Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NO. 17-0099

 

Appearances:

Matthew Finnigan, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, Colorado

 For Complainant

Chris Matthewson, Chris Matthewson Safety Consulting, Denver, Colorado 

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

While installing a cable to energize a sulfur dioxide scrubber at the Ray Nixon power plant 

just outside of Colorado Springs, Colorado, one of Respondent’s employees broke his arm while 

attempting to lift a cable. (Tr. 52). After learning about the injury, OSHA sent Compliance Safety 

and Health Officer (CSHO) Lisa Bennett to inspect the worksite on December 6, 2016. (Tr. 180). 

As a result of her inspection, OSHA issued a Citation and Notification of Penalty to Respondent 

alleging three violations of the Occupational Safety and Health Act of 1970 (the Act). OSHA 

alleged a single, serious violation of 29 C.F.R. §1926.21(b)(2) for failing to properly train its 

employees in the recognition and avoidance of unsafe conditions presented by the cable; and two 

other-than-serious violations of 29 C.F.R. §1904.7(b)(3) and 29 C.F.R. §1904.29(b)(1) for failing 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

BERWICK ELECTRIC COMPANY, 

 

 Respondent.
2

to properly document workplace injuries in the OSHA 300 log, including the injury at issue in this 

case. For the training violation, Complainant proposed a total penalty of $4,310.00. No penalties 

were assessed for the record-keeping violations. Respondent timely contested the Citation, which 

brought the matter before the Occupational Safety and Health Review Commission pursuant to 

Section 10(c) of the Act. 

The Chief Judge designated this matter for Simplified Proceedings pursuant to 

Commission Rule 203(a). See 29 C.F.R. § 2200.203(a). A simplified trial was conducted in 

Denver, Colorado on December 5, 2017. Five witnesses testified at trial: (1) [redacted], the injured 

electrician employed by Respondent; (2) CSHO Lisa Bennett; (3) Bill Tuten, Respondent’s safety 

manager; (4) Eric Norman, Respondent’s general foreman for the Ray Nixon project; and (5) John 

DeLuke, electrician and journeyman trainer for the International Brotherhood of Electrical 

Workers (IBEW). Both parties timely submitted post-trial briefs for the Court’s consideration.

Jurisdiction & Stipulations

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act and that, at all times relevant to this proceeding, Respondent was an 

employer engaged in a business and industry affecting interstate commerce within the meaning of 

Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 50). See Slingluff v. OSHRC, 425 F.3d 

861 (10th Cir. 2005). The parties also stipulated to several facts, which were read into the record.1

(Tr. 50–56).

 

1. The parties amended Stipulation Number 17 to remove all but the first two sentences as it was being read into the 

record. (Tr. 53–55).
3

Factual Background

Respondent was contracted by The Perry Group (PG) to install electric cable that would 

power a sulfur dioxide scrubber at the Ray Nixon Power Plant (RNPP), located just south of 

Colorado Springs, Colorado. (Tr. 74–75). The cable installation process is known as a “wire pull.” 

(Tr. 75). The particular electric cable being pulled at RNPP was a three-part cable, roughly 3–4 

inches wide, weighing approximately 11 pounds per linear foot. (Tr. 52, 82; Exs. C-9, R-4). About

1,000 feet of cable had to be run between the scrubber and the switchgear building. Therefore, the 

entire length of electric cable weighed close to 11,000 pounds. (Tr. 81; Ex. C-1). 

A wire pull for this size cable could not be accomplished by merely dragging the cable 

across the ground; rather, it required a series of rollers, sheaves, and a tugger, which are all 

designed to pull the heavy cable while preventing the outer insulation of the cable from becoming 

damaged. (Tr. 79, 86, 162; Exs. C-8, C-10, C-11, C-12). In order to run 1,000 feet of heavy duty 

cable, Respondent and PG developed a plan for the wire pull. (Ex. C-1). On November 22, 2016, 

employees from PG and Respondent gathered to discuss how the wire pull would be accomplished. 

