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No. 13-0224 

UNITED STATES OF AMERICA 

OCCUPATION AL SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. 

A.H. STURGILL ROOFING, INC., 

Respondent. 

BRIEF FOR THE SECRETARY OF LABOR 

JUNE 17, 2015 

M. PATRICIA SMITH 

Solicitor of Labor 

ANN ROSENTHAL 

Associate Solicitor of Labor for 

Occupational Safety and Health 

CHARLES F. JAMES 

Counsel for Appellate Litigation 

SCOTT GLABMAN 

Senior Appellate Attorney 

U.S. Department of Labor 

200 Constitution Ave., N.W. 

Washington, D.C. 20210 

(202) 693-5493 

~003/030 
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TABLE OF CONTENTS 

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

STATEMENT OF THE ISSUES .............................................................................................. . 

STATEMENT OF THE CASE ................................................................................................. . 

STATl~MENT OF FACTS ......................................................................................................... 2 

1. Sturgill and the Roofing Project........................................................................... 2 

2. Weather Conditions at the Job Site...................................................................... 3 

3. The Accident......................................................................................................... 3 

THE ALJ'S DECISION............................................................................................................. 5 

SUMMARY OF THE ARGUMENT ........................................................................................ 8 

ARGUMENT ............................................................................................................................... 9 

I. Sturgill Violated the General Duty Clause Because the Company's Work Site 

Was Not Free of Recognized Heat Hazards on August J, 2012 ........................... 9 

A. A Hazard of Heat Illness Existed at Sturgill's Work Site.......................... 9 

B. Both Sturgill and the Roofing Industry Recognized the Heat 

Hazard ...................................................................................................... 13 

C. The Heat Hazard Was Likely to Cause Death or Serious Physical 

Harm If an Accident Occurred ................................................................. 15 

D. Sturgill Could Have Feasibly Abated the Heat Hazard ............................ 16 

E. Sturgill Knew, or Reasonably Could Have Known, of the 

Hazardous Condition ................................................................................ 19 

II. Sturgill Failed to Provide Adequate Training to its Employees on How to 

Recognize and Avoid Heat Hazards ..................................................................... 22 

CONC:LUSION ........................................................................................................................... 23 

CERTIFICATE OF SERVICE 
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TABLE OF AUTHORITIES 

CASES: 

Arcadian Corp., 

20 BNA OSHC 2001 (No. 93-0628, 2004) ...................................................................... 16 

Baroid Div. of NL Indus., Inc. v. Occupational Safety & Health Review Comm'n (C>SHRC), 

660 F.2d 439 (10th Cir. 1981) ........................................................................................... 9 

*Beverly Hills Enters., 

19 BNA OSHC 1161 (Nos. 91-3144, 92-238, 92-819, 92-1257, 93-724, 2000) .............. 19 

Georgia Elec. Co. v. Marshall, 

595 F.2d 309 (5th Cir. 1979) ............................................................................................. 16 

N & N Contractors Inc., 

18 BNA OSHC 2121 (No. 96-0606, 2000) affd, 255 F.3d 122 (4th Cir. 2001) .............. 14 

Nat'/ Realty & Constr. Co. v. OSHRC, 

489 F.2d 1257 (D.C. Cir. 1973) ........................................................................................ 16 

O'Brien Concrete Pumping Inc., 

18 BNA OSHC 2059 (No. 98-0471, 2000) ....................................................................... 22 

*Phoenix Roofing Inc., 

17 BNA OSHC I 076 (No. 90-2148, 1995) affd without published opinion, 

79 F.3d 1146 (5th Cir. 1996) ......................................................................................... 9, 20 

Seawor/d of Florida, LLC v. Perez, 

748 F.3 1202 (D.C. Cir. 2014) ............................................................................................ 9 

The Duriron Co., 

11 BNA OSHC 1405 (No. 77-2847, 1983) ....................................................................... 15 

United States v. Myers, 

123 F.3d 350 (6th Cir. 1997) ............................................................................................. 12 

Usery v. Marquette Cement Mfg. Co., 

568 F .2d 902 (7th Cir. 1977) ............................................................................................. 16 

*Authorities chiefly relied on are marked with an asterisk. 

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Western Massachusetts Elec. Co., 

9 BNA OSHC 1940 (No. 76-1174, 1981) ......................................................................... 16 

Wiley Organics Inc., 

17 BNA OSHC 1586 (No. 91-3275, 1996) ....................................................................... 13 

STATUTES AND REGULATIONS: 

Americans with Disability Act (ADA), 

29 u.s.c. § 12112(d)(4) ······················································································· 21 

Age Discrimination in Employment Act (ADEA), 

29 U.S.C. § 623(a) ............................................................................................... 22 

29 C.F.R. § 1630.15 .......................................................................................................... 21 

29 C.F.R. § 1926.21(b)(2) ......................................................................................... 1, 7, 22 

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STATEMENT OF THE ISSUES 

(1) Whether an employer's knowledge or lack of knowledge of its employctes' underlying 

health conditions or ages, and legal restrictions upon the employer in obtaining suah information, 

are relevant to the Secretary's burden to establish a violation of the general duty clause in this 

case. 

(2) Whether the judge miscalculated the heat index on the day in question and, if so, 

whether the Secretary established the existence of a hazard even ifthe heat index remained in the 

lowest "caution" quadrant. 

(3) Whether there was a feasible and effective means of eliminating or materially 

reducing the hazard. 

(4) Whether the employer failed to provide adequate training to its employees on how to 

recognize and avoid heat illness. 

STATEMENT OF THE CASE 

After an A. H. Sturgill, Inc. temporary employee died from complications of heat stroke 

after collapsing on the roof of a Sturgill work site, the Secretary of Labor inspected the site, and 

issued a two-item serious citation to the company on January 16, 2013. Administrative Law 

Judge's Decision and Order at 1, 6. The citation alleged that Sturgill violated the general duty 

clause by exposing employees to the hazard of excessive heat while working on the roof in 

direct sunlight. ALJ Dec. 1; Citation 1, Item 1, attached to Secretary's Complaint. The citation 

also alleged a serious violation of 29 C.F.R. § l 926.2l(b)(2) for failure to provide adequate 

training to employees on recognition and avoidance of heat hazards. ALJ Dec. 1; Citation 1, 

Item 2. The citation proposed a total penalty of $8,820 for these violations. ALJ Dec. 1. 

