# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2004 Decided May 10, 2005

No. 04-1127

W AL -M ART S TORES

, I NC

., P ETITIONER

v.

S ECRETARY OF L

ABOR

, R ESPONDENT

On Petition for Review of an Order of the

Occupational Safety and Health Review Commission

Ronald W. Taylor argued the cause for petitioner. With him

on the briefs was Thomas H. Strong

.

John Shortall

, Attorney, U.S . Department of Labor, argued

the cause for respondent. With him on the brief were J oseph M.

Woodward , Associate Solicitor, and Charles F. James , Attorney.

Ann S. Rosenthal , Counsel, entered an appearance.

Before: G

INSBURG

, Chief Judge

, and R OGERS and R OBERTS

, Circuit Judges

.

Opinion for the Court filed by Chief Judge G INSBURG

.2

G INSBURG

, Chief Judge : The Secretary of Labor cited WalMart Stores, Inc. for obstructing a means of egress, in violation

of a safety standard promulgated pursuant to t he Occupational

Safety and Health Act. The citation alleges that Wal-Mart had

placed a portable conveyor rail system where i t could have

impeded employees from reaching an emergen cy exit. An

Administrative Law Judge upheld the citation, and h is decision

became the final decision of the Occupational Safety and Health

Revi ew Commission when it declined Wal-Mart’s petition for

di scretionary review. For the reasons stated below, we deny

Wal-Mart’s further petition for review.

I. Background

In November 2002 an OSHA compliance officer,

Gwendolyn Marino, inspected the Wal-Mart Supercenter in

Hoover, Alabama based upon a complaint about dangerous

conditions in the stockroom, which was used for receiving and

storing goods. In the stockroom she found five parallel storage

racks about 75 feet long with an aisle between every two racks.

Along the rear wall of the stockroom , perpendicular to the racks

and aisles, were three truck-bay doors that opened to a n outside

loading area; n

earby in the sidewall was an emergency exit.

Because three of the four aisles w ere blocked at one end by

stacked bo xes, only one aisle provided access to the emergency

exit.

Marino also observed a “mobile conveyor rail system,”

which was “knee to mid -thigh” in height, extending from one of

the truck-bay doors down the third aisle. Two employees were

unloading boxes from the conveyor ra il system, which lay

between them and the emergency exit 20 feet away. Because

the three aisles on their side of the conveyor rail system were

blocked by stacked boxes, they could not have gotten to the3

em ergency exit without either surmounting or disassembling the

conveyor rail system.

Based upon Marino’s report t h e Secretary issued a citation

to Wal-Mart fo r violation of 29 C.F.R. § 1910.37(k)(2) (2000),

which then provided: “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.” The citation

characterized Wal

-Mart’s violation as “repeated,” based upon an

earlier citation concerning a Wal-Mart Super center in Georgia,

and recommended a penalty of $25,000. Wal-Mart contested

the citation and, accordingly, a hearing was held before an ALJ,

who affirmed the violation and assessed a penalty of $5,0 0 0.

See Sec’y of Labor v. Wal-Mart Super Center [sic], 20 O.S.H.

Cas. (BNA) 1729, 2004 WL 334495 (2004).

Th e ALJ read § 1910.37(k)(2) as requiring a “continuous

and unobstructed

means of egress” and found the conveyor rail

system to be “an obstruction to the means of egress.” Id. at *4.

The ALJ found the violation to be both “serious” – because in

an emergency, “[w]he re every second counts,” an employee

could be “seriously injured by any delay” g e tting through an

obstructed egress, id. at *6

– and a “repeat violation,” i d

. at *7-

8. In the latter regard, the ALJ first rejected Wal-Mart’s

contention the citat

ion was not for a repeat violation because the

prior citation invoked by

the Secretary involved a different store,

and t hen held the present citation was “substantially similar” to

the prior citation, which was for placing shopping carts in the

“ path of egress,” in violation of the self-same § 1910.3 7(k)(2).

Id. at *8. Turning to the penalty to be assessed, the ALJ

r ehearsed the four criteria in § 17(j) of the Act, 29 U.S. C. §

666(j) (size of business; gravi ty of violation; good faith of

employer; and prior history of violatio ns), and assessed a penalty of $5,000. Id. at *9-10.4

Wal-Mart subsequently filed a petition for d iscretionary

review with the Commission. When the Commission declined,

Wal-Mart petitioned this court for review.

