United States Postal Service (ALJ decision, February 25, 2021)

Plain-English summary

OSHA inspected a Postal Service facility in Dora, Alabama after an employee complained about mold and mildew from water leaking onto ceiling tiles. The compliance officer observed stained and discolored ceiling tiles and insulation, but the record did not establish that mold or mildew was present, and remediation appeared to be underway. OSHA issued a repeat citation under the general housekeeping provision requiring clean, orderly, and sanitary conditions. The judge held that the 2016 revisions to Subpart D limited the cited provision to walking-working surfaces. Ceiling tiles are not surfaces on or through which employees walk, work, or gain access to a work area. Because the standard did not apply, the citation was vacated and the proposed $10,423 penalty was not assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.22(a)(1).
• Outcome: Repeat housekeeping citation vacated; no penalty assessed.
• Key point: After the 2016 Subpart D revisions, the housekeeping provision applies within the scope of walking-working surfaces and does not cover ceiling tiles.

Full text (OSHRC public release)


Document

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.
19-1072

UNITED STATES POSTAL SERVICE ,

Respondent .

DECISION AND ORDER

Attorneys

Christian P. Barber ,
Attorney,
Office of the Solicitor ,
U.S. Department of Labor,
Nashville ,
TN , for Complainant.

Michael R. Skahan ,
Attorney,
U.S. Postal Service, Southern Area Law Office ,
Dallas, TX,
f or
Respondent .

JUDGE: John B. Gatto , United States Administrative Law Judge.

I. INTRODUCTION

In this proceeding,
the United States Postal Service
( USPS ) was issued
a
one -item
c itation
with a proposed penalty of $10,423
under the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 651 et seq. , by the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) 1 for violating an OSHA general housekeeping standard, 29 C.F.R. § 19 10.22 ( a )(1) , when ceiling tiles allegedly “were not kept in sanitary condition in that water stains and discoloration were observed.” (Compl., Ex. A.) After USPS timely contested the citation, the Secretary of Labor filed a formal complaint with the Commission seeking an order affirming the citation and proposed penalty. 2 A bench trial was held in Birmingham, Alabama .

There is no dispute that jurisdiction of this action is conferred upon the Commission by section 10(c) of the Act, 29 U.S.C. § 659(c) . ( Ex. C-1
¶
1). The Court also finds, a nd the parties have
stipulated,
that
USPS
was engaged in a business affecting commerce and was an employer
within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3), (5) . ( Ex. C-1
¶
2).
Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and the arguments of counsel , the Court issues this Decision and Order , which constitutes its final disposition of the proceedings under section 661(j) of the Act. 29 U.S.C. § 661(j) . All arguments not expressly addressed have nevertheless been considered and rejected. 3

F or the reasons indicated
infra , the Court
holds
the Secretary has
not
proven
his
prima facie case ,
the
C itation
is
VACATED
and
no civil
penalty is
assessed .

II. BACKGROUND

USPS operates as a nationwide employer engaged in the business of providing postal services. (Ex. C-1 ¶¶ 2, 3.) It employs approximately 16 employees at its Dora, Alabama , Post Office facility. (Tr. 19-20; Ex. C-1 ¶¶ 3, 4.)

On April 2, 2019,
OSHA Compliance Safety and Health Officer Alisha Sledge
initiated an inspection of the Dora facility following an employee complaint , which alleged employee exposure to mold and mildew due to water leaking onto ceiling tiles throughout the building. (Tr. 16; Exs. C-1 ¶ 5; C-2, R-8.)

