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

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., NinthFloor

Washington, DC 20036-3457

|                                           |
|-------------------------------------------|
| SECRETARY OF LABOR,                       |
| Complainant,                              |
| v.                                        |
| US POSTAL SERVICE-CANOVANAS

POST OFFICE, |
| Respondent.                               |

OSHRC Docket No.21-0794

Appearances:

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

For Complainant

David P. Larson, Esq.,U.S. Postal Service Law Department,National Employment Litigation Unit,Denver,Colorado

For Respondent

Before: Covette Rooney, Chief Administrative Law Judge

DECISION AND ORDER

Respondent, US Postal Service,CanóvanasPost Office (USPS), is afederal agency engaged in providing postal services and related activities with its principal office and place of business at 18400 Road 3, Suite 136, Belz Outlet,Canóvanas, Puerto Rico 00729. (Joint Pre-Hr’gStatement ¶5,4).OnMay 14, 2021, the Occupational Safety and Health Administration (OSHA)conducted an investigation, following a complaint about COVID-19 protocols not being followed at theCanóvanasPost Office. Id. After the investigation, the allegations alleging COVID-19protocols were not being followed were determined to be unsubstantiated by the facts. However, the investigation, through observations made in plain view, resulted in the issuance of a two-itemcitation (the Citation) to Respondent, alleging a serious violation of29 C.F.R.§ 1910.37(a)(3) and a serious violation of 29 C.F.R.§1910.37(b)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the Act). TheCitation alleged that Respondent’s employees were exposed to hazards presented by an obstructed exit route and hazards presented by the lack of an exit sign on a designated exit door. (SeeCitation). The Citation proposed a total penalty of $15,604.

On July 28, 2021, Respondent timely filed a notice of contest, thereby bringing this matter beforethe Occupational Safety and Health Review Commission (the Commission).See29 U.S.C. § 659(c). A one-day hearing was held on May 10, 2022, by way of Cisco WebEx videoconferencing technology. The Secretary presented one witness: the Compliance Safety and Health Officer (CO) who conducted the investigation, TeodoroRovira.1Respondent did not call any witnesses. (Tr. 85). Both parties filed timely post-hearing briefs and post-hearingreplybriefs. 

For the reasons thatfollow, the Citation,alleging a serious violation of 29 C.F.R.§ 1910.37(a)(3) and a serious violation of 29 C.F.R.§1910.37(b)(2), as amended,is affirmed and a penalty of $15,604is assessed.

I.Motion to Amend

On May 12, 2022,two days after the hearing,the Secretary moved to amend its citation and complaint. On May 25, 2022, Respondent moved to strike and objected to the Secretary’s Motion to Amend. After a thorough reviewas discussed below, the Secretary’s Motion to AmendtheCitation and Complaintis Granted.

The Secretary moved for an order amendingonly the alleged violation description (AVD) ofCitation 1,Item 2 as follows (amendments inBOLDandstrikethrough):

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

a.On or about 14 May 2021, at USPS Canovanas Post Office; towardsthe rear of the facility attheMain Lobby/CustomerLoadingArea, a designated exit was not marked by an exit sign or any other means.

The Secretary’s motion was filed 2 days after the hearing in this matter on May 12, 2022. In his Motion, the Secretary essentially contends the proposed amendment to the factual descriptionof Citation 1, Item 2more accurately describes the location of the violation in Respondent’s facility at the time of the OSHA inspection. The Secretary further contends that he introduced evidence at the hearing indicating the exit door cited inItem 2 was located near the back of the post office facility, leading to the exit discharge in the loading area. (Sec’y Mot.to Amend 4). The Secretary argues the amendment arises out of the same conduct, occurrences or hazards described in the original Citation and Notification of Penalties. (Id.1). He argues that the CO, at the hearing, was extensively questioned and cross examined regarding the location of Citation 1,Item 2, that theRespondent had knowledge of the location since the time of OSHA’s closing conference in May 2021, and from the photographs jointly admitted into evidence as J-1, J-2, and J-3. (Id.1-6). Accordingly, the Secretary argues the corrected location of the violation alleged in Citation 1,Item 2 was clearly tried by implied consent. (Id.3).

Respondent opposes the Secretary’s motion contending it is untimely,seeks to add additional evidence for consideration,andclaims the amendmentwould essentially deny it due process. Respondent also asserts it would be prejudiced by the proposed amendment, as it defended under the initially cited allegations and would have defended differently under the proposed amendment. (Resp’t Opp’nto Mot.to Amend). 

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

When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move–at any time, even after judgment–to amend the pleadings to conform them to the evidence and to raise an unpleaded issue... 

The key consideration regarding the propriety of a post-hearing amendment is whether the unpleaded issue was tried by express or implied consent of the parties.Fed. R. Civ. P. 15(b).

