Heat Transfer Products Group, LLC.

Plain-English summary

Heat Transfer Products used permanent aisles shared by forklifts and pedestrians at its Alabama manufacturing plant. Painted orange lines separated pedestrian routes from forklift lanes, but the markings had become severely faded or disappeared in some areas. The judge found that the standard applied to both types of permanent aisles and that the degraded markings did not adequately identify safe travel paths. The serious violation of 29 C.F.R. § 1910.176(a) was affirmed. Because the company used several other forklift-safety measures and the violation's gravity was low, the proposed $4,590 penalty was reduced to $450.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.176(a)
• Outcome: The serious aisle-marking item was affirmed, and the penalty was reduced from $4,590 to $450.
• Key point: Permanent pedestrian and forklift aisles must remain marked clearly enough to identify their boundaries, even when other traffic controls are in place.

Full text (OSHRC public release)

        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
              1924 Building - Room 2R90, 100 Alabama Street, S.W.
                          Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 16-0289

Heat Transfer Products, LLC,
Respondent.

Appearances:

     Thomas J. Motzny, Esquire, U.S. Department of Labor, Office of the Solicitor,
     Nashville, Tennesse
            For the Secretary

     Carla J. Gunnin, Esquire, Jackson Lewis, P.C., Atlanta, Georgia
             For the Respondent

BEFORE: Administrative Law Judge Heather A. Joys

                               DECISION AND ORDER

     This proceeding is before the Occupational Safety and Health Review Commission

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 (the
Act). Heat Transfer Products, Inc., (hereinafter “HTP”) is a manufacturer of refrigeration
equipment components. Beginning October 5, 2015, Occupational Safety and Health
Administration Compliance Officer (CSHO) Benjamin Bailey conducted an inspection of HTP at
its facility in Scottsboro, Alabama. Based upon CSHO Bailey’s inspection, the Secretary of
Labor, on January 19, 2016, issued a Citation and Notification of Penalty alleging one serious
violation of 29 C.F.R. § 1910.176(a) for failure to have visible floor markings for permanent
aisles used by powered industrial trucks and pedestrians. The Secretary proposed a penalty of
$4590.00 for the Citation. HTP timely contested the Citation. Both the violation and penalty are
at issue.
 A hearing was held in this matter on July 22, 2016, in Decatur, Alabama. The
proceedings were conducted pursuant to the Commission’s Simplified Proceedings. 29 C.F.R.
§§ 2200.200-211. The parties presented oral arguments at the close of the hearing and were
afforded the opportunity to submit written supplementary statements. HTP timely submitted a
letter brief. The Secretary notified the court he would not be submitting a written supplementary
statement.
For the reasons that follow, the citation is affirmed and a penalty of $450.00 is assessed.

                                              Jurisdiction

    At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the

Commission pursuant to § 10(c) of the Act (Tr. 7). HTP also admits that at all times relevant to
this action, it was an employer engaged in a business affecting interstate commerce within the
meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 7). Based on the stipulations and evidence
presented at the hearing, I find the Commission has jurisdiction of this matter and HTP is
covered under the Act.

                                              Background

    HTP is an Alabama based manufacturer of component parts of commercial refrigeration

equipment (Tr. 93). It is owned by Rheem Manufacturing Company (Tr. 25). The inspection at
issue took place at HTP’s facility in Scottsboro, Alabama, that has approximately 280 employees
(Tr. 25). Nationally, the company has 12,000 employees (Tr. 25).

    On October 5, 2015, CSHO Bailey 1 began an inspection of HTP’s Scottsboro facility (Tr.