(Tr. 93). The meeting was run by PG, with input from Eric Norman, Respondent’s on-site 

foreman. (Tr. 93–94). In addition to discussing the logistics of the pull, [redacted] testified that 

they also discussed the hazards involved in the wire pull, including pinch points, the impact of the 

cable’s size, and that the job would be executed using the buddy system. (Tr. 91–92). According 

to [redacted], the buddy system was an unwritten policy required on this job by PG, and 

implemented by Respondent. (Tr. 94, 97). [redacted] also testified that the buddy system was a 

normal part of being an electrician, because many jobs require two people to accomplish. (Tr. 94–

95). He admitted, however, that it is not something that is strictly defined or enforced. (Tr. 95–

96). Indeed, other than being required to “always be working with our buddy at all times”, 
4

[redacted] testified not much else was said about its implementation, including how the buddy 

system related to handling this particular cable. (Tr. 89, 94, 170). This testimony was echoed by 

CSHO Bennett, who testified she did not learn much about the buddy system during her interviews, 

other than that two people needed to be working together at all times. (Tr. 191).

On November 23, 2016, [redacted] started his day welding a strut to support a cable tray, 

which is an elevated surface equipped with rollers designed to move the cable without friction.

(Tr. 75–76, 103–104). At some point that morning, Nate Cinocco, another journeyman electrician, 

re-assigned [redacted] to the wire pull.2(Tr. 104). [redacted] had not participated in the Job Hazard 

Analysis for the wire pull earlier that morning, and did not sign the JHA for the purposes of being 

informed about the hazards of the job. (Tr. 105). Nevertheless, [redacted] relocated to a waterfall 

on the cable line, which is a point where the cable drops downward from a cable tray onto another 

set of rollers. (Tr. 84–85, 105; Ex. C-8). At this particular waterfall, the sheave had started tilting 

to the north side of the tray, which was causing a hitch in the movement of the cable. (Tr. 106–

107). 

In order to straighten the sheave, [redacted] decided that he needed a new piece of strut 

measuring approximately 6 inches. (Tr. 105). He directed his apprentice, Robert Luerssen, to cut 

a piece of strut that size, and then meet him back at the waterfall. (Tr. 105). While Mr. Luerssen 

was retrieving the strut, [redacted] determined that he should remove the section of cable from the 

sheave, and place it to the side on the cable tray, so they could install the new strut to adjust the 

sheave. (Tr. 105). To do this, [redacted] got into a man lift and positioned himself underneath the 

cable at the point where it came out of the sheave, about 15 feet above the ground. (Tr. 110, 120; 

Exs. C-6, C-12). Once he got into position, [redacted] crouched underneath the cable, and lifted 

 

2. According to [redacted], Cinocco was not his supervisor but was just relaying instructions from Eric Norman, the 

on-site foreman for Respondent. (Tr. 105).
5

that section of the cable onto his shoulder. (Tr. 111–112). As soon as he lifted the cable out of the 

sheave wheel, the cable jerked down suddenly and crushed his arm against the railing on the basket 

of the man lift. (Tr. 112–113, 184).

Brian Riggs, Respondent’s other site foreman, saw [redacted] working by himself in the 

lift just before the accident, and directed Brad Gann, another journeyman electrician, to go assist 

[redacted]. (Tr. 120–21). As Mr. Gann was approaching the lift, the cable shifted and fell onto 

[redacted]’s arm. (Id.). [redacted] was taken to the local hospital, diagnosed with a broken arm, 

and screws and plates were permanently inserted into his forearm to repair the injury. (Tr. 125–

26, 156–57). According to [redacted], he was off work for approximately four or five days after 

the accident. (Tr. 127). After that, Bill Tuten brought him back to the office to perform light-duty 

paperwork for Respondent. (Tr. 127). It was another two months before [redacted] was able to 

perform regular electrician’s work. (Tr. 127).

Two weeks later, on December 6, 2016, CSHO Bennett came to the worksite to perform 

an inspection. (Tr. 180). She conducted an opening conference with representatives of 

Respondent, Perry Group, and Colorado Springs Utility. (Tr. 181–82). She also interviewed 

individuals with knowledge of the incident. (Tr. 181). In addition to learning about the layout of 

the cable pull and the details of the accident, CSHO Bennett concluded that [redacted] had not 

been properly trained to recognize the hazards imposed by the suspended heavy duty cable (Tr. 

186–87). Instead, based on her interviews and inspection, CSHO Bennett summarized

Respondent’s training and instructions to employees for this job as: (1) we are pulling heavy cable, 

(2) which will create pinch points, (3) so be sure to work with your buddy. (Tr. 188–91). 

