United States Postal Service
Willful extreme-heat violation affirmed
Apply this to your situation
This order from 2014 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Postal Service letter carrier returned from a five-week absence and delivered mail during an excessive heat warning without an acclimatization period. He reported symptoms to his supervisor on two consecutive days, remained on his route, and died from hyperthermia on the second day. The judge found that extreme heat was a recognized hazard and that feasible measures included acclimatization, effective training, work and rest practices, monitoring, and an emergency response program. The Postal Service possessed extensive heat-safety information but did not adequately implement it, respond to known heat-related illnesses, or adjust its production expectations. The violation was willful because management's conduct showed conscious disregard and plain indifference to employee safety. The maximum $70,000 penalty was assessed.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1)
- Outcome: Willful general duty clause violation affirmed; $70,000 penalty assessed.
- Key point: Possessing heat-hazard guidance did not satisfy the general duty clause when the employer failed to implement effective protections or respond to reported symptoms.
Full text (OSHRC public release)
Some personal identifies have been redacted for privacy purposes
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant, OSHRC Docket No. 13-0217
v.
UNITED STATES POSTAL SERVICE,
Respondent.
NATIONAL ASSOCIATION OF LETTER
CARRIERS (NALC),
Authorized Employee Representative
Appearances:
Charles W. Gordon, Jr., Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City,
Missouri,
For Complainant
Leigh K. Bonds, United States Postal Service, Western Area Law Office, Sandy, Utah
For Respondent
Manuel L. Peralta, Jr. Director-Safety Health, NALC, Washington, D.C.
Authorized Employee Representative
Before: Administrative Law Judge Peggy S. Ball
DECISION AND ORDER
I. Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 659(c) (“the Act”). In response to a report that a letter carrier for Respondent had died during
the course of his duties, the Occupational Safety and Health Administration (“OSHA”) initiated
an inspection of the United States Postal Service (“Respondent”) on July 24, 2012, at
Respondent’s worksite in Independence, Missouri, which included the location where the letter
carrier was found, as well as the Harry S. Truman Postal Station. As a result, OSHA issued a
Citation and Notification of Penalty (“Citation”) to Respondent alleging one willful violation of
Section 5(a)(1) of the Act—the general duty clause—with a proposed penalty of $70,000.00.
Respondent timely contested the Citation.
The trial took place on February 25–27, 2014, in Kansas City, Missouri. Both parties
have submitted post-trial briefs. After reviewing the parties’ respective briefs and the record, the
Court finds that Respondent committed a willful violation of the general duty clause by failing to
adequately protect its employees from the hazards associated with working in extreme heat.
II. Stipulations 1
The parties stipulated to the following:
-
Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health
Review Commission (“OSHRC”) by Section 10(c) of the Act.- Respondent the United States Postal Service (USPS) is a [sic] an independent
establishment of the executive branch of the Government of the United States with a principal
office and place of business at 14200 E. 32nd Street, Independence, MO 64055, and at all times
hereinafter mentioned, a workplace consisting of mail routes in Independence, MO. USPS is,
and at all times hereinafter mentioned was, engaged in providing mail services under a universal
service obligation.
- Respondent the United States Postal Service (USPS) is a [sic] an independent
-
Respondent is an employer within the meaning of the Act, and by virtue of the Postal
Employees Safety Enhancement Act, the OSH Act became applicable to the USPS in the same
manner as to any other employer. Pub. L. No. 105-241, 112 Stat. 1572–1573 (1998); see also 29
U.S.C. § 652(5).- On or about July 23 and 24 of 2012, USPS employed letter carrier employees to work
delivering mail on mail delivery routes in Independence, MO, including a route that included the
street address 3525 Cottage, Independence, MO, 64055, hereinafter “the Worksite”. - The parties’ stipulations reproduced herein can also be found in the parties’ Joint Factual and Legal Stipulations,
which was filed with the Court as Complainant’s Exhibit 63 (Ex. C-63).25. [redacted] was a 55-year old USPS letter carrier with over 27 years of experience. USPS
employed him at the Truman Station of the Independence Post Office.
- On or about July 23 and 24 of 2012, USPS employed letter carrier employees to work
-
On July 23, 2012, he returned to work after a five week absence for knee surgery and
annual leave delivering mail along the Worksite.- On that day, the Kansas City metropolitan area was under an excessive heat warning
issued from the national weather service [sic].
- On that day, the Kansas City metropolitan area was under an excessive heat warning
-
The National Weather Service defines an excessive heat warning as follows: “The
warning is used for conditions posing a threat to life or property.” The impact on this specific
warning stated,These prolonged hot and humid conditions will lead to an increased risk of heat related
stress and illness including heat exhaustion and heat stroke. These conditions are
especially dangerous to those working outside.- [redacted] returned to regular duty on July 23, 2012. This required him to work outside,
carrying mail and operating an un-air-conditioned delivery vehicle, from about 8:00 a.m. to
about 5:30 p.m.
- [redacted] returned to regular duty on July 23, 2012. This required him to work outside,
-
During the afternoon of July 23, 2012, the temperature was approximately 104 degrees F
and the humidity was approximately 24% and the heat index was 105 degrees F. -
At around noon, [redacted] spoke to his supervisor, Herb Harvey, on the telephone.
-
After this telephone call on July 23, 2012, [redacted]’s supervisor did not remove
[redacted] from his route. -
After this telephone call on July 23, 2012, [redacted] supervisor did not arrange for any
assessment or evaluation of [redacted]’s condition.
-
-
[redacted] returned to work the next morning, July 24, 2012. The weather was the same,
and the area was still under an excessive heat warning. During the afternoon, the temperature
was approximately 102 degrees F and the humidity was 28% and the heat index was 104 degrees
F. -
Again, [redacted] was on his route by 7:40 a.m. At around noon, he called Mr. Harvey.
-
After this telephone call on July 24, 2012, [redacted]’s supervisor did not remove
[redacted] from his route. -
After this telephone call on July 24, 2012, [redacted]’s supervisor did not arrange for any
assessment or evaluation of [redacted]’s condition. -
After this telephone call on July 24, 2012, [redacted]’s supervisor did not go into the field
to assess or evaluate [redacted]’s condition.319. After this telephone call on July 24, 2012, [redacted]’s supervisor did not send anyone
into the field to assess or evaluate [redacted]’s condition.
-
-
[redacted] collapsed on his route at about 2:50 p.m. His [redacted] temperature was
108.7°F when measured at the hospital. -
[redacted] died later that day as a result of hyperthermia.
-
The parties agree to the admissibility of Mr. Behrend’s emails identified on
Complainant’s Exhibit List. -
Before July 23, 2012, USPS had in its files a power point presentation that mentioned the
need to acclimate. It said:Persons working in either indoors or outdoors in high temperatures should take special
precautions including allowing 10–14 days to acclimate to high temperatures.- Before July 23, 2012, USPS also had an OSHA Fact Sheet that addressed the need to
acclimate. It provided:
Allow workers to get used to hot environments by gradually increasing exposure over a 5-
day work period. Begin with 50% of normal workload and time spent in the hot
environment and then gradually build up to 100% by the fifth day. New workers and those
returning from an absence of two weeks or more should have a 5-day adjustment period. - Before July 23, 2012, USPS also had an OSHA Fact Sheet that addressed the need to
-
USPS did nothing to acclimate [redacted] for his return to work.
-
USPS had in its files materials that said if a person is experiencing signs of heat induced
illness certain steps should be taken, including the need to “act immediately,” the need to move
the victim to a cool shaded area and give cool water, the admonition, “Don’t leave the person
alone,” and the need to ‘treat all heat disorders seriously.” The materials also acknowledge that
“sometimes people don’t notice their own heat stress symptoms. Their survival depends on co-
worker’s ability to recognize symptoms and seek medical help.” One document acknowledges
that “it’s essential that workers—and their supervisors—understand the risks and how to protect
against them.” -
As of July 23 and 24 of 2012, USPS did not have a program or procedure to do any of the
following:
Acclimatize letter carriers returning to work after an extended absence (i.e., five days or
more) to work in the heat.Required supervisors to go into the field and conduct in-person evaluations of letter carrier
complaining of heat induced symptoms. -
-
USPS knew before July 23 of 2012 that excessive heat could pose a risk to the safety and
health of its letter carriers, including, under some circumstances, the risk of serious injury or
death.429. USPS had the OSHA Fact Sheet—Protecting Workers from the Effects of Heat in its
possession prior to July 23, 2012.-
The documents that USPS has produced in this case numbered 1 through 00040174 are
genuine and authentic and no further foundation for the introduction of the documents into
evidence need be established. -
The report of the Jackson County medical Examiner, Mary H. Dudley, M.D., dated
August 22, 2012, concerning the death of [redacted], III is genuine and authentic and no further
foundation for introduction of the report into evidence need be established. Moreover, the
parties agree to the admissibility of this report. -
The weather and heat advisories and warnings of the National Weather Service for the
Kansas City metropolitan area for the period July 1, 2012, through July 24, 2012 are genuine and
authentic and no further foundation for introduction of the records into evidence need be
established. Moreover, the parties agree to the admissibility of these records.
