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

Appearances:

  Dolores Wolfe, Esq. and Traci Martin, Esq.

  Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

  For Complainant

Charles Booth, Esq., USPS, Dallas, Texas and Trevor Neuroth, Esq., USPS, Washington, D.C.

For Respondent

Shawn Boyd

For NALC

BEFORE: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

I. INTRODUCTION

  On June 13, 2016, a letter carrier for the United States Postal Service began to feel ill as he delivered mail on a route in San Antonio, Texas. He called a supervisor at Beacon Hill Station, the postal facility to which he was assigned, and told him he was too sick to continue his route. The supervisor instructed him to call 911, which the carrier did. Emergency medical technicians responded to his call and provided medical treatment. Beacon Hill Station supervisors also arrived at the site. The emergency medical technicians left, and a supervisor drove the employee back to the post office. The carrier completed paperwork related to the incident and left for the day. Later that evening, he went to an urgent care center, where he was treated with IV fluids and medication for his headache.

  Two days later, on June 15, 2016, a city letter carrier for Beacon Hill Station began to feel ill as she delivered mail on her regular route. She called a supervisor who told her to call 911. Emergency medical technicians responded to her call, provided medical treatment, and transported her to a hospital. The hospital administered IV fluids to the carrier and discharged her later that day.

  Beacon Hill Station notified the Occupational Safety and Health Administration of the two incidents. OSHA opened an inspection at Beacon Hill Station on June 16, 2016. As a result of the inspection, the Secretary issued a two-item Citation and Notification of Penalty to the United States Postal Service (referred to in this proceeding as the Postal Service or USPS) on September 7, 2016. Item 1 of the Citation alleges a repeat violation of § 5(a)(1), the general duty clause (29 U.S.C. § 654(a)(1)), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§651-678 (Act).1 The Secretary withdrew Item 2 of the Citation at the national hearing (National Hearing (NH) Tr. 1453-55).2

  Item 1 alleges two instances where the Postal Service exposed its employees “to the hazard of excessive heat while walking and hand-delivering mail in an outdoor environment.” The Secretary proposes a penalty of $124,709 for the alleged violation and seeks enterprise-wide implementation of specified abatement measures.

  This case is one of five pending before the Court in which the Secretary alleges the Postal Service exposed its employees to excessive heat or high heat levels as they delivered the mail. The National Association of Letter Carriers (NALC) and the National Rural Letter Carriers’ Association (NRLCA), authorized employee representatives, elected party status in the proceedings. They did not present evidence, examine witnesses, or submit post-hearing briefs in this proceeding (Tr. 12-13). The five cases were consolidated early in the proceedings for settlement purposes, but the parties were unable to resolve the issues. On January 26, 2018, Judge Heather Joys, the settlement judge, severed the cases for hearing, and they were reassigned to the Court, who heard the five cases sequentially in October and November of 2018.3

  The parties agreed the Court would hold a separate hearing (referred to as the national hearing) to present expert witnesses and witnesses addressing issues common to the five cases. The Court held the 12-day national hearing in Washington, D.C., from February 25 to March 12, 2019. The testimony and exhibits in the national hearing are part of the records in the five cases, unless otherwise noted. The records of the individual cases were not admitted in the other actions, unless noted.4

  This is the second of the five Postal Service cases heard by the Court. The hearing was held from October 22 to October 24, 2018, in San Antonio, Texas.5 The parties submitted briefs for all five cases on September 17, 2019. For the reasons that follow, the Court finds the Secretary did not establish a condition or activity in the workplace presented an excessive heat hazard to San Antonio’s carriers on June 13 and 15, 2016. The Court also finds the Secretary failed to show an economically feasible means existed to materially reduce the alleged hazard of excessive heat. The Citation is vacated.

II. JURISDICTION AND COVERAGE

  The Postal Service timely contested the Citation on September 30, 2016. The parties stipulate the Commission has jurisdiction over this action, and the Postal Service is a covered employer under the Act (Exh. J-1, ¶¶ 1-2; Tr. 28).6 Based on the stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act, and the Postal Service is a covered employer under § 3(5) of the Act.

III. EXECUTIVE ORDER NO. 13892

  The parties filed post-hearing briefs on September 17, 2019, in the five Postal Service cases. On October 15, 2019, President Trump issued Executive Order No. 13892, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, 84 Fed. Reg. 55239 (October 15, 2019) (E.O. 13892). Section 4 of E.O. 13892 provides:

Sec. 4. Fairness and Notice in Administrative Enforcement Actions and Adjudications. When an agency takes an administrative enforcement action, engages in adjudication, or otherwise makes a determination that has legal consequence for a person, it may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise. An agency must avoid unfair surprise not only when it imposes penalties but also whenever it adjudges past conduct to have violated the law.

  On November 6, 2019, the Postal Service submitted a letter to the Court with a copy of E.O. 13892 attached “as supplemental authority.” The Postal Service states:

[E.O. 13892] is relevant to two primary arguments in the Postal Service’s Post-Trial Briefs:

  1. The Commission has already recognized that defining a hazard as “excessive heat,” which the Secretary has done in this case, falls far short of due process. [E.O. 13892] makes it clear that OSHA is required to afford regulated parties safeguards “above and beyond” those required for due process. Vaguely defining a hazard as “excessive heat” does not meet [E.O. 13892’s] requirements.

  2. [E.O. 13892] makes it clear that OSHA’s reliance on its heat chart and other guidance documents as the basis for establishing a heat hazard is impermissible. While agency guidance documents can be useful in enhancing the regulated community’s understanding of a regulation, they are not intended to form the basis of a violation. Guidance documents do not have the benefit of undergoing notice and comment rulemaking, and thus do not provide the regulated community with fair notice.

(Letter, p. 2) (footnotes omitted)

  The Secretary filed a response on December 4, 2019, stating the terms of E.O. 13892 do not create rights enforceable against the Secretary, and due process concerns are not implicated where the Postal Service has recognized or should have recognized the excessive heat hazard at issue. The Secretary notes the Postal Service has suffered no unfair surprise as that term is used in the Order.

  By order dated January 30, 2020, the Court accepted the Letter and attached copy of E.O. 13892 as supplemental authority in this proceeding in accordance with FRCP 15(d), which provides:

(d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

  Having considered the parties’ arguments, the Court finds that in citing the Postal Service for a violation of § 5(a)(1) for excessive heat exposure, the Secretary did not overstep the terms of E.O. 13892. Section 11(c) of E.O. 13892 states, “This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” Section 11(c) of E.O. 13892 bars review in adjudicative proceedings of an agency’s compliance with E.O. 13892.

  Furthermore, § 9(c) of the Act grants the Secretary the authority to cite employers for violations of § 5(a)(1). 29 U.S.C. § 658(a). Section 11(a)(i) of E.O. 13892 provides, “Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof.” E.O. 13892 cannot be used to restrict the Secretary’s congressional authority to implement § 5(a)(1).

  Finally, E.O. 13892 states agencies “may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise.” Section 5(a)(1) requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). Hazards are recognized within the meaning of § 5(a)(1) if they are known to the cited employer or would be known to a reasonably prudent employer in the industry. SeaWorld of Fla., LLC v. Perez, 748 F.3d 1216 (D.C. Cir. 2014). The Secretary previously cited the Postal Service for the willful exposure of carriers to excessive heat hazards, and a Commission judge affirmed the violation. The decision and order became a final order of the Commission. United States Postal Service, No. 13-0217, 2014 WL 5528391 (OSHRC Oct. 24, 2014). The Postal Service cannot claim plausibly it was unfairly surprised by subsequent citations for repeat violations alleging exposure of carriers to excessive heat hazards.

IV. THE SAN ANTONIO HEARING

Stipulations

  The parties stipulate the following:7

  . . .

3. [The Postal Service] is divided into seven Areas which are in turn divided into Districts.

4. The seven areas are: Northeast Area; Eastern Area; Western Area; Pacific Area; Southern Area; Great Lakes and Capitol Metro.

5. This hearing involves operations at a postal facility at 1064 Vance Jackson Road, San Antonio, Texas (Beacon Hill Station) which is located in the Southern Area.

6. On June 13, 2016, the total number of letter carriers who were employed by the Beacon Hill postal facility was 45 city carriers, 17 city carrier assistants and 0 rural carriers.

7. On June 13, 2016, there was a total of approximately 54 city routes.

8. CCA1’s enter on duty date for the Postal Service was May 14, 2016.8

9. On June 13, 2016, CCA1 was assigned to Route 1013.

10. On June 13, 2016, the total weight of the mail that CCA1 was supposed to deliver was 152.94 pounds.

11. On June 13, 2016, the total number of pieces that CCA1 was supposed to deliver was 2,046.

12. On June 15, letter carrier LC2 was an employee of [the Postal Service] who worked at the Beacon Hill facility delivering mail.

13. LC2 transferred from Ohio to the Beacon Hill Station where she worked as a city carrier beginning in January 2015.

14. She continued working as a City Carrier at the Beacon Hill Station until May 2017, when she transferred to the Mockingbird Station in Austin, Texas.

15. LC2 has an assigned route which was route 1030 (Route 30).

16. On June 15, 2016, LC2’s total weight of the mail that LC2 was supposed to deliver was 122.57 pounds.

17. On June 15, 2016, the total number of pieces of mail that LC2 was supposed to deliver was 1,923.

(Exh. J-1)

Background

Overview of the Beacon Hill Station

  In June of 2016, the Beacon Hill Station in San Antonio, Texas, employed 45 city letter carriers and 17 city carrier assistants (CCAs) to deliver mail on 54 city routes.9 CCAs are contract carriers who receive different compensation and benefits from city carriers. The collective bargaining agreement (CBA) negotiated by NALC and the Postal Service guarantees minimums of 8 hours daily for city carriers and 4 hours daily for CCAs. City carriers deliver mail on their regular routes. The post office assigns CCAs to different routes on a weekly basis, depending on mail volume and which city carriers are absent due to scheduled time off or illness (Exh. J-1, ¶¶ 6-7; Tr. 58-59, 598, 603-05).

  If a city carrier comes in under 8 hours, the post office gives them undertime and assigns a piece of another route, called a kickoff. In postal nomenclature, a kickoff or pivot is the portion of a route assigned to a carrier in addition to his or her regular route.10 Kickoffs include auxiliary routes as well as regular routes whose assigned city carriers are not working that day (Tr. 154-55, 601).

  City carriers are guaranteed 40 hours of work per week by the CBA but may volunteer for the work assignment list, meaning they are willing to work overtime during their regularly scheduled days on their own routes. They can also volunteer for the overtime-desired list, indicating their willingness to deliver on other routes and to work on their scheduled days off (Tr. 154-55, 330, 601). If the post office has exhausted all resources and no overtime carriers are available, supervisors may assign, or mandate, overtime to city carriers who are not on the work assignment or overtime lists (Tr. 155-56).

  Trucks hauling the day’s mail for Beacon Hill Station arrive at the facility at midnight, 3:00 or 3:30 a.m., and 5:00 or 5:30 a.m. (Tr. 781). The incoming mail comprises different classes (Priority Mail Express, Priority Mail, First-Class Mail, periodicals, etc.) with different delivery schedules. The delivery schedule is determined by the delivery time to which the Postal Service has committed. If the post office does not meet the delivery schedule for Priority Mail Express, it refunds the service fee to the customer (Tr. 777-80).

  The Beacon Hill Station staffs a morning (A.M.) supervisor, who works from 5:00 a.m. to 2:00 p.m., and an afternoon (P.M.) supervisor, who works from 11:00 a.m. to 7:00 p.m. They supervise carriers only. A different supervisor has authority over the clerks, who unload and sort the mail (Tr.595-96, 739). City carriers start work at 7:00 a.m., by which time clerks are expected to have processed 80 percent of the incoming mail (Tr. 782). The goal of the A.M. supervisor is to have city carriers on the street delivering mail by 8:00 or 8:15 a.m. (Tr. 597).

  During the day, carriers collect mail on their routes which must be brought back to the post office before the dispatch truck leaves at 6:30 p.m. for the Postal Service’s processing and distribution center. If carriers do not bring the collected mail to the post office in time for dispatch, a Postal Service employee must drive to the processing and distribution center to deliver the late mail (Tr. 778).