20). He was assigned to conduct the inspection after the OSHA Birmingham Area Office
received an employee complaint (Tr. 20). Among other things, the complaint alleged employees
in the facility were exposed to hazards associated with obstructed aisles and with pedestrian and
forklift traffic using the same aisles (Tr. 20). 2 After holding an opening conference with

1
CSHO Bailey has been employed by OSHA for six years (Tr. 15). He was a safety compliance officer in the Air
Force from which he retired in 2004 after serving 23 years (Tr. 15). After retiring from the military, CSHO Bailey
worked for several private employers prior to working for OSHA (Tr. 16-18). He holds a bachelor’s degree in
professional aeronautics and a master’s degree in occupational safety and health (Tr. 18).
2
There is a dispute of fact between the parties whether CSHO Bailey presented a copy of the complaint to
representatives of HTP at any time during the inspection or otherwise informed HTP management the complaint
addressed floor markings. CSHO Bailey testified he provided the complaint and told HTP representatives the

                                                     2

representatives of HTP, CSHO Bailey conducted a walk around inspection of the facility (Tr. 20-
24, 26). Kristi Yates, HTP’s environmental health and safety manager, accompanied CSHO
Bailey on the walk around (Tr. 94). CSHO Bailey estimated he spent 5 ½ hours at the facility
(Tr. 25).

     According to CSHO Bailey, the complaint items focused on aisles in the facility’s storage

area. In that area, CSHO Bailey observed both perimeter aisles and larger main aisles that ran
through the center of the facility (Tr. 26). CSHO Bailey noted both forklift and pedestrian traffic
in both areas. He found the aisles sufficiently wide for the traffic involved and described the
facility as “relatively well lit.” (Tr. 27, 41). He noted yellow painted lines on the floor indicating
the perimeter of the aisles and orange painted lines separating forklift aisles from pedestrian
aisles (Tr. 31, 33). He inquired whether there was a policy regarding where pedestrians were to
walk, to which Ms. Yates responded yes (Tr. 27-28). At the hearing, Ms. Yates testified
employees are trained to walk in the pedestrian aisles demarcated with orange lines (Tr. 103,
105; 111; 113; 118). 3

     During his walk around the facility, CSHO Bailey saw areas where the orange lines were

barely visible or completely worn off (Tr. 29-30, 33). He photographed these areas (Exhs. S-1;
S-2; and S-3). He testified these were areas where he observed both forklift and pedestrian
traffic (Tr. 32-35). Ms. Yates later informed CSHO Bailey HTP was in the process of repainting
the lines on the floor. Ms. Yates testified that due to wear and tear, the company finds it
necessary to repaint the floor markings twice per year (Tr. 101). She further testified the aisles
have remained in the same locations for 10 or 11 years (Tr. 102). Several months following the
inspection, Ms. Yates provided the OSHA Birmingham Area Office with photographs showing
the newly painted floor markings (Tr. 44, 98; Exhs. S-12 and S-13).

     CSHO Bailey also observed employees not following the rule to walk within the orange

complaint addressed floor markings, among other things. Kristie Yates, HTP’s only witness, testified she was never
provided a copy of the complaint despite requesting one and was never informed floor markings were the subject of
the complaint. Nothing in the Act or regulations requires the Secretary or his representative to provide an employer
with a copy of an employee complaint before conducting an inspection. HTP does not argue its consent to the
inspection was not voluntary or obtained through fraud or deceit. Therefore, I do not find the issue material. HTP
argues this is an issue of witness credibility. No material fact is in dispute that requires a resolution of credibility.
3
Ms. Yates was somewhat equivocal on the specific training provided but did concede on cross examination and
redirect employees were told pedestrian walkways were marked by orange lines (Tr. 113; 118).

                                                        3

lines. He observed one large group of employees traveling on foot from a work area to a break
area using the center of the aisle (Tr. 23; 47-48). He testified this occurred in an area that was
not well marked (Tr. 23). At another time, he observed and photographed one employee walking
on the side opposite the designated pedestrian aisle (Exh. S-3). He did not testify he observed
forklifts operating in pedestrian aisles. Ms. Yates testified she was unaware of anyone having
been disciplined for an infraction of the rule requiring pedestrians to remain in designated
pedestrian aisles (Tr. 111).

   Ms. Yates testified HTP has identified the use of the aisles by both forklifts and

pedestrians as a potentially hazardous situation (Tr. 108; 114). In order to minimize this hazard,
in addition to marking the separate aisles by painted lines, HTP has equipped the forklifts with
LED lights to increase visibility (Tr. 83-84; 106-07); a governor that prevents travel over 6 mph
(Tr. 108); and horns that employees are trained to sound at intersections or blind corners (Tr. 84;
104). CSHO Bailey testified he heard forklift drivers using their horns frequently during his
inspection. Convex mirrors are located throughout the facility to help both forklift drivers and
pedestrians see oncoming traffic (Tr. 108). Blue lights illuminate when doors are opened as a
warning to drivers (Tr. 81-82; 106).

