THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR, :
v. : OSHRC DOCKET NO. 08-1547
U.S. POSTAL SERVICE (Seattle, WA), :
Appearances: Evan H. Nordby, Esquire Stephen C. Yohay, Esquire
U.S. Department of Labor Ogletree Deakins
Office of the Solicitor Leigh Bonds, Equire
Seattle, Washington U.S. Postal Service
For the Complainant. For the Respondent.
Before: Chief Judge Irving Sommer
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted an inspection of a facility of the U.S. Postal Service (“USPS”) in Seattle, Washington, from March 19, 2008 to May 23, 2008. As a result, on September 10, 2008, OSHA issued a citation alleging “repeat” violations of 29 C.F.R. 1904.29(b)(2) and (b)(3) for failing to record two work-related illnesses as required. Respondent USPS contested the citation. The hearing in this matter was held in Seattle, Washington, on November 18 and19, 2009. Both parties have filed post-hearing briefs.
The cited facility is USPS’s Processing and Distribution Center (“P&DC”) in Seattle, Washington. The P&DC is the main USPS facility in the Seattle area for processing mail. It is a large facility with highly automated processing equipment. The facility operates 24 hours a day, with three shifts, and has about 1,200 employees. The non-supervisory workers consist of “regular” and “casual” employees. Regular employees are represented by postal unions, and their assignments are subject to collective bargaining agreements. Casual employees are not represented by unions, and their work assignments vary according to factors such as mail volume, unscheduled absences, and limits imposed by the union agreements. Union agreements also limit the percentage of casual workers at the P&DC. (Tr. 174-77,192-95, 202, 205-06).
“N.B.” began working at the P&DC as a “Christmas casual” on November 7, 2007. She worked on the night shift, which started between 10 and 11 p.m. and ended between 6:30 and 7:30 a.m., and she generally worked about 35 hours per week. At first she worked on the bar code machine, where several supervisors told her she was doing a good job. In late December 2007, N.B. went to see Dr. Zachariah at the Community Health Center in Federal Way, Washington, for what she thought was the flu. Dr. Zachariah, however, said she did not have the flu but a dust allergy and gave her a prescription for an allergy medication and an inhaler. N.B. filled the prescription at a pharmacy in Federal Way. Her only previous allergy diagnosis had been to shrimp. (Tr. 89-94).
After the Christmas season, the P&DC cut back the number of casuals in N.B.’s work area but kept N.B. on. She started working at other mail sorting machines in January 2008, such as the DIOS and DBCS machines. N.B. requested a mask to work on the DBCS machine, due to the dust that resulted from the mail sliding down the feeder. Cliff Wind, the casuals’ supervisor, provided N.B. the mask, which covered her mouth and nose. (Tr. 94-96, 120).
On January 17, at 11 p.m., N.B. was assigned to be trained on the Flat Sorting Machine (“FSM”). She stood by the machine as a co-worker showed her how to load and feed the FSM. As the feeding process took place, N.B.’s eyes began burning, itching and watering. Her face felt hot, like it was burning, and she also smelled a burning “rubbery” smell. These symptoms began within 10 minutes of beginning the feeding of the FSM. N.B. finished her training between 3 and 3:30 a.m. During her training, she took three or four quick restroom breaks to wash her face, which helped the symptoms. She told her co-worker about the symptoms. (Tr. 96-101, 105).
On January 20, when N.B. reported for work, Rosanna Cortez, a supervisor, assigned her to work on the FSM. While she was feeling fine when she got to work, N.B. began to have the same symptoms as before within 10 minutes of beginning to feed the FSM. As she continued to work on the machine, she also began experiencing trouble breathing, as if pressure were being put on her chest. She told her co-workers on the FSM of her symptoms, and one suggested she tell Richard Hitt, the FSM supervisor. Since she could not leave the machine in the middle of processing a “zone,” she continued to work but took short restroom breaks to wash her face in between zones. After finishing the last zone, N.B. encountered Mr. Hitt as she was leaving the restroom. Mr. Hitt told her she did not “look good,” and she told him about her symptoms from working on the FSM. Mr. Hitt took her to see Ms. Cortez. After discussing the matter, the two supervisors at first told her to take her lunch break. Ms. Cortez then told her that she had no more work for her that shift and that she should go home. N.B. waited until she felt well enough to drive and then went home and used the medications Dr. Zachariah had prescribed for her in December. The medications alleviated her symptoms, and since she did not want to worry her husband, who had recently had a heart attack, she decided not to call the doctor. (Tr. 102-09).
