United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
OSHRC Docket No. 08-1292
Scott Glabman, Senior Appellate Attorney; Heather Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC
For the Complainant
Steven R. McCown, Esq.; Littler Mendelson, P.C., Dallas, TX
For the Respondent
Before: ROGERS, Chairman; ATTWOOD and MacDOUGALL, Commissioners.
BY THE COMMISSION:
In 2008, the Occupational Safety and Health Administration inspected Wal-Mart Distribution Center #6016 in New Braunfels, Texas, one of approximately 120 such centers operated by Wal-Mart nationwide. As a result, OSHA issued Wal-Mart a four-item citation under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, alleging serious violations of four provisions of the general industry personal protective equipment (“PPE”) standard—29 C.F.R. § 1910.132(d)(1) (requiring a PPE hazard assessment); 29 C.F.R. § 1910.133(a)(1) (requiring eye and face PPE); 29 C.F.R. § 1910.136(a) (requiring foot PPE); and 29 C.F.R. § 1910.138(a) (requiring hand PPE). OSHA proposed a single grouped penalty of $1,700 for the four items.
Following a hearing, Administrative Law Judge Patrick B. Augustine affirmed the two items related to the hazard assessment and eye and face PPE (Items 1a and 1b), vacated the two items related to foot and hand PPE (Items 1c and 1d), and assessed the $1,700 proposed penalty. Both parties filed petitions for review, and all four citation items are at issue before us. For the reasons that follow, we affirm Item 1a, vacate Items 1b, 1c, and 1d, and assess the $1,700 penalty.
The cited provision states that “[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of [PPE].” 29 C.F.R. § 1910.132(d)(1). The Secretary alleges that Wal-Mart violated this provision by failing to physically examine the New Braunfels Center to assess whether hazards necessitating PPE were present. Wal-Mart claims that it complied with the cited provision by performing a PPE hazard assessment at one of its other distribution centers, located in Searcy, Arkansas. According to Wal-Mart, this served as a “global” assessment for each of Wal-Mart’s distribution centers nationwide, including the one at New Braunfels.
The judge rejected this argument, concluding that the plain language of § 1910.132(d)(1), its preamble, and the provision’s non-mandatory Appendix B, all support the Secretary’s reading of the standard as requiring a hazard assessment at each particular workplace. He also found that the Searcy Center assessment did not constitute an assessment of the New Braunfels Center because Wal-Mart failed to verify that work conditions at New Braunfels were equivalent to those at Searcy. The judge reasoned that while Wal-Mart’s reliance on the Searcy Center assessment assumed physical uniformity among all Wal-Mart distribution centers, the standard addresses work conditions, not simply workplace layout. For the following reasons, we agree with the judge and affirm this citation item.
On review, Wal-Mart first argues that because OSHA intended the cited standard to be performance-oriented, employers have the discretion to comply by using a global hazard assessment. See Personal Protective Equipment for General Industry; Revisions (“PPE Revisions”), 59 Fed. Reg. 16,334, 16,336 (Apr. 6, 1994) (“Paragraph (d) of [§ 1910.132] is [a] . . . performance-oriented provision which simply requires employers to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed.”). The Secretary responds that while the PPE selection portion of the standard is performance-oriented, the hazard assessment requirement is not, and the phrase “assess the workplace” in the provision plainly means that the employer must perform an on-site, individualized assessment of the subject worksite, thus precluding use of a “global assessment.”
Section 1910.132(d)(1) is silent regarding the method an employer must use to assess its workplace for hazards, but the preamble indicates that the assessment must take into account the conditions specific to each worksite:[A] 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 believes that the employer will be capable of determining and evaluating the hazards of a particular workplace.
[T]he Agency has determined that employers can adequately verify compliance with § 1910.132(d) of the final rule through a written certification which identifies the workplace evaluated . . . .
PPE Revisions, 59 Fed. Reg. at 16,336 (emphasis added). See also id. (“OSHA proposed to require employers to select the PPE for their employees based on an assessment of the hazards in the workplace, and the hazards which employees are likely to encounter.”) (emphasis added). This concept is also reflected in the preamble’s reference to an example of a compliant hazard assessment procedure in non-mandatory Appendix B, which entails conducting “a walk-through survey” of the areas in question, “observ[ing]” the sources of PPE hazards, and selecting the appropriate PPE for the identified hazards. Id. at 16,336, 16,362-63 (emphasis added); see App’x B to Subpart I of Part 1910 (“PPE Standards”), 29 C.F.R. § 1910.132, et seq. Consequently, if the Secretary can show that the Searcy Center assessment did not take account of the conditions specific to the New Braunfels Center, he will have established Wal-Mart’s noncompliance irrespective of whether, under other circumstances, there may be an effective substitute for conducting an assessment on-site. See, e.g., Gen. Motors Corp., 22 BNA OSHC 1019, 1028, 2004-09 CCH OSHD ¶ 32,928, p. 53,610 (No. 91-2834E, 2007) (consolidated) (preamble is best and most authoritative statement of the Secretary’s legislative intent for standard susceptible to different interpretations) (citing Am. Sterilizer Co., 15 BNA OSHC 1476, 1478, 1991-93 CCH OSHD ¶ 29,575, pp. 40,015-16 (No. 86-1179, 1992) (internal quotation marks omitted)).
According to Wal-Mart, the Secretary has failed to make this showing on two grounds. First, the company claims that the testimony of its Logistics Division Safety and Environmental Director (“Safety Director”), whose office monitors injuries and illnesses for Wal-Mart distribution centers nationwide, establishes that the “design and operations” of the two Centers are similar. Specifically, Wal-Mart points to the Safety Director’s response to the question, “from your observations of both [the Searcy and New Braunfels] Distribution Centers, from your personal observations, are the order [filler] functions identical?” He responded, “[y]es, they are,” and indicated that the functions and job requirements identified in the citation are the same and involve the same equipment. But the Safety Director subsequently testified that he had not been to the New Braunfels Center prior to the inspection. We find, therefore, that he had not determined from personal observation that the conditions at New Braunfels were the same as those at Searcy as of the relevant period.
Second, Wal-Mart contends that the document it refers to as the “Searcy Center assessment”—which found, among other things, that Searcy Center box-cutter employees needed PPE—was made accessible to all Wal-Mart distribution centers via the company’s intranet. Wal-Mart argues that the applicability of this document to New Braunfels is corroborated by the fact that New Braunfels management testified that they understood the intranet document to represent corporate policy and that PPE was, in fact, provided to box-cutter employees at New Braunfels. However, this does not mean that either corporate or New Braunfels management had verified that the conditions at New Braunfels were equivalent to those at Searcy. Moreover, as Wal-Mart’s own Safety Director acknowledged, “process or equipment changes” can cause “the circumstances or conditions at . . . distribution centers [to] differ in some way from Searcy, Arkansas[.]” Despite this potential for difference, the record shows that Wal-Mart never verified the equivalency of conditions between the two facilities. The New Braunfels general manager testified that prior to the OSHA inspection, neither he nor his subordinates had any communications with anyone at the corporate level about a hazard assessment at the New Braunfels Center. In addition, the general manager identified the “asset protection manager” as the only official at the New Braunfels Center qualified to perform a hazard assessment, and that manager had no involvement with the Searcy Center assessment.
Finally, we find the Secretary has shown that Wal-Mart did not otherwise conduct a hazard assessment of the New Braunfels Center. Although Wal-Mart asserts that its “asset protection managers” frequently conduct physical inspections of its workplaces and discuss safety issues with employees, the company does not allege that any of these officials specifically assessed the New Braunfels Center for PPE hazards. In addition, the New Braunfels general manager’s testimony shows that: (1) he does not consider himself qualified to perform a PPE hazard assessment; (2) neither he nor his staff conducted a comprehensive assessment at the New Braunfels Center; and (3) he was unaware of any other Wal-Mart official having conducted one. In sum, the Secretary has shown that the Searcy Center assessment was insufficient to establish compliance with the cited standard at the New Braunfels Center because Wal-Mart never verified that conditions at New Braunfels were equivalent to those at Searcy, and Wal-Mart did not otherwise conduct a hazard assessment of the New Braunfels Center. Accordingly, we find that Wal-Mart failed to comply with § 1910.132(d)(1) and affirm Item 1a.
II. Serious Citation 1, Item 1b – Eye/Face PPE
The cited provision states that “[t]he employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards . . . .” 29 C.F.R. § 1910.133(a)(1). Under this citation item, the Secretary alleges that Wal-Mart failed to provide PPE to protect employees who work as “order fillers” at the New Braunfels Center from eye/face hazards. Order fillers label merchandise and unload it from wooden pallets stacked on multi-level shelving systems (“modules”). These employees work 10-hour shifts separating the contents of the pallets onto conveyer belts and ultimately into boxes, and then placing the emptied pallets in a return area.
