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United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 21-0541

UNITED STATES POSTAL SERVICE,

LEHIGH VALLEY PDCF,

Respondent.

DECISION AND ORDER

APPEARANCES:

For the Complainant:

Ryan C. Atkinson, Esq.

Trial Attorney

U.S. Department of Labor

Philadelphia, Pennsylvania

For the Respondent:

Mark J. Manta, Esq.

United States Postal Service

Eastern Area Law Office

Philadelphia, Pennsylvania

Sydney M. Snyder, Esq.

United States Postal Service

National OSHA Unit

Denver, Colorado

BEFORE: Carol A. Baumerich

Administrative Law Judge

I. HISTORY

In the latter months of 2020, during the height of the Covid-19 pandemic, Respondent, the 
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United States Postal Service (USPS), faced a growing problem at its Lehigh Valley Processing and 

Distribution Center Facility (the Lehigh Plant or Plant). Due to a combination of several factors, 

including the increase in absentee voting for the 2020 election, the increase in online shopping due 

to the pandemic, and the coming holiday season, the volume of mail and parcels coming into the 

Lehigh Plant for processing and distribution was growing substantially. (Tr. 311-12, 331, 493, 568, 

583-85, 597, 605-06, 648-49, 696-698, 768-69). Meanwhile, the Plant was facing major staffing 

shortages resulting from high rates of employee absences, the Plant’s apparent inability to find and 

onboard new employees, and a generous leave policy that had been instituted for Covid. (Tr. 597-

98, 600-02, 606, 611, 645, 699-700, 730-31, 735, 840-41, 871-72; RX-54). By late November of 

2020, the coalescence of these circumstances resulted in the Plant’s increasing inability to process 

and distribute the volume of incoming mail. (Tr. 86-87, 121-22, 125-26, 487-89, 602, 641-42). As 

a result, mail, parcels, and the associated materials used in processing them started to build up in 

various aisles meant for mechanical equipment, powered industrial trucks (PITs), and pedestrian 

traffic, emergency exits routes from the Plant, and in front of at least one fire alarm pull station. 

This problem was particularly noticeable in the Plant’s West and South Loading Docks (West Dock 

and South Dock). (E.g., GX-8, at 1 (Photo ID #120120_2); id. at 3 & 3A (Photo ID #120120_9)).

Several complaints were made to the Occupational Safety and Health Administration 

(OSHA) about these problems and an unconnected issue with a Delivery Bar Code and Sorter 

(DBCS) machine on the Plant’s processing floor. (Tr. 54, 66-69; JX-7, JX-10, GX-18, GX-26). 

After receiving these complaints, OSHA sent a Compliance Safety and Health Officer (CSHO) to 

inspect the Plant on two occasions, first on December 1, 2020, and again on February 10, 2021. 

(Jt. Pre-Hr’g Stmt. ¶ III (2); Tr. 54, 65-66; GX-6, at 2). On both occasions, the CSHO observed 

aisles designated for mechanical equipment, PIT traffic, and emergency exit routes in the West and 
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South Docks obstructed by various containers and materials associated with processing mail and 

parcels. (E.g., GX-8, at 1 (Photo ID #120120_2); id. at 3 & 3A (Photo ID #120120_9); id. at 6 

(Photo ID #021021_2); id. at 6 & 6A (Photo ID #021021_3); id. at 7 (Photo ID #021021_8); id. at 

7 & 7A (Photo ID #021021_5)). During the December 1st inspection, the CSHO also observed a 

fire alarm pull station blocked by a metal cage and other materials, and further discovered a 

guardrail in front of a DBCS machine that did not allow for at least 30 inches of workspace for 

technicians servicing the machine’s electrical panel. (Tr. 80-82, 246, 686; GX-8, at 4 (Photo ID 

#120120_12); id. at 5 (Photo ID #120120_17)).

On May 5, 2021, based on the CSHO’s observations during both of his inspections, OSHA 

issued three Citations to Respondent alleging violations of safety standards promulgated under the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (the OSH Act).

Citation 1, Item 1 alleged a serious violation of 29 C.F.R. § 1910.165(e) for obstructing a 

fire alarm pull station on the South Dock on December 1, 2020.

Citation 1, Item 2 alleged a serious violation of 29 C.F.R. § 1910.176(a) for obstructing 

aisles meant for mechanical equipment, PIT, and pedestrian traffic. This item alleged four 

instances of the violation, two occurring on December 1, 2020, in both the West and South Docks, 

and two occurring on February 10, 2021, in both the West and South Docks.

Citation 2, Item 1 alleged a willful violation of 29 C.F.R. § 1910.37(a)(3) for obstructing 

emergency exit routes. 1

 This item alleged four instances of the violation, two occurring on 

December 1, 2020, in both the West and South Docks, and two occurring on February 10, 2021, in 

both the West and South Docks. 

1 As issued, the Citation alleged a willful-serious violation of this standard. See Citation 8-9. At the start of the 

hearing, the Secretary moved to amend the Citation, in the alternative, as a repeat violation, if the violation is not 

found to be willful, with a commensurate reduction in the proposed penalty to $42,911. (Tr. 11-13). Respondent did 

not oppose the amendment, only the penalty for the violation if it is found to be willful. (Tr. 14).
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Citation 3, Item 2 2 alleged a repeat violation of 29 C.F.R. § 1910.303(g)(1)(i), occurring 

on December 1, 2020, for having less than 30 inches in front of electric equipment operating at 

600 volts or less.

Subtracting the proposed penalty for the withdrawn item, the three Citations proposed a 

total penalty of $193,872. (Tr. 10-11).

On June 2, 2021, Respondent filed a Notice of Contest with OSHA, thereby bringing this 

matter before the Occupational Safety and Health Review Commission (Commission).3 The 

Secretary filed her Complaint on July 23, 2021. Respondent filed its Answer on July 30, 2021, and 

its Amended Answer on March 15, 2022. A three-day hearing was held from July 11, 2022, to July 

14, 2022, in Allentown, Pennsylvania. 4 Both parties filed post-hearing briefs and reply briefs. 

The key issues for decision are as follows:

(a) Whether the Secretary has established a prima facie violation of each of the Citation 

items.

(b) For the violation of 29 C.F.R. § 1910.37(a)(3), whether the Secretary has established 

that the violation was willful or, in the alternative, a repeat violation.

2 At the start of the hearing on this matter, the Secretary moved to withdraw Citation 3, Item 1, alleging a violation of 

29 C.F.R. § 1910.157(c)(1), as a matter of prosecutorial discretion. The unopposed motion was granted. (Tr. 10-11).

3 The Commission is an independent adjudicatory agency and is not part of the Department of Labor or OSHA. 29 

U.S.C. § 661. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of 

Labor under the OSH Act and has no regulatory functions. 29 U.S.C. § 659(c).

4 The Secretary called the following witnesses on direct: (1) CSHO David Sabo; (2) John Haggerty, USPS District 

Safety Specialist for the district including the Lehigh Plant; (3) Floyd Steinmetz, a mail handler at the Lehigh Plant; 

(4) Brian Odums, a mail handler tech (M-Tech) at the Lehigh Plant; (5) Joseph Pietruch, an electronics technician at 

the Lehigh Plant; and (6) Andrew Kubat, a manual letter distribution clerk and the local president of the American 

Postal Workers Union (APWU) for the Lehigh Plant. The Secretary also called a rebuttal witness, Chad Beer, an 

APWU full-time steward at the Lehigh Plant.

The Respondent called the following witnesses: (1) Lora Halpin, USPS District Senior Safety Specialist for the district 

including the Lehigh Plant; (2) Christopher Bruno, the Acting Plant Manager of the Lehigh Plant from August of 2020 

until late December 2020; (3) Pablo Padin Gonzalez, a Manager of distribution and operations (MDO) at the Lehigh 

Plant; (4) Ivonne Ayala, the Supervisor of the Lehigh Plant’s Business Mail Entry Unit; and (5) Greg Miller, the Acting 

Plant Manager of the Lehigh Plant, beginning in January 2021, following Mr. Bruno’s departure. At the time of the 

hearing, Mr. Miller was the Lehigh Plant Executive Plant Manager.
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(c) For the violations of 29 C.F.R. §§ 1910.165(e), 1910.176(a), and 1910.37(a)(3), 

whether Respondent has met its burden of demonstrating that compliance with the 

standards was infeasible.5

(d) For the violation of 29 C.F.R. § 1910.303(g)(1)(i), if the Secretary establishes a prima 

facie showing of noncompliance with the standard, has the Secretary established the 

violation was a repeat violation.

Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence 

and arguments of counsel, the undersigned issues this Decision and Order as the findings of fact 

and conclusions of law. Based on the analysis that follows, the Secretary has met her burden of 

establishing all elements of the violations in the Citations items by a preponderance of the 

evidence. However, the instant record does not establish Respondent’s violations of 29 C.F.R. 

§ 1910.37(a)(3) were willful. The evidence is sufficient, however, to establish these were repeat 

violations. Furthermore, Respondent has failed to establish its affirmative defense of infeasibility 

or “force majeure,” asserted as to the violations of 29 C.F.R. §§ 1910.165(e), 1910.176(a), and 

1910.37(a)(3). Finally, the Secretary established a prima facie showing of Respondent’s 

noncompliance with 29 C.F.R. § 1910.303(g)(1)(i) and that the violation was a repeat violation.

Based on these findings, all the Citation items are affirmed and a total penalty of $108,057 

is assessed against Respondent.

JURISDICTION AND COVERAGE

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

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

5 Respondent asserted multiple affirmative defenses in its Answer and Amended Answer. Any defenses not pursued at 

hearing or in post-hearing briefing are deemed abandoned. See Ga.-Pac. Corp., 15 BNA OSHC 1127, 1130 (No. 89-

2713, 1991).
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section 3(5) of the OSH Act, and, if the employer timely contests the citation. 29 U.S.C. §§ 652(5), 

659(c). The parties have stipulated, and the record supports, that Respondent was an employer 

engaged in a business affecting commerce within the meaning of section 3(5) of the OSH Act. 29 

U.S.C. § 652(5); (Jt. Pre-Hr’g Stmt. ¶¶ IV (1) & (2)). Respondent also timely filed a notice of 

contest to the Citationsin this case. (Jt. Pre-Hr’g Stmt. ¶ IV (3); Tr. 10). The undersigned concludes 

that Respondent is covered under the Act and that the Commission has jurisdiction over this matter.

II. FACTUAL BACKGROUND

The Lehigh Plant & Daily Operations

The Lehigh Plant is part of the USPS and is located in a large, industrial warehouse in 

Bethlehem, Pennsylvania. (Tr. 60; JX-13, GX-24, at 2, 7, 8 13, 14, 18). The Plant’s main operation 

is to receive large shipments of mail and parcels, sort them, and then ship them out for further 

distribution and delivery. (Tr. 290-91, 306-07, 431-33, 447-48, 588-97, 689-90, 694-95; RX-57). 

The Plant operates 24 hours a day, 7 days a week, with most employees working in one of three 

shifts, known as “Tours.”6

 (Tr. 497-98, 599-600, 785). Approximately 500 employees work at the 

Lehigh Plant in various capacities on any given day. (Tr. 599-600, 882-86). 

During the relevant period in this case, the Lehigh Plant management organization was led 

by Acting Plant Manager Christopher Bruno from August 2020 until late December 2020. (GX17, at 5, 7). In January 2021, Greg Miller began as the Lehigh Acting Plant Manager. (Tr. 866; 

GX-17, at 9). The Lehigh Plant Managers reported to David Webster, USPS Division Director. (Tr. 

845-46, 865). 

Five managers reported directly to the Lehigh Acting Plant Managers: Manager of In-Plant 

Support, Maintenance Manager, and three Managers of Distribution Operations (MDOs), one on 

6 In the Plant, Bulk Mail Entry Unit (BMEU) employees work a traditional 9-to-5 shift. (Tr. 589, 758, 785).
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each Tour. (Tr. 866). At that time, Logistics and Transportation reported to the Lehigh Acting Plant 

Manager. (Tr. 872). MDO Pablo Padin Gonzalez, who testified at the hearing, worked as the Tour 

2 MDO at the Lehigh Plant.7 (Tr. 661). At that time, 15 Supervisors of Distribution Operations 

(SDOs), working on all three Tours reported to the MDOs. 

During the relevant time, other managers working at the Lehigh Plant reported directly to 

USPS District Managers, not to the Lehigh Acting Plant Manager. Business Mail Entry Unit 

(BMEU) Supervisor Ivonne Ayala, worked in the Lehigh Plant once or twice a week. Ms. Ayala 

reported to USPS District Marketing. (Tr. 756-57, 784, 868). District Safety Specialist John 

Haggerty reported to the USPS District Manager of Safety. (Tr. 141, 175, 868). 

Likewise, Human Resources (HR) was a USPS District department. (Tr. 868). Staffing for 

the Lehigh Plant was determined by the District Complement Committee, based on information 

from the Lehigh Plant regarding actual complement and Plant needs, and guidelines in the union 

contracts. (Tr. 868-70, 873-74). The Lehigh Plant management was not directly involved in hiring 

during the relevant period. (Tr. 868-71).

Four employee job classifications bear mention for purposes of understanding the events 

in this case. One employee classification is a “mail handler,” who is a USPS career employee and 

is responsible for unloading the delivery trucks that arrive at the Plant daily. (Tr. 168, 306-07, 539, 

591-92, 693). Mail handlers are trained to operate mechanical equipment, including PITs, such as 

forklifts, to move larger containers of mail and parcels.8

 (Jt. Pre-Hr’g Stmt. ¶ III (3); Tr. 168, 306-

08, 539, 592-93, 693). Mail handler techs (M-TECs), also USPS career employees, operate PITs 

7 As the Tour 2 MDO, Mr. Gonzalez managed all craft employees, mail clerks and mail handlers. He would assist 

with maintenance and, at times, transportation. (Tr. 661-62).

8 In fact, mail handlers and their part-time equivalents are the only employees trained to move mail with heavy lifting 

equipment; mail clerks and other employees are generally not trained in the use of this equipment and must rely on 

the mail handlers to move larger containers of mail. (Tr. 692-93).
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in the building collecting empty equipment, trays, tubs, sleeves, to load onto trailers for recycling. 

(Tr. 345-46). Another employee classification is a “mail clerk,” also a USPS career employee, and 

is primarily responsible for running the sorting and processing machines once mail has been 

unloaded and brought on to the Plant floor. (Tr. 291, 447-49, 452, 456-57 539; GX-24, at 13, 14, 

18). Both mail handlers and mail clerks have non-career, part-time equivalents known as “mail 

handler assistants” (MHAs) and “postal support employees” (PSEs), respectively. (Tr. 576-77, 881, 

883-84; RX-8 & 9). 

Mail and parcels are shipped into the Lehigh Plant in large trailer trucks and offloaded at 

one of two principal loading docks: the West Dock or the South Dock. (Tr. 290-91, 306, 431, 436, 

443, 465-66, 669-70, 690-91; JX-13A, GX-24, at 1, 7, 8, 21; RX-57). Additionally, “bulk mail” is

accepted by the BMEU.9 (Tr. 589, 667, 757-58, 764-65; JX-13B). Between the West Dock, South 

Dock, and the BMEU, there are approximately 38 bay doors for accepting mail and parcels at the 

Plant. (Tr. 636, 790; JX-13A). 

As many as 200 trucks deliver mail and parcels to the Lehigh Plant daily, mostly between 

the hours of 8 a.m. and 5 p.m.10 (Tr. 589-91, 690, 695). Mail and parcels are packed in various 

ways on the delivery trucks coming into the Plant. Some mail is transported in trays, other mail is 

shrink-wrapped and palletized, and some parcels that cannot be shrink-wrapped and palletized are 

transported in large, wheeled “all-purpose containers” (APCs). (Tr. 180, 340-41, 689-90, 692; RX57). The actual volume of mail delivered to and processed at the Lehigh Plant was not established 

9 Bulk mail consists of mass mailings, like coupons or political fliers. (Tr. 667-68).

10 According to Acting Plant Manager Bruno, “8:00, 9:00 in the morning [the flow of mail] starts, and about 5:00 p m., 

it pretty much is over, but you might get some sporadic stuff from the units that feed into the [P]lant.” (Tr. 582-83, 

590-91).
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at the hearing.11 (Tr. 862-64). Nevertheless, based on the estimates that were provided,12 the 

volume of mail delivered to and processed at the Plant on a typical day is substantial.

Once a truck is parked in a delivery bay of the Plant, the mail is typically handled as 

follows. The truck is first scanned by an expediter. (Tr. 591). Then, a team of three to five mail 

handlers or MHAs begin to unload the containers of mail using various equipment, including 

forklifts for the larger pallets of mail.13 (Tr. 168, 306, 431, 592-93, 694; GX-24, at 1). During the 

process of unloading the truck, the mail is scanned and then “staged ... all the way across the dock 

... and sometimes lined up by the door” so that another mail handler or MHA can pick up the mail 

and take it for sorting and processing by mail clerks and PSEs. (Tr. 594-96). Typically, the entire 

process of unloading a truck and moving all its contents to the proper machine for sorting takes 

approximately one hour, split equally between unloading the truck and moving the contents to 

various machines in the Plant. (Tr. 596-97, 694).

A description of two physical features of the Lehigh Plant is necessary to understand the 

events in this case. First, mechanical equipment, including PITs, and pedestrian traffic throughout 

the Plant, including in both the West and South Docks, is guided by yellow lines painted on the 

11 This data is available, however. According to Plant Manager Miller, the volume of processed mail is measured from 

data pulled from the Plant’s processing machines; the volume of unprocessed mail is estimated using a “standard 

conversion,” which is based on how much mail typically fits in a specific type of container and multiplying that 

number by the number of each container type. (Tr. 862-64).

12 MDO Gonzalez estimated that a typical 53-foot trailer delivering mail to the Plant can fit as many as 52 pallets of 

mail or 39 APCs of parcels. (Tr. 690-92; RX-57). This volume would then be multiplied by the approximately 150 

to 200 trucks that deliver to the Plant daily. (Tr. 695).

13 MDO Gonzalez noted that smaller pallets of mail, such as the ones depicted in the foreground of page six of exhibit 

RX-57 can be moved with a “hand jack,” i.e., it’s like

a two-inch pitchfork [that] goes in between the pallets and then you take the handle and you use it 

to lift it or to draw it. It has wheels on the front and wheels on the back, and it allows you to pull 

any type of equipment very freely, not freely completely because these are heavy pallets, but any 

person could lift or move that pallet with a hand jack. 

(Tr. 691-92; RX-57, at 6). However, larger pallets, like those in the background of page six of exhibit RX-57, require 

the use of a forklift. (Tr. 691; RX-57, at 6). APCs, though wheeled, often require the use of a “tow motor” to move. 

APCs are not motorized. Single APCs are pushed by employees. (Tr. 149, 180, 340-41, 692-93; RX-57, at 7).
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ground, lines which resemble and are used like vehicle lanes on a roadway.14 (Tr. 107, 111-12, 

179-80, 307-10, 247-48, 434-35, 453, 457; GX-8, at 3; GX-24, at 2, 14, 18). Employees are 

instructed and trained to keep these lanes clear and unobstructed. (Tr. 310, 540; RX-8, at 19-21; 

RX-9, at 19-21). Second, emergency exit routes for employees throughout the Plant are designated 

by red lines painted on the ground which enclose black-painted walkways. (Tr. 107, 201, 178, 314, 

569). Employees were instructed to use the exit routes for egress, during fire drills, and in the event 

of an emergency. (Tr. 178, 219-20, 314, 354, 569-72; RX-17). An evacuation plan was posted in 

the facility. Id. Employees are also instructed and trained to keep these walkways clear and 

unobstructed. (Tr. 168-71, 536-42; RX-8, at 19-21; RX-9, at 19-21).