  In the spring and summer of 2016, Beacon Hill Station supervisors gave a number of standup safety talks focused on delivering mail in hot weather conditions as part of the Postal Service’s Southern Area Heat Stress Campaign (Exh. C-3; Tr. 413). The campaign stressed the importance of proper hydration, weather-appropriate clothing, taking breaks in shaded areas, and recognizing symptoms of heat stress (Exh. C-3, pp. 29-40) City carriers are contractually entitled to a 30-minute lunch break and two 10-minute breaks (one before and one after lunch) (Tr. 156, 163). In the summer of 2016, the Beacon Hill Station informed carriers they could take comfort breaks as needed to cool off. A comfort break is usually a bathroom break or an opportunity to refill or purchase beverages. The post office does not limit comfort breaks in hot weather (Tr. 363-64).

  If city carriers believe they will not be able to complete the route in 8 hours, they submit a form (Form 3996) requesting more time (overtime) or help (auxiliary assistance) to complete delivery. The carrier estimates on the form how much additional time is needed to complete the route and submits it before leaving the post office in the morning (Tr. 607-610).

CCA1 and the June 13, 2016, Incident

  CCA1 began working for the Postal Service on May 14, 2016, in a CCA position (Exh. J-1, ¶ 8). He received classroom orientation training for a week, followed by 3 days of on-the-job training (Tr. 54-56). CCA1 received his on-the-job training from CT, a Beacon Hill Station city carrier and certified trainer. CT explained his training schedule for CCA1. “On the first day he pretty much just observed. On the second day, we kind of split it. He made some deliveries; I made some deliveries. On the third day, he would come in and case up the route or separate the mail, sort the mail.11 And he would go out there and do the majority of the route.” (Tr. 303-04) The first non-training day on which CCA1 delivered mail was June 3, 2016 (Tr.439). He worked every day from June 3 to June 9, totaling 55 hours of delivery time in his first 7 days. He did not work on June 10, 11, or 12 (Exh. R-13, pp. 1412-16).

  Regular routes are designed with the intention carriers will complete daily mail delivery in 8 hours. The Postal Service configures routes for mounted delivery (for which the carrier delivers mail from the vehicle to the curbside mailbox); dismount delivery (for which the carrier parks and delivers mail to one or two houses at a time and then returns to the vehicle and drives to the next park point (a designated parking spot)); and park and loop delivery (for which the carrier parks the vehicle at a park point and walks down one side of the street, delivering mail to each address, and then crosses to the other side to deliver mail, looping back to the vehicle (Tr. 145-47).

  On Monday, June 13, 2016, CCA1 was assigned Route 13, which is a park and loop route. Delivering mail on that route requires 10 to 12 miles of walking (Exh. J-1, ¶ 9; Tr. 337, 372). Route 13 had ten loops in 2016. CCA1 would need to carry the mail for one loop, then return to his vehicle, drive to the next park point, and carry the mail for next loop. On June 13, CCA1 was to deliver 2,046 pieces of mail, weighing a total of 152.94 pounds. Dividing the weight by the number of loops results in a calculation of approximately 15.3 pounds per loop (Exh. J-1, ¶¶ 10-11; Tr. 631-32) There are approximately 600 addresses on Route 13 (Tr. 347). It is primarily a residential area with flat terrain. Approximately 80 percent of the loop is shaded. There are five business addresses and a school on the route where a carrier could take breaks in air-conditioned buildings (Tr. 372-73). CCA1 was not required to case his mail that morning (Tr. 661).

  CCA1 began work at 8:30 a.m. on June 13, 2016 (Exh. R-13, p. 1416). He was driving an air-conditioned van (Tr. 555-56). CCA1 called Supervisor JL at some point and told him he was falling behind in delivering mail on Route 13 (Tr. 513, 553). He called a second time at approximately 4:00 and informed Supervisor JL he was feeling ill (Tr. 554).12 He had a headache, was sweating profusely, and felt faint and feverish (Tr. 88). Supervisor JL told CCA1 that if he was feeling ill, he should call 911. When asked why he did not call 911 for him, Supervisor JL stated, “I felt that if for any reason he did need medical assistance, that 911 would be better there able to support him or walk him through in case it was an emergency.” (Tr. 514)

  CCA1 called 911. At the hearing, he had only a vague recall of the events of that day. He stated, “The most I remember now, is that after the phone call—I just remember that the San Antonio Fire Department had show[n] up to the scene, had assessed me and that I was driven back to the post office after my assessment by another gentleman who was a supervisor there.” (Tr. 84)

  Supervisor JL and two other supervisors arrived at CCA1’s location (Tr. 555). CCA1 said he had a fever and had been sick over the previous weekend (Tr. 551). Once CCA1 returned to the post office, he completed a form stating he was not seeking Workers’ Compensation for the medical care he received (Tr. 89-90). Later that evening, he went to an urgent care center where, he stated, “I recall receiving IV fluids, as well as—I believe I received medication for my headache.” (Tr. 91)

  CCA1 attributed his illness to the hot weather that day.

Q.: [S]ince you don't remember the date, wouldn't it be fair say that you don't recall the temperature on that day?

CCA1: I don't remember the exact, specific date, but I do remember the temperature, specifically because of the fact that it was because of how hot it was that that's what caused me to have my incident.

Q.: So you don't actually independently remember the date of your injury, and the fact that it was hot, are you just assuming that because you suffered your injury?

CCA1: No, sir. I'm going off of the basis that not only was it during the summer, but that also on top of what I was going through physically during that day, I do recall that the weather was hot because of the illness I suffered as well as when the San Antonio Fire Department showed up even they had told me that it was a pretty hot day.

(Tr. 102-03)

  Despite the heat, CCA1 refrained from using the air conditioning in his van. “I had access to AC but I tried mostly to not take the breaks in the air conditioning to not put my body into shock. . . . When going from extreme heats, just from my knowledge, to very cool temperatures very quickly can actually cause shock.” (Tr. 112)

  CCA1’s medical records indicate he had a predisposing medical condition. Exhibit R-17 is a copy of his medical records related to the June 13 incident, as well as incidents in April and May of 2016. On June 13, 2016, (the day of the incident) the urgent care facility record states, “[Patient] reports Upper Respiratory infection symptoms for 3 days. While working today, he felt feverish and lightheaded but continued working in the heat. He then had a syncopal episode. He recovered in less than a minute but continues to feel somewhat lightheaded.” The “Clinical Impression” is “Acute Dehydration, Acute Cough.”13 (Exh. R-17, p. 1740)

  CCA1 had sought medical attention at the urgent care center on April 19 and May 21, 2016, with symptoms similar to the ones he experienced on June 13. On April 19 (before he was hired by the Postal Service) he reported, “Cough, Fever, Headache, Sore Chest x 7 days, Runny Nose, Plugged Left Ear/Left Ear Pain, Back Pain, Tightness in Chest.” (Exh. R-17, p. 1691) He was treated for “Acute sinusitis” and “Cough.” (Exh. R-17, p. 1696) On May 21, he reported, “Sore Throat, Terrible Cough, Chest hurts when I cough and back as well.” (Exh. R-17, p. 1697) He was provided with a treatment plan for “Gastro-esophageal reflux disease with esophagitis” and referred to a gastroenterologist (Exh. R-17, p. 1697).

LC2 and the June 15, 2016, Incident

  The Postal Service hired LC2 in 2011 as a city letter carrier in Ohio. In 2015, LC2 transferred to Beacon Hill Station in San Antonio, Texas. In June of 2016, her regular route was Route 30. It is located in a residential neighborhood with a few business addresses. It is mostly a park and loop route. LC2 spent approximately 20 minutes a day in her air-conditioned van, driving perhaps 2 minutes at a time between park points. She walked 12 to 15 miles daily on her route (Tr. 143-47).

  Route 30 was considered “45 over base,” meaning the post office expected the carrier to complete mail delivery on the route in 8 hours and 45 minutes. LC2 routinely submitted a 3996 form every morning for her route “to state that it was going to be 45 minutes over no matter what it was for the day.” (Tr. 149) If a carrier determined later in the day that more time or assistance would be needed to complete the route, he or she was supposed to contact the post office by 2:00 p.m. (Tr. 150). LC2 preferred to text her supervisor rather than call “because I don’t like the confrontation. Like, I didn’t like my bosses getting mad at me if I was going to go over, because they would ask you five thousand questions. They’d make you feel like you did something wrong just because you went over. So it was too much confrontation. I just like texting and being set.” (Tr. 151-52)

  LC2 had been on vacation with her family in northwest Ohio the 2 weeks prior to her incident. She did not spend much time outside. “[I]t was beautiful weather there, but we just—you know, I’m a postal carrier. I spend most of my time outdoors as it is. I don’t like to go outside.” (Tr. 169-70).

  LC2 was sick when she returned to San Antonio from her vacation. “I was congested. I had a fever.” (Tr. 171) She was scheduled to return to work on Monday, June 13, but she called in sick and went to see her doctor. He diagnosed her with a sinus infection and prescribed amoxicillin to treat it and told her to buy Flonase. He did not instruct her to alter her work schedule (Tr. 214). The pharmacist who provided her with the amoxicillin told her to use caution when working in the sunlight because the amoxicillin could cause sun sensitivity (Tr. 170-71). She had little appetite due to the sinus infection, and she did not drink as much liquid as usual (Tr. 222-23).

  Tuesday, June 14, was her scheduled day off. She returned to work on Wednesday, June 15 (Tr. 212). LC2 testified she told Supervisor SG “that I literally got prescribed the amoxicillin and that the doctor had recommended that I take it easy. And the pharmacist had said about the sunlight issue and that I should just -- if he could possibly be lighter on me that day, just to take it easy on me since I was a still a little bit under the weather.” (Tr. 172) Supervisor SG stated LC2 did not tell him she was taking medication or that her pharmacist warned her to avoid sunlight (Tr. 635). Under the CBA, Beacon Hill Station is required to provide carriers with 8 hours of work each workday, and it cannot assign carriers tasks other than carrier work (Tr. 636-37).

  LC2 did not bring as much water with her as usual that morning because she had just returned from vacation and had not had time to prepare. She had two or three 16-ounce bottles of water with her. Around noon, as the temperature rose, she started to feel “dizzy and off,” but she tried to continue (Tr. 177). She did not drink as much water as she usually did when delivering on her route. “I was trying to conserve it as much as I could, because I knew I only had so much.” (Tr. 178)

  LC2 texted Supervisor SG for her 2:00 p.m. check-in and followed up with several more texts as she felt worse. He never responded (Tr. 180).14 She called her husband at approximately 3:00 p.m. and told him she did not feel well. She did not know if her condition was because of the medication or the heat. Her husband contacted LC2’s sister, a registered nurse, who said LC2 needed to drink more water because she was likely dehydrated. She also urged her to contact her supervisor and stop working. LC2 left her route and bought a bottle of Gatorade at a gas station. When she tried to drink it, she gagged and vomited. She “got very scared at that point” and called the Beacon Hill Station employee line at 4:27 p.m. and spoke with Supervisor JL (Tr. 183).

I asked if I could possibly bring the mail back. And he proceeded to tell me that I was not bringing that mail back unless, you know, I was going in an ambulance or the hospital, whichever. And I remember just feeling kind of irritable on that one because he had an attitude. But I was more scared than anything, and I just pushed through, and I said, "[JL], like, I'm not kidding. I'm scared. . . . At first, he definitely wasn't [sympathetic]. And even after I said I was scared, he said: "Well, if you want to call the ambulance, you can. Go ahead." . . . I was still very off about it. Like, I didn't want to get in trouble. But I decided it was better that I did, because I just didn't know what to do.

(Tr. 184)

  At 4:30 p.m., she called 91l. Emergency medical technicians arrived 5 to 10 minutes later. They attended to LC2 and told her she had an elevated heart rate and suggested drinking fluids immediately. They administered IV fluids and told her it was her decision whether to go to the hospital. By then, Assistant Supervisor EM had arrived to retrieve her vehicle, and another carrier started delivering her route. She opted to go to the hospital, and she was taken there in the ambulance. She received more IV fluids at the hospital and was discharged 30 minutes later. Her diagnosis was dehydration. LC2 missed 3 days of work due to her illness (Exh. R-11; Tr. 186-88).

