This is a very interesting AND disappointing decision by the commission. They accepted a PPE Hazard Assessment done at a distribution center in AR for a facility in TX. The business argued that the 100+ distribution centers around the country are identical with identical job functions. The commission, although they state otherwise, appears to be saying that since there was an “absence” of injuries in any substantial numbers there was not enough data to make the employer aware of the presence of hazards!!!! At least that is how I read this. This sets us back a bit, as we routinely identify hazards at facilities that require PPE and the facility will try and argue that no one has suffered an injury from said hazard “yet”. I always thought the purpose of PPE “HAZARD” assessment was to identify “hazards” and not injuries. Granted using injury data can point us in the right direction, but IN NO WAY should a “hazard(s) assessment” be limited to an injury log analysis. Anyway, here is the OSHRC decision…
In 2008, OSHA inspected a Distribution Center in Texas, one of approximately 120 such centers operated by the company nationwide. As a result, OSHA issued a four-item citation, alleging serious violations of four provisions of the general industry personal protective equipment (“PPE”) standard—29 C.F.R. § 1910.132(d)(1) (requiring a PPE hazard assessment); 29 C.F.R. § 1910.133(a)(1) (requiring eye and face PPE); 29 C.F.R. § 1910.136(a) (requiring foot PPE); and 29 C.F.R. § 1910.138(a) (requiring hand PPE). OSHA proposed a single grouped penalty of $1,700 for the four items.
Following a hearing, Administrative Law Judge Patrick B. Augustine affirmed the two items related to the hazard assessment and eye and face PPE (Items 1a and 1b), vacated the two items related to foot and hand PPE (Items 1c and 1d), and assessed the $1,700 proposed penalty. Both parties filed petitions for review, and all four citation items are at issue before us. For the reasons that follow, we affirm Item 1a, vacate Items 1b, 1c, and 1d, and assess the $1,700 penalty.
DISCUSSION
I. Serious Citation 1, Item 1a – PPE Hazard Assessment
The cited provision states that
“[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of [PPE].” 29 C.F.R. § 1910.132(d)(1)
The Secretary alleges that facility violated this provision by failing to physically examine the Center to assess whether hazards necessitating PPE were present. The business claims that it complied with the cited provision by performing a PPE hazard assessment at one of its other distribution centers, located in Arkansas. According to the business, this served as a “global” assessment for each of it’s distribution centers nationwide.
The judge rejected this argument, concluding that the plain language of § 1910.132(d)(1), its preamble, and the provision’s non-mandatory Appendix B, all support the Secretary’s reading of the standard as requiring a hazard assessment at each particular workplace. He also found that the Arkansas Center assessment did not constitute an assessment of the Texas Center because the business failed to verify that work conditions at Texas center were equivalent to those at the Arkansas facility. The judge reasoned that while business’s reliance on the AR Center assessment assumed physical uniformity among all distribution centers, the standard addresses work conditions, not simply workplace layout. For the following reasons, we agree with the judge and affirm this citation item.
On review, the business first argues that because OSHA intended the cited standard to be performance-oriented, employers have the discretion to comply by using a global hazard assessment. See Personal Protective Equipment for General Industry; Revisions (“PPE Revisions”), 59 Fed. Reg. 16,334, 16,336 (Apr. 6, 1994) (“Paragraph (d) of [§ 1910.132] is [a] … performance-oriented provision which simply requires employers to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed.”). The Secretary responds that while the PPE selection portion of the standard is performance-oriented, the hazard assessment requirement is not, and the phrase “assess the workplace” in the provision plainly means that the employer must perform an on-site, individualized assessment of the subject worksite, thus precluding use of a “global assessment.”
Section 1910.132(d)(1) is silent regarding the method an employer must use to assess its workplace for hazards, but the preamble indicates that the assessment must take into account the conditions specific to each worksite:[A] hazard assessment . . . produces the information needed to select the appropriate PPE for the hazards present or likely to be present at particular workplaces. The Agency believes that the employer will be capable of determining and evaluating the hazards of a particular workplace.
