Basic Grain Products, Inc.
Lockout violations affirmed with one item reduced to serious
Apply this to your situation
This order from 2013 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Basic Grain Products made snack foods using conveyors, augers, drums, ovens, and packaging equipment at its Ohio facility. Production employees cleaned moving or improperly locked-out machinery without receiving the lockout/tagout training or tools required for employees who perform servicing work, and one employee suffered severe injuries when caught in moving conveyor sprockets. The company's written procedure largely copied OSHA's generic sample and omitted machine-specific energy sources, controls, and isolation steps. That procedure violation was serious rather than willful because the company had made a good-faith, though inadequate, effort to develop the policy with OSHA consultation. The separate failure to apply lockout devices was willful because supervisors knew cleaning occurred on energized equipment and management did not correct a pattern reflected in thirteen injuries over three years. The litigated training item carried a $6,300 penalty, and the grouped procedure and lockout items carried $63,000; settled items brought the order's total penalties to $85,300.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.147(c)(7)(i); 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.147(d)(4)(i)
- Outcome: The training item was affirmed as serious, the procedure item was reduced from willful to serious, and the failure-to-lock-out item was affirmed as willful.
- Key point: A generic lockout procedure is inadequate when it does not tell workers how to isolate the actual energy sources on the machines they service.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant, OSHRC Docket No. 12-0725
v.
BASIC GRAIN PRODUCTS, INC.,
Respondent.
Appearances:
Elizabeth R. Ashley, Esq., Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio,
For Complainant
Spencer M. Youell, Esq. and Justin A. Morocco, Esq., Mowery Youell & Galeano, Ltd., Dublin,
Ohio
For Respondent
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 659(c) (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted
a two-day inspection of Basic Grain Products, Inc. (“Respondent”) on September 2, 2011 and
November 4, 2011 at Respondent’s facility in Coldwater, Ohio. As a result, OSHA issued a
Citation and Notification of Penalty (“Citation”) to Respondent alleging four other-than-serious
violations, eight serious violations, and two willful violations 1 with total proposed penalties of
- Complainant has alleged, in the alternative, that the willful violations were also serious. (Tr. 659).
$112,000.00. Respondent timely contested the Citation. Prior to the trial, the parties settled
Citation 1, Items 1, 2(a), 2(b), 3, 5, 6, and 7. In addition, the parties executed a Partial
Settlement Agreement on January 25, 2013, which resolved Citation 3, Items 1–4. As a result,
the parties agreed to proceed to trial on Citation 1, Item 4 with a proposed penalty of $7,000.00
and Citation 2, Items 1(a) and 1(b), with a proposed penalty of $70,000.00. A three-day trial was
held in Columbus, Ohio on May 21–23, 2013. The parties timely submitted post-trial briefs.
Stipulations 2
The parties stipulated to the following:
1. Respondent, Basic Grain Products, Inc. (“Basic Grain”) is an Ohio corporation with
its principal place of business in Coldwater, Ohio.
2. Basic Grain is and was an employer engaged in a business affecting commerce
within the meaning of § 3(5) of the Act.
3. On February 15, 2013, a Citation and Notification of Penalty (“Citation”) was issued
to Basic Grain, and it timely filed a written notice of contest.
4. A Partial Settlement Agreement was approved and entered by Order dated January
25, 2013, vacating Citation 3, Items 1 through 4.
5. Prior to the beginning of the trial on May 21, 2013 in Columbus, Ohio, the parties,
on the record, settled Citation 1, Items 1, 2(a), 2(b), 3, 5, 6, and 7 as follows:
a. Citation 1, Item 1 is reclassified as “other-than-serious” with a penalty of
$3,000.00.
b. Citation 1, Items 2(a), 2(b), and 3 are grouped together as a single “serious”
violation with a penalty of $4,000.00.
- The parties’ stipulations can be found in their respective post-trial briefs, as well as in the transcript. See
Secretary’s Post-Hearing Br. at 1; Respondent’s Post-Hearing Br. at vii; Tr. at 15–16.2c. Citation 1, Items 5 and 6 are grouped together as a single “serious” violation
with a penalty of $7,000.00. d. Citation 1, Item 7 is reclassified as “other-than-serious” with a penalty of $2,000.00. Jurisdiction Jurisdiction over this action is conferred upon the Commission pursuant to section 10(c)
of the Act. The parties have stipulated and the record establishes that at all times relevant to this
action, Respondent was an employer engaged in a business and industry affecting interstate
commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). Complaint and
Answer; Slingluff v. OSHRC, 425 F.3d 861, 866–67 (10th Cir. 2005).
Background
Seven witnesses testified at trial: (1) Corrine Majoros, OSHA Compliance Safety and
Health Officer (“CSHO”); (2) Sharon “Sherrie” Altenbach, a Supervisor at Respondent’s facility;
(3) Abigail Huston, a packer at Respondent’s facility; (4) Russell Jay, a packer and seasoner at
Respondent’s facility; (5) Raymond May, Respondent’s Maintenance Manager; (6) Dana Nash,
Respondent’s Human Resources Manager; and (7) Amy Day, Respondent’s Operations Manager.
Respondent produces snack products such as pop chips, pita chips, rice cakes, mini rice
crisps, and other products that come in a variety of sizes and flavors. (Tr. 33). Depending on the
type, size, and flavor, the product would be sent through one of Respondent’s four active 3
sectors, or lines. (Tr. 30, 36–37). Each sector contains a number of different machines,
including conveyors, seasoning augers, drums, puffers, ovens, and packaging equipment, and the
equipment in each sector may be used differently depending on the product being made. (Tr. 31,
- The current active lines are A, D, E, and F. (Tr. 40–41). A fifth sector, B, is currently under construction. (Tr.
81).339–40, 81–82, 181). For example, according to Respondent, each sector uses ovens; however,
depending on the product made, the ovens operate differently, which, in turn, affects how
employees interact with a particular oven. (Tr. 82).
Employees and supervisors are assigned to a particular sector when they arrive at the
facility at the beginning of their shift. (Tr. 28). The supervisor of a particular sector oversees
approximately five to fifteen production employees, who are either packers or seasoners. (Tr.
28–32). Packers are tasked with bagging and packaging products, whereas seasoners apply
seasoning to the snacks and ensure that it is being properly applied. (Tr. 178–180). Several
different machines are utilized to apply oil, dry, or wet seasoning, and an oven is used to
complete the seasoning process. (Tr. 181).
In addition to its production employees, Respondent employs a thirteen-person
maintenance crew. (Tr. 201). The crew has a lead man on first and second shifts, each of whom
reports to Respondent’s Maintenance Manager, Raymond May. (Tr. 202).
Mr. May’s supervisor and Respondent’s Operations Manager, Amy Day, began working
for Respondent in 2005 as its Human Resources Manager. (Tr. 440). Shortly thereafter, in 2006,
Respondent was inspected and cited for violations related to lockout, tagout (“LOTO”). 4 At that
time, Respondent did not have a written LOTO policy. (Tr. 442). Following the investigation,
as part of the required abatement, Respondent was directed to create and institute a LOTO
policy. (Tr. 442). Ms. Day, who had no prior training in LOTO, created a policy based on
information she found on the OSHA website. (Tr. 447; Ex. C-1, C-2, C-3). Ms. Day reviewed
the policy with OSHA On-Site, which is a consultation service provided by Complainant. (Tr.
