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. 17-0949 

WALMART, INC., 

Respondent. 

ON BRIEFS: 

Juan C. Lopez, Appellate Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Edmund 

Baird, Acting Associate Solicitor of Labor for Occupational Safety and Health; Kate S. 

O’Scannlain, Solicitor of Labor; U.S. Department of Labor, Washington, D.C. 

For the Complainant 

Ronald W. Taylor, Esq., Thomas H. Strong, Esq.; Venable LLP, Baltimore, MD 

For the Respondent 

DECISION 

Before: ATTWOOD, Chairman; LAIHOW, Commissioner. 

BY THE COMMISSION: 

This case is before the Commission on remand from the United States Court of Appeals 

for the Second Circuit. Walsh v. Walmart, Inc., 49 F.4th 821 (2d Cir. 2022). Administrative Law 

Judge Keith E. Bell affirmed a citation issued by the Occupational Safety and Health 

Administration to Walmart, Inc., alleging that pallets of merchandise kept on racks at a Walmart 

distribution center in Johnstown, New York, were “stored in tiers” but not “blocked . . . so that 

they [were] stable and secure against sliding or collapse,” as required by 29 C.F.R. § 1910.176(b). 

The Commission vacated the citation on review, concluding that the cited provision did not apply 

because “stored in tiers,” as used in § 1910.176(b), is limited “to articles stacked one on top of 

another with nothing in between.” Walmart, Inc., No. 17-0949, 2020 WL 10759260, at *3 

(OSHRC, Dec. 31, 2020); see Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1981) (proof of a violation includes showing the cited standard applies), aff’d in relevant part, 681 

F.2d 69 (1st Cir. 1982). 

On appeal, the Second Circuit reversed the Commission’s decision, concluding that the 

“the plain language of [§ 1910.176(b)] appl[ies] to material arranged one above another vertically, 

including on shelves, not just materials stacked directly on top of another.” 49 F.4th at 829. The 

court remanded the case for consideration of whether the Secretary established the remaining 

elements of the alleged violation. Id. at 829-30; see Astra Pharm. Prods., 9 BNA OSHC at 2129 

(Secretary must show, in addition to the applicability of the cited provision, the employer’s failure 

to comply with the provision, employee exposure, and knowledge of the violative condition). 

For the following reasons, we conclude the Secretary has established that Walmart failed 

to comply with § 1910.176(b), that Walmart’s employees were exposed to the violative condition, 

and that the company had knowledge of that condition. Accordingly, we affirm the citation. 

BACKGROUND 

Walmart’s Johnstown distribution center processes between 45,000 and 50,000 pallets of 

merchandise per week to fill orders placed by its stores. Pallets are stored on approximately 30-

foot-high racks, with one pallet per rack level. The racks are positioned back-to-back, such that 

pallets are accessible by forklift only from aisles at the fronts of the racks. At each rack level, a 

48-inch-long and 40-inch-wide pallet rests on the front and back beams of the rack, which are 42 

inches apart. This means that each pallet, when properly placed, overhangs the beams by three 

inches at the front and back. Pallets on back-to-back racks are positioned about four to five inches 

from one another. 

Each rack has seven or eight levels, the lowest of which is the “10 slot” on the distribution 

center floor, with the “20 slot” just above it. These two levels are also known as “pick slots,” from 

which employees retrieve items to fill merchandise orders. The 20-slot has an additional beam 

that runs front-to-back in the center and allows employees to remove empty pallets, each weighing 

more than 60 pounds, without them falling into the space between the front and back beams. The 

upper levels, where pallets of excess merchandise are placed, are known as “T slots” or “reserve 

locations,” and do not have additional front-to-back beams. When pallets in the pick slots run out 

of merchandise, they are removed by hand and replaced, via forklift, with stocked pallets from the 

T slots above. 

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On February 25, 2017, J.S., an order filler at the distribution center, sustained neck and 

spinal injuries when she was struck by falling merchandise while retrieving items from a pick slot. 

A forklift was pulling a stocked pallet from the T slot of a rack immediately behind the rack from 

which J.S. was filling orders when the pallet bumped another stocked pallet stored in a T slot in 

the aisle where J.S. was working. The bumped pallet tipped into the space between the rack’s 

front and back beams, causing some items on the pallet to spill out into the aisle and strike J.S. 

DISCUSSION 

I. Noncompliance 

The Secretary alleges a violation of § 1910.176(b), which provides as follows: 

Secure storage. Storage of material shall not create a hazard. Bags, containers, 

bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in 

height so that they are stable and secure against sliding or collapse. 

