THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS 

PENDING COMMISSION REVIEW 

Some personal identifiers have been redacted for privacy purposes. 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

ACTING SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 20-0306 

SUNBELT RENTALS, INC., 

Respondent. 

DECISION AND ORDER 

Attorneys and Law firms 

Kenneth M. Rock, Adam Max Lubow, Marian Kousaie Toney, Attorneys, Office of the Solicitor, 

U.S. Department of Labor, Cleveland, OH, for Complainant. 

Travis W. Vance, Curtis G. Moore, Fisher & Phillips LLP, Charlotte, NC, for Respondent. 

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

I. INTRODUCTION 

An employee of Respondent Sunbelt Rentals, Inc. (Sunbelt) was injured on December 2, 

2019, when he was knocked from a ladder while trying to unjam an overhead garage door at the 

worksite. The United States Department of Labor, through its Occupational Safety and Health 

Administration (OSHA), investigated the accident and on January 27, 2020, the Secretary of Labor 

(Secretary) subsequently issued Sunbelt a three-item citation and notification of penalty under the 

Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651-678, alleging violations 

of OSHA’s Occupational Safety and Health Standards with proposed penalties totaling 

$34,698.00.1 Item 1 alleges a violation of 29 C.F.R. §1910.135(a) for Sunbelt’s failure to ensure 

1 On March 11, 2023, Julie A. Su became the Acting Secretary of Labor and was automatically substituted 

as a party pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. For ease of reference, she will be 

referred to as the Secretary herein. The Secretary of Labor has assigned responsibility for enforcement of 
 

 

 

 

 

 

 

 

 

employees wore proper Personal Protective Equipment (PPE), relevant here, head protection. 

Items and 2 and 3 allege violations of 29 C.F.R. §1910.147, the Control of Hazardous Energy 

(lockout/tagout) (LOTO) standard, for Sunbelt’s alleged failure to have a LOTO policy and alleged 

failure to train its employees on the recognition and control of hazardous energy. After Sunbelt 

timely contested the citation, the Secretary of Labor (Secretary) filed a complaint with the 

Commission (court) seeking an order affirming the citation and proposed penalty. Sunbelt 

answered contesting the citation and raising the unpreventable employee misconduct defense.

2 A 

bench trial was subsequently held. 

Based upon the record, the court concludes it has jurisdiction over the parties and subject 

matter in this case. (See Pretrial Order, Attach. C ¶ 1; see also Compl. ¶¶ II, III; Answer ¶¶ II, III). 

Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and the 

arguments of counsel, the court issues this Decision and Order, which constitutes its final 

disposition of the proceedings under section 661(j) of the Act. 29 U.S.C. § 661(j).3 For the reasons 

indicated infra, the court concludes the Secretary has satisfied all the elements of her prima facie 

case and rejects Sunbelt’s unpreventable employee misconduct defense. Therefore, the court 

affirms Citation 1, Items 1, 2, and 3 and assesses a penalty of $10,409 respectively for each item. 

II. BACKGROUND 

Sunbelt is one of the nation’s leading full-service equipment rental companies. (Ex. R-60 

at 6). The accident giving rise to OSHA’s inspection and subsequent citation occurred at Sunbelt’s 

facility located in Brook Park, Ohio (the “worksite”), which was part of Sunbelt’s Climate Control 

Division. Sunbelt’s employees working at that location were HVAC technicians. (Tr. 5:10-19; 

284:6-12). On that day, HVAC Technician [Redacted] discovered that an overhead garage door at 

the worksite was stuck on an overhead beam. (Tr. 69:23-70:16, 71:21-72:8). Sunbelt did not own 

the Act to OSHA and has delegated his authority under the Act to the Assistant Secretary for Occupational 

Safety and Health, who heads OSHA. See Order No. 1–2012, Delegation of Authority and Assignment of 

Responsibility to the Assistant Secretary for Occupational Safety and Health, 77 Fed. Reg. 3912 (Jan. 25, 

2012). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations 

and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” 

are used interchangeably herein. 

2 Attached to the complaint and adopted by reference was the citation at issue. (Compl., Ex. A) Commission 

Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a different part of the 

same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit 

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

3 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall 

be deemed so. 