- In particular, Respondent was cited pursuant to 29 C.F.R. § 1910.333, which addresses LOTO in the context of
exposure to electrical shock. (Tr. 444, 477). At that time, Respondent was not cited pursuant to 29 C.F.R. §
1910.147.4442–47). Based on her meeting with OSHA On-Site, Ms. Day made revisions to the LOTO
policy. (Tr. 207, 446, 500; Ex. C-1, C-2, C-3).
The inspection that led to the Citation at issue occurred on September 2, 2011 and
November 4, 2011. (Tr. 244, 492). These inspections were conducted by CSHO Majoros in
response to an injury complaint. (Tr. 512). 5 As a result of the 2011 inspection, Complainant
issued the Citation, which included the violations that are discussed below.
Applicable Law
To establish a prima facie violation of an OSHA standard, the Complainant must prove
by a preponderance of the evidence that: (1) the cited standard applies to the cited condition; (2)
the terms of the standard were violated; (3) one or more employees had access to the cited
condition; and (4) the employer knew, or with the exercise of reasonable diligence could have
known, of the violative condition. Astra Pharm. Prod., Inc., 9 BNA OSHC 2126, 2129 (No. 78-
6247, 1981) (citations omitted), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
A violation is classified as serious under the Act if “there is substantial probability that
death or serious physical harm could result.” 29 U.S.C. § 666(k). Commission precedent
requires a finding that “a serious injury is the likely result if an accident does occur.” Mosser
Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation omitted); see Omaha
Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 784 (8th Cir. 2002). Complainant does not
need to show there was a substantial probability that an accident would occur; he need only show
that if an accident did occur, serious physical harm could result. Id.
“A willful violation is one committed with either intentional disregard of or plain
indifference to the requirements of the Act or a standard.” J.A. Jones Constr. Co., 15 BNA
- CSHO Majoros had previously inspected Respondent’s facility in 2007 in response to a report of a mercury spill.
(Tr. 510).5OSHC 2201 (No. 87-2059, 1993). “[I]t is not enough for the Secretary to show than an employer
was aware of conduct or conditions constituting the alleged violation; such evidence is already
necessary to establish any violation . . . . A willful violation is differentiated by a heightened
awareness of the illegality of the conduct or conditions and by a state of mind of conscious
disregard or plain indifference.” Hern Iron Works, 16 BNA OSHC 1206, 1214 (No. 89-433,
1993). In other words, Complainant must show that, at the time of the violative act, the
employer was either actually aware that the act was unlawful or “that it possessed a state of mind
such that if it were informed of the standard, it would not care.” Propellex Corp., 18 BNA
OSHC 1677 (No. 96-0265, 1999). Thus, it is not enough to show that Respondent was merely
careless or displayed a lack of diligence. Beta Constr. Co., 16 BNA OSHC 1435 (No. 91-102,
1993). The Commission has found such heightened awareness where an employer has been
previously cited for a violation of the standard in question, is aware of the standard’s
requirements, and is on notice that a violative condition exists. See J.A. Jones, 15 BNA OSHC
2201; D.A. & L Caruso, Inc., 11 BNA OSHC 2138, 2142 (No. 79-5676, 1984).
Discussion
Citation 1, Item 4
Complainant alleged a serious violation of the Act in Citation 1, Item 4 as follows:
29 C.F.R. 1910.147(c)(7)(i): The employer did not provide training to
ensure that the purpose and function of the energy control program are
understood by employees and that the knowledge and skills required for
the safe application, usage and removal of the energy controls are acquired
by employees:
a) Basic Grain Products, Inc. – Coldwater, Ohio: On or about August 31,
2011, the employer did not assure that employees who perform
maintenance and cleaning operations on the conveyor located on the
mezzanine level located in the D Packing area were trained in the skills
required for the safe application, usage, and removal of the energy
controls. Employees that service the conveyor equipment were not trained
to lockout the machine to protect against caught-by hazards.
6
b) Basic Grain Products, Inc. – Coldwater, Ohio: On or about November
2, 2011, the employer did not assure that employees who perform
maintenance and cleaning operations on the topical auger located in the D
Seasoning area were trained in the skills required for the safe application,
usage, and removal of energy controls. Employees that service the auger
equipment were not trained to lockout the machines to protect against
amputation hazards.
The cited standard provides:
The employer shall provide training to ensure that the purpose and
function of the energy control program are understood by employees and
that the knowledge and skills required for the safe application, usage, and
removal of the energy controls are acquired by employees. The training
shall include the following:
(A) Each authorized employee shall receive training in the recognition of
applicable hazardous energy sources, the type and magnitude of the
energy available in the workplace, and the methods and means necessary
for energy isolation and control.
(B) Each affected employee shall be instructed in the purpose and use of
the energy control procedure.
(C) All other employees whose work operations are or may be in an area
where energy control procedures may be utilized, shall be instructed about
the procedure, and about the prohibition relating to attempts to restart or
reenergize machines or equipment which are locked out or tagged out.
29 C.F.R. § 1910.147(c)(7)(i).
When an employee begins his/her tenure at Respondent’s facility, they go through
orientation. (Tr. 83). As part of their orientation, employees watch a number of videos, fill out
paperwork, and do a walk-through tour of the plant. (Tr. 142–43). A large part of Respondent’s
training regime, however, relies on on-the-job, hands-on training. (Tr. 27, 30, 83). New
employees are paired with an experienced worker, who introduces the new employee to the
various areas of the facility and different job responsibilities. (Tr. 27, 34, 146, 193, 236).
According to Respondent, a supervisor oversees the training process and will review the new
employees’ training to evaluate their progress and determine if additional training is needed. (Tr.
7
34, 389). While all employees are trained in roughly the same manner, the content of their
training is different. In particular, prior to 2011, production employees were not provided with
LOTO training. (Tr. 131–32, 179, 312). Maintenance employees, on the other hand, were
shown a video that addressed LOTO, and were provided on-the-job training from experienced
maintenance workers. (Tr. 234–36). This difference in training is due, in part, to the fact that
maintenance workers were designated by Respondent to be in charge of LOTO. (Tr. 205, 312;
Ex. C-1 at 4).
In addition to seasoning and packaging, production employees clean equipment, such as
conveyors and augers, between different product runs. (Tr. 43–45). Depending on the particular
snack being made, as well as the seasonings being used, production employees will clean the
conveyors with either a dry or chemical wipe. (Tr. 41–42). In some instances, the belt is
completely removed by maintenance, and both the belt and frame are cleaned by production
employees. (Tr. 45–46). In other instances, the belt is simply “dry-wiped” while it is still on the
conveyor. Ms. Huston, Ms. Altenbach, and Mr. May all testified that, prior to the inspection in
2011, it was common practice to dry- or chemical-wipe the conveyor, not only with the belt on it,
but while the conveyor was running. (Tr. 42–43, 51, 116–17, 212). Likewise, Russell Jay,
another production employee, testified that, although he would power down the rotating drum
and auger during cleaning, it was not locked out. (Tr. 187–89).
