Richard Carrier Trucking, Inc.

Plain-English summary

Richard Carrier Trucking drivers used pressurized canisters to spray diesel fuel inside timber trailers so wood chips would not freeze to the surfaces. OSHA alleged that the canisters were repurposed fire extinguishers and that the practice exposed employees to fire and burn hazards. The compliance officer who investigated the complaint did not testify, and the judge found her brief written account insufficiently reliable to prove that the spraying equipment had been manufactured as fire extinguishers. The company presented credible testimony and a plausible account showing that purpose-built pressurized canisters were used instead. Because OSHA did not prove an essential fact in its general duty clause theory, the judge vacated the citation.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Serious general duty clause item vacated; no penalty assessed.
• Key point: OSHA must prove the specific equipment and condition alleged to create the recognized hazard, not rely on an unsupported description in an absent inspector’s notes.

Full text (OSHRC public release)


Document

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.
1 6 - 1 655

RICHARD CARRIER TRUCKING, INC. ,

Respondent.

Appearances:    Attorney
James L. Polianites

U.S. Department of Labor,
Office of the Solicitor

Boston, Massachusetts

For the
Complainant

Mr.
Kris
M.
McKenna

Safety Manager ,
Richard Carrier Trucking , Inc.

Skowhegan, Maine

For the Respondent

Before:    William S. Coleman

Administrative Law Judge

DECISION AND
ORDER

The
Respondent,
Richard Carrier Trucking, Inc.
(RCT), is a
commercial
trucking company based in Skowhegan, Maine, whose business includes hauling timber. On April 18, 2016,
a compliance safety and health officer (CO)
from the area office of the Occupational Safety and Health Administration (OSHA)
located in Bangor, Maine,
conducted a complaint investigation
at RCT’s workplace in Skowhegan. The CO
concluded
that
some
of
RCT’s
truck
drivers had
engaged in the
practice of
putting diesel fuel in
portable
fire extinguishers, and then
spraying
the
fuel onto the interior
walls and
floors of their
trailers. The
reason for coating the interior surfaces of the trailers with diesel fuel was
to
prevent wood chips from sticking
to
those surfaces
in sub-freezing temperatures.

The Secretary
alleges
that RCT countenanced this
alleged
practice and thereby violated
section 5(a)(1) of the
Occupational Safety and Health
Act
of 1970 (Act), which is
commonly
known as
the
“general duty” clause.

29 U.S.C. § 654(a)(1).
On September 9, 2016,
OSHA
issued to RCT a
one-item
serious citation
arising out of
the
inspection,
which
alleged
the following violation of the general duty clause:

OSH Act of 1970 Section (5)(a)(1): The employer did not furnish employment in a place
of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to burns and other injuries due to fire extinguishers containing pressurized diesel fuel:

Worksite – A
2.5
gallon
Badger fire extinguisher served as an unapproved container for pressurized diesel fuel used by truck drivers to coat
the
trailer walls.

Among other methods, one feasible and acceptable abatement method to correct this hazard is to apply an approved non-stick or low friction surface to the trailer walls and floor in accordance with the manufacturer’s specification.

OSHA designated this alleged violation as “Citation 2 Item 1.” 1

RCT timely contested the citation and
thereupon
the
Secretary duly filed a complaint that
incorporated by reference the allegations of the citation quoted above.

Prior to the hearing, the Secretary filed a motion to amend the
complaint
to reflect the following changes
to
the originally filed citation [deletions are stricken through;
additions are underscored]:

Worksite – A
2.5 gallon
Badger
fire extinguisher served as an unapproved container for pressurized diesel fuel used by truck drivers to coat the trailer walls.

Among other methods, one feasible and acceptable abatement method to correct this hazard is to
apply an approved non-stick or low friction surface to the trailer walls and floor in accordance with the manufacturer’s specification
remove from service and not allow fire extinguisher to be used to spray diesel fuel on the trailer walls and floors .

RCT did not object to the pre-hearing amendment,
and the motion to amend was granted. (T. 6-8).

An evidentiary
hearing was conducted on June 15, 2017, in Bangor, Maine.

The Secretary presented
two witnesses
in his case-in-chief: the
assistant area director of
OSHA’s Bangor area office
(Samuel
Kondrup),
and RCT’s
safety
manager
(Kris McKenna), who
had been
present during the CO’s inspection. The Secretary did not present the testimony of the CO who had
investigated the complaint. She
had retired about six months
before the hearing. The
record is silent
as to
whether her attendance
at the hearing could have been secured
by
compulsory
process or other reasonable means.

