United States Postal Service – OSHRC Docket No.: 16-1872

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20 th Street, N.W., Ninth Floor
Washington, DC 20036-3457
Secretary of Labor,
Complainant
v.
United States Postal Service,
Respondent, 	OSHRC Docket No.: 16-1872
and
National Association of Letter Carriers
(NALC),
Authorized Employee Representative,
And
National Rural Letter Carriers’ Association
(NRLCA)
Authorized Employee Representative.
Appearances:
Dolores Wolfe, Esq.
Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
For Complainant
Eric E. Hobbs, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Milwaukee, Wisconsin
Jennifer L. Janeiro, Esq., USPS, Dallas, Texas and Heather L. McDermott, Esq., USPS, Chicago,
Illinois
For Respondent
Anita Lewallen
For NALC
BEFORE: 	Administrative Law Judge Sharon D. Calhoun
DECISION AND ORDER
I. INTRODUCTION
On the afternoon of June 10, 2016, a city letter carrier for the United States Postal Service
began to feel sick as he delivered mail on his route in Benton, Arkansas. He experienced a spinning
sensation and began to stumble. He started vomiting and sweating profusely. He staggered to a

2
van parked on the street, opened one of its doors, and collapsed on the front seat. A homeowner
eventually noticed him and called 911. Emergency medical technicians arrived, provided
emergency treatment for the carrier, and transported him by ambulance to a hospital.
The Benton Post Office notified the Occupational Safety and Health Administration of the
carrier’s hospitalization. OSHA opened an inspection of the Benton Post Office on July 14, 2016.
As a result of the inspection, the Secretary issued a one-item Citation and Notification of Penalty
to the United States Postal Service (referred to in this proceeding as the Postal Service or USPS)
on October 14, 2016. The Citation alleges a repeat violation of § 5(a)(1), the general duty clause
(29 U.S.C § 654(a)(1)), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-658)
(Act).1 The Citation alleges the Postal Service exposed its employees “to the hazard of excessive
heat while walking and delivering mail in an outdoor environment.” The Secretary proposes a
penalty of $124,709 for the alleged violation and seeks enterprise-wide implementation of
specified abatement measures.
This case is one of five pending before the Court in which the Secretary alleges the Postal
Service exposed its employees to excessive heat or high heat levels as they delivered the mail. The
National Association of Letter Carriers (NALC) and the National Rural Letter Carriers’
Association 	(NRLCA), 	authorized 	employee 	representatives, 	elected 	party 	status 	in 	the
proceedings. They did not present evidence, examine witnesses, or submit post-hearing briefs in
this proceeding (Tr. 16). The five cases were consolidated early in the proceedings for settlement
purposes, but the parties were unable to resolve the issues. On January 26, 2018, Judge Heather
Joys, the settlement judge, severed the cases for hearing, and they were reassigned to the Court,
who heard the five cases sequentially in October and November of 2018.2
The parties agreed the Court would hold a separate hearing (referred to as the national
hearing) to present testimony from expert witnesses and witnesses addressing issues common to
the five cases. The Court held the 12-day national hearing in Washington, D.C., from February 25
to March 12, 2019. The testimony and exhibits in the national hearing are part of the records in the
1 The Secretary initially characterized the alleged violation as serious. The Secretary subsequently amended the
Citation and complaint to characterize the alleged violation as repeat (Tr. 9; National Hearing (NH) Tr. 1149-61, 1337-
41).
2 The five cases arose from incidents in Benton, Arkansas (the present case) (No. 16-1872); San Antonio, Texas (No.
16-1713); Houston, Texas (No. 17-0023); Martinsburg, West Virginia (No. 17-0279); and Des Moines, Iowa (No. 16-
1813).

3
five cases, unless otherwise noted. The records of the individual cases were not admitted in the
other actions, unless noted.3
This is the first of the five Postal Service cases heard by the Court. The hearing was held
from October 16 to October 19, 2018, in Little Rock, Arkansas.4 The parties submitted briefs for
all five cases on September 17, 2019.
For the reasons that follow, the Court finds the Secretary did not establish a condition or
activity in the workplace presented an excessive heat hazard to Benton’s carriers on June 10, 2016.
The Court also finds the Secretary failed to show an economically feasible means existed to
materially reduce the alleged hazard of excessive heat. The Citation is vacated.
II. JURISDICTION AND COVERAGE
The Postal Service timely contested the Citation on November 1, 2016. The parties
stipulate the Commission has jurisdiction over this action, and the Postal Service is a covered
employer under the Act (Exh. J-1, ¶¶ 1-2; Tr. 24).5 Based on the stipulations and the record
evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of
the Act, and the Postal Service is a covered employer under § 3(5) of the Act.
III. EXECUTIVE ORDER NO. 13892
The parties filed post-hearing briefs on September 17, 2019, in the five Postal Service
cases. On October 15, 2019, President Trump issued Executive Order No. 13892, Promoting the
Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and
Adjudication, 84 Fed. Reg. 55239 (October 15, 2019) (E.O. 13892). Section 4 of E.O. 13892
provides:
Sec. 	4. 	Fairness 	and 	Notice 	in 	Administrative 	Enforcement 	Actions 	and
Adjudications. When an agency takes an administrative enforcement action,
engages in adjudication, or otherwise makes a determination that has legal
consequence for a person, it may apply only standards of conduct that have been
publicly stated in a manner that would not cause unfair surprise. An agency must
3 References in this decision to testimony and exhibits from the national hearing are indicated by NH followed by the
transcript page(s) or exhibit number(s).
4 One additional witness relevant to this proceeding testified at the hearing for Docket No. 17-0023 in Houston, Texas.
His testimony is admitted as part of the record in this case, the Houston case, and the San Antonio case (No. 16-1713)
(Tr. 1005).
5 Paragraph 2 of Exhibit J-1 provides: “By virtue of the Postal Employees Safety Enhancement Act of 1970, the OSH
Act became applicable to Respondent in the same manner as any other employer. Pub. No. 105-241, 112 Stat. 1572-
1575 (1998); see also 29 USC Section 652(5).”

4
avoid unfair surprise not only when it imposes penalties but also whenever it
adjudges past conduct to have violated the law.
On November 6, 2019, the Postal Service submitted a letter to the Court with a copy of
E.O. 13892 attached “as supplemental authority.” The Postal Service states:
[E.O. 13892] is relevant to two primary arguments in the Postal Service’s Post-
Trial Briefs:
1. The Commission has already recognized that defining a hazard as
“excessive heat,” which the Secretary has done in this case, falls far short of due
process. [E.O. 13892] makes it clear that OSHA is required to afford regulated
parties safeguards “above and beyond” those required for due process. Vaguely
defining a hazard as “excessive heat” does not meet [E.O. 13892’s] requirements;
2. [E.O. 13892] makes it clear that OSHA’s reliance on its heat chart and
other 	guidance 	documents 	as 	the 	basis 	for 	establishing 	a 	heat 	hazard 	is
impermissible. While agency guidance documents can be useful in enhancing the
regulated community’s understanding of a regulation, they are not intended to form
the basis of a violation. Guidance documents do not have the benefit of undergoing
notice and comment rulemaking, and thus do not provide the regulated community
with fair notice.
(Letter, p. 2) (footnotes omitted)
The Secretary filed a response on December 4, 2019, stating the terms of E.O. 13892 do
not create rights enforceable against the Secretary, and due process concerns are not implicated
where the Postal Service has recognized or should have recognized the alleged excessive heat
hazard at issue. The Secretary notes the Postal Service has suffered no unfair surprise as that term
is used in the Order.
By order dated January 30, 2020, the Court accepted the Letter and attached copy of E.O.
13892 as supplemental authority in this proceeding in accordance with FRCP 15(d), which
provides:
(d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice, the court
may, on just terms, permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented. The court may permit supplementation even though the original
pleading is defective in stating a claim or defense. The court may order that the
opposing party plead to the supplemental pleading within a specified time.
Having considered the parties’ arguments, the Court concludes the Secretary did not
overstep the terms of E.O. 13892 when he cited the Postal Service for a violation of § 5(a)(1) for
excessive heat exposure. Section 11(c) of E.O. 13892 states, “This order is not intended to, and
does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by

5
any party against the United States, its departments, agencies, or entities, its officers, employees,
or agents, or any other person.” Section 11(c) of E.O. 13892 bars review of an agency’s compliance
with E.O. 13892 in adjudicative proceedings.
Furthermore, § 9(c) of the Act grants the Secretary the authority to cite employers for
violations of § 5(a)(1). 29 U.S.C. § 658(a). Section 11(a)(i) of E.O. 13892 provides, “Nothing in
this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an
executive department or agency, or the head thereof.” E.O. 13892 cannot be used to restrict the
Secretary’s congressional authority to implement § 5(a)(1).
Finally, E.O. 13892 states agencies “may apply only standards of conduct that have been
publicly stated in a manner that would not cause unfair surprise.” Section 5(a)(1) requires
employers to “furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious physical harm
to his employees.” 29 U.S.C. § 654(a)(1). Hazards are recognized within the meaning of § 5(a)(1)
if they are known to the cited employer or would be known to a reasonably prudent employer in
the industry. SeaWorld of Fla., LLC v. Perez, 748 F.3d 1216 (D.C. Cir. 2014). The Secretary
previously cited the Postal Service for the willful exposure of carriers to excessive heat hazards,
and a Commission judge affirmed the violation. The decision and order became a final order of
the Commission. United States Postal Service, No. 13-0217, 2014 WL 5528391 (OSHRC Oct. 24,
2014). The Postal Service cannot claim plausibly that it was unfairly surprised by subsequent
citations for repeat violations alleging exposure of carriers to excessive heat hazards.
IV. THE BENTON HEARING
Stipulations
The parties stipulate the following:6
. . .
3. [The Postal Service] is divided into seven Areas which are in turn divided into
Districts.
4. The seven areas are: Northeast Area; Eastern Area; Western Area; Pacific Area;
Southern Area; Great Lakes and Capitol Metro.
5. This hearing involves operations at the post office at 1425 Military Rd., Benton,
Arkansas (Benton) which is located in the Southern Area.
6 Paragraphs 1 and 2 of Exhibit J-1 stipulate the Commission has jurisdiction over this action, and the Act covers the
Postal Service.

6
6. On June 10, 2016, [LC-1]7 was an employee of [the Postal Service] who worked
at the Benton post office.
7. On June 10, 2016, LC-1 was a city letter carrier who delivered mail for [the
Postal Service].
8. On June 10, 2016, LC-1 was assigned to Route 15006 which was his regular
route.
9. On June 10, 2016, LC-1’s scheduled begin tour time was 7:30 a.m.
10. On June 10, 2016, the total weight of the mail that LC-1 was supposed to deliver
was 95.75 pounds.
11. On June [10], 2016, the total number of pieces that LC-1 was supposed to
deliver was 1,426.
12. The members of management working at the Benton Post Office on June 10,
2016, do not recall having had any specified discussions with LC-1 before he
departed to his route that day.
13. On June 10, 2016, LC-1 drove a Long Life Vehicle (LLV) for [the Postal
Service].
14. The LLV did not have air conditioning.
15. The LLV did have a fan on the dashboard that was 6” in diameter.
16. LC-1 was hospitalized on June 10, 2016.
(Exh. J-1)
Background
Overview of the Benton Post Office
In June of 2016, city letter carriers for the Benton Post Office delivered mail on seventeen
full-time routes (configured so carriers can deliver the mail in 8 hours daily) and three auxiliary
routes (which can be completed in fewer than 8 hours).8 City carrier associates (CCAs) are contract
carriers who usually deliver mail for the auxiliary routes, aided sometimes by city carriers (Tr.
176, 570-71, 751, 774). In postal nomenclature, a pivot is the portion of a route assigned to a carrier
in addition to his or her regular route.9 Pivots include auxiliary routes as well as regular routes
7Pseudonyms are used in this Decision and Order to preserve the privacy of the Benton Postal Service employees and
former employees.
8 In this decision and order, the Court refers to respondent as “the Postal Service” or “USPS.” The Court uses “post
office” to refer to supervisory personnel at the Benton Post Office or the physical building, depending on context.
9 Brian Renfroe, executive vice president of NALC, stated carriers call the extra route portion by various names in the
different areas. “Some call it a piece, a pivot. I've heard a loop. That's what it's called where I'm from. A drag. Pigtail.
I've heard some words that are not appropriate for this Court to describe, you know. But they all mean the same thing:

7
whose assigned carriers are not working that day (Tr. 176-77). Carriers designated as T6 have
rotating schedules, working five days on five different routes, to cover the days off of the regular
carriers (Tr. 220).
By union contract, city carriers are guaranteed 40 hours of work per week but may
volunteer for the work assignment list, meaning they are willing to work overtime during their
regularly scheduled days but only on their own their routes. City carriers may also volunteer for
the overtime-desired list, indicating their willingness to deliver on other routes and to work on
their scheduled days off. City carriers have the opportunity to sign up for the lists once a quarter
and may remove themselves from them at any time (Tr. 69-70, 233-34, 533-34). In some
circumstances, supervisors may mandate carriers to work overtime even if they are not on the work
assignment or overtime-desired lists. Rules established by the collective bargaining agreement
(CBA) between the Postal Service and NALC determine the order in which supervisors assign
overtime (Tr. 235).
Trucks hauling the day’s mail for Benton arrive at the post office at 4:15 a.m., 5:30 a.m.,
and 6:45 a.m. (Tr. 775-76). The incoming mail comprises different classes (Priority Mail Express,
Priority Mail, First-Class Mail, periodicals, etc.) with different delivery schedules. The delivery
schedule is determined by the service standard, the delivery time to which the Postal Service has
committed. If a post office does not meet the service standard for Priority Mail Express, it must
refund the service fee to the customer (Tr. 777-78).
The Benton Post Office staffs a morning (A.M.) supervisor and an afternoon (P.M.)
supervisor. The A.M. supervisor arrives at 6:00 a.m. and ensures all delivery routes are covered
and assigns pivots if necessary. When the clerks arrive, they unload the mail and separate it. They
place the letter mail in a designated area for the carriers to pick up. They also sort magazines
(which the Postal Service calls flats) and place them at the individual cases the carriers use to
prepare their mail for delivery. This morning sorting process lasts approximately 3 hours (Tr. 222-
23, 777). Carriers are not permitted to assist with or perform tasks assigned to clerks because it
would be “crossing crafts” and is prohibited by the CBA (Tr. 223).
The post office anticipates increases in mail volume on certain days: Mondays (due to mail
accumulating on Sunday, when no delivery occurs); days following a federal holiday (especially
It's a portion of another assignment that I'm going to do in addition to the other work that I have for that d ay .” (NH
Tr. 168)

8
Tuesdays following a Monday holiday, when mail accumulates for two days); and Wednesdays
(when pennysaver coupons are delivered to every residence) (Tr. 329-31).
During the day, carriers collect outbound mail on their routes, and customers also bring
mail to the post office or deposit it in blue USPS collection boxes. The P.M. supervisor ensures
the day’s outbound mail is brought to the post office before the last dispatch truck leaves for the
Postal Service’s processing and distribution center in North Little Rock. The first dispatch truck
leaves at 4:30 p.m. and the second at 5:40 p.m. (Tr. 780). It takes approximately 30 minutes to
load the truck for dispatch. If carriers do not bring outbound mail to the post office in time for
dispatch, a Postal Service employee must drive approximately 40 minutes to the North Little Rock
plant to deliver the late mail. The deadline for delivery to the plant is 8:00 p.m. (Tr. 225-26, 781).
Outbound mail that does not arrive at the North Little Rock center in time is “a failed product.”
(Tr. 781)
Daily Routine of City Letter Carriers
LC-2 is a city letter carrier for the Benton Post Office. He has worked for the Postal Service
for almost 24 years. He served as president of the local union from 2009 to 2017. LC-2 acquired
his route when it came up for bid in 2014, and he is on the work assignment list for overtime. He
regularly delivers mail on his route 5 days a week, but he often works 6 days (Tr. 67-72, 83).
LC-2 described a typical day for him as a carrier at the Benton Post Office. When he gets
up, he looks at a weather app on his phone “to see if it’s going to rain and . . . to see what the
temperature is going to be.” (Tr. 131) He arrives at the post office and clocks in at 7:30 a.m. (city
carriers are not permitted to clock in early) (Exh. J-1, ¶ 9; Tr. 91). He first goes to the parking lot
and inspects his Long Life Vehicle (LLV), the familiar boxy Postal Service delivery truck. Using
a checklist, he notes any deficiencies for listed items (“turn signals, headlights, and windshield
wipers, and those type of things” (Tr. 88)) and, if necessary, submits a form to the maintenance
department to request needed repairs. He then goes to the post office workroom to prepare the mail
for his route (Tr. 87-88). The post office is air-conditioned in warm weather (Tr. 155, 228).
In the post office workroom, the supervisor’s desk is set in the center on a raised platform.
The cases in which the carriers organize their mail are set in a U-shape around the desk, in view
of the supervisor (Tr. 75). Sometimes supervisors will notify carriers they have automated delivery
point sequence (DPS) mail that has already been organized in trays. The supervisor also informs
the carriers what time the supervisor expects them to be out of the post office and delivering mail,

9
based on that day’s volume of mail (Tr. 72-73). About once a week, usually on a Friday, the
supervisor gives a 5-minute standup safety talk as the carriers gather around the supervisor’s desk
(Tr. 92-93, 255).
LC-2 proceeds to case the letters, flats, and small parcels or rolls (SPRs) to be delivered
on his route. A case has five shelves, with every shelf containing numerous 1-inch cells or slots
for each address on the route, so the carrier can organize the mail in delivery sequence. Supervisors
expect carriers to maintain a standard pace of “18 and 8,” meaning casing 18 letters and 8 flats per
minute (Tr. 93, 227). After casing the day’s mail, LC-2 pulls the larger parcels for his route and
takes them out to his LLV in a hamper, sometimes making several trips. He then withdraws his
DPS and checks the hot case (where clerks continue to process mail as carriers’ case their routes)
one more time before clocking out to the street. He drives his LLV to the first park point
(designated parking spot) on his route. On an average day, casing takes about an hour and 20
minutes. The casing time is included in the 8 hours allotted for completing the route. City carriers
at the Benton Post Office are usually on the street by 9:00 a.m. (Tr. 88-92, 227).
MDDs and Cell Phones
The Benton Post Office maintains a call log listing the cell phone numbers of its carriers
so supervisors can contact them on their routes (Tr. 241, 244). The post office forbids carriers from
using cell phones while driving their LLVs (Tr. 246). Prior to June 10, 2016, LC-1 and LC-3
understood they were not to use their cell phones while delivering mail on foot (Tr. 552-53).
Benton Post Office Supervisor K.S. testified the post office instructed the carriers that if they were
in an emergency situation, they should first call 911 and then call their supervisors. She was
unaware of a rule requiring carriers to leave their cell phones in their LLVs when delivering mail
on foot (Tr. 242, 247).
Carriers use handheld mobile delivery devices (MDDs) to scan packages when they deliver
them. Supervisors can use the MDDs to track the location of the carriers and the speed at which
they are moving. The Benton Post Office provided training to its carriers when they received the
MDDs (Tr. 399-400).
LC-1, LC-2, and LC-3 stated that prior to June 10, 2016, they were instructed they could
use the MDDs to text supervisors. LC-2 testified, “We were told that they had a text feature that
could be used to text management and also by the employee, and that it had some preset text
messages that we could use on the scanner to send to management.” (Tr. 121) LC-3 stated a

10
supervisor had told him he could use the MDD to text the post office in an emergency situation
(Tr. 524). Following the June 10, 2016, incident, Benton Post Office supervisors informed carriers
they could not use their MDDs to text (Tr. 122).
LLVs
The post office configures routes for mounted delivery (for which the carrier delivers mail
from the LLV to curbside mailboxes); dismount delivery (for which the carrier parks and delivers
mail to one or two houses at a time and then returns to the LLV and drives to the next park point);
and park and loop delivery (for which the carrier parks the LLV at a park point and walks down
one side of the street delivering mail to each address and then crosses to the other side to deliver
mail, looping back to the LLV) (Tr. 132, 230, 785-86). A loop may include 50 to 60 addresses but
typically includes closer to 25 addresses (Tr. 133).
The LLVs are not air-conditioned. They are equipped with a small fan mounted on the
dashboard (Exh. J-1, ¶¶14-15; Tr. 95, 23). LLVs have two side windows that can be rolled
manually up and down (Tr. 145, 231, 340). The LLV driver cannot roll down the side window
opposite the driver’s side from inside the vehicle (Tr. 162-63, 489-90).
LC-2’s route is designed for mounted delivery. He spends approximately 7 hours per day
in his LLV. He walks for approximately 10 minutes per day when he delivers mail to a strip mall
and when he has to deliver parcels to the doors of buildings (Tr. 132-33, 145). In warm weather,
he drives with the LLV windows rolled down. The interior of the LLV becomes quite hot in the
summertime. “[I]f you’re on a mounted route, which means that if you’re delivering curb line
routes from the vehicle, you can feel the heat from the floorboard of the truck coming through the
soles of your shoes and your feet will actually get hot from that.” (Tr. 97-98)
When delivering mail on foot, LC-2 leaves the windows rolled down as long as he can see
the LLV. “The rule is that if you lose sight of the vehicle, you have to secure the vehicle.” (Tr.
145-46) Carriers who deliver on park and loop routes must either roll the windows up or “crack”
them “an inch or two” when they are out of sight of the LLVs (Tr. 157). When he delivered on a
park and loop route, LC-2 testified, “I would roll down the driver’s side window after I’d come
back from my park and loop on to the next one, so I would have one window down.” (Tr. 162) He
would not roll down the opposite side window “[b]ecause it would take extra time. . . . It really
wouldn’t be worth it. . . You’ll have to get out of the vehicle and walk around to roll the window
up or down.” (Tr. 162-63) LC-1, who delivered on a park and loop route, only rolled down the

