KyKenKee, Inc.

Plain-English summary

KyKenKee operated an Alabama sawmill where a worker was fatally struck by a log that fell from a debarker conveyor. An administrative law judge found that the company should have fenced or posted the hazardous area around the ring barker and its conveyors. The judge reduced the violation from willful to serious and assessed a $5,000 penalty. After that decision was docketed, the parties filed a settlement agreement and the Commission invited employee objections. No objections were received, so the Commission approved the settlement and gave the judge's decision the status of an unreviewed decision. The official release does not reproduce the settlement terms.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.265(d)(4)(iii)
• Outcome: The Commission approved the parties' settlement after receiving no employee objections; the settlement terms are not included in the release.
• Key point: A Commission order approving a post-decision settlement may leave the judge's underlying decision with unreviewed, nonprecedential status.

Full text (OSHRC public release)

United States of America

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 11-1886

KYKENKEE, INC.,

Respondent.

FINAL ORDER

After the Administrative Law Judge’s Decision and Order in this case was
docketed with the Commission, the Secretary filed the parties’ Settlement Agreement.
The Commission directed this case for review and ordered the parties’ legal counsel to
file with the Commission by facsimile any employee objections to the Agreement no later
than December 28, 2012. No objections were received.

Having reviewed the record, the Commission approves the Settlement Agreement.
Commission Rule 100, 29 C.F.R. § 2200.100. The Commission accords the judge’s
Decision and Order the status of an unreviewed judge’s decision. Leone Constr. Co. , 3
BNA OSHC 1979, 1981, 1975-75 CCH OSHD ¶ 20,387, p.24,322 (No. 4090, 1976)
(unreviewed judge’s decision does not constitute binding Commission precedent).

SO ORDERED.

BY DIRECTION OF THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

Dated: December 31, 2012                         /s/                                                    

John X. Cerveny                                                                                                                       Deputy Executive Secretary

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant

v.

OSHRC Docket No. 11-1886

KyKenKee, Inc.,

Respondent.

Appearances:

Jennifer Booth Thomas, Esquire, Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee

For Complainant

John J. Coleman, Esquire and Ryan M. Aday, Esquire, Burr & Forman, LLP, Birmingham, Alabama

For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

KyKenKee, Inc. (KyK) operates a sawmill business in Vance, Alabama. On
December 31, 2010, a KyK employee, as he walked through the debarking area, was
fatally struck on the head when a log weighing approximately 160 pounds, fell from the
out-feed conveyor of the barker machine. The Occupational Safety and Health
Administration (OSHA) was notified of the fatality and initiated an inspection.

After a wall-to-wall inspection by an OSHA safety compliance officer, KyK
received serious, willful, and other than serious Citations issued on June 27, 2011. As a
result of an informal settlement meeting, the parties resolved the serious and other than
serious Citation Nos. 1 and 3 and signed a partial settlement agreement on July 19, 2011
(Tr. 4). KyK timely contested the willful Citation No 2.

Citation No. 2 alleges a willful violation of 29 C.F.R. § 1910.265(d)(4)(iii) (item
1) for failing to fence off or post as a prohibited area the ring barker and its conveyors.
The willful Citation proposes a penalty of $70,000.00.

The hearing on KyK’s contest was held on May 30 - June 1, 2012, in Birmingham,
Alabama. The parties stipulated jurisdiction and coverage (Tr. 4-5). Post-hearing briefs
were filed on August 20, 2012.

KyK denies the alleged violation and the willful classification. KyK asks the court
to follow the Administrative Law Judge’s (ALJ) decision in Moser Lumber Company , 1
BNA OSHC 3108 (No. 1221, 1973) which found the terms “hazardous area” and
“unauthorized persons” in § 1910.265(d)(4)(iii) vague and unenforceable. KyK also
asserts the standard does not apply to its barker machine because it is a pneumatic
debarker and claims the employee who died was engaged in unpreventable employee
misconduct.

