UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

__________________________________________

)

Secretary of Labor, )

)

Complainant, )

)

v. )

) OSHRC Docket No.

) 13-0224

)

A.H. Sturgill Roofing, Inc., ) 

)

Respondent. )

)

__________________________________________)

BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION OF 

HOME BUILDERS OF THE UNITED STATES IN SUPPORT OF 

RESPONDENT, A.H. STURGILL ROOFING, INC.

Bradford T. Hammock

Tressi L. Cordaro

JACKSON LEWIS P.C.

10701 Parkridge Blvd., Suite 300

Reston, VA 20191

Tel: (703) 483-8300

Fax: (703) 483-8301

HammockB@jacksonlewis.com

Tressi.cordaro@jacksonlewis.com

Attorneys for Amicus Curiae

National Association of Home Builders of the United States
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

I. The National Association of Home Builders of the United States ......................................1

A. NAHB is the Leading Industry Trade Association of the Residential 

Home Building Industry ..........................................................................................1

B. NAHB Members are Directly and Significantly Impacted by the 

Decision on Review .................................................................................................2

C. NAHB has Developed Guidance Material on Heat Stress.......................................2

D. NAHB’s Experience and History with the Issues Involved in this Matter 

will Assist the Commission’s Consideration of the Case ........................................4

II. Summary of Argument ........................................................................................................4

III. Decision on Review .............................................................................................................6

IV. Argument .............................................................................................................................8

A. The Commission Must Hold the Secretary to a Strict Burden of Proof 

Under the General Duty Clause ...............................................................................8

B. The Judge’s Determination of the Heat “Hazard” was Flawed .............................10

1. The Judge Miscalculated the Heat Index in Two Respects .......................11

2. Sturgill and the Regulated Community Lack Notice of When A 

Heat Hazard Exists.....................................................................................14

C. The NRCA Guidance Material on its Own is Insufficient to 

Demonstrate Industry Recognition ........................................................................19

D. The Judge Failed to Find that the Abatement Methods would Eliminate 

or Materially Reduce the Hazard ...........................................................................23

V. Conclusion .........................................................................................................................27
ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Aldridge Electric, 

2016 OSAHRC LEXIS 62, 26 OSHC (BNA) 1449 (No. 13-2119, 2016) ..................13, 17

Arcadian Corp., 

2004 OSAHRC LEXIS 85, 20 BNA OSHC 2001 (No. 93-0628, 2004).....................10, 22

Beverly Enterprises, Inc., 

2000 OSAHRC LEXIS 121, 19 OSHC (BNA) 1161 (Nos. 91-3144, 92-238, 

92-819, 92-1257, 93-724, 2000) ..................................................................................22, 26

Industrial Glass, 

1992 OSAHRC LEXIS 34, 15 OSHC (BNA) 1594 (No. 88-348, 1992) .............. 10, 17-18

Nat’l Realty & Constr. Co. v. OSHRC, 

489 F.2d 1257 (D.C. Cir. 1973).........................................................................................10

Otis Elevator Co.,

2007 OSAHRC LEXIS 77, 21 OSHC (BNA) 2204 (No. 03-1344, 2007) ........................14

Post Buckley Schuh & Jernigan, Inc., 

2012 OSAHRC LEXIS 20, 24 OSHC (BNA) 1155 (No. 10-2587, 2012) ........................17

Secretary of Labor v. Pepperidge Farm, Inc., 

1997 OSAHRC LEXIS 40, 17 OSHC (BNA) 1993 (No. 89-265, 1997) ....................25, 26

United States Postal Service, 

2014 OSAHRC LEXIS 63, 25 OSHC (BNA) 1116 (No. 13-0217, 2014) ........................17

Statutes & Other Authorities:

29 U.S.C. § 654(a)(1).................................................................................................................9, 10

29 C.F.R. § 1926.21(b)(2)................................................................................................................6

Cal. Code Regs., tit. 8, § 3395(h)(1)(A) ........................................................................................19

Cal. Code Regs., tit.8, § 3395 ........................................................................................................16

Cal. Code Regs., tit.8, § 3395(b)....................................................................................................16

H. Res. 1218, H.R. Debate, Sept. 22, 1970, reprinted in LEGISLATIVE HISTORY OF THE 

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (1971) ................................................9

OSHA Act § 5(a)(1), 29 U.S.C. § 654(a)(1)....................................................................................2

Randy S. Rabinowitz, Occupational Safety and Health Law (2d Ed. 2000)............................... 8-9
iii

S. Rep. No. 91-1282 (1970), reprinted in LEGISLATIVE HISTORY OF THE 

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (1971) ................................................9

Senate Debate, Nov. 16, 1970, reprinted in LEGISLATIVE HISTORY OF THE 

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (1971).................................................9

WAC 296-62-09510..................................................................................................................... 16

WAC 296-62-09560(1)(b) ............................................................................................................ 19
I. The National Association of Home Builders of the United States

The National Association of Home Builders of the United States (“NAHB”) submits its 

brief on review, as amicus curiae, in support of the position of Respondent, A.H. Sturgill Roofing, 

Inc. Good cause exists for NAHB to participate as amicus curiae in this matter.

A. NAHB is the Leading Industry Trade Association of the Residential Home Building 

Industry.

Founded in 1942, NAHB represents more than 140,000 members involved in home 

building, remodeling, multifamily construction, property management, specialty trade contractor, 

design, housing finance, building products manufacturing, and all other aspects of the residential 

and light commercial construction industries. See https://www.nahb.org/en/about-nahb.aspx (last 

visited May 13, 2018) for a full description of NAHB, its mission, and its membership. NAHB 

is affiliated with more than 700 state and local home builders associations located in all 50 states 

and Puerto Rico. NAHB’s members touch on all aspects of the residential construction industry.

About one-third of NAHB’s members are home builders and/or remodelers. The others 

are associates working in closely-related specialties such as sales and marketing, housing finance, 

and manufacturing building materials. Currently, the residential construction sector employs over 

2 million people and NAHB’s builder members will construct approximately 80 percent of the 

new housing units projected in the next 12 months.

The more than 14,000 members that belong to NAHB’s Remodelers Council comprise 

about one-fifth of all firms that specify remodeling as a primary or secondary business activity.

The NAHB Multifamily Council is comprised of more than 1,000 builders, developers, owners, 

and property managers of all sizes and types of multifamily housing, comprising condominiums 

and rental apartments. NAHB is a non-profit national trade association incorporated in the State 

of Nevada with headquarters located in Washington, D.C.
2

B. NAHB Members are Directly and Significantly Impacted by the Decision on 

Review.

