United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 17-0556 

Nissan North American, Inc.,

 Respondent.

Attorneys and Law Firms: 

Jean C. Abreu, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta, 

Georgia, for Complainant

Dana Rust, Esq. and Katherine Knight, Esq., McGuire Woods, for Respondent

JUDGE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

On July 31, 2016, a contract employee of Nissan North America, Inc., (Nissan) was

replacing a motor on a robot on the first floor of the company’s Canton, Mississippi, facility. 

While he did so, three Nissan maintenance technicians were performing a preventive 

maintenance inspection on a conveyor on the upper level of the facility. When the contract

employee completed his task, he restarted the conveyor from the master control panel. The 

conveyor began to move. At that same moment, one of the technicians had placed his hand on 

one of the conveyor’s belts. His hand was pulled into the conveyor, amputating three fingers.

Nissan timely reported the injury to the Jackson, Mississippi, Area Office of the 

Occupational Safety and Health Administration (OSHA). Compliance Safety and Health Officer 

(CSHO) James Oglesby of that office performed an inspection of the Nissan Canton facility 

beginning on December 2, 2016.1 Based upon his inspection, CSHO Oglesby recommended 

Nissan be issued a two-item serious citation alleging failure to notify the Nissan maintenance 

 

1

Initiation of the inspection was delayed in order to resolve a dispute regarding employee representative 

participation in the inspection. That issue is not before me. Nor has Nissan raised the timeliness of the citation as 

an issue for resolution.
2

technicians of the restart of the conveyor and failure to properly train them on lockout 

procedures for the conveyor. The Secretary proposes a total penalty of $ 21,140.00 for the 

Citation. Nissan timely contested the Citation bringing the matter before the Occupational 

Safety and Health Review Commission pursuant to § 10(c) of the Occupational Safety and 

Health Act of 1970, 29 U.S.C. § 651-678 (the Act). 

I held a hearing in this matter on March 21, 2018, in Jackson, Mississippi. The parties 

filed post-hearing briefs on May 17, 2018.2

For the reasons discussed below, Item 1, Citation 1, is VACATED; Item 2, Citation 1, is 

AFFIRMED, and a penalty of $12,675.00 is assessed.

JURISDICTION

At the hearing, the parties stipulated jurisdiction of this action is conferred upon the 

Commission pursuant to § 10(c) of the Act. The parties also stipulated at the hearing that at all 

times relevant to this action, Nissan was an employer engaged in a business affecting interstate 

commerce within the meaning of § 3(5) of the Act (Tr. 8). Based on the parties’ stipulations and 

the facts presented, I find Nissan is an employer covered under the Act and the Commission has 

jurisdiction over this proceeding.

BACKGROUND

Nissan is an auto maker with a large facility in Canton, Mississippi. At that facility, the 

company employees over 6,000 individuals. Thousands of pieces of equipment are used 

throughout the facility in the manufacturing process. The equipment at issue is a conveyor. The 

conveyor is used to transfer auto bodies from one manufacturing process to another.

A portion of the conveyor is located above the main floor of the facility on the mezzanine 

level and is designated CP-M7.

3

 No production occurs on the mezzanine level; it serves only as 

a transfer point from one of the main level production processes to another (Tr. 157; 218). The 

conveyor is electrically powered. Rather than moving continuously once energized, the 

conveyor moves via an automated process. As an auto body moves along the conveyor, it passes 

by “proximity switches.” As the auto body passes the proximity switch, the switch is activated, 

 

2 To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed 

abandoned.

3 The elevated area in which the conveyor is located, as seen from ground level, is depicted in Exhibit C-2. The 

same area, as seen from the mezzanine, is depicted in Exhibit C-3. Exhibit R-1 contains a schematic of the 

conveyor. 
3

sending a signal to the conveyor to move the auto body to the next area (Tr. 157). Brian 

Schuetzle, the maintenance manager for the Nissan Canton facility, described the process as 

follows:

The conveyor is dormant. As a unit moves into position, we block a proximity 

switch. When the proximity switch is blocked, the code, the program looks 

ahead. As it looks ahead, if the proximity switch ahead is not blocked or been set 

memory, then it knows that it’s okay to advance that pallet unit to the next stage. 

Then it comes on.

(Tr. 217). 

Nissan employs its own maintenance technicians to perform service and maintenance on 

the equipment at the Canton facility, including the conveyor (Tr. 158). It also uses contract 

mechanics to work on mechanical systems (Tr. 158-59). Nissan trains its maintenance 

technicians. That training includes orientation training performed on the employee’s start date 

followed by a 14-week hands-on training program at Nissan’s training facility. After technicians 

have completed the 14-week training, they receive on-the-job training on each assigned task for 

several weeks. Included in the orientation training is a video providing an overview of lockout 

procedures (Exh. C-10 and C-11). The 14-week training and the on-the-job training all include 

lockout training. Nissan provides locks to technicians prior to their being assigned to work at the 

Canton facility. Contract mechanics generally have more experience than Nissan’s technicians 

(Tr. 158). It is not clear on this record what, if any, training Nissan provides to the contract 

mechanics.

At the time of the accident, Robert Looney was a maintenance supervisor at the Nissan 

Canton facility (Tr. 144). He supervised a crew of 20 Nissan technicians and contract 

mechanics. His crew was approximately equally divided between the two types of workers (Tr. 