[T]he Agency has determined that employers can adequately verify compliance with § 1910.132(d) of the final rule through a written certification which identifies the workplace evaluated …
According to the business, the Secretary has failed to make this showing on two grounds.
First, the company claims that the testimony of its Logistics Division Safety and Environmental Director (“Safety Director”), whose office monitors injuries and illnesses for the distribution centers nationwide, establishes that the “design and operations” of the two Centers are similar. Specifically, the business points to the Safety Director’s response to the question, “from your observations of both [the AR and TX] Distribution Centers, from your personal observations, are the order [filler] functions identical?” He responded, “[y]es, they are,” and indicated that the functions and job requirements identified in the citation are the same and involve the same equipment. But the Safety Director subsequently testified that he had not been to the TX Center prior to the inspection. We find, therefore, that he had not determined from personal observation that the conditions at TX were the same as those at AR as of the relevant period.
Second, the business contends that the document it refers to as the “[AR] Center assessment”— which found, among other things, that AR Center box-cutter employees needed PPE—was made accessible to all distribution centers via the company’s intranet. The business argues that the applicability of this document to TX is corroborated by the fact that TX management testified that they understood the intranet document to represent corporate policy and that PPE was, in fact, provided to box-cutter employees. However, this does not mean that either corporate or TX management had verified that the conditions at the TX center were equivalent to those at AR. Moreover, as the business’s own Safety Director acknowledged, “process or equipment changes” can cause “the circumstances or conditions at . . . distribution centers [to] differ in some way from AR[.]” Despite this potential for difference, the record shows that the business never verified the equivalency of conditions between the two facilities. The TX general manager testified that prior to the OSHA inspection, neither he nor his subordinates had any communications with anyone at the corporate level about a hazard assessment at the TX Center. In addition, the general manager identified the “asset protection manager” as the only official at the TX Center qualified to perform a hazard assessment, and that manager had no involvement with the AR Center assessment.
Finally, we find the Secretary has shown that the business did not otherwise conduct a hazard assessment of the TX Center. Although the business asserts that its “asset protection managers” frequently conduct physical inspections of its workplaces and discuss safety issues with employees, the company does not allege that any of these officials specifically assessed the TX Center for PPE hazards. In addition, the TX general manager’s testimony shows that: (1) he does not consider himself qualified to perform a PPE hazard assessment; (2) neither he nor his staff conducted a comprehensive assessment at the TX Center; and (3) he was unaware of any other company official having conducted one.
In sum, the Secretary has shown that the AR Center assessment was insufficient to establish compliance with the cited standard at the TX Center because the business never verified that conditions at TX were equivalent to those at AR, and the business did not otherwise conduct a hazard assessment of the TX Center. Accordingly, we find that the business failed to comply with § 1910.132(d)(1) and affirm Item 1a.
II. Serious Citation 1, Item 1b – Eye/Face PPE
The cited provision states that “[t]he employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards . . . .” 29 C.F.R. § 1910.133(a)(1). Under this citation item, the Secretary alleges that the business failed to provide PPE to protect employees who work as “order fillers” at the TX Center from eye/face hazards. Order fillers label merchandise and unload it from wooden pallets stacked on multi-level shelving systems (“modules”). These employees work 10-hour shifts separating the contents of the pallets onto conveyer belts and ultimately into boxes, and then placing the emptied pallets in a return area.
According to the compliance officer, order fillers are exposed to eye hazards from wood chips and debris. This debris, she explained, originates from damaged pallets as they slide forward within the module system. The debris then falls through metal grating onto lower levels within the modules where order fillers might be working. In addition, the compliance officer testified that pallets stacked higher than eye-level on the third level of the module system present the possibility of objects falling off of them and striking order fillers in the eyes and/or face. She also stated that the tops of the pallets are covered in dust, which she determined could get into order fillers’ eyes.
