Grismer Tire Co.

Read the official release (oshrc.gov)

Plain-English summary

A tire technician died while changing rear tires on a backhoe, but no one witnessed the accident and emergency crews disturbed the scene before OSHA's investigation. The judge found that Grismer gave the technician adequate tire-service training. The Secretary also failed to prove that the ground was unsuitable for jacking or that the backhoe had not been properly cribbed, blocked, or secured. All three serious citation items and their proposed $6,300 penalties were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.177(c)(1)(i), 1910.244(a)(2)(i), and 1910.244(a)(2)(iii).
• Outcome: All three serious citation items and proposed penalties totaling $18,900 were vacated.
• Key point: A fatal accident does not establish a violation when the evidence shows adequate training and does not prove the cited jacking and load-securing conditions.

Full text (OSHRC public release)

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

SECRETARY OF LABOR, :
:
Complainant, :
:
v. :
: OSHRC DOCKET NO. 13-1939
GRISMER TIRE COMPANY, :
:
Respondent. :

Appearances:

Wayne P. Marta, Esquire, U.S. Department of Labor, Office of the Solicitor, Cleveland, OH
For the Complainant.

Robert T. Dunlevey, Esquire, and Abigail K. White, Esquire
Dunlevey, Mahan & Furry, Dayton, OH
For the Respondent.

Before: Keith E. Bell, Administrative Law Judge

                               DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission (the

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 451 et seq. (the Act). The Occupational Safety and Health Administration (OSHA)

conducted an inspection of a worksite located at 5250 Cobblegate Drive in Dayton, Ohio,

beginning July 16, 2013, through October 28, 2013. As a result, OSHA issued a Citation and

Notification of Penalty (Citation) to Grismer Tire Company (Respondent or Grismer), alleging

violations of the Act. The Citation has three items all stemming from a fatality that triggered the

accident investigation that gave rise to these alleged violations. Specifically, Citation 1, Item 1,
alleges that Respondent violated 29 C.F.R. § 1910.177 (c)(1)(i) and has a proposed penalty of

$ 6,300.00. Citation 1, Items 2 and 3, allege violations of 29 C.F.R. § 1910.244(a)(2)(i) and

§ 1910.244 (a)(2)(iii) respectively with a proposed penalty in the amount of $6,300 for each.

Respondent timely contested the Citation.1 The hearing in this matter was held on January 21

through January 23, 2015, in Cincinnati, Ohio. Both parties submitted post-hearing briefs that

were considered by the undersigned in reaching this decision. 2 This case involves an accident

that resulted in a fatality. The undersigned acknowledges that a loss of life is both serious and

tragic. However, the goal of this decision is not to assign blame, but rather to objectively evaluate

the evidence to determine whether the cited conditions were violations of the Act. The evidence

in this case reveals that sometimes an accident is just an accident. For the reasons discussed

below, Citation items 1, 2 and 3 are VACATED.

                                                Jurisdiction

  The parties have stipulated to the Commission’s jurisdiction over this proceeding and

coverage under the Act. (Tr. 12). Further, I find that the Act applies and the Commission has

jurisdiction over this proceeding pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c). The

record establishes that at all times relevant to this case, Respondent was an “employer” engaged in

a “business affecting commerce” within the meaning of section 3(5) of the Act, 29 U.S.C. §

652(5). Resp’t Answer, 2.

1
Despite raising it in its Answer, Respondent has not claimed the unforeseeable employee misconduct defense in its
post hearing briefs. L&L Painting Co., 23 BNA OSHC 1986, 1989 n. 5 (No. 05-0055, 2012) (finding item not
addressed in post-hearing briefs deemed abandoned); Midwest Masonry Inc., 19 BNA OSHC 1540, 1543 n. 5 (No.
00-0322, 2001) (noting arguments not raised in post-hearing briefs generally deemed abandoned).
2
At the conclusion of the hearing, the record was left open for the Secretary to determine the availability of a witness
named Harworth and have the court reconvene for the purpose of receiving his testimony. Tr. 789-90.
Subsequently, the record was closed by Order dated February 6, 2015, on motion by the Secretary with the
representation that he decided not to call Mr. Harworth. On May 21, 2015, the Secretary filed a Motion and
Supporting Memorandum to Re-open the Record for Additional Evidence. By Order dated May 26, 2015, the
Secretary’s motion was denied.
2
 Background

       This case involves an accident that resulted in the death of J.C. 3 who died of

compressional asphyxiation after getting pinned beneath a piece of heavy machinery (JCB 4CX

backhoe). 4 Tr. 11; C-36. J.C. was on site at Siebenthaler Company (Siebenthaler’s) to change

two rear tires on the backhoe. Tr. 157. There were no eyewitnesses to the accident. However,

there were a few witnesses who observed J.C. and the worksite before and after the accident.

Witness Accounts

       Robert Hupp, Commercial Truck Tire Salesman for Grismer, arrived on site at

Siebenthaler’s around 10:00 on the morning of the accident when he saw J.C. attempting to

demount a tire from a rim. Tr. 264. The backhoe was already in a raised position. Tr. 270.

Hupp did not see J.C. remove the left rear wheel. Tr. 266. Mr. Hupp observed some jacks, jack

stands, and wooden blocks but couldn’t recall how many. Tr. 267. He also noticed that J.C. was

having some problems demounting the tire. So, he called Matt Miller to ask if J.C. could bring

the tires and wheels into the shop so he could get some help. Mr. Miller said it would be okay and

Hupp informed J.C. At that point, Hupp saw J.C. gathering up his tools and putting them back on

the truck. Tr. 265.

       Andrew Jones, Siebenthaler’s Maintenance Supervisor, arrived at the site around 10:30

a.m. At that time, he could hear the sound of a compressor running. 5 Also, he observed the

backhoe was on the lot with a tire dismounted and the backhoe was tilted. When he approached,

he saw J.C. underneath and called to him. Tr. 170. J.C. was unresponsive so Jones proceeded to

3
The decedent’s initials are used here out of respect for his privacy.
4
The parties entered a stipulation as to the cause of death listed in the coroner’s report and the report was admitted
into evidence with no objection.
5
Photographs in evidence show the compressor hose running from the back of the stake/flatbed truck to the backhoe.
Tr. 90-91; CX-27, 29.
3
the office to get Leonard Willenbrink and to call 9-1-1. Mr. Willenbrink went to get a piece of

equipment (a floor jack) to get the backhoe off J.C. Tr. 171. However, the floor jack was never

used. Tr. 172. Jones recalls seeing two bottle jacks under the backhoe. Tr. 176. He also

observed that the outrigger stabilizers on the backhoe were up. Tr. 177. The front bucket of the

backhoe was on the ground. Tr. 179. Jones recalled that it was very hot that day. Tr. 180.

   Leonard     Willenbrink,    Siebenthaler’s    Landscape     Production     Supervisor,   was

approximately 100 feet away from the backhoe in his office when the accident occurred. Tr. 157.

He too heard the sound of an air compressor along with a banging noise. Tr. 157. After Andy

Jones informed him that something was wrong, he went to where the backhoe was located and

observed J.C. under the backhoe and unresponsive. Willenbrink yelled and tugged on J.C. then

called 9-1-1. Tr. 161. First responders arrived shortly thereafter. Tr. 162. According to

Willenbrink, there were so many first responders (fire department, EMTs, police) that he couldn’t

see anything at one point. Tr. 162. He didn’t recall if anyone else moved equipment during the

course of the rescue and recovery but said that he didn’t. Tr. 163.