158). 

At the start of the shift on July 31, 2016, Supervisor Looney distributed written work 

orders to his crew (Tr. 144). He assigned three Nissan maintenance technicians – Technician 1, 

Technician 2, and the injured employee4- to perform a preventive maintenance inspection of the 

CP-M7 located on the mezzanine level. Technician 1 was more experienced and had, Supervisor 

Looney believed, performed the assigned preventive maintenance inspection previously (Tr.

151). Technician 2 and the injured employee were less experienced, having started with Nissan 

 

4 The names of hourly employees, including the name of the injured employee, have been omitted for privacy.
4

in January of 2016.5 Supervisor Looney provided little instruction regarding the preventive 

maintenance inspection other than a general admonition to be safe (Tr. 101, 119, 250). The 

injured employee asked Technician 1 whether he knew how to perform the assigned inspection, 

to which Technician 1 replied, “No.” (Tr. 120)6 The injured employee then asked Technician 2 

whether he knew what to do. Technician 2 told the injured employee he had done a similar 

inspection and would show him what the assignment involved (Tr. 120).7

The three technicians proceeded to the mezzanine level where Technician 2 began to 

show the injured employee how he had performed the assignment in the past by checking the 

“looseness of the belt and the conveyor, and mak[ing] sure the prox[imity] switches were 

working.” (Tr. 120) They checked the functioning of the proximity switches by “flagging” them 

or placing a flashlight in front of each switch (Tr. 123). As they did so, a light on the back of the 

switch turned on, indicating it was working (Tr. 141). Because the conveyor was powered down, 

activating the switch did not cause the conveyor to move (Tr. 140-41). The switch locked in a

“memory bit” that it had been flagged (Tr. 140). In addition to checking the functioning of the 

proximity switches, the injured employee and Technician 2 checked the belts that operated the 

conveyor (Tr. 103). Both technicians did so by pulling on the belt with their hands and visually 

checking its teeth (Tr. 103, 137). 

At the same time, a contract mechanic was replacing the motor to a robot on the first 

level of the facility. To do so, the mechanic had shut down and locked out some portion of the 

 

5 Technician 2 and the injured employee had completed the 14-week training at Nissan’s training facility and had 

worked at the Canton facility approximately three months.

6 Technician 1 contradicted this testimony. Regarding his conversation with the injured employee, he stated:

A: Well, I just told him, “It’s a visual PM; let’s go ahead and look it over, and if you find 

anything wrong, write it down; if you don’t, get on with the work here,” you know.

Q: Did you tell him, you know, the equipment was hot and not to touch anything, anything like 

that?

A: Yes. I told him that. I hold him that, you know, the line is hot.

(Tr. 245-46). I do not find Technician 1 a credible witness. He appeared rehearsed and eager to disavow any 

culpability in the accident. Much of his testimony regarding his admonitions to the injured employee not to touch 

anything required prompting by counsel. I give this testimony no weight.

7 Technician 2’s testimony corroborated the injured employee’s account. He testified he had not performed this 

specific inspection before but had done similar orders (Tr. 103). He equivocated whether he instructed the injured 

employee but admitted to doing the same tasks in the same manner as the injured employee (Tr. 103, 113). I find

both Technician 2 and the injured employee credible witnesses. Both are current Nissan employees. Although 

appearing nervous, both gave straightforward answers on direct and cross examination. Their testimony was 

consistent with one another and, for the most part, with prior statements. I credit the testimony of Technician 2 and 

the injured employee.
5

conveyor (Tr. 161).8 He was unaware employees were working on the mezzanine. None of the 

employees working on the robot were part of Supervisor Looney’s crew (Tr. 154). Upon 

completion of his work, the mechanic went to the main control panel and restored power at the 

master start switch to advance the unit on which he had been working (Tr. 161; Exh. C-12). A 

buzzer sounded when power was restored to the conveyor. Neither the injured employee nor 

Technician 2 heard it or understood it signaled startup of the conveyor on which they were 

working (Tr. 106, 124; Exh. C-6). Because Supervisor Looney’s crew had flagged the proximity 

switches, the restoration of power at the master start switch caused the conveyor to move. At the 

moment the conveyor began to move, the injured employee had his hand on a belt. His hand was 

pulled into the conveyor, amputating three fingers (Exhs. C-1; C-12; Tr. 138). 

As a result of the amputation, the injured employee was unable to work for two months 

(Tr. 138). Upon his return, Nissan issued the injured employee a verbal disciplinary notice for 

not following work procedures (Tr. 196; Exh. R-2). No one else was disciplined for their actions 

surrounding the accident.

Nissan timely notified the Secretary about the amputation. CSHO Oglesby of the 

Jackson, Mississippi, Area Office conducted an investigation into the accident beginning on 

December 2, 2016. CSHO Oglesby determined Nissan had provided no warning to employees 

working on the mezzanine level of the startup of the conveyor. He also concluded neither 

Technician 2 nor the injured employee had been trained on lockout of the conveyor. On the 

basis of these findings, CSHO Oglesby recommended two serious citations be issued to Nissan. 

Nissan timely contested both citations and the proposed penalties, bringing the matter before the 

Commission.

