Matsu Alabama, Inc., d/b/a A Division of Matcor Automotive, Inc.
Press-safety and repeat machine-guarding citations largely affirmed
Apply this to your situation
This order from 2015 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
Matsu Alabama assigned a temporary worker hired as a janitor to operate and load a mechanical press without adequate press training or supervision. A bent crowder-bar safeguard failed to keep him within the light curtain, and the press caused severe amputation injuries to both hands and one forearm. The judge affirmed serious items involving lockout/tagout, point-of-operation guarding, press inspections, training and supervision, and compressed-air cleaning. The judge also affirmed a repeat machine-guarding item for drill and milling machines and an other-than-serious injury-recording item. A press-mode key-control item was vacated because OSHA did not prove the operators holding keys were unqualified or unauthorized. Total penalties were $103,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.217(b)(7)(iii); 29 C.F.R. § 1910.217(c)(3)(iii)(f); 29 C.F.R. § 1910.217(e)(1)(i); 29 C.F.R. § 1910.217(f)(2); 29 C.F.R. § 1910.242(b); 29 C.F.R. § 1910.212(a)(1); 29 C.F.R. § 1904.29(b)(3)
- Outcome: One serious press-control item vacated; all other serious, repeat, and recordkeeping items affirmed; $103,000 total penalty assessed.
- Key point: A manufacturer remains responsible for guarding, training, supervision, and injury recording when it directs temporary workers' day-to-day press work.
Full text (OSHRC public release)
Some personal identifiers have been redacted for privacy purposes
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,
Complainant,
v. OSHRC DOCKET No. 13-1713
MATSU ALABAMA, INC., d/b/a A Division
of MATCOR AUTOMOTIVE, INC.,
Respondent.
DECISION AND ORDER
COUNSEL: M. Patricia Smith, Solicitor of Labor, Theresa Ball, Associate Regional Solicitor,
Joseph B. Luckett, Counsel, Schean G. Belton, Senior Trial Attorney and Willow E. Fort, Trial
Attorney, for Complainant.
John J. Coleman, III, Esq., and Ronald W. Flowers, Jr., Esq., Burr & Forman, LLC, for
Respondent.
JUDGE: John B. Gatto.
I. INTRODUCTION
Matsu Alabama, Inc. (dba A Division of Matcor Automotive, Inc.) (Matsu) manufactures
automobile parts at a facility in Huntsville, Alabama. On April 3, 2013, the United States
Department of Labor’s Occupational Safety and Health Administration (OSHA) initiated an
inspection of that facility in response to an employee complaint, which alleged that on April 2,
2013, [redacted], a temporary worker hired as a janitor, had been caught in a mechanical power
press resulting in amputation injuries. As a result of the inspection, three citations were issued to
Matsu on September 30, 2013, by the Birmingham, Alabama, OSHA Area Director pursuant to
section 9(a) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 658(a),
651-678, 1 and the standards promulgated thereunder. 2
1
The Secretary of Labor assigned responsibility to OSHA for enforcement and delegated his authority under the Act
to the Assistant Secretary for Occupational Safety and Health, who heads OSHA, and authorized the Assistant
Secretary to redelegate his authority. See 65 FR 50017, 50018 (2000). The Assistant Secretary promulgated
regulations authorizing OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R.
§§1903.14(a) and 1903.15(a).
Citation Number 1 alleges six serious violations involving the Lockout/Tagout (LOTO)
standard, 3 the Mechanical Power Presses standard, 4 and the general Hand and Portable Powered
Tools and Equipment standard, 5 with proposed penalties totaling $39,000. (Compl., Ex. A, pp. 1-
8.) Citation Number 2 alleges a repeat violation of the general requirements of the Machine
Guarding standard 6 with a proposed penalty of $35,000. (Compl., Ex. A, p. 9.) Citation Number
3 alleges an other-than-serious violation of the Recordkeeping and Reporting standard 7 with a
proposed a penalty of $1,000. 8 (Compl., Ex. A, p. 10.)
Matsu timely contested the citations and the Secretary of Labor initiated the above-styled
action with the Commission by filing a Complaint against Matsu pursuant to Commission Rule
34(a), 29 C.F.R. § 2200.34(a), seeking to affirm the citations. In response to the Secretary’s
allegations, Matsu argues the Secretary failed to establish any of the alleged violations and
further, asserts multiple affirmative defenses, including unpreventable employee misconduct and
preemption of certain cited standards. (Matsu Post-Trial Br., pp. 51, 70.) The Commission has
jurisdiction of this action pursuant to section 10(c) of the Act. 9
The Court issues this Decision and Order as its findings of fact and conclusions of law
pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, after hearing and carefully
considering all the evidence and the arguments of counsel. 10 If any finding is in truth a
2
See 29 U.S.C. § 654(a)(2) (each employer shall comply with occupational safety and health standards promulgated
under the Act).
3
See 29 C.F.R. §1910.147.
4
See 29 C.F.R. §1910.217.
5
See 29 C.F.R. §1910.242.
6
See 29 C.F.R. §1910.212.
7
See 29 C.F.R. §1904.29(b)(3).
8
Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a
serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§666(a), (b), (c). A serious
violation is defined in the statute; the other two classifications are not. Id. §666(k) (see Part III of this decision for
definitions of the violation classifications relevant to this case).
9
See Compl., ¶¶ 1, 2; Answer, ¶¶ 1, 2; see also Proposed Pretrial Order, ¶ 4; Attach. E, Stipulated Facts, ¶¶ 1, 2.
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conclusion of law, or if any conclusion stated is in truth a finding of fact, it shall be deemed so.
For the reasons indicated infra, the Court VACATES Citation Number 1, Item 2 and its
proposed penalty of $7,000.00, AFFIRMS the remaining Citations, and ASSESSES penalties
totaling $103,000.00.
II. BACKGROUND
At all times relevant to this action, Matsu operated a facility located in Huntsville,
Alabama, its principal place of business, where it manufactured automotive parts utilizing
mechanical power presses and employed approximately 208 of its own employees and used an
additional 45-50 temporary employees provided by Surge Staffing, LLC, (Surge), an onsite
staffing agency. (Jt. Proposed Pretrial Order, Attach. E, Stipulated Facts, ¶¶ 3, 4.) In January of
2012, for the first time, Surge assigned an onsite manager, Jesse Williams, to oversee Surge
employees at Matsu’s facility. (Tr. 1068.) In February of 2013, Adam Wolfsberger replaced
Williams as Surge’s onsite manager. (Tr. 243, 1068.) That same month, [redacted] applied
online to work for Surge and subsequently went for an interview at Matsu’s Huntsville facility
where he and two other Surge applicants met with Wolfsberger. 11 (Tr. 116, 118-119, 242.)
[redacted] and the other two applicants filled out some paperwork and were shown a short two
minute power point presentation on safety. Wolfsberger gave them a quick walk around tour of
the facility and described the available positions and shift hours. (Tr. 119, 122-123.) [redacted]
was hired for the third shift janitor position, which included sweeping, mopping, and picking up
trash. (Tr. 125, 136.)
Since Wolfsberger was not at the facility during the third shift, [redacted] was directed to
report to Matsu’s plant manager, Takumu Pinchon, and upon arrival at his first evening shift
Pinchon directed [redacted] to another Surge employee for instructions. (Tr. 129-130, 131-133,
10
A trial in this matter was held on July 15 and 16, 2014, in Huntsville, Alabama, and on November 20 and 21,
2014, in Birmingham, Alabama. The parties filed post-trial briefs on February 12, 2015, and February 13, 2015, and
reply briefs on April 17, 2015 and April 20, 2015. The Court issued an order on August 24, 2015, sua sponte
reversing an evidentiary ruling made at trial and provided the parties an opportunity to supplement the record within
15 business days with trial depositions and supplemental briefs. Matsu filed a supplemental brief on September 15,
2015.
11
[redacted] testified he reported to Wolfsberger when he arrived at Matsu’s facility and Wolfsberger was the
person who gave the orientation presentation and assigned the applicants to the positions. (Tr. 118-128.)
Wolfsberger, however, testified [redacted] was in the last group orientation of Williams. Based upon the specific
and detailed testimony of [redacted] regarding the events that day, the Court credits Allen’s testimony and finds
Wolfsberger was the person who gave the orientation presentation and assigned [redacted] to his janitor position.
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137.) Approximately one week after [redacted] began working at Matsu, Pinchon directed
Matsu team leader Chris Hall to take [redacted] off of his janitorial duties and “put him on the
press.” (Tr. 138, 139, 1066.) [redacted] testified he never wanted to become a press operator but
was afraid to decline the assignment: “I was really trying to keep my job. I’ve got three babies. [I
was] really trying to do something different for them. I wasn’t trying to lose my job.” (Tr. 203.)
At trial, Wolfsberger confirmed that [redacted] had never expressed a desire to work on the
mechanical presses and, in fact, had “made comments about kind of being scared of” the presses.
(Tr. 271.) Wolfsberger did not tell [redacted] he would be required to perform any assignments
other than the janitorial position. (Tr. 254.) Wolfsberger also testified [redacted] would not have
had an opportunity to speak with him regarding any concerns he had about working on the press
since they worked different shifts. (Tr. 274.)
On [redacted]’s first press assignment, he worked loading blanks into a press with an
employee named “Ninon,” and the only instructions she gave him on how to operate the press
were, “you turn around and get these blanks out of the bin. Get these blanks out of the bin. You
load them in the machine and you make sure you get back.” (Tr. 141, 142.) When [redacted]
asked her what “get back” meant, Ninon told him, “‘those light curtains. We’ve got light
curtains that we have to stay out of.’” (Id.) Significantly, during the break on his first press
assignment, Pinchon approached [redacted] and told him, “Don’t tell nobody I’ve been putting
you on the presses.” (Tr. 143.) [redacted]’s second press assignment required him to grab metal
pieces from the press after they had been cut in half. After [redacted] grabbed a metal piece, he
would “step back real fast” because “the guy told me to stay out of the light curtain, and that’s
when he showed me that it had light curtains. That’s when I really, really saw them up close.”
(Tr. 145.)
The last time Pinchon had Hall assign [redacted] to work on a press was April 2, 2013,
the day of the accident, approximately five weeks after [redacted] had started working at Matsu’s
facility. 12 (Tr. 137, 287.) Hall again approached [redacted] and told him, “[Pinchon] said he
12
Matsu misrepresented the length of time [redacted] worked at Matsu’s facility when it asserted in its brief it “had
no way to predict that [redacted] would choose that night to ignore instruction he had consistently followed in past
months.” (Matsu’s Post-Trial Brief, pp. 61-62) (emphasis added). It is undisputed [redacted] began working at
Matsu’s facility on February 24, 2013, and ended after the accident on April 2, 2013, a period of five weeks and two
days.
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wants you to help work with Jeffrey Carter on this press [Press Number 10].” (Tr. 37, 150.)
[redacted] had never worked on Press Number 10 before and he was not familiar with its safety
features. (Tr. 151.) Press Number 10 was similar to the first press [redacted] worked on except
on the first press, both the operator and the loader stood next to each other on a platform, and
with the platform, it was easier for [redacted] to load blanks since he didn’t have to reach as high
or lean into the machine. (Tr. 152-153, 163.)
For the first few hours, [redacted] was the Operator of Press Number 10 and controlled
the button that activated the press. (Tr. 154.) However, after the meal break, Carter took over as
the Operator while [redacted] began loading the blanks. (Tr. 156-157.) [redacted] has a slight
build and weighs only 135 pounds and when he leaned close to the press in order to load the
blanks, his entire body fit in the space between the press and the vertical light curtain that was
meant to deactivate the machine if he was within the danger zone of the press. With Press
Number 10, since there was no platform to stand on, Carter as the Operator, stood to the left side
of [redacted] while [redacted] loaded the blanks. (Tr. 156-157, 183.)
As [redacted] was in the die of the press, he noticed Carter was turning or spinning away
from him and then, in [redacted]’s words, “I just felt something on my back. It just felt like it
was just coming—like the whole world was coming down on me. But it was the machine.” (Tr.
157.) As [redacted] tried to squeeze himself out of the press, he stepped back and in doing so,
stepped into the light curtain zone, which caused the press to stop cycling and instantly shut off.
[redacted]’s hands were still inside the press when it shut off. (Tr. 194-197.) [redacted]’s right
hand up to his wrist was caught in the press and although his left hand was almost out of the
press, several of his left hand fingers were also caught inside the press. (Tr. 158, 195, 201.) The
machine was burning [redacted]’s hands and a fan was brought to try and help keep him cool.
(Tr. 197.)
Since [redacted]’s hands were extended above his head when the press stopped cycling, a
platform was also brought for [redacted] to stand on so that he was level with the press. (Id.)
[redacted] testified, “I was just talking to myself about [what] my daddy had told me.” (Tr. 198.)
[redacted]’s father had been a press operator for 30 years and he had told [redacted] every night
before [redacted] went to work “don't let that monster eat you up.” (Id.) It took approximately
45 minutes for emergency services to arrive at the facility and another 15 minutes to get the
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machine off of [redacted]. (Tr. 199.) Meanwhile, the press continued to burn his hands. After
[redacted] was finally extricated from the press, his whole left hand was “flat like a pancake,”
and some of his fingers had been amputated by the press. (Tr. 158, 195, 201.) His right hand was
completely crushed and was amputated at the hospital that morning—and eventually was
amputated to the middle of his forearm. (Tr. 200-202.)
The day after the accident, OSHA’s Birmingham Area Office received an employee
complaint regarding [redacted]’s accident and that same day Gary Vernon, 13 an OSHA
Compliance Safety and Health Officer, went to Matsu’s facility to open an investigation. (Tr.
286, 287; Ex. C-31, p. 1.) Upon his arrival Vernon met with Matsu’s General Manager, Robert
“Bobby” Todd, and conducted an opening conference with the on-site management, which
included Gregg Patterson, the company’s Human Resources Manager and safety person, and
John Carney, the company’s Vice President. (Tr. 289, 292-293.) In his first contact with the
company, Vernon spent roughly six hours at the facility. Vernon spoke briefly with Todd about
how Press Number 10 operated. (Tr. 294-296.) Over a period of days Vernon requested
documents regarding the company safety programs and injury records. He also arranged
employee and management interviews. (Tr. 296.)
In the midst of Vernon’s investigation, OSHA received two additional employee
complaints against the company. An April 24, 2013, employee complaint alleged an employee
“had hand/fingers caught in-machine in Tool and Die maintenance area” resulting in a “crush or
amputation injury to hand/finger.” (Ex. C-31, p. 2.) Another employee complaint was received
May 16, 2013, which alleged key controls and selection modes on the mechanical power presses
were being left unsupervised and the doors of the motor controllers to the mechanical power
presses were being left open. (Tr. 364-365.) Vernon investigated the two additional complaints
13
Vernon has “about 14 years of experience in working in plants and facilities that actually have machine shops and
they have milling and drilling machines.” (Tr. 653-654.) Vernon was trained to recognize hazards on those
machines at the OSHA Training Institute which, covered the standards of 29 CFR 1910 and the different aspects of
guarding. (Tr. at 654.) “And in those classes they taught you which is the regular guarding requirements; they
taught you about wood working; they taught you about mechanical power presses; they taught you – they taught us
about transmission devices and things of that nature.” (Tr. 654-655.) Vernon’s training also included “working with
milling and drilling machines in the various safety classes and also in observing work of employees actually
performing their duties of drilling holes and tapping things and things of that nature.” (Tr. at 654.) He has “observed
employees operating drills before so [he] could identify what kind of guards need to be on the equipment.” (Tr.
656.)
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in the same manner as the first. He conducted a walk around of the areas identified in the
employee complaints, took photographs, interviewed employees, and reviewed records. (Tr. 368-
370.) At the conclusion of his investigation, Vernon recommended that the OSHA Area Director
issue Matsu the three citations at issue.
III. ANALYSIS
In the Eleventh Circuit, the jurisdiction in which this case arose, 14 “[t]o make a prima
facie showing that an employer violated an OSHA standard, the Secretary must show: “(1) that
the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard
that was created; and importantly, (4) that the employer ‘knowingly disregarded’ the Act’s
requirements.” Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor, 567 F. App'x 801, 803 (11th
Cir. 2014) (citation omitted). “If the Secretary establishes a prima facie case with respect to all
four elements, the employer may then come forward and assert the affirmative defense of
unpreventable or unforeseeable employee misconduct.” Id., 567 F. App'x at 803 (citation
omitted). However, “[a]s has often been said, OSHA does not impose strict liability on an
employer but rather focuses liability where the harm can in fact be prevented.” Central of Ga.
R.R. Co. v. OSHRC, 576 F.2d 620, 623 (5th Cir.1978). 15
A. Citation 1, Alleged “Serious” Violations
As indicated supra, Citation Number 1 alleges six serious violations involving three
different standards. Whether the violative condition is “serious” depends on an application of
section 17(k) of the Act, which indicates a “serious” violation is one that carries “a substantial
probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). “The
gravamen of a serious violation is the presence of a ‘substantial probability’ that a particular
14
Matsu’s facility is in Huntsville, Alabama, which is also its principal place of business. (Jt. Proposed Pretrial
Order, Attach. E, ¶ 3.) Both party may appeal the final order in this case to the Eleventh Circuit Court of Appeals,
and in addition, Matsu may also appeal to the District of Columbia Circuit. See 29 U.S.C. §660(a) & (b). The
Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the
Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ
from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).
