United States of America 

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC DOCKET No. 17-0419 

U.S. POSTAL SERVICE, d/b/a Lehigh 

Valley Processing & Distribution Center, 

Respondent. 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

AMERICAN POSTAL WORKERS UNION, 

AFL-CIO, 

Authorized Employee Representative. 

 

DECISION AND ORDER 

APPEARANCES: 

For the Complainant: 

Jennifer L. Bluer, Esq. 

U.S. Department of Labor 

Philadelphia, Pennsylvania 

For the Respondent: 

Mark J. Manta, Esq. 

United States Postal Service 

Philadelphia, Pennsylvania 

For the Authorized Employee Representative

Jason R. Veny, Esq. 

Murphy Anderson, PLLC 

Washington, D.C. 

BEFORE: William S. Coleman 

 Administrative Law Judge 
2 

I. INTRODUCTION 

The United States Postal Service (USPS) operates a mail processing facility in Lehigh 

Valley, Pennsylvania, called the “Lehigh Valley Processing & Distribution Center” (Center). A 

sprawling multi-component machine called an APPS (standing for “Automated Package 

Processing System”) occupies about 75% of the Center’s floorspace. (T. 25). 

On October 15, 2016, one of the many conveyor belts on the APPS broke and required 

repair. Employees doing the repairs were trained and experienced in controlling hazardous energy 

during such repairs by applying USPS’s APPS-specific procedures for the control of hazardous 

energy. 

The APPS is configured with multiple energy isolating devices (EIDs) that control 

electricity. USPS instructed employees performing the repair to lock out an EID that de-energized 

only the conveyor lane on which the broken conveyor belt was located. Doing this made it possible 

for all other components of the APPS to run and to process mail while repair work was ongoing. 

Under optimal circumstances the repair would have been completed in about six to twelve 

hours, but the repair was not completed until five days after the breakdown. (T. 96, 227, 247, 549). 

The repair effort was slowed mainly because of problems in getting necessary parts. But also 

complicating the repair effort was the resistance of some maintenance employees to management’s 

instruction to lock out an EID that enabled the APPS to continue to process mail during the repair. 

Those employees had expressed the view that USPS’s APPS-specific energy control procedures 

specified locking out a different EID—one that would have effectively rendered the APPS 

nonoperational during repair work. Management decided otherwise, and so the repair was 

completed by locking out the EID that management had directed. 

After the repair was completed, someone complained to the Occupational Safety and 

Health Administration (OSHA) about management’s instruction on the EID to lock out during the 
3 

repair. OSHA then conducted an inspection and investigation that resulted in OSHA issuing to 

USPS a one-item citation alleging that during the repair USPS had violated OSHA’s “control of 

hazardous energy (lockout/tagout)” (LOTO) standard, codified at 29 C.F.R. § 1910.147. The 

citation characterized the LOTO violation as having been “willful” and proposed a penalty of 

$99,630. 

The gist of the alleged LOTO violation is that USPS instructed employees to lock out an 

EID other than the EID that the APPS-specific LOTO procedures specified to be locked out for 

the repair of the broken conveyor belt. 

USPS timely contested the citation and proposed penalty, bringing the matter before the 

independent Occupational Safety and Health Review Commission (Commission) under section 

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

Secretary of Labor (Secretary) thereafter filed his complaint pursuant to Commission Rule 34(a) 

in which he realleged the citation and the proposed penalty as originally issued. 29 C.F.R. 

§ 2200.34(a). In addition to characterizing the violation as “willful” within the meaning of section 

17(a) of the Act, the complaint alleged further that the violation was also "serious" within the 

meaning of section 17(k), in that there was a substantial probability that death or serious physical 

harm could have resulted from the violative conditions or practices. 29 U.S.C. §§ 666(a) & (k). 

(Complaint ¶ 6). 

The American Postal Workers Union, AFL-CIO (APWU), elected party status in the 

Commission proceedings as an Authorized Employee Representative pursuant to Commission 

Rule 20(a). 29 C.F.R. § 2200.20(a) (2017). By order of the Commission’s Chief Judge dated June 

16, 2017, APWU’s party status in this proceeding was formally recognized. 
4 

The matter was thereafter assigned to the undersigned administrative law judge, and an 

evidentiary hearing was conducted in Allentown, Pennsylvania, on June 5 & 6, 2018. Post-hearing 

briefing was completed on October 19, 2018. (APWU opted not to file a post hearing brief.) 

The principal issues presented, and the decisions thereon, are as follows: 

 Did the Secretary prove by a preponderance of the evidence that 

USPS instructed employees to lock out an EID other than the EID 

that the APPS-specific LOTO procedures instructed to be locked 

out, in violation of § 1910.147(d)(2)? 

Decision: Yes. 

 Did the Secretary prove by a preponderance of the evidence that the 

violation was willful? 

Decision: No. 

 Did the Secretary prove by a preponderance of the evidence that the 

established violative condition created a substantial probability that 

death or serious physical harm could result, so that the violation was 

“serious” within the meaning of section 17(k) of the Act? 

Decision: No. 

 What is the appropriate penalty for the proven other-than-serious 

violation of the LOTO standard? 

Decision: The maximum allowable penalty is assessed. 

For the reasons described below, a penalty of $12,675 is assessed for the proven 

other-than-serious violation of 29 C.F.R. § 1910.147(d)(2). 

II. FINDINGS OF FACT 

Except where the following findings indicate the absence or insufficiency of evidence to 

prove a matter of fact, the following facts were established by at least a preponderance of the 

evidence: 
5 

1. The United States Postal Service (USPS) employs employees in processing U.S. Mail 

at its Lehigh Valley Processing & Distribution Center (Center) located in Lehigh Valley, 

Pennsylvania. 

Automated Package Processing System (APPS) 1

2. The Center is outfitted with an Automated Package Processing System (APPS) for 

processing and sorting mail. The APPS at the Center is one of 74 such machines that USPS 

operates throughout the nation. (Ex. R-30 at 1). 

3. The APPS unloads mail items (letters, magazines, and parcels) onto an input conveyor, 

organizes the items into a single layer on a conveyor (a process called “singulating”), photographs 

each item, and sorts each item. (Id.). 

4. Some of the 74 APPS that USPS operates nationally are “dual-sided,” but the APPS at 

the Center is single-sided. (Ex. R-30 at 1–2). Dual-sided APPS machine are capable of processing 

mail when one side is shut down. (Ex. C-10 at 16; Ex. R-30 at 35). 

The Three Subsystems of an APPS Machine 

5. APPS machines have three subsystems, each of which is modular and scalable to meet 

a particular facility’s capacity needs and floor configuration. (Ex. R-30 at 1 & 3). Those three 

subsystems are: (a) the Feed, Singulation and Distribution Subsystem (FSD Subsystem), (b) the 

Induction Subsystem (IND Subsystem), and (c) the Sorter Subsystem. (The broken belt that was 

repaired in October 2016 was located in the IND Subsystem.) The illustration of the APPS on 

1 The following glossary of certain acronyms used in this decision is provided for reference: 

• IND-MCC: Main Control Cabinet for Induction Subsystem 

• IND-DCC-3: Distributed Control Cabinet for induction lane no. 3 

• Belt I-3-2: Belt no. 2 of induction lane no. 3 

• MPE: Mail Processing Equipment mechanic 
6 

page 2 of Exhibit R-30 (labelled Figure 2) is a complete depiction of all three subsystems of a 

single-sided APPS machine such as the one at the Center. 

6. Feed, Singulation and Distribution Subsystem (FSD Subsystem). The FSD Subsystem 

consists of belts and roller conveyors that are arrayed in a series to (1) unload mail onto the 

receiving conveyor, (2) “singulate” and weigh individual mail items, (3) capture a photographic 

image of each item, and (4) transfer each item to the IND Subsystem. When any conveyor in the 

FSD Subsystem becomes inoperable, the entire FSD Subsystem is rendered inoperable. For a 

single-sided APPS such as the APPS at the Center, if the FSD Subsystem were to be inoperable, 

the APPS would not be capable of processing mail. (Ex. R-30 at 2-3, 34). 

7. Induction Subsystem (IND Subsystem). A diagram of the IND Subsystem that also 

reflects its relation to the two other subsystems is in footnote 2.2

 

a. The sole components of the IND Subsystem are four induction lanes (sometimes called 

“induct lanes”)—three “automated” induction lanes and one “semi-automated” induction lane. 

The induction lanes convey mail items from the FSD Subsystem to the Sorter Subsystem. A 

2

 The diagram below (Ex. R-30 at 8) reflects a bird’s-eye view of the induction area and its 

spatial relation to the shoe sorter (which is part of the FSD Subsystem) and the sorter train (which 

is part of the Sorter Subsystem). The large arrows superimposed on the shoe sorter and the sorter 

train indicate the direction that mail items flow. 
7 

conveyor known as the “shoe sorter” (a conveyor in the FSD Subsystem) transfers mail items onto 

the induction lanes, which in turn transfer the items to the “sorter train” (a conveyor in the Sorter 

Subsystem). 

b. The three automated induction lanes are arranged adjacent and parallel to one another. 

(Ex. R-30 at 8). Each automated induction lane consists of five conveyor belts, numbered 1 

through 5 in the order of mail flow. The top surface of the conveyor belts is elevated about 66 

inches (5.5 feet) above floor level. (T. 48, 551). 

c. Belt number 2 of an automated induction lane is curved to make a ninety-degree turn 

and is described in a maintenance manual as the “induction curve conveyor.” (Ex. C-46 at 1). Belt 

2 on induction lane 3 is the belt that broke and required repair at the Center in October 2016 

(identified hereafter as conveyor belt “I-3-2” for “induction lane 3, belt 2”). 

d. Belt number 1 of an automated induction lane is immediately adjacent to the shoe sorter 

(a conveyor in the FSD Subsystem), and Belt 5 is immediately adjacent to the sorter train (a 

conveyor in the Sorter Subsystem). (Ex. C-1; Ex. R-30 at 8). Belts 1 and 5 are described as “45 

degree” conveyor belts because that is the angle at which each meets the conveyors of the adjoining 

subsystems. Belts 1 and 5 are also sometimes referred to as the “outside” belts because they 

bookend the “inside” belts (belts 2, 3 and 4) and adjoin conveyor belts located in the other two 

subsystems. 

8. Sorter Subsystem. The main components of the Sorter Subsystem are (1) a conveyor 

called the sorter train, and (2) multiple output chutes. The sorter train conveys mail items to 

various output chutes, which discharge the items into a variety of container types for subsequent 

delivery. (Ex. R-30 at 2). 

IND Subsystem’s Interlocked Maintenance Access Gates 

9. Employees needing to work on an induction lane can only get to it by opening and 
8 

passing through one or more interlocked “Maintenance Access Gates” (“access gates” or “gates”). 