   As a result of his observation of the poor condition of the floor markings for pedestrian

aisles, CSHO Bailey recommended a citation be issue alleging a violation of the standard at 29
C.F.R. § 1910.176(a). HTP timely contested the citation.

                                          Analysis

                                        The Citation

   The Secretary has the burden of establishing the employer violated the cited standard.

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 cited
employer either knew or could have known with the exercise of reasonable diligence of the
violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

   The citation alleges a serious violation of 29 C.F.R. § 1910.176(a) which requires,



                                              4

Where mechanical handling equipment is used, sufficient safe clearances shall be
allowed for aisles, at loading docks, through doorways and wherever turns or
passage must be made. Aisles and passageways shall be kept clear and in good
repair, with no obstruction across or in aisles that could create a hazard.
Permanent aisles and passageways shall be appropriately marked.

The citation alleges,

   On or about October 05, 2015 - Manufacturing plant, some aisles and
   passageways for pedestrians and forklift traffic were severely faded and/or
   blocked making it difficult to safely determine where pedestrians and forklift
   traffic should walk/operate.

CSHO Bailey testified the citation addressed aisles in the storage area of the facility that are
depicted in Exhibits S-1, S-2, and S-3.

                             Applicability of the Standard

   The standard generally applies to any area where “mechanical handling equipment is

used.” HTP does not dispute forklifts are used in the cited areas.

   The obligation to mark aisles only applies, under the terms of the standard, to those aisles

that are permanent. In General Electric Company, 3 BNA OSHC 1031 (No. 2739, 1975), the
Commission addressed the conditions under which aisles are considered permanent, requiring
them to be marked in accordance with § 1910.176(a). Reversing the ALJ’s vacatur of the
citation, the Commission rejected the ALJ’s conclusion the unmarked aisles were not permanent
because they were in a temporary storage facility. General Electric, 3 BNA OSHC at 1047. The
Commission went on to find the aisles, which were intended for egress in case of emergency,
met the requirement of permanent aisles that were to be marked under the standard. Id. at 1048.
In addressing the meaning of the term “permanent,” the Commission wrote

   In the sense of the standard, “permanent” obviously does not mean forever. It
   must be construed in light of the objective of the standard – here provision for
   marked ways of egress in case of emergency. It suggests any duration other than
   transitory. Id.
   HTP cites Anchor Hocking Glass Company, Inc., 17 BNA OSHC 1644 (No. 94-0178,

1996), in which Judge Michael Schoenfeld vacated a citation alleging a violation of §

                                            5

1910.176(a) for failure to mark certain pedestrian walkways. 4 While rejecting the Respondent’s
argument the standard was not intended to protect pedestrians, Judge Schoenfeld vacated the
citation on the ground the standard makes no distinction between aisles for forklifts and
walkways for pedestrians. For that reason, he concluded the standard cannot be found to require
markings for both. 5 He further reasoned, even if the standard did require markings for both, the
Secretary had failed to establish the pedestrian walkways were permanent.

     I agree with Judge Schoenfeld’s conclusion the standard was intended to protect

pedestrians as well as forklift drivers. 6 I disagree with his conclusion the standard does not
require the employer to appropriately mark pedestrian aisles. It simply does not follow from his
premise that because the standard fails to distinguish between aisles used by forklifts and aisles
used by pedestrians in the same areas, only the forklift aisles need be marked. Where material
handling equipment is used, the standard only limits applicability to those aisles that are
permanent. It follows in an area in which forklift and pedestrian traffic are separated by
permanently designated aisles, the standard requires that separation be appropriately marked
because it demarcates the parameters of the forklift aisle as well as the pedestrian aisle. In the
instant case, the orange lines at HTP’s facility did not simply identify pedestrian aisles, it
signaled to forklift drivers where they were to drive.