N.B. returned to work as scheduled on January 24. She asked Ms. Cortez if she needed to get a doctor’s note for having left early on January 21. Ms. Cortez told her that since she was feeling fine upon her return, she did not need to get a doctor’s note or other documentation. N.B. discussed with supervisors on several more occasions the symptoms she had had while working on the FSM on January 20 and 21. On February 7, she told Mr. Wind about the symptoms and asked to be reassigned from the FSM for her February 10 shift. She was nonetheless assigned to the FSM on February 10, and she asked Ms. Cortez to reassign her, citing her illness. Ms. Cortez told her they had no one else to work there and that N.B. had to work on the FSM. Another casual traded places with N.B. on February 10 before the feeding of the FSM began. On February 15, another supervisor assigned N.B. to the FSM. After N.B. convinced him that she should not work there, again citing her illness, Christine Batara, a different supervisor, questioned her about giving the supervisors a “hard time” about working on the FSM. N.B. explained that, although she thought that the FSM was an easy place to work, it made her ill. Ms. Batara indicated to N.B. that she could be terminated and referred her to Mr. Wind, who told her that she had to either work on the FSM on February 17 and 18 or call in sick. Mr. Wind ultimately allowed N.B. to exchange assignments with another employee on February 17. During her shift on February 17, N.B. asked a technician to get her a dust sample from the FSM area so that she could try to find out what was making her sick. (Tr. 109-19).
N.B. did not work on February 18. On February 19, at the end of her shift, Mr. Wind told N.B. that she had to go to her doctor and get documentation stating she could work everywhere in the P&DC or she would be fired. That same day, N.B. went to her regular doctor, Joy Ziemann, in Federal Way. N.B. described her symptoms to Dr. Ziemann, including her breathing difficulty, when she worked on feeding the FSM. She also told her doctor she had taken the allergy medications Dr. Zachariah had prescribed. At the end of the visit, Dr. Ziemann gave N.B. a note that gave a diagnosis of “Allergic Reaction.” The note also stated that N.B. “should not work the FSM (flat sort machine) due to allergic reaction.” Dr. Ziemann’s records from the visit state the symptoms N.B. described, the doctor’s medical conclusions, and the fact that Dr. Ziemann refilled the prescription for loratadine, the allergy medication that Dr. Zachariah had prescribed. Dr. Ziemann also referred N.B. to Franciscan Occupational Medicine for further evaluation. (Tr. 119-29; C-4A, C-4B).
N.B. visited Dr. Paul Darby of Franciscan Occupational Medicine on February 22, to begin allergy testing. Dr. Darby took N.B.’s medical history, including the symptoms she had had while working at the FSM. At the conclusion of the visit, he gave N.B. a note setting out a diagnosis of “Allergic Reaction” and a “Key Objective Finding” of “Allergic reaction, bronchospasm to machine dust from [FSM].” Under “Other Restrictions,”the note stated: “No work with or in the area of [FSM].” The note also stated that N.B. was not otherwise restricted and that allergy testing was pending. N.B. took the notes from Drs. Darby and Ziemann to the P&DC on the evening of February 22. She presented the notes to Ms. Batara and Mr. Wind, and Ms. Batara initialed the notes as being received. N.B. was not permitted to return to work, however, since the doctors’ notes did not say that she could work on the FSM. N.B. then filled out the paperwork for, and filed, a Federal Worker Compensation claim. She submitted two forms, as the first form she filed was not the proper form. N.B. went back to Dr. Darby three times for follow-up allergy testing, but she was never diagnosed with an allergy to a specific substance. This was because Dr. Darby’s testing was basic in-office testing, and while he was going to refer her to another doctor for further allergy testing, those tests would have cost from $1,000.00 to $5,000.00. N.B. was not able to pursue that testing because she could not afford to pay for it out of her own pocket. (Tr. 128-45, 155-57; C-5A, C-5B, C-7, C-8).
OSHA initiated the inspection in this case after receiving complaints from N.B. and another employee, “A.R.,” about the air quality in the areas where they worked in the P&DC. The OSHA industrial hygienist (“IH”) who conducted the inspection received medical information from the two employees indicating their doctors believed the employees were allergic to the dust in their work areas. N.B. had been diagnosed as having had an allergic reaction from working with the FSM, and, on February 22, she provided the P&DC with doctors’ notes containing this information and stating she should not work with or in the area of the FSM. A.R., the second employee, had been diagnosed as having allergic rhinitis caused by the dust in her work environment. On March 6, A.R. had submitted a Form WH-380 (completed by her doctor, Lawrence Klassen) with this information to the P&DC to obtain leave protected under the Family and Medical Leave Act (“FMLA”). The form also indicated that the condition had caused A.R. to miss work and required leave as needed and treatment with prescription medications. (Tr. 20, 24-30, 36-41; C-4B, C-5B, C-6B, C-11).