RCT, in its case in chief, presented the testimony
Derek
DeFelice, who was present
during
the CO’s inspection
and whose position at that time
was “dispatcher.” At the time of the hearing,
DeFelice’s
position was
terminal manager. (Ex. C-2, p. 2; T. 77).

The parties filed simultaneous post-hearing briefs, and both opted not to file a brief in reply. The briefing
period
concluded on August 25, 2017. (T. 107).

As
set forth
below, the Secretary has
not met his burden to
prove by a preponderance of the evidence that
the
equipment
used to spray the diesel fuel
had been
manufactured
as a
fire extinguisher. There being insufficient evidence to establish a fact that is essential to proving the alleged violation,
the citation must be
vacated.

F indings of
F act

1. The
   Respondent,
   Richard Carrier Trucking, Inc.
   (RCT), is a
   commercial
   trucking company
   headquartered
   in Skowhegan, Maine, whose business includes hauling timber materials
   in commerce.

RCT has
about 600
employees
altogether,
about 70 of whom
are truck drivers involved in hauling timber materials.

(Ex. C-2).

2. On April 4, 2016, the
   OSHA area office in Bangor, Maine, received a complaint report ing
   that RCT
   drivers
   were
   using fire extinguishers to
   spray diesel fuel on the interior surfaces of
   their
   trailers. (T. 21 , 30 ).

3. On Friday, April 15, 2016,
   CO Hilda Chow
   from
   OSHA’s area office in Bangor, Maine,
   was
   assign ed
   to investigate the complaint.

S he conducted th e
investigation at RCT’s workplace in Skowhegan
on Monday, April 18, 2016 ,
over a period of about two hours and forty minutes. Among the persons she communicated with while at RCT were :
RCT’s safety manager
( Kris McKenna ) ;
RCT’s terminal manager at the time (Rick Tucker) ;
RCT’s dispatcher at the time
( Derek
DeFelice ) ;
and RCT’s owner (Richard Carrier) and his son (Jim Carrier) .

(Ex. C-2).

4. CO Chow retired from OSHA in December 2016 ,
   and she
   did not
   testify at the hearing.

(T. 30).

Consistent with the regular practice of her office, CO Chow
had
prepared documents and t aken
photographs incident to her in vestigation . Those materials were
received in evidence
without objection . ( Exs . C-2, C-3, C-4, & C-9).

5. The only OSHA official who testified
   at the hearing
   was the
   assistant area director for the
   Bangor area office
   (Samuel
   Kondrup ) , who
   had not been
   present
   at
   the
   inspection
   on April 18, 2016. His
   knowledge of CO Chow’s investigation
   of RCT
   was
   derived from
   what CO Chow told him and
   the documents that she
   had
   prepared .

( E.g. , T.
30,
34 , 56-57 ).

6. For many years prior to the
   investigation
   on April 16, 2016,
   some
   RCT truck drivers ha d
   engaged in the practice of coating the interior surfaces of trailers with diesel fuel . The diesel fuel
   act ed
   as a lubricant that
   prevent ed
   wood chips , sawdust and wood shavings
   from freezing
   on to those surfaces. (T. 79-80 , 94 ). When
   materials such as wood chips
   freeze onto the interior surfaces of trailers,
   the drivers must use hand tools to remove them, which is an
   arduous and time-consuming task. (T. 92-93).

O riginal ly, the drivers
applied the diesel fuel to the floors and walls of a trailer
by
pour ing
the fuel from
watering cans , such as
the kind
used
in
home
gardening . (Ex. C-4, p. 5; T. 81).

7. S ome time
   after 2009 , some RCT drivers
   began to use
   pressurized canisters
   to apply the diesel fuel . Using pressurized canisters
   enabled the
   drivers
   to
   spray
   the diesel fuel
   onto the surfaces . This avoided the use of a watering can
   to
   pour fuel
   while
   treading
   inside
   the trailer , whose floors
   could become
   treacherously
   sli ck
   from the diesel fuel . (T. 80-83 , 95-96 ).

When the pressurized sprayers were
empty and
not in use,
drivers stow ed
them
in an exterior stow
area .