It is well established that administrative pleadings are liberally construed and easily amended.Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977);Nat’lRealty & Constr.Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). “[A]mendments to a complaint are routinely permissible where they merely add an alternative legal theory but do not alter the essential factual allegations contained in the citation.”A. L. Baumgartner Constr.,Inc., 16 BNA OSHC 1995, 1997(No. 92-1022, 1994) (post-hearingsua sponteamendment by judge). The Commission has held that amendment is proper where the parties “squarely recognized that they were trying an unpleaded issue, and consent to try the unpleaded issue may be implied from the parties' conduct.”George Campbell Painting Corp.,18 BNA OSHC 1929, 1931(No. 94-3121, 1999) citingRGM Constr. Co., 17 BNA OSHC 1229, 1234(No. 91-2107, 1995).Consent is not implied by a party's failure to object to evidence that is relevant to both pleaded and unpleaded issues, at least in the absence of some obvious attempt to raise the unpleaded issue.McWilliams Forge Co., 11 BNA OSHC 2128, 2130(No. 80-5868, 1984).

Despite Respondent’s assertions, the record reveals that the nature of the amended allegation and the requirement for an exit sign on a door toward the rear of the facility were triedby consenthere. During the hearing, the CO was questioned byRespondentabout the specific door the CO was referring to in Citation 1,Item 2. (Tr. 71-74). The CO confirmed his testimony and exhibits referred to a door toward the back of the building. (Tr. 71-74; Exs. J-2, J-3, J-4, J-4A).

The parties in this case “squarely recognized” that they were trying the issue of whether Respondent was in violation of29 C.F.R. § 1910.37(b)(2) as it pertained to a designated exit door to the rear of the facility. Both parties knew from the inception of this case that Respondent was defending against the alleged violation of 29 C.F.R. § 1910.37(b)(2)in regard toa door at the rear of Respondent’s facility. The Violation Worksheet for Citation 1,Item 2 which was produced to Respondent during discoveryas Secretary’s Responses and Objections to the Respondent’s First ProductionRequests,statesthe location of the violation was “at the workfloor toward the exit to the reception platform.” (Sec’y Resps.and Objs.to the Resp’tFirst Produc.Req., Resp’t.Req.#1). During the course ofthe hearing, it became apparent Respondent was asserting that the cited standard did not apply to the door at the rear of the facility. 

Theproposedamendmentto the AVDdoes not raise any new questions of fact. The parties tried the factual issues relevant to the unpleadedAVD; therefore, theproposedamendment is permitted unless Respondent would be prejudiced by the amendment.

Respondent claims that it will be prejudiced by the Secretary's motion in that it would have defended differently under the proposed standard. “[I]t is proper to look at whether the party had a fair opportunity to defend and whether it could have offered any additional evidence if the case were retried.” ConAgra Flour Milling Co.,15 BNA OSHC 1817, 1822 (No. 88–2572, 1992). 

Respondent’s ability to prepare and present its case was not impaired by the change inAVD. As set forth above, the nature of the amended allegation and whether the requirement for an exit sign on a door toward the rear of the facility was complied with,on the day of the inspection,was fully litigated. Not only did Respondent not object to the litigation of the issue of the exit sign on a door to the rear of the facility, but it also specifically questioned the CO on it. Furthermore,Respondent did not seek to present any additional evidence at the hearing.Amending the citationAVDdoes not alter the essential allegations contained in the original citationAVD. Amendment of the citation conforms the pleadings to the evidence and causes no prejudice to Respondent.

Having considered the pleadings and good cause having been shown, the Secretary’s Motion to Amend Citation and Complaint to allege a violation of 29 C.F.R. § 1910.37(b)(2) is GRANTED and theAVDfor Citation 1,Item 2 is amended as follows:

29 C.F.R. § 1910.37(b)(2): On or about 14 May 2021, at USPS Canovanas Post Office; towards the rear of the facility at the Loading Area, a designated exit was not marked by an exit sign or any other means. 

II.Stipulations& Jurisdiction

The partiesstipulated tovarious facts, including several jurisdictional details.(JointPre-Hr’gStatement).Based on theJointStipulations, the Court findstheCommission has jurisdiction over thisactionpursuant tosection 10(c) of the Act, 29 U.S.C.§659(c). (Joint Pre-Hr’g Statement ¶ 6,4). Further, the Court obtained jurisdiction over this matter under section 10(c) of theAct upon Respondent’s timely filing of a notice of contest. 29 U.S.C. § 659(c).The Courtalsofinds Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of sections3(3) and3(5) of the Act,29 U.S.C. §§ 652(3), (5). 

III.Factual Background2

A.USPSCanóvanasPost Office

Respondentoperates as a nationwide employerengaged in providing postal services and related activities with its place of business atCanóvanas, Puerto Rico. (Joint Pre-Hr’g Statement). Many of the materials and supplies used and/or manufactured by Respondent originated and/or were shipped from outside the Commonwealth of Puerto Rico. (Joint Pre-Hr’g Statement ¶ 6,4).At the time the Citation was issued,Respondent employedtwenty-twoemployees at itsCanóvanas, Puerto Rico, Post Office facility. (Tr. 33-34). 

