Doyle K. Beckham d/b/a DKB Construction

Read the official release (oshrc.gov)

Plain-English summary

DKB Construction performed framing, roofing, and carpentry work at an assisted-living project on the Hopi Indian Reservation. Its written policy required employees to supply and maintain basic personal protective equipment, and the evidence showed that workers paid for items such as hard hats and safety glasses. The judge affirmed the payment violation but reduced it to other-than-serious because the dispute concerned who paid for PPE, not whether employees used it. A second item alleged that worn rear tires made a rough-terrain forklift unsafe. That item was vacated because the tires were foam-filled and OSHA presented no standard language, technical evidence, or operating history showing that their condition was unsafe. The final penalty was $500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.95(d)(1); 29 C.F.R. § 1926.602(c)(1)(vi)
• Outcome: The PPE payment item was affirmed as other-than-serious with a $500 penalty, and the forklift tire item was vacated.
• Key point: An employer cannot make employee ownership of required PPE a condition of employment, while equipment-condition allegations still require proof that the cited condition was unsafe under the governing standard.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                    Complainant,
                                                         DOCKET NO. 12-2151
               v.

DOYLE K. BECKHAM d/b/a DKB
CONSTRUCTION,

                    Respondent.

Appearances:

    Luis A. Garcia, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles, CA
             For Complainant

    Doyle K. Beckham, Owner of DKB Construction, Tucson, AZ
            For Respondent

Before: Administrative Law Judge Brian A. Duncan

                                    DECISION AND ORDER

                                        Procedural History

    This matter is before the Occupational Safety and Health Review Commission

(“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970,

29 U.S.C. § 651 et seq. (“the Act”). On April 30, 2012, the Occupational Safety and Health

Administration (“OSHA”) inspected a DKB Construction (“Respondent”) jobsite located in Tuba

City, Arizona, on the Hopi Indian Reservation (“jobsite”). As a result of that inspection, OSHA

issued a Citation and Notification of Penalty (“Citation”) to Respondent alleging two serious

violations of the Act with total proposed penalties of $3,200.00. Respondent timely contested

the Citation. A trial was conducted in Tucson, Arizona on April 18–19, 2013. The parties

submitted post-trial briefs for consideration.
 Stipulations

    1. The jobsite is a Tuba City assisted living facility, Tuba City, Arizona 86045. (Tr. 56).1

    2. The Review Commission has jurisdiction over this action and the parties pursuant to

       Section 10(c) of the Occupational Safety and Health Act of 1970, as amended. (Tr. 56).

    3. The general contractor on the jobsite was Brycon Construction. (Tr. 56).

    4. DKB Construction (hereinafter referred to as “DKB”) was a subcontractor on the jobsite.

       (Tr. 56).

    5. DKB is a sole proprietorship owned by the Respondent, who is identified as Doyle

       Beckham. (Tr. 56).

    6. DKB’s business address is 301 East Fort Lowell Road in Tucson, Arizona 85705. (Tr.

       56).

    7. On April 30, 2012, Frank Ponce (carpenter); Anthony French (foreman in training);

       Shannon Lee Naha (carpenter); Gale Albert (carpenter); and Dominic Benton (carpenter)

       were employees of DKB working on the jobsite. (Tr. 56).

    8. All DKB employees are provided a copy of a company policy statement and they are

       required to read and familiarize themselves with the terms of the company policy

       statement. (Tr. 57).

    9. At the time of CSHO Moon’s inspection at the jobsite, DKB’s employees were working

       in and around a single story wood frame construction building. (Tr. 57).

    10. At the jobsite, DKB’s employees use various hand tools and power operated hand tools

       including nail guns, saws, and hammers. (Tr. 57).

    11. At the jobsite was one of ten DKB-owned Gradall rough terrain forklifts identified as

       Unit Number 5, Model 534-D9-45, Serial Number 0644683 (hereinafter referred to as the

1
The Court notes that the actual project name was the “Hopi Assisted Living Facility” according to Ex. C-4, p. 24.

                                                        2

“forklift”). (Tr. 57).

12. Upon CSHO David Moon’s arrival at the jobsite, DKB’s forklift was not being operated.

   (Tr. 58).

13. DKB is not asserting any affirmative defenses. (Tr. 58).

14. Anthony French is currently employed by DKB. (Tr. 327).

15. Anthony French’s position as a foreman is his current position. (Tr. 327).

16. Anthony French’s position and his job duties [at the time of trial] are similar to what he

   had on April 30, 2012. (Tr. 327).