For the reasons discussed, KyK’s violation of § 1910.265(d)(4)(iii) is affirmed as
serious violation and a penalty of $5,000.00 is assessed.

The Inspection

KyK has operated a sawmill business at its two-mill facility in Vance, Alabama
since 1964. The facility consists of the old saw mill, new saw mill, old planer mill, and
new planer mill. KyK is a family owned business started by the grandfather and is
currently operated by three brothers. At the time of the accident, KyK employed
approximately 175 employees, many of whom speak only Spanish and a Mayan dialect
(Exh. R-1; Tr. 362, 377, 405-407).

In the old saw mill area, where the accident occurred, the logs are cut and, by a
conveyor, are fed into a barker machine which removes the bark. After the debarking
process, the logs continue on the conveyor to an area where they are cut into board
lengths according to customers’ specifications. The boards are then taken to the stacker
area where the boards remain to dry before further processing or shipped to customers.
Essentially, the same barker machine and conveyor system configuration has existed
since 1991. The old saw mill supervisor is the nephew of the company president. The
old saw mill produces approximately 600,000 board feet of lumber per week and employs
approximately 30 employees (Tr. 341, 403, 408-410, 411).

The in-feed conveyor moves the cut logs into the barker machine which is a 40-inch Nicholson pneumatic air seal ring debarker. The in-feed and out-feed conveyors and
the barker machine are approximately 13 feet above the ground level and are controlled
by an operator who works inside a house (shed) at the machine. The operator is the only
employee assigned to the debarker area and he controls the logs throughout the debarking
process. The barker machine runs continuously throughout the shift except for the lunch
hour. There is a dirt road in front of the debarking area used by forklifts traveling back
and forth (Exh. R-3; Tr. 19, 342, 344, 393-394, 412, 419).

It is undisputed that at the time of the accident, there was no fence or posted signs
prohibiting employees from walking through the debarking area. Instead, KyK verbally
warned “employees from being in the area in, under, or around the debarker and either
side of the debarker conveyor while the debarker is operating” (Tr. 65-66, 381-382).

On December 31, 2010, a laborer who worked in the stacker area died while
walking pass the out-feed conveyor to the barker machine. The laborer had been hired in
the middle of 2009. He spoke a Mayan dialect. The log, approximately 8 inches in
diameter and weighing 160 pounds, fell from the conveyor and struck him on the head.
At the time, the barker machine was operated by the relief operator during the morning
break (Tr. 19, 461, 522-523).

After reporting the fatality, an OSHA safety compliance officer, on December 31,
2010, initiated a wall-to-wall inspection of the KyK sawmill. This was his first sawmill
inspection. As part of the inspection, he took photographs of the debarker area and
interviewed employees. The day after the accident, KyK installed a fence in front of the
out-feed conveyor and a railing along the conveyor trough. Also, warning signs were
posted in front of the conveyor (Exhs. C-8B, C-8C, R-4; Tr. 16, 121, 131).

On June 27, 2011, KyK received the willful citation at issue.

Discussion

In order to establish a violation of a safety standard, the Secretary has the burden
of proving:

(a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access
to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation ( i.e., the employer
either knew or, with the exercise of reasonable diligence
could have known, of the violative conditions). Atlantic
Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Willful Citation No. 2

Item 1 - Alleged Violation of §1910.265(d)(4)(iii)

The citation’s alleged violation description states that “On or about 12/31/2010 –
Old Saw Mill department, the ring debarker conveyor area was not fenced off and
warning signs were not posted.” Section 1910.265(d)(4)(iii) provides:

Area around barkers. The hazardous area around ring barkers
and their conveyors shall be fenced off or posted as a
prohibited area for unauthorized persons.

Application of the Standard

There is no dispute that OSHA’s Sawmill standards at § 1910.265 apply to KyK’s
sawmill in Vance, Alabama.

