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. 

U.S. POSTAL SERVICE,

Respondent. 

OSHRC Docket No. 18-0188 

APPEARANCES:

Jennifer L. Gold, Attorney; Louise McGauley Betts, Senior Attorney; Oscar L. Hampton, III, 

Regional Solicitor; Kate S. O’Scannlain, Solicitor of Labor; U.S. Department of Labor, 

Philadelphia, PA and Washington, D.C.

For the Complainant

Miriam Dole, Attorney; U.S Postal Service, Eastern Area Law Office, Philadelphia, PA

For the Respondent

REMAND ORDER

Before: SULLIVAN, Chairman; and ATTWOOD, Commissioner.*

BY THE COMMISSION:

The Occupational Safety and Health Administration issued U.S. Postal Service a one-item 

citation alleging an other-than-serious violation of 29 C.F.R. § 1904.135(b)(1)(iv), a 

recordkeeping regulation that prohibits employers from “discharg[ing] or in any manner 

discriminat[ing] against any employee for reporting a work-related injury or illness.” The citation

alleges that USPS retaliated against two mail carriers in its Mount Oliver Branch in Pittsburgh, 

Pennsylvania, by issuing “a seven-day working suspension” to each of them after each one 

reported a work-related injury. Following a hearing, Administrative Law Judge Keith E. Bell 

vacated the citation, concluding that the Secretary failed to establish that USPS’s proffered reasons 

* Commissioner Laihow has recused herself from participation in this case. 
2 

for disciplining the mail carriers were pretextual.1 For the following reasons, we set aside the 

judge’s decision and remand this case for further proceedings consistent with this opinion. 

The citation sets forth two instances of violation based on each reported injury. The first 

involves a mail carrier who injured his shoulder while lifting a sack of mail to load it onto a mail 

truck. He reported his injury to his immediate supervisor, who then sent the mail carrier to the 

Mount Oliver Branch’s acting manager. After meeting with the mail carrier, the acting manager 

recommended that he be disciplined, and the discipline was later imposed.2

 The Secretary argues 

that USPS disciplined the mail carrier for merely reporting an injury, whereas USPS maintains 

that its disciplinary action was justified given the acting manager’s claim that the mail carrier 

demonstrated an improper lifting technique when reenacting how he injured his shoulder. 

There is conflicting testimony, however, on whether the mail carrier actually reenacted 

how he lifted the mail sack. Both the acting manager and the mail carrier testified that they

discussed the injury soon after it occurred. But the acting manager also testified that the mail 

carrier “came into my office and demonstrated to me how he injured his shoulder.” In response to 

further questioning on this issue, the acting manager explained that he asked the mail carrier to 

demonstrate how he had lifted the mail sack, and that the acting manager could “tell right from 

[the mail carrier’s demonstration] that he did not use his knees to lift.” In contrast, the mail carrier 

testified that he was in the acting manager’s office for “[p]robably five minutes,” and he confirmed 

that he did not reenact his lifting method for the acting manager and that the acting manager said 

nothing to him about “unsafe acts.” 

Resolving this conflict is central to the alleged instance of violation—if no reenactment 

took place and, therefore, an improper lifting technique was never demonstrated by the mail 

carrier, then USPS’s purported justification for imposing discipline is unsupported. The judge, 

1 In assessing whether the Secretary established USPS’s failure to comply with 

§ 1904.35(b)(1)(iv), the judge applied the burden-shifting framework articulated by the Supreme 

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which involved a 

discrimination claim under Title VII of the Civil Rights Act of 1964. See, e.g., Acosta v. Lloyd

Indus., Inc., 291 F. Supp. 3d 647, 653 (E.D. Pa. 2017) (noting that three-step burden-shifting test 

requires plaintiff to “make a prima facie case of retaliation,” defendant to identify “an appropriate 

non-discriminatory reason for its action,” and plaintiff to prove that “proffered reason is 

pretextual”). 

2 We note that the acting manager also recommended disciplinary action for the other mail carrier 

at issue in the citation and that action was imposed as well. Although it is not relevant to this 

remand order, both disciplinary actions were later rescinded.
3 

however, made no credibility determinations—demeanor-based or otherwise—to explain why he 

appears to have discounted the mail carrier’s testimony in favor of the acting manager’s 

testimony.

3 See American Wrecking Corp., 19 BNA OSHC 1703, 1714-15 (No. 96-1330, 2001) 

(consolidated) (remanding for “credibility determinations based on the demeanor of the witnesses 

on the stand”; noting that “the judge is the one who has ‘lived with the case, heard the witnesses, 

and observed their demeanor’ ” (citation omitted)); Agra Erectors, Inc., 19 BNA OSHC 1063, 

1066 (No. 98-0866, 2000) (remanding case to judge to make credibility determinations regarding 

conflicting testimony because judge who heard case is best qualified to make such findings). 

Given the conflicting testimony on this key issue, the judge on remand “must give reasons for 

crediting the testimony of one witness over that of another that are ‘accompanied by summaries of 

pertinent testimony and reasons for crediting the testimony.’ ” Agra Erectors, Inc., 19 BNA OSHC 

at 1066 (citation omitted). 

Such credibility determinations are also pertinent to the second alleged instance, which 

concerns a mail carrier who suffered a dog bite injury while delivering mail. The same acting 

manager investigated that incident and, as noted, recommended that disciplinary action be taken 

against the mail carrier. As such, the judge should also evaluate to what extent, if any, his 

assessment of the witnesses’ credibility affects his findings with regard to that instance. Finally, 

although we have identified only a single example of conflicting testimony, the judge should also 

reevaluate the entire record to ascertain whether there is any other conflicting testimony that should 

be resolved through credibility determinations, or whether there are other circumstances that may 

bear on the witnesses’ credibility. See Lake County Sewer Co., 22 BNA OSHC 1522, 1524 (No. 

3 Addressing the Secretary’s argument that “[t]here is no evidence to support that [the mail carrier]

lifted improperly, and no witnesses to either his lifting or his alleged reenactment,” the judge noted 

that the USPS labor relations specialist who drafted the mail carrier’s disciplinary letter 

“corroborated [the acting manager’s] testimony” that the mail carrier reenacted an improper lifting 

technique. The labor relations specialist testified that he communicated with only the acting 

manager—and not the mail carrier—before drafting the letter, and that the acting manager told 

him about the purported reenactment and asserted that the mail carrier had demonstrated this 

improper technique. Although the labor relations specialist testified that he had received other 

documentation concerning the incident, including the results of a pre-disciplinary investigation, he 

admitted that absent his conversation with the acting manager, he may have opted not to pursue 

discipline. In short, the labor relations specialist did not observe the purported reenactment; his 

testimony was based solely on what the acting manager told him about it. Thus, while the labor 

relations specialist’s testimony shows that the acting manager consistently claimed there was a 

reenactment, it does not by itself explain why the judge apparently found the acting manager’s 

version of events more credible than the contrary version testified to by the mail carrier. 
4 

07-1786, 2009) (remanding case to judge to “address all conflicting testimony, as well as any other 

record evidence relevant to [disputed] issue, making credibility findings where necessary”). 

Accordingly, we set aside the judge’s decision and remand for the judge to make credibility 

determinations concerning evidence that is relevant to whether USPS retaliated against its two 

mail carriers for reporting work-related injuries, including the conflicting testimony specified 

above, and to reconsider in light of these determinations whether the Secretary established a 

violation of § 1904.135(b)(1)(iv).4

SO ORDERED.

/s/ 

James J. Sullivan, Jr.

Chairman 

/s/ 

Cynthia L. Attwood

Dated: July 28, 2020 Commissioner

4 In his decision, the judge questions the citation’s failure to specify a means of abatement. 

Specifically, the judge cites OSHA’s interim enforcement procedures for the new recordkeeping 

regulation, which were in place at the time the citation was issued and required as follows: “The 

citation must include remedies for the aggrieved employee, such as back wages, removal of 

disciplinary action, reinstatement of lost time and wages, etc., where appropriate” as well as “the 

means for abatement of the underlying policy or procedure that is related to the merit 

determination.” Memorandum from Directorate of Enforcement Programs to Regional 

Administrators, Interim Enforcement Procedures for New Recordkeeping Requirements under 29 

CFR 1904.35 (Nov. 10, 2016). To the extent the judge relied on this rationale as a basis for 

vacating the citation, he erred. There is no requirement under the Occupational Safety and Health 

Act, OSHA’s recordkeeping regulations, or Commission precedent that compels the Secretary to 

specify a means of abatement in a citation alleged under 29 C.F.R. § 1904.35(b)(1)(iv). See 29 

U.S.C. § 658(a) (citation “shall be in writing and shall describe with particularity the nature of the 

violation, including a reference to the . . . regulation . . . alleged to have been violated” and “shall 

fix a reasonable time for the abatement of the violation”). Moreover, the Commission has long 

held that while OSHA’s internal manuals may “provide[] guidance to OSHA professionals,” they 

“[do] not have the force and effect of law, nor [do they] confer important procedural or substantive 

rights or duties on individuals.” Caterpillar Inc., 15 BNA OSHC 2153, 2173 n.24 (No. 87-0922, 

1993). The judge shall take this ruling into account in reaching his decision on remand. 
5 

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. 18-0188 

U.S. POSTAL SERVICE, 

 Respondent. 

Appearances: Kate S. O’Scannlain, Solicitor of Labor

 Oscar L. Hampton, III, Regional Solicitor

 Jennifer L. Gold, Attorney

 U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania 

 For the Complainant 

 

 Miriam Dole, Attorney

 U.S. Postal Service, Eastern Area Law Office, Philadelphia, Pennsylvania 

 For the Respondent 

Before: Keith E. Bell

 Administrative Law Judge 

DECISION AND ORDER

This case concerns a claim of alleged discrimination for reporting work-related injuries. It

is brought under a new anti-discrimination regulation recently promulgated and published on May 

12, 2016, under authority from the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-

678 (OSH Act). Around May and June 2017, two postal workers for the Mt. Oliver branch of the 
6 

United States Postal Service (USPS or Respondent) in Pittsburgh, Pennsylvania reported their 

work-related injuries to their management. After an internal pre-disciplinary investigation, the 

USPS suspended them with pay for alleged violations of USPS safety rules. Shortly thereafter, a 

union steward filed whistleblower complaints on their behalf with the Occupational Safety and 

Health Administration (OSHA), which commenced two separate, parallel investigations: (1) 

pursuant to § 11(c) of the OSH Act5, and (2) pursuant to the recently promulgated antidiscrimination regulation under part 1904 (“Recording and Reporting Occupational Injuries and 

Illnesses”) subpart D (“Other OSHA Injury and Illness Recordkeeping Requirements”) at 29 

C.F.R. § 1904.35(b)(1)(iv).6 

A few weeks after the whistleblower complaint was filed, the USPS rescinded both 

disciplinary suspensions and expunged the discipline from the records of both injured postal 

workers. (Exs. JX-7 at 1, JX-14 at 1.) Less than two weeks later, OSHA closed out the § 11(c) 

5 Section 11(c) of the OSH Act states in pertinent part:

(1) No person shall discharge or in any manner discriminate against any employee 

because such employee has filed any complaint or instituted or caused to be 

instituted any proceeding under or related to this Act or has testified or is about to 

testify in any such proceeding or because of the exercise by such employee on 

behalf of himself or others of any right afforded by this Act.

(2) Any employee who believes that he has been discharged or otherwise discriminated 

against by any person in violation of this subsection may, within thirty days after 

such violation occurs, file a complaint with the Secretary alleging such 

discrimination. Upon receipt of such complaint, the Secretary shall cause such 

investigation to be made as he deems appropriate. If upon such investigation, the 

Secretary determines that the provisions of this subsection have been violated, he 

shall bring an action in any appropriate United States district court against such 

person[.] 

29 U.S.C. § 660(c). 

 

6 Published on May 12, 2016, § 1904.35(b)(1)(iv) states: “You must not discharge or in any 

manner discriminate against any employee for reporting a work-related injury or illness.” 29 

C.F.R. § 1904.35(b)(1)(iv).
7 

investigation. However, the other investigation, under § 1904.35(b)(1)(iv), continued. On 

November 28, 2017, OSHA issued a Citation to USPS alleging an other-than-serious violation of 

§ 1904.35(b)(1)(iv) and proposing a $5,432 penalty. The Citation required the USPS to abate the 

alleged violation by December 8, 2017. Nothing in the Citation specified how the USPS was to 

achieve abatement. 

Respondent received the Citation on November 30, 2017 and filed a late notice of contest

(LNOC) on February 2, 2018, bringing this matter before the Occupational Safety and Health 

Review Commission (Commission). A hearing was held in Pittsburgh, Pennsylvania on December 

11 and 12, 2018. Both parties filed post-hearing briefs on March 21, 2019. On February 25, 2020, 

the undersigned issued an Order Directing the Parties to File Supplemental Briefs by March 13, 

2020 to address the sole issue of Respondent’s LNOC. The Secretary filed his supplemental brief 

on March 5, 2020, Respondent filed its supplemental brief on March 13, 2020. As discussed 

below, the Citation and proposed penalty are VACATED. 

PART I: LATE NOTICE OF CONTEST

JURISDICTION AND COVERAGE

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by 

an employer if the employer is engaged in business affecting commerce within the meaning of 

section 3(5) of the OSH Act, and, if the employer timely contests the citation. 29 U.S.C. §§ 652(5), 

659(c). The record establishes that Respondent, as of the date of the alleged violation, was an 

employer engaged in business affecting commerce within the meaning of section 3(5) of the OSH 

Act. 29 U.S.C. § 652(5). See Amended Complaint & Answer at ¶¶ 4. 

The record also reveals that Respondent filed an untimely notice of contest (NOC). The 

OSH Act allows 15 working days “from the receipt” of the citation by the employer for the 
8 

employer to notify the Secretary of its intent to contest the citation. 29 U.S.C. § 659(a). At that 

point, if an employer fails to file a timely NOC, “the citation and the assessment, as proposed, shall 

be deemed a final order of the Commission and not subject to review by any court or agency.” 29 

U.S.C. § 659(a). 

