THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS 

PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457 

 

 

OSHRC Docket No. 21-0794 

 

Appearances:

Marc G. Sheris, Esq., Department of Labor, Office of Solicitor, New York, New York

 For Complainant 

David P. Larson, Esq., U.S. Postal Service Law Department, National Employment 

Litigation Unit, Denver, Colorado 

 For Respondent 

Before: Covette Rooney, Chief Administrative Law Judge 

DECISION AND ORDER

Respondent, US Postal Service, Canóvanas Post Office (USPS), is a federal agency 

engaged in providing postal services and related activities with its principal office and place of 

business at 18400 Road 3, Suite 136, Belz Outlet, Canóvanas, Puerto Rico 00729. (Joint Pre-Hr’g

Statement ¶ 5, 4). On May 14, 2021, the Occupational Safety and Health Administration (OSHA) 

conducted an investigation, following a complaint about COVID-19 protocols not being followed 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

US POSTAL SERVICE-CANOVANAS

POST OFFICE,

 

 Respondent. 
2

at the Canóvanas Post Office. Id. After the investigation, the allegations alleging COVID-19 

protocols were not being followed were determined to be unsubstantiated by the facts. However, 

the investigation, through observations made in plain view, resulted in the issuance of a two-item 

citation (the Citation) to Respondent, alleging a serious violation of 29 C.F.R. § 1910.37(a)(3) and 

a serious violation of 29 C.F.R. § 1910.37(b)(2) of the Occupational Safety and Health Act of 

1970, 29 U.S.C. §§ 651-678 (the Act). The Citation alleged that Respondent’s employees were 

exposed to hazards presented by an obstructed exit route and hazards presented by the lack of an 

exit sign on a designated exit door. (See Citation). The Citation proposed a total penalty of 

$15,604. 

On July 28, 2021, Respondent timely filed a notice of contest, thereby bringing this matter 

before the Occupational Safety and Health Review Commission (the Commission). See 29 U.S.C. 

§ 659(c). A one-day hearing was held on May 10, 2022, by way of Cisco WebEx 

videoconferencing technology. The Secretary presented one witness: the Compliance Safety and 

Health Officer (CO) who conducted the investigation, Teodoro Rovira.1

 Respondent did not call 

any witnesses. (Tr. 85). Both parties filed timely post-hearing briefs and post-hearing reply briefs. 

For the reasons that follow, the Citation, alleging a serious violation of 29 C.F.R. 

§ 1910.37(a)(3) and a serious violation of 29 C.F.R. § 1910.37(b)(2), as amended, is affirmed and 

a penalty of $15,604 is assessed.

I. Motion to Amend

On May 12, 2022, two days after the hearing, the Secretary moved to amend its citation 

and complaint. On May 25, 2022, Respondent moved to strike and objected to the Secretary’s 

1 The witness testified succinctly, credibly, and without hesitancy, and his testimony is therefore given significant 

weight. 
3

Motion to Amend. After a thorough review as discussed below, the Secretary’s Motion to Amend 

the Citation and Complaint is Granted. 

The Secretary moved for an order amending only the alleged violation description (AVD) 

of Citation 1, Item 2 as follows (amendments in BOLD and strikethrough): 

29 C.F.R. § 1910.37(b)(2): Each exit was not clearly visible and marked by a sign 

reading “EXIT”:

a. On or about 14 May 2021, at USPS Canovanas Post Office; towards the rear 

of the facility at the Main Lobby/Customer Loading Area, a designated exit 

was not marked by an exit sign or any other means. 

The Secretary’s motion was filed 2 days after the hearing in this matter on May 12, 2022. 

In his Motion, the Secretary essentially contends the proposed amendment to the factual 

description of Citation 1, Item 2 more accurately describes the location of the violation in 

Respondent’s facility at the time of the OSHA inspection. The Secretary further contends that he 

introduced evidence at the hearing indicating the exit door cited in Item 2 was located near the 

back of the post office facility, leading to the exit discharge in the loading area. (Sec’y Mot. to 

Amend 4). The Secretary argues the amendment arises out of the same conduct, occurrences or 

hazards described in the original Citation and Notification of Penalties. (Id. 1). He argues that the 

CO, at the hearing, was extensively questioned and cross examined regarding the location of 

Citation 1, Item 2, that the Respondent had knowledge of the location since the time of OSHA’s 

closing conference in May 2021, and from the photographs jointly admitted into evidence as J-1, 

J-2, and J-3. (Id.1-6). Accordingly, the Secretary argues the corrected location of the violation 

alleged in Citation 1, Item 2 was clearly tried by implied consent. (Id. 3).

Respondent opposes the Secretary’s motion contending it is untimely, seeks to add 

additional evidence for consideration, and claims the amendment would essentially deny it due 

process. Respondent also asserts it would be prejudiced by the proposed amendment, as it 
4

defended under the initially cited allegations and would have defended differently under the 

proposed amendment. (Resp’t Opp’n to Mot. to Amend). 

Federal Rule of Civil Procedure 15(b)(2) provides: 

When an issue not raised by the pleadings is tried by the parties’ express or implied 

consent, it must be treated in all respects as if raised in the pleadings. A party may 

move – at any time, even after judgment – to amend the pleadings to conform them 

to the evidence and to raise an unpleaded issue... 