NAHB members are significantly impacted by this case. Residential home building work 

is performed outside in a wide variety of work environments, including those where the 

temperature and heat index ranges involved in this case are present. For several months throughout 

the year, home builders – particularly in the southern and western parts of the United States – work 

outside and in hot conditions.

Throughout the course of the day, home builders can experience a range of temperatures 

and in a variety of conditions. At times during the home construction process, there may be shade 

conditions in the general work environment, but none provided by the house structure itself. As 

the home building process moves from setting the foundation to framing, shade may be created by 

the house itself. Even after the house is built, employees may still be required to work on the roof 

of the house or outside in hot conditions. Home building involves work outside in heat.

The decision on review before the Occupational Safety and Health Review Commission 

(“Commission”) presents key issues regarding how the Occupational Safety and Health 

Administration (“OSHA”) applies Section 5(a)(1) of the Occupational Safety and Health Act of 

1970 (“OSHA Act” or “Act”), commonly referred to as the General Duty Clause, in the context of 

purported heat hazards. Given the extent to which NAHB members perform work outside, the 

decision of the Commission will have a significant impact on NAHB’s members.

C. NAHB has Developed Guidance Material on Heat Stress.

One of the key issues involved in the decision on review relates to industry-developed 

guidance material. The Administrative Law Judge in this case relied on guidance material 

produced by the National Roofing Contractors Association (“NRCA”) to find that the roofing 

industry recognized “heat as a hazard for employees engaged in roofing work.” Secretary of Labor 
3

v. A.H. Sturgill Roofing (“Sturgill Roofing”), Slip. Op., p. 12. The Judge referenced an NRCA 

pocket guide discussing heat hazards, along with two tool box talks entitled “Heat Stress” and 

“Weather-Personal Injury.” Id. Based on this material, the Judge found that the entire roofing 

industry recognized heat as a hazard. Id.

Like NRCA, NAHB develops important safety and health guidance material for its 

members. This guidance material can take the form of video training, webinars, and written 

documentation. Trade associations play an important role in protecting the safety and health of 

employees by developing key information in a user-friendly format for employer and employee 

use.

NAHB also has developed training material on the hazards of working in hot conditions. 

See https://www.nahb.org/en/research/safety/video-toolbox-talks/heat-stress.aspx (last visited 

May 13, 2018). NAHB has put forth a one-page fact sheet entitled “Heat Stress Safety.” It lists 

certain common heat stress hazards and ways to avoid heat stress. It is not meant to be a full and 

comprehensive guide to working in the heat, but is designed to provide useful information to 

employers and employees in a user-friendly manner. It is provided in English and Spanish.

NAHB has also produced a short video on working in the heat. As with the one-page fact 

sheet, the video is designed to provide key information on protecting employees from heat hazards 

in a user-friendly format.

How the Commission views the guidance material put forth by organizations such as 

NAHB or NRCA regarding industry recognition will impact NAHB’s activities significantly in 

this area, and thus impact the safety and health of employee members. NAHB has a strong interest 

in assisting the Commission in understanding the impact that the decision on review may have 

with respect to its own development of safety and health guidance material.
4

D. NAHB’s Experience and History with the Issues Involved in this Matter will Assist 

the Commission’s Consideration of the Case.

NAHB’s submission of a brief in this matter will assist the Commission in assessing the 

impact of the General Duty Clause regarding working in heat in an environment significantly 

impacted by outside working conditions. Neither party can speak to the range of exposures, work 

environments, and conditions that exist on a typical residential home building site. Respondent 

can speak to its experience performing roofing work, but that does not address the variety of 

conditions that otherwise exist on a daily basis on home building sites throughout the country.

NAHB will provide the Commission a practical view of the impact of the decision on home 

builders across the United States, something that the parties cannot address. If left standing, this 

decision will have significant, negative consequences for home builders, potentially subjecting 

them to large penalties and citations whenever their employees work in any hot conditions, 

regardless of whatever actions they may have taken to protect employees from getting ill on the 

job site.

II. Summary of Argument

The decision on review has expanded the application of the General Duty Clause with 

respect to working in hot conditions in such a manner as to potentially subject any employer with 

employees working outside in hot weather to a citation. In several ways, the decision essentially 

eliminates the need for the Secretary to prove key elements of a General Duty Clause citation.

First, the Judge’s calculation of heat and the conclusion of the existence of a heat hazard 

are not supported. Through a series of assumptions and back-of-the-envelope math, the Judge 

essentially “created” a heat hazard at the worksite at issue. Even though there was no heat advisory 

issued on the day of the accident, the Respondent employer was expected to make the same – or 

similar – calculations of the heat that the Judge made and implement a panoply of measures based 
5

upon those calculations. Under the Judge’s decision, any time that the temperature is 

approximately 80 degrees and work is performed – even if just momentarily – in direct sunlight, a 

hazard is established under the General Duty Clause. This eliminates the need for the Secretary to 

prove a hazard at all and is inconsistent with another recent decision by Chief Judge Covette 

Rooney, whereby she examined multiple criteria to determine the presence of a heat hazard.

Second, the Judge’s finding of industry recognition of the hazard in the case based solely 

on three NRCA guidance documents reads the “recognition” criteria out of the General Duty 

Clause altogether. While it is true that industry guidance material can be used as the basis for 

establishing industry recognition, the Judge expands that principle to the extreme. In effect, the 

Judge states that because NRCA provided informational material indicating heat can be a hazard, 

the industry has recognized that heat is a hazard in virtually all conditions in virtually all roofing 

environments. But that type of analysis should not be conclusive under the General Duty Clause. 

Recognition in the area of heat illness requires consideration of the specific circumstances at issue 

in the case. Under the lens of the NRCA materials, the environment at issue in this case does not 

qualify as a recognized hazard.

Third, the decision appears to eliminate the requirement that feasible means of abatement 

must be proven to eliminate or materially reduce a hazard. In contrast to previous significant cases 

examining the General Duty Clause where abatement takes the form of a process approach, the 

Judge simply made findings that there were other steps that the Respondent could have taken to 

protect employees from heat and those steps could have been implemented. The Judge made no 

affirmative finding that those steps would “eliminate” or “materially reduce” the hazard. There is 

always more that an employer can do to address hazards of working in hot conditions. That, in 

itself, cannot be the test of whether feasible means of abatement exist in the context of heat stress. 

The Secretary must show, and the Judge must find, that each proposed abatement would eliminate 
6

or materially reduce the hazard. The Judge made no such finding here.

The combination of the above has eviscerated any meaning to the General Duty Clause. It 

would cause home builders to be subject to a citation by OSHA whenever home building work is 

performed in the heat at all. Congress did not intend for the General Duty Clause to have such a 

broad, vague, and ambiguous application.