The Citation for this matter was issued on November 28, 2017, sent by certified mail, and 

signed as received by “Daniel Sowchah” at the USPS at 140 Brownsville Road, Pittsburgh, PA 

15210. See Citation Certified Receipt. Next chronologically in the record is a “Notice of Contest” 

addressed to OSHA Area Director Christopher Robinson that is dated February 2, 2018. In this 

NOC, Respondent states that “[t]he documents were not received by the Safety and Law 

Departments until February 2, 2018.” The next filing in the record is the Secretary’s Complaint, 

in which the Secretary states the following in pertinent part: 

1. On November 28, 2017, OSHA issued to Respondent a Citation and 

Notification of Penalty. The Citation and Notification of Penalty is attached 

hereto as Exhibit A and is incorporated by reference. 

2. On February 2, 2018, Respondent notified the Secretary that he wishes to 

contest the Citation and Notification of Penalty. Respondent’s notice of contest 

is attached hereto as Exhibit B.

3. The Occupational Safety and Health Review Commission has jurisdiction over 

this contest pursuant to Section 10(c) of the OSH Act, 29 U.S.C. § 659(c). 

(Complaint and Amended Complaint at ¶¶ 1-3.) 

In response, Respondent filed in its Answer the following: 

1. It is admitted only that Complainant issued a citation, the remaining averments 

are denied. Respondent specifically denies the validity of the citation, the 

proposed penalty, and the date it was issued to Respondent. 

2. Admitted.

3. Respondent admits jurisdiction pursuant to Section 10(c) of the Act. 
9 

(Answer at ¶¶ 1-3.) Respondent also raised as an affirmative defense, “[t]he Citation and 

Notification of Penalty was not properly served on Respondent.” (Answer at 4.) 

The record is silent regarding this NOC until February 25, 2020, when the undersigned 

issued an Order Directing the Parties to File Supplemental Briefs to address the sole issue of 

Respondent’s Late NOC. See Taj Mahal Contracting, 20 BNA OSHC 2020, 2023 (No. 03-1088, 

2004) (“[A] court may sua sponte raise the issue of lack of jurisdiction (and indeed is under an 

independent obligation to do so) when the matter comes to the attention of the court during the 

course of proceedings”); Stone Container Corp., 9 BNA OSHC, 1832, 1833 (No. 15116, 1981) 

(“As a jurisdictional question, the issue of the timeliness of a notice of contest can be raised by a 

party or by the Commission, sua sponte, at any time during the proceedings”) citing Fed. R. Civ. 

P. 12(h)(3)(“Whenever it appears by suggestion of the parties or otherwise that the court lacks 

jurisdiction of the subject matter, the court shall dismiss the action.”). Based on the date the 

Citation package was received by the Respondent, Respondent’s NOC should have been filed by 

December 21, 2017. Respondent’s NOC was not filed under February 2, 2018, approximately 6 

weeks late.

The Secretary filed a brief on this issue on March 5, 2020, and Respondent filed a brief on 

March 13, 2020. Both parties agree that Respondent’s NOC was untimely. (Sec’y Supp. Br. at 2; 

Resp’t Supp. Br. at 6.) Accordingly, the Citation, as issued, is deemed a final order of the 

Commission by operation of law. 29 U.S.C. § 659(a). 

Relief from a final order of the Commission may be granted under Federal Rule of Civil 

Procedure 60(b).7 Nw Conduit Corp., 18 BNA OSHC 1948, 1949 (No. 97-851, 1999); see also

7 Fed. R. Civ. P. 60(b) provides in relevant part: “On motion and just terms, the court may relieve 

a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise, or excusable neglect[..., or] (6) any other reason that justifies relief. ” Fed. 

R. Civ. P. 60(b)(1), (6). 
10 

George Harms Constr. Co., Inc., v. Chao, 371 F.3d 156 (3d Cir. 2004); J.I. Hass Co., Inc. v. 

OSHRC, 648 F.2d 190 (3d Cir. 1981) (holding that the Commission has residual authority over 

uncontested citations such that it may, in the exercise of its authority, grant relief under Rule 

60(b)). The Secretary argues that Respondent’s LNOC “was the functional equivalent of a petition 

for relief under Rule 60(b).” (Sec’y Br. at 2.) In its LNOC, Respondent claimed that “[t]he 

documents were not received by the Safety and Law Departments until February 2, 2018.” The 

Commission has construed informal statements such as these in LNOCs as motions for Rule 60(b) 

relief (though typically in pro se cases). See, e.g., Secretary of Labor v. Kaposy, 607 F. Appx. 230 

(3d Cir. 2015) (unpublished) (Commission treating Respondent’s letter as petition for relief from 

judgment under Fed. R. Civ. P. 60(b)). 

In its supplemental brief, Respondent requests relief due to “extraordinary circumstances” 

and “excusable neglect.” (Resp’t Br. at 6-7 citing Commission Rule 33 note 1 “Under 

extraordinary circumstances, the cited employer, an affected employee, or an authorized employee 

representative may seek relief from the final order pursuant to Federal Rule of Civil Procedure 

60[.]”). Excusable neglect falls under Fed. R. Civ. P. 60b)(1) and “extraordinary circumstances” 

have typically fallen under Fed. R. Civ. P. 60(b)(6). Pioneer Invest. Servs. Co. v. Brunswick 

Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) (Pioneer); Branciforte Builders, Inc., 9 BNA OSHC 

2113, 2116-2117 (No. 80-1920, 1981). 

A late filing may be excused under Fed. R. Civ. P. 60(b)(1) if the final order was entered 

because of “mistake, inadvertence, surprise or excusable neglect.” 

The moving party bears the burden of showing that it is entitled to such relief. Rule

60(b) provides that the judge may grant relief for reasons including “mistake, 

inadvertence, surprise, or excusable neglect.” In determining excusable neglect, 

the Commission takes into account “all relevant circumstances surrounding the 

party's omission,” including: “the danger of prejudice to the [opposing party], the 

length of the delay and its potential impact on judicial proceedings, the reason for 
11 

the delay, including whether it was within the reasonable control of the movant, 

and whether the movant acted in good faith.” 

Elan Lawn & Landscape Serv., Inc., 22 BNA OSHC 1337, 1339 (No. 08-0700, 2008) (citations 

omitted). 

A late filing may also be excused under Fed. R. Civ. P. 60(b)(6), for any other reason that 

justifies relief, such as when “absence, illness, or a similar disability prevent[s] a party from acting 

to protect its interests.” Branciforte Builders, Inc., 9 BNA OSHC at 2116-2117. A party seeking 

relief under Rule 60(b)(6) “must show ‘extraordinary circumstances’ suggesting that the party is 

faultless in the delay.” Pioneer, 507 U.S. at 393. Where a party is partly to blame for the delayed 

filing, relief from the final order must be sought under Fed. R. Civ. P. 60(b)(1) and the party’s 

neglect must be excusable. Id. The Third Circuit has emphasized that the Pioneer equitable 

analysis requires consideration of “all relevant circumstances” surrounding a party’s request for 

relief due to excusable neglect. Avon Contractors, Inc. v. Sec’y of Labor, 372 F.3d 171, 174 (3d 

Cir. 2004. Therefore, the “control” factor must not be weighted too heavily at the expense of the 

other relevant Pioneer factors. Id; see also Coleman Hammons Constr. Co. v. OSHRC, 942 F.3d 

279, 283 (5th Cir. 2019) (same); George Harms Constr., 371 F.3d at 164 (same). 

In the Third Circuit, where this case may be appealed, a decision to exercise discretion 

under Fed. R, Civ. P. 60(b)(6) is “ ‘ available only in cases evidencing extraordinary 

circumstances.’ ” Lasky v. Cont'l Prods. Corp., 804 F.2d 250, 256 (3d Cir.1986) (quoting Stradley 

v. Cortez, 518 F.2d 488, 493 (3d Cir.1975)); Fed. R. Civ. P. 60(b)(6). Equitable factors guiding 

the decision to grant relief include: 

[1] the general desirability that a final judgment should not be lightly disturbed; 

 

[2] the procedure provided by Rule 60(b) is not a substitute for an appeal; 

[3] the Rule should be liberally construed for the purpose of doing substantial 

justice; 
12 

[4] whether, although the motion is made within the maximum time, if any, 

provided by the Rule, the motion is made within a reasonable time; ... 

[5] whether there are any intervening equities which make it inequitable to grant 

relief; 

[6] any other factor that is relevant to the justice of the [order] under attack.

Kaposy, 607 F. App'x at 231 citing Lasky, 804 F.2d at 256 (citations omitted); see also Coltec 

Indus., Inc. v. Hobgood, 280 F.3d 262, 274–75 (3d Cir.2002) (holding that the movant's particular 

situation in the context of a Rule 60(b)(6) motion is vitally important). “The fundamental point of 

60(b) is that it provides ‘a grand reservoir of equitable power to do justice in a particular 

case.’ ” Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014). 

Here, Respondent explains “that Daniel Sawchak was a craft employee, who was on his 

4th day of a temporary detail as a 204b supervisor. He was asked but did not recall signing for the 

letter or what he might have done with it.” (Resp’t Supp. Br. at 6.) Respondent then claims that 

[o]nce Postal management became aware of the Citation, it acted promptly in 

response, filing its NOC the very same day it received a copy of the Citation from 

the Area Director. The Commission did not, at any time, object to the Late Notice 

of Contest, and has not been prejudiced by the late Notice of Contest. 

(Resp’t Supp. Br. at 9.) Even though Respondent’s employee mishandled the certified mailing of 

the Citation, the Commission typically holds parties responsible for their mail-handling procedures

and Respondent has provided little to no support explaining why it should be excused for Mr. 

Sawchak’s mishandling of the Citation. La.-Pac. Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 

1989) (Commission expects employers to maintain orderly procedures for handling important 

documents). The record also reveals that Respondent management knew about previous instances 

of late filings in OSHA matters from “the WPA safety office” and about its OSHA history that “is 

not acted on timely and an extension date or two are requested.” (Ex. JX-15 at 7-8.) As 

Respondent has not explained why it should not be held responsible for Mr. Sawchak’s 

mishandling of the Citation, and Respondent’s management was aware of previous instances of 
13 

untimeliness from that branch, the undersigned is unable to find that Respondent’s neglect in this 

instance was excusable under Fed. R. Civ. P. 60(b)(1). 

On the other hand, the Secretary claims that, at the time of Respondent’s late filing, the 

Secretary did not oppose it and instead filed his Complaint. The Secretary further claims that, 

“given that the parties’ pleadings were processed in the normal course, and this case has been tried 

on the merits and briefed, we see no reason to oppose that petition now.” (Sec’y Supp. Br. at 2.) 

The Commission has previously held, however, that “where an untimely NOC is docketed, under 

Commission practice it is incumbent upon the Secretary to file a motion to dismiss the NOC as 

untimely[.]” Taj Mahal Contracting, 20 BNA OSHC at 2022. Here, instead of filing the motion 

to dismiss, the Secretary filed the Complaint, averring that the Commission had jurisdiction for 

this matter under section 10(c) of the OSH Act, because the Secretary “did not oppose” 

Respondent’s LNOC. (Sec’y Supp. Br. at 2.) The undersigned finds that, based on the Secretary’s 

supplemental brief, the Secretary knew that Respondent’s filing was late, that the matter had been 

deemed a final order, and yet, the Secretary did not specifically raise this issue to the undersigned’s 

attention in the Complaint. 

As each party notes, however, this case has proceeded despite the LNOC for over two 

years, wherein the hearing was held and then the merits were fully briefed. The undersigned is 

also mindful that Fed. R. Civ. P. 60(b) caselaw cautions that no one equitable factor should be 

weighed too heavily, and that the aim is “to do justice in a particular case.” Cox, 757 F.3d at 122. 

The undersigned finds that all share blame in cultivating this issue. No entity would be prejudiced 

if this matter were to proceed after relief from the final judgment. Indeed, substantial justice would 

be furthered if the merits were reached as all spent significant time preparing for, participating in, 

and briefing the merits after, the hearing that was held in this matter. 
14 

Accordingly, the undersigned finds that this case barely passes muster for Fed. R. Civ. P. 

60(b)(6) relief. It is particularly noted that the Secretary abdicated his responsibility to file a 

motion to dismiss as is the practice before this Commission. Taj Mahal Contracting, 20 BNA 

OSHC at 2022. However, the weight of the equitable factors for this case is in favor of reaching 

the merits of this case. Relief is granted from the final order under Fed. R. Civ. P. 60(b)(6) as the 

events in this matter constitute “extraordinary circumstances.” 

PART II: MERITS

For the following reasons, the Citation is this matter is VACATED. 

STIPULATIONS

The parties stipulated to the following facts: 

1. At the time of the issuance of the discipline, [Postal Worker 1 (“PW1”)]8 was an 

employee of USPS, and had been for approximately 20 years (start date on or about June 

21, 1997). 

2. At the time of the issuance of the discipline, [Postal Worker 2 (“PW2”)] was an employee 

of USPS, and had been for just over one year (start date on or about April 16, 2016). 

3. At all times relevant to this case, Clifford Mayfield was an employee of the Respondent 

and a member of management. 

4. At all times relevant to this case, Mayfield was eligible for Respondent’s pay-forperformance compensation and incentive program. 

5. At all times relevant to this case, Robin Derry, Supervisor, Customer Services, Mount 

Oliver Branch of the Pittsburgh Post Office of USPS, was an employee of the 

Respondent and a member of management.9

6. At all times relevant to this case, Derry was eligible for Respondent’s pay-forperformance compensation and incentive program. 

8 For personal privacy reasons, the names of the injured employees have been redacted in this 

Decision and Order.

9 At all times relevant to this case, this was Derry’s position. Derry is currently on extended 

military leave, was thus unavailable for depositions, and is thus also unavailable for trial. 
15 

7. At all times relevant to this case, Harry Wolfe was an employee of the Respondent and a 

member of management. 

8. At all times relevant to this case, Wolfe was eligible for Respondent’s pay-forperformance compensation and incentive program. 

9. At all times relevant to this case, Gerst-Stewart was an employee of the Respondent and a 

member of management. 

10. At all times relevant to this case, Gerst-Stewart was eligible for Respondent’s pay-forperformance compensation and incentive program. 

11. At all times relevant to this case, Kammermeier was an employee of the Respondent and 

a member of management. 