DBCS 23

One of the sorting machines in use at the Lehigh Plant is Delivery Bar Code Sorter (DBCS) 

number 23, an approximately 70- to 80-foot machine located right off the South Dock, on the 

processing floor of the Plant. (Tr. 241-42, 381-82, 384; JX-13A). DBCS 23 is a 180-volt machine

designed to scan and sort mail according to various bar codes. (Tr. 241-42, 381-83). The machine 

is “horseshoe” shaped, with a “feeder” section for incoming mail, a 90-degree turn into the 

“transport” section of the machine, and another 90-degree turn into the “reader” section.15 (Tr. 

386). DBCS 23 has an electrical panel on the “front” transport section of the machine, which 

opens outward for maintenance. (Tr. 244-45, 385, 390; GX-8, at 5 (Photo ID #120120_17)). 

14 APWU Local President Kubat explained that these aisles served both PIT and pedestrian traffic: “All of the aisles 

in the facility are pedestrian aisles. There are a few aisles that PIT equipment is not allowed to use, but all of the aisles 

are pedestrian.” (Tr. 449, 453, 457). For the sake of brevity, this decision will refer to these aisles as “PIT aisles.”

15 According to electronic technician Pietruch, DBCS 23 functioned as follows: 

[S]tarting in the front, there’s a jogger they use to vibrate the mail and make sure they separate each 

mail piece. Right next to it is a feed table where they put the mail in. On the feed table is a belt 

system that will pull the mail off one piece at a time, run it through a camera that reads the bar codes. 

It decides which bin it goes to. There’s four different levels on the machine, and it will sort through 

gate systems to that particular bin. 

(Tr. 381).
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At the time relevant to the events of this case, an approximately three-to-four-foot-long 

yellow guardrail, which had been installed to protect the machine from PIT traffic, ran parallel to 

this “front” portion of DBCS 23. (Tr. 246-47, 388-89, 677, 685-87). At each end of the guardrail 

was a “three-inch square tubular post sitting on about a six-inch square steel plate ... bolted into 

the floor.” (Tr. 388; see also Tr. 680-81). Each of these posts was approximately three feet high 

and had two “V-shaped brackets,” one approximately eight inches from the ground, and the other 

approximately four inches from the top of the post. (Tr. 389, 392, 680; RX-72). The guardrails 

slid in between the two posts and themselves had complementary, inverted V-shaped brackets, 

which held the rails in place with the rails’ own weight. (Tr. 392-93, 680-81; RX-72). 

DBCS 23 requires daily maintenance for a variety of mechanical issues, including some 

emergency maintenance while the machine is still energized.16 (Tr. 383-84, 386-88, 391-92, 405-

09, 728). However, the installation of the guardrail in front of the machine left only approximately 

24 inches of space between the guardrail and the electrical panel, which opened outward toward 

the guardrail, with increasingly less space as the guardrail followed the length of the front of the 

machine. (Tr. 246, 686; GX-8, at 5 (Photo ID #120120_17)). This left little space for technicians 

to service the machine. (Tr. 258-60, 390-91). To solve this space issue, the guardrails could be 

removed by lifting them up from the V-shaped brackets on the posts. (Tr. 246-47, 394-96, 682-

84). Despite each rail’s weight, estimated between 20 to 40 pounds, a single technician was 

16 Mr. Pietruch regularly performed maintenance on DBCS 23. (Tr. 384-85). “Preventative maintenance,” which 

included feeder alignment and dusting, is performed every night while the machine is not running. (Tr. 383-84). 

During the hours DBCS 23 is operational, mail clerks or PSEs operating the machine can call maintenance to report 

specific issues. (Tr. 385). A technician will then physically inspect the machine to diagnose and address the issue. 

Many issues require the technician to access the electrical panel on the front of the machine. (Tr. 386-87, 391-92, 

405-09). Some of these issues, such as re-tightening loose bolts in the electrical panel, require DBCS 23 to be deenergized. (Tr. 386-87). For other issues, including “emergency” issues like when there is the smell of smoke coming 

from the machine, inspection of the DBCS 23 by the electronic technician is performed quickly without de-energizing 

the machine. (Tr. 391-92, 396, 405-09, 728). Adjustment of DBCS 23 machine “safety modules...for monitoring 

voltage” is performed yearly while the machine remains energized. (Tr. 387-88, 406-07).
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capable of removing the guardrails, although more commonly removal was accomplished by two 

employees so that the rails could be lifted “uniformly” to avoid getting stuck on one of the posts. 

(Tr. 395-96, 402-04, 680-81). With two employees lifting the rails, the process of their removal 

took “no time at all.” (Tr. 395; see also 681-82, 728-29). 

However, the removal of the guardrails to service DBCS 23 was far from a perfect solution 

to the lack of space between the electrical panel and the guardrail for at least three reasons. First, 

one of the rails was “slightly twisted” such that, even with two employees lifting it, the rail would 

often get stuck on the post. (Tr. 396). In such an instance, the rail would have to be dislodged, 

delaying the removal process by as long as five or ten minutes. (Tr. 394-96). Second, even with 

the guardrails removed, “[t]he post was still in the way” of technicians working on the electrical 

panel. (Tr. 391). Finally, in emergency situations, like when a mail clerk smelled smoke coming 

from DBCS 23, there was no time to de-energize the machine, let alone to remove the guardrails, 

before opening the electrical panel to investigate. (Tr. 391-92, 396, 407-08, 728).

2020 Increase in Mail and Parcel Volume; Safety Concerns

At the hearing, witness testimony about the obstructed PIT aisles and exit routes at the 

Plant focused on the time period from approximately November of 2020 to February of 2021, and 

so that time period is most relevant for purposes of the issues in this case. That said, some safety 

concerns presented by the increased mail and package volume arose earlier in 2020. One employee 

testified that he started noticing increased parcel volume at the Plant as early as April of 2020. (Tr. 

311, 331). 

The Lehigh Plant had a “Joint Labor/Management Safety and Health Committee” 

composed of members of Plant management, the USPS District Safety Specialist, and APWU and 

NPMHU union representatives, which met quarterly to discuss safety concerns raised by Plant 
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employees. 17 (Tr. 183-89, 319, 326-27, 413-16; GX-22). USPS Forms 1767 “Report of Hazard, 

Unsafe Condition or Practice” were used by Lehigh Plant employees to report safety concerns to 

management. 18 (Tr. 51, 123-24, 126-29, 147, 705, 773; GX-21). Joint Safety and Health 

Committee meeting notes reveal discussion of safety concerns, including 1767 Forms, accidents, 

and an OSHA complaint. (GX-22). Committee meeting notes, dated January 16, 2020, noted “very 

tight areas at the Christmas Annex.” 19 (GX-22, at 7). Committee meeting notes, dated March 5, 

2020, noted “trays being stacked too high on equipment.” 20 (GX-22, at 4). Committee meeting 

notes, dated July 22, 2020, noted “trays being piled really high in automation,” the July 20, 2020, 

OSHA complaint, and crowding in Bulk Mail. 21 (GX-22, at 2).

Mr. Bruno took over as Acting Plant Manager of the Lehigh Plant in early August of 2020 

to address “a small backup of mail, some parcels” and also address some budget and service issues. 

(Tr. 615). This small backup was cleared in two or three days. (Tr. 615).

On August 7, 2020, Mr. Bruno responded to a notice of Alleged Work Place Hazard that 

17 OSHA CSHO Sabo requested and obtained the meeting minutes for the committee’s meetings held in 2019 and 

2020. (Tr. 183-85; GX-22). 

18 USPS 1767 Forms requested by CSHO Sabo during the inspection, and received in evidence, related to the 

violations alleged in the Citations, are dated October 28, 2020, through December 28, 2020. (GX-21; Tr. 126-29, 257). 

A concerned employee could access the 1767 Form online or fill out a paper form, which was provided “at almost 

every entrance” of the Plant. (Tr. 705, 774). After filling out the form, the employee would take the 1767 Form to 

their direct supervisor who would investigate the alleged safety hazard. (Tr. 147, 638, 652, 705, 774). If the immediate 

supervisor could correct the safety concern on their own, they would do so, sign the form, and no further action would 

be taken. (Tr. 147, 636-38, 651-52, 705, 774; GX-21). However, if the direct supervisor could not correct the safety 

hazard, the matter would be referred to a higher member of Plant management to address the hazard. (Tr. 147, 638, 

705-06, 774; GX-21). 

19 One 1767 Form concerned “an employee operating heavy equipment while wearing headphones and dancing and 

singing loudly while driving through very tight areas at the Christmas Annex.” (GX-22, at 7). 

20 One 1767 Form concerned “trays being stacked too high on equipment. The trays were moved and all EAS were 

notified of the safety concern. . . . . The MTEC drivers need to clear the area of Gaylords and skids. The area was 

cleared, and mail handlers will be given a service talk on proper staging of MTEC.” (GX-22, at 4). 

21 Six 1767 Forms concerned “EMM trays being piled really high in automation. It restricts mule drivers from seeing 

and the trays could fall on people. A mail handler will be assigned to work on the trays.” APWU Local President 

Kubat, raised the issue that “[t]he Bulk Mail cage is being used as a storage area for delayed mail. The Bulk Mail 

people can’t move around.” (GX-22, at 2)
14

had been received by OSHA in July 2020. The notice stated a complaint had been received stating, 

in part, “[t]here has been multiple [gaylords] 22 filled with mail, empty sacks and garbage in the 

aisles over the yellow line posing safety hazard risks to all employees with management 

knowledge. For two weeks now.” (GX-18, at 1). In the response letter to OSHA,23 Mr. Bruno 

stated “[e]quipment that was impeding into the aisleways was moved. A service talk about keeping 

aisles free of obstacles was given to management and craft employees. All available employees 

received the talk as of August 4, 2020.” (Id.). Mr. Bruno also indicated that “[n]o 1767s were 

found on file relating to this concern.” 24 (Id.). 

Backlog of Mail at the Lehigh Plant

Starting in approximately early November of 2020, a number of circumstances coalesced 

that began to impede operations at the Lehigh Plant and create a significant backlog of mail and 

parcels at the facility. 

One set of circumstances substantially increased the volume of mail and parcels coming 

into the Lehigh Plant. First, November and December are always considered “peak season” for 

the USPS due to the holidays, with an attendant increase in mail and parcel volumes. (Tr. 331, 

568, 597, 698). Second, because of the ongoing Covid-19 pandemic in late 2020 and the 

concomitant circumstances resulting from the pandemic (e.g., stay-at-home orders, closed 

shopping facilities, etc.), more people were shopping online, which led to an approximate increase 

of thirty percent in parcels that needed to be processed at the Lehigh Plant. (Tr. 311-12, 331, 493, 

22 A gaylord is simply a large cardboard box, which is often stacked on pallets at the Lehigh Plant. (Tr. 333, 335, 342; 

GX-8, at 3). According to one employee, “[i]t’s a giant box where you put other boxes into, an empty box.” (Tr. 349).

23 The CSHO explained that this particular complaint was a “phone and fax” complaint, wherein, rather than OSHA 

sending a CSHO to investigate the complaint, an OSHA representative contacts the employer, advises them of the 

hazard or hazards that have been reported, and requests certification of abatement. (Tr. 44-45).

24 Review of the Joint Safety and Health Committee meeting notes and USPS 1767 Forms, predating August 7, 2020, 

corroborate this statement. (GX-21, GX-22). 
15

583-84, 605-06, 648). Third, during the 2020 election, there was an increase in absentee ballots 

and campaign mail that needed to be processed at the Plant.25 (Tr. 584-86, 648-49, 696-97, 768-

69). 

At the same time that the volume of mail and parcels coming into the Plant was surging, 

the Plant also faced a shortage of employees to process the extra volume. Perhaps most prominent 

was the number of employees calling off, or otherwise not showing up for work, increased 

substantially at the Plant during the time period at issue. (Tr. 597-98, 600-602, 606, 645, 699-700, 

735). In November of 2020, for example, data pulled from the Plant’s time and attendance 

database demonstrated nearly 300 more employee absences in November of 2020 than November 

of 2019 (from nearly 500 to nearly 800 absences reported). (RX-54).26 Meanwhile, the Plant 

faced issues with finding new temporary/seasonal and career employees to offset the increase in 

other employees calling off. (Tr. 598, 700, 871-72). And once new hires were found, the 

onboarding process took as long as one or two months because the USPS requires fingerprinting, 

background checks, drug and “suitability” tests, as well as training that could only be conducted 

in small groups at the time because of the ongoing pandemic. (Tr. 598-99, 611, 840-41). Further 

exacerbating the problem of staffing at the Plant, USPS policy at the time allowed all employees, 

temporary and career, a certain amount of “Covid leave,” which many new employees would take 

immediately after completing their onboarding process. (Tr. 598, 645, 730-31). 

25 Relatedly, because the Plant was located in Pennsylvania, a “hot spot for the election,” the Office of the Inspector 

General, postal inspectors, were present in the Lehigh Plant office. (Tr. 584-85).

26 The methodology leading to the graph depicted in RX-54 was discussed at length at the hearing and was based on 

as many as 1,500 pages of time and attendance data pulled from the USPS system. (Tr. 805). A Time and Attendance 

Control System (TACS) Report was introduced and accepted as an example of the records on which RX-54 was based. 

(Tr. 805-23; RX-42). TACS Reports for “all absences,” including mail clerks and mail handlers, at the Lehigh Plant 

for the months December, January, February, and the first pay period in March, for the years 2019, 2020, and 2021, 

were gathered. (Tr. 816-19). The voluminous absentee data gathered is depicted in the 2019, 2020, and 2021 

comparison graph. (Tr.817-826; RX-54). Based on Mr. Miller’s extensive description at the hearing, the undersigned 

is persuaded that RX-54 accurately reflects a substantial increase in the absences for all employees, including mail 

handlers and mail clerks, for the period set forth in the graph. 
16

At the hearing, Lehigh Plant management witnesses generally opined and speculated 

regarding the challenges Respondent faced when hiring temporary and career employees during 

the relevant time period between November 2020 and February 2021. However, the Lehigh Plant 

staffing and hiring was conducted by the District Human Resources Department, not by anyone at 

the Lehigh Plant. 27

The general assumptions and speculation of the Lehigh Plant managers regarding hiring, 

such as pay rates offered by USPS, pay rates offered by competing businesses, number of 

applications received, are accorded no weight. Respondent did not present a witness from the 

USPS District Human Resources Office with direct knowledge regarding hiring efforts employed 

and challenges faced. Also, other than the absentee graph (RX-54), Respondent did not present 

any business records regarding hiring, staffing, job advertisements, hiring notices, applications 

received, for USPS jobs or jobs with local competitors. (Tr. 528-29). 

The high absenteeism left Plant management severely understaffed, thereby hindering the 

processing and distribution of mail and parcels at the Plant. As Acting Plant Manager Bruno 

described the situation: “[I]t was a hodgepodge of who would come in on a daily basis whether 

you could move the mail effectively or not ... [T]here [were] days our staff was so low we were 

lucky to actually even run a machine....” (Tr. 598, 600). Mr. Bruno recounted instances where 

there were no mail handlers or MHAs at all to unload the trucks that were delivering mail to the 

Plant. (Tr. 601). MDO Gonzalez recounted instances when he would have to run some of the 

27 Human Resources (HR) was a USPS District department. (Tr. 868). The District HR managed the District 

Complement Committee. (Tr. 870-71). Staffing for the Lehigh Plant was determined by the District Complement 

Committee, based on information from the Plant regarding actual complement and Plant needs, and guidelines in the 

union contracts. (Tr. 868-70, 873-74). The District Complement Committee also determined driver hiring. (Tr. 873-

74). District HR posts positions and receives job applications. (Tr. 877). Local managers at the Lehigh Plant would 

not have information regarding the number of job applications received. Id. The Lehigh Plant management was not 

directly involved in hiring during the relevant period. (Tr. 868-71). Plant Manager Miller would have attended the 

Complement Committee meetings; however, no Complement Committee meetings were held during January and 

February 2021, due to the pandemic. (Tr. 870, 874, 876-77). 
17

Plant’s processing machines with half the typical number of mail clerks or PSEs. (Tr. 700). Mr. 

Bruno described instances where there were simply not enough employees to run the Plant’s 

processing machines at all. (Tr. 603-04). Meanwhile, the flow of mail into the Plant did not slow 

down; indeed, as recounted above, it was perhaps larger than ever. 

In the latter months of 2020, there was a convergence of increased volume of mail and 

parcels on one hand and a shortage of employees to process and distribute the incoming mail on 

the other. A significant backlog of mail and parcels emerged at the Lehigh Plant, and even the 

300,000 square-foot building housing the Plant increasingly began to run out of physical space to 

store the backlogged mail, parcels, and leftover processing materials, MTEC.28 (Tr. 86-87, 121-

22, 125-26, 487-89, 602, 641-42). 

As a result, starting in late October and throughout the month of November, employees 

began to report blocked aisles and doors throughout the Plant using the USPS 1767 Forms. (GX21, at 3-4, 7-14, 17-19, 21-25, 27, 29, 30, 32-35). 

Measures to Mitigate Obstructions in the Plant

The record establishes that the employees’ complaints about the blocked aisles and exits 

did not go completely unheeded by Plant management, who instituted multiple measures to attempt 

to address obstructions caused by the backlog of mail, parcels, and processing materials at the 

Plant. 

Spot abatement for obstructions

When alerted to specific instances of blocked aisles and exits in the Plant, management 

28 Empty equipment is referred to as MTEC. (Tr. 875). Acting Plant Manager Bruno and MDO Gonzalez both 

discussed the empty “trays” that are generated when mail has been processed and prepared for shipment from the 

Plant. (Tr. 607, 710). Mr. Bruno also described the empty conveyances that were often left over when mail has been 

fully processed for shipment, such as “bulk mail carriers,” hampers, gurneys, and APCs. (Tr. 607). Both empty 

containers and empty conveyances have to be loaded on to what are known as MTEC trailers to be shipped out from 

the Lehigh Plant to a recycling facility in Philadelphia. (Tr. 344-45, 710-712).
18

would make attempts to clear the obstructions and thus abate the associated hazards. (Tr. 228-29, 

313-14, 353-54, 605-08, 709-11). Acting Plant Manager Bruno and MDO Gonzalez recounted 

instances where an employee informed them of obstructions, and they temporarily moved the mail 

or processing materials to abate the hazard. (Tr. 605-08, 709-11; GX-26). These efforts were 

corroborated by employees from the Plant as well as the 1767 Forms submitted at the hearing, 

many of which indicate that the reported obstructions were addressed under the oversight of the 

immediate supervisor to whom they were reported. (Tr. 313-14, 353-54; GX-21, at 4, 8-14, 17-

19, 21-25). However, it was universally acknowledged that these “spot abatements” of 

obstructions in the Plant offered, at best, only temporary relief from the problem caused by the 

growing volume of mail and parcels coming into the Plant and the general lack of employees to 

process the increased volume. (Tr. 228-29, 313-14, 353-54, 363-64, 605-08, 710-12). One mail 

handler tech, who worked on the South Dock, testified that in his experience loading up a trailer 

with mail or pallets or trash would clear obstructions on the South Dock “temporarily,” for “a 

couple [of] hours.” (Tr. 363-64).

