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.
UNITED STATES POSTAL SERVICE, Respondent. |
OSHRC Docket Nos. 16-1713, 16-1872, 17 0023, 17-0279 |
ON BRIEFS:
Amy S. Tryon, Senior Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; Elena S. Goldstein, Deputy Solicitor of Labor; Kate O’Scannlain, Solicitor of Labor; U.S. Department of Labor, Washington, D.C.
For the Complainant
James C. Colling, Esq.; Eric D. Goulian, Esq.; Deborah M. Levine, Esq.; United States Postal Service, Denver, CO
Arthur G. Sapper, Esq.; Melissa A. Bailey, Esq.; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, D.C.
For the Respondent
DECISION
Before: ATTWOOD, Chairman; LAIHOW, Commissioner.
BY THE COMMISSION:
All five cases were assigned to Administrative Law Judge Sharon D. Calhoun, who held separate hearings for each case, as well as an additional “National Hearing” to hear evidence common to all five cases. The judge did not consolidate the cases for disposition and issued five separate decisions vacating each citation. The Secretary filed a Petition for Discretionary Review applicable to all five cases, and the Postal Service filed a conditional Cross-Petition for Discretionary Review. After the cases were directed for review, the Commission instructed the parties to address the issues raised in their petitions in a single set of briefs.
DISCUSSION
The Act’s general duty clause provides that “[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). To establish a violation of this provision, the Secretary must show: (1) “that a condition or activity in the workplace presented a hazard,” (2) “that the employer or its industry recognized this hazard,” (3) “that the hazard was likely to cause death or serious physical harm,” and (4) “that a feasible and effective means existed to eliminate or materially reduce the hazard.” Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). The Secretary also must prove that the employer “knew, or with the exercise of reasonable diligence could have known, of the violative conditions.” Tampa Shipyards Inc., 15 BNA OSHC 1533, 1535 (No. 86-360, 1992) (consolidated).
I. Hazard
To establish that workplace conditions posed a hazard, the Secretary must prove there was a “significant risk” or “meaningful possibility” that they would harm employees. A.H. Sturgill Roofing, Inc., 27 BNA OSHC 1809, 1811 (No. 13-0224, 2019) (citations omitted); Quick Transport of Ark., 27 BNA OSHC 1947, 1949 (No. 14-0844, 2019). Determining whether conditions pose a significant risk of harm requires consideration of both the “severity of the potential harm” and the “likelihood of its occurrence,” and there is an “inverse relationship between these two elements,” meaning that as the severity of potential harm increases, its “likelihood of occurrence need not be as great.” Weirton Steel Corp., 20 BNA OSHC 1255, 1259 (No. 98-0701, 2003).
On review, the Secretary argues that the testimony of his two heat stress experts, Tustin and Bernard, establishes that the workplace conditions present during each incident posed a significant risk of harm. He contends that Tustin did not base his opinion on the NWS chart, but instead relied on his own epidemiological research. In addition, the Secretary maintains that the “sheer number” of heat-related illnesses that have been reported by Postal Service carriers in recent years shows that the risk is significant, citing Postal Service injury records he contends show that nearly 2,000 carriers reported “heat-related medical incidents” from 2015 to 2018. Finally, he claims the evidence shows that all but one of the citation incidents were caused by exposure to excessive heat.
Second, Gotkin never claimed that the odds he calculated mean that the cited conditions were not hazardous, nor did he otherwise explain the import and relevance of those particular odds to this issue, and his characterization of those odds as “statistically insignificant” or “low” is not necessarily meaningful here because it is merely a relative characterization dependent on his selection of “letter carrier day” as the chosen denominator. Gotkin testified that odds in general are not “statistically significant” unless they reflect at least a one in twenty (five percent) chance of something happening. Thus, according to Gotkin, the odds of a heat stress incident occurring on a “letter carrier day” are not statistically significant unless at least one incident occurs for every twenty letter carrier days, which—since he appeared to count letter carrier days by simply multiplying the total number of employed carriers by the total number of workdays in a year—would amount to every carrier in the nation experiencing a heat stress incident once every twenty workdays, or put another way, five percent of all carriers in the nation experiencing an incident every single workday. This would equate to millions of heat stress incidents occurring every year, since the Postal Service employs around 300,000 carriers. But Gotkin himself essentially acknowledged that by simply choosing a different denominator, which he suggested could, for instance, be the total number of carriers employed in a year, far lower injury rates would then be necessary to reach what he deemed to be statistically significant. He did not say what denominator would be most sensible to use when evaluating whether a workplace condition poses a hazard, nor did he explain why he opted for “letter carrier days” over another option.
Moreover, the extreme injury rates that would be necessary for Gotkin’s “letter carrier day” odds to be “statistically significant” are drastically higher than the injury rates necessary for a workplace condition to pose a hazard under the Act’s general duty clause. See, e.g., Science Applications Int’l Corp., No. 14-1668, 2020 WL 1941193, at *5 (OSHRC, Aug. 16, 2020) (fact that only one employee drowned in fifty years did not show risk of drowning was insignificant); Schaad Detective Agency, Inc., No. 16-1628, 2021 WL 261573, at *3-4 (OSHRC, Jan. 15, 2021) (fact that only one employee was shot in forty-five years did not show risk was insignificant); Peacock Eng’g, Inc., 26 BNA OSHC 1588, 1590 (No. 11-2780, 2017) (finding crypt installation hazardous despite “thousands of accident-free crypt installations”); see also Integra Health Mgmt., Inc., 27 BNA OSHC 1838, 1843 (No. 13-1124, 2019) (the Act generally uses terms in their ordinary sense).
Accordingly, we conclude that the unrebutted testimony of three expert witnesses supports a finding that the environmental and metabolic heat conditions present during the alleged citation incidents were hazardous. See, e.g., Henkels & McCoy, Inc., No. 18-1864, 2022 WL 3012701, at *3 (OSHRC, July 12, 2022) (relying on expert’s testimony to find that condition posed a hazard), appeal docketed, No. 22-13133 (11th Cir. Sept. 19, 2022); Science Applications, 2020 WL 1941193, at *5 (existence of hazard supported by opinions of company safety official and other witness with experience and knowledge relating to the cited activity); Mid South Waffles, 27 BNA OSHC 1783, 1784 (No. 13-1022, 2019) (fire hazard posed by full grease drawer was supported by fire inspector’s unrebutted testimony that grease in the drawer caused a fire).
