U.S. Postal Service, dba Portland Processing and Distribution Center

Read the official release (oshrc.gov)

Plain-English summary

OSHA inspected the U.S. Postal Service's Portland processing and distribution center after a complaint and cited lockout, lockout-training, and machine-guarding conditions. The three contested items carried proposed penalties totaling $148,137. The judge found the lock-removal standard did not apply because the employee whose lock was removed had not applied it to perform servicing or maintenance and therefore was not an authorized employee under OSHA's definition. OSHA also failed to connect any individual worker to an untrained covered task during the citation period or prove that the mail-processing machine operated without its guard. All three citation items were vacated, and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.147(e)(3), 1910.147(c)(7)(i), 1910.212(a)(1)
• Outcome: All three contested lockout, training, and machine-guarding items were vacated, eliminating the proposed $148,137 penalty.
• Key point: OSHA must prove that each cited standard applies to the employees and tasks at issue and that the cited condition actually occurred.

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainant,

v.

U.S. POSTAL SERVICE, dba PORTLAND PROCESSING AND DISTRIBUTION
CENTER,

Respondent.

OSHRC DOCKET NO. 2 2 - 0 742

Appearances:

Luis A. Garcia,
Esq.,
and
Natasha
A.
Magness, Esq.,
U.S.
Department of Labor,
Office of the Solicitor,

Los Angeles, California

For Complainant

David P. Larson,
Esq.,
U.S. Postal Service Law Department, OSHA Group, Denver, Colorado

For Respondent

Before: Administrative Law Judge
Christopher D. Helms

DECISION AND ORDER

I. Procedural History

I n response to a
complaint ,
the
U.S.
Occupational Safety and Health Administration (“OSHA”)
opened an inspection of the U.S. Postal Service dba Portland Processing and Distribution Center
(“USPS” or “Respondent”)
located at 7007 NE
Cornfoot
Road,
Portland, Oregon
(“ work site”) .
As a result of
the inspection,
OSHA issued a
Citation and Notification of Penalty
(“Citation”) to
Respondent
alleg ing
violation s
of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§  651-678 ( “OSH
Act ”)
and propos ing
a
total
penalty of
$ 148,137 . The

Citation was issued on
June 1,
20 22 1
and
contained
the following:
(1)
Citation 1 ,
Item 1
alleged
a serious violation of 29 C.F.R.
§ 1910.147(e)(3) ; (2)
Citation 2 ,
Item 1 alleged
a repeat-serious violation of 29 C.F.R. § 1910.147(c)(7)( i ); and (3)
Citation 2 ,
Item 2 alleged
a repeat-serious violation of 29 C.F.R. § 1910.212(a)(1) . 2

Respondent timely contested the Citation , bringing this matter before the
U.S. Occupational Safety and Health Review
Commission
(“Commission”) .
A
three -day
hearing
was held
on
March 28 - 30, 2023 , in
Portland, Oregon . Th e following witnesses
testified :
(1 )
USPS Ma intenance Mechanic Scott Ashby ;
(2)
USPS Maintenance Mechanic
Drake Dillard ;
(3)
USPS Mai l Processing Equipment
Mechanic
[redacted] ;
(4) USPS
Electronic Technician Adam Adams; (5) USPS Maintenance Mechanic Vladimir Kratovil;
(6) USPS Maintenance Mechanic
Aaron Fox; (7) USPS
Area Maintenance Technician
[redacted] ;
(8) USPS
Electronic Technician Gregory Johnson; (9) USPS Maintenance Manager David
Chiniewicz ; (10) OSHA Area Director Cecil Tipton;
(11) OSHA Acting Area Director Richard Quan; (12) OSHA Compliance Officer
(“CO”
or “CSHO” )
Cassandra Davis; (13) USPS
Acting S upervisor William Bennett; (14) USPS Supervisor Maintenance Operations Justin Pulu; (15) USPS Supervisor Maintenance Operations David Hamlin; (16) USPS Lead Maintenance Manager Jeffrey Moline; and ( 17 ) OSHA CO Michael Potter.

Both
parties filed briefs
after the hearing .

B ased on what follows, the Court
vacates
Citation 1, Item 1, Citation 2, Item 1, and Citation 2, Item 2.

II. Stipulations

The parties
agreed upon
a
joint
stipulation
statement
(“JSS”)
prior to the beginning of trial. See
Joint Stipulation Statement; Complainant Secretary of Labor’s Request for Judicial Notice (Mar. 17, 20 23) ;
( Tr.
9.)
Th e
parties stipulated to
32 enumerated facts
which are hereby incorporated
by reference .
( JS S
at
pp.
2-5 , ¶¶ 1-32 .) These stipulations will be
addressed herein as appropriate.

III. Jurisdiction

Th e
Postal Employees Safety Enhancement Act of 1970
made
the OSH Act applicable to Respondent in the same manner as any other employer.

Pub. No. 105-241, 112 Stat. 1572-1575 (1998);
see also
29 U . S . C .
§  652(5). The
record
establishes
that
Respondent is
an employer within the meaning of the
OSH
Act and that it is
engaged in a business affecting interstate commerce.

(Complaint ¶ ¶ II, III;
Answer
¶¶ II, III ; Ex. C-8 at 0307 .) The record
also
establishes that Respondent filed a timely notice of contest. (JSS ¶ 6.) Accordingly ,
as the parties stipulated,
t he Court has jurisdiction over this proceeding pursuant to
section
10(c) of the
OSH
Act .

29 U.S.C. §  6 59(c) ;
JSS
¶  2 ;
Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, U.S.
Dep ’ t
of Lab . , 518 F.2d 990, 995 (5th Cir. 1975),
aff ’ d
sub nom.
Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n , 430 U.S. 442
(1977) (describing “Enforcement Structure of OSHA”).

IV. Factual Background

A. The Worksite

The
worksite is a
24-hour
850,000 square - feet
mail - processing
facility . Approximately 1,145 employees work at the facility in three “tours,” or work shifts: Tour 1 is 10
p.m. to 7
a.m.; Tour 2 is 7a.m to 2
p.m. ; Tour 3 is 2
p.m.
to 10
p.m. 3 (Ex. C-8 at 0315; Sec’y Br. 2 n.2.) Within
each area of the workroom floor are n umerous different machines
–
each with their own
Energy Control Procedure (“ECP”) as documented by Respondent’s
Maintenance Technical Support Center. See , e.g., Ex. C-49 (ECP for Dual Pass Rough Cull (DPRC) ) .
The
record includes ECP’s for approximately
thirteen different machines. 4

( JSS ¶¶ 11-20;
Ex s .
C-49 (DPRC 1 & 2), C-52
(EPPS), C-53 (APBS), C-54 (DIOSS), C-55 (CIOSS), C-56 (ATU), C- 57 (AFCS 200), C-58 (AFSM 100), C-59 ( AFSM 100 AIAFSM), C-60 (ATSU & ATSII), C061 (USS-1
Intralox ), C-62 (USS-1 Sorter), C-63 (LCTS). ) 5

The workroom floor area within the facility is shaped like a rectangle and divided into “rows” and “columns.” (Tr. 165.) The rows are named A – S (approximately 19 rows) and denote certain areas of the workroom floor. (Tr. 165.) For example, the “K row encompasses an entire row of the building,” and
is located in
the middle of the workroom floor. (Tr. 97, 165.)

The K row,
notably , is “a place where people are assigned to cover a large
amount
of machines, in fact about 12 different acronyms at the Postal Service.” (Tr. 97.) Also of note is that w hile the K row contains multiple machines, the
“ EPPS area ”
contains only one “substantially larger” machine (the EPPS) and
is in
a different area of Respondent’s worksite
and is
the size of a “football field.” (Tr. 126.)

The
hazards at issue in this case relate to the
employees
who
are mechanics /technicians
for the various machines
in the facility.

Mechanics are responsible for machine preventative and non-scheduled maintenance including tasks such as changing belts, vacuuming, and unjamming tray lines. (Tr. 62-63, 808). During their tour, m echanics are assigned
machinery in
a certain area
of
the floor
and “in the area
[they are ]
wat c hing the machine, watching the belts,
mak [ ing ] sure the belts haven’t drifted from side to side rubbing on the – that the y ’re tracked properly and not rubbing on one of the guard rails. Ensuring that
ther e ’s nothing
jammed in there and tearing apart somebody’s mail.” (Tr. 929-930).