Rescue/Recovery Operations

   Lieutenant Douglas Baumgartner, from the Moraine City Fire Division, (MCFD),

responded to an emergency call at Siebenthaler’s on the day of the accident (July 16, 2013). His

unit was 3rd or 4th to arrive on scene at approximately 10:52 a.m. Tr. 27, 47. Upon arrival, he

found J.C. trapped underneath a backhoe. Tr. 28. At some point after his arrival, Lt.

Baumgartner indicated that efforts to free J.C. switched from rescue to recovery operations when

the Incident Commander said that J.C. was no longer viable and had been without a pulse for

several minutes. Tr. 35. According to Lt. Baumgartner, rescuers had to disturb the scene “a bit”

in order to extricate J.C.’s body. Tr. 62, 66. He indicated that it was difficult to lift the backhoe

                                             4

because there was “not a lot of good surface area with which to stabilize, it was in a state of

disassembly, and because of the fact that it was leaning towards one side.” Tr. 72. At some

point, Lt. Baumgartner became the Incident Commander. Tr. 28, 31. As part of his duties, Lt.

Baumgartner took 17 photographs of the accident scene. Tr. 29; CX-4 – CX-20. In an effort to

rescue/recover the body of J.C., MCFD used wooden blocks called “cribbing and wedges.” Tr.

44. Lt. Baumgartner described the cribbing belonging to MCFD as lighter in color and shorter in

comparison to other pieces of wood at the scene. Tr. 39, 41; CX-8, CX-10. MCFD also used

step chocks which are commonly used to stabilize a vehicle involved in an accident. Tr. 40;

CX-8. MCFD also used the jaws of life. Tr. 41; CX-10.

OSHA’s Investigation

    OSHA Compliance Officer (CO) James Lopez was assigned to conduct an investigation of

the accident at Siebenthaler’s on July 16, 2013. Tr. 78. He learned about the accident from a

media report. Tr. 79. When he first arrived on scene, he encountered Attorney Robert Dunlevey

(Respondent’s Attorney) who informed him that information requests for Grismer had to go

through him. Tr. 80. He also encountered Matt Miller from Siebenthaler’s along with some

emergency personnel. Id. CO Lopez spent approximately two hours at the accident scene. Tr.

774. No formal interviews were conducted on that day. Tr. 204. As part of his investigation,

CO Lopez did the following:

1. took pictures of the accident scene;
2. took down information about the backhoe;
3. took down information about the positioning of the jacks;
4. looked at the tires on the backhoe;
5. inspected the ground composition; and
6. conducted management and employee interviews at a later date. Tr. 80-81.

CO Lopez testified that he did not get up into the stake bed truck to photograph any equipment

at the back of the truck. Tr. 777. He didn’t know there were “things (sic)” behind the air

                                           5

compressor. Tr. 778.

                                             Admitted Facts 6

  1. J.C. was an employee of Respondent Grismer Tire Company;

  2. J.C.’s training included but was not limited to, the Tire Industry Association (TIA)

       CTS-200 and 300 level technician training programs;

  3. J.C. completed the TIA CTS-200 and 300 level technician training programs prior to July

       16, 2013;

  4. J.C. was assigned to service two rear tires on a JCB 4CX backhoe at the Siebenthaler

       Company, located at 5250 Cobblegate Drive, Dayton, OH (the Siebenthaler job), on July

       16, 2013;

  5. While J.C. was working at the Siebenthaler job on July 16, 2013, the backhoe fell onto him;

  6. J.C. died on July 16, 2013.

                                           Pre-hearing Motion

       Prior to the start of the hearing, on January 15, 2015, Respondent filed a Motion In Limine

to exclude the testimony of Messrs. Thomas Klinge of Klinge & Company and John Funke of

Triple JR, LLC. Resp’t Mot. 1. The basis of Respondent’s objection to the testimony of Messrs.

Klinge and Funke was the belief that these witnesses may be called to testify as experts even

though they were also listed as lay witnesses. In any case, Respondent pointed out that these

witnesses were first identified in the Secretary’s Pre-hearing Report thereby denying Respondent

the opportunity to depose these witnesses. Id. at 3. Finally, Respondent contended that the

Secretary intended to call these witnesses in support of the qualifications of the Secretary’s

designated expert, James Johns, which would have been an unusual method of qualifying an

6
The admitted facts were set forth in Respondent’s prehearing statement without objection.
6
expert. Id. at 4. The undersigned held this motion in abeyance until the hearing. After the

undersigned ruled that Mr. James Johns would be accepted as an expert witness in this case,

Counsel for the Secretary represented that he no longer intended to call Messrs. Klinge and Funke

to testify concerning the qualifications of Mr. James Johns. Tr. 323. Based on that representation,

the undersigned granted Respondent’s Motion In Limine with respect to Messrs. Klinge and

Funke. Tr. 324.

    In its motion, Respondent further sought to exclude photographs taken by Lt. Douglas

Baumgartner of MCFD. Resp’t Mot. 4. Respondent asserted that none of the photographs

provided during the discovery phase were identified as having been taken by Lt. Baumgartner.

Id. At the hearing, Counsel for the Secretary moved for admission of the photographs taken by

Lt. Baumgartner (CX-4 through 20) following his testimony. Tr. 74. There was no objection by

counsel for Respondent; therefore, all of the photographs were admitted into evidence. Id.

                                        Motion for Sanctions

    After the hearing, the Secretary filed a Motion for Sanctions to Remedy Spoliation of

Evidence on September 3, 2015. 7 Specifically, the Secretary moves this court for an adverse

inference against Respondent. Sec’y Mot. 1. This motion is based on the testimony of Mr.

Matthew Miller who testified that he sent the metal equipment to the scrap yard and everything

else was thrown into a dumpster. 8 Tr. 579. The Secretary characterizes this action by Miller as

7
Rule 40(b) of the Occupational Safety and Health Review Commission’s Rules of Procedure (Commission Rules)
provides in part “Any other motion shall be made as soon as the grounds therefore are known”. 29 C.F.R.
§ 2200.40(b). In the instant case, the grounds for the Secretary’s motion were known as of the hearing in January
2015. However, counsel for Respondent understood the undersigned’s comment, “this issue is not before me…I
won’t be deciding it” to mean the court lacked jurisdiction to hear such a motion. Notwithstanding the passage of
time between the hearing and the filing of the Secretary’s Motion for Sanctions, it was filed before issuance of this
decision. Therefore, I consider the motion timely filed.
8
Miller testified that there were two jack stands on the flatbed already when he looked into it. Tr. 579, 588. He
further testified that there was one plate, and approximately 10 pieces of wood. According to Mr. Miller, Cranford
had everything he needed to do the job at Siebenthaler’s. Tr. 588.
7
“destruction” of the evidence. However, the evidence of record does not support the Secretary’s

contention that Miller “destroyed” the evidence; neither does it support the imposition of

sanctions.

   “When it would be natural under the circumstances for a party to call a particular witness,

or to take the stand as a witness in a civil case, or to produce documents or other objects in his

or her possession as evidence and the party fails to do so, this failure may serve as the basis for

invoking an adverse inference.” 2 McCormick on Evidence § 264 (Kenneth S. Broun, ed., 2006)

(emphasis added). Here, the equipment used by the deceased on the day of the accident was taken

back to Grismer after the accident and locked in a closet. Tr. 573-574. Mr. Miller had sole

access to that closet containing the equipment. Tr. 575. Respondent concedes that the

equipment retrieved from the accident site would have supported its position that the deceased had

all of the equipment necessary to perform the assigned task. Resp’t Opp’n Mem. 7. Therefore, it

would seem natural under the circumstances for Respondent to preserve the evidence and present

it as evidence at the hearing as part of its defense. Accordingly, I find that the Secretary’s

argument for an adverse inference has merit.