To establish the applicability of a PPE standard that, by its terms, applies only where a hazard is present, the Secretary’s burden includes demonstrating that there is a significant risk of harm and that the employer had actual knowledge of a need for protective equipment, or that a reasonable person familiar with the circumstances surrounding the hazardous condition, including any facts unique to the particular industry, would recognize a hazard requiring the use of PPE.
In affirming this citation item, the judge concluded that despite what he characterized as a low incidence of four eye/face injuries at TX, the severity of potential harm was sufficient to give the business constructive notice of a hazard requiring eye/face protection. In reaching this conclusion, the judge cited Commission precedent for the proposition that “the eye is an especially delicate organ and . . . any foreign material in the eye presents the potential for injury.” He also credited the compliance officer’s testimony that employers in the business’s industry “h[ad] a blanket policy of [requiring] safety glasses … .” Thus, the judge concluded that the cited standard was applicable to the business and was violated. We vacate this item for the following reasons.
With regard to injury rate, the business argues that the eye/face injuries relied upon by the judge were “infrequent and incidental,” and thus a reasonable person would not have recognized a hazard requiring the use of eye/face protection. Both the number of injuries and number of workers exposed are in dispute on review. The Secretary argues that the business’s injury logs reflect “at least seven” pertinent eye/face injuries from 2006 to early 2008, among an order filler population at the TX Center of approximately 60 workers. Using these numbers, the Secretary calculates the eye/face injury rate as between 11⅔ percent and 17½ percent. The business asserts that the injury rate was .32 percent.
The Secretary argues that the business’s figure is flawed because it is based on a comparison between total reported injuries at the TX Center and total employee-hours worked, rather than order filler injuries and total order filler hours worked. However, the Secretary’s figures are also questionable because they do not account for the number of hours worked and, as discussed below, they are based in part on non-pertinent incidents. Neither the Secretary, who has the burden of proof on this issue, nor the company, has provided expert or other relevant evidence describing accepted injury rate calculation methodologies. In the absence of such evidence, we find that the record does not establish the injury rate claimed by either the Secretary or the business. Accordingly, our assessment of the record is limited to consideration of how many pertinent injuries occurred over an approximately two-year period in light of an estimate of the total number of order fillers. While the Secretary has alleged that there were seven such injuries, we find that he has failed to establish that four of those seven incidents are pertinent. The business’s Safety Director offered unrebutted testimony that three of these incidents were wholly unrelated to order fillers. With regard to a fourth incident, the Secretary acknowledges that the injury records are too imprecise in their description of the employee’s work or how the injury occurred to determine whether the incident involved an order filler. Consequently, we find that the Secretary has established the existence of only three pertinent incidents.
We agree with the business that these incidents furnish an insufficient basis for finding that the company had actual or constructive notice of the alleged hazards. With only three eye/face incidents in an order filler population of approximately 60 workers over a period of more than two years — one of which appears to have resulted in a very slight injury, and two of which lack information about the extent of injury — we cannot find that the evidence is sufficient to show that the business had actual knowledge of a hazard requiring eye/face protection. Indeed, the evidence in the instant case is no more supportive of the Secretary’s position than the evidence was in GM Parts, in which the Commission rejected the Secretary’s claim that actual knowledge had been established by what was found to be a very low incidence of injuries. In that case, the injuries sustained by employees at two separate auto parts warehouses were, for one warehouse, five out of 150 employees over a 2½-year period, and for the other warehouse, 12 out of 25 employees over an eight-year period. Similarly here, the record is insufficient to establish that the business had actual knowledge of a hazard warranting the use of eye/face protection.