CSHO Bennett also reviewed Respondent’s injury logs during her investigation. (Tr. 207; 

Ex. C-15). CSHO Bennett testified that she received information from Bill Tuten indicating that 
6

[redacted] was off work for thirteen days as a result of the accident. (Tr. 213). The 300 log, 

however, indicated that [redacted] had been placed on restricted duty, a less severe classification. 

(Tr. 212; Ex. C-15). In addition, CSHO Bennett noted individual log entries were missing certain

pieces of required factual information. (Tr. 213). Based on these findings, CSHO Bennett 

ultimately recommended, and Complainant issued, the violations alleged in this case.

Discussion

To establish a violation of an OSHA standard, Complainant must prove, by a 

preponderance of the evidence, that: (1) the cited standard applied to the facts; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees were exposed or had access 

to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge 

of the violative condition (i.e., the employer knew, or with the exercise of reasonable diligence 

could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). 

The facts of this case are largely undisputed. The parties agree that a planning/training 

session took place the day before the accident, and agree to the circumstances under which 

[redacted] was injured. In fact, the parties stipulated, among other things, that the cited standards 

applied to Respondent’s work activities at all relevant times; that [redacted] was Respondent’s 

employee at all relevant times; that [redacted] broke his right forearm while adjusting the cable at 

issue. (Tr. 50-52). The Court finds that Respondent is also deemed to have knowledge of the 

training it provided, and did not provide, to [redacted] and other employees related to this job. 

The only remaining questions are whether [redacted], was sufficiently trained to perform his work 

pursuant 29 C.F.R. §1926.21(b)(2), and whether Respondent’s work-related injury documentation 

complied with 29 C.F.R. §§1904.7(b)(3) and 1904.29(b)(1). 

Citation 1, Item 1
7

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.21(b)(2): The employer did not instruct each employee in the recognition 

and avoidance of unsafe condition(s) and the regulation(s) applicable to the work 

environment to control or eliminate any hazard(s) or other exposure to illness or injury:

a) On or about November 23, 2016, and at times prior, employees were exposed to struckby, caught-in, and crushing hazards when manually lifting an electrical cable weighing 

10.9 pounds per linear foot. The cable was being installed in a raceway on the outside of a 

building, 15 feet above grade. To install the cable a spool of the cable was set on an electric 

powered tugger next to a below-grade trough 40 feet from the elevated portion. The cable 

was run on rollers through the trough, and then up into the elevated raceway. To facilitate 

the cable pull, the cable was placed over a sheave with a free spinning wheel, at the end of 

the elevated raceway. Adjustments to the sheave required the cable to be removed from 

the wheel. Employees lifted the cable in and out of the wheel manually. During a manual 

move employees were exposed to the weight of more than 15 feet of cable and the dynamic 

forces on the cable along its entire span. One employee suffered a broken arm when he 

was supporting the cable on his hand and shoulder and the cable jerked. Workers were 

trained in the weight of the cable, but not in material handling methods to safely move the 

cable to complete required tasks. 

Citation and Notification of Penalty at 6.

According to 29 C.F.R. § 1926.21(b)(2), “an employer must instruct its employees in the 

recognition and avoidance of those hazards of which a reasonably prudent employer would have 

been aware.” Capform, Inc., 19 BNA OSHC 1374 (No. 99-0322, 2001) (citing Pressure Concrete 

Constr. Co., 15 BNA OSHC 2011, 2015 (No. 90-2668, 1992)). The standard also requires 

employees be instructed on the content of regulations applicable to those hazards. Id. (citing 

Superior Custom Cabinet Co., 18 BNA OSCH 1019, 1020 (No. 94-200, 1997)). Thus, in order to 

establish a violation of an OSHA training standard, Complainant must prove, by a preponderance 

of the evidence, that Respondent failed to provide the instructions a reasonably prudent employer 

would have given in the same circumstances. See Compass Environmental, Inc., 663 F.3d 1164, 

1169 (10th Cir. 2011) (citing El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1424 (No. 90-

1106, 1993)). Such circumstances include “the specific conditions [at the worksite], whether those 
8

conditions create a hazard, and whether the employer or its industry has recognized the hazard.” 

Id. (citing W.G. Fairfield Co., 19 BNA OSHC 1233 (No. 99-0344, 2000)). 

