Secretary of Labor v. Wal-Mart Stores, Inc. 

OSHRC Docket No. 09-1013 

Reply Brief for Respondent 

Exhibit D 

Expert Report of James W. Stanley 

Filed on October 21, 2011 
Expert Report of James W. St nley 

February 19, 2010 

In the matter of Secretary of Labor, Complainant, v. Wa -Mart stores, Inc' l 

Respondent, OSHRC Docket No. 09-1 13 
My name Is James W. Stanley, and I have personal knowledge :of the facts and pinions contained herein 

and they are true and correct. 

I have served with the United States:Department of Labor, OC!" potlonal Safety nd Health Administration 

(OSHA) for nerarly twenty-five (26) YEllana. In 1971, I joined the ccupatlonal Saf ty and Health 

Administration as a Compliance Safety and Health Officer {CS 0). In 1971, I, al ng with other CSHO's, 

began enforcing the Occupational safety and Health Act In ge eral, constructlo and maritime industries. 

My primary responsibilities as B CSHO included Inspections fo~ compliance with OSHA regulations. 

In 1972, I was promoted to Assistant Area Director for the Pittsburgh Area Offle ,which had 

jurlBdiction In Western Pennsylvania and West Virginia. I was responsible for th day-io-day 

enforcement operations, Including scheduling Inspectlon aSSignments by all co pilance officers and 

review of all Inspection reports. 

In 1976, I was promoted to Area Director for the newly created Harrisburg. Pen sylvania Area 

Office. My responsibilities included oversellling all inspection activities condu~t by the CSHOs 

of the Area Office, training of OSHOs, assignment of inspections lind Issuance f citations. 

In 19f11, I was promoted to Deputy Regional Administrator for OSHA's Region II (PennsylvanIa, 

Delaware, Maryland, Washington, D.C .. Virginia and West Virginia). My primar responsiblllties were to 

assist the Regional Administrator In the over911 administration of the OSHA Re lon, which InclUded ten 

(10) area offices and two (2) district offices. 

In 1987, I was promoted to Regional Administrator for OSHA's Region II based in New York City. This 

region (one of the most Industrialized regions In the Country) included New Yo k, New Jersey, Puerto 

Rico, and the American Virgin Islands. As a Regional Administrator, adminlste ing OSHA's largest 

Region, I had the overall responsibility for enforcing the OSHA Act In both the ederal and St,te 

jurisdictions. During this time, I supervised Robert Kulick in his variOUS roles I the Area Offices and 

Regional Office. 

In 1994, I was appointed Deputy Assistant secretary or Labor for the OccLLpatl nal Safety and 

Health Administration. This was the highest career pOSition in OSHA and I wa responsible for the entire 

enforcement program throughout the United States In both Federal end State rlsdictlons. Many of the 

current OSHA policies and procedures were Implemented during my tenure a Deputy. 

Effective January 15, 1998, I retired from the Occupational Safety and Health dmlnistratlon after 25 

years and was elected Vic;e President, Safety and Health for AK Steel located In Middletown, OH. AK 

Steel is a major Integreted steel producer with approximately 9,000 employee . It consistently led the U 

Steel Industry In virtually every category of employee safety performance duri g my tenure. After retlrln " 

from AK Steel in February 2004, I accepted the position of President of FORa fety located In Brentwood 

TN. 

In January 2003, the United States Secretary of Labor, Elaine L. Chao, appoi ted me to the 

National AdviSOry Committee on Occupational Safety and Health (NACOSH), whioh Is a twelve 

(12) person committee advising the Secretaries of Labor and Health and Hu an Services on 

occupatlon81 safety and health programs. I have recently completed two term on this 

committee. 

· " 
I have recently served on the Natlonall Safety Council's Board 0 Directors as wei as the National Safety 

Counclrs Executive Committee as Chairmen of the Trustees. I m a member of e AssOCiation for Iron 

and Steel Technology (AIST) and American Society of Safety E gineeng (ASSE). I am an honorary 

advisor to the Board of Trustees for t~e Safety and Health for In ustrial Educatl0 and Labor 

Development (SHIELD) and also havja served on the National fety CounCil's E Itonal Advisory Board. 

lecture extensively throughout the Uriited States on Occupation I Safety and He Ith programs, 

procedures and policies, and I am generally recognized as an e pert In safety an health by employers' 

unions. and my peers in the safety Md health Industry. : 

I am thoroughly familiar and an expett with re6pect to all aspeCt of the enforce ent provisions of the 

OSH Ar:1t including the parameters br Issuing citations under S otion 5(a)(1), th General Duty Clause. 