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Sturgill timely contested the citation, and the ALJ held a three-day hearing in Dayton, 

Ohio on March 25-27, 2014. ALJ Dec. 2. In her February 23, 2015 decision, the ALJ affirmed 

both violations as serious and assessed a total penalty of $8,820. ALJ Dec. 29. Sturgill filed a 

petition for discretionary review ("PDR") of the ALJ's decision. The Commission directed the 

case for review, and, on April 8, 2015, issued a briefing notice requesting that the parties brief 

all the issues presented in the PDR, particularly issues 1 and 2 above. Supra p. 1; Commission 

Briefing Notice 1. 

STATEMENT OF FACTS 

1. Sturgill and the Roofing Project 

Sturgill is a commercial roofing firm in Dayton, Ohio with thirty-six employees. ALJ 

Dec. 1. On July 13, 2012, Sturgill began a roofing project at a PNC bank building in 

Miamisburg, Ohio. ALJ Dec. 2. The project required tearing off the existing roof and installing 

a new one. ALJ Dec. 2. The roof consisted of a rubber roofing membrane over a layer of 

styrofoam insulation. ALJ Dec. 2. 

On August 1, 2012, Sturgill employees were tearing off and removing the elleisting 

roofing materials. ALJ Dec. 2. To perform this task, employees removed the roofing materials, 

and cut the styrofoam and rubber into smaller pieces so that one person could dispose of the 

material. ALJ Dec. 2. The styrofoam pieces weighed one or two pounds; the rubber pieces 

weighed up to ten pounds each. ALJ Dec. 2. The materials were loaded into a cart and moved 

to the edge of the roof, where they were lifted over a thirty-nine-inch parapet wall and thrown 

into a dump truck below. ALJ Dec. 2. 

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2. Weather Conditions at the Job Site 

The weather at the PNC roofing project was hot, from July 13 through August 1, 2012. 

ALJ Dec. 2. Sturgill foreman Leonard Brown recalled that, on the morning of August 1, 2012, 

the temperature was in the 80s Fahrenheit with a predicted high that day of 89 degrees. ALJ 

Dec. 2; Complainant's Exhibit (CX) 13 at 4, 8-9. Foreman Brown also noted that it was about 

ten degrees hotter on the roof than it was on the ground. ALJ Dec. 11; CX-13 at 9. Tbe morning 

hourly high temperatures on August 1, 2012 ranged from 72 to 83 degrees, and the relative 

humidity varied from 51% to 87%. ALJ Dec. 3, 10; CX-1. The National Weather Ser,rice 

(NWS) heat index, which factors in relative humidity and air temperature, and is used to 

calculate the "likelihood of heat disorder with prolonged exposure or strenuous activity," was 85 

degrees at 10:53 a.m. 1 ALJ Dec. 10; CX-1; CX-3. The skies were generally clear that morning, 

with occasional scattered clouds. ALJ Dec. 1 O; CX-1. Although there were several shaded areas 

on the roof behind stacks of roofing materials and large air-conditioning units, the Sturgill crew 

was working in direct sunlight. ALJ Dec. 3, 10-11; CX-1. 

3. The Accident 

On August 1, 2012, nine permanent Sturgill employees, and three temporary employees, 

provided by temporary employment agency Labor-Works-Dayton, LLC, worked on the· PNC 

roofing project. ALJ Dec. 3. One of the temporary employees was M.R., a sixty-year-old, who 

had prior construction and roofing work experience, but had worked the previous three years on 

1 The heat index is devised for shady, light wind conditions. CX-4 at 2. Exposure to full 

sunshine can increase heat index values up to 15 degrees. CX-4 at 2. The Occupational Safety 

and Health Administration (OSHA) advises employers to implement a heat illness prewntion 

plan when the heat index is at or above 80 degrees. CX-5 at 8-9. The NWS places a heat index 

value of 85 degrees in the "caution" category, but a 15 degree increase for working in sunlight 

would elevate that value to the "danger" category. ALJ Dec. 10; CX-4 at 2. 

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the night shift in an air-conditioned printing facility. 2 ALJ Dec. 3. August 1, 2012 was M.R.'s 

first day on the PNC roofing job site. ALJ Dec. 4. 

That morning, M.R. told Foreman Brown that he had done roofing work before,. but the 

foreman did not ask M.R. when he had last performed this work. ALJ Dec. 4. Foreman Brown 

took M.R. to the roof and showed him the safety warning lines and the water coolers, and told 

him that it was going to be hot that day. ALJ Dec. 4; Hearing Transcript (Tr.) 498; CX-13 at 4. 

Foreman Brown also showed M.R. the break area, and told M.R. to let him know if he (M.R.) 

got hot and needed an extra break. ALJ Dec. 4. Foreman Brown did not train M.R. on heat 

hazards or on recognizing the signs and symptoms of heat illness.3 ALJ Dec. 4. Although 

Foreman Brown noticed that M.R. was wearing black pants and a black sweater, the foreman did 

not say anything to M.R. about his clothing, even though the foreman acknowledged that he 

knew that one is supposed to wear light clothing when working on a roof on a hot day. Tr. 506; 

CX-13 at 7; ALJ Dec. 4-5. 

Because of M.R.'s age, Foreman Brown assigned M.R. the least strenuous work on the 

roof: throwing discarded roofing materials, weighing from one to ten pounds each, from a cart 

near the edge of the roof over a thirty-nine-inch parapet wall and into a dump truck below. ALJ 

Dec. 2, 5; CX-13 at 2-3, 12. There was a shaded area, created by a stack of roofing materials, 

about ten-to-fifteen feet from M.R.'s work area. ALJ Dec. 5. Sometime between 8 and 9 a.m., 

the Sturgill crew took its scheduled fifteen-minute morning break. ALJ 5. M.R. was given a 

2 M.R. is designated by his initials for privacy reasons. ALJ Dec. 3 n.5. 

3 None of Sturgill's three temporary employees on the PNC roofing project received any 

training on heat hazards. ALJ Dec. 6-7. Sturgill's nine permanent employees received a pocket 

safety guide including information on heat illness and two toolbox talks on heat hazards, not 

necessarily presented during the summer, as part of a 52-week program. ALJ Dec. 6-7. 

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forty-four ounce cup of ice water, but Foreman Brown was unsure if M.R. drank all of it, and 

believed that M.R. did not drink any more water that morning. ALJ Dec. 5. 

