FabArc Steel Supply, Inc.

Plain-English summary

FabArc Steel Supply manufactured fabricated steel products at its Oxford, Alabama facility. OSHA cited the company after an inspection found issues involving fall-protection training, hazardous-energy controls during motor removal, and a forklift operated with a broken horn and fluid leaks. The judge vacated the fall-protection training item because a newer, more specific fall-protection standard applied to the alleged condition. The judge affirmed the lockout/tagout item because employees did not use the company's energy-control procedures and did not lock either available disconnect while removing a 480-volt motor. The forklift item was also affirmed because the truck remained in service despite documented defects. The judge assessed penalties of $8,500 and $5,600, for a total of $14,100.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(f)(1)(iv); 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.178(p)(1)
• Outcome: The fall-protection training item was vacated; the lockout/tagout and forklift items were affirmed with $14,100 in total penalties.
• Key point: The employer's written energy-control procedure did not satisfy the standard when employees failed to use it and left the equipment unlocked during servicing.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9 th
Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant

v.

OSHRC Docket No.:
18-1859

FabArc
Steel Supply, Inc.,

Respondent.

Appearances:

Christian P. Barber, Esq.

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

For Complainant

Charity Parris, Environmental Health & Safety Director

FabArc
Steel Supply, Inc., Oxford, Alabama

For Respondent

BEFORE: Administrative Law Judge
Sharon D. Calhoun

DECISION AND ORDER

FabArc
Steel Supply, Inc.
(FabArc)
is engaged in the business of manufacturing fabricated steel products
for steel erection. On
October 11, 2018, Occupational Safety and Health Administration (OSHA) Compliance Safety and Health Officer (CSHO)
Lynne Bollinger
conducted an inspection of
FabArc’s
facility
located
at
111 Meadow Lane, Oxford, Alabama. As a result of OSHA’s inspection, the Secretary issued a Citation and Notification of Penalty (Citation) to
FabArc
on
November 5, 2018,
alleging
three
serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act).

Item 1 alleges a
serious violation of 29
C.F.R. §
1910.132(f)(1)(iv) for not training employees regarding
fall protection
personal protective equipment limitations. The Secretary proposes a penalty of $7,853
for this item.

Item 2 alleges a serious violation of
29 C.F.R. §
1910.147(c)(4)(i)
for not utilizing lockout/tagout procedures to control potentially hazardous energy when removing the motor for the East
Blastec.
The Secretary proposes a penalty of $9,523 for this item.

Item 3 alleges a serious violation of 29 C.F.R. §
1910.178(p)(1)
for not
taking
a forklift out of service until it
repaired its malfunctioning
horn and
an oil
leak. The Secretary proposes a penalty of $
6,282
for this item.

JURISDICTION AND COVERAGE

FabArc
timely contested the Citation. Thereafter, this case was designated for Simplified Proceedings under Subpart M, § 2200.203(a), of the Commission Rules of Procedure. 1 The Court held a hearing in this matter on April 24, 2019, in Anniston, Alabama. Both parties filed post-hearing briefs on June 3, 2019. The parties
stipulated jurisdiction of this action is conferred upon the Commission pursuant to
§10(c) of the Act
(Exh. J-1, ¶1). FabArc
also
admits
that at all times
relevant to this action
it was an employer engaged in a business affecting interstate commerce within the meaning of
§
3(5) of the Act, 29 U.S.C. § 652(5) (Tr.
13-14;
Exh. J-1, ¶2). Based on the stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and
FabArc
is a covered employer under § 3(5) of the Act.

For the reasons that
follow, the Court
VACATES
Item 1 , and
AFFIRMS
Item s
2 and 3 of the Citation and
a ssesses penalt ies
in the
amount
of
$8,500 for
I tem 2 and $5,600 for
I tem 3 .