The Secretary asserted in his post-hearing brief to the judge that Walmart failed to comply with 

the provision because “there were no bumpers, barriers, or other devices to block a bumped pallet 

from sliding perpendicular to the beams and tipping,” and “the thin beams and large gap between 

the beams [means that] a bumped pallet needed only to slide a matter of inches to slide off of one 

of the beams.” (Emphasis in original.) The judge agreed with the Secretary, finding that “[g]iven 

the dynamic atmosphere of this distribution center where pallets and their contents are constantly 

being placed and pulled from the racks, it is clear to see why these . . . pallets . . . become unstable 

when struck by moving equipment.”1 Walmart contends that this was error because the Secretary 

failed to prove the pallets are not “stable and secure against sliding or collapse,” given that their 

instability occurs only when they are dislodged by a forklift. 29 C.F.R. § 1910.176(b). Walmart 

further argues that the company’s racking system cannot be considered noncompliant with 

§ 1910.176(b) because it is widely used in the warehousing industry. 

To begin, § 1910.176(b) requires stored materials to withstand outside forces. The standard 

defines none of the following terms, but: (1) “secure” means “free from danger” and “affording 

safety”; (2) “slide” means “to change position or become dislocated”; and (3) “collapse” includes 

in its definition to “fall into a jumbled or flattened mass through the force of external pressure.” 

1 The judge found that Walmart’s pallets are 46 inches long and thus stated in his decision that “a 

perfectly placed pallet only has 2 [inches] of overhang on each beam.” The Secretary concedes in 

his brief on review, however, that “all the pallets are forty-eight inches [long] and that the overhang 

on each side is three inches.” 

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WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 

443, 2053, 2142 (1971) (emphasis added). Putting these definitions together, a plain language 

reading of § 1910.176(b) does not limit an employer’s compliance obligation to simply ensuring 

that materials are stored such that they will not give way under their own weight. 

Contrary to Walmart’s claims on review, this reading of § 1910.176(b) is consistent with 

two Commission cases in which violations of the provision were affirmed. In Pratt & Whitney 

Aircraft, 9 BNA OSHC 1653 (No. 13401, 1981), the Commission found noncompliance with 

§ 1910.176(b) where “three pallets of metal barrels” could be toppled by “mechanical handling 

equipment used in the area.” Id. at 1667. The Commission stated that “the Secretary need not 

prove that the barrels could fall off by themselves”; rather, “[p]roof that the barrels were on pallets 

in areas used by mechanical handling equipment [was] sufficient.” Id. at 1668. Three years later 

in Clement Food Co., 11 BNA OSHC 2120 (No. 80-0607, 1984), the Commission stated that 

§ 1910.176(b) “is not limited by its words to stacks so unstable that they might collapse of their 

own weight,” and found noncompliance where three witnesses testified that “a tiered stack of 

boxes fifteen feet high” could be knocked over by “any shock or vibrations from forklift trucks 

and machinery in the area.” Id. at 2122. In each of these cases, the § 1910.176(b) violation was 

unquestionably based on the materials at issue potentially being dislodged by an outside force. 

Thus, Walmart’s attempt to distinguish these cases based on the materials at issue being inherently 

unstable is unfounded.2 

Here, the outside force dislodging materials was not merely potential—the record shows 

that forklifts routinely tipped pallets stored on the distribution center’s racks, causing merchandise 

to fall to the floor from reserve locations as high as 30 feet. J.S. testified that “[r]oughly, during 

2 Walmart also attempts to distinguish two judges’ decisions that affirmed violations of 

§ 1910.176(b) on the ground that both cases involved inherently unstable storage. Unreviewed 

decisions by Commission judges are not binding precedent. See Leone Constr. Co., 3 BNA OSHC 

1979, 1981 (No. 4090, 1976) (“[A] Judge’s opinion . . . lacking full Commission review does not 

constitute precedent binding upon us.”). In any event, one judge simply followed Clement Food 

in finding that “stacked material must be stable and secure even when struck by forklifts.” 