(Ex. R-30 at 9). In the diagram in footnote 2 supra, the four access gates are designated with the 

letters A, B, C and D. (Ex. R-30 at 9). The cross-hatched quarter circles in the diagram reflect the 

swing radius of each gate. (T. 53-54, 463). The region between gate A and induction lane 4 is 

known as the “induction area” and is regarded as a “maintenance only” area to be accessed only 

by highly trained maintenance employees who are known as Mail Processing Equipment 

mechanics (MPEs). (Ex. R-30 at 9; T. 24, 52). 

10. When an access gate is opened while the IND Subsystem is operating, an interlock 

feature will cause all the conveyor belts on the induction lane that is immediately beyond the gate 

to stop. (Ex. R-30 at 9). This interlock feature prevents employees from making inadvertent 

contact with an induction lane’s moving belts. (See id., noting that the interlock feature “would 

prevent an inattentive employee from wandering up to the conveyor and reaching on top of the 

lane where moving belts are present”). 

11. Each access gate is about four feet high. (See Ex. C-8; T. 56-57, 59). Before opening 

a gate, an MPE is supposed to depress a white-colored button that is located near the gate entrance. 

Depressing the white button causes the induction lane that is beyond the gate to clear itself of any 

mail items on that induction lane and then to bring all the conveyor belts of that induction lane to 

a halt. So, for example, depressing the white button at the entrance to gate A will cause all mail 

items on induction lane 1 to be moved off the lane’s five conveyor belts and then all five belts 

would come to a halt. Opening gates B, C and D have the same effect on the belts in induction 

lanes 2, 3 and 4 respectively. (Ex. R-30 at 9). When an induction lane is cleared of mail and its 

belts come to a standstill, the white-colored button then illuminates, which signals to the MPE that 

it is then permissible to open the gate and pass through. Typically, after an MPE passes through a 
9 

gate, the gate is kept open, and the induction lane beyond it remains at a standstill for so long as 

the MPE remains on the opposite side of the gate entrance. (T. 112-13, 116-17, 277-79). 

12. An induction lane that has been brought to a standstill in the manner described in the 

preceding paragraph can be returned to operation by an MPE closing the gate and then depressing 

a green-colored “reset” button that is located on the same switchbox as the white-colored button 

for that gate. Depressing the reset button after the gate is closed causes the conveyor belts on the 

induction lane associated with that button to resume processing mail. 

13. The interlock feature for the gates can be bypassed by an MPE passing through a 

gate, closing the gate behind her, then reaching back over the top of the now closed gate (through 

an opening between the top of the gate and the underside of the elevated induction lane belt 2), 

and then depressing the reset button. This method of bypassing the interlock is depicted in the 

photograph at Exhibit C-9. (T. 231). Bypassing the interlock in this manner will cause the 

conveyor belts for the induction lane on the exit side of the closed gate to resume operating and 

processing mail. So, for example, depressing the reset buttons associated with gates A and B after 

those gates have been closed behind an MPE who has passed through those gates will cause the 

conveyor belts of induction lanes 1 and 2 to resume processing mail. (T. 259). 

14. To rebuild belt I-3-2, MPEs had to pass through gates A, B, and C to get to induction 

lane 3. For induction lanes 1 and 2 to process mail while MPEs rebuilt belt I-3-2, the MPEs had 

to close gates A and B behind them and then bypass the interlock feature by pressing the reset 

button while standing on the opposite side of the closed gate and reaching over the top of closed 

gate in the manner depicted in Exhibit C-9. (T. 81-82, 109-12, 116-17, 120, 257-59, 277-79). 

MPEs are generally prohibited from bypassing the interlock feature in this manner. (T. 116-17, 

136, 230-32, 255, 502, 601; Ex. R-30 at 11-12). USPS’s voluminous maintenance manual for the 
10 

APPS (MS-202, see infra ¶ 32), instructs MPEs that the reset button “should not be pressed until 

maintenance personnel leaves that area and closes the access [gate],” and that when the reset button 

is pressed “all personnel should be clear of the area.” (Ex. R-30 at 12). 

15. In the repair and rebuild of belt I-3-2, the MPEs did their work while positioned on 

the floor area that is between induction lanes 2 and 3 as depicted in the diagram in footnote 2. In 

that space, the distance between the inner radius of curved belt I-3-2 and the outer radius of curved 

belt I-2-2 is about three feet. (T. 478). The distance from belt I-3-2 to the shoe sorter is about 3.5 

feet, and the distance from belt I-3-2 to the sorter train is about 4.5 feet. (T. 551). 

Control of Electricity to the APPS and its Subsystems 

16. The APPS receives power via a single 480-volt (AC) power drop to the Sorter Main 

Control Cabinet (“SMCC”). (T. 36-37, 39; Ex. C-10 at 6; Ex. R-30 at 3). 

17. The SMCC is the main power source for the entire APPS and distributes electricity 

to each of its three subsystems. If power is shut off at the SMCC, the entire APPS is de-energized. 

(T. 36-37; Ex. C-10 at 1, 5). 

18. The SMCC is outfitted with an energy isolating device (EID) that is capable of being 

locked out. When in the off position, this EID de-energizes all three subsystems of the APPS. 

(Ex. C-10 at 8). The Center’s APPS cannot process mail when the SMCC is de-energized. 

19. The SMCC delivers electricity to the FSD Subsystem by delivering it to the FSD 

System’s Main Control Cabinet (FSD-MCC). The FSD-MCC is outfitted with an EID that is 

capable of being locked out. When in the off position, this EID de-energizes the entire FSD 

Subsystem. The Center’s APPS cannot process mail with the FSD Subsystem de-energized. (Ex. 

C-10 at 16). 

20. The SMCC delivers electricity to the IND Subsystem by delivering it to the IND 

System’s Main Control Cabinet (IND-MCC). The IND-MCC is outfitted with an EID that is 
11 

capable of being locked out. When in the off position, this EID de-energizes the entire IND 

Subsystem. When electricity to the IND-MCC is disconnected, the entire IND Subsystem is deenergized. The Center’s APPS cannot process mail with the IND Subsystem de-energized. (Tr. 

40; Ex. C-10 at 34). 

21. Unlike the FSD Subsystem and the IND Subsystem, the Sorter Subsystem does not 

have a dedicated Main Control Cabinet. Rather, the SMCC delivers electricity directly to the 

Sorter Subsystem. 

22. Both the FSD-MCC and the IND-MCC distribute the 480 volts AC of power received 

from the SMCC to their respective subsystem components by delivering the electricity to multiple 

Distributed Control Cabinets (DCCs) within their respective subsystems. 

23. The FSD-MCC delivers 480 volts AC to eight FSD Distributed Control Cabinets 

(FSD-DCCs) that are identified as FSD-DCC-1 through FSD-DCC-8. (Ex. C-10 at 16; Ex. R-30 

at 7). Each of the eight FSD-DCCs distributes power to a specific group of conveyors in the FSD 

Subsystem. Consequently, some adjacent conveyor belts in the FSD Subsystem receive power 

through different FSD-DCCs. (Ex. C-10 at 16; Ex. R-30 at 7, 34). Each FSD-DCC is equipped 

with an EID that is capable of being locked out and that when in the off position de-energizes the 

component of the FSD Subsystem to which that particular FSD-DCC supplies electricity. (Ex. 

R-30 at 7). 

24. The IND-MCC delivers the 480 volts AC that it receives from the SMCC to four 

Induction Distributed Control Cabinets (IND-DCCs) that are identified as IND-DCC-1 through 

IND-DCC-4. (Ex. C-10 at 34). Each induction lane has a dedicated DCC, which is located 

underneath belt 3 of each induction lane as indicated in the diagram in footnote 2. Induction lane 

1 receives power through IND-DCC-1, induction lane 2 receives power though IND-DCC-2, and 
12 

so forth. (Ex. C-1; Ex. R-30 at 3-4; T. 36-37, 40, 66-67, 75). Each IND-DCC is equipped with an 

EID that is capable of being locked out. When the EID for an induction lane’s IND-DCC is in the 

off position, 480 volts AC remains at the top of the IND-DCC enclosure but is removed from the 

induction lane itself (except for a residual 24 volts, which is deemed a non-hazardous level under 

USPS’s hazardous energy control procedure). (T. 62-64; Ex. C-10 at 2). When the EID for an 

automated induction lane’s IND-DCC is in the off position, electricity cannot be distributed to any 

of the five motors that drive the lane’s five conveyor belts (each of the five belts being driven by 

a separate motor). (Ex. R-30 at 3-4, 14). Consequently, when an induction lane’s IND-DCC is 

de-energized, all five belts in that induction lane are de-energized. (Ex. R-30 at 7-8; T. 512). 

25. When an induction lane’s IND-DCC is de-energized, other induction lanes that are 

not de-energized at their respective IND-DCCs can continue to process mail. (Ex. R-30). 

Hazardous Energy Control Procedures (LOTO) 

26. USPS has developed a written APPS-specific hazardous energy control procedure 

that applies to every APPS that it operates in the field. This written procedure is in the form of a 

USPS “Maintenance Management Order” (MMO) that was prepared and issued by USPS’s 

headquarters for Maintenance Operations located in Norman, Oklahoma. The APPS-specific 

energy control procedure that was in effect in October 2016 is titled “Equipment Specific Energy 

Control Procedure: Automated Package Processing System –– Single and Dual (APPS),” dated 

June 22, 2015 and designated “MMO-037-15.” There had been prior iterations of the 

APPS-specific energy control procedure that bore different MMO designations. (T. 139, 490-91). 

27. USPS developed MMO-037-15, as well as its prior iterations, to meet the 

requirements of OSHA’s LOTO standard. (Ex. C-10 at 1). 

28. MMOs like MMO-037-15 contain mandatory instructions that all of USPS’s MPEs 

are required to follow. (Ex. C-10; T. 171-72, 123-24, 216, 235). 
13 

29. MMO-037-15 has a total of 57 pages (some intentionally blank). The first three pages 

set forth basic provisions, with the third page being the signature page for the USPS official who 

approved the MMO. The remaining 54 pages of the MMO are made up of eight “attachments,” 

each of which pertains to discrete components and functions of an APPS. (Ex. C-10 at 3). 

30. Section 1.0 of the MMO declares its “General Principle” to be as follows: 

Under OSHA’s Standard on Control of Hazardous Energy 

(Lockout/Tagout), 29 CFR 1910.147, before service or maintenance 

is performed on machines or equipment, the machines or equipment 

must be turned off, disconnected from all energy sources, and then 

have an energy isolating device, lock, and identification tag applied, 

unless an exception exists as identified in Section 3.0 Exceptions to 

Lockout. 

The United States Postal Service requires the application of a 

locking device and personal identification tag for each technician 

working on the machine or equipment. 

The discussion below explains when this general principle is to be 

implemented with equipment in Postal facilities. 

(Ex. C-10 at 1). Immediately following this statement of “general principle,” section 2.0 of the 

MMO states its applicability to servicing and maintenance operations, providing in its entirety as 

follows: 

Equipment must be locked out for all maintenance or servicing 

activities any time the unexpected startup, application of power or 

release of stored energy could injure someone or could damage the 

equipment. This includes all preventive, corrective, breakdowns, or 

maintenance activities occurring during the run-tour; work such as 

cleaning, lubricating, and component replacement is included. In 

addition, employees must also lockout as required by maintenance 

documentation, local policy, or supervisor direction. 