Based on her conversations with the employees and the medical information she received, the IH concluded that the incidents relating to N.B. and A.R. were required to be recorded on the P&DC’s illness/injury logs and incident reports. When she requested the P&DC’s Form 300 illness/injury logs and Form 301 incident reports, however, she discovered that neither of the incidents had been recorded. During her inspection, the IH found no other discrepancies in the P&DC’s illness and injury record-keeping. (Tr. 20-23, 44-45, 66-67).
Admissibility of Exhibits C-11 and C-12
At the hearing, the Secretary moved to have Exhibits C-11 and C-12 admitted. USPS objected, and I denied the motion. (Tr. 285-96). After the hearing, and upon further review of the record in this matter, I concluded C-11 and C-12 should have been admitted. On February 2, 2010, I issued an order admitting the documents and giving the parties an opportunity to respond. Neither has done so, but, for completeness of record, the reasons for admitting the documents follow.
First, C-11 and C-12 clearly relate to A.R., the second employee involved in this case. C-11 and C-12 are both letters to A.R., on USPS letterhead, that address A.R.’s request for FMLA-protected leave. C-11, dated March 6, states that USPS’s Attendance Support Office had received the Form WH-380 her doctor had completed. It also states that the form is incomplete and explains what additional information is needed. C-11 is signed by “Fred Santiaguel, FMLA Coordinator Tour 3.” Below that signature is a “Note to Supervisor” that states: “Please have the employee sign and date below verifying that s/he received his/her copy of this letter and return the signed copy to me.” A.R.’s signature appears below that note, as does the date March 8. C-12, dated April 8, is from USPS’s Human Resources, Seattle District Headquarters. About halfway down the page, C-12 provides A.R.’s “Case ID” number, describes her condition as a “Serious Health” condition, and categorizes it as a “Chronic Condition – Allergy.” It also states: “Approved Date: 04/04/08.” C-12 additionally describes the facility’s forthcoming transition to an interactive voice response (“IVR”) telephone system for employees to call when reporting unscheduled absences. C-12 is also signed by “Fred Santiaguel, FMLA Coordinator – T-3.”
Second, USPS concedes A.R. was an employee of the Postal Service and that she submitted an FMLA leave form to USPS. (Tr. 297). Further, Kenn Messenger, the former senior manager for distribution operations at the P&DC, testified that he had not seen C-11 and C-12 before but had seen similar letters, that he knew the process by which application for leave under the FMLA was made, and that he had received FMLA training as a manager with USPS. He was also familiar with USPS’s transition to the IVR system, as described in C-12. (Tr. 278-88). Finally, AD Flack, the OSHA IH who conducted the inspection, testified that C-11 was one of the documents that A.R. had provided her during the inspection. (Tr. 40-41). I agree with the Secretary that USPS cannot seriously object based on foundation to admitting C-11 and C-12 into evidence. As the Secretary has pointed out, the documents are from USPS’s own records and are self-authenticating. (Tr. 295-96). For all of these reasons, C-11 and C-12 were properly admitted into the record.
Admissibility of Exhibits C-4, C-5 and C-6
Exhibits C-4, C-5 and C-6 are the medical records relating to the two employees involved in this matter, N.B. and A.R. As USPS notes, I denied the Secretary’s Motion in Limine to admit the documents prior to the hearing. As USPS also notes, I expressed skepticism at the hearing about the reliability of the information in C-5B, and the Secretary’s motion to admit that document was at first denied. (Tr. 24-36). Later, upon further consideration, C-4A-B, C-5A-B and C-6A-B were all admitted conditionally, subject to my determining their admissibility, relevance and reliability. (Tr. 72-86, 302-03). After reviewing the entire record and the parties’ arguments in regard to these documents, I find that the documents are admissible, relevant and reliable.
Federal Rule of Evidence (“FRE”) 803 sets out exceptions to the hearsay rule, even though the declarant is available as a witness. FRE 803(4) provides the following exception:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past, or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonable pertinent to diagnosis or treatment.
