THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS 

PENDING COMMISSION REVIEW

United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, D.C. 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 18-0701 

MIDVALE PAPER BOX COMPANY, INC., 

Respondent. 

DECISION AND ORDER 

APPEARANCES: 

For the Complainant: 

M. del Pilar Castillo, Esq. 

U.S. Department of Labor 

New York, New York 

For the Respondent: 

Michael H. Rosenthal, Esq. 

RLB Law Group LLC 

Philadelphia, Pennsylvania 

BEFORE: William S. Coleman 

Administrative Law Judge 

INTRODUCTION 

The Respondent, Midvale Paper Box Company, Inc. (Midvale), operates a plant in Plains 

Township, Pennsylvania, where it manufactures paper boxes for retail use, such as department 

store boxes, car part boxes, pizza boxes, and the like. Midvale uses a variety of machines that 

print, cut, fold, and glue paperboard to form the paper boxes. Most of these machines were 

originally manufactured in the 1970’s or before. (T. 736). 
 

 

 

 

 

 

 

 

The president and owner of Midvale is Mr. David Frank, who around 1999 acquired the 

then-shuttered plant and the machinery within. The plant had been used for manufacturing paper 

boxes for about twenty years before it had been shut down and then acquired by Frank. Upon 

reopening the plant, Midvale used the same production machinery that the prior plant operator had 

used for making paper boxes. (T. 512). 

Between October 18 and December 14, 2017, a Compliance Safety and Health Officer 

(CO) from the Occupational Safety and Health Administration (OSHA) went to Midvale’s plant 

on nine separate occasions to conduct an inspection and investigation of Midvale’s plant and 

operations. (T. 37). The reason OSHA originally scheduled this inspection was to assess whether 

Midvale had abated prior violations that had been resolved by a settlement agreement that was 

effective in June 2017. (T. 34-37). Before OSHA commenced the inspection, however, it received 

a complaint about Midvale, and so the scope of the planned inspection expanded to investigate the 

complaint as well. This was OSHA’s fifth inspection of Midvale over a period of about four years. 

(T. 545-46). The prior four inspections had resulted in the issuance of citations to Midvale, each 

of which Midvale resolved by entering into settlement agreements. (Exs. C-1, C-20, C-71 & C77). 

The inspection here resulted in the issuance of three citations on April 17, 2018––one 

serious, one willful, and one repeat––with proposed penalties totaling $201,212. 

The serious citation alleged three grouped violations of design safety standards for electric 

utilization systems (29 C.F.R. §§ 1910.303–.305) and proposed penalties totaling $4,065. 

The willful citation alleged two grouped violations of the “control of hazardous energy 

(lockout/tagout)” (LOTO) standard (§ 1910.147) and one violation of the machine guarding 

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standard for mechanical power-transmission apparatus (§ 1910.219), with proposed penalties 

totaling $132,106. 

The repeat citation alleged one violation of the eye and face protection standard 

(§ 1910.133), one violation of the powered industrial truck standard (§ 1910.178), three grouped 

violations and a fourth separate violation of the machine guarding standard for mechanical powertransmission apparatus (§ 1910.219), three grouped violations of design safety standards for 

electric utilization systems (§§ 1910.303 & 1910.305), and three grouped violations of the hazard 

communication standard (§ 1910.1200), with proposed penalties totaling $65,041. 

Midvale timely contested the citations and proposed penalties, bringing the matter before 

the independent Occupational Safety and Health Review Commission (Commission) under section 

10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (Act). The matter 

was assigned to the undersigned administrative law judge in October 2018. A four-day evidentiary 

hearing was conducted in Wilkes-Barre, Pennsylvania, from April 29 to May 2, 2019. 

Post-hearing briefing was completed on December 19, 2019. 

As described below, certain citation items are vacated, certain citation items are affirmed 

(though two with different classifications than alleged), and penalties totaling $77,901 are 

assessed. 

DISCUSSION 

As stipulated by the parties and as supported and confirmed by the record evidence, the 

Commission has jurisdiction pursuant to section 10(c) of the Occupational Safety and Health Act 

of 1970 (Act), and Midvale is an employer within the meaning of sections 3(3) and 3(5) of the Act. 

(Joint Preh’g Statement, § VI). 

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

of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) 

3 
 

 

 

 

 

 

 

 

 

employees had access to the violative condition; and (4) the cited employer had actual or 

constructive knowledge of the violative condition. Donahue Indus. Inc., 20 BNA OSHC 1346, 

1348 (No. 99-0191, 2003). 

A. Control of Hazardous Energy (LOTO)– 

§ 1910.147(c)(4)(i) & 1910.147(c)(7)(i) 

(“Willful/Serious” Citation 2, Items 1a and 1b) 

1. Prior Inspections and Settlement Agreements 

Before addressing the alleged willful LOTO violations, some background into Midvale’s 

prior inspection, citation, and settlement history provides important context for the citation items 

at issue here. 

Mr. Frank’s Erroneous Understanding 

of LOTO Standard Requirements 

Midvale defends its lockout 1 practices at the time of the October 2017 inspection in large 

part based upon what Mr. David Frank, Midvale’s president, testified the OSHA area 

director (AD), Mark Stelmack, said to him in December 2015 in a meeting at the OSHA area 

office. The purpose of that meeting was to discuss settlement of a citation that the area office had 

issued to Midvale in November 2015, and which included an alleged willful violation of the LOTO 

standard. 2 (T. 475; Ex. C-1 at 13). Mr. Frank testified that his discussion with AD Stelmack led 

him to believe the following: (1) that only “major” service and maintenance activities required 

lockout; (2) that “adjustments or minor repairs” on Midvale machinery did not require lockout; 

1 The terms “lockout” or “locked out” as used in this Discussion carry the meaning assigned 

to the term “lockout” in § 1910.147(b), which is as follows: “Lockout. The placement of a lockout 

device on an energy isolating device, in accordance with an established procedure, ensuring that 

the energy isolating device and the equipment being controlled cannot be operated until the lockout 

device is removed.” 

2 Midvale contested that citation but ultimately accepted the willful LOTO violation in a 

formal settlement agreement that became a final order on June 19, 2017, about four months before 

the commencement of the inspection here. (Ex. C-1 at 23-24; T. 11). 

4 
 

 

 

 

 

 

 

and (3) that lockout was not required to clear frequently occurring paper jams in Midvale’s 

machinery, but rather that Midvale’s practice of simply engaging an “e-stop” to shut down a 

machine to resolve a paper jam was compliant with the LOTO standard. (T. 515-16, 551-52). 

After that meeting, Mr. Frank sent an email on December 18, 2015, to Midvale’s plant 

manager and plant engineer, Mr. John Northwood. In the email, Mr. Frank told Mr. Northwood 

about the meeting with AD Stelmack, stating in part the following: 

I wanted to follow up with one aspect of the conversation I had 

with Mark (area director) as it pertains to Lock out Tag out. Based 

on the information you and I discussed and the subjective nature of 

the OSHA regulation not only for lock [out] tag out but most of their 

regulation, I asked the director point blank to what extent do we have 

to de-energize the equipment relative to Lock Out Tag Out. 

I said to him, that my understanding as it pertains to the 

regulation is that the equipment has to be de-energized electrically, 

hydraulically and Pneumatically if the machine jams up making 

production an impossibility not only in our factory but factories 

throughout the country. I explained that we have kill switches 

through the production line on all our equipment in all departments 

and that the kill switch has to be manually re-set by the operator. 

Only [then] can the operator re-start the machine. Obviously if a 

jam up takes 2 minutes to unjam, and hours to de-energize and 

re-energize as the regulation reads, manufacturing would be 

impossible. 

He said and I paraphrase, ''we understand jam ups occur and 

de-energizing is not practical, but if the machine under goes major 

repair, the machine has to be completely de-energized". Which 

makes complete sense to me. I explained to Mark [that] you are the 

only one authorized to lock out tag out the equipment in all 

[departments].... 

As far as I can tell, Lock Out Tagout is for major repairs and 

regular jam up are covered by the kill switch. 

(Ex. R-36). Mr. Frank did not send a similar communication to AD Stelmack to validate the 

accuracy of either his stated understanding or his “paraphrase” of what AD Stelmack said to him. 

5 
 

 

 

 

 

 

Mr. Frank’s understanding of what AD Stelmack said during their meeting in December 

2015, as he summarized in his email to Northwood, embodied Midvale’s touchstone principles for 

determining when to lockout machinery from the time of that meeting in December 2015 through 

the conduct of the inspection here in late 2017. (T. 519). 

AD Stelmack testified to the matters he discussed with Mr. Frank in their December 2015 

meeting with greater specificity than did Mr. Frank. AD Stelmack’s recollection of what he said 

in the meeting was consonant with the performance-oriented nature of the LOTO standard. See 

Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36644, 36656 (Sept. 1, 

1989) (to be codified at 29 C.F.R. pt. 1910) (noting that the LOTO standard is “written in 

performance-oriented language, providing considerable flexibility for employers to tailor their 

energy control programs and procedures to their particular circumstances and working conditions.) 

AD Stelmack’s recollection also reflected his well-grounded knowledge and years of experience 

in addressing LOTO issues with employers. (T. 468-70, 484-85). 

AD Stelmack had never visited Midvale’s plant, so he had never observed the machines 

that Midvale operates. (T. 477-78). His responses to Mr. Frank’s questions about the LOTO 

standard were couched in broad terms, which was consistent with his lack of familiarity with 

Midvale’s machines. AD Stelmack recalled Mr. Frank complaining that the LOTO standard was 

burdensome. (T. 478). He recalled further that in response to Mr. Frank’s questions about whether 

using only e-stops (which Frank referred to as “kill switches” in his email to Northwood) to stop 

a machine to clear paper jams would conform to the LOTO standard, that he responded generally 

in the negative, but that he also described how machine guarding measures could potentially 

suffice under the LOTO standard’s so-called “minor servicing exception” set forth in 

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§ 1910.147(a)(2)(ii), note. 3 (T. 485-90). Mr. Stelmack recalled that Mr. Frank declared that he 

believed clearing paper jams at Midvale would indeed fit within the “minor servicing exception.” 

In response to this assertion Mr. Stelmack remarked that “all paper jams ... are not the same,” 

although he did not rule out the possibility that clearing some paper jams could fall within the 

minor servicing exception if the requirements of that exception were present. (T. 485-90). 

The undersigned finds AD Stelmack’s account of his discussion with Mr. Frank in 

December 2015 to be far more reliable than Mr. Frank’s recollection. The greater weight of the 

evidence establishes that AD Stelmack did not advise Mr. Frank that the sole use of e-stops to stop 

a machine to clear a paper jam would categorically comply with the LOTO standard. The 

undersigned finds further that AD Stelmack did not communicate to Mr. Frank, either expressly 

or implicitly, that the LOTO standard applied only to “major” service and maintenance activities. 

AD Stelmack’s remarks to Mr. Frank were necessarily nuanced and consonant with the 

performance-oriented nature of the LOTO standard, particularly considering that AD Stelmack 

had no first-hand knowledge of the exact equipment and operations at the Midvale plant. Contrary 

to Mr. Frank’s understanding of what AD Stelmack said to him, it is highly unlikely that AD 

Stelmack communicated a view that is incongruent with the requirements of the LOTO standard. 

Contrary to Mr. Frank’s recollection, the greater weight of the evidence is that AD Stelmack did 

3 A “note” to subparagraph (a)(2)(ii) of the LOTO standard contains what is often referred 

to as the “minor servicing exception,” and it provides: 

Minor tool changes and adjustments, and other minor servicing 

activities, which take place during normal production operations, are 

not covered by this standard if they are routine, repetitive, and 

integral to the use of the equipment for production, provided that the 

work is performed using alternative measures which provide 

effective protection. (See subpart O of this part). 

The reference in the exception to “subpart O” is an express reference to the machine guarding 

standard codified at 29 C.F.R. §§ 1910.211 to 1900.219. 

7 
 

 

 

 

 

 

 

not communicate to him objectively erroneous information on when lockout is required and not 

required. 

Mr. Frank seemingly misinterpreted what Mr. Stelmack said to him in their meeting. It is 

apparent that Mr. Frank was seeking some bright-line rule from AD Stelmack on when to lockout 

machinery. (See T. 556-57). But the performance-oriented LOTO standard is not generally 

susceptible to simplistic rules. Rather, whether the LOTO standard applies depends on the 

equipment and operations present in any given workplace, and whether any given service or 

maintenance activity would expose employees to injury if a machine were not locked out for that 

activity. See 54 Fed. Reg. at 36666 (“If an energy source does not have the capability of causing 

injury to employees, it is not ‘hazardous energy’ within the scope of this standard”). AD 

Stelmack’s necessarily non-categorical responses to many of Mr. Frank’s questions appear to have 

resulted in Mr. Frank believing that the LOTO standard’s requirements were “subjective” (as he 

described in his email to Northwood) and apparently resulted in his erroneously distilling from his 

discussion with AD Stelmack a simplistic bright-line rule that AD Stelmack never articulated or 

implied––that lockout was required only for “major” repairs. 

Mr. Frank’s flawed understanding of the requirements of the LOTO standard persisted to 

the time of the inspection here, which was conducted nearly two years after his December 2015 

meeting with AD Stelmack. That Mr. Frank held this flawed understanding for so long was 

substantially due to his own inaction in failing to retain a qualified safety consultant to perform a 

comprehensive safety audit of the Midvale plant in early 2015, which Midvale had committed to 

do, as is described next. 

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Midvale’s Failure to Retain Safety Consultant to Conduct Audit 

From 2015 thru 2017 

On December 8, 2014, a year before his December 2015 meeting with AD Stelmack, Mr. 

Frank signed an informal settlement agreement (ISA) on behalf of Midvale that resolved a citation 

that OSHA had issued on November 7, 2014. (Ex. C-20). Among other of the ISA’s provisions, 

Midvale committed to (1) engaging a “qualified third party safety consultant to conduct a 

comprehensive safety audit” by February 8, 2015, and (2) implementing the consultant’s 

“reasonable recommendations” no later than June 8, 2015 (unless Midvale requested and OSHA 

granted an extension of that deadline). 4 As part of the discussions leading up to the execution of 

4 The provision pertaining to engaging a safety consultant was set forth in paragraph 5 of 

the ISA, which provided as follows: 

Employer agrees to engage a qualified third party safety consultant to 

conduct a comprehensive safety audit at the cited facility, and to address 

any reasonable safety and/or health hazards identified during the audit. This 

action will be accomplished pursuant to the following schedule: 

a. Employer shall engage a qualified third party safety consultant or firm 

("Safety Consultant") to conduct a comprehensive safety audit at the cited 

facility within sixty (60) calendar days of the signing of this Agreement. 

b. The Safety Consultant shall produce a final report with recommendations 

to Employer within sixty (60) calendar days of when the audit was 

conducted. 

c. Employer shall address the reasonable recommendations in the Safety 

Consultant's final report within sixty (60) calendar days of receipt of the 

final audit report. 

d. Employer shall provide a copy of the Safety Consultant's final audit report 

and certification/documentation of the actions Employer will have taken to 

address the Safety Consultant’s reasonable recommendations within fifteen 

(15) calendar days of addressing the recommendations. 

e. If Employer chooses to address a recommendation in a manner different 

than that [prescribed] by the Safety Consultant, or decides to not implement 

a recommendation made by the Safety Consultant, it shall notify OSHA and 

provide the basis for its decision, within fifteen (15) calendar days of 

addressing the remaining recommendations from the audits. 

f. OSHA will consider reasonable requests by Employer for extensions of 

time related to addressing recommendations in the event a recommendation 

requires a significant capital project or for other extenuating circumstances. 

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the ISA, OSHA informed Midvale that a publicly funded state consultation service that was 

operated by Indiana University of Pennsylvania (IUP) was available to Pennsylvania employers to 

perform safety audits at no cost to the employer. See 29 U.S.C. § 670(d); 29 C.F.R. § 1908.1. 

Midvale intended to use the IUP consultation service to meet its commitment. (T. 359-60, 365). 

However, Midvale’s obligation under the ISA to engage a safety consultant was not contingent on 

IUP agreeing to conduct the audit or on the audit being conducted without cost to Midvale. (T. 

359-60, 370). 

Midvale did not retain IUP (or any other safety consultation service) within the timeframe 

specified in the ISA. (T. 362). On May 29, 2015, more than six months after Midvale signed the 

ISA, OSHA conducted a follow-up inspection of the Midvale plant for the purpose of assessing 

whether Midvale had corrected the violative conditions that had been addressed in the ISA. (T. 

373-74). That inspection resulted in OSHA issuing another citation to Midvale on November 25, 

2015. That citation alleged that Midvale had failed to abate two machine guarding violations that 

Midvale had accepted in the ISA, and it also alleged eleven new violations. (Ex. C-1 at 23). The 

purpose of Mr. Frank’s meeting with the area director in December 2015 described above was to 

discuss this new citation. (T. 475). 

In February 2016, about two months after Mr. Frank’s December 2015 meeting with the 

area director, Mr. Frank first attempted to arrange for IUP to conduct the safety audit that Midvale 

had agreed fourteen months earlier (in December 2014) to have conducted by February 2015. (Ex. 

R-37; Ex. C-68 at 68-70). However, because Midvale had contested the citation that had been 

issued in November 2015, the violations alleged in that citation had not become a final order, and 

so by regulation IUP was not permitted to perform the requested safety audit. 29 C.F.R. 

§ 1908.7(b)(3) (“An onsite consultative visit shall not take place subsequent to an OSHA 

10 
 

 

 

 

enforcement inspection until a determination has been made that no citation will be issued, or if a 

citation is issued, onsite consultation shall only take place with regard to those citation items which 

have become final orders.”). (T. 369; Ex. C-68 at 72-73). 

In May 2017, Midvale and OSHA entered into a formal settlement agreement (FSA) that 

resolved the citation that had been issued in November 2015. One provision of that FSA required 

Midvale to retain a consultant to conduct two audits of the Midvale facility over the following two 

years. (Ex. C-1 at 25). 

Four months after the FSA was executed, AD Stelmack sent Midvale a letter dated 

September 22, 2017, informing Midvale that OSHA had not received Midvale’s notification that 

it had abated the violative conditions identified in the FSA and requesting that this abatement 

information be submitted within five business days. (Ex. C-2). The letter stated further that 

Midvale’s failure to submit the abatement information could result in OSHA conducting a 

follow-up inspection to confirm that the violative conditions had been abated. (Ex. C-2). 

Midvale did not respond to that letter. Consequently, on October 5, 2017, AD Stelmack’s 

area office dispatched the CO to Midvale’s plant to conduct a follow-up inspection to assess 

whether the violative conditions addressed in the FSA had been corrected and to investigate as 

well a recently received complaint. (T. 34-37, 375, 383). When the CO arrived on October 5, 

2017, to commence the inspection, he was turned away because Midvale would not consent to the 

inspection. (Ex. C-3; T. 375). The CO returned to the Midvale plant about two weeks later, on 

October 18, 2017, accompanied by the assistant area director, and the inspection that the CO had 

intended to start on October 5 was formally opened that day. (T. 38-39, 347, 383; Ex. C-6). 

After Midvale learned on October 5, 2017, of OSHA’s intent to conduct the follow-up and 

the complaint inspections, Midvale again contacted the consultative service at IUP to seek 

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assistance, but IUP informed Midvale the next day (October 6, 2017) that in view of the inspection 

that OSHA had attempted to initiate the day before, that IUP would not schedule an audit until that 

intended inspection was concluded. (T. 369-70; Exs. C-3 & R-37). 