The evidence regarding injury rate is also insufficient to establish that the business had constructive notice of a hazard requiring the use of eye/face protection. Absent sufficient evidence establishing a reliable injury rate, there is no basis to conclude here that a reasonably prudent employer should have known that employees were exposed to eye/face injuries. The remaining evidence is equally unpersuasive in establishing that the business should have recognized the need for eye/face protection. We agree with the business that recognition of a hazard requiring PPE cannot be based on industry practice here because there is insufficient evidence of industry custom. Although the compliance officer testified that in her experience employers in the business’s industry “[t]ypically… have a blanket policy of [requiring the use of] safety glasses,” the Secretary failed to establish that the compliance officer was knowledgeable about the business’s industry. Moreover, the compliance officer’s testimony in this regard was contradicted by the business’s Safety Director, who testified that the company’s decision not to require the use of eye/face protection was in line with the rest of its industry. As a consequence, the Secretary failed to show that industry practice required the use of eye/face protection. Therefore, we find that neither industry custom nor injury rate provides a basis here for finding that a reasonable person familiar with the circumstances in the industry would have recognized a hazard requiring the use of eye/face protection at the TX Center.
In sum, we conclude the Secretary has failed to establish the applicability of the cited provision because he did not show that the business had actual or constructive notice of an eye/face hazard for which PPE would be necessary. Accordingly, we vacate Item 1b.
III. Serious Citation 1, Item 1c – Foot PPE
The cited provision states that
“[t]he employer shall ensure that each affected employee uses protective footwear when working in areas where there is a danger of foot injuries . . . .” 29 C.F.R. § 1910.136(a).
Under this citation item, the Secretary alleges that the business failed to provide PPE to protect its order filler employees from hazards to their feet. The compliance officer testified that while conducting the inspection, she observed numerous damaged pallets, which were splintered and/or had exposed nails, and she became aware that order fillers were trained to “kick up” pallets once they were emptied—this required the employee to position the empty pallet partly over the edge of the module shelf, then step on the pallet so that it would stand up on its edge. The business states that this practice allowed order fillers to grab the pallets without having to repeatedly bend over to pick them up, thus minimizing potential back strain. According to the compliance officer, the pallets could splinter and injure an employee’s feet while being kicked up, or an employee’s feet could be injured by heavy objects dropping on them. The judge identified six pertinent foot injuries among order fillers at the TX Center but vacated this item based on what he found was a lack of evidence indicating the requisite degree of harm. The judge also determined that the evidence of industry custom with regard to foot protection was “at best, inconclusive.” For the following reasons, we affirm the judge.
On review, the Secretary argues that the business had actual knowledge of hazards requiring foot protection because its managers knew first-hand of injuries from having reviewed the company’s injury records. The Secretary also argues that the foot injury rate at the TX Center was sufficient to have provided a reasonable person with notice of a hazard requiring foot protection. Specifically, the Secretary asserts that, among approximately 60 order fillers, there were a “minimum of eight” foot injuries, with a resulting injury rate of between 13⅓ percent and 20 percent. The business acknowledges that foot injuries have occurred at the TX Center but asserts that they have been too infrequent to indicate the presence of a hazard, and also contends that the Secretary failed to establish industry custom. As noted above, we are unable to rely on the parties’ calculated injury rates, but we conclude that the evidence only establishes three of the injuries claimed by the Secretary, which we find is too few to have provided the business with notice of a hazard.
With respect to four of the injuries identified by the Secretary, the injury records show that they are not pertinent here: the incidents involving Employee Nos. C6200294 and C7235096 did not involve the order filler position; those involving Employee Nos. C6219338 and C7224578 involved leg injuries but, due to a lack of detail about the incidents, the records do not demonstrate that there was a potential for foot injury. Consequently, the Secretary has established three relevant foot injuries among these employees during this period. As with the eye/face PPE item, we conclude that, in the circumstances of this case, there was an insufficient number of injuries to establish either actual knowledge of a hazard requiring foot protection, or that a reasonable person would have recognized such a hazard.