All of my opinions are to a reasonable degree of professional c. rtalnty. 

, My hourly rate Is $300.00. A list of casEis in which I have testified Is attached to his report. The 

publicatlonl5 I have authored within the last ten years consist ot:FDRsafety news etters and blog postlngs 

available on www.fdrsafety.oom. ' 

In preparation for this report, I have reviewed and considered the following list 0 documents and 

information concerning the above referenced matter; 

a. OSHA Standards for General Industry (29CFR 1910) 

b. OSHA Act (PublIC Law 91-596) 

c. OSHA Field Inspeotlon Reference Manual CPL2.103 

d. United States Department of Labor Complaint re OSHRC Docket No. 0 -1013 

e. OSHA Citation and Notification of Penalty, Inspection Number 3111135 33, Issued 6/26/09 

f. OSHA 1 B Worksheets 

g. Respondent's Responses to the Secretary's First Set of InterroljJatQrles os. 1-21 

FINDINGS AND OPINIONS 

1. Prior to 11/28/08, the Occupational Safety and Health Administration ( SHA) did not have any 

provi5ion within Its regulatlon$, standards or Directives that regulated 0 referenced crowd 

management, crowd management training or crowd control procedure and techniques. 

2. During my 25 years .peclfic work experience at OSHA (1971-1996), G neral Duty Clause 

(5(a}(1)) violations werliil never alleged for1alling to furnish employees safe place to work free 

from the hazard of being struck or asphyxiated by crowd cruS.h, crowd urge or crowd trampling. 

3. In my opinion, as a former OSHA enforcement ofl'lcer--whlch has Inclu ed Compliance Officer, 

Area Director. Regional Administrator and Deputy Assistant Secretary- OSHA and the safety 

industry before 11/28/08 did not recognize that alleged hazards to em loyees of asphyXiation or 

being struck due to crowd crush, crowd surge or crowd trampling were SUbject to enforcement 

under the OSHA Act. 

4. Based on my OSHA knowledge and my search of OSHA's citation de base, although OSHA he. 

conducted thousands or Inspections at Wal-Mart locations throughout he U.S., OSHA hal not 

previously Issued a general duty Citation for crowd related hllu~ards to mployees or received a 

compla.lnt or referral, as those terms are defined In OSHA Directives, lated to crowd conduct; 

nor did OSHA independen'tly conduct an inspection conceming this all ged recognized hazard, 

To the best of my knowledge, these same observations apply to the e tire retail industry of whic 

Wal-Mart Is a part 

5. In my opinion, the OSHA Act does not require employers to protect th ir employees againit 

violent acts of the general public. The issue of crowd control and ero d management Is clearly 

public safety issue regulated by local law enforcement. "'e alleged h zards described in 
OSHA', General Duty Claus~ violation were dependent'on the actions a d behavior of the 

Individuals waiting to enter th~ Wal-Mart &tare and in rn opinion, Wal-M rt management did not 

have the law enforcement authority to control their actio s. 

6. I have reviewed the abatement recommendations In 0 HA's General Du Clause citation. OSHA 

has based thousands of general duty clause citations D consensus ata ards. In the absence of 

any consensus standard in the retail industry that estab Ishes the effica of OSHA's 

recommended abatement methods, and In the absen of the retail indu try havinlil 

recommended or adopted th~se measures, In my form r enforc;ement c pacities, I would have 

rejected the feasibility of the$e measures to materially duce the allege significant risk of 

asphyxiation or being struck due to crowd crush, crowd Burge or crowd t mpllng allegedly related 

to e crowd entering a retail e~tabli8hment ! 