The record indicates that there are different “levels” of
maintenance ,
starting with “custodian” levels 3, 4, and 5, and then
“mechanic”
level 7 and level 9. (Tr.
62 , 910-91 2 .) USPS
Lead
Maintenance Manager
Moline
testified
that the difference between a level 7 mechanic and a level 9 mechanic is primarily for compensation pu rp oses. (Tr. 913).
The record suggests that the
higher level
mechanics perform
“ higher level ”
tasks. 6 (Tr.
174- 175.)
The record also suggests , however,
that
sometimes a level 7 mechanic
is trained on
how to perform
some
level 9
mechanic
tasks . (Tr. 24 3 -246 , 912-913 .)

The record establishes that both level 7 and level 9
mechanics can be “authorized employees”
at Respondent’s worksite.

An
“a uthorized employee ”
at Respondent’s worksite
is an employee who is
trained in lockout/tagout
of
a specific
piece of machinery
and
perform s
service or repair tasks on it.

(JSS ¶ ¶   9-10;
Tr. 210 ; Ex. C-23
at 969 ). The record indicates that Respondent requires initial and then yearly refresher training for a specific piece of equipment
in order for
a mechanic to maintain the “authorized employee” status for that machine. (JSS ¶¶ 9-10; Tr. 39-40, 72-73, 97-98, 214-215, 327, 533-534, 946-947; Ex. C-23.) The lockout/tagout training for specific machinery is typically
one to two hours
long ,
in group format ,
and hands-on such that each person will perform the lockout/tagout procedure on the machine so that they
are
comfortable with locking out that machine. (Tr. 65- 69 .) As discussed below, t he record overwhelmingly supports a finding
that the mechanic
witnesses
in this case
knew
whether ,
and
on
which machine s ,
they were each
designated as an
“ authorized
employee ”
to wo rk.

In contrast to “authorized employees,”
Respondent also
designates
employees as
“ a ffected employees , ”
which
are those
employees
that are not
“ au thorized employee s ”
such as
“mail processing employees, carriers, custodians, and management employees. ”
(Tr. 948 ; Ex.
C-23 at 969 .) Respondent requires
“affected
employees” 7
be “instructed in the purpose and use of the energy control procedure, prohibitions relating to
attempts
to restart equipment, or remove energy control devices.” (Ex. C-23 at 969. ) The record indicates that
Respondent considers that
some tasks – such as
vacuuming – can be performed by
“ affected employees ”
on machines when there is no risk
of unexpected energization. ( Tr. 812-81 5 ;
Ex. C-23 at 990.)

On a daily basis , according to Respondent Lead Maintenance Manager
Jeffrey
Moline, machines are serviced under a “group lockout”
situation. (Tr. 919-920.) A g roup
lockout is when
one authorized employee locks out a machine, and
then
other
employees 8
perform
tasks like vacuuming, computer work or changing a bearing or a belt
on that
piece of machinery
while
it
is locked out. (Tr.
240-241,
919-920 ; Ex. C-23 at 982 .)

B. The
Workers

Scott Ashby is a level 7 maintenance mechanic (tour 3) and is authorized to lockout and service the DBCS and CIOS. (Tr. 32-33, 45). He testified that his DBCS and CIOS training was up to date. (Tr. 40).

Drake Dillard is a level 7 maintenance mechanic (tour 1 during the time at issue) and is
authorized to lockout and service the ATU, APPS, ASCS, DBCS, DIOS/CIOS, and AFSM. (Tr. 63-65).

[redacted]
is a level 9 mail processing equipment mechanic (tour 1)
and
is authorized to lockout and service the DBCS and AFSM. (Tr. 94-97, 127). He testified that he was trained on DBCS and AFSM in 2020. (Tr. 100).

Adam Adams is a level 10 electronic technician and "lead trainer" (tour 1) and is authorized to lockout and service the DB, DIOS, and CIOS. (Tr. 210-213). He testified that he is trained in the DB and DIOS/CIOS (and has trained others) in 2020-2022. (Tr. 213).

Vladimir Kratochvil is a level 7 maintenance mechanic (tour 2) and is authorized to lockout and service the AFCS200, DPRC, BFS, and NEC canceler. (Tr. 256-257, 263). He testified that he is trained in AFCS, DPRC, BFS, NEX, and DPRC 2 as of 2021. (Tr. 257, 262).

Aaron Fox is a level
7
maintenance mechanic (tour 1) and is authorized to lockout and service the DBCS, DIOS, and CIOS. (Tr. 321-322). He testified that he was trained in DBCS, DIOS and CIOS since December 2021. (Tr. 321-322).

[ redacted]

is
a level 10 area maintenance technician (an electronic technician during time at issue) (tour 2) and is authorized to lockout and service the AFCS, Barney, DPRC, AFCS, and BDS (bio detection system).

(Tr. 357-359). He testified that he was trained in AFCS and DPRC in 2018. (Tr. 359, 363, 443).

Gregory Johnson is a level 10 electronic technician (tour 3) and is authorized to lockout and service the AFCS, DPRC, DBCS, CIOS, DIOS, and RCS. (Tr. 477-478, 480). He testified that he is trained in AFCS, DBCS, CIOS, DIOS, RCS, and DPRC 1&2. (Tr. 478).

Initial Employee
Complaint

OSHA’s inspection was based on two separate complaints filed by
Respondent’s
employees. The first complaint was e-filed with OSHA on November 24, 2021, by
[redacted] , who
at the time of
his
complaint
was a
level 9
mechanic
who worked on Tour 1
and was an authorized employee on the DBCS and AFSM
at the site. His
online complaint includes the following
commentary :

The Postal Service management officials have been placing untrained employees in unsafe situations. They’ve been
allow
untrained employees to complete the Operational Maintenance, Preventive Maintenance and Reactive Maintenance Routes. These employees are not qualified per the Electrical Work plan agreement 6 EL-810-2013-5 and MMO-023- 13. There are approximately 6 employees that I’ve identified so far.

(Ex. C- 1 at 221.) Another entry on
the online complaint identified the following locations with hazardous conditions: “The EPPS, AFTL, ATS, LCTS, MSWYB, and the APBS areas.”
(Ex. C-1 at 221.)

Upon receipt of Mr. Drain’s
online
complaint,
OSHA Area Director
(“AD”)
Cecil Tipton assigned the matter to CO Cassandra Davis and CO Michael Potter.

(Tr.
559.) AD
Tipton directed CO Davis to reach out to
[redacted] to clarify the complaint. AD Tipton explained:

You know, because what is written here was not real clear on exactly what we're getting at and a lot of these terms we don't know, so we needed to reach out to the complainant to get a clarification on that. Get clarification on locations. What is
actually meant
by this complaint.

(Tr. 562.) CO Davis
contacted
[redacted] by telephone
on November 29, 2021, and requested additional information from him regarding the hazards he identified in the online complaint. (Tr.
632-633; Ex. C-73.) CO Davis explained
that she did not know what
[redacted] was referring to
by the acronyms under “Hazard Location.” (Tr. 631.) CO Davis testified :

I asked him to go over his complaint with me. I asked him what the hazards were that he was concerned with, because in the complaint it just said employees are in
an untrained
–
I ’ m sorry,
‘ Untrained employees are in unsafe situations. ’
So
I asked him to explain to me what that means, and then he went into detail to advise me what the unsafe situations were and the training that he thought was required.

(Tr.
633.) [redacted] sent an email on December 1, 2021, with the following additional
information he had discussed with CO Davis on the telephone:

The Postal Service has been exposing untrained emplo y ees to electrical hazards from work on, near conductors or equipment in electric-utilization installations. Per the Postal Service agreement with OSHA, the E l ectrical Work Plan EL-810-2013-5, employees must successfully complete the required training. The Postal Serv ice has not demonstrated that the emp l oyees have completed Lock out tag out training under MMO-033-05 and all required training for New Maintenance Employees under Management Instruction EL-810-2013-5, which requires at least 6 months of on-the-job training with a ‘qualified ’
Postal Service employee.

One of the many areas the workers in question are being exposed to is the ‘K-Row’ area . The ‘K-Row’ area has 32 machines of many v a rieties including but not limited to AFTL (Automatic Flats Tray Lidder), APBS (Automated Parcel Bundle Sorter), ATS (Automatic Tray Sorter),
and more.

(Ex. 73 at 223) (emphasis added).
When asked at the hearing why he submitted the complaint,
[redacted]
testified:

There were employees they were having working in the K row and the EPPS area that were new and untrained. And before you work on any equipment you should have lockout/tagout training, you know. And they had expressed to me -- expressed to me over time that, you know, they lacked training.

(Tr. 104). When asked why he selected those
particular pieces
of equipment,
[redacted]
testified: “It was just as an example. There was plenty…the K row has like 12 different acronyms.” (Tr. 109.) [redacted]
then testified that the EPPS area and the K-row area are two separate areas. (Tr. 125.)

