Chewy, Inc. v. U.S. Department of Labor

USCA11 Case: 22-11626 Document: 44-1 Date Filed: 05/30/2023 Page: 1 of 16
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11626
____________________
CHEWY, INC.,
Petitioner,
versus
U.S. DEPARTMENT OF LABOR,
Respondent.
____________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
Agency No. 19-0868
____________________
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2 Opinion of the Court 22-11626
Before WILLIAM PRYOR, Chief Judge, and LUCK and HULL, Circuit
Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns the Secretary of Labor’s authority to
fine an employer for failing to prevent an occupational hazard
when the employer has complied with the Secretary’s specific
safety standard for that hazard. The Secretary of Labor cited and
fined Chewy, Inc., for inadequately protecting its warehouse em-
ployees from “under-rides,” a kind of forklift accident. The Secre-
tary found that no specific standard covered the under-ride hazard
and that Chewy had a general duty to protect its workers from that
hazard. An administrative law judge upheld the citation and ruled
that the standard Chewy cited, 29 C.F.R. § 1910.178, did not cover
the under-ride hazard. We disagree. Because Chewy complied with
the safety standard that specifically addresses under-rides, the Sec-
retary cannot cite Chewy for failing to protect its workers from that
hazard. We grant Chewy’s petition for review, set aside the Com-
mission’s order, and vacate the citation.
I. BACKGROUND
The Secretary cited Chewy after two of its warehouse work-
ers had under-ride accidents within a six-month period, one in July
2018 and one in December 2018. The employee in the first incident
was injured, and the employee in the second incident was killed.
An under-ride occurs when the rear part of a forklift is short
enough that it can pass under warehouse shelves without colliding
with them. If the forklift can pass under the shelving, the operator
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22-11626 Opinion of the Court 3
can hit or be crushed by the shelving, as happened to Chewy’s
workers.
Before the 2018 accidents, Chewy had two measures in place
to prevent under-rides. First, according to a Chewy safety officer,
the company trained its forklift operators to “look[] in the direction
of travel, maintain[] full control of the fork[lift], [and] operat[e] at
safe speeds.” Second, Chewy maintained warehouse aisles signifi-
cantly wider than the minimum safe width for its forklifts. But
Chewy did not implement a third strategy, modifying the shelving
or forklift to ensure that the forklift hits a shelf before it can pass
under that shelf, until after the fatal accident in December 2018.
The Secretary delivered a “Citation and Notification of Pen-
alty” to Chewy in May 2019 after the Department of Labor’s inves-
tigation of the 2018 accidents. The Secretary found that Chewy vi-
olated its statutory general duty to provide a safe workplace, 29
U.S.C. § 654(a)(1), because Chewy had not adopted the third strat-
egy, which the Secretary found feasible and helpful, before the ac-
cidents. Cf. Ga. Elec. Co. v. Marshall, 595 F.2d 309, 320–21 (5th Cir.
1979) (explaining the elements of a general-duty-clause violation).
Chewy contested the citation before an administrative law judge
on the ground that an existing Department of Labor safety stand-
ard for forklift operation addressed under-rides and preempted any
statutory general duty regarding under-rides.
The administrative law judge upheld the citation. Chewy,
Inc., No. 19-0868 (OSHRC Feb. 22, 2022) (ALJ), 2022 WL 1009607.
She concluded that because the promulgated forklift operation
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4 Opinion of the Court 22-11626
standard, 29 C.F.R. § 1910.178, did not prevent all under-rides,
Chewy was not excused from its general duty to protect workers
from them. Chewy, 2022 WL 1009607, at *19–22. And the adminis-
trative law judge ruled that Chewy failed to fulfill its general duty
because under-rides are a known hazard in the industry and Chewy
declined to adopt the feasible preventative measures of modifying
either its forklifts or its shelving. Id. at *36, *38. The Occupational
Safety and Health Review Commission denied discretionary re-
view, so the administrative law judge’s decision became a final or-
der of the Commission. See 29 U.S.C. § 661(j).
II. STANDARD OF REVIEW
This Court “will set aside an order of the Commission only
if it is arbitrary and capricious, an abuse of discretion, or otherwise
not in accordance with the law.” C&W Facility Servs., Inc. v. Sec’y of
Lab., 22 F.4th 1284, 1287 (11th Cir. 2022) (citing 5 U.S.C.
