Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

OSHRC Docket No. 18-0188

U.S. POSTAL SERVICE,

Respondent.

APPEARANCES:

Jennifer L. Gold, Attorney; Louise McGauley Betts, Senior Attorney; Oscar L. Hampton, III,

Regional Solicitor; Kate S. O’Scannlain, Solicitor of Labor; U.S. Department of Labor,

Philadelphia, PA and Washington, D.C.

For the Complainant

Miriam Dole, Attorney; U.S Postal Service, Eastern Area Law Office, Philadelphia, PA

For the Respondent

REMAND ORDER

Before: SULLIVAN, Chairman; and ATTWOOD, Commissioner.

BY THE COMMISSION:

The Occupational Safety and Health Administration issued U.S. Postal Service a one-item

citation alleging an other-than-serious violation of 29 C.F.R. § 1904.135(b)(1)(iv), a

recordkeeping regulation that prohibits employers from “discharg[ing] or in any manner

discriminat[ing] against any employee for reporting a work-related injury or illness.” The citation

alleges that USPS retaliated against two mail carriers in its Mount Oliver Branch in Pittsburgh,

Pennsylvania, by issuing “a seven-day working suspension” to each of them after each one

reported a work-related injury. Following a hearing, Administrative Law Judge Keith E. Bell

vacated the citation, concluding that the Secretary failed to establish that USPS’s proffered reasons

* Commissioner Laihow has recused herself from participation in this case.

for disciplining the mail carriers were pretextual. For the following reasons, we set aside the

judge’s decision and remand this case for further proceedings consistent with this opinion.

The citation sets forth two instances of violation based on each reported injury. The first

involves a mail carrier who injured his shoulder while lifting a sack of mail to load it onto a mail

truck. He reported his injury to his immediate supervisor, who then sent the mail carrier to the

Mount Oliver Branch’s acting manager. After meeting with the mail carrier, the acting manager

recommended that he be disciplined, and the discipline was later imposed. The Secretary argues

that USPS disciplined the mail carrier for merely reporting an injury, whereas USPS maintains

that its disciplinary action was justified given the acting manager’s claim that the mail carrier

demonstrated an improper lifting technique when reenacting how he injured his shoulder.

There is conflicting testimony, however, on whether the mail carrier actually reenacted

how he lifted the mail sack. Both the acting manager and the mail carrier testified that they

discussed the injury soon after it occurred. But the acting manager also testified that the mail

carrier “came into my office and demonstrated to me how he injured his shoulder.” In response to

further questioning on this issue, the acting manager explained that he asked the mail carrier to

demonstrate how he had lifted the mail sack, and that the acting manager could “tell right from

[the mail carrier’s demonstration] that he did not use his knees to lift.” In contrast, the mail carrier

testified that he was in the acting manager’s office for “[p]robably five minutes,” and he confirmed

that he did not reenact his lifting method for the acting manager and that the acting manager said

nothing to him about “unsafe acts.”

Resolving this conflict is central to the alleged instance of violation—if no reenactment

took place and, therefore, an improper lifting technique was never demonstrated by the mail

carrier, then USPS’s purported justification for imposing discipline is unsupported. The judge,

In assessing whether the Secretary established USPS’s failure to comply with

§ 1904.35(b)(1)(iv), the judge applied the burden-shifting framework articulated by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which involved a

discrimination claim under Title VII of the Civil Rights Act of 1964. See, e.g., Acosta v. Lloyd

Indus., Inc., 291 F. Supp. 3d 647, 653 (E.D. Pa. 2017) (noting that three-step burden-shifting test

requires plaintiff to “make a prima facie case of retaliation,” defendant to identify “an appropriate

non-discriminatory reason for its action,” and plaintiff to prove that “proffered reason is

pretextual”).

We note that the acting manager also recommended disciplinary action for the other mail carrier

at issue in the citation and that action was imposed as well. Although it is not relevant to this

remand order, both disciplinary actions were later rescinded.

however, made no credibility determinations—demeanor-based or otherwise—to explain why he

appears to have discounted the mail carrier’s testimony in favor of the acting manager’s

testimony. See American Wrecking Corp., 19 BNA OSHC 1703, 1714-15 (No. 96-1330, 2001)

(consolidated) (remanding for “credibility determinations based on the demeanor of the witnesses

on the stand”; noting that “the judge is the one who has ‘lived with the case, heard the witnesses,

and observed their demeanor’ ” (citation omitted)); Agra Erectors, Inc., 19 BNA OSHC 1063,

1066 (No. 98-0866, 2000) (remanding case to judge to make credibility determinations regarding

conflicting testimony because judge who heard case is best qualified to make such findings).

Given the conflicting testimony on this key issue, the judge on remand “must give reasons for

crediting the testimony of one witness over that of another that are ‘accompanied by summaries of

pertinent testimony and reasons for crediting the testimony.’ ” Agra Erectors, Inc., 19 BNA OSHC

at 1066 (citation omitted).

Such credibility determinations are also pertinent to the second alleged instance, which

concerns a mail carrier who suffered a dog bite injury while delivering mail. The same acting

manager investigated that incident and, as noted, recommended that disciplinary action be taken

against the mail carrier. As such, the judge should also evaluate to what extent, if any, his

assessment of the witnesses’ credibility affects his findings with regard to that instance. Finally,

although we have identified only a single example of conflicting testimony, the judge should also

reevaluate the entire record to ascertain whether there is any other conflicting testimony that should

be resolved through credibility determinations, or whether there are other circumstances that may

bear on the witnesses’ credibility. See Lake County Sewer Co., 22 BNA OSHC 1522, 1524 (No.

Addressing the Secretary’s argument that “[t]here is no evidence to support that [the mail carrier]

lifted improperly, and no witnesses to either his lifting or his alleged reenactment,” the judge noted

that the USPS labor relations specialist who drafted the mail carrier’s disciplinary letter

“corroborated [the acting manager’s] testimony” that the mail carrier reenacted an improper lifting

technique. The labor relations specialist testified that he communicated with only the acting

manager—and not the mail carrier—before drafting the letter, and that the acting manager told

him about the purported reenactment and asserted that the mail carrier had demonstrated this

improper technique. Although the labor relations specialist testified that he had received other

documentation concerning the incident, including the results of a pre-disciplinary investigation, he

admitted that absent his conversation with the acting manager, he may have opted not to pursue

discipline. In short, the labor relations specialist did not observe the purported reenactment; his

testimony was based solely on what the acting manager told him about it. Thus, while the labor

relations specialist’s testimony shows that the acting manager consistently claimed there was a

reenactment, it does not by itself explain why the judge apparently found the acting manager’s

version of events more credible than the contrary version testified to by the mail carrier.

07-1786, 2009) (remanding case to judge to “address all conflicting testimony, as well as any other

record evidence relevant to [disputed] issue, making credibility findings where necessary”).

Accordingly, we set aside the judge’s decision and remand for the judge to make credibility

determinations concerning evidence that is relevant to whether USPS retaliated against its two

mail carriers for reporting work-related injuries, including the conflicting testimony specified

above, and to reconsider in light of these determinations whether the Secretary established a

violation of § 1904.135(b)(1)(iv).

SO ORDERED.

/s/

James J. Sullivan, Jr.

Chairman

/s/

Cynthia L. Attwood

Dated: July 28, 2020 Commissioner

In his decision, the judge questions the citation’s failure to specify a means of abatement.

Specifically, the judge cites OSHA’s interim enforcement procedures for the new recordkeeping

regulation, which were in place at the time the citation was issued and required as follows: “The

citation must include remedies for the aggrieved employee, such as back wages, removal of

disciplinary action, reinstatement of lost time and wages, etc., where appropriate” as well as “the

means for abatement of the underlying policy or procedure that is related to the merit

determination.” Memorandum from Directorate of Enforcement Programs to Regional

Administrators, Interim Enforcement Procedures for New Recordkeeping Requirements under 29

CFR 1904.35 (Nov. 10, 2016). To the extent the judge relied on this rationale as a basis for

vacating the citation, he erred. There is no requirement under the Occupational Safety and Health

Act, OSHA’s recordkeeping regulations, or Commission precedent that compels the Secretary to

specify a means of abatement in a citation alleged under 29 C.F.R. § 1904.35(b)(1)(iv). See 29

U.S.C. § 658(a) (citation “shall be in writing and shall describe with particularity the nature of the

violation, including a reference to the . . . regulation . . . alleged to have been violated” and “shall

fix a reasonable time for the abatement of the violation”). Moreover, the Commission has long

held that while OSHA’s internal manuals may “provide[] guidance to OSHA professionals,” they

“[do] not have the force and effect of law, nor [do they] confer important procedural or substantive

rights or duties on individuals.” Caterpillar Inc., 15 BNA OSHC 2153, 2173 n.24 (No. 87-0922,

1993). The judge shall take this ruling into account in reaching his decision on remand.

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. 18-0188

U.S. POSTAL SERVICE,

Respondent.

Appearances: Kate S. O’Scannlain, Solicitor of Labor

Oscar L. Hampton, III, Regional Solicitor

Jennifer L. Gold, Attorney

U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania

For the Complainant

Miriam Dole, Attorney

U.S. Postal Service, Eastern Area Law Office, Philadelphia, Pennsylvania

For the Respondent

Before: Keith E. Bell

Administrative Law Judge

DECISION AND ORDER

This case concerns a claim of alleged discrimination for reporting work-related injuries. It

is brought under a new anti-discrimination regulation recently promulgated and published on May

12, 2016, under authority from the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-

678 (OSH Act). Around May and June 2017, two postal workers for the Mt. Oliver branch of the

United States Postal Service (USPS or Respondent) in Pittsburgh, Pennsylvania reported their

work-related injuries to their management. After an internal pre-disciplinary investigation, the

USPS suspended them with pay for alleged violations of USPS safety rules. Shortly thereafter, a

union steward filed whistleblower complaints on their behalf with the Occupational Safety and

Health Administration (OSHA), which commenced two separate, parallel investigations: (1)

pursuant to § 11(c) of the OSH Act , and (2) pursuant to the recently promulgated anti-

discrimination regulation under part 1904 (“Recording and Reporting Occupational Injuries and

Illnesses”) subpart D (“Other OSHA Injury and Illness Recordkeeping Requirements”) at 29

C.F.R. § 1904.35(b)(1)(iv).

A few weeks after the whistleblower complaint was filed, the USPS rescinded both

disciplinary suspensions and expunged the discipline from the records of both injured postal

workers. (Exs. JX-7 at 1, JX-14 at 1.) Less than two weeks later, OSHA closed out the § 11(c)

Section 11(c) of the OSH Act states in pertinent part:

(1) No person shall discharge or in any manner discriminate against any employee

because such employee has filed any complaint or instituted or caused to be

instituted any proceeding under or related to this Act or has testified or is about to

testify in any such proceeding or because of the exercise by such employee on

behalf of himself or others of any right afforded by this Act.

(2) Any employee who believes that he has been discharged or otherwise discriminated

against by any person in violation of this subsection may, within thirty days after

such violation occurs, file a complaint with the Secretary alleging such

discrimination. Upon receipt of such complaint, the Secretary shall cause such

investigation to be made as he deems appropriate. If upon such investigation, the

Secretary determines that the provisions of this subsection have been violated, he

shall bring an action in any appropriate United States district court against such

person[.]

29 U.S.C. § 660(c).

Published on May 12, 2016, § 1904.35(b)(1)(iv) states: “You must not discharge or in any

manner discriminate against any employee for reporting a work-related injury or illness.” 29

C.F.R. § 1904.35(b)(1)(iv).

investigation. However, the other investigation, under § 1904.35(b)(1)(iv), continued. On

November 28, 2017, OSHA issued a Citation to USPS alleging an other-than-serious violation of

§ 1904.35(b)(1)(iv) and proposing a $5,432 penalty. The Citation required the USPS to abate the

alleged violation by December 8, 2017. Nothing in the Citation specified how the USPS was to

achieve abatement.

Respondent received the Citation on November 30, 2017 and filed a late notice of contest

(LNOC) on February 2, 2018, bringing this matter before the Occupational Safety and Health

Review Commission (Commission). A hearing was held in Pittsburgh, Pennsylvania on December

11 and 12, 2018. Both parties filed post-hearing briefs on March 21, 2019. On February 25, 2020,

the undersigned issued an Order Directing the Parties to File Supplemental Briefs by March 13,

2020 to address the sole issue of Respondent’s LNOC. The Secretary filed his supplemental brief

on March 5, 2020, Respondent filed its supplemental brief on March 13, 2020. As discussed

below, the Citation and proposed penalty are VACATED.

PART I: LATE NOTICE OF CONTEST

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 business affecting commerce within the meaning of

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

659(c). The record establishes that Respondent, as of the date of the alleged violation, was an

employer engaged in business affecting commerce within the meaning of section 3(5) of the OSH

Act. 29 U.S.C. § 652(5). See Amended Complaint & Answer at ¶¶ 4.

The record also reveals that Respondent filed an untimely notice of contest (NOC). The

OSH Act allows 15 working days “from the receipt” of the citation by the employer for the

employer to notify the Secretary of its intent to contest the citation. 29 U.S.C. § 659(a). At that

point, if an employer fails to file a timely NOC, “the citation and the assessment, as proposed, shall

be deemed a final order of the Commission and not subject to review by any court or agency.” 29

U.S.C. § 659(a).

