Schmitt Tree Experts

Plain-English summary

Schmitt Tree Experts did not contest an earlier citation alleging that required monthly crane-inspection certification records were unavailable. OSHA later issued a failure-to-abate notification after the company still could not produce records of subsequent inspections. The judge found that the original citation described the missing date, signature, and crane-identifier information clearly enough to tell the company what had to be corrected, even though it referenced the wrong subsection. The company did not prove that OSHA promised to provide an official form, and no particular form was required to make the three-data-point certification record. The failure-to-abate item was affirmed under the corrected recordkeeping subsection. The proposed $36,000 additional penalty was reduced to $9,180 because it needed a reasonable relationship to the original $1,020 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.180(d)(6)
• Outcome: Failure-to-abate item affirmed; additional penalty reduced to $9,180.
• Key point: An employer could create its own crane-inspection certification record and could not delay abatement while waiting for an OSHA form that the standard did not require.

Full text (OSHRC public release)

                                          United States of America
                       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                     1120 20th Street, N.W., Ninth Floor
                                        Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 13-0696
SCHMITT TREE EXPERTS,
Respondent.

Appearances: Wayne P. Marta, Esquire
U.S. Department of Labor, Office of the Solicitor, Cleveland, Ohio
For the Secretary

                      William W. Johnston, Esquire
                      Columbus, Ohio
                      For the Respondent

Before: William S. Coleman
Administrative Law Judge

                                  DECISION AND ORDER

      This matter involves an employer’s alleged failure to correct a violation of the standard in

29 C.F.R. § 1910.180(d) that requires an employer to make monthly “certification records” of the
inspection of certain mobile cranes and to keep such records “readily available.”
In August 2012, the Occupational Safety and Health Administration (OSHA) cited the
Respondent, Schmitt Tree Experts (Schmitt Tree), for violating 29 C.F.R. § 1910.180(d)(2).
Schmitt Tree did not contest this citation, and it became a final order by operation of law under
section 10(a) of the Occupational Safety and Health Act (Act), 29 U.S.C. § 659(a). On March
22, 2013, after having determined that Schmitt Tree had not corrected this violation, OSHA
issued to Schmitt Tree a Notification of Failure to Abate (NFTA) the violation, and proposed an
additional penalty of $36,000.
Schmitt Tree timely filed a notice of intention to contest the NFTA, and OSHA duly
forwarded the contest to the Occupational Safety and Health Review Commission (Commission).
The undersigned conducted a hearing in Columbus, Ohio, on December 18, 2013. 1 The filing of
post-hearing briefs was completed on March 5, 2014.
The issues for decision are:
1. Did the original citation describe the recordkeeping violation with sufficient
particularity to inform Schmitt Tree what it was required to do to correct the violative
recordkeeping condition, even though the original citation did not expressly reference the
recordkeeping standard of paragraph 1910.180(d)(6)?
2. Did Schmitt Tree fail to correct the violative recordkeeping condition?
3. Is the Secretary equitably estopped from issuing the NFTA on the asserted ground that
OSHA officials falsely informed Schmitt Tree that OSHA would supply Schmitt Tree with a
form that it could use to correct the violation?
4. Is the proposed additional penalty of $36,000 appropriate?
As discussed below, the resolution of these issues results in the affirmance of the NFTA
and an assessed penalty of $9180.

                        Jurisdiction and Coverage under the Act
   The Commission has jurisdiction under section 10(c) of the Act, 29 U.S.C. § 659(c).
   Schmitt Tree is an Ohio corporation that was formed in February 2010. (Ex. C-1).

Schmitt Tree employs employees and is engaged in a tree care business that affects interstate
commerce. (Schmitt Depo. pp. 10-15, 22, 23). Thus, at all times relevant to these proceedings,
Schmitt Tree was an “employer” as defined by section 3(5) of the Act, 29 U.S.C. § 652(5), and
was subject to the requirements that the Act imposes upon employers.