DISCUSSION

The Secretary has the burden of establishing the employer violated the cited standard. To 

prove a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

 

8 Maintenance Manager Schuetzle testified the contract mechanic told him he had not locked out the upper conveyor

(Tr. 223). Nor would doing so be necessary in the area in which the contract mechanic was working (Tr. 223-24). 

According to Supervisor Looney, they discovered after the accident the employees working on the robot had wanted 

to test the conveyor so they “took their locks off and started the line.” (Tr. 161) Muthu Viswanathan, safety 

manager for the Canton facility, testified the contract mechanic had locked out the conveyor at the master control 

panel (Tr. 206). The contract mechanic did not testify and no prior statements from him were submitted into the 

record. I cannot determine on this record which portion of the conveyor the contract mechanic had locked out. The 

record establishes only that the conveyor had been deenergized at the main disconnect.
6

the cited standard; (3) employees had access to the violative condition; and (4) the cited 

employer either knew or could have known with the exercise of reasonable diligence of the 

violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Item 1, Citation 1: Alleged Violation of 29 C.F.R. § 1910.147(c)(9)

Item 1, Citation 1, alleges a violation of the standard at 29 C.F.R. § 1910.147(c)(9) which 

states, 

Notification of employees. Affected employees shall be notified by the employer 

or authorized employee of the application and removal of lockout devices or 

tagout devices. Notification shall be given before the controls are applied, and 

after they are removed from the machine or equipment.

As amended9, Item 1, Citation 1, reads:

29 CFR § 1910.147(c)(9): Affected employees were not notified before and after 

lockout and/or tagout devices were applied.

b. Body Shop Conveyors – On or about July 31, 2016, affected employees were 

exposed to amputation hazards when adequate notice was not provided before and 

after lockout/tagout devices were applied. 

The Secretary contends Nissan failed to notify the technicians working on the mezzanine of the 

removal of the lockout devices and reenergization of the conveyor, resulting in its unexpected 

startup.

Applicability of § 1910.147(c)(9)

The cited standard falls under the regulation addressing control of hazardous energy or 

the lockout/tagout standard. The lockout/tagout standard “covers the servicing and maintenance 

of machines and equipment in which the unexpected energization or startup of the machines or 

equipment, or release of stored energy, could harm employees.” 29 C.F.R. § 1910.147(a)(1)(i). 

The standard defines “serving and maintenance” 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, where the employee may be 

exposed to the unexpected energization or startup of the equipment or release of 

hazardous energy.

 

9

Item 1, Citation 1, originally alleged a violation of § 5(a)(1) of the Act or the General Duty Clause. By order of 

March 8, 2018, Item 1, Citation 1, was amended to allege a violation of the standard at § 1910.147(c)(9). The 

Secretary moved to amend the date of the alleged violation at the start of the hearing. That motion was granted over 

Nissan’s objection.
7

29 C.F.R. § 1910.147(b). The Secretary’s burden to establish applicability of the standard is 

twofold. The Secretary must establish the activities performed by the employees fell within the 

category of activities recognized as servicing or maintenance. The Secretary must also show that 

activity exposed those employees to the hazard of unexpected energization or startup of the 

equipment.

There is no dispute the technicians and contract mechanics work duties involve 

performing servicing and maintenance work on the equipment at the Nissan Canton facility that, 

under certain circumstances, expose them to the unexpected energization or startup of 

equipment. The technicians were performing a preventive maintenance inspection. The contract 

mechanic was replacing a motor on a robot. As evidenced by the accident, the technicians were 

actually exposed to the unexpected startup of the conveyor by the contract mechanic. Nissan 

does not dispute the contract mechanic was performing work that required lockout. The standard 

applies to the work being performed on the day of the accident.

With regard to applicability of § 1910.147(c)(9), the inquiry does not end there. The 

Secretary must also establish the technicians were affected employees, triggering Nissan’s 

notification obligation under the cited standard. The standard defines an affected employee as 

An employee whose job requires him/her to operate or use a machine or 

equipment on which servicing or maintenance is being performed under lockout 

or tagout, or whose job requires him/her to work in an area in which such 

servicing or maintenance is being performed.

29 C.F.R. § 1910.147(b). In the preamble to the final rule, the Secretary further clarified,

If any employee must utilize the energy control procedure, that employee is 

considered to be an “authorized employee.” By contrast, an “affected employee” 

is one who does not perform the servicing or implement the energy control 

procedure, but whose responsibilities are performed in an area in which the 

energy control procedure is implemented and servicing operations are performed 

under that procedure.

Control of Hazardous Energy Sources, 54 FR 36644-01 (September 1, 1989) at p. 36665. The 

Secretary contends the technicians inspecting CP-M7 were affected employees because the 

conveyor had been locked out as part of the maintenance being performed by the contract 

mechanic. Nissan contends the injured employee10 was not an affected employee because his job 

 

10 Nissan incorrectly focuses exclusively on the injured employee. The Secretary contends Technician 2 and the 

injured employee were exposed to the hazard. Nissan’s argument with regard to whether the injured employee was 

an affected employee would apply equally to both allegedly exposed employees.
8

did not require him to operate or use the equipment being serviced, nor was he in an area in 

which servicing or maintenance was being performed. 

