United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 18-1859 

FabArc Steel Supply, Inc.,

 Respondent.

Appearances:

 Christian P. Barber, Esq. 

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

 For Complainant 

Charity Parris, Environmental Health & Safety Director

FabArc Steel Supply, Inc., Oxford, Alabama

 For Respondent 

BEFORE: Administrative Law Judge Sharon D. Calhoun 

 DECISION AND ORDER

FabArc Steel Supply, Inc. (FabArc) is engaged in the business of manufacturing 

fabricated steel products for steel erection. On October 11, 2018, Occupational Safety and 

Health Administration (OSHA) Compliance Safety and Health Officer (CSHO) Lynne Bollinger 

conducted an inspection of FabArc’s facility located at 111 Meadow Lane, Oxford, Alabama. As 

a result of OSHA’s inspection, the Secretary issued a Citation and Notification of Penalty 

(Citation) to FabArc on November 5, 2018, alleging three serious violations of the Occupational 

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

Item 1 alleges a serious violation of 29 C.F.R. § 1910.132(f)(1)(iv) for not training 

employees regarding fall protection personal protective equipment limitations. The Secretary 

proposes a penalty of $7,853 for this item.

Item 2 alleges a serious violation of 29 C.F.R. § 1910.147(c)(4)(i) for not utilizing 

lockout/tagout procedures to control potentially hazardous energy when removing the motor for 

the East Blastec. The Secretary proposes a penalty of $9,523 for this item.
2 

Item 3 alleges a serious violation of 29 C.F.R. § 1910.178(p)(1) for not taking a forklift 

out of service until it repaired its malfunctioning horn and an oil leak. The Secretary proposes a 

penalty of $ 6,282 for this item.

 JURISDICTION AND COVERAGE

FabArc timely contested the Citation. Thereafter, this case was designated for Simplified 

Proceedings under Subpart M, § 2200.203(a), of the Commission Rules of Procedure.1

 The 

Court held a hearing in this matter on April 24, 2019, in Anniston, Alabama. Both parties filed 

post-hearing briefs on June 3, 2019. The parties stipulated jurisdiction of this action is conferred 

upon the Commission pursuant to §10(c) of the Act (Exh. J-1, ¶1). FabArc also admits that at all 

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

commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 13-14; Exh. J-1, ¶2). 

Based on the stipulations and the record evidence, the Court finds the Commission has 

jurisdiction over this proceeding under § 10(c) of the Act and FabArc is a covered employer 

under § 3(5) of the Act. 

For the reasons that follow, the Court VACATES Item 1, and AFFIRMS Items 2 and 3 

of the Citation and assesses penalties in the amount of $8,500 for Item 2 and $5,600 for Item 3. 

 BACKGROUND

FabArc engages in the business of manufacturing fabricated steel products for steel 

erection (Tr. 58). It employs an average of 300 employees at its Oxford, Alabama, facility (Tr.

58; Exh. J-1 ¶4). OSHA initiated an inspection of the facility following FabArc’s report to 

OSHA on October 4, 2018, of an accident at the facility resulting in an employee’s finger being 

amputated. The employee was in the process of loading onto a golf cart the motor of the 

Blastec2 machine at issue in this proceeding when the motor flipped while the employee’s hands 

were inside of the strap holding the machine (Tr. 26, 58-59). CSHO Bollinger3 initiated an 

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

2019.

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

machine. 

