United States Postal Service

Plain-English summary

OSHA cited the United States Postal Service for failing to enter two employees' work-related illnesses on required injury and illness forms. For one employee, the only document identifying the illness as work-related was a medical certification submitted for Family and Medical Leave Act leave. The Commission held that FMLA confidentiality rules barred the Postal Service from reviewing that document for OSHA recordkeeping and that the FMLA coordinator's knowledge could not be imputed because the coordinator did not direct employees' work. It also found no independent proof that the employee's work supervisor knew the illness was work-related. The citation remained affirmed for the other employee, whose supervisors received doctors' notes linking the condition to work. The Commission vacated the portion concerning the FMLA applicant and reduced the penalty from $5,000 to $2,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.29(b)(2); 29 C.F.R. § 1904.29(b)(3)
• Outcome: Recordkeeping items vacated as to one employee and affirmed as to another; penalty reduced to $2,500.
• Key point: An employer could not be charged with knowledge based solely on confidential FMLA medical records that it was prohibited from reviewing for OSHA recordkeeping.

Full text (OSHRC public release)

United States Postal Service, Docket No. 08-1547

United States of America

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION

1120
20 th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF
LABOR,

Complainant,

v.

OSHRC Docket No.
08-1547

UNITED STATES POSTAL SERVICE,

Respondent.

ON BRIEFS:

Lisa
A. Wilson and Kristen M. Lindberg, Attorneys; Heather R. Phillips, Counsel for
Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for
Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S.
Department of Labor, Washington, DC

For
the Complainant

Teresa A. Gonsalves and Kimberly Richardson, Attorneys;
Stephan J. Boardman, Chief Counsel for Labor Relations; United States Postal
Service, Washington, DC

For
the Respondent

DECISION

Before: ROGERS, Chairman; ATTWOOD and M ac DOUGALL,
Commissioners.

BY
THE COMMISSION:

At
issue on review is a citation issued by the Occupational Safety and Health
Administration to the United States Postal Service regarding two OSHA
recordkeeping regulations, 29 C.F.R. § 1904.29(b)(2) and (b)(3), alleging a
failure to record a work-related illness on the forms required by 29 C.F.R. Part
1904. We conclude that the Secretary has failed to prove a violation of the
cited regulations; thus, we vacate the portion of the citation that relates to
the alleged failure to record at issue.

BACKGROUND

Employee-A,
an employee of USPS at its Seattle, Washington, mail processing center,
submitted an application to USPS requesting protected leave under the Family and
Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654. With the application,
Employee-A submitted a completed copy of the Department of Labor’s Form WH-380,
a health care provider certification for employees seeking FMLA-protected leave.
In Employee-A’s WH-380, her physician described her illness and symptoms, and
stated that she had a “serious health condition . . . caused
by her work environment exclusively.” It is undisputed that USPS did not record
this illness on either OSHA’s Form 300, Log of Work-Related Injuries and
Illnesses, or OSHA’s Form 301, Injury and Illness Report.

OSHA
issued USPS a citation alleging two violations of the recordkeeping
regulations—one violation of 29 C.F.R. § 1904.29(b)(2) (Item 1a), and one
violation of 29 C.F.R. § 1904.29(b)(3) (Item 1b)—for failing to record the
illness.

Following a hearing, the late Chief Administrative Law
Judge Irving Sommer affirmed the citation and assessed the $5,000 proposed
penalty.

At issue on review are the implications of the
confidentiality requirements of the FMLA’s implementing regulations, in light of
an employer’s obligations under OSHA’s recordkeeping regulations. For the
reasons that follow, we reverse the judge with respect to Employee-A. For the
remaining portion of the affirmed violation, we assess a penalty of
$2,500.

DISCUSSION

USPS
contends that the citation should be vacated because: (1) the confidentiality
provision of the FMLA regulations, 29 C.F.R. § 825.500(g), requires USPS to
maintain Employee-A’s FMLA documentation in a separate system of confidential
records and precludes USPS from recording the information about Employee-A’s
illness on its OSHA log and report; (2) the knowledge of USPS’s FMLA
Coordinator, who knew of Employee-A’s illness from the Form WH-380, is not
imputable to USPS; and (3) there is no basis to infer that Employee A’s
supervisor knew Employee-A had a work-related illness independent of the FMLA
documents. Before we address the merits of USPS’s arguments, we first consider
the Secretary’s claim on review that USPS waived its FMLA
argument.

I.           Waiver

The
Secretary contends USPS waived its argument that FMLA confidentiality
requirements prohibited it from recording Employee-A’s illness, because this
argument was not included as an affirmative defense in USPS’s answer and was not
asserted until USPS filed its post-hearing brief with the judge. Commission Rule
34(b), 29 C.F.R. § 2200.34(b)(3)-(4) (requiring answer to “include all
affirmative defenses being asserted,” and stating that failure to do so may
“result in the party being prohibited from raising the defense at a later stage
in the proceeding”). In the Secretary’s view, USPS’s FMLA argument should be
considered an affirmative defense because it is “analogous” to a preemption
claim under section 4(b)(1) of the OSH Act, 29 U.S.C. § 653(b)(1), which
the Commission has long recognized as an affirmative defense. Rockwell Int’l
Corp. , 17 BNA OSHC 1801, 1803, 1995-97 CCH OSHD ¶ 31,150, p. 43,529 (No.
93-45, 1996). We disagree.

Commission Rule 34(b)(3)’s reference to affirmative
defenses is to those recognized as such at common law—i.e., assertions raising
arguments or new facts that, if proven, defeat a plaintiff’s claim even if the
allegations in the complaint are true. See Ford Motor Co. v. Transport Indem.
Co. , 795 F.2d 538, 546 (6th Cir. 1986) (“An affirmative defense raises
matters extraneous to the plaintiff’s prima facie case.”); see
generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure §§ 1270-1271 (3d ed. 2004); 61A Am. Jur. 2d Pleading § 279. Therefore,
“if the defense involved is one that merely negates an element of the
plaintiff’s prima facie case [ ] it is not truly an affirmative defense and need
not be pleaded [in the answer].” Sanden v. Mayo Clinic , 495 F.2d 221, 224
(8th Cir. 1974) (internal quotation marks and citation
omitted).

Here, the Secretary asserts that USPS had a legal
obligation to review the FMLA documents for OSHA recordkeeping purposes. USPS
disagrees that it had such an obligation, asserting that the FMLA
confidentiality requirements precluded it from reviewing the FMLA documents for
OSHA recordkeeping purposes. In this respect, the parties’ arguments directly
implicate the knowledge element of the Secretary’s prima facie case. See
Astra Pharm. Prods., Inc. , 9 BNA
OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981)
(Secretary’s prima facie burden includes establishing that “the cited
employer either knew or could have known of the condition with the exercise of
reasonable diligence”), aff’d in pertinent part , 681 F.2d 69 (1st Cir.
1982). Accordingly, we find that USPS’s FMLA argument is not an an affirmative
defense, and is not subject to waiver as the Secretary
contends.

