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. 19-0868 

CHEWY, INC., 

Respondent. 

Appearances: Elena S. Goldstein, Deputy Solicitor of Labor 

Tremelle I. Howard, Regional Solicitor 

Karen E. Mock, Counsel 

Lydia J. Chastain, Senior Trial Attorney 

U.S. Department of Labor, Atlanta, Georgia 

For the Complainant 

Darren S. Harrington, Esq. 

F. Colin Durham, Jr., Esq. 

Kane Russell Coleman Logan PC, Dallas, Texas 

For the Respondent 

Before: Carol A. Baumerich, Administrative Law Judge 

DECISION AND ORDER 

Chewy, Inc., an online pet supply company, operates many warehouses. This case 

concerns Chewy’s warehouse in Ocala, Florida, where one of Chewy’s workers was pinned, 

crushed, and killed when the forklift he was operating passed beneath a horizontal beam of a 

storage rack in the Ocala warehouse. 

The Occupational Safety and Health Administration (OSHA) investigated the incident at 

the Ocala warehouse and issued to Chewy a Citation and Notification of Penalty (Citation) on May 

9, 2019. The Citation alleged two violations of the Occupational Safety and Health Act of 1970, 
 

 

 

 

 

29 U.S.C. §§ 651-678 (the Act), one of which is adjudicated within this Decision.

1 This Citation 

Item alleges a serious violation of section 5(a)(1) of the Act. Commonly known as the “general 

duty clause,” section 5(a)(1) requires that each employer “furnish to each of his employees 

employment and a place of employment which are free from recognized hazards that are causing 

or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). 

For this Citation Item, the Secretary alleges that the conditions at Chewy’s Ocala 

warehouse presented an “under-ride” hazard to Chewy’s workers and proposes a $13,260 penalty. 

(First Am. Compl. 3.)2 Below is a picture that truly and accurately depicts the condition inside 

Chewy’s Ocala warehouse shortly after the incident that initiated the OSHA inspection in this case. 

The photo shows the lift truck frame, where the operator had been standing, under the rack system 

horizontal beam, and a pallet of boxes on the lift forks. (Tr. 51-52; Ex. C-12.) 

(Ex. CX-12.) 

1 On March 25, 2020, the Secretary withdrew Citation 2, Item 1, which alleged an other-than-serious 

violation of 29 C.F.R. § 1910.176(e). (Complainant’s Notice of Vacation and Withdrawal of Citation 2, 

Item 1). 

2 The Secretary amended the original Citation on July 1, 2019, “to more accurately describe the hazard 

and to more closely reflect the recommendations described in OSHA’s Safety and Health Information 

Bulletin 07-27-2009, entitled Standup Forklift Under-ride Hazards.” (First Am. Compl. 2-3 ¶ VI.) 

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Respondent filed a timely notice of contest, bringing this matter before the Occupational 

Safety and Health Review Commission (Commission).3 A virtual hearing via WebEx technology 

was held on January 5-7, 2021. Both parties filed post-hearing briefs. 

The key issues in dispute are the following: (1) Did Chewy affirmatively establish that 

more specific industry standards preempt the application of the general duty clause to the underride hazard in this case? (2) Did the Secretary establish that an under-ride hazard, as defined by 

the Secretary, existed at the Ocala warehouse? (3) Did the Secretary establish that Chewy and/or 

its industry recognized the under-ride hazard? (4) Did the Secretary meet his prima facie burden 

of establishing feasible means to abate the under-ride hazard at the Ocala warehouse? (5) Did 

Chewy overcome the Secretary’s prima facie showing that feasible means of abatement existed to 

address the under-ride hazard at the Ocala warehouse? (6) Did Chewy know or with the exercise 

of reasonable diligence could Chewy have known of the under-ride hazard at the Ocala warehouse? 

For the reasons discussed below, Citation 1, Item 1, as amended, is AFFIRMED and the 

proposed penalty of $13,260 is ASSESSED. 

JURISDICTION AND COVERAGE 

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by 

an employer if the employer is engaged in a business affecting commerce within the meaning of 

section 3(5) of the OSH Act, and, if the employer timely contests the citation. 29 U.S.C. §§ 652(5), 

659(c). The record establishes that Chewy, as of the date of the alleged violation, was an employer 

engaged in a business affecting commerce within the meaning of section 3(5) of the OSH Act. 29 

U.S.C. § 652(5); First Amended Complaint & First Amended Answer, ¶¶ II, III. (Tr. 17-18). 

Chewy also timely filed a notice of contest to the Citation in this case. The undersigned concludes 

that Chewy is covered under the Act and that the Commission has jurisdiction over this matter. 

BACKGROUND 

Chewy Warehouse Worksite 

3 The Commission is an independent adjudicatory agency and is not part of the Department of Labor or 

OSHA. 29 U.S.C. § 661. It was established to resolve disputes arising out of enforcement actions brought 

by the Secretary of Labor under the OSH Act and has no regulatory functions. 29 U.S.C. § 659(c). 

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Chewy, an online pet supply store that employs about 12,000 workers, operates “fulfillment 

centers,” otherwise known as warehouses, nationwide. (Tr. 167, 484; Sec’y Br. 2, Resp’t Br. 8; 

Ex. C-15, at 2 (Chewy’s mission is “[t]o be the most trusted and convenient online destination for 

pet parents everywhere.”). Chewy’s warehouses typically range in size from 600,000 to 800,000 

square feet. (Tr. 590; Ex. C-9). Around the time of the incidents in this case, Chewy had seven 

warehouses.4 (Tr. 167). 

Launched in 2017, Chewy’s Ocala, Florida warehouse,5 like its sister warehouses, is 

divided between an “inventory” section and a “non-inventory” section. (Tr. 45, 174, 486). The 

inventory section stores customer related products like dog food and cat litter. (Tr. 540-541, 604-

605). The incident, however, that precipitated the OSHA inspection in this case occurred in Aisle 7 

of the non-inventory section of the Ocala warehouse. (Tr. 44). The non-inventory section of the 

Ocala warehouse stores products that are used for the employer’s daily activities, not customerrelated product. (Tr. 45). In this case, these products are pallets of “box stock, different boxes,” 

also known as “corrugate.”6 (Tr. 211, 704). The pallets are stored in six levels of “bays”7 within 

the pre-designed racking system. (Tr. 606-607; Ex. C-5). No pallets were stored at the floor level 

of the racking system, of non-inventory Aisle 7 or Aisle 8, at the time and in the location where 

the incident occurred. (Tr. 50, 54; Exs. C-5, C-8, C-13). 

In the non-inventory section of the Ocala warehouse, Chewy workers utilize the powered 

industrial truck (PIT) Raymond Brand 750-R45TT Electric Standup Forklifts (Raymond forklift)

8 

to pull and retrieve pallets of corrugate from the bays of the pre-designed racking system.9 (Tr 42, 

4 At the time of the hearing, Chewy had additional warehouse facilities. (Tr. 203, 591). 

5 Throughout the record, Chewy’s Ocala, Florida warehouse also is referred to as the Chewy MCO facility, 

named after the nearest International Airport (Orlando International Airport or MCO). (Tr. 236-237, 480). 

6 Corrugate is “just the cardboard boxes that customer shipments are packaged in to be delivered.” (Tr. 

704). 

7 A “bay” is “the space in between two of the gray vertical upright[]” posts when looking at the profile of a 

racking system. The “profile of the rack” is determined by how the horizontal racks or beams are situated 

on the vertical posts. (Tr. 605-607; Ex. C-5). 

8 In the record and this decision, this Raymond forklift is referred to as the forklift, reach truck, lift truck, 

standup forklift, and dock stance forklift. (Tr. 42-46, 52-58, 89-90; Exs. J-5, C-2, C-5). 

9 In contrast, the job task in the inventory section of the warehouse is part of the “fulfilment portion of the 

operation,” where Chewy workers, “on foot,” “pick” individual units (such as dog food or cat litter) off 

pallets, place the item in a box, and then ship it to the customer. (Tr. 174, 478, 530, 540-541, 604-605). 

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44-45; Exs. J-5, C-5). This job task was characterized as “a very familiar task,” and “this is a task 

that we [Chewy employees] had performed upwards of 30,000 times per day[]” and “well over 20 

million” times in the company’s history prior to the fatal incident. (Tr. 636-637, 640, 650-651). 

The job task may be described as follows: When retrieving the pallet of corrugate from a 

bay within the pre-designed racking system, the Chewy operator drove the Raymond lift truck to 

the desired pallet’s location and stopped at a 90-degree perpendicular angle in front of that location. 

(Tr. 62, 228). The operator, using the forklift’s electronic controls, positioned/raised up the forklift 

blades to the pallet and then inserted the blades of the forklift into the pallet. (Tr. 62-63, 228-229). 

Then, the forklift operator pulled the pallet from the bay and into the aisle for travel to the 

pallet’s desired destination. The aisles in the non-inventory section of the warehouse were 127 

inches wide, from rack system to rack system on either side.10 (Tr. 62, 152, 234-235, 482, Ex. C3, at 2). The length of the Raymond forklift was 102 inches, from the rear of the operator’s 

compartment to the tip of the forks that lift product. (Tr. 62, 152, Ex. C-3, at 1). Given the width 

of the aisle, between the racking system bays on either side, in the non-inventory section of the 

Ocala warehouse, as well as the overall length of the Raymond forklift, the Chewy forklift operator 

had 25 inches of space, at most, to pull the pallet from the bay and into the aisle for travel before 

the rear of the forklift breached the vertical plane of the racking system on the opposite side (to 

the rear of the forklift) of the aisle. (Tr. 62-63, 228-229, 396-403; Ex. C-3, at 2). Within this aisle 

space, the Chewy operator pulled the pallet of corrugate into the aisle by reversing the forklift and 

then rotating the forklift toward the desired direction of travel. 

Regarding the width of the non-inventory aisles and the available space for the forklift 

operator to maneuver within the aisle, pallet length and “load length” were also important 

considerations.11 (Tr. 345, 396-403). The load length considers the “overhang” of the stored 

10 Chewy’s Senior Director of Fulfillment Optimization Cory Billet testified that Chewy has “a minimum 

aisle width that we feel comfortable allowing our operators to operate within. And that’s a 127 inches.” 

(Tr. 482. See Tr. 504-505). 

11 This maneuvering was termed “right angle stacking,” by the Secretary’s expert witness Guy Snowdy, 

who described “right angle stacking” as the turning radius of the vehicle [the dock stance lift truck], plus 

the load length, called the front overhang. (Tr. 345, 396-397). Mr. Snowdy testified that when the forklift 

operator is performing “right angle stacking,” the “turning radius, plus front overhead,” the pallet size on 

the lift forks, must be considered, regarding necessary aisle width. When the operator is carrying extremely 

long loads . . . “you’re requiring that operator to come relatively close to the adjacent racking system in the 

aisle.” (Tr. 345, 388, 396-403). 

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material, which measured “front-back” (i.e., from the face of the rack and going into the rack), on 

the pallet. (Tr. 608-609.) Chewy had a rule that merchandise not hang over, above, or beyond the 

horizontal crossbeam of the racking more than two inches. (Tr. 229, 608-09). Chewy’s Director 

of Safety and Loss Prevention at the time of the OSHA inspection, Craig Gage, testified that in the 

non-inventory sections of Chewy’s warehouses, storage material on the pallets often hung over the 

crossbeams more than two inches, on both front and back ends of the pallet.

12 (Tr. 211, 229). 

Considering the size of the pallets and stored material on the pallets, Safety Director Gage 

described the non-inventory aisles as “tight.”13 (Tr. 211, 228). 

12 Craig Gage was a credible witness. The undersigned observed him candidly testify without hesitation. 

Mr. Gage answered each question presented, without reframing or redefining the question before 

answering. Mr. Gage was Chewy’s Safety Manager at the time of the under-ride incidents directly relevant 

to this case. Following the under-ride incidents, Mr. Gage was involved in the initial under-ride abatement 

decisions made and implemented. Mr. Gage’s direct, detailed, testimony regarding the operation of the 

dock stance lift trucks in Chewy’s non-inventory warehouse aisles, including the violation of Chewy’s twoinch rule regarding pallet overhang, is credited. (Tr. 228-229). 

In reaching this finding, the general testimony of Mr. Prater, Mr. Billet, and Mr. Rose was 

considered. At the time of the December 2018 fatal under-ride incident, Mr. Prater had been employed by 

Chewy for approximately two- and one-half months. (Tr. 680). Mr. Prater’s general testimony that Chewy 

does not permit or allow overhang that exceeds two inches in Chewy’s non-inventory area is not detailed 

or specific as to the time frame, whether during Mr. Prater’s tenure as Regional Safety Manager or later 

when he became Chewy’s Safety Director. This testimony is given little weight. (Tr. 720-721). 

At the time of the 2018 under-ride incidents relevant to this case, Mr. Billet was Director of 

Chewy’s Capacity Organization. (Tr. 517-519). Mr. Billet testified that he is “not aware” of storage 

material on pallets “overhanging more than two inches . . . front-to-back [on the pallet], so that it’s intruding 

into the aisle.” (Tr. 608-609). Mr. Billet’s general statement that he lacked “awareness” is unhelpful and 

accorded little weight. This general statement is not specific as to the time frame referenced. Importantly, 

the record does not show that Mr. Billet had direct knowledge regarding the day-to-day work operations 

and practices in the Ocala warehouse, or in any Chewy warehouse, at the time of the 2018 under-ride 

incidents. (Tr. 472-541, 557-609). 

Warehouse Safety Manager Rose did not specifically address pallet overhang or Chewy’s two-inch 

rule. Mr. Rose testified that they performed “pallet audits,” to make sure “if there was anything that could 

potentially fall out or fall over that we caught that beforehand.” He testified if the pallet fell over, there 

could be “a crushing hazard . . . product damage . . . structural damage to the floor.” (Tr. 239, 264). 

13 Safety Director Gage clarified what he meant when he described the aisles as “tight.” 

[F]or a reach truck driver to retrieve merchandise, he has to square up to the rack. In other 

words, he’s perpendicular to the rack. And he has to be far enough away from the rack so 

that he can raise his forks up to whatever pallet he’s going to pull out of there. Now he can 

then pull forward and he can also use the reach function on the fork to push those forward 

and pull that pallet out. But then when he brings it back in, . . . he has to take into account 

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In the non-inventory section of the Ocala warehouse, at the time of the incident, the Chewy 

forklift operators drove a “dock stance” Raymond forklift, also known as a “standup forklift,” in 

which the operator stood while driving the forklift. (Tr. 92, 159, 266-267, 355; Exs. J-5, p. 8, C2). While in a dock stance forklift, the Chewy operator can stand sideways with respect to the 

forklift, which allows the operator to look in the direction of travel with relative ease (by pivoting 

the operator’s head 180 degrees). (Tr. 266, 355, 428-429, 672). 

The height and length of the dock stance forklift used by Chewy employee Mr. RP14 , 

whose under-ride incident precipitated this case, was measured by the OSHA Compliance Officer 

during the inspection. (Tr. 57-58, 61-62). The rear height of the Raymond dock stance forklift 

measured 51 inches from the floor to the tip of the lift truck compartment. (Tr. 61-62; Ex. C-3, at 

1). The front height of the Raymond dock stance forklift measured 52 inches from the floor to the 

top of the lift truck compartment. Id. The height of the racking system lowest horizontal beam 

was 53 and 7/8 inches from the floor to the bottom of the horizontal rack beam. (Tr. 54, 61; Ex. 

C-3, at 1, C-13). Notably, at the time of the incident, the Chewy dock stance forklifts were not 

equipped with posts or guards around the operator’s cabin – the operator’s cabin was exposed 

entirely to the rear of the forklift.15 (Tr. 46, 52, 56, 342, 354; Exs. J-5, at 816, C-6, C-12, C-14). 

the length of the truck, the length of the forks and plus the length of whatever the pallet is 

that he has on the forks. And in non-inventory those pallets oftentimes were larger, they 

hung over more. . .. [W]e had, I think it was a 2-inch rule. Merchandise couldn’t hang over 

2 inches above or beyond the crossbeam. But in non-inventory we always violated that 

rule because those pallets always hung over significantly more, 4, 5, 6 inches. But if they’re 

hanging over on both ends that much that adds a lot . . . of length. And so, when they 

would pull that pallet back in and then . . . have to bring it down they would have . . . to 

have their backrest very close to if not touching the crossbeam in the back. 

(Tr. 228-229). 

14 In the interest of personal privacy, the injured and deceased Chewy workers’ initials were used 

throughout the proceedings as much as possible. 

15 In comparison, universal stance forklifts are equipped with four posts surrounding the operator’s cabin. 

(Tr. 358; Ex. J-5, at 8). 

16 The Features Brochure: Raymond Trucks and Tow Tractors depicts universal stack-stance and dock 

stance forklifts. (Ex. J-5, at 8). The Raymond dock stance forklift depicted shows an altered version in 

which a post is installed on the rear of the forklift to the left of the operator and an extended backrest to the 

right of the operator. (Tr. 353-354; Ex. J-5, at 8). This altered version of the dock stance forklift was not 

used in the Ocala warehouse at the time of the incident. (Tr. 354). 