II. Feasible and Effective Means of Abatement
To establish the abatement element of a general duty clause violation, the Secretary must “specify the particular steps a cited employer should have taken to avoid citation, and demonstrate the feasibility and likely utility of those measures.” Beverly Enters., Inc., 19 BNA OSHC 1161, 1191 (No. 91-3144, 2000) (consolidated); see also BHC Nw. Psychiatric Hosp., LLC, 951 F.3d 558, 564-66 (D.C. Cir. 2020) (citations omitted) (Secretary must show that the employer failed to implement measures that “a reasonably prudent employer familiar with the circumstances of the industry” would have taken). “Feasible” means both “economically and technologically capable of being done.” Beverly Enters., 19 BNA OSHC at 1191. A measure is not economically feasible if it would “threaten the economic viability of the employer.” Id. at 1192 (quoting Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973)). To establish a measure’s utility, the Secretary must show that it would “eliminate or materially reduce the hazard.” Mo. Basin Well Serv., Inc., 26 BNA OSHC 2314, 2316 (No. 13-1817, 2018).
Here, the Secretary identified a number of abatement measures in the four citations at issue before us, as well as in his post‑hearing briefs. In three of the cases (San Antonio, Benton, and Martinsburg), the judge determined that these measures were proposed as alternatives and concluded that the Secretary failed to establish the abatement element because the Postal Service had already implemented one of the proposed measures (training employees on the recognition and prevention of heat‑related illnesses). See Sturgill, 27 BNA OSHC at 1818. In those three cases, the judge also found that the Secretary failed to prove that some of the other proposed measures were economically feasible. In the remaining case (Houston), the judge did not address whether the measures were proposed as alternatives, concluding that the abatement element was not proven because some of the measures were not shown to be economically feasible, some were not shown to provide a material hazard reduction, one measure (training) had already been implemented, and two measures raised in the Secretary’s post-hearing brief were not identified in the citation.
On review, the Secretary contends that he did not propose the abatement measures as alternatives in any of these cases, but rather proposed a “multi-element heat stress program” that would include different elements “such as work/rest cycles, an adequate emergency response program, analyzing existing data on employees’ heat-related illnesses, employee monitoring, training, and reducing outdoor exposure time.” Regarding economic feasibility, he claims the evidence shows that “paying for measures to abate the hazard” would not threaten the Postal Service’s economic viability. The Secretary presents no arguments regarding the efficacy of these proposed measures in materially reducing or eliminating the cited hazard. In response, the Postal Service maintains that the Secretary proposed the abatement measures as alternatives in every case except Houston, and that the judge correctly found that one of the alternatives (training) had already been implemented in those three cases. In every case, the Postal Service also argues the Secretary failed to show that any of the proposed measures were feasible or effective, or that a reasonable employer would have done more than what it was already doing to protect employees.
A. How the Secretary Proposed the Abatement Measures
Moreover, the testimony elicited at the National Hearing shows that both parties clearly understood the abatement measures were not proposed as alternatives. For example, the Secretary asked Tustin whether the Postal Service could use its data on reported heat-related incidents when adopting “an overall heat stress program.” Tustin replied that such information would be useful when adopting such a “program.” The Secretary also asked Tustin whether providing air-conditioned vehicles—one of the Secretary’s proposed measures—would be as effective if the Postal Service did not also mandate rest breaks (a component of another proposed measure, work/rest cycles). Tustin replied that air-conditioned vehicles should be used together with mandatory rest breaks taken inside the vehicles. Similarly, Bernard testified that acclimatization—another proposed measure—was an “important component” of “a heat stress management program.” He said that such a program should include various components, such as “training,” “virtual buddy systems and work/rest cycles” (three of the measures listed by the Secretary in the citation ), and other “things of that sort . . . .” The Postal Service also understood the measures could address the hazard in this combined manner. For example, the Postal Service asked Tustin if he believed an acclimatization program “would be adequate as long as you had other measures in place, such as rest breaks or monitoring?”
Finally, the nature of these proposed measures shows that the potential benefit each could provide would be cumulative, making it implausible that the Secretary would have proposed them as alternatives or that the Postal Service would have so understood them. See Westwood, 2022 WL 774272, at *8 (noting that the parties’ understanding that the measures were not alternatives aligned with “the nature” of the hazard at issue (workplace violence), which “arises in different contexts and conditions” and “necessitate[es] different abatement measures.”) In sum, we find the Secretary did not propose his measures as alternatives nor did the parties litigate them as such.
B. Adequacy, Feasibility, and Efficacy
Work/Rest Cycles, Reducing Time Outdoors, and Acclimatization
In his post-hearing briefs, the Secretary described two of the time-based abatement measures—work/rest cycles and reducing time outdoors—in a similar fashion in each case. He explained that work/rest cycles refers to increasing either the frequency or duration of rest breaks “as heat stress levels increase.” Citing testimony from Tustin and Bernard, the Secretary argued that the Postal Service’s existing policy of allowing carriers to take extra breaks in hot weather was inadequate because it did not include a “mechanism” for carriers to actually do so, and because in practice such breaks were discouraged. As for reducing time spent outdoors, the Secretary claimed that carrier schedules could be adjusted so that the carriers are outdoors as little as possible during the hottest part of the day. He also asserted that the Postal Service could “eliminate extra work during hotter weather.” In the Houston and Martinsburg cases, the Secretary further claimed that a carrier’s time outdoors could be reduced by having another carrier assist with the route.
In the San Antonio case only, the Secretary argued that acclimatization is an appropriate measure to use for new employees not previously exposed to high heat levels, as well as employees who have lost heat acclimatization following an at least two-week absence from work. Citing Bernard’s testimony, the Secretary described two acclimatization methods: (1) reducing the daily duration of an employee’s heat exposure and gradually increasing such exposure over several days; and (2) treating the heat index to which an employee is exposed as higher than it is, such as by adding ten degrees to it on the first day, and then implementing any heat-stress protections for the employee that would be triggered by that higher heat index, such as work/rest cycles.