3 CSHO Bollinger graduated from Georgia Tech with a bachelor’s degree in Industrial Engineering. She worked 2 1⁄2 

years with Union Carbide as an Associate Industrial Engineer, and for 17 years as an Associate Engineer, eventually 

becoming a Senior Engineer. After Union Carbide, CSHO Bollinger was employed as a Manufacturing Safety 

Engineer with Communications Technology Corporation for 1 1⁄2 to 2 years when she left to work for OSHA. CSHO 

Bollinger will have been employed with OSHA as a Safety Engineer for 10 years at the end of 2019. She is 
3 

inspection of the facility on October 11, 2018, by meeting with a representative of the company 

to explain why she was there. She conducted an opening conference, inspected the location of 

the accident, interviewed employees, inspected the fall protection equipment, and reviewed the 

lockout/tagout procedures and the forklift inspection records (Tr. 45, 59-60, 75, 80, 85; Exh. J-1 

¶6). CSHO Bollinger found no violations relating to the accident. However, she found alleged 

violations of the fall protection, lockout/tagout, and powered industrial trucks standards.4

 Those 

alleged violations are at issue here. 

The evidence regarding the violations found by CSHO Bollinger reveals that at 4 a.m. on 

the day of the accident, maintenance employee #1, who described himself as leadman, received a 

note left by the night shift that an electric motor in the baghouse5 was no longer working (Tr. 26-

27, 28). Because the motor was not working it caused problems with the shop blaster. The 

motor was removed on the day of the accident and was subsequently replaced with a new one 

(Tr. 59-61; Exhs. J-2 - J-6). The malfunctioning motor was located at the top of the Blastec 

machine, at a height of approximately 18 feet (Tr. 29, 62, 64; Exhs. J-2, J-4; J-6). In order to 

access the motor, employees used a manlift (Tr. 30, 31; Exhs. J-1 ¶15, J-7). 

Removing the motor was maintenance employee #1’s first assignment for the day. He 

did not communicate this assignment to his supervisor before starting it because his supervisor 

does not arrive until 7 a.m. (Tr. 28, 43). Maintenance employee #1 testified maintenance get to 

the facility early to get the shop ready for the day shift (Tr. 28, 48). Therefore, he and another 

employee (maintenance employee #2) initiated the assignment by putting on their harnesses and 

taking the manlift to the top of the Blastec machine. Both employees were tied off to the basket 

of the manlift as they rode up (Tr. 31, 35, 43; Exh. J-1 ¶12). Maintenance employee #2 remained 

tied off in the manlift and was there as a “buddy” to observe in case anything went wrong (Tr. 

38, 44). Maintenance employee #1 testified the manlift was situated to the left of the baghouse, 

without a gap between it and the baghouse and was not moved until he came off the top of the 

responsible for inspecting worksites and preparing reports (Tr. 55-57). 4 OSHA’s Regional Emphasis Program requiring forklifts in the facility to be included in an inspection was the basis 

for expanding the inspection to include the forklift at issue (Tr. 74-75; Exh. J-18). 5 Maintenance employee #1 described the baghouse as “a blaster, steel shop blaster. Steel runs through it and it gets 

all of the scale off of it, but the baghouse is a dust collector. It’s got filters in it with a electric motor, fan on top, it 

pulls the dust out of the machine into the filters, substance caught in barrels.” (Tr. 27) The baghouse is attached to 

the blaster by a big pipe, but stands 3 to 8 feet away from the blaster (Tr. 27). 
4 

baghouse6 (Tr. 39, 40, 45). 

Once on top of the baghouse, maintenance employee #1 detached his fall protection from 

the manlift, exited and connected his lanyard to an eyebolt located on the top of the baghouse at 

foot level (Tr. 33; Exhs. J-1 ¶13. J-12). His usual practice was to tie off to the eyebolt because 

there was no other place to tie off to (Tr. 35). Although maintenance employee #1 had been on 

top of other baghouses in the facility to work on motors, this was the first time he had been on 

top of the instant Blastec machine in the seven years since it had been installed7 (Tr. 34, 51). 

Maintenance employee #1 testified he had received fall protection training and had previously 

seen FabArc’s lockout/tagout procedures (Tr. 40, 49; Exh. J-16). 