According to the compliance officer, order fillers are exposed to eye hazards from wood chips and debris. This debris, she explained, originates from damaged pallets as they slide forward within the module system. The debris then falls through metal grating onto lower levels within the modules where order fillers might be working. In addition, the compliance officer testified that pallets stacked higher than eye-level on the third level of the module system present the possibility of objects falling off of them and striking order fillers in the eyes and/or face. She also stated that the tops of the pallets are covered in dust, which she determined could get into order fillers’ eyes.
To establish the applicability of a PPE standard that, by its terms, applies only where a hazard is present, the Secretary’s burden includes demonstrating that there is a significant risk of harm and that the employer had actual knowledge of a need for protective equipment, or that a reasonable person familiar with the circumstances surrounding the hazardous condition, including any facts unique to the particular industry, would recognize a hazard requiring the use of PPE. Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 2065, 1984-85 CCH OSHD ¶ 26,961, p. 34,611 (No. 78-1443, 1984) (consolidated) (citation omitted), aff’d, 764 F.2d 32 (1st Cir. 1985); Armour Food Co., 14 BNA OSHC 1817, 1820, 1987-90 CCH OSHD ¶ 29,088, p. 38,881 (No. 86-247, 1990); ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1140, 1993-95 CCH OSHD ¶ 30,045, p. 41,233 (No. 88-1250, 1993). “Commission precedent also holds that evidence of industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances would perceive a hazard, though it is not necessarily determinative.” GM Parts, 11 BNA OSHC at 2065, 1984-85 CCH OSHD at p. 34,611 (citing Owens-Corning Fiberglass Corp., 7 BNA OSHC 1291, 1295, 1979 CCH OSHD ¶ 23,509, p. 28,491 (No. 76-4990, 1979), aff’d, 659 F.2d 1285 (5th Cir. Unit B 1981)). See also Armour Food Co., 14 BNA OSHC at 1820, 1987-90 CCH OSHD at p. 38,881.
In affirming this citation item, the judge concluded that despite what he characterized as a low incidence of four eye/face injuries at New Braunfels, the severity of potential harm was sufficient to give Wal-Mart constructive notice of a hazard requiring eye/face protection. In reaching this conclusion, the judge cited Commission precedent for the proposition that “the eye is an especially delicate organ and . . . any foreign material in the eye presents the potential for injury.” See Vanco Constr., Inc., 11 BNA OSHC 1058, 1060, 1983-84 CCH OSHD ¶ 26,372, p. 33,453 (No. 79-4945, 1982) (citing Stearns-Roger, Inc., 7 BNA OSHC 1919, 1921, 1979 CCH OSHD ¶ 24,008, p. 29,156 (No. 76-2326, 1979)), aff’d, 723 F.2d 410 (5th Cir. 1984). He also credited the compliance officer’s testimony that employers in Wal-Mart’s industry “h[ad] a blanket policy of [requiring] safety glasses . . . .” Thus, the judge concluded that the cited standard was applicable to Wal-Mart and was violated. We vacate this item for the following reasons.
With regard to injury rate, Wal-Mart argues that the eye/face injuries relied upon by the judge were “infrequent and incidental,” and thus a reasonable person would not have recognized a hazard requiring the use of eye/face protection. Both the number of injuries and number of workers exposed are in dispute on review. The Secretary argues that Wal-Mart’s injury logs reflect “at least seven” pertinent eye/face injuries from 2006 to early 2008, among an order filler population at the New Braunfels Center of approximately 60 workers. Using these numbers, the Secretary calculates the eye/face injury rate as between 11⅔ percent and 17½ percent. Wal-Mart asserts that the injury rate was .32 percent.
The Secretary argues that Wal-Mart’s figure is flawed because it is based on a comparison between total reported injuries at the New Braunfels Center and total employee-hours worked, rather than order filler injuries and total order filler hours worked. However, the Secretary’s figures are also questionable because they do not account for the number of hours worked and, as discussed below, they are based in part on non-pertinent incidents. Neither the Secretary, who has the burden of proof on this issue, nor the company, has provided expert or other relevant evidence describing accepted injury rate calculation methodologies. In the absence of such evidence, we find that the record does not establish the injury rate claimed by either the Secretary or Wal-Mart. Accordingly, our assessment of the record is limited to consideration of how many pertinent injuries occurred over an approximately two-year period in light of an estimate of the total number of order fillers.
While the Secretary has alleged that there were seven such injuries, we find that he has failed to establish that four of those seven incidents are pertinent. Wal-Mart’s Safety Director offered unrebutted testimony that three of these incidents were wholly unrelated to order fillers. With regard to a fourth incident, the Secretary acknowledges that the injury records are too imprecise in their description of the employee’s work or how the injury occurred to determine whether the incident involved an order filler. Consequently, we find that the Secretary has established the existence of only three pertinent incidents.
We agree with Wal-Mart that these incidents furnish an insufficient basis for finding that the company had actual or constructive notice of the alleged hazards. With only three eye/face incidents in an order filler population of approximately 60 workers over a period of more than two years—one of which appears to have resulted in a very slight injury, and two of which lack information about the extent of injury—we cannot find that the evidence is sufficient to show that Wal-Mart had actual knowledge of a hazard requiring eye/face protection. See GM Parts, 11 BNA OSHC at 2065-66, 1984-85 CCH OSHD at p. 34,611; see also Cotter & Co. v. OSHRC, 598 F.2d 911, 915 (5th Cir. 1979) (finding “no evidence in the record of a specific, confirmed knowledge on [employer’s] part regarding a hazard warranting [PPE].”). Indeed, the evidence in the instant case is no more supportive of the Secretary’s position than the evidence was in GM Parts, in which the Commission rejected the Secretary’s claim that actual knowledge had been established by what was found to be a very low incidence of injuries. Id. at 2065, 1984-85 CCH OSHD at p. 34,611. In that case, the injuries sustained by employees at two separate auto parts warehouses were, for one warehouse, five out of 150 employees over a 2½-year period, and for the other warehouse, 12 out of 25 employees over an eight-year period. Id. at 2063-64, 1984-85 CCH OSHD at pp. 34,609-10. The Commission was “unconvinced that the number of injuries incurred gave [GM] actual knowledge that a hazard warranting [PPE] existed.” Id. at 2065, 1984-85 CCH OSHD at p. 34,611. Similarly here, the record is insufficient to establish that Wal-Mart had actual knowledge of a hazard warranting the use of eye/face protection.
The evidence regarding injury rate is also insufficient to establish that Wal-Mart had constructive notice of a hazard requiring the use of eye/face protection. Absent sufficient evidence establishing a reliable injury rate, there is no basis to conclude here that a reasonably prudent employer should have known that employees were exposed to eye/face injuries. The remaining evidence is equally unpersuasive in establishing that Wal-Mart should have recognized the need for eye/face protection. We agree with Wal-Mart that recognition of a hazard requiring PPE cannot be based on industry practice here because there is insufficient evidence of industry custom. Although the compliance officer testified that in her experience employers in Wal-Mart’s industry “[t]ypically . . . have a blanket policy of [requiring the use of] safety glasses,” the Secretary failed to establish that the compliance officer was knowledgeable about Wal-Mart’s industry. Moreover, the compliance officer’s testimony in this regard was contradicted by Wal-Mart’s Safety Director, who testified that the company’s decision not to require the use of eye/face protection was in line with the rest of its industry. As a consequence, the Secretary failed to show that industry practice required the use of eye/face protection. Therefore, we find that neither industry custom nor injury rate provides a basis here for finding that a reasonable person familiar with the circumstances in the industry would have recognized a hazard requiring the use of eye/face protection at the New Braunfels Center.
In sum, we conclude the Secretary has failed to establish the applicability of the cited provision because he did not show that Wal-Mart had actual or constructive notice of an eye/face hazard for which PPE would be necessary. Accordingly, we vacate Item 1b.
III. Serious Citation 1, Item 1c – Foot PPE
The cited provision states that “[t]he employer shall ensure that each affected employee uses protective footwear when working in areas where there is a danger of foot injuries . . . .” 29 C.F.R. § 1910.136(a). Under this citation item, the Secretary alleges that Wal-Mart failed to provide PPE to protect its order filler employees from hazards to their feet. The compliance officer testified that while conducting the inspection, she observed numerous damaged pallets, which were splintered and/or had exposed nails, and she became aware that order fillers were trained to “kick up” pallets once they were emptied—this required the employee to position the empty pallet partly over the edge of the module shelf, then step on the pallet so that it would stand up on its edge. Wal-Mart states that this practice allowed order fillers to grab the pallets without having to repeatedly bend over to pick them up, thus minimizing potential back strain. According to the compliance officer, the pallets could splinter and injure an employee’s feet while being kicked up, or an employee’s feet could be injured by heavy objects dropping on them. The judge identified six pertinent foot injuries among order fillers at the New Braunfels Center but vacated this item based on what he found was a lack of evidence indicating the requisite degree of harm. The judge also determined that the evidence of industry custom with regard to foot protection was “at best, inconclusive.” For the following reasons, we affirm the judge.
