United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building – Room 2R90, 100 Alabama Street SW 

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 15-0013

Gestamp Alabama, LLC, 

 Respondent.

Appearances: 

 

LaTasha T. Thomas, Esquire, U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee 

For the Secretary 

 John J. Coleman, III, Esquire, BURR FORMAN, LLP, Birmingham, Alabama 

 For the Respondent 

BEFORE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

This proceeding is before the Occupational Safety and Health Review Commission 

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 

(2014) (the Act). Gestamp Alabama, LLC (hereinafter Gestamp) is an auto parts manufacturer. 

On August 5 - 6, 2014, Occupational Safety and Health Administration Compliance Officer 

(CSHO) Donald Bar Kirby conducted an inspection of Gestamp at 7000 Jefferson Metro 

Parkway in McCalla, Alabama. Based upon CSHO Kirby’s inspection, the Secretary of Labor, 

on December 3, 2014, issued a Citation and Notification of Penalty with two items to Gestamp 

alleging serious violations of 29 C.F.R. §§ 1910.147(c)(4)(i) and 1910.303(c)(3)(i) for failure to 

utilize lock out/tag out procedures and for failure to properly splice an extension cord, 

respectively. The Secretary proposed $9,550.00 for the Citation. Gestamp timely contested the 

Citation. At hearing the parties stipulated to resolution of Item 2 of the Citation alleging a 
2 

violation of 29 C.F.R. 1910.303(c)(3)(i).1 Only Item 1 of the Citation is at issue. 

At the hearing, the Secretary moved to amend Item 1 of the Citation to correct the date in 

the alleged violation description from October 5, 2014, to August 5, 2014. Gestamp did not 

object and the Court granted the motion. 

 A hearing was held in this matter on March 4, 2015, in Birmingham, Alabama. The 

proceedings were conducted pursuant to the Commission’s Simplified Proceedings. 29 C.F.R. §§ 

2200.200-211. Gestamp submitted a post-hearing brief to the Court at the close of the hearing. 

The Secretary filed his post-hearing brief on March 27, 2015. With leave of the Court, Gestamp 

filed a Reply Brief on April 10, 2015. 

 For the reasons that follow, Item 1 is vacated. 

Jurisdiction 

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

Commission pursuant to §10(c) of the Act (Tr. 9). Gestamp 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) (See Prehearing Order of March 2, 2015). 

Background 

The inspection in this matter was initiated upon receipt of a complaint by the 

Birmingham OSHA Area Office alleging lack of lock out/tag out procedures and fall hazards at 

Gestamp’s McCalla facility (Tr. 12-13). The inspection was assigned to CSHO Kirby who 

began his inspection by visiting Gestamp’s facility on August 5, 2014 (Tr. 12-14). Upon arriving 

at the facility, CSHO Kirby met with Richard Metcalf, the plant operations manager, Will Smith, 

the human resources manager, and the company safety manager (Tr. 14). 

CSHO Kirby conducted a walk around inspection of the facility accompanied by various 

management officials (Tr. 14). Included in the inspection was the “blanking press” that was the 

subject of the complaint. While inspecting the blanking press, CSHO Kirby observed an 

employee open a gate to allow entry into the area in which scrap material is ejected in order to 

remove this scrap material. CSHO Kirby testified he observed the employee had not locked or 

 

1 By separate Order, the Court approved the parties’ fully executed Stipulation and Partial Settlement resolving Item 

2 of the Citation. 
3 

tagged out the press when doing so (Tr. 14). CHSO Kirby determined the employee was 

exposed to a rotating shaft during this operation (Tr. 14-19). CSHO Kirby photographed the 

operation, but did not enter the area (Tr. 16; Exh. C-3A). At that time, he notified the 

employee’s supervisor who was in the area and stopped the activity (Tr. 19; Exh. C-3A). 

There is little dispute regarding the operation of the blanking press at issue. The press is 

a Schuler 400-ton mechanical power press (Tr. 73). The press takes rolled coils of steel and cuts 

it into “blanks” used elsewhere in the facility (Tr. 21). While the press is operating, the press 

operator stands at a control panel, protected from the press by a door with windows (Exh. R-4A). 

The press operator inputs a program name and number, depending upon the size of blank needed 

(Tr. 75). He then feeds a coil of steel across a table to the press feeder (Tr. 75). The press 

operator next “inches” the steel into the press to make the cut (Tr. 75). A die cuts the steel into a 

blank of the prescribed size (Tr. 76). Once the blank is cut, the operator decides whether to send 

it to the “stacker table” (see Exh. R-4C) if it meets the specifications, or to the scrap area (see 

Exh. R-4B) if it does not (Tr. 21-22, 74-79). The blank is sent to one or the other area by a 

system of magnetic conveyors (Tr. 22, 74). 