Midvale could have certainly retained a qualified safety consultant to conduct the safety 

audit that it had committed in the ISA to have done, even though Midvale would likely have had 

to pay for it. But Midvale never did so. Had Midvale retained a safety consultant as it had 

committed to do in December 2014, the consultant almost certainly would have evaluated 

Midvale’s plant for compliance with the LOTO standard and likely would have made reasonable 

recommendations that Midvale would have been obliged to implement under the terms of the ISA 

of December 2014. If Midvale had implemented the reasonable recommendations of a qualified 

safety consultant, it is likely that Midvale would have developed, documented, and implemented 

a LOTO program that conformed to the LOTO standard, and that Midvale would have avoided the 

violations for which it was cited in the citation that was issued in November 2015, which 

precipitated Mr. Frank’s meeting with AD Stelmack in December 2015. Midvale’s continuing 

failure to retain a safety consultant to conduct a comprehensive safety audit from December 2014 

through time of the inspection here in late 2017 likely prolonged non-compliant workplace safety 

and health practices and conditions at Midvale’s plant. 

2. Citation 2, Item 1a -- § 1910.147(c)(4)(i) 

The Secretary alleges Midvale violated subparagraph (c)(4)(i) of the LOTO standard 

(§ 1910.147), which provides as follows: “(4) 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.” The Secretary alleges that 

Midvale violated this provision with respect to nine of its machines: three printing, stripping and 

die-cutting machines (identified by the brand name Zerand, and known also as “printers/die 

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cutters”); five gluer machines (originally manufactured by International Paper Box Machine 

Company); and one window-box machine (also originally manufactured by International Paper 

Box Machine Company). 

The bulk of the production at the plant involves the Zerand and the gluer machines, with 

the window-box machine used intermittently. (T. 232-33). The manufacturing process generally 

involves feeding large rolls of paper in the Zerand machines where it is printed with multiple colors 

at multiple print stations and then cut into flat “blanks.” The blanks are then fed through the gluer 

machines, folded, and glued to make a complete box. (T. 662-65). The Zerand machines and the 

gluers are large complex machines. The Zerand machines were estimated to be over 100 feet long 

(T. 699) and the gluers about 70 feet long. (T. 699, 716). 

Item 1a describes the manner that Midvale is alleged to have violated the standard as 

follows: 

The employer does not ensure procedures are developed, 

documented, and utilized for the control of potentially hazardous 

energy. This violation was most recently observed on or about 

October 18, 2017 ... when the employer did not develop, document 

and utilize energy control procedures while employees performed 

servicing and maintenance activities including but not limited to 

adjusting, cleaning, replacing parts, and clearing jams on the 

following equipment: 

1. International Paper Box Machine Company Swifty Right 

Angle Model FZ Gluers (Serial Nos. 397, 602, 639) 

2. International Paper Box Machine Company Swifty Right 

Angle Model KB Gluers (Serial Nos. 101, 102) 

3. International Paper Box Machine Company Window 

Machine Model 5A (Serial No. 146) 

4. Zerand Printing, Stripping, and Die Cutting Machines (#1, 

#2, #3) 

The Secretary argues that Midvale did not comply with § 1910.147(c)(4)(i) in multiple 

ways with respect to all nine identified machines. 

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Adequacy of Written LOTO Procedures 

The Secretary first argues that Midvale’s written energy control procedures were deficient 

in that the content of the procedures did not meet the requirements of § 1910.147(c)(4)(ii). (Sec’y 

Br. 18-19). Subparagraph (c)(4)(ii) of the LOTO standard requires in part that an employer’s 

written LOTO procedures “clearly and specifically outline the scope, purpose, authorization, rules, 

and techniques to be utilized for the control of hazardous energy.” 

Midvale first developed and documented written energy control procedures in early 2016. 

Midvale did this in response to a prior willful violation of § 1910.147(c)(1) that the Secretary 

originally alleged in November 2015. Midvale contested that violation, and it did not become a 

final order until June 2017 after Midvale had accepted the violation in a formal settlement 

agreement. There is substantial evidence that the content of Midvale’s written procedures failed 

to meet the requirements of subparagraph (c)(4)(ii). (T. 151). However, the citation item here 

does not allege a violation of subparagraph (c)(4)(ii). For the Secretary to prove that Midvale did 

not comply with the requirements of the provision that the Secretary has alleged that Midvale 

violated (subparagraph (c)(4)(i)) the Secretary was required to show that Midvale failed to either 

“develop,” or “document,” and/or “utilize” procedures for the control of potentially hazardous 

energy. The Secretary did not prove that Midvale failed to “develop” or “document” LOTO 

procedures because Midvale did just that, notwithstanding that the content of those procedures was 

deficient. (Ex. R-40 at 60-69; T. 149-50, 798-801, 816). See OSHA Directive CPL-02-00-147, 

The Control of Hazardous Energy –– Enforcement Policy and Inspection Procedures, p. 2-9 (Feb. 

11, 2008) (LOTO Directive) 5 (“[S]ection (c)(4)(i) may be cited for procedural development, 

5 The LOTO Directive was not presented in evidence, but the Secretary referenced it in his 

Reply Brief, which is regarded as a request for the Commission to take official notice of the LOTO 

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documentation and use issues; whereas, section (c)(4)(ii) shall be cited for procedural content and 

quality problems – e.g., for the failure to have clear and specific steps to be followed in order to 

control hazardous energy”); Gen. Motors Corp., CPCG Okla. Plant (GM-CPCG Okla.), 22 BNA 

OSHC 1019, 1025-27 (No. 91-2834E, 2007) (discussing and finding violations of 

§ 1910.147(c)(4)(i) where employees failed to utilize established energy control procedures and 

of § 1910.147(c)(4)(ii) where those procedures were inadequate). The parties did not consent to 

trying the unpleaded issue of the conformance of Midvale’s developed and documented energy 

control procedures with the requirements of subparagraph (c)(4)(ii), and so that issue is not 

adjudicated herein. See McWilliams Forge Co., Inc., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 

1984) (“Trial by consent [under Fed. R. Civ. P. 15(b)] may be found only when the parties knew, 

that is, squarely recognized, that they were trying an unpleaded issue.”) 

Thus, for the Secretary to establish the violation that he has alleged in Item 1a requires 

proving that Midvale failed to “utilize” LOTO procedures as the cited provision also requires. The 

Secretary argues that he “introduced evidence of several instances in which ... employees 

performed servicing and maintenance activities while a covered machine was not locked out.” 

(Sec’y Br. 20). The instances that the Secretary argues establishes noncompliance are addressed 

next. 

Cleaning Under Gluer #3 on November 21, 2017 

A video that the CO recorded on November 21, 2017, shows Mr. Vincent Dellaperuto, who 

is a floor manager at the plant, kneeling or stooping toward the floor to gather and remove some 

granular absorbent material that had been put down on the floor next to Gluer #3 to absorb gear 

oil that had leaked from the machine. (See video at Ex. C-82; Ex. C-11 at Bates 90; T. 98-99). 

Directive pursuant to Fed. R. Evid. 201(c)(2). (Sec’y Reply Br. 2 & 5). The LOTO Directive is 

posted on OSHA’s public website. 

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This oil leak had been a longstanding condition and oil regularly had to be cleaned from the floor 

in this area. (T. 102). When Dellaperuto was cleaning up the material, Gluer #3 was in operation 

and a horizontal shaft that was located about seven inches above floor level was rotating. (T. 98-

100; C-81). A machine guard existed for this shaft, but that guard had been removed and was not 

in place at the time. (See infra for the Discussion of the machine guarding violation involving this 

missing machine guard that is alleged in Citation 3, Item 2, instance 3). Dellaperuto’s right hand 

came within one foot of the rotating shaft while he cleaned the material off the floor. (T. 98-99). 

Midvale’s president, Mr. Frank, testified that Dellaperuto was not required to lockout Gluer 

#3 for the cleaning activity depicted in the video because this was a “minor activity.” (T. 562-63). 

He testified further that he believed that Dellaperuto was not exposed to a hazard while cleaning 

the material. (T. 562-63). Similarly, the plant manager and plant engineer, John Northwood, 

testified that employees at Midvale were not required to lockout machines when engaged in the 

type of cleaning activity that Dellaperuto is shown doing in the video. (T. 758-59). However, Mr. 

Northwood acknowledged that if Dellaperuto had contacted the rotating shaft he could have been 

injured. (T. 761-62). 

The cleaning activity that Dellaperuto was doing constituted “servicing and/or 

maintenance” as defined by the LOTO standard. 6 See Burkes Mech., Inc., 21 BNA OSHC 2136, 

6 The LOTO standard defines the term “servicing and/or maintenance” in § 1910.147(b) as 

follows: 

Servicing and/or maintenance. 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. 

16 
 

 

 

 

 

2138-40 (No. 04-475, 2005) (concluding that workers who were cleaning underneath an operating 

machine were “engaged in a covered servicing or maintenance activity”). 

If the guard for the rotating shaft had been in place when Dellaperuto was cleaning the 

material from the floor near the exposed rotating shaft, the Secretary would not have established 

that the machine was required to have been locked out for that activity, because there was 

otherwise no evidence that the rotating shaft, if it had been guarded as the machine guarding 

standard requires, could have caused Dellaperuto injury. See § 1910.147(a)(1)(i) (providing that 

the standard covers servicing and maintenance in which hazardous energy “could cause injury to 

employees”). But because the guard was not present when Dellaperuto was engaged in this 

cleaning activity, the machine was required to be locked out when he encroached on the zone of 

danger presented by the unguarded rotating shaft. Cf. § 1910.147(a)(2)(ii)(A) (providing that the 

LOTO standard applies to normal production operations when an “employee is required to remove 

or bypass a guard”). 

A preponderance of the evidence thus showed that the LOTO standard applied to 

Dellaperuto’s cleaning activity, that Midvale failed to comply with the standard by failing to 

lockout the machine during the cleaning activity, and that Dellaperuto was exposed to the 

hazardous energy of the rotating shaft while cleaning. Midvale had constructive knowledge of the 

violative condition in that both Midvale’s president and its plant manager did not require the 

machine to be locked out for the cleaning activity depicted in the video. Midvale had actual 

knowledge because Dellaperuto is a supervisor whose actual knowledge of a violative condition 

is imputable to Midvale. Midvale violated the LOTO standard in the manner alleged in Item 1a 

with respect to Dellaperuto’s cleaning activity on November 21, 2017. 

17 
 

 

 

 

 

 

 

However, as discussed infra in connection with the alleged machine guarding violation that 

focuses on the same unguarded rotating shaft on Gluer #3 (Citation 2, Item 2, Instance 3), this 

same activity of Mr. Dellaperuto establishes the “employee access” element of that alleged 

violation. The exposed shaft was supposed to have been guarded, but as the video reflects the 

guard was not present on November 21, 2017, when Dellaperuto encroached on the zone of danger. 

For reasons described infra, the LOTO violation and the machine guarding violation that involved 

the same unguarded rotating shaft are duplicative of one another, so one of the two must be 

vacated. Because the LOTO standard would not have been applicable to Dellaperuto’s servicing 

activity if the guard for the rotating shaft had been in place, between the two violations the LOTO 

violation shall be vacated. (This proven but vacated LOTO violation is not considered infra in 

connection with the penalty determination for grouped Items 1a and 1b of Citation 2.) 

Removal and Replacement of Belts 

The Secretary argues that all the machines identified in the citation item “have belts which 

can break” and that the evidence established that Midvale “employees do not use LOTO when 

replacing and/or removing belts on these machines.” (Sec’y Br. 20). Midvale employees testified 

that machines were not necessarily locked out for the removal and replacement of every belt on 

the various machines at Midvale, but that machines would be locked out for the removal and 

replacement of some. (E.g., T. 588, 643-44, 768, 774). 

The evidence on which the Secretary relies in arguing that the belt removal and replacement 

done on the Midvale machines required lockout is inexact as to the time and circumstances of that 

service and maintenance activity. That evidence is insufficient to establish that any specific 

instances of belt removal and replacement requiring lockout occurred on or after October 17, 2017, 

which is the earliest date within the six-month limitations period of section 9(c) of the Act. 29 

18 
 

 

 

 

 

 

 

 

 

 

 

U.S.C. § 658(c). There is no evidence of specific instances of employees engaging in belt removal 

and replacement that occurred on or after October 17, 2017. 7 (E.g., T. 391-93, 633-34, 640-42). 

The nonspecific evidence of instances of belt removal and replacement is insufficient to 

establish that Midvale failed to lockout the machine when required by the standard during removal 

or replacement of any of the various belts on the varied machines in the timeframe alleged in the 

Citation. 8 See Gen. Motors Corp., Delco Chassis Div. (GM-Delco), 17 BNA OSHC 1217, 1218 

& 1220 (No. 91-2973, 1995) (consolidated) (stating the standard “applies only where the Secretary 

shows that unexpected energizing, start up or release of stored energy could occur and cause 

7 The Secretary argues that evidence of four employees who in the years before the 

inspection here had suffered hand injuries while working on some of the machines shows that 

Midvale employees sustained injuries because the machines were not locked out when required by 

the LOTO standard. (Sec’y Br. 10-12 & 17; Ex. C-12). Two of the injuries documented on 

Midvale’s OSHA Form 301’s suggest that the injuries were sustained during servicing done during 

normal production operations and could have been the result of the failure of the employees to 

utilize required procedures. (See Ex. C-12 at Bates 399 [injury to employee J.C. on 1.20.16] & 

Bates 404 [injury to employee H.D. on 1.3.17]; T. 640-42, 763-66). Neither of those injured 

employees testified, however, and while the evidence of the circumstances of their injuries 

establishes that the machines present a risk of injury if serviced while the machines are in 

operation, that evidence is not dispositive as to whether the belt replacement and machine 

adjustments that employees are permitted to perform without locking out and with only an e-stop 

engaged exposed employees to unexpected energization or risk of injury therefrom. There is also 

evidence that an independent cause of at least one of the documented injuries was that the injured 

employee had improperly removed a machine guard. (T. 598-600). 

8 The testimonial references to “belts” were often unspecific as to the type, location, and 

function of any belt referred to. (E.g., T. 767-69). Video evidence shows that some conveyor belts 

on the machines move at an extremely slow pace, perhaps no faster than one inch per second. (See 

e.g., Ex. R-24 video at 0'49" to 1'08"). Cf. Rockwell Intl. Corp., 9 BNA OSHC 1092, 1097-98 

(No. 12470, 1980) (concluding that the machine’s point of operation did not expose workers to 

injury in part because of its extremely slow rate of movement, so that leaving the point of operation 

unguarded did not fail to conform with a machine guarding standard that required a point of 

operation be guarded only where the machine’s operation exposed an employee to injury from that 

point of operation), overruled in part on other grounds by George C. Christopher & Sons, Inc., 10 

BNA OSHC 1436 (No. 76-647, 1982). 

19 
 

 

 

 

 

injury” and that the “terms of the standard clearly place the burden on the Secretary to show that 

there is such a hazard as to the cited machines and equipment”), aff'd, 89 F.3d 313 (6th Cir. 1996). 

The plant manager, John Northwood, testified that employees would change unspecified 

belts on gluers by using an Allen wrench, and that this would be done about twice weekly without 

utilizing LOTO procedures. (T. 777). There was no evidence, however, bearing on whether while 

performing that task any unexpected energization of the gluers could cause injury to employees, 

so the evidence is insufficient to establish that the LOTO standard applies to that activity that 

occurred within the timeframe alleged in the Citation. See § 1910.147(a)(1)(i) (providing that the 

standard covers servicing and maintenance in which energization “could cause injury to 

employees”); 54 Fed. Reg. at 36666 (“If an energy source does not have the capability of causing 

injury to employees, it is not ‘hazardous energy’ within the scope of this standard”). 

Adjustments of Belts and Rollers 

Reliable evidence established that some unspecified belts on the various machines at the 

plant become misaligned and require adjusting. Midvale does not require lockout for such 

adjustments because Midvale does not regard these adjustments to constitute a “major” 

maintenance activity. (See T. 561; Ex. C-68 at 28 & 83.) 

The CO testified that on November 7, 2017, while Gluer #3 was running he observed one 

of Midvale’s floor managers, Mr. Dellaperuto, adjust a narrow green belt on it that has both a 

horizontal and vertical run. (T. 90-93). (This belt is depicted in operation in the video at Exhibit 

C-80, but the incident to which the CO testified was not captured in any video or photographic 

evidence.) The CO believed Dellaperuto was exposed to the risk of injury while doing so. (T. 90-

93). The CO’s testimony is insufficiently concrete and precise to establish that Dellaperuto’s 

hands were in a danger zone associated with the machine’s operation and is thus insufficient to 

establish that the LOTO standard applied to the work he observed Mr. Dellaperuto doing on Gluer 

20 
 

 

 

 

 

#3 while the machine was running. See § 1910.147(a)(2)(ii)(B), (providing that the standard 

applies during normal production operations if an “employee is required to place any part of his or 

her body into an area on a machine or piece of equipment where work is actually performed upon 

the material being processed (point of operation) or where an associated danger zone exists during 

a machine operating cycle”). 

The CO testified that on November 9, 2017, he observed an unidentified employee making 

some kind of adjustment while his hands were near (but not on) some moving belt on Gluer #5, 

but that the CO did not see exactly what the employee was doing. (T. 96, 282-83). This testimony 

is insufficiently weighty to establish that the employee was engaged in a service or maintenance 

activity during normal production operations that required LOTO procedures to be utilized, in that 

it is insufficient to establish that the employee could have sustained injury from the moving belt, 

which he was not contacting. See § 1910.147(a)(1)(i) (providing that the standard covers servicing 

and maintenance in which energization “could cause injury to employees”). 

The CO testified that on November 21, 2017, he observed two unidentified employees 

making some unspecified type of adjustment to some unspecified rollers on the Zerand #1 machine 

while the machine was operating. (T. 96-97). There is no evidence whether the rollers involved 

were “energized,” in contrast to non-energized or “idler” rollers. (See T. 286). This testimony is 

insufficiently weighty to establish that the employees were at risk of injury from the rollers while 

making the unspecified adjustment. See 54 Fed. Reg. at 36666 (“If an energy source does not have 

the capability of causing injury to employees, it is not ‘hazardous energy’ within the scope of this 

standard”). 

Clearing Paper Jams 

All nine machines identified in the citation item have mechanisms that Midvale calls “jam 

stops” that are designed to stop the machine upon detecting a paper jam. The jam stops do not 

21 
 

 

 

 

 

 

 

 

 

 

 

cause a machine to stop automatically for all paper jams, however. (T. 516-18, 581-83, 613-14, 

629). Whether a paper jam is detected first by a “jam stop” or by an employee, in both 

circumstances Midvale instructs employees to engage an e-stop on the machine so that the machine 

remains stopped while the employee clears the jam, and then after the jam is cleared to disengage 

the e-stop and restart the machine by depressing the machine’s start button. Midvale does not 

require employees to lockout machines to resolve frequently occurring paper jams. (T. 665-70). 

Each of the machines identified in the citation item has multiple e-stop buttons: the Zerand 

machines have about eight to ten; the gluers have about ten; and the “window box” machine has 

about three. (T. 666, 744). The plant engineer (and the plant manager), John Northwood, testified 

that the e-stops on the machines have a fail-safe redundancy, so that if an e-stop were to fail, it 

would fail into “safe mode by design.” (T. 667-68, 738-39). 

Northwood testified further about a method of clearing some paper jams that requires an 

employee to remove a machine guard, but that a safety interlock for that guard prevents unexpected 

energization of the machine. (T. 808-13). That safety interlock is among “hundreds” of safety 

interlocks on Midvale’s machines, some of which were part of the original designs of the machines, 

and others that were added later. (T. 725-27, 322-23). 

Northwood has been involved in the repair and maintenance of Midvale’s machines for 

fifteen years and for nearly twenty years before that he worked on the same type of equipment 

working elsewhere. (T. 659). Northwood has received formal training at the Rochester Institute 

of Technology on printing subjects, at Penn State University on microprocessor controls, electrical 

controls, and motor drives and systems, and at various trade schools on other subjects. (T. 659-

60). 