Economic Feasibility
On review, the Secretary does not dispute that these time-based abatement measures would impose financial costs. But he maintains that such costs would not threaten the Postal Service’s economic viability, for several reasons: (1) the Postal Service is unlikely to go out of business for financial reasons because it is a “quasi-governmental agency” and Congress will prevent that; (2) the losses it has experienced are only “paper losses” because they are the result of a statutory obligation to prefund retirement health benefits that the Postal Service has not complied with and that has not been enforced; (3) it can raise prices or borrow funds to pay for the measures; and (4) it plans to spend money on other projects in coming years, including measures to increase productivity, and could reallocate that money to pay for the proposed measures instead. The Secretary also argues that Park’s estimated $100 million annual cost for an acclimatization program and an extra five-minute break is a small amount relative to the Postal Service’s overall expenses and could be covered by its revenue if its retirement obligations are not considered.
In response, the Postal Service echoes the judge’s analysis and argues that paying for these measures will prevent it from meeting its statutory obligation to provide the “essential public service” of universal mail delivery. The Postal Service relies on testimony from its Chief Operating Officer, David Williams Jr., who stated that the Postal Service is projected to run out of money in coming years (he predicted this would happen in 2024), and that the abatement costs would “accelerate” that result, at which point the organization’s ability to provide universal postal services would be threatened. The Postal Service also maintains that it already gives carriers “rest, lunch, and unlimited comfort breaks” and acclimatizes new carriers through its on-the-job training program, and argues that the fact that thousands of other carriers delivered mail on the same dates at issue in the citations without incident shows that the Secretary’s proposals are unnecessary. Regarding Park’s estimate of the cost of a single five-minute break, the Postal Service contends that the Secretary did not show (or even claim) that providing such a break would materially abate the hazard, and it maintains that the actual cost of the Secretary’s work/rest cycles proposal would be much higher.
This is also true with regard to acclimatization. Before the judge, the Secretary argued that Park’s estimate of the annual labor costs to acclimate carriers who have been away from work for at least one week during the months of June to August was an over-estimate because acclimatization is only needed for new carriers and carriers returning from a two-week absence, and is “generally only needed when the heat index is at least 91℉ . . . .” But the Secretary provided no cost estimate for his narrower acclimatization proposal and cited no evidence to support his claim that it would necessarily be lower than Park’s figure. For its part, the Postal Service contends that Park’s figure is an under-estimate because it only reflects labor costs and does not take into account other business impacts. With no evidence to support the Secretary’s claim, we have no basis for determining who is correct. In short, because the Secretary has never identified the specific costs associated with his time-based abatement measures or, as discussed below, pointed to evidence that supports their economic feasibility irrespective of such costs, the record lacks sufficient information to evaluate whether these measures are economically feasible.
The USPS has been losing money for more than a decade and is on an unsustainable financial path.
. . .
Both administrative and legislative actions are needed to ensure that the USPS does not face a liquidity crisis, which could disrupt mail service and require an emergency infusion of taxpayer dollars.
. . .
Without appropriate structural reform, the USPS’s growing financial burden and its unstainable business model pose an existential threat to its operations.
A February 2017 report from the U.S. Government Accountability Office (GAO) regarding the Postal Service’s “Fiscal Sustainability” makes similar findings, classifying the organization as “high-risk” and stating that its “deteriorating financial condition is unsustainable” and its “mission of providing prompt, reliable and efficient universal services to the public is at risk.”
We find that this evidence collectively shows that the Postal Service’s financial condition is dire and it is already at risk of financial collapse, an outcome that would be expedited by additional expenses. The Secretary’s various attempts to refute this compelling evidence are unsupported. According to the Secretary, spending $100 million would not be “the tipping point” for the Postal Service because it is a small amount relative to its overall budget, but he cites no evidence to support such a claim. The Secretary also contends that additional expenses would not threaten the Postal Service’s economic viability because Congress would never allow the Postal Service to cease to exist. This claim is highly speculative. The only evidentiary support the Secretary cites for this theory is Williams’ testimony that his “best guess” is that the Postal Service would “get some kind of legislative relief” before going out of business and Corbett’s testimony that he believed it “unlikely” the organization would completely close. But Williams expressly said he did not know and could not predict what would happen, and Corbett said he believed the Postal Service would at least have to cut back on services, employees, and facilities, damaging its brand and threatening its ability to fulfill its universal service obligation.
The Secretary also points out that the Postal Service has to date continued to function despite yearly losses. But he has presented no evidence to rebut Williams and Corbett’s projection that the Postal Service will run out of money and be unable to pay its financial obligations in 2024, a claim corroborated by the Task Force’s assertion that the organization is facing an “existential threat” from its financial condition, as well as the 2017 GAO report’s finding that it is at “high-risk” and financially unsustainable. Given this evidence, it would be unreasonable to presume from the fact that the Postal Service has continued to operate to date that its viability is not at risk in the future.
Finally, the Secretary points out that the Postal Service plans to spend money on various other projects going forward and contends that it could reallocate those funds to pay for the proposed abatement measures instead. But this simplistic claim is unsupported by evidence that doing so would be economically viable or even the best use of the Postal Service’s resources to promote employee safety. The Secretary cites the 2018 GAO report, which states that “USPS projects average annual capital cash outlays of $2.4 billion from fiscal years 2018-2028,” an amount “largely driven” by its “plans to acquire a new fleet of delivery vehicles,” but that also includes “facilities, information technology, and mail-processing equipment.” The report immediately adds: “However, USPS faces a serious financial situation with insufficient revenues to cover expenses. This uncertainty may result in USPS’s making capital spending tradeoffs . . . .” Future spending, the report explains, will depend on future revenues, “will likely involve prioritization decisions,” and the “uncertain outlook may result in USPS changing its current capital spending plans . . . .”
Technical Feasibility
On review, the Secretary does not address the technical feasibility of his time-related measures at all (apart from opining in a footnote that the 24-hour clock schedule should not be “sacrosanct”). Before the judge, he cited only to Bernard’s opinion that it would be feasible for the Postal Service to implement the work/rest cycles and acclimatization measures because part-time carriers or “temporary workers” could be “brought in.” But as the Postal Service points out, Bernard subsequently admitted that he offered that opinion without knowing or considering what is in the CBAs, what the “mail cycle” is, or what the Postal Service’s delivery obligations are. Because the Secretary neither addresses these concerns nor points to any other evidence to support the technical feasibility of the time-based measures, we find that he failed to meet his burden on that issue.
