United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 11-2780-A

PEACOCK ENGINEERING, INC.,

Respondent.

ON BRIEFS: 

Amy S. Tryon, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M. 

Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, 

Solicitor of Labor; U.S. Department of Labor, Washington, DC 

 For the Complainant 

James A. D’Ambrosio, Esq.; Chase M. Stern, Esq.; Stark & D’Ambrosio, LLP, San Diego, CA 

 For the Respondent 

DECISION

Before: MACDOUGALL, Acting Chairman; and ATTWOOD, Commissioner. 

BY THE COMMISSION: 

 Peacock Engineering installs burial crypts at Miramar National Cemetery in San Diego, 

California.1 Prior to installation, the company moves each crypt from the cemetery’s delivery 

area to a staging area, using a forklift equipped with a custom-designed lifting accessory that 

suspends the crypt from the boom in wire rope slings that fit in pre-cut grooves running along the 

sides of the crypt. To attach the lifting accessory to the forklift, Peacock removed the forks from 

the boom and fabricated a custom attachment point.

OSHA alleges that Peacock’s forklift modification violated a provision of the material 

handling equipment standard, providing that “[n]o modifications or additions which affect the 

 

1

 Although California has a state plan approved by the Occupational Safety and Health 

Administration, it does not cover “national memorials.” 29 C.F.R. § 1952.7 (explaining 

California plan coverage). 
2

capacity or safe operation of the equipment shall be made without the manufacturer's written 

approval.” 29 C.F.R. § 1926.602(c)(1)(ii). Administrative Law Judge Patrick B. Augustine 

vacated this citation item, concluding that the Secretary failed to establish that the modification, 

which Peacock conceded was not approved by the manufacturer, affected the capacity or safe 

operation of the forklift.2

On review, the Secretary claims that the forklift modification affected the “safe operation 

of the equipment.”3 29 C.F.R. § 1926.602(c)(1)(ii). The two Commission members are divided 

on this issue. To resolve this impasse, the members agree to vacate the direction for review, 

thereby allowing the judge’s decision to become the final appealable order of the Commission, 

with the precedential value of an unreviewed administrative law judge’s decision. See, e.g.,

Action Elec. Co., 25 BNA OSHC 2120, 2121 (No. 12-1496, 2016), appeal docketed, No. 

16-15792 (11th Cir. Sept. 1, 2016); Cranesville Aggregate Cos., 25 BNA OSHC 2001, 2002 

(No. 09-2011, 2016), appeal docketed, No. 16-2055 (2d Cir. June 17, 2016); Texaco, Inc., 8 

BNA OSHC 1758, 1760 (No. 77-3040, 1980) (consolidated); Rust Eng’g Co., 11 BNA OSHC 

2203, 2205 (No. 79-2090, 1984); Safeway, Inc., 20 BNA OSHC 1021, 1023 (No. 99-0316, 

2003), aff’d, 382 F.3d 1189 (10th Cir. 2004); Timken Co., 20 BNA OSHC 1070, 1072 (No. 97-

0970, 2003). See also 29 U.S.C. §§ 659(c), 660(a)-(b), 661(i). Accordingly, the direction for 

review is vacated. The separate opinions of the two participating Commission members follow. 

SO ORDERED.

/s/ 

 Heather L. MacDougall 

 Acting Chairman 

 /s/ 

Dated: April 27, 2017 Cynthia L. Attwood 

Commissioner

 

2

 The judge’s decision was issued in Docket No. 11-2780, from which the citation item at issue 

here was severed in an order issued today. See Commission Rule 10, 29 C.F.R. § 2200.10. A 

decision in Docket No. 11-2780 has also issued today. 

3

 The Secretary does not dispute the judge’s conclusion that the forklift modification did not 

affect the forklift’s capacity. 
3

Separate Opinion of Acting Chairman MacDougall 

MACDOUGALL, Acting Chairman. 

My colleague and I agree that the only issue presented in this case is whether the 

Secretary has proven that the employer’s modification of a forklift “affect[ed] the . . . safe 

operation of the [forklift].”1

 29 C.F.R. § 1926.602(c)(1)(ii). We disagree on whether the 

Secretary has met his burden to prove the alleged violation. Like the judge, I would find the 

Secretary failed to present credible evidence that the modification of the forklift affected its safe 

operation. Further, I would not find, as would my colleague, a violation based on a theory not 

raised by the Secretary at any point in this case (and sua sponte by her). In my view, to do so 

would not be in accordance with Commission and court precedent or Commission rules, and 

would deprive Peacock Engineering, Inc. of due process. 

Background 

On May 6, 2011, Peacock was installing burial crypts at Miramar National Cemetery in 

San Diego, California. The Miramar job for Peacock began in September 2010. By the time of 

OSHA’s inspection, Peacock had installed approximately 11,000 crypts, each weighing 8,472 

pounds, using a modified SkyTrak 10054 rough terrain forklift. To hoist the crypts, Peacock 

removed the forks that were originally on the end of the forklift’s boom and replaced them with 

an anchorage that the company fabricated. The anchorage consisted of two steel plates and a 

steel “block” welded together, with an eye-bolt welded to the block. 

The Secretary alleged that Peacock “removed the manufacturer forks, and added an 

employer crafted, custom attachment on the end of the [forklift’s] boom without the approval of 

the manufacturer,” in violation of § 1926.602(c)(1)(ii). The judge found that 

§ 1926.602(c)(1)(ii) applies, but he vacated the item based on the Secretary’s failure to establish 

noncompliance with the cited provision, which the judge viewed as requiring proof of three 

elements: “(1) there was an addition or modification to the forklift, (2) that affected [either] the 

forklift’s capacity or [its] safe operation, and (3) [Peacock] failed to procure the manufacturer’s 

 

1

 Section 1926.602 (“Material handling equipment”) is contained in Subpart O—“Motor 

Vehicles, Mechanized Equipment, and Marine Operations”—of the Construction Standards. 

Section 1926.602(c) covers “[l]ifting and hauling equipment” not otherwise excluded. 
4

written approval.” The parties stipulated to the facts underlying the first and third elements,2 but 

the judge concluded that the second element was not shown because the Secretary failed to 

“present credible[,] objective[,] and verifiable evidence that either the capacity or the safe 

operation of the forklift was affected.” 

Discussion 

On review, the Secretary argues that the judge erred in finding that Peacock’s 

modification of the forklift did not affect its safe operation. According to the Secretary, the 

relevant modification “need not be demonstrably defective in order for the safe operation of the 

forklift to be ‘affected’ within the meaning of” § 1926.602(c)(1)(ii).3

 He claims that the cited 

provision requires manufacturer approval of equipment modifications “that could, knowingly or 

unknowingly, compromise safety.” I disagree with the Secretary’s construction of 

§ 1926.602(c)(1)(ii). 

“When determining the meaning of a standard, the Commission first looks to its text and 

structure.” JESCO, Inc., 24 BNA OSHC 1076, 1078 (No. 10-0265, 2013) (citing Superior 

Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003)). “If the wording is 

unambiguous, the plain language of the standard will govern, even if the Secretary posits a 

different interpretation.” Id. (citing Superior Masonry, 20 BNA OSHC at 1184; Blount Int’l 

Ltd., 15 BNA OSHC 1897, 1902 (No. 89-1394, 1992)). “Both the courts and the Commission 

have rejected the Secretary’s interpretation of a standard when it strains the plain meaning of the 

regulatory text.” Id. (citing Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, 1418-19 (No. 

89-1206, 1993)). In making this determination, “[a] standard must be read as a coherent whole 

and, if possible, construed so that every word has some operative effect.” Id. (citing Am. Fed’n 

of Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 737, 740 (D.C. Cir. 1986); E. Smalis Painting 

Co., 22 BNA OSHC 1553, 1580 (No. 94-1979, 2009); Summit Contractors, Inc., 23 BNA OSHC 

1196, 1202-03 (No. 05-0839, 2010), aff’d per curiam, 442 F. App’x 570 (D.C. Cir. 2011) 

(unpublished)). 

 

2

 The Joint Stipulation filed by the parties states, in pertinent part, that Peacock “did not obtain 

written approval from the Forklift manufacturer for the modifications to the Forklift and its 

custom lifting accessory.” 

3

 The judge dedicated a portion of his decision to the issue of whether “the load capacity of the 

forklift has been affected by virtue of the modification or addition,” concluding that the Secretary 

“was unable to show that [the capacity] was, in fact, affected.” On review, the Secretary relies 

only on a “safe operation of the equipment,” 29 C.F.R. § 1926.602(c)(1)(ii), theory of violation. 
5

The plain language of the cited provision prohibits, in the absence of manufacturer 

approval, equipment modifications “which affect the . . . safe operation of the equipment.” 29 

C.F.R. § 1926.602(c)(1)(ii) (emphasis added). “Affect” is defined as “to act on; to produce an 

effect or change in,” Random House Dictionary of the English Language 24 (1971); it is not, as 

the Secretary would read it, the potential for such an effect or change. As such, to prove a 

violation, the Secretary must show that the equipment’s safe operation was in fact affected by the 

modification at issue. This is consistent with the second part of § 1926.602(c)(1)(ii), which 

states that “[i]f such modifications or changes are made, the capacity, operation, and 

maintenance instruction plates, tags, or decals shall be changed accordingly,” and “[i]n no case 

shall the original safety factor of the equipment be reduced.” Because this part of the standard 

requires the employer to make labeling changes reflecting the modification’s effects, and to 

ensure that the altered capacity/operation labels and instructions maintain the original safety 

factor, the standard contemplates manufacturer approval of modifications that actually affect safe 

operation. Indeed, this second part of the standard does not condition the requirement to alter the 

capacity/labels, etc., if necessary—it directs that they be made “accordingly.” In short, given the 

text of the standard and its context, I would find that the Secretary’s position that the standard 

requires manufacturer approval for modifications that could, but do not in fact, affect safety is 

inconsistent with the standard’s plain meaning and should therefore be rejected. See JESCO, 24 

BNA OSHC at 1078. 

Thus, the Secretary must establish that Peacock’s forklift modification affected its safe 

operation. I agree with the judge that the Secretary’s “arguments with respect to the safe 

operation of the forklift are speculative at best” and limited to “unexamined or untested 

assumptions about the integrity of the weld.” The testimony of the Secretary’s expert, James 

Nelson, was devoted to the speculative risk that the weld attaching the eye bolt to the forklift 

could fail while supporting a dynamic load. Nelson reached this opinion after reviewing a 

photograph of the anchorage and a video of the forklift transporting a crypt, but he did not 

physically examine the forklift or the anchorage. Addressing the welded connection of the eyebolt to the block, he testified that “in 90 percent of the cases where any load transferring member 

is designed, the most concerning feature of that design is always the connection” of that member, 

particularly where, as here, the load is dynamic rather than just static. Specifically, Nelson 

testified that “[t]he nature of the area,” the “large inconsistencies in the surface terrain,” and the 
6

fact that “[t]he load . . . was swinging” can “put very large stresses on the welded attachment,” 

and that the weld used to connect the eye-bolt “has a number of ways in which it can fail. And 

when it fails . . . very small inclusions in the weld can very quickly turn into linear flaws, cracks, 

and propagate through the weld in a single use.” He also stated that the geometry, configuration, 

and metallurgy of the weld are “key factors.” 