On the day of the inspection,Respondent’sfacility employees consisted of six carriers, four highway, three clerks, two management, and one maintenance. (Tr. 34). Mr. Tim Knowles was the Acting Postmaster for the facility. (Tr. 34).

B.OSHA Inspection

OnMay 14, 2021, CO Teodoro Rovira conducted an onsite inspection at theCanóvanasPost Office located at 18400 Road 3, Suite 136, Belz Outlet inCanóvanas, Puerto Rico. (Tr.16-18; Joint Pre-Hr’g Statement). CO Rovira was assigned to conduct the inspection after the OSHA Puerto Rico Area Office had received a complaint that COVID-19 protocols were not being followed at theCanóvanasPost Office location. (Tr. 16-18). When CO Rovira arrived at the Post Office, he presented his badge to one of the postal clerks and asked to speak with an officer in charge or a postmaster. (Tr. 18-19).

CO Rovira waited in the lobby of the Post Office for approximately 10 to 15 minutesbefore he was able to speak with an officer in charge concerning the COVID-19 complaint. (Tr. 19-20). While CO Rovira was waiting in the lobby, at the front of the building, he observed some shelving behind a door to the lobby. (Tr.20-21; Ex. J-1). The door openedoutward, from where Respondent’s employees worked, into the lobby. (Tr. 21; Ex. J-1). However, the door could not open all the way because it was blocked by shelvingand packaging materials. (Tr. 21; Ex. J-1). CO Rovira noticed the shelving had packaging material for customers to buy and was affixed to the wall behind the door. (Tr. 21; Ex. J-1). CO Rovira testified that because he saw the condition of thedoor partially blocked bypackaging materials on shelves, there was the potential for a firesafety hazard. (Tr. 21). He then determined that the scope of the investigation should be expanded to includean examination of the facility’s exits for safety hazards. (Tr. 21, 24-25). 

While waiting in the lobby, CO Rovira testified that he observed Respondent’s employees socially distancing themselves, wearing the proper protective equipment, and had hand sanitizer for customers to use. (Tr. 21-22). CORovira then proceeded to conduct his opening conference with theActing Postmaster, Tim Knowles, Postal Service Safety Officer, Martin Ramos, by phone, and union representative, Javier Rivera. (Tr. 22-23). CO Rovira informed them that based on his observations of thepartiallyblocked lobby door, he was going to expand the scope of the investigation beyond the original COVID-19 complaintto concentrate specifically on exits. (Tr. 24-25). 

Following the opening conference, CO Rovira conducted a walk-around inspection of the facility with Safety Officer Martin Ramos andActingPostmaster Tim Knowles. (Tr. 24-26). During the walk-around inspection, CO Rovira observed two hazardous conditions which he pinpointed for Mr. Ramos and Mr. Knowles. The two hazardous conditions CO Rovira observed were thepartiallyblocked door to the lobby(at issue in Item 1)and another door at the “back of the building”(at issue in Item 2)which lacked any exit signs. (Tr. 25-26; Exs. J-1, J-2, J-3). 

At the end of the inspection, a closing conference was held where CO Rovira summarized the inspection and the violations he observed. (Tr. 26-27). As a result of the CO’s investigation, OSHA issued a two-item serious citation for alleged violations of 29 C.F.R.§1910.37(a)(3) and 29 C.F.R.§1910.37(b)(2).

IV.Analysis

A.Law Applicable to Alleged Violations

To establish a violation of an OSHA standard, the Secretary must prove: (1) the cited standard applies; (2) the terms of the standard were violated; (3) one or more employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Astra Pharm. Prods.Inc., No. 78-6247, 1981 WL 18810, at *4 (OSHRC, July 30, 1981),aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

The Secretaryhas the burden of establishingeach element by a preponderance of the evidence.SeeTheHartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a factbut by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. 

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

1.Citation 1, Item1(Blocked Door at Front of Building)

Complainant alleged a serious violation of the Act in Citation 1,Item1,as follows:

29 CFR 1910.37(a)(3)3: Exit routes must be free and unobstructed. No materials or equipment may be placed, either permanently or temporarily, within the exit route. The exit access must not go through a room that can be locked, such as a bathroom, to reach an exit or exit discharge, nor may it lead into a dead-end corridor. Stairs or a ramp must be provided where the exit route is not substantially level.

On or about 14 May 2021, at USPSCanóvanasPost Office; the egress route and access to an emergency exitdoor was obstructed by mail shipping materials,boxesand shelving.