22 
 

 

 

The Secretary presented no technical evidence, whether from the manufacturers of the 

machines or otherwise, to controvert Northwood’s testimony on the technical aspects of the e-stops 

and safety interlocks on Midvale’s machines. There is insufficient evidence to establish by a 

preponderance that the use of e-stops to stop the machines while an employee cleared a jam on the 

machine (or the safety interlock feature of some machine guards on the machines) would expose 

employees to injury from unexpected energization. See Consol. Constr., Inc., 16 BNA OSHC 

1001, 1006 n. 6 (No. 89-2839, 1993) (noting that the Secretary was not required to present expert 

testimony to prove his case, but that “when the Secretary chooses not to produce an expert witness, 

he risks the possibility, as here, of not being able to refute the employer's evidence”); Gen. Motors 

Corp., Delco Prod. Div., 11 BNA OSHC 1482, 1484 (No. 78-5476, 1983) (observing that “had 

the Secretary met his prima facie burden, it is questionable whether, without expert testimony, the 

Secretary's case would have been capable of withstanding rebuttal” from the respondent). 

The Commission has decided that control circuit type devices such as e-stops and safety 

interlocks may operate in such a manner that eliminates the potential of hazardous energy for 

certain servicing or maintenance activities, so that the LOTO standard does not apply to those 

activities. See GM-Delco, 17 BNA OSHC at 1220 (rejecting the argument that the LOTO standard 

“presumes that there always is a hazard of unexpected energization, etc., on every industrial 

machine and piece of equipment during servicing and maintenance,” and determining LOTO 

standard not applicable where employer relied on control circuit type devices, including 

electronically interlocked gates and e-stop buttons, to eliminate the potential for injury from 

hazardous energy); see also Alro Steel Corp., 25 BNA OSHC 1839, 1854 (No. 13-2115, 2015) 

(ALJ) (relying on GM-Delco in determining LOTO standard was not applicable where control 

circuit devices were relied upon to prevent unexpected energization or start up or release of stored 

23 
 

 

 

 

 

 

 

 

 

 

energy during a particular servicing activity). With respect to clearing paper jams, there is 

insufficient concrete evidence that if an employee were to engage an e-stop to clear the paper jam 

that there was a reasonable possibility that some other employee would disengage that e-stop and 

restart the machine unbeknownst to employees involved in servicing the machine. (Cf. CO 

testimony T. 319-20) (CO testifying that he did not consider whether other employees had 

unobstructed views of the servicing employee from the controls of the various machines). 

While there exists hydraulic and pneumatic energy in some of the machines, the Secretary 

did not present sufficient evidence to establish that during the conduct of any given service and 

maintenance activity on any of them that employees are exposed to injury from those energy 

sources. 9 The only energy source for any of the machines that was established by a preponderance 

of the evidence to present a risk of injury to employees during service and maintenance activities 

is electrical energy, which can be controlled by locking out at each machine’s power source. (T. 

605, 694-95). 

Clearing Paper Jam in the Window Machine on November 21, 2017 

On November 21, 2017, the CO recorded the video at Exhibit C-13, which is 3 minutes 

and 21 seconds in duration. (Ex. C-11 at Bates 89). Mr. Northwood, the plant manager, was 

accompanying the CO when the CO recorded the video. (T. 72). The video shows three employees 

9 Pneumatic energy is present in the glue tanks on the gluers. There are “caution” stickers 

on some gluer machines that warn employees to lock out the machine when “cleaning, making 

adjustments, servicing, clearing jams, maintaining glue pots and glue bottles.” (Ex. C-22, video 

of Gluer #2 at 1'19"; Ex. C-23 video of Gluer # 3 at 1'23" and 1'49"). Other than testimony on 

behalf of Midvale that those are “not our sticker[s]” (T. 559), there is no evidence regarding the 

provenance of those stickers. Nor is there evidence that failing to lock out the machine to isolate 

both electrical and pneumatic energy to the glue pots during refilling exposes employees to 

potential injury from the electrical or pneumatic energy. There is evidence, however, that the “glue 

pot” and “glue bottle” technology described on the stickers is a remnant of old technology, 

suggesting that the stickers’ cautions directed at that technology could be an anachronism. (T. 

584-85, 671-73, 813-15). 

24 
 

 

 

 

 

 

 

 

 

 

 

operating the “window box” machine. The machine jammed, and two employees put their hands 

in the machine’s point of operation to clear the jam without locking out the machine and without 

an e-stop being engaged. 10 (T. 70-80; Ex. C-11 at Bates 89). 

This service activity of clearing the paper jam depicted in the video constituted a service 

activity “where the employee may be exposed to the unexpected energization or startup of the 

equipment or release of hazardous energy.” § 1910.147(b) 11; Otis Elevator Co. v. Sec’y of Labor, 

762 F.3d 116, 123 (D.C. Cir. 2014) (determining the text of the LOTO standard contemplates its 

application to “unjamming” work, and also “comports with the standard's preventative purpose”). 

The employees clearing the jam were exposed to the “unexpected” energization of the machine 

because with the e-stop (which is purportedly fail-safe) disengaged, the machine could be restarted 

by simply depressing the start button. If the machine were restarted without warning to the 

servicing employees, the restart would be unexpected as to those employees and could cause them 

injury. (T. 86-87). Id., 762 F.3d at 121 (indicating that whether an energy source presents the 

potential for hazardous energy involves a two-pronged test: (1) whether unexpected energization, 

start up or release of stored energy could occur, and (2) if it can occur, whether it could cause 

injury to employees). This is precisely the kind of industrial accident the LOTO standard is 

designed to prevent. See GM-CPCG Okla. 22 BNA OSHC at 1022 (“The LOTO standard ... was 

10 The video shows that after the employees detected the paper jam, the employee who was 

feeding paper to the machine depressed an e-stop button to stop the machine, but that immediately 

after depressing the button to stop the machine he lifted it back up and thereby disengaged it. (Ex. 

C-13 at 1'04"). Then he and the machine operator moved to and stood on opposite sides of the 

machine, where each put his hands in the point of operation to clear the jam. (Ex. C-13 at 1'04"– 

2'28"; T. 75-76, 83-84). After they cleared the jam, the operator made eye contact with the other 

two employees running the machine, asked if they were “good,” and upon receiving affirmative 

responses he restarted the machine by depressing the start button. (Ex. C-13 at 2'30"–2'37"; T. 80-

81). 

11 See supra footnote 6 for the standard’s complete definition of “servicing and/or 

maintenance.” 

25 
 

 

 

 

 

 

 

 

 

 

 

 

promulgated to prevent industrial accidents during servicing of machines that (1) remain in an 

operational mode, (2) are turned off but connected to a power source, (3) retain stored energy, or 

(4) are reactivated by another worker unaware that servicing is in progress.”) 

Midvale argues that energization of the window box machine when employees are engaged 

in clearing a paper jam could never be unexpected to those servicing employees, and thus lockout 

was not required. Midvale argues that the members of the three-employee crew that runs the 

window box machine have “complete visibility” of each other while running the machine and that 

it is unnecessary to lockout a machine to protect against the possibility of another employee 

deliberately endangering the servicing employees by restarting the machine while they had their 

hands in the point of operation. (Resp’t Br. 23). 

This argument is rejected. The conditions that Midvale argues renders any energization of 

the window box machine not “unexpected” to servicing employees overlook “common human 

errors such as ‘neglect, distraction, inattention or inadvertence.’” S. Hens, Inc. v. OSHRC, 930 

F.3d 667, 677 (5th Cir. 2019), quoting Matsu Ala., Inc., 25 BNA OSHC 1952, 1970 (No. 13-1713, 

2015) (ALJ). “Occupational safety regulations exist because people are distractible.” Id. 

“Functioning with less than perfect focus and control is our ordinary condition.” Id. The noise 

and activity on the busy floor of Midvale’s plant depicted in the video reflects an environment rich 

in conditions for worker distraction, inadvertence, and inattentiveness. Under such typical 

working conditions, it is reasonably possible that the window box machine could be started without 

the prior knowledge of the servicing employees and expose them to the risk of injury. 12 

12 Another factor that makes worker distraction a reasonable possibility is Midvale’s 

practice of not disciplining employees for safety violations, but instead responding to safety 

violations by simply making on-the-spot corrections and admonishing the offending employee to 

comply. This practice is discussed infra in greater detail. 

26 
 

 

 

 

 

 

 

 

Machine Set-Up and Cleaning 

Midvale does not require employees to lockout when setting up or cleaning any of the nine 

machines identified in the citation item. (Ex. C-67; T. 632, 731-33, 759). Both setting up and 

cleaning machines and equipment constitutes “service and/or maintenance” as defined in the 

LOTO standard if during that activity “the employee may be exposed to the unexpected 

energization or startup of the equipment or release of hazardous energy,” § 1910.147(b), and if 

such exposure to the hazardous energy could cause injury to employees. Otis Elevator, 762 F.3d 

at 121. 

The only evidence presented establishing the reasonable possibility of unexpected 

energization during setting up or cleaning pertains to an unguarded power transmission belt and 

pulleys on the non-operator side of Zerand #2, which is discussed in detail infra in connection with 

the machine guarding violations alleged in Citation 3, Items 3a and 3b. As discussed in connection 

with those citation items, a preponderance of the evidence establishes that employees engage in 

both setting up and cleaning underneath the Zerand #2 while in proximity to the unguarded belt 

and pulleys and are at risk of injury from the unexpected energization of the machine. The Zerand 

#2 is a complex machine about 100 feet long, but the only hazardous energy present is electrical 

energy, which can be isolated and locked out in minutes at its main disconnect. 13 (T. 615, 694-

95, 699). An employee in proximity of the unguarded belt and pulleys on the non-operator side of 

the machine would not necessarily be visible to an employee located on the operator side of the 

machine because of the machine’s size and height, so an employee in that area would be exposed 

to the risk of injury by the inadvertent or premature activation of the machine. (Ex. R-26; T. 692). 

13 While the Zerand machines have hydraulic energy too (T. 745), as noted supra in the 

text associated with footnote 9, that energy was not shown to constitute hazardous energy required 

to be controlled under the LOTO standard. 

27 
 

 

 

 

 

 

 

 

 

See 54 Fed. Reg. at 36648 (“The generally accepted best means to minimize the potential for 

inadvertent activation is to ensure that all power to the machine or equipment is isolated, locked 

or blocked and dissipated at points of control, using a method that cannot readily be removed, 

bypassed, overridden or otherwise defeated.”). 14 

This LOTO violation and the machine guarding violations that are adjudicated infra in 

connection with Citation 3, Items 3a and 3b involve exposure to the same unguarded belt and 

pulleys. As described in connection with those machine guarding violations, this LOTO violation 

and those machine guarding violations are duplicative of one another, so one of the two must be 

vacated. Because the LOTO standard would not have been applicable to the servicing activity 

done in proximity to the unguarded belt and pulleys if a guard that conformed to machine guarding 

standard had been in place, between the two violations the LOTO violation shall be vacated. (The 

proven but vacated LOTO violation is not considered infra in connection with the penalty 

determination for the LOTO violation.) 

With regard to other aspects of setting up and cleaning the nine machines identified in Item 

1a of Citation 2, it is entirely possible, and perhaps even probable, that the unexpected energization 

of the machines during the setting-up and cleaning the machines could cause injury, but there is 

14 Midvale argues that locking out the Zerand machines during machine set up is 

technically infeasible because power is required to “jog” the machine into place for some steps in 

the set up. (T. 532, 661-666, 675, 723-24) (Resp’t Br. 31). There is no evidence that the machine 

must be operational during whatever set up activity the employees perform while in proximity to 

the unguarded belt and pulleys. And in any event, Midvale did not develop or utilize any procedure 

for the temporary removal of lockout devices for testing or positioning the machine as prescribed 

by § 1910.147(f)(1). (See T. 725-26; Ex. R-40 at 60-69). Moreover, there is no plausible reason 

that the Zerand machine could not be locked out for employees who are within the zone of danger 

of the unguarded belt and pulleys when removing scrap paper that collects on the floor immediately 

below and beyond the unguarded belt and pulleys. (See Ex. C-38; T. 218-20). Midvale’s 

infeasibility defense to the LOTO violation as to the servicing and maintenance activity of 

employees in proximity of the unguarded belt and pulleys on Zerand #2 is not proven. 

28 
 

 

 

 

 

no concrete evidence that those activities present an actual risk of injury from hazardous energy. 15 

The existence of such a risk cannot be presumed, but rather there must be substantial evidence that 

at least supports the reasonable inference that such a risk exists. Alleged violations are not proven 

when based on surmise, conjecture, or even an “educated guess.” Keystone Body Works, 4 BNA 

OSHC 1523, 1524 (No. 6606, 1976). 

“Fair Notice” Defense 

Midvale argues that it was deprived of fair notice of the requirements of the LOTO standard 

based upon Mr. Frank’s recollection that in December 2015 AD Stelmack told him that lockout 

was required only for “major” service and maintenance activities. (Resp’t Br. 35-37, citing Miami 

Indus., Inc., 15 BNA OSHC 1258, 1264 (No. 88-671, 1991), aff'd. in relevant part and set aside 

in part, 983 F.2d 1067 (6th Cir. 1992) (unpublished). As previously discussed, Mr. Frank’s 

understanding of what AD Stelmack said to him is objectively unreasonable. A preponderance of 

the evidence fails to support the factual predicate for Midvale’s “fair notice” argument. 

Violation of Non-delegation Doctrine 

Midvale argues that the D.C. Circuit’s holding in UAW v. OSHA, 37 F.3d 665, 667 (D.C. 

Cir. 1994), that the LOTO standard does not run afoul of the non-delegation doctrine is infirm in 

light of the Supreme Court’s subsequent decision in Whitman v. Am. Trucking Assn’s, Inc., 531 

U.S. 457 (2001), and so asks that the Act be declared unconstitutional as violative of the 

non-delegation doctrine. (Resp’t Br. 49-51). Inasmuch as the Commission lacks authority to 

adjudicate the constitutionality of a statute, the merits of that argument are not addressed. See S.A. 

Healy Co., 17 BNA OSHC 1145, 1147 (No. 89-1508, 1995), aff’d on other grounds, 138 F.3d 686 

15 While in some instances guards must be removed during set up of the Zerand machines, 

the record does not indicate what guards are removed and whether those guards have safety 

interlock mechanisms that would prevent unexpected energization. (T. 726-29). 

29 
 

 

 

 

 

 

(7th Cir. 1998) (noting that “[a]rguably, the Commission would not be competent to decide ... 

whether the Act would be unconstitutional”); Johnson v. Robison, 415 U.S. 361, 368 (1974) 

(noting the principle that “adjudication of the constitutionality of congressional enactments has 

generally been thought beyond the jurisdiction of administrative agencies”). 

Classification of § 1910.147(c)(4)(i) Violation 

The Secretary alleges that the violation should be classified as both “willful” and “serious.” 

(Complaint, ¶6). 

Whether a violation is “willful” presents a question of fact. Bianchi Trison Corp. v. Chao, 

409 F.3d 196, 208 (3d Cir. 2005); Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 

2012) (determining that the Commission’s finding of willfulness lacked “substantial supporting 

evidence”). 

“The hallmark of a willful violation is the employer's state of mind at the time of the 

violation.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000), aff'd, 268 

F.3d 1123 (D.C. Cir. 2001). A violation is willful if the employer acted with an intentional, 

knowing, or voluntary disregard for the requirements of the Act, or with plain indifference to 

employee safety. Stark Excavating, Inc., 24 BNA OSHC 2215, 2222 (No. 09-0004, 2014) aff’d, 

811 F.3d 922 (7th Cir. 2016); A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d 1341, 1351 (D.C. 

Cir. 2002) (observing that “conscious disregard” and “plain indifference” are alternative means of 

proving willfulness). A showing of evil or malicious intent is not necessary to establish 

willfulness. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3 (No. 92-

3684, 1997), aff'd 131 F.3d 1254 (8th Cir. 1997). But in proving willfulness it is “not enough for 

the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a 

violation.” Williams Enters. Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). “[A] willful 

violation may be found where the employer knows of the legal duty to act, and knowing an 

30 
 

 

 

 

 

 

 

 

employee is exposed to a hazard, nonetheless fails to correct or eliminate the hazardous exposure.” 

Revoli Constr. Co., 19 BNA OSHC 1682, 1685 (No. 00-1315, 2001); see also Dukane Precast, 

Inc. v. Perez, 785 F.3d 252, 256 (7th Cir. 2015) (concluding that proof of willfulness under section 

17(a) of the Act “requires proof only that the defendant was aware of the risk, knew that it was 

serious, and knew that he could take effective measures to avoid it, but did not—in short, that he 

was reckless in the most commonly understood sense of the word”). 

The Secretary’s arguments that Midvale’s failure to develop clear and specific machine 

specific LOTO procedures was willful conduct is rejected for the reasons stated earlier—Item 1a 

of Citation 2 does not allege the content of Midvale’s documented program was deficient. 

The Secretary justifies the willful classification in part based on two prior violations of a 

different provision of the LOTO standard, § 1910.147(c)(1), which requires employers to 

“establish a program consisting of energy control procedures, employee training and periodic 

inspections.” Midvale’s first violation of subparagraph (c)(1) was based on Midvale’s failure to 

have any program and became a final order on February 20, 2014. (Ex. C-71; T. 459). Midvale 

apparently failed to develop any LOTO program to abate that first violation. Midvale’s second 

established violation of § 1910.147(c)(1) and was likewise based on Midvale’s failure to establish 

any LOTO program and was classified as willful. This second violation became a final order on 

June 19, 2017. (Ex. C-1 at 13 & 24; T. 350-51). After the second violation became a final order, 

Midvale did not submit information showing it had abated that violation (or any other violations 

established by that final order) until sometime after the inspection here had commenced. (See Ex. 

R-40). Indeed, the inspection here was originally scheduled because Midvale had failed to timely 

submit any abatement information relating to the final order of June 19, 2017. (Ex. C-2; T. 373-

75). Midvale eventually did provide abatement material for the violations established by the final 

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order of June 19, 2017, which included a written energy control program that Midvale had adopted 

in 2016 in an apparent effort to correct the second alleged violation of § 1910.147(c)(1). (Midvale 

does not explain why it did not provide this abatement material earlier. [Ex. R-40 at Bates 336-

346; T. 521].) 

The two prior violations for failing to have an energy control program do not establish that 

the violation established here for failing to utilize LOTO procedures was willful. To be sure, 

Midvale failed to exercise reasonable diligence in implementing the LOTO program that it did 

develop, and its documented energy control procedures were seriously flawed in their content, but 

the evidence is insufficient to establish that its carelessness and failure to exercise reasonable 

diligence rose to the level of willfulness within the meaning of the Act. 

The violation is properly classified as “serious.” A violation is “serious” if there was a 

substantial probability that death or serious physical harm could result from the violative condition. 

29 U.S.C. § 666(k); Consol. Freightways Corp., 15 BNA OSHC 1317, 1324 (No. 86–351, 1991). 

“This does not mean that the occurrence of an accident must be a substantially probable result of 

the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” 

Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31, (No. 97-0469, 2003) (consolidated) 

(citation omitted). Serious physical harm could result from the failure to utilize LOTO procedures 

when required to protect employees from injury from hazardous energy. See Kaspar 

Electroplating Corp., 16 BNA OSHC 1517, 1522) (No. 90-2066, 1993) (likelihood of severe 

lacerations to hand support classification of serious). 

3. Citation 2, Item 1b -- § 1910.147(c)(7)(i) 

In Citation 2, Item 1b, the Secretary alleges that Midvale violated § 1910.147(c)(7)(i), 

which requires employers to provide certain training to employees as part of an energy control 

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program that is required under subparagraph (c)(1). 16 Item 1b alleges that Midvale violated the 

standard with respect to each of the nine machines that were identified in Item 1a of the Citation 

in the following manner: 

The employer does not provide training to ensure that the purpose 

and function of the energy control program is 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. This violation was most recently observed on or 

16 Section 1910.147(c)(7)(i) provides as follows: 

(7) Training and communication. (i) 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. The training shall 

include the following: 

(A) Each authorized employee shall receive training 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. 