15
The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. Immediately after the split, the
Eleventh Circuit stated in Bonner v. City of Prichard, Alabama, 661 F. 2d 1206 (11th Cir. 1981), that any opinion
issued by the Fifth Circuit before the close of business on September 30, 1981 is binding precedent on the Eleventh
Circuit.
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violation could result in death or serious physical harm.” Chao v. OSHRC, 401 F.3d 355, 367
(5th Cir. 2005) (citing Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir. 1979).
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Item 1, Alleged Violation of Section 1910.147(c)(4)(i)
of the LOTO Standard
The Secretary alleges in Item 1 Matsu committed a serious violation of section
1910.147(c)(4)(i) of the LOTO standard, which requires that “[p]rocedures shall be developed,
documented and utilized for the control of potentially hazardous energy when employees are
engaged in the activities covered by this section.” 29 C.F.R. § 1910.147(c)(4)(i). More
specifically, the Secretary asserts on or about May 16, 2013, in the Press Line Room on Press
Numbers 1 through 11, Matsu violated the LOTO standard when its tool and die shop employees
“were performing maintenance and servicing activities on dies in the danger zone area without
presses being locked and tagged out.” 16 (Compl., Ex. A, p. 6.)
In order to prove that Matsu violated the LOTO provision at issue, the Commission 17 has
held “the Secretary must show that the LOTO standard applies, [Matsu] failed to comply with
the cited LOTO provision[], [Matsu] employees had access to the violative conditions, and
[Matsu] either knew or should have known of these conditions with the exercise of reasonable
diligence.” Jacobs Field Servs. N. Am., 25 BNA OSHC 1216 (No. 10-2659, 2015). See also
Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in pertinent
part, 681 F.2d 69 (1st Cir. 1982).
Application of LOTO standard
“The LOTO standard, which became effective January 2, 1990, was promulgated to
prevent industrial accidents during servicing of machines that remain in an operational mode, are
turned off but connected to a power source, retain stored energy, or are reactivated by another
worker unaware that servicing is in progress.” Dayton Tire, 23 BNA OSHC 1247, 1250 (No. 94-
1374, 2010) (citing Gen. Motors Corp., 22 BNA OSHC 1019, 1022 (No. 91-2843E, 2007)
(consolidated)). “Specifically, the LOTO standard ‘covers the servicing and maintenance of
machines and equipment in which the unexpected energization or start up of the machines or
16
The Secretary does not dispute Matsu developed and documented procedures for mechanical power presses at its
facility but rather, asserts Matsu failed to utilize it when performing maintenance and servicing activities on the
mechanical power press dies. (Sec’y Post-Trial Brief, p. 8; see also Ex. C-4.)
17
Neither party cited to, nor has the Court found any, binding precedent of the Fifth or Eleventh Circuit involving
the LOTO standard. The Court therefore applies the precedent of the Commission in deciding the alleged LOTO
violation.
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equipment, or release of stored energy could cause injury to employees.’ 29 C.F.R. §
1910.147(a)(1)(i).” Jacobs Field Servs., 25 BNA OSHC at 1217 (emphasis in original); Dayton
Tire, 23 BNA OSHC at 1251. “Servicing and/or maintenance” is defined as “[w]orkplace
activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and
maintaining and/or servicing machines or equipment,” including “lubrication, cleaning or
unjamming of machines or equipment and making adjustments or tool changes, where the
employee may be exposed to the unexpected energization or startup of the equipment or release
of hazardous energy.” 29 C.F.R. § 1910.147(b). Under the LOTO standard, “energized” means
“connected to an energy source or containing residual or stored energy.” Id.
However, servicing or maintenance that takes place “during normal production
operations” is covered by the LOTO standard only if (1) “[a]n employee is required to remove or
bypass a guard or other safety device,” or (2) “[a]n employee is required to place any part of his
or her body into an area on a machine or piece of equipment where work is actually performed
upon the material being processed ... or where an associated danger zone exists during a machine
operating cycle.” 29 C.F.R. § 1910.147(a)(2)(ii). “Normal production operations” means “the
utilization of a machine or equipment to perform its intended production function.” 29 C.F.R. §
1910.147(b). An additional exception to this particular provision, known as the “minor servicing
exception,” provides:
Minor tool changes and adjustments, and other minor servicing activities, which
take place during normal production operations, are not covered by this standard
if they are routine, repetitive, and integral to the use of the equipment for
production, provided that the work is performed using alternative measures which
provide effective protection (See subpart O of this part).
29 C.F.R. § 1910.147(a)(2)(ii) (note).
Matsu asserts the Secretary “failed to establish that any work was performed on dies in
presses that [did] not fall within an exception to the standard.” (Jt. Proposed Pretrial Order,
Attach. D, p. 1.) However, it is Matsu, not the Secretary, which “carries the burden of proof on
this issue.” Dayton Tire, 23 BNA OSHC at 1258; see also Kaspar Wire Works, Inc., 18 BNA
OSHC 2178, 2194 (No. 90-2775, 2000) (“The Commission has repeatedly held... that ‘the party
claiming the benefit of an exception to the requirements of a standard has the burden of proof of
its claim.”’) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001); Westvaco Corp., 16 BNA
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OSHC 1374, 1377-78 (No. 90-1341, 1993) (noting that employer bears burden of proving minor
servicing exception’s applicability); Gen. Motors Corp., 14 BNA OSHC 2064, 2067 n.14 (Nos.
82–630, 84–781, & 84–816, 1991) (consolidated) (“burden of proving the invalidity of a cited
standard is on the employer”).
To prove that its case comes within the exception, Matsu “must show that the
adjustments are minor and made during normal production operations, and that effective
alternative protection is provided.” Westvaco, 16 BNA OSHC at 1380 (emphasis in original).
Significantly, in Westvaco, the Commission held “adjustments made to prepare for normal
production operations cannot, at the same point in time, be adjustments that are made ‘during
normal production operations.’” Id. Here, there is no dispute the mechanical presses are shut
down while work was performed on dies in the presses.
Clint Davis, 18 a Matsu tool and die maker, testified his job requires him to troubleshoot
and repair dies. (Tr. 943.) Matsu’s tool and die makers periodically perform a number of
adjustments and repairs to mechanical presses, including changing the dates stamped onto the
manufactured parts, repairing broken punches, replacing springs, and sharpening punches. These
adjustments and repairs take from 10 to 45 minutes. (Tr. 73-74, 944, 965-967.) When a repair or
adjustment was required on a mechanical press, the tool and die shop received a call over the
intercom system stating, for example, “Press 1, date change.” (Tr. 63.) The tool and die maker
responding to the call would gather his or her tool box and whatever equipment was indicated as
needed for the repair or adjustment. (Tr. 64.) Davis stated he entered the press at least once a
day to make adjustments, which took between 15 to 45 minutes. (Tr. 948-949.) Sometimes the
tool and die maker pulls a damaged part from the press and takes it to the tool shop for repair,
but “the majority of the time” the tool and die makers “work with the dies still in the presses.”
(Tr. 87.) While the tool and die maker is inside the press adjusting or repairing the dies, “the
machine is shut down” and the press operator stayed “on lookout for anyone else around the area
to let them know what’s going on. They [were] basically the lookout for the tool makers.” (Tr.
966-67; see also Matsu Post-Trial Br., pp. 39-40) (“Matsu procedure prescribes that the die . . .
has completely cut power to the press upon its removal”).
18
Since there are two Davises referenced herein, Clint Davis and [redacted] , they are referred herein by their given
names and their surnames.
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Therefore, the Court concludes Matsu has not proven that this case falls within the
exception at the end of section 1910.147(a)(2)(ii) since it’s “tool changes and adjustments” and
other “servicing activities” were not made “during normal production operations.” Clearly, they
could not have been since the machines were shut down and were not being utilized to perform
their intended production function. Westvaco, 16 BNA OSHC at 1380. Thus, since the safety
blocks were still subject to unexpected energization or start up, the LOTO standard provision
contained in section 1910.147(c)(4)(i) applied to the cited conditions.
Compliance with the Terms of the Standard
In Gen. Motors Corp., Delco Chassis Div. (GM-Delco), 17 BNA OSHC 1217, 1218
(Nos. 91- 2973, 91-3116 & 91-3117, 1995) (consolidated), aff'd, 89 F.3d 313, 315 (6th Cir.
1996), the Commission held the applicability of the LOTO standard is predicated on a showing
“that unexpected energizing, start up or release of stored energy could occur and cause injury.”
Although the phrase “unexpected energization” is not defined in the standard, the Commission
has held that “[e]nergization is ‘unexpected’ in the absence of some mechanism to provide
adequate advance notice of machine activation.” Dayton Tire, 23 BNA OSHC at 1251 (citing
General Motors Corp., 22 BNA OSHC at 1023; accord Burkes Mech., Inc., 21 BNA OSHC
2136, 2139 n.4 (No. 04-1475, 2007)).
Relying on the plain language of section 1910.147(a)(1)(i), and specifically emphasizing
the standard's inclusion of the phrase “unexpected energization,” the Commission has held that
the “Secretary must show that there is some way in which the particular machine could energize,
start up, or release stored energy without sufficient advance warning to the employee.” GM-
Delco, 17 BNA OSHC at 1219-20, aff'd, 89 F.3d 313, 315 (6th Cir. 1996) (affirming
Commission and noting that, in context of LOTO standard, “use of the word ‘unexpected’
connotes an element of surprise, and there can be no surprise when a machine is designed and
constructed so that it cannot start up without giving a servicing employee notice of what is about
to happen”).
Under this Commission precedent, therefore, the LOTO standard's use of the term
“unexpected” unambiguously refers to the potential of a machine or equipment to “energize, start
up, or release stored energy without sufficient advance notice to the employee.” See Ormet
Corp., 14 BNA OSHC 2134, 2135 (No. 85-531, 1991). And the term does not require the
−12−
Secretary to quantify the specific risk level associated with such an event. As the Commission
noted in General Motors Corp., “[a]s evidenced by the fatality that prompted OSHA's inspection
here, even momentary exposure to equipment that has not been fully deenergized and locked out
poses a significant risk of serious harm or death.” 22 BNA OSHC at 1048; accord Burkes Mech.,
21 BNA OSHC at 2142 (finding significant risk of serious injury or death to laborers working
under conveyor that was not locked out, as illustrated by fatality); see Int'l Union, UAW v.
OSHA, 37 F.3d 665, 670 (D.C. Cir. 1994) (rejecting pre-enforcement challenge to OSHA LOTO
standard, and noting that in its supplemental statement of reasons to its rulemaking OSHA stated
that “workers face a significant risk of material harm every time they perform service or
maintenance work on powered industrial equipment” (citing 58 Fed. Reg. 16,612, 16,620 (Mar.
30, 1993)).
There is no dispute Matsu did not issue locks and tags to its tool and die makers and did
not require them to lockout or tagout mechanical presses when they worked on them. (Tr. 70, 89,
421.) Nonetheless, Matsu argues “OSHA’s own rules acknowledge that die blocks are the most
effective means for the control of hazardous energy on mechanical power presses.” (Matsu Post-
Trial Br., p. 17) The Court does not agree. To the extent Matsu claims that use of safety blocks
were “alternative measures,” the Court finds that those measures were ineffective. Turning off
the machine would not prevent its unexpected energization or startup. William Tarwater, a
former Matsu tool and die maker for approximately two years, testified that pulling the die block
did not shut down the press completely since the flywheel motor was still on. (Tr. pp. 68-70.)
Therefore, the presses were still energized even when the die block was pulled.
Significantly, the safety blocks were not under the exclusive control of the tool and die
makers. Therefore, Matsu did not prevent employee access to the point of operation of a press
since an operator or other employees could remove the safety block without the tool and die
maker’s knowledge. Tarwater testified about an instance when he pulled the safety block on a
mechanical press in order to repair a broken punch. (Tr. 59, 78.) Tarwater left the mechanical
press area and went to the tool and die shop to retrieve a tool he needed. He returned to the press
and began working inside of it to replace the punch. Richard Tate, Tarwater’s supervisor and
Matsu’s Tool Room Supervisor, approached Tarwater and told him he was going to suspend
Tarwater because he was working inside a press without using a safety block. Tarwater went to
−13−
the other side of the press and noticed someone had removed the safety block and placed it in its
storage space. (Tr. 79, 943.) Upon further inquiry, Tate and Tarwater learned the press operator
had returned to the press, observed the unlocked and untagged safety block in place and, not
seeing a tool and die maker in the immediate area, the press operator removed the safety block in
order to continue operating the press. (Tr. 79-80.)
Tarwater was clearly exposed to the potential of unexpected energization of this press by
the operator. Tarwater stated he “would consider that a near miss” when he was working inside
the press after the operator had removed the safety block he had set in place. (Tr. 82.) Tarwater
also testified that anybody could remove a safety block pulled by a tool and die maker and the
tool and die maker had no control over it while he was working. (Tr. 81.)
Tarwater’s testimony on this issue regarding the removed safety block was undisputed.
Tarwater testified the first day of trial on July 15, 2014. The trial continued the next day and
then resumed in November, four months later. At no time did Matsu call anyone to the stand to
rebut Tarwater’s testimony or offer other evidence contradicting Tarwater’s testimony that an
operator had removed the safety block without Tarwater’s knowledge, exposing him to crushing
and amputation hazards. 19 Therefore, Matsu “has not demonstrated that the cited activities were
‘performed using alternative measures which provide effective protection.’” Dayton Tire, 23
BNA OSHC at 1258. Thus, the Secretary has established Matsu failed to require its tool and die
makers to use proper LOTO procedures when adjusting or repairing dies on mechanical presses
in violation of the cited standard.
Employee Access to the Violative Condition
The Secretary contends when a tool and die operator is required to make adjustments or
repairs to the dies of a press, the operator has access to its danger zone and is exposed to
amputation or crushing injuries. Vernon photographed tool and die team leader Larry
Sebastian 20 placing his hands and arms between the dies of a mechanical press. (Tr. 370; see also
19
The Court closely observed Tarwater during his testimony. He was candid and responsive to the questions posed
to him. He displayed no evasiveness, uneasiness, or deflective tactics. Tarwater gave no indication he harbored any
animus towards Matsu. When asked if he wanted his job back at Matsu, Tarwater responded, “I wouldn’t mind
having that job back. They’re not that easy to find for an older man like me.” (Tr. 99.) The Court finds Tarwater a
credible witness and gives considerable weight to his testimony.
20
Since there are two Sebastians referenced herein, Larry Sebastian and Michael Sebastian, they are also referred
−14−
Ex. C-1, pp. 1, 5.) Vernon observed the press’s safety block had been pulled but that LOTO
procedures had not been implemented. (Tr. 393.) Matsu argues that since Vernon admitted he
did not know whether Larry Sebastian was engaged in a die-setting operation at the time he was
photographed, the Secretary failed to prove Larry Sebastian was performing maintenance or
servicing within the meaning of the LOTO standard. (Tr. 445.) The Court does not agree with
Matsu.
The photographs clearly show Larry Sebastian with his hands and arms inside the point
of operation of the press on which he was working. The press is not engaged in normal
production operations because the safety block had been pulled and placed in the press.
Similarly, Tarwater also testified that when making adjustments and repairs to dies while they
were still in the presses, he was required to lean into the die, entering the point of operation. (Tr.
59, 69, 77-78.) Likewise, Clint Davis also testified he used a hand or surface grinder to sharpen
punches on the mechanical presses and described the manner in which he changed a broken
spring on a component of the die. (Tr. 943, 967-968.) Both tasks required Davis to place his
hands and arms within the danger zone of the press. “[T]he Commission may draw reasonable
inferences from the evidence[.]” Fluor Daniel, 19 BNA OSHC 1529, 1531 (Nos. 96-1729 & 96-
1730, 2001) (citing Atlantic Battery Co., 16 BNA OSHC 2131, 2159 (No. 90-1747, 1994)). The
Court concludes the reasonable inference from the evidence is that Vernon observed Sebastian
engaged in servicing or maintenance on the dies of the press when LOTO procedures had not
been implemented.
Matsu nonetheless argues its procedure of pulling the safety block and placing it between
the ram and the bolster “forecloses employee exposure.” (Matsu Post-Trial Br., p. 31.) The
Court finds no merit in Matsu’s argument. As indicated supra, the safety blocks were not under
the exclusive control of the tool and die makers and did not prevent employee access to the point
of operation of a press since an operator or other employee could remove the safety block
without the tool and die maker’s knowledge. Even Tarwater’s momentary exposure to
equipment that has not been fully deenergized and locked out posed a significant risk of serious
harm or death. General Motors Corp., 22 BNA OSHC at 1048. Thus, the Court concludes the
herein by their given names and their surnames.
−15−
Secretary has established Matsu’s tool and die makers had access to the danger zone and were
exposed to amputation or crushing injuries at the point of operation when working in the presses.