Although Nelson’s testimony appears to be that the design of the anchorage was such that 

it was essential for the weld to have been done properly, he never identified any specific design 

or fabrication flaws in the eye-bolt weld or other parts of the anchorage; in other words, he 

offered no opinion on whether the weld was in fact deficient. As noted by the judge, “Mr. 

Nelson’s testimony was, for the most part, couched in hypotheticals about what could happen if

the weld were to break in a certain way; however, none of those hypotheticals actually addressed 

identifiable deficiencies in the welded portion of the custom attachment.” As such, the judge 

gave “little weight” to Nelson’s testimony on the issue of whether the modification of the forklift 

affected its safe operation. I agree; therefore, I would find the Secretary has failed to meet his 

burden to prove a violation of the cited standard. 

This should end the discussion in this case as it does not appear that my colleague 

disagrees that the record is insufficient to establish that either the design of the attachment or the 

weld itself were in fact deficient. However, in an effort to salvage the Secretary’s case, she 

advances a theory not even raised by the Secretary. My colleague contends that the Secretary 

nonetheless established that the modification of the forklift “affect[ed] the . . . safe operation of 

the equipment” on the theory that it changed the equipment “to essentially that of a crane”—a 

term not found once in the Secretary’s argument, either before the judge or upon review. My 

colleague would find that because Peacock “transformed the forklift into a crane,” it was not 

operating as intended and was therefore not safe.4

 

4

 My colleague references provisions in the crane standard as a basis for finding that the forklift 

modification—which she concludes made the forklift into a crane—affected its safe operation. I 

fail to see how the existence of the crane standard can serve as a substitute for the Secretary 

establishing, as a factual matter, that the modification of the forklift in this case affected its safe 

operation. My colleague’s contention that the forklift modification made it a crane “subject to 

the requirements of the crane standard” also begs the question of whether the Secretary should 

have cited the employer for a violation of the more specifically applicable crane standard (thus 

preempting the cited material handling equipment standard). See 29 C.F.R. § 1926.20(d)(1) (“If 

a particular standard is specifically applicable to a condition, practice, means, method, operation, 
7

In support of her position, my colleague cites testimony by Nelson that, upon watching a 

video of the operating forklift, he observed a swaying motion of the crypt. However, Nelson’s 

testimony regarding the swinging of the crypt was, as the judge found, limited to how such 

swinging could impart “dynamic, lateral stress on the weld, which, if it failed, could strike 

employees in the vicinity of the load, including the operator of the forklift.” (Emphasis added.) 

As such, even under the Secretary’s own theory, any hazard presented by the swinging was 

limited to if the weld failed—a claim, as already discussed, the judge found to be speculative. 

In addition, the judge credited the testimony of Peacock’s expert, James Robert Harrell, 

on the issue of whether there was any sway that affected the safe operation of the forklift. 

Harrell noted that the forklift, although it is depicted in the video as operating on uneven ground 

while hauling a crypt, was able to remain stable with all wheels firmly on the ground. Harrell 

also noted that the design of the forklift, including its front tires and outriggers, accounted for 

operating in rough terrain and for uneven and dynamic loads, and concluded that the 

 

or process, it shall prevail over any different general standard which might otherwise be 

applicable to the same condition, practice, means, method, operation, or process.”); Brand 

Energy Sols. LLC, 25 BNA OSHC 1386, 1389 (No. 09-1048, 2015) (finding preemption of cited 

provision by more specifically applicable standard). It appears that my colleague tries to avoid 

the preemption issue by claiming that the crane standard’s modification provision applies only to 

the modification of cranes and that even if it’s true that the modification of the forklift turned 

what had been a forklift into a crane, the machine that was modified was (originally) a forklift, 

not a crane. However, the crane standard, as my colleague notes, includes within its coverage 

forklifts that are “configured to hoist and lower (by means of a winch or hook) and horizontally 

move a suspended load.” 29 C.F.R. § 1926.1400(9). If a forklift is configured such that it is 

covered by the crane standard, presumably the modification requirements of that standard would 

be more specifically applicable than the modification requirements of the material handling 

equipment standard. See 29 C.F.R. § 1926.1434(a) (“[m]odifications or additions which affect 

the capacity or safe operation of the equipment are [with certain exceptions] prohibited”). In 

theory, the Secretary could have then also cited the crane operation provisions, such as the 

rotational speed provision. See 29 C.F.R. 1926.1417(v) (“[r]otational speed of the equipment 

must be such that the load does not swing out beyond the radius at which it can be controlled”). 

However, in my view, the Secretary cannot (even if he had made this argument) use one standard 

for proof of a hazard for another cited standard while conveniently ducking the question of 

whether the standard he chose to cite is the more specifically applicable one. Moreover, this is 

yet another theory that the Secretary has not raised and the company has had no opportunity to 

address. Thus, since neither of the parties thought of the forklift as a crane, it is unreasonable for 

my colleague to suggest that Peacock waived any affirmative defense of preemption by not 

raising it. 
8

modification did not affect its safe operation. I find no basis to disrupt the credibility 

determinations and factual findings of the judge.5

I am particularly unwilling to upset the judge’s sound ruling pursuant to my colleague’s 

theory, raised sua sponte on review, and not raised, tried, or argued by the parties.6

 In general, 

an appellate court does not consider an issue not passed upon below. In Hormel v. Helvering, 

312 U.S. 552 (1941), the Supreme Court explained that this is “essential in order that parties may 

have the opportunity to offer all the evidence they believe relevant to the issues . . . [and] in order 

that litigants may not be surprised on appeal by final decision there of issues upon which they 

have had no opportunity to introduce evidence.” Id. at 556. Applying this general rule, in 

Singleton v. Wulff, 428 U.S. 106 (1976), the Court reversed an appellate court holding on an 

issue not passed on below. The Court noted it had “no idea what evidence, if any, petitioner 

would, or could, offer in defense of this statute, but this is only because petitioner has had no 

opportunity to proffer such evidence. Moreover, even assuming that there is no such evidence, 

petitioner should have the opportunity to present whatever legal arguments he may have in 

defense of the statute.” Id. at 120. 

Indeed, our own Commission Rules follow this principle. Commission Rule 92(c), 29 

C.F.R. § 2200.92(c), provides as follows: 

 

5

 My colleague suggests that she need not defer to the judge’s findings because he did not state 

his credibility determinations as demeanor-based. However, demeanor is but one of the factors 

in assessing the credibility of a witness, and despite her attempts to side-step the issue, it remains 

true that the longstanding Commission precedent is to normally defer to a judge’s credibility 

evaluations. See C. Kaufman, Inc., 6 BNA OSHC 1295, 1297 (No. 14249, 1978) (Commission’s 

policy is to ordinarily accept a judge’s credibility evaluation of witnesses because he has lived 

with the case, heard the witnesses, and observed their demeanor); P. Gioioso & Sons, Inc., 6 

BNA OSHC 1617, 1618 (No. 16215, 1978) (adopting judge’s findings and conclusions where 

they were reached “after observing the demeanor of the witnesses, evaluating their credibility[,] 

and weighing the evidence accordingly”). While the Commission does have ultimate 

responsibility for the findings entered, I see no basis here to stray from the deference typically 

provided, as the judge made careful and impartial credibility findings in light of the entire record 

and explained his reasons for crediting one witness over another. Compare Kaufman, 6 BNA 

OSHC at 1297 (declining to defer to judge’s credibility determinations where he did not comply 

with Administrative Procedure Act’s requirements of mentioning and resolving conflicting 

witness testimony); Asplundh Tree Expert Co., 6 BNA OSHC 1951, 1954 (No. 16162, 1978) 

(remand where judge failed to mention relevant witness testimony and did not make credibility 

determinations). 

6

 The Secretary’s testimony and briefs, both before the judge and upon review, limit the issue of 

the safe operation of the forklift to the possibility for the weld failure.
9

(c) Issues not raised before Judge. The Commission will ordinarily not review 

issues that the Judge did not have the opportunity to pass upon. In exercising 

discretion to review issues that the Judge did not have the opportunity to pass 

upon, the Commission may consider such factors as whether there was good 

cause for not raising the issue before the Judge, the degree to which the issue is 

factual, the degree to which proceedings will be disrupted or delayed by raising 

the issue on review, whether the ability of an adverse party to press a claim or 

defense would be impaired, and whether considering the new issue would avoid 

injustice or ensure that judgment will be rendered in accordance with the law and 

facts. 

The Commission’s application of the rule also bears this out.7 See J.L. Manta Plant Servs. Co., 

10 BNA OSHC 2162, 2163-64 (No. 78-4923, 1982) (amendment sought by the Secretary for the 

first time on review is untimely because the Secretary could have moved to amend before the 

judge); Dover Elevator Co., 16 BNA OSHC 1281, 1285-86 (No. 91-0862, 1993) (declining to 

address certain arguments where the “Secretary has neither made nor sought to make any 

showing of good cause for not raising these arguments below, [or] . . . advised us of any grounds 

on which we can conclude that consideration of his arguments is warranted under . . . Rule 

92(c)”); Erickson Air-Crane, Inc., No. 07-0645, 2012 WL 762001, at *2 n.2 (OSHRC Mar. 2, 

2012) (declining to consider, in section 5(a)(1) case, additional method of hazard abatement 

proposed by the Secretary, “as it was not raised before the judge”) (citing 29 C.F.R. 

§ 2200.92(c)). Here, my colleague has constructed out of whole cloth and without addressing 

any of these factors a theory that is not supported by the record or the judge’s credibility 

determinations and factual findings. Without fair notice, consideration of such a theory would 

deprive Peacock of due process as the company had no opportunity to litigate the issue. 

 

7

 In the limited cases where the Commission has considered issues outside the four corners of the 

record, for the sake of fairness, it has typically directed the new issue for review or sought 

supplemental briefing. See Dravo Corp., 10 BNA OSHC 1651, 1652-53 n.2 (No. 14818, 1982) 

(after review directed, supplemental briefing order issued specifying additional issues); Farmers 

Coop. Grain & Supply Co., 10 BNA OSHC 2086, 2087 (No. 79-1177, 1981) (issue directed for 

review was whether judge erred in vacating section 5(a)(1) citation; Commission raised issue of 

potential applicability of certain standards and later amended citation to allege violation of 

standard); Tidewater Pac., Inc., 17 BNA OSHC 1920, 1921 (No. 93-2529, 1997) (Commission 

requested supplemental briefing on legal issue not raised by parties), rev’d in part on other 

grounds, 160 F.3d 1239 (9th Cir. 1998). Cf. John T. Brady & Co., 10 BNA OSHC 1385, 1386 

(No. 76-2894, 1982) (deciding case on grounds other than those included in direction for review, 

but only because controlling precedent was issued after direction for review). 
10

For all these reasons, I would vacate the citation. 

