case no. 15-60462 united states court of appeals …s... · case no. 15-60462 . united states court...

CASE NO. 15-60462

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WAL-MART DISTRIBUTION CENTER #6016,

Petitioner

vs.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,

Respondents

PETITION FOR REVIEW OF A FINAL ORDER OF THE OCCUPATIONAL SAFETY

AND HEALTH REVIEW COMMISSION

BRIEF ON BEHALF OF PETITIONER, WAL-MART DISTRIBUTION CENTER #6016

Steven R. McCown Texas State Bar No. 13466500 Meyling Ly Texas State Bar No. 24049527 Littler Mendelson, P.C. 2001 Ross Avenue, Suite 1500 Dallas, TX 75201 Telephone: (214) 880-8100 Telecopier: (214) 880-0181 Ronald W. Taylor Venable LLP 750 E. Pratt Street, Suite 900 Baltimore, MD 21202 Telephone: (410) 244-7654 Telecopier: (410) 244-7742

Case: 15-60462 Document: 00513234057 Page: 1 Date Filed: 10/15/2015

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ORAL ARGUMENT REQUESTED CASE NO. 15-60462

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WAL-MART DISTRIBUTION CENTER #6016,

Petitioner

vs.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,

Respondents

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of 5th Cir. R. 28.1 have an interest

in the outcome of this case. These representations are made in order that the

judges of this court may evaluate possible disqualification or recusal.

1. Wal-Mart Distribution Center

2. Thomas E. Perez, Secretary of Labor, U.S. Department of Labor;

3. Steven R. McCown, Meyling Ly, Littler Mendelson, P.C. and Ronald W. Taylor, Venable LLP, Counsel for Petitioner;


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4. Scott Glabman, Senior Appellate Attorney; Heather Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor, U.S. Department of Labor, Counsel for Respondent;

5. Madeleine T. Le and Michael D. Schoen, Trial Attorney, U.S. Department of

Labor, Office of the Solicitor, Occupational Safety and Health Division, Respondent;

6. Ray H. Darling, Jr., Executive Secretary, Occupational Safety & Health Review Commission;

7. Honorable Patrick B. Augustine, Administrative Law Judge Occupational Safety and Health Review Commission;

8. Commissioners Thomasina V. Rogers, Cynthia Attwood and Heather L. MacDougall, Occupational Safety and Health Review Commission. /s/ Steven R. McCown___________ Steven R. McCown Texas State Bar No. 13466500 Meyling Ly Texas State Bar No. 24049527 Littler Mendelson, P.C. 2001 Ross Avenue, Suite 1500 Dallas, TX 75201 Telephone: (214) 880-8100 Telecopier: (214) 880-0181 Ronald W. Taylor Venable LLP 750 E. Pratt Street, Suite 900 Baltimore, MD 21202 Telephone: (410) 244-7654

Telecopier: (410) 244-7742


iii

STATEMENT REGARDING ORAL ARGUMENT

WAL-MART DISTRIBUTION CENTER #60 (“Wal-Mart”) submits that

oral argument should be granted. While this brief establishes Wal-Mart’s position,

oral argument would serve to further enhance the Court’s understanding of this

appeal and its far-reaching implication on the retail industry, especially large

retailers with multiple locations.


TABLE OF CONTENTS

PAGE

I. CERTIFICATE OF INTERESTED PERSONS .............................................. i

II. STATEMENT REGARDING ORAL ARGUMENT .................................. iii

III. CITATIONS TO THE RECORD ................................................................... 1

STATEMENT OF JURISDICTION .............................................................. 1

ISSUES PRESENTED FOR REVIEW .......................................................... 2

STATEMENT OF THE CASE ...................................................................... 2

I. Statement of the Facts .......................................................................... 4

1. Wal-Mart’s distribution centers are virtually identical in physical size, layout and operations .......................................... 4

2. Wal-Mart implements uniform safety policies and programs at each distribution center to ensure the safety of associates ............................................................................... 5

3. Wal-Mart achieved Voluntary Protection Program Status – OSHA’s highest safety ranking ............................................. 6

SUMMARY OF ARGUMENT ...................................................................... 9

ARGUMENT ................................................................................................ 10

I. Standard of Review ............................................................................ 10

II. THE REVIEW COMMISSION’S CONCLUSION THAT WAL-MART VIOLATED 29 C.F.R. 1910.132(d) BY FAILING TO CONDUCT A SEPARATE PPE HAZARD ASSESSMENT FOR THE DISTRIBUTION CENTER IS ERRONEOUS .................................................................................... 11


TABLE OF CONTENTS (CONTINUED)

PAGE

1. The record evidence establishes that a PPE assessment was performed and there is no evidence it was so deficient as to constitute a failure to evaluate .......................... 11

2. The Commission erred in requiring Wal-Mart to prove its assessment was accurate and in requiring a specific assessment methodology as opposed to result ......................... 15

a. The Review Commission erred in requiring Wal-Mart to prove its assessment was compliant ................. 17

b. The Review Commission erred in requiring a specific method of assessing hazards not required by the plain language of the standard ............................ 20

3. The Commission majority’s finding that the assessment is inadequate because persons responsible for the assessment did not personally observe the New Braunfels Center before the inspection and the New Braunfels general manager did not participate in the assessment are immaterial ................................................................................ 26

CONCLUSION ............................................................................................. 33

CERTIFICATE OF SERVICE ..................................................................... 35

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS ....................................................................................... 36


TABLE OF AUTHORITIES

PAGE

iii

CASES

B.F. Goodrich Hilton Davies, Inc., 19 BNA OSHC 1795 (No. 00-1401, 2001) .................................................. 14, 15

Bristol Steel & Ironworks, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979) .............................................................................. 25

Central of Georgia Railway Co., 5 BNA OSHC 1209 (No. 11742 1977) aff’d, 576 F.2d 620 (5th Cir. 1978) ................................................................................................................... 28

Corbesco, Inc. v. Dole, 926 F.2d 422 (5th Cir. 1991) .............................................................................. 10

Diamond Roofing Co. v. OSHA, 528 F.2d 645 (5th Cir. 1976) .............................................................................. 25

Drexel Chemical Co., 17 BNA OSHC 1908 (No. 94-1460, 1997) ............................................ 14, 15, 21

General Dynamics Corp., 15 BNA OSHC 2122 (No. 87-1195, 1993) ........................................................ 28

Johnson Controls, 15 BNA OSHC 2132 (No. 89-2614, 1993) ........................................................ 28

Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979) ............................................................................ 25

Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940 (9th Cir. 1979) .............................................................................. 25

Lourdes Hosp., 20 BNA OSHC 1789 (No. 03-0641, 2004) ........................................................ 20

Martin v. O.S.H.R.C., 499 U.S. 144 (1991) ............................................................................................ 10


TABLE OF AUTHORITIES (CONTINUED)

PAGE

Mayflower Vehicle Sys., Inc. v. Chao, 68 Fed. Appx. 688 (6th Cir. 2003) ...................................................................... 32

New York State Elec. & Gas Corp., 19 BNA OSHC 1227 (No. 91-2897, 2000) .................................................. 16, 18

Ragnar Benson, Inc. 18 BNA OSHC 1937 (No. 97-1676, 1999) ........................................................ 21

Ray Evers Welding Co. v. OSHRC, 625 F.2d 726 (6th Cir. 1980) .............................................................................. 26