III. Jurisdiction
The parties have stipulated that the Act applies and that the Commission has jurisdiction -
over this proceeding pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c). (Ex. C-63). Further, as
noted above, the parties stipulated that Respondent is an employer within the meaning of the Act,
and by virtue of the Postal Employees Safety Enhancement Act, the OSH Act became applicable
to the USPS in the same manner as to any other employer. Pub. L. No. 105-241, 112 Stat. 1572–
1573 (1998); see also 29 U.S.C. § 652(5).
IV. Findings of Fact 2
A. Structure of Post Office Operations
This case involves the operations of the Truman Station of the Independence, Missouri
Post Office. The United States Postal Service is divided into seven Areas, which are, in turn,
divided into Districts. The Truman Station is located in the Mid-America District, which
includes 8,000 employees and consists of most of Missouri and parts of eastern Kansas. (Tr.
492). The Mid-America District is comprised of multiple post offices, which are grouped for
- The information contained in this section does not necessarily constitute the entirety of the Court’s findings of
fact. Additional facts can be found in Section V, infra.5administrative purposes into stations. The Independence Post Office is comprised of three
stations—Truman, Englewood, and the Main Office. (Tr. 49). Post Offices, such as
Independence, are typically run by Managers of Post Office Operations (MPOOs or POOMs) or
by Postmasters, who report to the District Manager. (Tr. 125–26). Individual stations, such as
Truman, are run by Station Managers, who report to Postmasters. These stations also employ
floor supervisors, who handle day-to-day operations involving the distribution and collection of
mail. (Tr. 51).
The Mid-America District is presided over by District Manager Gail Hendrix. (Tr. 492).
During the week of the incident at issue, Steve Erbland served as the Acting MPOO over the
Independence Post Office. (Tr. 124). Mike Behrend served as the Officer-in-Charge or Acting
Postmaster in June 2012 and left sometime in July 2012. (Tr. 836). David Dyer was the Truman
Station Manager in July 2012 and Herb Harvey was his opening supervisor. Mr. Dyer and Mr.
Harvey supervise over 50 letter carriers, who are responsible for 38 separate mail routes. (Tr.
725, Ex. R-1 at 106).
The workday at Truman Station begins with Mr. Harvey ensuring that the mail is
properly prepared for the arrival of the letter carriers so the mail can be cased (sorted and put in
delivery order) and loaded into the mail trucks. (Tr. 722). Depending on the amount of mail,
this process can take an hour or more. (Tr. 729). Once the mail has been cased and loaded, the
letter carriers leave the station to perform their routes, which usually begin somewhere between
7:30 a.m. and 8:00 a.m. (Tr. 726). Routes are assigned based on a bidding system, and it is not
unusual for a letter carrier to have a route for a long period of time. (Tr. 728–29). In some
instances, letter carriers call in sick, which requires the opening supervisor to split up the absent
carrier’s route and distribute sections of that route to other carriers. (Tr. 724). Those sections
6
are typically given to letter carriers who are on a voluntary sign-up sheet, known as the OTDL,
or overtime desired list, which provides overtime opportunities to carriers on a 10- or 12-hour
basis. 3 (Tr. 726).
A standard workday for a letter carrier lasts from 7:00 a.m. to approximately 4:00 p.m.
(Tr. 727). However, a carrier who has been assigned overtime from the OTDL list is required to
return to the office by 5:30 p.m. (Tr. 727). This requirement is motivated by two things: (1)
collected mail needs to be placed on an outgoing truck before 6:00 p.m.; and (2) penalty
overtime, or double-time pay, kicks in after a ten-hour workday. (Tr. 727). In order to minimize
double-time pay, Mr. Harvey confers with his letter carriers at the beginning of the day to come
up with an estimate as to the amount of time required to complete each route. (Tr. 92, 735–36).
If a carrier needs to change the projected return time, he calls into the office between 12:15 and
1:15 p.m. to inform Mr. Harvey. (Tr. 736). If it is clear the carrier will not make the projected
time, Mr. Harvey has the option to either send additional help or authorize additional overtime.
(Tr. 738).
During the course of the workday, a carrier delivers mail through a combination of
walking and driving routes, known as relays. (Tr. 534–35). Some relays consist entirely of
indoor delivery to businesses, some allow for curbside delivery to CBUs (centralized box units),
and some require walking from house to house in a residential neighborhood. (Tr. 784–85). The
vehicles driven by most Post Office carriers are Grumman LLVs, or long life vehicles. (Tr. 66–
67). These trucks do not come with air-conditioning, though they are equipped with a fan in the
driver-side window. (Tr. 176). While on their route, letter carriers are authorized to take two
10-minute breaks and one 30-minute lunch break per day. (Tr. 83, 739–40). Throughout the
- The OTDL is a product of the bargaining unit contract between the union and management. (Tr. 725–26).
7day, carriers are also allowed to take so-called “comfort breaks”, which most people understand
to be bathroom breaks. (Tr. 83–84, 850).
B. Respondent’s Safety Program
The Mid-America District has a safety manager, Donna Goza, who is responsible for a
group of safety specialists and driving safety instructors. (Ex. C-68 at 19). Although she is the
top safety official for the Mid-America District, Ms. Goza testified that she does not have
authority over other managers and supervisors in the district. (Ex. C-68 at 38–39). For the most
part, Ms. Goza is responsible for disseminating safety-related information, including, as is
germane to the present case, heat safety tips, talks, posters, and other materials. 4 (Ex. C-68 at
28–29). Ms. Goza does not generate such materials herself, nor does she review the materials
prior to sending them along to MPOOs, Station Managers, and other members of management.
(Ex. C-68 at 96, 104).
During the time period at issue herein, Respondent’s heat safety program was, at best,
informal. Ms. Goza stated that she had not received heat safety training prior to 2013. (Ex. C-68
at 27). Thus, with respect to heat-related issues, Ms. Goza served mostly as a conduit for
information—she received information from various sources, including a member of the IT
Department, which she then transmitted to members of the management team with the
expectation that such information would be disseminated to the letter carriers. 5 (Tr. C-68 at 78–
88). Such information included safety tips and talks to be provided to letter carriers, as well as
- Some of the materials that Ms. Goza sent out to the management team included the following documents: (1) a
Power Point presentation entitled “Heat Stress”; (2) Preventing and Treating Heat Illness; (3) Summer Weather
Preparedness; (4) a color poster describing the signs of heat illness; (5) a safety talk entitled “Heat Stress”; and (6) a
heat safety fact sheet entitled “Water. Rest. Shade.” (Exs. C-28 to C-35). Many of these documents were sent out
multiple times by Ms. Goza, as indicated in the emails to which the foregoing documents were attached. (Id.). - The information contained in the emails referenced in footnote 3 was sent to managers listed on the ACE email
distribution list. (Ex. C-68 at 29–31, 69). Letter carriers are not assigned email addresses by Respondent, which
means that it is incumbent upon their managers and supervisors to provide them with safety information. (Ex. C-68
at 31).8weather warnings from the National Oceanic and Atmospheric Administration (NOAA). (Exs.
C-68 at 48–66, C-25). Notwithstanding the expectation that such information would be shared
with letter carriers, there was no meaningful system to follow up on the training provided. (Ex.
C-68 at 96, 154). For that matter, it is not clear that Ms. Goza had a clear enough understanding
of the materials such that meaningful follow up could take place. (Ex. C-68 at 27, 40, 104).
Once the materials were sent to management, it was expected that meetings would be
held to disseminate the information amongst the letter carriers. This was normally done through
what were known as “stand-up talks”. These stand-up talks were typically provided by a floor
supervisor, such as Mr. Harvey, or by the station manager, at the beginning of the day while
carriers were sorting and casing their mail routes. (Tr. 158, 770). According to Mr. Harvey, he
had provided numerous talks on heat and heat-related issues throughout the summer of 2012.
(Tr. 791–95). However, Ms. Goza testified that many of these talks were not properly
documented, and, according to the letter carriers, the information they received was fairly
basic—stay hydrated and seek shade. (Tr. 71–72, 84–85, 104, 172, 457, 789). This is consistent
with the testimony of Mr. Dyer and Mr. Harvey, who testified they had not received training on
Respondent’s policy for dealing with excessive heat but rather merely relayed information they
gleaned from emails, stand-up talks and documents to be posted or distributed. (Tr. 252–53,
258). In fact, Mr. Harvey testified that he relied, for the most part, on “common sense” when it
came to heat-related issues. (Tr. 258). This rather informal characterization of the training
provided by management stands in stark contrast to the voluminous amount and gravity of
material that had been provided to management by Ms. Goza. (Exs. C-28 to C-35).
9
C. July 23, 2012
On July 23, 2012, the National Weather Service had issued an excessive heat warning,
indicating that “prolonged hot and humid conditions will lead to an increased risk of heat related
stress and illness including heat exhaustion and heat stroke. These conditions are especially
dangerous to those working outside.” (Ex. C-63 at ¶ 8). In fact, the Kansas City metropolitan
area, of which Independence is a part, had been under such heat advisories for most of the
previous week, as well as many other days during the month of July. (Ex. C-25). On July 23,
2012, the temperature reached approximately 104° F, the humidity was approximately 24%, and
the heat index was 105° F. (Ex. C-63 at ¶ 10). Although this information was available to
station managers and supervisors, neither Mr. Dyer nor Mr. Harvey reviewed it. 6 (Tr. 252–58).