17. Anthony French met CSHO Moon at the jobsite on April 30, 2012 and participated in the

   opening conference. (Tr. 327).

18. Anthony French accompanied CSHO Moon on the walkthrough throughout the jobsite

   for the entire time of the walk. (Tr. 327).

19. Frank Ponce purchased all of the PPE that is listed under the company policy statement

   he signed, under Section 19.4. (Tr. 411).

20. Frank Ponce purchased those items before he was hired by Mr. Beckham. (Tr. 411).

                                       Jurisdiction

   Jurisdiction is conferred upon the Commission pursuant to Section 10(c) of the Act.

Based on the parties’ stipulations and the record, Respondent was an employer engaged in a

business and industry affecting interstate commerce within the meaning of Sections 3(3) and 3(5)

of the Act, 29 U.S.C. § 652(5). Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). Although

Arizona manages its own OSHA state plan, it is undisputed that Respondent was engaged in

construction activities on the federally recognized Hopi Indian Reservation, which is subject to

Federal OSHA jurisdiction. (Tr. 84, 133). See 29 C.F.R. § 1975.4(b)(3); Mashantucket Sand &

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Gravel, 95 F.3d 174 (2nd Cir. 1996); Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113

(9th Cir. 1985); U.S. DOL v. OSHRC, 935 F.2d 182 (9th Cir. 1991).

                                        Background

   Five witnesses testified at trial: (1) David Moon, OSHA Compliance Safety and Health

Officer (“CSHO”); (2) Anthony French, Respondent’s jobsite Foreman; (3) William Keller,

Respondent’s Field Operations Manager; (4) Beatrice Grassman, Respondent’s Business

Manager; and (5) Doyle Beckham, Respondent. (Tr. 60, 326, 415, 474, 486).

   In April of 2012, CSHO David Moon was assigned to inspect work activities on the Hopi

Indian Reservation in Arizona for compliance with OSHA regulations. (Tr. 63–64, 130–132).

One of the projects occurring at the time involved the construction of the Hopi Assisted Living

Facility in Tuba City, Arizona (on the Hopi Reservation). (Tr. 64–65). Therefore, on April 30,

2012, CSHO Moon initiated an inspection of that jobsite. (Tr. 64–65). He learned that

Respondent, a subcontractor on the project, employed a crew of five individuals who were

performing framing, roofing, and related carpentry work. (Tr. 67–68, 153, 448; Ex. C-3, and C-4,

pp. 24, 36, 39). Based upon CSHO Moon’s interviews, observations, and measurements, OSHA

issued the following two citation items that are in dispute in this case.

                                         Discussion

    To establish a violation of an OSHA standard, Complainant must prove, by a

preponderance of the evidence, that: (1) the standard applied to the cited condition; (2) the

employer failed to comply with the terms of the cited standard; (3) employees were exposed or

had access to the violative condition, and (4) the employer had actual or constructive knowledge

of the violative condition (i.e. the employer knew, or with the exercise of reasonable diligence

could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994).

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A violation is “serious” if there was a substantial probability that death or serious

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k).

Complainant need not show that there was a substantial probability that an accident would

actually occur; she need only show that if an accident occurred, serious physical harm could

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15

BNA OSHC 2072 (No. 88-0523, 1993).

                                  Citation 1, Item 1

   Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

           29 C.F.R. § 1926.95(d)(1): Except as provided by paragraphs
           (d)(2) through (d)(6) of this section, the protective equipment,
           including personal protective equipment (PPE), used to comply
           with this part, were not provided by the employer at no cost to
           employees:

           (a) On or about April 30, 2012, and at times prior thereto, the
           employer did not provide personal protective equipment at no cost
           to employees.

   The cited standard provides:

           (d) Payment for protective equipment. (1) Except as provided by
           paragraphs (d)(2) through (d)(6) of this section, the protective
           equipment, including personal protective equipment (PPE), used to
           comply with this part, shall be provided by the employer at no cost
           to employees.


