United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building – Room 2R90, 100 Alabama Street SW 

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket Nos.

Peacock Timber Company, Inc., 14-0497 & 14-0498

 Respondent.

Appearances: 

 

Jonathan Hoffmeister, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia 

For the Secretary 

 Grover T. Peacock, President and Brenda Peacock, Vice President, pro se, Peacock Timber Co., Inc., Troy, 

Alabama 

 For the Respondent 

BEFORE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

This proceeding is before the Occupational Safety and Health Review Commission 

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

(2014) (the Act). Peacock Timber Company, Inc., (hereinafter Peacock) is a timber mill located 

in Troy, Alabama. On February 25, 2014, Occupational Safety and Health Administration 

Compliance Officer (CSHO) Heather Sanders conducted inspection No. 960627 (Docket No. 14-

0498) of Peacock at its mill at 68 County Road 7757 in Troy, Alabama. On March 10 – 19, 

2014, CSHO Amick conducted a second inspection, No. 963197 (Docket No. 14-0497), of that 

same worksite. 

Based upon CSHO Sander’s inspection, the Secretary of Labor, on March 24, 2014, 

issued two Citations and Notification of Penalty to Peacock. Citation 1 alleged two serious 

violations. Item 1, Citation 1 alleged violations of § 5(a)(1) of the Act or the general duty clause, 

for failure to provide seat belts on powered industrial trucks. Item 2, Citation 1 alleges a 
2 

violation of the standard at 29 C.F.R. § 1910.147(c)(1) for failure to develop procedures for the 

control of hazardous energy. The Secretary later amended Item 2, Citation 1 to allege a violation 

of 29 C.F.R. § 1910.147(c)(4)(I), in the alternative. The Secretary proposes a total penalty of 

$4,000.00 for Citation 1. Other than serious Citation 2 alleges violations of the standards at 29 

C.F.R. § 1910.134(c)(2)(i) for failure to provide information from Appendix D of the respiratory 

protection standard to employees using dust masks and 29 C.F.R. § 1910.151(b) for failure to 

have an employee trained in first aide onsite. The Secretary does not propose a penalty for 

Citation 2. 

Based upon CSHO Amick’s inspection, the Secretary of Labor, on March 24, 2014, 

issued a Citation and Notification of Penalty with one item to Peacock alleging a serious 

violation of 29 C.F.R. § 1910.95(c)(1) for failure to have hearing conservation program for its 

employees exposed to noise in excess of the action level. The Secretary proposes a penalty of 

$2,800.00 for the Citation. 

Peacock timely contested all of the citations. Prior to the hearing, the Secretary 

withdrew Item 1, Citation 1 for inspection No. 960627 alleging a violation of § 5(a)(1) of the 

Act. Therefore, Item 2, Citation 1 and Items 1 and 2, Citation 2 in Docket No. 14-0498 and 

Item 1, Citation 1 in Docket No. 14-0497 are at issue. 

 I held a hearing in this matter on January 14, 2015 in Troy, Alabama. The parties were 

given the opportunity to file post-hearing briefs by February 27, 2015. Only the Secretary filed a 

post-hearing brief.1

For the reasons discussed below, Item 2, Citation 1, Docket No. 14-0498, is affirmed as a 

serious violation and a penalty of $1,000.00 is assessed; Item 1, Citation 2, Docket No. 14-0498 

is affirmed as an other than serious violation with no penalty; Item 2, Citation 2, Docket No. 14-

0498 is vacated; and Item 1, Citation 1, Docket No. 14-0497 is affirmed and a penalty of 

$2,000.00 is assessed. 

 

1

 Peacock informed this office via email it did not intend to file a brief. It did reiterate its defenses in that email. 

The Court will consider all arguments made by Peacock in pretrial filings and at the hearing. 
3 

Jurisdiction 

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

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

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

commerce within the meaning of § 3(5) of the Act, (Tr. 11). 

Background 

Peacock’s facility is a timber mill established by Grover Thomas (“Tommy”) Peacock2

approximately six years ago. Tommy Peacock and his wife, Brenda Peacock, are co-owners of 

the timber mill. Also employed as the shop manager for the company is Clinton Grover 

(“Clint”) Peacock - Tommy and Brenda Peacock’s son. The company has approximately seven 

full-time employees (Tr. 211). The company also employs Jesse “Lane” Peacock, Tommy 

Peacock’s brother, on a part-time basis as the safety manager. Tommy, Clint, and Lane Peacock, 

along with five of the company’s employees, testified at the hearing; Brenda Peacock 

represented the company at the hearing. 

 On February 25, 2014, CSHO Sanders initiated an inspection of Peacock’s facility at the 

Troy, Alabama mill (Tr. 37). CSHO Sanders testified her supervisor assigned her the inspection 

after the OSHA Mobile Area Office received a complaint about alleged unsafe conditions related 

to forklifts and unguarded saws at the mill (Tr. 37). CSHO Sanders testified the agency has a 

National Emphasis Program on amputations and the Mobile Area Office has a Local Emphasis 

Program on industrial trucks, both of which mandate an onsite inspection upon receipt of a 

complaint involving related conditions (Tr. 38). 

 Upon her arrival at the Peacock timber mill, CSHO Sanders met with Tommy Peacock, 

who identified himself to her as the boss (Tr. 40). She explained she needed to check on the 

complaint items, but also she would be addressing anything that “jumped out at her” or what she 

described in her testimony as “plain view hazards.” (Tr. 83). During her inspection, CSHO 

Sanders observed several large pieces of mill equipment including a debarker, head rig, and 

edger (Tr. 45; Exhs. C-1 and C-2). She asked Tommy Peacock about the use of the machines, 

 

2

 Several witnesses were members of the Peacock family. First names will be used throughout to designate which 

individual provided which testimony. 
4 

including the maintenance procedures. At that time, Tommy Peacock told CSHO Sanders 

employees, including himself, perform maintenance on the machines, but the company had no 

written program to address locking out or tagging out the equipment during those operations (Tr. 

43). Tommy Peacock informed CSHO Sanders the company utilized lock out procedures when 

performing maintenance operations, that employees were trained on those procedures, but that he 

did not regularly observe employees while performing those procedures (Tr. 43-44). 

 During her inspection, CSHO Sanders also observed employees using dust masks (Tr. 

71). Tommy Peacock admitted to CSHO Sanders the company did not provide employees with 

training on the use of dust masks, but did make them available for employee use (Tr. 70-72). 

CSHO Sanders spoke with two employees she observed wearing the masks. Both informed her 

they had not received any training on the use of dust masks (Tr. 70-72). The dust masks were 

available in the restroom in a box containing instructions printed on the outside (Tr. 229, 282). 

CSHO Sanders observed the environment around the saws and other mill equipment was dusty 

(Tr. 72). The record does not contain any evidence of air contaminant exposure levels. 

 In her discussions with Tommy Peacock during her walk around inspection, CSHO 

Sanders asked about the availability of medical treatment in the event of an injury (Tr. 74). 

Tommy Peacock informed CSHO Sanders the nearest hospital was 6 to 8 miles away from the 

mill in Troy (Tr. 74). He also told CSHO Sanders he had been previously trained in first aid and 

CPR four years earlier (Tr. 75). While traveling to and from the inspection site, CSHO Sanders 

noted it took 15 to 20 minutes to travel from the general vicinity of the hospital in Troy to the 

mill (Tr. 76). The record does not contain any other evidence of the distance or time from the 

nearest hospital to the mill. 

