UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 22-0494

GANDER AND WHITE SHIPPING, INC.,

Respondent. 

DECISION AND ORDER

Attorneys and Law firms 

C. Renita Hollins, Trial Attorney, Office of the Solicitor, Atlanta, GA, for Complainant. 

Sean Maguire, Non-Attorney Representative, Long Island City, NY, for Respondent. 

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

An employee of Respondent Gander and White Shipping, Inc. (Gander) was injured in an 

accident on January 18, 2021, in Miami, Florida (worksite), which resulted in the initiation of an 

investigation by Compliance Safety and Health Officer Anthony Campos1 with the Occupational 

Safety and Health Administration (OSHA). After Campos conducted the inspection the 

Complainant Secretary of Labor (Secretary)2 subsequently issued Gander two citations with 

proposed penalties totaling $4,681.00. Gander’s late notice of contest (NOC) contested the 

penalties only.

3 Since no penalty was involved in Citation 2, Gander did not contest Citation 2, 

1 “Compliance Safety and Health Officer” means “a person authorized by the Occupational Safety and 

Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. § 1903.22(d). 

2 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated 

his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA.

See Order 8-2020, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for 

Occupational Safety and Health, 85 Fed. Reg. 58393 (Sept. 18, 2020), superseding Order No. 1-2012, 77 

Fed. Reg. 3912 (Jan. 25, 2012). The terms “Secretary” and “OSHA” are used interchangeably herein. For 

simplicity, the court also refers to actions taken by the Assistant Secretary and the Area Directors as actions 

taken by the Secretary. 

3 The late NOC stated, “We respectfully request that the fine be waived as we regularly conduct safety 

training for each new hire and periodically thereafter when circumstances permit.” Early decisions of the 

Commission held that when an employer contested the penalties, the citations were automatically in 
2 

Item 1. Therefore, in accordance with §10(a) of the Act, Citation 2, Items 1 is “deemed a final 

order of the Commission and not subject to review by any court or agency.” 

The Secretary subsequently filed a formal complaint4

 with the Commission seeking an 

Order affirming the Citation. Thereafter, the Court granted Gander’s unopposed request to convert 

the case to simplified proceedings, where pleadings are not required, and the admission of evidence 

is generally not controlled by the Federal Rules of Evidence.5 The court held a bench trial on 

February 8, 2023. Based upon the record, the court concludes it has jurisdiction over the parties 

and subject matter in this case. For the reasons indicated infra, the Court AFFIRMS Citation 1, 

Item 1 and assesses a penalty of $4,681. 

II. BACKGROUND

OSHA received an anonymous complaint on January 21, 2021, which alleged an employee 

was elevated on a scissor lift checking a box that was on a shelf and fell out of the lift 

approximately 9 feet to the ground fracturing the elbow on his left arm. (Ex. C-2.) Campos opened 

an inspection on January 25, 2021. (Compl. Ex. A.) Through his investigation, Campos learned

that the accident occurred on January 18, 2021. (Ex. C-2.) During the course of his investigation, 

Campos determined that Gander’s employees were operating forklifts in the warehouse without 

having the required training and certification. (Tr. 30; see also Ex. C-2.) According to the Campos, 

forklifts are powered industrial trucks. (Tr.19). Eugene Layton, Gander’s Operations Manager, 

admits it operates a scissor lift and a battery powered forklift at the worksite, which were power 

industrial equipment. (Tr. 61). Layton also admitted its employees were not trained at the time of 

the accident and testified that since the accident, Gander has now trained its employees. (Tr. 62).

Admitted into the record were certifications showing Ganders employees were certified in 

Powered Industrial Trucks after the date of the accident and after the initial inspection. (Ex. R-1 

through Ex. R-41.) 

contest. See Swan Lake Moulding Co., 1 BNA OSHC 1419, 1421 (No. 1305, 1973). This position was 

reversed by the Commission in Florida East Coast Properties, Inc. when the Commission held that “even 

though a respondent properly contests the amount of a penalty proposed by the Secretary, the Commission 

does not thereby acquire jurisdiction to review the violation.” Fla. E. Coast Properties, Inc., 1 BNA OSHC 

1532 (No. 2354, 1974). 

4 Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a 

different part of the same pleading or in another pleading or in any motion. A copy of any written instrument 

which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R §2200.30(d). Attached to the 

complaint and also adopted by reference were the citations, which were “a part thereof for all purposes.” 

5 The Secretary stipulated the Federal Rules of Evidence will apply to him. (See 29 C.F.R §2200.209(c)). 
3 

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries. 

Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive 

regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for 

‘every working man and woman in the Nation.’” Martin v. Occupational Safety and Health Review 

Comm'n (CF&I Steel Corp.), 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). “The Act 

charges the Secretary with responsibility for setting and enforcing workplace health and safety 

standards.” Id. To achieve this purpose, the Act imposes two duties on an employer, a general duty 

to “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), and a specific duty to “comply with occupational safety and 

health standards promulgated under this Act.” Id. § 654(a)(2). Thus, each employee must “comply 

with occupational safety and health standards and all rules, regulations, and orders issued pursuant 

to this Act which are applicable to his own actions and conduct.” Id. § 654(b). 

