The OSHRC has vacated four (4) heat-related OSHA citations against the United States Post Office. This decision was based ON LEGAL matters regarding the Feasibility of Abatement of the Hazard. ALL parties agreed to the fact that HEAT CAN BE A HAZARD, but when OSHA issues a GDC Citation, it must provide feasible abatement measures. The ALJ and OSHRC agreed that the abatement measures were not feasible. This decision is one that ALL SAFETY PROFESSIONALS should read as it breaks down the “feasibility” argument of controlling a recognized hazard really well. It is a long read but well worth it. I have removed all the legal references so it is easier to read. Here is the basis of the citations and why they were VACATED.
Between September 2016 and January 2017, OSHA issued five citations to the United States Postal Service, each alleging that it committed a repeat violation of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1), by exposing employees to an “excessive heat” hazard. These citations relate to medical incidents involving a total of seven letter carriers working in five different cities during the summer of 2016. In each incident, the letter carrier began feeling ill while delivering mail and subsequently was treated at a hospital or urgent care clinic. With one exception, the Secretary alleges that each carrier became ill due to excessive heat. The Postal Service contested each citation, resulting in five separate cases, each involving the occurrence of an alleged violation in the following cities
- San Antonio, Texas (Docket No. 16-1713);
- Des Moines, Iowa (Docket No. 16-1813);
- Benton, Arkansas (Docket No. 16-1872);
- Houston, Texas (Docket No. 17-0023); and
- Martinsburg, West Virginia (Docket No. 17-0279)
All five (5) 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.
We hereby consolidate the San Antonio, Benton, Houston, and Martinsburg cases (Docket Nos. 16-1713, 16-1872, 17-0023, 17-0279) because they involve the same parties and overlapping legal and factual issues, and our decision in each case rests on the same rationale with the same outcome.
We vacate all four (4) GDC citations for the reasons discussed below.
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.” 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.”
The Secretary also must prove that the employer “knew, or with the exercise of reasonable diligence could have known, of the violative conditions.”
Here, the judge vacated the four citations at issue on the same grounds—the Secretary failed to prove
(1) that the workplace conditions posed a hazard, and
(2) that feasible and effective means were available to abate the hazard.
We conclude that the SECRETARY HAS PROVEN THE EXISTENCE OF A HAZARD but failed to establish a feasible and effective means of abatement.
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. 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.”
As stated above, the Secretary alleges that Postal Service carriers were exposed to the hazard of “excessive heat,” which he says is “also referred to as heat stress.” The workplace conditions that posed this hazard, the Secretary contends, were the environmental and metabolic heat conditions that existed at the time these carriers worked their mail routes on the dates identified in the citations. The Secretary explains that the environmental heat conditions included the temperature and humidity levels, while the metabolic heat conditions included the distances the carriers walked and the weight of the mail loads they carried (“metabolic heat” refers to heat produced by the human body). Thus, to prove that an “excessive heat” hazard was present as alleged, the Secretary must show that the environmental and metabolic heat conditions that existed during the incidents involving the carriers subjected them to a significant risk of experiencing a heat-related illness or injury.
The judge explained her conclusion that the Secretary failed to establish the existence of an excessive heat hazard in a similar manner in each case, emphasizing that the Secretary did not prove that any of the incidents at issue were caused by excessive heat. Specifically, the judge found that one of the Secretary’s expert witnesses, Dr. Aaron Tustin, who opined that all but one of the carriers suffered an illness that was caused at least in part by the heat, and one of the Postal Service’s expert witnesses, Dr. Shirly Conibear, who opined that none of them experienced a heat-related illness, were equally credible. At the same time, the judge found that the “certitude” each expert expressed was at odds with their mutually consistent testimony that the symptoms of heat-related illness often mimic those of other conditions, and she accorded “no weight” to either’s opinion regarding the causes of the incidents. The judge acknowledged that it was not “essential” for the Secretary to prove the cause of the incidents but found this lack of proof weighed against the Secretary’s case.
Finally, she found Tustin’s testimony that the heat conditions during each incident were hazardous unconvincing, noting that his opinion was based on a National Weather Service (NWS) chart that she found the Secretary did not prove has a scientific basis. The judge also noted that Tustin was unable to quantify the likelihood of a heat-related illness under any particular heat conditions. Although another expert witness for the Secretary, Thomas Bernard, likewise opined that the heat conditions during each incident were hazardous, the judge did not explain why his testimony did not support the existence of a hazard.
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.