                                        Background
   On May 18, 2012, OSHA conducted an inspection of Schmitt Tree’s place of business in

Columbus, Ohio. As a result of that inspection, on August 28, 2012, OSHA issued to Schmitt

   1
      Schmitt Tree is a corporation and appeared at the hearing only through its retained

attorney; no other official or representative of Schmitt Tree was present at the hearing. See
Commission Rule 22(a), 29 C.F.R. § 2200.22 (providing that a party “may appear in person,
through an attorney, or through another representative who is not an attorney”); cf. Commission
Rule 64(a), 29 C.F.R. § 2200.64(a) (providing that “[t]he failure of a party to appear at a hearing
may result in a decision against that party”). In the discovery phase of the instant matter, the
Secretary had deposed Mr. Tobias Schmitt, who is an owner and officer of Schmitt Tree.
(Schmitt Depo. pp. 10-11). The deposition was received in evidence without objection and
without limitation. (Tr. pp. 10, 71-72; Ex. C-8).
2
Tree a citation and notification of penalty (original citation) that alleged Schmitt Tree had
violated 29 C.F.R. § 1910.180(d)(2), which pertains to the inspection of truck cranes (and certain
other mobile cranes) that are in regular service.
Paragraph 1910.180(d)(2) by itself does not prescribe any employer duties or
responsibilities, but rather is definitional in nature. It establishes two types of “regular
inspections” of certain mobile cranes -- “frequent” and “periodic” – based upon the intervals at
which the inspections should be performed. Paragraph 1910.180(d)(2) provides:

      (2) Regular inspection. Inspection procedure for cranes in regular service is
   divided into two general classifications based upon the intervals at which
   inspection should be performed. The intervals in turn are dependent upon the
   nature of the critical components of the crane and the degree of their exposure to
   wear, deterioration, or malfunction. The two general classifications are herein
   designated as "frequent" and "periodic", with respective intervals between
   inspections as defined below:
       (i) Frequent inspection: Daily to monthly intervals.
       (ii) Periodic inspection: 1- to 12- month intervals, or as specifically
   recommended by the manufacturer.

The original citation expressly referenced subparagraph (i), which describes the intervals for
“frequent” regular inspections.
Schmitt Tree did not contest the original citation, so in September 2012 it became a final
order of the Commission by operation of law under section 10(a) of the Act, 29 U.S.C. § 659(a).
The original citation required Schmitt Tree to correct the violation by September 12, 2012. 2
The original citation’s description of the alleged violation of paragraph 1910.180(d)(2)
stated as follows: “At the workplace . . . it was found that inspection records which include the
date of inspection, the signature of the person(s) who performed the inspection and the serial
number of the crane could not be produced by the employer.” (Ex. C-2).
The original citation did not allege that Schmitt Tree had failed to perform the required

   2
      In addition to a violation of paragraph 1910.180(d)(2), the original citation alleged two

other violations: one violation of the “general duty clause” of the Act, 29 U.S.C. § 654(a)(1),
pertaining to the condition of another of Schmitt Tree’s truck cranes; and one violation of 29
C.F.R. § 1904.29(b)(3) for failing to record a recordable injury on the OSHA 300 Log. (Ex. C-
2). OSHA determined that Schmitt Tree had timely abated these other two violations. (Ex. 2,
pp. 7-8; Tr. 26-27; Schmitt Depo. 27-29, 36). Schmitt Tree did not contest any of the original
three citation items, and it paid the total proposed penalties of $3060. (Exhibit C-7, p. 2; Tr. 62-
63; Schmitt Depo. p. 30).
3
“frequent” regular inspections – that requirement is imposed by paragraph 1910.180(d)(3). 3
Rather, the original citation alleged that the required documentation of such frequent regular
inspections “could not be produced” by Schmitt Tree. This is a requirement imposed by
paragraph 1910.180(d)(6), which requires that “certification records” of inspections “be kept
readily available.” Paragraph 1910.180(d)(6) provides:
(6) Inspection records. Certification records which include the
date of inspection, the signature of the person who performed the
inspection and the serial number, or other identifier, of the crane
which was inspected shall be made monthly on critical items in use
such as brakes, crane hooks, and ropes. This certification record
shall be kept readily available.
The “certification record” requirement in current paragraph 1910.180(d)(6) was adopted
in 1986. The summary for the preamble to the final rule implementing the “certification record”
requirement stated the rule was intended to minimize the paperwork burdens imposed on
employers:
[OSHA] hereby revises certain recordkeeping requirements to
minimize the paperwork burdens imposed on employers. This final
rule eliminates certain requirements under which an employer must
prepare and maintain detailed records. The revised provisions
require, instead, that the employer simply prepare a certification
record at the time the required work is done, which includes the
date the … inspection … was performed; the signature of the person
who performed the work; and the identity of the equipment or
machinery that was inspected . . . .
3
Paragraph 1910.180(d)(3) provides as follows:
(3) Frequent inspection. Items such as the following shall be inspected for defects at
intervals as defined in paragraph (d)(2)(i) of this section or as specifically indicated
including observation during operation for any defects which might appear between
regular inspections. Any deficiencies such as listed shall be carefully examined and
determination made as to whether they constitute a safety hazard:
(i) All control mechanisms for maladjustment interfering with proper operation:
Daily.
(ii) All control mechanisms for excessive wear of components and contamination by
lubricants or other foreign matter.
(iii) All safety devices for malfunction.
(iv) Deterioration or leakage in air or hydraulic systems: Daily.
(v) Crane hooks with deformations or cracks. For hooks with cracks or having more
than 15 percent in excess of normal throat opening or more than 10 deg. twist from the
plane of the unbent hook.
(vi) Rope reeving for noncompliance with manufacturer's recommendations.
(vii) Electrical apparatus for malfunctioning, signs of excessive deterioration, dirt, and
moisture accumulation.