Employer Knowledge
Matsu does not dispute that its policy prevented tool and die makers from locking or
tagging out its mechanical presses when they worked inside the presses making adjustments and
repairs, but rather, argues it lacked fair notice because the Secretary did not cite it for violating
the LOTO standard following a 2010 OSHA inspection 21 and “OSHA inspectors must cite
violations they find.” (Matsu Post-Trial Br., p. 40.) The Court does not agree. It is well-
established that “an employer cannot rely on the failure of the Secretary to issue a citation for a
particular condition during an earlier inspection as the basis for later arguing lack of knowledge
of the same hazardous condition.” Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1780, 1782
(No. 91-2524, 1994). 22 “In essence, the mere fact of prior inspections does not give rise to an
inference that OSHA made an earlier decision that there was no hazard, and does not preclude
the Secretary from pursuing a later citation.” Seibel Modern Mfg. & Welding Corp., 15 BNA
1218, 1224 (No. 88-821, 1991).
In Seibel, the Commission noted it had previously “cautioned employers against freely
drawing such inferences from uneventful inspections” since “an employer is required to comply
with a standard regardless of whether it has previously been informed that a violation exists.” Id.
at 1223-1224 (citing Simplex Time Recorder Co., 12 BNA OSHC 1591, 1596 (No. 82-12, 1985);
21
By Order dated December 24, 2014, the Court took judicial notice “that the Alabama Safe State Program is the
OSHA-approved and funded state occupational safety and health consultation service for the State of Alabama
established pursuant to the OSH Act. 29 U.S.C. §670(d)[,]” which sends consultants to perform safety audits of
worksites. To the extent Matsu apparently argues it did not have notice since SafeState did not recommend
implementing LOTO procedures following its audit of Matsu’s facility, the Court finds this argument is not relevant
for the sames reasons indicated infra. (Id.)
22
Matsu cites three cases (Martin v. Miami Indus., 983 F.2d 1067 (6th Cir. 1992); Trinity Marine Nashville, Inc., 275
F.3d 423, 430 (5th Cir. 2001); and Interstate Brands Corp., 20 BNA OSHC 1102 (No. 00-1077, 2003)) which it
claims support its argument that OSHA cannot cite an employer for a violation if it did not cite the same alleged
violative conditions in a previous inspection. The two circuit court opinions are not binding precedent since, as
indicated supra, this case arose in the Eleventh Circuit. Further, all three cases are easily distinguishable from the
present case. In each of the cases cited by Matsu, an OSHA compliance officer affirmatively told the employer that
a specific condition or piece of equipment was in compliance with a later-cited standard or made recommendations
that the employer followed. In the present case, Matsu presented no evidence that during the 2010 inspection
OSHA’s compliance officer informed Matsu it was not required to implement LOTO procedures when its tool and
die makers adjust or repair dies in mechanical presses.
−16−
Columbian Art Works, Inc., 10 BNA OSHC 1132, 1133 (No. 78-29, 1981); GAF Corp., 9 BNA
OSHC 1451, 1457 (No. 77-1811, 1981). “These cases implicitly rule against deducing from
uneventful prior inspections that particular operations are nonhazardous.” Id. See also
International Harvester Co. v. OSHRC, 628 F.2d 982, 985 n. 3 (7th Cir.1980) (earlier failure to
cite for violation of a particular standard is not a decision that the employer was complying). Cf.
Cedar Construction Co. v. OSHRC, 587 F.2d 1303, 1306 (D.C.Cir.1978) (“[w]e believe that
recognizing such a right [to rely on uneventful prior inspections] would discourage self-
enforcement of the Act by businessmen who have far greater knowledge about conditions at their
workplaces than do OSHA inspectors”). The Court concludes the Secretary has established
Matsu had actual knowledge of the cited condition since, in lieu of using the LOTO procedures,
the company’s own policy required the use of die blocks with its mechanical presses when tool
and die makers worked inside the presses.
Preemption Claim
Matsu contends the LOTO standard does not apply to the cited mechanical presses
because the “standard governing mechanical press die adjustment and repair displaces it.” 23
(Matsu Post-Trial Br., p. 32.) The standard referred to by Matsu is the Mechanical Power
Presses standard, which in relevant part mandates employers shall provide and enforce the use of
safety blocks “whenever dies are being adjusted or repaired in the press.” 29 C.F.R. §
1910.217(d)(9)(iv). Therefore, Matsu argues “[t]he mechanical power press standard requires
only pulling die blocks, and not § 1910.147 lockout, before making die adjustments and repairs
inside presses.” (Matsu Post-Trial Br., p. 31.)
In the Eleventh Circuit, a “general standard setting forth measures that an employer must
take to protect employees from a particular hazard is not preempted by a specific standard unless
that specific standard addresses the same particular hazard as the general standard.” Brock v.
Williams Enterprises of Georgia, Inc., 832 F.2d 567, 570 (11th Cir. 1987) (citing L.R. Willson &
23
At the trial and in its briefs, Matsu relies heavily on statements made by Vernon in a deposition taken under Fed.
R. Civ. P. 30(b)(6), which Matsu interprets as admissions by Vernon that the LOTO standard does not apply to the
cited conditions and that Matsu’s compliance with section 1910.217(d)(9)(iv) is all that is required. (Tr. 705, 707,
1033.) However, Vernon’s statements are not dispositive of the issue since “’the Commission is not bound by the
representations or interpretations of OSHA Compliance Officers.” Kaspar Wire Works, Inc. v. Sec'y of Labor, 268
F.3d 1123, 1128 (D.C. Cir. 2001) (citing L.R. Wilson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C.Cir.1982)).
−17−
Sons v. Donovan, 685 F.2d 664, 670 (D.C.Cir.1982)). The Court concludes the LOTO standard
is not preempted by the Mechanical Power Presses standard.
An energy isolating device is “capable of being locked out if it has a hasp or other means
of attachment to which, or through which, a lock can be affixed, or it has a locking mechanism
built into it.” 29 C.F.R. § 1910.147(b). An “affected employee” is “[a]n employee 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. 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.
As the Commission as held, the language of the LOTO standard is ambiguous as to
whether it applies to the cited mechanical presses, which are also governed by the Mechanical
Power Presses standard. Tops Markets, Inc., 17 BNA OSHC 1935, 1935 (No. 94-2527, 1997),
aff'd without published opinion, 132 F.3d 1482 (D.C. Cir. 1997). When the language of the
standard fails to provide an unambiguous meaning, we look to the standard’s legislative history.
Oberdorfer Industries, Inc., 20 BNA OSHC 1321, 1328-29 (Nos. 97-0469 & 97-0470, 2003)
(consolidated). The preamble to a standard is the most authoritative evidence of the meaning of
the standard. Wal-Mart Distribution Ctr. # 6016, 25 BNA OSHC 1396, 1398 (No. 08-1292,
2015); Superior Rigging & Erecting Co., 18 BNA OSHC 2089, 2092 (No. 96-0126, 2000); Tops
Markets, 17 BNA OSHC at 1936.
The preamble to the LOTO standard states, “this standard focuses primarily on
procedures—procedures that are necessary to provide effective control when dealing with
potentially hazardous energy sources. Where current standards require the use of specific
measures, those standards are supplemented and not replaced by the procedures and training
requirements of this Final Rule.” 54 Fed. Reg. 36665 (emphasis added). “With regard to
servicing and/or maintenance which takes place during ‘normal production operations,’ it is
important to note that this standard is intended to work together with the existing machine
guarding provisions of Subpart O of part 1910[.]” 54 FR 36644-01 (emphasis added). The
−18−
preamble also states that it “supplements and supports the existing lockout related provisions
contained elsewhere in the general industry standards by providing that comprehensive and
uniform procedures be used for complying with those provisions” and further, it “does not
conflict with their requirements” since those standards “provide limited coverage of machinery,
equipment and industries and do not address lockout or tagout issues or methodology in any
detail.” Id. (emphasis added).
Significantly, the Commission has also held “that the LOTO standard protections
prescribed for servicing and maintenance activities were designed to seamlessly dovetail with the
machine guarding protections that apply during normal production operations under 29 C.F.R.
Part 1910, subpart O.” Dayton Tire, 23 BNA OSHC at 1254. Thus, the Mechanical Power
Presses standard provides more limited coverage than does the LOTO standard since the
Mechanical Power Presses standard is silent on lockout or tagout methodology and the hazard or
requirements for the utilization of specific procedures to control the unexpected start-up of the
power presses. 24
The Court therefore finds the LOTO standard provides meaningful employee protection
beyond that afforded by the Mechanical Power Presses standard. The Cincinnati Gas & Electric
Co., 21 BNA OSHC 1057 (No. 01-0711, 2005) (citing Bratton Corp., 14 BNA OSHC 1893 (No.
83-132, 1990)). Accordingly, the preemption argument is rejected, the LOTO standard applies,
and the Secretary properly resorted to the LOTO standard to attempt to safeguard Matsu’s
24
The energy control procedure required by the LOTO standard must “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.” 29 C.F.R. §1910.147(c)(4)(i), (c)(4)(ii). Additionally, the LOTO standard prescribes a
specific sequence for the application of energy controls to incorporate into each procedure. 29 C.F.R. §1910.147(d).
It further requires employers to conduct an annual periodic inspection of the energy control procedure “to ensure
that the procedure and the requirements of this standard are being followed.” 29 C.F.R. §1910.147(c)(6). The
LOTO standard also mandates both initial training and retraining in lockout procedures for servicing employees, and
other employees who work near machines that are being serviced. 29 C.F.R. §1910.147(c)(7)(i), (c)(7)(III).
Specifically, it requires initial lockout 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.” 29 C.F.R. §1910.147(c)(7)(i). Retraining must be
provided for servicing employees when “there is a change in their job assignments, a change in machines, equipment
or processes that present a new hazard, or when there is a change in the energy control procedures.” 29 C.F.R.
§1910.147(c)(7)(III)(A). Additionally, the employer must provide retraining “whenever the employer has reason to
believe[] that there are deviations from or inadequacies in the employee's knowledge or use of the energy control
procedures.” 29 C.F.R. §1910.147(c)(7)(III)(B). The employer must also certify “employee training has been
accomplished and is being kept up to date.” 29 C.F.R. §1910.147(c)(7)(iv).
−19−
employees from the hazard of an unexpected start-up of the power presses not covered in the
Mechanical Power Presses standard.
Fair Notice Claim
“Generally speaking, an employer cannot be held in violation of the Act if it fails to
receive prior fair notice of the conduct required of it.” Miami Indus. Inc., 15 BNA OSHC 1258,
1263 (No. 88-671, 1991). See also Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567,
572 (11th Cir. 1987) (citing L.R. Willson & Sons v. Donovan, 685 F.2d 664, 670 (D.C.Cir.1982)
(due process mandates that an employer receive notice of the requirements of any OSHA
regulation before he is cited for an alleged violation). Thus, Matsu argues the Secretary failed to
provide Matsu with fair notice the LOTO standard applied to its mechanical presses. Because it
“was not given sufficient notice of the standard's applicability to die adjustment and repair.”
(Matsu Post-Trial Br., p. 38.) The Court does not agree. The Secretary’s intent to apply the
LOTO standard to die changing is reflected in two Standard Interpretation Letters.
“Congress intended to delegate to the Commission the type of nonpolicymaking
adjudicatory powers typically exercised by a court in the agency-review context. Under this
conception of adjudication, the Commission is authorized to review the Secretary's
interpretations only for consistency with the regulatory language and for reasonableness. In
addition, of course, Congress expressly charged the Commission with making authoritative
findings of fact and with applying the Secretary's standards to those facts in making a decision.”
Martin v. OSHRC, 499 U.S. 144, 152-55 (1991). Thus, if the legislative history does not resolve
questions of ambiguity, we consider the reasonableness of the Secretary’s interpretation. Shaw
Global Energy Services, Inc., 23 BNA OSHC 2105, 2107 (No. 09-0555, 2012).
In a Standard Interpretation Letter issued April 22, 2005, the Secretary put employers on
notice that “setting up” activities “by definition, involve work[s] that prepares a press to perform
its intended normal production operation; therefore, this [minor servicing] exception generally
would not apply to hydraulic and mechanical power press die-setting because the servicing
activity is not taking place during NPOs.” (Ex. C-2, n. 1.) In another Standard Interpretation
Letter issued December 28, 2006, the Secretary reiterated that “die-setting activities constitute
servicing activities and are covered by the LOTO standard, i.e., pursuant to the definitions of
“setting up” and “servicing and/or maintenance” contained in 1910.147(b).” (Ex. C-5, p. 1.)
−20−
The Court concludes the Secretary's interpretation of the LOTO Standard is consistent
with the regulatory language and is reasonable. Therefore, the Court concludes the LOTO
standard and the definitions therein indicate “servicing and maintenance” include die setting and
adjusting within the setting up activities on the presses. Moreover, when Matsu received the
citation, the Commission was in agreement with the Secretary's interpretation. See Dayton Tire,
23 BNA OSHC at 1254; Gen. Motors Corp., 22 BNA OSHC at 1019.
Matsu clearly had notice since it developed and documented procedures for mechanical
power presses at its facility. (See Ex. C-4.) As the Secretary notes in his brief, and the Court
agrees, in developing the procedures “it is evident that [Matsu] appreciated and recognized the
hazards of stored energy sources with its mechanical power presses and the need to protect its
employees from the hazard.” (Sec’y Post-Trial Br., pp. 6-7.) Matsu’s “Lockout Posted
Procedure” stated that the purpose of the procedures was to establish “the minimum
requirements for lockout whenever maintenance or servicing is done on equipment.” (Ex. C-4.)
Matsu’s LOTO procedures mirror the intent of OSHA’s regulation and require its
procedures “be used to ensure that the machine or equipment is stopped, isolated from all
potentially hazardous energy sources and locked out.” (Id.) Matsu’s LOTO procedures also
identified the different sources of energy and detailed the methods to be used to lockout and
tagout each source of energy on the power presses. For example, in order to isolate power at the
primary electrical disconnect for the power press, the knife switch was required to be placed in
the “off” position and required a lock and tag be applied to the switch. (Id.) Therefore, Matsu
had sufficient notice of the application of the LOTO standard to the cited conditions prior to the
instant inspection.
Vagueness Claim
Matsu also asserts if the LOTO standard does apply, it is “unconstitutionally vague as
applied. It is overbroad. It exceeds the scope of statutory authority.” (Matsu Post-Trial Br., p.
36.) However, “a claim that a standard is vague is assessed not in the abstract, but in the
particular factual context.” Dayton Tire, 23 BNA OSHC at 1258 (citing Bliss & Laughlin Indus.,
Inc. v. Sec'y of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982)). “Moreover, the [standard] will pass
constitutional muster even though [it is] not drafted with the utmost precision; all that due
process requires is a fair and reasonable warning.” Id.; cf. Pitt-Des Moines, Inc., 168 F.3d 976,
−21−
987 (7th Cir. 1999) (holding that “[t]he addition of an alternative, less specific means of
compliance does not make the regulation unconstitutionally vague,” and that employer relying
on alternative “did so at its peril”).
Thus, the Commission has held “the challenged elements of the minor servicing
exception are necessarily broad enough to cover the myriad servicing activities to which the
LOTO standard might apply. Dayton Tire, 23 BNA OSHC at 1258 (citing Cargill, Inc., 15 BNA
OSHC 2149, 2152 (No. 90-3191, 1993) (“the due process clause does not impose drafting
requirements of mathematical precision or impossible specificity.”); J.A. Jones Constr., 15 BNA
OSHC 2201, 2205 (No. 87-2059, 1993) (noting that Secretary needs to draft standard only “with
as much exactitude as possible in light of the myriad conceivable situations which could arise
and which could be capable of causing injury” (citation omitted)).
Moreover, the Court concludes, as the Commission did in Dayton Tire, that a reasonable
employer “could determine what constitutes ‘effective’ alternative protection, given that the
stated purpose of the LOTO standard is to prevent injury that could result from ‘unexpected
energization or startup of the machines or equipment, or release of stored energy.” 29 C.F.R. §
1910.147(a)(1)(i).” Dayton Tire, 23 BNA OSHC at 1252. “This link to the standard's purpose is
reinforced by the exception's cross-reference to ‘subpart O of this part,’ which prescribes
machine guarding requirements. . . . As such, a reasonable employer could determine, based on
knowledge of its employees' specific servicing activities and the machines upon which they
work, what alternative measures would achieve this purpose and, thus, provide effective
protection.” Id. Therefore, the Court rejects Matsu’s vagueness challenge.
Classification
Finally, the Secretary classified the violation as serious. As indicated supra, a serious
violation is one that carries a substantial probability that death or serious physical harm could
result. Here, employees were exposed to the hazard of crushing and amputation injuries due to
Matsu’s failure to require the use of LOTO procedures for its tool and die makers adjusting or
repairing dies in its mechanical presses. Therefore, the violation was properly classified as
serious. Thus, the Court concludes Item 1 should be affirmed.
−22−
Item 2, Alleged Violation of Section 1910.217(b)(7)(iii)
of the Mechanical Power Presses Standard
The Secretary alleges in Item 2 Matsu committed a serious violation of section
1910.217(b)(7)(iii), a provision in the Mechanical Power Presses standard, which mandates that
with machines using partial revolution clutches, the clutch’s means of selecting “off,” “inch”
(also called “hand transfer”), “single stroke” and “continuance” (also called “progressive”) mode
must be “by means capable of supervision by the employer.” 29 C.F.R. § 1910.217(b)(7)(iii).