III. Decision on Review

In Sturgill Roofing, a roofing contractor was cited by OSHA for (1) a violation of the 

General Duty Clause for allegedly failing to protect its employees from heat-related hazards, and 

(2) a violation of 29 C.F.R. § 1926.21(b)(2) for allegedly failing to adequately train employees on 

heat-related hazards. Slip. Op., p. 1.

The citations stemmed from a workplace fatality that occurred during a roofing job in 

Miamisburg, Ohio. Id. at 2, 6. An employee was working on the jobsite and became ill, allegedly 

due to heat. Id. at 13-16. The project involved work on a flat, white roof, with shaded areas on 

the roof provided by stacks of material and large air conditioning units. Id. at 2-3. The air 

conditioning units also provided a jet of cold air. Id. at 3. On the ground surrounding the building

were shaded areas with benches. Id. Employees could also avail themselves of an air conditioned 

resting area inside the building. Id.

On the day of the incident, temperatures in the morning ranged from 72-83 degrees. Id.

Temperatures were predicted to reach approximately 89 degrees. Id. at 2. Much of the work was 

performed in the morning, starting around 6 a.m., before the sun reached its peak. Id. at 3-4. At 

10:53 a.m., the temperature was 83°F with 55% relative humidity, resulting in a Heat Index value 

of 85°F. Id. at 10.

In addition to the shaded and break areas made available to employees, the employer in the 

case provided water and ice for employees. Id. at 7. There were three set breaks, but employees 
7

could take a break at any time “without retribution.” Id. Sturgill had also provided training to its 

permanent employees regarding heat-related hazards and how to prevent heat-related illness. Id.

at 6.

The employee that became fatally ill was a 60-year old temporary employee who had 

performed roofing work in the past, but had most recently been assigned to an indoor, air 

conditioned job. Id. at 16. Sturgill had monitored the employee throughout the day and had 

specifically encouraged him to drink fluids and take breaks when needed. Id. at 5. The record 

does not show that any other employees experienced heat-related illness on the day in question.

In her decision, the Judge concluded that Sturgill’s employees “were exposed to heatrelated illness hazards” during their work on the roof in question. Id. at 10. In making this 

conclusion, the Judge added 15 degrees to the National Weather Service (“NWS”) Heat Index, 

which was in the “caution” category based upon the temperature and relative humidity that existed 

at the time that the employee collapsed at the worksite. Id. She did so based upon a finding at the 

time that the employee was working in direct sunlight. Id.

The Judge then concluded that both Sturgill and the roofing industry recognized “heat” as 

a hazard for employees engaged in roofing work. Id. at 12. With respect to industry recognition, 

the Judge described three NRCA guidance products that existed and that Sturgill had used as part 

of its training program. Id. The Judge never explained how the NRCA material directly addressed 

the specific heat conditions at issue on the roofing job on the day of the accident.

After concluding that the heat hazard was likely to cause death or serious physical harm, 

the Judge concluded that feasible and effective means existed to eliminate or materially reduce the 

hazard. Id. at 16. The bases for the Judge’s conclusion was her finding that Sturgill’s existing 

heat-illness program was “inadequate,” and that there were other forms of abatement that Sturgill 

could have undertaken to help address heat on the worksite. Id. at 16-21. The Judge never made 
8

any specific findings that each particular abatement would “eliminate” or “materially reduce” the 

hazard and the Secretary did not present expert testimony regarding the same. See id.

Respondent petitioned for review of the decision and the Commission requested briefing 

on any of the issues raised in the Petition, and in particular on the following two issues:

 Whether an employer’s knowledge or lack of knowledge of its employees’ 

underlying health conditions or ages, and any legal restrictions upon the 

employer in obtaining such information, are relevant to the Secretary’s burden 

to establish a violation of the general duty clause in this case.

 Whether the judge miscalculated the heat index on the day in question and, if 

so, whether the Secretary established the existence of a hazard even if the heat 

index remained in the lowest “caution” quadrant.

See Commission Briefing Notice.

IV. Argument

A. The Commission Must Hold the Secretary to a Strict Burden of Proof Under the 

General Duty Clause.

This case presents an important issue for the Commission relating to the Secretary’s 

reliance on the General Duty Clause to issue citations to employers in the area of heat illness in 

the absence of a standard and without holding the Secretary to an exacting burden of proof. By 

doing so, this case demonstrates the worst fears of those in Congress in promulgating the OSH Act 

that the General Duty Clause would become a “gotcha” tool used by the Secretary to issue citations 

against employers without providing sufficient notice of the expected standard of conduct and how 

to avoid the hazards.

In the legislative history of the OSH Act, the General Duty Clause was one of the most 

“controversial provisions.” Randy S. Rabinowitz, Occupational Safety and Health Law, p. 35 (2d 
9

Ed. 2000). While there was general agreement within Congress that OSHA could not be expected 

to issue specific standards related to each and every hazard at all worksites across the country and 

that a general provision requiring safe employment was needed to be included in the Act, 

agreement on the exact parameters of the General Duty Clause was complicated. Id.

The concept of the General Duty Clause was urged by the National Safety Council, which 

stated in testimony:

If national policy finally declares that all employees are entitled to safe and 

healthful working conditions, then all employers would be obligated to provide a 

safe and healthful workplace rather than only complying with a set of promulgated 

standards. The absence of such a general obligation provision would mean the 

absence of authority to cope with a hazardous condition which is obvious and 

admitted by all concerned for which no standard has been promulgated.

S. Rep. No. 91-1282, at 10 (1970), reprinted in LEGISLATIVE HISTORY OF THE OCCUPATIONAL 

SAFETY AND HEALTH ACT OF 1970, at 150 (1971). As set forth in this testimony, the concept of 

the General Duty Clause is well supported. However, it is the emphasis on “obvious” that caused 

grave concern with stakeholders. In particular, there were criticisms raised of various forms of the 

General Duty Clause that it could impose “too vague and sweeping a duty on employers” and 

could ultimately prove “unenforceable.” Senate Debate, Nov. 16, 1970, reprinted in LEGISLATIVE 

HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, at 416 (1971); H. Res. 1218, 

H.R. Debate, Sept. 22, 1970, reprinted in LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY 

AND HEALTH ACT OF 1970, at 982 (1971).

The concerns raised were real and significant and led Congress to add further constraints 

on the General Duty Clause to limit its application to “recognized,” “serious,” “hazards.” 29 

U.S.C. § 654(a)(1). Congress intended the provision to be narrowly construed so as to ensure that 
10

employers were not faced with civil penalties for hazards which were not “obvious” and 

compliance expectations clear and achievable. See Nat’l Realty & Constr. Co. v. OSHRC, 489 

F.2d 1257, 1260-61 (D.C. Cir. 1973) (“Congress quite clearly did not intend the general duty clause 

to impose strict liability: The duty was to be an achievable one.”); Industrial Glass, 1992 

OSAHRC LEXIS 34, *36, 15 OSHC (BNA) 1594 (No. 88-348, 1992) (“We note that Congress 

intended that an employer’s duty to free its workplace of hazards under section 5(a)(1) to be an 

achievable one.”)