(B) Each affected employee shall be instructed in the purpose and 

use of the energy control procedure. 

(C) All other employees whose work operations are or may be in 

an area where energy control procedures may be utilized, shall be 

instructed about the procedure, and about the prohibition relating to 

attempts to restart or reenergize machines or equipment which are 

locked out or tagged out. 

The terms “affected employee” and “authorized employee” are defined in § 1910.147(b) as 

follows: 

Affected employee. 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. 

Authorized employee. A person who locks out or tags out machines 

or equipment in order to perform servicing or maintenance on that 

machine or equipment. An affected employee becomes an 

authorized employee when that employee's duties include 

performing servicing or maintenance covered under this section. 

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about October 18, 2017 ... when employees performed servicing 

and maintenance on machinery with multiple sources of energy .... 

After Midvale had been cited in November 2015 for an alleged willful violation of 

§ 1910.147(c)(1), Midvale established a LOTO program and in implementing that program it 

provided LOTO training in February 2016 to most employees as “affected employees.” (T. 128, 

775, 779, 793, 817; Ex. R-40 at Bates 347). Only three supervisory employees (Northwood, 

Dellaperuto, and Thorne) are trained as “authorized employees,” and they are the only employees 

that Midvale permits to lockout machines. (T. 586, 591-93, 630-31, 769-70). No evidence of the 

precise content of the LOTO training that was provided in February 2016 was presented, so there 

is no basis for finding that its content did not reasonably address the matters on which authorized 

and affected employees must be trained as specified in § 1910.147(c)(7)(i)(A) & (B). 

From the time of the initial LOTO training in February 2016 through the commencement 

of the inspection here in October 2017, Midvale did not provide LOTO training to any newly hired 

employees who were required to receive LOTO training. (T. 129-30, 133; e.g., Ex. C-56 

[Accomando, started on 6.24.2017; Siglin, started on 10.2.2017], Ex. C-57 [Bowers, started in 

May 2017], T. 803 [Kivler, start date not identified but not trained in February 2016]). 

The cited standard applies. Employee training is an essential component of any energy 

control program that is required to be established by the LOTO standard. § 1910.147(c)(1) 

(providing that energy control programs consist of, inter alia, “employee training”). 

Midvale failed to comply with the training provision because it did not provide training to 

all employees who are required to be trained. Moreover, Nate Siglin was the operator of the 

window box machine on November 21, 2017, as described above in connection with the violation 

of § 1910.147(c)(4)(i), when he and another employee cleared a paper jam without locking out or 

34 
 

 

 

 

 

 

 

 

 

 

having an e-stop engaged, and he had not received LOTO training as of that date. (Ex. C-14; T. 

233-34; Ex. C-40 at Bates 169). 

The presence of untrained employees on the production floor establishes employee access 

to the violative condition. Likewise, the servicing of a machine that was required to be locked out 

by an employee who had not received any LOTO training (Siglin) establishes employee access to 

the violative condition. 

Midvale had actual knowledge of its failure to train employees that the standard’s training 

provision requires to be trained. See Compass Env'tl, Inc. v. OSHRC, 663 F.3d 1164, 1168 (10th 

Cir. 2011) (“[E]mployer knowledge of the violative condition ... will almost invariably be present 

where the alleged violative condition is inadequate training of employees.”). 

A preponderance of the evidence establishes the violation of § 1910.147(c)(7)(i) alleged in 

Item 1b. 

Classification of § 1910.147(c)(7)(i) Violation 

As with Item 1a of this citation, the Secretary alleges that the violation for Item 1b should 

be classified as both “willful” and “serious.” (Complaint dated 7.2.2018, ¶ 6). 

Midvale’s failure to train some employees who were required to be trained reflects 

carelessness and a failure to exercise reasonable diligence, but the evidence is insufficient to 

establish that its failure rose beyond that level of culpability to willfulness. See Dayton Tire v. 

Sec’y of Labor, 671 F.3d 1249, 1257 (D.C. Cir. 2012) (finding that the employer’s safety manager 

having made “some effort” to comply with the LOTO standard was “enough to save [the employer] 

from a willfulness determination”). 

The violation is properly characterized as serious. Providing employees proper training is 

a critical component of an effective LOTO program to prevent injury from hazardous energy. See 

54 Fed. Reg. at 36673 (stating the performance-oriented training requirements of subparagraph 

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(c)(7) are “of critical importance in helping to ensure that the applicable provisions of the 

hazardous energy control procedure(s) are known, understood and strictly adhered to by 

employees”). 

4. Penalty for Grouped Serious Violations of § 1910.147 

The maximum penalty for a serious violation proven in connection with the inspection here 

is $12,934. 29 C.F.R. § 1903.15(d)(3) (2018) (setting forth maximum amounts for penalties that 

are proposed from 1.3.2018 to 1.23.2019). 

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). “[T]he Commission has the authority to ensure 

that a penalty is not unduly burdensome or excessive by evaluating the penalty assessment criteria 

set forth in the Act and determining a reasonable and appropriate penalty based on that evaluation.” 

S.A. Healy Co., 17 BNA OSHC 1145, 1151 (No. 89-1508, 1995), aff’d on other grounds, 138 F.3d 

686 (7th Cir. 1998). 

Section 17(j) of the Act requires the Commission, in assessing an appropriate penalty, to 

give due consideration to the gravity of the violation, the “size of the business of the employer,” 

and to the employer’s history of previous violations and good faith. 29 U.S.C. § 666(j). Of these 

factors, gravity is the principal factor “and is based on the number of employees exposed, duration 

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

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

The undersigned concurs with the Secretary’s determination to group the two LOTO 

violations and assess a single penalty for both. See Miniature Nut and Screw Corp., 17 BNA 

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OSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items involving violations of 

separate components of a hearing conservation program). The undersigned concurs further in the 

Secretary’s assessment that the gravity of the two violations is “high,” so that the gravity-based 

penalty for the grouped serious violations would be the maximum penalty of $12,934. (Ex. C-11 

at Bates 85; Ex. C-15 at Bates 93). The undersigned concurs further in reducing the maximum 

penalty to account for Midvale’s small size, but instead of reducing the penalty by 50% as the 

Secretary proposed for the alleged willful violations, the reduction for size should be 60%, as the 

Secretary has done with respect to the other serious violations, as is described infra. This reduction 

for size includes consideration of Midvale’s financial wherewithal. (Exs. R. 41 & R-42; T. 

530-31). See Colonial Craft Reprod., 1 BNA OSHC 1063, 1064 (No. 881, 1972) (“the size of the 

business of an employer” factor in section 17(j) of the Act encompasses an employer’s financial 

condition). An increase of that resulting figure by 33% for the “history of previous violations” 

factor, rather than the 10% proposed by the Secretary, is in order in consideration of Midvale’s 

two prior violations of § 1910.147(c)(1), one serious and one willful. (See Exs. C-1 & C-71). The 

undersigned concurs with the Secretary’s assessment that no penalty reduction is appropriate for 

the “good faith” factor in view of its two prior violations for failing to have established any energy 

control program. Accordingly, a penalty of $6,881 is assessed for the two grouped LOTO 

violations proven in Items 1a and 1b of Citation 2. 

B. Machine Guarding for Horizontal Power Transmission Shaft– 

§ 1910.219(c)(2)(i) 

(“Willful/Serious” Citation 2, Item 2) 

The Secretary alleges Midvale violated § 1910.219, a machine guarding standard titled 

“Mechanical power transmission apparatus.” Item 2 of Citation 2 alleges Midvale violated 

subparagraph (c)(2)(i) of that standard, which provides in pertinent part as follows: 

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(2) Guarding horizontal shafting. (i) All exposed parts of 

horizontal shafting seven (7) feet or less from floor or working 

platform ... shall be protected by a stationary casing enclosing 

shafting completely or by a trough enclosing sides and top or sides 

and bottom of shafting as location requires. 

The citation item alleges that Midvale violated the standard with respect to each of its five 

gluer machines in the following manner: 

The employer does not ensure all exposed parts of horizontal 

shafting seven (7) feet or less from floor are protected by stationary 

casing(s) enclosing shafting completely or by trough(s) enclosing 

sides and top or sides and bottom of shafting. This violation was 

most recently observed on or about October 18, 2017 ... when 

employees operated the following: 

1. The International Paper Box Machine Company Swifty RightAngle Model FZ Gluer #1 (Serial No. 602) with an unguarded 

rotating shaft two (2) foot, six (6) inches above floor level 

2. The International Paper Box Machine Company Swifty RightAngle Model FZ Gluer #2 (Serial No. 397) with an unguarded 

rotating shaft two (2) foot, six (6) inches above floor level 

3. The International Paper Box Machine Company Speed Queen 

Model KH Gluer #3 (Serial No. 102) with an unguarded rotating 

shaft seven (7) inches above floor level 

4. The International Paper Box Machine Company Speed Queen 

Model KH Gluer #3 (Serial No. 101) with three (3) unguarded 

rotating shafts seven (7) inches above floor level 17 

5. The International Paper Box Machine Company Swifty 

Right-Angle Model FZ Gluer #5 (Serial No. 639) with an unguarded 

rotating shaft two (2) foot, six (6) inches above floor level 

A preponderance of the evidence establishes that the standard applied to all five machines 

identified and that each of the five machines were non-compliant in the manner alleged (as the 

17 Instance 4 erroneously identifies the gluer with serial number 101 as Gluer #3. In 

actuality, Midvale has designated the gluer with that serial number as Gluer #4. (T 158-59; C-11 

at Bates 90 and C-18 at Bates 105). The complaint is deemed amended to correct this error. Also, 

the evidence establishes the presence of two unguarded shafts seven inches above floor level on 

Gluer #4, not three as alleged. (Ex. C-26; Ex. R-24 at 1'43"; T. 174-75, 298-99). The complaint 

is deemed amended further to accurately reflect the number of unguarded shafts on Gluer #4. 

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complaint is deemed amended as reflected in footnote 17). 18 (T. 157; T. 159-61 & Ex. C-19 

[Gluer #1]; T. 158, 164-65, Ex. C-22 video at 1:54, Ex. C-25 [Gluer #2]; T. 169, 171-72, 175, Exs. 

C-23 & C-24 [Gluer #3]; T. 176-78, 333, Exs. C-26 & R-24 [Gluer #4]; T. 158, 179-83, Exs. C18, C-79 at 3 & C-78 video at 0:38 [Gluer #5]). Midvale does not contend otherwise. (See Resp’t 

Br. 14-15, 39-41). Each of the unguarded shaft segments are less than one foot in length. (See 

Exs. C-26, C-19, C-24, C-22 at 1'54", C-79). 

A preponderance of the evidence establishes that guards existed for most if not all the 

identified unguarded shafts, but that employees had removed them and had not put them back into 

place. (E.g., T. 162, 164-65, 176-77, 180, 182-83, 298-99, Ex. C-26). A preponderance of the 

evidence establishes further that Midvale supervisors had actual knowledge of the unguarded 

rotating shafts on each of the five gluer machines. A preponderance of the evidence establishes 

further that Midvale supervisors had constructive knowledge of the violative conditions in view of 

the duration that some of the shafts remained unguarded (months in at least one instance) and also 

because supervisors knew that employees regularly removed and failed to replace the guards. (T. 

100, 162, 191, 600, 679, 695-98) (Ex. C-19, Ex. C-18 at Bates 106, T. 160-62 [Gluer #1]) (T. 165, 

176, Ex. C-25, Ex. C-22 video at 1'53" [Gluer #2]) (Ex. C-82, T. 757, 761-62 [Gluer #3]) (T. 65, 

134, 176, Ex. C-26, Ex. C-56 at 4 [Gluer #4]) (Ex. C-78, T. 180, 182-85 [Gluer #5]). Midvale 

again does not contend otherwise. (See Resp’t Br. 14-15, 39-41). 

Midvale contends the Secretary failed to establish the “employee access” element of the 

Secretary’s burden of proof as to any of the unguarded shafts. (See Resp’t Br. 14-15, 39-41). 

18 The cited standard, § 1910.219(c)(2)(i), is a specification standard, and thus proof of 

noncompliance establishes the existence of a hazard. Fabricated Metal Prods. Inc., 18 BNA 

OSHC 1072, 1073 n. 4 (No. 93-1853, 1997) (identifying § 1910.219(c)(2)(i) to be a specification 

standard). 

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The test for assessing the “employee access” element is described in Fabricated Metal 

Prods. Inc. (Fabricated Metal), 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997), as follows 

(footnotes omitted): 

[I]n order for the Secretary to establish employee exposure to a 

hazard she 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. We 

emphasize that ... the inquiry is not simply into whether exposure is 

theoretically possible. Rather, the question is whether employee 

entry into the danger zone is reasonably predictable. 

The “zone of danger” referred to in Fabricated Metal is the “area surrounding the violative 

condition that presents the danger to employees [that] the standard is intended to prevent.” RGM 

Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995). “The scope of the zone of danger 

is relative to the wording of the standard and the nature of the hazard at issue.” Fabricated Metal, 

18 BNA OSHC at 1074 n.7. The “zone of danger” respecting a horizontal shaft that is required to 

be guarded by § 1910.219(c)(2)(i) is defined by the unguarded horizontal shaft itself. See id. 

(describing the unguarded shaft as the zone of danger respecting non-compliant guarding under 

§ 1910.219(c)(2)(i)). Inasmuch as there is no operational reason for Midvale employees 

intentionally to contact any of the unguarded shafts when they are rotating, the “inquiry then is 

whether the employees’ proximity to the machines makes it reasonably predictable that they will 

enter these zones of danger” inadvertently or accidently, such as by slipping or falling. Id. 

Employee Access to Unguarded Shaft on Gluer #1 

Gluer #1 is configured in an L-shape, with each side of the “L” being about 30 to 35 feet 

in length. (T. 716). The unguarded shaft on Gluer #1 is about 30 inches above floor level and is 

located inches from the outside corner of the “L”, as reflected in the photo at Exhibit C-19. (T. 

159-60, 168-69). The unguarded shaft is adjacent to a 40-inch-wide passageway on the plant floor. 

40 
 

 

 

 

 

 

 

Machine operators pass by this outside corner of Gluer #1 during machine operations in making a 

ninety-degree turn at the corner where the unguarded shaft is situated, and other plant employees 

traverse this passageway to and from the plant’s warehouse. (T. 161, 196; Ex. C-18 at Bates 105). 

There is nothing to impede an employee who is passing by the unguarded shaft from contacting it, 

whether by inattention or as the result of stumbling or tripping into it. (Ex. C-19). Tripping, 

falling, and slipping hazards are present on the plant’s floor and have resulted in employee injuries. 

(See Ex. C-12 at Bates 402 & 408). At least one machine persistently leaks oil onto the floor, so 

slipping hazards arise on the plant floor from time to time. (T. 102). This evidence establishes by 

a preponderance “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” presented 

by the unguarded shaft on Gluer #1. Fabricated Metal, 18 BNA OSHC at 1074. 

Employee Access to Unguarded Shaft on Gluer #2 

Gluer #2 is substantially identical to Gluer #1, and the unguarded shaft on Gluer #2 is in 

the same location on the machine as the unguarded shaft on Gluer #1 described above. (T. 164-65). 

The video and photo evidence of the unguarded shaft on Gluer #2 depicts a “Gaylord box” on the 

floor beside the unguarded shaft, into which employees discard paperboard product. (T. 166; Ex. 

C-25, Ex. C-22 video at 1:53). There is no evidence whether this Gaylord box is ever removed 

from that location, and there is further no evidence from which it may be reasonably inferred that 

it would be absent from that location when the machine is running and the shaft rotating. The 

presence of the Gaylord box near this unguarded shaft renders inadvertent or accidental contact 

with the unguarded shaft a remote possibility, and not “reasonably predictable.” See Fabricated 

Metal 18 BNA OSHC at 1075 (finding that exposure to unguarded shaft not reasonably predictable 

where barrels stored near the machine “made it impossible for an employee to contact” the shaft). 

Employee access to the unguarded shaft on Gluer #2 is not proven. 

41 
 

 

 

 

 

 

 

Employee Access to Unguarded Shaft on Gluer #5 

Gluer #5 is substantially identical to Gluers #1 and #2 but is in a different room of the plant. 

(T. 168-69; Ex. C-56 at 1). The unguarded shaft on Gluer #5 is in the same location on the machine 

as the unguarded shafts for Gluers #1 and #2. (Exs. C-78 video at 0'38"–0'46" & 2'05"–2'11"; C79 photos). The only evidence that employees would encroach the zone of danger of this 

unguarded shaft by operational necessity or otherwise is the CO’s testimony that employees would 

have to pass by the unguarded shaft going to and from the machine’s glue tank to refill it. (T. 186). 

The glue tank for Gluer #5 is located around the ninety-degree corner (i.e., the outside corner of 

the L-shaped machine) from the unguarded shaft, appearing to be approximately three feet from 

the corner itself. (Ex. C-78 video at 0'46"–0'54"). The CO never observed an employee refilling 

any glue tank, however, so he never observed whether the gluer was running and the shaft rotating 

when employees filled the glue tank. (T. 186). 

The one-gallon capacity glue tank is “topped-off” each morning before the machine is 

started up. If the tank requires refilling during the day, the greater weight of the evidence 

establishes that the machine is turned off while the glue tank is being refilled, because when the 

tank is opened to be refilled the tank has no air pressure, which is necessary for a gluer machine 

to dispense glue onto the paperboard. (T. 671-74, 814). Because the machine would be off when 

the glue tank is refilled, an employee performing this task would walk past the then non-rotating 

unguarded shaft on the way to, and then returning from, the glue tank. (T. 186). There is 

insufficient evidence to establish by a preponderance that the machine operators or other 

employees are required, or have occasion, to walk past the unguarded shaft while the machine is 

running and the shaft rotating. See Home Rubber Co. LP, No. 17-0138, 2021 WL 3929735, at *9 

(OSHRC Aug. 26, 2021) (employee access not shown where there was no evidence that a 

hazardous shaft would be rotating when employees used a bucket that was located near the 

42 
 

 

 

 

 

 

violative condition). The evidence respecting employee access to the zone of danger presented by 

the unguarded rotating shaft on Gluer #5 is insufficiently weighty to establish the employee access 

element of the Secretary’s burden of proof as to that machine. 

Employee Access to Two Unguarded Shafts on Gluer #4 

The photo at Exhibit C-26 depicts an unguarded shaft on Gluer #4 that is about seven inches 

above the floor level and about four feet from the machine’s glue tank. The only evidence 

respecting employee access to the zone of danger of the unguarded shaft is the plant manager’s 

testimony that this location is against the wall and that employees do not have reason to pass by it 

while the machine is operating. (T. 749). The evidence is insufficient to establish the employee 

access element of the Secretary’s burden of proof as to this unguarded shaft on Gluer #4. 

A video shows another unguarded shaft on Gluer #4 that is also about seven inches above 

the floor level. (Ex. R-24 at 1'41"–1'45"; T. 572-73). There is no evidence respecting whether any 

employees would have occasion to traverse along this pathway that adjoins the rotating shaft when 

the machine is in operation and the shaft rotating. The evidence is insufficient to establish the 

employee access element of the Secretary’s burden of proof as to this unguarded shaft on Gluer 

#4. See Home Rubber Co. LP, 2021 WL 3929735, at *9. 

Employee Access to Unguarded Shafts on Gluer #3 

The unguarded shaft on Gluer #3 is the same shaft to which Mr. Dellaperuto was exposed 

in connection with the LOTO violation that occurred in connection with his cleaning gear oil that 

had leaked onto the floor. The plant manager testified that a Gaylord box is maintained adjacent 

to the rotating shaft and is in place whenever the machine is operating. (T. 749-50; Ex. C-23 video 

2:02–2:20 & 2:35–3:07; Ex. C-24 at 1–3). The CO testified he had seen this area of the machine 

when the Gaylord box was not present, but he did not testify whether the machine was operating 

at the time. (T. 173-74). The video of Mr. Dellaperuto cleaning up the oil shows him situated in 

43 
 

 

 

 

 

a narrow space in between a wood box to his left and a stack of collapsed packing boxes to his 

right while accessing the area of the floor near the rotating shaft and the oil leak. (Ex. C-82). 

