Macy's East, Inc.; Abraham & Straus, Inc.; Stern's Department Stores, Inc.

Plain-English summary

OSHA cited three department-store companies for 32 instances in which merchandise or display tables allegedly obstructed exit aisles. The judge had previously rejected the Secretary's position that the cited standard required 60-inch or 44-inch aisle clearance. Because OSHA did not calculate occupant loads or required exit capacity, the judge used the regulation's absolute minimum width of 28 inches to evaluate obstruction. He held that 29 aisles with at least 28 inches of clearance were not obstructed, and that serpentine display arrangements were not prohibited by the cited standard. Summary judgment was granted to the stores on those 29 instances. The three remaining instances, one blocked aisle and two narrower than 28 inches, were severed and assigned to later proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.37(k)(2)
• Outcome: Summary judgment was granted to the stores on 29 cited instances; three remaining instances were severed for later resolution.
• Key point: Without occupant-load evidence, exit-aisle displays did not violate the obstruction standard when at least 28 inches of clear width remained.

Full text (OSHRC public release)

                       UNITED STATES OF AMERICA
            OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

                                                            :

SECRETARY OF LABOR, :
Complainant, : OSHRC
: Docket Nos. 95-0893, 95-0895,
: 95-0897 & 95-0901

             v.                                             :
                                                            :

MACY’S EAST, INC. :
ABRAHAM & STRAUS, INC. :
STERN’S DEPARTMENT STORES, INC. :
Respondents. :
:
ORDER
These nine cases comprise a number of citations which, for the most part, relate to the means-
of-egress standards for ensuring employee safety from fire or other emergencies. They were assigned
to the undersigned in July 1995. Before embarking upon protracted discovery, counsel for
respondents made it clear that the one dominant issue affecting all three department stores was the
Secretary’s application of the obstruction!free requirements of § 1910.37(K)(2) for the stores’ exit
aisles.
On May 20, 1997, an order was entered granting summary judgment in respondents’ favor
with respect to the Secretary’s interpretation that the 37(K)(2) standard required a 60-inch or a 44-
inch width clearance for exit aisles. The ruling was confirmed on reconsideration by order entered
on June 5, 1997. On June 24, 1997, respondents renewed their motion for partial summary judgment
on the grounds that the Secretary was unable to establish that the exit aisles were obstructed or
blocked as charged in 32 separate instances. By order entered on September 23, 1997, summary
judgment was granted with respect to 29 of the 32 cited instances. Summary judgment was denied
as to the remaining three instances where one aisle was blocked (Docket No. 95-895), and two aisles
had less than the minimum 28 inches of width clearance (Docket No. 95-893).
On more than one occasion during the lengthy process that these cases have entailed, the
parties indicated that resolution of the 37(K)(2) issue would most likely lead to an amicable
settlement of all remaining issues. Unfortunately, that happy scenario has not come to pass. The
obstacle in the way of settlement is the open question of whether the Secretary will seek review of
the 37(K)(2) issue by the Commission. Counsel for the Secretary has reported that a determination
on that question is under consideration but there is no definite date as to when a decision will be
made. During a prehearing telephone conference held last October 31, both parties expressed the
view that the impasse offered no choice but to proceed to hearing on November 4, 1997, as
scheduled.
As the parties were informed during the telephone conference, it is believed that to hold a
hearing on the satellite issues in these nine cases before settling the question regarding the Secretary’s
position on the September 23 partial summary judgment, may unnecessarily engender tremendous
costs in time and money and impose great demands upon the undersigned. Accordingly, it is
ORDERED that the 29 citation items relating to the standard at § 1910.37(K)(2) cited in Docket
Nos. 95-893, 95-895, 95-897 and 95-901 for which summary judgment in favor of respondents has
been granted by order of September 23, 1997, are severed from those issues that remain for
resolution. It is further
ORDERED that, in the interest of efficient case management, the remaining contested matters will
be assigned new docket numbers, the parties to be notified of the new docket numbers at a later time.
The partial summary judgment of September 23, 1997, and all other papers comprising the
record shall be submitted to the Commission’s Executive Secretary on November 14, 1997. It will
become the final order of the Commission at the expiration of thirty (30) days from the date of
docketing by the Executive Secretary, unless within that time a Member of the Commission directs
that it be reviewed. All parties will be notified by the Executive Secretary of the date of docketing.

                                    RICHARD DeBENEDETTO
                                    Judge, OSHRC

Dated: November 3, 1997
Boston, Massachusetts

                                                2

UNITED STATES OF AMERICA

   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR :
:
Complainant :
: OSHRC DOCKET NOS. 95-0893
: thru 95-0901
v. :
:
MACY’S EAST, INC. :
ABRAHAM & STRAUS, INC. :
STERN’S DEPARTMENT STORES, INC. :
:
Respondent :