§ 706(2)(A)). Federal courts have historically deferred to the Secre-
tary’s interpretation of her own regulations before the Commis-
sion, see Martin v. Occupational Safety & Health Rev. Comm’n, 499 U.S.
144, 157–58 (1991), but we defer only if that interpretation is “rea-
sonable,” U.S. Dep’t of Lab. v. Tampa Elec. Co., 38 F.4th 99, 101 n.2
(11th Cir. 2022) (citation omitted).
III. DISCUSSION
Chewy challenges the Commission’s order on several
grounds, but we address only one because it is dispositive. Chewy
argues that it cannot be held liable under the general-duty clause
because it complied with a specific standard, see 29 C.F.R.
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22-11626 Opinion of the Court 5
§ 1910.178, that already addresses the under-ride hazard. See id.
§ 1910.5(f ). We agree.
The Occupational Safety and Health Act, 29 U.S.C. § 651 et
seq., “impose[s] dual obligations on employers.” ComTran Grp., Inc.
v. U.S. Dep’t of Lab., 722 F.3d 1304, 1307 (11th Cir. 2013). Employers
have a “general duty,” id., to provide their employees “employment
and a place of employment which are free from recognized haz-
ards that are causing or are likely to cause death or serious physical
harm,” 29 U.S.C. § 654(a)(1). An employer fails to comply with this
requirement if he has “failed to render [the] work place free of a
hazard; . . . the hazard was recognized; . . . the hazard caused or
was likely to cause death or serious physical harm”; and “the hazard
[was] preventable.” Ga. Elec. Co., 595 F.2d at 320–21 (internal quota-
tion marks and citation omitted). Employers “also have a ‘special
duty’ to comply with all mandatory health and safety standards.”
ComTran Grp., 722 F.3d at 1307; see 29 U.S.C. § 654(a)(2). The Secre-
tary of Labor promulgates those standards through a notice-and-
comment process, see 29 U.S.C. § 655(b), and has the authority to
investigate employers for violations of their duties under the Act,
issue citations, and assess monetary penalties. ComTran Grp., 722
F.3d at 1307.
Under Department of Labor regulations, “[a]n employer
who is in compliance with any” specific safety standard “shall be
deemed to be in compliance with” the general-duty clause, “but
only to the extent of the condition, practice, means, method, oper-
ation, or process covered by the standard.” 29 C.F.R. § 1910.5(f ).
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6 Opinion of the Court 22-11626
The Commission was obliged to abide by this preemption regula-
tion in its decision. See Simmons v. Block, 782 F.2d 1545, 1550 (11th
Cir. 1986) (“The failure of an agency to comply with its own regu-
lations constitutes arbitrary and capricious conduct.”). The princi-
ple that compliance with an applicable safety standard bars general-
duty liability is also reflected in Commission precedent that states
that the general-duty clause is inapplicable for a failure to prevent
a hazard “if a standard specifically addresses the hazard cited.” Ac-
tive Oil Serv., Inc., 21 O.S.H. Cas. (BNA) 1184 (No. 00-0553, 2005),
2005 WL 3934873, at *2. And we have already equated the phrase
“condition, practice, means, method, operation or process” with
“hazard” in the context of an adjacent Department of Labor
preemption regulation that establishes the relationship between
general and specific safety standards. See Brock v. Williams Enters. of
Ga., Inc., 832 F.2d 567, 570 (11th Cir. 1987) (citing 29 C.F.R.
§ 1910.5(c)).
The Secretary has promulgated a safety standard that ad-
dresses safe forklift operation. Section 1910.178 governs “[p]owered
industrial trucks,” including forklifts. 29 C.F.R. § 1910.178(a)(1).
This standard addresses the Secretary’s concerns about the risk that
a forklift could “run into a column or other part of the building.”
Powered Industrial Truck Operator Training, 63 Fed. Reg. 66,238,
66,242 (Dec. 1, 1998). The standard requires that forklift operators
receive safety training. 29 C.F.R. § 1910.178(l). Specifically, opera-
tors must be trained to “look in the direction of, and keep a clear
view of the path of[,] travel” and maintain the vehicle at a safe
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22-11626 Opinion of the Court 7
speed. Id. § 1910.178(n)(6), (8). All agree that the Secretary did not
find that Chewy violated this standard.