SeeCitation.

a.The StandardApplies

“Under Commission precedent,however,the focus of the Secretary’s burden of proving that the cited standard applies pertains to the cited conditions, not the particular cited employer.”S. Pan Servs. Co., 25 BNA OSHC1081, 1084 (No. 08-0866, 2014).In the case before this Court,the conditions of the hazard are the critical element, not the employer. A further example has been noted inRyder TransportationServices,where it was noted that“that the Secretary has failed to establish that the cited general industry standard applies to the working conditions here”).Ryder Transp. Servs.,24 BNA OSHC 2061, 2064 (No. 10-0551, 2014).The Commission also articulated this infinding“the cited ... provision was applicable to the conditions in[Respondent’s]traffic control zone.”KS Energy Servs., Inc.,22 BNA OSHC 1261, 1267 (No. 06-1416, 2008)Further the Commission found that “[i]n order to establish a violation, the Secretary must show that the standards applied to the cited conditions.”Arcon, Inc.,20 BNA OSHC 1760, 1763 (No. 99-1707, 2004).The Secretary has met his burden here.

It is undisputed that Respondentoperates as a nationwide employer engaged in providing postal services and related activities with itsworkplaceat Canóvanas, Puerto Rico. (Joint Pre-Hr’g Statement). The scope of the general industry Exit Routes and Emergency Planning covers every employer andevery exit route. See29 C.F.R.§ 1910.34. Therefore, Respondent would fall under the purview of Part 1910 as a covered employer. Section1910.37(a)(3) calls for all exit routes to be “free and unobstructed” and “[n]o materials or equipment may be placed, either permanently or temporarily, within the exit route.” Exit route is defined in general industry standard29 C.F.R. § 1910.34(c)as:

“[A] continuous and unobstructed path of exit travel from any point within a workplace to a place of safety (including refuge areas). An exit route consists ofthree parts: The exit access4; the exit5;and,the exit discharge6. (An exit route includes all vertical and horizontal areas along the route.)”

29 C.F.R. § 1910.34(c).

The Secretary contends that standard 29 C.F.R. § 1910.37(a)(3) is applicable to Respondent’s Post Office. He argues that by the standard’s plain terms, it applies to the door in question because it is part of an exit route. (Sec’y Br. 6).The exit route ispresented on Exhibit J-4Aas the exit accesspaththroughT-6, throughthe exit door labeled as A, out of the lobby exit doors (exit discharge) labeled as B,and thenleading directly outside of the facility.(Sec’y Reply Br. 3-4).Respondent argues that the map of the facility does not identify the cited door at the front of the facility as an exit door. (Resp’t Br. 4).

When interpreting a standard, the first consideration is the plain text of the standard. “If the meaning of the [regulatory] language is ‘sufficiently clear,’ the inquiry ends there.” TheDavey Tree ExpertCo., 25 BNA OSHC 1933, 1934, 1937 (No. 11-2556, 2016), quotingBeverly Healthcare-Hillview, 21 BNA OSHC 1684, 1685 (No. 04-1091, 2006)(consolidated),aff’d in relevant part, 541 F.3d 193 (3d Cir. 2008). The regulatory language is considered ambiguous where the meaning is “not free from doubt.” Martin v. OSHRC(CF&I), 499 U.S. 144, 150-51 (1991). 

Here, the plain text of the standard supports the Secretary’s interpretation that the cited doorwas part of an exit route. The cited door is part of a continuous path of travel from within the facility’sworkplace to the lobby exit. (Tr. 40-43; Exs. J-4, J-4A). It is undisputed that thecited dooris the only door employees can use to access the lobby from the employee work area. (Resp’t Br. 2). The map of the facility,cited toby Respondent, even labels the doors in the lobby as exits. (Ex. J-4).The record revealsthe exit access as theroutethrough T-6 (on Exhibit J-4A), through the exit door labeled as A (the cited door),and through the lobby exit discharge labeled as Bto outside of the facility. (Tr. 36-43; Ex. J-4A). All ofthe elements of an exit route described ingeneral industry standard29 C.F.R. § 1910.34(c)are met. Nowhere does29 C.F.R. § 1910.34(c)mention an employerspecificallydesignated exit is required as an element of establishing an exit route. The Court finds29C.F.R.§1910.37(a)(3)applies.

b.The Standard was Violated.

The Secretary argues that Respondent failed to comply with the requirements of 29 C.F.R. § 1910.37(a)(3). He contends that the exit route through the lobby to the exit discharge leading out of the facility was obstructed. (Sec’y Br. 7). Respondentdoes not disputethat the door in question was partially obstructed. (SeeResp’t Br. 4-5). However, Respondent does argue that the door to the lobbywas not an exit doorand is not identified as such. (Resp’t Br. 4). Respondent contends other exits exist and are clearly identified on the map of the facility. (Resp’t Br. 4). 