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The traffic day-to-day in the non-inventory aisles of the Ocala warehouse was very light.17 

(Tr. 205-206, 638). As a general rule, there was no pedestrian traffic, and the forklift operator had 

the aisle to himself, in the non-inventory section of the warehouse. (Tr. 206-207, 638). A 

maximum of two Chewy operators worked in the non-inventory area of the facility, and often only 

one operator worked in the non-inventory area at a time. (Tr. 206, 638). As a “mechanism of 

efficient design,” Chewy kept the inventory and the non-inventory warehouse sections separate. 

(Tr. 684). 

With regard to the pre-designed racking system, while Chewy is responsible for the “safety 

integrity of the storage rack system,” Chewy contracts with a third party, Storage Solutions 

Incorporated (SSI), to design the racking structure itself. (Tr. 496, 532). Chewy passes on 

“fulfilment optimization” information to SSI, which then designs a racking system “that supports 

the weight of [Chewy’s] product.” (Tr. 532-533, 536-537). After SSI designs the racking system, 

the racking system is assembled within Chewy’s warehouse and anchored to the floor. (Tr. 533-

534). Notably, no SSI engineering specifications, drawings, or engineering testimony with regard 

to the Ocala warehouse racking system, before or after the system was altered as a result of the 

incident, are in this record. 

Chewy Safety Personnel 

At the time of the relevant incidents in this case, Chewy had several employees involved 

with warehouse safety. At the Ocala facility, there were four safety coordinators who provided 

safety coverage throughout the week. (Tr. 238-239). They reported to the Ocala Warehouse Safety 

Manager, Joshua Rose. (Tr. 236-237). Mr. Rose reported to a regional safety manager. All 

regional safety managers reported to the Director of Safety and Loss Prevention, Craig Gage. Mr. 

Gage reported to the Vice President of Operations for distribution centers nationwide, Mike 

Gilbert. (Tr. 163, 166–168, 217). 

Caleb Prater began working for Chewy on October 3, 2018, serving as the Regional Eastern 

Continental Safety Manager at the time of Mr. RP’s incident. (Tr. 611, 615-616, 680). Mr. Gage 

subsequently left Chewy in September 2019. (Tr. 163). At that time, in September 2019, Mr. 

Prater became the Director of Safety and Loss Prevention. (Tr. 163, 612, 619). As discussed 

17 In contrast, the other parts of the warehouse, including the inventory section, had “a tremendous amount 

of PIT and people interaction.” (Tr. 174). 

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below, Mr. Prater’s description of Chewy’s safety management structure after he became Chewy’s 

Safety Director reveals that the management structure remained generally as described above.18 

(Tr. 615). 

First Under-Ride Incident 

On July 11, 2018, five months before the fatal incident that precipitated this case, Chewy 

experienced an under-ride incident in the non-inventory section, of the Ocala warehouse. (Tr. 84, 

Ex. J-1, at 1). In the accident report, called the “GM Safety Critical Incident Recap,” Ocala 

Warehouse Safety Manager Rose detailed the incident as follows: “TM19 BB, was pulling pallets 

of corrugate (98s) [the product] down. TM over-corrected his steering while joystick got hung up 

on his radio wire, the equipment continued to turn pinning the TM under the racking.” (Tr. 84, 

240-241; Ex. J-1, at 1). The accident report narrative of the incident stated, “TM BB became 

pinned when his high reach backed into a bay and the racking cross beam impinged on the reach 

cabin.” (Ex. J-1, at 1). Team members and managers from safety, maintenance, and ops promptly 

responded and were able to free TM BB “by cutting the cross beam from the structure.” Id. Mr. 

BB was transported by first responders to the Ocala Regional Emergency Room. Mr. BB sustained 

several broken ribs and bruising as a result of this incident. Tr. 85; Ex. J-1, at 1). 

Warehouse Safety Manager Rose’s accident report described the “Direct Cause” of the 

incident as “TM [BB] was pinned between high reach and racking.” (Tr. 84-85, 171, 242, 252; 

Ex. J-1, at 2, 3). In the accident report two “Root Causes” are identified. “The radio wire was 

exposed on the front portion of [Mr. BB’s] torso. Non-inventory racking in 54.5 inches from floor 

to beam. Reach truck cabin height dimensions are 47 [inches] to the lowest point and 51 [inches] 

at its highest.” (Tr. 85, 171-172, 242-243, 252; Ex. J-1, at 2). 

In the accident report, process changes included in the Root Cause Analysis “to ensure this 

type of incident cannot happen again,” state “(1) Investigate lowering of the non-inventory racking 

18 Also involved with the events of this case was Cory Billet, whose role is described more fully below. 

Beginning in or around December 2017 until the summer of 2019, Mr. Billet was the Director of the 

Capacity Organization. (Tr. 476, 518-519). In or around July 2019, Mr. Billet became Senior Director of 

Fulfillment Optimization. (Tr. 472, 476, 518). 

19 Chewy refers to its employees as team members, abbreviated “TM.” (Tr. 156). 

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to match standard MOD height. (2) While on lifts radios with wires are to be worn with wire 

coming from the back to the shoulder.” (Tr. 85-86, 172-173, 189, 243-244; Ex. J-1, at 3). Mr. 

Rose testified that the first stated process change was to lower the racking so the truck would hit 

the rack and stop the equipment from going under the rack. (Tr. 244). 

At the time of the incident Chewy Safety Director Gage and the Regional Safety Manager20 

reviewed the accident report prepared by Warehouse Safety Manager Rose. Mr. Gage agreed with 

Mr. Rose’s recommendations in the accident report. (Tr. 170-173, 244). 

Prior to his work at Chewy, Mr. Gage had ten years of experience as a safety professional 

in warehouse facilities, including for Amazon fulfillment. He was familiar with the under-ride 

hazard21 and had experience in responding to under-ride incidents that occurred during his tenure 

at Amazon.22 (Tr. 163-166, 176). At the time of Mr. BB’s under-ride incident, Warehouse Safety 

Manager Rose had never heard of an under-ride hazard or a roll-under hazard. (Tr. 237-240). 

As a result of its investigation, Chewy determined that one “root cause” of the incident was 

the radio wire and sent out a “Safety Red Alert” to the staff company-wide to highlight “proper 

radio headset wearing” while driving the lift truck. (Tr. 172, 177, 240-241, 245-246, 252-253, 

274-277; Exs. J-1, at 3; R-8). Safety Director Gage testified that Chewy also “changed” the 

training to ensure “the training did have the under-ride hazard noted so that operators would 

understand that [under-ride] is a potential hazard.” (Tr. 172, 177). 

Chewy did not, at that time, make any physical changes to the facility or to the dock stance 

lift trucks. (Tr. 177). At that time, Safety Director Gage stated there were communications 

between Chewy and the forklift manufacturer Raymond regarding adding an extended backrest 

20 Mr. Rose testified that be believed Caleb Prater was his manager at the time of the July 2018 incident. 

(Tr. 244). However, Mr. Prater was not employed by Chewy until October 2018. (Tr. 666). 

21 Mr. Gage defined the under-ride hazard as: “It’s when a piece of equipment, particularly a stand-up reach 

truck, forklifts, where the operator’s actually standing up in the cab, backs up underneath [a] horizontal 

racking crossbeam, backs up underneath that and gets pinned.” (Tr. 165). 

22 Safety Director Gage testified regarding the manner Amazon chose to abate the under-ride hazard. 

At Amazon we chose to lower load beams and install extended backrest[s], there’s steelplated backrests that will protect the operator and install posts that prevent the operator 

from going underneath. In my mind those are the best solutions. You know, we can train 

operators to ensure that they understand the hazards that exists and that they are cognizant 

of it when they’re operating their equipment as well. 

(Tr. 166. See Tr. 197-198). 

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and third post to the dock stance reach trucks. These changes were “declined.” Mr. Gage 

researched installing an aftermarket fourth post to the reach trucks. Raymond did not approve 

adding the aftermarket third or fourth post to the dock stance reach trucks at that time.

23 (Tr. 87-

88, 137-138, 157, 177-178, 190-191; Ex. J-2. See Tr. 349-350, 374-375, 422-425). 

With regard to the incident involving Mr. BB, Mr. Gage recommended that Chewy “look 

into lowering the non-inventory racking” as a potential “process change” in response to address 

“the under-ride.” (Tr. 172-173, 175-176, 244-245; Ex. J-1, at 3). Mr. Gage initially recommended 

this change to be implemented across all warehouses, including Mr. Gage’s home Dallas 

warehouse, in both inventory and non-inventory racking systems. (Tr. 175-176). Chewy chose 

not to implement that recommendation. Mr. Gage then recommended Chewy lower the rack 

beams in only the non-inventory aisles. (Tr. 174, 176, 244-245). According to Mr. Gage, this 

particular recommendation also was not approved by Chewy Vice President Mike Gilbert because 

“the feeling was that if we lowered the load beams even in just non-inventory, that that would 

somehow affect the capacity that we had for non-inventory.” (Tr. 174, 176). 

Second Under-Ride Incident 

In the same non-inventory section of the Ocala warehouse, while operating a similar model 

Raymond dock stance reach truck, without guards or extended backrests installed, with the height 

of the racking system horizontal crossbeams unchanged, on December 16, 2018, about five months 

after Mr. BB’s incident, Mr. RP’s fatal under-ride incident occurred. (Tr. 81-82, 155-157, 177). 

On December 16, 2018, Mr. RP was found by coworkers unresponsive, pinned between the 

racking in Aisle 7 and his Raymond high reach truck. (Tr. 49-50, 55-59; Ex. J-3, at 1. See Ex. C5, C-6, C-8, C-12, C-14). When Mr. RP’s reach truck rode under the horizontal storage rack, he 

23 Chewy’s Field Procurement Manager Stacy Mowery sent an email inquiry to Raymond National 

Accounts Manager David Ritter regarding adding the aftermarket post to Chewy’s reach trucks. Mr. Ritter 

replied: 

Raymond will not approve to have this installed on their truck. On any manufactures (sic) 

reach truck with a dock stance like you have you cannot have a post behind the operator. 

This would cause a blind spot, false sense of security and the post could protrude into the 

operator compartment if hit. If you have any questions please let me know. Have a great 

weekend. 

(Ex. J-2; See Tr. 190, Ex. J-4, 1, App. A). 

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sustained a crushing injury from the rack and died, his cause of death identified by the medical 

examiner as compression asphyxia. (Tr. 41, 102-103; Ex. C-13, C-14). 

Warehouse Safety Manager Rose investigated Mr. RP’s under-ride incident. (Tr. 192, 254-

262). Mr. Rose was assigned to interview witnesses and take photographs. (Tr. 192). Mr. Rose 

reviewed the available video footage from a surveillance camera, located on an adjacent aisle, that 

captured the movement of Mr. RP’s reach truck at and around the time of the under-ride incident.24 

Mr. Rose prepared a detailed breakdown of what he saw when watching the video. (Tr. 255-259; 

Ex. J-3, App. C, at 5-6). The video showed the mast of Mr. RP’s forklift retrieving product a 

couple times and coming up the specific aisle to retrieve product. The video shows Mr. RP 

bringing the mast all the way up, retrieving product out of this specific aisle, and then bringing the 

mast down. There appeared to be stops or breaks of a few seconds as he brought the mast down. 

(Tr. 255-258; Ex. J-3, App. C, at 5). As Mr. RP “brought the equipment or . . . the pallet down, he 

then slowly, not like what Mr. BB did,25 it was very slow. It wasn’t aggressive. He slowly kind 

of turned and then happened to just almost kind of coast into the racking itself.”26 (Tr. 255-256. 

See Tr. 195-196, 259). The video shows Mr. RP's equipment stops at the racking. Due to the 

location of the camera, the video does not actually show Mr. RP himself as he hit the racking. (Tr. 

258). 

At the time of Mr. RP’s incident, there was no other traffic in Aisle 7 where the incident 

occurred. When reviewing the surveillance video, Warehouse Safety Manager Rose noted that 

24 Mr. Gage testified that there are 55 surveillance cameras at the Ocala worksite. (Tr. 213). This video 

footage shows “one aisle over” from Aisle 7, in the non-inventory area of the warehouse. (Tr. 213). 

According to Mr. Gage, “you [can’t] see [Mr. RP] or the actual impact,” but “you can see the forks turning. 

So, you can kind of surmise seeing the forks turning that what was happening with the truck obviously.” 

(Tr. 214. See Tr. 223-224, 255-256). 

25 Warehouse Safety Manager Rose testified that he had never before seen an accident like Mr. RP’s at 

Chewy. “[I]t was different than . . . BB's. . . . Mr. BB's has the cord and it [was] an aggressive very quick 

[move] which then caused Mr. BB into the racking. This move was a very slow, didn't have that much force 

to it.” (Tr. 259). 

26 Mr. Rose’s surveillance video review also revealed that Mr. RP’s lift truck movement immediately before 

the under-ride was very slow. Mr. Rose’s testimony is credited. (Tr. 255-256. See Tr. 195-196, 258-259). 

On cross-examination, Mr. Prater testified he did not know how fast Mr. RP was moving at the time of his 

under-ride incident. (Tr. 750). 

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there were other team members in adjacent aisles. Mr. Rose specifically noted that when Mr. RP’s 

forklift hit the racking no one looked in the direction of the forklift rack impact. (Tr. 258). 

[I]f the impact was heavy, then someone would have heard something. And not 

any moment [did] anyone look[] in the direction, even when Mr. RP did . . . hit the 

racking. So that’s how I determined it to be very slow because there was really no 

audio indicator happening at all with other people that were in an adjacent aisle in 

around non-inventory. 

(Tr. 258). 

According to Mr. Rose, “at no point did I ever determine the root cause from [Mr. RP’s] 

incident.” (Tr. 261. See Tr. 254, 258-259). Mr. Rose did not create or generate a root cause or an 

incident report with recommendations, as he had following Mr. BB’s incident. (Tr. 261). Mr. Rose 

provided the information from his review of the video to Safety Director Gage and to Regional 

Safety Manager Prater to whom Mr. Rose reported. (Tr. 261, 616, 632-633). 

Safety Director Gage prepared the Fatality Investigation Report regarding Mr. RP.

27 (Tr. 

193, 219; Ex. J-3). At the time Mr. Gage prepared the Fatality Investigation Report,

28 he noted 

there were no first-hand witnesses or direct video footage of Mr. RP’s incident. Mr. Gage’s report 

referenced electronic data recorded on the Raymond reach truck that Mr. RP was operating at the 

time of the incident, and Mr. Rose’s detailed breakdown of the available video from an adjacent 

aisle, discussed above. (Tr. 195-196; 220-225; Ex. J-3, at 1-2; App. B, App. C). 

Mr. Gage testified that his recollection from viewing the surveillance video was that Mr. 

RP “wasn’t traveling down the aisle at high speed and then lost control.” (Tr. 196) (emphasis 

added). Instead, according to Mr. Gage, Mr. RP was starting a turn; “he didn’t travel any real 

distance to get any speed.” (Tr. 223). Mr. Gage’s recollection from viewing the surveillance video 

was that Mr. RP’s incident “certainly happened so quickly that . . . I’m not sure what he could 

[have] been doing.” (Tr. 223). Mr. Gage surmised that Mr. RP did not watch what was behind 

him or his angle because he drove up underneath the rack. (Tr. 223-224). Mr. Gage testified that 

27 Mr. Gage prepared the report at the direction of Chewy’s legal counsel and input from Mr. Gage’s direct 

supervisor, Mike Gilbert, Vice President of Operations. (Tr. 167, 193-197; Ex. J-3). 

28 The Fatality Investigation Report regarding Mr. RP was prepared close in time to Mr. RP’s incident, on 

December 18, 2018. The report in error is dated 12/18/2019. (Tr. 230; Ex. J-3). 

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Mr. Rose’s detailed breakdown of the available video did not note anything reckless. (Tr. 225; 

Ex. J-3, App. C). 

Using electronic data recorded by the Raymond forklift of Mr. RP’s actions, such as Mr. 

RP’s use of the deadman pedal,29 Safety Director Gage was able to determine that Mr. RP was 

pinned for 20-25 minutes before “somebody came over and started the equipment again[.]” (Tr. 

221). Mr. Gage testified that Mr. RP’s forklift “stopped right when he went up underneath, he was 

pinned and couldn’t step on the deadman, so he couldn’t move the equipment forward at that point 

and the equipment just stopped and shut down.”30 (Tr. 221-222; Ex. J-3, App. B, at 4). 

The Investigation Recap in Mr. Gage’s report, states that Fulfillment Specialist RP was 

found: 

unresponsive, pinned between the racking in aisle seven and his reach truck. [RP] 

has been working on a Raymond High Reach, Truck ID# 26, replenishing outbound 

corrugate in aisle seven, when due to unknown circumstances his reach truck veered 

to the left of his travel path and ended up partially under a pallet cross beam [See 

Appendix A photo of incident] pinning him inside the cockpit of the equipment. 

(Ex. J-3, at1). 

The Investigation Root Cause in Mr. Gage’s report, states: 

Noting that [RP] completed his pre operation checklist in only 16 second reveals 

that [RP] started this day operating the reach truck in a careless manner. 

Additionally, since the equipment was thoroughly checked by Raymond and no 

equipment problems were found, it can only be deduced that [RP] backed under the 

racking due to careless operation. The aisle widths, and pallet placement in this 

area is such that it [,] removing and placing pallets, which happens thousands of 

times a day at Chewy[,] can and is easily done safely without backing under the 

load beam. 