                                                 4

Recordkeeping Requirements for Tests, Inspections, and Maintenance Checks, 51 Fed. Reg.
34552 (Sept. 29, 1986) (to be codified at 29 C.F.R. § 1910.180(d)(6)). The preamble notes
“OSHA will use the term ‘certification record’ to distinguish this new form of documentation
from the detailed records previously required.” Id. at 34555. Because there are three items of
information that must be contained in a certification record, the preamble describes it as a
“contemporaneous ‘three data point’ certification.” Id. at 34554.
It is readily apparent that the drafter of the original citation employed the language of
paragraph 1910.180(d)(6) to describe the violation, even though the drafter expressly referenced
paragraph 1910.180(d)(2). The original citation’s description of the violation used language that
is verbatim from paragraph 1910.180(d)(6). Thus, even though the original citation did not
expressly refer to paragraph 1910.180(d)(6), its language explicitly alleged a “recordkeeping”
violation.
On February 28, 2013, an OSHA compliance officer (CO) re-inspected Schmitt Tree’s
place of business because Schmitt Tree had not submitted documentation showing that it had
corrected the recordkeeping violation. The CO determined that Schmitt Tree continued to be
unable to produce documentation of required truck crane inspections occurring after the issuance
of the original citation. As a result, on March 22, 2013, OSHA issued to Schmitt Tree the NFTA
alleging that Schmitt Tree had not abated the recordkeeping violation, and proposing an
additional penalty of $36,000. The NFTA repeated verbatim the description of the alleged
violation set forth in the original citation, and thus the NFTA did not contain an express
reference to paragraph 1910.180(d)(6), which creates and delimits the recordkeeping
requirement.
Mr. Tobias Schmitt, who is an owner and officer of Schmitt Tree, acknowledged in his
deposition testimony4 that during the course of the original OSHA inspection in May 2012, he
came to understand that Schmitt Tree was required to create and to keep documentation of
required truck crane inspections. (Schmitt Depo. 32-34). Mr. Schmitt also testified that Schmitt
Tree did not begin to create and to keep any crane inspection records until after the NFTA was
issued on March 22, 2013. (Id. at 58-63). Mr. Schmitt testified that Schmitt Tree did not create
inspection records between the issuance of the original citation in August 2012 and the issuance
of the NFTA in March 2013 because he did not know what form to use, and that he believed that

   4
       Mr. Schmitt did not testify at the hearing. See note 1, supra.
                                               5

OSHA was going to provide Schmitt Tree with an official or approved form that Schmitt Tree
could use to correct the recordkeeping violation. (Id. at 34).
Only one of the two CO’s who conducted the original inspection in May 2012 testified at
the hearing. This CO testified that he did not recall Tobias Schmitt or any other person
associated with Schmitt Tree ask either himself or the other inspecting CO to provide a form that
would meet the crane inspection recordkeeping requirement. (Tr. 46, 49-50).

                                        Discussion
   At the outset of the hearing, the undersigned noted that the language used to describe the

violative condition in both the original citation and the NFTA appeared to be derived from
paragraph 1910.180(d)(6), and not from the actually referenced paragraph 1910.180(d)(2). The
undersigned asked counsel for the Secretary whether the Secretary had considered seeking to
amend the NFTA to refer to paragraph 1910.180(d)(6) rather than paragraph 1910.180(d)(2).
Counsel for the Secretary indicated that he had recognized this incongruence, but that he was
uncertain whether amendment was possible since the original citation had become a final order
of the Commission by operation of law under section 10(a) of the Act. (Tr. 15). Nevertheless,
counsel for the Secretary indicated that the Secretary would concur in amending the NFTA
accordingly. (Tr. 15-16). Counsel for Schmitt Tree stated he did not object to such an
amendment. (Tr. 16). Consequently, with the expressed assent of both parties, the undersigned
determined that the standard referenced in the NFTA would be amended in the alternative to
paragraph 1910.180(d)(6). 5 (Tr. 16).