   A party seeking an adverse inference for evidence spoliation must establish:

   (1) that the party having control over the evidence had an obligation to preserve it at
   the time it was destroyed; (2) that the evidence was destroyed “with a culpable state
   of mind”; and (3) that the destroyed evidence was “relevant” to the party's claim or
   defense such that a reasonable trier of fact could find that it would support the claim
   or defense.

Beaven v. United States Department of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (Beaven)

(quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).

Prong 3 of the Beaven test (relevance of the evidence destroyed) is undisputed and established by

the evidence; therefore, I will not address it. In Beaven, the Sixth Circuit enunciated the

                                             8

following as standards to govern the district court's discretion:

   [A]n adverse inference for evidence spoliation is appropriate if the defendants
   knew the evidence was relevant to some issue at trial and [their culpable] conduct
   resulted in its loss or destruction. This depends on the alleged spoliator’s mental
   state regarding any obligation to preserve evidence and the subsequent destruction.
   An obligation to preserve may arise when a party should have known that the
   evidence may be relevant to future litigation. The culpable state of mind factor is
   satisfied by a showing that the evidence was destroyed knowingly, even if without
   intent to breach a duty to preserve it, or negligently.

Beaven, 622 F.3d at 553–54 (internal citations omitted, second brackets in original). Although

the Beaven decision focuses on federal district court proceedings, the Commission has recognized

the existence and application of the common law principle of adverse inference in administrative

proceedings. See Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1343 (No. 00-1968, 2003).

The Secretary failed to establish prongs 1 and 2 of the Beaven test for determining whether a

moving party is entitled to an adverse inference for spoliation of evidence. Prong 1 requires an

“obligation” to preserve the evidence. In his motion, the Secretary failed to articulate the

existence of a statutory provision or regulation requiring an employer to preserve evidence at the

scene of an accident following an investigation. The OSHA CO testified that he did not tell any

Grismer representative to preserve the equipment at issue. Tr. 775. Further, the CO testified that

he only makes such requests on a case-by-case basis. Tr. 774-776. Moreover, the CO never

asked to see any of the equipment after the day of the accident. Tr. 776. Mr. Miller testified that

no one ever told him to preserve the equipment. Tr. 575, 581, 593. He further testified that CO

Lopez never directed him to gather up the equipment following the accident. Tr. 586. He alone

made the decision to do so. Id. Also, Miller testified that if CO Lopez had made a request to

check out the equipment, he would have kept it longer. Id. Accordingly, I find that there was no

duty to preserve imposed by statute, regulation, or request. When pressed, by Counsel for the

Secretary, on when he got rid of the equipment/evidence relative to the issuance of the Citation,

                                              9

Mr. Miller testified that it was before the Citation was issued. Tr. 584. In the absence of a

timeframe for the destruction of the evidence, it is impossible to know whether Respondent should

have known that there would be future litigation. The Secretary has failed to prove prong 1of the

Beaven test.

       Prong 2 requires that the spoliation of evidence be done with a “culpable state of mind.”

Mr. Miller testified that he didn’t want the equipment ever being used again because it was

involved in an accident and would have made the other technicians feel weird using J.C.’s

equipment after he was killed. Tr. 584. As before stated, Miller also testified that no one ever

told him to preserve it. Tr. 575, 581. Miller further testified that the equipment wouldn’t be used

anymore since J.C. was deceased. Tr. 580. Whatever one may think of his reasons, they don’t

reveal a “culpable” state of mind to destroy the evidence, but rather an assessment that it was no

longer needed. Moreover, Miller’s initial act of sending the metal to the scrap yard while

throwing all else in the dumpster did not result in the immediate “destruction” of the equipment

though destruction seemed likely once the equipment reached its destination. Based on the facts,

I find that the Secretary has failed to prove prong 2 of the Beaven test by establishing that

Respondent had the requisite “culpable” state of mind when it got rid of the equipment.

       For the reasons stated above, the Secretary’s Motion for Sanction to Remedy Spoliation of

Evidence is DENIED.

                                             Expert Witnesses

       Both parties called expert witnesses to testify at the hearing. The Secretary tendered Mr.

James Johns while Respondent tendered Mr. Kevin Rohlwing. 9

       In 1993, the Supreme Court changed its standard for admitting expert testimony under

9
The qualifications for the expert witnesses were admitted into evidence as CX-47, at 5-6 and RX-3 respectively.
10
Federal Rule of Evidence 702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89

(1993) (Daubert). Rule 702, as amended to incorporate the Court’s rationale in Daubert,

provides that a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise, if:

     the expert’s scientific, technical, or other specialized knowledge will assist the trier
     of fact to understand the evidence or to determine a fact in issue; the testimony is
     based on sufficient facts or data; the testimony is the product of reliable principles
     and methods; and the expert has reliably applied the principles and methods
     reliably to the facts of the case.

Fed. R. Evid. Rule 702. Under this rule, the judge is required to serve as a gatekeeper to “ensure

that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”10

Daubert, 509 U.S. at 589; see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (extending

the court’s gatekeeper function to all expert testimony). Fulfilling the gatekeeper function

requires the judge to assess the reasoning and methodology underlying the expert’s opinion, and

determine whether it is both valid and applicable to the particular set of facts. 509 U.S. at 592-93.

The Supreme Court has made clear that “where [expert] testimony’s factual basis, data, principles,

methods, or their application are called sufficiently into question . . . the trial judge must determine

whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant]

discipline.’ ” Kumho Tire, 526 U.S.at 149. (quoting Daubert, 509 U.S. at 592). The gatekeeper

has the responsibility to exclude unreliable expert testimony. Id.

     To assist in the assessment of reliability, the Daubert court listed four nonexclusive factors

district courts may consider: (1) whether the opinion at issue is susceptible to testing and has been

subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether

there is a known or potential rate of error associated with the methodology used and whether there

10
Federal Rule of Evidence 702 addresses whether the testimony will assist the “trier of fact,” be that a judge or the
jury.
11
are standards controlling the technique’s operation; and (4) whether the theory has been accepted

in the scientific community. Daubert, 509 U.S. at 593-94. District courts applying Daubert

have broad discretion to consider a variety of other factors as well, dependent on the “particular

circumstances” of each case. Kumho Tire, 526 U.S.at 150 (“[W]e can neither rule out, nor rule in,

for all cases and for all time the applicability of the factors mentioned in Daubert . . . .”). It has

been held that the trial judge has wide latitude in deciding whether to admit or exclude the

testimony/report. U.S. v. Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001).

   In this case, the undersigned admitted the testimony and report of both experts with the

belief that doing so would assist with an understanding of the evidence. It is important to note

that counsel for Respondent objected to the tender of Mr. John’s as an expert witness. Tr. 285.

Following an extensive voir dire by counsel for both parties, the undersigned accepted Mr. Johns

as an expert witness, based on his practical experience, on the grounds that his testimony might

assist the undersigned with understanding the evidence. Tr. 321. The undersigned further ruled

that although Mr. Johns was accepted as an expert at the hearing, an evaluation of his testimony

thereafter would determine the weight accorded. Tr. 325.

   Having accepted both parties’ experts, the undersigned acknowledges that not all experts

are equal. Although both gentlemen demonstrated knowledge and familiarity with the issues

related to servicing tires on large pieces of “off-the-road” equipment, I find the knowledge and

experience of Respondent’s expert, Kevin Rohlwing, to be superior to that of the Secretary’s

expert, James Johns. For the reasons set forth below, I credit the testimony and opinions of Mr.

