enterprise-Wide Measures

In its complaint, the department added that since 2007, or before, DeMoulas had known that it needed “to implement enterprise-wide measures to protect open-sided floors, platforms, and runways.” This knowledge, the department explained, came from a serious fall accident at a Market Basket store in Billerica, Mass., in 2007 after which the store's head safety liaison allegedly notified store vice presidents that there were similar problems at other stores.

The complaint also alleges that DeMoulas has failed to assess its stores to determine whether employees should use personal protective equipment, has not selected or required that employees wear proper hand protection when exposed to laceration hazards, and failed to comply with an informal 2006 settlement agreement to assess job hazards.

The department concluded by requesting that the commission affirm the citations at the two stores and also order that the company abate violations at all stores, plus impose any additional penalties that seem appropriate following a trial.

The case has been assigned to Carol A. Baumerich, the commission's newest administrative law judge, who granted the department's motion Jan. 17 to consolidate the two cases derived from the two inspections.

Baumerich is also scheduled to preside at a settlement conference between the parties March 20 and 21.

“I think both sides are guardedly optimistic that we'll reach a resolution,” said DeMoulas's attorney, Laboe.

For More Information

The secretary of labor's complaint, which seeks enterprise-wide relief, is available at http://op.bna.com/env.nsf/r?Open=jstn-8qtusa.

The citations and notifications of penalty for the two New Hampshire stores are available at http://op.bna.com/env.nsf/r?Open=jstn-8qtuuy (Rindge) and http://op.bna.com/env.nsf/r?Open=jstn-8qtuuf (Concord).