Even
if the FMLA argument were considered an affirmative defense, we find that the
issue was “tried by the . . . implied consent of the parties and [may therefore
be] treated as if actually raised by the pleadings.” Bill C. Carroll Co. ,
7 BNA OSHC 1806, 1810, 1979 CCH OSHD ¶ 23,940, p. 29,032 (No. 76-2748,
1979). A finding of such consent is appropriate where “the party who should have
pled the [affirmative] defense introduces evidence in support thereof without
objection by the adverse party . . . .” Jones v. Miles , 656 F.2d 103, 107
n.7 (5th Cir. 1981). At the hearing, USPS’s counsel asked USPS manager Kenn
Messenger if FMLA documentation must be kept confidential by USPS’s FMLA
Coordinator. The Secretary failed to object, even though this question sought
evidence that, from the Secretary’s standpoint, was unrelated to any other issue
in the case. Compare In re Acequia , 34 F.3d 800, 814 (9th Cir. 1994)
(“Where evidence . . . allege[d] to have shown implied consent was also relevant
to the other issues at trial[,] [it] cannot be used to imply consent to try the
[unpleaded] issue.”) (internal quotation marks and citation omitted). Also,
after USPS included the FMLA argument in its post-hearing brief before the
judge, the Secretary did not object in any way, such as by moving to strike the
argument or requesting the opportunity to file a post-hearing reply brief.
See Elliot Constr. Co. , 23 BNA OSHC 2110, 2114, 2012 CCH OSHD ¶ 33,231,
p. 56,065 (No. 07-1578, 2012) (considering arguments that relied on information
not objected to until brief on review).

Finally, the Secretary has failed
to show that he suffered any prejudice resulting from our consideration of
USPS’s FMLA argument. While he asserts that, had he known USPS would raise this
argument, he “might have” questioned Employee-A’s work supervisor about whether
the supervisor knew of Employee-A’s illness apart from the FMLA
documents, the Secretary has never requested a further opportunity to present
evidence of the supervisor’s independent knowledge of Employee-A’s illness.
Bill C. Carroll , 7 BNA OSHC at 1810, 1979 CCH OSHD at p. 29,032.
Compare Nuprecon, LP , 22 BNA OSHC 1937, 1939, 2009-12 CCH OSHD ¶ 33,034,
p. 54,384 (No. 08-1037, 2009) (prejudice where Secretary identified document he
would have proffered had he been apprised applicability was in dispute). As
such, we find no bar to our consideration of the FMLA
argument.

II.         Knowledge

“To
meet [his] burden of establishing employer knowledge, the Secretary must show
that the cited employer either knew or, with the exercise of reasonable
diligence, could have known of the presence of the violative condition.”
N&N Contractors, Inc. , 18 BNA OSHC 2121, 2122, 2000 CCH OSHD ¶
32,101, p. 48,239 (No. 96-0606, 2000), aff’d , 255 F.3d 122 (4th Cir.
2001). As discussed below, we reject the Secretary’s claim that USPS had
constructive or actual knowledge of Employee-A’s illness because the FMLA
confidentiality requirements precluded USPS from reviewing FMLA leave-request
documentation for purposes of OSHA recordkeeping, and the Secretary’s attempts
to establish the element of knowledge by other means also
fail.

The
Secretary argues that USPS was obligated to review such information to determine
if it is required to be recorded on OSHA’s recordkeeping forms pursuant to
OSHA’s recordkeeping regulations. USPS claims, however, that pursuant to the
confidentiality provision of the FMLA regulations, the documentation at issue
here must be kept confidential:

Records and documents relating to
certifications, recertifications or medical histories of employees or employees’
family members, created for purposes of FMLA, shall be maintained as
confidential medical records in separate files/records from the usual
personnel files, and if ADA is also applicable, such records shall be maintained
in conformance with ADA confidentiality requirements ( see 29 C.F.R. §
1630.14(c)(1)), except that:

(1)
Supervisors and managers may be informed regarding necessary restrictions on the
work or duties of an employee and necessary accommodations;

(2)
First aid and safety personnel may be informed (when appropriate) if the
employee’s physical or medical condition might require emergency treatment;
and

(3)
Government officials investigating compliance with FMLA (or other pertinent law)
shall be provided relevant information upon request.

29
C.F.R. § 825.500(g) (emphasis added). In response, the Secretary contends that
the opening part of this provision implicitly permits review and disclosure of
FMLA information for OSHA recordkeeping purposes because, he argues, the phrase
“maintained as confidential . . . records” is not an absolute requirement, but
rather allows disclosure for certain governmental purposes. We
disagree.

By
its terms, the confidentiality provision set forth in § 825.500(g) prohibits
disclosure of FMLA medical information to supervisors and managers unless the
information involves “necessary restrictions on the work or duties of an
employee and necessary accommodations”; or the information is necessary for
“emergency treatment.” 29 C.F.R. § 825.500(g)(3). See Superior Masonry
Builders, Inc ., 20 BNA OSHC 1182, 1184, 2002-04 CCH OSHD ¶ 32,667, p. 51,417
(No. 96-1043, 2003) (when determining the meaning of a standard, the Commission
first looks to its text and structure); Blount Int’l, Ltd ., 15 BNA OSHC
1897, 1902, 1991-93 CCH OSHD ¶ 29,854, p. 40,752 (No. 89-1394, 1992) (if
provision’s wording is unambiguous, the plain language of the standard will
govern, even if the Secretary posits a different interpretation). See also
Christensen v. Harris County , 529 U.S. 576, 583 (2000) (“[w]hen a statute
limits a thing to be done in a particular mode, it includes a negative of any
other mode”) (quoting Raleigh & Gaston R.R. Co. v. Reid , 80 U.S. 269,
270 (1871)). Because the provision plainly prohibits the use of FMLA
documentation for non-excepted purposes, we conclude that such documentation may
not be reviewed by an employer for OSHA recordkeeping purposes. See Worcester
Steel Erectors, Inc ., 16 BNA OSHC 1409, 1418-19, 1993-95 CCH OSHD
¶ 30,232, p. 41,635 (No. 89-1206, 1993) (rejecting Secretary’s
interpretation of a standard when it strains the plain meaning of the regulatory
text).

The
Secretary also contends that the express exception in subsection (g)(3) applies
here, because the OSH Act and OSHA recordkeeping regulations constitute “other
pertinent law.” 29 C.F.R. § 825.500(g)(3). This ignores, however, that the
exception’s plain language permits disclosure only to “government officials.”
The parenthetical reference to “other pertinent law” simply addresses the reason
government officials are seeking the documents, not to whom the documents may be
disclosed. Here, if the FMLA-protected information were to be disclosed, it
would go beyond government officials—it would be seen by USPS personnel
examining the FMLA documents for non-FMLA purposes; further, as required by the
OSHA recordkeeping regulations, USPS employees and their representatives have
access to the OSHA injury and illness records. 29 C.F.R. § 1904.35(b)(2).
Therefore, this exception, like the rest of the provision, is unambiguous—it
does not permit the disclosure of FMLA medical information for purposes of OSHA
recordkeeping.