11
driver side window when driving his LLV. He did not roll down the opposite window because
“[m]anagement would consider that a time-wasting practice because I would have to roll it back
up every time I stopped for a park and loop.” (Tr. 340)
In hot weather, the interior of LC-1’s LLV “was hot enough that you couldn’t leave your
hand on the floorboard because it would burn your hand. . . . [M]y water cooler could actually get
squishy on the bottom because the floorboard was so hot.” (Tr. 336) He nicknamed his LLV “the
oven.” (Tr. 341)
Heat and Hydration
The Benton Post Office provides two water fountains and a water faucet in the employees’
break room. The water fountains “break down quite often.” (Tr. 98, 228, 344) There is also an ice
machine, purchased with union funds, which breaks down periodically (Tr. 99, 342). Supervisors
occasionally provide Gatorade or electrolyte powders to the carriers (Tr. 101). There is, however,
no discretionary fund for unbudgeted items. A former Benton Post Office postmaster stated,
“Everything requires approval. . . [S]ometimes as managers and postmasters, we go out and
purchase bottled water to hand it out to employees.” (Tr. 701) It is undisputed the break room
water faucet was always in working order and carriers had access to it daily (Tr. 341, 537).
In the spring and summer of 2016, Benton Post Office supervisors gave a number of
standup safety talks focused on delivering mail in hot weather conditions as part of the Postal
Service’s Southern Area Heat Stress Campaign (Exhs. R-5 & R-15; Tr. 258-59, 313-14).
Supervisor K.S. testified carriers “were advised to hydrate, avoid eating heavy meals during their
route, smoking and tobacco use, alcohol. Mostly hydrate, hydrate, hydrate, and hydrate. You need
to drink before, during, and after work. You need to drink small amounts intermittently throughout
the day. But to hydrate continuously.” (Tr. 256)
The Benton carriers understood the importance of proper hydration. LC-2 testified
“anytime it gets over 80°F, you’d better have you some fluids with you, a large amount of fluids
to drink. . . . I would say I probably take three or four bottles of Gatorade. . . . And then I would
take a couple of bottles of water. . . There’s a gas station on my route that I stop and I’ll get tea or
something to drink.” (Tr. 131-32) His fluid intake increases when the temperature exceeds 90°F,
drinking “way more than a gallon” as he completes his route, “[b]ecause you’re sweating, and all
day sweating, and . . . if you don’t, you’re in trouble because you’ll end up having some sort of
heat illness.” (Tr. 132) LC-1 testified that on hot days, “I could go through a gallon [of water] easy,

12
and then I’d have to go refill.” (Tr. 343) LC-3 stated he drinks at least 2 gallons of water a day in
hot weather (Tr. 535-36).
LC-2 has experienced symptoms he attributed to excessive heat while driving his LLV in
temperatures over 90°F. “I’ve had nausea and dizziness while driving a vehicle because of the heat
inside the vehicle. . . . In the summertime, it occurs all the time.” (Tr. 137-38) He does not call his
supervisor when this occurs. “I just feel that it’s my job to get the job done, and that’s kind of the
way we’ve been programmed, so that’s what I do.” (Tr. 138)
LC-3 has never felt ill due to heat when the temperature rose above 90°F, but he has
experienced discomfort. “Just being uncomfortable in the heat and exhaustion.” (Tr. 522) He has
never reported this discomfort to his supervisor because “it’s a typical thing. . . . [Y]ou work, you
get exhausted. . . . [I]t’s never been to a point for me personally where I’ve felt that I was in danger
or needed any type of assistance . . . or medical attention.” (Tr. 523)
Time Pressure and Form 3996
The postmaster of a post office is “the overseer for the entire facility, which include[s] all
of the employees, the supervisors, custodians, clerks, carriers.” (Tr. 699) For budgetary purposes
the Postal Service expects each post office to accomplish its scheduled work for all operations
within a certain number of allotted work hours (Tr. 691-96). The Postal Service does not allow for
adjustments to be made in the allotted work hours due to hot weather (Tr. 746).
If carriers believe they will not be able to complete the route in 8 hours, they submit a form
(Form 3996) requesting more time (overtime) or help (auxiliary assistance) to complete delivery.
The carriers estimate on the forms how much additional time they will need to complete the routes
(Exh. C-24; Tr. 72-73, 76-77, 81). Benton carriers must submit the Forms 3996 by 8:00 a.m.,
which they do by placing them in a tray on the supervisor’s desk (Tr. 76, 404, 747).
Supervisors use a computer program each morning to generate a workload status report
based on measurements they enter for the mail volume. The workload status report calculates the
time required for individual carriers to case the mail and deliver it on their designated routes (Tr.
249). Supervisor K.S. stated that when carriers submit the 3996 forms, the supervisor “could go
over the information with them and either approve or disapprove the auxiliary assistance or the
overtime.” (Tr. 248) The supervisor would not approve a request for auxiliary assistance if the
volume of mail “did not warrant the assistance, or if they were not on the overtime list. If they
were on the work assignment list, you did not authorize assistance because they had requested to

13
work the overtime.” (Tr. 248) Requests for overtime would be denied “[i]f the volume did not
warrant the overtime, or if they weren’t going to make dispatch.” (Tr. 248) Supervisor K.S.
estimated five or six carriers would submit request forms on an average day, and supervisors would
disapprove half of them (Tr. 302). If a carrier submits a Form 3996 that is disapproved, he or she
may call the supervisor later that day to request auxiliary assistance or overtime (Tr. 301).
LC-2 testified the 8:00 a.m. deadline does not allow enough time for carriers to determine
whether they need to submit the forms because “oftentimes the mail is still being worked,
especially now the parcel volume is so heavy. . . . So the letter carrier does not always know how
much mail that he’s going to have.” (Tr. 77) LC-2 estimated he submits a Form 3996 “four out of
five days on average.” (Tr. 77) He has submitted forms listing excessive heat as the reason for
needing additional time to deliver the mail (Tr. 103).
LC-3 delivered on City Route 14 in 2016. He walked approximately 5 hours daily on the
route, covering a distance of 11 miles. He spent approximately an hour a day in his LLV (Tr. 499,
501). Typically, he was able to complete his route in 8 hours except on Mondays. His route had “a
lot of businesses that are closed on Saturdays, so that the mail for closed businesses with nowhere
to deliver the mail on Saturday gets delivered on Monday. It’s held at the post office till Monday.”
(Tr. 497) More mail also requires more casing time. LC-3 estimated Monday and post-holiday
mail required an additional 15 to 20 minutes to case (Tr. 499). He routinely submitted a Form 3996
each day (Tr. 555).
LC-2 stated requesting more time creates “a contentious situation because the carrier is
asking for overtime and the manager does not want to give you overtime. So you’re both
approaching the issue coming from different viewpoints.” (Tr. 78) To discourage carriers from
submitting Forms 3996, supervisors “will threaten to put a seat in your vehicle and ride it with
you” because they assume “you’re not being honest and they’re threatening to go with you so that
they can prove that you’re not telling the truth.” (Tr. 79)
LC-2 testified supervisors rushed carriers out the door “almost daily” because “they want
you out of the office as soon as they can because when you get out fast, you can get back fast. And
that’s what their concern’s with.” (Tr. 85-86) Benton Post Office supervisors have disciplined
carriers for taking too long to deliver the mail, citing them for “time wasting practice.” (Tr. 164)
Carriers are contractually entitled to a 30-minute lunch break and two 10-minute breaks
(one before and one after lunch) (Tr. 108, 238, 790). The Benton Post Office provides carriers with

14
a route book that identifies approved locations for breaks that “are along their route, and they have
multiple places that they get to choose.” (Tr. 240) LC-3 usually ate lunch in his LLV “to avoid
having any travel time associated with” his 30-minute lunch break. “I would park it under a shade
tree and open up both doors. And . . . typically leave the key turned on with the dash fan blowing.”
(Tr. 501-02)
The Benton Post Office told carriers they may take comfort breaks as needed (Tr. 147). A
comfort break is usually a bathroom break or an opportunity to refill or purchase beverages. The
post office does not limit comfort breaks in hot weather (Tr. 239-40, 790). In standup safety talks
given the summer of 2016, supervisors informed carriers “they were allowed to get extra breaks. .
. . [An extra break is] a comfort stop. . . . It’s not a contractual break. It’s above and beyond what
we already allow them contractually.” (Tr. 301) LC-2 stated he occasionally takes a break just to
cool off. He does not ask permission to take breaks to cool off or report taking them to his
supervisor afterward (Tr. 148).
Despite the post office’s official position allowing comfort breaks, supervisors discourage
carriers from taking them, as well as their contractually guaranteed breaks (Tr. 109-11). LC-2
testified, “I have been asked to not take my lunch break before.” (Tr. 149) LC-1 testified he had
been discouraged from taking extra breaks. “[W]e had to get done in 8 hours. Management stressed
that to us on a daily basis. And if we went over, we would get in trouble or there would be
confrontation back at the office if we didn’t make 8 hours.” (Tr. 368-69) The post office held talks,
called “official discussions” with carriers who committed infractions. Benton’s former postmaster
explained, “As part of the collective bargaining agreement we’re required to give an employee an
official discussion which is putting them on notice of whatever the infraction is. And then there’s
progressive corrective action.” (Tr. 821) LC-1 testified supervisors had held five or six official
discussions with him because he had exceeded 8 hours to complete delivery on his route. “They
were never sympathetic about not making your 8 hours.” (Tr. 369)
CCA is a contract position not entitled to the benefits accorded to city carriers (Tr. 508).
CCA-1 testified CCAs are “expected to move faster than regular letter carriers. . . . We’re told not
to take our lunches, . . .to skip breaks.” (Tr. 580) He stated, “Even in training, when I went to
training, before I was ever even on job training at the plant, the trainer told us in our 90 days
[probation period], it’s a good idea not to take your lunch breaks so you can show that you’re
performing faster, because if not, they’ll let you go. Or fire you.” (Tr. 584) One supervisor repeated

15
this to CCA-1 “all the time in the morning. He says you’d better skip break.” (Tr. 586) CCA-1
testified that when he submitted Forms 3996 in 2017, the supervisor “[would] tell you, ‘[Y]ou
don’t need that,’ and [he would] try to swipe the form from you. Also, there’s a time where they
would hide the 3996s underneath paperwork, but I knew where they were kept on the shelving
over by the hot case, so I would just go get one and fill it out and put it on the supervisor’s desk.”
(Tr. 590)
LC-2 witnessed an incident when the former postmaster and a supervisor called a carrier
into the office because he failed to complete his route in 8 hours. LC-2, as union steward,
accompanied him to the office. LC-2 testified the carrier was “very distraught after the meeting
occurred,” and he rested his head against the wall (Tr. 139). LC-2 observed the supervisor “taking
a photograph of him leaning against the wall. And him and [the postmaster] were laughing at [the
carrier].” (Tr. 140)10
Benton Post Office supervisors discouraged carriers from taking time off. LC-2 testified
they “will kind of give you a hard time about it” if a carrier calls in sick, telling the carrier, “You
don’t really need to take off. We really need you here today.” (Tr. 118) He testified that after he
had called in sick one day, his supervisor called him at home three times and sent a carrier to his
house to confirm he was there (Tr. 118). The supervisors also pressured employees to work on
their scheduled days off. CCA-1 stated the post office called several times while he was sleeping
on his day off. “I was asleep for the first bunch of calls, but eventually I woke up, and I saw that
they’d been calling. And they sent a CCA out and knocked on my door. Well, he pounded on my
door, woke up my baby.” (Tr. 681)
June 10, 2016, Incident
LC-1 was one of approximately 25 city carriers working for the Benton Post Office on June
10, 2016. He has worked for the Postal Service for 14 years, and he transferred to the Benton Post
Office in 2013 (Tr. 173, 308). (LC-1 now works at a post office in another state (Tr. 342).) He was
on the work assignment list indicating his willingness to work overtime (Tr. 234).
LC-1 delivered mail on City Route 6, most of which was a park and loop route, with 15
park points (Tr. 310-13). LC-1 spent 45 minutes to an hour daily in his LLV (Tr. 349). He described
10 The former postmaster acknowledged she and the supervisor were present at the Benton Post Office when the carrier
became upset. She denied photographing or laughing at the carrier (Tr. 820). The Court credits the testimony of LC-
2 over the postmaster’s denial.

16
his route as “assisted living, businesses[,] . . . residential, and it was kind of hop outs and then
walking. . . .Mainly walking, and then I had cluster boxes in the morning that I would pull up to.
But it was maybe like 45 minutes of that.” (Tr. 310-11) LC-1 typically spent 5 hours walking on
his route, and he was in direct sunlight about half of that time (Tr. 347). LC-1 carried a pedometer
with him. He typically walked 9 to 10 miles daily delivering mail (Tr. 333-34). He estimated
approximately 100 houses on his route required him to walk up ten or more steps (“the StairMaster
loop”) (Tr. 346-47).
The Benton Post Office expected LC-1 to complete his route in 8 hours (Tr. 319-20). New
addresses had been added to the route since 2013. In 2014, the post office conducted a route check
and recalculated the delivery time for City Route 6. “[T]hey took off like 20 minutes, and they
added 40 minutes, and they still wanted me to get it done in 8 hours.” (Tr. 320)
Although LC-1 often completed his route in 8 hours, he submitted a Form 3996 every day
“just in case.” (Exh. C-1; Tr. 405) “[W]e usually fill one out every day. Otherwise, we would get
in trouble for coming back after 8 hours. So they would want us . . . to kind of like take a guess on
how many parcels we had, how [many] flats we had cased up, and how much DPS we’d have.”
(Tr. 322-23)
Supervisors typically discouraged him from submitting a Form 3996. “They usually said
that ‘You can do it in 8. We don’t even need this 96.’” (Tr. 325) LC-1 described the supervisors’
tones as “confrontational” and stated, “They kind of degraded you.” (Tr. 326) LC-1 would usually
wait until the supervisor left the desk before submitting his form. “That way, I could avoid
confrontation.” (Tr. 327)
LC-1 began his workday on June 10, 2016, as he usually did, clocking in at 7:30 a.m.,
inspecting his LLV, and then casing his mail for the approximately 650 houses on his route. This
process generally lasted 1 to 3 hours (Tr. 312). LC-1 was supposed to deliver 1,426 pieces of mail
that day, weighing a total of 95.75 pounds (Exh. J-1, ¶¶ 10-11). He left the post office at
approximately 8:45 a.m. (Tr. 366).
LC-1 would have either watched the news in the morning or looked at his cell phone to
check the predicted high temperature and to see if rain were forecast (Tr. 332). LC-1 was dressed
in shorts and a T-shirt that day and wore a baseball cap and sunglasses (Tr. 350). The Postal Service
provides an annual allowance to carriers to purchase weather-appropriate clothing (Tr. 432). LC-
1 submitted a Form 3996 the morning of June 10, 2016, which supervisor K.S. disapproved (Tr.

17
202-03). She testified the Postal Service has not trained her to evaluate the impact of the day’s
temperature forecast when evaluating the forms (Tr. 204-05). She did not notice anything out of
the ordinary with LC-1 during her encounter with him that morning (Tr. 251).
LC-1 used to carry his cell phone with him as he walked on his route and listened to
podcasts. At some point before June 10, 2016, a supervisor instructed the carriers during a standup
safety talk they had to leave their cell phones in their LLVs while they walked their routes. He
would check his cell phone for texts from his supervisor when he returned to his LLV or use it to
find addresses. “If I had a pivot that I didn’t know where it was, I would use my maps to see where
it was. Like punch up the address and go do my pivot.” (Tr. 358, 363-64) At times he used his cell
phone to try to call his supervisor, but the calls were not always answered (Tr. 365, 429).
Nothing unusual occurred the morning of June 10 for LC-1. He took his 10-minute morning
break between 10:00 and 11:00 (Tr. 401, 425). He took his lunch break sitting in his LLV (Tr.
368). He explained, “I don’t like to travel to a certain place because that would take out of my half-
hour break. But I would have my door open and so there’d be a breeze and my fan on.” (Tr. 401)
By the early afternoon, he had drunk approximately a half gallon of water (Tr. 344).
Around 12:50 p.m., as he was driving to his next park point, he began to experience
problems with his vision (Tr. 367). “[M]y vision started bouncing back and forth to the left and
right while I was driving. And I was in the turning lane. I was about . . . two blocks away from my
next park point. There was oncoming traffic, so I had to wait for them to pass by. Then when they
passed by, I felt good enough to drive[.]” (Tr. 351) LC-1 drove to his park point and drank some
water. He felt well enough to start the next loop which comprised 11 houses (Tr. 351).
The first two houses were okay. The third house, the mailbox was on the garage . .
. so I turned around, put the mail in the box, and when I turned around like the
whole world was spinning, and I couldn’t walk and I kind of had to catch myself. I
stumbled to a light pole that I saw. . . . I grabbed onto that and I started vomiting,
and I was still spinning, vomiting, and I could hardly stand up. . . . There was a van
beside me, and I managed to make my way over to that, and it was kind of like I let
go of the light pole and my body was just falling hard to the right. Then I got onto
the van, managed to get my way around that. And I noticed the window was down.
So I managed to get the door open and I tried to honk on the horn, but the horn was
broke. . . . [I was] sweating. Sweat was just pouring off of me. Still vomiting.
Dizziness. My head was spinning. Sweating terribly, and I could see it running
down the seats and just like—you know, like I was in the shower pretty much.
(Tr. 353)

18
LC-1 had left his cell phone in the LLV (Tr. 362-64). He recalled the supervisor’s
instruction that carriers could text Benton Post Office supervisors using their MDDs (Tr. 360) “I
thought I would get help if I sent a text message in an emergency situation to my supervisor.” (Tr.
362) He texted the Benton Post Office using his MDD and texted again when he did not hear from
a supervisor. He sent a third text using a preset option that requested emergency assistance because
he “couldn’t type any more buttons to make a sentence.” (Tr. 353) He received no response to his
texts.11 After approximately 45 minutes, one of the residents on the street came out and asked if
he needed help. At LC-1’s request, the resident called the Benton Post Office and 911. Emergency
medical technicians arrived and transported LC-1 by ambulance to a hospital, where he stayed for
three days (Tr. 353-54).
The former postmaster received a telephone call at around 1:30 p.m. alerting her that LC-
1 had been taken to the emergency room (Tr. 702). She and supervisor K.S. drove to the location
of LC-1’s LLV to retrieve it and secure the undelivered mail. Driving the LLV, K.S. followed the
former postmaster to the hospital where they briefly visited LC-1 in the emergency room (Tr. 201,
251, 354, 704).
The former postmaster subsequently completed an accident report (Form 1796/301) for the
incident. Line 41 of the form asks, “What object or substance directly harmed the employee?” She
responded, “Temperature was 91°F.” (Exh. C-14; Tr. 706). She testified she believed her response
“was necessary information” based on LC-1’s initial diagnoses of heat exhaustion (Tr. 706). The
former postmaster testified she later determined LC-1 contributed to “an unsafe personal factor”
because when he began to feel ill, “he tried to push himself to go on, and he should’ve, you know,
contacted the supervisor or 911.” (Tr. 716) The Postal Service did not discipline LC-1 for his
actions on June 10, 2016 (Tr. 725). LC-1’s admission diagnosis was heat exhaustion but was later
changed to vertigo (Tr. 447, 898).12
11 No one at the Benton Post Office was monitoring incoming MDD messages on June 10, 2016. Later, the post office
found 	the 	three 	messages 	from 	LC-1 	in 	the 	inbox 	for 	the 	MDDs, 	timestamped 	1:01 	p.m.
(“IMDOWNSENDHELP123OLIVE”), 	1:21 	p.m. 	(“NOW127OLIVENEEDHELPNOW”), 	and 	1:30 	p.m.
(“Police/Postal Inspection Emergency”) (Exh. C-15; Tr. 754-55).
12 Dr. Shirley Conibear, who reviewed LC-1’s medical records, stated at the national hearing the actual diagnosis was
labyrinthitis. “The labyrinth is three circular tubes that are near your ear and it’s the way that you sense where you are
in space. So they . . . help you balance, basically.” (NH Tr. 3016) Vertigo is a symptom of labyrinthitis. “It is the
sensation that either you’re moving or the world is moving, kind of like when you get off the merry-go-round, except
it’s there all the time.” (NH Tr. 3016)

19
LC-1 testified that prior to June 10, 2016, he had never been hospitalized. He described
himself as “fairly healthy.” (Tr. 356) He walked an average of 50 miles a week for work and would
often go hiking with his family on Sunday (Tr. 356). After LC-1 was released from the hospital,
he went through several weeks of physical therapy (Tr. 373). He continued to experience trouble
with his balance and used a cane. He had difficulty rising from a seated position (Tr. 357). At the
time of the hearing, more than two years after the episode, LC-1 still had trouble walking. “I’ll like
to lose my balance and I’ll fall to the right still. I’ve kind of adapted to catch myself before I fall
down.” (Tr. 357) He also experienced ringing in his ears (Tr. 357).
OSHA’s Inspection
Compliance safety and health officer (CSHO) John Wolfe works at OSHA’s Little Rock,
Arkansas, area office (Tr. 860). In July of 2016 he was assigned to investigate the June 10 incident
that resulted in LC-1’s hospitalization. He went to the Benton Post Office and met with post office
personnel and union representatives and later spoke with LC-1 (Tr. 861-63). He did not walk LC-
1’s route or take temperature readings inside LLVs (Tr. 891-92, 915-26).
The National Weather Service (NWS) does not have a data acquisition site in Benton,
Arkansas. The nearest site is located 15 to 20 miles away, in Little Rock, Arkansas, at the Adams
Field Airport. CSHO Wolfe obtained Little Rock’s weather data for June 10, 2016, from the NWS
(Tr. 864). The NWS data shows the temperature that day at 12:53 p.m. (the approximate time LC-
1 began to experience vision problems) was 91°F, with a relative humidity of 42 percent (Exh. C-
3).
CSHO Wolfe compared this data with the heat index chart issued by the NWS (Tr. 869-
70).13 The chart indicates that when the temperature is 91°F and the relative humidity is 42 percent,
the heat index (“how hot it feels”) is 93°F. The NWS Weather Forecast Office (WFO) in Little
Rock did not issue a heat advisory for June 10, 2016 (Tr. 929).
Based on the NWS’s weather data for June 10, 2016, for Little Rock, Arkansas, and NWS’s
heat index chart, CSHO Wolfe concluded Benton Post Office carriers “were exposed to heat stress
while working delivering the mail” that day (Tr. 888). As a result of his inspection, CSHO Wolfe
recommended the Secretary cite the Postal Service for violating the general duty clause by
13 The Secretary did not move to admit the NWS heat index chart in this proceeding. It was admitted in the other four
proceedings and was the subject of expert testimony at the national hearing.