The MMO’s section 3.0 is captioned “Exceptions to Lockout.” This section includes the following 

paragraph (bold typeface in original): 

Some machines have modular assemblies that are designed for 

separate subassembly de-energization and isolation, to enable 
14 

performance of service or maintenance activities. Provided 

there is no exposure to injury from unexpected startup, application 

of power, or release of stored energy, portions of the machine, such 

as, the ink jet printer and computer may remain powered to prevent 

clogs and loss of run data respectively. 

31. Attachments one through five of the MMO address hazardous energy control 

procedures. (T. 369; Ex. C-10 at 1). Attachment 1 addresses the procedure for de-energization of 

the entire APPS machine, which occurs at the SMCC. (Ex. C-10 at 3, 5-14). Attachments 2, 4 

and 5 each address the procedure for de-energization of each of the three subsystems. (T. 369, 

460). (T. 369; Ex. C-10 at 3, 15-24, 33-48). Attachment 3 addresses procedures for deenergization of the DCC for the unloader (which is part of the FSD Subsystem and receives 

electricity directly from the FSD-MCC). (Ex. C-10 at 25-32; Ex. R-30 at 34-35). Attachment 3 is 

the only attachment that is dedicated to describing energy control procedures solely for one of the 

DCCs. (Ex. C-10 at 3, 25-32; T. 491). (Attachments 6, 7, and 8 are supporting documents that 

are not pertinent to the issues presented here. [T. 369; Ex. C-10 at 3, 49, 51, and 53].) 

32. MPEs, in addition to relying on MMO-037-15 for LOTO procedures, rely also on 

USPS’s maintenance manual for the APPS, which is titled “Maintenance Series 

Handbook MS-202” (MS-202). (T. 123, 149, 155-56, 238-39, 296-98). MS-202 is in six volumes 

and is thousands of pages long. (T. 157, 314). Its table of contents contains roughly 3000 separate 

headings. (Ex. C-42). 

33. The energy control procedures set forth in attachments 1 through 5 of MMO-037-15 

contain multiple references to MS-202. (Ex. C-10 at 8, 9, 10, 12, 20, 28, 43, 44). For example, in 

detailing the shutdown procedure for the entire APPS by de-energizing the SMCC, Attachment 2 

of MMO-037-15 states: “For detailed steps to properly shut down the APPS system refer to 

MS-202, Volume A, Section 3.5.” (Ex. C-10 at 8). 
15 

34. MS-202 contains specific instructions regarding how to repair or replace particular 

parts, as well as listing the parts needed for the repair, and sometimes it identifies which EID to 

lock out before performing a particular repair or maintenance activity. (T. 155-56, 238-39; e.g., 

Ex. C-45 [sec. 5.8.6.1, ¶1]; Ex. C-46 [sec. 5.8.12.1, ¶1]; Ex. R-30 at 26 [sec. 4.9.1.2, ¶1], at 30-31 

[sec. 4.9.3.5.4, ¶¶10 & 21], at 32 [sec. 5.8.5.5, ¶1], at 33 [sec. 5.8.5.6, ¶1]). 

35. MS-202 contains specific instructions on performing some of the tasks that had to be 

done to rebuild belt I-3-2. MS-202 identifies the IND-MCC to be locked out for some those tasks, 

such as the removal of certain guards, removal of the wheel and shaft, and removal of the pressure 

rollers. (T. 165-72, 238-43, 296-98; Ex. C-45 at 1; Ex. C-46 at 1-2, 12, 25; Ex. R-30 at 23-24, 30-

31). MS-202 generally does not set forth specific procedural steps for de-energizing and locking 

out an EID. But MS-202 sets forth the following “Warning” immediately before it identifies a 

particular EID to be locked out: 

WARNING

Refer to local lockout procedures to properly shutdown and 

lockout this machine before performing the following task. 

(Ex. R-30 at 21, 23, 24, 26, 29–33; Ex. C-45 at 1 & 3; Ex. C-46 at 3, 6, 7, 9, 12, 14, 17, 19, 22, 24, 

25). 

36. The Center had no local procedures that augmented the lockout procedures set forth 

in MMO-037-15 or MS-202. (T. 150, 156, 171, 503-04). The Center’s management had not 

developed or trained MPEs on any formal local LOTO procedure specifying the lock out of an 

IND-DCC for the repair of an automated induction lane’s “inside” belt (belts 2, 3 or 4). (Id.). 

37. MS-202 describes some minor service and maintenance activities, such as photo-eye 

alignment, that are completed by locking out an IND-DCC. (T. 142-43, 288-89, 301, 595-98; Ex. 

R-30 at 26). 
16 

38. MMO-037-15, as augmented by MS-202, sets forth the complete approved 

APPS-specific LOTO procedures that applied to the Center’s APPS in October 2016. (T. 123, 

138-39, 294-99, 309-312, 335-36, 350-51, 503-04). 

39. Attachment 4 to MMO-037-15 is titled “Isolation of the Induction Main Control 

Cabinet – IND-MCC-X.” (Ex. C-10 at 33). (The “X” designation pertains only to dual-sided 

APPS machines—the “X” is a placeholder for the number “1” or “2” to reflect one of the two 

sides.) Attachment 4 is the only attachment that addresses de-energization of the IND Subsystem 

or any components of that subsystem, including each induction lane’s dedicated IND-DCC. (T. 

138-140, 152-53, 236, 310-12). Attachment 4 does not contain any specific LOTO procedures 

directed to any of the four IND-DCCs. (T. 295, 310-12, 501; Ex. C-10). The introductory and 

prefatory paragraphs of Attachment 4 provide as follows (formatting and bold typeface in 

original): 

The following procedure has been developed specifically for locking out the 

Induction Main Control Cabinet – IND-MCC-X when performing corrective or 

preventive maintenance. Each facility will use this procedure. ... 

 WARNING 

Failure to comply with lockout procedure may result in injury 

or death to personnel and/or damage to equipment. 

NOTE 

Employees must adhere to the policies of the Electrical Work 

Program (EWP), which includes Energy Control Procedures (ECP). 

Failure to properly observe ECP will result in appropriate action. 

[ * * * * * ] 

MACHINES OR EQUIPMENT UTILIZING THIS PROCEDURE: 

APPS Induction Main Control Cabinet – IND-MCC-X 

[End Page 1, and Begin Page 2 of Attachment 4] 
17 

The APPS is designed with multiple maintenance accessible disconnect 

switches to facilitate certain limited repairs without locking out the entire 

APPS machine. There are numerous disconnect switches located on Distributed 

Control Cabinets (DCCs) in the Feed and Induction sections of the APPS. It is not 

recommended to isolate power at the DCCs because there are belts in close 

proximity to each other that are controlled by separate DCC enclosures. This would 

necessitate the use of multiple locks to prevent motion of adjacent belts or 

assemblies. It is recommended that the Main Control Cabinet (MCC) enclosures 

be used as isolation points for conveyor repairs. The Induct Main Control Cabinet 

(IND-MCC-X) for Induction repairs and the Feed, Singulation & Distribution Main 

Control Cabinet (FSD-MCC-X) for FSD repairs for each side of the APPS. [sic]

3

 

NOTE 

Isolation of an IND-MCC-X will prevent the ability to process mail 

on that side of an APPS. The opposite side of a Dual Sided APPS 

can only process mail if a Single Sided sort plan has been written 

for the opposite side of the APPS. 

The IND-MCC-X supplies 480 VAC to all IND-DCC-X enclosures (IND-DCC-X 

1 through 4) for that side of the machine. Opening the disconnect on this enclosure 

will remove 480 VAC from the conveyors of the Induction section of the machine, 

preventing motion of all conveyors in the Induction section in order to facilitate 

belt, bearing, or roller replacement. 

WARNING 

Repairs may not be performed on the 45 degree induction 

conveyor belts adjacent to the Shoe Sorter unless the FSD 

section has also been isolated to prevent belt motion. Repairs to 

the 45 degree belt adjacent to the cross belt Sorter may only be 

performed while the entire APPS is locked out.

After stating one additional “warning” and one additional “caution” not relevant to the issues here, 

Attachment 4 has a paragraph captioned “Purpose” that states in its entirety as follows: “To prevent 

3

 The “sic” connotes the final sentence being a sentence fragment. It may be that the final 

two sentences of this paragraph were intended to be written as a single sentence, with a colon 

instead of a period at the end of the first sentence, in the following manner: “It is recommended 

that the Main Control Cabinet (MCC) enclosures be used as isolation points for conveyor repairs: 

the Induct Main Control Cabinet (IND-MCC-X) for Induction repairs and the Feed, Singulation & 

Distribution Main Control Cabinet (FSD-MCC-X) for FSD repairs for each side of the APPS.” 

(See Thompson testimony at T. 513-14). 
18 

mechanical motion of conveyors within the Induct system and remove the potential hazard of 480 

VAC at conveyor drive motors in order to facilitate repairs or replacement without powering down 

the entire APPS.” 

Training and Historical Application of APPS LOTO Procedures 

40. MPEs attend an approximate five-week training course on the repair and maintenance 

of the APPS, which is conducted at USPS’s national training center in Norman, Oklahoma. (T. 

181). MPEs are trained that for major service and maintenance of any induction lane belts, the 

IND-MCC should be de-energized. (T. 143, 224-25, 233, 239-40, 289-91, 294-95, 592-93 310-

12, 600). 

41. Prior to the rebuild of belt I-3-2 in October 2016, none of the MPEs at the Center had 

been trained to lock out only the IND-DCC for the repair of an “inside” belt on an automated 

induction lane. MPEs understood MS-037-15 to specify that the IND-MCC be locked out for 

conveyor repairs and for belt, bearing, and roller replacement (all of which had to be done to repair 

belt I-3-2). (T. 118, 144, 225, 233, 239-240, 289-91, 294-95, 310-12). 

42. Prior to the rebuild of belt I-3-2, MPEs at the Center had not locked out an IND-DCC 

to control hazardous energy during the repair of an induction lane’s “inside” belts. (T. 225, 296). 

43. In October 2016, the maintenance supervisors for at least two of the three shifts had 

not received formal training on the APPS, and they generally deferred to the knowledge and 

experience of the MPEs they supervised in implementing the LOTO procedures for the APPS. 

(T. 330, 340, 347, 354-55). 

44. The Center’s maintenance manager (Kevin Pfanders), who at one time had been 

employed as an MPE, recognized that it was not normal operating procedure for MPEs to work on 

an induction lane while other induction lanes were running except for “minor, typical repairs that 

we perform every day” such as adjusting a photo cell and “adjusting things like that.” (T. 562-63). 
19 

Belt I-3-2 Breakdown and Repair 

45. Belt I-3-2 broke at about 4:00 p.m. on Saturday, October 15, 2016. The break 

occurred during the work shift known as “Tour 3,” whose hours are from about 2:00 p.m. to 10:30 

p.m. The repair required a substantial mechanical rebuild of the entire mechanism, which entailed 

rebuilding the rollers, bearings, drive shaft, wheel and pulleys that powered the broken belt. (T. 