(Ex. J-3, at 2) (emphasis added). 

29 “[T]he deadman is a pedal on the floor in the driver’s compartment, on the floor of the equipment. [T]he 

driver has to stand on it at all times. If [the driver takes his] foot off of it [the deadman pedal] that stops 

the equipment. The deadman pedal is “an automatic brake and the equipment thinks that the operator has 

left the compartment, therefore, it’s not running anymore[.]” (Tr. 221, 641). 

30 According to Mr. Gage, after ten minutes of inactivity, Mr. RP’s forklift automatically shut down and 

logged off at 12:24:55. (Tr. 220-221.) Mr. RP’s forklift next recorded movement “Operator Logon,” when 

coworkers tried to rescue him at 12:36:25. These times were automatically recorded on Mr. RP’s forklift 

“Deadman Hour Meter.” (Tr. 220-223; Ex. J-3, at 1, App. B, at 4). 

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Mr. Gage testified that following Chewy’s investigation they “didn’t know for sure” the 

root cause of Mr. RP’s fatal incident. (Tr. 194, 223-224. See Tr. 758-759). Mr. RP “likely wasn’t 

operating in a safe manner. Maybe moving too fast, took the turn too fast. Obviously not watching 

his direction of travel.” (Tr. 194, 223-224; Ex. J-3). Mr. Gage further testified: 

You know we had had some other under-rides where some fork truck had slipped 

on water and slid up underneath and, you know, then the root cause was the water 

issue.

31 But in this case, we couldn’t find any other reason why that truck went 

under other than the fact that it looked like he probably wasn’t paying attention. 

(Tr. 194. See Tr. 224). 

In preparing the Fatality Investigation Report regarding Mr. RP, Safety Manager Gage was 

told that Chewy Vice President of Operations Mike Gilbert wanted the report to focus on behavior 

and not to include the under-ride hazard or the shelving height in the report.32 (Tr. 196-197). The 

under-ride hazard is not mentioned in the report. (Ex. J-3). 

As Regional Safety Manager at the time of Mr. RP’s incident, Mr. Prater also participated 

in the evaluation and analysis of the root cause of the incident. (Tr. 633-634. See Tr. 722-723). 

Mr. Prater testified that nothing abnormal about the environmental conditions or physical 

circumstances was uncovered during the incident investigation. Therefore, with “the absence of 

any outlying factors, [the root cause] was just reckless operation of the truck.” (Tr. 634). Mr. 

Prater stated the investigation disclosed that at the time of the incident, Mr. RP was performing a 

very familiar task, pulling away with non-inventory merchandise. According to Mr. Prater, the 

incident investigation did not disclose anything that caused Mr. RP to lose control of the forklift. 

(Tr. 637, 640-641). 

31 Mr. Gage testified that “we had a number of under-rides at Chewy.” (Tr. 212). One incident, in WilkesBarre, Pennsylvania, occurred when the operator was following a Zamboni floor cleaner that left water 

trailing behind it. (Tr. 212). The operator slid and “did under-ride,” but, according to Mr. Gage, the 

operator’s “back-rest was high enough that he didn’t hardly go under, you know, there was some equipment 

damage and we reported it as a serious incident.” There was a GM safety critical incident recap written on 

it. (Tr. 212-213; See Tr. 168-169). Mr. Gage’s testimony, quoted in the accompanying text, reveals this 

under-ride occurred prior to Mr. RP’s December 16, 2018, under-ride. (Tr. 194) (“You know we had had 

some other under-rides where some fork truck had slipped on water and slid up underneath . . ...”) (emphasis 

added). 

32 This testimony is undisputed. Mike Gilbert was Chewy Vice President of Operations at the time of the 

under-ride incident and at the time of the hearing. (Tr. 167, 667-668). He was not called as a witness. 

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OSHA Inspection 

OSHA Compliance Safety and Health Officer Gerard Driscoll investigated this matter.33 

After the Ocala Police Department reported the incident to OSHA, CSHO Driscoll was dispatched 

to inspect the worksite that same day. (Tr. 40-42). He testified that, when he arrived at the 

warehouse, the incident site was “untouched other than the moving of the stand-up forklift to 

rescue [the decedent],” and the employees had been sent home. (Tr. 42-43). He held an opening 

conference with Warehouse Safety Manager Rose, viewed the incident scene, took photographs, 

and measurements of the non-inventory aisle, racking system horizontal beam, and the Raymond 

forklift Mr. RP was operating at the time of the incident. (Tr. 41-43, 57-63, 246-247; Exs. C-3, C5, C-6, C-7, C-8, C-9, C-12, C-13, C-14). CSHO Driscoll testified the workplace presented the 

safety hazard of horizontal intrusion or roll-under of the forklift operator’s compartment beneath 

the rack storage system. (Tr. 63). CSHO Driscoll spoke with Mr. Rose about possible methods to 

abate the roll-under hazard, including the possibility of lowering the racking height in the noninventory aisles.34 (Tr. 63-64, 247, 261-262). 

As part of his inspection, CSHO Driscoll referred to OSHA’s published guidance, or Safety 

and Health Information Bulletin (SHIB), on the roll-under or under-ride hazard entitled, “Standup Forklift Under-ride Hazards.” (Tr. 64-65; Ex. C-2). Published on July 29, 2009, the SHIB’s 

depiction of the under-ride hazard based on the “height of the cab compared to the height of the 

horizontal rack beam,” was “very similar” to the Chewy incident here, according to CSHO 

Driscoll. (Tr. 69; Ex. C-2, at 2). He testified that he relied on the SHIB’s methods of abatement 

“as an example of what others may have recommended” when considering whether there were 

33 CSHO Driscoll works out of the Jacksonville, Florida OSHA Area Office and has been employed by 

OSHA for seven years. (Tr. 38-39). He currently conducts approximately 100 inspections per year, 45 

percent of which are general industry related. (Tr. 40). 

34 The credited testimony of CSHO Driscoll and Warehouse Safety Manager Rose reveals OSHA did not 

direct Chewy to lower the racks in the Ocala warehouse non-inventory aisles. (Tr. 63-64, 247, 261-262). 

While Mr. Prater testified that he was present during conversations with CSHO Driscoll, he did not 

testify regarding his recollection of the conversations, or the specific statements made. Rather, Mr. Prater 

generally testified that he “worked with the site to interpret, you know, those conversations and put them 

in - into effect.” (Tr. 705) (emphasis added). Mr. Prater’s “interpretation” that OSHA gave Chewy a 

“mandate” to lower the horizontal beam is not credited. (Tr. 705-706, 711). Likewise, Mr. Billet’s 

testimony regarding non-specific, second-hand statements, allegedly made by OSHA, is unreliable and not 

credited. (Tr. 489- 490, 492, 511-512, 558). 

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feasible means of abating the under-ride hazard at Chewy’s Ocala warehouse. (Tr. 70-71; Ex. C2, at 3-4). 

The SHIB references the American National Standard ANSI B56.1-2005, paragraphs 4.5.3, 

7.30, and 7.36. CSHO Driscoll reviewed the ANSI standard during the inspection. CSHO Driscoll 

testified that ANSI Standard B56.1 relates to stand-up forklifts, and ANSI recognizes the underride hazard in the warehouse environment. The ANSI standard, in Chapter 7, lists feasible means 

to abate the under-ride hazard in warehouse environments, including “lowering the horizontal 

storage beam to prevent roll-unders.” (Tr. 71-73; Ex. C-2, at 3). 

Also, during the inspection, CSHO Driscoll reviewed the Features Brochure Raymond 

Trucks and Tow Tractors, regarding stand-up forklifts, including the dock stance forklift model 

operated by Mr. RP when the under-ride incident occurred. (Tr. 89-92; Ex. J-5, at 8). The 

Raymond Brochure describes that “in some environments of use, the first level horizontal rack 

beams are higher than the top of the forklift power section and lower than the overhead guard. In 

such a situation, the potential exists for the power section to under ride the rack beam.” (Tr. 90-

92; Ex. J-5, at 8). 

Upon CSHO Driscoll’s return to the Chewy worksite two days later, he interviewed 

witnesses. (Tr. 81). CSHO Driscoll learned that Chewy had “indeed lowered the horizontal rack 

beam in the non-inventory aisles” below the height of the rear of the lift truck. (Tr. 63-64, 105, 

247). Consequently, CSHO Driscoll determined that no under-ride hazard existed any longer in 

the non-inventory aisles at the Ocala warehouse. (Tr. 64). 

CSHO Driscoll would not consider “extra wide” aisles to be a means of reducing the 

likelihood that a reach truck operator will strike or under-ride a rack.35 (Tr. 155). He further 

testified, “all the training in the world isn’t going to prevent you driving your forklift under a 

shelf.” (Tr. 144). 

Chewy’s Post-Incident Actions 

After Mr. RP’s incident, Chewy lowered the horizontal beam on the pre-designed racks in 

the non-inventory aisles at the Ocala facility that same day or the day after, and within the next 

35 Chewy uses the term “extra-wide aisles” to indicate that its aisles are 12 inches wider than the minimum 

required by the Raymond lift truck manufacturer for safe operation of its lift trucks. (Tr. 482-483, 504-

506; Resp’t Br. 54-56; Sec’y Br. 23-24.) 

17 
 

 

 

 

 

 

 

 

 

 

 

 

few weeks at all the Chewy warehouses.36 (Tr. 188-89, 192, 197, 207-208, 247, 583-584, 702, 

735, 739). According to Warehouse Safety Manager Rose, at the Ocala warehouse, the racks were 

lowered by the maintenance team.37 (Tr. 247-248). It took about four to five hours to complete 

an aisle. (Tr. 248). With the non-inventory horizontal racks lowered, it was no longer possible 

for the Raymond dock stance lift trucks to under-ride or roll-under the shelves. (Tr. 249). After 

the racks were lowered in the non-inventory aisles, Chewy’s warehouses continued to operate.38 

(Tr. 192-193, 248). 

Safety Director Gage testified that, after Chewy lowered the horizontal beam at all its 

warehouses, he noted an increase in reach trucks striking the lowered beam because the “the aisles 

were pretty tight.” (Tr. 175-176, 211, 215, 226-228). Mr. Gage concluded that the Dallas Chewy 

forklift operators “when they’re putting pallets up or putting pallets down and they’re backing up 

they’re using that crossbeam almost as a break. They’re banging into it. So, we needed to fix 

that.” (Tr. 226). He testified that the forklift operators “just needed to slow down. I mean, that 

was the issue there. We needed to get them to understand that impacting that beam wasn’t going 

to be acceptable.” (Tr. 212). Mr. Gage testified: 

[L]et’s be clear, the aisle was tight, but it was wide enough for them to bring pallets 

down without hitting that beam, they didn’t need to hit it...It was close, it was very 

close, and they needed to slow down, and they needed to be careful. But backing 

out of . . . or backing into an inventory location, a non-inventory location did not 

36 Regional Safety Manager Prater had a role in the initial decision to lower the horizontal beams in the 

non-inventory section of the warehouse. (Tr. 704-705, 711). Thereafter, as Regional Safety Manager and 

later as Safety Director, Mr. Prater re-evaluated the decision to lower the horizontal beams and determined 

that lowering the beams increased the likelihood that the lift truck would strike the cross-members 

introducing additional hazards equal or greater than the under-ride hazard. (Tr. 708, 712). 

37 Safety Director Gage recalled that immediately following Mr. RP’s fatal accident, Chewy Vice President 

of Operations Gilbert, and Ocala Warehouse General Manager Kushman Hanns, themselves, walked out 

onto the floor and began to lower the beams at the Ocala warehouse. VP Gilbert made the decision to 

contact all the Chewy sites and have the rack beams lowered. (Tr. 188, 207-209, 216-217). 

38 The floor space below the lowered beam was used for non-inventory box stock and smaller pallets. (Tr. 

210-211, 248-249, 531-532). Warehouse Safety Manager Rose, Senior Director of Fulfillment 

Optimization Billet, and Safety Manager Prater testified that reconfiguring the racks to address the underride hazard reduced Chewy’s non-inventory storage capacity. (Tr. 262-263, 265, 530-532, 703-706). 

18 
 

 

 

 

 

 

 

 

 

 

 

require that they back underneath that beam or hit that beam. They just had to 

operate more slowly, more deliberately. 

(Tr. 233). According to Mr. Gage, all Chewy warehouses (except for one) had the same, standard, 

aisle widths. (Tr. 482-483). The Chewy Ocala and Dallas warehouses had the same aisle widths. 

(Tr. 229). After Mr. BB’s and Mr. RP’s under-ride incidents there is no evidence that Chewy 

altered or increased its standard aisle width in its warehouses. 

In addition, after Mr. RP’s fatal incident, Chewy management worked with manufacturers 

Raymond and Hyster to approve, engineer, and install a rear cabin guard for the Raymond dock 

stance reach trucks used in Chewy’s warehouses, including the Ocala warehouse. (Tr. 198-203). 

This project to develop an “engineered solution” to the under-ride hazard of reach trucks riding 

under the horizontal beam of the racking system was principally handled by Chewy Vice President 

of Operations Mike Gilbert and the Vice President of Procurement for PetSmart, Chewy’s parent 

company. (Tr. 198, 201, 217-218). Safety Director Gage was kept somewhat informed about this 

project. Mr. Gage prepared the “React Truck Enhanced Driver Protection Project” summary 

report, with attachments.39 (Tr. 201, 658). Regional Safety Manager Prater was not involved in 

this project. (Tr. 661). 

The engineered solution that Chewy developed with Raymond and Hyster was a rear cabin 

guard installed on the Raymond dock stance reach trucks used in Chewy’s warehouses. This rear 

cabin fourth post had a curved design so the driver’s head would not impact the post. The 

39 The “React Truck Enhanced Driver Protection Project” summary report states, in pertinent part: 

Since the December 16th fatality at [Chewy’s] Ocala Fulfillment Center [,] Chewy has been 

vigorously working with both Raymond and Hyster to get them to change their policy and 

design a rear cabin guard that would protect the driver from an under-ride hazard. After 

many iterations[,] Hyster and Raymond have agreed upon a design, (see Appendix C) that 

will not only completely protect the reach truck driver from an under-ride but will do so 

without adding in any additional hazards such as potential head impacts, blind spots, and 

impingement. This design, the result of a collaborative effort between Chewy and 

Raymond is set to be implemented no later than June 30th [2019]. 

While there were other less effective, and significantly easier solutions to implement none 

would have been 100 % effective as this one is. With a total investment from Chewy of 

over $ 900,000, (see Appendix D), a testament to Chewy’s commitment to the health and 

safety of its team members across the nation, this was not the least costly solution, but 

again, it was the one that is 100 % effective in eliminating the under-ride hazard. 

(Ex. J-4, at 1, Tr. 201-202. See Ex. J-4, at 5, App. C). 

19 
 

 

 

 

 

 

 

 

 

 

engineered rear cabin post protected the reach truck driver from an under-ride, without adding 

hazards such as blind spots, head impacts, or impingement. (Tr. 201-202, 266, 269-271, 278; Ex. 

J- 4, at 4, App. C). 

The total cost to outfit Chewy’s fleet of Raymond dock stance reach trucks, at each Chewy 

warehouse, with the engineered rear vertical posts was approximately $900,000. (Ex. J-4, at 5, 

App. D). According to Mr. Gage, “you cannot, once you have those two posts in the rear of the 

driver, you cannot go underneath a load beam no matter how high or how low that load beam is, 

it is physically impossible to injure the driver by going underneath.” (Tr. 201-202; Ex. J-4, at 5, 

App. C). After the post was installed on the dock stance lift trucks, there were no further underride incidents at the Ocala warehouse. (Tr. 272). The React Truck Enhanced Driver Protection 

Project summary report, with attachments, describing this abatement measure for the Raymond 

forklifts and associated costs, was presented to OSHA at an informal conference, by Safety 

Manager Gage and Respondent Counsel.40 (Tr. 201, 225-226; Ex. J-4). According to the 

Secretary, “this abatement measure completely eliminated the under-ride hazard for this lift truck 

in Respondent’s facilities.” (Sec’y Br. 9-10). 

Following Mr. RP’s fatal incident, when Chewy opened new warehouse sites, Chewy 

equipped the warehouses with universal stance lift trucks, which have two rear vertical posts. (Tr. 

233-234, 523-524, 527, 529, 593-954. See Ex. J-5, at 8). Respondent continues to evaluate the 

advantages or disadvantages of deploying the universal stance lift trucks in its new facilities.41 Id. 

40 Current Chewy Safety Director Prater testified that to his knowledge, at the Ocala warehouse, the noninventory storage racks remain in their lowered position. He approved re-raising the non-inventory storage 

racks in other locations after the fourth posts were installed, due to business necessity. (Tr. 745. See Tr. 

586). 

41 Chewy Safety Director Prater testified that in a universal stance forklift, the operator has less relative 

ease of visibility, when compared to operating a dock stance truck. The universal stance operator has “to 

reposition their body within the operator’s cabin” to see in each direction of travel, forward or backward. 

Also, the universal stance truck has two throttles and one steering wheel, requiring the operator to steer 

with his right hand traveling in one direction, and with his left hand traveling in the other direction. Mr. 

Prater testified that changing hand steering position is confusing for new operators. (Tr. 671-674. See Tr. 

604). 