Rohlwing over those offered by Mr. Johns. ACME Energy Servs. d/b/a Big Dog Drilling, 23

BNA OSHC 2121, 2125 (No. 08-0088, 2012) (comparing experts and finding one “in a better

position” based on “professional training and extensive experience”), aff’d, 542 F. App’x 356 (5th

                                             12

Cir. 2013) (unpublished).

    Mr. Rohlwing’s curriculum vitae reveals that his experience with the servicing of tires

dates back to 1982. RX-3. That experience includes working for the Tire Industry

Association. 11 Id. Under Rule 201 of the Federal Rules of Evidence, the undersigned takes

“judicial notice” of the fact that the TIA is a nationally recognized organization regarded as the

leading authority in the tire industry for advocacy and training. Mr. Rohlwing has served as Sr.

Vice President of the TIA for 13 years. Tr. 634-35. In his position with TIA, Mr. Rohlwing’s

primary responsibility is to develop training and educational programs for tire service technicians.

This training includes service on commercial tires including earthmoving equipment. Tr. 635.

Mr. Rohlwing has serviced tires on backhoes between 30-50 times in his career. Tr. 638. He has

been a guest speaker at industry conferences and addressed topics such as tire safety issues. Tr.

639; RX-3, at 4-5. Mr. Rohlwing has published articles on topics such as servicing “off the road”

tires in a safe manner. Tr. 640; RX-3, at 6-7. He worked with the cited standard almost daily

from the beginning of his career in 1997 until 2007. Tr. 644. Most notably, Mr. Rohlwing was

invited by OSHA to develop new charts related to this standard. Tr. 660. OSHA eventually

approved the charts and they are now part of the standard. Tr. 661-62. Mr. Rohlwing has

testified in court proceedings twice before. RX-3, at 8. His opinions were expressed within a

reasonable degree of certainty based on his experience as a technician and an educator in the tire

service industry. RX-2, at 1. There was no objection to Mr. Rohlwing being qualified as an

expert. Tr. 641. In fact, even the Secretary’s expert conceded that Mr. Rohlwing’s credentials

are “impeccable.” Tr. 339.

    Mr. Johns’ qualifications were listed at the end of his expert report. CX-47, at 5. He has

11
The Secretary’s expert, Mr. Johns, acknowledged that TIA is the authority on consensus in the universe of tires.
Tr. 462.
13
worked in the tire industry since 1973. Id. Altogether, he has 20 years of experience changing

tires. Tr. 320. He has one certification from TIA for completing the CTS-200 course. Tr. 274.

He has never taken TIA’s CTS-300 course. Tr. 319. He worked on backhoes more than 100

times. While working for Toledo tires for 13 years, he worked on “off-the-road” tire and wheel

assemblies. Tr. 277. His extensive practical experience servicing tires served as the basis for the

undersigned accepting him with the belief that his testimony would be helpful. However, Mr.

Johns’ lack of formal experience and his methodologies used to support his opinions rendered his

testimony unhelpful and unreliable. For example, Mr. Johns never had any formal OSHA

training. Tr. 283. The formal training he did receive came from the Mine Safety and Health

Administration. Tr. 284. When testifying about the industry standard for servicing tires, Mr.

Johns repeatedly referenced “best practices”; however, he could not cite the source for them. Tr.

414. These “best practices” he talks about are derived from his own experience along with

conversations with others such as the trainer from Klinge, Inc. who he speaks to regularly. Tr.

409. He also spoke to the Safety Director of the Triple S Tire Company. Tr. 410. They spoke

about cribbing and blocking a machine. Tr. 411. He also spoke to a service technician at the

Triple S Tire Company in the summer of 2014. Tr. 411-12. None of these conversations

addressed servicing a backhoe specifically. Mr. Johns defined “best practices” as “a compilation

of ideas, thoughts, and experiences from people that are knowledgeable in a particular area

reviewing best practices to come up with a recommended procedure.” Tr. 637. An exchange

between counsel for the Secretary and Mr. Johns to further clarify the concept of “best practices”

yielded the following:

   Q. And who do you mean by this? That is what would be the universe of these
   best practices that you’re referencing?



                                            14

A. Well, it would be certainly within my own company experienced
technicians, other people in --- outside of our company that are in similar
situations asking, or inquiring or discussing what they find to be best practices. It
can also be training people that are experienced just to ask a question. Tr. 367

These “best practices” aren’t written down, but rather just word of mouth conversations. Tr. 371.

The undersigned rejects Mr. John’s theory of “best practices” on the grounds that they are not

based on sufficient data and are not the product of reliable principles and methods widely accepted

by the tire industry.

    Ultimately, the experience (practical and formal training) of each of the experts along with

the information reviewed concerning this case serves as the basis for the opinions offered. Based

on the evidence of record, the experience of Mr. Rohlwing is superior to that of Mr. Johns in that it

directly relates to working with OSHA standards on a regular basis in order to develop appropriate

safety training for the tire industry. His work for TIA developing training for service technicians

to include the CTS-200 and 300 modules give him expert knowledge of what it takes to achieve

compliance with 29 C.F.R. § 1910.177. Finally, his opinions are well supported by his

experience in dealing with OSHA and the standards at issue. Mr. Rohlwing’s testimony was

based on methodologies that represent industry practices and it assisted me to understand the

evidence and decide the facts in issue. By contrast, the testimony of Mr. James Johns was not

helpful and the opinions set forth in his report seemed to be his own, not well supported, and not

reflective of industry practices. See, i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed.

Cir. 2010) (noting that a federal judge can give little weight to expert testimony although found

reliable enough to pass the threshold of Rule 702 of the Federal Rules of Evidence, is not of much

assistance to the judge in finding facts). In furtherance of my gatekeeper function under Rule 702

of the Federal Rules of Evidence, I have weighed the testimony and reports of both experts.

Accordingly, the testimony and report of Mr. Kevin Rohlwing are accorded great weight while the

                                             15

testimony and report of Mr. James Johns are accorded little weight.

                                            Burden of Proof

    To prove a violation of an OSHA standard, the Secretary must show by a preponderance of

the evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of

the cited standard; (3) employees had access to the violative condition; and (4) the employer either

knew or could have known with the exercise of reasonable diligence of the violative condition.

JPC Grp., Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). A preponderance of the

evidence is “that quantum of evidence which is sufficient to convince the trier of fact that the facts

asserted by a proponent are more probably true than false.” Astra Pharma. Prods., 9 BNA OSHC

2126, 2131, n. 17 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

    All of the alleged violations at issue in this case have been classified as “serious.” To

prove that a violation was “serious” under section 17(d) of the Act, the Secretary must show that

there is a substantial probability of death or serious physical harm that could result from the cited

condition and that the employer knew or should have known of the violation. The Secretary need

not show the likelihood of an accident occurring. Spancrete Ne., Inc., 15 BNA OSHC 1020, 1024

(No. 86-521, 1991).

                                               Discussion

                       Alleged Violations of 29 C.F.R. § 1910.177(c)(1)(i)

Citation 1, Item 1a alleges a violation of 29 C.F.R. § 1910.177(c)(1)(i) which requires that:

    The employer shall assure that no employee services any rim wheel unless the
    employee has been trained and instructed in correct procedures of servicing the
    type of wheel being serviced, and in the safe operating procedures described in
    paragraphs (f) and (g) of this section. 12

12
29 C.F.R. § 1910.177(f) provides: Safe operating procedure – multi-piece rim wheels. The employer shall
establish a safe operating procedure for servicing multi-piece rim wheels and shall assure that employees are
instructed in and follow that procedure. Thereafter, it sets forth 11 elements that the safe operating procedure must
include.
16
 Specifically, Item 1a alleges that the deceased was exposed to a struck-by, caught-in-between

hazard due to the inadequacy of his training and instruction on off-the-road construction vehicles

and equipment. The statement of “scope” for this standard indicates that, “[t]his section applies to

the servicing of multi-piece and single-piece rim wheels used on large vehicles such as…off the

road machines.” Servicing of Single Piece and Multi-Piece Rim Wheels, 49 Fed. Reg. 4338,

4350 (Feb. 3, 1984) (to be codified at 29 C.F.R. part 1910). According to the regulation, the term

“service” means “the mounting and demounting of rim wheels, and related activities such as

inflating, deflating, installing, removing, and handling.” 29 C.F.R. § 1910.177(b). In this case,

the facts reveal that J.C. was servicing (mounting/demounting) the tires on a backhoe at the time of

the accident. I find that the standard applies.