As the Secretary asserts, the statements N.B. and A.R. made to their doctors in regard to the symptoms they had experienced while working at the P&DC facility were in furtherance of their respective diagnoses and treatments and are thus admissible for the truth of the matters asserted therein under FRE 803(4). See U.S. v. Yazzie, 59 F.3d 807, 812 (9th Cir. 1995). Patient-declarants do not have to be describing a current condition, as long as the court is satisfied the statements were made to the doctor to be relied upon by the doctor in furtherance of medical diagnosis and treatment. Id. at 813. See also U.S. v. Nick, 604 F.2d 1199, 1201-02 (9th Cir. 1979); O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1087-89 (2d Cir. 1978). The out-of-court statements can also relate to causation of the injury. Yazzie, 59 F.3d at 813; Nick, 604 F.2d at 1201-02. I agree with the Secretary that the statements N.B. and A.R. made to their doctors as to the symptoms they had had while working at the P&DC, as reflected in the documents in issue, are admissible under FRE 803(4).
I also agree with the Secretary that the statements in the documents that reflect the doctors’ medical findings as to N.B. and A.R. are admissible. FRE 803(6), another exception to the hearsay rule, even though the declarant is available as a witness, provides for the admission of “Records of Regularly Conducted Activity” as long as the records are properly certified by the custodian of the records. C-4A, C-5A and C-6A are copies of the doctors’ records in this matter, and they have been properly certified. As the Secretary notes, the Ninth Circuit has held that medical records are “classic” business records admissible under FRE 803(6). U.S. v. Hall, 419 F.3d 980, 987 (9th Cir. 2005).
Having found the documents admissible, I turn now to their relevance and reliability. The documents are clearly relevant, as they support the Secretary’s assertion that N.B. and A.R. were made ill by exposure to dust in their respective work areas and that USPS was required to record their illnesses under the cited standards. I also find that the documents are reliable. In this regard, I note that N.B.’s testimony, which is summarized above in the background section of this decision, was consistent with what she told Drs. Ziemann and Darby, as reflected in C-4A and C-5A. And, her testimony was not refuted by other witnesses who testified, as discussed below. I observed the demeanor of N.B. as she testified, including her facial expressions and body language, and I found her to be a credible and convincing witness. Her testimony is credited, and it supports a conclusion that the statements in C-4A and C-5A are reliable. A.R. did not testify. C-11 and C-12, however, show A.R. requested FMLA-protected leave by submitting a Form WH-380 her doctor completed. They also show that while A.R.’s request was initially found to be incomplete due to a lack of certain information, it was approved on April 8. C-12 describes A.R.’s illness as a “Serious Health” condition and categorizes it as a “Chronic Condition – Allergy.” C-11 and C-12, USPS’s own records, support a conclusion that what A.R. told her doctor, as in C-6A, was reliable. Finally, there is no reason to question the medical findings of the doctors in this case, as set out in their records.
I have considered USPS’s arguments that the statements in C-4A-B, C-5A-B and C-6A-B are inadmissible and its further arguments indicating that the claims of N.B. and A.R. are suspect and unreliable. See, e.g., R. Brief, pp. 16-18, 21-29. These arguments are rejected, and, as noted above, C-4A-B, C-5A-B and C-6A are admitted and found to be relevant and reliable.
Whether USPS Violated the Cited Standards
The citation alleges that USPS violated 29 C.F.R. 1904.29(b)(2) and (b)(3) when it did not record the incidents described above relating to N.B. and A.R. The cited standards require that OSHA 300 Log entries and 301 Incident Reports be completed “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred.” A “recordable injury or illness” is a work-related injury or illness that results in “restricted work” and/or “medical treatment beyond first aid,” among other possibilities. See 29 C.F.R. 1904.7(b)(1).
To prove a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies; (2) the terms of the standard were not met; (3) employees had access to or were exposed to the cited conditions; and (4) the employer knew or could have known of the cited conditions with the exercise of reasonable diligence. See, e.g., Kulka Constr. Mgmt. Corp., 15 BNA OSHC 1870, 1873 (No. 88-1167, 1992). There is no dispute that USPS did not record the incidents relating to N.B. and A.R. There is also no dispute that USPS received the notes described above from N.B.’s doctors, that is, C-4B and C-5B, pp. 11-12, on February 22. Further, based on my findings supra, USPS received the Form WH-380, completed by A.R.’s doctor, on March 6, and USPS approved A.R.’s request for FMLA leave on April 8. See C-11, C-12. USPS contends, however, that the Secretary has not proved the incidents were work-related illnesses required to be recorded. It also asserts that the Secretary has not proved the knowledge element.