Pursuant to that authority, the standards at issue in this case were promulgated. See 29 

U.S.C. § 665. Meanwhile, the Commission is assigned to carry out adjudicatory functions under 

the Act and serves “as a neutral arbiter and determine whether the Secretary's citations should be 

enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 

474 U.S. 3, 7 (1985) (per curiam). Thus, Congress vested the Commission with the “adjudicatory 

powers typically exercised by a court in the agency-review context.” CF&I Steel Corp., 499 U.S. 

at 151. 

Under the law of the Eleventh Circuit where this case arose,6 “the Secretary will make out 

a prima facie case for the violation of an OSHA standard by showing (1) that the regulation 

applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; 

and importantly, (4) that the employer ‘knowingly disregarded’ the Act's requirements.” Quinlan 

6 The employer or the Secretary may appeal a final decision and order to the federal court of appeals for the 

circuit in which the violation allegedly occurred or where the employer has its principal office, and the 

employer also may appeal to the D.C. Circuit. See 29 U.S.C. §§ 660(a) and (b). The Commission has held 

that “[w]here it is highly probable” that a case “would be appealed to a particular circuit, the Commission 

has generally applied the precedent of that circuit in deciding the case — even though it may differ from 

the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2068 (No. 96-1719, 2000). 

The Eleventh Circuit has jurisdiction over the site of the alleged violations and Respondent’s principal place 

of business, both of which are in Miami, Florida. The court applies its precedent here.
4 

v. Sec'y, U.S. Dep't of Labor, 812 F.3d 832, 836 (11th Cir. 2016) (quoting ComTran Grp., Inc. v. 

U.S. Dep’t of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013)). “If the Secretary establishes a prima 

facie case with respect to all four elements, the employer may then come forward and assert the 

affirmative defense of unpreventable or unforeseeable employee misconduct.” Id. (citing id. at 

1308). 

Citation 1, Item 1

The cited standard mandates that the employer “shall ensure that each powered industrial 

truck operator is competent to operate a powered industrial truck safely, as demonstrated by the 

successful completion of the training and evaluation specified in this paragraph (l).” 29 CFR 

§1910.178(l)(1)(i). Citation 1, Item 1 asserts Gander violated §1910.178(l)(1)(i) when it “did not 

ensure that each powered industrial truck operator is competent to operate a powered industrial 

truck safely, as demonstrated by the successful completion of the training and evaluation specified 

in this paragraph (l)[.]” (Compl. Ex. A.) More specifically, the Secretary asserts that on or about 

January 21, 2021, Gander “did not ensure that employees while operating powered industrial truck 

to transport merchandise were trained and evaluated, thereby exposing employees to falls, crushedby and struck-by hazards.” (Id.) 

(1) Cited Standard Applied

The powered industrial truck standard found at 29 C.F.R. § 1910.178 “contains safety 

requirements relating to fire protection, design, maintenance and use of fork trucks, tractors, 

platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by 

electric motors or internal combustion engines.” 29 C.F.R. § 1910.178(a)(1). Gander’s Operations 

Manager admits it operates a scissor lift and a battery powered forklift at the worksite. Thus, the 

cited standard applied. 

(2) Cited Standard was Violated 

Gander’s Operations Manager admits its employees were not trained at the time of the 

accident. Therefore, Gander violated 29 CFR §1910.178(l)(1)(i). 

(3) Whether Employees were Exposed to Hazard

Employees working inside the warehouse were exposed to struck by hazards from 

untrained forklift operators. Therefore, the Secretary has satisfied the third element as it relates to 

Citation 1, Item 1.
5 

(4) Whether Gander “Knowingly Disregarded” the Act's Requirements

The Act imposes liability on the employer for a serious violation only if the employer 

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

violation. Fla. Lemark Corp. v. Sec'y, U.S. Dep't of Lab., 634 F. App'x 681, 687 (11th Cir. 2015). 

“When a corporate employer entrusts to a supervisory employee its duty to assure employee 

compliance with safety standards, it is reasonable to charge the employer with the supervisor's

knowledge actual or constructive of noncomplying conduct of a subordinate.” ComTran Grp., Inc. 

v. U.S. Dep’t of Labor, 722 F.3d 1304, 1317 (11th Cir. 2013) (citation omitted). “It is reasonable 

to do this because a corporate employer can, of course, only act through its agents . . . and the 

supervisor acts as the ‘eyes and ears’ of the absent employer. That makes his knowledge the 

employer's knowledge.” Id. 

“The Secretary may prove that an employer had knowledge of a violation in one of two 

ways—(1) by imputing the actual or constructive knowledge of a supervisor or (2) by 

demonstrating constructive knowledge based on the employer's failure to implement an adequate 

safety program.” Samsson Constr., Incorp. v. Sec'y, U.S. Dep't of Lab., 723 F. App'x 695, 697 

(11th Cir. 2018) (citing ComTran Grp., Inc., 722 F.3d at 1311). Here, Joel Hernandez, the 

warehouse foreman admitted to Campos that he and another employee operated the forklifts even 

though they have never been trained. 