     The Act contemplates performance standards, specification standards, and standards which

combine both approaches. Am. Iron & Steel Inst. v. OSHA, 577 F.2d 825, 837 (3d Cir. 1978).

The standard at issue doesn’t set forth specific requirements for compliance thereby making it a

performance standard. Unlike a specification standard, which details precise requirements an

employer must meet, a performance standard indicates the degree of safety and health protection

required, but leaves the method of achieving the protection to the employer. Compliance with a

performance standard is determined by whether the employer acted as a reasonably prudent

employer would: [T]he employer is required to assess only those hazards that a “reasonably

prudent employer” would recognize. See W.G. Fairfield Co., 19 BNA OSHC 1233, 1235 (No.

29 C.F.R. § 1910.177(g) provides: Safe operating procedure – single piece rim wheels. The employer shall
establish a safe operating procedure for servicing single piece rim wheels and shall assure that employees are
instructed in and follow that procedure. Thereafter, it sets forth 12 elements that the safe operating procedure must
include.
The Secretary’s photo appears to show that the Siebenthaler’s backhoe has a single-piece wheel assembly. CX-22.
Also, the Secretary acknowledges this interpretation in its brief. Sec’y Br. 15. However, neither of these provisions
(1910.177 (f) or (g)) were the focus of the Secretary’s case.
17
09-0344, 2000), aff'd, 285 F.3d 499 (6th Cir. 2002); see also, Thomas Indus. Coatings, Inc., 21

BNA OSHC 2283, 2287 (No. 97-1073, 2007) (“[P]erformance standards ... are interpreted in light

of what is reasonable.”). A reasonably prudent employer is a reasonable person familiar with the

situation, including any facts unique to the particular industry. W.G. Fairfield Co., 19 BNA

OSHC at 1235; Farrens Tree Surgeons, Inc., 15 BNA OSHC 1793, 1794 (No. 90- 998, 1992); see

also Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976). Under Commission

precedent, industry practice is relevant to this analysis, but it is not dispositive. W.G. Fairfield, 19

BNA OSHC at 1235-36; Farrens Tree Surgeons, 15 BNA OSHC at 1794; see also Smoke-Craft,

530 F.2d at 845 (noting that in absence of any industry custom the need to protect against an

alleged hazard “may often be made by reference to” what a reasonably prudent employer “familiar

with the industry would find necessary to protect against this hazard”). Associated Underwater

Servs., 24 BNA OSHC 1248, 1250 (No. 07-1851, 2012).

    CO Lopez testified that his conclusion regarding the inadequacy of J.C.’s training was

based largely on CX-37 showing that J.C. did not pass the written exam for the TIA Certified Tire

Service (CTS) 300 level exam. Tr. 121. He reached this conclusion notwithstanding the fact

that he saw documents showing that J.C. completed the TIA CTS-200 course along with the skills

portion of the 300 level exam. Id. CO Lopez also based this conclusion on the fact that the job

J.C. was initially sent to do changed following a phone call between Mr. Robert Hupp, and

Matthew Miller. Tr. 128. The change CO Lopez referenced had to do with the fact that although

J.C. was initially to service the backhoe tires on site at Siebenthaler’s, this changed once Mr.

Miller approved having both tires removed and brought back to Grismer for servicing. Tr.

128-29.

    Respondent produced documentary and testimonial evidence that J.C. received training.


                                              18

Respondent’s exhibit number 5 (RX-5) consists of documents reflecting training provided by

Grismer to J.C. Of those documents in RX-5, some were directly related to the task of servicing

tires:

•    “Lifting it Right” – Safety quiz taken by J.C. in May 2011. He achieved a score of
     24 out of a possible 25 points; and

•    “Tire Cages” – Training on the use of tire cages given to J.C. in September 2011.
     This training consisted of having the trainee demonstrate such skills as:
     demounting of tires, use of equipment required by 29 C.F.R. § 1910.177, mounting
     of tires, installation and removal of rim wheels. J.C. received additional training
     on the use of Tire cages in November 2012 and again in April 2013.

     Marsha Crawford is the Human Resource Manager for Grismer who also oversees the

company’s safety program. Tr. 481. According to Ms. Crawford, J.C. received CTS-200

training, as does every employee, on his first day of work. Tr. 482. Additionally, Ms. Crawford

testified that J.C., received equipment safety training on the proper use of jacks and jack stands.

Tr. 522; RX-7. This training was completed in May of 2011 using a training video developed by

the TIA. Tr. 485; RX-5. According to Respondent’s expert, Kevin Rohlwing, 1910.177 is

taught as part of TIA’s CTS-200 program. Tr. 664. Ms. Crawford also testified that J.C.

received hazard recognition training. Tr. 486. J.C. also received video training on the proper

way to do automotive lifting. Tr. 489; RX-5, at 8. Ms. Crawford testified that J.C. was tested on

the skills presented in the TIA CTS-300 training on September 21, 2011. The Trainer, Jim

Harworth, noted that J.C. demonstrated and maintained the ability to perform the tasks in

accordance with 29 C.F.R. § 1910.177(c)(2). Tr. 492. Finally, Ms. Crawford testified that

Grismer utilizes the TIA CTS-200 training for its service technicians because it meets the

requirements for 29 C.F.R. § 1910.177. Tr. 495.

     Respondent’s expert, Kevin Rohlwing, testified that the CTS-200 training module

addresses safety hazards associated with servicing tires such as: inflation and separation, jacking

                                             19

and lifting, installation and removal of rim wheels. Tr. 668. A technician must demonstrate

these skills and others in order to receive a certification from the TIA. Id. With regard to the

CTS-300 training, equal weight is given to the written and skills portion of the examination. Tr.

668-69. However, anyone who achieves a score of 90 or better on the written portion doesn’t

have to do a skills demonstration. Id. Conversely, anyone who gets an A+ on the skills

demonstration only needs a score of 50% on the written exam. Tr. 669. In Mr. Rohlwing’s

expert report, he pointed out that the cited standard does not require a written examination and only

references the skills outlined in 29 C.F.R. § 1910.177(c)(2). RX-2, at 2. Mr. Rohlwing testified

that he submitted a written inquiry to OSHA regarding its interpretation of 29 C.F.R. § 1910.177.

Tr. 646. In response, he received a letter in February 1997. 13 RX-8. According to the letter,

OSHA recognizes that some employees may require “relatively little training” or “no refresher

training” while others may require additional training to develop their “knowledge of safe methods

and procedures.” RX-8. According to the interpretive letter, under this standard, OSHA simply

requires that each employee receive “appropriate” and “effective” training. RX-8. The letter

from OSHA also indicate that the agency gives the employer the flexibility to determine the

training necessary to comply with this standard with the understanding that it bears the

responsibility to ensure that training provided must be adequate. Id. Finally, the letter indicates

that certification exams are not required by the standard. Id. This interpretive letter provided by

OSHA in addition to the fact that the plain language of the standard (1910.177) does not require a

written exam makes the Secretary’s argument regarding J.C.’s failing score (59) on the written

portion of the TIA CTS-300 exam moot. Rather, the focus for determining compliance with this

13
Counsel for the Secretary objected to the admission of this letter (RX-8) on the grounds that it is hearsay. Tr. 646.
However, the undersigned took judicial notice of this letter based upon the representation that it is published on
OSHA’s website. Tr. 653. Rule 201 of the Federal Rules of Evidence states in relevant part: “The court may
judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. Rule 201(b)(2).
20
standard must be on the training provided and whether Grismer acted as a reasonably prudent

employer in providing adequate training to protect J.C. against the hazards contemplated by 29

C.F.R. § 1910.177.