After this correspondence,
CO Davis and AD Tipton understood Mr. Drain’s complaint to be
equipment focused
and not necessarily location specific. (Tr. 604, 794.) AD Tipton testified that he understood Mr. Drain ’s concern to be “a systemic issue” related to lockout/tagout, but that OSHA ha d no capability of looking “at every piece of equipment in that facility.” (Tr. 604.) CO
Davis prepared
the Notice of Alleged Safety or Health Hazards (“Notice”) , which
described the hazard
at Respondent’s worksite
as follows: “The Postal Service has been exposing employees to electrical shock, crushed-by, struck-by, any other related hazards while performing maintenance work without proper training in Lock-out Tag-out (LOTO) procedures.”
( Tr.
563,
638;
Ex.
C- 2.) AD Tipton reviewed the Notice and then assigned CO Davis and CO Potter to inspect Respondent’s worksite.

(Tr. 563-564.) When asked whether he received a copy of the Notice before CO Davis
inspected the worksite,
[redacted]
said that he remember ed
seeing the Notice. (Tr. 199 , 202 .)

C. The
Opening Conference ,
Initial Walk-Around
and Document Request

On December 3, 2021, CO Davis and CO Potter arrived at Respondent’s worksite , showed their credentials,
served management with the
Notice
and
conducted an opening conference . (JSS ¶ 3 ; Tr. 653-660 ;
Exs .
C-3, C-8 . )
CO Davis and CO Potter testified that
they discussed the Notice and specific pieces of equipment at the opening conference. The pieces of equipment discussed
included
the
“ EPPS, ”
“ LCTS, ”
“ MSWYD, ”
“ AFTL, ”
and the
“ ATS , ”
which
had been
listed on
Mr. Drain’s
complaint . (Tr.
656-657,
976; Ex. C-3 , C-73 .) This conversation was documented in CO Davis’s opening conference notes. (Tr. 655-656; Ex. C-3.) Respondent officials present at the opening conference
included
Brian
Gaines
(Facilities Operations Manager) ,
N’Kole
Bulb u l
(District Safety Manager) ,
Pamela
Simpson
(Interim Maintenance Manager) ,
David
Chiniewicz 9
(Maintenance Supervisor) ,
Levada
Padilla
(Regional Senior Lead Manager – via teleconference) ,
Steve
Sc h wartzman
(Attorney – via teleconference) , and
Theresa
Mills
(via teleconference) . (Tr. 653;
Exs . C-3, C-8
at 308 .)

During this opening conference, CO Davis also asked for documents from Respondent. (Tr. 658.) CO Davis requested the following documents:

OSHA 300s for the past three years; the lockout/tagout program and all the procedures for the equipment
that
requires lockout/tagout; forma l and informal lockout/tagout training records for
authorized ,
affected
and other employees; a list of authorized employees and affected users; and then the organizational chart for that facility; the work schedules for maintenance mechanics and technicians.

(Tr. 658; Ex. C-8 at 317.) CO Davis testified that
Ms. Padilla objected to “the volume” of documents that CO Davis requested ;
CO Davis
told Ms. Padilla th at OSHA “needed” the documents and “hope [ d ]
that they would provide them . ” (Tr. 659-660.)

CO Davis testi fied that
they discussed the possibility of a walk around to inspect the machines they had mentioned. ( Tr. 660;
Ex. C-3.) She testified , however,
that
“ [t] he
employer objected again and said that due to it being the holiday season and the volume of work that they had, the y
would direct us to
[only]
one machine , ”
the
“ EPPS. ” (Tr. 660.)
CO Davis testified that “during the opening conference, I gave a list of the machines. The employer was aware of where those specific machines were located, and took us to the location, based on what was agreed upon in the opening conference.” (Tr. 754-755);
see also
Tr. 975-976; Ex. C-3. CO Davis and CO Potter walked through the faci lity and interviewed several employees. (Tr. 661.) CO Davis
testified that “it was difficult again because they said due
to business needs there was a limitation on emplo y ees we could speak with.” (Tr. 661.)
The
entire visit
lasted an hour and a half. (Tr. 660.)

On
December 7, 2021, in response to the OSHA 300 logs that Respondent had
provided
to
OSHA
on the day of the inspection, CO Davis formally requested
the rest of the documents that had been discussed during the opening conference. (Tr. 663-664;
Exs . C-19, C-20.)
Respondent submitted several documents to CO Davis. (Tr. 665-6 71 ;
Exs . C- 21, C-22, C-23 , C-24,
C-25 . ) CO Davis reviewed the documents and determined that
the re
“were still missing documents,” and
that the documents that were submitted “did not disprove the allegation.” (Tr. 673.) After approval from AD Tipton, CO Davis
prepared a subpoena for the missing documents. (Tr.
567-569,
673 ;
Ex.
C-27 .) The subpoena was issued on February 18, 2022. (Ex. C-27.)

In
answer
to the subpoena, Respondent attorney Schwartzman emailed a response
providing some additional
documentation and
objecting to
some requests . (Tr.
570-571; Ex. C-28.)
OSHA
responded
to Mr. Schwartzman
stating “ [ s ] ome
of the
issues
may
just need clarification
or confirmation while others may need the production of additional documents , ”
and
clarified and narrowed the scope of the request.

( Tr. 570 -571 ;
Ex. C -29.)
On March 15, 2022,
Respondent submitted “a very large amount of documentation.” (Tr. 572-573 , 676 ; Ex. C-30.) After reviewing all the documents, OSHA determined that Respondent
had not
submi tted
the requested training records. (Tr. 573-574 .) According to CO Davis, “[b] ased
on the documentation that had been submitted and reviewed, it still did not disprove the allegation that employees were not being properly trained.” (Tr. 686 , 689-693 .)

D. The May 2022 Employee Complaint and Walk-Around

On May 18, 2022 10 ,
Respondent
electronic tech nician
[ redacted]

called
CO Davis and then sent her an email
at 4:38
p.m.
regarding t he removal of his lock and tag from the Dual Pass Rough Cull #2 (“DPRC”)
the previous day,
May 17, 2022. (Tr. 357, 419; Ex. C-77.) Mr. King
shared with
CO Davis
photo graph s of
a DPRC machine
guard
cover that had been removed and placed o n the ground,
with
broken pieces of
a
shaft and bearing inside it, and photos of the control panel
of the DPRC
without
[redacted]
’s lock and tag. (Tr. 420-421.) [ redacted]

testified
that he believed this was a “safety hazard, the potential that management has clearly seen by
now” because
“[t] hey’ve
cut my lock off. Because I was trying to, you know, trying to protect co-workers and further damage to the machine.” (Tr. 420.)

That same day, at
7:30
p.m. , CO Davis arrived at Respondent’s worksite after getting approval from her supervisor to conduct another walk-around inspection regarding
[redacted]
’s complaint. (Tr. 719 ; Ex. C-8 at 308.) After a brief opening conference,
in which CO Davis “identified that this was lockout/tagout and that we had an open inspection” and identified th e DPRC as the machine that she needed to see,
Lead Manager Moline escorted CO Davis to the DPRC. ( Tr. 720;
Ex. C-8 at
309-310.) According to
Mr.
Moline, CO Davis stated that she “was here for the last issue with the – with the
EPPS.” (Tr. 892.) Mr.
Moline also testif i ed that CO Davis claimed that “she was there under the December
3rd
complaint which involved training.” (Tr. 892.)
Mr.
Moline testified that he asked her where she wanted to go, that she indicated that she wanted to see the DPRC, and that he then walked her to that piece of equipment. (Tr. 892-893.) Once at the DPRC,
which was locked out,
CO Davis saw
a
machine
guard
cover
on the ground, with
remnant s
of
a
bearing and
shaft inside
of it . ( Tr. 72 0 -72 6 ; Ex. C-45 at 1520, 1524, 1525,
1526.)

V. Discussion

A. Threshold
Issue
– Probable Cause

Respondent claims that OSHA
had no probable cause basis to inspect outside of the K-Row
per Mr. Drain’s
online complaint,
that
OSHA
entered into
Respondent’s facility under the guise of K-Row machin ery ,
but
intentionally
inspected
and requested documentation
regarding machinery
outside of the K-Row ,
and
therefore
OSHA
violated
Respondent’s Fourth Amendment rights
in this matter . ( Resp’t
Br. 2,
18-22.) Respondent
insists
tha t “[d] ismissal
and a written sanction of or referral of the Area Director
are
appropriate.” ( Resp’t
Br. 21.) The Secretary has
not addressed this issue in her post-hearing
brief;
however, the Court
ha d
addressed a similar claim
in this matter prior to the hearing.

For the following reasons, the Court rejects Respondent’s Fourth Amendment claim.