/s/ 

Dated: April 27, 2017 Heather L. MacDougall 

Acting Chairman
11

Separate Opinion of Commissioner Attwood 

ATTWOOD, Commissioner. 

The only issue here is whether Peacock’s modification of a forklift—replacing the forks 

with a company-crafted, custom hook attachment on the end of the boom to hoist the crypts—

“affect[ed] the . . . safe operation of the [forklift].” 29 C.F.R. § 1926.602(c)(1)(ii). The judge 

found that it did not, noting that the Secretary’s expert, who “was most concerned about the 

stability of the weld” of an eye-bolt to which the custom attachment was affixed, failed to cite 

“identifiable deficiencies in the welded portion.” The cited standard, however, does not require 

proof of defective construction, and the evidence here, despite my colleague’s protestations to 

the contrary, addresses more than just the physical integrity of this weld. Indeed, the record 

shows that Peacock’s modification changed the nature of the equipment from that of a forklift—

which lifts static loads from below—to essentially that of a crane—which hoists swinging loads 

from above—and expert testimony in the record shows that such swinging loads are hazardous. 

As such, I would conclude that Peacock’s modification “affect[ed] the . . . safe operation” of its 

forklift. 

Here we have a modification that changed the very nature of the forklift. As the OSHA 

compliance officer explained, a forklift is designed to move a static load, “lift a stationary object 

[from below], . . . move it forward, and place it down somewhere.” Peacock’s modification 

enabled the forklift to lift and carry suspended, dynamic loads: heavy “objects that are going to 

sway underneath a boom.” In other words, Peacock transformed the forklift into a crane—the 

forklift was no longer operating in the manner intended, let alone in the manner contemplated 

and blessed by its manufacturer. This is evident by simply watching a video of the modified 

forklift in operation. After viewing the forklift hoist a crypt and travel with it swinging from the 

boom for about 200 feet,1

 the Secretary’s expert stated that the fact that “[t]he load itself . . . was 

swinging,” coupled with what “appeared to be large inconsistencies in the surface terrain,” posed 

a danger to “not just employees that might be in the area of the load, but the way that was 

swinging[,] the [forklift] operator himself.”2

 

 

1

 The OSHA compliance officer estimated this as the distance between where the crypts were 

delivered and where they were being installed. 

2

 Peacock’s expert testified that the forklift operator was not endangered because the swinging 

load “would actually hit the front part—the tires and where the front outriggers are and would 
12

My colleague accuses me of constructing this theory—that Peacock’s transformation of 

the forklift into a crane, which handles hazardous swinging loads, affected the equipment’s safe 

operation—“out of whole cloth,” asserting that it was not raised by the Secretary “at any point” 

in this litigation and is not supported by the record. This accusation is unfounded. The Secretary 

stated in his post-hearing brief to the judge that the OSHA compliance officer “testified that 

the . . . safe operation of the forklift [was] affected because the forklift’s anchorage point was 

altered, and the forklift was now lifting from above the load, rather than below it.” (Emphasis 

added.) And the record shows that Peacock was well aware that the “safe operation” issue 

encompassed more than simply the physical integrity of the weld. At the hearing, Peacock’s 

own counsel specifically asked the company’s expert about testimony the Secretary had elicited 

regarding the hazards of a swinging load:3

Q. The [Secretary’s] expert . . . was critical of the use of the forklift over the 

terrain and noted that there was a sway in a video . . . [D]oes that video raise any 

concerns with you with respect to safety? 

A. Not the way that that was being operated. No. 

Q. And is there anything about the sway of the burial crypt that was suspended as 

a load – did that in any way present a recognized hazard to you as you’re sitting 

here and looking at it? 

A. No.

In short, the hazards posed by a swinging load suspended from a forklift that was not designed to 

handle it, and the notion that these hazards “affect[ed] . . . safe operation,” were plainly at issue 

in this case, and so my colleague’s concern about the deprivation of Peacock’s due process rights 

is unwarranted. 

Indeed, that the forklift’s modification affected its safe operation is further confirmed by 

specific requirements in OSHA’s cranes and derricks in construction standard. See 29 C.F.R. 

Subpart CC. The scope provision of that standard renders forklifts, once modified in the manner 

 

not enter the cab or cause any damage to the cab or the operator.” Being directly struck by the 

swinging load, however, is not the only way the operator could be injured. 

3

 As to my colleague’s purported deference to the judge’s supposed “credibility determinations 

and factual findings” related to the experts, I note that the judge made no demeanor-based 

credibility finding to which the Commission need defer. Unlike the cases my colleague cites, 

which deal with credibility determinations involving fact witnesses, the judge here simply 

weighed the opinions of the competing experts, and “we are in as good a position as the judge to 

evaluate the qualifications of the experts and weigh their testimony in light of the other evidence 

of record.” All Purpose Crane, Inc., 13 BNA OSHC 1236, 1239 (No. 82-0284, 1987). 
13

at issue here, subject to the requirements of Subpart CC. The crane standard “applies to poweroperated equipment, when used in construction, that can hoist, lower and horizontally move a 

suspended load.” 29 C.F.R. § 1926.1400(a). The standard generally excludes forklifts. 29 

C.F.R. §1926.1400(c)(8). However, the standard covers forklifts “when configured to hoist and 

lower (by means of a winch or hook) and horizontally move a suspended load.” Because of its 

inclusion within the scope of the crane standard, a forklift once modified in this manner would 

be subject to the stringent requirements for traveling with a load. 29 C.F.R. § 1926.1417(u) 

(“Traveling with a load”). And another requirement relates specifically to the hazards posed by 

load swing. See 29 C.F.R. § 1926.1417(v) (“Rotational speed of the equipment must be such 

that the load does not swing out beyond the radius at which it can be controlled.”). These 

requirements establish that there are known hazards associated with modifying a forklift in the 

manner at issue here.4 

In these circumstances, I would conclude that the Secretary has shown that the forklift 

modification affected its safe operation. And there is no dispute that Peacock did not obtain the 

forklift manufacturer’s approval of the modification prior to operating the forklift. Accordingly, 

I would affirm Item 5. 

 

/s/ 

Dated: April 27, 2017 Cynthia L. Attwood 

Commissioner 

 

4

 I disagree with my colleague’s suggestion that the crane standard may be more specifically 

applicable and thus preempts the forklift modification provision. Apart from the fact that 

preemption is an affirmative defense that was not raised by Peacock, see Spirit Aerosystems, Inc., 

25 BNA OSHC 1093, 1097 n.7 (No. 10-1697, 2014) (“Under Commission precedent, 

preemption by a more specifically applicable standard is an affirmative defense which the 

respondent must raise in its answer.”), the crane standard does not apply to the process of 

modifying a forklift. The provisions I reference in the crane standard are reflective of the fact 

that there are hazards associated with traveling with a suspended load, but those provisions do 

not apply until a machine is a crane within the meaning of that standard. See 29 C.F.R. 

§ 1926.1400. In situations where the cited standard requires the forklift manufacturer’s approval 

of the modification, that approval is required as a precondition to the forklift’s modification—

that is (as in this case), before it is used as a crane. 
Some personal identifiers have been redacted for privacy purposes.

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

 OSHRC DOCKET NO. 11-2780 

Appearances: 

Grace Kim, Esq. and Natalie Nardecchia, Esq., Office of the Solicitor, U.S. Department of Labor, Los 

Angeles, California 

 For Complainant 

 James A. D’Ambrosio, Esq., Stark & D’Ambrosio, LLP, San Diego, California 

 For Respondent 

Before: Administrative Law Judge Patrick B. Augustine 

DECISION AND ORDER 

I. Procedural History 

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) 

conducted an inspection of a Peacock Engineering, Inc. (“Respondent”) worksite in Miramar,

California on May 20–24, 2011. As a result of the inspection, OSHA issued a Citation and 

Notification of Penalty (“Citation”) to Respondent alleging seven serious violations of the Act.1 

Respondent timely contested the Citation, and a trial was held on November 13–15, 2012 in San 

Diego, CA. Both parties filed post-trial briefs. 

 

1. Citation 1, Item 2 includes sub-items 2a and 2b, which explains the discrepancy between the parties’ Stipulation 

No. 23 and the Court’s count of the number of alleged violations. On the first day of trial, the parties were able to 

settle Citation 1, Item 2a, Item 2b, and Item 4. That agreement was read into the record and is discussed below in 

Section IV. 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

PEACOCK ENGINEERING, INC., 

 Respondent.
2 

II. Jurisdiction 

 The parties have stipulated that the Act applies and the Commission has jurisdiction over 

this proceeding pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c). (Jt. Ex. 1). Further, 

Respondent also stipulated that, at all times relevant to this matter, it was an employer engaged 

in a business affecting commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5). 

Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

III. Stipulations 

The parties submitted Joint Stipulations to the Court, which are set forth below: 

1. Jurisdiction over this action is conferred on the Court pursuant to Section 10(c) of the 

Occupational Safety and Health Act of 1980 (29 U.S.C. § 651 et seq.) (“Act”). 

2. Respondent and its employees are engaged in receiving, handling and otherwise working 

on and with goods and materials that are moving or have moved in interstate commerce 

within the meaning of the Act such that, by virtue of its activities, Respondent has at all 

times material been an “employer” engaged in a business affecting commerce within the 

meaning of the Act, § 3(5), 29 U.S.C. § 652(5). 

3. On or about May 6, 2011, Respondent was acting as a subcontractor at Miramar National 

Cemetery (“Site”) and was providing crypt installation services at the Site. 

4. The work method used by Respondent to install crypts at the Site included use of one 

SkyTrak 10054 rough terrain forklift, with a custom lifting accessory (“Forklift”), to 

move crypts from one location to another at the Site. 

5. The Forklift’s custom lifting accessory was designed by Respondent’s President, Larry 

Peacock. 

6. The work method used by Respondent to install crypts at the Site included use of one 

LBX Link-Belt 225 excavator, with a custom lifting accessory (“Excavator”), to move 

crypts to their final resting place at the Site. 

7. The Excavator’s custom lifting accessory was designed by Respondent’s President, Larry 

Peacock. 

8. The work method used by Respondent to install crypts at the Site involved one employee 

operating the Excavator to move the suspended burial crypt to its final resting place, with 

a second employee standing approximately two (2) feet from the suspended burial crypt 

to help maneuver the crypt into place with his hands. 
3 

9. The work method used by Respondent to move the suspended burial crypt did not involve 

the use of tag lines. 

10. On May 6, 2011, an accident occurred at the Site where an employee of Respondent, 

[redacted], suffered a thumb amputation injury (“Accident”). 