12. At all times relevant to this case, Kammermeier was eligible for Respondent’s pay-forperformance compensation and incentive program. 

13. On May 15, 2017, [PW1] was injured during the performance of his duties on the job. 

14. [PW1] was injured while moving a mail sack onto a truck. 

15. On May 15, 2017, [PW1] reported his injury to USPS management. 

16. [PW1] received medical treatment for his injuries. 

17. On May 15, 2017, Wolfe conducted an investigation into the facts of [PW1’s] injury. 

18. On/about May 15, 2017, Wolfe ordered [PW1] to be drug tested. 

19. On/about May 17, 2017, Wolfe was informed that [PW1’s] drug test results were 

negative. 

20. On May 22, 2017, Mayfield conducted a Pre-Disciplinary Interview with [PW1], with 

union steward David Bugay in attendance. 

21. On May 31, 2017, Respondent disciplined [PW1], issuing him a seven day, no-time-off 

suspension. 

22. The grievance brought by [PW1] concerning his May 31, 2017 discipline was settled by 

Acting Manager Louis Kammermeier on August 18, 2017, fully rescinding and 

expunging the discipline from the affected employee’s file, stating “[e]vidence does not 

support issued discipline.” 

23. On June 1, 2017, [PW2] was injured during the performance of her duties on the job. 
16 

24. [PW2] was injured when she was bitten by a dog. 

25. The dog that bit [PW2] was in the yard at 510 Augusta Street. 

26. [PW2] was bitten by the dog while attempting to deliver mail to 514 Augusta Street. 

27. On June 1, 2017, [PW2] reported her injury to USPS management. 

28. [PW2] received medical treatment for her injuries. 

29. On June 1, 2017, Wolfe conducted an investigation into the facts of [PW2’s] injury. 

30. On June 2, 2017, Mayfield conducted a Pre-Disciplinary Interview with [PW2], with 

union steward David Bugay in attendance. 

31. On June 2, 2017, Respondent disciplined [PW2], issuing her a seven-day, no-time-off 

suspension. 

32. The grievance brought by [PW2] concerning her June 2, 2017 discipline was settled by 

Acting Manager Louis Kammermeier on August 18, 2017, fully rescinding and 

expunging the discipline from the affected employee’s file, stating “[e]vidence does not 

support issued discipline.” 

33. Memorandum from USPS’ Nancy L. Rettinhouse, Vice-President Employee Resource 

Management to all USPS Area Vice Presidents re: OSHA Rule Change – November 1, 

2016, dated October 6, 2016 is an authentic copy of a memorandum and business record 

of the Respondent. 

34. Regarding its intended trial exhibits, Respondent did not produce in discovery, in 

response to the Secretary’s discovery requests, the following exhibits as listed by 

Respondent in the Joint Prehearing Statement: RX-3, RX-9, RX-10, RX-11, RX-13, RX14, RX-15, RX-16, and RX-19. 

35. Specifically, for its intended exhibits RX-17 and RX-18, as listed by Respondent in the 

Joint Prehearing Statement, in its discovery responses, Respondent produced a link to a 

web site, as in pertinent part below: 

a. In response to Secretary’s Interrogatory No. 1: “Employee and Labor Relations 

Manual (“ELM”), Section 814.2, 

http://about.usps.com/manuals/elm/elmarch.htm” 

b. In response to Secretary’s Interrogatory No. 12: “Employee and Labor Relations 

Manual, in general at: http://about.usps.com/manuals/elm/elmarch.htm and 

specifically, ELM Section 814.2” 

36. The following OSHA memorandums and guidance are publicly available on OSHA’s 

web site, and neither party objects to the admission of these exhibits as additional Joint 

Exhibits: 
17 

a. JX-16 2016 11-10 Interim Enforcement Procedures for New Recordkeeping 

Requirements Under 29 CFR 1904.35 

b. JX-17 Implementation of the 2017 annual adjustment pursuant to the Federal 

Civil Penalties Inflation Adjustment Act Improvement Act of 2015 

c. JX-18 2016 10-19 Interpretation of 1904.35(b)(1)(i) and (iv) 

d. JX-19 2018 10-11 Clarification of OSHA's Position on 1904 

37. The Secretary confirms, and Respondent does not object, that the 11(c) portion of OSHA’s 

investigation into the employee complaints of discrimination and retaliation at issue in 

OSHRC Docket No. 18-0188 ended on or about September 1, 201[7]10, and that OSHA 

has closed both 11(c) claims. Both parties acknowledge that the § 1904 portion of OSHA’s 

investigation continued on after that date and resulted in OSHA’s issuing the citation at 

issue in the trial for OSHRC Docket No. 18-0188. 

(“Stipulations”; Ex. JX-0; Tr. at 11-12.) 

10 The context of this stipulation, as well as the record, support a finding that the “2018” as 

written in Exhibit JX-0 is a typographical error and that the date intended to be stipulated to is 

“September 1, 2017.” 
18 

BACKGROUND

This case concerns two postal workers (PW1 and PW2) employed by Respondent at the 

Mt. Oliver Branch of the Pittsburgh Post Office located in Pittsburgh, PA. PW1 and PW2 are both 

letter carriers and, at the time of their injuries, PW1 had been employed about 20 years and PW2 

had been employed about 1 year by Respondent. (Stip. ¶¶ 1, 2.) PW1 injured his back when he 

lifted a bag full of mail. The Secretary claims that Respondent retaliated against PW1 when 

Respondent disciplined PW1 after he reported his injury to his manager. Respondent claims that 

PW1 failed to follow proper and established safety protocol when lifting the mailbag and was 

disciplined in accordance with Respondent’s worker safety program. PW2 was bitten on her arm 

by a dog while attempting to deliver mail to a residence. The Secretary claims that Respondent 

retaliated against PW2 when Respondent disciplined her after she reported a dog bite injury to her 

manager. Respondent claims that PW2 failed to follow proper and established safety protocol 

related to mail delivery around aggressive dogs and was disciplined consistent with its worker 

safety program. 

The disciplinary process in this case was conducted according to a contract in place 

between Respondent and the National Association of Letter Carriers (NALC). (Tr. at 364-366, 

393-394, 406-407). The process includes the participation of the employee at issue, the direct 

supervisor, the manager, a higher-level official than the manager, and a union steward. (Tr. at 

394.) In this case, the process was the same for both PW1 and PW2. After PW1 notified Acting 

Manager Harry Wolfe of his injury, Wolfe talked with PW1 for 5-10 minutes and then sent PW1

to Concentra Medical (a medical provider for Respondent) for medical treatment.11 The same 

process happened for PW2. (Stip. ¶¶ 16, 28; Tr. at 32, 35, 62, 213, 239, 271; Sec’y Br. at 9, 16). 

11 No further information regarding Concentra Medical, and its relationship to Respondent and 

its employees, is in the record.
19 

With regard to PW1, PW1 testified that he did not demonstrate his lifting technique to 

Wolfe during this conversation. (Tr. at 35.) In contrast, Wolfe testified that PW1 did demonstrate 

to Wolfe his lifting technique upon his request during this conversation. (Tr. at 207.) Wolfe also 

ordered PW1 to be drug tested that day, and the results were negative. (Stip. at ¶¶ 18, 19.) 

Wolfe reported each injury to his boss, Maureen Gerst-Stewart, the Manager of Customer 

Service Operations, Pittsburgh, via e-mail on or around the day of the incidents and before predisciplinary interviews were conducted in each matter. (Tr. at 338-339; Ex. JX-15 at 2 (e-mail on 

or around May 17, 2017 re: PW1), 4 (e-mail on June 1, 2017 re: PW2).) Subsequently, delivery 

supervisor Clifford Mayfield conducted a pre-disciplinary interview (PDI) with each injured 

employee, with both PDIs accompanied by union steward Dave Bugay. (Stip. ¶¶ 20, 30; Exs. JX3, 4, 10, 11). 

Wolfe thereafter submitted formal discipline requests for both PW1 and PW2. (Tr. at 216, 

240.) Mayfield delivered the discipline packages to Respondent’s Labor Relations office for their 

consideration. (Tr. at 106 (PW1), 123-124 (PW2).) At Respondent’s Labor Department, Labor 

Relations Specialist David Chludzinski reviewed the disciplinary packages, concurred with the 

requested discipline, and drafted the discipline letters. (Tr. at 389-390, 394.) Shortly after, two 

discipline letters were issued to the injured employees. Delivery Supervisor Robin Derry issued 

the discipline to PW1, and Delivery Supervisor Clifford Mayfield issued the discipline to PW2 

(signed by Robin Derry for Clifford Mayfield). (Exs. JX-6, 13.) 

Due to the many people involved in the disciplinary process in this case, the undersigned 

created a pictorial chart as shown in “Chart A,” to assist the reader in understanding who 

participated in the disciplinary process, how much influence that person had, and at what point in 

time that person took those actions relative to the other events that occurred in this case. The 
20 

record reveals that, as relevant to this case, Respondent’s organizational structure is complex with 

overlapping relationships among Respondent’s management, workers, and union representatives. 
21 

Respondent’s Management Chain12

CHART A: Respondent’s Management Chain. 

12 The information in Chart A comes from the record and is used for visualization purposes. Chart 

A is not intended to capture Respondent’s complete organizational structure of the people at 

issue in this case, rather, it is intended to reflect the information that was provided in the record

as is relevant to the issues herein. 
22 

As Chart A indicates, PW1 and PW2 are the two postal workers who were injured in this 

case. They both had been trained in the relevant safety protocols related to their job tasks. (Tr. at 

50, 70-71.) They both reported their respective injuries to their manager at the time, Wolfe. (Tr. 

at 31, 60, 204-206.) Wolfe was more senior in management than the delivery supervisors, Clifford 

Mayfield and Robin Derry. (Tr. at 89, 137, 139; Ex. GX-13 at 1.) Mayfield and Derry were 

equivalent in rank and directly supervised PW1 and PW2 depending on who was on duty at the 

Mt. Oliver post office that day. (Tr. at 31, 89, 139, 332.) Both Mayfield and Derry directly 

reported to Wolfe. (Exs. GX-13 at 1, GX-14 at 1.) Mayfield did “what [he] was told” by Wolfe 

and conducted the PDIs of PW1 (May 22, 2017) and PW2 (June 2, 2017), with union steward

Dave Bugay also in attendance, as part of this disciplinary process. (Tr. at 106; Stip. ¶¶ 20, 30.) 

Bugay is a letter carrier in the Mt. Oliver branch, as well as a union steward. (Tr. at 467-468.) 

Chludzinski, the Labor Relations Specialist manager, reviewed the requested discipline in 

this case. (Tr at 389.) Chludzinski’s concurrence with the disciplinary request was required by 

the NALC contract as he was Wolfe’s “higher level official.” (Tr. at 394.) The purpose of the 

concurrence is to have a “higher-level manager who presumptively has more experience, maybe a 

little more levelheaded, can tell the new supervisor you’re not – this is excessive in this case. Or 

vice versa.” (Tr. at 405.) Gerst-Stewart testified that the requesting official has the power to 

override “Labor,” but never does, because “Labor” is the one familiar with the law. (Tr. at 364-

366.) Chludzinski did not talk with Wolfe’s delivery supervisors, Mayfield or Derry, regarding 

the discipline during his review of the matters. (Tr. at 390, 394.) Chludzinski testified that he 

reviews non-safety discipline requests with the goal of whether it would “be supported through the 

grievance procedure” because he “didn’t want it to be some discipline that was issued that was just 

going to get tossed in a grievance procedure.” (Tr. at 413.) Safety related disciplinary requests, 
23 

however, are different and, for example, he got “more in depth” with the disciplinary request at 

issue in this case. (Tr. at 412-415.) 

When Wolfe formally requested discipline for PW1 and PW2, Wolfe requested a 7-day no 

time off suspension to be issued to them. (Exs. JX-5, 12.) According to Chludzinkski, 

Respondent’s progressive disciplinary policy follows Respondent’s contract with NALC, which 

gives discretion to the requesting official to “skip steps” based on “mitigating or aggravating 

circumstances,” especially in his opinion for safety infractions. (Tr. at 402-405.) The steps in the 

progressive disciplinary policy include: 1) discussion with the employee, 2) written warning, 3) 7-

day no time off suspension13, 4) 14-day no time off suspension, and 5) possible termination. (Tr. 

at 405-408.) With regard to PW1, Respondent’s contract with NALC required concurrence, verbal 

or written, by a higher-level official than the one who requested the discipline. (Tr. at 394.) Here, 

Chludzinski was Wolfe’s higher-level official. PW2, however, was a “non-career” employee and 

was therefore not subject to the concurrence requirement of the NALC contract. (Tr. at 447.) 

Chludzinski testified that he still spoke with Wolfe regarding the discipline for PW2, but any 

anomalies in the paperwork for PW2 were not a potential procedural defect in the grievance 

procedure and were therefore of no concern to him. (Tr. at 446-448.) 

Chludzinski concurred with Wolfe’s requested discipline of a 7-day no time off suspension

for PW1 and PW2 and drafted their respective disciplinary letters. (Tr. at 412, 418-421.) The 

letters were issued by the delivery supervisors and presented to PW1 on May 31, 2017 and to PW2 

on June 2, 2017. 

13 According to Chludzinski, the “no time off” suspensions were a relic from the negotiations 

between Respondent and the NALC that “goes back [] to the 60’s...They’re just paper. But they 

carry the same effect for purposes of progressive discipline.” (Tr. at 406-407). The employee still 

goes to work, “they get paid...It’s just paper that goes in their file...for purposes of progressive 

discipline it can be relied upon for the next level.” (Tr at. 407.)
24 

Bugay filed a grievance on behalf of PW1 on June 8, 2017, and PW2 on June 16, 2017. 

(Tr. at 68, 477; Exs. JX-7, 14; Resp’t Br. at 23 ¶ 84.) Bugay also filed retaliation complaints under 

§ 11(c) of the OSH Act with OSHA on behalf of PW1on July 6, 2017, and PW2 on June 19, 2017. 