2 
 

 

 

the worksite and rented the building and land at the worksite from a landlord and the worksite, 

including the overhead garage door, was owned by the landlord. (Tr. 752:18-15). The regular job 

duties of Sunbelt’s HVAC technicians are to clean, repair, deliver, and pick up company-owned 

equipment, such as temporary heating and air conditioning. Technicians are not expected to work 

on equipment apart from these company owned assets. (Tr. 130:13-22, 352:5-17, 392:14-25, 

752:10-17). Sunbelt does not rent overhead garage doors to its customers and HVAC technicians’ 

job duties do not include working on overhead garage doors. (Tr. 285:6-9, 508:4-18,130:13-22, 

352:5-17, 751:7-21). 

[Redacted] knew that repairing the garage door was not part of the Sunbelt employees’ 

responsibilities. (Tr. 73:14-21). While [Redacted] was an authorized person at Sunbelt for 

lockout/tagout (LOTO) purposes, [Redacted] had never performed lockout/tagout on a garage door 

because it was not equipment that Sunbelt technicians are assigned to work on. (Tr. 133:16-23). 

Instead, Sunbelt routinely contracts out building and door repairs to third-party vendors. (Tr. 

755:12-18). After noticing that the garage door was jammed open, [Redacted] called the landlord 

to notify him that the door needed to be repaired. (Tr. 73:5-13). The landlord told [Redacted] he 

would send a third-party vendor to repair the garage door who would arrive at the worksite within 

the hour. (Tr. 73:5-74:1). 

Gilberto Torres was the Profit Center Manager (PCM) of the worksite. 4 (Tr. 74:5-15). As 

the PCM, Torres had primary management responsibility for the worksite. Torres’s duties included 

safety, operations, and sales. (Tr. 746:11-25). In addition to Torres and [Redacted], Sunbelt HVAC 

Technicians, Lloyd Gilmore, and Antone Medley were present at the worksite on the date of the 

accident. (Tr. 74:2-5, 352:1-4). 

While the garage door remained open, [Redacted], Gilmore, and Medley proceeded to 

unload a vehicle pursuant to their normal job duties until Torres called the team together for their 

daily huddle. (Tr. 74:16-19). At that meeting, Torres was informed that the garage door was 

jammed, and that the landlord had already been contacted and that a third-party vendor was 

expected to arrive within the hour to repair the garage door. (Tr. 74:22-25). Nonetheless, Torres 

instructed [Redacted], Gilmore, and Medley to obtain a ladder for one of the employees to get the 

garage door down. (Tr. 75:9-13). Gilmore and Medley set up a 10-foot ladder and Torres instructed 

4 Each location was called a Profit Center (PC) designated by a number. The workplace at issue here was 

PC-228, which was managed by Torres. 

3 
 

 

 

 

 

[Redacted] to climb the ladder to get the garage door down. (Tr. 75:9-13, 78:1-2, 97:3). [Redacted] 

attempted to exercise his stop-work authority by suggesting a “time-out,” because he felt that the 

work was unsafe. (Tr. 75:17-19, 142:1-5, 149:21-25). However, Torres threatened [Redacted] with 

a write up or termination for insubordination if [Redacted] refused to climb the ladder and attempt 

to get the garage door down. (Tr. 75:14-16, 77:19-22). Torres handed [Redacted] a 3-foot piece of 

metal rebar to pry the door free. (Tr. 77:23-25, 94:6-9). 

[Redacted] proceeded as instructed by Torres and climbed the 10-foot ladder. (Tr. 77:23-

25, 96:8-11, 96:25-97:3). The ladder was positioned such that it stood perpendicular to the garage 

door with a part of it outside the threshold of the garage while the other half was inside the garage. 

(Tr. 86:20-25, 87:4-17; Ex. C-82). [Redacted] climbed the ladder, facing the inside of the building 

and, while on the ladder, he was partially outside the building. (Tr. 87:11-16, 97:12-16, 137:11-

16). [Redacted] turned his upper torso and head to face the garage door and the outside of the 

building once he was up on the ladder. (Tr. 143:23 – 144:19, 340:2 – 15). [Redacted] used the 

metal rebar as leverage to unwedge the garage door. (Tr. 97:20-21). [Redacted] knew that the 

garage door would move once he successfully unwedged the garage door; he just was not sure 

exactly how far the door would travel. (Tr. 142:24-143:3). At the time that the garage door moved 

downward, Medley was on one side of the ladder holding the ladder steady. (Tr. 30:10-11, 96:19-

22). 