As to whether the incidents were work-related illnesses, as the Secretary notes, an injury or illness is “work-related” if “events or exposures at work either caused or contributed to the problem.” Home Depot #6512, 22 BNA OSHC 1863, 1865 (No. 07-0359, 2009) (citing Occupational Injury and Illness Recording and Reporting Requirements: Final Rule, 66 Fed. Reg. 5916, 5917 (Jan. 19, 2001)) (“Final Rule”). “[P]ure speculation that ‘some’ event in the workplace may have caused or contributed to an injury or illness” is not enough. Home Depot at 1865. But, if the work itself is “a tangible, discernible causal factor,” an injury or illness is work-related. Final Rule at 5929.
As the Secretary also notes, the standard does not require a final diagnosis of a particular illness or exposure to a specific substance, because the record-keeping system is designed to gather information about what may be latent trends in illnesses and injuries within the workforce. As OSHA stated in the preamble to the Final Rule:
It is evident from the statute that Congress wanted employers to keep accurate records of non-minor injuries and illnesses, in part, to serve as a basis for research on the causes and prevention of industrial accidents and diseases. This research is needed, among other reasons, to further examine and understand those occupational factors implicated as contributory causes in injuries and diseases. To serve this purpose, the records should include cases in which there is a tangible connection between work and an injury or illness, even if the causal effect cannot be precisely quantified, or weighed against non-occupational factors. (Emphasis added).
Final Rule at 5930. The Secretary points out that the preamble to the Final Rule cites approvingly to the Commission’s approach in General Motors Corp., 8 BNA OSHC 2036, 2039-40 (No. 76-5033, 1980). “The issue in General Motors was whether the employer was required to record respiratory ailments of three employees, based on notations from the employees’ treating physicians that their ailments were probably related to exposure to a chemical substance at work.” Final Rule at 5930. The Commission held the illnesses recordable. General Motors at 2040. S. Brief, pp. 15-16.
USPS agrees with the Secretary that the “tangible, discernable causal factor” is the test to show that an injury or illness is work-related. It urges, however, that a settlement between OSHA and NAM, the National Association of Manufacturers, reached after NAM filed a challenge to the Final Rule, puts the burden on the Secretary to show an injury or illness is work-related, as follows:
Section 1904.5(b)(3) states that if it is not obvious whether the precipitating event or exposure occurred in the work environment or elsewhere, the employer “must evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” This means that the employer must make a determination whether it is more likely than not that work events or exposures were a cause of the injury or illness, or a significant aggravation to a pre-existing condition. If the employer decides the case is not work-related, and OSHA subsequently issues a citation for failure to record, the Government would have the burden of proving that the injury or illness was work-related. (Emphasis added).
R. Brief, pp. 12-14.
Based on the foregoing, A.R.’s illness was work-related and recordable. The Form WH-380 that her doctor completed describes A.R.’s medical condition as “allergic rhinitis and conjunctivitis with severe eye & nose irritation/nosebleed headaches caused by her work environment exclusively. Primarily dust as well as environmental toxins.” It states that the condition began “12/07 (concurrent with assignment to present work station).” It also states A.R.’s “episodes of debilitating symptoms occur several times a week requiring to miss days to recover or leave early from work.” Finally, the form states that A.R. will require ongoing treatment and absence from work for treatment “as needed several times a yr.” The form describes the required regimen of continued treatment as “Rx meds.” C-12 establishes that USPS ultimately accepted the information submitted by A.R.’s doctor, in that it approved her request for FMLA leave on April 8. C-12 also establishes that USPS itself classified A.R.’s illness as a serious and chronic health condition. I find that the Form WH-380 and C-12 demonstrate that A.R.’s condition was work-related and recordable.
I also find that N.B.’s illness was work-related and recordable. C-4B, the note from Dr. Ziemann, gives N.B.’s diagnosis as “Allergic Reaction.” It also states that “she should not work the FSM (flat sort machine) due to allergic reaction.” C-5B, pp. 11-12, the note from Dr. Darby, gives N.B.’s diagnosis as “Allergic Reaction.” It states, under “Key Objective Finding(s),” “Allergic reaction, bronchospasm to machine dust from Flat Sorting Machine.” It also states, under “Other Restrictions/Instructions,” “No work with or in the area of Flat Sorting Machine.” These two documents, in my view, show that N.B.’s illness was work-related. They also show that the illness was recordable because N.B. was restricted in her work duties.