The Secretary’s expert witness Guy Snowdy testified the universal stance forklift is more versatile 

than the dock stance truck. (Tr. 355-358). Mr. Snowdy stated there are three different positions an operator 

may use when operating the universal stance forklift, including driving the universal stance in the dock 

stance position. (Tr. 355-56, 438-441; Ex. J-5, at 8). 

20 
 

 

 

 

 

 

 

 

 

 

The Secretary’s expert Mr. Snowdy testified that use of the universal stance lift trucks addressed 

the under-ride hazard. (Tr. 361-362). 

When asked whether the cost to outfit the Raymond forklifts with the Raymond engineered 

guards would “threaten Chewy’s economic viability,” Mr. Gage replied, “there would be no way, 

it’s a multi-billion-dollar company.” (Tr. 203; Ex. J-4, at 5, App. C). Mr. Prater confirmed that 

Chewy has grown as a company “for sure” in 2020. (Tr. 757-758). Mr. Prater testified, “well, I’d 

say that we achieved that growth probably in thanks to our extra wide aisle and great training. 

Despite these guards, we’ve been able to fulfill customer demand and achieve growth, yes.” (Tr. 

758). 

Chewy Management Structure 

At the time of the incidents in this case, Craig Gage was the Director of Safety and Loss 

Prevention at Chewy. (Tr. 163, 191-192).42 Mr. Gage was Safety Director from October 2017 to 

September 2019, when he left employment at Chewy. (Tr. 163, 616). As the Director of Safety 

and Loss Prevention, Mr. Gage was responsible for the seven warehouses Chewy had at the time, 

and he himself was based at the Dallas warehouse site. (Tr. 166-167, 175). As Safety Director, 

Gage was responsible for everything relating to safety, security, and retail loss prevention, 

including internal theft, workplace violence, workers compensation, and food safety. 

When it came to workplace incidents, Mr. Gage reviewed incident reports or “recaps” 

prepared by the safety managers and directed by the regional safety managers. (Tr. 168-169). Mr. 

Gage would send these reports back to safety managers and “regionals” if he determined the report 

required “more detail,” “better root cause,” or “better process change.” (Tr. 168-169). Mr. Gage 

would also “respond to the scene” of any serious incident, like the two fatalities he experienced 

Mr. Prater agreed that the operator of the universal stance lift truck may also stand sideways. He 

described this operating position as “ergonomically unfriendly.” (Tr. 673). 

42 Mr. Gage has worked in safety and loss prevention in general since 1982, in industries including grocery, 

big box retail, and online distribution fulfillment. (Tr. 163-164). Before Chewy employed him, Mr. Gage 

worked for ten years with warehouse spaces – eight years at Amazon and two years at Target stores in 

distribution. (Tr. 164). Based on his experience of being “in charge of safety” at Amazon before his work 

at Chewy, Mr. Gage agreed that he was familiar with the under-ride hazard. He testified that he had 

previously experienced accidents involving under-rides at Amazon, “one or two instances of that where we 

had somebody injured.” (Tr. 165-166). 

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while he was at Chewy, and “head up” the investigations into those serious incidents. (Tr. 169-

170, 192-193). 

At the time of the incidents in this case, Joshua Rose was the Ocala Warehouse Safety 

Manager. Mr. Rose worked for the Ocala warehouse from June 19, 2017, until mid-November 

2019.43 (Tr. 237). As the Ocala Warehouse Safety Manager, Mr. Rose was responsible for “the 

overall safety and culture of that building.” (Tr. 238). 

Also, at the time of the incidents relevant to this case, July 2018 and December 2018, Cory 

Billet was the Director of the Capacity Organization.

44 (Tr. 517-519). According to Mr. Billet, 

“the capacity organization manages the storage space within our facilities.” (Tr. 473). Mr. Billet 

explained that “capacity organization” uses the company’s “financial forecast” to determine “how 

much cubic storage [] is required for inventory in all of our fulfillment centers in order to meet the 

[projected] sales numbers.” (Tr. 473-474). As Director of the Capacity Organization, Mr. Billet 

was responsible for facility storage design and racking configuration layout at all Chewy 

fulfillment centers. (Tr. 518, 485-486). Mr. Billet was involved with the decisions regarding the 

reconfiguration of the racks after the incidents involving Mr. BB and Mr. RP. (Tr. 519). Mr. Billet 

was not involved with the decisions regarding adding guards or not adding guards to the Raymond 

forklifts. (Tr. 519, 521-523). 

After a year and a half as Director of the Capacity Organization, around July 2019, Mr. 

Billet was promoted to Senior Director of Fulfillment Optimization, where he now oversees five 

43 At the time of the hearing, Mr. Rose was working as the Safety Director at Fidelity Manufacturing in 

Ocala, Florida. (Tr. 237). Prior to working at Chewy, Mr. Rose worked in the warehousing industry at 

C&S Wholesale, a division of the grocery retailer Winn-Dixie, for seven and a half years. (Tr. 238). Mr. 

Rose testified that he has about 15 years of experience in safety, but that before the July incident in this 

case, Mr. Rose had never heard of an under-ride hazard. (Tr. 239-240). 

44 Mr. Billet “started [his] career at Chewy” around December 2017 as Director of the Capacity 

Organization. (Tr. 476, 518). Prior to starting at Chewy, Mr. Billet spent about five years at Amazon where 

he was responsible “for quality and customer experience for North America for their final mile delivery.” 

(Tr. 477). Mr. Billet also worked as a “process expert” on the “fulfillment side” of Amazon. (Tr. 477). 

Prior to Amazon, Mr. Billet spent eight years at Williams Sonoma, where he “ran the global supply chain 

optimization team” and “running fulfillment operations for the organization for one of their buildings.” (Tr. 

477-478). Mr. Billet explained that “fulfillment” is the “e-commerce version of distribution where you are 

in the process of fulfilling the customer’s order. So, picking what was ordered, placing it in the box, and 

then shipping it to the customer.” (Tr. 478). Before Williams Sonoma, Mr. Billet spent three years as a 

Warehouse Operations Manager at Target, where 95 percent of his time was spent on the warehouse floor. 

(Tr. 478). 

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organizations within Chewy,45 including the capacity organization, described above, and the 

engineering organization. (Tr. 472.) The “engineering organization is responsible for the physical 

design and layout of all of [Chewy’s] facilities,” and includes equipment such as powered 

industrial trucks. (Tr. 472-474, 476). As Senior Director of Fulfillment Optimization, Mr. Billet’s 

responsibilities include the design and configuration of fulfillment center racks, and the evaluation 

of guarding on the reach trucks used in the fulfillment centers / warehouses, including use of the 

fourth post on the Raymond dock stance reach truck used at the Ocala warehouse. (Tr. 485, 488-

489, 519-520, 523-524, 537). 

As Senior Director, Mr. Billet has responsibility for the safety and stability of the storage 

rack systems at Chewy’s warehouses. (Tr. 532-533). Chewy contracts with a third party, Storage 

Solutions Incorporated (SSI), to design the racking structure itself. (Tr. 496-497, 532). As Senior 

Director, Mr. Billet ensures that the correct information is passed over to SSI. SSI “consider[s] 

the gauge of the upright, as well as the width of the load beam,” so that the rack system designed 

supports the overall weight of Chewy’s product, and so that the structure created “reduces the 

possibility of a catastrophic failure.” (Tr. 532-533.) Mr. Billet’s organization looks at “the 

interaction of that racking system with powered industrial trucks.” (Tr. 532-533). 

Mr. Billet has a bachelor’s degree in operations management.

46 Mr. Billet is not an 

engineer and has no expertise in safety outside of operations. (Tr. 496, 536, 577-578). He is not 

a safety expert. (Tr. 589-590). He has no certifications in powered industrial trucks. (Tr. 578). 

45 As Senior Director of Fulfillment Optimization, in addition to the capacity organization and the 

engineering organization, Mr. Billet also oversees the “fulfillment [center] optimization organization, the 

continuous improvement organization, and the WMSFC ops tech organization.” (Tr. 472, 474). The 

fulfillment center optimization organization is the “team of data scientists and analysts who leverage 

simulation software to simulate daily operations within our centers,” with the goal of “understanding overall 

flow within a facility” to help “build an efficient and safe operation.” (Tr. 474-475). The continuous 

improvement organization “owns the Lean principles” and their implementation within Chewy, and its 

“ultimate purpose is to eliminate waste in any one of our functions.” (Tr. 475). Finally, the WMS 

(warehouse management system) team “acts as a liaison between the operations team and understanding 

what the operational requirements are for [the software program that Chewy uses to run its facilities].” (Tr. 

475-476). 

46 Mr. Billet described “operations management” as “a focus in on how you effectively run an operation. It 

could be manufacturing; it could be distribution. You’re primarily looking at the flow, the processes. Very 

heavily geared towards statistical controls and how to just keep balance and flow and keep the operation 

running smoothly.” (Tr. 479). 

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Mr. Billet is not an expert in the ANSI Standard related to the Raymond lift truck at the Ocala 

warehouse. (Tr. 580). 

Caleb Prater is the current Director of Safety and Loss Prevention for Chewy. (Tr. 611-

612, 680). Mr. Prater began working with Chewy on October 3, 2018, shortly before the December 

incident involving Mr. RP, but after the July 2018 incident involving Mr. BB.

47 (Tr. 666, 680). 

At the time of Mr. RP’s incident, Mr. Prater served as the Regional Safety and Loss Prevention 

Manager for the eastern half of the United States and reported to Mr. Gage. (Tr. 615-616, 633). 

Mr. Prater succeeded Mr. Gage as the Director of Safety and Loss Prevention in September 2019. 

(Tr. 616). The Chewy Ocala warehouse is Mr. Prater’s home office. (Tr. 703). 

As the current Director of Safety and Loss Prevention, Mr. Prater oversees all Chewy’s 

safety and loss programs. (Tr. 615). He testified that his responsibilities are: 

to construct safety policy protocol, ensure that they’re enforced throughout the 

fulfillment network[,] maintain responsibilities over loss prevention, which is 

essentially inventory loss control and physical security of the fulfillment centers[, 

and] oversee workers’ compensation organizations and food safety organizations. 

(Tr. 612). With regard to workplace incidents, Mr. Prater testified that he was responsible for 

evaluating: 

the propensities for them to occur, to proactively adjust game plan for those, to 

mitigate or eliminate hazards wherever possible. Reactively, once an issue has 

taken place, to investigate physical circumstances, identify possible root causes and 

apply corrective actions wherever necessary to prevent recurrence. 

(Tr. 612). 

Significantly, Mr. Prater also has responsibilities regarding the selection of equipment used 

at Chewy’s fulfillment centers, as well as regarding the design of Chewy’s facilities. (Tr. 613-

47 Prior to working for Chewy, Mr. Prater was an Environmental Health and Safety Manager at Amazon 

for four and a half years. (Tr. 629). Mr. Prater’s responsibilities at Amazon included creating, 

implementing, and ensuring adherence to safety protocols, and establishing a culture of safety within the 

fulfillment centers. He managed safety specialists who were direct reports. He agreed that “Amazon’s 

operation” was similar to Chewy’s operations, in terms of fulfillment centers. (Tr. 629-630). Before 

working at Amazon, Mr. Prater was responsible for implementing safety protocol at a manufacturing 

warehouse environment utilizing powered industrial trucks at a solar sail manufacturer, and prior to that he 

worked at a New York based environmental health and safety consulting firm. (Tr. 630-631). 

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614). Mr. Prater testified that proposed equipment and rack designs pass through his safety review. 

Regarding equipment, Mr. Prater testified: 

Once the design and engineering team brings forth specific solutions that they’ve 

identified for their fulfillment operations, my organization would be responsible for 

reviewing those particular pieces of equipment in context of the operating 

environment, to ensure we can do so safely. 

(Tr. 613-614). Mr. Prater’s responsibilities include evaluation of potential reach truck guards 

offered by manufacturers. (Tr. 668-669). Regarding the design of Chewy’s facilities, Mr. Prater 

testified: “once a design has been completed, I am part of the review process to ensure that no 

identified hazards make their way to the launch of such a design.” (Tr. 614, 722. See Tr. 489). 

Mr. Prater testified that he reviews the storage rack design, including review of the computer 

assisted design drawing, the virtual layout, the selected vendors, and “any documents that [the 

vendors] set forth as pertaining to the relevance of the safety of the fulfillment environment.” (Tr. 

614-615). 

Mr. Prater has a bachelor’s degree in biology, and no certifications “in terms of the industry 

standpoint that [are] substantial.” (Tr. 631-632). 

Expert Witness Testimony 

The Secretary presented expert testimony from Guy Snowdy, director of training and 

development, and owner, of MHS Training Corporation.

48 (Tr. 298). Based on his long industry 

experience and specialized knowledge regarding the safe operation of powered industrial trucks 

and material handling in a warehouse or distribution system, Mr. Snowdy was qualified as an 

expert witness.

49 (Tr. 331-333, 338-339; Ex. C-1, at 13-14). Mr. Snowdy was qualified as an 

expert with respect to material handling equipment, including the powered industrial truck, the 

48 The company, started in 1991, provides training on lifts and cranes and material handling equipment to 

organizations like manufacturers, distributors, and construction companies. (Tr. 298-299). Mr. Snowdy 

has continuously run the company, in various different business forms, since 1991. (Tr. 299). 

49 Mr. Snowdy does not hold a college degree and is not an engineer. (Tr. 323-324). Prior to reaching 

opinions in this case and preparation of his expert report, Mr. Snowdy reviewed the entire OSHA 

investigative file, including the measurements and photographs taken by the CSHO, the OSHA report, and 

Chewy’s accident reports. (Tr. 317-318, 332, 327). He did not visit Chewy’s Ocala warehouse, nor did he 

interview any Chewy employees in preparing his report. (Tr. 324-325). 

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reach truck that is at issue in this case. (Tr. 333). He was also qualified as an expert with respect 

to the general storage systems regarding material handling in a warehouse or in a distribution 

system; however, Mr. Snowdy was not qualified as an expert with respect to Chewy’s inventory 

needs in terms of its racking system. (Tr. 332-333). Mr. Snowdy was also qualified as an expert 

witness with respect to the safe operation of powered industrial trucks. (Tr. 333). 

Mr. Snowdy testified that he trains about 6,000-7,000 operators and operator trainers for 

multiple different employers a year. (Tr. 306-308). He is qualified to train operators on all seven 

classes of powered industrial trucks. (Tr. 306). His operator training absolutely addresses the 

under-ride hazard. (Tr. 433-434). When providing his services to clients, Mr. Snowdy’s primary 

concern is safety. (Tr. 305). He testified that he works with warehousing manufacturers “probably 

70, 75 precent of what I do every day,” all of which use lift trucks. (Tr. 300-302). Mr. Snowdy 

testified that the specific lift truck at issue in this case, the “Raymond” is “a very dominant brand 

in the industry.” He testified that he “train[s] out a Raymond lift truck at least several times a 

week.” (Tr. 302). Mr. Snowdy also develops safety programs for clients, including thousands of 

fork truck varied programs from very simple to very complex. (Tr. 303). 

Mr. Snowdy also evaluates warehouse facilities and identifies the equipment that is being 

used in the warehouse facility to detect specific hazards for that warehouse employer. (Tr. 302). 

He considers current damage at the facility such as product damage, rack damage, facility damage, 

and pedestrian incidents, when evaluating solutions that the warehouse could implement to solve 

their safety issues. (Tr. 302-303). Mr. Snowdy provides incident investigations and root cause 

analyses for PIT incidents. (Tr. 309). He testified that he has investigated about fifty to sixty 

under-ride incidents, about seven or eight of which were fatalities.50 (Tr. 310, 462). 

50 Mr. Snowdy testified that: 

it would be hard pressed to find anyone in the United States that has assessed this particular 

issue [under-ride hazard] more than I have and have trained more people on abating those 

hazards than I have. Because I’ve been running the industry for 35 years, and that’s all 

I’ve ever done. I’ve always focused in on material handling equipment. That’s my 

specialty. 

(Tr. 319). 

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Mr. Snowdy’s testimony, based on his long industry experience and specialized knowledge 

regarding the safe operation of powered industrial trucks and material handling in a warehouse or 

distribution system, was helpful in understanding the evidence and making fact determinations. 

Fed. R. Evid. 702 (“A witness qualified as an expert witness by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise, if . . . the expert’s . . . 

specialized knowledge will help the trier of fact to understand the evidence or to determine a fact 

in issue . . . . “). Mr. Snowdy’s expert testimony was credible and persuasive. 

Respondent did not identify or qualify an expert witness in this proceeding. (Tr. 494-495). 

Worksite Training Stipulation 

With regard to safety training, Mr. Prater testified that he was responsible for constructing 

and administering the training “for whatever job task is being conducted by the employee.” (Tr. 

613, 687). He is also the custodian of records for that training. (Tr. 613, 687). He testified that 

he is responsible to ensure employees are properly trained in the use and operation of PITs, “to 

ensure the work environment is free of identified hazards, and to ensure that appropriate and safe 

operation occurs in fulfillment centers, and that corrective actions are applied wherever 

necessary.” (Tr. 613). With regard to operating the Raymond forklift at its Ocala facility, Mr. 

Prater testified that Chewy mandates its workers to always look in the direction of travel, and to 

always keep the forklift under control. (Tr. 681-682, 687). 

