United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 17-0637 

General Dynamics Land Systems, Inc.,

 Respondent.

Attorneys and Law Firms: 

Schean Belton, Esquire, U.S. Department of Labor, Office of the Solicitor, Nashville, TN,

for Complainant

Eric Hobbs, Esquire, Ogletree Deakins Nash Smoak & Stewart, P.C., for Respondent

JUDGE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

On October 3, 2016, a warehouse employee of General Dynamics Land Systems, Inc. 

(GDL) was seriously injured when seven crates containing 94-pound struts fell from a stack onto 

him as he was inventorying them. There were no witnesses to the accident and the injured 

employee has no memory of the event. Following an inspection by Compliance Safety and 

Health Officer (CSHO) William Glasscock of the Birmingham, Alabama, Area Office of the 

Occupational Safety and Health Administration (OSHA), the Secretary concluded the cause of 

the accident was the instability of the stack of crates. The Secretary issued GDL a citation 

alleging a serious violation of 29 C.F.R. § 1910.176(b) for failure to ensure the stack of crates 

was stable, for which he proposed a penalty of $9,234. GDL timely contested the citation 

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

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

GDL contends the accident was not caused by the instability of the stack, but, by the injured 

employee climbing on the stack, causing it to fall. 
2

I held a hearing in this matter on December 6, 2017, in Birmingham, Alabama. The 

parties filed post-hearing briefs on February 12, 2018.1

For the reasons discussed below, the citation is vacated.

Jurisdiction

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

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

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

commerce within the meaning of § 3(5) of the Act (Tr. 9-10). Based on the parties’ stipulations 

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

has jurisdiction over this proceeding.

Background

GDL is a large defense contractor. Among its operations is production of Stryker

vehicles, a family of wheeled military vehicle. The facility at issue, located near the Anniston 

Army Depot in Anniston, Alabama, is a warehouse for Stryker parts. It is referred to in the 

record as the Warner Warehouse. At the Warner Warehouse, GDL receives parts in its receiving 

department. These parts are taken to the floor of the warehouse where they are stacked and their 

location recorded by the GDL employees assigned to inventory control (Tr. 155). Large parts 

arrive crated with various numbers on the crates, including part and serial number (Tr. 186). 

When parts are ordered, the inventory control employees pick the parts from the stacks in the 

warehouse and take them to the shipping department (Tr. 158).

GDL stores parts at the Warner Warehouse on shelves and on the floor in stacked crates 

(Exh. R-11 at p. 8). Due to their size, many of the parts come individually crated. Large, 

individually crated parts are stacked one on top of the other (Exh. R-11 at pp. 1-7). GDL has 

requirements for these stacks of crated parts. The crates must be suitable for stacking (Tr. 36, 

161, 232). Only like parts can be stacked on top of like parts to maintain the same footprint (Tr. 

35, 161, 231-32). Corners of the stacks must be square (Tr. 35). The height of a stack cannot 

exceed 15 feet (Tr. 231). Crates are to be stacked so that they do not move (Tr. 35-36).

GDL maintains a record of all the parts at the Warner Warehouse. Employees assigned 

to inventory control routinely count and check that record with the parts stored in the warehouse

 

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

abandoned.
3

as part of GDL’s inventory control process. At the beginning of their shifts, employees are given 

written lists of the parts they are to check. Some of the assignments are simple counts, some 

involve checking serial numbers of each item to be inventoried. Various types of equipment are

available for employees to use when their task requires them to read labels on the top of stacks or 

to move the parts to read the labels (Tr. 22, 188). These include order selectors, stackers, 

forklifts, and ladders (Tr. 173).2

On October 3, 2016, Jason Johnson, Materials Team Lead and the injured employee’s 

supervisor, assigned the injured employee to perform a “cycle count.” (Tr. 186, 214) Johnson 

provided the injured employee with a spread sheet containing a list of parts designated by 

location and serial number that the injured employee was to count (Tr. 21, 186, 214). The 

injured employee went to the “upper bulk” where large parts were located (Tr. 21, 27). The 

stack he was to inventory contained struts to the Stryker vehicle individually housed in wooden 

crates. A single crated strut weighs 94 pounds (Tr. 234). Each crate was labeled with the serial 

number of the strut (Tr. 216-17). The stack was 10 crates high or 11 feet, 4 inches (Tr. 245). 