11. The Accident occurred when a wire rope sling that was being used to help move a 

suspended burial crypt slipped out of a groove of the burial crypt and amputated 

[redacted]’s left thumb. 

12. At the time of the accident, [redacted]’s hands were positioned above the wire rope sling 

suspending the burial crypt. 

13. The photograph attached [to the parties’ stipulations] as Exhibit A, and taken later on the 

same date of the Accident, is a true and accurate depiction of the burial crypt, wire rope 

sling, and Excavator involved in the Accident. 

14. Larry Peacock is, and all relevant times has been, Respondent’s President. 

15. Jonathan Olivares is, and at all relevant times has been, Respondent’s General Office 

Manager. 

16. [redacted] was an employee of Respondent and worked as a crypt installer at the Site. 

17. Tyler Felton was an employee of Respondent and worked as a foreman at the Site. 

18. At the time of the Accident, Mr. Felton was operating the Excavator.

19. At the time of the Accident, [redacted] was on the ground next to the suspended burial 

crypt, helping to maneuver the load into place with his hands. 

20. The Forklift was not marked to indicate its safe working load. 

21. Respondent did not obtain written approval from the Forklift manufacturer for the 

modifications to the Forklift and its custom lifting accessory. 

22. The Excavator was not marked to indicate its safe working load. 

23. Following an inspection of the Site by a Compliance Safety and Health Officer (CSHO) 

for the Occupational Safety and Health Administration, the Secretary issued one citation 

with six (6) serious items to Respondent on or about October 7, 2011 (“Citation”). 

24. The Citation attached hereto as Exhibit B is a true and correct copy of the Citation at 

issue in the present matter. 

25. The Citation gives Respondent adequate notice of the alleged violations. 

26. The Citation was timely issued to Respondent. 
4 

IV. Settled Citations 

On the first day of trial, the parties agreed to settle Citation 1, Items 2a and 2b, and Item 

4. (Tr. 14–15). Citation 1, Items 2a and 2b were grouped together for penalty purposes and 

alleged serious violations of 29 C.F.R. § 1926.54(d) and 29 C.F.R. § 1926.54(e), respectively. 

The parties agreed to re-classify these violations as other-than-serious and reduce the penalty 

from $1,800 to $900. Citation 1, Item 4 alleged a serious violation of 29 C.F.R. § 1926.301(d) 

with a proposed penalty of $1,800. The parties agreed to re-classify this violation as other-thanserious and reduce the penalty to $900. No other changes were made as a part of this agreement. 

(Tr. 15). 

V. Findings of Fact2

Respondent is a subcontractor that installs crypts at national cemeteries around the United 

States, including, as is relevant to the present matter, Miramar National Cemetery (“worksite”). 

(Jt. Ex. 1). Respondent was hired by a general contractor, KevCon, which was in charge of the 

worksite as a whole. (Tr. 449). KevCon, in turn, was hired by the Veteran’s Administration 

(“VA”), which manages the cemetery. (Tr. 449). Respondent employs between 10 and 12 

employees. (Tr. 440). At the time of the inspection, Respondent was working on two crypt 

installation projects—the project at Miramar National Cemetery and another project at Riverside 

National Cemetery. (Tr. 440). Since 1995, Respondent’s President, Larry Peacock, stated that 

the Respondent had installed approximately 400,000 crypts. (Tr. 438–40). At the Miramar 

worksite, Respondent had installed approximately 11,000 crypts. (Tr. 440). 

 In order to install 11,000 crypts, 1.5 to 2 acres of land was excavated in order to place the 

crypts below ground level. (Tr. 48, Ex. C-1, C-4). Once the area was cleared, Respondent used 

 

2. This section does not constitute the entirety of the Court’s Findings of Fact. The facts contained in this section 

apply generally to each of the citations discussed in Section VII, Conclusions of Law. To the extent that additional 

facts are needed to address a particular citation, such facts will be discussed in Section VII. 
5 

a series of uncapped, reinforced steel bars (“rebar”), which were pounded into the ground and 

connected by a chalk line, to ensure that the crypts were properly aligned in even rows. (Tr. 56). 

The crypts were delivered by a flatbed truck to the worksite by the crypt manufacturer, Universal 

Precast. (Tr. 48–49, 449). Upon delivery, an engineer from the VA would inspect each crypt for 

defects. (Tr. 449). If the crypt passed inspection, the VA engineer would mark it with a red dot; 

however, if it did not pass inspection, the crypt would be marked with a green dot. (Tr. 465–68). 

 Once the crypts had been delivered and inspected, Respondent moved the crypts that 

passed inspection from the delivery area to a staging area, where the crypts were placed much 

closer to their final resting place. (Tr. 49). Respondent used a rough terrain forklift, SkyTrak 

Model 10054, to move the crypts to the staging area. (Tr. 49, Ex. J-1, C-12). Respondent then 

used an excavator, LBX Link-Belt 225, to move the crypts from the staging area to the spot 

where they would finally be installed. (Tr. 56, Jt. Ex. 1). Both the excavator and the forklift 

were fitted with lifting devices, which were custom-designed by Mr. Peacock to lift, transport, 

and install the crypts. (Jt. Ex. 1). 

The crypts were manufactured with pre-cut grooves, which ran the length of both sides of 

the crypt and then angled upwards at the corners. (Tr. 463, Ex. C-3, C-5). When the crypts 

were lifted, the custom lifting devices were attached to the pre-cut grooves with two 7/16-inch 

wire slings—oriented in a basket hitch—which were attached to a spreader bar. (Ex. C-7, C-29). 

The primary difference between the forklift and the excavator was the manner in which the 

custom device was attached to the boom. The custom lifting device was attached to the boom of 

the excavator through a series of two shackles and a hook, which connected to a swiveling eye 

bolt that was attached to the spreader bar. (Ex. C-7). The custom device attached to the forklift 

had a similar series of connecting devices starting at the spreader bar; however, the manner in 

which it was attached to the boom was much different. (Ex. C-13). Whereas the lifting device 
6 

was attached to the excavator boom by attaching a shackle to a pre-existing anchorage point, 

Respondent connected to the forklift boom a U-shaped attachment that was composed of three 

metal plates that were welded together and held steady with two cotter pins. (Tr. 93, Ex. C-14). 

Respondent welded an eye bolt onto the outward facing metal plate, and the custom lifting 

device was connected to the forklift boom through the welded eye bolt. (Ex. C-14, C-15). 

 Each burial crypt weighs 8,472 pounds. (Tr. 58, Ex. C-28). Both the excavator and the 

forklift have plates affixed to them that indicate their load capacities at the time of manufacture. 

(Tr. 373, Ex. C-10, C-19). In the case of the excavator, a chart is provided to illustrate the 

maximum capacity based on certain variables, such as bucket size, arm length, load radius, and 

load height. (Ex. C-10). In the case of the forklift, the plate indicates a maximum capacity of 

10,000 pounds. (Ex. C-19). Neither of the custom accessories has been labeled to indicate their 

load capacities; rather, the only information regarding the capacity of the custom accessories is 

the Certex sling chart, which indicates the load capacity of the 7/16-inch slings used by 

Respondent when placed in specific configurations. (Ex. C-29). The parties dispute which 

configuration was being used—Respondent contends that the slings were oriented in a vertical 

basket, which has a load capacity of 3.9 tons per sling, whereas Complainant argues that the 

slings were oriented at an angle, which can reduce the load capacity to as little as 1.9 tons per 

sling. (Ex. C-29). As regards the sling configuration, the Court credits the testimony of 

Complainant’s expert and professional engineer, James Nelson, who testified that the orientation 

of the sling legs in Exhibit C-24 were at an angle relative to the horizontal point of engagement 

on the crypt. (Tr. 348–349). Mr. Nelson’s understanding is confirmed by the diagrams 

contained in the Certex sling chart, which show the orientation of the sling legs relative to the 

load. (Ex. C-29). This understanding also comports with the definition provided for “angle of 
7 

loading” provided in 29 C.F.R. § 1910.184(d).3 Mr. Nelson also credibly testified as to the 

impact the angled orientation of the slings would have on their tensile strength, which explains 

the reduction in load capacity at different angles.4

 (Tr. 351–52). The Court, however, is not as

convinced by Mr. Nelson’s assessment of the sling angle. Mr. Nelson attempted to guess at the 

angle of the slings based upon Exhibit C-24, which shows the slings attached to the crypt but not 

under full load. (Tr. 350).5 Mr. Nelson testified that the slings, not under full load, appeared to 

be at 30 degrees; however, he also testified that under a full load, it could be more than that. (Tr. 

349, Ex. C-24). Ultimately, Mr. Nelson testified that trade practice dictates that if the angle of 

the slings falls between two angles, it is proper to choose the lesser angle to determine load 

capacity. (Tr. 350). That said, Mr. Nelson’s assessment of the sling angle is not based upon 

actual measurement, nor on actual operating conditions. For the above stated reasons, the Court 

finds the testimony of Mr. Nelson, as it relates to the sling angle, should be accorded little 

weight. Accordingly, the Court finds that, at worst, the combined sling capacity is 3.8 tons 

(7,600 pounds); however, given Mr. Nelson’s testimony that the angle would be greater under 

full load, the combined capacity of the slings is likely greater. 

 Each of the crypts has to be aligned within a quarter-inch of the parallel chalk line and set 

next to one another in evenly spaced 8-foot increments. (Tr. 474–75, Ex. C-4, C-7). In order to 

achieve this, the final step in the installation process involves two employees—an employee to 

operate the excavator and another ground employee to guide the crypt. (Tr. 234). The excavator 

 

3. “Angle of loading is the inclination of a leg or branch of a sling measured from the horizontal or vertical plane as 

shown in Fig. N-184-5; provided that the angle of loading of five degrees or less from the vertical may be 

considered a vertical angle of loading. 29 C.F.R. § 1910.184(b). 

4. Respondent’s expert, Robert Harrell, who is a safety and health consultant but conceded he is not a professional 

engineer, testified that you only have a reduction in capacity “when you incline the two ends of a single sling in 

towards the center [of the load] and you get them off of vertical.” (Tr. 647). Further, Mr. Harrell stated that if you 

did not have a spreader bar and hooked the slings directly to the hook on the attachment, such an angle would 

impact the capacity of the slings. (Tr. 648). The Court fails to see a meaningful distinction—in either case the 

slings would be oriented at an angle, which, as testified to by Mr. Nelson, impacts the tensile strength of the sling. 