See Superior Masonry , 20
BNA OSHC at 1184, 2002-04 CCH OSHD at p. 32,667; Blount Int’l , 15 BNA
OSHC at 1902, 1991-93 CCH OSHD at p. 40,752; Worcester Steel Erectors , 16
BNA OSHC at 1418-19, 1993-95 CCH OSHD at p. 41,635. In light of the foregoing,
USPS could not review the FMLA documentation to identify OSHA recordable
illnesses because USPS was prohibited from doing so under the FMLA regulations.
Therefore, we conclude that the Secretary has failed to establish constructive
knowledge as an element of its case here.

Contrary to the judge’s finding,
the record also fails to establish that USPS had actual knowledge of
Employee-A’s illness. The Secretary claims that the FMLA Coordinator who
received Employee-A’s WH-380 (which contained a medical diagnosis of her illness
and attributed the illness to her work) was a supervisor whose knowledge can be
imputed to USPS. See Access Equip. Sys., Inc. , 18 BNA OSHC 1718,
1726, 1999 CCH OSHD ¶ 31,821, p. 48,782 (No. 95-1449, 1999) (“[K]nowledge can be
imputed to the cited employer through its supervisory employee.”). The judge
agreed with the Secretary that the FMLA Coordinator was a supervisor. He also
made inferences regarding the knowledge of Employee-A’s work supervisor. We
decline to find knowledge on either of these bases.

To
determine whether an employee is a supervisor, the inquiry focuses on whether
the employee directed other employees’ work activities. Am. Eng’g & Dev.
Corp. , 23 BNA OSHC 2093, 2095-96, 2012 CCH OSHD ¶ 33,235, p. 56,116-17 (No.
10-0359, 2012) (imputing knowledge of backhoe operator who lacked authority to
hire or fire but was charged with giving work instructions and orders to other
employees); Dover Elevator Co. , 16 BNA OSHC 1281, 1286, 1993-95 CCH OSHD
¶ 30,148, p. 41,480 (No. 91-862, 1993) (“[A]n employee . . . empowered to direct
that corrective measures be taken is a supervisor[].”). Here, while the FMLA
Coordinator had authority to decide FMLA claims, this authority did not relate
to control of employee work, and the record does not show that the FMLA
Coordinator otherwise had the requisite control indicative of supervisory
status. Indeed, Kenn Messenger, a USPS manager, testified that FMLA Coordinators
have no “direct employees” and make no decisions about other employees’ work.
Thus, the Secretary has failed to establish USPS’s actual knowledge of
Employee-A’s illness through the FMLA Coordinator. Moreover, as indicated above,
even if the FMLA Coordinator had been a supervisor or USPS had otherwise known
of the illness from Employee-A’s WH-380, the FMLA confidentiality requirements
would have precluded recordation of the illness on the OSHA recordkeeping forms
required by 29 C.F.R. Part 1904.

Finally, there is no support in
the record for the conclusion that Employee-A’s work supervisor knew of her
illness from sources other than the FMLA documentation. First, despite the
Secretary’s contention that Employee-A “likely informed her supervisor of her
work-related illness,” there is no direct evidence that she or anyone else
informed her supervisor of her illness or the reason for her leave request, or
that the supervisor knew of it. The judge inferred such knowledge based on two
factors: (1) a letter from the FMLA Coordinator to Employee-A about her leave
request which, based on a notation on the letter, Employee-A’s supervisor
evidently saw, and (2) USPS’s FMLA claims procedure, under which supervisors are
to be informed of FMLA claims and approvals related to their subordinates.
However, the letter neither identified Employee-A’s condition nor indicated
whether it was work-related. Further, consistent with the FMLA confidentiality
provision, USPS’s FMLA claims procedure does not require supervisors to be
informed of the nature or work-relatedness of an employee’s health condition.
While the Secretary claims for the first time on review that, as a routine
matter, USPS employees reported work-related illnesses to their supervisors, and
it is thus “likely” that Employee-A did so here, the Secretary failed to prove
such a consistent pattern of conduct that would permit this to be deemed a
“routine practice” pursuant to Federal Rule of Evidence 406.

See Wilson v. Volkswagen of
Am., Inc. , 561 F.2d 494, 511 (4th Cir. 1977) (stating that examples
“numerous enough to base an inference of systematic conduct” are required to
establish routine practice) (internal citations omitted). Moreover, there is no
evidence that Employee-A’s supervisor ever observed Employee-A’s symptoms,
which, in any event, would not alone indicate that they were work-related. For
these reasons, we find the judge erred in concluding that the Secretary
established actual knowledge through Employee-A’s supervisor. Accordingly, the
Secretary has failed to establish USPS’s knowledge of Employee-A’s
illness.

ORDER

We
vacate the portion of Citation 1, Items 1a and 1b, that pertains to Employee-A’s
illness. We also agree with USPS that it is appropriate to reduce the penalty
because the citation is affirmed with respect to only one of the two employees
upon whom it was based. We therefore assess a penalty of
$2,500.

SO ORDERED.

/s/  

Thomasina
V. Rogers

Chairman

/s/  

Cynthia
L. Attwood

Commissioner

/s/  

Heather
L. MacDougall

Dated:  
September 29,
2014                                        Commissioner

United States of
America

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION

1120 20th Street, N.W.,
Ninth Floor

Washington, DC
20036-3457

SECRETARY OF
LABOR,                             :

:

Complainant,                            :

:

v.                                                           :                        OSHRC
DOCKET NO. 08-1547

:

U.S.
POSTAL SERVICE (Seattle, WA),
       :

:

Respondent.                              :

Appearances:    Evan
H. Nordby,
Esquire                                 Stephen
C. Yohay, Esquire

U.S.
Department of
Labor                                Ogletree
Deakins

Office
of the
Solicitor                          Leigh
Bonds, Equire

Seattle,
Washington                                         U.S.
Postal Service

For
the
Complainant.                                        For
the Respondent.

Before:              Chief
Judge Irving Sommer

DECISION
AND ORDER

This
proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) under section 10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq . (“the Act”). The Occupational Safety and
Health Administration (“OSHA”) conducted an inspection of a facility of the U.S.
Postal Service (“USPS”) in Seattle, Washington, from March 19, 2008 to May 23,
2008. As a result, on September 10, 2008, OSHA issued a citation alleging
“repeat” violations of 29 C.F.R. 1904.29(b)(2) and (b)(3) for failing to record
two work-related illnesses as required. Respondent USPS contested the citation.
The hearing in this matter was held in Seattle, Washington, on November 18
and19, 2009. Both parties have filed post-hearing briefs.

Background

The
cited facility is USPS’s Processing and Distribution Center (“P&DC”) in
Seattle, Washington. The P&DC is the main USPS facility in the Seattle area
for processing mail. It is a large facility with highly automated processing
equipment. The facility operates 24 hours a day, with three shifts, and has
about 1,200 employees. The non-supervisory workers consist of “regular” and
“casual” employees. Regular employees are represented by postal unions, and
their assignments are subject to collective bargaining agreements. Casual
employees are not represented by unions, and their work assignments vary
according to factors such as mail volume, unscheduled absences, and limits
imposed by the union agreements. Union agreements also limit the percentage of
casual workers at the P&DC. (Tr. 174-77,192-95, 202,
205-06).

“N.B.”
began working at the P&DC as a “Christmas casual” on November 7,
2007.