Upon occasion, a press operator must clear scrap material from the scrap area (Tr. 23). It 

is undisputed the press operator clears scrap five to ten times in the course of a shift (Tr. 30, 90). 

In order to remove scrap that has built up, the press operator powers down the press by pushing 

a button at the control panel depicted in Exhibit R-4A (Tr. 44, 67, 80). He then must walk 

approximately 20 yards around the press to pull a key (Tr. 44, 67, 81). According to Will 

Roberts, a press operator with 10 years of experience with Gestamp, this causes “some safety 

fingers” to come down (Tr. 67). The operator then takes that key to the gate blocking access to 

the scrap area. This gate is a 6-foot tall metal fence with a latch that can only be opened by 

inserting this key (Tr. 19-20, 44, 68-70, 81; Exh. C-3A). The latch is depicted in Exhibit C-3B. 

The key retrieved by the press operator is labeled G. After that key is inserted, the press operator 

removes the key labeled 4Z to open the gate (Tr. 45-46, 67, 70, 81). Plant Operations Manager 

Metcalf referred to this as a “double redundant check system.” (Tr. 82). CSHO Kirby referred to 

the system as a “captive key system.” (Tr. 19).2

 

2

 Gestamp has written lockout procedures for the Schuler press (Exh. R-2). These procedures call for verification of 

deactivation of electric, air, and water energy sources in six locations; placing of gravity controlling safety blocks; 
4 

According to CSHO Kirby, the employee had not used the captive key system on the 

latch to open the gate on the day of his inspection (Tr. 21). Rather, the employee had been able 

to enter the scarp area without either powering down the press or pulling the G key because the 

latch on the gate was broken (Tr. 30). CSHO Kirby testified the employee informed him the gate 

had been broken for the preceding two months (Tr. 30). CSHO Kirby also observed a coupling 

to a shaft above the employee’s head was rotating while he was removing the scrap blank (Tr. 

17). CSHO Kirby testified the shaft was partially guarded but the coupling at the end was 

exposed. Otherwise, the conveyor system is guarded (Tr. 55). CSHO Kirby estimated the 

coupling was located 5 feet from the floor (Tr. 17). Metcalf testified the shaft and coupling sit 1 

foot back from where the press operator would stand (Tr. 83). Roberts testified no body part 

comes near this coupling during the scrap removal process (Tr. 67).3

Based upon his observation of the press operator engaged in removing scrap without first 

powering down the press, CSHO Kirby recommended a citation be issued alleging a violation of 

29 C.F.R. § 1910.147(c)(4)(i) for failure to utilize energy control procedures during scrap 

clearing operations. Gestamp timely contested the citation, alleging the cited standard does not 

apply to the operation at issue. 

The Citation 

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

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

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

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

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

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

The standard at 29 C.F.R. § 1910.147(c)(4)(i) requires an employer to develop, document 

and utilize procedures “for the control of potentially hazardous energy when employees are 

 

and ensuring all motion has stopped (Exh. R-2, p. 13). Gestamp does not dispute these procedures were not 

followed by press operators during the scrap clearing process, arguing they are not applicable because they apply to 

maintenance operations not at issue in this proceeding. The Secretary did not allege Gestamp should have followed 

these procedures. 

3

 The undersigned found Roberts to be a credible witness. He gave straightforward answers to all questions. 

Nothing in his demeanor suggested bias or lack of veracity. 
5 

engaged in the activities covered by this section.” In Item 1, Citation 1, as amended, the 

Secretary alleges Gestamp violated the standard as follows: “On or about 8/05/14 – Press Line, 

procedures were not utilized by employees clearing scrap drops on a Schuler 400 ton blanking 

press.” The Secretary contends Gestamp violated the standard when its employee was allowed 

to bypass the captive key system, thereby exposing the employee to the rotating shaft. Gestamp 

contends the standard does not apply. 

Applicability of the Standard 

The standards at 29 C.F.R. § 1910.147 apply to “[s]ervicing 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...” 29 C.F.R. § 

1910.147(a)(i). Section 1910.147(b) defines servicing and/or maintenance as 

Workplace activities such as constructing, installing, setting up, adjusting, 

inspecting, modifying, and maintaining and/or servicing machines or equipment. 

These activities include lubrication, cleaning or unjamming of machines or 

equipment and making adjustments or tool changes, where the employee may be 

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

hazardous energy.