The Secretary argues that “where the evidence establishes… a hazard, a low injury rate does not negate it,” citing Hamilton Fixture, in which the Commission recognized that a “ ‘low number of recorded injuries has probative value regarding the [absence] of a hazard, but does not rebut… objective evidence of exposure to a hazard.’ ” But Hamilton is inapposite because we find that, regardless whether a hazard existed here, the number of injuries is so low that the business lacked the requisite notice of a hazard.
In addition, the Secretary has not shown that the business had the requisite notice through industry custom evidence. The compliance officer testified that she had “normally” seen foot protection in “warehouse-type” worksites where pallets were used, but also stated that she had only been to “a few” such facilities. The only other evidence of industry custom is the testimony of the business’s Safety Director, who denied that protective footwear was customary in its industry, and said that the business had knowledge, both by sharing information with a trade association and by participating in academic research, that it was not customary in the business’s industry to provide such PPE. Thus, we find that the weight of the evidence on this issue is contrary to the Secretary’s position.
Accordingly, we conclude that the Secretary has failed to establish a violation of § 1910.136(a), and we vacate Item 1c.
IV. Serious Citation 1, Item 1d – Hand PPE
The cited provision states that
“[e]mployers shall select and require employees to use appropriate hand protection when employees’ hands are exposed to hazards … .” 29 C.F.R. § 1910.138(a).
Under this citation item, the Secretary alleges that the business failed to provide PPE to protect its order filler employees from hazards to their hands. The compliance officer testified that she believed splinters from damaged pallets posed potential hand hazards to order fillers, who were required to handle the pallets with their bare hands while placing them in the return area, as well as while removing jammed pallets from the shelving modules. The judge vacated this item, finding that the Secretary failed to establish industry custom requiring the use of hand protection in warehouse facilities that use wood pallets, and that the record indicates that hand injuries were both fewer in number and of lesser severity than foot injuries. We affirm the judge.
On review, the parties make essentially the same arguments that they made with regard to the foot PPE item. The Secretary argues that the business had actual knowledge of hazards requiring hand protection and that the hand injury rate was sufficient to have provided a reasonable person with notice of such hazards. The Secretary asserts that the injury logs reflect “a minimum of two” relevant hand injuries, resulting in a hand injury rate of between 3⅓ and 5 percent. The business acknowledges that hand injuries have occurred at the TX Center, but maintains that it lacked actual knowledge of hazards requiring hand protection, and that a reasonable person would not have had notice of such hazards, claiming the hand injury rate was only .32 percent.
In reviewing the evidence which, as previously noted, excludes the parties’ injury rate calculations, we find that the Secretary has only established that one of the alleged hand injuries is pertinent. The other, involving Employee No. C8220322, has not been established as pertinent as the Safety Director’s unrebutted testimony establishes that it did not involve an order filler. We determine that a single hand injury is insufficient to support a conclusion that the business recognized a hazard requiring the use of PPE. In addition, the Secretary has not shown that the business had the requisite notice through industry custom evidence, as the compliance officer conceded that she saw a lack of hand protection in other facilities using wooden pallets, and the business’s Safety Director testified to the same observation. In sum, the Secretary’s evidence is inadequate to establish actual or constructive notice of a hand hazard for which PPE would be necessary. As a result, we conclude that the Secretary has failed to establish a violation of § 1910.138(a), and we vacate Item 1d.
V. Characterization and Penalty
The judge characterized both of the violations he affirmed as serious based upon the duration of exposure and number of employees exposed. He also assessed the Secretary’s proposed penalty of $1,700 for the two grouped items. On review, the business does not challenge the characterization or penalty for the hazard assessment violation that we affirm, and we find no reason to disturb the judge’s findings concerning the penalty amount. Accordingly, we affirm Item 1a as serious and assess the $1,700 proposed penalty.
We affirm Serious Citation 1, Item 1a, and assess a penalty of $1,700. We vacate Items 1b, 1c, and 1d.