 CSHO Sanders testified the worksite was loud, as she would have expected at a timber 

mill (Tr. 80). She testified she screened for noise levels using a noise monitor (Tr. 80). 

According to her testimony, she found noise levels to be over 90 decibels, requiring her to make 

a referral for noise monitoring, which she did (Tr. 80-81). Tommy Peacock testified he observed 

the noise monitor used by CSHO Sanders never registered over 90 decibels. He also testified 

CSHO Sanders told him her monitor was “no good” and that she was going to have better 

equipment sent to the worksite for monitoring. 
5 

 Upon her return to her office, CSHO Sanders made a referral to her supervisor for noise 

monitoring at Peacock’s worksite. That inspection was assigned to CSHO Amick on March 11, 

2014 (Tr. 115). CSHO Amick has a bachelor’s degree in environmental health, was trained in 

noise monitoring procedures, and, at the time he conducted his inspection of Peacock’s worksite, 

had performed noise monitoring on approximately 25% of the 150 inspections he performed (Tr. 

109-12). CSHO Amick took with him to Peacock five Quest Noise Pro dosimeters (Tr. 116-17). 

Prior to going to Peacock’s worksite, CSHO Amick testified he prepared the dosimeters by 

ensuring each had fresh batteries and pre-calibrating them (Tr. 116-17). This pre-calibration is 

performed using a calibration can (Tr. 118). CSHO Amick testified the microphone of the 

dosimeter is placed in the can, which produces a known decibel level of noise (Tr. 118). If the 

dosimeter reads at the same level as the known decibel level produced by the can, it is considered 

in calibration (Tr. 118). CSHO Amick found all the dosimeters to be operating properly (Tr. 

119-20). 

 CSHO Amick first went to Peacock’s shop several miles from the mill. There he met 

with Clint Peacock. Clint Peacock testified CSHO Amick gave a lengthy explanation of 

inspection and noise monitoring procedures and then made comments suggesting he enjoyed 

destroying businesses (Tr. 277). Clint Peacock also testified he asked CSHO Amick for some of 

the information CSHO Amick was providing about the requirements for a lock out/tag out 

program and a hearing conservation program in writing, but that CSHO Amick never provided 

him with such information (Tr. 272-73). 

 After this meeting, CSHO Amick proceeded to the mill to conduct noise monitoring. He 

placed a dosimeter on two of the employees at the worksite (Tr. 123). He placed one on himself 

(Tr. 126). The large part of the dosimeter was placed on the employee’s hip and the microphone 

was placed on the employee’s shoulder (Tr. 105). CSHO Amick testified he observed the 

employees during the entire sampling period which consisted of the employees’ 8-hour shift (Tr. 

127-28, 132). One employee was working near the edger and the head saw throughout the shift 

(Tr. 140; Exhs. C-3 and C-4). CSHO Amick testified the employees told him the work they were 

doing was typical of their daily activities (Tr. 129). Once the shift was over, CSHO Amick 

removed the dosimeters. He then attempted to hold a closing conference but was informed 
6 

Tommy Peacock was unable to attend. 

 Upon his return to his office, CSHO Amick post-calibrated the dosimeters using the same 

methodology as for his pre-calibration (Tr. 135-36, 163). After post-calibrating the dosimeters, 

CSHO Amick downloaded the information recorded by the dosimeters onto his computer (Tr. 

137). According to CSHO Amick, once the information is downloaded, the computer generates 

a report containing various information, including the monitoring results (Tr. 137). The reports 

for the two employees monitored by CSHO Amick are contained in Exhibits C-5 and C-6 (Tr. 

142-44). These reports show exposure of one employee to a time-weighted-average (TWA) of 

96.4 decibels (Exh. C-5) and the other employee to a TWA of 92.1 decibels (Exh. C-6). 

 Based on her observations at the mill, CSHO Sanders recommended four citations be 

issued – three of which are at issue. She recommended a violation of 29 C.F.R. § 1910.147(c)(1) 

be issued based on Peacock’s lack of written procedures for locking and tagging out equipment 

during maintenance. She also recommended other than serious violations of 29 C.F.R. §§ 

1910.134(c)(2)(i) and 1910.151(b) be issued based on Peacock’s failure to provide information 

to employees voluntarily using dust masks and for failure to have an individual trained in first 

aide at the worksite, respectively. With regard to the alleged violation of 29 C.F.R. § 

1910.147(c)(1), Peacock contends it was not required to have procedures in writing, as long as 

procedures were being followed. Peacock further contends it provided employees with all the 

information necessary for the proper use of dust masks. Finally, Peacock contends the hospital is 

closer than CSHO Sanders represented and that Tommy Peacock is trained in first aid and is at 

the worksite daily. 

 Based upon his monitoring results, CSHO Amick recommended a serious citation 

alleging a violation of 29 C.F.R. § 1910.95(c)(1) be issued. In his prior discussions with Clint 

Peacock, CSHO Amick had determined Peacock had no hearing conservation program in place 

(Tr. 164-69). Clint Peacock had admitted to CSHO Amick the company had not performed any 

audiograms on its employees (Tr. 168-69). Peacock does not deny it had no program in place 

and had not performed audiograms, but denied knowing employees were overexposed to noise 

(Tr. 263-64). 
7 

LEGAL ANALYSIS 

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

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

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

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

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

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

Docket No. 14-0498 

Item 2, Citation 1: Alleged Violation of 29 C.F.R. § 1910.147(c)(4)(i) 

 Item 2 of Citation 1 alleges a violation of 29 C.F.R. § 1910.147(c)(1) or, in the 

alternative, § 1910.147(c)(4)(i).3 The standard at 29 C.F.R. § 1910.147(c)(1) requires an 

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

periodic inspection” for employees performing work covered by the standard. The standard at 

29 C.F.R. § 1910.147(c)(4)(i) requires such procedures be “developed, documented and 

utilized.” 

 Item 2 alleges: 

[T]he employer exposed employees to potential hazardous energies (including 

480 VAC 3-phase electrical and 100 PSI pneumatic) in that employees were 

allowed to perform servicing and maintenance on the debarker and head rig 

without having a written lock-out tag-out program or having machine specific 

lock-out tag-out procedures for equipment with more than one energy source. 

The Secretary contends employees were engaged in service and maintenance operations on the 

debarker and the head rig, including greasing, lubricating, and changing out blades, for which 

there were no written procedures. The Secretary further contends the program Peacock did have 

in place did not satisfy the training or inspection requirements of § 1910.147(c)(1). Peacock 

does not deny it had no written procedures for locking and tagging out its equipment but 

contends written procedures were not required or necessary to ensure employee safety and that it 

 

3

 The Secretary’s motion to amend Item 2 of Citation 1 was granted on August 11, 2014. The Secretary sought to 

amend only the standard cited. The description of the alleged violation remains as in the original. 
8 

had a system in place that provided adequate employee protection.