The injured employee was to read each serial number and check it off his list. The injured 

employee testified he had inventoried this stack several times before (Tr. 36).

The injured employee worked alone. He testified he has no recollection of any of the 

events of the day after leaving home for work that morning (Tr. 21). At some point seven of the 

crates containing the struts fell from the top of the stack onto the injured employee (Tr. 208). He

was found unconscious with the crates on top of him (Tr. 186-87, 207-08). There was no ladder 

or other equipment in the area (Tr. 187). No one had witnessed the accident. The injured 

employee sustained serious injuries including a broken leg, injuries to his shoulder and face, and 

possible head trauma (Tr. 10, 24). He remained unable to work as of the date of the hearing (Tr. 

24).

GDL notified the OSHA Birmingham Area office of the accident (Tr. 51). CSHO 

Glasscock of that office was assigned to and conducted an inspection of GDL’s Warner 

Warehouse. Beginning October 11, 2016, CSHO Glasscock performed a walk around inspection 

 

2 The selector, stacker, and forklift used at the GDL warehouse are depicted in Exhibit R-11, pp. 11, 12, and 13, 

respectively (Tr. 173-77).
4

of the Warner Warehouse, including the area in which the accident happened. (Tr. 53-56).3 

CSHO Glasscock interviewed employees who performed work similar to the injured employee 

and supervisory employees. He gathered documentation regarding GDL’s safety and health 

program (Tr. 60-62; Exhs. C-4, C-5, C-6, and C-7). CSHO Glasscock obtained GDL’s job safety 

analysis for material handling and an “EHS” talk titled “Warehouse Operations Safety” used by 

GDL (Exhs. C-5 and C-6). The EHS talk contained a direction to “[b]and or wrap all loose 

materials stored over 10 feet.” (Exh. C-6) CSHO Glasscock noted the strut crates were not 

banded together and concluded GDL was not following its own procedure (Tr. 66). He testified 

all four employees he spoke with expressed the opinion the unbanded crates were unstable (Tr. 

60). CSHO Glasscock conceded he observed no stacks he considered unstable during his 

inspection (Tr. 86). He concluded, based upon the failure of GDL to band crates together and the 

opinions expressed by the employees he interviewed, the crates containing struts were not 

stacked in a stable manner and recommended GDL be issued a citation for failure to comply with 

§ 1910.176(b). GDL timely contested the citation.

The Citation 

Item 1, Citation 1, alleges a violation of § 1910.176(b). The cited regulation is part of 

Subpart N Material Handling and Storage. It reads 

Secure storage. Storage of material shall not create a hazard. Bags, containers, 

bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in 

height so that they are stable and secure against sliding or collapse.

29 C.F.R. § 1910.176(b). The alleged violation description states “On or about 10/11/2016 –

UB2115, 150 Werner Drive, Anniston, AL, an employee was struck by crates while performing 

inventory count of stored military vehicle parts.” The Secretary alleges the struts were stacked 

“at a height and in a manner that was hazardous to employees working in its warehouse on 

October 3, 2016.”4 (Secretary’s Brief at p. 5) The Secretary argues the stack was hazardous

because the stack was “at least 10 feet high” and “not interlocked.” (Secretary’s Brief at p. 5).

 

3 CSHO Glasscock photographed the area where the accident occurred and the stack the injured employee had been 

counting (see Exhs. C-1, C-2 and C-3). The parties agree these photographs were not representative of conditions 

either immediately preceding or after the accident.

4 The alleged violation description refers to conditions on October 11, 2016, the day of the inspection, rather than 

October 3, 2016, the day of the accident. This appears to be error in drafting the citation. The citation describes 

events of October 3, 2016. Respondent’s defense focuses on conditions at the warehouse on October 3, 2016. Both 

post-hearing briefs refer to the October 3, 2016, events. The citation is hereby amended to reflect October 3, 2016, 

as the appropriate date of violation. Based on the evidence presented at hearing and all pleadings, the parties 
5

Discussion

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

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

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

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).