Chewy’s safety program and work rules are not in this record. Similarly, no written 

documentation or testimony regarding work rule discipline is in this record. At the hearing, the 

Secretary stipulated to the following: “Through its investigation, OSHA found no violation, and 

cited no violation of [29 C.F.R. § 1910.178(l)51].” The Secretary agreed, “that stipulation does not 

address whether or not Chewy’s training included the under-ride hazard,” and clarified that the 

stipulation was “nothing broader than [the stipulated statement]. There was no violation of that 

standard found by OSHA . . . or cited by OSHA.” (Tr. 553-554. See Tr. 469-470). 

DISCUSSION 

51 Section 1910.178(l) addresses “Operator Training” for powered industrial trucks. 29 C.F.R 

§ 1910.178(l). 

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What is an Under-Ride Hazard? 

Grammatically, throughout this proceeding, the parties describe the term “under-ride” in 

both noun and verb forms. For example, in the alleged violation description within the amended 

citation, the Secretary describes the under-ride hazard in this case in verb form: 

The horizontal beams of the worksite’s she lving units were at a height that could 

enter the operator’s compartment of the Raymond brand 7000 series stand-up lift 

truck (“lift truck”) and strike and/or crush the operator inside the compartment, 

should the lift truck under-ride a shelving unit. 

(Sec’y Br. 17; First Am. Compl. 3) (emphasis added). The Secretary also points to the description 

in OSHA’s SHIB, which uses a noun form: 

a forklift ‘under-ride’ hazard arises when the forklift operator travels with the forks 

trailing and backs up toward the storage rack. If the operator drives the forklift too 

far, so that the forklift passes beneath the horizontal crossbar (i.e., the operator 

creates an ‘under-ride’), the crossbar can enter the operator’s compartment and 

crush the operator inside the compartment. 

(Ex. C-2, at 2) (emphasis added). See (Sec’y Br. 17). 

Respondent also uses the term “under-ride” in both noun and verb sense: “[i]n this phase 

of the operators’ training, the hazards of striking the rack, including the under-ride, are addressed 

to ensure the operators are competent and capable of operating safely in their environment without 

supervision,” and “[a]ll of OSHA’s proposed methods of abatement rely on the operator striking 

the rack to avoid under-riding the horizontal beam.” (See, e.g., Resp’t Br. 12, 14) (emphasis 

added). 

What is apparent from the record is that the term “under-ride” involves the act of the forklift 

traveling beneath the lowest horizontal beam. The “under-ride hazard” exists when the operator 

has no protection against that horizontal beam striking him/her while the forklift travels beneath 

it. The operative trigger for the under-ride hazard is the ability of the forklift to travel beneath the 

lowest horizontal beam of the storage rack. The facts of this case are analyzed accordingly. 

Preemption 

Respondent claims at the outset that a citation to the general duty clause was inappropriate 

here because the PIT standards at 29 C.F.R. § 1910.178 apply instead to an under-ride hazard. 

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(Resp’t Br. 24-35). “Under Commission precedent, preemption by a more specifically applicable 

standard is an affirmative defense which the respondent must raise in its answer.” Spirit AeroSys., 

Inc., 25 BNA OSHC 1093, 1097 n.7 (No. 10-1697, 2014) (citations omitted). In its Answer, 

Respondent claimed, 

In regard to Citation 1, Item 1, citing the General Duty Clause is not proper because 

a specific OSHA standard already applies to the cited hazard. 29 CFR 

1910.178(n)(6) requires the operator to look in the direction of travel and 29 CFR 

178(n)(15) requires the operator to negotiate turns at a safe speed. Compliance with 

these specific standards would effectively abate the struck-by and crushing hazards 

referenced in the Citation. 

(Resp’t First Am. Answer, 3 ¶ 12). 

Respondent maintains in its post-hearing brief that the standards at 29 C.F.R. § 1910.178 

preempt the general duty clause in this case. (Resp’t Br. 25.) Respondent claims that “OSHA has 

a specific standard governing [PITs] which specifically addresses the hazard of striking structures 

like storage racks, including the under-ride hazard, while operating a PIT.” (Resp’t Br. 24.) 

When analyzing preemption, 

[t]he Commission has held that an applicable standard preempts application of the 

general duty clause. (citations omitted). In order for a specific standard 

to preempt the general duty clause, however, the standard must be addressed to the 

particular hazard for which the employer has been cited under the general duty 

clause. United States Pipe and Foundry Co., 6 BNA OSHC 1332 (No. 11739, 

1978). 

Armstrong Cork Co., 8 BNA OSHC 1070, 1073 (No. 76-2777, 1980), aff’d, 636 F.2d 1207 (3d 

Cir. 1980) (citations omitted) (Armstrong). 

The particular hazard in this case is the instance when the forklift travels beneath (i.e., 

under-rides) a horizontal rack beam and the worker is unprotected from that beam striking him/her 

as the forklift travels beneath it. Respondent argues that the training standards at section 1910.178 

– requiring operators to “look in the direction of travel,” and “maintain control” of the forklift – 

specifically address this particular hazard. (Resp’t Br. 24.) To the contrary, these training 

standards do NOT address what happens in the event of an under-ride. Instead, the training 

standards are geared toward preventing the under-ride; but as the facts of this case show, underrides occur despite operator training. 

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52 

Respondent also argues that the “Safety Guards” standards at section 1910.178(e) 

specifically address what guarding is required on reach trucks and Respondent claims that CSHO 

Driscoll “admits” this. Careful review of CSHO Driscoll’s testimony cited by Respondent reveals 

nothing more than a regurgitation of the standard. 52 (Resp’t Br. 24-27 citing Tr. 122-123). Legal 

conclusions by an OSHA compliance officer do not bind the Secretary or the Commission. See 

Kasper Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123, 1128 (D.C. Cir. 2001) (noting “the 

Commission is not bound by the representations or interpretations of Compliance Officers” 

quoting L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir.1982)); Nat’l Realty 

& Constr. Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973) (Nat’l Realty) (the Secretary is 

not bound by the “narrow construction of citations issued by his inspectors,” which include 

compliance officers who are not legal professionals). Furthermore, section 1910.178(e)(1) 

addresses an overhead guard, and section 1910.178(e)(2) addresses a load guard, neither of which 

are a vertical post or an extended backrest. 29 C.F.R. §§ 1910.178(e)(1), (2); (Tr. 122-123). Neither 

guard mentioned in section 1910.178(e) specifically addresses the particular under-ride hazard for 

which the employer has been cited under the general duty clause in this case. Armstrong, 8 BNA 

OSHC at 1073. 

Respondent also seems to claim that because section 1910.178(e) – “Safety Guards” – does 

not mention the guarding included in the proposed abatement measures for this citation item, that 

OSHA never intended for the under-ride hazard to be addressed and therefore the general duty 

clause cannot apply in this case. (Resp’t Br. 27) (“This is significant because OSHA identifies 

guarding as a proposed means of abatement to support its General Duty Clause citation.”). The 

Q [Mr. Harrington] Okay. Mr. Driscoll, I want to go through this in order, but I'm going 

to take you down to 1910.178(e) and I'm going to do that as quickly as I can. All right. Are you 

familiar with this part of 1910.178? 

A [CSHO Driscoll] Yes, sir, I am. 

Q What does this section address? 

A 1910.178, sub letter (e) says, "Safety guards." 

Q All right. And you tell me if I'm wrong, but in this standard OSHA requires certain safety 

guards to be installed on reach trucks; is that correct? 

A Correct, sir, sub numbers 1 and 2. 

Q All right. And it looks like OSHA requires here under sub number 1 an overhead guard 

and in number 2, a load backrest; is that correct? 

A Correct, sir. 

Q OSHA does not require a vertical post or an extended backrest; is that correct? 

A In this subsection here, no, sir. Yes, that is correct. 

(Tr. 122-123). 

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undersigned judge rejects this line of argument as it is inconsistent with the purpose of the Act to 

provide a safe working environment. Additionally, the Secretary does not “require” specific reach 

truck guarding. Rather, the Secretary proposes reach truck guarding methods as a feasible means 

to materially reduce or eliminate the under-ride hazard, among other feasible abatement methods 

that do not involve truck guards. Further, this line of argument fails under the preemption test 

because, as the Secretary points out, section 1910.178 are general standards and do not specifically 

address the struck-by hazard posed to the operator of a forklift that underrides a rack beam. (Sec’y 

Br. 16-17); Armstrong, 8 BNA OSHC at 1073. 

Respondent next argues that the preamble to section 1910.178(l) “demonstrates” that this 

standard “is intended to replace use of the General Duty Clause.” (Resp’t Br. 28.) Respondent 

claims that “[t]he hazard of running into a structure, such as the horizontal beam on a storage rack, 

while operating a PIT was previously addressed under the General Duty Clause until the specific 

standard for [PITs] was revised to abate this hazard through operator training.” (Resp’t Br. 28) 

(emphasis in original). Respondent also claims that the SHIB states that section 1910.178 

specifically addresses the under-ride hazard in this case. (Resp’t Br. 30-31). The Secretary argues 

that “this is a misunderstanding of the under-ride hazard at issue in this case, which is specific to 

the hazard posed when the body of the lift truck is able to ride under the racking beam, causing 

the horizontal beam to enter the operator’s compartment and crush the operator.” (Sec’y Br. 15) 

(emphasis added). The undersigned agrees with the Secretary. 

Respondent’s preemption arguments do not address the Secretary’s definition of the hazard 

in the event of an under-ride; instead, Respondent attempts to reframe the issue in terms of 

preventing an under-ride. Indeed, Respondent cites to Alabama Power Co., 13 BNA OSHC 1240, 

1244 (No. 84-0357, 1987) (Alabama Power) in support of its preemption argument. (Resp’t Br. 

31-33). Alabama Power, however, is not a preemption case – it is a feasibility of abatement case. 

Id. (“There is no dispute that employees who come too close to trucks dumping coal at the coal 

pile are exposed to the hazard of being struck by an overturning truck, a hazard likely to cause 

serious physical harm or death.). Respondent’s arguments regarding preventing an under-ride do 

not bear on this preemption analysis; instead, they are appropriately addressed below in the 

discussion of feasibility of abatement in this Decision. 

Similarly, the preemption line of cases that Respondent relies on are not helpful to its 

argument. (Resp’t Br. 25, 35-38, citing John T. Brady & Co., 10 BNA OSHC 1385 (No. 76-2894, 

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1982); Daniel Int’l, Inc., 10 BNA OSHC 1556 (No. 78-4279, 1982); A. Prokosch & Sons Sheet 

Metal, Inc., 8 BNA OSHC 2077 (Nos. 76-406 & 76-576, 1980); Sun Shipbuilding & Drydock Co., 

1 BNA OSHC 1381 (No. 161, 1973). In each of these cases, the Commission found that the 

particular hazard was addressed by a specific standard. In terms of analyzing preemption, this 

decision focuses on the particular hazard, as alleged by the Secretary, and whether an existing 

standard addresses that particular hazard. Armstrong, 8 BNA OSHC at 1073. The standards that 

Respondent points to, as well as its arguments, are general and do not specifically address the 

under-ride hazard in this case – when the lift-truck travels beneath a horizontal rack beam and the 

operator is unprotected from being struck by that beam while traveling on the lift truck. 

Both parties also address the recent administrative law judge decision in Pharmasol Corp., 

No. 16-1172, 2018 WL 5013447 (O.S.H.R.C.A.L.J., Sept. 4, 2018) (Pharmasol) that addressed an 

under-ride hazard. (Sec’y Br. 15-16; Resp’t Br. 34.). While this judge’s decision is not binding 

within the Commission,

53 the Pharmasol preemption analysis is persuasive to the undersigned 

regarding inadvertent under-rides, which training standards cannot by very definition address. In 

Pharmasol, the preemption defense was rejected because even adhering to section 1910.178, the 

under-ride hazard would still exist in the workplace due to inattention and inadvertence. 

Pharmasol, 2018 WL 5013447, at *6. Upon review, the undersigned reaches the same conclusion 

in this case. 

Here, the Secretary’s expert Mr. Snowdy testified that training alone will not fully protect 

an operator from the under-ride hazard. (Tr. 343-345, 378). Mr. Snowdy testified it is not possible 

to train an operator to never lose attention or to always operate perfectly. (Tr. 345). CSHO Driscoll 

and Safety Director Gage agreed that training alone would not eliminate the under-ride hazard 

from the worksite. (Tr. 144, 197-198). 

Respondent’s preemption argument is rejected. 

Serious Citation 1, Item 1 

The Secretary alleges that Respondent violated the general duty clause when: 

On or about December 16, 2018, employees were exposed to struck-by and/or 

crushing hazards. The horizontal beams of the worksite’s shelving units were at a 

53 Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) (An unreviewed administrative law 

judge decision is not binding precedent for the Commission.). 

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height that could enter the operator’s compartment of the Raymond brand 7000 

series stand-up lift truck (“lift truck”) and strike and/or crush the operator inside the 

compartment, should the lift truck under-ride a shelving unit. 

(First Am. Compl. 3). To prove this violation, the Secretary must establish that: (1) a condition or 

activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; 

(3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and 

effective means existed to eliminate or materially reduce the hazard. Arcadian Corp., 20 BNA 

OSHC 2001, 2007 (No. 93-0628, 2004) (Arcadian). The Secretary must also show that (5) the 

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

condition existed at its worksite. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-

0469, 1992) (consolidated). 

1) The Under-Ride Hazard at Chewy’s Ocala Warehouse 

“[The] hazard must be defined in a way that apprises the employer of its obligations, and 

identifies conditions and practices over which the employer can reasonably be expected to exercise 

control.” Arcadian, 20 BNA OSHC at 2007; Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-

388, 1986) (Pelron). To constitute a cognizable hazard under the general duty clause, a worksite 

condition must pose more than the mere possibility of harm. See, e.g., Pelron, 12 BNA OSHC at 

1835 (“Defining the hazard as the ‘possibility’ that a condition will occur defines not a hazard but 

a potential hazard.”); Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 64 (2d Cir. 1983) (“[T]he 

Secretary must show more than the mere possibility of injury; he must show that the potential 

hazard presents a significant risk of harm.”) 

On the day of the incident, the height of the bottom of the horizontal rack beam from the 

floor level was 53 and 7/8 inches. (Tr. 61; Ex. C-3, at 1). The height of the rear of the lift truck 

was 51 inches from the floor to the tip of the lift truck, and the height of the front of the lift was 

52 inches from the floor to the top of the lift truck compartment. (Tr. 61-62). The width of the 

lift truck, from the tip of the forks where the product is lifted to the rear of the compartment, was 

102 inches. (Tr. 62, 152-153). The width of the aisle was 127 inches from rack upright to rack 

upright on the other side. (Tr. 62). “To properly and safely lift product from the shelf on pallets, 

[the lift truck] needs to be a 90-degree perpendicular to the rack system.” (Tr. 62). The operator 

of the Raymond lift truck in Chewy’s Ocala warehouse in the non-inventory section had, at most, 

33 
 

 

 

 

 

 

 

 

 

 

 

 

 

25 inches of space to “properly and safely lift product from the shelf on pallets.” (Tr. 62-63). 

Based on these conditions, CSHO Driscoll stated that Chewy’s lift truck operators were exposed 

to a safety hazard of “a horizontal intrusion or roll-under of the operator’s compartment beneath 

the rack storage system.” (Tr. 63). The Secretary’s expert Mr. Snowdy also testified that the 

conditions present at Chewy’s Ocala warehouse presented an under-ride hazard. (Tr. 341-343). 

Respondent argues that its extra-wide aisles54 and operator training freed its Ocala 

workplace of the under-ride hazard, and that “the hazardous condition of striking the storage racks 

in this case was created by the operator’s reckless behavior.” (Resp’t Br. 38-40.) First, the record 

does not support the argument that either of the two Ocala under-ride incidents in this case, 

concerning Mr. BB or Mr. RP, was a result of reckless behavior. (Tr. 224-225). (“Mr. RP lost 

control for an unknown reason.” Tr. 759). Consequently, Chewy’s reliance is misplaced on the 

cases Alabama Power, 13 BNA OSHC at 1244, and Nat’l Realty, 489 F.2d at 1257. (Resp’t Br. 

38.) Second, the efficacy of Chewy’s work methods in avoiding injury, like its aisle width and 

training, “is a separate inquiry from whether an alleged hazard was present. In fact, that bears on 

feasibility of abatement[.]” Peacock Eng’g, Inc., No. 11-2780, 2017 WL 3864205, at *3 

(O.S.H.R.C. Apr. 27, 2017) (Peacock). 

Chewy forklift operators performed the job task at issue, pulling and retrieving pallets 

using a forklift from a pre-designed racking system, “30,000 times a day.” (Tr. 636-637, 640, 650-

651). Chewy had “a number of under-rides” during a two-year period, including one at WilkesBarre and the two in Ocala, in warehouses with “standard” aisle widths. (Tr. 212, 229). Chewy’s 

work methods show that Ocala warehouse employees regularly maneuvered Raymond forklifts in 

25-inch spaces. The height of a nearby horizontal member of a storage rack was such that the 

forklift operator was unprotected as the lift approached the beam. The Chewy forklift operator 

stands on the forklift, traveling with it, with no barrier between the operator and the horizontal 

beam. Upon striking the horizontal beam, both Mr. BB and Mr. RP sustained serious injuries. In 

Mr. RP’s case, the forklift’s automatic break (the deadman pedal) prevented movement of the 

forklift away from the horizontal beam when he was struck. (Tr. 221-222). 