As noted above, [redacted] was a letter carrier for the Truman Station. July 23 was his
first day back at work after being absent for five weeks due to knee surgery. (Ex. 63 at ¶ 6).
[redacted] was on the OTDL, so Mr. Harvey assigned him an hour-and-a-half of overtime to go
along with his normal route. (Tr. 742–43). According to Mr. Harvey, he assigned [redacted] an
overtime route that consisted primarily of mounted (driving) delivery because of his recent knee
surgery. (Tr. 742). [redacted] completed his overtime route first—as most of the letter carriers
do—and then moved on to his regular route, which consisted of approximately 3–4 hours of
walking relays during the hottest part of the day. (Tr. 824–25).
Around noon on July 23, 2012, [redacted] called Mr. Harvey at the station and reported
he was not feeling well, that he was “hot, real hot”, and that he was not likely able to finish his
route in time. (Tr. 541–42, 824). It is at this point that the parties’ versions of the events of July
23 diverge. Through the testimony of Jay Bryant, the letter carrier sent out to assist [redacted],
- Ms. Goza testified that she regularly received weather reports and extreme heat advisories and that she forwarded
them along to members of management, but she also testified that she did not always do so. (Ex. C-68 at 52–54).10and K.W., [redacted]’s wife, Complainant asserts [redacted] had requested that he be able to
come back to the Truman Station and was told by Mr. Harvey that he needed to stay hydrated
and keep delivering. (Tr. 62, 485). Respondent, on the other hand, points out that Mr. Harvey
has consistently stated that he inquired as to how [redacted] was feeling and whether he needed
to return to the station, to which [redacted] responded that he did not. (Tr. 744–45; Ex. R-1).
In support of its position regarding the conversation between [redacted] and Harvey,
Complainant points to two events. First, Complainant introduced an email drafted by Steve
Erbland in response to a request from Gail Hendrix that he gather the “facts” regarding what had
occurred on the afternoon of July 23. (Ex. C-6). Specifically, Ms. Hendrix had asked Erbland,
“Did the carrier call the station Mon or Tues; and if so, what was the conversation with
Supervisor according to the Supervisor? Rather, than hearsay by the family, what are the facts?”
(Ex. C-6). Mr. Erbland responded: “The supervisor stated when the employee called the office
on Monday afternoon and said he was wanting to come back he told him he needed to keep
delivering and stay hydrated. I do know another [carrier] was sent from another area and
provided assistance on the route.” (Id.). Second, Complainant also points to testimony from
another carrier, [redacted], who testified that he also called in to report problems delivering on
July 23. (Tr. 96–97). [redacted] testified that in response Mr. Harvey berated him and accused
him of “laying down on him.” (Tr. 96–97). Given this interaction, Complainant contends that
Mr. Harvey’s characterization of his conversation with [redacted] is not credible.
Respondent, on the other hand, argues that Mr. Erbland’s account of Harvey’s
conversation with [redacted] was not based on a direct conversation between Erbland and
Harvey, but rather based on second-hand accounts from other managers or supervisors. (Ex. 67
11
at 115–17). Further, Respondent also points out that Mr. Harvey testified that he did not recall
making the statements that [redacted] has attributed to him.
The testimony of Mr. Bryant and Mrs. [redacted] regarding the statements made to them
by [redacted], who reported statements made to him by Mr. Harvey, are hearsay 7. However, the
Court still finds Mr. Harvey’s characterization of his conversation with [redacted] to be less than
credible. There are two separate accounts that undermine his version of events. First, the email
from Mr. Erbland to Ms. Hendrix, which was dated the day after [redacted] died, indicates that
Harvey, identified as “the Supervisor”, specifically stated that [redacted] needed to “keep
delivering and stay hydrated.” (Ex. C-6). While Mr. Erbland hedged and stated that he did not
recall whether he gathered this information directly from Mr. Harvey, the Court finds this
testimony hard to believe. Ms. Hendrix asked Mr. Erbland to specifically gather the facts about
the conversation “according to the Supervisor.” (Ex. C-6). Given the clear mandate from his
superior, and considering Ms. Hendrix’s predilection towards fact gathering, 8 it seems highly
unlikely that Mr. Erbland would have been so cavalier in his approach to this issue. Second,
[redacted] testified to a conversation that he had with Mr. Harvey on the same day (July 23rd),
wherein Mr. Harvey did not express the same level of concern as he testified to later with respect
to his conversation with [redacted], and, in fact, appeared to be hostile to [redacted]’ suggestion
- While Mr. Harvey’s statements qualify as an admission of a party-opponent under F.R.E. 801(d)(2), [redacted]’s
repetition of such statements to Mr. Bryant or decedent’s wife does not fit under any known exception. Contrary to
the arguments of Complainant’s counsel at trial, such statements do not fit under either the present sense impression
or the excited utterance exception to the hearsay rule. The present sense impression exception, F.R.E. 803(1)
requires that the statement must have been made while the speaker was perceiving the event or condition, or
immediately thereafter. See Cody v. Harris, 409 F.3d 853 (7th Cir. 2005). By the time he spoke with Bryant, it had
been almost 3 hours since [redacted] spoke with Harvey. He spoke with his wife even later. Nor does it fit under the
excited utterance exception under F.R.E. 803(2), because such statements were not precipitated by a “startling
event”. F.R.E. 803(2); see also Brunsting v. Lutsen Mountains Corp., 601 F.3d 813 (8th Cir. 2010). The Court does
not find that being told one cannot break free from their route constitutes a startling event; nevertheless, even if it
did, the Court does not find that a statement made three hours or more after the fact was made while under the
excitement such an event would engender. See U.S. v. Alexander, 331 F.3d 116 (D.C. Cir. 2003). - For further indications of this, see Section IV.F, infra. See also Exs. C-14, C-66.
12that he would be unable to complete his route in a timely manner. (Tr. 98–99). With respect to
this conversation, Mr. Harvey only testified that he did not recall speaking with [redacted]. (Tr.
769).
Based on the foregoing, the Court finds that, at the very least, Mr. Harvey was not
credible in his characterization of his conversation with [redacted] What is clear is that
[redacted] was having trouble carrying out his duties due to the heat and that, in response, Mr.
Harvey waited more than three hours to send someone out to assist him, which, in and of itself,
stands in stark contrast to the level of concern that Mr. Harvey purportedly expressed during his
conversation with [redacted] on July 23. (Tr. 54, 744–45). When Jay Bryant was sent out to
assist [redacted], it was not for the purpose of assessing him but, rather, for the purposes of
ensuring that the route was completed prior to the 5:30 p.m. cut-off time. (Tr. 66; Ex. R-1 at 27).
Once Mr. Bryant arrived to assist [redacted], he observed that [redacted] was walking
slowly and appeared to be struggling. (Tr. 55). He further observed that [redacted] looked really
hot and uncomfortable, that he was breathing heavily, and could not catch his breath. (Tr. 69–
70). Although [redacted] was reluctant to relinquish his duties, Mr. Bryant ended up completing
most of [redacted]’s remaining walking relays. (Tr. 63–69). Once they finished the remaining
relays, they returned to the station with [redacted] returning approximately 10–15 minutes after
Mr. Bryant.
When [redacted] returned home, he dragged his feet as he came into the house, took off
his uniform, and sat in the living room in his underwear, which, according to Mrs. W., was
unusual for him. (Tr. 483–84). He barely ate any dinner and fell asleep on the couch, which was
also unusual. (Id.). According to Mrs. W., he was still speaking slowly and had trouble choking
down his morning toast before he went to work the next day. (Tr. 489).
13
D. July 24, 2012
At the beginning of the day on July 24, 2012, Mr. Bryant reported to Mr. Harvey that he
did not expect to see [redacted] report to work because of what he observed at the end of the day
on July 23, 2012. (Tr. 753–54). Shortly thereafter, [redacted] arrived at work and was given his
regular route along with a mounted relay based on his being on the OTDL list. (Tr. 754–55).
The weather did not change much from the day before, as the area was still under an excessive
heat warning from the National Weather Service. During the afternoon, the temperature was
approximately 102° F, the humidity was 28%, and the heat index was 104° F. (Ex. C-63 at ¶ 14).
Around noon, [redacted] again called into the station and spoke with Mr. Harvey. (Tr.
755). He again stated that the heat was dragging him down, that he was tired and feeling sick,
and that he thought he would need some help. (Ex. R-1 at 28). Mr. Harvey testified that he told
[redacted] to “take care of himself” and that he would find out where everyone was and send
help later. (Tr. 756). This was the last contact that anyone at the Truman Station had with
[redacted] Approximately 3 hours later, [redacted] collapsed on his route at 3525 Cottage
Avenue in a residential neighborhood. (Ex. C-63 at ¶ 20).
[redacted] was discovered by Alan Leroy Earle, who was driving by at the time. Mr.
Earle described [redacted] as unconscious, in distress, and breathing rapidly. (Tr. 34). He had
blood coming from his head and he felt as if he was “burning up. He was very, very hot.” (Tr.
35). These observations were more or less confirmed by Officer Ricky Pope, who arrived in
response to the 911 call. (Tr. 40). [redacted] was taken to a nearby hospital where his body
14
temperature was measured at 108.7° F. (Ex. C-19). He died shortly after arriving at the hospital.
The coroner later determined that [redacted]’s death was caused by hyperthermia. 9 (Ex. C-19).