7. I am familiar with and partlcl~iilted In numerol.Js dIscussions related to a development of 

OSHA's workplace vIolence guidi'nce. If en employer v./ere to be put on atice by OSHA that 

"crowd crazing" or "marketing mayhem" related to crowd Inlilress during ales events constitutes 

a recognized hazaro requiring the implementatIon of complex and costl crowd management 

programs, the workplace vlo'lenCEI guidllnce would contain such Informa Ion. To the best of my 

knowledge, OSHA's guidance contalnB no specific reference to the aile d dangers of orowd 

ingras5, or to measures to prevent sociopathic conduct (described in ot er contexts In OSHA's 

workplace violence guldanctl). 

The abO\le findings and opinions are based on the information available to me the tIme of this report I 

re68rve the right to modify and/or supplement these findings Bnd opinions shaul Btlditlonalinformation 

become available. 

Respectfully submitted, 

James W. Stanley 

President 
James W. Stanley, President, FDRSafety, LLC 

Mr. Stanley presently resides at 7123 Tradition Cove Lane West, West Palm Beach, Florida 33412. 

He started his career in 1966 after graduating with a BS Degree in Business Administration from 

Elizabethtown College in Elizabethtown, Pennsylvania. 

His first employer was Liberty Mutual Insurance Company located in Bala Cynwyd, Pennsylvania. 

Mr. Stanley was responsible for investigating accidents and handling workers' compensation claims 

for steveadoring company employees (longshoremen) working on the Philadelphia waterfront. He 

became very knowledgeable in Maritime safety requirements as regulated by the United States 

Department of Labor, especially those areas concerning material handling and rigging of cranes and 

other equipment used in the loading and unloading of ocean going vessels. 

In 1968, Mr. Stanley joined the law firm of Rawle and Henderson in Philadelphia, Pennsylvania as a 

safety and health/accident investigation specialist. Rawle and Henderson represented approximately 

50% of the ships visiting the port of Philadelphia, and Mr. Stanley was responsible for auditing for safe 

working conditions aboard these vessels during the loading and unloading of cargo. He also was the 

primary investigator of accidents and illnesses that occurred to longshoremen and sailors during the 

stevedoring operations. During this time frame (1966 to 1971) long shoring was generally recognized 

as the most hazardous occupation in the United States. Mr. Stanley became thoroughly familiar with 

the applicable Federal and State regulations and became recognized as an expert in material handling, 

rigging, mobile and fixed cranes. 

In May 1971, Mr. Stanley joined the Occupational Safety and Health Administration as a Compliance 

Safety and Health Officer (CSHO). He was based in the Philadelphia, Pennsylvania area office and 

was one of the original enforcement officers for OSHA. In September 1971 Mr. Stanley, along with 

other CSHO's, started enforcing the Occupational Safety and Health Act in General industry, 

Construction industry and Maritime industry. His primary responsibilities included inspection of 

companies for compliance with the OSHA regulations. In addition, Mr. Stanley became the primary 

spokesman for OSHA in Region III, which included Pennsylvania, West Virginia, Delaware, 

Maryland, and the District of Columbia. As an OSHA compliance officer, Mr. Stanley continued to 

become expert in all OSHA safety and health regulations as they applied to covered industries. 

In 1972, Mr. Stanley was promoted to Assistant Area Director for the Pittsburgh OSHA area office, 

which had jurisdiction in Western Pennsylvania, and West Virginia. He was responsible for the dayto-day enforcement operations. His responsibilities included scheduling inspection assignments by all 

the compliance officers and review of all inspection reports. He also conducted numerous conferences 

with employers and was called on to testify on numerous occasions to the validity of OSHA 

citations/violations issued by the Pittsburgh area office. 

In 1976, Mr. Stanley was promoted to Area Director for the newly created Harrisburg, Pennsylvania 

OSHA area office. His responsibilities included overseeing all activities conducted by the employees 

of the area office including training of compliance officers' assignment of inspections, issuance of 

citations, and settlement of cases and where necessary testifying on behalf of the government as an 

expert witness. 

278 Franklin Road Suite 123 Brentwood, TN 37027 

615-370.1730 fax: 615-370.1788 
In 1981, Mr. Stanley was promoted to Deputy Regional Administrator for OSHA's Region III. His 

primary responsibilities were to assist the regional administrator in the overall administration of the 

OSHA program. The region included ten area offices and ten district offices. Mr. Stanley was 

required to speak/lecture at numerous venues throughout Region IlIon the OSHA Act, and the 

administration of the program within Region's III jurisdiction. 