USPS points to certain testimony in support of its claim that N.B.’s illness was not work-related and recordable. For example, Mr. Hitt, the FSM supervisor, testified that as he recalled, N.B. had told him only that she was unable to continue working on the FSM. He did not recall her describing any symptoms or being in any distress or short of breath. (Tr. 164-66). On cross-examination, however, Mr. Hitt agreed that in a phone interview with an OSHA official, he stated that N.B. had told him the dust was excessive. He further agreed that he had written and signed C-10, a “Memorandum to Record” dated April 11. (Tr. 169-72). C-10 states, in pertinent part, as follows:
On 21 January 2008, I had employee [N.B.], from Automation, on my AFSM 100s for training. At that time, she approached me and informed me she was having difficulty working on the AFSMs. She told me her eyes were affecting her.
Rosanna Cortez, a distribution operations supervisor at the P&DC, testified she recalled Mr. Hitt bringing N.B. to her and stating that N.B. could not work at the FSM. When Ms. Cortez asked why, N.B. said that “she was tired, it’s heavy there, and it’s dusty.” As Ms. Cortez recalled, N.B. said nothing about having had an allergic reaction to the FSM. Also, N.B.’s eyes did not appear to be red, and she did not seem to be short of breath or to have any problems with her face. (Tr. 267-70). On cross-examination, Ms. Cortez agreed she had written an e-mail on February 8 to other supervisors at the P&DC that stated: “[N.B.] asked NOT TO WORK on the AFSM due to dust problems; can we trade somebody to work for her Sunday night?” Ms. Cortez also agreed she had told an OSHA official that N.B. had had a “pretty good job performance.” (Tr. 272-77).
Pam Cook, currently a senior manager at the P&DC, was a manager of distribution operations at the P&DC in February 2008. She testified about the automated equipment at the P&DC and the fact that extensive maintenance, including vacuuming, is done of the equipment to ensure proper operation and that the electric eyes are not obscured by dust. She said that, in her opinion, an FSM does not give off enough dust to collect in a bag; to do so, one would need to get the dust out of the vacuum bag a maintenance employee had filled upon vacuuming the inside of an FSM. (Tr. 173-78, 187-92).
Ms. Cook further testified that she first became aware of an employee not being able to work on the FSM equipment in a staff meeting in which Mr. Wind reported it. She told Mr. Wind that, per standard procedure, if the employee could not perform the full functions of her job, she would need to provide medical documentation stating what she could or could not do. Ms. Cook next heard about the situation when Ms. Batara called her on February 22 about the medical documentation that N.B. had provided. After Ms. Batara read her the doctors’ notes, Ms. Cook spoke to N.B. on the phone and told her the notes did not give her a medical rationale that allowed her to make a decision about whether work was available for her. She also told N.B. that she would need further documentation that would explain in detail the medical rationale for N.B. not being able to work on the FSM. Ms. Cook noted that it was not her job to decide whether N.B. had reported a condition that was recordable on OSHA forms; that was up to the safety office. (Tr. 196-203).
On cross-examination, Ms. Cook stated that the only documents she had seen relating to N.B. were the doctors’ notes. She agreed the note from Dr. Darby stated, under “Other Restrictions,” “No work with or in the area of flat sorting machine.” She also agreed that it stated: “Allergic reaction, bronchospasm to machine dust from flat sorting machine.” See C-5B, p. 12. Despite these statements, she wrote in a memo concerning N.B.: “Management is unaware of any exposure to take precautions for.” In another memo, she wrote that: “It is a fact that [N.B.] had some allergic reaction (January 21st) from ‘something.’” Ms. Cook repeated that Dr. Darby’s note did not provide a medical rationale as to why N.B. could not work on the FSM. She stated that N.B. was not allowed to return to work because she (N.B.) did not clarify her medical restrictions. She further stated that it was not her role to question anything in the doctors’ notes; rather, she had to determine if there was anywhere in the building she could place this particular employee. Ms. Cook agreed she had not referred N.B. to another doctor for another medical opinion. (Tr. 222-23, 235-62). When asked if she was aware of any non-work-related exposure that could have caused N.B.’s condition, she stated:
I don’t have any knowledge that it even occurred personally. It’s all – this is all after the fact hearsay to me. So, no I don’t have any facts that any of it happened. I don’t have any knowledge that anything occurred, or whether any of it’s true or untrue.
