4
Here, the Secretary relies on the first sentence of § 1910.176(b)—“[s]torage of material
shall not create a hazard”—and asserts that the standard applies to material stored “in any manner.”
We disagree. Reading § 1910.176(b) as a whole, it is clear that the first sentence is merely a
precatory or hortatory introduction to the second sentence, which contains the operative, specific
requirements of the provision. Cf. Dist. of Columbia v. Heller, 554 U.S. 570, 578 (2008) (“[A]part
from that clarifying function, a prefatory clause does not limit or expand the scope of the operative
clause.”). Indeed, the Secretary’s reading of § 1910.176(b)’s first sentence effectively renders the
second sentence a nullity—if “[b]ags, containers, bundles, etc.” are not “stable and secure against
sliding or collapse,” then they surely “create a hazard.” See Gen. Motors Corp., Delco Chassis
Div., 17 BNA OSHC 1217, 1220 (No. 91-2973, 1995) (consolidated) (“Regulations are to be read
so as to give effect to all their terms, if possible.”), aff’d, 89 F.3d 313 (6th Cir. 1996). Moreover,
the sheer breadth and generality of the first sentence’s language, were it to be interpreted as
imposing a separate obligation, could raise serious vagueness concerns, particularly in light of the
present citation’s bare-bones allegation that Walmart’s use of industry-standard racking posed
“struck-by hazards from unstable material storage.” See Ga. Pac. Corp. v. OSHRC, 25 F.3d 999,
1005 (11th Cir. 1994) (“A . . . regulation is considered unconstitutionally vague . . . if it ‘forbids
or requires the doing of an act in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.’ ”) (quoting Connally v. Gen. Constr. Co., 269
U.S. 385, 391 (1926)). Accordingly, we decline to read § 1910.176(b) so broadly and find that it
applies only if the material at issue is “stored in tiers.”
This means that the applicability inquiry here turns on whether the pallets in the distribution
center were “stored in tiers,” as that term is used in 29 C.F.R § 1910.176(b).
4
“Tier,” which the
standard does not define, means “a row, rank, or layer of articles,” and “one of two or more rows
4
We note that the judge did not address this issue, focusing instead on Walmart’s argument that
the items that fell on J.S. were “not covered by this standard because [they were] in the process of
being placed into storage.” In fairness, Walmart did not raise the issue of the definition of “tier”
not encompassing the pallets themselves before the judge—indeed, the company explicitly argued
this point only in its reply brief on review. Nevertheless, the Secretary did not move for leave to
file an additional brief to directly address this line of argument or move to strike Walmart’s brief
as raising an issue not properly before us. See Commission Rule 93(b)(3), 29 C.F.R.
§ 2200.93(b)(3) (“The party that filed the first brief may file a reply brief, or, if briefs are to be
filed simultaneously, both parties may file a reply brief. Additional briefs are otherwise not
allowed except by leave of the Commission.”).