Timberline Hardwood Floors LLC

Read the official release (oshrc.gov)

Plain-English summary

Timberline manufactured hardwood flooring with woodworking machinery at the same facility used by a predecessor company under the same manager. OSHA cited extensive deficiencies involving hearing conservation, hazard communication, exits, fire-extinguisher training, machine guarding, compressed air, electrical equipment, lockout/tagout, and powered industrial truck training. The judge found that the manager had signed 2012 abatement certifications for several of the same hazards, yet the successor operation continued without the promised programs and protections. The hearing-conservation, hazard-communication, lockout/tagout, and forklift violations were affirmed as willful, with repeat and other classifications addressed in the alternative. Most other items were affirmed as serious, one electrical item was vacated, and another item was withdrawn before trial. The judge assessed total penalties of $166,265 across the two consolidated dockets.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(c)(1); 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(g)(1); 29 C.F.R. § 1910.1200(h)(1); 29 C.F.R. § 1910.36(d)(1); 29 C.F.R. § 1910.37(b)(6); 29 C.F.R. § 1910.157(g)(1); 29 C.F.R. § 1910.212(a)(1); 29 C.F.R. § 1910.242(b); 29 C.F.R. § 1910.303(g)(2)(i); 29 C.F.R. § 1910.305(b)(1)(ii); 29 C.F.R. § 1910.305(b)(2)(i); 29 C.F.R. § 1910.147(c)(1); 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.178(l)(1)(i)
• Outcome: Nearly all citation items were affirmed, one electrical item was vacated, one item was withdrawn, and total penalties of $166,265 were assessed.
• Key point: Prior citations and signed abatement certifications can establish heightened awareness and support willful classifications when the same operation continues without the promised safety programs.

Full text (OSHRC public release)

TIMBERLINE HARDWOOD FLOORS LLC, OSHRC Docket Nos. 18-1211 and 18-1212 (Consolidated)

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No s . 1 8 - 1211

T IMBERLINE
H ARDWOOD
F LOORS
LLC ,

and 18-1212
(Consolidated)

Respondent.

Appearances:    Kate S. O’Scannlain , Solicitor of Labor

Jeffrey S. Rogoff , Regional Solicitor

Susan B. Jacobs, Senior Trial Attorney

U.S. Department of Labor, Office of the Solicitor,
New York, NY

For the Secretary
of Labor

Andrew J. Ryan,
Esq.

Woods Oviatt Gilman LLP

1900 Bausch & Lomb Place

Rochester ,
NY 14604

For Respondent

Before:       The Honorable
Dennis L. Phillips

U.S. OSHRC Judge

DECISION AND ORDER

I. BACKGROUND

In 2012, Timberline Hardwood Dimensions, Inc.
(THD) , a company
co- owned by Thomas
A.
Vavra
(Thomas Vavra or Mr. Vavra) , settled and affirmed Occupational Safety and Health Administration (OSHA) citation items for violations of the same hearing conservation, lockout/tagout, forklift training and hazard communication standards in 2012 as are at issue in the instant case. In August 2012, a s part of the settlement of those 2012 citations, Mr. Vavra
personally signed abatement certifications
on behalf of THD
containing detailed explanations of how every citation item had been abated.

Mr. Vavra
is the
co-owner and sole manager of
Timberline Hardwood Floors LLC (Respondent or Timberline) .
In
January 2018,
O SHA initiated an inspection of
Timberline ’s worksite located at 99 Harris Street, Fulton, New York 13069 .

Respondent is a hardwood flooring manufacturer. It is
located at the same
address
as
THD .
Respondent
does the
s ame type of work, uses the same
machinery
and employs most of the same workers as T HD . OSHA
found that THD
and Respondent
had
not
taken
any a ction
since 2012
to establish a hearing conservation program, train employees on noise, require employees to have
hearing tests/ audiograms
(also audio grams) , or ensure that employees always wore hearing protection. Similarly,
OSHA found that
Mr. Vavra misrepresented that in April 2012 he had developed and implemented an energy control program and procedures for servicing and maint ai n ing the
hazardous machines
at THD that had been cited by OSHA.

OSHA also found that
THD
had not
abated
its
2012 hazardous communication and forklift
violations .

On July 25, 2018, Respondent contested
the
three citations
OSHA
issued to it on July 3, 2018
p ursuant to section 9(a) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. § 651
et seq .) (the OSH Act).
(Exs. 1, 20). A trial on the merits was conducted o n
December 10 and
11, 2019 , in
Syracuse, New York . Both parties filed post-trial briefs on April 27, 2020. 1

On May 12, 2020, Complainant filed his Reply Brief.

II. STIPULATIONS OF FACT AND LAW

The following facts
and law
were stipulated
to by both parties in the
J oint
Pre-H earing
St atement
(Jt. Pre-Hrg. Stmt.)
and the stipulations were accepted by the Court.

( Jt. Pre-Hrg.
Stmt.;
Tr. 36)

A. Docket No. 18-1211

1 .    Jurisdiction of this action is conferred upon the Occupational Safety a nd Health Review Commission by s ection 10(c) of the Act.

( Jt. Pre-Hrg. Stmt.,
§ 5).

2. Respondent Timberline Hardwood Floors LLC, a co rporation doing business in the
   State of New York, maintaining its principal office and place of business at 99 Harris Street, Fulton, New York 13069, at all relevant times is and was engaged in the manufacturing of hardwood flooring and related activities.

( Jt. Pre-Hrg. Stmt.,
§ 4(a) ) .

3 .    Many of the materials and supplies used and/or manufactured by Respondent originated and/or were shipped from outside the State of New York and the Respondent was and is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the OSH Act and is an employer within the meaning o f section 3(5) of the Act.

( Jt. Pre-Hrg. Stmt.,
§ 4(b) ) .

4 .    On or about July 3, 2018, Complainant issued one citation to Respondent alleging violations at a worksite located at 99 Harris Street, Fulton, New York 13069.

( Jt. Pre-Hrg. Stmt.,
§ 4(c) ) .

5. By letter dated July 25, 2018, Respondent timely notified Complainant of its intent to contest the citation.

( Jt. Pre-Hrg. Stmt . ,
§ 4(d) ) .

6. Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.95(c)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 1a).

( Jt. Pre-Hrg. Stmt.,
§ 4(e) ) .

7. On August 30, 2012, Thomas Vavra signed an abatement certification on behalf of Timberline Hardwood Dimensions, Inc. certifying that the violation of 29 C.F.R. §
   1910.95(c)(1) contained in the citation issued in Inspection No. 331026 had been corrected/abated on April 22, 2012.

( Jt. Pre-Hrg. Stmt.,
§ 4(f) ) .

8. Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.1200(e)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 2a).

( Jt. Pre-Hrg. Stmt.,
§ 4(g) ) .

9. Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.1200(g)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 2b).

( Jt. Pre-Hrg. Stmt.,
§ 4(h) ) .

10. On August 30, 2012, Thomas Vavra signed abatement certification on behalf of Timberline Hardwood Dimensions, Inc. certifying that the violations of 29 C.F.R. § 1910.1200(e)(1) and §1910.1200(g)(1) contained in the citation issued for Inspection No. 331026 had been corrected/abated on April 23, 2012.

( Jt. Pre-Hrg. Stmt.,
§ 4(i) ) .

11. Thomas Vavra signed a Stipulated Settlement on behalf of Timberline Hardwood Dimensions, Inc. affirming the citations for violation of 29 C.F.R. § 1910.95(c), § 1910.1200(e)(1) and § 1910.1200(g)(1) in Inspection No. 331026.

( Jt. Pre-Hrg. Stmt.,
§ 4(j) ) .

12. The citations issued to Timberline Hardwood Dimensions on June 12, 2012 in Inspection No. 331026 became a final order of the Occupational Safety and Health Review Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt.,
§ 4(k) ) .

13. Thomas Vavra was an owner of Timberline Hardwood Dimensions, Inc. in 2012 and 2013.

( Jt. Pre-Hrg. Stmt.
§ 4(l) ) .

14. Thomas Vavra was an owner of Timberline Hardwood Floors LLC in 2018.

( Jt. Pre-Hrg. Stmt.,
§ 4(m) ) .

15. The assets of Timberline Hardwood Dimensions, Inc. were transferred to
    Timberline Hardwood Floors LLC.

( Jt. Pre-Hrg. Stmt.,
§ 4(n) ) .

B. Docket No. 18-1212

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

( Jt. Pre-Hrg. Stmt.,
§ 5).

2. Respondent Timberline Hardwood Floors LLC, a corporation doing business in the State of New York, maintaining its principal office and place of business at 99 Harris Street, Fulton, New York 13069, is and at all relevant times was engaged in the manufacturing of hardwood flooring and related activities.

( Jt. Pre-Hrg. Stmt.,
§ 4(a) ) .

3. Many of the materials and supplies used and/or manufactured by Respondent originated and/or were shipped from outside the State of New York and the Respondent was and is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act and is an employer within the meaning of section 3(5) of the Act.

( Jt. Pre-Hrg. Stmt.,
§ 4(b) ) .

4. On or about July 3, 2018, Complainant issued two citations to Respondent alleging violations at a worksite located at 99 Harris Street, Fulton, New York 13069.

( Jt. Pre-Hrg. Stmt.,
§ 4(c) ) .

5. By letter dated July 25, 2018, Respondent timely notified Complainant of its intent to contest the citations.

( Jt. Pre-Hrg. Stmt.,
§ 4(d) ) .

6. Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.147(c)(1) on June 12, 2012 in Inspection No. 330566 (Citation 1, Item 3).

( Jt. Pre-Hrg. Stmt.,
§ 4(e) ) .

7. Timberline Hardwood Dimensions, Inc. was issued a “Serious” citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) on June 12, 2012 in Inspection No. 330566 (Citation 1,
   Item 4).

( Jt. Pre-Hrg. Stmt.,
§ 4(f) ) .

8. On August 30, 2012, Thomas Vavra signed abatement certification on behalf of Timberline Hardwood Dimensions, Inc. certifying that the violations of 29 C.F.R. § 1910.147(c)(1) and § 1910.178(l)(1)(i) contained in the citation issued for Inspection No. 330566 had been corrected/abated in April 2012.

( Jt. Pre-Hrg. Stmt.,
§ 4(g) ) .

9. T homas Vavra signed a Stipulated Settlement on behalf of Timberline Hardwood Dimensions, Inc. affirming the citations for violation of 29 C.F.R. § 1910.147(c)(1) and § 1910.178(l)(1)(i) in Inspection No. 330566.

( Jt. Pre-Hrg. Stmt.,
§ 4(h) ) .

10. The citations issued to Timberline Hardwood Dimensions, Inc. on June 12, 2012 in Inspection No. 330566 became a final order of the Occupational Safety and Health Review Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt.,
§ 4(i) ) .

11. Thomas Vavra was an owner of Timberline Hardwood Dimensions, Inc. in 2012 and 2013.

( Jt. Pre-Hrg. Stmt.,
§ 4(j) ) .

12. Thomas Vavra was an owner of Timberline Hardwood Floors LLC in 2018.

( Jt. Pre-Hrg. Stmt.,
§ 4(k) ) .

13. The assets of Timberline Hardwood Dimensions, Inc. were transferred to Timberline Hardwood Floors LLC.

( Jt. Pre-Hrg. Stmt.,
§ 4(l) ) .

I I I. FINDINGS
OF FACTS

A. Respondent’s Corporate Identity and Operations

Respondent
is
a corporation doing business in the State of New York, maintaining its principal office and place of business at 99 Harris Street, Fulton, New York 13069 . It
is and at all relevant times was engaged in the manufacturing of hardwood flooring and related activities.
( Jt. Pre-Hrg. Stmt.,
§ 4(a); Tr. 324 ) .
Timberline
was registered with the New York State
Department of State on July 10, 2009.

(Ex. 37).
Thomas
Vavra
has been the President and 50% co-owner of Respondent since
at least
2014.

(Tr.
323 - 24; Ex. 38 , at
10 -11 ; Jt. Pre-Hrg. Stmt., §§ 4(k)(m) ).

Respondent’s other 50% co-owner is a silent partner , Mr. Cucit,
who
is not involved in running the business.

(Tr. 324; Ex. 38 , at
9 -12 ) .
Thomas Vavra has run the day-to-day operations of Respondent on his own since
at least
2014.

(Tr. 324; Ex. 38 , at
11 -12 ).

Melissa Vavra, Thomas Vavra’s wife, is
Respondent’s
Secretary.

(Tr. 325; Ex. 38 , at
13).
Thomas and Melissa Vavra are
Respondent’s
only officers .

(Tr. 325).

In 2017 and 2018, Thomas Vavra was responsible for Respondent’s safety programs, training Respondent’s employees on safety ,
and ensuring Respondent’s compliance with OSHA standards.

(Tr. 325 - 26; Ex. 38 , at
13 - 14). On January 11, 2018,
Respondent had
about ten to
fourteen
employees . 2

(Tr.
51,
231, 235,
364 ). OSHA had not inspected
Respondent
in t he five years
that preceded its
issuance of the
citations in this case.

(Tr. 57-58, 267-68).

Prior to running Respondent, Thomas Vavra co-owned and managed
THD .

(Tr. 326; Ex.

38 , at 14 -15 ).
THD
was registered with the New York State Department of Corporations on July 10,
2000. (Ex. 36).
He was the
Chief Executive Officer and
THD’s
only officer listed with the New York State Department of Corporations.

(Ex. 36).
In 2012, T HD
operated its workplace out of the same address as Respondent
at 99 Harris Street, Fulton, New York .

(Tr. 32 4-2 6; Exs. 29 - 30, 33, 38 , at
16 ; Jt. Pre-Hrg. Stmt., §4(a) ). THD
also manufactured hardwood flooring.

(Tr. 326, Ex. 38 , at
14).
In 2012, Thomas Vavra ran
THD’s
day-to-day operations .

(Tr. 326, Ex. 38 , at
14-15).

In 2014, T HD
restructured into Timberline Hardwood Floors LLC.

(Tr. 326 - 27). THD’s
assets
were transferred to Respondent with no payments made for those assets.

(Tr. 327; Ex. 38 , at
18 - 19 ; Jt. Pre-Hrg. Stmt., § §
4( l ) , (n) ).
Its equipment and machinery
were
also obtained by Respondent at no cost. (Tr. 32 4-2 8;
Ex. 38, at 19). Most of T HD ’s employees went to work for Respondent after the restructuring.

(Tr. 327, 364 ,
438 ,
464 ,
494 ;
Ex. 38 , at
19).
Other than ownership structure, there was no difference between T HD
and Timberline.

(Tr. 328; Ex. 38 , at
19-20). THD
ceased operations sometime after 2012.

(Tr. 328 ;
Ex. 38 , at
16-17).

The only safety program Respondent maintained is contained in its Employee Handbook which was written by Melissa Vavra.

(Tr. 57, 331; Ex. 8 , at
7-8, Ex. 18 , at
1,
¶¶ 1-2, 8 - 9, Ex. 28 , at
1,
¶ 1, Ex. 38 , at
32-33).

B. OSHA’s Inspection
Nos. 1287433 (Health) and 1286609 (Safety)

On or about January 9, 2018, OSHA ’s
Syracuse Area Office opened a programmed safety inspection of Respondent’s workplace pursuant to an emphasis program on amputations. Timberline was randomly selected.
(Tr. 47- 50 ). Respondent’s workplace consists of approximately 80,000 square feet, 8,000 of which is the mill where most of the
employees
work.

The remainder of the building is used as a warehouse, where raw material, lumber, and finished product
are
stored. (Tr. 397-98). Respondent’s employ ees use upcut saws, a planer, a
moulder, 3
a rip saw /ripper
and other woodworking equipment to manufacture the hardwood flooring. (Tr. 51 , 378 - 79, 419 - 20, 439, 465-66; Exs. 9, 13-15 ).

OSHA
Compliance Safety and Health Officer (CSHO) Lydia
Ginette
Calderon
Hernandez (Calderon)
initiated her onsite inspection
of Respondent’s workplace on January 9, 2018 and held an opening conference with Thomas Vavra,
who identified himself as the
owner
of the company. 4

(Tr.
45,
48, 50). On that day, CSHO Calderon observed that it was very loud in the workplace . She
made a referral to the Syracuse Area Office for a health inspection of the workplace. (Tr. 49 , 175 ). As a result of CSHO Calderon’s referral, OSHA
Senior
Industrial Hygienist (IH) Donalea
Marie
Maloney was assigned to conduct a health inspection of
Respondent’s
workplace. 5 On January 11, 2018, IH Maloney accompanied CSHO Calderon to the workplace and initiated a health inspection that included noise sampling . 6

(Tr. 174 - 75). On that day, IH Maloney conducted an opening conference with Anthony Vavra, 7
who identified himself as a co-owner with his brother Thomas Vavra.

(Tr. 50-51, 176 - 77). IH Maloney subsequently met Thomas Vavra that same day and explained the purpose of her inspection. (Tr. 177). IH Maloney described Respondent’s facility as a “big warehouse, a lot of area, with stacking of wood floors. And then there was an area where the actual cutting and processing was taking place.” (Tr. 177-78). CSHO Calderon also continued her onsite safety inspection on January 11, 2018.

(Tr. 51).

CSHO Calderon and IH Maloney visited the workplace again on January 19 and February 20, 2018. 8 (Tr. 48, 175-76). During
both the safety and health
inspection s , CSHO
Calderon and IH Maloney
observed
and documented various unsafe conditions at the
workplace .

C. OSHA’s Noise Sampling

IH Maloney conducted noise sampling at the workplace on January 11, 2018 by following standard OSHA procedures.

(Tr. 185). Prior to going to the workplace that day, IH
Maloney pre-calibrated all six of the dosimeters 9 /pumps that she was planning to use to sample noise exposure for Respondent’s employees using a Dupont dosimeter calibrator (serial number 012002) in order to ensure that the dosimeters were all calibrated properly. 10

(Tr. 186 - 8 8 , 191-92, 197 - 200; Exs.
22, 39 -45). In addition, IH Maloney pre-calibrated
a
sound level meter 11
when she arrived at Respondent’s workplace on January 11, 2018. 12

(Tr. 194, 201 - 02 ;
Exs. 46-53). IH Maloney then recorded
all of
the pre-calibration data on her field notes. 13

(Tr. 185 -87 , 197 -201 ; Ex. 22 ,
at
1).

On January 11, 2018, IH Maloney performed noise sampling on six of Respondent’s employees :

Messrs.
[redacted] , 14
[redacted] , 15
[redacted] , 16
[redacted] , 17
[redacted] 18
and
[redacted] , 19
by hanging a dosimeter on each employee’s waist and placing the attached microphone close to his ear. 20

(Tr. 202; Ex. 21 ,
at
1 - 4 , Ex. 23 ). The dosimeters were worn by
the employees that day from approximately 10:00 a.m. until around 2:30 p.m.

(Tr. 203; Ex. 22 ,
at
2, Ex. 23). Work stopped that day at around 2:30 p.m. because there was no more wood to cut.

(Tr. 203; Ex. 22 , at
3). IH Maloney then took the readings from the dosimeters and recorded
the readings
on her field notes. The relevant data recorded on her field notes are each employee’s name, the dosimeter’s serial number, the dose percentage reading at the 80 threshold ((66) DOSE % 80) 21 , average decibels (LAVG dB) ,
and total time the dosimeter was on the employee.

(Tr. 203 - 0 6 ; Ex. 22 , at
2 - 3).

IH Maloney used the data recorded from the dosimeters to calculate whether or not the
six
employees were exposed over the time-weighted average
(TWA)
at the 80 percentage/85 decibels
(dBA
or decibels )
on the A weighted scale
threshold on Noise Survey Reports (Form OSHA-92).

(Tr. 214 - 1 5 , 274, 301 ; Ex. 23). IH Maloney focused on the 80 percentage/85 d BA
threshold because she had sampled the employees for
only
about four and a half hours
due to the wood running out . 22

(Tr. 215, 247; Ex. 22 , at
2). The Noise Survey Reports contain the calculations of the eight-hour
TWA
sound level
f or all six employees using the formula mandated in Appendix A to § 1910.95, section
I( 2).

(Tr. 219 - 23; Ex. 23). 23 That section of Appendix A provides that the eight-hour
TWA
sound level ,
in decibels, may be computed from the dose, in percent, by means of the formula:

TWA = 16.61 log (Dose/100) + 90 .

All six
employees who were sampled
on January 11, 2018
were exposed at an eight-hour
TWA
sound level above the
85
d BA
threshold.

(Tr.
220,
228, 245 - 46; Ex. 20 , at
6-7, Ex. 23).

For example, IH Maloney calculated the eight-hour TWA for
Mr.
[redacted] ,
who was loading wood into the end matcher
and the machine was cutting the wood , as follows:

69.9 (Dose at 80%) divided by 100 = 0.699

Log of .699 = -0.1555

-0.1555 multiplied by 16.61 = -2.583

-2.583 plus 90 =
87 .42
TWA 24

(Tr. 223 - 2 5 ; Ex. 23 , at
1).

Further, IH Maloney calculated the eight-hour TWA for
Mr.
[redacted] , as follows:

137.6 (Dose at 80%) divided by 100 = 1.376

Log of 1.376 = 0.1386

0.1386 multiplied by 16.61 = 2.302

2.302 plus 90 =
92.30
TWA

(Tr.
102,
227 ;
Ex. 23 , at
9).

In addition, IH Maloney also used a hand-held sound level meter to conduct instantaneous background noise readings while employees were working throughout the day at the workplace and recorded those readings in columns A and B on the Noise Survey Reports. (Tr. 194, 219; Exs. 23, 46 - 47). The noise level readings taken with the sound level meter were also over the action level of 85 decibels.

(Tr. 194, 219; Exs. 23, 46 - 47).

D. Docket No. 18-1211

1. Citation 1, Item 1

Based on noise sampling performed by
I H Maloney on January 11, 2018 ,
six of Respondent’s employees
working
in the mill area of the workplace were exposed to continuous noise above the eight-hour TWA sound level of 85 dBA.

(Tr. 181, 185, 220, 225 -228 ; Ex. 20 , at
6-7, Ex s . 22 - 23).

Thomas Vavra was notified on or about June 12, 2012 that in April 2012 employees engaged in woodworking activities at the workplace were exposed to noise levels above the eight-hour
TWA
average sound level of 85 dBA.

(Tr. 341, 346; Ex. 33 , at
2, Ex. 38 , at
50) .

Respondent has never administered a hearing conservation program. 25

(Tr. 181 - 82,
277,
343 -44 , 398 ;
Ex. 28 , at 1-2,
¶¶ 3-4, Ex. 38 , at
45-46, 52).
Respondent failed to ensure that audiograms/hearing tests were performed as required on employees when information indicated that the employees were exposed to noise levels above the eight-hour
TWA
sound level of 85 dBA. 26

(Tr. 182, 185, 227,
301,
34 1-51 , 420, 461, 477 - 78, 485, 499-50 2 ; Ex. 28 , at 1-2,
¶ 4, Ex. 33 , at
2, Ex. 38 , at
49, 53-54 ) .
Respondent failed to train employees on the hazards of exposure to noise. 27

(Tr. 182-83, 344, 349 - 50; Ex. 28 ,
at
2,
¶¶ 9-10, Ex. 38 , at
49, 53).
Respondent failed to ensure that employees who had not received baseline audiograms/hearing tests always wore some type of hearing protection when information indicated that the employees were exposed to noise levels above the eight-hour
TWA
sound level of 85 dBA. 28

(Tr. 183, 250 - 51, 341, 344 - 46; Ex. 21 , at
2, Ex. 28 ,
at
2,
¶ 9, Ex. 33 , at
2, Ex. 38 , at
48 -49,
53).
Respondent failed to do any
monitoring of noise levels when information indicated that employees were exposed to noise levels above the eight-hour
TWA
sound level of 85 dBA.

(Tr. 346 - 4 9 ; Ex. 33 , at
2, Ex. 38 , at
49-50).
Respondent’s failure to institute a hearing conservation program as required by 29 C.F.R. § 1910.95(c)(1) exposed at least six of Respondent’s employees to the serious injury of hearing loss.

(Tr. 231-32 ,
251).

T HD
was issued a citation for “Serious” violation of 29 C.F.R. § 1910.95(c)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 1a).

( Jt. Pre-Hrg. Stmt. ,
§ 4(e);
Tr.

341;
Ex. 33 ,
at
2 ) .
On August 30, 2012, Thomas Vavra signed an abatement certification on behalf of T HD
certifying that the violation of 29 C.F.R. § 1910.95(c)(1) contained in the citation issued in Inspection No. 331026 had been corrected/abated on April 22, 2012. 29

( Jt. Pre-Hrg. Stmt. ,
§ 4(f) ; Tr. 342 - 43; Ex. 34 ) .
On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that
the violation of 29 C.F.R. § 1910.95(c)(1) contained in the citation issued in Inspection No. 331026 had been
abated.

