An administrative law judge of the Occupational Safety and Health Review Commission denied a U.S. Postal Service motion to strike an order for enterprisewide abatement of heat stress hazards by federal safety regulators.

The USPS argued that enterprisewide liability is inconsistent with the Occupational Safety Health Act and is “inappropriate in cases that require place and circumstance-specific findings of facts relating to whether a violation exists and is required to be abated” such as in general duty clause and heat stress cases, according to the law judge’s June 6 order, published Wednesday.

But the Secretary of Labor argued on behalf of the U.S. Occupational Safety and Health Administration that dismissal is an “an extreme sanction disfavored by the commission where a lack of particularity is alleged.” In addition, the secretary contended the order for enterprisewide abatement was being sought to address “corporate practices, not individual heat stress conditions at specific locations.”

The USPS asserted that the secretary’s response makes clear the secretary is not seeking enterprisewide abatement, but rather is seeking an order assuring future compliance with the general duty clause as to heat stress hazards, which USPS argued was precluded by the OSH Act.

“The crux of the USPS’s argument is that there can be no abatement when no citation has been issued,” the law judge said in the ruling. “Nor, according to the USPS, is the commission authorized to issue orders regarding conditions for which no citation exists. Also according to the USPS, the secretary’s complaint fails to meet the notice pleading requirement, as the request for relief seeks abatement of citations which have not been issued. Accordingly, the USPS contends the secretary’s request for an order of enterprise-wide abatement should be stricken or dismissed. Having reviewed and considered the arguments of both parties … the court hereby denies the USPS’s Motion.”

USPS relied on two unreviewed administrative law judge determinations that address these issues, the law judge noted. In Secretary of Labor v. Delta Elevator Service Corp., the law judge in that case found “the evidence insufficient to support a determination that Delta violated the cited standard at sites other than the subject worksite.”

“The Delta case was in a much different posture at the time the judge addressed the enterprise-wide abatement issue than the instant case,” the law judge in the USPS case said. “Here, discovery has not been initiated, no hearings have been held and no evidence has been presented on the issue. And it is yet to be seen whether the secretary will present evidence sufficient to support the claimed violation and the enterprise-wide abatement relief sought. As the litigation of this matter is still in its infancy stage, the judge’s decision in Delta does not further the USPS’s argument.”

In Secretary of Labor v. Central Transport L.L.C., the law judge denied the respondent’s motion to strike the secretary's claim for enterprisewide abatement, with the law judge persuaded by the early stage in the proceeding, before discovery and hearings had been held, and that the respondent’s claims did not warrant the extreme sanction of striking the secretary’s claim for an order for enterprise-wide abatement. The law judge in that case also found that the request for an order of enterprise-wide abatement satisfied the review commission’s pleading requirements by providing notice that its compliance with the cited standard was at issue.

“The court need not decide at this time whether the commission has the authority to grant the requested relief and if so, whether such relief should be granted,” the law judge said in ruling against the USPS motion. “The only issue which must be decided by the court at this time is whether the secretary’s first amended complaint complies with the commission’s notice pleading requirements. The court finds that it does.”

The amended complaint notified the USPS that its compliance with the general duty clause while its employees were working outside during periods of high heat levels while delivering mail was at issue and the citation meets the review commission’s fair notice test, the law judge added.

“Only after a full evidentiary hearing will the court be able to determine whether the totality of the circumstances will show an order for enterprise-wide abatement is appropriate or warranted,” the judge stated.

USPS does not comment on pending litigation, according to a spokesman.