5. The accident occurred when the sling was under full load. While a latent defect in the crypt cement caused the 

sling’s anchor point on the corner to crumble, the crypt never crashed to the ground but was held above the ground 

in a suspended fashion. (Tr. 604). 
8 

operator affixes the sling legs to the pre-cut grooves on the crypt by hand, returns to the 

excavator, and swings the crypt into position for final placement. (Tr. 236, 239). As the crypt is 

being moved into position, the ground employee stands clear of the load. (Tr. 240–43). Once 

the crypt is in position, the excavator operator lowers the crypt to a height of 1–2 feet off of the 

ground. (Tr. 241). At this point, the ground employee stands approximately 2 feet away from 

the crypt and maneuvers it by hand in order to get the proper alignment, in some cases spinning 

it in order to achieve the proper orientation. (Tr. 241, Jt. Stip. No. 8). Once it is properly 

aligned, the excavator operator sets the crypt down on a patch of pea gravel, which allows for 

proper drainage and leveling of the crypt. (Tr. 235). Using a laser, Respondent ensures that the 

crypt is level and is at the proper elevation. (Tr. 450). If the crypt is not level, the excavator 

operator will lift the crypt out of position and allow the ground employee to add, spread, or 

remove pea gravel to achieve the proper elevation. (Tr. 247–48). This leveling process would 

be accomplished with a long-handled tool, such as a rake or shovel, which would obviate the 

need to physically reach under the crypt while it was suspended. (Tr. 248). If the leveling 

measurements were particularly off, then the excavator operator would move the crypt out of the 

way to allow the ground employee to place additional gravel in a hard to reach area. (Tr. 248). 

 On May 6, 2011, [redacted] was working as a ground person at the worksite while his 

foreman, Tyler Felton, was operating the excavator. During the process of orienting one of the 

crypts, one of the wire slings slipped from its pre-cut groove and amputated [redacted]’s thumb. 

(Jt. Ex. 1). Further investigation revealed that a latent defect in the cement caused the sling’s 

anchor point on the corner of the crypt to crumble, which, in turn, caused the sling to slip out of 

place. (Tr. 604). However, when the crypt failed, the sling slipped upward and tightened down 

on the upper portion of the crypt, which prevented it from falling to the ground. (Tr. 605). This 

incident was reported to Cal-OSHA, who referred the case to OSHA because the incident 
9 

occurred on federal property. (Tr. 45–46). An investigation was conducted on May 20–24, 2011 

by Compliance Safety and Health Officer (“CSHO”) Pete Mollenberndt. (Tr. 46). As a result of 

his inspection, CSHO Mollenberndt issued the Citation. 

VI. Controlling Case Law 

To establish a prima facie violation of Section 5(a)(2) of the Act, Complainant must 

prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; 

(2) the terms of the standard were violated; (3) one or more of the employees had access to the 

cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could 

have known, of the violative condition. Ormet Corporation, 14 BNA OSHC 2134 (No. 85-0531, 

1991). 

To establish a prima facie violation of Section 5(a)(1) of the Act, also known as the 

general duty clause, Complainant must prove by a preponderance of the evidence that: (1) a 

condition or activity in the workplace presented a hazard to employees; (2) the employer or its 

industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996). The evidence must also show 

that the employer knew or with the exercise of reasonable diligence, should have known of the 

hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204 (No. 03-1344, 2007). 

A violation is “serious” if there was a substantial probability that death or serious 

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

Complainant need not show that there was a substantial probability that an accident would 

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 
10

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993). 

VII. Conclusions of Law 

A. Citation 1, Item 1 

i. General Duty Clause

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The 

employer did not furnish employment and a place of employment which 

were free from recognized hazards that were causing or likely to cause 

death or serious physical harm to employees in that employees were 

exposed to amputation, struck by and crushed by hazard, while guiding a 

suspended load by hand. 

a) Miramar National Cemetery – On or about 06MAY11, an employee 

suffered an amputation injury when the burial crypt he was guiding by 

hand slipped in its wire rope basket hitch, the wire rope left grooves 

cut into the corner of the burial crypt, the employee’s hand was 

positioned above the basket hitch on the suspended load, the burial 

crypt slipped down approximately eight inches before the wire rope 

hitch caught it, the employees left hand was caught by the wire rope at 

his left thumb, amputating the thumb. 

Among other methods, feasible and acceptable methods to correct this 

hazard is to: 

(1) Follow the American Society of Mechanical Engineers (ASME B30.9-

1996, Slings) Safety Standard for Cranes, Derricks, Hoists, Hooks, 

Jacks, and Slings, Section 9-2.9: Operating Practices, which states: 

(h) Portions of the human body should be kept from between the sling 

and the load and from between the sling and the crane hook or hoist 

hook.

(i) Personnel should stand clear of the suspended load 

(r) The sling’s legs should contain or support the load so that the load 

remains under control 

(2) Follow 29 C.F.R. 1910.184(c)(6) Slings shall be securely attached to 

their loads. 
11

(3) Reject burial vaults with manufacturer flaws that can affect the 

stability of the suspended load. 

The cited standard provides: 

Each employer shall furnish to each of his employees employment and a 

place of employment which are free from recognized hazards that are 

causing or are likely to cause death or serious physical harm to his 

employees. 

29 U.S.C. § 654(a)(1). 

 This citation is directed at the work method described above, which Respondent employs 

to install the burial crypts in their final resting place. In particular, Complainant cited 

Respondent for exposing its employees to amputation, crushing, and struck-by injuries during the 

course of guiding a suspended crypt by hand. 

 First, the Court must determine whether the work method employed by Respondent 

presented a recognized hazard to its employees. According to Complainant’s expert, Mr. 

Nelson, there is no safe location to place one’s hands on a suspended load, which is one part of 

Respondent’s work method. This conclusion is based, in part, upon the American Society of 

Mechanical Engineers (ASME B30.9-1996, Slings) Safety Standard for Cable-Ways, Cranes, 

Derricks, Hoists, Hooks, Jacks, and Slings, which is a set of consensus standards governing the 

use of slings. (Ex. C-30). Although many of the specific provisions were discussed at trial, the 

three that are most pertinent to this discussion are subsections (h), (i), and (r), which are 

referenced above. (Ex. C-30). 

Complainant contends that the work method employed by Respondent is hazardous in 

light of Respondent’s failure to adhere to these standards. Specifically, Complainant argues that 

Respondent’s work practice is unsafe in light of the following: (1) Respondent uses a basket 

hitch sling configuration, which is prone to disengagement from the load because there is no 

positive contact between the load and lifting mechanism; (2) the purported insufficiency of the 
12

load capacity of the slings and custom lifting accessory increased the potential for 

disengagement; and (3) the use of hydraulic equipment, which Complainant’s expert testified is 

jumpy and erratic, increasing the likelihood of the crypt swinging unexpectedly. (Tr. 338–40). 

Respondent, on the other hand, argues that its extensive use of this equipment and 

method without incident shows the absence of a recognized hazard because its method for 

aligning crypts by hand requires that employees to keep their bodies and body parts out of 

specified “kill zones”, wherein the potential for injury is high. (Tr. 446, Ex. R-5). 

 The Court finds that working around suspended loads is a hazard that is recognized both 

by the industry engaged in hoisting materials and by Respondent specifically. See Kokosing, 17 

BNA OSHC at 1873 (voluntary industry codes may be used to demonstrate industry 

recognition). However, in light of; (i) the training provided by Respondent; (ii) the work 

methods Respondent employs; and (iii) the Complainant’s own recognition that every method of 

abatement identified in its Citation as being feasible to eliminate the hazard is being done by the 

Respondent, the Court finds that Respondent’s employees were not exposed to the hazard 

identified by Complainant. 

First, the Court would note that, with the exception of when the load is 1–2 feet off of the 

ground, Respondent’s employees stand clear of the suspended load. It is not clear to this Court 

that the ASME standard, which states that “[p]ersonnel should stand clear of the suspended 

load,” is absolute. The standard is couched in discretionary (should) rather than mandatory 

(shall) terms, and both experts stated that there are circumstances in which employees need to 

stand near a suspended load in order to guide it. (Tr. 317, 398, 603–604). Mr. Nelson, 

Complainant’s expert, testified that the nature and difficulty of certain work, such as handling Ibeams, allows for work on suspended loads. (Tr. 397–98). This understanding is confirmed by 

the standards found at 29 C.F.R. § 1926, Subpart CC, Cranes and Derricks in Construction, 
13

which allows for employees to stand within the fall zone when guiding a load. See 29 C.F.R. § 

1926.1425(b). Further, the Court would also note that subsections (h) and (i) of the ASME 

standards appear to be at odds with one another. If employees are always supposed to stand clear 

of suspended loads, then it would appear unnecessary to also require that they keep their hands 

and body parts from between the sling and the load. That is, unless, there are circumstances in 

which employees need to stand near the suspended load in order to guide it; in which case, the 

employee would need to be sure to avoid placing their hands and/or body parts in a position 

where there is a potential pinch point. Unfortunately for [redacted], the hazard associated with 

placing your hands between the sling and the load came to fruition; however, the Court finds that 

this was a product of his failure to follow work rules, not from the hazard associated with 

standing near suspended loads.6 

 Second, the Court is unconvinced by Complainant’s other assertions regarding the 

purported problems associated with Respondent’s use of a basket hitch configuration or its use of 

an excavator to hoist the crypts. The basket hitch configuration of the sling is clearly an 

acceptable method for hoisting as it is listed in both the Certex load capacity chart (Ex. C-29) as 

well as in 29 C.F.R. § 1910, Subpart N. See 29 C.F.R. § 1910.184 fig. N-184-4. Merely opining 

that such a configuration is prone to disengagement, without describing why Respondent’s use of 

that particular set-up was deficient—and in the face of OSHA standards that allow its use—is 

insufficient to establish a hazard. As noted above, the Court is also unpersuaded by Mr. 

Nelson’s calculation of the sling angle and, thus, his determination of the sling capacity. The 

 

6. By saying this, however, the Court does not find that Respondent has established the defense of unpreventable 

employee misconduct. In light of the conclusion reached later that the Complainant has not carried his burden to 

establish a prima facie case of a violation of the General Duty Clause, it is unnecessary for the Court to address that 

affirmative defense. 
14

Court’s conclusion is buttressed by the fact that Respondent has used this particular set-up 

thousands of times without an incident involving the actual ability of the slings to hold the load.7

 Finally, the Court does not find that the use of a hydraulic excavator imposed a unique 

hazard as posited by Mr. Nelson. Respondent’s expert, Mr. Harrell, credibly testified that, 

although hydraulic equipment used to present the problem of erratic movement, such concerns 

have been remedied through the advances in hydraulic technology. (Tr. 587–88). The Court is 

convinced in particular by Mr. Harrell’s experience operating and training the operation of such 

equipment, as well as his testimony regarding the use of hydraulic excavators to carry suspended 

loads in construction and underground work. (Tr. 557, 587). 