The key consideration regarding the propriety of a post-hearing amendment is whether the 

unpleaded issue was tried by express or implied consent of the parties. Fed. R. Civ. P. 15(b). 

It is well established that administrative pleadings are liberally construed and easily 

amended. Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977); Nat’l Realty & 

Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). “[A]mendments to a complaint are 

routinely permissible where they merely add an alternative legal theory but do not alter the 

essential factual allegations contained in the citation.” A. L. Baumgartner Constr., Inc., 16 BNA 

OSHC 1995, 1997 (No. 92-1022, 1994) (post-hearing sua sponte amendment by judge). The 

Commission has held that amendment is proper where the parties “squarely recognized that they 

were trying an unpleaded issue, and consent to try the unpleaded issue may be implied from the 

parties' conduct.” George Campbell Painting Corp., 18 BNA OSHC 1929, 1931 (No. 94-3121, 

1999) citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995). Consent is not 

implied by a party's failure to object to evidence that is relevant to both pleaded and unpleaded 

issues, at least in the absence of some obvious attempt to raise the unpleaded issue. McWilliams 

Forge Co., 11 BNA OSHC 2128, 2130 (No. 80-5868, 1984). 

Despite Respondent’s assertions, the record reveals that the nature of the amended 

allegation and the requirement for an exit sign on a door toward the rear of the facility were tried 

by consent here. During the hearing, the CO was questioned by Respondent about the specific 
5

door the CO was referring to in Citation 1, Item 2. (Tr. 71-74). The CO confirmed his testimony 

and exhibits referred to a door toward the back of the building. (Tr. 71-74; Exs. J-2, J-3, J-4, J4A).

The parties in this case “squarely recognized” that they were trying the issue of whether 

Respondent was in violation of 29 C.F.R. § 1910.37(b)(2) as it pertained to a designated exit door 

to the rear of the facility. Both parties knew from the inception of this case that Respondent was

defending against the alleged violation of 29 C.F.R. § 1910.37(b)(2) in regard to a door at the rear 

of Respondent’s facility. The Violation Worksheet for Citation 1, Item 2 which was produced to 

Respondent during discovery as Secretary’s Responses and Objections to the Respondent’s First 

Production Requests, states the location of the violation was “at the workfloor toward the exit to 

the reception platform.” (Sec’y Resps. and Objs. to the Resp’t First Produc. Req., Resp’t. Req. 

#1). During the course of the hearing, it became apparent Respondent was asserting that the cited 

standard did not apply to the door at the rear of the facility. 

The proposed amendment to the AVD does not raise any new questions of fact. The parties 

tried the factual issues relevant to the unpleaded AVD; therefore, the proposed amendment is 

permitted unless Respondent would be prejudiced by the amendment. 

Respondent claims that it will be prejudiced by the Secretary's motion in that it would have 

defended differently under the proposed standard. “[I]t is proper to look at whether the party had 

a fair opportunity to defend and whether it could have offered any additional evidence if the case 

were retried.” ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1822 (No. 88–2572, 1992). 

Respondent’s ability to prepare and present its case was not impaired by the change in 

AVD. As set forth above, the nature of the amended allegation and whether the requirement for 

an exit sign on a door toward the rear of the facility was complied with, on the day of the inspection, 
6

was fully litigated. Not only did Respondent not object to the litigation of the issue of the exit sign 

on a door to the rear of the facility, but it also specifically questioned the CO on it. Furthermore, 

Respondent did not seek to present any additional evidence at the hearing. Amending the citation 

AVD does not alter the essential allegations contained in the original citation AVD. Amendment 

of the citation conforms the pleadings to the evidence and causes no prejudice to Respondent. 

Having considered the pleadings and good cause having been shown, the Secretary’s 

Motion to Amend Citation and Complaint to allege a violation of 29 C.F.R. § 1910.37(b)(2) is 

GRANTED and the AVD for Citation 1, Item 2 is amended as follows: 

29 C.F.R. § 1910.37(b)(2): On or about 14 May 2021, at USPS Canovanas Post 

Office; towards the rear of the facility at the Loading Area, a designated exit was 

not marked by an exit sign or any other means. 

II. Stipulations & Jurisdiction

The parties stipulated to various facts, including several jurisdictional details. (Joint PreHr’g Statement). Based on the Joint Stipulations, the Court finds the Commission has jurisdiction 

over this action pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c). (Joint Pre-Hr’g Statement 

¶ 6, 4). Further, the Court obtained jurisdiction over this matter under section 10(c) of the Act 

upon Respondent’s timely filing of a notice of contest. 29 U.S.C. § 659(c). The Court also finds 

Respondent was an employer engaged in a business and industry affecting interstate commerce 

within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3), (5). 

III.Factual Background2

A. USPS Canóvanas Post Office 

Respondent operates as a nationwide employer engaged in providing postal services and 

related activities with its place of business at Canóvanas, Puerto Rico. (Joint Pre-Hr’g Statement). 

2 The factual background is based on the credible record evidence, as discussed below, and consideration of the record 

as a whole. Contrary evidence is not credited.
7

Many of the materials and supplies used and/or manufactured by Respondent originated and/or 

were shipped from outside the Commonwealth of Puerto Rico. (Joint Pre-Hr’g Statement ¶ 6, 4). 