Opening of the Christmas Annex

Sometime in mid-November 2020, approximately after Veterans Day, Plant management 

opened up what was known as the “Christmas Annex,” a nearby warehouse building that was often 

opened during peak season to temporarily accommodate the influx of parcels during the holiday 

season. (Tr. 280-82, 327-28, 363, 608, 801; RX-30). Opening it at this time was considered 

opening it early. (Tr. 608). During this time period, it was mainly used for oversized parcels and 

to “cycle equipment,” both of which were shipped over to the Annex in trailer trucks. (Tr. 608). 

However, the opening of the Annex also had a limited impact on clearing the obstructions 

in the Plant. The Annex quickly filled with unprocessed parcels such that it “became gridlocked 
19

as well.” (Tr. 608, 800-03; RX-30). Due to the staffing issues, only 10 employees were assigned 

to process the mail and parcels in the Annex, when normally 40 to 60 would have been assigned. 

(Tr. 608). Further, to the extent space could be cleared in the Annex to accommodate excess mail 

from the Plant, a driver often could not be found to move the trailers of mail from the Plant to the 

Annex. (Tr. 319-20, 329, 718).

National USPS negotiations with the national unions regarding hiring temporary workers

The USPS negotiates nationwide contracts, collective bargaining agreements and 

memorandums of understanding (MOUs), with unions representing their employees, which 

contracts and agreements apply to the USPS Central Pennsylvania District29 and the Lehigh Plant. 

30 (Tr. 498-500, 880-82). The union contracts and MOUs include staffing guidelines. (Tr. 486-87, 

498-500, 869, 881-86). The contract between the USPS and the APWU included a provision that 

the number of non-career PSEs the USPS could hire was “capped,” or limited to 20 percent of the 

number of full-time regular mail clerks employed in the USPS District-wide. (Tr. 881). The 

contract further provided that the 20 percent “cap” on hiring non-career PSEs was waived during 

the peak season, typically the Saturday after Thanksgiving to January 1st, known as the “penalty 

exclusion period.” (Tr. 881; GX-17, at 4.). During the “penalty exclusion period” the USPS could 

hire as many PSEs as needed. (Tr. 486-87, 499-500, 881-82). Due to the Covid-19 pandemic, and 

the large increase in parcel volume, nationwide the USPS and APWU negotiated a MOU waiving 

the 20 percent “cap,” or limit, on hiring PSEs, beyond the normal peak season, extending the 

“penalty exclusion period.” (Tr. 498-500, 889-91, 894-95). Nationwide the USPS could hire as 

29 At the time relevant to the events in this case, the Lehigh Plant was in the Central Pennsylvania district which 

included the Lehigh Valley, Harrisburg, Wilkes-Barre, and Scranton, Pennsylvania. (Tr. 576, 882).

30 Local Lehigh Plant management and the local APWU did not have authority to negotiate contract changes, such as 

changing pay rates. (Tr. 891-92, 893-95). The APWU represents employees in the clerk craft (mail clerks), 

maintenance craft, and motor vehicle services craft. (Tr. 412). 
20

many PSEs as needed. (Tr. 498-500, 889-91). The record reveals that in 2021 the penalty exclusion 

period continued at least through March 2021. 31 Chad Beer, a full time APWU Steward, at the 

Lehigh Plant testified regarding his knowledge of the USPS and APWU MOU waiving the cap. 

His understanding was that the 20 cap was also waived for MHA hiring, between the USPS and 

the National Postal Mail Handlers Union. (Tr. 889, 894-95). 

Liberal overtime policy

The USPS’s contracts with the Unions representing employees at the Plant included 

contractual overtime limits. (Tr. 841-42). During the time relevant to this case, “there was no “cap,” 

in other words, no contract limit regarding overtime. (Tr. 841-42). The Lehigh Plant was “using 

employees to the maximum amount of overtime.” (Tr. 841-42). Plant Manager Miller testified that 

“we try not to work people more than a 12-hour day.” 

During the time period at issue, the policy at the Plant was “free overtime,” with each 

employee being able to work as many as 16 hours a shift. 32 (Tr. 643-44, 701-03, 841-42). 

However, Plant management could only require a certain amount of overtime from a given 

employee, either two or four hours.33 (Tr. 643, 701). The availability of voluntary and mandatory 

31 “[T]he seasonal temp Ees are remaining in the facility through March.” See CSHO interview of APWU Local 

President Kubat, on February 5, 202[1]. (Tr. 90; GX-17, at 4, ¶ 6.). This interview was contemporaneous with the 

extended penalty exclusion period and is credited. APWU Local President Kubat recalled the MOU or agreement 

between the USPS and APWU was effective beginning in April 2020, expiring in May 2022. (Tr. 499, see Tr. 487). 

APWU Steward Beer recalled the MOU extending the penalty exclusion period became effective in January or 

February 2021. (Tr. 895.).

32 Acting Plant Manager Bruno began working at the Lehigh Plant in August 2020, in part, to address the Plant’s 

budget. Mr. Bruno testified he was successful in getting the Plant budget under control by reducing the phenomenal 

number of high-dollar overtime hours worked by Plant employees. (Tr. 615-16). That said, a USPS Office of the 

Inspector General Audit Report (Audit Report) noted Lehigh Plant management’s commitment to staffing additional 

positions and allocating overtime to process packages at the Plant. During the auditors October 5 to 8, 2020, onsite 

audit at the Lehigh Plant, they observed a large quantity of nonmachinable outside priority mail packages that the 

Lehigh Plant management planned to send to the Scranton P&DC for processing “due to employee availability issues” 

at the Lehigh Plant. The Audit Report states that “Lehigh Valley P&DC management decided to stop sending 

nonmachinable outside priority mail packages to the Scranton P&DC and instead committed to staffing additional 

employees and allocating overtime to process them at the Lehigh Valley P&DC.” (GX-35, at 10). 

33 Acting Plant Manager Bruno and MDO Gonzalez had conflicting testimony on how many overtime hours they could 

require employees to work. Mr. Bruno indicated employees could be required to work 12-hour shifts, i.e., four hours 
21

overtime had a limited effect in reducing the backlog of mail at the Plant. Acting Plant Manager 

Bruno testified to the limits of mandating overtime. “Well, you can work people up to 12 hours. 

After that ... if you work them 12 hours seven days a week, then they’re going to break down and 

call off. You just can’t work people around the clock.” (Tr. 643).

Use of cross-craft employees

The USPS’s contracts with the unions also included guidelines regarding employees 

working outside their craft, or job classification, that the unions call “cross craft.” (Tr. 701, 739-

40). During this time, the unions representing the mail clerks and the mail handlers filed no 

grievances to get paid for “cross craft.” Everyone was working together to clear the backlog. (Tr. 

735, 740-41). Plant management brought in a variety of workers from other offices and facilities 

to try and clear the backlog of mail and parcels in the Lehigh Plant. Acting Plant Manager Bruno 

described bringing in postmasters, supervisors, customer service representatives, and rural carriers 

who were essentially “functioning as craft employees, moving mail, working different machines 

wherever we could get them.” (Tr. 606, 650). MDO Gonzalez likewise described bringing in 

employees to work cross-craft as mail clerks and mail handlers, including custodians, and also 

having mail clerks work cross-craft as mail handlers. (Tr. 700-01, 734). During the peak season, 

retired employees returned to work. (Tr. 734). MDO Gonzalez further described bringing in 

employees from other facilities to help to clear the backlog, including from Philadelphia, 

Lancaster, Scranton, Wilkes-Barre, and East Stroudsburg, Pennsylvania. (Tr. 701, 734, 741). 

of overtime, whereas Mr. Gonzalez indicated employees could only be required to work 10-hours shifts, i.e., two hours 

of overtime. (Compare Tr. 643, with Tr. 701-703). MDO Gonzalez testified that the “supplementary force” was 

required to work 12 hours daily. (Tr. 703). MDO Gonzalez also testified that a mail clerk could work up to 16 hours 

safely. (Tr. 703). Plant Manager Miller, who took over after the first OSHA inspection, stated only that “we try to not 

work people more than a 12-hour day.” (Tr. 842). Employees did volunteer to work more than 12 hours. Id. The 

resolution of this conflicting testimony is not necessary to address the issues presented by this case. Plant management 

could only mandate so many hours of overtime from a given employee. 
22

Acquisition of extra trailers

Plant management made some efforts to bring in additional MTEC trailers to remove some 

of the excess processing equipment in the Plant.34 (Tr. 151-52, 155, 157, 164, 609-10, 717). Acting 

Plant Manager Bruno testified that they rented and borrowed every trailer they possibly could, but 

it was a difficult time to get trailers. (Tr. 225, 650; GX-17, at 5). 

In addition to the scarcity of trailers, Plant management also faced a scarcity of drivers to 

take away any additional trailers once they were loaded. (Tr. 319-20, 329-30, 718, 843). Further, 

using additional trailers as storage in the “staging areas” or “yards” in the South and West Docks 

had to be balanced against the need to leave enough space for traffic to get in and out of the loading 

docks. (Tr. 737, 798-99, 864-65). In other words, adding too many static trailers for the purpose 

of storage ran the risk of “gridlock[ing]” the yards and halting the delivery and distribution of mail 

and parcels to and from the Plant. 35 (Tr. 737).

Shelving

Mr. Bruno ordered approximately 60 feet of shelving “for the cardboard and the tubs that 

were having to be on the floor.” (Tr. 151-52, 155, 157, 164). However, the shelving did not offer 

any immediate relief to the backlog of mail in the Plant because it “took months to go up ....” (Tr. 

34 MDO Gonzalez and Plant Manager Miller both emphasized that storage of mail anywhere at the Plant was 

disfavored, with the emphasis being to “process it as it comes in and get it back out.” (Tr. 841; see also Tr. 370, 717). 

Thus, the focus was on acquiring additional MTEC trailers to remove the excess processing equipment, like mail trays 

or cardboard boxes, from the floor of the Plant, although this equipment could sometimes be “mixed” with processed 

mail. (Tr. 151, 609-10).

35 The testimony offered at the hearing on how many, if any, additional trailers could have been parked in the yard of 

the Plant was inconsistent and inconclusive. A mail handler tech acknowledged that 42 trailers were already being 

parked in the yards and there would be no more room for additional trailers. (Tr. 370-73). MDO Gonzalez was of the 

opinion that the yards could accommodate “80-to-90 and nothing else,” meaning if he “gridlocked” the loading docks. 

This included 38 trailers at dock doors and an additional 40 to 60 trailers in the yard. (Tr. 737). MDO Gonzalez 

recalled that three to four MTEC trailers stayed at the facility. (Tr. 717, 738-39). Plant Manager Miller estimated that 

42 trailers were parked in the yards when he took over management of the Plant in January of 2021, and he opined 

that no more trailers could be parked in the yards without gridlocking them. (Tr. 799, 875). This collective testimony 

reveals that the Plant’s yards had an upper limit as to how many trailers, and therefore how many additional trailers, 

they could accommodate before running out of space.
23

152).

Two More OSHA Complaints & OSHA’s First Inspection

Ultimately, none of the measures implemented by Plant management, alone or together, 

adequately addressed the obstructions caused by the backlog of mail and parcels at the Lehigh 

Plant. Several employees testified that they frequently observed blocked aisles and exits from the 

time the volume started to pick up in late 2020. (Tr. 310-11, 348, 355-58, 431-51; GX-24, at 1, 2, 

7, 8, 13). These observations are corroborated by the 1767 Forms submitted at the hearing. (GX21, at 3, 7, 8, 9, 10, 11, 12).

On November 12, 2020, OSHA received a second complaint about blocked aisles at the 

Lehigh Plant. Particularly, the complaint alleged:

Trays are piling up in automation, in every aisle [to South Dock]. Some stacks are 

over 5 feet tall making it difficult to see into the aisle. Trays are stacked around the 

machines making it difficult for maintenance personnel to get to machines. Drivers 

are hitting stacks of trays with containers causing the trays to fall in the aisle.

(GX-26, at 4).

In response,36 in a letter dated November 19, 2020, Acting Plant Manager Bruno certified 

correction of these conditions as follows:

Areas in the plant were determined to be congested with empty trays due to the 

unusually high mail volume that the plant has been experiencing. All areas that 

were identified as being congested, including [Automation]... and the [S]outh 

[D]ock were immediately abated and cleared of all empty equipment. The empty 

equipment (trays) were stacked, processed and moved to a staging area designated 

for empty equipment. They were then loaded on trailers and removed from the 

plant property.

Further, the Plant Manager has instituted measures in order to prevent further 

congestion, when mail volume is high. These control measures, including the 

painting of additional lines[,] will assure the proper flow of empty trays all the way 

through their removal from the workroom floor.

36 This complaint to OSHA was also handled by the “phone and fax” method, rather than OSHA sending a CSHO to 

investigate the reported hazards. 
24

(Id. at 1). Mr. Bruno again indicated that “[n]o 1767s were found on file relating to this concern.” 

(Id.). 

By letter to OSHA, dated November 26, 2020, APWU Local Union President Kubat 

disputed Mr. Bruno’s representation that the hazard of empty trays piling up in the Automation 

aisles had been abated in a manner to prevent the same hazard from recurring. Mr. Kubat stated 

the APWU finds Acting Plant Manager Bruno’s “response to be woefully inadequate. Yes, the 

employer did clear most of the trays upon notification of the OSHA complaint. However, the 

hazard had not been abated and the piles of trays are accumulating again. Nothing in the employer’s 

response to the complaint indicates how they will prevent this hazard from returning.” (GX-26, at 

7). Mr. Kubat also disputed Mr. Bruno’s representation regarding the 1767 Forms. “Many 

employees had report[ed] the hazards.” (GX-26, at 8). Mr. Kubat also stated previously the 

recurring safety hazard of empty trays accumulating in Automation had been addressed by the 

USPS assigning an employee to the “tray removal position,” already in existence.37 (Tr. 421-28; 

GX-26, at 7, 8).

Several 1767 Forms, that predate the OSHA November 12, 2020 complaint, and Acting 

Plant Manager Bruno’s November 19, 2020 response, report safety hazards regarding the stacked 

MTEC trays in automation, blocking aisles, blocking access, creating a fire hazard.38 (Tr. 631-38, 

37 The relevant exhibit notes: 

The immediate unsafe condition, as reported to OSHA on November 12, 2020 was partially abated 

over the weekend of November 14-15, 2020. Since November 16, 2020, the unsafe condition has 

returned as stacks upon stack[s] of empty trays continue to accumulate in the automation. The 

APWU believes that management continues to leave the tray removal position unstaffed. Even if 

an employee is assigned to remove trays it is not enough to keep up with the rate that trays are being 

stacked. . . . The solution is to staff the positions, already in existence, and do not pull those 

employees off to do other duties. Allow those employees to perform the work of removing pallets 

of empty trays.

(GX-26, at 8).

38 For example, November 11, 2020, 1767 Form: “Trays are everywhere!! You can barely get to your work area. We 

cannot see out of our work area & mail is blocking dock doors! The entire work floor is a fire hazard.” (GX-21, at 9). 
25

GX-21, at 3, 7, 8, 9, 10, 11, 12). These 1767 Forms are dated October 28, 2020, November 3, and 

11, 2020. 39 Several of the 1767 Forms note the management response was to assign a mail handler 

to clear the trays, to assign a mail handler to work on MTEC. (GX-21, at 8, 9, 10, 11, 12). Review 

of the record reveals that when the USPS November 2020 letter response to OSHA was sent, Mr. 

Bruno had not implemented a sustainable solution to the safety hazard presented by the 

accumulated MTEC trays, blocked aisles, and blocked exit access, hazardous conditions likely to 

recur. (Tr. 640-41).

On November 30, 2020, a third complaint was filed with OSHA concerning “[e]mpty mail 

trays on the floor causing a tripping hazard,” and “[t]rays . . . stacked 7 feet high making it 

impossible for employees to see around corners when operating equipment.” (JX-10). The same 

complaint also reported a separate concern with DBCS 23, namely that the guardrail installed in 

front of it did not allow for adequate space to access the “main power distribution unit.” (Id.). 

The next day, OSHA sent CSHO David Sabo to investigate the complaint and inspect the Plant. 

(J. Pre-Hr’g Stmt. ¶ III(1); Tr. 54; GX-6, at 2). 

December 1, 2020, OSHA Inspection

Upon arriving at the Plant, CSHO Sabo met with Plant management, including Mr. Bruno, 

along with union officials to discuss the items addressed in the complaint. (Tr. 57-59). He 

followed the opening conference with employee interviews, with union representatives present. 

(Tr. 59). CSHO Sabo then proceeded to inspect the Plant, focusing on the West and South Docks, 

but also venturing onto the processing floor of the Plant to inspect the concern that had been 

Further example, November 11, 2020, 1767 Form: “Emergency doors blocked by multiple APCs, stacks of plastic 

pallets and Ucarts. Fire Hazard. Needs removal immediately! Blockage been there 4 weeks.” (GX-21, at 13). 

39 Notably many of the 1767 Forms, dated November 11, 2020, include a management response signed by Tour 2 

MDO Pablo Padin Gonzalez. (GX-21, at 8, 9, 10, 11, 12). Mr. Bruno testified that if the issue had been resolved by a 

Plant manager below him, he would not have seen these forms, accounting for his representation to OSHA in this 

letter that no such forms were found. (Tr. 631-38, 651-52. See Tr. 427-29, 706-07). 
26

reported regarding DBCS 23. (Tr. 59-61).

CSHO Sabo observed and documented the following while inspecting the South Dock:

• Between an emergency exit door and a rolling bay door, a fire alarm pull station 

obstructed by a “metal cage,” as well as “equipment for mail, material 

containers, and some loose debris not containerized.” (Tr. 80; GX-1, at 2; GX8, at 4 (Photo ID #120120_12)). The metal cage was “too far for a human arm 

to reach through and gain access to the fire alarm pull station.” (Tr. 82; GX-1, 

at 2). CSHO Sabo believed the obstruction of the fire alarm pull station posed a 

burn hazard to employees, as it would delay an employee from being able to 

trigger the alarm in the event of a fire. (Tr. 82; GX-1, at 2-3). He also observed 

employees working in the South Dock “in proximity to the fire alarm pull 

station.” (Tr. 85; GX-1, at 2).

• In a pathway from the sorting area of the Plant leading to the South Dock, a PIT 

aisle obstructed by a large, cardboard “gaylord” filled with mail containers and, 

further down the aisle, a metal ladder also obstructing the aisle. (Tr. 111-12; GX2, at 3; GX-8, at 3 (Photo ID #120120_9)). The CSHO observed employees 

operating PITs near this area. (Tr. 124-25; GX-2, at 3).

• In the same area, an emergency exit route completely blocked by a large, metal 

container filled with various materials. (Tr. 206-09; GX-8, at 3 & 3A (Photo ID 

#120120_9)). The CSHO observed employees operating PITs near this area. 

(Tr. 124-25; GX-2, at 3).

• In a different area of the South Dock, an emergency exit route emerging from a 

set of double doors to an emergency exit door obstructed by a caged metal cart, 

a plastic pallet leaning against the metal cart, and, behind the metal cart, another 

pallet with a cardboard box filled with various materials. (Tr. 203-04; GX-8, at 

2 (Photo ID #120120_4)).40 At a certain point along the route, CSHO Sabo 

measured only approximately 12 inches of unobstructed space in the exit route. 