   It is important to emphasize at the outset that Citation 1, Item 1 involves failure of an

employer to pay for PPE, not the failure of the Respondent to require appropriate PPE, or the

failure of employees to actually use appropriate PPE. (Tr. 100-101, 113-114). Anthony French

was Respondent’s foreman on this jobsite. He directed the other four employees’ work, and was

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responsible for jobsite safety. (Tr. 354, 458). CSHO Moon interviewed all five of Respondent’s

employees, including Foreman French, and was consistently told that PPE was the employees’

responsibility, and that pre-purchasing basic PPE was a condition of employment for new

employees. (Tr. 85-88, 95, 292). It was undisputed that carpenter Frank Ponce purchased all of

the required PPE items listed in Respondent’s employee manual before starting work. (Stip. No.

19). Foreman French told CSHO Moon during the inspection that even he purchased his own

PPE, including hard hats and safety glasses – but could not remember whether his owning those

items was a pre-requisite back when he was hired. (Tr. 102, 293, 365–366, 392–393).

   Respondent’s written policy on PPE in effect at the time of the inspection, which all five

employees at the jobsite were required to sign, stated:

           19.4 Supplied by Employee
           Employees performing construction work tasks shall provide and
           maintain for their own use the basic tools of the trade and personal
           protective equipment (less personal fall arrest equipment) essential
           to perform work tasks while performing Company business. Any
           wear, damage, theft, or loss of any kind to employee-owned tools,
           equipment, or motor vehicles used on Company property or for
           performing Company business shall be at the employee’s risk, and
           no compensation for wear and tear, damage, theft, or loss of any
           kind will be given by this Company.
           […]
           The following shall be the minimum requirement for personal
           protective equipment that is to be supplied and maintained by each
           employee performing construction duties:
           (a) Gloves.
           (b) Hard Hat.
           (c) Hearing Protection.
           (d) Long pants.
           (e) T-shirt (long sleeved shirt recommended).
           (f) Safety Spectacles, (2 pair, clear and tinted).
           (g) Steel-toed Footwear.
           (h) Sunscreen.

(Ex. C-8, pp. 65, 81, 98, 113, 129).

   Foreman French testified that he understood this policy to mean that tools of the trade



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(carpentry) and required PPE were his, and his crew’s, own responsibility to provide. (Tr. 358–

359, 367). He further testified that the basic PPE required for this particular job included a hard

hat, safety glasses, safety vest, face mask, ear plugs, steel-toed footwear, and jeans. (Tr. 362).

CSHO Moon observed work activities at the jobsite, such as the use of cutting tools, overhead

objects and materials, and hazards posed by mobile equipment, which necessitated the use of

many of the PPE items listed in Respondent’s employee handbook and discussed by Foreman

French. (Tr. 110–111, 293). Foreman French later clarified that Respondent’s employees were

responsible for purchasing their own hard hats, hearing protection, safety glasses, and steel-toed

footwear; however, safety vests and fall protection equipment were provided by Respondent. (Tr.

300, 358, 395, 363–364, 367).

    Three of Respondent’s carpenters on this project were newly hired from the local Hopi

Indian population, as it was apparently required under the tribal contract. (Tr. 86, 361, 434, 459).

William Keller, Respondent’s Field Operations Manager, actually interviewed and hired the

three local Hopi carpenters, and acknowledged that he told CSHO Moon during the inspection

that that it was the employees’ responsibility to buy their own PPE. (Tr. 95, 467-468). He also

acknowledged that during his interview of local applicants, he asked whether they already

possessed basic required PPE, such as hard hats and safety glasses. (Tr. 435). While he testified

that “most of them had it,” the Court notes that he only hired three applicants who actually did

possess the required basic PPE. (Tr. 436, 439, 450). Mr. Keller further conceded that if a

carpenter showed up without a hard hat, he would require that employee to go purchase one. (Tr.

473).

    Despite Foreman French’s testimony, employee statements to CSHO Moon during the

inspection, and Respondent’s own written policy, Mr. Keller and Mr. Beckham both asserted that

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basic PPE ownership was not a precondition of employment. (Tr. 439–440, 489). For example,

Mr. Keller attempted to modify his statements to CSHO Moon during the inspection (and some

of his previous trial testimony discussed above) by explaining that what he meant to say was that

if individuals sought employment as a carpenter, but did not already have the typically required

PPE, it would cause him to question their skills and experience. (Tr. 461-462). Mr. Keller also

claimed at a different point during the trial that if an employee started work for Respondent but

did not have some of the required PPE, Respondent would provide certain items. (Tr. 443).