I disagree the foregoing supports USPS’s position. While Mr. Hitt and Ms. Cortez indicated on direct that they did not recall N.B. being in any distress or reporting any symptoms to them, their testimony on cross-examination in essence contradicts their testimony on direct and supports the testimony of N.B. And, Ms. Cook’s testimony about the extensive maintenance the P&DC equipment undergoes, including the FSM, is no basis for concluding that the FSM does not emit dust that may trigger an allergic reaction in some individuals, in light of contrary evidence in the record. Further, while Ms. Cook testified as to her belief that N.B.’s doctors’ notes did not provide the “medical rationale” she needed, that testimony does not establish that N.B.’s condition was not work-related and recordable. In my view, the doctors’ notes, and especially the one from Dr. Darby, provided USPS with a clear medical reason for the likely cause of N.B.’s illness, that is, dust from the FSM. It also provided a clear restriction to prevent a recurrence of her symptoms: “No work with or in the area of Flat Sorting Machine.” The testimony of Ms. Cook shows that she performed no actual “evaluation” of the cause of N.B.’s illness, as set out in the OSHA/NAM settlement, which USPS has cited. See page 11, supra. Her testimony also shows that she did not direct N.B. to get another medical opinion. I find, therefore, that the Secretary has established that N.B.’s illness was work-related and recordable and that USPS has not rebutted that finding.
A final argument of USPS is that N.B.’s illness was not recordable because it did not meet the definition of “restricted work.” R. Brief, pp. 15, 22. Restricted work includes situations where, as a result of work-related illness or injury, a physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of his or her job. See 29 C.F.R. 1904.7(b)(4)(i). An employee’s “routine functions” are those work activities the employee regularly performs at least once a week. See 29 C.F.R. 1904.7(b)(4)(ii).
USPS asserts that N.B.’s work on the FSM did not meet the above test because it was not “routine.” It points out she was a casual employee with no routine assignments and that she worked only intermittently on the FSM. R. Brief, p. 22. The Secretary notes, however, that USPS’s own witnesses confirmed that working at the FSM was a routine duty of casual employees. Ms. Cook testified casual employees are hired and must be available to work throughout the P&DC as needed. (Tr. 194-96, 205-06). Mr. Hitt testified that, as the FSM supervisor, he had casuals working for him at least weekly. (Tr. 168). And, N.B. testified that USPS tried to assign her to the FSM on multiple occasions over two weeks in February 2008 and that she was terminated as she could not work on the FSM. (Tr. 107-20, 135-37). S. Brief, p. 20. In view of the record, I find that N.B.’s work on the FSM met the definition of “routine functions” and resulted in “restricted work” as set out in the standard.
Based on the foregoing, the Secretary has met the first three elements of her burden of proof. As to the fourth element, that is, knowledge, the Secretary must show that USPS either knew, or could have known with the exercise of reasonable diligence, that it was required to record the incidents relating to N.B. and A.R. As to N.B., C-4B and C-5B, pp. 11-12, are the doctors’ notes N.B. presented to Ms. Batara and Mr. Wind on February 22. As found above, those notes were sufficient to inform USPS that N.B.’s illness was recordable. In particular, the notes stated that she had had an allergic reaction to the dust from her work on the FSM and that she should not work on the FSM. Ms. Batara and Mr. Wind were both supervisors of N.B. (Tr. 91, 131-35, 197-98, 200). Further, Kenn Messenger testified that employees report work-related illnesses and injuries to their supervisors. (Tr. 282). And, Pam Cook testified that it is up to the P&DC’s safety office to decide if an incident is recordable. (Tr. 203). It is reasonable to infer from this testimony that an employee’s supervisor, upon receiving information like the notes N.B. presented, is responsible for providing the information to the safety office. The safety office then determines if the incident is recordable. N.B.’s supervisors received her doctors’ notes on February 22. The supervisors thus should have provided the notes to the safety office for proper recording. Because two of N.B.’s supervisors were aware of her illness due to the doctors’ notes, their knowledge is imputable to USPS. USPS has admitted that it did not record N.B.’s illness. It was, therefore, in violation of the cited standards as to N.B.’s illness.