At the time the Citation was issued, Respondent employed twenty-two employees at its Canóvanas, 

Puerto Rico, Post Office facility. (Tr. 33-34). 

On the day of the inspection, Respondent’s facility employees consisted of six carriers, 

four highway, three clerks, two management, and one maintenance. (Tr. 34). Mr. Tim Knowles 

was the Acting Postmaster for the facility. (Tr. 34).

B. OSHA Inspection 

On May 14, 2021, CO Teodoro Rovira conducted an onsite inspection at the Canóvanas 

Post Office located at 18400 Road 3, Suite 136, Belz Outlet in Canóvanas, Puerto Rico. (Tr. 16-

18; Joint Pre-Hr’g Statement). CO Rovira was assigned to conduct the inspection after the OSHA 

Puerto Rico Area Office had received a complaint that COVID-19 protocols were not being 

followed at the Canóvanas Post Office location. (Tr. 16-18). When CO Rovira arrived at the Post 

Office, he presented his badge to one of the postal clerks and asked to speak with an officer in 

charge or a postmaster. (Tr. 18-19). 

CO Rovira waited in the lobby of the Post Office for approximately 10 to 15 minutes before 

he was able to speak with an officer in charge concerning the COVID-19 complaint. (Tr. 19-20). 

While CO Rovira was waiting in the lobby, at the front of the building, he observed some shelving 

behind a door to the lobby. (Tr. 20-21; Ex. J-1). The door opened outward, from where 

Respondent’s employees worked, into the lobby. (Tr. 21; Ex. J-1). However, the door could not 

open all the way because it was blocked by shelving and packaging materials. (Tr. 21; Ex. J-1). 

CO Rovira noticed the shelving had packaging material for customers to buy and was affixed to 

the wall behind the door. (Tr. 21; Ex. J-1). CO Rovira testified that because he saw the condition 
8

of the door partially blocked by packaging materials on shelves, there was the potential for a fire 

safety hazard. (Tr. 21). He then determined that the scope of the investigation should be expanded 

to include an examination of the facility’s exits for safety hazards. (Tr. 21, 24-25). 

While waiting in the lobby, CO Rovira testified that he observed Respondent’s employees 

socially distancing themselves, wearing the proper protective equipment, and had hand sanitizer 

for customers to use. (Tr. 21-22). CO Rovira then proceeded to conduct his opening conference 

with the Acting Postmaster, Tim Knowles, Postal Service Safety Officer, Martin Ramos, by phone, 

and union representative, Javier Rivera. (Tr. 22-23). CO Rovira informed them that based on his 

observations of the partially blocked lobby door, he was going to expand the scope of the 

investigation beyond the original COVID-19 complaint to concentrate specifically on exits. (Tr. 

24-25). 

Following the opening conference, CO Rovira conducted a walk-around inspection of the 

facility with Safety Officer Martin Ramos and Acting Postmaster Tim Knowles. (Tr. 24-26). 

During the walk-around inspection, CO Rovira observed two hazardous conditions which he 

pinpointed for Mr. Ramos and Mr. Knowles. The two hazardous conditions CO Rovira observed 

were the partially blocked door to the lobby (at issue in Item 1) and another door at the “back of 

the building” (at issue in Item 2) which lacked any exit signs. (Tr. 25-26; Exs. J-1, J-2, J-3). 

At the end of the inspection, a closing conference was held where CO Rovira summarized 

the inspection and the violations he observed. (Tr. 26-27). As a result of the CO’s investigation, 

OSHA issued a two-item serious citation for alleged violations of 29 C.F.R. § 1910.37(a)(3) and 

29 C.F.R. § 1910.37(b)(2). 

IV. Analysis 

A. Law Applicable to Alleged Violations
9

 To establish a violation of an OSHA standard, the Secretary must prove: (1) the cited 

standard applies; (2) the terms of the standard were violated; (3) one or more employees had access 

to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence 

could have known, of the violative condition. Astra Pharm. Prods. Inc., No. 78-6247, 1981 WL 

18810, at *4 (OSHRC, July 30, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). 

The Secretary has the burden of establishing each element by a preponderance of the 

evidence. See The Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). 

“Preponderance of the evidence” has been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Preponderance of the evidence, Black’s Law Dictionary (10th ed. 2014) (emphasis added). 

1. Citation 1, Item 1 (Blocked Door at Front of Building) 

Complainant alleged a serious violation of the Act in Citation 1, Item 1, as follows: 

29 CFR 1910.37(a)(3)3

: Exit routes must be free and unobstructed. No materials 

or equipment may be placed, either permanently or temporarily, within the exit 

route. The exit access must not go through a room that can be locked, such as a 

bathroom, to reach an exit or exit discharge, nor may it lead into a dead-end 

corridor. Stairs or a ramp must be provided where the exit route is not substantially 

level.

 On or about 14 May 2021, at USPS Canóvanas Post Office; the egress route 

and access to an emergency exit door was obstructed by mail shipping 

materials, boxes and shelving. 

See Citation. 

3 29 C.F.R. § 1910.37(a)(3) states:

Exit routes must be free and unobstructed. No materials or equipment may be placed, either 

permanently or temporarily, within the exit route. The exit access must not go through a room that 

can be locked, such as a bathroom, to reach an exit or exit discharge, nor may it lead into a dead-end 

corridor. Stairs or a ramp must be provided where the exit route is not substantially level. 
10

a. The Standard Applies 

 “Under Commission precedent, however, the focus of the Secretary’s burden of proving 

that the cited standard applies pertains to the cited conditions, not the particular cited employer.” 