Applicability of the Standard

There is no dispute the standard applies to the cited conditions. The standard at § 

1910.176(b) applies generally to all material in storage. Respondent does not dispute the crated 

struts were in storage. Nor is there any dispute the crated struts were “stored in tiers.” The 

common definition of a tier is “a layer of articles arranged one above another.” Webster’s New 

Collegiate Dictionary. The crates were stored one on top of the other or in tiers (Exhs. C-1, C-2 

and C-3). The standard applies to the stack of crated struts.

Violation of the Standard

A threshold matter to be resolved is the Secretary’s burden to establish noncompliance 

with § 1910.176(b). Neither party squarely addressed this issue. 

The hazard addressed in § 1910.176(b) is that posed by the sliding or collapse of material 

stored in tiers. Generally, a standard presumes a hazard and the Secretary need only show the 

employer violated the terms of the standard. Kasper Electroplating Corp., 16 BNA OSHC 1517, 

1523 (No. 90-2866, 1993). However, a hazard is not presumed when the standard incorporates 

the hazard as a violative element. Bunge Corp v. Secretary of Labor, 638 F.2d 831 (5th Cir. 

1981).

A reading of the standard as a whole leads to the conclusion § 1910.176(b) incorporates 

the hazard as a violative element the Secretary must establish in order to show the employer in 

violation. Although the standard reads as a specific requirement that stored material be “stacked, 

blocked, interlocked and limited in height” those requirements are imposed only so as to ensure 

stability and security of the material. In other words, failure to stack, block, interlock, and limit 

in height tiered material only constitutes a violation of the standard where it creates the hazard of 

 

“squarely recognized” the citation was intended to refer to October 3, 2016. McWilliams Forge Co., 11 BNA OSHC 

2128, 2129-30 (No. 80-5868, 1984). I find the parties have tried the amendment by consent.
6

sliding or collapse.5 It is well recognized that statutes must be read as a whole, “making every 

effort not to interpret a provision in a manner that renders other provisions of the same statute 

inconsistent, meaningless, or superfluous.” Lake Cumberland Trust, Inc. v. E.P.A., 954 F.2d 

1218, 1222 (6th Cir 1992), quoting, Boise Cascade Corp. v. U.S. E.P.A., 942 F2d 1427, 1431-32 

(9th Cir. 1991)). The last phrase of the cited standard incorporates an additional element of the 

Secretary’s prima facie case, i.e. establishing the lack of stability and security against sliding or 

collapse of the stored material. To interpret the regulation otherwise would render the final 

phrase - “so that they are stable and secure against sliding or collapse” – superfluous. To 

establish a violation of § 1910.176(b), the Secretary must show the stack of strut crates was not 

stable and secure against sliding or collapse.

The Secretary’s theory of violation has been a moving target throughout this case. The 

alleged violation description references only the fact of the October 3rd accident as the basis for 

finding GDL in violation of the standard. CSHO Glasscock initially testified he found GDL in 

violation of the standard because it had not enforced its own procedure calling for banding of 

loose materials (Tr. 66). When prompted, CSHO Glasscock suggested the height of the stack 

and the weight of the struts contributed to the stack’s instability (Tr. 94). In his brief, the 

Secretary argued because the struts were stored 10 feet high and the crates were not interlocked

they created a hazard. As proof of this hazard, the Secretary points to the accident.

To the extent the Secretary’s theory of violation relies on GDL’s failure to band the strut 

crates, the theory fails. The plain language of the standard does not require banding of material.

The standard does require material stored in tiers be interlocked. The term “interlock” is 

not defined in the standard. Nor has the Commission provided any guidance on interpretation of 

the term as used in the standard. The dictionary definition of the term “interlock” is “to lock 

together” or “to connect so the motion or operation of any part is constrained by another.” 

Webster’s New Collegiate Dictionary. As evidenced in the photographs at Exhibits C-1, C-2, and 

R-11, nothing about the manner in which the crates are stored could reasonably be interpreted as 

 

5

In holding the Secretary must show the failure to stack, block, interlock and limit in height creates a hazard, I find 

it is not necessary to reach GDL’s argument regarding whether the word “and” as it is used in the standard should be 

read in the conjunctive or disjunctive. GDL argues to interpret the word “and” in the conjunctive would result in a 

finding tiered material otherwise stable and secure, i.e. posing no hazard, could never be in compliance unless it 

meets all four criteria enumerated in the standard. Requiring the Secretary to establish the existence of the hazard of 

lack of stability or security against sliding or collapse of any material stored in tiers eliminates the concern raised by 

GDL that interpreting the word “and” in the conjunctive would lead to this absurd result. 
7

being locked together or connected such that one crate constrains the motion of the other. 