E. Other Incidents Involving Heat-Related Illness
i. [redacted]
[redacted] is currently a carrier for the Main Office of the Independence Post Office;
however, at the time of the incident in July 2012, he was working out of the Truman Station.
(Tr. 90–91). On July 23, 2012, [redacted] also suffered from a heat-related incident. (Tr. 91).
As per office policy, [redacted] called into the Truman Station around 1:00 p.m. and indicated to
Mr. Dyer that the amount of work in his route was going to take him past the 5:30 p.m. cutoff
time. (Tr. 96). This was a concern because [redacted], amongst other carriers, had been told that
they would be disciplined for coming in past the 5:30 p.m. cutoff time, at which point
Respondent was obligated to pay penalty (or double) overtime. Dyer told [redacted] that they
did not have extra help at that time and that [redacted] should call in again at 2:00 p.m. with
another update. (Tr. 97). When [redacted] called in around 2:00 p.m., he indicated that he was
still behind schedule, that he was in pain and that his stomach was upset. 10 (Tr. 98). In response,
[redacted] testified that Mr. Harvey said, “[Y]ou must be laying down on me. . . . You must be
slumped over the wheel to be going that slow.” 11 (Tr. 98). Around 5:00 p.m., another letter
- The coroner’s report also indicates that a significant contributing cause was from an acute myocardial infarction,
also known as a heart attack. (Ex. C-19). Dr. Parmet testified that this was likely the result of [redacted]’s blood
thickening due to the excessive heat. (Tr. 406). - In this case, as in others, Respondent makes much of the fact that [redacted] did not specifically say that he was
suffering because of the heat. The problem with this argument, as will be shown later, is that it illustrates
Respondent’s failure to properly implement a heat stress management program and training regime that equips
managers and supervisors with the tools necessary to identify signs and symptoms of heat-related illness. - [redacted] testified that he believed he was on speakerphone and that Mr. Dyer was influencing the course of the
conversation because he had a hard time hearing Mr. Harvey and because the tone of the conversation was
uncharacteristic of Mr. Harvey. (Tr. 97–99).15carrier was sent out to help [redacted] finish the route so that he could return by the 5:30 p.m.
cutoff.
After he finished his shift and returned home, [redacted] still felt ill, so his wife made him
go to the emergency room. (Tr. 102). After running a number of tests, the hospital determined
that he had heat distress and kept him overnight for observation. (Tr. 102). [redacted] called in
to work the next day through the ERMS system, which is an 800 number for post office workers
to report an absence. (Tr. 111). [redacted] does not recall telling Mr. Harvey or Mr. Dyer that he
had been to the hospital for heat-related illness; however, he does remember speaking with the
Postmaster, Pat Clark, who was at the Truman Station when he returned to work a few days later.
(Tr. 113). He also recalled that, while in the hospital, someone from the office called his cell
phone to ask whether he would be reporting to work the next day to which his wife responded
that he was in the hospital. (Tr. 111).
ii. [redacted]
On July 24, 2012, the day that [redacted] passed away, [redacted] also suffered from
heat-induced illness. (Tr. 148). At some point in the afternoon, Mr. Harvey contacted [redacted]
to see if he was available to help complete the remainder of [redacted]’s route. (Tr. 771). At the
time of the call, [redacted] was feeling nauseous and light-headed. (Tr. 148–50). As he was
speaking to Mr. Harvey on the phone, [redacted] threw up. (Tr. 151, 771). Mr. Harvey stated
that [redacted] did not sound good, but told him to continue his route and to get back in time.12
(Tr. 151). Nobody was sent to check on [redacted], nor was he given any instruction as to how
to address his symptoms. (Tr. 151–52).
- As noted above, Respondent points out that [redacted] did not state that he was suffering specifically from heat-
related issues; however, the Court finds that [redacted], as well as other letter carriers’, failure to identify their
symptoms as being specifically related to the heat does not absolve Respondent of its responsibility to monitor the
safety and health of its employees, especially in light of the NWS extreme heat warnings on the days in question.16When [redacted] returned to the Truman Station, he was not feeling well. (Tr. 152–53).
Initially, Mr. Harvey was going to send him back out to complete [redacted]’s route, but he
reconsidered after looking at [redacted]. (Tr. 153, 772). According to [redacted], Mr. Dyer then
said, “No. [redacted] is going back out. Give him a bottle of water.” (Tr. 153–54). [redacted]
went back out to complete the route. (Tr. 154–56; Ex. R-1 at 67). Respondent contends that Mr.
Dyer could not have said this because he was at the hospital until 6:00 p.m., which means that he
could not have been at the station when [redacted] returned. (Tr. 684). This is not exactly true,
as Mr. Dyer returned from the scene of the accident to switch cars at the Truman Station. (Tr.
682). Mr. Dyer testified that he did not recall going back into the office, but none of
Respondent’s witnesses specifically rebutted [redacted]’s testimony that a conversation took
place between him and Mr. Dyer. (Tr. 683). [redacted]’s and Mr. Harvey’s testimony was
consistent regarding their particular interaction. Someone sent [redacted] back into the field
because there is a record in the Daily MSP Route Report, which tracks delivery points along a
given route. (Tr. 776, Ex. R-1 at 67). Given [redacted]’s stated condition, the Court finds that it
is unlikely that he volunteered to go back out.
iii. [redacted]
On July 19, 2012, five days before [redacted]’s death, letter carrier [redacted] had to be
taken to the hospital due to heat-related illness. (Tr. 174). On that day, [redacted] reported to his
supervisor that he had stopped sweating, was having a hard time breathing, and was not feeling
well. (Tr. 174–75). [redacted] testified that he told his supervisor that he would continue
working and switch from walking relays to driving relays in order to make it easier on himself.
(Tr. 174). Nobody from the station went out to check on [redacted], nor were any steps taken to
evaluate his condition. (Tr. 174–176). After his conversation with management, [redacted]
17
called his wife, who contacted his doctor. (Tr. 178). [redacted] was directed to go to the hospital
immediately, whereupon he was diagnosed with acute renal failure related to heat. (Tr. 180).
Respondent notes that [redacted] was not disciplined for leaving his route.
In addition, a day before [redacted]’s incident, [redacted], a letter carrier at the Truman
Station, reported feeling ill due to heat while working at the station. She was taken away in an
ambulance. (Tr. 543; Ex. C-68 at 213).
F. Management Discussions of Heat and Sick Leave Usage
With the exception of Harvey Colston, who was called by Respondent, each of the letter
carriers who were called to testify stated that they were given the message that heat was not an
excuse for a delay in delivering the mail. (Tr. 73, 104, 159, 169, 834). This stands in stark
contrast to the numerous documents distributed to Respondent’s management team by
Respondent’s safety manager and to the testimony of both Dr. Thomas Bernard and Dr. Alan
Parmet. (Exs. C-28 to C-35). Respondent attempts to explain that this message was limited in
scope and taken out of context—Mr. Behrend and Mr. Harvey testified that, with respect to the
admonition that “heat is no excuse”, they were merely speaking about the impact of heat on
employees who perform their work indoors. (Tr. 798, 847). The Court is not convinced. In
addition to the testimony of the letter carriers, there were a number of memos and emails
exchanged amongst members of management that illustrate Respondent’s attitude towards heat’s
effect on performance:
• Mr. Behrend, who served as the Officer-in-Charge or Acting Postmaster in June
2012, and left sometime in July 2012, testified in a sworn statement that District
Manager Gail Hendrix and Acting Senior MPOO Steve Erbland told him numerous
times that “heat does not matter”. (Tr. 245–46).
18
• This message was conveyed to managers working under Mr. Behrend, as well as to
letter carriers. (Tr. 261–64; Exs. C-9 at 1–2, C-10 at 1–2).
• Notwithstanding the information available at the time, Ms. Hendrix characterized as
an assumption the concept that heat/weather creates performance concerns.
Specifically, she wrote to her managers:
Assumption: Weather causes performance concerns. . .
Reality: We live in the Midwest and we experience variation in weather.
Reality: Our REGULAR CARRIERS have at least 10+ years [sic]
experience. They are professional letter carriers, and we provide uniform
allowances to support their needs in dealing with variation in weather
conditions. We have provided and paid for time to train letter carriers,
which includes training for variation in weather conditions. We have
invested in their success. We should expect a return on our investment.
(Ex. C-14 at 2; Tr. 499–502).
This point of view is further reflected in the correspondence between managers regarding
the use of sick leave. Instead of viewing the correlation between the extreme heat conditions and
the use of sick leave as a safety and health problem, management perceived the problem as one
of abuse and its resultant impact on production. For example, on July 2, 2012, Mr. Behrend
wrote the following email to his boss, Eric Henry, who reported directly to Gail Hendrix:
Boss,
I am going to need your help as some of the employees in Independence seem to
just give up on delivering mail when it’s hot out. It has been brought to my
attention that the employees in Independence were not abusing sick leave until 2
weeks ago when the hot weather set in. I will assure you that attendance will be
addressed with all employees failing to meet a regular schedule. However, this is
costing the company money we don’t have and I know this.
(Ex. C-9 at 1–2). This message, albeit in slightly different form, was then relayed to the
managers under Mr. Behrend’s supervision. (Ex. C-10 at 1–2).
