United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION

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

Washington, DC 20036-3457

 

ON BRIEFS:

Marisa C. Schnaith, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Edmund C. 

Baird, Associate Solicitor of Labor for Occupational Safety and Health; Kate S. O’Scannlain, 

Solicitor of Labor; U.S. Department of Labor, Washington, D.C. 

For the Complainant

Randall C. Schauer, Esq.; Fox Rothschild, LLP, Exton, PA

For the Respondent 

DECISION

Before: ATTWOOD, Chairman; and LAIHOW, Commissioner. 

BY THE COMMISSION:

Home Rubber Company, LP is a small manufacturer of specialty industrial rubber products

located in Trenton, New Jersey. In May 2016, a Home Rubber employee was injured while 

operating a mill. The Occupational Safety and Health Administration conducted an inspection of 

the company’s facility and issued Home Rubber three citations alleging violations of various 

housekeeping, noise, electrical, forklift, machine guarding, lockout-tagout (LOTO), bloodborne 

pathogen, hazard communication, and injury reporting requirements. Following a hearing, 

Administrative Law Judge Carol A. Baumerich affirmed all three citations as issued and assessed 

the proposed $180,592 penalty. 

SECRETARY OF LABOR,

HOME RUBBER COMPANY, LP,

Complainant,

Respondent.

v. OSHRC Docket No. 17-0138
2 

At issue on review is the characterization of Willful Citation 2, Items 1(a)-(b), and the 

merits and characterization of Serious Citation 1, Items 5, 9, 13, 15(a)-(d), and 18. For the reasons 

discussed below, we recharacterize Willful Citation 2, Items 1(a)-(b) as serious; affirm Serious 

Citation 1, Items 5, 9, 15(a)-(d), and 18; and vacate Serious Citation 1, Item 13. 

BACKGROUND

Home Rubber uses four primary mills to manufacture its products, which it refers to as: 

Mill One, Mill Three, the Chrome Mill, and the Kobe Warm-up Mill. On May 6, 2016, an 

employee was feeding raw material into the steel rollers of the Chrome Mill when his hand was 

pulled into the machine’s nip point. He was able to free his hand by reversing the rollers and was 

taken to a hospital where four of his fingers were surgically amputated. While he was at the 

hospital, two of Home Rubber’s maintenance employees cleaned up blood from the incident using 

rags and bleach. 

 During OSHA’s inspection on May 16, 2016, the compliance officer noticed that she 

needed to shout when speaking to the company’s owner, Richard Balka, near the Chrome Mill. 

She therefore returned to the facility on June 2, 2016, to monitor the noise levels that mill operators 

were being exposed to during a workday. Her monitoring showed that the Chrome Mill and Mill 

Three operators had 8-hour time-weighted average exposure levels of 91.8 dBA and 89.5 dBA

respectively. 

DISCUSSION

I. Characterization of Willful Citation 2, Items 1(a)-(b)

The Secretary alleges that Home Rubber willfully violated two provisions of the 

occupational noise exposure standard, 29 C.F.R. § 1910.95, which requires an employer to 

establish an audiometric testing program that includes baseline and annual audiograms for “all 

employees whose exposures [to noise] equal or exceed an 8-hour time-weighted average of 85 
3 

decibels.”1 29 C.F.R. §§ 1910.95(g)(1), (g)(5)(i), (g)(6).2 According to the Secretary, Home 

Rubber failed to obtain baseline and annual audiograms for its Chrome Mill and Mill Three 

operators for over a decade starting at least as early as 2006. Before the judge and on review, 

Home Rubber does not dispute that it failed to comply with the cited provisions. It argues only 

that the violations are not willful and should instead be characterized as other-than-serious. 

A. Willful

A violation is willful if the employer’s state of mind at the time of the violation reflects 

either: (1) “an intentional, knowing, or voluntary disregard for the requirements of the 

[Occupational Safety and Health] Act” or employee safety; or (2) “plain indifference” to either the 

cited “OSHA requirements” or “employee safety.” Kaspar Wire Works, Inc., 18 BNA OSHC 

2178, 2181 (No. 90-2775, 2000) (citations omitted), aff’d, 268 F.3d 1123 (D.C. Cir. 2001); see 

also A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002) (stating that 

“conscious disregard” of the Act and “plain indifference” to the Act are two “alternative” forms 

of willfulness); Active Oil Serv., Inc., 21 BNA OSHC 1184, 1188 (No. 00-0553, 2005) (“conscious 

disregard of . . . the safety and health of employees” constitutes willfulness); Bianchi Trison Corp. 

v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (applying same test).3

 The Secretary can establish 

intentional disregard by showing that the employer “(1) had a heightened awareness of the 

applicable standard . . . and (2) consciously disregarded the standard.” Jim Boyd Constr., Inc., 26 

1 “[A]n 8-hour time-weighted average of 85 decibels or a dose of fifty percent . . . .” is the noise 

standard’s “action level.” 29 C.F.R. § 1910.95(c)(2). An “audiogram” is a “chart, graph, or table 

resulting from an audiometric test showing an individual’s hearing threshold levels as a function 

of frequency.” 29 C.F.R. § 1910.95, app. I.

2 Section 1910.95(g)(1) requires an employer to “establish and maintain an audiometric testing 

program as provided in this paragraph by making audiometric testing available to all employees 

whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels.” Section 

1910.95(g)(5)(i) requires the employer to obtain “[w]ithin 6 months of an employee’s first 

exposure at or above the action level, . . . a valid baseline audiogram against which subsequent 

audiograms can be compared.” And § 1910.95(g)(6) requires the employer to obtain a new 

audiogram “[a]t least annually after obtaining the baseline audiogram, . . . for each employee 

exposed at or above an 8-hour time-weighted average of 85 decibels.” 

3 The worksite and Home Rubber’s principal place of business are both in New Jersey, so this 

matter may be appealed to the Third Circuit or the D.C. Circuit. See 29 U.S.C. § 660(a)-(b). The 

Commission generally applies the law of the circuit to which the decision is likely to be appealed. 

Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). 
4 

BNA OSHC 1109, 1111 (No. 11-2559, 2016) (citations omitted). In other words, the Secretary 

can establish intentional disregard by showing that “the employer was actually aware, at the time 

of the violative act, that the act was unlawful . . . .” AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 

70, 74 (D.C. Cir. 2004) (citation omitted). Alternatively, the Secretary can prove plain indifference

by showing that the employer “possessed a state of mind such that if it were informed of the 

standard, it would not care.” Id. (emphasis and citation omitted). 

In finding that the violations here were willful, the judge focused on the fact that Home 

Rubber had been informed of OSHA’s audiogram requirements in 1999 following a noise audit 

conducted by the state of New Jersey, which was voluntarily requested by Norman Zigler, the 

company’s safety director at the time.4 The audit’s report informed Home Rubber that it was

required by OSHA standards to obtain audiograms for the Mill Three operators due to the amount 

of noise the mill produced.

5

 The report also included a copy of OSHA’s occupational noise 

exposure standard, 29 C.F.R. § 1910.95. After receiving the report, Home Rubber adopted a 

written “Hearing Protection Policy” that required it to obtain baseline and annual audiograms for 

the Mill Three operators. In the years that followed, Home Rubber conducted some audiometric 

testing of its operators.6

 

In light of the company’s policy and subsequent testing, the judge found that Home Rubber

“ignored” OSHA’s audiogram requirements when it stopped testing employees. The judge also 

noted that company owner Balka and plant manager Jim Bole were in the facility’s production 

area on a daily basis where they could hear the machine noise, providing both of them with what 

the judge described as a “daily reminder” of the need to obtain audiograms for the mill operators. 

According to the judge, all of these facts supported finding that the company had a heightened 

awareness of the cited requirements and consciously disregarded them. 

4 The safety director position was held by multiple people, and was vacant for a period of time, 

between Zigler’s departure and the OSHA inspection and citation. 

5 The state did not test noise levels for the Chrome Mill as it was not added to the facility until 

2007. 

6 It is unclear exactly when Home Rubber stopped obtaining audiograms. The Secretary states that 

Home Rubber “implemented its hearing policy for several years . . . in the early 2000s,” but 

stopped testing at least by 2006. Home Rubber produced copies of some audiograms that it 

obtained for employees in 2000 and 2002. 
5 

On review, Home Rubber does not directly challenge any of the facts relied upon by the 

judge but argues that they do not support a willful characterization. It claims that safety director 

Zigler’s awareness of the company’s hearing protection policy does not mean the company itself, 

or its president and owner, Balka, had knowledge of that policy, and notes that Zigler left the 

company in 2006.7

 According to Home Rubber, Balka was unaware of the policy and not 

“involved in any actions with respect to the [policy].” Home Rubber further contends that it 

“believed it was in compliance with its obligations with regard to hearing protection,” and that 

OSHA failed to “disabuse it of that belief” when it previously inspected Home Rubber in 2012.8 

It also points out that it provides hearing protection to its mill operators and argues that the 

“[W]illful Citation should also be viewed against [its] efforts” to comply with OSHA’s 

requirements. 

The Secretary argues that Home Rubber had a heightened awareness both that audiograms 

were required by OSHA and of the ongoing presence of a noise hazard in its facility, and that its 

failure to conduct the required testing in the ten years since Zigler left the company therefore 

reflects both a conscious disregard of and plain indifference to the audiogram requirements. Like 

the judge, the Secretary emphasizes that Home Rubber was expressly informed of OSHA’s 

audiogram requirements by the 1999 report produced as a result of the voluntary audit, adopted a 

policy mirroring those requirements, and obtained some audiograms in the early 2000’s. Finally, 

the Secretary asserts that Zigler’s “intimate knowledge” of the audiogram requirements can be 

imputed to Home Rubber even though he left the company in 2006. 

7 Home Rubber implies, though does not directly argue, that Zigler’s knowledge cannot be imputed 

to it since he left the company in 2006. But the Commission has rejected the notion that a former 

supervisor’s knowledge cannot be imputed to an employer for purposes of assessing willfulness. 

See Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d, 122 F.3d 437 (7th Cir. 

1997) (rejecting employer’s claim that a violation was not willful because only the former, not the 

current, supervisors had heightened awareness of the cited hazard). 

8 To the extent Home Rubber is vaguely asserting a good faith belief defense to willfulness, we 

reject that argument because the company did not present this affirmative defense below, and the 

Commission “will ordinarily not review issues that the Judge did not have an opportunity to pass 

on.” Commission Rule 92, 29 C.F.R. § 2200.92; see also Dover High Performance Plastics, Inc., 

No. 14-1268, 2020 WL 5880242, at *4 (O.S.H.R.C., Sept. 25, 2020) (violation not willful if 

employer proves it had a “good faith” belief that its conduct conformed to the law). 
6 

We agree that Home Rubber had a heightened awareness of OSHA’s audiogram 

requirements and of the presence of hazardous noise levels given that Zigler, as a Home Rubber 

supervisor, was informed about both by the 1999 audit report. See MVM Contracting Corp., 23 

BNA OSHC 1164, 1167 (No. 07-1350, 2010) (supervisor having been previously informed of 

OSHA standard’s requirements established company’s heightened awareness of those 

requirements); Branham Sign Co., 18 BNA OSHC 2132, 2134 (No. 98-752, 2000) (“The state of 

mind of a supervisory employee, his or her knowledge and conduct, may be imputed to the 

employer for purposes of finding that the violation was willful.”). We also find that Balka had a 

heightened awareness of the standard’s requirements, which can be imputed to Home Rubber. 

Balka testified that he was aware of the audit and admitted that “as an owner, [he] probably was 

asked to review” the company’s hearing protection policy adopted in response. 

The fact that a company has heightened awareness of an OSHA requirement, however, 

does not by itself establish that it acted with a “willful state of mind” at the time it violated that 

requirement. See Envision Waste Serv., LLC, No. 12-1600, 2018 WL 1735661, at *11-12 

(O.S.H.R.C., Apr. 4, 2018) (employer’s heightened awareness of OSHA training requirements did 

not establish a willful violation where it was unclear the safety manager responsible for providing 

the training was aware of his failure to do so); Stark Excavating, Inc., 24 BNA OSHC 2218, 2224 

(No. 09-0004, 2014) (consolidated) (supervisor’s heightened awareness of OSHA trench 

protection requirements did not establish willful violation where there was insufficient evidence

that his failure to comply “was anything more than negligence”), aff’d, 811 F.3d 922 (7th Cir. 

2016). While Home Rubber was aware of OSHA’s audiogram requirements and that noise in its 

facility posed a hazard, the question remains whether it was intentionally disregarding those 

requirements or acting with plain indifference to employee safety when it stopped obtaining 

audiograms under its policy. Kaspar Wire Works, Inc., 18 BNA OSHC at 2181 (“The hallmark of 

a willful violation is the employer’s state of mind at the time of the violation . . . .”). 

We find that the record falls short in this regard. The Secretary points to little evidence 

regarding the circumstances surrounding the lapse of the company’s testing program, such as 

evidence that a conscious decision to stop testing was made by Home Rubber’s management or 
7 

evidence that management had become indifferent to employee safety.

9

 According to Balka, the 

company’s testing program simply “fell to the wayside” and “was essentially just forgotten about 

when [the] last [safety] manager left.” The Secretary asks that we infer a willful state of mind 

from the loud and ongoing noise at the facility, as well as the fact that the company failed to test

employees for “over a decade . . . .” But neither point is sufficient for such an inference. 

Indeed, although there is no dispute that the facility was noisy, that fact alone would not 

necessarily have alerted management to the specific requirements cited here—obtaining 

audiograms under the company’s policy. Likewise, the noisy conditions, without more, do not 

establish plain indifference.10 Finally, we find the length of time that passed since Home Rubber 

last complied with its program also fails to show its noncompliance was “more than negligence”

absent some additional evidence reflecting that the company possessed a willful state of mind 

during that period.

11 Stark Excavating, 24 BNA OSHC at 2224; see also Cranesville Block Co., 

23 BNA OSHC 1977, 1981 (No. 08-0316, 2012) (consolidated) (compliance program “lapses” 

resulting from “negligence or a lack of diligence on the part of corporate management” not willful). 

9 This is largely why the Secretary’s reliance on Great Lakes Packaging Corp., 18 BNA OSHC 

2138, 2141-42 (No. 97-2030, 2000), in which the Commission found that an employer’s failure to 

obtain annual audiograms was willful, is misplaced. The violation in Great Lakes was willful 

because the employer failed to obtain audiograms after being informed five separate times by its 

insurance company over the course of a year that OSHA required it to do so. Id. at 2139-42. That 

evidence “clearly show[ed]” that the company both “knew of OSHA’s requirement to conduct 

audiometric testing and its own failure to do so.” Id. at 2142 (emphasis added). In contrast, Home 

Rubber was informed of OSHA’s audiogram requirements a single time—following an audit that 

it voluntarily sought from the state—and it responded by adopting a hearing protection policy and 

conducting testing. 

10 Commissioner Laihow also finds that the company’s initial safety and compliance efforts, as 

well as the provision of hearing protection to all of its mill operators, weigh against a plain 

indifference finding. Chairman Attwood agrees that plain indifference was not established, but 

finds that the company’s requirement that Mill Three operators use the provided hearing protection 

should be accorded no positive weight because Home Rubber never required the same of its 

Chrome Mill operators. 

11 To be sure, the length of time that passed without testing shows that Home Rubber could, with 

the exercise of reasonable diligence, have learned of its failure to test. But establishing that an 

employer should have known of a violative condition for the purpose of proving the knowledge 

element of the Secretary’s case is not the same as establishing that it willfully allowed that violative 

condition to occur. See Branham Sign Co., 18 BNA OSHC at 2135 (“[A] lack of diligence that 

supports a finding of constructive knowledge . . . does not establish willfulness.”) 
8 

In sum, the Secretary has not shown that Home Rubber acted with a willful state of mind 

when it stopped obtaining audiograms for its mill operators. We therefore reverse the judge’s 

characterization of these violations as willful. 

B. Other-Than-Serious 

On review, Home Rubber argues that the audiogram violations should be characterized as 

other-than-serious, though it offers no arguments in support of that position. See 29 U.S.C. 

§ 666(a)-(c) (classifying violations into three categories for penalty assessment purposes: willful 

or repeated, serious, and not serious). Because the record here clearly establishes that both 

violations should be characterized as serious, we reject the company’s unsupported claim. 

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

harm could result” from the violative condition. 29 U.S.C. § 666(k). This means that the Secretary 

must show that death or serious physical harm is a probable consequence if an accident results 

from the violative condition—he is not required to show that an accident is itself likely. Anaconda 

Aluminum Co., 9 BNA OSHC 1460, 1474-77 (No. 13102, 1981); see also Sec’y of Labor v. Trinity 

Indus., Inc., 504 F.3d 397, 401 (3d Cir. 2007). In Miniature Nut and Screw Corp., 17 BNA OSHC 

1557, 1558-59 (No. 93-2535, 1996), the Commission found that hearing loss constitutes serious 

physical harm, and rejected the company’s argument that its failure to perform audiometric testing 

should not be characterized as serious, stating: 

An employer’s failure to conduct audiometric testing may allow hearing loss to go 

undetected, thereby preventing the employee and his employer from becoming 

aware of the situation and taking appropriate remedial measures. We therefore find 

that the failure to make audiometric tests available to employees can result in 

serious physical harm. 

Here, Home Rubber does not dispute the compliance officer’s testimony that the amount 

of noise produced by its mills could cause operators to suffer “hearing loss, which is something 

cumulative” that “happens over time,” and that this risk was increased because they operate the 

mills several times per week, and sometimes for an entire 8-hour shift. Further, the audiogram 

records that Home Rubber produced show that, in 2002, one employee suffered a “standard 

threshold shift,” meaning the employee’s hearing declined from their 2000 baseline audiogram, 

and the reviewing physician noted that they would need to wear hearing protection when exposed 

to noise levels above 85 decibels. See 29 C.F.R. §§ 1910.95(g)(7)(i), (g)(10)(i) (requiring that 

baseline and annual audiograms be compared to determine whether a “standard threshold shift” 
9 

has occurred, which is a “change in hearing threshold” of “10 dB or more at 2000, 3000, and 4000 

Hz in either ear”). Since the unrebutted evidence shows that the noise levels at Home Rubber’s 

facility could cause employees to suffer permanent hearing loss, we characterize the audiogram 

violations as serious. 

C. Penalty

In assessing a penalty, the Commission must consider “the size of the business of the 

employer being charged, the gravity of the violation, the good faith of the employer, and the history 

of previous violations.” 29 U.S.C. § 666(j). The most important of these factors is typically the

violation’s gravity, which involves consideration of “the number of exposed employees, the 

duration of their exposure, whether precautions could have been taken against injury, and the 

likelihood of injury.” Integra Health Mgmt., Inc., No. 13-1124, 2019 WL 1142920, at *73 

(O.S.H.R.C., Mar. 4, 2019). The maximum penalty for a serious violation at the time of the subject 

citation’s issuance was $12,471. Dep’t of Labor Federal Civil Penalties Inflation Act Catch-Up 

Adjustments, 81 Fed. Reg. 43,430, 43,439 (July 1, 2016); Dep’t of Labor Federal Civil Penalties 

Inflations Adjustment Act Annual Adjustments for 2017, 82 Fed. Reg. 5,373, 5,374 (Jan. 18, 

2017). 

On review, neither party addresses the penalty amount for the grouped audiogram 

violations regardless of their characterization. Before the judge, the Secretary argued that the 

$72,845 proposed penalty accounted for the risk of irreversible hearing loss and included a 40% 

reduction from the maximum penalty for a willful violation due to Home Rubber’s small size. 

Home Rubber did not discuss the penalty below. In assessing the Secretary’s proposed penalty, 

the judge stated that the violation’s gravity was “greater” due to “the risk of hearing loss from 

operating mills for a full shift, several times a week” and agreed that a 40% reduction from the 

maximum penalty was warranted for size. The judge did not address the good faith and prior 

history penalty factors.

We agree with the judge’s assessment that the gravity of these violations is high given the 

compliance officer’s unrebutted testimony that employees were at risk of suffering permanent 

hearing loss. We also agree with the judge that a penalty reduction is appropriate due to Home 

Rubber’s small size, with only 36 employees at the time of the inspection. Although Home Rubber

did provide hearing protection to mill operators and also conducted audiometric testing for a few

years pursuant to its hearing policy, we find a reduction on the basis of good faith is not warranted 
10 

given its failure to obtain any audiograms for over a decade and failure to point the Commission 

to any evidence regarding its safety program overall. See Elliot Constr. Corp., 23 BNA OSHC 

2110, 2119 (No. 07-1578, 2012) (company’s “significant failings” negated any penalty reduction 

for good faith); Roberts Pipeline Constr., Inc., 16 BNA OSHC 2029, 2030 (No. 91-2051, 1994) 

(Commission not obligated to “develop arguments not articulated by the parties” regarding good 

faith or other penalty factors). As for prior history, the compliance officer testified that Home 

Rubber was previously cited for violations following an OSHA inspection in 2012. But the 

compliance officer did not say how that citation was resolved, so we do not consider it. See 

Monroe Drywall Constr., Inc., 24 BNA OSHC 1209, 1211 (No. 12-0379, 2013) (where “record 

contains no information” about prior violation history, that factor “warrants neither a reduction nor 

an increase in the penalties”). For these reasons, we find it appropriate to assess a $10,000 penalty

for the grouped audiogram violations. 

II. Merits of Serious Citation 1, Items 5, 9, 13, 15(a)-(d), and 18 

To prove the violation of a standard, the Secretary must establish that: (1) the standard 

applies; (2) the terms of the standard were violated; (3) at least one employee had access to the 

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

have known, of the violative condition. Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 

78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). We address each citation item 

in turn below. 