Perez v. Loren Cook Co., 13-1310, 2015 WL 5932887 (8th Cir. Oct. 13, 2015) ......................................... 24 S&H Riggers & Erectors, Inc. v. OSHRC,

659 F.2d 1273 (5th Cir. 1981) ............................................................................ 24 Siemens Energy & Automation, Inc.,

20 BNA OSHC 2197 (No. 00-1052, 2005) ........................................................ 21

Sun Ship, Inc., 12 BNA OSHC 1185 (No. 80-3192, 1985) ........................................................ 28

Suttles Truck Leasing Co., 20 BNA OSHC 1953 (Nos. 97-0545 and 97-0546, 2004) ........................... 32, 33

Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283 (No. 97-1073, 2007) .................................................. 21, 24

Trinity Indus., Inc. v. O.S.H.R.C., 107 Fed. Appx. 387 (5th Cir. 2004) .............................................................. 10, 26

Trinity Marine Nashville, Inc. v. O.S.H.R.C., 275 F.3d 423 (5th Cir. 2001) .............................................................................. 10



PAGE

United Parcel Serv., Inc. v. Bureau of Safety and Regulation, 277 Mich. App. 192.211-12, 745 N.W.2d 125 (2008) ..................... 23, 30, 31, 32

Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977) .......................................................................... 25

W.G. Fairfield Co. v. OSHRC, 285 F.3d 499 (6th Cir. 2002) .............................................................................. 21

Yelvington Welding Service, 6 BNA OSHC 2013 ( No. 15958, 1978) ............................................................. 28

STATUTES

5 U.S.C. §706(2)(A) ................................................................................................. 10

5 U.S.C. §706(2)(D) ................................................................................................. 10

29 U.S.C. §659(c) ...................................................................................................... 1

29 U.S.C. §660(a) ................................................................................................ 1, 10

Occupational Safety and Health Act of 1970 (the “Act”) ............................. 1, 21, 28

OTHER AUTHORITIES

29 C.F.R. 1910.132(d) ............................................................................................. 11

29 C.F.R. 1910.132(f) .............................................................................................. 28

29 C.F.R. § 1910.132(d)(1) ...............................................................................passim

59 Fed. Reg. at 16,336 ....................................................................................... 22, 23

59 Fed. Reg. 16334, 16336 (April 6, 1994) ............................................................. 20

2008, OSHA 300 ........................................................................................................ 8

Fed. R. App. P. 17 ...................................................................................................... 1



PAGE

Fed. R. App. P. 32(a)(5) ........................................................................................... 36

Fed. R. App. P. 32(a)(6) ........................................................................................... 36

Fed. R. App. P. 32(a)(7)(B) ..................................................................................... 36

Fed. R. App. P. 32(a)(7)(B)(iii) ............................................................................... 36

Fifth Circuit Rule 30.2 ............................................................................................... 1

Labor, OSHA, Voluntary Protection Programs: All About VPP (Mar. 15, 2007), http://www.osha.gov/dcsp/vpp/all_about_vpp.html. ................................ 8


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CITATIONS TO THE RECORD

Pursuant to Fed. R. App. P. 17 and Fifth Circuit Rule 30.2, the Occupational

Safety and Health Review Commission filed in lieu of the record a certified list of

relevant docket entries. For purposes of citing to the record, Wal-Mart is

conforming the references to the certified list of relevant docket entries. Therefore,

the testimony taken before the Administrative Law Judge will be cited (Vol. ___,

page: lines); the Secretary’s Exhibits will be cited (Vol. __, C-__); Employer’s

Exhibits will be cited (Vol. ___, R-___); and the pleadings will be cited (Vol. __,

Item __). Wal-Mart will, pursuant to Fifth Circuit Rule 30.2, file a copy of the

portions of the record relied on by the parties in their briefs within 21 days of the

filing of Respondent’s brief.

STATEMENT OF JURISDICTION

Agency jurisdiction. The Occupational Safety and Health Review

Commission (the “Commission”) obtained jurisdiction pursuant to section 10(c) of

the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §659(c)

when Wal-Mart timely contested the citation by sending its notice of contest on

August 28, 2008.

Appellate jurisdiction. This Court has jurisdiction pursuant to section 11(a)

of the Act, 29 U.S.C. §660(a). On April 27, 2015, the Commission issued its


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Decision. Wal-Mart filed a petition for review with this Court on June 26, 2015,

within the 60-day time frame prescribed by section 11(a).

ISSUES PRESENTED FOR REVIEW

I. Did the Commission err as a matter of law by concluding that the performance standard 1910.132(d) requires Wal-Mart to conduct a separate personal protective equipment (“PPE”) hazard assessment for the New Braunfels Distribution center instead of using a global assessment for each of its distribution centers, where the distribution centers are uniform and virtually identical by design?

STATEMENT OF THE CASE

Nature of the Case. Wal-Mart is seeking review of the Commission’s

decision affirming a serious citation under 29 C.F.R. 1910.132(d)(1) in OSHRC

Docket No. 08-1292 entered on April 27, 2015.

Course of the Proceedings. The Occupational Safety and Health

Administration (“OSHA”) issued to Wal-Mart a Citation and Notification of

Penalty on August 5, 2008.1 Wal-Mart timely filed a Notice of Contest on

August 28, 2008.2 The above-referenced matter was heard before the

Administrative Law Judge (“ALJ”) on May 19-20, 2009.3 The ALJ issued his

decision on December 4, 2009, where he affirmed violations of two standards

promulgated by OSHA. Specifically, the ALJ found that Wal-Mart failed to assess

its facility to determine if hazards were present or likely to be present in violation

1 Vol. 5, Item 2. 2 Vol. 5, Item 3. 3 Vol. 1-2.


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of 29 C.F.R. §1910.132(d)(1), the personal protective equipment (“PPE”) hazard

assessment standard. The ALJ also held that Respondent failed to require

eyes/face PPE for its associates (employees) working as order-fillers. Finally, the

ALJ vacated two items related to foot and hand PPE (Items 1c and 1d), and

assessed the $1,700 proposed penalty.4

The Commission issued its Notice of Docketing of the ALJ’s Decision on

December 14, 2009.5 Wal-Mart filed its Petition for Discretionary Review with

the Commission on December 28, 2009, and the Secretary filed its Petition for

Discretionary Review on January 4, 2010.6 The Commission issued its Notice of

Direction for Review on January 12, 2010.7

Disposition Below. On April 27, 2015, the Commission issued its decision,

affirming Item 1a related to the hazard assessment and vacated Items 1b, 1c, and

1d.8 Wal-Mart timely filed its Petition for Review with this Court on June 26,

2015.