  LC2 had predisposing medical conditions. She took Levothyroxine every morning for hypothyroidism (Tr. 228). Her gallbladder was removed in 2011, and she developed irritable bowel syndrome (IBS) after that. One of the symptoms of IBS is diarrhea (Tr. 223). LC2 avoids certain foods and limits water when delivering her route to avoid triggering the onset of diarrhea (Tr. 229). She had diarrhea on June 15 before she left the post office (Tr. 224). LC2 stated diarrhea “does dehydrate you.” (Tr. 226)

It causes kind of a feeling of dizziness. It causes sometimes where I just feel like I'm weak and stuff like that. That's another reason why I was having a hard time distinguishing between the two, because I'm so used to having that feeling from that that it's hard to distinguish between heat ailments and IBS.

(Tr. 226)

V. TESTIMONY ADMITTED IN SOUTHERN AREA CASES

  The Southern Area is one of the seven areas into which the Postal Service divides the United States for regional delivery (Exh. J-1, ¶¶ 3-4). Three of the five post offices in the cases before the Court are located in the Southern Area. The parties agreed the testimony of Daniel Penland, the Postal Service’s manager for the Southern Area safety department, is relevant to the three Southern Area cases. The Court ruled Penland’s testimony in the hearing for Docket No. 17-0023 in Houston, Texas, is also admitted as part of the record in the present case and in the Benton, Arkansas, case (No. 16-1872) (Tr. 590-91, 802, 805-06).15

  The Southern Area comprises Arkansas, Texas, Louisiana, Oklahoma, Mississippi, Florida, and a portion of Georgia. Approximately 33,000 postal employees work in the Southern Area. Daniel Penland has worked for the Postal Service since 1986 and has been the manager for the Southern Area safety department since November of 2011 (No. 17-0023 Tr. 303-04, 313-14). Penland summarized his duties. “I work with all the districts in the Area Office and Headquarters to ensure all the safety programs and assist the districts in implementing those safety programs. We also help develop and help the districts analyze accident data to help reduce employee injury. We also work with OSHA compliance, inspections and monitoring, as well as working with the unions to ensure all the safety of the employees is met.” (No. 17-0023 Tr. 310-11). Penland was aware that in 2015 at least 119 postal employees in the Southern Area reported sustaining heat-related illnesses while working. In 2018, there were at least 77 such incidents (No. 17-0023 Tr. 329, 334).

  In April of 2016, Penland issued a letter to postal operations in the Southern Area with attached materials for the Southern Area Heat Stress Campaign (No. 17-0023 Exh. C-2; No. 17-0023 Tr. 329). He developed the campaign to “help improve the awareness of our employees about a climate condition that happens every year. . . . To heighten the employees’ awareness and make them aware of things that they may be able to do and perform to improve their ability to work in that climate condition.” (No. 17-0023 Tr. 330) Employee training in the Heat Stress Campaign was not mandatory (Tr. 331). Penland explained the difference between a Postal Service safety program and a safety campaign: “[W]hen I put out a program, it’s usually related to a required element. A campaign is an awareness level. . . . The heat element was a campaign informational awareness.” (No. 17-0023 Tr. 333)

What the intent of the campaign was to provide a wealth of information in different media forms. As you can see when you look through the campaign, there were videos in there, there were PowerPoint presentations. There were links to other outside data sources. There were postings. There were just informational standup talks on a number of different elements that all can relate to a possible employee experiencing heat stroke or heat stress. All of these things could help that employee prepare themselves. . . . But none of it was mandatory.

(No. 17-0023 Tr. 374-75)

  Penland stressed the importance of acclimatization for carriers, which he defines as preparation “for the heat level that you’re going to be working in, whether it’s proper hydration, proper clothing, being aware of the surroundings.” (No. 17-0023 Tr. 341) Penland places the primary responsibility for protecting against heat-related illnesses or injuries on the carrier. He stated it is the policy of the Postal Service “to accommodate medical restrictions as best as possible.” (No. 17-0023 Tr. 345)

  Penland does not believe the temperature the day of any given reported incident is a relevant factor. “It’s how each individual person identifies with that heat and the heat level itself is not necessarily the concern. It’s how that person can deal with that heat and how that heat level affects them. I can be affected by a heat level of 80° or somebody could be out there working in 100 and have no effect. So the temperature itself is not the issue, in my opinion.” (No. 17-0023 Tr. 352-53) He listed factors he did believe are relevant to heat-related incidents:

Had [the carriers] eaten properly that day? Had they provided hydration the night before? Had they had a high alcohol intake the night before? Were they on medication? Were they properly dressed? Were they wearing a hat or was the sun beating down on their head? There's lots of different elements that are part of an investigation where the heat temperature or the temperature outside itself to me is irrelevant because that's a climate condition.

(No. 17-0023 Tr. 353-54)

  Penland was dismissive of the relevance of the heat index for the Postal Service. “I believe it would be valuable as information to the employee. As far as eliminating future injuries, I do not see it has a high value, no. Again, it's more of a condition of what's going on with that employee versus the temperature outside because temperatures are so much different. . . . Heat itself I do not believe is a hazard, no. I believe it is a climate condition.” (No. 17-0023 Tr. 354-55)

  Penland discounted the importance of heat in the reported heat-related incidents, estimating that as many as 40 percent of the reported incidents were not, in fact, due to high temperatures on the day they occurred.

Q.: Mr. Penland, I think you were testifying about the fact that some of the reported illnesses due to heat may have not been due to heat, correct?

Penland: Possibly, yes.

Q.: Okay. And have you investigated what percentage that is?

Penland: The exact percentage, no. I just know that there are--when we look at cases, we want to look and see if the factors are present. And we always want to look at the root cause of the case. So sometimes during that root cause analysis, we will make determinations that the heat maybe is not--wasn't the root cause. . . . And maybe it's a diabetic reaction. We don't know.

Q.: Okay. And have you gone back and done that analysis?

Penland: The specific analysis, no, but we've done-- we've done the root cause. When you talk about analysis, I refer to that as the general -- all of the cases that we're dealing with versus just those specifics. We do go into the specifics on each individual case, especially the more severe ones.

Q.: Okay. So have you gone back and made some determination that -- I mean, have you gone back and looked at the number that you set out in April of 2016 and determined what amount were reported as heat, extreme heat, when the root cause was something predominantly else?

Penland: I've looked at it, and I could estimate the percentage of about 40 percent.

Q.: Okay. And you have looked at all 119 injuries from 2016 and –

Penland: No, I haven't. That's why I estimated. No, ma'am, I have not delved into each one of these 119. But a cursory review gives -- leads to an estimate of about 20 percent [sic].

Q.: Okay. And what did you do in this cursory review?

Penland: I would review whether or not this case was reported with the employee was working indoors or outdoors, first. Then I would look at the occupation that the employee was working in. How much control did they have over their climate?

(No. 17-0023 Tr. 380-83)

  Penland noted OSHA has not promulgated a specific standard addressing excessive heat and testified he did not consider hot weather an appropriate condition for safety regulation. “When you're dealing with the climate, . . . it literally changes from block to block, from city to city, and it's -- it's the natural climate. Also, the other thing that when you look at a hazard, I've been taught through my safety aspect is we work the processes to eliminate that hazard. Again, we can't control the climate. So we will make people aware because the – the climate affects each individual person differently.” (No. 17-0023 Tr. 392)

VI. THE NATIONAL HEARING

Joint Stipulations

  The national hearing was held from February 25 to March 12, 2019, Washington, D.C. At the beginning of the hearing, the Court admitted the parties’ statement of joint stipulations into the record:

1. In the following Fiscal Years (FY), the Postal Service’s total revenue was:

  2016 $71.498 billion

  2017 $69.636 billion

  2018 $70.660 billion

2. In the following Fiscal Years, the Postal Service’s total operating expenses were:

  2016 $76.899 billion

  2017 $72.210 billion

  2018 $74.445 billion

3. In the following Fiscal Years, the Postal Service’s net loss was:

  2016 $5.591 billion

  2017 $2.742 billion

  2018 $3.913 billion

4. As of September 30, 2018, the Postal Service employed approximately 497,000 career employees and approximately 137,000 non-career employees.

5. In FY 2016, the Postal Service employed the following:

  170,885 city delivery carriers

  40,436 city carrier assistants

  68,261 career rural delivery carriers

  53,183 rural carrier associates

6. In FY 2018, the Postal Service employed the following:

  168,199 city delivery carriers

  42,115 city carrier assistants

  70,852 career rural delivery carriers

  59,183 rural carrier associates

7. In FY 2016, the Postal Service had approximately 144,571 city delivery routes and 74,724 rural delivery routes.

8. In FY 2018, the Postal Service had approximately 143,358 city delivery routes and 78,737 rural delivery routes.

9. In FY 2016, the Postal Service managed a combined total of approximately 31,585 post offices, stations, and branches.

10. In FY 2018, the Postal Service managed a combined total of approximately 31,324 post offices, stations, and branches.

(NH Exh. J-100; NH Tr. 11)

Overview of the Postal Service’s Operations

  David Williams Jr. has been the chief operating officer and executive vice president for the Postal Service since February of 2015. He is responsible for all operations required to process, transport, and deliver mail (NH Tr. 1728, 1746). He explained the Postal Service’s operations are divided into three primary sectors: network operations, delivery operations, and retail and customer service operations (NH Tr. 1774-75).

  Network operations cover mail processing plants where mail is sorted, processed, and distributed to some level of ZIP Code order (NH Tr. 1775-76). Network operations include the surface and air transportation that is coordinated with the distribution centers and post offices throughout the nation. The Postal Service coordinates surface transportation with the assistance of over 1,900 contractors and covers approximately 1.9 billion miles a year (NH Tr. 1774-76). It relies on “a vast air network,” which includes 90 airplanes during the day and 140 at night provided by FedEx, as well as planes provided by UPS (NH Tr. 1760). The Postal Service also uses commercial airlines (mainly Delta, United, and American) to transport mail (NH Tr. 1779). The extensive transportation network is necessary due to the Postal Service’s unique mandate to deliver to every address in the United States.

[A] lot of transportation is involved in moving product because of the complexity of our network, the fact that we go everywhere. We go everywhere because our mandate is to serve every American, no matter where they live, no matter what community they're in. And the connectivity that's required to make that happen involves a very complex, very sophisticated transportation network. We spent about $7.9 billion a year on transportation, so a significant spend. It's the second-largest spend, and 11 percent of our expenses are involved in transportation.

(NH Tr. 1780-81)

  Nationwide, delivery operations require city and rural carriers to complete approximately 226,000 routes 6 days a week (NH Tr. 1783-84). The Postal Service uses the concept of “FirstMile” to identify the initial contact the customer has with the Postal Service during delivery operations. A customer wanting to send a letter puts a stamp on it, places it in the household mailbox, and raises the red flag. The raised red flag “is a signal to our carrier workforce that there is mail to be collected. . . We also have a FirstMile component at our post offices. . . [T]here’s a slot where they can drop mail into any one of approximately 31,000 post offices.” (NH Tr. 1785-86)

  Retail and customer service operations also involve a FirstMile component when customers buy stamps or mail packages a post office. Williams stated the Postal Service has the largest retail footprint in the United States, with more retail units than Starbucks, Walmart, and McDonald’s combined. Service and sale associates (SSAs) work in the fronts of the post offices and interact with customers while postal clerks work in the backs sorting mail (NH Tr. 1787-89).

  Williams expounded on the scope and complexity of its operations.

I can't think of any network that is as complex as ours. You think about all the touch points that we have in our network, every 226,000 carriers, 31,000 post offices, 285 processing and distribution centers. Back through our network of transportation, whether it's air or surface, 2 billion miles. Airplanes that are flying all over the country, connecting that promise and that thing, that message of sympathy and love, transactions, educational material to anybody else in the United States or our territories, even the world. We deliver 47 percent of the world's mail.

  So significant, significant operational footprint that we have, supported by a tremendous amount of complexity to make sure that we're delivering the promise of when you put that stamp on that birthday card for one of your loved ones, they're going to get it.