A. Item 5: 29 C.F.R. § 1910.147(c)(6)(i) (periodic inspection of energy control

procedure)

The cited LOTO provision requires employers to conduct a “periodic inspection of [their] 

energy control procedure at least annually.” 29 C.F.R. § 1910.147(c)(6)(i). The Secretary alleges 

that Home Rubber failed to conduct the required inspections of its energy control procedure for 

equipment in its mill department. The judge agreed, citing plant manager Bole’s testimony that 

he had only sometimes inspected the procedure without specifying how often he had done so. On 

review, Home Rubber concedes that it did not conduct the required annual inspections but argues 

that there is no evidence its energy control procedure was “deficient” or would have been improved 

“had there been annual reviews.” 

The company, however, cites no legal authority to support the notion that a violation for 

failing to perform annual inspections of an energy control procedure cannot be affirmed unless the 
11 

Secretary proves the procedure was deficient. The plain language of the cited provision requires 

annual inspections, not merely inspections if the procedure is deficient. See Gen. Motors Corp., 

CPCG Oklahoma City Plant, 22 BNA OSHC 1019, 1028 (No. 91-2834E, 2007) (consolidated) 

(stating that the LOTO standard “expressly requires an employer to conduct periodic inspections 

‘to correct any deviations or inadequacies’ in the employer’s energy control procedure,” and 

affirming a violation based on the employer’s failure to do so without regard to whether the 

procedure was deficient) (quoting 29 C.F.R. § 1910.147(c)(6)(i)(B)). Because Home Rubber 

admits that it did not comply with the terms of the cited provision, does not challenge any other 

element of the Secretary’s prima facie case, and has not otherwise identified any error in the 

judge’s decision, we affirm the citation item. 

B. Item 9: 29 C.F.R. § 1910.178(l)(4)(iii) (evaluation of powered industrial truck 

operator’s performance)

The cited provision requires that employers conduct “[a]n evaluation of each powered 

industrial truck operator’s performance . . . at least once every three years.” 29 C.F.R. 

§ 1910.178(l)(4)(iii). The Secretary alleges that Home Rubber failed to evaluate the performance 

of forklift drivers working in its mill department and warehouse at least every three years. The 

judge agreed and affirmed the citation item. 

On review, Home Rubber does not directly claim that it evaluated the performance of its 

forklift drivers at least every three years or challenge any other element of the Secretary’s prima 

facie case. It states only that its facility is “not that large” and “the reality is everybody is subject 

to observation.” But as the Secretary points out, such casual or informal observations are 

insufficient under the plain language of the cited provision, which clearly contemplates an 

intentional and specifically directed evaluation of a forklift operator’s performance that is in 

addition to the ongoing, casual observations that occur in most workplaces. See 29 C.F.R. 

§ 1910.178(l)(6) (requiring the employer to “certify” that the tri-annual evaluation has taken place, 

with the certification including “the name of the operator . . . the date of the evaluation, and the 

identity of the person(s) performing the training or evaluation”).12 Because Home Rubber does 

12 Home Rubber was also issued an other-than-serious citation for failing to comply with this 

certification requirement, which the judge affirmed. This violation was not raised by Home 

Rubber in its petition for discretionary review and is not at issue on review. 
12 

not claim that it performed the more formal and specifically directed evaluations contemplated by 

the standard, or otherwise point to any error in the judge’s decision, we affirm the citation item. 

C. Item 13: 29 C.F.R. § 1910.219(i)(2) (covering bolts extending beyond flange of 

shaft coupling)

The cited provision states: 

Shaft couplings shall be so constructed as to present no hazard from bolts, nuts, 

setscrews, or revolving surfaces. Bolts, nuts, and setscrews will, however, be 

permitted where they are covered with safety sleeves or where they are used parallel 

with the shafting and are countersunk or else do not extend beyond the flange of 

the coupling. 

29 C.F.R. § 1910.219(i)(2). The Secretary alleges that a rotating shaft on the company’s Kobe 

Warm-up Mill had unguarded bolts that extended beyond the flange of a coupling, and that this 

exposed employees to the risk of their clothing becoming caught on the bolts and the employee 

being pulled into the mill’s rotating parts. On review, Home Rubber does not dispute that these

bolts lacked guarding but argues that the Secretary failed to prove any employees had access or 

were likely to have access to the unguarded bolts.13 

In the absence of “actual exposure,” as is the case here, the Secretary can establish the 

exposure element of an alleged violation by showing that it was reasonably predictable “either by 

operational necessity or otherwise (including inadvertence), that employees have been, or will be 

in the zone of danger.” See Nuprecon, LP, 23 BNA OSHC 1817, 1818 (No. 08-1037, 2012) 

(citation omitted). The “zone of danger” in this case is the physical area surrounding the unguarded 

rotating bolts where an employee’s clothing or body parts could become caught. See Dover High 

Performance Plastics, Inc., No. 14-1268, 2020 WL 5880242, at *3 (O.S.H.R.C., Sept. 25, 2020) 

(zone of danger for unguarded rotating machine parts was the “area surrounding the rotating [parts] 

13 To the extent Home Rubber is arguing that the Secretary was required to prove that the bolts 

posed a hazard to establish a violation, that argument fails because the standard itself presumes 

that protruding bolts pose a hazard: “Bolts, nuts, and setscrews will, however, be permitted where 

they are covered with safety sleeves or where they are used parallel with the shafting and are 

countersunk or else do not extend beyond the flange of the coupling.” 29 C.F.R. § 1910.219(i)(2). 

This presumes that protruding bolts without safety sleeves that are not countersunk or that 

otherwise extend beyond the flange of the coupling, like those on the Kobe Warm-up Mill, pose a 

hazard. See Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1073 n.4 (No. 93-1853, 1997) 

(when “specification standard” sets forth specific design requirements, “proof of 

noncompliance . . . establishes the existence of a hazard”).
13 

where contact may be possible”); KS Energy Servs., Inc., 22 BNA OSHC 1261, 1264 (No. 06-

1416, 2008) (internal citation omitted) (defining the “zone of danger” as the area “surrounding the 

violative condition that presents the danger to employees which the standard is intended to 

prevent”). 

In finding it was reasonably predictable that Home Rubber’s employees would enter the 

zone of danger, the judge stated that they “constantly bathed” the gears of the Kobe Warm-up Mill 

with oil and had placed a bucket they used to do so on the floor “directly in front” of the shaft with 

the protruding bolts, indicating that they worked “in close proximity” to the bolts. The judge also 

found that employees would come close to the bolts when walking past the mill during its 

operation, citing a video showing an employee walk past the machine while it was running. On 

review, the Secretary defends the judge’s findings, claiming they are supported by testimony from 

the compliance officer and Balka, as well as the video and photographs. Home Rubber disputes 

the judge’s finding, arguing that the compliance officer “was unable to identify any reason why an 

employee would be in the area of the machine that she identified as problematic,” and could only 

“speculate[] that an employee might be able to get within a foot of the area.” 

We agree with Home Rubber that the Secretary has not established that employees have 

been or are reasonably likely to enter the zone of danger posed by the rotating bolts. It is true that 

photographs show a bucket on the floor near the shaft with the bolts, and that Balka said employees 

use the bucket to add oil to the mill, but there is no evidence that the machine is running (and the 

shaft rotating) when employees do so.

14 See Fabricated Metal Products, Inc., 18 BNA OSHC 

1072-74 n.7 (No. 93-1853, 1997) (access to machine’s unguarded moving parts not established 

absent evidence that employee proximity posed risk). Indeed, Balka testified that his “best guess” 

was that the machine would normally be off when employees are adding oil, and only turned on

14 The compliance officer’s testimony sheds no light on this issue. After being asked “how close 

the employees got to the rotating parts,” the compliance officer responded: “Probably about a 

foot. There was a bucket in front of the area. It was unclear what the bucket was used for . . . .” 

And when asked, “what would cause an employee to be in the area” of the rotating bolts, the 

compliance officer replied: 

I don’t know. They have buckets. But if you turn to page 5 of 5 of Exhibit [C-19], 

there’s a bucket directly in front of it. Looking at photo number 22, there’s another 

bucket on top of the machine, placing them within about a foot distance from this 

rotating shaft. 
14 

“for a little bit” afterward to check the oil level. It is also unclear where the oil fill opening is 

located on the large machine or how close employees are to the bolts when adding oil. Nor is there 

any evidence that employees wear loose-hanging clothing that could fall into or get caught by the 

rotating bolts while doing this task, or evidence of incidents involving machines at other worksites 

with similarly situated rotating shafts. Finally, the record does not support the judge’s finding that 

employees are “constantly” adding oil to the machine—the only evidence regarding frequency is 

from Balka who testified that he did not think oil was added on a daily basis. 

As for employees walking by the machine, the compliance officer testified that they would 

regularly come within a foot of the rotating bolts, but she did not say how she arrived at that 

measurement, and we find it implausible for two reasons. First, Balka testified that the “closest 

bolt” on the shaft is about 15 inches inward away from the bottom of the machine, which rests on 

a steel beam. This is consistent with the compliance officer’s estimate that the bucket in front of 

the shaft was “probably about a foot” away from the “rotating parts” of the machine. Thus, for 

employees to even come within a foot to 15 inches of the rotating bolts, they would need to 

essentially brush up against the frame of the machine as they walked past. 

Second, the photographs and video show a large oil barrel in front of the machine near the 

shaft. To come within a foot to 15 inches of the bolts while walking past, an employee would not 

only need to brush up against the machine, but would then have to immediately step away from 

the machine to avoid the barrel (if coming from the side opposite the barrel), or would need to 

immediately step towards the machine after passing the barrel (if coming from the other side). See 

Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1422 (No. 89-553, 1991) (exposure to unguarded 

nip points not established where, “in order for employees to be exposed to a hazard while merely 

walking past . . . , they would have to deliberately turn from the aisle into the alcove, walk 

alongside the length of the folder belt, and then turn again at the opposite end of the alcove to 

reenter the aisle”). It is illogical to suppose that an employee would walk past the machine in such 

a manner, particularly where one of the videos actually depicts an employee walking past the 

machine and staying far enough away to avoid the barrel. 

In sum, we find that the Secretary has not shown it was reasonably predictable employees 

would enter the zone of danger and, therefore, we vacate the citation item. 
15 

D. Items 15(a)-(d): 29 C.F.R. §§ 1910.303(b)(2), (b)(7)(iv) (general electrical), 

1910.305(b)(1)(ii), (b)(2)(i) (wiring methods, etc.)

The Secretary alleges that Home Rubber violated four provisions within Subpart S 

(“Electrical”) of Part 1910. Specifically, the Secretary claims that: (a) a receptacle designed to be 

mounted to a surface was used as a portable extension cord to power fans, in violation of 29 C.F.R 

§ 1910.303(b)(2), which requires “[l]isted or labeled equipment” to be “installed and used in 

accordance with any instructions included in the listing or labeling”; (b) a junction box had a 

broken conduit exposing the wires within it, in violation of 29 C.F.R. § 1910.303(b)(7)(iv), which 

states that there “shall be no damaged parts that may adversely affect safe operation or mechanical 

strength of the equipment, such as parts that are broken, bent, cut . . . .”; (c) a receptacle had an 

opening at its top, in violation of 29 C.F.R. § 1910.305(b)(1)(ii), which states that “[u]nused 

openings in cabinets, boxes, and fittings shall be effectively closed”; and (d) a receptacle did not 

have a cover, in violation of 29 C.F.R. § 1910.305(b)(2)(i), which states that “[a]ll pull boxes, 

junction boxes, and fittings shall be provided with covers identified for the purpose.” 

On review, Home Rubber does not challenge any element of the Secretary’s prima facie 

case for these violations but argues that Items 15(b)-(d) should be vacated because they are 

duplicative of Item 15(a) in that they involve the same “factual scenario”: a 2x4 inch receptacle. 

The Secretary responds that the violations are not impermissibly duplicative because they cannot 

be abated by the same action. According to the Secretary, the four violations involved 3 different 

electrical devices—two separate receptacles and a junction box. 

We agree with the Secretary. Under Commission precedent, violations are not duplicative 

if “the abatement of one of the violative conditions . . . would not have abated the other violative 

condition.” N. E. Precast, LLC, 26 BNA OSHC 2275, n.11 (No. 13-1169, 2018) (consolidated)

(internal citation omitted), aff’d, 773 Fed. App’x. 70 (2d Cir. 2019) (summary order).

15 Each 

violation here requires a distinct abatement method, such that the abatement of any one item would 

not abate any of the others. Item 15(a) requires a receptacle to be mounted to a wall; Item 15(b) 

requires a broken conduit in a junction box to be repaired; Item 15(c) requires an opening in the 

15 Chairman Attwood notes that for the reasons stated in her dissenting opinion in N. E. Precast, 

she disagrees with the test for duplicativeness set forth in that decision. 26 BNA OSHC at 2283-

94 (Attwood, Commissioner, dissenting). However, because she concludes that the separate 

citation items at issue here do not violate due process, she agrees that they are not duplicative. 
16 

receptacle also at issue in Item 15(a) to be closed; and Item 15(d) requires a cover to be added to 

another receptacle. See, e.g., Gen. Motors Corp., 22 BNA OSHC at 1024 (requirement to establish 

an energy control program not duplicative of requirement to implement specific components of 

that program because “establishing a fully compliant energy control program would not abate a 

failure to implement the components of that program, nor would implementation of required 

energy control procedures abate a failure to establish a program”). We therefore reject Home 

Rubber’s claim and affirm all four citation items. 

E. Item 18: 29 C.F.R. § 1910.1030(f)(2)(i) (Hepatitis B vaccination) 

The cited provision requires that a Hepatitis B vaccination be “made available . . . within 

10 working days of initial assignment to all employees who have occupational exposure [to blood 

or other potential infectious materials] . . . .” 29 C.F.R. § 1910.1030(f)(2)(i). The Secretary 

alleges that Home Rubber failed to offer the Hepatitis B vaccination to two maintenance 

employees within 10 days after they were assigned to clean up blood from the worker whose hand 

was injured. The judge found that at least one of the employees was not timely offered the 

vaccination and affirmed the violation.16

On review, Home Rubber does not dispute that the cited provision applies here but 

contends that it offered the vaccination to both employees involved in cleaning up the blood. The 

company does not state, however, when it offered it to these employees, and does not challenge 

the judge’s finding that it failed to timely offer it to at least one of them. Because Home Rubber 

does not dispute that it failed to timely offer the Hepatitis B vaccination to at least one employee 

as required by the standard, or otherwise identify any error in the judge’s decision, we affirm the 

citation item. 

III. Characterization & Penalty – Serious Citation 1, Items 5, 9, 15(a)-(d), and 18 

As discussed above, a violation is “serious” if death or serious physical harm is a probable 

consequence if an accident results from the violative condition; the Secretary is not required to 

show that an accident itself is likely. 29 U.S.C. § 666(k); Anaconda Aluminum Co., 9 BNA OSHC 

16 The compliance officer testified that both Balka and Bole told her that the vaccination had not 

been offered to one employee. And Balka acknowledged as much at the hearing, stating that the 

employee’s signed statement declining the vaccination “was not, I understand, timely . . . .” See 

29 C.F.R. § 1910.1030(f)(2)(iv) (employees who decline vaccination must sign statement included 

in Appendix A to the standard). 
17 

at 1474-77. On review, Home Rubber repeatedly misapplies this straightforward test and makes 

a variety of arguments as to why these violations should not be characterized as serious. We reject 

all of these arguments given unrebutted evidence in the record that death or serious physical harm 

is probable if an accident were to occur as a result of each affirmed violation.17 We therefore

characterize these violations as serious. 

On review, Home Rubber does not challenge the $21,202 total penalty assessed by the 

judge for these items. Therefore, we assess the same penalty amounts for each item.

18 See, e.g., 

KS Energy, 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (assessing proposed penalty 

where not challenged). 

17 With respect to Item 5 (Periodic inspection of energy control procedure), there is unrebutted 

testimony from the compliance officer that unexpected energization of the machines in the mill 

department could result in serious injuries such as amputations or broken bones, and that this risk 

was amplified because the machines use several different energy types, such as electric, hydraulic, 

and pneumatic. 

With respect to Item 9 (Evaluation of forklift operator performance), there is unrebutted testimony 

from the compliance officer that forklift accidents can result in broken bones, lacerations, and 

amputations. This testimony is supported by the cited provision’s preamble. See 63 Fed. Reg. 

66,238, 66,238 (Dec. 1, 1998) (stating the cited requirement is “intended to reduce the number of 

injuries and deaths that occur as a result of inadequate training”).

With respect to Items 15(a)-(d) (Electrical violations), there is unrebutted testimony from the 

compliance officer that the violations could result in electric shock, first-degree burns, and smoke 

inhalation in the event of a fire. This testimony is also supported by the preamble to the electrical 

installations standard. 72 Fed. Reg. 7,136, 7,136 (Feb. 14, 2007) (stating that electrical violations 

can result in electric shock, burns, fires, and explosions). 

With respect to Item 18 (Hepatitis B vaccination), there is unrebutted testimony from the 

compliance officer that the violation exposed employees to a risk of acquiring Hepatitis B. And 

the preamble to the final standard states that Hepatitis B can result in “serious liver” diseases, with 

about one third of infected individuals experiencing “severe” symptoms including jaundice, 

extreme fatigue, anorexia, nausea, and abdominal pain, and some developing “Fulminant hepatitis” 

which is “85% fatal even with the most advanced medical care.” 56 Fed. Reg. 64,004, 64,009 

(Dec. 6, 1991). 

18 Specifically, we assess a penalty of $6,236 for Item 5, $4,988 for Item 9, $3,742 for Items 15(a)-

(d), and $6,236 for Item 18. 
18 

IV. CONCLUSION

For all these reasons, we characterize Willful Citation 2, Items 1(a)-(b) as serious and 

assess a penalty of $10,000 for the grouped violations. We also affirm Serious Citation 1, Items 

5, 9, 15(a)-(d), and 18, and assess a total penalty of $21,202 for these violations. Finally, we vacate 

Serious Citation 1, Item 13. 

SO ORDERED.

 /s/ 

 Cynthia L. Attwood 

 Chairman 

/s/ 

 Amanda Wood Laihow 

Dated: August 26, 2021 Commissioner
1 

 

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. 17-0138

Home Rubber Company, LP,

 Respondent.

APPEARANCES: 

 

Terrance Duncan, Esquire 

U.S. Department of Labor 

New York, New York 

For the Secretary

 Randall Schauer, Esquire 

 Fox Rothschild, LLP 

Exton, Pennsylvania 

For the Respondent 

BEFORE: Carol A. Baumerich

 Administrative Law Judge

DECISION AND ORDER

On October 27, 2016, the Occupational Safety and Health Administration (OSHA) issued 

a Citation and Notification of Penalty to Home Rubber Company, LP (Home Rubber or 

Respondent). Home Rubber filed a timely notice of contest bringing this matter 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. § 659(c) (the Act). 
2 

OSHA opened an investigation at Home Rubber’s facility in response to a May 6, 2016 

accident that seriously injured an employee. As a result, OSHA cited Home Rubber for thirty 

violations with a total proposed penalty of $180,592. Of the cited violations, two were classified 

as willful, twenty-three as serious, and five as other-than-serious. 

Home Rubber was cited for violations of the noise exposure, housekeeping, chemical 

storage, fire extinguisher, lockout-tagout, machine guarding, powered industrial truck, electrical, 

bloodborne pathogen, accident reporting, training, recordkeeping and hazard communications 

standards. In particular, the Secretary alleges that Home Rubber exposed its mill operators to 

amputation and other injuries, because the ingoing nip points on its rubber mills were not 

guarded, and willfully ignored requirements to protect its mill operators from hearing loss. 

 A two-day hearing was held in Trenton, New Jersey on April 9-10, 2018. Five witnesses 

provided testimony: OSHA Compliance Officer (CO) Marie Lord, Steven Anderson (analytical 

chemist for OSHA), Richard Balka (owner and president of Home Rubber), James Bole (plant 

manager for Home Rubber), and William Howard (Secretary’s expert). Both parties filed posthearing briefs, including reply briefs. 

Respondent asserted three primary arguments. First, Respondent argues that guarding the 

ingoing nip points on its mills was infeasible and the Secretary did not prove guarding was 

feasible. (R. Br. 23-28). As discussed below, the burden for the affirmative defense of 

infeasibility rests with Respondent. 

Secondly, Respondent argues the lack of attention to safety training and oversight was 

due to turnover and vacancies in the safety and compliance manager’s position since 2006. (R. 

Br. 1). As discussed below, the argument is rejected. 

Finally, Respondent asserts the willful and serious citations should be reclassified to

other-than-serious if they are affirmed. The classification for each citation item is discussed 

below. 

Key Issues

The key issues to resolve are: 

1. Did Home Rubber willfully violate the requirements to provide audiometric testing for 

its employees operating Mill Three? 

2. Was it infeasible to guard the ingoing nip points on the Chrome Mill, Kobe Mill, Mill 

Three, and Mill One? 
3 

3. Are the willful and serious violations properly classified? 

4. Did the Secretary prove his prima facie case for all thirty alleged violations?

For the reasons discussed below, the citation items are affirmed and a total penalty of

$180,592 is assessed. 

JURISDICTION

Based upon the record, I find that at all relevant times Respondent was engaged in a 

business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) 

of the Act. I also find that the Commission has jurisdiction over the parties and subject matter in 

this case. (Tr. 9-11). 