BACKGROUND

FabArc
engages
in the business of manufacturing fabricated steel products
for steel erection (Tr. 58). It employs an average of 300
employees
at its Oxford, Alabama,
facility
(Tr.
58;
Exh.
J-1 ¶4). OSHA initiated an inspection of
the
facility following
FabArc’s
report to OSHA on October 4, 2018, of an accident at the facility resulting in an employee’s finger being amputated. The employee was in the process of loading
onto a golf cart
the motor of the
Blastec 2
machine at issue in this proceeding when
the motor flipped
while
the employee’s hands were inside of the strap
holding the machine
(Tr.
26,
58-59). CSHO Bollinger 3
initiated an inspection
of the facility on October 11, 2018, by
meeting with a representative of the company to explain why she was there. She
conducted
an opening conference, inspected
the
location of the accident,
interviewed
employees, inspected the fall protection equipment,
and
reviewed the lockout/tagout procedures and the forklift
inspection records
(Tr.
45,
59-60,
75,
80, 85;
Exh. J-1 ¶6).

CSHO Bollinger found no violations relating to
the accident.
However,
she
found
alleged
violations of the fall protection,
lockout/tagout,
and powered industrial trucks
standards. 4 Those alleged violations are
at issue
here.

The evidence regarding the
violations found by CSHO Bollinger reveals that at 4 a.m. on the day of the accident,
maintenance
employee

1,

who described himself as
leadman,
received a note left by
the
night shift that an electric motor in the baghouse 5
was no longer working
(Tr. 26-27, 28).

Because the motor was not working it
caused problems with the shop blaster. The motor
was
removed
on the day of the accident
and was
subsequently
replaced with a new
one
(Tr. 59-61;
Exhs. J-2 - J-6). The
malfunctioning
motor was located at the top of the
Blastec
machine, at a height of approximately 18
feet (Tr. 29, 62, 64;
Exhs. J-2, J-4; J-6). In order to access the motor, employees used a manlift (Tr. 30, 31;
Exhs. J-1 ¶15,
J-7).

Removing the motor was
maintenance employee #1’s first assignment for the day. He did not communicate this assignment to his supervisor before starting it because his supervisor does not arrive until 7
a.m.
(Tr. 28, 43). Maintenance employee #1
testified maintenance get
to the facility early to get the shop ready for the day shift (Tr. 28, 48). Therefore,
he
and another employee
(maintenance employee #2)
initiated the assignment by putting on their harnesses and taking the manlift to the top of the
Blastec
machine. Both employees were tied off
to the
basket of the
manlift as they rode up (Tr.
31, 35, 43;
Exh. J-1 ¶12). Maintenance
employee

2

remained
tied off
in the manlift
and was there as a “buddy”
to observe in case anything went wrong (Tr.
38, 44).
Maintenance employee #1
testified the manlift
was
situated
to the left of the baghouse, without a gap between it and the baghouse
and
was
not
moved
until he came off the top of the
baghouse 6
(Tr. 39, 40, 45).

Once on top of the baghouse,
maintenance employee #1
detached his fall protection from the manlift, exited and connected his
lanyard
to an
eyebolt
located
on the top of the baghouse at foot
level
(Tr.
33;
Exhs. J-1 ¶13. J-12). His
usual practice
was
to tie off to the eyebolt
because there was no other place to tie off to (Tr. 35). Although
maintenance employee #1
had been on top of other baghouses in the facility to work on motors, this was the first time he
had
been on top of the instant
Blastec
machine in the seven years since it had been installed 7
(Tr. 34, 51).

Maintenance employee #1 testified he had received fall protection training and had previously seen
FabArc’s
lockout/tagout procedures (Tr. 40, 49;
Exh. J-16).

While on top
of the baghouse,
maintenance employee #1
determined the motor had power, so
he
turned off
the power at
the
isolation switch
he
located to the left of the blaster, which he testified killed all the power to the motor (Tr.
28-29, 31, 41;
Exh
J-10). The circuit feeding the motor was rated
at
480
volts (Tr. 36, 69). After disconnecting the power, he
verified the circuit was no
longer
energized by using a voltmeter (Tr. 36, 47). According to
maintenance employee #1
the circuit could not be re-energized because he was the only one who could get to the isolation switch (Tr. 36, 46).
He
could not
lock out the machine
at the main
disconnect
because its locking mechanism was broken
(Tr. 29,
41). A replacement for the locking mechanism had been ordered but had not yet arrived (Tr. 42).