According to [redacted] and Eric Norman, the pre-pull meeting on November 22, 2016 (the 

day before the accident) covered multiple safety topics, including the buddy system, the so-called 

“line of fire”,3and pinch points. (Tr. 92, 266). As it was relayed to the Court, however, each 

hazard was addressed in the same way—use the buddy system. (Tr. 268). The following colloquy 

is instructive. In response to the Court’s inquiries regarding how to adjust or move the cable, 

Norman responded: 

Yes. We talked about the pinch points, using your tool buddy to help you if it’s too 

heavy. One thing that I like to stress is stop when unsure, you know, stop and ask 

your foreman or—your foreman, another tool buddy, you know, anybody that 

you’re working with—stop when—you know, stop if you’re unsure, and we’ll get 

it figured out, you know, whatever the question may be, we’ll get it figured out, get 

the answer, the solution. 

....

Referring to using your tool buddy, we had, you know, a lot of different sets of 

experience in that room on that crew. So when we’re handling the cable, use a tool 

buddy to help lift because of the weight, and making sure that you’re keeping body 

parts out from under the cable and out of the line of fire. As far as handling the 

cable, for adjusting, it’s by hand. 

(Tr. 268–69). Other than being admonished to rely on his buddy, [redacted] testified he did not 

recall receiving any instruction on the proper way to handle the cable, or specific instructions not 

to lift or adjust the cable by hand. (Tr. 89, 94). 

Even though the wire pull had been mapped through the facility, including all cable trays, 

waterfalls, and sheaves, there was apparently no further discussion about how to handle the cable 

 

3. According to Norman, the “line of fire” is “any kind of mechanical failure of any kind of equipment, rope, structure. 

If the cable did anything that was not what we expected it to do, we wanted to make sure that you were—you know, 

that each person did not put themselves in the way—in harm’s way for any mechanical failure, anything—anything 

breaking or anything like that.” (Tr. 267).
9

when it got stuck or needed to be moved. This is particularly problematic when one considers that 

Respondent’s workforce consisted of electricians who had extensive wire pulling experience, as

well as those who did not. (Tr. 269). Given its employees’ wide range of experience, Respondent 

had an obligation to ensure that its training was both clear, and effectively communicated. 

Capform, Inc., supra, 19 BNA OSHC 1374 (holding rules and training need not be written down 

so long as it is specific enough to advise employees of the hazards associated with their work and 

the ways to avoid those hazards). The Court finds Respondent failed in that obligation.

There is no question that the cable was extremely heavy, requiring an extensive system of 

pulleys and rollers to facilitate its movement. [redacted] and Mr. Tuten both testified the cable 

was also unwieldy due to the cold temperatures, which caused the cable to stiffen up. (Tr. 112–

113, 255). Compounding these problems, Mr. Tuten admitted that Respondent had never 

performed a wire pull with a cable of this size before. (Tr. 290). Nor had he, as Respondent’s 

safety manager, ever provided training related to wire pulls to Berwick employees. (Tr. 250–51). 

In fact, the training provided at the worksite was provided by Perry Group and was premised on 

its own policies and rules, not Respondent’s. (Tr. 93, 251). The extent of the material handling 

training provided to Respondent’s employees prior to the wire pull was “to do the buddy system.” 

(Tr. 257). There was no discussion as to how this training applied in specific instances, nor any 

clarification as to when the use of a buddy was required or appropriate. 

Mr. DeLuke and Mr. Tuten testified that cable adjustments are typically done by hand on 

most jobs; however, they also noted those pulls involved smaller cables. (Tr. 269, 318). It was not 

reasonable to assume that a general instruction to “use your buddy” would be sufficient to address 

the particular hazards imposed by the heavy cable at issue in this case, which all agree was larger 

and heavier than on Respondent’s previous wire pulls. See Deep South Crane and Rigging Co., 23 
10

BNA OSHC 2099 (No. 09-0240, 2012) (holding that reliance on prior training on one type of crane 

was improper for the purposes of establishing the sufficiency of training on another, bigger crane).