   5
      In making this determination at the hearing, the undersigned did not identify whether

the amendment extended to the original citation as well as to the NFTA. The undersigned
hereby clarifies the record and states affirmatively that only the NFTA was amended in the
alternative, pursuant to Rule 15, Fed. R. Civ. P., to allege an uncorrected violation of paragraph
1910.180(d)(6).
It is not necessary to amend the original citation in order to affirm the NFTA, and thus it
is likewise unnecessary to determine whether the Commission has jurisdiction to amend the
section 10(a) final order that provides the predicate violation for the NFTA. Nevertheless, a
discussion of this jurisdictional question may be useful if any reviewing authority were to
determine that amendment of the section 10(a) final order would be necessary in order to affirm
the NFTA.
The decision of a Commission judge in Arsynco, Inc., No. 78-1339, 1980 WL 10543
(O.S.H.R.C.A.L.J., Dec. 8, 1980) is instructive on the jurisdictional question. There, a final
order of the Commission had been entered under section 12(j) of the Act as the result of a
stipulated settlement following a contest of the original citation. However, due to an apparent
6
 The abatement of a recordkeeping violation can have both retrospective and prospective
dimensions. Hercules, Inc., 20 BNA OSHC 2097, 2104 (No. 95-1483, 2005). Prospectively, an
employer must rectify its recordkeeping so that going forward the records are properly created
and maintained. Id. Here, the Secretary contends only that Schmitt Tree failed to correct its
recordkeeping prospectively; the Secretary does not contend that Schmitt Tree failed to correct

