This case is before the Commission on remand from the United States Court of Appeals for the Second Circuit. Administrative Law Judge Keith E. Bell affirmed a citation issued by the Occupational Safety and Health Administration, alleging that pallets of merchandise kept on racks at a distribution center were “stored in tiers” but not “blocked . . . so that they [were] stable and secure against sliding or collapse,” as required by 29 C.F.R. § 1910.176(b). The Commission vacated the citation on review, concluding that the cited provision did not apply because “stored in tiers,” as used in § 1910.176(b), is limited “to articles stacked one on top of another with nothing in between.”
On appeal, the Second Circuit reversed the Commission’s decision, concluding that “the plain language of [§ 1910.176(b)] appl[ies] to material arranged one above another vertically, including on shelves, not just materials stacked directly on top of another.” The court remanded the case for consideration of whether the Secretary established the remaining elements of the alleged violation.
For the following reasons, we conclude the Secretary has established that the facility failed to comply with § 1910.176(b), that it’s employees were exposed to the violative condition, and that the company had knowledge of that condition. Accordingly, we affirm the citation.