(Tr. 205-06; GX-3, at 3; GX-8, at 2 (Photo ID #120120_5)).

• In a different area of the South Dock in front of a “work area with double doors,” 

several metal cages filled with mail containers completely blocking a marked 

emergency exit route. (Tr. 210-11; GX-3, at 3; GX-8, at 5 & 5A (Photo ID 

#120120_15)).

CSHO Sabo observed and documented the following while inspecting the West Dock:

• “Palletized mail,” i.e., mail shrink-wrapped onto pallets, along with containers 

and boxes blocking both PIT aisles as well as an emergency exit route. (Tr. 107-

40 The CSHO explained that his orientation when taking this photograph was with the emergency exit door situated 

behind him. (Tr. 203-04).
27

08). More particularly, he observed one location in the West Dock where the 

shared space for both the PIT aisles and the emergency exit route, which abutted 

each other at this particular location, was only approximately 12 inches. (Tr. 

108-10, 201-02; GX-3, at 3; GX-8, at 1 (Photo ID #120120_2)). Thus, both 

routes were obstructed by the pallets. (Tr. 108-10, 201-02). CSHO Sabo 

observed employees working in this area. (GX-3, at 3).

Several times during the inspection, Mr. Bruno, who accompanying CSHO Sabo for the 

inspection, acknowledged that there was simply “too much mail,” there was nowhere else for the 

mail to go, and suggested that employees operating PIT vehicles or otherwise navigating the South 

and West Docks needed to just go around the obstructions in the aisles. (Tr. 87, 121-22, 125-26, 

195, 283-84, 298-99).

CSHO Sabo also inspected DBCS 23 during his inspection on December 1, 2020. (Tr. 240-

42). Discussion of the DBCS 23 inspection is stated in the Citation 3, Item 2 Analysis below. 

Following his inspection on December 1, 2020, CSHO Sabo held a closing conference with 

Acting Plant Manager Bruno, District Safety Specialist Haggerty, and union representatives, 

during which he listed the apparent violations he had seen during his inspection. (Tr. 63-64, 125-

26, 195-96, 222-24, 617). During this closing conference, Mr. Bruno generally acknowledged the 

blocked aisles and exit routes but again stated to the effect that “there was nowhere else to put the 

stuff.” (Tr. 196). Regarding the obstructed egress routes, CSHO Sabo discussed with Acting Plant 

Manager Bruno the OSHA standard 1910.37(a)(3), the minimum width for egress, and how that 

minimum width was not available. (Tr. 223). During the walk-around inspection, they observed 

the hazard of the obstructed aisles. CSHO Sabo asked Mr. Bruno how an employee was to exit 

when the exit aisle was obstructed. Mr. Bruno “said the employee should go around the 

obstruction.” Id. During a subsequent OSHA interview, Mr. Bruno reiterated the same response, if 

the exit aisle was obstructed the employee should go around the obstruction. This was not 

explained to employees as an alternative to the published emergency evacuation plan. Id. (GX-17, 
28

at 6).

Change in Acting Plant Manager

After OSHA’s December 1st inspection of the Plant, the problems faced by Plant 

management remained largely unchanged. Although the 2020 election had since passed, the 

increase in the volume of mail and packages at the Plant as a result of peak season and increase in 

online shopping remained unchanged. (Tr. 311-12, 331, 493, 568, 583-84, 597, 605-06, 648, 698). 

Meanwhile, absenteeism at the Plant spiked in December of 2020, with almost 900 employee 

absences, including mail handlers and mail clerks, (an increase from approximately 600 the 

previous year), and, although absences dropped in January and February of 2021 to only 700, they 

remained higher than the previous year for both months. (RX-54). Employees continued to report 

additional instances of obstructions in the Plant throughout the month of December, including 1767 

Forms.41 (Tr. 452-67; GX-21, at 27, 32-35; GX-24, at 14, 18, 19, 21).

On December 23, 2020, Mr. Bruno left for vacation. That was his final workday at the 

Lehigh Plant. (Tr. 626). In early January 2021, he was replaced by Mr. Miller as Acting Plant 

Manager. (Tr. 611, 624, 626, 629-31). After he began at the Lehigh Plant, no one informed Mr. 

Miller about the previous December 1, 2020, OSHA inspection, until the subsequent inspection on 

February 10, 2021. (Tr. 627, 630-31, 844-46). No one informed Mr. Miller that 1767 Forms had 

been received regarding obstructed aisles and exit routes. (Tr. 845). 

What Mr. Miller did learn when he started as the Plant Manager was that a significant 

number of staff, particularly management staff, were absent due to Covid.42 (Tr. 796-97). 

41 For example, December 2, 2020, 1767 Form: “Aisle on East Side of Bldg completely blocked by boxes full of 

packages. No exit, where it is clearly marked that it is an evacuation route. This is a safety hazard!! (on the way out 

of work.)” (GX-21, at 27).

42 Mr. Miller estimated that “95 percent” of management was out due to Covid infections when he first started. (Tr. 

796). The only managers onsite were himself, “one other Supervisor of Distribution Operations, and two Acting 

Supervisors of Distribution Operations.” (Tr. 796-97). As to the remainder of the staff, Mr. Miller found “[t]he overall 
29

Moreover, his inspection of the Plant revealed “large volumes of mail on the floor in containers 

and also excess equipment ... which needed to be removed from the floor ...”, as well as an 

abnormally large number of unprocessed parcels being stored in the Annex. (Tr. 799-800; RX30). Mr. Miller also found that there were 42 trailers staged in the Dock’s yards containing either 

incoming or outgoing mail. (Tr. 797-99). In short, the situation at the Plant had not improved in 

the month following OSHA’s December 1st inspection; in fact, Mr. Miller had never encountered 

a situation like the one at the Lehigh Plant in his 36-year career with the USPS. (Tr. 804).

Mr. Miller attempted to address the obstructions in the Plant with many of the same 

measures utilized by Mr. Bruno but confronted similar limitations on their efficacy. These 

included: spot abatement of specific obstructions, removal of empty equipment for disposal or 

recycling (Tr. 861-62); and a continued liberal overtime policy. (Tr. 841-42). As to additional 

trailers to help clear the Plant, Mr. Miller found “[t]here was no place really to put additional 

trailers without blocking the flow of the volume coming in and out” of the Plant. (Tr. 799). Mr. 

Miller also believed it would take “months” to acquire any new storage space, as it had for the 

Annex. (Tr. 841). All the while, truckloads of mail and parcels continued to be delivered to the 

Lehigh Plant. (Tr. 842-43).

Another OSHA Complaint & OSHA’s Second Inspection

Acting Plant Manager Miller’s efforts at clearing the Plant of the obstructions caused by 

excess mail and parcels turned out to be as unsuccessful as his predecessor’s. On February 8, 

2021, OSHA received a fourth complaint about the Lehigh Plant concerning the following:

1. Exits routes are blocked with containers of mail and packages on the west and 

south loading docks. It has been months since two exits were accessible on either 

dock.

staffing due to Covid and callouts was extremely low in the building.” (Tr. 797).
30

2. PIT aisles are blocked on the west and south loading dock. In some areas, one PIT 

has to back up to allow the other to pass. 

3. Fire alarm pull stations and fire extinguishers are blocked on the south and west 

loading docks.

(Tr. 66-69; JX-7). In response, on February 10, 2021, CSHO Sabo returned to the Lehigh Plant to 

investigate the allegations in the fourth complaint. (J. Pre-Hr’g Stmt. ¶¶ III(1) & (2); Tr. 65-66). 

After conducting another opening conference with Acting Plant Manager Miller, District Safety 

Specialist Haggerty, and union representatives, CSHO Sabo proceeded to inspect the Plant along 

with Mr. Miller, Mr. Haggerty, and the union representatives. (Tr. 69-70).

CSHO Sabo’s second inspection revealed the following conditions regarding the West 

Dock:

• In front of two overhead doors (one red and one yellow) with aisles meant for 

two-way PIT traffic, several “palletized boxes and crates” obstructing the aisles. 

(Tr. 115-16; GX-2, at 3; GX-8, at 6 (Photo ID #021021_2)).43 The obstructions 

did not allow for PIT traffic without creating “visual” and “struck-by” hazards, 

and pedestrian traffic could only navigate the aisles by “snaking their way 

through these caverns of boxes and crates.” (Tr. 116-17).

• An emergency exit route, marked by a red line painted on the ground leading to 

a door with a clearly marked “EXIT” sign, obstructed by a “black and orange 

pallet[] with some shrink-wrapped items on top of it,” a “metal cage bin,” 

“several pallets with cardboard crates filled with material,” and to the right of 

that “another row of palletized cardboard crates in a line,” and further to the right 

“some more of those cardboard crates on pallets.” (Tr. 211-215; GX-3, at 3; GX8, at 6 & 6A (Photo ID #021021_3)).

CSHO Sabo’s second investigation revealed the following conditions regarding the South 

Dock:

• Two roll-up doors with aisles obstructed by “large cardboard boxes of mail and 

other materials that appear to be at least four feet.” (Tr. 113-14; GX-2, at 3; GX43 CSHO Sabo mistakenly identified this photo as depicting “the opposite perspective” of the obstructions he observed 

in the South Dock on February 10, 2021. (Tr. 115-16). However, the description provided in the Photo Mount 

Worksheet clearly identifies the area as the West Dock, and the photograph was clearly taken in a different area of the 

Plant. (Compare, GX-8, at 7 (Photo ID #021021_8)), with id. at 6 (Photo ID #012012_2)). Respondent has not 

contested that this photograph depicts conditions observed in the West Dock. 
31

8, at 7 (Photo ID #021021_8)). The aisles leading to these roll-up doors were 

delineated by yellow paint on the ground and were meant for two-way PIT traffic, 

with PITs meant to “go in the right-hand door [and] coming out the left-hand 

door.” (Tr. 114; GX-16). CSHO Sabo observed that PITs “could not pass through 

the aisles without first moving the material” obstructing the aisles.” (Tr. 114-15). 

• An emergency exit route, marked by a red line painted on the ground leading to 

a door with a clearly marked “EXIT” sign, obstructed by several large cardboard 

boxes and metal cages. (Tr. 215-18; GX-3, at 3; GX-8, at 7 & 7A (Photo ID 

#021021_5)).

OSHA Issues the Citations

Following the two inspections of the Lehigh Plant, OSHA ultimately issued the three 

Citations at issue in this case, discussed below. 

Citation 2, Item 1, set forth Respondent’s alleged violation of 29 C.F.R. § 1910.37(a)(3) on 

both December 1, 2020, and on February 10, 2021, by obstructing emergency exits routes in both 

the West and South Docks. (GX-3). CSHO Sabo testified regarding the classification, and 

alternative classification, regarding the alleged violations of this standard. Based on a number of 

factors, including: the previous inspection where the same conditions were observed; his 

conversations with Plant management; his interviews with Plant employees; and his review of 

outside materials provided after the inspections, including 1767 Forms, OSHA 300 logs,44 and 

meeting minutes from the Plant’s “Joint Labor/Management Safety and Health Committee,” 

Respondent’s alleged violation of this standard was characterized as willful. (Tr. 183-93). 

Alternatively, based on a previous settlement agreement between the USPS and the Secretary for 

a violation of the same standard and involving a substantially similar hazard, Respondent’s alleged 

44 “OSHA 300 logs are the employer’s reporting annually of lost time, accidents, or illnesses.” (Tr. 189); see generally

29 C.F.R. § 1904.4. Although CSHO Sabo did not notice a trend emerge from the accidents in these logs, he did 

highlight one incident which occurred between his inspections of the Lehigh Plant wherein a mail handler “[c]ould 

not fit through the [a]isle so employee got off the Walkie [a PIT] and pushed a box with his hands. When pushing this 

box, he felt a pinch in his left rib” resulting in abdomen strain on the left of the worker’s body. (JX-14, at 10 (second 

incident down)).
32

violation of this standard was characterized, in the alternative, as a repeat violation. (Tr. 11-13, 

229-34).

Lehigh Plant Safety Training and Guidance

All new employees received facility-specific new employee safety orientation within thirty 

days of beginning employment, including temporary employees. (Tr. 537-41, 554, 575-79; RX-8, 

9, 17). Safety orientation for temporary employees continued during the peak season in 2020. (Tr. 

736). 

Annually all employees, including mail handlers and mail clerks, received training 

regarding the emergency evacuation plan, routes, and procedures, means of egress, keeping exits 

clear, aisles clear, and alarm pull stations accessible and unblocked. (Tr. 168-69, 537-43, 549-57, 

576-79; RX-8, 9, 17). In 2020, the Lehigh Plant employees received five instances of training 

regarding keeping aisles, exits, and alarm pull stations clear. (Tr. 555-56; RX-17). In 2019, the 

Lehigh Plant employees also received this safety training. Id. Annual employee safety training 

received by all Lehigh Plant employees is stated in the Program Evaluation Guide (PEG) audits 

for 2020, 45 and also for 2018, 2019. 46 (Tr. 542-63; RX-17).

USPS management provides The Postal Employee’s Guide to Safety to all employees. (Tr. 

94-97). The Guide to Safety specifically states that aisles, exits, passageways leading to fire exits, 

45 On March 17, 2020, the PEG audit confirmed training regarding the following PEG Audit queries: “100% of new 

employees complete the facility-specific New Employee Safety Orientation Training within 30 days of arrival.” (Q# 

3.3). “Has the facility completed Emergency Action Plan Awareness training? (Completion by 100% of employees 

required by OSHA).” The answer and corrective action columns, regarding this query, state: “No. not sure about 

100%.” (Q# 3.9). “Have all employees received the Fire Prevention General Awareness talk? (Completion by 100% 

of employees required by OSHA).” (Q# 3.21). “Is the Emergency Action Plan (fire/emergency reporting procedures 

and evacuation routes) current and available for employee review? (EAP may be communicated verbally if < 10 

employees).” (Q# 2). “Are manual fire alarm pull stations accessible (not blocked)?” (Q# 7.1). (Tr. 553-54, 572; RX17).

46 The 2019 PEG Audit confirms Lehigh Plant employees received the same training, on April 18 and May 1, 2019, 

albeit with questions phrased a bit differently. (Tr. 549-52; RX-17). See PEG Audit questions for 2019 Q#s 5.1, 8.2, 

8.3, 19, 26, 4, 7, 9, and 10. (RX-17).
33

exit doors, and fire alarm stations routes must be kept clear, unobstructed, and accessible at all 

times. (Tr. 94-97; JX-8, at 20, 27). All mail clerks and PSEs receive an One-the-Job Training 

Workbook, which instructs that new employee training provide a tour of the facility, including 

emergency exits, and a discussion of evacuation procedures, and means of egress, keeping aisles 

clear. (Tr. 537-38, 575-79; RX-8, at 19-21). Likewise, all mail handlers and MHAs receive a 

similar One-the-Job Training Workbook. (Tr. 538-40, 575-79; RX-9, at 19-21.)

III. ANALYSIS

All of the Citation items charge violations of standards promulgated by OSHA. “To 

establish a violation, the Secretary must prove that the cited standard applies, there was a failure 

to comply with the standard, employees were exposed to the violative condition, and the employer 

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

Maxim Crane Works, No. 17-1894, 2021 WL 2311880, at *1 n.4 (O.S.H.R.C., May 20, 2021).

Before addressing the merits of the Citation items, the undersigned notes that in its posthearing brief Respondent has, by and large, not challenged any of the four elements (applicability, 

noncompliance, exposure, and knowledge) for the majority of the Citation items, with the 

exception of the noncompliance element of the violation of 29 C.F.R. § 1910.303(g)(1)(i). Resp’t 

Br. 31-32. In the same vein, Respondent has only challenged the classifications of the 29 C.F.R. 

§§ 1910.37(a)(3) and 1910.303(g)(1)(i) violations.47 Resp’t Br. 26-28, 32; Resp’t Reply Br. 10-

13. Rather than contest the elements of the violations, a substantial portion of Respondent’s brief 

is devoted to arguing for its infeasibility or “force majeure” defense, which has been asserted as to 

the violations in Citations 1 and 2.48 Resp’t Br. 17-26; Resp’t Reply Br. 5-9.

47 The Act sets forth four different classifications for violations of standards promulgated pursuant to the Act: “willful,” 

“repeated,” “serious,” and “not serious.” 29 U.S.C. § 666(a) – (c).

48 Respondent’s defense is based on the backlog of mail at the Plant, the circumstances that led to it, and the Plant’s 

increasing inability to process the backlog due to those continuing circumstances. Respondent does not raise the
34

Even though Respondent has offered little argument on the elements of the violations, the 

Secretary has the burden of proof in proceedings before the Commission and must, therefore, set 

forth some evidence on each element of the violations charged. See Trinity Indus., Inc., 15 

BNA OSHC 1788, 1790 (No. 89-1791, 1992) (the Secretary has the burden of proof by a 

preponderance of the evidence); see also New River Corp. v. OSHRC, 25 F. 4th 213 (4th Cir. 2022) 

(“If (and only if) the Secretary makes out a prima facie case with respect to all four elements, the 

employer may then come forward and assert [an] affirmative defense ...”). With that principle in 

mind, the key issues raised in this case are analyzed. First, the merits of the violations of 29 C.F.R. 

§§ 1910.165(e) (the obstructed fire alarm pull station), 1910.176(a) (the obstructed PIT aisles), 

and 1910.37(a)(3) (the obstructed emergency exit routes) will be discussed, including the willful 

and repeat classifications of the violation of Section 1910.37(a)(3), both of which Respondent has 

challenged. Second, because Respondent has only asserted its affirmative defense of infeasibility 

with regard to this first set of violations, the viability and merits of its defense will then be decided. 

Finally, the elements and classification of the violation of 29 C.F.R. § 1910.303(g)(1)(i) for the 

guardrail installed in front of DBCS 23 will be discussed.

Obstructed Fire Alarms, Aisles and Exits

Citation 1, Item 1

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1910.165(e), which states: “The 

employer shall assure that manually operated actuation devices for use in conjunction with 

employee alarms are unobstructed, conspicuous and readily accessible.”

The Citation alleged that Respondent violated 29 C.F.R. § 1910.165(e) as follows:

29 C.F.R. 1910.165(e): Manual operation. The employer did not assure that manually 

affirmative defense of infeasibility as to Citation 3, Item 2, the violation of 29 C.F.R. § 1910.303(g)(1)(i). Resp’t Br. 

17-26; Resp’t Reply Br. 5-9, 13. 
35

operated actuation devices for use in conjunction with employee alarms are 

unobstructed, conspicuous and readily accessible.

a) South Loading Dock – On or about December 1, 2020, Employees were 

performing material handling tasks in this area and the installed and identified fire 

alarm pull station located near the emergency exit was obstructed by stored mail and 

therefore not readily accessible.

The Citation proposed a penalty of $8,582 for Respondent’s alleged violation of 29 

C.F.R. § 1910.165(e). 

Applicability

29 C.F.R. § 1910.155(b) states that Subpart L of Part 1910, containing standards governing

fire protection, “applies to all employments except for maritime, construction, and agriculture.” 

The standard, therefore, applies to Respondent.

Noncompliance

During his inspection on December 1, 2020, CSHO Sabo observed a fire pull station in the 

South Dock obstructed by a “metal cage,” as well as equipment for mail, material containers, and 

some loose debris not containerized.” (Tr. 80; GX-1, at 1; GX-8, at 4 (Photo ID #120120_12)). 