54 As noted above, Chewy uses the term “extra-wide aisles” to indicate that its aisles are 12 inches wider 

than the minimum required by the Raymond lift truck manufacturer for safe operation of its lift trucks. (Tr. 

482-483, 504-506; Resp’t Br. 54-56; Sec’y Br. 23-24) 

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For these reasons, the Secretary has identified “the conditions and practices” within the 

Ocala warehouse that establish the existence of an under-ride hazard at the time of the relevant 

incidents in this case.

55 Arcadian, 20 BNA OSHC at 2007. 

2) Chewy and its Industry Recognized the Under-Ride Hazard 

Hazard recognition “may be shown by proof that ‘a hazard . . . is recognized as such by the 

employer’ or by ‘general understanding in the [employer’s] industry.’” Otis Elevator Co., 21 BNA 

OSHC 2204, 2207 (No. 03-1344, 2007) (quoting Kokosing Constr. Co., 17 BNA OSHC 1869, 

1873 (No. 92-2596, 1996)(Kokosing)); see Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 

321 (5th Cir. 1984) (Kelly-Springfield) (“Establishing that a hazard was recognized requires proof 

that the employer had actual knowledge that the condition was hazardous or proof that the 

condition is generally known to be hazardous in the industry.”). 

“That [the employer] took some [safety] measures . . . to protect against this hazard, 

demonstrates that the hazard was recognized within the meaning of Section 5(a)(1).” WheelingPittsburgh Steel Corp., 10 BNA OSHC 1242, 1246 (No. 76-4807, 1981) (consolidated) (WheelingPittsburgh); Waldon Healthcare Ctr., 16 BNA OSHC 1052, 1061 (No. 89- 3097, 1993) (Waldon) 

(employer recognition depends on whether the employer actually knew that conditions created the 

hazard); see also Mo. Basin Well Serv., Inc., No. 13-1817, 2018 WL 1309482, at *4 (O.S.H.R.C., 

March 1, 2018) (Mo. Basin) (supervisor’s recognition of hazard imputed to company); Coleco 

Indus., Inc., 14 BNA OSHC 1961, 1966 (No. 84-546, 1991) (Coleco) (hazard recognition 

established through actual knowledge of supervisor). 

The Secretary argues that employer recognition is established here by Mr. BB’s incident. 

(Sec’y Br. 18-20). Indeed, both Warehouse Safety Manager Rose and Safety Director Gage 

55 Chewy argues that the Secretary is “citing the abatement” to establish a hazard “instead of recognizing 

that Chewy abated the under-ride hazard through operator training and extra-wide aisles.” (Resp’t Br. 39-

40). The alleged violation description of the under-ride hazard does not contain any abatement measures 

within it. Mo. Basin Well Serv., Inc., No. 13-1817, 2018 WL 1309482, at *2 (O.S.H.R.C., March 1, 

2018) (rejecting employer’s claim that the Secretary improperly defined the hazard by holding that the 

hazard allegation itself did not specify an abatement method). 

Chewy also argues that the “Secretary mischaracterizes the nature of the alleged under-ride hazard 

... [by alleging] that Chewy’s operator was exposed to being ‘stuck-by’ the stationary storage rack, as if 

the stationary rack was somehow responsible for striking the operator.” (Resp’t Br. 40-42.) This argument 

is rejected as it does not address the Secretary’s definition of the hazard as set forth in the citation and 

analyzed in this Decision. 

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investigated Mr. BB’s incident and were responsible for investigating Mr. RP’s incident five 

months later. (Tr. 169-170, 192-193, 241-242, 254). Mr. Gage’s testimony is also particularly 

enlightening here. Before he began working at Chewy as the Director of Safety and Loss 

Prevention, he previously experienced incidents involving under-rides at Amazon – “one or two 

instances of that where we had somebody injured.” (Tr. 165-166). Mr. Gage also testified that 

“we had had a number of under-rides at Chewy[.]” (Tr. 212). One incident, in Wilkes-Barre, 

Pennsylvania, where the operator slid on a wet floor “did under-ride,” was severe enough that “a 

GM critical” was written on it and, as found above, also occurred prior to Mr. RP’s December 

under-ride incident. (Tr. 194, 212-213). These prior incidents establish recognition of the underride hazard at its warehouse worksite on the part of Chewy’s supervisors and recognition is 

properly imputed to Chewy. Mo. Basin, 2018 WL 1309482, at *4; Coleco, 14 BNA OSHC at 

1966. 

Respondent argues that “Chewy did not recognize the existence of a struck-by hazardous 

condition because [the] configuration of the storage rack did not create a struck-by hazard.” 

(Resp’t Br. 43). Respondent also argues that “Chewy abated the under-ride hazard in the particular 

circumstances at its worksite by properly training its operators pursuant to OSHA standard 

1910.178, by designing its storage racks with extra wide aisles, and by promptly addressing and 

eliminating any hazards that cause operators to lose control.” (Resp’t Br. 43). As noted above, 

Respondent’s arguments here do not address the under-ride hazard as alleged by the Secretary: the 

instance when the forklift travels beneath (i.e., under-rides) a horizontal rack beam and the worker 

is unprotected from that beam striking him/her as the forklift travels beneath it. 

Additionally, as Chewy’s preferred safety measures against the under-ride hazard, 

Respondent’s training and “extra-wide” aisles support a finding of employer recognition of the 

hazard. Wheeling-Pittsburgh, 10 BNA OSHC at 1246. Furthermore, the undersigned rejects 

Respondent’s argument that the under-ride hazard was “abated” whenever Chewy promptly 

addressed and eliminated “any hazards that cause operators to lose control.”56 (Resp’t Br. 43). 

56 Respondent’s accident investigation of Mr. BB’s July under-ride incident revealed two root causes, the 

radio cord that interfered with the operator’s reach truck control and the height of the non-inventory racking 

in relation to the height of the reach truck operator’s compartment. (Ex. J-1, at 2-3). Following Mr. BB’s 

incident, Respondent revised its operator instructions regarding how the radio cord must be worn. (Ex. R8). The under-ride hazard presented by the rack height and the height of the unprotected reach truck 

36 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The problem with this post-incident solution argument is that it is contrary to the purpose of the 

OSH Act. Mineral Indus. & Heavy Constr. Grp. v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981) 

(“[t]he goal of the Act is to prevent the first accident, not to serve as a source of consolation for 

the first victim or his survivors.”). 

Similarly, the record also supports a finding that Chewy’s industry recognizes the underride hazard. The Secretary’s expert witness Mr. Snowdy testified that the under-ride hazard, 

specifically that which was established by the conditions in Chewy’s Ocala warehouse, is 

recognized in the warehouse industry. (Tr. 309, 341-342, 348, 352, 373-374); Kelly Springfield, 

729 F.2d at 322 (“The [industry] recognition standard centers on ‘the common knowledge of safety 

experts who are familiar with the circumstances of the industry or activity in question.’” (citation 

omitted)). Mr. Snowdy’s testimony that the under-ride hazard is recognized in the warehouse 

industry is based on his long experience and his specialized knowledge regarding the operation of 

powered industrial trucks and material handling in the warehouse industry. For many years, Mr. 

Snowdy’s work included evaluating warehouse facilities, identifying hazards, conducting incident 

investigations, and root cause analysis following PIT incidents. For the past decade or two, Mr. 

Snowdy has performed root cause investigations regarding fifty to sixty under-ride incidents, and 

seven or eight under-ride fatalities. (Tr. 302-303, 309-310, 319, 348-349, 374, 403-404). 

Also, Mr. Snowdy testified that ANSI Standard 7.30 Operator Protection for Stand-Up, 

End Controlled, Narrow Aisle and Counterbalanced Truck, has included “guidance” regarding the 

under-ride hazard for many years, since 2000.

57 (Tr. 348, 351-353, 411-418, 447-449, 462; Ex. 

operator compartment remained unabated. Consequently, Mr. RP’s fatal under-ride incident occurred in 

December five months later. (Tr. 375-376). 

57 ANSI/ITSDF B56.1-2009, and ANSI/ITSDF B56.1-2012, Section 7.30 Operator Protection for StandUp, End Controlled, Narrow Aisle and Counterbalanced Trucks, states, in part: 

7.30.1 Guards or other means may be provided as part of the truck to limit intrusions into 

the operator’s area of horizontal members (e.g., rack beams), oriented generally transverse 

to the direction of travel. 

(Ex. C-1, at 9-10; Tr. 351-353, 411-418). 

Section 4.5 Safety Guards 

4.5.3. Operator Compartment Guards. For stand up, end controlled, narrow aisle trucks, 

more or less guarding than specified by paras. 7.30 and 7.36 may be required to enhance 

safe operation. Changes shall be determined through cooperation between the user and 

manufacturer. 

(Ex. C-1, at 6; Tr. 416-418). 

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C-1; at 5-12, ANSI/ITSDF B56.1-2009, and ANSI/ITSDF B56.1-2012). In his work with clients, 

Mr. Snowdy referenced this ANSI standard and the under-ride hazard present when the horizontal 

load rail was above the height of the lift truck. (Tr. 352-353). 

Regarding industry recognition of the under-ride hazard, Mr. Snowdy also referenced the 

information in the Raymond Features Brochure,

58 the equipment manufacturer, regarding guarding 

fork trucks, proper equipment for the environment, and the potential for the power section of the 

lift truck to under ride the rack beam in some environments of use.

59 (Tr. 348, 353-354, 358-361, 

374; Ex. J-5, at 8). 

58 The Raymond Features Brochure states, in part: 

In some environments of use, the first level horizontal rack beams are higher than the top 

of the forklift power section and lower than the overhead guard. In such a situation, the 

potential exists for the power section to under ride the rack beam. This potential can be 

heightened when the truck is being maneuvered to right angle stack in an aisle with minimal 

clearance and/or when lower storage locations are empty. To avoid this situation, the 

customer should: 

• Alter the design of their warehouse by adding a floor level rack beam 

• Lower the first level rack beam to a point below the height of the top of the forklift 

power section 

• Add a rack beam at the level of the overhead guard. 

If the customer is unwilling or unable to alter the shelf heights, then equipping the truck 

with this feature may be considered. The posts or backrest are available to provide 

additional protection against incidental intrusions, which may occur in narrow aisles during 

right angle stacking or slow maneuvering. They will not provide protection against all 

intrusions into the operator’s compartment. For trucks using a universal stack-stance 

compartment, rear vertical posts are installed on each side of the operator’s compartment 

extending to the overhead guard. For trucks using a dockstance compartment, a rear 

vertical post is installed on the left side of the truck and an extended backrest is installed 

on the right side. 

APPLICATION CONSIDERATIONS: 

• Will increase turning radius for some models of trucks 

• Difficult to structure for drive-in racks 

• Creates additional hazards for drive-in racks and other narrow operations 

• Reduces visibility (operator, pedestrian, and efficiency concerns) 

• May be a nuisance to the operator 

• Increases pinch, sheer, crush, and contact points. 

(Tr. 353-354, 358-361; Ex. J-5, at 8). 

59 The Secretary has established employer recognition of the under-ride hazard by Chewy management 

testimony, and also industry recognition of under-ride hazards based on Mr. Snowdy’s testimony. That 

said, the undersigned notes, in the instant case, Respondent’s reliance on the Commission decision in K.E.R. 

Enters., Inc., No. 08-1225, 2013 WL 157682 (O.S.H.R.C., Jan. 9, 2013) (K.E.R.) to challenge the 

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The Secretary has established both employer and industry recognition of the under-ride 

hazard in this case. 

3) The Under-Ride Hazard Was Likely to Cause Death or Serious Harm 

The Secretary must show that Chewy’s employees were exposed to a hazard likely to cause 

death or serious physical harm. Arcadian, 20 BNA OSHC at 2010 (citing Morrison-Knudsen 

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993) (MorrisonKnudsen) (“hazard is likely to cause serious physical harm if the likely consequences of employee 

exposure would be serious physical harm”). “[T]he Commission has made clear [that] the 

criteri[on] ... [in this regard] is not the likelihood of an accident or injury, but whether, if an 

accident occurs, the results are likely to cause death or serious harm.” Waldon, 16 BNA OSHC at 

1060. 

Here, the tragic circumstances of Mr. RP’s incident on December 16, 2018, establishes that 

when Mr. RP’s Raymond forklift rode under the horizontal beam of the pre-designed storage rack, 

he was struck and pinned between the beam and the Raymond forklift. He suffered compression 

asphyxiation injuries, was crushed, and died. (Tr. 103). These facts establish that the under-ride 

hazard at Chewy’s Ocala warehouse was likely to cause death or serious harm. 

4) Feasible and Effective Means Existed to Eliminate or Materially Reduce the 

Hazard 

Secretary’s evidence establishing warehouse industry recognition of the under-ride hazard is misplaced. 

(Resp’t Br. 45-46; Sec’y Br. 21-22). In K.E.R., the Commission held that while manufacturer safety 

manuals and voluntary industry standards may be probative evidence to establish industry recognition, 

those materials are only probative if they “contain a safety warning or suggest a link between 

noncompliance and a safety hazard.” K.E.R., 2013 WL 157682, at *3-4. Mr. Snowdy’s credible expert 

testimony, however, in this case distinguishes the instant case from the facts before the Commission in 

K.E.R. As just discussed above, the Powered Industrial Trucks ANSI / ITSDF B56.1 standard and the 

Raymond Features Brochure support Mr. Snowdy’s testimony that the under-ride hazard is recognized in 

the warehouse industry. (Tr. 351-354, 358-361, 411-418.) Also, citing K.E.R., Respondent argues that the 

Secretary cannot rely on the OSHA Safety and Health Information Bulletin, Standup Forklift Under-ride 

Hazard (Ex. C-2, SHIB 07-27-2009). (Resp’t Br. 45.) Respondent’s argument in this regard is rejected 

because the very nature of the SHIB is to inform and warn about safety. K.E.R., 2013 WL 157682, at *3-

4. Further, the Secretary does not rely on the SHIB to establish industry recognition. (Sec’y Br. 21-22). 

39 
 

 

 

 

 

 

 

To establish the feasibility and efficacy of a proposed abatement measure, the Secretary 

must “demonstrate both that the measure[] [is] capable of being put into effect and that [it] would 

be effective in materially reducing the incidence of the hazard.” Arcadian, 20 BNA OSHC at 2011 

(citations omitted). The Secretary need only show that the abatement method would materially 

reduce the hazard, not that it would eliminate the hazard. Arcadian, 20 BNA OSHC at 2011 (citing 

Morrison-Knudsen, 16 BNA OSHC at 1122). Where an employer has undertaken measures to 

address the cited hazard, the Secretary, in establishing efficacy, must also show that such measures 

were inadequate. U.S. Postal Serv., 21 BNA OSHC 1767, 1773-74 (No. 04-0316, 2006). 

A) Chewy’s Methods Were Inadequate 

As a threshold matter, the undersigned finds that the Secretary has established that Chewy’s 

measures of addressing the hazard – extra wide aisles and training – were inadequate measures 

against the under-ride hazard at the Ocala warehouse. U.S. Postal Serv., 21 BNA OSHC at 1773-

74. The Secretary elicited the following testimony from Mr. Prater: 

Q [Ms. Chastain] So training and extra-wide aisles -- I agree those are both good 

things. And the training in particular was required by OSHA. But the training and 

the extra-wide aisles did not prevent Mr. BB from being crushed by the horizontal 

beam, did it? 

A [Mr. Prater] The training and extra wide aisles did not prevent the radio cord 

from going across his chest, if that's where -- what you're asking. I think it is, but -

- so the answer would -- no, it did not. 

Q And the training and the extra wide aisles did not prevent Mr. RP from underriding the rack and being crushed as well, did it? 

A Again, I think Mr. RP, some -- for some unknown reason, lost control of his 

truck, and struck the racks. 

Q Well, -- and his excellent training did not prevent that, did it? 

A In this case, Mr. RP lost control for an unknown reason. I -- I have no idea 

whether or not it was related or correlated in any way to the training. 

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(Tr. 758-759).60 Mr. Billet agreed that the width of Chewy’s aisles did not prevent Mr. BB’s or 

Mr. RP’s under-ride incidents. (Tr. 581). 

The training and the aisle width are geared toward preventing an under-ride from occurring. 

But the facts here show that Chewy experienced “a number” of under-rides despite training and 

the width of the aisles. In fact, Safety Director Gage testified that after the first Ocala under-ride 

incident, the training was updated to ensure that it included under-ride hazards. (Tr. 177). Indeed, 

Warehouse Safety Manager Rose testified that he had never even heard of an under-ride hazard 

before Mr. BB’s incident, and that he learned about it while investigating Mr. BB.’s incident. (Tr. 

239-240). Consequently, Mr. BB did not have such training before operating the forklift. And 

despite Mr. BB’s incident and subsequent actions by Chewy, Mr. RP experienced a fatal underride incident five months later. The updated training and the width of the aisles did not adequately 

address the under-ride hazard at the Ocala warehouse. 