While on top of the baghouse, maintenance employee #1 determined the motor had 

power, so he turned off the power at the isolation switch he located to the left of the blaster, 

which he testified killed all the power to the motor (Tr. 28-29, 31, 41; Exh J-10). The circuit 

feeding the motor was rated at 480 volts (Tr. 36, 69). After disconnecting the power, he verified 

the circuit was no longer energized by using a voltmeter (Tr. 36, 47). According to maintenance 

employee #1 the circuit could not be re-energized because he was the only one who could get to 

the isolation switch (Tr. 36, 46). He could not lock out the machine at the main disconnect 

because its locking mechanism was broken (Tr. 29, 41). A replacement for the locking 

mechanism had been ordered but had not yet arrived (Tr. 42). Once the power was turned off at 

the isolation switch, unhooked the wires, put straps around the motor and pulled it out of the top 

with an overhead crane (Tr. 29, 37, 38-39). The crane took the motor to the center of the bay 

and then south to a golf cart where it was to be lowered (Tr. 39). 

CSHO Bollinger recommended the issuance of a citation for a violation of 29 C.F.R. § 

1910.132(f)(1)(iv) because maintenance employee #1 was exposed to a fall hazard greater than 

four foot and he and the safety director did not demonstrate an understanding of the fall 

protection limitations when they told her anchoring the lanyard at feet level was safe (Tr. 65, 83). 

FabArc provided no fall protection training records during the inspection (Tr. 65). 

CSHO Bollinger recommended the issuance of a citation for a violation of 29 C.F.R. § 

6 Maintenance employee #1 testified he did not leave the top of the baghouse until after the employee whose finger 

was caught in the strap and amputated had left the facility (Tr. 45).

7 This machine is one of two baghouses in the East Shop. The facility also has one baghouse inside the West Shop 

and three on the outside of the West Shop (Tr. 33, 34).
5 

1910.147(c)(4)(i) because, although FabArc had lockout/tagout procedures, they were not 

followed on the day of the accident in that employees could not attach a lock to the disconnect 

which was broken (Tr. 68-69; Exhs. J-10, J-16). CSHO Bollinger further testified that no locks 

were on the isolation switch to ensure it was not reenergized. Since two employees were 

working on the assignment, two locks should have been placed on the isolation switch to prevent 

unexpected energization (Tr. 70-72; Exh. J-10).

CSHO Bollinger also recommended issuance of a citation for violation of 29 C.F.R. § 

1910.178(p)(1) based on her review of the inspection records for the forklift which revealed it 

had been used since February without a working horn, and had been used at times when it was 

leaking or having problems with the brakes (Tr. 75-76). The forklift was equipped with a yellow 

strobe light which CSHO Bollinger testified was a warning device on forklifts equipped with 

them (Tr. 86-87; Exh. J-1 ¶7). 

Based on CSHO Bollinger’s inspection of the facility, OSHA issued the Citation at issue 

in this case to FabArc on November 5, 2018. 

 STIPULATIONS

The parties submitted the following stipulations as a joint exhibit:

1. Jurisdiction of this action is conferred upon the Commission pursuant to 

Section 10 (c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 

651 et. seq., hereinafter the Act, 19 U.S.C. § 659(c). 

2. At all times relevant to this action, Respondent was an employer engaged in a 

business affecting commerce within the meaning of Section 3(5) of the Act, 

29 U.S.C. § 651(5). 

3. On the date of the alleged violations, Respondent had a place of employment 

at 111 Meadow Lane, Oxford, Alabama (the worksite), where it engaged in 

the business of manufacturing fabricated steel products. 

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

facility.

5. On October 4, 2018, an accident occurred at the worksite. On that date, 

Charity Parris, Respondent’s Enforcement, Health & Safety Director, reported 

the accident to the Occupational Safety and Health Administration (OSHA).
6 

6. OSHA Compliance Safety and Health Officer Lynn Bollinger, an authorized 

representative of Complainant, conducted an opening conference on October 

11, 2018, and conducted the inspection of the worksite, Inspection No. 

1352763. 