In his brief, the Secretary notes the status of the technicians as either authorized or 

affected employees may be confused (Secretary’s brief at p. 9, n. 4). Unfortunately, the record 

as a whole provides too few facts upon which to resolve that confusion. The conveyor is used to 

transport auto bodies along the stages of production. The mezzanine level containing CP-M7 is a 

transfer point along the production line (Tr. 218). No production takes place on the mezzanine

level (Tr. 218). The process of moving the auto bodies is automated. The technicians were not 

employees whose “job[s] require[] him/her to operate or use” the conveyor they were inspecting.

Nor does the record establish the technicians were working in an area in which lockout 

had been implemented and servicing or maintenance was being performed. The Secretary 

specifically refers to the servicing work being performed by the contract mechanic. Although he 

was performing servicing work, the contract mechanic was not working on the conveyor or in the 

area in which the technicians were working. Several witnesses consistently testified the contract 

mechanic was repairing one of seven robots in “body main respot.” (Tr. 161; 210; 231) This 

area is on the main level of the facility. The record contains no explanation of what production 

work is performed by these robots in this area11 or, importantly, the relationship of the robot to 

the conveyor. 

The Secretary did not argue, and the record does not establish, the conveyor system is a 

single machine such that lockout of the entire conveyor was necessary to work on any part of it. 

See Secretary v. Action Electric Company, 868 F.3d 1324, 1330 (11th Cir. 2017). The area in 

which the contract mechanic was working was described as a transfer point along the conveyor 

to CP-M7 (Tr. 211). The conveyor system has a main power disconnect that shuts down power 

to the entire conveyor system (Exh. R-1). Sections or stages of the conveyor can be separately 

locked out (Tr. 202; 206; 223-24; Exh. R-1). On the day of the accident, the conveyor had been 

shut down at the main power disconnect (Tr. 199; 206; 231-32). CP-M7 was deenergized as a 

result. What is not established on this record is whether the contract mechanic had locked out the 

conveyor at the main power disconnect or only on the stage at which he was working. To 

perform his work on the robot, the contract mechanic could have, and may have, locked out at 

the local disconnect (Tr. 224). The Secretary failed to establish CP-M7 had been locked out, 

 

11 There is a passing reference to the area being a welding area (Tr. 211). 
9

only that it had been deenergized. The requirement to notify affected employees of the removal 

of lockout does not apply under the circumstances.12

Because the record fails to establish applicability of the cited standard, Item 1, Citation 1, 

is VACATED.

Item 2, Citation 1: Alleged Violation of § 29 C.F.R. § 1910.147(c)(7)(i)

Item 2, Citation 1, alleges a violation of the standard at 29 C.F.R. § 1910.147(c)(7)(i). 

Section 1910.147(c)(7) covers training requirements that are to be included in an employer’s 

energy control program. The cited subpart of § 1910.147(c)(7) states, 

The employer shall provide training to ensure that the purpose and function of the 

energy control program are understood by employees and that the knowledge and 

skills required for the safe application, usage, and removal of the energy controls 

are acquired by employees.

Item 2, Citation 1, alleges a violation of that standard as follows:

Body Shop CP-M7 Overhead conveyor – On or about July 31, 2016, two 

maintenance technicians tasked to perform a PM on the CP-M7 overhead 

conveyor were not adequately trained on the specific lockout/tagout procedures 

for the conveyor system.

The Secretary contends Nissan failed to train the two technicians working on the mezzanine on 

the procedures for locking out CP-M7.

Applicability of § 1910.147(c)(7)(i)

As previously noted, there is little dispute, Nissan technicians perform work that is 

covered by the lockout standard. The Secretary contends the technicians were performing 

servicing and maintenance work on the day of the accident, as that term is defined in the 

standard. In its brief, Nissan did not argue inapplicability of the standard. 

Inspection of equipment is specifically included in the definition of servicing and 

maintenance found at § 1910.147(b). The Commission has held where an employee is 

“inspecting equipment when it is stationary, the standard requires deenergization and application 

of lockout procedures.” General Motors Corp., 22 BNA OSHC 1019, 1041 (Nos. 91-2834 and 

91-2950, 2007). The inspection being conducted by the technicians was done while the 

conveyor was stationary and met the first part of the definition of servicing and maintenance. 

 

12 Exposure of the technicians to the unexpected energization of CP-M7 as a result of the contract mechanic’s restart 

of the conveyor would appear to be the type of exposure § 1910.147 was intended to prevent (See 54 FR at 36647-

48). The fault of the Secretary’s case is his failure to cite an appropriate standard. On this I agree with Nissan, the 

Secretary has tried to fit a square peg into a round hole.
10

Addressing the applicability of the training requirements of the lockout standard in 

General Motors, the Commission held, 

Where an employee’s job assignment includes equipment servicing or 

maintenance, and it is reasonably predictable that the employee will encounter the 

hazard of unexpected energization while performing such work...the 

requirements of the lockout standard apply and training is required.

22 BNA OSHC at 1030. For the reasons that follow, the evidence establishes that exposure was 

reasonably predictable and training the technicians was required.