The metal cage was “too far for a human arm to reach through and gain access to the fire alarm 

pull station.” (Tr. 82; GX-1, at 2). Respondent has not refuted CSHO Sabo’s observations.

The Secretary has therefore proven that the fire alarm pull station in the South Dock was 

not “unobstructed” or “readily accessible” in violation of 29 C.F.R. § 1910.165(e).

Exposure

“Exposure to a violative condition may be established either by showing actual exposure 

or that access to the hazard was reasonably predictable.” Phoenix Roofing, 17 BNA OSHC 1076, 

1079 n.6 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996). Here, CSHO Sabo observed 

employees working in the South Dock “in proximity to the fire alarm pull station” who would have 
36

been unable to activate the fire alarm in the event of a fire and thereby exposed to burn hazards. 

(Tr. 82, 85; GX-1, at 2-3). Respondent has not refuted this element of the violation.

The Secretary has proven employee exposure to the hazard.

Knowledge

The Secretary can satisfy the knowledge element of the violation “by establishing that the 

employer knew or, with the exercise of reasonable diligence, could have known of the presence of 

the violative condition. Jersey Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), 

aff'd, 19 F.3d 643 (3d Cir. 1994) (Table). The actual or constructive knowledge of an employer’s 

supervisors can be imputed to the employer. Id.; Dover Elevator Co., 16 BNA OSHC 1281, 1286 

(No. 91-862, 1993).

Here, during CSHO Sabo’s inspection on December 1, 2020, he directly asked Acting Plant 

Manager Bruno about the obstructed fire pull station in the South Dock. (Tr. 87). Mr. Bruno 

acknowledged that the fire pull station was blocked but stated something to the effect that “there’s 

just nowhere else to put the mail.” (Tr. 87; GX-1, at 3). Respondent has not contested the 

Secretary’s evidence on this element of the violation. Mr. Bruno therefore had actual knowledge 

of the violative condition, which is imputed to Respondent. Jersey Steel Erectors, 16 BNA OSHC 

at 1164; Dover Elevator Co., 16 BNA OSHC at 1286. 

Alternatively, the record also establishes constructive knowledge of the violation. One 

employee testified that Acting Plant Manager Bruno and MDO Gonzalez worked in the same area 

of the South Dock where the fire alarm pull station was obstructed. (Tr. 316-18, 661). Another 

employee observed Mr. Gonzalez working in the South Dock daily during the relevant time period. 

(Tr. 353-54, 356-59). Mr. Bruno testified to walking the entirety of the Plant daily during the 

relevant time period. (Tr. 607-08). The CSHO’s photograph of the obstructed fire alarm 
37

demonstrates that it was not obscured but otherwise in “plain view” such that, with the exercise of 

reasonable diligence, Plant management could have uncovered the violative condition. See 

Nordam Grp., 19 BNA OSHC 1413, 1417 (No. 99-0954) (constructive knowledge established 

where supervisors were “in and out” and had a “continuous presence” in the area where the 

violative condition existed), aff’d 37 F. App’x 959 (10th Cir. 2002). Mr. Bruno and Mr. Gonzalez’s 

constructive knowledge of the violation is imputed to Respondent. Jersey Steel Erectors, 16 BNA 

OSHC at 1164; Dover Elevator Co., 16 BNA OSHC at 1286.

Classification

The Secretary has classified the 29 C.F.R. § 1910.165(e) violation as 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, serious physical 

harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010).

Here, the violation was classified as serious because “[w]ithout getting to the fire alarm 

pull station you risk the extra time in the hazard area, meaning in the fire.” (Tr. 100; see also GX1, at 2 (“The additional time required for an employee to locate and travel to another pull station 

can result in burns.”)). Respondent has not contested the classification of this violation as serious. 

The violation was properly classified as serious. Cf. Gould Publ’ns, 16 BNA OSHC 1923, 1925

(No. 89-2033, 1994) (violation properly classified as serious where locked exit door could expose 

employees to fire hazard by delaying their exit in an emergency).

Citation 1, Item 2

Citation 1, Item 2 alleged a serious violation of 29 C.F.R. § 1910.176(a), which states:

(a) Use of mechanical equipment. Where mechanical handling equipment is used, 

sufficient safe clearances shall be allowed for aisles, at loading docks, through 
38

doorways and wherever turns or passage must be made. Aisles and passageways 

shall be kept clear and in good repair, with no obstruction across or in aisles 

that could create a hazard. Permanent aisles and passageways shall be 

appropriately marked.

The Citation alleged four instances of a violation of 29 C.F.R. § 1910.176(a) as follows:

29 C.F.R. 1910.176(a): Aisle(s) and passageway(s) were not kept clear and in good 

repair with no obstruction across or in aisles that could create a hazard.

a) South Loading Dock – On or about December 1, 2020, Employees were 

performing material handling tasks on the South loading dock. Mechanical 

material handling aisles were obstructed with palletized bulk mail exposing 

employees to struck by and tripping hazards.

b) West Loading Dock – On or about December 1, 2020, Employees were 

performing material handling tasks on the West loading dock. Mechanical material 

handling aisles were obstructed with palletized bulk mail exposing employees to 

struck by and tripping hazards.

c) South Loading Dock – On or about February 10, 2021, Employees were 

performing material handling tasks on the South loading dock. Mechanical 

material handling aisles were obstructed with palletized bulk mail exposing 

employees to struck by and tripping hazards.

d) West Loading Dock – On or about February 10, 2021, Employees were 

performing material handling tasks on the West loading dock. Mechanical material 

handling aisles were obstructed with palletized bulk mail exposing employees to 

struck by and tripping hazards.

The Citation proposed a penalty of $13,653 for Respondent’s alleged violations of 29 

C.F.R. § 1910.176(a).

Applicability

By its own terms, 29 C.F.R. § 1910.176(a) applies “[w]here mechanical handling 

equipment is used ....” Mechanical equipment was used daily to move pallets of mail and parcels 

throughout the Lehigh Plant. 49 The standard applies.

49 Mechanical equipment, including PITs, used at the Plant include, manual pallet jacks, hand jacks, single, nonmotorized all purpose containers (APCs) pushed by employees, APCs pulled by tow motors or “mules,” “walkieriders,” also known as stand-up forklifts or stand-up power jacks, electric pallet movers, and forklifts. (Tr. 149, 179-

80, 334-41, 691-93; Jt. Pre-Hr’g Stmt. ¶ III(3)).
39

Noncompliance

CSHO Sabo’s observations established Respondent’s noncompliance with the standard for 

all four instances alleged in the Citation as follows.

a) On December 1, 2020, on the South Dock, in a pathway from the sorting area 

of the Plant leading to the Dock, a PIT aisle was obstructed by a large, 

cardboard gaylord filled with mail containers and, further down the aisle, a 

metal ladder also obstructing the aisle. (Tr. 111-12; GX-2, at 3; GX-8, at 3 

(Photo ID #120120_9)).

b) On December 1, 2020, on the West Dock, palletized mail, containers, and 

boxes blocked both PIT aisles, leaving only approximately 12 inches to be 

shared with the emergency exit route which abutted the PIT aisles. (Tr. 107-

10, 201-02; GX-3, at 3; GX-8, at 1 (Photo ID #120120_2)).

c) On February 10, 2021, on the South Dock, two roll-up doors with aisles 

obstructed by “large cardboard boxes of mail and other materials that appear 

to be at least four feet.” (Tr. 113-14; GX-2, at 3; GX-8, at 7 (Photo ID 

#021021_8)).

d) On February 10, 2021, on the West Dock, in front of two overhead doors (one 

red and one yellow) with aisles meant for two-way PIT traffic, several 

“palletized boxes and crates” obstructing the aisles. (Tr. 115-16; GX-2, at 3; 

GX-8, at 6 (Photo ID #021021_2)).

Respondent has not contested the conditions observed by CSHO Sabo or that they 

constituted “obstruction across or in aisles that could create a hazard” in violation of 29 C.F.R. 

§ 1910.176(a). The Secretary has established all four instances of the violations alleged in Citation 

1, Item 2.

Exposure

CSHO Sabo’s observations established employee exposure for each instance of the 

violations of 29 C.F.R. § 1910.165(e), as follows:

a) On December 1, 2020, on the South Dock, employees were operating PITs 

near the area where the PIT lanes were obstructed. (Tr. 124-25; GX-2, at 3).

b) On December 1, 2020, on the West Dock, CSHO Sabo observed employees 

working in the area where the shared space between a PIT lane and an abutting 
40

emergency exit route was only 12 inches. (GX-3, at 3).

c) On February 10, 2021, on the South Dock, CSHO Sabo observed that PITs 

“could not pass through the [PIT] aisles without first moving the material” 

obstructing the aisles. (Tr. 114-15).

d) On February 10, 2021, on the West Dock, CSHO Sabo observed PIT operators 

exposed to “visual” and “struck-by” hazards as well as pedestrians “snaking 

their way through the[] caverns of boxes and crates” obstructing the PIT 

aisles. (Tr. 116-17).

Respondent has not contested CSHO Sabo’s observations. The Secretary has therefore 

established “actual exposure or that access to the hazard was reasonably predictable” for each 

instance alleged in Citation 1, Item 2. Phoenix Roofing, 17 BNA OSHC at 1079 n.6.

Knowledge

Respondent has not contested its knowledge of the blocked PIT aisles for any of the abovealleged instances. Nonetheless, the CSHO’s photographs of the blocked PIT aisles demonstrate 

that they were open and obvious to anyone working in the West or South Docks. (GX-8, at 1 

(Photo ID #120120_2), at 3 (Photo ID #120120_9), at 6 (Photo ID #021021_2), at 7 (Photo ID 

#021021_8)). The two mail handlers who testified at the hearing both stated that Plant 

management regularly worked in the West and South Docks where the violative conditions were 

observed. (Tr. 312-14, 316-17, 332-33, 353-54, 358-59). The managers also testified to regularly 

walking the entirety of the Plant or otherwise working in the West and South Docks. (Tr. 607-08, 

619-21, 662-63, 861-62). 

The Secretary has, therefore, at the very least demonstrated that the violations were in 

“plain view” in that they were in a “conspicuous location and readily observable by anyone passing 

by ...” Atl. Battery Co., Inc., 16 BNA OSHC 2131, 2166 n.56 (No. 90-1747, 1994). These 

violations could have been discovered with the exercise of reasonable diligence of the Plant’s 

managers, thereby giving them constructive knowledge of the violations. See KS Energy Servs, 
41

Inc., 22 BNA OSHC 1261, 1268 (No. 06-1416, 2008) (constructive knowledge established where 

violations were in plain view and foreman was often present in the location of the violations). The 

managers’ constructive knowledge is imputed to Respondent. Jersey Steel Erectors, 16 BNA 

OSHC at 1164; Dover Elevator Co., 16 BNA OSHC at 1286.

Classification

The violations of 29 C.F.R. § 1910.165(e) were classified as serious. In his violation 

worksheet, CSHO Sabo noted that “[o]bstructed aisles can cause impaired line of sight for 

equipment operators. Material handling equipment incidents and impact with pedestrians can 

cause fractured bones, blunt force trauma and death.” (GX-2, at 2). At the hearing, he further 

described the potential for these “visual” and “struck-by” hazards when aisles meant for moving 

equipment are obstructed. (Tr. 116-17, 124-25). Respondent has not challenged the Secretary’s 

classification of these violations as serious. 

Accordingly, the violations were properly classified as serious. See Merchant’s Masonry, 

Inc., 17 BNA OSHC 1005, 1008 (No. 92-424, 1994) (finding a forklift violation was serious where 

“the forklift operator could not see each other around corners” because an employee struck “by the 

extended forks, even at 5 miles per hour or less, could suffer serious injury.”).

Citation 2, Item 1

Citation 2, Item 1 alleged a willful violation, or in the alternative a repeat violation,50 of 29 

C.F.R. § 1910.37(a)(3), which states, in relevant part: “(a) The danger to employees must be 

minimized. ... (3) Exit routes must be free and unobstructed. No materials or equipment may be 

placed, either permanently or temporarily, within the exit route. ...”

29 C.F.R. 1910.34(c) defines an “exit route” as

50 See note 1 above. 
42

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 of three parts: 

The exit access;51 the exit;52 and, the exit discharge.53 (An exit route includes all 

vertical and horizontal areas along the route.)

Citation 2, Item 1, alleged four instances of a violation of 29 C.F.R. § 1910.37(a)(3), exit 

routes were not kept free and unobstructed, as follows:

a) USPS Lehigh Valley Distribution Center, South Loading Dock – On or about 

December 1, 2020[,] employees were performing warehouse tasks on the loading 

dock where two exit routes are delineated, one each leading to emergency exit doors 

nearest column line D.1 and E.1. Both exit routes were obstructed by palletized 

bulk mail exposing employees to unnecessary delay in evacuating the building 

during a crisis or emergency.

b) USPS Lehigh Valley Distribution Center, West Loading Dock – On or about 

December 1, 2020[,] employees were performing warehouse tasks on the loading 

dock. Three exit routes are delineated on the West loading dock and two of the 

three exit routes, one each leading to emergency exit doors nearest column line A.8 

and A.6, were obstructed with palletized bulk mail exposing employees to 

unnecessary delay in evacuating the building during a crisis or emergency.

c) USPS Lehigh Valley Distribution Center, South Loading Dock – On or about 

February 10, 2021[,] employees were performing warehouse tasks on the loading 

dock where two exit routes are delineated, one each leading to emergency exit doors 

nearest column line D.1 and E.1. Both exit routes were obstructed by palletized 

bulk mail exposing employees to unnecessary delay in evacuating the building 

during a crisis or emergency.

d) USPS Lehigh Valley Distribution Center, West Loading Dock – On or about 

February 10, 2021[,] employees were performing warehouse tasks on the loading 

dock where three exit routes are delineated on the West loading dock, and two of 

the three exit routes, one each leading to emergency exit doors nearest column line 

51 29 C.F.R. § 1910.34(c) defines “exit access” as “that portion of an exit route that leads to an exit. An 

example of an exit access is a corridor on the fifth floor of an office building that leads to a two-hour fire 

resistance-rated enclosed stairway (the Exit).”

52 29 C.F.R. § 1910.34(c) defines “exit” as “that portion of an exit route that is generally separated from 

other areas to provide a protected way of travel to the exit discharge. An example of an exit is a two-hour 

fire resistance-rated enclosed stairway that leads from the fifth floor of an office building to the outside of 

the building.”

53 29 C.F.R. § 1910.34(c) defines “exit discharge” as “the part 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. An example of an 

exit discharge is a door at the bottom of a two-hour fire resistance-rated enclosed stairway that discharges 

to a place of safety outside the building.”
43

A.8 and A.6, were obstructed with palletized bulk mail exposing employees to 

unnecessary delay in evacuating the building during a crisis or emergency.

As a basis for the willful or repeat classification of the violation, the Citation further alleged 

that: 

The [USPS] was previously cited for a violation of this occupational safety and 

health standard or its equivalent standard 29 CFR 1910.37(a)(3), which was 

contained in OSHA inspection number 1451114, citation number 1, item number 1 

and was affirmed as a final order on May 14, 2020, with respect to a workplace 

located at 56 Hughes Rd. Madison AL 35758.

The Citation proposed a penalty of $128,726 for Respondent’s alleged willful violation of 

29 C.F.R. § 1910.37(a)(3). In the alternative, the Secretary proposed a penalty of $42,911 if the 

violations are found to be repeat violations. (Tr. 13-14).

Applicability

29 C.F.R. §§ 1910.34(a) and (b) state that Subpart E, containing standards governing “Exit 

Routes and Emergency Planning,” applies, in relevant part, as follows:

(a) Every employer is covered. Sections 1910.34 through 1910.39 apply to 

workplaces in general industry except mobile workplaces such as vehicles or 

vessels.

(b) Exits routes are covered. The rules in §§ 1910.34 through 1910.39 cover the 

minimum requirements for exit routes that employers must provide in their 

workplace so that employees may evacuate the workplace safely during an 

emergency.

The standard therefore applied to Respondent and the emergency exit routes throughout 

the Lehigh Plant.

Noncompliance

CSHO Sabo’s observations established Respondent’s noncompliance with the standard for 

all four instances alleged in the Citation as follows.

a) On December 1, 2020, on the South Loading Dock:

• In a pathway from the sorting area of the Plant leading to the Dock, an 
44

emergency exit route completely blocked by a large, metal container filled 

with various materials. (Tr. 206-09; GX-8, at 3 & 3A (Photo ID 

#120120_9)).

• In a different area of the South Dock, an emergency exit route emerging 

from a set of double doors to an emergency exit door obstructed by a caged 

metal cart, a plastic pallet leaning against the metal cart, and, behind the 

metal cart, another pallet with a cardboard box filled with various 

materials. (Tr. 203-04; GX-8, at 2 (Photo ID #120120_4)). At a certain 

point along the route, CSHO Sabo measured only approximately 12 inches 

of space unobstructed on the exit route. (Tr. 205-06; GX-3, at 3; GX-8, at 

2 (Photo ID #120120_5)).

• In a different area of the South Dock in front of a “work area with double 

doors,” several metal cages filled with mail containers completely blocking 

a marked emergency exit route. (Tr. 210-11; GX-3, at 3; GX-8, at 5 & 5A 

(Photo ID #120120_15)).

b) On December 1, 2020, on the West Dock, palletized mail, containers, and 

boxes blocked an emergency exit route, leaving only approximately 12 inches 

to be shared with the PIT aisles abutting the route. (Tr. 107-10, 201-02; GX3, at 3; GX-8, at 1 (Photo ID #120120_2)).

c) On February 10, 2021, on the South Dock, an emergency exit route, marked 

by a red line painted on the ground leading to a door with a clearly marked 

“EXIT” sign, obstructed by several large cardboard boxes and metal cages. (Tr. 

159-60, 163-64, 215-18; GX-3, at 3; GX-8, at 7 & 7A (Photo ID #021021_5)).

d) On February 10, 2021, on the West Dock, an emergency exit route, marked by 

a red line painted on the ground leading to a door with a clearly marked “EXIT” 

sign, obstructed by a “black and orange pallet[] with some shrink-wrapped 

items on top of it,” a “metal cage bin,” “several pallets with cardboard crates 

filled with material,” and to the right of that “another row of palletized 

cardboard crates in a line,” and further to the right “some more of those 

cardboard crates on pallets.” (Tr. 211-215; GX-3, at 3; GX-8, at 6 & 6A (Photo 

ID #021021_3)).

Respondent has not contested the conditions observed by CSHO Sabo or that “materials or 

equipment [were] placed, either permanently or temporarily, within the exit route[s]” in violation 

of 29 C.F.R. § 1910.37(a)(3). A mail handler testified that the West Dock exit routes were blocked 

just about every day from the end of October 2020 until February 2021. (Tr. 314-16). A mail hander 

tech testified the South Dock exit routes were blocked beginning around September 2020. (Tr. 
45

355). He testifies that South Dock exit routes were blocked every day from November 2020 to 

February 2021. (Tr. 355-56). The Secretary has established all four instances of the violation 

alleged in Citation 2, Item 1.