Sledge
completed a
walkaround inspection of the facility
and
observed water stains and discoloration on ceiling tiles and insulation in the mail sorting area, HVAC room, and utility closet. (Tr. 27-34; Ex. C-1 ¶ 6 ; see also Exs. C-9, C-10, C-13, C-14, C-15.) Although some of the ceiling tiles had been removed from the ceiling before the inspection , (C5, C-6; C - 8 to C-10; C-11 to C-13) , t here is no evidence in the record that the water stains and discoloration on ceiling tiles and insulation resulted in any mold or mildew . Sledge did acknowledge the appearance of remediation already underway on the day she inspected the facility. (Tr. 56-57.) Following the walkaround inspection, Sledge conducted interviews with two employees. (Tr. 34-35). As a result of the inspection, OSHA issued the one-item “repeat” 4 citation for a n alleged violation of 29 C.F.R. § 1910.22(a)(1). ( Compl., Ex. A; Tr. 35-36; Ex. R-1; see also Ex. C-1 ¶8.) 5

III.
ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries. Whirlpool Corp. v. Marshall , 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for ‘every working man and woman in the Nation. ’ ” Martin v. Occupational Safety & Health Review Comm'n ( CF & I Steel Corp. ) , 499 U.S. 144, 147 (1991) ( quoting 29 U.S.C. § 651(b)). “The Act charges the Secretary with responsibility for setting and enforcing workplace health and safety standards.” Id. “To implement its statutory purpose, Congress imposed dual obligations on employers. They must first comply with the ‘general duty’ to free the workplace of all recognized hazards.” ComTran Grp., Inc. v. U.S. Dep't of Labor , 722 F.3d 1304, 1307 (11th Cir. 2013). “They also have a ‘special duty’ to comply with all mandatory health and safety standards.” ( Id. citing id. at § 654(a)(2)).

“With respect to the latter, Congress provided for the promulgation and enforcement of the mandatory standards through a regulatory scheme that divides responsibilities between two federal agencies.” ( Id. ) “The Secretary establishes these standards through the exercise of rulemaking powers.” CF & I Steel Corp. , 499 U.S. at 147. See 29 U.S.C. § 665.

Pursuant to that authority, the standards at issue in this case were promulgated. Meanwhile, the Commission is assigned to carry out adjudicatory functions under the Act and serves “as a neutral arbiter and determine whether the Secretary's citations should be enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3, 7 (1985) (per curiam).

Under the law of the Eleventh Circuit where this case arose, 6
the Secretary will
make out a prima facie case for the violation of an OSHA standard by showing (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and importantly, (4) that the employer “knowingly disregarded” the Act’s requirements. ComTran , 722 F.3d at 1307; Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor , 567 F. App'x 801, 803 (11th Cir. 2014).

The cited regulation, s ection 1910.22(a)(1) ,
mandates that t he employer must ensure that “[a]ll places of employment, passageways, storerooms, service rooms, and walking-working surfaces are kept in a clean, orderly, and sanitary condition.” 29 C.F.R. § 1910.22(a)(1). As indicated supra , the citation a sserts USPS violated this general housekeeping standard when ceiling tiles in the mail sorting area, the HVAC room, and the utility closet allegedly “were not kept in sanitary condition in that water stains and discoloration were observed.” (Compl., Ex. A.)

The cited standard is contained in Part 1910, OSHA’s Occupational Safety and Health Standards, and more specifically, is found in Subpart D, the “Walking-Working Surfaces” S tandards. T h e Secretary a sserts that “ [b] y its own terms, the standard applies to “[a]ll places of employment, passageways, storerooms, service rooms, and walking-working surfaces.” (Sec’y’s Br. 6.) The Court finds no merit in the Secretary ’s position , which fails to acknowledge the 2016 amendments to Subpart D.

Prior to 2016,
Subpart
D
“include[d] separate scope requirements in various sections in the subpart[.] ” Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) , 81 Fed. Reg. 82494 (Nov. 18, 2016). And prior to 2016, section 1910.22 did have its own scope provision, which indicated it applie d “ to all permanent places of employment, except where domestic, mining, or agricultural work only is performed. ” 29 C.F.R. § 1910.22 (2014) . However, that provision was eliminated with the 2016 amendments to Subpart D.