To establish exposure was reasonably predictable the Secretary must “show that it is 

reasonably predictable either by operational necessity or otherwise (including inadvertence), that 

employees have been, are, or will be in the zone of danger.” Delek Ref., Ltd., 25 BNA OSHC 

1365, 1376 (No. 08-1386, 2015) (citing id.) vacated in part on other grounds, 845 F.3d 170 (5th

Cir. 2016); see also Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980); Gilles & 

Cotting, 3 BNA OSHC 2002 (No. 504, 1976). The zone of danger is the “area surrounding the 

violative condition that presents the danger to employees.” Boh Bros. Constr. Co., LLC, 24 BNA 

OSHC 1067, 1085 (No. 09-1072, 2013) (citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 

(No. 91-2107, 1995)). The technicians’ assignment took them to the mezzanine level that 

contained CP-M7. The assignment sheet lists as tasks to be performed, among others, to “clean 

and inspect the condition of proximity switches;” ensure the proper alignment of “all fasteners 

and mounting bolts;” and to visually inspect all exposed cable and connectors and “make sure all 

connections are seated properly and locked in place if applicable.” (Exh. R-5). Supervisor 

Looney provided no guidance to the technicians as to how they were to perform the tasks listed. 

Nor was the assignment sheet clear as to the requirements of the job.13 As the photographs of the 

area show, cleaning the proximity switches would have placed the technicians in proximity to the 

exposed belts14 of the conveyor or in the zone of danger (see Exhs. C-3 and C-4); Tr. 121-22).

15

 

13 As evidence of this lack of clarity, Manager Schuetzle testified the list included inspecting equipment that was not 

part of CP-M7 (Tr. 221-23).

14 Nissan repeatedly refers to the injured employee bypassing guards to reach the belt. As shown in the photographs 

of the area, the belt the injured employee was checking was not covered in a manner that required he bypass or 

remove a guard (Tr. 43-44; Exhs. C-3 and C-4). Portions of the belt appear exposed. The injured employee 

conceded he reached over the guard (Tr. 136). The guard did not prevent the injured employee from grabbing the 

belt.

15 Safety Director Viswanathan, conceded the assignment required cleaning the proximity switches (Tr. 201). I 

found Manager Shueltzle’s testimony suggesting cleaning the proximity switches could be done by putting a rag on 

a stick and swatting at it (Tr. 234) an unpersuasive attempt to explain away unfavorable documentary evidence.
11

In addressing employee exposure, Nissan focuses on the circumstances leading to the 

injury. This focus is misplaced. It is well recognized the Act is “designed to encourage 

abatement of hazardous conditions themselves, [] rather than to fix blame after the fact for a 

particular injury[.]” Chaplin Petroleum Co. v. OSHRC, 593 F.2d 637, 642 (5th Cir, 1979). 

Whether the technicians were required to touch the belts of the conveyor is not dispositive of the 

issue of access to the zone of danger. The standard is intended to protect employees from 

exposure to a hazard as the result of intentional conduct or inadvertence. The work assignment 

placed the technicians on the mezzanine, near the belts of the conveyor. The record establishes 

the technicians had access to the hazardous condition notwithstanding the specific conduct that 

resulted in the injury.

The contract mechanic was unaware employees were assigned to work on the mezzanine 

level when he restarted the conveyor. The technicians were unaware the conveyor had been 

restarted. The technicians were exposed to unexpected startup of the conveyor. The standard 

applies to the work performed by the Nissan technicians.

Violation of § 1910.147(c)(7)(i)

The cited standard sets out the employer’s obligation for initial training about its lockout 

program and procedures. The standard was written as a performance-oriented standard “in order 

to deal with the wide range of workplaces covered by the standard.” 54 FR at 36673. Employers 

may “use whatever method he/she feels will best accomplish the objectives of the training.” 54 

FR at 36674. It sets out different training obligations for the different classes of workers covered 

under the standard.16

 

16 The standard requires an “authorized employee,” defined as “a person who locks out or tags out machines or 

equipment in order to perform servicing or maintenance on that machine or equipment” to be trained “in the 

recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the 

workplace, and the methods and means necessary for energy isolation and control.” 29 C.F.R. §§ 1910.147(b) and 

1910.147(c)(7)(i)(A). For affected employees, the standard requires instruction “in the purpose and use of the 

energy control procedure.” 29 C.F.R. § 1910.147(c)(7)(i)(B). The standard’s preamble further clarifies 

in order to provide adequate information, any training program under this standard will need to 

cover at least three areas: The employer’s energy control program, the elements of the energy control 

procedure which are relevant to the employee’s duties, and the requirements of this Final Rule. The 

details will necessarily vary from workplace to workplace, and even from employee to employee 

within a single workplace, depending upon the complexity of the equipment and the procedure, the 

employee’s job duties and their responsibilities under the energy control program, and other factors. 

Paragraphs (c)(7)(i) (A), (B), and (C) of the standard establish the amount of training that is required 

for the three groups of employees: “authorized” employees, “affected” employees, and all “other” 

employees. The relative degree of knowledge required by these three employee groups is in 

descending order, with the requirements for authorized employees demanding the most effort in 
12

The plain meaning of the terms of the cited standard provide guidance as to the objective 

of initial training. Employees must receive training sufficient to ensure they “acquire” the 

“skills” necessary for safe application, usage, and removal of energy controls. To acquire means 

to “get as one’s own” or “to come to have as a new or added characteristic, trait, or ability.” 

Merriam Webster Dictionary (2018). A skill is the “ability to use one’s knowledge effectively 

and readily in execution or performance.” Id. Initial training under the standard must give 

employees the ability to effectively and readily perform lockout procedures applicable to their 

assignments. This would include knowing when lockout is required and how to implement it.