In 1987, Mr. Stanley was promoted to Regional Administrator for OSHA's Region II based in New 

York City. This region (one of the most industrialized regions in the country) included New York, 

New Jersey, Puerto Rico, and the American Virgin Islands. As the Regional Administrator, 

administering OSHA's largest region, he had the overall responsibility for enforcing the OSHA Act in 

both the Federal and State jurisdictions. He was intimately involved in the most complex cases and 

was instrumental in creating many of the current OSHA policies and procedures. 

In 1994, Mr. Stanley was appointed Deputy Assistant Secretary of Labor for the Occupational Safety 

and Health Administration. This was the highest career position in OSHA and he was responsible for 

the entire enforcement program throughout the United States in both Federal and State jurisdictions. 

Many ofthe current OSHA policies and procedures were implemented and initiated during Mr. 

Stanley's tenure as Deputy. He lectured extensively throughout the United States on Occupational 

Safety and Health programs, procedures, and policies, and was generally recognized as an expert in 

safety and health by employers' unions, and his peers in the safety and health arena. 

Effective January 15, 1996, Mr. Stanley retired from the Occupational Safety & Health Administration 

after 25 years .~nd was elected Vice President, Safety & Health for AK Steel located in Middletown, 

Ohio. AK Steel is a major integrated steel producer with approximately 9000 employees. It 

consistently led the U. S. Steel Industry in virtually every category of employee safety performance 

during Mr. Stanley's tenure. After retiring from AK Steel in February 2004, he was elected President 

ofFDRSafety located in Nashville, Tennessee. 

Mr. Stanley has recently served on the National Safety Council's Board of Directors as well as the 

National Safety Council's Executive Committee as Chairman of the Trustees. He is a member of the 

Association for Iron and Steel Technology (AIST). He is an honorary advisor to the Board of Trustees 

for the Safety and Health for Industrial Education and Labor Development (SHIELD) and also has 

served on the National Safety Council's Editorial Advisory Board. 

278 Franklin Road Suite 123 Brentwood, TN 37027 

615-370.1730 fax: 615-370.1788 
TESTIMONY AS AN EXPERT 

RPC Mechanical, Inc vs. AK Steel Corp. 

Court of Common Pleas, Butler County, Ohio 

Case No. 2003 98 2338 

Dec. 15,2004 - date of testimony 

Contract Dispute 

General nature of testimony: My testimony in this case revolved around the 

safety and health program for contractors working in AK Steel's facilities. 

Martin Chavez, et al vs. United Masonry et al 

Civil Action No. 03CA954 

Superior Court of the District of Columbia 

Deposition - Feb. 17, 2005 

Judge: Unknown 

General Nature of Case: Personal Injury Case 

General Nature of Testimony: My testimony in this case was related to the 

OSHA regulations concerning the erection and support of masonary walls in 

construction. 

Crystal Roberts vs Marion Steel Company, et al. 

Case No. 02 CV 0437 

Court of Common Pleas, Marion County, Ohio 

testimony (Deposition) Feb. 28, 2005 

Judge: Unknown 

General Nature of Case: tortlPersonal Injury 

General Nature of Testimony: My testimony in this case involved the OSHA 

requirements and recognized industry practice concerning the appropriate 

personal protective equipment worn by employees 

Lazard Rodriquez, Carmen Rodriquez vs. NeIlson Neutraceutical, Inc.; Littleford Day, 

Inc.; J. H. Day Co.; J. H. Davis Co.; and Does 1 through 50, Inclusive 

Case No. KC 043-048 0 

Superior Court of the State of California for the County of Los Angeles 

Deposition: March 30,2001 

General Nature of Case: Personal Injury 

General Nature of Testimony: My testimony in this case involved lockout 

procedures 

Renee Pauley and Kelsey Pauley vs. Geoenergy International Corp., et al. 