This evidence establishes that while under ordinary operations employees do not have 

reason to enter the zone of danger for this rotating shaft, at least in this instance of cleaning up the 

oil leak, Mr. Dellaperuto was working in the zone of danger. Midvale acknowledges that 

Dellaperuto was working “relatively close to the unguarded shaft,” but contends that with 

Dellaperuto’s decades of experience with these machines, he was not within the zone of danger of 

the rotating shaft. (Resp’t Br. 40). This argument is rejected. Dellaperuto had to maneuver in 

between a wooden box to his left and a stack of collapsed cardboard shipping boxes to his right to 

get to the area to be cleaned, and then he had to somewhat awkwardly stoop or kneel to do the 

cleaning. His hand came within inches of the rotating shaft, and particularly considering his 

awkward stance he could have contacted the shaft through inadvertence, carelessness, or accident. 

(Ex. C-82). Any employee, regardless of knowledge and experience, would be deemed exposed 

to the hazard of the rotating shaft while performing the task depicted in the video at Exhibit C-82. 

See Fabricated Metal, 18 BNA OSHC at 1073 n. 4 (noting that the cited standard here is a 

specification standard, so that “non-compliance ... establishes the existence of a hazard”). A 

preponderance of the evidence establishes Dellaperuto working within the zone of danger of the 

hazardous unguarded shaft on Gluer #3. 

The machine guarding violation as to Gluer #3 and the LOTO violation that is grounded in 

Dellaperuto’s exposure to the same unguarded shaft are duplicative, because the abatement of one 

would necessarily result in the abatement of the other. N.E. Precast LLC, 26 BNA OSHC 2275, 

2279 (No. 13-1169 & 13-1170, 2018) (“Violations are duplicative where the abatement of one 

violation necessarily results in the abatement of the other”), aff'd, 773 F. App'x 70 (2d Cir. 2019) 

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(unpublished). 19 This is consistent with the “dovetailing” of the LOTO standard and the machine 

guarding standards set forth in subpart O of 29 C.F.R. Part 1910. GM-CPCG Okla., 22 BNA 

OSHC at 1022 (noting that the LOTO standard “dovetails with the requirements for the safe 

operation of machines during production, as prescribed by 29 C.F.R. Part 1910, subpart O”). 

Since the LOTO standard would not have been applicable to Dellaperuto’s cleaning the oil 

if the guard for the exposed shaft on Gluer #3 had been in place at the time, as between the two 

violations the LOTO violation as to Dellaperuto’s conduct alone is deemed vacated, and the 

machine guarding violation is maintained. 

Classification of § 1910.219(c)(2)(i) Violations 

The Secretary alleges that the violations of § 1910.219(c)(2)(i) should be classified as both 

“willful” and “serious.” (Complaint dated 7.2.2018, ¶ 6). Because violations were established as 

to Gluers #1 and #3, the evidence respecting those violative conditions is discussed below. 

19 In Northeast Precast, the Commission held that violations of different standards 

involving conduct on different days were duplicative because a single act could have abated both. 

The dissenting commissioner in Northeast Precast characterized Commission precedent for 

determining whether violations are duplicative as “confusing and conflicting.” N.E. Precast LLC, 

26 BNA OSHC at 2285 (dissent). In affirming the Commission’s decision in Northeast Precast, 

the Second Circuit recognized that “the Commission has applied several different standards in 

determining whether violations are duplicative.” 773 F. App’x at 72. 

The Secretary has not posited any argument in reply to Midvale’s contention that the 

violations are duplicative under Northeast Precast, and the undersigned discerns no grounds on 

which to distinguish Northeast Precast from the circumstances present here. Accordingly, the 

separate LOTO and machine guarding violations as they pertain to Dellaperuto’s cleaning activity 

on November 21, 2017, are duplicative because the abatement of one necessarily would have 

abated the other and vice versa. The remedy for duplicative violations is to vacate one of them. 

N.E. Precast LLC, 26 BNA OSHC at 2281-82. 

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Gluer #1 

With respect to Gluer #1, the unguarded shaft on Gluer #1 is aptly characterized as a serious 

violation in that there was a substantial probability that serious physical harm could result from 

contact with the unguarded rotating shaft. (T. 760-61). 

In prior inspections, Midvale had violated the same standard for failing to have the very 

same shaft on Gluer #1 unguarded. (T. 178). That violative condition was first identified on 

September 8, 2014, during OSHA inspection number 994212, and that violation became a final 

order on December 8, 2014, the day that Midvale executed an informal settlement agreement 

resolving the citation. (Ex. C-20 at 4 & 15; T. 356-57). About six months later, on May 25, 2015, 

OSHA determined during OSHA inspection 1066769 that Midvale had not abated that violative 

condition, and on November 25, 2015, OSHA issued to Midvale a citation for failure to abate. 

That citation for failure to abate became a final order on June 19, 2017, after Midvale resolved that 

citation by executing a formal settlement agreement. (T. 11; Ex. C-1 at 23; Ex. C-27 at 3). 

On October 18, 2017, the first day of the inspection here, the CO was accompanied by the 

plant manager, Mr. Northwood, when the CO spotted the unguarded shaft on Gluer #1 and directed 

Northwood’s attention to it. (T. 159, 697-98; Ex. C-18 at 6; Ex. C-19). Northwood pointed out to 

the CO that the guard for that shaft was lying on the floor below the shaft, and he remarked that 

the machine operator must have removed it and failed to reinstall it. (T. 162). Northwood then 

told the CO that he had fabricated that guard, apparently to abate the violation that was first 

identified in September 2014 and that had remained unabated as of May 2015. (T. 162; Ex. R-40 

at Bates 282 & 284-85). Even though during the inspection on October 18, 2017, the guard was 

located on the floor beneath the rotating shaft, Northwood did not thereafter reinstall the guard, 

nor apparently did he direct an employee to do so, and the shaft remained unguarded for the 

duration of the CO’s inspection, which continued for nearly another two months. (Ex. C-18 at 

46 
 

 

 

 

Bates 106). And even though Northwood testified that when he observes that a machine guard has 

been removed and not replaced that he “[a]ddress[es] it with the operator of the machine” by 

“talk[ing] to them about leaving it in an unsafe condition” (T. 698), it is evident that he did not do 

so with respect to the missing guard on Gluer #1. 

Another time during the CO’s inspection, after the CO brought to Northwood’s attention 

an unguarded shaft on another machine whose guard had been removed, Northwood remarked to 

the CO: “I tell these people all the time: You make sure it’s guarded and everything.” (T. 184). 

A floor manager, Mr. Dellaperuto, testified that employees at the plant “have a tendency 

of taking covers off and not putting them back on.” (T. 600). It is not surprising that Midvale 

employees have demonstrated this “tendency” not to replace guards, because Midvale has never 

disciplined an employee for a safety violation. (Ex. C-68 at 108-110). When Midvale employees 

engage in unsafe acts like removing and not replacing machine guards, Midvale has never imposed 

any discipline on the employee, not even a written warning or reprimand. (Ex. C-68 at 108-110). 

Rather than discipline employees for violating safety rules, Midvale’s practice has been to alert 

the employee to the unsafe condition and instruct the employee to correct it. There is no evidence 

of any Midvale employee suffering any adverse consequence for a safety violation, other than to 

be told to correct the unsafe condition or practice. 

Given the conspicuous location of the unguarded shaft on Gluer #1, plainly visible along a 

frequently traveled passageway, it is highly unlikely that neither the floor manager Dellaperuto 

nor the plant manager Northwood, each of whom spend hours every day on the floor of the plant, 

did not have continuing actual knowledge of the unguarded shaft on Gluer #1. And given that 

both were employed in their same supervisory positions the first two times Midvale was cited for 

having that very same shaft unguarded, and that Northwood had actually fabricated and installed 

47 
 

 

 

 

 

 

 

 

a guard for that shaft, their apparent failure to take action to correct this violative condition is even 

more notable. 

This evidence establishes that with respect to the unguarded shaft on Gluer #1, Midvale at 

various times both consciously disregarded the requirements of the Act, and was plainly indifferent 

to employee safety, justifying a willful classification. Midvale had a heightened awareness of the 

cited standard by dint of the two prior citations and Northwood’s own efforts to abate those 

violations by personally fabricating a guard for the shaft involved. See Revoli Constr. Co., Inc., 

19 BNA OSHC 1682, 1685-86 (No. 00-0315, 2001) (finding employer had a heightened awareness 

of the standard based on four previous citations of the same standard in the prior four years). 

Midvale demonstrated plain indifference to employee safety by failing to take any effective steps 

to eliminate the demonstrated tendency of employees not to replace guards after the employee has 

removed it. See id. at 1686 (employer was aware that its employee “had ignored the safety rule 

before and felt free to ignore the orders of his supervisor” but nevertheless “took no effective steps 

to remedy the known deficiencies in its practices and thus was plainly indifferent to employee 

safety”). “When an employer has clear warnings that unsafe practices or conditions persist, and 

decides to do little or nothing in response, ... it is strong evidence of willfulness.” Id. 

Gluer #3 

Mr. Dellaperuto, who is a floor manager, had actual knowledge that he was exposed to the 

hazard of the unguarded shaft of Gluer #3 that was rotating near his hand while he was stooped or 

kneeling to clean oil that had leaked on the floor. Midvale had been cited twice for not guarding 

the corresponding shaft on Gluer #4. (Ex. C-18, Ex. C-27). Dellaperuto, who held the same 

position as floor manager at the times of the prior inspections and citations, must have had actual 

knowledge that the corresponding unguarded shaft on Gluer #3 was non-compliant with the cited 

standard, and that he was exposed to that hazardous condition while cleaning the oil. His decision 

48 
 

 

 

to work within the zone of danger of the hazardous condition reflects both a conscious disregard 

to the requirements of the Act, and plain indifference to his own safety. This willful conduct is 

imputed to Midvale by virtue of his supervisory status. See Cont'l Roof Sys., Inc., 18 BNA OSHC 

1070, 1071 (No. 95-1716, 1997) (“Where the requisite state of mind is manifested through the 

actions of supervisory employees, it is imputed to the employer to the same extent as would be a 

supervisor's knowledge of violative conditions.”). 

Penalty for Willful Violation of § 1910.219(c)(2)(i) 

The maximum and minimum penalties for the willful violation here are respectively 

$129,336 and $9,239. 29 C.F.R. § 1903.15(d)(1) (2018). The Secretary proposed a penalty of 

$60,971 upon a determination that the gravity of the violation was “moderate” upon assessments 

that the severity of the injury that could result from the violation was “high,” and the probability 

that an injury or illness could occur as a result was “lesser,” with a 50% reduction to account for 

Midvale’s small size, and a 10% increase to account for history of violations. (T. 196-97; Ex. 

C-18 at Bates 102). 

Upon consideration that only two of the five alleged instances were proven, the probability 

of injury from the proven violations would be diminished, and so the unadjusted gravity-based 

penalty of $110,856 that the Secretary reckoned shall be set at $60,000. And upon further 

consideration that the two prior violations of the cited standard were a significant factor in 

determining the violation was willful, enhancing the penalty for history of violations is somewhat 

duplicative, and so that figure is not increased by 10% to account for history of prior violations as 

the Secretary had proposed. The undersigned concurs in the reduction of 50% to account for 

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Midvale’s small size, including its financial wherewithal. 20 The resulting assessed penalty of 

$30,000 penalty remains substantial, and it is appropriate and necessary to impress upon Midvale 

the importance of adequately enforcing the work rule that employees ensure guards are in place 

when machines are operating and of promoting a culture of safety at its plant. 

C. Machine Guarding for Zerand #2– 

§§ 1910.219(d)(1), 1910.219(e)(1)(i) 

(Repeat Citation 3, Items 3a and 3b) 21 

Items 3a and 3b of repeat Citation 3 pertain to a system of pulleys that are powered by a 

horizontal power transmission belt on the Zerand #2 machine. The pulleys and the transmission 

belt are situated between 26 inches and 42 inches above floor level. (Ex. C-38). The video at 

Exhibit C-36 depicts the pulleys and belt in operation. Item 3a alleges a violation of 

§ 1910.219(d)(1) because the pulleys are unguarded, and Item 3b alleges a violation of 

§ 1910.219(e)(1)(i) because the horizontal power transmission belt is unguarded. 22 

20 The undersigned concurs in the Secretary’s approach of reducing a penalty to account 

for an employer’s small size for a willful violation to a lesser extent than a penalty would be 

reduced for a serious violation (60%). 

21 The Secretary has withdrawn Item 3c of Citation 3, so that citation item will be vacated 

in the “Order” section infra. (Sec’y Br. 52). 

22 Subparagraphs (d)(1) and (e)(1)(i) of § 1910.219 provide in relevant part as follows: 

(d) Pulleys––(1) Guarding. Pulley, any parts of which are seven 

(7) feet or less from the floor or working platform, shall be guarded 

in accordance with the standards specified in paragraphs (m) and (o) 

of this section. ... 

(e) Belt, rope, and chain drives––(1) Horizontal belts and ropes. 

(i) Where both runs of horizontal belts are seven (7) feet or less from 

the floor level, the guard shall extend to at least fifteen (15) inches 

above the belt or to a standard height, except that where both runs 

of a horizontal belt are 42 inches or less from the floor, the belt shall 

be fully enclosed in accordance with paragraphs (m) and (o) of this 

section. 

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The pulleys and belt were not fully enclosed as required by the standard, except for the 

left-most pulley which was enclosed. (T. 220; Ex. C-38). The record does not contain a precise 

measurement of the horizontal distance of the unguarded portions of the belt and pulleys but the 

photos at Exhibits C-38 and R-26 suggest that this horizontal distance is about five feet based on 

the relative scale of the five-gallon plastic pail depicted in the photographs. 

The pulleys and belt are located on the “non-operator” or “gear” side of the approximately 

100-foot-long machine, along a pathway that is 42 inches wide. (T. 324, 692, 699; Ex. C-35 at 

Bates 155). On the other side of the 42-inch pathway is the Zerand #3 machine. (T. 208-09; Ex. 

C-36). The plant manager, Mr. Northwood, testified that employees access that area of the 

machine “only ... during the setup process” and that “[w]hen the machine is running and in 

production, no one is in that area of the machine.” (T. 691). The CO did not observe employees 

present near the unguarded belt and pulleys on Zerand #2 at any time over the course of his 

inspection. (T. 218). 

A preponderance of the evidence establishes that the cited standards apply, that the belts 

and pulleys were not fully enclosed and thus not compliant with the standards, and that Midvale 

had actual knowledge of the violative conditions. (Sec’y Br. 52-53). Midvale does not contend 

otherwise. Rather, Midvale contends that the Secretary did not establish employee access to the 

violative conditions, i.e., that it was “reasonably predictable either by operational necessity or 

otherwise (including inadvertence), that employees have been, are, or will be in the zone of 

danger.” Fabricated Metal, 18 BNA OSHC at 1074. (Resp’t Br. 15-16, 42). 

The photograph at Exhibit C-38 depicts scraps of paperboard that had collected on the 

floor, both underneath the belt and pulleys and further beyond them, underneath the machine. 

Accessing that scrap to clean it would necessitate reaching underneath and beyond the belt and 

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pulleys with an arm or possibly some instrument such as a broom or a raking instrument. (T. 218-

19). 

The evidence is insufficient to establish by a preponderance that while the machine is 

operating employee access to the zone of danger associated with the unguarded pulleys and belt 

is reasonably predictable. See Home Rubber Co. LP, 2021 WL 3929735, at *9 (employee access 

not shown where there was no evidence that the machine would be running and the unguarded 

machine part moving when employees would be near the unguarded part). However, the greater 

weight of the evidence establishes that employees encroach on the zone of danger while cleaning 

the paperboard scraps that collect under and beyond the belt and pulleys, as well as during setting 

up of the machine, when the machine is powered off but is not de-energized and locked out at its 

main disconnect using LOTO procedures. Employees within the zone of danger during cleaning 

underneath and beyond the belt and pulleys and while setting up the machine are exposed to injury 

from the unguarded belt and pulleys in the event of the unexpected energization of the machine 

during those activities. A preponderance of the evidence establishes that employees had access to 

the violative condition of the unguarded belt and pulleys. The alleged violations of subparagraphs 

(d)(1) and (e)(1)(i) are proven. 

As described supra in connection with the separate LOTO and machine guarding violations 

that arose out Mr. Dellaperuto’s cleaning oil from underneath Gluer #3, the separate LOTO and 

machine guarding violations respecting Zerand #2 are duplicative, so one must be vacated. 

Because the LOTO standard would not have been applicable to either setting up or cleaning around 

the belt and pulleys if Midvale had guarded them as the machine guarding standard requires, the 

violative conduct relating to the LOTO standard shall be vacated as duplicative. 

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Classification of § 1910.219(d)((1) and 1910.219(e)(1)(i) Violations 

The Secretary alleges these are repeat violations. A violation may be deemed repeated “if, 

at the time of the alleged repeated violation, there was a Commission final order against the same 

employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 

16183, 1979). The Secretary can prove substantial similarity by showing the employer failed to 

comply with the same standard as in the prior citation. Id. This prima facie showing of substantial 

similarity may be rebutted “by evidence of the disparate conditions and hazards associated with 

these violations of the same standard.” Id. 

The predicate violations that support the repeat classifications are based on Midvale’s 

violations of the same standards that occurred on January 14, 2014, in connection with OSHA 

inspection 954509, which became a final order on February 20, 2014, upon the execution of an 

informal settlement agreement. (Ex. C-71; T. 459). In that prior inspection, OSHA cited Midvale 

for not having guards on all three of the Zerand machines in the location of the exposed belt and 

pulleys identified on the Zerand #2 machine in the inspection here. (Exs. C-71 & C-74). After 

that inspection, Midvale guarded the belts and pulleys on Zerands #1 and #3, and those two 

machines had guards in place at the time of the inspection here. (T. 216). The evidentiary record 

is unclear on whether Midvale ever installed a similar guard on Zerand #2, but in any event, the 

belt and pulleys were unguarded at the time of the inspection here. (T. 216-17). In other words, 

the violative conditions identified here on Zerand #2 are identical to the violative conditions that 

had been identified on that same machine identified in connection with the 2014 violations. (See 

Ex. C-74 at 2-3 for photos of Zerand #2’s unguarded belt and pulleys from prior inspection; T. 

227-28). The violations are properly characterized as repeated violations. 

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Penalty for Grouped Repeat Violations of 

§§ 1910.219(d)(1) & 1910.219(e)(1)(i) 

The maximum penalty for a repeat violation in connection with the inspection here is 

$129,336. 29 C.F.R. § 1903.15(d)(2) (2018). The violations are properly grouped for a single 

penalty because both violations are abated by the same corrective action of enclosing the belt and 

pulleys mechanism. (T. 213). See H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-

4765, 1981) (assessing a single penalty for distinct but overlapping violations). 

In addition to classifying the violations as “repeated,” the Secretary regarded the violations 

to be “serious” in nature for purposes of formulating a proposed gravity-based penalty. (Ex. C-35 

at Bates 157 & 162; T. 217). The undersigned concurs in the Secretary’s assessment that the 

gravity of the two violations is “moderate,” so that the gravity-based penalty prior to applying a 

multiplier for a repeated violation and other adjustments based on statutory factors would be 

$9,239. (Ex. C-35 at Bates 153 & 158; T. 224-25). The undersigned concurs in doubling that sum 

to account for the repeated nature of the violations and concurs further in reducing that resulting 

sum by 60% to account for Midvale’s small size, which includes consideration of Midvale’s 

financial wherewithal. The undersigned does not concur in increasing that resulting sum by 10% 

to account for history of the violations, because the doubling of the gravity-based penalty to 

account for its repeated nature sufficiently addresses this statutory factor. The undersigned 

concurs with the Secretary’s assessment that no penalty reduction is appropriate for the “good 

faith” factor. The resulting sum is not reduced by one-third due to the Secretary having withdrawn 

the third grouped Item 3c of Citation 3, which pertained to an unguarded sprocket wheel and chain 

that was co-located with the unguarded belt and pulleys. The hazard that the Secretary had alleged 

as associated with the unguarded sprocket and wheel was substantially the same hazard as the 

Secretary established for the unguarded belt and pulleys. (Ex. C-35 at Bates 162-66). 