typographic error in the drafting of the original citation, the final order provided that the
employer had violated a standard that did not actually exist in the Code of Federal Regulations.
Later, the Secretary issued an NFTA that was predicated on a violation that had been established
by that final order. In that NFTA proceeding, the ALJ granted the Secretary’s Rule 60(a), Fed.
R. Civ. P. Rule 60(a), motion to correct a clerical error in the final order so that the order would
reference the true standard that had been originally violated. (Rule 60(a) provides in part that a
“court may correct a clerical mistake or a mistake arising from oversight or omission whenever
one is found in a judgment, order, or other part of the record,” and that a court may do so on its
own motion with or without notice.)
The situation here is different from that in Arsynco in two potentially significant ways.
First, here the final order of the Commission arose by operation of section 10(a) of the Act, not
section 12(j). While the Commission has ruled that it has jurisdiction to grant relief from a
section 10(a) final order under the standards of Rule 60(b), Fed. R. Civ. P., see Branciforte
Builders, Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981), the Commission has not similarly ruled
that it has jurisdiction to correct a mistake in a section 10(a) final order under the standards of
Rule 60(a), Fed. R. Civ. P.
Second, here the erroneous reference to paragraph 1910.180(d)(2) in the original citation
appears to be more than a mere “clerical mistake” as in Arsynco, although the error might
conceivably have been the result of “a mistake arising from oversight or omission” within the
meaning of Rule 60(a). See 12 Moore’s Federal Practice § 60.11[2][b] (3d ed. 2013).
As previously stated, the NFTA here may be affirmed without amending the final order,
so it is not necessary to determine (1) whether the Commission has jurisdiction to correct the
section 10(a) final order, or (2) whether the mistake that is present in the final order here is the
kind of mistake that is correctable under Fed. R. Civ. P. Rule 60(a). The undersigned notes
nevertheless that strong policy considerations weigh in favor of concluding that when the
Commission has jurisdiction over a challenge to an NFTA that is predicated upon a section 10(a)
final order, the Commission should also have jurisdiction to correct a mistake in that final order
pursuant to Fed. R. Civ. P. Rule 60(a). See Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d
1257, 1264 (D.C. Cir. 1973) (observing that “citations under the 1970 Act are drafted by non-
legal personnel, acting with necessary dispatch,” and that “[e]nforcement of the Act would be
crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his
inspectors”); Safeway Store No. 914, 16 BNA OSHC 1504, 1516-17 (No. 91-373, 1993) (holding
that where the citation referenced a standard that required an employer to “have” certain
documentation, but the gravamen of the Secretary’s case focused on a different standard that
required the employer to keep the document at a certain location, amending the pleadings to
reflect the actual standard allegedly violated did “not alter the factual allegations set forth in the
citation”).
7
the violation by failing to create and maintain certification records retrospective to the issuance
of the original citation. 6
To establish that Schmitt Tree failed to abate the condition cited in the original citation,
the Secretary must prove that (1) the original citation and finding of a violation became a final
order of the Commission, and (2) the condition or hazard found upon re-inspection is the
identical one for which the employer was originally cited. 7 Hercules, Inc., 20 BNA OSHC at
2098.
An employer may also challenge an NFTA by claiming that the description of the
original violation lacked sufficient particularity to inform the employer what action was required
to correct the violation. B.W. Harrison Lumber Co., 4 BNA OSHC 1091, 1092 (No. 2200,
1976), aff’d, 569 F.2d 1303 (5th Cir. 1978). This “particularity” requirement is consistent with
the constitutional mandates of due process, and is embodied in section 9(a) of the Act, which
provides that a citation “shall describe with particularity the nature of the violation, including a
reference to the provision of the Act, standard, rule, regulation, or order alleged to have been
violated.” See Alden Leeds, Inc. v. OSHRC, 298 F.3d 256, 261 (3d Cir. 2002). Section 9(a)’s
requirement that a citation include a reference to the standard violated is an aspect of its
particularity requirement.
“The test of particularity is whether the citation provided fair notice of the alleged
violation.” B.W. Harrison Lumber Co., 4 BNA OSHC at 1093. To provide fair notice, a citation
“must fairly characterize the violative condition so that the citation is adequate both to inform the
6
It is questionable whether retrospective abatement (by creating and maintaining a non-
contemporaneous certification record) is even theoretically possible, since the standard requires
the monthly “certification record” to be created contemporaneously with the inspection certified.
Recordkeeping Requirements for Tests, Inspections, and Maintenance Checks, 51 Fed. Reg.
34552, supra. Moreover, retrospective creation of accurate records of past activities may at
times be impossible as a practical matter. See Hercules, 20 BNA OSHC at 2105 (employer not
required to abate record certification violation retrospectively where doing so “was no longer
practicable, if not impossible”).
7
An employer may rebut the Secretary’s prima facie case (1) “by a showing of actual
abatement of the hazardous condition by prevention of employee exposure or correction of the
physical condition,” and also (2) “by showing that the condition for which respondent was
originally cited was in fact non-violative of the Act where the original citation has become a final
order of the Commission by operation of law.” York Metal Finishing Co., 1 BNA OSHC 1655,
1656 (No. 245, 1974). The cited employer bears the burden to establish these affirmative
defenses. Id. Schmitt Tree did not interpose or seek to establish either of these affirmative
defenses.
8
employer of what must be changed and to allow the Commission, in a subsequent failure-to-
correct action, to determine whether the condition was changed.” Hercules, Inc., 20 BNA OSHC
at 2098-99 (internal quotes omitted), quoting Alden Leeds, Inc., 298 F. 3d at 261.
The Secretary has carried his burden to establish the two elements of his prima facie case.
First, it is undisputed that Schmitt Tree did not contest the original citation and that it became a
final order of the Commission in September 2012 by operation of law under section 10(a) of the
Act.
Second, the original citation required Schmitt Tree to abate the violation by September
12, 2012. (Ex. C-2, p. 7). The uncontroverted evidence establishes that Schmitt Tree did not
create any monthly certification record of inspections or any other record of required inspections
(and thus it had no such records to keep “readily available” as required by paragraph
1910.180(d)(6)) between September 12, 2012 and the issuance of the NFTA on March 22, 2013,
a span of over six months. The evidence establishes that the condition that was found on the re-
inspection was identical to the condition that was described in the original citation.
It is not fatal to the NFTA that the original citation referenced paragraph 1910.180(d)(2)
and not paragraph 1910.180(d)(6). The description of the violation charged in the original
citation, including the erroneous reference to paragraph 1910.180(d)(2), was sufficiently
particular to inform Schmitt Tree of what it was required to do to correct the violation, which
was to create and maintain documentation of regular inspections of its truck cranes in regular
service. Cf. Diamond Int’l Corp., No. 3460, 1975 WL 21862 at *7 (O.S.H.R.C.A.L.J. Feb. 18,
1975) aff’d in relevant part, sub nom. Noblecraft Indus. v. Sec’y of Labor, 614 F.2d 199, 206
(9th Cir. 1980) (finding that a citation that did not reference the specific paragraph of 1910.219
alleged to have been violated nevertheless provided adequate notice of the alleged violation and
was sufficiently specific to meet the particularity requirement of section 9(a) of the Act). Even
though the original citation did not include an express reference to paragraph 1910.180(d)(6), it
employed the language of that paragraph, and expressly described the “three data points” that the
paragraph requires to be included in a certification record.
Tobias Schmitt confirmed in his deposition testimony that during the course of the initial
OSHA inspection in May 2012, he came to understand that Schmitt Tree was required to create
and maintain documentation of regular inspections of its truck cranes. (Schmitt Depo. 33-34).
Cf. B.W. Harrison Lumber Co., 4 BNA OSHC at 1093 (stating that in determining whether an