Earnest Marquez, GDL’s Section Manager in charge of the Warner Warehouse testified the 

crates were stacked one on top of the other such that if the top of the stack were to “topple over, 

[the] whole stack would probably go.” (Tr. 250) The Secretary established the crates were not 

interlocked. The Secretary has also alleged the stack of crates was not “limited in height.” The 

Secretary’s burden is only met if the height of the stack, the failure to interlock the crates, or both 

rendered the stack unstable or not secure against sliding or collapse.

Neither the term “stable” nor “secure” is defined in the standard. The common 

understanding of the term stable is “placed so as to resist forces tending to cause motion or 

change.” Webster’s New Collegiate Dictionary. Secure is used to refer to something “free of 

danger” or “affording safety.” Webster’s New Collegiate Dictionary. To meet his burden, the 

Secretary must establish the crates were stacked so that they would be unable to resist a force 

tending to cause the stack to move in a manner that was unsafe or posed a danger. Under the 

specific terms of the standard, the movement to be prevented is sliding or collapse. 

This interpretation of the Secretary’s burden is consistent with the Commission’s longstanding precedent in Clement Food Company, 11 BNA OSHC 2120 (No. 80-607, 1984).6

 The 

question in Clement Food was whether a stack of boxes was configured in a manner that 

rendered it unstable in violation of § 1910.176(b). The citation had alleged a 15-foot high, tiered 

stack of boxes was not interlocked or blocked and the top tier was leaning. In affirming the 

alleged violation, the Administrative Law Judge relied on evidence the center mass of the stack 

was “so displaced that any shock or vibration...could cause the top tier to fall.” Id. On review 

the employer argued the stack was not unstable because an outside force was needed to cause a 

slip or collapse. The Commission disagreed the standard required the Secretary to establish 

material stored in tiers is inherently unstable. The Commission held § 1910.176(b) “is not 

limited by its words to stacks so unstable that they might collapse of their own weight.” Id.

This interpretation of § 1910.176(b) was upheld by the Fifth Circuit in an unpublished 

decision in Sanderson Farms, Inc. v. OSHRC, 348 Fed. Appx. 53 (5th Cir. 2009). In Sanderson 

Farms, the Fifth Circuit upheld the ALJ’s finding7of a violation of § 1910.176(b) holding,

 

6 Neither party addressed this apposite Commission precedent.

7 The Commission declined review of the ALJ’s decision and the ALJ’s decision became a final order of the 

Commission.
8

“although the entire structure was basically stable when undisturbed, the pallets and boxes 

became unstable when they were struck or disturbed.” Id.

The record establishes the stack of crates that fell on the injured employee was not 

configured “to resist forces tending to cause motion or change.” Although the evidence in this 

record fails to establish what force acted on the stack of crates, it is not necessary for the 

Secretary to make that showing. It is enough the record establishes the stack was capable of 

sliding or collapsing when struck or disturbed. 

GDL’s contention the Secretary must establish the cause of the accident is rejected. In 

making this argument, Respondent relies on Koppers Company, Inc., 1 BNA OSHC 666 (No. 

402, 1972) and Buckeye Fabricating Co., 14 BNA OSHC 2145 (Nos. 90-948 and 90-1013, 

1991). Both are unreviewed ALJ decisions with no precedential value. Both are also inapposite. 

In Koppers Company, the ALJ vacated a citation alleging a violation of § 1910.176(b) finding 

the material that had fallen and injured an employee was not being stored. Therefore, the 

standard did not apply. Similarly, in Buckeye Fabricating, the ALJ found the standard did not 

apply because the material that had fallen and injured an employee was not stored in tiers. In 

both cases, the actions of the employees preceding the accident were dispositive of the issue of 

whether the standard applied. Here, the cause of the sliding of the crates is not dispositive of 

whether GDL violated the standard.