1. KyK’s Vague and Unenforceable Argument

KyK argues the standard, § 1910.265(d)(4)(iii), is unenforceable. KyK relies on
an ALJ’ decision in Moser Lumber Company , 1 BNA OSHC 3108 (No. 1221, 1973)
which vacated the alleged violation on the basis that the terms “hazardous area” and
“unauthorized persons” as used in the standard are vague and meaningless. The Sawmill
standards at §1910.265 contain no definitions of “hazardous area” and “unauthorized
persons.” Since issuance of the Moser decision, OSHA has not issued any written
interpretations and no other Commission decisions have been located addressing the
standard.

The Moser decision is not binding on this court. It is an un-reviewed Commission
decision and is not considered precedent. Elliot Construction Corp. , 2012 WL 3875594
n. 4 (No. 07-1578, August 28, 2012). In reviewing the decision, the ALJ rendered only
conclusions and offered no reasoning or evaluation to support his conclusions. Despite
numerous revisions to the general industry standards in Part 1910, OSHA has not
withdrawn § 1910.265(d)(4)(iii) and it remains in effect.

The Commission has repeatedly addressed the issue of interpreting a standard and
has outlined various principles in evaluating whether a standard is impermissibly vague.
A standard, such as § 1910.265(d)(4)(iii), needs to be interpreted in a reasonable manner
consistent with a common sense understanding. Globe Industries Inc. , 10 BNA OSHC
1596, 1598 (No. 77-4313, 1982). Its words are viewed in context and judged in light of
their application to the facts of the case. Their meanings are discerned from the purpose
of the standard and the physical conditions to which it applies by reference to objective
criteria, including the knowledge and perception of a reasonable person. ConAgra Flour
Milling Co. , 16 BNA OSHC 1137, 1140 (No. 88-1250, 1993). The evidence as to current
industry practice is relevant but is not dispositive. Baker Tank Co. , 17 BNA OSHC 1177,
1179 (No. 90-1786-S, 1995). Also, the Commission does not impose drafting
requirements of mathematical precision or impossible specificity as long as a reasonable
person, knowledgeable of the circumstances, can discern the standards application.
Ormet Corp. 14 BNA OSHC 2134, 2135 (No. 85-531, 1991).

In applying these principles, §1910.265(d)(4)(iii) is not impermissibly vague and
the terms “hazardous area” and “authorized persons” have common sense meaning
applicable to KyK’s debarking area. As evident by its verbal warning to employees, KyK
was aware of a hazard from falling logs, in the debarking area and attempted to abate it by
verbally warning employees to stay away from the area while the barker machine was
operating. KyK’s president acknowledges the area around the barker machine
particularly the conveyors was a dangerous area (Tr. 419-420). He agreed that there was
a potential of logs falling in the area where the employee was struck on the head. He
described logs “teepeeing up” and could potentially fall out of the conveyor (Tr. 395-396). The maintenance supervisor and old mill supervisor also admitted to OSHA during
their interviews that logs were falling from the conveyors (Exhs. C-2, C-3).

The relief
operator agreed logs were falling from the conveyors at the debarking area “once and
awhile” (Exh. C-6).

The same reasonable person test applies to “unauthorized persons.” Although no
warning sign was posted at the debarking area, KyK posted a sign at the entry to the
sawmill restricting non-employees access to company property (Exh. R-9; Tr. 367). KyK
attempted to also restrict employees, other than the operator or his relief, from accessing
the area during debarking by verbally warning employees to stay away from the area.
KyK understands what “unauthorized persons” means. An unauthorized person clearly
encompasses anyone not otherwise required to work in the debarking area. The only
KyK employees authorized in the debarking area during normal operation were the barker
machine operator, the relief operator, and maintenance employees who perform necessary
repairs and maintenance on the equipment.

KyK president was aware of the OSHA’s Sawmill standards prior to the accident
(Tr. 415). He attempted to define the hazardous area by use of a verbal warning to all
unauthorized persons to stay away from the area during operation. He agrees that the
debarking area was hazardous and no one, not otherwise authorized, should be in the area
(Tr. 412-413, 419).