                                              9

original citation is sufficiently particular, “consideration may be given to factors external to the
citation, such as the nature of the alleged violation, the circumstances of the inspection, and the
employer’s knowledge of his own business”); Diamond Int’l Corp. at *7 (observing that the
“record clearly indicates that Respondent did receive adequate notice through the reference
given” and “does not contain any indication of confusion on Respondent’s part with regard to the
equipment involved” or the corrective action required).
The CO who testified at the hearing stated that OSHA would have deemed the original
violation to have been corrected if Schmitt Tree had begun to make and to keep readily available
the detailed records of inspections that it began to make after the NFTA was issued in March
2013. 8 (Tr. 44-45; Ex. C-4). The fact that Schmitt Tree ultimately began to create and maintain
documentation that met the certification record requirement provides further support for the
conclusion that the description of the violative condition in the original citation was sufficiently
particular.
The situation here is distinguishable from that in Correa, 4 BNA OSHC 1081 (No. 2272,
1976). There, a citation had become a final order of the Commission by operation of section
10(a) of the Act. In a subsequent NFTA proceeding predicated on that final order, the
Commission upheld the employer’s affirmative defense that the original condition was non-
violative because the original citation had alleged the violation of a standard that was not
applicable to the piece of machinery involved. Here, Schmitt Tree has not raised this as an
affirmative defense. Moreover, there is no dispute that paragraph 1910.180(d)(2), as referenced
in the original citation, does apply to the machinery involved (Schmitt Tree’s truck crane), as
does § 1910.180 as a whole.
Tobias Schmitt testified that he believed the original citation should have contained an
explicit reference to an approved or official OSHA form that Schmitt Tree could use to meet the
crane inspection recordkeeping requirement (in the same way that another of the other original
citation items explicitly referred to an official form -- the OSHA 300 Log). (Schmitt Depo. 48).

    8
     The CO’s view that an employer could continue to use detailed inspection records to

comply with the “certification record” requirement of paragraph 1910.180(d)(6) is consistent
with the preamble to the final rule that implemented that requirement. The preamble states:
“[U]nder the final rule, if employers elect to continue to maintain detailed records for their own
purposes, OSHA would be satisfied if the three data elements were included in the detailed
records.” Recordkeeping Requirements for Tests, Inspections, and Maintenance Checks, supra,
51 Fed. Reg. at 34,554.
10
To the extent that this stated belief could be regarded as an assertion that the original citation was
not sufficiently particular to inform Schmitt Tree what it needed to do to correct the violation,
such an argument is rejected. Section 9(a) of the Act does not require that a citation state with
particularity how the employer must abate a violative condition. Del Monte Corp., 4 BNA
OSHC 2035, 2037 (No. 11865, 1977). Moreover, as the CO testified, OSHA has not prescribed
or approved any particular form to meet the recordkeeping requirement for inspections of truck
cranes, so the original citation could not have referenced any such form.
Schmitt Tree argues that OSHA officials misled it into believing that OSHA would
provide Schmitt Tree with an official or approved form to correct the recordkeeping violation.
This argument shall be treated as raising the affirmative defense of equitable estoppel. 9
“[I]t is well settled that the Government may not be estopped on the same terms as any
other litigant.” Heckler v. Cmty. Health Serv. of Crawford Cnty., Inc., 467 U.S. 51, 60 (1984).
“In addition to the traditional elements of an estoppel claim, a party must show affirmative
misconduct before estoppel can be applied against the government.” Fluor Daniel, 19 BNA
OSHC 1529, 1533 (No. 96-1729, 2001) (consolidated). “Estoppel additionally requires a
showing that the government's wrongful act will cause serious injustice, and the public's interest
will not suffer undue damage if estoppel is imposed.” Id.
Tobias Schmitt testified during his deposition that during the original OSHA inspection
in May 2012, one of the two OSHA CO’s present (neither of whom he was able to identify by
name) told him that OSHA would provide a form that would satisfy the recordkeeping
requirement, and that thereafter OSHA failed to provide the promised form. (Schmitt Depo. 34,
47-49). He testified further that he believed that other representatives of Schmitt Tree had later
made similar requests of OSHA. However, it is apparent from this testimony that Mr. Schmitt’s
belief that such subsequent requests had been made was grounded in speculation and
supposition, not on firsthand knowledge. (Schmitt Depo. 74-83).