(NH Tr. 1791-92)

  In order to ensure its operations run smoothly and punctually, the Postal Service implements “the 24-hour clock” as an organizing principle. “[W]e have critical points on the clock, developed to make sure that we're hitting the mark, all to achieve on-time service to points. Our mission to provide prompt, reliable, efficient service is based on this 24-hour clock. And it's critical.” (NH Tr. 1795)

  The clock starts with carriers retrieving mail at the FirstMile. At the end of the day, the carriers return to their post offices and place the collected mail in containers that are loaded onto trucks to transport the mail to processing and distribution centers. The operational process starts with cancellations, during which the stamps on mail are marked to show they have been used. The Postal Service expects 80 percent of all collected mail to be canceled by 8:00 p.m. Aligning the cancellation process with the 24-hour clock is crucial for the Postal Service’s overall operations (NH Tr. 1795-97). “[T]hat very first step is highly important because any variation in the very first processing step, it could be a slight variation, but that slight variation creates greater variation at the next step. It creates even larger variation on the third step. Fourth step, even larger. By the time you get to the last step, which is the delivery, we call it the bullwhip effect. A small variation at the front end creates this huge swing of variation at the back end.” (NH Tr. 1797)

  The next step is the outgoing primary processing, where mail is sorted to a destinating plant based on the first three digits of the ZIP Code.16 This step needs to be completed by 11:00 p.m. to align with the 24-hour clock. A second sorting is completed by midnight (NH Tr. 1798-1800). “[A]t midnight, across the country, all this mail that's been collected, the mail that's received over a retail operation, mail that you have put in your mailbox to be collected by the carriers, mail that was inducted into our plant operations by any one of our mailers that have discounts, that so some level of sort, all of that has to take place by midnight.” (NH Tr. 1800-01)

  After the mail is sorted, it must be assigned to transportation by 2:00 a.m. “No wiggle-room on in that. Trucks have to leave. Our entire surface network has been designed by the transport time that it takes to go from point A to point B. Can’t bend time; can’t bend distance. . . [T]his number is fixed in our operating window. By 2 o’clock we have to have that mail assigned. . . [P]lanes and trucks have to leave on time. That is the mark that has to be made.” (NH Tr. 1801-02)

  Once mail reaches its destinating plant, the incoming processing begins. Mail arrives throughout the day and night, but it must be processed by 3:00 a.m. because that is the time postal employees start delivery point sequencing (DPS). DPS must be completed by 6:00 a.m. Priority mail takes longer and is not sorted to DPS but is sorted to a specific post office. It must be finished by 4:00 a.m., when trucks leave the destinating plant to transport mail to the post offices. Once the day’s mail has arrived at the local post office, it must be delivered to the intended address by 6:00 p.m. that day (NH Tr. 1803-06). “[W]e want to get our carriers off the street by 6:00 p.m. And that’s important because the trucks have to come back from the post office, back to the originating processing plant so we can get cancellations done by 8:00 p.m., 80 percent of them.” (NH Tr. 1806)

Finances of the Postal Service

  The Postal Service originated in 1775 when the Second Continental Congress appointed Benjamin Franklin its first postmaster general. President George Washington signed the Postal Service Act in 1792, creating the Post Office Department. It became a cabinet-level department and transitioned to an independent agency in 1971 under the Postal Reorganization Act of 1970 (NH Tr. 1747-1750). In 2006 Congress passed the Postal Accountability and Enhancement Act (PAEA) which, Williams stated, “created some business model changes for the Postal Service, split our products into two product types, competitive products and market dominant products, [and] placed some restrictions on pricing for market dominant products so that we could no longer rise our rates beyond [the Consumer Price Index,] CPI.” (NH Tr. 1751)

  The PAEA requires the Postal Service to prefund the Retiree Health Benefits Fund (RHBF) annually. Williams stated this requirement “really is a millstone around the Postal Service’s neck in terms of finances. The manner in which we’re required to prefund that obligation is one that I don’t think the vast majority of companies or any other government agency is required to do.” (NH Tr. 1751-52)

  Jim Sauber of NALC17 agreed the prefunding obligation is “really the central driving force of Postal Service’s finances. . . . Most companies just pay their retiree health premiums on a pay-as-you-go basis for their current retires. This law added an additional obligation to the Postal Service, not only to pay their existing retirees’ health and premiums, but to pay in advance, decades in advance the cost of future retiree health benefits.” (NH Tr. 894-95) The Postal Service operated at a loss in 2016, 2017, and 2018 (NH Tr. 890-93).18

  This prefunding mandate cost the Postal Service $9.1 billion in 2016, $4.3 billion in 2017, and $4.5 billion in 2018. The year 2016 “was the last year in which the Postal Service was required to prefund their retirees’ health, but also out of their own operating budget pay for current retirees’ health benefits. Starting in 2017 and going forward, they can now use the fund that they’ve set aside for these prefunding payments, which . . . has nearly $50 billion in it.” (NH Tr. 896-97)

  Since 2010 the Postal Service has been unable to meet the RHBF payments. “They have to report it as an expense, but then it gets reported as an additional liability on their balance sheet.” (NH Tr. 897) Because the Postal Service is a federal agency and not a private company, it cannot file for bankruptcy. “So this has become the center of all the discussions about postal reform legislation, is what to do, how to reduce or repeal this prefunding burden.” (NH Tr. 898) If the unpaid amounts for the retiree health benefits were removed from the budget statements for 2013 to 2018, the combined operating income for those years would be $3.8 billion (NH Exh. C-135; NH Tr. 899-903).

  Sauber explained the retiree health benefit is not a debt owed to a third party.

[T]his is not like defaulting on your mortgage if you don't make these payments. It's like if you're in tough times and you stop putting money into your kid's college fund. It's a future obligation and a future liability that you're going to have, but nonetheless it's out there and just by law Congress has decided that the Postal Service and only the Postal Service -- no other private company has to do this, has to prefund retiree health.

(NH Tr. 903-04)

  The Postal Service is an agency of the federal government and, as such, does not file taxes. It is required by the Securities and Exchange Commission to file annual 10-K reports (NH Exh. C-131; NH Tr. 874-75). The Postal Service is funded entirely by the sales of postage and stamps—it receives no revenue from federal taxes “with one small exception.” (NH Tr. 876) Market dominant services (MDS), which include “letters, invoices, statements, [and] marketing mail,” are items for which the Postal Service is the main provider (NH Tr. 877). The Postal Regulatory Commission (PRC) permits the Postal Service to raise rates once a year for MDS, indexed to the CPI (NH Tr. 878) The Postal Service increased rates in January of 2019 by 2.5 percent and estimated it would “generate approximately $891 million in annualized income.” (NH. Tr. 881)

  Congress also provides a “sort of safety valve” for circumstances where higher rate increases are deemed necessary, called “exigent rate increases” that are “above and beyond the CPI.” (NH Tr. 881-82). In 2011 or 2012, in the aftermath of the Great Recession, the Postal Service experienced a severe drop in mail volume. It petitioned the PRC for a 4.3 percent exigent rate increase above the CPI, which the PRC granted in December of 2013. The exigent increase was temporary, staying in effect until the Postal Service recovered $4.6 billion. It expired in April of 2016 after meeting that goal (NH Tr. 882-83).

  The Postal Service also raises revenue by offering competitive services in the categories of priority mail, priority mail express, first-class package service, and parcel select. It has more flexibility in setting the rates according to market conditions for competitive services (NH Tr. 883-85). Sauber stated competitive services have given an economic boost to the Postal Service. “There was a booming, booming growth in e-commerce, and so the demand was providing the ability for the Postal Service to raise their rates. The demand was also raising their costs too, so that's in part why they did these rate increases.” (NH Tr. 890) The Postal Service raises about $21.5 billion of its annual $71 billion revenue from competitive services. In 2018, approximately 4 percent of the total number of pieces carriers delivered were categorized as competitive services (NH Tr. 886-67). In January 2019, the Postal Service implemented a 7.4 percent increase in its competitive rates (NH Exh. C-131; Tr. 887).

  Another anomaly of the Postal Service’s business model is its partnership with its direct competitors. Williams stated, “[W]e rely on FedEx and we rely on UPS, but we also compete with them. So in the package market there is a lot of competition, as you might imagine, with two big package delivery companies like UPS and FedEx. So within the competitive product line, most of the products and services are around packages.” (NH Tr. 1753) The Postal Service is committed to meeting service standards for mail delivery, meaning the transit time for different types of mail is predictable. First class mail has overnight, 2-day, 3-day, 4-day and 5-day service standards (NH Tr. 1756). The Postal Service recognizes its customers rely on its promise to meet its service standards for both business and personal reasons.

[W]e have a 2-day service commitment for first class mail if you're mailing within a 6-hour drive time within the United States, 2-day service standard. You're expecting to have that mail delivered in 2 days. If you're mailing a bill or if you're synchronizing when you're mailing a birthday card to your mother, and you know she lives within six hours of you, you know you've got 2 days to get that mail piece delivered, the promise that we're making our customers through our service standards.

  And cataloguers plan their promotions around expected delivery times in the home. They staff up their call centers expecting when we're going to deliver a catalogue in somebody's home so that when you receive a catalogue, you're calling up the call center and making an order.

  So our customers are counting on us. Amazon is counting on us to make their 2-day promise. Cataloguers are staffing up and counting on us to deliver catalogues so that whatever product is being sold can be bought. And if you've got personal correspondence, business correspondence or paying your bills, we've got a promise that we're going to deliver on that promise. When those expectations aren't met, our customers can get quite agitated, right. If you make a payment to your mortgage and it's not received on time and you get hit with a late fee, that's a major issue for our customers. If you staff up your call center and expecting a lot of calls because you've entered product into one of our plants and we don't deliver

that timely, number one, you're not getting the sales that you're expecting. You've paid for a lot of people to be in call centers that aren't taking calls.  

(NH Tr. 1762-64)

  For certain guaranteed types of mail, the Postal Service must refund the customer’s postage if the mail is not delivered in the promised time, which, Williams stated, is a financial penalty. However,

the bigger penalty for us is when customers use us and we don't deliver on the promise that we're making, they go to alternative places, right? We're competing in every single product line. It's not just the competitive products where people traditionally see us as competing with United States Parcel Service or FedEx.

  We're competing now with our own customers. We're competing with Amazon. Amazon is creating their own delivery network. We're competing with electronics. . . . If you go on any social media app, whether it's Facebook, whether it's Instagram, whether it's email, you're getting hit multiple, multiple times by an unlimited number of companies that are using electronic media to deliver their message, whether it's a business message, whether it's a transaction, whether it's a bill payment, bill presentment, advertising piece, if it's periodicals, online periodicals.

  So even within our market dominant products, we're competing in every product, and service -- it's very hard to compete when somebody can deliver an email to your account free and when they want. . . . But if we're not delivering on our standards and we're losing customers, we call that churn, so churn is a term that we use. Last year we lost $5.5 billion for customers that left us. About 1.8 billion of that was because of service-related issues.

  So when we're not delivering on service, promises that we're making when we ink deals with some of the major e-commerce companies, they leave us. Some of them left us this past Christmas season when we were having difficulties in certain pockets of the country. We lost business because some of these e-commerce companies diverted packages that we would normally have received and were expecting to receive, they diverted them to some of our competitors.

(NH Tr. 1765-67)

NALC and Heat Stress Awareness

  Manuel Peralta works in Washington, D.C., as the national director of safety and health for the NALC. NALC, with approximately 295,000 active and retired members, is “the union that has exclusive jurisdiction to represent city carriers throughout the country.” (NH Tr. 43)

  In July of 2012, Peralta learned a carrier in Independence, Missouri, “had died, and it was believed to have been related to the heat.” (NH Tr. 52) In December of 2012, the Secretary issued a willful citation to the Postal Service for a § 5(a)(1) violation for exposing employees to excessive heat. The Postal Service contested the citation and the case went to hearing in February of 2014.

  Peralta attended the hearing presided over by Judge Peggy S. Ball. He observed the testimony of the Secretary’s expert witness, Dr. Thomas Bernard (NH Tr. 52-54).19 Dr. Bernard’s testimony inspired Peralta to address the issue of excessive heat exposure for carriers.

As a direct result of the testimony of the doctor and the Occupational Safety and Health expert . . . I was stunned over what they explained, how it -- the heat affects the body. . . . The steps that I personally took is, I started to speak with the Business Agent, speak with the other officers, and determined that we had to learn more about the heat, learn more about its effects, learn more about what do we have to do as a craft to prevent our brothers and sisters from getting hurt. A few months later, the judge issued her decision.20 And in reading her decision, I decided to start writing articles where I specifically made reference to her findings and her opinion. And I started to read more and more and more, including documents that came out from NIOSH and recommendations, and started to put together information and sending it more and more to the field.