4 Vol. 5, Item 31. 5 Vol. 5, Item 32. 6 Vol. 5, Item 33 & 34. 7 Vol. 5, Item 36. 8 Vol. 5, Item 49.


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I. Statement of the Facts

1. Wal-Mart’s distribution centers are virtually identical in physical size, layout and operations.

Wal-Mart has approximately 120 distribution centers throughout the United

States, and the physical layout and operations of the distribution centers are

virtually identical.9 The distribution center at issue in this matter is located in New

Braunfels, Texas, and is approximately 1.2 million square feet in size.10 Wal-Mart

has over 33,000 employees, or associates, who work in distribution centers of the

same design and operations as the New Braunfels center.11

Wal-Mart employs “order-fillers” who are responsible for labeling and

unloading freight, merchandise and materials from wood pallets. Each center

stores approximately 90,000 to 95,000 wood pallets each day, and the order-fillers

are responsible for handling and unloading the empty pallets.12 Order-fillers

perform the same functions, use the same equipment, and work in the same

workspaces across Wal-Mart’s distribution centers.13

9 Vol. 2, 28:9-12, 44:4-14, 45:1-18 10 Vol. 1, 206:5-8; Vol. 2, 28:13-17; 64:22-24. 11 Vol. 2, 105:24-25; 106:1-4. 12 Vol. 1, 41:14-42:6, 44:14-45:8, 130:2-131:3, 168:2-9, 206:9-12. 13 Vol. 2, 35:13-25, 44:4-14; see Vol. 4, R-3; the ALJ agreed with this factual finding: “An order filler is an order filler, and I don’t think that the time requirements or the work requirements are different simply because he may work at a different facility or a different part of the facility or a different shift.” Vol. 2, 22:14-18.


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2. Wal-Mart implements uniform safety policies and programs at each distribution center to ensure the safety of associates.

Wal-Mart enforces numerous safety policies and procedures to ensure the

safety of all of its associates. Wal-Mart has a safety department, called “Wal-Mart

Logistics,” devoted to developing safety policies and procedures for all distribution

centers to follow.14 Asset Protection regional teams and Asset Protection

managers are responsible for executing the safety policies and procedures at each

distribution center.15 These reports are analyzed extensively at local, regional, and

divisional levels.16 Then, the Logistics Department implements measures,

procedures, and training to address trends in work-related accidents and injuries.17

Each distribution center, including New Braunfels, has a personal protective

equipment hazard assessment and safety program.18 To assess workplace hazards,

Asset Protection managers frequently conduct physical inspections of the

workplace and talk with associates to discuss safety issues.19 Wal-Mart also

considers industry standards, agency guidance and interpretive letters to determine

the necessity for PPE.20 As a part of its safety program, Wal-Mart trains new hires

and current associates on the use of any required PPE whenever such employee is

14 Vol. 2, 27:21-25, 28:1-8, 21-25; 29:1-18, 91:14-18. 15 Vol. 2, 29, 3-18, 30:2-25, 32:8-15, 113:17-21. 16 Vol. 2, 32:16-22. 17 Vol. 2, 96:3-16. 18 Vol. 2, 34:16-24; Vol.4, R-1 and R-10. 19 Vol.2, 39:12-20; 92:7-24. 20 Vol. 2, 100:10-14.


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required to use PPE.21 For example, Wal-Mart conducted a PPE assessment and

concluded that there were two mandatory PPEs for associates using box knives;

thus Wal-Mart trains the associates on the use of cut resistant gloves and forearm

sheaths.22

As a part of its safety program at the New Braunfels distribution center,

Wal-Mart employs a third party service, IFCO, to evaluate and to repair broken or

damaged pallets.23 Additionally, Wal-Mart ensures regular housekeeping and

cleaning of its distribution centers to ensure safe working conditions.24

3. Wal-Mart achieved Voluntary Protection Program Status – OSHA’s highest safety ranking.

Implementing its “cookie cutter” design in distribution centers, Wal-Mart

built its Searcy, Arkansas facility approximately during the same time frame –

within a year or two of the New Braunfels center.25 The distribution centers

located in Searcy and New Braunfels are virtually identical: the centers are

approximately the same size, employ approximately the same number of

associates, and implement the same type of safety programs, including

housekeeping and pallet repair service.26 Additionally, an order-filler in the Searcy

distribution center performs the exact same functions, uses the same equipment, 21 Vol. 2, 41:12-18, 15-25; Vol.4, R-2. 22 Vol. 2, 42:7-43:11; 123:3-12. 23 Vol. 1, 157:2-25; 158:1-8; 169:6-25,170:1-2; 206:13-21. 24 Vol. 1, 212:4-14. 25 Vol. 2, 44:19-21. 26 Vol. 2, 35:16-25, 44:19-21, 45:4-25.


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and has the same job requirements as an order-filler in the New Braunfels

distribution center.27

As required by 29 CFR 1910.132(d)(1), a hazard assessment was performed

at the Searcy distribution center in October 2006, which Wal-Mart also applied to

the New Braunfels distribution center.28 According to Wal-Mart Safety and

Environmental Director, Mike Trusty:

Our footprint as a building, whether it be a regional Distribution Center or grocery Distribution Center is substantially similar. A term that is often used to describe how we do this is “cookie cutter.” And so an order filling module is an order filling module, whether you’re in New Braunfels, Texas, Searcy, Arkansas, Bentonville, Arkansas, Lewiston, Maine. They are the same. And so we use this [PPE Hazard Assessment] because the hazards are the same or any issue that needs to be addressed.29

As a part of Wal-Mart’s ongoing assessment of workplace safety, Wal-Mart

updated the hazard assessment in September 2008, and a copy of the 2008 PPE

Hazard Assessment is kept on the company intranet as a part of Wal-Mart’s overall

safety manual that applies to all distribution centers.30

The Searcy distribution center was awarded OSHA’s highest safety rating

and recognized as a Voluntary Protection Program (“VPP”) site by OSHA in

27 Vol. 2, 35:16-25, 44:19-21, 45:4-25. 28 Vol. 2, 34:22-24, 35:1-6, 36:1-7; Vol. 4, R-1 and R-10. 29 Vol. 2, 35:16-25. 30 Vol. 2, 40:1-25,41:1-9.


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2008.31 According to OSHA, “Approval into VPP is OSHA’s official recognition

of the outstanding efforts of employers and employees who have achieved

exemplary occupational safety and health.”32 In late 2004 or early 2005, Wal-Mart

applied for VPP status.33 In June of 2004, OSHA conducted an onsite inspection

of the Searcy facility.34 VPP Coordinator Tom Staggs (out of the OSHA Little

Rock Area Office), Area Director Paul Hansen, the Chairman of the Voluntary

Program Participants Association, and special government employees inspected the

distribution center.35 Staggs, Hansen, and the rest of the inspection team spent two

and a half to three days in the facility in which they toured the entire facility,

including order-filling modules, and reviewed all safety programs, training

documents, and 300 logs.36 They also interviewed approximately forty associates,

including order-fillers, who were randomly selected.37 The Searcy facility was

inspected a second time in January of 2008 by OSHA Area Director Paul Hansen,

Assistant Area Director David Bates, and Compliance Assistant and Special Safety

Specialist Carol Jones.38 The second OSHA inspection team reviewed the hazard

assessment, which was conducted in 2006 and modified in 2008, OSHA 300 logs,

31 Vol. 2, 45:19-24. 32 See United States Dept. of Labor, OSHA, Voluntary Protection Programs: All About VPP, (Mar. 15, 2007), http://www.osha.gov/dcsp/vpp/all_about_vpp.html. 33 Vol. 2, 47:2-5. 34 Vol. 2, 47:10-11. 35 Vol. 2, 47:10-17. 36 Vol. 2, 49:4-21. 37 Vol. 2, 49: 4-21, 50:3-8. 38 Vol. 2, 53:3-13.


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and PPE program.39 Wal-Mart informed OSHA that the hazard assessment was

applicable, not only to Searcy, but to all of their distribution centers.40 The

officials also observed order-fillers performing their job functions without the use

of PPE such as safety glasses and steel-toed shoes.41 The officials concluded that

the hazard assessment and PPE program were appropriate and noted “[p]ersonal

protective equipment is selected based on the hazards associates continue to be

exposed to following implementation of all feasible engineering/administrative

controls.”42 Oddly, the Secretary of Labor cites Wal-Mart in this matter for the

same hazard assessment and safety program for which Wal-Mart received

accolades from OSHA in 2008.