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Sometime after the break, Foreman Brown noticed that M.R. was sweating, bu'! M.R. said 

that he was fine and declined to drink anything. ALJ Dec. 5. Later that morning, other 

employees asked Foreman Brown to check on M.R. when he would not speak to them. ALJ 

Dec. 5. Foreman Brown checked on M.R. and found him fine, but fifteen minutes later, M.R. 

was walking clumsily. ALJ Dec. 5. Foreman Brown went over to him and ordered him to stop 

working and sit down after M.R. initially declined to do so. ALJ Dec. 5-6. At about 11 :41 a.m., 

M.R. became ill and collapsed. ALJ Dec. 6. At the time of his collapse, M.R. had been working 

for about five hours in direct sunlight. ALJ Dec. 16-17. When M.R. started shaking, Foreman 

Brown called 911. ALJ Dec. 6. When the emergency medical services personnel arrived, they 

found M.R. still in direct sunlight, and they shaded him by holding a sheet over his body. ALJ 

Dec. 6. M.R. was admitted to a hospital with a core body temperature of 105 .4 degrees and 

diagnosed with heat stroke. ALJ Dec. 6. Twenty-one days later, M.R. died in the hospital. ALJ 

Dec. 6. The coroner's report concluded that M.R. died of complications from heat stroke. ALJ 

Dec. 6; CX-8. 

THE ALJ'S DECISION 

The ALJ affirmed both cited violations as serious. The ALJ found that the Secretary 

established the four elements of the general duty clause violation, and showed that Sturgill had 

knowledge of the hazardous condition. First, the ALJ determined that the Secretary established 

that a hazard of heat illness existed because employees performed strenuous work, on a roof in 

the direct sunlight, with temperatures over 80 degrees, and a heat index in the "caution" to 

"danger" categories for the likelihood of heat disorders. ALJ Dec. 10-12. 

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Second, the ALJ found that both Sturgill and the roofing industry recognized the heat 

illness hazard as shown by the National Roofing Contractors Association's publication of toolbox 

talks, and a pocket safety guide, on heat hazards, and Sturgill's use of those publications in its 

training program for permanent employees. ALJ Dec. 12, 21. The ALJ also determined that 

Foreman Brown recognized early the morning of August 1, 2012 that it would be hot working on 

the roof ALJ Dec. 4, 13. The ALJ further found that Sturgill knew that temporary employees 

would be working there without training on heat hazards or the signs and symptoms of heat 

illness because the company knew that it had not given those employees that training. ALJ Dec. 

13,21. 

Third, the ALJ also found that the heat illness hazard at the Sturgill job site on the day in 

question was likely to cause death or serious physical harm if an accident occurred. The ALJ 

accepted the Secretary's expert's opinion that occupational exposure to heat contributed to M.R.'s 

development of heat stroke that morning, and that the heat conditions could also result in heat 

cramps or heat exhaustion in a younger worker. ALJ Dec. 13-15. 

Fourth, the ALJ found that Sturgill could have materially reduced the heat hazard at its 

work site by implementing a heat safety program containing the following elements: (1) an 

effective heat acclimatization program; (2) a requirement that employees wear suitable clothing 

when working on a roof in the heat; (3) a formalized work-rest regimen based on weather 

conditions; (4) a specific, formalized hydration policy; and (5) a monitoring program to detect 

the signs and symptoms of heat illness. ALJ Dec. 16-19. The ALJ found that Sturgill's heat 

safety program was inadequate because it did not contain these elements. ALJ Dec. 19··22. 

Furthermore, the ALJ found that Sturgill had actual knowledge of the heat hazard on 

August 1, 2012 because the company knew that the weather would be hot that day, and that a 

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new temporary employee, who had not been acclimatized to the heat, was starting strenuous 

roofing work in direct sunlight. ALJ Dec. 22. The ALJ also determined that Sturgill knew, 

through its superintendent, Thomas Gould, and Foreman Brown, that temporary employee M.R. 

had not received the same training as permanent employees. ALJ Dec. 23. The ALJ further 

found that Sturgill could have learned from the temporary agency and from M.R. directly what 

his previous jobs and working conditions were, and whether he needed to be acclimatized to the 

heat. ALJ Dec. 23. But Sturgill did not make these inquiries and allowed an unacclimatized 

employee to be exposed to direct sunlight on a hot day while performing strenuous roofing work 

for five hours. ALJ Dec. 16-17, 23. 

The ALJ also affirmed the serious violation of the training provision, 29 C.F.R. § 

1926.21 (b )(2), on the ground that Sturgill did not provide adequate training to its permanent and 

temporary employees on how to recognize and avoid heat hazards. ALJ Dec. 25-28. The ALJ 

determined that it was undisputed that temporary employees did not get the safety training, 

including heat hazard training, that its permanent employees got, and that Sturgill knew about 

this disparity. ALJ Dec. 25. The ALJ also determined that temporary employees were exposed 

to the same heat hazards as permanent employees, but without proper training. ALJ Dec. 25-26. 

The ALJ also noted that Foreman Brown's generalized instructions to M.R. on heat hazards were 

insufficient because they did not include information on the need for frequent breaks, the 

importance of drinking water even before thirsty, and how to recognize the signs and symptoms 

of heat illness. ALJ Dec. 26-28. The ALJ further found that Sturgill's heat hazard training for 

permanent employees was deficient because it did not give specific instructions on the need to 

acclimatize new employees or specific guidance on how to implement an acclimatization 

program. ALJ Dec. 27-28. 

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SUMMARY OF THE ARGUMENT 

The ALJ properly affirmed the general duty clause violation because all the elements of 

the violation were satisfied. A heat hazard existed at Sturgill's job site because the heat 

conditions increased the risk that employees would develop heat illness. The fact that M.R. 

developed heat stroke and died after working in these heat conditions shows that a serious heat 

hazard existed. Both Sturgill and the roofing industry recognized the heat hazard. Foreman 

Brown was aware of the heat conditions on the cited date, and even took some, albeit inadequate, 

heat precautions. The National Roofing Contractors Association (NCRA), the undisputed 

industry leader, published toolbox talks on heat hazards and a pocket safety guide that discusses 

heat illnesses, their signs and symptoms, and heat illness precautions. Sturgill could have 

feasibly abated the heat hazard because the Centers for Disease Control and Prevention and the 

NCRA recommended all of the Secretary's proposed abatement measures, and explaim:d how 

these measures would materially abate the hazard. Further, Sturgill knew about the heat hazard 

because Foreman Brown knew that the cited day would be hot, and both Superintendent Gould 

and he knew that temporary employee M.R. would be exposed to a heat hazard without the heat 

training that Sturgill gave its permanent employees. 