Section 1910.265(d)(4)(iii) is a performance standard which allows an employer,
such as KyK, flexibility at its own worksite in complying with its requirements by
fencing off or posting signs as a dangerous area around the barker machine and its
conveyors. KyK is in the best position to determine the best location to place the fence or
post signs identifying the hazardous area and prohibiting employees’ access. As
described by the Secretary’s expert, the standard is:

written in such a way as allow employers flexibility in
complying with the standards so that they can perform in such
a way, because there are varying types of sawmills, varying
types of sizes and models and makes of machinery and setups,
the performance language of an OSHA standard will allow
flexibility to the employer to comply with the standard rather
than putting—and that’s as opposed to a specification
standard that sets out a specific specification, such as the
height of a guardrail or the size of a pipe for a guardrail or
even a safety distance (Tr. 302).

The parameters of the hazardous area in this case may be determined by evaluating the
length and diameter of the logs, the height of the machine and conveyor system above the
ground, the frequency which the conveyor is malfunctioning and jamming logs, and
communicating with anyone who directly works around the area (Tr. 228).

KyK’s argument that a verbal warning is equivalent to “posted” as required by
§1910.265(d)(4)(iii), is rejected. “Posted” as contemplated by the standard and its
common sense meaning requires a physical sign. A verbal warning “to stay away” is too
general and ambiguous as opposed to posted signs or a fence which clearly identifies the
area as hazardous and delineates the safe distance to maintain from the barker machine
and its conveyors. Unlike a sign or fence, a verbal warning allows each employee to
decide for himself the size of the hazardous area to avoid. Because KyK’s multi-lingual
workforce, posted signs may be written in any language or commonly understood
symbols prohibiting access may be used.

Section 1910.265(d)(4)(iii) is not vague simply because its application requires the
exercise of judgment. Dravo Corp. , 7 BNA OSHC 2095, 2098 (No. 16317, 1980).
Viewed in context, the terms “hazardous area” and “unauthorized persons” have meaning
and are not impermissibly vague.

2. KyK’s Pneumatic Barker Is a Mechanical Ring Barker

KyK argues that its pneumatic barker is not a “mechanical barker” as required by
§1910.265(d)(4). KyK asserts its barker machine is a pneumatic air seal ring barker and
that unlike a mechanical barker, the operator has “total control” of the knife arms because
of the pneumatics. According to KyK, on a mechanical barker, once the knife arms are
set in a fixed position with pressure, they cannot be released (Tr. 344, 393). KyK’s
expert, based on his discussions with KyK, described the barker with “hydraulic hold-downs and pneumatic components” (Tr. 583-584).

The Secretary’s expert testified, based on reviewing photographs of the barker
machine, that it was a mechanical ring barker with pneumatic cylinders. The barker
machine utilizes pneumatic cylinders in the ring to apply pressure to the tool arms and
cutting tools which peels the bark from the logs. He opined the barker machine is
mechanical because it mechanically peels bark off the log (Exh. C-15; Tr. 596, 601). He
explained that it is also possible for a ring barker to utilize hydraulic cylinders to apply
pressure to the tool arms (Exh. C-17; Tr. 596). His testimony is given weight based on
his extensive knowledge and work in the sawmill industry (Exhs. C-7, C-12).

Although the standard may have been written before pneumatic, “mechanical” as
used in §1910.265(d)(4) has a broad meaning to include any ring barker. The parties
agree that the barker machine at KyK is a ring barker. The pneumatics which does not
change the mechanical nature of the barker machine allows the operator to control the
pressure on the cutting blades as the log goes through the machine. The system powering
the blades whether air pressure, hydraulic pressure, or electric does not mean the barker
machine is not mechanical. Mechanical applies broadly to the machine and not restricted
to the power sources of the blades. KyK’s pneumatic barker is a ring barker and §
1910.265(d)(4)(iii) applies.