The Secretary asserts that on or about May 16, 2013, 25 in the Press Line Room on Presses 1
through 11, “press operators had their own keys, one key controlled numerous presses, and
operators were able to change the press mode without supervision.”
Applicability
Section 1910.217(b)(7)(iii) is a provision in the Mechanical Power Presses standard and
since the Secretary cited eleven mechanical power presses in the press line room, section
1910.217(b)(7)(iii) applies to the cited conditions. This standard applies to machines used in
metal manufacturing. Oberdorfer Indus., 20 BNA OSHC at 1321 (affirming violation of standard
for rotating lathes used to mold patterns from pieces of metal). Therefore, the Court concludes
the cited standard clearly applied to the cited conditions. S. Pan Servs. Co., 25 BNA OSHC
1081, 1085 (No. 08-0866, 2014).
Compliance with the Terms of the Standard
Relevant to this citation item, Vernon “found that it was a routine occurrence that
employees would have more than one key to one press and that some of the keys were routinely
left in the presses as they were being operated.” (Tr. 415.) Matsu admitted “supervisors, team
leads and trained operators have keys.” (Matsu Post-Trial Br., p. 18.) However, Vernon also
admitted he did not determine whether Matsu’s press operators had been trained and authorized
to perform the supervisor function. (Tr. 748-749.) Nonetheless, the Secretary argues in his brief
“OSHA interprets the term ‘supervision of keys’ to mean ‘that only the employer or a designated
responsible person, such as the supervisor or foreman qualified by experience or training will
25
The alleged violation description for Item 2 cites May 16, 2013, as the approximate date of the alleged violation
and refers to Matsu employees assigned to operate presses in the press line. [redacted] was injured April 2, 2013.
The issue of whether Matsu failed to train and supervise [redacted] is addressed in Items 5a and 5b of Citation
Number 1.
−23−
control the operation of the press to prevent its use by unauthorized persons.’” (Sec’y Post-Trial
Br., p. 18.) Thus, the Secretary asserts Matsu violated the cited standard since there was
“overwhelming evidence to support a finding that the keys did not remain under the supervision
of [Matsu’s] supervisors or foreman.” (Id.) The Court does not agree with the Secretary.
The Secretary cites in his post-trial brief to a purported standard interpretation letter dated
July 29, 1975, which is not in evidence since he failed to tender a copy as an exhibit at trial,
failed to attach it as an exhibit to his post-trial brief, and failed to move the Court to take judicial
notice of it. See Fed. R. Evid. 201(c)(2). Apparently, the Secretary assumed the Court would
simply take judicial notice of the cited interpretation letter. However, the Court declines to do so
since the Secretary had ample opportunity at trial to present any evidence he felt was relevant. 26
See Article II Gun Shop Inc., 16 BNA OSHC 2035, 2036 (Nos. 91–2146 & 91–3127, 1994)
(consolidated). Further, even applying the Secretary’s interpretation that “supervision of keys”
means “a designated responsible person, such as the supervisor or foreman,” the Court does not
agree with the Secretary that he established a violation of the cited standard (emphasis added).
The relevant national consensus standard, ANSI B11.1-2009, the American National Standards
Institute’s (ANSI) American National Standard for Safety Requirements for Mechanical Power
Presses, indicates in paragraph E9.6 that “[a]nyone who is trained and authorized by the user
may perform the ‘supervisor’ function. There is no intent to imply that only a person with a title
‘supervisor’ can assume that function.” (Ex. R-27, p. 104.)
More importantly, the Eleventh Circuit has held the use of the phrase “such as” indicates
that the illustrations are not meant to be exhaustive. United States v. Townsend, 521 F. App'x
904, 909 (11th Cir.), cert. denied, 134 S. Ct. 203 (2013). Therefore, properly construed, the
Secretary’s interpretation that “supervision of keys” means “a designated responsible person,
such as the supervisor or foreman,” indicates that the illustrations are not meant to be exhaustive,
and Matsu is free to designate any person— not just the supervisor or a foreman— as long as
such person is “qualified by experience or training.”
As indicated supra, Vernon admitted he did not determine whether Matsu’s press
operators had been trained and authorized to perform the supervisor function. Thus, the Court
26
Clearly, the Secretary understood the necessity of providing the purported July 29, 1975 standard interpretation
letter for the record since he did identify as exhibits multiple interpretive letters. See e.g., Ex. C-2, Ex. C-5, Ex. C-
23, Ex. C-24.
−24−
concludes the Secretary failed to establish Matsu did not comply with the terms of the cited
standard since the Secretary offered no evidence demonstrating Matsu’s press operators who
maintained keys to the presses were not designated by Matsu as “responsible persons” that
“qualified by experience or training.” Therefore, the Court concludes Item 2 must be vacated.
Item 3, Alleged Violation of Section 1910.217(c)(3)(iii)(f)
of the Mechanical Power Presses Standard
The Secretary alleges in Item 3 Matsu committed a serious violation of another provision
in the Mechanical Power Presses standard, section 1910.217(c)(3)(iii)(f), which mandates in
relevant part, “[g]uards shall be used to protect all areas of entry to the point of operation not
protected by the presence sensing device.” The Secretary asserts that on the day [redacted]was
injured on Press Number 10, Matsu “failed to effectively guard the point of operation on
mechanical power presses to prevent employee injury.” The Court agrees.
Applicability
Matsu previously attached a crowder bar safeguard on Press Number 8 and Press Number
10, which was designed “to fill up that space where a person could actually walk into between
the light curtain and the point of operation.” (Tr. 318.) Matsu attached the crowder bar safeguard
in response to an accident that occurred on May 1, 2012, when [redacted] , another temporary
employee, had his hands at the point of operation and was not detected by the vertical light
curtain (the presence sensing device) when the press cycled, which resulted in finger amputation
injuries. (Tr. 500.) As a result of [redacted] ’s amputation, Todd ordered a crowder bar
safeguard to be placed across the point of operation on Press Number 8 and Press Number 10.
(Id.) Thus, the crowder bar was a safeguard “used to protect all areas of entry to the point of
operation not protected by the presence sensing device” and was used to ensure an operator
placing a blank in the press would remain inside the light curtain’s sensing area and out of the
press. (Tr. 265, 769, 996.) Therefore, the cited standard clearly applied to the cited condition.
Compliance with the Terms of the Standard
Matsu asserts, citing footnote 118 of its post-trial brief that “[redacted]confirmed he
lacked knowledge of any pre-injury bar bend.” (Matsu Post-Trial Br., p. 13 and n. 118; see also
Tr. 94; Ex. R-22, ¶¶ 7-8.) However, footnote 18 is a citation to Tarwater’s Declaration and his
trial testimony, neither of which support Matsu’s assertion. Matsu also asserts in its post-trial
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brief, citing footnote 119, that it “established [[redacted]] was not working near the bend but next
to operator Jeff Carter.” (Matsu Post-Trial Br., p. 13 and n. 119; see also Tr. 210.) The
testimony Matsu points to is [redacted]’s cross-examination. On cross-examination,
[redacted]was shown photographs, one of which was the bent crowder bar on Press Number 10.
The following colloquy occurred between [redacted]and Matsu’s Counsel:
Q.: And, in fact, you never saw that before your accident occurred, did you, sir?
[redacted]: I don't know anything about -- you know, I didn't know anything about it.
Q.: Well, My question is: whether you knew something about it or not, did you see a
bent bar before your accident there?
[redacted]: I really didn't pay no attention, no, sir.
Q.: Okay. So is the answer to my question, "no, you didn't see it"?
[redacted]: I wasn't paying any -- no.
Q.: Okay. I want to ask you something else.
The Court followed up with a brief line of questions:
COURT: I want to be clear on your answer. You indicated you "don't know" if it was
there or "no," it wasn't there?
[redacted]: At that time, me doing the job, just going -- I didn't know anything about that
bar, no, sir.
COURT: Did you know one way or the other?
[redacted]: One way or the other. They just stick me over there.
(Tr. 210.)
It is clear from [redacted]’s responses that having never been a machine operator before,
he was not familiar with machine or its parts, including the crowder bar safeguard, and that he
“didn't know anything about that bar.” His testimony does not however establish the bar was not
bent prior to the accident. On direct-examination, [redacted]credibly testified at the time of the
accident he was standing on his “tippy toes inside the machine” with both hands extended above
his head loading blanks and “the bar was bent I was leaning on to go up inside the machine.”
−26−
(Tr. 157.) [redacted]’s direct examination testimony is consistent with Matsu’s party admission
made to Vernon under Fed. R. Evid. 801(d)(2)(D) by Hall, 27 Matsu’s Team Leader over the
press operators, that at the time of the accident the crowder was been bent and had been bent for
approximately a month prior to the accident. (Tr. 318-19, 320, 329.)
Michael Sebastian testified he performed a daily inspection every morning, including an
inspection of the crowder bar safeguard, and filled out a daily inspection sheet for Press Number
10, and testified the crowder bar safeguard was not bent the morning of [redacted]’s accident.
(Tr. 992-993, 994, 996-997; see also Ex. R-3, p. 2.) His testimony conflicts with the company’s
party admission made by Hall to Vernon and [redacted]’s testimony. The Court therefore does
not credit Michael Sebastian’s testimony on this issue.
Thus, the Court finds the preponderance of evidence establishes the crowder bar
safeguard was bent at the time of the accident and had been bent for approximately a month prior
to the accident and therefore, did not provide the protection it was intended for—to keep
[redacted]within the sensing area of the light curtain. [redacted]had his hands at the point of
operation, which were not detected by the vertical light curtain when the press cycled. The Court
therefore concludes the Secretary has established Matsu failed to protect [redacted]from all areas
of entry to Press Number 10’s point of operation that were not protected by the presence sensing
device in violation of the cited regulation.
Employee Access to the Hazardous Condition
When the bent crowder bar safeguard failed to keep [redacted]within the sensing area of
the light curtain on Press Number 10, his left hand was flattened “like a pancake” and some of
his left hand fingers were amputated by the press. [redacted]’s right was completely crushed by
the press and was eventually amputated to the middle of his forearm. Clearly, [redacted]’s
access to the hazardous condition was established.
Employer Knowledge
27
Supervisor/Team Leaders such as Hall were responsible for reviewing and signing off on the daily operator
inspection sheets. (See e.g., Ex. C-15, p. 1; Ex. R-3, pp. 1, 2.) Matsu’s own training reports indicate employee
questions should be directed to their supervisor “or team leader.” (See e.g., Ex. C-15, p. 1; C-16, p. 2.) Since Hall
was one of the team leaders responsible for signing off on the daily operator inspection sheets, his statement
regarding the crowder bar safeguard was clearly “within the scope of that relationship and while it existed.”
−27−
“The Secretary can prove employer knowledge of the violation in one of two ways. First,
where the Secretary shows that a supervisor had either actual or constructive knowledge of the
violation, such knowledge is generally imputed to the employer.” ComTran Grp., Inc. v. U.S.
Dep't of Labor, 722 F.3d 1304, 1307-08 (11th Cir. 2013); Georgia Elec. Co. v. Marshall, 595
F.2d 309, 321 (5th Cir.1979). “An example of actual knowledge is where a supervisor directly
sees a subordinate's misconduct.” ComTran Grp., 722 F.3d at 1308. “An example of constructive
knowledge is where the supervisor may not have directly seen the subordinate's misconduct, but
he was in close enough proximity that he should have.” Id. “In the alternative, the Secretary can
show knowledge based upon the employer's failure to implement an adequate safety program . . .
with the rationale being that—in the absence of such a program—the misconduct was reasonably
foreseeable.” Id.
As indicated supra, in response to [redacted] ’s amputation on May 1, 2012, Todd
ordered the crowder bar safeguard to be placed across the point of operation on Press Number 8
and Press Number 10. Therefore, the Court agrees with the Secretary that Matsu had knowledge
of the violative condition since it took steps to address the need for additional guarding on the
presses. (See Sec’y Post Trial Br., pp. 20-21.) As the Secretary states, and the Court agrees, the
“single purpose of the crowder bar was to keep the operator’s body within the detection beam of
the vertical light curtain.” Id. Further, the Secretary also asserts, and the Court agrees, Matsu
knew of the violative condition since the issue of the unguarded points of operation on Press
Number 8 and Press Number 10 had been discussed during company safety meetings prior to
[redacted]’s accident on April 2, 2013. (Id.) In addition, as indicated supra, Matsu admitted to
Vernon that the crowder bar safeguard was bent on the day of the accident and had been bent for
approximately a month prior to the accident. Therefore, the Court concludes the Secretary has
proven Matsu had actual knowledge of the violative condition.
Further, the Court finds Matsu had constructive knowledge of the violative condition.
There is no dispute the crowder bar safeguard had been previously damaged and replaced nor is
there any dispute it was bent after the accident. Vernon testified the maintenance supervisor,
Ernie Sailors, told him the crowder bar safeguard “was a unistrut bar, which means that it's a
lightweight bar that was put in to fill up an area between the mechanical -- between the light
curtains and the point of operation.” (Tr. 315-316; see also Ex. C-32, Tab 13, p. 5.) Even
−28−
assuming arguendo as Matsu asserts, the crowder bar safeguard was not bent prior to
[redacted]’s shift on the evening of his accident, and was bent by either Carter or
[redacted]during the course of their shift on the evening of the accident, given Matsu’s
knowledge the crowder bar safeguard was made of lightweight material and had a propensity to
bend (since it had been previously damaged and replaced), Matsu knew or should have known
the crowder bar safeguard was not capable of providing [redacted]the protection it was intended
for— to keep him within the sensing area of the light curtain. [redacted]’s injuries could have
been prevented had Matsu exercised reasonable diligence and care. ComTran Grp., 722 F.3d at
1316. Therefore, the Court concludes the Secretary has also proven Matsu had constructive
knowledge of the violative condition.
Classification
The Secretary classified the violation as serious. As indicated supra, a serious violation
is one that carries a substantial probability that death or serious physical harm could result.
[redacted]was permanently disabled when the crowder bar safeguard failed to keep him within
the sensing area of the light curtain. Therefore, the violation met the statutory requirement to be
classified as serious. Thus, the Court concludes Item 3 should be affirmed.
Employee Misconduct Defense
Matsu asserts the affirmative defense of unpreventable employee misconduct for Item 3.
“This defense requires the employer to show that it: (1) created a work rule to prevent the
violation at issue; (2) adequately communicated that rule to its employees; (3) took all reasonable
steps to discover noncompliance; and (4) enforced the rule against employees when violations
were discovered.” Eller-Ito Stevedoring, 567 F. App'x at 804. The Commission has also long-
recognized that OSHA’s machine guarding standards were designed to protect employees from
common human errors such as “neglect, distraction, inattention or inadvertence of an operator[.]”
Slyter Chair, Inc., 4 BNA OSHC 1110, 1112 (No. 1263, 1976). “The standard was designed to
provide against such human weaknesses.” Id. “This requirement implicitly recognizes that
human characteristics such as skill, intelligence, carelessness, and fatigue, along with many other
qualities play a part in an individual's job performance, and it avoids dependence on human
conduct for safety.” B.C. Crocker, 4 BNA OSHC 1775, 1777 (No. 4387, 1976). “The plain
purposes of the standard are to avoid dependence upon human behavior and to provide a safe
−29−
environment for employees in the machine area from the hazards created by the machine’s
operation.” Akron Brick & Block Co., 23 BNA OSHC 1876, 1878 (No. 4859, 1976). Thus, the
affirmative defense of employee misconduct applies in situations in which the behavior of the
employee, and not the existence of a violative condition, is at issue.
Here, Matsu created the violative conditions cited in Citation 1, Item 3 by failing to
protect [redacted]from all areas of entry to the press’s point of operation that were not protected
by the light curtain. In Fibres South, Inc., 17 BNA OSHC 1474 (No. 94-2688, 1995) (ALJ), the
company, like Matsu does here, contended the violation was the result of unpreventable
employee misconduct. In that case Judge Brady found that Fibres South demonstrated “a basic
misunderstanding of this affirmative defense. The unpreventable employee misconduct defense
refers to the action or actions of an employee.” Id., 17 BNA OSHC at 1480. “The Secretary did
not cite Fibres South on how its employees were cutting wrap, but for failing to guard the #2
Godet. Regardless of how [the employee] cut wrap, the #2 Godet was unguarded[.]” Id. Thus,
Judge Brady held Fibres South failed to establish this defense.
The Court agrees with Judge Brady’s analysis. Here, as in Fibres South, the Court finds
Matsu demonstrates “a basic misunderstanding of this affirmative defense.” The Secretary did
not cite the company on how its employees were using the cited machines, but rather, cited
Matsu for failing to protect employees from all areas of entry to the press’s point of operation
that were not protected by the light curtain, and like in Fibres South, regardless of how
[redacted]was using Press Number 10, Matsu still failed to “protect all areas of entry to the point
of operation not protected by the presence sensing device” in violation of section
1910.217(c)(3)(iii)(f). Thus, even strict implementation and employee compliance with Matsu’s
purported rules would not have obviated the guarding requirement imposed by the standard.
S&G Packaging Co., LLC, 19 BNA OSHC at 1507-1508. There is no work rule that, if
communicated to employees, would change the fact that Matsu failed to “protect all areas of
entry to the point of operation not protected by the presence sensing device.”