This case raises the important issue with regard to § 1910.132(d)(1) of whether an employer must conduct separate PPE hazard assessments of each facility it owns when it claims that an assessment conducted of another virtually identical facility serves as the assessment for the facility at issue. See 29 C.F.R. § 1910.132(d)(1). The Secretary claims that an employer must conduct separate PPE hazard assessments because an employer must perform an on-site, individual assessment of the subject worksite, thus precluding use of a “global assessment.” I find that the standard’s requirement that an employer “assess the workplace” does not necessitate a site-specific, walk-through survey to determine if hazards are present; that any construction of the standard by the Secretary to the contrary is unreasonable; and that the Secretary has failed to prove the business’s noncompliance with the cited standard. Rather, the business complied with the cited provision by conducting a global assessment that met the standard’s requirements and which served as the workplace assessment for the New Braunfels facility. For these reasons, I dissent from my colleagues on the issue presented in Serious Citation 1, Item 1a regarding the asserted PPE hazard assessment violation.
DISCUSSION
Section 1910.132(d)(1) states that “[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of [PPE].” 29 C.F.R. § 1910.132(d)(1). The preamble to the PPE final rule adds:
OSHA believes that a hazard assessment is an important element of a PPE program because it produces the information needed to select the appropriate PPE for the hazards present or likely to be present at particular workplaces. The Agency believes that the employer will be capable of determining and evaluating the hazards of a particular workplace.
PPE for General Industry, Final Rule, Revisions, 59 Fed. Reg. 16,334, 16,336 (Apr. 6, 1994) (“PPE Revisions”). The PPE Revisions also contain a non-mandatory Appendix B that provides examples of compliant hazard assessment procedures. PPE Revisions, 59 Fed. Reg. at 16,336. Those procedures may include “a walk-through survey of the areas in question.” Id.; App’x B to Subpart I of Part 1910 (“PPE Standards”), 29 C.F.R. § 1910.132, et seq.
While Appendix B suggests that an employer conduct a “walk-through survey of the areas in question,” OSHA placed this language in a non-mandatory appendix rather than in the standard itself, which is consistent with the agency’s decision to promulgate § 1910.132(d)(1) as a performance standard. See 59 Fed. Reg. at 16,336 (stating that § 1910.132(d)(1) is “a performance-oriented provision which simply requires employers to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed.”). A performance standard differs from a specification standard in that, rather than directing specific measures to be taken whenever a hazard identified by the Secretary is present, it allows the employer, within the standard’s general guidelines, flexibility to identify the hazards particular to its own working conditions and determine the steps necessary to abate them. In other words, performance standards state the required result without specifically mandating how that result is to be achieved.
Because the phrase “assess the workplace” in § 1910.132(d)(1) does not state with specificity what an employer must do to comply with the standard, we are to apply the well-established principle that a broadly-worded regulation may be given meaning in a particular situation by reference to objective criteria, including the knowledge and perception of reasonable persons knowledgeable about the industry.
Based upon the text of the standard and governing precedent, I find that the Secretary improperly attempts to transform § 1910.132(d)(1) from a performance-oriented standard into a specification standard and has failed to prove the business’s noncompliance with the cited standard. Section 1910.132(d)(1)’s requirement to “assess the workplace” does not specify how the assessment is to be accomplished, and I conclude that “assess the workplace” does not equate with “conduct a site-specific, walk-through survey.” The Secretary’s reading does not sensibly conform to the purpose and wording of the standard, ignores the fact that the only reference to a walk-through survey is in the non-mandatory part of the standard, and fails to give the business fair notice that a site-specific, walk-through survey was required to comply with it.