Exposure

CSHO Sabo’s observations established employee exposure for each instance of the 

violations of 29 C.F.R. § 1910.37(a)(3), as follows:

a) On December 1, 2020, on the South Dock, employees were operating PITs near 

the area where the emergency exit route was obstructed. (Tr. 124-25; GX-2, at 

3).

b) On December 1, 2020, on the West Dock, CSHO Sabo observed employees 

working in the area where the shared space between a PIT lane and an abutting 

emergency exit route was only 12 inches. (GX-3, at 3).

c) For the instance on February 10, 2021, on the South Dock, a Plant employee 

who worked on the South Dock in February of 2021, observed the emergency 

exit routes obstructed regularly throughout this time. (Tr. 348-50, 355-56).

d) For the instance on February 10, 2021, on the West Dock, CSHO Sabo 

interviewed an employee at the Plant, who indicated that he had worked on the 

West Dock in February and had observed the exit routes blocked on a daily 

basis. (Tr. 314-16; GX-3, at 3).

Respondent has not contested CSHO Sabo’s observations or the employees’ statements 

made to him. The Secretary has therefore established “actual exposure or that access to the hazard 

was reasonably predictable” for each instance alleged in Citation 2, Item 1. Phoenix Roofing, 17 

BNA OSHC at 1079 n.6.

Knowledge

Respondent has not contested its knowledge of the blocked emergency exit routes for any 

of the above-alleged instances. Nonetheless, the CSHO’s photographs of the blocked PIT aisles 

demonstrate that they were open and obvious to anyone working in the West or South Docks. (GX8, at 1 (Photo ID #120120_2), at 2 (Photo ID #120120_4), at 3 & 3A (Photo ID #120120_9)), at 5 
46

& 5A(Photo ID #120120_15), at 6 & 6A (Photo ID #021021_3), at 7 & 7A (Photo ID #021021_5)). 

The two mail handlers who testified at the hearing both stated that Plant management regularly 

worked in the West and South Docks where the violative conditions were observed. (Tr. 312-14, 

316-17, 332-33, 353-54, 358-59). The managers also testified to regularly walking the entirety of 

the Plant or otherwise working in the West and South Docks. (Tr. 607-08, 619-21, 662-63, 861-

62). 

The Secretary has, therefore, at the very least demonstrated that the violations were in 

“plain view” in that they were in a “conspicuous location and readily observable by anyone passing 

by ...” Atl. Battery Co., Inc., 16 BNA OSHC at 2166 n.56. These violations could have been 

discovered with the exercise of reasonable diligence of the Plant’s managers, thereby giving them 

constructive knowledge of the violations. See KS Energy Servs, Inc., 22 BNA OSHC at 1268

(constructive knowledge established where violations were in plain view and foreman was often 

present in the location of the violations). The managers’ constructive knowledge is imputed to 

Respondent. Jersey Steel Erectors, 16 BNA OSHC at 1164; Dover Elevator Co., 16 BNA OSHC 

at 1286.

Classification

The Secretary classified the violations of Citation 2, Item 1 as willful or, in the alternative, 

repeat violations. Respondent has challenged both classifications, and so each are discussed in 

turn.

Willful

In Home Rubber Co., LP, No. 17-0138, 2021 WL 3929735, at *2 (O.S.H.R.C., Aug. 26, 

2021), the Commission summarized the evidentiary showing required to sustain a willful violation 

as follows: A violation is willful if the employer’s state of mind at the time of the violation reflects 
47

either: (1) “an intentional, knowing, or voluntary disregard for the requirements of the 

[Occupational Safety and Health] Act” or (2) “plain indifference” to either the cited “OSHA 

requirements” or “employee safety.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 

90-2775, 2000) (citations omitted), aff’d, 268 F.3d 1123 (D.C. Cir. 2001); see also A.E. Staley 

Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002) (stating that “conscious 

disregard” of the Act and “plain indifference” to the Act are two “alternative” forms of 

willfulness); Active Oil Serv., Inc., 21 BNA OSHC 1184, 1188 (No. 00-0553, 2005) (“conscious 

disregard of . . . the safety and health of employees” constitutes willfulness); Bianchi Trison Corp. 

v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (applying same test). The Secretary can establish 

intentional disregard by showing that the employer “(1) had a heightened awareness of the 

applicable standard ... and (2) consciously disregarded the standard.” Jim Boyd Constr., Inc., 26 

BNA OSHC 1109, 1111 (No. 11-2559, 2016) (citations omitted). In other words, the Secretary 

can establish intentional disregard by showing that “the employer was actually aware, at the time 

of the violative act, that the act was unlawful ....” AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 

70, 74 (D.C. Cir. 2004) (citation omitted). Alternatively, the Secretary can prove plain indifference 

by showing that the employer “possessed a state of mind such that if it were informed of the 

standard, it would not care.” (emphasis and citation omitted).

“However, a good faith effort to comply with a standard or eliminate a hazard, even though 

the effort is not entirely effective or complete, may constitute a defense to willfulness.”54 L.R. 

Wilson & Sons, Inc., 17 BNA OSHC 2059, 2063 (No. 94-1546, 1997), rev’d on other grounds, 

54 A second line of Commission case law provides a defense to willfulness where an employer “exhibited a 

good faith, reasonable belief that its conduct conformed to law,” i.e., that it was in fact in compliance with 

the standard. Dover High Performance Plastics, Inc., No. 14-1268, 2020 WL 5880242, at *4 (O.S.H.R.C., 

Sept. 25, 2020). Respondent highlights only its good faith efforts to comply with the standard but does not 

argue that any member of Plant management had a good faith belief that the obstructions observed by the 

CSHO complied with the standard. Resp’t Br. 26-28.
48

134 F.3d 1235 (4th Cir. 1998). “[T]he Commission has previously found violations not willful 

where employers made efforts to establish safety rules and communicate them to employees or 

instituted other good faith measures to comply with the standards in question.” Hartford Roofing 

Co., 17 BNA OSHC 1361, 1363 (No. 92-3855, 1995) (Hartford Roofing). “An employer’s 

unsuccessful efforts to prevent a violation are sufficient to demonstrate that the employer’s state 

of mind was not one of disregard or indifference so long as the employer acted in an objectively 

reasonable manner.” Id. (citation omitted). In arguing that Respondent’s violations of 29 C.F.R. 

§ 1910.37(a)(3) were willful, the Secretary points to several instances where Plant management 

was put on notice of the issues of obstructions of aisles and exits throughout the Plant such that it 

had a “heightened awareness” of the standard and associated hazards. Sec’y Br. 34-36. The 

Secretary goes on to argue that, despite being on notice of the hazardous conditions, Plant 

management “completely ignored the requirements of the OSHA Act and showed no regard for 

employee safety.” Id. at 37. The Secretary further asserts that “[i]t was not until OSHA received 

a fourth complaint in February of 2021, that [Respondent] began to address the hazardous 

conditions. Such inaction demonstrated that USPS was plainly indifferent to employee safety and 

the requirements of the OSH Act.” Id. at 38. For its part, Respondent argues that Plant 

management made good faith efforts to address the obstructions throughout the Plant thus 

defeating any finding of “bad purpose or evil motive” necessary to establish willfulness. Resp’t 

Br. 26-28.

On the totality of the instant record, the undersigned concludes that Respondent’s violations 

of 29 C.F.R. § 1910.37(a)(3) were not willful. Although the Secretary correctly argues that Plant 

management was on notice of the hazardous conditions resulting from obstructions throughout the 

Plant, the evidence does not support the Secretary’s contentions that Plant management 
49

“completely ignored” those hazards or failed to act in response to those hazards until after OSHA’s 

inspection on February 10, 2021. Rather, as set forth below, the record establishes multiple good 

faith efforts were made to keep the aisles and exits clear throughout the Plant, even if those efforts 

were ultimately unsuccessful, thus defeating any finding of willfulness here.

Notice/Heightened Awareness

The Secretary asserts Respondent had a heightened awareness of the requirements of 29 

C.F.R. § 1910.37(a)(3), that “[e]xit routes must be free and unobstructed, that [n]o materials or 

equipment may be placed, either permanently or temporarily, within the exit route.” Sec’y Br. 33-

36. The undisputed case facts and record evidence demonstrate Respondent’s heightened 

awareness of the standard and the repeated obstruction of exit routes in the Plant. 

Heightened awareness is shown by Respondent’s prior citation for a violation of

§ 1910.37(a)(3), which citation was settled and became a final order on May 14, 2020. 55 This prior 

citation is discussed below regarding the alleged repeat classification. Sec’y Br. 34.

The Secretary asserts that Respondent had heightened awareness of the hazard presented 

by obstructed aisles and exit routes from discussions during 2020 Joint Labor/Management Safety 

and Health Committee Meetings, as early as March 2020. 56 Sec’y Br. 34-35. (Tr. 183-89; GX22). The Secretary also asserts that Respondent had heightened awareness, based on notice of the 

exit obstructions from the complaints to OSHA in July 2020 and November 2020, and 

Respondent’s acknowledgement and response to those complaints. 57 Sec’y Br. 35. (Tr. 183-89; 

GX-18, GX-26, JX-10). Further, to show Respondent’s heightened awareness, the Secretary relies 

55 This prior citation and final order, stated on the face of the willful Citation 2, Item 1, when issued, was also received 

in evidence at the hearing to support the alternative repeat classification of the violation of 29 C.F.R. § 1910.37(a)(3). 

(Sec’y Br. 34; see also Tr. 229-34; GX-9; JX-4).

56 See notes 17-21, and accompanying text, above.

57 See notes 22-24, 36-39, and accompanying text, above. 
50

on the multiple 1767 Forms submitted by employees to Respondent emphasizing the safety hazard 

presented by the obstructed exit routes. 58 Sec’y Br. 35. (GX-21, at 4, 9, 10, 11, 13, 14, 19, 21, 22-

25, 27, 29, 30, 33-35). 

Heightened awareness regarding the safety requirements stated in 1910.37(a)(3) is 

demonstrated during the December 1, 2020 OSHA inspection, when CSHO Sabo discussed with 

Acting Plant Manager Bruno and District Safety Specialist Haggerty the exit route obstructions 

observed during the inspection walk around. Regarding the obstructed egress routes, CSHO Sabo 

discussed with Acting Plant Manager Bruno the OSHA standard 1910.37(a)(3), the minimum 

width for egress, and how that minimum width was not available. (Tr. 125-26, 196, 222-23). The 

Secretary asserts that following the December 2020 OSHA inspection, the hazardous condition 

regarding the obstructed exit routes continued. Employees continued to submit 1767 Forms 

regarding the obstructed exit routes. The Secretary also notes that when Acting Plant Manager 

Miller arrived at the Plant in January 2021, he was not informed about the December 1, 2020 

OSHA inspection. Respondent had heightened awareness of the hazard presented by the violations 

of standard 1910.37(a)(3), yet when OSHA conducted the second inspection on February 10, 2021, 

the same hazardous conditions were observed. (Tr. 136-37, 221-22; JX-7). Sec’y Br. 35-37. 

In summary, record evidence demonstrates Respondent’s heightened awareness of standard 

1910.37(a)(3) requiring that exit routes remain clear and unobstructed. The record further 

demonstrates that Plant management was on notice of the continuing exit route obstructions 

throughout the Plant, especially beginning around late October 2020 through February 10, 2021. 

That said, by the time the second OSHA complaint was lodged on November 12, 2020, it is 

undisputed that, by this point, everyone at the Plant had started to notice the backlog of mail, 

58 See notes 18-21, 38-39, and accompanying text, above.
51

parcels, and processing equipment and the associated obstructions throughout the Plant. The 

evidence showing heightened awareness is largely undisputed by Respondent. Respondent focused 

on its good faith efforts to clear the obstructions throughout the Plant. Resp’t Br. 26-28. 

Good Faith Efforts

The Secretary contends that Respondent consciously disregarded standard 1910.37(a)(3), 

the violations of the obstructed exit routes, and willfully violated this standard. The Secretary 

contends that Respondent was “aware of the violations and failed to take corrective measures.” 

Sec’y Br. 33-36. The Secretary contends that the record evidence summarized above regarding 

Respondent’s heightened awareness, further reveals Respondent “acted with plain indifference to 

employee safety and the OSH Act.” Sec’y Br. 36-38. Review of the record as a whole does not 

support these contentions. The record indicates that Respondent instituted several good faith 

measures in an attempt to keep the aisles and exits throughout the Plant clear of obstructions. Resp. 

Br. 27-28.

To start, all mail clerks and mail handlers, and their non-career equivalent PSEs and MHAs, 

were trained to keep the emergency exit routes clear throughout the Plant as part of their orientation 

training. (Tr. 540-42; RX-8, at 19-21; RX-9, at 19-21). Likewise, the Postal Employee’s Guide to 

Safety, provided by Respondent management to all employees, specifically states that exit routes 

must be kept unobstructed. (Tr. 94-97; JX-8, at 20, 27). 

Respondent’s annual employee safety training received by Lehigh Plant employees, is 

stated in the Program Evaluation Guide (PEG) audit for 2018, 2019, and 2020 (Tr. 542-63; RX17). The PEG audit checklist, used regularly by safety personnel at the Plant, also establishes 

Respondent regularly trained its employees on keeping exit routes clear, with several such trainings 

occurring in 2019 and 2020. On March 17, 2020, training was confirmed regarding emergency 
52

procedures and evacuation routes. Id. Thus, Respondent had a safety rule in place that it 

communicated to its employees to address the hazard of blocked exit routes, an indicator of good 

faith. See Hartford Roofing, 17 BNA OSHC at 1363 (the fact that an employer “made efforts to 

establish safety rules and communicate them to employees” weighs against a finding of 

willfulness).

The evidence further establishes that Plant management did not ignore specific instances 

of blocked aisles and exits when the issue was brought to their attention. The 1767 Forms accepted 

into evidence all indicate that the safety issues raised by the reporting employee either were 

addressed with the manager to whom the issue was brought or directed to a higher level of Plant 

management if the issue could not be resolved with the lower-level manager. (GX-21). The 

testimonies of several witnesses corroborate Plant management’s “spot abatement” of known 

issues throughout the Plant. Acting Plant Manager Bruno and MDO Gonzalez both recounted 

instances where an employee informed them of obstructions, and they temporarily moved the mail 

or processing materials to abate the hazard. (Tr. 605-08, 709-11). APWU Local President Kubat 

documented a specific instance of an obstructed emergency exit in the South Dock, which was 

unblocked by Plant management within a few hours of it being reported. (Tr. 460-65; GX-24, at 

19 & 20). The two mail handlers who testified at the hearing also acknowledged attempts by Plant 

managers to address specific obstructions brought to their attention. (Tr. 313-14, 353-54). Even 

though these efforts were ultimately unsuccessful at keeping the exits clear throughout the Plant, 

they nonetheless represent good faith efforts to comply with the standard. See Hartford Roofing, 

17 BNA OSHC at 1363 (even unsuccessful efforts at complying with the standard can demonstrate 

good faith efforts), citing J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2209 (No. 87–2059, 1993).

Further undermining a finding of willfulness here is Respondent’s other additional good 
53

faith, albeit unsuccessful, efforts, to clear the backlog of mail and parcels and thereby eliminate 

the obstructions throughout the Plant. As recounted in detail above, these efforts included: (1) the 

early opening of the Annex in November in an attempt to alleviate the obstructions throughout the 

Plant (Tr. 280-82; 327-28, 363, 608, 801; RX-30); (2) a liberal overtime policy and the use of 

mandatory overtime (Tr. 643-44, 701-02, 841-42); (3) the utilization of “cross-craft” employees 

(Tr. 606, 650, 700-01, 741); (4) Respondent’s nationwide negotiation with the APWU, the union 

representing mail clerks, to extend the penalty exclusion period, removing the “cap,” or contract 

limit, on the number of non-career PSEs hired (Tr. 486-87, 498-500, 869, 881-92, 893-95) and (5) 

attempts to secure additional trailers and shelving (Tr. 151-57, 609-10, 717). Although 

Respondent’s efforts were ultimately “not effective or complete,” this is not a case where 

Respondent made “no good faith effort” to comply with the standard. See A.P. O’Horo Co., 14 

BNA OSHC 2004, 2013 (No. 85-369, 1991), citing Calang Corp., 14 BNA OSHC 1789, 1791

(No. 85-319, 1990).

Based on the foregoing, the undersigned finds that Respondent’s violations of 29 C.F.R. 

§ 1910.37(a)(3) were not willful.

Repeat

Although the Secretary failed to prove Respondent’s violation of 29 C.F.R. § 1910.37(a)(3) 

was willful, the Secretary alleged, in the alternative, that the violation was a repeat violation. (Tr. 

11-23, 14-15). In this regard, section 17(a) of the Act, 29 U.S.C. § 666(a), imposes heightened 

penalties for “[a]ny employer who ... repeatedly violates the requirements of ... regulations 

prescribed pursuant to this chapter ....” “A violation is properly classified as repeated under 

section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission 

final order against the same employer for a substantially similar violation.” Jersey Steel Erectors, 
54

16 BNA OSHC at 1167, citing Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979) 

(Potlatch).59 “Unless the violation involves a general standard, the Secretary establishes a prima 

facie case of similarity by showing that both violations are of the same standard.” Id. This prima 

facie showing of substantial similarity may be rebutted “by evidence of the disparate conditions 

and hazards associated with these violations of the same standard.” Id.

As a basis for a repeat violation of 29 C.F.R. § 1910.37(a)(3), the Citation set forth as 

follows:

The [USPS] was previously cited for a violation of this occupational safety and 

health standard or its equivalent standard 29 CFR 1910.37(a)(3), which was 

contained in OSHA inspection number 1451114, citation number 1, item number 

1 and was affirmed as a final order on May 14, 2020, with respect to a workplace 

located at 56 Hughes Rd. Madison AL 35758.

At the hearing, the Secretary introduced an informal settlement agreement, signed by a 

representative of USPS on June 11, 2020, stipulating to a violation of 29 C.F.R. § 1910.37(a)(3)

occurring on December 13, 2019, at a USPS facility in Madison, Alabama. (Tr. 229-34; GX-9; 

JX-4). Because this is the same standard alleged in Citation 2, Item 1, and Respondent has made 

no argument that standard qualifies as a “general standard,” the Secretary has established a prima 

facie case of substantial similarity for the repeat classification. Jersey Steel Erectors, 16 BNA 

OSHC at 1167; see also Triumph Constr. Corp., 26 BNA OSHC 1331, 1346-47 (No. 15-0634, 

2016) (ALJ) (finding that an informal settlement agreement constitutes a “Commission final order” 

59 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the circuit in 

which the violation allegedly occurred or where the employer has its principal office, and the employer also may 

appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in 

Pennsylvania, in the Third Circuit, where the Lehigh Plant is located. The Commission has held that “[w]here it is 

highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent 

of that circuit in deciding the case— even though it may differ from the Commission’s precedent.” Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000). See Reich v. D.M. Sabia Co., 90 F.3d 854, 856 (3d Cir. 1996) 

(“[We] now deem an OSHA violation to be ‘repeated’ ‘if, at the time of the alleged repeated violation, there was a 

Commission final order against the same employer for a substantially similar violation.” quoting Potlatch, 7 BNA 

OSHC at 1063)). Thus, the classification of Respondent’s violation here would not differ under Third Circuit law.
55

for purposes of repeat classification), aff’d, 885 F.3d 95 (2d Cir. 2018).