The Citation for this matter was issued on November 28, 2017, sent by certified mail, and

signed as received by “Daniel Sowchah” at the USPS at 140 Brownsville Road, Pittsburgh, PA

15210. See Citation Certified Receipt. Next chronologically in the record is a “Notice of Contest”

addressed to OSHA Area Director Christopher Robinson that is dated February 2, 2018. In this

NOC, Respondent states that “[t]he documents were not received by the Safety and Law

Departments until February 2, 2018.” The next filing in the record is the Secretary’s Complaint,

in which the Secretary states the following in pertinent part:

1. On November 28, 2017, OSHA issued to Respondent a Citation and

Notification of Penalty. The Citation and Notification of Penalty is attached

hereto as Exhibit A and is incorporated by reference.

2. On February 2, 2018, Respondent notified the Secretary that he wishes to

contest the Citation and Notification of Penalty. Respondent’s notice of contest

is attached hereto as Exhibit B.

3. The Occupational Safety and Health Review Commission has jurisdiction over

this contest pursuant to Section 10(c) of the OSH Act, 29 U.S.C. § 659(c).

(Complaint and Amended Complaint at ¶¶ 1-3.)

In response, Respondent filed in its Answer the following:

1. It is admitted only that Complainant issued a citation, the remaining averments

are denied. Respondent specifically denies the validity of the citation, the

proposed penalty, and the date it was issued to Respondent.

2. Admitted.

3. Respondent admits jurisdiction pursuant to Section 10(c) of the Act.

(Answer at ¶¶ 1-3.) Respondent also raised as an affirmative defense, “[t]he Citation and

Notification of Penalty was not properly served on Respondent.” (Answer at 4.)

The record is silent regarding this NOC until February 25, 2020, when the undersigned

issued an Order Directing the Parties to File Supplemental Briefs to address the sole issue of

Respondent’s Late NOC. See Taj Mahal Contracting, 20 BNA OSHC 2020, 2023 (No. 03-1088,

2004) (“[A] court may sua sponte raise the issue of lack of jurisdiction (and indeed is under an

independent obligation to do so) when the matter comes to the attention of the court during the

course of proceedings”); Stone Container Corp., 9 BNA OSHC, 1832, 1833 (No. 15116, 1981)

(“As a jurisdictional question, the issue of the timeliness of a notice of contest can be raised by a

party or by the Commission, sua sponte, at any time during the proceedings”) citing Fed. R. Civ.

P. 12(h)(3)(“Whenever it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the action.”). Based on the date the

Citation package was received by the Respondent, Respondent’s NOC should have been filed by

December 21, 2017. Respondent’s NOC was not filed under February 2, 2018, approximately 6

weeks late.

The Secretary filed a brief on this issue on March 5, 2020, and Respondent filed a brief on

March 13, 2020. Both parties agree that Respondent’s NOC was untimely. (Sec’y Supp. Br. at 2;

Resp’t Supp. Br. at 6.) Accordingly, the Citation, as issued, is deemed a final order of the

Commission by operation of law. 29 U.S.C. § 659(a).

Relief from a final order of the Commission may be granted under Federal Rule of Civil

Procedure 60(b). Nw Conduit Corp., 18 BNA OSHC 1948, 1949 (No. 97-851, 1999); see also

Fed. R. Civ. P. 60(b) provides in relevant part: “On motion and just terms, the court may relieve

a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect[…, or] (6) any other reason that justifies relief. ” Fed.

R. Civ. P. 60(b)(1), (6).

George Harms Constr. Co., Inc., v. Chao, 371 F.3d 156 (3d Cir. 2004); J.I. Hass Co., Inc. v.

OSHRC, 648 F.2d 190 (3d Cir. 1981) (holding that the Commission has residual authority over

uncontested citations such that it may, in the exercise of its authority, grant relief under Rule

60(b)). The Secretary argues that Respondent’s LNOC “was the functional equivalent of a petition

for relief under Rule 60(b).” (Sec’y Br. at 2.) In its LNOC, Respondent claimed that “[t]he

documents were not received by the Safety and Law Departments until February 2, 2018.” The

Commission has construed informal statements such as these in LNOCs as motions for Rule 60(b)

relief (though typically in pro se cases). See, e.g., Secretary of Labor v. Kaposy, 607 F. Appx. 230

(3d Cir. 2015) (unpublished) (Commission treating Respondent’s letter as petition for relief from

judgment under Fed. R. Civ. P. 60(b)).

In its supplemental brief, Respondent requests relief due to “extraordinary circumstances”

and “excusable neglect.” (Resp’t Br. at 6-7 citing Commission Rule 33 note 1 “Under

extraordinary circumstances, the cited employer, an affected employee, or an authorized employee

representative may seek relief from the final order pursuant to Federal Rule of Civil Procedure

60[.]”). Excusable neglect falls under Fed. R. Civ. P. 60b)(1) and “extraordinary circumstances”

have typically fallen under Fed. R. Civ. P. 60(b)(6). Pioneer Invest. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) (Pioneer); Branciforte Builders, Inc., 9 BNA OSHC

2113, 2116-2117 (No. 80-1920, 1981).

A late filing may be excused under Fed. R. Civ. P. 60(b)(1) if the final order was entered

because of “mistake, inadvertence, surprise or excusable neglect.”

The moving party bears the burden of showing that it is entitled to such relief. Rule

60(b) provides that the judge may grant relief for reasons including “mistake,

inadvertence, surprise, or excusable neglect.” In determining excusable neglect,

the Commission takes into account “all relevant circumstances surrounding the

party's omission,” including: “the danger of prejudice to the [opposing party], the

length of the delay and its potential impact on judicial proceedings, the reason for

the delay, including whether it was within the reasonable control of the movant,

and whether the movant acted in good faith.”

Elan Lawn & Landscape Serv., Inc., 22 BNA OSHC 1337, 1339 (No. 08-0700, 2008) (citations

omitted).

A late filing may also be excused under Fed. R. Civ. P. 60(b)(6), for any other reason that

justifies relief, such as when “absence, illness, or a similar disability prevent[s] a party from acting

to protect its interests.” Branciforte Builders, Inc., 9 BNA OSHC at 2116-2117. A party seeking

relief under Rule 60(b)(6) “must show ‘extraordinary circumstances’ suggesting that the party is

faultless in the delay.” Pioneer, 507 U.S. at 393. Where a party is partly to blame for the delayed

filing, relief from the final order must be sought under Fed. R. Civ. P. 60(b)(1) and the party’s

neglect must be excusable. Id. The Third Circuit has emphasized that the Pioneer equitable

analysis requires consideration of “all relevant circumstances” surrounding a party’s request for

relief due to excusable neglect. Avon Contractors, Inc. v. Sec’y of Labor, 372 F.3d 171, 174 (3d

Cir. 2004. Therefore, the “control” factor must not be weighted too heavily at the expense of the

other relevant Pioneer factors. Id; see also Coleman Hammons Constr. Co. v. OSHRC, 942 F.3d

279, 283 (5 Cir. 2019) (same); George Harms Constr., 371 F.3d at 164 (same).

In the Third Circuit, where this case may be appealed, a decision to exercise discretion

under Fed. R, Civ. P. 60(b)(6) is “ ‘ available only in cases evidencing extraordinary

circumstances.’ ” Lasky v. Cont'l Prods. Corp., 804 F.2d 250, 256 (3d Cir.1986) (quoting Stradley

v. Cortez, 518 F.2d 488, 493 (3d Cir.1975)); Fed. R. Civ. P. 60(b)(6). Equitable factors guiding

the decision to grant relief include:

[1] the general desirability that a final judgment should not be lightly disturbed;

[2] the procedure provided by Rule 60(b) is not a substitute for an appeal;

[3] the Rule should be liberally construed for the purpose of doing substantial

justice;

[4] whether, although the motion is made within the maximum time, if any,

provided by the Rule, the motion is made within a reasonable time; ...

[5] whether there are any intervening equities which make it inequitable to grant

relief;

[6] any other factor that is relevant to the justice of the [order] under attack.

Kaposy, 607 F. App'x at 231 citing Lasky, 804 F.2d at 256 (citations omitted); see also Coltec

Indus., Inc. v. Hobgood, 280 F.3d 262, 274–75 (3d Cir.2002) (holding that the movant's particular

situation in the context of a Rule 60(b)(6) motion is vitally important). “The fundamental point of

60(b) is that it provides ‘a grand reservoir of equitable power to do justice in a particular

case.’ ” Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014).

Here, Respondent explains “that Daniel Sawchak was a craft employee, who was on his

4th day of a temporary detail as a 204b supervisor. He was asked but did not recall signing for the

letter or what he might have done with it.” (Resp’t Supp. Br. at 6.) Respondent then claims that

[o]nce Postal management became aware of the Citation, it acted promptly in

response, filing its NOC the very same day it received a copy of the Citation from

the Area Director. The Commission did not, at any time, object to the Late Notice

of Contest, and has not been prejudiced by the late Notice of Contest.

(Resp’t Supp. Br. at 9.) Even though Respondent’s employee mishandled the certified mailing of

the Citation, the Commission typically holds parties responsible for their mail-handling procedures

and Respondent has provided little to no support explaining why it should be excused for Mr.

Sawchak’s mishandling of the Citation. La.-Pac. Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266,

1989) (Commission expects employers to maintain orderly procedures for handling important

documents). The record also reveals that Respondent management knew about previous instances

of late filings in OSHA matters from “the WPA safety office” and about its OSHA history that “is

not acted on timely and an extension date or two are requested.” (Ex. JX-15 at 7-8.) As

Respondent has not explained why it should not be held responsible for Mr. Sawchak’s

mishandling of the Citation, and Respondent’s management was aware of previous instances of

untimeliness from that branch, the undersigned is unable to find that Respondent’s neglect in this

instance was excusable under Fed. R. Civ. P. 60(b)(1).

On the other hand, the Secretary claims that, at the time of Respondent’s late filing, the

Secretary did not oppose it and instead filed his Complaint. The Secretary further claims that,

“given that the parties’ pleadings were processed in the normal course, and this case has been tried

on the merits and briefed, we see no reason to oppose that petition now.” (Sec’y Supp. Br. at 2.)

The Commission has previously held, however, that “where an untimely NOC is docketed, under

Commission practice it is incumbent upon the Secretary to file a motion to dismiss the NOC as

untimely[.]” Taj Mahal Contracting, 20 BNA OSHC at 2022. Here, instead of filing the motion

to dismiss, the Secretary filed the Complaint, averring that the Commission had jurisdiction for

this matter under section 10(c) of the OSH Act, because the Secretary “did not oppose”

Respondent’s LNOC. (Sec’y Supp. Br. at 2.) The undersigned finds that, based on the Secretary’s

supplemental brief, the Secretary knew that Respondent’s filing was late, that the matter had been

deemed a final order, and yet, the Secretary did not specifically raise this issue to the undersigned’s

attention in the Complaint.

As each party notes, however, this case has proceeded despite the LNOC for over two

years, wherein the hearing was held and then the merits were fully briefed. The undersigned is

also mindful that Fed. R. Civ. P. 60(b) caselaw cautions that no one equitable factor should be

weighed too heavily, and that the aim is “to do justice in a particular case.” Cox, 757 F.3d at 122.

The undersigned finds that all share blame in cultivating this issue. No entity would be prejudiced

if this matter were to proceed after relief from the final judgment. Indeed, substantial justice would

be furthered if the merits were reached as all spent significant time preparing for, participating in,

and briefing the merits after, the hearing that was held in this matter.

Accordingly, the undersigned finds that this case barely passes muster for Fed. R. Civ. P.

60(b)(6) relief. It is particularly noted that the Secretary abdicated his responsibility to file a

motion to dismiss as is the practice before this Commission. Taj Mahal Contracting, 20 BNA

OSHC at 2022. However, the weight of the equitable factors for this case is in favor of reaching

the merits of this case. Relief is granted from the final order under Fed. R. Civ. P. 60(b)(6) as the

events in this matter constitute “extraordinary circumstances.”

PART II: MERITS

For the following reasons, the Citation is this matter is VACATED.

STIPULATIONS

The parties stipulated to the following facts:

1. At the time of the issuance of the discipline, [Postal Worker 1 (“PW1”)] was an

employee of USPS, and had been for approximately 20 years (start date on or about June

21, 1997).

2. At the time of the issuance of the discipline, [Postal Worker 2 (“PW2”)] was an employee

of USPS, and had been for just over one year (start date on or about April 16, 2016).

3. At all times relevant to this case, Clifford Mayfield was an employee of the Respondent

and a member of management.

4. At all times relevant to this case, Mayfield was eligible for Respondent’s pay-for-

performance compensation and incentive program.

5. At all times relevant to this case, Robin Derry, Supervisor, Customer Services, Mount

Oliver Branch of the Pittsburgh Post Office of USPS, was an employee of the

Respondent and a member of management.

6. At all times relevant to this case, Derry was eligible for Respondent’s pay-for-

performance compensation and incentive program.

For personal privacy reasons, the names of the injured employees have been redacted in this

Decision and Order.

At all times relevant to this case, this was Derry’s position. Derry is currently on extended

military leave, was thus unavailable for depositions, and is thus also unavailable for trial.

7. At all times relevant to this case, Harry Wolfe was an employee of the Respondent and a

member of management.

8. At all times relevant to this case, Wolfe was eligible for Respondent’s pay-for-

performance compensation and incentive program.

9. At all times relevant to this case, Gerst-Stewart was an employee of the Respondent and a

member of management.

10. At all times relevant to this case, Gerst-Stewart was eligible for Respondent’s pay-for-

performance compensation and incentive program.

11. At all times relevant to this case, Kammermeier was an employee of the Respondent and

a member of management.

12. At all times relevant to this case, Kammermeier was eligible for Respondent’s pay-for-

performance compensation and incentive program.