Sanderson Farms, Inc., No. 07-1623, 2008 WL 5203149, at *5 (OSHRCALJ, Aug. 12, 2008), 

aff’d, 348 F. App’x 53 (5th Cir. 2009) (unpublished) (emphasis added). The other followed both 

Clement Food and the Fifth Circuit’s decision in Sanderson Farms in declaring that “[i]t is 

enough . . . [that] the record establishes the stack [of stored materials] was capable of sliding or 

collapsing when struck or disturbed.” Gen. Dynamics Land Sys., Inc., No. 17-0637, 2018 WL 

3046401, at *5 (OSHRCALJ, May 4, 2018) (emphasis added). 

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my [three-day] work week,” items would fall from pallets after being dislodged “three to four 

times during that [time].” The OSHA compliance officer who inspected the distribution center 

testified that a Walmart employee told him that “material falling through the rack . . . was a 

problem and something that needs to be fixed to avoid somebody getting hurt.” According to the 

distribution center’s asset protection manager, “[w]e would have, probably, an incident in the 

racking, we call it a tipped pallet, because frequently it will tip, but not fall, maybe a couple of 

times a month.” Likewise, the distribution center’s general manager testified that items fall from 

pallets dislodged by forklifts “a few times a month.” We find this evidence shows that the way 

Walmart stored its pallets—overhanging the front and back rack beams by only 3 inches, with 

pallets on back-to-back racks only 4 to 5 inches apart—was not “stable and secure against sliding 

and collapse” caused by a known and frequently occurring outside force. 29 C.F.R. § 1910.176(b); 

see also Elliot Constr. Corp., 23 BNA OSHC 2110, 2119 (No. 07-1578, 2012) (noting “the wellestablished principle that the purpose of the [OSH] Act is to prevent the first accident”) (internal 

citations omitted). 

As to Walmart’s assertion that its racking is industry-standard, the company has provided 

no evidence to support this claim beyond a single statement made by its general manager that the 

center’s “selective racking [is] standard in the industry.” In fact, Walmart effectively concedes 

that this bare assertion stands alone in this regard, as the company notes only that the general 

manager’s testimony was uncontradicted at the hearing. Even if Walmart’s racks are industrystandard, “[w]hatever the practice of an industry, . . . members of it are required to take into 

account all available, factual information relating to whether hazardous conditions exist, or 

reasonably could exist, where work is being performed.” Bland Constr. Co., 15 BNA OSHC 1031, 

1036 (No. 87-0992, 1991); see also Baker Tank Co., 17 BNA OSHC 1177, 1179 (No. 90-1786, 

1995) (“[E]vidence as to current industry practice is relevant, but it is not dispositive if industry 

practice is shown to be inadequate.”). As such, the undisputed awareness of two Walmart 

managers that pallets regularly tip and spill merchandise establishes a known hazard, regardless of 

any purported industry-standard practice.

3 See Wiley Organics, Inc., 17 BNA OSHC 1586, 1597 

3 The Secretary contends that industry practice is relevant only when interpreting a performance 

standard, and he correctly notes that § 1910.176(b) is a specification standard. See, e.g., Cleveland 

Wrecking Co., 24 BNA OSHC 1103, 1106 (No. 07-0437, 2013) (“Although [29 C.F.R.] 

§ 1926.501(c) grants the employer the discretion to select a method to protect employees from 

falling objects, it is a specification standard because it requires that the employer choose from a 

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(No. 91-3275, 1996) (“An employer has a general obligation to inform itself of the hazards present 

at the worksite and cannot claim lack of knowledge resulting from its own failure to make use of 

the sources of information reasonably available to it.”), aff’d, 124 F.3d 201 (6th Cir. 1997). 

Therefore, the Secretary has established a failure to comply with § 1910.176(b). 

II. Exposure 

“To establish exposure, the Secretary must show that an employee was actually exposed to 

the cited condition or that access to the cited condition was reasonably predictable.” Calpine 

Corp., 27 BNA OSHC 1014, 1016 (No. 11-1734, 2018), aff’d, 774 F. App’x 879 (5th Cir. 2019) 

(unpublished). The judge found that J.S. “had access to the hazard [of falling merchandise] and 

was within the zone of danger to perform her assigned task at the time of the [incident].” Walmart 

attempts to sidestep this incident, asserting that J.S.’s exposure resulted from her having broken 

the company’s “twenty-foot work rule,” which requires employees to stay at least twenty feet from 

a forklift when its forks are raised. Walmart also argues, somewhat in the alternative, that the 

citation was not based on J.S.’s exposure, but rather on that of employees at the distribution center 

generally, and that the company’s work rule made it such that exposure was not reasonably 

predictable. 

Walmart’s arguments are predicated on a misunderstanding of our exposure jurisprudence. 