A. Does the Cited Standard Apply?
The cited standard “covers the servicing and maintenance of machines and equipment in
which the unexpected energization or start up of the machines or equipment, or release of stored
energy could cause injuries to employees.” 29 C.F.R. § 1910.147(a)(1)(i). The standard “applies
to the control of energy during servicing and/or maintenance of machines and equipment.” Id. §
8
1910.147(a)(2). According to § 1910.147(b), “servicing and/or maintenance” specifically
includes, amongst other activities, lubrication, cleaning, and unjamming of machines. Id. §
1910.147(b). The Court finds the cited standard applies. 6 Ms. Huston and Mr. Jay performed
servicing and/or maintenance on machines/equipment in which unexpected energization or start-
up could (or did) cause injury.
B. Was the Cited Standard Violated?
The Court finds the terms of the standard were violated. The cited standard requires
Respondent to ensure that all of its employees, regardless of position, receive at least some
measure of training on LOTO. Id. § 1910.147(c)(7)(i). It is incumbent upon Respondent to
ensure that each employee receives LOTO training that is commensurate with his/her job duties
and exposure. See id. § 1910.147(c)(7)(i)(A)–(C). In that regard, the standard distinguishes
between “authorized” employees, “affected” employees, and everyone else. An “affected
employee” is one whose job “requires him/her to operate or use a machine or equipment on
which servicing or maintenance is being performed under lockout or tagout, or whose job
requires him/her to work in an area in which such servicing or maintenance is being performed.”
Id. § 1910.147(b). An “authorized employee” is “[a] person who locks out or tags out machines
or equipment in order to perform servicing or maintenance on that machine or equipment. An
affected employee becomes an authorized employee when that employee’s duties include
performing servicing or maintenance covered under this section.” Id.
Respondent clearly designated their maintenance employees as “authorized employees”,
as they were expected to perform LOTO on the machines and equipment they were servicing.
- Furthermore, considering that the scope and application paragraphs are applicable to each of the cited items, the
Court also finds that the standards cited in Citation 2, Items 1(a) and 1(b) apply to Respondent.9(Ex. C-1). Maintenance employees, in addition to the training previously discussed, were
provided with the proper tools, i.e., locks and tags, to perform LOTO. (Tr. 205–206).
Production employees, on the other hand, were not provided with LOTO tools, nor were
they given training to perform LOTO. (Tr. 312). Production employees were, at the very least,
“affected employees” pursuant to the standard because they clearly operated or used machines on
which servicing was performed under LOTO (or was supposed to be) and worked in areas in
which servicing or maintenance was being performed. Ms. Altenbach and Mr. May testified
that, prior to the 2011 inspection, they were aware that it was common practice to wipe down
conveyors as they were running, even though such an activity falls squarely within the definition
of servicing and/or maintenance, which requires LOTO under the standard. (Tr. 42–43, 51, 212).
That type of exposure means Respondent’s production employees were, at the least, “affected
employees”. Some of the “affected employees” at Respondent’s facility were also “authorized
employees” to the extent that they cleaned the equipment, which is defined as servicing and/or
maintenance activity. (Tr. 210; Ex. C-1, C-2).
To prove Respondent’s employees were not properly trained, Complainant “must show
that the cited employer failed to provide the instructions that a reasonably prudent employer
would have given in the same circumstances.” N&N Contractors, Inc., 18 BNA OSHC 2121
(No. 96-0606, 2000). If the employer rebuts the allegation of a training violation “by showing
that it has provided the type of training at issue, the burden shifts to the Secretary to show some
deficiency in the training provided.” Id. (citing American Sterilizer Co., 18 BNA OSHC 1082,
1087 (No. 91-2494, 1997)). Both Ms. Huston and Mr. Jay testified that they did not receive
LOTO training at orientation. (Tr. 130, 179). To the extent that both Ms. Huston and Mr. Jay
10
cleaned the machines/equipment, these “affected employees” became “authorized employees”,
which required training consistent with 29 C.F.R. § 1910.147(c)(7)(i)(A).
Regardless of whether production employees were properly characterized as “affected
employees” or “authorized employees”, Complainant established that Respondent failed to
provide the type of training that a reasonably prudent employer would have given under the
circumstances. The record clearly established that production employees were not provided with
LOTO tools, nor were they given training to perform LOTO. (Tr. 312).
Respondent attempts to rebut that allegation by stating that Complainant did not prove
whether such training was/was not provided during the hands-on, on-the-job training. The Court
finds this argument is without merit and confuses the parties’ respective burdens. First, without
question, Respondent failed to provide “authorized employee” training to its production
employees, who perform servicing/maintenance under the standard. 7 Second, once Complainant
established that Respondent did not provide its production employees with formal LOTO
training, it was incumbent upon Respondent to show that it did, in fact, provide such training.
Respondent has done nothing more than suggest that it was possible that such training occurred
during the on-the-job training sessions with experienced employees. This is not sufficient to
rebut Complainant’s evidence. In addition, such argument ignores the testimony of both Ms.
Huston and Mr. Jay who testified that they did not receive LOTO training at orientation. (Tr.
130, 179). That argument also disregards the testimony of Dana Nash, Respondent’s Human
Resources Manager, that the 2006 LOTO policy was not covered with production employees
until after the inspection in 2011. (Tr. 312). The Court finds the testimony of Mr. Jay, Ms. Nash
and Ms. Huston credible on this point. Any knowledge of LOTO exhibited by Respondent’s
- The Court would note, however, that it does not find that maintenance employees were not given training.
11production employees clearly came after the 2011 inspection. (Tr. 133, 192–93, 312).
Respondent violated the standard.
C. Were Respondent’s Employees Exposed to a Hazard?
The Court also finds that Respondent’s failure to properly train its employees caused
those employees to be exposed to hazards associated with the unexpected energization or start up
of equipment and machinery, such as pinch points and rotating shafts and sprockets that can
cause broken bones and the possibility of amputation. (Tr. 586–87, 594–95). As noted above,
both Ms. Huston and Mr. Jay were exposed to these types of injuries while cleaning equipment
that was not locked out. Further, as testified to by Mr. May and Ms. Altenbach, it appears that
many, if not all, of Respondent’s production employees engaged in cleaning activities while
equipment was still running or improperly locked out.
D. Was Respondent Aware of the Violative Condition?
It is well-established that members of Respondent’s management team—Ms. Altenbach
and Mr. May—knew that production employees were cleaning while equipment was energized
even though those employees were not trained as either authorized or affected employees. (Tr.
42–43, 212). See Revoli Const. Co., 19 OSHC 1682 (No. 00-0315, 2001) (holding that
knowledge and actions of supervisory personnel is generally imputed to the employer).
D. Was the Violation Properly Classified as Serious?
The violation was also serious. The Court finds the evidence supports that a serious
injury is the likely result if an accident were to occur. Mosser Constr., Inc., 23 BNA OSHC
1044, 1046 (No. 08-0631, 2010) (citation omitted); see Omaha Paper Stock Co. v. Sec’y of
Labor, 304 F.3d 779, 784 (8th Cir. 2002). Contrary to Respondent’s assertion, CSHO Majoros
credibly testified, based on her experience and education in the field of LOTO, that exposure to
12
moving machine parts without adequate training on LOTO, can result in amputations and
potentially fatalities. Her testimony is further bolstered by the incident that caused Ms. Huston’s
injuries. (Tr. 129–30).
Based on the foregoing, Citation 1, Item 4 will be AFFIRMED.