    Based on his observations of J.C. after he came to work for Grismer, Mr. Miller described

him as “highly proficient.” Tr. 547. Mr. Miller testified that J.C. was selected to service the

backhoe at Siebenthaler’s because it was “his strength” and he was familiar with that backhoe and

had serviced its tires at least twice previously. Tr. 555-56. There was a service manager present

on both occasions and there were no problems. Tr. 556. Mr. Miller testified that he personally

observed J.C. servicing a backhoe at least twice. During those observations, he observed J.C.

jack and secure the backhoe, place the jack stand or cribbing, remove the tire(s), replace and inflate

the tire(s). Tr. 548. One of those observations was made shortly before the accident that led to J.

C.’s death. Tr. 549. According to Mr. Miller, J.C. never had any “near misses” and was never

cited for any safety violations. Tr. 554.

    According to the Secretary’s expert, James Johns, the training provided to J.C. by Grismer

was inadequate because it did not specifically address the hazards associated with “off-the-road”

vehicles such as a backhoe. 14 CX-47, at. 3. This argument is similar to that of CO Lopez who

testified that J.C. should have had training specifically related to backhoe lifting to know lifting

points and how to properly lift. Tr. 205. However, Respondent’s Expert, Kevin Rohlwing

testified that TIA’s CTS-200 training course, utilized by Grismer, meets the minimum

requirements for compliance with § 1910.177. Tr. 691. He further testified that the CTS-200

training translates to all types of equipment including “off-the-road” machines such as the backhoe

14
According to the Secretary’s Expert, Mr. Johns, Grismer should have offered Mr. Cranford training specific to “off
the road” vehicles such as TIA’s Basic Farm Tire Service (FTS) course that addresses equipment like Siebenthaler’s
backhoe. CX-45; Tr. 347-50. Interestingly, Mr. Johns has never taken TIA’s FTS course despite the fact that he has
serviced backhoes more than 100 times. Id. at 347.
21
at Siebenthaler’s. Id. With regard to training specific to a particular piece of equipment, Mr.

Rohlwing testified that it is not feasible because there is such a wide variety of equipment thereby

making this type of training unreasonable and infeasible. Tr. 691. Moreover, even Mr. Johns

agreed that the TIA CTS 200 and 300 courses training on the proper method of lifting on an axle

and how to replace a jack stand after you have raised it would work for a backhoe. Tr. 416.

Additionally, he conceded that after taking the TIA CTS 200 and 300 courses, J.C. would have

been adequately trained to service the backhoe. Tr. 416.

   I find that Grismer provided adequate training to J.C. in compliance with 29 C.F.R.

§ 1910.177(c)(1)(i). The documentary and testimonial evidence all demonstrate that he was

provided training designed to protect him against the hazards associated with servicing tires to

include tires on “off-the-road” vehicles such as a backhoe. Additionally, the observations made

by Mr. Miller coupled with J.C.’s satisfactory skills demonstration on the TIA CTS-200 and 300

exams reflect his competency to service tires including those on off the road equipment such as

backhoes. The evidence reveals that Grismer’s training program and periodic observations and

evaluations of its service technicians are reflective of what a “reasonably prudent” employer

familiar with the tire servicing industry standards would have done in this situation. Therefore, I

find that the Secretary has failed to establish a violation of 29 C.F.R. § 1910.177(c)(1)(i) by a

preponderance of the evidence.

   With regard to Grismer’s knowledge of the alleged violation, the Secretary has established

actual knowledge. The testimony of Ms. Crawford (Grismer’s Human Resources Manager) and

Matthew Miller (Grismer’s Service Manager) establish the employer’s direct knowledge of

training provided to J.C. in an attempt to comply with 1910.177. Specifically, both of these

witnesses testified regarding their direct involvement in his training. Further, through Mr.

                                            22

Miller’s periodic evaluations of J.C., he had the opportunity to determine whether J.C. needed

additional training under this standard. Knowledge of the violation is established.

   Regarding employee exposure, the record is clear that J.C. was exposed to the hazard

addressed by 29 C.F.R. § 1910.177(c)(1)(i).

                    Alleged Violation of 29 C.F.R. § 1910.244(a)(2)(i)

   Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1910.244(a)(2)(i), which states:

“Operation and maintenance.(i) In the absence of a firm foundation, the base of the jack shall be

blocked. If there is a possibility of slippage of the cap, a block shall be placed in between the cap

and the load.”

   Specifically, the Citation alleges that J.C. was exposed to a caught-in-between hazard from

the lack of blocking of the base of two 20 ton air hydraulic jacks located under the JCB 4CX

Backhoe due to the unstable foundation consisting of dirt, gravel and depressions in the ground on

which the rear of the backhoe was raised in order to remove the two rear tires.

   The cited standard falls under Subpart P which is titled Hand and Portable Powered Tools

and Other Hand-Held Equipment. 29 C.F.R. 1910 Subpart P. Within that subpart, § 1910.244 is

titled Other portable tools and equipment. 29 C.F.R. § 1910.244. Subsection (a) of 1910.244

specifically addresses jacks. Respondent argues that the second part of this standard does not

apply to the tire industry. Resp’t Br. 35. However, the Secretary points out, and I concur, that

“[t]his is a ‘general industry’ standard which applies to any usage of a jack outside the construction

industry or another specialized activity.” Sec’y Br. 18. 29 C.F.R. § 1910.5 (c) (2) provides:

“[A]ny standard shall apply according to its terms to any employment and place of employment in

any industry, even though particular standards are also prescribed for the industry…to the extent

that none of such particular standards applies.” Moreover, the focus of the Secretary’s case has to

                                             23

do with the first sentence of this standard. The evidence of record reveals, and it is undisputed,

that at least one jack was used by J.C. to service the tires on the backhoe. I find that the standard

applies.

       The central argument regarding this standard is whether the ground at Siebenthaler’s was

firm on the date of the accident. Neither Commission case law nor the cited regulation provides

guidance on the definition of the word “firm.” Therefore, it is reasonable to look to the plain

meaning of the word as defined in an authoritative dictionary. Johnson Controls, Inc., 15 BNA

OSHC 2132 (No. 89-2614, 1993) (noting that authoritative dictionary definitions are helpful).

The online version of the Merriam-Webster dictionary defines “firm” as: (1) securely or solidly

fixed in place; (2) having a solid or compact structure that resists stress or pressure; or not easily

moved or disturbed. 15 This definition of “firm” is consistent with the language used to describe

ideal ground composition (clean, flat, and stable) when using a jack/jack stand on pg. 4 of CX-44

(Module 5 of TIA course titled “Basic Commercial Tire Service: Jacking and lifting”).

(emphasis added). CO Lopez testified that the ground upon which the hydraulic jack(s) and jack

stand were being used was unstable. Tr. 235. Among the photos that he took of the accident

scene, CO Lopez testified that CX-25 and CX-30 reflect the ground instability. Tr. 254-57. The

photographs of the ground were not helpful to the undersigned in making a determination of the

stability of the ground. Interestingly, the government did not present an expert on soil

composition or results of a soil composition test. However, in his brief, the Secretary takes the

position that Respondent should have provided a soil compaction report or expert. Sec’y Br. 18.