On review, the Secretary argues that Wal-Mart had actual knowledge of hazards requiring foot protection because its managers knew first-hand of injuries from having reviewed the company’s injury records. The Secretary also argues that the foot injury rate at the New Braunfels Center was sufficient to have provided a reasonable person with notice of a hazard requiring foot protection. Specifically, the Secretary asserts that, among approximately 60 order fillers, there were a “minimum of eight” foot injuries, with a resulting injury rate of between 13⅓ percent and 20 percent. Wal-Mart acknowledges that foot injuries have occurred at the New Braunfels Center but asserts that they have been too infrequent to indicate the presence of a hazard, and also contends that the Secretary failed to establish industry custom. As noted above, we are unable to rely on the parties’ calculated injury rates, but we conclude that the evidence only establishes three of the injuries claimed by the Secretary, which we find is too few to have provided Wal-Mart with notice of a hazard.
With respect to four of the injuries identified by the Secretary, the injury records show that they are not pertinent here: the incidents involving Employee Nos. C6200294 and C7235096 did not involve the order filler position; those involving Employee Nos. C6219338 and C7224578 involved leg injuries but, due to a lack of detail about the incidents, the records do not demonstrate that there was a potential for foot injury. Consequently, the Secretary has established three relevant foot injuries among these employees during this period. As with the eye/face PPE item, we conclude that, in the circumstances of this case, there was an insufficient number of injuries to establish either actual knowledge of a hazard requiring foot protection, or that a reasonable person would have recognized such a hazard. See GM Parts, 11 BNA OSHC at 2065-66, 1984-85 CCH OSHD at pp. 34,611-12; Armour Food Co., 14 BNA OSHC at 1820, 1987-90 CCH OSHD at pp. 38,881-82; ConAgra, 16 BNA OSHC at 1140-42, 1993-95 CCH OSHD at pp. 41,233-35.
The Secretary argues that “where the evidence establishes . . . a hazard, a low injury rate does not negate it,” citing Hamilton Fixture, in which the Commission recognized that a “ ‘low number of recorded injuries has probative value regarding the [absence] of a hazard, but does not rebut . . . objective evidence of exposure to a hazard.’ ” 16 BNA OSHC 1073, 1095-96, 1993-95 CCH OSHD ¶ 30,034, p. 41,191 (No. 88-1720, 1993) (quoting Dayton Tire & Rubber Co., 8 BNA OSHC 2086, 2092, 1980 CCH OSHD ¶ 24,842, p. 30,639 (No. 16188, 1980)). But Hamilton is inapposite because we find that, regardless whether a hazard existed here, the number of injuries is so low that Wal-Mart lacked the requisite notice of a hazard.
In addition, the Secretary has not shown that Wal-Mart had the requisite notice through industry custom evidence. The compliance officer testified that she had “normally” seen foot protection in “warehouse-type” worksites where pallets were used, but also stated that she had only been to “a few” such facilities. The only other evidence of industry custom is the testimony of Wal-Mart’s Safety Director, who denied that protective footwear was customary in its industry, and said that Wal-Mart had knowledge, both by sharing information with a trade association and by participating in academic research, that it was not customary in Wal-Mart’s industry to provide such PPE. Thus, we find that the weight of the evidence on this issue is contrary to the Secretary’s position.
Accordingly, we conclude that the Secretary has failed to establish a violation of § 1910.136(a), and we vacate Item 1c.
IV. Serious Citation 1, Item 1d – Hand PPE
The cited provision states that “[e]mployers shall select and require employees to use appropriate hand protection when employees’ hands are exposed to hazards . . . .” 29 C.F.R. § 1910.138(a). Under this citation item, the Secretary alleges that Wal-Mart failed to provide PPE to protect its order filler employees from hazards to their hands. The compliance officer testified that she believed splinters from damaged pallets posed potential hand hazards to order fillers, who were required to handle the pallets with their bare hands while placing them in the return area, as well as while removing jammed pallets from the shelving modules. The judge vacated this item, finding that the Secretary failed to establish industry custom requiring the use of hand protection in warehouse facilities that use wood pallets, and that the record indicates that hand injuries were both fewer in number and of lesser severity than foot injuries. We affirm the judge.
On review, the parties make essentially the same arguments that they made with regard to the foot PPE item. The Secretary argues that Wal-Mart had actual knowledge of hazards requiring hand protection and that the hand injury rate was sufficient to have provided a reasonable person with notice of such hazards. The Secretary asserts that the injury logs reflect “a minimum of two” relevant hand injuries, resulting in a hand injury rate of between 3⅓ and 5 percent. Wal-Mart acknowledges that hand injuries have occurred at the New Braunfels Center, but maintains that it lacked actual knowledge of hazards requiring hand protection, and that a reasonable person would not have had notice of such hazards, claiming the hand injury rate was only .32 percent.
In reviewing the evidence which, as previously noted, excludes the parties’ injury rate calculations, we find that the Secretary has only established that one of the alleged hand injuries is pertinent. The other, involving Employee No. C8220322, has not been established as pertinent as the Safety Director’s unrebutted testimony establishes that it did not involve an order filler. We determine that a single hand injury is insufficient to support a conclusion that Wal-Mart recognized a hazard requiring the use of PPE. In addition, the Secretary has not shown that Wal-Mart had the requisite notice through industry custom evidence, as the compliance officer conceded that she saw a lack of hand protection in other facilities using wooden pallets, and Wal-Mart’s Safety Director testified to the same observation. In sum, the Secretary’s evidence is inadequate to establish actual or constructive notice of a hand hazard for which PPE would be necessary. As a result, we conclude that the Secretary has failed to establish a violation of § 1910.138(a), and we vacate Item 1d.
V. Characterization and Penalty
The judge characterized both of the violations he affirmed as serious based upon the duration of exposure and number of employees exposed. He also assessed the Secretary’s proposed penalty of $1,700 for the two grouped items. On review, Wal-Mart does not challenge the characterization or penalty for the hazard assessment violation that we affirm, and we find no reason to disturb the judge’s findings concerning the penalty amount. E.g., KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11, 2004-09 CCH OSHD ¶ 32,958, p. 53,925 n.11 (No. 06-1416, 2008) (affirming alleged characterization and assessing proposed penalty where characterization and penalty were not in dispute). Accordingly, we affirm Item 1a as serious and assess the $1,700 proposed penalty.
We affirm Serious Citation 1, Item 1a, and assess a penalty of $1,700. We vacate Items 1b, 1c, and 1d.
Thomasina V. Rogers
Cynthia L. Attwood
Heather L. MacDougall
Dated: April 27, 2015 Commissioner
MacDOUGALL, Commissioner, dissenting in part:
This case raises the important issue with regard to § 1910.132(d)(1) of whether an employer must conduct separate PPE hazard assessments of each facility it owns when it claims that an assessment conducted of another virtually identical facility serves as the assessment for the facility at issue. See 29 C.F.R. § 1910.132(d)(1). The Secretary claims that an employer must conduct separate PPE hazard assessments because an employer must perform an on-site, individual assessment of the subject worksite, thus precluding use of a “global assessment.” I find that the standard’s requirement that an employer “assess the workplace” does not necessitate a site-specific, walk-through survey to determine if hazards are present; that any construction of the standard by the Secretary to the contrary is unreasonable; and that the Secretary has failed to prove Wal-Mart’s noncompliance with the cited standard. Rather, Wal-Mart complied with the cited provision by conducting a global assessment that met the standard’s requirements and which served as the workplace assessment for the New Braunfels facility. For these reasons, I dissent from my colleagues on the issue presented in Serious Citation 1, Item 1a regarding the asserted PPE hazard assessment violation.
Section 1910.132(d)(1) states that “[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of [PPE].” 29 C.F.R. § 1910.132(d)(1). The preamble to the PPE final rule adds:
OSHA believes that a hazard assessment is an important element of a PPE program because it produces the information needed to select the appropriate PPE for the hazards present or likely to be present at particular workplaces. The Agency believes that the employer will be capable of determining and evaluating the hazards of a particular workplace.