13. On May 15, 2017, [PW1] was injured during the performance of his duties on the job.

14. [PW1] was injured while moving a mail sack onto a truck.

15. On May 15, 2017, [PW1] reported his injury to USPS management.

16. [PW1] received medical treatment for his injuries.

17. On May 15, 2017, Wolfe conducted an investigation into the facts of [PW1’s] injury.

18. On/about May 15, 2017, Wolfe ordered [PW1] to be drug tested.

19. On/about May 17, 2017, Wolfe was informed that [PW1’s] drug test results were

negative.

20. On May 22, 2017, Mayfield conducted a Pre-Disciplinary Interview with [PW1], with

union steward David Bugay in attendance.

21. On May 31, 2017, Respondent disciplined [PW1], issuing him a seven day, no-time-off

suspension.

22. The grievance brought by [PW1] concerning his May 31, 2017 discipline was settled by

Acting Manager Louis Kammermeier on August 18, 2017, fully rescinding and

expunging the discipline from the affected employee’s file, stating “[e]vidence does not

support issued discipline.”

23. On June 1, 2017, [PW2] was injured during the performance of her duties on the job.

24. [PW2] was injured when she was bitten by a dog.

25. The dog that bit [PW2] was in the yard at 510 Augusta Street.

26. [PW2] was bitten by the dog while attempting to deliver mail to 514 Augusta Street.

27. On June 1, 2017, [PW2] reported her injury to USPS management.

28. [PW2] received medical treatment for her injuries.

29. On June 1, 2017, Wolfe conducted an investigation into the facts of [PW2’s] injury.

30. On June 2, 2017, Mayfield conducted a Pre-Disciplinary Interview with [PW2], with

union steward David Bugay in attendance.

31. On June 2, 2017, Respondent disciplined [PW2], issuing her a seven-day, no-time-off

suspension.

32. The grievance brought by [PW2] concerning her June 2, 2017 discipline was settled by

Acting Manager Louis Kammermeier on August 18, 2017, fully rescinding and

expunging the discipline from the affected employee’s file, stating “[e]vidence does not

support issued discipline.”

33. Memorandum from USPS’ Nancy L. Rettinhouse, Vice-President Employee Resource

Management to all USPS Area Vice Presidents re: OSHA Rule Change – November 1,

2016, dated October 6, 2016 is an authentic copy of a memorandum and business record

of the Respondent.

34. Regarding its intended trial exhibits, Respondent did not produce in discovery, in

response to the Secretary’s discovery requests, the following exhibits as listed by

Respondent in the Joint Prehearing Statement: RX-3, RX-9, RX-10, RX-11, RX-13, RX-

14, RX-15, RX-16, and RX-19.

35. Specifically, for its intended exhibits RX-17 and RX-18, as listed by Respondent in the

Joint Prehearing Statement, in its discovery responses, Respondent produced a link to a

web site, as in pertinent part below:

a. In response to Secretary’s Interrogatory No. 1: “Employee and Labor Relations

Manual (“ELM”), Section 814.2,

http://about.usps.com/manuals/elm/elmarch.htm”

b. In response to Secretary’s Interrogatory No. 12: “Employee and Labor Relations

Manual, in general at: http://about.usps.com/manuals/elm/elmarch.htm and

specifically, ELM Section 814.2”

36. The following OSHA memorandums and guidance are publicly available on OSHA’s

web site, and neither party objects to the admission of these exhibits as additional Joint

Exhibits:

a. JX-16 2016 11-10 Interim Enforcement Procedures for New Recordkeeping

Requirements Under 29 CFR 1904.35

b. JX-17 Implementation of the 2017 annual adjustment pursuant to the Federal

Civil Penalties Inflation Adjustment Act Improvement Act of 2015

c. JX-18 2016 10-19 Interpretation of 1904.35(b)(1)(i) and (iv)

d. JX-19 2018 10-11 Clarification of OSHA's Position on 1904

37. The Secretary confirms, and Respondent does not object, that the 11(c) portion of OSHA’s

investigation into the employee complaints of discrimination and retaliation at issue in

OSHRC Docket No. 18-0188 ended on or about September 1, 201[7] , and that OSHA

has closed both 11(c) claims. Both parties acknowledge that the § 1904 portion of OSHA’s

investigation continued on after that date and resulted in OSHA’s issuing the citation at

issue in the trial for OSHRC Docket No. 18-0188.

(“Stipulations”; Ex. JX-0; Tr. at 11-12.)

The context of this stipulation, as well as the record, support a finding that the “2018” as

written in Exhibit JX-0 is a typographical error and that the date intended to be stipulated to is

“September 1, 2017.”

BACKGROUND

This case concerns two postal workers (PW1 and PW2) employed by Respondent at the

Mt. Oliver Branch of the Pittsburgh Post Office located in Pittsburgh, PA. PW1 and PW2 are both

letter carriers and, at the time of their injuries, PW1 had been employed about 20 years and PW2

had been employed about 1 year by Respondent. (Stip. ¶¶ 1, 2.) PW1 injured his back when he

lifted a bag full of mail. The Secretary claims that Respondent retaliated against PW1 when

Respondent disciplined PW1 after he reported his injury to his manager. Respondent claims that

PW1 failed to follow proper and established safety protocol when lifting the mailbag and was

disciplined in accordance with Respondent’s worker safety program. PW2 was bitten on her arm

by a dog while attempting to deliver mail to a residence. The Secretary claims that Respondent

retaliated against PW2 when Respondent disciplined her after she reported a dog bite injury to her

manager. Respondent claims that PW2 failed to follow proper and established safety protocol

related to mail delivery around aggressive dogs and was disciplined consistent with its worker

safety program.

The disciplinary process in this case was conducted according to a contract in place

between Respondent and the National Association of Letter Carriers (NALC). (Tr. at 364-366,

393-394, 406-407). The process includes the participation of the employee at issue, the direct

supervisor, the manager, a higher-level official than the manager, and a union steward. (Tr. at

394.) In this case, the process was the same for both PW1 and PW2. After PW1 notified Acting

Manager Harry Wolfe of his injury, Wolfe talked with PW1 for 5-10 minutes and then sent PW1

to Concentra Medical (a medical provider for Respondent) for medical treatment. The same

process happened for PW2. (Stip. ¶¶ 16, 28; Tr. at 32, 35, 62, 213, 239, 271; Sec’y Br. at 9, 16).

No further information regarding Concentra Medical, and its relationship to Respondent and

its employees, is in the record.

With regard to PW1, PW1 testified that he did not demonstrate his lifting technique to

Wolfe during this conversation. (Tr. at 35.) In contrast, Wolfe testified that PW1 did demonstrate

to Wolfe his lifting technique upon his request during this conversation. (Tr. at 207.) Wolfe also

ordered PW1 to be drug tested that day, and the results were negative. (Stip. at ¶¶ 18, 19.)

Wolfe reported each injury to his boss, Maureen Gerst-Stewart, the Manager of Customer

Service Operations, Pittsburgh, via e-mail on or around the day of the incidents and before pre-

disciplinary interviews were conducted in each matter. (Tr. at 338-339; Ex. JX-15 at 2 (e-mail on

or around May 17, 2017 re: PW1), 4 (e-mail on June 1, 2017 re: PW2).) Subsequently, delivery

supervisor Clifford Mayfield conducted a pre-disciplinary interview (PDI) with each injured

employee, with both PDIs accompanied by union steward Dave Bugay. (Stip. ¶¶ 20, 30; Exs. JX-

3, 4, 10, 11).

Wolfe thereafter submitted formal discipline requests for both PW1 and PW2. (Tr. at 216,

240.) Mayfield delivered the discipline packages to Respondent’s Labor Relations office for their

consideration. (Tr. at 106 (PW1), 123-124 (PW2).) At Respondent’s Labor Department, Labor

Relations Specialist David Chludzinski reviewed the disciplinary packages, concurred with the

requested discipline, and drafted the discipline letters. (Tr. at 389-390, 394.) Shortly after, two

discipline letters were issued to the injured employees. Delivery Supervisor Robin Derry issued

the discipline to PW1, and Delivery Supervisor Clifford Mayfield issued the discipline to PW2

(signed by Robin Derry for Clifford Mayfield). (Exs. JX-6, 13.)

Due to the many people involved in the disciplinary process in this case, the undersigned

created a pictorial chart as shown in “Chart A,” to assist the reader in understanding who

participated in the disciplinary process, how much influence that person had, and at what point in

time that person took those actions relative to the other events that occurred in this case. The

record reveals that, as relevant to this case, Respondent’s organizational structure is complex with

overlapping relationships among Respondent’s management, workers, and union representatives.

Respondent’s Management Chain

CHART A: Respondent’s Management Chain.

The information in Chart A comes from the record and is used for visualization purposes. Chart

A is not intended to capture Respondent’s complete organizational structure of the people at

issue in this case, rather, it is intended to reflect the information that was provided in the record

as is relevant to the issues herein.

As Chart A indicates, PW1 and PW2 are the two postal workers who were injured in this

case. They both had been trained in the relevant safety protocols related to their job tasks. (Tr. at

50, 70-71.) They both reported their respective injuries to their manager at the time, Wolfe. (Tr.

at 31, 60, 204-206.) Wolfe was more senior in management than the delivery supervisors, Clifford

Mayfield and Robin Derry. (Tr. at 89, 137, 139; Ex. GX-13 at 1.) Mayfield and Derry were

equivalent in rank and directly supervised PW1 and PW2 depending on who was on duty at the

Mt. Oliver post office that day. (Tr. at 31, 89, 139, 332.) Both Mayfield and Derry directly

reported to Wolfe. (Exs. GX-13 at 1, GX-14 at 1.) Mayfield did “what [he] was told” by Wolfe

and conducted the PDIs of PW1 (May 22, 2017) and PW2 (June 2, 2017), with union steward

Dave Bugay also in attendance, as part of this disciplinary process. (Tr. at 106; Stip. ¶¶ 20, 30.)

Bugay is a letter carrier in the Mt. Oliver branch, as well as a union steward. (Tr. at 467-468.)

Chludzinski, the Labor Relations Specialist manager, reviewed the requested discipline in

this case. (Tr at 389.) Chludzinski’s concurrence with the disciplinary request was required by

the NALC contract as he was Wolfe’s “higher level official.” (Tr. at 394.) The purpose of the

concurrence is to have a “higher-level manager who presumptively has more experience, maybe a

little more levelheaded, can tell the new supervisor you’re not – this is excessive in this case. Or

vice versa.” (Tr. at 405.) Gerst-Stewart testified that the requesting official has the power to

override “Labor,” but never does, because “Labor” is the one familiar with the law. (Tr. at 364-

366.) Chludzinski did not talk with Wolfe’s delivery supervisors, Mayfield or Derry, regarding

the discipline during his review of the matters. (Tr. at 390, 394.) Chludzinski testified that he

reviews non-safety discipline requests with the goal of whether it would “be supported through the

grievance procedure” because he “didn’t want it to be some discipline that was issued that was just

going to get tossed in a grievance procedure.” (Tr. at 413.) Safety related disciplinary requests,

however, are different and, for example, he got “more in depth” with the disciplinary request at

issue in this case. (Tr. at 412-415.)

When Wolfe formally requested discipline for PW1 and PW2, Wolfe requested a 7-day no

time off suspension to be issued to them. (Exs. JX-5, 12.) According to Chludzinkski,

Respondent’s progressive disciplinary policy follows Respondent’s contract with NALC, which

gives discretion to the requesting official to “skip steps” based on “mitigating or aggravating

circumstances,” especially in his opinion for safety infractions. (Tr. at 402-405.) The steps in the

progressive disciplinary policy include: 1) discussion with the employee, 2) written warning, 3) 7-

day no time off suspension , 4) 14-day no time off suspension, and 5) possible termination. (Tr.

at 405-408.) With regard to PW1, Respondent’s contract with NALC required concurrence, verbal

or written, by a higher-level official than the one who requested the discipline. (Tr. at 394.) Here,

Chludzinski was Wolfe’s higher-level official. PW2, however, was a “non-career” employee and

was therefore not subject to the concurrence requirement of the NALC contract. (Tr. at 447.)

Chludzinski testified that he still spoke with Wolfe regarding the discipline for PW2, but any

anomalies in the paperwork for PW2 were not a potential procedural defect in the grievance

procedure and were therefore of no concern to him. (Tr. at 446-448.)

Chludzinski concurred with Wolfe’s requested discipline of a 7-day no time off suspension

for PW1 and PW2 and drafted their respective disciplinary letters. (Tr. at 412, 418-421.) The

letters were issued by the delivery supervisors and presented to PW1 on May 31, 2017 and to PW2

on June 2, 2017.

According to Chludzinski, the “no time off” suspensions were a relic from the negotiations

between Respondent and the NALC that “goes back [] to the 60’s…They’re just paper. But they

carry the same effect for purposes of progressive discipline.” (Tr. at 406-407). The employee still

goes to work, “they get paid…It’s just paper that goes in their file…for purposes of progressive

discipline it can be relied upon for the next level.” (Tr at. 407.)

Bugay filed a grievance on behalf of PW1 on June 8, 2017, and PW2 on June 16, 2017.

(Tr. at 68, 477; Exs. JX-7, 14; Resp’t Br. at 23 ¶ 84.) Bugay also filed retaliation complaints under

§ 11(c) of the OSH Act with OSHA on behalf of PW1on July 6, 2017, and PW2 on June 19, 2017.