7. As a result of the inspection, Complainant issued to Respondent a Citation and 

Notification of Penalty pursuant to Section 9(a) of the Act, 29 U.S.C. § 

658(a).

8. The Citation and Notification of Penalty identifies and describes the specific 

violations alleged, the corresponding abatement dates, and the penalties 

proposed. 

9. On or about November 15, 2018, by a document of the same date, 

Complainant received notification, pursuant to Section 10(c) of the Act, 29 

U.S.C. § 659(c), of Respondent’s intention to contest the aforesaid Citation 

and Notification of Penalty. 

10. On October 4, 2018, in the facility’s East Shop Detail Bay, two maintenance 

employees, [maintenance employee #1] and [maintenance employee #2], were 

directed to troubleshoot the dust-collector vacuum system for a Blastec shot 

blasting machine. 

11. The employees used a boom lift to reach the top of the dust collector, where 

the motor controlling the vacuum system was located.

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

lift.

13. Once at the top of the dust collector, in order to remove the motor 

[maintenance employee #1] exited the boom lift and stood on top of the dust 

collector, unclipping his harness from the boom lift and clipping it to a lifting 

eye on the corner of the dust collector at foot level. There was no other 

location to which he could attach, other than lifting eyes at foot level.

14. At some point before October 4, 2018, the main disconnect handle for the 

Blastec machine broke and a lock could not be applied to it. 

15. Before performing work to troubleshoot and remove the dust-collector 

vacuum system’s motor on October 4, the employees turned off a power 

isolating “light switch” that was located at least 20 feet above the floor, 

several feet from the motor, and accessible only to persons on top of the dust 

collector near the motor. No lock was used, contrary to Respondent’s 

machine-specific lockout procedures. 
7 

16. Inspection records for the forklift truck used in the area of the dust collector 

documented that the forklift had been operated without a working horn for at 

least four months, and had been leaking fluid for two weeks. 

17. The forklift’s backup alarm was operational, as was a strobe light that 

activated when the machine was put into gear. 

(Exh. J-1.) 

THE CITATION

The Secretary 's Burden of Proof 

To establish a violation, “the Secretary must show by a preponderance of the evidence that: (1) 

the cited standard applies; (2) there was a failure to comply with the cited standard; (3) employees had 

access to the violative condition; and (4) the cited employer either knew or could have known of the 

condition with the exercise of reasonable diligence.” Astra Pharma. Prods., No. 78-6247, 1981 WL 

18810, at *4 (OSHRC July 30, 1981), aff’d in relevant part, 681 F.2d 169 (1st Cir. 1982).

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

Alleged Violation Description

Item 1 alleges: 

On or about October 11, 2018- East Shop Detail Bay, employees were exposed to 

fall hazards when not being aware that anchoring a harness/lanyard to an eyebolt 

located at foot level would permit a free fall greater than six feet. 

Section 1910.132(f)(1)(iv) 

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

Training. (1) The employer shall provide training to each employee who is 

required by this section to use PPE. Each such employee shall be trained to know 

at least the following:

. . . 

(iv) The limitations of the PPE[.] 

(1) Applicability of the Cited Standard 

Subpart I of the Occupational Safety and Health Standards in Part 1910 addresses personal 

protective equipment. On January 17, 2017, a new standard for fall protection in general 

industry became effective. That standard, found at 29 C.F.R. § 1910.140 sets forth the 

requirements for fall protection and provides, regarding the scope and application of the 

standard, “This section establishes performance, care, and use criteria for all personal fall 
8 

protection systems. The employer must ensure that each personal fall protection system used to 

comply with this part must meet the requirements of this section.” 29 C.F.R. § 1910.140(a). The 

standard at § 1910.140(d)(2)(ii) further sets forth requirements for rigging personal fall arrest 

systems as follows:

Personal fall arrest systems are rigged in such a manner that the employee cannot 

free fall more than 6 feet (1.8m) or contact a lower level. A free fall may be more 

than 6 feet (1.8 m) provided the employer can demonstrate the manufacturer 

designed the system to allow a free fall of more than 6 feet and tested the system 

to ensure a maximum arresting force of 1,800 pounds (8kN) is not exceeded. 