(T. 83-84, 99-100; Ex. C-4, p.  5).

8. It takes about one gallon of
   diesel
   fuel to coat the interior surfaces of a trailer when using a pressurized sprayer, and up to two gallons when
   using
   a non-pressurized watering can. (T. 94-96).

9. The RCT drivers who used pressurized canisters to spray the diesel fuel obtained
   the canisters
   on their own initiative and at their own expense. (T. 102). The m anagement of
   RCT
   was
   aware of th e
   practice
   of using
   pressurized
   sprayers to apply
   diesel
   fuel ,
   and
   management
   neither encouraged
   n or discouraged
   the practice . (Ex. C-2, p. 2; T. 102).

10. In the course of
    her
    investigation
    on April 18, 2016, the CO
    inquired
    about
    the type of equipment that drivers were using to apply the diesel fuel to the trailer walls. There were no trailers at RCT’s
    Skowhegan workplace
    at the time of the CO’s inspection, so
    there was
    no spraying equipment
    available
    to
    show to the CO .

(T. 101-102).

RCT’s terminal manager at the time, Mr. Rick Tucker, was
aware that some drivers
had
obtain ed
the equipment
that
they
used to spray the diesel fuel
from
a
nearby
store named
Kennebec
Fire Equipment
(KFE). In an effort to
be responsive to the CO’s in quiry ,
Tucker
traveled
to
the
KFE
store
to try to
obtain the type of equipment that the drivers were purchasing there
to show to the
CO. (T. 65, 98).

11. When Tucker arrived at
    KFE , the store
    did not have in sto ck the type of equipment that
    had been
    s old to
    some
    RCT d rivers . Instead,
    the storekeeper supplied
    Tucker
    with a
    used
    2.5 gallon
    water-type
    fire extinguisher
    manufactured by a company
    named
    Badger Fire Protection . The storekeeper did this
    because
    the fire extinguisher
    had similarities
    to the kind of equipment the
    KFE
    store was selling to RCT truck drivers for spraying diesel fuel. (T. 65, 67). But
    in
    actuality, the
    sprayer s
    that K FE
    had been selling to RCT drivers
    were not
    fire extinguisher s ,
    even
    though they
    shared
    several
    features
    found in
    a typical water-type
    fire extinguisher. (T. 65-69, 72-73).

12. The fire extinguisher that Tucker obtained from K FE on April 18, 2016
    i s depicted in the photographs on pages 1 and 3 of
    Exhibit C-4. These photographs
    depict
    an unpainted
    stainless steel
    fire extinguisher that was
    obviously
    not new and far from being in pristine condition. Rather , its finish is worn and dull, and the in formational
    and warning decals that had been affixed to it were partially scrap ed
    off or
    rubbed
    away . (T. 69). The writings on what remained of those decals are
    indecipherable in the photographic exhibits, and might have been
    unreadable in actuality . The only decipherable decal in the photographs is the one bearing the logo of
    the manufacturer,
    Badger Fire Protection. ( See
    Ex. C-7).

13. Diesel fuel was never put in the
    fire extinguisher that Mr. Tucker obtained from K F E on April 16, 2016,
    and
    it was n ever
    used by any RCT employee for any purpose other than to show it to the CO. RCT returned the fire extinguisher to K FE
    on April 18, 2016,
    two days after the CO ’s inspection . (Ex. C-8; T. 73).

14. After the fire extinguisher that Mr. Tucker obtained
    at KFE
    was
    shown to the CO, the CO
    expressed the view that
    RCT
    drivers were using re-purposed fire extinguishers to spray the diesel fuel.

At least one RCT employee
disputed
th e CO’s
view
and stated that the spraying equipment that
RCT
drivers
had obtained
were
not
manufactured to be
fire extinguishers. (T. 101, 104-05).