On February 10, 2023,
Respondent
filed a Motion to Dismiss Complaint for Failure to Comply with the Statute of Limitations, claiming in part that OSHA failed to comply with 29 U.S.C. § 657(f)(1) and the corresponding agency regulation found at 29 C.F.R. § 1903.11 by failing to provide a copy of Mr. Drain’s original complaint to Respondent at the time of the inspection. 11

The Secretary filed a response arguing that
“OSHA
inspections under Section 8(f) do not need to be limited in scope to the precise problems identified in employee compla i nts.” See
Sec’y
of Labor’s Response to Respondent’s Motion to Dismiss; Declarations of CSHO Casandra Davis and Luis A. Garcia in Support Thereof at 7-9 (Feb. 23, 2023) citing
Reich v. Montana Sulphur & Chem. Co. , 32 F.3d 440, 446 (9th Cir. 1994)
(“ MSCC ”) .

By Order issued on March 20, 2023, the motion to dismiss was denied with the note that “the Court will allow Respondent some latitude in examining the CSHO on what constituted the
notice received by OSHA prior to the inspection, subject to any objections based on legal privileges.” Order on Respondent’s Motion to Dismiss (No. 22-0742, Mar. 20, 2023.)

In its post-hearing brief, Respondent appears to have abandoned
the
specific claim
that OSHA
technically
failed to
comply with
the Act by not presenting Mr. Drain’s original complaint to Respondent at
the in i tial opening conference . 12 Instead, Respondent claims that OSHA wrongfully expanded the scope of the inspection
by inspecting outside of the K-Row
without proper basis or disclosure to Respondent ,
and
thereby violat ed
Respondent’s Fourth Amendment 13
rights. 14 ( Resp’t
Br. 2, 18-22.)

This case arises in the Ninth Circuit and so
MSCC
applies. 15
The
MSCC
court
found
that a complaint about welding pr ovided a sufficient basis for OSHA to inspect the employer’s welding procedures. MSCC , 32 F.3d
at
446;
see also
Hern Iron Works, Inc. v. Donovan,
670 F.2d 838, 841 (9th Cir . 1982 ) .
The court then concluded that “OSHA ’ s investigation is not a prisoner of the precise terms of the complaint filed.”

MSCC , 32 F.3d at 446 n.7. Similarly
here, Mr. Drain’s complaint related to lockout/tagout training, and th is
C ourt therefore finds that Mr. Drain’s

complaint provides a sufficient basis for OSHA to inspect Respondent’s lockout/tagout procedures.

Respondent , however,
cites
Donovan v. Sarasota Concrete Co.,
693 F.2d 1061, 1068-1069 (11th Cir.1982)
(“ Sarasota ”)
in support of its argument that
the Commission has the “authority to find an expanded search to be unreasonable and also apply the exclusionary rule to suppress evidence obtained in that fashion. ”

( Resp't
Br. at 21.) The
Sarasota
co urt took a
narrower
view than the
MSCC
court and held that p robable cause for an inspection
under the OSH Act
prompted by an employee complaint
is
established if
the inspection “bears an appropriate relationship to the violation alleged in the complaint. ”
Sarasota ,
693 F.2d
at
1068-1069. “   ‘ R easonableness ’ remains the ultimate standard in evaluating the propriety of an
administrative
search.” Id . at
1069-1070. For the following reasons, t he Co u rt finds that
even under
Sarasota ,
the
walk-around inspections at issue in this matter , as well as the document requests,
were appropriately related to
the alleged hazard of lack of lockout/tagout training
at Respondent’s worksite.

Respondent ’s argument is based
in part
on the
claim
tha t
i t
is “undisputed” that
“Respondent was never told prior to granting consent to inspect on December 3,
2021
that OSHA had already expanded the footprint of t h e insp e ction from 15% to 100% of the facility.” ( Resp’t
Br. 2 . ) First,
the number 15% came from Mr. Drain’s
answer to the stand-alone question, “if you were looking at the map from up above or sort of a bird’s eye view of the building, that entire workroom floor what percent would encompass the K row?” (Tr. 164.) Th e
number
“15%”
is misleading because :
(1)
Mr. Drain’s initial complaint also included the EPPS – which is the size of a “football field ” – and not part of the K-Row ;
(2)
Mr. Drain’s
December 1 , 2021
email state s
that his complaint is not limited to the machines in the K-Row ;
and
(3) the hazard alleged
(lockout/tagout training) could potentially “permeate” throughout the
facility
given the sheer
number of
pieces
of e quipment
throughout the facility .
( Tr. 126;
Ex. C-73 at 223
( “ One of the many areas
the workers in question are being exposed to is the ‘K-Row’ area ” ) ( emphasis added ) ) ;
Sarasota ,
693 F.2d
at
1069
( “a
specific complaint may allege a
violation which permeates the workplace so that a full scope inspection is reasonabl y
related to the complaint.”).

Second,
both AD Tipton and CO Davis disputed the allegation that the
scope of the
inspection was enlarged from 15% to 100% of the facility. (Tr. 583- 583,
747-748,
751-752, 754.) They both testified that the Notice was drafted as a direct result of consulting with
[redacted]
to understand what his concerns were at the worksite . Respondent points out that
[redacted]
did not intend
OSHA to
inspect the “ the entire building,” however his area of focus “was indeed the
K row
and the EPPS.” (Tr. 163;
Resp’t
Br.
20.)
Respondent cites no authority that the online submission through OSHA’s website
was absolute
and final such that only the online submission
c ould cons titute
the “ N otice ” as defined by the OSH Act . [redacted]
did not testify that
( nor was he asked whether )
the Notice
– which he recalled seeing –
given to Respondent management at the opening conference
exceeded his concerns.
(Tr.
198-199 , 201-202.) The Court thus
rejects
this
claim .

Respondent next argues
that
the search
of the DPRC
(which it is undisputed is not in the K-Row) on
May 18,
2022
w as
improper because
it
concerned
a
machine outside of the K-Row. ( Resp’t
Br.
19-21.) CO Davis testified that
the May 18 ,
2022,
search of the DPRC fell under the
Notice’s alleged training violations
because:

the allegation on the 18th was that the lock had been removed, which fell under training because there’s proper requirements to remove an employee’s lock, and that is covered under the training program .

(Tr. 776.)
Respondent does not address CO Davis’s explanation and maintains only that the search was invalid due to the location of the DPRC . The Court
accepts CO Davis’s explanation as
reasonable
because it is related to the initial alleged violation – lack of lockout/tagout training .

Sarasota ,
693 F.2d at 1068-1069. Similarly for the
document requests, CO Davis testified :

And as I understand, the mechanics are assigned to a variety of different machinery throughout the plant.
So
to get an accurate list of training records, had we limited it just to the K row, with some of the machines identified in the complaint are outside of the K row, we would not have had an accurate accounting of the training for the employees .

(Tr. 79 4.) The Court also finds that the requests for training documentation related to lockout/tagout were properly within the scope of
the initial alleged violation .

Finally, the Court rejects Respondent’s claims that AD Tipton made “knowing and false” statements under oath and “continued his lies” while on the witness stand. ( Resp’t
Br. 18.) The questions posed to AD Tipton presumed the incorrect conclusion that OSHA improperly expanded the scope of the inspection. AD Tipton’s responses reflected his opinion that the search was proper given the nature of the alleged hazard. (Tr. 583-584.) As such, Respondent’s request th at
AD Tipton be sanctioned or “referred” is denied . ( Resp’t
Br. 21-22.)

The Court rejects Respondent’s Fourth Amendment claims and
continues to the merits of the
alleged
violations.

B. Applicable Law

To establish a
prima facie
violation of
section 5(a)(2) of
the Act,
Complainant
must prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Atl. Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Complainant has the burden of establishing each element by a preponderance of the evidence.
Hartford Roofing Co ., 17 BNA OSHC 1361, 1365-66 (No. 92-3855, 1995). Preponderance of the evidence has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Preponderance of the evidence ,
Black’s Law Dictionary, (1 1 th ed. 201 9 ).

C. Citation 1, Item 1
– The
A lleged
Lockout/Tagout Device Removal
V iolation

Citation 1, Item 1 alleges a serious violation
of
29 C.F.R.
§
1910.147(e)(3) , which
provides:

( 3 )
Lockout or tagout devices removal.
Each lockout or tagout device shall be removed from each energy isolating device by the employee who applied the device.
Exception to paragraph (e)(3):
When the authorized employee who applied the lockout or tagout device is not available to remove it, that device may be removed under the direction of the employer, provided that specific procedures and training for such removal have been developed,
documented
and incorporated into the employer's energy control program. The employer shall demonstrate that the specific procedure provides equivalent safety to the removal of the device by the authorized employee who applied it. The specific procedure shall include at least the following elements:

( i )
Verification by the employer that the authorized employee who applied the device is not at the
facility;

( ii )
Making all reasonable efforts to contact the authorized employee to inform him/her that his/her lockout or tagout device has been removed; and

( iii )
Ensuring that the authorized employee has this knowledge before he/she resumes work at that facility.