20
exposing carriers “to the hazard of excessive heat while walking and delivering mail in an outdoor
environment.” The Secretary issued the Citation on October 14, 2016.
V. TESTIMONY ADMITTED IN THE SOUTHERN AREA CASES
The Southern Area is one of the seven areas into which the Postal Service divides the
United States for regional delivery (Exh. J-1, ¶¶ 3-4). Three of the five post offices in the cases
before the Court are located in the Southern Area. The parties agreed the testimony of Daniel
Penland, the Postal Service’s manager for the Southern Area safety department, is relevant to the
three Southern Area cases. The Court ruled Penland’s testimony in the hearing for Docket No. 17-
0023 in Houston, Texas, is also admitted as part of the record in the present case and the San
Antonio case (No. 16-1713) (Tr. 1005).14
The Southern Area comprises Arkansas, Texas, Louisiana, Oklahoma, Mississippi,
Florida, and a portion of Georgia. Approximately 33,000 postal employees work in the Southern
Area. Daniel Penland has worked for the Postal Service since 1986 and has been the manager for
the Southern Area safety department since November of 2011 (No. 17-0023 Tr. 303-04, 313-14).
Penland summarized his duties. “I work with all the districts in the Area Office and Headquarters
to ensure all the safety programs and assist the districts in implementing those safety programs.
We also help develop and help the districts analyze accident data to help reduce employee injury.
We also work with OSHA compliance, inspections and monitoring, as well as working with the
unions to ensure all the safety of the employees is met.” (No. 17-0023 Tr. 310-11). Penland was
aware that in 2015 at least 119 postal employees in the Southern Area reported sustaining heat-
related illnesses while working. In 2018, there were at least 77 such incidents (No. 17-0023 Tr.
329, 334).
In April of 2016, Penland issued a letter to postal operations in the Southern Area with
attached materials for the Southern Area Heat Stress Campaign (No. 17-0023 Exh. C-2; No. 17-
0023 Tr. 329). He developed the campaign to “help improve the awareness of our employees about
a climate condition that happens every year. . . . To heighten the employees’ awareness and make
them aware of things that they may be able to do and perform to improve their ability to work in
that climate condition.” (No. 17-0023 Tr. 330) Employee training in the Southern Area Heat Stress
Campaign was not mandatory (Tr. 331). Penland explained the difference between a Postal Service
14 References in this decision to testimony and exhibits from the Houston hearing are indicated by No. 17-0023
followed by the transcript page(s) or exhibit number.

21
safety program and a safety campaign: “[W]hen I put out a program, it’s usually related to a
required element. A campaign is an awareness level. . . . The heat element was a campaign
informational awareness.” (No. 17-0023 Tr. 333)
What the intent of the campaign was to provide a wealth of information in different
media forms. As you can see when you look through the campaign, there were
videos in there, there were PowerPoint presentations. There were links to other
outside data sources. There were postings. There were just informational standup
talks on a number of different elements that all can relate to a possible employee
experiencing heat stroke or heat stress. All of these things could help that employee
prepare themselves. . . . But none of it was mandatory.
(No. 17-0023 Tr. 374-75)
Penland stressed the importance of acclimatization for carriers, which he defines as
preparation “for the heat level that you’re going to be working in, whether it’s proper hydration,
proper clothing, being aware of the surroundings.” (No. 17-0023 Tr. 341) Penland places the
primary responsibility for preventing heat-related illnesses on the carrier. He stated it is the policy
of the Postal Service “to accommodate medical restrictions as best as possible.” (No. 17-0023 Tr.
345)
Penland does not believe the temperature the day of any given reported incident is a
relevant factor. “It’s how each individual person identifies with that heat and the heat level itself
is not necessarily the concern. It’s how that person can deal with that heat and how that heat level
affects them. I can be affected by a heat level of 80 degrees or somebody could be out there
working in 100 and have no effect. So the temperature itself is not the issue, in my opinion.” (No.
17-0023 Tr. 352-53) He listed factors he did believe are relevant to heat-related incidents:
Had [the carriers] eaten properly that day? Had they provided hydration the night
before? Had they had a high alcohol intake the night before? Were they on
medication? Were they properly dressed? Were they wearing a hat or was the sun
beating down on their head? There's lots of different elements that are part of an
investigation where the heat temperature or the temperature outside itself to me is
irrelevant because that's a climate condition.
(No. 17-0023 Tr. 353-54)
Penland was dismissive of the relevance of the heat index chart for the Postal Service. “I
believe it would be valuable as information to the employee. As far as eliminating future injuries,
I do not see it has a high value, no. Again, it's more of a condition of what's going on with that
employee versus the temperature outside because temperatures are so much different. . . . Heat
itself I do not believe is a hazard, no. I believe it is a climate condition.” (No. 17-0023 Tr. 354-55)

22
Penland discounted the importance of heat in the reported heat-related incidents, estimating
that as many as 40 percent of the reported incidents were not, in fact, due to high temperatures on
the day they occurred.
Q.: Mr. Penland, I think you were testifying about the fact that some of the reported
illnesses due to heat may have not been due to heat, correct?
Penland: Possibly, yes.
Q.: Okay. And have you investigated what percentage that is?
Penland: 	The exact percentage, no. I just know that there are--when we look at
cases, we want to look and see if the factors are present. And we always want to
look at the root cause of the case. So sometimes during that root cause analysis, we
will make determinations that the heat maybe is not--wasn't the root cause. . . . And
maybe it's a diabetic reaction. We don't know.
Q.: Okay. And have you gone back and done that analysis?
Penland: 	The specific analysis, no, but we've done-- we've done the root cause.
When you talk about analysis, I refer to that as the general -- all of the cases that
we're dealing with versus just those specifics. We do go into the specifics on each
individual case, especially the more severe ones.
Q.: 	Okay. So have you gone back and made some determination that -- I mean,
have you gone back and looked at the number that you set out in April of 2016 and
determined what amount were reported as heat, extreme heat, when the root cause
was something predominantly else?
Penland: I've looked at it, and I could estimate the percentage of about 40 percent.
Q.: Okay. And you have looked at all 119 injuries from 2016 and –
Penland: No, I haven't. That's why I estimated. No, ma'am, I have not delved into
each one of these 119. But a cursory review gives -- leads to an estimate of about
20 percent [sic].
Q.: Okay. And what did you do in this cursory review?
Penland: I would review whether or not this case was reported with the employee
was working indoors or outdoors, first. Then I would look at the occupation that
the employee was working in. How much control did they have over their climate?
(No. 17-0023 Tr. 380-83)
Penland noted OSHA has not promulgated a specific standard addressing excessive heat
and testified he did not consider hot weather an appropriate condition for safety regulation. “When
you're dealing with the climate, . . . it literally changes from block to block, from city to city, and
it's -- it's the natural climate. Also, the other thing that when you look at a hazard, I've been taught
through my safety aspect is we work the processes to eliminate that hazard. Again, we can't control

23
the climate. So we will make people aware because the – the climate affects each individual person
differently.” (No. 17-0023 Tr. 392)
VI. THE NATIONAL HEARING
Joint Stipulations
The national hearing was held from February 25 to March 12, 2019, Washington, D.C. At
the beginning of the hearing, the Court admitted the parties’ statement of joint stipulations into the
record:
1. In the following Fiscal Years (FY), the Postal Service’s total revenue was:
2016 $71.498 billion
2017 $69.636 billion
2018 $70.660 billion
2. In the following Fiscal Years, the Postal Service’s total operating expenses were:
2016 $76.899 billion
2017 $72.210 billion
2018 $74.445 billion
3. In the following Fiscal Years, the Postal Service’s net loss was:
2016 $5.591 billion
2017 $2.742 billion
2018 $3.913 billion
4. As of September 30, 2018, the Postal Service employed approximately 497,000
career employees and approximately 137,000 non-career employees.
5. In FY 2016, the Postal Service employed the following:
170,885 city delivery carriers
40,436 city carrier assistants
68,261 career rural delivery carriers
53,183 rural carrier associates
6. In FY 2018, the Postal Service employed the following:
168,199 city delivery carriers
42,115 city carrier assistants
70,852 career rural delivery carriers
59,183 rural carrier associates

24
7. In FY 2016, the Postal Service had approximately 144,571 city delivery routes
and 74,724 rural delivery routes.
8. In FY 2018, the Postal Service had approximately 143,358 city delivery routes
and 78,737 rural delivery routes.
9. In FY 2016, the Postal Service managed a combined total of approximately
31,585 post offices, stations, and branches.
10. In FY 2018, the Postal Service managed a combined total of approximately
31,324 post offices, stations, and branches.
(NH Exh. J-100; NH Tr. 11)
Overview of the Postal Service’s Operations
David Williams Jr. has been the chief operating officer and executive vice president for the
Postal Service since February of 2015. He is responsible for all operations required to process,
transport, and deliver mail (NH Tr. 1728, 1746). He explained the Postal Service’s operations are
divided into three primary sectors: 	network operations, delivery operations, and retail and
customer service operations (NH Tr. 1774-75).
Network operations cover mail processing plants where mail is sorted, processed, and
distributed to some level of ZIP Code order (NH Tr. 1775-76). Network operations include the
surface and air transportation that is coordinated with the distribution centers and post offices
throughout the nation. The Postal Service coordinates surface transportation with the assistance of
over 1,900 contractors and covers approximately 1.9 billion miles a year (NH Tr. 1774-76). It
relies on “a vast air network,” which includes 90 airplanes during the day and 140 at night provided
by FedEx, as well as planes provided by UPS (NH Tr. 1760). The Postal Service also uses
commercial airlines (mainly Delta, United, and American) to transport mail (NH Tr. 1779). The
extensive transportation network is necessary due to the Postal Service’s unique mandate to deliver
to every address in the United States.
[A] lot of transportation is involved in moving product because of the complexity
of our network, the fact that we go everywhere. We go everywhere because our
mandate is to serve every American, no matter where they live, no matter what
community they're in. And the connectivity that's required to make that happen
involves a very complex, very sophisticated transportation network. We spent about
$7.9 billion a year on transportation, so a significant spend. It's the second-largest
spend, and 11 percent of our expenses are involved in transportation.
(NH Tr. 1780-81)

25
Nationwide, delivery operations require city and rural carriers to complete approximately
226,000 routes 6 days per week (NH Tr. 1783-84). The Postal Service uses the concept of
“FirstMile” to identify the initial contact the customer has with the Postal Service during delivery
operations. A customer wanting to send a letter puts a stamp on it, places it in the household
mailbox, and raises the red flag. The raised red flag “is a signal to our carrier workforce that there
is mail to be collected. . . We also have a FirstMile component at our post offices. . . [T]here’s a
slot where they can drop mail into any one of approximately 31,000 post offices.” (NH Tr. 1785-
86)
Retail and customer service operations also involve a FirstMile component when customers
buy stamps or mail packages at post offices. Williams stated the Postal Service has the largest
retail footprint in the United States, with more retail units than Starbucks, Walmart, and
McDonald’s combined. Service and sale associates (SSAs) work in the fronts of the post offices
and interact with customers while postal clerks work in the backs sorting mail (NH Tr. 1787-89).
Williams expounded on the scope and complexity of its operations.
I can't think of any network that is as complex as ours. You think about all the touch
points that we have in our network, every 226,000 carriers, 31,000 post offices, 285
processing and distribution centers. Back through our network of transportation,
whether it's air or surface, 2 billion miles. Airplanes that are flying all over the
country, connecting that promise and that thing, that message of sympathy and love,
transactions, educational material to anybody else in the United States or our
territories, even the world. We deliver 47 percent of the world's mail.
So significant, significant operational footprint that we have, supported by
a tremendous amount of complexity to make sure that we're delivering the promise
of when you put that stamp on that birthday card for one of your loved ones, they're
going to get it.
(NH Tr. 1791-92)
In order to ensure its operations run smoothly and punctually, the Postal Service
implements “the 24-hour clock” as an organizing principle. “[W]e have critical points on the
clock, developed to make sure that we're hitting the mark, all to achieve on-time service to points.
Our mission to provide prompt, reliable, efficient service is based on this 24-hour clock. And it's
critical.” (NH Tr. 1795)
The clock starts with carriers retrieving mail at the FirstMile. At the end of the workday,
the carriers return to their post offices and place the collected mail in containers that are loaded
onto trucks to transport the mail to processing and distribution centers. The operational process
starts with cancellations, during which the stamps on mail are marked to show they have been

26
used. The Postal Service expects 80 percent of all collected mail to be canceled by 8:00 p.m.
Aligning the cancellation process with the 24-hour clock is crucial for the Postal Service’s overall
operations (NH Tr. 1795-97). “[T]hat very first step is highly important because any variation in
the very first processing step, it could be a slight variation, but that slight variation creates greater
variation at the next step. It creates even larger variation on the third step. Fourth step, even larger.
By the time you get to the last step, which is the delivery, we call it the bullwhip effect. A small
variation at the front end creates this huge swing of variation at the back end.” (NH Tr. 1797)
The next step is the outgoing primary processing, where mail is sorted to a destinating plant
based on the first three digits of the ZIP Code.15 This step needs to be completed by 11:00 p.m. to
align with the 24-hour clock. A second sorting is completed by midnight (NH Tr. 1798-1800).
“[A]t midnight, across the country, all this mail that's been collected, the mail that's received over
a retail operation, mail that you have put in your mailbox to be collected by the carriers, mail that
was inducted into our plant operations by any one of our mailers that have discounts, that so some
level of sort, all of that has to take place by midnight.” (NH Tr. 1800-01)
After the mail is sorted, it must be assigned to transportation by 2:00 a.m. “No wiggle-
room on in that. Trucks have to leave. Our entire surface network has been designed by the
transport time that it takes to go from point A to point B. Can’t bend time; can’t bend distance. . .
[T]his number is fixed in our operating window. By 2 o’clock we have to have that mail assigned.
. . [P]lanes and trucks have to leave on time. That is the mark that has to be made.” (NH Tr. 1801-
02)
Once mail reaches its destinating plant, the incoming processing begins. Mail arrives
throughout the day and night, but it must be processed by 3:00 a.m. because that is the time postal
employees start delivery point sequencing (DPS). DPS must be completed by 6:00 a.m. Priority
mail takes longer and is not sorted to DPS but is sorted to a specific post office. It must be finished
by 4:00 a.m., when trucks leave the destinating plant to transport mail to the post offices. Once the
day’s mail has arrived at the local post office, it must be delivered to the intended address by 6:00
p.m. that day (NH Tr. 1803-06). “[W]e want to get our carriers off the street by 6:00 p.m. And
that’s important because the trucks have to come back from the post office, back to the originating
15 “Destinating plant” is Postal Service nomenclature for the facility receiving mail that will be sorted and transported
to local post offices and from there delivered to its intended address.

27
processing plant so we can get cancellations done by 8:00 p.m., 80 percent of them.” (NH Tr.
1806)
Finances of the Postal Service
The Postal Service originated in 1775 when the Second Continental Congress appointed
Benjamin Franklin its first postmaster general. President George Washington signed the Postal
Service Act in 1792, creating the Post Office Department. It became a cabinet-level department
and transitioned to an independent agency in 1971 under the Postal Reorganization Act of 1970
(NH Tr. 1747-1750). In 2006 Congress passed the Postal Accountability and Enhancement Act
(PAEA) which, Williams stated, “created some business model changes for the Postal Service,
split our products into two product types, competitive products and market dominant products,
[and] placed some restrictions on pricing for market dominant products so that we could no longer
rise our rates beyond [the Consumer Price Index,] CPI.” (NH Tr. 1751)
The PAEA requires the Postal Service to prefund the Retiree Health Benefits Fund (RHBF)
annually. Williams stated this requirement “really is a millstone around the Postal Service’s neck
in terms of finances. The manner in which we’re required to prefund that obligation is one that I
don’t think the vast majority of companies or any other government agency is required to do.” (NH
Tr. 1751-52)
Jim Sauber of NALC16 agreed the prefunding obligation is “really the central driving force
of Postal Service’s finances. . . . Most companies just pay their retiree health premiums on a pay-
as-you-go basis for their current retires. This law added an additional obligation to the Postal
Service, not only to pay their existing retirees’ health and premiums, but to pay in advance, decades
in advance the cost of future retiree health benefits.” (NH Tr. 894-95) The Postal Service operated
at a loss in 2016, 2017, and 2018 (NH Tr. 890-93). 17
This prefunding mandate cost the Postal Service $9.1 billion in 2016, $4.3 billion in 2017,
and $4.5 billion in 2018. The year 2016 “was the last year in which the Postal Service was required
16 Jim Sauber is the chief of staff to the president of NALC since 2002, first for Bill Young (until he retired in 2009)
and then for Fred Rolandro. He manages NALC’s professional staff, which includes staff in the areas of politics,
legislation, communications and media relations, and research. Sauber is familiar with all publicly available
information about the Postal Service, the Postal Regulatory Commission, and the collective bargaining rights and
benefits programs of carriers (NH Tr. 871-74).
17 The parties stipulate, “In the following Fiscal Years, the Postal Service’s net loss was: 2016: $5.591 billion; 2017:
$2.742 billion, 2018: $3.913 billion.” (NH Exh. J-100, ¶ 3)

28
to prefund their retirees’ health, but also out of their own operating budget pay for current retirees’
health benefits. Starting in 2017 and going forward, they can now use the fund that they’ve set
aside for these prefunding payments, which . . . has nearly $50 billion in it.” (NH Tr. 896-97)
Since 2010 the Postal Service has been unable to meet the RHBF payments. “They have to
report it as an expense, but then it gets reported as an additional liability on their balance sheet.”
(NH Tr. 897) Because the Postal Service is a federal agency and not a private company, it cannot
file for bankruptcy. “So this has become the center of all the discussions about postal reform
legislation, is what to do, how to reduce or repeal this prefunding burden.” (NH Tr. 898) If the
unpaid amounts for the retiree health benefits were removed from the budget statements for 2013
to 2018, the combined operating income for those years would be $3.8 billion (NH Exh. C-135;
NH Tr. 899-903).
Sauber explained the retiree health benefit is not a debt owed to a third party.
[T]his is not like defaulting on your mortgage if you don't make these payments.
It's like if you're in tough times and you stop putting money into your kid's college
fund. It's a future obligation and a future liability that you're going to have, but
nonetheless it's out there and just by law Congress has decided that the Postal
Service and only the Postal Service -- no other private company has to do this, has
to prefund retiree health.
(NH Tr. 903-04)
The Postal Service is an agency of the federal government and, as such, does not file taxes.
It is required by the Securities and Exchange Commission to file annual 10-K reports (NH Exh.
C-131; NH Tr. 874-75). The Postal Service is funded entirely by the sales of postage and stamps—
it receives no revenue from federal taxes “with one small exception.” (NH Tr. 876) Market
dominant services (MDS), which include “letters, invoices, statements, [and] marketing mail,” are
items for which the Postal Service is the main provider (NH Tr. 877). The Postal Regulatory
Commission (PRC) permits the Postal Service to raise rates once a year for MDS, indexed to the
CPI (NH Tr. 878) The Postal Service increased rates in January of 2019 by 2.5 percent and
estimated it would “generate approximately $891 million in annualized income.” (NH. Tr. 881)
Congress also provides a “sort of safety valve” for circumstances where higher rate
increases are deemed necessary, called “exigent rate increases” that are “above and beyond the
CPI.” (NH Tr. 881-82). In 2011 or 2012, in the aftermath of the Great Recession, the Postal Service
experienced a severe drop in mail volume. It petitioned the PRC for a 4.3 percent exigent rate
increase above the CPI, which the PRC granted in December of 2013. The exigent increase was