8

The record establishes the stack of strut crates slid while the injured employee was 

inventorying its contents. The crates were not interlocked such that the force that acted on the 

stack was capable of causing it to slide or collapse. It was not stable and secure within the 

meaning of the standard. The Secretary has established GDL was in violation of § 

1910.176(b).9

Employee Exposure

 

8 GDL appears to be arguing the only force capable of causing the stack to slide is one it could not reasonably have 

foreseen being applied to the stack. It seems reasonable the standard was not intended to require employers to 

ensure stability against all outside forces no matter how great or unpredictable. I find this is an issue more 

appropriately addressed with regard to the Secretary’s burden to establish employer knowledge of the violative 

condition.

9

In so holding, I have placed no reliance on the testimony of CSHO Glasscock that four employees told him they 

believed the stacks were unstable (Tr. 59-60, 81-82). This testimony regarding the opinion of unnamed employees 

that certain unidentified stacks of crates were unstable, without any explanation as to the basis for the opinion is not 

probative evidence of a violation.
9

To establish exposure, the Secretary must show that an employee was actually exposed to 

the cited condition or that access to the cited condition was reasonably predictable. Phoenix

Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995). As evidenced by the accident, 

the injured employee was exposed to the hazard of being struck by the strut crates when the stack 

slid and fell on him. Other inventory control employees preforming similar work would likewise

be exposed. The Secretary has met his burden to establish employee exposure to the cited 

condition.

Employer Knowledge

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

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

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

burden, the Secretary must establish GDL was aware the manner in which the crates were 

stacked rendered them unstable. I find he has not met that burden.

The stack that fell on the injured employee had been in the same location and condition 

since 2014 (Tr. 190). There was no evidence it had ever shifted or shown any signs of instability 

in the past (Tr. 190). The injured employee had inventoried the stack on three prior occasions 

(Tr. 36, 190). He testified it had always been stable (Tr. 36). He did not testify he complained 

about the condition of the stack on the day of the accident or any other time. CSHO Glasscock 

testified he observed no unstable stacks during his inspection. With the exception of the height, 

there is no difference between the manner in which the crates were stacked on the day of the 

accident and the day of the inspection. The Secretary identified nothing in any of the 

photographic evidence constituting a visible sign of a hazardous condition.10 The Secretary 

failed to establish GDL had actual knowledge the stack that fell on the injured employee was 

unstable prior to the accident.

The Secretary relies on the testimony of the injured employee that he told Johnson and 

another supervisor11 the stacks were “unsafe” and that “somebody is going to get hurt.” (Tr. 27) 

 

10 In both Clement Foods and Sanderson Farms, cited herein, although the stacked material became unstable only 

when an outside force was applied, there were signs the stacks were susceptible to collapse under such 

circumstances. In Clement Foods, the photographic evidence showed the top tier of the stack was leaning. In 

Sanderson Farms, the racks upon which boxes were stacked were “dilapidated and their legs were often twisted or 

broken” and the tiers of boxes were leaning.

11 There is some dispute in the record as to whether this second person was a supervisory level employee. It is not 

necessary to reach that issue.
10

The Secretary presented evidence other employees similarly felt some of the stacks were 

unstable, but presented no evidence these employees ever notified supervisory employees of this 

concern. Nor is there any documentary evidence of employee complaints about unstable or 

unsafe stacks of crates (Tr. 140-41). The record contains no evidence of any prior accidents 

involving a collapse or slipping of the stacked crates (Tr. 102-03, 139, 231).12 There was no 

evidence the stacks have been subject to being struck by any of the various material handling 

equipment at the Warner Warehouse. The evidence presented by the Secretary, that the injured 

employee told his supervisor about an unspecified unsafe stack at an unspecified time, is 

insufficient to establish management at GDL was put on notice of a hazardous condition 

associated with any specific stack of crates or, more importantly, the manner in which GDL 

stacked the crates generally.

To the extent the Secretary attempted to establish GDL had constructive knowledge the 

stacks were unstable, his evidence fails to do so. Constructive knowledge is shown where the 

Secretary establishes the employer could have known of the cited condition with the exercise of 

reasonable diligence. Par Electrical Contractors, Inc., 20 BNA OSHC 1624, 1627 (No. 99-

1520).

Whether an employer was reasonably diligent involves a consideration of several 

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

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

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

of violations.