29 C.F.R.
§
1910.147(e)(3) .
The Secretary alleges that Respondent violated section
1910.147(e)(3)
in the following manner:

[o]n or about May 17,
2022
maintenance employees working on and near the Dual Pass Rough Cull (DPRC #2) at the USPS P&DC facility were exposed to electrocution, electrical burns, and electric shock when the lockout device was removed by the employer and not by the employee who applied the device.

(Citation at 6.)

1. Relevant Facts

This citation item and the machine guarding citation item (Citation 2, Item 2) arise out of the same set of facts.

a. May 14, 2022

On Saturday, May 14, 2022, Vladimir Krat o chvil was servicing the DPRC
– a machine of which h e
is an “authorized employee” as deemed by Respondent – when he
heard a screeching noise and saw a belt
j erk. (Tr.
256-267,
265.)
Mr. Kratochvil stopped the DPRC,
put on his lock and tag, took off a machine guard and discovered a broken bearing and shaft. (Tr. 266-267.) Since it was near the end of his
shift, he called his supervisor
David Hamlin and left a voice message
notifying him that
the DPRC “was broken and I put a lock on it and take it out of service.” (Tr. 273-274.) He also testified that
he said in the voicemail that he had to leave
for the day
soon and he needed to remove his lock. (Tr. 274.) Mr. Hamlin testified that he received no
such
voicemail from Mr. Kratochvil
and if he had he would have “gone out onto the floor to investigate and as k
him what he was referring to
to
get specifics.” ( Tr. 871-872,
877 -878 .)

At that point, Mr. Kratochvil ran into
[ redacted]

and
told him his situation – that he had to leave and
remove his lock and “I couldn’t get anybody on the phone . ” (Tr. 275.) Mr. Kratochvil explained that he was not authorized overtime and he
“only had
about
ten minutes to put my tools away, get off the clock.” (Tr. 275 , 304 .) Mr.
Kratochvil testified that
[ redacted]

told
him that he would put his own lock on the DPRC. (Tr. 2 75.) Mr. Kratochvil then removed his lock, put his tools away and went home. (Tr. 276.)
He did not return to the worksite until Tuesday, May 17, 2022.

[ redacted]

testified
that he did not put on a lock on the DPRC at that time on May 14. (Tr. 372 , 380-382 .)
[ redacted]

explained
that
he told Mr. Kratochvil, “Well, if Dave [Hamlin’s]
coming over there, I’ll let him deal with it, because I
[ don’t ] want to have to deal with Dave Hamlin.” (Tr. 372.) [ redacted]

knew
then that Mr. Kratochvil had removed his lock from the DPRC. (Tr. 372-373.) [redacted]
’s tour ended at 3
p.m. , when he left for the day,
and he
also
did not return to the worksite until Tuesday, May 17, 2022. (Tr.
380- 38 2 .)

b. May 17, 2022

[ redacted]

testi fied
that , on May 17, 2022,
Mr.
Kratochvil came to him around 7
a.m.
and told him that the
DPRC was still not locked out and was still broken , and that he [Kratochvil] was going to report it at their 7:45
a.m.
safety meeting . (Tr. 382.) However,
Mr. Kratochvil
did not testify that he told
[ redacted]

the
DPRC was still not locked out and was still broken. 16

Mr. Kratochvil
testified that
after
arriving at work at 5
a.m.
on May 17 , he
did not inquire about the DPRC and the events on May 14. (Tr. 276-277.) He testified that he
does not recall attending the morning safety meeting on May 17. (Tr. 279-280). He testified that he “might have” returned to the DPRC at the end of his shift that day. (Tr. 277.) He testified that to the best of his knowledge, on May 17, he believed the guard was “still on the ground” where he had left it on May 14. (Tr. 285-286.)

In any event, on the morning of May 17,
[ redacted]

decided
to lockout the DPRC himself with one of his own
“extra
lock s”
before the 7:45
a.m.
safety meeting. (Tr. 382.) He turned off the machine, and locked and tagged it out as per its placard instructions. (Tr. 382-385 ; Ex. C-77 .) [ redacted]

decided
to lock out the DPRC himself because Mr. Kratochvil “didn’ t
have an ex t ra lockout/tago ut. I did, so that’s why …And since management
[Supervisor Hamlin]
failed to come
after an employee
[Kratochvil]
told them that the machine was broken, they never came and looked at it.” (Tr 386.)

[ redacted]

testified
that he
saw Supervisor William Bennet
walk
out of the 7:45
a.m.
safety meeting directly
to the DPRC and
“looked at it ,” and
looked “at the lockout and tagout on the po w er cabinet. He was at the p ow er cabinet that we pointe d out where the lights and everything were. ” ( Tr. 386-38 8 .)

Supervisor
Bennet t , however,
testified that he was not at the first morning meeting, he arrived at
7
a.m. , and may have attended the 7:45
a.m.
safety talk. (Tr. 811.) He also testified that he did not
go to
see the DPRC that day. (Tr. 806-808.)
[ redacted]

testified
that he did not
approach Mr. Bennett about his lock “because [Mr. Kratochvil] was reporting it again. So
I was letting [Mr. Kratochvil] take the lead on that.
I just put my lockout/tagout on it to do what management should have done on the 14 t h.” (Tr. 388.)

He further testified that he did not
notify any one
else – including
“ management, supervisors, managers or otherwise ”
– that he locked out the DPRC because “it had tota l ly spaced my mind [.]” (Tr. 391.) [ redacted]

testified
that his lock was still on the DPRC when he left for the day at 3
p.m.
(the end of Tour 2)
to the best of his knowledge. (Tr. 392. )

During Tour 3,
electronic technician
Gregory
Johnson
arrived a t
work and went to the
daily meeting where “pertinent
information
that needs to be relayed to
the
next tour” takes place. (Tr. 481 -483.) Mr. Johnson testified that he does not recall any discussion about the DPRC during that meeting. (Tr. 483 -484 .) He testified that he discovered
that the
DPRC
was locked out
when he was in the area
during his normal duties . (Tr. 4 8 3 , 486 .)
He testified that his supervisor is Justin Pulu. (Tr.
489.)

Supervisor P ulu
testified that Mr. Johnson called him
around 5
p.m.
a nd
asked about the DPRC “being locked out by the previous tour.” (Tr. 819 , 821 .) Mr. Pulu testified that he received
no information from previous tour management about the DPRC. (Tr. 819-820.) Mr. Pulu instructed Mr. Johnson to inspect the DPRC
to make sure it was safe and functional . (Tr. 492,
501 ,
824-825 .) Mr. Johnson testi fied
that he did not find anything abnormal – “I didn’t hear any really loud bearings or anything like that or everything – a l l the guards were
on
and the thing was operational.” (Tr. 511.) Mr. Johnson testif i ed, “on the day that I was to check out the machine, no, I did not see a cover [as it appeared in Ex. C-45 at 1524] like that. That
would have been a big red
. . . ”, and he would not have authorized the start of the machine. (Tr. 511-512 , 825-827 .)

Mr. Pulu testified that the cover did not look like the
“torn apart” cover pictured in
Ex. C-77 [the photograph sent by
[ redacted]

to
OSHA on May
18th ]
or he “would have reported
out
something like that.” (Tr. 837.)

Mr. Pulu testified that he followed “protocol” after checking out the lock. (Tr. 820.) He identified the lock as
[redacted]
’s and then called him over the radio and then over the PA system. (Tr. 820-821.) However, Mr. Pulu knew
[ redacted]

was
a worker for the previous tour and had left the worksite for the day. (Tr. 821 -822.) Mr. Pulu then called
[redacted]
’s “listed number 17 ” under Respondent’s
employee resource manag e ment
system
and got no answer. (Tr. 822-822 , 847 .) Mr. Pulu did not leave a voice message
for
[redacted ]
. (Tr. 822 , 848 .) [ redacted]

testified
that he received no such telephone calls from Mr. Pulu. (Tr. 398-399).
Mr. Pulu t estified that
[ redacted]

did
not follow “proper shift change” procedure by leaving for the day without contacting someone about his lock. (Tr. 841; Ex. C-49 at
226.)