93, 96-98, 118-19, 144, 147, 227, 290-91, 350; Ex. C-16; Ex. R-31 at Bates 332). Some tasks in 

performing the rebuild required that three MPEs be working hands-on at the same time in the floor 

space between induction lanes 2 and 3. (T. 100). The MPEs regarded the rebuild to be a “big job.” 

(T. 147, 227, 290-91, 350). Operating the APPS without induction lane 3 in service reduced the 

APPS’s production volume between 25% to 33%. (T. 333-34). 

46. From the time that belt I-3-2 broke to the time that the repair was completed, the 

APPS was powered down completely during the following preventive maintenance periods, 

(known as “PM windows”): from 2:30 a.m. to 10:30 a.m. (8 hours) on Sunday, October 16; from 

1:00 a.m. to 8:15 a.m. (7.25 hours) on Monday, October 17; from 3:45 a.m. to 7:30 a.m. (3.75 

hours) on Tuesday, October 18; from 3:45 a.m. to 9:15 a.m. (5.5 hours) on Wednesday, October 

19; and beginning at 3:15 a.m. on Thursday, October 20, which is the day the repair was completed. 

(Ex. R-10; T. 552-54). (No evidence was presented on the time of day on October 20 that the 

repair was completed or when the APPS resumed operating with all induction lanes operable.) 

47. Upon being informed on the evening of Saturday, October 15, that belt I-3-2 required 

repair, the Center’s acting plant manager, Jeffrey Hotchkiss, directed that the repair be completed 

when the APPS would be shut down during a regularly scheduled 8-hour PM window from 2:30 

a.m. to 10:30 a.m. on Sunday, October 16. (T. 419-22, 555; Ex. R-13 at Bates 332; Ex. C-16). 

The repair was not completed during that PM window on Sunday morning, however, because of 

replacement part problems. (T. 129, 202, 550). The parts problem persisted beyond Sunday, and 
20 

the repair remained incomplete through the 7.25-hour PM window on Monday morning and the 

3.75-hour PM window on Tuesday morning. (T. 549-50). 

48. Soon after the conveyor broke on Saturday, October 15, induction lane 3 was 

de-energized and locked out at the IND-DCC-3, and two or three Tour 3 MPEs began to strip it 

down as the other induction lanes continued to operate and the APPS continued to run and process 

mail. (T. 342-43, 555, 561). The supervisor of maintenance operations for Tour 3 did not perceive 

this approach to have been contrary to the APPS-specific LOTO procedures, although she does 

not regard herself as expert on those procedures. (T. 330-31, 338-40). None of the Tour 3 MPEs 

doing the work voiced any objection or concern about working on induction lane 3 while the other 

induction lanes continued to process mail. (T. 342-43, 555). (The record does not indicate who 

on Tour 3 decided to lock out the IND-DCC-3 or how that decision was made.) 

49. Around 10:00 p.m. on October 15, Tour 1 MPEs began to arrive for their shift (hours 

about 10:30 p.m. to 6:30 a.m.). (T. 131, 564). One of the Tour 1 MPEs, Mr. Christopher Day, 

told his supervisor (Mr. Kevin Kibodeaux, the Supervisor of Maintenance Operations for Tour 1) 

that he believed it was inappropriate to work on an induction lane while the APPS was running. 

(T. 569). 

50. By an email sent at 10:39 p.m. on Saturday October 15, Mr. Kibodeaux informed the 

Center’s maintenance manager, Kevin Pfanders, that Mr. Day believed “that working on an induct 

station while the machine is running is an OSHA violation.” (T. 560, 567). Pfanders later 

instructed Kibodeaux to complete the rebuild during the 8-hour PM window on Sunday morning, 

October 16. (T. 555-56, 569-70). 

51. From 2:30 a.m. on Sunday, October 16, through 7:30 a.m. on Tuesday, October 18, 

(a total of 53 hours) no repair work on belt I-3-2 was done outside the PM windows or otherwise 
21 

when the APPS was running. (T. 578-79). 

52. The rebuild of belt I-3-2 remained unfinished when the day shift (Tour 2) MPEs 

started to work on Tuesday, October 18, at around 7:30 a.m. The Center’s maintenance manager 

(Pfanders) instructed the Supervisor of Maintenance Operations for Tour 2, Joe Basso, to direct 

MPEs on Tour 2 to perform the rebuild with only the IND-DCC-3 locked out and with the APPS 

continuing to process mail. (T. 292-93). 

53. Mr. Ron Jacobs, Jr., has worked as an MPE for USPS for over 20 years and is 

employed at the Center on the day shift. (T. 221-22). Mr. Wayne Greenzweig has worked as an 

MPE for USPS for over 10 years and is also employed at the Center on the day shift. (T. 284-85). 

At the start of Jacobs’ and Greenzweig’s workday on Tuesday, October 18, their supervisor (Joe 

Basso) directed them to work on the rebuild of the belt I-3-2 with only induction lane 3 locked out 

(at the IND-DCC-3) and with the APPS continuing to operate and process mail. (T. 228, 291-92). 

Both Jacobs and Greenzweig told Basso that they believed repairing belt I-3-2 after locking out 

only the IND-DCC-3 was contrary to procedures. (T. 229, 291-95). Basso then informed them 

that if they refused to work on the repair as directed, then he would have to “send them home” as 

he had been instructed to do by his supervisor, the Center’s maintenance manager (Pfanders). (T. 

229, 292). To be “sent home” means the employee would not receive pay for that day and could 

be subject to disciplinary action. (T. 229). Jacobs complied with the order and he spent the day 

working directly on belt I-3-2 with only the IND-DCC-3 locked out and while the APPS continued 

to operate and process mail. (T. 229, 243). Greenzweig requested permission to work in an 

alternative location where he believed a hazard did not exist, and his request was granted. (T. 293). 

54. After deciding to comply with his supervisor’s order, MPE Jacobs spoke by telephone 

that same day with the MPE Christopher Day, who also serves as an officer in the Lehigh Valley 
22 

Area Local of the APWU. Jacobs told Day about Basso’s order to repair belt I-3-2 with only the 

IND-DCC-3 locked out. (T. 120-22, 245). 

55. After speaking with Jacobs, Day telephoned the Center’s maintenance manager, 

Kevin Pfanders, and told Pfanders of Jacobs' concerns and expressed the view that established 

procedures required that the IND-MCC be locked out during the rebuild of belt I-3-2. (T. 177, 

208). Day asked Pfanders “to stop the project immediately,” but Pfanders told Day that he would 

not do so. (T. 126). 

56. At some point, the record does not indicate when or how, the acting plant manager, 

Mr. Jeffrey Hotchkiss, became aware that some MPEs were concerned that repairing belt I-3-2 by 

locking out IND-DCC-3 while the APPS continued to run violated the APPS-specific LOTO 

procedure. (T. 423-25). On Tuesday, October 18 (the same day that Day and Pfanders spoke by 

phone), Hotchkiss sought guidance on the issue by speaking on the telephone with Mr. Michael 

Thompson. Mr. Thompson is a Maintenance Management Specialist based at USPS’s 

Maintenance Technical Support Center (MTSC) in Norman, Oklahoma. Hotchkiss contacted 

Thompson because he regarded Thompson to be USPS’s foremost authority on the APPS, and 

Thompson had assisted him before. Hotchkiss had confidence in Thompson’s knowledge and 

expertise on the APPS, testifying that when “it comes to an APPS problem or issue” “there’s 

nothing that I do without talking to” Thompson. (T. 424-25). 

57. After Hotchkiss described the situation and his objective of having the APPS continue 

to process mail while belt I-3-2 was being repaired, Thompson advised Hotchkiss that it was safe 

to lock out the IND-DCC-3 during the rebuild of belt I-3-2 and for the APPS to continue to process 

mail while repairs were done. (T. 425-26; Ex. R-30 at 18-19). 

58. When Thompson advised Hotchkiss, Thompson did not make any independent 
23 

determination that locking out the IND-DCC-3 for the repair conformed to MMO-037-15. 

(T. 505). Rather, Thompson voiced a technical conclusion that MPEs working on belt I-3-2 with 

only the IND-DCC-3 locked out and the APPS continuing to process mail would not be exposed 

to any hazardous energy or any struck-by or caught-in hazards by virtue of the APPS continuing 

to process mail. (T. 505). Thompson did not make any determination or inquiry into whether 

doing so would conform with established procedures in MMO-037-15. As Thompson stated in a 

formal report that he prepared for the hearing in this Commission proceeding, he “did not find 

issue with local policy allowing for this repair using the method described.” (Ex. R-30 at 19). 

59. In the course of his telephone conversation with Hotchkiss, Thompson made no 

determination that the regulatory exception to the requirement of 29 C.F.R. § 1910.147(c)(4)(i) 

that LOTO procedures be in written form applied to the procedure that Hotchkiss sought his views 

on—locking out only the IND-DCC-3 for the repair of belt I-3-2. 

60. After his telephone conversation with Thompson, Hotchkiss told his staff that it was 

permissible for the APPS to continue to process mail during the repair of belt I-3-2, and he directed 

that the repairs proceed in that manner. (T. 427). Hotchkiss’s directive is documented in an email 

that he sent at 5:00 p.m. on Tuesday, October 18, to three officials at the Center: the Maintenance 

Manager (Pfanders), the Manager of Maintenance Operations (Lori Myers [T. 346]), and the 

Safety Specialist (Denise Edmonds [T. 539]). The email stated in part: “Team, I've reached out to 

Mike Thompson of MTSC for the APPS induct question. We have followed the proper procedures 

to allow work on the induct line with the machine running. The induct line is completely powered 

off which complies with EWP.” (Ex. R. 13 at Bates 365). (“EWP” stands for Electrical Work 

Plan. [See Ex. C-10 at 5].) 

61. Hotchkiss had not been trained on the APPS, had never done maintenance work, and 
24 

did not regard himself to be a “maintenance person.” (T. 430-31). Hotchkiss trusted Thompson, 

whom he believed was “the one person in the country that knows [the APPS] better than anybody,” 

to give him accurate guidance on the question he posed to Thompson. (T. 430). Hotchkiss relied 

on Thompson’s guidance in instructing his staff to rebuild belt I-3-2 while the APPS was running 

with only the IND-DCC-3 locked out. (T. 425-26). Beyond his telephone consultation with 

Thompson, Hotchkiss did not conduct (or direct his staff to conduct) any independent inquiry 

whether the procedure conformed to the requirements of the established APPS-specific LOTO 

procedures (T. 425-26), and he never personally reviewed MMO-037-15. (T. 434-35). 