The Secretary contends the technicians were inadequately trained on Nissan’s lockout 

program and procedures as they specifically relate to CP-M7. Nissan contends it provided 

sufficient initial training under the standard by providing an introductory video that covered all 

of the elements enumerated in the standard. Even if that video was insufficient, Nissan argues it 

provided additional training including 14-weeks of training at its training center and six shifts of 

on-the-job training shadowing an experienced technician.

It is undisputed the technicians watched the video on Nissan’s lockout program contained 

in Exhibit C-10. The video, which is approximately 10 minutes long, is an overview of the 

concepts of energy isolation and lockout. The video is too general to satisfy the requirements of 

the standard. It lists the six steps Nissan requires for proper lockout, but does not relate those to 

any particular equipment It shows the process of attaching locks to disconnects and to doors to 

caged areas, but does not identify any of the equipment. It provides a list of possible energy 

sources, but does not identify to what equipment in the Canton facility those energy sources may 

apply. It explains Nissan uses placards containing disconnect procedures (See, e.g., Exh. R-1), 

but does not explain how to read these placards. The video does not contain sufficient 

 

training. Because authorized employees are charged with the responsibility for implementing energy 

control procedures, it is important that they receive training in recognizing and understanding all 

potentially hazardous energy sources that they might be exposed to during their work assignments, 

and that they also be trained in the use of adequate methods and means for the control of such energy 

sources. These employees are the ones authorized to implement the energy control procedure and 

to perform servicing of the machine or equipment. Therefore, they need extensive training in aspects 

of the procedure and its proper utilization, together with all relevant information about the 

equipment being serviced.

54 FR at 36673-74. 
13

information to ensure the technicians had “the skills required” to utilize Nissan’s energy control 

procedures at the Canton facility.17

Nissan’s training does not end with the video. The record establishes during the 14-week 

off-site training, Nissan provided technicians with the opportunity to learn to how to apply locks 

using mock-ups of the robotic cells and other “trainer boards.” (Tr. 111-12,127, 215). 

Technicians worked for six shifts with a more experienced technician to learn various 

assignments (Tr. 100, 149).18 It is not clear how, or whether, Nissan determined its employees 

understood or had acquired “the knowledge and skills required for the safe application, usage, 

and removal of the energy controls” once this training was complete.19

In contrast to the evidence describing Nissan’s training procedures, the Secretary 

presented unrebutted evidence Nissan did not train the technicians inspecting CP-M7 on July 31, 

2016, when, or how, to lockout CP-M7 (Tr. 118, 134, 161). There is no evidence the technicians 

were told under what circumstances lockout of CP-M7 was required. 20 The technicians could 

have locked out CP-M7 at the main disconnect or locally on the mezzanine level (Tr. 201). 

Technician 2 and the injured employee were not aware of this. Manager Looney conceded he 

had not provided this information to either (Tr. 149; 153). Technician 2 and the injured 

employee did not know that upon restart of CP-M7 a buzzer would sound (Tr. 106). The injured 

 

17 Nissan relies on Chairman Railton’s opinion in Timken Co., 20 BNA OSHC 2034 (No. 97-1457, 2004) in arguing 

its 10-minute video was sufficient under the standard. In Timken, the two participating Commissioners, unable to 

reach consensus, vacated the direction for review, resulting in the ALJ’s decision affirming the alleged violation of 

the training standard becoming a final order of the Commission with the precedential value of an unreviewed ALJ 

decision. Id. at 2035. The subsequent Commission decision in General Motors, cited herein, did not adopt 

Chairman Railton’s position with regard to the requirements for initial training under the standard.

18 Contrary to Nissan’s contention in its brief, there is no evidence it provided either Technician 2 or the injured 

employee with its Safety and Health Directive on lockout prior to the accident. Nissan did not provide the 

technicians with its employee handbook, rather it was available to employees “online.” (Tr. 190).

19 Safety Director Viswanathan testified the online training, where Nissan suggests such testing might have 

occurred, was refresher training the technicians would not have had as of the date of the accident (Tr. 180-81, 185). 

The injured employee testified he took some online training during his 14-weeks at the training center (Tr. 129). He 

was unable to say whether any of that online training involved safety issues (Tr. 130).

20 Supervisor Looney did not appear to know whether the technician’s assignment required CP-M7 be locked out. 

When specifically asked, he equivocated:

Q: And because it was a visual only PM, they didn’t need to lock out, did they?

A: They did not—oh, excuse me. No. Now, parts of that PM, they still should have locked out, 

because they had to inspect – you know, there’s a gray area there on the proximity switches, so 

they probably should have locked out anyway. But if they were going to touch the machinery, 

they should have locked out.

(Tr. 162. He testified the belts could have been checked by an ultrasonic device rather than by hand (Tr. 164). He 

later clarified, regardless of the method used, checking belts required lockout (Tr. 165).
14

employee was unaware of the consequence of flagging the proximity switches (Tr. 136). Both 

knew in general how to lockout an electric motor. Neither knew how to lockout CP-M7’s motor.