In arguing against a finding of a repeat violation, Respondent argues that “the unique events 

surrounding the alleged violations [were] not even remotely similar,” and points to the “mass of 

mail that was descending on the [P]lant,” the “absentee problem because of Covid,” and a severe 

snowstorm that “prevented numerous employees for getting to work, or caused several employees 

to call off work in advance,” in the days leading to OSHA’s second inspection on February 10, 

2021.60 Resp’t Br. 29-30.

The additional factors relied on by Respondent do not rebut the Secretary’s prima facie 

showing of substantially similarity of the violations because they do not differentiate the hazards

associated with the violations, which is the primary inquiry endorsed by the Commission. Active 

Oil Serv., 21 BNA OSHC at 1189-90; Amerisig Se., Inc., 17 BNA OSHC 1659, 1661 (No. 93-1429, 

1996), aff’d without published opinion, 117 F.3d 1433 (11th Cir. 1997). Here, as can be seen from 

the photo mounting worksheets included in exhibit GX-9, the hazards associated with the blocked 

emergency exit routes for the violation at the USPS facility in Madison, Alabama are substantially 

similar to the ones created by the blocked emergency routes at the Lehigh Plant. Compare, e.g., 

GX-8, at 3 (Photo ID #120120_9), with GX-9, at 9-10. Respondent has merely pointed to different 

circumstances which led to the violations, which are insufficient to rebut the Secretary’s prima 

facie showing of substantial similarity of the hazards presented by the violations.

61 Cf. Par Elec. 

60 Relying on a NOHRSC Graph plot of Snow Water Equivalent, Snow Depth, and Snow Melt for Mount Pocono, PA, 

between January 30, 2021 and February 15, 2021 (RX-33) and a NOAA table of 2020-2021 Eastern US Seasonal 

Snowfall Totals (RX-32), Respondent requests that the undersigned take judicial notice “that there was a major 

snowstorm in Allentown, Pennsylvania, on the days immediately preceding the February 10, [2021],” OSHA 

inspection. (Tr. 831, 838; RX-32, RX-33). Respondent’s request that judicial notice be taken is rejected. The graph 

and table in evidence are insufficiently associated with the Allentown, PA, Plant location on February 10, 2023, to 

support the notice requested. Weight is accorded to Acting Plant Manager Miller’s hearing testimony regarding the 

weather conditions. (Tr. 829, 831-33).

61 Respondent’s reliance on Wynnewood Refining Co., 27 BNA OSHC 1971 (No. 13-0644, 2019), is misplaced for a 

number of reasons. First, the majority of the Commission in that case found repeat characterization was unwarranted 

not because the employer rebutted the Secretary’s prima facie showing of substantial similarity but because a corporate 
56

Contractors, Inc., 20 BNA OSHC 1624, 1628 (No. 99-1250, 2004) (“That is the same hazard cited 

here. We therefore find, based on the evidence, that the violation was repeated.”); Armstrong Steel 

Erectors, Inc., 18 BNA OSHC 1630, 1633 (No. 97-0250, 1999). 

Although the Secretary has failed to prove Respondent’s violations of 29 C.F.R. 

§ 1910.37(a)(3) were willful, she has demonstrated that they were repeat violations.

Respondent’s Infeasibility Defense

For the violations alleged in Citations 1 and 2, namely for the violations caused by the 

obstructions throughout the Plant, Respondent has asserted an affirmative defense of 

infeasibility.62 The parties initially disagree on the proper formulation, and therefore the potential 

scope, of this defense, and whether Respondent can assert it under the circumstances presented by 

this case. The Secretary argues that Respondent must demonstrate that compliance with the 

restructuring and change in safety personnel led to the conclusion that “the record does not support the Secretary’s 

contention that there was sufficient continuity in the safety personnel at the cited entity such that there was a 

Commission final order against the same employer for a substantially similar violation.” Wynnewood Refining Co., 

27 BNA OSHC at 1979 (emphasis in original). Second, the portion of Wynnewood quoted in Respondent’s brief for 

the proposition that “other factors [can] bear on the similarity of the two violations,” came from the partial dissent of 

Commissioner Attwood, who in fact disagreed with the recent holding she was quoting from Angelica Textile Servs., 

Inc., 27 BNA OSHC 1246 (No. 08-1774, 2018). Id. at 1962 (Attwood, Comm’r, concurring in part & dissenting in 

part) (“I reiterate my view here that Angelica was wrongly decided” with regard to the issue of repeat 

characterization.). Third, the decision in Angelica itself has since been vacated by the Second Circuit, with directions 

to the Commission to dismiss the case as moot. Scalia v. Angelica Textile Servs., Inc., 803 F. App’x 542 (2d Cir. 2020) 

(unpublished), dismissed on remand, 2020 WL 4475583 (O.S.H.R.C., July 27, 2020). Thus, any proxy reliance on the 

holding in Angelica by citing to Commissioner Attwood’s discussion of the case in Wynnewood is further misplaced. 

See UHS of Westwood Pembroke, Inc., No. 17-0737, 2022 WL 774272, at *13 n.18 (O.S.H.R.C., March 3, 2022) (“The 

Second Circuit, however, has since vacated the Commission’s Angelica decision, rendering any arguments that rely 

on the rationale of that case unsupported.”).

62 Respondent’s opening brief makes a passing reference to a “corporate-wide Settlement Agreement with UPS for 

facilities engaged in the parcel delivery business (which USPS indisputably is)” in which OSHA “recognizes that in 

some instances strict maintenance of this clearance distance may not be possible at all times.” Resp’t Br. 1, citing 

OSHA Interpretation Letter, Re: “Termination of the January 2009 Corporate-Wide Settlement Agreement between 

United Parcel Service (UPS) and OSHA; Enforcement of 29 CFR 1910.37(a)(3) and 29 CFR 1910.36(g)(2)” (June 

18, 2019). This settlement agreement between a different employer and OSHA is not relevant to the present case 

before the undersigned. See, Order on Motion in Limine in U.S. Postal Service – Canovanas Post Office, OSHRC 

Docket No. 21-0794 (April 14, 2022) (Chief Judge Rooney), final decision & order directed for review (Nov. 15, 

2022) Sec’y Reply Br. Ex. A. Further, Respondent appears not to rely on this letter as a foundation for its infeasibility 

defense, but rather to highlight OSHA’s general acknowledgement “that it is not always feasible to comply with the 

standards requiring exit and exit routes remain clear and unobstructed.” Id.
57

standards was either technologically or economically infeasible and that, because Respondent 

“made no argument and presented no evidence of the costs of compliance or the effect on its 

finances” Respondent’s infeasibility defense must be “based on technological infeasibility.” Sec’y 

Br. 45-46; Sec’y Reply Br. 3-4. 

Respondent argues for a more comprehensive view of the defense which can account for 

all “existing circumstances,” including those occurring at the Lehigh Plant with regard to increased 

volumes of mail and parcels and staffing shortages, during the time period at issue here. Resp’t 

Br. 18, 20-23. Respondent cites the Commission decision in Otis Elevator Co., 24 BNA OSHC 

1081, 1087 (No. 09-1278, 2013), aff’d 762 F. 3d 116 (D.C. Cir. 2014). In that case the Commission 

stated, “To prove infeasibility, [an employer] must show by a preponderance of the evidence that 

‘(1) literal compliance with the terms of the cited standard was infeasible under the existing 

circumstances and (2) an alternative protective measure was used or there was no feasible 

alternative measure.’” [citing] Westvaco Corp., 16 BNA OSHC 1374, 1380 (No. 90-1341, 1993) 

(emphasis in original) (citation omitted). Otis Elevator., 24 BNA OSHC at 1087. Resp’t Br. 18.

Respondent further argues that the defense can apply “where the impediment to compliance 

was not economic or technological, but rather an unforeseen event, a force majeure.”63 Resp’t 

Reply Br. 1, 4-7. 

In Home Rubber, 2021 WL 3929735, at *44, the Commission summarized the evidentiary 

63 Respondent recognized that its formulation of its infeasibility defense does not fit neatly into the “technological” or 

“economical” categories forth by the Commission. (Tr. 520-22). However, nowhere prior to its reply brief, including 

in its Answer, Amended Answer, or its opening brief, did Respondent frame the defense as one of “force majeure,” 

i.e., “[a]n event or effect that can be neither anticipated nor controlled; esp., an unexpected event that prevents someone 

from doing or completing something that he or she had agreed or officially planned to do.” Force majeure, BLACK’S 

LAW DICTIONARY (11th Ed. 2019). The undersigned therefore declines to analyze Respondent’s infeasibility defense 

under the lens of a force majeure. Further, the term “force majeure” appears nowhere in Commission caselaw, and 

the only case cited by Respondent in support of the defense involved the interpretation of a force majeure clause in a 

private contract, not as a defense to an administrative violation. See Resp’t Reply Br. 6, citing JN Contemporary Art 

LLC v. Phillips Auctioneers, LLC, 507 F.Supp.3d 490, 500 (S.D.N.Y. 2020). The undersigned declines to recognize a 

new defense in this case, particularly where Respondent has not raised the defense until its reply brief.
58

showing required to establish the affirmative defense of infeasibility, as follows:

To succeed in an infeasibility defense the Respondent must show that: (1) literal 

compliance with the terms of the cited standard was infeasible; and (2) an 

alternative protective measure was used or there was no feasible alternative 

measure. Otis Elevator Co., 24 BNA OSHC 1081, 1087 (No. 09-1278, 2013), aff’d

762 F.3d 116 (D.C. Cir. 2014). Infeasibility can be either economic or 

technological. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-1167, 

1994). Respondent bears the burden of proof for this defense. See Briones Util. 

Co., 26 BNA OSHC 1218, 1220 (No. 10-1372, 2016). 

See also Pitt-Des Moines, Inc., 16 BNA OSHC 1429, 1433 (No. 90-1349, 1993) (“[I]t is 

[Respondent’s] burden to show infeasibility as an affirmative defense, not the Secretary’s burden 

to show feasibility as an element of his case.”).

The Home Rubber decision further instructs that for a Respondent “[t]o succeed with an 

economic infeasibility defense the employer must show that the cost of compliance would have 

adversely affected the company’s existence.” citing Gregory & Cook, Inc., 17 BNA OSHC 1189, 

1191 (No. 92-1891, 1995). Home Rubber, 2021 WL 3929735, at *45. Here, the US Postal Service 

does not argue economic infeasibility. Respondent presented no evidence regarding the costs of 

compliance or the effect of compliance on Respondent’s finances. Therefore, Respondent can rely 

only on the defense of technological infeasibility. 64

Here, Respondent has not met its proof burden to establish either required component of 

the infeasibility defense, that literal compliance with the terms of the cited standard was infeasible; 

or that an alternative protective measure was used or there was no feasible alternative measure. 

Literal Compliance was Possible

As to the first element, Respondent argues that it has established compliance with the 

64 The Third Circuit has made a passing reference to the infeasibility defense in E. & R. Erectors, Inc. v. Sec’y of 

Labor, 107 F.3d 157, 163 (3d Cir. 1997). However, it likened the defense to a “greater hazard (infeasibility) defense,” 

a separate defense Respondent is not arguing here. 
59

standards was “infeasible under the circumstances” due the combination of increased volume of 

mail and parcels at the Plant, the staffing shortages at the Plant, and the USPS’s obligation to 

continue to accept mail and parcels at the Plant meaning it “had no control over the volume of mail 

and packages that were at the Lehigh Valley Plant.” Resp’t Br. 23; Resp’t Reply Br. 3-4. 

Respondent further argues that “[f]aced with these circumstances, everyone at [the Plant] did what 

they could but they could not magically reduce package volume and they couldn’t disregard the 

law and force employees to come to work.” Resp’t Reply Br. 6. 

The Secretary focuses on the staffing issues at the Plant and argues that, with enough 

employees, Respondent admittedly could have cleared the backlog of mail and parcels and thereby 

the obstructions throughout the Plant. Sec’y Br. 46, 48. With the 20% cap on temporary workers 

lifted, Respondent had the ability to convene the Complement Committee and hire as much staff 

as needed but failed to do so. Id. 47-48; Sec’y Reply Br. 6-7. The Secretary also relies on the 

findings of an “Audit Report” from the USPS’s Office of the Inspector General.65 Sec’y Br. 48-

49, citing GX-25; Sec’y Reply Br. 5.

65 This report, dated April 12, 2021, is titled Delayed Mail at the Lehigh Valley, PA Processing and Distribution Center. 

(GX-25, at 1). The Secretary points out that in the Report’s findings no mention is made of the pandemic or pandemicrelated issues as a cause for delayed mail at the Plant. (Id. at 8-11). The undersigned places limited weight on this 

report in deciding the merits of Respondent’s infeasibility defense for several reasons. First, the Report itself 

acknowledges that it is not exhaustive, stating “[w]e were unable to determine all of the causes for the delayed mail 

... at the Lehigh Valley [Plant] ....” (Id. at 3). Second, according to the Report, the Lehigh Valley Plant was selected 

for an audit on the potential causes for delayed mail at the Plant “because from January 1, 2019, to August 31, 2020, 

MCV [the USPS’s application for monitoring delayed mail] reported about 605 million delayed mail pieces, or 32.2 

percent of the total pieces handled at this facility.” (Id.). Thus, the Report was commissioned to examine an existing 

problem of delayed mail at the Plant, not the backlog or aisle and exit obstructions resulting from swell of mail that 

started around November of 2020 and led to the violations at issue. Third, although the Report says that the audit was 

conducted “from September 2020 through April 2021,” it appears that most of the data was obtained from a single site 

visit conducted on October 5-8, 2020, before the period that is the focus of this case. (Id. at 13). Fourth, as Respondent

points out in its reply brief, the report does mention the pandemic in a way that supports Respondent’s argument, 

noting as follows: “A portion of the audit scope and our site observations occurred during the COVID-19 pandemic. 

The Postal Service experienced decreased employee availability and increased package volume during this time, 

which impacted operations nationwide.” (Id. at 3). Finally, as discussed above, the Report noted Lehigh Plant 

management’s commitment to staffing additional positions and allocating overtime to process packages at the Plant. 

Id., at 10. See note 32 above. This statement also supports Respondent’s argument.
60

Respondent contends that compliance with the cited standards was infeasible because 

under the Universal Service Obligation (USO), set forth in the Postal Reorganization Act of 1970, 

the US Postal Service is not permitted to turn away any mail or packages and must deliver 

everything it receives. 66 Resp’t Br. 4-5. The USO does not excuse Respondent’s failure to enforce 

the cited safety standards during the relevant time. Respondent contends its responsibility under 

USO continued without interruption. Likewise, importantly, Respondent’s responsibility to 

maintain a safe workplace place for its employees, ensuring the safety standards were enforced, 

continued without interruption during this time. Pitt-Des Moines, Inc., 16 BNA OSHC at 1434 

(“[T]he employer’s duty to comply with the standard is ongoing and applies to all employees at all 

times, not just to a particular [employee] at a particular time.”)

Respondent has failed to demonstrate that compliance with the cited standards was 

infeasible, even accounting for the circumstances at the Plant. A great deal of evidence shows 

compliance with the standards was possible when Plant management focused its efforts on keeping 

the PIT aisles and emergency exit routes clear. After the complaints to OSHA in late July and on 

November 12, 2020, Acting Plant Manager Bruno stated in the response letters to OSHA that the 

immediate obstructions had been cleared. (GX-18, at 1; GX-26, at 1). Most of the 1767 Forms 

submitted at the hearing demonstrate that the obstructions in the Plant could be cleared when 

management focused on the issue. (GX-21, at 4, 8-14, 17-19, 21-25, 27, 29, 30). The 1767 Forms 

frequently state the management response to the aisle and exit obstructions was to assign a mail 

handler to clear trays, to work on MTEC. Id. APWU Local President Kubat documented one 

particular instance on December 3, 2020, where an emergency exit route in the South Dock was 

66 Respondent cites 18 U.S.C. § 1700 (Desertion of mails), 18 U.S.C. § 1693 (Carriage of mail generally), and 39 

C.F.R. § 211.2 (Regulations of the Postal Service). Respondent generally cites to the Postal Reorganization Act of 

1970, without specific page, section, or text citation.
61

cleared of obstructions within a matter of hours. (Tr. 460-65; GX-24, at 19 & 20). Acting Plant 

Managers Bruno, Miller, and MDO Gonzalez, all testified to abating specific obstructions 

throughout the Plant when the obstructions were brought to their attention. (Tr. 605-08, 709-11, 

861-62). Indeed, MDO Gonzalez acknowledged that with sufficient staff resources, he could have 

cleaned up the obstructions in the Plant “[w]ith [his] eyes closed.” (Tr. 733). Stated otherwise, 

with a sufficient number of “dedicated” staff the Lehigh Plant aisle and exit obstructions could 

have been cleared. Respondent’s District Safety Specialists testified that employees were trained 

not to put items, boxes, trash in the aisles and exit routes, that there was a method to keep the aisles 

and exit routes clear. In other words, the obstructions were preventable. (Tr. 150-51, 568-69). 

Although the managers who testified at the hearing pointed out the rise in absenteeism at the 

Plant,67 Respondent has not adduced sufficient evidence that it could not, for example, dedicate 

existing staff to keeping the PIT aisles and emergency exits clear of obstructions to maintain 

compliance with the cited safety standards.68

Respondent recognizes that it faces a “difficult burden” in establishing it was infeasible to 

keep the PIT aisles, emergency exit routes, and fire pull stations clear of obstructions. (Tr. 519). 

Resp’t Br. 19. Respondent has failed to meet that burden here.

Feasible Alternative Protective Measures

To establish infeasibility, Respondent must also establish “an alternative protective 

measure was used or there was no feasible alternative measure.” Otis Elevator Co., 24 BNA OSHC 

at 1087. Here, Respondent does not argue that no feasible alternative measures were available to 

67 As discussed above, the general assumptions and speculation of Lehigh Plant managers regarding hiring, during the 

relevant period, are accorded no weight. See note 27 and accompanying text, above. 

68 By letter to OSHA on November 26, 2020, Mr. Kubat stated that previously the recurring safety hazard of empty 

trays accumulating in Automation had been addressed by the USPS assigning an employee to the “tray removal 

position” already in existence. (Tr. 421-28; GX-26, at 7, 8). 
62

it to keep the aisles, exit routes, or fire pull stations clear of obstructions in the Plant. Rather, 

Respondent points to the efforts of Plant management to clear the obstructions in the Plant, 

highlighting: 1) the “spot abatement” of particular obstructions brought to management’s attention; 

2) the ordering of extra trailers to store mail and MTEC; 3) the early opening of the Annex; 4) the 

liberal overtime policy at the Plant; 5) the utilization of employees in a “cross-craft” capacity; and 

6) “expediating the onboarding and training processes and procedures for new employees when 

hired.”69 Resp’t Br. 24-26. 

Respondent’s argument on this prong of the defense fails because none of these measures 

were effective in keeping the aisles, exit routes, and fire pull stations clear throughout the Plant in 

any sustainable way. For an employer to establish the defense, the Commission requires that 

alternative abatement measures be effective in abating the hazard the standard is designed to 

address. See, e.g., George Campbell Painting Corp., 18 BNA OSHC 1929, 1933 n.16 (No. 94-

3121, 1999) (rejecting the employer’s infeasibility defense where the alternative abatement 

measure was ineffectively implemented). Here, Plant management’s efforts to clear the 

obstructions in the Plant were concededly ineffective and left employees exposed to the tripping, 

struck-by, trampling, and fire hazards the standards were designed to address. (Tr. 66-69, 310-11, 

348, 355-58, 431-51; JX-7, GX-21, at 4, 8-14, 17-19, 21-25; GX-24, at 1, 2, 7, 8, 13). 

Respondent has, therefore, failed to carry its burden on either element of its infeasibility 

defense.