(Tr. 356; Ex. 30).
In November 2012,
Thomas Vavra signed a Stipulated Settlement on behalf of T HD
affirming the citation
for violation of 29 C.F.R. § 1910.95(c )(1)
in Inspection No. 331026
and certifying that the violation had been abated .

( Jt. Pre-Hrg. Stmt. ,
§ 4(j) ; Tr. 341 -42 ; Ex. 35 ) .
The representations made in the abatement certification, letter to OSHA and Stipulated Settlement all signed by Thomas Vavra relating to abatement of the citation for violation of 29 C.F.R. § 1910.95(c)(1)
in Inspection No. 331026
were , at best,
inaccurate .

(Tr. 343 - 4 7 , 350; Exs. 30 - 32, Ex. 38 , at
52-53).
The citation issued to T HD
on June 12, 2012
for violation of 29 C.F.R. § 1910.95(c)(1)
in Inspection No. 331026 became a final order of the Occupational Safety and
Health Review Commission
(Commission)
on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(k) ) .
The violation of 29 C.F.R. § 1910.95(c) contained in the
2012
citation for Inspection No. 331026 was substantially
similar to
the violation of 29 C.F.R. § 1910.95(c)(1) as cited in Citation 1, Item 1 in
Docket No. 18-1211 .

2. Citation 1, Items 2a, 2b and 2c

Respondent
did not
develop, implement and/or maintain a written hazard communication program at its workplace
on January 11, 2018 . 30

(Tr. 233 - 35, 351, 401; Ex. 8 , at
7-8, Ex. 20 , at
8,
Ex. 28, at 2, ¶¶ 6-8,
Ex. 38 ,
54-55, 58).
Hazardous chemicals and materials such as propane, 31
TC bed lubricant and various types of wood/wood dust , including white oak, red oak, maple, hickory, che r ry ,
and
walnut,
were present and used in the workplace
on January 11, 2018 .

The presence of these hazardous chemicals or materials at Respondent’s workplace required a written hazard communication program.

(Tr. 233-34, 237 - 39, 402 - 03, 456-57, 478; Exs. 24-27, Ex. 38 , at
54- 55 ) .
Both Thomas and Anthony Vavra knew that hazardous chemicals and materials were present at the workplace. (Tr. 235). At the time of the OSHA
2018
inspection, Respondent did not have any safety data sheets at the workplace for propane, TC bed lubricant or wood/wood dust
that employees were exposed to daily . 32
(Tr. 236-37, 351 - 52, 356;
Ex. 28, at 2, ¶ 8,
Ex. 38 , at
56 - 58).
Respondent
also did not
provide information or training to employees on the hazardous chemicals and materials in their work area
at the time of their initial assignment and whenever a new hazard was introduced into their work area. 33

(Tr. 240 - 41, 352, 355-56 , 486 ;
Ex. 28, at 2, ¶¶ 7, 10,
Ex. 38 , at
58).
The presence and use of hazardous chemicals and materials such as propane, TC bed lubricant and various types of wood/wood dust, including white oak, red oak, maple, hickory, cherry, and walnut, in the workplace on January 11, 2018 required Respondent to provide employees with training on hazardous chemicals and materials in the workplace. (Tr. 241). [redacted]
testified that he had not received any training on propane while working at Timberline. (Tr. 486). Respondent’s failure to : a)
develop, implement and/or maintain a written hazardous communication program in the workplace,
b)
have safety data sheets for each hazardous chemical in use at the workplace ,
and
c)
train employees on the hazardous chemicals in their work area , exposed all ten to fourteen of Respondent’s employees to violative conditions that could lead to death or serious physical harm as discussed further below.

(Tr. 235-4 1 ; Ex. 25, at 1, Ex. 26, at 1-2, Ex. 27, at 1-2 ) .

T HD
was issued citations for “Serious” violation of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Items 2a, 2b and 2c). ( Jt. Pre-Hrg. Stmt. ,
§ 4(g) & (h); Tr. 354; Ex. 3 3 , at
3-4, Ex. 38 , at
57 ) .

The citations issued to T HD
in Inspection No. 331026 for violation of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) noted that propane and lubricant were among the hazardous chemicals at the workplace.

(Ex. 33 , at
3-4).
On August 30, 2012, Thomas Vavra signed abatement certification on behalf of T HD
certifying that the violations of 29 C .F.R. § 1910.1200(e)(1),
§1910.1200(g)(1)
and § 1910.1200(h)(1)
contained in the citation s
issued for Inspection No. 331026 had been corrected/abated on April 23, 2012. 34

( Jt. Pre-Hrg.
Stmt. ,
§ 4(i) , Tr. 353; Ex. 34, Ex. 38 , at
51 - 52 ) .

On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that the violations of 29 C.F.R. § 1910.1200(e)(1), §1910.1200(g)(1) and § 1910.1200(h)(1) contained in the citation s
issued in Inspection No. 331026 had been abated.

(Tr. 356; Ex. 30).
In November 2012,
Thomas Vavra signed a Stipulated Settlement on behalf of T HD
affirming the citations for violation of 29 C.F.R.
§ 1910.1200(e)(1),
§ 1910.1200(g)(1)
and § 1910.1200(h)(1)
in Inspection No. 331026
and certifying that the violations had been abated . 35

( Jt. Pre-Hrg. Stmt. ,
§ 4(j) ; Tr. 342 - 43; Ex. 35 ) .
The representations made in the abatement certification, letter to OSHA and Stipulated Settlement signed by Thomas Vavra relating to abatement of the citations for violations of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) in Inspection No. 331026 were , at best,
inaccurate .

(Tr. 233-37, 240-41, 351 -52 , 355 -56 , 401; Exs. 30 - 32, Ex. 38 , at
52 -59 ) . The citations issued to T HD
on June 12, 2012 in Inspection No. 331026 became a final order of the
Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(k) ) .

The violation of 29 C.F.R. § 1910.1200(e)(1) contained in the
2012
citation for Inspection No. 331026 was substantially
similar to
the violation of 29 C.F.R. § 1910.1200(e)(1) as cited in Citation 1, Item 2a in
Docket No. 18-1211 .

The violation of 29 C.F.R. § 1910.1200(g)(1)
contained in the
2012
citation for Inspection No. 331026 was substantially
similar to
the violation of 29 C.F.R. § 1910.1200(g)(1) as cited in Citation 1, Item 2b in
Docket No. 18-1211 .

The violation of 29 C.F.R. § 1910.1200(h)(1) contained in the
2012
citation for Inspection No. 331026 was substantially
similar to
the violation of 29 C.F.R. § 1910.1200(h)(1) as cited in Citation 1, Item 2c in
Docket No. 18-121 1.

E. Docket No. 18-1212

1. Citation 1, Item 1

Citation 1, Item 1 in Docket No. 18-1212 has been withdrawn by the Secretary. A Stipulation of Withdrawal signed by both parties was received
and approved
by the Court at the commencement of the
trial . (Tr. 8-9).

2 . Citation 1, Item 2

On January
19, 2018, a door designated as an
emergency
exit
at the South end of the

m ill
that led outdoors at Respondent’s workplace was locked by a deadbolt. 36

(Tr. 52 -54,
120-23, 178 ,
244 ,
373; Exs. 6 - 7, 19 , at
4 , ¶ 4a ). CSHO Calderon tried but was unable to open the door. (Tr. 52). IH Maloney testified that the “door was dead bolted shut. You had – you had to unlatch the deadbolt and push the bar.” (Tr. 243-44). A photograph of the exit door taken by CSHO Calderon is at Exhibit 7. (Tr. 52-53 ; Ex. 7 ).
P hotograph s
of the lock taken by CSHO Calderon
are
at
Exhibit 6 and
Exhibit 7, at A.

(Tr. 53-54 , 120 ; Exs. 6-7).
In order to
unlock the exit door, one had to lift
up
the deadbolt, slide it and then push the bar on the door.

(Tr. 179, 243, 372 ;
Exs. 6 - 7).

Thomas Vavra was aware the exit door was locked
with a deadbolt .

(Tr. 55 , 372 ) .
He

told CSHO
Calderon
that the door was kept locked to keep the cold from getting into the building, which was not heated. The locked exit door exposed
all ten to
fourteen of
Respondent’s employees to serious physical injuries resulting from delay in evacuating the workplace in the event of a fire
hazard .

(Tr. 54 - 55, 123 - 2 5 , 177-78 ).

3. Citation 1, Item 3

On January 19, 2018, the exit sign above a designated exit door
at the south end of the
m ill
was not illuminated.

(Tr.
11-12,
58 - 59, 126; Ex. 7).
The unlit exit sign was in plain view.

(Tr. 59; Ex. 7).
The unlit exit sign exposed
all
ten to
fourteen of Respondent’s employees to serious physical injuries resulting from
an
inability to see the exit door to evacuate the workplace in the event of a fire.

(Tr. 59).

4. Citation 1, Item 4

Respondent provided portable fire extinguishers in the workplace for employees to use to fight fires.

(Tr. 376, 460, 482; Ex. 38 , at
31).
Respondent’s employees were expected to use the fire extinguishers at the workplace in the event of a fire.

(Tr. 63, 340, 460, 482; Ex. 38 , at
33-34 ) .
Respondent did not train employees on the use of portable fire extinguishers and/or the hazards involved with incipient stage
firefighting .

(Tr. 61 - 62,
130 - 31, 160, 339 - 40, 377, 425, 459-60, 482; Ex. 18 , at
2,
¶¶ 6, 9, Ex. 38 , at
31, 34).
Respondent’s failure to train employees on the use of portable fire extinguishers and/or the hazards involved with incipient stage fire-fighting exposed
all
ten to fourteen of its
employees to serious physical injury ,
such as smoke inhalation
or burns ,
in the event of a fire at the workplace.
(Tr. 63).

5. Citation 1, Item 5
   a) Whirlwind up-cut saw and b) Northtech up-cut saw

On January 11, 2018, the points of operation on both
the
Whirlwind and Northtech
up - cut saws
(also upcut saw)
were completely unguarded. (Tr. 65, 71, 74).

On January 11, 2018,
Thomas Vavra told CSHO Calderon that guards get in the way of production.

(Tr. 65-66, 71-72). On January 11, 2018, CSHO Calderon notified Thomas Vavra that both
up-cut
saws needed to be guarded. (Tr. 66).

On January 19, 2018, the Whirlwind and Northtech up - cut saws
used by employees
were not adequately guarded to protect Respondent’s employees from point of operation hazards.

(Tr.
12,
64-67, 70 -74 , 132 - 3 5 ; Ex. 9).
The blades of both up - cut saws are engaged by foot pedals which move the blades upward to cut wood.

(Tr. 65, 378 - 79).
On
January 19, 2018
the guards installed for the points of operation on both up - cut saws did not fully guard employees from point of operation hazards.

The guards still allowed for contact at the point of operation. (Tr. 66-67 ,
72; Ex. 9 , at 1, “A”, at 3, “B” ).

The photograph s
at
pages 1 and 3,
Exhibit 9, taken by CSHO Calderon on January 19, 2018, show a partial guard at
page 1,
“A” , and page 3, “B”,
on the Whirlwind up-cut saw. (Tr. 66-68; Ex. 9, at
1, “ A ” , at 3, “B” ). On January 19, 2018, CSHO Calderon observed
Mr.
[redacted]
using the Whirlwind
upcut
saw with his hands about an inch from the point of operation. 37

(Tr. 67 -7 0 ; Ex. 9, at 3, “A” ) .
Employees ’
hands had to be so close to the point of operation because the employees “were required to push the wood to keep it in place on the saw.” (Tr. 70).

CSHO Calderon
measured the
one - inch
distance from
the
employee’s hands to the point of operation on the Northtech upcut saw.

(Tr. 7 2 ).
Mr.
[redacted]
also told CSHO Calderon that the distance of the exposed additional space at the Northtech upcut saw was approximately four inches. (Tr. 72-73).

On both up - cut saws, approximately four inches w ere
exposed between the bottom of the guards and the points of operation.

(Tr. 70 -73 ; Ex. 9 ,
at
1, “A”, at
3 , “B” ).

On both up - cut saws, employees’ hands were approximately one inch from the point of operation when the saws were in use.

(Tr. 70 -72 ; Ex. 9 , at
3).
The position of the guards on the up - cut saws were in plain view.

(Ex. 9).
Respondent’s failure to adequately guard the points of operation on the Whirlwind and Northtech up - cut saws exposed
approximately
four employees , including Mr.
[redacted] ,
to serious physical injury such as amputation.

(Tr. 73 - 75, 137).

6. Citation 1, Item 6

On January 19, 2018, the pressure of two compressed air guns used by Respondent’s employees every workday to clean wood dust off machinery was not reduced to less than 30 pounds per square inch (p . s . i . ).

(Tr.
12,
76- 81 , 429; Ex. 10).
The two compressed air guns were hooked up to a compressed air tank that had pressure at 90 p . s . i.

(Tr. 161). Using an air pressure gauge, CSHO Calderon measured t he pressure of the compressed air gun
at the Maureen Johnson wood saw
at 40 p . s . i .
and
at the Cantek planer 38
cleaner at
50 p . s . i . ,
respectively .

(Tr. 77 - 78 ) .
CSHO Calderon observed two employees using the compressed air guns during her onsite inspection in January 2018.

(Tr. 77, 80).
The photograph at Exhibit 10, at 1, taken by CSHO Calderon in January 2018, shows
an employee at the Cantek planer
using an air gun without a reducer to clean off the wood dust from the equipment. (Tr.
78 -83; Ex. 10, at 1). Thomas Vavra was aware that the two compressed air guns did not have reducers.

He told CSHO Cald e ron that reducers “were no longer being used.” (Tr. 80-81, 429).
Respondent’s failure to reduce the air pressure on two compressed air guns used for cleaning purposes to below 30 p . s . i .
exposed
approximately
four employees , including Messrs.
[redacted]
and
[redacted] ,
to serious physical
injury such as cuts to the skin, lacerations and/or embolisms.

(Tr. 79 -83 ).

7. Citation 1, Item 7

On January 11
and
19, 2018, the circuit breaker box powering various machinery at Respondent’s workplace was missing a dead front enclosure. 39

(Tr.
13,
83 - 85, 142; Ex. 12).

The photograph at Exhibit 12, at 1, taken by CSHO Calderon on either January 11 or January 19, 2018, shows that the dead front was missing on the bottom half of the breaker box. (Tr. 85, 162; Ex. 12, at 1, “C”). Employees used the circuit breaker box to switch breakers for various machines every day.

(Tr. 86-87, 91).
The door to the circuit breaker box was left open and the exposed electrical parts were in plain view.

Exposure
allegedly
occurred when the door was left open or when the door was opened whereupon in either instance employees were exposed to live parts because the dead front was missing.

(Tr. 87 ,
91, 142, 161 - 62; Ex. 12).
CSCO Calderon
also
testified that an employee could
allegedly
still be exposed to electrical shock
or fire caused
by the uncovered conduits and circuits inside even where the circuit breaker door was closed. (Tr. 143-44). Respondent’s failure to enclose all live electrical parts in the circuit breaker box
allegedly
exposed approximately two employees , including Messrs.
[redacted]
and
[redacted] ,
to serious physical injury such as electrical shock when they switched breakers.

(Tr. 86 -87;
144).

8. Citation 1, Item 8

a. Citation 1, Item 8a

On January 11 and 19, 2018, the circuit breaker box powering various machinery , including the p l aner, chop saw, and end matcher,
at Respondent’s workplace had live openings missing filler plates.

(Tr.
13,
89 -90 ; Ex. 12).
Employees used the circuit breaker box to switch breakers for various machinery every day.

(Tr. 86 - 87, 91).
The photograph at exhibit 12, page 1, taken by
CSHO Calderon on either January 11 or January 19, 2018, shows the missing filler plates at “A”, “B”, and “C”. (Tr. 89; Ex. 12). The photograph at exhibit 12, page 2, taken by CSHO Calderon on either January 11
or January 19, 2018, shows the missing filler plate at “A”. (Tr. 89; Ex. 12, at 2, “A”). The door to the circuit breaker box was left open and the exposed electrical parts were in plain view.

(Tr. 87, 91, 142, 161-62; Ex. 12).
Respondent’s failure to close all live openings in the circuit breaker box exposed approximately two employees , including Messrs.
[redacted]
and
[redacted] ,
to serious physical injury such as electrical shock.

(Tr. 9 1 ).

b. Citation 1, Item 8b

On January 11 and 19, 2018, a conduit box connected to the chipper was missing a cover. (Tr.
13,
91- 92; Ex. 11).
The conduit box connected to the chipper contained electrical conduit and wood chips . The conduit box
was only covered with cardboard and duct tape.

(Tr. 92; Ex. 11 ) .
The conduit box was in plain view.

(Tr. 93-94; Ex. 11) . The photograph at exhibit 1 1 , page 1, taken by CSHO Calderon on either January 11 or January 19, 2018, shows the
conduit box covered with a “piece of cardboard and tape.” (Tr. 92 ; Ex. 1 1, at 1 ). The photograph at exhibit 1 1 , page 2, taken by CSHO Calderon on either January 11
or January 19, 2018, shows th at the inside of the conduit box contains conduit and wood chips. (Tr. 92 ; Ex. 1 1 , at 2).
Respondent’s failure to properly cover the conduit box connected to the chipper exposed
all
ten to
fourteen employees to a fire hazard.

(Tr. 93).

9. Citation 2, Items 1a and 1b
   (Alleging W illful , R epeat ,
   and Serious
   violations in the alternative )

a.
Citation 2, Item
1 a:

On January 11 and 19, 2018,
Respondent failed to establish a program consisting of energy control (lockout/tagout) procedures, employee training and periodic inspections for employees who performed servicing and/or maintenance on machines such as the planer,
rip saw/ ripper,
moulder and upcut saws. 40

CSHO Calderon testified that an energy control program is required when
an employee could potentially be exposed to equipment reenergizing while they are performing maintenance , service
or fixing the machine. (Tr.
13,
95 - 96, 157-58 ,
163 -65 ,
258,
331, 337, 386, 451 - 52; Ex. 18 , at 1-2,
¶¶ 3-5, Ex. 38 , at
34, 37-38).

Respondent’s employees regularly performed servicing and/or maintenance on the planer,
rip saw/ ripper, moulder and upcut saws such as replacing blades and knives and applying lubricant.

(Tr. 96, 102 - 03, 108 -12 , 334, 403 ,
433 ,
44 7 -49, 458-59 , 468; Ex.
38 , at
39-40). Respondent failed to train any employees who performed servicing and/or maintenance on the planer,
rip saw/ ripper, moulder and upcut saws on energy control procedures (lockout/tagout). 41

(Tr. 98 -10 4, 434; Ex. 18 , at 1-2,
¶¶ 5, 9, Ex. 38 , at
36).
Respondent failed to do periodic inspections of energy control procedures at the workplace for employees who performed servicing and/or maintenance on machines such as the planer,
rip saw/ ripper, moulder and upcut saws. 42

(Tr. 104 ;
Ex. 18 , at 1,
¶¶ 3-4).
Although there
were
unopened
locks and tags present at the workplace, none were used to lockout and/or tagout energy
prior to OSHA’s 2018 inspection . (Tr. 97-98, 334; Ex. 16 , at
2-3, Ex. 38 , at
42 - 43).
Respondent’s failure to establish a program consisting of energy control (lockout/tagout) procedures, employee training and periodic inspections exposed
e mployees , including Messrs.
[redacted] ,
[redacted] , and
[redacted] ,
to serious physical injuries such as amputation in the event a machine unexpectedly restarted while the employees were performing servicing and/or maintenance.

(Tr. 10 2 -05).

Respondent failed to develop, document and/or utilize specific procedures for the control of potentially hazardous energy for employees who performed servicing and/or maintenance on machines such as the planer,
rip saw/ ripper, moulder and upcut saws.

(Tr. 95 -98 , 102 -14 , 157 - 58, 163 - 6 7,
171-72, 331, 334,
337, 386,
434; Exs. 9, 13-16, Ex. 18 , at 1-2,
¶¶ 3-5, Ex. 38 , at
34, 38 -40) . The planer,
rip saw/ ripper,
moulder and upcut saws on which
R espondent’s employees performed servicing and/or maintenance
were all powered by both electricity and air.

(Tr. 105 -13 , 165 - 66, 460, 481 - 82; Ex. 15 , at
2).
Respondent’s failure to develop, document and/or utilize specific procedures for the control of potentially hazardous energy exposed
employees, including Messrs.
[redacted] ,
[redacted] , and
[redacted] ,
to serious physical injury such as amputation in the event a machine unexpectedly restarted while the employees were performing servicing and/or maintenance. 43

(Tr. 114 - 15).

T HD
was issued a citation for “Serious” violation of 29 C.F.R. § 1910.147(c)(1) on June 12, 2012 in Inspection No. 330566 (Citation 1, Item 3)
as a result of a April 10, 2012 OSHA
inspection at 99 Harris Street, Fulton, New York 13069, the same inspection site as in this case . 44

( Jt. Pre-Hrg. Stmt. ,
§ 4(e) ; Tr. 328 - 29; Ex. 29 , at
1,
3 ) .
On August 30, 2012, Thomas Vavra signed
an
abatement certification on behalf of T HD
certifying that the violation
of 29 C.F.R. § 1910.147(c)(1) contained in the citation issued for Inspection No. 330566 had been corrected/abated
o n April
24,
2012.

( Jt. Pre-Hrg. Stmt. ,
§ 4(g); Tr.
264-65,
330; Ex. 31 ) . 45
On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that
the
violation of 29 C.F.R. § 1910.147 (c)(1) contained in the citation
issued in Inspection No. 330566
had been
abated. 46

(Tr. 356; Ex. 30).
In November 2012, Thomas
A.
Vavra signed a Stipulated Settlement on behalf of T HD
affirming the citation for violation of 29 C.F.R. § 1910.147(c)(1) in Inspection No. 330566 and certifying that the violation had been
abated. 47

( Jt. Pre-Hrg. Stmt. ,
§ 4(h); Tr.
263-64,
329 - 30, 336, 357; Ex. 32 ) .
The representations made in the abatement certification, letter to OSHA and Stipulated Settlement signed by Thomas Vavra relating to abatement of the citation for violation of 29 C.F.R. § 1910.147(c)(1) in Inspection No. 330566
were , at best,
not
accurate .

( Tr. 337; Exs. 30 - 32, 38 , at
40-41 ) .
The citation issued to T HD for
violation of 29 C.F.R. § 1910.147(c)(1) on June 12, 2012 in Inspection No. 330566 became a final order of the C ommission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(i) ) .
The violation of 29 C.F.R.
§ 1910.147(c)(1 ) contained in the citation for
Inspection No. 330566
was substantially
similar to
the violation of 29 C.F.R. § 1910. 147(c) (1) as cited in Citation
2 , Item
1a
in
Docket No. 18-1212 .

b. Citation 2,
Item 1b

Thomas Vavra told CSHO Calderon that Respondent
had not developed specific procedures to control potentially hazardous energy for it s Cantek planer, Maureen ripsaw, the
[ LMC 630] moulder, and the Whirlwind and Northtech upcut saws. 48

(Tr.
105-06 ).

CSHO Calderon testified that lockout/tagout procedures were required for the moulder because mou l ders have
multiple
energy
sources , such as e lectrical
and air
(also pneumatic) . 49

(Tr. 107 , 258-59 , 460 ).

She said she never observed a lock on the lockout point of a mou l der. (Tr. 107-08; Ex. 13, at 3). T wo
photographs at exhibit 13, taken by CSHO Calderon on either January 11 or 18, 2018, show the moulder. (Tr. 106-07; Ex. 13, at 1-2).
CSHO Calderon testified that Mr.
[redacted]
told her that employees performed service or maintenance on mou l ders,
including
changing knives, on an as needed basis. (Tr. 108). At trial, Mr.
[redacted]
testified that he switched knives on the moulder “probably once or maybe twice a week.” Knives , also referred to as blades,
are switched to provide “a better outcome on the flooring, the
finish , and everything.” (Tr. 448 , 459 ).

The photograph at exhibit 14 , taken by CSHO Calderon on either January 11 or 18, 2018, shows the Cantek planer. (Tr. 109; Ex. 14, at 1). CSHO Calderon said she never observed a lock on the lockout point of the Cantek planer. (Tr. 110; Ex. 14, at 3-4). CSHO Calderon testified that lockout/tagout procedures were required for the Ca n tek planer
because
it
h ad
multi p le energ y
s our ces, such as e lectrical
and air.