The record is clear, the door into the lobbywas prevented from fully opening because shelves containing packing and shipping material were affixed to the wall behind the door. (Tr. 20-21; Ex. J-1). The shelves containing packing and shipping materialeffectively obstructed the path from a point within the facility, where employees were working, to an exit discharge out of the facility. (Tr. 20-25, 28, 36; Ex. J-1). The standard required Respondent to keepallexit routes “free and unobstructed” from any permanent or temporary materials or equipment that could obstruct the route. See29 C.F.R. § 1910.37(a)(3). Here, the shelves and packing material obstructed an exit route from an area where employees were working to the lobby exits out of thefacility. (Tr. 20-25, 28, 36; Ex. J-1, J-4, J-4A). Although there were other routes to exit discharges (two doors to the back of the facility at the loading bay), theirpresence does not eliminate the hazard posed by the obstructed door in question. See Gould Publ’ns,16 BNA OSHC 1923, 1924 (No. 89-2033, 1994)(multiple routes do not eliminate a hazardper se);see also Hackney/Brighton Corp., 15 BNA OSHC 1886, 1991-93 (No. 88-610, 1992) (violation despite presence of several other doors).

Accordingly,in light ofthe abovementioned, theCourt finds Respondentviolatedthe terms of the standard.

c.Employees were Exposed to a Hazardous Condition

“The Secretary always bears the burden of proving employee exposure to the violative conditions.”Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and footnotes omitted).The Commission’stestfor hazard exposure requires the Secretary to “show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”Delek Ref., Ltd., 25 BNA OSHC 1365, 1374(No. 08-1386, 2015)(citingFabricated Metal Prods.18 BNAOSHCat 1074);aff’d in relevant part,845 F.3d 170 (5thCir. 2016)See also Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980),rev’d on other grounds,George C. Christopher & Sons, Inc., 10 BNA OSHC 1436, 1442 (No. 76-647, 1982);Gilles & Cotting, 3 BNA OSHC 2002 (No. 504, 1976).7

The zone of danger is the “area surrounding the violative condition that presents the danger to employees.”Boh Bros. Constr.Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013)(citingRGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger is determined by the hazard presented by the violativecondition andis normally thearea surrounding the violative condition that presents the danger to employees which the standard is intended to prevent. RGM Constr., 17 BNA OSHC at1234; Gilles& Cotting, Inc., 3 BNA OSHCat2003.

Respondent’semployeeswere exposed to a hazardous condition.Exposureis met by an employee’s mere access to a hazardous situation.Gilles & Cotting, Inc., 3 BNA OSHCat2003. Respondent employstwenty-twoemployees,whichincludesthe 16 who were onsitethe date of the inspection. (Tr. 33-34).It is undisputed that Respondent’s postal clerks and management worked near the front of the facility near the obstructed doorway. (Tr. 40-42;Exs. J-4, J-4A).These employees were working nearshipping and boxing material. (Tr. 40-42;Exs. J-1, J-4, J-4A). The record indicates that in the event of a fire, particularly in thelocations annotated “Parcels,” “Boxes Area,” or “Registry” on the facility map, the obstructed doorway, at A,could prevent the quick escape of any of the employees working in the frontend of the facility. (Tr. 40-43; Exs. J-4, J-4A).

As such, theCourt findsRespondent’s employees wereexposedto a hazardous condition.

d.Knowledge

Respondent’s knowledge of the violation may be establishedby showingthe employer knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C.§666(k);Ormet Corp., 14 BNA OSHC 2134, 2135(No. 85-531, 1991).An employer is required to make a reasonable effort to anticipate theparticular hazardsto which its employees may be exposed during the course of their scheduled work. Automatic Sprinkler Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). Whendeterminingwhether an employer has beenreasonably diligent, the Commission considers“several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.”Precision Concrete Constr., 19 BNA OSHC 1404, 1407(No. 99-0707, 2001). 

An employer’s awareness of the violation may be shown through actual or constructive knowledge of said violation. It is not necessary to show the employer knew or understood the condition was hazardous. Phoenix Roofing, Inc., 17 BNA OSHC1076,1079-1080(No. 90-2148, 1995)(citations omitted).“[An] employer’s duty is to takereasonablydiligent measures to inspect its worksite and discover hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard.”Ragnar Benson, Inc., No. 97-1676, 1999 WL 770809, at *3 (OSHRC,Sept. 27, 1999)(emphasis in original).An employer is not automatically aware of a hazard in plain view, especially if not observed by a supervisory employee.Cranesville Block Co., Inc./Clark Division, Nos. 08-0316 & 08-0317, 2012 WL 2365498, at *10 (OSHRC,June 12, 2012). The actual or constructive knowledge of a foreman or supervisor can generally be imputed to the employer. Tampa Shipyards,15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (citingA.P. O'Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991));N&N Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000)aff’d,255 F.3d 122 (4thCir. 2001).

The Secretary contends thatRespondenthad both actual and constructive knowledge due to the readily apparent and plainly visible hazard. (Sec’y Br. 8-9). An employercanbe deemed to have constructive knowledge of a violation that is in plain view. Kokosing Constr. Co., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996).The Secretaryargues that the doorway to the lobby wasin plain sight and obstructed by shelving filled with packing and shipping material, which could have easily been noticed by supervisory personnel. (Sec’y Br. 9). Further, the Secretary argues Respondent failed to exercise reasonable diligence to discover the longstanding affixed shelves and materials partially blocking the door. (Id.). Consideration of “reasonable diligence” includes an examination of the employer’s “obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence.” Frank Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981). Under Commission precedent, “reasonable steps to monitor compliance with safety requirements are part of an effective safety program.” Sw. Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000). “Reasonable diligence implies effort, attention, and action; not mere reliance upon another to make violations known.” N & N Contractors, Inc., 18 BNA OSHC at 2124.