Prior to 2016,
“[e]xisting subpart D [did] not have a single scope provision
that applie[d] to the entire subpart . ”
Walking-Working Surfaces , at
id .
( emphasis added ).
However, w ith the 2016 amendments,
OSHA
added
a new
single
scope provision ,
section
1910.21(a) ,
that
did
appl y
to the entire subpart.
That consolidated scope provision
provides
th at
Subpart D
“ covers all
walking-working surfaces
unless specifically excluded by an individual section of this subpart.”
29 C.F.R. § 1910.21(a)
(emphasis added) .
Thus, it is clear the consolidated scope provision contained in Subpart D’s section 1910.21(a) limits the applicability of the various sections in that subpart to “ walking-working surfaces,” including the cited s ection 1910.22(a)(1).

A
“walking-working surface” is defined as any “horizontal or vertical surface on or through which an employee walks, works, or gains access to a work area or workplace location .” 29 C.F.R. § 1910.21(b) (emphasis added) . Th us, th e plain language of the scope of Subpart D indicates the provisions of Subpart D do not apply to ceiling s tiles since , by definition, they are not “walking-working surface s ” since they are not s urface s “ on or through which an employee walks, works, or gains access to a work area or workplace location . ” 7

Therefore,
the Court concludes
that
after
the 2016 revisions to
Subpart D , it
only applie d
to “walking-working surfaces , ”
and
since
ceiling tiles
by definition
we re not
“walking-working surface s , ”
the Secretary
was
not authorized to cite
USPS for
ceiling tile
violation s
under
Subpart D
or any
individual section of th at
subpart , including
s ection 1910.22(a)(1) . Thus, the Secretary
has failed to make out a prima facie case for
a
violation
since
he failed to show that
s ection 1910.22(a)(1)
applied.
Accordingly,

IV.

ORDER

IT IS HEREBY ORDERED THAT
the c itation
is
VACATED
and
a civil penalty is not assessed.

SO
ORDERED .

/s/            

First Judge John B. Gatto

Dated: January 25, 2021

Washington, D.C.

"

1
The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order 8-2020, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety and Health , 85 Fed. Reg. 58393 (Sept. 18, 2020), superseding  Order No. 1–2012 , 77 Fed. Reg. 3912 (Jan. 25, 2012 ) ( Order No. 1–2012 was in effect when the citation was issued) . The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein.

2
Attached to the Complaint and adopted by reference was the citation at issue . (Compl., Ex. A) Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).

3
If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

4
The Act contemplates various grades of violations of the statute and its attendant regulations— “willful”; “repeated”; “serious”; and those determined “not to be of a serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. § 666. Only a serious violation is defined in the Act. See 29 U.S.C. § 666(k) .

5
USPS was previously cited for violations of this same standard in OSHA inspection number 1221504, citation number 1, item number 1, which was affirmed as a final order on August 18, 2017, with respect to a workplace located in Birmingham, Alabama, and in OSHA inspection number 1119279, citation number 1, item number 1, which was affirmed as a final order on December 30, 2016, with respect to a workplace located in Center Point, Alabama. (Ex. C-1 ¶¶10, 11; see also Exs. C-19, C- 20 . )

6
The employer or the Secretary may appeal a
final decision and
order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the D .C. Circuit. See 29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Dora, Alabama, in the Eleventh Circuit, and USPS’s principal place of business is in Washington, D.C., in the D .C. Circuit. See 29 U.S.C. § 660(b). The Commission has held that w here it is highly probable that a case will be appealed to a particular circuit, it generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission’s precedent. Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000). The Court therefore applies the precedent of the Eleventh Circuit in deciding the case where it is highly probable the case would be appealed.

7
“In situations in which ‘the meaning of [regulatory] language is not free from doubt,’ the reviewing court should give effect to the agency's interpretation so long as it is ‘reasonable,’ Ehlert v. United States , 402 U.S. 99, 105 (1971), that is, so long as the interpretation ‘sensibly conforms to the purpose and wording of the regulations,’ Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc. , 423 U.S. 12, 15 (1975).” Id. 149-50. Even assuming the language is ambiguous, t he Court does not find the Secretary’s position reasonable . I t does not sensibly conform to the purpose and wording of the regulation since a ceiling is not a horizontal or vertical s urface on or through which an employee walks, works, or gains access to a work area or workplace location .