Nissan contends it would have provided training on lockout of CP-M7 to the technicians 

had their work required it. The record does not support this contention. Safety Director 

Viswanathan, testified that to ensure employees acquire the skills necessary to perform lockout, 

Nissan’s Safety and Heath Directive of February 25, 2013, requires machine-specific training be

done by supervisors in a hands-on manner (Tr. 173, 186; Exh. C-7). Nissan did so because 

“there’s lots of pieces of equipment, and you have to lock out differently for different equipment. 

So it’s all decided based on the job duties of the employee.” (Tr. 189). Safety Director 

Viswananthan admitted he did not monitor whether supervisors were performing this training 

(Tr. 174). Supervisor Looney was unaware of this obligation. He testified he was not required 

to provide any training on lockout to the technicians (Tr. 149). When assigning a project that 

required lockout, he testified he did not go over lockout with the employee in advance (Tr. 161).

There is no evidence Nissan’s training program included machine-specific lockout training in 

practice.

The standard requires initial training be sufficient for employees to acquire the skills

necessary to perform safe lockout. For the technicians working on CP-M7, Nissan’s training did 

not meet this standard.

Employee Exposure

The evidence establishes the technicians were actually exposed to the hazard of 

unexpected startup of the conveyor. Even if the injured employee had never placed his hand on 

the belt, he and Technician 2 were exposed to that hazard. 

Employees may come within the zone of danger “while in the course of assigned 

working duties, personal comfort activities while on the job or their normal means 

of ingress-egress to their assigned workplaces.” Gilles & Cotting, Inc., 3 BNA 

OSHC 2002, 2003 (No. 504, 1976); Donovan v. Adams Steel Erection, Inc.,766 

F.2d 804, 812 (3d Cir. 1985) (“‘access,’ not exposure to danger is the proper 

test”). The Secretary need not show it was certain that employees would be in the 

zone of danger, but he must show that exposure was more than theoretically 

possible. Fabricated Metal Prods., Inc. 18 BNA OSHC 1072, 1074 (No. 93-1853, 

1997); Phoenix Roofing, 17 BNA OSHC at 1079; Kaspar Wire Works, Inc., 18 

BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “‘reasonably 

predictable’ that an employee would come into contact with the unguarded belt 

and pulley either while attempting to reposition the fan, or inadvertently while 

passing nearby”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).
15

Calpine Corp., 27 BNA OSHC 1014, 1016 (No. 11-1734, 2018). The technicians were on the 

mezzanine working in proximity to the conveyor’s moving parts. As previously discussed, 

taking into consideration the assigned work task, the technicians would have been in the zone of 

danger.

Employer Knowledge

To establish employer knowledge of a violation the Secretary must show the employer 

knew or with the exercise of reasonable diligence could have known of a hazardous condition. 

Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). Because 

corporate employers can only obtain knowledge through their agents, the actions and knowledge 

of supervisory personnel are generally imputed to their employers, and the Secretary can make a 

prima facie showing of knowledge by proving a supervisory employee knew of or was 

responsible for the violation. Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598, 

1984); see also Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986) (the 

actual or constructive knowledge of an employer’s foreman can be imputed to the employer); see 

also W.G. Yates & Sons v. OSHRC, 459 F.3d 604, 607 (5th Cir. 2006). Constructive knowledge 

is shown where the Secretary establishes the employer could have known of the cited condition 

with the exercise of reasonable diligence. Par Electrical Contractors, Inc., 20 BNA OSHC 

1624, 1627 (No. 99-1520).

Whether an employer was reasonably diligent involves a consideration of several 

factors, including the employer’s obligation to have adequate work rules and 

training programs, to adequately supervise employees, to anticipate hazards to 

which employees may be exposed, and to take measures to prevent the occurrence 

of violations.

Id. citing Precision Concrete Constr. 19 BNA OSHC 1404, 1407 (No. 99-707, 2001). 

According to Nissan’s Safety and Health Directive on lockout, an employee’s immediate 

supervisor is responsible for assuring the employee is “properly trained in lockout/tagout 

procedures.” (Exh. C-7, p. 1). The Safety Department is responsible for conducting general 

lockout training, while the supervisor is responsible for machine-specific training (Exh. C-7, p. 

2). Based on his testimony, this training obligation for supervisors was unknown to Supervisor 

Looney (Tr. 149; 161).21 Nor would his failure to perform this training have been known to 

 

21 It is undisputed Supervisor Looney was the immediate supervisor of Technician 1, Technician 2, and the injured 

employee. 
16

Safety Director Viswanathan, as he testified he did not monitor supervisors to ensure they 

conducted machine-specific training (Tr. 174). The only documentary record of training in the 

record is that showing the technicians watched the 10-minute introductory video (Exh. C-8). The 

evidence demonstrates a lack of diligence on the part of Nissan regarding the training required 

by the standard. Nissan had constructive knowledge of its failure to train the technicians on 

lockout procedures for CP-M7. See General Motors, 22 BNA OSHC at 1031.22

The Secretary has met his burden to establish Nissan violated § 1910.147(c)(7)(i).

Unpreventable Employee Misconduct

To prevail on the affirmative defense of unpreventable employee misconduct, an 

employer must show that it has (1) established work rules designed to prevent the violation, (2) 

adequately communicated those rules to its employees, (3) taken steps to discover violations, and 

(4) effectively enforced the rules when violations have been discovered. See, e.g., Stark 

Excavating, Inc., 24 BNA OSHC 2218 (Nos. 09-0004 and 09-0005, 2014), citing Manganas 

Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). The affirmative defense of 

employee misconduct applies in situations in which the behavior of the employee creates the 

violative condition. Nissan mistakenly focuses on the injured employee’s failure to perform his 

assignment properly, rather than on the violative condition, i.e. the failure to train.