29
temporary, staying in effect until the Postal Service recovered $4.6 billion. It expired in April of
2016 after meeting that goal (NH Tr. 882-83).
The Postal Service also raises revenue by offering competitive services in the categories of
priority mail, priority mail express, first-class package service, and parcel select. It has more
flexibility in setting the rates according to market conditions for competitive services (NH Tr. 883-
85). Sauber stated competitive services have given an economic boost to the Postal Service. “There
was a booming, booming growth in e-commerce, and so the demand was providing the ability for
the Postal Service to raise their rates. The demand was also raising their costs too, so that's in part
why they did these rate increases.” (NH Tr. 890) The Postal Service raises about $21.5 billion of
its annual $71 billion revenue from competitive services. In 2018, approximately 4 percent of the
total number of pieces carriers delivered were categorized as competitive services (NH Tr. 886-
67). In January 2019, the Postal Service implemented a 7.4 percent increase in its competitive rates
(NH Exh. C-131; Tr. 887).
Another anomaly of the Postal Service’s business model is its partnership with its direct
competitors. Williams stated, “[W]e rely on FedEx and we rely on UPS, but we also compete with
them. So in the package market there is a lot of competition, as you might imagine, with two big
package delivery companies like UPS and FedEx. So within the competitive product line, most of
the products and services are around packages.” (NH Tr. 1753) The Postal Service is committed
to meeting service standards for mail delivery, meaning the transit time for different types of mail
is predictable. First class mail has overnight, 2-day, 3-day, 4-day and 5-day service standards (NH
Tr. 1756). The Postal Service recognizes its customers rely on its promise to meet its service
standards for both business and personal reasons.
[W]e have a 2-day service commitment for first class mail if you're mailing within
a 6-hour drive time within the United States, 2-day service standard. You're
expecting to have that mail delivered in 2 days. If you're mailing a bill or if you're
synchronizing when you're mailing a birthday card to your mother, and you know
she lives within six hours of you, you know you've got 2 days to get that mail piece
delivered, the promise that we're making our customers through our service
standards.
And cataloguers plan their promotions around expected delivery times in
the home. They staff up their call centers expecting when we're going to deliver a
catalogue in somebody's home so that when you receive a catalogue, you're calling
up the call center and making an order.
So our customers are counting on us. Amazon is counting on us to make
their 2-day promise. Cataloguers are staffing up and counting on us to deliver

30
catalogues so that whatever product is being sold can be bought. And if you've got
personal correspondence, business correspondence or paying your bills, we've got
a promise that we're going to deliver on that promise. When those expectations
aren't met, our customers can get quite agitated, right. If you make a payment to
your mortgage and it's not received on time and you get hit with a late fee, that's a
major issue for our customers. If you staff up your call center and expecting a lot
of calls because you've entered product into one of our plants and we don't deliver
that timely, number one, you're not getting the sales that you're expecting. You've
paid for a lot of people to be in call centers that aren't taking calls.
(NH Tr. 1762-64)
For certain guaranteed types of mail, the Postal Service must refund the customer’s postage
if the mail is not delivered in the promised time, which, Williams stated, is a financial penalty.
However,
the bigger penalty for us is when customers use us and we don't deliver on the
promise that we're making, they go to alternative places, right? We're competing in
every single product line. It's not just the competitive products where people
traditionally see us as competing with United States Parcel Service or FedEx.
We're competing now with our own customers. We're competing with
Amazon. Amazon is creating their own delivery network. We're competing with
electronics. . . . If you go on any social media app, whether it's Facebook, whether
it's Instagram, whether it's email, you're getting hit multiple, multiple times by an
unlimited number of companies that are using electronic media to deliver their
message, whether it's a business message, whether it's a transaction, whether it's a
bill 	payment, 	bill 	presentment, 	advertising 	piece, 	if 	it's 	periodicals, 	online
periodicals.
So even within our market dominant products, we're competing in every
product, and service -- it's very hard to compete when somebody can deliver an
email to your account free and when they want. . . . But if we're not delivering on
our standards and we're losing customers, we call that churn, so churn is a term that
we use. Last year we lost $5.5 billion for customers that left us. About 1.8 billion
of that was because of service-related issues.
So when we're not delivering on service, promises that we're making when
we ink deals with some of the major e-commerce companies, they leave us. Some
of them left us this past Christmas season when we were having difficulties in
certain pockets of the country. We lost business because some of these e-commerce
companies diverted packages that we would normally have received and were
expecting to receive, they diverted them to some of our competitors.
(NH Tr. 1765-67)
NALC and Heat Stress Awareness
Manuel Peralta works in Washington, D.C., as the national director of safety and health for
the NALC. NALC, with approximately 295,000 active and retired members, is “the union that has
exclusive jurisdiction to represent city carriers throughout the country.” (NH Tr. 43)

31
In July of 2012, Peralta learned a carrier in Independence, Missouri, “had died, and it was
believed to have been related to the heat.” (NH Tr. 52) In December of 2012, the Secretary issued
a willful citation to the Postal Service for a § 5(a)(1) violation for exposing employees to excessive
heat. The Postal Service contested the citation and the case went to hearing in February of 2014.
Peralta attended the hearing presided over by Judge Peggy S. Ball. He observed the
testimony of the Secretary’s expert witness, Dr. Thomas Bernard (NH Tr. 52-54).18 Dr. Bernard’s
testimony inspired Peralta to address the issue of excessive heat exposure for carriers.
As a direct result of the testimony of the doctor and the Occupational Safety and
Health expert . . . I was stunned over what they explained, how it -- the heat affects
the body. . . . The steps that I personally took is, I started to speak with the Business
Agent, speak with the other officers, and determined that we had to learn more
about the heat, learn more about its effects, learn more about what do we have to
do as a craft to prevent our brothers and sisters from getting hurt. A few months
later, the judge issued her decision.19 And in reading her decision, I decided to start
writing articles where I specifically made reference to her findings and her opinion.
And I started to read more and more and more, including documents that came out
from NIOSH and recommendations, and started to put together information and
sending it more and more to the field.
(NH Tr. 55-56)
In response to increased awareness of heat stress, the Postal Service and NALC negotiated
a memorandum of understanding (MOU) in 2015 (NH Tr. 56, 59). Section 1 of the MOU addresses
training and provides:
New letter carrier employee orientation will include the heat stress training
identified below. Training will also be provided annually (no later than April 15)
to all employees, with regular reminders throughout the summer season by local
management.
LMS Course 10019802—Heat Stress Recognition and Prevention (Supervisors and
Carriers)
PowerPoint Presentation—Heat Stress Recognition and Prevention (Supervisors to
present to carriers). This program is designed as alternative training for those
employees without access to the online Learning Management System.
Heat Stress SDOM Video: http://blue.usps.gov/hr/safety/video/heat-stress.htm
18 Dr. Bernard testified in the national hearing of the Postal Service cases before the Court.
19 Judge Ball found the Postal Service committed a willful violation of § 5(a)(1) by exposing its employees “to
recognized hazards related to working outside during periods of excessive heat” and assessed a penalty of $70,000.
The Commission declined to direct the case for review, and the decision became a final order. United States Postal
Service, No. 13-0217, 2014 WL 5528391 (OSHRC Oct. 24, 2014). The Postal Service appealed to the United States
Court of Appeals for the Eighth Circuit, but voluntarily dismissed its appeal on May 28, 2015 (NH Exh. C-189).

32
Stand Up Talks and Info Pak Information (attached as an appendix).
(NH Exh. C-106, p. 3) The Postal Service did not make the heat stress training mandatory for
supervisors until May of 2018 (NH. Tr. 61).
The MOU was signed on May 5, 2015, and applies to the post office in Independence,
Missouri, but states, “While this Agreement applies solely to the Independence, Missouri, Post
Office, including its stations and branches, the parties recognize that heat abatement is an essential
element of on-the-job safety for city letter carriers in all locations where city letter carriers are
exposed to excessive heat.” (NH Exh. C-106)
The second section of the MOU addresses increased supervisory monitoring of carriers
when the heat index rises to 103°F:
2) Monitoring Employees
. . .
[T]o the extent practicable, management will increase contact with employees
performing street duties for the purpose of monitoring employees’ well-being on
days when the National Weather Service predicts a heat index (air temperature and
relative humidity combined into a single value) at or above 103°F. For purposes of
this agreement, the combination of air temperature and relative humidity at or above
103°F is deemed an “excessive heat day.” The chart below indicates the heat index
system used by the National Weather Service. [The NWS’s heat index chart is
depicted.]
(NH Exh. C-106; NH Tr. 147-51)
The MOU includes a section on work/rest cycles, again finding the heat index of 103°F to
be a triggering event for additional measures:
5) Work/Rest Regimen
On days where the National Weather Service predicts a heat index at or above
103°F, in addition to their regular scheduled break(s) and lunch break, city letter
carriers are encouraged to take additional breaks in designated climate-controlled
or shaded areas . . . when necessary to mitigate the impact of excessive heat.
Additionally, the parties understand and agree that it may be necessary for
individual city letter carriers to take additional breaks when the heat index is under
the threshold set above. Individual city letter carriers retuning from absence or
illness may be especially vulnerable to the effects of excessive heat, and therefore,
are especially encouraged to take necessary breaks pursuant to this paragraph. City
letter carriers taking an extra break under this provision, using their assigned MDD,
send a text message to their assigned facility at the MDD, send a text message to
their assigned facility at the beginning of the break (indicating the break location)
and another text message at the conclusion of the break. The parties understand and
agree that there may be circumstances where a city letter carrier taking a break
under this provision may not immediately report the breakthrough the MDD.

33
(NH Exh. C-106; NH Tr. 151-53)
In 2015, without input from NALC, the Postal Service implemented a heat stress awareness
program that supervisors communicated to carriers during standup safety talks (NH Tr. 62-63).
Peralta found the program to be “very shallow in the depth of information provided. . . . [I]t’s the
limitation of hydrate yourself, avoid certain things, but very little, and none that I remember on
acclimatization.” (NH Tr. 63) He also objected to the format of standup talks being used to
communicate the information, based on the 5 years he had worked as a carrier in California.
When I was a carrier in Anaheim, I remember being called together for standup
talks where the supervisor would read in the most monotonous, boring, uninspiring
tone what he was required to read. And it felt like they were making a little
checkmark on a piece of paper, telling you to finish up, go back to your case. It was
absolutely worthless. So I spoke up because I was very disappointed with the
quality of training. And that's one of the reasons that my president later volunteered
me for the safety committee.
(NH Tr. 63-64)
Peralta created a form entitled Initial Heat Injury Report and distributed copies to the local
union branches and posted it on NALC’s website (NH Exh. C-105; NH Tr. 65-67). The purposes
of the form are to track heat injuries and to assist injured carriers with claims under the Federal
Employee Compensation Act (NH Tr. 67). NALC developed yearly spread sheets to track the heat
injury reports (NH Exhs. C-107 (2015), C-108 (2016), C-109 (2017), C-110 (2018); NH Tr. 79-
88).
Peralta investigated many of the injury reports and found a pattern emerged.
[I]t surprised me how much pressure the employees were under to keep working. It
stunned me that it was a common denominator in most of the cases. Keep pushing
and pushing and pushing. We have a heat wave. We know we're affected by the
heat wave. . . . It was my understanding that the employees were suffering from
pressure to keep pushing forward. When I read the statements, in some of them it
was, "I called my supervisor. My supervisor told me to keep going in spite of a
standup talk that told us to recognize the symptoms. When we did call, we were
forced to keep going." And that happened a lot.
(NH Tr. 70-71) Eventually, Peralta became aware that carriers who suffered heat injuries were
subject to disciplinary procedures (Tr. 89, 96).
Peralta attributed the death of a carrier in Medford, Massachusetts, in July of 2015 to
excessive heat exposure (NH Tr. 102). He testified regarding the death of another carrier in
Woodland Hills, California, in July 2018 on a day when the temperature was 117°F. The carrier
“had been off duty for approximately three months. She had suffered an on-the-job injury. I believe

34
it was either a severely sprained or a broken ankle. She was on medication, off work for three
months. That Friday was her first day back.” (NH Tr. 104) Peralta discovered the Postal Service
had certified the deceased carrier had undergone heat safety training during a period of time when
she was not working.
[D]uring my meeting on May the 15th of 2018 with management, they also told me
every single letter carrier in the country will also undergo the LMS training for the
heat safety program that we audited in 2015. They specifically put, to me,
confirmation that 640,000 employees will undergo that training. Because I was very
doubtful that they were going to have everybody go. I said, are you talking every
single letter carrier? Well, we're not talking about individually, but in groups. Every
single letter carrier and every single supervisor. So as the facts revealed themselves,
I am provided with documents that indicated [the deceased letter carrier] was
certified as having gone through that training when she wasn't ever at work yet. Her
first day at work, she returns and dies, but they certified that she had gone through
that training weeks earlier, which was absolutely untrue. They were embarrassed,
and then they later, after the fact, corrected their records.
(NH Tr. 106)
LLVs and Air Conditioning
Dr. Thomas Bernard testified regarding the benefits of providing carriers with air-
conditioned vehicle.20 The Court found Dr. Bernard qualified, “based on his knowledge, skill,
experience, training, and education,” to testify as an expert “in the areas of industrial hygiene and
specifically regarding industrial heat stress.” (NH Tr. 808)
20 Dr. Thomas Bernard is a professor in the College of Public Health at the University of South Florida. He has taught
there for 30 years. He is the director of the university’s NIOSH- supported education research center (NH Tr. 793-
94). He earned a Bachelor of Science degree and a Master of Science degree in mechanical engineering from Carnegie
Mellon University and a PhD in occupational health from the University of Pittsburgh Graduate School of Public
Health (NH Tr. 795-98). He worked for a time for the United States Bureau of Mines in the post-disaster survival and
rescue section. Dr. Bernard worked for 11 years as a senior engineer at the Westinghouse Electric Research and
Development Center, focusing on heat stress management in the power industry (NH Tr. 795-96). At the University
of South Florida, he teaches master’s degree level students in, he stated, “classes related, broadly speaking, to
occupational health and safety, specifically a class in ergonomics, one in physical agents and controls. I teach a class
in occupational health and safety management systems and other administrative kinds of topics. . . . I've done a few
guest lectures in the intro to industrial hygiene, a couple of laboratory lectures, and I also have a few lectures in service
class for the college.” (NH Tr. 794)
Dr. Bernard is certified as an industrial hygienist and as a safety professional (NH Tr. 797). He is a fellow of
the American Industrial Hygiene Association (AIHA) and is on the Physical Agents Committee for ACGIH. He was
a Fulbright Scholar at the Loughborough University in London. He has published approximately 16 peer-reviewed
papers in the past decade, most of them on some aspect of heat stress, and has also contributed chapters to scientific
handbooks. Dr. Bernard presents talks and webinars to occupational health researchers and professionals on the topic
of heat stress. He has worked with private employers to develop heat stress programs for their employees (NH Tr.
799-802).

35
Dr. Bernard recommended air conditioning be provided in the carriers’ vehicles, and he
found it to be technically feasible (NH Tr. 823). The goal of a heat stress program is to reduce the
metabolic rate. An air-conditioned space is “more favorable to dissipating heat by sweat
evaporation[.] . . . [T]he air conditioning provides a less humid environment, so that's the thing
that really helps make it more favorable to evaporative cooling.” (NH Tr. 820) Carriers could take
breaks in their air-conditioned vehicles instead of spending time driving to air-conditioned rest
areas. Air-conditioned vehicles would also assist with the first aid response in the event a carrier
recognizes the onset of a heat-related disorder. “[A]n air-conditioned vehicle helps facilitate the
recovery so that it doesn’t progress into an incident.” (NH Tr. 823)
Han Dinh works for the engineering department of the Postal Service as its manager for
vehicle engineering (NH Tr. 314). He has a Master of Science and a Bachelor of Applied Science,
both in mechanical engineering (NH Tr. 316). He is “the chief technical advisor for the Postal
Service when it comes to vehicles. . . . [He is] responsible for the research, development,
technology, testing and evaluation, including the specifications for mail vehicles for the Postal
Service.” (NH Tr. 315).
Dinh testified the Postal Service introduced the LLV to its workforce in 1987 and the fleet
of over 200,000 vehicles was fully deployed by 1994 (NH Tr. 317, 347-48). In 2014, the Postal
Service began its Next Generation Delivery Vehicle (NGDV) project because by that time the
LLVs were from 20 to 27 years old and the costs to maintain and repair them were increasing.
“[T]he spare parts have been very hard, difficult to find because General Motors stopped making
the spare parts for the vehicle. . . . [The engineering department had] to actually design and rebuild
and make the new frame for the” LLVs (NH Tr. 320).
LLVs and NGDVs are purpose-built vehicles with right-hand driving. The Postal Service’s
engineering department convened a supply conference in 2015, attended by representatives from
Ford, General Motors, and Chrysler, among others (NH Tr. 321-22). The Postal Service issued a
statement of objectives (SOO) and subsequently selected the top six suppliers to build prototypes
meeting the SOO and to deliver them to the Postal Service by the end of September of 2017. The
Postal Service began testing and evaluating the prototypes, and that process continued at the time
of the national hearing (NH Tr. 323-26). Dinh stated the Postal Service is “planning to have the
vehicle go into production assembly lines in December 2021, if everything goes right.” (NH Tr.

36
332) Air conditioning was listed as “optional” at the supply conference, but the Postal Service
listed it as a requirement in the SOO (NH Tr. 337-38).
The SOO, updated November 20, 2015, by Dinh, provides:
The vehicles must have air conditioning/cooling systems sufficient to cool the
operator’s torso area when seated in the driving position with the driver’s window
open, so that the air temperature at the operator’s torso area is maintained at or
below 85 degrees Fahrenheit when the outside temperature is 120 degrees
Fahrenheit. Cooling is only required in the operator cab.
(NH Exh. C-161; NH Tr. 352-53)
Dinh explained the Postal Service has not committed to deploying air-conditioned vehicles
to its workforce but wanted to study its efficacy.
We wanted to study the feasibility of the air conditioning in the delivery vehicle
with the window open, with carriers getting in and out all the time. So the intent
behind to have a requirement in the SOO codified so that we can have a chance to
study whether we can efficiently cool the vehicle with everything open and we go
at the extremely low speed. And you probably are aware that all delivery vehicles,
from UPS, from FedEx, none of them have air conditioning today in their vehicles.
So we wanted to study it.
(NH Tr. 339-40)
Dinh explained the rationale for requiring the capacity for cooling the interior of the cab to
85°F when the outside temperature is 120°F.
My research at the time found out that when the outside temperature 120 degrees,
the maximum temperature they can achieve with the AC system is around 70
degrees at the vent where the AC vent is inside the vehicle. So we made an educated
guess at the time, if the vent temperature, the coolest temperature at the vent is
about 70 degrees and the torso area is far away from the vent because of heat loss
between where the vent is and the torso of the driver, so we made an educated guess
about 15 degrees. So by the time it gets to the torso with the heat loss -- heat
environment coming from the environment, the torso area probably at best can
achieve -- optimum temperature would be around 85 degrees. That's educated guess
of how the air conditioning system would -- could operate at the time.
(NH Tr. 353-54)
It is Dinh’s opinion that equipping vehicles with air conditioning is a matter of comfort,
and not safety, for the drivers (NH Tr. 367-68). He testified the Postal Service had not reached a
final decision on whether it would require its NGDV to be equipped with air conditioning (NH Tr.
341, 368-69).
Kevin McAdams works for the Postal Service in Washington, D.C., as its vice president of
delivery and retail operations. He agreed with Han Dinh that air conditioning is a matter of comfort,

37
not safety, and the ubiquity of air conditioning in contemporary vehicles reflects a societal shift in
lifestyle. “What's different today is air conditioning as a comfort feature has become like satellite
radio, right? You don't have a tape deck anymore. It's just standard equipment. . . . So that decision
is really – society has made that decision. The car manufacturers have made that decision for us.
But in 1980 that was not an unusual decision [to drive a vehicle without air conditioning].” (NH
Tr. 2098-99)
Dr. Aaron Tustin testified regarding the temperatures inside LLVs.21 The Court determined
Dr. Tustin was qualified to provide expert testimony “regarding occupational medicine in general,
heat stress exposure assessments, and the epidemiology of occupational heat-related illnesses.”
(NH Tr. 254)
Dr. Tustin concluded the interiors of LLVs were hotter than the outside air temperature
after reviewing a report entitled Postal Vehicle Temperature Test Phoenix District Safety Office
2005 (NH Exh. C-151; NH Tr. 299). The Phoenix report explained the setup and process for the
Phoenix test:
The test set-up consisted of taking temperature readings on three days when the
temperatures were above normal in the Phoenix area. The first test was to get
baseline data on temperatures in a Long Life Vehicle (LLV) with readings on dew
point, heat index, percent relative humidity and the outside air temperature on May
19th, 2005. The follow up testing, on May 20th, consisted of gathering data points
comparing two LLV side by side measuring one LLV with windows up and the
other LLV with windows down 1½ inches to quantify the difference in temperature.
21 In 1998, Dr. Aaron W. Tustin received a Bachelor of Science degree in physics from the Massachusetts Institute of
Technology. He received a Master of Science degree in astronomy from Harvard University in 2000 (NH Tr. 229).
After working for a time in the private sector, Dr. Tustin attended Vanderbilt University Medical School and received
a medical degree in 2012 (NH Tr. 230). After completing a year of residency at Johns Hopkins Hospital, he went to
Peru for a year to conduct research in epidemiology and biostatistics for the University of Pennsylvania (NH Tr. 231).
He then completed a two-year residency program in occupational and environmental medicine at Johns Hopkins
Bloomberg School of Public Health and received a master’s degree in public health in 2015 (NH Tr. 233-34). Dr.
Tustin is board certified in occupational medicine and is a member of the American College of Occupational
Environmental Medicine (ACOEM). He serves as an adjunct assistant professor at the Uniform Services University
of Health Sciences (NH Tr. 236-38).
In August 2016, Dr. Tustin began working in Washington, D.C., as a medical officer for OSHA’s Office of
Occupational Medicine and Nursing (OOMN) (NH Tr. 226). He described OOMN’s priorities as (1) “supporting
OSHA field officers with their investigations” as expert consultants; (2) reviewing annual medical exams of CSHOs
to assess their fitness for duty; and (3) “analyzing OSHA’s internal data to try to improve [OOMN’s] guidance that
we give to workers and employers.” (NH Tr. 226-27) Dr. Tustin has conducted research and written approximately a
dozen peer-reviewed published articles relating to occupational health, including articles published in The Journal of
Occupational and Environmental Medicine, The Journal of Occupational and Environmental Hygiene, and Morbidity
and Mortality Weekly Report (MMWR), published by the Centers for Disease Control and Protection (CDC) (NH Tr.
240-47). He has lectured at medical conferences, including the American Occupational Health Conference (AOHC)
and the National Occupational Injury Research Symposium (NOIRS) (NH Tr. 247-50).