(Tr. at 51, 82, 511, 524-525; Resp’t Br. at 17 ¶ 42, 23 ¶ 85.) In mid-July 2017, Louis Kammermier 

replaced Wolfe and became the Acting Manager of the Mt. Oliver branch. (Tr. at 309, 320.) After 

reviewing the disciplinary matters, Kammermier rescinded and expunged both disciplinary 

suspensions in this case on August 18, 2017. (Exs. JX-7, 14.) For both rescinded disciplinary 

measures, Kammermier determined that the “evidence does not support issued discipline.” (Tr. at 

312-315; Exs. JX-7, 14.) He testified that he does not know who decided to issue the discipline. 

(Tr. at 310.) Kammermier testified that the local manager, not the supervisor, is responsible for 

the decision to send or not send the package requesting discipline. (Tr. at 334). 

To recap the timeline of events of this case, and to tie them to OSHA’s investigation 

actions, Table A summarizes the relevant events. 
25 

Timeline of Events

Event Date

PW1 injured and reported injury May 15, 2017 (Ex. JX-0 ¶¶ 13,15)

PW1 suspension May 31, 2017 (Ex. JX-0 ¶ 21)

PW2 injured and reported injury June 1, 2017 (Ex. JX-0 ¶¶ 23, 27)

PW2 suspension June 2, 2017 (Ex. JX-0 ¶ 31)

Whistleblower complaint filed June 2017 (Tr. at 524-525) 

OSHA begins 11(c) investigation June 2017 (Tr. at 525)

OSHA begins 1904 investigation July 6, 2017 (Citation)

Discipline rescinded August 18, 2017 (Ex. JX-0 ¶¶ 22, 32)

Whistleblower complaint closed September 1, 201714 (Tr. at 526, 538-539; Ex. 

JX-0 ¶ 37) 

Management statements taken October 6, 2017 (Exs. GX-13, 14)

Citation issued November 28, 2017 (Citation)

TABLE A: Timeline of Events.

As Table A shows, PW1 was injured on May 15, 2017 lifting a mailbag and he reported 

his injury to Wolfe that day. On May 31, 2017, PW1 was disciplined with a 7-day no time off 

suspension. On June 1, 2017, PW2 was injured by a dog and she reported her injury to Wolfe that 

day. The next day, PW2 was disciplined with a 7-day no time off suspension. In June 2017, union 

steward Bugay filed a grievance and whistleblower complaint regarding the discipline of PW1 and 

PW2. Shortly thereafter, also in June, OSHA began a § 11(c) investigation of the whistleblower 

complaint. 

On July 6, 2017, OSHA began a separate § 1904 investigation, under 29 C.F.R. 

§ 1904.35(b)(1)(iv), which ultimately led to the Citation at issue here. Before either OSHA 

investigation concluded, Respondent rescinded and expunged both disciplinary matters from the 

records of both PW1 and PW2 on August 18, 2017. About two weeks later, on September 1, 2017, 

OSHA closed out the § 11(c) investigation and complaint. On October 7, 2017, OSHA took

14 As noted above, he context of this stipulation, as well as the record, supports a finding that the 

“2018” as written in Exhibit JX-0 is a typographical error and that the date intended to be 

stipulated to is “September 1, 2017.”
26 

Respondent management’s statements as previously planned during the § 11(c) investigation, but 

subsequently used those statements for the § 1904 proceedings here. On November 28, 2017, 

OSHA issued the Citation for this case.

An aspect of this case that will be addressed is Respondent’s National Performance 

Assessment, Performance Evaluation System, Pay-for-Performance plan (“NPA-PES-PFP”), of 

which the Secretary devoted almost 7 pages of his post-hearing brief. (Sec’y Br. at 21-27.) The 

Secretary sets out in detail part of Respondent’s own business evaluation system and compensation 

plan as relevant to the issues in this case. While the Secretary insists that he does not allege that 

this compensation plan violates § 1904, he nevertheless claims that this compensation plan shows 

Respondent’s “incentive for taking the adverse actions at issue.” (Sec’y Br. at 22 n.7.) 

Respondent disagrees and claims that this “litigation is nothing more than an excessive 

fishing expedition, in which the Secretary hopes to stumble upon some evidence which might 

support their attempt to expand the allegation to include an indictment of Respondent’s incentive 

programs.” (Resp’t Br. at 46.) Elsewhere in its brief, Respondent claims that OSHA is attempting 

to use the cited standard under 1904 to “examine and evaluate an employer’s performance and 

compensation programs, its training and evaluation of employees, including ‘all criteria’ used to 

evaluate management.” (Resp’t Br. 42.) It is also noteworthy that no abatement was specified in 

the Citation for this matter and no discipline remained on the subject employees’ records at the 

time the Citation was issued. 

DISCUSSION

I. The Standard Applies and the Citation is Valid

A. The Standard is Applicable

To establish a violation of a standard, the Secretary must establish its applicability, the 

employer's noncompliance with it, employee access to the noncomplying condition, and the 
27 

employer's knowledge of the violation. Astra Pharma. Prods., Inc., 9 BNA OSHC 2126, 2129 

(No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d. 69 (1st Cir. 1982). “It is well settled that 

the test for the applicability of any statutory or regulatory provision looks first to the text and 

structure of the statute or regulations whose applicability is questioned.” Unarco Commercial 

Prods., 16 BNA OSHC 1499, 1502-1503 (No. 89-1555, 1993). 

The standard at issue here states that the employer must not “discharge or in any manner 

discriminate against any employee for reporting a work-related injury or illness.” 29 C.F.R. 

§ 1904.35(b)(1)(iv). The Secretary alleges that Respondent, the employer, discriminated against 

PW1 and PW2 after they reported their work-related injuries to Wolfe, their manager, by issuing 

to each of them a 7-day no time off suspension. The undersigned finds that by its plain terms, the 

standard applies to Respondent.

B. The Citation is Valid

Both parties filed motions for summary judgment in this matter in which the parties 

addressed inter alia Respondent’s “ultra vires” affirmative defense that Respondent asserted in its 

Answer. See Answer at 3; Complainant’s Motion for Partial Summary Judgment (Sept. 12, 2018); 

Respondent’s Motion for Summary Judgment (Oct. 26, 2018); Secretary’s Response in Opposition 

to Respondent’s Motion for Summary Judgment (Nov. 9, 2018); Respondent’s Reply to 

Secretary’s Response to Respondent’s Motion for Summary Judgment (Nov. 16, 2018). While 

both motions were denied, the parties address this issue again in their post-hearing briefs. See

Order Denying Complainant’s Motion for Partial Summary Judgment and Motion to Stay Pending 

Ruling (Sept. 24, 2018); Order Denying Respondent’s Motion for Summary Judgment (Nov. 20, 

2018). 

Respondent argues that the Citation under the cited standard is invalid as ultra vires. 

(Resp’t Br. at 29-42.) Respondent claims that OSHA exceeded its authority in promulgating the 
28 

cited standard because (a) “Congress created the exclusive tool for discrimination and retaliation 

regulation in section 11(c) of the OSH Act,” (b) OSHA now has “new unlimited discrimination 

causes of action,” (c) these “unlimited discrimination claims under section 1904 are arbitrary and 

capricious,” and (d) “OSHA’s description of the unlimited authority granted by Congress violate 

the non-delegation doctrine.” 

The Secretary, on the other hand, argues that he had the authority to promulgate the cited 

standard “under the recordkeeping authorities in the OSH Act, see 29 U.S.C. §§ 657(c)(1), 

657(c)(2), 657(g)(2), 673(a), 673(e), and thus the Secretary’s reasonable interpretation of the Act 

is entitled to controlling deference under Chevron USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984).” 

(Sec’y Br. at 29.) The Secretary also refers to a recent well-researched and well-reasoned order 

issued by Commission ALJ William S. Coleman on this same issue in a similar matter before the 

Commission. See U.S. Postal Serv., OSHRC No. 18-0462, Order Granting Secretary’s Motion for 

Partial Summary Judgment on Affirmative Defenses Numbered 8 & 9 in Respondent’s Answer 

(Dec. 27, 2018) (Coleman Order).

15 

The undersigned has reviewed the parties’ arguments in their post-hearing briefs and in 

their motions for summary judgment (and oppositions and responses thereto). The undersigned 

also reviewed the Coleman Order and hereby incorporates by reference into this Decision its

detailed analysis of this issue into this Decision. See Attachment A. For the following reasons, 

the undersigned rejects Respondent’s arguments and agrees with the Secretary that the Citation in 

this matter is valid. 

15 As the Secretary notes, that case settled shortly after Judge Coleman issued that order. U.S. 

Postal Serv., No. 18-0462, Consent Order Approving Settlement (Feb. 26, 2019); Sec’y Br. at 30 

n.10.
29 

The Coleman Order addresses the same arguments Respondent raises in this case. It begins 

by reviewing the statutory and regulatory background to analyze the Secretary’s authority to 

promulgate recordkeeping regulations. (Coleman Order at 3-5.) The standard at issue here was 

promulgated pursuant to sections 2(b), 8(c)(2), 8(g)(2), and 8(c)(1) of the OSH Act. (Coleman 

Order at 5-13.) Section 9(a) then gives the Secretary the duty and the power to enforce this 

regulation by conducting inspections and issuing citations. (Coleman Order at 4.) During the 

promulgation of the subject regulation, the Secretary addressed comments regarding the standard’s 

similarity to section 11(c). (Coleman Order at 8-13.) The Secretary stated that “the principal 

motivation for the proposed anti-retaliation regulation is not to redress an employee’s 11(c) rights, 

but rather to advance OSHA’s responsibility to collect accurate injury and illness statistics[.]” 

(Coleman Order at 10.) 

With this in mind, the Coleman Order analyzes arguments relating to whether the alleged 

standard was invalid as ultra vires, and whether it lacked a rational basis and/or whether it was 

arbitrary and capricious, under the framework established by Chevron U.S.A. Inc. v. Natural Res. 

Def. Council, Inc., 467 U.S. 837 (1984). (Coleman Order at 2, 14, 24.) According to the Coleman 

Order, “nothing in section 11(c) [of the OSH Act] speaks to whether OSHA may exercise its 

authority to promulgate regulations that promote accurate recordkeeping where anti-retaliation and 

recordkeeping goals overlap.” (Coleman Order at 19.) It further explains that “[i]nterpreting the 

Act to permit the Secretary to promulgate a regulation that advances the accuracy of injury and 

illness data is consistent ‘with the design and structure of the statute as a whole.’ ” (Coleman 

Order at 19 citing Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014).) 

The Coleman Order also concludes that the rulemaking record “far surpasses” the 

minimum requirements articulated in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 

(2016) for assessing whether certain rulemaking is arbitrary and capricious under the 
30 

Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (APA). (Coleman Order at 17, 21.) 

Similarly, it found that the “preamble to the final rule more than amply establishes that the antiretaliation regulation is ‘reasonably related’ to the requirements of the Act that employers provide 

and that OSHA collect accurate injury and illness data,” and therefore the regulation did not violate 

the “non-delegation” doctrine as addressed in Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 214 

(1989). (Coleman Order at 21-22.) The Coleman Order goes on to clarify that “[e]nforcement of 

the anti-retaliation regulation is not rendered arbitrary and capricious simply because there could 

be a parallel section 11(c) and section 9(a) proceedings involving the same alleged retaliatory act.” 

(Coleman Order at 22.) Conflicts arising under the parallel proceedings, such as double recovery, 

could be prevented by equitable principles, and issue or claim preclusion could be permitted to 

solve such conflicts. (Coleman Order at 22.)

Finally, in sum, the Coleman Order concludes that:

Enforcement of section 1904.35(b)(1)(iv) pursuant to section 9(a) of the Act is well 

within the bounds of permissible construction of the Act and is neither arbitrary nor

capricious. This permissible interpretation of the Act is due ‘controlling weight’ 

under Chevron, inasmuch as the anti-retaliation regulation was promulgated 

pursuant to Congress’s express delegations of authority to the Secretary (a) to 

promulgate regulations ‘as necessary or appropriate for the enforcement of this 

[Act] or for developing information regarding the causes and prevention of 

occupational accidents’ in section 8(c)(1), (b) to ‘prescribe regulations requiring 

employers to maintain accurate records of ... work-related deaths, injuries and 

illnesses,’ in section 8(c)(2), and (c) to prescribe regulations deemed necessary to 

carry out [his] responsibilities under this [Act]’ in section 8(g)(2). 

(Coleman Order at 23 citing Chevron, 467 U.S. at 843-844.) 

Judge Coleman’s analysis persuasively addresses Respondent’s arguments raised in this 

matter. The undersigned agrees with the Secretary regarding the Coleman Order and embraces the 

legal conclusions as applied to the issues in this case. For these reasons, the undersigned finds that 

the cited standard is a valid exercise of the Secretary’s rule-making authority and rejects 

Respondent’s arguments that it is invalid as ultra vires or arbitrary and capricious under the APA. 
31 

Accordingly, the undersigned concludes that the Citation issued in this case pursuant to 29 

C.F.R. § 1904.35(b)(1)(iv) is valid. 

II. The Secretary Failed to Establish a Violation of the Cited Standard

The undersigned finds that the Secretary failed to establish a violation of the cited standard 

in this case. The Secretary has not proven that Respondent discriminated against PW1 or PW2 

because they reported their work injuries. 

A. Applicable Law

According to the Secretary, “to establish a violation of § 1904.35(b)(1)(iv), the Secretary 

must show by a preponderance of the evidence that: 1) the employee reported a work-related injury 

or illness; 2) the employer took adverse action against the employee; and 3) the employer took the 

adverse action because the employee reported a work-related injury or illness.” (Sec’y Br. at 34

citing JX-16 OSHA Interim Enforcement Procedures for New Recordkeeping, Section III – 

Special Interim Enforcement, Inspection, Referral, and Citation Procedures for Violations of 

1904.35(b)(1)(iv), Sub-section A – Elements of the violation, p. 3.) The Secretary further states 

that “[t]hese elements of proof are entirely consistent with well-established law of retaliation and 

discrimination.” (Sec’y Br. at 35 citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); 

Tex.as Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981); Postal Serv. Bd. of Gov. 

v. Aikens, 460 U.S. 711, 715 (1983); Acosta v. Lloyd Indus., Inc., 291 F.Supp. 3d 647 (E.D. Pa. 

2017).) 