15. RCT’s safety manager , Mr. Kris McKenna,
    did not challenge the CO’s impression that
    RCT
    drivers were using re-purposed fire extinguishers to spray the diesel fuel . A t th e time
    of the
    inspection,
    he
    was
    unaware that the drivers
    had been
    using any type of pressurized sprayers to apply the diesel fuel and he
    had no knowledge
    regarding
    whether any
    pressurized sprayer
    being
    us ed
    had been manufactured as
    a fire extinguisher. Once freezing temperatures subsided in the springtime, RCT drivers
    stopped
    spraying
    diesel fuel . McKenna
    did not
    begin to
    closely examine
    whether any drivers
    had been
    using re-purposed fire extinguishers until after
    July 18, 2016, when
    OSHA
    issued the first citation
    arising out of the inspection
    ( see
    footnote 1,
    supra ). (T. 52, 64, 105-106 ; Ex. C-3, p.1 ).
    Once McKenna began to look closely into the matter, he determined that
    the equipment
    that RCT
    drivers had purchased
    from KFE
    were
    spray canisters
    that
    had not been
    manufactured as
    fire extinguishers.

(T. 64, 72-73).

16. The
    type of
    equipment that
    some
    RCT drivers
    used to spray the diesel fuel
    was
    a cylindrical tank with a hose and nozzle
    that was
    capable of being pressurized ,
    similar to
    the type of sprayer
    that is depicted in Exhibit R-1. ( T. 80-81 , 84-85 ) .
    The
    cylinder depicted in Exhibit R-1 is pressurized by
    using
    its
    integrated
    hand
    pump , and
    it
    bears
    no label s
    or marking s
    to
    indicat e that
    it is a fire extinguisher . (T. 86 -87 ). Other
    varieties
    of
    sprayers
    that are not
    manufactured
    as
    fire extinguishers
    are
    pressurized
    by
    connecting a
    pressurized air hose to
    a valve on the
    sprayer ,
    in the same manner that
    the fire extinguisher
    that Tucker obtained from KFE i s pressurized . (T.
    89 -91 ) .

17. No
    RCT drivers ha d
    ever used a re-purposed fire extinguisher for spraying diesel fuel on the interior surfaces of RCT trailers. (T. 88-89 , 99 ) .

18. Diesel fuel has a flash point below 199.4 degrees F ahrenheit
    and is thus a “flammable liquid” as that term is defined in 29 C.F.R. § 1910.106(a )( 19).

(T. 40-41).

19. The National Fire Protection Association (NFPA) has promulgated a consensus standard designated as “NFPA 10 – Standard for Portable Fire Extinguishers,” the current version of which was i ssued in 2013. (Court
    Ex.
    1). NFPA 10 includes a provision
    that “[f] ire
    extinguishers shall not be used for any purpose other than that of a fire extinguisher.” (Court’s Ex. 1, § 7.9.1). Another provision
    stat es
    that a “fire extinguisher that has been used for any purpose other than that of a fire extinguisher” “shall be condemned or destroyed.” (Ex. C-5, p. 4, § 8.4.2).

Discussion

The Commission
obtained
jurisdiction
of this
matter
under section 10(c) of the
Occupational Safety and Health
Act
(Act)
upon
RCT’s timely contest of the citation and proposed penalty.

29 U.S.C.
§
659(c). At all relevant times,
RCT
was
an employer covered by the Act because it met the Act’s definition of
“employer . ”

2 9 U.S.C.
§   652(5).

The Act’s general duty clause
mandates that each employer “furnish to each of his
employees
employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).

To prove a violation of the general duty clause, the Secretary must establish that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.

Peacock Eng'g, Inc. , 26
BNA OSHC
1588, 1589
(No. 11-2780, 2017).

The Secretary failed to prove the existence of the hazard alleged in the citation. Specifically, the evidence is insufficient to establish that any pressurized canister
used or
maintained
by
any
RCT driver to spray diesel fuel
had been originally manufactured as
a fire extinguisher.

Derek
DeFelice, the current terminal manager for RCT and its dispatcher at the time of the inspection, testified with poise and confidence that the sprayers some drivers were using were not manufactured to be fire extinguishers. Rather, they were
simply
liquid
sprayers that
had not been manufactured as
fire extinguishers. DeFelice
had personal
knowledge of the practices of RCT’s drivers. No
witness
with personal knowledge
of the drivers’ practices
controverted
DeFelice’s
testimony.