The Secretary did not cite the new fall protection standard for the alleged violations here 

where maintenance employee #1 secured his lanyard at foot level, exposing himself to a free fall 

of more than 6 feet. Instead, the Secretary alleges a violation of the standard found at §1910.132

(specifically §1910.132(f)(1)(iv)) which, prior to the effective date of the new standard had long 

been considered broad enough to apply to fall hazards. Fall protection such as a safety harness 

was considered a form of personal protective equipment. Bethlehem Steel Corp., 10 BNA OSHC 

1470, 1472 (No. 79-310, 1982); Hackney Inc., 16 BNA OSHC 1806, 1807-08 (No. 91-2409, 

1994); Cleveland Electric Illuminating Co., 16 BNA OSHC 2091, 2093 (No. 91-2198, 1994). 

The necessity of fall protection pursuant to § 1910.132, however, is premised on a hazard 

assessment by the employer that fall protection is necessary, as set forth in §1910.132(d): 

Hazard assessment and equipment selection. (1) The employer shall assess the 

workplace to determine if hazards are present, or are likely to be present which 

necessitate the use of personal protective equipment (PPE). If such hazards are 

present, or likely to be present, the employer shall: 

(i) Select, and have each affected employee use, the types of PPE that will 

protect the affected employee from the hazards identified in the hazard 

assessment;

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

(iii) Select PPE that properly fits each affected employee

. . . 

For the alleged violative conditions at issue, the standard found at § 1910.140(d)(2)(ii) is 

the more specific standard. The Secretary did not move to amend the Citation to allege this new 

fall protection standard. As the cited standard is more general and is premised on completion of 

a hazard assessment, it is not applicable to the alleged violative conditions. 

Item 1, alleging a violation of § 1910.132(f)(1)(iv) is vacated. 
9 

Item 2: Alleged Serious Violation of § 1910.147(c)(4)(i)

Alleged Violation Description

Item 2 alleges: 

On or about October 11, 2018- East Shop Detail Bay, the lockout/tagout 

procedure for the East Blastec was not used when removing the non-functioning 

motor from the top of the equipment. 

Section 1910.147(c)(4)(i)

Section 1910.147(c)(4)(i) provides: 

Energy control procedure. (i) Procedures shall be developed, documented and 

utilized for the control of potentially hazardous energy when employees are 

engaged in the activities covered by this section. 

NOTE: Exception: The employer need not document the required procedure for a particular 

machine or equipment, when all of the following elements exists: (1) The machine or equipment 

has no potential for stored or residual energy or reaccumulation of stored energy after shut down 

which could endanger employees; (2) the machine or equipment has a single energy source which 

can be readily identified and isolated; (3) the isolation and locking out of that energy source will 

completely deenergize and deactivate the machine or equipment; (4) the machine or equipment is 

isolated from that energy source and locked out during servicing or maintenance; (5) a single 

lockout device will achieve a locked-out condition; (6) the lockout device is under the exclusive 

control of the authorized employee performing the servicing or maintenance; (7) the servicing or 

maintenance does not create hazards for other employees; and (8) the employer, in utilizing this 

exception, has had no accidents involving the unexpected activation or reenergization of the 

machine or equipment during servicing or maintenance. 

(1) Applicability of the Cited Standard 

Section 1910.147(a)(i) of the LOTO standard provides the “standard covers the servicing 

and maintenance of machines and equipment in which the unexpected energization or start up of 

the machines or equipment, or release of stored energy could cause injury to employees.” 