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Accordingly, a penalty of $7,391 is assessed for the two grouped violations of § 1910.219 

in Items 3a and 3b of Citation 3. 

D. Machine Guarding for “Window Box” Machine– 

§ 1910.219(f)(1) 

(Repeat Citation 3, Item 4) 

Item 4 of Citation 3 alleges a repeat violation of § 1910.219(f)(1), which requires that 

power transmission gears be guarded. 23 Midvale is alleged to have violated this standard on or 

about October 18, 2017, “when employees worked and were exposed to an unguarded or nonenclosed gear that was forty five (45) inches above the floor level on the Window Machine - Model 

5A.” 

Photographs in Exhibit C-14 show the unguarded gear (marked by a superimposed arrow), 

and the video at Exhibit C-13 shows the gear rotating during machine operations. (T. 231-32). 

The gear is 4.5 inches in diameter and is situated about 45 inches above floor level. (Ex. C-40 at 

Bates 169). Nearly all of it is situated on the outer margin of the machine, although at levels below 

the gear the outer margin of the machine appears to extend about one foot beyond the outside 

margin of the gear. (Ex. C-14). The gear is situated 38 inches from the machine’s main control 

panel. (Ex. C-40 at Bates 169). When the machine is running the gear turns at roughly 20 RPM. 

23 Section 1910.219(f)(1) provides: 

(1) Gears. Gears shall be guarded in accordance with one of the 

following methods: 

(i) By a complete enclosure; or 

(ii) By a standard guard as described in paragraph (o) of this 

section, at least seven (7) feet high extending six (6) inches above 

the mesh point of the gears; or 

(iii) By a band guard covering the face of gear and having flanges 

extended inward beyond the root of the teeth on the exposed side or 

sides. Where any portion of the train of gears guarded by a band 

guard is less than six (6) feet from the floor a disk guard or a 

complete enclosure to the height of six (6) feet shall be required. 

55 
 

 

 

 

 

 

 

 

(See Ex. C-13). 

As described in connection with the LOTO violation, the video at Exhibit C-13 depicts 

employees attempting to clear a jam in the machine without the e-stop engaged and without 

utilizing LOTO procedures, in violation of the LOTO standard. During this effort, the machine’s 

operator stood to the right of the unguarded gear and appears to have been within two feet or closer 

to it. (Ex. C-13; T. 321-22). 

A preponderance of the evidence establishes that the cited standard applies, that the gear 

was not guarded as the standard requires, and that Midvale had actual knowledge of the violative 

condition. (Sec’y Br. 52-53). Again, Midvale does not contend otherwise. Rather, Midvale 

contends that the Secretary did not establish employee access to the violative condition, i.e., that 

it was “reasonably predictable either by operational necessity or otherwise (including 

inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal, 

18 BNA OSHC at 1074. (Resp’t Br. 16 & 43). 

As discussed above in connection with the LOTO violation that was established with 

respect to the unjamming effort depicted in the video at Exhibit C-13, the employee near the gear 

during that activity was exposed to the risk of injury from the unexpected energization of the 

machine and the movement of the exposed gear. 24 This is so notwithstanding that the gear itself 

is relatively slow moving when in operation, revolving at about 20 RPM. Section 1910.219(f)(1) 

24 Unlike the two instances described above where abatement of the machine guarding 

violations would have abated LOTO violations associated with the same unguarded part, the 

abatement of the machine guarding violation here would not have abated the corresponding LOTO 

violation, because the employee would have still been exposed to risk of injury from the 

unexpected energization of the point of operation in which the employees had their hands. Thus, 

the machine guarding violation here that corresponds to the LOTO violation involving the window 

machine is not duplicative under the Commission’s test in Northeast Precast. Nor is it duplicative 

under any other tests articulated in Commission precedent for determining whether violations are 

duplicative. See N.E. Precast LLC, 26 BNA OSHC at 2279 (summarizing other tests). 

56 
 

 

 

 

 

 

is a specification standard, so non-compliance with it establishes the existence of a hazard. 

Fabricated Metal, 18 BNA OSHC at 1073 n. 4. 

Apart from the employee’s exposure to the unguarded gear while clearing the paper jam 

when the gear was not moving, the proximity of the unguarded gear to any person standing at or 

moving alongside the machine while it is in operation makes it reasonably predictable that 

“employees have been, are, or will be in the zone of danger” associated with the gear when the 

machine is in operation. Fabricated Metal, 18 BNA OSHC at 1074. 

A preponderance of the evidence establishes that Midvale violated the cited standard in the 

manner alleged in Item 4 of Citation 3. 

Classification of § 1910.219(f)(1) Violation 

The Secretary alleges this is a repeat violation based on Midvale’s violation of the same 

standard that occurred on January 14, 2014, in connection with OSHA inspection 954509, and 

which became a final order on February 20, 2014, upon the execution of an informal settlement 

agreement. (Ex. C-71; T. 459). In that prior inspection, OSHA cited Midvale for violating the 

same standard because employees had removed and not replaced the guard for a slow-moving gear 

on the Zerand #2 that rotated only when employees were staging a roll of paperboard on the 

machine. (Ex. C-75 at Bates 221). 

Proof of Midvale’s violation of the same standard constitutes prima facie showing of 

substantial similarity. The fact the prior violation pertained to an unguarded gear on a different 

machine does not establish disparate conditions or hazards associated with the predicate violation 

of the same standard and the violation here. Rather, both violations present a “caught-in” hazard 

that could result in crushing or amputation, laceration, or fracture. (T. 235). The evidence supports 

the Secretary’s classification of the violation as repeated. 

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Penalty for Repeat Violation of § 1910.219(f)(1) 

In addition to classifying the violation as “repeated,” the Secretary regarded the violation 

to be “serious” in nature for purposes of formulating a gravity-based penalty. (Ex. C-40 at Bates 

167; T. 231). The undersigned concurs in the Secretary’s assessment that the gravity of the 

violation is “moderate,” so that the gravity-based penalty prior to applying a multiplier for a repeat 

violation and other adjustments based on statutory factors would be $9,239. (Ex. C-40 at Bates 

168; T. 235-36). The undersigned concurs in doubling that sum to account for the repeated nature 

of the violation and concurs further in reducing that resulting sum by 60% to account for Midvale’s 

small size, which includes consideration of Midvale’s financial wherewithal. The undersigned 

does not concur in increasing that resulting sum by 10% to account for history of the violations, 

because the doubling of the gravity-based penalty to account for its repeated nature sufficiently 

addresses this statutory factor. The undersigned concurs with the Secretary’s assessment that no 

penalty reduction is appropriate for the “good faith” factor. Accordingly, a penalty of $7,391 will 

be assessed for the repeated violation of § 1910.219(f)(1) in Item 4 of Citation 3. 

D. Powered Industrial Truck Training 

§ 1910.178(l)(1)(i) 

(Repeat Citation 3, Item 2) 

Item 2 of Citation 3 alleges a repeat violation of the training requirements specified by the 

powered industrial truck standard codified at 29 C.F.R. § 1910.178. The citation item alleges that 

Midvale violated subparagraph (l)(1)(i) of that standard, which requires that employers “ensure 

that each powered industrial truck operator is competent to operate a powered industrial truck 

safely, as demonstrated by the successful completion of the training and evaluation specified in 

this paragraph (l).” The training provided must “consist of a combination of formal instruction 

(e.g., lecture, discussion, interactive computer learning, video tape, written material), practical 

training (demonstrations performed by the trainer and practical exercises performed by the 

58 
 

 

 

 

 

 

 

 

 

trainee), and evaluation of the operator’s performance in the workplace.” § 1910.178(l)(2)(ii). 

The topics that “initial training” must address are prescribed in subparagraph (l)(3) and include 

thirteen specific “truck-related topics” and nine specific “workplace-related” topics. 

§ 1910.178(l)(3). Employers are permitted to avoid providing “duplicative training” to an 

employee who has received training elsewhere if the employer determines that such prior training 

is “appropriate” to the employer’s “truck and working conditions” and the employee “has been 

evaluated and found competent to operate the truck safely.” § 1910.178(l)(5). Employers are 

required to maintain a certification record “that each operator has been trained and evaluated as 

required by this paragraph (l).” § 1910.178(l)(6). 

The CO testified that while inspecting the Midvale plant on October 18, 2017, he observed 

employees operating two powered industrial trucks, but he did not testify to the identities of those 

employees. (T. 201-02). The CO asked the plant manager Northwood about powered industrial 

truck training and Northwood showed him a training DVD, a training log that had names of 

employees reflected (but not a date of training or the identity of the trainer), and an incomplete 

“Performance Test for Forklift Operators” evaluation form. (Ex. C-32 at Bates 151). 

An employee named Vincent Bowers started working at Midvale in May 2017, and 

Midvale provided him with forklift operator training on November 7, 2017. (Ex. C-67). There is 

no evidence that Bowers, who was a Zerand operator, had ever operated a forklift at Midvale 

before or after receiving this training. (Ex. C- 67; T. 108-11, 210). 

The CO testified that on November 9, 2017, he spoke to an employee named Harvey 

Dawson who told the CO that he been trained on forklift operation sometime before the current 

inspection, although the CO did not testify to whether Dawson provided any details regarding 

when Dawson had received that training or the content of that training. (T. 202). 

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The CO served Midvale with a subpoena duces tecum on November 9, 2017, that required 

Midvale to provide on November 13, 2017, the following material: “Copies of any and all 

documents containing Midvale’s Powered Industrial Truck (Forklift) Program to include formal 

instruction, practical training, evaluation, and employee training records, including those stored 

electronically.” (Ex. C-33; T. 198). In response to the subpoena, Midvale produced a training 

attendance log indicating that fourteen named employees had received “Forklift Operator Safety 

Training” on November 7, 2017, a one-page blank 20-question quiz, and a one-page blank 25-item 

“Performance Checklist for Forklift Operators.” (Ex. C-34; T. 203-04). 

The only documentation presented in evidence that reflects any forklift training prior to the 

training provided on November 7, 2017, was forklift training that Midvale provided to nine 

employees about 21 months earlier on January 27, 2016. (Ex. R-40 at 81; Ex. R-12). 

The plant manager, Northwood, testified that Midvale hires only experienced forklift 

drivers and tests them during a prospective employee’s interview. Northwood testified that if the 

interviewed applicant is ultimately hired, then on their first day at work “we'll spend more lengthy 

time with them, familiarizing them with the machine,” and “then normally we'll have one of the 

other drivers spend some time with them, an hour or so after we've done the initial ... training of 

the person.” (T. 685-86). Northwood testified further that Midvale has training videos and 

associated written tests that it administers “when time permits.” (T. 686). 

The Secretary alleges that Midvale violated § 1910.178(l)(1)(i) on or about October 18, 

2017, because employees who were operating Midvale’s two forklifts “had not received equipment 

specific formal instruction, practical training, or an evaluation as to their ability to safely operate 

the equipment.” Midvale argues that it was exempted from providing the training required by 

60 
 

 

 

 

 

 

 

 

 

subparagraph (l) to its forklift operators by the “avoidance of duplicative training” provision of 

subparagraph (l)(5). (Resp’t Br. 47-48). 

The whole of the evidence is insufficient to establish that Midvale’s process of assessing 

the adequacy of the prior training and operational competence of prospective forklift operators 

during the employee interview process, and then more fully evaluating their competence to operate 

Midvale’s forklifts safely at Midvale’s plant after such a prospective operator is hired, failed to 

meet the minimum requirements of the training standard. Northwood’s testimony permits the 

inference that as part of the interview process for a position that entails operating one of Midvale’s 

two forklifts, Midvale assesses whether prior training that the applicant has received “is 

appropriate to the truck and working conditions encountered” at the Midvale plant as subparagraph 

(l)(5) requires. 25 If that applicant is hired, then on their first day at work Midvale evaluates the 

employee’s competence to operate the forklift safely at the plant. Such an evaluation and 

determination of competence is required under subparagraph (l)(5) for the employee to be exempt 

from having to receive the formal instruction, practical training, and evaluation that would 

otherwise be required under paragraph (l). 

As previously noted, subparagraph (l)(6) of the standard requires an employer to maintain 

a certification record that each forklift operator is trained and evaluated as the standard requires. 

That certification record must include the following information: “the name of the operator, the 

date of the training, the date of the evaluation, and the identity of the person(s) performing the 

training or evaluation.” Midvale did not create any such certification record as to any of its forklift 

25 In operating a forklift as part of the interview process, the applicant would have the status 

of “trainee,” who under subparagraph (l)(2)(i) may operate a forklift under specified conditions as 

follows: “Trainees may operate a powered industrial truck only: (A) Under the direct supervision 

of persons who have the knowledge, training, and experience to train operators and evaluate their 

competence; and (B) Where such operation does not endanger the trainee or other employees.” 

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operators. However, the Secretary has not alleged that Midvale violated the certification record 

requirement of subparagraph (l)(6), and so that failure to comply with subparagraph (l)(6) is not 

adjudicated herein. 

While the lack of the required certification records is somewhat probative on whether 

Midvale’s assessment of the previous training that newly hired employees had received and 

Midvale’s evaluation of those newly hired employees’ competence to operate Midvale’s forklifts 

at Midvale’s plant safely met the requirements of subparagraph (l)(6), the absence of certification 

records does not conclusively establish that Midvale failed to conduct the assessments and 

evaluations in the manner that subparagraph (l)(5) requires. Cf. N & N Contractors, Inc., 18 BNA 

OSHC 2121, 2126-27 (No. 96-0606, 2000) (“If the employer rebuts the allegation of a training 

violation by showing that it has provided the type of training at issue, the burden shifts to the 

Secretary to show some deficiency in the training provided”), aff’d, 255 F.3d 122 (4th Cir. 2001). 

The evidence is insufficiently weighty to establish by a preponderance that Midvale was 

non-compliant with the training requirements of § 1910.178(l)(1)(i) in the manner alleged, so Item 

2 of Citation 3 is vacated. 

E. Eye and Face Protective Equipment 

§ 1910.133(a)(1) 

(Repeat Citation 3, Item 1) 

Item 1 of Citation 3 alleges a repeat violation of the eye and face protection standard 

codified at 29 C.F.R. § 1910.133(a), which requires employers to “ensure that each affected 

employee uses appropriate eye or face protection when exposed to eye or face hazards from ... 

liquid chemicals.” The Secretary alleges that Midvale violated this standard on or about October 

18, 2017, when “employees used liquid chemicals such as but not limited to ... Denatured Alcohol 

and ... Acetone on a daily basis to perform activities including cleaning metal plates and rollers” 

on the printing and die-cutting machines (the Zerand machines). 

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“To establish the applicability of a PPE [personal protective equipment] standard that, by 

its terms, applies only where a hazard is present,” Secretary must demonstrate that “there is a 

significant risk of harm and that the employer had actual knowledge of a need for protective 

equipment, or that a reasonable person familiar with the circumstances surrounding the hazardous 

condition, including any facts unique to the particular industry, would recognize a hazard requiring 

the use of PPE.” Wal-Mart Distrib. Ctr. No. 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 

2015), aff’d in part and vacated in part on other grounds, 819 F.3d 200 (5th Cir. 2016). 

The use of acetone and denatured alcohol at Midvale’s plant presents a significant risk of 

harm. The safety data sheets for these materials establish that both acetone and denatured alcohol 

are “liquid chemicals” within the meaning of the standard and that both present a significant risk 

of harm. Midvale employees use acetone and denatured alcohol to clean each of the three Zerand 

machines about two or three times each week for about five to ten minutes at a time, first by using 

acetone to remove adhesive from parts of the machine and then using denatured alcohol to remove 

the residual acetone. (T. 110; Ex. C-67). The manufacturer’s safety data sheet for acetone states 

that acute eye contact may cause “serious eye irritation” and “corneal injury” and identifies the 

“exposure control/personal protection” for eye protection to be the use of “splash goggles.” (Ex. 

C-48 at 7, 8 & 11). The manufacturer’s safety data sheet for the denatured alcohol includes the 

precautionary statement to wear “eye protection/face protection,” cautions that both acute skin 

contact and eye contact “may cause irritation,” and states that “chemical splash goggles should be 

worn to prevent eye contact.” (Ex. C-48 at 15, 16 & 19). 26 

26 Midvale had safety data sheets on hand for both the denatured alcohol and acetone, 

although they were dated in 2009 and did not conform to the specified current format for that 

information, so the CO obtained updated safety data sheets from the manufacturer, and those more 

current safety data sheets were offered and received in evidence without objection. (T. 257-59; 

Ex. C-48). Midvale was not cited for having on hand only the outdated data sheets. (T. 258). 

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Midvale had both actual and constructive knowledge of the need for the wear of eye or face 

protection when employees cleaned the Zerand machines using acetone and denatured alcohol. As 

to actual knowledge, a supervisory employee, Charles Thorne, testified that the prescribed 

procedure for cleaning the Zerand machines includes wearing “safety glasses as well as gloves in 

order to, you know, protect your hands and your eyes” from the acetone. (T. 625). As to 

constructive knowledge, the safety data sheets for those materials establish that a reasonable 

person familiar with the circumstances surrounding the use of acetone and denatured alcohol to 

clean the machines would recognize that a hazard requiring the use of eye or face protection exists. 

The cited standard applies to the activity of cleaning the Zerand machines using acetone and 

denatured alcohol. 

Midvale did not comply with the cited standard. An employee named Jose Cordero had 

been employed by Midvale for twenty years, and his job is to operate a Zerand machine. Cordero 

told the CO that when cleaning the Zerand machine using acetone and denatured alcohol that he 

wears vinyl gloves but does not wear safety glasses or a face shield. (Ex. C-67). Another 

employee, Vincent Bowers, who started working at Midvale in May 2017 and who also operated 

a Zerand machine, told the CO he wears rubber gloves when cleaning the machine with acetone 

and denatured alcohol but does not wear safety glasses or a face shield. (Ex. C-67). There was no 

evidence controverting the signed statements of Cordero and Bowers, and they are sufficient to 

establish by a preponderance of the evidence that Midvale did not comply with the cited standard. 

Their statements similarly establish that Midvale employees were exposed to a hazard that 

compliance with the cited standard would have prevented. 

Midvale had both actual and constructive knowledge of the violative condition. It is 

reasonably inferable that Midvale had actual knowledge that its twenty-year employee, Mr. 

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Cordero, habitually did not wear eye or face protection when cleaning the Zerand machine with 

acetone and denatured alcohol. The same reasonable inference arises from plant manager 

Northwood’s response to the CO’s question about whether goggles were available to employees 

who handled acetone. According to the CO, Northwood said to him: “[H]ow could it be my fault, 

my problem, if the manufacturer just put this label on the side of the can; that's just there only for 

liability purposes, so I don't see why we have to comply with such a thing because it's just there 

because some manufacturer wanted to just put that on the side of their can.” (T. 398-99). 

Northwood’s rejoinder to the CO’s question supports the reasonable inference that Northwood had 

actual knowledge that employees did not use eye or face protection when cleaning with the acetone 

and denatured alcohol. His actual knowledge is imputable to Midvale. Am. Eng’g & Dev. Corp., 

23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (noting that knowledge may be imputed to the 

employer through its supervisory employee). 