PPE for General Industry, Final Rule, Revisions, 59 Fed. Reg. 16,334, 16,336 (Apr. 6, 1994) (“PPE Revisions”). The PPE Revisions also contain a non-mandatory Appendix B that provides examples of compliant hazard assessment procedures. PPE Revisions, 59 Fed. Reg. at 16,336. Those procedures may include “a walk-through survey of the areas in question.” Id.; App’x B to Subpart I of Part 1910 (“PPE Standards”), 29 C.F.R. § 1910.132, et seq.
While Appendix B suggests that an employer conduct a “walk-through survey of the areas in question,” OSHA placed this language in a non-mandatory appendix rather than in the standard itself, which is consistent with the agency’s decision to promulgate § 1910.132(d)(1) as a performance standard. See 59 Fed. Reg. at 16,336 (stating that § 1910.132(d)(1) is “a performance-oriented provision which simply requires employers to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed.”). A performance standard differs from a specification standard in that, rather than directing specific measures to be taken whenever a hazard identified by the Secretary is present, it allows the employer, within the standard’s general guidelines, flexibility to identify the hazards particular to its own working conditions and determine the steps necessary to abate them. See Diebold, Inc., 3 BNA OSHC 1897, 1900, 1975-76 CCH OSHD ¶ 20,333, p. 24,250 (No. 6767, 1976) (consolidated), rev’d on other grounds, 585 F.2d 1327 (6th Cir. 1978). In other words, performance standards state the required result without specifically mandating how that result is to be achieved. Id.
Because the phrase “assess the workplace” in § 1910.132(d)(1) does not state with specificity what an employer must do to comply with the standard, we are to apply the well-established principle that a broadly-worded regulation may be given meaning in a particular situation by reference to objective criteria, including the knowledge and perception of reasonable persons knowledgeable about the industry. See ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1140, 1993-95 CCH OSHD ¶ 30,045, p. 41,233 (No. 88-1250, 1993) (citing Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974)), rev’d on other grounds, 25 F.3d 653 (8th Cir. 1994). Such broad performance-oriented standards may be given meaning in particular situations by reference to objective criteria, including the knowledge of reasonable persons familiar with the industry. See Brooks Well Servicing, Inc., 20 BNA OSHC 1286, 1291, 2002-04 CCH OSHD ¶ 32,675, p. 51,475 (No. 99-0849, 2003); Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2198, 2004-09 CCH OSHD ¶ 32,880, p. 53,228 (No. 00-1052, 2005) (both cases finding employer’s exercise of discretion with performance-based standard is evaluated according to what would be reasonable for a particular situation).
Based upon the text of the standard and governing precedent, I find that the Secretary improperly attempts to transform § 1910.132(d)(1) from a performance-oriented standard into a specification standard and has failed to prove Wal-Mart’s noncompliance with the cited standard. Section 1910.132(d)(1)’s requirement to “assess the workplace” does not specify how the assessment is to be accomplished, and I conclude that “assess the workplace” does not equate with “conduct a site-specific, walk-through survey.” The Secretary’s reading does not sensibly conform to the purpose and wording of the standard, ignores the fact that the only reference to a walk-through survey is in the non-mandatory part of the standard, and fails to give Wal-Mart fair notice that a site-specific, walk-through survey was required to comply with it. See Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144, 158-159 (1991) (reviewing courts must defer to the Secretary's interpretation of his own regulations where that interpretation is reasonable, taking into account such factors as the consistency with which the interpretation has been applied, “the adequacy of notice to regulated parties,” and “the quality of the Secretary's elaboration of pertinent policy considerations”). See also Superior Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 n.2, 2002-04 CCH OSHD ¶ 32,667, p. 51,417 n.2 (No. 96-1043, 2003); Union Tank Car Co., 18 BNA OSHC 1067, 1069, 1995-97 CCH OSHD ¶ 31,445, p. 44,472 (No. 96-0563, 1997).
The record shows the relevant facts. The New Braunfels facility at which the citation was issued is one of approximately 120 distribution centers owned by Wal-Mart where approximately 33,000 employees work. As the judge noted, the New Braunfels facility is virtually identical in physical layout and operations to other Wal-Mart distribution centers, including one located in Searcy, Arkansas. Employees working as order fillers perform the same job functions, use the same equipment, and work in virtually identical workspaces in the 120 distribution centers owned by Wal-Mart across the country. These order fillers are responsible for labeling and unloading freight, merchandise, and materials from wood pallets. Wal-Mart has a safety department that develops safety policies and procedures for all distribution centers to follow. The asset protection regional teams and managers are responsible for carrying out Wal-Mart’s safety policies and procedures at each distribution center. Each distribution center, including New Braunfels, has a PPE hazard assessment and safety program, which is developed in consideration of industry standards, agency guidance, and interpretative letters on the necessity of PPE.
In conducting the PPE hazard assessment at issue, Wal-Mart’s asset protection managers reviewed the job functions and working conditions of order fillers (and other positions working in its facilities). In developing the assessment for its distribution centers, Wal-Mart concluded that there are two items of PPE required for employees using box knives, but no PPE required for the order filler employees at issue in this case. Wal-Mart trained new hires and current employees, such as those required to use box knives, on the use of any required PPE. However, the PPE hazard assessment concluded that no hazards existed that required order filler employees to wear eye or face, foot, or hand PPE.
In vacating the other items at issue (involving eye and face, foot, and hand PPE for order fillers), my colleagues and I have concluded today that Wal-Mart’s assessment of a lack of need for eye or face, foot, or hand PPE was correct based on the record evidence and Wal-Mart’s reference to objective criteria, including industry custom and practice. Thus, the record establishes that Wal-Mart met § 1910.132(d)(1)’s requirement of identifying the specific job tasks necessitating use of PPE. Despite Wal-Mart’s accurate assessment, the Secretary cites Wal-Mart for reaching this conclusion utilizing a global assessment to determine the appropriateness of PPE at the New Braunfels facility. However, there is nothing in the standard that requires each facility to conduct a site-specific, walk-through survey to determine if hazards are present. In addition, the Secretary has failed to show that Wal-Mart’s global assessment as applied to the New Braunfels facility was unreasonable under the circumstances. Rather, I find it was a reasonable exercise of discretion based on Wal-Mart’s awareness of hazards in its workplace to select the appropriate PPE for the work being performed at all its distribution centers, including the New Braunfels facility. See PPE Revisions, 59 Fed. Reg. at 16,336 (granting discretion to employers “to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed.”).
Given that no eye or face, foot, or hand PPE was necessary for the order fillers, I do not see how Wal-Mart’s assessment can be deemed unreasonable. See PPE Revisions, 59 Fed. Reg. at 16,336 (“OSHA can best determine whether the employer conducted an adequate hazard assessment by inspecting the areas where PPE is required.”). See also White Wave, Inc., 20 BNA OSHC 1784, 1786, 2004-09 CCH OSHD ¶ 32,744, p. 51,982 (03-0962, 2004) (ALJ) (judge’s decision addressing § 1910.132(d)(1) and finding that where the evidence showed that the employer considered the hazard but found no hazard requiring the use of PPE, there could be no violation, because the standard “requires only that hazards requiring PPE be identified,” and “there can be no violation of the cited standard if the Secretary fails to show the existence of such a hazard by the preponderance of the evidence.”). Further, if there are any differences between the New Braunfels facility and the distribution center used as the benchmark for the global assessment, the record does not identify them as the Secretary offered no evidence to contradict Wal-Mart’s evidence that all 120 distribution centers are “cookie cutter” and “virtually identical,” or, likewise, Wal-Mart’s evidence that the operations and order fillers’ job duties are “identical.”
As Wal-Mart’s Logistics Safety and Environmental Director (“Safety Director”) repeatedly and consistently testified, based on his own observation, the order fillers’ jobs and tasks “are the same,” whether they perform their duties in “New Braunfels, Texas; Searcy, Arkansas; Bentonville, Arkansas; [or] Lewiston, Maine,” and the hazards they face, which were considered for the appropriateness of PPE, “are the same,” right “down to the same pallets.” Further, the Safety Director testified that Wal-Mart intended for the global PPE hazard assessment conducted at the Searcy facility to apply to its other “cookie cutter” distribution centers, including the one at New Braunfels.
My colleagues disregard the ample record evidence that Wal-Mart intended the global assessment to include other “cookie cutter” facilities, including the one at New Braunfels. Instead, they take out of context the Safety Director’s testimony that if there were “process or equipment changes,” which would cause “the circumstances or conditions at . . . distribution centers [to] differ in some way from Searcy, Arkansas,” they would be considered by the company. My colleagues somehow construe this testimony to mean that because Wal-Mart acknowledged that potential, but unidentified, differences between two “cookie cutter” facilities would be considered, the Secretary has proven noncompliance with the cited standard. However, in remaining mindful of who has the burden to show noncompliance, I conclude that the Secretary failed to meet his burden to show that the global assessment conducted by Wal-Mart was unreasonable and insufficient to identify hazards at the New Braunfels facility. Therefore, I would vacate Serious Citation 1, Item 1a.