After that, Mr. Pulu contacte d his own supervisor, Max Anguiano, and notified him of the situation – including inspecting the DPRC with Mr. Johnso n and discovering no issues. (Tr. 823 -825.) Mr. Pulu testified that Mr. Anguiano said he was going “to contact his boss , ”
who was “most
likely Jeff Moline.” (Tr. 825.) Mr. Anguiano then got back to Mr. Pulu and directed him to “cut the lock. He said if there’s no prior
knowledge
he said to run it and see if there’s any problems with it,
any issues. And, you know, if there’s no issues then process. Of course, he asked me whose lock was it.” (Tr. 826.). Mr. Pulu told Mr. Anguiano that it was
[redacted]
’s lock and that Mr. Pulu had attempted to contact him. (Tr. 826.) Mr. Pulu then cut the lock . (Tr. 826 ;
JSS ¶ 22.)

When Mr. Pulu then ran the machine, he made sure Mr. Johnson was there to observe
in accordance with proper procedure . (Tr. 827-828 , 841-842; Ex. C-49 at 226-227 .)
That evening, the DPRC ran with no “crazy” problems. (Tr. 513 , 829 , 854 .)

Mr. Pulu testified that had the DPRC ran with “a bad roller or bearer,” “we would have most likely heard it squealing and screaming and there might have been an issue with it.” (Tr. 865-866.)

Mr. Pulu placed
[redacted]
’s cut lock on
[redacted]
’s supervisor’s
desk. (Tr.
833-834 .) Mr. Pulu testified that
[redacted]
’s supervisor
[Dennis Erickson]
should have notified
[ redacted]

about
his lock the next time
[redacted]

came into the worksite. (Tr. 824 , 850 .) Mr. Pulu
sent an email documenting the situation to his management and
left the worksite that evening at 11
p.m.
(Tr. 829 , 851; Ex. C-47 .)

c. May 18, 2022

The next morning, o n May 18 ,
[ redacted]

arrived
at the worksite at 6:15
a.m.
and walked over to the DPRC
and saw that his lock had been cut
off from
the DPRC
and that it had
been
operated the prior night . (Tr. 400 , 403.) He also saw the “guard with the pieces of the broken metal on the ground” where he had observed it the prior day. (Tr. 416.) He then went to
his supervisor , Mr. Erickson, and asked him about his lock and tag. (Tr. 403.) Supervisor Erickson
told him it was on his desk and that he would give it to him after the
6:30
a.m.
safety meeting. (Tr. 403.)
[ redacted]

testified
that Supervisor Erickson said that
[redacted]

“caused [management] to
be aware that everybody didn’t have up-to-date tags and
they were
going to get everybo dy on the same page.” (Tr. 408.)

[ redacted]

told
Mr. Erickson that he was “supposed to be called,” when his lock was cut, to which Mr. Erickson re p lied, “ [ w ] ell, you’r e being told now.” (Tr. 408.) [ redacted]

testified
that
it was evident that
Mr. Erickson
was “in the dark” about his lock and
did not know why
[redacted]
’s lock was cut. (Tr. 409-41 0.) [ redacted]

also
testified that h ad someone asked him, he would have explained why he placed the lock on the DPRC on May 17. (Tr. 411.) [ redacted]

then
went to the morning meetings and went back to his work area. (Tr. 413.)

Later that day, Supervisor Erickson collected all improper lock s
and tags from employees , including
[redacted ]
. (Tr. 413-414.) Right b efore
he
left for the day at the
end of his sh ift,
[ redacted]

obtained
another lock from the parts room, wrote “J. King” on it, and locked out the DPRC again. (Tr. 414 -415 ; Ex. C-47 at 5 ; JSS ¶ 23 .) He did not notify anyone that he had again locked out the DPRC before leaving for the day , but he testified that he should have under proper procedure . (Tr.
417.)
[ redacted]

left
for the day at 3
p.m.
and
subsequently
sent CO Davis the email that prompted
OSHA’s
May 18 visit
of t he worksite. (Tr. 418-419 ; Ex. C-77 .)

During Tour 3,
Mr. Johnson
and Mr. Pulu
discovered the DPRC was again locked out. Mr. Johnson testified that h e saw
and heard
Mr. Pulu have a conversation on the telephone about cutting the lock. (Tr. 491 , 504 .) Mr. Pulu made no attempt to contact
[redacted ]
. (Tr. 422-424, 831.)

Mr. Johnson
watched Supervisor Pulu cut off the lock with a
bolt cutter
and remove the tag 18 . (Tr. 489-490 ; JSS ¶ 24 .) At the direction of Mr. Pulu,
Mr. Johnson put his lock on the DPRC
immediately after he saw Mr. Pulu cut off the lock . (Tr.
489,
493 , 495 , 835-836 , 864 ; Ex. C- 45 ;

JSS ¶ 25 .) About 15 minutes later,
at 7:30
p.m. ,
CO Davis arrived
at the worksite to
inspect
t he DPRC.
(Tr. 494-495 , 719; Ex. C-8 at 308 .)

2. The Secretary Failed to Establish that the Cited Standard Applies

The general industry LOTO standard, effective January 2, 1990, “covers the servicing and maintenance of machines and equipment in which the unexpected energization or
start up
of the machines or equipment, or release of stored energy could cause injury to employees.” 29 C.F.R. §1910.147(a)(1)( i ). The LOTO standard defines servicing and/or maintenance as “workplace activities” exposing an employee to the possibility of unexpected energization such as “constructing, installing, setting up, adjusting, inspecting” as well as “cleaning or unjamming” machines or equipment. 29 C.F.R. § 1910.147(b).

Gen. Motors Corp., CPCG Oklahoma City Plant , 22 BNA OSHC 1019 (Nos. 91-2834E & 91-2950, 2007) (“ CPCG ”). As the Secretary points out, “lockout and tagout devices must be affixed to each energy-isolating device by
authorized employees .” (Sec’y Br. 14) (emphasis added);
see also
29 C.F.R. §1910.147(d)(4)( i ) (“ Lockout or tagout devices shall be affixed to each energy isolating device by authorized employees.”)

OSHA has defined an “authorized person” as:

A person who locks out or tags out machines or equipment
in order to
perform servicing or maintenance on that machine or equipment. An affected employee becomes an authorized employee when that employee ’ s duties include performing servicing or maintenance covered under this section.

29 C.F.R. § 1910.147(b).
At issue in this case,
OSHA also requires certain procedures to be followed
if the authorized person
who affixed the lockout/tagout device is not available to remove it. 29 C.F.R. § 1910.147(e)(3)
(the cited standard) (emphasis added). The Secretary claims that Respondent violated these required procedures when Mr. Pulu removed
[redacted]
’s lock and
[ redacted]

was
not notified about it. (Sec’y Br. 6-7, 15.)

Therefore, to establish a violation of the cited standard, the Secretary must first establish that
[ redacted]

was
an “authorized person” with regard to the DPRC
in
May
of
2022 . The Secretary
has skipped over this analysis in her post-hearing brief.

Respondent, however, claims that
[ redacted]

was
not an authorized employee of the DPRC in May of 2022. ( Resp’t
Br. 2-6.) In fact, it is undisputed that Respondent did not consider
[ redacted]

an
“authorized person” for the DPRC.

Even CO Davis knew that Respondent did not consider
[ redacted]

an
“authorized person” for the DPRC. (Tr. 776-779.)

[ redacted]

testified
that his training on the DPRC had expired by May 14, 2022. (Tr. 362-363.) As such, according to Supervisor Hamlin,
[ redacted]

was
not an authorized employee of the DPRC on May 17, 2022. (Tr. 877-878, 880-881, 888.) This fact is consistent with his work schedule and the DPRC’s operating hours. [redacted]
’s tour hours were 6:30
a.m.
– 3
p.m.
and he worked the “AFCS area.” (Tr. 359.) The DPRC, while in that area 19 , only operates at night, as it is the machine that runs mail and the mail “usually arrives around 4:00 or 5 o’clock in the afternoon up until 1 or 2 o’clock in the morning.” (Tr. 954-956);
see also
Tr. 284. The DPRC only runs in the morning if maintenance is being performed on it. (Tr. 956.) [ redacted]

testified
that the DPRC is “not part of my daily routine.” (Tr. 391. )

What is
also
relevant here for the applicability analysis is whether the record supports a finding that
[ redacted]

was
an “authorized person” as OSHA has defined that term.
As noted above, OSHA considers someone to be an “authorized person” as “a person who locks out or tags out machines or equipment
in order to perform servicing or maintenance on that machine or equipment .” 29 C.F.R. § 1910.147(b) (emphasis added). The facts of the case establish that although
[ redacted]

may
have wanted servicing to be performed on the DPRC from May 14 – May 18, it is undisputed that
the DPRC was
in operation
until
late
May 1 8 ,
and underwent repairs only
after Mr. Johnson affixed his lock to the DPRC after Mr. Pulu removed
[redacted]
’s lock.