(Tr. at 51, 82, 511, 524-525; Resp’t Br. at 17 ¶ 42, 23 ¶ 85.) In mid-July 2017, Louis Kammermier

replaced Wolfe and became the Acting Manager of the Mt. Oliver branch. (Tr. at 309, 320.) After

reviewing the disciplinary matters, Kammermier rescinded and expunged both disciplinary

suspensions in this case on August 18, 2017. (Exs. JX-7, 14.) For both rescinded disciplinary

measures, Kammermier determined that the “evidence does not support issued discipline.” (Tr. at

312-315; Exs. JX-7, 14.) He testified that he does not know who decided to issue the discipline.

(Tr. at 310.) Kammermier testified that the local manager, not the supervisor, is responsible for

the decision to send or not send the package requesting discipline. (Tr. at 334).

To recap the timeline of events of this case, and to tie them to OSHA’s investigation

actions, Table A summarizes the relevant events.

Timeline of Events

Event Date

PW1 injured and reported injury May 15, 2017 (Ex. JX-0 ¶¶ 13,15)

PW1 suspension May 31, 2017 (Ex. JX-0 ¶ 21)

PW2 injured and reported injury June 1, 2017 (Ex. JX-0 ¶¶ 23, 27)

PW2 suspension June 2, 2017 (Ex. JX-0 ¶ 31)

Whistleblower complaint filed June 2017 (Tr. at 524-525)

OSHA begins 11(c) investigation June 2017 (Tr. at 525)

OSHA begins 1904 investigation July 6, 2017 (Citation)

Discipline rescinded August 18, 2017 (Ex. JX-0 ¶¶ 22, 32)

Whistleblower complaint closed September 1, 2017 (Tr. at 526, 538-539; Ex.

JX-0 ¶ 37)

Management statements taken October 6, 2017 (Exs. GX-13, 14)

Citation issued November 28, 2017 (Citation)

TABLE A: Timeline of Events.

As Table A shows, PW1 was injured on May 15, 2017 lifting a mailbag and he reported

his injury to Wolfe that day. On May 31, 2017, PW1 was disciplined with a 7-day no time off

suspension. On June 1, 2017, PW2 was injured by a dog and she reported her injury to Wolfe that

day. The next day, PW2 was disciplined with a 7-day no time off suspension. In June 2017, union

steward Bugay filed a grievance and whistleblower complaint regarding the discipline of PW1 and

PW2. Shortly thereafter, also in June, OSHA began a § 11(c) investigation of the whistleblower

complaint.

On July 6, 2017, OSHA began a separate § 1904 investigation, under 29 C.F.R.

§ 1904.35(b)(1)(iv), which ultimately led to the Citation at issue here. Before either OSHA

investigation concluded, Respondent rescinded and expunged both disciplinary matters from the

records of both PW1 and PW2 on August 18, 2017. About two weeks later, on September 1, 2017,

OSHA closed out the § 11(c) investigation and complaint. On October 7, 2017, OSHA took

As noted above, he context of this stipulation, as well as the record, supports a finding that the

“2018” as written in Exhibit JX-0 is a typographical error and that the date intended to be

stipulated to is “September 1, 2017.”

Respondent management’s statements as previously planned during the § 11(c) investigation, but

subsequently used those statements for the § 1904 proceedings here. On November 28, 2017,

OSHA issued the Citation for this case.

An aspect of this case that will be addressed is Respondent’s National Performance

Assessment, Performance Evaluation System, Pay-for-Performance plan (“NPA-PES-PFP”), of

which the Secretary devoted almost 7 pages of his post-hearing brief. (Sec’y Br. at 21-27.) The

Secretary sets out in detail part of Respondent’s own business evaluation system and compensation

plan as relevant to the issues in this case. While the Secretary insists that he does not allege that

this compensation plan violates § 1904, he nevertheless claims that this compensation plan shows

Respondent’s “incentive for taking the adverse actions at issue.” (Sec’y Br. at 22 n.7.)

Respondent disagrees and claims that this “litigation is nothing more than an excessive

fishing expedition, in which the Secretary hopes to stumble upon some evidence which might

support their attempt to expand the allegation to include an indictment of Respondent’s incentive

programs.” (Resp’t Br. at 46.) Elsewhere in its brief, Respondent claims that OSHA is attempting

to use the cited standard under 1904 to “examine and evaluate an employer’s performance and

compensation programs, its training and evaluation of employees, including ‘all criteria’ used to

evaluate management.” (Resp’t Br. 42.) It is also noteworthy that no abatement was specified in

the Citation for this matter and no discipline remained on the subject employees’ records at the

time the Citation was issued.

DISCUSSION

I. The Standard Applies and the Citation is Valid

A. The Standard is Applicable

To establish a violation of a standard, the Secretary must establish its applicability, the

employer's noncompliance with it, employee access to the noncomplying condition, and the

employer's knowledge of the violation. Astra Pharma. Prods., Inc., 9 BNA OSHC 2126, 2129

(No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d. 69 (1st Cir. 1982). “It is well settled that

the test for the applicability of any statutory or regulatory provision looks first to the text and

structure of the statute or regulations whose applicability is questioned.” Unarco Commercial

Prods., 16 BNA OSHC 1499, 1502-1503 (No. 89-1555, 1993).

The standard at issue here states that the employer must not “discharge or in any manner

discriminate against any employee for reporting a work-related injury or illness.” 29 C.F.R.

§ 1904.35(b)(1)(iv). The Secretary alleges that Respondent, the employer, discriminated against

PW1 and PW2 after they reported their work-related injuries to Wolfe, their manager, by issuing

to each of them a 7-day no time off suspension. The undersigned finds that by its plain terms, the

standard applies to Respondent.

B. The Citation is Valid

Both parties filed motions for summary judgment in this matter in which the parties

addressed inter alia Respondent’s “ultra vires” affirmative defense that Respondent asserted in its

Answer. See Answer at 3; Complainant’s Motion for Partial Summary Judgment (Sept. 12, 2018);

Respondent’s Motion for Summary Judgment (Oct. 26, 2018); Secretary’s Response in Opposition

to Respondent’s Motion for Summary Judgment (Nov. 9, 2018); Respondent’s Reply to

Secretary’s Response to Respondent’s Motion for Summary Judgment (Nov. 16, 2018). While

both motions were denied, the parties address this issue again in their post-hearing briefs. See

Order Denying Complainant’s Motion for Partial Summary Judgment and Motion to Stay Pending

Ruling (Sept. 24, 2018); Order Denying Respondent’s Motion for Summary Judgment (Nov. 20,

2018).

Respondent argues that the Citation under the cited standard is invalid as ultra vires.

(Resp’t Br. at 29-42.) Respondent claims that OSHA exceeded its authority in promulgating the

cited standard because (a) “Congress created the exclusive tool for discrimination and retaliation

regulation in section 11(c) of the OSH Act,” (b) OSHA now has “new unlimited discrimination

causes of action,” (c) these “unlimited discrimination claims under section 1904 are arbitrary and

capricious,” and (d) “OSHA’s description of the unlimited authority granted by Congress violate

the non-delegation doctrine.”

The Secretary, on the other hand, argues that he had the authority to promulgate the cited

standard “under the recordkeeping authorities in the OSH Act, see 29 U.S.C. §§ 657(c)(1),

657(c)(2), 657(g)(2), 673(a), 673(e), and thus the Secretary’s reasonable interpretation of the Act

is entitled to controlling deference under Chevron USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984).”

(Sec’y Br. at 29.) The Secretary also refers to a recent well-researched and well-reasoned order

issued by Commission ALJ William S. Coleman on this same issue in a similar matter before the

Commission. See U.S. Postal Serv., OSHRC No. 18-0462, Order Granting Secretary’s Motion for

Partial Summary Judgment on Affirmative Defenses Numbered 8 & 9 in Respondent’s Answer

(Dec. 27, 2018) (Coleman Order).

The undersigned has reviewed the parties’ arguments in their post-hearing briefs and in

their motions for summary judgment (and oppositions and responses thereto). The undersigned

also reviewed the Coleman Order and hereby incorporates by reference into this Decision its

detailed analysis of this issue into this Decision. See Attachment A. For the following reasons,

the undersigned rejects Respondent’s arguments and agrees with the Secretary that the Citation in

this matter is valid.

As the Secretary notes, that case settled shortly after Judge Coleman issued that order. U.S.

Postal Serv., No. 18-0462, Consent Order Approving Settlement (Feb. 26, 2019); Sec’y Br. at 30

n.10.

The Coleman Order addresses the same arguments Respondent raises in this case. It begins

by reviewing the statutory and regulatory background to analyze the Secretary’s authority to

promulgate recordkeeping regulations. (Coleman Order at 3-5.) The standard at issue here was

promulgated pursuant to sections 2(b), 8(c)(2), 8(g)(2), and 8(c)(1) of the OSH Act. (Coleman

Order at 5-13.) Section 9(a) then gives the Secretary the duty and the power to enforce this

regulation by conducting inspections and issuing citations. (Coleman Order at 4.) During the

promulgation of the subject regulation, the Secretary addressed comments regarding the standard’s

similarity to section 11(c). (Coleman Order at 8-13.) The Secretary stated that “the principal

motivation for the proposed anti-retaliation regulation is not to redress an employee’s 11(c) rights,

but rather to advance OSHA’s responsibility to collect accurate injury and illness statistics[.]”

(Coleman Order at 10.)

With this in mind, the Coleman Order analyzes arguments relating to whether the alleged

standard was invalid as ultra vires, and whether it lacked a rational basis and/or whether it was

arbitrary and capricious, under the framework established by Chevron U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984). (Coleman Order at 2, 14, 24.) According to the Coleman

Order, “nothing in section 11(c) [of the OSH Act] speaks to whether OSHA may exercise its

authority to promulgate regulations that promote accurate recordkeeping where anti-retaliation and

recordkeeping goals overlap.” (Coleman Order at 19.) It further explains that “[i]nterpreting the

Act to permit the Secretary to promulgate a regulation that advances the accuracy of injury and

illness data is consistent ‘with the design and structure of the statute as a whole.’ ” (Coleman

Order at 19 citing Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014).)

The Coleman Order also concludes that the rulemaking record “far surpasses” the

minimum requirements articulated in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125

(2016) for assessing whether certain rulemaking is arbitrary and capricious under the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (APA). (Coleman Order at 17, 21.)

Similarly, it found that the “preamble to the final rule more than amply establishes that the anti-

retaliation regulation is ‘reasonably related’ to the requirements of the Act that employers provide

and that OSHA collect accurate injury and illness data,” and therefore the regulation did not violate

the “non-delegation” doctrine as addressed in Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 214

(1989). (Coleman Order at 21-22.) The Coleman Order goes on to clarify that “[e]nforcement of

the anti-retaliation regulation is not rendered arbitrary and capricious simply because there could

be a parallel section 11(c) and section 9(a) proceedings involving the same alleged retaliatory act.”

(Coleman Order at 22.) Conflicts arising under the parallel proceedings, such as double recovery,

could be prevented by equitable principles, and issue or claim preclusion could be permitted to

solve such conflicts. (Coleman Order at 22.)

Finally, in sum, the Coleman Order concludes that:

Enforcement of section 1904.35(b)(1)(iv) pursuant to section 9(a) of the Act is well

within the bounds of permissible construction of the Act and is neither arbitrary nor

capricious. This permissible interpretation of the Act is due ‘controlling weight’

under Chevron, inasmuch as the anti-retaliation regulation was promulgated

pursuant to Congress’s express delegations of authority to the Secretary (a) to

promulgate regulations ‘as necessary or appropriate for the enforcement of this

[Act] or for developing information regarding the causes and prevention of

occupational accidents’ in section 8(c)(1), (b) to ‘prescribe regulations requiring

employers to maintain accurate records of … work-related deaths, injuries and

illnesses,’ in section 8(c)(2), and (c) to prescribe regulations deemed necessary to

carry out [his] responsibilities under this [Act]’ in section 8(g)(2).

(Coleman Order at 23 citing Chevron, 467 U.S. at 843-844.)

Judge Coleman’s analysis persuasively addresses Respondent’s arguments raised in this

matter. The undersigned agrees with the Secretary regarding the Coleman Order and embraces the

legal conclusions as applied to the issues in this case. For these reasons, the undersigned finds that

the cited standard is a valid exercise of the Secretary’s rule-making authority and rejects

Respondent’s arguments that it is invalid as ultra vires or arbitrary and capricious under the APA.

Accordingly, the undersigned concludes that the Citation issued in this case pursuant to 29

C.F.R. § 1904.35(b)(1)(iv) is valid.

II. The Secretary Failed to Establish a Violation of the Cited Standard

The undersigned finds that the Secretary failed to establish a violation of the cited standard

in this case. The Secretary has not proven that Respondent discriminated against PW1 or PW2

because they reported their work injuries.

A. Applicable Law

According to the Secretary, “to establish a violation of § 1904.35(b)(1)(iv), the Secretary

must show by a preponderance of the evidence that: 1) the employee reported a work-related injury

or illness; 2) the employer took adverse action against the employee; and 3) the employer took the

adverse action because the employee reported a work-related injury or illness.” (Sec’y Br. at 34

citing JX-16 OSHA Interim Enforcement Procedures for New Recordkeeping, Section III –

Special Interim Enforcement, Inspection, Referral, and Citation Procedures for Violations of

1904.35(b)(1)(iv), Sub-section A – Elements of the violation, p. 3.) The Secretary further states

that “[t]hese elements of proof are entirely consistent with well-established law of retaliation and

discrimination.” (Sec’y Br. at 35 citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Tex.as Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981); Postal Serv. Bd. of Gov.

v. Aikens, 460 U.S. 711, 715 (1983); Acosta v. Lloyd Indus., Inc., 291 F.Supp. 3d 647 (E.D. Pa.

2017).)