Apparently, the Secretary believes that Respondent bears the burden of proving that the ground at

Siebenthaler’s was firm. In any case, the undersigned had to weigh the quantum of evidence

15
http://www.merriam-webster.com/dictionary/firm. (last visited July 25, 2016).

                                                      24

offered regarding the stability of the ground. First responder Lt. Baumgartner testified that it was

difficult to stabilize the backhoe because there was not a lot of good surface area. Tr. 72. Put

into context, this reference to “not a lot of good surface area” was in response to a question

regarding the difficulty of lifting a backhoe because it has few surfaces. Id. Siebenthaler’s

Landscape Production Supervisor, Leonard Willenbrink, testified that ground was composed of

small/compactable gravel that was “pretty much perfectly level.” Tr. 165. Siebenthaler’s

Maintenance Supervisor testified that the ground underneath the backhoe was “hard packed

gravel.” Tr. 179. Grismer’s Commercial Truck Tire Salesman, Robert Hupp, testified that the

ground was “pretty well compacted.” Tr. 269. Grismer’s Service Manager, Matthew Miller,

testified that he had been to the parking lot of Siebenthaler’s where the accident occurred

previously and it was the same as the day of the accident. He described it as gravel, mud, and

broken up concrete. Tr. 56. He further described the ground beneath the backhoe as gravel that

had been crushed many times and compacted into concrete form. Miller believed that the ground

was suitable for the use of a jack and jack stand. Tr. 564. Based on the testimony, the evidence

suggests that the ground at Siebenthaler’s was firm. Also, there is no way of knowing whether

J.C. cleaned the area where he placed the jack given the disturbance of the scene during the

rescue/recovery operations. The undersigned did not consider the opinion of either expert (Johns,

Rohlwing) concerning the alleged violation of 29 C.F.R. § 1910.244(a)(2)(i) because neither

visited Siebenthaler’s to make an observation of the ground composition. Moreover, neither Mr.

Johns nor Mr. Rohlwing purports to be an expert on ground composition. The quantum of the

evidence regarding the ground composition at Siebenthaler’s parking lot on the date of the

accident does not support the alleged violation. Accordingly, the Secretary has failed to establish

a violation of this standard by a preponderance of the evidence.

                                            25

Employer knowledge is established by a showing of employer awareness of the physical

conditions constituting the violation. It need not be shown that the employer understood or

acknowledged that the physical conditions were actually hazardous. Phoenix Roofing, Inc., 17

BNA OSHC 1076, 1079 (No. 90-2148, 1995) aff’d without op., 79 F.3d 1146 (5th Cir. 1996) citing

E. Tex. Motor Freight v. OSHRC, 671 F.2d 845, 849 (5th Cir. 1982). Here, Matthew Miller

testified that he had been to the parking lot of Siebenthaler’s where J.C. was servicing the backhoe

before the accident occurred. Tr. 563. He further testified that the ground composition prior to

the accident was the same as the day of the accident. Id. His expressed belief that the ground

was suitable does not negate his knowledge of the physical conditions constituting the alleged

violation. Therefore, knowledge is established.

   The exposure of J.C. to the hazards that 29 C.F.R. § 1910.244(a)(2)(i) was designed to

prevent is not disputed. The record clearly reflects that J.C. died while servicing tires on a

backhoe using at least one jack. Employee exposure is established.

                   Alleged Violation of 29 C.F.R. § 1910.244(a)(2)(iii)

Citation 1, Item 3 alleges a violation of 29 C.F.R. § 1910.244(a)(2)(iii) which states: “After the

load has been raised, it shall be cribbed, blocked, or otherwise secured at once.”

   Specifically, the Citation alleges that the deceased employee was exposed to a

caught-in-between hazard due to the unsecured load of the JCB 4CX Backhoe once he initially

raised the rear of the backhoe with two 20 ton air hydraulic jacks and one 22 ton jack stand to

remove the two rear tires.

   Based on the Secretary’s allegations and the language of the cited standard, the “load” in

this instance is the backhoe. Employing the same analysis used in the discussion of the previous

standard, I find that the standard applies.

                                            26

CO Lopez testified that Grismer was cited under this standard because the backhoe was

raised. Tr. 131. It was not secured in place to prevent it from sliding or tipping over. Id. Also,

it was not blocked adequately to ensure that it would not tip or fall over. Id. Although he

conceded that there were no eyewitnesses to the accident, CO Lopez speculated that the backhoe

must have been raised because one can’t remove the tire without raising the backhoe. Tr. 133.

CO Lopez stated that the standard required that the backhoe be blocked, cribbed, or secured with at

least two jack stands or a sufficient number of blocks of wood. Tr. 133-34. With regard to the

equipment used to “crib, block, or secure” the backhoe, CO Lopez recalls two wood blocks

(6x6x20) and some wedges. Tr. 140. In an email exchange with CO Lopez, Lt. Baumgartmer

stated, “all those 20 4x4s and various wedges belong to the MCFD.” CX-49. “There were two

6x6 (possibly 8x8) pieces of wood that were not ours that were farther under the backhoe near the

person…[t]hose did not belong to us.” Id. However, on cross-examination, Lt. Baumgartner

conceded that he couldn’t say with certainty which cribbing belonged to someone other than

MCFD. Tr. 64. According to CO Lopez, the photo marked as CX-33 depicts a floor jack that

was under the backhoe along with two hydraulic jacks next to it. Tr. 97. The jack stand under

the backhoe had a warning label that stated it should be used in a pair. Tr. 98. With regard to

other means of “securing the load”, CO Lopez testified that the photo marked as CX-24 shows the

backhoe outrigger in an upright position. Tr. 85. He stated that the outrigger was raised

approximately 6”. Tr. 86. He testified that the photo marked as CX-27 depicts the backhoe with

the right tire removed and the outrigger in the upright position. Tr. 90. The testimony

concerning the position of the outriggers suggests that they were not being used by J.C. to secure

the backhoe. However, use of the outriggers to secure the load is not mandated by this standard.

CO Lopez testified that he saw no blocks or cribbing on the stake bed. Tr. 88. However, the

                                            27

record reveals that CO Lopez did not examine all of the contents of the stake/flatbed truck. Lt.

Baumgartner testified that the photo marked as CX-5 showed cribbing blocks and a floor jack that

belonged to MCFD. He further testified that the blocks of lighter wood belonged to MCFD. Tr.

39. Also he stated that some, but not all, of the cribbing that belonged to MCFD had markings

such as blue or yellow bands. Tr. 51-54. Lt. Baumgartner conceded that he did not know if there

were crib blocks on J.C.’s flatbed truck. Tr. 37. During his testimony, Lt. Baumgartner went on

to describe the equipment reflected in photographs marked as exhibits by the Secretary:

    •       CX-11 – photo of a red jack already on the scene when first responders
    arrived. Tr. 42-43;

    •       CX-15 – shows more cribbing and wedges all belonging to MCFD.

    Taken altogether, the testimony of CO Lopez and Lt. Baumgartner appear to establish that

J.C. didn’t have the equipment necessary to “crib, block, or secure” the backhoe while he was

servicing the tires.

 However, the record reveals that MCFD had to disturb the scene during its efforts to free J.C.