(Tr. 1 1 0 , 258-59 , 481-82 ).
CSHO Calderon testified that Mr.
[redacted]
told her that employees performed service or maintenance on
the Cantek planer ,
including
changing knives ,
bimonthly . (Tr. 1 1 0 -11 ).

The photograph at exhibit 1 5 , taken by CSHO Calderon on either January 11 or 18, 2018, shows the
Whirlwind Upcut saw . (Tr. 1 11 ; Ex. 1 5 , at 1).

CSHO Calderon testified that
specific

procedures
for energy control
were required for the
Whirlwind
Upcut
saw
because it had multiple energy sources, such as electrical and air. (Tr. 110 , 258-59 ). CSHO Calderon testified that Mr.
[redacted]
told her that employees performed service or maintenance on the
Whirlwind Upcut saw,
including
changing knives. (Tr. 11 1 -1 2 ).

CSHO Calderon testified that specific procedures for energy control were required for the
Maureen-Johnson Ripsaw
because it had multiple energy sources, such as electrical and air. (Tr.
11 2-13 ). CSHO Calderon testified that
[redacted]
told her that employees performed service or maintenance on the
Maureen-Johnson Ripsaw ,
including
changing knives
six times per week . 50

(Tr. 11 2 -1 3 ).

CSHO Calderon testified that lockout/tagout procedures were required for the Northtech saw because it had multiple energy sources, such as electrical and air. (Tr. 110). CSHO Calderon testified that Mr.
[redacted]
told her that employees performed service or maintenance on the Northtech saw,
including
changing knives, bimonthly. (Tr. 113-14).

Respondent’s failure to develop, document and/or utilize specific procedures for the control of potentially hazardous energy on the Cantek planer, Maureen-Johnson Ripsaw, LMC 630 moulder, and Whirlwind and Northtech upcut saws, exposed employees, including Messrs.
[redacted] ,
[redacted] , and
[redacted] , to serious physical injury such as amputation in the event a machine unexpectedly restarted while the employees were performing servicing and/or maintenance, including changing knives and blades. (Tr. 114-15).

The violation of 29 C.F.R. § 1910.147(c) (1 ) contained in the
2012
citation for Inspection No. 330566 was substantially
similar to
the violation of 29 C.F.R. § 1910.147(c) (4)(i ) as cited in Citation
2 , Item
1b
in
Docket No. 18-1212 .

10.
Citation 2, Item 2
(Alleging Willful, Repeat, and Serious violations in the alternative)

Respondent failed to train and evaluate all employees who operated
PITs
to ensure that they were competent to operate them safely. 51

(Tr. 115 - 1 8 , 159, 337-3 9 , 461, 476, 484-85; Ex s .
17,
18 , at
2,
¶¶ 7, 9, Ex. 38 , at
43 - 44).
At the time of the
2018
OSHA inspection, two forklifts were routinely operated by
Mr. Vavra and
employees at the workplace.

Two employees use a forklift to bring lumber to equipment such as the moulder . Mr.
[redacted]
testified that a forklift is used about twelve times each eight-hour day to bring lumber to the moulder.
A third forklift is a vailable as a
backup. (Tr. 116, 337 - 38, 395 -96 , 45 4-5 5, 461 ,
476, 484-85; Ex. 17, Ex. 38 ,
at
43-44).
Thomas Vavra told CSHO Calderon that Respondent had not trained or evaluated for competency PIT operators. (Tr. 115-16). On January 11, 2018, she observed
Mr.
[redacted]
unsafely operating a PIT as he was not wearing a seatbelt. She also observed
Messrs.
[redacted]
and
Anthony
Vavra
operating
a forklift. She said th at a
forklift was being operated the entire time she was at Respondent’s worksite. (Tr. 158-60). Mr.
[redacted]
told CSHO that
Respondent
“did not train the operators or test them.”
52 (Tr. 117). [redacted]
told the CSHO that he had not had any training. (Tr. 159). Respondent’s failure to ensure that all
PIT
operators were competent exposed
all
ten to
fourteen employees to serious physical injuries from the hazard of being struck by a forklift or other materials.

(Tr. 118).

THD
was issued a “Serious” citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) on June 12, 2012 in Inspection No. 330566 (Citation 1, It em 4).

( Jt. Pre-Hrg. Stmt. ,
§ 4(f) ; Tr. 328 - 29; Ex. 29 , at
4 ) .
On August 30, 2012, Thomas Vavra signed
an
abatement certification on behalf of T HD c ertifying that the violation of 29 C.F.R. § 1910.178(l)(1)(i) contained in the citation issued for Inspection No. 330566 had been corre cted/abated on April 23, 2012. 53

( Jt. Pre-Hrg. Stmt. ,
§
4(g); Tr. 330; Ex. 31 ) .
On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that the violation of 29 C.F.R. § 1910.178(l)(1)(i) contained in the citation issued in Inspection No. 330566 had been abated.

(Tr. 356; Ex. 30).
In November 2012, Thomas Vavra signed a Stipulated Settlement on behalf of T HD
affirming the citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) in Inspection No. 330566 and certifying that the violation had been abated.

( Jt. Pre-Hrg. Stmt. ,
§ 4(h); Tr. 339; Ex. 32).
The representations made in the abatement certification, letter to OSHA and Stipulated Settlement signed by Thomas Vavra relating to abatement of the citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) in Inspection No. 330566 were , at best,
not accurate .

(Tr. 339; Exs. 30 - 32, Ex. 38 , at
45).
The citation issued to T HD
for violation of 29 C.F.R. § 1910.178(l)(1)(i) on June 12, 2012 in Inspection No. 330566 became a final order of the Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(i) ) .
The violation of 29 C.F.R.
§ 1910.178(l)(1)(i ) contained in the
2012
citation for Inspection No. 330566 was substantially similar to the violation of 29 C.F.R. § 1910. 178(l)(1)(i ) as cited in Citation
2 , Item
2
in
Docket No. 18-1212 .

IV. THE SECRETARY’S
BURDEN OF PROOF

To demonstrate
a
prima facie
violation of a standard under the
OSH
Act, the Secretary must
show
that :

(1) the cited standard applies; (2) the requirements of the standard were not
met;
(3) employees were exposed to, or had acces s to, the violative condition; and
(4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative
condition. N Y
State Elec. & Gas Corp. v. Sec ’ y of Labor , 88 F.3d 98, 105 (2d Cir. 1996);
Astra Pharm .
Prod s . , Inc. ,
9 BNA OSHC 2126 , 2129
( No. 78-6247, 1981 ),
aff’d in relevant part , 681 F.2d 69 (1 st
Cir. 1982) ;
see also Public Util .
Maint .
v. Sec ’ y of Labor , 417
F . App ’ x . 58, 62 (2d Cir. 2011) .

It is sufficient for the Secretary to prove access to the zone of dange r, rather than actual exposure
to the immediate risk of injury or death. Donovan v. Adams Steel Erection, Inc. , 766 F.2d 804, 811-812 (3 d Cir. 1985). The Secretary must show only that it was “reasonably certain that some employee was or would be exposed to the danger” of the cited hazard, not that an employee was
actually injured
or that an accident occurred. Mineral Indus. & Heavy Constr. Group , 639 F.2d 1289, 1294 (5 th
Cir. 1981).

V. DISCUSSION

A. ALL THE WILLFUL CITATION ITEMS
ARE
AFFIRMED.

1.
T he Willful Standard Under the OSH Act .

A willful violation under section 17(a) of the OSH Act is “an act done voluntarily with either an intentional disregard of, or plain indifference to the Act’s requirements.” A.E. Staley M fg.
Co. v. Sec ’y
of Labor , 295 F.3d 1341, 1345 (D.C. Ci r. 2002)
(citing
Kaspar Wire Works, Inc. v. Sec ’ y of Labor , 268 F.3d 1123, 1127 (D.C. Cir. 2001)). Such a violation is distinguished from other types of violations by the employer’s heightened awareness of the violative nature of its conduct or the conditions at its workplace.

A Schonbek & Co. Inc. v. Donovan , 646 F.2d 799, 800 (2d Cir. 1981). The Second Circuit, in which this case arises, adopted the Commission’s and OSHA’s definition of a willful violation as one “done either with intentional disregard of, or plain indifference to, the statute.” See Am .
Recycling & M fg.
Co., Inc. v. Sec ’ y of Labor , 676
F.App ’ x . 65, 69 (2d Cir. 2017)
(unpublished) ;
A Schonbek & Co. Inc. , 646 F.2d
at 800.

Intentional or conscious disregard
must be
established by evidence
“that an employer
knew of an applicable standard or provision prohibiting the conduct or condition, and consciously disregarded the standard.” Caterpillar, Inc. , No. 87-0922, 1993 WL 44416 ,
at
*23
(O.S.H.R.C., Feb. 5, 1993). “P lain indifference ”
may be
inferred
where “if the employer had known of the standard or provision, the employer would not have cared that the conduct or conditions violated it.” Id .

In addition to knowledge or
plain indifference, other factors can be considered in assessing the appropriateness of a willful violation.

These factors include the employer’s general attitude towards safety and good faith efforts made to comply.

See e.g., Asbestos Textile Co., Inc. , No. 79-3831, 1984 WL 34962 ,
at 1 (O . S.H.R.C., Oct. 31, 1984);
Mobile Oil Corp . , No. 79–4802, 1983 WL 23910 , at 1
(O.S.H.R.C., Oct. 28, 1983). “An employer that consciously disregards an OSHA standard acts willfully even though it believes in good faith that the violation is not hazardous to employees.”

Sec ’y
v.
Capital Citv Excavating Co., Inc. , 712 F.2d 1008, 1010 (6 th
Cir. 1983) .

A n act may be willful if the employer shows “indifference to the rules; he need not be consciously aware that the conduct is forbidden at the time he performs it, but his state of mind is such that, if he were informed of the rule, he would not care.”

AJP Const r ., Inc. v. Sec ’y
of Labor , 357 F.3d 70, 74 (D.C. Cir. 2004);
Brock v. Morello Bros. Const r . ,
Inc . 809 F.2d 161, 164 (1st Cir. 1987);
see also Capeway Roofing Sys .,
Inc. v. Chao , 391 F.3d 56, 60- 6 1 (1st Cir. 2004).
(Sec’y Post Hrg. Br., at 29-30).

2.
Respondent’s Conduct was Willful.

T he record establishes that Respondent,
generally
through Thomas Vavra’s knowledge and actions, exhibited both intentional disregard and plain indifference to the requirements
for
all
of
the willful ly
cited standards , as addressed in detail below .

Mr. Vavra, co-owner and sole manager of Respondent, had a heightened awareness of the
hazardous conditions presented by all the willful violations in this case because his
nearly identical predecessor
company
located at the
same
workplace , T HD , Inc., was cited
in July 2012
for violation of all the same standards
where willful violations are
now
alleged .

(Tr. 328-29, 341, 354; Ex. 29 , at
3-4, Ex. 33 , at
2-4 ,
Ex. 38 , at
50, 57 ; Jt. Pre-Hrg. Stmt., §§ 4(j)-(n) ).

T HD
also manufactured hardwood flooring ,
operated out of the same address , used the same
equipment
and employed many of the same employees
as Respondent . (Tr.
326 -27 , 364, 438, 464, 494 ;
Ex. 38 , at
14 ,
16 , 19). The prior
2012
citations addressed the same hazardous conditions as all the willful items in
Docket Nos. 18-1211 and 18-1212 . “[A]
willful
violation can be found where an employer has been previously cited for violations of the standards in question, is aware of the requirements of the standards, and is on notice that violative conditions exist .” J.A. Jones Constr .
Co. , No. 87-2059, 1993 WL 61950 ,
at *9 (O.S.H.R.C., Feb. 19, 1993).

In addition to his heightened awareness of the requirements of the standards as a result of receiving those 2012 citations,
Mr. Vavra
also
signed settlement agreements
with the Secretary
affirming all the
prior
2012
citations, yet never took
meaningful
steps to comply with those standards.

(Exs. 32, 35). Mr. Vavra fail ed
to come into compliance with the cited standards .

H e
also
affirmatively
misled
OSHA in multiple documents by claiming that
THD
had abated the
2012
violations , when it had not .
On August 30, 2012,
Mr.
Vavra signed
a letter and
abatement certification s
on behalf of T HD c ertifying that
all
the
cited
violation s
had been corrected/abated
i n April 2012.

( Tr.
330, 341 - 4 3 , 353,
356; Ex s . 30 - 31,
34).

I n
November 2012,
Mr.
Vavra signed
two
Stipulated Settlement
Agreements
on behalf of T HD
affirming
all the prior
citation s
and
again certifying
that
they had all been
abated.

(Tr.
329 - 30, 336,
339,
341 ,
357 ; Ex s .
32,
35). As set forth below, all Mr. Vavra’s representations regarding the supposed abatement of the
2012
citation items issued to T HD
in 2012 were , at best,
inaccurate .

Mr. Vavra’s misrepresentations to OSHA
in 2012
are evidence that support a finding of willful conduct in 2018 .

See Hardaway Co. , No. 89-64, 1990 WL 118151 ,
at 7 (O.S.H.R.C. A.L.J. ,
Feb. 5,
1990);
Kilby & Gannon Constr .
Serv . , LLC , No. 10-0755, 2012 WL 10829293 ,
at 18 (O.S.H.R.C.A.L.J., May 14, 2012).

Not only had Mr. Vavra not abated the
2012
citations at the time he claimed to have done so, he still had not come into compliance with any of the standards cited in
Docket Nos. 18-1211 and 18-1212
at the time of OSHA’s inspections in January 2018, nearly six years later. “ An employer who knows an employee is exposed to a hazard and fails to correct or eliminate the hazardous exposure commits a willful violation if the employer knows of the legal duty to act, for an employer ’ s failure to act in the face of a known duty demonstrates the knowing disregard that characterizes willfulness. ”

Branham Sign Co. , No. 98-752, 2000 WL 675530 ,
at *2 (O.S.H.R.C., May 15, 2000). Supervisor
[redacted]
exemplified Respondent’s indifference to workplace safety when he testified that they do not use lockout/tagout procedures
on the moulder
because “you wouldn’t make any money.” 54

(Tr. 453 ) . For
all of
the willful items
in this case,
Mr. Vavra
had heightened awareness of the violations, knew
Respondent
was not in comp liance with the cited standards
and
misled
OSHA about
THD
having abated the conditions. T he willful items
are
affirmed as cited. (Sec’y Post Hrg. Br., at 30-32).

3. T he Willful Citation Items
   Are
   Also Repeat Violations.

All the items cited as willful were also repeat violations under section 17(a) of the OSH
Act ,
29 U.S.C. § 666(a). A violation is repeated if, at the time of the time of the alleged repeated violation, there was a Commission final order against the same employer for substantially similar violations.

Potlach Corp. , No.16183, 1979 WL 61360 ,
at *3 (O.S.H.R.C. Jan. 22, 1979).

As discussed above, on June 12, 2012, Respondent’s predecessor T HD
was issued safety and health citations
for violations of the same OSHA
standards
that were cited in the willful citations in
Docket Nos. 18-1211 and 18-1212 . (Exs.
1, 20,
29, 33). Mr. Vavra signed Stipulated Settlement Agreements with the Secretary affirming
all of
the
2012
citations in November 2012.

(Exs. 32, 35). All of
the citations issued to T HD
in June 2012
b ecame a final order of the Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(k) ( Docket No.
18-1211),
Jt. Pre-Hrg. Stmt. ,
§ 4(i) ( Docket No.
18-1212) ) .

The citations issued to T HD
in 2012 are a proper basis for a repeat classification of citations in this case. In
Sharon & Walter Constr . , Inc. , No. 00-1402 , 2010 WL 4792625
( O.S.H.R.C.,
Nov .
18, 2010), the Commission
found that citations against a predecessor entity may be used against the successor if there is substantial continuity between them.
Id. ,
at

• 11. The Commission adopted the “substantial continuity” test used by the N ational
      L abor
      R elations
      B oard (NLRB) which looks to the following factors :

(1) whether the businesses of both employers is essentially the same; (2) whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and (3) whether the new entity has the same production process, produces the same products and basically has the same body of customers.

Id. ,
at
*9 ; see
Fall
River Dyeing & Finishing Corp. v. N LRB , 482 U.S. 27, 43 (1987).

Th e Commission viewed
the
substantial continuity test formulated by the NLRB as focusing on three categories of factors. The f irst
category examines the
nature of the business
and is important
“because continuity in the type of business, products/services
offered
and customers served indicates that there has been no substantive change in the enterprise. Such continuity also typically indicates that the nature of the activities associated with the business and the inherent safety and health considerations are likewise unchanged . ”

Sharon & Walter Constr . , Inc. , 2010 WL 4792625 ,
at *10.
The s econd
category examines the
jobs and working conditions
which
“is especially relevant under the Act because of its close correlation with particular safety and health hazards.”

Id. The third category
looks to the
personnel
who control decisions regarding safety and health and is
important
“because the decisions of such personnel relate directly to the extent to which the emp loyer complies with the statute ’ s requirements.”

Id. ,
at *10.

Here, all three criteria of the Commission’s substantial continuity test
weigh strongly in favor of successor liability . The first and second criteria, nature of the business and personnel, are both met because Respondent is engaged in the same exact same type of business activity
(hardwood flooring
manufacturing) as T HD, operating
out of the same location ,
employing the same employees ,
and using the
identical
machinery and equipment. (Tr. 32 3 - 2 8 , 364, 438, 464, 494; Exs. 29 - 30, 33, Ex. 38 , at
14, 16, 19). Mr. Vavra testified that other than a change in the identities of his co-owners, there was no difference
at all
between T HD
and
Respondent.

(Tr. 328; Ex. 38 , at
19-20 ) . The third criteria,
continuity of decision-making
personnel, is
similarly
met because Mr. Vavra solely ran both the day-to day business of T HD
in 2012 as well as the day-to–day business of Respondent.

(Tr. 324 - 26 ;
Ex. 38 , at
9-1 5 ). Mr.
Vavra was responsible for Respondent’s safety programs, training Respondent’s employees on safety and ensuring Respondent’s compliance with OSHA standards.

(Tr. 325-26; Ex. 38 , at
13-14 ) .

“ S ubstantial continuity”
has been shown . As such ,
the citations issued to T HD
in 2012 can be used as a basis
for repeat classifications in
Docket Nos. 18-1211 and 18-1212 . (Sec’y Post Hrg. Br., at 32-34).

B .
DOCKET NUMBER 18-1211

1.    Citation 1, Item 1:

Willful
Fail ure
to Establish a Hearing
Conservation

Program

a. Respondent Violated 29 C.F.R. § 1910.95(c)(1).

29 C.F.R. § 1910.95(c)(1 )
requires
that an employer shall administer a continuing, effective hearing conservation program whenever employee noise exposures equal or exceed an 8-hour
TWA
sound level
of 85
dBA .

(Tr. 274 , 301 ).
The 8-hour
TWA
of 85 d BA
is referred to in the standard as the “action level.”

29 C.F.R. § 1910.95(c)(2). When employees are exposed to noise above the action level, the employer is required to administer a hearing conservation program that includes monitoring of sound levels in the workplace, notifying employees of sound levels at or above the action level, providing baseline and annual audiograms/hearing tests to employees at no cost, providing hearing protection to employees, ensuring hearing protection is worn by all employees, training employees on the hazards of noise exposure and the proper use of hearing protection and recordkeeping of the results of all employee audiograms/hearing tests.

(Tr. 184). See
29 C.F.R. § 1910.95(c) – (n);
Reich v. Trinity Indus .
Inc. , 16 F.3d 1149, 1150 (11 th
Cir. 1994).

The cited standard applies
because
n oise sampling performed by IH Maloney on January 11, 2018 established that six of Respondent’s employees were exposed to continuous noise above
the action level of 85 dBA.

(Tr. 205 , 301 ; Ex. 20 , at
6-7, Ex. 22 , at
2-3, Ex. 23). As detailed in the
above Findings
of Facts,
the Court finds that
IH
Maloney’s sampling results and calculations are credible and
reliable
and she testified in detail how she conducted noise sampling and calculated noise exposure
on January 11, 2018 at the workplace . The Court finds that the allegation set forth in Citation 1, Item 1a) pertains to Mr.
[redacted] , 1b) pertains to Mr.
[redacted] , 1c) pertains to
Mr.
[redacted] , 1d) pertains to
[redacted] , 1e) pertains to
[redacted] , and 1f) pertains to Mr.
[redacted] . (Exs. 20, 22-23). Respondent failed to comply with § 1910.95(c)(1) because it is undisputed that no hearing conservation program was administered at the workplace as of January 11, 2018. Mr.
Vavra admitted that Respondent had no hearing conservation program.

(Tr. 181-82,
277,
343-44; Ex. 28 , at 1,
¶¶ 3-4, Ex. 38 , at
45-46, 52 ).
In its Post Trial Brief, Respondent admitted “Timberline’s program did not fully comply with the statute” and acknowledged that “Timberline violated the regulation by failing to have mandatory testing procedures in place.” (Resp’t Post Trial Br., at 18).

Mr. Vavra had knowledge of the condition because he was put on notice on or about June 12, 2012 that as a result of an OSHA inspection in April 2012 employees working for T HD a t the same workplace performing the same work using the same machines as at the time of the inspection in
Docket No. 18-1211
were exposed to noise levels above the eight-hour
TWA
sound level of 85 dBA.

(Tr. 327 - 28, 341, 346-48; Ex. 33 , at
2, Ex. 38 , at
19 - 20, 50) .
T he noisy conditions at the workplace were readily apparent. CSHO Calderon testified that on the first day of her onsite inspection, January 9, 2018, it was so loud in the workplace that she could barely have a conversation with someone standing close to her. (Tr. 49). As a result of the noisy conditions, she made a referral to her Area Office for a health inspection to be initiated. (Tr. 49). Despite the noisy conditions, and its knowledge of the 2012 sampling results and citation,
Respondent never provided or ensured that employees had baseline and/or annual audiograms/hearing tests.

(Tr. 182, 185, 227,
341 - 51,
420, 461, 477-78 ,
485 ,
499 - 502; Ex. 23 , at
1, 3, 5, 7, 9, Ex. 28 , at 1,
¶ 4, Ex. 33 , at
2,
Ex. 34,
Ex. 38 , at
49, 53-54). Mr. Vavra admitted that he did not make hearing tests mandatory. 55

Mr. Vavra testified that it was the employee’s
responsibility
to ask for a hearing test. (Tr. 184, 369-70 ,
398-99, 420, 456; Ex. 38 , at
48).

Respondent failed to do any monitoring of noise levels
at the workplace and
failed to train employees on the hazards of exposure to noise.

(Tr. 182-83, 344 - 50 ; Ex. 28 , at 2,
¶¶ 9-10, Ex. 38 ,
at
49 -53 ). Although Respondent did provide employees with earplugs, it failed to ensure that all employees always wore some type of hearing protection.

On January 11, 2018, CSHO saw one employee , Laborer Mr.
[redacted] ,
working by a machine not wearing ear plugs. Instead, he was
wearing ear buds listening to music. 56

On January 19, 2018, she saw three employees not wearing ear plugs. IH Maloney testified that there were three employees who told her that they never wore ear plugs. 57

(Tr. 183, 250 -51 , 341, 344 -4 6, 349; Ex. 21 , at
2,
Ex. 23, at 11,
Ex. 28 , at 2,
¶ 9, Ex. 33 , at
2, Ex. 38 , at
48 -49 , 53). Respondent also failed to train employees on the importance of using hearing protection and how to properly wear it.

(Tr. 183-8 4 , 250-51 , 344 ). Failure to train the employees and to ensure the use of hearing protection was apparent because during the
2018
OSHA inspection not all employees were wearing hearing protection and one employee , Mr.
[redacted] ,
was only wearing ear buds to listen to music. (Tr. 183, 250- 51 ; Ex. 21 ,
at
2). Mr. Vavra testified that he left it up to the employees whether to use hearing protection and admitted that some listen ed to music while working.

(Tr. 344; Ex. 38 ,
at 48 -49 ).

Respondent failed to produce any
persuasive
evidence to contradict or discredit the noise sampling or calculations performed by IH Maloney
at the workplace . At his deposition, Mr. Vavra testified that he subjectively did not “find it’s all that loud in there” but then acknowledged that OSHA found it to be otherwise.

(Ex. 38 , at
53 ) . He testified at trial that he
never took any action to assess employees’ exposure to noise prior to the
OSHA
inspection in January 2018.

(Tr. 346). At the
trial , Respondent attempted to argue that the noise sampling calculations were unreliable
because the employees were not sampled for a full eight-hour
period . However, both IH Maloney and
AD
Prebish 58
testified that the sampling and the calculation contained in Appendix A to the standard
considers
any time not sampled.