The Third Circuit, in which this case arose, applies the burden-shifting scheme of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) if a statute does not provide for a burden-

shifting framework to determine discrimination. Doyle v. U. S. Sec'y of Labor, 285 F.3d 243, 250

(3d Cir. 2002); see also 29 U.S.C. § 660(a) (“Any person adversely affected or aggrieved by an

order of the Commission . . . may obtain . . . review . . . in any United States court of appeals for

the circuit in which the violation is alleged to have occurred or where the employer has its principal

office, or in the Court of Appeals for the District of Columbia Circuit . . . .”); Kerns Bros. Tree

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the

circuit where it is probable a case will be appealed).

District courts analyzing section 11(c) claims under the OSH Act also apply the McDonnell

Douglas framework. See, e.g., Perez v. E. Awning Sys., Inc., No. 3:15-CV-01692 (MPS), 2018

WL 4926447 (D. Conn. Oct. 10, 2018); Acosta v. Dura-Fibre LLC, No. 17-C-589, 2018 WL

2433589 (E.D. Wis. May 30, 2018); Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d 647 ; Perez v.

Champagne Demolition, LLC, No. 112CV1278FJSTWD, 2016 WL 3629095 (N.D.N.Y. June 29,

2016); Perez v. Pac. Ship Repair & Fabrication, Inc., No. C14-1773-JCC, 2015 WL 7292594

(W.D. Wash. Nov. 16, 2015); Chao v. Blue Bird Corp., No. 5:06-CV-341 (CAR), 2019 WL

485471, (M.D. Ga. Feb. 26, 2009), aff'd sub nom. Solis v. Blue Bird Corp., 404 F. App'x 412 (11th

Cir. 2010) (unpublished).

When the Commission is asked to apply a legal test developed outside of the OSH Act, the

Commission looks to whether the OSH Act’s goals of ensuring workplace health and safety are

preserved by applying that test. See, e.g., Sharon & Walter Constr., Inc., 23 BNA OSHC 1286,

1294-95 (No. 00-1402, 2010) (considering “substantial continuity test” developed under the

National Labor Relations Act for purposes of repeat characterization under the OSH Act). As

discussed in the previous section, the standard at issue in this case was properly promulgated

pursuant to section 8(c)(1) of the OSH Act which provides that “[e]ach employer shall make, keep

and preserve … such records regarding his activities relating to this Act as the Secretary … may

prescribe by regulation as necessary or appropriate for the enforcement of this Act [.]” 29 U..S.C.

§ 657(c)(1). The OSH Act further directs the Secretary to “prescribe such rules and regulations as

he may deem necessary to carry out [his] responsibilities under this Act.” 29 U.S.C. § 657(g)(2).

The OSH Act is silent as to the burden-shifting framework to be applied to a discrimination

analysis of a regulation properly promulgated under the OSH Act. Moreover, the McDonnell

Douglas burden-shifting scheme is the well-established framework for discrimination case law,

both parties agree to apply this test, and the undersigned finds that it is the appropriate framework

to apply in this case.

In his brief, the Secretary advances a retaliation theory of discrimination in this case.

(Sec’y Br. at 34-46.) The McDonnell Douglas framework for a retaliation discrimination analysis

is a three-step burden-shifting test that is summarized as follows:

[i]n the absence of direct evidence, the plaintiff must first make a prima facie case

of retaliation by showing (1) participation in a protected activity, (2) a subsequent

adverse action by the employer, and (3) evidence of a causal connection between

the protected activity and the adverse action. The burden then shifts to the

defendant, who must articulate an appropriate non-discriminatory reason for its

action. Finally, if the defendant satisfies its burden, the plaintiff must then

demonstrate that the proffered reason is pretextual.

Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 653(citations omitted); see also Reich v. Hoy Shoe

Co., 32 F.3d 361, 365 (8th Cir. 1994) (adopting three-pronged framework for analyzing retaliation

case under § 11(c) of the OSH Act).

B. Analysis

The Secretary’s approach to presenting his prima facie case with this three-step burden

shifting test to the matter at hand is consistent with this test. (Sec’y Br. at 34 citing Ex. JX-16.)

As such, the undersigned examines the facts here to see if the Secretary established whether: “1)

the employee reported a work-related injury or illness; 2) the employer took adverse action against

Respondent also discusses the facts of this case through a disparate treatment theory of

discrimination. (Resp’t Br. at 47-49.) As the Secretary does not advance a disparate treatment

theory, the undersigned deems the Secretary abandoned that theory in this case. L&L Painting

Co., 23 BNA OSHC 1986, 1989 n. 5 (No. 05-0055, 2012) (holding that items not addressed in briefs

before the Commission are deemed abandoned).

the employee; and 3) the employer took the adverse action because the employee reported a work-

related injury or illness.” (Sec’y Br. at 34).

1. Protected Activity

The facts here readily establish the Secretary’s prima facie case. Even Respondent agrees

that the Secretary has presented a prima facie case of retaliation. (Resp’t Br. at 50.) Both PW1

and PW2 engaged in protected activity when they each reported their work-related injury to Wolfe.

Perez v. U.S. Postal Serv., 76 F. Supp. 3d 1168, 1184 (W.D. Wash. 2015) (“The scope of rights

protected implicitly and explicitly under the Act is broad.”); (Sec’y Br. at 36 citing 29 C.F.R.

§§ 1904.35(b)(1)(iv)(“You must not discharge or in any manner discriminate against any

employee for reporting a work-related injury or illness.”); 29 C.F.R. § 1904.36 (“In addition to

§ 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an

employee for reporting a work-related fatality, injury, or illness[.]”); Resp’t Br. at 50 (“Both

employees engaged in protected activity and both were subject to an adverse action.”).

2. Adverse Action

Both PW1 and PW2 suffered an adverse action when they were issued a 7-day no time off

suspension. In a retaliation claim, an “adverse action” can include an action that could “dissuade

a reasonable employee from exercising their protected conduct.” Burlington N. and Santa Fe Ry.

Co. v. White, 548 U.S. 53 (2006). The Secretary has incorporated Burlington into his analysis by

defining an adverse action as whether the “action would deter a reasonable employee from

accurately reporting a work-related injury or illness.” (Ex. JX-16 at 3.) The 7-day no time off

suspension was recordable, and could serve as a pre-requisite for subsequent discipline, as part of

Respondent’s progressive disciplinary policy. A recordable disciplinary action that could serve as

a basis for the next level of discipline could chill a reasonable employee from reporting a

workplace injury. Even if, as in this case, the discipline was subsequently expunged, “[a]n

employer cannot nullify a retaliation claim simply by offering to undo its adverse action once the

possibility of a government enforcement action looms on the horizon. Further, a subsequent offer

of reinstatement does not eliminate the chill of the retaliatory act.” Perez v. E. Awning Sys., Inc.,

2018 WL 4926447, at *7.

3. Causality

With regard to the third prong, causality, Respondent disciplined both PW1 and PW2

shortly after they reported their injuries – within two weeks for PW1 and one day for PW2. Courts

have looked to open hostility or temporal proximity, to find a causal link between the protected

activity and the adverse action. See, e.g., Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 654

(focusing on timing and “ongoing antagonism” as two main factors in finding the causal link

necessary for retaliation); Perez v. E. Awning Sys., Inc., 2018 WL 4926447, at *8 (“A plaintiff may

establish causation either directly through a showing of retaliatory animus, or indirectly through a

showing that the protected activity was followed closely by the adverse action”) (citation omitted).

Direct evidence is that which ‘if believed, proves the fact of discriminatory animus

without inference or presumption.’ Direct evidence includes statements

demonstrating hostility toward a protected status. Circumstantial evidence may

also be used to show causation, provided that the evidence ‘give[s] rise to an

inference of unlawful discrimination.’ Temporal proximity between protected

activity and subsequent adverse actions can constitute sufficient circumstantial

evidence.

Perez v. U.S. Postal Serv., 76 F. Supp. 3d at 1188 (citations omitted).

There is no direct evidence, such as a statement from Wolfe, establishing hostility toward

PW1 or PW2 solely due to their reporting an injury and not due to a safety infraction.

Circumstantially, however, due to the close temporal proximity of the suspensions to when PW1

and PW2 reported their injuries to Wolfe, the undersigned finds, and the parties do not dispute,

that the Secretary established the causality connection between protected activity and retaliatory

action. (Sec’y Br. at 41-42; Resp’t Br. at 50.) The Secretary has therefore established a prima

facie case of retaliation.

4. Burden Shift: Legitimate, Nondiscriminatory Reason

At this point, the burden shifts to Respondent to proffer a legitimate, nondiscriminatory

reason for issuing the 7-day no time off suspensions to PW1 and PW2 in this case. Acosta v. Dura-

Fibre LLC, 2018 WL 2433589, at *6. This burden is “one of production, not persuasion.” Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Respondent states that the

suspension letters themselves, as well as the testimony supporting Respondent’s actions in this

case, articulate its legitimate, non-discriminatory business reasons for issuing the suspensions to

PW1 and PW2. (Resp’t Br. at 50.)

The suspension letter to PW1 states that Respondent issued the 7-day no time off

suspension because “it was determined that [he] did not practice safety or proper lifting techniques

while handling the load.” (Ex. JX-6 at 1.) The letter cites to multiple provisions of the

Respondent’s “Employee & Labor Relations Manual,” and the “City Delivery Carriers Duties &

Responsibility Methods Handbook.” (Id.)

The suspension letter to PW2 states the Respondent issued the 7-day no time off suspension

because she “should have avoided getting close enough to the fence that the dog could bite [her].”

(Ex. JX-13 at 1.) This letter cites to Respondent’s Postal Rules & Regulations, “including but not

limited to[,] Section 133.1 of Handbook M-41[:] Always exercise care to avoid personal injury

and report all hazardous conditions to the unit manager.” (Id.)

The undersigned finds that Respondent has produced sufficient evidence for this trier of

fact to conclude that Respondent disciplined PW1 and PW2 because they violated Respondent’s

worker safety rules. Reeves, 530 U.S. at 142. The suspension letters articulate legitimate, non-

discriminatory business reasons for the issued disciplinary measures for PW1 and PW2.

5. Burden Shift: Pretext

The burden now shifts back to the Secretary to demonstrate that this proffered reason is

pretextual. Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 653; Acosta v. Dura-Fibre LLC, 2018

WL 2433589, at *6 (holding if employer articulates “legitimate, nondiscriminatory reason,” the

burden shifts back to the plaintiff to submit evidence that the employer’s explanation is

pretextual”) citing David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir.

2017).

A plaintiff may demonstrate pretext by showing that the defendant’s proffered

reasons for taking adverse employment actions “(1) had no basis in fact; (2) did not

actually motivate [the adverse employment actions]; or (3) [were] insufficient to

motivate [the adverse employment actions]” and were therefore pretextual.

Acosta v. Dura-Fibre LLC, 2018 WL 2433589, at *7 (citation omitted); Chao v. Blue Bird Corp.,

2009 WL 485471, at *5 (citations omitted) (to support a finding of pretext, courts have looked to

evidence such as changes in the employer's proffered reason for its employment decision or

whether the employer’s investigation of the incident was thorough or complete).

Here, the Secretary’s case falters. The discipline in this matter was subject to management

discretion and approved by a reviewing official. The suspension itself was in accordance with

Respondent’s progressive disciplinary policy, as testified to by Chludzinski, whose testimony the

Secretary does not attack. The discipline was necessarily issued close in time to the reporting of

the injury as it related to the action of the employee that caused the injury.

The Secretary claims that “the issued disciplines are completely unsupported by the facts,

and Respondent’s proffered explanations are pretextual and unworthy of credence.” (Sec’y Br. at

43.) Yet the evidence that the Secretary relies on does not support his claim. For example, the

Secretary argues that “there is no evidence to support that [PW1] lifted improperly, and no

witnesses to either his lifting or his alleged reenactment for Wolfe.” (Id..) At the same time, the

Secretary questions Wolfe’s testimony that PW1 demonstrated improper lifting to him, arguing

“that there is no evidence to support Wolfe’s claim.” (Id. at 32.) Chludzinski, however,

corroborated Wolfe’s testimony. (Tr. at 420.) The Secretary also questions PW2’s discipline letter

that states that “having her dog spray ‘would not have helped in this instance.’ ” (Sec’y Br. at 44.)

The Secretary, however, does not address how that section of the letter began, “you should have

avoided getting close enough to the fence that the dog could bite you.” (Ex. JX-13 at 1.)

The Secretary then questions the details and procedural irregularities within Respondent’s

disciplinary process. For instance, the Secretary criticizes that Mayfield’s and Bugay’s PDI notes

did not mention specific facts that would support unsafe acts or rule violations. (Sec’y Br. at 43-

44.) Yet, the Secretary does not question the validity of Chludzinski’s testimony. Chludzinski

testified that he concurred with the requested discipline based on a conversation with Wolfe.

Chludzinski also was not surprised about irregularities in the documentation. (Tr. at 446-447.)

Chludzinski testified that he “writes hundreds of these a year,” and therefore does not recall all

specifics relating to PW1’s discipline, and for similar reasons does not recall all the documentation

he reviewed for PW2’s discipline. (Tr. at 408, 432-434.)

The only aspect that raised Chludzinski’s eyebrows was the drug test order on PW1. (Tr.

at 421.) Wolfe testified that he did not remember ordering the drug test, even though the e-mails

in the record establish that he did (the parties stipulated to it). (Tr. at 223-224, 245-246; Stip. at

¶ 18.) Respondent argues that the Secretary failed to prove that this particular drug test order is

connected to PW1’s reporting of his injury. (Resp’t Br. at 52.) The Secretary claims that the drug

test order is proof of animus because it was a deviation from Respondent’s own personnel policies.