Although Matsu cites to [redacted]’s trial testimony and argues in its brief “[redacted]had
received training how safely to perform hand transfer,” (Post-Trial Br., p. 9; Tr. 216-18), the
Court finds [redacted]was not adequately trained or supervised on the safe operation of
mechanical presses when he was assigned press operator duties. [redacted]’s testimony reveals
−30−
that when he was asked if Ninon gave him “some training on one of those presses right before
[he] started working,” [redacted]testified, “Well, not really no training. She just say to get out
the light curtain.” When asked, “Okay, that wasn’t training? She told you what to do, right?”
[redacted]responded, “She said ‘load this blank, and then she said step back.’” (Tr. 216.)
Matsu also cites Pinchon’s witness statement in support of its assertion [redacted]had
received training how safely to perform hand transfer. (Matsu Post-Trial Br., pp. 8-9, n. 75; see
also Ex. C-29, p. 2.) However, the Court does not find Pinchon’s witness statement probative
and gives it no weight since, unlike other witness statements, it was not made under oath 28 and
was not signed by Pinchon. Further, although Matsu listed Pinchon as a witness it “may” have at
trial, 29 Matsu failed to call Pinchon to testify or make him available for cross-examination, and
this failure to call a witness in its control raises an inference his testimony would be unfavorable
to the company’s position. 30 Capeway Roofing Systems, 20 BNA OSHC at 1342-1343; see also
Regina Contr. Co., 15 BNA OSHC 1044, 1049 (No. 87-1309, 1991).
Matsu also cites to a two page power point presentation given to all new employees as
part of their orientation when hired. (Ex. R-6.) However, as indicated in the Item 4 analysis
infra, Wolfsberger testified the two-minute power point presentation on safety shown during
[redacted]’s orientation was not adequate to train an employee to safely operate a mechanical
press since Wolfsberger had never operated a mechanical press and he was not qualified to train
anyone in press safety. [redacted]was hired by Surge to be a janitor, not a mechanical press
operator. The only work experience [redacted]had prior to working at Matsu’s facility had been
as a cook at a Shoney’s Restaurant for a month or two and as a stocker at a Walmart. (Tr. 115.)
Clearly, and tragically, the training provided to [redacted]was not tailored to the needs of an
28
Above the blank signature line in Pinchon’s purported witness statement is the following statement: “I have read
and had the opportunity to correct this statement and these facts are true and correct to the best of my knowledge and
belief. Public Law 91-596, Paragraph 17(g) makes it a criminal offense to knowingly make a false statement or
misrepresentation in this statement.”). Cf. Ex. C-32, pp. 71-78 (Todd’s statement, which declared “under penalty of
perjury under the laws of the United States of America that this statement is true and correct to the best of, my
knowledge”).
29
See Jt. Proposed Pretrial Order, Attach. F-2, p. 2.
30
Even if the Court were to consider Pinchon’s Job Supervisor’s Report reliable and probative, it does support
Matsu’s assertion “[redacted] chose not to notify Carter that he was going to go back into the point of operation.”
−31−
employee such as [redacted]with virtually no work experience and certainly no experience
working on a mechanical press.
Matsu also asserts that “[redacted]chose not to notify Carter that he was going to go back
into the point of operation as [redacted]was trained.” (Matsu Post-Trial Br., p. 10, n. 90, n. 91)
(citation to footnotes omitted from quote). However, Matsu points to no admission by
[redacted]in the record that he was ever trained “to notify Carter that he was going to go back
into the point of operation.” Further, [redacted]testified he did not have to make Carter aware of
where he was when he pushed the buttons “because we went into the machine at the same time. I
was right beside him,” (Tr. 225), which was corroborated by Matsu’s own post-trial brief, which
admits “Carter was standing next to him.” (Matsu Post-Trial Br., p. 10.)
In support of its assertion that [redacted]was trained, Matsu cites to Wolfsberger’s
testimony. (Matsu Post-Trial Br., p. 10, n. 87, n. 91; Tr. 266, 270.) However, contrary to this
assertion, Wolfsberger actually testified he did not know what training [redacted]received before
he worked on the press. (Tr. 270.) Further, Matsu cites to Vernon’s testimony, which referenced
his deposition, where Vernon was asked whether [redacted]was trained not to reenter the press
after leaving without letting the operator know. In response, Vernon testified “I believe that’s
part of his generic training.” (Id., n. 91; Tr. 802.) However, Vernon’s “belief” is not dispositive
as to whether or not [redacted]actually received such “generic training.”
Although Michael Sebastian, the operator for Press Number 10 on the first shift, received
additional specialized training on different functions of the progress presses before he became an
operator, such as how to load and unload dies as well as loading up the steels and the coils,
[redacted]received no such specialized training. Rather, his only training was from Ninon: “you
turn around and get these blanks out of the bin. Get these blanks out of the bin. You load them
in the machine and you make sure you get back.” (Tr. 141.) Despite [redacted]’s lack of
specialized training, Pinchon admonished [redacted]not to tell anybody that Pinchon had been
putting him on the presses. Thus, Matsu failed to establish this defense.
Item 4, Alleged Violation of Section 1910.217(e)(1)(i)
of the Mechanical Power Presses Standard
The Secretary alleges in Item 4 Matsu committed a serious violation of section
1910.217(e)(1)(i), another provision in the Mechanical Power Presses standard, which mandates
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in relevant part that employers must establish and follow an inspection program having a general
component and a directed component, and under the general component of the inspection
program, employers must:
(A) Conduct periodic and regular inspections of each power press to ensure that
all of its parts, auxiliary equipment, and safeguards, including the clutch/brake
mechanism, antirepeat feature, and single-stroke mechanism, are in a safe
operating condition and adjustment;
(B) Perform and complete necessary maintenance or repair, or both, before
operating the press; and
(C) Maintain a certification record of each inspection, and each maintenance and
repair task performed, under the general component of the inspection program
that includes the date of the inspection, maintenance, or repair work, the signature
of the person who performed the inspection, maintenance, or repair work, and the
serial number, or other identifier, of the power press inspected, maintained, and
repaired.
29 C.F.R. § 1910.217(e)(1)(i) (emphasis added).
The Secretary asserts in Item 4 “[a] program of periodic and regular inspections of
mechanical power press(es) was not established and followed to ensure that all parts, auxiliary
equipment and safeguards were in a safe operating condition and adjustment[.]” Specifically, the
Secretary asserts that on or about April 3, 2013, in the Press Line Room on Presses 10, Matsu
“failed to conduct effective press inspections to ensure all press safety devices and auxiliary
equipment were in safe operating condition and properly adjusted.”
Applicability
Section 1910.217(e)(1)(i) is found in Subpart O—Machinery and Machine Guarding.
Section 1910.217 is captioned “Mechanical power presses.” The Secretary cited a mechanical
power press in the press line room and asserted the crowder bar guard—which clearly was a
“safeguard” within the meaning of the standard—was properly inspected and documented.
Therefore, the Court concludes the cited standard clearly applied to the cited condition. S. Pan
Servs., 25 BNA OSHC at 1085.
Compliance with the Terms of the Standard
The Secretary argues the “OSHA investigation found that respondent performed minimal
pre-shift inspections and utilized general check lists for its mechanical presses. There was no
program that identified or documented that the auxiliary equipment and guard that had been
−33−
added to the presses was being checked.” (Sec’y Post-Trial Br., p. 23.) In support of this
assertion, the Secretary argues Matsu “utilized the same daily inspection sheet with the same
enumerated items, even after adding the crowder bar. As such, employees conducting the
inspections were not given notice to check the additions on the presses.” (Id., p. 24.) Thus, the
Secretary argues that since Matsu’s inspection checklist before and after it added the crowder bar
safeguard were the same, “employees conducting the inspections were not given notice to check
the additions on the presses.” The Court does not agree with the Secretary that these facts alone
establish a violation.
As Matsu argues, and the Court agrees, “OSHA's own [sample] check sheet does not
require a separate category for each safety device nor mandate the use of any magic words.”
(Matsu Post-Trial Br., p.21; see also Ex. R-28, p. 120.) In fact, OSHA’s own sample Inspection
Checklist included in its training program lists “guards” and “presence sensing devices” under a
single category. (Id.) Therefore, the Court does not agree with the Secretary that Matsu was
required to list the crowder bar safeguard separately or that not having done so established
inspections were not done in conformity with the cited standard.
However, as the Court has found supra, the crowder bar safeguard was bent at the time of
the accident and had been bent for approximately a month prior to the accident, and as the
Secretary notes, Wolfsberger testified that he saw the bent crowder bar on the press a few hours
after the accident. Therefore, the Secretary has established Matsu failed to comply with the cited
regulation.
Employee Access to the Violative Condition
Matsu exposed [redacted]to the hazard of entering the danger zone of the press’s point of
operation by failing to implement and follow a program of periodic and regular inspection of
Press Number 10 to ensure that the Crowder bar safeguard was in a safe operating condition. As
indicated supra, [redacted]’s left hand was flattened “like a pancake” and some of his left hand
fingers were amputated by the press. [redacted]’s right was completely crushed by the press and
was eventually amputated to the middle of his forearm. Clearly, [redacted]’s access to the
hazardous condition was established.
Employer Knowledge
−34−
The company’s party admission made by Hall to Vernon that the crowder bar safeguard
was bent at the time of the accident and had been bent for approximately a month prior to the
accident establishes Matsu had knowledge of the violative condition. Therefore, the Court
concludes the Secretary has proven Matsu had actual knowledge of the violative condition.
Classification
The Secretary classified the violation as serious. As indicated supra, a serious violation
is one that carries a substantial probability that death or serious physical harm could result.
[redacted]sustained permanent amputation injuries as a result of Matsu’s failure to properly
inspect the Crowder bar safeguard, which failed to keep [redacted]within the sensing area of the
light curtain. Therefore, the violation met the statutory requirement to be classified as serious.
Thus, the Court concludes Item 4 should be affirmed.
Items 5a and 5b, Alleged Serious Violations of Section 1910.217(f)(2)
of the Mechanical Power Presses Standard
The Secretary alleges in Item 5a and Item 5b Matsu committed a serious violation of
another provision in the Mechanical Power Presses standard, section 1910.217(f)(2), which
requires in relevant part that employers “shall train and instruct the operator in the safe method
of work before starting work on any operation covered by this section. The employer shall insure
by adequate supervision that correct operating procedures are being followed.” Specifically, on
or about April 3, 2013, in the Press Line Room on Presses 10 the Secretary asserts in Item 5a
that, Matsu “failed to properly train and instruct press operators in all the safe methods of manual
transfer for press operations” and in Item 5b Matsu “did not ensure new operators and helpers
were following correct operating procedures for ‘hands in die’ stamping operations.”
Applicability
Section 1910.217(f)(2) is found in Subpart O—Machinery and Machine Guarding.
Section 1910.217 is captioned “Mechanical power presses.” The Secretary cited a mechanical
power press in the press line room. However, Matsu asserts that OSHA recognized that
[redacted]was a helper and not an operator, and that Carter was the Operator. (Tr. 804.) Thus,
Matsu argues section 1910.217(f)(2) did not apply to the cited condition because it “prescribes
only that operators must be trained; it contains no such requirement for others who work on
−35−
presses.” (Matsu’s Post-Trial Br., p. 56) (emphasis in original). The Court finds Matsu’s
argument preposterous.
The day [redacted]was injured, he was clearly the “Operator” of Press Number 10 at the
beginning of the shift since he was “pushing the control button” for approximately four hours
before he switched tasks with Carter. To hold otherwise would run counter to the explicit
purpose of section 2(b) of the Act “to assure as far as possible every working man and woman in
the Nation safe and healthful working conditions.” 29 U.S.C. §651(b). Furthermore, to require
an employer to train employees who operated a mechanical press full-time and have no such
requirement for temporary employees who were required to fill in as operators is absurd. “[T]he
law tries to avoid absurd results.” Cox Enterprises, Inc. v. News-Journal Corp., 794 F.3d 1259 n.
89 (11th Cir. July 22, 2015) (citation omitted). “Interpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations consistent with the legislative
purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982).
Therefore, the Court concludes the cited standard clearly applied to the cited condition. S. Pan
Servs., 25 BNA OSHC at 1085.
Compliance with the Terms of the Standard
The Secretary alleges Matsu failed to “train and instruct” [redacted]“in the safe method
of work before starting” work on the mechanical presses. “To establish noncompliance with a
training standard, the Secretary must show that the cited employer failed to provide the
instructions that a reasonably prudent employer would have given in the same circumstances. See
Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1019-20 (No. 87-1076, 1991); El Paso
Crane and Rigging Co., 16 BNA OSHC 1419, 1424 (No. 90-1106, 1993).” N & N Contractors,
Inc., 18 BNA OSHC 2121, 2126 (No. 96-0606, 2000).
Michael Sebastian was a Surge temporary employee for about a year-and-a-half years,
and has been a Matsu employee for about four years. (Tr. 982-983.) He has been a press
operator for about three years and operated Press Number 10 on the first shift. (Tr. 982, 986.)
He referred to Surge employees as “associates” and differentiated between Operators, who press
the activation buttons for the press, and helpers, who load blanks into the dies of the press. (Tr.
988.) He was not an Operator when he was a Surge employee. (Tr. 984.) While he was
employed by Surge, he “mostly loaded blanks and draws into the press” and “checked parts at
−36−
the end of the press.” (Id.) After he became a Matsu employee, Michael Sebastian was assigned
to operate the mechanical presses and received on-the-job training by the supervisor at the time,
Jason Dugger. (Tr. 983-984.) “There was a lot of training on different functions of the
progressive presses, how to load and unload dies as well as loading up the steels and the coils
and stuff like that.” (Tr. 985) (emphasis added). When he was a Surge associate, he did not fill
out an inspection sheet, and before he became an Operator, he received training related to the
inspection sheet from Chris Hall, his team leader. (Id.)
Michael Sebastian testified he worked on another press for eight months before he
received “kind of a promotion to Press 10.” (Tr. 986.) He stated moving to Press Number 10
was a promotion because it “is a more critical press in the company.” (Tr. 1010, 1013.) Matsu
also provided Michael Sebastian with additional training on how Press Number 10 differed from
the previous press he had worked on. (Tr. 986.) According to Michael Sebastian, Surge
employees were not Operators and were not allowed to operate the press, and on average, about
three months before they were “hired in” by Matsu. (Tr. 988.) Michael Sebastian testified he had
never seen a Surge employee operate the press. (Tr.1010.) The Court credits this portion of his
testimony since it was corroborated by the party admission of Patterson, Matsu’s Human
Resources Manager, that Surge associates were not allowed to operate the press. (Tr. 1081-82.)
In contrast to Sebastian’s gradual introduction to the mechanical presses and his
systematic training on them, [redacted]testified he was pulled from his janitorial duties “maybe a
week or maybe a week-and-a-half into my job” to load blanks into a mechanical press. (Tr. 137.)
[redacted]’s only “training” prior to this assignment consisted of the approximately two-minute
power point presentation Surge’s supervisor showed the three applicants their first day at
Matsu’s facility. (Tr. 237.) Contrary to Sebastian’s and Patterson’s testimony that Surge
employees were not supposed to be operators, [redacted]was in fact the “operator” for the first
half of the shift. (Tr. 154-155, 221.)
[redacted]was the only eyewitness to his accident who testified. In its brief, Matsu
asserts [redacted]“lunged into the point of operation to make a part adjustment,” relying on its
“Supervisor’s Incident Investigation Report,” purportedly prepared by Todd, Matsu’s General
Manager, which placed the blame on [redacted]for his injuries. (Matsu Post-Trial Br., p. 10; Ex.
R-12.) The Court finds no merit in this argument. As indicated supra, [redacted]credibly
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testified he was standing on his “tippy toes” inside the machine at the time of the accident. (Tr.
157.) Significantly, Matsu did not call Carter to testify and Carter was the only other eyewitness
to the accident—he alone could have corroborated the position taken by Matsu in this litigation
and refuted [redacted]’s testimony—yet Matsu elected not to call him as a witness, even though
Matsu listed Cater as a witness it “may” have at trial. Matsu’s failure to call Carter as a witness
raises an inference his testimony would be unfavorable to the company’s position. Capeway
Roofing Systems, 20 BNA OSHC at 1342-1343.
Although Matsu offers Todd’s “Supervisor’s Incident Investigation Report” as evidence
of [redacted]’s culpability, the Court considers this report to be a self-serving document drafted
with the intention of assigning fault for the injury to [redacted], a temporary Surge employee,
and exonerating Carter, Matsu’s employee, who was the operator at the time of the accident and
in control of the press’s cycle. Again, Matsu failed to call to testify its General Manager, Todd,
the purported author of that report. Matsu’s failure to call Todd as a witness raises an inference
his testimony would not support the company’s position, Capeway Roofing Systems, 20 BNA
OSHC at 1342-1343, and thus, Todd’s purported Investigative Report lacks the assurances of
reliability present in [redacted]’s testimony. Regina, 15 BNA OSHC at 1050. The Court
therefore gives little weight to this report and finds the preponderance of evidence establishes
[redacted]did not “lunge” into the point of operation to make a part adjustment, but rather, was
standing on his “tippy toes” inside the machine at the time of the accident.