Heather L. MacDougall
Dated: April 27, 2015 Commissioner
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 08-1292
WAL MART DISTRIBUTION CENTER #6016
and its successors,
Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
Steven R. McCown, Esq., Littler Mendelson, Dallas, Texas
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to 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 Wal Mart Distribution Center #6016 (Respondent or NB DC), on February 20, 2008, in response to an employee complaint. As a result of the inspection, OSHA issued a Citation and Notification of Penalty to Respondent alleging four serious violations of the Personal Protective Equipment (PPE) general industry standard with a proposed grouped penalty of $1.700.00. Specifically, the Secretary determined that Respondent: (i) failed to assess the NB DC to determine if hazards were present or likely to be present at that facility, and (ii) failed to require the use of personal protective equipment for its order fillers’ eyes and/or face, feet and hands. Respondent timely contested the citation and a trial was conducted May 19-20, 2009, in Austin, Texas.
To establish a violation of a safety standard, the Secretary must prove by preponderance of the evidence: (a) the applicability of the cited standard; (b) the employer’s noncompliance with the standard’s terms; (c) employee access to the violative conditions; and (d) the employer’s actual or constructive knowledge of the violation (i.e., the employer either knew or, with the exercise of reasonable diligence could have known, of the violative conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
The parties stipulated: (i) jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of the Act and (ii) Respondent was an employer engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. § 652(5). (Complaint and Answer).
The NB DC, located in New Braunfels, Texas, is “massive” – measuring roughly 1.2 million square feet or “somewhere around 20 acres.” (Vol. I, Tr. 40, 71, 206; Vol. II, Tr. 64). It is one of approximately 120 Wal Mart owned distribution centers (Centers) in the continental United States, which employ more than 33,000 individuals. (Vol. II, Tr. 28, 105-106) It is similar in design and operations to the other Wal Mart Centers, including one located in Searcy, Arkansas. (Vol. I, Tr. 192; Vol. II, Tr. 35, 44, 45, 78, 90).
Robert Damarodas (Damarodas) has been the General Manager of the NB DC at various times since 1990. Damarodas is responsible for ensuring that merchandise remains in sellable condition throughout the distribution process. (Vol. I, Tr. 154-156). Craig Lindley (Lindley) is the current Asset Protection Manager at NB DC. (Vol. I, Tr. 216). Lindley is responsible for safety at NB DC. As part of his duties, he reports injuries to regional and corporate personnel for analysis on a weekly basis. (Vol. I, Tr. 217; Vol. II, Tr. 32). Michael Trusty (Trusty) is the Safety and Environmental Director for Wal Mart Logistics Division. Trusty develops safety policy, procedures and practices for Wal Mart Centers and warehouses nationwide. (Vol. II, Tr. 27, 29). Trusty works in the Wal Mart corporate headquarters in Bentonville, Arkansas. (Vol. II, Tr. 29). The NB DC and the Searcy Center are located in different regions, and therefore, are subject to separate regional oversight. (Vol. I, Tr. 192; Vol. II, Tr. 29-30, 112).
Employees at the NB DC perform three principal functions – receiving, order filling and shipping and support functions - maintenance, security, quality assurance and data processing. (Vol. I, Tr. 155). This case focuses on employee’s performance of the “order filling” function. (Vol. I, Tr. 156).
The order filling function at the NB DC is primarily performed in the vicinity of nine modules (large shelving systems) which are divided into three levels. Each level contains three layers of shelving upon which pallets or merchandise are stacked. (Vol. I, Tr. 42, 71, 215). Order fillers label and unload stacked merchandise from primarily wooden pallets on the shelves onto conveyor belts for distribution to individual Wal Mart stores. (Vol. I, Tr. 42, 44-45, 46, 71; Ex. C-2). Most pallets are stacked with items to a height of 40 inches, but some reach shoulder level or higher. (Vol. I, Tr. 49, 52-53; Ex. C-2). In such instances, order fillers use hooks to pull the items towards them for removal. (Vol. I, Tr. 52). Moreover, to facilitate the forward movement of the pallets, the shelves are slightly inclined toward the order fillers on rollers. (Vol. I, Tr. 43, 51, 71; Ex. C-5).
Once the pallets are emptied, order fillers remove them – sometimes by “kicking–up” pallets with their feet to their hands – and carry them to a nearby pallet return area of the modules where they are restacked four to five pallets high. (Vol. I, Tr. 45, 76, 101; Vol. II, Tr. 60; Ex. C-2). Order fillers then pull the next loaded pallet forward and repeat the process - usually more than twenty times a day. (Vol. I, Tr. 55, 74). Order fillers are subject to a processing quota of close to 425 boxes an hour. (Vol. I, Tr. 54).
Order fillers at the NB DC typically perform this function without hand, eye, face or foot protection as none is required by the Respondent. (Vol. I, Tr. 45, 46, 49, 75, 76, 91, 98, 186). Some of the wood pallets that the order fillers handle are splintered, have exposed nails, and weigh as much as seventy pounds. (Vol. I, Tr. 47, 74, 92, 100, 127, 130, 208; Vol. II, Tr. 98-99; Ex. C-3). In fact, of the roughly 90,000 pallets inside the facility, approximately 2,000 damaged pallets are repaired by a third party at the NB DC every day. (Vol. I, Tr. 125, 189, 206, 214).
OSHA Compliance Safety and Health Officer Miller (CSHO) conducted an inspection of the NB DC (Vol. I, Tr. 67, 123-124, 140). Accompanied by Damarodas and Lindley, among others, the CSHO conducted a walk-around of the warehouse area where the order filling function is performed. (Vol. I, Tr. 69). At the time of the inspection, the CSHO also requested hazard assessment documentation for the NB DC. (Vol. I, Tr. 76). Respondent did not provide any documentation of an NB DC Hazard Assessment until after the issuance of the instant citations. (Vol. I, Tr. 120). Based upon the CSHO’s inspection, the Secretary issued the Citation alleging the four grouped serious items.
Hazard Assessment Discussion
Citation 1 Item 1(a): 29 C.F.R. § 1910.132(d)(1) (Hazard Assessment)
The Secretary alleges that Respondent violated 29 C.F.R. § 1910.132(d)(1) because it did not assess the NB DC. For hazards, section 1910.132(d)(1) provides in part:
Hazard assessment and equipment selection. (1) The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).
The Respondent does not dispute that the standard applies. (Vol. I, Tr. 159). Respondent’s primary argument is that it did not violate the standard. Respondent maintains that a 2006 hazard assessment conducted of the Searcy Center (Searcy Hazard Assessment) which Respondent considers “virtually identical” in operation and size to the NB DC) is a “Global Hazard Assessment” that also applied to the NB DC. (Resp’t Br. at 7, 11; Ex. R-1). Because of the similarities between the facilities, and because the Commission and Secretary recognize that 29 C.F.R. 1910.132(d)(1) is a performance-oriented standard, Respondent argues that its Searcy Hazard Assessment satisfies its hazard assessment obligation with regard to the NB DC. (Resp’t Post-Hr’g Br. at 9-10, 13-14; Ex. R-1). Respondent argues that the standard “confers discretion to employers on how to achieve the objective of the standard: identifying hazards that necessitate the selection and implementation of appropriate PPE to ensure the safety of employees”. (Resp’t Post-Hr’g Br. at 10). Respondent also argues that the “Secretary’s disagreement with the results . . . is not a basis for finding that no assessment was conducted”. (Resp’t Post-Hr’g Br. at 11). Finally, Respondent argues that a Department of Labor interpretation letter, as well as a Michigan case that interpreted a similar state plan provision and upheld a global hazard assessment application, support its position. (Resp’t Post-Hr’g Br. at 14-15).
The Secretary argues that Respondent’s Searcy Hazard Assessment is not a hazard assessment of the NB DC because the term ‘workplace’ within section 132(d)(1) means an assessment must be done for each specific work site location at which Respondent has exposed employees. (Sec’y Post-Hr’g Br. at 9). Noting the language of the applicable preamble, the Secretary continues that “[s]uch interpretation is reasonable [and] consistent with the terms and purposes of the cited regulation.” (Id). The Secretary argues that Respondent’s position is suspect given the absence of a required certification document that an assessment of NB DC was in fact performed.