The Blastec machine housing the motor was energized with 480 volts of electricity. Its 

energy source could be controlled at the main disconnect and at the isolation switch. On the day 

of the accident, the two maintenance employees were tasked with removing the motor which was 

not functioning. To do so they were required to de-energize the Blastec machine. To prevent the 

unexpected energization or start up of the Blastec, the employees were to tag out the machine 

consistent with FabArc’s lockout/tagout procedures for the control of hazardous energy when 

employees serviced the Blastec (Exh. J-16). On the day of the accident the two maintenance 

employees were on the top of the Blastec, each had access to the isolation switch which was not 

locked and tagged out while maintenance employee #1 disconnected the wiring to the motor. 
10

Although it did not happen, employee #2 could have turned on the isolation switch thereby reenergizing the Blastec. The main disconnect, which also was not locked and tagged out, but was 

placed in the off position, could have been turned to the on position. Unexpected energization or 

start up of the machine could have occurred with devasting consequences while maintenance 

employee #1 was in the process of removing the wiring connecting the motor to the Blastec 

because the energy source was not locked and tagged out as required by the standard. 

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

issue in this matter. The Court is not persuaded by and places no weight on this argument. No 

evidence or testimony at the hearing was elicited to support this claim. Likewise, despite 

FabArc’s claim the Blastec had a single energy source, it did not establish any of the other 

requirements necessary to establish the exception to the standard. 

Applicability of § 1910.147(c)(4)(i) is established. 

(2) Compliance with the Terms of the Cited Standard 

FabArc had in place lockout/tagout procedures for the control of hazardous energy for the 

Blastec, but it failed to utilize those procedures when the employees were engaged in the 

servicing and maintenance of the machine. The main disconnect was not locked and tagged out 

because the device for securing the locks was broken (Tr. 41). Instead, the employees placed the 

main disconnect in the off position and disconnected the power at the isolation switch, without 

attaching lock out devices to either (Tr. 46, 71-72; Exh. J-22). CSHO Bollinger testified that 

because two employees could access the isolation switch, two lockout devices should have 

placed on the isolation switch (Tr. 71-72). As the energy source to the Blastec machine was not 

locked and tagged out, violation of the terms of § 1910.147(c)(4)(i) is established. 

(3) Access to the Violative Condition 

Maintenance employees #1 and #2 worked at the top of the Blastec machine engaged in 

the process of the removing the motor from the machine. The two employees accessed the top of 

the machine by a manlift. Maintenance employee #1 exited the manlift, disconnected the power 

to the machine from the isolation switch before removing wiring connecting the motor to the 

machine, and placed straps on the motor so it could be removed from the machine with an 

overhead crane (Tr. 39). Employee #2 observed from the manlift. No lockout/tagout procedures 

were utilized. Both employees had access to unexpected energization of the machine. The 
11

Secretary has established access to the violative conditions. 

 (4) Knowledge of the Violative Conditions 

To prove knowledge, the Secretary can show that a supervisor had either actual or 

constructive knowledge of the violation and such knowledge is generally imputed to the 

employer. An employee who has been delegated authority over another employee, even if only 

temporarily, is considered to be a supervisor for purposes of imputing knowledge to an employer. 

American Engineering & Development Corp., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012); 

Diamond Installations, Inc., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006); Tampa 

Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). The employee's job 

function rather than title is determinative. Therefore, the Commission has imputed the 

knowledge of a “working leader,” because although not a full-time supervisor he was a 

supervisor at the time of the alleged violation. 

FabArc contends the Secretary cannot establish its management knew the maintenance 

employees were in the process of removing the malfunctioning motor from the Blastec since the 

maintenance supervisor was not onsite at the time of the alleged violation. The Court disagrees. 

Maintenance employee #1 testified he was the leadman when his supervisor was not present (Tr. 

28). As such, he had authority over the employee in the manlift and therefor is a supervisor for 

purposes of imputing knowledge to FabArc. 

Where the Secretary shows that a supervisor had either actual or constructive knowledge 

of the violation, such knowledge is generally imputed to the employer.” ComTran Crp., Inc. v. 