The Third Circuit, in which this case arose, applies the burden-shifting scheme of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) if a statute does not provide for a burdenshifting framework to determine discrimination. Doyle v. U. S. Sec'y of Labor, 285 F.3d 243, 250 

(3d Cir. 2002); see also 29 U.S.C. § 660(a) (“Any person adversely affected or aggrieved by an

order of the Commission . . . may obtain . . . review . . . in any United States court of appeals for 
32 

the circuit in which the violation is alleged to have occurred or where the employer has its principal 

office, or in the Court of Appeals for the District of Columbia Circuit . . . .”); Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the 

circuit where it is probable a case will be appealed). 

District courts analyzing section 11(c) claims under the OSH Act also apply the McDonnell 

Douglas framework. See, e.g., Perez v. E. Awning Sys., Inc., No. 3:15-CV-01692 (MPS), 2018 

WL 4926447 (D. Conn. Oct. 10, 2018); Acosta v. Dura-Fibre LLC, No. 17-C-589, 2018 WL

2433589 (E.D. Wis. May 30, 2018); Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d 647 ; Perez v. 

Champagne Demolition, LLC, No. 112CV1278FJSTWD, 2016 WL 3629095 (N.D.N.Y. June 29, 

2016); Perez v. Pac. Ship Repair & Fabrication, Inc., No. C14-1773-JCC, 2015 WL 7292594 

(W.D. Wash. Nov. 16, 2015); Chao v. Blue Bird Corp., No. 5:06-CV-341 (CAR), 2019 WL 

485471, (M.D. Ga. Feb. 26, 2009), aff'd sub nom. Solis v. Blue Bird Corp., 404 F. App'x 412 (11th 

Cir. 2010) (unpublished). 

When the Commission is asked to apply a legal test developed outside of the OSH Act, the 

Commission looks to whether the OSH Act’s goals of ensuring workplace health and safety are 

preserved by applying that test. See, e.g., Sharon & Walter Constr., Inc., 23 BNA OSHC 1286, 

1294-95 (No. 00-1402, 2010) (considering “substantial continuity test” developed under the 

National Labor Relations Act for purposes of repeat characterization under the OSH Act). As 

discussed in the previous section, the standard at issue in this case was properly promulgated 

pursuant to section 8(c)(1) of the OSH Act which provides that “[e]ach employer shall make, keep 

and preserve ... such records regarding his activities relating to this Act as the Secretary ... may 

prescribe by regulation as necessary or appropriate for the enforcement of this Act [.]” 29 U..S.C. 

§ 657(c)(1). The OSH Act further directs the Secretary to “prescribe such rules and regulations as 

he may deem necessary to carry out [his] responsibilities under this Act.” 29 U.S.C. § 657(g)(2). 
33 

The OSH Act is silent as to the burden-shifting framework to be applied to a discrimination 

analysis of a regulation properly promulgated under the OSH Act. Moreover, the McDonnell 

Douglas burden-shifting scheme is the well-established framework for discrimination case law,

both parties agree to apply this test, and the undersigned finds that it is the appropriate framework 

to apply in this case. 

In his brief, the Secretary advances a retaliation theory of discrimination in this case.16 

(Sec’y Br. at 34-46.) The McDonnell Douglas framework for a retaliation discrimination analysis 

is a three-step burden-shifting test that is summarized as follows: 

[i]n the absence of direct evidence, the plaintiff must first make a prima facie case 

of retaliation by showing (1) participation in a protected activity, (2) a subsequent 

adverse action by the employer, and (3) evidence of a causal connection between 

the protected activity and the adverse action. The burden then shifts to the 

defendant, who must articulate an appropriate non-discriminatory reason for its 

action. Finally, if the defendant satisfies its burden, the plaintiff must then 

demonstrate that the proffered reason is pretextual. 

Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 653(citations omitted); see also Reich v. Hoy Shoe 

Co., 32 F.3d 361, 365 (8th Cir. 1994) (adopting three-pronged framework for analyzing retaliation 

case under § 11(c) of the OSH Act). 

B. Analysis 

The Secretary’s approach to presenting his prima facie case with this three-step burden 

shifting test to the matter at hand is consistent with this test. (Sec’y Br. at 34 citing Ex. JX-16.) 

As such, the undersigned examines the facts here to see if the Secretary established whether: “1) 

the employee reported a work-related injury or illness; 2) the employer took adverse action against 

16 Respondent also discusses the facts of this case through a disparate treatment theory of 

discrimination. (Resp’t Br. at 47-49.) As the Secretary does not advance a disparate treatment 

theory, the undersigned deems the Secretary abandoned that theory in this case. L&L Painting 

Co., 23 BNA OSHC 1986, 1989 n. 5 (No. 05-0055, 2012) (holding that items not addressed in briefs 

before the Commission are deemed abandoned).
34 

the employee; and 3) the employer took the adverse action because the employee reported a workrelated injury or illness.” (Sec’y Br. at 34). 

1. Protected Activity

The facts here readily establish the Secretary’s prima facie case. Even Respondent agrees 

that the Secretary has presented a prima facie case of retaliation. (Resp’t Br. at 50.) Both PW1 

and PW2 engaged in protected activity when they each reported their work-related injury to Wolfe. 

Perez v. U.S. Postal Serv., 76 F. Supp. 3d 1168, 1184 (W.D. Wash. 2015) (“The scope of rights 

protected implicitly and explicitly under the Act is broad.”); (Sec’y Br. at 36 citing 29 C.F.R. 

§§ 1904.35(b)(1)(iv)(“You must not discharge or in any manner discriminate against any 

employee for reporting a work-related injury or illness.”); 29 C.F.R. § 1904.36 (“In addition to 

§ 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an 

employee for reporting a work-related fatality, injury, or illness[.]”); Resp’t Br. at 50 (“Both 

employees engaged in protected activity and both were subject to an adverse action.”). 
35 

2. Adverse Action

Both PW1 and PW2 suffered an adverse action when they were issued a 7-day no time off 

suspension. In a retaliation claim, an “adverse action” can include an action that could “dissuade 

a reasonable employee from exercising their protected conduct.” Burlington N. and Santa Fe Ry. 

Co. v. White, 548 U.S. 53 (2006). The Secretary has incorporated Burlington into his analysis by 

defining an adverse action as whether the “action would deter a reasonable employee from 

accurately reporting a work-related injury or illness.” (Ex. JX-16 at 3.) The 7-day no time off 

suspension was recordable, and could serve as a pre-requisite for subsequent discipline, as part of 

Respondent’s progressive disciplinary policy. A recordable disciplinary action that could serve as 

a basis for the next level of discipline could chill a reasonable employee from reporting a 

workplace injury. Even if, as in this case, the discipline was subsequently expunged, “[a]n 

employer cannot nullify a retaliation claim simply by offering to undo its adverse action once the 

possibility of a government enforcement action looms on the horizon. Further, a subsequent offer 

of reinstatement does not eliminate the chill of the retaliatory act.” Perez v. E. Awning Sys., Inc., 

2018 WL 4926447, at *7. 

3. Causality

With regard to the third prong, causality, Respondent disciplined both PW1 and PW2 

shortly after they reported their injuries – within two weeks for PW1 and one day for PW2. Courts 

have looked to open hostility or temporal proximity, to find a causal link between the protected 

activity and the adverse action. See, e.g., Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 654 

(focusing on timing and “ongoing antagonism” as two main factors in finding the causal link 

necessary for retaliation); Perez v. E. Awning Sys., Inc., 2018 WL 4926447, at *8 (“A plaintiff may 

establish causation either directly through a showing of retaliatory animus, or indirectly through a 

showing that the protected activity was followed closely by the adverse action”) (citation omitted). 
36 

Direct evidence is that which ‘if believed, proves the fact of discriminatory animus 

without inference or presumption.’ Direct evidence includes statements 

demonstrating hostility toward a protected status. Circumstantial evidence may 

also be used to show causation, provided that the evidence ‘give[s] rise to an 

inference of unlawful discrimination.’ Temporal proximity between protected 

activity and subsequent adverse actions can constitute sufficient circumstantial 

evidence.

Perez v. U.S. Postal Serv., 76 F. Supp. 3d at 1188 (citations omitted).

There is no direct evidence, such as a statement from Wolfe, establishing hostility toward 

PW1 or PW2 solely due to their reporting an injury and not due to a safety infraction. 

Circumstantially, however, due to the close temporal proximity of the suspensions to when PW1 

and PW2 reported their injuries to Wolfe, the undersigned finds, and the parties do not dispute, 

that the Secretary established the causality connection between protected activity and retaliatory 

action. (Sec’y Br. at 41-42; Resp’t Br. at 50.) The Secretary has therefore established a prima 

facie case of retaliation. 

4. Burden Shift: Legitimate, Nondiscriminatory Reason 

At this point, the burden shifts to Respondent to proffer a legitimate, nondiscriminatory 

reason for issuing the 7-day no time off suspensions to PW1 and PW2 in this case. Acosta v. DuraFibre LLC, 2018 WL 2433589, at *6. This burden is “one of production, not persuasion.” Reeves 

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Respondent states that the 

suspension letters themselves, as well as the testimony supporting Respondent’s actions in this 

case, articulate its legitimate, non-discriminatory business reasons for issuing the suspensions to 

PW1 and PW2. (Resp’t Br. at 50.) 

The suspension letter to PW1 states that Respondent issued the 7-day no time off 

suspension because “it was determined that [he] did not practice safety or proper lifting techniques 

while handling the load.” (Ex. JX-6 at 1.) The letter cites to multiple provisions of the 
37 

Respondent’s “Employee & Labor Relations Manual,” and the “City Delivery Carriers Duties & 

Responsibility Methods Handbook.” (Id.) 

The suspension letter to PW2 states the Respondent issued the 7-day no time off suspension 

because she “should have avoided getting close enough to the fence that the dog could bite [her].” 

(Ex. JX-13 at 1.) This letter cites to Respondent’s Postal Rules & Regulations, “including but not 

limited to[,] Section 133.1 of Handbook M-41[:] Always exercise care to avoid personal injury 

and report all hazardous conditions to the unit manager.” (Id.) 

The undersigned finds that Respondent has produced sufficient evidence for this trier of 

fact to conclude that Respondent disciplined PW1 and PW2 because they violated Respondent’s 

worker safety rules. Reeves, 530 U.S. at 142. The suspension letters articulate legitimate, nondiscriminatory business reasons for the issued disciplinary measures for PW1 and PW2. 

5. Burden Shift: Pretext

The burden now shifts back to the Secretary to demonstrate that this proffered reason is 

pretextual. Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 653; Acosta v. Dura-Fibre LLC, 2018 

WL 2433589, at *6 (holding if employer articulates “legitimate, nondiscriminatory reason,” the 

burden shifts back to the plaintiff to submit evidence that the employer’s explanation is 

pretextual”) citing David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 

2017). 

A plaintiff may demonstrate pretext by showing that the defendant’s proffered 

reasons for taking adverse employment actions “(1) had no basis in fact; (2) did not 

actually motivate [the adverse employment actions]; or (3) [were] insufficient to 

motivate [the adverse employment actions]” and were therefore pretextual. 

Acosta v. Dura-Fibre LLC, 2018 WL 2433589, at *7 (citation omitted); Chao v. Blue Bird Corp., 

2009 WL 485471, at *5 (citations omitted) (to support a finding of pretext, courts have looked to 

evidence such as changes in the employer's proffered reason for its employment decision or 

whether the employer’s investigation of the incident was thorough or complete). 
38 

Here, the Secretary’s case falters. The discipline in this matter was subject to management 

discretion and approved by a reviewing official. The suspension itself was in accordance with 

Respondent’s progressive disciplinary policy, as testified to by Chludzinski, whose testimony the 

Secretary does not attack. The discipline was necessarily issued close in time to the reporting of 

the injury as it related to the action of the employee that caused the injury. 

The Secretary claims that “the issued disciplines are completely unsupported by the facts, 

and Respondent’s proffered explanations are pretextual and unworthy of credence.” (Sec’y Br. at 

43.) Yet the evidence that the Secretary relies on does not support his claim. For example, the 

Secretary argues that “there is no evidence to support that [PW1] lifted improperly, and no 

witnesses to either his lifting or his alleged reenactment for Wolfe.” (Id..) At the same time, the 

Secretary questions Wolfe’s testimony that PW1 demonstrated improper lifting to him, arguing 

“that there is no evidence to support Wolfe’s claim.” (Id. at 32.) Chludzinski, however, 

corroborated Wolfe’s testimony. (Tr. at 420.) The Secretary also questions PW2’s discipline letter 

that states that “having her dog spray ‘would not have helped in this instance.’ ” (Sec’y Br. at 44.) 

The Secretary, however, does not address how that section of the letter began, “you should have 

avoided getting close enough to the fence that the dog could bite you.” (Ex. JX-13 at 1.) 

The Secretary then questions the details and procedural irregularities within Respondent’s 

disciplinary process. For instance, the Secretary criticizes that Mayfield’s and Bugay’s PDI notes 

did not mention specific facts that would support unsafe acts or rule violations. (Sec’y Br. at 43-

44.) Yet, the Secretary does not question the validity of Chludzinski’s testimony. Chludzinski 

testified that he concurred with the requested discipline based on a conversation with Wolfe. 

Chludzinski also was not surprised about irregularities in the documentation. (Tr. at 446-447.) 

Chludzinski testified that he “writes hundreds of these a year,” and therefore does not recall all 
39 

specifics relating to PW1’s discipline, and for similar reasons does not recall all the documentation 

he reviewed for PW2’s discipline. (Tr. at 408, 432-434.) 

The only aspect that raised Chludzinski’s eyebrows was the drug test order on PW1. (Tr. 

at 421.) Wolfe testified that he did not remember ordering the drug test, even though the e-mails 

in the record establish that he did (the parties stipulated to it). (Tr. at 223-224, 245-246; Stip. at 

¶ 18.) Respondent argues that the Secretary failed to prove that this particular drug test order is 

connected to PW1’s reporting of his injury. (Resp’t Br. at 52.) The Secretary claims that the drug 

test order is proof of animus because it was a deviation from Respondent’s own personnel policies. 

It is not disputed that the drug test order deviated from Respondent’s personnel policies, 

but this fact alone is not enough to establish pretext. The case the Secretary cites for support for 

his proposition, Perez v. U.S. Postal Serv., 76 F. Supp. 3d 1168, is distinguishable from this case. 