Respondent failed to exercise reasonable diligence to discover the violative condition and take steps within its power to protect its employees from the violative condition. CO Rovira testified that Respondent did not have a health and safety program. (Tr.47,62). Additionally, the record reveals the violative condition was in plain view from multiple locations, including the lobby and management personnel’s offices, in Respondent’s facility. (Tr. 20-21, 40-43; Exs. J-1, J-4, J-4A). The Postmaster’s and management’s offices were directly connected to the obstructed doorway. (Tr.35,40-43; Exs. J-1, J-4, J-4A). Respondent’s employees and management worked inside the facilityon a daily basisin close proximity to the obstructed doorway. (Tr. 34-35). Further, it is undisputed thatRespondent’s evacuation plan, which is required to be postedfor every employee to see,shows the door labeled A is the only door in the front of the building by which access from the employee work area to the lobby can be obtained. (Tr. 51-52, 67-70;Exs.J-4, J-4A).Respondent could have known of the presence of the violative condition with the exercise of reasonable diligence.

When the Secretary shows that a supervisor had constructive knowledge of the violation, such knowledge is generally imputed to the employer. See Ga. Elec. Co. v. Marshall, 595 F.2d309,321(5thCir. 1979);N.Y. State Elec. & Gas Corp.v. Sec’y of Labor, 88 F.3d98,105(2d Cir. 1996);Access Equip. Sys., Inc., 18 BNA OSHC1718,1726(No.95-1449, 1999).Asthe Postmaster and supervisory personnel had offices with plainly visible views of the violative condition, theirconstructive knowledge is imputed to Respondent. SeeTampa Shipyards,15 BNA OSHC at 1537.

Constructive knowledge of the violative condition is established. The Secretary has proven all elements of hisprima faciecase. 

1.Citation 1, Item2(Rear Exit Door)

Complainant alleged a serious violation of the Act in Citation 1, Item2, as amended,as follows:

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

Onor about 14 May 2021, at USPS Canóvanas Post Office; towards therear of the facility at the Loading Area, a designated exit was not marked by an exit sign or any other means.

SeeCitationas amended.

a.The Standard Appliesand was Violated

Aspreviously addressed,thepostal services and related activitiesRespondent performed would fall under the purview of Part 1910. The scope of the general industry Exit Routes and Emergency Planning covers Respondent and exits. See29 C.F.R. § 1910.34. Section1910.37(b)(2) requires all exits to be “clearly visible and marked by a sign reading ‘Exit’.” Theexit is the “portion of an exit route that is generally separated from other areas to provide a protected way of travel to the exit discharge.” 29 C.F.R. § 1910.34(c). 

The Secretary contends that standard 29 C.F.R. § 1910.37(b)(2) is applicable to Respondent’s Post Officeby the standard’s plain termsand was violated. (Sec’y Br. 10-11). The plain language of the standard supports the Secretary’s interpretation that the door in question, marked as C on Exhibit J-4A,is an exit doorand was required to be marked with a sign reading “Exit.”CORovira testified that the door is an exit door because “it has a crashbaror a push bar area depicted” and leads to the discharge area. (Tr. 51-52). He further testified “the designated exit was not marked by an exit sign or by any other means.” (Tr. 48). Therecordevidence shows there was no “Exit” sign anywhere near the exit door at the rear of the facility. (Tr. 48-50; Exs. J-2, J-3, J-4A). Photographs taken byCORovira of the rear facility door,entered intoevidence as Exhibits J-2 and J-3, specifically show there was no “Exit” sign on the exit door. (Exs. J-2, J-3). Respondent has offered no evidence to rebut the exit door distinctionor lack of an “Exit” sign.

The record shows that the cited standard applies to Respondentand was violated. (Tr.48-52; Exs. J-2, J-3, J-4, J-4A). The cited door is part of a continuous path of travel from within the facility’s workplace to the exit discharge in the rear ofthefacility. (Tr. 51-52; Exs. J-2, J-3, J-4, J-4A). There is no evidence that there was an “Exit” sign anywhere near the exit door at the rear of the facility. (Tr. 48-50; Exs. J-2, J-3). The Court finds 29 C.F.R. § 1910.37(b)(2) appliesand was violated. 

b.Employees were Exposed to a Hazardous Condition

The discussion and rationale addressed in Part IV(A)(1)(c),supra, likewise applies to employee exposure to a hazardous condition here and is incorporated herein. Respondent’s employees were directly exposed to a hazardous condition when they worked at Respondent’sfacilitywith access to an exit door without proper signage. (Tr. 33-34, 48-52; Exs. J-2, J-3, J-4, J-4A). The record indicates a fire in the front of Respondent’s facility would require employees to exit through the rear of the facility, marked as C on the facility map. (Tr. 48-52; Exs. J-2, J-3, J-4, J-4A).