Later that month, after [redacted] had to be taken to the hospital, Anthony Mitchell, the
president of the local letter carrier’s union, expressed his concern that Respondent was going to
19
see more carriers getting sick if Respondent continued to work them long hours in extreme heat.
(Tr. 434–36; Ex. C-12). This prompted Mr. Behrend to write an email to Mr. Henry, which
characterized Mr. Mitchell’s statement regarding the impact of heat upon sick leave as a threat of
a work slowdown. (Ex. C-12).
Most of the correspondence between members of Respondent’s management team
reflects a similar tone of suspicion regarding the use of sick leave and the impact of its use on the
bottom line. (Exs. C-6 to C-14). The one exception to this was an email drafted by Donna Goza.
On July 20, 2012, Ms. Goza wrote an email to managers in the Mid-America District, which
stated, “We’ve had six (6) reported incidents involving the current weather condition—are safety
talks being given to your employees?” (Ex. C-68 at 227–30). Based on the evidence and
testimony at trial, it does not appear that Ms. Goza’s inquiry was acted upon or heeded until after
[redacted] collapsed on his route four days later.
V. Discussion
A. Citation 1, Item 1
Complainant alleged a willful violation of the Act in Citation 1, Item 1 as follows:
Section 5(a)(1) of the Occupational Safety & 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 in that
employees were exposed to recognized hazards related to working outside during periods
of excessive heat.
a) On July 24, 2012, at job sites located on mail routes in Independence, Missouri, with
the afternoon temperature in excess of 100 degrees F and the job sites under an
excessive heat warning from the National Weather Service, the employer exposed
employees to the recognized hazard of excessive heat during mail delivery. This
included a letter carrier who had just returned to work after a five week absence and
was not acclimated to the heat. Beginning at approximately 7:30 a.m., that employee
worked in the heat walking a mail route outside delivering mail from an enclosed
vehicle without air-conditioning. At approximately, [sic] 12:15 p.m., the employee
reported to his supervisor symptoms of heat induced illness. At approximately 2:50
p.m., the employee collapsed while walking a mail route. At that time, the
20
temperature was 102 degrees F, the humidity was 28%, and the heat index was 104
degrees F. The employee’s core body temperature on arriving at the hospital was
108.7 degrees F, and he died as a result of his exposure to excessive heat. This
included another letter carrier who reported symptoms of heat induced illness that day
but was required to finish his route.
b) On July 24, 2012, at job sites located on mail routes in Independence, Missouri, with
the afternoon temperature in excess of 100 degrees F and the job sites under an
excessive heat warning from the National Weather Service, the employer exposed
employees to the recognized hazard of excessive heat during mail delivery. This
included a letter carrier who had just returned to work after a five week absence and
was not acclimated to the heat. Beginning at approximately 7:30 a.m., that employee
worked in the heat walking a mail route outside delivering mail from an enclosed
vehicle without air-conditioning. At around 12:00 noon, the employee called his
supervisor and reported symptoms of heat induced illness and asked to go home; the
employer required the employee to continue working in the excessive heat. That
afternoon, the temperature was 104 degrees F, the humidity was 24%, and the heat
index was 105 degrees F. The next day the employee returned to work in the same
conditions and collapsed at approximately 2:50 p.m. while walking a mail route. The
employee’s core body temperature on arriving at the hospital was 108.7 degrees F,
and he died as a result of his exposure to excessive heat. This included another letter
carrier who called into his supervisor around 2:00 p.m. on July 23 and reported
feeling ill because of the heat. He was pressured to continue working and was finally
relieved at around 5:00 p.m. After his shift he reported to the hospital emergency
room and was admitted with heat induced illness.
Among other methods, feasible and acceptable means of hazard abatement include:
(i) acclimatizing employees returning to work after an extended absence to working in
the heat;
(ii) training supervisors and other employees in the proper response to employees
reporting heat induced illness symptoms, which includes stopping work, getting to a
cool place, and providing help, evaluation, and medical assistance;
(iii)requiring trained supervisors to go into the field and conduct in-person evaluations of
employees complaining of heat induced symptoms, arranging for medical attention or
other assistance as necessary;
(iv) establishing work rules and practices that encourage employees to seek assistance and
evaluation when experiencing heat stress symptoms; and,
(v) establishing a heat stress management program which incorporates guidelines from
the ACGIH’s threshold limit values and biological exposure indices and/or the
National Institute for Occupational Safety and Health (NIOSH) document, “Working
in Hot Environments;” such a program should be tailored to the particulars of the
employer’s work, and may include, the following:
- Providing adequate amounts of cool (50 degrees to 60 degrees F), potable water
and electrolyte replacements (specific recommendations should be made by21medical consultation) in the work area and require employees to drink frequently,
e.g., one cup every 20 minutes.
2. Provide a work/rest regimen.
3. Training employees about the effect of heat-related illness, how to report and
recognize heat-related illness symptoms and how to prevent heat-related illness.
4. Including a heat acclimatization program for new employees or employees
returning to work from absences of three or more days.
5. Providing a cool, climate-controlled area where heat-affected employees may take
their breaks and/or recover when signs and symptoms of heat-related illnesses are
recognized.
6. Providing shaded areas where heat-affected employees may take their breaks
and/or recover on worksites that don’t have access to climate-controlled areas.
7. Providing specific procedures to be followed for heat related emergency situations
and procedures for first aid to be administered immediately to employees
displaying symptoms of heat-related illness.
8. Using dermal patches for monitoring core temperature to better identify when
workers need to be removed from the work area.
9. Allowing employees to modify their work schedules in the summer months to
begin an hour to two hours earlier, and end their shift one to two hours earlier.
10. Monitoring the National Weather heat advisories or alerts and physically checking
on carriers in the field during heat advisories or alerts.
See Citation and Notification of Penalty at 6–8.
B. Complainant Established a prima facie Violation of the Act
To establish a prima facie violation of Section 5(a)(1) of the Act, also known as the
general duty clause, Complainant must prove by a preponderance of the evidence that: (1) a
condition or activity in the workplace presented a hazard to employees; (2) the employer or its
industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm;
and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.
Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996); see also 29 U.S.C. §
654(a)(1). The evidence must also show that the employer knew or with the exercise of
reasonable diligence, should have known of the hazardous condition. Otis Elevator Company,
21 BNA OSHC 2204 (No. 03-1344, 2007).
For the most part, it appears that Respondent does not contest the existence of a
violation of the general duty clause—almost all of Respondent’s brief is directed towards the
22
willful characterization. That said, as Respondent has not specifically conceded the point, the
Court shall address each of the elements of Complainant’s prima facie case.
i. Letter Carriers Were Exposed to the Hazard of Extreme Heat
There is no real dispute over the fact that [redacted], as well as the other carriers in the
Independence Post Office, were exposed to extreme heat on July 23 and 24 and that such heat
was a hazard. The fact that heat was a hazard on those particular days is supported by
Respondent’s own safety materials, the National Weather Service reports, and the expert
testimony of both Dr. Bernard and Dr. Parmet.
The National Weather Service issued warnings for the Kansas City Metropolitan area,
which includes Independence (and expressly lists it as such), indicating that “dangerously hot
temperatures will occur . . . in which heat illnesses are likely and can be life threatening.” (Ex.
C-17 at 6). Those warnings were supported by the actual temperatures on those two days, as the
heat indices for July 23 and 24 were 105° F and 104° F, respectively. See Post Buckley Schuh &
Jernigan, Inc., 24 BNA OSHC 1155 (Docket No. 10-2587, 2012) (ALJ) (finding that
temperatures in the range of 84° F with 63% humidity to 99° F with 29% humidity were in the
range where an individual could suffer serious physical harm or death).
According to Dr. Parmet, a person’s normal core body temperature is approximately
98.6° F. (Tr. 449). In order to regulate that temperature, the body dissipates heat through
sweating. (Tr. 449–51). However, when temperatures reach into the high 90’s, the body begins
to have trouble keeping its core temperature at a normal level. (Tr. 449–451). This is
particularly pronounced when an individual has not properly acclimated to working in hot
temperatures because “his skin is not trained to lose heat as efficiently” as someone who has
been continually working in a high heat environment. (Tr. 467). Dr. Parmet testified as to the
23
effects of such high heat on the body; specifically, he mentioned that the blood thickens, making
it more difficult for the body to process oxygen, and that at a certain temperature, the proteins in
the blood can be permanently altered, like an egg in a frying pan. (Tr. 462). Both doctors
testified that prolonged exposure can lead to heat exhaustion, heat stroke, and even death. (Tr.
225–26, 463).
Using metrics from the ACGIH and NIOSH, Dr. Bernard concluded that the temperatures
on July 23 and 24, 2012, were a hazard to both acclimated and unacclimated letter carriers
alike. 13 (Tr. 204–13). This stands to reason, since at least three individuals on those two days
suffered from heat-related illnesses—[redacted], [redacted], and [redacted] Based on the
foregoing, the Court finds that Respondent’s employees were exposed to the hazard of extreme
heat.
ii. Respondent and its Industry Recognized the Hazard
Respondent stipulated that it recognized the hazard heat posed to its letter carriers. (Ex.
