Martin J. Walsh v. Walmart, Inc., 49 F.4th 821

On Feb. 25, 2017, a Walmart employee at the Johnstown, NY distribution center was struck by merchandise that fell roughly 40–50 feet from high selective racking, suffering serious spinal injuries.
The facility stores packaged merchandise on pallets placed on selective racking (shelf-like levels, two-deep, back-to-back), with space between the top of a pallet and the next rack level.
OSHA inspected, issued a serious citation alleging violation of 29 C.F.R. § 1910.176(b) (secure storage) and proposed a $10,864 penalty.
An ALJ upheld the citation, finding the materials were stored and Walmart knew of the hazard; Walmart sought discretionary review.
The Occupational Safety and Health Review Commission (majority) vacated the citation, concluding the regulation’s operative sentence applies only to items ‘‘stored in tiers’’ meaning stacked directly one atop another (so pallets on racking did not qualify).
The Secretary of Labor appealed; the Second Circuit held the Secretary’s interpretation—that “tiers” reasonably includes shelf/level storage arranged one above another—was reasonable, vacated the Commission, and remanded for application of the correct standard to the remaining violation elements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does 29 C.F.R. § 1910.176(b) (“stored in tiers”) cover pallets on selective racking?	Secretary: “tiers” unambiguously or reasonably includes material arranged one above another, including on shelves/levels.	Walmart: “tiers” means items stacked directly on top of one another with nothing in between.	Court: Secretary’s broader reading is reasonable; the Commission erred in narrowing “tiers.”
If ambiguous, is the Secretary entitled to deference?	Secretary: regulation ambiguous; agency interpretation entitled to Auer/Kisor deference if reasonable.	Commission/Walmart: Commission interpreted the term narrowly; first sentence of standard is precatory.	Court: deference appropriate where interpretation reasonable; even if ambiguous, Secretary’s reading prevails.
Did the record establish a §1910.176(b) violation (elements: applicability, violation, employer knowledge, employee access)?	Secretary: record shows unstable pallet storage, repeated incidents, employer awareness, employee exposure.	Walmart: argued materials were being moved into storage (not “stored”) and raised other defenses.	Court: held the standard applies (first prong satisfied) but remanded to the Commission to decide remaining elements.

Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (U.S. 1991) (Secretary’s interpretations of OSHA regulations entitled to deference if reasonable)
Kisor v. Wilkie, 139 S. Ct. 2400 (U.S. 2019) (clarified and limited Auer deference; deference only where regulation is genuinely ambiguous)
Auer v. Robbins, 519 U.S. 452 (U.S. 1997) (agency interpretations of its own regulations often accorded deference)
Triumph Constr. Corp. v. Sec'y of Labor, 885 F.3d 95 (2d Cir. 2018) (elements required to establish an OSHA violation)
Solis v. Loretto-Oswego Residential Health Care Facility, 692 F.3d 65 (2d Cir. 2012) (standard of review for Commission legal conclusions and deference to Secretary)