Applicability of the Standard 

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

machines and equipment in which the unexpected energization or startup of the machines or 

equipment, or release of stored energy could cause injury to employees...” 29 C.F.R. § 

1910.147(a)(i).4

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

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

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

These activities include lubrication, cleaning or unjamming of machines or 

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

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

hazardous energy.

Tommy Peacock testified employees grease the debarker two times per week, change blades on 

the head rig every few months, lubricate the head rig once per week, and oil it daily (Tr. 219, 

243, 245-46). These activities fall within the definition of servicing and maintenance as defined 

in the standard.

The Court also finds employees engaged in these activities could be injured by the 

unexpected energization or start up of the equipment. While employees are greasing the 

debarker, unexpected energization could result in an employee being pulled into moving chains 

or shafts (Tr. 52-53). As Tommy Peacock’s testimony indicates, the employee servicing the 

 

4

The regulation contains an exception when all of the following are met: 

(1) The machine or equipment has no potential for stored or residual energy or reaccumulation of 

stored energy after shut down which could endanger employees; (2) the machine or equipment has 

a single energy source which can be readily identified and isolated; (3) the isolation and locking 

out of that energy source will completely deenergize and deactivate the machine or equipment; (4) 

the machine or equipment is isolated from that energy source and locked out during servicing or 

maintenance; (5) a single lockout device will achieve a locked-out condition; (6) the lockout 

device is under the exclusive control of the authorized employee performing the servicing or 

maintenance; (7) the servicing or maintenance does not create hazards for other employees; and 

(8) the employer, in utilizing this exception, has had no accidents involving the unexpected 

activation or reenergization of the machine or equipment during servicing or maintenance. 

Peacock stipulated in the joint prehearing and at the hearing after some discussion the debarker and head rig have 

two energy sources (Tr. 15). Tommy Peacock’s testimony also establishes two sources of energy for both pieces of 

equipment (Tr. 241-49). The exception is not applicable. 
9 

carriage on the head rig could be injured should the valve for the pneumatic power be bumped or 

turned on (Tr. 214-15, 251-452, 254-55). Similarly, his testimony establishes the portion of the 

debarker that removes the bark could fall on an employee during servicing (Tr. 218, 255). The 

Secretary has established the standard applies to the cited conditions.

Failure to Comply with the Terms of the Standard 

 The Secretary contends Peacock did not meet the training or inspection requirements of 

the standard and did not have documentation of any lock out procedures for servicing of the head 

rig and debarker (Tr. 50, 54, 216). Peacock admits it did not train certain employees, did not 

perform regular inspections, and had no written procedures for lock out of equipment (Tr. 220, 

244, 253, 261). 

 The requirements for training under § 1910.147 are found at § 1910.147(c)(7). 

Employees performing lock out are designated in the standard as “authorized employees.” 29 

C.F.R. § 1910.147(b). The standard requires those employees receive training on “recognition of 

applicable hazardous energy sources, the type and magnitude of the energy available in the 

workplace, and the methods and means necessary for energy isolation and control.” 29 C.F.R. § 

1910.147(c)(7)(i)(B). The standard requires “affected employees” be “instructed in the purpose 

and use of the energy control procedure.” 29 C.F.R. § 1910.147(c)(7)(i)(B). An affected 

employee is one whose job requires him to operate equipment on which servicing or 

maintenance is performed or in such an area. 29 C.F.R. § 1910.147(b). It also requires 

[a]ll other employees, whose work operations are or may be in an area where 

energy control procedures may be utilized, shall be instructed about the 

procedure, and about the prohibition relating to attempts to restart or reenergize 

machines or equipment which are lock out or tagged out. 

29 C.F.R. § 1910.147(c)(7)(i)(C). 

Peacock admits only employees who actually performed lock out, or the authorized 

employees, were instructed on its lock out procedures. That training did not include an 

explanation of the energy sources (Tr. 244). It included a short, one-time demonstration. 

Employees were then watched periodically. Tommy Peacock testified: 

A: I just show him. Lock it out. Take the – and put it in there, lock it and put the key in 

your pocket and keep it there until you get through with it. 
10

Q: And is that it? Then you’re done training them? 

A: Uh-huh. 

Q: Okay. And you didn’t do like periodic retraining, did you? 

A: No. Once I train him, I figure he ought to know then. 

(Tr. 257). 

Other employees who work with the debarker and head rig, but do not perform 

maintenance, received no lock out training until after the inspection (Tr. 261-62). Employees 

working in the lumber yard received no lock out training (Tr. 260). Although these lumber yard 

employees do not enter the area in which equipment is being serviced as part of their normal 

duties, there is no work rule prohibiting them from doing so (Tr. 261). The Court finds 

Peacock’s lock out program was deficient for failure to meet the training requirements of § 

1910.147. 

The standard at 29 C.F.R. § 1910.147(c)(6) requires annual inspections of energy control 

procedures which are to include, among other things, a review between the inspector and the 

authorized employee. Peacock admits no such procedures were in place at the mill (Tr. 257-60). 

Rather, Tommy Peacock testified he spends his days at the mill watching employees to ensure 

they are operating safely (Tr. 258). He admitted he does so while performing other duties and 

that he cannot watch every employee all the time (Tr. 258-60). Employees are permitted to 

perform maintenance and servicing such as blade changes, without him being present (Tr. 243, 

44). These informal procedures do not meet the requirements of the cited standard. The Court 

finds Peacock’s lock out program deficient for failure to meet the inspection requirements of § 

1910.147. 

Peacock concedes it did not have in place written lock out procedures (Tr. 50, 216). The 

Secretary also has established Peacock was in violation of the standard at 29 C.F.R. § 

1910.147(c)(4)(i), pleaded in the alternative. 

Peacock contends no written procedures were required, citing, without specificity, to 

statements made by former OSHA Assistant Secretary Joseph Dear in a Congressional hearing 

(Tr. 216, 283).5

 Peacock does not contend it relied on these statements in failing to comply with 

 

5 The Court takes judicial notice Joseph A. Dear served as Assistant Secretary of Labor for Occupational Safety and 
11

the terms of the standard. Because the actual statements were not made part of the record, it is 

not possible for the Court to determine the nature or context of the statements. Moreover, the 

plain language of the standard is clear in its requirements. 

Tommy Peacock also contends he did not reduce the procedures to writing because he is 

dyslexic and because it is “just wasted time and paper. Nobody’s going to ever look at that 

stuff.” (Tr. 220-21). Peacock also suggests it should not be cited because the standard’s 

requirements are “petty.” These are not valid defenses to the explicit mandate of the standard. 

See Secretary of Labor v. OSHRC (CF & I Steel Corp.), 941 F.2d 1051, 1059 n. 10 (10th Cir. 

1991) (“[a]n employer may not simply substitute its judgment for that of OSHA...despite its 

subjective belief that an agency interpretation is invalid.”). 

The Secretary has established Peacock violated the terms of the cited standard. 

Employee Exposure to the Hazard 

 It is undisputed employees performed maintenance activities that exposed them to the 

hazards associated with unexpected energization or start up of the debarker and head rig. 

According to Tommy Peacock, the debarker operator greased the equipment two times per week 

(Tr. 219). The employee was exposed to at least the unexpected release of the pneumatics (Tr. 