FACTS

The accident

Home Rubber is a small specialty rubber manufacturer with 36 employees that has been 

in business since 1881. (Tr. 342, 344). Home Rubber manufactures specialty rubber products, 

including hoses, belts, tubes, gaskets, lathe-cut, and sheet rubber to its customers’ specifications. 

(Tr. 341-42). 

Just before noon on Friday, May 6, 2016, employee J.L.1 was processing rubber on the 

Chrome Mill when his left hand was pulled into the ingoing nip point at the mill’s rollers.

2 (Tr. 

426-27; Ex. P-5). J.L. immediately pulled the machine’s brake cord to reverse the roller and 

free his hand. (Tr. 28; Ex. P-5). The maintenance manager, R.B., took Employee J.L. to the 

factory’s lab area, where R.B. applied pressure to the wound. (Tr. 427). Emergency services 

were notified, and the employee was taken to the hospital by ambulance. (Tr. 427). 

After J.L. was taken to the hospital, the maintenance manager, R.B., and maintenance 

employee, V.D., cleaned up the blood from the accident. (Tr. 334-35, 427-28). Richard Balka, 

company owner, was nearby and made sure the area was cleaned with bleach. (Tr. 428). The 

maintenance manager made sure the cleaning debris was sealed in a trash bag. (Tr. 428). 

Mr. Balka went to the hospital later that afternoon and stayed until J.L. was taken to 

surgery. (Tr. 428-29). On Sunday, Mr. Balka learned that four of J.L.’s fingers were so 

1

 In the interest of privacy, the injured employee will be referred to as J.L. The maintenance manager will 

be referred to as R.B. The maintenance employee will be referred to as V.D. 

2 Company owner, Richard Balka was upstairs, in his office, when the accident occurred. (Tr. 426-27). 
4 

damaged they had been surgically amputated. (Tr. 429; Ex. P-17, p. 3). OSHA was notified of 

the hospitalization on Monday, May 9, 2016. (Tr. 102). 

Home Rubber’s product 

Home Rubber’s specialty products were manufactured on four of Home Rubber’s mills: 

Mill One, Mill Three, the Chrome Mill, and the Kobe Warm-up Mill. (Ex. P-17, p. 3). Five 

employees operated these mills. (Tr. 344-45). 

Most of Home Rubber’s mills were in the main mill room, which was about 150 feet long 

by 88 feet across. (Tr. 371). The frequency of a mill’s use was related to the customer order 

being processed. (Tr. 343-44). For example, Mill Three was used to produce most of the rubber 

compounds using carbon black. (Tr. 370, 376). Mill One was used to produce compounds 

without carbon black. (Tr. 371). A mill could be used continuously for weeks and then not used 

for a few weeks. (Tr. 344). 

Each mill had two large rollers that rotated toward each other to create an ingoing nip 

point. (Tr. 410, 412). The roller on a mill was about 20 inches in diameter. (Tr. 410, 423). The 

two rollers moved at slightly different speeds to create friction. (Tr. 410). The friction created 

heat which broke down the ingredients to create a rubber compound. (Tr. 411). A typical batch 

of rubber compound used about 145 pounds of natural rubber and took about 20-25 minutes to 

mix. (Tr. 415). 

Company ownership and management

In 1996, Richard Balka purchased Home Rubber along with two partners, Steve Kelly 

and Norman Zigler. (Tr. 345). Mr. Kelly was responsible for sales, Mr. Balka was responsible 

for production, and Mr. Zigler was responsible for safety, compliance, and human resources. 

(Tr. 346). In 2006, Mr. Balka purchased Mr. Zigler’s share of the company and became the sole 

owner. (Tr. 346). Mr. Kelly had left the business sometime before 2006. (Tr. 346). 

When Mr. Zigler left the company in 2006, Donald Slowicki took over safety and 

compliance duties. (Tr. 346). Mr. Slowicki had been a Home Rubber employee since 1997. 

(Tr. 347). Upon Mr. Slowicki’s death in 2012, his assistant, Michael Strasser, took over the 

safety and compliance duties. (Tr. 347). Mr. Strasser was the safety and compliance manager 

for about 14 months. (Tr. 347). 

Home Rubber did not have a safety and compliance manager for some time after Mr. 

Strasser left. (Tr. 346). Tim Fisher was eventually hired as the safety and compliance manager 
5 

and worked for Home Rubber for about two years; he was responsible for compliance with 

OSHA standards at the time of the May 2016 inspection. (Tr. 347, 353). Mr. Fisher reported

directly to Mr. Balka. (Tr. 348). 

Jim Bole was Home Rubber’s plant manager. (Tr. 347-48). The maintenance manager 

for Home Rubber was R.B. (Tr. 28). 

The 2016 OSHA inspection 

In response to the May 6 accident, CO Marie Lord opened an investigation of Home 

Rubber. She visited Home Rubber’s facility on May 16, 20163 and on June 2, 2016. (Tr. 23, 

43). The CO observed and photographed conditions throughout the facility. The CO observed 

electrical cords, a chemical storage area, forklifts, and various machines. She recorded video of 

employees working at the mills. (Tr. 196-207). The CO interviewed employees and 

management. (Ex. P-4). Mr. Balka provided records of safety policies, training records and 

other documents that were stored in Mr. Zigler’s old office. (Tr. 351, 353, 426). 

While near the Chrome Mill, CO Lord found that she had to shout when speaking to Mr.

Balka, who was an arm’s length away. (Tr. 37). In her experience, this generally indicated a 

noise level over 85 decibels (dBA). (Tr. 37). She noticed the operator of the Chrome Mill 

wearing music-type headphones and was not using earplugs. (Tr. 38). She noted that Home 

Rubber did not require its employees to use hearing protection in the Chrome Mill room; Mill 

Three was the only area that required the use of hearing protection. (Tr. 38) 

On her June 2 visit, CO Lord conducted audiometric testing for the operators of the 

Chrome Mill and Mill Three. (Tr. 96; Ex. 29, p. 1). The employee operating the Chrome Mill

wore a dosimeter for 406 minutes that day. (Tr. 95-96; Ex. P-29, pp. 1, 6). The employee 

operating Mill Three wore a dosimeter for 480 minutes. (Tr. 95-96; Ex. P-29, pp. 1, 8). The

results showed that Mill Three operator had an exposure level at 91.8 dBA and that the Chrome 

Mill operator had an exposure level at 89.5 dBA. (Tr. 98-99; Ex. P-29, p. 3). 

 The CO observed significant dust accumulation on both her May 16 and June 2 visit to 

Home Rubber’s factory. (Tr. 30, 33, 36; Exs. P-6, P-7). She could see dust buildup on the walls, 

floors, machines, plastic curtains, and machine canopies. (Tr. 33-34, 36). The chemical safety 

data sheets provided by Mr. Balka showed some of the chemicals used in the rubber compounds 

3 References in this decision to May 16 mean May 16, 2016 and to June 2 mean June 2, 2016. 
6 

were either explosive or combustible in nature. (Tr. 35). The CO collected a dust sample and 

sent to it to OSHA’s Salt Lake Technical Center (SLTC) to test for combustibility and 

explosibility. (Tr. 27, 221-22). The results of the SLTC’s testing showed the dust had explosive 

properties. (Tr. 28-29, 243; Ex. P-39). 

Home Rubber’s 1999 noise audit 

In 1999, safety and compliance manager Zigler asked the state of New Jersey to conduct 

a voluntary noise audit. Three areas were tested for excessive noise levels. The results showed a 

noise level at Mill Three that required an operator to use hearing protection.4 (Tr. 40-41, 349; 

Ex. P-30, p. 12). The state’s testing report explicitly stated that OSHA’s requirements at 29 CFR 

§ 1910.95 (occupational noise exposure) must be followed and the report stated that annual and 

baseline audiograms were required for Mill Three operators and must be documented. Id. 

Further, the report stated that a copy of OSHA’s noise standards was provided to Home Rubber 

during the audit. (Ex. P-30, p. 13). For a few years after the 1999 audit, Home Rubber provided 

audiograms and hearing protection for any employee that worked at Mill Three. (Tr. 349). The 

Chrome Mill was added to the production floor in 2007 so it was not evaluated during the audit. 

(Tr. 342-43, 354-55). 

ANALYSIS

To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited 

standard applies; (2) the terms of the standard were violated; (3) one or more 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. Astra Pharm. Prods., Inc., 9 BNA 

OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). 

THE CITATIONS 

Applicability — All citation items

Home Rubber used chemicals, forklifts, mill machines, and electrical equipment in its 

rubber production. Home Rubber was cited for safety violations related to housekeeping, noise, 

injury reporting, electrical, forklifts, compressed air settings, bloodborne pathogens (exposure 

control), and hazard communications. I find the standards cited are applicable to Home Rubber 

and this element of the Secretary’s case is proved. 

4

 The Chrome Mill was not at the factory in 1999; it was added in 2007. (Tr. 342-43, 354-55) 
7 

Knowledge — All citation items

To establish his prima facie case, the Secretary must prove the employer either knew, or 

with the exercise of reasonable diligence could have known, of the violative condition. Revoli 

Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). The employer's knowledge is 

directed to the physical condition that constitutes a violation. Phoenix Roofing, Inc., 17 BNA 

OSHC 1076, 1079-1080 (No. 90-2148, 1995) (Phoenix). It is not necessary to show that the 

employer knew or understood the condition was hazardous. Id. 

Reasonable diligence for constructive knowledge includes the “‘obligation to inspect the 

work area, to anticipate hazards to which employees may be exposed, and to take measures to 

prevent the occurrence”’ of hazards. Pub Utils. Maint., Inc. v. Sec'y, 417 F. Appx 58, 63 (2d Cir. 

2011) (unpublished) (PUMI) (citing North Landing Line Constr. Co., 19 BNA OSHC 1465, 

1472 (No. 96-721, 2001) (NLLC)).

Knowledge is imputed to the employer “through its supervisory employee.” American 

Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (AEDC) (citations 

omitted). The formal title of an employee is not controlling. Id. The Commission has imputed 

the knowledge of crew leaders and foremen. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 

(No. 96-1719, 2000) (citations omitted); see generally, Penn. Power & Light Co., 737 F.2d 350, 

357-58 (3d Cir. 1984) (crew leader is a supervisory employee). An employer has constructive 

knowledge of conditions that are plainly visible to its supervisory personnel. See Hamilton 

Fixture, 16 BNA OSHC 1073, 1091 (No. 88-1720, 1993) (Hamilton). 

Knowledge particular to each citation item is discussed below. For most of the citation

items, the violative condition was in plain view. According to Mr. Balka, managers were in the 

production area “all the time every day.” (Tr. 345). Plant manager, Mr. Bole, stated that he 

routinely travelled through the various departments. (Tr. 330). Mr. Bole and the maintenance 

manager told the CO they routinely inspected the facility for safety hazards. (Tr. 35-36). 

Generally, knowledge is proved because management employees were routinely in the 

production area for conditions that were in plain view or because Home Rubber had a written 

policy that mirrored OSHA’s requirement. 

Citation Classification – All citation items 

The citations at issue were classified as willful, serious, or other-than-serious. 

Respondent asserts that many of the willful and serious citation items should be classified as 
8 

other-than-serious because there was a low risk of harm and Home Rubber had promptly abated 

the violations. (R. Br. 3, 7, 17-22, 29-35, 37). 

A willful violation is “one committed ‘with intentional, knowing or voluntary disregard

for the requirements of the Act or with plain indifference to employee safety.” Burkes Mech., 

Inc., 21 BNA OSHC 2136, 2140 (No. 04-0475, 2007) (quoted cases omitted) (Burkes).

The Act states that “a serious violation shall be deemed to exist in a place of employment 

if there is a substantial probability that death or serious physical harm could result from a 

condition which exists, or from one or more practices, means, methods, operations, or processes

which have been adopted or are in use, in such place of employment unless the employer did not, 

and could not with the exercise of reasonable diligence, know of the presence of the violation.” 

Sec. 17(k) of the Act; 29 U.S.C. § 666(k). A serious classification is established upon 

determining that “a serious injury is the likely result should an accident occur.” Pete Miller, Inc., 

19 BNA OSHC 1257, 1258 (No. 99-0947, 2000). 

The Act does not define other-than-serious; however, the Commission has stated that an 

other-than-serious violation “is 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 Wharf & Warehouse Co., 

1 BNA OSHC 1219, 1222 (No. 1, 1973) (Crescent).5 As discussed below, I find the citations 

were properly classified as issued and have not downgraded the items cited as serious and 

willful. 

THE NOISE EXPOSURE VIOLATIONS

The analysis of the four citation items related to violations of the hearing protection 

standard (willful citation items 2.1a and 2.1b and serious citations items 1.2 and 1.3) follows. 

Willful Citations - Citation 2, Item 1a & Citation 2, Item 1b 

Citation 2, Item 1a alleged a violation of 29 C.F.R. § 1910.95(g)(5)(i). 

5 By contrast, a de minimis violation, “is one in which there is technical non-compliance with a standard 

but the departure from the standard bears such a negligible relationship to employee safety and health as 

to render inappropriate the assessment of a penalty or the entry of an abatement or order.” Keco Indus., 

Inc., 11 BNA OSHC 1832, 1834 (No. 81-1976, 1984); see also, Otis Elevator Co., 17 BNA OSHC 1167, 

1168 (No. 90-2046, 1995) (a de minimis violation is one where the deviation from the cited standard 

increases the risk of injury so slightly that the relationship of the violation to safety and health was not 

direct or immediate).
9 

(g) Audiometric testing program. . .. 

(5) Baseline audiogram. (i) Within 6 months of an employee's first exposure at or 

above the action level, the employer shall establish a valid baseline audiogram 

against which subsequent audiograms can be compared.

Citation 2, Item 1b alleged a violation of 29 C.F.R. § 1910.95(g)(6). 

(g) Audiometric testing program. . .. 

(6) Annual audiogram. At least annually after obtaining the baseline audiogram, 

the employer shall obtain a new audiogram for each employee exposed at or 

above an 8-hour time-weighted average of 85 decibels.

The Secretary alleges that mill operators exposed to noise above the action level6 had not 

received baseline audiograms within 6 months of the employee’s first exposure. The Secretary 

further alleges that mill operators exposed to noise above the action level had not received 

annual audiograms. (S. Br. 4-5). Respondent contends that, at most, it was unintentionally 

negligent in not providing the required audiometric testing for its employees. (R. Br. 13). 

For the following reasons, I find that the Secretary established violations of 29 C.F.R. § 

1910.95(g)(5)(i) and 29 C.F.R. § 1910.95(g)(6). 

The standard applied and employees were exposed. 

The June 2 audiometric monitoring showed employees who worked at the Chrome Mill 

and Mill Three were exposed to noise above the action level of 85 dBA. (Tr. 96; Ex. P-29, p. 3). 

Home Rubber was required to provide baseline and annual audiograms for employees working 

on the Chrome Mill and Mill Three. The cited standards apply. 

The five employees that operated the two mills at Home Rubber were required to have 

baseline and annual audiograms. Employees were exposed to the cited hazard. 

The terms of the standard were violated.

Respondent offered evidence of a few audiograms provided to mill operators in 2000 and 

2002. (Tr. 100-01, 353; Ex. P-30, pp. 6-10). The safety and compliance manager initially

responsible for obtaining the employees’ audiograms, Mr. Zigler, had left Home Rubber in 2006. 

(Tr. 96, 101). The CO determined that only one of the five mill operators, the injured employee, 

had received a baseline audiogram. (Tr. 96-97, 100-01; Ex. P-30, pp. 3, 6-10). Neither of the 

6 As defined in the Appendix to the cited standard, the action level is “[a]n 8–hour time-weighted average 

of 85 decibels measured on the A-scale, slow response, or equivalently, a dose of fifty percent.” 29 

C.F.R. § 1910.95, App. I. 
10 

two employees monitored on June 2 had received a baseline or annual audiogram. (Tr. 97, 101). 

One had worked for Home Rubber for about one year and the other had worked for Home 

Rubber for eleven years. (Ex. P-29, p. 3). Respondent does not dispute baseline and annual 

audiograms had not been provided to the operators of Mill Three and the Chrome Mill. (R. Br. 

13). 

I find Respondent did not provide baseline or annual audiograms and thus violated the 

cited standards. 

Home Rubber had knowledge of the hazard. 

The Secretary must prove “the employer knew or, with the exercise of reasonable 

diligence could have known of the hazardous condition.” PSP Monotech Ind., 22 BNA OSHC 

1303, 1305 (No. 06-1201, 2008) (PSP) (citations omitted). Knowledge is directed to the 

physical conditions that constitute the violation and does not require the employer to know or 

understand the condition was hazardous. Phoenix, 17 BNA OSHC at 1079-1080. 

 Home Rubber’s documents demonstrate knowledge that audiometric testing was 

necessary. Knowledge is also demonstrated through Home Rubber’s records of audiometric 

testing it conducted in 2000-2002. (Tr. 97, 100-01; Ex. P-30, p. 11). 

The 1999 noise audit results showed that employees operating Mill Three were exposed 

to noise levels above the action level. (Ex. P-30, p. 12). OSHA’s requirements for audiograms 

were provided to Respondent during the 1999 audit. (Ex. P-30, p.12). Mr. Zigler, the safety and 

compliance manager, received the audit report. The report remained available to company 

president, Mr. Balka, after Mr. Zigler’s departure. (Tr. 353-54). Home Rubber’s written Hearing 

Protection Policy was developed after the 1999 audit. (Tr. 346, 349-50, 353; Ex. P-30, pp. 6-10). 

The Policy stated that employees working on Mill Three would be provided baseline and annual 

audiometric tests. (Tr. 96, 350-52; Ex. P-30, p. 11). 

Mr. Zigler’s actual knowledge of the requirement for audiograms is imputed to 

Respondent. See Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d, 122 

F.3d 437 (7th Cir. 1997) (corporate knowledge is imputed from current and past agents). 

Further, Mr. Balka oversaw production and had been the owner of Home Rubber since 1996. 

(Tr. 340, 346). Mr. Balka knew that after the 1999 noise audit Mill Three operators were 

required to use ear protection. (Tr. 352-53). Mr. Balka admitted that it was likely he had 

reviewed the Hearing Protection Policy document when it was issued. (Tr. 351-52). Mr. Bole, 
11 

plant manager, knew that a noise protection plan had been developed in the past. (Tr. 330). 

Both Mr. Bole and Mr. Balka told the CO that the testing had stopped when a previous manager 

left the company many years before. (Tr. 96). Respondent had actual knowledge audiometric 

testing was required for the operators of Mill Three.

Further, Respondent had constructive knowledge that audiograms were needed for the 

operators of the Chrome Mill. The hazardous condition was readily apparent because the 

Chrome Mill was so loud that it was necessary to shout when having a conversation near the 

machine. See Hamilton, 16 BNA OSHC at 1091. (An employer has constructive knowledge of 

conditions that are plainly visible to its supervisory personnel). Yet, Mr. Balka took no action to 

determine if audiograms were needed to protect the Chrome Mill’s operators from hearing loss. 

(Tr. 355). See PUMI, 417 F. App’x at 63 (citing NLLC, 19 BNA OSHC at 1472) (constructive 

knowledge where employer did not make reasonably diligent actions to inspect, anticipate, or 

prevent hazardous condition). 

I find Respondent had knowledge that audiometric testing was required for operators of 

Mill Three and the Chrome Mill. 

Willful Classification

Respondent asserts a willful classification is not merited because it was merely

unintentionally negligent.7 (R. Br. 13). 

A willful violation is “one committed ‘with intentional, knowing or voluntary disregard 

for the requirements of the Act or with plain indifference to employee safety.” Burkes, 21 BNA 

OSHC at 2140; see also, Bianchi Trison Corp. v. Sec’y, 409 F.3d 196, 208 (3d Cir. 2005) 

(“Although the [OSH] Act does not define the term willful, courts have unanimously held that a 

willful violation of the [OSH] Act constitutes an act done voluntarily with either an intentional 

disregard of, or plain indifference to, the [OSH] Act's requirements.”). 

“The Secretary must show that the employer was actually aware, at the time of the 

violative act, that the act was unlawful, or that it possessed a state of mind such that if it were 

7

 Respondent relies on Great Lakes Packaging Corp., 1998 WL 558896, at *5-6 (No. 97-2030, 1998)

(ALJ) (finding two violations were other-than-serious) to support its argument that the noise citations 

should be classified as other-than-serious. This reliance is inapt. The cited case was not the final order of 

the Commission and has no persuasive nor precedential value. On review, the Commission reversed the 

ALJ’s other-than-serious classification and determined one of the citations was willful. Great Lakes 

Packaging Corp, 18 BNA OSHC 2138, 2143-44 (No. 97-2030, 2000). 
12 

informed of the standard, it would not care.” Burkes, 21 BNA OSHC at 2140 (citations omitted). 

“A willful violation is differentiated by heightened awareness of the illegality of the conduct or 

conditions and by a state of mind of conscious disregard or plain indifference.” E. Smalis 

Painting Co., Inc., 22 BNA OSHC 1553, 1569 (No. 94-1979, 2009) 

Five employees operated the mills at Respondent’s facility. (Tr. 344-45). Respondent’s 

written Hearing Protection Policy required it to conduct baseline and annual audiograms for 

operators working at Mill Three. (Ex. P-30, p. 11). The Policy also required the operators of 

Mill Three to use hearing protection. (Tr. 96, 350-52; Ex. P-30, p. 11). Records show no 

audiograms had been conducted since 2002.8 (Ex. P-30, pp. 6-10). The CO was prompted to 

conduct a noise study because she had to shout to have a conversation in the production area. 

(Tr. 37). Both Mr. Bole and Mr. Balka knew Home Rubber had noise protection requirements. 