38
Additional testing was performed on May 23rd gathering data on temperatures on a
static Ford Windstar and 2-ton delivery vehicle; both vehicles closed with windows
up. The hypothesis was designed to take accurate measurements of the temperature
in postal delivery vehicles to answer the question “Are vehicles any cooler with the
windows down 1½ inches opposed to windows closed?” The hypothesis was further
tested to find out if the vehicle inside temperature increased 75% within the first 5
minutes and 90% of the temperature increase occurred within 15 minutes.
(NH Exh. C-151, p. 1)
The report summarized the Phoenix test results:
The following conclusions were made from the analysis of the series of tests to
compare the rate of rise of temperature in static postal delivery vehicles:
The temperature reached a maximum of 122 degrees inside the LLV at 5 p.m. when
the temperature was 101 degrees outside; a temperature differential of 21 degrees.
The temperature rose only 4 degrees in the first 5 minutes and 10 degrees within 15
minutes. This did not verify the hypothesis of 75% temperature increase in the first
five minutes nor 90% within fifteen minutes. However, the hypothesis did not take
into account the constant rise of the outside air temperature during the day. The
temperature on the test day ranged from 86 degrees at 10 a.m. to 101 degrees at 5
p.m.
The side by side test of two LLV’s comparing temperatures with the windows
closed in one LLV and the windows down 1½ inches in the other show very small
difference. The results show that at the maximum temperature the difference in
temperature was only 2½ degrees. This equates to only a 2% difference in
temperature.
. . .
In conclusion, this testing shows that having windows down in a parked LLV does
not make a significant impact on the inside temperature.
(NH Exh. C-151, p. 3)
Dr. Tustin summarized the results of the temperature test:
They put temperature sensors inside an LLV, both with the windows completely
closed and also with the windows cracked open about an inch and a half, and they
were comparing the interior temperature to outside temperature. I believe they had
several conclusions, but some of the main conclusions that I take away from this
were that the interior temperature was always hotter, at least 5°F hotter, than the
outside conditions.
(NH Tr. 299-300)
On cross-examination, Dr. Tustin conceded the test was conducted in LLVs parked in
direct sunlight in a parking lot in Phoenix, Arizona, with the doors closed and the windows either
closed or open 1.5 inches. It took an hour for the interior temperature to increase 21°F, and the
interior temperature reached 122°F after the LLV sat in direct sunlight for 7 hours. Dr. Tustin

39
agreed he could not think of an example in any of the five Postal Service cases where a carrier left
an LLV parked in direct sunlight for an hour or more (NH Tr. 650-52). He also acknowledged the
Phoenix test did not factor in any cooling effects from a carrier opening the door to reenter the
LLV and driving it with the windows down to the next park point (Tr. 653-54).
The Postal Service hired Rodman Harvey as a consultant in the five cases before the
Court.22 The Court qualified Harvey to testify as an expert “in industrial hygiene, with specialized
expertise in assessing the risk of exposure to excessive heat, based on his knowledge, skill,
experience, training, and education.” (NH Tr. 2766)
Harvey found the Phoenix test report to be unreliable. “In reviewing the document, there's
errors with regard to definitions of terms. There's nonsensical statements about temperatures
increasing by a certain percentage point. There's representations in the conclusions that don't
appear to be supported by the testing that was done. And the testing conditions were not very
rigorous in terms of standardization or trying to standardize other variables.” (Tr. 2838)
Harvey elaborated on the errors he found in the report:
Q.: You mentioned definitions. Can you be specific about what you found with
regard to the definitions?
Harvey: Yeah. On page 4 of that document, there's a section called "Definitions".
And it has a definition for "heat stress" and then in parentheses it says, "heat index".
And then the definition is primarily a definition of heat index and has nothing to do
with heat stress, which is the primary word or phrase being defined.
Q.: Mr. Harvey, I notice on the first page of the document, which is marked
0001085, in the first paragraph, there's a reference to "hypothesis" and then it's got
75 percent and 90 percent. What does that sentence mean?
Harvey: I have no idea what it means. It talks about the hypothesis that the
temperature increased 75 percent in a certain period or 90 percent, but the
temperature is not an absolute scale. So you can't compare two different
temperatures using percentages. For instance, 60 degrees Fahrenheit is not twice as
hot as 30 degrees Fahrenheit. So I don't know what the hypothesis was or what they
were trying to test.
22 Rodman Harvey is the director of client services for Carnow Conibear & Associates, an environmental health and
safety consulting firm in Chicago. He manages the company’s industrial hygiene group (NH Tr. 2750-51). Harvey
received a bachelor’s degree in biology from Lawrence University in 1983, and a master’s in environmental
engineering in 1986 from the Illinois Institute of Technology (NH Tr. 2745). He is a certified industrial hygienist (NH
Tr. 2747-49).

40
Q.: I believe that the document describes – I guess what I would call the testing
conditions for the various vehicles. Did you find any flaws in the testing methods?
. . .
Harvey: [I]n describing the methods when they tested the LLVs, they made a point
to point out that the LLVs were both pointing south so that the effect of the sun
would be the same on each. And then later they test two other vehicles and one was
pointed to the south and one was pointed to the west. So the effect of the sun would
be completely different.
Q.: If you look at the first chart or graph or whatever it is on the first page, which
begins 0001085, is this trying to tell us the temperature with windows open or
windows closed, or what is this trying to communicate? Based on your review of
this.
Harvey: I don't know that I can tell the condition of the LLV from what's written
here.
(NH Tr. 2838-40) 23
Form 3996 and Time Pressure
Jennifer Thi Vo works as the Postal Service’s director of city delivery (NH Tr. 2583). She
has worked for the Postal Service for 25 years and has held a variety of positions, including post
office supervisor (NH Tr. 2584). She oversees all work aspects of city carriers and the
approximately 143,000 routes on which they deliver. The Postal Service employs approximately
161,000 full-time city carriers and 2,800 part-time employees, plus approximately 44,000 CCAs
(NH Tr. 2587-88).
23 The Court finds the Phoenix test report to be unreliable and accords it no weight. In addition to the flaws pointed
out by Rodman Harvey, the record establishes the Phoenix testing conditions do not reflect the actual working
conditions of carriers who drove LLVs in Benton, Arkansas.
The Court does credit the testimony of the carriers in this proceeding who testified temperatures in the
interiors of LLVs are hotter in the summertime than outside temperatures. The evidence, however, falls short of
establishing the existence of an excessive heat hazard in LLVs in this case for two reasons. First, there is no evidence
in the record verifying the accuracy of the carriers’ subjective estimates of the LLVs’ increased interior temperatures
in comparison to the outside temperatures. There is, therefore, no evidence establishing the magnitude of the increase
in the interior temperatures of the LLVs on the days referred to by the carriers.
Second, the Citation alleges the Postal Service employees were exposed to hazards “while walking and
delivering mail in an outdoor environment.” (emphasis added) The testimony of the carriers establishes the conditions
that make driving an LLV uncomfortable and potentially hazardous (including the greenhouse effect created by the
large windows and the engine heat rising from the floor) are separate from the conditions attendant to delivering mail
outdoors on foot. “The Secretary must draft a citation ‘with sufficient particularity to inform the employer of what he
did wrong, i.e., to apprise reasonably the employer of the issues in controversy.’ Alden Leeds, Inc. v. OSHRC, 298
F.3d 256, 261 (3d Cir. 2002) (quoted case omitted); see 29 U.S.C. § 658(a) (requiring that citations “describe
with particularity the nature of the violation”).” L & L Painting Co., Inc., No. 05-0050, 2008 WL 4542427, at *4
(OSHRC September 29, 2008). The Court concludes evidence relating to the alleged hazard of excessive heat or high
heat levels in LLVs is not probative of an alleged excessive or high heat hazard related to working outside.

41
Vo has experience as a post office supervisor receiving Form 3996 requests from carriers
due to predicted hot weather. She explained the process she used with the requesting carriers to
determine whether she approved or disapproved the requests.
I supervised in Memphis during the summer of 2014. . . . [I]t's hot, so on
the 3996 they asked for overtime based on the heat. . . . What I looked at and what
I try to teach is that each one of the 3996s are different because the employees are
different and the routes are different. So the first one that I disapproved was for 30
minutes and it had heat. The conversation with the employee is that they leave their
route at 10:00 o'clock and then usually are back by 4:00. But that day they were
leaving at 9:30, so they're leaving an extra half an hour early. So the conversation
that I would have is, "I'm disapproving your 3996. You asked for 30 minutes
"O[vertime]" due to the heat. I do think that you might take the 30 minutes but
you're leaving a half an hour earlier. I'm not going to give you any extra work." So
I would disapprove that.
The second one might be different. 30 minutes, and I remember this one.
He asked for 30 minutes. He was leaving on time, so he's leaving at 10:00. He's
supposed to leave at 10:00. He put heat, but his building, his route is 95 percent in
the building. It's in the Civic Center, which is air-conditioned, which the heat should
not affect it. But usually what I did on that was I disapproved the 30 minutes. I gave
him 15 minutes and told him that I would approve it. Use it if he needs it. If he
needs more, let us know. But that's the conversation.
The last two we approved because they were out on the street. They were
leaving at the same time, so we went ahead and approved it.
On those three cases, none of those employees worked overtime. It's really
about the communication and talking to them. If they need it, they need it. If they
don't -- 3996 is just a form to kind of determine if you need something.
It's going to change once you get on the street. It might be that they used 35
minutes. It might be they used 15 minutes, but every single form is not the same,
every route is not the same and every carrier is not the same.
So that supervisor is really the key because they're the ones that are talking
to employees every day. . . . [Form 3996 requests are] made at the beginning of the
day, but all of the stations and branches usually have a requirement to call by a
certain time. So if you know -- so at my stations, they're required to call at 3:00
o'clock. So they know -- it doesn't mean wait until 3:00 o'clock to call. It means that
as soon as they find out that there's an issue there, give us a call.
We have three options. The supervisors that pick up the phone have three
options when they call. The first option is go ahead and use the overtime. Second
option is I'll send you some help. And the third option is bring back the mail.
Now, there's situations. Just like there's different carriers, there's different
supervisors out there that's going to need training and stuff that will just say,
"Continue going." If it's going to continue going, they have approved that overtime.
(NH Tr. 2597-2600)
When asked if it is proper procedure if a supervisor “just had their employees put a 3996
in a folder, doesn’t look at them, disapproves them,” Vo responded, “It would be. . . . A 3996 is—

42
if it doesn’t get approved or disapproved, it’s automatically approved. So if you put in a request
for overtime and the supervisor doesn’t address it or any point, then the overtime’s approved.”
(NH Tr. 2672) 24
Vo testified a carrier’s medical condition could affect the time needed to complete a route
(NH Tr. 2636). When a carrier notifies the post office in the morning he or she is not feeling well,
the supervisor can allow extra time for overtime or assign part of the route as a pivot. If a carrier
is on the street and calls to say he or she is not feeling well and may require extra time to complete
the route, Vo stated, “We usually won’t have an issue with that.” (NH Tr. 2637)
On cross-examination, Vo was asked about testimony from carriers in the local cases
indicating their supervisors consistently discouraged them from submitting Forms 3996 or taking
lunch or breaks due to hot weather. She responded, “So what I heard from the testimony is that the
employees felt they were pressured to be done on time. And I don't see that to be the case of my
experience and what I see as in data. These looked like isolated incidents. But I don't see -- I haven't
seen any factual, just what I've heard on it. But I don't think that that is representative of the Postal
Service.” (NH Tr. 2728)
Vo presents an idealized description of conversations between supervisors and carriers
regarding Form 3996 requests. The pleasant, civilized discussions she envisions, based on mutual
respect between carriers and supervisors are not, however, the norm. Rather than being “isolated
incidents” when “employees felt they were pressured to be done on time,” the records in the five
Postal Service cases, across five cities, demonstrate rural and city carriers experience near-constant
pressure to complete their routes faster and to discourage them from taking breaks, reporting
injuries or illnesses, or calling in sick. In this case, carriers testified at length that when they
submitted 3996 forms, supervisors reacted by acting “domineering,” belligerent,” “intimidating,”
and “confrontational,” and they “degraded” the carriers. Supervisors also encouraged carriers to
skip breaks and harassed carriers who called in sick or did not respond to phone calls on their days
off (Tr. 78-79, 85-86, 109-11, 139-40, 149, 164, 369). The Court agrees with Peralta’s opinion
regarding the attitude of the Post Office to its carriers. “[I]t surprised me how much pressure the
employees were under to keep working. It stunned me that it was a common denominator in most
of the cases. Keep pushing and pushing and pushing.” (NH Tr. 71)
24 The carriers in the five Postal Service cases did not appear to be aware that Form 3996 overtime requests were
automatically approved if a supervisor failed to address the requests.

43
Dr. Bernard testified carriers are influenced by the corporate culture of the Postal Service
to prioritize productivity. “[T]here seems to be a dance where I ask for extra time with a form 3996
. . . and [the forms will] sit on a desk, and so it becomes an effective denial. . . . [T]here's pressure
that comes down . . . to the senior supervisor in an office down to the first-line supervisors to the
employees about the need to meet these goals. And I mention it from the dance point of view is
there was no evidence that people were punished on taking more time, but there was certainly this
culture of discouraging, you know, that was there.” (NH Tr. 847-48) He stated carriers who in
2016 did report heat stress symptoms “were nonetheless encouraged to continue their routes.” (NH
Tr. 945) Even though supervisors received heat stress training, “they still had the emphasis on
productivity versus trying to make sure that there was an early identification of signs and
symptoms and early first aid.” (NH Tr. 947)
In each of the five local cases, supervisors exhibited dismissive or disparaging attitudes
towards the carriers. Here, as in two of the other local cases, it was a homeowner who happened
to notice and respond to the carrier’s distress after his messages sent to the Benton Post Office
went unanswered. To discourage requests for overtime or sick leave, supervisors intimidated,
belittled, and, in at least once instance, bullied carriers, creating an atmosphere of disquiet and
suspicion. These cases reveal a pervasive culture of mistrust and skepticism on the part of postal
supervisors regarding reports of injuries or illnesses made by carriers. The supervisors’
indifference and the carriers’ reluctance to engage in confrontational conversations with
management contribute to the stress already inherent in meeting the unforgiving demands of the
24-hour clock.
VII. THE CITATION
The Secretary’s Burden of Proof
To establish a violation of the general duty clause, the Secretary must prove: “(1) a
condition or activity in the workplace presented a hazard; (2) the employer or its
industry recognized the hazard; (3) the hazard was causing or likely to cause death
or serious physical harm; and (4) a feasible and effective means existed to eliminate
or materially reduce the hazard.” S. J. Louis Constr. of Tex., 25 BNA OSHC 1892,
19 1894 (No. 12-1045, 2016).
Quick Transp. of Arkansas, LLC, No. 14-0844, 2019 WL 33717, at *2 (OSHRC March 27, 2019).
“The Secretary also must prove that the employer ‘knew, or with the exercise of reasonable
diligence could have known, of the violative conditions.’ Tampa Shipyards Inc., 15 BNA OSHC

44
1533, 1535 (No. 86-360, 1992) (consolidated).” A.H. Sturgill Roofing, Inc., No. 13-0224, 2019
WL 1099857, at *2 (OSHRC Feb. 28, 2019).
Alleged Repeat Violation of § 5(a)(1)
Item 1 of Citation No. 1 alleges,
OSH ACT of 1970 Section 5(a)(1): The employer did not furnish employment and
a place of employment which were free from recognized hazards that were causing
or likely to cause death or serious physical harm to employees in that employees
were exposed to excessive heat while delivering the U.S. mail. Such exposure(s)
may lead to serious and life-threatening heat-related illnesses such as heat stroke or
heat exhaustion.
On or about June 10, 2016, at job sites located on mail routes for the Benton Post
Office, in and around Benton, Arkansas, employees were exposed to the hazard of
excessive heat while walking and delivering mail in an outdoor environment.25
A. Existence of a Hazard
1. Exposure to Excessive Heat Did Not Cause LC-1’s Illness
The first element the Secretary must prove to establish a § 5(a)(1) violation is: “A condition
or activity in the workplace presented a hazard.” The alleged violation description (AVD) of the
Citation identifies the workplace at issue as the “outdoor environment” in Benton, Arkansas,
through which the city carriers walked as they delivered mail on their routes. The Citation
identifies the hazard presented as “excessive heat.” The AVD does not identify the “condition or
activity” that presented the hazard. The implication is the condition presenting the hazard of
excessive heat is hot weather, but the AVD does not specify at what temperature weather is “hot,”
and it does not include the high temperature or heat index for June 10, 2016.
Heat Stress Hazards
The Secretary called Dr. Aaron Tustin to testify regarding excessive heat exposure. He
explained heat stress results from a combination of a person’s metabolic heat and environmental
heat. Metabolic heat is generated by the human body and environmental heat results from sources
25 At the beginning of the hearing, counsel for the Postal Service requested a standing objection “to any reference of
the hazard in this case as being anything other than excessive heat, which is the terminology used in the citation.” (Tr.
17) The Secretary was not opposed, and the Court granted the Postal Service’s request for a standing objection to “any
reference to the hazard as being anything other than excessive heat.” (Tr. 18) At the national hearing, the Court ruled
that in the context of the five Postal Service cases, references to “excessive heat,” “heat stress,” or similar formulations
are “all the same issue regarding the § 5(a)(1) citations that have been alleged.” (NH Tr. 1339) The Commission has
also recognized these phrases are interchangeable in the context of § 5(a)(1) cases alleging exposure to the hazard of
excessively high temperatures. See Duriron Co., Inc., No. 77-2847, 1983 WL 23869 (OSHRC April 27, 1983) (“heat
stress,” “excessive heat,” “extreme heat”); Industrial Glass, No. 88-348, 1989 WL 88787 (OSHRC April 21, 1992)
(“heat stress,” “excessive exposure to heat”).