SUMMARY OF ARGUMENT

In compliance with 29 C.F.R. §1910.132(d)(1), Wal-Mart conducted a

global assessment of hazards for all of its distribution centers, which are virtually

identical by design, and determined that PPE was not necessary for its associates

who are “order-fillers.” Despite the undisputed fact that Wal-Mart conducted such

an assessment using its Searcy distribution center, the Commission affirmed the

ALJ’s finding that Wal-Mart failed to assess the New Braunfels distribution center,

39 Vol. 2, 53:22-25, 54:1-8; Vol. 4, R-4, R-5, and R-6. 40 Vol. 2, 50:9-21. 41 Vol. 2, 55:9-56:2. 42 Vol. 2, 51:2-5, 52:1-4; Vol. 4, R-8 and R-9.


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simply because Wal-Mart did not conduct a separate, individualized assessment of

the New Braunfels facility, and instead relied on a global assessment.

The Commission’s decision is error because it seeks to subvert a

performance-oriented standard into a specification standard with no notice to Wal-

Mart. The Commission also erred by improperly shifting the burden of proof from

the Secretary of Labor to Wal-Mart. Finally, the Commission erred in concluding

that the violation was serious.

ARGUMENT

I. STANDARD OF REVIEW

The appropriate standard of review regarding the Commission’s findings of

fact is usually whether they are supported by substantial evidence in the record

taken as a whole.43 The Commission’s legal conclusions are reviewed as to

whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law”44 or made “without observance of procedure required by

law.”45 Finally, this Court reviews the Secretary of Labor’s interpretation of an

OSHA regulation “to assure that it is consistent with the regulatory language and is

otherwise reasonable.”46

43 29 U.S.C. § 660(a); see Trinity Indus., Inc. v. O.S.H.R.C., 107 Fed. Appx. 387, 390 (5th Cir. 2004) (citing Corbesco, Inc. v. Dole, 926 F.2d 422, 425 (5th Cir. 1991)). 44 5 U.S.C. §706(2)(A); see Trinity Marine Nashville, Inc. v. O.S.H.R.C., 275 F.3d 423, 426-27 (5th Cir. 2001). 45 5 U.S.C. §706(2)(D). 46 Trinity Marine Nashville, 275 F.3d at 427 (citing Martin v. O.S.H.R.C., 499 U.S. 144, 156


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II. THE REVIEW COMMISSION’S CONCLUSION THAT WAL-MART VIOLATED 29 C.F.R. 1910.132(D) BY FAILING TO CONDUCT A SEPARATE PPE HAZARD ASSESSMENT FOR THE DISTRIBUTION CENTER IS ERRONEOUS.

1. The record evidence establishes that a PPE assessment was performed and there is no evidence it was so deficient as to constitute a failure to evaluate.

29 C.F.R. 1910.132(d)(1) provides, in relevant part, as follows: “[t]he

Employer shall assess the workplace to determine if hazards are present, or are

likely to be present, which necessitate the use of personal protective equipment

(PPE).” The regulation goes on to state, “if such hazards are present,” the

employer shall take certain steps to ensure the employees have and wear the

appropriate PPE. 29 CFR 1910.132(d)(1) (emphasis added). Thus, all that is

required by the cited regulation is for an employer to conduct a hazard assessment,

and to require PPE if the employer’s assessment determines that hazards are

present.

Here, Wal-Mart conducted a hazard assessment and determined that there were

no hazards present or likely to be present at the New Braunfels distribution center,

which necessitated the use of PPE by its order-fillers. It is undisputed that Wal-

Mart conducted a “global assessment” of the hazards in its distribution centers,

including the New Braunfels center. That assessment was based on an assessment

of the hazards, job duties and equipment at a representative center, Wal-Mart’s (1991) (emphasis in original).


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Searcy, Arkansas distribution center. There is also no dispute that Wal-Mart’s

assessment was intended to apply not just to the Searcy center, but to all of Wal-

Mart’s distribution centers, including the New Braunfels center. That decision was

based on Wal-Mart’s awareness that the configuration of its distribution centers,

the equipment in them, and the work performed in them were uniform, because it

intended them to be. Undisputed record evidence establishes that the physical

layout and operations of the distribution centers are virtually identical, and that the

order fillers, the workers allegedly at risk, performed the same functions and used

the same equipment across the distribution centers.47

Importantly, the global assessment was not a litigation position developed by

Wal-Mart for this case. To the contrary, the record evidence establishes that Wal-

Mart informed the Secretary that its assessment was intended for all of its

distribution centers years before the citation at issue. Specifically, when OSHA

officials reviewed the hazard assessment for the Searcy distribution center as part

of that center’s application for recognition as a Voluntary Protection Program

(“VPP”) site in in 2008, Wal-Mart informed OSHA that the hazard assessment was

47 Vol. 2, 34:22-24; 35:16-25, 46:4-8, 45:11-14; See Vol. 4, R-1 and R-3. The record contains considerable unrebutted evidence concerning Wal-Mart’s good faith and on-going efforts to assess hazards and protect its associates. Wal-Mart managers frequently conduct physical inspections of the workplace and discuss safety issues with associates. Further, Wal-Mart considers industry standards, OSHA guidance, and OSHA interpretive letters to determine the need for PPE. If PPE is determined to be necessary, the record establishes that Wal-Mart trains associates on the use of such PPE. Vol. 2, 34:16-24, 41:15-25, 42:7-10; 123:3-12; 41:15-25; Vol. 4, R-1, R-2, and R-10.


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applicable, not only to Searcy, but to all of its distribution centers.48 Aware of the

intended global applicability of the hazard assessment, OSHA concluded that the

hazard assessment and PPE were appropriate for the hazards confronting the

distribution center workers.49

As Commissioner MacDougall noted, Wal-Mart’s global assessment was, in

fact, an assessment.50 Yet, the Commission majority’s concluded that Wal-Mart

violated 29 CFR 1910.132(d)(1), by failing to conduct an assessment, which is

factually and legally erroneous.

Factually, the Commission’s conclusion that Wal-Mart failed to conduct an

assessment is not supported by substantial evidence in the record taken as a whole.

As discussed above, Wal-Mart presented undisputed and irrefutable evidence that

it conducted a hazard assessment of the New Braunfels distribution center. In fact,

the Commission’s majority acknowledges Wal-Mart’s assessment, for in rejecting

the Secretary’s contention that Wal-Mart was required affirmatively to prove its

global assessment complied with the standard, the Commission majority noted that

to the contrary, the Secretary was required to prove the assessment was

48 Vol. 2, 50:9-21. 49 Vol. 2, 49: 9-21; 50:5-8; 51:2-5, 52:1-4; Vol. 4, R-8 and R-9. There is no evidence that OSHA objected to Wal-Mart’s position that its hazard assessment was intended to apply globally to all of its distribution centers. 50 Vol. 5, Item 49, p. 20. The Administrative Law Judge acknowledged his understanding of this point, too. Vol. 2, 48:5-24. His decision, he explained, would turn not on whether the assessment existed, but whether it was required to be individualized. Id.