62. When MPE Day arrived to work at around 10:30 p.m. on Tuesday, October 18, his 

supervisor (Kevin Kibodeaux) directed him to participate in the rebuild of Belt I-3-2 with only the 

IND-DCC-3 locked out and the APPS continuing to process mail. Day refused. He told 

Kibodeaux that he believed procedures required that the IND-MCC be locked out during the 

rebuild of belt I-3-2. (T. 132-35, 216). Kibodeaux informed Day that he had been instructed to 

“send home” any MPEs who refused to do the rebuild as directed. (T. 133-34). Day then asked 

and was permitted to confer with a shop steward before deciding whether to comply with the 

directive. 

63. While Day was conferring with the shop steward, Kibodeaux reported to the acting 

plant manager (Hotchkiss) that Day still had safety concerns performing the rebuild with the APPS 

operating. Hotchkiss responded by an email sent at 12:04 a.m. on Wednesday, October 19, that 

he had “already checked at the highest levels through [MTSC],” but he instructed Kibodeaux not 

to “force anyone to work in what they may think is an unsafe environment,” although at the same 

time he directed Kibodeaux to “[m]ake sure [the APPS] is up and running” by 07:30 a.m. (Ex. R22; T. 429-30). 
25 

64. After Day finished meeting with the shop steward, the shop steward met with 

Kibodeaux, and then MPE Day again met with Kibodeaux to reaffirm that he did not feel safe 

doing the rebuild with the APPS continuing to operate. (T. 135). Kibodeaux then informed Day 

that he would allow Day to opt out of working on the rebuild while the APPS continued to process 

mail, and Day opted out as permitted. (T. 135, 178). 

65. None of the MPEs working on Tour 1 in the early morning of Wednesday, October 

19, 2020, performed the rebuild while the APPS was processing mail. (T. 137). The repairs were 

not completed by 7:30 a.m. on October 19 as the acting plant manager Hotchkiss had directed 

Thibodeaux to accomplish just hours before. 

66. The rebuild was completed on Thursday, October 20, though the record does not 

disclose the time of day the rebuild was complete. Mr. Day was one of the MPEs involved in 

replacing the motor for belt I-3-2 during Tour 1 on October 20, but he did this work during a PM 

window when the APPS was not operating. (T. 134; Ex. R-10 at 3). 

III. DISCUSSION 

The Secretary alleges a single willful/serious violation of the LOTO standard, specifically 

§ 1910.147(d)(2), which requires that in executing LOTO procedures the “machine or equipment 

shall be turned off or shut down using the procedures established for the machine or equipment.” 

Section 1910.147(d)(1)–(2) is set forth below in full (subparagraph (d)(1) provided for context): 

(d) Application of control. The established procedures for the 

application of energy control (the lockout or tagout procedures) 

shall cover the following elements and actions and shall be done in 

the following sequence: 

(1) Preparation for shutdown. Before an authorized or affected 

employee turns off a machine or equipment, the authorized 

employee shall have knowledge of the type and magnitude of the 

energy, the hazards of the energy to be controlled, and the method 

or means to control the energy. 
26 

(2) Machine or equipment shutdown. The machine or equipment 

shall be turned off or shut down using the procedures established for 

the machine or equipment. An orderly shutdown must be utilized to 

avoid any additional or increased hazard(s) to employees as a result 

of the equipment stoppage. 

The citation alleges USPS violated the cited subparagraph (d)(2) in the following manner: 

Employees are rebuilding an Automated Package Processing 

System, comprised of multiple machines with separate energy 

sources which have not been controlled. This continuing violation 

most recently occurred on or about October 18, 2016, when the 

previously developed hazardous energy control procedures were not 

applied to the complete machine assembly. The employer's ongoing 

responsibility is to ensure the adherence to the machine specific 

procedures to affect [sic] the necessary energy control for each 

system component. 

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

of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) 

employees were exposed to or had access to the violative conditions; and (4) the employer had 

actual or constructive knowledge of those conditions. Donahue Indus. Inc., 20 BNA OSHC 1346, 

1348 (No. 99-0191, 2003); Atl. Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). 

A. “Standard Applies” Element. 

The LOTO standard’s “Scope” provision, § 1910.147(a)(1)(i), provides that the “standard 

covers the servicing and maintenance of machines and equipment in which the unexpected 

energization or start up of the machines or equipment, or release of stored energy could cause 

injury to employees.” 

The LOTO standard’s “Application” provision, § 1910.147(a)(2), provides in relevant part 

as follows: 

(2) Application. (i) This standard applies to the control of energy 

during servicing and/or maintenance of machines and equipment. 

(ii) Normal production operations are not covered by this standard 

(See subpart O of this part). Servicing and/or maintenance which 
27 

takes place during normal production operations is covered by this 

standard only if: 

(A) An employee is required to remove or bypass a guard or other 

safety device; or 

(B) An employee is required to place any part of his or her body 

into an area on a machine or piece of equipment where work is 

actually performed upon the material being processed (point of 

operation) or where an associated danger zone exists during a machine 

operating cycle. 

Two defined terms within the quoted “Scope” and “Application” provisions are “normal 

production operations” and “servicing and/or maintenance,” which are defined in § 1910.147(b) 

as follows: 

Normal production operations. The utilization of a machine or 

equipment to perform its intended production function. 

Servicing and/or maintenance. Workplace activities such as 

constructing, installing, setting up, adjusting, inspecting, modifying, 

and maintaining and/or servicing machines or equipment. These 

activities include lubrication, cleaning or unjamming of machines or 

equipment and making adjustments or tool changes, where the 

employee may be exposed to the unexpected energization or startup 

of the equipment or release of hazardous energy.

USPS acknowledges that the MPEs repairing belt I-3-2 would be risk of injury from 

hazardous energy relating to the operation of induction lane 3. USPS acknowledges further that 

the control of that hazardous energy was necessary to protect the MPEs from injury during the 

repair. (Resp’t Br. 11–13). USPS contends, however, that the MPEs repairing belt I-3-2 with 

induction lane 3 locked out 4 and the APPS continuing to process mail (i.e., continuing “normal 

production operations”) were not working in an area “where an associated danger zone exists 

during a machine operating cycle” within the meaning of § 1910.147(a)(2)(ii)(B) quoted above. 

4

 References in this Discussion section to a component being “locked out” presupposes that 

the component had been de-energized and isolated from the energy source before being locked 

out. See § 1910.147(d)(2)–(4). 
28 

USPS argues therefore that by operation of § 1910.147(a)(2)(ii)(B) the LOTO standard did not 

apply “to all of the other machines that make up the APPS” (such as the other three induction 

lanes, the sorter train, and the shoe sorter), which the USPS argues are all “separate” machines 

from induction lane 3. (Resp’t Br. 11–13). This argument fails for at least the following reasons. 

First, the APPS is a single machine for purposes of the applicability of the LOTO standard; 

it is not a collection of independent machines as USPS contends. This is because the three 

subsystems and the components of those subsystems “serve no other purpose besides the one they 

accomplish together when operating simultaneously.” Sec’y of Labor v. Action Elec. Co., 868 F.3d 

1324, 1332 (11th Cir. 2017) (deferring to Secretary’s informal interpretative guidance that “two 

pieces of equipment are part of one ‘machine’ if they do not function independently of one another 

or if both are sub-systems of a larger machine” [id. at 1330]). 

The APPS is undoubtedly “one system” that serves no other purpose than to process mail 

items. Indeed, the APPS includes the word “system” is its very name—Automated Package 

Processing System. The single-sided APPS at the Center cannot process mail unless at least one 

of the four induction lanes in the IND Subsystem is operating. The fact that the APPS can continue 

to process mail with up to three of the four induction lanes shut down does not render the IND 

Subsystem, or its four induction lanes, independent machines for purposes of determining the 

LOTO standard’s application. Cf. Action Electric, 868 F.3d at 1334-35 (noting that two 

components of a “cooling bed” machine cannot “perform useful work in isolation” so that those 

components “are not independent ‘machines’ but are rather sub-systems of the same” cooling bed 

machine). 

Second, the argument is flawed because it melds the third element of the Secretary’s burden 

of proof (employee access or exposure to a violative condition) into analysis for the first element 
29 

(the “standard applies” element). It is true that establishing a risk of injury is an aspect of the 

“standard applies” element for an alleged LOTO violation. See Otis Elevator Co. v. Sec’y of Labor, 

762 F.3d 116, 121 (D.C. Cir. 2014) (quoting § 1910.147(a)(1)(i) in observing that application of 

the LOTO standard requires a showing that the hazardous energy “could cause injury to 

employees”); see also Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 

36644, 36666 (Sept. 1, 1989) (final rule, to be codified at 29 C.F.R. pt. 1910) (“If an energy source 

does not have the capability of causing injury to employees, it is not ‘hazardous energy’ within the 

scope of this standard”). But the uncontroverted evidence here established that the MPEs repairing 

belt I-3-2 could be injured by hazardous energy associated with the operation of induction lane 3, 

and this suffices to establish the “standard applies” element for the alleged LOTO violation.5

 

Third, USPS’s argument fails by virtue of § 1910.147(a)(2)(ii)(A), quoted above, which 

provides that the LOTO standard applies to servicing activities conducted during normal 

production operations where an “employee is required to ... bypass a guard or other safety device.” 

The provision operates to make the LOTO standard applicable to the repair of belt I-3-2 while the 

APPS continued to process mail because the MPEs were required to bypass the interlocks for two 

access gates to enable induction lanes 1 and 2 to continue to operate while they repaired belt I-3-2. 

(See Findings of Fact ¶ 14). 

B. Non-compliance Element. 

1. Proof of a Hazard Resulting from the Violative Condition Not Required. 

The cited standard requires employers to control hazardous energy “using the procedures 

5

 USPS’s argument that no MPEs were endangered raises the issues of (1) whether any of 

the MPEs repairing belt I-3-2 had access or were exposed to the alleged violative condition, and 

(2) whether any MPEs were exposed to the risk of serious injury because of their access or 

exposure to the alleged violative condition. These matters are addressed infra in connection with 

discussion of the third element of the Secretary’s burden of proof and in connection with whether 

the violation was “serious” as defined in section 17(k) of the Act. 29 U.S.C. § 666(k). 
30 

established for the machine or equipment.” § 1910.147(d)(2). The Secretary alleges USPS did 

not comply with this standard during the repair of belt I-3-2 in that “the previously developed 

hazardous energy control procedures were not applied to the complete machine assembly.” 

USPS’s defense focuses in large part on its contention that the Secretary failed to prove 

that the MPEs repairing belt I-3-2 while the APPS continued to process mail were at risk of being 

injured by the running machine. USPS argues that the LOTO standard is a “performance” 

standard, so that the Secretary was obliged to “prove a hazard before an employer is found to have 

been in violation of such [a performance] standard,” which USPS argues the Secretary failed to 

do. See Resp’t Br. 13–14, citing Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 2287 

(No. 97-1073, 2007). 

The preamble to the LOTO standard aptly describes it as being “performance-oriented.” 

E.g., 54 Fed. Reg. at 36,645 & 36,656. The standard’s “Scope” provision states that the “standard 

establishes minimum performance requirements for the control of such hazardous energy.” 