She worked on the night shift,
which started between 10 and 11 p.m. and ended between 6:30 and 7:30 a.m., and
she generally worked about 35 hours per week. At first she worked on the bar
code machine, where several supervisors told her she was doing a good job. In
late December 2007, N.B. went to see Dr. Zachariah at the Community Health
Center in Federal Way, Washington, for what she thought was the flu. Dr.
Zachariah, however, said she did not have the flu but a dust allergy and gave
her a prescription for an allergy medication and an inhaler. N.B. filled the
prescription at a pharmacy in Federal Way. Her only previous allergy diagnosis
had been to shrimp. (Tr. 89-94).

After
the Christmas season, the P&DC cut back the number of casuals in N.B.’s work
area but kept N.B. on. She started working at other mail sorting machines in
January 2008, such as the DIOS and DBCS machines.

N.B. requested a mask to work on
the DBCS machine, due to the dust that resulted from the mail sliding down the
feeder. Cliff Wind, the casuals’ supervisor, provided N.B. the mask, which
covered her mouth and nose. (Tr. 94-96, 120).

On
January 17, at 11 p.m., N.B. was assigned to be trained on the Flat Sorting
Machine (“FSM”). She stood by the machine as a co-worker showed her how to load
and feed the FSM. As the feeding process took place, N.B.’s eyes began burning,
itching and watering. Her face felt hot, like it was burning, and she also
smelled a burning “rubbery” smell. These symptoms began within 10 minutes of
beginning the feeding of the FSM. N.B. finished her training between 3 and 3:30
a.m. During her training, she took three or four quick restroom breaks to wash
her face, which helped the symptoms. She told her co-worker about the symptoms.
(Tr. 96-101, 105).

On
January 20, when N.B. reported for work, Rosanna Cortez, a supervisor, assigned
her to work on the FSM. While she was feeling fine when she got to work, N.B.
began to have the same symptoms as before within 10 minutes of beginning to feed
the FSM. As she continued to work on the machine, she also began experiencing
trouble breathing, as if pressure were being put on her chest. She told her
co-workers on the FSM of her symptoms, and one suggested she tell Richard Hitt,
the FSM supervisor. Since she could not leave the machine in the middle of
processing a “zone,” she continued to work but took short restroom breaks to
wash her face in between zones. After finishing the last zone, N.B. encountered
Mr. Hitt as she was leaving the restroom. Mr. Hitt told her she did not “look
good,” and she told him about her symptoms from working on the FSM. Mr. Hitt
took her to see Ms. Cortez. After discussing the matter, the two supervisors at
first told her to take her lunch break. Ms. Cortez then told her that she had no
more work for her that shift and that she should go home. N.B. waited until she
felt well enough to drive and then went home and used the medications Dr.
Zachariah had prescribed for her in December. The medications alleviated her
symptoms, and since she did not want to worry her husband, who had recently had
a heart attack, she decided not to call the doctor. (Tr.
102-09).

N.B.
returned to work as scheduled on January 24. She asked Ms. Cortez if she needed
to get a doctor’s note for having left early on January 21. Ms. Cortez told her
that since she was feeling fine upon her return, she did not need to get a
doctor’s note or other documentation. N.B. discussed with supervisors on several
more occasions the symptoms she had had while working on the FSM on January 20
and 21. On February 7, she told Mr. Wind about the symptoms and asked to be
reassigned from the FSM for her February 10 shift. She was nonetheless assigned
to the FSM on February 10, and she asked Ms. Cortez to reassign her, citing her
illness. Ms. Cortez told her they had no one else to work there and that N.B.
had to work on the FSM. Another casual traded places with N.B. on February 10
before the feeding of the FSM began. On February 15, another supervisor assigned
N.B. to the FSM. After N.B. convinced him that she should not work there, again
citing her illness, Christine Batara, a different supervisor, questioned her
about giving the supervisors a “hard time” about working on the FSM. N.B.
explained that, although she thought that the FSM was an easy place to work, it
made her ill. Ms. Batara indicated to N.B. that she could be terminated and
referred her to Mr. Wind, who told her that she had to either work on the FSM on
February 17 and 18 or call in sick. Mr. Wind ultimately allowed N.B. to exchange
assignments with another employee on February 17. During her shift on February
17, N.B. asked a technician to get her a dust sample from the FSM area so that
she could try to find out what was making her sick. (Tr.
109-19).

N.B.
did not work on February 18. On February 19, at the end of her shift, Mr. Wind
told N.B. that she had to go to her doctor and get documentation stating she
could work everywhere in the P&DC or she would be fired. That same day, N.B.
went to her regular doctor, Joy Ziemann, in Federal Way.

N.B. described her symptoms to Dr.
Ziemann, including her breathing difficulty, when she worked on feeding the FSM.
She also told her doctor she had taken the allergy medications Dr. Zachariah had
prescribed. At the end of the visit, Dr. Ziemann gave N.B. a note that gave a
diagnosis of “Allergic Reaction.” The note also stated that N.B. “should not
work the FSM (flat sort machine) due to allergic reaction.” Dr. Ziemann’s
records from the visit state the symptoms N.B. described, the doctor’s medical
conclusions, and the fact that Dr. Ziemann refilled the prescription for
loratadine, the allergy medication that Dr. Zachariah had prescribed. Dr.
Ziemann also referred N.B. to Franciscan Occupational Medicine for further
evaluation. (Tr. 119-29; C-4A, C-4B).

N.B.
visited Dr. Paul Darby of Franciscan Occupational Medicine on February 22, to
begin allergy testing. Dr. Darby took N.B.’s medical history, including the
symptoms she had had while working at the FSM. At the conclusion of the visit,
he gave N.B. a note setting out a diagnosis of “Allergic Reaction” and a “Key
Objective Finding” of “Allergic reaction, bronchospasm to machine dust from
[FSM].” Under “Other Restrictions,”the note stated: “No work with or in the area
of [FSM].” The note also stated that N.B. was not otherwise restricted and that
allergy testing was pending. N.B. took the notes from Drs. Darby and Ziemann to
the P&DC on the evening of February 22. She presented the notes to Ms.
Batara and Mr. Wind, and Ms. Batara initialed the notes as being received. N.B.
was not permitted to return to work, however, since the doctors’ notes did not
say that she could work on the FSM. N.B. then filled out the paperwork for, and
filed, a Federal Worker Compensation claim. She submitted two forms, as the
first form she filed was not the proper form. N.B. went back to Dr. Darby three
times for follow-up allergy testing, but she was never diagnosed with an allergy
to a specific substance. This was because Dr. Darby’s testing was basic
in-office testing, and while he was going to refer her to another doctor for
further allergy testing, those tests would have cost from $1,000.00 to
$5,000.00. N.B. was not able to pursue that testing because she could not afford
to pay for it out of her own pocket. (Tr. 128-45, 155-57; C-5A, C-5B, C-7,
C-8).

OSHA
initiated the inspection in this case after receiving complaints from N.B. and
another employee, “A.R.,” about the air quality in the areas where they worked
in the P&DC. The OSHA industrial hygienist (“IH”) who conducted the
inspection received medical information from the two employees indicating their
doctors believed the employees were allergic to the dust in their work
areas.