As to training,—or, in this case, lack of training— significantly, as indicated supra,
Wolfsberger testified the power point presentation on safety shown during [redacted]’s
orientation was not adequate to train an employee to safely operate a mechanical press,
especially since Wolfsberger had never operated a mechanical press and he was not qualified to
train anyone in press safety. Clearly, and tragically, the training provided to [redacted]was not
tailored to the needs of an employee such as [redacted]with no experience working on a
mechanical press. Although Sebastian received additional specialized training before he became
an operator on different functions of the progress presses, such as how to load and unload dies as
well as loading up the steels and the coils, [redacted]received no such training. Wolfsberger
described his surprise when he learned [redacted]was the employee who had been injured on
Press Number 10.
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Wolfsberger: I saw [Pinchon] there and I asked him what happened. He said somebody’s
hands got caught in the press. I asked him who it was, and he said “[redacted].”
Q.: What was your response?
Wolfsberger: “Why in the hell was he on a press?”
Q.: Why would you say that?
Wolfsberger: Because he should not have been on the press. There was no reason for it.
Q.: Why?
Wolfsberger: He was a janitor. He wasn’t trained.
Q.: What did Mr. Pinchon tell you about that?
Wolfsberger: That they were behind and they needed help to get the parts done.
(Tr. 255.) The Court concludes the Secretary has established Matsu failed to adequately train
and instruct [redacted]in the safe use of mechanical presses as cited in Item 5a.
The Secretary also alleges Matsu failed to “insure by adequate supervision that correct
operating procedures [were] being followed.” [redacted]testified that when Hall pulled him from
his regular duties, Hall led him over to the press, made sure he had protective sleeves, gloves,
and glasses, and “then he’d walk off.” (Tr. 151.) [redacted]testified neither Pinchon nor Hall
ever came by to check on him once he was assigned to a press. (Tr. 155-56.) Matsu did not call
either Pinchon or Hall to testify regarding their supervision of [redacted]. The Court infers from
this that the testimony of Pinchon and Hall would fail to support its position that Matsu
adequately supervised [redacted]. The Court concludes the Secretary has established Matsu
failed to adequately supervise [redacted]as cited in Item 5b.
Employee Access to the Violative Condition
Matsu exposed [redacted] to the hazard of entering the danger zone of the press’s point of
operation without adequate safety training or supervision. As indicated supra, [redacted]’s left
hand was flattened “like a pancake” and some of his left hand fingers were amputated by the
press. [redacted]’s right was completely crushed by the press and was eventually amputated to
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the middle of his forearm. Clearly, [redacted]’s access to the hazardous condition was
established.
Employer Knowledge
The Secretary must establish Matsu knew of the violative condition. Because section
1910.217(f)(2) requires the employer to provide safety training and supervision to employees,
employer knowledge is generally established along with employer noncompliance. “The fourth
prong of [the Secretary’s burden of proof]—employer knowledge of the violative condition—
will almost invariably be present where the alleged violative condition is inadequate training of
employees. See e.g., Compass Envtl., Inc. v. OSHRC, 663 F.3d 1164, 1168 (10th Cir. 2011)
(citing e.g., Andrew Elec. Co., 22 BNA OSHC 1593 (No. 08-0103, 2009) (ALJ) (“The standard
at section 1926.21(b)(2) addresses safety training, so the employer necessarily knows whether or
not it instructed each employee in the recognition and avoidance of unsafe conditions....”); Lane
Constr. Corp., 23 BNA OSHC 1097 (No. 09-0348, 2009) (ALJ) (“As the employer, Lane had
actual knowledge of its training program.”)).
An employer's obligation to train is “dependent upon the specific conditions [at the
worksite], whether those conditions create a hazard, and whether the employer or its industry has
recognized the hazard.” W.G. Fairfield Co., 19 BNA OSHC 1233, 1236 (99-0344, 2000).
“Employees must be given instructions on ‘(1) how to recognize and avoid the unsafe conditions
which they may encounter on the job, and (2) the regulations applicable to those hazardous
conditions.’” Capform Inc., 19 BNA OSHC 1374, 1376 (No. 99-0322, 2001) aff'd, 34 F. App'x
152 (5th Cir. 2002) (unpublished) (quoting Superior Custom Cabinet Co., 18 BNA OSHC 1019,
1020 (No. 94-200, 1997)).
Here, although Michael Sebastian received additional specialized training before he
became an operator on different functions of the progress presses, such as how to load and
unload dies as well as loading up the steels and the coils, [redacted] received no such training.
Despite this lack of training, Pinchon admonished [redacted] not to tell anybody that Pinchon
had been putting [redacted] on the presses. The Court finds Matsu “failed to provide the
instructions that a reasonably prudent employer would have given in the same circumstances.” El
Paso Crane & Rigging, 16 BNA OSHC at 1424. The Court concludes the Secretary has
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established Matsu knew or should have known it had failed to adequately train and supervise
[redacted] in the safe method of operating a mechanical press.
Classification
The Secretary classified the violation as serious. As indicated supra, a serious violation
is one that carries a substantial probability that death or serious physical harm could result.
[redacted] was permanently disabled when the crowder bar safeguard failed to keep him within
the sensing area of the light curtain. Therefore, the violations met the statutory requirement to be
classified as serious. Thus, the Court concludes Items 5a and 5b should be affirmed.
Infeasibility of Compliance Defense
In Matsu's Answer, it raised as its fourth affirmative defense, “[t]he means of compliance
prescribed by the applicable standards cited by Complainant would have been infeasible under
the circumstances.” (Answer, p. 3.) In its brief, Matsu asserts Citation 1, Item 5b must be
vacated because “OSHA offers no evidence that its ill-defined proposed level of supervision was
feasible.” The Court finds no merit in these arguments since again, it is Matsu, not the Secretary,
that has the burden of proof on this affirmative defense. As such, in the Eleventh Circuit, Matsu
must prove “(i) that compliance with a particular standard either is impossible or will render
performance of the work impossible; and (ii) that it (the employer) undertook alternative steps to
protect its workers (or that no such steps were available).” M.C. Dean, Inc. v. Sec'y of Labor, 505
F. App'x 929, 936-37 (11th Cir. 2013) (citing Harry C. Crooker & Sons, Inc. v. OSHRC, 537
F.3d 79, 82 (1st Cir.2008)).
Here, Matsu presented no evidence “(i) that compliance with a particular standard either
is impossible or will render performance of the work impossible; and (ii) that it undertook
alternative steps to protect its workers (or that no such steps were available).” Therefore, Matsu
has failed to establish the affirmative defense of infeasibility. Thus, the Court concludes Items
5a and 5b should be affirmed.
Item 6, Alleged Violation of Section 1910.242(b) of the
General Hand and Portable Powered Tools and Equipment Standard
The Secretary alleges in Item 6 Matsu committed a serious violation of section
1910.242(b), a provision in the General Hand and Portable Powered Tools and Equipment
standard, which provides: “[c]ompressed air shall not be used for cleaning purposes except
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where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal
protective equipment.” Specifically, the Secretary asserts that on or about April 24, 2013, in the
Tool and Die Shop Matsu “failed to reduce compressed air nozzles used for cleaning metal parts
to less than 30 p.s.i. Air nozzles were used at 85 p.s.i.”
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Applicability
Section 1910.242(b) is found in Subpart P—Hand and Portable Powered Tools and
Other Hand-Held Equipment. Section 1910.242 is captioned “Hand and portable powered tools
and equipment, general” and subsection (b) refers to “Compressed air used for cleaning.”
Therefore, the Court concludes the cited standard clearly applied to the cited condition. S. Pan
Servs., 25 BNA OSHC at 1085.
Compliance with the Terms of the Standard
During his April 24, 2013, inspection of Matsu’s tool and die shop, Vernon observed an
employee using a drilling machine with an air nozzle next to him. (Tr. 54.4) Tool and die
makers use compressed air from air nozzles to blow away metal chips and shavings produced
during the machining process. (Tr. 543.) Vernon observed the air nozzle appeared to be
modified. (Tr. 542.) He testified, “I took my certified air tester and I tested it to see if it was
going to blow 30 p.s.i. and it read 85 p.s.i.” (Id.) Todd told Vernon in an interview on August
16, 2013, after the inspection he had replaced all of the air nozzles in the tool and die shop
because they had all been modified to above 30 p.s.i. (Tr. 543.) The Court concludes the
Secretary has established Matsu failed to comply with the terms of § 1910.242(b).
Employee Access to the Hazardous Condition
Vernon observed a Matsu tool and die maker using a drilling machine with the
noncompliant air nozzle readily available for use. Todd conceded all of the air nozzles in the
tool and die shop had been modified. Vernon testified the hazard created by using compressed
air for cleaning that was higher than 30 p.s.i. is that metal chips and shavings could be blown
into an employee’s hands, face and eyes. (Tr. 545.) Therefore, the Court concludes the Secretary
has established Matsu’s tool and die makers had access to compressed air used for cleaning that
had not been reduced to less than 30 p.s.i.
Employer Knowledge
Matsu contends the Secretary failed to establish the company knew the air nozzle Vernon
tested exceeded the allowable p.s.i. Specifically, Matsu argues “OSHA never had any evidence
that Matsu was aware of the nozzle’s existence—let alone that Matsu used it on a hose for
cleaning with compressed air. OSHA did not even offer evidence concerning how long the
nozzle had been on Matsu’s premises.” (Matsu’s Post-Trial Br., p. 63.) The Court does not
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agree. Although the Secretary adduced no evidence Matsu had actual knowledge its tool and die
makers were using noncompliant air nozzles, the record clearly established Matsu had
constructive knowledge because it could have known of the violative condition with the exercise
of reasonable diligence.
On August 16, 2013, Vernon interviewed Todd and when Vernon asked Todd if they
replaced any air nozzles as a result of them being defective, Todd admitted they replaced ten.
(Tr. 543.) Since Tate was Matsu’s tool room supervisor, he was present in the tool room on a
daily basis where modified air nozzles were in plain sight. Vernon was able to tell the air nozzle
he tested was modified just by looking at it. (Tr. 542.) Todd stated that when he checked the air
nozzles in the tool room, every one of them (“at least 10”) had been modified. The uniformity of
the modifications suggests it was the tool and die makers’ standard practice to increase the p.s.i.
of the air nozzles. With the exercise of reasonable diligence, Tate, Matsu’s supervisor, should
have observed and abated the modifications.
[T]he conspicuous location, the readily observable nature of the violative
condition, and the presence of [the employer’s] crews in the area warrant a
finding of constructive knowledge.” Kokosing Constr. Co., 17 BNA OSHC 1869,
1871 (No. 92-2596, 1996). Additionally, constructive knowledge may be found
where a supervisory employee was in close proximity to a readily apparent
violation. Hamilton Fixture, 16 BNA OSHC [at 1089].
KS Energy Services, Inc., 22 BNA OSHC 1261, 1265-1266 (No. 06-1416, 2008). Therefore,
Tate’s constructive knowledge of the use of the noncompliant air nozzles is imputed to Matsu.
ComTran Grp., 722 F.3d at 1307; Access Equip. Sys., 18 BNA at 1726. Thus, the Court
concludes the Secretary has established Matsu had constructive knowledge of its noncompliance
with section 1910.242(b).
Classification
The Secretary classified the violation as serious. As indicated supra, a serious violation
is one that carries a substantial probability that death or serious physical harm could result.
Since the use of compressed air exceeding 30 p.s.i. may blow metal chips and shavings into an
employee’s exposed skin and eyes, resulting in cuts or serious eye injuries, Item 6 was properly
classified as serious. Therefore, the Court concludes Item 6 should be affirmed.
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B. Alleged Repeated Violation
Section 17(a) of the Act provides that any employer who “repeatedly violates the
requirements of section 5 of the Act, any standard, rule or order promulgated pursuant to section
6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of
not more than $70,000 for each violation, but not less than $5,000 for each willful violation.” 29
U.S.C. §666(a). “Congress, unfortunately, did not define the term ‘repeatedly.’” Bunge, 638
F.2d at 836. However, a Commission majority finally construed “repeatedly” in Potlatch Corp.,
7 BNA OSHC 1061, 1063 (No. 16183, 1979), where it held that a violation was repeated if, “at
the time of the alleged repeated violation, there was a Commission final order against the same
employer for a substantially similar violation.” See also Deep S. Crane & Rigging Co., 23 BNA
OSHC 2099, 2106 (No. 09-0240, 2012), aff'd Deep S. Crane & Rigging Co. v. Harris, 535 F.
App'x 386 (5th Cir. 2013).
The Eleventh Circuit held a violation is “repeated” for purposes of 29 U.S.C. §666(a) if
“(1) the same standard has been violated more than once and (2) there is a ‘substantial similarity
of violative elements’ between the current and prior violations” and further, “[t]he prior citation
on which the repeat violation is based must have become a final order of the Commission.” D &
S Grading Co. v. Sec’y of Labor, 899 F.2d 1145, 1147 (11th Cir. 1990) (citing Bunge, 638 F.2d
at 837). “Once substantial similarity is shown, the burden shifts to the employer to disprove
substantial similarity or prove any affirmative defense it may have.” Id., 899 F.2d at 1148 (citing
Bunge, 638 F.2d at 838).
Citation 2, Item 1, Alleged Violation of
Section 1910.212(a)(1) of the Machine Guarding Standard
Under section 1910.212(a)(1), the Secretary is required “to prove that a hazard within the
meaning of the standard exists in the employer's workplace.” Buffets, Inc., 21 BNA OSHC 1065,
1065 (No. 03-2097, 2005) (citing ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1147 (No.
88-1250, 1993) (citing Armour Food Co., 14 BNA OSHC 1817, 1821 (No. 86-247, 1990)), rev'd
on other grounds, 2 F.3d 653 (8th Cir. 1994)). Specifically, the Secretary “must show that
employees are in fact exposed to a hazard as a result of the manner in which the machine
functions and is operated.” Id. (citing Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1421 (No.
89-553, 1991)). The mere fact that it is not impossible for an employee to come into contact with
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the moving parts of a particular machine does not, by itself, prove that the employee is exposed
to a hazard. Armour Food, 14 BNA OSHC at 1821.
The Secretary alleges in Citation Number 2, Item 1 Matsu committed a repeat violation
of section 1910.212(a)(1), a provision in the Machine Guarding standard, which mandates,
“[o]ne or more methods of machine guarding shall be provided to protect the operator and other
employees in the machine area from hazards such as those created by point of operation, ingoing
nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier
guards, two-hand tripping devices, electronic safety devices, etc.” Specifically, the Secretary
asserts that on or about April 24, 2013, in the tool and die shop, there was no machine guard to
protect employees from the point of operation on the (a) RD-1600 Sharp Radial Arm Drill, (b)
Takang Turret Milling Machine, (c) Sharp Milling Machine, and (d) Sharp-KMA Milling and
Drilling Machine.
Applicability
Section 1910.212(a)(1) is found in Subpart O—Machinery and Machine Guarding.
Section 1910.212 is captioned “General requirements for all machines.” This standard applies to
machines used in metal manufacturing. Oberdorfer Indus., 20 BNA OSHC at 1321. Citation
Number 2, Item 1 cites four instances of machines that were not equipped with guards for their
points of operation. Therefore, where such machines expose employees to injury, the machines
must be equipped with a guard. 29 C.F.R. § 1910.212(a)(l). Thus, the Court concludes the cited
standard applied to the cited conditions. S. Pan Servs., 25 BNA OSHC at 1085.
Compliance with the Terms of the Standard
Vernon learned that on April 19, 2013, Matsu tool and die maker [redacted] sustained an
amputation while using the Sharp Radial Arm Drill Press in the tool and die shop. Matsu’s
Supervisor Incident Investigation Report stated:
[redacted] was working on a drill press tapping the threads on a die he was
working on. Mr. [redacted] reached for something inside the work area. He was
wearing gloves which is against procedure. As he reached inside of the work area
the backside of his glove became caught on the tap in the spindle.31 The spindle
twisted the glove and in turn wrapped his left hand around the tap backwards
31
At trial, Matsu referred to it as “the rotating chuck or spindle.” (Tr. 734.)
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causing severe trauma to the left thumb and middle fingers. [redacted] was taken
to Huntsville Hospital where he underwent surgery to repair his left hand.
(Tr. 658; Ex. C-20.) Vernon inspected Matsu’s tool and die shop on April 24, 2013, and
observed the four cited machines were not guarded. (Ex. C-19; Tr. 625.) Specifically, while
Vernon was inspecting the tool and die area, he observed some of the machines were set up with
a chuck. (Tr. 658.) When Vernon asked if the machines had guards for the rotating parts, he was
told they did not. (Id.) Vernon took photographs of the cited machines. 32 In all of the
photographs, the unguarded rotating chucks or spindle were visible. Therefore, the Court
concludes the Secretary established Matsu failed to guard the rotating parts of the cited
machines.
Employee Access to the Hazardous Condition
Section 1910.212(a)(1) is a general standard. It applies generally to protect employees
who are exposed to point-of-operation hazards. Unlike specific standards, the Secretary must
show that the hazard addressed by the general standard existed. Con Agra Flour Milling Co., 16
BNA OSHC 1137, 1147 (No. 88-1250, 1993). The two seminal Commission cases that are
relevant to the Court’s inquiry here are Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470,
1980), and Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). Gilles & Cotting
addressed the general question of employee exposure to hazards. Rockwell addressed the specific
question of employee exposure arising from the actual operation of a machine.