II. Analysis

Wal-Mart presses three arguments in its petition for review:

T he ALJ erred in finding the conveyor rail sy stem an

“obstruction” wit

hin the meaning of § 1910.37(k)(2); the record

does not support the ALJ’s finding the violation was “serious”;

nor should it be deemed a “repeat” violation.

Our standard of review is deferential. The Commission’s

findings of fact are conclusive if supported by substantial

evidence. 29 U.S.C. § 660(a). Moreover, we defer to the

Secretary’s interpretation of the Act and of regulations enacted

pursuant thereto so long as her interpretation is consistent with

the s tatute and otherwise reasonable. A .E. Staley Mfg. Co. v.

Sec’y of Labor , 295 F.3d 1341, 1345 (D.C. Cir. 2002).

A. Did Wal-Mart Violate the Standard?

Wal-Mart maintains the ALJ’s ho lding that the conveyor

rail system constituted an “obstruction” within the me aning of

§ 1910.37(k)(2) is “unsupported.” The ALJ reasoned that

[i] n an emergency situation, employees cannot be expected

to unlat ch the conveyor sections and push them apart,

especially if there are boxes on the conveyor. Smoke could

affect visibility, and employees could not see the latc hes.

Employees could panic in an emergency and their first

response m

ight be to climb or jump over the system, which

could result in injuries and time lost in reac h ing the exit. A

distance of 20 feet to the exit, which is blocked by the5

c onveyor rail system, is not insignificant as the employer

contends since time is critical in an emergency.

Wal-Mart Super Center

, 2004 WL 334495, at * 4. Wal-Mart

challenges this analysis on two grounds. First, Wal-Mart argues

§ 1910 .37(k)(2) cannot be read literally to prohibit every

obstruction that might delay an employee in reaching an exit

during an emergency because the standard does not prohibit

ever y condition that might cause a delay; by its terms the

standard recognizes both that an ex it door, which takes time to

open , may be part of a “means of egress,” and that in an

emergency employees may have to travel some distance – up to

400 feet in “a facility such as Wal-Mart’s”

– in order to reach an

exit.

Because an

exit door is itself a part of the “means of

egress,” s ee 29 C.F.R. § 1910.37(k)(2), however, it could no t

logically be considered an ob struction to a means of egress.

Furthermore, although the standard d oes not require that each

employee work immediately next to an emergenc y exit, that

cannot mean, as Wal-Mart argues, an e mployer may obstruct a

means of egress so long as the obstruction may be overcome by

an employee who works near to it in less time than another

employee, stationed farther away, could reach the exit in an

emergency. That suggestion is wholly inconsistent with the

clear command that “[m]eans of egress shall be continuously

maintained free of all obstructions or impediments to ful l instant

use.” 29 C.F.R. § 1910.37(k)(2).

Second, Wal-Mart s ays it did not obstruct the employees’

means of egress because they could have exited the stockroom

thro ugh the truck-bay doors, which they could reach without

either climbing o ver or disassembling the conveyor rail system.

As the ALJ explained, however, “The truck bay doors are not a6

‘safe access to a public way’ since employees would be req u ired

to jump 4 feet to the ground and could be injured jumping that

far. 29 C.F.R. § 1910.37(h)(1).” Wal-Mart Super Center , 2004

WL 334495, at *5. Moreover, the truck-bay doors often were

obstructed by trucks, and therefore were not “readily accessib l e

at all times,” 29 C.F.R. § 1910.37(f)(1) (2000), and could not be

considered the “exits” contemplated b y 29 C.F.R. §§

1910.35(a)-(c) and 1910.37(a)-(f) (2000).

In sum, subs tantial evidence supports the ALJ’s finding the

conveyor rail system

constituted an “obstruction” within the

meaning of § 1910.37(k)(2) and Wal-Mart has not shown the

ALJ’s interpretation of that standard to be unreasonable.