(Tr. 330, 335-54). Mr. Bole and Mr. Balka were in the rubber production area daily and could 

hear the noise at Mill Three. (Tr. 330, 334, 393). Despite this daily reminder, neither took 

action to ensure employees were receiving baseline and annual audiograms. Further, when the 

Chrome Mill was added to the facility in 2007 there was no attempt to determine if the noise 

levels were above the action level. (Tr. 355). Home Rubber knew of the requirements of the 

standard and chose to disregard the requirements. 

Further, Mr. Balka had a heightened awareness of the need for audiograms. Home 

Rubber’s Hearing Protection Policy was developed after the state of New Jersey conducted a 

noise audit of the facility and determined that Mill Three operators were exposed to noise levels

that required baseline and annual audiograms to comply with OSHA standards. As the owner of 

Home Rubber, Mr. Balka was aware Mr. Zigler, who had initially implemented the hearing 

program, had left the company in 2006 and thus his safety and compliance duties would need to 

be assigned to someone else. Mr. Balka also knew there had been significant turn-over in the 

safety and compliance position since then. 

 Respondent’s assertion, that the violation was not willful because it was simply negligent 

and had no bad intent, is rejected. The Secretary is not required to prove a bad motive to support 

8

 Audiograms conducted in 2000 and 2002 for four employees were submitted for the record. (Tr. 97, 

100-01; Ex. P-30, pp. 6-10). One was a baseline audiogram dated October 4, 2000 for one employee. 

The others were follow-up audiograms for three employees dated March 29, 2002. Id. No other 

audiogram records were presented. 
13 

a willful classification. See Kaspar Wire Works, Inc. v. Sec’y, 268 F.3d 1123, 1129 (D.C. Cir. 

2001) (an employer’s action may be willful without showing evil intent or bad motive); see

generally, Hartford Roofing Co., 17 BNA OSHC 1361, 1363-64 (No. 92-3855, 1995) (violation

was not willful where employer had implemented significant safety measures).

I find Respondent willfully violated the cited standard. Respondent learned from a 1999 

audit that it needed a hearing protection program. Respondent developed a Hearing Protection 

Policy, with requirements for the operators of Mill Three that mirrored OSHA standards. Home 

Rubber ignored the requirements for baseline and annual audiograms set forth in its Hearing 

Protection Policy. Documents show no audiograms were conducted after 2002. As owner of the 

company Mr. Balka knew the person responsible for implementing the policy left the company 

in 2006, yet he made no effort to ensure the policy was followed thereafter. There is no evidence 

of an attempt to provide the required baseline and annual audiograms for employees that 

operated Mill Three. Respondent did not implement its hearing policy. 

Further, Respondent made no effort to determine if the Chrome Mill’s operators were 

exposed to excessive noise. To have a conversation near the Chrome Mill, the CO had to shout. 

(Tr. 37). Despite the noise level, and the existing hearing policy, Respondent took no action to 

provide audiograms to the operators of the Chrome Mill. (Tr. 342-43). 

Despite the apparent noise level of the Chrome Mill, the documented noise exposure at 

Mill Three, and the requirements of its own hearing policy, Home Rubber did not provide 

audiograms for its mill operators. Respondent did not simply forget some of the required 

audiograms; it provided no audiograms to employees for at least ten years. Home Rubber knew 

of the requirements for audiograms and made no effort to comply. 

 I find the willful classification is supported for Citation 2, Items 1a and 1b. 

Penalty

The maximum penalty for a willful violation is $124,709.9 28 USC § 666(a), 29 C.F.R. § 

1903.15(d)(1) (2016). Section 17(j) of the Act requires the Commission to give due consideration 

to four criteria in assessing penalties: the size of the employer’s business, the gravity of the 

9

 OSHA established new penalties effective August 1, 2016 for violations occurring after November 2, 

2015, pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 

(2015). 81 Fed. Reg. 43430 (July 1, 2016). The violation in the instant case occurred after November 2, 

2015 and was assessed after August 1, 2016 and on or before January 13, 2017, thus the statutory 

maximum of $124,709 and statutory minimum of $8,908 applied. 
14 

violation, the employer’s good faith, and the employer’s prior history of violations. Compass 

Envt’l, Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010), aff’d, 663 F.3d 1164 (10th Cir. 

2011). The gravity of the violation is generally accorded greater weight. See J. A. Jones Constr. 

Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). 

The Secretary proposed a combined penalty of $74,825 for Citation 2, Items 1a and 1b. 

The penalty was based on a greater gravity due to the risk of hearing loss from operating mills

for a full shift, several times a week. (Tr. 38). The size adjustment of 40% reduced the penalty 

to $74,825. (Ex. P-29, p. 2; Ex. P-2). I find the penalty adjustments are appropriate for these 

violations. I affirm the willful classification for both items and assess a combined penalty of

$74,825. 

Citation 1, Item 2 – Alleged serious violation of 29 C.F.R. § 1910.95(d)(1)

(d) Monitoring. (1) When information indicates that any employee's exposure 

may equal or exceed an 8-hour time-weighted average of 85 decibels, the 

employer shall develop and implement a monitoring program. 

The Secretary alleges that Respondent did not implement a noise monitoring program for 

employees who were exposed to noise at an 8-hour time weighted average above 85 dBA (action 

level) at the Chrome Mill. (S. Br. 16). Respondent asserts the Chrome Mill was added in 2007 

so it was not at the facility during the 1999 noise audit. (Tr. 342-43). Further, Respondent asserts 

that Mr. Balka thought the Chrome Mill would have a lesser noise level because it was smaller 

than Mill Three. (Tr. 355; R. Br. 12). 

 For the following reasons, I find that the Secretary established a violation of 29 C.F.R. 

§1910.95(d)(1). 

The standard applied, employees were exposed to the hazard, and the standard was violated. 

 As discussed above, June 6 audiometric monitoring demonstrated the operator of the 

Chrome Mill was exposed to noise above 85 dBA. Thus, a monitoring program for operators of 

the Chrome Mill was required. The standard applied. 

The employees operating the Chrome Mill were exposed to cited hazard. Home Rubber 

violated the cited standard because it did not have a noise monitoring program for the operators

of the Chrome Mill. Employees were exposed and the standard was violated. 

Home Rubber had knowledge of the hazard. 
15 

Mr. Balka knew the 1999 noise audit revealed that operators of Mill Three needed 

hearing protection. Respondent’s safety and compliance manager at the time, Mr. Zigler, 

received this report and his knowledge is imputed to Home Rubber. A copy of the report was in 

Mr. Zigler’s files and available to the company president, Mr. Balka, after Mr. Zigler’s departure. 

(Tr. 353-54). Mr. Balka also knew the Chrome Mill had not been evaluated for noise above the 

action level when it was added in 2007. (Tr. 342-43). Mr. Bole knew there were no hearing 

protection requirements for operators of the Chrome Mill. (Tr. 331-32). The loudness of the 

Chrome Mill was apparent because the OSHA CO had to shout to have a conversation, alerting 

her to the possibility the noise was above the action level. (Tr. 37). Mr. Balka and Mr. Bole 

were routinely in the production area so the condition was readily apparent to them. (Tr. 330, 

344, 393). See Hamilton, 16 BNA OSHC at 1091 (an employer has constructive knowledge of 

conditions that are apparent to its supervisory personnel).

Home Rubber did not exercise reasonable diligence to develop and implement a noise 

monitoring program for the Chrome Mill. See NLLC, 19 BNA OSHC at 1472 (Reasonable 

diligence for constructive knowledge includes, among other factors, the “obligation to inspect the 

work area, to anticipate hazards to which employees may be exposed, and to take measures to 

prevent the occurrence” of hazards.) 

I find Home Rubber had constructive knowledge that there was no noise monitoring 

program for the Chrome Mill. 

Serious Classification and Penalty 

Under §17(k) of the Act, a violation is serious “if there is a substantial probability that

death or serious physical harm could result.” 29 U.S.C. § 666(k); see Pete Miller, 19 BNA

OSHC at 1258 (Commission precedent requires a finding that “a serious injury is the likely result

should an accident occur.”) 

The citation was classified as serious because exposure to excessive noise levels can 

result in hearing loss. (Tr. 38). I agree that not implementing a monitoring plan can result in 

hearing damage and thus the violation is serious.10 See generally, Crescent, 1 BNA OSHC at 

1222 (an other-than-serious violation does not result in serious physical harm or death).

10 The record evidence fully supports the serious classification pled regarding Citation 1, Item 2. In his 

discretion, Complainant, the Secretary of Labor, has not pled, in the alternative, a willful classification 
16 

The maximum penalty for a serious violation is $12,471.11 28 U.S.C. § 666(b), 29 C.F.R. 

§ 1903.15(d)(3) (2016). The penalty was based on a greater gravity due to the risk of hearing 

loss from operating a mill for a full shift, several times a week. (Tr. 38). The size adjustment of 

30% reduced the penalty to $8,730. (Tr. 42). I find the penalty adjustments are appropriate for 

this violation. I affirm the serious classification and establish a penalty of $8,730. 

Citation 1, Item 3 – Alleged serious violation of 29 C.F.R. § 1910.95(k)(1) 

(k) Training program. (1) The employer shall train each employee who is exposed 

to noise at or above an 8-hour time weighted average of 85 decibels in accordance 

with the requirements of this section. The employer shall institute a training 

program and ensure employee participation in the program. 

 

The Secretary alleges that, Respondent did not institute or ensure employee participation 

in a training program for operators of the Chrome Mill and Mill Three. (S. Br. 17). Respondent 

contends it was not cited for this condition during a prior OSHA inspection and any violation 

should be other-than-serious. (R. Br. 16). 

The lack of prior citation is not a defense to a violation of the cited standard. S&G 

Packaging Co., LLC, 19 BNA OSHC 1503, 1507 n.12 (No. 98-1107, 2001) (S&G) (“It is well 

established, however, that the Secretary's failure to cite a condition does not amount to a 

determination that the condition does not constitute a violation.”). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.95(k)(1). 

The standard applied, employees were exposed to the hazard, and the standard was violated. 

As discussed above, June 6 audiometric monitoring demonstrated that the operators of 

the Chrome Mill and Mill Three were exposed to noise above 85 dBA. Any employee that 

operated these mills must be trained. The standard applied. 

regarding Citation 1, Item 2. Accordingly, analysis of whether Respondent’s violation of 29 C.F.R. 

§1910.95(d)(1) also supports a willful classification is not necessary. 11 OSHA established new penalties effective August 1, 2016 for violations occurring after November 2, 

2015, pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 

(2015). 81 Fed. Reg. 43430 (July 1, 2016). The violation in the instant case occurred after November 2, 

2015 and was assessed after August 1, 2016 and on or before January 13, 2017, thus the statutory 

maximum of $12,471 applied. Id. 
17 

 Employee training had not been conducted in many years; neither Mr. Balka, Mr. Bole, 

nor Mr. Fisher12 had ever provided training to employees. (Tr. 45-47). Five employees were 

mill operators and exposed to these noise levels. (Tr. 345). Employees were exposed and the 

standard was violated. 

Home Rubber had knowledge of the hazard. 

The report from the 1999 noise audit stated that Respondent “shall institute a training 

program for all employees exposed to noise at or above the 8-hr TWA of 85 decibels and shall 

ensure employee participation in such program.” (Ex. P-30, p. 13). The safety and compliance 

manager at the time, Mr. Zigler, received this report and his knowledge is imputed to Home 

Rubber. A copy of the report was in Mr. Zigler’s files and available to the company president, 

Mr. Balka, after Mr. Zigler’s departure. (Tr. 353-54). Home Rubber’s own Hearing Protection 

Policy, which stated that “[e]ach employee working on the #3 Mill will annually receive hearing

training,” shows knowledge of the requirement to train the mill operators. (Ex. P-30, p. 11). See 

Phoenix, 17 BNA OSHC at 1079-1080 (employer knowledge is directed to the hazardous 

condition, not whether the employer knew the condition was hazardous). Further, the CO had to 

shout to have a conversation near the Chrome Mill, alerting her to the possibility the noise was 

above the action level. (Tr. 37). Mr. Balka and Mr. Bole were routinely in the production area 

so the condition was readily apparent to them. (Tr. 330, 344, 393). 

Mr. Balka knew the position for the safety and compliance manager had significant 

turnover since 2006 and with reasonable diligence could have known that no training had been 

provided for employees in many years. The exercise of reasonable diligence for constructive 

knowledge includes, among other factors, the “obligation to inspect the work area, to anticipate 

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

hazards. NLLC, 19 BNA OSHC at 1472. Neither Mr. Balka nor the management staff made any 

efforts to implement the required training. 

I find Home Rubber had constructive knowledge of its lack of training for mill operators.

Serious Classification and Penalty

Under § 17(k) of the Act, a violation is serious “if there is a substantial probability that 

death or serious physical harm could result from” the violative condition. 29 U.S.C. § 666(k). I 

12 Mr. Fisher was the safety and compliance manager at the time of the OSHA inspection. 
18 

find that a lack of training can lead to failure to use and improper use of hearing protection and

result in permanent hearing damage; thus, the violation is serious.13 

The maximum penalty for a serious violation is $12,471. 28 U.S.C. § 666(b), 29 C.F.R. § 

1903.15(d)(3) (2016). The penalty was based on a greater gravity due to the risk of hearing loss 

from operating mills for a full shift, several times a week. (Tr. 38). The size adjustment of 30% 

reduced the maximum penalty to $8,730. (Tr. 47). I find these penalty adjustments are 

appropriate for this violation. I affirm the serious classification and establish a penalty of 

$8,730. 

THE REMAINING SERIOUS CITATIONS

Citation 1, Item 1a – Alleged serious violation of 29 C.F.R. § 1910.22(a)(1) and 

Citation 1, Item 1b – Alleged serious violation of 29 C.F.R. § 1910.22(a)(2) 

(a) Housekeeping.14 

(1) All places of employment, passageways, storerooms, and service rooms shall 

be kept clean and orderly and in a sanitary condition. 

(2) The floor of every workroom shall be maintained in a clean and, so far as 

possible, a dry condition. Where wet processes are used, drainage shall be 

maintained, and false floors, platforms, mats, or other dry standing places should 

be provided where practicable.

The Secretary alleges that, in the Mill Three area, dust was accumulated in a quantity 

greater than five percent on the mill, wall ledges, walls, pipes, lights, electrical equipment (item 

1a) and the floor (item 1b). (S. Br. 13-14). Respondent asserts the factory was not unusually 

dusty or dirty and the Secretary failed to show it could cause serious injury. (R. Br. 14-15). 

For the following reasons, I find that the Secretary established a violation of the cited 

standards, 29 C.F.R. § 1910.22(a)(1) and (a)(2). 

The standard applied and employees were exposed. 

Dust was produced as a part of Home Rubber’s production operation. (Tr. 436-37). The 

Mill Three area was separated from the rest of the production areas to prevent migration of 

13 Respondent asserted the citation should be other-than-serious because of immediate abatement. 

Abatement records show this condition was abated December 6, 2016, which was 6 months after the

inspection and several weeks after the citation was issued in October 2016. (Ex. R-1, p. 2) 

14 29 C.F.R. § 1910.22(a) was amended effective January 16, 2017. Final Rule, Walking-Working 

Surfaces and Personal Protective Equipment, 81 Fed. Reg. 82494, 82521 (Nov. 18, 2016) (to be codified 

at 29 C.F.R. pt. 1910). Here, the cited condition occurred on May 16, 2016, prior to the amendment. 
19 

carbon black dust. (Tr. 370-71). The standard applied. Employees worked in the Mill Three 

area; thus, exposure is established. 

The terms of the standard were violated.

The Secretary is not required to prove a hazard is serious to prove a violation of the cited 

standard; severity of the hazard is relevant to the citation’s classification. See generally, Kaspar

Electroplating Corp., 16 BNA OSHC 1517, 1523 (No. 90-2866, 1993); see also, Pyramid 

Masonry Contractors, 16 BNA OSHC 1461, 1464 (No. 91-0600, 1993) (when standard 

presumes a hazard exists, Secretary need only show the standard’s requirements were not met). 

The standard requires the Mill Three area be kept in a clean condition. The Secretary has 

demonstrated that the Mill Three area was not kept in a clean condition. 

Mill Three was separated from the rest of the facility to prevent the carbon black, used on 

Mill Three, from migrating to the other mills. (Tr. 370-71). A curtain of black, vertical, plastic 

strips separated the Mill Three area from the rest of the facility. (Tr. 142; Ex. P-6, p. 3). The 

strips allowed a mill operator to walk in and out of the area while preventing the carbon black 

from migrating outside the Mill Three area. (Tr. 370-71). The CO observed dust accumulations 

more than 1/32-inch thick on five percent of the surfaces of the room and floor, including the 

canopy above the mill, the mill equipment, wall ledges, pipes, walls, and the curtain of black 

plastic strips in the Mill Three area. 15 (Tr. 28-29, 460; Ex. P-6, pp. 1, 5-6; Ex. R-23). 

A visible layer of dust can be seen on the mill equipment in photographs taken by the CO 

on May 16. (Ex. P-6, pp. 5-6). Photographs of an employee operating Mill Three show a buildup of dust on the walls, floor and canopy of the ventilation system, as well as the mill. (Tr. 32-

33, 36-37; Ex. P-6, p. 6; Ex. P-7, p. 9). The photographs also show the build-up of dust on the 

plastic curtain that separated the Mill Three area from the rest of the production area, on the 

walls around the Mill Three doorway, and on the floor. (Tr. 202-03; Ex. P-6; Ex. P-40, 

#P1040631). 

15 The CO estimated the Mill Three area was approximately 30 by 30 feet based on information she 

received from Mr. Balka during the investigation. (Tr. 460). Respondent did not rebut the CO’s estimate 

of the size of the Mill Three area. 
20 

The material safety data sheets show that some of the chemicals used for Respondent’s 

rubber products had combustible or flammable properties.16 (Tr. 31, 35, 145-47). Because the 

safety data sheets indicated some of the chemicals used were flammable or combustible, the CO 

collected dust17 from the surfaces and floor in the Mill Three area for testing.18 (Tr. 145-46). 

The testing showed the dust had explosive properties. (Tr. 224; Ex. P-39, pp. 51, 56). 

Respondent had no cleaning schedule to prevent excess dust accumulation. The plant 

manager, Mr. Bole, told the CO the rollers on the mills were cleaned with each product change, 

but the room was not routinely cleaned. (Tr. 30, 35). R.B., the maintenance manager, told the 

CO that he assumed the room was cleaned routinely, but did not know how. (Tr. 35). Home 

Rubber provided no evidence of a housekeeping schedule to minimize dust accumulation. In his 

testimony, Mr. Balka admitted there was dust build-up and that Home Rubber could have done 

more to keep the Mill Three area clean.

19 (Tr. 436-37). 

I find Home Rubber did not keep the Mill Three area clean, thus the standard was 

violated. 

Home Rubber had knowledge of the hazard. 

The Secretary must prove “the employer knew or, with the exercise of reasonable 

diligence could have known of the hazardous condition.” PSP, 22 BNA OSHC at 1305. 

Knowledge is directed to the physical conditions that constitutes the violation and does not 

require the employer to know or understand the condition was hazardous. Phoenix, 17 BNA 

OSHC at 1079-1080. 

A hazardous condition that is “readily apparent” because of its location in a conspicuous, 

area will support a finding of constructive knowledge, especially where employees are working 

16 The material safety data sheets for the following chemicals were entered into the record: naptha, 

toluene, carbon black, limestone, zinc oxide, titanium dioxide, Satintone W, silicon dioxide, Sundex, 

Calsol, Sunpar 2280, specialty magnesium oxide, Dixie Clay, Industrene R, sulfur, and dicumyl peroxide. 

(Ex. P-34, pp. 5, 24, 32, 40, 45, 55, 67, 75, 87, 100, 109, 120, 127, 132, 141, 150). 

17 In her testimony, the CO referred to a “directive that we follow for combustible and explosive dust.” 

(Tr. 141). Here the cited condition was not a combustible dust allegation but an allegation for excessive 

amount of dust on the floor and surfaces in the Mill Three area. 18The OSHA analytical chemist that conducted the laboratory tests for the dust sample testified about the 

methods used and the results. (Tr. 221, 223). 

19 Home Rubber argued that the accumulated amount of dust was less than five percent. (Tr. 381). 

However, this argument was based on the size of the entire mill production room, not the much smaller 

Mill Three area at issue here. (Tr. 371, 382). This argument is meritless because the Secretary only 

alleges excess dust accumulation in the Mill Three area. 
21 

in the area where the hazard is located. See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1267-

68 (No. 06-1416, 2008) (signage was in plain view establishing constructive knowledge); 

Kokosing Constr. Co., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996) (presence of crews in the 

area warrant a finding of constructive knowledge); A. L. Baumgartner Constr., Inc., 16 BNA 

OSHC 1995, 1998 (No. 92-1022, 1994) (constructive knowledge where a condition is “readily 

apparent to anyone who looked”). 

As shown in the photographs, the dust accumulation was visible on the walls, floor, the 

ventilation hood’s canopy, and on the equipment. (Tr. 32-33; Ex. P-6). Home Rubber’s 

managers were in the production area “all the time every day.” (Tr. 345). The plant manager

routinely travelled through the various departments. (Tr. 330). These managers would have seen 

and known of the excessive dust accumulation. See Hamilton, 16 BNA OSHC at 1091 (an 

employer has constructive knowledge of conditions that are apparent to its supervisory 

personnel). Further, Mr. Balka knew of the dust accumulation. He acknowledged that he wore 

“it home every day” and that more could be done to clean the area. (Tr. 436-37). Knowledge is 

established. 