(NH Tr. 55-56)

  In response to increased awareness of heat stress, the Postal Service and NALC negotiated a memorandum of understanding (MOU) in 2015 (NH Tr. 56, 59). Section 1 of the MOU addresses training and provides:

New letter carrier employee orientation will include the heat stress training identified below. Training will also be provided annually (no later than April 15) to all employees, with regular reminders throughout the summer season by local management.

LMS Course 10019802—Heat Stress Recognition and Prevention (Supervisors and Carriers)

PowerPoint Presentation—Heat Stress Recognition and Prevention (Supervisors to present to carriers). This program is designed as alternative training for those employees without access to the online Learning Management System.

Heat Stress SDOM Video: http://blue.usps.gov/hr/safety/video/heat-stress.htm

Stand Up Talks and Info Pak Information (attached as an appendix).

(NH Exh. C-106, p. 3) The Postal Service did not make the heat stress training mandatory for supervisors until May of 2018 (NH. Tr. 61).

  The MOU was signed on May 5, 2015, and applies to the post office in Independence, Missouri, but states, “While this Agreement applies solely to the Independence, Missouri, Post Office, including its stations and branches, the parties recognize that heat abatement is an essential element of on-the-job safety for city letter carriers in all locations where city letter carriers are exposed to excessive heat.” (NH Exh. C-106)

  The second section of the MOU addresses increased supervisory monitoring of carriers when the heat index rises to 103°F:

2) Monitoring Employees

. . .

[T]o the extent practicable, management will increase contact with employees performing street duties for the purpose of monitoring employees’ well-being on days when the National Weather Service predicts a heat index (air temperature and relative humidity combined into a single value) at or above 103°F. For purposes of this agreement, the combination of air temperature and relative humidity at or above 103°F is deemed an “excessive heat day.” The chart below indicates the heat index system used by the National Weather Service. [The NWS’s heat index chart is depicted.]

(NH Exh. C-106; NH Tr. 147-51)

  The MOU includes a section on work/rest cycles, again finding the heat index of 103°F to be a triggering event for additional measures:

5) Work/Rest Regimen

On days where the National Weather Service predicts a heat index at or above 103°F, in addition to their regular scheduled break(s) and lunch break, city letter carriers are encouraged to take additional breaks in designated climate-controlled or shaded areas . . . when necessary to mitigate the impact of excessive heat. Additionally, the parties understand and agree that it may be necessary for individual city letter carriers to take additional breaks when the heat index is under the threshold set above. Individual city letter carriers retuning from absence or illness may be especially vulnerable to the effects of excessive heat, and therefore, are especially encouraged to take necessary breaks pursuant to this paragraph. City letter carriers taking an extra break under this provision, using their assigned MDD, send a text message to their assigned facility at the MDD, send a text message to their assigned facility at the beginning of the break (indicating the break location) and another text message at the conclusion of the break. The parties understand and agree that there may be circumstances where a city letter carrier taking a break under this provision may not immediately report the breakthrough the MDD.

(NH Exh. C-106; NH Tr. 151-53)

  In 2015, without input from NALC, the Postal Service implemented a heat stress awareness program that supervisors communicated to carriers during standup safety talks (NH Tr. 62-63). Peralta found the program to be “very shallow in the depth of information. . . . [I]t’s the limitation of hydrate yourself, avoid certain things, but very little, and none that I remember on acclimatization.” (NH Tr. 63) He also objected to the format of standup talks being used to communicate the information, based on the 5 years he had worked as a carrier in California.

When I was a carrier in Anaheim, I remember being called together for standup talks where the supervisor would read in the most monotonous, boring, uninspiring tone what he was required to read. And it felt like they were making a little checkmark on a piece of paper, telling you to finish up, go back to your case. It was absolutely worthless. So I spoke up because I was very disappointed with the quality of training. And that's one of the reasons that my president later volunteered me for the safety committee.

(NH Tr. 63-64)

  Peralta created a form entitled Initial Heat Injury Report and distributed copies to the local union branches and posted it on NALC’s website (NH Exh. C-105; NH Tr. 65-67). The purposes of the form are to track heat injuries and to assist injured carriers with claims under the Federal Employee Compensation Act (NH Tr. 67). NALC developed yearly spread sheets to track the heat injury reports (NH Exhs. C-107 (2015), C-108 (2016), C-109 (2017), C-110 (2018); NH Tr. 79-88).

  Peralta investigated many of the injury reports and found a pattern emerged.

[I]t surprised me how much pressure the employees were under to keep working. It stunned me that it was a common denominator in most of the cases. Keep pushing and pushing and pushing. We have a heat wave. We know we're affected by the heat wave. . . . It was my understanding that the employees were suffering from pressure to keep pushing forward. When I read the statements, in some of them it was, "I called my supervisor. My supervisor told me to keep going in spite of a standup talk that told us to recognize the symptoms. When we did call, we were forced to keep going." And that happened a lot.

(NH Tr. 70-71) Eventually, Peralta became aware that carriers who suffered heat injuries were subject to disciplinary procedures (Tr. 89, 96).

  Peralta attributed the death of a carrier in Medford, Massachusetts, in July of 2015 to excessive heat exposure (NH Tr. 102). He testified regarding the death of another carrier in Woodland Hills, California, in July 2018 on a day when the temperature was 117°F. The carrier “had been off duty for approximately three months. She had suffered an on-the-job injury. I believe it was either a severely sprained or a broken ankle. She was on medication, off work for three months. That Friday was her first day back.” (NH Tr. 104) Peralta discovered the Postal Service had certified the deceased carrier had undergone heat safety training during a period of time when she was not working.

[D]uring my meeting on May the 15th of 2018 with management, they also told me every single letter carrier in the country will also undergo the LMS training for the heat safety program that we audited in 2015. They specifically put, to me, confirmation that 640,000 employees will undergo that training. Because I was very doubtful that they were going to have everybody go. I said, are you talking every single letter carrier? Well, we're not talking about individually, but in groups. Every single letter carrier and every single supervisor. So as the facts revealed themselves, I am provided with documents that indicated [the deceased letter carrier] was certified as having gone through that training when she wasn't ever at work yet. Her first day at work, she returns and dies, but they certified that she had gone through that training weeks earlier, which was absolutely untrue. They were embarrassed, and then they later, after the fact, corrected their records.

(NH Tr. 106)

Form 3996 and Time Pressure

  Jennifer Thi Vo works as the Postal Service’s director of city delivery (NH Tr. 2583). She has worked for the Postal Service for 25 years and has held a variety of positions, including post office supervisor (NH Tr. 2584). She oversees all work aspects of city carriers and the approximately 143,000 routes on which they deliver. The Postal Service employs approximately 161,000 full-time city carriers and 2,800 part-time employees, plus approximately 44,000 CCAs (NH Tr. 2587-88).

  Vo has experience as a post office supervisor receiving Form 3996 requests from carriers due to predicted hot weather. She explained the process she used with the requesting carriers to determine whether she approved or disapproved the requests.

  I supervised in Memphis during the summer of 2014. . . . [I[t's hot, so on the 3996 they asked for overtime based on the heat. . . . What I looked at and what I try to teach is that each one of the 3996s are different because the employees are different and the routes are different. So the first one that I disapproved was for 30 minutes and it had heat. The conversation with the employee is that they leave their route at 10:00 o'clock and then usually are back by 4:00. But that day they were leaving at 9:30, so they're leaving an extra half an hour early. So the conversation that I would have is, "I'm disapproving your 3996. You asked for 30 minutes "O[vertime]" due to the heat. I do think that you might take the 30 minutes but you're leaving a half an hour earlier. I'm not going to give you any extra work." So I would disapprove that.

  The second one might be different. 30 minutes, and I remember this one. He asked for 30 minutes. He was leaving on time, so he's leaving at 10:00. He's supposed to leave at 10:00. He put heat, but his building, his route is 95 percent in

the building. It's in the Civic Center, which is air conditioned, which the heat should not affect it. But usually what I did on that was I disapproved the 30 minutes. I gave him 15 minutes and told him that I would approve it. Use it if he needs it. If he needs more, let us know. But that's the conversation.

  The last two we approved because they were out on the street. They were leaving at the same time, so we went ahead and approved it.

  On those three cases, none of those employees worked overtime. It's really about the communication and talking to them. If they need it, they need it. If they don't -- 3996 is just a form to kind of determine if you need something.

  It's going to change once you get on the street. It might be that they used 35 minutes. It might be they used 15 minutes, but every single form is not the same, every route is not the same and every carrier is not the same.

  So that supervisor is really the key because they're the ones that are talking to employees every day. . . . [Form 3996 requests are] made at the beginning of the day, but all of the stations and branches usually have a requirement to call by a certain time. So if you know -- so at my stations, they're required to call at 3:00 o'clock. So they know -- it doesn't mean wait until 3:00 o'clock to call. It means that as soon as they find out that there's an issue there, give us a call.

  We have three options. The supervisors that pick up the phone have three options when they call. The first option is go ahead and use the overtime. Second option is I'll send you some help. And the third option is bring back the mail.

  Now, there's situations. Just like there's different carriers, there's different supervisors out there that's going to need training and stuff that will just say, "Continue going." If it's going to continue going, they have approved that overtime.

(NH Tr. 2597-2600)

  When asked if it is proper procedure if a supervisor “just had their employees put a 3996 in a folder, doesn’t look at them, disapproves them,” Vo responded, “It would be. . . . A 3996 is—if it doesn’t get approved or disapproved, it’s automatically approved. So if you put in a request for overtime and the supervisor doesn’t address it or any point, then the overtime’s approved.” (NH Tr. 2672)21

  Vo testified a carrier’s medical condition could affect the time needed to complete a route (NH Tr. 2636). When a carrier notifies the post office in the morning he or she is not feeling well, the supervisor can allow extra time for overtime or assign part of the route as a pivot. If a carrier is on the street and calls to say he or she is not feeling well and may require extra time to complete the route, Vo stated, “We usually won’t have an issue with that.” (NH Tr.2637)

  On cross-examination, Vo was asked about testimony from carriers in the local cases indicating their supervisors consistently discouraged them from submitting Forms 3996 or taking lunch or breaks due to hot weather. She responded, “So what I heard from the testimony is that the employees felt they were pressured to be done on time. And I don't see that to be the case of my experience and what I see as in data. These looked like isolated incidents. But I don't see -- I haven't seen any factual, just what I've heard on it. But I don't think that that is representative of the Postal Service.” (NH Tr. 2728)

  Vo presents an idealized description of conversations between supervisors and city carriers regarding Form 3996 requests. The pleasant, civilized discussions she envisions, based on mutual respect between carriers and supervisors are not, however, the norm. Rather than being “isolated incidents” when “employees felt they were pressured to be done on time,” the records in the five Postal Service cases, across five cities, demonstrate rural and city carriers experience near-constant pressure to complete their routes faster and to discourage them from taking breaks, reporting injuries or illnesses, or calling in sick. The Court agrees with Peralta’s opinion regarding the attitude of the Post Office to its carriers. “[I]t surprised me how much pressure the employees were under to keep working. It stunned me that it was a common denominator in most of the cases. Keep pushing and pushing and pushing.” (NH Tr. 71).