None of the employees present at the scene locked out the gravitational or electrical energy 

to the garage door. Nor was any employee wearing a hard hat. When [Redacted] successfully 

unjammed the door, it came down and hit his upper back causing him to fall backwards off the 

ladder towards the outside of the building. (Tr. 97:22-25, 138:11-22). [Redacted] landed on his left 

side, resulting in serious injuries, including a broken pelvis. (Tr. 98:2-4, 20, 99:18-100:13, 139:3-

6). 

III. ANALYSIS 

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

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

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

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

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

this purpose, the Act imposes two duties on an employer: a “general duty” to provide to “each of 

4 
 

 

 

 

 

 

 

 

 

 

his employees employment and a place of employment which are free from recognized hazards 

that are causing or are likely to cause death or serious physical harm to his employees,” 29 U.S.C. 

§ 654(a)(1); and a specific duty to comply with all applicable occupational safety and health 

standards promulgated under the Act. Id. § 654(a)(2). Pursuant to that authority, the standards at 

issue in this case were promulgated.5 

The “Commission is responsible for carrying out adjudicatory functions” under the Act. 

CF&I, 499 U.S. at 144. Thus, “[t]he Commission’s function is to act as a neutral arbiter and 

determine whether the Secretary's citations should be enforced over employee or union 

objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam). 

Therefore, Congress vested the Commission with the “adjudicatory powers typically exercised by 

a court in the agency-review context.” CF&I, 499 U.S. at 151. 

To establish a violation of the Act in the Sixth Circuit where this case arose, 6 “the Secretary 

must show by a preponderance of the evidence that (1) the cited standard applies to the facts, (2) 

the requirements of the standard were not met, (3) employees had access to the hazardous 

condition, and (4) the employer knew or could have known of the hazardous condition with the 

exercise of reasonable diligence.” Aerospace Testing All. v. Occupational Safety & Health Review 

Comm'n, 371 F. App'x 568, 571 (6th Cir. 2010) (unpublished) (citation omitted). 

Alleged Violations 

The Secretary alleges in Item 1 Sunbelt violated § 1910.135(a)(1) by failing to ensure “each 

affected employee wear a protective helmet when working in areas where there is a potential for 

injury to the head from falling object[.]” (Compl. Ex. A). More specifically, the Secretary alleges 

“during the repair, maintenance, and or trouble shooting of a 14-foot overhead garage door,” 

Sunbelt “did not ensure employees working directly under the employee on the 10-foot fiberglass 

5 As indicated supra, the Secretary delegated his authority under the Act to the Assistant Secretary of Labor 

for Occupational Safety and Health and the Assistant Secretary promulgated the Occupational Safety and 

Health Standards at issue. 6 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the 

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

employer also may appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). The 

Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, 

the Commission generally has applied the precedent of that circuit in deciding the case— even though it 

may differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 

96-1719, 2000). Here, the alleged violations occurred in Ohio, which is in the Sixth Circuit and Sunbelt’s 

principal place of business is in South Carolina, which is in the Fourth Circuit. The court applies the 

precedent of the Sixth Circuit in deciding the case where it is highly probable that the case will be appealed. 

5 
 

 

 

 

 

 

 

ladder were protected from possible danger of head injury from impact, or from falling or flying 

objects, falling debris from working surfaces of heights approximately 14 feet.” (Ibid.) The cited 

standard is a general PPE standard respecting head protection, and mandates that “[t]he employer 

shall ensure that each affected employee wears a protective helmet when working in areas where 

there is a potential for injury to the head from falling objects.” 29 C.F.R. § 1910.135(a)(1). 

The Secretary alleges in Item 2 Sunbelt violated § 1910.147(c)(4)(i) of the LOTO standard 

by failing to ensure procedures were “developed, documented and utilized for the control of 

potentially hazardous energy when employees were engaged in activities covered by this 

section[.]” (Compl. Ex. A.) More specifically, the Secretary alleges Sunbelt “did not ensure 

energy control procedures were utilized when an employee performed service and or repair 

operations (trouble shooting) on a 14 foot overhead mechanical garage door.” (Ibid.) The cited 

provision of the standard mandates that “[p]rocedures shall be developed, documented and utilized 

for the control of potentially hazardous energy when employees are engaged in the activities 

covered by this section.” 29 CFR § 1910.147(c)(4)(i). 