Changes to carrier schedules would also need to be negotiated with the unions, because the CBAs do not allow the Postal Service to make unilateral changes. If the Postal Service were to have additional carriers assist on hot weather days rather than slow delivery schedules, the CBAs also could pose technical challenges. The National Association of Letter Carriers’ (NALC) CBA requires that full-time carriers be given eight paid hours per shift, including on non-scheduled workdays, and it limits the percentage of carriers who can work part-time.
We also question whether the Secretary has established the feasibility of adjusting carrier work schedules to avoid the hottest hours given his failure to address the Postal Service’s claim that doing so would require carriers to deliver in low or no light conditions, which might pose other safety concerns such as an increased risk of falls and vehicle accidents, both of which the Postal Service contends are far more common among carriers than heat‑related illnesses.
Emergency Response Plans and Monitoring
Although the judge did not discuss these proposals in the San Antonio, Benton, and Martinsburg decisions, she found in the Houston decision that the Secretary failed to prove they would be materially effective beyond the procedures the Postal Service already had in place. We find that the Secretary has not shown in any of the cases that either measure would be feasible or materially effective. Regarding the buddy system, the Secretary never explained what this system would specifically require of carriers, such as whether they would be required to contact each other at specified intervals, and if so, what the feasible but also effective intervals would be. See Mid South Waffles, 27 BNA OSHC at 1789-90 (Secretary must explain what the abatement measure would require with specificity); Nat’l Realty, 489 F.2d at 1268 (“[T]he Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation . . . .”). When asked if a virtual buddy system would have “significantly reduced the hazard,” Bernard replied that he thought it would because it would offer “the potential to address the signs and symptoms much earlier . . . .” But he did not say how often carriers would need to contact their buddy to achieve this benefit or discuss the feasibility of any specific schedule. It is also unclear from Bernard’s testimony whether this measure would offer a material improvement beyond the Postal Service’s current procedures. In fact, Bernard agreed that if carriers “call 9‑1‑1 [when] they experience signs or symptoms” they will be “no less safe than if they called their virtual buddy or called their supervisor.”
As for requiring carriers to contact the Postal Service’s occupational health services program, Tustin opined that if carriers could quickly speak to a nurse or physician in that program, it would eliminate “any delays” and any “potential conflicts of interest talking to a supervisor,” as well as avoid “having someone who is not really medically knowledgeable triaging illnesses.” At the same time, Tustin acknowledged that the Postal Service’s current practice of instructing carriers to “simply call 911” if their symptoms are severe was just as effective as calling someone from the occupational health program. And the Secretary points to no evidence that implementing this measure would have been feasible. He did not explain, for example, how many occupational health professionals are available at any given time, whether they are available to take such calls, or whether additional staff would need to be hired. Thus, we find the Secretary has not shown that his emergency response and monitoring proposals are either feasible or effective.
Analyzing Data
The Secretary claimed in each of his post-hearing briefs that the Postal Service could materially reduce the excessive heat hazard by evaluating its own heat-related illness data “to understand the causal factors, and use that information to create an effective heat stress program.” In support, the Secretary cited Tustin’s testimony that analyzing such data would allow the Postal Service to determine what “environmental conditions are associated with heat-related illnesses in their workforce,” and pointed out that Tustin himself analyzed the data in this manner and created a chart showing how the number of incidents correlates with temperature levels.
The Secretary, however, did not include this proposed measure in any of the citations before us, and the Postal Service did not address it in its post-hearing briefs (nor does it on review). Likewise, the judge did not address this measure at all in the San Antonio, Benton, and Martinsburg decisions and in the Houston decision, she expressly declined to address the measure because the citation did not list it. On review, the Secretary does not address the judge’s rejection of this measure due to its absence from the citations. At the same time, the Postal Service does not argue that the measure should not be considered on that (or any other) ground.
Air-Conditioned Vehicles
The Postal Service does not specifically address this abatement proposal on review, but below it argued that carriers already have access to air-conditioned or shaded locations where they can rest. In the Martinsburg case, for example, it pointed out that the carrier involved in the citation incident testified that she took a fifteen-minute rest break in an air-conditioned 7-Eleven that day, and said she could go there or to several other air-conditioned businesses at any time. The judge did not discuss the Secretary’s proposed measure in the Benton and Martinsburg decisions. In the Houston decision, she stated only that she would not address it because it was not included in that citation.
We note that this proposed measure appears only in the Martinsburg citation. But again, putting aside whether that omission is of any consequence here, we find that the Secretary has failed to show it would have been feasible for the Postal Service to have made air-conditioned vehicles available to all carriers prior to the summer of 2016. See Nat’l Realty, 489 F.2d at 1266 (“[T]he Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation . . . .”); Cormier Well Serv., 4 BNA OSHC 1085, 1086 (No. 8123, 1976) (“[The Secretary] must . . . show the existence of feasible steps the employer could have taken to abate the hazard and, therefore, avoid citation.”). The Postal Service began taking steps to replace its aging fleet in 2014, and when the National Hearing took place in early 2019, was in the process of testing and evaluating prototypes created by different potential suppliers. Han Dinh, the Postal Service’s manager for vehicle engineering, projected that the actual production of new vehicles would not begin until at least December 2021.
At no point has the Secretary explained why he believes it would have been feasible for the Postal Service to have completed this project before the citations were issued. As for Bernard’s testimony, he merely opined that using air-conditioned vehicles is “technically feasible,” but agreed that he “didn’t say it was economically feasible.” He was not asked to (nor did he) provide an opinion on whether it would have been feasible for the Postal Service to have made such vehicles available to all carriers by 2016. As a result, we find that the Secretary has not proven the feasibility of this proposed measure.