Congress was concerned that OSHA would use the General Duty Clause as an unfair tool 

in its enforcement toolbox, citing employers for not taking actions to address vague, ambiguous 

hazards. It is that intent that underscores the Commission’s past practice of holding the Secretary 

strictly accountable to proving each element of the General Duty Clause: (1) that a hazard exists; 

(2) that the hazard was recognized by the employer or the employer’s industry; (3) that exposure 

to the hazard would result in serious harm; and (4) that feasible means of abatement exist that 

would eliminate or materially reduce the hazard. 29 U.S.C. § 654(a)(1); Arcadian Corp., 2004 

OSAHRC LEXIS 85, *19, 20 BNA OSHC 2001 (No. 93-0628, 2004).

This is particularly important in areas such as heat stress, where the hazard is ill-defined 

and the abatement methods involve a process or programmatic approach. Failing to hold the 

Secretary to those exacting standards opens up Congress’s worst fears about the application of the 

General Duty Clause.

B. The Judge’s Determination of the Heat “Hazard” was Flawed.

The Commission has asked whether the Judge miscalculated the Heat Index on the day in 

question. For the reasons discussed below, the short answer to this question is “yes.” The Judge 

miscalculated the Heat Index on the day in question and inappropriately inflated the Heat Index, 

undermining the remaining analysis in the Judge’s decision. 
11

1. The Judge Miscalculated the Heat Index in Two Respects.

In the absence of a specific standard regulating heat exposure and heat related illnesses, 

OSHA advises employers to rely on the NWS Heat Index to assist in determining whether 

employees are exposed to a hazard from heat while working outdoors. See Brief for the Secretary 

of Labor, p. 10. The Heat Index “is a measure of how hot it really feels when relative humidity is 

factored in with the actual air temperature.” National Weather Service Heat Index, 

https://www.weather.gov/media/unr/heatindex.pdf, (last visited May 8, 2018). The NWS Heat 

Index has an annotation that states, “exposure to full sunshine can increase heat index values by 

up to 15°F.” Id. (emphasis added).

In Sturgill, the Judge miscalculated the Heat Index in two respects. First, the Judge 

incorrectly found that “adding 15°F for working in direct sunlight (i.e. 98°F) increased the heat 

index category from ‘caution’ to ‘danger.’” Slip. Op., p. 10. Simply put, the Judge added the 15°F 

to the air temperature rather than the Heat Index value resulting in an overinflated Heat Index on 

the day in question. According to the Judge, the air temperature on the day at 10:53 a.m. was 83°F. 

Id. Using this air temperature, the Judge then added the 15°F to adjust for working in direct 

sunlight – resulting in 98°F. Id. Using the Heat Index chart with an air temperature of 98°F and 

a relative humidity of 55%, the Heat Index category was incorrectly classified as “danger.” Id.

The Heat Index values (the value calculated using the air temperature and the relative 

humidity) are referred to in terms of Fahrenheit. It appears the Judge assumed the 15°F was meant 

to be added to the air temperature, rather than the Heat Index itself. The NWS Heat Index chart 

specifically states, “exposure to full sunshine can increase heat index values by up to 15°F.” 

National Weather Service Heat Index, https://www.weather.gov/media/unr/heatindex.pdf, (last 

visited May 8, 2018). The addition of up to 15°F should be added to the values contained in the 

chart, not to the air temperature.
12

The Secretary admits as much in his brief on review by noting “direct sunshine can increase 

heat index values up to 15 degrees, from a heat index value of 85 to 100.” Brief for the Secretary 

of Labor, pp 10-11. While this part of the calculation is true, the Secretary then incorrectly claims 

that the resulting category is elevated from “caution” to “danger.” Id. Rather, based on the NWS 

chart, a Heat Index value of 100°F is in the “extreme caution” category not the “danger” category.1

This error, by both the Secretary and the Judge is pervasive. Several times the Judge

supports the decision by referencing the “danger” category that the employees were working in. 

See, e.g., Slip. Op., p. 11 (“It is also not reasonable to only implement a heat-related safety plan at 

the “danger” level on the NWS chart.”); pp. 11-12 (“Calculation of the heat index that morning for 

employees working in direct sunlight, increased the heat index category to danger.”). As explained 

above, these are simply incorrect and unsupported findings, which undermine the Judge’s 

conclusion that a hazard existed. 

The second respect in which the Judge miscalculated the Heat Index was by adding the full 

value of the 15 degrees. The Index notes that “exposure to full sunshine can increase heat index 

values by up to 15°F.” National Weather Service Heat Index, 

https://www.weather.gov/media/unr/heatindex.pdf, (last visited May 8, 2018) (emphasis added). 

The Judge assumed, without any supporting evidence, that the day in question resulted in adding 

the full 15 degrees to the Heat Index values. As Respondent explains in its brief on review, “The 

ALJ abused her discretion by applying the maximum temperature increase without any authority 

supporting her unilateral decision to do so.” Respondent A.H. Sturgill Roofing, Inc.’s Opening 

 

1

In his brief, the Secretary asserts yet another application of the Heat Index chart, by adding an 

additional ten degrees to the air temperature, based upon testimony from Respondent’s foreman 

that the temperature on the roof was “about” ten degrees hotter. Brief for the Secretary of Labor 

Secretary, p. 11. This third interpretation of the Heat Index chart just further “muddies the water” 

as to the actual application of the Heat Index chart and provides further evidence of the ambiguity 

and lack of notice to employers on the Agency’s expectations for compliance in this area.
13

Brief on Review, p. 19. 

No expert opined on why a full increase of 15 degrees was warranted or whether the value 

may have only increased by 5 degrees or 8 degrees or even 12 degrees. The Judge arbitrarily 

increased the value by a full 15 degrees despite the NWS chart’s clear notation that “full sunshine 

can” but does not automatically, increase the value and that the increase is “by up to 15°F.” The 

phrase “up to” is instructive. As applied by the Judge, the notation would simply read “full 

sunshine does increase Heat Index values by 15°F.”