In response, the Postal Service argues that the judge properly rejected Tustin’s testimony given his reliance on the NWS chart, and that Bernard’s opinion deserves no weight for the same reason. It further asserts that Tustin based his opinion on unreliable hearsay reports of heat-related incidents in Postal Service records and that Bernard premised his opinion on an incorrect presumption that all the citation incidents were caused by “a heat hazard” rather than preexisting health conditions.
Finally, the Postal Service relies on testimony from its expert econometrician, Joshua Gotkin, who stated that it is impossible to quantify a risk without accounting for all instances of exposure, which it contends Tustin did not do, and argues based on Gotkin’s testimony that even if all the heat-related incidents reported by carriers in recent years were assumed to have actually been heat-related, they would reflect that the odds of any given carrier on any given workday experiencing a heat-related illness “are so small that . . . [they] are really near zero . . . .”
We agree with the Secretary that the judge erred in concluding the workplace conditions present at the time of each cited incident were not shown to be hazardous. Indeed, neither of the Secretary’s expert witnesses relied exclusively on the NWS chart as support for their opinions that the conditions posed a hazard to the carriers identified in the citations. Tustin said that he examined the environmental and metabolic heat conditions present in each incident—primarily, the heat indexes and the carrier activity levels (e.g., distances walked and weight carried)—and believed that they were hazardous. When repeatedly asked what he based his opinion on, he consistently responded that it was the multiple studies on heat-related illnesses he had personally conducted, including a “systematic review” and “meta-analysis” of related published medical literature, as well as his general review of scientific papers on the topic from other authors. His mention of the NWS chart was merely to note that its heat index risk categories were “consistent” with his research. Nor did Tustin say that he was relying on the heatrelated incident reports the Postal Service argues are hearsay and unreliable; he said that the number of such reports rose as the temperatures rose in a manner that was “completely consistent” with his research, but did not say he was basing his opinion that the conditions were hazardous on those reports.
We find that the judge also erred in faulting Tustin for failing to quantify the percentage of employees that will experience a heat-related illness under any particular conditions, figures that Tustin noted he was unaware of any studies calculating. It is well-established that the Secretary is not required to determine the mathematical probability of a workplace condition causing harm to show that it poses a hazard.
As for Bernard, he similarly testified that he examined the heat conditions affecting the carriers involved in the cited incidents—like Tustin, he emphasized the heat indexes in particular—and believed that they were hazardous. Although Bernard referenced the heat index risk categories in an OSHA chart that is based on the NWS chart and agreed with the risk levels it assigns to heat index ranges, he never said that he believed the conditions were hazardous simply because of the OSHA chart. In the absence of any claim by Bernard to the contrary, we find that his opinion was based on his extensive expertise on heat stress, and not the risk categories in the OSHA chart. Nor did Bernard say that he believed the conditions were hazardous because the carriers experienced heat-related illnesses, as the Postal Service claims. In short, both Tustin and Bernard—neither of whom the Postal Service disputes were qualified to testify as heat stress experts—provided direct testimony that the heat conditions affecting the carriers during the cited incidents were hazardous, and we find no valid grounds for discounting either expert’s opinion.
The Postal Service presented two of its own heat stress experts, Conibear and Rodman Harvey, but neither challenged the consistent opinions of the Secretary’s experts that the cited conditions were hazardous. In fact, Harvey essentially agreed that the heat conditions posed a hazard that an employer should take efforts to mitigate, stating in a report prepared for the Postal Service that: “[b]ecause of [the Postal Service’s abatement] efforts, the hazard presented by the ambient environmental conditions would have been mitigated such that serious heat illness would no longer be likely or the risk of them significant.” In other words, Harvey believed the conditions were hazardous but that the Postal Service was taking sufficient steps to prevent them from being likely to cause a serious heat illness. Whether an employer has taken sufficient measures to address the cited hazard, however, relates to the abatement element of an alleged general duty clause violation, which we address separately below. Put simply, the issue here is only whether the Secretary has proven that the workplace conditions present at the time of the alleged violations posed a hazard, and Harvey’s statement supports that showing.
Finally, we reject the Postal Service’s claim that Gotkin’s calculations rebut the consistent opinions of three heat stress experts (Tustin, Bernard, and Harvey) that the cited workplace conditions were hazardous. Gotkin claimed that the odds of a heat stress incident occurring on what he called a “letter carrier day” in a year or during the months of May to September were “extremely small” and not “statistically significant.” We are not persuaded that his testimony provides evidence that the cited conditions were not hazardous.