Training
Although the Secretary does not dispute that the Postal Service provided heat safety training to employees at the stations at issue, he argued in only the Houston and Martinsburg cases that the excessive heat hazard could be materially reduced if the Postal Service provided better training to the employees in those stations. On review, the Secretary fails to identify what the Postal Service could have done to improve its training in either of those cases, citing only Bernard’s testimony that “there seemed to be a disconnect between what was included in the [training] materials and what was actually being absorbed by [employees].” Below, the Secretary critiqued the training for being “focused primarily on hydration.” In the Houston case, the Secretary also vaguely asserted that the Postal Service could have included “a wider variety of topics, different methods for conveying said topics, and follow-up from upper management to ensure” that the training was provided and “absorbed by both supervisors and carriers.” In that case, he also alleged that two Houston carriers had received no heat safety training in the six months prior to the date of the citation incident. And in the Martinsburg case, the Secretary suggested that a computer-based heat safety training the Postal Service provided employees could have been made mandatory.
In both cases, the judge agreed that the Secretary failed to show the Postal Service provided inadequate heat safety training, noting that the Secretary failed to articulate what additional training methods the Postal Service should have used. In the Houston case, the judge pointed out that carriers at the Astrodome Station (where the carrier at issue worked) were given heat safety talks in both early May and late June 2016 as part of the Southern Campaign and that these talks covered the symptoms of heat-related illnesses, precautions to take, and instructions to call 911 when experiencing symptoms. In the Martinsburg case, the judge similarly found that carriers had been trained on the recognition, prevention, treatment, and reporting of heat-related illnesses.
We agree with the judge that the Secretary has failed to show that the Postal Service’s heat safety training was inadequate in both cases. USPS, 21 BNA OSHC 1767, 1773-74 (No. 04-0316, 2006) (to establish abatement element, Secretary must prove “that the methods undertaken by the employer . . . were inadequate”). As she found, the Secretary identified no specific ways that the training provided at either station could have been improved. Regarding his claim of a misplaced emphasis on hydration, the Secretary relied on testimony from Bernard that “even though the training [provided as part of the Southern Campaign] was broad” in the information it covered, “what [the employees] seemed to recall was the message about drinking . . . .” When asked if too much emphasis was put on hydration, Bernard simply replied that the “training materials covered a lot of topics,” and “while it was there on paper, the execution of that lent to . . . [when] you query people about what do they know to deal with heat stress they would report drink water.” When asked if the training would have materially reduced the hazard if it “had, you know, a better focus to it,” he replied, “I think so, yes.”
Finally, regarding the Secretary’s claim that the training provided in Martinsburg was inadequate because the Postal Service’s computer-based training was not mandatory—the only other specific deficiency he alleged—he presented no evidence that this training would have materially reduced the hazard and, in fact, acknowledged that employees in Martinsburg were being trained on heat safety in several ways, including through stand-up talks given in the mornings before carriers start their routes. The Secretary also does not explain why mandating this particular training would have materially improved upon any other type of training.
In sum, the Secretary has not met his burden to identify specific measures that the Postal Service could have feasibly taken that would have materially and effectively reduced the excessive heat hazard that existed in these cases. Accordingly, we vacate all four citations.
SO ORDERED.
/s/
Cynthia L. Attwood
Chairman
/s/
Amanda Wood Laihow
Dated: February 17, 2023 Commissioner
1 Two of the citations (Docket Nos. 16-1713, 16-1872) were initially characterized as serious but later amended to repeat.
2 Although the citations do not uniformly use the term “excessive heat,” both on review and in the proceedings below, the Secretary claims that the basis for each citation is exposure to an “excessive heat” hazard, which he states is “also referred to as heat stress.”
3 In amended complaints filed in each case, the Secretary alleges that Postal Service employees have also been affected by excessive heat “nationwide,” and he requests “an order of enterprise‑wide abatement against Respondent compelling its compliance with Section 5(a)(1) of the Act at all of Respondent’s facilities . . . .” The Secretary’s request is moot given our decision to vacate the citations. In response to this request, the Postal Service has asked the Commission to issue a declaratory order stating that a mandate of this sort is impermissible, which it contends is warranted regardless of whether the citations are vacated because such an order could potentially save the Postal Service litigation resources in the future. The Postal Service’s request is denied. See, e.g., Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 734-35 (1998) (litigation cost saving does not justify deciding unripe issues).
4 According to the citations, the violations occurred on these dates in 2016: June 13 and 15 (San Antonio); June 9 and July 21 (Des Moines); June 10 (Benton); June 17 (Houston); and August 13 (Martinsburg).
5 Since we reach a different outcome in the Des Moines case (16-1813), that citation is addressed in a separate decision also issued today.
6 We note that the judge did not address the other elements of the Secretary’s burden of proving a general duty clause violation and given our conclusion that abatement has not been established, we need not reach these elements.
7 The Postal Service suggests on review that the Secretary’s use of the term “excessive heat” fails to provide notice of the conditions at issue and that the term “violates Commission precedent,” citing Sturgill, 27 BNA OSHC at 1818 n.16. We reject any claim by the Postal Service that it lacked adequate notice of the nature of the hazard or workplace conditions at issue. The Secretary has made clear throughout these proceedings that he is alleging that the environmental and metabolic heat conditions present on specific dates when specific carriers worked put them at risk of experiencing a heat-related illness. In each case, the Secretary described those conditions in detail—emphasizing the temperature and humidity levels in particular—and in all but one case argued that they caused the carrier to experience heat exhaustion or another heat-related illness. The Postal Service obviously understood the Secretary’s allegation, as it called two heat stress experts as witnesses and elicited testimony from both relating to the potential for environmental and metabolic heat conditions to cause heat-related illnesses. In fact, the Postal Service repeatedly asked one of its experts to specifically evaluate whether the particular heat conditions present during the cited incidents caused the carriers’ illnesses. The Postal Service similarly questioned the Secretary’s heat stress experts. Moreover, the Postal Service does not claim that its ability to litigate these cases was prejudiced because it did not understand the nature of the hazard or conditions at issue, nor does it point to any support for such a claim.