Serious Classification & Penalty 

As discussed below, electrical boxes and exposed electrical conduits in the Mill Three 

area had openings where the dust accumulated. (Tr. 88, 90). There was a significant amount of 

dust in the Mill Three area. (Tr. 86). The Secretary asserts that a fire in the Mill Three area 

could be exacerbated by the accumulated explosive dust causing third-degree burns, smoke 

inhalation, and death from a fire-related explosion. (Tr. 29). 

Respondent asserts the violation should be classified as other-than-serious because the 

chance of injury was remote. (R. Br. 15). However, the likelihood of injury is not the basis for a 

serious classification. Under § 17(k) of the Act, a violation is serious “if there is a substantial 

probability that death or serious physical harm could result from” the violative condition. 29 

U.S.C. § 666(k). “This 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.” ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1824 (No. 88-2572, 

1992). I find that if an accident occurred that serious injury would be the likely result.
22 

Items 1a and 1b were combined for the penalty. The penalty was based on a moderate 

gravity due to a lesser probability rating. (Exs. P-6, P-7). The size adjustment of 30% reduced 

the penalty to $6,236. Id. I find the penalty adjustments are appropriate for this violation. 

I affirm the serious classification and combined penalty of $6,236 for Citation 1, Items 1a 

and 1b. 

Citation 1, Item 4 – Alleged serious violation of 29 C.F.R. § 1910.106(e)(6)(ii)

(e) Industrial plants . . . (6) Sources of ignition. . . (ii) Grounding. Category 1 or 2 

flammable liquids, or Category 3 flammable liquids with a flashpoint below 

100°F (37.8°C), shall not be dispensed into containers unless the nozzle and 

container are electrically interconnected. Where the metallic floorplate on which 

the container stands while filling is electrically connected to the fill stem or where 

the fill stem is bonded to the container during filling operations by means of a 

bond wire, the provisions of this section shall be deemed to have been complied 

with.

The Secretary alleges the pump’s nozzle was not electrically interconnected to the 

transfer container when Category 2 flammable liquids were transferred from 55-gallon drums. 

(S. Br. 18). Respondent asserts this condition was not identified as a violation during a 2012 

OSHA inspection and there had never been an incident when transferring chemicals. (Tr. 385-

86). Respondent’s assertions are rejected. 

The lack of a prior citation or injury is not a defense to a violation of the cited standard. 

S&G, 19 BNA OSHC at 1507 n.12 (“It is well established, however, that the Secretary's failure 

to cite a condition does not amount to a determination that the condition does not constitute a 

violation.”); Peacock Eng’g, Inc., 26 BNA OSHC 1588, 1590 (No. 11-2780, 2017) (Peacock) 

(finding absence of prior injury not dispositive since goal of the Act is to prevent the first 

accident). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.106(e)(6)(ii). 

The standard applied and employees were exposed. 

Toluene and naphtha, which are Class II flammable liquids, were transferred from fiftyfive-gallon drums into dispensing cans for use in the mill room and hose room. (Tr. 48; Ex. P-10, 

p. 2; Ex. P-40, #P1040671). The standards applied. 
23 

R.B. and V.D. transferred the chemicals from the drums a couple of times a day. (Tr. 49; 

Ex. P-10, p. 2). Employee exposure is established. 

The terms of the standard were violated. 

Fifty-five-gallon drums of toluene and naptha were stored on the exterior wall of the 

compounding area in a cage-like area. (Tr. 385-86). The chemicals were transferred from 55-

gallon drums into smaller dispensing containers. (Ex. P-10, p. 2). A grounding wire connected a

drum to the metal fencing behind the drum. (Tr. 50, 190). The nozzle on the drum’s pump was 

not electrically connected to the transfer container as required by the standard. (Ex. P-10, p. 2). 

The cited standard was violated. 

Home Rubber had knowledge of the hazard. 

The material safety data sheets (MSDS) provided by Mr. Balka described the chemicals 

as flammable and stated that a bonding wire was required to avoid buildup of static electricity. 

(Tr. 49). The MSDS were posted on the fence behind the drums. (Tr. 48). Mr. Bole, plant 

manager, knew these chemicals were transferred from their drums daily and R.B. knew there was 

no bonding wire that connected the nozzle to the dispensing container. (Tr. 49). See Phoenix, 17 

BNA OSHC at 1079-1080 (employer knowledge is directed to the hazardous condition, not 

whether the employer knew the condition was hazardous). 

Because the posted MSDS stated that a bonding wire was required to avoid static 

electricity buildup, the managers at Home Rubber could have known of the requirement with 

reasonable diligence. Further, the managers knew the chemicals were transferred daily without a 

bonding wire for electrical interconnection. Knowledge is established. 

Serious Classification and Penalty

The hazard was serious because of the risk of fire from a buildup of static electricity

when transferring flammable liquids. (Tr. 48). The $3,742 penalty was based on a lesser gravity 

and a 30% reduction for employer size. (Tr. 49-50; Ex. P-10). I find the penalty adjustments are 

appropriate for this violation. I affirm the serious classification and penalty of $3,742 for 

Citation 1, Item 4. 

Citation 1, Item 5 – Alleged serious violation of 29 C.F.R. § 1910.147(c)(6)(i) 

(c) General . . . (6) Periodic inspection. 

(i) The employer shall conduct a periodic inspection of the energy control

procedure at least annually to ensure that the procedure and the requirements of 

this standard are being followed. 
24 

(A) The periodic inspection shall be performed by an authorized employee other 

than the ones(s) utilizing the energy control procedure being inspected. 

(B) The periodic inspection shall be conducted to correct any deviations or 

inadequacies identified.

(C) Where lockout is used for energy control, the periodic inspection shall include 

a review, between the inspector and each authorized employee, of that employee's 

responsibilities under the energy control procedure being inspected. 

(D) Where tagout is used for energy control, the periodic inspection shall include 

a review, between the inspector and each authorized and affected employee, of 

that employee's responsibilities under the energy control procedure being 

inspected, and the elements set forth in paragraph (c)(7)(ii) of this section. 

(emphasis added.) 

The Secretary alleges that Respondent did not conduct annual inspections of energy 

control (lockout-tagout) procedures for the Mill department equipment serviced and maintained 

by employees. (S. Br. 19). Respondent asserts the Secretary did not prove that its energy control 

procedures were deficient. (R. Br. 17). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.147(c)(6)(i). 

The standard applied. 

The energy control (lockout-tagout) standard applies to the “servicing and maintenance

of machines and equipment in which the unexpected energization or start up of machines or 

equipment” could injure an employee. 29 C.F.R. § 1910.147(a)(1)(i) (emphasis in original); see 

Dayton Tire, Bridgestone/Firestone, 23 BNA OSHC 1247, 1250 (No. 94-1374, 2010), aff'd in 

relevant part, 671 F.3d 1249 (D.C. Cir. 2012). Maintenance department employees were

constantly servicing the various equipment at Home Rubber, so lockout was a regular activity. 

(Tr. 52). The standard applied. 

Employees were exposed to the hazard. 

Maintenance employees, R.B. and V.D., repaired and serviced equipment in the Mill 

room. (Tr. 388, 443; Ex. P-11, p. 2). These maintenance employees used the energy control 

procedures and were exposed to the hazard. 

The terms of the standard were violated. 

Home Rubber had general and specific written energy control (lockout-tagout) 

procedures for its equipment. (Tr. 51, 387-88; Ex. P-13, p. 4). The lockout-tagout procedure 

stated that the procedure “must be followed throughout the facility. . . [i]f anyone has any 
25 

questions concerning the written procedures . . . . contact the Plant Manager immediately.” (Ex. 

P-13, p. 4). The equipment with specific procedures included, Mixing Mill #1, Mixing Mill #2, 

Mixing Mill #3, Stock Calendar, Friction Calendar, High Pressure Boiler, Hose Room 

Vulcanizer, Mill #4, Extruder #1, Extruder #2, and Light Work Room Vulcanizers. (Ex. P-13, 

pp. 4-31). 

The standard requires an authorized employee, who does not utilize the lockout 

procedures, to inspect Home Rubber’s energy control procedures at least annually. The plant 

manager and the two maintenance employees were the authorized employees. (Ex. P-13, p. 5). 

As users of the lockout procedure the maintenance employees could not inspect the procedures. 

Thus, as plant manager, Mr. Bole was required to conduct the inspection. 

Mr. Bole stated that he had sometimes conducted a periodic inspection of the program 

but did not specify how often he had done so. (Tr. 333-34). Respondent presented no evidence 

that it conducted an annual inspection of its lockout-tagout program. Instead, Respondent argues 

it wasn’t necessary to conduct an annual inspection because there were no deficiencies in the 

procedure. (R. Br. 17). Respondent’s argument is rejected. The standard requires an employer 

to conduct an inspection of its program, at least annually, to confirm its procedures are followed. 

The requirements of the cited standard were violated. 

Home Rubber had knowledge of the hazard. 

 Home Rubber had a written general lockout procedure and written procedures for specific 

equipment, such as the stock calendar machine. (Ex. P-13, pp. 5-31). Home Rubber’s internal 

lockout procedure stated that “all authorized employees will be required to demonstrate at least 

annually that they have the skill to perform a general lockout/tag out procedure.” (Ex. P-13, p. 

5). 

Mr. Balka knew that maintenance employees serviced machines and used the lockouttagout procedure. (Tr. 443-44). Mr. Balka knew that he had not conducted an annual inspection 

of the energy control program or observed employees implementing the procedure. (Tr. 443-44). 

Home Rubber’s written procedures were stored in the office of a prior safety and compliance 

manager, Mr. Zigler, and were available to Mr. Balka. (Tr. 351, 353, 426). Mr. Bole conducted 

lockout procedure inspections from time to time, but not annually. (Tr. 333). Mr. Balka made 

no effort to ensure annual inspections were conducted. (Tr. 443-44). 
26 

Home Rubber’s management did not make a reasonably diligent effort to ensure the 

lockout-tagout process was inspected at least annually. See NLLC, 19 BNA OSHC at 1472 

(Reasonable diligence for constructive knowledge includes, among other factors, the “obligation 

to inspect the work area, to anticipate hazards to which employees may be exposed, and to take 

measures to prevent the occurrence” of hazards.)

 With reasonable diligence Mr. Balka could have known that annual inspections of the 

energy control program had not been conducted. Knowledge is established. 

Serious Classification and Penalty

The citation was characterized as serious due to possible injuries that can result from an 

inadequate energy control (lockout-tagout) policy, including amputation and fractures. (Tr. 52). 

The gravity was rated as moderate because multiple machines were covered by the procedures. 

(Tr. 51-52). The gravity-based penalty was reduced by 30% to $6,236 for employer size. I find 

these penalty adjustments are appropriate for this violation. I affirm the serious classification 

and penalty of $6,236 for Citation 1, Item 5. 

Citation 1, Item 6 – Alleged serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(B)

(7) Training and communication. 

(i) The employer shall provide training to ensure that the purpose and function of 

the energy control program are understood by employees and that the knowledge 

and skills required for the safe application, usage, and removal of the energy 

controls are acquired by employees. The training shall include the following: 

(A) Each authorized employee shall receive training in the 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. 

(B) Each affected employee shall be instructed in the purpose and use of the 

energy control procedure.

(C) All 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 locked out or tagged out. 

(emphasis added). 

The Secretary alleges that Respondent did not provide training to affected employees that 

used equipment in the Mill department, including but not limited to, the calendar equipment. (S.

Br. 22). Respondent simply asserts the mill operators were not trained because they were not 

affected employees. (R. Br. 18-19). 
27 

For the following reasons, I find the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.147(c)(7)(i)(B). 

The standard applied. 

Home Rubber had an energy control (lockout-tagout) program in place for several 

machines, including Mixing Mill #1, Mixing Mill #2, Mixing Mill #3, Stock Calendar, Friction 

Calendar, High Pressure Boiler, Hose Room Vulcanizer, Mill #4, Extruder #1, Extruder #2, and 

Light Work Room Vulcanizers. (Tr. 51, 387-88; Ex. P-13, pp. 4-31). The standard applied. 

The terms of the standard were violated.

An affected employee is defined as “[a]n employee whose job requires him/her to operate 

or use a machine or equipment on which servicing or maintenance is being performed under 

lockout or tagout, or whose job requires him/her to work in an area in which such servicing or 

maintenance is being performed.” 29 C.F.R. § 1910.147. 

The standard requires training for both authorized employees and affected employees.

Home Rubber only provided training to authorized employees. (Tr. 54-55; Ex. P-12, p. 3). The 

mill operators used the machines serviced under the lockout-tagout program; thus, a mill 

operator’s job “requires him/her to work in areas in which servicing or maintenance is being

performed.” (Ex. P-13, 4). The mill operators were affected employees and must be trained on 

the purpose and use of the lockout-tagout procedures. 

Home Rubber did not train its mill operators, who were affected employees, on the 

lockout-tagout program. The standard was violated. 

Employees were exposed to the hazard. 

A calendar machine was locked out and tagged out to remove a gear for repair during the 

last week of May 2016. (Tr. 56-57). The mill operators were affected employees and exposed to 

the hazard of lack of training about the purpose and use of lockout-tagout procedures. Employee 

exposure is established. 

Home Rubber had knowledge of the hazard. 

Home Rubber’s lockout-tagout procedure stated that operators were affected employees 

and that “all new employees, whether authorized or affected, must be trained.”20 (Ex. P-13, p. 

5). Mr. Bole and Mr. Balka knew the mill operators were not trained on the company’s lockout20 Home Rubber’s lockout-tagout procedures also uses the term “impacted employees” for its machine 

operators. (Ex. P-13, p. 5, 14). 
28 

tagout procedures. (Tr. 52, 54; Ex. P-12, p. 3). See Phoenix, 17 BNA OSHC at 1079-1080. 

Because Home Rubber’s own policy required the training of affected employees and 

management knew the affected employees worked on those machines where servicing occurred, 

knowledge is established. 

Serious Classification and Penalty 

The citation was characterized as serious due to possible injuries that can result from a 

lack of training on energy control procedures, including amputation and fractures. (Tr. 54). The

gravity was rated as moderate due to the multiple machines serviced. (Ex. P-12). The gravitybased penalty was reduced by 30% to $6,236 for employer size. (Tr. 55). I find these penalty

adjustments are appropriate for this violation. I affirm the serious classification and penalty of 

$6,236 for Citation 1, Item 6. 

Citation 1, Item 7 – Alleged serious violation of 29 C.F.R. § 1910.147(f)(3)(ii)(D) 

(f) Additional requirements . . . (3) Group lockout or tagout. . . . 

(ii) Group lockout or tagout devices shall be used in accordance with the 

procedures required by paragraph (c)(4) of this section including, but not 

necessarily limited to, the following specific requirements: . . . 

(D) Each authorized employee shall affix a personal lockout or tagout device to 

the group lockout device, group lockbox, or comparable mechanism when he or 

she begins work, and shall remove those devices when he or she stops working on 

the machine or equipment being serviced or maintained. 

. 

The Secretary alleges that a personal lockout or tagout device was not affixed to the 

group lockout device before working on the calendar machine. (S. Br. 24). Respondent asserts 

that because there were only two maintenance employees at Home Rubber, and they always 

knew what the other was doing, it was unlikely there would be a problem with not applying a 

personal lock. (R. Br. 18-19). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.147(f)(3)(ii)(D). 

The standard applied and employees were exposed to the hazard. 

Lockout was a regular activity because machines were constantly being serviced by the 

maintenance department. (Tr. 56). Two maintenance employees were authorized to service the 

machines, R.B. and V.D. (Tr. 389-90). The standard applied. 

The gear on the calendar machine was serviced by R.B. and V.D. (Tr. 55-56). Employee 

exposure is established. 
29 

The terms of the standard were violated. 

Where more than one employee services a piece of equipment the standard requires each 

individual to place his/her lock onto a group lock. “The core concept of lockout/tagout 

is personal protection, that each individual worker controls his/her own lock or tag.” Exelon 

Generating Corp., 21 BNA OSHC 1087, 1090 (No. 00-1198, 2005) (where lockout/tagout 

requirement for power generation standard mirrored the general industry requirement); Final 

Rule, Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36644, 36681 

(Sept. 1, 1989), as amended at, 55 Fed. Reg. 38677, 38683 (Sept. 20, 1990) (to be codified at 29 

C.F.R. pt. 1910) (“the placement of a personal lockout or tagout device enables that employee to 

control his/her own protection, rather than having to depend upon another person”) 

 In May 2016, a repaired gear was reinstalled on a calendar machine. (Tr. 55-56). The 

two maintenance employees replaced the machine’s gear, but only one lock was applied to the 

disconnect switch. (Tr. 55-56). The standard requires each authorized employee working on the 

machine to apply his personal lockout-tagout device. 29 C.F.R. § 1910.147(f)(3)(ii)(D). 

Home Rubber violated the standard’s requirements.

Home Rubber had knowledge of the hazard. 

Home Rubber’s lockout-tagout procedure required each employee to apply a lockout 

device to a machine in service. (Ex. P-13, pp. 6, 9, 10, 12, 14, 16, 18, 22, 23, 25, 27, 30). 

If more than 1 employee is locking out this machine or equipment then a tree lock 

shall be used and each employee shall follow the outlined procedure below for 

group lockout devices. . .. NOTE: When servicing or maintenance is to be 

performed by a group or crew of persons, each employee doing the servicing or 

the maintenance must apply their own, individual lockout device on the machine 

or equipment. Also, with the group lockout devices, primary responsibility for 

the group or crew of persons must be vested in one designated, authorized 

employee, who shall be responsible for coordinating the work forces and ensuring 

continuity of the lockout protections.

(emphasis added.) (Ex. P-13, p. 14). 

 Mr. Bole told the CO that he knew there was only one lock in use and thought that was 

enough since the two employees worked together. (Ex. P-13, p. 3). See Phoenix, 17 BNA 

OSHC at 1079-1080 (knowledge is directed to the physical condition that constitutes the 

violation). 
30 

Because Mr. Bole knew that each employee did not use a personal lock and Home 

Rubber’s policy states that each employee must apply a lockout device, knowledge is 

established.

Serious Classification and Penalty 

The citation was characterized as serious due to possible injuries, including amputation 

and fractures, that can result if parts move while an employee is still servicing the machine. (Tr. 

56-57). The gravity was rated as moderate because the machines had more than one energy 

source. (Tr. 57; Ex. P-13). The gravity-based penalty was reduced by 30% to $6,236 for 

employer size. (Tr. 57). I find the penalty adjustments are appropriate for this violation. I 

affirm the serious classification and penalty of $6,236 for Citation 1, Item 7. 

Citation 1, Item 8 – Alleged serious violation of 29 C.F.R. § 1910.157(g)(2)

(g) Training and education. 

(1) Where the employer has provided portable fire extinguishers for employee use 

in the workplace, the employer shall also provide an educational program to 

familiarize employees with the general principles of fire extinguisher use and the 

hazards involved with incipient stage fire fighting.

(2) The employer shall provide the education required in paragraph (g)(1) of this 

section upon initial employment and at least annually thereafter. 

The Secretary alleges that employees were not trained on the general use of a fire 

extinguisher at hire and at least annually thereafter. (S. Br. 25). Respondent contends that one 

of its employees was a trained fire fighter and several other employees were trained on fire 

extinguisher use. (R. Br. 19-20).

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.157(g)(2). 

The standard applied and employees were exposed. 

Home Rubber supplied fire extinguishers for employee use throughout the facility. (Tr. 

160, 391). The standard applied. Employees had used fire extinguishers when a fire occurred a 

few years before. (Tr. 58; Ex. P-14, p.3). Employees working at Home Rubber were exposed to 

the hazard of lack of training in the hazards and use of fire extinguishers. Employee exposure is 

established. 

The terms of the standard were violated. 

Respondent admits that all employees were not trained; Respondent asserts that “several” 

employees had been trained. (R. Br. 20). During the inspection, Mr. Balka told the CO that the 
31 

Trenton Fire Dept used to provide training to employees, but he could not recall the last time 

training had been provided. (Tr. 59, 461). The Trenton Fire Department had not done training 

for at least 5 years.21 (Tr. 59; Ex. P-14, p. 4). 

Respondent asserts that OSHA regulations only required it to train one employee. (R. Br. 

20). However, Respondent does not provide support for this assertion.22 Respondent’s assertion 

that only certain employees must be trained is rejected. The cited standard requires Home 

Rubber to train all employees who could use a portable fire extinguisher. 

 Respondent also asserts it trained employees through the fire extinguisher policy in its 

employee handbook. (R. Br. 20; Ex. P-37, p. 41). The policy consisted of a sole sentence that

stated, “Do not block fire exits or fire extinguishers in the production or warehouse areas.” (Ex. 

P-37, p. 41). This sentence in its handbook did not train an employee on the hazards and use of a 

fire extinguisher. 

 I find Respondent did not train its employees at hire and annually thereafter as required 

by the standard. The standard was violated. 

Home Rubber had knowledge of the hazard. 

Mr. Balka knew the Trenton Fire Department no longer provided training to Home 

Rubber’s employees. (Tr. 391). See Phoenix, 17 BNA OSHC at 1079-1080 (knowledge is 

directed to the physical condition that constitutes the violation). With reasonable diligence Mr. 

Balka could have known that employees were not trained at hire and annually on fire 

extinguisher use and hazards. See NLLC, 19 BNA OSHC at 1472 (Reasonable diligence for 

constructive knowledge includes, among other factors, the “‘obligation to inspect the work area,

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

occurrence”’ of hazards.). Knowledge is established. 