The record shows the relevant facts. The TX facility at which the citation was issued is one of approximately 120 distribution centers owned by the business where approximately 33,000 employees work. As the judge noted, the TX facility is virtually identical in physical layout and operations to other the business distribution centers, including one located in Arkansas. Employees working as order fillers perform the same job functions, use the same equipment, and work in virtually identical workspaces in the 120 distribution centers owned by the business across the country. These order fillers are responsible for labeling and unloading freight, merchandise, and materials from wood pallets. The business has a safety department that develops safety policies and procedures for all distribution centers to follow. The asset protection regional teams and managers are responsible for carrying out the business’s safety policies and procedures at each distribution center. Each distribution center, including TX, has a PPE hazard assessment and safety program, which is developed in consideration of industry standards, agency guidance, and interpretative letters on the necessity of PPE.
In conducting the PPE hazard assessment at issue, the business’s asset protection managers reviewed the job functions and working conditions of order fillers (and other positions working in its facilities). In developing the assessment for its distribution centers, the business concluded that there are two items of PPE required for employees using box knives, but no PPE required for the order filler employees at issue in this case. the business trained new hires and current employees, such as those required to use box knives, on the use of any required PPE. However, the PPE hazard assessment concluded that no hazards existed that required order filler employees to wear eye or face, foot, or hand PPE.
In vacating the other items at issue (involving eye and face, foot, and hand PPE for order fillers), my colleagues and I have concluded today that the business’s assessment of a lack of need for eye or face, foot, or hand PPE was correct based on the record evidence and the business’s reference to objective criteria, including industry custom and practice. Thus, the record establishes that the business met § 1910.132(d)(1)’s requirement of identifying the specific job tasks necessitating use of PPE. Despite the business’s accurate assessment, the Secretary cites the business for reaching this conclusion utilizing a global assessment to determine the appropriateness of PPE at the TX facility. However, there is nothing in the standard that requires each facility to conduct a site-specific, walk-through survey to determine if hazards are present. In addition, the Secretary has failed to show that the business’s global assessment as applied to the TX facility was unreasonable under the circumstances. Rather, I find it was a reasonable exercise of discretion based on the business’s awareness of hazards in its workplace to select the appropriate PPE for the work being performed at all its distribution centers, including the TX facility. See PPE Revisions, 59 Fed. Reg. at 16,336 (granting discretion to employers “to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed.”).
Given that no eye or face, foot, or hand PPE was necessary for the order fillers, I do not see how the business’s assessment can be deemed unreasonable. See PPE Revisions, 59 Fed. Reg. at 16,336 (“OSHA can best determine whether the employer conducted an adequate hazard assessment by inspecting the areas where PPE is required.”). Further, if there are any differences between the TX facility and the distribution center used as the benchmark for the global assessment, the record does not identify them as the Secretary offered no evidence to contradict the business’s evidence that all 120 distribution centers are “cookie cutter” and “virtually identical,” or, likewise, the business’s evidence that the operations and order fillers’ job duties are “identical.”
As the business’s Logistics Safety and Environmental Director (“Safety Director”) repeatedly and consistently testified, based on his own observation, the order fillers’ jobs and tasks “are the same,” whether they perform their duties in Texas, Arkansas, Maine,” and the hazards they face, which were considered for the appropriateness of PPE, “are the same,” right “down to the same pallets.” Further, the Safety Director testified that the business intended for the global PPE hazard assessment conducted at the AR facility to apply to its other “cookie cutter” distribution centers, including the one at TX.
My colleagues disregard the ample record evidence that the business intended the global assessment to include other “cookie cutter” facilities, including the one at TX. Instead, they take out of context the Safety Director’s testimony that if there were “process or equipment changes,” which would cause “the circumstances or conditions at . . . distribution centers [to] differ in some way from Arkansas,” they would be considered by the company. My colleagues somehow construe this testimony to mean that because the business acknowledged that potential, but unidentified, differences between two “cookie cutter” facilities would be considered, the Secretary has proven noncompliance with the cited standard. However, in remaining mindful of who has the burden to show noncompliance, I conclude that the Secretary failed to meet his burden to show that the global assessment conducted by the business was unreasonable and insufficient to identify hazards at the TX facility. Therefore, I would vacate Serious Citation 1, Item 1a.
CLICK HERE to see the full decision