To prevail on the affirmative defense of unpreventable employee misconduct for the 

alleged violation of § 1910.147(c)(7)(i), Nissan would have to establish it had a rule designed to 

prevent the failure to train employees on lockout procedures. Nissan does have such a rule 

contained in its Safety and Health Directive on lockout (Exh. C-7). That rule requires immediate 

supervisors to train employees on machine-specific lockout procedures. Nissan failed to present 

any evidence that rule was communicated to supervisors. It also failed to establish it monitored 

to ensure that training was being provided. To the contrary, Safety Director Viswanathan 

testified he did no monitoring of this requirement. Nissan documented no training beyond the 

 

22 To establish knowledge, the Secretary need not show Nissan knew its failure to train was hazardous. 

Under Commission precedent, “[t]he knowledge element is directed to the physical conditions that 

constitute a violation, and the Secretary need not show that an employer understood or 

acknowledged that the physical conditions were actually hazardous.” Danis Shook Joint Venture 

XXV, 19 BNA OSHC 1497, 1501, 2001 CCH OSHD ¶ 32,397, p. 49,865 (No. 98-1192, 2001) 

(citation omitted), aff'd, 319 F.3d 805 (6th Cir. 2003).

Boh Brothers Construction Co., LLC, 24 BNA OSHC at 1074.
17

initial 10-minute video containing an overview of lockout.23 Nissan failed to establish it 

communicated its training obligations to supervisors or took steps to ensure employees were 

properly trained on lockout procedures applicable to their work assignments.

Nissan failed to establish the violation of § 1910.147(c)(7)(i) was the result of 

unpreventable employee misconduct.

Characterization

The Secretary alleges the violation was serious. A violation is serious when “there is a 

substantial probability that death or serious physical harm could result” from the hazardous 

condition at issue. 29 U.S.C. § 666(k). The Secretary need not show that there was a substantial 

probability that an accident would occur; only that if an accident did occur, death or serious 

physical harm would result. Training employees on lockout is necessary to ensure they know 

how to protect themselves from exposure to unexpected startup of machinery. As demonstrated 

by the injured employee’s partial amputation, the likely injury should an employee be in the zone 

of danger when the conveyor restarted unexpectedly is serious physical harm. Item 2, Citation 1,

is properly characterized as a serious violation.

Penalty Determination

The Secretary proposed a penalty of $12,675.00 for Item 2, Citation 1. The Commission, 

in assessing an appropriate penalty, must give due consideration to the gravity of the violation 

and to the size, history and good faith of the employer. See § 17(j) of the Act. The Commission 

is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-

1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 17 BNA OSHC 1135, 

1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but places no 

restrictions on the Commission’s authority to raise or lower penalties within those limits.”), aff’d, 

73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the Commission gives due consideration to 

all of the statutory factors with the gravity of the violation being the most significant. OSH Act 

§ 17(j), 29 U.S.C. § 666(j); Capform Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), 

aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished). “Gravity is a principal factor in a penalty 

determination and is based on the number of employees exposed, duration of exposure, 

 

23 Failure of a party to present evidence under its control raises an inference that evidence would not support its 

position. Capeway Roofing Systems, Inc., 20 BNA OSHC 1331 (No. 00-1968, 2003) (citations omitted); see also 

Regina Contr. Co., 15 BNA OSHC 1044, 1049 ((No. 87-1309, 1991).
18

likelihood of injury, and precautions taken against injury.” Siemens Energy and Automation, 

Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). 

The gravity of the violation is high. Unexpected startup of the conveyor exposed the 

technicians to serious injury over the period required to perform the preventive maintenance 

inspection. Nissan failed to take precautions to ensure the technicians were protected from this

hazard. The mechanic performing maintenance on the robot was unaware employees were on 

the mezzanine level. Neither the technicians nor their supervisor was aware the mechanic had 

shut down the conveyor or that he would restart it while they were inspecting CP-M7. This lack 

of coordination increased the likelihood of injury to the technicians, warranting a high gravity 

based penalty.

In assessing a penalty, I have taken into account mitigating factors. Nissan is a large 

employer. This facility had over 6,000 employees. Nissan is not entitled to consideration for 

size. CSHO Oglesby testified Nissan has received a serious citation in the past (Tr. 67). The 

record contains no more detail regarding Nissan’s citation history. With regard to good faith, I 

find the serious discrepancies between Nissan’s written policies regarding training and its 

training practices to weigh against a finding of good faith.

Based upon the forgoing considerations, a penalty of $12,675.00 is assessed.

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.
19

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item 1, Citation 1, alleging a serious violation of 29 C.F.R. § 1910.147(c)(9) is 

VACATED;

2. Item 2, Citation 1, alleging a serious violation of 29 C.F.R. § 1910.147(c)(7)(i) is 

AFFIRMED and a penalty of $12,675.00 assessed.

SO ORDERED.

/s/ Heather A. Joys

 

Date: July 20, 2018 Administrative Law Judge

 Atlanta, Georgia