 The Court is also unconvinced that Respondent was aware of the hazard identified by 

Complainant. If the hazard addressed by this citation item is, as the proposed abatement 

suggests, the potential for amputation injuries as a result of the sling not being securely attached 

to the load, the Court finds that such problems were not attributable to the work method 

employed by Respondent. The injury suffered by [redacted], while unfortunate, was the product 

of a latent defect in the crypt that could not have been foreseen by Respondent. Each crypt was 

quality checked by a VA engineer prior to being transported to the staging area. Although, as 

Complainant points out, loads had slipped in the past, nobody testified that the lifting system 

failed; rather, this was a product of crypt defects, most of which were caught prior to being 

installed. (Tr. 468–69). Respondent accounted for this by training its employees to look at the 

crypt grooves prior to attaching the slings and to place their hands below the sling and out of the 

way of the pinch point.8 (Tr. 245, 469–70). Ultimately, the Court finds that Respondent used 

 

7. The Court is aware that the primary purpose of the Act is to prevent the first accident; however, as it regards the 

capacity of the slings to carry their intended load, the repeated use of this particular sling set-up is relevant to the 

question of whether the sling capacity was adequate. The incident involving [redacted] was the result of a faulty 

crypt and not the inability of the slings to carry the load. 

8. It is also worth noting that when [redacted] was injured, the sling slipped from the groove; however, it did not 

completely disengage and remained suspended by the lifting device. (Tr. 605). 
15

reasonable diligence to uncover and address the hazards at its worksite. See N & N Contractors, 

Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001). 

 As previously stated, the Court is reluctant to find exposure to a hazard existed when 

every means of abatement identified by the Complainant in his citation item was performed by 

the Respondent. Lastly, the means of abatement suggested by Complainant in this citation item 

(reproduced above) were all performed by Respondent: (1) personnel stood clear of the 

suspended load as it was being moved into its final position, and it was not until it was 1-2 feet 

above the ground that an employee, standing 2 feet away from the load, would align the load by 

hand; (2) Respondent trained its employees to keep body parts away from between the sling and 

the load, or “kill zones”; (3) the sling’s legs contained and supported the load so that it remained 

under control—only when the load itself crumbled due to a defect did the load slip, and even 

then the slings kept the crypt elevated; and (4) crypts with observable manufacturer flaws were 

rejected by either the VA or Respondent. Not only did Complainant fail to prove that 

Respondent’s measures were inadequate, he identified abatement measures that were, for the 

most part, already being implemented. 

At trial, fully aware that the Respondent had implemented all the methods of abatement 

suggested by the Complainant, the Complainant attempted to propose “new” alternative methods 

of abatement, such as tag lines, a rigid 15-foot long pole, or a template, which were not identified 

in the citation item.9 With respect to these “new” alternative methods of abatement, the Court 

notes that litigation is not a moving target that permits a party, in the face of strong 

countervailing evidence, to continually throw the proverbial dart until a theory of liability sticks. 

 

9. Mr. Nelson made a passing suggestion that Respondent could use a template, which would obviate the need to 

manipulate the crypts by hand; however, there was scant discussion of the feasibility of such a measure. See ACME 

Energy Svcs. dba Big Dog Drilling, 23 BNA OSHC 2121 (No. 08-0088, 2012) (“The Secretary has the burden of 

‘demonstrat[ing] both that the [proposed abatement] measures are capable of being put into effect and that they 

would be effective in materially reducing the incidence of the hazard.’” (quoting Beverly Enters., 19 BNA OSHC 

1161 (No. 91-3344, 2000))). 
16

Notwithstanding, Complainant still failed to prove that these “new” implements were feasible or 

an effective means to address the hazards associated with working on a suspended load. In 

addition to the problem of how tag lines or a rigid pole could be attached to the load in order to 

align it, the primary problem was one of precision. Complainant’s expert testified that using 

one’s hands would be a quicker way of accomplishing the task of alignment; however, he did not 

believe that a hands-on approach would be any more precise. (Tr. 473). The Court disagrees. 

Mr. Peacock testified that the crypts had to be placed precisely within a specified area of inches 

or the whole row of crypts could be crooked, thereby disrupting the precision required for the 

placement of thousands of crypts. (Tr. 450, 474–75). To that end, Mr. Peacock stated that it 

would be near impossible to make the sort of minute adjustments necessary when standing 15 

feet away from the crypt. (Tr. 479–80). Further, [redacted] stated that the use of a rigid pole 

would not be practical because the loads were simply “too heavy” to move with a pole. (Tr. 

287). Mr. Harrell also testified that the use of a rigid pole may result in a greater hazard. If a 

crypt abruptly shifted with the pole resting on it, this could result in the pole being jammed back 

into the body of the holder of the pole. (Tr. 607). Complainant failed to prove that Respondent’s 

measures were inadequate or that the measures it proposed were feasible and effective. 

The Court finds that Complainant failed to prove a violation of the general duty clause 

for the reasons stated above . Accordingly, Citation 1, Item 1 based upon an alleged violation of 

the general duty clause will be VACATED. 

ii. Training Violation10

On September 11, 2012, Complainant filed a Motion for Leave to Amend the Complaint 

and Citation, which was granted by the Court. Complainant requested leave to amend Citation 

 

10. Since the two alternative theories rest, in large part, on the same set of facts and conclusions, the Court 

incorporates by reference its findings of fact and conclusions of law from Section VII.A.i. 
17

1, Item 1 to plead in the alternative a violation of 29 C.F.R. § 1926.21(b)(2). The cited standard 

provides: 

The employer shall instruct each employee in the recognition and 

avoidance of unsafe conditions and the regulations applicable to his work 

environment to control or eliminate any hazards or other exposure to 

illness or injury. 

29 C.F.R. § 1926.21(b)(2). 

 The cited standard requires Complainant to prove that “the cited employer failed to 

provide the instructions that a reasonably prudent employer would have given in the same 

circumstances.” El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1424 (No. 90-1106, 

1993). “Thus, the obligation to train ‘is dependent upon the specific conditions [at the worksite], 

whether those conditions create a hazard, and whether the employer or its industry has 

recognized the hazard.’” Compass Environmental, Inc., 23 BNA OSHC 1132 (No. 06-1036, 

2010) (citing W. G. Fairfield Co., 19 BNA OSHC 1233 (No. 99-0344, 2000)). When the 

Respondent produces evidence of training, then the burden shifts to the Secretary to show that 

training was inadequate or that the employee otherwise was unable to recognize and avoid the 

hazards. N & N Contractors, Inc., 18 BNA OSHC 2121, 2126–27 (No. 96-0606, 2000).

 The Court finds that the standard applies; however, the Court does not find that the 

standard was violated. Respondent had a training program in place that addressed the specific 

hazards identified by Complainant. As noted above, Respondent’s program identified specific 

“kill zones” wherein employees could be stuck or crushed by suspended loads, as well as the 

specific locations where it was proper to place one’s hands or feet during the alignment of the 

crypts. Each of these instructions was specifically tailored to the concerns highlighted by 

Complainant in this citation item. This program was reiterated to its employees through initial 

training and tail gate meetings, wherein employees had to sign in and indicate that they were 

present and had received the information. (Tr. 274, 441–42, 495, Ex. R-4, R-5, R-6). 
18

 Complainant contends that Respondent’s training program was inadequate on two 

separate bases: (1) its employees were exposed to hazards when they were working in close 

proximity to suspended loads; and (2) [redacted] could not recall the specifics of his training, 

which indicates that Respondent’s training program was not sufficiently specific so as to be 

remembered. See Pressure Concrete, 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992) (“A 

reasonably prudent employer would attempt to give instructions that are understood and 

remembered by its employees, and would make at least some effort to assure that the employees 

did, in fact, understand the instructions.”). As to (1), the Court has already addressed how 

Respondent addressed the hazards associated with working on suspended loads in its discussion 

regarding the general duty clause and concluded that Respondent’s employees were not exposed 

to a hazard. With respect to (2), the Court finds that, although it is important to ensure that 

current employees both understand and remember the instructions given by their employer, by 

the time of trial, [redacted] had not worked for Respondent for almost a year-and-a-half. (Tr. 

226). It is understandable that he may not recall specifics about the training that he received or 

that which he provided as a foreman. That said, even though he was not able to recall specific 

terminology or instructions, he was able to generally recall certain prohibitions that were put in 

place by Respondent, such as not pulling on the cables, not getting between crypts, watching 

your feet, and the distance he was supposed to stay away from the suspended crypt. (Tr. 287–

89). The general principles enunciated by [redacted] reflect that Respondent provided adequate 

training to its employees. [redacted]’s inability to recall specific terminology, such as “kill 

zone”, or the particular discussions that were had at tailgate meetings or even his initial 

orientation is not indicative of faulty training; rather, it is to be expected considering that it had 

been over a year-and-a-half since he had worked for Respondent and, thus, he had no need to 

recall such terms or implement the training provided. 
19

 Based on the foregoing, the Court finds that Complainant failed to prove a violation of 

the general duty clause, or, in the alternative, a violation of 29 C.F.R. § 1926.21(b)(2). 

Accordingly, Citation 1, Item 1 will be VACATED.

B. Citation 1, Item 3 

 Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows: 

29 C.F.R. 1926.251(a)(4): Special custom design lifting accessories for 

material handling were not marked to indicate the safe working loads and 

were not proof tested prior to use to 125 percent of their rated load(s): 

a) Miramar National Cemetery: On or about 24MAY11, an LBX LinkBelt 225 Excavator, SN ECAJ8-3866, was equipped with un-tested 

and un-marked custom lifting accessory used to lift and transport 

concrete burial vaults weighing 8,472 pounds. 

b) Miramar National Cemetery – On or about 24MAY11, a SkyTrak 

10054 rough terrain fork lift, SN 0160003864, was equipped with untested and un-marked custom lifting accessory used to lift and 

transport concrete burial vaults weighing 8,472 pounds. 

 The cited standard provides: 

Special custom design grabs, hooks, clamps, or other lifting 

accessories, for such units as modular panels, prefabricated structures 

and similar materials, shall be marked to indicate the safe working 

loads and shall be proof-tested prior to use to 125 percent of their rated 

load. 

29 C.F.R. § 1926.251(a)(4). 

By its terms, the cited standard applies to custom design lifting accessories for material 

handling. Id. Mr. Peacock, president of Respondent, designed the custom lifting accessories that 

were attached to both the forklift and excavator. (Jt. Ex. 1). Thus, the standard applies. The 

Court also finds that the standard was violated. 

First, the standard requires that all special custom design lifting accessories “shall be 

marked to indicate the safe working loads . . . .” Id. Respondent does not dispute the fact that 

the lifting accessory designed by Mr. Peacock was not marked. Rather, Respondent contends 
20

that § 1926.251(a)(4) is “one of those standards in which there is no presumption a hazard exists 

when its terms are not met.” (Resp’t Br. at 26). In support of this argument, Respondent cites to 

Anoplate Corp., 12 BNA OSHC 1678 (80-4109, 1986), wherein the Commission held that 29 

C.F.R. § 1910.94(d)(9)(v) required the Secretary to prove a significant risk of harm. The 

Commission imposed such a burden on the Secretary because the requirement to wear eye 

protection was prefaced by the phrase “whenever there is a danger of splashing . . . .” 29 C.F.R. 