S. Pan Servs. Co., 25 BNA OSHC 1081, 1084 (No. 08-0866, 2014). In the case before this Court,

the conditions of the hazard are the critical element, not the employer. A further example has been 

noted in Ryder Transportation Services, where it was noted that “that the Secretary has failed to 

establish that the cited general industry standard applies to the working conditions here”). Ryder 

Transp. Servs., 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014). The Commission also articulated 

this in finding “the cited ... provision was applicable to the conditions in [Respondent’s] traffic 

control zone.” KS Energy Servs., Inc., 22 BNA OSHC 1261, 1267 (No. 06-1416, 2008) Further 

the Commission found that “[i]n order to establish a violation, the Secretary must show that the 

standards applied to the cited conditions.” Arcon, Inc., 20 BNA OSHC 1760, 1763 (No. 99-1707, 

2004). The Secretary has met his burden here.

It is undisputed that Respondent operates as a nationwide employer engaged in providing 

postal services and related activities with its workplace at Canóvanas, Puerto Rico. (Joint PreHr’g Statement). The scope of the general industry Exit Routes and Emergency Planning covers 

every employer and every exit route. See 29 C.F.R. § 1910.34. Therefore, Respondent would fall 

under the purview of Part 1910 as a covered employer. Section 1910.37(a)(3) calls for all exit 

routes to be “free and unobstructed” and “[n]o materials or equipment may be placed, either 

permanently or temporarily, within the exit route.” Exit route is defined in general industry 

standard 29 C.F.R. § 1910.34(c) as:

“[A] continuous and unobstructed path of exit travel from any point within a 

workplace to a place of safety (including refuge areas). An exit route consists of 
11

three parts: The exit access4; the exit5; and, the exit discharge6. (An exit route 

includes all vertical and horizontal areas along the route.)” 

29 C.F.R. § 1910.34(c). 

The Secretary contends that standard 29 C.F.R. § 1910.37(a)(3) is applicable to 

Respondent’s Post Office. He argues that by the standard’s plain terms, it applies to the door in 

question because it is part of an exit route. (Sec’y Br. 6). The exit route is presented on Exhibit 

J-4A as the exit access path through T-6, through the exit door labeled as A, out of the lobby exit 

doors (exit discharge) labeled as B, and then leading directly outside of the facility. (Sec’y Reply 

Br. 3-4). Respondent argues that the map of the facility does not identify the cited door at the front 

of the facility as an exit door. (Resp’t Br. 4). 

When interpreting a standard, the first consideration is the plain text of the standard. “If 

the meaning of the [regulatory] language is ‘sufficiently clear,’ the inquiry ends there.” The Davey 

Tree Expert Co., 25 BNA OSHC 1933, 1934, 1937 (No. 11-2556, 2016), quoting Beverly 

Healthcare-Hillview, 21 BNA OSHC 1684, 1685 (No. 04-1091, 2006) (consolidated), aff’d in 

relevant part, 541 F.3d 193 (3d Cir. 2008). The regulatory language is considered ambiguous 

where the meaning is “not free from doubt.” Martin v. OSHRC (CF&I), 499 U.S. 144, 150-51 

(1991). 

Here, the plain text of the standard supports the Secretary’s interpretation that the cited 

door was part of an exit route. The cited door is part of a continuous path of travel from within 

the facility’s workplace to the lobby exit. (Tr. 40-43; Exs. J-4, J-4A). It is undisputed that the 

4 Exit access is defined as the “portion of an exit route that leads to an exit...” 29 C.F.R. § 1910.34 (c).

5 Exit is defined as the “portion of an exit route that is generally separated from other areas to provide a protected 

way of travel to the exit discharge...” 29 C.F.R. § 1910.34 (c).

6 Exit discharge is defined as “[T]he part of the exit route that leads directly outside or to a street, walkway, refuge 

area, public way, or open space with access to the outside...” 29 C.F.R. § 1910.34 (c).
12

cited door is the only door employees can use to access the lobby from the employee work area. 

(Resp’t Br. 2). The map of the facility, cited to by Respondent, even labels the doors in the lobby 

as exits. (Ex. J-4). The record reveals the exit access as the route through T-6 (on Exhibit J-4A), 

through the exit door labeled as A (the cited door), and through the lobby exit discharge labeled 

as B to outside of the facility. (Tr. 36-43; Ex. J-4A). All of the elements of an exit route described 

in general industry standard 29 C.F.R. § 1910.34(c) are met. Nowhere does 29 C.F.R. § 1910.34(c)

mention an employer specifically designated exit is required as an element of establishing an exit 

route. The Court finds 29 C.F.R. § 1910.37(a)(3) applies. 

b. The Standard was Violated. 

The Secretary argues that Respondent failed to comply with the requirements of 29 C.F.R. 

§ 1910.37(a)(3). He contends that the exit route through the lobby to the exit discharge leading 

out of the facility was obstructed. (Sec’y Br. 7). Respondent does not dispute that the door in 

question was partially obstructed. (See Resp’t Br. 4-5). However, Respondent does argue that the 

door to the lobby was not an exit door and is not identified as such. (Resp’t Br. 4). Respondent 

contends other exits exist and are clearly identified on the map of the facility. (Resp’t Br. 4). 