Compliance with §1910.265(d)(4)

KyK agrees that at the time of the accident, there was no fence or posted signs
prohibiting employees’ access to the area near the barker machine and its conveyors, in-feed and out-feed conveyors (Tr. 492). Although the accident occurred at the out-feed
conveyor, the OSHA citation’s alleged violation description refers to the “conveyor area”
and is not restricted to the out-feed conveyor. Based on the 1991 OSHA inspection and
citations, KyK was aware that OSHA had Sawmill standards applicable to its facility.
KyK agrees that “by definition, sawmill operations can be hazardous” (Resp. Brief, p. 4).
Its president agrees that the area around the barker machine, particularly the conveyors,
was a dangerous area (Tr. 419-420).

The terms of § 1910.265(d)(4)(iii) were not complied with by KyK.

Employee Exposure

In order to establish employee exposure, the Secretary must show that it is
reasonably predictable either by operational necessity or otherwise (including
inadvertence), that employees have been, are, or will be in the zone of danger. The
inquiry is more than whether exposure is theoretically possible. Fabricated Metal
Products, Inc. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). Employees must have
been, are, or will be in the ''zone of danger'' either during their assigned working duties,
their personal comfort activities while on the jobsite, or their movement along normal
routes of ingress to or egress from their assigned workplaces. Kaspar Electroplating
Corp., 16 BNA OSHC 1517, 1521 (No. 90-2866, 1993).

As evident by the accident and KyK’s verbal warnings to employees, it was
reasonably predictable that employees, through necessity or inadvertence, pass through
the debarking area during operation. The debarking area was in an open, outdoor area
and located in the approximate middle of the old saw mill. There were no physical
barriers that would prohibit employees from entering the area where the laborer was
killed. KyK acknowledges an awareness of the danger to employees in the debarking
area and that employees may pass through the area. KyK has repeatedly had to warn
employees to stay away from the conveyors during debarking operations. The old mill
supervisor testified that he has disciplined an employee for violating the verbal work rule
(Tr. 473).

It is clear that the standard requires a physical restriction upon the inadvertent or
accidental entry into the hazardous area. An employee’s knowledge of the hazardous area
based on a verbal rule is not an adequate substitute for fencing or posting. Tobacco River
Lumber Company , 3 BNA OSHC 1059, 1064 (No. 1694, 1975) (The Review Commission
found physical fencing required under § 1910.265(e)(5)(iii). “Mental fences might serve
to reduce the probability of intentional entry but they do nothing to prevent accidental
entry.”).

KyK’s expert’s testimony regarding the lack of exposure is accorded no weight.
His opinion was conclusive and presumed that the company’s verbal rule was fully
complied with (Tr. 575-576). He claimed that KyK’s verbal work rule warning
employees to stay away from the area was sufficient. His testimony ignores the specific
requirements of the standard which provides for fencing off or posting signs as the
prohibited area. He has a lack of expertise in the area of sawmills (Tr. 548, 550). His
opinions were limited to employee exposure which is a legal conclusion and properly
excluded. Erickson Air-Crane, Inc. , 2012 CCH OSHD 33,199, p. 55,760 n. 7 (No. 07-0645, 2012).

Either through necessity or inadvertence, employees were exposed to the
hazardous area of the barker machine and its conveyors. Employees’ exposure to the area
was reasonably predictable.

KyK’s Knowledge

As the last element of her burden of proof, the Secretary must show KyK knew or
should have known, with exercise of reasonable diligence, of the violative condition. The
employer’s knowledge element is directed to the physical conditions that constitute a
violation. It is not necessary to show that KyK understood or acknowledged that the
physical conditions were actually hazardous. Phoenix Roofing, Inc ., 17 BNA OSHC
1076, 1079-1080 (No. 90-2148, 1995) aff’d without published opinion , 79 F.3d 1146 (5th
Cir. 1996). When a standard prescribes specific means of enhancing employee safety,
such fencing or posted signage as in this case, a hazard is presumed to exist if the terms of
the standard are violated. Clifford B. Hannay & Son , Inc. 6 BNA OSHC 1335, 1337 (No.
15983, 1978).