First, Gotkin provided no opinion on the relevant question at issue—whether the particular environmental and metabolic heat conditions present on the specified dates posed a significant risk of harm. Sturgill, 27 BNA OSHC at 1811. Gotkin did not opine, for example, on the odds of a carrier experiencing a heat-related illness when exposed to similar heat indexes while engaged in similar physical activity levels. He admitted having the ability to use available data to calculate such odds, but he did not do so. Instead, Gotkin simply estimated the odds of a carrier experiencing a heat-related illness under any environmental and metabolic conditions, regardless of whether the carrier worked in Alaska or on a rural driving route spent entirely in an air-conditioned van. In short, even if we assume based on Gotkin’s opaque testimony that the probability of any carrier in the nation experiencing a heat-related illness over a twelve or five-month period was low, that does not mean that the probability of a carrier experiencing such an illness under the specific conditions at issue here was also low.
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.
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.
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.” “Feasible” means both “economically and technologically capable of being done.” A measure is not economically feasible if it would “threaten the economic viability of the employer.” To establish a measure’s utility, the Secretary must show that it would “eliminate or materially reduce the hazard.”
Here, the Secretary identified a number of abatement measures in the four citations at issue before us, as well as in his posthearing 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 heatrelated illnesses). 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
We agree with the Secretary that he did not allege that any of the proposed abatement measures would have been sufficient by themselves to abate the excessive heat hazard. Nowhere in his complaints, citations, or post-hearing briefs did the Secretary suggest that the abatement measures would each singlehandedly eliminate an excessive heat hazard. To the contrary, his complaints all allege that the Postal Service violated the general duty clause by failing to implement a “comprehensive program” to address the cited hazard that includes “all feasible means of abatement … .” And all but one of the citations at issue introduce the abatement measures by stating that “methods … include, but are not limited to, the following: [listing measures].” The Secretary’s post-hearing briefs all introduce the measures in a similar manner: “[T]he evidence shows that Respondent could have taken several steps to abate or materially reduce the hazard its employees faced. These steps include [list of proposed measures].” These simple and generic introductions do not mean that any one of the measures listed would by itself resolve the hazard, which would contradict the Secretary’s position in his complaints.
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. 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
To establish the abatement element in a case in which the measures are not proposed as alternatives, the Secretary must show that at least one of the proposed measures (or some combination) was not adequately implemented and would have been feasible and effective in materially reducing (or eliminating) the hazard.
On review, the Secretary broadly argues that he established the feasibility and efficacy of the abatement measures he proposed below, briefly naming a few. While he does not describe those proposals in detail, the Secretary specifically argued before the judge in each case that feasible and effective measures to abate the heat hazard include:
(1) work/rest cycles;
(2) emergency response plans and employee monitoring;
(3) analyzing Postal Service data on employee heat-related illnesses; and
(4) reducing employee time outdoors.
In three of the cases (Benton, Houston, and Martinsburg), the Secretary additionally argued in support of the use of air-conditioned vehicles, and in two of the cases (Houston and Martinsburg), the Secretary additionally addressed training employees on heat-related illnesses. Finally, in one case (San Antonio), the Secretary also discussed acclimatization.
Like the judge, we consider three of the Secretary’s proposed measures together—work/rest cycles, reducing time outdoors, and acclimatization—because they all address abating the hazard by limiting employee exposure, and the judge found that all three of these “time-based” measures were not shown to be economically feasible. We then discuss the remaining measures in turn.
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
The judge found that the Secretary failed to establish that these time-based measures were economically feasible because he failed to “provide an estimate of compliance costs or demonstrate a reasonable likelihood that such costs would not threaten the existence or competitive structure of the Postal Service.” Further, the judge concluded that paying for these measures would in fact threaten the Postal Service’s economic viability. In doing so, she cited testimony from Postal Service economist, Do Yeun Sammi Park, who the judge found was qualified to testify as an expert in economics with “specialized expertise in cost modeling,” in considering the costs associated with implementing these measures. Park provided several estimates of the annual labor cost the Postal Service would have to incur to adopt an acclimatization program and give carriers an additional fiveminute paid break, using different assumptions about the implementation of these measures. Her lowest estimate using an overtime rate, which she said was more “realistic” than using a “straighttime” rate, was that implementing these measures would cost about $100 million per year (about $50 million for each). Other evidence the judge relied on in concluding that the Postal Service could not afford this expense is the parties’ stipulation that the Postal Service experienced billions of dollars in net losses from 2016-2018. The judge also pointed to Postal Service Chief Financial Officer (CFO) Joseph Corbett’s testimony that the organization lacked the money to pay for these measures: “We don’t have sufficient funds to even pay our existing obligations. So, no, we do not have funds to pay [for those] additional obligations.”