The record is clear, the door into the lobby was prevented from fully opening because 

shelves containing packing and shipping material were affixed to the wall behind the door. (Tr. 

20-21; Ex. J-1). The shelves containing packing and shipping material effectively obstructed the 

path from a point within the facility, where employees were working, to an exit discharge out of 

the facility. (Tr. 20-25, 28, 36; Ex. J-1). The standard required Respondent to keep all exit routes 

“free and unobstructed” from any permanent or temporary materials or equipment that could 

obstruct the route. See 29 C.F.R. § 1910.37(a)(3). Here, the shelves and packing material 

obstructed an exit route from an area where employees were working to the lobby exits out of the 
13

facility. (Tr. 20-25, 28, 36; Ex. J-1, J-4, J-4A). Although there were other routes to exit discharges 

(two doors to the back of the facility at the loading bay), their presence does not eliminate the 

hazard posed by the obstructed door in question. See Gould Publ’ns, 16 BNA OSHC 1923, 1924 

(No. 89-2033, 1994) (multiple routes do not eliminate a hazard per se); see also Hackney/Brighton 

Corp., 15 BNA OSHC 1886, 1991-93 (No. 88-610, 1992) (violation despite presence of several 

other doors). 

 Accordingly, in light of the abovementioned, the Court finds Respondent violated the terms 

of the standard. 

c. Employees were Exposed to a Hazardous Condition 

 “The Secretary always bears the burden of proving employee exposure to the violative 

conditions.” Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) 

(citations and footnotes omitted). The Commission’s test for hazard exposure requires the 

Secretary to “show that it is reasonably predictable either by operational necessity or otherwise 

(including inadvertence), that employees have been, are, or will be in the zone of danger.” Delek 

Ref., Ltd., 25 BNA OSHC 1365, 1374 (No. 08-1386, 2015) (citing Fabricated Metal Prods. 18 

BNA OSHC at 1074); aff’d in relevant part, 845 F.3d 170 (5th Cir. 2016) See also Rockwell Intl. 

Corp., 9 BNA OSHC 1092 (No. 12470, 1980), rev’d on other grounds, George C. Christopher & 

Sons, Inc., 10 BNA OSHC 1436, 1442 (No. 76-647, 1982); Gilles & Cotting, 3 BNA OSHC 2002 

(No. 504, 1976).7

The zone of danger is the “area surrounding the violative condition that presents the danger 

to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013)

7 In Gilles & Cotting, Inc., the Commission rejected the “actual exposure” test, which required evidence that someone 

observed the violative conduct, in favor of the concept of “access,” which focuses on the possibility of exposure under 

the conditions. See Gilles & Cotting, Inc., 3 BNA OSHC at 2003 (holding “that a rule of access based on reasonable 

predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”). 
14

(citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger 

is determined by the hazard presented by the violative condition and is normally the area 

surrounding the violative condition that presents the danger to employees which the standard is 

intended to prevent. RGM Constr., 17 BNA OSHC at 1234; Gilles & Cotting, Inc., 3 BNA OSHC 

at 2003. 

Respondent’s employees were exposed to a hazardous condition. Exposure is met by an 

employee’s mere access to a hazardous situation. Gilles & Cotting, Inc., 3 BNA OSHC at 2003. 

Respondent employs twenty-two employees, which includes the 16 who were on site the date of 

the inspection. (Tr. 33-34). It is undisputed that Respondent’s postal clerks and management 

worked near the front of the facility near the obstructed doorway. (Tr. 40-42; Exs. J-4, J-4A). 

These employees were working near shipping and boxing material. (Tr. 40-42; Exs. J-1, J-4, J4A). The record indicates that in the event of a fire, particularly in the locations annotated 

“Parcels,” “Boxes Area,” or “Registry” on the facility map, the obstructed doorway, at A, could 

prevent the quick escape of any of the employees working in the frontend of the facility. (Tr. 40-

43; Exs. J-4, J-4A). 

 As such, the Court finds Respondent’s employees were exposed to a hazardous condition. 

d. Knowledge 

Respondent’s knowledge of the violation may be established by showing the employer 

knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C. 

§ 666(k); Ormet Corp., 14 BNA OSHC 2134, 2135 (No. 85-531, 1991). An employer is required 

to make a reasonable effort to anticipate the particular hazards to which its employees may be 

exposed during the course of their scheduled work. Automatic Sprinkler Corp. of Am., 8 BNA 

OSHC 1384, 1387 (No. 76-5089, 1980). When determining whether an employer has been 
15

reasonably diligent, the Commission considers “several factors, including the employer’s 

obligation to have adequate work rules and training programs, to adequately supervise employees, 

to anticipate hazards to which employees may be exposed, and to take measures to prevent the 

occurrence of violations.” Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 

2001). 

An employer’s awareness of the violation may be shown through actual or constructive 

knowledge of said violation. It is not necessary to show the employer knew or understood the 

condition was hazardous. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 

1995) (citations omitted). “[An] employer’s duty is to take reasonably diligent measures to inspect 

its worksite and discover hazardous conditions; so long as the employer does so, it is not in 

violation simply because it has not detected or become aware of every instance of a hazard.” 