Once
the power was
turned off at
the isolation switch, unhooked the wires, put straps around the motor
and pulled
it
out of the top
with an overhead
crane
(Tr. 29, 37,
38-39).
The crane took the motor to the center of the bay and then south to a golf cart
where it was to be
lowered (Tr. 39).

CSHO Bollinger recommended the issuance of a citation for a violation of 29 C.F.R. § 1910.132(f)(1)(iv) because
maintenance
employee

1

was
exposed to
a fall hazard greater than four foot
and he
and the safety director did not demonstrate an understanding
of the fall protection limitations when they told her anchoring the lanyard at feet
level
was safe
(Tr. 65, 83). FabArc
provided no fall protection training records during the inspection (Tr. 65).

CSHO Bollinger recommended the issuance of a citation for a violation of
29 C.F.R.
§
1910.147(c)(4)(i)
because,
although
FabArc
had lockout/tagout procedures, they were not followed on the day of the accident
in that
employees could not attach a lock to the disconnect which was broken (Tr. 68-69;
Exhs. J-10, J-16). CSHO Bollinger further testified that no locks were on the isolation switch
to ensure it was not
reenergized. Since two employees were working on the assignment, two locks should have been placed on the isolation switch
to prevent unexpected energization
(Tr. 70-72;
Exh. J-10).

CSHO Bollinger
also
recommended issuance of a citation for violation of 29 C.F.R.
§
1910.178(p)(1)
based on her
review of the inspection records for the forklift
which
revealed
it had been used since February
without a working horn,
and had been used at times when it was leaking or having problems with the brakes (Tr. 75-76).

The forklift was equipped with a yellow strobe light which CSHO Bollinger testified was a warning device on forklifts equipped with them (Tr. 86-87;
Exh. J-1 ¶7).

Based on CSHO Bollinger’s inspection of
the facility,
OSHA issued the Citation
at issue in this case to
FabArc
on November 5, 2018.

STIPULATIONS

The parties submitted
the following stipulations as
a joint exhibit:

1. Jurisdiction of this action is conferred upon the Commission pursuant to Section 10 (c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651
   et. seq. , hereinafter the Act, 19 U.S.C. § 659(c).

2. At all times relevant to this action, Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. § 651(5).

3. On the date of the alleged violations, Respondent had a place of employment at 111 Meadow Lane, Oxford, Alabama (the worksite), where it engaged in the business of manufacturing fabricated steel products.

4. Respondent employs an average of 300 employees at its Oxford, Alabama, facility.

5. On October 4, 2018, an accident occurred at the worksite. On that date, Charity Parris, Respondent’s Enforcement, Health & Safety Director, reported the accident to the Occupational Safety and Health Administration (OSHA).

6. OSHA Compliance Safety and Health Officer Lynn Bollinger, an authorized representative of Complainant, conducted an opening conference on October 11, 2018, and conducted the inspection of the worksite, Inspection No. 1352763.

7. As a result of the inspection, Complainant issued to Respondent a Citation and Notification of Penalty pursuant to Section 9(a) of the Act, 29 U.S.C. § 658(a).

8. The Citation and Notification of Penalty identifies and describes the specific violations alleged, the corresponding abatement dates, and the penalties proposed.

9. On or about November 15, 2018, by a document of the same date, Complainant received notification, pursuant to Section 10(c) of the Act, 29 U.S.C. § 659(c), of Respondent’s intention to contest the aforesaid Citation and Notification of Penalty.

10. On October 4, 2018, in the facility’s East Shop Detail Bay, two maintenance employees,
    [maintenance employee #1]
    and
    [maintenance employee #2], were directed to troubleshoot the dust-collector vacuum system for a
    Blastec
    shot blasting machine.

11. The employees used a boom lift to reach the top of the dust collector, where the
    motor controlling the vacuum system was located.