In that case, the evidence regarding deviation from personnel policies was overt and rampant, 

including the fact that the employer did not consult with “Labor Relations” in that matter. Perez 

v. U.S. Postal Serv., 76 F. Supp. 3d at 1190. Here, as Chludzinski testified, all Labor procedures 

were followed, and the Secretary has not established that any irregularities in paperwork are a 

result of inherent retaliatory intent; rather, the record establishes that irregularities in paperwork 

are a result of general mishandling of paperwork. 

The Secretary also relies on the fact that Kammermeir eventually threw out the discipline, 

writing “evidence does not support issued discipline.” (Sec’y Br. at 45.) Yet, while 

Kammermeir’s testimony reveals that he had a barren record from which to adjudicate the 

grievance, he also testified that “[i]t’s typical for information not to be passed along through the 

process. Either it’s lost or just not placed in there.” (Tr. at 332.) 

The Secretary also alleges that Respondent’s pay-for-performance compensation and 

incentive plan “created an incentive for managers to reduce the number of carrier hours and 
40 

reported injuries.” (Sec’y Br. at 45.) The Secretary further claims that Respondent’s “upper level 

management understood the potential for this kind of performance plan to incentivize managers to 

discourage injury-reporting,” and that Wolfe “was aware that his performance was evaluated solely 

on his NPA scorecard.” (Id. at 45-46.) The Secretary then boldly declares, “[w]hile some 

supervisors and managers may balance these conflicts appropriately, others, such as Wolfe in this 

case, may be unduly influenced by their desire for performance achievement, from a career 

advancement point of view, as well as a financial point of view.” (Id.. at 46.) 

Respondent asserts that the Secretary has provided “nothing more than unfounded 

suspicion to support its Citation. There is simply no evidence of discriminatory or retaliatory 

animus in the record.” (Resp’t Br. at 51.) The undersigned agrees. The Secretary has failed to 

carry his burden at this stage in the retaliation analysis. As the preamble to the final rule noted: 

It is important to note that the final rule prohibits employers only from taking 

adverse action against an employee because the employee reported an injury or 

illness. Nothing in the final rule prohibits employers from disciplining employees 

for violating legitimate safety rules, even if the same employee who violated a 

safety rule also was injured as a result of that violation and reported that injury or 

illness (provided that employees who violate the same work rule are treated 

similarly without regard to whether they also reported a work-related illness or 

injury). What the final rule prohibits is retaliatory adverse action taken against an 

employee simply because he or she reported a work-related injury or illness.

Improve Tracking of Workplace Injuries and Illnesses, Final Rule, 81 Fed. Reg. 29623, 29672 

(May 12, 2016) (to be codified at 29 C.F.R. Part 1904); see also 29 C.F.R. § 1977.6. (“An 

employee’s engagement in activities protected by the Act does not automatically render [him/her] 

immune from discharge or discipline for legitimate reasons, or from adverse action dictated by 

non-prohibited considerations.”). 

The Secretary must put forth more than conjecture regarding Respondent’s compensation 

incentive program – especially if the Secretary assures the undersigned that the program does not 

itself violate the cited standard. (Sec’y Br. at 22 n.7.) Nothing in the record supports the 
41 

Secretary’s claim that Wolfe treated these employees differently, or discriminated against these 

employees, who reported their injuries because they reported their injuries. Indeed, Respondent’s 

organizational structure is set up so that employees can report their injuries, receive medical 

treatment, and file grievances to support them. This structure is frequently used as Chludzinski 

testified that he works on “hundreds” of these issues yearly. (Tr. at 408.) PW2 testified that she 

did not feel discouraged to report another injury even after being disciplined. (Tr. at 81.) 

Finally, given that the suspensions in this matter were rescinded and expunged from the 

employees’ records in this case, before the Citation was issued, the undersigned questions how the 

Secretary would propose that Respondent abate this Citation Item. The Secretary is aware of the 

need to specify abatement for citations issued pursuant to this new standard as evidenced in the 

Secretary’s interim enforcement procedures, which were in effect at the time of issuance: 

Abatement: The citation must include remedies for the aggrieved employee, such 

as back wages, removal of disciplinary action, reinstatement of lost time and wages, 

etc., where appropriate... Also, the citation must include the means for abatement 

of the underlying policy or procedure that is related to the merit determination.

Ex. JX-16 at 5. 

No abatement, however, is specified in the Citation. There is no remedy for the employees 

at issue here, as they had already been made whole well before the Citation was issued in this case. 

The Secretary claims Respondent’s pay-for-performance compensation and incentive plan is not 

violative of the cited standard, but the Secretary spent a considerable amount of time researching 

it and presenting the research in his brief. To the extent that the Secretary is attempting to touch 

Respondent’s incentive programs, as Respondent suggests, the undersigned finds that the Secretary 

has failed to present enough evidence tying Wolfe’s actions to the pay-for-performance 

compensation program in this case. 

The Secretary failed to establish that Respondent violated the cited standard.
42 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact 

and conclusions of law inconsistent with this decision are denied. 

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that: 

1) Citation 1, Item 1, alleging an other-than-Serious violation of 29

C.F.R. § 1904.35(b)(1)(iv), is VACATED.

SO ORDERED.

/s/ Keith E. Bell

Keith E. Bell

Judge, OSHRC 

DATE: May 18, 2020 

Washington, D.C. 

ATTACHMENT A

U.S. Postal Serv., “Order Granting Secretary’s Motion For Partial Summary Judgment On 

Affirmative Defenses Numbered 8 & 9 In The Respondent’s Answer” (No. 18-0462) (Dec. 27, 

2018) (ALJ Coleman). 
 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. 18-0462 

U. S. POSTAL SERVICE, 

Respondent. 

ORDER GRANTING 

JUDGMENT ON AFFIRMATIVE DEFENSES NUMBERED 8 & 9 IN THE 

On February 26, 2018, the Secretary issued a one-item other-than-serious citation 

(Citation) to the Respondent, the United States Postal Service (USPS). The sole item 

alleged that on or about August 29, 2017, 

Pennsylvania, -day working suspension to a carrier because he reported a 

work-related injury on August 16, 2017. The citation item alleged that this action violated 29 

C.F.R. § 1904.35(b)(1)(iv), which provides that an employer must not discharge or in any manner 

discriminate against any employee for reporting a work- The Citation 

proposed a penalty of $5543 and required abatement by March 9, 2018. 

USPS timely contested the Citation and thereby invoked the jurisdiction of the 

Occupational Safety and Health Review Commission (Commission) pursuant to section 10 of the 

Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 659. The Secretary thereafter 

duly filed a complaint pursuant to Commission Rule 34(a), 29 C.F.R. § 2200.34(a), wherein the 

Secretary re-asserted the alleged violation, proposed penalty, and abatement. 
2

USPS duly filed an answer pursuant to Commission Rule 34(b), in which it denied the 

allegations of the Citation and interposed a number of affirmative defenses, including the 

following two defenses: 

.

are arbitrary and capricious.

The Secretary filed a motion for partial summary judgment dated September 14, 2018, 

seeking judgment as a matter of law on those two affirmative defenses. (If the motion were 

granted, the remedy on the motion would be to strike the affirmative defenses.) The Respondent 

filed a memorandum in opposition to the motion, and the Secretary filed a reply memorandum on 

October 24, 2018. 

The first issue for decision, which will be , may be 

stated as follows: 

Did Congress intend the procedure prescribed by section 11(c) of 

the Act to be the exclusive means to redress retaliatory acts that both 

(a) violate an employee s 11(c) rights, and (b) undermine 

duty to collect accurate injury and illness data? 

If the section 11(c) procedure is exclusive, that would be the end of the matter attempted 

enforcement of section 1910.35(b)(1)(iv) by issuing a citation and abatement order under section 

9(a) of the Act (along with a proposed penalty under section 10(a) of the Act) would contravene 

the Act and be ultra vires. In that event, the Citation would be ordered vacated. 

But, if the enforcement mechanism prescribed in section 11(c) is not exclusive, then the 

following issue, must be 

resolved: 

Did the Secretary act arbitrarily and capriciously in promulgating 

a regulation that proscribes certain conduct (i.e., employer 
3

retaliation against an employee for having reported a workrelated injury or illness) that is already proscribed by section 

11(c) of the Act? 

As described below, the answers to both questions are negative, so 

is GRANTED, and the two affirmative defenses described above shall be ordered stricken from 

the answer. 

Statutory and Regulatory Background 

Authority to Promulgate 

Recordkeeping Regulations 

which is assure so 

far as possible every working man and woman in the Nation safe and healthful working conditions 

procedures with respect to occupational safety and health which procedures will help achieve the 

objectives of this [Act] and accurately describe the nature of the occupational safety and health 

 

Section 24(a) of the Act thus directs the Secretary to 

[C]ompile accurate statistics on work injuries and illnesses which shall include all 

disabling, serious, or significant injuries and illnesses, whether or not involving loss 

of time from work, other than minor injuries requiring only first aid treatment and 

which do not involve medical treatment, loss of consciousness, restriction of work 

or motion, or transfer to another job. 

29 U.S.C. § 673(a) (emphasis added). 

Toward that end, section 8(c)(2) of the Act directs prescribe regulations 

requiring employers to other than minor 

injuries requiring only first aid treatment and which do not involve medical treatment, loss of 

 657(c)(2). 

(emphasis added). And in section 8(g)(2), Congress delegated even broader lawmaking power to 
4

regulations as he may deem 

necessary to carry out [his] responsibilities under this 

added). Section 8(c)(1) of the Act requires employers 

recordkeeping regulations it provides 

such records regarding his activities relating to this Act as the Secretary may prescribe by 

regulation as necessary or appropriate for the enforcement of this Act or for developing 

information regarding the causes and prevention of occupational accidents and illnesses.

U.S.C. §657(c)(1) (emphasis added). 

S

violations. 29 U.S.C. § 658(a). 

Section 11(c) of the Act and the 

Interpretive Regulation at 29 C.F.R. Part 1977 

Section 11(c) of the Act prohibits certain retaliatory acts against employees and includes 

an enforcement mechanism for remedying such unlawful acts. 29 U.S.C. § 660(c). The 11(c) 

enforcement mechanism is triggered by an employee filing a complaint with the Secretary alleging 

retaliation for having exercised . Section 660(c)(1). Section 11(c) 

provides in its entirety as follows: 

(1) No person shall discharge or in any manner discriminate against 

any employee because such employee has filed any complaint or 

instituted or caused to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in any such proceeding or 

because of the exercise by such employee on behalf of himself or 

others of any right afforded by this [Act]. 

(2) Any employee who believes that he has been discharged or 

otherwise discriminated against by any person in violation of this 

subsection may, within thirty days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination. Upon 

receipt of such complaint, the Secretary shall cause such investigation 
5

to be made as he deems appropriate. If upon such investigation, the 

Secretary determines that the provisions of this subsection have been 

violated, he shall bring an action in any appropriate United States 

district court against such person. In any such action the United States 

district courts shall have jurisdiction, for cause shown to restrain 

violations of paragraph (1) of this subsection and order all appropriate 

relief including rehiring or reinstatement of the employee to his 

former position with back pay. 

(3) Within 90 days of the receipt of a complaint filed under this 

subsection the Secretary shall notify the complainant of his 

determination under paragraph 2 of this subsection. 

A few years after the enactment of the Act, the Secretary promulgated a regulation (now 

codified at 29 C.F.R. pt. 1977), the stated purpose of which is 

interpretations of the various provisions of section 11(c) of the Act which will guide the Secretary 

of part 1977 address the matter of whether the Secretary regards section 11(c) to provide an 

exclusive mechanism for redressing unlawful retaliation against an employee for a permissible 

reason other than to redress 

Promulgation of the Cited Regulation, § 1904.35(b)(1)(iv)

Subparagraph (b)(1) of section 1904.35 (of which the cited subparagraph (iv) is a part) was 

recently promulgated with a declared effective date of August 10, 2016.1 Final Rule, Improve 

Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016) (to be codified 

at 29 C.F.R. pts. 1904 and 1902). The preamble to the final rule explains that section 1904.35(b)(1) 

, 

section 6 of the Act. Id. at 29656 & 29687; see also Thermal 

 

1

 Although the regulation was effective on August 10, 2016, the Secretary delayed its 

enforcement until December 1, 2016. See

available at www.osha.gov/dep/memos/recordkeeping_memo_11102016.html 
6

Reduction Corp., 12 BNA OSHC 1264, 1266 (No. 81

recordkeeping regulation was promulgated pursuant to 

The promulgation of subparagraph (b)(1) was part of a wider ranging amendment to 

 regulation for Recording and Reporting Occupational Injuries and Illnesses, which is 

codified at 29 C.F.R. Part 1904. Although the validity of only subparagraph (b)(1)(iv) is at issue 

here, the entirety of subparagraph (b)(1) provides important context. It provides as follows:2 

§ 1904.35 Employee involvement. 

(a) 

(b) Implementation (1) What must I do to make sure that 

employees report work-related injuries and illnesses to me? (i) You 

must establish a reasonable procedure for employees to report workrelated injuries and illnesses promptly and accurately. A procedure is 

not reasonable if it would deter or discourage a reasonable employee 

from accurately reporting a workplace injury or illness; 

(ii) You must inform each employee of your procedure for reporting 

work-related injuries and illnesses; 

(iii) You must inform each employee that: 

(A) Employees have the right to report work-related injuries and 

illnesses; and 

(B) Employers are prohibited from discharging or in any manner 

discriminating against employees for reporting work-related injuries 

or illnesses; and 

(iv) You must not discharge or in any manner discriminate against 

any employee for reporting a work-related injury or illness. 

The rulemaking process that resulted in the eventual promulgation of subparagraph 

(b)(1)(iv) formally commenced on November 8, 2013, when OSHA caused to be published a 

 

2

 Before the 2016 amendment, section 1904.35(b)(1) had provided as follows: 

(b) Implementation. (1) What must I do to make sure that employees 

report work-related injuries and illnesses to me?