See
Appendix A to § 1910.95, section
I( 2). (Tr. 246-47, 272, 294-97). AD Prebish explained that the calculations are based on an eight-hour
TWA
and any time not sampled is considered zero
or no
exposure .

(Tr. 272, 294-9 6 ). See Swiftex Inc. , No. 90-1393, 1992 WL 226438 ,
at *4
(O.S.H. R. C.A.L.J., Aug. 31, 1992)
(noting that “not sampling for a full eight hours is actually to the employer’s advantage because any unsampled periods assume zero exposure.”). The January 11, 2018 noise sampling results were also consistent with the results found in the 2012 inspection of T HD .

(Ex. 23, Ex. 33 , at
2).

Respondent’s failure to administer a continuing, effective hearing conservation program exposed at least six employees to hearing loss.

(Tr. 231-32, 27 7-7 8). IH Maloney and AD Prebish both testified that the requirements of § 1910.95(c) including employee training, baseline and annual audiograms/hearing tests and proper use of hearing protection are all integral to minimize employees’ hearing loss.

(Tr. 184, 248 - 51, 279-98, 299 - 300).

See
Reich v.
Trinity Indus . , Inc. , 16 F.3d
at
1 1 5 1
(An employer subject to the hearing conservation program must perform baseline audiograms of employees against which subsequent audiograms may be compared) ;
Miniature Nut and Screw Corp. , No. 93-2535, 1996 WL 88763 ,
a t *2 (O . S.H.R.C., Feb. 23, 1996)
( An employer’s failure to conduct audiometric testing may allow hearing loss to
go undetected, thereby preventing the employee and his employer from becoming aware of the situation and taking appropriate remedial measures .) .

(Sec’y Post Hrg. Br., at 34-38).

It its Post-Trial Brief, Respondent notes that the
TWA
d BA
level for the six noise sampled employees was between 87-92, “only barely above the 85db level where a hearing conservation program is required.” It also notes that
all of
its employees were offered ear plugs as hearing protection devices. Consequently, Respondent argues “its violation in failing to provide [audiogram] testing and education (training) is really only a paperwork violation.” (Resp’t Post-Trial Br., at 11 ; Sec’y Reply Br., at 4 ).

The Court does not view Respondent’s failure to comply with the cited standard as “really only a paperwork violation.” Respondent’s action as recounted above constitute s
a clear violation of the cited standard warranting meaningful penalties.

b. Citation
1 ,
Item
1
Was Properly Classified as Willful.

Citation 1, Item 1 was properly classified as willful. 59 As noted in
section
VA2
supra , Mr. Vavra had a heightened awareness of the requirements of § 1910.95(c)(1) because of the prior citation issued to T HD .

( Jt. Pre-Hrg. Stmt. ,
§ 4(e) ;
Tr. 341;
Ex. 33 , at
2 ) .
See
N. Atl. Fish Co. , No. 98-0848 ,
2001 WL 1263331, at *15 (O.S.H.R.C.A.L.J., July 9, 2001)
(consolidated)
(f inding willful violation of 29 C.F.R. § 1910.95(c)(1) where employer previously
warned
of excessive noise levels).
The noise conditions at the workplace had not materially changed from 2012 to 2018. As a result of th e 2012
citation, Mr. Vavra knew that employees were exposed to noise levels above the eight-hour
TWA
sound level of 85 d BA . (Tr.
301,
341, 346 -48 ; Ex. 33 , at
2, Ex. 38 , at
50) .

In the abatement certification he signed and submitted to OSHA in August 2012, Mr. Vavra certified that
corrective
actions were taken to abate the hearing conservation violation . 60
The record shows that all of Mr. Vavra’s
representations
and certifications to OSHA in 2012 that
the citation for violation of 29 C.F.R. § 1910.95(c)(1)
had been abated
were , at best,
not accurate . 61
(Tr. 343- 47 , 350; Exs. 30, 3 4 - 35 , Ex.
38 , at
52-53). At trial, Mr. Vavra admitted that other than buying earplugs, he failed to take any of the other abatement measures he attested to on the abatement certification including training,
monitoring
and hearing tests. 62
(Tr. 348-50). M r. Vavra testified that
a s of December 11, 2019, none of Respondent’s employees had received audiograms/hearing tests. 63

(Tr. 347, 350 -51 ).

In addition, IH Maloney testified that when she asked Mr. Vavra if he had provided the employees with audiograms, his response was that he was not going to pay for employees to get
a hearing test if they were not working.

(Tr. 184). The company’s limited “ safety program ”
contained in its Employee Handbook
is severely lacking in any substantive information .

(Ex. 8 ,
at
7-8). Respondent
did not
provide employees with any safety or health training.
Mr. Vavra’s
lax attitude towards safety and health,
inaccurate misrepresentations
to OSHA
in 2012 , and lack of
good faith
efforts to
comply
with the hearing conservation standard establish the willfulness of Citation 1, Item 1.

(Sec’y Post Hrg. Br., at 38-40).

c.
In the Alternative, Citation 1, Item 1 was a lso a
Repeat Violation.

T he Court
further
find s
that Citation 1, Item 1 was a repeat violation of 29 C.F.R. § 1910.95(c). (Tr. 9-10 ; Ex. 20, at 6-7 ). On June 12, 2012, Respondent’s predecessor
at the workplace , T HD ,
was issued a citation for
violation of
29 C.F.R. § 1910.95(c)(1) in Inspection No. 331026 (Citation 1, Item 1a).

(Ex. 33 , at
2). The prior citation found that two of Mr. Vavra’s employees operating the same or similar woodworking machinery as in the instant case were exposed to noise levels above the action level in the same
workplace.

(Ex. 20 , at
6-7,
Ex. 33 , at
2). In November 2012, Mr.
Vavra signed a Stipulated Settlement on behalf of T HD
affirming the citation for violation of 29 C.F.R. § 1910.95(c) . 64

(Ex. 35). The citation issued to T HD
for violation of 29 C.F.R. § 1910.95(c)(1)
on June 12, 2012 in Inspection No. 331026 became a final order of the Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(k) ( Docket No.
18-1211) ) . Because Respondent violated the same standard and employees were exposed to the same hazard of hearing loss, Citation 1, Item 1 was also a repeat violation of § 1910.95(c)(1).

d. In the alternative,
Citation 1, Item 1 Was Also a Serious Violation.

In addition to being willful
and repeat,
Citation 1, Item 1 constituted a serious violation. Section 17(k) of the Act provides:

...a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists...in such a place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.      

(Tr. 9-10). 29 U.S.C. § 666(k). See Sec ’y
of Labor v. Trinity Indus . , Inc. , 504 F.3d 397, 401 (3d Cir. 2007);
Mosser Constr . , Inc.,
No. 08-0631, 2010 WL 711322 ,
at *2 (O.S.H.R.C., Feb. 23, 2010). Serious physical harm
is the type of injury that requires hospitalization and/or medical treatment and could keep
an
employee out of work for a few days or more.

The determination as to what is considered serious physical harm is made on a case-by-case basis.

In making such determination the court look s
to the nature of the hazard against which the standard was intended to protect.

Anaconda Aluminum Co. ,
No. 13 102 , 1981 WL 18874 ,
at *20 (O.S.H.R.C. ,
Mar. 31,
1981).

Here, at least six employees were exposed to hearing loss from prolonged exposure to noise.

(Tr. 231 - 32). The
C ommission has characterized hearing loss as serious physical harm within the meaning of section 17(k) of the
OSH
Act.

Miniature Nut and Screw Corp. , 1996 WL 88763 ,
at 2
( “ failure to make audiom e t r ic tests available to employees
can
result in serious physical harm. ” )
(emphasis in original) ;
Sun Shipbuilding & Drydock Co.,
No. 268 , 1974 WL 4588 ,
at 2
(O.S.H.R.C., Aug. 28, 1974)
(hearing impairment constitutes a serious injury where exposure occurs over a normal working lifetime) .

(Sec’y Post Hrg. Br., at 40-41).

e. The
Secretary’s Proposed
Penalty
f or Citation 1, Item 1 is Appropriate.

Pursuant to
s ection 17(j) of the
OSH
Act, in assessing penalties the Commission must give due consideration to the following factors:

(1) the size of the employer’s business; (2) gravity of the violation; (3) good faith; and (4) prior history of violations.

29 U.S.C. § 666(j);
L
& L
Painting ,
Co. , No. 05-0055 , 2012 WL 3552925 ,
at 18
( O.S.H.R.C. ,
June 28,
2012);
Mosser Constr . Inc. ,
2010 WL 711322 ,
at 4 ;
Valdak Corp . , No. 93-0239 , 1995 WL 139505 ,
at *4

( O.S.H.R.C. ,
Mar. 29,
1995) ,
aff'd ,
73 F.3d 1466 (8th Cir. 1996). Gravity of a violation is the primary factor in the penalty assessment. The gravity of a
particular violation
depends upon such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury could result.

Mosser Constr . ,
2010 WL 711322 ,
at 4 ;
Valdak Corp .,
1995 WL 139505 ,
at 4.

As discussed above, Respondent’s violation of § 1910.95(c)(1) was willful ,
repeat
and serious . T he gravity of a violation is determined by its severity and its probability. AD Prebish testified that the gravity-based penalty proposed for Citation 1, Item 1 was $129,336 because the gravity of the violation was rated “High (Severity)” and “Greater (Probability).”
65

(Tr. 278-79). All six exposed employees gave IH Maloney information regarding their work activity and how long they did it every day (usually 8 hours) and she recorded that information on the Noise Survey Reports
at Box 12.c.

(Tr. 217 - 18, 226 - 27; Ex. 23 , at
1, 3, 5, 7, 9, 11). The six employees had worked for Mr. Vavra at the workplace for periods ranging from five to eighteen years.

(Tr. 217; Ex. 23,
at
1, 3, 5, 7, 9, 11 ,
Box 12.b.).

T hey were exposed to noisy conditions without audiograms or other hearing conservation precautions for long periods of time. Given the risk of hearing loss and the willful and repeat nature of the violation,
OSHA used appropriate judgment in determining the gravity of the violation.

(Tr.
231-32,
278).

AD Prebish testified that the gravity-based penalty was reduced by 60% for size based on of the number of employees Respondent had at the time of the inspection.

(Tr. 278). According
to OSHA’s Field Operations Manual (FOM) (Directive CPL 02-00-163), Chapter 6, VI.B.,
at
6-14, the maximum size reduction allowed for serious willful citations for employers with 11-20 employees was 60%. 66

(Tr. 266-67). At the time of
OSHA’s 2018
inspection, Respondent
had about
ten
to fourteen
employees .

(Tr. 51,
231, 235,
364 ) . AD Prebish further testified that n o reduction s were given for good faith in any of the citation items issued in this case because Respondent was issued several willful citations and its safety program was severely lacking.

(Tr. 267, 278; Ex. 8 ,
at
7-8).

See
OSHA FOM Chapter 6, III.B.3.a.,
at
6-8. AD Prebish
also
testified that Respondent received no penalty adjustment for history because it had not been inspected by OSHA in the five years prior to the issuance of the citations in this case.

(Tr. 267, 278 ; Sec’y Reply Br., at 3 ).

See
OSHA FOM Chapter 6, III.B.2.c.,
at
6-8.

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 279). The Court has considered
all of
the required factors and affirms
Citation 1 , Item
1, as a willful, repeat and serious violation and
the
proposed
adjusted gravity-based penalty of $ 51,73 4 .

1. Citation 1, Items 2a, 2b, and 2c: Willful Fail ure
   to Comply with the Requirements for Hazardous Chemicals.

a. Respondent Violated 29 C.F.R. § 1910.1200(e)(1).

29 C.F.R. § 1910.1200(e)(1) requires that employers develop,
implement
and maintain a written hazard communication program which describes how the criteria specified in § 1910.1200(f), (g) and (h) will be met.

The cited standard applies because employees used and were exposed to
hazardous chemicals
and materials
at the
workplace ,
including
flammable materials , carcinogens,
and ear, nose and throat irritants from
propane,
lubricant
and wood dust .

(Tr. 233-34, 237 - 39, 402 - 03, 456-57, 478; Exs. 24-27, Ex. 38 , at
55). The safety data sheet for
the TC Bed Lube 67
used at the workplace as lubricant for machinery indicates that it “ [ m ] ay be
fatal
if swallowed or enters airways” and is a combustible liquid.

(Ex s . 24 - 25 , at
1). The safety data sheet for wood dust indicates that it is a carcinogen and
may “cause nasopharyngeal
cancer
and/or cancer of the nasal cavities and paranasal sinuses by inhalation . ”

(Ex. 26 , at
1). The safety data sheet for the Air g as
USA, LLC
propane used at the workplace indicates that it is extremely flammable and can cause frostbite.

(Ex. 27 ,
at
1).

Respondent
failed to meet the requirements of § 1910.1200(e)(1) because it had no
written hazard communication program
for
the workplace on January 11, 2018 . (Tr. 233 - 3 5 , 351 ,
401; Ex. 8 , at
7-8, Ex. 20 , at
8,
Ex. 28,
at 2,
¶¶ 6-8,
Ex. 38 , at
54-55, 58 ) .
In its Post Trial Brief, Respondent admitted that “Timberline’s actions violated the regulation.” (Resp’t Post Trial Br., at 19, ¶ 56). All ten to fourteen e mployees were exposed to
the violative condition
that
could lead to death or serious physical harm if : a)
the lubricant was swallowed or caught fire ,
b)
wood dust were inhaled and caused cancer, or
c)
propane exploded or caused frostbite. These employees were also exposed to moderate irritation of ears, nose,
throat
and respiratory tract.

The Court finds that the evidence shows that there is a substantial probability that death or serious physical harm could result
from exposure to the violative condition . (Tr. 235, 239-41; Exs. 25 - 27). (Sec’y Post Hrg. Br., at 43-44).

b. Respondent Violated 29 C.F.R. § 1910.1200(g)(1).

29 C.F.R. § 1910.1200(g)(1) requires that employers have a safety data sheet in the workplace for every hazardous chemical which they use. The cited standard applies because employees used and were exposed to
hazardous chemicals
and materials
at the
workplace
including
propane,
lubricant
and wood/w ood dust.

(Tr. 233-34, 237-39,
402 - 03, 456 - 57, 478;
Exs. 24-27, Ex. 38 , at
55). Respondent failed to comply with § 1910.1200(g)(1).

Respondent did not have any safety data sheets at the workplace
on January 11, 2018 .

(Tr. 236-37, 351-352, 356; Ex. 2 8, at 2,
¶ 8, Ex. 38 , at
56 - 58).

As discussed above, all ten to fourteen employees were exposed to the violative condition that could lead to death or serious physical harm if: a) the lubricant was swallowed or caught fire, b) wood dust were inhaled and caused cancer, or c) propane exploded or caused frostbite. These employees were also exposed to moderate irritation of ears, nose,
throat
and respiratory tract. The Court finds that the evidence shows that there is a substantial probability that death or serious physical harm could result from exposure to the violative condition. (Tr. 235, 239-41; Exs. 25-27). ( Sec’y Post Hrg. Br., at 44).

c. Respondent Violated 29 C.F.R. § 1910.1200(h)(1).

29 C.F.R. § 1910.1200(h)(1) requires that employers provide training to employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard is introduced to their work area. The cited standard applies because employees used and were exposed to
hazardous chemicals
and materials
at the
workplace
including
propane,
lubricant
and wood/w ood dust.

(Tr. 233-34, 237 - 39, 402 - 03, 456 - 57, 478; Exs. 24-27, Ex. 38 , at
55).

Respondent
failed to comply with § 1910.1200(h)(1) because as of January 11, 2018, it had not
provided information or training to employees on the
propane, lubricant and wood/wood dust
in their work area. 68

(Tr.
233-34, 237 -41 , 352 ,
355-56 , 402 - 03, 456-57, 478 ;
Exs. 24-27,
Ex. 2 8, at
2,

¶ ¶ 7, 10, Ex. 38 , at
55,
58).
As discussed above, all ten to fourteen employees were exposed to the violative condition that could lead to death or serious physical harm if: a) the lubricant was swallowed or caught fire, b) wood dust were inhaled and caused cancer, or c) propane exploded or caused frostbite. These
employees were also exposed to moderate irritation of ears, nose,
throat
and respiratory tract. The Court finds that the evidence shows that there is a substantial probability that death or serious physical harm could result from exposure to the violative condition. (Tr. 235, 239-41 ; Exs. 25-27 ) . (Sec’y Post Hrg. Br., at 44-45).

d. Citation 1, Items 2a, 2b and 2c Were Properly Classified as

Willful .

As discussed in detail
supra
in section
VA2 ,
Citation 1, Items 2a, 2b and 2c were properly classified as willful. 69
Mr. Vavra
exhibited both intentional disregard and plain indifference to the requirements of the standards cited in Items 2a–2c. Further,
Mr. Vavra
made no good faith efforts to comply. Mr. Vavra had a heightened awareness of the hazardous conditions presented by hazardous chemicals in the workplace because Respo n dent’s predecessor
at the workplace , T HD , was cited for serious violation s
of § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) in July 2012.

(Tr. 354; Ex. 33 , at
3-4, Ex. 38 , at
57). See N. Atl. Fish Co. , 2001 WL 1263331, at *16 (finding willful violation s
of 29 C.F.R. § 1910.1200 (e) (1) ,
1910.1200(g)(8) and 1910.1200(h)
where employer previously
cited for similar violations a few years before and certified it had corrected the violations. ).
As in the current case, the prior
2012
citation listed propane and lubricant as hazardous chemicals at the workplace. 70

(Ex. 20 ,
at
8-10, Ex. 33 , at
3-4). As a result of th e
2012
citation, Mr. Vavra was
put on notice that employees were exposed to
hazardous chemicals and that he was required to develop and implement a written hazard communication program, maintain safety data sheets at the workplace and train employees on hazardous chemicals in their work area.

In
August 2012,
Mr.
Vavra
certified that the following actions had been taken to abate the prior cited violations:

As to § 1910.1200(e)(1) and § 1910.1200(h)(1):

A hazard communication program has been developed and implemented. Employees have been trained on program and applicable MSDS sheets.

As to § 1910.1200(g)(1):

A MSDS binder has been supplied to employees and will be maintained and monitored as per our hazard communication program.

(Ex. 34). All the representations made by Mr. Vavra to OSHA in 2012 relating to abatement of the citation for violations of § 1910.1200(e)(1),
§ 1910.1200(g)(1)
and § 1910.1200(h)(1)
in Inspection No. 331026
were also , at best,
inaccurate .

(Tr. 233 -41 , 351 -56 , 401; Exs. 30 -32 , Ex. 38 , at
52 -60 ). When asked at his deposition why he signed a document falsely certifying that a written hazard communication program had been developed and implemented, Mr. Vavra’s response was, “I probably should not have signed it or I should have done the program for the two items we were cited for.”

He also said that he did not “have a good answer” to explain why Respondent did not have a written hazardous chemical program on January 11, 2018. (Ex. 38 , at
59 - 60). In relation to Citation 1, Item 2b, Mr. Vavra
testified
t hat
in
2012
there was a
MSDS
binder
kept in a file cabinet
in the mill
that c ontain ed some
safety data sheets
for propane, PB blaster, and slick bed lubricant , but
the binder
had been lost at some unknown time
and was unavailable on January 11, 2018 .

(Tr. 3 51- 52 , 356, 371;
Ex. 38 , at
60 ) . Mr. Vavra’s
disregard towards safety and health,
inaccurate
statements to OSHA, and lack of
good faith
efforts to
comply
establish the willfulness of Citation 1, Items 2a, 2b and 2c.

e. In the Alternative ,
Citation 1, Items 2a, 2b and 2c
Are

Repeat Violations.

T he Court
also finds
that
Citation 1, Items 2a, 2b and 2c , are
alternatively
repeat violations.

(Tr. 9-10). On June 12, 2012,
T HD w as issued
serious
citations
for violations of the exact same three standards
( 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) )
in Inspection No. 331026 (Citation 1, Items 2a, 2b and 2c).

( Tr. 354; Ex.
33 ,
at
3-4, Ex. 38 , at
57 ) . Both the current
2018
and the 2012 citations address the same hazardous
condition ;
i.e.
exposure to propane and lubricant.

(Ex.
20, at 8-10, Ex.
33 , at
3-4). In November 2012,
Mr.
Vavra signed a Stipulated Settlement affirming
all
of
the
prior hazard communication
citation
items .

( Tr. 354 ;
Ex. 35 ) . The citations issued to T HD
in
Inspection No. 331026 became a final order of the Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(k) ) .

f.
In the Alternative ,
Citation 1, Items 2a, 2b and 2c
Are

Other Than Serious Violations.

The Court also finds that
Citation 1, Items 2a, 2b and 2c , are
alternatively other-than-serious violations
under section 17(c) of the OSH Act. (Tr. 9-12). See
29 U.S.C. § 666(c). An
other -than-serious violation “is one in which there is a direct and
immediate
relationship between the violative condition and occupational safety and health, but not of such relationship that a resultant injury or illness is death or serious physical harms.” Gen. Motors Corp. Electro-Motive Div. ,
No. 82-630, 1991
WL 41251, at *5 (O.S.H.R.C., Feb. 15, 1991)
( c onsolidated)
(Nonserious records access violation not properly classified as de minimis) . The Court finds that there is , at least,
a direct and
immediate
relationship between the violative conditions alleged in citation 1, Items 2a, 2b, and 2c ,
and occupational safety and health.
See Ryder Truck Lines, Inc. v. Brennan,
497 F.2d 230, 233 (5 th
Cir. 1974) (“Avoidance of minor injuries, as well as major ones,
was intended to be within the purview of this liberal Act.”).

g. The Penalty Proposed for Citation 1, Items 2a, 2b and 2c is Appropriate.

As discussed above, the violations contained in Citation 1, Items 2a, 2b and 2c were willful ,
repeat , and
other-than-serious . AD Prebish testified that the gravity-based penalty proposed for Citation 1, Items 2a, 2b and 2c ,
was $9,239 because the gravity of the violation was assigned a “Minimal (Severity)” and “Lesser (Probability).” (Tr. 286 ) . Respondent’s failure to :
a)
develop, implement and/or maintain a written hazardous communication program in the workplace,
b)
have safety data sheets for each hazardous chemical in use at the workplace ,
and
c)
train employees on the hazardous chemicals in their work area ,
exposed a ll
ten
to fourteen
of Respondent’s employees to
violative conditions that could lead to death or serious physical harm. (Tr. 235, 239 - 4 1 ; Exs. 25-27 ). AD Prebish testified that no reductions were given for size because $9,239 was the minimum penalty allowed for a willful violation.

(Tr. 286).

See
29 C.F.R. 1903.15(d)(1)
( 2018 ) .

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 286). The Court has considered
all of
the required factors and affirms
Citation 1 , Item s 2a, 2b and 2c, as a willful, repeat and
other-than- serious violation and
the
proposed
adjusted gravity-based penalty of $ 9,239 .

A. THE VIOLATIONS ALLEGED IN CITATION 1 IN DOCKET NUMBER 18-1212
AND THEIR PROPOSED PENALTIES ARE AFFIRMED ;
EXCEPT AS TO
WITHDRAWN ITEM 1 AND
ITEM 7 WHICH IS VACATED .

1. Citation 1, Item
   1
   has been withdrawn.

2 .    Citation 1, Item 2 :

Locked Exit Door

a .    Respondent Violated 29 C.F.R. § 1910.36(d)(1).

29
C.F.R. § 1910.36(d)(1) requires that
exit doors be unlocked and that
employees
must
be able to open an exit route door from the inside at all times
without keys, tools, or special knowledge. The cited standard applies because , a door
at the workplace
designated as an
emergency
exit
with an exit sign
that led outdoors
was locked
with
a deadbolt
lock . 71

(Tr. 52- 54 , 120 -23 , 178, 244, 37 2-7 3 ;
Ex. 1 , at
8,
Exs. 6 - 7). Respondent failed to comply with the requirements of § 1910.36(d)(1) because o n
January
19, 2018
the exit door in the workplace was locked and
all ten to
fourteen employees were exposed to the hazard of a delay in evacuating the building in the event of a fire.

(Tr. 54-55). In order to unlock the deadbolt
on
the exit door
from inside the
m ill ,
an employee
would have
to lift
up
the deadbolt
and
then
slide it
to the side. 72

Then, the employee would have to
push the bar
on the door to open it in order to evacuate the building . 73

Notwithstanding Thomas Vavra’s testimony to the contrary, the Court finds that this process required at least some
prohibited
“special knowledge” to open the door. (Tr.
121-25,
179, 243,
313,
372 -74 , 445 ; Exs. 6 - 7 ; Sec’y Reply Br., at 7 ). The cited standard permits devices such as a panic bar that locks only from the
outside, but
does not permit an exit door to be locked from the inside as this one was. See
29
C.F.R. § 1910.36(d)(1) .