45
outside the body. Sources of environmental heat include air temperature, relative humidity, radiant
heat, and air movement. Humidity is the concentration of water vapor in the air. Radiant heat is
generated by electromagnetic waves, such as direct sunlight (NH Tr. 255-57). Sunlight is
“radiation that is striking the worker. So moving from the shade into the sunlight, even if the air
temperature doesn’t change, you’ll be struck by the radiant heat so it can feel hotter.” (NH Tr. 258)
The NWS uses the heat index to combine air temperature and relative humidity as a single
metric. “What it’s doing is accounting for two of the main environmental factors. . . . If the
humidity rises, the heat index rises for a given temperature. So it’s assessing how it feels to a
worker.” (NH Tr. 274)
The most serious illness caused by heat stress is heatstroke, which causes a dysfunction of
the brain. Symptoms include slurred speech, disorientation, confusion, unconsciousness, or coma.
Heatstroke causes an elevated body temperature, generally defined as 104 or 105°F (NH Tr. 259).
Heat exhaustion is a less severe result of heat stress. Its symptoms may include headache, nausea,
vomiting, dizziness, and profuse sweating. Heat exhaustion does not result in an elevated body
temperature or brain dysfunction (NH Tr. 260). Dr. Tustin stated the symptoms of heat exhaustion,
either separately or in combination, are also symptoms of other conditions and their presence may
be unrelated to heat (NH Tr. 538-541). Unlike heat stroke, there is no diagnostic test for heat
exhaustion (NH Tr. 536). Less severe conditions caused by heat stress include heat cramps, heat
rash, and heat syncope (fainting) (NH Tr. 261).
LC-1’s Diagnosis
The collapse, hospitalization, and diagnosis of heat exhaustion of LC-1 were the events
that triggered OSHA’s inspection and subsequent issuance of the Citation in this proceeding. LC-
1’s doctors later determined his diagnosis of heat exhaustion was incorrect. The symptoms LC-1
manifested on June 10, 2016, were a result of vertigo; his illness was labyrinthitis. Dr. Tustin
conceded he could not state within a reasonable degree of medical certainty that LC-1’s illness
was caused by exposure to excessive heat (NH Tr. 409, 682-761). Dr. Shirley Conibear concurred
with this opinion (NH Tr. 3014). 26
26 Dr. Conibear is the president of Carnow Conibear & Associates. She received a medical degree in 1976 and a Master
of Public Health degree. She is board-certified by the American Board of Preventive Medicine and Occupational
Medicine (NH Tr. 2967-68). She is president and part owner of Carnow Conibear & Associates. She owns its sister
company OMS, where she works as a senior physician, performing physical exams and fitness-for-duty evaluations
in regulated entities (NH Tr. 2972-73). She also supervises “athletic trainers who are embedded in industry, using
what’s called the industrial athlete model.” (NH Tr. 2974) Dr. Conibear is an adjunct professor at the University of

46
The fact the incident cited in the AVD turns out not to have been caused by the cited hazard
does not disprove the alleged violation.
Proof that a cited activity actually caused harm or necessarily could have caused
harm under the precise physical conditions that happened to be present at the time
of the violation, or at any other specific time, is not required. See Bomac Drilling,
9 BNA OSHC 1682, 1691-92 (No. 76-450, 1981) (consolidated) (“Under section
5(a)(1) case law, the ‘hazard’ that must be “recognized' is not a particular set of
circumstances at a specific location and specific point in time but rather the broader,
more generic or general hazard.”), overruled on other grounds by United States
Steel Corp., 10 BNA OSHC 1752 (No. 77-1796, 1982); Brennan v. OSHRC, 494
F.2d 460, 463 (8th Cir. 1974) (Secretary need not prove general hazard was cause
of the accident that gave rise to the citation); Beverly Enters., 19 BNA OSHC at
1171 (same).
Quick Transp. of Arkansas, 2019 WL 33717, at *3.
2. Judge Ball’s 2014 Decision in United States Postal Service
Even though the Secretary is not required to establish excessive heat caused the illness of
LC-1 on June 10, 2016, it is still his burden to prove the temperature or heat index that day exposed
Benton city carriers to the hazard of excessive heat. In support of his position, the Secretary cites
Judge Ball’s 2014 decision finding a willful violation of § 5(a)(1) in United States Postal Service,
2014 WL 5528391. The Secretary states, “On facts similar to those presented here, Judge Ball
found that there was ‘no real dispute’ that letter carriers in Independence, Missouri, were exposed
to the hazard of excessive heat.” (Secretary’s brief, p. 21, n. 20) 27 In this case, however, the Postal
Service vigorously disputes the temperature or heat index on June 10, 2016, presented a hazard to
Benton’s carriers, and consequently the record evidence differs markedly from that of the
Independence case.
As an unreviewed ALJ decision, the Independence United States Postal Service case is not
Commission precedent. “[R]eliance on an unreviewed administrative law judge decision involving
Illinois and is on the Resident Advisory Committee there (NH Tr. 2982). For almost a decade, she was the director of
programs and medicine in the educational resource center, “which NIOSH established to train nurses, safety
professionals, industrial hygienists, and physicians in occupational health and safety.” (NH Tr. 2984) She is a member
of the National Advisory Committee for Occupational Safety and Health (NACOSH) (NH Tr. 2985).
The Court determined Dr. Conibear was qualified, based on her knowledge, skill, experience, training, and
education, to testify as an expert “in occupational medicine, with specialized expertise in heat stress and abatement
measures that may materially reduce the hazard of excessive heat.” (NH Tr. 3013)
27 The decision states, “For the most part, it appears Respondent does not contest the existence of a violation of the
general duty clause—almost all of Respondent’s brief is directed towards the willful characterization. . . . There is no
real dispute that [Independence carriers] were exposed to extreme heat on July 23 and 24, and that such heat was a
hazard.” United States Postal Service, 2014 WL 5528391, at *14.

47
a citation under § 5(a)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(1) [is]
misplaced. 	See Leone 	Constr. 	Co., 	3 	BNA 	OSHC 	1979, 	1981 	(No. 	4090, 	1976)
(unreviewed administrative law judge decision does not constitute binding precedent for the
Commission).” TNT Crane & Rigging, Inc., No. 16-1587, 2020 WL 1657789, at *7 (OSHRC
March 27, 2020). A case decided by the Commission last year involving a citation under § 5(a)(1)
for exposure to excessive heat is, however, binding precedent for this Court.
3. The Commission’s Decision in A.H. Sturgill Roofing, Inc
On February 28, 2019, the Commission issued a decision in a case involving an employee
who collapsed at a worksite and subsequently died from complications of heat stroke after working
on a roofing project. A.H. Sturgill Roofing, Inc., No. 13-0224, 2019 WL 1099857 (OSHRC Feb.
28, 2019). Commissioner (now Chairman) Sullivan, with then-Chairman MacDougall concurring,
vacated two items alleging serious violations that had been affirmed by the judge in the underlying
case. Commissioner Atwood dissented. Of interest here is Item 1 of the citation, alleging a serious
violation of § 5(a)(1) for exposing employees “to the hazard of excessive heat from working on a
commercial roof in the direct sun.” Id. at 2019 WL 1099857, at *1.
The roofing project Sturgill was working on involved tearing off the old roof of a flat-
topped bank building in Ohio so a new roof could be installed. The crew included three temporary
employees.
One of the temporary employees was “MR,” a 60-year-old man with various
preexisting medical conditions, including hepatitis C and congestive heart failure.
It was the first day that MR was assigned to work at Sturgill. He began work that
day at 6:30 a.m. and was tasked with standing near the edge of the roof where other
employees brought him a cart full of cut-up pieces of roofing material that he then
pushed off the roof into a dumpster below. The assignment of this work was
intentionally made by Foreman Leonard Brown because it was MR's first day on
the project. When MR began his work, the temperature was approximately 72°F
with 84 percent relative humidity. There is no dispute that Brown encouraged all
employees to utilize the immediate access to ice, water, rest, and shade, without
fear of reprisal.
At around 11:40 a.m., after other employees reported being concerned about
MR to Brown and Brown himself observed him “walking like clumsy,” MR
collapsed and began shaking. The temperature at that point was approximately 82°F
with 51 percent relative humidity. Emergency medical personnel were summoned,
and they took MR to the hospital where his core body temperature was determined
to be 105.4°F. MR was diagnosed with heat stroke and died three weeks later.
According to the coroner, his death was caused by “complications” from heat
stroke.

48
Id. at 2019 WL 1099857, at *1-2. The Commission found the Secretary failed to establish “the
existence of a hazard likely to cause death or serious physical harm.” Id. at 2019 WL 1099857, at
*3.
4. Is “Excessive Heat” a Cognizable Hazard Under § 5(a)(1)?
The Postal Service argues that in A.H. Sturgill, the Commission found “excessive heat” is
not a cognizable hazard under the general duty clause. In her concurring opinion, Chairman
MacDougall questioned the meaning of the cited hazard:
In this case, what is meant by “excessive heat?” Is it the heat index the judge
formulated by adding 15 degrees to the ambient temperature, or the heat index that
would result from adding 10 degrees to the ambient temperature since the foreman
said it felt about that much hotter on the roof, or some combination of factors
perhaps set forth in OSHA’s website publication regarding “Occupational Heat
Exposure”? To pose the question is to answer it. By defining the hazard merely as
“excessive heat,” the Secretary has failed to point to any specific, concrete
environmental conditions, and has instead effectively defined the hazard as a
sliding scale of possibilities. This open-ended, moving target is not a cognizable
hazard under the general duty clause as it provides insufficient notice to the
employer of exactly what it is required to free its workplace from to protect its
employees.
Id. at 2019 WL 1099857, at *15.
In a footnote to the lead opinion, Commissioner Sullivan (now Chairman) agreed “with the
concerns expressed by Chairman MacDougall in her concurring opinion in connection with
defining the hazard in this case as ‘excessive heat.’” Id. at 2019 WL 1099857, at *7, n. 14.
Contrary to the Postal Service’s argument, this agreement does not establish that a majority
of the Commission conclusively found “excessive heat” is not a cognizable hazard under the
general duty clause. This reference to defining the hazard is the only one in a lengthy footnote on
foreseeability, and its vague reference to “the concerns expressed by Chairman MacDougall” is
insufficient to constitute a dispositive conclusion that a citation under § 5(a)(1) alleging exposure
to “excessive heat” will always fail due to lack of fair notice to the employer.28 If Commissioner
28 In its entirety, footnote 14 in A.H. Sturgill states:
While the Commission has never held that certainty as to the threshold level for injury is a
prerequisite to a general duty clause violation, see Beverly Enters., Inc., 19 BNA OSHC at 1172,
knowledge of the “significant risk of harm” cannot be based on the hidden characteristics of an
“eggshell” employee; the risks resulting from such characteristics do not fit within the confines of
a realistic possibility or the consideration of the best available evidence. See Pratt & Whitney, 649
F.2d at 104 (the Act “is intended only to guard against significant risks, not ephemeral
possibilities”).

49
Sullivan’s agreement with Chairman MacDougall’s “concerns” constituted a majority opinion that
“excessive heat” is not a cognizable hazard, there would be no need for a concurring opinion or
for most of the analysis in the lead opinion. The Court determines the Commission has not held
absolutely that “excessive heat” is not a cognizable hazard under the general duty clause. The cited
hazard is, however, difficult to establish under A.H. Sturgill.
5. Significant Risk of Harm
To establish a cited condition or activity presents a hazard in the workplace, the Secretary
must prove the condition or activity
exposed employees to a “significant risk” of harm. See Beverly Enters., Inc., 19
BNA OSHC 1161, 1170-1172 (No. 91-3144, 2000) (consolidated); see also Pratt
& Whitney Aircraft v. Donovan, 715 F.2d 57, 63 (2d Cir. 1983) (holding that a
“significant risk” of harm can 	be 	established 	by 	showing 	a 	“meaningful
possibility” of injury); Titanium Metals Corp. v. Usery, 579 F.2d 536, 541 (9th Cir.
1978) (the possibility of harm resulting must be “upon other than a freakish or
utterly implausible concurrence of circumstances”); Nat'l Realty & Constr. Co. v.
OSHRC, 489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973).
Quick Transp. of Arkansas, 2019 WL 33717, at *3.
Commissioner Sullivan agrees with the concerns expressed by Chairman MacDougall in
her concurring opinion in connection with defining the hazard in this case as “excessive heat.” He
also finds, however, that the Secretary must prove that Sturgill could have reasonably foreseen the
incident occurring given all of the facts available to it prior to the incident and not simply that there
was a “risk of harm” based on an expert’s later opinion as to what constitutes a “heat-related
exposure risk.”
In Commissioner Sullivan’s view, the Commission should return to an interpretation put
forth in Pratt & Whitney, 8 BNA OSHC 1329 (No. 13591, 1980), aff’d in part, rev’d in part,
remanded, 649 F.2d 96, 101 (2d. Cir. 1981), and Bomac Drilling, 9 BNA OSHC 1681 (No. 76-
0450, 1981) (consolidated), overruled by U.S. Steel Corp., 10 BNA OSHC 1752 (No. 77-1796,
1982). In those cases, the Commission held that the Secretary must prove that an incident is
“reasonably foreseeable” when citing under the general duty clause. Pratt & Whitney, 8 BNA OSHC
at 1334. The reasoning underlying this test was a concern that general duty clause cases were
wrongly focusing on the particular incident causing the injury in the case, rather than the hazard in
general. Commissioner Sullivan views the focus of the current case to be the same as it was in Pratt
& Whitney—what happened specifically to the employee (MR), rather than whether the employer
(Sturgill) could have reasonably foreseen the incident occurring given all the other conditions at the
time of the incident. As such, in his view, the Commission should again embrace the “reasonably
foreseeable” test as set forth by the Commission in those cases, an interpretation which the
Commission pointed out is consistent with the definition of a “serious” violation under section 17(k)
of the Act. See Pratt & Whitney, 8 BNA OSHC at 1335; 29 U.S.C. § 666(k). When evaluating the
general duty clause, the Secretary must establish that a truly “meaningful” and “significant”
possibility of harm existed, and that “employers receive adequate notice of their legal
responsibilities under the general duty clause.” See 5 BERKELEY J. EMP. & LAB. L. at 305. Since
the Secretary failed to make this showing here, Commissioner Sullivan finds that the Secretary failed
to establish the existence of a hazard.
Id. at 2019 WL 1099857, at *7, n. 14.

50
It is the Agency's responsibility to determine, in the first instance, what it considers
to be a “significant” risk. Some risks are plainly acceptable and others are plainly
unacceptable. If, for example, the odds are one in a billion that a person will die
from cancer by taking a drink of chlorinated water, the risk clearly could not be
considered significant. On the other hand, if the odds are one in a thousand that
regular inhalation of gasoline vapors that are 2% benzene will be fatal, a reasonable
person might well consider the risk significant and take appropriate steps to
decrease or eliminate it. Although the Agency has no duty to calculate the exact
probability of harm, it does have an obligation to find that a significant risk is
present before it can characterize a place of employment as “unsafe.”
Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 655 (1980) (Benzene).
The Secretary argues he has established excessive heat exposure presents a significant risk
of harm to carriers generally. He points to the testimony of Dr. Tustin and Dr. Bernard regarding
the statistical correlation between the number of heat-related fatalities and illnesses and higher
temperatures.
Screening Levels
The Bureau of Labor Statistics (BLS) tracks the number of annual occupational heat-
related deaths and nonfatal heat-related illnesses in the Census of Fatal Occupational Injuries
(CFOI). From 2011 to 2016, the CFOI reported an annual average of 36 heat-related fatalities and
3,500 nonfatal heat-related illnesses (NH Tr. 267-68). Dr. Tustin reviewed employer reports to
OSHA of heat-related hospitalizations over a three-year period. The employers reporting the most
hospitalizations were the United Parcel Service (UPS) (63 hospitalizations) and the Postal Service
(49 hospitalizations). Nationwide, UPS and the Postal Service accounted for 14 percent of all
reported occupational heat-related hospitalizations over a 3-year period (NH Tr. 270).
The American Conference of Governmental Industrial Hygienists (ACGIH) publishes
threshold limit values (TLVs) for hazards to which a worker can be exposed on a daily basis
without adverse effects. Dr. Tustin testified the ACGIH and the National Institute for Occupational
Safety and Health (NIOSH) implement “screening levels.” “If the environmental heat is above the
screening level, then there’s a hazard and the employer should take additional steps to try to reduce
the hazard to protect workers.” (NH Tr. 280)29
29 The Commission has been reluctant to hold that exceeding levels published by a third-party organization constitute
a hazard:
We must note that we would be hesitant to hold that exceeding those levels is, in and of itself, proof
of exposure to a hazard. The Secretary asserts that they are the dominant guidelines on heat stress
and are followed by all professional industrial hygienists. . . . While it would be very appropriate
for the Secretary to include a safety margin in an OSHA standard, the presence of a safety margin

51
Based on his research, Dr. Tustin concluded, “[A] screening threshold of about 80°F
seemed appropriate for using the heat index to screen for hazardous conditions.” (NH Tr. 285)30
He conceded some workers may experience heat-related illnesses even if the TLV for outdoor
temperature is not exceeded, perhaps due to predisposing conditions. “Predisposing conditions are
medical conditions or medications that could increase the risk of heat-related illness.” 	(NH Tr.
577-78)
A dose-response relationship is the relationship between the amount of exposure (dose) to
a substance or condition and the resulting changes (response) in body function. He believes there
is dose-response relationship between heat index values above 80°F and heat stress—the higher
the heat index, the greater the heat stress hazard. He conducted a meta-analysis of 570 heat-related
deaths dating back to 1947 (NH Tr. 287). He calculated the heat index for each case. A heat index
of less than 80°F does not appear to present a heat stress hazard. A higher heat index increases the
risk of heat stress (NH Tr. 291-92).
[W]hen the heat index was between 80 and 90 [degrees Fahrenheit], there definitely
seemed to be more risk. I think about 10 to 20 percent of all the fatalities happened
when the heat index was between 80 and 90. Then when the heat index was over
90, there seemed to be higher risk in the sense that I think about 80 percent of the
fatalities occurred when the heat index was over 90. So we concluded that a heat
index of about 80 °F seemed to be a reasonable screening threshold for figuring out
whether there was a heat stress hazard present.
(NH Tr. 292) He concluded, “[T]here's a hazard when the heat index is over 80 for the type of
work that city carriers are doing.” (NH Tr. 581)
Number of Heat-Related Incidents Among Carriers
The Secretary contends the significant risk of harm from excessive heat to which carriers
are exposed is made manifest if the Court expands the scope of reported heat-related illnesses
beyond the date and location of the Citation’s AVD in this case.
in the documents [he] relied on to prove a hazard here gives us reservations as to whether evidence
that the limits in the NIOSH document were exceeded would, in fact, prove that there was a hazard. .
. . We therefore have considerable reservations about basing a violation of section 5(a)(1) on those
guidelines. Because we are deciding this case based on the insufficiency of the Secretary's evidence,
however, we need not decide whether a violation of section 5(a)(1) would have been
established if the Secretary had proved that the limits in the documents had been exceeded.
Industrial Glass, No. 88-348, 1992 WL 88787, at *14, n. 11 (OSHRC Apr. 21, 1992).
30 Denoting temperatures of 80°F or higher as hazardous is Dr. Tustin’s benchmark. The Secretary has declined to
“explicitly enumerate . . . a range of temperatures at which heat becomes hazardous.” (Secretary’s brief, p. 29)

52
The hazard of heat stress extends far beyond the Benton Station and even the
Arkansas District. In the summers of 2015–2018, 33 carriers reported heat related
incidents at 25 different Arkansas District Stations; all but two incidents occurred
in the month of June, July or August. . . Thirteen of the 33 Arkansas District carriers
lost a combined 166 days away from work. . . . On two specific dates in 2015,
numerous letter carriers reported heat incidents ([NH Exh.] C-127).
(Secretary’s brief, p. 11)
If consideration of heat-related illnesses is expanded nationwide, the Secretary believes the
significant risk to carriers of excessive heat exposure is evident.
According to USPS’s records. . . , the number of heat-related incidents per year
since 2015 classified by USPS on its official accident reports (PS Form 1769/301)
as caused by “GEN-EXPOSURE EXTREME TEMP-HOT” are as follows for
2015, 2016, 2017, and 2018: 378, 564, 399 and 631 ([NH Tr. 1670-71]) In total,
the number of heat-related incidents over the four years was 1,972. ([NH Tr. 1668-
69]) When broken down, the 1,972 heat-related incidents came from 1,258 different
USPS facilities across the country and resulted in carriers missing a total of 8,757
days away from work. [NH Exh.] C-127)
(Secretary’s brief, p. 13)
The Postal Service counters that the number of carriers reporting heat-related illnesses is
miniscule when compared to the number who did not report heat-related illnesses. Rodman Harvey
stated, “On June 10, 2016, there were approximately 793 city carriers working in the postal district
that includes Benton, Arkansas, and there was only one alleged heat-related illness reported.” (NH
Tr. 2886)
The Postal Service retained Dr. Joshua Gotkin to analyze its data on heat-related
accidents.31 The Court qualified Dr. Gotkin as an expert “in the field of economics, with specific
expertise in the field of statistical analysis and the application of statistics in sampling.” (NH Tr.
1631-32) Dr. Gotkin reviewed data on the number of heat-related incidents involving carriers that
had occurred from fiscal year 2015 to fiscal year 2019 (NH Tr. 1632-33). For that 4-year period,
he found 1,023 reported heat-related injuries to carriers and compared those to the total number of
carrier workdays. “[Y]ou really just divide the number of events into the total number of carrier
days, and that gives you a 1 in 308,000 workdays in terms of the odds of having a heat-related
31 Dr. Joshua Gotkin is the director of ERS Group, a consulting firm specializing in labor and employment economics
(NH Tr. 1623). Dr. Gotkin received an undergraduate degree in economics and mathematics and a graduate degree in
economics in applied econometrics, economic history, and labor economics. He received a PhD in economics from
the University of Arizona in 1995 (NH Tr. 1619-20). ERS Group hired Dr. Gotkin in 1996. He became its director in
2011 (NH Tr. 1622-23). He uses applied econometrics to develop models for analyzing statistics (NH Tr. 1622-26).