  Dr. Bernard testified carriers are influenced by the corporate culture of the Postal Service to prioritize productivity. “[T]here seems to be a dance where I ask for extra time with a form 3996 . . . and [the forms will] sit on a desk, and so it becomes an effective denial. . . . [T]here's pressure that comes down . . . to the senior supervisor in an office down to the first-line supervisors to the employees about the need to meet these goals. And I mention it from the dance point of view is there was no evidence that people were punished on taking more time, but there was certainly this culture of discouraging, you know, that was there.” (NH Tr. 847-48) He stated carriers who in 2016 did report heat stress symptoms “were nonetheless encouraged to continue their routes.” (NH Tr. 945) Even though supervisors received heat stress training, “they still had the emphasis on productivity versus trying to make sure that there was an early identification of signs and symptoms and early first aid.” (NH Tr. 947)

  In each of the five local cases, supervisors exhibited dismissive or disparaging attitudes towards the carriers. Here, Supervisor SG ignored LC2’s texts telling him she was sick, and he did not bother to confirm he received them once he learned she had been taken to the emergency room. Supervisor JL reacted with indifference to CCA1 and LC2 when they called from their routes and reported they were too sick to continue. Supervisor JL told LC2 she could not return with undelivered mail unless she “was going in an ambulance.” (Tr. 184) He left the choice of calling 911 to CCA1 and LC2, without taking steps to evaluate the severity of their illnesses. These cases reveal a pervasive culture of mistrust and skepticism on the part of postal supervisors regarding reports of injuries or illnesses made by carriers. The supervisors’ indifference and the carriers’ reluctance to engage in confrontational conversations with management contribute to the stress already inherent in meeting the unforgiving demands of the 24-hour clock.

VII. THE CITATION

The Secretary’s Burden of Proof

To establish a violation of the general duty clause, the Secretary must prove: “(1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.” S. J. Louis Constr. of Tex., 25 BNA OSHC 1892, 19 1894 (No. 12-1045, 2016).

Quick Transp. of Arkansas, LLC, No. 14-0844, 2019 WL 33717, at *2 (OSHRC March 27, 2019). “The Secretary also must prove that the employer ‘knew, or with the exercise of reasonable diligence could have known, of the violative conditions.’ Tampa Shipyards Inc., 15 BNA OSHC 1533, 1535 (No. 86-360, 1992) (consolidated).” A.H. Sturgill Roofing, Inc., No. 13-0224, 2019 WL 1099857, at *2 (OSHRC Feb. 28, 2019).

Alleged Repeat Violation of § 5(a)(1)

  Item 1 of Citation No. 1 alleges,

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which [were] free from recognized hazards that were causing or likely to cause death or serious physical harm to employees from exposure to excessive heat.

a) On or about June 13, 2016, at job sites along mail routes for the Beacon Hill Station, employees were exposed to the hazard of excessive heat while walking and hand-delivering mail in an outdoor environment.

b) On or about June 15, 2016, at job sites along mail routes for the Beacon Hill Station, employees were exposed to the hazard of excessive heat while walking and hand-delivering mail in an outdoor environment.22

A. Existence of a Hazard

1. The Evidence Does Not Establish Exposure to Excessive Heat Caused the Illnesses of CCA1 and LC2

  The first element the Secretary must prove to establish a § 5(a)(1) violation is: “A condition or activity in the workplace presented a hazard.” The alleged violation description (AVD) of the Citation identifies the workplace at issue as the “outdoor environment” in the area covered by Beacon Hill Station in San Antonio, Texas, through which the city carriers walked as they delivered mail on their routes. The Citation identifies the hazard presented as “excessive heat.” The AVD does not identify the “condition or activity” that presented the hazard. The implication is the condition presenting the hazard of excessive heat is hot weather, but the AVD does not specify at what temperature weather is “hot,” and it does not include the high temperatures or heat indexes for June 13 and 15, 2016.

Heat Stress Hazards

   The Secretary called Dr. Tustin to testify regarding excessive heat exposure.23 The Court determined Dr. Tustin was qualified to provide expert testimony “regarding occupational medicine in general, heat stress exposure assessments, and the epidemiology of occupational heat-related illnesses.” (NH Tr. 254)

  Dr. Tustin explained heat stress results from a combination of a person’s metabolic heat and environmental heat. Metabolic heat is generated by the human body and environmental heat results from sources outside the body. Sources of environmental heat include air temperature, relative humidity, radiant heat, and air movement. Humidity is the concentration of water vapor in the air. Radiant heat is generated by electromagnetic waves, such as direct sunlight (NH Tr. 255-57). Sunlight is “radiation that is striking the worker. So moving from the shade into the sunlight, even if the air temperature doesn’t change, you’ll be struck by the radiant heat so it can feel hotter.” (NH Tr. 258) The National Weather Service uses the heat index to combine air temperature and relative humidity as a single metric. “What it’s doing is accounting for two of the main environmental factors. . . . If the humidity rises, the heat index rises for a given temperature. So it’s assessing how it feels to a worker.” (NH Tr. 274)

  The most serious illness caused by heat stress is heatstroke, which causes a dysfunction of the brain. Symptoms include slurred speech, disorientation, confusion, unconsciousness, or coma. Heatstroke causes an elevated body temperature, generally defined as 104 or 105°F (NH Tr. 259). Heat exhaustion is a less severe result of heat stress. Its symptoms may include headache, nausea, vomiting, dizziness, and profuse sweating. Heat exhaustion does not result in an elevated body temperature or brain dysfunction (NH Tr. 260). Dr. Tustin stated symptoms of heat exhaustion, either separately or in combination, are also symptoms of other conditions and their presence may be unrelated to heat (NH Tr. 538-541). Unlike heat stroke, there is no diagnostic test for heat exhaustion (NH Tr. 536). Less severe conditions caused by heat stress include heat cramps, heat rash, and heat syncope (fainting) (NH Tr. 261).

CCA1 and the June 13, 2016, Incident

  Dr. Tustin reviewed certified weather data from the National Weather Service (NWS) for San Antonio, Texas, on June 13 and 15, 2016 (NH Exhs. C-144 & C-146; NH Tr. 415). The NWS data showed the highest temperature in San Antonio on June 13 occurred at 3:58 p.m. It was 93°F, and the relative humidity was 57 percent, resulting in a heat index of 105°F.

  Dr. Tustin testified a heat index of 105°F is hazardous, based on epidemiological studies and cases he has reviewed (NH Tr. 418). He stated his belief is “also consistent with other recommendations, for example, from the National Weather Service and OSHA, heat index charts and thresholds that they’ve published.” (NH Tr. 419)

  Dr. Tustin reviewed CCA1’s hearing testimony and medical records, including tests conducted at the urgent care center where CCA1 went the evening of June 13 (NH Exh. C-175). Dr. Tustin discussed the test results.

Dr. Tustin: I remember they tested his blood for -- the one that I remember was -- abnormal was the creatinine level. The creatinine level was elevated, which creatinine is a measure of kidney function. So when the creatinine level is elevated, that indicates that there may be kidney injury.

. . .

Q.: [D]o you recall if he received any intravenous fluids?

Dr. Tustin: Yes, I believe he did.

Q.: And do you recall what happened in terms of the creatinine level after he received intravenous fluids?

Dr. Tustin: I don't recall if they checked it again after he got the IV fluids. I didn't -- I don't think I saw a follow-up test after he got the IV fluids.

. . .

Q.: And in this case, was this an acute kidney injury in your opinion?

Dr. Tustin: I think it probably was. And the reason I say that is because when you have the word "acute," now you're talking about whether this was something that had a sudden onset during that day or whether this was a chronic kidney condition. And I didn't see any evidence that he had any chronic kidney condition. I don't believe he reported that as part of his past medical history. And so given the fact that this creatinine level was mildly elevated on a day when he had been working outdoors in conditions that I considered to be hazardous, and that he had sweated profusely, that's a risk factor for developing acute kidney injury. So that's why I think it probably was a mild case of acute kidney injury, yes.

Q.: To a reasonable degree of medical certainty?

Dr. Tustin: I would say so, yes.

Q.: At the urgent care center, a physician diagnosed dehydration and an upper respiratory tract infection. Do you agree with those diagnoses?

Dr. Tustin: Yes. I didn't see any reason to dispute those diagnoses.

Q.: And acute kidney injury was not specifically diagnosed. But in your opinion, he did suffer from acute kidney injury?

Dr. Tustin: I think it's more likely than not – than not, yes. I mean, I would have liked to see a follow-up creatinine level afterwards, just to verify that. But I think, given the circumstances, it's likely that it was acute kidney injury.

Q. In terms of the dehydration diagnosis, what's your conclusion as to what caused the dehydration?

Dr. Tustin: I believe that it was a result of the -- at least in part a result of the heat stress conditions to which he was exposed.

Q.: Why do you say that?

Dr. Tustin: Heat stress -- like I said before, heat stress can cause sweating. He described it, I believe, as profuse sweating. And profuse sweating can cause people to become dehydrated. The body loses water, so they have what we call volume depletion and not as much blood plasma volume as normal. . . . And so that can cause dehydration. The heat stress causes profuse sweating, which causes

dehydration.

Q.: In terms of the diagnosis of an upper respiratory tract infection, do you think that that could've contributed to the dehydration?

Dr. Tustin: Yes, I think so.

(NH Tr. 420-24)

  On cross-examination, Dr. Tustin agreed CCA1 had been ill with an upper respiratory tract infection for several days prior to June 13, 2016, and the condition could cause dehydration (NH Tr. 732). He conceded the steroid injection CCA1 received and the discharge instructions given to him were not treatments for heat-related illness. The treating physician also ordered a rapid strep test and prescribed several medications, which Dr. Tustin agreed were not consistent with a diagnosis of a heat-related illness (NH Tr. 738). Dr. Tustin agreed that in the three visits to the urgent care center CCA1 made on April 19, May 21, and June 13, 2016, his symptoms were relatively consistent and indicative of an upper respiratory infection (NH Tr. 738-39).

  Dr. Shirly Conibear also reviewed CCA1’s medical records.24 The Court determined Dr. Conibear was qualified, based on her knowledge, skill, experience, training, and education, to testify as an expert “in occupational medicine, with specialized expertise in heat stress and abatement measures that may materially reduce the hazard of excessive heat.” (NH Tr. 3013)

  Dr. Conibear concluded CCA1 did not experience a heat-related illness on June 13, 2016 (NH Tr. 3086-87). She noted the following regarding the record of his urgent care center visit: the attending physician ordered a rapid stress test and a CHEM8+ test.; the physician prescribed Cheratussin (a cough syrup) and Ventolin (an asthma inhaler used to treat bronchospasm); and CCA1’s lab results do not indicate a heat-related illness. None of these treatments or results is typical for heat-related illnesses. The only treatment CCA1 received that was consistent with a heat-related illness was administration of IV fluids for dehydration. Dehydration may be related to heat stress, but it is also a symptom of infection (NH Tr. 3094-95). Dr. Conibear testified CCA1’s discharge instructions relate to an upper respiratory tract infection (NH Tr. 3096). Dr. Conibear noted the symptoms that prompted CCA1’s visits to the urgent care center on April 19, May 21, and June 13 were similar and consistent with an upper respiratory infection (NH Tr. 3097-98). She concluded CCA1 would have manifested the same symptoms of upper respiratory illness on June 13, 2016, had the outside temperature been 70°F (NH Tr. 3128-29).

LC2 and the June 15, 2016, Incident

  The highest temperature on June 15 was recorded at 3:58 p.m. It was 95°F, with a relative humidity of 50 percent, resulting in a heat index of 105°F (NH Exh. C-302; NH Tr. 418, 426). Dr. Tustin testified a heat index of 105°F presents a heat stress hazard. He reviewed LC2’s medical records and concluded she was suffering from a heat-related illness on June 15 (NH Exhs. C-176 & C-177; NH Tr. 429).

  LC2 was diagnosed with dehydration at the hospital. It was Dr. Tustin’s opinion she also had heat exhaustion.

All the symptoms and signs that she expressed fit with heat exhaustion. The fast heart rate, the fact that apparently, she became so exhausted that she could not finish her mail route. That's why I think that I would call it heat exhaustion. . . . I think [the dehydration and heat exhaustion] were caused, at least in part, by the heat stress conditions that she was exposed to. . . . [S]he was diagnosed with dehydration. And I'm well aware from, you know, reviewing many other cases that heat stress again causes sweating, which can cause people to lose volume of water in their body. So that's -- that's the main mechanism which heat stress causes dehydration. . . . [B]ased on being away from work for two weeks, I -- in my opinion, it was likely that she was not fully acclimatized to the heat stress conditions that she encountered when she returned to work.

(NH Tr. 429-30)

  Dr. Tustin testified LC2’s sinus infection may have contributed to her dehydration but found “pretty much all of her sinus symptoms were more consistent with a heat-related illness than with a sinus infection. Sinus infections typically have symptoms like facial pain, runny nose, headache, maybe losing the ability to smell things, whereas . . . her symptoms were becoming exhausted, fast heart rate, vomiting.” (NH Tr. 432-33). Dr. Tustin stated, “Within a reasonable degree of medical certainty, I think that this illness would not have occurred without the heat stress exposure (NH Tr. 433). Dr. Tustin considered LC2’s illness “serious,” but clarified it is not a term physicians use.