In contrast to this case, in Aldridge Electric, a case decided by Chief Judge Covette Rooney, 

Judge Rooney dismissed claims by the Secretary to adjust the heat index because “the Secretary 

has not proven how and by how much the index value should be adjusted.” Aldridge Electric, 

2016 OSAHRC LEXIS 62, *83, 26 OSHC (BNA) 1449 (No. 13-2119, 2016). In Aldridge Electric, 

various experts testified about how the heat index should be adjusted (see id. at *72-84), yet here, 

no expert opined on the adjustment of the heat index. The Judge simply added 15 degrees without 

any supporting evidence. In contrast to the decision here, the Judge’s analysis in Aldridge Electric

takes the Secretary to task in establishing the existence of a hazard as contemplated by Congress

when addressing the existence of a hazard.

Since the Judge incorrectly calculated the Heat Index value by arbitrarily adding the full

15 degrees directly to the air temperature, the finding of a hazard is unsupported. These errors 

significantly impact the Judge’s remaining analysis and undermine the determination that an 

“excessive heat” hazard existed. 
14

2. Sturgill and the Regulated Community Lack Notice of When A Heat Hazard 

Exists.

With respect to the General Duty Clause, “[t]he Secretary must define the cited hazard in 

a manner that gives the employer fair notice of its obligations under the Act by specifying 

conditions or practices over which the employer can reasonably be expected to exercise control.” 

Otis Elevator Co., 2007 OSAHRC LEXIS 77, *6, 21 OSHC (BNA) 2204 (No. 03-1344, 2007) 

(internal citation omitted). The Judge’s decision analyzed facts and criteria for determining 

whether a heat hazard existed that the regulated community, Sturgill, NAHB and others have never 

been put on notice as needing to analyze in their work environments. Since OSHA has not 

developed specific standards regulating this hazard, OSHA has provided guidance on its website 

and through its annual heat-illness campaign. To say that the guidance in this area is vague and 

muddled is an understatement. 

In its guidance, OSHA urges employers to rely on the Heat Index, but without the 

adjustments applied by the Judge. For example, OSHA’s Heat Illness Mobile Application

(“Mobile App”) for employers uses the NWS Heat Index and never accounts for other conditions 

such as shade, wind, or physical exertion. See OSHA Heat Safety Tool,

https://www.osha.gov/SLTC/heatillness/heat_index/heat_app.html, (last visited May 8, 2018). Nor 

does the Mobile App take into account the NWS reference that working in “full sunshine” can add 

up to 15 degrees to the Heat Index values. Id. The Mobile App requires that the individual enter 

a location and then the App calculates the threat level and Heat Index gauge, all based solely on 

the location and no other factors, such as wind, shade, direct sunlight, clouds, etc. So in short, 

according to the Judge, even an employer who relies on OSHA’s own Mobile App as a heat safety 

tool would be misguided to do so and could possibly be subject to citation by OSHA. 

If the Mobile App recommended by OSHA is inappropriate to rely on in determining 
15

whether a hazard exists, what else is the regulated community supposed to rely on? What are the 

factors each employer must, not should, consider in assessing exposure to heat-illness? Even 

within OSHA this seems to be a moving target.

A Regional Emphasis Program for Heat Illness was established in 2015 for Region VI 

covering Arkansas, Louisiana, Texas, Oklahoma, and parts of New Mexico under federal 

jurisdiction. OSHA Regional Emphasis Program for Heat Illness, CPL 2 02-00-027, October 1, 

2015, https://www.osha.gov/dep/leps/RegionVI/reg6_fy2016_heat_CPL2_02-00-027.pdf (last 

visited May 8, 2018). This emphasis program focuses on heat advisories issued by various NWS 

offices within Region VI. While OSHA might say this is not guidance to the regulated community 

but to its internal staff, the point remains that what triggers excessive heat and when OSHA expects 

employers to implement precautions seems to vary even within OSHA.

The ambiguity is more troubling when considering the recommendations of other OSHA 

State Plan states. As with Federal OSHA, outdoor heat hazards are generally not regulated by 

specific standards in the majority of State Plan states. Some states take a similar approach as 

Federal OSHA and issue alerts, guidance, and engage in active heat-illness campaigns. But some

State Plan states have adopted specific standards regulating outdoor heat hazards, such as the 

California Department of Industrial Relations, Division of Occupational Safety and Health 

(“Cal/OSHA”) and Washington State Department of Labor & Industries, Division of Occupational 

Safety and Health (“DOSH”). 

The approaches taken by those states that have adopted specific requirements regulating 

outdoor heat hazards, while not perfect, illustrate the need for clarity in approach so that employers 

can adequately assess, determine, and protect employees against potential heat-related hazards. 

Without such clarity, employers are left to question whether they can rely on the Heat Index, or 

according to the Judge’s decision here, rely on the Heat Index but then assess a multitude of other 
16

factors, such as wind, clouds, physical exertion, and possibly the health of the employee in 

determining the existence of a hazard.

Recognizing the need for simplicity in assessing when outdoor heat may become a hazard, 

the Cal-OSHA standard relies solely on outdoor temperature to trigger various requirements under 

the standard. Cal. Code Regs., tit.8, §3395. The standard defines temperature as “the dry bulb 

temperature in degrees Fahrenheit obtainable by using a thermometer to measure the outdoor 

temperature in an area where there is no shade. While the temperature measurement must be taken 

in an area with full sunlight, the bulb or sensor of the thermometer should be shielded while taking 

the measurement, e.g., with the hand or some other object, from direct contact by sunlight.” Id. at 

§3395(b). Cal-OSHA recommends that “[t]he supervisor should use a thermometer to keep track 

of the temperature at the work site on hot days. A simple thermometer available at hardware stores 

can be used to measure the outdoor (‘dry bulb’) temperature, as long as it is taken in an area where 

there is no shade.” Heat Illness Prevention Enforcement Q&A, updated May 14, 2015, 

https://www.dir.ca.gov/dosh/heatillnessQA.html (last visited May 8, 2018).

Further, DOSH’s heat-illness standard in Washington State also relies on air temperature 

and establishes “temperature action levels.” WAC 296-62-09510. If A.H. Sturgill Roofing, Inc.

was an employer in Washington State and was conducting the same work at 83°F the morning of 

the accident, no violation would have existed under the DOSH standard. 

Specifically, DOSH has three “outdoor temperature action levels” based on the type of 

clothing worn by employees (not based on the color of clothing as the Judge analyzed here). Id. 

For non-breathing clothes such as vapor barrier clothing or personal protective equipment such as 

chemical resistant suits the temperature action level is 52°F, for double-layer woven clothes 

including coveralls, jackets and sweatshirts the temperature action level is 77°F, and for all other 

clothing the temperature action level is 89°F. Id.
17

So while the Judge found a hazard would exist based on a plethora of vague and ambiguous 

factors in this case, none of which the regulated community has been provided notice of from 

OSHA, that same hazard under the exact same conditions in another state would not exist. And 

contrary to the Judge’s assertion that “it is not reasonable for a roofing employer to rely solely on 

the generic NWS heat index to determine if a heat hazard exists at its worksite,” the National 

Institute for Occupational Safety and Health’s (“NIOSH”) own recommendations for employers 

is to rely solely on the NWS heat index because “the simplicity of the heat index makes it a good 

option for many outdoor work environments.” OSHA-NIOSH Heat Tool App, 

https://www.cdc.gov/niosh/topics/heatstress/heatapp.html (last visited on May 2, 2018). 