However, Beatrice Grassman, Respondent’s Business Manager who typically processes new

employees, conceded that it was “extremely rare” for Respondent to hire any employee who did

not already have basic PPE. (Tr. 478). Ms. Grassman testified that if an employee provided her

with a receipt for PPE, she would reimburse them. She acknowledged, however, that she never

discussed this purported policy with the newly hired Hopi carpenters on this project when

processing them in as new employees. (Tr. 478, 482–483).

   The relevant promulgation history for the cited regulation discusses the concept of

requiring PPE as a condition of employment:

          These provisions address the concern that employers not
          circumvent their obligations to pay for PPE by making employee
          ownership of the equipment a condition of employment or
          continuing employment or a condition for placement in a job.
          OSHA recognizes that in certain emergency situations, such as
          response to a natural disaster, where immediate action is required,
          it may be necessary for employers to hire or select employees
          already in possession of the appropriate PPE. As a general matter,
          however, employers must not engage in this practice. Taking PPE-
          ownership into consideration during hiring or selection
          circumvents the intent of the PPE standard and constitutes a
          violation of the standard.

72 Fed. Reg. 64342, 64358 (2007).

   There are exceptions to the basic rule requiring employers to pay for PPE. For example,



                                           8

an employer is not required to pay for: steel-toed footwear or prescription safety glasses,

provided they can be used away from the jobsite; alternative employee-requested metatarsal

guards; everyday clothing such as pants, shirts, work boots, and common weather protection

items; lost or intentionally damaged PPE which the employer previously provided; and PPE

already owned by an employee. See 29 C.F.R. §1926.95(d)(2)–(d)(6).

   However, Respondent’s arguments that it actually provided and/or reimbursed employees

for basic PPE, and that the employee-owned PPE exception absolves them of a violation, are

rejected for the following reasons: (1) Respondent’s written policy, in effect at the time, very

clearly stated that employees are responsible for supplying and maintaining their own PPE; (2)

Foreman French interpreted Respondent’s policy to require supervisors and employees to pay for

most of their own PPE (with the exception of safety vests and fall protection); (3) Foreman

French actually did purchase his own hard hats and safety glasses while working for Respondent;

(4) Foreman French and other employees on this project understood basic PPE ownership to be a

pre-requisite for employment with Respondent; (5) Carpenter Frank Ponce purchased the

specific PPE items on Respondent’s list before starting work for Respondent; (6) Mr. Keller’s

statements to CSHO Moon at the time of the inspection revealed a clear practice of requiring

employees to pay for their own PPE; (7) Mr. Keller acknowledged during trial, at least with

regard to hard hats, that if a new employee showed up without one, Mr. Keller would make him

go buy one; and (8) Mr. Keller admitted at trial that Respondent’s policy required employees to

replace PPE at their own expense. (Tr. 465-466). He did not differentiate between lost,

intentionally damaged, or simply worn out PPE, contrary to the language of 29 C.F.R. §

1926.96(d)(5).

    The preponderance of the evidence presented in this case established that Respondent




                                           9

required current employees, applicants for employment, and even Respondent’s own supervisors,

to purchase many of their own basic PPE items and pay for replacement of those PPE items. The

evidence most clearly established that practice with regard to hard hats and safety glasses [which

are not excepted items pursuant to 29 C.F.R. § 1926.95(d)(4)]. The Court finds that the cited

regulation applied and was violated.

   Complainant is not required to prove that an employer understood that a condition was

non-compliant, only that it was aware of the condition itself. Phoenix Roofing, Inc., 17 BNA

OSHC 1076 (No. 90-2148, 1995). There can be no doubt that Respondent was aware of its own

written policy that employees supply, maintain, and replace basic PPE at their own expense.

Accordingly, knowledge of the violative condition was established. Further, all five of

Respondent’s employees at this jobsite were exposed to the violative condition and practice.

   When asked about the classification of Citation 1, Item 1, CSHO Moon asserted that it

was a “serious” violation because failure to use appropriate PPE could result in physical harm or

death. (Tr. 113–114). While that may be true, there was no allegation in this case of any

employee failing to use appropriate PPE. As stated earlier in this decision, and confirmed by

CSHO Moon during the trial, this violation is based solely on Respondent’s failure to pay for

required PPE. The question of who paid for required PPE, as long as it was being used by

employees, is not reasonably likely to result in serious physical harm or death. Accordingly,

Citation 1, Item 1 will be MODIFIED to an other-than-serious violation and AFFIRMED.

    In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission 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. Gravity is the primary consideration and is determined

                                            10

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 Construction Co., 15 BNA

OSHC 2201 (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. Valdak Corp., 17 BNA OSHC 1135 (No.