Exiting through the door designated as C on Exhibit J-4A and then through the door designated as letter D would be the only means of exiting from the rear of the facility. (Tr. 55-56; Ex. J-4A).CORovira testified the exit to the right of exit door C “was completely blocked by rolling carts, [and] mailing materials.” (Tr. 56). Employees exiting through the rear of the facility wouldhave no choice but to use the exit door labeled as C. (Tr. 55-56; Ex. J-4A). Without a clearly designated exit sign on the door labeled C,employees would be prevented from expeditiously exiting the rear of the facility in the event of a fire or emergency. (Tr. 33-34, 48-52, 55-56; Exs. J-2, J-3, J-4, J-4A).

As such, this Court findsRespondent’s employeeswere exposed employees.

c.Knowledge

The discussion and rationale addressed in Part IV(A)(1)(d),supra, likewise applies to knowledge here and is incorporated herein. The Secretary contends that Respondent failed to exercise reasonable diligence to discover and to prevent violative conditions and that Respondent therefore hadknowledgeof those conditions. (Sec’y Br. 12). The Secretary argues the lack of an exit sign on the exit door at the rear of the facility was in plain view and readily observableon a daily basis. (Sec’y Br. 12). 

The record reveals Respondent failed to exercise reasonable diligence to discover the violative condition and take stepsto protect its employees. (Tr. 33-34, 48-52, 55-56; Exs. J-2, J-3, J-4, J-4A). Respondenthad no safety and health program at the site to safeguard its personnel. (Tr. 47, 62). The cited door is part of an exit route from within the facility to the exit discharge at the rear of the facility. (Tr. 51-52; Exs. J-2, J-3, J-4, J-4A).Respondent’s evacuation plan, which is required to be posted throughout the facility, designates the door labeled C as an exit for employees. (Tr. 51-52, 67-70;Exs. J-4, J-4A). Respondent’s employees and supervisors worked inside the facilityon a daily basisand used this door to access the loading area. (Tr.34-35,52-53; Exs. J-4, J-4A). The record shows the lack of an exit sign,on theonly available exit from the rear of the facility,was in plain view and readily observablewith reasonable diligence by Respondent. (Tr. 48-52, 55-56; Exs. J-2, J-3, J-4, J-4A).

Constructive knowledge of the violative condition is established. The Secretary has proven all elements of hisprima faciecase. 

I.SeriousClassifications

The Secretary classifiedthe alleged violations in Citation 1,Items1-2as serious.A violation is classified as serious under the Act if “there is substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). The Secretary need not show there was a substantial probability an accident would occur, only that if an accident did occur, death or serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010);Wal-Mart Stores, Inc.,v. Sec’y of Labor, 406 F.3d 731, 735 (D.C. Cir. 2005);Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1388 (D.C. Cir. 1985).

In determining whether a hazard is “causing or likely to cause death or serious physical harm,” the Commission does not look to the likelihood of an accident or injury occurring, but, instead, looks to whether, if an accident occurs, the results are likely to cause death or serious harm. See Babcock& Wilcox Co. v. OSHRC, 622 F.2d1160,1164(3d Cir. 1980);BeverlyEnters., 19 BNA OSHC1161,1188(No.91-3144, 2000) (consolidated);WaldonHealth Care Ctr., 16 BNAOSHC1052,1060(No. 89-3097, 1993).

Therecord is clear that hazardousconditions existed atRespondent’s facility which could potentially result in serious physical harm or death to Respondent’s employees. Respondent’s failure to comply with 29 C.F.R.§1910.37(a)(3) and 29 C.F.R.§1910.37(b)(2) onMay 14, 2021, at its facility in Canóvanas, Puerto Rico exposed employees to hazards and serious physical injury. The evidence in this case establishes that there was a probability of death or serious bodily harm if a fire or emergency occurred. (Tr. 46, 59-61). CORovira testifiedthe obstructed exit route and lack of an exit sign on a designated exit door, during a fire, could lead to severe injuries such as burns, smoke inhalation, or death. (Tr. 46, 59-61). He testified that the inability to quicklyescape the facility through fire routes and their respective exits during a fire or emergency, could cause serious injuries or death to Respondent’s employees. (Tr. 33-34, 40-43, 46-52, 55-56, 59-61). 

These violationswere capable of causingserious injury or death. The Secretary established thatthe hazards from the obstructed exit route and lack of an exit sign on an exit doorwerelikely to cause death or serious physical harmin a fire or emergency. Thus, the violations were appropriately characterized.