(i) You must set up a way for employees to report work-related 

injuries and illnesses promptly; and 

(ii) You must tell each employee how to report work-related injuries 

and illnesses to you. 
7

Notice of Proposed Rulemaking (NPRM) to amend its recordkeeping regulations to add 

requirements for the electronic submission of injury and illness information employers are already 

required to keep under OSHA's regulations for recording and reporting occupational injuries and 

illnesses. Proposed Rule, Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 

67254 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pts. 1904 & 1952). The NPRM cited 

the provisions of sections 8 and 24 of the Act, described above, as providing the legal authority 

for the proposal. Id. at 67255; 29 U.S.C. §§ 657 & 673. 

OSHA conducted a public meeting on the NPRM on January 9-10, 2014.3 The preamble 

to the final rule describes certain comments made during that public meeting: 

A concern raised by many meeting participants was that the 

proposed electronic submission requirement might create a 

motivation for employers to under-report injuries and illnesses. 

Some participants also commented that some employers already 

discourage employees from reporting injuries or illnesses by 

disciplining or taking other adverse action against employees who 

file injury and illness reports. 

81 Fed. Reg. at 29625; accord Supplemental NPRM, Improve Tracking of Workplace Injuries and 

Illnesses, 79 Fed. Reg. 47605 (Aug. 14, 2014). 

These comments caused OSH adding provisions that will make it a violation 

for an employer to discourage employee protect[ing] 

the integrity 5. 

Consequently, OSHA issued a Supplemental NPRM on August 14, 2014 that solicited public 

comment on adding three requirements intended to promote the accurate reporting of work-related 

 

3

 The administrative record on the rulemaking, which includes the transcripts of the 

public meeting, is available at the following URL: 

https://www.regulations.gov/docket?D=OSHA-2013-0023 
8

prohibit employers from taking adverse 

action against employees for reporting injuries and illnesses. 4 Id. 

The stated legal authority for these proposed additions to the 

recordkeeping regulation remained sections 8 and 24 of the Act, as had been cited in connection 

with the original NPRM. 79 Fed. Reg. at 47606. The Supplemental NPRM expresses the view 

that including the proposed anti-retaliation provision in the recordkeeping regulation would 

comfortably within these various g employers may not discipline 

or take adverse action against workers for reporting injuries and illnesses, workers will feel less 

hesitant to report their injuries and illnesses, and their employers' records and reports will be more 

accurate , as required by sections 8 and 24 of the Act. Id. The Supplemental NPRM noted that 

there had been evidence that 

unlawful retaliation had the effect of suppressing employee reporting of work-related injuries and 

illnesses: 

Further, given testimony that some employers already engage in 

such practices, and the possibility that the proposed rule could 

provide additional motivation for employers to do so, prohibiting 

employers from taking adverse actions against their employees for 

reporting injuries and illnesses in this rulemaking is "necessary to 

carry out" the recordkeeping requirements of the Act. (See 29 

U.S.C. 657(g)(2).). 

79 Fed. Reg. at 47606-607 (emphasis added).5

 

4

 The other two proposed requirements on which the Supplemental NPRM solicited public 

comment 

and illnesses; [and] (2) require that any injury and illness reporting requirements established by 

 Id. at 47606. 

5

 OSHA had identified the suppressive impact of retaliation on the reporting of workrelated injuries and illnesses well before the 2016 promulgation of the cited regulation. Another 

provision of the recordkeeping regulation that was originally promulgated in 2002, section 

1904.36, 
9

The Supplemental NPRM recognized that section 11(c) provides a remedy for employees 

who have been subjected to retaliation for having reported a work-related injury or illness, but the 

Secretary did not regard the pre-existing statutory procedure to preclude promulgation of a 

 

employee for having reported a work-related injury or illness. As originally promulgated in 2002, 

section 1904.36 provided as follows: 

§ 1904.36 Prohibition against discrimination. 

Section 11(c) of the Act prohibits you from discriminating against 

an employee for reporting a work-related fatality, injury or illness. 

That provision of the Act also protects the employee who files a 

safety and health complaint, asks for access to the Part 1904 records, 

or otherwise exercises any rights afforded by the OSH Act. 

(The 2016 final rule amended section 1904.36 by changing its fi

addition to § 1904.35, section 11(c) of the Act also prohibits you from discriminating against an 

employee for reporting a work-related fatality, injury or illness. The final rule left the second 

sentence of section 1904.36 unchanged. 81 Fed. Reg. at 29671.) 

The preamble that was published in connection with the promulgation of original section 

1904.36 

Section 1904.36 of the final rule makes clear that § 11(c) of the Act 

prohibits employers from discriminating against employees for 

reporting work-related injuries and illnesses. Section 1904.36 does 

not create a new obligation on employers. Instead, it clarifies that 

the OSH Act's anti-discrimination protection applies to employees 

who seek to participate in the recordkeeping process. 

* * * * 

OSHA has also included in the final rule, in section 1904.36, a 

statement that section 11(c) of the OSH Act protects workers from 

employer retaliation for filing a complaint, reporting an injury or 

illness, seeking access to records to which they are entitled, or 

otherwise exercising their rights under the rule. This section of the 

rule does not impose any new obligations on employers or create 

new rights for employees that did not previously exist. In view of 

the evidence that retaliation against employees for reporting injuries 

is not uncommon and may be "growing" [citation to rulemaking 

record omitted], this section is intended to serve the informational 

needs of employees who might not otherwise be aware of their rights 

and to remind employers of their obligation not to discriminate. 

Occupational Injury and Illness Recording and Reporting Requirements, 66 Fed. Reg. 5916, 6050 

& 6053 (Jan. 19, 2001) (to be codified at parts 1904 and 1952). 
10

regulation (which is perforce enforceable by the issuance of a citation under section 9(a)) that 

proscribes that same retaliatory conduct. The Supplemental NPRM indicates the principal 

motivation for the proposed anti-retaliation regulation is not to redress 

but rather to advance responsibility to collect accurate injury and illness statistics: 

Section 11(c) of the Act prohibits any person from discharging 

or discriminating against any employee because that employee has 

exercised any right under the Act. (29 U.S.C. 660(c)(1).) Under 

this provision, an employee who believes he or she has been 

discriminated against may file a complaint with OSHA, and if, after 

investigation, the Secretary determines that Section 11(c) has been 

violated, then the Secretary can file suit against the employer in U.S. 

District Court seeking "all appropriate relief" including 

reinstatement and back pay. (29 U.S.C. 660(c)(2).) Taking adverse 

action against an employee who reports a fatality, injury, or illness 

is a violation of 11(c), (see 29 CFR 1904.36); therefore, much of the 

primary conduct that would be prohibited by the new provision is 

likely already proscribed by 11(c). 

The advantage of this provision is that it would provide OSHA 

with additional enforcement tools to promote the accuracy and 

integrity of the injury and illness records employers are required to 

keep under Part 1904. For example, under 11(c), OSHA may not 

act against an employer unless an employee files a complaint. 

Under the additions to the proposed rule under consideration, OSHA 

would be able to cite an employer for taking adverse action against 

an employee for reporting an injury or illness, even if the employee 

did not file a complaint. Moreover, an abatement order can be a 

more efficient tool to correct employer policies and practices than 

the injunctions authorized under 11(c). 

* * * * 

As noted above, these retaliatory actions would likely be 

actionable under 11(c), as well as under the provisions that OSHA 

is considering as amendments to 1904.35. The remedy, however, 

would be different. Under this provision, OSHA could issue 

citations to employers under Section 9 of the OSH Act for violating 

the provision, and the employer could challenge the citations before 

the Occupational Safety and Health Review Commission. The 

citations would carry civil penalties in accordance with Section 17 

of the OSH Act, as well as a requirement to abate the violation; the 

abatement could include reinstatement and back pay 
11

79 Fed. Reg. at 47607 & 47608. 

OSHA received 142 comments on the Supplemental NPRM. 81 Fed. Reg. at 29625. On 

May 12, 2016, OSHA promulgated the final rule that contained the annual electronic reporting 

provisions that had been proposed in the original NPRM (to be included in section 1904.41) 6 as 

well as the three additional requirements that had been proposed in the Supplemental NPRM, 

including the anti-retaliation provision cited here, section 1904.35(b)(1)(iv). 81 Fed. Reg. 29624. 

The preamble to the final rule reiterated the rationale and statutory authority for the antiretaliation provision that was originally expressed in the Supplemental NPRM: 

The Act's various statutory grants of authority that address 

recordkeeping provide authority for OSHA to prohibit employers 

from discouraging employee reports of injuries or illnesses. If 

employers may not discriminate against workers for reporting 

injuries or illnesses, then discrimination will not occur to deter 

workers from reporting their injuries and illnesses, and their 

employers' records and reports may be more "accurate", as required 

by sections 8 and 24 of the Act. Evidence in the administrative 

record establishes that some employers engage in practices that 

discourage injury and illness reporting, and many commenters 

provided support for OSHA's concern that the electronic 

submission requirements of this final rule and associated posting of 

data could provide additional motivation for employers to 

discourage accurate reporting of injuries and illnesses. Therefore, 

 

6

 The Secretary has recently proposed to rescind the recently promulgated requirement set 

forth in section 1904.41 for the annual electronic submission by establishments with more than 

249 employees of the information that is recorded on OSHA Forms 300 (Log of Work-Related 

Injuries and Illnesses) and 301 (Injury and Illness Incident Report). Proposed Rule, Tracking of 

Workplace Injuries and Illnesses, 83 Fed. Reg. 36494 (proposed July 30, 2018) (to be codified at 

29 C.F.R. pts. 1904 & 1952). However, this proposed rescission would not affect other electronic 

reporting requirements promulgated in the 2016 final rule that those same large employers, as well 

as certain other smaller employers, electronically submit information that is recorded on OSHA 

Form 301A (Summary of Work-Related Injuries and Illnesses). Nothing in the public notice that 

announced the proposed partial rescission of the electronic reporting requirements in section 

1904.41 suggests any backpedaling from the justifications for promulgating section 1904.35(b)(1) 

as stated in the 2016 preamble to the final rule. 
12

prohibiting employers from engaging in practices that discourage 

their employees from reporting injuries or illnesses, including 

discharging or in any manner discriminating against such 

employees, is "necessary to carry out" the recordkeeping 

requirements of the Act (see 29 U.S.C. 657(g)(2)). 

* * * * 

If employers reduce the accuracy of their injury and illness records 

by retaliating against employees who report an injury or illness, then 

OSHA's authority to collect accurate injury and illness records allows 

OSHA to proscribe such conduct even if the conduct would also be 

proscribed by section 11(c). 

81 Fed. Reg. at 29627. 

The preamble acknowledges that the conduct prohibited by § 1904.35(b)(1)(iv) of the 

final rule is already proscribed by section 11(c), not change the substantive 

obligations of employers. Notwithstanding the absence of any 

new substantive obligations, the preamble states the anti- an 

important enforcement effect an enhanced enforcement tool for ensuring the 

accuracy of employer injury and illness logs t dependent upon an employee first filing 

a complaint under section 11(c) of the Act. 81 Fed. Reg. at 29671. The preamble notes that 

or may fear additional r

Further, in response to public comments that section 1904.35(b)(1)(iv) would interfere with 

section 11(c) by infringing on an employee's right to bring a section 11(c) claim and by 

eliminating section 11(c)'s 30-day window for employees to bring complaints

stated: 

The final rule does not abrogate or interfere with the rights or 

restrictions contained in section 11(c). An employee who wishes to 

file a complaint under section 11(c) may do so within the statutory 

30-day period regardless of whether OSHA has issued, or will issue, 

a citation to the employer for violating the final rule. OSHA 
13

believes that many employees will continue to file 11(c) complaints 

because of the broader range of equitable relief and punitive 

damages available under that provision. 

Because section the Secretary is 

empowered pursuant to section 9(a) of the Act to issue a citation for its alleged violation, as was 

done here. 29 U. S. C. § 658(a) (authorizing the Secretary to issue a citation to an employer for 

violating a requirement 

Standard of Review 

The Commission has the authority to consider an enforcement challenge to the statutory 

validity of standards and regulations that the Secretary has promulgated pursuant to the Act. See

Rockwell Int'l Corp., 9 BNA OSHC 1092 (No. 12470, 1980) 

the Commission lacks authority to consider procedural challenge to occupational safety and health 

standards promulgated under § 6(b) of the Act), overruled on other grounds, George C. 

Christopher & Sons, Inc., 10 BNA OSHC 1436 (No. 76-647, 1982); see also CBI Servs., Inc., 19 

BNA OSHC 1591, 1594, n. 7 (No. 95-0489, 2001) Commission precedent does not 

substantive and procedural issues in determining whether a validity 

challenge [to a standard promulgated pursuant to sec. 6(b) of the Act] is properly before the 

Commiss

The Commission considers a challenge to a regulation in the same manner as would a 

federal court. Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 154 (1991) that 

Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory 

powers typically exercised by a court in the agency-review context . 

The two defenses at issue here amount to the functional equivalent of a challenge to the 

cited regulation under the Administrative Procedure Act (APA). See La. Forestry Ass'n Inc. v. 
14

Sec'y of Labor, 745 F.3d 653, 668-69 (3d Cir. 2014) (considering a claim that the Department of 

Labor exceeded its authority in promulgating a certain regulation in a case brought under the 

judicial review provisions of the APA). The judicial review provisions of the APA require a court 

hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law in excess of 

statutory jurisdiction, authority, or limitatio §§ 706(2)(A) 

& (C). 

Such a challenge to a regulation may be resolved through a motion for summary judgment. 

See Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (noting 

that where the 

 not about issues of fact between the question 

; Univ. Med. Ctr. of S. Nev. 

v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999) (noting that when reviewing agency action, the 

district court sits as an appellate tribunal, and the question whether [the agency] acted in an 

arbitrary and capricious manner is a legal one which the district court can resolve on the agency 

record ; La. Forestry Ass'n Inc., 745 F.3d at 667. 

The two-step framework established by Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984) (Chevron), applies to resolution of the issue of whether the Secretary 

exceeded his statutory authority in promulgating the challenged regulation. See City of Arlington 

v. FCC, 569 U.S. 290 (2013) (holding that Chevron framework applies to resolve the contention 

that an ultra vires as being outside the bounds of statutory 

authority); La. Forestry Ass'n, 745 F.3d at 669-70 (applying Chevron framework in case brought 
15

under the judicial review provisions of the APA in considering a claim that the Department of 

Labor exceeded its authority in promulgating a certain regulation). 