B. Was the Violation Serious?

Nex t

, Wal-Mart contends the ALJ erred in holding its

violatio n was “serious” within the meaning of 29 U.S.C. §

666(k), whic h provides, clearly enough albeit inelegantly, that

“a serious violatio n shall be deemed to exist in a place of

employment if there is a substantial probability that death or

serious physical harm could result from a condition whi ch exists

... in such place of employme n t.” Wal-Mart argues the ALJ

erred by ignori

ng the “actual conditions” at the store, including

“the [employees’] training, [and the] sprinkler system, fire

extinguishers, other exits, and nearby fire department.”

Alternatively, Wal-Mart maintains that, because of the “very

att enuated relationship between the existence of the violation

and the health and saf

ety of the employees, the Court may find

the violation de minimis .” See 29 § U.S.C. 658(a).

We have previously held that a violati on of a standard is

serio us if it “could eventuate in serious physical harm upon

other than a freakish or utterly implausible occurrence of7

circumsta nces.” B rock v. L.R. Willson & Sons, Inc.

, 773 F.2d

1377, 1388 (198 5). In holding Wal-Mart’s violation was

seri ous, the ALJ explained quite reasonably that in a fire or other

emergency, “[w]here

every second counts, employees could be

seriously injured by a ny delay.” W al-Mart Super Center

, 2004

WL 334495, at * 6. Accord Sec’y of Labor v. Tree of Life, Inc.

, 19 O.S.H. Cas. (BNA) 1535, 2001 WL 1154451, at *2 (2001)

(“Clearly, burns, smoke inhalation, and other potenti al injuries

caused by delays in exiting the wor kplace during an emergency

fall within the meaning of ‘serious physical harm’”).

Wal-Mart’s complaint th

at the ALJ failed to consider the

actual conditions at the store is beside the point. Wal-Mart does

not gainsay the ALJ’s reasoning that in an emergency

“employees could panic and forget their trai ning”; “the sprinkler

system might not be activated quickly enough and might not

dissipate the sm

oke”; and “the fire department could be

delayed. ” Wal-Mart Super Center , 2004 WL 334495, at *6.

N or does it argue that any of these contingencies should be

deemed “freakish or utterly implausible.” Because the ALJ was

free to consider any plausible cir cumstances that might

“eventuate in serious phy s ical harm,” we have no cause to

disturb his conclusion that the vio lation was “serious.” L .R.

Willson & Sons

, 773 F.2d at 1388; see also Cal. Stevedore &

Ballast Co. v. OSHRC , 517 F.2d 986, 988 (9th Cir. 1975)

(seriousness turns upon probability of serious inju ry if accident

occur s, not upon probability accident will occur). In any event,

we agree with the Secretary that the factors to which Wal-Mart

points, namely, the training of its employees, the presence of a

sprinkler system, and the proximity of a fire department, are

more properly considered (as they we re) in assessing the

“gra vity” of the violation, and hence the appropriate fine,

pursuant to 29 U.S.C. § 666(k).8

* Wal-Mart also argued to the ALJ that the repeat designation

is improper according to the Field Inspection Reference Manual

used by OSHA comp liance officers. The ALJ explained that the

provision cited by Wal-Mart applies on ly when a “national

inspection history has not been obtained”; Marino obtained such

a history before issuing the present citation. W al-Mart Super

Center

, 2004 WL 334 495, at *9. Wal-Mart raised this issue

anew in a single paragraph of it s opening brief, the Secretary

pointed to the ALJ’s holding, and Wal-Mart seems by its silence

in reply wisely to have abandoned the argument. We need not pause long over Wal-Mart ’s alternative

argumen t that any violation of the standard was so attenuated in

relation to the em

ployees’ safety and health as to be d e minimis

. As we have s een, Wal-Mart’s violation cannot be said to have

had “no direct

or immediate relationship to safety or health,”

which is what the statut e requires for a violation to be deemed

de minimis . 29 U.S.C. § 658(a); see also Conie Constr., Inc. v.

Reich

, 73 F.3d 3 82, 385 (D.C. Cir. 1995) (even if Commission,

rather than Se cretary, has authority to determine whether

violation is de minimis , determination is within its discretion).