1 
United States District Court for the Western District of Missouri 

Western Division 

August 26,2005 - Date of Testimony 

Personal Injury Case 

General Nature of Testimony: My testimony in this case related to confined space 

entry 

Charles Spurlock, et aI., vs. Buckeye Boxes, Inc., et aI. 

Court of Common Pleas of Franklin County, Ohio 

Case No. 03CV -04-04023 

Date of Testimony: 6/2/05 

Personal Injury Case 

General Nature of Testimony: My testimony in this case related to machine 

guarding. 

James Manganella, Plaintiffvs. Waterside Condominium Association, Inc., a Florida 

Corporation, et aI, Defendants 

Case No. 62-2234-CA-JBR 

Personal Injury Case 

General Nature of Testimony: My testimony in this case is related to construction 

"material lifts". 

Kenneth Johnson, Sr., et aI., plaintiffs vs. Bay West Corporation and GL&V Paper Group 

Canada Inc., defendants 

Date of testimony: May 23,2006 

United States District Court, Southern District of Ohio, Cincinnati Division 

Case No. 1:04-CV-091 

Judge: Susan J. Dlott 

General nature of case: Personal Injury 

General nature of testimony: Machine Guarding 

State of Ohio Ex ReI City of Cleveland Director of Law, plaintiffvs. General 

Environmental Mgmt. LLC, et aI, defendant 

Date of testimony: June 15,2006 

Cleveland Municipal Court, Housing Division, Cuyahoga County, OR 

Case No. 06-CVG-12977 

General Nature of Case: Issues surrounding hot work programs 

Cleveland, OR 44114 

2 
William Dobson, Plaintiffvs. W.O. Grubb Steel Erection, Inc., et al 

Date of Testimony: November 17, 2006 

The Circuit Court of Maryland for Prince George's County 

Case No. CAL05-24454 

General Nature of Case: Personal Injury 

General Nature of Testimony: Multi-employer Worksite Policy/OSHA 

Requirements 

Tropicana Parking Garage Collapse Litigation 

Superior Court of New Jersey 

Docket NO. ATLL 1551.04 

General Nature of Case: Personal Injury 

General Nature of Testimony: Multi-employer Worksite/OSHA Regulations 

Melanie Gray as Personal Representative of the Estate of Vernon Gray, and a Next 

Friend of Adrian Gray, a minor, Plaintiffs vs. American Buckle Company V.I., d/b/a 

National Frame Rail Company, and Armco Inc., d/b/a AK Steel, defendants 

Date of Testimony: March 6, 2007 

District Court of Cooke County, Texas 

Cause No. 03-421 

General Nature of Case: Personal Injury 

General Nature of Testimony: OSHA Regulations concerning Fall Protections, 

Exposure to Electric Conductors and Lock -Out 

John Halek, Plaintiff vs. Kingsport Development, LLC 

Circuit Court of Cook County 

Case No. 02 L 8695 

General Nature of the Case: Personal Injury 

Defendants 

General Nature of Testimony: Fall Protection and Multi-employer worksite 

James Terry Parker and Marilyn Parker, Plaintiffs vs. The Lamar Company, LLC, 

Defendants, Lamar Advantage GP Co. LLC, Third-Party Plaintiffvs. Extreme Sign 

Maintenance, Third-Party Defendant 

Circuit Court of Cook County, Illinois 

County Department - Law Division 

Case No. 02L011314 

Date of Deposition: March 30,2007 

General Nature of Deposition Testimony: OSHA Regulations and Requirements 

for Fall Protection. 

3 
Sharon Smith, Administrator of the Estate of Marvin Smith and Sharon Smith, Plaintiffs 

vs. Anthony Dewey and All Transport Co. and Thyssen Krupp Budd Company, 

Defendants 

Shelby Kentucky Circuit Court 

Case No. 04-CI-00134 

Date of Testimony: June 15,2007 

General Nature of Case: Personal Injury 

General Nature of Testimony: OSHA Regulations and Requirements 

Charles Clark, et aI, Plaintiffs vs. Wand M Kraft. Inc., et aI, Defendants 

United States District Court 

Southern District of Ohio 

Western Division 

Case No. 1 :05CV725 

Judge Arthur S. Spiegel 

Nature of Testimony: Describe my Findings and Opinion regarding an accident 

that occurred at a maritime workplace. 