The Court also notes that [redacted] was not originally assigned to participate in the actual 

pulling of the wire on the day of the accident; instead he was assigned to weld struts to support a 

cable tray. Although a JSA was available for this job activity, [redacted] did not participate in its 

development, did not review it, nor did he sign onto it. (Tr. 103; Ex. C-4 at 7). Although Mr. Tuten 

and [redacted] testified the content of the JSA was similar in kind to the group presentation from 

the day before, both admitted that the process of filling out a JSA is important because it “really 

gets your mind set on what you’re about to do, on all the hazards involved.” (Tr. 155, 255). 

Whether due to the incomplete nature of the original training meeting, the unusually large and 

heavy nature of this particular cable, or by virtue of [redacted]’s lack of familiarity with the wire 

pull JSA, it is clear his training did not prepare him to recognize or avoid the hazard of lifting the 

heavy cable onto his shoulder and moving it by hand. 

This case is similar to the situation presented in Capform, supra. In that case, the employer 

provided oral instruction to two new employees on how to remove jacks that were used to support 

recently poured concrete slabs. The two employees received instructions on how to remove the 

jacks under normal circumstances, but their trainer apparently did not provide instructions on how 

to proceed when immovable obstructions were present. Id. The Commission found Respondent 

failed to provide adequate instruction because, if the trainer had inspected the work area ahead of 

time, he would have noticed “it might not be possible for the employees to remove all of the posts 

. . . in the manner in which he had instructed.” Id. (citing Automatic Sprinkler Corp., 8 BNA OSHC 

1384, 1387 (No. 76-5089, 1980) (an employer “must make a reasonable effort to anticipate the 
11

particular hazards to which its employees may be exposed in the course of their scheduled 

work.”)). 

In similar fashion, Respondent essentially relied upon the work methods it had employed 

in previous wire pulls. The only significant difference in the training was the implementation of 

the buddy system, whose application was entirely subject to the interpretation of the individual 

employee(s). (Tr. 315–16). The problem, however, was this particular wire pull was not amenable 

to the standard practices Respondent typically employed. Mr. Tuten confirmed this point in 

response to questions from the Court: 

JUDGE DUNCAN: I think I heard [redacted] talk about Berwick’s policy on this 

job and other jobs, to say clear of, you know, pinch points. And [redacted]

explained to me that that was your body, your body parts, in relationship to a wire 

cable like this one. And I heard Mr. Norman talking about staying clear of the line 

and making sure that everyone is not in the line of sight or line of tension –

TUTEN: Line of fire.

JUDGE DUNCAN: -- line of fire. 

How do you reconcile that policy, which I’ve heard from several people 

today, with what I’ve heard from other witnesses today that says it is perfectly okay 

and acceptable to physically put your hands on a cable under tension and suspended 

in the air to shift it a few inches? Those two seem inconsistent to me, and I want to 

give you an opportunity to explain that.

TUTEN: I would—I don’t know if I have a good answer for that.

JUDGE DUNCAN: Okay. Well, I’d like to know what your best answer is to that. 

You are the safety director for the company so you seem to be the appropriate 

person to ask. 

TUTEN: I think to address it from this situation with this size cable with the type 

of problem that they had with the sheave, okay, I think that work should have 

stopped, and it should have been reevaluated instead of moving forward. And I 

think the wrong decision was made to proceed with work.

(Tr. 294–95). Respondent’s own safety manager determined they failed to adequately anticipate 

and address the hazards present during the wire pull; in particular, the need to move the cable to 

make adjustments at the sheave. Accordingly, in conjunction with the stipulations above, the Court 
12

finds Complainant established the prima facie elements required to prove the violation of 29 C.F.R. 

§ 1926.21(b)(2). 

A violation is “serious” if there was a substantial probability that death or serious physical 

harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not 

show that there was a substantial probability that an accident would actually occur; he need only 

show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. 

OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is 

death or serious physical harm, a violation of the regulation is serious. Mosser Construction, 23 

BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 

1993).

Respondent failed to provide adequate instruction on handling and moving a heavy duty 

cable, under tension, in an elevated position. Considering the weight of the cable and the locations 

where it was most likely to be handled, the Court finds that if an accident occurred, a serious injury 

would be the likely result. In this case, unfortunately, that possibility became a reality when 

[redacted]’s arm was crushed between the cable and a metal railing. Accordingly, the Court finds 

Citation 1, Item 1 was properly characterized as a serious violation of the Act.