Serious Classification and Penalty

The hazard was serious because of fire-related injuries, such as burns and smoke 

inhalation. (Tr. 59). The $3,742 penalty was based on a low gravity assessment and a 30% 

21 Respondent subsequently trained all its employees in January 2017. (Ex. R-1). 

22 I do note that a different standard, not cited here, 29 C.F.R. § 1910.158(g)(4), requires training only for 

employees designated to use firefighting equipment. That is not pertinent to the standard cited here, 

which requires training for all employees on portable fire extinguishers. 
32 

reduction for employer size. (Tr. 59-60; Ex. P-14). I find the penalty adjustments are appropriate 

for this violation. 

 Respondent asserts the violation should be classified as other-than-serious because fire 

extinguishers were in the facility and the severity, probability, and gravity are low. (R. Br. 19-

20). Respondent cites to Thermal Reduction Group, 1986 WL 53480, *21 (No. 83-1073, 1986) 

(ALJ) as support that a violation of § 1910.157(g)(2) can be categorized as other-than-serious. 

(R. Br. 19-20). However, Thermal provides no rationale for the other-than-serious classification; 

the ALJ simply affirmed the Secretary’s recommended classification. Id. Further, Thermal has 

no precedential value. Elliot Constr. Corp., 23 BNA OSHC 2110, 2114 n. 4 (No. 07-1578, 

2012) (Elliot) (Unreviewed administrative law judge decisions have no precedential value.). 

Respondent’s reliance on Thermal is inapt. 

The classification of a citation as serious is based on the severity of harm if an accident 

occurs. See Mosser Constr., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010). Respondent’s 

assertion that the classification should be other-than-serious is rejected. I affirm the serious 

classification and penalty of $3,742 for Citation 1, Item 8.

Citation 1, Item 9 – Alleged serious violation of 29 C.F.R. § 1910.178(l)(4)(iii)

(l) Operator training. . .. (4) Refresher training and evaluation. . .. (iii) An 

evaluation of each powered industrial truck operator's performance shall be 

conducted at least once every three years.

The Secretary alleges that Respondent had not conducted an evaluation for its powered 

industrial truck operators at least once every three years. (S. Br. 26). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.178(l)(4)(iii). 

The standard applied, employees were exposed, and the terms of the standard were violated.

 Powered industrial trucks (forklifts) were used in Home Rubber’s facility to move rolls 

of rubber and pallets of chemicals. (Tr. 63-64; Ex. P-15). The standard applied. 

 Three employees operated these forklifts. (Tr. 61-63; Ex. P-15, p.2). Documentation 

shows that one operator was last evaluated in 2010.23 The other two operators had been 

evaluated at a previous employer, more than three years before the OSHA inspection. (Tr. 61-

23 Home Rubber had documentation for a forklift evaluation conducted by the safety and compliance

manager, Michael Strasser, in June 2010. (Ex. P-33, p. 3). 
33 

62, 64, 163, 217; Ex. P-15, p. 2; Ex. P-33, p. 3). Tim Fisher, safety and compliance manager at 

the time of the inspection, evaluated new hires during the two years that he worked at Home 

Rubber but had not re-evaluated any existing employees. (Tr. 62, 461). The cited standard was 

violated and employees were exposed. 

Home Rubber had knowledge of the hazard. 

Home Rubber did not evaluate a forklift operator’s performance at least once every three 

years. Mr. Fisher knew that he had not re-evaluated any employee hired by Home Rubber before 

he became the safety and compliance manager.

24 (Tr. 62). As a manager, his knowledge is 

imputed to Home Rubber. See AEDC, 23 BNA OSHC at 2095. Home Rubber’s documentation 

showed that a forklift operator, Mr. Lopez, had not been evaluated since 2010. (Tr. 217; Ex. P33, p. 3). With reasonable diligence Mr. Balka could have known that forklift operators were not 

being evaluated every three years. See NLLC, 19 BNA OSHC at 1472 (Reasonable diligence for 

constructive knowledge includes, among other factors, the “obligation to inspect the work area,

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

occurrence” of hazards.). Knowledge is established. 

Serious Classification and Penalty 

The hazard was classified as serious because injuries such as broken bones and 

lacerations can occur when a forklift is not operated properly. (Tr. 62). The $4,988 penalty was 

based on a moderate gravity assessment and a 30% reduction for employer size. (Tr. 62-63; Ex. 

P-15). I find the penalty adjustments are appropriate for this violation. 

 Respondent asserts the violation is other-than-serious because Home Rubber believed 

there was low likelihood of injury because the forklifts were operated in a limited area. (R. Br.

22). This assertion is rejected. The classification of a citation as serious is not based on the 

likelihood of occurrence, but instead is related to the severity of harm when an accident occurs. 

See Mosser, 23 BNA OSHC at 1046. I affirm the serious classification and penalty of $4,988 for 

Citation 1, Item 9. 

Citation 1, Item 10 – Alleged serious violation of 29 C.F.R. § 1910.212(a)(1) 

(a) Machine guarding. (1) Types of guarding. One or more methods of machine 

guarding shall be provided to protect the operator and other employees in the 

24 Tim Fisher became the safety and compliance manager about two years before the inspection. (Tr. 347, 

353). 
34 

machine area from hazards such as those created by point of operation, 

ingoing nip points, rotating parts, flying chips and sparks. Examples of 

guarding methods are—barrier guards, two-hand tripping devices, electronic 

safety devices, etc. 

The Secretary alleges that employees were exposed to an unguarded rotating arm on the

Kobe Mill. (S. Br. 27). Respondent asserts the rotating arm could only be accessed if an 

employee intentionally placed his hand there. (R. Br. 22). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.212(a)(1). 

The standard applied. 

The Kobe Mill had a rotating shaft that extended from the left side of its gear box. The 

standard applied. 

Employees were exposed to the hazard and the standard was violated.

To establish exposure under the cited standard, the Secretary “must show that it is 

reasonably predictable either by operational necessity or otherwise (including inadvertence), that 

employees have been, are, or will be in the zone of danger.” Fabricated Metal Prods., 18 BNA 

OSHC 1072, 1074 (No. 93-1853, 1997) (Fabricated). The zone of danger is “that area 

surrounding the violative condition that presents the danger to employees [that] the standard is 

intended to prevent.” S&G, 19 BNA OSHC at 1507; see Delek Refining, Ltd., 25 BNA OSHC

1365, 1374 (No. 08-1386, 2015), aff’d in relevant part, 845 F.3d 170 (5th Cir. 2016) (Secretary 

must show how close an employee is to the zone of danger, “either as their work required or 

through inadvertence”). The Commission has long held the definition of the hazard depends on 

how the machine functions and how it is operated. Fabricated, 18 BNA OSHC at 1074. 

There is no dispute the rotating shaft was not guarded. The dispute is whether the 

unguarded rotating shaft exposed an employee to injury. The Secretary asserts that employees 

could get their clothing caught on the rotating shaft when filling the oil pot next to the rotating 

shaft. (Tr. 65). I agree. 

 The Kobe Mill consisted of a series of horizontally interconnected components, such as 

the motor and gearbox, that rested on an I-beam platform a few inches above the floor. (Tr. 394-

96). The Kobe Mill’s first module was a metal box that contained the mill’s motor. The next 

module in line, and to the left of the motor, was the gearbox that contained the mill’s main gears. 

(Tr. 394, 403-04). 
35 

The rotating shaft that is the subject of this citation item was to the left of gearbox. The 

oil pot was a tall plastic cylinder next to the rotating shaft. (Tr. 67, 394, 403-04; Ex. P-40, 

#1040681). The horizontal distance from the gearbox to the oil pot was 6-1/2 inches. (Tr. 406). 

I find that an employee’s clothing could get caught on the rotating shaft when adding oil. 

Oil was added to the oil pot while the machine was operating. (Tr. 66). A photograph and video

taken by the CO shows the machine’s operator, his back to the camera, standing on the Kobe 

Mill’s raised platform facing the oil pot cylinder directly in front of him. (Tr. 67; Ex. P-40, 

Video #12; Ex. P-40, #1040681). The photographs and video show the employee’s body was 

very close to the rotating shaft. (Ex. P-16, pp. 3, 5; Ex. P-40, Video #12; Ex. P-40, #1040681). 

The heels of his boots were on the edge of the raised I-beam platform. Id. His right hand rested 

on the gearbox to his right, as he faced the oil pot. (Ex. P-40, #1040681). The oil pot and 

rotating shaft were about 15 inches from the outer edge of the platform. (Tr. 398). The rotating

shaft, slightly behind and a few inches to the right of the oil pot, was at about the level of the 

employee’s upper leg.25 Id. In other words, the employee was standing within the 15-inch space 

between the rotating shaft and platform’s edge. This puts the employee’s body close enough to 

make inadvertent contact with the rotating shaft.

Respondent’s assertion that the shaft was too far away for contact is not credible based on 

the actual location of the Kobe Mill operator in the video. I find that while filling the oil pot 

cylinder, an employee could inadvertently contact the rotating shaft. Guarding would prevent 

contact. 

The standard was violated and an employee was exposed to the hazard.

Home Rubber had knowledge of the hazard 

While the CO was taking a video of the Kobe Mill in operation, the operator stepped onto 

the platform next to the oil pot cylinder and rotating shaft. (Ex. P-40, Video #12, Photo 

#1040681). The Kobe Mill’s configuration was open and in plain view. Home Rubber’s 

managers were in the production area “all the time every day.” (Tr. 345). The plant manager,

Mr. Bole, stated that he routinely travelled through the various departments. (Tr. 330). 

See Hamilton, 16 BNA OSHC at 1091 (an employer has constructive knowledge of conditions 

25 A close-up photograph, without an employee, also showed the rotating shaft close to the oil pot. (Ex.

P-16, pp. 3, 5). 
36 

that are plainly visible to its supervisory personnel). Because the hazardous condition was in

plain view, knowledge is established.

Serious Classification and Penalty

The citation was characterized as serious26 due to possible injuries, such as lacerations 

and broken bones, if an employee was pulled into the machine’s rotating parts. (Tr. 65). The 

gravity was rated as moderate and the penalty was reduced by 30% to $4,988 for employer size. 

(Tr. 66; Ex. P-16). I find these penalty adjustments are appropriate for this violation. I affirm 

the serious classification and penalty of $4,988 for Citation 1, Item 10. 

Citation 1, Item 11 – Alleged serious violation of 29 C.F.R. § 1910.212(a)(3)(ii)

(a) Machine guarding— 

(3) Point of operation guarding. 

(i) Point of operation is the area on a machine where work is actually performed

upon the material being processed.

(ii) The point of operation of machines whose operation exposes an employee to 

injury, shall be guarded. The guarding device shall be in conformity with any 

appropriate standards therefor, or, in the absence of applicable specific standards, 

shall be so designed and constructed as to prevent the operator from having any 

part of his body in the danger zone during the operating cycle. 

The Secretary alleges that ingoing nip points were not guarded at the point of operation 

on the Chrome Mill, the Kobe Mill, Mill One, and Mill Three. (S. Br. 29). Respondent contends 

that guarding was infeasible. (R. Br. 28). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.212(a)(3)(ii). 

The standard applied and employees were exposed to the hazard. 

Each mill had a point of operation where the mill operator performed work on the rubber 

being processed. The standard applied. 

Working at the ingoing nips points was a routine step in processing the rubber on all four 

mills. An employee operating the Chrome Mill was injured when his left hand was pulled into 

the ingoing nip point while he was manipulating the rubber product. Exposure is established. 

Home Rubber had knowledge of the hazard 

26 The classification of a citation as serious is not based on the likelihood of occurrence, but instead is 

related to the severity of harm when an accident occurs. See Mosser, 23 BNA OSHC at 1046. 
37 

The mills were large and in plain view. Operators worked near each mill’s ingoing nip 

points to make the rubber products. Home Rubber’s managers were in the production area “all

the time every day.” (Tr. 345). Mr. Bole routinely travelled through the various departments. 

(Tr. 330). Managers would have seen operators working at a mill’s ingoing nip points. 

Because the machines were in plain view and management knew that employees were 

routinely near the ingoing nip points when working on the rubber product, knowledge of the 

hazard is established. See Hamilton, 16 BNA OSHC at 1091 (an employer has constructive 

knowledge of conditions that are apparent to its supervisory personnel).

The terms of the standard were violated.

To produce a 1-inch thick sheet of thoroughly mixed rubber compound, an operator

began by placing a block of natural rubber into the mill’s ingoing nip point.27 (Tr. 410, 418-19). 

After placed into the nip, the rubber block went around the rollers and “just like chewing gum” 

the rubber started to soften until it warmed up enough to bond around the roller and smooth out. 

(Tr. 411). When that happened, the operator added ingredients, including chemicals, binders, 

and oils, to the rubber. (Tr. 411-12). The ingredients were in pellet, powder, or oil form. (Tr. 

418). Chemicals added to the rubber included carbon black, sulfur, and Industrene R. (Tr. 147; 

Ex. P-7). 

A mill operator poured the additives into the rubber at the ingoing nip point of the rollers. 

(Tr. 410, 412, 418). Some of the added ingredients mixed into the rubber and some fell into a 

pan beneath the rollers. (Tr. 418). During the first 10-15 minutes of the mixing process, the 

mill operator scooped up the ingredients that fell through the rollers and added them back into 

the rubber compound at the ingoing nip point. (Tr. 418-19). The rubber and additives were 

continuously fed back through the rollers to create a final, compounded product. (Tr. 416). 

When processing the rubber, the operator folded the rubber back into itself to achieve a 

final well-mixed 1-inch sheet of rubber compound. (Tr. 412, 416, 419). The operator cut the 

rubber sheet just below the center-point of the roller, where he had leverage in front of his chest. 

He then held the rubber against the roller to build a mound of banked rubber at the rollers’ nip 

point. (Tr. 413). The banked rubber compound could be up to 16 inches high. (Tr. 415). The

27 The operator adds half of the 75-pound block of the natural rubber into the in-running nip area of the 

machine’s rollers at a time. (Tr. 410, 415). 
38 

operator built the rubber compound into a loose, round cylinder that allowed the machine to

carry the rubber sheet back up to the bank so that was pulled in again. (Tr. 416). 

The manufacturing process required an operator to work near the mill’s ingoing nip 

points. The point of operation (ingoing nip point) on the Chrome Mill was not guarded. Instead, 

the Chrome Mill had a brake cord 61 inches above the ground, at an employee’s head or shoulder 

height. (Tr. 70-71, 168, 194; Ex. P-17, pp. 5, 7). When pulled, the brake cord stopped and 

reversed the machine’s roller. (Tr. 194-95). However, it did not prevent an operator from 

contacting the nip point as he fed the rubber into the machine. (Tr. 68). 

Mill One had an overhead brake cord (trip wire) as well. There was no guard at Mill

One’s point of operation. (Tr. 68, 72; Ex. P-17, p. 8). The Kobe Mill had a non-adjustable

safety bar near the bottom of the mill that stopped the mill when contacted. (Tr. 68-69, 167). 

The bar might have prevented a shorter employee from reaching the nip point; however, a taller 

operator could reach into the machine while feeding the rubber into the nip point. There was no 

guard at the Kobe Mill’s point of operation. (Tr. 69-71; Ex. P-17, p. 6). Mill Three’s nip point 

area was also unguarded. (Tr. 68; Ex. P-17, p. 1). 

There is no dispute the four machines did not have guards to prevent an employee placing 

his hands into the ingoing nip points. The Secretary proved the points of operation on the four

mills were not guarded and the standard was violated. However, Home Rubber asserts that it 

was infeasible to guard the point of operation for the four mills because the operators had to 

work near the ingoing nip points to process the rubber. 

Infeasibility Defense

To succeed in an infeasibility defense the Respondent must show that: (1) literal 

compliance with the terms of the cited standard was infeasible; and (2) an alternative protective 

measure was used or there was no feasible alternative measure. Otis Elevator Co., 24 BNA 

OSHC 1081, 1087 (No. 09-1278, 2013), aff'd, 762 F.3d 116 (D.C. Cir. 2014). Infeasibility can 

be either economic or technological. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-

1167, 1994). Respondent bears the burden of proof for this defense. See Briones Util. Co., 26 

BNA OSHC 1218, 1220 (No. 10-1372, 2016). 

To succeed with an economic infeasibility defense the employer must show that the cost 

of compliance would have adversely affected the company’s existence. Gregory & Cook, Inc.,

17 BNA OSHC 1189, 1191 (No. 92-1891, 1995) (Gregory). Home Rubber made no argument 
39 

and presented no evidence of the costs of compliance or the effect on the company’s finances. 

This leaves a defense based solely on technological infeasibility. 

First, Respondent must demonstrate that literal compliance was infeasible. Respondent 

asserts that a physical guard cannot be placed between the ingoing nip point and the operator’s 

hands because of its manufacturing method. The processing of the rubber compound requires its 

operators to manipulate the rubber and additives near the nip point and the banking of rubber

during mixing prevents the use of a barrier near the nip point. (Tr. 418-19). A fixed guarding 

approach cannot be used because it blocks an operator’s access to the materials that fall between 

the rollers, which must be scooped up and put back into the rubber being mixed. (Tr. 418-19; 

Ex. P-38, p. 18). Further, it would block the operator from getting to the bottom of the roller to

cut off the rubber and feed it back into the nip. (Tr. 419). 

Respondent established that a simple barrier guard could not be used. However, guarding 

is not limited to a physical barrier. As set forth in 29 C.F.R. § 1910.212(a)(1), “guarding 

methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.”

Respondent has not demonstrated that it was infeasible to utilize non-barrier guarding methods. 

The Secretary’s expert, Dr. Howard,28 gave examples of other possible means to guard a 

machine. He suggested a conveyor system, raising the height of the mill, and using an e-stop 

safety mat. (Tr. 309, 314; Ex. P-38). Mr. Balka explained why Home Rubber had not tried these 

methods. (Tr. 417-423). 

Mr. Balka explained that a conveyor system would not work at Home Rubber, because a 

conveyor system high enough to allow for their rubber banking method, would require the 

ventilation hood be raised up four to five feet above the mill. (Tr. 421-22). At that distance, the 

ventilation hood would not be effective at keeping chemicals and other materials from escaping 

the area. (Tr. 421-22). 

 Mr. Balka also stated that raising the mill’s height 12-24 inches would not work. (Tr. 

416-422). An operator needed leverage to cut through the 1-inch rubber sheet on the roller; 

raising the mill would place the operator in a difficult and less safe position to make the cut. (Tr. 

28 Dr. William Howard was Secretary’s expert on the issue of machine guarding. (Tr. 298-326). Dr.

Howard visited Home Rubber’s facility and watched two of the mills operate for about 10 minutes each. 

(Tr. 317). He was an expert in machine design and guarding; however, he had no experience or 

knowledge of the specific type of rubber processing done at Home Rubber. (Tr. 305-06, 457-58).
40 

416, 422). Further, it would be more difficult for the operator to feed the rubber back into the 

mill’s nip point and the operator would not be able to see the ingredients that are mixed into the 

batch at the nip point. (Tr. 422). 

 Mr. Balka explained that the use of an e-stop safety mat device29 floor mat would be 

unusable because a mill operator had to get close to the rollers to cut the rubber and to scoop up 

the material that fell below. (Tr. 421-23). 

Respondent provided no evidence that it had attempted or explored possible guarding 

methods beyond a barrier guard. Mr. Balka admitted Home Rubber had not implemented any 

guarding or similar methods on the mills since the inspection. (Tr. 444-45). 

The burden for this affirmative defense lies with Respondent. Respondent must 

demonstrate that it was infeasible to utilize any guarding method, not just physical barrier 

guards. The definition of guarding methods includes “two-hand tripping devices [and] electronic 

safety devices.” Respondent did not determine whether a two-hand tripping device or electronic 

safety device could be used to prevent contact at the point of operation. The Commission 

expects “employers to exercise some creativity in seeking to achieve compliance.” Gregory, 17 

BNA OSHC at 1191. Respondent did not establish that all types of guarding methods would not 

work on Home Rubber’s mills. Thus, Respondent did not establish that literal compliance with 

the standard was infeasible. 

Secondly, if literal compliance is not feasible, Respondent must show that it used an

alternative measure or that no feasible measure was available, to support its infeasibility defense. 

Respondent had not explored all non-guarding options available that could prevent an employee 

from contact with the ingoing nip points on its mills. (Tr. 424-25, 444-45). 

Mr. Balka stated that he had not observed other local rubber manufacturers using the 

guarding methods suggested by Dr. Howard.30 (Tr. 424-25). This argument is rejected. 

Respondent cannot shift its burden for this affirmative defense to the Secretary with a claim that 

the Secretary’s expert did not propose an acceptable guarding method. Pitt-Des Moines, Inc., 16

BNA OSHC 1429, 1433 (No. 90-1349, 1993) (employer’s burden to show infeasibility as an 

29 A safety mat device is “a device consisting of a sensing surface and control, which detects the presence 

of a person on its surface.” (Ex. P-38, p. 20).

30 “Section 1910.212(a)(1) is specific in its requirements. Accordingly, a reference to industry custom and 

practice is unnecessary.” Ladish Co., 10 BNA OSHC 1235, 1238 (No. 78-1384, 1981) 
41 

affirmative defense, not the Secretary's burden to show feasibility). Further, an employer 

“cannot generally avoid abatement by relying on industry custom and practice alone.” Seibel 

Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1227 (No. 88-821, 1991); see, 

Consolidated Aluminum Corp., 9 BNA OSHC 1144, 1158 (No. 77-1091, 1980) (defense failed

where employer had not considered possible methods of preventing employees from contacting 

the ingoing nip points). This is especially so here, where Respondent made no effort to explore 

creative methods for guarding nor explored alternative means of protection. 