Citation 2, Item 1(a)
Complainant alleged a willful 8 violation of the Act in Citation 2, Item 1(a) as follows:
29 CFR 1910.147(c)(4)(i): Procedures were not developed, documented
and utilized for the control of potentially hazardous energy when
employees were engaged in activities covered by this section:
a) Basic Grain Products, Inc. – Coldwater, Ohio: On or about August 31,
2011, the employer failed to develop machine specific energy control
procedures to control hazardous energy when employees cleaned the
conveyor system located on the mezzanine level in the D Packaging Area.
Employees were exposed to caught-by hazards when maintaining the
equipment.
b) Basic Grain Products, Inc. – Coldwater, Ohio: On or about November
2, 2011, the employer failed to develop machine specific energy control
procedures to control hazardous energy when employees cleaned the
topical auger located in the D Seasoning Area during cleaning activities.
Employees were exposed to caught-by and amputation injuries in [sic]
when maintaining the equipment.
The cited standard provides:
Procedures shall be developed, documented and utilized for the control of
potentially hazardous energy when employees are engaged in the activities
covered by this section.
Note: Exception: The employer need not document the required procedure
for a particular machine or equipment, when all of the following elements
exist: (1) The machine or equipment has no potential for stored or residual
energy or reaccumulation of stored energy after shut down which could
endanger employees; (2) the machine or equipment has a single energy
source which can be readily identified and isolated; (3) the isolation and
locking out of that energy source will completely deenergize and
deactivate the machine or equipment; (4) the machine or equipment is
- Complainant alleged, in the alternative, that Citation 2, Item 1(a) was serious. (Tr. 659).
13isolated from that energy source and locked out during servicing or
maintenance; (5) a single lockout device will achieve a locked-out
condition; (6) the lockout device is under the exclusive control of the
authorized employee performing the servicing or maintenance; (7) the
servicing or maintenance does not create hazards for other employees; and
(8) the employer, in utilizing this exception, has had no accidents
involving the unexpected activation or reenergization of the machine or
equipment during servicing or maintenance. 9
29 C.F.R. § 1910.147(c)(4)(i).
The LOTO policy at issue in this case was drafted by Ms. Day in 2006 after an OSHA
inspection found LOTO violations on its puffer machines. (Tr. 442; Ex. C-1, C-2, C-3, R-2).
After reviewing the OSHA website, Ms. Day, who had no previous LOTO training, began
drafting a LOTO policy. (Tr. 447; Ex. C-2). At the request of Ms. Day, OSHA On-Site visited
Respondent’s facility and provided input on abatement of the citations issued in the 2006
inspection, including issues related to LOTO. (Tr. 442). Around that time, Ms. Day created a
revised version of the LOTO procedures, stemming from the input of both her research on the
OSHA website, as well as the visit from OSHA On-Site. (Tr. 448, 487). According to Ms. Day,
she submitted the revised LOTO policy to Complainant as part of the abatement required for
Citation 1, Item 4(b) from the 2006 inspection. (Tr. 442, 478–79; Ex. R-2). Complainant, and
more specifically, CSHO Majoros, conducted another inspection of Respondent’s facility in
2007; however, as noted above, that inspection was unrelated to LOTO issues. In 2011, CSHO
Majoros returned to Respondent’s facility and found that its LOTO procedures were either
deficient or non-existent for the first time.
A. Does the Cited Standard Apply?
Respondent’s facility has multiple types of machinery and equipment, such as puffers,
conveyors, ovens, and packaging equipment, that facilitate the making of its products. (Tr. 31,
- Respondent in its Post Trial brief did not argue any of the stated exceptions applied.
1439–40, 81–82, 181). Mr. May testified that, even within the group of machines known as
“puffers”, the machines may run on electrical power, hydraulics, pneumatics, or a combination
thereof. (Tr. 209). In other words, not only are there different types of equipment at the facility,
but even equipment of the same type has different sources of stored and potentially hazardous
energy. The Court finds the cited standard applies.
B. Was the Cited Standard Violated?
Notwithstanding the different types of machinery at Respondent’s facility, Respondent
only had a machine-specific lockout procedure for its puffer machines. (Tr. 453–54; Ex. C-2).
Complainant contends that the foregoing, coupled with the fact that Respondent’s LOTO
procedure is largely an unmodified copy of the sample LOTO procedure in Appendix A to 29
C.F.R. § 1910.147, establishes that Respondent failed to comply with 29 C.F.R. §
1910.147(c)(4)(i).
Section 1910.147(c)(4)(ii) requires that LOTO procedures “clearly and specifically
outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of
hazardous energy, and the means to enforce compliance . . . .” This includes, but is not limited
to:
(A) A specific statement of the intended use of the procedure:
(B) Specific procedural steps for shutting down, isolating, blocking and
securing machines or equipment to control hazardous energy;
(C) Specific procedural steps for the placement, removal and transfer of
lockout devices or tagout devices and the responsibility for them;
(D) Specific requirements for testing a machine or equipment to
determine and verify the effectiveness of lockout devices, tagout devices,
and other energy control measures.
29 C.F.R. § 1910.147(c)(4)(ii). In the context of the sample LOTO procedures found in
Appendix A of § 1910.147, Respondent is required to include information such as: (1) the
15
names of affected employees; (2) the types and magnitudes of energy; (3) the hazards; (4) the
methods to control the energy; (5) the types and locations of machines or equipment operating
controls; (6) the types and locations of energy isolating devices; (7) the types of stored energy
and methods to dissipate or restrain energy; and (8) the method of verifying the isolation of the
equipment. See Drexel Chem. Co., 17 BNA OSHC 1908 (No. 94-1460, 1997).
Notwithstanding the specifics addressed by the Commission in Drexel, “the standard is
written in performance-oriented language, providing considerable flexibility for employers to
tailor their energy control programs and procedures to their particular circumstances and working
conditions.” Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36,644,
36,656 (1989). This explains why the sample procedures in Appendix A of the standard are
written in such broad language: employers can literally fill in the blanks to accommodate the
varying types of machinery, energy sources, and working conditions that are present at their
workplace. See id. at 36,659 (discussing the distinction between a simple conveyor and a long
assembly line). Although the standard requires that the procedure be written in detail, this does
not mean that each and every machine must have a separate procedure; rather, a single procedure
may be sufficient if it applies to a group of machines with similar types of energy and tasks. Id.
at 36,670. However, to the extent that the standard is written in performance-oriented language,
employers must be wary of overgeneralization, which “can result in a document which has little
or no utility to the employee who must follow the procedure.” Id.
As was the case in Drexel, Respondent’s LOTO policy is an overgeneralized document
with little to no practical utility for the end user. See Drexel, 17 BNA OSHC 1908. This is
particularly evident under the section entitled “Specific Procedures”. (Ex. C-1). Respondent’s
“Specific Procedures” are almost a verbatim reproduction of Appendix A without any of the
16
specific information regarding, for example, the types and magnitudes of energy, the types and
locations of machines or equipment operating controls, or the types and locations of energy
isolating devices. (Ex. C-1). Instead, the procedures use catch-all, generic language, such as:
“Operate the switch, valve, or other energy isolating device(s) so that equipment is isolated from
it [sic] energy source(s). Stored energy (such as that in springs, elevated machine members,
rotating flywheels, hydraulic system, and air, gas, stream [sic], or water pressure, etc.) must be
dissipated or restrained by methods such as repositioning, blocking, bleeding down, etc.” (C-1).