As noted, “[e]xposure to a violative condition may be established either by showing actual 

exposure or that access to the hazard was reasonably predictable.” Phoenix Roofing, Inc., 17 BNA 

OSHC 1076, 1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996). Indeed, in Phoenix 

Roofing, reasonable predictability of exposure was merely an alternative rationale to the 

Commission’s finding of actual exposure. See id. (“Actual exposure to the fall hazard involved in 

this case is unquestioned,” but “even if we were to ignore this evidence of actual exposure, . . . the 

evidentiary record still establishes that access to the violative condition was reasonably 

predictable.”). Walmart does not dispute that J.S. was struck by falling merchandise at the 

distribution center, so actual exposure has been established regardless of whether the company’s 

list of specific enumerated methods.”). Industry practice, however, may not be wholly irrelevant 

in terms of compliance with the cited provision’s requirements. While § 1910.176(b) requires 

materials stored in tiers to be “blocked,” it does not specify how such blocking must be 

accomplished, so industry practice could show what type of blocking might suffice. But given the 

record evidence here of regularly falling merchandise, whether Walmart’s racking is industrystandard is immaterial. 

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twenty-foot rule was violated.4 See Am. Luggage Works, Inc., 10 BNA OSHC 1678, 1682 (No. 

77-0893, 1982) (finding actual exposure based on employees’ hands being one inch from point of 

operation and rejecting argument that “employees were not exposed . . . because they were 

instructed in safe operating procedures and were required to remove their hands from the point of 

operation during the operating cycle”); Wayne Farms, LLC, No. 17-1174, 2020 WL 5815506, at 

*3 n.2 (OSHRC, Sept. 22, 2020) (“[T]he injury sustained by Employee #1 here is . . . relevant to 

assessing actual exposure and would likely satisfy that element of the case if we were to reach that 

issue . . . .”). Additionally, where a citation alleges hazards affecting multiple employees, the 

“[e]xposure of only a single employee to a zone of danger has been universally accepted by the 

courts and the Commission to satisfy the element.” Hartford Roofing Co., 17 BNA OSHC 1361, 

1365 (No. 92-3855, 1995). Therefore, we find the Secretary has established that Walmart 

employees were exposed to the violative condition here. 

III. Knowledge 

“Knowledge of the violative condition, either actual or constructive, is an element of the 

Secretary’s burden of proving a violation: the Secretary must prove either that the employer knew 

of the violative condition or that it could have known with the exercise of reasonable diligence.” 

Ragnar Benson, Inc., 18 BNA OSHC 1937, 1939 (No. 97-1676, 1999). “[K]nowledge can be 

imputed to the cited employer through its supervisory employee.” Access Equip. Sys., Inc., 18 

BNA OSHC 1718, 1726 (No. 95-1449, 1999). The judge found that Walmart had actual 

knowledge based on testimony from: (1) J.S. “that she personally informed a couple of managers 

of her concerns regarding items falling”; (2) the distribution center’s general manager “that 

merchandise occasionally falls from the racking when struck by a lift driver,” and that “he received 

reports regarding tipped pallets and [was] aware that it happens at least a few times per month”; 

4 Walmart’s argument in this regard resembles an unpreventable employee misconduct defense, 

but it is not one, nor can it be. Such a “defense is predicated on the notion that an employer should 

not be held responsible when the cited violative condition was caused by an employee’s 

misconduct if that misconduct was not reasonably foreseeable.” Calpine Corp., 27 BNA OSHC 

at 1020 (emphasis added). Here, the violative condition is the company’s failure to block 

merchandise to keep it from falling, not a failure to keep employees away from forklifts. See id. 

(rejecting unpreventable employee misconduct defense because “the violative condition was the 

absence of either railings or an attendant at a temporary floor opening on the platform,” and so 

employer’s “rule requiring employees to use personal fall protection . . . is not equivalent to the 

cited standard”). 

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and (3) the distribution center’s asset protection manager “that material falls off the reserve level 

of the selective racking system when hit by an associate thereby causing a pallet to tip.” In the 

face of this evidence, Walmart’s only response is that “[w]hile the testimony demonstrated that 

[the company] was aware that pallets were partially displaced from racking a few times per month, 

there was no indication that [Walmart] had knowledge that this was a violative condition.” 