The Secretary alleges in Item 3 Sunbelt violated § 1910.147(c)(7)(i)(A) of the LOTO 

standard by failing to ensure authorized employee(s) “receive[d] 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 isolat[ion.]” (Compl. Ex. A). More 

specifically, the Secretary alleges Sunbelt “did not ensure a HVAC Technician who performed 

service/trouble shooting of a 14-foot mechanical garage door, including, but not limited to freeing 

the garage door from a closing catch point via prying it free with a piece of rebar, was trained in 

the methods and means necessary for energy isolation and control of the mechanical garage door.” 

(Ibid.) The cited provision of the LOTO standard mandates that “[e]ach 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.” 29 CFR § 1910.147(c)(7)(i)(A). 

(1) Whether the Cited Standards Apply to the Facts 

“Protective equipment . . . shall be provided, used, and maintained . . . wherever it is 

necessary by reason of hazards of processes or environment . . . encountered in a manner capable 

of causing injury or impairment in the function of any part of the body through ... physical 

contact.” 29 CFR § 1910.132(a). And as indicated supra, § 1910.135 applies when affected 

6 
 

 

 

employee are “working in areas where there is a potential for injury to the head from falling 

objects.” 29 C.F.R. § 1910.135(a)(1). It is undisputed that Medley stood below [Redacted] and 

held the ladder steady while [Redacted] was standing above him on the ladder attempting to pry 

the door free from the overhead beam using a 3-foot piece of metal rebar. The court concludes 

there was a potential for injury to Medley’s head from the rebar if it was dropped from above and 

from the garage door if it fell. Therefore, the Secretary has established § 1910.135 applies to the 

facts in Item 1. 

As to Items 2 and 3, the LOTO standard “covers the servicing and maintenance of machines 

and equipment in which the unexpected energization or start up of the machines or equipment, or 

release of stored energy, could harm employees.” 29 C.F.R. §1910.147(a)(1)(i). Although the Act 

does not define “machine” or “equipment,” Sunbelt does not dispute or address this issue in its pre 

or post trial briefs. The Secretary asserts the “overhead garage door such as the one at issue in this 

case falls into either category.” (Sec’y’s Br. 32.). The court agrees with the Secretary. 

Merriam-Webster defines a “machine” as including: “(a): a mechanically, electrically, or 

electronically operated device for performing a task . . . (b)(1): an assemblage . . . of parts that 

transmit forces, motion, and energy one to another in a predetermined manner. ...” MerriamWebster, https://www.merriam-webster.com/dictionary/machine (last visited July 10, 2023). The 

Secretary argues, and the court agrees, “[t]he overhead garage door at issue here was a 

mechanically and electrically operated device for performing the task of allowing Sunbelt 

employees and equipment to enter and exit the facility.” (Sec’y’s Br. 33). The garage door was 

also an assemblage of parts, “in that it was comprised of the door, the tracks the door rode in, the 

electronic motor connected to the door, the electronic controls, and the manual pull chain.” (Id.) 

Merriam-Webster defines “equipment,” among other things, as “the set of articles or 

physical resources serving to equip a person or thing: such as (1): the implements used in an 

operation or activity: apparatus. ...” Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/equipment (last visited July 10, 2023). Merriam-Webster further defines 

“implement” to mean “a device used in the performance of a task.” Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/implement (last visited July 10, 2023). The 

Secretary argues, and the court agrees, the overhead garage door at issue here is also “equipment” 

because “it is an implement, or device, used in an operation or activity, i.e., it is used to allow entry 

into and exit out of Sunbelt’s facility.” (Sec’y’s Br. 33). Further, under the LOTO standard, service 

7 
 

 

 

 

 

 

and/or maintenance includes activities such as the “unjamming of machines or equipment . . . 

where the employee may be exposed to the unexpected energization or start up of the equipment 

or release of hazardous energy. 29 C.F.R. § 1910.147(b) (emphasis added). “Indeed, in 

promulgating the final rule, OSHA not only repeatedly cites ‘unjamming’ work as one of the 

activities covered by the standard, see 54 Fed.Reg. at 36,646, 36,647, 36,648, 36,652, 36,661 & 

36,688, but in fact lists ‘unjamming object(s) from equipment’ as statistically the most common 

source of the workplace injuries that the standard seeks to prevent, see id. at Tables III & XII.” 

Otis Elevator Co. v. Sec'y of Labor, 762 F.3d 116, 123 (D.C. Cir. 2014). The court concludes the 

garage door is a machine or equipment within the meaning of the LOTO standard. 