14

noncompliant: “whether the Searcy Center [global] assessment was sufficient to

meet the requirements of the standard relates to the issue of noncompliance.”51

Therefore, the Secretary, and not Wal-Mart, was required to show that Wal-Mart’s

assessment was inadequate by failing to determine hazards “present or likely to be

present” in the New Braunfels center.52 As the Commission majority noted, to

sustain this burden the Secretary was required to show that the assessment done by

Wal-Mart for the New Braunfels Center was in fact inadequate: “if the Secretary

can show that the Searcy Center assessment did not take account of the conditions

specific to the New Braunfels Center, he will have established Wal-Mart’s

noncompliance irrespective of whether, under other circumstances, there may be

an effective substitute for conducting an assessment on-site.”53 Therefore, by

implication, the Commission recognized that Wal-Mart did in fact conduct an

assessment. In summary, even if the Secretary or the Commission majority

believed the assessment inadequate, there is no basis for finding no assessment

occurred. Drexel Chemical Co., 17 BNA OSHC 1908, 1910 (No. 94-1460, 1997)

(disagreement with the results of an assessment is not a basis for finding no

assessment was conducted); B.F. Goodrich Hilton Davies, Inc., 19 BNA OSHC

1795, 1799 (No. 00-1401, 2001).

51 Vol. 5, Item 49, P. 3, n.3. 52 Id. 53 Vol. 5, Item 49, P. 4.


15

Additionally, the Review Commission’s decision in Drexel Chemical

establishes that to constitute a violation, Wal-Mart’s assessment must have been

“so deficient as to constitute a failure to evaluate.” Id. No such evidence exists in

the record. Below the Secretary essentially argued that no assessment had

occurred, and accordingly he did not adduce any evidence that the assessment

neglected to identify any hazards present or likely to be present in the New

Braunfels Center, the Secretary also did not adduce any evidence that hazards

existed at the New Braunfels Center that were different than the hazards at the

Searcy Center.54 In short, there is no evidence that Wal-Mart’s assessment was

deficient, let alone so deficient as not to constitute an evaluation at all.

2. The Commission erred in requiring Wal-Mart to prove its assessment was accurate and in requiring a specific assessment methodology as opposed to result.

Rather than focus on the substance of any alleged deficiencies in Wal-Mart’s

hazard assessment, the Secretary and Commission majority focused on the form of

the assessment. The Commission majority concluded that Wal-Mart’s assessment

did not comply, not because the assessment failed to identify any new hazards but

because the Commission majority disagreed with the assessment methodology.

According to the Commission majority, Wal-Mart was required to perform “an on-

54 Admittedly, the Secretary contended that Wal-Mart failed to require the use of certain forms of PPE. The Review Commission unanimously found that the Secretary had not sustained his burden of proof regarding the need for such PPE and dismissed those items.


16

site, individualized assessment” of the New Braunfels center and could not rely on

other assessment methods.55 This conclusion is legally erroneous in this case for at

least two reasons.

First, rather than requiring the Secretary to prove that Wal-Mart’s global

assessment “did not take account of the conditions specific to the New Braunfels

Center,” the Commission majority’s analysis transposed the burden of proof and

required Wal-Mart to prove that the assessment was sufficient. This transposition

of the burden of proof is legal error and is contrary to settled law and the

Commission majority’s own statement on who bore the burden of proof.56 Such

burden-shifting requires that the finding of a violation be vacated. See, New York

State Elec. & Gas Corp., 19 BNA OSHC 1227, 1230 (No. 91-2897, 2000)

(vacating citation when the Commission improperly placed the burden of proof on

employer). Second, the Commission majority’s analysis ignores the absence of

any evidence showing that the assessment was substantively ineffective and

instead focuses on the methodology of the assessment, hypothesizing that

differences could potentially exist. But there is no record evidence that differences

actually did exist or that the methodology resulted in an assessment that was

actually or even likely inadequate. This elevation of form over substance

55 Vol. 5, Item 49, P. 3. 56 Vol. 5, Item 49, P. 4, 6.


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erroneously converted the standard from a performance-based standard to one that

is procedurally prescriptive, without fair notice to Wal-Mart.

a. The Review Commission erred in requiring Wal-Mart to prove its assessment was compliant.

There is no finding by the Review Commission, or record evidence that

would support a finding, that the assessment done by Wal-Mart for the New

Braunfels center was inadequate or failed to identify or address any hazards

confronting workers at the New Braunfels center. As Commissioner MacDougall

cogently observed, “If there are any differences between the New Braunfels

facility and the distribution center used as the benchmark for the global

assessment, the record does not identify them. … .”57 The Commission’s majority

decision does not challenge this observation and, rather, rests on the alleged failure

of Wal-Mart to verify “through personal observation” that the “conditions”58 in

New Braunfels were equivalent to those in Searcy.59 The Commission majority’s

finding is based on its conclusion that the assessment was not shown by Wal-Mart

to be equivalent:

57 Vol. 5, Item 49, P. 24. 58 Throughout its decision, the Commission majority uses the word “conditions.” The standard at issue does not require Wal-Mart or any employer to assess conditions. Rather, the standard requires employers to assess “hazards” and to prescribe appropriate PPE to protect workers from those hazards. The Commission majority’s reference to conditions as opposed to hazards is consistent with, but cannot justify, its legal error. There is no evidence in the record that any different conditions existed, let alone that any such conditions posed hazards for which PPE would be required. 59 Vol. 5, Item 49, p.5, n.5; p.5-7


18

Specifically, Wal-Mart points to the Safety Director’s response to the question, “From your observations of both [Searcy and New Braunfels] distribution centers, from your personal observation, are the order [filler] functions identical?” He responded, “[y]es, they are,” and indicated that the functions and job requirements identified in this citation are the same and involved the same equipment. But the Safety Director subsequently testified that he had not been to the New Braunfels Center prior to the inspection. We find, therefore, that he had not determined from personal observations that the conditions at New Braunfels were the same as those at Searcy as of the relevant period.60

The Commission majority’s obsession with the manner of the assessment is further

reflected in the subsequent paragraph of its decision, where it posits the absence of

deficiencies is irrelevant:

However, this does not mean that either corporate or New Braunfels management had verified that the conditions at New Braunfels were equivalent to those at Searcy. Moreover, as Wal-Mart’s own Safety Director acknowledged, “process or equipment changes” can cause “the circumstances or conditions at … distribution centers [to] differ in some way from Searcy, Arkansas [.] Despite this potential for difference, the record shows that Wal-Mart never verified the equivalency of conditions between these two facilities.61

The Commission majority’s analysis highlights the legal fallacies of its

reasoning. First, the Commission majority’s decision reveals that its conclusion

was based not on Wal-Mart’s failure to do an assessment, but Wal-Mart’s failure to

prove the accuracy of its assessment. In so doing, the Commission majority

60 Id. at p. 4-5 (emphasis in original). 61 Vol. 5, Item 49, p.5.


19

ignored settled law and its own pronouncement that it was the Secretary’s

obligation to show that the assessment failed to take in to account specific hazards

existing at the New Braunfels center. No such evidence was adduced, and, indeed,

the Commission majority’s decision does nothing more than speculate that there

was a “potential for difference.” The record evidence refutes the Commission

majority’s speculation. As described, the record evidence established that OSHA

considered and approved Wal-Mart’s global assessment for order fillers working in

the Searcy Center.62 And the conditions confronting order fillers in Searcy were

the same in New Braunfels, a point the ALJ acknowledged.63 This speculation,

moreover, misses the point: To sustain the citation, the Secretary was required to

introduce evidence that Wal-Mart’s assessment failed to take into account hazards

existing at New Braunfels or that were actually different than those at Searcy. As

Commissioner MacDougall noted, there is no evidence and no reasonable basis for

concluding that differences existed or that any hazards existed that were not

assessed. Thus, notwithstanding Commission majority’s speculation that

differences could exist, there is no record evidence that differences did exist, let

alone differences presenting hazards requiring the use of PPE.