The ALJ properly affirmed the violation of the training provision because Sturgill did not 

provide adequate training to its permanent and temporary employees on how to recognize and 

avoid heat hazards. Foreman Brown's generalized instructions to M.R. on heat hazards were 

insufficient because they did not include information on the need for frequent breaks, the 

importance of drinking water even before thirsty, and how to recognize the signs and symptoms 

of heat illness. Sturgill's heat hazard training for permanent employees was also deficient 

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because it did not give specific instructions on the need to acclimatize new employees or specific 

guidance on how to implement an acclimatization program. 

ARGUMENT 

I. Sturgill Violated the General Duty Clause Because the Company's Work S;te rVas Not 

Free of Recognized Heat Hazards on August 1, 2012. 

A. A Hazard of Heat Illness Existed at Sturgill's Work Site. 

A hazard, for purposes of the general duty clause, is a work site condition that creates 

or contributes to an increased risk that an event causing death or serious bodily harm to 

employees will occur. Baroid Div. of NL Indus., Inc. v. Occupational Safety & Health Review 

Comm'n (OSHRC), 660 F.2d 439, 444 (10th Cir. 1981). Here, the Secretary's expert, Dr. Yee, 

determined that M.R. developed heat stroke and died because of his exposure to the heat 

conditions on the roof. Tr. 82. M.R. was admitted to the hospital with a core body temperature 

of 105 .4 degrees and diagnosed with heat stroke after working in the heat at the Sturgill job site 

for five hours. CX-13 at 5; CX-16 at 4, 6. Every one of the multiple doctors who treated M.R. 

in the hospital agreed with this diagnosis. CX-16 passim. The coroner's report concluded that 

M.R. died of complications from heat stroke. CX-8; Tr. 308. The fact that M.R. developed a 

fatal heat illness after working in the rooftop heat conditions is strong evidence that these 

conditions were hazardous. Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079 & n.5 (No. 90-

2148, 1995) (fact that employee fell through cited skylight opening to his death established that 

hazard existed), ajj'd without published opinion, 79 F .3d 1146 (5th Cir. 1996); see also 

Seaworld of Florida, LLC v. Perez, 748 F.3d 1202, 1205 (D.C. Cir. 2014) (death of killer 

whale trainer demonstrated that close contact with whales was a hazard likely to cause death or 

serious injury); infra p. 16 (citing authorities stating that fatal accidents are evidence of the 

seriousness of a hazard). 

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Dr. Yee' s expert testimony provides further support for the existence of a hazard, apart 

from his conclusion that M.R. died of heat stroke. Dr. Yee testified that, while a person's age 

and other conditions may affect his tolerance for heat, the conditions at the Sturgill worksite 

increased the risk of a range of heat illnesses, from heat exhaustion in younger workers to heat 

stroke in in older workers. ALJ Dec. at 1; Tr. 155, 157-59; CX-4 at 3. 

Moreover, the fact that the heat index at the job site exceeded OSHA's threshold for 

implementation of a heat illness prevention plan constitutes further evidence that a hea.t hazard 

existed. The National Weather Service (NWS) heat index "is a measure of how hot it really feels 

when relative humidity is factored with the actual air temperature." CX-4 at 2 (NWS, "Heat: A 

Major Killer"). OSHA uses the heat index to evaluate heat hazards. (Tr. 32). OSHA advises 

employers to implement a heat illness prevention plan "when the heat index is at or above 80° 

Fahrenheit." CX-5 at 9 (OSHA, "Using the Heat Index to Protect Workers"). On the morning of 

August 1, 2012, the NWS heat index at Dayton-Wright Brothers Airport, two miles from the 

Sturgill work site, was 85 degrees at 10:53 a.m. (based on a temperature of 83 degFees and 

relative humidity of 55%), five degrees above OSHA's threshold for implementation of a heat 

illness prevention plan. Tr. 104; CX-1; CX-3. 

Several factors increased the work site's heat index value of 85 degrees. First, although 

there were scattered clouds that morning, the Sturgill crew, especially M.R., was working in 

direct sunlight. CX-1 (skies were generally clear at Dayton-Wright Brothers Airport on August 

I, 2012, with only scattered clouds); Tr. 102-04 (Emergency Medical Services personnel found 

the collapsed M.R. in direct sunlight), 505 (Foreman Brown carried M.R. into the shade from a 

sunnier area). Since the heat index is devised for shady, light wind conditions, exp0sur•e to full 

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sunshine can increase heat index values up to 15 degrees, from a heat index value of 85 to 100, 

or from the "caution" category to the "danger" category. CX-4 at 2. 

Second, as Foreman Brown acknowledged, it was about ten degrees hotter on the roof 

than it was on the ground. CX-13 at 9. That increase alone, quite apart from any addition for 

exposure to direct sunlight, would raise the heat index value from 85 to 103 .5 degrees (based on 

a temperature of 93 degrees and relative humidity of 55%), and from the "caution" catc~gory to 

the "danger" category. CX-4 at 2. 

Third, although M.R. was assigned the least strenuous work on the roof, the work was 

still strenuous, consisting of throwing discarded roofing materials, weighing from one to ten 

pounds each, from a cart near the edge of the roof over a thirty-nine-inch parapet wall and into a 

dump truck below. CX-13 at 2-3, 12. Even ifM.R. mainly handled the lighter styrofoam pieces 

and not the heavier rubber pieces, and even if, as Foreman Brown claimed, M.R. could have 

pushed, rather than thrown most of the pieces off the roof, Tr. 502, the fact remains that M.R. 

worked for about five hours in direct sunlight, with only one fifteen-minute water break. CX-13 

at 5. Moreover, M.R. was wearing a black sweater and black pants in the heat. Tr. 506. 

OSHA's heat index guidance advises that: 

Strenuous work and the use of heavy or specialized 

protective clothing also have an additive effect [on 

heat index values]. As a result, the risk at a specific 

heat index could be higher than listed in the . . . 