     Ms. Yates testified the aisles at the facility had been in the same location for 10 to 11

years. She stated the designation of forklift and pedestrian aisles have been in place for that
same amount of time (Tr. 102). Employees are trained at hire and annually thereafter to walk in
the designated pedestrian aisles. HTP’s New Employee Environmental Health and Safety

4
Judge Schoenfeld’s decision is an unreviewed ALJ decision and, consequently, is without precedential value. HTP
cites to the decision as instructive.
5
In contrast to Judge Schoenfeld’s reasoning, Judge David Harris, in Pep-Com Industries, Inc., 1979 WL 7981 (No.
78-4177, 1979), affirmed a violation of the same standard for not marking pedestrian walkways. In doing so, he
relied solely on the CSHO’s unrebutted testimony that he observed forklifts and pedestrians in the same area. Judge
Harris provides little analysis of the issue.
6
Despite directing the court’s attention to Judge Schoenfeld’s decision, HTP argued in its letter brief the standard
does not apply to pedestrians. In so arguing, HTP draws a distinction between §1910.22(b) (under Subpart D -
Walking and Working Surfaces), and § 1910.176(a) (under Subpart N - Materials Handling and Storage). HTP does
not argue, as it could have, that § 1910.22(b)(2) is the more applicable standard. Rather, HTP argues the use of the
term “appropriately marked” fails to provide the employer notice of what actions it must take to be in compliance.
Because § 1910.176(a) and § 1910.22(b)(2) contain identical language, HTP’s position would necessarily be that
neither passes muster.

                                                     6

Orientation materials specify the existence of separate designated aisles for pedestrians (Exh. R-
1 pp. 8-9). The evidence establishes both the forklift and pedestrian aisles were permanent as
that term is used in the standard. The standard applies.

                                Failure to Comply with the Standard

       To establish HTP failed to comply with the standard, the Secretary has the burden to

show the condition of the orange lines demarcating the pedestrian walkways was not appropriate
marking. The requirement for appropriate markings is discussed in few Commission decisions.
See Hughes Tool Company, 6 BNA OSHC 1366 (No. 15086, 1978) 7; and Paper Products
Company, Inc., 2 BNA OSHC 1126 (No. 2987, 1974). 8 Although there are numerous
unreviewed ALJ decisions addressing allegations of violation of § 1910.176(a), few address the
specific question at issue here of what constitutes appropriate markings.

       Interpretations and guidance from the Secretary provide no more definitive answer to the

question of what constitutes appropriate markings. In a 1973 interpretative document referenced
by the Commission in Hughes Tool, the Secretary answered the question “What is meant by
appropriately marked aisles?” as follows:

       The standard is intentionally vague because there are many ways aisles could be
       appropriately marked. For example, racks define aisles because all areas between
       the racks are aisles. Striping and signs also are good ways to mark aisles.

Hughes Tool, 6 BNA OSHC at 1368, citing Qs. and As. to Part 1910, OSHA 2095, December
1973, reprinted at CCH Employment Safety and Health Guide, para. 1115.13. HTP cites to other
guidance documents issued by the Secretary that contain similar language (E-Tools for Powered
Industrial Trucks (Exh. R-2); Standard Interpretation - § 1910.22(b) (Exh. R-4); and STD 01-01-
004, 29 CFR 1910.22(b)(2), Marking of Aisles and Passageways (Exh. R-5)). The E-Tool for
Powered Industrial Trucks suggests measures such as railings, barriers, or painted lines
demarcating pedestrian walkways for protecting pedestrians where forklifts are operated under §

7
In Hughes Tool, cited by HTP, the two-member Commission was not able to reach agreement on disposition of
the citation alleging a violation of § 1910.176(a). Although the Commissioners agreed painted lines were not the
sole method by which aisles may be appropriately marked, they differed as to whether the method used by the
employer was adequate. They were also unable to agree whether obstructions in the aisles created a hazard. The
decision is of limited precedential value.
8
Paper Products Company contains no discussion of the requirements of the standard.