(Emphasis added.) Here, the press operator must clear scrap material from the scrap area on 

occasion. The Court determines clearing scrap material is a cleaning activity, to which § 

1910.147(c)(4)(i) applies because it constitutes maintenance on the blanking press. This does 

not end the inquiry regarding applicability of the standard, however.

In General Motors Corp., Delco Chassis Div., 17 BNA OSHC 1217, 1218 (Nos. 91-

2973, 91-3116 & 91-3117, 1995), the Commission held applicability of the standard is 

predicated on a showing “that unexpected energizing, start up or release of stored energy could 

occur and cause injury.” Although the Commission focused on the requirement that energization 

be “unexpected,” both the decision and the plain language of the standard make clear this 

energization must pose a risk of harm to employees. Id. at 1220. Recently, the D.C. Circuit, 

affirming the Commission’s decision in Otis Elevator Co., 24 BNA OSHC 1081, 1084 (No. 09-

1278, 2013), recognized two prongs to establishing applicability of the standard. Otis Elevator 

Co., v. Seceretary of Labor, 762 F.3d 116 (D.C.Cir. 2014). First, that there be the potential for 

the unexpected energization, start up or release of stored energy. Second, this unexpected 
6 

energization, start up or release of stored energy “could cause injury to employees.” Id. at 121. 

The cited standard only applies if the record establishes an employee is exposed to the zone of 

danger created by the unexpected energization of the machine or equipment. 

In order to establish the cited standard applies, therefore, the Secretary must show a 

reasonable person could foresee an employee could enter the zone of danger while engaged in 

the cited maintenance activity, which in this case is cleaning up the scrap material. RGM Constr.

Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995) (“The zone of danger is determined by the 

hazard presented by the violative condition, and is normally that area surrounding the violative 

condition that presents the danger to employees which the standard is intended to prevent.”), 

Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (“[T]he 

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 court finds the preponderance of the evidence fails to establish a risk of harm to the 

press operator during the scrap clearing process. The Secretary has failed to meet his burden to 

establish the standard applies to the cited conditions. 

Although the Citation is worded broadly, CSHO Kirby described the hazard as an 

exposed coupling at the end of an otherwise guarded rotating shaft. CSHO Kirby’s testimony 

failed to elucidate how a press operator would be exposed to this coupling. He testified: 

Q: The part of the machine that was hazardous to the employee was the fact he 

was under the conveyor with rotating shafts and couplings above him. 

Q: When you say he was under it, could you explain? 

A: He stepped into the framework of the equipment under the conveyor itself to 

receive – to remove the scarp, so he ducked under to grab to it. 

Q: And how would he be exposed to the hazard, being ducked under? 

A: When he stood up or if for some reason his body moved into that area. 

(Tr. 37). 

CSHO Kirby’s testimony does not sufficiently describe how an employee could come 

into contact with the coupling for the court to find a reasonable person could foresee a press 

operator could enter the zone of danger while engaged in the scrap clearing operation. The shaft 

was estimated to be 1 foot in front of where the employee stood and was an estimated 5 feet off 

the ground. CSHO Kirby took no measurements of the distance of the press operator from the 
7 

shaft and never entered the area in which the press operator was working. Thus, he could not 

have observed whether contact with the coupling, or any other part of the conveyor,4 was 

foreseeable or even possible. His testimony regarding the potential for contact with the coupling 

is speculative. Nor does the Secretary’s photographic evidence provide conclusive proof the 

press operator was, or could be, anywhere near any moving parts. In contrast, Roberts who 

worked in the area clearing scrap, testified no body part comes in proximity to the shaft during 

the scrap clearing operation. The Secretary has failed to establish the scrap clearing operation 

was an operation in which the unexpected energization of the press could cause injury to 

employees.5

 The Secretary has failed to meet his burden to establish the cited standard applies. 

Item 1 of Citation 1 is vacated. 

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: 

Item 1, Citation 1, alleging a violation of 29 C.F.R. § 1910.147(c)(4)(i) is hereby vacated. 

 /s/ Heather Joys

__________________ 

Date: April 16, 2015 HEATHER A. JOYS 

 Administrative Law Judge 

Atlanta, Georgia

 

4

 The court notes the quoted passage is the only time CSHO Kirby described the hazard as part of the conveyor other 

than the unguarded coupling. CSHO Kirby’s inconsistent testimony on the hazard addressed in the Citation further 

undermines the Secretary’s evidence. 

5 The same analysis would apply equally to the Secretary’s burden to establish employee exposure to a hazard. 

Therefore, even assuming applicability of the cited standard to the operation at issue, the court would vacate the 

citation on the ground the Secretary failed to establish employee exposure to a hazard.