[NWS heat index table J if . . . the work involves 

strenuous tasks or the use of heavy or specialized 

protective clothing. Extra measures, including 

implementing precautions at the next risk level, are 

necessary under these circumstances. 

CX-5 at 8 (OSHA, "Using the Heat Index to Protect Workers"). 

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On review, Sturgill denies that a heat hazard existed at its job site. Sturgill cites an OSHA 

enforcement memorandum to the field, RX-4 ("Extreme Heat Outdoor Inspections") (the 

Galassi Memo), attached to Sturgill's initial brief, issued two weeks before the cited date, 

allegedly identifying two necessary criteria for citing an employer for a general duty clause 

violation for an excessive heat hazard: (1) employee exposure to a NWS heat index value at or 

above the danger zone; or (2) permitting employees to work outside when a National Oceanic 

and Atmospheric Administration (NOAA) heat advisory is in effect. Sturgill !nit. Brf. at 14-16. 

Sturgill asserts that neither criterion was met at its work site. Id. at 14. Sturgill also claims that 

the AL.T improperly inflated the work site's heat index value by 15 degrees, unjustifiably adding 

the maximum increase for work in direct sunlight and thereby erroneously elevating the value 

from the "caution" to the "danger" category. Id. at 18-20. Sturgill further asserts that the ALJ's 

determination of the heat index value at the work site was also too high because the ALJ 

erroneously used the less accurate and higher dry-bulb temperatures instead of the mori:! 

accurate and lower wet-bulb temperatures, which would have produced a lower heat index 

value.4 Id. at 17-18. 

Sturgill's arguments are wholly unpersuasive. Contrary to Sturgill's assertion, the 

Galassi Memo does not "address the burden of proof which the Compliance Officer must meet 

in order to issue a General Duty Clause citation." Sturgill Init. Brf. At 14. The Galassi Memo 

provides guidance to compliance officers on the elements of a general duty clause violation and 

the types of evidence that may be relevant in determining whether to issue a citation. It is not a 

compliance guide for employers, and does not establish any enforceable rights for Sturgill. 

United States v. Myers, 123 F.3d 350, 355-56 (6th Cir. 1997) (Justice Department's internal 

4 Wet-bulb temperatures reflect ambient temperature, relative humidity and wind. Tr. 125. The 

heat index measures only ambient temperature and relative humidity. Tr. 125. 

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operating procedures do not create any enforceable rights). Moreover, the memo does not state 

or imply that compliance officers must document either that the heat index was at or above the 

danger level, or that a NOAA heat advisory was in effect. Rather, the memo explicitly states 

that these are examples of "some types of evidence that could establish . . . the [general duty 

clause] factors; they are not the only types that would satisfy OSHA's burden." RX-4 at 1. 5 

Furthermore, Sturgill's claim that the ALJ understated the value of the heat index by 

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erroneously using dry-bulb temperatures, instead of wet-bulb temperatures, is groundless. Heat 

index values are calculated by using dry-bulb, not wet-bulb, temperatures. Tr. 125. Therefore, 

the value of the wet-bulb temperature does not affect the calculation of a heat index value. 

B. Both Sturgill and the Roofing Industry Recognized the Heat Hazard. 

A hazard can be recognized by either the individual employer or its industry. Wiley 

Organics Inc., 17 BNA OSHC 1586, 1591 (No. 91-3275, 1996). Here, both Sturgill and the 

roofing industry recognized the hazard of heat in roofing work. Sturgill recognized that the 

conditions under which the roofing work was performed on August 1, 2012 posed a hazard of 

heat illness. Sturgill was well aware that roofing work in hot weather posed an increased risk 

of heat exhaustion and heat stroke. Sturgill's training materials for its permanent employees 

5 Even if the Secretary had to show that the heat index was in the danger category, several 

factors show that threshold was met. First, as discussed above, see supra p. 11, FoJJ'eman Brown 

acknowledged that it was ten degrees hotter on the roof than it was on the ground. That increase 

alone, quite apart from any addition for exposure to direct sunlight, would raise the heat index 

value from 85 to 103.5 degrees, and from the caution category to the danger category. Supra p. 

11. Moreover, the fact that M.R. was wearing heavy clothing, and performing strenuous work 

raised the heat index value even further. Supra p. 11; CX-5 at 8 (instructing that precautions at 

the next highest risk level are necessary in these circumstances). In addition, the Compliance 

Officer presented unrebutted testimony that direct sunlight increased the heat index by at least 7 

Yi degrees because the skies were clear for four consecutive hours and heat accumulate:d in 

M.R.'s body. Tr. 105. The sum of all these additive factors would put the heat index in the 

danger category or extreme danger category. 

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note these risks, and the need to take precautions. ALJ Dec. at 12. Foreman Brown was aware 

that job site conditions on the cited date were such that heat safety measures were necessary. 

He knew early that morning that it would be hot that day, and that it would be about ten 

degrees hotter on the roof than on the ground. Tr. 498-99, 508, 512-13; CX-13 at 4; CX-13 at 

9. He was also aware of other conditions that increased the risk of heat illness: e.g., that the 

work was performed in direct sunlight; that the work was strenuous; and that temporary 

workers would be working without training on heat hazards, including how to recognize the 

symptoms of heat illness. ALJ Dec. 12-13; Tr. 470-71 (Gould); Tr. 518-19 (Brown); CX-13 at 

11-12 (Brown). Foreman Brown's knowledge of the heat hazard is imputable to Sturgill. N & 

N Contractors Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000), afj'd, 255 F.3d 122 (4th 

Cir. 2001) ("The actual or constructive knowledge of a foreman or supervisor can be imputed 

to the employer"). The fact that Sturgill took some, albeit inadequate, heat precautions in these 

circumstances, such as providing coolers of water and scheduling rest breaks, Tr. 498; CX-13 

at 4-5, further demonstrates that it was aware that the job site conditions on the cited date were 

hazardous. 

Sturgill' s industry also recognized the hazard. The National Roofing Contractors 

Association (NCRA), the undisputed leader in the industry, Tr. 467-68, publishes toolbox talks 

on heat hazards and a pocket safety guide that includes a section on heat illnesses, their signs 

and symptoms, and precautions to avoid heat exhaustion and heat stroke. CX-10; CX-14; RX9 at 5-6; Tr. 469-70. Sturgill used these publications in its training program for permanent 

employees. Tr. 466-70. 