When this decision is viewed in context of other ALJ and Commission decisions addressing 

“excessive heat” under the General Duty Clause, the guidance to the regulated community is 

further muddled. In one case, the air temperatures coupled with the symptoms of a heat stroke 

were enough to find a hazard existed. See Post Buckley Schuh & Jernigan, Inc., 2012 OSAHRC 

LEXIS 20, *16-19, 24 OSHC (BNA) 1155 (No. 10-2587, 2012). In Aldridge Electric, Chief Judge 

Rooney analyzed whether a hazard of “extreme heat” was present based on a combination of 

factors, including (1) ambient heat, (2) the decedent’s metabolic heat, and (3) the decedent’s ability 

to dissipate heat, brought on by the weather and the working conditions. 2016 OSAHRC LEXIS 

at *77-99. In yet another case, a heat hazard existed where the air temperature was 104°F and 

105°F and the NWS had issued warnings about the dangerously hot temperatures. United States 

Postal Service, 2014 OSAHRC LEXIS 63, 25 OSHC (BNA) 1116 (No. 13-0217, 2014). And in 

one Commission decision, the presence of a heat stress hazard was found when there was a 

“combination of environmental or ambient heat conditions (the heat in the air, the humidity, and 

the air velocity) and the internal or metabolic heat produced by the activity being performed ("the 

workload"), less the cooling effects of evaporation.” Industrial Glass, 1992 OSAHRC LEXIS 34, 
18

*11, 15 OSHC (BNA) 1594 (No. 88-0348, 1992).

If anything, these cases illustrate the inconsistent approach OSHA has taken with respect 

to identifying when a hazard exists. There is nothing in OSHA guidance or Commission decisions 

which provide the regulated community with sufficient notice of when an actual hazard exists or 

how the hazard should be determined. If those that enforce such requirements cannot agree on 

how to assess the hazard, how can employers be expected to know under what conditions the 

hazard actually exists and when various precautions “must,” rather than “should,” be taken?

For employers whose work is not static, such as a residential home builder, the Judge’s 

decision would require such employers to be re-evaluating the weather every time any employee 

moved location on the job. What about for a home builder who spends half his day in shade and 

half his day in direct sunlight; at what point is there a heat hazard? What about a home builder 

who spends a portion of his day on the roof and then a portion inside a partially-built home? Also, 

how does an employer determine what “direct sunlight” encompasses? Is it measured on the 

number of direct sun rays, how long the sun rays are on employees without any cloud coverage, 

what about periodic cloud coverage? Here, the Judge seemed to ignore evidence that there was 

some “occasional scattered clouds” and held that employees were working in “direct sunlight.” 

Slip. Op., p. 3. Is direct sunlight measured on the strength of the UV Index and UV Reports for 

each geographical area, which typically take into account the angle of the sun and the cloud 

coverage? Should employers now encompass looking at both the NWS Heat Index, since that was 

designed for “shady, light wind conditions” and now use the UV Index to determine if there is 

“direct sunlight” and how strong?

The Judge’s finding of a hazard despite a lack of explicit information or guidance from 

OSHA on when a heat hazard is triggered and what obligations an employer must take presents 

the very real concerns of the “gotcha” General Duty Clause that worried many in Congress in 
19

developing the OSH Act.

2

C. The NRCA Guidance Material on its Own is Insufficient to Demonstrate Industry 

Recognition.

In her decision, the Judge examined the extent to which Sturgill or Sturgill’s industry 

recognized “heat as a hazard for employees engaged in roofing work.” Id. at 12. In finding that 

the industry recognized heat as a hazard, the Judge relied primarily upon a pocket safety guide that 

“includes a section on heat-related illnesses and precautions to avoid heat exhaustion or heat 

stroke.” Id. The Judge quotes from a section of the pocket guide:

Roofing can be hot work. Hot weather makes it even more difficult to stay cool. 

Too much heat can lead to heat exhaustion or, worse heat stroke. Both conditions 

can be dangerous, so it is important to understand the precautions you need to take 

to avoid heat-related illnesses.

Id. The remainder of the pocket guide related to “heat-related illnesses” is just over 200 words 

 

2 The Commission has also asked “whether an employer’s knowledge or lack of knowledge of its 

employees’ underlying health conditions or ages, and any legal restrictions upon the employer in 

obtaining such information, are relevant to the Secretary’s burden to establish a violation of the 

general duty clause in this case.” See Commission Briefing Notice. In NAHB’s view, an 

assessment of an employee’s underlying health condition or age undercuts the “recognition of a 

hazard.” The personal risk factors of each employee, in this case and in others, should have no 

bearing on whether there is a violation of the General Duty Clause. Analyzing personal risk factors 

such as underlying health conditions or ages eliminates the sweeping concept of a “recognized 

hazard” for all employees and instead turns the General Duty Clause into an “individual duty 

clause,” whereby the recognition of the hazard is now employee-specific. Furthermore, NAHB 

notes that other states that have implemented specific outdoor heat standards or heat illness 

prevention standards do not require employers to assess personal conditions. See California, Cal. 

Code Regs., tit. 8, § 3395(h)(1)(A) (addressing personal risk factors for heat illness only in the 

context of training employees so that they are aware of the potential personal factors that may 

impact their risk and making clear in rulemaking that the standard does not require employers to 

get personal information from employees, and employers are neither expected nor encouraged to 

do this); Washington, WAC 296-62-09560(1)(b) (equally addressing personal factors as part of 

training to provide general awareness of these factors to employees and specifically stating that

such information is for the employee’s personal use). 
20

discussing symptoms of heat exhaustion and heat stroke, as well as treatment for both. See

Respondent’s Exhibit 9. The pocket guide includes statements such as “Call 911-get medical 

attention immediately,” “Drinking alcohol the night before can cause dehydration the next day,” 

“Make sure you get enough sleep at night and eat properly,” and “Do not work in shorts, and 

always wear a shirt.” Id.