255). The head rig operator also services that machine (Tr. 52). According to Tommy Peacock 

the blade is changed every few months (Tr. 243). The head rig is also lubricated once per week 

and oiled daily (Tr. 245-46). During these operations, the employee is potentially exposed to 

unexpected start up of the carriage which could result in him being pulled into the machine (Tr. 

(Tr. 214-15, 254-55). Both Lane and Tommy Peacock perform other maintenance on the 

equipment regularly (Tr. 52). CSHO Sanders testified the lack of written procedures requires 

employees to rely on memory and, given the lack of formalized inspections, could result in an 

employee inadvertently omitting or forgetting a step in the process. Peacock admits not all 

employees are trained on the procedures. Those employees, as well as new employees, who 

were permitted in the area of the debarker and head rig could violate lock out procedures (Tr. 

253, 261). For example, the procedures in place at the time of the inspection required employees 

 

Health from 1993 through 1997. Mr. Dear died February 26, 2014. Joseph Dear Dies, Los Angeles Times, Feb. 

27, 2014. 
12

working on the carriage to “mash a button two or three times” to vent the air (Tr. 252). There 

was no lock in place on the valve. Peacock’s procedure did not protect the servicing employee 

from inadvertent start up of the carriage if he did not see and prevent another employee from 

inadvertently turning on or bumping the switch (Tr. 252). Such a procedure exposes the 

employee servicing the machinery to the hazard specifically addressed in the standard. The 

Secretary has established employee exposure to a hazard.

Employer Knowledge 

The Secretary has the burden to establish Respondent was aware of the violative conduct. 

To establish employer knowledge of a violation the Secretary must show the employer knew, or 

with the exercise of reasonable diligence could have known of a hazardous condition. Dun Par 

Engineered Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). As discussed herein, 

Tommy Peacock was knowledgeable about the operation of and energy sources for the debarker 

and head rig. He was also well aware of the servicing and maintenance activities at the mill. He 

knew the potential risk to employees of not locking out the equipment (Tr. 215-16, 255). 

Finally, although he had procedures he felt adequate for locking out the equipment, he was aware 

those procedures were not in writing, that not all employees were trained, and that he did not 

perform annual inspections (Tr. 216, 244, 257). Tommy Peacock’s knowledge of the violative 

conditions is imputed to Peacock. Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-

1598, 1984); see also Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986). 

The Secretary has established actual knowledge of the violative conditions. 

Classification 

The Secretary alleges the violation of 29 C.F.R. § 1910.147(c)(4)(I) was serious. A 

violation is serious when “there is a substantial probability that death or serious physical harm 

could result” from the hazardous condition at issue. 29 U.S.C. § 666(k). The Secretary need not 

show that there was a substantial probability that an accident would occur; only that if an 

accident did occur, death or serious physical harm would result. As the Third Circuit has 

explained: 

It is well-settled that, pursuant to § 666(k), when the violation of a regulation 
13

makes the occurrence of an accident with a substantial probability of death or 

serious physical harm possible, the employer has committed a serious violation of 

the regulation. The “substantial probability” portion of the statute refers not to the 

probability that an accident will occur but to the probability that, an accident 

having occurred, death or serious injury could result, even in those cases in which 

an accident has not occurred or, in fact, is not likely to occur. 

Secretary of Labor v. Trinity Industries, 504 F.3d 397, 401 (3d Cir. 2007) (internal 

quotation marks and citations omitted); See also, Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 

1240 (9th Cir. 1984); Mosser Construction, 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010); 

Dec-Tam Corp., 15 BNA OSHC 2072, 2087-2088 (No. 88-0523, 1993). The likelihood of an 

accident goes to the gravity of the violation, which is a factor in determining an appropriate 

penalty. J.A. Jones Constr. Co., 15 BNA OSHC at 2214.

The Secretary contends that should either the debarker or the head rig unexpectedly start 

up, an employee could be pulled into the machine (Tr. 53, 63-64). An employee pulled into 

either machine could suffer cuts, amputation, or even death as a result (Tr. 63-64). Although the 

record indicates no Peacock employee has been injured during maintenance operations, this does 

not negate the potential for injury in the event improperly followed lock out procedures. The 

Secretary has established the violation was serious. 

Item 1, Citation 2: Alleged violation of 29 C.F.R. § 1910.134(c)(2)(i) 

Item 1, Citation 2 alleges a violation of 29 C.F.R. § 1910.134(c)(2)(i). The cited standard 

applies where respirators are not required, but an employer allows voluntary use of respirators 

that do not create a hazard to employees. Under such circumstances, the standard requires the 

employer “provide the respirator users with the information contained in Appendix D to this 

section.” 

Item 1 alleges Peacock “[f]ailed to provide the information contained in Appendix D of 

the Respiratory Protection Standard to employees that voluntarily wear dust masks while 

working in the sawmill.” Peacock admits it did not do so, but contends the box for the dust 

masks contained enough information for the employees to safely use them. 
14

Applicability of the Standard 

The standard at § 1910.134 applies to all general industry worksites. The specific 

standard cited applies to those worksites where respirator use is not required but the employer 

has determined voluntary respirator use is permissible. 29 C.F.R. § 1910.134(c)(2)(i). Dust 

masks or “filtering facepieces” are defined under the standard as “a negative pressure particulate 

respirator with a filter as an integral part of the facepiece or with the entire facepiece composed 

of the filtering medium.” 29 C.F.R. § 1910.134(b). Occupational use of dust masks is, therefore, 

regulated by § 1910.134. 

It is undisputed Peacock provided dust masks for voluntary use. CSHO Sanders observed 

employees using those masks (Tr. 72). The Secretary has established applicability of the 

standard to Peacock’s worksite. 

Failure to Comply with the Terms of the Standard, Employee Exposure to the Hazard, 

and Employer Knowledge 

It is undisputed Peacock supplied employees with dust masks, but provided them with no 

training. CSHO Sanders testified she observed employees using dust masks (Tr. 71). When she 

inquired, Tommy Peacock admitted the masks had been made available for employees (Tr. 72). 

She also observed a box containing the masks in the restroom (Tr. 72, 229). She then asked 

employees wearing the masks whether they had been provided Appendix D (Tr. 71). She asked 

further whether they had been instructed to read the manufacturer’s instructions on use, care and 

limitations of the dust masks, not to use another employee’s dust mask, and to use only in 

suitable environments (Tr. 70-71). The employees indicated they had not received that 

information (Tr. 71). Employees stated they used the dust masks because it was dusty (Tr. 72). 

The dust masks were supplied by Peacock and their use was in plain view of Tommy Peacock 

(Tr. 72). Failure to provide employees with the information in Appendix D could result in 

improper use of dust masks, exposing employees to health hazards (Tr. 73). 

Peacock contends the box the dust masks came in is available to employees and contains 

the necessary information (Tr. 282). The information contained on the box was never made part 

of the record. Even if the entire contents of Appendix D were contained on the box, a fact 
15

Peacock failed to prove, simply placing the box in the company restroom does not relieve 

Peacock of its duty to provide employees with the information. Tommy Peacock testified he 

simply chose not to provide any information about the dust masks to employees because “you 

pick your battles...we try to target our instructions to what really will kill you or hurt you.” (Tr. 