62 Vol. 2, 51:2-5, 52:1-4; Vol. 4, R-8 and R-9. 63 Vol. 2, 35:13-25, 44:4-14; see Vol. 4, R-3; the ALJ agreed with this factual finding: “An order filler is an order filler, and I don’t think that the time requirements or the work requirements are different simply because he may work at a different facility or a different part of the facility or a different shift.” Vol. 2, 22:14-18.


20

b. The Review Commission erred in requiring a specific method of assessing hazards not required by the plain language of the standard.

Likewise, the Commission majority’s decision imposes a new requirement

that the assessment be done in a particular manner: by “personal observation” of

each individual worksite, irrespective of similarity.64 This determination

contradicts the Commission’s own description of the requirements of the standard

and the language of the standard itself.

As the Commission observed, section 1910.132(d)(1) is “silent regarding the

method an employer must use to assess its workplace for hazards.”65 This is

because, as even the Commission majority acknowledged, the standard is a

performance standard that simply requires employers to use their “awareness of

workplace hazards to select the appropriate PPE for the work being performed.”

59 Fed. Reg. 16334, 16336 (April 6, 1994).66 This point is significant because, as

the Review Commission has held, a performance–oriented standard, as opposed to

a specification standard, is result oriented, so that a performance standard “state[s]

the required result without specifically mandating how that result is to be

achieved.” Lourdes Hosp., 20 BNA OSHC 1789, 1791 (No. 03-0641, 2004)

(Secretary’s attempt to establish a strict specification standard by imposing the use

64 Vol. 5, Item 49, p. 3 & 5. 65 Vol. 5, Item 49, p.3, 20-21. 66 Vol. 5, Item 49, p.3, 20-21.


21

of hands-free instead of hand-to-hand transfer of surgical instruments is

inconsistent with the performance orientation of the standard); Siemens Energy &

Automation, Inc., 20 BNA OSHC 2197, 2198 (No. 00-1052, 2005). Because

performance standards do not prescribe a specific methodology of achieving the

result, the Review Commission has ruled that they are interpreted in light of what

is reasonable. Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 2287 (No. 97-

1073, 2007); W.G. Fairfield Co. v. OSHRC, 285 F.3d 499, 507 (6th Cir. 2002);

Siemens Energy & Automotive, Inc., 20 BNA OSHC at 2198; see, Drexel Chem.

Co., supra, 17 BNA OSHC at 1910 (assessment must be so deficient as to

constitute a failure to evaluate).67 Nevertheless, the Commission majority, like the

Secretary, focused almost exclusively on the manner in which Wal-Mart did its

assessment rather than any deficiency in the assessment. Thus, the Commission

majority – without finding any deficiency in the assessment – found that the

assessment was insufficient because it was not the result of an on-site examination

based on “personal observation.”68

The Commission majority’s conclusion is unreasonable. The authorities

relied on by the Commission majority to support its reading of the standard, and its

67 This approach is consonant with the Act, which makes clear that employers are not to be held strictly liable and rather are expected to take reasonable steps to assure safety at their worksites. The reasonable diligence standard requires an employer to take reasonably diligent measures to detect hazardous conditions, but does not obligate an employer to detect every single instance of a possible hazard. See, Ragnar Benson, Inc. 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). 68 Vol. 5, Item 49, p. 5-6.


22

finding that “personal observation” is required, are refuted by the language of the

standard. The standard states, simply, that an “assessment of the workplace”

should be performed. The preamble to the regulations makes clear that no

particular method is required.69

Notwithstanding the performance-oriented notice of the standard, the

Commission majority mandated how the result is to be achieved. To do so, the

Commission majority relies on an overly narrow reading of language in the

standard’s preamble it contends requires the assessment to take into account

conditions specific to each worksite, focusing on the words “particular

workplaces” in the standard’s preamble and on language in an admittedly advisory

appendix.70 The Commission majority’s reliance on the preamble does not support

its position. First, the preamble provides:

The Agency believes that the employer will be capable of determining and evaluating the hazards of a particular workplace. Paragraph (d) of the final rule is a performance-oriented provision which simply requires employers to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed. Paragraph (d) clearly indicates that the employer is accountable both for the quality of the hazard assessment and for the adequacy of the PPE selected.

59 at Fed. Reg. 16334, 16336 (April 6, 1994). The use of the word “particular”

does not logically or legally support the conclusion that identical workplaces must

69 59 Fed. Reg. at 16,336. 70 Vol. 5, Item 49, p.3-4.


23

be repetitiously evaluated. See, United Parcel Serv., Inc. v. Bureau of Safety and

Regulation, 277 Mich. App. 192.211-12, 745 N.W.2d 125, 136 (2008). The

Commission majority’s emphasis in particular workplaces ignores the next

sentences, in which it is explained that the concern is with hazards connected with

the work being performed and with end-result accountability. Indeed, the

Commission majority’s conclusion ignores the preamble’s “clearly indicate[d]”

intention of making the employer accountable for the quality and accuracy of the

assessment done. 59 Fed. Reg. at 16,336. Rather than holding Wal-Mart

accountable for the end-result “quality of the hazard assessment and for the

adequacy of the PPE selected,” however, the Commission majority penalized Wal-

Mart for the manner it used its “awareness of workplace hazards.”

Although the Commission majority requires individualized observations at

each workplace based on “walkthroughs,” it acknowledges that the appendix to the

standard which mentions a walkthrough as an example of a method for conducting

a compliant assessment is illustrative and not mandatory. The Commission

majority’s imposition of an individualized assessment based on personal

observation converts this to a requirement instead of a recommendation, and is

inconsistent with the language of the standard itself. Thus, the performance-

oriented nature of the standard is evident in its requirement that assessments

consider existing hazards or hazards that are “likely” to exist. If, as the


24

Commission majority seeks to require, all assessments were required to be based

on individualized assessments based on personal observations or testing at a

particular site, the language of the standard concerning hazards likely to be present

would be unnecessary. The Commission majority’s interpretation requiring

personal observation thus renders superfluous that clause of the standard.71

Moreover, the Commission majority’s freshly minted interpretation fails to

provide employers fair notice of what is required for compliance and thus violates

due process. As all of the Commissioners agreed, the standard is “silent regarding

the method an employer must use to assess its workplace for hazards.”72

Nevertheless, the Commission majority improperly imposed a particular

methodology. See Thomas Indus. Coatings, Inc., supra, 21 BNA OSHC at 2287

(citations omitted); see also Petro Hunt, LLC, 24 BNA OSHC (June 20, 2012);

Perez v. Loren Cook Co., 13-1310, 2015 WL 5932887, at *1 (8th Cir. Oct. 13,

2015) (recently decided en banc decision finding Secretary’s interpretation of

barrier guard safety regulation unreasonable).