Thomas Vavra
admitted to CSHO Calderon that he
was aware the exit door was locked.

(Tr. 55). He testified that the new building owner installed a new door
there
because he did not want to allow Respondent’s employees
“ access
in to the other side of the building
anymore” because he wanted to separate the Mill from the bakery there. Mr. Vavra
said,
“we just can’t have people going back and forth.” He said that the door had to be secured at night
“so we put a deadbolt there so that we
could – could still lock it up.” Mr. Vavra testified that the door was “unlocked in the morning , meaning the deadbolt is released ”
and not locked again until the end of the day. He further stated that on the days OSHA inspectors visited the
m ill a
“ couple different employees ”
requested that the door be locked so that they
[unidentified employees]
would not be “bothered by the inspectors while they were on break
[on the other side of the door] . And
so
they
[unidentified employees]
asked if they
[unidentified employees]
could keep that locked so that they
[unidentified employees]
didn’t have access to them
[OSHA inspectors] .” He
also
claimed the door was locked to keep the cold from getting inside as there was no heat in the building. The Court finds that the door was locked on January 19, 2018 at the time of CSHO
Calderon’s
inspection and special knowledge was required to open it then as CSHO Calderon was not able to open the door herself.
74

(Tr.
52,
55 , 372-74 , 445 ).

CSHO Calderon testified that both she and IH Maloney could not unlock the deadbolt without
[redacted]
first explaining how. (Tr. 122-24). IH Maloney unlocked the door on January 19, 2018 by lifting off the bolt and sliding it to the left and opened the door with a second motion. (Tr. 178-79; Ex. 6).

b .    Citation 1,
Item 2 Was Properly Classified as Serious and the Penalty Proposed is Appropriate.

Citation 1, Item 2 was properly classified as serious because employees were exposed to
serious physical injuries resulting from delay
in
evacuating the workplace in the event of a fire. 75

(Tr. 54 - 55, 123 - 25).
CSHO
Calderon
testified that the gravity-based penalty proposed for Citation
1 , Item
2
was $ 7,391
because the gravity of the violation was assigned a “ Medium
(Severity)” and “ Lesser
(Probability).” (Tr. 56 ). All
ten to f ourteen employees were exposed to the hazard.

(Tr. 55). According to OSHA’s FOM, Chapter 6, VI.B.4.b.,
at
6-10, the maximum size reduction allowed for serious citations for employers with 11-20 employees was 60%. (Tr.
51,
56 , 364 ). Complainant did not give any
reduction
for good faith
because Respondent was also issued willful citations in Docket No. 18-1212 ,
and because it lacked an adequate safety program .

(Tr. 56-57, 267; Ex. 8 , at
7-8 ).

See
OSHA FOM Chapter 6, III.B.3.a.,
at
6-8. Respondent received no adjustments for history
by the Secretary
because it had not been inspected by OSHA in the five years prior to the citations in this case.

(Tr. 57, 267 - 68). 76

See
OSHA FOM Chapter 6, III.B.2.c.,
at
6-8.

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 58). The Court has considered
all of
the required factors and affirms
Citation 1 , Item
2 as a serious violation and
the
proposed
adjusted gravity-based penalty of $ 2,956 .

3 .    Citation 1, Item 3 :

Unlit Exit Sign

a .    Responde nt Violated 29 C.F.R. § 1910.37(b)(6 ).

29 C.F.R. § 1910.37(b)(6) requires that each exit sign must be illuminated by a reliable light source and be distinctive in color. The cited standard applies
because
on January 19, 2018 an exit sign above a
designated exit route
door was completely unlit. 77

(Tr. 58 - 59, 126 , 424 ;
Ex. 1 , at
9,
Ex. 7). Respondent failed to comply with § 1910.37(b)(6) because CSHO Calderon observed that the sign was unlit on all four days she conducted her onsite inspection.

(Tr. 59).

In its
Post Trial
Brief,
Respondent admits “the exit sign is not illuminated at all times ”, but
claims that it did not violate 29 C.F.R. § 1910.37(b)(6) because the exit sign would illuminate
when an alarm
is deployed . (Resp’t Post Trial Br., at 13). This assertion is based on Mr. Vavra’s vague and uncorroborated testimony. When asked at the trial by Respondent’s counsel if the exit sign illuminated, Mr. Vavra
equivocally
replied, “I believe it does.”

(Tr. 374 -76 ). Respondent provided
insufficient
evidence
as to the
circumstances
that
cause d
the alarm to
activa te
or
account for a situation necessitating emergency egress when the alarm, for whatever reason, is not promptly activated. Mr. Vavra’s courtroom testimony is also undermined by
CSHO Calderon ’s
testi mony
that during her inspection Mr. Vavra told her that there were no alarms in the building.

(Tr. 126 - 27). Regardless, § 1910.37(b)(6) specifically requires that each exit sign be illuminated.

There are no exceptions from that requirement, related to alarms or otherwise.

See J.C. Watson Co ., No. 05-0175, 2006 WL 5692683 , at *20
(O.S.H.R.C.A.L.J., Oct. 10, 2006)
(consolidated)
( violation of 29 C.F.R. § 1910.37(b)(6) established where exit sign not illuminated) ,
aff’d ,
No. 05—0175,
2008
WL 2045818 (O.S.H.R.C., May 6, 2008) (consolidated) .

(Tr. 127 ; Sec’y Reply Br., at 7-8 ).

All of
the employees at the workplace were exposed to the hazard of a delay in evacuating the building in the event of a fire. Respondent had knowledge of the violative condition because t he unlit exit sign was in plain view
to Mr. Vavra, for weeks if not months .

(Tr. 59; Ex. 7).
The Court finds that t he sign above the exit door was unlit on all four days CSHO Calderon conducted her onsite inspection
proving that a
violat ion of
29 C.F.R. § 1910.37(b)(6)
occurred on January 19, 2018 as alleged in Citation 1, Item 3 . 78

(Tr. 59; Ex. 7).

b .    Citation 1,
Item 3 Was Properly Classified as Serious and the Penalty Proposed is Appropriate.

Citation 1, Item 3 was properly classified as serious because
all ten to
fourteen
employees
were exposed to
serious physical injuries resulting from
inability to see the exit door
in order
to evacuate the workplace
quickly
in the event of a fire.

(Tr. 59 -60 ).
CSHO
Calderon
testified that the gravity-based penalty proposed for Citation
1 , Item
3
was $ 5,543
because the gravity of the violation was assigned a “ Low
(Severity)” and “ Lesser
(Probability).” (Tr. 60 ). Complainant reduced th e gravity-based penalty by
6 0%
for size.

(Tr. 60). No reductions
were given for good faith
or history. (Tr. 60 -61 ).

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 61).

The Court has considered
all of
the required factors and affirms
Citation 1 , Item
3 as a serious violation and
the
proposed
adjusted gravity-based penalty of $ 2,217 .

4 .    Citation 1, Item 4 :

Failure to Train Employees on Use of Fire Extinguishers.

a .    Respondent Violated 29 C.F.R. § 1910.157(g)(1).

29 C.F.R. § 1910.157(g)(1) requires that where an employer has provided portable fire extinguishers for employee use in the workplace, the employer must also provide an educational program to familiarize employees with the general principles of fire extinguisher use and the hazards involved with incipient stage
firefighting . 79

(Ex. 1 , at
10). The cited standard applies here because Respondent provide d
various
portable fire extinguishers in the workplace
and
employees were
expected to use the m
in the event of a fire .

(Tr. 63, 340, 376 , 460 ; Ex. 38 , at
31 ,
33-34). Mr. Vavra testified at his deposition that he told employees to use the fire extinguishers in the event of a fire.

(Tr. 340; Ex. 38 , at
33). Both
Messrs.
[redacted]
and
[redacted]
testified that they were expected to use the fire extinguishers in the event of a fire.

(Tr.
460, 482 ). Respondent
did not comply with any of the requirements of the cited standard . On January 11, 2018, Respondent
failed to provide any
train ing to
employees
as required .

(Tr. 61 -6 2,
130-31,
160, 339-40, 377 ,
425,
446,
459 - 60, 482; Ex. 18 , at
2,
¶¶ 6, 9, Ex. 38 , at
31, 34).
Respondent asserted the fire extinguishers “are self-explanatory and easily operated.” (Ex. 19, at 5, ¶ 6a). All the employees at the workplace were exposed to
serious
physical injuries
such as smoke inhalation
or burns
in the event of a fir e at the workplace as a result of not being trained on the use of fire extinguishers and incipient stage
firefighting .

(Tr. 63 ) . Mr. Vavra admitted that Respondent had not given
the
training
on the use of fire extinguishers or firefighting . 80
He further admitted Respondent did not have any written training program.

(Tr. 61 - 62 ,
339,
377 ;
Ex. 38 , at
31, 34). In its Post Trial Brief, Respondent acknowledged that “it admittedly did not provide the training required, and therefore, violated the regulation.” (Resp’t Post Trial Br., at 14).

Neither M essrs .
Vavra
nor
[redacted]
knew what class of fire extinguishers were present at the workplace.

(Tr. 424 - 25, 439, 459 - 60). One
mill
employee , Amber Eckert,
told CSHO Calderon that she did not know how to operate the fire extinguishers. 81
(Tr.
62,
130 - 31, 160).

Respondent’s purported “safety manual” states
only that
“Employees should know where the fire extinguishers are located and understand how to use them.”

(Ex. 8 , at
8). The evidence shows that
Respondent did not impart that basic understanding to employees.

b .    Citation 1,
Item
4
Was Properly Classified as Serious and the Penalty Proposed is Appropriate.

Citation 1, Item 4 was properly classified as serious because
in the event of a fir e at the workplace, employees were exposed to
serious
physical injuries
such as smoke inhalation
or burns
as a result of not being trained on the use of fire extinguishers and incipient stage
firefighting . 82

(Tr. 63 ).
CSHO
Calderon
testified that the gravity-based penalty proposed for Citation
1 , Item
4
was $ 7,391
because the gravity of the violation was assigned a “ Medium
(Severity)” and “ Lesser
(Probability).” (Tr. 64 ). All
ten to
f ourteen employees were exposed to the hazard. T he gravity-based penalty was reduced by
6 0%
for size.

(Tr. 64). The Secretary
did not
give any
reductions
for good faith
or history. (Tr. 267 - 68 ) .

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 6 3-64 ). The Court has considered
all of
the required factors and affirms
Citation 1 , Item
4 as a serious violation and
the
proposed
adjusted gravity-based penalty of $ 2,956 .

5 .    Citation 1, Item 5 :

Lack of Machine Guarding
a) Whirlwind up-cut saw and b) Northtech up-cut saw

a .    Respondent Violated 29 C.F.R. § 1910.212(a)(1).

29 C .F.R. § 1910.212(a)(1)
requires that one or more methods of machine guarding shall be provided to protect the operator and other employees from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. The cited standard applies here because Respondent’s
employees used
the Whirlwind and Northtech upcut saws
to cut wood. Respondent failed to comply with
§ 1910.212(a)(1)
because on January 11, 2018, neither
upcut
saw
was
guarded
to protect
the employees
from point of operation hazards ; and on January 19, 2018,
each
upcut
saw was
guarded
inadequately .

(Tr. 64 -74 , 132 ; E x. 1 ,
at
11,
Ex. 9). 83

The Whirlwind and Northtech upcut saws are table saws that cut wood and remove defects
from the flooring that come out of the moulder .
(Tr. 65, 378 - 79). The blades of both saws are engaged by foot pedals
that force
the blades upward to cut
the
wood .

(Tr. 65, 379 , 496-97 ). The point of operation on both
upcut
saws was the open area where the saw blade popped up after
being engaged by a foot pedal.

( Tr. 69 ;
Ex. 9 , at
3 , “A” ).

Respondent failed to meet the requirements of
§ 1910.212(a)(1) . CSHO Calderon testified that when she observed employees using the Whirlwind
upcut
saw o n January 11, 2018,
it did not have a guard on it .

(Tr. 65 , 132). She observed that the Northtech saw also did not have a guard on it.

(Tr.
71 , 132 ).

When she brought the lack of guards to Mr. Vavra’s attention, he stated
that guards get in the way of production.

(Tr. 65-66, 71 -72 ).
CSHO Calderon
then informed him t hat both
upcut
saws needed to be guarded.

(Tr. 66).

When CSHO Calderon returned to the workplace o n January 19, 2018 , she observed that
guards
had been
installed
on both
upcut
saws, but that neither guard was installed properly to fully protect employees from
point of operation
hazards .

(Tr. 66-67, 72 , 134-35 ; Ex. 9).

That day, she observed
Mr.
[redacted]
using the Whirlwind
upcut
saw with his hands only about an inch from the point of operation.

(Tr. 67 - 70; Ex. 9 , at
1,
3).

She also learned through
measurement and
employee interviews that
the employees’
hands would be approximately one inch from the point of operation on the Northtech saw
while cutting wood .

(Tr.
72). She measured that
approximately four inches was exposed between the bottom of the guards and the points of operation
o n both
the upcut saws.

(Tr. 70 -73 ; Ex. 9 , at
1,
3 ).

CSHO Calderon testified that both saws could and should have been fully guarded with a larger,
commercially available
guard that would prevent employees’ hands from being close to the point of operation.

(Tr. 74-75, 136).

Mr. Vavra testified that he was aware that larger guards are available.

(Tr. 380). Mr.
Vavra
had knowledge of the hazardous condition on January 11, 2018 as he told the CSHO that guards get in the way of production.

(Tr. 65-66 ,
71-72). He was also aware of the inadequate
position ing
of the guards on the upcut saws
on January 19, 2018 as they
were in plain view.

(Ex. 9).

Respondent
asserted
in its
Post-Trial
Brief that using a larger guard on the upcut saws presented a greater hazard.

(Resp ’t
Post-Trial Br . , at 7). Respondent’s affirmative defense is without merit. Respondent failed to raise this affirmative defense in its Answer
and the Court
consider s it
waived.

See
29 C.F.R. § 2200.34(b)(3) and (4). Respondent has
also
not met its burden t o establish the
greater
hazard
defense. To show greater hazard, an employer must prove that:

(1) the hazards of compliance are greater than the hazards of noncompliance; (2) alternative means of protecting employees are unavailable; and (3) a variance is unavailable or inappropriate.

Modern Drop Forge Co. v. Sec ’ y of Labor , 683 F.2d 1105, 1116 (7th Cir. 1982 );
Spancrete N .E.
Inc. , No. 90-1726, 1994 WL 48832 ,
at *3 (O.S.H.R.C., Feb. 16, 1994).

Respondent
has not
met any of the three required factors to establish the greater hazard defense.

Mr. Vavra
testified that he used his own judgment and did not consult with anyone regarding guarding the
upcut
saws. (Tr. 426 - 27 ;
Ex. 19 , at
1 7-19) . CSHO Calderon credibly testified that both the points of operation on the
upcut
saws could have been fully guarded with larger,
commercially available
guards .

Respondent did not produce a dequate
evidence to show that alternative protection could not be provided. (Tr. 74-75, 136 ; Sec’y Reply Br., at 8 ). R espondent’s untimely claim of greater hazard
is
rejected.

b .    Citation 1, Item
5
a) and b)
Was Properly Classified as Serious and the Penalty
Proposed is Appropriate.

Citation 1, Item 5 was properly classified as serious because employees were exposed to
serious
physical injury
such as
amputation
due to
Respondent’s failure to adequately guard the
points of operation on the Whirlwind and Northtech upcut saws.

(Tr. 73 - 75, 137).
See
United Mobile Homes, Inc.,
No. 79-0898, 1980 WL 10561, at *2 (O.S.H.R.C.A.L.J., Dec. 18, 1980) (finding violations serious where saws unguarded). A pproximately f our employees , including Mr.
[redacted] ,
were exposed to the hazard on multiple days.

(Tr. 65 - 67, 73 -7 4).

CSHO
Calderon
testified that the gravity-based penalty proposed for Citation
1 , Item
5
was $ 12,934
because the gravity of the violation was assigned a “ Greater
(Severity)” and “ Higher
(Probability).” (Tr. 75 ). T he gravity-based penalty was reduced by
6 0%
for size.

(Tr. 76). The Secretary did not give any
reductions
or good faith
or history. (Tr.
76 , 267 - 68).

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 75-76). The Court has considered
all of
the required factors and affirms
Citation 1 , Item
5
a) and b)
as a serious violation and
the
proposed
adjusted gravity-based penalty of $ 5,174 .

6 .    Citation 1, Item 6 :

Failure to Reduce the Pressure of Compressed Air
a) at the Maureen Johnson Rip Saw and b) at the CANT E K Planer.

a .    Respondent Violated 29 C.F.R. § 1910.242(b).

29
C.F.R. § 1910.242(b) provides that compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. The cited standard applies because Respondent’s employees used two compressed air guns every workday to clean wood dust off machinery. Respondent failed to comply with § 1910.242(b) because on the cited date neither compressed air gun was reduced to less than 30 p.s.i. 84

(Tr. 76 -81 , 429; Ex. 10). During her onsite inspection, CSHO Calderon observed
Messrs.
[redacted]
and
[redacted]
using the compressed air guns.

(Tr. 77 -83 ; Ex. 10 ) . The two compressed air guns were hooked up to a compressed air tank that had pressure at 90 p.s.i.

(Tr. 161). Using an air gauge, CSHO
Calderon measured
the pressure of the compressed air gun at the Maureen Johnson wood saw at 40 p.s.i. and at the Cantek planer 85
cleaner at 50 p.s.i. respectively. (Tr. 77-78). 86

Employees were exposed to serious physical injuries such as cuts to the skin, lacerations and/or embolisms from excessive air pressure.

(Tr. 79 -83 ). Thomas Vavra was aware that the two compressed air guns did not have reducers. T HD
had been cited for and affirmed a violation of the same standard in 2012 . During OSHA’s 2018 inspection,
Mr. Vavra told CSHO Calderon that reducers were no longer being used on compressed air guns. 87
(Tr. 80, 428 - 30 ; Ex. 29 , at
5,
Ex. 31 , at
2,
Ex. 32). Mr. Vavra testified that when he purchased new compressed air guns, he did not put reducers on them.

(Tr. 429 - 30).

b .    Citation 1, Item
6
a) at the Maureen Johnson Rip Saw and b) at the CANT E K Planer
Was Properly Classified as Serious and the Penalty
Proposed is Appropriate.

Citation 1, Item 6 was properly classified as serious because employees were exposed to
serious
physical injuries
such as cuts to the skin, lacerations and/or embolisms.

(Tr. 79 -83 , 141-42 ) .
See
Quality Stamping Prods. Co. ,
No.
91 - 414 ,
1992
WL
675227 , at

• 14
  (O.S.H.R.C.A.L.J.,
  Nov. 23 ,
  1992 ) (Violation of 29 C.F.R. §1910.242(b) serious
  where air p.s.i. exceeding 30 p.s.i. can cause lacerations) ,
  aff’d ,
  No. 91-414, 19 94
  WL 382494 (O.S.H.R.C., June 21, 1994) .
  CSHO
  Calderon
  testified that the gravity-based penalty proposed for Citation
  1 , Item
  6
  was $ 5,543
  because the gravity of the violation was assigned a “ Low
  (Severity)” and “ Lesser
  (Probability).” (Tr. 81 ) . Four employees , including Messrs.
  [redacted]
  and
  [redacted] ,
  were exposed to the hazard.

(Tr. 79-83) . T he
Secretary reduced the
gravity-based penalty by
6 0%
for size.

(Tr. 81). No reductions
were given for good faith
or history. (Tr. 267 - 68).

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 81-82). The Court has considered
all of
the required factors and affirms
Citation 1 , Item
6 a) and b) as a serious violation and
the
proposed
adjusted gravity-based penalty of $ 2,217 . 88

(Sec’y Post Hrg. Br., at 61-68).

7 .    Citation 1, Item 7 :

Alleged
Failure to Guard Live Electric Parts
in the Circuit Breaker box

a. The Secretary has not shown
Respondent Violated 29 C.F.R. § 1910.303(g)(2)(i).

29
C.F.R. § 1910.303(g)(2)(i) requires that live parts of electric equipment operating at
50 volts or more
be guarded against accidental contact by use of approved cabinets or other forms of acceptable enclosures. (emphasis added). Respondent argues that “the Secreta r y did n o t sustain his burden of proving a violation of the regulation” because there is “no evidence presented as to the number of volts that were present in the circuit box.” (Resp’t Post-Trial Br., at 15). The Court
agrees. Respondent is correct. The
Secretary has not shown that
29
C.F.R. § 1910.303(g)(2)(i)
applies .

CSHO Calderon testified: Q Do you know how many volts were being serviced by the circuit breaker
b ox? A I
don’t . (Tr. 144).

Accordingly, Cita tion 1, Item 7
is
vacated,
and no penalty is assessed by the Court.

8 .    Citation 1, Items 8a and 8b :

Failure to cover live electrical parts

a .    Respondent Violated 29 C.F.R. § 1910.305(b)(1)(ii).

29 C .F.R. § 1910.305(b)(1)(ii) requires that unused
openings in boxes, cabinets and
fittings be effectively closed. The cited standard applies because the circuit breaker box was used
daily
at the workplace to power machinery ,
such as but not limited to the planer, chop saw
and end matcher. Respondent failed to comply with
§ 1910.305(b)(1)(ii)
because
the circuit breaker box was missing several filler plates. 89

(Tr.
84 ,
89-90;
Ex. 1 , at
14,
Ex. 12).

E mployees used the circuit breaker box to switch breakers for various machinery every day.

(Tr. 86-87, 91 , 385 ). CSHO Calderon
testified
that there needed to be filler plates in several places on the breaker panel.

(Tr. 89 - 90, 146; Ex. 12 , at 1, “A” -“ C”, at
2 , “B” ).
T he door to the circuit breaker box was left open
on a daily basis
and the exposed electrical parts were in plain view. 90

(Tr. 87, 91, 142, 161 - 62; Ex. 12).

See Lloyd Indus., Inc ., No. 15-0846 ,
2017 WL 3284204, at *35 (O.S.H.R.C.A.L.J., June 19, 2017)
(consolidated)
(unclosed opening violation in plain view could have been observed by supervisors). CSHO Calderon observed t he condition on both January 11 and 19, 2018 .

(Tr. 84).

Respondent ’s argument that the circuit breaker box was originally installed by a licensed electrician
at some point in time
d oes
not
offer any
substantive
defense
to this violation
that occurred on January 11, and 19, 2018 .

(Tr. 385 - 86 ; Resp ’t
Post-Trial Br., at 9 ).

b .    Respondent Violated 29 C.F.R. § 1910.305(b)(2)(i) .

29
C.F.R. § 1910.305(b)(2)(i) requires that
each
outlet box
in completed installations have a cover, faceplate, or fixture canopy . The
cited standard applies because
a n uncovered
conduit box
was connected to the chipper at the workplace.

(Ex. 1 , at
2, at
3 ,
“ A ” ). Respondent failed to comply with
§ 1910.305(b)(2)(i)
because
CSHO Calderon saw on January 11 and January 19, 2018, that
the conduit box
was
missing a n adequate
cover. 91

(Tr. 91 -92 ;
Ex. 1 , at
15,
Ex. 11).

The conduit box was
only covered with cardboard and duct tape
and had
electrical conduit and wood chips
inside of it .

(Tr. 92; Ex. 11). T he
uncovered
conduit box was in plain view. 92

(Tr. 93-94; Ex. 11) . The condition of the conduit box was the same on both January 11 and 19, 2018 .

(Tr. 92). In its Post Trial Brief,
Respondent
admitted that the missing cover to the conduit box “is a violation of the regulation”. (Resp’t Post-Trial Br., at 16, ¶¶ 31-32). It
concedes that the allegation “may constitute a technical violation , ” but argues that there was no evidence as to any alleged danger created by the violation. (Resp’t Post-Trial Br., at 9 , 16 ,
¶32 ). Respondent is mistaken. CSHO Calderon testified that everyone in the workplace was exposed to a fire hazard that could occur “[w]ith the wood chips in the box with the conduit.” (Tr. 93). See
Automated Handling & Metalfab, Inc. , No.
07 - 1763 , 20 08
WL
5111329 , at * 6
(O.S.H.R.C.A.L.J.,
Aug. 29 , 20 08 ) (The hazard created by the missing cover was exposing employees to the risk of electrical shock).

c .    Citation 1, Items 8a and 8b ,
Were Properly Classified as Serious and the Penalty Proposed is Appropriate.