C-63 at ¶ 28). The documents distributed by Ms. Goza clearly identify this fact and discuss the
warning signs and symptoms of heat stroke and heat exhaustion, and also identify precautionary
measures that should be taken to prevent heat-related illness. (Ex. C-28 to C-35). The
stipulations, coupled with the numerous documents in Respondent’s possession, establish that
Respondent recognized the hazard posed by excessive heat. See General Land Dynamics Systs.
Div., Inc., 15 BNA OSHC 1275, 1285 (No. 83-1293, 1991) (safety bulletins issued by employer
underscored actual recognition of the hazard).
- Even though he used a more complex analysis than would be expected of Respondent, Dr. Bernard pointed out
that the National Weather Service warnings would serve as a sufficient proxy to determine when heat posed a hazard
to letter carriers. (Tr. 214–15).24In addition, the industry clearly recognized the hazard of excessive heat. The CDC-
NIOSH documents admitted into evidence clearly indicate that the industry recognizes working
in hot temperatures constitutes a hazard. Further, both Dr. Parmet and Dr. Bernard testified that
industry in general has considered heat to be a hazard for at least 30 years, if not longer. (Tr.
193–96, 221–24, 451–53).
iii. The Hazard was Likely to Cause Death or Serious Physical Harm
As with the previous element, Respondent has stipulated that excessive heat exposure is
likely to cause death or serious physical harm. (Ex. C-63 at ¶ 28). One of the materials that was
sent to the management group by Ms. Goza stated: “ACT IMMEDIATELY! If not treated heat
exhaustion can advance to heat stroke or death!” (Ex. C-30 at 22). Another document, a Power
Point presentation created by Respondent, stated that “although heat-related illness and death are
readily preventable, exposure to extremely high temperatures caused an annual average of 381
deaths in the U.S.” (Ex. C-30 at 6). Further, the hazard at issue in this case caused the death of
[redacted], as well as other serious physical harm, such as [redacted]’s acute renal failure. See
Marquette Cement Mfg. Co., 568 F.2d at 910 (“The fact that the activity in question actually
caused death or serious injury constitutes at least prima facie evidence of likelihood.”). Thus,
the Court finds that Complainant has established that the heat on July 23 and 24, 2012 was likely
to cause death or serious physical harm.
iv. Feasible Means of Abatement Existed to Eliminate or Materially
Reduce the Hazard
To prove a violation of the general duty clause, Complainant must “specify the particular
steps a cited employer should have taken to avoid citation, and . . . demonstrate the feasibility
and likely utility of those measures.” Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257,
1268 (D.C. Cir. 1973). As part of his burden, Complainant “must define the hazard in a manner
25
that gives the employer fair notice of its obligations under the Act by specifying conditions or
practices which are within the employer’s control.” Mark A. Rothstein, Occupational Safety and
Health Law 290 (2013) (citing Beverly Enterprises, Inc. v. Herman, 119 F. Supp. 2d 1 (D.D.C.
2000)). A feasible abatement measure is one that will eliminate or materially reduce the hazard.
See Arcadian Corp., 20 BNA OSHC 2001 (No. 93-0628, 2004). The Court finds that
Complainant has met his burden.
In the Citation, Complainant identified five primary abatement methods, one of which
involves a heat stress management program that requires the implementation of specific
protocols once the temperature reaches a point where excessive heat becomes a hazard. This is
important from the standpoint of feasibility—the proposed abatement measures require an
overarching program; but the actual implementation of such program is, for the most part,
limited to situations where heat is a hazard. As Dr. Bernard testified, this determination does not
require the same level of academic or scientific rigor he employed to determine threshold limit
values for heat exposure; instead, Respondent can rely on the National Weather Service reports
and advisories, which it already receives and distributes to members of management, to
determine when the heat stress management protocol should be implemented. (Tr. 214–15). The
Court shall address each of the proposed abatement methods.
First, Complainant proposed a program of acclimatization for new employees and
employees returning to work after an extended absence. Acclimatization or acclimation is the
process by which an employee is reintegrated into the work environment in a manner which
allows the body to be better equipped to regulate its temperature through sweating and salt
retention. (Tr. 453–54). Specifically, NIOSH recommends gradually increasing an employee’s
workload/exposure to heat over the course of the first week and allowing frequent breaks. (Ex.
26
C-22 at 2). Not only has this been recognized as a feasible abatement method through NIOSH
since 1986, but Respondent recognized it as well. In one of the documents distributed by Ms.
Goza, a Power Point presentation entitled “Heat Stress”, Respondent addressed the need for
acclimatization by stating, “Persons working in either indoors or outdoors in high temperatures
should take special precautions including allowing 10–14 days to acclimate to high
temperatures.” (Ex. C-30, C-63 at ¶ 23). Notwithstanding the existence of this document, which
was created by Respondent, Respondent admits that it did not have an acclimatization program.
Both Dr. Bernard and Dr. Parmet testified that the need for an acclimatization program is
well-recognized across all industries. (Tr. 316–17, 455–56). Further, the extent to which
Respondent specifically recognized this need and produced materials extolling the virtues of
such a program is sufficient to find that such an abatement method is feasible.
The second and third abatement methods propose a training program that trains both
supervisors and employees in the proper response to reports of heat-induced symptoms and
requires supervisors specifically to go into the field to conduct in-person evaluations of
employees reporting such symptoms. Significantly, Dr. Bernard testified one of the early
symptoms of heat stroke is confusion and poor decision-making ability, which compromises the
sufferer’s ability to self-assess. (Tr. 229) As with the first proposed abatement method,
Respondent had a number of tools at its disposal that not only recognized the importance of a
heat-stress management program, but also recommended measures, such as training, that should
be taken in order to prevent heat-related illness. (Exs. C-28 to C-35). The problem, however,
was that the training was deficient at best. The letter carriers who testified at trial all stated they
had either received no training whatsoever, or that the training they received was limited to an
admonishment to hydrate or find shade. (Tr. 71–72, 84–85, 104, 172, 437). This was
27
particularly evident in the case of Mr. Bryant, who came to assist [redacted] on July 23, 2012.
Mr. Bryant testified that he did not have proper training in how to address or even identify signs
and symptoms of heat stress in a fellow letter carrier. (Tr. 71). Further, this lack of training is
similarly evident in the interactions involving Mr. Dyer, Mr. Harvey, [redacted], and [redacted],
none of which illustrate the type of hands-on approach suggested in both NIOSH and
Respondent-generated literature.
Although Respondent proffered evidence that safety talks were given on the topic of
heat-related illnesses, there is very little evidence to indicate what was discussed and virtually no
evidence of a robust training regimen. Ms. Goza stated that she does not follow up with
management to ensure the quality of the training; in fact, as noted above, she had very little
training herself prior to the incident involving [redacted]. (Tr. C-68 at 27, 96, 104). Further,
many of the documents sent to the management team from Ms. Goza were not extensively
reviewed for quality control or compliance, nor were they systematically compiled as part of an
overarching training program; rather, Ms. Goza received the documents, briefly reviewed them,
and then forwarded them via email. (C-68 at 76–88). The effect of this ad hoc program is
evident in the testimony of Mr. Harvey, who stated that he premised most of his training and
understanding of heat hazards as “common sense.” (Tr. 258). Dr. Bernard concluded, and the
Court agrees, that the implementation of a training program is a feasible means of abatement and
that the existing program of training is deficient.
The fourth proposed abatement method is to establish work rules and practices that
encourage employees to seek assistance and evaluation when experiencing heat stress symptoms.
As part of a comprehensive heat-stress management program, this abatement method is an
affirmation of the training that both employees and managers should receive. The problem,
28
however, is that letter carriers had been given the inconsistent message that heat was not an
excuse for delays in delivery. In response, many of the letter carriers felt as if they had to “work
through it” in order to ensure that they complied with their expected delivery times and the 5:30
p.m. cutoff time. (Tr. 104, 156). Respondent points out that there was not a single case of
discipline issued for failure to meet the 5:30 p.m. cutoff time; however, based on the testimony
of the letter carriers, the Court finds that the threat of such discipline was real and influenced
employee behavior in such a way as to place them in a situation where they might disregard
symptoms of heat-related illnesses. This much was evident in the testimony of [redacted], who
testified that he was told to work through the discomfort and then file a grievance after the fact.
(Tr. 156). Ultimately, the Court finds that this is a simple abatement method to implement, as it
is a necessary corollary to the training that needs to be provided to managers and employees
alike.
Finally, Complainant proposed that Respondent should establish a heat stress
management program, which would be tailored to the particulars of Respondent’s workplace and
incorporate NIOSH guidelines. Complainant initially proposed ten elements to include as a part
of this program; however, based on Dr. Bernard’s testimony, Complainant only addressed eight
of them in his brief. They are: (1) providing adequate amounts of cool water; (2) providing a
work/rest regimen; (3) training employees about the effects of heat-related illness; (4) including
a heat acclimatization plan for new employees and employees returning from extended absences;
(5) providing a cool, climate-controlled area for heat-affected employees to take breaks; (6) in
the absence of a climate-controlled area, providing a shaded area for employees to take breaks;
(7) providing specific procedures to be followed in a heat-related emergency; and (8) monitoring
the National Weather Service heat advisories and alerts and checking on carriers in the field
29
during heat advisories or alerts. Items (3), (4), and (7) have been addressed above, so the Court
will limit its discussion to the remaining items.
The first item, providing adequate amounts of cool water, is something that Respondent
did. Respondent provided a cooler full of bottled water that was available for the employees.