The intent of the Secretary, as set out in the relevant preamble, can be considered in interpreting and determining the appropriate enforcement of a performance-oriented standard. See Am. Cyanamid Co., 15 BNA OSHC 1497, 1500-1502 (No. 86-681, 1992) (relying on the reasonable intent of the Secretary to determine the appropriate enforcement of a performance-oriented requirement in the Hazard Communication Standard as that intent was explained in preamble), rev’d on other grounds, 5 F.3d 140 (6th Cir. 1993). Moreover, the Commission stated that it “will defer to the reasonable intent of the Secretary in promulgating the standard, as that intent is authoritatively explained in the standard’s Preamble.” Id. at 1502. Cf., Martin v. OSHRC (CF & I), 499 U.S. 144, 158 (1991) (holding the Commission should defer to the Secretary’s reasonable interpretation of ambiguous standards).
The court finds that the Personal Protective Equipment for General Industry preamble (Preamble) supports the Secretary’s argument that the benchmark of any hazard assessment for a workplace must be its consideration of the hazards at the particular workplace. It states that:
OSHA believes that a hazard assessment is an important element of a PPE program because it produces the information needed to select the appropriate PPE for the hazards present or likely to be present at particular workplaces. The Agency believes that the employer will be capable of determining and evaluating the hazards of a particular workplace.
59 Fed. Reg. 16334, 16336 (April 6, 1994) (emphasis added).
Indeed, the Non-mandatory Appendix A to the standard - that is also referenced in the Preamble as “providing an example of procedures that satisfy the hazard assessment requirement” - suggests a similar focus by its reference to “a walk-through of the area in question.” See generally Article II Gun Shop, Inc., d/b/a Gun World, 16 BNA OSHC 2035, 2039 n. 12 (Nos. 91-2146, 1994 (consolidated) (noting that statements made in a non-mandatory appendix to a standard may be used to clarify the intent of that standard). Finally, the Secretary’s emphasis on an assessment of each workplace first and foremost under this standard finds support in a change in the wording of the proposed standard - “for the sake of clarity” - from a more generic “assessment of the workplace hazards” to the finally adopted wording that requires the employer to “assess the workplace . . . .” See 59 Fed. Reg. 16334, 16336; 54 Fed. Reg. 33832, 33842 (August 16, 1989). Moreover, the Secretary’s construction furthers the policy underlying the Act. See generally Brennan, 513 F.2d 1032, 138 (2d Cir. 1975) (noting that “[i]t was the intention of Congress to encourage reduction of safety hazards to employees at their places of employment”)(emphasis added).
The record establishes that in 2004 and 2008, OSHA audited the Searcy, Arkansas Center. (Vol. I, Tr. 121; Vol. II, Tr. 47, 51-54; Exs. R-8, R-9). It is also undisputed that in May 2008, OSHA granted the Searcy Center Voluntary Protection Program (VPP) status – an award that both parties agree is site specific and was based on an inspection of the Searcy facility by OSHA. (Vol. I, Tr. 123; Vol. II, Tr. 45, 109-110). However, while the record suggests that a hazard assessment of the Searcy Center was conducted prior to the February 20, 2008 inspection, it equally establishes that a hazard assessment of the NB DC was not. (Vol. II, Tr. 50-51; Exs. R-1, R-8).
Trusty admitted that he had no involvement with the Searcy Hazard Assessment because it was “in place prior to [his] tenure” in his division. (Vol. II, Tr. 35, 38). As such, his testimony primarily focused on what his team currently considers in assessing hazards, as opposed to whether the Respondent specifically considered the NB DC during the Searcy Hazard Assessment. (Vol. II, Tr. 38, 90-92). Indeed, Trusty was unable to identify who in fact conducted that assessment or describe with any specificity how it was conducted. (Vol. II, Tr. 38, 88, 90). In addition, General Manager Damarodas specifically testified that he never conducted a hazard assessment of the NB DC, and that prior to the inspection resulting in the issuance of the Citation in this case, he had not met with anyone from corporate about conducting one. (Vol. I, Tr. 191). Trusty’s testimony confirmed the general manager’s lack of involvement in any hazard assessments. (Vol. II, Tr. 78). Similarly, Trusty specifically testified that the NB DC Asset Protection Manager Lindley – the only individual at the NB DC qualified to perform a hazard assessment - had no involvement with the Searcy Hazard Assessment. (Vol. I, Tr. 216; Vol. II, Tr. 78, 80). Finally, Trusty admitted that prior to the 2008 inspection, he had neither communicated with Lindley about any NB DC hazard assessment issues nor had he ever visited the NB DC. (Vol. II, Tr. 79-78).
Trusty maintains that Wal Mart’s “cookie cutter” approach to constructing and operating Centers obviated any need to assess the particular order filling function at the NB DC. (Vol. II, Tr. 78). Our footprint as a building. . . is substantially similar. . . .
And so an order filling module is an order filling module, whether you’re in New Braunfels, Texas, Searcy, Arkansas, Bentonville, Arkansas, Lewiston, Maine.
(Tr. Vol. II 35). (emphasis added).
The court finds, however, that this corporate approach - which by its own terms simply assumed a uniformity of workplace and thus hazards with Searcy - belies Respondent’s claim that the Searcy Hazard Assessment was also a hazard assessment of the NB DC under this standard. The flaw in this approach is apparent from Trusty’s admission that conditions at other distribution centers differ from those at Searcy. (Vol. II, Tr. 93-94). It is an assessment of work conditions that is the focus of the standard; not whether the physical layout of one facility is similar to the layout of another facility. In this case, Trusty has never been to the NB DC. Trusty is not familiar with the plant’s layout except by viewing it on paper. Trusty is not familiar with the machines, equipment and processes of the NB DC. Respondent did not designate anyone to conduct a comparison of different distribution centers, namely the Searcy and NB DC, to determine the appropriateness of applying the Searcy Hazard Assessment to other Centers. These facts distinguish the present case from the Drexel Chemical Co. and United Parcel Svc. v. Bureau of Safety and Regulation cases cited by the Respondent.
Finally, Trusty testified that Exhibit R-1 in and of itself establishes the existence of a NB DC hazard assessment because it “resided” in Wal Mart’s overall safety manual and was posted on the corporate intranet. (Vol. II, Tr. 35, 40, 81; Ex. R-1). The court is not persuaded.
First, Trusty testified that R-1 does not specifically identify or address the NB DC, and that there is no documentation that certifies that R-1 is the hazard assessment for the NB DC or for that matter any other Center pursuant to section 1910.32(d)(2). (Vol. II, Tr. 80, 88). Second, Trusty’s credibility with regard to the significance of R-1 to the NB DC in view of Wal Mart’s delay in providing it to the CSHO must be assessed. Trusty testified that the CSHO caused the delay by failing to reduce the request to writing. (Vol. II, Tr. 36-37). However, Respondent provided other verbally requested documentation to the CSHO prior to the issuance of the Citation. (Vol. II, Tr. 37). Moreover, the CSHO testified that Trusty’s subordinate agreed to send her the documentation. (Vol. I, Tr. 76-77). At best, Trusty’s testimony regarding the delay instead raises a reasonable inference that Respondent’s hesitation reflected its realization that no NB DC hazard assessment had in fact been performed and for that reason is Trusty’s testimony is not credible on this fact See generally A. G. Mazzocchi, Inc., 22 BNA OSHC 1377, 1387 (No. 98-1696, 2008) (relying on motive, conflicting testimony, and the failure to provide certain documentation to the compliance officer, to establish an inference relative to the respondent’s failure to provide OSHA with a report); 1 Clifford S. Fishman, Jones on Evidence §§ 1.5, 4.2 (7th ed. 1972) (drawing reasonable inferences from circumstantial evidence).
Based upon the findings set forth, the court finds that the Secretary: (i) has established that employees engaged in order filling at NB DC were exposed to actual and potential hazards as a result of Respondent’s failure to conduct a hazard assessment, and (ii) that Respondent knew or could have known of the violative condition in view of its knowledge that its employees were exposed to hazards resulting from the failure to perform a hazard assessment at the NB DC. (Exs. C-11, C-13, C-15). The Secretary has established a violation of § 1910.132(d)(1). The weight of the evidence shows that Respondent’s cookie cutter “hazard assessment” was not merely deficient – it was instead a “failure to evaluate” the NB DC. (Exs. C-11, C-13, C-15).
The Commission found the former Section 1910.133(a)(1) to be “broadly-worded.” See Atlantic Battery Co., Inc., 16 BNA OSHC 2131, 2153 (No. 90-1746, 1994). Because of the similarities between that standard and the current Section 1910.133(a), the court finds the current section to be “broadly-worded.” Under Commission precedent, the Secretary typically demonstrates the violation of a broadly-worded standard by showing that a reasonable person familiar with the situation would recognize a hazardous condition requiring the use of protective measures. See Farrens Tree Surgeons, Inc., 15 BNA OSHC 1793 (No. 90-998, 1992). However, in the Fifth Circuit, where this case arises, the Court has held that “[i]f the language of the regulation is not specific enough . . . other sources may provide constructive notice: industry custom and practice; the injury rate for that particular type of . . . work; the obviousness of the hazard; and the interpretations of the regulation by the Commission.” Corbesco Inc., 926 F.2d at 427 [14 BNA OSHC at 2119].