229). This defense is without merit. An employer is not free to decide with which regulations it 

will comply. Phoenix Roofing, Inc. v. Secretary of Labor, 874 F.2d 1027, 1031 (5th Cir. 1989) 

(“[i]t would also be improvident for us to ...send employers the message that they [can] ignore 

the obvious mandates of the safety regulation and independently determine what, if any, 

measures should be undertaken in a given situation.”). 

The Secretary has established Peacock failed to comply with the requirements of the 

standard, that employees were exposed to the hazard associated with potential improper use of 

the dust masks, and Peacock had knowledge of the violation. 

Classification 

The Secretary contends the violation is other than serious. The Commission has defined 

a non-serious violation as “one in which there is a direct and immediate relationship between the 

violative condition and occupational safety and health but not of such relationship that a resultant 

injury or illness is death or serious physical harm.” Crescent Warf & Warehouse Co., 1 BNA 

OSHC 1219 (No. 1, 1973). CSHO Sanders testified the purpose of informing employees of the 

information contained in Appendix D is to ensure they use dust masks in the correct environment 

and that they do not use dirty masks (Tr. 73). Use of a contaminated or dirty mask could cause 

illness (Tr. 73). The Secretary has established an other than serious violation. 

Item 2, Citation 2: Alleged Violation of 29 C.F.R. § 1910.151(b) 

Item 2, Citation 2 alleges Peacock violated 29 C.F.R. § 1910151(b) which requires, 

In the absence of an infirmary, clinic, or hospital in near proximity to the 

workplace which is used for the treatment of all injured employees, a person or 

persons shall be adequately trained to render first aid.

 Item 2 alleges Peacock “did not ensure persons were trained to render first aid when the 

nearest hospital/clinic was not in close proximity to the site.” The Secretary alleges the nearest 
16

hospital or clinic was at least 6 miles or approximately 20 minutes away and that no one at the 

mill had been trained in first aid for at least three years. 

Applicability of the Standard 

The standard at 29 C.F.R. § 1910.151 applies to all general industry worksites. The 

requirements of the specific cited standard at § 1910.151(b) are triggered when there is no 

“infirmary, clinic, or hospital in near proximity to the workplace...” 29 C.F.R. § 1910.151(b). 

The standard does not define “near proximity.” In Love Box Co., 4 BNA OSHC 1138 (No. 6286, 

1975), the Commission adopted the finding of the Tenth Circuit in Brennan v. OSHRC and Santa 

Fe Trail Transport Co., 505 F.2d 869, 872 (10th Cir. 1974), that for first aid to be effective it 

must be administered within three minutes. In light of that holding, the Court finds a reasonable 

interpretation of the term “near proximity” to be where the nearest medical facility is not more 

than a three minute drive away. 

The nearest medical facility to Peacock’s mill is at least 6 miles away (Tr. 12). CSHO 

Sanders drove from the mill to her hotel next to the hospital and testified it took her 20 minutes 

to do so (Tr. 76). Although Peacock questioned CSHO Sanders whether there might be faster 

routes, it presented no evidence of such. The Court finds the Secretary has established the 

standard applies to the conditions at the worksite. Peacock was required to have an individual 

trained in first aid present at the worksite. 

Failure to Comply with the Terms of the Standard 

The plain language of the standard requires the employer to ensure at least one individual 

at the worksite is adequately trained to render first aid. The standard does not define “adequately 

trained.” In interpreting that phrase, the Commission has held “[t]he standard contemplates a 

conscious effort on the part of the employer to make certain that one or more employees at each 

workplace had adequate first aid training. It is not enough if, by chance, some employees had a 

smattering of such training many years past.” Cylcone Drilling & Workover, Inc., 9 BNA OSHC 

1439 (Nos. 80-1636 and 1721, 1981). The Commission also has held the Secretary’s burden is 

not met by a mere showing no employee has a valid first aid training certificate. Wissie Smith, 

Inc., 15 BNA OSHC 1327 (No. 90-2182, 1991). Thus, the Secretary must show more than the 
17

passage of time or lapse in certification to establish the inadequacy of training. 

The parties stipulated the only individual onsite with first aid training was Tommy 

Peacock (Tr. 12).6 It also was stipulated Tommy Peacock’s training took place more than four 

years prior to the inspection and his certification had expired (Tr. 12). The Secretary presented 

no other evidence regarding the adequacy of Tommy Peacock’s training or evidence of what a 

reasonable person familiar with the saw mills would consider adequate first aid training. Rather, 

the Secretary relies exclusively on a Letter of Interpretation stating to be adequate, first aid 

training must be conducted every three years (Tr. 78). This letter of interpretation was not made 

part of the record and CSHO Sander’s testimony does not specify the date or author of such 

letter. This is insufficient to meet the Secretary’s burden to establish Tommy Peacock’s training 

was inadequate. 

The Commission has rejected the Secretary’s interpretation of the standard to require an 

employer to have an individual with a current first aid certification present at the worksite. 

Savina Home Industries, Inc., 4 BNA OSHC 1956, 1957 (No. 12298, 1977); Snyder Well 

Servicing, Inc., 10 BNA OSHC 1371, 1376 (No. 77-1334, 1982); Wissie Smith, Inc., 15 BNA 

OSHC at 1358. In Snyder Well Servicing, the Commission further held insufficient the CSHO’s 

testimony he had received no information indicating anyone had been trained. Snyder Well 

Servicing, Inc., 10 BNA OSHC at 1377. In so holding, the Commission agreed with the judge’s 

holding that to find no one at the employer’s worksite had been adequately trained based only on 

the CSHO’s testimony that no one told him otherwise would be “conjecture.” Id. 

In the instant case, the Secretary presented no evidence to establish the training received 

by Tommy Peacock approximately four years prior was inadequate. The Secretary presented no 

evidence CSHO Sander’s inquired into the adequacy of Tommy Peacock’s training or his 

memory of first aid procedures. Nor did the Secretary inquire into his knowledge during cross 

examination of Tommy Peacock. To find Tommy Peacock’s training was inadequate based 

solely on his lack of certification and the passage of four years, would require speculation. The 

Secretary has failed to meet his burden to establish Peacock violated 29 C.F.R. § 1910.151(b)(1) 

 

6

 Clint Peacock also testified he had first aid training (Tr. 282). He did not, however, testify to whether this occurred 

before or after the inspection. The Court finds Tommy Peacock was the only individual trained in first aid at the 

time of the inspection. 
18

and Item 2, Citation 2 is vacated. 

Docket No. 14-0497 

Item 1, Citation 1: Alleged Violation of 29 C.F.R. § 1910.95(c)(1) 

Item 1, Citation 1 alleges a violation of 29 C.F.R. § 1910.95(c)(1) which requires an 

employer to 

administer a continuing, effective hearing conservation program, as described in 

paragraphs (c) through (o) of this section, whenever employee noise exposures 

equal or exceed an 8-hour time-weighted average sound level (TWA) of 85 

decibels measured on the A scale (slow response) or, equivalently, a dose of fifty 

percent. 

Based on CSHO Amick’s noise monitoring results, the Secretary alleged 

Peacock’s employees were exposed to noise in excess of the action level of 85 decibels 

and Peacock had not implemented a hearing conservation program that included, among 

other things, audiometric testing. 