It is not disputed that the drug test order deviated from Respondent’s personnel policies,

but this fact alone is not enough to establish pretext. The case the Secretary cites for support for

his proposition, Perez v. U.S. Postal Serv., 76 F. Supp. 3d 1168, is distinguishable from this case.

In that case, the evidence regarding deviation from personnel policies was overt and rampant,

including the fact that the employer did not consult with “Labor Relations” in that matter. Perez

v. U.S. Postal Serv., 76 F. Supp. 3d at 1190. Here, as Chludzinski testified, all Labor procedures

were followed, and the Secretary has not established that any irregularities in paperwork are a

result of inherent retaliatory intent; rather, the record establishes that irregularities in paperwork

are a result of general mishandling of paperwork.

The Secretary also relies on the fact that Kammermeir eventually threw out the discipline,

writing “evidence does not support issued discipline.” (Sec’y Br. at 45.) Yet, while

Kammermeir’s testimony reveals that he had a barren record from which to adjudicate the

grievance, he also testified that “[i]t’s typical for information not to be passed along through the

process. Either it’s lost or just not placed in there.” (Tr. at 332.)

The Secretary also alleges that Respondent’s pay-for-performance compensation and

incentive plan “created an incentive for managers to reduce the number of carrier hours and

reported injuries.” (Sec’y Br. at 45.) The Secretary further claims that Respondent’s “upper level

management understood the potential for this kind of performance plan to incentivize managers to

discourage injury-reporting,” and that Wolfe “was aware that his performance was evaluated solely

on his NPA scorecard.” (Id. at 45-46.) The Secretary then boldly declares, “[w]hile some

supervisors and managers may balance these conflicts appropriately, others, such as Wolfe in this

case, may be unduly influenced by their desire for performance achievement, from a career

advancement point of view, as well as a financial point of view.” (Id.. at 46.)

Respondent asserts that the Secretary has provided “nothing more than unfounded

suspicion to support its Citation. There is simply no evidence of discriminatory or retaliatory

animus in the record.” (Resp’t Br. at 51.) The undersigned agrees. The Secretary has failed to

carry his burden at this stage in the retaliation analysis. As the preamble to the final rule noted:

It is important to note that the final rule prohibits employers only from taking

adverse action against an employee because the employee reported an injury or

illness. Nothing in the final rule prohibits employers from disciplining employees

for violating legitimate safety rules, even if the same employee who violated a

safety rule also was injured as a result of that violation and reported that injury or

illness (provided that employees who violate the same work rule are treated

similarly without regard to whether they also reported a work-related illness or

injury). What the final rule prohibits is retaliatory adverse action taken against an

employee simply because he or she reported a work-related injury or illness.

Improve Tracking of Workplace Injuries and Illnesses, Final Rule, 81 Fed. Reg. 29623, 29672

(May 12, 2016) (to be codified at 29 C.F.R. Part 1904); see also 29 C.F.R. § 1977.6. (“An

employee’s engagement in activities protected by the Act does not automatically render [him/her]

immune from discharge or discipline for legitimate reasons, or from adverse action dictated by

non-prohibited considerations.”).

The Secretary must put forth more than conjecture regarding Respondent’s compensation

incentive program – especially if the Secretary assures the undersigned that the program does not

itself violate the cited standard. (Sec’y Br. at 22 n.7.) Nothing in the record supports the

Secretary’s claim that Wolfe treated these employees differently, or discriminated against these

employees, who reported their injuries because they reported their injuries. Indeed, Respondent’s

organizational structure is set up so that employees can report their injuries, receive medical

treatment, and file grievances to support them. This structure is frequently used as Chludzinski

testified that he works on “hundreds” of these issues yearly. (Tr. at 408.) PW2 testified that she

did not feel discouraged to report another injury even after being disciplined. (Tr. at 81.)

Finally, given that the suspensions in this matter were rescinded and expunged from the

employees’ records in this case, before the Citation was issued, the undersigned questions how the

Secretary would propose that Respondent abate this Citation Item. The Secretary is aware of the

need to specify abatement for citations issued pursuant to this new standard as evidenced in the

Secretary’s interim enforcement procedures, which were in effect at the time of issuance:

Abatement: The citation must include remedies for the aggrieved employee, such

as back wages, removal of disciplinary action, reinstatement of lost time and wages,

etc., where appropriate… Also, the citation must include the means for abatement

of the underlying policy or procedure that is related to the merit determination.

Ex. JX-16 at 5.

No abatement, however, is specified in the Citation. There is no remedy for the employees

at issue here, as they had already been made whole well before the Citation was issued in this case.

The Secretary claims Respondent’s pay-for-performance compensation and incentive plan is not

violative of the cited standard, but the Secretary spent a considerable amount of time researching

it and presenting the research in his brief. To the extent that the Secretary is attempting to touch

Respondent’s incentive programs, as Respondent suggests, the undersigned finds that the Secretary

has failed to present enough evidence tying Wolfe’s actions to the pay-for-performance

compensation program in this case.

The Secretary failed to establish that Respondent violated the cited standard.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1) Citation 1, Item 1, alleging an other-than-Serious violation of 29

C.F.R. § 1904.35(b)(1)(iv), is VACATED.

SO ORDERED.

/s/ Keith E. Bell

Keith E. Bell

Judge, OSHRC

DATE: May 18, 2020

Washington, D.C.

ATTACHMENT A

U.S. Postal Serv., “Order Granting Secretary’s Motion For Partial Summary Judgment On

Affirmative Defenses Numbered 8 & 9 In The Respondent’s Answer” (No. 18-0462) (Dec. 27,

2018) (ALJ Coleman).

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. 18-0462

U. S. POSTAL SERVICE,

Respondent.

ORDER GRANTING

JUDGMENT ON AFFIRMATIVE DEFENSES NUMBERED 8 & 9 IN THE

On February 26, 2018, the Secretary issued a one-item other-than-serious citation

(Citation) to the Respondent, the United States Postal Service (USPS). The sole item

alleged that on or about August 29, 2017,

Pennsylvania, -day working suspension to a carrier because he reported a

work-related injury on August 16, 2017. The citation item alleged that this action violated 29

C.F.R. § 1904.35(b)(1)(iv), which provides that an employer must not discharge or in any manner

discriminate against any employee for reporting a work- The Citation

proposed a penalty of $5543 and required abatement by March 9, 2018.

USPS timely contested the Citation and thereby invoked the jurisdiction of the

Occupational Safety and Health Review Commission (Commission) pursuant to section 10 of the

Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 659. The Secretary thereafter

duly filed a complaint pursuant to Commission Rule 34(a), 29 C.F.R. § 2200.34(a), wherein the

Secretary re-asserted the alleged violation, proposed penalty, and abatement.

USPS duly filed an answer pursuant to Commission Rule 34(b), in which it denied the

allegations of the Citation and interposed a number of affirmative defenses, including the

following two defenses:

are arbitrary and capricious.

The Secretary filed a motion for partial summary judgment dated September 14, 2018,

seeking judgment as a matter of law on those two affirmative defenses. (If the motion were

granted, the remedy on the motion would be to strike the affirmative defenses.) The Respondent

filed a memorandum in opposition to the motion, and the Secretary filed a reply memorandum on

October 24, 2018.

The first issue for decision, which will be , may be

stated as follows:

Did Congress intend the procedure prescribed by section 11(c) of

the Act to be the exclusive means to redress retaliatory acts that both

(a) violate an employee s 11(c) rights, and (b) undermine

duty to collect accurate injury and illness data?

If the section 11(c) procedure is exclusive, that would be the end of the matter attempted

enforcement of section 1910.35(b)(1)(iv) by issuing a citation and abatement order under section

9(a) of the Act (along with a proposed penalty under section 10(a) of the Act) would contravene

the Act and be ultra vires. In that event, the Citation would be ordered vacated.

But, if the enforcement mechanism prescribed in section 11(c) is not exclusive, then the

following issue, must be

resolved:

Did the Secretary act arbitrarily and capriciously in promulgating

a regulation that proscribes certain conduct (i.e., employer

retaliation against an employee for having reported a work-

related injury or illness) that is already proscribed by section

11(c) of the Act?

As described below, the answers to both questions are negative, so

is GRANTED, and the two affirmative defenses described above shall be ordered stricken from

the answer.

Statutory and Regulatory Background

Authority to Promulgate

Recordkeeping Regulations

which is assure so

far as possible every working man and woman in the Nation safe and healthful working conditions

procedures with respect to occupational safety and health which procedures will help achieve the

objectives of this [Act] and accurately describe the nature of the occupational safety and health

Section 24(a) of the Act thus directs the Secretary to

[C]ompile accurate statistics on work injuries and illnesses which shall include all

disabling, serious, or significant injuries and illnesses, whether or not involving loss

of time from work, other than minor injuries requiring only first aid treatment and

which do not involve medical treatment, loss of consciousness, restriction of work

or motion, or transfer to another job.

29 U.S.C. § 673(a) (emphasis added).

Toward that end, section 8(c)(2) of the Act directs prescribe regulations

requiring employers to other than minor

injuries requiring only first aid treatment and which do not involve medical treatment, loss of

657(c)(2).

(emphasis added). And in section 8(g)(2), Congress delegated even broader lawmaking power to

regulations as he may deem

necessary to carry out [his] responsibilities under this

added). Section 8(c)(1) of the Act requires employers

recordkeeping regulations it provides

such records regarding his activities relating to this Act as the Secretary may prescribe by

regulation as necessary or appropriate for the enforcement of this Act or for developing

information regarding the causes and prevention of occupational accidents and illnesses.

U.S.C. §657(c)(1) (emphasis added).

violations. 29 U.S.C. § 658(a).

Section 11(c) of the Act and the

Interpretive Regulation at 29 C.F.R. Part 1977

Section 11(c) of the Act prohibits certain retaliatory acts against employees and includes

an enforcement mechanism for remedying such unlawful acts. 29 U.S.C. § 660(c). The 11(c)

enforcement mechanism is triggered by an employee filing a complaint with the Secretary alleging

retaliation for having exercised . Section 660(c)(1). Section 11(c)

provides in its entirety as follows:

(1) No person shall discharge or in any manner discriminate against

any employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or related to

this Act or has testified or is about to testify in any such proceeding or

because of the exercise by such employee on behalf of himself or

others of any right afforded by this [Act].

(2) Any employee who believes that he has been discharged or

otherwise discriminated against by any person in violation of this

subsection may, within thirty days after such violation occurs, file a

complaint with the Secretary alleging such discrimination. Upon

receipt of such complaint, the Secretary shall cause such investigation

to be made as he deems appropriate. If upon such investigation, the

Secretary determines that the provisions of this subsection have been

violated, he shall bring an action in any appropriate United States

district court against such person. In any such action the United States

district courts shall have jurisdiction, for cause shown to restrain

violations of paragraph (1) of this subsection and order all appropriate

relief including rehiring or reinstatement of the employee to his

former position with back pay.

(3) Within 90 days of the receipt of a complaint filed under this

subsection the Secretary shall notify the complainant of his

determination under paragraph 2 of this subsection.

A few years after the enactment of the Act, the Secretary promulgated a regulation (now

codified at 29 C.F.R. pt. 1977), the stated purpose of which is

interpretations of the various provisions of section 11(c) of the Act which will guide the Secretary

of part 1977 address the matter of whether the Secretary regards section 11(c) to provide an

exclusive mechanism for redressing unlawful retaliation against an employee for a permissible

reason other than to redress

Promulgation of the Cited Regulation, § 1904.35(b)(1)(iv)

Subparagraph (b)(1) of section 1904.35 (of which the cited subparagraph (iv) is a part) was

recently promulgated with a declared effective date of August 10, 2016. Final Rule, Improve

Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016) (to be codified

at 29 C.F.R. pts. 1904 and 1902). The preamble to the final rule explains that section 1904.35(b)(1)

section 6 of the Act. Id. at 29656 & 29687; see also Thermal

Although the regulation was effective on August 10, 2016, the Secretary delayed its

enforcement until December 1, 2016. See

available at www.osha.gov/dep/memos/recordkeeping_memo_11102016.html

Reduction Corp., 12 BNA OSHC 1264, 1266 (No. 81

recordkeeping regulation was promulgated pursuant to

The promulgation of subparagraph (b)(1) was part of a wider ranging amendment to

regulation for Recording and Reporting Occupational Injuries and Illnesses, which is

codified at 29 C.F.R. Part 1904. Although the validity of only subparagraph (b)(1)(iv) is at issue

here, the entirety of subparagraph (b)(1) provides important context. It provides as follows:

§ 1904.35 Employee involvement.

(a)

(b) Implementation (1) What must I do to make sure that

employees report work-related injuries and illnesses to me? (i) You

must establish a reasonable procedure for employees to report work-

related injuries and illnesses promptly and accurately. A procedure is

not reasonable if it would deter or discourage a reasonable employee

from accurately reporting a workplace injury or illness;

(ii) You must inform each employee of your procedure for reporting

work-related injuries and illnesses;

(iii) You must inform each employee that:

(A) Employees have the right to report work-related injuries and

illnesses; and

(B) Employers are prohibited from discharging or in any manner

discriminating against employees for reporting work-related injuries

or illnesses; and

(iv) You must not discharge or in any manner discriminate against

any employee for reporting a work-related injury or illness.

The rulemaking process that resulted in the eventual promulgation of subparagraph

(b)(1)(iv) formally commenced on November 8, 2013, when OSHA caused to be published a

Before the 2016 amendment, section 1904.35(b)(1) had provided as follows:

(b) Implementation. (1) What must I do to make sure that employees

report work-related injuries and illnesses to me?