Respondent’s failure to close all live openings in the circuit breaker box
as alleged in Item 8a
exposed employees to serious physical injury such as electrical shock.

(Tr. 90 , 94, 142, 144 ). In addition,
Respondent’s failure to properly cover the conduit box connected to the chipper
as alleged in Item 8b
exposed employees to a fire hazard.

(Tr. 93 - 94 ).
CSHO
Calderon
testified that the gravity-based penalty proposed for Citation
1 , Item s 8a and 8b w as $ 9,239
because the gravity of the violation was assigned a “ High
(Severity)” and “ Lesser
(Probability).” (Tr. 94 ). Item 8a was assigned high severity because employees were exposed to electrical
shock hazards every day.

(Tr. 86-87 ) . Item 8b was assigned high severity because everyone in the workplace was exposed to a fire hazard.

(Tr. 93). T he
Secretary reduced the proposed
gravity-based penalty
by
6 0%
for size.

(Tr. 94).

The Secretary did not give any reductions
for good faith
or history. (Tr.
94,
267 - 68).

OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr. 94-95). The Court has considered all of the required factors and affirms
Citation 1 , Item s 8a and 8b, as serious violations and
the
proposed
adjusted gravity-based penalty of $ 3,696 . 93
( Sec’y Post Hrg. Br., at 70-71).

9 . Citation 2, Items 1a and 1b:

Willful /Repeat/Serious
(In the alternative)
Failure to Comply with the Lockout/Tagout Standard.

a. Respondent Violated 29 C.F.R. § 1910.147(c)(1).

29 C.F.R. § 1910.147(c)(1) requires that the employer establish a program consisting of energy control procedures, employee training, and periodic inspections to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, startup or release of stored energy could occur and cause injury, the machine or equipment shall be isolated from the energy source, and rendered inoperative. The standards contained in 29 C.F.R. § 1910.147 cover the “servicing and maintenance of machines and equipment in which the
unexpected
energization or start-up of machines or equipment” could injure an employee.

29 C.F.R. § 1910.147(a)(1)(i)
(emphasis in original).

The cited standard applies here because Respondent’s employees regularly performed servicing and maintenance on several machines at the workplace
such as the planer, ripper, moulder and upcut saws
that could have unexpectedly energized and/or started up. Energy control procedures are required whenever an employee is required to perform servicing and/or
maintain a machine or equipment when there is potential for the machine or equipment to “energize, start up, or released stored energy without sufficient advance notice to the employee.”
Dayton Tire, Bridgestone/Firestone , No. 94-1374, 2010 WL 3701876,
at *5 (O.S.H.R.C., Sept. 10, 2010),
aff’d in relevant part ,
671 F.3d 1249 (D.C. Cir. 2012).

See also Gen. Motors Corp. ,
Delco Chassis Div. , 1995 WL 247469, at
*2
(O.S.H.R.C., Apr. 26, 1995)
(consolidated)
(holding employers shall establish energy control procedures when employee is expected to interact with machine or equipment that can unexpectedly energize, start up, or release stored energy and cause injury),
aff’d sub nom. Reich v. Gen. Motors Corp. , 89 F.3d 313 (6 th
Cir. 1996).

Respondent’s employees
regularly
performed servic ing and
maintenance on the planer,
rip saw/ ripper, moulder and upcut saws such as
too l
changes ,
replacing blades and knives ,
and applying lubrica tion.

(Tr. 96, 102 -03,
108 - 1 3 ,
334, 403, 433,
448 - 49, 458 - 59 , 468; Ex.
38 , at
39-40). The blades on the ripper/ripsaw were changed
between one and
six times a week.

(Tr. 113 , 468 ). The knives on the planer and the blades on the upcut saws were changed bi-monthly .

(Tr. 110 -14 ). Under 29 C.F.R. § 1910.147(b), “servicing and maintenance” is defined as:

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 … (emphases added).

See
Gen. Motors Corp. ,
Delco Chassis Div. , No. 91-2973, 1995 WL 247469 ,
at *2.
Further,
OSHA ’s
Directive CPL 02-00-147 94
that applies to the control of hazardous energy (lockout/tagout) provides :

Activities requiring machine or equipment shutoff and disassembly, such as
changing a machine tool or cutting blade , usually take place outside of the normal production process and require energy isolating device lockout tagout
in accordance with §1910.147 .

(emphas i s added) .

CPL 02-00-147 ,
Ch. 3, Pt. IV,
at
3-25 . The same section of
CPL 02-00-147
also provides that activities such as lubrication are covered by § 1910.147. Respondent
does not
dispute that the replacing of blades and knives and lubrication performed by employees at the workplace constituted servicing and maintenance under the standard. (Resp’t Post Trial Br., at 9-10).

Respondent
failed to comply with
§
1910.147(c)(1) on the cited dates. 95 First, it failed to
establish a ny hazardous energy control (lockout/tagout)
program
or procedures as required. (Tr. 95 -96 , 157-58, 163-65, 331, 337, 386 ,
451 - 52; Ex. 18 , at 1-2,
¶¶ 3-5, Ex. 38 , at
34, 37- 38). Respondent’s safety program
does n o t
mention
e nergy control procedures.

(Tr. 331; Ex. 8 , at
7-8). Respondent failed to
adequately
train all employees who performed service and/or maintenance
on the machines . (Tr. 98- 104 ,
335-36,
434; Ex. 18 , at 5,
¶¶ 5, 9, Ex. 38 , at
36). Further,
Respondent failed to do
any
inspections
relating to hazardous
energy control procedures at the workplace for employees who performed service and/or maintenance on
the
machines. (Tr. 104, Ex. 18 , at 2,
¶¶ 3-4). Employees were exposed to the hazard of amputation or worse.

(Tr. 104-05).

Respondent argued that even though it
had no written program,
it ha d a procedure to “lock it out by taking the energy away from the machine.” 96

(Ex. 38,
at
39 ) . W hile
there were locks and tags present at
the workplace, none were
used,
and they were sitting in an unopened box when the OSHA inspection started in January 2018 . (Tr. 97 - 98,
107 ,
112,
260-61,
334; Ex. 16 , at
2-3, Ex. 38 ,
at
39 ,
42-43). Machines at the workplace had specific lock points where the locks could have been easily installed.

(Tr. 107, 112; Ex. 13 , at
3, Ex. 14 , at
3 - 4). Respondent
purchased lockout/tagout equipment, but
Mr. Vavra admitted
that it was never used.

(Tr. 334; Ex. 38 , at . 41-4 3 ). Mr. Vavra told CSHO Calderon that he did not use the lockout/tagout equipment because it was “common sense” not to touch the equipment.

(Tr. 98).

Mr. Vavra testified at
trial and at
his
Rule 30(b)(6)
deposition that the “procedure” used by employees was limited to merely switching the machines off.

( Tr. 331-33,
Ex. 38,
at
39 -40 ). Because the machines were only switched off without being locked out, Mr. Vavra admitted
at trial
that it was possible for someone to turn a machine on while an employee was performing service or maintenance.

(Tr. 389, 394). Further, employees interviewed by CSHO Calderon told her that there were no energy control procedures in place and that, consistent with Mr. Vavra’s account, they just turned off the power for servicing and maintenance. 97

(Tr. 157 - 58, 163 -64 ).

b. Respondent Violated 29 C.F.R. § 1910.147(c)(4)(i).

29 C.F.R. § 1910.147(c)(4)(i) requires that procedures be developed,
documented
and utilized for the control of potentially hazardous energy when employees are engaged in the activities covered by that section. The standards contained in 29 C.F.R. § 1910.147 cover the “servicing and maintenance of machines and equipment in which the
unexpected
energization or
startup
of machines or equipment” could
injure an employee.

29 C.F.R. § 1910.147(a)(1)(i)
(emphasis in original). As discussed above, the cited standard applies here because Respondent’s employees performed service and maintenance on
various
machines at the workplace that
had two power sources. The planer, rip saw/ripper, moulder and upcut saws were all powered by both electricity and air.

(Tr. 105-07, 110-13,
165-66, 460, 481-82; Ex. 15, at
2). Because those machines had multiple energy sources that had the potential for the release of stored or residual energy that could endanger employees when they performed service and maintenance, machine-specific procedures to control potentially hazardous energy were required.
Drexel Chem .
Co. ,
No. 94-1460, 1997 WL 93945,
at *6
(O.S.H.R.C.,
Mar. 3,
1997)
(holding that specific procedures are required when machines have multiple energy sources).

Respondent failed to comply with the requirements of § 1910.147(c)(4)(i) on the cited dates. 98

As discussed, Respondent did not utilize lockout/tagout equipment and procedures. Respondent did not have any written hazardous energy control program or procedures. (Tr. 95, 105, 331, 337, 386; Ex. 8, at
7-8, Exs. 9, 13-16, Ex. 18, at 1-2,
¶¶ 3-5, Ex. 38, at
34, 38). A written
hazardous energy control
program
must
include :

(1)
t he names of affected employees; (2)
the types an d magnitudes of energy involved; (3)
the hazards involved ; (4)
the methods that should be used to control energy sources ; (5)
the types and location of the machines and energy isolating devices ; (6)
the types of stored energy and methods to dissipate or restrain energy ; and (7)
the method of verifying the isolation of the equipment at issue.
Drexel Chem . Co. , 1997 WL 93945,
at *5. Employees, including Messrs.
[redacted],
[redacted], and
[redacted],
were exposed to serious injuries such as amputation.

(Tr. 114-15).

c. Citation 2, Items 1a and 1b ,
Are
Classified as Willful.

As established in
section
VA2 , Citation 2, Items 1a and 1b were properly classified as
willful under section 17(a) of the OSH Act. The record establishes that Respondent, again
generally
through Thomas Vavra’s actions, exhibited both intentional disregard and plain indifference to the requirements of both cited standards and made no good faith effort to comply. Mr. Vavra had a heightened awareness of the cited standard and hazardous conditions presented by failing to establish hazardous energy control procedures because T HD
was cited for
a
serious violation of 29 C.F.R. § 1910.147(c)(1) in July 2012.

(Tr. 328 - 29; Ex. 29 , at
3) . The prior citation specifically noted that the moulder and saws required energy control procedures for employees performing servicing and maintenance.

(Ex. 29 , at
3).

As a result of that
2012
citation, Mr. Vavra was put on notice that a hazardous energy control program consisting of energy control procedures, employee training and periodic inspections were required at the workplace. (Tr. 328-29; Ex. 29 , at
3, Ex. 38
at
40) .

See N. Atl. Fish Co. , 2001 WL 1263331, at *11 (finding willful violation of 29 C.F.R. § 1910.147(c)(1) where employer previously cited for same violative condition a few years before and probably not corrected clearly demonstrating a “failure to act in the face of a known duty.”).

In
August 2012,
Mr.
Vavra
certified that the following actions were taken to abate the cited violation:

An energy control program with a lock out tag out procedure has been developed and implemented. It is inclusive of procedures,
training
and inspections.

(Ex. 31). T he record establishes that all of Mr. Vavra’s
representations
and certifications to OSHA in 2012 that
the citation for violation of 29 C.F.R. § 1910. 147(c)(1)
had been abated
were , at best,
inaccurate . 99

(Tr. 337; Exs. 30 - 32, 38 , at
40-41). Mr. Vavra, despite possessing
lockout/tagout equipment, chose not to utilize it because he thought it better to rely on “common sense” rather than complying with the lockout/tagout standards to protect employee safety. Sec ’ y v.
Capital Cit y
Excavating Co., Inc. , 712 F.2d at
1010
(employer’s belief employees were not exposed to a hazard inapplicable to a determination violation was willful ) .

W hen asked
by Respondent’s counsel
why
Respondent
did not use lockout/tagout at the workplace, Mr.
[redacted]
replied, “you wouldn’t make any money.” (Tr. 453). Mr.
[redacted] , who testified that he is a supervisor and would be in charge in Mr. Vavra’s absence, revealed in his answer how Respondent prioritizes production and profit over
employee safety.

(Tr. 439, 458 ) .

See
Worldwide M fg. , Inc. , No. 97-1381, 2000 WL 1086 7 17 ,
at *4 (O.S.H.R.C., Aug. 2,
2000)( putting production over employee safety constitutes willful conduct).

C ontrary to what Mr. Vavra
certified
was done to abate the prior
2012
citation,
no
employees who performed servic ing
and/or maintenance
on the machines were
adequately
trained on energy control or lockout/tagout and no
inspections
relating to hazardous
energy control procedures
were done as certified . (Tr. 98 -100 , 103 - 04 , 434 ;
Ex. 18 , at 1-2,
¶¶
3- 5, 9,
Ex. 31,
Ex. 38 , at
36 ) . In addition, no energy control procedures, written or otherwise, were “developed and implemented” as certified . (Tr. 95, 105, 331, 337, 386; Ex. 8 , at
7-8, Exs. 9, 13-16, Ex. 18 , at 1-2,
¶¶ 3-5,
Ex. 31,
Ex. 38 , at
34, 38 ). T he
Court
finds that the
violations in Citation 2, Items 1a and 1b ,
are
properly classified as willful.

d. In the Alternative, Citation 2, Items 1a and 1b
Are
Repeat Violations.

The Court also finds
Citation 2, Items 1a and 1b ,
repeat violations under
section 17(a). 100 On June 12, 2012 , Respondent’s predecessor
at the worksite ,
THD ,
was issued a citation for
violation of 29 C.F.R. § 1910. 147 (c)(1)
in Inspection No. 330566 (Citation 1, Item 3)
for not establishing an energy control program for employees performing servic e
and maintenance on various machines including, as in the instant case, the moulder and saws .

(Tr. 328 - 29; Ex. 29 , at
3) .

In November 2012, Mr. Vavra signed a Stipulated Settlement on behalf of T HD
affirming the citation for
violation of 29 C.F.R. § 1910.147 (c) (1) .

(Tr. 329 - 30, 336, 357; Ex. 32) . The citation issued to T HD
for
violation of 29 C.F.R. § 1910.147 (c)(1) on June 12, 2012 in Inspection No. 331026 became a final order of the Commission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(i )
(Docket No. 18-1212) ) . Citation 2, Item 1a ,
is affirmed as
a repeat violation.

In addition, the prior citation issued to T HD
can be used as a basis for a repeat classification of the citation issued for violation of 29 C.F.R. § 1910.147(c)(4)(i) as alleged in Citation 2, Item 1b. Both energy control standards are substantially similar in that they both address the same hazard of machines unexpectedly reenergizing, restarting or releasing stored energy that could injure cause employees to suffer serious injury as amputations while engaged in servic e
or maintenance. Potlach Corp. , 1979 WL 61360 ,
at *4 (violations that involve similar hazards are substantially similar, notwithstanding that a different standard was cited). In addition, both the prior
2012
citation and Item 2b note that employees were performing servic e
and maintenance on the moulder and saws.

(Ex. 1 , at
17, Ex. 29 , at
3). Citation
2 , Item
1 b ,
is
also
a ffirmed as a
repeat violation.

e. In the alternative,
Citation 2, Items 1a and 1b
Are
Also Serious Violations.

Citation 2, Items 1a and 1b
are
also Serious violations under section 17(k) of the OSH Act because
Respondent’s failure to establish a program consisting of energy control procedures, employee training and periodic inspections
as well as failure to have any written procedures for the control of potentially hazardous energy
exposed employees to serious physical injuries such
as amputation in the event a machine unexpectedly restarted while the e mployees were performing servic e
and/or maintenance. 101

(Tr. 104-05 , 114-15 ).

See N eb.
Aluminum Castings, Inc. , No. 09-0800, 2010 WL 8609338 ,
at *10 (O.S.H.R.C., Sept. 30, 2010).

f. The Violations are Affirmed and the Court Assesses a
Penalty
of $41,734
for Citation 2, Items 1a and 1b.

As discussed above, Respondent’ s violations of § 1910.147 (c)(1)
and § 1910.147(c)(4)(i) were
willful ,
repeat , and serious
violations . The gravity of a violation is determined by its severity and its probability. AD
Prebish testified that the gravity-based penalty proposed for Citation
2 , Item s
1 a and 1b ,
was $129,336 because the gravity of the violation was rated “High (Severity)” and “Greater (Probability) . ” 102

Employees frequently performed servic e
and/or maintenance on the machines for many years. (Tr.
96, 102 - 03 ,
108 - 1 2 ,
266,
334 ,
403, 433,
448-49 ,
458-59 , 468; Ex.
38 , at
39-40). Given the risk of amputation s
and the willful and repeat nature of the violation s ,
a meaningful penalty is appropriate .

(Tr. 104-05, 114,
266). AD Prebish testified that the gravity-based penalty was reduced by 60%
for employer size .

(Tr. 266). N o reductions were given
by the Secretary
for good faith or history.

(Tr. 267, 278).

The Court affirms Citation 2, Items 1a and 1b, as a willful, repeat, and serious violation of the cited standard.

The Court has considered
all of
the required factors
for consideration
with regard to Citation 2, Items 1a and 1b, and assesses a penalty of $41,734 , and not the $51,734 proposed by the Secretary. While Timberline concedes it did not have any written procedures in place, its machine operators followed unwritten procedures while servicing or maintaining Respondent’s mac h ines. Respondent permits only a few long-term employees to service its
machines. Neither THD nor Respondent have ever had any lost time accidents. (Tr. 36 5-6 6, 439-40, 466; Resp’t Post Trial Br., at
3,
26).

(Sec’y Post Hrg. Br., at 48-56).

10. Citation 2, Item 2 : Willful Failure to Train and Evaluate
    Forklift
    Operators.

a. Respondent Violated 29 C.F.R. § 1910.178(l)(1)(i).

29 C.F.R. § 1910.178(l)(1)(i) requires that the employer ensure that each operator of powered industrial trucks is competent to operate
a PIT
safely, as demonstrated by the successful completion of the training and evaluation specified in
§ 1910.178(l). The cited standard applies because two forklifts were
routinely
operated by employees
at the workplace
who had not been trained by Respondent on forklift operations, including Messrs.
Anthony
Vavra ,
[redacted] , and
[redacted] .

(Tr. 116,
158-59,
337-38, 395,
455,
461, 476, 484-85 ; Ex. 17, Ex. 38 , at
43 ). Respondent failed to comply with the standard . I t took no action to train or evaluate any
employees who operated
the forklifts to ensure that they
were competent to operate them safely.

(Tr. 115-1 7 , 159, 337 - 39, 461, 476, 484-85; Ex. 18 , at 2,
¶¶ 7, 9, Ex. 38 , at
43-44). Respondent failed to meet any of the requirements set forth in § 1910.178(l). Respondent has no records that it ever evaluated or trained any employees on forklifts.

(Ex. 18 , at 2,
¶¶ 7, 9). All
Respondent’s
e mployees were exposed to hazards from being struck by a forklift or materials.

(Tr. 118). Mr. Vavra admitted that he never evaluated
the competency of
forklift operators , including Messrs.
[redacted]
and
[redacted] ,
or gave them written or driving exam ination s.

(Tr. 337 - 3 9 ; Ex. 38 ,
at
44 - 45 ; Resp’t Post Trial Br., at 24 ).

Both
Messrs.
[redacted]
and
[redacted]
testified that they had never been given a written or driving test while employed
by
Respondent.

(Tr.
337,
461, 484 - 85 ; Ex. 38, at 44 ).

The lack of training and evaluation manifested itself in
an
unsafe practice .

CSHO Calderon testified that
when she was conducting her onsite inspection in January 2018, she observed
Mr.
[redacted]
operating a forklift without wearing a seat belt. Mr.
[redacted]
told CSHO Calderon that Respondent had not trained,
tested
or evaluated him on his ability to operate a forklift competently. (Tr. 117, 159). She also saw Messrs.
[redacted]
and
Anthony
Vavra
operating a forklift. (Tr. 117, 158 -59) . [redacted]
told her that he had not received any forklift training.

b. Citation 2,
Item 2 Was
Properly Classified as Willful.

The record establishes that Respondent exhibited both intentional disregard and plain indifference to the requirements of 29 C.F.R. § 1910.178(l)(1)(i)
and
made no good faith efforts to comply. Mr. Vavra had a heightened awareness of the hazardous conditions presented by failing to ensure that forklift operators were trained and evaluated to be competent because T HD
was cited for serious violation of the same standard in July 2012.

( Tr. 328 - 29; Ex. 29 , at
4 ) . As a result of that
2012
citation, Mr. Vavra was put on notice that
he was required to ensure that all forklift operators were trained as required by the standard and evaluated to make sure they operated the
PITs
competently . (Tr. 328-29; Ex. 2 8, at 2, ¶ 9 , Ex. 38 , at
40).

In
August 2012, Mr. Vavra
certified to OSHA that
the following actions were taken to abate the cited violation:

A forklift training program has been developed and implemented. It’s
inclusive of training with a written and driving exam.

Completion date : 4/23/12

(Ex. 31). 103

Mr. Vavra admitted that none of these measures were taken and offered
no
explanation for his failure to abate the violation
in 2012 . (Tr.
339 ;
Ex.
38 , at
45 ). Citation 2, Item 2 was properly classified as willful.

c. In the Alternative,
Citation 2, Item 2
is Affirmed a s a Repeat Violation.

In the alternative, Citation 2, Item 2 was a repeat violation because
there was a Commission final order against T HD
for violation of the same
exact
standard
in 2012 . 104

T HD
was cited for violation of 29 C.F.R. § 1910.178(l)(1)(i) in Inspection No. 330566
on July 12, 2012.

( Tr. 328; Ex. 29 , at
4 ) . In November 2012,
Mr.
Vavra signed a Stipulated Settlement on behalf
of THD
affirming the citation .

( Tr. 339; Ex. 32 ) . The citation issued to T HD
for violation of 29 C.F.R. §
1910.178(l)(1)(i) became a final order of the C ommission on February 6, 2013.

( Jt. Pre-Hrg. Stmt. ,
§ 4(i) (Docket No. 18-1212) ) . Because both citations are for violation of the same standard and employees were exposed to the same struck by hazards, Citation 2, Item 2
is
also
affirmed as
a repeat violation.

d. In the Alternative,
Citation 2, Item 2
is
Also
Affirmed as
a Serious Violation.

Citation 2, Item 2 was also a Serious violation under section 17(k) of the OSH Act because employees were exposed to serious hazards from being struck by a forklift or other materials due to Respondent’s failure to train and evaluate forklift operators to ensure they were competent. 105

(Tr. 118).

e.    The Penalty Proposed for Citation 2, Item 2
is
Appropriate

and
is
Affirmed.

Respondent’ s violation of § 1910.178(l)(1)(i) was
willful and
in the alternative
both
repeat
and serious . AD
Prebish testified that the gravity-based penalty proposed for Citation
2 , Item
2
was $110,856
because the gravity of the violation was rated “ Medium
(Severity)” and “ Lesser
(Probability).” (Tr. 271 ).

Given the fact that the forklifts were operated every day by employees who had not been trained and evaluated, the gravity determination was
justified .

(Tr.
455). Due to
the
hazards resulting from the violation
and
its
willful ,
repeat , and serious
nature, OSHA used appropriate judgment in determining the gravity of the violation.

(Tr. 118).

AD Prebish testified that the gravity-based penalty was reduced by 60% for size.

(Tr.
171 ). N o
reductions were given for good faith and n o penalty adjustment s were applied
for history.

(Tr. 271).
He said that the adjusted gravity-based penalty was $44,342. (Tr. 271). OSHA
made appropriate and supported determinations of
all of
the required factors . (Tr.
271). The Court has considered
all of
the required factors and affirms
Citation 2 , Item
2, as a willful, repeat, and serious violation and
the
proposed
adjusted gravity-based penalty of $ 44,342 .

(Sec’y Post Hrg. Br., at 57-60).

D .

RESPONDENT FAILED TO PROVE
UNPREVENTABLE EMPLOYEE MISCONDUCT AND INFEASIBILITY

In both Answers to the Complaints in this case, Respondent generally pled the affirmative defenses of unpreventable employee misconduct 106
and infeasibility. 107

Respondent produced
insufficient
evidence at trial to establish either affirmative defense for any violation.

(Exs. 18-19, 28).

1. Respondent Failed to Establish Unpreventable Employee Misconduct
   in Citation 1, Items 8a, 8b, Docket No. 18-1212 .

In order to establish unpreventable employee misconduct, an
employer is required to prove:

“(1)
that
the employer has established work rules designed to prevent the violation; (2)
that
it has adequately communicated those rules to its employees; (3)
that
it has taken steps to discover violations; and (4)
that
it has effectively enforced the rules when violations have been discovered.”