Applicability of the Standard 

In order to establish applicability of the standard, triggering the employer’s obligations 

under the cited standard, the Secretary must establish employee exposure above the 85 decibel 

threshold. The Secretary contends CSHO Amick’s monitoring results show typical exposure of 

Peacock’s employees to noise in excess of the 85 decibel threshold necessary to establish 

applicability of the standard. Peacock disputes the accuracy of CSHO Amick’s monitoring 

results. Peacock questions the competency of CSHO Amick on the day of the inspection and 

points to what it perceives as discrepancies in the documentation related to the dosimeters. 

The record establishes CSHO Amick’s educational background and work experience 

rendered him competent to perform the monitoring. Nothing in his explanation of how he 

performed the monitoring was contrary to the directives in the manual for the dosimeters he used 

(see Exh. R-1). CSHO Amick testified the monitoring results are transferred directly from the 

dosimeter to the computer (Tr. 202-03). He is not able to alter the results in this process (Tr. 

203). Tommy Peacock conceded a sawmill is a noisy environment. It was not disputed the 

employees monitored by CSHO Amick were performing their typical duties. Therefore, the 
19

preponderance of the evidence establishes CSHO Amick’s noise monitoring results accurately 

represent employee exposure to noise at Peacock’s facility and the standard’s requirements 

apply. 

The Court does not find any of the discrepancies noted by Peacock sufficient to discredit 

CSHO Amick’s results. Peacock argues the Secretary did not submit into the record the 

monitoring results generated by the dosimeter worn by CSHO Amick.7 It appears the monitoring 

results for the device used by CSHO Amick do show his exposure was less than the threshold of 

85 decibels (Exh. R-1, pp. 23-26). However, these results did not form the basis for any citation 

and there is no evidence CSHO Amick was in the same proximity to the noise generating 

machinery as the employees. Based upon the photographs taken by CSHO Amick, the Court 

concludes he was some distance from the where the employees were working (Exhs. C-3 and C4). As a result, a lower exposure level would be expected. The results of monitoring on CSHO 

Amick do show exposure near the action level of 85 decibels. These results are consistent with 

what would be expected given CSHO Amick’s location and are not so divergent from the 

exposure levels obtained for the employees to warrant discrediting the results obtained by the 

employee monitoring. 

Peacock also notes records supplied to it by the Secretary show discrepancies in the 

purchase date of the dosimeter used to monitor the employee referenced in instance (a) of the 

citation item. Specifically, dosimeter No. NLJ010087 had been used on occasions that preceded 

the date shown on Exhibit C-5 as the “purchase date” for that dosimeter (compare Exh. R-1, pp. 

1, 4 and Exh. C-5).8

 CSHO Amick explained this date represents when the dosimeter was first 

connected to a particular computer during the download process (Tr. 161-62). It does not truly 

represent the purchase date because the purchase date is not stored in the dosimeter or the 

computer. He testified the purchase date information is not information that would change or 

 

7 As the Court explained at the hearing, the Secretary is under no obligation to present every document 

related to the investigation in this matter. The Court finds no significance to the fact the Secretary 

submitted only those monitoring results that formed the basis of the citation. 

8 Clint Peacock also took issue with the fact the reports were presented to Peacock out of order. On 

December 18, 2014, the Court ordered the Secretary to produce documents to Peacock that related to the 

dosimeters used during the inspection. The Secretary complied with this order. The Court finds no 

substantive significance to the order of the Secretary’s document production. 
20 

alter the monitoring results (Tr. 162). There is no evidence to the contrary. This discrepancy 

does not necessitate discounting CSHO Amick’s monitoring results. Finally, the Court notes 

even if this were a valid basis for discounting the results of monitoring using dosimeter No. 

NLJ010087, the records for dosimeter NLJ010090 contain no such discrepancy (Exh. C-6) and 

the results of monitoring with that dosimeter establish employee exposure above the 85 decibel 

threshold. 

Finally, Peacock contends the noise monitoring does not accurately represent actual 

employee exposure levels because employees wear hearing protection. The standard at § 

1910.95(c) states: “For purposes of the hearing conservation program, employee noise 

exposures shall be computed in accordance with appendix A and Table G-16a, and without 

regard to any attenuation provided by the use of personal protective equipment.” (emphasis 

added). The standard explicitly directs its requirements are triggered at exposure levels 

regardless of the use of hearing protection. The cited standard applies to the conditions at 

Peacock’s worksite. 

Failure to Comply with the Terms of the Standard 

Having established employee exposure to noise above the action level, the Secretary must 

also establish noncompliance with the terms of the standard by showing Peacock had no hearing 

conservation program in place. A hearing conservation program that would comply with the 

cited standard would include, among other things, monitoring of noise levels (§ 1910.95(d)); 

employee notification and training (§§ 1910.95(e) and (k)); audiometric testing (§§ 1910.95(g) 

and (h)); hearing protection (§ 1910.95(i)); and record keeping requirements (§ 1910.95(m)). 

CSHO Amick testified when he inquired about a hearing conservation program, Clint Peacock 

told him the company had none (Tr. 168-69). Tommy Peacock admitted the same in his 

testimony (Tr. 263). Although Peacock did provide its employees with some form of hearing 

protection, Tommy Peacock admitted the company had no written program, did no monitoring, 

provided no training, and did not perform audiometric testing on its employees (Tr. 263-64). 

The Secretary has established Peacock was in violation of the requirements of the standard. 
21

Employee Exposure to the Hazard 

 As discussed in detail herein, CSHO Amick’s noise monitoring results establish 

employee exposure to the hazard of noise over the action level. The standard presumes a hazard 

at that level without regard to any attenuation provided by personal protective equipment. 

CSHO Amick testified without contradiction exposure at such a level could lead to hearing loss 

(Tr. 11, 178-80). This is particularly true where, as here, the employer has made no effort to 

determine whether the personal protective equipment provided is effective (Tr. 179). The 

Secretary has met his burden to establish employees were exposed to a noise hazard. 

Employer Knowledge 

The Secretary contends Peacock had constructive knowledge of employee overexposure 

to noise levels, triggering the requirements of the cited standard. CSHO Amick testified Tommy 

Peacock stated to him while he was setting up the dosimeters that “anyone working in this 

environment should know that they are [at] risk of losing their hearing.” (Tr. 177). Tommy 

Peacock did not deny making this statement. He also admitted in his testimony, based on a 

lifetime of experience around sawmills, that “they are relatively loud.” (Tr. 264). He admitted 

he may have lost some hearing due to his own exposure to noise over the years (Tr. 265). The 

Commission has held, 

[W]hen employees are exposed to a condition that is regulated by the Secretary's 

health standards, such as noise, reasonable diligence requires the employer to use 

those test procedures or measurements that are available to determine whether the 

exposure exceeds the limits set forth in the standard. 

Continental Electric Co., 13 BNA OSHC 2153 (No. 83-921, 1989), citing, Seaboard Foundry, 

Inc., 11 BNA OSHC 1398, 1402 (No. 77–3964, 1983); General Electric Co., 9 BNA OSHC 

1722, 1728 (No. 13732, 1981). Given Tommy Peacock’s awareness of the high level of noise 

experienced by employees working in a saw mill, reasonable diligence would have required 

Peacock determine actual exposure levels. The Secretary has established constructive 

knowledge. 
22

Classification 

The Secretary alleged the violation was serious. Repeated or long term overexposure to 

noise can lead to permanent hearing loss (Tr. 111; 178-80). The levels found at Peacock’s 

facility were at a level that could cause such hearing loss (Tr. 179). A hearing conservation 

program is designed to minimize that risk by ensuring proper hearing protection is used and 

employee’s hearing is monitored (Tr. 178-80). The violation is properly classified as serious. 