93-0239, 1995); Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

        In calculating the proposed penalty for Citation 1, Item 1, CSHO Moon factored in the

low probability of an accident actually occurring as a result of this violation, the low severity of

any potential accident, and the small size of Respondent’s company. (Tr. 114–116). It is also

important to note that prior to this inspection, Respondent had never been inspected by OSHA,

and had no violation history. (Tr. 68, 168, 178–180). Based on the totality of the circumstances

discussed above, including the modification of this item to an other-than-serious violation, the

Court finds that a penalty of $500.00 is appropriate.

                                              Citation 1, Item 2

       Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows:2

                29 C.F.R. § 1926.602(c)(1)(vi): All vehicles in use were not checked
                at the beginning of each shift to assure that the following parts,
                equipment, and accessories were in safe operating condition and free
                of apparent damage which could cause failure while in use: service
                brakes, including trailer brake connections; parking system (hand
                brake); emergency stopping system (brakes); tires; horn; steering
                mechanism; coupling devices; seat belts; operating controls; and safety
                devices:

                (a) On or about April 30, 2012 and at times prior thereto, the JLG
                Gradall operating on loose sandy soil was not provided with tire treads
                that could provide gripping action and traction to prevent the
                equipment from slipping and sliding, exposing employees to struck-by
                and crushed-by hazards.

2
As amended at the beginning of trial. (Tr. 32).

                                                      11

The cited standard provides:

                 (vi) All industrial trucks in use shall meet the applicable requirements
                 of design, construction, stability, inspection, testing, maintenance, and
                 operation, as defined in American National Standards Institute B56.1-
                 1969, Safety Standards for Powered Industrial Trucks.

       This citation item is based on the condition of the two rear tires on the JLG Gradall

Rough Terrain Forklift being used by Respondent at this jobsite. (Tr. 73–75, 230; Stip. No. 11).

Both rear tires were essentially “bald” down the middle, with traction only on the outside

edges/corners of the tires. (Tr. 76, 80, 316; Ex. C-4, pp. 27, 31, 32). One of those tires also had a

three-inch partial hole/tear,3 in that some of the outer layers of tire rubber were missing. (Tr. 380;

Ex. C-4, pp. 31, 32). Although it was not being used at the time of the inspection, it was

undisputed that the forklift had been operated in that condition daily throughout Respondent’s

two months at the site. (Tr. 82–83, 91, 93, 306–307, 317, 328, 335–336, 347, 386). The forklift

was used to move various carpentry materials, such as stacks of 4x8 sheets of plywood and 2x4s,

including lifting them approximately twelve feet up onto the structure for employee use. (Tr.

125, 348–349). Employees helped load and unload materials from the forklift, but only when the

forklift was not in motion. (Tr. 350–352, 373, 379). It was also undisputed that the cited

standard (as amended) applied to the JLG Gradall Rough Terrain Forklift being used at this

jobsite. (Tr. 127, 355-356).

       CSHO Moon believed that the lack of tread on the two rear tires, and the 3-inch partial

tear on one of those tires, might cause the forklift to become unbalanced, slip, and lose its load.

(Tr. 118–119, 236–237). He also believed that the sandy soil and approximate three degree slope

of the jobsite increased this possibility. (Tr. 83, 320, 342, 380). However, this never occurred,

neither on the day of the inspection nor during Respondent’s use of the forklift in that condition

3
“Partial” because it was not a complete hole through the tire to the core. (Tr. 430).

                                                         12

during the previous two months on this project. (Tr. 308, 386, 398, 429). Complainant did not

introduce any scientific or other technical evidence to support CSHO Moon’s belief. Rather, at

one point during the trial, CSHO Moon relied on an analogy comparing the forklift to an

ordinary automobile. (Tr. 226–231). However, Respondent argued, Complainant conceded, and

this Court agrees, that the operation and design of a JLG Gradall Rough Terrain Forklift is very

different from an ordinary automobile. (Tr. 230–231).

   At trial, CSHO Moon did not know whether the forklift was front-wheel driven, rear-

wheel driven, or four-wheel-driven. (Tr. 313). Respondent, however, explained without

contradiction that the forklift was front-wheel-driven, with a four-wheel-drive option (although

that option was never necessary on this particular project). (Tr. 382; Ex. C-4, p. 19). Therefore,

the forklift and load weights were always centered on the front tires, while the rear tires (the ones

at issue) rotated left or right for steering purposes only. (Tr. 383, 401, 405, 408, 430). The

forklift also typically traveled only 3–5 miles per hour and could be mechanically leveled, to

adjust for travel over any sloping on a jobsite. (Tr. 390, 402, 425).