Because the foot and hand protection standards are also similar to the former Section 1910.133(a)(1), the court finds these sections to be broadly worded as well. Moreover, that interpretation may even be stronger as it relates to foot protection because the standard only requires protective foot equipment “where there is a danger of foot injuries.” Compare Weirton Steel Corp., 20 BNA OSHC at 1259 (citing case law that requires the Secretary to prove significant risk under standard requiring protective equipment “where danger exists.” In conclusion, a violation of the PPE standards will only be found where industry custom and injury rate, among other factors, provide the employer with either constructive or actual knowledge of the hazard.
Citation 1, Item 1b: 29 C.F.R. § 1910.133(a)(1) (Eye and Face Protection)
Under Citation 1, Item 1b, the Secretary alleges Respondent violated 29 C.F.R. § 1910.133(a)(1) because “[i]n the warehouse, personal protective equipment for the eyes and/or face was not required for employees who were exposed to the hazards of eye injuries from dust, wood chips and spilled solids while pulling boxed merchandise from pallets stacked overhead and from debris such as wood chips and nails from damaged pallets falling through floor openings . . . .” The cited provision states that “[t]he employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.” The Secretary argues that she established the violation of this standard in view of photographs, testimony and OSHA recordkeeping records indicating employee exposure to eye and face hazards with no corresponding PPE use requirement by management. (Sec’y Post-Hr’g Br. at 13-15).
Respondent argues that it did not violate the standard because eye injuries were “infrequent and incidental” and do not “rise to the level of a substantial probability of serious harm.” (Resp’t Post-Hr’g Br. at 17-18).
Applicability and Exposure
The Respondent does not dispute that the standard applies. (Resp’t Post-Hr’g Br. at 17). Moreover, by its terms, § 1910.133(a)(1) applies when an employee is “exposed to eye or face hazards from flying particles.” Here, the CSHO testified that, during her inspection, she determined that wood chips from damaged pallets were falling through the upper level metal floor grating onto the underlying walkways where order fillers work. (Vol. I, Tr. 94; Ex. C-8). She also observed wood pieces fall off the pallets themselves as they slid forward in the module towards the face and head of the order fillers. (Vol. I, Tr. 93-94; Ex. C-3). Finally, the CSHO testified that she interviewed employees who indicated that dust and other debris, including poison ant granules in one instance, were falling from the top of pallets stacked above eye level. (Vol. I., Tr. 76, 98, 138). Indeed, Trusty and order filler DeLeon, in their testimony, confirmed that order fillers encounter these conditions daily. (Vol. I, Tr. 52-53; 57-59; Vol. II, Tr. 71-73, 98-99). Moreover, OSHA’s Form 300s as well as Respondent’s own Exhibit R-7, confirm exposures beginning in 2006. (Vol. I, Tr. 80-82; Exs. C-11, C-13, R-7). It is undisputed that protective eye wear was not required. (Vol. I, Tr. 98).
Knowledge and Noncompliance
Citing its low eye injury rate and a non-binding administrative law judge decision, the Respondent argues that the Secretary did not establish its noncompliance because it lacked both actual and constructive knowledge of a hazard necessitating the use of eye or face PPE. See Koch Eng’r Co., Inc., 12 BNA OSHC 1081 (No. 83-0611, 1984) (ALJ); (Resp’t Post-Hr’g Br. at 17-18). Specifically, it relies upon its analysis of OSHA’s Form 300 records for the NB DC between 2006 through 2008 to establish what it terms its “insubstantial” eye injury rate of .32 percent. (Resp’t Post-Hr’g Br. at 17; Ex. R-7). Moreover, it argues that only one of those injuries involved order-filling. (Resp’t Post-Hr’g Br. at 18). Finally, it also argues that, in any event, PPE would not have prevented these injuries. The Secretary maintains that because objective facts show the presence of a hazard, the “[i]nfrequency of injury may, at best, be considered in conjunction with the probability of a hazard causing an accident in penalty calculations.” ( Sec’y Br. at 24-26). Regardless of which test is more appropriate, (i.e. specific v. broadly worded) the Secretary has established the knowledge necessary for a violation of the eye and face PPE standard.
Turning first to industry custom, the CSHO, who had twenty years of experience, testified that she has conducted approximately 400 OSHA inspections involving PPE. Based on her experience, she testified that “employers h[ad] a blanket policy of [requiring] safety-glasses when you enter” warehouses and other facilities with conditions similar to the NB DC. (Vol. I, Tr. 147). See generally ConAgra Flour Milling Co., 16 BNA 1137, 1142 (No. 88-1250, 1993) (noting the need to show the equipment is in use throughout the relevant industry in similar circumstances to establish a violation).
As to the number of eye injuries, the Fifth Circuit has stated that while “the Act does not establish as a sine qua non any specific injury rate, a very low injury rate has a definite bearing on the question whether an employer has notice that personal protective equipment is necessary under a general regulation . . . .” Owen-Corning Fiberglass Corp., 659 F.2d 1285, 1290 10 BNA OSHC 1070, 1074 (5th Cir. 1981); See generally General Motors Corp., 11 OSHC 2062, 2065-2066 (Nos. 78-1443, 1984) (consolidated) (finding no actual knowledge warranting protective shoes in light of low injury rate), aff’d, 764 F.2d. 32 (1st Cir., 1985) (finding Secretary failed to establish that employer had actual knowledge of hazards which required the use of safety shoes in the absence of a “significant level of risk”). However, in evaluating PPE standards, the Commission has also noted that “[a]s the severity of the potential harm increases in a particular situation, its apparent likelihood of occurrence need not be as great.” Weirton Steel Corp., 20 BNA OSHC 1255, 1259 (No. 98-0701, 2003) (finding the severity of potential hazard weighed in favor of finding a hazard requiring the use of respirators under 29 C.F.R. § 1910.134(a)); Anoplate Corp., 12 BNA OSHC 1678, 1682 (No. 80-4109, 1986) (finding that splashing of chemical was a hazard that required protective eyewear, notwithstanding records indicating low number of relevant injuries). Compare Owens-Corning Fiberglass Corp., 659 F.2d at 1290 (noting that a “substantial risk of a less serious harm” supports a finding of noncompliance under the Act).
The record establishes actual eye injuries, albeit low in number. The CSHO described conditions which were likely to cause injuries that could result in lost time from work, restricted work activity, medical treatment, hospital care and possible permanent eye injury. (Vol. I, Tr. 97, 98 and 99). Moreover, Damorados agreed that if splintered wood chips from pallets or similar objects fell to the eye that it could result in a serious injury. (Vol. I, Tr. 199). In addition, the daily practice of hooking stacks of pallets filled with the broad variety of household products sold by Wal Mart, and pulling them toward the employee’s face and head area on the higher shelves, presents a repeated risk of any number of spilled or partially open product contacting the employee’s eyes and face. Indeed, the Commission has noted “the considerable vulnerability of the eye.” See Vanco Constr., Inc., 11 BNA OSHC 1058, 1060 (No. 7-4945, 1982). Given these facts, the Secretary has established a violation of section 1910.133(a)(1) based on Respondent’s failure to ensure that employees in the order-filling areas of the warehouse used eye protection while exposed to flying particles, spills and debris.
Citation 1, Item 1c: 29 C.F.R. § 1910.136(a) (Foot Protection)
Under Citation 1, Item 1c, the Secretary alleges Respondent violated 29 C.F.R. § 1910.136(a) because “[i]n the warehouse . . . employees were wearing tennis shoes in lieu of protective footwear . . . while manually handling heavy items such as boxed merchandise, furniture and wood pallets, including stacking and kicking up damaged pallets with exposed nails, exposing employees to the hazards of contusions and fractures from dropped items on feet, and lacerations and puncture wounds from nails and splintered wood.” The cited provision states, as relevant, that “[t]he employer shall ensure that each affected employee uses protective footwear when working in areas where there is a danger of foot injuries due to falling or rolling objects, or objects piercing the sole . . . .” The Secretary argues that she established this violation in view of testimony and other evidence (such as OSHA logs and incident report forms) indicating actual foot injuries and employee exposure to foot hazards from damaged and heavy pallets and merchandise – with no corresponding PPE use requirement. (Sec’y Post-Hr’g Br. at 17-18; Exs. C-11, C-15, C-16).