Tr. 62, 66. In fact, by the time CO Lopez arrived on the scene at Siebenthaler’s, J.C.’s body had

already been removed from under the backhoe. Tr. 89. According to Leonard Willenbrink,

there were so many fire departments, EMTs, and police along with a big crowd that, at one point,

he couldn’t see anything. Tr. 162. In response to an inquiry by the undersigned, CO Lopez

stated that he didn’t get on the flatbed equipment truck and did not take pictures showing the back

of the truck. Tr. 777. He further stated, “I didn’t know there was [sic] things behind the air

compressor at that time.” Tr. 778. When confronted with his interview statement, Andrew

Jones again confirmed that he saw two bottle jacks under the backhoe along with a couple of

wooden blocks. Although his interview statement reflects that there was one bottle jack under on

each side of the axle; he couldn’t remember the exact placement when asked at the hearing. Tr.

                                            28

175-77. Mr. Jones testified that the backhoe’s outrigger stabilizers were up. Tr. 177. However,

he also testified that the whole machine was tilted from the blocks and the backhoe was nearly on

its axle where the tire was dismounted. Tr. 178. Mr. Hupp testified that once he informed J.C.

that he should take the tires back to Grismer and work on them in the shop, J.C. started getting his

tools together and putting them on the truck. Tr. 265. Mr. Hupp’s testimony supports Matthew

Miller’s contention that there was equipment already on the flatbed behind the tires. Given the

fact that there were no eyewitnesses, J.C. was observed putting tools back on the truck, there were

multiple first responders on the scene when CO Lopez arrived, and the scene had been disturbed in

order to extricate J.C.’s body, it is reasonable to believe that equipment was moved from its

original position before the accident. Moreover, Miller testified that he conducted a routine

inspection of the equipment on the stake/flatbed truck prior to J.C.’s departure for Siebenthaler’s

to service the tires on the backhoe. Tr. 557. According to Miller, J.C. had everything he needed

to do the job to include: two jack stands; plenty of cribbing; Murphy’s soap to seat the tire; two

pneumatic jacks, a smaller (hand crank) jack, a plate, his gun [sic], sockets etc. Tr. 557-58. As a

whole, the evidence suggests that J.C. had the necessary tools. Also, because there were no

eyewitnesses and the scene was disturbed before the investigation, we just don’t know whether the

backhoe was appropriately cribbed, blocked, or otherwise secured as required by this standard.

Additionally, CO Lopez’s incomplete examination of the accident scene leaves open the

possibility that Mr. Miller’s account of the equipment on the flatbed truck before and after the

accident could be true. Accordingly, I find that the Secretary has failed to establish a violation of

29 C.F.R. § 1910.244(a)(2)(iii) by a preponderance of the evidence.

   With regard to Respondent’s knowledge of the alleged violation, the Secretary has failed to

establish actual or constructive knowledge. CO Lopez testified that another employee of

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Grismer, Robert Hupp, was on site at Siebenthaler’s on the day of the accident to ensure that the

tires on the backhoe were marked before being sent back to the manufacturer. Tr. 142.

However, Mr. Hupp arrived around 10:00 a.m., before the accident, and observed J.C. struggling

in the heat while attempting to dismount a tire from a steel rim. Tr. 264. The record is unclear

with regard to whether one or both tires had been removed while Mr. Hupp was on site. The

record is also silent regarding any cribbing, blocking, or securing of the backhoe at the time Mr.

Hupp was present. However, we do know that Mr. Hupp was not present when the load/backhoe

fell because there were no eyewitnesses. The Secretary has not established actual knowledge of

the alleged violative condition. With respect to constructive knowledge the Secretary establishes

it by showing that an employer could have known of the violative conditions if it had exercised

reasonable diligence. In Pride Oil Well Service, 15 BNA OSHC 1809 (No. 87–692, 1992), the

Review Commission set forth criteria to be considered when evaluating reasonable diligence.

Reasonable diligence involves several factors, including an employer's “obligation to inspect the

work area, to anticipate hazards to which employees may be exposed, and to take measures to

prevent the occurrence.” Frank Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76–4627, 1981).

Several factors are considered to determine if an employer exercised reasonable diligence. These

include the “employer's obligation to have adequate work rules and training programs, to

adequately supervise employees, to anticipate hazards to which employees may be exposed, and to

take measures to prevent the occurrence of a violation.” Precision Concrete Constr., 19 BNA

OSHC 1404, 1407 (No. 99-0707, 2001) (citing Pride Oil Well Serv., 15 BNA OSHC 1809-1814

(No. 87-0692, 1992). Because corporate employers can only obtain knowledge through their

agents, the actions and knowledge of supervisory personnel are generally imputed to their

employers, and the Secretary can make a prima facie showing of knowledge by proving that a

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supervisory employee knew of or was responsible for the violation.” Todd Shipyards

Corporation, 11 BNA OSHC 2177, 2179 (No. 77–1598, 1984).

 The record establishes that Mr. Hupp was the only other Grismer employee on site at

Siebenthaler’s prior to the accident. After observing J.C., he called Mr. Miller to ask if he could

bring the tires back to Grismer to work on them in the shop. Tr. 265. When Miller agreed, Hupp

informed J.C. and observed him putting his equipment back on the truck. Id. Based on his

actions and observations, Mr. Hupp had no reason to know that an accident would occur because,

as alleged by the Secretary, the backhoe was not secured.

 Regarding its obligation to adequately train and supervise J.C., the evidence does not

establish that Grismer’s safety program was deficient. To the contrary, it reveals that Grismer

provided training designed to teach its employees, including J.C., how to service tires safely. Tr.

481. Additionally, every employee, including J.C., completed the TIA CTS-200 training on the

very first day of work at Grismer. Tr. 482. Moreover, Grismer provided J.C. with training

orientation on a variety of safety topics at the beginning of his employment. RX-5, at 2. With

regard to supervision, Mr. Miller clearly testified that he made field visits to observe service

technicians once a month and when he did so, he stayed the entire time. Tr. 546-47.

Specifically, he observed J.C. service a backhoe at least twice; one of those observations was made

shortly before the accident. Tr. 548-49. In fact, J.C. had replaced the front and back tire(s) on

the backhoe at Siebenthaler’s on separate occasions while being observed by a service manager.

There were no problems on either occasion. Tr. 555-56. In fact, Mr. Miller testified that J.C.

was chosen for the job at Siebenthaler’s because it “was his strength.” Tr. 556. Grismer’s

company protocol required Mr. Miller to check the trucks every Saturday to ensure that service

technician had the equipment needed and that it was in good working order. Tr. 562. Every

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Tuesday, replacement equipment was ordered. Id. Also, there was a TIA training manual

behind the driver’s seat of the flatbed carrying J.C.’s tools. Tr. 568. The training manual was

customarily kept in this location. Tr. 569. Based on the foregoing, I find that Grismer provided

adequate supervision to J.C. I further find that Grismer had adequate work rules and training

programs. Finally, I find that Grismer took appropriate measures to anticipate hazards to which

employees may be exposed, and to prevent the occurrence of a violation. Accordingly, the

Secretary has failed to establish “knowledge” of the alleged violative condition.

   The exposure of the deceased, J.C., to the hazards that 29 C.F.R. § 1910.244(a)(2)(iii) was

designed to prevent is not disputed. The record clearly reflects that J.C., died while servicing tires

on a backhoe using at least one jack. Employee exposure is established.

               FINDINGS OF FACT AND CONCLUSIONS OF LAW

   The foregoing constitutes the findings of fact and conclusions of law in accordance with

Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

     Items 1, 2, and 3 of Serious Citation 1, alleging violations 29 C.F.R.

     §§ 1910.177(c)(1)(i), 1910.244(a)(2)(i), and 1910.244(a)(2)(iii) respectively are

     VACATED.




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/s/
Keith E. Bell
Judge, OSHRC

Dated: August 9, 2016
Washington, D.C.

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