In support of its argument that it lacked knowledge of logs falling off the conveyor
at the barker machine, KyK relies on the testimony of the old mill supervisor and the
maintenance supervisor. Both employees denied logs were falling off the conveyor
system, particularly the out-feed conveyor (Tr. 427, 470).

Both supervisors’ denials are specifically contradicted by their written interview
statements given to the OSHA compliance officer. Their claims that the statements were
inaccurate or fabricated by the OSHA compliance officer, are rejected (Exhs. C-2, C-3).
The employees agree that the statements contain their signatures and on at least one page
their initials showing a change (Tr. 437, 440, 510-511). Their claims that the other pages
do not reflect what they said, is contrary to common sense and the lack of motivation by
the compliance officer.

The court accepts, under Fed. Rules of Evidence 801(d)(2), the statements based
on evaluating the demeanor and credibility of the witnesses. The compliance officer
specifically denied changing or altering the statements. He exhibited no animus towards
KyK or its officers. He had never inspected the company until this inspection. Also, the
statements were witnessed by another compliance officer (Tr. 630-631).

On the other hand, both supervisors are still employed by KyK and one supervisor
is the nephew of the president. During their testimony, the supervisors appeared nervous,
cautious, and rehearsed in avoiding responses particularly when addressing their
statements. Although the compliance officer may have failed to obtain the employees’
initials on each page, the accuracy of the statements is not affected. The supervisors
acknowledge being interviewed, signing the statements, and given an opportunity to read
the statements or have them read to them. They could and did make corrections to their
statements.

Despite their denials, the maintenance supervisor told OSHA that logs fell in the
area where the employee died at “maybe one a month” for “one year or so” (Exh. C-2 p.
4). The old mill supervisor agreed in his statement that logs were falling from the
conveyor once a month (Exh. C-3, p. 3). The relief barker operator told OSHA that logs
were falling weekly and employees were passing through the area to take shortcuts to the
breakroom and restroom (Tr. 51). The operator stated that “it was expected that logs
would jam and fall” (Tr. 52). His statement to OSHA is consistent with the statement he
gave to the Tuscaloosa County Sheriff investigating the death (Exh. C-6). KyK president
testified that he witnessed logs “teepee up” on the conveyor and that the logs could
potentially fall (Tr. 396). Even the old mill supervisor conceded that logs can teepee-up
and might fall out of the conveyor (Tr. 529).

As supervisors responsible for the safety of the employees, their knowledge of the
violative condition is imputed to KyK. Dover Elevator Co . 16 BNA OSHC 1281, 1286
(No. 91-862, 1993).

Employee Misconduct

KyK asserts that the employee who died was engaged in misconduct by not
complying with KyK’s verbal warning, given to all employees, to stay away from the
debarking area during operations. In order to establish an affirmative defense of
unpreventable employee misconduct, an employer must show that (1) it has established a
work rule designed to prevent the violation; (2) it has adequately communicated the rule
to its employees; (3) it has taken steps to discover violations of the rule; and, (4) it has
effectively enforced the rule when violations are discovered. American Sterilizer Co ., 18
BNA OSHC 1082, 1087 (No. 91-2494, 1997).

KyK’s employee misconduct defense is rejected. KyK’s verbal rule does not
replace the fence or posted sign requirement of the standard. The verbal rule merely
instructed employees “to stay from the area” which is too general and vague. It
inadequately defined the parameters of the hazardous area around the debarking area.
The verbal rule is not a substitute for the abatement requirement (fencing or posting) of
the standard. Other than verbal warnings to employees who violated the verbal rule, there
was no showing of written discipline records or that KyK had a progressive discipline
program.