Such generalized instructions are insufficient to provide guidance to an employee attempting to
perform LOTO procedures on a particular piece of machinery. As indicated in the narrative of
this citation item, there are no references to the conveyor system or topical auger, nor any
indication of the energy isolating devices associated therewith. Although Respondent drafted
somewhat specific procedures for the puffers (as represented by C-2), there is no evidence to
suggest that any of the other machines could be treated in a similar manner. This is underscored
by the fact that Mr. May discussed three separate types of stored energy associated with the
puffers—electric, hydraulic, and pneumatic. (Tr. 209, 216). The policy did not include
specifics as to how to address hydraulic and pneumatic stored energy on Respondent’s machines.
These omissions establish that Respondent violated the standard.
C. Were Employees Exposed to a Hazard?
For the same reasons mentioned above with respect to Citation 1, Item 4, the Court finds
that Respondent’s employees were exposed to the hazards associated with unexpected
energization or start up of machinery and equipment. The overgeneralized procedures utilized
by Respondent were insufficient to adequately apprise Respondent’s employees of the types of
17
energy associated with a particular machine and, consequently, did not inform them how to
safely and properly perform lockout or tagout.
D. Was Respondent Aware of the Violative Condition?
The Court finds Respondent was aware of the violative condition. As to knowledge, Ms.
Day was responsible for drafting and implementing the LOTO policy, which constitutes direct
knowledge of the violation. Furthermore, Respondent had constructive knowledge of the
condition in that, with the exercise of reasonable diligence, it should have been aware that its
policy was deficient. During the period between 2006 and 2011, Ms. Day could have performed
a more diligent search of OSHA’s website, including the applicable regulations, interpretations,
and policy documents, which would have placed her on notice that Respondent’s LOTO policy
was not in compliance with the standard.
E. Was the Violation of the Standard Properly Classified as Willful?
Complainant contends the violation of the standard was willful. In particular,
Complainant relies upon four key points: (1) Basic Grain consulted with OSHA On-Site to
discuss LOTO issues; 10 (2) Ms. Day obtained information regarding LOTO from OSHA’s
website; 11 (3) Ms. Day drafted the LOTO policy only for puffers, even though she knew that the
- Respondent consulted with OSHA Onsite and made the adjustments recommended by OSHA Onsite. Such
actions, however, do not warrant the conclusion that Respondent possessed heightened awareness of the illegality of
its conduct. Complainant has cited to no case to this effect. This type of conduct is what the law should expect of
an employer. To permit such consultation and subsequent revisions to form the basis of heightened awareness
would result in a chilling effect on employers to use this service and subject them to a willful violation for
exercising that right. The Court is convinced this is not a result it wants to sanction. Respondent’s actions in this
case differ from instances where a CSHO specifically issued prior warnings to a supervisor of the requirements of
the standard to have those warnings ignored. See MJP Construction Co., 19 BNA OSHC 1647-48 (No. 98-0502,
2001) (CSHO issued prior warnings to a supervisor to establish heightened knowledge); Pentecost Contracting
Group, 17 BNA 1953, 1955 (No. 92-3788, 1997) (same). - The Court does not find that merely consulting a website on a standard constitutes heightened awareness. It is
analogous to an employer reading a standard in hardcopy. Complainant has cited no case where this activity has
been used to find heightened awareness for a willful violation. Again, to sanction this argument would serve as a
deterrent for an employer to consult authoritative sources to assist them in implementing policies to make a
workplace safe.18facility had other machines and could not explain why she did not draft procedures for other
machines; and (4) Ms. Nash, who was responsible for Respondent’s OSHA 300 logs, accident
reports, and disciplinary records, failed to properly evaluate the root cause of multiple injuries
suffered by employees. While the Court finds that the foregoing points illustrate negligence on
behalf of Respondent, it does not find that Respondent exhibited heightened awareness of or
plain indifference to the requirements of the standard.
With respect to the question of heightened awareness, the Court would note that during
the period of time between the inspection in 2006 until the most recent inspection in 2011,
Respondent was never cited for a violation of any subsection of 29 C.F.R. § 1910.147.12 In
response to the inspection in 2006, Ms. Day drafted a LOTO policy that was discussed with
OSHA On-Site and revised in light of those discussions. (Tr. 446–47). That policy (C-1) was,
according to Ms. Day, submitted to Complainant in order to illustrate abatement of Citation 1,
Item 4(b) from Inspection Number 309442366 (2006 Inspection). (Ex. R-2 at 7 of 8 & 3 of 3).
Though CSHO Majoros contended that such action was not required for abatement, the Court
would point out that the parties were, in fact, discussing a different citation that did not require
abatement. (Tr. 511–12; Ex. R-2 at 6 of 8). 13 Complainant did not present evidence suggesting
that Ms. Day had not submitted the LOTO policy to satisfy its abatement obligations. In that
regard, to the extent that Ms. Day may have been informed of the need to develop a LOTO
policy (thereby according to the Complainant placing her on heightened awareness) and then did
- The Court finds this curious considering Respondent did not have a LOTO policy at all in 2006 and was
required, as part of the abatement, to draft and implement a LOTO policy. (Ex. R-2). - To undermine Ms. Day’s testimony that she developed the LOTO policy and submitted it for review,
Complainant focused on Citation 1, Item 3 in the 2006 inspection, which did not require the submission of a LOTO
policy as part of abatement. However, the Court notes that in Citation 1, Item 4(b) of the 2006 Inspection,
Complainant alleges that Respondent did not have a written procedure in place for employees to follow to perform
LOTO on puffer press 53. (Ex. R-2, p.3). Citation 1, Item 4(b) required abatement in the form of the development
of a written LOTO policy for puffer machines. Therefore, this evidence supports the testimony of Ms. Day as to the
reason for Respondent’s development of a LOTO policy, its revision, and its submission to Complainant.19not hear anything further from Complainant regarding the adequacy of Respondent’s LOTO
policy, it is reasonable to conclude that she honestly believed Respondent’s policy was
sufficient. (Tr. 485–86). It is also worth mentioning that the citation that prompted the writing
of the LOTO policy specifically referenced the puffer machines, which, to some extent, explains
the narrow focus of the LOTO policy. (Ex. C-2). Although Ms. Day, who had no prior LOTO
training, was likely in over her head in attempting to draft the policy, the Court cannot conclude
that Respondent, by consulting the OSHA website on LOTO, gained a heightened awareness of
the illegality of its conduct based upon the evidence in its totality.
Along those same lines, the Court does not find that Respondent exhibited conscious
disregard or plain indifference such that “it possessed a state of mind that if it were informed of
the standard, it would not care.” Propellex Corp., 18 BNA OSHC 1677. First, Ms. Day
reviewed information regarding LOTO on the OSHA website and responded to the suggestions
of OSHA On-Site by modifying Respondent’s LOTO policy. Even if her efforts were
insufficient for the purposes of the standard, she made an effort to comply. See Dayton Tire v.
Sec’y of Labor, 671 F.3d 1249, 1255 (D.C. Cir. 2012) (“A ‘good faith reasonable belief by an
employer that its conduct conformed to the law negates a finding of willfulness.’” (quoting A.J.
McNulty & Co. v. Sec’y of Labor, 283 F.3d 328, 338 (D.C. Cir. 2002))). The fact that revisions
were made and authoritative resources were consulted reflects a good faith effort on behalf of
Respondent and does not support a finding of conscious disregard or plain indifference.