The undersigned also accords great weight to Mr. Snowdy’s testimony that “absolutely” 

under-ride hazards can be completely eliminated through engineering controls. (Tr. 345-346, 378-

382, 457). Mr. Snowdy testified that training alone would not eliminate a properly trained reach 

truck operator from contacting the storage rack. “It could be overshooting the turn, it could be a 

slick floor, it could be some malfunction of the machine. All those things could cause the truck to 

veer into the rail.” (Tr. 436). As noted in Pharmasol, administrative fixes, such as training, do 

not eliminate the instance of an inadvertent under-ride situation. Pharmasol, 2018 WL 5013447, 

at *6. Safety Manager Gage testified that no matter what the “root cause” for each incident, why 

the operator ended up under the horizontal beam, a better process outcome would be to eliminate 

the hazard. He testified that recognizing the hierarchy of controls, it is best to look to engineering 

controls, administrative controls, things that can be done to “actually eliminate or mitigate the 

hazard,” rather than to look at behavior, training. (Tr. 197-198). 

Here, the record shows that instances of a wet floor, a radio cord, and an as yet unknown 

reason, caused a Chewy worker to lose control of his forklift, and then subsequently under-ride a 

rack beam in a Chewy warehouse. Mr. BB was seriously injured, and Mr. RP died, because of 

60 Mr. BB’s and Mr. RP’s training records are not in this record, although Mr. Prater testified that Mr. RP 

attended this training. (Tr. 689). No PIT training records, or PIT safety rules were offered into evidence 

by Chewy. 

41 
 

 

 

 

 

 

 

 

 

those incidents. The training and the width of Chewy’s aisles did not address the under-ride hazard 

in those instances. 

The undersigned finds that Chewy’s methods addressing the under-ride hazard in its Ocala 

warehouse were inadequate. U.S. Postal Serv., 21 BNA OSHC at 1773-74. 

B) Physical Feasibility 

The Secretary has the burden of “demonstrat[ing] both that the [proposed abatement] 

measures are capable of being put into effect and that they would be effective in materially 

reducing the incidence of the hazard.” Beverly Enters., Inc., 19 BNA OSHC 1161, 1190 (No. 91-

3344, 2000) (consolidated) (Beverly). “Feasible means of abatement are those regarded by 

conscientious experts in the industry as ones they would take into account in ‘prescribing a safety 

program.’” Id. at 1191 (quoting Nat’l Realty, 489 F.2d at 1266). An abatement method is feasible 

under section 5(a)(1) if the Secretary “demonstrate[s] both that the measure[] [is] capable of being 

put into effect and that [it] would be effective in materially reducing the incidence of the hazard.” 

Beverly, 19 BNA OSHC at 1190; see Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th 

Cir. 1979) (“It is the Secretary's burden to show that demonstrably feasible measures would 

materially reduce the likelihood that such injury as that which resulted from the cited hazard would 

have occurred.”). 

The Secretary introduced evidence of feasible and effective abatement measures that 

Chewy could have taken to address the under-ride hazard at the Ocala warehouse. In the citation, 

the Secretary listed the following abatement measures that Chewy could have implemented to 

address the hazard: 

• Adjust the shelf heights so that the body of the lift truck below the operator’s 

compartment will strike the rack in the event of contact, preventing underride from occurring; 

• Adjust the shelf heights so that the lift truck’s overhead guard will strike the 

rack in the event of contact, preventing under-ride from occurring; 

• Install a barrier, even with the outer edge of the storage rack (such as a curb 

or floor level shelf), so that the bottom of the lift truck will strike the curb 

or shelf in the event of contact, preventing an under-ride from occurring; 

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• Purchase, where appropriate, standup lift trucks that have corner posts, 

extended backrests, rear post guards, or other features to prevent an underrode from occurring; or 

• Install rear post guards or other equivalent protections that address the 

under-ride hazard on existing standup lift trucks. 

(First Am. Compl. 3). 

Mr. Snowdy testified that “absolutely” under-ride hazards can be completely eliminated 

through engineering controls. (Tr. 378-379, 457). Engineering controls that he recommends 

include “lowering the rails to the frame height, [adding] the extended backrest, [putting] a vertical 

post in, [lowering] the second-tier rail to the height of the overhear guard,61 [and putting] a bottom 

rail in on the base of the rack system[.]” (Tr. 457. See Tr. 351, 378, 455-456). Arcadian, 20 BNA 

OSHC at 2011 (“[F]easible means of abatement are established if ‘conscientious experts, familiar 

with the industry’ would prescribe those means and methods to eliminate or materially reduce the 

recognized hazard.”) (citations omitted). 

As noted above, Respondent lowered the horizontal racks within days of Mr. RP’s incident 

and outfitted its fleet of Raymond lift trucks with rear posts that effectively eliminated the underride hazard. (Tr. 225-226, 379-382, 441; Ex. J-4). According to the Secretary, the abatement 

measure of the installation of rear post guards on Chewy’s exiting standup lift trucks “completely 

eliminated the under-ride hazard for this lift in Respondent’s facilities.” (Sec’y Br. 9-10). Further, 

at new sites Chewy opened after Mr. RP’s incident, Chewy equipped these sites with universal 

stance lift trucks, which have two rear vertical posts installed to protect the operator from the 

under-ride hazard. (Tr. 233-234. See Ex. J-5, at 8). Mr. Snowdy testified that use of the universal 

stance lift truck addressed the under-ride hazard. (Tr. 357-358, 361-362, 380-381). The Secretary 

has carried the initial burden of establishing that feasible and effective abatement measures exist 

to address the under-ride hazard at the Ocala warehouse. CSA Equip. Co., No. 12-1287, 2019 WL 

1375918, at *8 (O.S.H.R.C., Mar. 19, 2019) (citations omitted) (“That these procedures were either 

previously used by [the employer], or are currently being used, is prima facie evidence that both 

procedures were capable of being put into effect at the time of the accident.”). 

61 Mr. Snowdy testified that while any one of the engineering controls listed would completely eliminate 

the under-ride hazard, when advising clients, he does not recommend the “overhead guard rail as a contact 

point,” as it is a “smaller picture to hit.” (Tr. 457-458). 

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The Secretary has the initial burden of proving: 

that an abatement method exists that would provide protection against the cited 

hazard. The burden then shifts to the employer to produce evidence showing or 

tending to show that use of the method or methods established by [the Secretary] 

will cause consequences so adverse as to render their use infeasible. 

Royal Logging, 7 BNA OSHC 1744, 1751 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981). 

If the proposed abatement “creates additional hazards rather than reducing or eliminating the 

alleged hazard, the citation must be vacated for failure to prove feasibility ....” Kokosing, 17 BNA 

OSHC at 1875 n.19. The record must show that: 

the safety benefits of the Secretary’s proposed abatement method significantly 

outweigh its disadvantages. See, e.g., Chevron Oil Co., 11 BNA OSHC 1329, 1334 

(No. 10799, 1983) (finding that “[t]he benefits afforded by the use of flotation 

devices greatly outweighs the harm that could be caused in the unlikely event that 

one of these devices were to hit an employee”). Compare Kokosing, 17 BNA OSHC 

at 1875 & n.19 (finding no material reduction where Secretary failed to rebut 

testimony that abatement method could cause additional hazards). 

ACME Energy Servs. dba Big Dog Drilling, No. 08-0088, 2012 WL 4358852, at *7 (O.S.H.R.C., 

Sept. 19, 2012). 

Respondent claims that all the proposed abatement methods “rely on the operator to strike 

the rack to avoid an under-ride.” (Resp’t Br. 2). Respondent argues that “each of OSHA’s 

proposed methods of abatement require the operator to strike the storage rack which is (1) not 

designed to withstand the impact of a reach truck, and is (2) recognized as being incredibly 

dangerous by all the witnesses.” (Resp’t Br. 60). Respondent claims that striking the rack could 

lead to a “catastrophic collapse” of the racking system, causing serious injury to workers in the 

vicinity, and that the proposed methods of abatement only increase the frequency of striking the 

rack. (Resp’t Br. 62-64). Respondent also argues that striking the rack “can create a number of 

other crushing, pinching, impalement and amputation hazards for [the] operator other than the 

under-ride hazard.”62 (Resp’t Br. 62-63). 

62 Very little weight is given to the “Crown Product Reference” regarding “Rear Posts for Stand-up Riders,” 

referenced by Respondent. (Ex. J-4, at 3). This Crown Stand-up Rider is not a lift truck used by Chewy at 

the Ocala warehouse. Also, this Crown Stand-up lift truck has an extended backrest to protect the operator’s 

compartment from the under-ride hazard, protective equipment not provided on the Raymond dock stance 

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Respondent sets forth evidence in the form of testimony from Senior Director of 

Fulfillment Optimization Billet and current Safety Director Prater that striking a rack, in any 

situation, is to be avoided and therefore, “Chewy instead relies on operator training and extra-wide 

aisles to abate the under-ride hazard.” (Resp’t Br. 61, 64). Mr. Billet testified that, since adding 

a post to the Raymond forklift after the December incident, “we determined that we have an 

increase [in] rack strike events.” (Tr. 520). As a result, Chewy is exploring a transition to a 

universal stance forklift for use at its warehouses.63 (Tr. 523-524, 593-594, 599-604. See Tr. 233-

234). Universal stock stance forklifts have two rear vertical posts installed, enclosing the 

operator’s compartment, and preventing under-ride incidents. (Tr. 159, 354-358, 593-994; Ex. J5, at 8). “We’re still in that evaluation phase as to what is the correct solution for us given our 

environment.” (Tr. 527, 593-594). 

Regarding striking the rack, Mr. Billet testified that, “we still believe that the width of our 

aisles is the best abatement we could have to prevent any operator from striking or coming in 

contact with the rack.” (Tr. 586. See Tr. 594). Mr. Billet testified he gets the information 

supporting the foundation of his safety analysis “in conversations that I have had with our safety 

organization,” specifically Caleb Prater. (Tr. 595, 604). 

Mr. Prater explained that “we interpreted the lowering of the beam as to introduce an 

increased likelihood of striking the cross members.” (Tr. 707). “At the end of the day,” according 

to Mr. Prater, he concluded that lowering the horizontal beam made it “more likely to cause a 

lift trucks used by Mr. BB and Mr. RP at the time of their under-ride incidents. (Tr. 425-431, 453-455, 

752, 754). 

In evaluating guards for Chewy’s stand-up lift trucks, Mr. Prater considered this Crown Product 

Reference, and the stated potential hazards created by addition of a fourth post on this Crown stand-up lift 

truck. (Tr. 660-666, 669-671, 752, 754). Mr. Prater’s testimony regarding potential hazards if a fourth post 

was installed on a Crown Stand-up Rider not used by Chewy is unhelpful. 

There is no evidence that the fourth post engineered by Raymond and installed on Chewy’s dock 

stance lift trucks following Mr. RP’s under-ride incident caused any employee to experience severe injury 

or death. Rather, since installation of the Raymond engineered fourth post, only less severe injuries like 

forehead lacerations were reported. (Ex. J-4, at 1, 4; Tr. 270-277, 766). 

63 Since being promoted to his current position as Senior Director of Fulfillment Optimization around July 

2019, Mr. Billet’s responsibilities now include evaluating guarding on the Raymond forklifts at Chewy’s 

fulfillment centers. (Tr. 519-520). Mr. Billet is not an engineer and has no expertise in safety outside of 

operations. (Tr. 496, 536, 577-578, 589-590, 602-604). 

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safety incident.” Id. He testified that even though lowering the beam prevents an under-ride event, 

“we’re trading, you know, one hazard for an equal or greater hazard. So, while again, in kind of 

context of the under-riding, perhaps it solves that problem, but it does so by introducing an equal 

or greater problem” because “it increases the likelihood of an operator striking [the] rack.” (Tr. 

708). 

Mr. Prater’s viewpoint is illustrated by his description of Mr. BB’s July 2018 under-ride 

incident. Mr. Prater testified that Mr. BB lost control of his lift truck because his radio wire 

entangled with his lift truck controls. The lift truck then veered into the horizontal beam, impacting 

Mr. BB. Therefore, according to Mr. Prater, the “root cause” of Mr. BB’s injury was the radio 

wire causing Mr. BB to lose control of his lift truck, and the “direct cause” of Mr. BB’s injury was 

his impact against the horizontal beam when Mr. BB’s out-of-control forklift veered into the 

horizontal beam.64 Mr. Prater testified, “if the radio cord hadn’t wrapped around his steering 

wheel, then [Mr. BB] would not have lost control.” (Tr. 724). Mr. Prater likened Mr. BB’s 

incident to the possibility of a wet floor causing the operator to slide out of the normal aisle of 

travel. “That would be the equivalent of a radio cord wrapping around your steering column and 

causing you to lose control. Yes. And I would address that root cause if that were to surface, of 

course.” (Tr. 725). The following testimony reveals how Mr. Prater approaches the potential of 

an under-ride hazard at Chewy’s warehouses: 

Q: [Ms. Chastain] You would get rid of the wet patch? 

A: [Mr. Prater] Sure. 

Q: You wouldn’t – you wouldn’t eliminate the under-ride hazard? 

A: It’s not a – it’s not a hazard. They’re not exposed to that. They are exposed to 

wet floor. So, it’s a root cause versus direct cause. 

Q: But what actually caused the injury was the horizontal beam crushing his ribs, 

correct? 

A: That’s not the appropriate way to look at it. The way that – the thing that 

caused the injury was the thing that caused the incident, which would have been 

64 In response to, “Did you see that the safety manager at the Ocala facility identified the height of the 

racking as one of the root causes of Mr. BB’s accident,” Chewy Senior Director Billet testified, “I did not 

see that he identified it as a root cause.” (Tr. 583). 

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the wet floor. So, if I left the wet floor and then lowered the beam, he would’ve 

just hit a beam, and we’d be in the same circumstances. So that’s why we focus 

on root cause, not direct cause. 

(Tr. 725-726). Mr. Prater further testified: 

I'm not contesting the fact that Mr. BB struck the beam and was injured. So, I want 

to be clear. I'm just saying that the cause of the injury is not that contact being made. 

The cause of the injury was the root cause -- or was -- the root cause of the injury 

was the cord that stole his ability to safely maneuver and operate his truck. Again, 

I think we can agree that, you know, that's what needs to be addressed. We need to 

make sure that all of our employees can maintain control of the truck, look in the 

direction of travel at all times and that goes back to the radio wire. It doesn't go 

back to hypothetical water on the floor. It doesn't go back to, you know, just losing 

control. You could hit a million different things once you lose control. 

(Tr. 727). 

Mr. Prater testified that OSHA’s viewpoint of the incidents in this case as an “under-ride 

hazard” was not appropriate because the “root cause” was either the radio cord or a “wet floor” or 

when “Mr. RP lost control for an unknown reason.” (Tr. 724-728, 759). Regarding OSHA’s 

proposed abatement methods of lowering the horizontal beam or adding guards around the 

operator’s compartment of the forklift, Mr. Prater testified that Chewy believes that “there is no 

safe way to strike a storage rack,” and that “there is no safe speed to strike a storage rack.” (Tr. 

760, 765). 

Despite having the burden of showing adverse consequences to the Secretary’s proposed 

abatement methods, Respondent did not introduce any evidence specific to its racking system – 

such as SSI engineering specifications, drawings, or even expert testimony – into this record. The 

undersigned is not persuaded by Mr. Billet’s and Mr. Prater’s unsupported testimony65 in the face 

of case facts that do not support their arguments. 

For example, according to Safety Director Gage, since Chewy lowered the horizontal beam 

in its warehouse, the incidents of rack strikes did increase. (Tr. 175-176, 211). However, Mr. 

65 Mr. Billet testified that he did not know how many incidents of striking the racks occurred before the 

guards were put on the PITs and how many incidents of striking the racks occurred now that there is a rear 

cabin guard on the PITs. (Tr. 587-589). Regarding how many times the operators struck the horizontal 

beam before and after it was lowered (i.e., whether there was a measurable increase in the number of strikes 

on the horizontal beams in non-inventory after the beams were lowered), Mr. Prater testified that he did not 

know “the exact figures off the top of my head.” (Tr. 739). 

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Gage noted that the operators were using the lowered beam as a “break,” in their maneuvering and 

that they had to be retrained to operate safely. (Tr. 212, 226-227). Mr. Gage testified that most of 

those rack strikes were noninjury related, or at least, not significant enough to warrant his attention. 

(Tr. 231). Warehouse Safety Manager Rose testified that injuries related to a worker striking a lifttruck post, included a worker who walked into the post after it was newly installed. That injury 

resulted in a forehead laceration. According to Mr. Rose, there were no fatalities associated with 

the increase in strikes due to the newly installed posts. (Tr. 270-272. See Tr. 766). 

The record also establishes that Chewy operators regularly drove their lift-trucks such that 

they damaged racking, to the extent that Chewy had spent over $100,000 to fix the racking in the 

Dallas warehouse.66 (Tr. 215, 227). Mr. Gage testified, “So impacting the storage racking, as a 

general rule, it’s not a good idea. It’s nowhere near as dangerous as the under-ride because it’s 

much less likely to cause a catastrophic failure, particularly [where] the racking is not overloaded, 

which ours were not.” (Tr. 214-215). Despite multiple strikes, even requiring rack repair by an 

outside contractor, Mr. Gage testified that Chewy has “never, never had a catastrophic rack 

failure.” (Tr. 215, 227). Mr. Billet also testified that Chewy has never had any catastrophic 

failures of its racking system. (Tr. 582). 