A work rule is defined as an employer directive that requires or proscribes certain
conduct and that is communicated to employees in such a manner that its mandatory
nature is made explicit and its scope clearly understood. J.K. Butler Builders, Inc ., 5
BNA OSHC 1075, 1076 (No. 12354, 1977) (employer’s warning to employees to avoid
unsafe areas was “too general to be an effective work rule”). A work rule must be clear
enough to eliminate the employees’ exposure to the hazard covered by the standard and
must be designed to prevent the cited violation. Beta Construction Co. , 16 BNA OSHC
1435, 1444 (No. 91-102, 1993). Unlike KyK’s verbal rule, the rule must be sufficiently
precise to implement the requirements of a standard or be functionally equivalent to it. A
verbal work rule as at KyK, leads to uncertainty of its effectiveness in preventing
employee exposure to the hazard.

KyK merely told employees to stay away from an undefined area and gave verbal
warnings to employees who violated the unclear and general rule. Such a vague warning
is not a work rule and is ineffective because it allows employee discretion in how to
comply. Also, it is noted that many employees spoke Spanish or a Mayan dialect that
KyK management could not speak. The company had to rely on other bi-lingual
employees to translate its verbal instructions (Tr. 398).

An employee misconduct defense is not established.

Willful Classification

OSHA classified KyK’s violation of § 1910.265(d)(4)(iii) as willful. “[I]t is well
settled that a willful violation is one committed with intentional, knowing or voluntary
disregard for the requirements of the Act, or with plain indifference to employee safety.”
Continental Roof Systems, Inc ., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997). A
willful violation is differentiated from other classifications by the heightened awareness
of the illegality of the conduct or conditions and by a state of conscious disregard or plain
indifference when the employer committed the violation. Hern Iron Works, Inc ., 16 BNA
OSHC 1206, 1214 (No. 89-433, 1993).

OSHA claims that KyK exhibited “plain indifference” to employee safety
(Secretary Brief, p. 7). The record, however, fails to show the requisite heightened
awareness. Other than the accident, there is no history in the past 40 years of other
injuries to employees in the debarking area from falling logs. KyK believed in good faith
that its verbal rule was sufficient. Although not as effective as the requirements of §
1910.265(d)(4)(iii), the company had a well-recognized rule warning employees from
walking in the area of the barker machine. KyK provided initial training and regular
follow-up training to each of its employees concerning specific safety issues including its
verbal rule to stay clear of barker machine and its conveyor during operation. The
compliance officer agreed that the employees were warned to avoid the debarking area
(Tr. 65-66). Also, KyK provided elevated catwalks and designated walk-areas through
the facility for employees to use (Tr. 361, 471). The Secretary’s reliance on the 1991
OSHA citation is misplaced and does not show plain indifference (Exh. C-5). The prior
citation did not contain a violation of § 1910.265(d)(4)(iii). Also, 1991 inspection may
indicate that OSHA previously did not consider a need for fencing or posting in the
debarking area.

A willful classification is not established.

PENALTY CONSIDERATION

Section 17(j) of the Occupational Safety and Health Act requires that when assessing
penalties, the Commission must give due consideration to four criteria: (1) the size of the
employer’s business, (2) the gravity of the violation, (3) the good faith of the employer,
and (4) the prior history of violations. 29 U. S. C. § 666(j). The gravity of the violation
is the primary consideration in assessing penalties. Trinity Industries, Inc., 15 BNA
OSHC 1481, 1483 (No. 88-2691, 1992).

KyK , as a large employer with 175 employees, is not given credit for size. KyK is
entitled to credit for history and good faith because of its safety program and employee
training and its lack of prior OSHA citations since 1991.

A penalty of $5,000.00 is reasonable for KyK’s violation of § 1910.265(d)(4)(iii).
Although inadequate, the company did have a recognized verbal rule which it trained and
enforced to keep employees away from the barker machine. There is no record of any
prior employee injuries in the debarking area.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED:

Citation No. 2, item 1, alleged willful violation of § 1910.265(d)(4)(iii), is
affirmed as serious and a penalty of $ 5,000.00, is assessed.

SO ORDERED.

/s/

____

Date:       November 13, 2012                                                      KEN S. WELSCH                                                                                                                   Administrative Law Judge