(i) You must set up a way for employees to report work-related

injuries and illnesses promptly; and

(ii) You must tell each employee how to report work-related injuries

and illnesses to you.

Notice of Proposed Rulemaking (NPRM) to amend its recordkeeping regulations to add

requirements for the electronic submission of injury and illness information employers are already

required to keep under OSHA's regulations for recording and reporting occupational injuries and

illnesses. Proposed Rule, Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg.

67254 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pts. 1904 & 1952). The NPRM cited

the provisions of sections 8 and 24 of the Act, described above, as providing the legal authority

for the proposal. Id. at 67255; 29 U.S.C. §§ 657 & 673.

OSHA conducted a public meeting on the NPRM on January 9-10, 2014. The preamble

to the final rule describes certain comments made during that public meeting:

A concern raised by many meeting participants was that the

proposed electronic submission requirement might create a

motivation for employers to under-report injuries and illnesses.

Some participants also commented that some employers already

discourage employees from reporting injuries or illnesses by

disciplining or taking other adverse action against employees who

file injury and illness reports.

81 Fed. Reg. at 29625; accord Supplemental NPRM, Improve Tracking of Workplace Injuries and

Illnesses, 79 Fed. Reg. 47605 (Aug. 14, 2014).

These comments caused OSH adding provisions that will make it a violation

for an employer to discourage employee protect[ing]

the integrity 5.

Consequently, OSHA issued a Supplemental NPRM on August 14, 2014 that solicited public

comment on adding three requirements intended to promote the accurate reporting of work-related

The administrative record on the rulemaking, which includes the transcripts of the

public meeting, is available at the following URL:

https://www.regulations.gov/docket?D=OSHA-2013-0023

prohibit employers from taking adverse

action against employees for reporting injuries and illnesses. Id.

The stated legal authority for these proposed additions to the

recordkeeping regulation remained sections 8 and 24 of the Act, as had been cited in connection

with the original NPRM. 79 Fed. Reg. at 47606. The Supplemental NPRM expresses the view

that including the proposed anti-retaliation provision in the recordkeeping regulation would

comfortably within these various g employers may not discipline

or take adverse action against workers for reporting injuries and illnesses, workers will feel less

hesitant to report their injuries and illnesses, and their employers' records and reports will be more

accurate , as required by sections 8 and 24 of the Act. Id. The Supplemental NPRM noted that

there had been evidence that

unlawful retaliation had the effect of suppressing employee reporting of work-related injuries and

illnesses:

Further, given testimony that some employers already engage in

such practices, and the possibility that the proposed rule could

provide additional motivation for employers to do so, prohibiting

employers from taking adverse actions against their employees for

reporting injuries and illnesses in this rulemaking is "necessary to

carry out" the recordkeeping requirements of the Act. (See 29

U.S.C. 657(g)(2).).

79 Fed. Reg. at 47606-607 (emphasis added).

The other two proposed requirements on which the Supplemental NPRM solicited public

comment

and illnesses; [and] (2) require that any injury and illness reporting requirements established by

Id. at 47606.

OSHA had identified the suppressive impact of retaliation on the reporting of work-

related injuries and illnesses well before the 2016 promulgation of the cited regulation. Another

provision of the recordkeeping regulation that was originally promulgated in 2002, section

1904.36,

The Supplemental NPRM recognized that section 11(c) provides a remedy for employees

who have been subjected to retaliation for having reported a work-related injury or illness, but the

Secretary did not regard the pre-existing statutory procedure to preclude promulgation of a

employee for having reported a work-related injury or illness. As originally promulgated in 2002,

section 1904.36 provided as follows:

§ 1904.36 Prohibition against discrimination.

Section 11(c) of the Act prohibits you from discriminating against

an employee for reporting a work-related fatality, injury or illness.

That provision of the Act also protects the employee who files a

safety and health complaint, asks for access to the Part 1904 records,

or otherwise exercises any rights afforded by the OSH Act.

(The 2016 final rule amended section 1904.36 by changing its fi

addition to § 1904.35, section 11(c) of the Act also prohibits you from discriminating against an

employee for reporting a work-related fatality, injury or illness. The final rule left the second

sentence of section 1904.36 unchanged. 81 Fed. Reg. at 29671.)

The preamble that was published in connection with the promulgation of original section

1904.36

Section 1904.36 of the final rule makes clear that § 11(c) of the Act

prohibits employers from discriminating against employees for

reporting work-related injuries and illnesses. Section 1904.36 does

not create a new obligation on employers. Instead, it clarifies that

the OSH Act's anti-discrimination protection applies to employees

who seek to participate in the recordkeeping process.

* * * *

OSHA has also included in the final rule, in section 1904.36, a

statement that section 11(c) of the OSH Act protects workers from

employer retaliation for filing a complaint, reporting an injury or

illness, seeking access to records to which they are entitled, or

otherwise exercising their rights under the rule. This section of the

rule does not impose any new obligations on employers or create

new rights for employees that did not previously exist. In view of

the evidence that retaliation against employees for reporting injuries

is not uncommon and may be "growing" [citation to rulemaking

record omitted], this section is intended to serve the informational

needs of employees who might not otherwise be aware of their rights

and to remind employers of their obligation not to discriminate.

Occupational Injury and Illness Recording and Reporting Requirements, 66 Fed. Reg. 5916, 6050

& 6053 (Jan. 19, 2001) (to be codified at parts 1904 and 1952).

regulation (which is perforce enforceable by the issuance of a citation under section 9(a)) that

proscribes that same retaliatory conduct. The Supplemental NPRM indicates the principal

motivation for the proposed anti-retaliation regulation is not to redress

but rather to advance responsibility to collect accurate injury and illness statistics:

Section 11(c) of the Act prohibits any person from discharging

or discriminating against any employee because that employee has

exercised any right under the Act. (29 U.S.C. 660(c)(1).) Under

this provision, an employee who believes he or she has been

discriminated against may file a complaint with OSHA, and if, after

investigation, the Secretary determines that Section 11(c) has been

violated, then the Secretary can file suit against the employer in U.S.

District Court seeking "all appropriate relief" including

reinstatement and back pay. (29 U.S.C. 660(c)(2).) Taking adverse

action against an employee who reports a fatality, injury, or illness

is a violation of 11(c), (see 29 CFR 1904.36); therefore, much of the

primary conduct that would be prohibited by the new provision is

likely already proscribed by 11(c).

The advantage of this provision is that it would provide OSHA

with additional enforcement tools to promote the accuracy and

integrity of the injury and illness records employers are required to

keep under Part 1904. For example, under 11(c), OSHA may not

act against an employer unless an employee files a complaint.

Under the additions to the proposed rule under consideration, OSHA

would be able to cite an employer for taking adverse action against

an employee for reporting an injury or illness, even if the employee

did not file a complaint. Moreover, an abatement order can be a

more efficient tool to correct employer policies and practices than

the injunctions authorized under 11(c).

* * * *

As noted above, these retaliatory actions would likely be

actionable under 11(c), as well as under the provisions that OSHA

is considering as amendments to 1904.35. The remedy, however,

would be different. Under this provision, OSHA could issue

citations to employers under Section 9 of the OSH Act for violating

the provision, and the employer could challenge the citations before

the Occupational Safety and Health Review Commission. The

citations would carry civil penalties in accordance with Section 17

of the OSH Act, as well as a requirement to abate the violation; the

abatement could include reinstatement and back pay

79 Fed. Reg. at 47607 & 47608.

OSHA received 142 comments on the Supplemental NPRM. 81 Fed. Reg. at 29625. On

May 12, 2016, OSHA promulgated the final rule that contained the annual electronic reporting

provisions that had been proposed in the original NPRM (to be included in section 1904.41) as

well as the three additional requirements that had been proposed in the Supplemental NPRM,

including the anti-retaliation provision cited here, section 1904.35(b)(1)(iv). 81 Fed. Reg. 29624.

The preamble to the final rule reiterated the rationale and statutory authority for the anti-

retaliation provision that was originally expressed in the Supplemental NPRM:

The Act's various statutory grants of authority that address

recordkeeping provide authority for OSHA to prohibit employers

from discouraging employee reports of injuries or illnesses. If

employers may not discriminate against workers for reporting

injuries or illnesses, then discrimination will not occur to deter

workers from reporting their injuries and illnesses, and their

employers' records and reports may be more "accurate", as required

by sections 8 and 24 of the Act. Evidence in the administrative

record establishes that some employers engage in practices that

discourage injury and illness reporting, and many commenters

provided support for OSHA's concern that the electronic

submission requirements of this final rule and associated posting of

data could provide additional motivation for employers to

discourage accurate reporting of injuries and illnesses. Therefore,

The Secretary has recently proposed to rescind the recently promulgated requirement set

forth in section 1904.41 for the annual electronic submission by establishments with more than

249 employees of the information that is recorded on OSHA Forms 300 (Log of Work-Related

Injuries and Illnesses) and 301 (Injury and Illness Incident Report). Proposed Rule, Tracking of

Workplace Injuries and Illnesses, 83 Fed. Reg. 36494 (proposed July 30, 2018) (to be codified at

29 C.F.R. pts. 1904 & 1952). However, this proposed rescission would not affect other electronic

reporting requirements promulgated in the 2016 final rule that those same large employers, as well

as certain other smaller employers, electronically submit information that is recorded on OSHA

Form 301A (Summary of Work-Related Injuries and Illnesses). Nothing in the public notice that

announced the proposed partial rescission of the electronic reporting requirements in section

1904.41 suggests any backpedaling from the justifications for promulgating section 1904.35(b)(1)

as stated in the 2016 preamble to the final rule.

prohibiting employers from engaging in practices that discourage

their employees from reporting injuries or illnesses, including

discharging or in any manner discriminating against such

employees, is "necessary to carry out" the recordkeeping

requirements of the Act (see 29 U.S.C. 657(g)(2)).

* * * *

If employers reduce the accuracy of their injury and illness records

by retaliating against employees who report an injury or illness, then

OSHA's authority to collect accurate injury and illness records allows

OSHA to proscribe such conduct even if the conduct would also be

proscribed by section 11(c).

81 Fed. Reg. at 29627.

The preamble acknowledges that the conduct prohibited by § 1904.35(b)(1)(iv) of the

final rule is already proscribed by section 11(c), not change the substantive

obligations of employers. Notwithstanding the absence of any

new substantive obligations, the preamble states the anti- an

important enforcement effect an enhanced enforcement tool for ensuring the

accuracy of employer injury and illness logs t dependent upon an employee first filing

a complaint under section 11(c) of the Act. 81 Fed. Reg. at 29671. The preamble notes that

or may fear additional r

Further, in response to public comments that section 1904.35(b)(1)(iv) would interfere with

section 11(c) by infringing on an employee's right to bring a section 11(c) claim and by

eliminating section 11(c)'s 30-day window for employees to bring complaints

stated:

The final rule does not abrogate or interfere with the rights or

restrictions contained in section 11(c). An employee who wishes to

file a complaint under section 11(c) may do so within the statutory

30-day period regardless of whether OSHA has issued, or will issue,

a citation to the employer for violating the final rule. OSHA

believes that many employees will continue to file 11(c) complaints

because of the broader range of equitable relief and punitive

damages available under that provision.

Because section the Secretary is

empowered pursuant to section 9(a) of the Act to issue a citation for its alleged violation, as was

done here. 29 U. S. C. § 658(a) (authorizing the Secretary to issue a citation to an employer for

violating a requirement

Standard of Review

The Commission has the authority to consider an enforcement challenge to the statutory

validity of standards and regulations that the Secretary has promulgated pursuant to the Act. See

Rockwell Int'l Corp., 9 BNA OSHC 1092 (No. 12470, 1980)

the Commission lacks authority to consider procedural challenge to occupational safety and health

standards promulgated under § 6(b) of the Act), overruled on other grounds, George C.

Christopher & Sons, Inc., 10 BNA OSHC 1436 (No. 76-647, 1982); see also CBI Servs., Inc., 19

BNA OSHC 1591, 1594, n. 7 (No. 95-0489, 2001) Commission precedent does not

substantive and procedural issues in determining whether a validity

challenge [to a standard promulgated pursuant to sec. 6(b) of the Act] is properly before the

Commiss

The Commission considers a challenge to a regulation in the same manner as would a

federal court. Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 154 (1991) that

Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory

powers typically exercised by a court in the agency-review context .

The two defenses at issue here amount to the functional equivalent of a challenge to the

cited regulation under the Administrative Procedure Act (APA). See La. Forestry Ass'n Inc. v.

Sec'y of Labor, 745 F.3d 653, 668-69 (3d Cir. 2014) (considering a claim that the Department of

Labor exceeded its authority in promulgating a certain regulation in a case brought under the

judicial review provisions of the APA). The judicial review provisions of the APA require a court

hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law in excess of

statutory jurisdiction, authority, or limitatio §§ 706(2)(A)

& (C).

Such a challenge to a regulation may be resolved through a motion for summary judgment.

See Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (noting

that where the

not about issues of fact between the question

; Univ. Med. Ctr. of S. Nev.

v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999) (noting that when reviewing agency action, the

district court sits as an appellate tribunal, and the question whether [the agency] acted in an

arbitrary and capricious manner is a legal one which the district court can resolve on the agency

record ; La. Forestry Ass'n Inc., 745 F.3d at 667.