I was asked to opine on whether these illnesses were serious, and since we don’t really use that as a term of art, we understand the word “serious” just like any layperson does. I decided to adopt the specific definition when analyzing these cases. . . . I adopted the definition used by OSHA or determining whether an illness has to be recorded on an OSHA 300 log. That includes any fatalities, hospitalizations, medical treatment beyond first-aid or illnesses that require days away from work.

(NH Tr. 434)

  Dr. Conibear reviewed LC2’s medical records and deposition testimony. She concluded LC2 did not suffer a heat-related illness on June 15, 2016, but instead experienced a “flare up” of chronic IBS, which caused her to be dehydrated (NH Tr. 3118-19). LC2 limited her food and liquid intake because “[w]henever you eat or drink, it creates a peristaltic wave in the gut and so that precipitates a bout of diarrhea. . . .[I]t will contribute to dehydration.” (NH Tr. 3119) Dr. Conibear stated diarrhea is “particularly problematic because a person loses electrolytes at the same time to a much greater extent than sweating. So it not only depletes the body of water but also of sodium and potassium. . . [Resulting in] [f]atigue and, if the loss is great enough, there can be cardiac arrhythmias or even central nervous system symptoms.” (NH Tr. 3120)

  Dr. Conibear testified the amoxicillin prescribed to LC2 could have side effects of dizziness, nausea, and diarrhea. For a person who already has IBS, taking amoxicillin would “likely make it worse and it’s likely to manifest sooner.” (NH Tr. 3124) LC2 also took Levothyroxine, which has possible side effects of increased body heat and pulse rate (Tr. 3125).

  Dr. Conibear stated a person suffering from IBS would have a difficult time acclimatizing to hot weather because IBS “interferes with the accumulation of increased body water. . . [I]t’s one of the adaptive responses that has been studied in the physiology lab. It shows that an increase in water permits earlier and more effective sweating, and also because it provides more fluid than can be used to dump heat off into the periphery.” (NH Tr. 3127).

  As with CCA1, LC2 had an active infection. Dr. Conibear testified the symptoms of infection can mimic those of heat illnesses. “[I]t relates to core body temperature, or it can. And it also causes inflammation, which is activation of the white blood cells in the immune system. But the effects of inflammation are such that they can cause symptoms that are similar to heat exhaustion.” (NH Tr. 3156-57)

Credibility Determination

  Dr. Tustin testified unequivocally that heat stress was one of the causes of the illness that led to CCA1 and LC2 calling 911 for medical assistance on June 13 and 15, 2016. Dr. Conibear was just as adamant the heat index of 105°F on those days had nothing to do with their illnesses, which were caused by predisposing conditions. These two highly-credentialed experts reviewed the same medical reports and testimony and reached opposite conclusions. They both appeared confident, knowledgeable, and trustworthy as they testified. The Court does not, however, find their conclusions regarding the cause of the illnesses of CCA1 and LC2 to be particularly helpful.

  Dr. Tustin and Dr. Conibear reviewed the limited information presented in the medical records and appeared to conclusively diagnose the employees’ maladies. They each appeared to be beyond doubt as to cause of the illnesses in the two employees whom they had never met or examined. Yet the basis for their certainty is not explained. For example, Dr. Tustin noted CCA1 had an elevated creatinine level on June 13 and concluded, to a reasonable degree of medical certainty, CCA1 had suffered an acute kidney injury caused by heat stress (Tr. 422). He did so without knowing the follow-up creatinine level, which would allow him to verify his conclusion, and despite the absence of an acute kidney injury diagnosis from the attending physician. He did not cite other possible causes of an elevated creatinine level and explain why he had ruled them out.

Q.: And acute kidney injury was not specifically diagnosed. But in your opinion, he did suffer from acute kidney injury?

Dr. Tustin: I think it's more likely than not – than not, yes. I mean, I would have liked to see a follow-up creatinine level afterwards, just to verify that. But I think, given the circumstances, it's likely that it was acute kidney injury.

(NH Tr. 422-23).

  He also determined LC2 experienced heat exhaustion, in addition to dehydration, on June 15, even though the attending physician diagnosed her only with dehydration (NH Tr. 429). Dr. Tustin had agreed earlier in his testimony that the symptoms of heat exhaustion, either separately or in combination, are also symptoms of other conditions and their presence may be unrelated to heat (NH Tr. 538-541).

  Likewise, Dr. Conibear was unwavering in her opinion the hot weather on June 13 and 15 in San Antonio had no causal link to the illnesses of CCA1 and LC2.

Q.: [I]s it your opinion that [CCA1’s] illness was solely a result of the URI [upper respiratory infection], and heat stress did not play a role?

Dr. Conibear: Yes.

Q.: Do you recall that [CCA1] testified that while on his route prior to calling his

supervisor around 4 p.m., he began sweating profusely?

. . .

Dr. Conibear: Let me look. Yes, okay, I do see it in my report.

Q.: And so is it your testimony that, in your opinion, [CCA1’s] profuse sweating starting in the afternoon was not related to his walking more than five miles, his carrying a satchel weighing up to 30 pounds, or the fact that the heat index exceeded 100 degrees on that day?

. . .

Dr. Conibear: Yes.

Q.: So do you believe if, let's say, [CCA1] had been at home that day in air conditioning and sitting down, do you believe his URI would have caused him to start sweating profusely in the afternoon?

Dr. Conibear: Yes.

(NH TR. 3206-07)

Q.: [LC2] testified that she walks 12 to 15 miles per day and that her satchel weighs between 20 and 40 pounds on a normal day. You concluded that neither the environmental heat conditions nor the metabolic heat conditions played any role in [LC2’s] illness; is that correct?

Dr. Conibear: I don't believe that they caused her illness.

Q.: Do you believe that they played a role in her illness?

Dr. Conibear: I don't know what "played a role" means.

Q.: Is it possible that her illness manifested that day based in part on the heat stress conditions?

. . .

Dr. Conibear: Not in my opinion.

(NH Tr. 3208-09)

  The unyielding stances of Dr. Tustin and Dr. Conibear as to whether heat stress caused the illnesses of CCA1 and LC2 on June 13 and 15, 2016, are not persuasive. Dr. Tustin stated humans have a range of tolerability for heat stress, depending on factors such as predisposing conditions and acclimatization (NH Tr. 546-47). The certitude of Dr. Tustin and Dr. Conibear, formed after reviewing the limited information available in the medical records, is at odds with their testimony that the symptoms of heat illness often mimic the symptoms of other conditions, and vice versa (NH Tr. 538-41, 3156).

See Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006), aff’d, 552 U.S. 312 (2008) (stating that “[a]n expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion[ ],” and dismissing negligent manufacturing claim where expert failed to explain the basis for his opinion that catheter burst radially, not longitudinally); SkinMedica, Inc. v. Histogen Inc., 727 F.3d 1187, 1210 (Fed. Cir. 2013) (evidentiary value of conclusory expert testimony is “unhelpful”; such opinions “lack any substantive explanation tied to the intrinsic record” and “without a more detailed explanation” as to how the expert “formed his conclusions,” they “deserve[] no weight”). . . . See Mosser Constr., Inc., 23 BNA OSHC 1044, 1046-47 (No. 08-0631, 2010) (finding expert’s opinion “unpersuasive” where the expert failed to explain factual details underlying it); Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1203-04 (No. 90-2304, 1993) (discounting expert’s testimony because he did “not include the factual basis and reasoning behind [his] opinion”), aff’d, 26 F.3d 573 (5th Cir 1994).

A.H. Sturgill Roofing, Inc., No. 13-0224, 2019 WL 1099857, at *5-6 (OSHRC Feb. 28, 2019).

  On the issue of whether heat stress or some other physical condition caused the illnesses of CCA1 on June 13 and LC2 on June 15, the Court accords no weight to the testimony of Dr. Tustin and Dr. Conibear. They testified previously in the national hearing that symptoms of heat illness can also be symptoms of other conditions. Neither doctor provided a substantive explanation for insisting on one diagnosis over the other.

  It is the Secretary’s burden to establish a condition or activity in the workplace presents a hazard to employees. Here, he did not prove the illnesses of CCA1 and LC2 were caused by exposure to heat stress (the Postal Service did not prove they were not caused by heat stress exposure, but it is not the respondent’s burden). It is not essential to the Secretary’s case, however, to prove a causal connection between the cited condition and the illnesses of the employees. The fact the incidents cited in the AVD may not have been caused by the cited condition or activity does not disprove the alleged violation.

Proof that a cited activity actually caused harm or necessarily could have caused harm under the precise physical conditions that happened to be present at the time of the violation, or at any other specific time, is not required. See Bomac Drilling, 9 BNA OSHC 1682, 1691-92 (No. 76-450, 1981) (consolidated) (“Under section 5(a)(1) case law, the ‘hazard’ that must be “recognized' is not a particular set of circumstances at a specific location and specific point in time but rather the broader, more generic or general hazard.”), overruled on other grounds by United States Steel Corp., 10 BNA OSHC 1752 (No. 77-1796, 1982); Brennan v. OSHRC, 494 F.2d 460, 463 (8th Cir. 1974) (Secretary need not prove general hazard was cause of the accident that gave rise to the citation); Beverly Enters., 19 BNA OSHC at 1171 (same).  

Quick Transp. of Arkansas, 2019 WL 33717, at *3.

2. Judge Ball’s 2014 Decision in United States Postal Service

  Even though the Secretary is not required to establish excessive heat caused the illnesses of CCA1 and LC2 in June of 2016, it is still his burden to prove that high temperatures or heat indexes on those days exposed San Antonio city carriers to the hazard of excessive heat. In support of his position, the Secretary cites Judge Ball’s 2014 decision finding a willful violation of § 5(a)(1) in United States Postal Service, 2014 WL 5528391. The Secretary states, “On facts similar to those presented here, Judge Ball found that there was ‘no real dispute’ that letter carriers in Independence, Missouri, were exposed to the hazard of excessive heat.” (Secretary’s brief, p. 21, n. 20)25 In this case, however, the Postal Service vigorously disputes the temperature or heat index on June 13 and 15, 2016, presented a hazard to San Antonio’s carriers, and consequently the record evidence differs markedly from the Independence case.

  As an unreviewed ALJ decision, the Independence United States Postal Service case is not Commission precedent. “[R]eliance on an unreviewed administrative law judge decision involving a citation under § 5(a)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(1) [is] misplaced. See Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) (unreviewed administrative law judge decision does not constitute binding precedent for the Commission).” TNT Crane & Rigging, Inc., No. 16-1587, 2020 WL 1657789, at *7 (OSHRC March 27, 2020). A case decided by the Commission last year involving a citation under § 5(a)(1) for exposure to excessive heat is, however, binding precedent for this Court.

3. The Commission’s Decision in A.H. Sturgill Roofing, Inc

  On February 28, 2019, the Commission issued its decision in a case involving an employee who collapsed at a worksite and subsequently died from complications of heat stroke after working on a roofing project. A.H. Sturgill Roofing, Inc., No. 13-0224, 2019 WL 1099857 (OSHRC Feb. 28, 2019). Commissioner (now Chairman) Sullivan, with then-Chairman MacDougall concurring, vacated two items alleging serious violations that had been affirmed by the ALJ in the underlying case. Commissioner Atwood dissented. Of interest here is Item 1 of the citation, alleging a serious violation of § 5(a)(1) for exposing employees “to the hazard of excessive heat from working on a commercial roof in the direct sun.” Id. at 2019 WL 1099857, at *1.

  The roofing project Sturgill was working on involved tearing off the old roof of a flat-topped bank building in Ohio so a new roof could be installed. The crew included three temporary employees.

One of the temporary employees was “MR,” a 60-year-old man with various preexisting medical conditions, including hepatitis C and congestive heart failure. It was the first day that MR was assigned to work at Sturgill. He began work that day at 6:30 a.m. and was tasked with standing near the edge of the roof where other employees brought him a cart full of cut-up pieces of roofing material that he then pushed off the roof into a dumpster below. The assignment of this work was intentionally made by Foreman Leonard Brown because it was MR's first day on the project. When MR began his work, the temperature was approximately 72°F with 84 percent relative humidity. There is no dispute that Brown encouraged all employees to utilize the immediate access to ice, water, rest, and shade, without fear of reprisal.