Citation 3, Item 2

69 This portion of Respondent’s brief is obviously missing a good deal of intended argument, with entire sentences 

trailing off into ellipses and several blank citations, including a blank citation in support of this final effort of 

expediting the onboarding process. The undersigned can find no support for the assertion that Plant management 

expedited the onboarding process during the period at issue. Indeed, all three managers who addressed the topic at 

the hearing lamented that the protracted onboarding process was one of the factors causing a shortage of workers in 

the Plant. (Tr. 598-99, 611, 840-41).
63

Citation 3, Item 2, alleged a repeat violation of 29 C.F.R. § 1910.303(g)(1)(i) 70 as follows:

29 CFR 1910.303(g)(1)(i): Employer provided a work space that was less than 30 inches 

wide in front of electric equipment operating at 600 volts, nominal, or less:

a) USPS Distribution Center, Processing Floor – On or about December 1, 2020[,] 

a mail processing machine (DBCS 23) was operating under commercial electrical 

power at 600 volts or less. The available front working space for the electrical 

control panel was approximately 24”. 

As a basis for the repeat classification of the violation, the Citation further alleged 

that: 

The [USPS] was previously cited for a violation of this occupational safety and 

health standard or its equivalent standard 29 CFR 1910.303(g)(1), which was 

contained in OSHA inspection number 1367892, citation number 1, item number 1 

and was affirmed as a final order on 2/26/2019, with respect to a workplace located 

at 7001 S. Central Ave, Los Angeles, CA 90052.

The Citation proposed a penalty of $42,911 for Respondent’s alleged repeat violation of 29 

C.F.R. § 1910.303(g)(1)(i).

Applicability

By its own terms, the standard “applies to electric equipment operating at 600 volts, 

nominal, or less to ground.” 29 C.F.R. § 1910.303(g)(1)(i). DBCS 23 has a “boilerplate label on 

the side of the control panel that said 180 volts.” (Tr. 242; see also 381-83). Subsection (1)(i) of 

70 29 C.F.R. § 1910.303(g)(1)(i) states, in relevant part:

(g) 600 Volts, nominal, or less. This paragraph applies to electric equipment operating at 600 

volts, nominal, or less to ground.

(1) Space about electric equipment. Sufficient access and working space shall be 

provided and maintained about all electric equipment to permit ready and safe operation 

and maintenance of such equipment.

(i) Working space for equipment likely to require examination, adjustment, servicing, or 

maintenance while energized shall comply with the following dimensions, except as 

required or permitted elsewhere in this subpart:

...

(B) The width of working space in front of the electric equipment shall be the 

width of the equipment or 762 mm (30 in.), whichever is greater. In all cases, the 

working space shall permit at least a 90–degree opening of equipment doors or 

hinged panels ...
64

the standard applies to “equipment likely to require examination, adjustment, servicing, or 

maintenance while energized ....” Here, electronic technician Pietruch testified that DBCS 23 

required servicing or maintenance while still energized, for the adjustment of “safety modules . . . 

for monitoring voltage" and particularly in “emergency” situations like when a mail clerk or PSE 

smelled smoke coming from the machine. (Tr. 387-88, 391-92, 396, 405-09, 728). The standard, 

therefore, applies. Respondent has made no argument to the contrary.

Noncompliance

The standard required Respondent to provide at least 30 inches of “working space” in front 

of DBCS 23 where the electrical panel was located. Here, it is uncontested that there was only 24 

inches of space between the guardrail and DBCS 23’s electrical panel at the time CSHO Sabo 

inspected the machine. (Tr. 246, 686; GX-8, at 5 (Photo ID #120120_17)). Mr. Pietruch 

established that the existence of the guardrail hindered his and other technicians’ ability to navigate 

the working space in front of the machine. (Tr. 390-92). The Secretary has, therefore, 

demonstrated prima facie noncompliance with the standard.

In rebuttal, Respondent emphasizes that the guardrail was removable, “removing the rails 

takes only a matter of seconds,” and it therefore complied with the standard. Resp’t Br. 31. 

However, the ability of the guardrail to be removed does not demonstrate compliance with the 

standard on this record. First, although Mr. Pietruch did, as Respondent notes, testify that the 

guardrail could take “no time at all” to remove, this was only so if the technician servicing the 

machine was able to enlist another employee to help lift the rails uniformly from their posts. (Tr. 

395; see also Tr. 681-82, 728-29). A single employee lifting the rails, which weighed as much as 

20 to 40 pounds, ran the risk of getting the poles stuck on the post, especially since one of the rails 

was “slightly twisted.” (Tr. 394-96). Indeed, Mr. Pietruch recounted that on multiple occasions, 
65

one of the rails would get stuck on the posts and he would have to get a “deadbolt hammer” to 

dislodge the rail, a process which took as long as five or ten minutes. (Tr. 395-96).

More to the point, however, is the fact that in emergency situations, like when a mail clerk 

or PSE reported the smell of smoke coming from DBCS 23, there was no time to remove the rails. 

(Tr. 396). A technician in such a situation, therefore, had to navigate inspecting the machine within 

the confines of the 24 inches between the guardrails and the machine’s electrical panel, which 

meant “there just was not enough room to kneel down in there.” (Tr. 390-91). Further still, even 

with the guardrails removed, Mr. Pietruch noted that “the post [was] sitting back there. The post 

[was] still in the way.” (Tr. 391). Thus, even with the guardrails completely removed, the pole 

intruded into the “working space” in front of DBCS 23’s electrical panel.

For these reasons, the removability of the guardrails does not demonstrate that Respondent 

provided the required 30 inches of working space in front of DBCS 23. The Secretary has, 

therefore, established noncompliance with the standard.

Exposure

“Exposure to a violative condition may be established either by showing actual exposure 

or that access to the hazard was reasonably predictable.” Phoenix Roofing, 17 BNA OSHC at 1079 

n.6. Here, Mr. Pietruch testified that he and other electrical technicians inspected and serviced 

DBCS 23, including while it was still energized. (Tr. 383-84, 386-88, 391-92, 405-09, 728). 

Respondent has not contested the element of employee exposure. The Secretary has established 

employee exposure to the hazard.

Knowledge

The Secretary can prove knowledge of a corporate employer through the knowledge, actual 

or constructive, of its supervisory employees. Jersey Steel Erectors, 16 BNA OSHC at 1164; Dover 
66

Elevator Co., 16 BNA OSHC at 1286. 

Here, MDO Gonzalez demonstrated his actual knowledge of the guardrail in front of DBCS 

23 and also admitted that while “the OSHA regulation is 30 inches, but sometimes the way that 

the machines are closed, [the posts supporting the guardrails] have to be around 24 [inches away 

from the machine].” (Tr. 675-77, 686; GX-8, at 5 (Photo ID #120120_17)). MDO Gonzalez thus 

had actual knowledge of the violative condition in front of DBCS 23 and, as an undisputed 

supervisor at the Lehigh Plant, his knowledge is imputed to Respondent. Jersey Steel Erectors, 16 

BNA OSHC at 1164; Dover Elevator Co., 16 BNA OSHC at 1286.

Classification

The Secretary classified the violation of 29 C.F.R. § 1910.303(g)(1)(i) as a “repeat” 

violation. In this regard, section 17(a) of the Act, 29 U.S.C. § 666(a), imposes heightened penalties 

for “[a]ny employer who ... repeatedly violates the requirements of ... regulations prescribed 

pursuant to this chapter ....” “A violation is properly classified as repeated under section 17(a) of 

the Act if, at the time of the alleged repeated violation, there was a Commission final order against 

the same employer for a substantially similar violation.” Jersey Steel Erectors, 16 BNA OSHC at 

1167. “Unless the violation involves a general standard, the Secretary establishes a prima facie 

case of similarity by showing that both violations are of the same standard.” Id. This prima facie 

showing of substantial similarity may be rebutted “by evidence of the disparate conditions and 

hazards associated with these violations of the same standard.” Id.

As a basis for the repeat classification of the violation, the Citation alleged that: 

The [USPS] was previously cited for a violation of this occupational safety and 

health standard or its equivalent standard 29 CFR 1910.303(g)(1), which was 

contained in OSHA inspection number 1367892, citation number 1, item number 1 

and was affirmed as a final order on 2/26/2019, with respect to a workplace located 

at 7001 S. Central Ave, Los Angeles, CA 90052.
67

At the hearing, the Secretary introduced an informal settlement agreement, signed by a 

representative of USPS on February 26, 2019, stipulating to a violation of 29 C.F.R. 

§ 1910.303(g)(1) occurring on December 10, 2018, at a USPS facility in Los Angeles, California. 

(GX-12). Because this is the same standard alleged in Citation 3, Item 2, the Secretary has 

established a prima facie case of similarity for the repeat classification. Jersey Steel Erectors, 16 

BNA OSHC at 1167; see also Triumph Constr. Corp., 26 BNA OSHC at 1346-47 (finding that an 

informal settlement agreement constitutes a “Commission final order” for purposes of repeat 

classification).

Against this prima facie showing of similarity, Respondent argues that “this was not for a 

substantially similar violation as the allegedly blocked electrical panel in front of DBCS 23 

machine, as that was a moveable, temporary barrier, unlike a permanent, fixed one.” Resp’t Br. 

32. However, in rebutting the Secretary’s prima facie showing of similarity, Respondent must 

show that the previous violations resulted in different hazards, not just distinguish the factual 

circumstances surrounding the instant violation and the previous one. Amerisig Se., Inc., 17 BNA 

OSHC at 1661 (“[T]he principal factor in determining whether a violation is repeated is whether 

the two violations resulted in substantially similar hazards”). Respondent’s argument does not 

demonstrate that employees were exposed to different hazards; indeed, in both instances 

employees were exposed to the electrical hazards of not having sufficient workspace in front of 

energized electrical equipment. (Tr. 247, 258-60, 390-92; GX-5; GX-12, at 4). In any event, 

Respondent’s argument fails on its own terms. The items alleged to have been blocking the 

electrical equipment in the previous citation were “[i]tems such as a mail bin, light bulbs, and a 

portable ladder,” none of which constitute a “permanent, fixed [barrier]” as Respondent argues in

its brief. Resp’t Br. 32. (GX-12, at 5).
68

The Secretary has proven that Respondent’s violation of 29 C.F.R. § 1910.303(g)(1)(i) was 

a repeat violation.

IV. PENALTY

When OSHA issues a Citation, it may include a proposed penalty amount. 71See 29 U.S.C. 

§ 659(a). The Commission and its judges conduct de novo penalty determinations and have full 

discretion to assess penalties based on the facts of each case and the applicable statutory criteria. 

See Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0293, 1995), aff’d, 73 F.3d 1466 (8th Cir. 

1995); Allied Structural Steel Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975). In determining the 

appropriate penalty for affirmed violations, section 17(j) of the Act requires the Court to give due 

consideration to four criteria: (1) the size of the employer’s business; (2) the gravity of the 

violations; (3) the good faith of the employer; and (4) the employer’s prior history of violations. 

29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the number of 

employees exposed, the duration of the exposure, the precautions taken against injury, and the 

likelihood of an actual injury. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 

1993).

With Citation 3, Item 1 withdrawn, the Citations proposed a total penalty of $193,872, 

broken down as follows.

For Citation 1, Item 1, the serious violation of 29 C.F.R. § 1910.165(e) for the obstructed 

fire pull station, the Citation proposed a penalty of $8,582. In calculating this penalty, CSHO Sabo 

“wrestled back and forth between a high and medium severity,” but ultimately landed on a medium 

severity because “there were other pull stations that [an] employee ... could have activated.” (Tr. 

100; GX-1, at 1). As to probability, CSHO Sabo found it to be “lesser” because of the existence 

71 OSHA has published a Field Operations Manual (FOM) to, among other things, act as a guide for its CSHOs in 

proposing penalties. FOM at 1-1, 6-1. FOM, Directive No. CPL-02-00-163 (eff. Sept. 13, 2019).
69

of additional fire pull stations in the area. (Tr. 100-101, GX-1, at 1). The gravity of the violation 

was determined to be “moderate” as a function of severity and probability in the “OSHA 

information system (OIS).” (Tr. 101). Because the USPS is a “larger employer,” Respondent was 

not entitled to a reduction based on size. (Tr. 101-02; GX-1, at 1). For good faith and history, 

CSHO Sabo determined that “in this case [they] go together,” and because the USPS had “a higher 

grade series of violations in the past five years,” a 10% increase in the penalty was added for 

history. (Tr. 102; GX-1, at 1). This led to a total calculated penalty of $8,582.72

For Citation 1, Item 2, the serious violations of 29 C.F.R. § 1910.176(a) for the obstructed 

PIT aisles throughout the Plant, the Citation proposed a penalty of $13,653. In calculating this 

penalty, CSHO Sabo determined the severity was high “due to the nature of the injuries someone 

could [have] sustained from an accident occurring due to this hazard,” namely “fractured bones, 

blunt force trauma and death” if PITs were to collide with pedestrian traffic. (Tr. 197; GX-2, at 

2). He further determined the possibility was “greater” based on the emergency egress aisles also 

being blocked “forcing employees into what was left of the two PIT aisles as far as available space 

forcing employees and machines into the same confined space.” (Tr. 197; GX-2, at 2). As a 

function of severity and probability, the OIS assigned the violations a high gravity. (Tr. 197; GX2, at 2). CSHO Sabo further determined that no reduction was warranted for size or good faith 

and that a 10% increase was warranted based on Respondent’s history of violations in the last five 

years. (Tr. 198; GX-2, at 2). This led to a total calculated penalty of $13,653.

For Citation 2, Item 1, the violations of 29 C.F.R. § 1910.37(a)(3) for the obstructed 

emergency exit routes throughout the Plant, the Citation proposed a penalty of $128,726 based on 

the violations’ willful classification. At the hearing, the Secretary moved to amend for an 

72 CSHO Sabo also testified that no reduction was given for a “quick fix,” which is a hazard in plain view that an 

employer can rectify while the CSHO is onsite. (Tr. 102-03; GX-1, at 1). 
70

alternative classification of “repeat” if the violation was not found to be willful with a reduction 

in the proposed penalty to $42,911. (Tr. 11-13). Because the undersigned has determined 

Respondent’s violations of this standard were not willful, but were repeat violations, only the 

second penalty remains at issue. In calculating this penalty, CSHO Sabo determined the severity 

was only “medium” because “[a]lthough the injuries would result in burns, smoke inhalation, 

trampling, that kind of stuff, the building was supplied with a[n] ... automated sprinkler system. 

So in the event of a fire, the sprinkler system should lessen the severity as well.” (Tr. 235-36; GX3, at 2). He determined the probability was “greater” because of the “sheer number of employees 

that would be trying to get to these obstructed exit aisles at one time.” (Tr. 236; GX-3, at 2). As a 

function of severity and gravity, the OIS assigned the violations a “moderate” gravity. (Tr. 236; 

GX-3, at 2). Like with the previous violations, CSHO Sabo determined no reduction in penalty 

was warranted for size or good faith and a 10% increase was warranted based on history of 

violations in the last five years.73 (Tr. 236-37; GX-3, at 2). The moderate gravity assessed by 

OSHA was accorded weight when calculating the penalty for the repeat violations found. This 

resulted in a total calculated penalty of $42,911. 

Finally, for Citation 3, Item 2, the repeat violation of 29 C.F.R. § 1910.303(g)(1)(i) for the 

failure to provide at least 30 inches of workspace in front of the electrical panel of DBCS 23, the 

Citation proposed a penalty of $42,911. In calculating this penalty, CSHO Sabo determined the 

severity was medium “due to that fact that there was space in front of the electrical panel, just not 

adequate space.” (Tr. 265; GX-5, at 1). The probability was determined to be lesser based on 

interviewing the employee who reported the condition, who indicated that the task that would 

expose a technician to the hazard “was done very infrequently.” (Tr. 265-66; GX-5, at 1). As a 

73 The CSHO also multiplied the total penalty by ten based on the willful classification. (Tr. 237). However, that 

classification is no longer at issue in determining the penalty for the violations. 
71

function of severity and probability, the OIS assigned a moderate gravity to this violation. (Tr. 

266; GX-5, at 2). No reduction was warranted for size or good faith and a 10% increase was added 

based on violation history in the past five years. (Tr. 266; GX-5, at 2). The base penalty was then 

multiplied by five for a repeat classification penalty of $42,911. (GX-5, at 2).

In arguing against the total proposed penalty,74 Respondent argues the proposed penalty 

does not give “due consideration to the gravity of the violations, the size of the Postal Service, 

Respondent’s good faith, and its history of previous violations.” Resp’t Br. 33. However, 

Respondent does not make any specific arguments as to how this is so. Respondent goes on to 

argue that the proposed penalties “far exceed other OSHA citations for violations of the same 

standards,” but does not provide any evidence to support this claim. Id. Finally, Respondent points 

out that “there were no accidents and no deaths” from the violations, and, in fact, due to the staffing 

shortages at the Plant at the time, “the number of employees that could have been exposed to a 

potential hazard was significantly lessened.” Id. Respondent therefore asks that the proposed 

penalty be “reduced significantly.” Id.

Having weighed the relevant factors, the undersigned finds the proposed penalties for each 

of the violations is appropriate and therefore assesses them for each Citation item. Contrary to 

Respondent’s contentions, CSHO Sabo adequately accounted for the gravity of each violation, 

assigning all but one Citation item, the blocked PIT aisles, a designation of “moderate” gravity 

based on lesser probabilities and severities associated with the violations. The violations of 29 

C.F.R. § 1910.176(a) were properly designated as high gravity violations based on the potential 

for serious injury to pedestrian traffic if a PIT collision occurred and the heightened possibility of 

such a collision occurring because of the number of employees using the aisles and the number of 

74 Respondent has not honed its arguments on penalty to any particular violation but generically argues against the 

total proposed penalty. Resp’t Br. 33.
72

obstructions blocking the aisles. Respondent’s size is adequately accounted for as a large 

employer. Respondent’s good faith efforts at reducing the obstructions in the Plant have resulted 

in the re-classification of the violations of 29 C.F.R. § 1910.37(a)(3) from willful violations to 

repeat violations with a commensurate reduction in the penalty of $85,815. The undersigned finds 

no further reduction is warranted for Respondent’s good faith. Finally, Respondent has introduced 

no evidence to contradict CSHO Sabo’s representation as to its violation history which resulted in 

a 10% increase in all proposed penalties. In absence of any contrary evidence, the undersigned 

finds the increase based on Respondent’s history is appropriate.

V. ORDER

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact 

and conclusions of law inconsistent with this decision are denied. 

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as a SERIOUS violation of 29 C.F.R. § 1910.165(e) 

and a PENALTY of $8,582 is ASSESSED.

2. Citation 1, Item 2 is AFFIRMED as a SERIOUS violation of 29 C.F.R. § 1910.176(a) 

and a PENALTY of $13,653 is ASSESSED.

3. Citation 2, Item 1 is AFFIRMED as a REPEAT violation of 29 C.F.R. § 1910.37(a)(3) 

and a PENALTY of $42,911 is ASSESSED.

4. Citation 3, Item 1, the alleged violation of 29 C.F.R. § 1910.157(c)(1), Withdrawn by 

the Secretary, is DISMISSED.
73

5. Citation 3, Item 2 is AFFIRMED as a REPEAT violation of 29 C.F.R. 

§ 1910.303(g)(1)(i) and a PENALTY of $42,911 is ASSESSED.

SO ORDERED.

/s/ Carol A. Baumerich

Carol A. Baumerich

Judge, OSHRC

Date: September 29, 2023

Washington, DC