Some of the evidence presented to support the contrary conclusion
involves
the saga of
RCT’s
former terminal manager,
Rick
Tucker,
going to the
KFE store and returning with the battered Badger fire extinguisher provided
by the storekeeper
as a facsimile of the type of equipment KFE was selling to RCT drivers to spray diesel fuel. At the time of the hearing,
Tucker
was no longer serving as the terminal manager for RCT
(T. 65, line 1), and the
record is silent
as to whether he
remained
in RCT’s employ. Either party was
presumably
capable of securing his presence at the hearing by
compulsory
process or other reasonable means, but neither
party
did. Thus, the account of the circumstances surrounding Tucker’s obtaining the fire extinguisher at KFE
is
based upon Kris McKenna’s testimony recounting his post-inspection conversation with the operator of KFE,
which
took place
sometime
after
July 18, 2016. (T. 67, 72-73). That hearsay testimony was not objected to and no evidence was presented
to
controvert
it. McKenna’s
hearsay testimony is reasonably
probative and sufficiently reliable to support the findings of fact
set forth in ¶
11,
supra , that KFE had not been selling fire extinguishers to RCT drivers. See
Monroe Drywall Constr., Inc.,
24 BNA OSHC 1111, 1113 (No. 12-0379, 2012)
(finding
that
Commission judge erred in failing to accord
unobjected
to hearsay testimony its “natural probative weight”).

The Secretary contends that
CO Chow’s one-page written narrative of her inspection
establishes
that
RCT
management
admitted
to the CO
that RCT drivers were
using fire extinguishers to spray diesel fuel. The Secretary relies on
the following
paragraph of CO Chow’s narrative
report
(Ex. C-2):

Mr. Carrier stated that
all of
his drivers were out of the shop. Many do not leave from the shop but rather from their home or other points. The drivers
(Carrier employees)
were not required to purchase the water fire extinguisher and fill it with pressurized diesel fuel. Mr. Carrier further stated that one of the drivers came up with the idea and shared it with others. This practice was not condoned by the
employer
but they did not stop it.

(The narrative does not indicate
whether the
person identified as
“Mr. Carrier”
in this paragraph
is RCT’s owner, Richard Carrier,
or his son, Jim Carrier. [ See
T. 97-98].)

This paragraph of the narrative is of questionable
reliability
to prove that
Mr. Carrier admitted or acknowledged that RCT drivers
were
using fire extinguishers to spray diesel fuel. There is no evidence indicating the date that CO Chow wrote the quoted paragraph, but she completed the narrative portion of her inspection report on
July 14, 2016, about three months after her inspection. Similarly, there is no evidence
as
to what extent
CO Chow
had an independent
memory of
what Mr. Carrier said
on April 18, 2016,
or whether that
part of her narrative was
derived in whole or in part from
notes she may have taken
during her inspection
(none of which were presented in evidence).

There is no
evidence
to
indicate the timing of the CO’s communication with Mr. Carrier—whether it was
before or after Tucker returned from KFE with the used fire extinguisher. If the conversation with Mr. Carrier occurred before Tucker returned
from KFE
with the fire extinguisher,
the CO
could have
conflated
Mr. Carrier’s comments
about
drivers
spraying diesel fuel
with an erroneous presumption that such spraying was
being
done with
fire extinguishers, rather than
a
pressurized sprayer
that was not a fire extinguisher.

It is clear
from the CO’s narrative that
part of
her concern was
the use of
diesel fuel
as
a
lubricant,
as well as
the
equipment used to apply it. This is demonstrated by the following paragraph included in her narrative (Ex. C-2):

Mr. McKenna stated that the drivers should only use the diesel fuel for fueling their tractors. The drivers’ contact with diesel fuel is at the fuel pump when they are refueling their tanks. The only training involved is through their written
haz
comm, using SDSs to identify hazards. The drivers do not perform maintenance on their tractors involving the diesel lines.

This intermingling of dual concerns
in the narrative
makes it uncertain what the focus of the CO’s investigation was at any given time. The circumstances were
ripe for the CO and Mr. Carrier to have been speaking
past each other
and
for the
possibility of
miscommunication
between them.

This potential
for
confusion is further exemplified by the
abatement method identified
in the original citation (before
it was amended). The original citation provided that “one feasible and acceptable abatement method to correct this hazard is to
apply an approved non-stick or low friction surface to the trailer walls and floor in accordance with the manufacturer’s specification.”

This described method of abatement
appears
directed to the
practice of
using a
hazardous material
to coat the trailer surfaces, not
to the appropriateness of
the equipment
being
used to apply
the hazardous material.

The original
proposed method of abatement
makes sense if the
hazard that
had
been
identified
was the
coating of the walls and floor of the trailers with a
hazardous material. But that proposed abatement
is a
non sequitur
with respect to
the
hazard
alleged
here
of the potential use of a fire extinguisher, containing diesel fuel,
to
extinguish an actual
fire.