Respondent’s infeasibility defense fails because it did not demonstrate that literal 

compliance was infeasible, that an alternative protective measure was used or there was no 

feasible alternative measure available. 

I find the Secretary has proved his prima facie case and affirm the citation item. 

Serious Classification and Penalty 

The violation was classified as serious due to injuries that can occur if an employee is 

drawn into the ingoing nip points, including lacerations, broken bones, and amputation. (Tr. 69). 

Here, an employee’s hand was drawn into the nip point of the Chrome Mill resulting in 

amputation of four fingers. (Tr. 69). 

The gravity was rated as high and the maximum penalty was reduced by 30% for 

employer size to $8,730. (Tr. 70). I find the penalty adjustments are appropriate for this

violation. I affirm the serious classification and penalty of $8,730 for Citation 1, Item 11. 

Citation 1, Item 12 – Alleged serious violation of 29 C.F.R. § 1910.215(b)(9) 

(b) Guarding of abrasive wheel machinery— 

(9) Exposure adjustment. Safety guards of the types described in subparagraphs 

(3) and (4) of this paragraph, where the operator stands in front of the opening, 

shall be constructed so that the peripheral protecting member can be adjusted to 

the constantly decreasing diameter of the wheel. The maximum angular exposure

above the horizontal plane of the wheel spindle as specified in paragraphs (b)(3) 

and (4) of this section shall never be exceeded, and the distance between the 

wheel periphery and the adjustable tongue or the end of the peripheral member at 

the top shall never exceed one-fourth inch. 

(emphasis added.) 

The Secretary alleges that distances greater than one-fourth inch between the grinding 

wheel and the periphery existed because tongue guards were missing on both sides of a doublesided bench grinder. (S. Br. 31). Respondent states that it abated the condition by making the 
42 

needed adjustments and the condition was added to Home Rubber’s weekly inspection checklist. 

(R. Br. 29) 

For the following reasons, I find that the Secretary established a violation of the cited

standard, 29 C.F.R. § 1910.215(b)(9). 

The standard applied and employees were exposed. 

Employees sharpened their rubber-cutting knives on the double-sided bench grinder. 

(Tr. 74; Ex. P-18, p. 4). The standard applied and employees were exposed. 

The terms of the standard were violated.

The double-sided bench grinder was not adjusted to no more than one-quarter of an inch 

between the periphery and the grinding wheel. (Tr. 72-73). The CO measured the openings 

between the grinding wheel and the periphery on each side of the bench grinder. One side had a 

gap of one-half inch and the other a gap of three-fourths inch. (Tr. 74-75; Ex. P-18, pp. 5-6). 

Respondent does not refute the grinder was not compliant with the cited standard, but simply 

asserts it has fixed the problem. (R. Br. 29; Ex. R-1).

I find the standard was violated because the distance between the grinding wheel and the 

periphery exceeded one-fourth of an inch. 

Home Rubber had knowledge of the hazard. 

Home Rubber’s managers were in the production area daily. (Tr. 345). The grinder was 

in plain view. See Hamilton, 16 BNA OSHC at 1091 (an employer has constructive knowledge 

of conditions that are plainly visible to its supervisory personnel). Because the hazard was in 

plain view and managers could have known of the condition with reasonable diligence, 

knowledge is established. See NLLC, 19 BNA OSHC at 1472 (Reasonable diligence for 

constructive knowledge includes, among other factors, the “obligation to inspect the work area,

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

occurrence” of hazards.). 

Serious Classification and Penalty 

The classification of a citation as serious is not based on the likelihood of occurrence, but 

instead is related to the severity of harm when an accident occurs. See Mosser, 23 BNA OSHC 

at 1046. The citation was characterized as serious due to possible injuries, such as lacerations 

and amputations from a gap exceeding one-fourth inch. (Tr. 73). Respondent’s assertion that the 

classification should be other-than-serious is rejected. The gravity was rated as medium-lesser
43 

and reduced for employer size by 30% to $4,988. (Tr. 73.). I find these penalty adjustments are

appropriate for this violation. 

 I affirm the serious classification and penalty of $4,988 for Citation 1, Item 12. 

Citation 1, Item 13 – Alleged serious violation of 29 C.F.R. § 1910.219(i)(2) 

(i) Collars and couplings— 

(2) Couplings. Shaft couplings shall be so constructed as to present no hazard 

from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will,

however, be permitted where they are covered with safety sleeves or where they 

are used parallel with the shafting and are countersunk or else do not extend 

beyond the flange of the coupling. 

The Secretary alleges that a rotating shaft on the Kobe Mill had unguarded bolts that 

extended beyond the flange coupling. (S. Br. 32). Respondent contends that no one working 

near the machine could get clothing caught on the bolts and there had been no history of injuries

related to these bolts. (Tr. 397). 

The lack of prior injury is not a defense to a violation of the cited standard. Peacock, 26 

OSHC at 1590 (finding absence of prior injury not dispositive since goal of the Act is to prevent

the first accident). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard. 

The standard applied. 

 Bolts that protruded from a coupling on the Kobe Mill’s spinning shaft were not covered 

with a safety sleeve. The standard applied. 

Employees were exposed to the hazard and the terms of the standard were violated. 

There was no dispute the bolts extended from the shaft’s coupling and were not sleeved. 

The dispute lies in whether an employee would predictably contact these bolts during machine 

operation. 

The Commission has long held the definition of the hazard depends on how the machine 

functions and how it is operated. Fabricated, 18 BNA OSHC at 1074. To establish exposure 

under the cited standard, “the Secretary must show that it is reasonably predictable either by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or 

will be in the zone of danger.” Id. The zone of danger is “that area surrounding the violative 
44 

condition that presents the danger to employees [that] the standard is intended to prevent.” S&G, 

19 BNA OSHC at 1507. 

As discussed above, the Kobe Mill was a series of interconnected modules resting on an 

I-beam platform. (Tr. 394-397). A horizontal shaft between the mill’s motor and the gear box 

had a flange coupling with bolts that protruded one inch. (Tr. 397, 77; Ex. P-19, p. 5). The shaft 

rotated at 1700 rpm during the mill’s operation. (Tr. 76; Ex. P-19, p. 1). The coupling with the 

protruding bolts was about eight inches to the right of the gearbox. (Tr. 397). The shaft was 

about 15 inches from the front edge of the raised platform the Kobe Mill rested on. (Tr. 398). 

Employees walked along the front edge of the mill’s platform during operation. (Tr. 399; Ex. R23, #P1040677). 

I find an employee could inadvertently contact these bolts because employees worked in 

close proximity to the rotating shaft. The gears powering the Kobe Mill’s rollers were constantly 

bathed in oil during operations. (Tr. 400-03). A bucket used to add oil into the gear box as the 

oil level dissipated was placed on the floor directly in front of the coupling’s bolts.31 (Tr. 399, 

400-03; Ex. R-23, #P1040677). Employees walked past the rotating shaft during the mill’s 

operation, as illustrated in the video taken by the CO. (Tr. 76, 197-98; Ex. P-40, video #12). 

The video shows the employee was at least as close as 15 inches when he walked by the spinning 

bolts on the coupling. Further, the bucket placed directly in front of the coupling demonstrated

an employee was near the rotating shaft when oil was added during the mill’s operation. There 

was no barrier or structure to prevent an employee from placing a hand on the shaft or from 

standing on the platform directly in front of the spinning shaft. 

The standard was violated because the bolts that extended past the flange of the coupling 

were not covered with a safety sleeve. Further, employees were exposed to the bolts on the 

rotating shaft while the Kobe Mill operated. 

Home Rubber had knowledge of the hazard. 

 The Kobe Mill was a large machine and in plain view. As the CO was recording a video 

of the machine in operation, the operator walked along the front edge of the Kobe Mill. (Ex. P40, Video #12). Mr. Balka stated that Home Rubber’s managers were in the production area “all

the time every day.” (Tr. 345). 

31 The photograph also shows a large drum of oil nearby. (Ex. P-19, p. 4). 
45 

Because the spinning shaft was in plain view and management knew that employees 

worked in the area, knowledge of the hazard is established. See Hamilton, 16 BNA OSHC at 

1091 (an employer has knowledge of conditions that are plainly visible to its supervisory 

personnel). 

Serious Classification and Penalty 

The citation was characterized as serious32 due to possible injuries, such as broken bones, 

if clothing was caught and an employee was pulled into the machine’s rotating parts. (Tr. 76). 

The gravity was rated as moderate and the penalty was reduced by 30% to $4,988 for employer 

size. (Tr. 77; Ex. P-19). I find these penalty adjustments are appropriate for this violation. I 

affirm the serious classification and penalty of $4,988 for Citation 1, Item 13. 

Citation 1, Item 14 – Alleged serious violation of 29 C.F.R. § 1910.242(b) 

(b) Compressed air used for cleaning. Compressed air shall not be used for 

cleaning purposes except where reduced to less than 30 p.s.i. and then only with

effective chip guarding and personal protective equipment. 

The Secretary alleges that employees used compressed air above 30 p.s.i. to clean 

clothing without the use of effective chip guarding and personal protective equipment. (S. Br. 

34). Respondent contends that it was unaware employees used the compressed air to clean 

clothing and the serious classification is excessive. (R. Br. 31).

For the following reasons, I find that the Secretary established a violation of the cited

standard. 

The standard applied, its terms were violated, and employees were exposed.

 The CO observed an employee using compressed air to clean off his clothing. (Tr. 79-

80). Employees told the CO they used the air to clean off the mills and to clean dust from their 

clothes. (Tr. 79). Photographs taken by the CO show the setting was above 90 p.s.i. (Tr. 79-81; 

Ex. P-20, pp. 4-5).

The standard was violated, employees were exposed, and the standard applied. 

Home Rubber had knowledge of the hazard. 

An employer has constructive knowledge of conditions that are plainly visible to its 

supervisory personnel. See Hamilton, 16 BNA OSHC at 1091. 

32 The classification of a citation as serious is not based on the likelihood of occurrence, but instead is 

related to the severity of harm when an accident occurs. See Mosser, 23 BNA OSHC at 1046. 
46 

Employees used the compressed air in plain view, as witnessed by the CO. (Tr. 79). 

Home Rubber management employees were in the production area every day; Mr. Bole, plant

manager, and R.B., maintenance manager, walked the plant throughout the week looking for 

safety hazards. (Tr. 79-80, 330, 345). Additionally, text on the face of the compressed air device 

stated that a setting above 30 p.s.i. was a federal violation. (Ex. P-20, p. 5). Knowledge is 

established. 

Serious Classification and Penalty 

The classification of a citation as serious is not based on the likelihood of occurrence, but 

instead is related to the severity of harm when an accident occurs. See Mosser, 23 BNA OSHC

at 1046. The citation was classified as serious due to possible injuries of particles blown into the 

eye and embolism if the nozzle deadheaded against skin. (Tr. 78-79). Respondent’s argument 

the classification should be other-than serious is rejected. The gravity was rated as low and the 

penalty was reduced for employer size by 30% to $3,741. (Ex. P-20). I find these penalty 

adjustments are appropriate for this violation. I affirm the serious classification and penalty of 

$3,741 for Citation 1, Item 14. 

Citation 1, Items 15a, 15b, 15c, and 15d 

These four alleged serious violations of the electrical standard were grouped together for 

a proposed penalty of $3,742. The four violations are for improperly installed equipment, 

broken equipment, a missing receptacle cover and an unclosed opening on a receptacle in the 

Mill Three area. 

With respect to Item 15a, Respondent contends the violation should be classified as 

other-than-serious because the hazard was remedied during the inspection. For Items 15b, 15c, 

and 15d, Respondent contends these items are impermissibly duplicative because they arise from 

the same factual scenario. (R. Br. 31-33). 

As discussed separately below, the Secretary proved applicability, exposure and a 

violation of each cited standard. The four citations are combined for discussion of knowledge. 

Citation 1, Item 15a, 29 C.F.R. § 1910.303(b)(2) applied, was violated, and employees were 

exposed. 

(b) Examination, installation, and use of equipment. . .. (2) Installation and use. 

Listed or labeled equipment shall be installed and used in accordance with any 

instructions included in the listing or labeling. 
47 

The CO observed and photographed a 2x4 receptacle box near Mill Three that was 

designed to be mounted to the wall. Instead of being mounted to the wall, it was suspended by 

an electrical cord that ran over a door frame and was used to power two fans. (Tr. 82-83; Ex. P21, p.4). The standard applied. The unmounted receptacle box was not installed as designed; 

thus, the standard was violated. Employees worked in and around the Mill Three area. Exposure 

is established. 

Citation 1, Item 15b, 29 C.F.R. § 1910.303(b)(7)(iv) applied, was violated, and employees were 

exposed. 

(iv) There shall be no damaged parts that may adversely affect safe operation or 

mechanical strength of the equipment, such as parts that are broken, bent, cut, or 

deteriorated by corrosion, chemical action, or overheating. 

The CO observed and photographed a junction box in the Mill Three area with a broken 

conduit line. (Tr. 84, 86; Ex. P-22, p. 4). The standard applied. Respondent does not dispute the 

line was broken. The conduit line was damaged; thus, the standard was violated. Employees

worked in and around the Mill Three area. Exposure is established.

Citation 1, Item 15c, 29 C.F.R. § 1910.305(b)(1)(ii) applied, was violated, and employees were 

exposed. 

 

(b) Cabinets, boxes, and fittings (1) Conductors entering boxes, cabinets, or 

fittings. . .. (ii) Unused openings in cabinets, boxes, and fittings shall be 

effectively closed. 

The CO observed and photographed an unmounted 2x4-inch metal receptacle box near 

the Mill Three area that had an opening at the top. (Tr. 86; Ex. P-23, p. 4 #30). The standard 

applied. The opening allowed dust to get inside causing a fire hazard from dust buildup. (Tr. 86). 

Respondent does not dispute there was an unclosed opening in the receptacle box. The box’s 

opening was not closed; thus, the standard was violated. Employees worked in and around Mill 

Three area. Exposure is established. 

Citation 1, Item 15d, 29 C.F.R. § 1910.305(b)(2)(i) applied, was violated, and employees were 

exposed. 

 

(b) (2) Covers and canopies. (i) All pull boxes, junction boxes, and fittings shall 

be provided with covers identified for the purpose. If metal covers are used, they 

shall be grounded. In completed installations, each outlet box shall have a cover, 

faceplate, or fixture canopy. Covers of outlet boxes having holes through which 

flexible cord pendants pass shall be provided with bushings designed for the 
48 

purpose or shall have smooth, well-rounded surfaces on which the cords may 

bear. 

The CO observed and photographed a wall-mounted 2x4 inch metal receptacle box, used 

to power the unmounted receptacle, that did not have a cover. (Tr. 88; Ex. P-23, p. 4 #29). The 

Respondent does not dispute the cover was missing. The wall-mounted receptacle box’s cover

was missing; thus, the standard was violated. Employees worked in and around the Mill Three 

area. Exposure is established.

Items 15a, 15b, 15c, and 15d are not duplicative. 

The Commission may find a citation duplicative where the “standards cited require the 

same abatement measures, or where abatement of one citation item will necessarily result in the

abatement of the other item as well.” Rawson Contractors, Inc., 20 BNA OSHC1078, 1082 n.5 

(No. 99-0018, 2003) citing Flint Eng’g. & Constr. Co., 15 BNA OSHC 2052, 2056-57 (No. 90-

2873, 1992). 

Here, each item requires a separate abatement measure. Respondent’s assertion that the 

items are duplicative is rejected. 

Knowledge for Citation 1, Items 15a, 15b, 15c, and 15d. 

The unmounted, hanging receptacle box in items 15a and 15c was in plain view just 

outside the Mill Three production area. (Tr. 82; Ex. P-21, pp. 4-5). The broken conduit line of 

item 15b was in plain view near Mill Three. (Tr. 84, 86; Ex. P-22, p. 4 #30). The wall-mounted 

receptacle box of item 15d was also in plain view in the Mill Three area. (Ex. P-23, p. 4 #29). 

All violative conditions were in plain view. Home Rubber management employees were 

in the production area every day and the plant manager and maintenance manager walked the 

plant throughout the week looking for safety hazards. (Tr. 79-80, 330, 345). An employer has 

constructive knowledge of conditions that are plainly visible to its supervisory personnel. 

See Hamilton, 16 BNA OSHC at 1091. Knowledge is established. 

Serious classification and penalty for Citation 1, Items 15a, 15b, 15c, and 15d. 

The classification of a citation as serious is related to the severity of harm when an 

accident occurs, not the likelihood of occurrence. See Mosser, 23 BNA OSHC at 1046. The 

citation items were classified as serious due to possible injuries from electrical shock and burns. 

(Tr. 82, 84-86, 88). For item 15a, wires can become loose inside an unmounted receptacle box 

and electrify the box. (Tr. 82). For item 15b, the conduit to the junction box was broken 
49 

exposing the conductors inside. (Tr. 84-85). For time 15c, the opening on the top of the 

unmounted 2x4 receptacle box allowed dust to accumulate inside creating a fire hazard. (Tr. 86). 

For item 15d, the mounted receptacle box had a missing cover allowing employee contact with 

the wires inside the box. (Tr. 88). Respondent’s argument the classification should be otherthan-serious is rejected. 

The gravity was rated as low and the penalty was reduced for employer size by 30% to 

$3,742. (Ex. P-21, Ex. P-22, Ex. P-23, Ex. P-24). I find these penalty adjustments are 

appropriate for these violations. 33 I affirm the serious classification and the grouped penalty of

$3,742 for Citation 1, Items 15a, 15b, 15c, and 15d. 

Citation 1, Item 16 – Alleged serious violation of 29 C.F.R. § 1910.305(g)(2)(iii) 

(g) Flexible cords and cables . . . (2) Identification, splices, and terminations. . .. 

(iii) Flexible cords and cables shall be connected to devices and fittings so that 

strain relief is provided that will prevent pull from being directly transmitted to

joints or terminal screws.

The Secretary alleges that flexible cords in the Mill department had torn strain relief in 

three instances: a control panel for the slitter machine, an extension cord to a pedestal fan in Mill 

Three area, and an electrical safety bar near the Kobe warm-up mill. (S. Br. 37). 

For the following reasons, I find the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.305(g)(2)(iii). 

The standard applied, its terms were violated, and employees were exposed. 

The CO observed and photographed the three flexible cords used to power a pedestal fan

in the Mill room, a safety bar on the Kobe Mill, and the control panel of a slitter machine. (Tr. 

89-91; Ex. P-25, pp. 5-7). The control panel to the slitter machine’s cord had torn strain relief.34 

(Tr. 89; Ex. P-25, p. 7). The extension cord to a pedestal fan used to cool rubber in the Mill 

Three area had torn strain relief at both ends. (Tr. 89; Ex. P-25, p. 7). And, the flexible cord that 

powered a safety bar on the Kobe Mill had torn strain relief. (Tr. 89-90; Ex. P-25, pp. 5, 6). 

33 Respondent asserted the penalty amounts were excessive and cited two unreviewed ALJ decisions as 

support for this assertion. Because these decisions have no precedential value, Respondent’s argument is 

rejected. See Elliot, 23 BNA OSHC at 2114 n.4 (Unreviewed administrative law judge decisions have no 

precedential value.). 

34 This was repaired during the CO’s inspection. (Tr. 89).
50 

Employees worked in these areas several times a week or daily. (Tr. 38, 89, 344). I find the 

standard’s requirements were violated, employees were exposed, and the standard applied.

Home Rubber had knowledge of the hazard. 

Photographs show the damaged strain relief was in plain view. (Tr. 90-91, Ex. P-25, pp. 

5-7). Home Rubber management employees were in the production area every day and Mr. 

Bole, plant manager, and R.B., maintenance manager, walked the plant throughout the week 

looking for safety hazards. (Tr. 79-80, 90, 330, 345). An employer has constructive knowledge 

of conditions that are plainly visible to its supervisory personnel. See Hamilton, 16 BNA OSHC 

at 1091. Knowledge is established. 

Serious Classification and Penalty 

Respondent contends that the violation should be classified as other-than-serious. (R. Br. 

34). The classification of a citation as serious is related to the severity of harm when an accident 

occurs, not the likelihood of occurrence. See Mosser, 23 BNA OSHC at 1046. Respondent’s 

argument the classification should be other-than-serious is rejected. 

The citation was classified as serious because when the strain relief is torn, conductor 

wires are exposed and can become damaged, which can result in fire and related injuries, such 

as, burns. (Tr. 90). The gravity was rated as low and a 30% size reduction was applied for a

penalty of $3,742. (Tr. 90). I find these penalty adjustments are appropriate for this violation. I 

affirm the serious classification and penalty of $3,742 for Citation 1, Item 16. 

Citation 1, Items 17a & 17b 

Citation 1, Item 17a alleged a serious violation of 29 C.F.R. § 1910.1030(c)(1)(i): 

Bloodborne pathogens. . .. (c) Exposure control--(1) Exposure Control Plan. (i) 

Each employer having an employee(s) with occupational exposure35 as defined by 

paragraph (b) of this section shall establish a written Exposure Control Plan 

designed to eliminate or minimize employee exposure. 

Citation 1, Item 17b alleged a serious violation of 29 C.F.R. § 1910.1030(g)(2)(i): 

Bloodborne pathogens. . .. (g) Communication of hazards to employees . . . (2) 

Information and Training. (i) The employer shall train each employee with 

35 Occupational Exposure means “reasonably anticipated skin, eye, mucous membrane, or parenteral 

contact with blood or other potentially infectious materials that may result from the performance of an 

employee's duties.” 29 C.F.R. § 1910.1030(b). 
51 

occupational exposure in accordance with the requirements of this section. Such 

training must be provided at no cost to the employee and during working hours. 