Ragnar Benson, Inc., No. 97-1676, 1999 WL 770809, at *3 (OSHRC, Sept. 27, 1999) (emphasis 

in original). An employer is not automatically aware of a hazard in plain view, especially if not 

observed by a supervisory employee. Cranesville Block Co., Inc./Clark Division, Nos. 08-0316 & 

08-0317, 2012 WL 2365498, at *10 (OSHRC, June 12, 2012). The actual or constructive 

knowledge of a foreman or supervisor can generally be imputed to the employer. Tampa 

Shipyards, 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (citing A.P. O'Horo Co., 

14 BNA OSHC 2004, 2007 (No. 85-369, 1991)); N&N Contractors, Inc., 18 BNA OSHC 2121, 

2123 (No. 96-0606, 2000) aff’d, 255 F.3d 122 (4th Cir. 2001). 

The Secretary contends that Respondent had both actual and constructive knowledge due 

to the readily apparent and plainly visible hazard. (Sec’y Br. 8-9). An employer can be deemed 

to have constructive knowledge of a violation that is in plain view. Kokosing Constr. Co., 17 BNA 

OSHC 1869, 1871 (No. 92-2596, 1996). The Secretary argues that the doorway to the lobby was 
16

in plain sight and obstructed by shelving filled with packing and shipping material, which could 

have easily been noticed by supervisory personnel. (Sec’y Br. 9). Further, the Secretary argues 

Respondent failed to exercise reasonable diligence to discover the longstanding affixed shelves 

and materials partially blocking the door. (Id.). Consideration of “reasonable diligence” includes 

an examination of the employer’s “obligation to inspect the work area, to anticipate hazards to 

which employees may be exposed, and to take measures to prevent the occurrence.” Frank 

Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981). Under Commission precedent, 

“reasonable steps to monitor compliance with safety requirements are part of an effective safety 

program.” Sw. Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000). “Reasonable 

diligence implies effort, attention, and action; not mere reliance upon another to make violations 

known.” N & N Contractors, Inc., 18 BNA OSHC at 2124. 

Respondent failed to exercise reasonable diligence to discover the violative condition and 

take steps within its power to protect its employees from the violative condition. CO Rovira 

testified that Respondent did not have a health and safety program. (Tr. 47, 62). Additionally, the 

record reveals the violative condition was in plain view from multiple locations, including the 

lobby and management personnel’s offices, in Respondent’s facility. (Tr. 20-21, 40-43; Exs. J-1, 

J-4, J-4A). The Postmaster’s and management’s offices were directly connected to the obstructed 

doorway. (Tr. 35, 40-43; Exs. J-1, J-4, J-4A). Respondent’s employees and management worked 

inside the facility on a daily basis in close proximity to the obstructed doorway. (Tr. 34-35). 

Further, it is undisputed that Respondent’s evacuation plan, which is required to be posted for 

every employee to see, shows the door labeled A is the only door in the front of the building by 

which access from the employee work area to the lobby can be obtained. (Tr. 51-52, 67-70; Exs. 
17

J-4, J-4A). Respondent could have known of the presence of the violative condition with the 

exercise of reasonable diligence. 

When the Secretary shows that a supervisor had constructive knowledge of the violation, 

such knowledge is generally imputed to the employer. See Ga. Elec. Co. v. Marshall, 595 F.2d 

309, 321 (5th Cir. 1979); N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d Cir. 

1996); Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999). As the 

Postmaster and supervisory personnel had offices with plainly visible views of the violative 

condition, their constructive knowledge is imputed to Respondent. See Tampa Shipyards, 15 BNA 

OSHC at 1537. 

Constructive knowledge of the violative condition is established. The Secretary has 

proven all elements of his prima facie case. 

2. Citation 1, Item 2 (Rear Exit Door)

Complainant alleged a serious violation of the Act in Citation 1, Item 2, as amended, as 

follows: 

29 CFR 1910.37(b)(2): Each exit was not clearly visible and marked by a sign 

reading "EXIT": 

 On or about 14 May 2021, at USPS Canóvanas Post Office; towards the rear 

of the facility at the Loading Area, a designated exit was not marked by an 

exit sign or any other means. 

See Citation as amended. 

a. The Standard Applies and was Violated

As previously addressed, the postal services and related activities Respondent performed 

would fall under the purview of Part 1910. The scope of the general industry Exit Routes and 

Emergency Planning covers Respondent and exits. See 29 C.F.R. § 1910.34. Section

1910.37(b)(2) requires all exits to be “clearly visible and marked by a sign reading ‘Exit’.” The 
18

exit is the “portion of an exit route that is generally separated from other areas to provide a 

protected way of travel to the exit discharge.” 29 C.F.R. § 1910.34(c). 

The Secretary contends that standard 29 C.F.R. § 1910.37(b)(2) is applicable to 

Respondent’s Post Office by the standard’s plain terms and was violated. (Sec’y Br. 10-11). The 

plain language of the standard supports the Secretary’s interpretation that the door in question, 

marked as C on Exhibit J-4A, is an exit door and was required to be marked with a sign reading 

“Exit.” CO Rovira testified that the door is an exit door because “it has a crash bar or a push bar 

area depicted” and leads to the discharge area. (Tr. 51-52). He further testified “the designated 

exit was not marked by an exit sign or by any other means.” (Tr. 48). The record evidence shows 

there was no “Exit” sign anywhere near the exit door at the rear of the facility. (Tr. 48-50; Exs. J2, J-3, J-4A). Photographs taken by CO Rovira of the rear facility door, entered into evidence as 

Exhibits J-2 and J-3, specifically show there was no “Exit” sign on the exit door. (Exs. J-2, J-3). 