The two-step framework established by Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) (Chevron), applies to resolution of the issue of whether the Secretary

exceeded his statutory authority in promulgating the challenged regulation. See City of Arlington

v. FCC, 569 U.S. 290 (2013) (holding that Chevron framework applies to resolve the contention

that an ultra vires as being outside the bounds of statutory

authority); La. Forestry Ass'n, 745 F.3d at 669-70 (applying Chevron framework in case brought

under the judicial review provisions of the APA in considering a claim that the Department of

Labor exceeded its authority in promulgating a certain regulation).

The Chevron framework similarly applies to a challenge to a regulation promulgated

pursuant to a broad delegation of authority to prescribe regulations that the responsible agency

deems to advance a specified statutory purpose. Chevron 467 U.S. at 843 44 (stating

Congress has explicitly left a gap for the agency to fill, there is an express delegation

of authority to the agency to elucidate a specific provision of the statute by regulation

uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or

manifestly contrary to the statute United States v. Mead Corp., 533 U.S. 218, 226 27 (2001)

Chevron deference

when it appears that Congress delegated authority to the agency generally to make rules carrying

the force of law, and that the agency interpretation claiming deference was promulgated in the

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002)

(applying Chevron framework to review of a rule promulgated by Secretary of Labor pursuant to

delegated authority to

Medical and Leave Act); Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44,

57 (2011) (applying Chevron framework to the review of a rule that was promulgated pursuant to

delegated authority to

Internal Revenue Code).

At the first step of the Chevron framework, a court must apply tools of statutory

construction to n t

f the intent of Congress is clear, that is the end of the matter; for the court, as well as the

Chevron at 842

843; see also City of Arlington

The plainness or ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used, and the broader context of

the statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

A court may consider purpose and its legislative history in ascertaining

whether the statute speaks to the precise question at issue. See Chevron at 862-63 (considering

at step one and finding it as a whole [] silent on the

precise issue before us ; see also Arcadian Corp., 17 BNA OSHC 1345, 1348-49 (No. 93-3270,

1995) (considering legislative history to discern congressional intent, seemingly at Chevron step

one); but cf. United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008) that legislative

history should not be considered at Chevron step one although ambiguous guidance

from the Supreme Court on the issue), Geisinger Cmty. Med. Ctr. v. Sec'y H.H.S., 794 F.3d

383, 391 n. 5 (3d Cir. 2015) (noting that the Supreme Court has often oscillated between

considering and then refusing to consider legislative history at Step One Johnson v.

Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1098 (D.C. Cir. 2017) (holding that employees do

not have a private cause of action under section 11(c) of the Act, and when statutory

text resolves the issue, as it does here, the Supreme Court has said that we need not dig into the

legislative history ) (Kavanaugh, J.).

Only if the statute is silent or ambiguous with respect to the specific issue,

analysis continue to step two, where

Chevron at 843. At Chevron step two, courts

administers, Michigan v. EPA, 576 U.S. , , 135 S. Ct. 2699, 2707 (2015), and

disturb an agency rule unless it is arbitrary or capricious in substance, or manifestly contrary to

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011).

Recently, in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), the Court provided

a fuller summary of the standard for assessing whether certain rulemaking is arbitrary and

capricious under the APA:

One of the basic procedural requirements of administrative

rulemaking is that an agency must give adequate reasons for its

decisions.

articulate a satisfactory explanation for its action including a rational

Motor

Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut.

Automobile Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation

marks omitted). That requirement is satisfied when the agency's

Bowman Transp., Inc. v. Arkansas Best Freight

System, Inc., 419 U.S. 281, 286 (1974). But where the agency has

failed to provide even that minimal level of analysis, its action is

arbitrary and capricious and so cannot carry the force of law. See 5

U.S.C. § 706(2)(A); State Farm, supra, at 42 43.

standard prescribed by section 6(f) of the Act is

applicable. 29 U.S.C. § 655(f). See Nat'l Oilseed Processors Ass'n v. OSHA, 769 F.3d 1173, 1178

(D.C. Cir. 2014) (noting that the of judicial review under section

6(f) of demands more stringent review of OSHA rules than would the APA's arbitrary

and capricious standard Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1466 (D.C.

Cir. 1995) (dismissing for lack of jurisdiction an attempted pre-enforcement challenge to a

recordkeeping regulation promulgated pursuant to section 8 of the Act that was initiated in the

court of appeals pursuant to section 6(f) of the Act, and transferring the matter to the district court

for APA review under 5 U.S.C. § 703).

The issue to be decided at Chevron step one may be framed as

follows: Does the Act speak directly to the question whether, in order to enhance the accuracy of

injury and illness information reported to OSHA, the Secretary is restricted to employing the

section 11(c) procedure to deter and thwart retaliatory action against employees for having

reported a work-related injury or illness?

Analysis of the text of the Act, employing traditional tools of statutory interpretation,

shows that the Act is silent on this precise question at issue.

OSHA's statutory authority for promulgating the anti-retaliation provision of

§ 1904.35(b)(1)(iv) derives from recordkeeping provisions described in detail above. 29

U.S.C. §§ 657(c)(l), 657(c)(2), 657(g)(2), 673(a), 673(e). Nothing in the text of section 11(c)

addresses recordkeeping. Rather, section 11(c) creates employee rights and establishes the

exclusive remedy available to employees who believe they have been retaliated against for having

engaged in certain protected activities (of which the reporting of work-related injuries and illnesses

is but one). Taylor v. Brighton Corp., 616 F.2d 256, 258 (6th Cir. 1980) (indicating that the class

of persons that section 11(c) was intended to benefit are employees engaging in activity protected

by 11(c), and holding that 11(c) does not provide employees with a private cause of action);

Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1096 (D.C. Cir. 2017) (noting that 11(c)

supplies a remedy for employees who believe they have been subject to retaliation

The text of section 11(c) contains no limiting language of any kind. The text does not

"directly sp[eak] to the precise question at issue" of whether OSHA must rely on the section 11(c)

procedure to vindicate and advance statutory interests other than the interest of employees to be

protected from retaliation for engaging in protected activities. Chevron, 467 U.S. at 842. Rather,

the text of the Act reflects that Congress did not have a specific intention . Id. at

845; see also Montford & Co. v. SEC, 793 F.3d 76, 82 (D.C. Cir. 2015) (where text of statute does

Chevron step one). Put another way, nothing in section 11(c) speaks to whether OSHA

may exercise its authority to promulgate regulations that promote accurate recordkeeping where

anti-retaliation and recordkeeping goals overlap.

Interpreting the Act to permit the Secretary to promulgate a regulation that advances the

accuracy of injury and illness data is consistent

whole. See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014), quoting Univ. of Tex.

Sw. Med. Ctr.. v. Nassar, 570 U.S. 338, 353 (2013); see also Gen. Motors Corp., Inland Div., 8

BNA OSHC 2036, 2041 (No. 76 5033, 1980) (noting that the Commission considers the reporting

requirements of the Act to be a cornerstone of the Act and play a crucial role in providing the

information necessary to make workplaces safer and healthier

violations as de minimus would weaken significantly the reporting requirements of the Act and

the Secretary's regulations

United Steelworkers, AFL-

CIO v. St. Joe Resources, 916 F.2d 294, 299 (5th Cir. 1990) (St. Joe Resources), which the

Secretary cited in both the Supplemental NPRM and the preamble to the final rule as supporting

promulgation of an anti-retaliation provision in the recordkeeping rule. 79 Fed. Reg. at 47607; 81

Fed. Reg. at 29627 & 29672. The court in St. Joe Resources ruled that the Commission had the

authority to order an employer to abate a violation of the medical removal protection (MRP)

at 29 C.F.R. § 1910.1025(k) by ordering back pay. In the

course of reaching that conclusion, the court ruled that section 11(c) did not establish the exclusive

mechanism for requiring an employer to provide back pay the court noting that employment

concluding that the remedial purposes of [the OSH Act] would be

undermined by a presumption of exclusivity. Id., 916 F.2d at 298, quoting Herman & MacLean

v. Huddleston, 459 U.S. 375, 387 n. 23 (1983) (brackets in original) (holding that even though

section 11 of the Securities Act of 1933 and section 10(b) of the Securities Exchange Act of 1934

proscribe some of the same activity, the two provisions address different types of wrongdoing

so the section 11 remedy is not exclusive).

contemplated and rejected making retaliation and/or discriminatory actions subject to a civil

penalty through the issuance of an OSHA citation. (Mem. in Opposition, 6-8). The portions of

identified by USPS do not include any material that suggests Congress

intended the rights and remedy of section 11(c) to promote accurate recordkeeping. (Id.). The

Sixth in Taylor v. Brighton,

616 F.2d at 259-263, confirms that no such congressional intent is reflected in the legislative

history. The Sixth Circuit noted that the possibility of

retaliatory discharge might inhibit employees from reporting OSHA violations. Id. at 260, citing

H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 27 (1970). That concern is different from a concern

that employer retaliation against employees for having reported a work-related injury or illness

might suppress employee reporting of the same.

Assuming for the sake of analysis that legislative history does give rise to

some ambiguity as to whether Congress intended to the address the precise question at issue, the

regulation also withstands an Chevron framework. The

issue to be decided at Chevron step two is whether the enforcement of section 1904.35(b)(1)(iv)

exceeds the bounds of the permissible Barnhart

v. Walton, 535 U.S. 212, 218 (2002), citing Chevron at 843. The regulation will be deemed to

arbitrary or capricious in substance, as failing

to meet the minimum requirements summarized in Encino Motorcars, LLC v. Navarro quoted

above. The rulemaking record here far surpasses the minimum requirements articulated in Encino

Motorcars. The preamble to the final rule reflects the Secretary having examined the relevant

information and having provided cogent reasoning for including an anti-retaliation provision in

the recordkeeping record as a means to promote increased accuracy of illness and injury data that

the Act requires OSHA to collect.

enforcement against unlawful retaliation for reporting of work-related injuries and illnesses, noting

violation of section 11(c). (Mem. in Opposition, 8 & 15). This does not render the promulgation

of the cited regulation arbitrar

Mayo Found. for Med. Educ. & Research v.

United States, 562 U.S. 44, 55, (2011), quoting Smiley v. Citibank (S.D.), N. A., 517 U.S. 735, 740

(1996).

USPS also argues that the provisions of the Act that the Secretary cited as legal authority

-delegation doctrine,

promulgation of the cited regulation is contrary to law. (Mem. in Opposition, 16). See Skinner v.

Mid-Am. Pipeline Co., 490 U.S. 212, 214 (1989) (addressing non-delegation doctrine and noting

standards guiding its actions such that a court could ascertain whether the will of Congress has

been obeyed, no delegation of legislative authority trenching on the principle of separation of

on-delegation doctrine,

provisions of this Act,' we have held that the validity of a regulation promulgated thereunder will

Mourning v. Family Publ Serv., Inc., 411 U.S. 356, 369 (1973); see also Thermal Reduction

Corp., 12 BNA OSHC 1264, 1266 (No. 81-2135, 1985) (citing Mourning for this proposition, and

observing that the recordkeeping regulations requiring employers to maintain injury and illness

records and to produce those records to the Secretary during an inspection reasonably effectuates

Congress's requirement that employers maintain and make available to the Secretary records

pertaining to the incidence of injuries and illnesses in the workplace consistent with the

Act). The preamble to the final rule more than amply establishes that the anti-retaliation regulation

provide and that OSHA

collect accurate injury and illness data.

Enforcement of the anti-retaliation regulation is not rendered arbitrary and capricious

simply because there could be parallel section 11(c) and section 9(a) proceedings involving the

same alleged retaliatory act. To the extent that the Secretary may seek back-pay and similar relief

in an order of abatement in a section 9(a) proceeding enforcing the anti-retaliation regulation,

in a parallel section 11(c)

proceeding. Similarly, one of the parallel proceedings could be stayed to conserve resources and

potentially to permit application of issue or claim preclusion principles to the stayed proceeding.

In its memorandum in opposition to the motion, USPS points to discovery requests that

were filed in a different proceeding before the Commission that also involves an alleged violation

of section 1904.35(b)(1)(iv), which USPS argues would be irrelevant in a section 11(c) proceeding.

The USPS seems to suggest that such discovery requests show that the cited regulation is both

ultra vires and arbitrary and capricious. (Mem. in Opposition, 10-13). To the extent a litigant

regards a discovery request in a particular matter to be outside the scope of permissible discovery,

unduly onerous, disproportionate, or otherwise objectionable, such arguments are best addressed

and resolved in the context of an appropriate discovery motion filed in a particular case, where

such a discovery dispute would be concrete and ripe. This argument is not material to whether the

cited regulation is ultra vires or arbitrary and capricious.

Enforcement of section 1904.35(b)(1)(iv) pursuant to section 9(a) of the Act is well within

the bounds of permissible construction of the Act and is neither arbitrary nor capricious. This

permissible interpretation of the Act is due controlling weight under Chevron, inasmuch as the

anti-retaliation regulation was promulgated pursuant to express delegations of

authority to the Secretary (a) to promulgate regulations necessary or appropriate for the

enforcement of this [Act] or for developing information regarding the causes and prevention of

occupational accidents in section 8(c)(1), (b prescribe regulations requiring employers to

maintain accurate records of work-related deaths, injuries and illnesses in section 8(c)(2), and

in section 8(g)(2). Chevron at 843-44.

GRANTED, and that defense is ordered STRICKEN from the answer.

For the same reasons described in connection with the Chevron step two analysis

arbitrary and

affirmative defense set forth in paragraph 8 of the answe

section, is GRANTED, and that defense is ordered STRICKEN from the answer. See Judulang v.

Holder, 565 U.S. 42, 53 n. 7 (2011) (indicating that the analysis under Chevron step two is

substantially the same as the analysis under

U.S.C. § 706(2)(A)).

SO ORDERED.

/s/

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: December 27, 2018