12. Both employees used personal fall protection harnesses attached
    to the boom lift.

13. Once at the top of the dust collector, in order to remove the motor
    [maintenance employee #1]
    exited the boom lift and stood on top of the dust collector, unclipping his harness from the boom lift and clipping it to a lifting eye on the corner of the dust collector at foot level. There was no other location to which he could
    attach, other than lifting eyes at foot level.

14. At some point before October 4, 2018, the main disconnect handle for the
    Blastec
    machine broke and a lock could not be applied to it.

15. Before performing work to troubleshoot and remove the dust-collector vacuum system’s motor on October 4, the employees turned off a power isolating “light switch” that was located at least 20 feet above the floor, several feet from the motor, and accessible only to persons on top of the dust collector near the motor. No lock was used, contrary to Respondent’s machine-specific lockout procedures.

16. Inspection records for the forklift truck used in the area of the dust collector documented that the forklift had been operated without a working horn for at least four
    months, and
    had been leaking fluid for two weeks.

17. The forklift’s backup alarm was operational, as was a strobe light that activated when the machine was put into gear.

( Exh . J-1.)

THE CITATION

The Secretary 's Burden of Proof

To establish a violation, “the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) there was a failure to comply with the cited standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence.”
Astra Pharma. Prods ., No. 78-6247, 1981 WL 18810, at *4 (OSHRC July
30, 1981),
aff’d in relevant part , 681 F.2d 169 (1st Cir. 1982).

Item 1: Alleged Serious Violation of §
1910.132(f)(1)(iv)

Alleged Violation Description

Item 1 alleges:

On or about October 11, 2018- East Shop Detail Bay, employees were exposed to fall hazards when not being aware that anchoring a harness/lanyard to an eyebolt located at foot level would permit a free fall greater than six feet.

Section
1910.132(f)(1)(iv)

Section
1910.132(f)(1)(iv)
provides:

Training. (1) The employer shall provide training to each employee who is required by this section to use PPE. Each such employee shall be trained to know at least the following:

. . .

(iv) The limitations of the PPE[.]

(1) Applicability of the Cited Standard

Subpart I of the Occupational Safety and Health Standards in Part 1910 addresses personal protective equipment. On January 17, 2017, a new standard for fall protection in general industry became effective. That standard, found at 29 C.F.R. § 1910.140 sets forth the requirements for fall protection and provides, regarding the scope and application of the standard, “This section establishes performance, care, and use criteria for all personal fall
protection systems. The employer must ensure that each personal fall protection system used to comply with this part must meet the requirements of this section.” 29 C.F.R. § 1910.140(a). The
standard at
§ 1910.140(d)(2)(ii)
further sets forth requirements for rigging personal fall arrest systems as follows:

Personal fall arrest systems are rigged in such a manner that the employee cannot free fall more than 6 feet (1.8m) or contact a lower level. A free fall may be more than 6 feet (1.8 m) provided the employer can demonstrate the manufacturer designed the system to allow a free fall of more than 6 feet and tested the system to ensure a maximum arresting force of 1,800 pounds (8kN) is not exceeded.

The Secretary did not cite the new fall protection standard for the alleged violations here where maintenance employee #1 secured his lanyard at foot level, exposing himself to a free fall of more than 6 feet. Instead, the Secretary alleges a violation of
the standard found at §1910.132
(specifically §1910.132(f)(1)(iv)) which, prior to the effective date of the new standard had long been considered broad enough
to apply to fall hazards . Fa ll protection such as a safety harness was considered a form of personal protective equipment. Bethlehem Steel Corp ., 10 BNA OSHC 1470, 1472 (No. 79-310, 1982);
Hackney Inc. , 16 BNA OSHC 1806, 1807-08 (No. 91-2409, 1994);
Cleveland Electric Illuminating Co. , 16 BNA OSHC 2091, 2093 (No. 91-2198, 1994).