C. Was it a Repeat Violation?

Wal-Mart makes two arguments that the ALJ erred in

holding its violation to be a repeat: the present and the prior

citations concerned substantia lly dissimilar conduct; and “the

Secretary

... failed to sho w that the citation was issued to the

same employer.” *

Th e Secretary “makes a p rima facie showing that a

violation is ‘repeat’ if

the prior and present violations are for

failure to comply with the same standard,” Manganas Painting

Co. v. Sec’y of Labor

, 273 F.3d 1131, 1135 (D.C. Cir. 2001), as9

they are in this case. Wal-Mart therefore has the burden of

“demonstrat[ing] that the two violations took place under

disparate conditions and hazards.” I d. Here, Wal-Mart argues

the present citation concerns a blocked “way of exit access”

whereas the prior citation concerned a blocked “exit”; as the two

quoted terms ref

er to separate parts of a “means of egress,” s e e

29 C.F.R. § 1910.35(a)(1) (“A means of egress ... consists of

three separate and di

stinct parts: the way of exit access, the exit,

and the way of ex

i t discharge”), the citations are for creating

different hazards. Whether the purported difference is

meaningful we need not decide, for Wal-Mart does n ot show

there was in fact a difference.

In support of its claim tha t the prior citation concerned a

blocked exit, Wal-Mart points to the citation itself and to

Marino’s testimony. The citation charged that “[s]hopping carts

were aligned against the walls adjacent to the emergency exi t

and found to be obstructing [the] path of egr e ss.” But “path of

egress” is an ambiguous phrase that does not app ear anywhere

in the standard; it could refer to an “exit” but it could also, and

indeed more naturally does, suggest either a “way of exit

access” or a “way of exit discharge.” Marino’s testimony is also

equivocal. Although she responded affirmatively when asked

whether the previous citatio n “issued because ... the exits were

actually being blocked by shopping carts,” Mar ino also testified

that she thought the “carts [were] in the aisleway.” In fact,

Marino did not see the violation in question; she was merely

interpreting the citation. Wal-Mart’s evidence, therefore, does

not carr y its burden of proving the two violations occurred

“under dis parate conditions and hazards.” M anganas Painting

Co. , 273 F.3d at 1135.

We are mindful a repeat violation shoul d not be defined in

such a way that an employer is disadvantaged merely for being10

large. S ee Caterpillar, Inc. v. Herman , 154 F.3d 400, 403 (7th

Cir. 1998) (observing need “[t]o distinguish between repeated

violations that reflect simply th e scale of a company’s

operations and those that in dicate a failure to learn from

experience”). Nevertheless, Wal-Mart, although large, has

o ffered no reasonable basis for concluding that the prior citation

should not have put it “on notice of the need to ta k e steps to

prevent the second violation.” Id.

Turning to Wal-Mart’s second argument, we conclude the

Company has not shown the present and the prior citations were

issued to different “employers.” Concerned that Wal-Mart’s

proposal to treat the two Wal-Mart st ores where the violations

occurred as separate employers would “fragment[]” “compliance

with [the Act],” Wal-Mart Super Center

, 2004 WL 334495 at *8

(quoting Sec’y of Labor v. Potlatch Corp.

, 7 O.S.H. Cas. (BNA)

1061, 1979 WL 61360 (1979)), the ALJ concluded that both

stores were part of a single employer, namely, Wal-Mart Stores,

Inc.

Wal-Mart’s only argument for treat ing the two stores as

different employers is that the two citatio ns were mailed to, and

identified the “employer” as, the W al-Mart stores at which the

violation in questio n took place. Both stores are, however,

owned by the same corpo ration: Marino testified that the

inspection report (OSHA Form 1A) for the store to which the

prior citation was issued listed Wal-Mart Stores, Inc. as the

“co n trolling corporation” and that the manager at the store to

which the present citation was issued told her the s tore was

owned by Wal-Mart Stores, Inc. Wal-Mart Super Center

, 2004

WL 334495 at *8. Neither is, as far as the record shows, a

separate legal en

tity with a juridical personality of its own. It

follo ws from the statutory definition of “employer” that the

same employer was charged in the present and the prior11

citations. S ee 29 U.S. C

. § 652(5) (“employer” is a “person

engaged in a business affecting commerce”) ; id. at § 652(4)

(“person” i

s “one or more individuals, partnerships, associations,

corporations , business trusts, legal representatives, or any

organized group of persons”).

III. Conclusion

For the forego ing reasons, Wal-Mart’s petition for review

is

Denied.