53
stress incident. . . . I also restricted it to the warmer summer months, and the odds are then reduced
to 1 in 142,000 workdays.” (NH Tr. 1651) Dr. Gotkin stated, “[T]hese odds are so small that the
probability associated with those are nearly zero.” (NH Tr. 1652-53)
Linda DeCarlo is the manager of safety and OSHA compliance programs for the Postal
Service. She is its highest ranking safety officer (Tr. 1245). DeCarlo tracks trends of hazards as
part of her duties. DeCarlo estimated that, since 2015, approximately 500 to 600 Postal Service
employees (including carriers) annually have reported heat-related occupational injuries (NH Tr.
1257-59). The number of heat-related injuries does not cause her concern. “We have close to
120,000 accidents, incidents, near misses and customer events that take place in any given year.
Thirty thousand of those are related to motor vehicle. Maybe 20,000 slip, trips, and falls. Seven
thousand dog bites. So 500 heat-related claims, only which of half are recordable, is not a major
concern when there are other opportunities that we have in front of us.” (NH Tr. 1261)
The Secretary argues the small percentage of carriers affected with heat-related illnesses
does not disprove excessive heat hazards existed on the days they were affected. In Pepperidge
Farm, Ind., the employer argued different employees were affected differently by the ergonomic
activity cited as a hazard. The Commission held susceptibility to illness or injury alone is not a
basis for finding no hazard exists.
Pepperidge further points out, however, and the Secretary's experts agree, non-
workplace factors may cause or contribute to the illnesses at issue, and that
individuals differ in their susceptibility to potential causal factors. However, such
characteristics (and the inability to determine threshold of harm) are not unique to
putative ergonomic hazards but inhere in other workplace hazards as well. For
example, some or all of these characteristics obtain for many chemical, toxic and
other workplace hazards. Thus, to preclude the application of section 5(a)(1) to a
hazard with the characteristics cited by Pepperidge would be to preclude the use of
Section 5(a)(1) for many occupational ills. To be clear, characteristics such as those
identified by Pepperidge may (as discussed later) bear on questions of causation or
feasibility of abatement. They do not, however, ipso facto preclude the possibility
of regulation under Section 5(a)(1).
Pepperidge Farm, Inc., No. 89-265, 1997 WL 212599, at *23 (OSHRC Apr. 26, 1997). The
Secretary also contends he is not required to state the temperature or heat index at which heat
becomes excessive. “While knowledge of the threshold for injury may be essential in some cases,
however, the Commission has never held that certainty as to the threshold level for injury is a
prerequisite to regulation under the general duty clause.” Id. at 1997 WL 212599, at *22.

54
It is not the Secretary’s burden to prove it is likely a heat-related illness will occur at certain
temperatures, only that if such an illness occurs the carrier would be exposed to a significant risk
of harm. “[T]here is no requirement that there be a ‘significant risk’ of the hazard coming to
fruition, only that if the hazardous event occurs, it would create a ‘significant risk’ to
employees. See Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 322–25 (5th Cir.1984).”
Waldon Health Care Ctr., No. 89-2804, 1993 WL 119662, at *11 (OSHRC April 2, 1993). The
Secretary must prove, therefore, that if “excessive heat” occurs, it would create a significant risk
to carriers delivering mail that day. “[I]n order to prove the existence of a hazard within the
meaning of the general duty clause, the Secretary cannot merely show that there may be some
degree of risk to employees. He must show, at a minimum, that employees are exposed to a
significant risk of harm.” Kastalon, Inc., Nos. 79-5543 & 79-3561, 1986 WL 5351412, at * 5
(OSHRC July 23, 1986).
Magnitude of the Risk
Dr. Tustin was unable to quantify the degree of risk to which outdoor workers would be
exposed in 100°F weather. Counsel for the Postal Service cross-examined Dr. Tustin regarding a
scenario in which 1000 carriers are working on a day when the temperature is 100°F:
Q.: Can you tell me in that scenario how many employees -- what percentage of
employees working in that 100-degree day would experience a heat-related illness?
Dr. Tustin: No.
Q.: You can't tell me how likely it is?
Dr. Tustin: I can't give you an exact number as far as a number of employees who
will have an illness, no.
Q.: When you say you can't give me an exact number; can you give me any number?
Dr. Tustin: I can tell you, like I said before, that there's a dose-response relationship,
and it's --from the data that I've seen, it's more likely that employees will become
sick on a 100-degree day compared to an 80-degree day. But I can't give you an
exact number.
Q.: Can you tell me, on a 100-degree day with 1,000 employees working outside
under identical conditions, what percentage will sustain a heat-related illness that
is "serious" by your definition?
Dr. Tustin: No.
Q.: Do you recall during your deposition giving testimony about the likelihood that
a cohort of workers would experience heat-related illness? . . . [Reading from
deposition]: QUESTION: "The employees that would develop an illness, what sort
of characteristics would you expect to see in those employees, if any?" ANSWER:

55
"Like I said, I can't predict. If you gave me a cohort of workers at the beginning of
the day, and so predict which workers are going to develop a heat-related illness, I
don't think I can do that -- I could do that." Do you recall giving that testimony?
Dr. Tustin: Yes.
Q.: Do you agree with it?
Dr. Tustin: Yes.
(NH Tr. 546-47)
Dr. Tustin’s testimony establishes incidents of heat-related illness are likely to increase as
the heat index rises above 80°F, but it does not establish the magnitude of the risk or its
significance. Dr. Tustin stated the severity of heat-related illnesses varies. Some, such as heat
stroke, can be deadly, but others (such as heat rash and dehydration) can be minor (NH Tr. 261).
Dr. Tustin reviewed spreadsheets compiled by the Postal Service when he was preparing
his expert report. They listed heat-related incidents reported by Eastern Area Postal Service
employees in the summers of 2017 and 2018 (NH Exh. C-162 & C-163).
Q. So you testified earlier that there are incidents in the data that clearly weren't
reportable; is that correct, just from your review?
. . .
Dr. Tustin: I mean, just looking at the spreadsheet there are some that say the person
felt dizzy and remained working, so yes. I mean, that doesn't seem to be a reportable
incident.
Q.: And is it your understanding that these reports could include situations like an
employee calling their supervisor and saying, "I feel really hot, I'm going to sit
down for a while," and drinking a bottle of water and then continuing working?
Dr. Tustin: Yes, it appears that there are some like that.
Q.: I mean, there's one in there that just says, "I feel hot," right?
Dr. Tustin: I don't know. There might be.
. . .
Q.: Well, if that employee sits down and drinks a lot of water and says, "Hey, I feel
great, I'm going to go back to work," do they have a heat illness?
Dr. Tustin: They may have -- they might have had symptoms that would cause them
to stop working, so that could be a mild heat illness, yes.
Q.: Would you characterize that as serious?
Dr. Tustin: No
(NH Tr. 628-29)
Determination of causation is also an issue. In recording injuries from vehicular accidents,
falls, or dog bites, there is little doubt of the actual cause of the injury. Not all conditions diagnosed

56
as heat-related are, however, heat-related. Dr. Tustin conceded the symptoms of heat exhaustion,
either separately or in combination, are also symptoms of other conditions and their presence may
be unrelated to heat. There is no diagnostic test for heat exhaustion (NH Tr. 538-541).
Dr. Conibear testified regarding the inconclusive nature of presumed heat-related illnesses.
Here, LC-1 was initially diagnosed with heat exhaustion but his doctors later determined the
correct diagnosis was labyrinthitis. LC-1 was also diagnosed with hypokalemia, or low potassium
level in the blood. “Potassium is a salt that’s present in your cells in the blood. It’s one of the
entities that’s referred to as an electrolyte. When you vomit, you lose a lot of potassium. . .
[D]iuretic medications cause hypokalemia. Diarrhea causes hypokalemia, and sweating can do it
also.” (NH Tr. 3017) LC-1 was also diagnosed with dehydration, which Dr. Conibear attributed to
his vomiting and sweating (NH Tr. 3017-18).
Dr. Conibear stated a later diagnosis in a reported heat-related case is often more accurate
than the initial diagnosis.
Q.: Why are later records often more helpful?
Dr. Conibear: Well, because, as this case illustrates, heat exhaustion has a course
that it runs and you expect the person to improve pretty quickly and not have any
symptoms in a matter of hours. In this case that didn't happen. And he was also --
he had physical signs that were not characteristic of heat exhaustion in that he was
staggering and couldn't walk. So those all indicated that this was not the right --
heat exhaustion was not the right diagnosis.
Q.: And Dr. Tustin testified that within a reasonable degree of medical certainty,
[LC-1] did not suffer from a heat-related illness. Do you agree with Dr. Tustin’s—
Dr. Conibear: Yes.
. . .
Q.: Based on your review of the records, was [LC-1] acclimatized?
Dr. Conibear: Yes.
Q.: Why do you say that?
Dr. Conibear: Because he had been working and was doing the same work that he
had been doing for weeks, and basically, he had satisfied the 2 weeks of
acclimatization.
(NH Tr. 3020-21)
Tolerability of Heat Stress
At one point in the hearing, Dr. Bernard compared ACGIH’s TLV levels for heat to
OSHA’s occupational noise exposure standard. Section 1910.95 sets the permissible exposure
limit (PEL) for noise exposure during an 8-hour day to 90 dBA for all workers.

57
The PEL for noise is 90 dBA. And you might argue a little bit about what the
number is, but [there] generally are between 20 and 25 percent of the population
will suffer an occupational hearing loss at 90 dBA. So that's the reason for the
hearing conservation amendment where you have audiograms. That's your way of
catching somebody who will be less tolerant of the noise. Even with the ACGIH
TLV at 85 dBA, there's a small percentage of people who will still have an
occupational hearing loss. So again, the audiograms are a way of catching that.
(NH TR. 994-95)
Counsel for the Postal Service returned to the subject on cross-examination.
Q.: If we think about people being exposed to noise levels of 90 dBA or higher, you
or somebody like you could tell us at those ranges this percentage of workers would
lose hearing; is that fair?
Dr. Bernard: Yes.
Q.: With these TLVs would you agree that even at levels below the TLV there will
be certain workers who will have heat-related illness?
Dr. Bernard: Yes.
Q.: And you would agree with me that at levels above the TLV, perhaps
significantly above the TLV, there will be workers that will not have heat- related
illness?
Dr. Bernard: Yes.
. . .
Q.: [W]e know that above 90 dBA there's a certain percentage who are pretty likely
to lose hearing; do we not? That's why OSHA set the limit at 90?
Dr. Bernard: Yes.
. . .
Q.: Would you agree with me that the TLVs are designed -- currently designed such
that 99 percent of workers exposed at levels below the TLVs will keep their core
body temperatures at 38.3°C or below?
Dr. Bernard: Yes.
Q.: The final question on ACGIH, the ACGIH guidelines are set not to prevent heat
illness. They're set to -- the goal of them, if you will, is to keep the core body
temperature at 38.3°C or below?
Dr. Bernard: Well, and more importantly -- or more specifically so that you can
maintain thermal equilibrium.
Q.: So again, those are unlike, for example, the noise standard which is set to
prevent hearing loss? This is set to maintain thermal equilibrium.
Dr. Bernard: Yes.
Q.: So it's not set to prevent an illness?
Dr. Bernard: Not directly.

58
Q.: Well, I mean, you already agreed that certainly you will have some unspecified
percentage of workers who will experience a heat illness even when working at
levels below the TLV?
Dr. Bernard: Yes.
(NH Tr. 1056-59)
As with heat exposure, noise exposure affects different people differently. A certain
percentage of workers will suffer some hearing loss at a level below the PEL, and a certain
percentage may not register hearing loss at certain levels above the PEL. The difference is
employers know the precise level OSHA, for the purpose of compliance, has determined noise
presents a hazard. Section 1910.95 establishes a regulatory baseline that provides notice to
employers of the PEL for noise exposure and the requirements for hearing monitoring and testing.
Quantification of “Excessive” Heat
The Secretary must show a condition or activity in the workplace presents a hazard. Here,
the condition and the alleged hazard are identical. The condition of excessive heat presents an
alleged hazard of excessive heat. The precise temperature at which regular heat becomes excessive
is, however, unclear. OSHA has been urged to promulgate a heat stress standard since shortly after
the Act went into effect. See Industrial Glass, No. 88-348, 1992 WL 88787, at *12 (OSHRC Apr.
21, 1992) (“In 1972, NIOSH recommended that OSHA adopt a standard governing exposure to
heat, and a panel appointed by OSHA endorsed that recommendation in 1974. Nevertheless,
OSHA has not adopted a heat stress regulation[.]”).
The local and national hearings in the Postal Service cases establish people tolerate
environmental heat at different levels, and other factors, such as underlying medical conditions or
medication use, can affect their usual tolerability. Dr. Tustin and Dr. Bernard agree that some
people may sustain a heat-related illness at temperatures below 80°F, their recommended screening
level. The statistical evidence from the national hearing establishes the vast majority of carriers
completed their routes without incident on the dates the alleged heat-related illnesses cited by the
Secretary occurred. Without a temperature- or heat index-specific standard, it is difficult for
employers to know when heat is “excessive.” Chairman Sullivan commented on the lack of a
uniform measurement in A.H. Sturgill. “The Secretary’s failure to establish the existence of an
excessive heat hazard here illustrates the difficulty in addressing this issue in the absence of an
OSHA standard.” Id. at 2019 WL 1099857, at *5, n.8.

59
In her concurring opinion in A.H. Sturgill, former Chairman MacDougall addresses the
nebulous phrase “excessive heat.”
“Excessive heat” is a condition that is inherent in the performance of outdoor work
and one that only presents the possibility for harm, not an employment condition
that by itself necessarily carries a significant risk of harm. See Mo. Basin Well Serv.,
Inc., 26 BNA OSHC at 2316 n. 5 (MacDougall, Chairman) (“As the Commission
observed in Pelron, an employer cannot reasonably be expected to free its
workplace of inherent risks that are incident to its normal operation.”). This vague
definition also neither identifies a condition or practice over which an employer can
reasonably be expected to exercise control nor provides an employer with fair
notice of what it is required to do to protect its employees.
Id. at 2019 WL 1099857, at *15.
“Whether there exists a significant risk depends on both the severity of the potential harm
and the likelihood of its occurrence, but there is an inverse relationship between these two
elements. As the severity of the potential harm increases in a particular situation, its apparent
likelihood of occurrence need not be as great.” Weirton Steel Corp, No. 98-0701, 1999 WL
34813785, at *5 (OSHRC July 31, 2003). The record demonstrates the difficulty of accurately
determining the etiology of illnesses presumed to be heat-related. The Secretary has not shown the
incidence of carriers’ self-reported heat-related illnesses establishes a “significant” risk of harm,
either in the statistical likelihood of occurrence or in the severity of potential harm.
Conclusion
The Court concludes the Secretary did not establish the cited weather conditions exposed
Benton’s city carriers to a significant risk of harm from excessive heat on June 10, 2016.32 The
Secretary has not met his burden to establish a condition or activity in the workplace presented a
hazard. The Citation is vacated.
B. Feasible and Effective Means to Eliminate or Materially Reduce the Hazard
Assuming the Secretary had established the temperature or heat index on June 10, 2016,
presented an excessive heat hazard, as well as the elements of industry or employer recognition,
32 This conclusion is not intended to minimize the general physical discomfort of carriers delivering mail in hot
weather (Tr. 137-38, 522-23). As the Commission noted in International Glass, heat is an unavoidable feature of some
workplaces (such as the open air in summer). “While the employee testimony regarding the difficulties they
experienced because of the hot working conditions troubles us because it clearly shows that this is an uncomfortable
working environment and that employees do suffer from the effects of the heat, the citation's identification of the
hazard as excessive heat stress suggests that the Secretary recognizes that some degree of discomfort is inherent in the
job.” Id., No. 88-348, 1992 WL 88787, at *12 (OSHRC Apr. 21, 1992).

60
likelihood of death or serious physical injury, and knowledge, the Court finds he failed to establish
the element relating to feasible and effective means of abatement. “To establish the feasibility of
a proposed abatement measure, the Secretary must ‘demonstrate both that the measure. . . [is]
capable of being put into effect and that [it] would be effective in materially reducing the incidence
of the hazard.’ Arcadian, 20 BNA OSHC at 2011 (citing Beverly Enters. Inc., 19 BNA OSHC at
1190). Where an employer has undertaken measures to address a hazard alleged under the general
duty clause, the Secretary must show that such measures were inadequate. U.S. Postal Serv., 21
BNA OSHC 1767, 1773-74 (No. 04-0316, 2006).” A.H. Sturgill, 2019 WL 1099857, at *8.
1. Alternative Means of Abatement
In A.H. Sturgill, the Commission stated,
Before addressing this element of proof [for abatement], however, we must first
determine whether the Secretary proposed each measure as an alternative means of
abatement, in which case implementing any one of them would constitute
abatement of the alleged violation, or as a component of a single means of
abatement, in which case all of the measures must be implemented to abate the
violation. If the former, the Secretary can prevail on this element only if he proves
that Sturgill implemented none of the measures. . . . If the latter, he need only show
a failure to implement one of them.
Id. at 2019 WL 1099857, at *9.
The Citation presents seven proposed methods of abatement for the alleged excessive heat
exposure hazard:
Feasible and acceptable methods to abate this hazard include, but are not limited
to:
1. Implement a heat stress management program with measures to address exposure
to excessive heat. Such program may include the following:
Provide for a cool and shaded rest area. Ensure employees take their breaks
in the shade or in a cool, climate-controlled area.
Develop a work/rest cycle based on validated measures of heat stress, such
as a heat index or wet-bulb globe temperature index.
Limit time in the heat and/or increase recovery time spent in a cool
environment.
Develop 	and 	implement 	procedures 	to 	be 	followed 	for 	heat-related
emergency situations and procedures for first-aid to be administered
immediately 	to 	employees 	in 	those 	situations. 	Train 	managers 	and
supervisors 	to 	respond 	to 	employees 	reporting 	heat-related 	illness
symptoms.

61
Assign a supervisor or other personnel to closely monitor employees for
adequate hydration and work-rest cycles.
Provide training for employees prior to the arrival of excessively hot
weather conditions regarding the health effects associated with heat stress,
symptoms of heat induced illnesses, and the prevention of such illness.
Provide cooled air, cooled fluid or ice cooled conditioned clothing, such as
ice vests or neck towels that can maintain the body’s core temperature to
below 98°F Fahrenheit.33
2. Implement procedures for employees to report heat stress symptoms to
management.
3. Ensure trained managers or supervisors go into the field to check on employees
when National Weather Service heat advisories are in effect.
4. Training managers, supervisors, and employees in the measures to take to prevent
heat-related illnesses, how to recognize the signs and symptoms of heat-related
illnesses, and the procedures to follow when they or others are experiencing heat-
related illnesses. Such training could be conducted annually in advance of the hot
weather season and throughout the season when excessive heat is predicted. All
managers, supervisors, and employees could be required to confirm their receipt
and understanding of the training and records of said training could be maintained.
5. Ensure managers and supervisors are communicating to employees USPS-
disseminated heat stress information, including safety talks, fully and in a timely
manner.
6. Reduce the metabolic demands of the job. Provide other means of carrying and
transporting heavy mail loads aside from satchels for letter carriers to relieve
physiological burden during the hot summer months.
7. During the summer months where excessive heat conditions may contribute to
employee safety and health issue, begin mail delivery routes earlier in the workday
to aid in the completion of outdoor work prior to the hottest hours of the day.
The Secretary in A.H. Sturgill used the same formulation he uses in this case to introduce
the list of proposed abatement methods (“Feasible and acceptable methods to abate this hazard
include but are not limited to”). The Commission found
The abatement portion of the citation . . . begins with a sentence that uses and
references the plural word “methods”: “Feasible and acceptable methods to abate
this hazard include, but are not limited to: ...,” suggesting that each measure is
an alternative means of abatement. (emphasis added).
Id. at 2019 WL 1099857, at *9, n. 17.
33 Dr. Bernard testified cooling towels and similar products “provide a sense of comfort but they’re not going to
materially control heat stress.” (NH Tr. 1114)

62
In his post-hearing brief, the Secretary acknowledges the proposed abatement methods are
distinct alternatives, and not components of a single abatement method. “[T]he evidence shows
that USPS could have taken several steps to abate or materially reduce the heat stress hazard its
employees faced. These steps include an adequate work/rest cycle, an adequate emergency
response program, analyzing existing data on employees’ heat-related illnesses, employee
monitoring, and reducing outdoor exposure time. By failing to implement these or equally effective
abatement measures, USPS needlessly exposed its workers to dangerous heat stress hazards.”
(Secretary’s brief, pp. 36-37) (emphasis added)
Having found the Secretary proposed alternate methods of abatement in A.H. Sturgill, the
Commission concludes, “[I]f the record shows that Sturgill implemented any one of the Secretary's
proposed measures, or is equivocal in that regard, the abatement element of the Secretary's burden
of proof has not been established.” 	Id. at 2019 WL 1099857, at *9. So it is here. If the Postal
Service implemented any one of the Citation’s seven proposed abatement methods, the Secretary
cannot meet his burden on this element. The Court finds the Postal Service implemented
communication of heat stress information as a method of abatement.
2. Communication of Heat Stress Information
In his post-hearing brief, the Secretary addresses five methods of abatement: 1. Work/Rest
Cycles; 2. Air-Conditioned Vehicles; 3. Emergency Response and Employee Monitoring; 4.
Analyzing Existing Data on Heat-Related Illnesses; and 5. Reducing Time Outdoors (Secretary’s
brief, pp. 37-44).34
What the Secretary does not address is the Citation’s fifth proposed method of abatement:
“Ensure managers and supervisors are communicating to employees USPS-disseminated heat
stress information, including safety talks, fully and in a timely manner.”
It is undisputed Benton supervisors regularly communicated heat stress information to
carriers (using material from the Postal Service’s Southern Area Heat Stress Campaign 2016) prior
to LC-1’s June 10 incident, usually during the Friday morning standup talks.35 The Benton post
office also provided heat stress training, including video training. Benton supervisors and carriers
34 The Benton Citation does not mention air-conditioned vehicles or analyzing existing heat-related illness data in its
list of proposed abatement methods.
35 The Secretary argues the Southern Area Heat Stress Campaign 2016 was inadequate but he does not dispute Benton
post office supervisor regularly communicated heat stress information to carriers in standup safety talks (Secretary’s
brief, p. 34).