Nonetheless, the Sixth Circuit has held that “[b]y its terms, the lockout standard’s scope 

provision limits the applicability of the regulation to machines that could cause injury if they were 

to start up unexpectedly.” Reich v. Gen. Motors Corp., 89 F.3d 313, 315 (6th Cir. 1996). In Reich, 

the Sixth Circuit held “the plain language of the lockout standard unambiguously renders the rule 

inapplicable where an employee is alerted or warned that the machine being serviced is about to 

activate.” Id. at 315. Here, Sunbelt argues the “whole purpose and object of [Redacted]’s actions 

was to get the garage door to move past the obstruction on the header beam – and that’s exactly 

what happened[,]” and therefore, “the energization of the garage door was not “unexpected” as 

contemplated by the standard.” (Resp’t’s Br. 27-28). The court does not agree with Sunbelt. 

In Reich, the machines under repair were specifically designed not to start up until an eight 

to twelve step process was completed, and “audible or visual signals . . . alerted servicing 

employees that the machines were about to start up.” Reich, 89 F.3d at 314–315. “Here, by contrast, 

the only notice [[Redacted]] had that the [garage door] would start moving was the movement 

itself.” Otis, 762 F.3d at 122. Thus, as the Secretary argues, and the court agrees, “the LOTO 

standard still applies because the employees did not know when exactly the energy would be 

released.” (Sec’y’s Br. 30) (emphasis in original). The court concludes “what is critical to the 

standard's application in this case is that [[Redacted]] did not know when that moment would 

arrive.” Otis, at 122. (emphasis in original). Thus, the court concludes the movement of the door 

was “unexpected” within the meaning of the LOTO Standard, and therefore, the Secretary has 

established the cited provisions apply to the facts in Items 2 and 3. 

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(2) Whether the Requirements of the Standards Were Met 

As to Item 1, there is no dispute that Sunbelt was aware of the requirements of the standard. 

Sunbelt’s Safety Manual included a PPE policy that explicitly states, “All employees are required 

to wear an approved hard hat...whenever there is an identified and significant risk of head injury 

to employees which could be eliminated or reduced by use of a hard hat.” (Ex. R-15, p. 2). There 

is also no dispute that Sunbelt failed to comply with those requirements as it relates to this case. 

Medley was not wearing a protective helmet while he stood below [Redacted] and held the ladder 

while [Redacted] used a metal rebar to pry the door free. Therefore, the court concludes the 

Secretary has established the requirements of the cited standard were not met in Item 1. 

As to Item 2, there is no dispute Sunbelt did not ensure energy control procedures were 

utilized when [Redacted] performed service and or repair operations on the overhead mechanical 

garage door. The court concludes the Secretary has established the requirements of the cited 

standard were not met in Item 2. As to Item 3, there is no dispute Sunbelt did not ensure [Redacted] 

was trained in the methods and means necessary for energy isolation and control of the mechanical 

garage door. The court concludes the Secretary has established the requirements of the cited 

standard were not met in Item 3. 

(3) Whether Employees had Access to the Hazardous Conditions 

As to Item 1, Sunbelt argues “the Secretary has failed to prove either actual exposure or 

that exposure to potential for head injury from falling objects was reasonably predictable.” 

(Resp’t’s Br. 20). The court does not agree. The record evidence clearly demonstrates that Medley 

lacked a hard hat when standing below [Redacted] while [Redacted] used a metal rebar to pry the 

garage door free. Therefore, Medley was exposed to the danger of a head injury. 

As to Items 2 and 3, [Redacted] was knocked off the ladder and received significant injuries 

resulting from the start-up or release of stored energy from the garage door. And “the Secretary 

need not show that exposure was ‘reasonably predictable’ where there is actual exposure.” George 

J. Igel & Co. v. Occupational Safety & Health Rev. Comm'n, 50 F. App'x 707, 713 (6th Cir. 2002) 

(unpublished). The court concludes the Secretary has established exposure to the hazardous 

conditions cited in Items 1, 2, and 3. 