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.
We agree with the Postal Service that the Secretary has failed to establish that any of his time-based abatement proposals—work/rest cycles, reduced time outdoors, and acclimatization—are economically feasible. As the judge noted, the Secretary has provided no estimates of the costs for any of these measures. Instead, the Secretary simply relies on Park’s testimony and claims that it would “cost as little as $100 million” to provide a five-minute daily break and to acclimate carriers who are off work for more than seven consecutive days, even though as the Postal Service points out, the Secretary has never claimed that abatement could be accomplished simply by giving carriers a single additional five-minute break, let alone shown that a single such break would be materially effective. In fact, the Secretary has never said how much rest time or reduced work hours would accomplish his “work/rest cycles” or “reducing time outdoors” proposals (he acknowledges on review that he does not suggest “any specific schedule”), but he elicited testimony from Tustin and Bernard that carriers might need to take fifteen to forty-five minute rest breaks every hour. In short, Park’s cost estimate does not even reflect the Secretary’s actual proposal.
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.
Even if we were to assume that two of these time-based measures could be accomplished by spending about $100 million annually, the Secretary has not shown that this cost would not threaten the Postal Service’s economic viability. The Secretary has never disputed that, at least on paper, the Postal Service did not have this money as of the time of the hearing. As noted, COO Williams said his “best guess” is that the Postal Service will “run out of cash” in 2024, at which point it would no longer be able to pay employees and suppliers; he said that additional spending on a heat-related abatement measure would increase the Postal Service’s losses and “accelerate[] the point in time in which the Postal Service could run out of operating cash flow to keep [the] organization going.”31 CFO Corbett similarly testified that the organization is projected to run out of “operating cash” in 2024, resulting in it not being able to fully pay employees and potentially beginning a “downward spiral.” While he found it “unlikely” that the Postal Service would completely “close up shop” at that point, he believed it would “certainly have to cut back on services, which would require cutting back on employees and cutting back on facilities, . . . irreparably damaging the brand and putting in danger our ability to fulfill the universal service obligation.” Like Williams, he said that paying for these abatement measures would “accelerate the day of reckoning . . . in terms of running out of cash.”
These claims are corroborated by a December 2018 report from the Task Force on the United States Postal System,32 which describes the Postal Service’s “financial burden” as a potential “existential threat” to its operations:
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.
The Secretary’s contention that budget shortfalls can be alleviated by simply raising prices or borrowing money to pay for additional expenses suffers from the same lack of evidentiary support. Although the Postal Service has the ability to take these steps, the Secretary has not shown that either would be economically advisable or ultimately result in additional funding. A June 2018 GAO report regarding the Postal Service’s projected capital spending, for example, states: “[E]ven if USPS raises rates, it may not see an increase in revenues . . . . [A] rate increase could lead to a decrease in volume that might offset additional revenue from the rate increase.” In its 2018 Annual Report to the SEC (Form 10-K), the Postal Service stated that it already attempts to set its prices for its “Competitive Services” at levels that will “maximize revenue.”
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 . . . .”
Given the spending tradeoff decisions that will likely already be necessary, the GAO report shows that diverting future projected spending could be counterproductive to the objective of maximizing employee safety while maintaining economic viability. The GAO report states that most of the Postal Service’s projected additional spending is to replace its aging delivery fleet and projected spending on facilities is mostly for the “rehabilitation and repair of existing facilities,” such as fixing “roofs or heating, ventilation, and air-conditioning.” Other projected spending includes the purchase of new information technology equipment, including “video conferencing systems intended to increase productivity and encourage collaboration,” as well as spending on cybersecurity and hardware. The record does not show that shifting any of these expenditures to the proposed abatement measures would better advance employee safety and the organization’s economic viability. For all of these reasons, we find that the Secretary has not proven that his proposed time-based abatement measures are economically feasible.
Technical Feasibility
In addition to finding the time-based measures economically infeasible, the judge found that they would likely be technically infeasible as well due to their impact on carrier work schedules. Citing COO Williams’s testimony, the judge observed that delivering the mail requires the nationwide coordination of a complex network of employees, facilities, and vehicles in a “24-hour clock” schedule, and “one snag could create a bullwhip effect.” In addition, the judge found that the Postal Service’s collective bargaining agreements (CBAs) with the carrier unions would pose “obstacles” to these time-based measures, such as their limitation on the number of employees who can work parttime and prohibition on the Postal Service making unilateral changes to hours or working conditions.
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.