The necessity of fall protection pursuant to
§
1910.132, however, is premised on a hazard assessment by the employer that fall protection is necessary, as set forth in §1910.132(d):

Hazard assessment and equipment selection.
(1) The employer shall assess the workplace to determine if hazards are
present, or
are likely to be present which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall:

(i) Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment;

(ii) Communicate selection decisions to each affected employee; and

(iii) Select PPE that properly fits each affected employee

. . .

For the
alleged violative
conditions
at issue , the standard found at
§ 1910.140(d)(2)(ii)
is the more specific standard. The Secretary did not move to amend the Citation to allege this new fall protection standard. As the cited standard is more general and is premised on completion of a hazard assessment, it is not applicable to the alleged violative conditions.

Item 1, alleging a violation of
§ 1910.132(f)(1)(iv)
is vacated.

Item
2 : Alleged Serious Violation of §
1910. 147 ( c ) (4) ( i )

Alleged Violation Description

Item
2
alleges:

On or about October 11, 2018- East Shop Detail Bay, the lockout/tagout procedure for the East
Blastec
was not used when removing the non-functioning motor from the top of the equipment.

Section
1910.1 47 ( c )( 4 )( i )

Section
1910.1 47 ( c )( 4 )( i )
provides:

Energy control procedure. (i)
Procedures shall be developed, documented and utilized for the control of potentially hazardous energy when employees are engaged in the activities covered by this section.

NOTE: Exception: The
e mployer need not document the required procedure for a particular machine or equipment, when all of the following elements exi sts : (1) The machine or equipment has no potential for stored or residual energy or
reaccu mu lation
of stored energy after shut down which could endanger employees; (2) the machine or equipment has a single energy source which can be readily identified and isolated; (3) the isolation and locking out of that energy source will completely deenergize and deactivate the machine or eq u ipment; (4) the machine or equipment is isolated from that energy source and locked out during serv ic ing or maintenance; (5) a single loc k out device will achieve a locked-out condition; (6)
the lockout device is under the exclusive
control of the authorize d
employee performing the servi c ing or maintenance; (7) the servicing or maintenance does not creat e
hazards for other employees; and (8) the employer, in utilizing this exception, has had no accidents involving the unexpected activ ati on or re e nergi z ation of the machine or equipment during servi cing
or maintenance.

(1)
Applicability of the Cited Standard

Section 1910.147(a)(i) of the LOTO standard provides
the “standard covers the servicing and maintenance of machines and equipment in which the
unexpected
energization or
start
up
of the machines or equipment, or release of stored energy could cause injury to
employees.”

The
Blastec
machine housing the motor was energized with 480 volts of electricity. Its energy source could be controlled at the
main disconnect and at the isolation switch. On the day of the accident, the
two
maintenance employees were tasked with
removing the motor which was not functioning. To do so they were required to de-energize the
Blastec
machine. To prevent the unexpected energization or
start up
of the
Blastec, the employees were to tag out the machine consistent with
FabArc’s
lockout/tagout procedures for the control of hazardous energy when employees serviced the
Blastec
(Exh. J-16). On the day of the accident
the
two maintenance employees were on the top of the
Blastec,
each had access to the isolation switch which was not locked and tagged out while maintenance employee #1 disconnected the wiring to the motor. Although it did not happen, employee #2 could have turned on the isolation
switch thereby re-energizing the
Blastec. The main disconnect, which also was not locked and tagged out, but was placed in the off position, could have been turned to the on position. Unexpected energization or
start up
of the machine could have occurred with devasting consequences while maintenance employee #1 was in the process of removing the wiring connecting the motor to the
Blastec
because the energy source was not locked and tagged out as required by the standard.

FabArc
asserts
the procedures set forth in Exhibit J-16 are not for the
Blastec
machine at issue in this matter.

The Court
is not persuaded by and
places no weight on
this
argument.

No evidence or testimony at the hearing was elicited to support this
claim.
Likewise,
despite
FabArc’s
claim the
Blastec
had a single energy source, it
did not establish any of the other requirements necessary to
establish
the exception to the standard.