  At around 11:40 a.m., after other employees reported being concerned about MR to Brown and Brown himself observed him “walking like clumsy,” MR collapsed and began shaking. The temperature at that point was approximately 82°F with 51 percent relative humidity. Emergency medical personnel were summoned, and they took MR to the hospital where his core body temperature was determined to be 105.4°F. MR was diagnosed with heat stroke and died three weeks later. According to the coroner, his death was caused by “complications” from heat stroke.

Id. at 2019 WL 1099857, at *1-2. The Commission found the Secretary failed to establish “the existence of a hazard likely to cause death or serious physical harm.” Id. at 2019 WL 1099857, at *3.

4. Is “Excessive Heat” a Cognizable Hazard Under § 5(a)(1)?

  The Postal Service argues that in A.H. Sturgill, the Commission found “excessive heat” is not a cognizable hazard under the general duty clause. In her concurring opinion, Chairman MacDougall questioned the meaning of the cited hazard:

In this case, what is meant by “excessive heat?” Is it the heat index the judge formulated by adding degrees to the ambient temperature, or the heat index that would result from adding 10 degrees to the ambient temperature since the foreman said it felt about that much hotter on the roof, or some combination of factors perhaps set forth in OSHA’s website publication regarding “Occupational Heat Exposure”? To pose the question is to answer it. By defining the hazard merely as “excessive heat,” the Secretary has failed to point to any specific, concrete environmental conditions, and has instead effectively defined the hazard as a sliding scale of possibilities. This open-ended, moving target is not a cognizable hazard under the general duty clause as it provides insufficient notice to the employer of exactly what it is required to free its workplace from to protect its employees.

Id. at 2019 WL 1099857, at *15.

  In a footnote to the lead opinion, Commissioner Sullivan (now Chairman) agreed “with the concerns expressed by Chairman MacDougall in her concurring opinion in connection with defining the hazard in this case as ‘excessive heat.’” Id. at 2019 WL 1099857, at *7, n. 14. Contrary to the Postal Service’s argument, this agreement does not establish that a majority of the Commission conclusively found “excessive heat” is not a cognizable hazard under the general duty clause. This reference to defining the hazard is the only one in a lengthy footnote on foreseeability, and its vague reference to “the concerns expressed by Chairman MacDougall” is insufficient to constitute a dispositive conclusion that a citation under § 5(a)(1) alleging exposure to “excessive heat” will always fail due to fair notice to the employer.26 If Commissioner Sullivan’s agreement with Chairman MacDougall’s “concerns” constituted a majority opinion that “excessive heat” is not a cognizable hazard, there would be no need for a concurring opinion or for most of the analysis in the lead opinion. The Court determines the Commission has not held absolutely that “excessive heat” is not a cognizable hazard under the general duty clause. The cited hazard is, however, difficult to establish under A.H. Sturgill.

5. Scientific Basis of the NWS Heat Index Chart

  Dr. Tustin testified he relied on the NWS and OSHA heat index charts in concluding there was a heat stress hazard in each of the five Postal Service cases (NH Tr. 583-84). The NWS heat index chart is reproduced here:27

  Dr. Tustin testified he was curious regarding the origins of the color-coded risk levels on the chart. “I contacted somebody at the National Weather Service to find out where these caution levels came from, and that's the article that they provided to me. . . . I was interested. I'd seen these caution levels, and I wanted to find out . . . why the National Weather Service put these out there.” (NH Tr. 590) The article to which he refers is by a Dr. Steadman, who originally created a chart to show how hot it feels (the heat index) when a specific air temperature is paired with a specific relative humidity. The chart was included in an article written by Quayle and Doehring, a climatologist and meteorologist, respectively, from the National Climactic Center in Asheville, North Carolina, and published in the magazine Weatherwise in 1981 (NH Tr. 587-94).

  The Postal Service hired Rodman Harvey as a consultant in the five cases before the Court.28 The Court qualified Harvey to testify as an expert “in industrial hygiene, with specialized expertise in assessing the risk of exposure to excessive heat, based on his knowledge, skill, experience, training, and education.” (NH Tr. 2766)

  Harvey was asked about the phrase "Likelihood of Heat Disorders with Prolonged Exposure or Strenuous Activity” that appears on the NWS’s heat index chart.

  Q.: Based on your work with heat stress, what does prolonged exposure mean

Harvey: I'm not sure what's meant by that, exactly, by the National Weather Service.

Q.: And what is meant by strenuous activity?

Harvey: Again, I have not found a definition of that for the National Weather Service.

Q.: Are those terms explained in the OSHA compliance guidance?

Harvey: No, not that I was able to find.

(NH Tr. 2775)

  Harvey testified there are two different layers of information on the heat index chart: (1) “Along one axis are temperatures. Numbers along the other . . . side of the chart are relative humidity. And where they intersect is the corresponding heat index value for those different temperatures and relative humidities,” and (2) “The color coding that goes on top, the four different colors, and the likelihood of heat disorders with prolonged exposure or strenuous activity, and the definitions . . . for the four different colors: caution, extreme caution, danger, and extreme danger.” (NH Tr. 2776) Harvey stated the chart came from “the Steadman article,” which does not address “potential health effects associated with different heat index ranges” or “the likelihood of heat disorders with prolonged exposure or strenuous activity.” (NH Tr. 2777-78) In the article, Dr. Steadman was attempting to create a chart “that would provide the real feel temperature or the apparent temperature based on the combination of the actual air temperature and the relative humidity.” (Tr. 2778)

  Harvey testified he researched the issue to determine the historical or scientific basis for the second layer of information found in the heat index chart. “I was able to find a paper; it’s the oldest reference I can find that has . . . that language of dividing the heat index values up into different categories.” (NH Tr. 2782) It was the paper published in the journal Weatherwise, written by climatologist Robert Quayle and meteorologist Fred Doehring (NH Tr. 2782-83). Harvey could not determine from reading the article the scientific basis for correlating temperature ranges with specific heat syndromes. He stated, “[T]he authors don’t make any reference at all to this particular chart in general or specifically with the heat syndrome and they came to those conclusions.” (NH Tr. 2783-84) It is Harvey’s opinion that OSHA based its heat index chart on the chart found in the Steadman article and the paper published in Weatherwise (NH Tr. 2786).

  Harvey stated he believes the first layer of the heat index chart (“where they list the heat index values”) is scientifically based. “But layer two with the four different categories and the terms at the bottom of the graph, no, I don’t think that it is.” (NH Tr. 2786) He does not believe there is a scientific basis for OSHA’s conclusion that the risk level is “high” when the heat index is 103 to 115°F (NH Tr. 2786-87).

  The Postal Service is correct that, based on the testimony of Dr. Tustin and Rodman Harvey, a gap exists in the historical record that would explain the origin of the risk categories (caution, extreme caution, danger, extreme danger) that evolved from the Steadman article and were later included in the Weatherwise article. Neither Dr. Tustin nor Harvey could find a scientific basis for how the assigned values of caution, extreme caution, danger, and extreme dangers were determined. No supporting data is provided for why the levels of risk are attributed to their respective temperatures (NH Tr. 584-94, 2782-87). That is not to say no scientific basis exists for the risk levels but none was presented at the national hearing or the local hearings. Despite the emphasis placed on this issue at the national hearing, the Secretary does not address it in his brief. The Court finds, based on the record, no evidence was presented to establish the scientific basis for the risk categories depicted on the NWS heat index chart. This conclusion affects the weight given to the heat index chart exhibit but does not affect its admissibility. The reliability of the heat index calculations based on the temperatures and relative humidity is not disputed.

   In A.H. Sturgill, the Commission focused on the phrase “Likelihood of Heat Disorder with Prolonged Exposure or Strenuous Activity,” and found the Secretary failed

to show that any of the chart’s warnings applied to the conditions present that morning. . . . [F]or any of the warnings [(caution, extreme caution, danger, and extreme danger)] to have been applicable at the time of the alleged violation, the Secretary must show either that there was “prolonged exposure” to heat index values that fall within the chart or that the work involved “strenuous activity.” The record fails to establish either of these prerequisites.  

Id. at 2019 WL 1099857, at *3-4.  

6. Prolonged Exposure

  The Commission in A.H. Sturgill cited the failure to define “prolonged exposure” as a major flaw in the Secretary’s case.

As to the extent of exposure, the evidence shows that the heat index values were at most in the caution range for two of the five hours the crew worked on the day in question. Yet, we cannot determine if two hours in those conditions constitutes “prolonged exposure” because the Secretary does not establish what the NWS means by “prolonged exposure”—in fact, there is no record evidence on this issue.

Id. at 2019 WL 1099857, at *3-4.

   Both CCA1 and LC2 drove air-conditioned vans on the days at issue. Both were delivering on routes that were primarily park and loop, so they spent only 20 minutes or so driving during the day (Tr. 112, 143-47).

  CCA1 began work at 8:30 a.m. on June 13, 2016. He did not case mail that day, so he began delivering mail on Route 13 immediately (Exh. R-13, p. 1416). At approximately 4:00 p.m., he called Beacon Hill Station and informed his supervisor he was ill. CCA1 called 911 after speaking with his supervisor. (Tr. 84). Assuming CCA1 took his two 10-minute breaks and his 30-minute lunch break, he was walking outdoors for approximately 6 hours and 40 minutes.

  LC2 testified her start time was either 7:00 or 7:30 a.m. in June of 2016 (Tr. 145, 246). She started delivering mail on Route 30 at 8:30 a.m. (Exh. C-8, p, 1445). LC2 testified she usually did not take her two 10-minute breaks and “[s]ometimes but not usually” took her 30-minute lunch break. She does not recall if she took any of her breaks that day (Tr. 163). LC2 was walking outdoors for approximately 8 hours (without breaks) or 7 hours and 10 minutes (with breaks), until she called 911 at 4:30 p.m.

  From this schedule, the exposure of CCA1 and LC2 to temperatures at specific times can be extrapolated. Dr. Tustin created charts based on data from the NWS for June 13 and 15, 2016, in San Antonio, Texas (NH Exhs. C-144 & C-146; NH Tr. 415-16).

June 13, 2016

Local    Central    Temperature    Relative  Heat Index

Standard   Daylight         Humidity

Time    Time (CDT)

_________________________________________________________________

758    8:58 a.m.    80°F    84%      85°F

0958    10:58 a.m.    83°F    77%      90°F

1158    12:58 p.m.    88°F    70%      100°F

1358    2:58 p.m.    89°F    66%      101°F

1458    3:58 p.m.    93°F    57%      105°F

(NH Exh. C-302)

  On June 13, at 8:58 a.m., after CCA1 had been working for approximately 30 minutes, the heat index was 85°F, which is in the caution section of the chart. At 10:58 a.m., after CCA1 had been delivering mail for about 2.5 hours, the heat index was 90°F, which is in the extreme caution section. At 12:58 p.m., the heat index was 100°F, which is still in the extreme caution section. The next heat index recorded is 105°F, in the danger section of the chart, at 3:58 p.m., which is approximately the time CCA called 911.

June 15, 2016

Local    Central    Temperature    Relative  Heat Index

Standard   Daylight         Humidity

Time    Time (CDT)

_________________________________________________________________

758    8:58 a.m.    81°F    82%      87°F

0958    10:58 a.m.    87°F    62%      94°F

1158    12:58 p.m.    90°F    58%      99°F

1358    2:58 p.m.    92°F    53%      100°F

1458    3:58 p.m.    95°F    50%      105°F

(NH Exh. C-302)

  On June 15, at 8:58 a.m., after LC2 may have been working outside for approximately 30 minutes, the heat index was 87°F, which is in the caution section of the chart. At 10:58 a.m., after LC2 may have been delivering mail for about 3 hours, the heat index was 94°F, which is in the extreme caution section. At 12:58 p.m., the heat index was 100°F, which is still in the extreme caution section. The next heat index recorded is 105°F, in the danger section of the chart, at 3:58 p.m., approximately 30 minutes before LC2 called 911.