Respondent Failed to Prove the Affirmative Defense of 

Unpreventable Employee Misconduct

In order to prevail on a claim of unpreventable employee misconduct, Respondent must 

show: (1) it had established work rules designed to prevent the violation; (2) it adequately 

communicated those rules to its employees; (3) it took steps to discover violations of the rules; and 

(4) it effectively enforced the rules when violations were detected. Am. Eng’g & Dev. Corp., 23 

BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). In other words, it is incumbent upon 

Respondent to “demonstrate that the actions of the employee were a departure from a uniformly 
13

and effectively communicated and enforced workrule.” Archer-Western Contractors Ltd., 15 BNA 

OSHC 1013 (No. 87-1067, 1991).

The work rule Respondent bases its unpreventable employee misconduct assertion upon is 

the requirement of the “buddy system.” Perry Group required the use of the buddy system policy 

at the power plant, not Respondent, although [redacted] acknowledged it is common in the 

industry. According to Mr. Tuten, Respondent does not have a hard and fast policy on this; rather, 

an electrician only knows to use the buddy system “[w]hen they’re told to.” (Tr. 251). The 

examples he gave, however, were not related to cable handling, but instead involved confined 

space entry and specific types of energized work per the National Fire Protection Association 

(NFPA). (Tr. 251). Further, in response to a question about whether Respondent provides 

guidance to foremen about when to require the use of the buddy system, Tuten responded, “I would 

say yes, but I don’t know how often that happens. I know they do it.” (Tr. 252). These are not the 

hallmarks of a uniformly and effectively communicated work rule. 

During her investigation, CSHO Bennett also learned about a similar incident with this 

cable and a sheave that occurred the day before [redacted]’s accident. (Tr. 189). Apparently a 

sheave wheel was off-center and required an adjustment. (Tr. 189). According to Foreman Riggs, 

two employees were working in a man lift, one of the employees manually lifted the cable from 

the sheave, much like [redacted] did on the day of the accident. (Tr. 190). Thus, [redacted]’s 

actions appear to have been consistent with Respondent’s normal practices. Therefore, the buddy 

system appeared to be little more than an admonition to have another employee present while 

performing work. Mr. Tuten and Mr. Norman also testified that they were unaware of any Berwick 

employee ever being disciplined for failing to comply with the buddy system rule. (Tr. 276, 293). 
14

In addition to the foregoing, Respondent cannot prevail on the defense of unpreventable 

employee misconduct “where the employer’s instructions were insufficient to eliminate the hazard 

even if the employee had complied with the instructions.” Archer-Western Contractors Ltd., 15 

BNA OSHC 1013 (citing Brown & Root, Inc., 8 BNA OSHC 1055, 1060 (No. 76-3492, 1980)). 

It was unclear how the presence of a “buddy” would have enabled [redacted] to handle the cable 

in a safer, more appropriate manner. Accordingly, Respondent failed to establish the affirmative 

defense of unpreventable employee misconduct. Citation 1, Item 1 will be AFFIRMED. 

Citation 2, Item 1a 

Complainant alleged a serious violation of the Act in Citation 2, Item 1a as follows: 

29 CFR 1904.7(b)(3): The employer did not correctly classify work-related injuries 

or illnesses on the OSHA Form 300 or equivalent: 

a) On or about December 6, 2016, and at times prior, the employer did not 

correctly enter the following work-related injury on the 2016 OSHA Form 300 Log 

of Work-Related Injuries and Illnesses:

Case 5 should have been marked in Column H, “Days Away from Work,” but was 

marked in Column I, “Job Transfer or Restrictions.” 

Citation and Notification of Penalty at 7.

The cited standard states, “When an injury or illness involves one or more days away from 

work, you must record the injury or illness on the OSHA 300 Log with a check mark in the space 

for cases involving days away and an entry of the number of calendar days away from work in the 

number of days column.” 29 C.F.R. 1904.7(b)(3). Consistent with the requirements of the 

recording criteria of 1904.7, the log indicates that only the most severe injury column should be 

marked. (Ex. C-15). So, if an employee, like [redacted], suffered an injury resulting in both days 

away from work and a subsequent restriction, the log should be marked to reflect only the days 

away from work, which is the more severe of the two. 
15

[redacted] testified he was away from work for approximately four or five days following 

the injury. (Tr. 127). Following that period of time, [redacted] came back to the office, where he 

performed light-duty functions involving paperwork. (Tr. 127; Ex. R-12). In the OSHA 300 log, 

however, Mr. Tuten characterized [redacted]’s injury as “job transfer/restriction.” (Ex. C-15). Mr. 