   The specific regulation cited requires industrial trucks such as this one to meet the

“design, construction, stability, inspection, testing, maintenance, and operation” requirements of

ANSI B56.1-1969. At trial, CSHO Moon conceded that there is no specific language in the cited

regulation, or ANSI B56.1-1969, which specifies a minimally acceptable tread depth for forklift

tires or a prohibition on wear such as the 3-inch partial hole on the forklift’s right rear tire. (Tr.

242–243, 252, 309–310, 431; Ex. C-11). Despite a lack of any specific language prohibiting the

condition of these rear tires in the cited regulation or the relevant ANSI standard, CSHO Moon

still believed the tires should have been replaced. Complainant argues that the language of

Section 606(A) of the referenced ANSI standard can be construed to prohibit the condition of the

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tires:

              606(A): Operator Care of the Truck. Give special consideration to
              the proper functioning of tires, horns, lights, battery, controller, lift
              system (including load engaging means, chains, cable, and limit
              switches”, brakes and steering mechanism. If at any time a
              powered industrial truck is found to be in need of repair, defective,
              or in any way unsafe, the matter shall be reported immediately to
              the designated authority, and the truck shall be taken out of service
              until it has been restored to safe operating conditions.

(Ex. C-11, p. 209).

     The record established that the tires at issue in this case were “foam-filled.” (Tr. 217,

374). Instead of air, Respondent had the forklift tires filled with polyurethane and resin, which

dries to “almost bowling ball” hardness, and “cannot go flat.” (Tr. 218, 387, 421). The foam

filling in these tires is so durable, that when it becomes necessary to replace one, the tire has to

be cut off in sections and peeled away from the metal rim.4 (Tr. 422). CSHO Moon testified that

the tires being foam-filled made no difference to him in terms of the alleged hazard. (Tr. 319).

     It was undisputed that Foreman French inspected this forklift every day, including the

day of OSHA’s inspection. (Tr. 122–124, 329–330; Ex. R-14). His checklist included a category

for tire “damage and wear affecting the performance of the machine,” which Foreman French

testified he did, in fact, check. (Tr. 331; Ex. R-14). Foreman French did not report the rear tires

on his inspection sheets because they did not affect the safe performance of the forklift, and he

never considered their condition to be hazardous. (Tr. 344, 384). Mr. Keller and Mr. Beckham

supported Foreman French’s on-site conclusion that the condition of the rear tires presented no

hazard—primarily due to the fact that they were foam-filled. (Tr. 430, 490).

     Based on the record in this case, the Court finds that Complainant failed to establish, by a

4
Respondent also argued in its Post-Trial Brief that a hole is intentionally drilled into every foam-filled tire to allow
air pressure to escape as the foam enters the tire. However, this fact was not introduced into the record and will not
be considered.

                                                       14

preponderance of the evidence, that the lack of tread down the middle of the rear tires, or the

partial hole/tear on the right rear tire, constituted conditions “in need of repair, defective, or in

any way unsafe.” The following factors from this record are determinative: (1) No language in

the regulation or referenced ANSI standard identifying a minimally acceptable tire tread depth;

(2) No language in the regulation or referenced ANSI standard prohibiting a partial hole/tear in

the outer rubber layer of a foam-filled tire; (3) No scientific or other technical information

presented by Complainant (other than CSHO Moon’s lay opinion) concerning how, or if, the lack

of tread or partial tear on the right rear tire created an unsafe condition, especially considering

the foam-filled nature of the tires; (4) the fact that the rear tires did not primarily support the

weight of the forklift or its load, but rather were primarily used for steering; and (5) a lack of

evidence in the record of any slipping, sliding, or other loss of traction or balance occurring as a

result of the condition of the tires. Since Complainant failed to meet its burden of establishing a

violation of the cited regulation, Citation 1, Item 2 will be VACATED.

                                          ORDER

    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 $500.00 is ASSESSED; and

2. Citation 1, Item 2 is VACATED.

SO ORDERED.

                                  /s/ Brian A. Duncan

Date: August 12, 2013 Judge Brian A. Duncan
Denver, Colorado U.S. Occupational Safety and Health Review Commission

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