                                                      7

1910.176(a) (Exh. R-2 p. 2). The Standard Interpretation and STD 01-01-004 (Exhs. R-4 and R-
5) contain interpretations of the identical language found at 29 C.F.R. § 1910.22(b). 9 The
Standard Interpretation states,
The lines used to delineate the aisles may be any color so long as they clearly
define the area considered as aisle space. The lines may be composed of dots,
square, strip or continuous, but they too must define the aisle area. (Exh. R-4)

STD 01-01-004 reads,
The intent of “appropriately marked” is not to restrict the markings to one method
only….Painted lines remain the most feasible method of marking, where
practical, since they may last several years without maintenance or repainting.
Other appropriate methods such as marking pillars, powder stripping, flags, traffic
cones or barrels are acceptable, when the training programs for vehicle operators
and employees include the recognition of such markings. (Exh. R-5)

HTP argues because none of these documents “provide clear guidance of what it takes to
comply” the standard is “unconstitutionally vague.” I disagree.
A standard is not unconstitutionally vague or otherwise unenforceable simply because it
does not specify the exact method of compliance applicable to every set of circumstances. The
term “appropriately” means “suitable or fitting for a particular purpose.” Webster’s New
Collegiate Dictionary. The Secretary’s guidance recognizes different workplaces may require
different types of markings. In using the word “appropriately,” the standard is akin to a
performance standard. “Under Commission precedent, ‘because performance standards ... do not
identify specific obligations, they are interpreted in light of what is reasonable.’” Central Florida
Equipment Rentals, Inc., 2016 WL 4088876 (No. 08-1656, 2016) at p. 6, quoting Thomas Indus.
Coatings, Inc., 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007). Consistent with the purpose of
the standard, appropriate markings are those suitable to the environment that a reasonable person
would find sufficient to put employees on notice of the location of the aisles and how to make
safe passage. See General Electric, 3 BNA OSHC at 1048.

     HTP chose to use painted lines to demarcate forklift and pedestrian aisles. HTP used no

9
The standard at § 1910.22(b) is titled “Aisles and Passageways.” Section 1910.22(b)(1) states,
Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for
aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles
and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that
could create a hazard.
Section 1910.22(b)(2) states, “Permanent aisles and passageways shall be appropriately marked.”

                                                      8

other method of delineating forklift from pedestrian aisles (Tr. 117). The Secretary does not
challenge the use of painted lines as appropriate markings; rather the Secretary points to at least
two locations observed by CSHO Bailey, where those lines were no longer sufficiently visible to
put employees on notice of the delineation of forklift and pedestrian aisles. To a reasonable
observer, the condition of the lines depicted in Exhibits S-1 and S-2 are so degraded they fail to
meet that standard. 10 In those areas, an employee unfamiliar with the facility told to use
designated pedestrian aisles would not know where to walk to stay out of the forklift aisles. 11
Similarly, forklift drivers would not know what the limits of the forklift aisles were. In those
specific locations, permanent aisles were not appropriately marked. HTP failed to comply with
the requirements of the standard.

                                Employee Exposure to the Hazard

     To establish exposure to the hazard, the Secretary must show employees had access to the

“zone of danger.” Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 811 (3d Cir. 1985); and
Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). CSHO Bailey testified he observed
employees walking outside of pedestrian aisles and in the forklift aisles in areas where the aisle
markings had been severely degraded. Where floor markings are degraded or non-existent
pedestrians or forklift drivers unfamiliar with or new to the facility could be confused or simply
unaware of which aisles to use, exposing pedestrians to the hazard of being struck by a forklift
(Tr. 44-45). The evidence establishes employees were in the zone of danger and exposed to a
struck by hazard.

     HTP argues it took measures to reduce or even eliminate employee exposure to the

hazard of being struck by a forklift. Such efforts may reduce the likelihood of an accident
occurring, but do not establish a lack of employee exposure. Because employees are both
walking and driving forklifts in the same area, employees continue to be exposed to a struck by

10
Ms. Yates took photographs concurrent with CSHO Bailey. She testified the lines appear brighter in her
photographs (Tr. 117). HTP did not submit these photographs into the record. Where a party does not submit
evidence within its control, an inference can be drawn the evidence would not be in its favor. Capeway Roofing
Systems, Inc., 20 BNA OSHC 1331 (No. 00-1968, 2003) (citations omitted); see also Regina Contr. Co., 15 BNA
OSHC 1044, 1049 ((No. 87-1309, 1991).
11
I reject HTP’s suggestion the Secretary had the burden to present evidence of specific employees who were
unaware of where the pedestrian aisles were to establish the inadequacy of the markings. The totality of the
evidence is sufficient to draw this inference. Moreover, the fact employees failed to observe the requirement to use
pedestrian aisles suggests the markings were insufficient to notify employees of their existence and location.