       ORDER ENTERED UPON RESPONDENTS’ RENEWED MOTION
                FOR PARTIAL SUMMARY JUDGMENT


   Respondents’ previously moved for partial summary judgment regarding the Secretary’s

application in these cases of the means!of!egress standard § 1910.37(K)(2) which reads:
Means of egress shall be continuously
maintained free of all obstructions or
impediments to full instant use in the
case of fire or other emergency.
Three reasons were offered in support of the motion, including the argument that the Secretary’s
interpretation of the standard as requiring a 60!inch or a 40!inch clearance for exit aisles was
unenforceably unreasonable. Summary judgment in favor of respondents was granted on that issue.
Respondents’ have renewed their motion for partial summary judgment on the grounds that
the Secretary cannot prove that the exit aisles were obstructed or blocked as charged by the
Secretary. Respondents’ were cited for 32 separate instances involving department stores located
at Walt Whitman Mall in Huntington Station, New York, at Roosevelt Field in Garden City, New
York, and at Smithaven Mall in Lake Grove, New York.
Here are some typical examples of the Secretary’s factual allegations (supported by affidavits
of the compliance officers), as described in the memorandum in opposition to respondents’ renewed
motion:

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Instance (a) involved the lower level, east side of the
Housewares Department, where display tables were so
placed as to prevent free movements to exits in the event
of fire or smoke. There were display tables of cheese
baskets blocking a main aisle so that there was only 40
inches of clearance. Secretary’s Memorandum at 4.

                   Instance (g) involved the first floor, north side of the
                   Junior’s/Cosmetics Departments, where display tables
                   were so placed as to prevent free movement to
                   exits in the event of fire or smoke. There were 4 glass
                   tables with shirts on them obstructing the main aisle.
                   Although the clearance in the aisle was greater than
                   5 feet at all locations, the tables were arranged in a
                   serpentine manner, requiring people to snake through
                   them. The clear, unobstructed clearance was 36 inches.
                   Secretary’s Memorandum at 5.

                   Instance (a) involved the first floor, main aisle west, in
                   the Cosmetics Department, where display tables were
                   so placed as to prevent free movement to exits in the
                   event of fire or smoke. The aisle was 11 feet 6 inches
                   wide, with 3 foot wide tables, resulting in approximately
                   48 inches clearance on either side. Secretary’s
                   Memorandum at 7.

In 29 of the 32 instances, the aisles had clearances ranging from 29 inches to 55 inches. There is only
one instance where the Secretary alleges that an exit route was “blocked” (i.e., “in the Maternity
Department, where a metal rack was so placed as to block the entrance to the fire stairs”).
Memorandum at 8. And there are two instances where at certain locations clearances were 25 inches
and 20 inches respectively. Secretary’s Memorandum at 9 and 11.
The issues raised in the motion for summary judgment cannot be properly addressed without
reference to other provisions contained in Subpart E of Part 1910 entitled Means of Egress. A good
starting point is to look at the definition of “means of egress”:

                                              -2-
                   Means of egress. A means of egress is a continuous
                   and unobstructed way of exit travel from any point
                   in a building or structure to a public way and consists
                   of three separate and distinct parts: the way of exit
                   access, the exit, and the way of exit discharge. A
                   means of egress comprises the vertical and horizontal
                   ways of travel and shall include intervening room

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spaces, doorways, hallways, corridors, passageways,
balconies, ramps, stairs, enclosures, lobbies, escala-
tors, horizontal exits, courts, and yards.
29 C.F.R. § 1910.35(a)
Paragraph (c) of § 1910.37 provides detailed specifications for calculating the width and
capacity required for each means of egress. The capacity is derived by the number of persons per unit
of exit width, and the exit route is measured in units of exit width of 22 inches. Paragraph (d)(1) of
§ 1910.37 addresses “Egress capacity and occupant load” in the following terms:
The capacity of means of egress for any floor, balcony,
tier, or other occupied space shall be sufficient for the
occupant load thereof. The occupant load shall be the
maximum number of persons that may be in the space
at any time.
In executing her enforcement strategy, the Secretary by!passed the onerous task of
computing the geometric values along the lines called for by the regulations in determining the proper
width of the exit route. That being the case, we are faced with the question of how to determine
whether the exit aisles were maintained free of obstructions to full instant use within the meaning of
§ 1910.37(K)(2).
The gist of the Secretary’s position appears to be that we must take the exit routes as the
compliance officers found them. That is to say, as the routes have been designated by the
respondents’ own designs and arrangements of the stores’ furnishings and merchandise, and that such
designated paths of travel must be kept clear and without encroachment regardless of the actual width
of the aisles.
Respondents’ contend that a determination of the “occupant load” is a prerequisite to

                                              -3-

establishing a violation of the cited 37 (K)(2) standard, and that in the absence of such evidence, the
Secretary cannot prove that the aisles were obstructed. Respondents’ Memorandum at 1, 6-7.
In the absence of information relative to the occupant load or exit capacity, the only logical
way to determine whether the cited 37(K)(2) requirement!!!that the means of egress be “free of all
obstructions... to full instant use”!!!has been violated, is to direct our attention to paragraph (f)(6)
of § 1910.37 which states that “[t]he minimum width of any way of exit access shall in no case be less
than 28 inches.” The use of 37(f)(6) as a frame of reference in which to determine whether the exit