§ 1910.94(d)(9)(v). By using such a phrase in promulgating the regulation, the Secretary left it 

to the Commission to determine whether there was a significant risk of harm on a case-by-case 

basis. Anoplate, 12 BNA OSHC 1678. In other words, the standard in Anoplate did not presume 

a hazard when its terms were not met because the requirement to wear eye protection was 

conditioned by the presence of a splashing hazard. Id. The standard cited in this case, however, 

presumes that there is a significant risk of harm associated with the failure to mark equipment 

and proof test it to 125% of its rated load. There is no precedent condition that activates the 

requirement to tag and test custom lifting accessories, there is only a mandate that such actions 

shall be taken. Although Respondent is technically correct that the failure to mark the equipment 

does not render its use presumptively hazardous, the standard is intended to prevent the hazard of 

overloading equipment and accessories. Thus, with respect to the first requirement—marking 

the load capacity on custom lifting accessories—Respondent violated the standard. 

 Respondent also violated the second part of the standard. In addition to marking the safe 

capacity of the custom lifting accessories, Respondent is also required to proof test the 

accessories to 125 percent of their rated loads. Respondent’s failure to comply is two-fold: (1) It 

is unclear that Respondent was aware of what the rated load of the accessories were; and (2) 

Respondent failed to conduct a proof test up 125 percent of the accessories’ rated loads. 

According to the definitions found in 29 C.F.R. § 1910.184(b), which address the use of slings 
21

and material handling equipment in general industry, a proof test is “a nondestructive tension test 

performed by the sling manufacturer or an equivalent entity to verify construction and 

workmanship of a sling.” See Simpson, Gumpertz & Heger Inc., 15 BNA OSHC 1851 (No. 89-

1300, 1992) (reiterating the general principle that standards containing broad or undefined terms 

may be given meaning by reference to other standards). First, in order to conduct a proof test, 

Respondent must be aware of the rated load of the custom accessory. The only evidence 

introduced by Respondent that would indicate knowledge of the rated load was Mr. Peacock’s 

and Mr. Harrell’s testimony regarding the capacity of the slings to carry the load, which they 

estimated to be 7.8 tons. (Tr. 510–11, 598–99). This rating, however, does not take into account 

the angle of loading, which, as discussed above in Section V, reduces the load capacity of the 

slings. Nor, in the case of the forklift attachment, does it account for the use of an eye bolt that 

was welded onto the attachment instead of bolting it to the attachment using the threads. 

According to Mr. Nelson, the “most concerning feature of [the design of a load transferring 

member] is always the connection.” (Tr. 371). Mr. Nelson opined that there are many factors 

that have to be considered when evaluating the integrity of the weld, including geometry, 

configuration, and metallurgy of the weld. (Tr. 372). Neither Mr. Peacock nor Mr. Harrell was 

able to provide concrete information about these critical factors that would impact the load 

capacity of the custom attachment; Mr. Peacock could not even testify as to what the rated load 

capacity of the attachments was. (Tr. 508–509). Without knowledge of the rated capacity of the 

custom attachment, Respondent could not have performed a proof test of 125 percent of the rated 

load. 

Even if the Court were to assume that the rated load of the custom accessory was known, 

Respondent failed to conduct an adequate proof test of the accessory. Mr. Peacock testified that 

a test was performed on the equipment approximately one month prior to the beginning of the 
22

Miramar project. (Tr. 507). This test involved placing a crypt loaded with a couple of cubic 

yards of dirt, weighing roughly 3 tons, on top of another crypt. (Tr. 456). This means that the 

load carried by the attachment was roughly 14,000 pounds. (Ex. C-28). By Respondent’s own 

admission, however, this test was not performed for the purposes of testing the custom lifting 

attachment; rather, the test was performed to test the structural integrity of the crypt lids. (Tr. 

508). Mr. Peacock also testified that these tests were performed with the attachment provided by 

the manufacturer, which means that the devices that were actually used during the crypt 

installation process were not tested. (Tr. 533–34). Based on the foregoing, the Court finds that 

the terms of the standard were violated. 

The Court also finds that Respondent’s employees had access to the cited condition. 

[redacted] and other employees worked in close proximity to the suspended loads during the 

final installation process. The failure to proof test and mark the custom lifting accessories on the 

forklift and excavator exposed Respondent’s employees, including the ground person and 

equipment operator, to potential crushing and struck-by injuries, because employees could 

potentially misjudge the safe lifting capacity of the lifting devices and overload the equipment, 

which could lead to failure of the lifting device. 

Respondent also knew or could have known of the violative condition. Mr. Peacock, 

president of Respondent, was responsible for the design and creation of the custom lifting 

accessories on both the forklift and the excavator. Mr. Peacock also testified that he was aware 

that the custom devices were not marked to indicate their safe working loads. (Tr. 502). Finally, 

Mr. Peacock also testified that the test performed on the crypts was actually done with the 

attachment provided by the crypt manufacturer, which means that, even if the test was a 

legitimate means of determining 125% of the attachment’s rated capacity, the test was not 
23

performed with the equipment indicated in this citation item. Respondent was directly aware of 

violative condition.11 

The violation was also serious. CSHO Mollenberndt testified without dispute that, if an 

accident occurred, there was a substantial probability that death or serious physical harm could 

result if an accident occurred. (Tr. 126–27). As noted above, the custom lifting accessory could 

be overloaded and fail, which would expose employees to crushing injuries as well as the 

possibility of being struck by the suspended 8,472-pound crypt while working in the vicinity of 

the forklift or excavator. Accordingly, Citation 1, Item 3 will be AFFIRMED. 

Citation 1, Item 5 

Complainant alleged a serious violation of the Act in Citation 1, Item 5 as follows: 

29 C.F.R. 1926.602(c)(1)(ii): Modifications or additions which affect the 

capacity or safe operation of the equipment were made without the 

manufacturer’s written approval: 

a) Miramar National Cemetery – On or about 24MAY11, a SkyTrak 

10054 rough terrain forklift, SN 0160003864, removed the 

manufacturer forks, and added an employer crafted, custom attachment 

on the end of the boom without approval of the manufacturer. 

 The cited standard provides: 

No modifications or additions which affect the capacity or safe operation 

of the equipment shall be made without the manufacturer's written 

approval. If such modifications or changes are made, the capacity, 

operation, and maintenance instruction plates, tags, or decals shall be 

changed accordingly. In no case shall the original safety factor of the 

equipment be reduced 

29 C.F.R. § 1926.602(c)(1)(ii). 

 According to 29 C.F.R. § 1926.602(a), the rules contained therein apply to earthmoving 

equipment, such as “scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, 

 

11. Alternatively, the Court also finds that Respondent had constructive knowledge of the condition through its 

foreman, Tyler Felton. The custom lifting accessories on the forklift and excavator, which were operated by Mr. 

Felton, were in plain view and were repeatedly used to move crypts throughout the working day. The knowledge of 

Respondent’s foreman, Mr. Felton, is properly imputed to Respondent. Revoli Const. Co., 19 BNA OSHC 1682 

(No. 00-0315, 2001) (holding that actions and knowledge of supervisory personnel are generally imputed to their 

employers). 
24

graders, agricultural and industrial tractors, and similar equipment.” More specifically, 

subsection (c) applies to lifting and hauling equipment. See 29 C.F.R. 1926.602(c). The forklift 

clearly falls under the rubric of lifting and hauling equipment. Accordingly, the standard applies. 

 In order to prove that that the terms of the standard were violated, Complainant must 

establish: (1) there was an addition or modification to the forklift, (2) that affected the forklift’s 

capacity or safe operation, and (3) Respondent failed to procure the manufacturer’s written 

approval. See id. § 1926.602(c)(1)(ii). First, Respondent admitted that it did not receive the 

manufacturer’s approval to make modifications to the forklift. (Tr. 513). Second, the Court 

finds, at the very least, there was an addition to the forklift to the extent that Respondent created 

a custom lifting accessory that was connected to the boom by means of a custom attachment. 

(Ex. C-13, C-14). In other words, because the attachment itself was not made by the 

manufacturer, Respondent was required to craft a connection point to attach the custom lifting 

assembly to the boom of the forklift. Thus, the sole operative question for the resolution of this 

citation item is whether the capacity or the safe operation of the forklift was affected by the 

addition. The Complainant has the burden of proof to present credible objective and verifiable 

evidence that either the capacity or the safe operation of the forklift was affected in order for it to 

prevail. 

 Complainant contends that the standard was violated because the anchorage point of the 

forklift was altered, which resulted in the forklift lifting the crypts from above the load instead of 

from below it. (Tr. 126, 160). Additionally, Complainant’s expert, Mr. Nelson, was most 

concerned about the stability of the weld, which was main point of connection between the 

custom lifting device and the boom of the forklift. (Tr. 371–72, 431). Respondent argues that 

the equipment never failed and that the removal of the fork attachment to the forklift actually 
25

increased its capacity from 10,000 pounds to 29,805 pounds.12 Respondent’s expert testified that 

the use of a custom attachment did not alter the capacity of the forklift itself, nor did the 

attachment render the use of the forklift unsafe as evidenced by the thousands of times it had 

been used prior to the inspection without incident. (Tr. 583–86).

 First, the Court does not find that the removal of the forks changed the capacity of the 

forklift from 10,000 pounds to 29,805 pounds as contended by the Respondent. The terms 

“Maximum Capacity” and “Maximum Weight Without Attachments” that are used in Exhibit C19 should be given their common sense meaning. As such, the Court finds that the both terms do 

not refer to the same thing, i.e., different load carrying maximums; rather, the former refers to 

the forklift’s capacity to lift and the latter refers to how much the forklift weighs without 

anything attached to it. According to Exhibit C-19, the maximum capacity for the forklift was 

10,000 pounds as designed by the manufacturer. (Tr. 373). Thus, any changes made to the 

forklift that altered its capacity needed to be approved by the manufacturer. 

It is interesting to note, however, that neither party discussed the asterisk on the 

manufacturer’s plate, which states “Refer to load capacity chart for truck with attachment and 

individual load ratings stamped on forks, if equipped. Use lowest capacity of all ratings.” (Ex. 

C-19). What this suggests is that the capacity of the forklift is dependent upon the attachments 

used and, as noted by Mr. Harrell, the extension of the telescoping lift, but, in any case, the 

capacity of the machine maxes out at 10,000 pounds. (Tr. 580, 582). Complainant introduced 

the load capacity chart for the excavator, which takes into account different attachments and the 

extension of the boom at various lengths and heights; however, the chart specifically mentioned

on the forklift was not introduced as evidence, which deprives the Court of the opportunity to 

determine what the capacity of the forklift is when taking into account different variables like the 

 

12. The Court sincerely doubts that a manufacturer of lifting equipment would equip a machine with attachments 

that reduce the lifting capacity by close to two-thirds of its maximum. 
26

attachments used and extension of the boom.13 Further, the failure to introduce the load chart or 

operator’s manual for the forklift also deprives the Court of the ability to ascertain whether this 

particular machine is designed for overhead lifting. 