V.Respondent’s Defenses Fail

Respondent pleaded numerous defenses in its Answer.8 Many of these defenses were not raised further athearingor in its Post-Hearingand Reply Briefs. Respondent electedagainstpresentingany of itsownexhibitsor witnessesat the hearing. (Tr. 85).Affirmative defenses not raised at thehearingaredeemed waived and abandoned by Respondent. Corbesco, Inc. v. Dole,926 F.2d 422, 429 (5th Cir. 1991) (Affirmative defenses not argued waived);Marmon Grp.,11BNA OSHC2090,2090 n. 1(No.79-5363, 1984) (“Commission declines to reach issues on which the aggrieved party indicates no interest.”). The Court findsall ofthese defenses are rejected because they either lack merit or have been abandoned, or both.

VI.Penalty

Undersection 17 of the Act, the Secretary has the authority to propose a penalty.See29 U.S.C. §§ 659(a), 666.The amount proposed, however, merely becomes advisory when an employer timely contests the matter.Brennan v. OSHRC, 487 F.2d 438, 441– 42 (8th Cir. 1973);Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001).Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 17]”, which it determinesde novo.29 U.S.C. § 666(j);see also Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995). In assessing penalties, the Commission is instructed to give due consideration to the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its history of previous violations. Compass Envtl., Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010)aff’d,663 F.3d 1164(10thCir. 2011). The gravity of the violation is generallyaffordedgreater weight in assessing an appropriate penalty. Trinity Indus., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). A violation’s gravity is determined by weighing the number of employees exposed, the duration of their hazard exposure, preventative measures taken against injury, and the possibility that an injury would occur. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993);Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981). 

The Secretary, in assessing the penalties forItems1and2, proposed agravity-basedpenalty of $7,802for bothviolationsof the cited standards.TheCitation proposed a total penalty of $15,604. TheCO explained OSHA believed the violations’gravity wasmoderatebecause ofthemedium severity and lesser probabilityofseriousinjury, permanent disability, or deathfrom exposure to smoke or fire. (Tr.46, 59-61). The record supports finding that the gravity of the violations warrants amoderatepenaltyas serious injury and deathcould occur. (Tr. 33-34, 40-43, 46-52, 55-56, 59-61). The CO noted thatsixteen employees were exposed, throughout the day, tothe violativeconditions on the day of the inspection. (Tr. 33-34).

The Secretary proposedthat the penaltiesshould not be reduced for good faith becausethere was not a safety and health program, or training implemented at the facility. (Tr. 47, 62; Sec’y Br. 14-16). No reduction was made for historybecause Respondent had previous OSHA violations within the last three years. (Tr. 47; Sec’y Br. 14-16). No adjustment was made for size because Respondent, the U.S. Postal Service, employs over 100,000 people. (Tr. 47; Sec’y Br. 14-16).

Upon due consideration of section 17(j) of the Act, with regard given to the penalty calculation factors, the undersigned findsapenalty forSeriousCitation 1,Item1 andSeriousCitation 1,Item2of $7,802is appropriate, resulting in a total combined penalty of $15,604.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1.Citation 1, Item1,alleging a Serious violation of 29 C.F.R. § 1910.37(a)(3), is AFFIRMED and the Court assesses a penalty in the amount of $7,802; and

IT IS FURTHER ORDERED that:

2.Citation 1, Item2, as amended,alleging a Serious violation of 29 C.F.R. § 1910.37(b)(2), is AFFIRMED and the Court assesses a penalty in the amount of $7,802.

SOORDERED

_/s/Covette Rooney________COVETTE ROONEYChiefJudge, OSHRC

Dated:October 17, 2022

Washington,DC

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

2 The factual background is based on the credible record evidence, as discussed below, and consideration of therecord as a whole. Contrary evidence is not credited.

3 29 C.F.R. § 1910.37(a)(3) states:

Exit routes must be free and unobstructed. No materials or equipment may be placed, either permanently or temporarily, within the exit route. The exit access must not go through a room that can be locked, such as a bathroom, to reach an exit or exit discharge, nor may it lead into a dead-end corridor. Stairs or a ramp must be provided where the exit route is not substantially level.

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

5 Exit is defined asthe“portion of an exit route that is generally separated from other areas to provide a protected way of travel to the exit discharge...”29 C.F.R. § 1910.34 (c).

6 Exit discharge is definedas “[T]hepart of the exit route that leads directly outside or to a street, walkway, refuge area, public way, or open space with access to the outside...”29 C.F.R. § 1910.34 (c).

7 InGilles & Cotting, Inc., the Commission rejected the “actual exposure” test, which required evidence that someoneobserved the violative conduct, in favor of the concept of “access,”which focuses on the possibility of exposure under the conditions. See Gilles & Cotting, Inc., 3 BNA OSHC at 2003(holding “that a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”). 

8 Respondent asserted multiple defenses,inter alia, (1) failure to state a claim, (2) compliance technologically and/or economically infeasible, (3) means of compliance infeasible, (4) Unpreventable or unforeseeable employee misconduct, (5) Respondent’s due process rights were violated, (6) failure to describe with particularity the nature of the alleged violations, and (7) compliance functionally impossible. (Answer at 2-4).