71 It is noteworthy that the Secretary did not introduce evidence that such individualized assessments would be better or more reliable. It is equally noteworthy that the Commission majority did not rest its conclusion on such a finding. The Secretary and the Commission majority ignore those parts of the Appendix inconvenient to their position. For instance, the Appendix instructs that “common sense” should be used in performing any assessment. Wal-Mart submits its approach reflected that sense. The approach endorsed by the Commission is like requiring a checkout cashier to individually scan each of the 120 identical items to ensure each one was individually assessed for price. Such an approach would be frustrating and not commonsensical. 72 Vol. 5, Item 49, p.3, 20-21.


25

It is well settled that due process requires that in order for a statute or

regulation to be enforceable, it must be sufficiently unambiguous that a reasonable

person reading the regulation would understand what is required of him. S&H

Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1279 (5th Cir. 1981); Bristol

Steel & Ironworks, Inc. v. OSHRC, 601 F.2d 717, 722 (4th Cir. 1979); Kent Nowlin

Constr. Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979); Usery v. Kennecott Copper

Corp., 577 F.2d 1113, 1119 (10th Cir. 1977); Diamond Roofing Co. v. OSHA, 528

F.2d 645, 649 (5th Cir. 1976). In Diamond Roofing, this Court vacated a citation

which alleged a violation of a general OSHA standard because a plain reading of

the regulation did not give fair notice that the regulation applied to the cited

condition. This Court stated:

An employer … is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express. … [T]he Secretary as enforcer of the Act has the responsibility to state with ascertainable certainty what is meant by the standard he has promulgated.

528 F.2d at 649 (citations omitted); see also Lloyd C. Lockrem, Inc. v. United

States, 609 F.2d 940, 944 (9th Cir. 1979) (“Regulations cannot be construed to


26

mean what an agency intended but did not adequately express.”) Employers are

entitled to fair warning of conduct that an OSHA standard prohibits or requires.

See, Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 732 (6th Cir. 1980). The

decision of the Commission departs from this principle and should be reversed.

3. The Commission majority’s finding that the assessment is inadequate because persons responsible for the assessment did not personally observe the New Braunfels Center before the inspection and the New Braunfels general manager did not participate in the assessment are immaterial.

As noted, there is no record evidence to support a determination that Wal-

Mart’s assessment failed to identify hazards that were present or were likely to be

present, let alone that it was so deficient as not to constitute an assessment. The

Commission majority, however, sidestepped this fatal evidentiary void by positing

that Wal-Mart could not rely on the evidence presented at the hearing in this

matter, that the hazards at the Searcy and New Braunfels centers were identical,

because Wal-Mart had not formally verified that equivalency beforehand.73

73 The Commission majority’s reliance on Trinity Indus., Inc., 504 F.3d 397 (3rd Cir. 2007), is misplaced. Unlike the situation here involving cookie-cutter facilities with workers doing the same job functions with the same equipment, Trinity involved a construction site containing asbestos. Unlike here, the employer made no assessment whether asbestos was present even though the building involved was of an age where, by law, employers are required to presume the presence of asbestos and, instead, simply assumed none was present. As a result, the employer was cited for failing to comply with a standard with materially different requirements that obligated the employer to determine the presence, location, and quantity of asbestos containing material and for failing to notify workers who might come in contact with it. Trinity is inapposite because the employer in that case did not perform any assessment, adequate or inadequate. Moreover, the standard at issue in Trinity required the employer not simply to determine the existence of hazards, but to specifically determine the presence, location, and quantity of asbestos. Finally, the standard at issue in Trinity involved a unique construction site,


27

Initially, as Commissioner McDougall observed, the manager’s non-involvement

was due to his awareness but Wal-Mart’s corporate office, including Mr. Trusty,

were responsible for such matters.74 And, apart from the consideration that the

Commission majority’s reasoning reveals that it shifted the burden to Wal-Mart to

prove the adequacy of its assessment, the Commission majority’s conclusion is

wrong because there is no finding, nor would the record evidence support such a

finding, that Wal-Mart’s assessment was done nonsensically or unreasonably, such

that the assessment was the result of serendipitous dumb luck. It was not. As

Commissioner MacDougall recounts in her dissent, and as the evidence

establishes, Wal-Mart’s assessment was produced by safety professionals familiar

with the conditions in equipment used and tasks performed in the distribution

centers. Thus, this is not a case in which an employer performed a global

assessment oblivious to or notwithstanding known differences. Even if the

Commission majority’s reasoning may be defensible where the worksites are

different, involving different equipment, tools, and tasks, or where there is no

reasonable basis for presuming them to be the same, that is not the situation here.

Here, Wal-Mart conducted an assessment for hazards in identical workplaces by

employees performing identical job duties using identical equipment.75 The

and not an assessment of identical facilities. Vol. 5, Item 49, p.4-7. 74 Vol. 5, Item 49, p.25, n. 4. 75 Vol. 2, 35:13-25, 44:4-14; see Vol. 4, R-3.


28

workplaces were identical by design, and not by happenstance. Other than the

Commission majority’s apparent preference for repetitive personal observation,

there is no reasonable basis in concluding that the assessment done was

noncompliant. Indeed, the Commission majority observed that because of the

performance-oriented nature of the standard, the Secretary was required to show

that the global assessment did not take into account hazards specific to New

Braunfels to sustain the citation.76 The Secretary did not prove any such hazards

existed and the Commission majority, despite its articulation, glossed over this

failure: although the Commission majority speculated that difference could exist, it

made no finding that any difference did, in fact, exist.77

The prejudice to Wal-Mart is evident in this case. As noted, the Secretary

was specifically informed by Wal-Mart that its hazard assessment was intended to

apply not only at Searcy, but at all of its cookie-cutter distribution centers.78 The

Secretary did not, apparently, have the interpretation it now asserts. The

Commission majority’s support of the Secretary to after-the fact interpretation not

only denies Wal-Mart due process, but emasculates the limitations period

contained in the Act.79

76 Vol. 5, Item 49, p.4. 77 This point is especially forceful in light of the consideration that the Review Commission found that Wal-Mart had not failed to provide any necessary PPE and by the consideration that Wal-Mart was not charged with having failed to train employees to use any necessary PPE. See 29 C.F.R. 1910.132(f). 78 Vol. 2, 78:16-20; 80:10-81:3; 82:13-24; 125:21-25. 79 In light of the Secretary’s awareness of facts constituting the alleged violation, the citation was


29

Although the standard itself simply requires an assessment of the workplace

with respect to hazards, the Commission majority adopted the Secretary’s

contention based on the preamble to the standard that workplace should be

interpreted to mean “particular” workplace. As noted, this argument is semantical.

First, apart from the consideration that this argument apparently did not exist when

Wal-Mart informed the Secretary of the manner in which it was assessing its

centers for hazards, the Secretary’s position does not logically require personalized

observations of identical workplaces in order to assess the hazards. If it did so,

then automobile manufacturers would be required to issue individualized owner’s

manuals for each car they make. No such requirement exists, of course, because

the automobiles present essentially the same hazards so that a single generalized,

or global, manual is appropriate for each model. Yet that is precisely what Wal-

Mart has done: a single assessment for one model workplace, distribution centers.80

Likewise, under the reasoning of Commission majority and the Secretary, a

residential contractor working in tract houses would be required to personally

untimely. General Dynamics Corp., 15 BNA OSHC 2122, 2128 (No. 87-1195, 1993); Sun Ship, Inc., 12 BNA OSHC 1185 (No. 80-3192, 1985); Yelvington Welding Service, 6 BNA OSHC 2013 ( No. 15958, 1978); Central of Georgia Railway Co., 5 BNA OSHC 1209 (No. 11742 1977) aff’d, 576 F.2d 620 (5th Cir. 1978). Although timeliness was not a basis for the Review Commission’s decision, since Wal-Mart told the Secretary of its global assessment, the Secretary’s failure to assert the position it is now taking about the need for individual as opposed to global assessments highlights the lack of fair notice and the unfairness to Wal-Mart. Johnson Controls, 15 BNA OSHC 2132, 2136, n.3 (No. 89-2614, 1993) (Secretary must issue citation within six months of learning of violation even if on-going). 80 Wal-Mart does not contend that the assessment for its distribution centers is sufficient for other different, facilities where workers engage in other tasks with different equipment.