Its other assertion—that the term “excessive heat” “violates” Sturgill—is also groundless. In the Sturgill footnote it cites in support, the Commission did not discuss the Secretary’s use of that term or say that using it in a citation would be fatal. 27 BNA OSHC at 1818 n.16. The Commission simply noted that industry documents referencing the potential for “heat” to pose a hazard did not show that the industry recognized that the cited climatological conditions were hazardous. Id. We note that in each case at issue here, the judge addressed the concerns raised by then Chairman MacDougall in her Sturgill concurring opinion, as well as those of Commissioner Sullivan, namely that “excessive heat” is too vague a description to provide notice to an employer of the “specific, concrete environmental conditions” alleged to have put employees at risk of harm. Id. at 1815 n.14, 1822-23. But neither expressed that a lack of notice from a citation’s use of that term could not be cured by more precisely setting forth the nature of the conditions alleged to have been hazardous in other filings or at a hearing, or that the use of that term is fatal to the Secretary’s case regardless of whether the employer has an actual understanding of the conditions at issue or whether the employer’s ability to defend itself was prejudiced. Here, the Secretary provided sufficient notice of the specific workplace conditions alleged to be hazardous and the Postal Service’s ability to challenge that allegation was not prejudiced.
Although Commissioner Laihow agrees that the Secretary has provided sufficient notice to the Postal Service of the specific workplace conditions at issue in these cases, and as discussed below also agrees that those conditions were shown to be hazardous, she is mindful of the concerns raised by former Chairman MacDougall and former Commissioner Sullivan in Sturgill regarding the Secretary’s use of the term “excessive heat.” In her view, “excessive heat” is a vague term (one yet to be defined by regulation), making it difficult for employers to predict what workplace heat conditions the Secretary will treat as “excessive” under the general duty clause. A myriad of factors, such as the geographical area where the work is being performed and the nature of the tasks involved, can impact the meaning of this term. What might be considered “excessive heat” in Maine may not be considered such in Texas. In short, this term leaves employers guessing.
Therefore, Commissioner Laihow emphasizes that her conclusion in this case is limited by the instant record, which only supports a finding that the specific heat conditions that existed at the time of the specific incidents at issue in these citations were proven to pose a hazard. It does not mean she would necessarily reach the same conclusion in a future case involving similar environmental or metabolic conditions. Cf. Sturgill, 27 BNA OSHC at 1814-15 (expert’s opinion that alleged heat conditions could have caused heat-related illness was premised on unexplained assumptions that were inconsistent with other evidence in the record). In other words, Commissioner Laihow does not view today’s decision as establishing any sort of criteria for determining when “excessive heat” may be present. That will presumably be accomplished by the Secretary once an OSHA standard prescribing such requirements is promulgated. 29 U.S.C. § 655(b) (procedures for promulgating most new standards); see also Kastalon, Inc., 12 BNA OSHC 1928, 1928-29 (No. 79-5543, 1986) (consolidated) (“Congress intended that the Secretary would primarily rely on specific standards, rather than the broad mandate of the general duty clause, to seek the correction of workplace hazards.”); Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997) (“Courts have held that enforcement through the application of standards is preferred because standards provide employers notice of what is required under the OSH Act.”). Cf. Cal. Code Regs. Tit. 8, § 3395 (Cal/OSHA standard regarding “Heat Illness Prevention in Outdoor Places of Employment”).
8 In the Benton case, the judge went further and found that heat did not cause the carrier’s illness.
9 According to the judge, both of these experts are highly credentialed and appeared “confident, knowledgeable, and trustworthy[.]” Tustin is a medical officer in OSHA’s Office of Occupational Medicine and Nursing. The judge found him qualified as an expert in “occupational medicine,” “heat stress exposure assessment and the epidemiology of heat-related illnesses.” Conibear owns OMS, a company that provides various medical services to corporate clients, such as employee “fitness-for-duty” evaluations, where she also serves as a “senior physician.” She is also the president and majority owner of Carnow Conibear and Associates, a company that conducts lead and asbestos inspections and designs remediation projects. The judge found Conibear qualified as an expert in “occupational medicine, with specialized expertise in heat stress and abatement measures that may materially reduce the hazard of excessive heat.”
10 In the Benton case, however, the judge appeared to credit Conibear’s opinion that the incident was not caused by heat, which Tustin did not dispute.
11 The NWS chart classifies heat index danger levels, assigning them to four categories—“Caution,” “Extreme Caution,” “Danger,” and “Extreme Danger”—representing the “Likelihood of Heat Disorders with Prolonged Exposure or Strenuous Activity.” The heat index is a measurement that combines temperature and humidity levels.
12 Bernard has a Ph.D. in occupational health and is a professor at the University of South Florida College of Public Health, where he teaches courses on occupational safety and health. The judge found Bernard qualified as an expert in “industrial hygiene” and “industrial heat stress.”
13 Gotkin supervises a team at Economic Research Services, a firm that provides consulting services “in the area of labor and employment.” He described himself as a “labor economist” and “applied econometrician.” The judge found Gotkin qualified as an expert in “the field of economics, with specific expertise in the field of statistical analysis and the application of statistics in sampling.”
14 As noted, Tustin and Conibear disagreed over whether the environmental and metabolic heat conditions played a “causal role” in the carriers’ illnesses. Because we find that the Secretary has established the existence of a hazard regardless of the causes of these incidents, we need not resolve this dispute. We cannot ignore, however, that some of Conibear’s testimony in this regard is quite dubious. When asked if heat “played a role” in one of the incidents, Conibear replied: “I don’t know what ‘played a role’ means.” But she did not express the same confusion when twice asked the same question at her deposition, where she herself stated that heat “may have played a role” in a carrier’s illness. When asked at the hearing what she thought the phrase meant at the time of her deposition, she replied: “I really can’t tell you.” When asked if she understood what it meant when she used it herself at her deposition, she replied: “Probably not.” Conibear also testified that heat exhaustion is “not considered to be serious,” but on cross-examination admitted saying essentially the opposite at the hearing in a previous Commission case, in which she testified that it is “not usually a fatal illness” but “certainly should be considered a serious illness . . . .” These inconsistencies raise questions about the credibility of Conibear’s medical opinions, such as that one of the San Antonio carriers’ profuse sweating was “not related in any way” to his having walked five miles while carrying a thirty‑pound satchel when the heat index was above 100℉, and her claim that he would have started profusely sweating that same afternoon even if he had been sitting at home in air conditioning.
15 Tustin’s response to a single question he was asked at the hearing about the NWS chart does not support rejecting his repeated testimony that his opinion was based on his own studies and those from other authors that he has reviewed. Tustin had just explained that the NWS chart and a similar OSHA chart “essentially come to the same conclusions [regarding the risk levels associated with different heat index ranges] I’ve come to,” when he was asked: “So you did in fact rely on the NWS heat index chart . . . ?” His response (“Yes, that’s one of the things I relied on.”) aligns contextually with his testimony as a whole, which reflects that he primarily based his opinion on other sources and merely found that the NWS chart provided additional, corroborating support for his independent conclusions.