Sturgill argues that the ALJ improperly dismissed evidence that shade was available on 

the roof. Sturgill Init. Brf. at 20. The ALJ acknowledged that stacks of roofing materials and air 

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conditioning units on the roof created areas of shade. ALJ Dec. at 11. The amount of shade 

provided by these object, however, varied according to the sun's location in the sky. The ALJ 

found that as the sun approached noon, there would be little to no shade available on the roof 

where the employees were working. ALJ Dec. at 11. Moreover, the ALJ found that M.R. 

worked in direct sunlight, and was not moved to a shady area until he became ill. ALJ Dec. at 6, 

n.11 (rejecting Foreman Brown's contrary recollection). Nothing in Sturgill's brief establishes a 

basis for questioning the ALJ's findings. 

Sturgill also challenges the ALJ's finding that the work was "physically demanding and 

strenuous," arguing that no witness testimony supports that finding. Sturgill Init. Brf. at 21-22. 

M.R. 's job was to lift pieces of discarded roofing from a cart and throw them over a 39-inch 

parapet wall into a dump truck below. The pieces weighed from 1 to 2 pounds up to 1 0 pounds 

each. The ALJ reasonably found that work, performed by a 60-year-old man, was physically 

demanding and strenuous. In any event, the work required physical exertion, which, together 

with the temperature and other listed factors, increased the risk of heat illness. 

C. The Heat Hazard Was Likely to Cause Death or Serious Physical Harm If an 

Accident Occurred. 

To show that a hazard was likely to cause death or serious harm, the Secretary does 

not have to show that an injury is likely to occur but instead that death or serious physical 

harm could result if an accident occurred. The Duriron Co., 11 BNA OSHC 1405, 1407 (No. 

77-2847, 1983). It is undisputed that heat exposure can cause serious harm ranging from 

heat exhaustion to heat stroke, conditions which can require medical attention. ALJ Dec. 13; 

CX-10; CX-14; RX-9. 

Moreover, M.R.'s exposure to the heat hazard contributed to his development of heat 

stroke, and ultimately to his death. M.R. was admitted to the hospital with a core body 

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temperature of 105.4 degrees and diagnosed with heat stroke after working in the heat at the 

Sturgill job site for five hours. CX-13 at 5; CX-16 at 4, 6. Every one of the multiple doctors 

who treated M.R. in the hospital agreed with this diagnosis. CX-16 passim. Twenty-one days 

later, M.R. died in the hospital. Tr. 9. The coroner's report concluded that M.R. died of 

complications from heat stroke. CX-8; Tr. 308. 

In addition, the Secretary's expert witness, Dr. Theodore Yee, reviewed the medical 

records of the treating physicians, and testified that occupational heat exposure - working in the 

heat conditions on the roof - contributed to M.R.'s development of heat stroke. Tr. 82. The fact 

that M.R. died of heat stroke shows that if the heat hazard did cause heat illness, death or serious 

physical harm was likely to result. Nat'/ Realty & Constr. Co. v. OSHRC 489 F.2d 1257, 1265 

n.33 (D.C. Cir. 1973) (employee's death while riding equipment indicated the potential for injury 

of that activity); Georgia Elec. Co. v. Marshall, 595 F.2d 309,322 (5th Cir. 1979) (death that 

occurred from reversed control lever convincing evidence of the seriousness of the hazard); 

Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 910 (7th Cir. 1977) (fact that dumping 

activity caused death at least prima facie evidence that the hazard was serious); Western 

Massachusetts Elec. Co., 9 BNA OSHC 1940, 1947 (No. 76-1174, 1981 (fatal explosion 

accident further evidence that explosion hazard was serious). 

D. Sturgill Could Have Feasibly Abated the Heat Hazard. 

To show that the proposed abatement measures are feasible, the Secretary must show that 

the measures are capable of being put into effect and that they would materially reduce the 

hazard. Arcadian Corp., 20 BNA OSHC 2001, 2011 (No. 93-0628, 2004). As demonstrated 

below, the record shows that the proposed abatement measures are feasible. 

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First, the Secretary's proposed implementation of an acclimatization plan, ALJ Dec. 16, is 

feasible because, as the Secretary's expert explained, acclimatization materially reduces the heat 

hazard by increasing an employee's ability to cool off in the heat: "Without acclimatization[,] 

you can sweat about a gallon of water an hour. With acclimatization[,] you can sweat two to 

three gallons of water per hour. What that means is you can dissipate heat from your body much 

faster. That's one of the reasons why acclimatization is so important." Tr. 159. Both the Centers 

for Disease Control and Prevention (CDC) and the National Roofing Contractors Association 

(NRCA) recommend acclimatization. The CDC advises that "[g]radual exposure to heat gives 

the body time to become accustomed to higher environmental temperatures. Heat disorders in 

general are more likely to occur among workers who have not been given time to adjust to 

working in the heat .... " CX-9 (CDC, "Working in Hot Environments") at 5. Furthermore, an 

NRCA toolbox talk, which Sturgill presented to its permanent employees but not to M.R., urges 

employees to "[work] up to it. It can take about two weeks to get used to working in a hot 

environment." CX-14 (NRCA, "Heat Stress"). 

Second, the Secretary's proposed requirement that employees wear loose-fitting reflective 

clothing in the heat, ALJ Dec. 16, is feasible because such clothing tends to reflect heat while 

dark clothing, such as that worn by M.R., tends to absorb and retain heat. Both the CDC and the 

NRCA recommend such clothing because it keeps the worker cooler, i.e., materially reduces the 

heat hazard. CX-9 at 6; CX-10 at 1. 

Third, the Secretary's proposed implementation of a formalized work-rest regimen based 

on weather conditions, increasing the ratio of rest periods to work periods when appropriate, ALJ 

Dec. 16-17, is feasible because such work-rest cycles materially reduce the heat hazard by giving 

the body an opportunity to get rid of excess heat, slowing down the production of internal body 

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heat, slowing down the heart rate, and increasing the blood flow to the skin. CX-5 at 18 (OSHA, 

"About Work/Rest Schedules"). Such a regimen is also supported by the CDC and the NRCA. 