Applicability of §
1910.1 47 ( c )( 4 )( i )
is established.

(2) Compliance with the Terms of the Cited Standard

FabArc
had in place lockout/tagout procedures for the control of hazardous energy for the
Blastec,
but it
failed to
utilize
those procedures
when
the
employees
were
engaged in the servicing and maintenance
of the machine. The main disconnect was not locked and tagged out because the device for securing the locks was broken
(Tr.
41). Instead,
the employees
placed the main disconnect in the off position and
disconnected the power at the isolation switch,
without attaching
lock out devices
to
either
(Tr.
46,
71-72;
Exh. J-22). CSHO Bollinger testified that because two employees could access the isolation switch,
two lockout devices should have placed on the isolation
switch (Tr.
71-72). As the energy source to the
Blastec
machine was not locked and tagged out, violation of the terms of §
1910.147(c)(4)(i)
is established.

(3) Access to the Violative Condition

Maintenance employees #1 and #2 worked
at the top of the
Blastec
machine engaged in the process of the removing the motor from the machine. The two employees accessed the top of the machine by a manlift. Maintenance employee #1 exited the manlift, disconnected the power to the machine from the isolation switch before
removing
wiring connecting the motor to the machine, and placed straps on the motor so it could be removed from the machine with an overhead crane (Tr.
39). Employee #2 observed from the manlift. No lockout/tagout procedures were utilized. Both employees had access to unexpected energization of the machine. The
Secretary has established access to the violative conditions.

(4) Knowledge of the Violative Conditions

To prove knowledge, the Secretary can show that a supervisor had either actual or constructive knowledge of the violation and such knowledge is generally imputed to the employer. An employee who has been delegated authority over another employee, even if only temporarily,
is considered to be
a supervisor for purposes of imputing knowledge to an employer. American Engineering & Development Corp ., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012);
Diamond Installations, Inc ., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006);
Tampa Shipyards, Inc. , 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). The employee's job function rather than title is determinative. Therefore, the Commission has imputed the knowledge of a “working leader,” because although not a full-time supervisor he was a supervisor at the time of the alleged violation.

FabArc
contends the Secretary cannot establish its management knew the maintenance employees were in the process of removing the malfunctioning motor from the
Blastec
since the
maintenance supervisor was not onsite at the time of the alleged violation. The Court disagrees.

Maintenance employee #1 testified he was the leadman when his supervisor was not present (Tr. 28). As such, he had authority over the employee in the manlift and therefor is a supervisor for purposes of imputing knowledge to
FabArc.

Where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such
knowledge
is generally imputed to the employer.”

Co m Tran
Crp ., Inc. v. U. S. Dep’t of Labor , 722 F.3d 1304, 1307-08 (11 th
Cir. 2013). A supervisor’s knowledge of a subordinate employee’s violative conduct may be imputed
to the employer even when the supervisor himself is simultaneously involved in the same violative conduct. Quinlan v. U. S. Dept. of Labor , 812
F.3d
832 (11 th
Cir. 2016). Knowledge
is imputed through
leadman maintenance employee #1
who testified the place for securing locks on the main disconnect was broken. Although he disconnected the power at the isolation switch, he did not place a lock on the device. He also was aware employee #2 was in proximity of the isolation switch
and also
had not placed a lock on it.

The evidence also establishes knowledge through
FabArc
designated management. The Safety Director advised CSHO Bollinger that the maintenance office knew of the broken handle
on the main disconnect and had ordered a replacement part for it. Nonetheless,
employees worked
on equipment without applying locks (Exh. J-23).

Knowledge of the violative condition is established. The Secretary has proven all
elements of his prima facie case.

Item
3 : Alleged Serious Violation of §
1910.1 78 ( p )(1)

Alleged Violation Description

Item
3
alleges:

On or about October 11, 2018- East Shop Detail Bay,
the forklift had been operated since February without a working horn and had been operated for two weeks with a leak that had not been evaluated.