A preponderance of the evidence also establishes that Midvale had constructive knowledge 

that employees did not use eye or face protection while cleaning with acetone and denatured 

alcohol. N&N Contractors, Inc., 18 BNA OSHC 2121, 2122 (No. 96-0606, 2000) (ruling that to 

establish constructive knowledge, the Secretary must show that the employer, with the exercise of 

reasonable diligence, could have known of the violative condition), aff'd, 255 F.3d 122 (4th Cir. 

2001). Midvale’s owner and president, David Frank, testified that Midvale maintains “eye guards” 

at the plant and that employees are instructed “to wear them ... where applicable.” (T. 527). He 

testified further that when an employee fails to wear PPE when required that “[w]e tell them to put 

it on,” but that if an employee repeatedly fails to wear required PPE, Midvale does not discipline 

the employee further. Mr. Frank explained: 

If we were to put in place a disciplinary action that led to 

dismissal, between our high absentee rate in the factory, we would 

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— we would probably have half our work force. On top of which, 

it takes time to train these people. So we cannot afford, from a 

production standpoint, to not work with these people and ask them, 

when we see them not wearing protective gear, to put it on. (T. 528). 

This testimony of Midvale’s president is indicative of a company ethos that exalts production over 

safety requirements. This cannot be countenanced. Worldwide Mfg., Inc., 19 BNA OSHC 1023, 

1024-25 (No. 97-1381, 2000) (commenting that an “attitude of sacrificing employee safety for the 

sake of production is completely contrary to the intent of the Act”). Similarly, effectively shifting 

complete responsibility for complying with work rules to employees is an untenable approach to 

workplace safety. See Brown & Root, Inc., 7 BNA OSHC 2074 (No. 16162, 1979) (“The Act ... 

places final responsibility for compliance on the employer,” and so an “employer cannot shift this 

responsibility to an employee by a work rule that is not effectively communicated and enforced.”). 

Midvale’s near non-existent efforts to enforce the work rule that employees wear eye or face 

protection when cleaning the machines with acetone and denatured alcohol reflect a failure to 

exercise reasonable diligence. N&N Contractors, Inc, 18 BNA OSHC at 2124 (finding 

constructive knowledge where employer knew that employees routinely violated its work rule). 

The great weight of the evidence establishes that Midvale violated the cited standard in the 

manner alleged. 

The violation is properly classified as repeated. Midvale violated the same standard in 

connection with inspection number 1066769, which became a final order on June 19, 2017. (T. 

11; Ex. C-1 at 7 & 23). This prima facie showing of substantial similarity and is not rebutted by 

evidence of disparate conditions and hazards between the two violations and establishes the 

violation as repeated. Potlatch Corp., 7 BNA OSHC at 1063. 

The maximum penalty for a repeat violation in connection with the inspection here is 

$129,336. 29 C.F.R. § 1903.15(d)(2) (2018). In addition to classifying the violation as “repeated,” 

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the Secretary regarded the violation to be “serious” in nature for purposes of formulating a 

proposed gravity-based penalty. (Ex. C-30 at Bates 138; T. 400-01). The undersigned concurs in 

the Secretary’s assessment that the gravity of the violation is “moderate,” based on determinations 

that the severity of an injury resulting from the violation was “high” 27 and the probability of such 

an injury was “lesser.” Based on those assessments, the gravity-based penalty prior to applying a 

multiplier for a repeated violation and applying other adjustments based on statutory factors was 

$9,239. (Ex. C-30 at Bates 138-39; T. 400-01). The undersigned concurs in doubling that sum to 

account for the repeated nature of the violations and concurs further in reducing that resulting sum 

27 Midvale’s argument that the violation should be regarded as other-than-serious rather 

than serious in nature for purposes of the penalty assessment is rejected. Midvale bases its 

argument largely on a 2015 other-than-serious citation that it accepted for having failed to develop, 

maintain, or implement a hazard communication program as required by § 1910.1200(e)(1) with 

respect to acetone and denatured alcohol. (Resp’t Br. 45-46). OSHA assessed the severity of that 

prior violation as “minimal” because the CO who conducted that 2015 inspection had concluded, 

whether accurately or not, that employees were wearing safety glasses when handling those 

materials, notwithstanding the absence of a hazard communication program. (Ex. C-73 at Bates 

242; T. 453-54). Here, the great weight of the evidence is that non-supervisory employees did not 

wear eye or face protection when using the materials, and that Midvale did not enforce the work 

rule requiring that they do so. The employees’ proven exposure to actual contact with the 

hazardous liquid chemicals supports the “high” severity assessed for the violation of the PPE 

standard. 

Midvale complains further about the characterization of the “severity” of an injury 

resulting from the violation to be “high” based on the justification that “employees with chronic 

exposure would suffer neurological and physiological damage.” (Resp’t Br. 17, 45-46). (See 

Violation Worksheet, Ex. C-30 at Bates 138). That stated justification may have been based on a 

misreading of the safety data sheets for acetone and denatured alcohol that conflated “acute” 

exposure by splashing into the eye with chronic and prolonged inhalation (a hazard that eye or face 

protection would not protect against). (Ex. C-48; T. 445-48). This apparent misreading 

notwithstanding, the risk of eye irritation and corneal damage from acute contact supports the 

assessment that the severity of injury from the violation was “high.” See Stearns-Roger, Inc., 7 

BNA OSHC 1919, 1921 (No. 76-2326, 1979) (noting “that the eye is an especially delicate organ 

and that any foreign material in the eye presents the potential for injury”); Vanco Constr., Inc., 11 

BNA OSHC 1058, 1061-62 (No. 79-4945, 1982) (finding that “given the delicateness of the eye, 

serious physical harm would be substantially probable if an employee were struck in the eye by a 

particle or chip of concrete”) aff’d, 723 F.2d 410 (5th Cir. 1984). 

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by 60% to account for Midvale’s small size, which includes consideration of Midvale’s financial 

wherewithal. The undersigned does not concur in increasing that resulting sum by 10% to account 

for history of the violations, because the doubling of the gravity-based penalty to account for its 

repeated nature sufficiently addresses this statutory factor. The undersigned concurs with the 

Secretary’s assessment that no penalty reduction is appropriate for the “good faith” factor. 

Accordingly, a penalty of $7,391 is assessed for the violation of § 1910.133(a)(1) for Item 1 of 

Citation 3. 

F. Hazard Communication Standard– 

§§ 1910.1200(e)(1), 1910.1200(h)(1), & 1910.1200(f)(6) 

(Repeat Citation 3, Items 6a, 6b and 6c) 

In repeat Citation 3, the Secretary alleges three violations, grouped for penalty purposes, 

of the hazard communication standard (HCS), codified at 29 C.F.R. § 1910.1200, “Hazard 

Communication.” Grouped items 6a, 6b, and 6c of the citation allege respectively violations of 

subparagraphs (e)(1), (h)(1), and (f)(6) of the HCS. 

Item 6a alleges Midvale violated subparagraph (e)(1) on or about October 18, 2017, in that 

it had not implemented and maintained “at the workplace a written hazard communication program 

which describes how the criteria specified in 29 CFR 1910.1200(f), (g), and (h) will be met.” 

Item 6b alleges Midvale violated subparagraph (h)(1) on or about October 18, 2017, in that 

it had not provided “effective information and training on hazardous chemicals to employees in 

their work area at the time of their initial assignment and whenever a new hazard that the employee 

had not been previously trained about was introduced into their work area.” 

Item 6c alleges Midvale violated subparagraph (f)(6) on or about October 18, 2017, in that 

it had not ensured containers of a hazardous chemical identified as “SF Midvale Pizza 75 RedCCNB,” which is an ink that is used to print on paperboard, “were labeled, tagged, or marked with 

the information specified under paragraphs (f)(6)(i) through (f)(6)(ii).” 

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The cited and other relevant provisions of the HCS at § 1910.1200 provide as follows: 

(e) Written hazard communication program. (1) Employers shall 

develop, implement, and maintain at each workplace, a written 

hazard communication program which at least describes how the 

criteria specified in paragraphs (f), (g), and (h) of this section for 

labels and other forms of warning, safety data sheets, and employee 

information and training will be met, and which also includes the 

following: 

(i) A list of the hazardous chemicals known to be present using 

a product identifier that is referenced on the appropriate safety data 

sheet ... 

* * * 

(f) Labels and other forms of warning—(1) Labels on shipped 

containers. The chemical manufacturer, importer, or distributor 

shall ensure that each container of hazardous chemicals leaving the 

workplace is labeled, tagged, or marked[,] ... [on which] the 

following information shall be provided: 

(i) Product identifier; 

(ii) Signal word; 

(iii) Hazard statement(s); 

(iv) Pictogram(s); 

(v) Precautionary statement(s);... 

(6) Workplace labeling. Except as provided in paragraphs (f)(7) 

and (f)(8) of this section, the employer shall ensure that each 

container of hazardous chemicals in the workplace is labeled, tagged 

or marked with either: 

(i) The information specified under paragraphs (f)(1)(i) through 

(v) of this section for labels on shipped containers; or, 

(ii) Product identifier and words, pictures, symbols, or 

combination thereof, which provide at least general information 

regarding the hazards of the chemicals, and which, in conjunction 

with the other information immediately available to employees 

under the hazard communication program, will provide employees 

with the specific information regarding the physical and health 

hazards of the hazardous chemical. 

* * * 

(g) Safety data sheets. (1) ... Employers shall have a safety data 

sheet in the workplace for each hazardous chemical which they 

use.... 

(8) The employer shall maintain in the workplace copies of the 

required safety data sheets for each hazardous chemical, and shall 

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ensure that they are readily accessible during each work shift to 

employees when they are in their work area(s).... 

* * * 

(h) Employee information and training. (1) Employers shall 

provide employees with effective information and training on 

hazardous chemicals in their work area at the time of their initial 

assignment, and whenever a new chemical hazard the employees 

have not previously been trained about is introduced into their work 

area. Information and training may be designed to cover categories 

of hazards (e.g., flammability, carcinogenicity) or specific 

chemicals. Chemical-specific information must always be available 

through labels and safety data sheets. 

(2) Information. Employees shall be informed of: 

(i) The requirements of this section; 

(ii) Any operations in their work area where hazardous chemicals 

are present; and, 

(iii) The location and availability of the written hazard 

communication program, including the required list(s) of hazardous 

chemicals, and safety data sheets required by this section. 

(3) Training. Employee training shall include at least: 

(i) Methods and observations that may be used to detect the 

presence or release of a hazardous chemical in the work area (such 

as monitoring conducted by the employer, continuous monitoring 

devices, visual appearance or odor of hazardous chemicals when 

being released, etc.); 

(ii) The physical, health, simple asphyxiation, combustible dust, 

and pyrophoric gas hazards, as well as hazards not otherwise 

classified, of the chemicals in the work area; 

(iii) The measures employees can take to protect themselves 

from these hazards, including specific procedures the employer has 

implemented to protect employees from exposure to hazardous 

chemicals, such as appropriate work practices, emergency 

procedures, and personal protective equipment to be used; and, 

(iv) The details of the hazard communication program developed 

by the employer, including an explanation of the labels received on 

shipped containers and the workplace labeling system used by their 

employer; the safety data sheet, including the order of information 

and how employees can obtain and use the appropriate hazard 

information. 

Midvale had previously been cited for violating each of the subparagraphs of the HCS cited 

here in connection with OSHA inspection number 1081074, which had been conducted in July 

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2015. Midvale accepted those three citation items in a formal settlement agreement, which became 

a final order on January 28, 2016. (T. 460; Exs. C-73 and C-77). 

To abate the violation of subparagraph (e)(1) that had become a final order in January 2016, 

Midvale developed and implemented a written hazard communication program (HCP). The 

written HCP identified Mr. Frank, the president of Midvale, as the Program Administrator (Ex. R40 at Bates 298), and assigned him the following program responsibilities: 

• Compile and maintain an “inventory list” of hazardous chemicals used 

by Midvale employees as required by subparagraph (e)(1)(i) of the 

HCS. (Ex. R-40 at Bates 299-300). 

• Ensure that “all program elements and training are carried out,” such 

training including “initial training on the [HCS] and [Midvale’s HCP] 

before starting work,” annual training for all employees, and training 

each new employee in a “health and safety orientation” on the HCS and 

Midvale’s HCP, with all such training to include the elements specified 

in subparagraph (h)(1) of the HCS, and providing further that all training 

“be documented and kept on file.” (Ex. R-40 at Bates 301 & 303). 

• “[V]erify that all containers of classified hazardous chemicals in the 

workplace are clearly and prominently labeled” to reflect information 

required to be on the container labels by subparagraph (f)(6) of the HCS. 

(Ex. R-40 at Bates 299). 

Midvale provided the specified training to sixteen employees on March 3 & 4, 2016. (Ex. 

R-40 at Bates 304-05; T. 316). Midvale did not provide training in the HCS or its HCP to any 

employees who were hired after that March 2016 training, most if not all of whom worked in areas 

of the plant where hazardous chemicals were present. (Ex. C-45 at Bates 191-92, 198-99; C-67 at 

Bates 459; Ex. C-56 at Bates 437 & 441; T. 423-24). Those employees who started working at 

Midvale after the training that was provided in March 2016 did not receive hazard communication 

71 
 

 

 

 

 

 

 

 

 

 

training until November 7, 2017. (T. 201; Ex. C-45 at Bates 191-92, 198-99; C-67 at Bates 459; 

Ex. C-56 at Bates 441; T. 423-24). 

Midvale did not develop a list of hazardous chemicals that are present in Midvale’s 

workplace as its HCP specified and as subparagraph (e)(1)(i) of the HCS requires. (T. 416, 419). 

Consequently, the training and information provided to the employees in March 2016 did not 

include information regarding “the location and availability of ... the required list(s) of hazardous 

chemicals” that subparagraph (h)(2)(iii) of the HCS requires to be provided to employees. 

One of the hazardous chemicals in use at Midvale is an ink named “SF Midvale Pizza 75 

Red-CCNB” that contains the hazardous chemical propylene glycol and that is manufactured and 

supplied to Midvale by J.M. Fry Company. (See safety data sheet, Ex. C-48 at 24-28). The ink 

came from the manufacturer in an appropriately labeled 55-gallon drum. Midvale employees 

dispensed the ink from the drum into unlabeled five-gallon plastic buckets and would then place 

those buckets containing the ink at various spots in the plant for eventual dispensing into the 

Zerand machines. (T. 425-27; Ex. C-45 at Bates 203; Ex. C-56 at Bates 441). 

Three Grouped HCS Violations Proven 

The HCS applies because Midvale employees are exposed to the following hazardous 

chemicals in performing their jobs at Midvale’s plant: acetone, denatured alcohol, and the 

propylene glycol contained in the ink named “SF Midvale Pizza 75 Red-CCNB.” (Exs. C-48, C56 at Bates 441, C-67 at Bates 454 & 459). 

Item 6a. Even though Midvale developed an HCP in 2016 as required by subparagraph 

(e)(1) of the HCS, the evidence established that it failed to fully “implement” and “maintain” that 

program as subparagraph (e)(1) also requires (and as citation item 6a alleges). Midvale never 

developed the “list of hazardous chemicals known to be present” in the workplace that 

subparagraph (e)(1)(i) requires. And while Midvale provided the training that subparagraph (e)(1) 

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requires when it developed the HCP in early 2016, Midvale did not thereafter provide required 

training to any employees who were hired after that training was provided until November 7, 2017. 

Midvale had actual knowledge of the violative condition in that Midvale’s president was the 

Program Administrator and was responsible for managing the HCP and maintaining all records 

“including reviewing and updating [the HCP] as necessary and facilitate training.” (Ex. R-40 at 

Bates 298). The alleged violation of subparagraph (e)(1) is proven. 

Item 6b. As noted in the preceding paragraph, Midvale did not train newly hired employees 

that subparagraph (h)(1) requires to be trained before the employee began working in areas where 

hazardous chemicals were present. Midvale had actual knowledge of the violative condition 

because Midvale had designated its president to be the individual responsible for ensuring that 

required training was carried out. The alleged violation of subparagraph (h)(1) is proven. 

Item 6c. The five-gallon plastic pails into which employees dispensed the ink containing 

the hazardous chemical propylene glycol and which employees set out in various locations in the 

plant for eventual dispensing into the three Zerand machines were not labeled as required by 

subparagraph (f)(6), and thus Midvale did not comply with the cited standard. Midvale employees 

who handled or worked in the vicinity of the unlabeled buckets were exposed to the violative 

condition. Midvale’s plant manager, Mr. Northwood, had actual knowledge of the violative 

condition and his knowledge is imputable to Midvale. (T. 424). The alleged violation of 

subparagraph (f)(6) is proven. 

Classifications and Penalty for Grouped HCS Violations 

Each of the three violations is properly classified as repeated. As described above, Midvale 

violated the same standards arising out of violations identified by inspection number 1081074, 

which became a final order on January 28, 2016. (T. 460; Exs. C-73 and C-77). This prima facie 

showing of substantial similarity for each of the three violations is not rebutted by evidence that 

73 
 

 

 

 

 

 

 

 

the prior violations involved disparate conditions and hazards and establishes the three violations 

as repeated. Potlatch Corp., 7 BNA OSHC at 1063. 

The maximum penalty for a repeat violation in connection with the inspection here is 

$129,336. 29 C.F.R. § 1903.15(d)(2) (2018). In addition to classifying the violations as 

“repeated,” the Secretary regarded each violation to be “serious” in nature for purposes of 

formulating a single proposed gravity-based penalty. (Ex. C-30 at Bates 138; T. 400-01). 

The undersigned concurs with the Secretary’s determination to group the three HCS 

violations and assess a single penalty for all. (T. 433). See Miniature Nut and Screw Corp., 17 

BNA OSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items involving 

violations of separate components of a hearing conservation program). The undersigned concurs 

further in the Secretary’s assessment that the gravity of the violations of subparagraphs (e)(1) and 

(h)(1) was “moderate” and the gravity of the violation of subparagraph (f)(6) was “low.” (Ex. C45 at Bates 187; Ex. C-15 at Bates 93; T. 429-33). In view of the interrelatedness of the “low” 

gravity violation to the two “moderate” gravity violations, the undersigned concurs in the 

Secretary’s proposed gravity-based penalty for the three grouped violations at $9,239. The 

undersigned concurs in doubling that sum to account for the repeated nature of the violations and 

concurs further in reducing that resulting sum by 60% to account for Midvale’s small size, which 

includes consideration of Midvale’s financial wherewithal. The undersigned does not concur in 

increasing that resulting sum by 10% to account for history of the violations, because the doubling 

of the gravity-based penalty to account for its repeated nature sufficiently addresses this statutory 

factor. The undersigned concurs with the Secretary’s assessment that no penalty reduction is 

appropriate for the “good faith” factor. Accordingly, a penalty of $7,391 will be assessed for the 

three grouped violations of the HCS. 

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G. Design Safety Standards for Electrical Systems– 

§§ 1910.305(b)(1)(ii), 1910.303(f)(2) & 1910.304(f)(1)(viii) 

(Serious Citation 1, Items 1a, 1b, & 1c) 

In serious Citation 1, the Secretary alleges three violations, grouped for penalty purposes, 

of the design safety standards for electrical equipment, codified at 29 C.F.R. § 1910.302—.308. 

All three violations relate to alleged deficiencies in an electrical panelboard that is housed a 

doorless metal cabinet that is in plain view mounted on the east wall of the plant’s “in-process” 

room. (T. 47; Ex. C-6 at Bates 70). Employees work in this room to operate the “window box” 

machine, a shredder, a shrink-wrap machine, and a conveyor. (T. 47-48). Employees also pass 

through this room when moving between the room where the Zerand machines are located (the 

printing and die cutting department) and the room where most of the gluers are located (the 

finishing department). (T. 47-48). The metal cabinet is shown in the photograph at Exhibit C-7, 

which the CO took during his inspection. The panelboard has seven circuit breaker switches, five 

of which are blue-colored 15-amp switches and two of which are orange-colored 20-amp switches. 