( JSS ¶  26
(“ The DPRC #2 was in operation at the Portland Plant on May 14, 2022, through May 18, 2022, until locked out by Mr. Johnson at the behest of Supervisor Pulu to conduct repairs to a roller and bearing.” ) . )

Indeed, the record shows that
[ redacted]

acted
because
no servicing was being performed on the DPRC.

The record also supports the finding that
[ redacted]

did
not intend to perform servicing or maintenance on the DPRC himself. He intended only to stop the machine from operating out of a perceived issue with the DPRC, not to perform servicing on it. In fact, even CO Davis testified that
[redacted]
’s purpose of locking out the machine was not to perform servicing of the DPRC, but to keep the DPRC from running out of concern for the safety of other employees. (Tr. 778-779.)

These facts fail to establish that
[ redacted]

was
an “authorized person” for the DPRC as OSHA has defined that term. As he was not an “authorized person,” then the cited standard cannot apply to the facts of this case. The Secretary has failed to establish applicability of the cited standard.

Citation 1, Item 1 is
VACATED.

D. Citation
2 , Item 1 – The Alleged
Lockout/Tagout Training
Violation

Citation
2 , Item 1 alleges a serious violation of 29
C.F.R.
§ 19 10 . 147 ( c ) (7)( i ) , which provides:

( i )
The employer shall provide training to ensure that the purpose and function of the energy control program are understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees. The training shall include the following:

( A )
Each authorized employee shall receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation and control.

( B )
Each affected employee shall be instructed in the purpose and use of the energy control procedure.

( C )
All other employees whose work operations are or may be in an area where energy control procedures may be utilized, shall be instructed about the procedure, and about the prohibition relating to attempts to restart or reenergize machines or equipment which are locked out or tagged out.

29 C.F.R. § 1910.147(c)(7)(i). The Secretary alleges that Respondent violated section 1910.147(c)(7)(i)
in the following manner:

On or about December 3 rd , 2021, and at times prior thereto, the U.S. Postal Service did not provide the required machine-specific training to ensure that employees acquired the knowledge and skills required for the safe application, usage, and removal of energy control devices. Maintenance employees who were performing routine, preventative, and non-scheduled maintenance and repairs on post and parcel processing equipment at the Portland, OR, P&DC location were exposed to electrocution, entanglement, electrical shock, caught in, and pinched by hazards in the event of unexpected energization.

(Citation at 7.)

Here, based on Respondent’s internal management directives, the Secretary claims that all of Respondent maintenance employees (“level 7 and above”) are “authorized employees” as defined by OSHA and “subject to the LOTO training requirement of 29 C.F.R. § 1910.147(c)(7)( i )(A).” (Sec’y Br. 18-19.) Respondent claims that the Secretary “never identified a specific emp l oyee that was perfor m ing a maintenance task for which a lock out was required that they were not trained or certified to perform.” ( Resp’t
Br. 7-8.) Respondent’s argument is consiste nt with Commission precedent.

In
CPCG , the Commission stated:

To determine applicability of the standard’s initial training requirements in this case, we evaluate below the evidence of each citation item individually, examining whether the record establishes that each employee was assigned to perform servicing or maintenance during the limitations period on equipment at the GM plant which poses the hazard of unexpected energization.

CPCG ,
22 BNA OSHC at 1030 . The record
overwhelmingly
supports a finding that the machinery at the worksite each have their own ECP s , that Respondent ’s
employees work near the machinery, that some of Respondent ’ s workers
service and maintain that equipment, and
that
Respondent
required
additional specific lockout/tagout training
in those procedures
for those workers who perform service and maintenance on specific pieces of machinery . See ,
e.g. , JSS ¶¶  8-20.
This finding is consistent with OSHA’s definition of those employees who must be trained under the cited standard: authorized, affected and
all
other employees. 20 29 C.F.R. § 1910.147(c)(7)( i ).

The Court, however, finds that the Secretary has failed to establish
the applicability of the cited standard to individual workers.

CPCG ,
22 BNA OSHC at 1030 .

The
Commission
looks
at
the
precise testimony of a witness to determine the applicability of the training standards to
determine
whether that employee was an “authorized” person as defined by OSHA (not the employer).
Id. at 1033-1039 . E a ch of the mechanic /technician
witnesses
here
knew what training was required to be an
“a uthorized ”
person, as defined by the USPS , and they had received the specialized
lockout/tagout training to work on assigned equipment .

(Tr. 32-33, 40, 45 (Ashby);
63-65 (Dillard); 94-97, 100, 127 (Drain);
210-213 (Adams); 256-257, 262-263 (Kratochvil);
321-322 (Fox); 357-359 (King); 477-478, 480 (Johnson)).
Th is
supports a finding
there was
sufficient training for “authorized employees” in th eir job tasks . 29 C.F.R. §§ 1910.147(c)(7)( i )(B), (C). This also supports a finding of sufficient training for “affected” employees, as defined by OSHA, which requires less training than an authorized employee but more than “all other employees.”

The Cour t , however,
has not located testimony in the record
to
determine whether any of the witness es
perform ed
a specific task
without the necessary
lockout/tagout training
during the applicable citation period . There is testimony that
Mr. Dillard
was “assigne d”
to
a machine
prior to
training, but the record does not elucidate the
assigned
task that was at issue
at the time.
(Tr. 64, 78-79, 83.) The Secretary points to
[redacted]
complaint for those working on the K-Row, but the Secretary does not connect the
complaint
to
whether “ each employee was assigned to perform servicing or maintenance during the limitations period on equipment [on the K-Row] which poses the hazard of unexpected energization.” CPCG ,
22 BNA OSHC 1030 .
Respondent
also
points out that some tasks are performed daily under a group lockout/tagout situation , which would not require “authorized employee” status because there would be no risk of unexpected energization to that employee under a group lockout . (Tr. 919-920.) The Secretary does not address the possibility that the instances raised in her brief might fall under a group lockout situation.

The Secretary argues that the
“woefully insufficient” and “glaring absence of legible”
training documentation – despite multiple requests from OSHA – warrants an adverse inference that no such training occurred. (Sec’y Br.
24.) Mr. Adams, however, testified that Respondent’s
training
document
record keeping has been
inconsistent for
the past two years. (Tr. 234-236.) The Secretary has not addressed this testimony. Other evidence in the record suggests that Respondent is chall e nged to keep up with administrative tasks – such as
when Mr. Erickson collected all
“improper” locks and tags, and when Mr.
Chiniewicz
testified that
“things get lost.” (Tr.
408, 413-414,
540.) The Secretary also did not cite Respondent for a recordkeeping violation. As such, there is enough
evidence
in this record to not make an adverse inference
based on inadequate training records. Fluor Daniel , 19 BNA OSHC 1529, 1531 (No. 96-1729, 2001) (consolidated) (“Although the Commission may draw reasonable inferences from the evidence, we do not think that the evidence in this case supports such an inference.”),
aff’d , 295 F.3d 1232 (11th Cir. 2002).

The Court therefore finds that the Secretary has failed to establish a pplicabil i ty and non-compliance
f or this citation item.
Citation
2 , Item 1 is VACATED.

E. Citation
2 , Item 2 – The Alleged
Machine Guarding Violation

Citation
2 , Item 2 (b)
alleges a
repeat- serious violation of 29
C.F.R.
§ 19 10 . 212(a)(1) , which provides:

(a)
Machine guarding
—

( 1 )
Types of guarding.
One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic
safety devices, etc.

29 C.F.R. § 1910.212(a)(1). The Secretary alleges that Respondent violated section
1910.212(a)(1)
in the following manner:

On or about May 18, 2022, and at times prior thereto, employees working on and near the Dual Pass Rough Cull (DPRC #2) at the USPS P&DC facility were exposed to broken bones, lacerations, and mild transient loss of function when a broken bearing and shaft were left exposed.

(Citation at 9.) Respondent claims that the Secretary did not establish that the
DPRC ever operated without the guard in place. ( Resp’t
Br. 13-14.) The Court agrees with Respondent. The Secretary has failed to establish non-compliance with the cited standard.

As noted above, it is undisputed that the
“ DPRC
was in operation at the Portland Plant on
May 14, 2022, through May 18, 2022, until locked out by Mr. Johnson at the behest of Supervisor Pulu to conduct repairs to a roller and bearing.” ( JSS ¶ 26.) What is in dispute is whether
the DPRC
operated without the guard in place
during that timeframe . 29 C.F.R. § 1910.212(a)(1). The evidence in the record related to this fact is sparse.
In fact, the Secretary cites
only
to
pictures taken during CO Davis’s inspection ,
and Mr. Kratochvil and
[redacted]
’s testimonies that the inspection picture s
“capture the
condition
of the [DPRC] that they witnessed days ea rlier on May 14 th [.]” ( Sec’y Br. 28-29.) This evidence does not establish that the DRPC operated without the guard in place; the evidence establish es only that the guard was not in place during OSHA’s inspection and when Mr. Kratochvil and Mr. Johnson
saw it
after Mr. Kratochvil removed it
from
lockout .
As noted above, the DPRC does not run during Tour 2, and so Mr. Kratochvil and
[ redacted]

( both Tour 2 employees )
did not testify that they saw the DPRC run without the guard in place.