(T. 31).

If CO Chow had testified, she might well have dispelled such
uncertainties about
her narrative, but she might also
have come to recognize that she had
misunderstood or mischaracterized what Mr. Carrier said. Of course, how
CO Chow
might have testified is unknown on this record. RCT presented
credible testimony
from Mr.
DeFelice
that no drivers were using re-purposed fire extinguishers
to spray the diesel fuel. RCT also presented a
plausible
description of the circumstances surrounding the
production of the fire extinguisher that Tucker obtained from KFE. In the face of that evidence, the
CO’s
spare
written
record of her inspection
and
other
supporting evidence
are
not sufficiently reliable to
meet
the Secretary’s burden
to prove
that the pressurized canisters being used were manufactured as fire extinguishers.

The Secretary argues that the
“missing witness”
inference
should be applied
and that the trier of fact should
conclude
that if Mr. Carrier had testified,
his testimony would have been unfavorable to
RCT
(and favorable to the Secretary). See
Capeway
Roofing Sys . , Inc. , 20 BNA OSHC 1331, 1342-43 (No. 00-1968, 2003) (“when one party has it peculiarly within its power to produce witnesses whose testimony would elucidate the situation and fails to do so, it gives rise to the presumption that the testimony would be unfavorable to that party”). The
federal district court
in
Chevron Corp. v.
Donziger , 974 F. Supp. 2d 362, 700–01 (S.D.N.Y. 2014),
aff'd , 833 F.3d 74 (2d Cir. 2016),
recently
described
the
contours of the
missing witness
inference
in detail
as follows
(internal quotation marks and footnotes omitted):

A missing witness charge permitting the jury to infer that the testimony of an unproduced witness would have favored one party is appropriate if production of the witness is
peculiarly within [the] power of the other party. Such an inference is equally permissible in bench trials.

Hence, where one party alone could produce a material witness but fails to do so, an inference that the testimony would favor the opposing party may be appropriate.
. . . By parity of reasoning, an adverse inference may be appropriate based on the failure to testify of someone closely allied with or related to a party, such as an employee.

In the event that
a witness is available equally to both sides, the failure to produce is open to an inference against both parties or neither party.

Where the missing witness's testimony would be cumulative, however, the inference is not available.

In determining whether a witness is uniquely available to an adverse party, courts in
[the Second Circuit]
consider whether that witness is available to the party seeking the adverse inference, as the availability of the witness to an opposing party makes an adverse inference against the party with the closer relationship to the witness less appropriate.

An adverse inference is not warranted, for example, where the controlling or related party makes the missing witness available to its opponent, the party seeking the adverse inference equally could obtain the missing witness's testimony, or the party seeking the adverse inference made no attempt to obtain the witness's testimony.

Such a rule prevents a party from manipulating the system by choosing not to call a witness while claiming that the witness's testimony would be favorable.

The availability determination rests on
all the facts and circumstances bearing upon the witness's relation to the parties.

The inference that the Secretary seeks to have drawn
is that if Mr. Carrier had testified, he would have corroborated
CO Chow’s narrative
that he
acknowledged
that
drivers were using repurposed
fire extinguishers to spray
diesel fuel. The undersigned declines to indulge in the
“missing witness”
inference here for
two
reasons.

See
U.S. v.
St. Michael's Credit Union , 880 F.2d
579,
597
(1st Cir.1989)
(noting that the
decision of
whether or not
to allow a missing-witness inference is within the sound discretion of the
trial judge).

First, the Secretary
had the
burden to prove that the equipment used to spray the diesel fuel had been manufactured as a fire extinguisher. It was not RCT’s burden to disprove it. See U.S. v. Rohm & Haas Co. , 47 F.
App'x
125, 129 (3d Cir. 2002) (declining to apply adverse inference where the party urging the inference had the burden to prove the matter in issue and could have deposed the “missing witness” but chose not to);
Boardman v. Nat'l Med. Enters. , 106 F.3d 840, 844 (8th Cir. 1997) (noting that “[d]rawing
an adverse inference from the failure of a party to put on key witnesses relevant to some issue is most reasonable when it is the party with the burden of proof on that issue who fails to do so”). The missing witness inference inevitably injects a
substantial
measure of speculation and
supposition
about what a witness would have said if called
to testify.