In Gilles & Cotting, the Commission set forth a test for employee exposure based on the
principle of “reasonable predictability.” 3 BNA OSHC at 2003. The Commission held that the
Secretary bore the burden of proving “that employees either while in the course of their assigned
working duties, their personal comfort activities while on the job, or their normal means of
ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger.” Id. 33
In Rockwell, the Commission set forth the standard of employee exposure to hazards presented
32
Pages 3 and 4 of Ex. C-19 show the RD-1600 Sharp Radial Arm Drill, cited in Instance (a). Pages 5 and 6 of Ex.
C-19 show the Takang Turret Milling Machine, cited under Instance (b). Pages 7 and 8 of Ex. C-19 show the Sharp
Milling Machine, cited under Instance (c) (page 8 shows a Matsu employee using the unguarded machine). Pages 9
and 10 of Ex. C-19 shows the KMA-3 Sharp-KMA Milling and Drilling Machine, cited under Instance (d).
33
See also Phoenix Roofing Inc., 17 BNA OSHC 1076, 1078 n. 6 (No. 90–2148, 1995); Carpenter Contracting
Corp., 11 BNA OSHC 2027, 2029–31 & n. 3 (No. 81–838, 1984); Otis Elevator Co., 6 BNA OSHC 2048, 2050
(No. 16057, 1978).
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by the employee's operation of a machine. The Commission stated: “The mere fact that it was not
impossible for an employee to insert his hands under the ram of a machine does not itself prove
that the point of operation exposes him to injury.” 9 BNA OSHC at 1097–98. “Whether the
point of operation exposes an employee to injury must be determined based on the manner in
which the machine functions and how it is operated by the employees.’ Id.
Here, the danger zone was where “the rotating parts are or the part is— the part that's
being manipulated.” (Tr. 660.) Vernon testified employees using the machines had access to the
rotating parts, and when they were turned on and rotating, could be exposed to the rotating parts
resulting in lacerations, fractures, and amputations. (Tr. 653, 659.) They were also exposed to
the hazards of metal shavings flying off from the drilled material. (Tr. 628.) Vernon observed an
employee using the Sharp Milling Machine cited in instance (c) of Citation 2, Item 1. (Tr. 662-
663.) The employee was using the machine to drill a piece of metal stock. (Tr. 663, 669-671; see
also C-19, p. 6.) The machine did not have a guard in place or a guard available for use at the
time it was being used and the employee was not wearing eye protection. (Tr. Vol. III, pp. 662-
663; see also Ex. C-l9, p. 6.)
Matsu argues the Secretary failed to prove employees actually were exposed to hazards
created by the rotating parts of the cited machines. (Matsu Post-Trial Br., p. 26.) In support of
this position, Matsu relies on Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1422 (No. 89-553,
1991). (Matsu Post-Trial Br., p. 65.) In Jefferson Smurfit, the Commission held in order for the
Secretary to meet his burden, he “must do more than show that it may be physically possible for
an employee to come into contact with the unguarded machinery in question.” However, the
present case is distinguishable from Jefferson Smurfit since here, the Secretary did do more— he
proved, and Matsu does not dispute, that [redacted] was actually injured when he came into
contact with the Sharp Radial Arm Drill Press. Had Matsu properly guarded that machine,
[redacted] would not have had access to the zone of danger.
Under Commission precedent, the Secretary must show either that Matsu’s employees
were actually exposed to the violative condition or that it is “reasonably predictable by
operational necessity” that “employees have been, are, or will be in the zone of danger.” S&G
Packaging Co., LLC, 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (emphasis added) (citing
Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citing Gilles &
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Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976)). Therefore, as to the Sharp Radial
Arm Drill Press, the Secretary has established actual exposure to the violative condition cited
condition.
As to the remaining three cited machines, employee entry into the zone of danger may
also be reasonably predictable when such entry occurs by “unsafe operating procedures, poor
training, or employee inadvertence” and “carelessness.” H. B. Zachry Co. (Int'l), 8 BNA OSHC
1669, 1674 (No. 76-2617, 1980) (citations omitted). Here, all of the alleged violations were
grouped together “because they were substantially similar,” in that “they all operated as a drill—
they had a drill capacity to them,” and the hazard was the same, “there were rotating parts . . . the
rotating spindle or the rotating drill bit or the rotating auger or the rotating chuck.” (Tr. 652-653,
659.) Employees using the cited machines would be doing precise work. (Tr. pp. 659.) The
machines were used by the tool and die maintenance employees as needed in order to fix other
machines, fixtures, or parts necessary to continue production. (Tr. pp. 668, 671-672.)
As such, the tool and die maintenance employees would use the cited machines to work
on parts, fixtures, or stock varying in size from very large to very small. (Tr. pp. 668, 671-672;
see also Ex. C-21.) When working on small parts, the employees would necessarily be in close
proximity to the rotating chucks and spindles in order to perform the required tasks. (Tr. pp.
659.) This close work increased the hazard of being pulled into the machines. (Tr. pp. 659.)
Tarwater testified he worked with pieces of parts that were 12 inches or less with the
drilling and milling machines in the die shop and on those smaller pieces, in order to do his job,
“You'd have to be right there with it. . . . 6 or 8 inches” to the rotating chuck or the rotating
spindles. (Tr. 94.) Since all of the cited machines operated as a drill, it was reasonably
predictable at the time of Vernon’s inspection—as evidenced by [redacted] ’s accident during the
week previous to the inspection, that Matsu’s employees have been, are, or will enter into the
zone of danger “by operational necessity” or as the result of “unsafe operating procedures, poor
training, or employee inadvertence” and “carelessness.” Therefore, the Secretary has established
the element of exposure as to all four cited machines.
Matsu asserts [redacted] “was not performing any task remotely related to normal
operation.” (Matsu Post-Trial Br., p. 66.) However, Matsu offers no probative evidence in
support of this assertion. Rather, Matsu cites in part to Vernon’s testimony, which does not
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support its position. (Id., n. 477; see also Tr. 729.) Matsu could have, but did not, call Mitchel to
testify as to whether he was “performing any task remotely related to normal operation.”
Significantly, Matsu also relies on its Supervisor’s Incident Investigation Report prepared by
Tate after [redacted] ’s accident, which did not indicate [redacted] violated company policy by
“reaching for something inside of the work area.” (Ex. C-20.) Matsu’s failure to call Tate as a
witness raises an inference his testimony would not support Matsu’s position that [redacted] was
“not performing any task remotely related to normal operation.”
Clint Davis testified that although he was there the day of the accident, he did not witness
the accident. (Tr. 962.) The only other evidence of record is the report itself, which indicated
[redacted] was “performing regular duties at the time of the incident.” (Ex. C-20.) The Court
therefore finds the preponderance of evidence establishes [redacted] was “performing regular
duties at the time of the incident” that were “reasonably predictable by operational necessity.”
Even assuming arguendo Matsu assertion is accurate that [redacted] “was not performing any
task remotely related to normal operation,” then the accident was the result of either “unsafe
operating procedures, poor training, or employee inadvertence” and “carelessness.” Either way,
the Court concludes the Secretary has established the element of exposure. Because the Court
finds that the unguarded points of operation of the cited machines exposed employees to injury
contrary to section 1910.212(a)(1), the Secretary has satisfied his burden of proof.
Employer Knowledge
As indicated supra, when Vernon took photographs of the cited machines, the unguarded
rotating chucks or spindle were clearly visible. Matsu does not dispute that it had previously
been cited for violating the same standard and that the prior citation had become a final order and
offered no evidence to rebut the Secretary's prima facie showing of similarity. Therefore, the
Court concludes the Secretary has established Matsu had actual knowledge of its noncompliance
with section 1910.212(a)(1).
Repeat Classification
On October 30, 2010, OSHA conducted an inspection at Matsu’s Huntsville, Alabama
facility. (Ex. C-18, p. 8.) During that inspection, the Compliance Safety and Health Officer
observed that a drill press located in the maintenance shop was not provided with a guard so as to
protect the operator from the rotating chuck and bit. (Id.) Matsu was issued a citation for
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violating 29 C.F.R. 1910.212 (a)(1). (Id.) On June 8, 2011, Matsu and the Secretary entered into
a settlement agreement reducing the violation to an other-than-serious violation of the Act, which
became a final order of the Commission on August 8, 2011. (Id., pp. 11-16, 19.)
Matsu argued at trial this item cannot be a repeat because in the settlement agreement the
previous citation for this violation was reduced to nonserious. The Court does not agree. The
classification of the prior violation is immaterial to the determination of whether the present
violation is properly classified as repeat. By way of example, in three separate Commission
cases involving repeat violations, each Judge affirmed the repeat violation, when the prior “other
than serious” violation became a final order of the Commission.
In Hubbard Constr. Co., 24 BNA OSHC 1689 (No. 11-3022, 2013)(ALJ), like the
present case, the parties settled the prior citation as an “other than serious” violation through an
informal settlement agreement, which became a final order of the Commission. Despite the
different classifications, since the prior and present violations were of the same standard, Judge
Coleman affirmed the present violation as a repeat violation. Likewise, in KS Energy Serv. Inc.,
23 BNA OSHC 1484 (No. 09-1272, 2011) (ALJ), Judge Loye affirmed a repeat violation where
the parties settled the prior citation as an “other than serious” violation through an informal
settlement agreement, which became a final order of the Commission. In Beverly Enterprises-
Alabama, Inc., 19 BNA OSHC 1365 (No. 00-1357, 2001) (ALJ), Judge Spies also affirmed a
repeat violation where the prior “other than serious” violation was not contested and became a
final order of the Commission.
Although the Court is not bound by these decisions, it agrees with them. 34 The Court
concludes when an employer violates the same standard more than once, it is properly
considered a repeat violation if there is substantial similarity of violative elements and the prior
violation has become a final order of the Commission, even when the prior final order of the
Commission affirmed a violation as other-than-serious. Thus, the violation was properly
classified as a repeated violation.
34
See KS Energy Serv. Inc., 23 BNA OSHC 1483 (No. 09-1272, 2011) (citing Leone Constr. Co., 3 BNA OSHC
1979, 1981 (No. 4090, 1976)) (finding that unreviewed administrative law judge decision does not constitute
binding precedent for the Commission).
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Employee Misconduct Defense
In Matsu’s brief, it argues Citation 2 Item 1 must be vacated because Matsu can prove
unpreventable employee misconduct. (Matsu Post-Trial Br., p. 63.) Specifically, Matsu asserts
[redacted] “violated a rule forbidding gloves and his glove was caught by the chuck when he
grabbed it.” (Id., p. 66.) Matsu again relies on its “Supervisor’s Incident Investigation Report”
prepared by Tate after [redacted] ’s accident, also not called by Matsu to testify, which stated
[redacted] violated policy by wearing gloves. (Ex. C-20.) However, this statement is
corroborated by Patterson’ testimony that [redacted] violated the company’s policy by wearing
gloves. (Tr. 1077-78.) Nonetheless, the cited standard requires physical guarding of hazards.
Collator Corp., 3 BNA OSHC 2041 (No. 2004, 1976).
As indicated supra, the affirmative defense of employee misconduct applies in situations
in which the behavior of the employee, and not the existence of a violative condition, is at issue.
As noted above, operation of the machines placed employees within the zone of danger. Here,
however, Matsu created the violative conditions cited in Citation 2, Item 1 by failing to guard the
points of operation for the four cited machines. And once again, the Court finds Matsu
demonstrates “a basic misunderstanding of this affirmative defense.” The Secretary did not cite
Matsu on how its employees were using the cited machines, but rather, cited Matsu for failing to
guard them and regardless of how Matsu’s employees were using the cited machines, the
machines were still unguarded in violation of section 1910.212(a)(1). Thus, even strict
implementation and employee compliance with Matsu’s rules would not have obviated the
guarding requirement imposed by the standard. S&G Packaging Co., LLC, 19 BNA OSHC at
1507-1508. There is no work rule that, if communicated to employees, would change the fact
that Matsu failed to properly guard the machines. Thus, Matsu failed to establish this defense.
Infeasibility of Compliance Defense
In its brief, Matsu argues Citation 2, Item 1 must be vacated because “OSHA must be
expected to prove that compliance is feasible.” (Matsu Post-Trial Br., pp. 60, 69.) Again, the
Court finds no merit in this argument. Section 1910.212(a)(1) “has been recognized by the
Commission as a performance standard, and as such the standard requires that the employer
exercise a certain degree of judgment in evaluating whether its machinery is in compliance with
the standard and what types of guarding methods would be appropriate to achieve compliance.”
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Hamilton Die Cast, Inc., 11 BNA OSHC 2169, 2172 (No. 79-1686, 1984) (citing Stacey
Manufacturing Co., 10 BNA OSHC 1534 (No. 76-1656, 1982); George C. Christopher & Son,
Inc., 10 BNA OSHC 1436 (No. 76-647, 1982).
As indicated supra, Matsu, not the Secretary, has the burden to prove this affirmative
defense, Pitt-Des Moines, Inc., 16 BNA OSHC at 1433, and was required to show that the means
of compliance set forth in the standard were infeasible and that there were no feasible alternative
means of protection. M.C. Dean, 505 F. App'x at 936-37; V.I.P. Structures, Inc., 16 BNA OSHC
at 1874. The standard indicates “[e]xamples of guarding methods are—barrier guards, two-hand
tripping devices, electronic safety devices, etc.” 29 C.F.R. §1910.212(a)(1). Matsu failed to
show why equipping the four cited machines with guards for their points of operation was not
feasible and failed to show that there were no feasible alternative means of
protection. Therefore, Matsu has again failed to establish the affirmative defense of
infeasibility. Thus, the Court concludes Citation Number 2, Item 1 should be affirmed.
C. Alleged Other-Than-Serious Violation
As to an other-than-serious violation, “[w]here the Secretary does not allege, nor is there
evidence to support a conclusion that there was a substantial probability that the violation could
have resulted in death or serious physical harm, the violation is properly characterized “as other-
than-serious.” See Trinity Indus. Inc., 15 BNA OSHC 1579, 1588 (Nos. 88-1545, 88-1547,
1992), rev'd and remanded by Reich v. Trinity Indus., Inc., 16 F.3d 1149 (11th Cir. 1994)
(holding the Commission improperly applied the test for a “willful” violation). Thus, a violation
is considered other-than-serious when “there is a direct and immediate relationship between the
violative condition and occupational safety and health, but not of such relationship that a
resultant injury or illness is death or serious physical harm.” Crescent Wharf and Warehouse
Co., 1 BNA OSHC 1219, 1222 (No. 1, 1973).
Citation 3, Item 1, Alleged Violation of Section 1904.29(b)(3)
of the Recordkeeping and Reporting Occupational
Injuries and Illnesses Standard
The Secretary alleges in Citation Number 3, Item 1 Matsu committed an other-than-
serious violation of section 1904.29(b)(3), which requires employers to “enter each recordable
injury or illness on the OSHA 300 Log and 301 Incident Report within seven (7) calendar days
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of receiving information that a recordable injury or illness has occurred.” Specifically, the
Secretary asserts that on or about April 24, 2013, Matsu “failed to record an amputation lost time
accident for a temporary employee supervised by Matsu Alabama on the OSHA 300 Log within
7 days.”
Applicability
Section 8(c)(1) of the Act requires all employers to keep such records as the Secretary of
Labor and the Secretary of Health, Education, and Welfare might require by regulation. 29
U.S.C. §657(c)(1). Section 8(c)(2) of the Act requires the Secretaries of the two departments to
prescribe regulations requiring employers to keep records of work-related injuries and illnesses.
29 U.S.C. §657(c)(2). The Secretary’s cited regulation, section 1904.29(b)(3), is part of his
Recording and Reporting Occupational Injuries and Illnesses standard found in Subpart C of
Part 1904, which sets out its scope in a “Note to Subpart B,” that “All employers covered by the
Occupational Safety and Health Act (OSH Act) are covered by these Part 1904 regulations.”
Therefore, the Court concludes the cited standard clearly applied to the cited condition.
Compliance with the Terms of the Standard
[redacted] sustained amputation and crushing injuries to his hands on April 2, 2013, at
Matsu’s facility. His injuries resulted in “medical treatment beyond first aid,” and in his inability
to perform any work for the foreseeable future. (Tr. 202-203.) Matsu stipulated it did not record
[redacted]’s injuries on its OSHA 300 Log within seven days of the accident. (Tr. 552.) Based
upon these undisputed facts, the Secretary asserts he has established Matsu violated section
1904.29(b)(3). Matsu argues it was not required to record [redacted]’s injuries because Surge
employed [redacted]. The Court does not agree with Matsu.
Matsu contends it had agreed verbally with Surge that each company would record
injuries on the OSHA 300 Log for its own employees. Patterson testified he and Surge vice-
president Melissa Chapman worked out an arrangement whereby each company kept a separate
OSHA 300 Log for its employees. (Tr. 1052, 1069.) In its brief, Matsu cites to a November 21,
2012, Standard Interpretation Letter purportedly issued by the Secretary and argues “[t]he
foregoing forecloses the citation, which must be vacated.” (Matsu Post Trial Br., p. 71 n. 511.)
However, any reliance by Matsu on this purported Standard Interpretation Letter was misplaced.