Mr. Snowdy testified, based on his experience in the warehouse industry, that the underride hazard is “by far” more serious than the potential limitations with visibility from the 

installation of a post on the forklift.67 (Tr. 359-361, 384, 453-454). Mr. Snowdy testified that the 

66 Mr. Gage testified that, in the two years he was at Chewy, “we had hundreds, if not more, rack impacts.” 

(Tr. 215). Mr. Gages testified that, for the Dallas warehouse, Chewy spent “well over $100,000 doing rack 

repair and that was all due to collisions. We would constantly find racking that had been damaged to such 

an [extent] that we would have to unload the entire bay all the way up and rope it off and take it out [of] 

inventory. Have never, never had a catastrophic rack failure.” (Tr. 215, 227). 

67 Respondent states, “[u]nlike striking the rack, Snowdy admits that abating the under-ride hazard through 

operator training and extra-wide aisle has no downside.” (Resp’t Br. 65-66, citing Tr. 407-408). The 

relevant testimony says no such thing: 

Q: [Mr. Harrington] Now, is there any downside to training operators to perform 

maneuvers safely between the racks? Is there a negative? 

A: [Mr. Snowdy] No. 

Q: Okay. Is there any downside to having extra wide aisles to minimize the risk of an 

operator striking the rack? 

A: No. 

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under-ride hazard is a greater hazard than a reach truck striking a rack “because the fork truck can 

take considerably more blunt force against a fixed object than a human body can.”68 (Tr. 461). 

Mr. Snowdy also testified that it is “unlikely” that the loads supported by a racking system would 

collapse due to a strike event “because of the ways systems are built nowadays.” (Tr. 391, 405.) 

Safety Manager Gage testified that the injuries that may be sustained by a reach truck operator 

under-riding the storage rack horizontal beam was greater, than the injury the reach truck operator 

may sustain from the reach truck hitting the storage rack. (Tr. 202, 215, 231-232). “The underride hazard is clearly the most significant hazard.” (Tr. 202). CSHO Driscoll testified that ANSI 

B56.1 Chapter 7, as referenced by the SHIB, recommends lowering the horizontal storage beam 

to prevent roll-unders. (Tr. 71, 73). 

With this evidence, the undersigned finds that the Secretary has shown that the benefits of 

the abatement measures implemented by Chewy to address the under-ride hazard at its Ocala 

warehouse significantly outweigh the less likely, and unsupported, claims of a catastrophic 

collapse of a pre-designed racking system in the Ocala warehouse and the less serious injuries 

resulting from an increase in strike events. Chevron Oil Co., 11 BNA OSHC 1329, 1334 (No. 

10799, 1983). The Secretary has established that the proposed methods of abatement are 

physically feasible and effective at addressing the under-ride hazard at the Ocala warehouse. 

C) Economic Feasibility 

The Secretary also has the burden to establish that the proposed abatement methods are 

economically feasible for the employer. 

(Tr. 407-408). Neither of the questions posed to Mr. Snowdy in this interaction mentions anything 

about an under-ride hazard. 

68 Respondent makes much of Mr. Snowdy agreeing that the lift-truck striking a storage rack at 1 mph is 

the equivalent of an automobile striking the rack at 60 mph. (Resp’t Br. 32, 63 citing Tr. 387). Respondent 

then claims that “on this issue, the Secretary offers no formal studies, engineering analysis, or other 

statistical evidence demonstrating that striking the rack with the force of an automobile traveling at 60 mph 

is a safe way to abate the under-ride hazard.” (Resp’t Br. 65). Respondent, however, has the burden of 

overcoming the Secretary’s prima facie showing. Here, Mr. Snowdy testified that, in his expert opinion, 

the greater hazard is the under-ride hazard. (Tr. 391, 405, 453-454). Respondent did not introduce drawings 

that its racking system could not handle rack strikes. The record, moreover, establishes that workers 

regularly strike the racking system, such that the racking systems have been repaired, and despite this, no 

further serious injuries or deaths have been reported. 

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One of the criteria for determining whether a proposed measure of abatement is 

feasible is whether the proposed measure is cost prohibitive. Under 

the general duty clause, an employer is not required to adopt measures that would 

threaten its economic viability. One issue to consider when determining whether 

abatement is economically feasible is whether the cost of compliance would 

jeopardize a company's long-term profitability and competitiveness. Another 

factor relevant to that consideration is whether the employer can pass the costs on 

to the customer. 

Waldon, 16 BNA OSHC at 1063 (citations and footnote omitted). 

The Secretary contends that given Chewy’s “size and sophistication,” Chewy cannot 

“credibly argue” that the cost of any of the abatement measures proposed by the Secretary would 

threaten Chewy’s “economic viability” or Chewy’s “long-term profitability and industry 

competitiveness.”69 Id. The record supports the Secretary’s contention that Chewy’s economic 

viability has not been threatened by the abatement measures the Secretary’s proposed which 

Chewy implemented. 

Respondent claims that the proposed abatement measure of lowering the horizontal load 

beam “threatens the long-term economic viability of Chewy which has been operating at a loss for 

several years.” (Resp’t Br. 74). In support of this argument, Mr. Billet agreed that “in the long 

69 At the Secretary’s request, Judicial Notice was taken of specific sections of the Chewy Q4 and Fiscal 

Year 2019 Letter to Shareholders, dated April 2, 2020. (Tr. 768-777, 468-469; Ex. C-15, at 4, 8 first two 

sections, and at 11) (2019 Letter to Shareholders). Respondent agrees this Shareholder Letter is authentic. 

(Tr. 287, 776). The Secretary represents this Shareholder Letter was part of Chewy’s SEC Report, filed 

with the Securities and Exchange Commission. (Tr. 770, 776). Respondent does not contest this 

representation. See Fed. R. Evid. 201. See generally, Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-

1281, 1287 (11th Cir. 1999) (When deciding a motion to dismiss a complaint alleging securities fraud, a 

court may judicially notice relevant documents required by and publicly filed with the SEC). 

The Secretary requests the Commission take judicial notice of publicly available information in 

Chewy’s 2019 Letter to Shareholders, stating Chewy’s “reported net sales of over $1.35 billion in the fourth 

quarter of 2019 alone, and net sales of $4.85 billion in total for fiscal year 2019.” (Sec’y Br., 30, citing Ex. 

C-15, at 4). Respondent, citing the 2019 Letter to Shareholders, sections entitled Net Loss and Adjusted 

EBITDA, contends Chewy has been operating at a financial loss for several years. (Resp’t Br. 55, ⁋ 55, n. 

77, 74, n. 379, notes citing Ex. C-15, at 8). (Tr. 768-777. See Tr. 285-297). 

In post hearing briefing, the parties again cite the specific sections of the 2019 Letter to 

Shareholders identified at the hearing, without further explanation of the financial statements. Generally, 

the 2019 Letter to Shareholders conveys Chewy’s financial position as positive. “We closed 2019 on a high 

note with strong momentum in both top line and bottom line results[.]” (Ex. C-15, at 4) Importantly, 

following the hearing testimony and admissions regarding Chewy’s economic viability, the 2019 Letter to 

Shareholders is unnecessary to resolution of the questions before the Commission in this case. Accordingly, 

Chewy’s 2019 Letter to Shareholders is accorded limited weight. (Ex. C-15). 

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run, potentially,” the capacity change, caused by lowering the non-inventory aisle height of the 

horizontal beam, clearly threatened the economic viability of Chewy. (Tr. 586). Mr. Billet also 

testified that, at the time the non-inventory horizontal beams were lowered, Chewy’s economic 

viability was not threatened by the capacity change. (Tr. 586). Further, Mr. Billet’s later testimony 

suggests that the inventory capacity reduction resulting from the lowered horizontal rack beams 

could be resolved in future construction plans, over a few years.70 (Tr. 591-592). 

Following Mr. RP’s under-ride incident Chewy also transitioned to equipping all its new 

warehouses with universal stance PITs, which come with enclosed operator’s compartments that 

prevent under-ride incidents. (Tr. 524-527, 529, 593-594). Furthermore, Mr. Gage testified that 

outfitting the fleet of Raymond dock stance reach trucks with the fourth post engineered by 

Raymond and Hyster would not threaten Chewy’s economic viability. (Tr. 203; Ex. J-4, at 5). Mr. 

Billet agreed that adding the rear cabin guards to the dock stance lift trucks used in Chewy’s 

warehouses did not threaten Chewy’s economic viability. (Tr. 588-589). And Mr. Prater 

confirmed that Chewy grew as a company in 2020, even after OSHA’s proposed abatement 

methods were implemented by Chewy. (Tr. 757-758). 

The citation proposes several feasible measures Chewy may adopt to abate the under-ride 

hazard in the non-inventory sections of its Ocala warehouse. Lowering the horizontal rack beam 

was one or several proposed feasible abatement measures. In fact, Chewy implemented two other 

abatement methods proposed by OSHA, adding a rear guard to its dock stance lift trucks, and 

deploying universal stance lift trucks when new warehouses opened. Respondent does not claim 

that the guarding abatement methods proposed by OSHA, and adopted by Chewy, impact Chewy’s 

inventory capacity or threaten Chewy’s economic viability. 

70 Mr. Billet’s later testimony. 

Q [Ms. Chastain] Since doing your analysis regarding the cost of adjusting shelving in your 

existing facilities, how many new facilities has Chewy built? 

A [Mr. Billet] Four. 

Q Would it have been economically infeasible to include an extra 75,000 square feet in one 

of those new facilities? 

A It would not have been possible for several years, given the design and the construction 

timelines that we are under. So sure, we could have two years down the road, but again, 

we still believe that maintaining our extra wide aisles is the best abatement measure to 

striking a rack. 

(Tr. 591-592) (emphasis added). 

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Based on the above, the Secretary has established economically feasible means of abating 

the Ocala warehouse under-ride hazard. SeaWorld of Fla. LLC v. Perez, 748 F.3d 1202, 

1215 (D.C. Cir. 2014) (Abatement of a hazard is economically "feasible” when it does not change 

the essential nature of employer's business.) 

5) Knowledge 

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

could have known of the hazardous condition...The proper inquiry here is whether [Chewy] was 

aware of the cited conditions its employees faced when [under-riding the rack].” Peacock, 2017 

WL 3864205, at *6 (citation omitted); St. Joe Minerals Corp., 647 F.2d 840 (8th Cir. 1981) (actual 

knowledge of a hazard may be gained by means of prior accidents, prior injuries, employee 

complaints, and warnings communicated to the employer by an employee.). 

Mr. BB’s under-ride incident in July 2018 happened five months prior to Mr. RP’s incident. 

Mr. BB’s incident showcased the conditions of the Ocala warehouse: the height of the lowest 

horizontal beam, the exposure of the operator while under-riding the Raymond lift truck, and the 

serious injuries that resulted when the operator’s lift truck rode under the horizontal beam. Joshua 

Rose and Craig Gage, both safety management officials at the time, participated in the 

investigation regarding that incident. (Tr. 169-170, 241-242). Both Mr. Rose and Mr. Gage were 

still in their safety management positions five months later at the time of Mr. RP’s incident, which 

involved the same conditions: the height of the lowest horizontal beam, the exposure of the 

operator while under-riding the Raymond lift truck, and the death that resulted when the operator’s 

lift truck rode under the horizontal beam. (Tr. 192-193, 254). 

Accordingly, both safety managers Mr. Rose and Mr. Gage knew of the violative 

conditions at the Ocala warehouse five months before Mr. RP’s incident. (Tr. 169-170, 192-193, 

241-242, 254). This knowledge is properly imputed to Chewy. Phoenix Roofing, Inc., 17 BNA 

OSHC 1076, 1079 (No. 90-2148, 1995) (“Employer knowledge is established by a showing of 

employer awareness of the physical conditions constituting the violation”), aff’d, 79 F.3d 1146 

(5th Cir. 1996) (unpublished); Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 

1999) (“[K]nowledge can be imputed to the cited employer through its supervisory employee.”); 

Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (knowledge is imputed 

to the employer “through its supervisory employee.” (citation omitted)). 

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Unpreventable Employee Misconduct Defense 

Respondent claims the unpreventable employee misconduct (UEM) defense. (Resp’t Br. 

87-88). To establish this affirmative defense, an employer has the burden to show that it “(1) has 

established work rules designed to prevent the violation; (2) has adequately communicated the 

rules to its employees; (3) has taken steps to discover violations of the rules; and (4) has effectively 

enforced the rules when violations were detected.” Rawson Contractors, Inc., 20 BNA OSHC 

1078, 1081 (No. 99-0018, 2003). “To prove adequate enforcement of its safety rule, an employer 

must present evidence of having a disciplinary program that was effectively administered when 

work rule violations occurred.” GEM Indus. Inc., No. 93-1122, 1996 WL 710982, at *3 

(O.S.H.R.C., Dec. 6, 1996), aff'd, 149 F.3d 1183 (6th Cir. 1998). 

Respondent argues that “had RP been looking in the direction of travel and operating his 

reach truck under control he would not have struck the horizontal beam of the storage rack.” 

(Resp’t Br. 87). Respondent relies on the “Secretary’s stipulation” that “RP was properly trained 

in these rules” to claim that it established each of the elements of the UEM defense. Id. The 

Secretary notes, however, that this stipulation “does not satisfy any of the elements of the [UEM] 

defense, which requires an affirmative showing that Respondent adequately communicated and 

enforced a specific work rule that would have addressed the under-ride hazard.” (Sec’y Br. 36 

n.12). 

Pointing to Mr. Snowdy’s testimony, the Secretary also persuasively argues that the 

training rules Chewy had did not address the under-ride hazard in this case: “a well-trained 

operator driving at a reasonable speed and looking in the direction of travel may – in a moment of 

inattention or distraction – under-ride a horizontal beam of a shelving unit; such an accident can 

occur in a split second.” (Sec’y Br. 34 citing Tr. 344-345). As CSHO Driscoll testified, “all the 

training in the world isn’t going to prevent you driving your forklift under a shelf.” (Tr. 144). 

Furthermore, there is zero evidence in this record regarding the disciplinary process with regard to 

enforcing any such work rule. Fla. Gas Contractors, Inc., 27 BNA OSHC 1799, 1801-02 (No. 

14-0948, 2019) (employer's failure to provide documentation supporting claimed instances 

of discipline was a factor weighing against a UEM defense). 

Respondent’s UEM argument is rejected. This citation item is affirmed. 

Characterization 

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With regard to characterization, this citation item is properly characterized as serious. 29 

U.S.C. § 666(k) (A violation is “serious” if a substantial probability of death or serious physical 

harm could have resulted from the violative condition). As a result of the violative under-ride 

condition at Chewy’s Ocala warehouse, Mr. RP was crushed and killed. This citation item is 

affirmed as serious. 

In Summary 

(1) Chewy did not affirmatively establish that more specific industry standards preempt the 

application of the general duty clause to the under-ride hazard in this case. (2) The Secretary 

established that an under-ride hazard, as defined by the Secretary, existed at the Ocala warehouse. 

(3) The Secretary established that Chewy and its industry recognized the under-ride hazard. (4) 

The Secretary met his prima facie burden of establishing feasible means to abate the under-ride 

hazard at the Ocala warehouse. (5) Chewy failed to overcome the Secretary’s prima facie showing 

that feasible means of abatement existed to address the under-ride hazard at the Ocala warehouse. 

(6) Chewy knew or with the exercise of reasonable diligence could have known of the under-ride 

hazard at the Ocala warehouse. This citation item is AFFIRMED. 

PENALTY 

“In assessing penalties, section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the 

Commission to give due consideration to the gravity of the violation and the employer’s size, 

history of violation, and good faith.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2142 (No. 04-

0475, 2007). “Gravity is a principal factor in the penalty determination and is based on the number 

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

injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005) 

(citation omitted). 

CSHO Driscoll testified how the penalty for the citation item was calculated and proposed 

for this matter. (Tr. 106-107). For Citation 1, Item 1, OSHA proposed a penalty of $13,260. (Tr. 

106; First Am. Compl. 3). This proposed penalty took into account the high gravity of the incident, 

given that it resulted in the permanent physical injury and/or death of an employee. (Tr. 107). 

CSHO Driscoll testified that OSHA ascribed a high severity to this particular citation based upon 

the injuries and the fatality, and a greater probability that the incident could occur and might occur 

54 
 

 

 

 

 

again, if not abated. No adjustment factors were applied to this particular penalty in the discretion 

of the area director “to prevent future [incidents] or actually to achieve compliance.” (Tr. 107). 

Respondent has not addressed the calculation of the amount of the proposed penalty in its 

brief. After consideration of the statutory factors with regard to the penalty for the affirmed 

violation, the undersigned agrees with the penalty amount proposed by the Secretary for this 

citation item. The proposed penalty amount is assessed in the amount of $13,260 for Citation 1, 

Item 1. 

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 above. 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 1, alleging a Serious violation of section 5(a)(1) of the OSH 

Act, 29 U.S.C. § 654(a)(1), is AFFIRMED and a penalty of $13,260 is 

ASSESSED. 

2) Citation 2, Item 1, alleging an Other-Than-Serious violation of 29 C.F.R. 

§ 1910.176(e), withdrawn by the Secretary on March 25, 2020, is 

VACATED. 

SO ORDERED. 

/s/ Carol A. Baumerich 

Carol A. Baumerich 

Judge, OSHRC 

DATE: February 22, 2022 

Washington, D.C. 

55