Section
1910.1 78 ( p )(1)

Section
1910.1 78 ( p )(1)
provides:

Operation of the truck . (1)
If at any time a powered industrial truck is found to
be in need of
repair, defective, or in any way unsafe, the truck shall be taken out of service until it has been restored to safe operating condition.

( 1 )
Applicability of the Cited Standard

Section 1910.178(a)(1), addressing the applicability of powered industrial trucks, provides:

This section contains safety requirements relating to fire protection, design, maintenance, and use of
fork trucks,
tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by internal combustion engines[.]

(emphasis added)

Forklifts were used in
FabArc’s
facility.
CSHO Bollinger, pursuant to the Reginal Emphasis Program for powered industrial trucks which included forklifts,
expanded her inspection to include a forklift that operated in the vicinity of the accident
(Tr.
74-75;
Exh. J-18).
The Secretary has established
applicability of
§
1910.1 78 ( p )(1 ) .

(2) Compliance with the Terms of the Cited Standard

Inspection records of the forklift show that its horn was not operational
and had not
been functional
since February 2018. The forklift
also
had
leaks
which were not repaired until August 2018. The forklift was operated during the time period it had these defects and was not
taken out
of service
(Tr.
75;
Exhs.
J-17,
J-23). FabArc
does not dispute these
conditions of the forklift.

Maintenance supervisor
Saccal
advised CSHO Bollinger sometimes the forklift leaked because it was overfilled. Communication from
FabArc’s
safety director revealed the current leak was due to an issue with the side shifter, which though disabled, still caused problems
(Exh. J-23). Parts for the horn had been ordered and the leak issues were resolved (Exh. J-23). Although
FabArc
argues
a horn was not necessary because the forklift had a yellow strobe light
for
a warning device, the safety director had informed the automotive mechanic that a horn was critical
(Tr.
106;
Exh. J-23;
FabArc
brief,
p.
10).

Violation of the terms of §
1910.178(p)(1)
is established.

(3) Access to the Violative Condition

The evidence adduced at the hearing establishes
the forklift
had
operated
since February 2018 without a working horn and had operated with a leak until August 2018
in the vicinity where employees worked. OSHA’s violation worksheet shows three maintenance employees were exposed (Exhs.
J-17,
J-23). The
Secretary has established access to the violative conditions.

( 4 ) Knowledge of the Violative Conditions

FabArc’s
maintenance supervisor
Saccal
completed the daily i nspection
re ports for the forklift
( Exhs . J-17; J-23) .
Knowledge of the violation is established.

The Secretary has proven all
elements of his prima facie case.

Characterization of the Violation s

The Secretary characterized the violation s
of
the standards found at § §
1910.147(c)( 4 ) ( i )
and 1910.178(p)(1)
as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition] . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k).

By not locking and tagging out the
Blastec
machine before working on it as required by § 1910.147(c)(4)( i ), maintenance employee #1 was exposed to the unexpected energization of the machine which was powered by 480 volts of electricity and as a result could sustain an electric shock or be electrocuted.

Not taking out of service a forklift which
wa s not in safe operating condition as required
by §1910.178(p)(1) can result in serious injury or death to employees.

Here,
the
forklift without an operating horn could result in serious injur i es or death to employees in the vicinity of the moving forklift . Leaks from the forklift also p resented
slip and fall hazards to employees ,
creat ing
a substantial possibility of death or serious physical harm.

The Secretary properly characterized the
cited
violation s
as serious.

PENALTY DETERMINATION

“In assessing penalties, section 17(j) of the Act requires the Commission to give due consideration to the gravity of the violation and the employer's size, history of violation, and good faith.  29 U.S.C. § 666(j) . Gravity is a principal factor in the penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”
Siemens Energy & Automation, Inc ., No. 00-1052, 2005 WL 696568, at 3 (OSHRC February 25, 2005) (citation omitted). "Gravity, unlike good faith, compliance history and size, is relevant only to the violation being considered in a case and therefore is usually of greater significance. The other factors are concerned with the employer generally and are considered as modifying factors.''
Natkin
& Co. Mech. Contractors , No. 401, 1973 WL 4007, at 9, n. 3 (OSHRC April 27, 1973).