                                                     9

hazard.

                                    Employer Knowledge

      To establish employer knowledge of a violation the Secretary must show the employer

knew, or with the exercise of reasonable diligence could have known of a hazardous condition.
Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). 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 a supervisory employee knew of or was
responsible for the violation. Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598,
1984); see also Dun Par Engineered Form Co., 12 BNA OSHC at 1966 (the actual or
constructive knowledge of an employer’s foreman can be imputed to the employer). Actual
knowledge refers to an awareness of the existence of the conditions allegedly in noncompliance.
Omaha Paper Stock Co., 19 OSHC 2039 (No. 01-3968, 2002). I find the Secretary has
established HTP had knowledge of the violative condition.

      There is no dispute HTP was aware pedestrians and forklifts used the same aisles. This

fact was recognized in the company’s training materials (Exh. R-1). The condition of the lines
demarcating the pedestrian aisles was in plain sight. Ms. Yates informed CSHO Bailey HTP was
in the process of repainting the floor lines, indicating she was aware of the condition of the lines
(Tr. 100). The Secretary has established HTP was aware of the violative condition.

                                        Classification

      The Secretary alleges the violation was serious. A violation is serious when “there is a

substantial probability that death or serious physical harm could result” from the hazardous
condition at issue. 29 U.S.C. § 666(k). The Secretary need not show that there was a substantial
probability that an accident would occur; only that if an accident did occur, death or serious
physical harm would result. There can be little dispute a pedestrian being hit by a moving
forklift would likely result in serious injury, such as broken bones (Tr. 50). The actions taken by
HTP would reduce the likelihood of an accident occurring, but are not likely to lessen the
severity of injury should an accident occur. The Secretary has established the violation was
serious.

                                              10

Penalty Determination

     The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC

1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp.,
17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty
amounts but places no restrictions on the Commission’s authority to raise or lower penalties
within those limits.”), aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the
Commission gives due consideration to all of the statutory factors with the gravity of the
violation being the most significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform Inc., 19
BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 152 (5th Cir. 2002)
(unpublished). “Gravity is a principal factor in a penalty determination and is based on the
number of employees exposed, duration of exposure, likelihood of injury, and precautions taken
against injury.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-
1052, 2005). Section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to
give due consideration to the gravity of the violation and the employer’s size, history of
violation, and good faith. Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475,
2007).
The Secretary proposed a penalty of $4590.00 for the violation. I do not agree the
circumstances warrant such a high penalty. HTP took many precautions to prevent forklift
accidents at its facility. Aisles were sufficiently wide to allow forklifts and pedestrians to safely
pass simultaneously. HTP equipped forklifts with governors that prevent speeding, as well as
warning lights and horns. CSHO Bailey testified the facility was well lit, and with the exception
of the painted lines, the aisles were in good repair. The Secretary presented little evidence of the
number of exposed employees or the frequency and duration of exposure. Based on the evidence
presented, the gravity of the violation is low. There was no evidence HTP has a history of prior
serious violations (Tr. 52). HTP representatives were cooperative with the inspection and,
according to CSHO Bailey, its safety policies and programs show good faith efforts toward
safety compliance (Tr. 51). Taking all these factors into consideration, as well as the size of the
company, a low gravity-based penalty of $450.00 is appropriate.

                                             11

FINDINGS OF FACT AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

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

                                            ORDER

   Based upon the foregoing decision, it is ORDERED that: Item 1, Citation 1, alleging a

serious violation of 29 C.F.R. § 1910.176(a) is affirmed, and a penalty of $450.00 is assessed.

   SO ORDERED.                                  /s/
                                                Judge Heather A. Joys

Date: September 1, 2016 Administrative Law Judge
Atlanta, Georgia

                                           12