§ 1910.147(a)(1)(i) (emphasis added). For example, the provisions of the LOTO standard that 

prescribe the matters that an energy control procedure must address are certainly “performanceoriented.” See § 1910.147(c)(4)(ii)(A)–(D); 54 Fed. Reg. at 36,656 (“The standard is written in 

performance-oriented language, providing considerable flexibility for employers to tailor their 

energy control programs and procedures to their particular circumstances and working 

conditions”); 54 Fed. Reg. at 36,684 (“The Final Rule is written in performance-based language 

that permits firms to develop lockout or tagout procedures that are most appropriate for their 

specific machines and equipment”). 

But not all provisions of the LOTO standard are performance-oriented. Rather, some 

provisions of the LOTO standard have attributes of a specification standard. See Otis Elevator 
31 

Co., 24 BNA OSHC 1081, 1085 (No. 09-1278, 2013) (determining that subparagraph (f)(2)(i) of 

the LOTO standard is a specification standard), aff’d 762 F.3d 116 (D.C. Cir. 2014); Am. Iron & 

Steel Inst. v. OSHA, 577 F.2d 825, 837 (3d Cir. 1978) (holding that the Act permits the Secretary 

to promulgate standards that possess both performance standard and specification standard 

attributes). 

The cited standard here provides that a “machine or equipment shall be turned off or shut 

down using the procedures established for the machine or equipment.” § 1910.147(d)(2). The 

word “shall” in this subparagraph connotes a requirement. Maine Cmty. Health Options v. United 

States, ___ U.S. ___, 140 S. Ct. 1308, 1320 (2020). Section 1910.147(d)(2) does not impose any 

precondition to the application of the mandate that employers utilize the energy control procedures 

that the employer has established to meet the LOTO standard’s requirements. That unconditional 

mandate renders the cited standard here, § 1910.147(d)(2), a specification standard. As with any 

specification standard, the Secretary was not required to prove an employer’s failure to comply 

with the standard created an actual hazard under the circumstances then present. E.g., Otis 

Elevator Co., 24 BNA OSHC at 1085; see also Bunge Corp. v. Sec'y of Labor, 638 F.2d 831, 834 

(5th Cir. 1981) (“Unless the general standard incorporates a hazard as a violative element, the 

proscribed condition or practice is all that the Secretary must show; hazard is presumed and is 

relevant only to whether the violation constitutes a ‘serious’ one”). 

2. Established LOTO Procedures Not Followed. 

USPS argues that MMO-037-15 does not expressly prohibit locking out the IND-DCC for 

the repair of an induction lane’s “inside” belts (belts 2, 3, or 4), and thus USPS’s order that MPEs 

do so did not contravene its written procedures. (Resp’t Br. 5-6; Resp’t Reply Br. 1, n.1). This 

argument is rejected. The great weight of the evidence showed that USPS’s established LOTO 
32 

procedures contained provisions identifying the IND-MCC to be locked out for the rebuild of any 

of an induction lane’s “inside” belts. 

The APPS-specific LOTO procedure (MMO-037-15) contains numerous references to the 

maintenance manual for the APPS (designated the MS-202), and MPEs rely on the MS-202 for 

instructions on what EID to lock out for performing certain repair and maintenance activities. 

(Findings of Fact ¶ 32). MPEs testified that provisions of the MS-202 instructed locking out 

components other than the IND-DCC for certain activities that had to be done as part of the rebuild 

of an induction lane belt. That testimony was not controverted and was corroborated by provisions 

in the MS-202. (See Findings of Fact ¶ 35). 

MPEs also testified that they were trained to lock out the IND-DCC only for certain minor 

maintenance activities, such as adjustment of the photo-eye. That testimony was similarly 

corroborated by portions of the literally voluminous MS-202 and was similarly uncontroverted 

and persuasive. (Findings of Fact ¶¶ 37, 44). The Center’s maintenance manager (Pfanders) also 

corroborated the MPEs’ testimony on this point, acknowledging that it was not normal operating 

procedure for MPEs to work on an induction lane while other induction lanes run, except for 

making certain “minor, typical repairs that we perform every day.” (T. 562-63). 

USPS focuses on the “recommended/not recommended” language used in Attachment 4 to 

MMO-037-15—locking out the IND-MCC for “conveyor repairs” being “recommended,” and 

locking out the IND-DCCs being “not recommended.” (Findings of Fact ¶ 39). USPS argues that 

these stated “recommended/not recommended” LOTO practices were simply just that—mere 

recommendations—and did not proscribe locking out the IND-DCC-3 for the repair of belt I-3-2. 

(Resp’t Br. 5-6). This argument ignores the fact that the MS-202 augmented the MMO-037-15, 

and effectively transformed the MMO’s “recommendations” to an instruction to lock out the 
33 

IND-MCC for the rebuild of an “inside” induction lane belt like belt I-3-2. (See Findings of Fact 

¶¶ 35, 38, 39). Angelica Textile Servs., Inc., 2018 WL 3655794, *2, 27 BNA OSHC 1246 (No. 

08-1774, June 24, 2018) (involving written LOTO procedures that consisted of multiple 

documents), vacated as moot, and instructing Commission to dismiss on remand, 803 F. App’x 

542 (2d Cir. 2020) (unpublished). This was confirmed by uncontroverted evidence that the 

Center’s MPEs had never locked out an IND-DCC in connection with a major repair activity on 

an induction lane, and that the MPEs understood MMO-037-15 prohibited doing so. The practice 

of the MPEs, whose understanding and judgment on the application of energy control practices 

their supervisors generally deferred, is supported by the provisions of Attachment 4 that locking 

out the IND-MCC “will remove 480 VAC from the conveyors of the Induction section of the 

machine, preventing motion of all conveyors in the Induction section in order to facilitate belt, 

bearing, or roller replacement.” (See Findings of Fact ¶ 39 [emphasis added]). In the rebuild of 

belt I-3-2, the belt, bearings, and rollers were rebuilt or replaced, as contemplated by the quoted 

provision in Attachment 4. (See Findings of Fact ¶ 41). The historical practice of the MPEs not 

to lock out the IND-DCC for major work on an induction lane is further bolstered by the provisions 

of MS-202 that instruct MPEs not to bypass the interlock feature of the access gates, which they 

were required to do in order to enable induction lanes 1 and 2 to process mail while they worked 

on induction lane 3. (See Findings of Fact ¶ 14). 

Moreover, the indecisive “recommended/not recommended” language used in Attachment 

4 is laden with ambiguity and is poorly suited to meet the LOTO standard’s requirement that 

written procedures be set forth “clearly and specifically.” § 1910.147(c)(4)(ii). Instructing that a 

certain energy control procedure is “not recommended,” without further explication, could 

reasonably be interpreted to convey to the MPEs the subtextual meaning that “this may be 
34 

dangerous.” Similarly, instructing that a certain energy control procedure is “recommended,” 

without further explication, can reasonably be interpreted to mean that “this procedure is safer” 

and ought to be utilized instead of the procedure that is expressly “not recommended.” 

Lastly, as the Secretary argues, the only logical reading of Attachment 4 is that it mandates 

locking out the IND-MCC for “conveyor repairs” and “belt, bearing, and roller replacement” of 

an induction lane’s inside belts. This is because if such activities may be accomplished by locking 

out the IND-DCC instead of the IND-MCC, then the procedure described in Attachment 4 for 

locking out the IND-MCC for those activities would never have occasion to be used. Such a 

construction would render those provisions of Attachment 4 superfluous, having no operative 

effect. (Sec’y Reply Br. 11). 

3. No Evidence USPS Had Unwritten Established LOTO Procedures. 

USPS acknowledges that locking out an IND-DCC for the repair of any of an induction 

lane’s “inside belts” (like belt I-3-2) is not set forth in any written LOTO procedure. (Resp’t Br. 

5). USPS argues nonetheless that doing so was an existing or established LOTO procedure that 

was excepted from the requirement of § 1910.147(c)(4)(i) that LOTO procedures be 

“documented,” pursuant to a regulatory exception to that requirement. See 54 Fed. Reg. at 36670 

(stating that “OSHA believes that because of the need to follow the steps in the energy control 

procedure carefully and specifically, and the number of variables involved in controlling hazardous 

energy, a documented procedure is necessary for most energy control situations”). The exception 

to the requirement that procedures be in written form is set forth in a “Note” to § 1910.147(c)(4)(i) 

that provides as follows: 

NOTE: Exception: The employer need not document the required 

procedure for a particular machine or equipment, when all of the 

following elements exist: (1) The machine or equipment has no 

potential for stored or residual energy or reaccumulation of stored 
35 

energy after shut down which could endanger employees; (2) the 

machine or equipment has a single energy source which can be 

readily identified and isolated; (3) the isolation and locking out of 

that energy source will completely deenergize and deactivate the 

machine or equipment; (4) the machine or equipment is isolated from 

that energy source and locked out during servicing or maintenance; 

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

the lockout device is under the exclusive control of the authorized 

employee performing the servicing or maintenance; (7) the servicing 

or maintenance does not create hazards for other employees; and (8) 

the employer, in utilizing this exception, has had no accidents 

involving the unexpected activation or reenergization of the machine 

or equipment during servicing or maintenance. 

USPS bore the burden of proving that it is entitled to the benefit of this exception. 

Westvaco Corp., 16 BNA OSHC 1374, 1377 (90–1341, 1993) (“The party claiming the benefit of 

an exception bears the burden of proving that it comes within that exception”). USPS failed to 

meet its burden for at least the following two reasons. 

a. The procedure used was not an “established” procedure for a belt rebuild.

The cited standard, § 1910.147(d)(2), requires that employers use the energy control 

procedures that the employer has “established for the machine or equipment” (regardless of 

whether such established procedures are in written form). There is no evidence that the unwritten 

lock out procedure that the MPEs were directed to utilize (to lock out the IND-DCC for the repair 

of an induction lane’s inside belt) had been “established,” or in other words was extant, before the 

MPEs were ordered to use it during the repair of belt I-3-2. See 54 Fed. Reg. at 36,666 (“The main 

thrust of the standard is to mandate the development, documentation and implementation of control 

procedures, and this is to be accomplished as outlined in paragraph (d) of the standard”). Rather, 

the great weight of the evidence is that the procedure had not been previously developed but was 

instead devised in the moment by the Center’s management, which was understandably concerned 

about the impact on productivity of shutting down the APPS during the repair. When MPEs 
36 

challenged the procedure, the Center’s acting plant manager telephoned the author of the 

MMO-037-15 (Mr. Thompson) with a view to validating that procedure. 

Mr. Thompson has vast technical expertise and experience with the APPS, but he does not 

regard himself to be an expert on compliance with OSHA standards. (T. 501). Mr. Thompson 

testified that when he advised Mr. Hotchkiss in that telephone conversation, he determined that 

the procedure that Hotchkiss described to him (locking out the IND-DCC-3 during the repair of 

belt I-3-2 while the APPS continued to process mail) was permissible “from a technical point of 

view” in that the MPEs performing the repairs would not be at risk of injury. (T. 505). But 

Thompson acknowledged that he did not then make any determination that the procedure complied 

with the provisions of MMO-037-15.6

 (T. 505). Rather, in a written report that Thompson 

prepared for the hearing, he stated that in assessing the procedure that Hotchkiss had described to 

him, he “did not find issue with local policy allowing for this repair using the method described.” 