FabArc
employs approximately 300
employees
at its Oxford, Alabama facility
(Tr.
58;
Exh. J-1 ¶4).

It
had been inspected
three times
by OSHA in the five years prior to the inspection (Tr. 78 ).

O SHA
did not apply any reductions for size or history. However, it
applied a 15% good faith reduction to
each
gravity - based penalt y .

The Court credits
FabArc
with
an additional
good faith
reduction
based on
its immediate correction of the violative conditions and its
cooperation
with OSHA during
the inspection .

OSHA rated the g ravity
of the violations in Items 2 and 3 a s moderate. CSHO Bollinger testified the gravity of the violation cited in
Item 2 was rated
moderate because employees could receive an electr i c shock if the 480
volt circuit was reenergized ,
and
such an injury could result in death (Tr. 72-73) . 8
She based the moderate gravity rating for Item 3 on concluding that a violation would be of
medium severity
since
any injury could result in hospitalization ,
and
by concluding the
probability of an injury occurring
was lesser
because only a
few
employees
were present
in the vicinity of the forklift when it was operated (Tr. 78;
Exh . J-23).

Upon consideration of
the gravity of the violations,
FabArc’s
size, history and good faith , the Court as s e s s es
a penalty in the amount of
$8,500 for
ITEM
2; and $5,600 for
ITEM
3.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item 1 of the Citation, alleging a serious violation of § 1910.132(f)(1)(iv), is
   VACATED
   and
   no
   penalty is assessed.

2. Item 2 of the Citation, alleging a serious violation of § 1910.147(c)(4)(i), is
   AFFIRMED
   and a penalty in the amount of $8,500
   is assessed.

3. Item
   3
   of the Citation, alleging a serious violation of § 1910.178(p)(1), is
   AFFIRMED
   and
   a
   penalty
   in the amount of $5,600
   is assessed.

SO
ORDERED.            

/s/
Sharon D. Calhoun            

Dated: August 20, 2019   
   Administrative Law Judge

Atlanta, Georgia

"

1
During the pendency of this action, the revised Commission’s Rules of Procedure became effective on June 10, 2019.

2
During the hearing, the terms “baghouse” and “dust collector” were used interchangeably to refer to the Blastec machine.

3
CSHO Bollinger graduated from Georgia Tech with a
bachelor’s
degree in Industrial Engineering. She worked 2 ½ years with Union Carbide as an Associate Industrial Engineer, and for 17 years as an Associate Engineer, eventually becoming a Senior Engineer. After Union Carbide, CSHO Bollinger was employed as a Manufacturing Safety Engineer with Communications Technology Corporation for 1 ½ to 2 years when she left to work for OSHA. CSHO Bollinger will have been employed with OSHA
as a Safety Engineer
for 10 years at the end of 2019. She is responsible for inspecting worksites and preparing reports
(Tr. 55-57).

4
OSHA’s Regional Emphasis Program requiring forklifts in the facility to be included in an inspection was the basis for expanding the inspection to include the forklift at issue (Tr. 74-75; Exh. J-18).

5
Maintenance employee #1 described the baghouse as “a blaster, steel shop blaster. Steel runs through it and it gets all of the scale off of it, but the baghouse is a dust collector. It’s got filters in it with a electric motor, fan on top, it pulls the dust out of the machine into the filters, substance caught in barrels.” (Tr. 27) The baghouse is attached to the blaster by a big pipe, but stands 3 to 8 feet away from the blaster (Tr. 27).

6
Maintenance employee #1 testified he did not leave the top of the baghouse until after the employee whose finger was caught in the strap and amputated had left the facility (Tr. 45).

7
This machine is one of
two baghouses in the East Shop. The facility also has one baghouse
inside the West Shop and three on the outside of the West Shop (Tr. 33, 34).

8
CSHO Bollinger testified that she had cut and pasted some information in the Violation Worksheet. The information for the probability justification should have reflected electrical hazard (Tr. 73).