First, this interpretation letter referenced in Matsu’s brief is not in evidence since Matsu failed to
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tender a copy as an exhibit at trial, failed to attach it to his brief, and failed to move the Court to
take judicial notice of it. See Fed. R. Evid. 201(c)(2). Like the Secretary, Matsu apparently
assumed the Court would simply take judicial notice of the cited interpretation letter. However,
the Court declines to do so since Matsu, like the Secretary, had ample opportunity at trial to
present any evidence it felt was relevant. Article II Gun Shop Inc., 16 BNA OSHC at 2036.
More importantly, as indicated infra, the meaning of section 1904.31(b)(2) is clear and does not
require administrative interpretation by the Secretary.
The Court recognizes “that an agency's construction of its own regulations is entitled to
substantial deference,” Georgia Pac. Corp. v. OSHRC, 25 F.3d 999, 1004 (11th Cir. 1994)
(quoting Martin v. OSHRC, 499 U.S. 144, 150 (1991)), if the Secretary’s interpretation is
“consistent with the regulatory language and is otherwise reasonable.” Id.; Martin, 499 U.S. at
156 (emphasis in original); Brock, 832 F.2d at 569-70. However, “under the well-known
principles enunciated in Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-43 (1984), we
first examine the language of the standard and then, if necessary, the available legislative history,
to determine the standard’s meaning.” Nooter Constr. Co., 16 BNA OSHC 1572, 1574 (No. 91-
237, 1994) (emphasis added).
Section 1904.31(b)(2), another provision in the Recordkeeping and Reporting
Occupational Injuries and Illnesses standard, provides that if an employer “obtain[s] employees
from a temporary help service, employee leasing service, or personnel supply service,” the
employer “must record these injuries and illnesses if [the employer] supervise[s] these
employees on a day-to-day basis.” 29 C.F.R. § 1904.31(b)(2). It also indicates that “the
personnel supply service, temporary help service, employee leasing service, or contractor” is not
required to record the injuries or illnesses occurring to temporary, leased or contract employees
that “[the employer] supervise[s] on a day-to-day basis.” 29 C.F.R. § 1904.31(b)(4). Further,
“the temporary help service, employee leasing service, personnel supply service, or contractor
should coordinate [with the employer’s] efforts to make sure that each injury and illness is
recorded only once: either on [the employer’s] OSHA 300 Log (if the employer] provide[s] day-
to-day supervision) or on the other employer’s OSHA 300 Log (if that company provides day-to-
day supervision).” Id.
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The meaning of section 1904.31(b)(2) is clear and does not require administrative
interpretation by the Secretary. The record reflects Matsu carried on the day-to-day supervision
of [redacted] and under section 1904.31(b)(2), Matsu, not Surge, was required to comply with
the cited provision of the standard. Therefore, the Court concludes the Secretary established
Matsu failed to comply with the cited provision.
Employee Access to the Violative Condition
Commission precedent has established that the Secretary need not prove harm to any
particular employee resulting from a recordkeeping violation since the recordkeeping
requirements of the Act “play a crucial role in providing the information necessary to make
workplaces safer and healthier.” Kaspar Wire Works, 18 BNA OSHC at 2178 (citing General
Motors Corp., 8 BNA OSHC 2036, 2041 (No. 76-5033, 1980)). “[A] requirement that the
Secretary demonstrate exposure of employees to a hazard is not appropriate in cases dealing with
recordkeeping regulations. . . . Recordkeeping regulations . . . are not intended to eliminate an
existing and identified hazard in a particular workplace. . . . [T]hey are promulgated pursuant to
a different section of the Act, section 8, which mandates that the Secretary prescribe
recordkeeping and reporting requirements for work-related injuries and illnesses and authorizes
the Secretary to make other provisions as the Secretary deems necessary for the implementation
of the Act.” Thermal Reduction Corp., 12 BNA OSHC 1264, 1268 (No. 81-2135, 1985).
Therefore, “the Secretary need not prove harm to any particular employee resulting from a
violative record, to establish a violation.” Gen. Dynamics Corp., 15 BNA OSHC 2122, 2132 n.
17 (No. 87-1195, 1993).
Employer Knowledge
In the context of recordkeeping violations, the Secretary must show that the employer
knew, or with the exercise of reasonable diligence could have known, of the errors and omissions
during the limitations period.” Gen. Dynamics, 15 BNA OSHC at 2132 n. 16. Here, Matsu
admits that it was aware of the Act's recordkeeping requirements (Tr. 552.) Matsu was also
aware that [redacted] suffered a serious, recordable injury while working on a mechanical power
press at its Huntsville plant. (Ex. C-26.) Matsu was also aware that Surge did not have any
supervisors present on the third shift and that Surge employees working on that shift were
supervised by Matsu on a day-to-day basis. (Tr. pp. 138-139, 143-144, 252-253, 594-596.)
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Significantly, Vernon met with representatives from Matsu and Matsu’s counsel on April
3, 2013, and informed Matsu that as the employer supervising and directing [redacted]'s day-to-
day work, it had the responsibility to record his injury. (Id.) Despite this assistance and
information, Vernon discovered that Matsu had not recorded [redacted]'s injury on its OSHA 300
Log when he returned to the Matsu facility on April 24, 2014. (Id.; Ex. C-25.) Therefore, the
Court concludes the Secretary has established Matsu had actual knowledge of its noncompliance
with section 1904.29(b)(3). Further, with the exercise of reasonable diligence Matsu could have
known of the omissions during the recording period.
Classification
An “other-than-serious” violation is different from a “de minimis violation,” which
according to the Commission, “has no direct or immediate relationship to safety or health.”
Holly Springs Brick & Tile Co., 16 BNA OSHC 1861, 1865 (No. 90-3312, 1994). Violations
have been classified as de minimis when the Commission has found that the violations were so
‘trifling’ that the entry of an abatement order or the assessment of a penalty was inappropriate.
General Motors, 8 BNA OSHC at 2041 (citing Continental Oil Co., 7 BNA OSHC 1432 (No.
13750, 1979), and cases cited therein). In addition to a technical noncompliance with a standard,
a de minimis violation is one “which the departure from the standard bears such a negligible
relationship to employee safety as to render inappropriate the assessment of a penalty or the
entry of an abatement order.” Erie Coke Corp., 15 BNA OSHC 1561, 1571 (No. 91-3606, 1992).
However, the reporting requirements of the Act “cannot be properly classified as de
minimis, for to do so would weaken significantly the reporting requirements of the Act and the
Secretary’s regulations.” General Motors, 8 BNA OSHC at 2041. Since the Secretary does not
allege, nor is there evidence to support a conclusion that there was a substantial probability that
the violation could have resulted in death or serious physical harm, the recordkeeping violation
was properly characterized as “other-than-serious.” Thus, the Court concludes Citation Number
3, Item 1 should be affirmed.
IV. PENALTY DETERMINATION
“The Commission has the exclusive authority to assess penalties once a proposed penalty
is contested.” Chao v. OSHRC, 401 F.3d 355, 376 (5th Cir. 2005) (citation omitted). The
Commission is to “giv[e] due consideration to the appropriateness of the penalty with respect to
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[1] the size of the business of the employer being charged, [2] the gravity of the violation, [3] the
good faith of the employer, and [4] the history of previous violations.” 29 U.S.C. § 666(j).
“These factors are not necessarily accorded equal weight....” Chao v. OSHRC, 401 F.3d at 376
(citing J.A. Jones Constr., 15 BNA OSHC at 22016). “Gravity of violation is the key factor.”
See id. The Court has considered Matsu’s size, history of violations, and good faith, but finds
the gravity of the serious and repeated violations warrant the assessment of the maximum
penalties, even if Matsu rated “perfect marks on the other three criteria.” Nacirema Operating
Co., Inc., 1 BNA OSHC 1001, 1003 (No. 4, 1972).
Further, any basis for giving good faith effect to reduce the penalty is diminished by
Matsu’s “failure to adequately prepare and train” [redacted], an inexperienced employee, “which
demonstrates a lack of good faith.” MEI Holdings, Inc. 18 BNA OSHC 2025, 2029 (No. 96-740,
2000). See also Gen. Motors, 22 BNA OSHC at 1048 (giving no credit for good faith when
management tolerated and encouraged hazardous work practices); Access Equipment Systems,
Inc., 18 BNA OSHC 1718, 1728-29 (No. 95-1449, 1999) (no reduction for good faith where
there was evidence for and against good faith); Hern Iron Works, Inc., 16 BNA OSHC 1619,
1625 (No. 88-1962) (lack of good faith as a significant factor in penalty assessment).
Likewise, with respect to the “history of prior violations” factor, the Court considered the
October 30, 2010, citation, which became a final order of the Commission on August 8, 2011,
issued to Matsu for failing to provide a guard on a drill press located in the maintenance shop.
“At a minimum, the [2010] citation put the company on notice that its safety precautions were
inadequate. It also allowed [Matsu] sufficient time to take corrective action, as the instant
violations did not occur until some [two and a half] years later.” D & S Grading, 899 F.2d at
1148; Bunge, 638 F.2d at 838 n. 13.
As to the gravity of the violations, all of the tool and die makers using Matsu’s
mechanical presses were exposed on a daily basis to the unexpected energization of the
mechanical presses on which they worked. Matsu’s failure to guard the rotating chuck and drill
bit on the machines exposed the employees using those machines to the hazards associated with
being caught up in a rotating part. Employees were also exposed to the hazard of crushing and
amputation injuries due to Matsu’s failure to require the use of LOTO procedures for its tool and
die makers adjusting or repairing dies in its mechanical presses. The use of compressed air
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exceeding 30 p.s.i. also exposed employees to potential cuts or serious eye injuries. Given the
extent of physical injuries that did occur, and the high probable extent of physical injuries should
future accidents occur, the Court finds the gravity of all of these hazards, except the
recordkeeping violation, are high.
Matsu is subject to a civil penalty of up to $7,000.00 for each serious violation. 29 U.S.C.
§666(b). The Secretary proposed the maximum statutory civil penalty of $7,000.00 for each
individual and grouped serious violation in Citation Number 1, except Item 6, where he proposed
a penalty of $4,000.00. For Citation Number 3, Item 1, the other-than-serious violation, Matsu is
also subject to a civil penalty of up to $7,000.00. 29 U.S.C. §666(c). The Secretary proposed a
penalty of $1,000.00 for Citation Number 3, Item 1. The Court finds the Secretary’s proposed
penalties for Citation Number 1 and Citation Number 3 are appropriate, except for Citation
Number 1, Item 2, where the Court finds no penalty should be assessed.
For Citation Number 2, Item 1, the repeated violation of section 1910.212 (a)(1), Matsu is
subject to a civil penalty of not more than $70,000.00 but not less than $5,000.00. 29 U.S.C.
§666(a). The Secretary proposed a penalty of $35,000.00. The Court does not agree with the
Secretary’s proposed penalty. The Commission may, where appropriate, assess a penalty higher
than that proposed by the Secretary. R.G. Friday Masonry, Inc., 17 BNA OSHC 1070, 1075
(Nos. 91–1873 & 91–2027, 1995) (consolidated). Although gravity normally is the most
significant consideration, each factor can be accorded the weight that is reasonable in the
circumstances. Merchant's Masonry, Inc., 17 BNA OSHC 1005, 1006 (No. 92-424, 1994).
There is ample authority to establish that in situations of this nature, a substantial penalty is
warranted under section 17(j) to accomplish the civil, remedial purpose of inducing the cited
employer to satisfy its statutory obligation to provide a safe workplace.
For example, in Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995), the
Commission doubled the $14,000 penalty assessed by the judge in view of the employer's blatant
disregard for the safety of its employees and the high gravity of the violations. See also
Wheeling–Pittsburgh, 16 BNA at 1785 (large size, lack of good faith, and high gravity as factors
in assessing a penalty of high magnitude); Hern Iron Works, 16 BNA OSHC at 1625 (lack of
good faith as a significant factor in penalty assessment). Penalties must be assessed in an
amount sufficient to preclude their being assumed by the employer as “simply another cost of
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doing business.” Quality Stamping Prods. Co., 16 BNA OSHC 1927, 1929 (No. 91-414, 1994).
See E.L. Davis Contrac. Co., 16 BNA OSHC 2046, 2053 (No. 92-35, 1994) (where Commission
assessed a penalty of $60,000 to cause the company to appreciate “the vital importance of
complying with OSHA regulations”).
Given the seriousness of [redacted] ’s injuries, and the gravity of the repeated violation
for failing to guard the cited machines, even after his amputation injuries, and based on the
totality of the record, the Court finds the maximum civil penalty of $70,000.00 is appropriate for
Citation Number 2, Item 1. Further, even assuming arguendo the Secretary only established a
violation of the Sharp Radial Arm Drill Press cited in Item 1(a), given Matsu’s bad faith in
taking no action in abatement despite [redacted] ’s amputation injuries the week before, and the
repeated nature of the violation, the Court still finds the maximum civil penalty of $70,000.00 is
appropriate for Citation Number 2, Item 1, which is necessary to cause Matsu to appreciate the
vital importance of complying with OSHA regulations, E.L. Davis Contrac., 16 BNA OSHC at
2053, and hopefully, to preclude their being assumed by Matsu as simply another cost of doing
business. Quality Stamping Prods., 16 BNA OSHC at 1929. See also Wheeling-Pittsburgh, 16
BNA OSHC at 1786 (Commission affirmed proposed grouped penalty where compliance officer
testified the penalty is calculated for the first instance of a violation and only the penalty for the
first instance is proposed).
Finally, the Court notes Matsu’s “conduct was of such character as to be willful in the
civil sense. That is, it was intentional, knowing or voluntary as distinguished from accidental,
and it may be characterized as conduct marked by careless disregard.” Wetmore & Parman, Inc.,
1 BNA OSHC 1099, 1101 (No. 221, 1973) (citing United States v. Illinois Cent. R. Co., 303 U.S.
239, 243 (1938)). As the Commission has also found, a violation is willful “if committed with
intentional, knowing, or voluntary disregard for the requirements of the Act, or with plain
indifference to employee safety.” Westar Mech., Inc., 19 BNA OSHC 1568, 1574 (Nos. 97-0226
& 97-0227, 2001) (consolidated). “A willful violation is differentiated by a heightened
awareness — of the illegality of the conduct or conditions — and by a state of mind — conscious
disregard or plain indifference.” Id.
Here, even though [redacted] was a temporary employee hired by Surge as a janitor, with
no press operator experience and no training tailored to the needs of such an employee, Matsu
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made its choice to place [redacted] on press duties, without the knowledge or approval of
Surge, 35 “a conscious, intentional, deliberate, voluntary decision, which, regardless of a venial
motive, is properly described as willful.” United States v. Pugh, 515 F.3d 1179, 1193 (11th Cir.
2008). Sadly, as a result of Matsu’s misconduct, which was clearly marked by its careless
disregard of and plain indifference to [redacted]’s safety, [redacted] was trapped in Press
Number 10, resulting in the loss of some fingers on his left hand, which was flattened “like a
pancake,” and the amputation of his right arm to the middle of his forearm. Given [redacted]’s
slight build and that his entire body fit in the space between the press and the vertical light
curtain, Matsu knew or should have known the crowder bar safeguard was not capable of
providing [redacted] the protection it was intended for— to keep him within the sensing area of
the light curtain. [redacted]’s injuries could have been prevented had Matsu exercised
reasonable diligence and care. ComTran Grp., 722 F.3d at 1316.
Matsu had a heightened awareness of the illegality of the conduct or conditions— and the
requisite state of mind— the conscious disregard or plain indifference to [redacted]’s safety— as
demonstrated when Pinchon approached [redacted] and told him, “Don’t tell nobody I’ve been
putting you on the presses.” (Tr. 143.) Had the Secretary pleaded a willful violation, there was
ample evidence to support such a classification. However, such citation is not before the Court
because the Secretary, although possessed of the facts, did not choose to allege a willful
violation. Accordingly,
V. ORDER
IT IS HEREBY ORDERED THAT Citation Number 1, Item 2 is VACATED without the
assessment of a penalty.
IT IS FURTHER ORDERED THAT Citation Number 1, Items 1, 3, 4, 5a and 5b, and 6,
Citation Number 2, Item 1, and Citation Number 3, Item 1 are AFFIRMED.
35
As indicated supra, when Wolfsberger learned [redacted] was the employee who had been injured on Press
Number 10, Wolfsberger response was “Why in the hell was he on a press? . . . he should not have been on the
press. … He was a janitor. He wasn’t trained.” (Tr. 255.)
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IT IS FURTHER ORDERED THAT Matsu is assessed and directed to pay to the Secretary 36
the following civil penalties:
1. $7,000.00 for Citation Number 1, Item 1;
2. $7,000.00 for Citation Number 1, Item 3;
3. $7,000.00 for Citation Number 1, Item 4;
4. $7,000.00 for Citation Number 1, Items 5a and 5b (grouped);
5. $4,000.00 for Citation Number 1, Item 6;
6. $70,000.00 for Citation Number 2, Item 1; and
7. $1,000.00 for Citation Number 3, Item 1.
SO ORDERED THIS 29th day of September, 2015.
/s/
JOHN B. GATTO, Judge
U.S. Occupational Safety and
Health Review Commission
36
See section 17(l) of the Act, which mandates that civil penalties owed under this Act “shall be paid to the
Secretary for deposit into the Treasury of the United States[.]” 29 U.S.C. §666(l).
−62−
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