One of the 15-amp switches controls electricity to the overhead fluorescent lighting in the room, 

and employees operate that switch daily to switch the room’s lights on and off. (T. 48-49). 

Grouped Items 1a, 1b, and 1c of the citation allege respectively violations of 

§§ 1910.305(b)(1)(ii), 1910.303(f)(2) & 1910.304(f)(1)(viii). 

Item 1a -- § 1910.305(b)(1)(ii) 

Section 1910.305(b)(1)(ii) provides: “Unused openings in cabinets, boxes, and fittings 

shall be effectively closed.” Item 1a of Citation 1 alleges Midvale violated this standard on 

October 18, 2017, “when employees turned fluorescent lights on or off by cycling circuit breakers 

located in an energized electrical panel with an opening.” 

There was an opening in between two of the 15-amp circuit breakers. The opening was 

about four inches wide and two inches high, which are the dimensions of a normal circuit breaker. 

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(T. 49; Ex. C-6 at Bates 69; Ex. C-7). The opening itself was about 64 inches above floor level. 

(Ex. C-6 at Bates 69). Employees were exposed to the live electrical supply into the cabinet when 

operating the circuit breakers, and they could sustain burns in an electrical incident (i.e., arc flash) 

or shock from negligent or inadvertent contact with live parts inside the cabinet. (T. 51; Ex. C-6 

at Bates 69). 

The cited standard applies to the cabinet depicted in the photograph in Exhibit C-7. The 

opening in the cabinet between two blue switches depicted in that photograph is violative of the 

standard. Employees were exposed to the violative condition when operating switches on the 

doorless cabinet, one of which was switched on and off at least once daily because it controlled 

the overhead florescent lighting in the room, which was essential to providing adequate lighting. 

(Ex. C-6 at Bates 69-70; T. 60). Two of Midvale’s managers, Northwood and Dellaperuto, 

regularly operated the switch that controlled the overhead fluorescent lights. (T. 48-49; Ex. C-6 

at Bates 69-70). It would have been impossible for those managers not to have seen the opening 

in the cabinet when operating the circuit breaker that controlled the lights, and so both managers 

had actual knowledge of the violative condition. Midvale violated § 1910.305(b)(1)(ii) as alleged 

in Item 1a. 

The violation is appropriately classified as serious. A violation is “serious” if there was a 

substantial probability that death or serious physical harm could result from the violative condition. 

29 U.S.C. § 666(k); Consol. Freightways Corp., 15 BNA OSHC 1317, 1324 (No. 86–351, 1991). 

“This does not mean that the occurrence of an accident must be a substantially probable result of 

the violative condition but, rather, that a serious injury is the likely result if an accident does occur.” 

Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31 (No. 97-0469, 2003) (consolidated) 

(citation omitted). 

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The violative condition here was “serious” because an employee could suffer electrical 

burns in the event of an electrical incident. (T. 51). Also, the negligent or inadvertent insertion of 

fingers or a conductive instrument into the opening could result in electrical shock. (Ex. C-6 at 

Bates 69). 

Item 1b -- § 1910.303(f)(2) 

Section 1910.303(f)(2) provides: “Each service, feeder, and branch circuit, at its 

disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless 

located and arranged so the purpose is evident.” Item 1b of Citation 1 alleges that the panelboard 

was violative of this standard because “employees operated equipment that was protected by 

circuit breakers that were not marked to indicate their purpose.” 

The circuit breakers control electricity to electrical outlets and the florescent lighting in the 

in-process room. (T. 59). But none of the seven circuit breakers bore any markings to indicate 

which electrical outlet, etc. the circuit breaker powered. (Ex. C-10; Ex. C-6 at Bates 75; T. 57). 

Moreover, it was not self-evident from the location or arrangement of the circuit breakers what the 

purpose of any of them was. (Ex. C-6 at Bates 75; Ex. C-10). 

The cited standard applies to the circuit breakers, in that each constitutes an “overcurrent 

device” as that term is defined in § 1910.399. The circuit breakers were violative of the cited 

standard because they were neither marked to indicate their purpose, nor were they located or 

arranged in such a manner that their purpose was evident. Employees had access to the violative 

condition in that the circuit breakers supplied electricity to electrical outlets and the lighting 

fixtures in the room where employees regularly operated equipment that received electricity 

through the cabinet that housed the circuit breakers. The actual knowledge of the violative 

condition by Midvale managers (Northwood and Dellaperuto) is imputed to Midvale. Midvale 

violated § 1910.303(f)(2) as alleged in Item 1b. 

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The violation is properly characterized as serious. If some incident occurred that required 

turning off a circuit breaker, there is a possibility that the incorrect circuit breaker could be shut 

off with potentially calamitous results depending on what that erroneous circuit breaker controlled. 

(T. 55; Ex. C-6 at Bates 75). 

Item 1c -- § 1910.304(f)(1)(viii) 

Section 1910.304(f)(1)(viii) provides: “Circuit breakers used as switches in 120-volt and 

277-volt, fluorescent lighting circuits shall be listed and marked ‘SWD.’” Item 1c of Citation 1 

alleges that the circuit breaker that controlled the room’s overhead florescent lighting was violative 

of this standard because it was not manufactured as an SWD circuit breaker in that it lacked the 

manufacturer’s embossed marking “SWD.” Such a marking signifies that the circuit breaker is 

designed and manufactured to be used for “switching duty,” which is to say that it is designed and 

manufactured to withstand frequent on/off cycles and is less likely to fail than non-SWD switches 

under frequent use. (Ex. C-6 at Bates 81; T. 59-61). 

The cited standard applies because a circuit breaker switch was used for switching duty to 

control the florescent lights in the in-process room. Midvale was non-compliant with the standard 

because the circuit breaker used to control the florescent lights in the room was a non-SWD circuit 

breaker and was not marked “SWD”. Employees were exposed to the violative condition because 

the non-SWD circuit breaker was used daily to switch the florescent lights in the room on and off. 

Northwood and Dellaperuto had actual knowledge of the violative condition in that both used the 

circuit breaker to switch the lights on and off, and their actual knowledge is imputed to Midvale. 

Midvale violated § 1910.304(f)(1)(viii) as alleged in Item 1c. 

The violation is properly characterized as serious. The failure of the non-SWD circuit 

breaker could result in it failing to trip as it is designed to do in an overcurrent situation and 

resulting in an electrical incident. (Ex. C-6 at Bates 76) 

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Penalty for Citation 1, Grouped Items 1a, 1b, & 1c 

The undersigned concurs with the Secretary’s determination to group the three violations 

involving deficiencies in the electrical cabinet in the in-process room. (T. 52-53). The undersigned 

concurs further in the Secretary’s assessment that the gravity of each of the violations is 

“moderate,” for a resulting gravity-based penalty of $9,239. (Ex. C-6; T. 51). The undersigned 

concurs further in reducing that figure by 60% to account for Midvale’s small size, which includes 

consideration of Midvale’s financial wherewithal, in increasing that figure by 10% to account for 

history of prior violations, and in allowing no reduction for good faith. Accordingly, the 

undersigned concurs in the Secretary’s proposed penalty $4,065 for the three grouped violations 

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

H. Design Safety Standards for Electrical Systems– 

§§ 1910.305(b)(2)(i) & 1910.305(g)(1)(iv)(A) 

(Repeat Citation 3, Items 5b and 5c) 

Items 5b and 5c of repeat Citation 3 allege violations of § 1910.305, which pertains to 

design safety standards for electrical equipment. 28 

Item 5b -- § 1910.305(b)(2)(i) 

Item 5b alleges two instances of a violation of § 1910.305(b)(2)(i) which requires in 

pertinent part that “junction boxes ... be provided with covers identified for the purpose.” Item 

5b alleges Midvale violated this standard in two instances. Instance 1 identifies “an uncovered 

conduit outlet body” on Gluer #2 that was 28 inches above floor level. Instance 2 similarly 

identifies an “uncovered conduit outlet body,” this one on Gluer #3 that was 26 inches above floor 

level. 

28 The Secretary had originally alleged in Item 5a of Citation 3 a repeat violation 

§ 1910.303(b)(2), but the Secretary withdrew that citation item in his post-hearing brief. (Sec’y 

Br. 56). Item 5a of Citation 3 will therefore be vacated. 

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The open conduit outlet body on Gluer #2 is accurately depicted in the photograph at 

Exhibit C-44. That photograph shows the cover of the metallic conduit outlet body opened, with 

one wire with red-colored insulation and a second wire with black-colored insulation protruding 

out of the uncovered conduit outlet body. There is a wire nut on each wire, each of which also 

protrudes. (T. 246). 

The uncovered conduit outlet body on Gluer #3 is accurately reflected in a video exhibit 

(Ex. C-23, at the 2'24"mark), which depicts an exposed wire with red-colored insulation slightly 

protruding from the conduit outlet body that is lacking a cover. (T. 243-44). 

The CO took both the photograph and the video during his inspection. Both conduit outlet 

bodies are components of energized 120-volt circuits and are attached to the frames of the 

respective gluers along aisles in the plant that are about 40 inches wide and that employees navigate 

regularly in performing their ordinary duties. (T. 195, 243-44; Ex. C-23; Ex. C-41 at Bates 178). 

The two outlet bodies are a type of junction box and thus the cited standard applies and 

requires that they be covered. The photographic and video evidence establishes non-compliance 

with the standard, and their location along frequently traveled aisles or paths establishes employee 

access to the violative conditions. Plant manager Northwood told the CO that the outlet bodies 

had likely been uncovered for more than six months at the time of the inspection. The uncovered 

conduit outlet bodies were in conspicuous locations in plain view situated on aisles that Midvale 

supervisors navigated daily. Those supervisors had either actual or constructive knowledge of the 

violative conditions that is imputable to Midvale. The great weight of the evidence establishes 

that Midvale violated the cited standard in the manner described in the two instances alleged in 

Item 5b of Citation 3. 

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Item 5b is properly classified as a repeat violation. Midvale had violated the same standard 

in connection with citations issued following inspection numbers 954509 and 1066769, and those 

prior violations became final orders respectively on February 20, 2014, and June 19, 2017. (Ex. 

C-71 at 1 & 11; T. 459; T. 11; Ex. C-1 at 20 & 24). This prima facie showing of substantial 

similarity is not rebutted by evidence that the prior violations involved disparate conditions and 

hazards. Potlatch Corp., 7 BNA OSHC at 1063. The violation identified in Item 5b is properly 

classified as repeated. 

Item 5c -- § 1910.305(g)(1)(iv)(A) 

Item 5c alleges a violation of § 1910.305(g)(1)(iv)(A), which proscribes (subject to certain 

exceptions not applicable here) the use of flexible cords and cables as “a substitute for the fixed 

wiring of a structure.” Item 5c alleges that Midvale violated this standard by using a flexible cord 

to energize two motors that powered a belt-driven conveyor system associated with the “window 

box” machine in the plant’s in-process room. 

The extension cord identified in Item 5c is accurately depicted in the photograph at Exhibit 

C-43, which the CO took during the inspection. (T. 248-49). The female end of the extension 

cord is suspended in mid-air about eight inches above floor level underneath a curved roller 

conveyor and about one foot from a wood pallet on the floor. There appear to be about 15 to 20 

feet of unorganized excess cord lying on the floor beneath the curved roller conveyor and next to 

the wooden pallet. (Ex. C-41 at Bates 184). From the excess cord on the floor, the cord rose 

vertically for about twelve feet, was wound two times around a plastic pipe, was then draped over 

a metal pipe, and then dropped vertically down an I-beam where the male end was plugged into a 

receptacle outlet that was about five feet above floor level. (Ex. C-41 at Bates 184). The plant 

manager, John Northwood, configured this usage of the flexible cord about two years earlier when 

he personally installed the conveyor system. (T. 249; Ex. C-41 at Bates 185). Employees regularly 

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walked near the pallet and within a foot of the suspended female end and the excess cord lying on 

the floor underneath it while performing routine work activities. (T. 250). 

The cited standard applies and prohibits the use of the flexible cord to energize the two 

motors that powered the belt-driven conveyor that had been installed about two years earlier. 

Midvale’s use of the flexible cord as a substitute for fixed wiring for the conveyor belt system was 

violative of the cited standard. Employees worked in the in-process room where the violative 

condition was located and from time to time came within a foot of the violative condition. Midvale 

had actual knowledge of the violative condition because the plant manager had set it up when he 

installed the conveyor system two years before the inspection. Midvale violated the cited standard 

in the manner alleged in Item 5c of Citation 3. 

Item 5c of Citation 3 is properly classified as a repeat violation. Midvale had violated the 

same standard in connection with a citation issued following inspection number 994212, which 

became a final order on December 8, 2014. (Ex. C-20 at 10 & 13). Midvale violated the same 

standard a second time in connection with inspection 1066769, which became a final order on June 

19, 2017. (T. 251; T. 11; Ex. C-72 at 1-3; Ex. C-1 at 18 & 24). This prima facie showing of 

substantial similarity is not rebutted by evidence that the prior violations involved disparate 

conditions and hazards. Potlatch Corp., 7 BNA OSHC at 1063. The violation identified in Item 

5c is properly classified as repeated. 

Penalty for Grouped Violations of § 1910.305 

The maximum penalty for a repeat violation in connection with the citation here is 

$129,336. 29 C.F.R. § 1903.15(d)(2) (2018). In addition to classifying the violations as 

“repeated,” the Secretary regarded each violation to be “serious” in nature for purposes of 

formulating a single proposed gravity-based penalty. (Ex. C-41). 

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The undersigned concurs with the Secretary’s determination to group the three original 

citation items alleging violations the design safety standards for electrical equipment, one of which 

the Secretary has now withdrawn, and assessing a single penalty for all. See Miniature Nut and 

Screw Corp., 17 BNA OSHC 1557, 1559-60 (No. 93-2535, 1996) (combining penalties for items 

involving violations of separate components of a hearing conservation program). The undersigned 

concurs further in the Secretary’s assessment that the gravity of the established violations is “low” 

based on assessments that the severity of possible injury was “low”, and the probability of injury 

was “lesser” for both proven violations. (Ex. C-41). The undersigned therefore concurs in the 

Secretary’s proposed gravity-based penalty for each of the two established violations at $5,543. 

(Ex. C-41 at Bates 175 & 181). The undersigned concurs in applying a multiplier of five to that 

figure to account for the multiple prior violations of both cited standards and concurs further in 

reducing that resulting figure by 60% to $11,086 to account for Midvale’s small size, which 

includes consideration of Midvale’s financial wherewithal. The undersigned does not concur in 

increasing that resulting sum by 10% to account for Midvale’s history of violations, because the 

quintupling of the gravity-based penalty to account for its repeated nature sufficiently addresses 

this statutory factor. The undersigned concurs with the Secretary’s assessment that no penalty 

reduction is appropriate for the “good faith” factor. Considering that the Secretary withdrew one 

of the three grouped items originally alleged in Citation 3 and considering further that this 

withdrawn item involved a different alleged violative condition involving different equipment, this 

figure is reduced by one-third. Accordingly, a penalty of $7,391 will be assessed for the two 

grouped violations represented by Items 5b and 5c of Citation 3. 

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ORDER 

The foregoing decision constitutes findings of fact and conclusions of law in accordance 

with Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). Based upon the foregoing findings 

of fact and conclusions of law, it is ORDERED that: 

1. As to Serious Citation 1: 

a. Item 1a, alleging a Serious violation of 29 C.F.R. § 1910.305(b)(1)(ii), is AFFIRMED 

as a Serious violation. 

b. Item 1b, alleging a Serious violation of 29 C.F.R. § 1910.303(f)(2), is AFFIRMED as 

a Serious violation. 

c. Item 1c, alleging a Serious violation of 29 C.F.R. § 1910.304(f)(1)(viii), is AFFIRMED 

as a Serious violation. 

d. A penalty of $4,065 is ASSESSED for grouped Items 1a, 1b, and 1c. 

2. As to Willful Citation 2: 

a. As to Item 1a, alleging a Willful violation of 29 C.F.R. § 1910.147(c)(4)(i): 

i. Instance 1 (pertaining to Gluers #1, #2 & #5 [the “FZ Gluers”]), having not been 

proven, is VACATED. 

ii. Instance 2 (pertaining Gluers #3 & #4 [the “KH Gluers”]), having not been proven 

as to Gluer #4, and having been proven as to Gluer #3 but that proven violation 

being duplicative of the violation proven for Citation 2, Item 2, Instance 3, is 

VACATED. 

iii. Instance 3 (pertaining to the “Window Machine Model 5A”) is AFFIRMED as a 

Serious violation. 

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iv. Instance 4 (pertaining to the Zerand machines), having not been proven as to Zerand 

#1 and #3, and having been proven as to Zerand #2 but that violation being 

duplicative of the violations proven for Citation 3, Items 3a and 3b, is VACATED. 

b. Item 1b, alleging a Willful violation of 29 C.F.R. § 1910.147(c)(7)(i), is AFFIRMED 

as a Serious violation. 

c. A penalty of $6,881 is ASSESSED for grouped Items 1a and 1b of Citation 2. 

d. As to Item 2, alleging a Willful violation of § 1910.219(c)(2)(i): 

i. Instance 1 (pertaining to Gluer #1) and Instance 3 (pertaining to Gluer #3) are 

AFFIRMED as a Willful violation. 

ii. Instance 2 (pertaining to Gluer #2), Instance 4 (pertaining to Gluer #4), and Instance 

5 (pertaining to Gluer #5), having not been proven, are VACATED. 

e. A penalty of $30,000 is ASSESSED for Item 2 of Citation 2. 

3. As to Repeat Citation 3: 

a. Item 1, alleging a Repeat violation of 29 C.F.R. § 1910.133(a)(1), is AFFIRMED as a 

Repeat violation and a penalty of $7,391 is ASSESSED. 

b. Item 2, alleging a Repeat violation of 29 C.F.R. § 1910.178(l)(1)(i), having not been 

proven, is VACATED. 

c. Item 3a, alleging a Repeat violation of 29 C.F.R. § 1910.219(d)(1), is AFFIRMED as 

a Repeat violation. 

d. Item 3b, alleging a Repeat violation of 29 C.F.R. § 1910.219(e)(1)(i), is AFFIRMED 

as a Repeat violation. 

e. Item 3c, alleging a Repeat violation of 29 C.F.R. § 1910.219(f)(3), having been 

withdrawn by the Secretary, is VACATED. 

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f. A penalty of $7,391 is ASSESSED for grouped Items 3a and 3b of Citation 3. 

g. Item 4, alleging a Repeat violation of 29 C.F.R. § 1910.219(f)(1), is AFFIRMED as a 

Repeat violation and a penalty of $7,391 is ASSESSED. 

h. Item 5a, alleging a Repeat violation of 29 C.F.R. § 1910.303(b)(2), having been 

withdrawn by the Secretary, is VACATED. 

i. Item 5b, alleging a Repeat violation of 29 C.F.R. § 1910.305(b)(2)(i) is AFFIRMED 

as a Repeat violation. 

j. Item 5c, alleging a Repeat violation of 29 C.F.R. § 1910.305(g)(1)(iv)(A) is 

AFFIRMED as a Repeat violation. 

k. A penalty of $7,391 is ASSESSED for grouped Items 5b and 5c of Citation 3. 

l. Item 6a, alleging a Repeat violation of 29 C.F.R. § 1910.1200(e)(1), is AFFIRMED as 

a Repeat violation. 

m. Item 6b, alleging a Repeat violation of 29 C.F.R. § 1910.1200(h)(1), is AFFIRMED as 

a Repeat violation. 

n. Item 6c, alleging a Repeat violation of 29 C.F.R. § 1910.1200(f)(6), is AFFIRMED as 

a Repeat violation. 

o. A penalty of $7,391 is ASSESSED for grouped Items 6a, 6b, and 6c of Citation 3. 

/s/ William S. Coleman 

WILLIAM S. COLEMAN 

Administrative Law Judge 

Dated: September 20, 2021 

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