Tuten failed to correctly mark the appropriate injury classification. Thus, the Court finds 

Complainant proved an other than serious violation of 29 C.F.R. § 1904.7(b)(3).4 Citation 2, Item 

1(a) will be AFFIRMED. 

Citation 2, Item 1b

Complainant alleged a serious violation of the Act in Citation 2, Item 1b as follows: 

29 CFR 1904.29(b)(1): A log of all recordable work-related injuries and illnesses 

(OSHA form 300 or equivalent) was not completed in the detail as required by the 

regulation: 

a) On or about December 6, 2016, and at times prior, the OSHA 300 Log for 2016 

was not completed in the detail required by the regulation, in that each entered case 

did not include all three of the required elements in Colum [sic] (F), “Describe 

injury or illness, parts of body affected, and object/substance that directly injured 

or made the person ill.”

Citation and Notification of Penalty at 8.

The requirements of the cited standard are fairly simple: “You must enter information about 

your business at the top of the OSHA 300 Log, enter a one or two line description for each 

recordable injury or illness and summarize the information on the OSHA 300A at the end of the 

year.” 29 C.F.R. § 1904.29(b)(1). In this item, Complainant contends Respondent is in violation 

because it did not include the full description for each injury as instructed at the top of the OSHA 

 

4. While the Court finds a violation of the standard, it does not accept CSHO Bennett’s testimony regarding the 

number of days away from work. The only evidence she provided regarding the number of days was that she “got a 

doctor’s note or I heard from Mr. Tuten from a doctor’s note” that [redacted] was unable to work for 13 days. (Tr. 

213). Given the equivocal nature of her testimony, and her lack of memory regarding where the information came 

from, the Court instead credits [redacted]’s assessment of his time away, which amounted to approximately four or 

five days. 
16

300 form, which identifies three separate pieces of required information: (1) injury or illness, (2) 

parts of body affected, and (3) the object or substance causing the injury or illness. (Ex. C-15). 

Respondent entries simply stated things like: “laceration rt. middle finger” and “fracture to right 

forearm.” (Ex. C-15). For example, [redacted]’s injury entry did not identify the cable (or anything 

else) as the “object or substance causing” his broken arm. (Ex. C-15). Respondent failed to 

describe workplace injuries and illnesses on its OSHA 300 form in sufficient detail. Thus, the 

Court finds Complainant proved an other than serious violation of 29 C.F.R. § 1904.29(b)(1). 

Citation 2, Item 1(b) will be AFFIRMED. 

Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s 

prior history of violations. Gravity is the primary consideration and is determined by the number 

of employees exposed, the duration of the exposure, the precautions taken against injury, and the 

likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 

1993). It is well established that the Commission and its judges conduct de novo penalty 

determinations and have full discretion to assess penalties based on the facts of each case and the 

applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); Allied 

Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

Complainant assessed a gravity-based penalty of $4,310.00 for Citation 1, Item 1. This 

penalty was calculated through the application of a 30% reduction based on Respondent’s small 

size and an additional 15% reduction for quick-fix abatement, which was accomplished by the 
17

time CSHO Bennett arrived at the worksite for the inspection.5 CSHO Bennett determined the 

training violation was of medium severity because a broken arm is a condition that will likely 

result in missed workdays, but is also temporary in duration. (Ex. 201–202). Complainant did not 

provide Respondent any penalty reductions for history, even though they had been inspected in 

2011 with a finding of no violations. (Tr. 203). Considering the totality of the circumstances 

discussed herein, the Court finds that a slightly reduced penalty of $3,000.00 is appropriate.

Order

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1 is AFFIRMED as a serious violation, and a penalty of $3,000.00 is 

ASSESSED;

2. Citation 2, Item 1(a) is AFFIRMED as other-than-serious violation with no penalty; and

3. Citation 2, Item 1(b) is AFFIRMED as other-than-serious violation with no penalty.

/s/

Date: July 13, 2018 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission

 

5 After the accident, Respondent began using a forklift to move and reposition the cable, when necessary. (Tr. 135, 

166-167).