(Ex. R-30 at 19). 

There is no credible evidence that during or before Thompson’s telephone conversation 

with Hotchkiss that he considered whether the procedure discussed was not required to be in 

writing because it qualified for the exception to the documentation requirement of 

§ 1910.147(c)(4)(i). (See T. 492-98). Although Thompson’s written report sets forth his belief 

that the procedure for locking out the IND-DCC for the repair of belt I-3-2 qualified for the 

exception to the LOTO standard’s “documentation” requirement in § 1910.147(c)(4)(i), there is 

6

 Thompson provided this testimony in a discovery deposition, with which he was 

effectively impeached at the hearing. (T. 505). That deposition testimony bears greater indicia of 

reliability and is accorded greater weight than that portion of his hearing testimony that was 

somewhat contrary (e.g., T. 504) to his deposition testimony on this point. Cf. Fed. R. Evid. 

801(d)(1)(A) (providing that a declarant’s prior inconsistent statement given under penalty of 

perjury in a deposition is not hearsay), and Fed. R. Evid. 801(d)(2) (providing that opposing party’s 

statement offered against that party is not hearsay). 
37 

nothing in Thompson’s written report or in his testimony declaring that Thompson had formulated 

that conclusion at any time before the OSHA investigation, or that he had even considered that 

issue in the course of his telephone conversation with Hotchkiss. (Ex. R-30 at 18-19; T. 492-98). 

It is more likely than not that Thompson considered that issue and formulated his opinion on it 

long after the repair of belt I-3-2 was completed, as part of his support of USPS’s defense in the 

matter (in which he testified as both “fact” witness and an expert witness, having been qualified 

without objection as an “expert on the APPS” [T. 445]). The absence of evidence as to when 

Thompson formulated his opinion regarding the regulatory exception to the requirement that 

procedures be written, coupled with his admitted lack of any special knowledge, expertise, or 

training in OSHA standards (T. 501), supports the conclusion that Thompson formulated this 

theory sometime after the belt repair was completed. 

Thompson testified further that in his drafting of MMO-037-15 (or in drafting a prior 

iteration) he made the considered decision not to include a procedure for locking out an IND-DCC 

for work done on the “inside” belts of an induction lane (belts 2, 3 and 4), because he believed that 

including that procedure in the document would have lengthened it and thereby made it 

“completely too burdensome for the field.” (T. 492). This testimony makes little sense, seems 

highly unlikely, and is given no weight. Just as Attachment 4 to the MMO contains a oneparagraph instruction directing that the adjoining conveyors in the FSD Subsystem and the Sorter 

Subsystem be locked out when work is being done on an induction lane’s “outside” belts (belts 1 

and 5—see the second “Warning” paragraph reflected in ¶ 39 of the Findings of Fact), a similarly 

concise or even somewhat longer instruction could have been included allowing for locking out 

only the IND-DCC for the repair of an inside belt (numbers 2, 3 or 4) without substantially 

lengthening or making more complex an already lengthy, detailed, and complex written procedure. 
38 

Such length and complexity seem nearly unavoidable in adequately documenting the LOTO 

procedures for the APPS considering the standard’s requirement that LOTO procedures be set 

forth “clearly and specifically.” § 1910.147(c)(4)(ii); see also 54 Fed. Reg. at 36,670 (commenting 

that the word “specific” in paragraph (c)(4) “emphasize[s] the need to have a detailed procedure, 

one which clearly and specifically outlines the steps to be followed,” and observing that 

“[o]vergeneralization can result in a document which has little or no utility to the employee who 

must follow the procedure”). 

Perhaps even more significantly, there is no evidence that any of the MPEs at the Center 

had ever been informed of, or trained on, this supposedly established but unwritten LOTO 

procedure prior to the repair of belt I-3-2. It would have been a logical impossibility for the MPEs 

to have used an unwritten procedure about which they had no prior knowledge or training. 

Based on Thompson’s testimony and his written report, it is reasonably inferable that when 

Thompson advised Hotchkiss on the telephone, that Thompson had concluded only that the 

procedure Hotchkiss described to him could be a permissible LOTO procedure adopted under 

“local policy,” and that Thompson did not analyze whether that procedure conformed to any 

established LOTO procedures that are applicable across the entire USPS (namely, the 

MMO-037-15 that Thompson had authored, or the MS-202 maintenance manual). 

The MMO-037-15 expressly allows for local policy to supplement its procedures, and the 

MS-202 repeatedly reminds MPEs to follow any such local procedures. The Center, however, has 

not developed or trained its MPEs on any local energy control procedures to augment either the 

MMO-037-15 or the MS-202. This is confirmed by uncontroverted testimony of MPEs that the 

procedure they were directed to use had not previously been used for a major repair involving the 

IND Subsystem such as the rebuild of belt I-3-2. (Findings of Fact ¶ 42). This is corroborated 
39 

further by the testimony of the Center’s maintenance manager (Pfanders) that “normal procedure” 

would have been for the APPS not to process mail during the repair of belt I-3-2.7

 (T. 563; 

Findings of Fact ¶ 44). Rather than endeavor to develop a local LOTO policy (and thereafter 

training employees on that local policy as would have been required by § 1910.147(c)(7)(iii)), the 

acting plant manager simply decreed that the belt repair would be conducted by locking out 

IND-DCC-3 while the APPS continued to process mail.8

 

b. The APPS does not qualify for the exception to the documentation requirement. 

In any event, even if locking out the IND-DCC for the repair of an induction lane’s inside 

belt had been an established unwritten procedure at the time of the repair, the procedure would not 

qualify for the exception to the documentation requirement of § 1910.147(c)(4)(i). USPS’s 

argument in support of the exception is grounded in its flawed argument, rejected supra, that 

induction lane 3 is a machine that is separate and independent of the APPS, and for which 

compliance with the LOTO standard would be assessed independently of the APPS. (See Resp’t 

Br. 4-5; Ex. R-30 at 18-19; T. 492-98). USPS has not met its burden to establish by a 

preponderance of the evidence that the APPS machine meets any of the eight elements of the 

exception to the documentation requirement of § 1910.147(c)(4)(i). 

7

 Mr. Pfanders gave that testimony in a discovery deposition, with which he was effectively 

impeached at the hearing. Like the deposition testimony of Mr. Thompson addressed in the 

preceding footnote, this deposition testimony bears greater indicia of reliability and is accorded 

greater weight than other of his hearing testimony that was somewhat contrary (e.g., T. 562) to the 

deposition testimony presented. 

8

 The acting plant manager ultimately allowed MPEs who believed the procedure was 

unsafe to opt out of participating in the repair. Cf. Armstrong Steel Erectors, Inc., 18 BNA OSHC 

1630, 1633, n.4 (No. 97-0250, 1999) (stating that “[r]esponsibility under the Act for ensuring that 

employees do not put themselves into any unsafe position rests ultimately upon each employer, 

not the employees, and employers may not shift their responsibility onto their employees”). 
40 

C. Employee Exposure Element. 

At the direction of the Center’s acting plant manager, MPEs repaired belt I-3-2 without 

using the established energy control procedures for the APPS. This is the violative condition to 

which uncontroverted evidence established that MPEs conducting the repairs were exposed, and 

about which they were reasonably concerned for their safety. See 54 Fed. Reg at 36675 (“Because 

their safety requires them to follow the steps of the procedure precisely, these employees must be 

properly trained, and that training must be reinforced to assure their continued proficiency”). 

USPS argues mightily that the MPEs were not exposed to risk of injury from hazardous energy 

while conducting the repairs with the IND-DCC-3 locked out and the APPS continuing to process 

mail. As is discussed infra in addressing whether the violation was proven to be “serious” within 

the meaning of section 17(k) of the Act, the Secretary failed to carry his burden to establish that 

there was substantial probability that death or serious physical harm could result from the violative 

condition proven here. But that failure of proof is not relevant to the matter of whether employees 

were exposed to or had access to that violative condition. Some MPEs at the Center were 

undoubtedly exposed. Cf. Bunge Corp. v. Sec'y of Labor, 638 F.2d 831, 834 (5th Cir. 1981) 

(observing that violation of a specification standard presumes a hazard and that whether the 

condition resulting from the violation of a specification standard was hazardous “is relevant only 

to whether the violation constitutes a ‘serious’ one”). 

D. Employer Knowledge Element.

The acting plant manager had actual knowledge of the violative condition because he 

ordered that it happen in the face of continuing protestations of MPEs that doing so violated 

USPS’s established energy control procedures. See Phoenix Roofing, Inc., 17 BNA OSHC 1076, 

1079-1080 (No. 90-2148, 1995) (an employer’s knowledge is directed to the physical condition 

that constitutes a violation) aff’d, 79 F.3d 1146 (5th Cir. 1996); Am. Eng’g & Dev. Corp., 23 BNA 
41 

OSHC 2093, 2095 (No. 10-0359, 2012) (knowledge may be imputed to the employer through its 

supervisory employee); Sanderson Farms, Inc. v. OSHRC, 964 F.3d 418, 428 (5th Cir. 2020) (“The 

Secretary need not prove that [the employer] understood that it was violating [the cited standard], 

but rather only awareness of the physical conditions constituting the violation.”) 

E. “Willful” Classification.

For a violation that is done “willfully,” section 17(a) of the Act allows a penalty of up to 

ten times the maximum penalty for a “serious” or an “other-than-serious” violation. 29 U.S.C. 

§ 666(a); 29 C.F.R. § 1903.15(d) (2017). A violation is “willful” where the cited employer either 

(1) acted in “conscious disregard” for the requirements of the Act, or (2) acted with “plain 

indifference” to employee safety. See A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d 1341, 1351 

(D.C. Cir. 2002) (observing that “conscious disregard” and “plain indifference” are alternative 

means of proving willfulness). 

Whether a violation is “willful” presents a question of fact. Bianchi Trison Corp. v. Chao, 

409 F.3d 196, 208 (3d Cir. 2005); Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 

2012) (determining that the Commission’s finding of willfulness lacked “substantial supporting 

evidence”). The Commission has described the contours of a “willful” violation as follows: 

A violation is willful if committed with intentional, knowing or 

voluntary disregard for the requirements of the Act or with plain 

indifference to employee safety. It is not enough for the Secretary to 

show that an employer was aware of conduct or conditions 

constituting a violation; such evidence is necessary to establish any 

violation, serious or nonserious. A willful violation is differentiated 

by a heightened awareness—of the illegality of the conduct or 

conditions—and by a state of mind—conscious disregard or plain 

indifference. There must be evidence that an employer knew of an 

applicable standard or provision prohibiting the conduct or condition 

and consciously disregarded the standard. Without such evidence of 

familiarity with the standard's terms, there must be evidence of such 

reckless disregard for employee safety or the requirements of the law 

generally that one can infer that if the employer had known of the 
42 

standard or provision, the employer would not have cared that the 

conduct or conditions violated it. It is therefore not enough for the 

Secretary simply to show carelessness or lack of diligence in 

discovering or eliminating a violation; nor is a willful charge justified 

if an employer has made a good faith effort to comply with a standard 

or eliminate a hazard, even though the employer's efforts are not 

entirely effective or complete. 