16 In Benzene, the Supreme Court added that the Secretary is not required to support the presence of a significant risk “with anything approaching scientific certainty,” does not need to “wait for deaths to occur before taking any action,” and can make “conservative assumptions” that err “on the side of overprotection rather than underprotection.” 448 U.S. at 655-56.
17 As a college professor, Bernard has taught courses in occupational safety and health for almost thirty years and has published sixteen peer-reviewed articles, most of which concern heat stress including “several looking at the risk profiles associated with heat stress.” He regularly gives presentations on heat stress to other professionals, is a consultant for private employers on their heat stress plans, and has been retained as an expert on heat stress in at least two other litigations. Bernard is also a member of the Physical Agents Committee of the American Conference of Governmental Industrial Hygienists (ACGIH) and wrote portions of heat stress guidelines published by the organization.
18 The judge found Harvey, who manages an industrial hygiene group at Conibear’s environmental health and safety consulting firm, Carnow Conibear & Associates, qualified as an expert an “industrial hygiene, with specialized expertise in assessing the risk of exposure to excessive heat.”
19 The Postal Service implies that its experts testified that the conditions were not hazardous, but the testimony it relies on provides no support for any such claim. In the transcript pages it cites, Harvey was asked about heat “Threshold Limit Values” (TLVs) published by the ACGIH. Harvey said that the TLVs are intended to mark wet bulb globe temperature (WBGT) levels at which the human body will be able to maintain its core temperature below 38℃. At the Postal Service’s prompting, Harvey read a passage from a non-admitted publication stating that “[the TLV] appears to have a margin of protection of about 3 degrees Celsius WBGT, but this margin of protection has not been sufficiently demonstrated to merit change [of the TLV] at this time.” The Postal Service then asked Harvey to add 3℃ to the TLVs listed for each carrier identified in the citations on a chart—also not admitted into evidence and referred to as a “demonstrative” exhibit—which in addition to the TLVs purports to display the WBGTs during the citation incidents as well as “WBGT-CAV[s]” (clothing-allowance values); the latter are 8℉ lower than the purported actual WBGT for one of the incidents and 2℉ lower for all of the remaining incidents. Harvey responded that adding 3℃ to the TLVs shown on that chart would result in higher figures than the WBGT-CAVs displayed on the chart for three of the incidents (and equal or lower figures for the remaining). In other words, in this rather convoluted testimony relied on by the Postal Service, Harvey did not say that the WBGTs present when the carriers worked were below the ACGIH’s TLVs or that the heat conditions were not hazardous. Moreover, Harvey said that the TLVs “are not designed to prevent heat illness,” that “you certainly can have heat illnesses below the TLV level,” and that he recommends employers take heat illness prevention steps even when the WBGT is below the TLV. He added that he “certainly” would expect some heat-related illnesses to occur when the WBGT is below the TLV plus the 3℃ increase that the Postal Service’s counsel instructed him to add.
20 The judge did not admit Harvey’s report, but allowed him to read excerpts into the record.
21 Gotkin appeared to calculate the number of “letter carrier days” in these periods by multiplying the total number of Postal Service carrier “workdays” in each period by the total number of carriers employed by the Postal Service in those periods. However, much of Gotkin’s testimony, including his description of how he calculated a “letter carrier day,” lacks context or background information that Gotkin apparently presumed would be understood. Gotkin repeatedly referenced—as did the Postal Service—his expert reports, despite those reports not being in evidence.
22 The Houston citation, which the Postal Service agrees does not propose alternatives, states: “Among other methods, one . . . method . . . is to follow the guidelines contained in [multiple OSHA and NIOSH publications]: [followed by list of measures].”
23 The Martinsburg post-hearing brief uses “many steps” rather than “several steps.”
24 In Sturgill, the Commission mentioned in a footnote that a citation’s use of “the plural word ‘methods’ ” in the phrase “methods . . . include, but are not limited to,” could “suggest” that each measure was intended as an alternative means of abatement. 27 BNA OSHC at 1818 n.17. But the Commission did not say that the mere use of the word “methods” means that the Secretary is proposing alternative methods. Id. See Westwood, 2022 WL 774272, at *8 (whether alternatives were proposed turns in part on parties’ understanding reflected in record as a whole).
25 The Postal Service argues for the first time on review that the Secretary is also required to show that the “expected costs” of his proposed measures are “reasonably related to their expected benefits” to establish their feasibility. As this argument was not raised below, we decline to address it. Commission Rule 92(c), 29 C.F.R. § 2200.92(c) (“The Commission will ordinarily not review issues that the Judge did not have an opportunity to pass on.”).
26 In the San Antonio and Benton cases, the Secretary referred to “Emergency Response and Employee Monitoring” as a single category of abatement measure. In the Houston and Martinsburg cases, the Secretary treated “Emergency Response” and “Employee Monitoring” as separate categories.
27 The citations include a few other proposed measures that the Secretary did not discuss in his post-hearing briefs and therefore, we do not address them. See Peacock Eng’g, 26 BNA OSHC at 1593 (not addressing measures listed in citation that Secretary did not defend to judge); Roberts Pipeline Constr., Inc., 16 BNA OSHC 2029, 2030 (No. 91-2051, 1994) (Commission not obligated to “develop arguments not articulated by the parties . . . .”), aff’d, 85 F.3d 632 (7th Cir. 1996) (unpublished).
28 The judge specifically identified these time-based measures as “relating to acclimatization programs, additional paid breaks, work/recovery cycles, and earlier workday start times[.]” While the Secretary did not identify “additional paid breaks” as a separate abatement category, his work/rest cycles, reducing time outdoors, and acclimatization proposals all involve giving carriers additional paid rest time. The Secretary proposed earlier workday start times as one manner of accomplishing his reducing time outdoors proposal.
29 At the hearing, Park said she had been employed as a “financial economist” at the Postal Service for one month, and prior to that had worked as a “labor economist” for the Postal Service. Her duties in the latter role included providing cost estimates for potential wage increases during union negotiations.