Precast Serv . , Inc. , No. 93-2971 , 1995 WL 693954 ,
at 1
( O.S.H.R.C. ,
Nov. 14,
1995)
( quoting
Nooter Constr .
Co. ,
No. 91-0237, 1994 WL 27750 ,
at 6 (O.S.H.R.C., Jan. 31, 1994) ) ,
aff’d , 106 F.3d 401 (6 th
Cir. 1997) ;
s ee also,
Capform, Inc. ,
No.
91-1613,
1994 WL 530815 ,
at *3
( O.S.H.R.C., Sept. 29,
1994).

First, Respondent had practically no safety work rules. Only about
a one - page section identified as
“ Employee Safety Program”
was
contained in its Employee Handbook.

( Tr. 57 ;
Ex. 8 , at
7-8, Ex. 18 , at
¶ 1, Ex. 28 , at
¶ 1). Respondent
has a deficient s afety program.

(Tr. 267; Ex. 8 , at
7-8).

Second, Respondent failed to train employees on significant safety and health issues ,
including hearing conservation, hazardous chemicals, fire extinguisher use, hazardous energy control, or safe operation of forklifts. There are
no training records in
the record .

(Ex. 18 , at
2,
¶¶ 5 - 6 .
8 - 10, Ex. 28 , at
1-2,
¶¶ 3, 7, 9 -1 1). Respondent has also not shown that it
took
adequate
steps to ensure employees were working safely. Lastly, Respondent offered no evidence showing employees were disciplined for violating
any
work rules.

(Ex. 18 , at
2,
¶ 11, Ex. 19 , at
21, Ex. 28 , at
3,
¶ 12). (Sec’y Post Hrg. Br., at 72-73).

2 .    Respondent Failed to Establish Infeasibility
as to Citation 1, Item 5, Docket No. 18-1212 .

To establish an infeasibility affirmative defense, an employer must prove that :

(1) the means of compliance prescribed by the applicable standard would have been infeasible under the circumstances in that :

(a) its implementation would have been technologically or economically infeasible, or (b) necessary work operations would be technologically or economically infeasible after its implementation, and (2) :

either (a) an alternative method of protection was used, or (b)
there was no feasible alternative means of protection. Armstrong Steel
Erec tion,
Inc. , No. 92 262 , 1995 WL 561592 ,
at *2
( O.S.H.R.C. ,
Sept. 20,
1995) . Respondent has t he burden of proof to prove infeasibility.

A.J. McNulty &
Co .,
Inc. , No. 94-1758 , 2000 WL 1490235 ,
at *10 (O.S.H.R.C. ,
Oct. 5,
2000 ) .

Respondent
has not met
its burden to show that compliance with any of the cited standards , including Citation 1, Item 5, Docket No. 18-1212,
was infeasible. Respondent asserted
infeasibility
with regard to
the guarding violation alleged in Citation 1, Item 5 in Docket No. 18-1212. 108
In its Post-Trial Brief, Respondent argues a wider
(or extended)
saw blade guard would be impractical “because a wider guard would obscure the operator’s view of where the saw would cut the wood” and create a pinch point dangerous to the operator’s hands. ( Tr. 380-82; Ex. 9, at 3;
Resp’t Post Trial Br., at 7 , 14-15 ). M r. Vavra admitted that he did not consult with any safety consultants or research how the upcut saws could be fully guarded, he merely used his own “common sense.”

(Tr. 426-27; Ex. 19 , at
16). He
told CSHO Calderon during the
OSHA
inspection that guards get in the way of production.

(Tr. 65-66, 71-72).
CSHO
Calderon testified that both
upcut
saws could have been properly guarded with a larger,
commercially available
guard that would provide full protection and Mr. Vavra testified that he was aware that larger guards are available.

(Tr. 74-75, 136, 380). (Sec’y Post Hrg. Br., at 73-74).

E .    Respondent’s Tax Returns
Do Not Justify any further Penalty Reduction.

At the
trial , Respondent offered into evidence its federal tax returns for the years 2015, 2016, 2017 and 2018 claiming they should be considered as a factor of the size of the company
for penalty purposes.

(Tr. 32-33; Exs. B-E). Over the Secretary’s objections, the Court admitted the tax returns into evidence, citing
its
prior
decision in
J.C. Stucco and Stone, Inc. , No. 14-1558 ,
2016 WL 7363932 (O.S.H.R.C.A.L.J., Nov. 7, 2016)
(consolidated) . In
J.C. Stucco and Stone, Inc. ,
this Court
similarly held that financial information can be relevant to the employer
size
factor for determination of penalty amount. 109

Id. ,
at *8.
H ere ,
the Secretary does not dispute that Respondent is a small employer
and concedes Respondent is a small employer for penalty purposes.

T he Secretary’s proposed penalties grant ed
Respondent the full reductions permitted under the FOM based on Respondent’s small size, as discussed
supra .

T he
Court finds that Respondent’s
tax returns do not justify any further penalty reduction. “ Before the Court can decide whether an employer’s poor financial condition can properly weigh towards a penalty reduction, Respondent must actually prove its precarious financial condition and establish that it deserves to have its poor finances affect the penalty .” Id. ,
at *9. H ere
Respondent
introduced its
tax returns at trial
but did so
without showing any financial hardship that warrants further reduction of the penalties .
As
in
J.C. Stucco
and Stone ,
Respondent
“ did not have the tax preparer testify or make any supporting documentation available .”

Id. ,
at *9
n.

21. Furthermore, in its most recent
    2018
    tax return ,
    Respondent had $3,325,714 in gross sales , $25,787
    in ordinary business income,
    and $1,127,721 in assets
    at the end of the tax year .

(Tr. 407; Ex. E). The Court finds
Respondent failed to show that its financial condition warrants any further reduction in penalty.

V I . FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

A. Docket No. 18-1211

1. Jurisdiction of this action is conferred upon the Commission by section 10(c) of the
   OSH
   Act (29 U.S.C. § 651 , et seq .) .

( Jt. Pre-Hrg. Stmt. ,
§
5 ).

2. At all relevant times,
   R espondent was engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the
   OSH
   Act and
   was an employer within the mean ing of section 3(5) of the OSH Act .

( Jt. Pre-Hrg. Stmt. ,
§ 4(a) ) .

3. Respondent violated 29 C.F.R. § 1910.95(c)(1) by failing to institute a continuing, effective hearing conservation program when employee noise exposures equaled or exceeded an 8-hour
   TWA
   sound level of 85 dBA .

(Citation 1, Item 1) .

4. Respondent violated 29 C.F.R. § 1910.1200(e)(1) by failing to develop, implement and/or maintain a written hazard communication program at the workplace . (Citation 1, Item 2a) .

5. Respondent violated 29 C.F.R. § 1910.1200(g)(1 )
   by not having a safety data sheet in the workplace for each hazardous chemical used .

(Citation 1 , Item 2b).

6. Respondent violated 29 C.F.R. § 1910.1200(h)(1) by not providing employees with information and training on hazardous chemicals in their work area .

(Citation 1, Item 2c) .

7 .    T he violations alleged in Citation
1 , Item
1
and Items 2a, 2b, and 2c,
issued to Respondent were willful violations under section 17(a) of the OSH Act.

8 .    In the alternative, the violations alleged in Citation 1 ,
Item
1
and Items 2a, 2b, and 2c
were repeat violations under
s ection 17(a) of the OSH Act .

9. In the alternative, t he violations alleged in Citation 1 , Item 1
   issued to Respondent were
   also
   serious violations und er s ection 17(k) of the
   OSH
   Act.

10. In the alternative, t he violations alleged in Citation 1, Items 2a, 2b and 2c were
    also other-than-serious
    violations within the meaning of section
    17(c) of the OSH Act.

11. T he penalties proposed by
    the Secretary
    for
    all of
    the alleged violations
    in Docket No. 18-1211 are
    appropriate and
    are
    affirmed.

B.
Docket No. 18-1212

1. Jurisdiction of this action is conferred upon the Commission by section 10(c) of the
   OSH
   Act (29 U.S.C. § 651,
   et seq .) .

( Jt. Pre-Hrg. Stmt. ,
§
5 ).

2. At all relevant times,
   R espondent was engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the
   OSH
   Act and
   was an employer within the meaning of section 3(5) of the
   OSH
   Act .

( Jt. Pre-Hrg. Stmt. ,
§ 4 ).

3. Respondent violated 29 C.F.R. § 1910.36(d)(1) by keeping an emergency exit
   improperly
   door locked .

(Citation 1, Item 2) .

4. Respondent violated 29 C.F.R. § 1910.37(b)(6) by having an exit sign not adequately i lluminated .

(Citation 1, Item 3).

5. Respondent violated 29 C.F.R. § 1910.157(g)(1) by not training employees on the general principles of fire extinguisher use and the hazards involved with incipient stage fir efighting .

(Citation 1, Item 4).

6. Respondent violated 29 C.F.R. § 1910.212(a)(1) by
   failing to
   properly
   guard points of operation hazards on
   the Whirlwind and Northtech up-cut saws
   used by employees .
   (Citation 1, Item 5 a ),b ) ) .

7. Respondent violated 29 C.F.R. § 1910.242(b) by not ensuring that compressed air used for cleaning purposes was reduced to less than 30 p.s.i.

(Citation 1, Item 6 a ),b ) ) .

8. Complainant did not show that
   Respondent violated 29 C.F.R. § 1910.303(g)(2)(i) by having live electrical parts exposed due to a missing dead front from a circuit breaker box for the planer, chop saw and end matcher
   because the Secretary did not show that the standard applied here ;
   and
   Citation 1, Item 7
   is vacated.

9. Respondent violated 29 C.F.R. § 1910.305(b)(1)(ii) by having live electrical parts exposed due to missing filler plates from a circuit breaker box for the planer, chop saw and end matcher .

(Citation 1, Item 8a ).

10. Respondent violated 29 C.F.R. § 1910.305(b)(2)(i) by having live electrical parts exposed due to a missing cover from a conduit box connected to the chipper .

(Citation 1, Item 8b) .

11. Respondent violated
    29 C.F.R. § 1910.147(c)(1)
    by not establishing and implementing a program consisting of energy control procedures, employee training and periodic inspections for employees who serviced and maintained machines and equipment such as, but not limited to, the
    planer, rip saw/ripper, m oulder, Whirlwind
    s aw and Northtech
    s aw .

(Citation 2, Item 1a) .

12. Respondent violated
    29 C.F.R. § 1910.147(c)(4)(i)
    by not developing, documenting, or utilizing procedures for the control of potentially hazardous energy for employees who serviced and mai ntained machines and equipment
    such as, but not limited to, the
    planer, rip saw/ripper, m oulder, Whirlwind
    s aw and Northtech
    s aw .

(Citation 2, Item 1b) .

13. Respondent violated
    29 C.F.R. § 1910.178(l)(1)(i)
    by failing to ensure that each
    PIT
    operator was competent to operate a
    PIT
    safely, as demonstrated by the successful completion of the training and evaluation specified in § 1910.178(l) .

(Citation 2, Item 2 ).

14. With the exception of
    withdrawn Citation 1, Item 1, and
    the vacated Citation 1, Item 7; all of the remaining
    violations alleged in Citation s
    1
    and 2
    issued to Respondent
    in Docket No. 18-1212
    were serious violations und er s ection 17(k) of the
    OSH
    Act.

15. T he violations alleged in Citation
    2 issued to Respondent were also willful violations under section 17(a) of the OSH Act.

16. In the alternative, the violations alleged in Citation
    2
    were repeat violations under
    s ection 17(a) of the OSH Act .

17. With the exception of Citation 2, Items 1a) and 1b) in Docket No. 18-121 2
    where the penalty assessed is $41,734 [and not $51,734 as proposed
    by the Secretary ] , withdrawn Citation 1, Item 1,
    and
    Citation
    1, Item 7 in Docket No.18-1212 that is vacated with no penalty assessed , the
    penalties proposed by OSHA for
    all of
    the
    other
    alleged violations
    in
    1 8-1212 are
    appropriate and
    are
    affirmed.

VII . ORDER

WHEREFORE b ased on these findings of fact and conclusions of law, it is
ORDERED
in Docket No. 18-1211
that Citation 1, Item 1, alleging a
willful, repeat, and
serious violation of 29 C.F.R. § 1910. 95 ( c ) (1)
is
AFFIRMED
and a penalty of $ 5 1, 734
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1211
that Citation 1, Item
2 , alleging a
willful, repeat, and
an other-than- serious violation of :

a)
Item 2a -
29 C.F.R. § 1910. 1200 (e) (1) , b)
Item 2b -
29 C.F.R. § 1910. 1200(g)(1),
and Item 2c -
29 C.F.R. § 1910. 1200(h)(1)
is
AFFIRMED
and a penalty of $ 9 , 239
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item
2 , alleging a
serious
violation of
29 C.F.R. § 1910. 36 ( d )( 1 )
is
AFFIRMED
and a penalty of $ 2 , 956
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item
3 , alleging a
serious
violation of
29 C.F.R. § 1910. 37(b)(6)
is
AFFIRMED
and a penalty of $ 2 , 217
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item
4 , alleging a
serious
violation of
29 C.F.R. § 1910. 157( g )(1)
is
AFFIRMED
and a penalty of $ 2 , 956
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item s
5a) and 5b) , alleging a
serious
violation of
29 C.F.R. § 1910. 212 ( a )( 1 )
is
AFFIRMED
and a penalty of $ 5 , 174
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item s
6a) and 6b) , alleging a
serious
violation of
29 C.F.R. § 1910. 242(b)
is
AFFIRMED
and a penalty of $ 2 , 217
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item
7 , alleging a
serious
violation of
29 C.F.R. § 1910. 303(g)(2)(i)
is
VACATED
and no
penalty is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation 1, Item s
8a) and 8b) , alleging a
serious
violation of
29 C.F.R. § 1910. 305(b)(1)(ii)
and
29 C.F.R. § 1910.305(b)(2)(i)
is
AFFIRMED
and a penalty of $ 3 , 696
is
ASSESSED ,

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation
2 , Item
1a
alleging a
willful, repeat, and
serious violation of 29 C.F.R. § 1910. 147 ( c ) (1)
and
Citation
2 , Item
1b
alleging a
willful, repeat, and
serious violation of 29 C.F.R. § 1910. 147 ( c ) (4)(i)
is
AFFIRMED
and a penalty of $ 41 , 734
is
ASSESSED ,
and

it is
FURTHER
ORDERED
in Docket No. 18-1212
that Citation
2 , Item
2 , alleging a
willful, repeat, and
serious violation of 29 C.F.R. § 1910. 178(1)(1)(i)
is
AFFIRMED
and a penalty of $ 44,342
is
ASSESSED . 110

SO
ORDERED.

/s/               

The
Honorable Dennis L. Phillips

U.S. OSHRC Judge

Date:    July 20, 2020

Washington, D.C.

"

1
Respondent’s Brief is styled as “Respondent’s Post-Trial Brief” (Resp’t Post-Trial Br.).

2
CSHO Calderon testified that there were either 10 or 14 employees at the worksite at the time of the OSHA inspection in 2018. (Tr. 63, 231, 235). At trial, Mr. Vavra testified that Respondent had fourteen employees. (Tr. 364). In its Post Trial Brief, Respondent asserted that it had fourteen employees. (Resp’t Post Trial Br., at 2, 26-27).

3
Moulders mold wood to smaller pieces. (Tr. 109).
It’s
Respondent’s main piece of equipment that actually makes the flooring. (Tr. 378). It surfaces all four sides of raw lumber and puts the tongue and groove on two sides. It essentially makes the raw lumber into flooring. (Tr. 419-20 , 439 ).

4
CSHO Calderon worked for OSHA for nine-and-a-half years. She has served as a CSHO for about four-and-a-half years. She has conducted about 170 OSHA safety inspections. (Tr. 46-47).

5
IH Maloney has worked at OSHA for more than 29 years. She has conducted over 1,500 OSHA inspections. She focuses on conducting health inspections, including performing noise and air sampling. (Tr. 174).

6
Mark Evans, CSHO Calderon’s supervisor, also accompanied CSHO Calderon and IH Maloney during the inspection on January 11, 2018. (Tr. 175).

7
Anthony Vavra supervises employees. (Tr. 325; Ex. 38, at 12). Herein, he is always referred to as Anthony Vavra.

8
Then Assistant Area Director (AAD) Jeff rey
Prebish
and
current AAD Evans also accompanied CSH O
Calderon during her
February 20, 2018
visit to Timberline. (Tr. 48 -49 ).

9
Dosimeters are the instruments OSHA uses to conduct noise sampling by calculating decibels and the dose percentage.

(Tr. 186; Exs. 39-41). They are also referred to as “pumps.”

(Tr. 186). Three photographs of Dosimeter serial number 012851 are at Exhibits 39-41. (Tr. 185-86, 190-91; Exs. 39-41).

10
For demonstrative purposes, three photographs of the calibrator serial number Dupont 012002 used by IH Maloney on January 11, 2018 are at Exhibits 42-45. (Tr. 192-93; Exs. 42-45).

11
IH Maloney used a sound level meter when conducting noise sampling to take instantaneous noised readings while an employee was working. (Tr. 194). Two photographs of a sound level meter serial number C339862 used by IH Maloney on January 11, 2018 are at Exhibits 46-47. (Tr. 194-96, 200; Exs. 46-47).
For demonstrative purposes, six photographs of the calibrator
serial number 0627849
used by IH Maloney on January 11, 2018
for the sound level meter are at exhibits 48-53. (Tr. 196-97 , 200 ; Exs. 48-53).

IH Maloney post-calibrated the sound level meter before she left the facility that day. (Tr. 201; Ex. 22 12 ,
at 1-3). At the end of the day on January 11, 2018, IH Maloney post-calibrated the dosimeters and recorded that data on her field notes. (Tr. 199-200; Ex. 22, at 1).

13
IH Maloney testified that she was certain that
all of
the equipment had been calibrated by the OSHA laboratory in Cincinnati within one year of the time she used them to sample noise in this case. (Tr. 210-11).

14 [redacted] was one of eight laborers who worked at the worksite. (Tr. 223-25; Ex. 23, at 1).

15
[redacted] worked at Timberline for eleven years where he operates the Maureen ripsaw that cuts boards into size. He has also operated the planer. (Tr. 102, 218, 464-66; Ex. 23, at 3). He was running an End Matcher on January 11, 2018. (Tr. 219, Ex. 23, at 3).

16
Mr.
[redacted]
was a supervisor and moulder and Cantek planer operator. He has worked in the wood business for 25 years, including 18-20 years at Timberline and THD. (Tr. 438-39, 456). He
is in charge of
everyone when Mr. Vavra is away from the facility. (Tr. 458).

17
Mr. [redacted] was a laborer and an upcut saw operator. (Tr. 103; Ex. 23, at 5).

18
Mr. [redacted] was a laborer who also chopped wood. (Ex. 23, at 7).

19 Mr.
[redacted]
was a laborer at the worksite, who also operated
powered industrial trucks (PIT) (also referred to as
f orklifts).
(Tr.
116-17, 337-38 ; Ex. 23, at
1 1).

20
CSHO Calderon saw Mr.
[redacted]
not wearing ear plugs that day. She saw that the other five employees were wearing ear plugs. (Tr. 224-26, Ex. 23). There is a sign at the back door to the workplace that says (in part) : “ CAUTION EAR PROTECTION REQUIRED”. (Tr. 231; Ex. 21, at 5).

21
IH Maloney explained that the “(66) DOSE % 80” on her field notes indicates that if the number in that column is greater than 66, then sampling is above the 80 percent threshold and a hearing conservation program is required. (Tr. 204-05 , 245-46 ; Ex. 22, at 2). The number in that column exceeded 66 for all six sampled employees, thereby requiring Respondent to have a hearing conservation program. (Tr. 205; ex. 22).

22
IH Maloney explained that she focused on the 80 percentage/85 decibels threshold because no employees were exposed above the 90 decibels threshold
due to the fact that
she only
noise
sampled
the six employees
for four and a half hours.

(Tr. 215 ; Ex. 22, at 2 ). She said employers are required to comply with additional hearing conservation requirements when employees are exposed at or above the 90 d BA
threshold. (Tr. 215). See
29 C.F.R. § 1910.95(j)(2).

23
Each Noise Survey Report also contains various information including the employee’s name, job title, number of employees doing the same work, time the dosimeter was placed on and off and
whether or not
the employee was using hearing protection. (Tr. 215-19; Ex. 23).

24
At the
trial , IH Maloney testified that she had transcribed the wrong dose amount (91.4) onto
[redacted] ’s Noise Survey Report. The calculation above uses the correct dose amount (69.9) for
[redacted] .

(Tr. 224; Ex. 22 ,
at
2, Ex. 23 , at
1).

25
Thomas Vavra and the six employees IH Maloney noise sampled on January 11, 2018 told IH Maloney that Respondent did not have a hearing conservation program. (Tr. 181-82, 277).
At trial, Mr. Vavra admitted that Respondent did not have anything in writing regarding a hearing conservation program. (Tr. 398).

26
The six employees IH Maloney noise sampled on January 11, 2018 told IH Maloney that they had not received a hearing test from Respondent. (Tr. 182; Ex. 23, at 3, 5, 7, 9).

27
The six employees IH Maloney noise sampled on January 11, 2018 told IH Maloney that they had not received any noise training by Respondent. (Tr. 182).

28
Thomas Vavra told IH Maloney that Respondent had not provided audio grams to its employees. (Tr. 184).

29
While Mr. Vavra testified that an owner of an adjacent business, Jennifer Reebel, drafted the abatement certification, he admitted that he read it before he signed it. (Tr. 343, 368-69; Ex s .
31, 34,
38, at 27-29, 51-52).

30
Thomas Vavra told IH Maloney that Respondent did not have a written hazard communication program. (Tr. 233).

31
Mr. [redacted] testified that the forklifts use propane. He has handled propane himself. He said that the tank on the forklift
has to
be replenished with propane about once a week. (Tr. 456-57). [redacted] said the tank on the forklift that runs on propane needed to be changed once every four days. (Tr. 478).

32
Thomas Vavra and Respondent’s employees told IH Maloney that Respondent did not have any safety data sheets for the workplace. (Tr. 236-37).

33
Thomas Vavra told IH Maloney that “he couldn’t provide me with any training information, didn’t recall ever doing it” and “employees told me [IH Maloney] that they had not been trained.” (Tr. 241).

34
The certification stated, in pertinent part:

List the
SPECIFIC
method of correction for
EACH
item on the citation and the date of correction
(emphasis in original) :
…

Citation # 01 Item # 002 a A
hazard communication program has been developed and implemented. Employees have been trained on program and applicable MSDS sheets.

Completion date: 4/23/12

Citation # 01 Item # 002 b A
MSDS binder has been supplied to employees and will be maintained and monitored as per our hazard communication program.

Completion date: 4/23/12

…

Endorsement

I certify that all violations on the subject citation have been corrected/abated and that the information provided is accurate.

Signature – Thomas A. Vavra

Date: 8/30/12

(Ex. 34).   

35
The
STIPULATED SETTLEMENT
stated in pertinent part:

3. Respondent affirmatively states that:

(a) All violations alleged in the citation(s) have been abated.

(Ex. 35, at 2).

36
CSHO Calderon found the door locked all four days she was at Respondent’s
mill;
i.e. January 9, 11, 19, 2018, and February 20, 2018. (Tr. 54).

37
CSHO Calderon measured the distance of Mr. [redacted]’s hand to the point of operation on the Whirlwind upcut saw. The guard did not completely cover the exposed area. (Tr. 70-73). CSHO Calderon testified that adequate guarding was commercially available for both upcut saws. (Tr. 74-75). Mr. Vavra testified that he was aware of larger saw guards being available but asserted that their use created more danger for the operator. (Tr. 380-83; Exs. 9, 19, at 14-17).

38
CSHO Calderon testified that a Cantek planer “parallels the wood.” (Tr. 78, 109). It takes an inch and an eight thick rough, hard lumber and planes it down to about 15/16 th
of an inch. (Tr. 419-20).