   9
     The estoppel argument will be addressed even though Schmitt Tree did not raise any

affirmative defenses in its answer to the complaint. Cf. Commission Rule 34(b)(4), 29 C.F.R.
§ 2200.34(b)(4) (requiring generally that affirmative defenses be raised in the answer).
However, this issue was tried at the hearing with the consent of the parties, and thus the answer
is deemed amended to interpose equitable estoppel as an affirmative defense. See McWilliams
Forge Co., Inc., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (noting that a post-hearing
amendment of pleadings is proper where the parties have tried the unpleaded issue and they
consented to do so).
11
 The CO who testified at the hearing had no recollection of any person associated with
Schmitt Tree asking either him or the other CO involved in the original inspection to provide an
inspection form. He testified further that if such a request had been made, he probably would
have suggested other potential sources for locating a form. (Tr. 46, 49-50).
Schmitt Tree has not carried its burden to prove the alleged facts that support its estoppel
theory of defense. The evidence is insufficiently weighty to support a finding that OSHA
officials told anyone at Schmitt Tree that OSHA would provide a form that Schmitt Tree could
use to correct the recordkeeping violation. Tobias Schmitt’s testimony, available only in the
form of a “cold” deposition transcript, is outweighed by the persuasive controverting testimony
of one of the two CO’s who conducted the original inspection. Moreover, even if Tobias
Schmitt’s deposition testimony were deemed more reliable than the CO’s testimony on this issue,
the circumstances that he described are insufficient to establish a prima facie defense of equitable
estoppel.

                                   Penalty Assessment
   Section 17(d) of the Act, 29 U.S.C. § 666(d), provides that an employer who fails to

correct a violation for which a citation has issued “may be assessed a civil penalty of not more
than $7,000 for each day during which such failure or violation continues.”
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, 1138 (No. 93-0239, 1995). In assessing a civil penalty
under the Act, “the achievement of a just result in each case is the standard by which [the
Commission’s] deliberations must be guided.” Nacirema Operating Co., Inc., 1 BNA OSHC
1001, 1003 (No. 4, 1972). Section 17(j) of the Act prescribes four statutory criteria that must be
considered in assessing any civil penalty under the Act, including a penalty for failure to correct
a violation. See Empire Art Prods. Co., Inc., 2 BNA OSHC 1230 (No. 640, 1974). Those
criteria are: (1) the size of the employer's business, (1) the gravity of the violation, (3) the good
faith of the employer, and (4) the history of previous violations.
Further, a “penalty assessed for failure to correct an admitted violation must bear a
reasonable relationship to the amount of the penalty which was assessed for the existence of the
violation in the first place.” Id., 2 BNA OSHC at 1232.

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The penalty assessed (and the penalty that Schmitt Tree paid) for the original
recordkeeping violation was $1020. (Ex. C-2). The additional penalty that the Secretary
proposed in the NFTA was $36,000. According to the CO who testified at the hearing, while
OSHA’s internal protocol would permit a maximum proposed additional penalty of $210,000 for
the failure to correct the violation, the OSHA area director had concluded that this amount
“would be excessive for this” and arrived instead at the $36,000 figure proposed. (Tr. 40-41).
There was no other evidence presented that directly tied the $36,000 proposed penalty to the
statutory criteria of section 17(j).
Schmitt Tree is a relatively small employer, employing between five and 25 employees at
any given time. (Schmitt Depo. 23). The Secretary is presumed to have previously accounted
for Schmitt Tree’s size in assessing the original penalty of $1020, in accordance with his
ordinary procedures. See OSHA Instruction CPL-02-00-148, Field Operations Manual Chap. 6
(Nov. 9, 2009); Jones, 11 BNA OSHC 1529, 1532 (No. 77-3676, 1983) (applying presumption
of regularity of administrative action). Since, under Empire Art, the original penalty provides a
reference point for determining the additional penalty for the failure to correct the violation, no
further adjustment is provided for this factor.
As far as the record shows, the only previous violations for which Schmitt Tree has been
cited were set forth in the original citation, which established three violations, two of which were
timely abated. Since the sole uncorrected violation serves as the predicate for the NFTA, no
adjustment is made for prior history.
No adjustment is made for “good faith.” Schmitt Tree knew that it had not corrected the
violation, even though this failure appears to have been based at least in part on its erroneous and
objectively unreasonable belief that OSHA would be supplying a form to correct the
recordkeeping violation. Cf. Monroe Drywall Constr., Inc., 24 BNA OSHC 1209, 1211 (No. 12-
0379, 2013) (noting the Commission has “never accorded any credit for an employer's subjective
belief that the OSH Act did not apply when evaluating good faith for penalty purposes”).
The gravity of the violation is the most important of the four section 17(j) factors.
Determination of the gravity of a particular violation requires a consideration of the number of
exposed employees, the precautions taken to protect employees, the duration of employee
exposure, and the probability that an accident will occur. See J.A. Jones Constr. Co., 15 BNA
OSHC 2201, 2214 (No. 87-2059, 1993).