Respondent has offered no evidence to rebut the exit door distinction or lack of an “Exit” sign. 

The record shows that the cited standard applies to Respondent and was violated. (Tr. 48-

52; Exs. J-2, J-3, J-4, J-4A). The cited door is part of a continuous path of travel from within the 

facility’s workplace to the exit discharge in the rear of the facility. (Tr. 51-52; Exs. J-2, J-3, J-4, 

J-4A). There is no evidence that there was an “Exit” sign anywhere near the exit door at the rear 

of the facility. (Tr. 48-50; Exs. J-2, J-3). The Court finds 29 C.F.R. § 1910.37(b)(2) applies and 

was violated. 

b. Employees were Exposed to a Hazardous Condition 

 The discussion and rationale addressed in Part IV(A)(1)(c), supra, likewise applies to 

employee exposure to a hazardous condition here and is incorporated herein. Respondent’s 

employees were directly exposed to a hazardous condition when they worked at Respondent’s 
19

facility with access to an exit door without proper signage. (Tr. 33-34, 48-52; Exs. J-2, J-3, J-4, J4A). The record indicates a fire in the front of Respondent’s facility would require employees to 

exit through the rear of the facility, marked as C on the facility map. (Tr. 48-52; Exs. J-2, J-3, J4, J-4A). 

Exiting through the door designated as C on Exhibit J-4A and then through the door 

designated as letter D would be the only means of exiting from the rear of the facility. (Tr. 55-56; 

Ex. J-4A). CO Rovira testified the exit to the right of exit door C “was completely blocked by 

rolling carts, [and] mailing materials.” (Tr. 56). Employees exiting through the rear of the facility 

would have no choice but to use the exit door labeled as C. (Tr. 55-56; Ex. J-4A). Without a 

clearly designated exit sign on the door labeled C, employees would be prevented from 

expeditiously exiting the rear of the facility in the event of a fire or emergency. (Tr. 33-34, 48-52, 

55-56; Exs. J-2, J-3, J-4, J-4A).

As such, this Court finds Respondent’s employees were exposed employees. 

c. Knowledge

The discussion and rationale addressed in Part IV(A)(1)(d), supra, likewise applies to 

knowledge here and is incorporated herein. The Secretary contends that Respondent failed to 

exercise reasonable diligence to discover and to prevent violative conditions and that Respondent 

therefore had knowledge of those conditions. (Sec’y Br. 12). The Secretary argues the lack of an 

exit sign on the exit door at the rear of the facility was in plain view and readily observable on a 

daily basis. (Sec’y Br. 12). 

The record reveals Respondent failed to exercise reasonable diligence to discover the 

violative condition and take steps to protect its employees. (Tr. 33-34, 48-52, 55-56; Exs. J-2, J3, J-4, J-4A). Respondent had no safety and health program at the site to safeguard its personnel. 
20

(Tr. 47, 62). The cited door is part of an exit route from within the facility to the exit discharge at 

the rear of the facility. (Tr. 51-52; Exs. J-2, J-3, J-4, J-4A). Respondent’s evacuation plan, which 

is required to be posted throughout the facility, designates the door labeled C as an exit for 

employees. (Tr. 51-52, 67-70; Exs. J-4, J-4A). Respondent’s employees and supervisors worked 

inside the facility on a daily basis and used this door to access the loading area. (Tr. 34-35, 52-53; 

Exs. J-4, J-4A). The record shows the lack of an exit sign, on the only available exit from the rear 

of the facility, was in plain view and readily observable with reasonable diligence by Respondent. 

(Tr. 48-52, 55-56; Exs. J-2, J-3, J-4, J-4A). 

Constructive knowledge of the violative condition is established. The Secretary has proven 

all elements of his prima facie case. 

IV. Serious Classifications

The Secretary classified the alleged violations in Citation 1, Items 1-2 as serious. A 

violation is classified as serious under the Act if “there is substantial probability that death or 

serious physical harm could result.” 29 U.S.C. § 666(k). The Secretary need not show there was 

a substantial probability an accident would occur, only that if an accident did occur, death or 

serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-

0631, 2010); Wal-Mart Stores, Inc., v. Sec’y of Labor, 406 F.3d 731, 735 (D.C. Cir. 2005); Brock 

v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1388 (D.C. Cir. 1985). 

In determining whether a hazard is “causing or likely to cause death or serious physical 

harm,” the Commission does not look to the likelihood of an accident or injury occurring, but, 

instead, looks to whether, if an accident occurs, the results are likely to cause death or serious 

harm. See Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980); Beverly Enters., 

19 BNA OSHC 1161,1188 (No. 91-3144, 2000) (consolidated); Waldon Health Care Ctr., 16 BNA 
21

OSHC 1052, 1060 (No. 89-3097, 1993). 