(4) Knowledge 

“The fourth and final condition for a prima facie violation of the Act requires that the 

employer knew of the hazardous condition or could have known through the exercise of reasonable 

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diligence.” Mountain States Contractors, LLC v. Perez, 825 F.3d 274, 283 (6th Cir. 2016). The 

Fourth, Sixth, and D.C. Circuits have all held the Secretary may prove knowledge by imputing a 

supervisor’s actual or constructive knowledge of the violations. See, e.g., New River Elec. Corp. 

v. Occupational Safety & Health Review Comm’n, 25 F.4th 213, 220 (4th Cir. 2022); Mountain 

States, 825 F.3d at 283; Wayne J. Griffin Elec., Inc. v. Sec’y of Lab., 928 F.3d 105, 109 (D.C. Cir. 

2019). 

As the Secretary notes, and the court agrees, “Torres, the branch manager of PC 228, had 

actual knowledge of the violations as he ‘was right there,’ ‘looking up at [[Redacted]].’” (Sec’y’s 

Br. 14) (citing Tr. 45:21-46:1; see also Tr. 96:12-18; 245:9-12). Torres was present and witnessed 

the hard hat and LOTO violations firsthand. Torres also ordered [Redacted] to climb the ladder 

and dislodge the garage door. (Tr. 28:22-25; Tr. 75:1-19; Tr. 77:15-22; Tr. 244:8-22.). Torres 

handed [Redacted] the rebar used to dislodge the door. (Tr. 30:12-16; Tr. 94:6-9; Tr. 248:15-19). 

Torres stood by and watched [Redacted] performed maintenance on the door without locking out 

the three sources of hazardous energy. (Tr. 96:15-18). Torres allowed Medley, who had no head 

protection, to stand at the base of a 10-foot ladder while [Redacted] fought to unjam a 13-foothigh garage door that had not been locked out with a 3-foot piece of metal rebar. (Tr. 30:10-12; 

Tr. 139:7-11; Tr. 244:23-245:2). Torres’s supervisory knowledge of the hazardous conditions is 

imputed to Sunbelt. 

Classification 

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

physical harm could result from a condition which exists . . . unless the employer did not, and 

could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 

U.S.C. § 666(k). Here, the cited violations were properly classified as serious since it is 

substantially probable that being struck in the head by the metal rebar or by a garage door or being 

knocked off a ladder from the start-up or release of stored energy could result in death or permanent 

disability. 

Unpreventable Employee Misconduct Defense 

As the Sixth Circuit has stated, “[t]o establish employee misconduct as an affirmative 

defense, an employer must carry its burden of showing that due to the existence of a thorough and 

adequate safety program that is communicated and enforced as written, the conduct of its 

employee(s) in violating that policy was idiosyncratic and unforeseeable.” George J. Igel, 50 F. 

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App'x at 714 (citation and internal quotations marks omitted) (emphasis in original). “Highly 

relevant in evaluating claims of unpreventable employee misconduct is the performance of 

supervisors and foremen.” Complete Gen. Constr. Co. v. Occupational Safety & Health Rev. 

Comm'n, 2005 Fed. App. 0225N, at *2 (6th Cir. Mar. 29, 2005) (unpublished). “As this court has 

stated on more than one occasion, ‘negligent behavior by a supervisor or foreman[,] which results 

in dangerous risks to employees under his or her supervision, ... raises an inference of lax 

enforcement and/or communication of the employer's safety policy.’” Ibid. (citations omitted). 

Here, Sunbelt’s supervisor, Torres, directed subordinate [Redacted] to engage in the 

misconduct. Torres also allowed subordinate Medley to stand at the base of the ladder and hold it 

for [Redacted] without head protection. Therefore, Sunbelt is not entitled to rely on the 

unpreventable employee misconduct defense since its own supervisor observed and directed the 

violative activity, which indicates a lax enforcement and/or communication of Sunbelt’s safety 

policy. See Sec’y of Lab. v. 4 State Trucks, 22 BNA OSHC 1929, 1936 (No. 08-1125, 2009) (“A 

supervisor’s failure to comply with a work rule, plus the employees’ willingness to break the work 

rule in the supervisor’s presence, indicate lax enforcement or communication of the work rule.”). 