While the Judge does not rely on them specifically for industry recognition, she also 

discusses two NRCA Tool Box talks. Slip. Op., p. 12. One talk – “Heat Stress” includes a chart 

for identifying and treating heat rash, heat cramps, heat exhaustion, and heat stroke. Secretary’s 

Exhibit 14. It then includes all of seven bullet points on how heat illness is preventable, most of 

which overlap with the points made in the safety pocket guide. Id. The other Tool Box talk –

“Weather – Personal Injury” discusses the hazards of working outside in “extremely” high or low 

temperatures, along with severe weather such as thunderstorms. Secretary’s Exhibit 10. Again, 

many of the same points as were included in the safety pocket guide are discussed in this one-page 

document. Id.

The NRCA guidance material, like NAHB’s guidance documents, are designed to provide 

education to employers in a user-friendly format. Quick, understandable guidance material is 

critical to spreading the message of safety. These types of documents are very important in 

protecting the safety and health of construction employees who have to work outside in a wide 

range of work environments.

On their own, however, and without additional evidence in the record, the NRCA 

documents should not have been considered as conclusive of industry recognition. An industry 

trade association that puts out a few documents noting that heat can be hazardous to one’s health, 

is not evidence that the industry recognized the conditions at issue in Sturgill as presenting a 

hazard.
21

In the case of Sturgill, the temperature at the time of the incident was below 90 degrees 

with around 55% relative humidity, placing it in the “caution” category for the NWS Heat Index, 

as set forth above. There is no evidence in any of the NRCA documents that these conditions 

would be recognized as hazardous by the roofing industry. The pocket safety guide does not at all 

discuss what heat levels constitute a “hazard” to employees. Nor does the tool box talk addressing 

“Heat Stress.”

The only NRCA document that even comes close to touching on when heat becomes 

hazardous to employees is the “Weather – Personal Injury” tool box talk that references “extreme” 

heat and mentions temperatures in the 90s and 100s, significantly above the temperature conditions 

at issue in Sturgill. See Secretary’s Exhibit 10.

NAHB does not dispute that industry recognition of a hazard under the General Duty 

Clause can be shown through information put forth by industry trade associations. However, in 

this instance, the Judge’s decision has taken that principal too far. The Judge, in effect, has stated 

that the industry recognizes essentially any remotely elevated temperature as a recognized “heat” 

hazard for employees performing roofing work. This is not what the NRCA material does, 

however. The NRCA material simply provides information to member companies and to their 

employees on ways to protect themselves from working in certain hot environments. This 

information – without more – is insufficient to demonstrate that the entire roofing industry 

recognizes a “heat” hazard when working under the conditions at issue in Sturgill.

The importance of this in the context of the General Duty Clause and the Secretary’s burden 

of proof cannot be overstated. One of the four prongs of the Secretary’s burden is to demonstrate 

that the employer or the employer’s industry recognizes the hazard. The cursory way in which the 

Judge has analyzed industry recognition in this instance has essentially written this prong out of 

the test. If left to stand, the Secretary can just point to the NRCA documents as industry 
22

recognition of any “heat” hazard that the Secretary deems to be excessive. 

The Judge’s decision is in stark contrast to other Commission decisions that have been 

presented with, and analyzed, extensive expert and other evidence of industry recognition in 

satisfying this prong of the Secretary’s burden. See, e.g., Beverly Enterprises, Inc., 2000 OSAHRC 

LEXIS 121, *106-111, 19 OSHC (BNA) 1161 (Nos. 91-3144, 92-238, 92-819, 92-1257, 93-724, 

2000) (analyzing extensive expert testimony and other studies and equations to determine industry 

recognition); Arcadian Corp., 2004 OSAHRC LEXIS at *29-34 (same).

NAHB is very concerned about the impact of such a decision on its own members and 

guidance material. As set forth above, NAHB has also put forth some user-friendly guidance 

material to assist member companies and their employees regarding working in the heat. Like the 

NRCA material, these are not meant to be comprehensive treatises on heat hazards and at what 

level the outside work environment constitutes a heat hazard for purposes of the General Duty 

Clause.

NAHB notes that NIOSH’s “Criteria for a Recommended Standard, Occupational 

Exposure to Heat and Hot Environments” is a 160-page document comprehensively analyzing heat 

exposures, when heat can become dangerous, and steps to take based on heat level to protect 

employees. See https://www.cdc.gov/niosh/docs/2016-106/pdfs/2016-106.pdf (last visited on 

May 13, 2018). This 160-page document serves a useful purpose and likely establishes the level 

at which NIOSH – not the industry – recognizes a hazard in the context of heat. The NIOSH 

document would be useless in the hands of a small contractor, however. Trade association 

publications like the ones put forth by NRCA and NAHB serve a different purpose altogether.

What is troubling about the Judge’s decision is the complete reliance on the materials to 

show industry recognition in this instance. The Secretary presented virtually no evidence – expert 

or otherwise – that the industry recognized the conditions at the Sturgill worksite as hazardous. It 
23

was enough in the Judge’s view to simply reference the NRCA material and then summarily state 

that industry recognized the hazard.

NAHB is not arguing that guidance material cannot be used as evidence of industry 

recognition and there may even be situations where the material – on its own – may be sufficient 

to make that finding. But in this case with the very general information included in the NRCA 

guidance, relying simply on that for showing industry recognition was not appropriate.

It also may have a chilling effect on the willingness of trade associations to produce 

guidance material to their members on issues such as heat illness prevention. Trade associations 

serve many important roles, including educating members on safety and health hazards. Trade 

associations also strive to make these user-friendly and understandable to their workforce. In these 

situations, trade associations are not suggesting that the entire industry recognizes a hazard at a 

certain level. Certainly in the case of heat stress, the NRCA materials cannot be read to suggest 

that the entire roofing industry recognizes a heat hazard when performing roofing work at 83 

degrees with 55% humidity and a Heat Index in the caution zone.

Trade associations may decide to simply avoid publishing guidance material on heat illness 

– or other potentially hazardous situations – as the Sturgill decision has used those materials to 

“check the industry recognition” box without any other evidence. The Commission should reject 

this.

D. The Judge Failed to Find that the Abatement Methods would Eliminate or 

Materially Reduce the Hazard.

In the decision, the Judge purports to examine the extent to which the Secretary’s proposed 

abatement methods were feasible and would materially reduce the hazard. Upon close review, 

however, the Judge never found that any abatement method would materially reduce the hazard.

The Judge correctly described the legal test for the Secretary to prove the fourth prong of 
24

a General Duty Clause violation. The Judge states:

The Secretary must show that the proposed abatement method is feasible and will 

materially reduce the hazard. Arcadian Corp., 20 BNA OSHC 2001, 2011 (No. 93-

0628, 2004). “[T]he Secretary need only show that the abatement method would 

materially reduce the hazard, not that it would eliminate the hazard. The Secretary 

is therefore not required to show that the abatement method’s absence was the sole

likely cause of the serious physical harm.” Id. citing (Morrison-Knudsen 

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993) 

(emphasis in original)).