                                               5

routes in these cases have met the clearance requirements of 37 (K)(2) does not in any way alter the
pleadings or the charges against respondents. Consequently, the following argument made by
respondents is not applicable:
To the extent that the Secretary will once again change
her position and argue that the aisle widths that are less
than twenty-eight inches constitute a violation, the
Secretary did not cite Respondents for having aisle
widths less than twenty-eight inches, and as this Court
stated in its Order, it is now too late for the
Secretary to amend the citation.
Respondents’ Memorandum at 3 n. 1.
Because the Secretary did not determine the exit route capacity based upon the occupant load,
the lines must be drawn at the minimum width of 28 inches. At this juncture, it is relevant to note the
following comments made by the Secretary in the preamble to the proposed rule to revise the means
of egress standard:
The purpose of this revision is to rewrite the existing
requirements of Subpart E in plain English so they
will be more understandable to employers, employees,
and others who use them. This revision does not in
any way change the regulatory obligations of employers
or the safety and health protections provided to
employees. To further the plain English goal, OSHA
is also proposing to change the name of Subpart E from
“Means of Egress” to “Exit Routes.”

                             *       *               *         *

                                               -4-

                   This project is a language revision project, not an effort
                   to substantively revise OSHA’s means of egress standards.
                   Therefore, the Agency has been careful to ensure that the
                   protections afforded to employees by Subpart E are not
                   weakened in the revision process. Employers who were
                   in compliance with Subpart E prior to this proposal will
                   continue to be in compliance with the new regulation after
                   it becomes effective.

                             *             *               *               *

                   In addition, the proposed revisions to Subpart E increase the
                   performance orientation and compliance flexibility of the
                   standards where national consensus standards have led the

                                               6

way (without, of course, reducing employee protection).
For example, § 1910.37(c) contains detailed specifications
for the number of persons per unit of exit width required
for each means of egress. These specifications are extremely
difficult for users to understand. The NFPA [National Fire
Protection Association] no longer relies on the number of
persons per unit of exit width to determine adequate exit
capacity. Instead, the NFPA’s Life Safety Code incorporates
the concept of exit geometry. Exit capacity, according to the
NFPA, is determined not by width alone, but by considering
the distance to be traveled to the exit and other factors affecting
the flow of people out of the workplace. The performance-
oriented language of the proposed regulations allows employers
to consider the newer NFPA approach.
61 Fed.Reg. 47712-14 (1996). (Emphasis added.)
What are the results of the proposed revision to Subpart E as they relate to the exit route
capacity? The complex exit geometry has been omitted and the following “performance-oriented”
criteria have been substituted:
§ 1910.36 Design requirements for exit routes.
* * * *
(i) The Capacity Of An Exit Route Must be Adequate.
Each exit route must support the maximum-permitted
occupant load for each floor served by the exit route.
The capacity of an exit must not decrease with the
direction of exit travel.

                                             -5-

                   (j) An Exit Must Meet Minimum Height and Width
                   Requirements.
                     (1) The exit route must be at least 6 feet, 8 inches
                     high at all points.
                     (2) An exit route must be at least 28 inches wide
                     at all points between handrails. An exit route
                     must be wider than 28 inches if necessary to
                    accommodate the expected occupant load.
                     (3) Objects that project into the exit route must
                     not reduce the minimum height and width of
                     the exit route.

Id. at 47719. (Emphasis added.)
In her comments, the Secretary emphasized the role to be played by current consensus
standards, including the National Fire Protection Association:
For some employers, reliance on performance-

                                              7

oriented regulations may create confusion as to
the specific precautions necessary in a variety
of situations. In the past, OSHA has used the
NFPA Life Safety Code as an aid in interpreting
Subpart E. OSHA intends to continue to rely
on the NFPA Life Safety Code and other consensus
standards as guidance in implementing performance
oriented requirements of revised Subpart E.
Id. at 47714.
This recent historical setting has been elaborately produced to remove any doubt about the
most vital aspect of this case, and that is that the Secretary always maintained and continues to
maintain the position that objects may project into the exit route provided the required width is not
reduced. Although it is no so clearly formulated, the language of the current regulations is readily
susceptible of such meaning.
We need pause only briefly to consider the question raised by the few citation items involving
aisles containing tables or other furnishings “arranged in a serpentine manner, requiring people to
snake through them.” Such a condition does not constitute an obstruction or impediment within the
purview of § 1910.37 (K)(2). In fact, the condition is dealt with under 37(g)(4) in connection with
“exterior way of exit”:

                                               -6-
                      A permanent, reasonably straight path of travel shall
                      be maintained over the required exterior way of
                      exit access....
   There being no evidence presented in these cases regarding occupant load so as to require an

exit route wider than the minimum 28!inch clearance, it is
ORDERED that respondents’ motion for partial summary judgment is granted with respect to the 29
cited instances where the aisles had width clearances of at least 28 inches. It is further ORDERED
that the motion for summary judgment is denied with respect to the remaining three cited instances
where one aisle was blocked, and two aisles had width clearances less than 28 inches.

                                                    RICHARD DeBENEDETTO
                                                    Judge, OSHRC

Dated: September 23, 1997
Boston, Massachusetts

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