“This is the antithesis of ‘unpreventable’ misconduct.” United Contractors Midwest, Inc., 26 BNA 

OSHC 1049, 1056 (No. 10-2096, 2016) (view of Chairman Attwood)l see also Stark Excavating, 

Inc., 24 BNA OSHC 2218, 2221-22 (No. 09-0004, 2014) (consolidated) (rejecting unpreventable 

employee misconduct defense, finding non-compliance by supervisors/competent persons 

responsible for worksite condition is “strong evidence” of lax enforcement), aff'd on other 

grounds, 811 F.3d 922 (7th Cir. 2016); CBI Servs., Inc., 19 BNA OSHC 1591, 1603 (No. 95-0489, 

2001), aff'd per curiam, 53 F. App'x 122 (D.C. Cir. 2002) (unpublished) (same); Manganas 

Painting Co., 21 BNA OSHC 1964, 1998 (No. 94-0588, 2007) (rejecting unpreventable employee 

misconduct defense, finding lack of reasonable diligence to discover or enforce work rule 

violations when noncompliant condition is in plain view of foreman and company owner). This is 

true because “it is the supervisor's duty to protect the safety of employees under his supervision.” 

Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991), aff'd, 978 

F.2d 744 (D.C. Cir. 1992) (unpublished). 

The Commission has also held that when a work rule is not broad enough to eliminate 

employee exposure, and where strict compliance with the rule would not have fully protected the 

employees, the employer cannot make out their employee misconduct defense. See Sec’y of Labor 

11 
 

 

 

 

v. Mosser Constr. Co., 15 BNA OSHC 1408, 1417 (No. 89-1027, 1991). Here, Sunbelt’s PPE 

policy only requires its employees “to wear an approved hard hat . . . whenever there is an 

identified and significant risk of head injury to employees which could be eliminated or reduced 

by use of a hard hat.” (Ex. R-15, p. 2) (emphasis added). As the Secretary argues, and the court 

agrees, Sunbelt cannot make out an employee misconduct defense related to Item 1 since its hard 

hat work rule is too narrow and its employees could comply with its work rule and still violate § 

1910.135(a)(1). 

Finally, the LOTO standard mandates that in developing and documenting an energy 

control procedure, the employer must “clearly and specifically outline the scope, purpose, 

authorization, rules, and techniques to be utilized for the control of hazardous energy, and the 

means to enforce compliance.” 29 C.F.R. § 1910.147(c)(4)(ii) (emphasis added). As the Secretary 

argues, and the court agrees, Sunbelt’s LOTO procedure is a general policy that fails to offer any 

guidance regarding LOTO procedures specific to the garage door. (See Ex. R-16). Therefore, 

Sunbelt has also failed to satisfy the “adequate safety program” element as to Items 2 and 3. Thus, 

the court rejects Sunbelt’s unpreventable employee misconduct defense. 

IV. PENALTY 

Under the Act, the Secretary has the authority to propose a penalty. See 29 U.S.C. §§ 

659(a). However, Congress vested the Court with the final “authority to assess all civil penalties 

provided in [the Act],” which it determines de novo. 29 U.S.C. § 666(j); see also Valdak Corp., 17 

BNA OSHC 1135 (No. 93-0239, 1995). In determining an appropriate penalty, the Court is 

required to give “due consideration to the appropriateness of the penalty with respect to 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). These factors are not 

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

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

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

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

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

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

The Secretary proposed a penalty of $11,566 respectively for each of the three items in 

Citation 1. The Secretary determined the gravity of the violations was moderate, assessing the 

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severity as “medium” due to the potential injury that could have occurred and assessing the 

probability as “greater” due to the number of employees in the immediate area and the work being 

done. The court agrees with the Secretary’s determination. The Secretary did not propose a size 

reduction since Sunbelt “was a very large company with a vast number of employees.” (Tr. 267:21-

22). The court also agrees with this determination. The Secretary also did not propose a reduction 

based upon good faith since, during the investigation, documents were requested, and the company 

refused to provide them. The court agrees with the Secretary’s determination. However, the 

Secretary did not propose an increase or reduction in the penalty related to Sunbelt’s history 

because an injury was involved, even though Sunbelt had a compliant inspection within the last 

five years. The court does not agree with that determination and concludes a 10% reduction for 

history is appropriate. Thus, considering Sunbelt’s size, the gravity of the violations, the lack of 

good faith, and its history, the court concludes the appropriate penalty for each item is $10,409. 

Accordingly, 

V. ORDER 

IT IS HEREBY ORDERED THAT Citation 1, Items 1, 2, and 3 are AFFIRMED and the court 

assesses a penalty of $10,409 respectively for each item. 

SO ORDERED. 

/s/ 

JOHN B. GATTO, Judge 

Dated: July 24, 2023 

Atlanta, GA 

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