Likewise, the Court does not believe that the injuries suffered by Respondent’s
employees during the period between 2008 and 2011, taken alone or in combination with the
above, establish heightened awareness or plain indifference to the insufficiency of the LOTO
policy. Clearly, a more searching review of the injury data would have disclosed a problem with
20
the enforcement of the LOTO policy itself; however, such a review would not uncover
Respondent’s failure to conform its LOTO policy to the requirements of the standard. Rather, it
would uncover the fact that supervisors and the maintenance team failed to enforce even the
most basic tenant of its flawed policy—a policy that required shut down and lockout of energy
sources. Just because Complainant reached that conclusion on the basis of the facts presented
does not establish that Respondent’s failure to do so constituted plain indifference or heightened
awareness. See id. (citing C.N. Flag & Co., Inc., 2 BNA OSHC 1539 (No. 1409, 1975) (“[S]uch
conduct should not be construed as constituting a willful violation of the [OSH] Act merely
because Labor holds a contrary opinion on the facts and advises the employer of that opinion.”).
The Court finds that Complainant failed to establish that Respondent’s violation of the cited
standard was willful.
F. If the Cited Violation is not Willful, in the Alternative, is it Serious?
Though the Court does not find Respondent’s violation of § 1910.147(c)(4)(i) was
willful, it does find that the violation was serious for the same reasons stated above with respect
to Citation 1, Item 4. Respondent’s employees were not given adequate instructions to perform
LOTO on the multitude of machines present at the facility. The failure to do so can, and in some
instances did, cause injuries that result in serious physical harm. Citation 2, Item 1(a) will be
AFFIRMED as a serious violation.
Citation 2, Item 1(b)
Complainant alleged a willful 14 violation of the Act in Citation 2, Item 1(a) as follows:
29 CFR 1910.147(d)(4)(i): Lockout or tagout devices were not affixed to
each energy isolating device by authorized employees:
- Complainant alleged, in the alternative, that Citation 2, Item 1(b) was serious. (Tr. 659).
21a) Basic Grain Products, Inc. – Coldwater, Ohio: On or about August 31,
2011, the conveyor located on the mezzanine level of the D Packaging
Area was not locked out when employees were engaged in cleaning
operations. An employee received serious injuries from the rotating parts
of the conveyor while performing cleaning operations.b) Basic Grain Products, Inc. – Coldwater, Ohio: On or about November 2, 2011, the topical auger located in the D Seasoning Area was not locked out when employees were engaged in cleaning operations. Employees cleaning the auger were exposed to amputation hazards. The cited standard provides: Lockout or tagout devices shall be affixed to each energy isolating device by authorized employees.
29 C.F.R. § 1910.147(d)(4)(i).
A. Does the Cited Standard Apply?
Ms. Huston was assigned to clean the frame of the conveyor in the Sector D Packaging
Area by her supervisor, Sherrie Altenbach. (Tr. 53, 120–21; Ex. C-12). Maintenance removed
the belt to accommodate the cleaning process. (Tr. 122, 128–29). Ms. Huston started cleaning
the conveyor frame at the end opposite the sprockets. (Ex. C-12). At some point during the
process, Ms. Altenbach told Ms. Huston to take lunch. (Tr. 64–65). When Ms. Huston returned,
she started cleaning the conveyor where Ms. Altenbach had left off. (Tr. 65, 126). As she
rounded the end of the conveyor frame, Ms. Huston was caught in the moving sprockets of the
conveyor and suffered severe injuries. (Tr. 128–30). At trial, Ms. Altenbach stated that she did
not remember whether the sprockets were in operation while she was cleaning; 15 however,
CSHO Majoros credibly testified that Ms. Altenbach had told her that she observed the conveyor
was running prior to Ms. Huston returning from lunch and that she did not turn it off before
- In response to numerous questions about the incident, Ms. Altenbach repeatedly stated, “I don’t remember”,
lending further credence to Ms. Huston’s and CSHO Majoros’ testimony. (Tr. 64–68).22instructing Ms. Huston to work on it. (Tr. 558–59). The Court finds that the cited standard
applies to the work activity in the Sector D Packaging Area.
Mr. Jay, on the other hand, testified that he worked as a seasoner on the Sector D Line.
As a part of his responsibilities, he would clean and maintain the auger and rotating drum that
applied seasoning to the various snack products. (Tr. 180–81, 185–86). As noted above, Mr. Jay
testified that, prior to the inspection in 2011, he was trained to merely shut down the auger and
drum in order to clean it out; however, neither he nor a member of maintenance actually locked
out the equipment.
Respondent argues that, insofar as the auger is concerned, 16 Complaint did not prove that
the standard applies because there was no evidence establishing that employees were required to
place their body into an area on a machine where work is actually performed. See 29 C.F.R. §
1910.147(a)(2)(ii)(B). This is incorrect. Although Mr. Jay testified that the picture did not
adequately show the auger, he did state that both the auger and drum rotated during operation.
(Tr. 185–86). The moving parts created a pinch point hazard in the event that the machine was
unexpectedly energized during cleaning. (Tr. 594–95). This potential for unexpected
energization, as well as the failure to lock or tag it out, exposed Mr. Jay and Ms. Huston to the
potential for serious injuries. Thus, the standard applies to the cleaning of the auger on the
Section D Line.
B. Was the Cited Standard Violated?
The failure to lockout/tagout the topical auger in Sector D or the conveyor system in
Sector D Packaging Area is a clear violation of the cited standard. Although it is a small step to
conclude that Complainant proved a violation of 29 C.F.R. § 1910.147(d)(4)(i), some additional
- Complainant did not need to prove this fact to uphold the violation, as it was clear that Ms. Huston was required
to place her body in an area on the conveyor where work was actually performed.23discussion is warranted in light of the fact that Complainant characterized this violation as
willful.
C. Were Any Employees Exposed to a Hazard?
The Court previously found that Ms. Huston and Mr. Jay were exposed to hazards
associated with the failure to lockout/tagout the conveyor on the mezzanine level of the Sector D
Packaging Area and the topical auger in the Sector D Seasoning Area, respectively. Admittedly,
the previously discussed violations addressed LOTO training and procedures; however, it is
because of those violations that the machines in question were not locked-out or tagged-out
while Ms. Huston and Mr. Jay were working on them.
D. Was Respondent Aware of the Violative Conditions?
In both instances, Respondent either knew or, with the exercise of reasonable diligence,
could have known of the violative condition. With respect to the accident involving Ms. Huston,
Ms. Altenbach saw the conveyor was operating and failed to turn it off, let alone lock or tag it
out, before Ms. Huston resumed her cleaning activities after lunch. Ms. Altenbach was a
supervisor. The actions and knowledge of supervisory personnel are generally imputed to their
employers. See Revoli Const. Co., 19 OSHC 1682, supra.
Although Mr. Jay was not directly observed by a supervisor, his work occurred in the
open on a regular basis and should have been observed by a member of Respondent’s
management team. (Tr. 190, Ex. C-15). To establish knowledge, the Complainant must prove
“that the ‘employer knew or could have known with the exercise of reasonable diligence of the
conditions constituting the violation.’” Contour Erection & Siding Sys., Inc., 22 BNA OSHC
1072, 1073 (No. 06-0792, 2007) (citation omitted). See N & N Contractors, Inc. v. OSHRC, 255
F.3d 122, 127 (4th Cir. 2001) (employer has constructive knowledge of a violation if employer
24
fails to use reasonable diligence to discern the presence of a violative condition);Gen. Motors
Corp., 22 BNA OSHC 1072, 1073 (No. 06-0792, 2007) (“In assessing reasonable diligence, the
Commission has considered ‘several factors, including the employer’s obligation to have
adequate work rules and training programs, to adequately supervise employees, to anticipate
hazards to which employees may be exposed, and to take measures to prevent the occurrence of
violations.’”) (citations omitted).
