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On July 24, 2012, Brother John Watzlawick, an Independence, MO, letter carrier  lost his life as a direct result of heat illness. An extensive investigation was conducted by OSHA and the Office of Region 5 National Business Agent Dan Pittman.

On December 12, 2012, OSHA issued a citation (Inspection#538158) labeled as “Willful” (click here for a copy). 

Our Safety and Health column for April 2013 references this citation and asks you to protect yourself.

The Postal Service challenged the citation.  A trial was scheduled before Judge Peggy S. Ball of the U.S. Occupational Safety and Health Review Commission in February of 2014. A decision was issued by Judge Ball on September 10, 2014 (copy of decision).

On page 34, Judge Ball writes:

i. "Heat is No Excuse"

From the very top of the management chain down to the floor supervisor, the message was clear: heat is not an excuse for performance issues. Mr. Behrends, the acting Officer-In- Charge at the time of the incident involving J.W. and other letter carriers, gave sworn testimony that Gail Hendrix and Steve Erbland told him and other managers that heat does not matter and that employees should be able to perform within their expected delivery parameters regardless of the weather. (Tr. 245-47). This is further supported by the series of emails that were sent between the various managers in the Mid-America District. That message was relayed to lower-level supervisors, such as Mr. Harvey and Mr. Dyer, who, in turn, conveyed the same message to the letter carriers.

In the penalty portion of the decision, Judge Ball writes:

In determining the appropriate penalty for affirmed violations, section 17(j) of the Act requires the Commission to give due consideration to four criteria: (1) the size of the employer's business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer's prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. JA. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995), aff'd, 73 F.3d 1466 (8th Cir. 1995).

Complainant proposed the maximum penalty of $70,000.00 for Citation 1, Item 1. This assessment was based on the fact that: (1) Respondent is a very large employer, with approximately 8,000 employees in the Mid-America District alone; (2) the gravity of the violation was high due to the significant risk of injury, the lack of meaningful protections, the fact that all employees at the Truman Station were exposed to the hazard, and the fact that multiple employees became sick, or, in J.W.'s case, died; (3) Respondent did not exhibit good faith; and ( 4) Respondent had a history of violations in the recent past. (Tr. 551-55). The Court agrees with the assessment of Complainant. As noted by the Commission, gravity is given primary consideration. In this case, numerous employees were exposed to the hazard of excessive heat without being properly equipped with adequate training and resources to prevent, recognize, and treat heat-related illnesses. Considering the amount of information available to Respondent regarding heat hazards, the Court also finds that Respondent should not be entitled to any credit for good faith. Accordingly, the Court shall assess a penalty of $70,000.00.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52( a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item l is hereby AFFIRMED, and penalty of $70,000.00 is ASSESSED.

SO ORDERED

It is fully anticipated that the Postal Service will appeal this decision.  Not because the facts are wrong.  Not because judgement was wrong. 

The Postal Service will appeal this decision because it refuses to accept responsibility for the actions of its managers that directly led to the death of John Watzlawick and the injury of three other letter carriers.

Place a copy of the citation and the decision of Judge Ball in your Shop Steward Safety Toolkit, and use it if necessary this year.  Also make sure you have it available for the future, when we again face the heat.