63
testified extensively on this issue (Exh. C-10; Tr. 105, 127, 152, 195-96, 207-08, 254-66, 393-94,
547-50, 648, 652, 765-66, 768, 791-92, 796-802).
The Court finds the Postal Service ensured Benton Post Office managers and supervisors
communicated heat stress information to its carriers, fully and in a timely manner, in accordance
with the Secretary’s proposed method of abatement. Under A.H Sturgill, this is sufficient to
establish the Postal Service abated the alleged violation.
3. Economic Infeasibility
Finally, the Secretary failed to establish its proposed abatement methods regarding
work/rest cycles, acclimatization programs, earlier start times, and additional paid breaks are
economically feasible. It is the Secretary’s burden to show his “proposed abatement measures are
economically feasible. . . . In cases involving the general duty clause, the Commission has
generally held that an abatement method is not economically feasible if it ‘would clearly threaten
the economic viability of the employer.’ National Realty, 489 F.2d at 1266 n.37.” 	Beverly
Enterprises, Inc., Nos. 91-3144, 92-238, 92-1257, 93-724, 2000 WL 34012177, at *34-35
(OSHRC Oct. 27, 2000).36
Two of the Secretary’s proposed abatement methods listed in the Benton Citation are:
1. Develop a work/rest cycle based on validated measures of heat stress, such as a
heat index or wet-bulb globe temperature index [, and]
. . .
7. During the summer months where excessive heat conditions may contribute to
employee safety and health issues, begin mail delivery routes earlier in the day to
aid in the completion of outdoor work prior to the hottest hours of the day.
At the national hearing, the issues of additional paid breaks and acclimatization schedules
were also addressed. All of these proposals would require the Postal Service to pay carriers for
time during which they are not working or pay additional carriers at regular or overtime rates.
Dr. Tustin testified regarding abatement measures that he recommends the Postal Service
implement to reduce its employees’ exposure to excessive heat. Safety organizations use the
concept of hierarchy of controls to prioritize measures to reduce hazardous exposure. The first and
most effective measure is elimination of the hazard, followed by substitution, engineering controls,
36 The Secretary acknowledges he has the burden of proving economic feasibility of proposed abatement methods in §
5(a)(1) cases but argues an exception should be made here since the Postal Service “is unique among employers
subject to OSHA’s enforcement jurisdiction, because its existence is subject to Congressional oversight.” (Secretary’s
brief, p. 45) The Court disagrees. The burden of proof remains with the Secretary.

64
administrative controls, and personal protective equipment (PPE) (NH Tr. 498-500). Dr. Tustin
stated elimination of the hazard (hot weather) is not an option for the Postal Service, nor is
substitution.
Work/Rest Cycles
Dr. Tustin discussed, as an administrative control, work/rest cycles to lower the carriers’
metabolic heat. “[T]he employer would give workers rest breaks . . . and they would increase in
either frequency or duration as the temperature increases.” (NH Tr. 508) He advocated for a
“protocol for giving more frequent breaks” such as “when the temperature reaches a certain level,
workers might break for 15 minutes out of every hour and rest in a cooler location. As the
temperature increases even more, there might be another threshold where they have to rest even
more than 15 minutes per hour—maybe 30 minutes per hour.” (NH Tr. 509)
Dr. Tustin believes the most effective use of the work/rest cycle is to require mandatory
breaks. “[F]or heat-related illnesses in particular, . . . if it’s progressing to heat stroke that can
cause disorientation and confusion, mental status changes. So somebody who is progressing to
heat stroke might not realize that they need a rest break. So relying on the worker to take a rest
break could be dangerous in that situation.” (NH Tr. 513) He does not think the Postal Service’s
policy of allowing comfort breaks is an effective administrative control. “To be honest it didn’t
even really appear sincere to me. The testimony that I reviewed indicated that sometimes
supervisors said that workers were allowed to take extra rest breaks but then when workers either
reported symptoms or said they wanted extra rest breaks; they were . . . either disciplined or
supervisors became angry.” (NH Tr. 514) It is Dr. Tustin’s opinion, to a reasonable degree of
medical certainty, that exposure to excessive heat “would have been significantly reduced in all
seven incidents [cited in the five Postal Service cases before the Court] if a work/rest cycle program
had been implemented.” (NH Tr. 514)
Acclimatization
Dr. Tustin discussed three types of acclimatization in the context of abatement measures.
First, a worker may not be acclimatized if he or she is newly hired and has not been exposed to the
work environment. “In that case allowing the person to become acclimatized to heat stress is
thought to be helpful.” (NH Tr. 515) Second, a worker who has taken time off work, either due to
vacation or illness, “might lose acclimatization or when the worker comes back the heat stress
might be higher when the worker left. So allowing that worker to gradually acclimatize, . . . if the

65
absence has been more than about two weeks, is helpful.” (NH Tr. 515-16) The third case involves
“situations where essentially the entire workforce is unacclimatized if it’s, . . . for example, a heat
wave. Protecting the entire workforce somehow during a heat wave can materially reduce the
hazard.” (NH Tr. 516)
Dr. Bernard recommended newly hired carriers and carriers returning after a work break
follow an acclimatization schedule that builds up daily to increased heat exposure (NH Exh. C-
312). He believes his recommended acclimatization is technically feasible for the Postal Service.
“[I]t's with the preplanning that goes into things. And they do plan their routes. They do have
unexcused absences and others. So there's a capability of managing how you can assign routes and
a workload, so I think this fits into that possibility.” (NH Tr. 837)
Dr. Bernard acknowledged on cross-examination he did not know realistically how the
Postal Service could implement his recommended acclimatization plan.
Q.: 	In those scenarios where, you know, you're going to have in your opinion
workers who cannot be on the street working outside because they returned from
that 3-week vacation, you said they can be productive in other ways. Given what
you know about the Postal Service operation, what are they going to do during that
time?
Dr. Bernard: Well, I don't know.
Q.: Okay. So you don't know if they can be productive or not?
Dr. Bernard: Yeah, I mean, I can create scenarios and the Post Office will laugh at
me. You know, so this isn't my business, but the Post Office knows their business.
. . . But the goal is, you know, is some sort of progressive increase. The classic one
is 50 percent on day one. 60, 80, 100. . . . And that is the outdoor portion, the casing
doesn't count.
(NH Tr. 1080-81)
Reducing Time Outdoors
Dr. Tustin also advocated for earlier start times. Noting temperatures typically are highest
between 2:00 p.m. and 4:00 p.m., Dr. Tustin recommended the Postal Service could adjust its
delivery schedule, so carriers are not working during the hottest hours in the afternoon. “[I]f you
shifted the work hours that they finish by 1:00 p.m. then [the carriers] would be exposed to both
lower levels of environmental heat overall. So the level of heat would be lower and the amount of
time that they were exposed to a hazardous level of environmental heat would be shorter.” (NH
Tr. 518)

66
Funding the Proposed Abatement Methods
The Secretary presented no witnesses, expert or otherwise, to show funding the proposed
additional rest/recovery/acclimatization/break time is economically feasible. Instead, the Secretary
argues the Postal Service could simply raise prices for competitive products, such as packages, or
borrow $4 billion from the U.S. Treasury (Secretary’s brief, p. 46). These suggestions are
speculative and presented without evidence of their efficacy. The Secretary also claims the Postal
Service is not actually operating at a deficit because it has defaulted on its financial obligations for
several years.
The 2018 Presidential task force report provides a clear snapshot demonstrating six
consecutive years of postal profits totaling $3.8 billion in revenue. (DC Ex. C-135
at p.19) All of USPS’s claimed losses are merely paper losses. After nine years of
not paying into the Retiree Health Benefits Fund (RHBF), it is clear the prefunding
mandate of the Postal Accountability and Enhancement Act is not a true expense
because the act has no mechanism to enforce payment, USPS suffers no penalty
from default, and it intentionally chooses to spend its revenue elsewhere.
(Secretary’s brief, p. 47)
The Postal Service, in contrast, presented a detailed analysis explaining why the
Secretary’s proposed time-related abatements are unworkable. David Williams Jr., chief operating
officer and executive vice president for the Postal Service, testified at length regarding its
precarious financial condition resulting from increased competition and the obligation to prefund
the RHBF (NH Tr. 1751-52). He described how the complex network of employees, contractors,
facilities, airplanes, trucks, and other vehicles coordinate nationwide to meet the timetable imposed
by 24-hour clock, and how one snag could create a bullwhip effect (NH Tr. 1760, 1780-81, 1783-
84, 1791-92, 1795-97). Williams stated, “Every step depends on the previous step. And if we
change one thing, we change another.” (NH Tr. 1814)
Williams testified the Secretary’s recommendations for work/rest cycles and unlimited
paid breaks were economically (as well as technically) infeasible.
If you think about the 24 hour clock that I talked about the need for our carriers to
get back by 6:00 p.m. so that we could meet the dispatch schedules and start that
whole process around our operating plan to insure that we achieve the service
expectations of our customers, when an employee can take an unlimited break for
work 75 percent of the time that means that for -- at least for the one where the heat
said 45 minutes work 15 minutes break for every hour, that’s significant.
That impacts our ability to deliver mail on time to make the 24 hour clock.
If you think about 50 percent of the time where a carrier is working 30 minutes out

67
of every hour, totally infeasible in terms of our ability to provide prompt, reliable
and efficient service.
And then if you think of 15 minutes of work and 45 minutes of break, totally
infeasible. Then the unlimited breaks, I don’t know of any business, any business
that provides unlimited breaks whenever anybody would want to take a break.
. . . [W]e’re hemorrhaging money every day. And the costing that was
performed on this analysis is in the hundreds of millions of dollars. We can’t afford
it.
(NH Tr. 1911-13)
The parties stipulated that the Postal Service’s net losses were in the billions for 2016,
2017, and 2018:
1. In the following Fiscal Years (FY), the Postal Service’s total revenue was:
2016 $71.498 billion
2017 $69.636 billion
2018 $70.660 billion
2. In the following Fiscal Years, the Postal Service’s total operating expenses were:
2016 $76.899 billion
2017 $72.210 billion
2018 $74.445 billion
3. In the following Fiscal Years, the Postal Service’s net loss was:
2016 $5.591 billion
2017 $2.742 billion
2018 $3.913 billion
(NH Exh. J-100)
Dr. Do Yeun Sammi Park, financial economist for the Postal Service, testified regarding
the financial impact of implementing the abatement methods proposed by the Secretary related to
paid worktime.37 The Court determined Dr. Park was qualified “in terms of her knowledge, skill,
experience, training, and education” as an expert in economics with a “specialized expertise in cost
modeling.” (Tr. 1559-60)
37 Dr. Park works as a financial economist for the Postal Service. She received undergraduate and graduate degrees in
economics from the University of Missouri Columbia. In 2009, she received a PhD in economics from Purdue
University. Dr. Park taught as a graduate instructor at both universities and was an adjunct professor at Hofstra
University, teaching principles of micro- and macroeconomics. She also taught as a visiting professor at Sungshin
University in Seoul, South Korea, teaching world economics and industrial organization (NH Tr. 1550-54).

68
She explained her process for developing a costing model to determine how much proposed
changes in CBAs would cost the Postal Service. CBAs usually expire after 3 or 5 years, and then
the terms have to be renegotiated.
[W]henever we do the negotiation, the major portion is an economic proposal,
which is determining the wage increase, the general wage increase or COLA
increase or step increase. Those are the three main parts of the wage increase.
So whenever we do the negotiation, there's a lot of proposals going on, and
we – my task was to cost each economic proposal, how much it's going to cost to
the USPS. . . . So I developed a fairly complicated model, the costing model. And
so I polish up the model, develop it and prove it and update it before the negotiations
start. And whenever the negotiation is actually going on, the main spokesperson
talks to the union's head, and then they discuss – they bounce each other the
proposals, and they let me -- tell me I need to cost what it's going to cost USPS 1.3
percent of general increase next year or throughout the 3-year contract. And I have
to cost -- for example, it's going to cost $800 million to the USPS. . . . So a costing
model consists of basically wages and benefit part. . . . So the general increases on
. . . the salaries, so that comes into it.
The benefit part, we also have to -- so whenever we increase a salary, that
also affects the benefit, and we have to cost that part out. Mainly, the cost part of
the benefit is -- we look at the proportion of how much, if we increase salary -- the
basic salary goes up, then what's the proportion of benefit goes up with it. So those
are the main big components of the costing model.
(NH Tr. 1556-58)
In August of 2018, the Postal Service asked Dr. Park to determine the cost of two proposed
changes designed to reduce the exposure of carriers to excessive heat: an acclimatization program
and an additional paid 5-minute break. For the acclimatization program, Dr. Park assumed the
targeted carriers are returning to work after a 3-day layoff and after a 7-day layoff. For both layoff
periods, Dr. Park assumed the carriers’ return schedule would start the first day with restricting
them to working only 2 hours outdoors, then 4 hours the second day, and then 6 hours the third
day. On the fourth day, the carriers can return to their regular schedules. Dr. Park relied on the
acclimatization analyses developed by Robert Mullin, a data analyst in field staffing and support
for the Postal Service, to perform her cost modeling the proposed changes (NH Tr. 1473, 1560-
63).
Dr. Park used a “consolidated rate” to calculate the cost. The consolidated rate is
determined by combining the various wage rates for full-time, part-time, and non-career postal
employees into one wage rate. She also reviewed the CBAs for city and rural carriers for details
relating to guaranteed hours the Postal Service is contractually obligated to pay (NH Tr. 1564-68).

69
Based on her analyses of six hypothetical situations, Dr. Park determined the total costs of the
acclimatization program and the paid 5-minute break:
(1) Cost of 3 Day Acclimatization and Paid Break, 4/1/2017—10/1/2017, for All
Carriers:
Straight Time--$333,877,519 	Overtime--$487,864,332
(2) Cost of 3 Day Acclimatization and Paid Break, 6/1/2017—10/1/2017, for All
Carriers:
Straight Time--$209,293,069 	Overtime--$312,124,391
(3) Cost of 3 Day Acclimatization and Paid Break, 6/1/2017—9/1/2017, for All
Carriers:
Straight Time--$179,628,724 	Overtime--$263,267,664
(4) Cost of 7 Day Acclimatization and Paid Break, 4/1/2017—10/1/2017, for All
Carriers:
Straight Time--$126,620,282 	Overtime--$188,428,747
(5) Cost of 7 Day Acclimatization and Paid Break, 6/1/2017—10/1/2017, for All
Carriers:
Straight Time--$87,849,671 	Overtime--$130,815,782
(6) Cost of 7 Day Acclimatization and Paid Break, 6/1/2017—9/1/2017, for All
Carriers:
Straight Time--$67,536,663 	Overtime--$100,540,277
(NH Exh. R-202, pp. 6-8; NH Tr. 1599-1602)
The Secretary argues these figures are inflated.38
The calculation is a gross over-estimation of costs as acclimatization is not
needed after a mere three or seven days off; rather, it is necessary for new
workers and workers returning from a two to three week absence. Therefore the
group selected for costing was over-inclusive. Further, acclimatization is
generally only needed when the heat index is at least 91°F, so calculating for
every single day inside a three month time period is also grossly over inclusive.
(Secretary’s brief, p. 48, n. 33)
38 The Secretary takes issue with the projected acclimatization costs but does not address other proposed time-based
abatement costs not covered in Dr. Park’s analysis. Dr. Bernard proposed a work/rest recovery cycle which would
require carriers to rest for 15, 30, or 45 minutes per hour, depending on the temperature. Dr. Bernard testified he did
not consider the Postal Service’s 24-hour clock model, the CBA provisions, or the number of replacement workers
required to complete timely mail delivery when proposing this abatement method (NH Tr. 1117-18). The Secretary
did not provide an estimate of compliance costs or the effects of the costs on the existence or competitive structure of
the Postal Service for Dr. Bernard’s proposal.

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It is not the Postal Service’s burden to establish the Secretary’s proposed abatement
methods are economically feasible. The Postal Service has presented the analysis of a cost
modeling 	specialist 	who 	projected 	the 	cost 	of 	implementing 	specified 	extra 	break 	and
acclimatization schedules. The Secretary had the opportunity to rebut the projected costs with his
own expert or to cross-examine Dr. Park more extensively on the accuracy of her projections.
“OSHA is not required to prove economic feasibility with certainty but is required
to use the best available evidence and to support its conclusions with substantial
evidence.” [American Iron & Steel Institute v. OSHA 939 F.2d 975, 980–81 (D.C.
Cir. 1991) (Lead II)]. OSHA must also provide “a reasonable estimate of
compliance costs and demonstrate a reasonable likelihood that these costs will not
threaten the existence or competitive structure of an industry, even if it does portend
disaster for some marginal firms.” [United Steelworkers of America, AFC-CIO-
CLC, 647 F.2d 1189, 1272 (D.C. Cir. 1960), (Lead I)].
N. Am.'s Bldg. Trades Unions v. Occupational Safety & Health Admin., 878 F.3d 271, 296 (D.C.
Cir. 2017).
It is the Secretary’s burden to prove the economic feasibility of his proposed abatements.
The Secretary did not provide an estimate of compliance costs or demonstrate a reasonable
likelihood compliance costs would not threaten the existence or competitive structure of the Postal
Service.
Joseph Corbett, chief financial officer and executive vice president for the Postal Service,
was asked about financing the proposed acclimatization and paid break programs. He stated, “We
don’t have sufficient funds to even pay our existing obligations. So, no, we do not have funds to
pay additional obligations. . . . We just don’t have sufficient cash. We—we can’t.” (NH Tr. 2383-
84)
Restrictions Imposed by the CBA
Alan Moore has been the Postal Service’s manager of labor relations since 2007(NH Tr.
2211). He is responsible for contract administration for the NALC and for managing the labor
relations process when rules are created or changed (NH Tr. 2214-15). His testimony illustrates
how the CBA creates further obstacles to feasibly implementing the Secretary’s proposed time-
based methods of abatement.
The Postal Reorganization Act requires the Postal Service to bargain with its employees’
labor unions. The parties bargain over wages, hours, benefits, and working conditions (NH Tr.
2216). Generally, when a contract is set to expire, the parties have an approximately 90-day
window to bargain. They jointly establish the ground rules, including what discussions will be off

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the record. They set up bargaining teams who work on proposals (NH Tr. 2218). The Postal Service
looks at the total cost of any proposed contract. “[G]enerally there’s a quid pro quo process. So if
the union . . . wants something, then we get something in return.” (NH Tr. 2219) During the term
of the CBA, the Postal Service cannot unilaterally change wages, hours, benefits, or working
conditions of the contract (MH Tr. 2225-26).
NALC is the exclusive bargaining representative of city carriers. Not all city carriers are
members of NALC but the CBA for NALC applies to all of them. City carriers include career
employees, who are either full-time (with 40-hour assignments) or part-time. Part time employees
are divided into part-time regulars and part-time flexibles. The CBA limits the number of part-
time regular employees to 682. The part-time flexible position is being sunsetted and replaced by
city carrier assistants (CCAs). CCAs are non-career employees who are on a path to become career
employees when a regular position opens up. The CBA limits the number of CCAs to 15 percent
of the full-time employees per district, and no more than 8,000 CCAs nationwide. The Postal
Service is prohibited from unilaterally exceeding any position caps set out in the CBA (NH Exh.
R-117; NH Tr. 2228-34).
The CBA does not permit the Postal Service to divide a city carrier’s assignment so part of
it is worked in the morning and part in the late afternoon. “[T]here’s a requirement that full-time
assignments are either 8 or 9 hours within 10 hours.39 [T]he 8 hours within 9 hours . . . is in offices
with a hundred employees or something. There’s a baseline there. . . . So the biggest gap you can
have in a regular assignment is 2 hours.” (NH Tr. 2234-35)
The CBA guarantees full-time city carriers 8 hours of work or 8 hours’ worth of pay daily.
If a full-time city carrier works only 2 hours during a day’s assignment, the Postal Service still
owes the city carrier for 8 hours’ pay (NH Tr. 2235-36). The Postal Service must assign overtime
work first to full-time employees who have signed up for the overtime-desired list. If the Postal
Service assigns an employee who is not on the list to work overtime, it must also pay the employee
on the overtime-desired list for the same work (NH Tr. 2237-38).
The Postal Service has demonstrated the Secretary’s proposed time-based abatement
methods threaten its economic viability. The Court concludes the Secretary has failed to establish
39 The 9- or 10-hour block of time includes the 30-minute lunch break and the 10-minute morning and afternoon
breaks, as well as any comfort stops (NH Tr. 2236).

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his 	proposed 	abatements 	relating 	to 	acclimatization 	programs, 	additional 	paid 	breaks,
work/recovery cycles, and earlier workday start times are economically feasible.
VIII. CONCLUSION
The Secretary has not met his burden of proving the cited conditions presented a hazard of
excessive heat exposure to Benton city carriers on June 10, 2016. He has not shown the Postal
Service failed to implement any of the alternative methods of abatement he proposed. And he has
failed to establish the economic feasibility of his proposed abatement methods related to
acclimatization programs, additional paid breaks, work/recovery cycles, and earlier workday start
times.
Because the Court finds the Secretary did not prove a violation of the general duty clause,
it is not necessary to address the Secretary’s request for enterprise-wide abatement of excessive
heat exposure for carriers.
The Citation is vacated.
IX. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Fed. R. Civ. P. 52(a).
X. ORDER
Based on the foregoing decision, it is hereby ORDERED:
Item 1 of the Citation, alleging a repeat violation of § 5(a)(1), is VACATED, and no
penalty is assessed.
SO ORDERED.
/s/___________________________
Sharon D. Calhoun
Dated: July 29, 2020 	Administrative Law Judge, OSHRC
Washington, DC