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

“Reasonable diligence implies effort, attention, and action not mere reliance upon the action of 

another.” Carlisle Equipment Co. v. Secretary of Labor, 24 F.3d 790, 794 (6th Cir. 1994). The 

Commission has held that “[r]easonable steps to monitor compliance with safety requirements 

are part of an effective safety program.” Southwestern Bell Tel. Co., 19 BNA OSHC 1097, 1099 

(No. 98-1748, 2000 (citations omitted), aff’d without published opinion, 277 F.3d 1374 (5th Cir. 

2001). 

As previously noted, the Secretary posited no explanation as to the force that caused the 

stack to slide. Although the Secretary need not show the exact cause of the accident, he must 

 

12 Jackie Waldron, the Director of Operations for GDL in Anniston, testified if material had fallen, a report would be 

required because, as a defense contractor, GDL would have to make restitution for any damage (Tr. 102-03).
11

show how GDL could have been aware the stack was unstable. In other words, the Secretary 

must show sliding or collapse of the stacks was a hazard a reasonably diligent employer would 

have anticipated under the circumstances. The record as a whole fails to do so.

The injured employee testified when orders are picked, employees don’t always restack 

the material in a stable manner (Tr. 31). The injured employee testified that reporting unstable 

stacks to his supervisor was an almost daily occurrence (Tr. 41). He testified Johnson would 

likewise identify unstable stacks to him (Tr. 41). When that happens, he testified Johnson would

require the stack be fixed (Tr. 31). Johnson testified part of his job was to walk the warehouse to 

observe the condition of the stacked material (Tr. 213). He testified he observed unstable stacks 

infrequently, but when he did, he had the inventory control employees restack and stabilize them 

(Tr. 159). The injured employee corroborated Johnson always had him fix a stack identified as 

unstable (Tr. 42). The Secretary contends this evidence establishes GDL’s knowledge of the 

hazardous condition of the stacks at the Warner Warehouse. I disagree this is the proper 

inference to be drawn from this evidence.

GDL has a comprehensive safety and health program on which its employees are trained 

(Tr. 134; Exhs. R-8 and R-10). GDL has standard procedures for stacking materials. These 

include maintaining the same footprint throughout the stack, limiting stacks to 15 feet13, and 

ensuring the condition of the crates are suitable for stacking (Tr. 231-32). The injured employee 

testified he was aware of these rules, including a rule that the stack “can’t be moving.” (Tr. 

35036). GDL conducts both internal safety audits and third-party audits (Tr. 135-36). Delbert 

Hopper, GDL’s Environmental Health and Safety Representative, testified no auditor has ever 

identified the manner in which GDL stacks crates at the Warner Warehouse as hazardous or 

otherwise non-compliant (Tr. 138). 

Although a storage facility, GDL’s warehouse is a dynamic environment. Material is 

received, moved to storage, ordered, pulled or picked, and shipped out. It is inevitable the 

condition of stacks will change. The evidence establishes the inventory control process results in 

frequent observation of the stacks by employees. The Secretary contends the process of 

restacking crates to ensure their stability was an almost daily occurrence. The record contains no 

 

13 The Secretary presented no evidence establishing GDL’s rule allowing stacks up to 15 feet resulted in some stacks 

being unstable. Nor did he present any explanation why the height of the stack that fell, which was less than 15 feet, 

was hazardous.
12

evidence of prior falls, slips, or collapses of any stack due to instability.14 CSHO Glasscock 

testified he observed no unstable stacks during his inspection. Based upon the record as whole, I 

cannot conclude GDL failed to exercise reasonable diligence to ensure the stability of the stacked 

parts at the Warner Warehouse.

Because the Secretary has failed to establish GDL knew or with the exercise of 

reasonable diligence could have known of the violative conditions of the stacked strut crates, the 

alleged violation of § 1910.176(b) 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. § 1910.176(b) is vacated.

SO ORDERED.

/s/

Date: May 4, 2018 HEATHER A. JOYS

 Administrative Law Judge

 Atlanta, Georgia

 

14 The injured employee testified about one or two incidents during which a stack fell when hit by a forklift (Tr. 29). 

The injured employee could not provide an approximate date of either occurrence. The Secretary provided no 

corroborating evidence of either incident. I give this testimony very little weight.