N.B. had been diagnosed as having
had an allergic reaction from working with the FSM, and, on February 22, she
provided the P&DC with doctors’ notes containing this information and
stating she should not work with or in the area of the FSM. A.R., the second
employee, had been diagnosed as having allergic rhinitis caused by the dust in
her work environment. On March 6, A.R. had submitted a Form WH-380 (completed by
her doctor, Lawrence Klassen) with this information to the P&DC to obtain
leave protected under the Family and Medical Leave Act (“FMLA”). The form also
indicated that the condition had caused A.R. to miss work and required leave as
needed and treatment with prescription medications. (Tr. 20, 24-30, 36-41; C-4B,
C-5B, C-6B, C-11).

Based
on her conversations with the employees and the medical information she
received, the IH concluded that the incidents relating to N.B. and A.R. were
required to be recorded on the P&DC’s illness/injury logs and incident
reports. When she requested the P&DC’s Form 300 illness/injury logs and Form
301 incident reports, however, she discovered that neither of the incidents had
been recorded. During her inspection, the IH found no other discrepancies in the
P&DC’s illness and injury record-keeping. (Tr. 20-23, 44-45,
66-67).

Admissibility
of Exhibits C-11 and C-12

At
the hearing, the Secretary moved to have Exhibits C-11 and C-12 admitted. USPS
objected, and I denied the motion. (Tr. 285-96). After the hearing, and upon
further review of the record in this matter, I concluded C-11 and C-12 should
have been admitted. On February 2, 2010, I issued an order admitting the
documents and giving the parties an opportunity to respond. Neither has done so,
but, for completeness of record, the reasons for admitting the documents
follow.

First,
C-11 and C-12 clearly relate to A.R., the second employee involved in this case.
C-11 and C-12 are both letters to A.R., on USPS letterhead, that address A.R.’s
request for FMLA-protected leave. C-11, dated March 6, states that USPS’s
Attendance Support Office had received the Form WH-380 her doctor had completed.
It also states that the form is incomplete and explains what additional
information is needed. C-11 is signed by “Fred Santiaguel, FMLA Coordinator Tour
3.” Below that signature is a “Note to Supervisor” that states: “Please have the
employee sign and date below verifying that s/he received his/her copy of this
letter and return the signed copy to me.” A.R.’s signature appears below that
note, as does the date March 8. C-12, dated April 8, is from USPS’s Human
Resources, Seattle District Headquarters. About halfway down the page, C-12
provides A.R.’s “Case ID” number, describes her condition as a “Serious Health”
condition, and categorizes it as a “Chronic Condition – Allergy.” It also
states: “Approved Date: 04/04/08.” C-12 additionally describes the facility’s
forthcoming transition to an interactive voice response (“IVR”) telephone system
for employees to call when reporting unscheduled absences. C-12 is also signed
by “Fred Santiaguel, FMLA Coordinator – T-3.”

Second,
USPS concedes A.R. was an employee of the Postal Service and that she submitted
an FMLA leave form to USPS. (Tr. 297). Further, Kenn Messenger, the former
senior manager for distribution operations at the P&DC, testified that he
had not seen C-11 and C-12 before but had seen similar letters, that he knew the
process by which application for leave under the FMLA was made, and that he had
received FMLA training as a manager with USPS. He was also familiar with USPS’s
transition to the IVR system, as described in C-12. (Tr. 278-88). Finally, AD
Flack, the OSHA IH who conducted the inspection, testified that C-11 was one of
the documents that A.R. had provided her during the inspection. (Tr. 40-41). I
agree with the Secretary that USPS cannot seriously object based on foundation
to admitting C-11 and C-12 into evidence. As the Secretary has pointed out, the
documents are from USPS’s own records and are self-authenticating.

(Tr. 295-96). For all of these
reasons, C-11 and C-12 were properly admitted into the record.

Admissibility of Exhibits C-4, C-5 and
C-6

Exhibits
C-4, C-5 and C-6 are the medical records relating to the two employees involved
in this matter, N.B. and A.R.

As USPS notes, I denied the
Secretary’s Motion in Limine to admit the documents prior to the hearing. As
USPS also notes, I expressed skepticism at the hearing about the reliability of
the information in C-5B, and the Secretary’s motion to admit that document was
at first denied. (Tr. 24-36). Later, upon further consideration, C-4A-B, C-5A-B
and C-6A-B were all admitted conditionally, subject to my determining their
admissibility, relevance and reliability.

(Tr. 72-86, 302-03). After
reviewing the entire record and the parties’ arguments in regard to these
documents, I find that the documents are admissible, relevant and
reliable.

Federal
Rule of Evidence (“FRE”) 803 sets out exceptions to the hearsay rule, even
though the declarant is available as a witness. FRE 803(4) provides the
following exception:

Statements made for purposes of
medical diagnosis or treatment and describing medical history, or past, or
present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonable pertinent to
diagnosis or treatment.

As
the Secretary asserts, the statements N.B. and A.R. made to their doctors in
regard to the symptoms they had experienced while working at the P&DC
facility were in furtherance of their respective diagnoses and treatments and
are thus admissible for the truth of the matters asserted therein under FRE
803(4). See U.S. v. Yazzie , 59 F.3d 807, 812 (9 th Cir.
1995).

Patient-declarants do not have to
be describing a current condition, as long as the court is satisfied the
statements were made to the doctor to be relied upon by the doctor in
furtherance of medical diagnosis and treatment.

Id . at 813. See also
U.S. v. Nick , 604 F.2d 1199, 1201-02 (9 th Cir. 1979); O’Gee v.
Dobbs Houses, Inc. , 570 F.2d 1084, 1087-89 (2d Cir. 1978). The out-of-court
statements can also relate to causation of the injury. Yazzie , 59 F.3d at
813; Nick , 604 F.2d at 1201-02. I agree with the Secretary that the
statements N.B. and A.R. made to their doctors as to the symptoms they had had
while working at the P&DC, as reflected in the documents in issue, are
admissible under FRE 803(4).

I
also agree with the Secretary that the statements in the documents that reflect
the doctors’ medical findings as to N.B. and A.R. are admissible. FRE 803(6),
another exception to the hearsay rule, even though the declarant is available as
a witness, provides for the admission of “Records of Regularly Conducted
Activity” as long as the records are properly certified by the custodian of the
records. C-4A, C-5A and C-6A are copies of the doctors’ records in this matter,
and they have been properly certified. As the Secretary notes, the Ninth Circuit
has held that medical records are “classic” business records admissible under
FRE 803(6). U.S. v. Hall , 419 F.3d 980, 987 (9 th Cir.
2005).