Cain v. Speedy Discount Mufflers & Brakes, Inc. 

Daviess Circuit Court 

Civil Action No. 02-CI-01277 

Date of Testimony: November 28,2007 

Personal Injury Case 

General Nature of Testimony-OSHA Fall Protection Requirements 

Secretary of Labor v. Erickson Air-Crane, Inc 

Occupational Safety and Health Review Committee 

OSHRC Docket No. 07-0645 

December 6,2007: Date of Hearing Testimony for OSHA Citation 

General Nature of Testimony-Fall Protection on Tank Trucks 

Christopher D. Earnhardt v. The Martin-Brower Company 

284th Judicial District Court, Montgomery County, Texas 

Cause No. 05-07-06346-CV 

Date of Trial Testimony: January 9, 2008 

General Nature of Testimony-My Assessment of Company Safety Program 

Delores Hickman, et al. v. United Foundries, Inc. et al. 

Court of Common Pleas, Stark County, OH 

Case No.: 2007-CV 02268 

Judge Taryn Heath 

4 
Date of Deposition: March 25,2008 

Personal Injury Case 

General Nature of Testimony-Fall Protection 

Poneris v. A & L Painting, L.L.c.et al. 

Butler County Court of Common Pleas 

Case No. C V - 2004 04 1309 

Date of Trial Testimony: March 142008 

Personal Injury Case 

General Nature of Testimony - Construction Industry Fall Protection 

Harvey v. Brennan, et al. 

Indian River County Circuit Court 

Case No. 2006 0245 - CA 11 

Personal Injury Case 

General Nature of Testimony - Construction Industry Fall Protection 

Holbrook vs.Woodham, New Enterprise Stone and Lime and Robert Kimball and 

Assoc. 

United States District Court For The Western District of Pennsylvania 

Civil Action No. 3:05CV304 

Date of Testimony-June 24,2008 

Personal Injury Case 

General Nature of Testimony - Construction Industry OSHA Regulations and 

Multi-Employer Worksite Policies 

Smithfield Foods Inc. vs United Food And Commercial Workers International Union 

United States District Court For The Eastern District Of Virginia Richmond Div. 

Civil Action No. 3:07CV641 

Date of Testimony - July 18 2008 

General Nature of Testimony - Evaluation of the company Safety and Health 

Program 

Faulkner v. Wheeling-Nisshin, Inc 

Brooke County W V Circuit Court 

Civil Action No. 07-C-255 

Date of Testimony - February 23,2009 

General Nature of Testimony- Walking/Working Surface Fall Protection 

Jason Jenkins v. Sperian Eye & Face Protection, Inc.,Et Al 

5 
District Court of Harris County Texas 295th Judicial District 

Case No. 2007-73468 

Date of Testimony - June 4 2009/June 25 2009 

General Nature of Testimony - Personal Protective Equipment Requirements 

And Hazard Assessments 

OSHA, Division of Occupational Safety and Health vs. Progressive Services, Inc. dba, 

Progressive Roofing 

Industrial Commission of Arizona 

Case No. S2603-312623762 

Deposition-l 0112/09 

Hearing-1/27 110 

ADOSH Citation 

General Nature of Testimony-My testimony in this case involved Fall Protection. 

Gigi Goodson, et al. vs. SPX Corporation, et al 

Cause No. 2007-12-0916, 2nd Judicial District Court, Cherokee County, Texas 

Deposition-6/23/09 

Personal Injury Case 

General Nature of Testimony-Multi-employer worksite, confined space entry, 

training of employees and hazard assessment. 

Kim Dodson, Plaintiffvs. Bunge North America, Inc., et aI, Defendents 

Civil Action No.: CV-2008-900144 

Circuit Court of Morgan County, Alabama 

Deposition-911109 

Personal Injury Case 

General Nature of Testimony-Lockout/Tagout and Machine Guarding 

Secretary of Labor v. Thomas Industrial Coatings 

Occupational Safety and Health Review Commission 

Deposition-9/5/08 

Hearing-9/25/08 

General Nature of Testimony-Working over water/lifesaving procedures 

6