(Tr. 731). According to most sources, however, merely providing water is not sufficient. (Ex.
C-22 at 2). NIOSH provides that water should be drunk frequently (approximately 1 cup every
15 to 20 minutes) and that reminders should be given to drink water because extreme heat can
cause an insufficient thirst drive. (Ex. C-21 at 6). In Post Buckley, the court found that a heat
stress management program was deficient because, although the respondent provided water, it
did not specifically encourage employees at risk to drink it in a purposeful way. See Post
Buckley, 24 BNA OSHC 1155. Although Respondent’s employees perform their work
unsupervised, this item could easily be implemented through a more robust and meaningful
training program.
The second item requires providing a work/rest regimen. A work-rest regimen mitigates
the impact of excessive heat by implementing cycles of work and rest throughout the course of
the day. (Tr. 330–31; Ex. C-21 at 5). Such a work cycle allows the body to rid itself of excess
heat, slows the production of internal body heat, and provides greater blood flow to the skin.
(Ex. C-21 at 5). Respondent did not have a work/rest regimen; rather, employees exposed to
excessive heat were expected to rely on the same break regimen that was in place throughout the
year regardless of weather—two 10-minute breaks and one 30-minute lunch break. This is
clearly insufficient, as it does not take heat into consideration. Instead, it places the onus on the
employee to make the determination as to when they should take a break, which, in some cases,
will be problematic if the individual is already suffering from the effects of heat illness,
30
rendering it difficult for them to determine if they actually need a break. (Tr. 229–30, 463); see
also Post Buckley, 24 BNA OSHC 1155 at *13. Based on the testimony of Dr. Bernard and Dr.
Parmet, as well as the documents in Respondent’s possession, the Court finds that this is a
feasible means of abatement. (Tr. 453–57).
Items (5) and (6) deal with providing adequate break areas. If available, Respondent
should provide a climate-controlled area for heat-affected employees to take breaks; however, in
the absence of such an area, shade should be made available. Given the challenges inherent in
Respondent’s ability to control the environment in which its employees work, providing climate-
controlled areas is somewhat difficult—the vehicles driven by letter carriers are, for the most
part, not air conditioned and must remain locked and closed up when a carrier is doing a walking
relay. (Tr. 67, 81). According to Respondent, there are many locations for its letter carriers to
take breaks along their route, and drivers are encouraged to provide input as to where they prefer
to take their breaks. While this may be true, it does not appear that any coordinated effort had
been made by management to contact local businesses about the use of their facilities instead of
passing the responsibility for identifying break locations largely to individual letter carriers
without adequate training, support, and safety monitoring. As with many of the previous items
and methods of abatement, this sort of ad hoc system is not sufficient for the purposes of a heat
stress management program—it is the employer’s responsibility to ensure that the workplace,
wherever it may be, is free of a recognized hazard. See Armstrong Cork Co., 8 BNA OSHC
1070 at *5 (No. 76-2777, 1980) (“The duty to comply with section 5(a)(1), however, rests with
the employer. An employer cannot shift this responsibility to its employees by relying on them
to, in effect, determine whether the conditions under which they are working are unsafe.”). The
Court finds it is feasible for Respondent’s management team to make arrangements—or at least
31
implement a process for identifying appropriate rest locations—to enable its employees to have
adequate facilities for climate-controlled air or shade.
Finally, item (8) requires monitoring the National Weather Service heat advisories and
alerts and checking on carriers in the field during heat advisories or alerts, which warn of
dangerous conditions. Respondent already receives and distributes the NWS heat advisories and
alerts; however, according to Ms. Goza, Respondent did not have a procedure in place regarding
how to respond to such alerts and advisories. (Ex. C-68 at 63–64). Further, neither Mr. Harvey
nor Mr. Dyer monitored those reports or weather conditions. (Tr. 252, 258). This is a relatively
simple procedure to implement, as Respondent already has the information at its disposal.
Despite its simplicity, this particular item is of the utmost importance because it serves as the
determining factor as to when the heat stress management protocol should be implemented.
Ultimately, the Court finds that all of the foregoing proposed abatement measures are
feasible in the technical and economic sense. First, the heat stress management program and its
attendant requirements only require implementation during periods of excessive heat, as
indicated by the National Weather Service warnings and alerts. Second, Respondent has already
paid lip-service to many of the foregoing measures through the documents sent out by Ms. Goza.
(Ex. C-25, C-28 to C-35). In other words, Complainant is not recommending abatement
measures that Respondent has not already addressed through its own literature or through the
distribution of NIOSH-authored documents to its management team. The obstacle in this case is
not feasibility; rather, it is the apparent unwillingness of management to accept that heat impacts
performance, notwithstanding the information and literature available to them. Further, case law
suggests when safety precautions are widely recognized and accepted, that is evidence of their
32
economic feasibility. See National Realty and Constr. Co., 489 F.3d at 1266 n.37; Continental
Co. v. OSHRC, 630 F.2d 446, 449 (6th Cir. 1980).
v. Respondent Knew or Could have Known of the Hazardous
Condition
As noted above, the evidence must show that the employer knew or with the exercise of
reasonable diligence, should have known of the hazardous condition. Otis Elevator Company,
21 BNA OSHC 2204. The Court finds that Complainant proffered ample evidence to show that
Respondent knew or could have known of the hazardous condition.
First, Respondent was in possession of, and even authored, materials that explained the
hazards associated with excessive heat and the conditions under which precautions should be
taken. (Ex. C-28 to C-35). Second, not only was an excessive heat warning issued by the
National Weather Service, but Respondent’s own safety manager received those alerts, and, in
many cases, distributed such alerts to members of management. Third, there were multiple
incidents involving heat-related illnesses in the days and weeks leading up to July 23 and 24,
- In fact, in response to those very incidents, Ms. Goza specifically emailed the
management group and inquired as to whether the safety talks regarding heat-related illnesses
were being presented to Respondent’s employees.
The Court finds that Respondent knew, or could have known, of the hazardous condition.
Accordingly, based on the foregoing, the Court finds that Respondent violated Section 5(a)(1) of
the Act.
C. The Violation was Willful
“The hallmark of a willful violation is the employer’s state of mind at the time of the
violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . .
33
plain indifference to employee safety.”’ Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181
(No. 90-2775, 2000) (citation omitted); see also Hern Iron Works, Inc., 16 BNA OSHC 1206,
1214 (No. 89-433, 1993) (“A willful violation is differentiated by heightened awareness of the
illegality of the conduct or conditions and by a state of mind of conscious disregard or plain
indifference . . . .”). According to the Commission:
A willful violation is differentiated by a heightened awareness—of the illegality
of the conduct or conditions—and by a state of mind—conscious disregard or
plain indifference. There must be evidence that an employer knew of an
applicable standard or provision prohibiting the conduct or condition and
consciously disregarded the standard. Without such evidence of familiarity with
the standard’s terms, there must be evidence of such reckless disregard for
employee safety or the requirements of the law generally that one can infer that if
the employer had known of the standard or provision, the employer would not
have cared that the conduct or conditions violated it. It is therefore not enough for
the Secretary simply to show carelessness or lack of diligence in discovering or
eliminating a violation; nor is a willful charge justified if an employer has made a
good faith effort to comply with a standard or eliminate a hazard, even though the
employer’s efforts are not entirely effective or complete.
Williams Enters. Inc., 13 BNA OSHC 1249 at *9 (No. 85-355, 1987).
i. “Heat is No Excuse”
From the very top of the management chain down to the floor supervisor, the message
was clear: heat is not an excuse for performance issues. Mr. Behrends, the acting Officer-In-
Charge at the time of the incident involving [redacted] and other letter carriers, gave sworn
testimony that Gail Hendrix and Steve Erbland told him and other managers that heat does not
matter and that employees should be able to perform within their expected delivery parameters
regardless of the weather. (Tr. 245–47). This is further supported by the series of emails 14 that
were sent between the various managers in the Mid-America District. That message was relayed
- These emails are discussed more fully in Section IV.F, supra.
34to lower-level supervisors, such as Mr. Harvey and Mr. Dyer, who, in turn, conveyed the same
message to the letter carriers.
The problem, of course, is that this message flies in the face of long-established industry
knowledge regarding the effects of heat and also runs contrary to virtually all of the safety
information Respondent had in its possession and distributed to members of its management
team. Dr. Bernard and Dr. Parmet testified that it was a well-known and long-established fact
that heat impacts performance. (Tr. 194, 458). Ms. Goza, notwithstanding her limited
knowledge regarding heat safety, stated that she was aware of heat’s impact upon delivery times.
Nevertheless, Respondent’s own District Manager characterized this statement as a mere
assumption.
The fallout from this is that undue emphasis was placed on delivery cut-off time and
avoiding the payment of penalty overtime. (Tr. 252, 264). Letter carriers were placed under
significant pressure to perform within their expected delivery parameters, and, as a result, were
subjected to unnecessary exposure to extreme heat without adequate preventative measures. (Tr.