Having
found the documents admissible, I turn now to their relevance and reliability.
The documents are clearly relevant, as they support the Secretary’s assertion
that N.B. and A.R. were made ill by exposure to dust in their respective work
areas and that USPS was required to record their illnesses under the cited
standards. I also find that the documents are reliable. In this regard, I note
that N.B.’s testimony, which is summarized above in the background section of
this decision, was consistent with what she told Drs. Ziemann and Darby, as
reflected in C-4A and C-5A. And, her testimony was not refuted by other
witnesses who testified, as discussed below. I observed the demeanor of N.B. as
she testified, including her facial expressions and body language, and I found
her to be a credible and convincing witness. Her testimony is credited, and it
supports a conclusion that the statements in C-4A and C-5A are reliable. A.R.
did not testify. C-11 and C-12, however, show A.R. requested FMLA-protected
leave by submitting a Form WH-380 her doctor completed. They also show that
while A.R.’s request was initially found to be incomplete due to a lack of
certain information, it was approved on April 8. C-12 describes A.R.’s illness
as a “Serious Health” condition and categorizes it as a “Chronic Condition –
Allergy.” C-11 and C-12, USPS’s own records, support a conclusion that what A.R.
told her doctor, as in C-6A, was reliable. Finally, there is no reason to
question the medical findings of the doctors in this case, as set out in their
records.

I
have considered USPS’s arguments that the statements in C-4A-B, C-5A-B and
C-6A-B are inadmissible and its further arguments indicating that the claims of
N.B. and A.R. are suspect and unreliable. See, e.g. , R. Brief, pp. 16-18,
21-29. These arguments are rejected, and, as noted above, C-4A-B, C-5A-B and
C-6A are admitted and found to be relevant and reliable.

Whether USPS
Violated the Cited Standards

The
citation alleges that USPS violated 29 C.F.R. 1904.29(b)(2) and (b)(3) when it
did not record the incidents described above relating to N.B. and A.R. The cited
standards require that OSHA 300 Log entries and 301 Incident Reports be
completed “within seven (7) calendar days of receiving information that a
recordable injury or illness has occurred.” A “recordable injury or illness” is
a work-related injury or illness that results in “restricted work” and/or
“medical treatment beyond first aid,” among other possibilities. See 29
C.F.R. 1904.7(b)(1).

To
prove a violation of an OSHA standard, the Secretary must establish that: (1)
the standard applies; (2) the terms of the standard were not met; (3) employees
had access to or were exposed to the cited conditions; and (4) the employer knew
or could have known of the cited conditions with the exercise of reasonable
diligence. See, e.g., Kulka Constr. Mgmt. Corp. , 15 BNA OSHC 1870, 1873
(No. 88-1167, 1992). There is no dispute that USPS did not record the incidents
relating to N.B. and A.R. There is also no dispute that USPS received the notes
described above from N.B.’s doctors, that is, C-4B and C-5B, pp. 11-12, on
February 22. Further, based on my findings supra , USPS received the Form
WH-380, completed by A.R.’s doctor, on March 6, and USPS approved A.R.’s request
for FMLA leave on April 8. See C-11, C-12. USPS contends, however, that
the Secretary has not proved the incidents were work-related illnesses required
to be recorded. It also asserts that the Secretary has not proved the knowledge
element.

As
to whether the incidents were work-related illnesses, as the Secretary notes, an
injury or illness is “work-related” if “events or exposures at work either
caused or contributed to the problem.” Home Depot #6512 , 22 BNA OSHC
1863, 1865 (No. 07-0359, 2009) (citing Occupational Injury and Illness Recording
and Reporting Requirements: Final Rule, 66 Fed. Reg. 5916, 5917 (Jan. 19, 2001))
(“Final Rule”). “[P]ure speculation that ‘some’ event in the workplace may have
caused or contributed to an injury or illness” is not enough. Home Depot
at 1865. But, if the work itself is “a tangible, discernible causal factor,” an
injury or illness is work-related. Final Rule at 5929.

As
the Secretary also notes, the standard does not require a final diagnosis of a
particular illness or exposure to a specific substance, because the
record-keeping system is designed to gather information about what may be latent
trends in illnesses and injuries within the workforce. As OSHA stated in the
preamble to the Final Rule:

It
is evident from the statute that Congress wanted employers to keep accurate
records of non-minor injuries and illnesses, in part, to serve as a basis for
research on the causes and prevention of industrial accidents and diseases. This
research is needed, among other reasons, to further examine and understand those
occupational factors implicated as contributory causes in injuries and diseases.
To serve this purpose, the records
should include cases in which there is a tangible connection between work and an
injury or illness, even if the causal effect cannot be precisely quantified, or
weighed against non-occupational factors . (Emphasis
added).

Final Rule at 5930. The Secretary
points out that the preamble to the Final Rule cites approvingly to the
Commission’s approach in General Motors Corp. , 8 BNA OSHC 2036, 2039-40
(No. 76-5033, 1980). “The issue in General Motors was whether the employer was
required to record respiratory ailments of three employees, based on notations
from the employees’ treating physicians that their ailments were probably
related to exposure to a chemical substance at work.” Final Rule at 5930. The
Commission held the illnesses recordable. General Motors at
2040.

S. Brief, pp.
15-16.

USPS
agrees with the Secretary that the “tangible, discernable causal factor” is the
test to show that an injury or illness is work-related. It urges, however, that
a settlement between OSHA and NAM, the National Association of Manufacturers,
reached after NAM filed a challenge to the Final Rule, puts the burden on the
Secretary to show an injury or illness is work-related, as follows:

Section 1904.5(b)(3) states that
if it is not obvious whether the precipitating event or exposure occurred in the
work environment or elsewhere, the employer “must evaluate the employee’s work
duties and environment to decide whether or not one or more events or exposures
in the work environment caused or contributed to the resulting condition or
significantly aggravated a pre-existing condition.” This means that the employer
must make a determination whether it is more likely than not that work events or
exposures were a cause of the injury or illness, or a significant aggravation to
a pre-existing condition. If the employer decides the case is not work-related,
and OSHA subsequently issues a citation for failure to record, the Government would have the burden of
proving that the injury or illness was work-related . (Emphasis
added).

R.
Brief, pp. 12-14.

Based
on the foregoing, A.R.’s illness was work-related and recordable. The Form
WH-380 that her doctor completed describes A.R.’s medical condition as “allergic
rhinitis and conjunctivitis with severe eye & nose irritation/nosebleed
headaches caused by her work environment exclusively. Primarily dust as well as
environmental toxins.”

It states that the condition began
“12/07 (concurrent with assignment to present work station).” It also states
A.R.’s “episodes of debilitating symptoms occur several times a week requiring
to miss days to recover or leave early from work.” Finally, the form states that
A.R. will require ongoing treatment and absence from work for treatment “as
needed several times a yr.” The form describes the required regimen of continued
treatment as “Rx meds.” C-12 establishes that USPS ultimately accepted the
information submitted by A.R.’s doctor, in that it approved her request for FMLA
leave on April 8. C-12 also establishes that USPS itself classified A.R.’s
illness as a serious and chronic health condition. I find that the Form WH-380
and C-12 demonstrate that A.R.’s condition was work-related and
recordable.

I
also find that N.B.’s illness was work-related and recordable. C-4B, the note
from Dr. Ziemann, gives N.B.’s diagnosis as “Allergic Reaction.” It also states
that “she should not work the FSM (flat sort machine) due to allergic reaction.”
C-5B, pp. 11-12, the note from Dr. Darby, gives N.B.’s diagnosis as “Allergic
Reaction.” It states, under “Key Objective Finding(s),” “Allergic reaction,
bronchospasm to machine dust from Flat Sorting Machine.” It also states, under
“Other Restrictions/Instructions,” “No work with or in the area of Flat Sorting
Machine.” These two documents, in my view, show that N.B.’s illness was
work-related. They also show that the illness was recordable because N.B. was
restricted in her work duties.