As to A.R., I find that the Form WH-380 that A.R.’s doctor completed, so that she could apply for FMLA leave, provided the P&DC with clear notice that A.R. had a work-related illness that was required to be recorded. Further, C-11 and C-12, the letters from Mr. Santiaguel about her application, establish that while her FMLA claim was initially found to be incomplete, it was approved on April 8. C-12 refers to N.B.’s condition as a “Serious Health” condition and categorizes it as a “Chronic Condition – Allergy.” C-11 indicates A.R.’s supervisor saw C-11. At the bottom of C-11, there is a “Note to Supervisor” that asks the supervisor to have the employee sign and date the letter. A.R.’s signature appears below the “Note” along with the date of March 8. It is thus reasonable to infer that A.R.’s supervisor was aware of A.R.’s FMLA claim. This inference is supported by Mr. Messenger’s testimony indicating that the employee lets her supervisor know she will be requesting FMLA leave, after which the employee submits the Form WH-380. His testimony also indicates the form may be given to the supervisor, who routes it to the FMLA coordinator. The FMLA coordinator decides whether to approve the application and, if it is approved, informs the supervisor who administers the employee’s leave of that fact. It is also reasonable to infer that A.R.’s supervisor knew of her illness, in that A.R., according to the WH-380, had missed work due to her illness. The evidence, therefore, supports a conclusion that A.R.’s supervisor knew of her condition and should have reported it to the safety office. The supervisor’s knowledge is imputable to USPS.
I also agree with the Secretary that Mr. Santiaguel, the FMLA coordinator who approved A.R.’s application, was a supervisor for knowledge purposes in this case. Mr. Messenger testified that FMLA coordinators review and decide FMLA claims. He also testified that while FMLA coordinators do not actually supervise anyone’s work, they are not union members and “their pay scale is executive and administrative pay scale.” (Tr. 282-84, 293). As the Secretary notes, an employee who has been delegated authority over other employees, even temporarily, may be considered a supervisor for purposes of imputing knowledge. See Propellex Corp., 18 BNA OSHC 1677, 1680 (No. 96-265, 1999) (citation omitted). I conclude, consequently, that Mr. Santiaguel was a supervisor for purposes of knowledge in this matter and that, because he reviewed and approved A.R.’s FMLA application, his knowledge of her condition may be imputed to USPS.
Based on the foregoing, the Secretary has shown that USPS had knowledge of the illnesses of the two employees, A.R. and N.B. She has also shown that USPS had knowledge their illnesses were required to be reported and recorded. The alleged violations are accordingly affirmed.
Whether the Violations were Repeated
To demonstrate a “repeat” violation, the Secretary must establish the employer was previously cited for a violation of the same regulation or condition, or one that is substantially similar, and that the prior citation had become final before the alleged repeat violation. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The Secretary’s Exhibit C-3 contains copies of a number of final orders and informal settlement agreements, and related documents, issued within the past three years for violations of 29 C.F.R. 1904.29(b). C-3 includes final orders for violations of 29 C.F.R. 1904.29(b)(3) that were issued by OSHA’s Bellevue Area Office to other Seattle-area USPS facilities.
USPS does not dispute that the documents contained in C-3 show a prima facie case of repeat violations. It urges, however, that that is not the end of the inquiry and that the Secretary must also show the actual violations in this case were substantially similar to those in C-3. R. Brief, pp. 32-34. Upon reviewing C-3, I find that the Secretary has shown that the previous violations are substantially similar to those in this case. In particular, several of the previous citations alleged violations of 29 C.F.R. 1904.29(b)(3) in circumstances similar to those in this case, that is, a recordable incident was not recorded as required. The violations here were properly classified as repeat. Items 1a and 1b of Repeat Citation,1 alleging violations of 29 C.F.R. 1904.29(b)(2) and 29 C.F.R. 1904.29(b)(3), are affirmed as repeat violations.
The Secretary has proposed a total penalty of $5,000.00 for Items 1a and 1b. In assessing penalties, the Commission is to give due consideration to the gravity of the violations and to the size, history and good faith of the employer. See Section 17(j) of the Act. The Secretary asserts that the proposed penalty is appropriate in view of USPS’s large size and the fact that USPS has had multiple previous violations of OSHA’s record-keeping standards. The OSHA AD who conducted the inspection testified in this regard (Tr. 42-43). I find the proposed penalty of $5,000.00 to be appropriate. That penalty is accordingly assessed.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
Based upon the foregoing findings of fact and conclusions of law, it is ordered that:
1. Repeat Citation 1, Items 1a and 1b, alleging violations of 29 C.F.R. 1904.29(b)(2) and 29 C.F.R. 1904.29(b)(3), is AFFIRMED, and a total penalty of $5,000.00 is assessed.
Date: April 2, 2010