39
CSHO Calderon defined a “dead front” as “a cover to the circuit breaker box.” (Tr. 142).

40
Thomas Vavra told CSHO Calderon that Respondent did not have an energy control program. (Tr. 95). At trial, Mr. Vavra admitted that Respondent did not have any written procedures for any energy control program. (Tr. 331). In its Post-Trial Brief, Respondent argues that it had an unwritten “program” that had a limited number of trained employees authorized to perform maintenance on a machine. (Resp’t Post-Trial Br., at 9). The Court rejects this argument and finds Respondent did not have an energy control program of any kind, written or otherwise. It also did not have specific energy control procedures. (Tr. 95-98, 102-14, 157-58, 163-67, 171-72, 331, 334, 337, 386, 434; Exs. 9, 13-16, Ex. 18, at 1-2, ¶¶ 3-5, Ex. 38, at 34, 38-40). Messrs. Thomas
Vavra , Anthony
Vavra , [redacted], [redacted] and [redacted] all told CSHO Calderon Respondent did not have a procedure in place for when they were performing maintenance or servicing machines. (Tr. 157). They all told her they only turned off the machine at the power source. (Tr. 158, 163-64). At trial, Mr. Vavra denied that Respondent’s energy control procedures were simply turning the machines off. (Tr. 331-32). This testimony was contradicted at his deposition and at trial. At his October 23, 2019 Rule 30(b)(6) deposition, Mr. Vavra said that Respondent’s procedure for de-energizing its saws was “a simple task of just turning off. It’s
like a light switch. You just shut it off.” (Tr. 332-33; Ex. 38, at 39). He also admitted that there were no other energy control procedures in place other than turning the machine off. (Tr. 333; Ex. 38, at 40). At trial, Jeffrey Prebish, Area Director (AD) of the Syracuse area office, testified that Respondent was not only required to turn its machines off, but also required to verify that the machine is isolated by bleeding any stored energy from the system to prevent it from restarting. (Tr. 258-60).

41
Thomas Vavra told CSHO Calderon that Respondent’s employees had not been trained on lockout/tagout or energy control procedures. (Tr. 98). Messrs. [redacted], [redacted] and [redacted] told CSHO Calderon that they had not been trained on lockout/tagout or energy control. (Tr. 103-04). At trial, Mr. Vavra testified that Respondent “don’t have training on lockout/tagout.” (Tr. 434). The Court finds that Respondent’s assertion in its responses to Interrogatory No. 12a and 13a that Messrs. [redacted] and [redacted] had been trained in lockout/tagout procedures to be without adequate basis. (Tr. 432-34; Ex. 19, at 10-11).

42
Thomas Vavra told CSHO Calderon that Respondent had not performed any periodic inspections of its machines for lockout/tagout purposes. (Tr. 104).

43
While admitting Respondent had no written procedures, Mr. Vavra further said when he personally serviced the planer he de-energized it by turning the power off by pressing three buttons, depressing the emergency stop, and turning off the breaker at a panel. He said that only he, Anthony Vavra and Mr. [redacted] service the planer. Mr. Vavra said it was possible, but highly unlikely, for someone to turn on the power to the planer while it was being serviced. (Tr. 386-95). Mr. [redacted] testified that when servicing the moulder he de-energized it by pressing six buttons on the control panel and then hitting the emergency stop button and lifting the lid. (Tr. 449). Mr. [redacted] said he did not use lockout/tagout procedures on the moulder. (Tr. 451-52).

44 The citation was addressed to Thomas Vavra, Treasurer. (Ex. 29, at 1). The citation stated:

29 CFR 1910.147(c)(1): The employer did not establish a program consisting of an energy control

procedure, employee training and periodic inspections to ensure that before any employee performed any servicing or maintenance on a machine or equipment where the unexpected energizing, startup or release of stored energy could occur and cause injury, the machine or equipment would be isolated from the energy source and rendered inoperative:

a) At establishment, on or about 4/10/12: Where employees perform servicing and/or maintenance on various machinery and equipment, including, but not limited to moulder, grinder, end match machine, saws, dust collection system, etc., the employer had not established a lockout/tagout program which includes written energy control procedures, employee training and periodic inspections, to prevent the unexpected energizing, start up or release of stored energy of the equipment.

Abatement certification must be submitted for this item.

Date by which Violation must be abated: 07/12/2012

(Ex. 29, at 3).

45
The certification stated, in pertinent part:

List the
SPECIFIC
method of correction for
EACH
item on the citation and the date of correction
(emphasis in original) :
…

Citation # 01 Item # 003 An energy control program with a lock out tag out procedure has been developed and implemented. It’s
inclusive of procedures, training and inspections.

Completion date: 4/24/12

…

Endorsement

I certify that all violations on the subject citation have been corrected/abated and that the information provided is accurate.

Signature – Thomas A. Vavra

Date: 8/30/12

(Ex. 31).   

46
AD Prebish testified that this representation was false. (Tr. 265 , 291 ).

47
The
STIPULATED SETTLEMENT
stated in pertinent part:

3. Respondent affirmatively states that:

(a) All violations alleged in the citation(s) have been abated.

(Ex. 32, at 2).

48
Respondent agrees it did not document any such procedures but argues “that amounts to no more than a technical rule violation.” (Resp’t Post-Trial Br., at 10). The cited standard requires procedures to be “developed,
documented
and utilized for the control of potentially hazardous energy when employees were engaged in activities covered by this section.” (emphasis added). The Court finds that all of the elements to the “Exception” to documenting found in the NOTE to 29 CFR § 1910.147(c)(4)(i) did not exist; e.g. (1) where energy has not been completely dissipated, and (2), as the machines had multiple energy sources. The exception does not apply here. (Tr. 107-13, 154-56, 164-67, 171-72; Sec’y Post Hrg. Br., at 5-6). The Court further finds Respondent violated the cited standard by not developing, documenting and utilizing
procedures to control potentially hazardous energy for its Cantek planer,
Maureen ripsaw, the
[ LMC
630]
moulder, and the Whirlwind and Northtech upcut saws
on January 11 and 18, 2018.

49
AD Prebish testified that to deenergize the electric source a company generally shuts the machine off at either the breaker or motor control center. He said to deenergize an air source a company shuts “off the valve and then bleed the air that’s remaining in the line between the switch or the valve and the machinery.” AD Prebish said these procedures were not taken at Timberline. (Tr. 259-60).

50
At trial, [redacted] denied telling CSHO Calderon that he changed saw blades six times a week. (Tr. 469). He also said when servicing the ripsaw he pressed the emergency stop button to stop the ripsaw, shut off the main breaker five feet away, and put a sleeve over the end of the shaft to stop it from turning. (Tr. 469-73). When changing fuses, he also opens the door to the main fuse box which also stops the machine from being turned on. (Tr. 473). He agreed that a tag could be used to lock down the power switches but that would not be good because the switches are five feet away from him. He said no one could get to the main breaker because he would be standing next to it when changing blades. (Tr. 475-76).

51
Respondent concedes its forklift operators “have not undergone formal safety training ”, but
argues the forklifts “are only used on a very limited basis each day.” (Resp’t Post-Trial Br., at 10). Respondent’s argument is rejected because the use of a forklift by an untrained operator for even a limited basis each day is still a violation of the cited standard.

52
Mr.
[redacted]
told CSHO Calderon that he had been provided forklift “training at a previous employer, eight years prior.” (Tr. 159).

53
The certification stated, in pertinent part:

List the
SPECIFIC
method of correction for
EACH
item on the citation and the date of correction
(emphasis in original) :
…

Citation # 01 Item #
004 A
forklift training program has been developed and implemented. It’s
inclusive of training with a written and driving exam.

Completion date: 4/23/12

…

Endorsement

I certify that all vi o lations on the subject citation have been corrected/abated and that the information provided is accurate.

Signature – Thomas A. Vavra

Date: 8/30/12

(Ex. 31).

54
Mr. [redacted] testified:

Q So
I’ll
ask again. Does lockout/tagout procedure offer any more safety to keeping the machine powered off when
you’re
working on it?

A No.

Q And
why is that?

A It’d
be more of a process. I mean we
wouldn’t
be getting nothing accomplished in a day. As many times
I’ve
switched the sizes on that machine a day, I mean, lockout/tagout you wouldn’t make any money.

(Tr. 453).

55
Mr.
[redacted]
testified that his prior employer required employees to have hearing tests. (Tr. 461).

56
CSHO Calderon took a photograph of Mr.
[redacted]
wearing ear buds. (Tr. 228-29; Ex. 21, at 2).

57
Mr. Vavra testified that to his knowledge all employees had hearing protection and they all use it except when equipment is not running in the mill. (Tr. 399-400).

58
AD Prebish worked at OSHA for twelve years. At the time of the OSHA 2018 inspection he was serving as the AAD for the Syracuse area office and had served as the AAD for seven years. Before that, he was a CSHO for four years. (Tr. 255-57).

59
In its Post-Trial Brief, Respondent admits “Timberline’s program did not fully comply with the statute,” and “[w]hile Timberline violated the regulation by failing to have mandatory testing procedures in place, the violation was not willful.” (Resp’t Post-Trial Br., at 18).

60
The certification stated, in pertinent part:

List the
SPECIFIC
method of correction for
EACH
item on the citation and the date of correction
(emphasis in original) :
…

Citation # 01 Item # 001 a A
hearing conservation program has been developed and implemented. The program addresses monitoring, hear[sic] protection devices, employee education,
training
and recordkeeping. Completion date: 4/22/12

Citation # 01 Item # 001 b Pursuant
to the above mentioned hearing conservation program subsection hearing protection devices we have addressed the basic requirements with two device options, attenuation and employee training.

Completion date: 4/2 0 /12

…

Endorsement

I certify that all vi o lations on the subject citation have been corrected/abated and that the information provided is accurate.

Signature – Thomas A. Vavra

Date: 8/30/12

(Tr. 275-76; Ex. 34).   

61
At trial, Mr. Vavra testified that he felt as though THD had abated the 2012 violations. (Tr. 369).   

62
At trial, Mr. Vavra testified:

Q So the representation here that employees that the program addresses training is not true?

A Correct. I did not train them to put their earplugs in correctly.

At his October 23, 2019 Rule 30(b)(6) deposition, Mr. Vavra also stated:

Q Starting at Line 12, I asked you : “ Did you train them on exposure to noise?”

Answer : “ No.”

(Tr. 350; Ex. 38, at 53).

63
Messrs. [redacted], [redacted], and
[redacted]
testified that they never had an audiogram or hearing test while employed by Respondent. (Tr. 460, 477, 502).

64
The
STIPULATED SETTLEMENT
stated in pertinent part:

3. Respondent affirmatively states that:

(a) All violations alleged in the citation(s) have been abated.

(Ex. 35, at 1).

65
In 2018, the maximum penalty for a willful or repeat violation was $129,336.

29 C.F.R. §§ 1903.15(d)(1) and (d)(2) (2018).

66
The penalty reduction provisions contained in OSHA’s F OM
that were in effect in 2018 are the same as in the current version of the FOM which is available online at

https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-163.pdf .

67
TC Bed Lube is used on Respondent’s moulder. A dispenser emits it onto bed plates while the moulder is running to ensure that the wood runs through the moulder smoothly. (Tr. 402-03).

68
At trial, Mr. Vavra admitted that Respondent’s employees had not received any training on hazardous chemicals and materials. (Tr. 352-56).

69
In its Post-Trial Brief, Respondent admits “Timberline’s actions violated the regulation” alleged in Citation 1, Item 2a, but argues the violation was not willful. (Resp’t Post-Trial Br., at 18-19).

70
As noted by Respondent in its Post-Trial Brief, wood dust was not identified as a hazardous chemical in the 2012 Citation 1, Items 2a-2c. (Ex. 33, at 3-4; Resp’t Post Trial Br., at 12). Consequently, Respondent argues that on January 11, 2018 it was not aware that wood dust was considered a hazardous chemical. (Resp’t Post Trial Br., at 12). AD Prebish testified that the classification of wood dust “has been changed from just wood dust to nuisance to a carcinogen in the last 10 years.” He further said that this “information would’ve been readily available to somebody who works in” woodworking. (Tr. 306-07). At trial, Mr. Vavra testified that he never heard that wood dust was considered a hazardous chemical. (Tr. 400). He admitted that Respondent did not have any safety data sheets for wood dust in January 2018. (Tr. 352-56, 401; Ex. 38, at 56). [redacted] testified that he knew that wood dust was a hazardous chemical because he had been working wood for years. (Tr. 477-78).

71
See Jeanette M. Gould, d/b/a Gould Publ ’ ns,
No. 89-2033, 1992 WL 675228, at *3 (O.S.H.R.C.A.L.J., Aug. 24, 1992) (doors locked by deadbolts make “emergency egress difficult at best.”),
aff’d in relevant par t,
No. 89-2033, 1994 WL 382497 (O.S.H.R.C., July 19, 1994).

72
Mr. [redacted] testified:

Q Any
special knowledge?

A Slide
the bar to the side. It’s
the only knowledge you need.

(Tr. 445).

73
No keys or tools were required to open the door. (Tr. 374 , 445, 468 ).

74
See
Am. Recycling & Mfg. Co., Inc.,
No. 13-1101, 2015 WL 6438288, at 15 (O.S.H.R.C.A.L.J., Sept. 14, 2015) (consolidated) (
Serious violation of 29 C.F.R. § 1910.36(d)(1) found where exit door missing handle and did not open),
irrelevant citation vacated ,
676 F.App’x. 65, 72 (2 nd
Cir. 2017);
Unifirst Corp ., No. 12-1304, 2014 WL 6722567, at 4-5 (O.S.H.R.C.A.L.J., Oct. 17, 2014) (Serious violation of 29 C.F.R. § 1910.36(d)(1) found where exit door locked.).

75
See Jeanette M. Gould, d/b/a Gould Publ ’ns , 1994 WL 382497, at *2 (violation is serious “based on the compliance officer’s unrebutted testimony that death or serious physical harm could result from delays in exiting during an emergency due to the locked door.”).

76
Respondent did not receive a reduction for good faith or any adjustments for history in any of the citation items issued in
Docket Nos. 18-1211 and 18-1212 . (Tr. 58, 267-68).

77
Citation 1, Item
3
and the Complaint were amended to allege that the violation occurred on or about January 19, 2018. (Tr. 12).

78
Respondent concedes that “[t]here is an exit sign above the exit door described in Citation 1, Item 2 that was not illuminated during the investigation conducted by OSHA.” (Resp’t Post-Trial Br., at 6).

79
CSHO Calderon explained that incipient stage firefighting refers to small fires. (Tr. 130).

80
Messrs . [redacted] and [redacted] also admitted that Respondent had not provided any training on how to operate a fire extinguisher. (Tr. 446, 468).

81 Mr.
Vavra testified
that he “talked to all employees, and they all feel comfortable on how to use them [fire extinguishers] if they, if they so, if they deem it necessary to.” (Tr. 376-77). This broad sweeping assertion is without foundation and is given little weight by the Court.

82 See Jake’s Fireworks, Inc ., No. 15-0260, 2017 WL 2501140, at *15 (O.S.H.R.C.A.L.J., Apr. 24, 2017) (Violation of 29 C.F.R. § 1910.212(a)(1) serious where lack of any fire extinguisher education training could cause serious injury, up to and including death.),
aff’d ,
893 F.3d 1248 (10 th
Cir. 2018).

83
Respondent asserts that the “saw blade guard has never been removed or modified so long as the saw was in the building.” (Tr. 377-78; Resp’t Post Trial Br., at 7). This assertion is rejected as without credible basis. Respondent points to testimony by Messrs.
Vavra , [redacted] and
[redacted]
in support of its assertion. Mr. Varna testified that “[f]rom the time that I purchased them those guards have been on those machines.” (Tr. 377-78). Mr. Varna was a co-owner at not an upcut saw operator. Mr. [redacted] testified that he “don’t normally work on them [Whirlwind and Northtech upcut saws].” (Tr. 446). Mr.
[redacted]
was not working at Timberline in January or February 2018. (Tr. 495-96). Based upon the Court’s observation of her courtroom demeanor when testifying, the Court finds CSHO Calderon’s testimony that there were no machine guards on the Whirlwind and Northtech upcut saws on January 11, 2018 to be entirely credible and based upon her personal observations.

84
Citation 1, Item
6
and the Complaint were amended to allege that the violation occurred on or about January 19, 2018. (Tr. 12; Court Order dated November 13, 2019).

85
CSHO Calderon testified that a Cantek planer “parallels the wood.” (Tr. 78).

86
Mr. Vavra testified that Respondent did not have a gauge or any way of testing the pressure on an air gun. He said he purchased the air guns from NAPA and assumed they were OSHA compliant. (Tr. 384, 429-30).

87
Thomas Vavra testified he did not remove any diffusers or tell the OSHA investigator that he had removed some. (Tr. 383-84). Based upon the Court’s observation of her courtroom demeanor when testifying, the Court finds that CSHO Calderon’s testimony that Mr. Vavra told her that reducers were no longer being used on compressed air guns at Timberline to be credible.

88
In its Post-Trial Brief, Respondent admits “Timberline violated the regulation, but the violation was Other Than Serious.” (Resp’t Post-Trial Br., at 15, ¶ 23).

89
Citation 1, Item 8a and the Complaint were amended to allege that the violation occurred on or about January 11 and 19, 2018. (Tr. 13; Order dated November 13, 2019).

90
In its Response to Complainant’s First Set of Interrogatories, Respondent asserted
an employee had left the door open and
“ [ i]t was unknown to Respondent that the circuit breaker door was open and therefore infeasible for the Respondent to close the door immediately.” (Ex. 19, at 8-9, ¶ 10a). This was not a one-time failing. The door was open
on a daily basis
and the exposed electrical parts were in plain view. (Tr.
84,
87, 91, 142, 161-62; Ex. 12).

91 Citation 1, Item 8b and the Complaint were amended to allege that the violation occurred on or about
January
11
and 19, 2018.

(Tr. 13 ; Order dated November 13, 2019 ).

92
In its Response to Complainant’s First Set of Interrogatories, Respondent asserted
an employee had left the circuit breaker door open and
“ [ i]t was unknown to Respondent that the circuit breaker door was open and therefore infeasible for the Respondent to close the door immediately.” (Ex. 19, at 9, ¶ 11a). This was not a one-time failing. The
condition occurred
on a daily basis
and the
uncovered conduit box
w as
in plain view. (Tr.
93-94 ; Ex. 1 1 ).

93
In its Post-Trial Brief, Respondent admits Timberline violated Citation 1, Items 8a and 8b, but asserts that the violations were “Other Than Serious.” (Resp’t Post-Trial Br., at 16, ¶¶ 30, 32).

94
OSHA’s Directive CPL 02-00-147 can be found online at: https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-147.pdf

95
Citation 2, Item 1a and the Complaint were amended to allege that the violation occurred on or about January 11 and 19, 2018. (Tr. 13; Order dated November 13, 2019).

96
At trial, Respondent appeared to argue that it did not violate § 1910.147(c)(1) because the term “lockout/tagout” is not mentioned in that standard. Mr. Vavra freely admits that he had no lockout/tagout program or procedures. (Tr. 337). Respondent’s argument is meritless. The title of 29 C.F.R. § 1910.147 is “The control of hazardous energy ( lockout/tagout ).” Further, 29 C.F.R. §§ 1910.147(c)(2)(i) and (ii) provide that an employer’s energy control program under § 1910.147(c)(1) shall utilize lockout and/or tagout to control hazardous energy.

97
Messrs.
[redacted]
and
[redacted]
testified that they followed a series of steps to deenergize the moulder, rip saw/ripper and the planer. (Tr.
432-33,
464; Ex. 39-40). Their testimony on this issue is not credible because it contradicts Respondent’s discovery responses, statements made to OSHA by Respondent’s employees, the testimony of Respondent’s owner and manager, and the fact that locks and tags were available on site but were never opened. In any event, neither employee claimed that he
actually used
any lockout/tagout equipment during these alleged steps. (Tr. 451-52). Furthermore, the moulder, rip saw/ripper and the planer are all powered both by electricity and air. (Tr. 105-07, 110-13, 165-66, 460, 481-82). Under 29 C.F.R. § 1910.147(d)(5)(i), all potentially hazardous stored or residual energy must be relieved, disconnected, restrained, and otherwise rendered safe. Even assuming
arguendo
that there is any veracity to the procedures described by
Messrs. [redacted]
and
[redacted] , there is no evidence that any measures were taken to ensure that the air powering all the machines was isolated and/or rendered safe.

(Tr. 166-67, 171-72, 259 -60 ). Further, energy control procedures were
not
developed or utilized for the two upcut saws.

[redacted]
operated the
Northtech
and Whirlwind saws at Timberline and THD for thirteen years. (Tr. 495). Mr.
[redacted]
testified that he did not work for Respondent from September 2017 through March 2018. (Tr. 500-01). Because Mr.
[redacted]
was not employed by Respondent when the onsite inspection was conducted in January and February 2018, his testimony regarding conditions at the workplace and procedures followed during that
period of time
are
given no weight. (Tr. 501-02).

98
Citation 2, Item 1b and the Complaint were amended to allege that the violation occurred on or about January 11 and 19, 2018. (Tr. 13; Order dated November 13, 2019).

99
At trial, Mr. Vavra testified:

Q
Isn’t
[it] true that no lockout/tagout procedures were implemented after the 2012 citation?

A Not the lockout/tagout, specifically, no.

(Tr. 337).

100
Citation 2, Items 1a and 1b and the Complaint were amended to reflect that the classifications for the violations were also Repeat. (Tr. 13).

101
In its Post-Trial Brief, Respondent admits as to Citation 2, Item 1a that “Timberline violated the regulation by failing to document its procedures. However, the violation was Other Than Serious….” (Resp’t Post-Trial Br., at 17, ¶ 38). As to Citation 2, Item 1b, Respondent also admits “While Timberline violated the regulation, the violation was Other Than Serious….” (Resp’t Post-Trial Br., at 17, ¶ 41).

102
In 2018, the maximum penalty for a willful or repeat violation was $129,336.

29 C.F.R. §§ 1903.15(d)(1) and (d)(2) (2018).

103
AD Prebish testified that this representation was false. (Tr. 2 70-71 ).

104
Citation 2, Item
2
and the Complaint were amended to reflect that the classification for the violation was also Repeat. (Tr. 13).

105
In its Post-Trial Brief, Respondent admits “Timberline violated the regulation, but the violation was Other Than Serious….” (Resp’t Post-Trial Br., at 18, ¶ 46).

106
In its Answer in Docket No. 18-1212, Respondent stated its Third Affirmative Defense of unpreventable employee misconduct applied to “all or some of the citations.” In its Response to Complainant’s First Set of Interrogatories in Docket No. 18-1212, Respondent asserted that its unpreventable employee misconduct defense specifically applied to Citation 1, Items 8a, 8b, and Citation 2, Items 1a, 1b. (Ex. 19, at 19, ¶ 24). However, its related discovery responses only applied to Citation 1, Items 8a, 8b. (Ex. 19, at 19-21). Respondent has abandoned
any unpreventable employee misconduct
defense as to Citation
2 , Items
1a, 1b , in Docket No. 18-1212 by failing to
provide responsive discovery responses,
raise it at trial and
address it in
its Post-Trial Brief.

(Ex. 19, at 15-19).

107
In its Answer in Docket No. 18-1212, Respondent stated its Second Affirmative Defense of infeasibility applied to “all or some of the citations.” In its Response to Complainant’s First Set of Interrogatories in Docket No. 18-1212, Respondent asserted that its infeasibility/impossibility defense specifically applied to Citation 1, Items
2-3
and Item 5. (Ex. 19, at 14, ¶ 18). However, its related discovery responses only applied to Citation 1, Item 5. (Ex. 19, at 15-19). Respondent
has abandoned
any infeasibility/impossibility
affirmative defense as to Citation 1, Items 2-3, in Docket No. 18-1212 by failing to
provide responsive discovery responses,
raise it at trial and
address it in
its Post-Trial Brief.

(Ex. 19, at 15-19).

108
In discovery,
Complainant asked
Respondent
t o produce documents and information to support this affirmative defense . Complainant says
nothing was provided .

(Ex. 18 , at 2-3,
¶¶ 12 - 13, Ex. 19 , at
6, ¶ 7c,
14-19, Ex. 28 , at 3,
¶¶ 13 - 14 ; Sec’y Post-Hrg. Br., at 74 ).
In its Response to Complainant’s First Set of Interrogatories, Respondent stated “any further guarding than is currently in place would render the saw useless or inefficient, thus making additional guards infeasible.” (Ex. 19, at 6, ¶ 7a).

109
Whether the employer should be considered a small employer for penalty purposes was an issue in dispute in
J.C. Stucco and Stone . In
J.C. Stucco and Stone,
the employer had a small number of employees, but the Secretary took the position that any penalty reduction based on small employer size was inappropriate due to the extensive violation history and bad faith of that employer. However, the court found the returns could be relevant to size finding that: “I n assessing the size factor here, the Court has relied primarily on the evidence regarding the number of employees and viewed the financial information as relevant to the extent that it supported Respondent’s [ J.C. Stucco and Stone ]
claim that it was a small employer.”
J.C. Stucco and Stone, Inc. , 2016 WL 7363932, at *8.

110
A total penalty of $16 6 , 265
is assessed for
all of
the violations affirmed by this Court in Docket Nos. 18-1211 and 18-1212.