U. S. Dep’t of Labor, 722 F.3d 1304, 1307-08 (11th Cir. 2013). A supervisor’s knowledge of a 

subordinate employee’s violative conduct may be imputed to the employer even when the 

supervisor himself is simultaneously involved in the same violative conduct. Quinlan v. U. S. 

Dept. of Labor, 812 F.3d 832 (11th Cir. 2016). Knowledge is imputed through leadman 

maintenance employee #1 who testified the place for securing locks on the main disconnect was 

broken. Although he disconnected the power at the isolation switch, he did not place a lock on 

the device. He also was aware employee #2 was in proximity of the isolation switch and also 

had not placed a lock on it. 

The evidence also establishes knowledge through FabArc designated management. The 

Safety Director advised CSHO Bollinger that the maintenance office knew of the broken handle 
12

on the main disconnect and had ordered a replacement part for it. Nonetheless, employees 

worked on equipment without applying locks (Exh. J-23). 

 Knowledge of the violative condition is established. The Secretary has proven all 

elements of his prima facie case. 

Item 3: Alleged Serious Violation of § 1910.178(p)(1)

Alleged Violation Description

Item 3 alleges: 

On or about October 11, 2018- East Shop Detail Bay, the forklift had been 

operated since February without a working horn and had been operated for two 

weeks with a leak that had not been evaluated. 

Section 1910.178(p)(1)

Section 1910.178(p)(1) provides: 

Operation of the truck. (1) If at any time a powered industrial truck is found to be 

in need of repair, defective, or in any way unsafe, the truck shall be taken out of 

service until it has been restored to safe operating condition. 

(1) Applicability of the Cited Standard 

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

provides: 

This section contains safety requirements relating to fire protection, design, 

maintenance, and use of fork trucks, tractors, platform lift trucks, motorized 

hand trucks, and other specialized industrial trucks powered by internal 

combustion engines[.] 

(emphasis added)

Forklifts were used in FabArc’s facility. CSHO Bollinger, pursuant to the Reginal 

Emphasis Program for powered industrial trucks which included forklifts, expanded her 

inspection to include a forklift that operated in the vicinity of the accident (Tr. 74-75; Exh. J-18). 

The Secretary has established applicability of § 1910.178(p)(1). 

(2) Compliance with the Terms of the Cited Standard 

Inspection records of the forklift show that its horn was not operational and had not been 

functional since February 2018. The forklift also had leaks which were not repaired until August 

2018. The forklift was operated during the time period it had these defects and was not taken out 
13

of service (Tr. 75; Exhs. J-17, J-23). FabArc does not dispute these conditions of the forklift. 

Maintenance supervisor Saccal advised CSHO Bollinger sometimes the forklift leaked because it 

was overfilled. Communication from FabArc’s safety director revealed the current leak was due 

to an issue with the side shifter, which though disabled, still caused problems (Exh. J-23). Parts 

for the horn had been ordered and the leak issues were resolved (Exh. J-23). Although FabArc 

argues a horn was not necessary because the forklift had a yellow strobe light for a warning 

device, the safety director had informed the automotive mechanic that a horn was critical (Tr. 

106; Exh. J-23; FabArc brief, p. 10). 

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

(3) Access to the Violative Condition 

The evidence adduced at the hearing establishes the forklift had operated since February 

2018 without a working horn and had operated with a leak until August 2018 in the vicinity 

where employees worked. OSHA’s violation worksheet shows three maintenance employees 

were exposed (Exhs. J-17, J-23). The Secretary has established access to the violative 

conditions. 

(4) Knowledge of the Violative Conditions 

FabArc’s maintenance supervisor Saccal completed the daily inspection reports for the 

forklift (Exhs. J-17; J-23). Knowledge of the violation is established. The Secretary has proven 

all elements of his prima facie case. 