30

observe each and every house to determine the need for PPE as opposed to relying

on his awareness of the hazards likely to be present. Thus, even if the Secretary’s

position could have substance with respect to substantively different workplaces

and processes, it does not here where no such differences were shown to exist.81

The interpretation reached by the Commission majority, and urged by the

Secretary, was considered and rejected by the Michigan Court of Appeals in

United Parcel Serv., Inc. v. Bureau of Safety and Regulation, 277 Mich. App. 192,

745 N.W. 2d 125 appeal denied, 481 Mich. 897, 749 N.W.2d 746 (2008) (“UPS”)..

UPS involved an alleged violation of Michigan’s analogous state rule as a result of

UPS’s performance of a global assessment for its aircraft repair facilities. The

citations alleged that the assessment had been conducted at a central location and

not validated at each worksite. Id. at 196-97, 749 N.W.2d at 128. A Michigan

hearing officer affirmed the citations, finding that because UPS did not “validate”

its out-of-state assessments at the Michigan workplaces, [UPS] did not perform

workplace assessments at all” and rejected UPS’s argument that the assessments

had not been shown to be inadequate or deficient. Id. at 198, 749 N.W.2d at 129.

As with the Commission majority, the hearing officer in that case reasoned that the

81 The obligation on the Secretary to establish differences is mandated by the settled burden of proof. But it is not appropriate, as the Secretary contends here, to require the employer to prove that its assessment was compliant as opposed to requiring the Secretary to prove that it was not. Thus, unlike the burden imposed by the Commission majority, the result urged by Wal-Mart imposes no new obligation on the Secretary.


31

focus of the standard was on assessing the workplaces, not general hazards. Id.

Indeed, the hearing officer, like the Commission majority, based his decision in

part on the same non-mandatory Appendix B to the standard. Id. at 199, 749

N.W.2d at 130. A Michigan state circuit court affirmed the hearing officer and

UPS appealed.

The Michigan Court of Appeals reversed. Finding that the standard does not

specify how the employer must make the hazard assessment, the Court ruled the

hearing officer had committed “a substantial and material error of law by ruling

that an employer’s conducting a representative hazard assessment of one or more

similar workplaces and implementing that assessment at multiple locations where

identical job tasks are performed for a single employer could never satisfy [the

standard].” Id. at 205, 745 N.W.2d at 132. Critically, the Court specifically

rejected the effort to equate the word “assess” to mean more. The Court’s

reasoning applies equally here: the interpretation of the rule asserted “violates

principles of statutory construction by adding to the plain meaning of the text of

the rule the requirement that an employer with multiple similar workplaces where

identical tasks are performed must examine, observe, and look at each workplace

separately to evaluate for hazards requiring PPE. Nothing may be read into a

statute or rule that is not within the manifest intention of the Legislature as


32

gathered from the statute or rule itself.” Id. at 206, 745 N.W.2d at 133 (citations

omitted).

Noting that to prove a violation of a performance-oriented standard, the

government was required to prove “actual exposure to a hazardous condition

independent of non-compliance with the regulations,” Id. at 212-13, 745 N.W.2d at

136 (quoting Mayflower Vehicle Sys., Inc. v. Chao, 68 Fed. Appx. 688, 692 (6th

Cir. 2003)), the Court concluded:

Rather than attempting to prove that UPS failed to identify through its representative assessment a hazardous condition that ‘a reasonably prudent employer, concerned with safety of his employees, would recognize’ [the agency] argued that UPS’s was not an assessment as a matter of law. For the reasons we have discussed, it was error for the board and the circuit court to adopt [the agency’s] erroneous legal arguments. Because [the agency] did not allege or prove the existence of an unidentified hazard requiring the use of PPE, those portions of the citation alleging a violation of [the standard] with respect to UPS’s [Michigan] aircraft repair facilities must be vacated.

Id. at 213, 745 N.W.2d at 136. Exactly the same result should apply here. See also

Suttles Truck Leasing Co., 20 BNA OSHC 1953, 1965-66 (Nos. 97-0545 and 97-

0546, 2004) (employer could rely on hazard assessments for confined spaces

performed at other, similar locations).82

82 In Suttles, the employer operated five tank washing stations across the country to clean tank trailers used for hauling various hazardous chemicals. After receiving a citation for failing to determine if the tanks contained hazardous atmospheres, the employer developed a protocol to evaluate whether hazardous toxic atmospheres remained in the tanks after washing and drying. The citation at issue occurred before the assessment was made and the protocol developed. Although the Review Commission vacated citations relating to the alleged inadequacy of the


33

CONCLUSION

The Commission’s majority decision inappropriately subverts a

performance-oriented standard into a specific standard and impermissibly shifts the

burden of proof to Wal-Mart to prove the absence of a violation of a performance

standard, when the law requires the Secretary to establish that there was a

violation. For these reasons, Wal-Mart respectfully requests that the

Commission’s decision be reversed.

employer’s measures, the Review Commission affirmed the violations requiring assessment of conditions because the protocol was not developed until after the inspection. Consequently, the Review Commission found that the employer was not justified in using the protocol to be its assessment as to that citation because it had not developed the protocol until after the citation issued. The Review Commission, however, held that such a generalized assessment would be reasonable otherwise given the basic performance-oriented nature of the standard. Id. at 1965-66. Here, of course, the assessment occurred beforehand so that Suttles supports dismissal.


34

Respectfully submitted, /s/ Steven R. McCown Steven R. McCown Texas State Bar No. 13466500 Meyling Ly Texas State Bar No. 24049527 Littler Mendelson, P.C. 2001 Ross Avenue, Suite 1500 Dallas, TX 75201 Telephone: (214) 880-8100 Telecopier: (214) 880-0181 Ronald W. Taylor Venable LLP 750 E. Pratt Street, Suite 900 Baltimore, MD 21202 Telephone: (410) 244-7654

Telecopier: (410) 244-7742

ATTORNEYS FOR PETITIONER WAL-MART DISTRIBUTION CENTER #6016


35

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 26, 2015, I electronically filed the foregoing with the Clerk of the Court. I further certify that I have mailed by United States Postal Service the document to the following parties:

Scott Glabman, Senior Appellate Attorney U.S. Department of Labor Office of the Solicitor 200 Constitution Avenue, NW RoomS-4004 Washington, DC 20210

/s/ Steven R. McCown


36

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE

REQUIREMENTS

I certify that this brief complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B) because this brief contains 8153 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

Further, this brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

2010 using Times New roman, 14 point font.

SIGNED this 26th day of October, 2015.

/s/ Steven R. McCown Steven R. McCown ATTORNEYS FOR PETITIONER WAL-MART DISTRIBUTION CENTER #6016 Firmwide:136420750.6 015602.8766


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