Affirmative Defenses 

Peacock’s general defense to all of the citation items is the government agents in this case 

engaged in misconduct and the government’s actions in this matter constitute impermissible 

overreaching. It is not clear on this record what misconduct on the part of the government agents 

Peacock is alleging. Although repeatedly referring to “misconduct,” Peacock never articulated 

what that misconduct was or why the actions of the government agents should negate the 

undisputed facts presented in support of the violations affirmed herein. 

Was the Inspection Proper? 

The requirements for conduct of the Secretary’s representative during an inspection are 

governed by § 8 of the Act. 29 U.S.C. § 657. Under §§ 8(a)(1) and (2), the Secretary may enter 

for purposes of inspection and investigation, any workplace “during regular working hours and at 

other reasonable times, and within reasonable limits and in a reasonable manner.” 29 U.S.C. § 

657(a)(2). Section 8(e) provides walk around rights to the employer and “a representative 

authorized by his employees” during the inspection. 29 U.S.C.§ 657(e). Finally, § 8(f)(1) 

requires the Secretary to make an inspection, if upon receipt of a complaint and a determination 

that “reasonable grounds to believe” a violation or danger exists, as soon as practicable to 

determine whether the violation or danger exists. 29 U.S.C. § 657(f)(1). 

An employer raising a defense under this provision of the Act must show the Secretary’s 

inspection was unreasonable and resulted in actual prejudice to it in the preparation or 

presentation of its defense on the merits. Gem Indus. Inc., 17 BNA OSHC 1184, 1187 (No. 93-

1122, 1995), aff’d without published opinion, 149 F.3d 1183 (6th Cir. 1998). Peacock failed to 

articulate any requirement or mandate of § 8 that the Secretary violated. The Secretary’s 
23

inspection was made pursuant to a complaint that specified conditions likely to be encountered at 

a saw mill (Tr. 38). Both CSHO’s conducted opening conferences. CSHO Amick inquired 

whether there was a union so that it could be made aware of the inspection and choose whether 

to exercise its right under § 8(e) to participate (Tr. 205-06).9

 Both CSHO’s conducted their walk 

around inspections during regular working hours. Neither was there more than two days. There 

is no allegation either asked employees to stop work or otherwise impeded the work being 

performed. No employee who declined was required to wear a dosimeter (Tr. 125). Peacock 

called five employees to testify. None testified to any interference with their work by the 

CSHOs. Peacock has failed to establish the inspections were conducted in violation of § 8 of the 

Act. Nor has Peacock shown how any conduct of the CSHO’s prejudiced it in its defense. 

Peacock contends the inspections were improperly initiated. Peacock contends OSHA 

should not have initiated an inspection based on an employee complaint containing falsified 

information. Peacock also questions the veracity of CSHO Sanders’s claim her sampling 

necessitated a referral for noise monitoring. The Court interprets these arguments as Fourth 

Amendment challenges to the constitutionality of the Secretary’s inspection. 

The Commission has recognized valid consent operates as a waiver of the Fourth 

Amendment right against unreasonable search and seizure. Cody-Zeigler, Inc., 19 BNA OSHC 

1410 (Nos. 99-0912, et. al. 2001). Consent may be given by any management official and need 

not be express. U.S. v. Thriftimart, Inc. 429 F.2d 1006 (9th Cir. 1970). Whether an employer 

voluntarily gave consent to a search is a question of fact to be determined by the totality of the 

circumstances. Schneckloth v. Bustamonte, 412 U.S. at 249-50; U.S. v. Chemaly, 741 F.2d 

1346, 1352 (11th Cir.1984). The Government bears the burden of proving both the existence of 

consent and that the consent was not a function of acquiescence to a claim of lawful authority but 

rather was given freely and voluntarily. U.S. v. Massell, 823 F.2d 1503,1507 (11th Cir. 1987). 

The Secretary established Peacock provided voluntary consent. It is undisputed CSHO 

Sanders informed Tommy Peacock of the basis for the inspection and further informed him she 

would also be looking at plain view hazards. Tommy Peacock accompanied CSHO Sanders on 

 

9

 Peacock suggests this inquiry was inappropriate and part of a targeting scheme for non-union employers. It 

presented no evidence to support such an allegation. 
24

the inspection. Similarly, CSHO Amick informed Clint Peacock of the purpose and nature of his 

inspection, following which Clint Peacock raised no objection to CSHO Amick proceeding to 

conduct noise monitoring (Tr. 270-71). Tommy Peacock accompanied CSHO Amick when he 

arrived at the mill and showed him around the facility (Tr. 200). None of the five employees 

who testified described being intimidated or harassed by the CSHOs. There is no evidence of 

record of any intimidation, coercion, or misrepresentation on the part of either CSHO.

 Peacock suggests CSHO Sanders’s referral for noise monitoring was based on false 

information. Tommy Peacock testified he observed the noise monitor used by CSHO Sanders 

did not provide the readings to which she testified and upon which she based her referral. Based 

upon her straightforward demeanor, the Court found CSHO Sanders to be a credible witness on 

this matter. Moreover, Peacock did not establish Tommy Peacock has any familiarity with the 

use of noise monitoring equipment. To the contrary, he testified, “I was looking over her 

shoulder at it and I had no clue what it was supposed to be doing.” (Tr. 214). The record does 

not support a finding of wrongdoing by CSHO Sanders regarding to her decision to make a 

referral for noise monitoring and OSHA’s subsequent decision to conduct an inspection. Even if 

Tommy Peacock believed at the time CSHO Sanders’s readings were not what she claimed, he 

nevertheless consented to the inspection. He cannot now claim that consent was not knowing or 

voluntary. 

Regarding CSHO Amick, Peacock takes the most issue with comments Clint Peacock 

alleges CSHO Amick made during his initial contact with him. Clint Peacock testified CSHO 

Amick told him “it was illegal to lie to OSHA, that if I did lie to OSHA...I could face jail time 

and fines.” (Tr. 271). He later testified CSHO Amick 

went into this long-winded stories about, you know how wonderful his career was 

and everything...And he told me about going into these big companies and, you 

know, there would be a boardroom full of the operators and the owner. And he 

said he’ll start telling what the violations are, and he said everybody would start 

getting angry at one another...And he just closed his eyes and reared back his 

head and smiled when he was telling about it and would giggle. (Tr. 277). 

CSHO Amick did not deny making these statements; he only testified he did not recall making 

them (Tr. 195). If made, these comments were imprudent and demonstrated a lack of discretion 

on the part of CSHO Amick, but they do not contain threats or intimidating statements. CSHO 
25

Amick did not threaten Clint Peacock with jail if he refused to allow the inspection, he only 

stated that providing false statements could result in prosecution. In any case, Clint Peacock did 

not testify he felt intimidated or threatened such that he was compelled to provide consent. 