USPS
points to certain testimony in support of its claim that N.B.’s illness was not
work-related and recordable. For example, Mr. Hitt, the FSM supervisor,
testified that as he recalled, N.B. had told him only that she was unable to
continue working on the FSM. He did not recall her describing any symptoms or
being in any distress or short of breath. (Tr. 164-66). On cross-examination,
however, Mr. Hitt agreed that in a phone interview with an OSHA official, he
stated that N.B. had told him the dust was excessive. He further agreed that he
had written and signed C-10, a “Memorandum to Record” dated April 11. (Tr.
169-72). C-10 states, in pertinent part, as follows:

On
21 January 2008, I had employee [N.B.], from Automation, on my AFSM 100s for
training. At that time, she approached me and informed me she was having
difficulty working on the AFSMs. She told me her eyes were affecting
her.

Rosanna
Cortez, a distribution operations supervisor at the P&DC, testified she
recalled Mr. Hitt bringing N.B. to her and stating that N.B. could not work at
the FSM. When Ms. Cortez asked why, N.B. said that “she was tired, it’s heavy
there, and it’s dusty.” As Ms. Cortez recalled, N.B. said nothing about having
had an allergic reaction to the FSM. Also, N.B.’s eyes did not appear to be red,
and she did not seem to be short of breath or to have any problems with her
face. (Tr. 267-70). On cross-examination, Ms. Cortez agreed she had written an
e-mail on February 8 to other supervisors at the P&DC that stated: “[N.B.]
asked NOT TO WORK on the AFSM due to dust problems; can we trade somebody to
work for her Sunday night?” Ms. Cortez also agreed she had told an OSHA official
that N.B. had had a “pretty good job performance.” (Tr.
272-77).

Pam
Cook, currently a senior manager at the P&DC, was a manager of distribution
operations at the P&DC in February 2008. She testified about the automated
equipment at the P&DC and the fact that extensive maintenance, including
vacuuming, is done of the equipment to ensure proper operation and that the
electric eyes are not obscured by dust. She said that, in her opinion, an FSM
does not give off enough dust to collect in a bag; to do so, one would need to
get the dust out of the vacuum bag a maintenance employee had filled upon
vacuuming the inside of an FSM. (Tr. 173-78, 187-92).

Ms.
Cook further testified that she first became aware of an employee not being able
to work on the FSM equipment in a staff meeting in which Mr. Wind reported it.
She told Mr. Wind that, per standard procedure, if the employee could not
perform the full functions of her job, she would need to provide medical
documentation stating what she could or could not do. Ms. Cook next heard about
the situation when Ms. Batara called her on February 22 about the medical
documentation that N.B. had provided. After Ms. Batara read her the doctors’
notes, Ms. Cook spoke to N.B. on the phone and told her the notes did not give
her a medical rationale that allowed her to make a decision about whether work
was available for her. She also told N.B. that she would need further
documentation that would explain in detail the medical rationale for N.B. not
being able to work on the FSM. Ms. Cook noted that it was not her job to decide
whether N.B. had reported a condition that was recordable on OSHA forms; that
was up to the safety office. (Tr. 196-203).

On
cross-examination, Ms. Cook stated that the only documents she had seen relating
to N.B. were the doctors’ notes. She agreed the note from Dr. Darby stated,
under “Other Restrictions,” “No work with or in the area of flat sorting
machine.” She also agreed that it stated: “Allergic reaction, bronchospasm to
machine dust from flat sorting machine.” See C-5B, p. 12. Despite these
statements, she wrote in a memo concerning N.B.: “Management is unaware of any
exposure to take precautions for.” In another memo, she wrote that: “It is a
fact that [N.B.] had some allergic reaction (January 21 st ) from
‘something.’”

Ms. Cook repeated that Dr. Darby’s
note did not provide a medical rationale as to why N.B. could not work on the
FSM. She stated that N.B. was not allowed to return to work because she (N.B.)
did not clarify her medical restrictions. She further stated that it was not her
role to question anything in the doctors’ notes; rather, she had to determine if
there was anywhere in the building she could place this particular employee. Ms.
Cook agreed she had not referred N.B. to another doctor for another medical
opinion. (Tr. 222-23, 235-62). When asked if she was aware of any
non-work-related exposure that could have caused N.B.’s condition, she
stated:

I
don’t have any knowledge that it even occurred personally. It’s all – this is
all after the fact hearsay to me. So, no I don’t have any facts that any of it
happened. I don’t have any knowledge that anything occurred, or whether any of
it’s true or untrue.

(Tr.
262).

I
disagree the foregoing supports USPS’s position. While Mr. Hitt and Ms. Cortez
indicated on direct that they did not recall N.B. being in any distress or
reporting any symptoms to them, their testimony on cross-examination in essence
contradicts their testimony on direct and supports the testimony of N.B. And,
Ms. Cook’s testimony about the extensive maintenance the P&DC equipment
undergoes, including the FSM, is no basis for concluding that the FSM does not
emit dust that may trigger an allergic reaction in some individuals, in light of
contrary evidence in the record.

Further, while Ms. Cook testified
as to her belief that N.B.’s doctors’ notes did not provide the “medical
rationale” she needed, that testimony does not establish that N.B.’s condition
was not work-related and recordable. In my view, the doctors’ notes, and
especially the one from Dr. Darby, provided USPS with a clear medical reason for
the likely cause of N.B.’s illness, that is, dust from the FSM. It also provided
a clear restriction to prevent a recurrence of her symptoms: “No work with or in
the area of Flat Sorting Machine.” The testimony of Ms. Cook shows that she
performed no actual “evaluation” of the cause of N.B.’s illness, as set out in
the OSHA/NAM settlement, which USPS has cited. See page 11, supra .
Her testimony also shows that she did not direct N.B. to get another medical
opinion. I find, therefore, that the Secretary has established that N.B.’s
illness was work-related and recordable and that USPS has not rebutted that
finding.

A
final argument of USPS is that N.B.’s illness was not recordable because it did
not meet the definition of “restricted work.” R. Brief, pp. 15, 22. Restricted
work includes situations where, as a result of work-related illness or injury, a
physician or other licensed health care professional recommends that the
employee not perform one or more of the routine functions of his or her job.
See 29 C.F.R. 1904.7(b)(4)(i). An employee’s “routine functions” are
those work activities the employee regularly performs at least once a week.
See 29 C.F.R. 1904.7(b)(4)(ii).

USPS
asserts that N.B.’s work on the FSM did not meet the above test because it was
not “routine.” It points out she was a casual employee with no routine
assignments and that she worked only intermittently on the FSM. R. Brief, p. 22.
The Secretary notes, however, that USPS’s own witnesses confirmed that working
at the FSM was a routine duty of casual employees. Ms. Cook testified casual
employees are hired and must be available to work throughout the P&DC as
needed. (Tr. 194-96, 205-06). Mr. Hitt testified that, as the FSM supervisor, he
had casuals working for him at least weekly. (Tr. 168). And, N.B. testified that
USPS tried to assign her to the FSM on multiple occasions over two weeks in
February 2008 and that she was terminated as she could not work on the FSM. (Tr.
107-20, 135-37). S. Brief, p. 20. In view of the record, I find that N.B.’s work
on the FSM met the definition of “routine functions” and resulted in “restricted
work” as set out in the standard.