Compliance with this specific standard addresses the under-
ride hazard, so the Commission erred in upholding the Secretary’s
citation under the general-duty clause. The Secretary concedes and
has long maintained that section 1910.178 requires employers to
address the under-ride hazard. In a 2009 bulletin, for example, the
Occupational Safety and Health Administration recommended
that employers “[t]rain employees to operate forklifts safely as re-
quired by paragraph (l) of 29 C.F.R. 1910.178” because that training
“will reduce the risk of under-ride hazards.” In 2018, the Secretary
argued before the Commission that an employer violated section
1910.178(l) because it “failed to inform employees about ‘crushed
by’ or ‘underride hazards’ they faced while operating [forklifts.]”
Pharmasol Corp., 2018 O.S.H.D. (CCH) ¶ 33,692 (No. 16-1172, 2018)
(ALJ), 2018 WL 5013447, at *25. And at Chewy’s hearing, the Sec-
retary’s expert witness testified that “proper” training under the
standard would address the under-ride hazard, which would be at
the “top of the list” of forklift operation hazards. See 29 C.F.R.
§ 1910.178(l) (requiring operator training). Another of the Secre-
tary’s witnesses testified that the standard “specifically addresses
the hazard of [forklift] operators striking structures in a ware-
house,” including “the hazard of a [forklift] operator striking a stor-
age rack,” which is precisely what is dangerous about an under-ride
event.
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8 Opinion of the Court 22-11626
The Secretary argues that the general-duty clause is not
preempted because training cannot completely eliminate the un-
der-ride hazard, so “no specific standard . . . entirely covers the haz-
ard alleged.” (emphasis added.) The administrative law judge
agreed and explained that “even adhering to section 1910.178, the
under-ride hazard would still exist in the workplace due to inatten-
tion and inadvertence.” Chewy, 2022 WL 1009607, at *22. Under
this logic, section 1910.178 may “cover” forklift collisions in gen-
eral, but it does not cover the hazards that occur when forklifts have
already passed under shelving. So the general-duty clause, the ad-
ministrative law judge reasoned, still required Chewy to address
“what happens in the event of an under-ride.” Id. at *20. But this
interpretation of the preemption regulation is unreasonable, and,
even if it were correct, it was unreasonably applied to Chewy.
The Secretary’s distinction between a standard that prevents
the under-ride hazard and a standard that addresses the hazards
that arise in the event of an under-ride, if accepted and extended to
other cases, would upend the regulatory scheme. The Secretary
could avoid preemption of any standard by distinguishing between
the hazards the standard addresses and the hazards that occur when
the standard fails. Instead, as amicus curiae the Retail Litigation Cen-
ter, Inc., explains, if the Secretary determines that current stand-
ards “are inadequate to address the under-ride hazard, the [Occu-
pational Safety and Health] Act provides the agency with legal au-
thority to impose new requirements on the industry.” The Secre-
tary can modify the safety standards through public notice and
comment. See 29 U.S.C. § 655(b). That process, as the Retail
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22-11626 Opinion of the Court 9
Litigation Center explains, provides the Secretary with critical in-
put from interested parties about the “feasibility, potential risk re-
duction, and/or unintended impacts” of proposed standard revi-
sions. But if the inadequacy of the existing standards precludes
preemption, the Secretary can use the general-duty clause to up-
date specific safety standards without the required procedural safe-
guards.
The administrative law judge’s interpretation of section
1910.5(f ) is also unreasonable because it requires that compliance
with the specific standard eliminate the hazard for preemption to
occur. Section 1910.5(f ) nowhere requires that compliance with the
standard “eliminate” a hazardous condition. Nor does Commission
precedent require that the standard eliminate the hazard. See Active
Oil, 2005 WL 3934873, at *2; see also, e.g., Armstrong Cork Co., 8
O.S.H. Cas. (BNA) 1070 (No. 76-2777, 1980), 1980 WL 10754, at *4
(“[T]he standard must be addressed to the particular hazard for
which the employer has been cited under the general duty
clause.”). Neither the Secretary nor the administrative law judge
has explained why we should insert that requirement into the test
for preemption, beyond a stray statement from a non-binding 1981
Commission decision that the hazard must be “entirely” covered.