Rather he testified he was made extremely angry by these comments. Nevertheless, he said 

nothing to suggest he was withdrawing consent and allowed CSHO Amick to proceed to the mill 

to perform his monitoring. The Court finds this an insufficient basis for a finding of lack of 

consent. 

Did the Government Overreach? 

Peacock contends CSHO Sanders recommendation to issue a general duty clause 

violation and the subsequent determination by the Secretary not to pursue that citation, establish 

overreaching on the part of the Secretary. The decision regarding which citations to pursue in 

litigation is within the broad discretion of the Secretary and the Court will not second guess that 

decision. More importantly, Peacock presented no evidence CSHO Sanders fabricated any of the 

facts upon which she based the original citation item. Rather, Peacock seems to take issue with 

the lack of a regulation specifically addressing the violative condition sited. In so doing, 

Peacock demonstrates a lack of familiarity with the elements of a general duty clause violation - 

one of which being there is no specific regulation that addresses the cited condition. 

The Court also understands Peacock takes issue with the noise exposure level set by the 

Secretary as a trigger for requiring a hearing conservation program. Tommy Peacock testified 

despite knowing individuals who worked around sawmills his entire life, he was unaware of any 

one of those individuals suffering a hearing loss (Tr. 264-65). He went on to testify regarding 

the level of exposure set by the Secretary in the regulation: 

And so I think this was a crock. You know, it’s made up for OSHA to get money. 

There’s nothing that – they’ve got this – me and Clint stepped outside the door, 

and it was 8[sic] decibels just right outside the door out here. Right – eighty. 

That this hearing –the noise limits are ridiculously low. 

(Tr. 265). He raised a similar defense in his closing argument, stating, “even some of the 

regulations that we’re technically in violation, I don’t think that we should be, that anybody 

should be prosecuted over violations that are so petty and difficult to achieve.” (Tr. 314). A 

defense based on a challenge to the wisdom of a standard’s requirements is not one the 
26

Commission is empowered to entertain. Manganas Painting Co., Inc., 21 BNA OSHC 1964, 

1971 (No. 94-0588, 2007) citing Loomis Cabinet Co., 15 BNA OSHC 1635, 1640 (No. 88-2012, 

1992). Similarly, “alterations to OSHA”s safety standards cannot...be obtained in adjudicatory 

proceedings before the Commission, which only concerns itself with the employer’s alleged 

violation of an existing standard.” Carabetta Enterprises Inc., 15 BNA OSHC 1429, 1432 (No. 

89-2007, 1991). 

Infeasibility or Impossibility of Compliance 

To the extent Peacock raises an affirmative defense of infeasibility of compliance (Tr. 

315), it has failed to meet its burden to establish the elements of that defense. Peacock has 

presented no evidence to establish it was functionally impossible to draft written lock out 

procedures, provide employees with information about dust masks, or implement the elements of 

a hearing conservation program. See M.J. Lee Construction Co., 7 BNA OSHC 1140 (No. 

15094, 1979). 

Penalty Determination

The Commission, in assessing an appropriate penalty, must give due consideration to the 

gravity of the violation and to the size, history and good faith of the employer. See § 17(j) of the 

Act. The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 

1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 

17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty 

amounts but places no restrictions on the Commission’s authority to raise or lower penalties 

within those limits.”), aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the 

Commission gives due consideration to all of the statutory factors with the gravity of the 

violation being the most significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform Inc., 19 

BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 152 (5th Cir. 2002) 

(unpublished). “Gravity is a principal factor in a penalty determination and is based on the 

number of employees exposed, duration of exposure, likelihood of injury, and precautions taken 

against injury.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-

1052, 2005). 
27

Docket No. 14-0498 

The Secretary proposed a penalty of $2,000.00 for Item 2, Citation 1, alleging a serious 

violation of 29 C.F.R. § 1910.147(c)(1). The Secretary contends the penalty is based on an 

assessment the severity of an injury resulting from failure to properly lock out a machine is high 

and the probability of an accident is low (Tr. 65). The Secretary also reduced the gravity based 

penalty by 60% due to the small size of the employer. The Secretary gave neither a reduction 

nor an increase for good faith or history. The undersigned agrees the potential injury in the event 

of an accident should an employee improperly lock out the equipment at the mill is high. The 

equipment contains large, sharp blades and the material being worked on is large heavy logs and 

other lumber. Should an accident occur, amputation is a likely injury. The evidence establishes 

Peacock took measures to reduce the likelihood of an accident. Very few employees are 

permitted to work on the equipment to perform servicing activities. Tommy Peacock did make 

efforts to ensure those individuals were trained on lock out procedures. The undersigned finds a 

gravity based penalty of $5,000.00 is warranted based on these facts. Peacock is a small 

employer, having only seven full time employees. The undersigned finds, based upon the 

testimony of employees, Peacock is entitled to a reduction for good faith. Although the company 

has minimal documentation of safety policies, each employee testified company officials 

emphasize safety at the worksite. Peacock officials were cooperative during the inspection. The 

company has no history of prior citations or serious injuries. Based upon the foregoing 

considerations, a penalty of $1,000.00 is assessed. 

The Secretary has proposed no penalty for Item 1, Citation 2. The undersigned agrees no 

penalty for this violation is warranted given the lack of evidence of a serious injury resulting 

from the violative condition. 

Docket No. 14-0498 

The Secretary proposed a penalty of $2,800.00 for Item 1, Citation 1. The Secretary 

contends the penalty is based on the likelihood of permanent hearing loss due to daily exposure 

to high levels of noise (Tr. 180-81). The Secretary reduced the gravity based penalty based on 

Peacock’s small size but gave no reductions for good faith or history. The undersigned agrees 

the exposure levels found during the inspection put all of Peacock’s employees at a significant 
28

risk for permanent hearing loss. Peacock provided hearing protection, but had not performed any 

type of evaluation of the effectiveness of that protection. A gravity-based penalty of $7,000.00 is 

warranted. For reasons discussed herein, the undersigned has taken into consideration Peacock’s 

small size, good faith, and history in reducing the gravity-based penalty. A penalty of $2,000.00 

is assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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

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

ORDER 

OSHRC Docket No. 14-0497

Based upon the foregoing decision, it is ORDERED that 

1. Item 1, Citation 1, alleging a violation of 29 C.F.R. § 1910.95(c)(1) is affirmed as a 

serious violation and a penalty of $2,000.00 is assessed. 

OSHRC Docket No. 14-0498 

Based upon the foregoing decision, it is ORDERED that 

1. Item 1, Citation 1, alleging a violation of § 5(a)(1) of the Act is withdrawn; 

2. Item 2, Citation 1, alleging a violation of 29 C.F.R. § 1910.147(c)(1) or, in the 

alternative, § 1910.147(c)(4)(i), is affirmed as a serious violation and a penalty of 

$1,000.00 is assessed; 

3. Item 1, Citation 2, alleging a violation of 29 C.F.R. § 1910.134(c)(2)(i) is affirmed as an 

other than serious violation and no penalty is assessed; and 

4. Item 2, Citation 2, alleging a violation of 29 C.F.R. § 1910.151(b) is vacated. 

SO ORDERED. 

/s/ 

 

Date: May 1, 2015 HEATHER A. JOYS 

 Administrative Law Judge 

Atlanta, Georgia