The Chevron framework similarly applies to a challenge to a regulation promulgated 

pursuant to a broad delegation of authority to prescribe regulations that the responsible agency 

deems to advance a specified statutory purpose. Chevron 467 U.S. at 843 44 (stating 

Congress has explicitly left a gap for the agency to fill, there is an express delegation 

of authority to the agency to elucidate a specific provision of the statute by regulation

uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or 

manifestly contrary to the statute United States v. Mead Corp., 533 U.S. 218, 226 27 (2001) 

Chevron deference 

when it appears that Congress delegated authority to the agency generally to make rules carrying 

the force of law, and that the agency interpretation claiming deference was promulgated in the 

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002) 

(applying Chevron framework to review of a rule promulgated by Secretary of Labor pursuant to 

delegated authority to 

Medical and Leave Act); Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 

57 (2011) (applying Chevron framework to the review of a rule that was promulgated pursuant to 

delegated authority to 

Internal Revenue Code). 

At the first step of the Chevron framework, a court must apply tools of statutory 

construction to n t

f the intent of Congress is clear, that is the end of the matter; for the court, as well as the 

Chevron at 842
16

843; see also City of Arlington

 

The plainness or ambiguity of statutory language is determined by reference to the 

language itself, the specific context in which that language is used, and the broader context of 

the statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). 

A court may consider purpose and its legislative history in ascertaining 

whether the statute speaks to the precise question at issue. See Chevron at 862-63 (considering 

at step one and finding it as a whole [] silent on the 

precise issue before us ; see also Arcadian Corp., 17 BNA OSHC 1345, 1348-49 (No. 93-3270, 

1995) (considering legislative history to discern congressional intent, seemingly at Chevron step 

one); but cf. United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008) that legislative 

history should not be considered at Chevron step one although ambiguous guidance 

from the Supreme Court on the issue), Geisinger Cmty. Med. Ctr. v. Sec'y H.H.S., 794 F.3d 

383, 391 n. 5 (3d Cir. 2015) (noting that the Supreme Court has often oscillated between 

considering and then refusing to consider legislative history at Step One Johnson v. 

Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1098 (D.C. Cir. 2017) (holding that employees do 

not have a private cause of action under section 11(c) of the Act, and when statutory 

text resolves the issue, as it does here, the Supreme Court has said that we need not dig into the 

legislative history ) (Kavanaugh, J.). 

Only if the statute is silent or ambiguous with respect to the specific issue,

analysis continue to step two, where 

Chevron at 843. At Chevron step two, courts 
17

administers, Michigan v. EPA, 576 U.S. , , 135 S. Ct. 2699, 2707 (2015), and 

disturb an agency rule unless it is arbitrary or capricious in substance, or manifestly contrary to 

 Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011). 

Recently, in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), the Court provided 

a fuller summary of the standard for assessing whether certain rulemaking is arbitrary and 

capricious under the APA:7

One of the basic procedural requirements of administrative 

rulemaking is that an agency must give adequate reasons for its 

decisions. 

articulate a satisfactory explanation for its action including a rational 

 Motor 

Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. 

Automobile Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation 

marks omitted). That requirement is satisfied when the agency's 

e

 Bowman Transp., Inc. v. Arkansas Best Freight 

System, Inc., 419 U.S. 281, 286 (1974). But where the agency has 

failed to provide even that minimal level of analysis, its action is 

arbitrary and capricious and so cannot carry the force of law. See 5 

U.S.C. § 706(2)(A); State Farm, supra, at 42 43. 

 

7

standard prescribed by section 6(f) of the Act is 

applicable. 29 U.S.C. § 655(f). See Nat'l Oilseed Processors Ass'n v. OSHA, 769 F.3d 1173, 1178 

(D.C. Cir. 2014) (noting that the of judicial review under section 

6(f) of demands more stringent review of OSHA rules than would the APA's arbitrary 

and capricious standard Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1466 (D.C. 

Cir. 1995) (dismissing for lack of jurisdiction an attempted pre-enforcement challenge to a 

recordkeeping regulation promulgated pursuant to section 8 of the Act that was initiated in the 

court of appeals pursuant to section 6(f) of the Act, and transferring the matter to the district court 

for APA review under 5 U.S.C. § 703). 
18

The issue to be decided at Chevron step one may be framed as 

follows: Does the Act speak directly to the question whether, in order to enhance the accuracy of 

injury and illness information reported to OSHA, the Secretary is restricted to employing the 

section 11(c) procedure to deter and thwart retaliatory action against employees for having 

reported a work-related injury or illness? 

Analysis of the text of the Act, employing traditional tools of statutory interpretation, 

shows that the Act is silent on this precise question at issue. 

OSHA's statutory authority for promulgating the anti-retaliation provision of 

§ 1904.35(b)(1)(iv) derives from recordkeeping provisions described in detail above. 29 

U.S.C. §§ 657(c)(l), 657(c)(2), 657(g)(2), 673(a), 673(e). Nothing in the text of section 11(c) 

addresses recordkeeping. Rather, section 11(c) creates employee rights and establishes the 

exclusive remedy available to employees who believe they have been retaliated against for having 

engaged in certain protected activities (of which the reporting of work-related injuries and illnesses 

is but one). Taylor v. Brighton Corp., 616 F.2d 256, 258 (6th Cir. 1980) (indicating that the class 

of persons that section 11(c) was intended to benefit are employees engaging in activity protected 

by 11(c), and holding that 11(c) does not provide employees with a private cause of action); 

Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1096 (D.C. Cir. 2017) (noting that 11(c) 

supplies a remedy for employees who believe they have been subject to retaliation

The text of section 11(c) contains no limiting language of any kind. The text does not 

"directly sp[eak] to the precise question at issue" of whether OSHA must rely on the section 11(c) 

procedure to vindicate and advance statutory interests other than the interest of employees to be 

protected from retaliation for engaging in protected activities. Chevron, 467 U.S. at 842. Rather, 
19

the text of the Act reflects that Congress did not have a specific intention . Id. at 

845; see also Montford & Co. v. SEC, 793 F.3d 76, 82 (D.C. Cir. 2015) (where text of statute does 

Chevron step one). Put another way, nothing in section 11(c) speaks to whether OSHA 

may exercise its authority to promulgate regulations that promote accurate recordkeeping where 

anti-retaliation and recordkeeping goals overlap. 

Interpreting the Act to permit the Secretary to promulgate a regulation that advances the 

accuracy of injury and illness data is consistent 

whole. See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014), quoting Univ. of Tex. 

Sw. Med. Ctr.. v. Nassar, 570 U.S. 338, 353 (2013); see also Gen. Motors Corp., Inland Div., 8 

BNA OSHC 2036, 2041 (No. 76 5033, 1980) (noting that the Commission considers the reporting 

requirements of the Act to be a cornerstone of the Act and play a crucial role in providing the 

information necessary to make workplaces safer and healthier

violations as de minimus would weaken significantly the reporting requirements of the Act and 

the Secretary's regulations

United Steelworkers, AFLCIO v. St. Joe Resources, 916 F.2d 294, 299 (5th Cir. 1990) (St. Joe Resources), which the 

Secretary cited in both the Supplemental NPRM and the preamble to the final rule as supporting 

promulgation of an anti-retaliation provision in the recordkeeping rule. 79 Fed. Reg. at 47607; 81 

Fed. Reg. at 29627 & 29672. The court in St. Joe Resources ruled that the Commission had the 

authority to order an employer to abate a violation of the medical removal protection (MRP) 

 at 29 C.F.R. § 1910.1025(k) by ordering back pay. In the 

course of reaching that conclusion, the court ruled that section 11(c) did not establish the exclusive 
20

mechanism for requiring an employer to provide back pay the court noting that employment 

concluding that the remedial purposes of [the OSH Act] would be 

undermined by a presumption of exclusivity. Id., 916 F.2d at 298, quoting Herman & MacLean 

v. Huddleston, 459 U.S. 375, 387 n. 23 (1983) (brackets in original) (holding that even though 

section 11 of the Securities Act of 1933 and section 10(b) of the Securities Exchange Act of 1934 

proscribe some of the same activity, the two provisions address different types of wrongdoing

so the section 11 remedy is not exclusive). 

contemplated and rejected making retaliation and/or discriminatory actions subject to a civil 

penalty through the issuance of an OSHA citation. (Mem. in Opposition, 6-8). The portions of 

identified by USPS do not include any material that suggests Congress 

intended the rights and remedy of section 11(c) to promote accurate recordkeeping. (Id.). The 

Sixth in Taylor v. Brighton, 

616 F.2d at 259-263, confirms that no such congressional intent is reflected in the legislative 

history. The Sixth Circuit noted that the possibility of 

retaliatory discharge might inhibit employees from reporting OSHA violations. Id. at 260, citing 

H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 27 (1970). That concern is different from a concern 

that employer retaliation against employees for having reported a work-related injury or illness 

might suppress employee reporting of the same. 

Assuming for the sake of analysis that legislative history does give rise to 

some ambiguity as to whether Congress intended to the address the precise question at issue, the 

regulation also withstands an Chevron framework. The 
21

issue to be decided at Chevron step two is whether the enforcement of section 1904.35(b)(1)(iv) 

exceeds the bounds of the permissible Barnhart 

v. Walton, 535 U.S. 212, 218 (2002), citing Chevron at 843. The regulation will be deemed to 

arbitrary or capricious in substance, as failing 

to meet the minimum requirements summarized in Encino Motorcars, LLC v. Navarro quoted 

above. The rulemaking record here far surpasses the minimum requirements articulated in Encino 

Motorcars. The preamble to the final rule reflects the Secretary having examined the relevant 

information and having provided cogent reasoning for including an anti-retaliation provision in 

the recordkeeping record as a means to promote increased accuracy of illness and injury data that 

the Act requires OSHA to collect. 

enforcement against unlawful retaliation for reporting of work-related injuries and illnesses, noting 

violation of section 11(c). (Mem. in Opposition, 8 & 15). This does not render the promulgation 

of the cited regulation arbitrar

Mayo Found. for Med. Educ. & Research v. 

United States, 562 U.S. 44, 55, (2011), quoting Smiley v. Citibank (S.D.), N. A., 517 U.S. 735, 740 

(1996). 

USPS also argues that the provisions of the Act that the Secretary cited as legal authority 

-delegation doctrine,

promulgation of the cited regulation is contrary to law. (Mem. in Opposition, 16). See Skinner v. 

Mid-Am. Pipeline Co., 490 U.S. 212, 214 (1989) (addressing non-delegation doctrine and noting 
22

standards guiding its actions such that a court could ascertain whether the will of Congress has 

been obeyed, no delegation of legislative authority trenching on the principle of separation of 

on-delegation doctrine, 

provisions of this Act,' we have held that the validity of a regulation promulgated thereunder will 

 

Mourning v. Family Publ Serv., Inc., 411 U.S. 356, 369 (1973); see also Thermal Reduction 

Corp., 12 BNA OSHC 1264, 1266 (No. 81-2135, 1985) (citing Mourning for this proposition, and 

observing that the recordkeeping regulations requiring employers to maintain injury and illness 

records and to produce those records to the Secretary during an inspection reasonably effectuates 

Congress's requirement that employers maintain and make available to the Secretary records 

pertaining to the incidence of injuries and illnesses in the workplace consistent with the 

Act). The preamble to the final rule more than amply establishes that the anti-retaliation regulation 

provide and that OSHA 

collect accurate injury and illness data. 

Enforcement of the anti-retaliation regulation is not rendered arbitrary and capricious 

simply because there could be parallel section 11(c) and section 9(a) proceedings involving the 

same alleged retaliatory act. To the extent that the Secretary may seek back-pay and similar relief 

in an order of abatement in a section 9(a) proceeding enforcing the anti-retaliation regulation, 

 in a parallel section 11(c) 

proceeding. Similarly, one of the parallel proceedings could be stayed to conserve resources and 

potentially to permit application of issue or claim preclusion principles to the stayed proceeding. 
23

In its memorandum in opposition to the motion, USPS points to discovery requests that 

were filed in a different proceeding before the Commission that also involves an alleged violation 

of section 1904.35(b)(1)(iv), which USPS argues would be irrelevant in a section 11(c) proceeding. 

The USPS seems to suggest that such discovery requests show that the cited regulation is both 

ultra vires and arbitrary and capricious. (Mem. in Opposition, 10-13). To the extent a litigant 

regards a discovery request in a particular matter to be outside the scope of permissible discovery, 

unduly onerous, disproportionate, or otherwise objectionable, such arguments are best addressed 

and resolved in the context of an appropriate discovery motion filed in a particular case, where 

such a discovery dispute would be concrete and ripe. This argument is not material to whether the 

cited regulation is ultra vires or arbitrary and capricious. 

Enforcement of section 1904.35(b)(1)(iv) pursuant to section 9(a) of the Act is well within 

the bounds of permissible construction of the Act and is neither arbitrary nor capricious. This 

permissible interpretation of the Act is due controlling weight under Chevron, inasmuch as the 

anti-retaliation regulation was promulgated pursuant to express delegations of 

authority to the Secretary (a) to promulgate regulations necessary or appropriate for the 

enforcement of this [Act] or for developing information regarding the causes and prevention of 

occupational accidents in section 8(c)(1), (b prescribe regulations requiring employers to 

maintain accurate records of work-related deaths, injuries and illnesses in section 8(c)(2), and 

(c) [Act]

in section 8(g)(2). Chevron at 843-44. 

GRANTED, and that defense is ordered STRICKEN from the answer. 
24

For the same reasons described in connection with the Chevron step two analysis 

arbitrary and 

affirmative defense set forth in paragraph 8 of the answe

section, is GRANTED, and that defense is ordered STRICKEN from the answer. See Judulang v. 

Holder, 565 U.S. 42, 53 n. 7 (2011) (indicating that the analysis under Chevron step two is 

substantially the same as the analysis under 

U.S.C. § 706(2)(A)). 

SO ORDERED. 

 

 /s/ 

 WILLIAM S. COLEMAN 

 Administrative Law Judge 

DATED: December 27, 2018