For such
speculation to
tilt the scale in favor of the party with the
burden of proof
effectively
relaxes
that
party’s
burden. The Secretary could have
sought to
present the testimony of Mr. Carrier in
his
case-in-chief to confirm the accuracy of the CO’s narrative, particularly
since
the Secretary
expected
not to present CO Chow to testify
respecting
her communication with him.

The Secretary, after all,
called
RCT’s safety manager
to testify in his
case-in-chief. The Secretary could have
similarly
sought
Mr. Carrier’s testimony.

Second, RCT was self-represented in this matter by its safety manager, who is
neither
trained in the law
nor experienced in the litigation of OSHA citations. While a
reasonably diligent
attorney
representing RCT
may
have
endeavored to
present
Mr. Carrier’s
favorable
testimony,
most
pro se
litigants cannot reasonably be expected to possess comparable litigation
savvy. Cf.
Wentzell ,
16 BNA OSHC 1475, 1476 (No. 92–2696, 1993)
(noting that a “ pro se
employer can often be genuinely confused by legal terminology and the technicalities of judicial procedure; that is, even while trying to exercise reasonable diligence, a
pro se
employer can fail to grasp exactly what he is being asked to do”);
Imageries , 15 BNA OSHC 1545, 1547 (No. 90-378, 1992) (noting that parties appearing
pro se
may “require additional consideration of their circumstances” ).

The Secretary having failed to meet his burden to prove that any fire extinguishers had been used or maintained by RCT
employees
to spray diesel fuel, the citation must be vacated. 2

ORDER

The foregoing decision constitutes findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). If any finding is
in actuality a
conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed so, any label to the contrary notwithstanding.

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED
that
Citation 2, item 1, alleging a violation of the 29 U.S.C. § 654(a), having not been proven, is VACATED.

S O
ORDERED.

/s/William S. Coleman

WILLIAM S. COLEMAN

Administrative Law
Judge

DATED:
September 29, 2017

"

1
The reason the citation item was not designated “Citation 1 Item 1” is because earlier, on July 18, 2016, OSHA had issued a single item serious citation to RCT arising out of the same inspection. That citation was designated “Citation 1 Item 1,” and alleged a violation of subparagraph (d)(2)( i ) of 29 C.F.R. § 1910.106, “Flammable liquids,” which
is located in
subpart H, “Hazardous Materials.”

RCT timely contested “Citation 1 Item 1,” and the Executive Secretary of the Occupational Safety and Health Review Commission (Commission) docketed the matter, assigning it docket number 16-1363. Thereafter, the parties entered into an agreement dated August 26, 2016, in which the Secretary agreed to withdraw that citation and further agreed to the entry of an order dismissing it. The Commission approved the parties’ agreement and incorporated its terms by reference by an order that became a final order of the Commission on December 14, 2016. (T. 12, 54, 75; Exhibit C-3). See
Copomon
Enters., LLC , 24 BNA OSHC 2177, 2179 n. 1 (No. 13-0709) (ALJ) (taking judicial notice under Fed. R.
Evid . 201 of documents contained in the case file of a different matter before the Commission),
aff’d
601 F.
App ’x
823
(11th Cir. 2015) (unpublished).

OSHA issued “Citation 2 Item 1” at issue here on September 9, 2016, after having agreed to the dismissal of “Citation 1 Item 1.”

2
For the citation here to have been issued before the six-month limitations period of 29 U.S.C. § 658(c) expired, the alleged hazardous condition would have had to have existed sometime after March 15, 2016. However, RCT did not raise the limitations defense, so that defense is deemed waived and it is not adjudicated here. See Charles W. Mason, DDS ,
& Assocs. , PLLC , 25
BNA OSHC
1792 , 1794 n. 4
( No. 10-2313 , 2015) . Nevertheless, it is notable that the Secretary did not allege the date o r
timeframe
when
the alleged hazardous condition existed in his amended complaint, which is a requirement of Commission Rule 34(a)(2)(ii) (requiring that the complaint state “with particularity” the “time … of each alleged violation”). 29 C.F.R. § 2200.34(a)(2)(ii). Similarly, no evidence was presented of any
particular date
or timeframe that any alleged re-purposed fire extinguisher had been present at RCT’s workplace or present on any of its vehicles or trailers.