The record is clear that hazardous conditions existed at Respondent’s facility which could 

potentially result in serious physical harm or death to Respondent’s employees. Respondent’s 

failure to comply with 29 C.F.R. § 1910.37(a)(3) and 29 C.F.R. § 1910.37(b)(2) on May 14, 2021, 

at its facility in Canóvanas, Puerto Rico exposed employees to hazards and serious physical injury. 

The evidence in this case establishes that there was a probability of death or serious bodily harm 

if a fire or emergency occurred. (Tr. 46, 59-61). CO Rovira testified the obstructed exit route and 

lack of an exit sign on a designated exit door, during a fire, could lead to severe injuries such as 

burns, smoke inhalation, or death. (Tr. 46, 59-61). He testified that the inability to quickly escape 

the facility through fire routes and their respective exits during a fire or emergency, could cause 

serious injuries or death to Respondent’s employees. (Tr. 33-34, 40-43, 46-52, 55-56, 59-61). 

These violations were capable of causing serious injury or death. The Secretary established 

that the hazards from the obstructed exit route and lack of an exit sign on an exit door were likely 

to cause death or serious physical harm in a fire or emergency. Thus, the violations were 

appropriately characterized.

V. Respondent’s Defenses Fail

Respondent pleaded numerous defenses in its Answer.8

 Many of these defenses were not 

raised further at hearing or in its Post-Hearing and Reply Briefs. Respondent elected against

presenting any of its own exhibits or witnesses at the hearing. (Tr. 85). Affirmative defenses not 

raised at the hearing are deemed waived and abandoned by Respondent. Corbesco, Inc. v. Dole,

926 F.2d 422, 429 (5th Cir. 1991) (Affirmative defenses not argued waived); Marmon Grp., 11 

8 Respondent asserted multiple defenses, inter alia, (1) failure to state a claim, (2) compliance technologically and/or 

economically infeasible, (3) means of compliance infeasible, (4) Unpreventable or unforeseeable employee 

misconduct, (5) Respondent’s due process rights were violated, (6) failure to describe with particularity the nature of 

the alleged violations, and (7) compliance functionally impossible. (Answer at 2-4). 
22

BNA OSHC 2090, 2090 n. 1 (No. 79-5363, 1984) (“Commission declines to reach issues on which 

the aggrieved party indicates no interest.”). The Court finds all of these defenses are rejected 

because they either lack merit or have been abandoned, or both. 

VI. Penalty

Under section 17 of the Act, the Secretary has the authority to propose a penalty. See 29 

U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes advisory when an 

employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441– 42 (8th Cir. 1973); 

Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). Ultimately, it is the 

province of the Commission to “assess all civil penalties provided in [Section 17]”, which it 

determines de novo. 29 U.S.C. § 666(j); see also Valdak Corp., 17 BNA OSHC 1135 (No. 93-

0239, 1995). In assessing penalties, the Commission is instructed to give due consideration to the 

size of the employer’s business, the gravity of the violation, the employer’s good faith, and its 

history of previous violations. Compass Envtl., Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 

2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation is generally afforded 

greater weight in assessing an appropriate penalty. Trinity Indus., 15 BNA OSHC 1481, 1483 (No. 

88-2691, 1992). A violation’s gravity is determined by weighing the number of employees 

exposed, the duration of their hazard exposure, preventative measures taken against injury, and the 

possibility that an injury would occur. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 

87-2059, 1993); Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981). 

The Secretary, in assessing the penalties for Items 1 and 2, proposed a gravity-based

penalty of $7,802 for both violations of the cited standards. The Citation proposed a total penalty 

of $15,604. The CO explained OSHA believed the violations’ gravity was moderate because of 
23

the medium severity and lesser probability of serious injury, permanent disability, or death from 

exposure to smoke or fire. (Tr. 46, 59-61). The record supports finding that the gravity of the 

violations warrants a moderate penalty as serious injury and death could occur. (Tr. 33-34, 40-43, 

46-52, 55-56, 59-61). The CO noted that sixteen employees were exposed, throughout the day, to 

the violative conditions on the day of the inspection. (Tr. 33-34). 

The Secretary proposed that the penalties should not be reduced for good faith because 

there was not a safety and health program, or training implemented at the facility. (Tr. 47, 62; 

Sec’y Br. 14-16). No reduction was made for history because Respondent had previous OSHA 

violations within the last three years. (Tr. 47; Sec’y Br. 14-16). No adjustment was made for size 

because Respondent, the U.S. Postal Service, employs over 100,000 people. (Tr. 47; Sec’y Br. 

14-16). 

Upon due consideration of section 17(j) of the Act, with regard given to the penalty 

calculation factors, the undersigned finds a penalty for Serious Citation 1, Item 1 and Serious 

Citation 1, Item 2 of $7,802 is appropriate, resulting in a total combined penalty of $15,604. 

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1910.37(a)(3), is AFFIRMED 

and the Court assesses a penalty in the amount of $7,802; and 

IT IS FURTHER ORDERED that:

2. Citation 1, Item 2, as amended, alleging a Serious violation of 29 C.F.R. § 1910.37(b)(2), 

is AFFIRMED and the Court assesses a penalty in the amount of $7,802. 
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SO ORDERED

 _/s/Covette Rooney________ 

 COVETTE ROONEY

 Chief Judge, OSHRC 

Dated: October 17, 2022 

 Washington, DC