Ultimately, it is unclear that the load capacity of the forklift itself was affected by the 

custom attachment. Complainant’s expert focused almost entirely upon the design of the custom 

lifting attachment and the weld that connected the attachment to the boom. Specifically, he 

testified about the number of ways in which the weld could fail and the impact of dynamic, 

lateral loading which could cause the welded attachment to separate “at any given time.” (Tr. 

374, Compl’t Br. at 20). The problem, however, is that these concerns are all directed towards 

the load capacity of the custom attachment and weld, not the capacity of the forklift itself.14

 (Tr. 

371). As noted above, the operative question in this case is whether the load capacity of the 

forklift has been affected by virtue of the modification or addition. Merely because the structural 

integrity of the custom attachment is in question does not mean that the capacity of the forklift 

has been affected. Complainant’s witnesses opined that the capacity of the forklift could have

been affected by the addition of the custom attachment; however, Complainant was unable to 

show that it was, in fact, affected. 

The question of capacity, however, does not resolve the issue. The standard also states 

that modifications or additions that affect the safe operation of the vehicle must also be approved 

by the manufacturer. Complainant’s arguments with respect to the safe operation of the forklift 

are speculative at best. Mr. Nelson’s testimony was, for the most part, couched in hypotheticals 

about what could happen if the weld were to break in a certain way; however, none of those 

 

13. According to Mr. Harrell, the load chart for the forklift would be located inside the cab of the forklift next to 

where the operator sits and operates the equipment. 

14. The load capacity of the custom attachment was already addressed by Complainant in Citation 1, Item 3. It is a 

much different issue to address the actual lifting capacity or safe operation of the forklift to which the custom 

accessory was attached. In that regard, it is interesting to note that the forklift was cited for a violation of 29 C.F.R. 

§ 1926.602(c)(1)(ii), and the excavator was not even though both vehicles were equipped with custom attachments 

that may or may not have affected the capacity or safe operation of the vehicle. 
27

hypotheticals actually addressed identifiable deficiencies in the welded portion of the custom 

attachment. This is due to the fact that Mr. Nelson did not physically examine the attachment or 

weld, but instead based his opinion on pictures of the attachment and weld. The only concrete 

evidence introduced by Complainant that addressed the safe operation of the forklift was the 

video, which showed the crypt swaying as it was being hauled by the forklift. (Ex. C-12). Mr. 

Nelson testified that the swaying motion of the crypt imparted dynamic, lateral stress on the 

weld, which, if it failed, could strike employees in the vicinity of the load, including the operator 

of the forklift. (Tr. 374, Ex. C-12). Respondent’s expert, Mr. Harrell, on the other hand, noted 

that the forklift, although operating on uneven ground while hauling a dynamic load, was still 

able to remain stable with all wheels firmly on the ground. (Tr. 586). Though he could not 

testify as to the integrity of the welded attachment, Mr. Harrell also noted that the design of the 

rough terrain forklift accounts for uneven terrain and dynamic loads. (Tr. 586). Specifically, 

Mr. Harrell pointed to the front tires and outriggers, which serve to protect the operator from 

swinging loads. (Tr. 586–87). Although the Court appreciates Mr. Nelson’s concerns regarding 

the potential for a weld to fail, the same concerns could be expressed with respect to any welded 

attachment. Though the purpose of the Act is to prevent the first accident, the Court cannot 

disregard the fact that this same set-up has been used thousands of times without incident. Even 

the accident that precipitated the inspection at issue was not the product of Respondent’s faulty 

equipment; rather, it was the result of a poorly manufactured crypt, which was not an aspect that 

Respondent could control. The Court gives little weight to the testimony of Mr. Nelson on the 

issues of capacity or safe operation since his conclusions are either speculative or based on 

unexamined or untested assumptions about the integrity of the weld. This Court cannot permit 

the Complainant to meet his burden of proof with conclusions based on speculation. To do so 

would undermine the integrity of longstanding case law that places the burden on him to prove a 
28

violation of the Act. Complainant failed to present credible, objective, factual evidence that 

established the custom attachment affected the capacity of the forklift or rendered it unsafe to 

operate for the reasons stated above. Accordingly, Citation 1, Item 5 will be VACATED. 

C. Citation 1, Item 6 

Complainant alleged a serious violation of the Act in Citation 1, Item 6 as follows: 

29 C.F.R. 1926.701(b): All protruding reinforcing steel, onto and/or into 

which employees could fall or come against, was not guarded to eliminate 

the hazard of impalement: 

a) Miramar National Cemetery – On or about 20MAY11, steel 

reinforcing rods were not capped against impalement. 

b) Miramar National Cemetery – On or about 24MAY11, steel 

reinforcing rods were not capped against impalement. 

The cited standard provides: 

Reinforcing steel. All protruding reinforcing steel, onto and into which 

employees could fall, shall be guarded to eliminate the hazard of 

impalement. 

29 C.F.R. § 1926.701(b). 

 On the first day of CSHO Mollenberndt’s inspection of the worksite, he noticed several 

uncapped steel reinforcing rods that had been pounded into the ground to aid in the alignment of 

the burial crypts. (Tr. 59). On May 20, 2011, Respondent’s foreman, Tyler Felton, advised 

CSHO Mollenberndt that he knew the rods should be capped and that he would ensure that the 

rods would be capped in the future. (Tr. 67–68). When CSHO Mollenberndt arrived at the 

worksite a couple of days later on May 24, 2011, he observed that many of the rods remained 

uncapped. (Tr. 68). There were approximately 8–12 rods that stood 1–4 feet out of the ground, 

and, depending on the location of the crypts, located adjacent to or roughly 6 feet away from the 

crypts. (Tr. 60, Ex. C-4). At the time of the inspection, CSHO Mollenberndt observed 

employees working in close proximity to the uncapped rods, including some employees that 

were standing on top of the crypts. (Tr. 61, Ex. C-4). 
29

 Respondent contends that the cited standard is inapplicable and the citation should be 

vacated. Specifically, Respondent points to the scope and application paragraph of 29 C.F.R. § 

1926.700(a), which states: 

This subpart sets forth requirements to protect all construction employees from 

the hazards associated with concrete and masonry construction operations 

performed in workplaces covered under 29 CFR Part 1926. In addition to the 

requirements in Subpart Q, other relevant provisions in Parts 1910 and 1926 

apply to concrete and masonry construction operations. 

29 C.F.R. § 1926.700(a). Respondent admits to using “protruding reinforcing steel”, as that term 

is used in § 1926.701(b); however, Respondent argues that the standard does not apply because 

Respondent was not engaged in concrete or masonry operations. Complainant contends that 

because Respondent was using reinforced steel rods that protruded from the ground, the standard 

applies. Respondent may not have been performing concrete or masonry operations per se; 

however, it was utilizing tools/implements—rebar—associated with that specific industry. See 

Kunz Constr. Co., 15 BNA OSHC 1343 (No. 90-2995-S, 1991) (ALJ Schwartz) (finding a 

violation of 1926.701(b) when uncapped, reinforcing steel rods were used to “stake out the drive 

to the company trailer”). It is undisputed that the reinforcing steel rods were uncapped and 

protruding out of the ground. Thus, the standard applies and was violated. 

One of the hazards associated with the use of uncapped, reinforced steel rods is the 

potential for impalement, which was present at Respondent’s worksite. CSHO Mollenberndt 

observed an employee working on top of the crypts, approximately 5 feet off of the ground, near 

an uncapped steel rod. (Tr. 61, Ex. C-4). Additionally, other employees of Respondent were 

exposed to the impalement hazard when they worked on the ground in close proximity to 

uncapped rods. (Tr. 65–67). Accordingly, the Court finds that Respondent’s employees were 

exposed to the hazard. 
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Finally, Respondent knew or should have known about the presence of the violative 

condition. As noted above, Respondent’s foreman, Mr. Felton, indicated that he was both aware 

of the requirement and that he would resolve the problem of the missing caps, which were

identified by CSHO Mollenberndt on the first day of his inspection. When CSHO Mollenberndt 

returned a few days later, he observed more uncapped steel rods. Not only was the condition 

open and obvious, but Respondent’s foreman was directly aware of the uncapped rods and 

allowed the condition to exist. It is well-settled that the actual or constructive knowledge of a 

foreman can be imputed to his employer. Rawson Contractors Inc., 20 BNA OSHC 1078 (No. 

99-0018, 2003); A.P. O'Horo Co., 14 BNA OSHC 2004 (No. 85-369, 1991). Mr. Felton held 

himself out as a representative of Respondent, and, therefore, his knowledge of the uncapped 

reinforced steel is properly imputed to Respondent. 

The violation was also serious. Sufficient testimony was presented by Complainant to 

establish that falling onto reinforced steel rods creates an impalement hazard, which could lead 

to serious injuries and even death. Based on the foregoing, the Court finds that Complainant 

established a violation of the standard. Accordingly, Citation 1, Item 6 will be AFFIRMED. 

VIII. PENALTY 

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. Gravity is the primary consideration and is determined by 

the number of employees exposed, the duration of the exposure, the precautions taken against 

injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 

(No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo

penalty determinations and have full discretion to assess penalties based on the facts of each case 
31

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); 

Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). 

CSHO Mollenbernt provided credible testimony to support his characterization of the 

size of Respondent’s business, the gravity of the violation, good faith, and prior history of 

violations. With respect to Citation 1, Item 3, the Court finds that the gravity associated with 

using an improperly tested, custom lifting device is high—if the device is not sufficiently tested 

and marked, it is possible for an employee to overload the equipment and expose himself and 

other employees to the potential for crushing injuries from the 8,000-plus pound crypts. 

Accordingly, the Court finds that a penalty of $3,000 is appropriate. With respect to Citation 1, 

Item 6, the Court finds that CSHO Mollenberndt overstated the gravity of the violation. For the 

most part, employees were exposed to the hazard while walking on the ground, which reduced 

the likelihood that an employee would trip and fall onto the protruding rebar. Further, when 

standing on top of the crypts, most of the rebar was approximately 6 feet away, which further 

reduced the likelihood of an impalement injury. In light of these facts, the Court finds that a 

penalty of $2,000 is appropriate. 

ORDER 

 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. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1(as originally plead and as an alternative amended citation) and its 

associated penalty are hereby VACATED. 

2. Citation 1, Items 2(a) and 2(b) are AFFIRMED as other-than-serious and a penalty of 

$900 is ASSESSED. 

3. Citation 1, Item 3 is AFFIRMED and a penalty of $3000 is ASSESSED. 
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4. Citation 1, Item 4 is AFFIRMED as other-than-serious and a penalty of $900 is 

ASSESSED. 

5. Citation 1, Item 5 and its associated penalty are hereby VACATED. 

6. Citation 1, Item 6 is AFFIRMED and a penalty of $2000 is ASSESSED. 

Date: April 17, 2013 /s/ 

Denver, Colorado Patrick B. Augustine 

 Judge, OSHRC