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OSHA has described the purpose of the “certification record” required by paragraph
1910.180(d)(6) in the following terms:
The certification record provides employers, workers, and OSHA compliance
officers with assurance that critical items on cranes have been inspected, and
that the equipment is in good operating condition so that the crane and rope
will not fail during material handling. These records also enable OSHA to
determine that an employer is complying with the Standard.
Crawler, Locomotive, and Truck Cranes Standard; Extension of the Office of Management and
Budget’s (OMB) Approval of Information Collection (Paperwork) Requirements, 78 Fed. Reg.
33860, 33861 (June 5, 2013).
The continued failure of Schmitt Tree to make (and then to keep readily available) a
monthly certification record required by paragraph 1910.180(d)(6) heightened the risk that the
required inspections of critical items were not properly conducted, and consequently heightened
the risk of serious injury or death to its employees from potential equipment failure. This failure
to correct the violation between the date that abatement was required (September 12, 2012)
through the time of the issuance of the NFTA (March 22, 2013) merits a substantial penalty.
However, the penalty proposed by the Secretary of $36,000.00 would be excessive because it
does not “bear a reasonable relationship to the amount of the penalty which was assessed for the
existence of the violation in the first place.” Empire Art, 2 BNA OSHC at 1232.
If Schmitt Tree had corrected the violation by September 12, 2012, as required by the
original citation, it would have been required to create six or seven monthly “certification
records” through the day the NFTA was issued (March 22, 2013). 10 Each of the at least six
failures to create a monthly certification record constitutes a discrete failure to correct the original
violation, but none of these separate failures may be deemed to “continue” beyond the time that
the contemporaneous certification record was required to be made. Cf. AKM, LLC v. Sec’y of
Labor, 675 F.3d 752, 761, n.3 (D.C. Cir. 2012) (Garland, J., concurring) (an employer’s
obligation to record a reportable injury “occurs at a particular time” and does not continue

    10
      Paragraph 1910.180(d)(6) does not specify the length of time an employer is required

to keep “readily available” a monthly certification record, but for purposes of this discussion
such time shall be presumed to be at least six months. Cf. section 9(c) of the Act, 29 U.S.C.
§ 658(c) (providing that “[n]o citation may be issued under this section after the expiration of six
months following the occurrence of any violation”); AKM, LLC v. Sec’y of Labor, 675 F.3d 752,
757 (D.C. Cir. 2012) (“The mere requirement to save a record cannot possibly impose a
continuing affirmative duty to correct past failures to make the record in the first place.”).
14
thereafter). Viewed in this manner, an appropriate penalty “for each day during which such
failure or violation continues” under section 17(d) would fix the number of days that the violation
“continued” to have been at least six. With the penalty for the original violation having been
assessed and paid at $1020, an enhancement of 50% of the original penalty for each day the
violation continued would be appropriate, or $1530 per day. Multiplying the figure of $1530 by
six, an appropriate penalty for the NFTA is determined to be $9180.

                        Findings of Fact and Conclusions of Law
    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                         ORDER
    Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that

Citation 1, Item 2, alleging (as amended) a failure to abate a violation of 29 C.F.R.
§ 1910.180(d)(6) is AFFIRMED, and a penalty of $9180 is assessed.

                                  /s/
                                  WILLIAM S. COLEMAN
                                  Administrative Law Judge

Date: May 27, 2014

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