CX-9 at 6 (recommending shorter but frequent work-rest cycles in hot work environme:nts); CX10 at 1 (recommending more frequent breaks in hot weather) 

Fourth, the Secretary's proposed implementation of a specific, formalized hydration 

policy requiring employees to drink water at regular intervals when working in the heat, ALJ 

Dec. 18, is feasible. The CDC explained that a formal hydration policy would ensure that 

employees drink when they need to drink and not wait until they are thirsty: "Because so many 

heat disorders involve excessive dehydration of the body, it is essential that water intake during 

the workday be about equal to the amount of sweat produced. Most workers exposed to hot 

conditions drink less fluids than needed because of an insufficient thirst drive." The CDC 

recommends that " [a] worker ... should not depend on thirst to signal when and how much to 

drink. Instead, the worker should drink 5 to 7 ounces of fluids every 15 to 20 minutes to 

replenish the necessary fluids in the body." CX-9 at 6. The NRCA advises employees to follow 

a similar policy: "[d]rink plenty of water during the day- don't wait until you feel thirsty." 

CX-14. 

Finally, the Secretary's proposed practice of monitoring employees for signs and 

symptoms of heat illness is feasible. This practice of monitoring employees for heat iHness 

would materially reduce the heat hazard because, as the CDC explained, "[e]arly recognition 

and treatment of heat stroke are the only means of preventing permanent brain damage or 

death." CX-9 at 3. The CDC notes that many industries have attempted to reduce the hazards 

of heat stress by training workers in the recognition and prevention of heat stress. CX-9 at 5. 

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The NRCA instructs employees to cool down co-workers immediately and call an ambulance if 

the employees note signs of heat stroke - dry, red skin and strange behavior. CX-10 at l. 

Sturgill argues that the record does not establish that the Secretary's proposed abatement 

measures were feasible, because the Secretary failed to prove that these measures were standard 

practice in the roofing industry. Sturgill lnit. Brf. at 28. But whether proposed measures are 

standard in the industry is not a criterion for determining feasibility. If it were, the Sei:::retary 

would be forced to accept the level of safety achieved by industry practices, even if such 

practices were unsafe. Beverly Hills Enters., 19 BNA OSHC 1161, 1191 (Nos. 91-3144, 92-

238, 92-819, 92-1257, 93-724, 2000) ("The question is whether a precaution is recognized by 

safety experts as feasible, and not whether the precaution's use has become customary"). 

Sturgill further notes that heat guidelines such as those issued by the CDC, are not legally 

binding. Sturgill, lnit. Brf. at 28. But whether the guidelines are legally binding is not the issue 

- the guidelines reflect the opinions of experts on the causes and prevention of heat illness and 

demonstrate the likely utility of the particular abatement measures the Secretary proposed. 

Sturgill does not seriously dispute the efficacy of the proposed measures, nor does it dispute 

their economic and technological feasibility. Accordingly, Sturgill's argument should be 

rejected. 

E. Sturgill Knew, or Reasonably Could Have Known, of the Hazardous Condition. 

As shown above, Sturgill had actual knowledge of the hazardous conditions ex.isting on 

August 1, 2012. Foreman Brown realized early that morning that it would be hot that day, and 

even hotter on the roof. See supra p. 14. He was also obviously aware of the working 

conditions, including the presence of direct sunlight, and the nature of M.R. 's work activities. 

Sturgill also knew, through Superintendent Gould, and Foreman Brown, that temporary 

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employee M.R. had not received the same training on heat hazards as the permanent employees. 

See supra p. 7. Thus, Sturgill knew, or reasonably could have known, that M.R. would be 

exposed to a heat hazard without the heat training that Sturgill gave to its permanent employees. 

Sturgill further knew, or reasonably could have known, that M.R. was not acclimatized 

to the heat. Sturgill could have learned from the temporary agency and from M.R. directly what 

his previous jobs and working conditions were, and whether he needed to be acclimatized to the 

heat. But Sturgill did not make these inquiries and allowed an unacclimatized, 60-year-old 

employee to be exposed to direct sunlight on a hot day while performing strenuous roofing 

work for five hours. 

On review, Sturgill argues that it was not aware that a heat hazard existed. Sturgill Init. 

Brf. at 29-30. But the employer knowledge element of the Secretary's case does not require 

proof that Sturgill knew that the conditions on August 1, 2012 were actually hazardous. It is 

sufficient that Sturgill was aware of the conditions that created the hazard. Phoenix Roofing, 17 

BNA OSHC at 1079-80 (employer knowledge is awareness of the physical conditions that 

constitute a violation, not recognition that those conditions were actually hazardous). There is 

no dispute that Sturgill was aware of the conditions existing on the cited date. 

Sturgill also asserts that it was not aware ofM.R.'s age and physical infirmities and 

could not have questioned M.R. on these subjects without violating the Americans with 

Disability Act (ADA). Sturgill further asserts that it could not have prohibited M.R. from 

working based on his age and pre-existing medical conditions without violating both the ADA 

and the Age Discrimination in Employment Act (ADEA). Sturgill Init. Brf. at 25-26 These 

claims are largely irrelevant because the general duty clause violation here does not tum on 

M.R's particular susceptibility to heat because of his age or physical infirmity. As discussed 

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supra pp. 3, 5, 10-11, the hazard of heat illness created by the working conditions on August 1, 

2012 affected all employees working on the roof, not just M.R. While the conditions were more 

likely to cause a fatal heat stroke in an older worker such as M.R., younger workers also faced 

an increased risk of illnesses ranging from heat cramps to heat exhaustion. ALJ Dec. at 15 

(citing Dr. Yee's expert opinion). The proposed abatement measures would materially reduce 

the risk faced by all workers, not just M.R. 

In addition, the factors primarily relevant to M.R. 's increased risk were that he was not 

acclimated to working in hot weather, and was not trained to recognize the symptoms of heat 

illness. Sturgill could have known of these factors without running afoul of the ADA. 

The ADA prohibits only inquiries about whether an employee has a disability, or about 

the nature and severity of the disability, unless the inquiry is shown to be job-related and 

consistent with business necessity. 29 U.S.C. § 12112(d)(4). The ADA does not prohibit 

asking an employee whether he or she can perform job functions. EEOC, "Enforcement 

Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the 

ADA" at 4, attached to Sturgill Init. Brf. Sturgill has not shown that asking M.R. what his 

previous jobs and working conditions were would be likely to elicit information about a 

disability. The ADA does not prohibit questions that are unlikely to elicit such information. 