See Ted Wilkerson, Inc., 9 O.S.H. Cas. (BNA) 2012 (No. 13390, 1981),
1981 WL 18797, at *3; see also Sec’y, U.S. Dep’t of Lab. v. Action Elec.
Co., 868 F.3d 1324, 1331 & n.2 (11th Cir. 2017) (“[Commission prec-
edent] is in no way binding on this Court’s decision . . . .”).
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10 Opinion of the Court 22-11626
Even if the line between preventing under-rides and address-
ing the hazards that under-rides cause were tenable, the adminis-
trative law judge did not reasonably apply the distinction. See Fed.
Commc’ns Comm’n v. Prometheus Radio Project, 141 S. Ct. 1150, 1158
(2021) (explaining that the “arbitrary-and-capricious standard re-
quires that agency action be reasonable and reasonably explained”).
The administrative law judge rejected Chewy’s “attempts to re-
frame the issue in terms of preventing an under-ride.” Chewy, 2022
WL 1009607, at *21. But the administrative law judge acknowl-
edged that the Secretary’s proposed abatement measures—the
measures she determined were required by the general-duty
clause—addressed the under-ride hazard by “preventing an under-
ride from occurring.” Id. at *29–30. The Secretary contended that
Chewy was required to install a metal structure behind a driver that
would block an under-ride or to modify shelves so that forklifts
would crash into shelving before they could pass under them. Id.These measures, like the operator training section 1910.178(l) re-
quires, do not protect a worker in the event of an under-ride. They
instead prevent under-rides. So the administrative law judge acted
arbitrarily and capriciously by failing to abide by the principle on
which she purported to rest her decision. See Motor Vehicle Mfrs.
Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (“[A]n agency rule would be arbitrary and capricious if the
agency . . . offered an explanation for its decision that runs counter
to the evidence before the agency . . . .”).
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22-11626 Opinion of the Court 11
IV. CONCLUSION
We GRANT the petition for review, SET ASIDE the order
of the Commission, and VACATE the citation.
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22-11626 HULL, J., concurring 1
HULL, Circuit Judge, concurring:
I concur in the result of the majority opinion because (1) the
Secretary’s specific safety standard in 29 C.F.R. § 1910.178 covers
and applies to the under-ride hazard in this case, (2) the Secretary
did not charge, much less find, that Chewy violated this § 1910.178
standard, and (3) the general duty clause is inapplicable here
because that specific safety standard covers and applies to the
under-ride hazard in this case.
An under-ride hazard and injury can occur (1) when a
forklift operator is backing up and the backing up continues while
the rear of the forklift passes underneath a horizontal crossbar or
shelving rack, (2) the crossbar or shelving rack thus enters the area
where the forklift operator is standing with his back to the crossbar
or shelving rack, and (3) the crossbar or shelving rack crushes the
operator as he continues to back up. The warehouse aisles here
are wide enough to allow a forklift driver to turn, back up, and
maneuver without going under the shelving rack.1
Section 1910.178 contains safety requirements relating to
the use of “[p]owered industrial trucks,” which include forklifts. 29
C.F.R. § 1910.178(a)(1). Section 1910.178(l) requires employers to
“ensure that each [forklift] operator is competent to operate a
powered industrial truck safely, as demonstrated by the successful
completion of the training and evaluation specified in this
1 The aisles in Chewy’s warehouse were 127 inches wide—12 inches wider
than the 115-inch aisle width required by the forklift manufacturer.
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2 HULL, J., concurring 22-11626
paragraph (l).” 29 C.F.R. § 1910.178(l)(1). The regulation specifies
that forklift operators “shall receive initial training in the following
topics,” which include “[s]urface conditions where the vehicle will
be operated,” id. § 1910.178(l)(3)(ii)(A), and “[o]ther unique or
potentially hazardous environmental conditions in the workplace
that could affect safe operation,” id. § 1910.178(l)(3)(ii)(I).