Characterization of the Violations 

The Secretary characterized the violations of the standards found at §§ 1910.147(c)(4)(i)

and 1910.178(p)(1) as serious. A serious violation is established when there is “a substantial 

probability that death or serious physical harm could result [from a violative condition] . . . 

unless the employer did not, and could not with the exercise of reasonable diligence, know of the 

presence of the violation.” 29 U.S.C. § 666(k). 

By not locking and tagging out the Blastec machine before working on it as required by § 

1910.147(c)(4)(i), maintenance employee #1 was exposed to the unexpected energization of the 

machine which was powered by 480 volts of electricity and as a result could sustain an electric 

shock or be electrocuted. 

Not taking out of service a forklift which was not in safe operating condition as required 
14

by §1910.178(p)(1) can result in serious injury or death to employees. Here, the forklift without 

an operating horn could result in serious injuries or death to employees in the vicinity of the 

moving forklift. Leaks from the forklift also presented slip and fall hazards to employees, 

creating a substantial possibility of death or serious physical harm. 

The Secretary properly characterized the cited violations as serious.

PENALTY DETERMINATION

“In assessing penalties, section 17(j) of the Act requires the Commission to give due 

consideration to the gravity of the violation and the employer's size, history of violation, and 

good faith. 29 U.S.C. § 666(j). Gravity is a principal factor in the penalty determination and is 

based on the number of employees exposed, duration of exposure, likelihood of injury, and 

precautions taken against injury.” Siemens Energy & Automation, Inc., No. 00-1052, 2005 WL 

696568, at *3 (OSHRC February 25, 2005) (citation omitted). "Gravity, unlike good faith, 

compliance history and size, is relevant only to the violation being considered in a case and 

therefore is usually of greater significance. The other factors are concerned with the employer 

generally and are considered as modifying factors.'' Natkin & Co. Mech. Contractors, No. 401, 

1973 WL 4007, at *9, n. 3 (OSHRC April 27, 1973). 

FabArc employs approximately 300 employees at its Oxford, Alabama facility (Tr. 58; 

Exh. J-1 ¶4). It had been inspected three times by OSHA in the five years prior to the inspection 

(Tr. 78). OSHA did not apply any reductions for size or history. However, it applied a 15% good 

faith reduction to each gravity-based penalty. The Court credits FabArc with an additional good 

faith reduction based on its immediate correction of the violative conditions and its cooperation 

with OSHA during the inspection. 

OSHA rated the gravity of the violations in Items 2 and 3 as moderate. CSHO Bollinger 

testified the gravity of the violation cited in Item 2 was rated moderate because employees could 

receive an electric shock if the 480 volt circuit was reenergized, and such an injury could result 

in death (Tr. 72-73).8

 She based the moderate gravity rating for Item 3 on concluding that a 

violation would be of medium severity since any injury could result in hospitalization, and by 

concluding the probability of an injury occurring was lesser because only a few employees were 

8 CSHO Bollinger testified that she had cut and pasted some information in the Violation Worksheet. The 

information for the probability justification should have reflected electrical hazard (Tr. 73). 
15

present in the vicinity of the forklift when it was operated (Tr. 78; Exh. J-23). 

Upon consideration of the gravity of the violations, FabArc’s size, history and good faith, 

the Court assesses a penalty in the amount of $8,500 for ITEM 2; and $5,600 for ITEM 3. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER

Based upon the foregoing decision, it is ORDERED that: 

1. Item 1 of the Citation, alleging a serious violation of § 1910.132(f)(1)(iv), is

VACATED and no penalty is assessed.

2. Item 2 of the Citation, alleging a serious violation of § 1910.147(c)(4)(i), is 

AFFIRMED and a penalty in the amount of $8,500 is assessed.

3. Item 3 of the Citation, alleging a serious violation of § 1910.178(p)(1), is 

AFFIRMED and a penalty in the amount of $5,600 is assessed.

SO ORDERED. 

 /s/ Sharon D. Calhoun 

Dated: August 20, 2019 Administrative Law Judge

 Atlanta, Georgia