30 Nor did the Secretary provide estimates of the costs for any of his other proposed abatement measures, which we address below, though he does rely on the fact that the Postal Service is already planning to purchase air-conditioned vehicles to support the economic feasibility of that particular proposal.
31 Williams further testified as follows:
Q. In 2024 is it your prediction that the Post Office is going out of business?
A. That’s my best guess. That’s just a guess. . . .
Q. And the organization could literally die?
A. It could.
Q. And Congress will let that happen in your opinion?
A. I don’t know. I can’t predict what Congress may or may not do. . . . My best guess is that we will get some kind of legislative relief before that happens. But I don’t know. I can’t predict that.
32 On April 12, 2018, President Trump signed an executive order that established this Task Force and charged it with evaluating the Postal Service’s operations and finances, and issuing recommendations for the organization to achieve a sustainable business model.
33 The Postal Service’s 2018 Annual Report to the SEC (Form 10-K) states that the organization can raise rates on services with approval from the Postal Regulatory Commission, though its “market-dominant” services are subject to a price cap based on the consumer price index. The report also states that the Postal Service can borrow money as long as its debt does not exceed $15 billion (a maximum imposed by statute), and that its total existing debt in 2018 was $13.2 billion.
34 According to Corbett, an investment review committee decides what projects to prioritize—for example, if a roof were leaking or at risk of collapsing, replacing it would be made a priority. At the same time, he said that the Postal Service has imposed a general moratorium on purchasing furniture.
35 The Postal Service has a CBA with the National Association of Letter Carriers (NALC), a union that represents all “city letter carriers.” It has a separate CBA with the National Rural Letter Carriers Association, which represents all “rural letter carriers.”
36 If reducing time outdoors were accomplished by structuring carrier schedules to avoid the hottest part of the day (e.g., having carriers begin their routes earlier), rather than through additional break time, it might not slow down delivery schedules. But it would require ad hoc schedule alterations with similar technical challenges.
37 Regarding work/rest cycles, we find that the Secretary also failed to establish this method would be materially effective because he does not explain what this measure would specifically entail. He claims that the Postal Service, which already provides carriers with rest breaks, should give more breaks when heat conditions are hazardous, but does not say how many more or under what particular heat conditions such breaks should be given. See Mid South Waffles, 27 BNA OSHC at 1786 (Secretary’s proposal that employer clean grease drawer without saying how often to do so proposed a result to be achieved, not a specific abatement method); Nat’l Realty, 489 F.2d at 1268 (“[T]he Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation . . . .”). Bernard testified that he included a chart with work/rest guidelines in his expert report, but the Secretary did not propose that the Postal Service adopt those guidelines and Bernard’s report was not admitted into the record.
38 In the San Antonio, Houston, and Martinsburg cases, the Postal Service stated that it also monitors carriers by having supervisors sometimes go out on routes to check on them. And in the Benton case, it said that carriers are “adequately monitored to ensure adequate hydration and rest,” but did not say how they are monitored.
39 In a footnote in his San Antonio Post-Hearing Brief, the Secretary stated that supervisors could also use a GPS tracking system to identify carriers who are moving slowly and call to check on them. In response, the Postal Service argued that this proposal is too vague and cited testimony that it would be infeasible for supervisors to watch a monitor throughout the day to determine whether any of the many carriers delivering mail had stopping moving. The judge did not address these arguments. In any event, we agree that the Secretary did not show this measure was feasible or that it would have been materially effective.
40 In Pepperidge Farm, the Commission held that the Secretary may propose that an employer engage in a “process” to determine whether particular actions will abate a hazard. 17 BNA OSHC 1993, 2034 (No. 89-265, 1997). But it made clear that the Secretary still must at least show that the underlying actions that are the subject of such a process have “some . . . efficacy”: “We prefer the term ‘process’ . . . because experimentation may be read to imply the application of abatement methods the efficacy of which have not been established . . . . [W]e would not require employers to adopt abatement methods without some showing of their efficacy.” Id. at 2033 n.112. In any event, the Secretary did not allege that the Postal Service should have analyzed its data in order to engage in a “process” to find the best abatement approach.
41 Both San Antonio carriers had air-conditioned vans, as did the Houston carrier. The other carriers involved in the citation incidents all drove LLVs without air-conditioning.
42 The “Southern Area” is one of seven areas in which the Postal Service divides its operations. Houston is in the Southern Area, though Martinsburg is not. The Southern Area consists of Arkansas, Texas, Louisiana, Oklahoma, Mississippi, Florida, and a portion of Georgia. The other six areas are: Northeast Area, Eastern Area, Western Area, Pacific Area, Great Lakes, and Capital Metro.
43 As Bernard acknowledged, the record shows that the Postal Service provided an “extensive” amount of heat safety training at the Astrodome Station as part of its Southern Campaign. On April 26, 2016, the Southern Area safety manager informed all Southern Area Districts about the “Heat Stress Campaign” in a letter and required them to certify that all employees had viewed a video on heat safety by May 13, to certify that supervisors also completed a “Heat Stress Prevention Program training for Supervisors and Managers,” and to provide safety talks on heat stress “throughout the summer months” that are tracked. The Astrodome Station “safety captain” testified that he was responsible for conducting many of the station’s safety talks and over his five years with the station, had given typically twenty or thirty each summer, with the main topic covered being heat safety. In addition to these talks, he said that all carriers were required to watch a video about heat safety, and that he had posted some heat-related safety information on a bulletin board. Screen savers on monitors located where carriers sort mail also display heat-related safety messages. An Astrodome Station supervisor testified that he had worked at Houston stations since 1984 and that employees were always given heat safety talks every summer. And a safety specialist for stations in the Houston area (including the Astrodome Station) testified that he provides an orientation for all new hires that includes training on heat safety.
44 The sign-in sheets show that carriers at the Astrodome station were given the following heat safety trainings in the summer of 2016: “Heat Stress Symptoms” (June 24), “Tips for Working In the Heat” (July 5), “Heat Stress and Hydration (July 6), “Stay Healthy in the Heat” (July 9), “Heat Related Illnesses” (July 11), “Heat Stress – Do’s and Don’ts” (August 4), “Beat the Heat” (August 9), and “Heat Related Illness and Medication” (September 20).