104, 156). Further, to the extent that these employees became overworked or needed reprieve,
their requests for assistance or sick leave were viewed with suspicion. (Tr. 98; Exs. C-9, C-12,
C-14). Instead of making a factual determination about why sick leave was being used in
uncharacteristic amounts, or why delivery times were longer than usual, management operated
under the assumption that employees were abusing the system and lamented the impact it would
have on the bottom line.
ii. Respondent Failed to Implement or Properly Utilize Available
Safety Information
Just as concerning to the Court is the fact that, although Respondent did not have a
formal heat stress management program, it nevertheless had an overwhelming amount of
35
information at its disposal—in some cases even generated by Respondent itself—indicating how
to develop and implement an appropriate heat stress management program. (Ex. C-25, C-28 to
C-35). To be sure, these documents and safety tips are not standards contained within the Act;
however, they do comprise a part of Respondent’s institutional knowledge regarding the hazards
of exposure to excessive heat. This information was not merely limited to what to do, but also
when to do it. Ms. Goza stated that she received and forwarded National Weather Service
warnings and advisories to the management team; however, according to Mr. Dyer and Mr.
Harvey, such warnings and advisories went unheeded. With a few modest exceptions,
Respondent completely ignored readily available information that, if properly implemented,
would have had the effect of eliminating, or at least materially reducing, the hazards associated
with working in extreme heat.
iii. Respondent Failed to Respond to Known Instances of Heat-Related
Illness
In addition to the foregoing, and perhaps as a result thereof, Respondent repeatedly failed
to properly respond to instances of heat-related illness. Even if we do not consider the events of
July 23 and 24, 2012, it is clear that Respondent was aware that its employees were being
impacted by heat-related medical issues. As noted above, on July 20, 2012, Ms. Goza asked the
managers of the Mid-America District about six reported heat-related incidents and whether
safety talks were being given. (Ex. C-68 at 27). Notwithstanding Ms. Goza’s inquiry, no
additional action was taken; in fact, it is not clear that Ms. Goza’s email was even read.
This case is similar to a recent Commission case, wherein the respondent was in
possession of information that it either chose to ignore or to which it failed to respond. In Elliot
Construction, a foreman who was well-versed in the effects of carbon monoxide exposure failed
to take proper precautions to prevent exposure before the project began and, subsequently, failed
36
to respond in a timely manner when his employees began to get sick. Elliot Constr. Corp., 23
BNA OSHC 2110 (No. 07-1578, 2012). Even after some of his employees began to get sick, he
allowed the project to proceed with those employees who were not falling ill. Id. In those
circumstances, the Commission found that:
[D]espite Dynowski’s heightened awareness of the potential for CO exposure at
this particular site, and following employee health complaints that he knew were
consistent with such exposure, he took no steps to monitor for CO and kept
employees working inside the CO-contaminated room. Under these
circumstances, we find that Dynowski was plainly indifferent to the safety of his
crew and, given that he was a supervisor, his willful state of mind can be imputed
to Elliot.
Id. at *7. See also Morrison-Knudsen, Inc., 16 BNA OSHC 1105 (No. 88-572, 1993) (“After all,
persons had reminded the employer’s officials of the duties embodied in the standards, but the
employer did not implement the suggested abatement methods, such as engineering controls and
a proper respiratory protection program. This evidence indicates that this employer either
intentionally violated the standards or showed plain indifference to them.”).
Respondent’s attempts to mitigate the importance of its knowledge of prior incidents are
unpersuasive. With respect to many of the incidents recounted at trial, Respondent continually
argued that the affected employees did not specifically mention it was the heat that was affecting
their performance. That, however, was part of the problem—managers were either unaware of,
or completely ignored, information that would have assisted them in identifying and responding
to heat-related illnesses, especially when, as Dr. Bernard testified characteristically can occur,
affected employees may have had difficulty understanding or articulating what was affecting
their performance because of heat-induced confusion . (Tr. 229–30).
The bottom line is that Respondent had an abundance of information at its disposal in
order to address the hazards of excessive heat, and yet, it failed to do anything with it, with the
exception of giving out water and instructing its employees to seek out shade. This was wholly
37
insufficient—not only did Respondent have ample information regarding the implementation of
a heat stress management program, but it was also presented with a number of incidents that
should have prompted a more searching review of its safety program. Instead, Respondent’s
management continued to see its problems from the standpoint of production, viewing the use of
sick leave and complaints about heat as indicators of a labor force gone astray as opposed to a
serious safety issue.
The Court finds that Respondent, through its management, exhibited a conscious
disregard of, and plain indifference to, employee safety. Accordingly, the Court finds that
Citation 1, Item 1 was properly characterized as willful.
D. Good Faith
In response to Complainant’s characterization of the violation as willful, Respondent
contends it had a good faith belief it was in compliance with the Act. Specifically, Respondent
contends that it was in compliance with no fewer than five of the proposed abatement measures,
and, as such, it did not commit a willful violation. The Court disagrees.
According to the Commission, “An employer’s conduct will not be found willful if it
‘made a good faith effort to comply with a standard or eliminate a hazard, even though [its] . . .
efforts were not entirely effective or complete.’” Elliot Constr., 23 BNA OSHC 2110 (citing
A.E. Staley Mfg. Co., 19 BNA OSHC 1199, 1202 (No. 91-0637, 2000) (consolidated), aff’d, 295
F.3d 1341 (D.C. Cir. 2002)). Respondent lists the following amongst its good faith efforts to
eliminate the hazard of excessive heat: (1) providing ice and water; (2) providing a work/rest
regimen; (3) providing training and informational materials to management and employees; and
(4) providing cool, climate-controlled locations and shaded areas.
38
First, the Court accepts that Respondent provided ice and water to its employees;
however, as the court in Post Buckley noted, merely providing water is only one part of a
comprehensive heat management program. Post Buckley, 24 BNA OSHC 1155.
Second, contrary to Respondent’s arguments, it did not provide a work/rest regimen. A
work/rest cycle takes current weather conditions into consideration and allows for periodic rest
to allow the body to cool down. The breaks that were authorized for Respondent’s employees
were contractually bargained for, were applicable year-round, and did not take into consideration
the increased need for periodic rest in high heat conditions. Rather, employees were expected to
work within the same parameters in the month of July as they were in the month of April.
Third, as was previously discussed above, while Respondent may have given safety talks
and provided information in the form of posters, its training program was woefully deficient. All
but one of the letter carriers who testified stated that they received very little in the way of
substantive training regarding the hazards of heat. Specifically, they recalled being told to drink
lots of water and to seek out shade. Some recall being told to take rest breaks; however, most of
them felt that such breaks had to fit within the existing allowance for breaks. Further, due to the
threat of discipline for failure to complete routes in a timely manner, many of the employees felt
they could not take extra breaks because it could potentially prevent them from being able to
complete their respective routes within the projected time frame. Even members of management
testified as to the cursory nature of their training—Mr. Dyer stated that he did not recall
receiving training for excessive heat; Mr. Harvey stated that he relied a lot on common sense;
and Ms. Goza stated that, prior to the incident involving [redacted], she had not received formal
training on heat hazards. (Ex. C-68 at 27). The level of training was not commensurate with the
39
amount of knowledge and information available to Respondent, and putting up posters and
making information available for reading at a later time was a poor substitute for instruction.
Finally, while it sounds as if many of the local businesses provided climate-controlled
areas and that letter carriers were able to find shade along their routes, the availability of such
rest areas was not the product of management efforts to procure them. Instead, letter carriers
needed to find their own rest stops, which were recorded in a book so that management would be
able to find them. (Tr. 740). Ultimately, the location of break spots was “entirely up to the
carrier.” (Tr. 740). While this process makes sense in light of the individual nature of the job,
the Court finds that Respondent should not be credited with good faith for playing a minor,
passive role in agreeing with a letter carrier on his selected break areas (and only for the purpose
of knowing where the carrier was stopping), particularly when rigid production standards were
not adjusted to accommodate.
For the foregoing reasons, the Court finds that Respondent has not established the
defense of good faith.
VI. Penalty
In determining the appropriate penalty for affirmed violations, section 17(j) of the Act
requires the Commission to give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the
employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,
15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and
40
its judges conduct de novo penalty determinations and have full discretion to assess penalties
based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel
Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138
(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).
Complainant proposed the maximum penalty of $70,000.00 for Citation 1, Item 1. This
assessment was based on the fact that: (1) Respondent is a very large employer, with
approximately 8,000 employees in the Mid-America District alone; (2) the gravity of the
violation was high due to the significant risk of injury, the lack of meaningful protections, the
fact that all employees at the Truman Station were exposed to the hazard, and the fact that
multiple employees became sick, or, in [redacted]’s case, died; (3) Respondent did not exhibit
good faith; and (4) Respondent had a history of violations in the recent past. (Tr. 551–55). The
Court agrees with the assessment of Complainant. As noted by the Commission, gravity is given
primary consideration. In this case, numerous employees were exposed to the hazard of
excessive heat without being properly equipped with adequate training and resources to prevent,
recognize, and treat heat-related illnesses. Considering the amount of information available to
Respondent regarding heat hazards, the Court also finds that Respondent should not be entitled
to any credit for good faith. Accordingly, the Court shall assess a penalty of $70,000.00.
41
ORDER
The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing
Findings of Fact and Conclusions of Law, it is ORDERED that:
-
Citation 1, Item 1 is hereby AFFIRMED, and penalty of $70,000.00 is ASSESSED.
SO ORDERED
/s/ Peggy S. BallDated September 24, 2014 Peggy S. Ball
Denver, Colorado Judge, OSHRC42
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