Based
on the foregoing, the Secretary has met the first three elements of her burden
of proof. As to the fourth element, that is, knowledge, the Secretary must show
that USPS either knew, or could have known with the exercise of reasonable
diligence, that it was required to record the incidents relating to N.B. and
A.R. As to N.B., C-4B and C-5B, pp. 11-12, are the doctors’ notes N.B. presented
to Ms. Batara and Mr. Wind on February 22. As found above, those notes were
sufficient to inform USPS that N.B.’s illness was recordable. In particular, the
notes stated that she had had an allergic reaction to the dust from her work on
the FSM and that she should not work on the FSM. Ms. Batara and Mr. Wind were
both supervisors of N.B. (Tr. 91, 131-35, 197-98, 200). Further, Kenn Messenger
testified that employees report work-related illnesses and injuries to their
supervisors. (Tr. 282). And, Pam Cook testified that it is up to the P&DC’s
safety office to decide if an incident is recordable. (Tr. 203). It is
reasonable to infer from this testimony that an employee’s supervisor, upon
receiving information like the notes N.B. presented, is responsible for
providing the information to the safety office. The safety office then
determines if the incident is recordable. N.B.’s supervisors received her
doctors’ notes on February 22. The supervisors thus should have provided the
notes to the safety office for proper recording.

Because two of N.B.’s supervisors
were aware of her illness due to the doctors’ notes, their knowledge is
imputable to USPS. USPS has admitted that it did not record N.B.’s illness. It
was, therefore, in violation of the cited standards as to N.B.’s
illness.

As
to A.R., I find that the Form WH-380 that A.R.’s doctor completed, so that she
could apply for FMLA leave, provided the P&DC with clear notice that A.R.
had a work-related illness that was required to be recorded. Further, C-11 and
C-12, the letters from Mr. Santiaguel about her application, establish that
while her FMLA claim was initially found to be incomplete, it was approved on
April 8. C-12 refers to N.B.’s condition as a “Serious Health” condition and
categorizes it as a “Chronic Condition – Allergy.”

C-11 indicates A.R.’s supervisor
saw C-11. At the bottom of C-11, there is a “Note to Supervisor” that asks the
supervisor to have the employee sign and date the letter. A.R.’s signature
appears below the “Note” along with the date of March 8. It is thus reasonable
to infer that A.R.’s supervisor was aware of A.R.’s FMLA claim. This inference
is supported by Mr. Messenger’s testimony indicating that the employee lets her
supervisor know she will be requesting FMLA leave, after which the employee
submits the Form WH-380. His testimony also indicates the form may be given to
the supervisor, who routes it to the FMLA coordinator. The FMLA coordinator
decides whether to approve the application and, if it is approved, informs the
supervisor who administers the employee’s leave of that fact.

It is also reasonable to infer
that A.R.’s supervisor knew of her illness, in that A.R., according to the
WH-380, had missed work due to her illness. The evidence, therefore, supports a
conclusion that A.R.’s supervisor knew of her condition and should have reported
it to the safety office. The supervisor’s knowledge is imputable to
USPS.

I
also agree with the Secretary that Mr. Santiaguel, the FMLA coordinator who
approved A.R.’s application, was a supervisor for knowledge purposes in this
case. Mr. Messenger testified that FMLA coordinators review and decide FMLA
claims. He also testified that while FMLA coordinators do not actually supervise
anyone’s work, they are not union members and “their pay scale is executive and
administrative pay scale.” (Tr. 282-84, 293). As the Secretary notes, an
employee who has been delegated authority over other employees, even
temporarily, may be considered a supervisor for purposes of imputing knowledge.
See Propellex Corp. , 18 BNA OSHC 1677, 1680 (No. 96-265, 1999) (citation
omitted). I conclude, consequently, that Mr. Santiaguel was a supervisor for
purposes of knowledge in this matter and that, because he reviewed and approved
A.R.’s FMLA application, his knowledge of her condition may be imputed to
USPS.

Based
on the foregoing, the Secretary has shown that USPS had knowledge of the
illnesses of the two employees, A.R. and N.B. She has also shown that USPS had
knowledge their illnesses were required to be reported and recorded. The alleged
violations are accordingly affirmed.

Whether the
Violations were Repeated

To
demonstrate a “repeat” violation, the Secretary must establish the employer was
previously cited for a violation of the same regulation or condition, or one
that is substantially similar, and that the prior citation had become final
before the alleged repeat violation. Potlatch Corp. , 7 BNA OSHC 1061,
1063 (No. 16183, 1979). The Secretary’s Exhibit C-3 contains copies of a number
of final orders and informal settlement agreements, and related documents,
issued within the past three years for violations of 29 C.F.R. 1904.29(b). C-3
includes final orders for violations of 29 C.F.R. 1904.29(b)(3) that were issued
by OSHA’s Bellevue Area Office to other Seattle-area USPS
facilities.

USPS
does not dispute that the documents contained in C-3 show a prima facie case of
repeat violations. It urges, however, that that is not the end of the inquiry
and that the Secretary must also show the actual violations in this case were
substantially similar to those in C-3. R. Brief, pp. 32-34. Upon reviewing C-3,
I find that the Secretary has shown that the previous violations are
substantially similar to those in this case. In particular, several of the
previous citations alleged violations of 29 C.F.R. 1904.29(b)(3) in
circumstances similar to those in this case, that is, a recordable incident was
not recorded as required. The violations here were properly classified as
repeat. Items 1a and 1b of Repeat Citation,1 alleging violations of 29 C.F.R.
1904.29(b)(2) and 29 C.F.R. 1904.29(b)(3), are affirmed as repeat
violations.

Penalty
Discussion

The
Secretary has proposed a total penalty of $5,000.00 for Items 1a and 1b. In
assessing penalties, the Commission is to give due consideration to the gravity
of the violations and to the size, history and good faith of the employer.
See Section 17(j) of the Act. The Secretary asserts that the proposed
penalty is appropriate in view of USPS’s large size and the fact that USPS has
had multiple previous violations of OSHA’s record-keeping standards. The OSHA AD
who conducted the inspection testified in this regard (Tr. 42-43). I find the
proposed penalty of $5,000.00 to be appropriate. That penalty is accordingly
assessed.

Findings
of Fact and Conclusions of Law

The
foregoing decision constitutes my findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based
upon the foregoing findings of fact and conclusions of law, it is ordered
that:

1.
Repeat Citation 1, Items 1a and 1b, alleging violations of 29 C.F.R.
1904.29(b)(2) and 29 C.F.R. 1904.29(b)(3), is AFFIRMED, and a total penalty of
$5,000.00 is assessed.

/s/

Irving
Sommer

Chief
Judge

Date:     April
2, 2010

Washington,
D.C.