Again, this argument is premised on Walmart’s misapprehension of the law. “The 

knowledge element of a violation does not require a showing that the employer was actually aware 

it was in violation of an OSHA standard; rather it is established if the record shows that the 

employer knew . . . of the conditions constituting a violation.” Peterson Bros. Steel Erection Co., 

16 BNA OSHC 1196, 1199 (No. 90-2304, 1993) (emphasis added) (citing ConAgra Flour Milling 

Co., 15 BNA OSHC 1817, 1823 (No. 88-2572, 1992)), aff’d, 26 F.3d 573 (5th Cir. 1994). Here, 

the testimony relied upon by the judge shows that Walmart managers were aware the pallets stored 

on the racks were not blocked and therefore were not “stable and secure against sliding or 

collapse.” 29 C.F.R. § 1910.176(b). Their knowledge is properly imputed to the company. 

For these reasons, we find that the Secretary has established employer knowledge, in 

addition to noncompliance and exposure, and therefore affirm Citation 1, Item 1. 

IV. Abatement Date 

Given our affirmance of the citation, one additional argument raised by Walmart on review 

must be addressed. Walmart contends that the 19-day abatement period set by OSHA in the 

citation is unreasonable because the installation of front-to-back beams in reserve locations on the 

distribution center’s racking—a blocking method suggested by the Secretary—would take up to 

six months given that the beams would need to be custom made. See 29 U.S.C. § 658(a) (“[T]he 

citation shall fix a reasonable time for the abatement of the violation.”). The judge declined to 

address this issue, finding that it was not litigated. This was error. 

The record shows that Walmart disputed the abatement period from the outset, and that the 

issue was in fact litigated. The only abatement requirement in the citation is the date, and 

Walmart’s notice of contest expressly states that the company “hereby contests the citation, the 

proposed penalty, and abatement requirements associated with the citation.” (Emphasis added.) 

See Druth Packaging Co., 8 BNA OSHC 1999, 2003 (No. 77-3266, 1980) (“When an employer 

contests a citation, it may place in issue the reasonableness of the abatement date specified in the 

citation.”). The use of front-to-back beams was first suggested by the Secretary as an abatement 

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method in the parties’ joint pre-hearing statement, where he listed as exhibits three “Photograph[s] 

of Storage Racks Without Crossbar” and one “Photograph of Storage Racks With Crossbar.” Then 

at the hearing, the Secretary’s counsel asked the compliance officer about “perpendicular cross 

beams” and their effectiveness in keeping pallets from falling. 

In response, Walmart’s counsel specifically questioned the distribution center’s general 

manager about how long it would take for Walmart to install such front-to-back “cross bracing,” 

and the general manager responded that it would take six months, given that the company would 

have to “cut a purchase order for the cross bracing” and it would have to be fabricated and custominstalled because it is “not a stock part for this selective racking.” Walmart relied on this testimony 

in its post-hearing brief, arguing that “the abatement period should be set at six months.” 

When an employer contests the abatement date, “the burden of proving [the date’s] 

reasonableness lies with the Secretary.” Id. The Secretary, however, presented no evidence that 

front-to-back beams could be installed in 19 days—indeed, the general manager’s testimony that 

such beams would take six months to install is unrebutted. On review, the Secretary asserts that 

Walmart can achieve compliance with § 1910.176(b) by simply rearranging back-to-back racks so 

that there is more space between adjacently-stored pallets, but the Secretary did not proffer this 

option before or at the hearing, so Walmart had no opportunity to contest this proposed method.5 

And the Secretary’s argument appears somewhat disingenuous, given that his post-hearing brief 

to the judge specifically stated that “one straightforward method of abating these hazardous storage 

conditions would be to put an interior cross-beam (cross-brace) in the storage racks underneath 

each pallet,” and did not mention additional separation of the racks. Under these circumstances, 

we agree with Walmart that the time for abatement should be extended to six months from the date 

of the final order in this case. See 29 U.S.C. § 659(b) (“[T]he period permitted for . . . correction 

[of the violation] . . . shall not begin to run until the entry of a final order by the Commission . . . .”). 

5 We also question whether rearranging racks would achieve compliance with the cited provision, 

which requires stored materials to “be stacked, blocked, interlocked and limited in height.” 29 

C.F.R. § 1910.176(b). 

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ORDER 

In light of the foregoing, we affirm Citation 1, Item 1, extend the time for abatement to six 

months, and—because Walmart does not contest penalty—assess the proposed penalty of $10,864. 

See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (assessing 

proposed penalty where not in dispute). 

SO ORDERED. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Dated: February 8, 2023 Commissioner 

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