Operators also must be trained to “look in the direction of, and
keep a clear view of the path of[,] travel” and maintain the vehicle
at a safe speed. Id. § 1910.178(l)(3)(iii), (n)(6), (n)(8). The preamble
to § 1910.178 reads:
A vehicle that is out of control or being operated by a
driver whose view in the direction of travel is
restricted can strike an employee, run into a column
or other part of the building, or strike stored material,
causing the material to topple and injure employees
in the area. Effective driver training teaches operators to
act properly to minimize these hazards to themselves and
other employees.
Powered Indus. Truck Operator Training, 63 Fed. Reg. 66,238, 66,242
(Dec. 1, 1998) (emphasis added).
The Secretary’s main argument as to preemption is that the
cited hazard in this case—the under-ride hazard—is not covered by
§ 1910.178(l) and is materially different from the hazard of running
into or striking a storage rack that is referenced in the preamble to
§ 1910.178. But the evidence indicates the Secretary understood
the under-ride hazard was also covered by the requirements in
§ 1910.178.
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22-11626 HULL, J., concurring 3
For starters, the Secretary has published guidance advising
employers that training on under-ride hazards should be included
in the training program required by § 1910.178. This guidance is a
Safety Health Information Bulletin entitled “Standup Forklift
Under-ride Hazards.” The Bulletin describes and addresses the
cited hazard in this case—namely, the under-ride hazard that
occurs when a forklift passes beneath a horizontal crossbar, such
that “the crossbar can enter the operator’s compartment and crush
the operator inside the compartment.” Further, the stated
purposes of this Bulletin are to: (1) “[a]lert standup forklift
operators and employers to the crushing hazard to the operator
associated with under-ride,” (2) “[r]ecommend work practices that
can be implemented by the employer to eliminate the under-ride
hazard,” and (3) “[s]tress the importance of training employees on
the safe operation of standup forklifts.”
The Bulletin also observes that proper operator training is
“essential” to the safe operation of forklifts. It also states that:
(1) § 1910.178(l) “contains training and certification requirements
for the use of forklifts that are specific to the workplace,” and
(2) § 1910.178(n)(1) and (n)(6) “require operators to keep the
forklift under control at all times and to look in the direction of
travel.”
The Bulletin also offers various recommendations to
employers to address the under-ride hazards associated with
operating standup forklifts. One of these recommendations is to
“[t]rain employees to operate forklifts safely as required by [29
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4 HULL, J., concurring 22-11626
C.F.R. § 1910.178(l)], including recognizing the hazards of the
workplace created by the use of the vehicles.”
Second, the Secretary previously has taken the litigation
position that a failure to inform employees about the under-ride
hazard violated § 1910.178(l). Specifically, in Pharmasol Corp., the
Secretary argued that an employer violated § 1910.178(l) because it
“failed to inform employees about ‘crushed by’ or ‘underride
hazards’ they faced while operating stand-up reach trucks.”
OSHRC Doc. No. 16-1172, 2018 WL 5013447, at *25 (OSHRC Sept.
4, 2018). This litigation position is inconsistent with the Secretary’s
position in this case that § 1910.178(l) does not address the under-
ride hazard.
Third, the Secretary conceded in its initial brief that training
on the under-ride hazard should be included in the comprehensive
training program required by § 1910.178(l).
Fourth, the Secretary is primarily left to argue that the
employer is required to prevent and wholly eliminate all under-ride
hazards (1) by altering the manufactured forklift vehicle itself by
adding bars in the back to prevent a highly trained operator from
ever, no matter what, going under a horizontal shelving rack, or
(2) by lowering the bottom shelves in warehouses, although
striking those shelves (as opposed to passing a little under) might
cause merchandise to topple over on the operator. There may well
be additional work safety regulations worth adopting, requiring,
and then enforcing against employers, but the Secretary has not
done so to date.
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22-11626 HULL, J., concurring 5
Given the Secretary’s regulatory text, the record evidence
which includes the Secretary’s guidance, and certain relevant law
discussed in the majority opinion, it was unreasonable for the ALJ
to hold that § 1910.178 does not cover the under-ride hazard here
and that instead the general duty clause applies to the cited
under-ride hazard in this particular case.