The Secretary claims that Mr. Johnson
saw the unaffixed guard on the ground as well.
(Sec’y Br. 27
citing Tr. 499.) Mr. Johnson , however,
was
actually testifying
about when he saw the guard on the ground after OSHA’s inspection:

Q. And specifically from May 17 to May 18 up until the date -- up until the time you put your lock on, did you ever observe the guard shown on this photo on the ground by the DPRC number 2?

A. There was the one
incident
and I don't remember if it was the day that OSHA showed up or if it was the day the --
the
next day, I don't recall.
But they actually had it locked out and they had torn
apart
and they were starting to do repairs on it on that day.

Q. Okay.
So
isn ’ t it true that repairs were commenced after OSHA showed up on May 18th ?

A. I mean, I guess at some point there would have to be repairs and either that cover was off that day or it was taken off the next day and relocked out to do repairs.

(Tr. 499)
(emphasis added). Instead,
Mr. Johnson
testified that when he inspected the DPR C
on May 17,
the DPRC operated
normally,
and all the guards were in place.

(Tr. 511.)
This testimony corroborates
the
only
other probative evidence on this issue. Mr. Pulu and
Mr. Moline
testified that they never saw any guards out of place when they looked at the DPRC on May 17 and May 18. (Tr.
837,
897, 957.)
Mr. Pulu also testified that the DPRC ran during his tour (Tour 3) with no incident on the dates in question. (Tr. 827, 865-866.) The Secretary claims that Supervisor Bennett should have seen the violative condition when he walked to the DPRC on May 17. (Sec’y Br. 28.) Supervisor Bennett, however,
testified that he did not go to see the DPRC that day. (Tr. 806-808.)

The Court finds that the record does not establish non-compliance with the cited standard. Citation
2 , Item 2 (b)
is VACATED.

ORDER

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. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
Citation 1, Item
1, Citation 2, Item 1, and Citation 2, Item 2
are VACATED.

SO
ORDERED.

/s/Christopher D. Helms

Date:
February 27, 2024

Denver, Colorado

Christopher D. Helms

Judge, OSHRC

"

1
By Order dated March 7, 2023, the Citation was amended such that the alleged violation description for Citation 2, Item 1 was updated.
See
Order Granting Secretary of Labor’s Notice of Motion and Motion for Leave to Amend Citation 1, Item 1 of the Complaint; Declaration of Luis A. Garcia in Support Thereof (Mar. 7, 2023).

2
Initially, Citation 2, Item 2 involved two instances, Instance A and Instance B. However, the parties settled Instance A on March 14, 2023, and that matter was severed and terminated from the current case. See
Order Terminating Proceedings (No. 23-0183, Mar. 23, 2023), Order of Severance (Nos. 22-0742 & 23-0183, Mar. 15, 2023), and Amended Joint Notification of Partial Settlement (No. 23-0183, Mar. 14, 2023). Thus, only the following items are at issue in this matter: Citation 1, Item 1; Citation 2, Item 1; and Citation 2, Item 2 Instance B.

3
The specific duty hours vary within these tour hour ranges. (Sec’y Br. 2 n.2.)

4
It is unknown on this record just how many different machines are in Respondent’s 850,000 square-feet worksite.

5
The Court will refer to a specific piece of machinery using the acronym/term found in the record. While most of the machines are referred to using an acronym, many of the acronyms are not consistently or fully explained within the record.

6
Tasks such as vacuuming seem to be considered
lower-level
tasks. (Tr. 335).

7
Respondent also designates as “other employees” “all other employees whose work operations
are, or
may be in an area where energy control procedures may be utilized.” (Ex. C-23 at 969.) Respondent requires the “other employees” to be trained like “affected employees.” (Ex. C-23 at 969.)

8
The record seems to suggest that both “authorized employees” and “affected employees” regularly participate in a group lockout in the Portland worksite. (Tr. 240-241, 919-920.)

9
It is noted that none of these officials was presented as a witness at the hearing except for Mr.
Chiniewicz. It is further noted that Mr.
Chiniewicz
was asked no questions regarding his experience during this opening conference.

10
CO Davis had also visited the facility on May 5, 2022,
regarding the NEC Canceler, which was the subject of Instance A of Citation 2, Item 2. As noted above, Instance A of Citation 2, Item 2 was settled by the parties and is no longer at issue.

11
Section 657(f)(1) of the Act states the following in pertinent part:

Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section.

29 U.S.C. § 657(f)(1). Similarly, 29 C.F.R. § 1903.11(a) provides in pertinent part:

Any employee or representative of employees who believe that a violation of the Act exists in any workplace where such employee is employed may request an inspection of such workplace by giving notice of the alleged violation to the Area Director or to a Compliance Safety and Health Officer. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employee or representative of employees. A copy shall be provided the employer or his agent by the Area Director or Compliance Safety and Health Officer no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available by the Department of Labor.

29 C.F.R.
§
1903.11(a).

12
This argument was rejected for various reasons in the Order as part of the denial of the Motion to Dismiss. The reasoning and legal conclusions in that Order are hereby incorporated by reference.

13
As noted in the
March 20,
2023
Order, n either party has addressed whether Respondent, a public agency, has any reasonable expectation of privacy and thus whether it is afforded protections as a “person” under the Fourth Amendment. The Court has been unable to locate case law on this issue, but other courts have not raised such concerns when addressing related issues involving another public agency. See, e.g.,
Nat’l
Eng’g & Contracting Co. v. Occupational Safety & Health Admin., U.S.
Dep’t
of Lab. ,
928 F. 2d 762 , 765 (6th Cir. 1991) (finding Army Corp of Engineers “could validly consent to OSHA’s inspection” in the context of being “the contractor of a multi-employer construction site.”). As neither party raises the issue, the Court has not found contrary law, and
the end result
is the same per this Decision, the Court does not address this issue.

14
This new claim is adjudicated herein, but Respondent’s previous claim within its Motion to Dismiss is hereby deemed abandoned. L&L Painting Co. , 23 BNA OSHC 1986, 1989 n.5 (No. 05-0055, 2012) (item not addressed in post-hearing briefs deemed abandoned);
Midwest Masonry Inc. , 19 BNA OSHC 1540, 1543 n.5 (No. 00-0322, 2001) (argument not raised in post-hearing briefs deemed abandoned).

15
The Commission has held that where it is highly probable that a case will be appealed to a particular circuit, it generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission’s precedent.
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

16
In response to being asked about whether he spoke with Mr. King about the DPRC on May 17, Mr. Kratochvil testified that Mr. King approached him and told him that “they cut his lock and removed it” from the DPRC. (Tr. 277.) As Respondent points out, this statement is inconsistent with the stipulated facts that establish that Mr. King applied the first lock on May 17, and that lock was not cut off until tour 3 by Mr. Pulu after the end of both shifts of Mr. Kratochvil and Mr. King. (Resp’t
Br. at 6.) The Court therefore assigns no weight to this statement.

17
There are no telephone numbers in the record.

18
This testimony – that Mr. Johnson saw Mr. Pulu remove Mr. King’s tag – is inconsistent with the record evidence that Mr. King’s second lock was not accompanied by a tag. (Ex. Tr. 414-415; Ex. C-47 at 5.)

19
Mr. King testified that the DPRC is “probably 45, 50 feet” from the “ESS 3 and 4” in the AFCS area, which is where he was stationed on May 14, 2022. (Tr. 379.)

20
Definitions in this section include:

Authorized employee.
A person who locks out or tags out machines or equipment
in order to
perform servicing or maintenance on that machine or equipment. An affected employee becomes an authorized employee when that employee's duties include performing servicing or maintenance covered under this section.

Affected employee.
An employee whose job requires him/her to operate or use a machine or equipment on which
servicing
or maintenance is being performed under lockout or tagout, or whose job requires him/her to work in an area in which such servicing or maintenance is being performed.

Servicing and/or maintenance.
Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment. These activities include lubrication, cleaning or unjamming of machines or equipment and
making adjustments
or tool changes, where the employee may be exposed to the
unexpected
energization or startup of the equipment or release of hazardous energy.

29 C.F.R. § 1910.147(b)
(“Definitions applicable to this section”).