Respondent argues that the record fails to demonstrate a substantial probability of injury to order fillers at the NB DC. (Resp’t Post-Hr’g Br. at 19).
Applicability and Exposure
The Respondent does not dispute that the standard applies. (Resp’t Post Hr’g Br. at 19). Moreover, the CSHO testified that OSHA Forms 300 and 301 reflect order filler foot injuries between 2006 and 2008. (Vol. I, Tr. 102-103; Exs. C-11, C-13, C-16). Trusty’s testimony, as well as Respondent’s own exhibit, confirmed at least two injuries. (Vol. II, Tr. 70, 73, Ex. R-7) In addition, Damarodas testified that he was personally aware of a foot injury sustained by an order filler kicking up a pallet. (Vol. I, Tr. 195-196). Finally, Trusty also acknowledged a possibility of foot injuries from nails and falling objects. (Vol. II., Tr. 99). Both Damarodas and Trusty, as well as an NB DC order filler, acknowledged that protective footwear was not required for order fillers. (Vol. I, Tr. 49, 186; Vol. II, Tr. 99).
Knowledge and Noncompliance
Citing its low foot injury rate of .43 percent between 2006 through 2008 and a Fifth Circuit decision, the Respondent raises its prior PPE argument - that the Secretary failed to establish its noncompliance because it lacked both actual and constructive knowledge of any hazard necessitating the use of protective footwear. See Cotter & Co., v. OSHRC, 598 F2d 911 (5th Cir. 1979). (Resp’t Post-Hr’g Br. at 19). The Secretary argues that the Respondent had actual knowledge of the exposed employees through its supervisory employee Damarodas, as well as Trusty. In particular, she notes that Damarodas reviewed and signed OSHA’s annual Summaries of Work Related Injuries and Illnesses. (Sec’y Post-Hr’g Br. at 19; Exs. C-12, C-14).
As to industry custom regarding the use of protective footwear in warehouse facilities that use wood pallets, the evidence was, at best, inconclusive. The CSHO testified that she “normally” saw foot protection during inspections of similar facilities and could not recall whether she also observed employees without it. (Vol. I. Tr. 146-147). Trusty only had limited knowledge regarding industry custom on this issue. (Tr. Vol. II 127-128).
But more persuasive here – in view of the low rate of foot injuries - is the lack of evidence indicating severe harm from NB DC working conditions. Likewise, the evidence indicated that the most likely possible injury of the laceration of the foot would likely require limited, if any, medical treatment and would not result in a function of the body being substantially impaired. The evidence indicates that any foot injury did not have a substantial and significant effect on the employee’s ability to perform normal activities or return to work. (Vol. I, Tr. 102-104, 195-196; Vol. II, Tr. 73; Exs. C-11, C-15, C-16). For example, according to Damarodas and Trusty, the employee in case number C-8204825 - that the CSHO specifically discussed during the trial and involved a splinter in the right foot – only required a tetanus shot with no time off. (Vol. I, Tr. 103-104, 196 ; Vol. II, Tr. 73; Exs. C-15, C-16).
Under these facts the Secretary has failed to meet her burden of proof with respect to knowledge of the foot hazard. Thus, Item 1c of Citation 1 is VACATED.
Citation 1, Item 1d: 29 C.F.R. § 1910.138(a) (Hand Protection)
Under Citation 1, Item 1d, the Secretary alleges Respondent violated 29 C.F.R. § 1910.138(a) because “[i]n the warehouse, personal protective equipment for the hands was not provided for, and used by, employees who were manually handling pallets, including stacking damaged pallets with exposed nails and splintered wood, and manually pushing pallets back against inclined rollers in modules, exposing employees to the hazards of lacerations and puncture wounds to the hands.” The cited provision states, as relevant, that “[e]mployers shall select and require employees to use appropriate hand protection when employees are exposed to hazards such as those from . . . severe cuts or lacerations; severe abrasions; punctures . . . .” The Secretary argues that testimony and other evidence indicating actual and potential order filler hand injuries from wooden pallets that were splintered and had exposed nails, with no corresponding glove requirement and limited glove availability, establish this violation. (Sec’y Br. at 20-21). Moreover, the Secretary notes that Damarodas’ testimony minimized the potential effect of the use of gloves on production. (Sec’y Post-Hr’g Br. at 21).
Respondent reiterates its argument that the record fails to demonstrate a substantial probability of hand injuries to order fillers at the NB DC. (Resp’t Post-Hr’g Br. at 20). Respondent also argues that the use of gloves would “substantially limit associates’ productivity and ability to perform job tasks.” (Resp’t Post-Hr’g Br. at 21).
Applicability and Exposure
The Respondent does not dispute that the standard applies. (Resp’t Post-Hr’g Br. at 20). As to exposure, the CSHO testified that she observed numerous pallets with splintered wood and nails that order fillers had to handle in order to perform their jobs. (Vol. I, Tr. 92, 105; Ex. C-3). The CSHO testified that from talking with employees and reviewing the OSHA logs, she learned of actual hand injuries, including one that required surgery. (Vol. I, Tr. 106) Indeed, both Damarodas and Trusty, as well as an order filler, each acknowledged that splinters and nails posed risks to the hands of order fillers. (Vol. I, Tr. 47, 189; Vol. II, Tr. 99).
Knowledge and Noncompliance
Citing its low hand injury rate of .32 percent between 2006 through 2008 and, here, the aforementioned administrative law judge decision, the Respondent largely reiterates its prior PPE argument - that the Secretary failed to establish noncompliance because it lacked both actual and constructive knowledge of any hazard necessitating the use of hand protection. See Koch Eng’r Co., Inc., 12 BNA OSHC 1081 (No. 83-0611, 1984) (ALJ); (Resp’t Br. at 21). Moreover, it argues that only one out of the six hand injuries reflected in that roll-up related to the order-filling function at issue here. ( Resp’t Post-Hr’g Br. 20; Vol. II, Tr. 71, 77; Ex. C-20).
The court concludes that the Secretary failed to establish industry custom requiring the use of hand protection in warehouse facilities that use wood pallets. The CSHO specifically testified that she “remember[s] inspecting facilities where there [were] wooden pallets where there was no hand protection.” (Vol. I, Tr. 146). Moreover, the record indicates that relevant order filler hand injuries were not only few in number, but also of lesser severity. Indeed, the Secretary’s own witness, order filler DeLeon, testified that during his nine years at NB DC he’d “gotten a few stickers, but not very many.” (Vol. I, Tr. 47). Mr. DeLeon continued that he had “never heard of anything major happening.”
Under these facts the Secretary has failed to meet her burden of proof with respect to knowledge of a hand hazard requiring personal protective equipment. Thus, Item 1d of Citation 1 is VACATED.
The record establishes the seriousness of Citation 1, Item 1(a) and Citation 1, Item 1 (b) Respondent’s failure to conduct a hazard assessment exposed order fillers to the daily possibility of serious eye injuries in the order filler function of NB DC.
In calculating the appropriate penalty for a violation, Section 17(j) of the Act requires the Commission to give “due consideration” to four criteria: (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s prior history of violations. OSH Act § 17(j), 29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by “the number of employees exposed, the duration of the exposure, the precautions taken against the injury, and the likelihood that any injury would result.” See J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).
The Secretary proposed a total penalty of $1,700.00 for the four grouped items. In calculating the proposed penalty, the CSHO testified that the initial gravity-based penalty was $2,000.00 – an amount that reflected a lesser probability of an accident and the fact that any injuries would be of medium severity. (Vol. I, Tr. 107-108). The CSHO then testified that she reduced the original penalty by fifteen percent based upon the Respondent’s safety and health program. No evidence was introduced regarding Respondent’s history of prior violations. The court notes Respondent did not address or otherwise object to the penalty either during the hearing or in its post-hearing brief.
The record indicates that the Respondent’s failure to conduct a hazard assessment exposed order fillers to serious eye injuries. Yet, while the evidence indicates that the duration of exposure extended at least from 2006 and the number of employees exposed was high (twenty order-fillers per shift), the low injury rate suggests a low probability of injury. (Vol. I, Tr. 96, 171). Given the totality of these circumstances the court assesses a penalty of $1,700.00 for the violations of 29 C.F.R. § 1910.132(d)(1) and 29 C.F.R. § 1910.133(a)(1).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1(a) is AFFIRMED as a serious violation.
2. Citation 1, Item 1(b) is AFFIRMED as a serious violation.
3. Citation 1, Item 1(c) is VACATED.
4. Citation 1, Item 1(d) is VACATED.
5. For the Serious Violations of Citation 1, Item 1(a) and Citation 1, Item 1(b) the court assesses a penalty of $1,700.00.
Patrick B. Augustine
Dated: December 4, 2009