Slip. Op., p. 15. The Judge then further adds – in a summary fashion – that she finds that “Sturgill 

could have feasibly abated and materially reduced the heat-related hazard at this worksite.” Id. In 

the pages that follow, however, the Judge never in fact finds that the particular abatement methods 

put forth by the Secretary would eliminate or materially reduce the hazard.

In analyzing the fourth prong of the Secretary’s burden, the Judge essentially reviewed 

certain measures that she believed Sturgill could have implemented at the worksite. For example, 

she states:

 “Sturgill could have required its employees to wear suitable clothing when working on 

a roof in the heat.”

 “Sturgill could have implemented a formalized work-rest regimen that accounted for 

the weather conditions and removed from the roof any employee who did not follow 

the regimen.”

 “Sturgill could have implemented a specific, formalized hydration policy.”

 “Sturgill could have developed a practice of monitoring employees for signs and 

symptoms of heat-related illness.”
25

Id. In her opinion, the Judge never finds that each abatement method would have eliminated or 

materially reduced the heat hazard. They are framed as things that could have been done with no 

stated finding of their impact. She then summarily states that “I find that the Secretary has shown 

that feasible means existed to reduce the hazard of heat-related illness for Sturgill’s employees 

working on the PNC roofing project.” Id.

On its face, this is insufficient to sustain the Secretary’s burden. The standard under the 

“feasible abatement” prong is not that something else could have been done by an employer. It is 

that there are feasible abatement measures available that could have been implemented and would 

eliminate or materially reduce the hazard. The availability of measures that “could” have been 

taken does not constitute a violation of the General Duty Clause. The Judge’s failure to make this 

type of finding stands in stark contrast to, and is contrary to Commission precedent on the 

Secretary’s burden of proof under the General Duty Clause, other analogous situations where there 

are several potential steps an employer can take to address a hazard from a litany of options.

In Secretary of Labor v. Pepperidge Farm, Inc., 1997 OSAHRC LEXIS 40, 17 OSHC 

(BNA) 1993 (No. 89-265, 1997), the Commission grappled with a similar situation in the context 

of a General Duty Clause citation for ergonomics. In that case, the Secretary proposed, and the 

employer did not disagree with, the concept of a process approach to abatement. 1997 OSAHRC 

LEXIS at *167. The employer, as with Sturgill here, had taken certain measures to address 

ergonomics. However, there were other steps that the employer could have taken that the Secretary 

suggested were appropriate. Id. at *171.

The Commission found that a process approach was consistent with the General Duty 

Clause and allowable. Id. at *165-167. However, to meet his burden under the General Duty 

Clause, the Secretary could not simply list a number of potential measures that could have been 

implemented. The Secretary needed to demonstrate – through expert testimony or other means –
26

that a particular method of abatement was effective in another setting based on empirical evidence 

or equivalent expert testimony. Id. at *168. As the Commission stated: “What is called for, and 

what the Secretary appears to invite, is evidentiary presentation that a given action is both within 

the range of what is feasible at the worksite and is reasonably likely to produce a material reduction 

in hazard.” Id. at *189n.127. See also Beverly Enterprises, 2000 OSAHRC LEXIS at *120 (“The 

Secretary must specify the proposed abatement measures and demonstrate both that the measures 

are capable of being put into effect and that they would be effective materially reducing the 

incidence of the hazard.”).

The Judge in Sturgill ignores this precedent and does not make any findings with respect 

to whether a particular abatement measure would materially reduce the hazard.3 With respect to 

abatement, addressing heat at the worksite involves a process approach similar to what an 

employer would do to address ergonomic hazards. A number of measures could be taken, but not 

all of them are appropriate and not all would materially reduce the hazard. The Secretary presented 

no expert testimony or other significant evidence providing the empirical evidence of success that 

the Commission in Pepperidge found was needed in that case.

The Judge’s failure to make these findings weakens in a significant way the burden on the 

 

3 The Secretary in his brief appears to recognize the failure of the Judge to make this finding. The 

Secretary’s brief is riddled with references to how certain evidence showed the hazard would be 

“materially reduced.” See Brief for the Secretary of Labor, pp. 16-18 (“acclimatization materially 

reduces the heat hazard by increasing an employee’s ability to cool off in the heat”; wearing closefitting clothing “keeps the worker cooler, i.e., materially reduces the heat hazard”; formalized 

work-rest regimen “materially reduces the heat hazard by giving the body an opportunity to get rid 

of excess heat.”). The Judge never made these findings, however, and the evidence does not in 

fact demonstrate this. The Secretary even states that the NRCA “recommended all of the 

Secretary’s proposed abatement measures, and explained how these measures would materially 

abate the hazard.” Id. at 8. In fact, as described above, the NRCA material, while useful to provide 

general information to roofing contractors to keep safe in heat, did not make any finding that a 

particular abatement measure would “materially reduce” the hazard under the General Duty 

Clause.
27

Secretary to prove feasible means of abatement. Coupled with the other aspects of analysis, the 

decision eviscerates OSHA’s burden in this area. In a heat illness case, there will always be some 

step that an employer could have taken that it did not, short of not performing the work at all. It 

should not be enough for a Judge to simply describe the steps that an employer could take to meet 

this prong of the General Duty Clause.

V. Conclusion

For the reasons set forth above, NAHB respectfully urges the Commission to vacate the 

decision on review. The decision represents a dangerous expansion of the General Duty Clause, 

which if left to stand, places residential home builders in ongoing, significant legal jeopardy.

Dated: May 14, 2018 Respectfully submitted,

By: /s/ Bradford T. Hammock

Bradford T. Hammock

Tressi L. Cordaro

JACKSON LEWIS P.C.

10701 Parkridge Blvd., Suite 300

Reston, VA 20191

Telephone: 703-483-8300

Facsimile: 703-483-8301

ATTORNEYS FOR 

NATIONAL ASSOCIATION OF HOME 

BUILDERS OF THE UNITED STATES
28

CERTIFICATE OF SERVICE

I HEREBY CERTIFIY that copies of the foregoing Brief of Amicus Curiae National 

Association of Home Builders of the United States has been served on the below-named 

individuals this 14th day of May, 2018, in the manner indicated below:

Via OSHRC e-Filing

Charles F. James, Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

200 Constitution Avenue, NW, Room S4004

Washington, D.C. 20210

Robert T. Dunlevey, Jr.

Taft Stettinius & Hollister LLP

40 North Main Street, Suite 1700

Dayton, OH 45423

Phone: 937-228-2838

Email: rdunlevey@taftlaw.com

Counsel for Respondent

/s/ Bradford T. Hammock

Bradford T. Hammock

4839-9414-1029, v. 1