The employer shall institute a training program and ensure employee participation 

in the program. 

With respect to Item 17a, the Secretary alleges that Respondent did not develop and 

implement a written bloodborne pathogen Exposure Control Plan for employees that were 

expected to cleanup blood or bodily fluids. With respect to Item 17b, the Secretary alleges that

Respondent did not provide a bloodborne pathogen training program for employees that were 

expected to cleanup blood or bodily fluids. (S. Br. 38, 40). 

For the following reasons, I find that the Secretary established a violation of the cited 

standards, 29 C.F.R. § 1910.1030(c)(1)(i) and § 1910.1030(g)(2)(i). 

The standards applied and the standards were violated. 

Because employees used knives to cut rubber there was always a possibility an employee 

could be cut. (Tr. 312, 416). Maintenance employees were expected to clean up blood in the 

plant. (Tr. 91-92, 312). The standard applied. 

The employees tasked with cleaning up the blood told the CO that Home Rubber had not 

provided training.36 (Tr. 93). Mr. Balka thought there had been training, but there was no record

of training in the office of the original safety and compliance manager, Mr. Zigler. (Tr. 426). 

Home Rubber had not provided bloodborne pathogen training. 

Mr. Balka thought Home Rubber had a written policy; instead, he found it was merely a 

pamphlet from the National Safety Council. (Tr. 92, 425-26; Ex. R-15). Respondent admits it 

did not have a written Exposure Control Plan for bloodborne pathogens. (R. Br. 35). 

36 Mr. Balka believed that the maintenance manager, R.B., had received training outside of Home Rubber 

due to his work as a volunteer fireman. (Tr. 430). Nonetheless, this does not relieve Home Rubber’s duty 

under the cited standard to provide an Exposure Control Plan and training. See Gary Concrete Prod., 

Inc., 15 BNA OSHC 1051, 1055 (No. 86-1087, 1991) (employer cannot rely on employee’s judgment, 

work experience or non-specific training); A.P. O'Horo Co., 14 BNA OSHC 2004, 2010 (No. 85-369, 

1991) (improper for the employer to rely entirely on the prior experience of its crew in lieu of providing 

specific trenching instruction tailored to the job at hand).
52 

 Home Rubber violated the standard’s requirements because it did not establish a written 

Exposure Control Plan and did not provide training to the employees assigned to clean up blood. 

Employees were exposed to the hazard. 

Maintenance employees were responsible for cleaning up blood at Home Rubber. (Tr. 

92). On May 6, 2016, two maintenance employees cleaned up the blood after a mill operator’s 

hand was caught in the Chrome Mill. (Tr. 92). Employee exposure is established. 

Home Rubber had knowledge of the hazard. 

Mr. Balka knew that knives were used to cut the rubber so there was a risk of blood from 

cuts. (Tr. 312, 416). Both Mr. Balka and Mr. Bole, plant manager, expected the maintenance 

employees to clean up the blood. (Tr. 335, 368, 427-28). Mr. Balka was nearby immediately 

after the accident and knew that R.B. and V.D. cleaned up the blood. (Tr. 427-28). Mr. Balka

knew a bloodborne pathogen policy and training were needed but did not ensure the policy and 

training were developed and implemented. (Tr. 426). See Phoenix, 17 BNA OSHC at 1079-

1080 (knowledge is directed to the physical condition that constitutes the violation). Knowledge 

is established. 

Serious Classification and Penalty

 Respondent contends the violations should be classified as other-than-serious because 

management mistakenly believed it had a written bloodborne pathogen policy and training 

program. (R. Br. 34-35). The classification of a citation as serious is not based on the likelihood 

of occurrence, but instead is related to the severity of harm when an accident occurs. See 

Mosser, 23 BNA OSHC at 1046. The citation items were classified as serious because of the 

potential of exposure to pathogens in the blood, such as Hepatitis B. (Tr. 92). Respondent’s 

argument the classification should be other-than serious is rejected. 

The gravity was rated as moderate and the penalty was adjusted 30% for the employer’s 

size resulting in a grouped penalty of $6,236 for the two items. (Ex. P-26, p. 1). I find these

penalty adjustments are appropriate for these violations. I affirm the serious classification and 

grouped penalty of $6,236 for Citation 1, Item 17a and Item 17b. 

Citation 1, Item 18 – Alleged serious violation of 29 C.F.R. § 1910.1030(f)(2)(i) 

(2) Hepatitis B Vaccination. (i) Hepatitis B vaccination shall be made available 

after the employee has received the training required in paragraph (g)(2)(vii)(I) 

and within 10 working days of initial assignment to all employees who have 

occupational exposure unless the employee has previously received the complete 
53 

hepatitis B vaccination series, antibody testing has revealed that the employee is 

immune, or the vaccine is contraindicated for medical reasons.

The Secretary alleges that upon initial assignment to the Mill department Respondent did 

not provide the Hepatitis B vaccination for employees that were expected to cleanup blood and

bodily fluids. (S. Br. 41). Respondent contends that the one of the employees had already 

received the vaccine and the other employee declined. (R. Br. 36-37). 

For the following reasons, I find that the Secretary established a violation of the cited 

standard, 29 C.F.R. § 1910.1030(f)(2)(i). 

The standard applied and employees were exposed.

Maintenance department employees working in the Mill department were expected to 

clean up blood and bodily fluids, thus Home Rubber was required to offer the Hepatitis B 

vaccine within 10 days of assignment. (Tr. 94). The standard applied. 

On May 6, 2016, maintenance employees cleaned up the blood after an accident in the

Chrome Mill area. (Tr. 92-93). Employee exposure is established. 

The standard was violated.

During the inspection, the maintenance employee, V.D., told the CO he had not received 

a Hepatitis B vaccination. (Tr. 94-95, 182-83). Mr. Balka testified that just after the accident, he 

did not know if the vaccine was offered to V.D. (Tr. 335). Maintenance manager R.B. had 

received the Hepatitis B vaccination before working at Home Rubber. (Tr. 430). 

As a part of its abatement documentation, Home Rubber submitted a waiver from V.D.

that stated the Hepatitis B vaccine had been offered and he declined the vaccination. (Ex. R-1, 

p. 16). The waiver was dated January 9, 2017. Id. Home Rubber was required to offer the 

vaccine to a maintenance employee within 10 days of initial assignment. Even if May 6, 2016, 

was considered the initial day of assignment, a waiver dated January 9, 2017 was not within ten 

days of that assignment. The standard’s requirements were violated.

Home Rubber had knowledge of the hazard. 

Mr. Balka knew that maintenance employees cleaned up the blood after the accident. 

(Tr. 427-28). See Phoenix, 17 BNA OSHC at 1079-1080 (knowledge is directed to the physical 

condition that constitutes the violation). Mr. Balka did not know whether the Hepatitis B 

vaccine had been offered to employees. (Tr. 335). Knowledge is established because with 

reasonable diligence Mr. Balka would have known the vaccine was not offered to maintenance 
54 

employees within 10 days of assignment to the maintenance department. See NLLC, 19 BNA 

OSHC at 1472 (Reasonable diligence for constructive knowledge includes, among other factors,

the “obligation to . . . take measures to prevent the occurrence” of hazards.) 

Serious Classification and Penalty 

The citation was classified as serious because of potential exposure to bloodborne 

pathogens, such as Hepatitis B. (Tr. 95). The classification of a citation as serious is not based 

on the likelihood of occurrence, but instead is related to the severity of harm when an accident 

occurs. See Mosser, 23 BNA OSHC at 1046. Respondent’s argument the classification should 

be other-than-serious is rejected. The gravity was rated as moderate and adjusted 30% for 

employer size to $6,236. (Tr. 95; Ex. P-28, p. 1). These penalty adjustments are appropriate for 

this violation. 

The serious classification and penalty of $6,236 for Citation 1, Item 18 is affirmed. 

OTHER-THAN-SERIOUS CITATIONS 

Citation 3, Item 1 – Alleged other-than-serious violation of 29 C.F.R. § 1904.39(a)(2)

(a) Basic requirement. . .. (2) Within twenty-four (24) hours after the inpatient hospitalization of one or more employees or an employee's amputation 

or an employee's loss of an eye, as a result of a work-related incident, you 

must report the in-patient hospitalization, amputation, or loss of an eye to 

OSHA. 

 

The Secretary alleges that Respondent did not report the work-related in-patient 

hospitalization and amputation that occurred on May 6, 2016. (S. Br. 42). Respondent contends 

the accident and hospitalization were reported on the next business day, Monday, May 9, 2016.

(R. Br. 37). 

The standard applied, employees were exposed, the standard was violated, and knowledge is

established. 

 Employers are required to notify OSHA within 24 hours of an inpatient hospitalization 

related to a work injury. There is no dispute that Respondent did not notify OSHA within 24 

hours of the in-patient hospitalization of the mill operator. The injury occurred at approximately

11:15 a.m. on May 6 and the employee was hospitalized that afternoon. (Tr. 429; Ex. P-31, p. 2). 

Employee exposure and applicability are established. 

Home Rubber notified OSHA on May 9, three days after the accident. (Tr. 102, 429). 

Because the accident occurred on Friday, Mr. Balka thought he could report the next business 
55 

day, Monday, May 9. (Tr. 430). Nonetheless, the standard’s 24-hour requirement is clear. (Tr. 

429). A violation of the standard occurred because Respondent did not notify OSHA of the 

hospitalization within 24 hours. 

Mr. Balka was at the mill when the employee was injured and knew the employee was 

admitted to the hospital on Friday, May 6. Knowledge is established. 

Other-than-serious Classification and Penalty

The citation was classified as other-than-serious because it was a reporting violation and 

the cited hazard would not likely lead to death or serious injury. (Tr. 103); See generally, Super 

Excavators, Inc., 15 BNA OSHC 1313, 1317 (No. 89-2253, 1991) (lack of MSDS would not 

result in serious injury); see also, Crescent, 1 BNA OSHC at 1222. The maximum penalty for an

other-than-serious violation is $12,471.37 

Citation 3, Item 1 was grouped with Item 2 and Item 3 for a $3,500 proposed penalty. (S. 

Br. 42-43). The other-than-serious classification for Citation 3, Item 1 is affirmed and the 

grouped penalty of $3,500 is assessed. 

Citation 3, Item 2 – Alleged other-than-serious violation of 29 C.F.R. § 1910.134(k)(6)

(k) Training and information. . .. (6) The basic advisory information on

respirators, as presented in appendix D of this section, shall be provided by 

the employer in any written or oral format, to employees who wear respirators 

when such use is not required by this section or by the employer. 

The standard applied, employees were exposed, the standard was violated, and knowledge is 

established. 

 The standard applied because Home Rubber supplied N95 respirators (dust mask) for 

voluntary use by its employees. (Tr. 104). Employees working in the mill were not given the 

necessary information from appendix D about the use of the respirators. (Tr. 104). The standard 

was violated and employees were exposed. Mr. Bole and Mr. Balka knew the respirators were 

provided for employee use. (Tr. 105). Knowledge is established. 

37 OSHA established new penalties effective August 1, 2016 for violations occurring after November 2, 

2015, pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 

(2015). 81 Fed. Reg. 43430 (July 1, 2016). The violation in the instant case occurred after November 2, 

2015 and was assessed after August 1, 2016 and on or before January 13, 2017, thus the statutory 

maximum of $12,471 applied. Id. 
56 

The Secretary classified the cited hazard as other-than-serious. (Tr. 104-05). The penalty

was grouped with Citation 3, Item 1. The other-than-serious classification for Citation 3, Item 2 

is affirmed and the grouped penalty is assessed. 

Citation 3, Item 3 – Alleged other-than-serious violation of 29 C.F.R. § 1910.178(l)(6) 

(l) . . . (6) Certification. The employer shall certify that each operator has been 

trained and evaluated as required by this paragraph (l). The certification shall

include the name of the operator, the date of the training, the date of the 

evaluation, and the identity of the person(s) performing the training or 

evaluation. 

 

The standard applied, employees were exposed, the standard was violated, and knowledge 

established. 

The standard applied and employees were exposed because employees operated forklifts

at Home Rubber. (Tr. 63-64, 393). The standard was violated when the safety and compliance 

manager, Mr. Fisher, did not document the certification for a new employee as required by the

cited standard. (Tr. 105). Mr. Fisher knew that he had not documented the required information. 

As the safety and compliance manager, his knowledge is imputed to Home Rubber. See 

AEDC, 23 BNA OSHC at 2095. (Knowledge is imputed through an employer’s supervisory 

employees.) Knowledge is established. 

 The Secretary classified the cited hazard as other-than-serious. (Tr. 106). The penalty 

was grouped with Citation 3, Item 1. The other-than-serious classification for Citation 3, Item 3 

is affirmed and the grouped penalty assessed. 

Citation 3, Item 4 – Alleged other-than-serious violation of 29 C.F.R. § 1910.1200(e)(1) 

(e) Written hazard communication program. (1) Employers shall develop, 

implement, and maintain at each workplace, a written hazard communication 

program which at least describes how the criteria specified in paragraphs (f), 

(g), and (h) of this section for labels and other forms of warning, safety data 

sheets, and employee information and training will be met, and which also 

includes the following: (i) A list of the hazardous chemicals known to be 

present using a product identifier that is referenced on the appropriate safety

data sheet (the list may be compiled for the workplace as a whole or for 

individual work areas); and, (ii) The methods the employer will use to inform 

employees of the hazards of non-routine tasks (for example, the cleaning of 

reactor vessels), and the hazards associated with chemicals contained in 

unlabeled pipes in their work areas. 

 
57 

The standard applied, employees were exposed, the standard was violated, and knowledge is 

established. 

The standard applied because Home Rubber used hazardous chemicals in its rubber 

production. Mr. Balka provided the material safety data sheets for several chemicals used, 

including naptha, toluene, carbon black, sulfur, and Industrene R. (Tr. 107; Ex. P-34, pp. 5, 24, 

32, 132, 143). There was no written hazard communication plan for the employees that used the 

chemicals in their work areas. (Tr. 107). Thus, the standard was violated and employees were 

exposed. The material safety data sheets showed the hazards of the chemicals used. (Tr. 107-

08). Mr. Balka knew the chemicals were used daily and Home Rubber had no written program. 

(Tr. 107-08). Knowledge is established. 

 The Secretary proposed a zero penalty and classified the cited hazard as other-than 

serious because it was a violation for lack of documentation. (Tr. 107). The other-than-serious 

classification for Citation 3, Item 4 is affirmed and zero penalty assessed. 

Citation 3, Item 5 – Alleged other-than-serious violation of 29 C.F.R. § 1910.1200(h)(3)(iv) 

(h) Employee information and training. . . (3) Training. Employee training 

shall include at least: . . . (iv) The details of the hazard communication 

program developed by the employer, including an explanation of the labels

received on shipped containers and the workplace labeling system used by 

their employer; the safety data sheet, including the order of information and 

how employees can obtain and use the appropriate hazard information. 

The standard applied, employees were exposed, the standard was violated, and knowledge is 

established. 

The standard applied because employees used chemicals in rubber production. 

Employees were not trained on OSHA’s newly adopted global harmonization system, which 

would have provided information to employees about symbols on the safety data sheets and how 

to read a safety data sheet. (Tr. 109). The employees had received prior hazard communication 

training, but not on the new requirements of the standards. (Tr. 110). Employees were exposed 

and the standard was violated. Mr. Fisher, safety and compliance manager, knew the employees 

had not been trained. (Tr. 110). Knowledge is established. 

The Secretary proposed a zero penalty and classified the cited hazard as other-than 

serious. (Tr. 109). The other-than-serious classification for Citation 3, Item 5 is affirmed and 

zero penalty assessed. 
58 

In Summary

1. Home Rubber willfully violated the requirements to provide audiometric testing for 

employees operating Mill Three. 

2. Home Rubber did not prove that it was infeasible to guard the ingoing nip points on the 

Chrome Mill, Kobe Mill, Mill Three, and Mill One. 

3. The willful and serious violations were properly classified.

4. The Secretary proved his prima facie case for all thirty alleged violations. 

Findings Of Fact And Conclusions Of Law 

All findings of fact and conclusions of law relevant and necessary to a determination of 

the contested issues have been made in this decision. See Fed. R. Civ. P. 52(a). All proposed 

findings of fact and conclusions of law inconsistent with this decision are denied. 

ORDER

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED 

that: 

1. Citation 1, Item 1a, alleging a serious violation of 29 C.F.R. § 1910.22(a)(1) and Citation 

1, Item 1b, alleging a serious violation of 29 C.F.R. § 1910.22(a)(2), are AFFIRMED, 

and a grouped penalty of $6,236 is assessed. 

2. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1910.95(d)(1), is 

AFFIRMED, and a penalty of $8,730 is assessed. 

3. Citation 1, Item 3, alleging a serious violation of 29 C.F.R. § 1910.95(k)(1), is 

AFFIRMED, and a penalty of $8,730 is assessed.

4. Citation 1, Item 4, alleging a serious violation of 29 C.F.R. § 1910.106(e)(6)(ii), is 

AFFIRMED, and a penalty of $3,742 is assessed.

5. Citation 1, Item 5, alleging a serious violation of 29 C.F.R. § 1910.147(c)(6)(i), is 

AFFIRMED, and a penalty of $6,236 is assessed.

6. Citation 1, Item 6, alleging a serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(B), is 

AFFIRMED, and a penalty of $6,236 is assessed.

7. Citation 1, Item 7, alleging a serious violation of 29 C.F.R. § 1910.147(f)(3)(ii)(D), is 

AFFIRMED, and a penalty of $6,236 is assessed.
59 

8. Citation 1, Item 8, alleging a serious violation of 29 C.F.R. § 1910.157(g)(2), is 

AFFIRMED, and a penalty of $3,742 is assessed. 

9. Citation 1, Item 9, alleging a serious violation of 29 C.F.R. § 1910.178(l)(4)(iii), is

AFFIRMED, and a penalty of $4,988 is assessed.

10. Citation 1, Item 10, alleging a serious violation of 29 C.F.R. § 1910.212(a)(1), is

AFFIRMED, and a penalty of $4,988 is assessed.

11. Citation 1, Item 11, alleging a serious violation of 29 C.F.R. § 1910.212(a)(3)(ii), is

AFFIRMED, and a penalty of $8,730 is assessed.

 

12. Citation 1, Item 12, alleging a serious violation of 29 C.F.R. § 1910.215(b)(9), is 

AFFIRMED, and a penalty of $4,988 is assessed. 

13. Citation 1, Item 13, alleging a serious violation of 29 C.F.R. § 1910.219(i)(2), is

AFFIRMED, and a penalty of $4,988 is assessed.

 

14. Citation 1, Item 14, alleging a serious violation of 29 C.F.R. § 1910.242(b) is

AFFIRMED, and a penalty of $3,741 is assessed.

 

15. Citation 1, Item 15a, alleging a serious violation of 29 C.F.R. § 1910.303(b)(2), and 

Citation 1, Item 15b alleging a serious violation of 29 C.F.R. § 1910.303(b)(7)(iv), 

Citation 1, Item 15c alleging a serious violation of 29 C.F.R. § 1910.305(b)(1)(ii), and 

Citation 1, Item 15d alleging a serious violation of 29 C.F.R. § 1910.305(b)(2)(i) are 

AFFIRMED, and a grouped penalty of $3,742 is assessed.

16. Citation 1, Item 16, alleging a serious violation of 29 C.F.R. § 1910.305(g)(2)(iii) is 

AFFIRMED, and a penalty of $3,742 is assessed. 

17. Citation 1, Item 17a, alleging a serious violation of 29 C.F.R. § 1910.1030(c)(1)(i), and a 

serious violation Citation 1, Item 17b, 29 C.F.R. § 1910.1030(g)(2)(i) are AFFIRMED, 

and a grouped penalty of $6,236 is assessed.

18. Citation 1, Item 18, alleging a serious violation of 29 C.F.R. § 1910.1030(f)(2)(i) is 

AFFIRMED, and a penalty of $6,236 is assessed.

19. Citation 2, Item 1a, alleging a willful violation of 29 C.F.R. § 1910.95(g)(5)(i), and

Citation 2, Item 1b, alleging a willful violation of 29 C.F.R. § 1910.95(g)(6), are

AFFIRMED, and a grouped penalty of $74,825 is assessed.

20. Citation 3, Item 1, alleging an other-than-serious violation of 29 C.F.R. § 1904.39(a)(2) is 

AFFIRMED, and a grouped penalty of $3,500 is assessed for Citation 3, Items 1, 2 and 3. 

21. Citation 3, Item 2, alleging an other-than-serious violation of 29 C.F.R. § 1910.134(k)(6) 

is AFFIRMED and the penalty is grouped with Citation 3, Item 1. 
60 

 

22. Citation 3, Item 3, alleging an other-than-serious violation of 29 C.F.R. § 1910.178(l)(6) 

is AFFIRMED and the penalty is grouped with Citation 3, Item 1. 

23. Citation 3, Item 4, alleging an other-than-serious violation of 29 C.F.R. § 

1910.1200(e)(1) is AFFIRMED, and no penalty is assessed. 

24. Citation 3, Item 5, alleging an other-than-serious violation of 29 C.F.R. §

1910.1200(h)(3)(iv) is AFFIRMED, and no penalty is assessed.

 /s/ _________________________ 

Carol A. Baumerich

Judge, OSHRC

 Date: September 23, 2019 

Washington, D.C.