EEOC Guidance at 4. Furthermore, even if such questions would be likely to do so, the ADA 

permits them when the Occupational Safety and Health Act requires them. EEOC Guidance at 

15; 29 C.F.R. § 1630.15 ("It may be a defense to a charge of discrimination under this part that 

a challenged action is required or necessitated by another Federal law or regulation ... "). 

The questions that the ALJ found that Sturgill should have asked M.R. were dfsigned to 

determine whether he needed heat acclimatization, not to deny him a position or advancement, 

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or to discharge him. As such, these questions are not barred by the ADA, which was enacted to 

prevent discrimination against people with disabilities, not to prevent workers from getting the 

protective training they need to do their jobs safely. 6 

II. Sturgill Failed to Provide Adequate Training to its Employees on How to Recognize and 

and Avoid Heat Hazards. 

To prove a violation of the training provision, 29 C.F.R. § 1926.2l(b)(2), the Secretary 

must show that the cited employer failed to instruct employees on how to recognize and avoid 

the unsafe conditions which they may encounter on the job. O'Brien Concrete Pumping Inc., 18 

BNA OSHC 2059, 2061 (No. 98-0471, 2000). An employer's instructions must be spe:cific 

enough to advise employees of the hazards associated with their work and the ways to avoid 

them, and modeled on the applicable OSHA requirements. Id. 

Sturgill violated the training provision because the company did not provide adequate 

training to its permanent and temporary employees on how to recognize and avoid heat hazards. 

The record shows that temporary employees did not get the safety training, including heat hazard 

training, that its permanent employees got, and that Sturgill knew about this disparity. Tr. 470-

71 (Gould); Tr. 518-19 (Brown); CX-13 at 11-12 (Brown). Thus, temporary employee~s were 

exposed to the same heat hazards as permanent employees but without proper training .. 

Foreman Brown's generalized instructions to M.R. on heat hazards, see supra p. 4, were 

insufficient because they did not include information on the need for frequent breaks, the 

importance of drinking water even before thirsty, and how to recognize the signs and symptoms 

of heat illness. Instead, Foreman Brown merely showed M.R. the safety warning lines,. the water 

6 The same analysis applies to the ADEA, which prohibits job discrimination on the basis of 

age, not protective training for older workers. No question that the ALJ suggested that Sturgill 

should have asked M.R. about his previous jobs and working conditions would have violated the 

ADEA's prohibitions on age discrimination, 29 U.S.C. § 623(a). 

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coolers and the break area, and told M.R. to let him know if he (M.R.) got hot and needed an 

extra break. Tr. 497-98, 508-09, 511-12; Cx-13 at 4. Furthermore, although M.R. displayed 

some of the classic symptoms of heat stroke - excessive sweating, confusion, disorientation and 

altered behavior (refusing to speak to co-workers, walking clumsily, Tr. 504, 516; CX-13 at 7, 

12), CX-5 at 16; CX-9 at 3; CX-14, Foreman Brown did not recognize these symptoms and did 

not request medical attention until after M.R. collapsed and started shaking. Tr. 9, 504-05, 508, 

516; CX-13 at 5, 7, 12. 

Sturgill's heat hazard training for permanent employees was also deficient because it did 

not give specific instructions on the need to acclimate new employees or specific guidance on 

how to implement an acclimation program. Cx-13 at 11. Indeed, on M.R.'s first day, Foreman 

Brown did not even know how long it took a new worker to acclimate to the heat. Tr. 520. 

CONCLUSION 

For the above reasons, the ALJ's decision should be affirmed. 

June 17, 2015 

M. PATRICIA SMITH 

Solicitor of Labor 

ANN ROSENTHAL 

Associate Solicitor of Labor for 

Occupational Safety and Health 

CHARLES F. JAMES 

Counsel for Appellate Litigation 

SCOTT GLABMAN 

Senior Appellate Attorney 

U.S. Department of Labor 

Frances Perkins Bldg., Room S-4004 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210-0001 

(202) 693-5493 

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CERTIFICATE OF SERVICE 

I hereby certify that, on this 17th day of June 2015, I served a copy of the preceding 

Brief for the Secretary of Labor by fax on: 

Robert T. Dunlevey, Jr. 

Dunlevey, Mahan &Furry 

110 N Main Street 

Dayton, Ohio 45402-1738 

(Ph. No. (937) 223-6003 

(Fax No.: (937) 223-8550 

SCOTT GLABMAN 

Attorney for the Secretary of Labor 
06/17/2015 20:25 FAX 2026935466 SOL/OSH 

UNITED STATES DEPARTMENT OF LABOR 

OFFICE OF THE SOLICITOR 

WASHINGTON, D.C. 20210 

FACSIMILE MESSAGE DATE: June 17, 2015 

PLEASE HAND DELIVER THE FOLLOWING DOCUMENTS TO: 

NAME: 

FIRM: 

FAX#: 

FROM: 

John X. Cerveny. 

Executive Secretary 

Occupational Safety and Health Review Commission 

606-5050 

Scott Glabman, Esq. 

(202) 693-5493 (phone) 

(202) 693-5466 (fax) 

OFFICE#: 

TOTAL NUMBER OF PAGES INCLUDING COVER SHEET: 30 

~001/030 

PLEASE CALL IMMEDIATELY IF THE COPY YOU RECEIVE IS INCOMPLETE OR 

ILLEGIBLE. 

DESCRIPTION OF DOCUMENT(S) TRANSMITTED: 

Brief for the Secretary of Labor in A. H. Sturgill Roofing, Inc., OSHRC Docket No. 13-0224 
06/17/2015 20:25 FAX 2026935466 

U.S. Depar1:me nt of Labor 

VIA FACSIMILE 

June 17, 2015 

John X. Cerveny 

Executive Secretary 

SOL/OSH 

Office of the Solicitor 

Washington, D.C. 20210 

Occupational Safety and Health Review Commission 

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

Washington, D.C. 20036-3457 

Re: A. H Sturgill, Inc., No. 13-0224 

Dear Mr. Cerveny: 

I fax herewith the Brief for the Secretary of Labor in this case. I have also faxed a copy 

of the brief to opposing counsel as indicated in the certificate of service attached tc· the 

end of the document. 

Sincerely, 

Scott Glabman 

Senior Appellate Attorney 

U.S. Department of Labor 

Office of the Solicitor 

Room S-4004 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

(202) 693-5493 

Glabman.Scott@DOL. GOV 

cc: Robert T. Dunlevey, Jr., Esq. 

~002/030