However, “the Secretary does not carry [his] burden and establish a prima facie case with 

respect to employer knowledge merely by demonstrating that a supervisor engaged in 

misconduct.” ComTran Grp., Inc., 722 F.3d at 1316. “A supervisor's ‘rogue conduct’ cannot be

imputed to the employer in that situation.” Id. “Rather, ‘employer knowledge must be established, 

not vicariously through the violator's knowledge, but by either the employer's actual knowledge, 

or by its constructive knowledge based on the fact that the employer could, under the circumstances 

of the case, foresee the unsafe conduct of the supervisor, [that is, with evidence of lax safety 

standards].” Id. (citation omitted). “Without such evidence, a supervisor's misconduct may be 

viewed as an isolated incident of unforeseeable or idiosyncratic behavior . . . which is insufficient, 

by itself, to impose liability under the Act.” Id. (citations omitted). 

Here, Hernandez admitted both he and a subordinate employee operated the forklifts even 

though they have never been trained. Therefore, “the situation with respect to the non-supervisory 

subordinate employee in this case is analogous to the ordinary situation in which imputation is 
6 

clearly established.” Quinlan, 812 F.3d at 841. Hernandez’s actual knowledge of a subordinate 

employee’s hazardous conduct is imputed to Gander.

7 Therefore, the Secretary has satisfied the 

fourth element as it relates to Citation 1, Item 1.

IV. PENALTY

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 

of the Act. See 29 U.S.C. §§ 659(a), 666. Ultimately, it is the province of the Commission to 

“assess all civil penalties provided in [Section 17]”, which it determines de novo. 29 U.S.C. § 

666(j); see also Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995). In determining an 

appropriate penalty, the Court is required to consider “the employer’s size, the gravity of the 

violation, the good faith of the employer, and any prior history of violations.” Briones Util. Co., 

26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing 29 U.S.C. § 666(j). These factors are not 

necessarily accorded equal weight. J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 

1993) (citation omitted). Gravity is the primary focus of any penalty analysis, which takes into 

consideration: (1) how many employees were exposed and for how long; (2) whether Gander took 

precautions against injury; (3) the probability an accident will occur; and (4) the likelihood an 

injury will occur. See, e.g., Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 

34 F. Appx. 152 (5th Cir. 2002) (unpublished). 

 The Secretary proposed a penalty of $4,681.00 for Citation 1, Item 1. The Secretary

determined the violation was of medium severity because an employee being struck by a forklift 

could suffer a fracture, and lessor probability based on the limited time of employee exposure to 

the hazard. (See Ex. C-3; see also Ex. C-12) (where Carlos Sosa stated, “I used the forklift 

sometimes 2 to 3 times a week to 2 to 3 times a month”). The court agree with the Secretary’s 

determination. The Secretary proposed a 60% reduction in the penalty amount because Gander 

had 15 employees. Based upon Carlos Sosa’s statement, the court finds the actual number of 

employees was 20 (“about 15 people in the warehouse and 5 in the office”). (Ex. C-12.) The court 

7 The Secretary classified the violation as “serious,” which is true if “an employer knew about and failed to 

prevent ‘a substantial probability that death or serious physical harm could result from a condition which 

exists’ in the workplace.” Fluor Daniel v. Occupational Safety & Health Review Comm'n, 295 F.3d 1232, 

1239 (11th Cir. 2002) (quoting 29 U.S.C. § 666(k)). As the Commission has noted, “[t]his does not mean 

that the occurrence of an accident must be a substantially probable result of the violative condition but, 

rather, that a serious injury is the likely result if an accident does occur.” Mosser Constr., Inc., 23 BNA 

OSHC 1044, 1046 (No. 08-0631, 2010) (quoting Oberdorfer Indus. Inc., 20 BNA OSHC 1321 (No. 97-

0469, 2003) (consolidated) (citation omitted)). Based upon the record, the court concludes the Secretary 

properly classified the violation as a serious one. 
7 

nonetheless agrees that a 60% reduction for size is appropriate. The Secretary did not provide an 

increase or a reduction based upon Gander’s history since OSHA had not inspected Gander in the 

previous 5 years. The court agrees with that determination. The Secretary also did not provide a 

reduction based upon good faith. Since Gander had no program in place to ensure that each 

powered industrial truck operator was competent to operate a powered industrial truck safely prior 

to the accident, the court also agree with that determination. Thus, considering Gander’s size, the 

gravity of the violation, the lack of good faith, and its history, the court concludes the appropriate 

penalty is $4,681. Accordingly, 

V. ORDER

IT IS HEREBY ORDERED THAT Citation 1, Item 1 is AFFIRMED and a civil penalty of 

$4,681 is ASSESSED. 

SO ORDERED. 

/s/

JOHN B. GATTO, Judge

Dated: March 10, 2023 

Atlanta, GA