In any event, we agree with the judge—whose findings the Postal Service echoes on review—that implementing any of these measures would create serious challenges for the Postal Service in coordinating its nationwide delivery network and complying with certain CBA provisions. To reduce carrier workloads and time spent outdoors during hot days as proposed, the record shows that the Postal Service would have to either slow or alter delivery schedules or make extra employees available to assist. Williams testified that slowing or altering delivery schedules in response to hot weather would prevent the Postal Service from delivering the mail on time and cause cascading backups in its complex transportation network: “Every step depends on the previous step. And if we change one, we change another. The one thing we can’t change is the transportation.” According to Williams, it takes months to adjust truck and plane schedules, and there is no “agile” way to shift those schedules in response to hot weather.
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 heatrelated illnesses.
In sum, we find that the Secretary has failed to establish that work/rest cycles, acclimatization, and reducing time outdoors are feasible abatement measures, economically and technically.
Emergency Response Plans and Monitoring
The Secretary described his “emergency response plans” and “employee monitoring” measures similarly in each case below. He alleged that the Postal Service’s procedures for discovering and responding to an employee experiencing symptoms of a heat-related illness were inadequate. Specifically, the Postal Service trains carriers to call a supervisor if they experience symptoms of a heat-related illness, and to call 911 if their symptoms are severe. The Secretary argued for two specific changes to these procedures:
(1) a “virtual buddy system” that would allow carriers to “keep in contact with a designated individual to gauge how [they each] are feeling” and allow them to “actively discuss[] how they feel” instead of waiting until their symptoms become “overwhelming;” and
(2) instructing carriers to contact the Postal Service’s “occupational health services program,” which is staffed by physicians and nurses, if they experience symptoms of a heatrelated illness.
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. 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 911 [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.
Air-Conditioned Vehicles
In every case except San Antonio, the Secretary argued that the Postal Service could have abated the hazard by replacing its fleet of non-air-conditioned “Long-Life Vehicles” (LLVs) (the “familiar boxy mail truck[s]”) with air-conditioned vehicles. On review, the Secretary states only that the LLVs many carriers drive can become very hot inside. Below, the Secretary argued that the use of air-conditioned vehicles would materially reduce the hazard by providing carriers with a cool location to take rest breaks, as well as a cool place to go if they are experiencing symptoms of a heat-related illness. The Secretary maintained that the economic and technical feasibility of this measure is demonstrated by the fact that the Postal Service is already planning to replace all of its LLVs with air-conditioned vehicles, and began taking steps to do so in 2014. He also noted that Bernard said he believed using air-conditioned vehicles is technically feasible.
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. 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.
The Postal Service contends that it adequately trains employees on heat safety through several means. It cites testimony from Manuel Peralta, the NALC’s national director of safety and health, who agreed that the Postal Service trains its employees, including management, on heat safety in a variety of ways, including stand-up talks, “Learning Management Systems” (computer-based) courses, posters, videos, bulletins, messages on computer screen savers, laminated cards listing the signs and symptoms of heat-related illnesses, stickers placed in vehicles with the same information, and mobile delivery device texts regarding heat safety. As for Bernard’s testimony, the Postal Service points out that he characterized its “Southern Area Heat Stress Campaign,” a compilation of heat safety information the Postal Service distributed in April 2016 to all post offices in the “Southern Area,” as “adequate” and “a good program” that “clearly a lot of effort had been put into.” Finally, the Postal Service argues that the Secretary failed to specify what additional training methods it should have used.
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. 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.”
Bernard made no attempt to explain what “a better focus” would entail. In fact, as the Postal Service points out, Bernard praised the Southern Campaign. Moreover, his vague criticisms focused on the results of the training in terms of what employees recalled rather than identifying any specific improvements the Postal Service should have made. Indeed, Bernard did not say that the training was too focused on hydration; he merely said that hydration was what employees seemed to best remember. In short, he did not clearly identify any specific inadequacies in the training given or explain what the Postal Service should have been doing that it was not.
As for the Secretary’s allegation that two Houston carriers did not receive heat safety training in the six months prior to the June 17, 2016 citation incident, the record does not support that claim. The only evidence the Secretary cited is the sign-in sheets for heat safety training sessions given on various dates during the summer of 2016, several of which show that the two carriers were in fact present at those sessions. The earliest sign-in sheet is dated a week after the June 17 incident, but the Secretary does not claim that was the first training session provided that year, or point to any evidence that it was. In fact, other documents provided by the Postal Service show that at least two other heat safety training sessions were given in late May and early June. There is nothing in the record to establish that the two carriers were not trained on these dates.
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.
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