Mr. Jay’s experience illustrates a larger problem regarding employee training and LOTO
procedures at Respondent’s facility—everyone is trained by an experienced employee, but it
does not appear as if supervisors perform meaningful and effective follow-up with new
employees to ensure that they were being properly trained. For example, two supervisors, Ms.
Altenbach and Mr. May, were aware that conveyors were cleaned without powering them down,
but they apparently did not prevent the practice. Although the Plant Manager and Human
Resources Manager stated that they were not aware that conveyors were being cleaned this way,
there is no evidence to suggest that, until late 2010, they took positive steps to uncover and
address such activities. (Tr. 383, 459–60; Ex. C-4).
Further, there are virtually no specific, written work safety rules that govern employee
conduct at Respondent’s facility. The section regarding safety rules in Respondent’s Employee
Handbook is comprised of roughly two, two-sentence paragraphs, neither of which provides the
kind of explicit direction necessary to foster good working practices or prevent unsafe conduct.
(Ex. C-5 at 15).
The two cited instances reflect a failure of oversight, a failure of inspection, a lack of
adequate work safety rules, and a failure to enforce what work rules were in place. Accordingly,
the Court finds that Respondent knew or could have known of the violative conditions.
25
E. Was the Violation of the Standard Properly Classified as Willful?
The state of knowledge as previously discussed and the overall lack of oversight at
Respondent’s facility leads the Court to find that this violation was willful. In particular, there
are three factors the Court considered in making this determination.
First, Ms. Altenbach knew that the conveyor was operating when she directed Ms.
Huston to clean it. Ms. Altenbach also knew that cleaning a conveyor with the belt removed also
required LOTO. (Tr. 72). Even though the record is not clear about whether Ms. Altenbach had
the authority to lock out the conveyor (Tr. 72), she nonetheless was aware of her obligation to
ensure that the conveyor was locked. (Tr. 87–88). This failure, coupled with her repeated failure
to prevent employees from wiping moving conveyor belts illustrates a conscious disregard of the
standard and Respondent’s LOTO policy, both of which characterize cleaning as “servicing
and/or maintenance” that requires LOTO. (C-1).
Second, the Court is particularly troubled by the actions of Mr. May, the Maintenance
Supervisor. Due to the structure of Respondent’s LOTO policy, Mr. May, as the head of
maintenance, had overall control and supervision for LOTO training and compliance. (Ex C-1).
The problem, however, is that from 2006 to 2010, there were no records that his maintenance
crew was trained in LOTO procedures. Although lack of training records does not, in and of
itself, indicate that the maintenance crew was not trained, Mr. May’s attitude towards training
and discipline reflect a conscious disregard of the LOTO requirement. As to training, Mr. May
stated that new hires would work with an experienced maintenance employee to learn how to
lock out a particular machine; however, he also indicated that the generalized LOTO procedures
were sufficient because the control of energy sources “would be common sense to somebody
who is a maintenance mechanic . . . .” (Tr. 236, 239). The lack of specific procedures and
26
presumption of competency is only made worse by the fact that, of the LOTO-related injuries
that were reported between 2008 and the 2011, two of the injured employees were part of the
maintenance crew, one of whom was injured twice. (Ex. C-6 at 1, 9, and 13).
Further complicating matters is the fact that Mr. May failed to adhere to Respondent’s
disciplinary policy, which requires progressive discipline based upon the nature of the infraction
and the number infractions committed. (Ex. C-5). The policy requires that all disciplinary
actions be documented, whether verbal or otherwise. (Id.). Mr. May, however, rarely, if ever,
issued a written disciplinary notice, relying instead on talking and/or yelling at the employee.
(Tr. 242, 604–606). Further, Mr. May did not communicate such verbal disciplinary actions to
the human resources department so individuals in that department could track LOTO infractions
and implement any needed corrections. (Tr. 288).
Third, although the injury/accident reports did not necessarily compel the conclusion of
willfulness with respect to the sufficiency of the LOTO policy, the Court finds that the
injury/accident reports do compel such a conclusion with respect to the overall failure to lockout
or tagout as required by Respondent’s own policy. Put simply, there was a policy in place that
directed employees to use LOTO. Unfortunately, however, the evidence shows that neither Mr.
May, who was in charge of the LOTO program, nor Ms. Day, the plant manager, ever took
proper action to ensure that the LOTO policy was ever followed. Over the course of three years,
Respondent documented thirteen accidents, almost all of which refer to the need to shut off,
power down, or lock out the piece of equipment that was being worked on. (C-6). One of the
reports involved a supervisor. (Ex. C-6 at 3). In lieu of taking steps to ensure that its LOTO
27
policy was being adhered to, Respondent responded by disciplining individuals on the basis of
violating work safety rules that do not appear in any written document. 17
Even more curious is the fact that, in response to the rash of LOTO-related incidents,
neither Ms. Day nor Ms. Nash discussed the matter with Mr. May, who was in charge of
implementing the LOTO policy. Production employees were not authorized to perform LOTO;
rather, it was the maintenance crew’s responsibility to do so. However, as has been shown, not
only was Mr. May aware that certain cleaning operations were being performed by production
employees without LOTO—to whom he issued no discipline nor brought this activity to the
attention of those who could discipline the production employees—he failed to properly
discipline his own employees for violations of that policy. The fact that Respondent possessed
this information illustrates heightened awareness of the violation, and the failure to respond to
that information illustrates a conscious disregard.
Respondent proffers three main arguments against a finding of willfulness: (1) accidents
that occurred more than 6 months prior to the issuance of the Citation cannot be considered,
because they are outside the statute of limitations; (2) those accidents occurred on a number of
different machines and cannot be used to established heightened awareness of LOTO not being
used on the conveyor or topical auger; and (3) Respondent properly responded to the information
that it had.
First, although the six-month statute of limitations limits Complainant’s ability to cite
Respondent for individual violations of the standard, it does not prevent Complainant from using
prior incidents to establish Respondent’s state of mind. The following passage is instructive:
- This is particularly peculiar in the case of Ms. Huston, who was cited for failing to ensure that equipment was
turned off before cleaning, since it was not her duty to do so and because it was Ms. Altenbach who directed her to
clean the conveyor while it was in operation.28Although we agree with the judge that the incidents themselves would not
support a violation of § 1926.852(a) because they occurred outside the
limitations period, evidence establishing these “near-misses” could show
that CWC had “actual knowledge that [additional or different protection]
was necessary under the circumstances.” S&H Riggers, 659 F.2d at 1285.
Additionally, evidence of prior exposure to falling object hazards would
be relevant to whether the company had a willful state of mind. See, e.g.,
Barbosa Group, Inc., 21 BNA OSHC 1865, 1868, 2004-09 CCH OSHD ¶
32,877, p. 53,198 (No. 02-0865, 2007) (“Willful violations are
characterized [in part] by ... a heightened awareness that ... the conditions
at [an employer's] workplace present a hazard.”) (internal quotation marks
and citation omitted), aff'd, 296 F. App'x 211 (2d Cir. 2008).
Cleveland Wrecking Co., 2010 WL 9438598 at * 9 (No. 07-0437, 2010). In other words,
although the individual instances are outside of the statute of limitations and cannot be cited in
and of themselves, such instances are perfectly acceptable as evidence of Respondent’s state of
mind relative to the two violations indicated in Citation 2, Item 2(b).
Second, although the past accidents occurred on pieces of machinery different than those
cited by Complainant, that does not negate heightened awareness. All that the law requires is
heightened awareness of a particular hazard or condition—in this case, unexpected release of
energy—which is the same regardless of the type of machine. See id. (citing Barbosa Group,
Inc., 21 BNA OSHC 1865, 1868). If anything, the fact that the same types of injuries occurred
as a result of employees failing to turn off/power down different types of machinery indicate a
systemic, rather than machine-specific, problem. At bottom, Respondent was confronted with
thirteen injuries over the course of a three-year period, almost all of which are attributable to the
failure to power down or lock out equipment. Respondent’s argument that it was not aware of a
LOTO problem when faced with these facts is simply not believable.
Third, along those same lines, Respondent contends that its situation is akin to that of the
respondent in Dayton Tire, wherein the employer was charged with failing to respond to five
incidents that indicated a problem with its LOTO program. See Dayton Tire v. Sec’y of Labor,
29
671 F.3d 1249 (D.C. Cir. 2012). Four of those incidents involved employees and inspectors that
expressed their concerns regarding the company’s LOTO practices. Id. at 1256–57. The other
incident involved the death of an employee. Id. at 1257. The D.C. Circuit found that Dayton’s
failure to act in the face of these incidents “evidence[d] negligence at most” because Dayton’s
manager acted on a good faith belief that the LOTO exemption for production processes applied
to Dayton’s employees (service and maintenance was the responsibility of an independent
company). Id. While, on the face of it, the facts of Dayton Tire appear analogous to the present
case, there are three main areas where the analogy breaks down.
First, Respondent was not merely provided with complaints or concerns about its safety
process; rather, it was confronted with thirteen separate injury-producing accidents that stemmed
from a failure to properly lockout or tagout. Second, this is not a simple matter of whether
Respondent had a good faith belief that a legal exception to the standard applied to its conduct.
Although Respondent created a division between its production employees and its maintenance
employees by allocating LOTO responsibilities to its maintenance crew, Respondent’s
production employees were still injured in LOTO-related accidents on 10 separate occasions
between 2008 and 2011. (Ex. C-6). And finally, Respondent had actual knowledge that
production employees performed work on machines that were not shut down and locked out and
refused to cease such activity.
Respondent claims that it addressed this problem by disciplining and coaching employees
and by holding discussions during pre-shift meetings. The Commission has held that good faith
efforts to correct a particular hazard can negate a claim of willfulness; however, the Commission
applies a test of objective reasonableness to determine whether those efforts were in good faith.
See J.A. Jones, 15 BNA OSHC 2201 (citing A.P. O’Horo, 14 BNA OSHC 2004, 2013 (No. 85-
30
369, 1991); Calang Corp., 14 BNA OSHC 1789 (No. 85-319, 1990)). If this case was about
Respondent’s failure to ensure proper LOTO in response to a couple of injuries, then perhaps
written discipline and coaching would likely be sufficient. This is not a case involving a couple
of injuries. Respondent ignored the fact that the most of the injured employees were never
trained, let alone authorized, to perform LOTO. In fact, many of those employees were
disciplined for violating work rules that only exist in materials that are provided to the
maintenance crew; namely, the LOTO policy. (Tr. 133, 312; Ex. C-1). Notwithstanding the
discipline and “coaching” sessions, a supervisor, production employees, and even a few
maintenance employees, continued to be injured. The inadequacy of Respondent’s response to
the injuries is highlighted by the actions of Ms. Altenbach and Mr. May, who, although
responsible for ensuring compliance with company safety rules, were aware of violative behavior
(i.e., dry and chemical wiping of moving conveyors) and, in Ms. Altenbach’s case, directed an
employee to violate those rules. See Tampa Shipyards, Inc., 15 BNA OSHC 1533 (No. 86-360,
1992) (holding employer responsible for plain indifference to employee safety that leadermen
showed by their reckless practices). Even if Respondent’s discipline and coaching program as
outlined in the evidence was deemed by the Court to be a “good safety program” (which the
Court does not find) such program is insufficient to negate willfulness where there is an absence
of any evidence the employer enforced its safety rules. Rawson Contractors, Inc., 20 BNA
OSHC 1078, 1082 (No. 99-0018, 2003). From top to bottom, Respondent consciously
disregarded a systemic problem with the implementation of its own LOTO policy (even though
deficient) and failed to respond in an objectively reasonable manner. Accordingly, with respect
to both instances, Citation 2, Item 1(b) shall be AFFIRMED as willful.
31
Penalty
In determining the appropriate penalty for affirmed violations, section 17(j) of the Act
requires the Commission to give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the
employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,
15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and
its judges conduct de novo penalty determinations and have full discretion to assess penalties
based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel
Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138
(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).
Respondent is a medium-sized employer, employing approximately 160 employees at
any given time. (Tr. 309). CSHO Majoros stated that she had recommended a ten-percent
reduction in penalty on the basis of Respondent’s size; however, the Toledo Area Director
declined to apply that reduction. (Tr. 562). With the exception of the decision not to apply the
ten-percent reduction on the basis of size, the Court agrees with CSHO Majoros’ conclusions
regarding the gravity of Citation 1, Item 4. (Tr. 560–62). Accordingly, the Court shall assess a
penalty of $6,300.00 for Citation 1, Item 4.
For penalty purposes, the Court shall group Citation 2, Items 1(a) and 1(b) as
Complainant has done. As with Citation 1, Item 4, the Court concurs with CSHO Majoros’
assessments regarding gravity and likelihood and her initial determination to apply a ten-percent
reduction. (Tr. 595–611). The repeated injuries and Respondent’s meager response thereto
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justify the willful characterization and a significant penalty. Accordingly, the Court shall assess
a grouped penalty of $63,000.00 for Citation 2, Items (a) and 1(b).
ORDER
The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing
Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1 is MODIFIED to an “other-than-serious” violation, AFFIRMED as
modified, and a penalty of $3,000.00 is ASSESSED.
2. Citation 1, Items 2(a), 2(b), and 3 are AFFIRMED as a single “serious” violation, and
a penalty of $4,000.00 is ASSESSED.
3. Citation 1, Items 5 and 6 are AFFIRMED as a single “serious” violation, and a
penalty of $7,000.00 is ASSESSED.
4. Citation 1, Item 7 is MODIFIED to “other-than-serious”, AFFIRMED as modified,
and a penalty of $2,000.00 is ASSESSED.
5. Citation 1, Item 4 is AFFIRMED, and a penalty of $6,300.00 is ASSESSED.
6. Citation 2, Item 1(a) is MODIFIED to a “serious” violation and AFFIRMED as
modified. Citation 2, Item 1(b) is AFFIRMED as a willful violation. A grouped
penalty of $63,000.00 is ASSESSED for Citation 2, Items 1(a) and 1(b).
SO ORDERED
/s/
Patrick B. Augustine
Judge, OSHRC
Date: November 5, 2013
Denver, Colorado
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