Williams Enters. Inc., 13 BNA OSHC 1249, 1256-57 (No. 85-355, 1987) (internal citations 

omitted).9 

"The hallmark of a willful violation is the employer's state of mind at the time of the 

violation." Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000), aff'd, 268 

F.3d 1123 (D.C. Cir. 2001). The Secretary bears “burden of proof to show the requisite state of 

mind for willfulness.” Stanley Roofing Co., 21 BNA OSHC 1462, 1466 (No. 03-0997, 2006). 

“Where the requisite state of mind is manifested through the actions of supervisory employees, it 

9 The Third Circuit and the D.C. Circuit are the two courts of appeals to which review of a 

final order of the Commission may be sought in this matter pursuant to section 11 of the Act. 29 

U.S.C. § 660. Both of those courts have described a “willful” violation using articulations that are 

slightly different from the Commission’s, but neither court has indicated that its respective 

articulation differs substantively from the Commission’s. For example, in Williams Enterprises

quoted above, the Commission expresses the “plain indifference” ground in terms of “indifference 

to employee safety” and also as “reckless disregard for employee safety or the requirements of the 

law generally.” 13 BNA OSHC at 1256-57. In contrast, the D.C. Circuit has expressed the “plain 

indifference” ground in terms of “indifference to the Act’s requirements.” See Dayton Tire v. 

Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 2012) (describing a willful violation to be “an act 

done voluntarily with either an intentional disregard of, or plain indifference to, the Act’s 

requirements”). Even so, the D.C. Circuit in Dayton Tire did not express any disagreement with 

the Commission’s “plain indifference to employee safety” formulation, which the Commission 

had recited in its underlying decision in that matter. Dayton Tire, 23 BNA OSHC 1247, 1266 (No. 

94–1374, 2010), rev’d on other grounds, 671 F.3d 1249 (D.C. Cir. 2012). Similarly, the Third 

Circuit has stated that its formulation of the standard for a “willful” violation does not differ 

substantively from that of the D.C. Circuit or other federal courts of appeals. See Babcock & 

Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3d Cir. 1980) (agreeing with D.C. Circuit’s decision 

in Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305 [D.C. Cir. 1978] that there is “little if any 

difference” between the Third Circuit’s approach to willfulness and the approaches of other 

courts). 
43 

is imputed to the employer to the same extent as would be a supervisor's knowledge of violative 

conditions.” Cont'l Roof Sys., Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997), citing Tampa 

Shipyards, 15 BNA OSHC 1533, 1539 (No. 86-360, 1992) (consolidated); see also Dayton Tire, 

23 BNA OSHC 1247, 1266 (No. 94–1374, 2010) (imputing plant safety manager’s state of mind 

to the employer), rev’d on other grounds, 671 F.3d 1249 (D.C. Cir. 2012); Donovan v. Williams 

Enters., Inc., 744 F.2d 170, 180 (D.C. Cir. 1984) (upholding willful citation where company 

president was aware of the standard and decided to forego compliance). “An employer’s motive 

for failing to comply with the Act’s requirements ... need not be evil or malicious in order to find 

a violation willful.” Kaspar Wire Works, Inc., 18 BNA OSHC at 2181. 

For the reasons described below, the Secretary has failed to meet his burden to establish 

that the violation was “willful” on grounds of either “conscious disregard” or “plain indifference.” 

1. Conscious Disregard.

To establish willfulness because of “conscious disregard” (sometimes called “intentional 

disregard”), “the Secretary must show that the employer (1) had a heightened awareness of the 

applicable standard or provision prohibiting the conduct or condition and (2) consciously 

disregarded the standard.” Jim Boyd Constr., Inc., 26 BNA OSHC 1109, 1111 (No. 11-2559, 

2016), quoting Fluor Daniel v. OSHRC, 295 F.3d 1232, 1239-40 (11th Cir. 2002). Put differently, 

the Secretary was required to prove that an official or employee whose state of mind is imputable 

to USPS “was actually aware, at the time of the violative act, that the act was unlawful.” Propellex 

Corp., 18 BNA OSHC 1677, 1684 (1999), quoted with approval in AJP Constr., Inc. v. Sec’y of 

Labor, 357 F.3d 70, 74 (D.C. Cir. 2004). The requisite state of mind must exist “with regard to 

the specific circumstances of the violation in issue.” Eric K. Ho, 20 BNA OSHC 1361, 1378 (No. 

98-1645, 2003) (consolidated), aff’d 401 F.3d 355 (5th Cir. 2005), partially overruled on other 

grounds by E. Smalis Painting Co., Inc., 22 BNA OSHC 1553, 1580-81 (No. 94-1979, 2009). 
44 

The two USPS officials whose states of mind bear on the issue of willfulness are (1) Mr. 

Hotchkiss, the acting plant manager, and (2) Mr. Thompson, the author of MMO-037-15 who is 

based in Oklahoma and whose expertise Mr. Hotchkiss sought out. Both Hotchkiss and Thompson 

had actual knowledge that USPS had established energy control procedures for the APPS and that 

USPS required MPEs to use those established procedures in the repair of belt I-3-2. USPS’s 

requirement that MPEs use those established procedures conforms to the requirement of the cited 

standard, § 1910.147(d)(2). 

While both Hotchkiss and Thompson thus possessed a heightened awareness of the 

applicable standard, the evidence is insufficient to establish that either of them, whether considered 

individually or in a collective sense, consciously disregarded the cited standard in connection with 

the repair of belt I-3-2. 

As for Thompson, even though he was based in Oklahoma and had no operational or 

supervisory responsibilities for the repair of Belt I-3-2, if the evidence showed that he intended to 

assist Hotchkiss in directing MPEs to use a LOTO procedure that Thompson knew was contrary 

to USPS’s established procedures (i.e., in violation of § 1910.147(d)(2)), or that he intended to 

induce Hotchkiss to do so, such a state of mind would evince conscious disregard that could be 

imputed to USPS. Cf. Donovan v. Williams Enters., Inc., 744 F.2d at 180 (upholding willful 

citation where company president was aware of the standard and decided to forego compliance). 

But the evidence fails to establish that Thompson possessed such knowledge or intent. 

Thompson became directly involved in the repair of belt I-3-2 by dint of Hotchkiss’s 

decision to seek him out and mine his knowledge and expertise about the APPS. Thompson’s only 

direct involvement in Hotchkiss’s decision to direct that the repair be done by locking out the 
45 

IND-DCC-3 while the APPS continued to run was their single telephone conversation on October 

18, 2016. 

Key to assessing whether Thompson acted in conscious disregard of the cited standard 

involves determining (1) the question that Hotchkiss posed to Thompson, and (2) Thompson’s 

response to that question. For the reasons described below, the most reasonable inference from 

the evidence is that Hotchkiss asked Thompson whether locking out the IND-DCC-3 for the repair 

would be safe. The weight of the evidence is insufficient to establish that Hotchkiss asked 

Thompson whether doing so conformed to established LOTO procedures. Similarly, the most 

reasonable inference from the evidence is that Thompson told Hotchkiss that he believed it would 

be safe to lock out the IND-DCC-3 for the repair. More importantly, the weight of the evidence 

does not support a finding that Thompson considered whether locking out the IND-DCC-3 for the 

repair conformed to the established LOTO procedures, or that Thompson had opined on that 

question in speaking with Hotchkiss. The evidence relating to the precise content of the telephone 

conversation is detailed below. 

There is no of evidence of the duration of the telephone conversation. And the only detailed 

evidence of the content of that conversation is provided by Thompson. Although the email that 

Hotchkiss sent to his staff after the telephone conversation strongly suggests Thompson had told 

him that locking out the IND-DCC-3 was consistent with existing LOTO procedures (see Findings 

of Fact ¶ 60), neither Hotchkiss nor Thompson testified that Thompson had said this in the 

telephone conversation. 

Hotchkiss did not describe in his testimony precisely what question he had posed to 

Thompson, nor did he testify to precisely what Thompson said to him. Rather, Hotchkiss testified 

simply that he contacted Thompson “for the purpose of making sure” that he “was doing the right 
46 

thing” (T. 426), and that based on Thompson’s response he believed he was “doing everything in 

accordance with regulations and safety and procedure that [he] needed to do.” (T. 425). In 

response to questions on cross-examination regarding whether Hotchkiss had described to 

Thompson the energy control procedures that managers were instructing MPEs to follow, 

Hotchkiss testified (in a tone that seemed to manifest some misplaced umbrage at having been 

asked): “No. I don't have to describe anything to Mike Thompson. He already knows it all.” 

When asked essentially the same question a second time, he reiterated: “I don't need to describe 

anything to Mike. He already knows it all.” (T. 435). 

Hotchkiss essentially deferred completely to Thompson with respect to any matter relating 

to the APPS. Hotchkiss believed (with ample justification) that Thompson “basically wrote every 

book there is to write on the APPS machine,” and so Hotchkiss testified his approach to the APPS 

is that he does not “do anything technical ... unless I get the advice of [Thompson].” (T. 424-25). 

In contrast to Hotchkiss’s testimony, Thompson provided some detail regarding the content 

of their telephone conversation. Thompson testified that Hotchkiss simply asked him “if it was 

possible, if it was safe to lockout at the induct” (T. 446), and that before answering he asked 

Hotchkiss a series of questions about the way the repair would be conducted. (T. 446-48). 

Thompson’s written report indicates that Thompson concluded that locking out at the IND-DCC-3 

would be permissible as a local LOTO procedure. (See Thompson Report, Ex. R-30 at 19, stating 

“I did not find issue with local policy allowing for this repair using the method described.”). There 

is nothing in Thompson’s written report that states that in their telephone conversation that he told 

Hotchkiss that locking out the IND-DCC-3 conformed with the requirements of MMO-037-15 or 

other USPS-wide LOTO procedure. (Ex. R-30). Rather, in deposition testimony (with which 

Thompson was effectively impeached at the hearing and which is more credible than his somewhat 
47 

contrary hearing testimony [see footnote 6, supra; T. 504-05]), Thompson admitted that he advised 

Hotchkiss “from a technical point of view” and that he “did not make [the] determination” that 

locking out the IND-DCC-3 “would comply with the requirements in MMO-037-15.” (T. 505). 

The whole of the evidence establishes that Thompson’s response to Hotchkiss’s inquiry 

was grounded in Thompson’s belief that MMO-037-15 permitted the Center to develop and 

implement a local LOTO procedure that would allow for the lock out of the IND-DCC for the 

repair of an induction lane’s “inside” belts (belts 2, 3 or 4). (See Findings of Fact ¶ 58). 

Attachment 4 provides that locking out the IND-MCC for “conveyor repairs” and “to 

facilitate belt, bearing or roller replacement” (all of which was done in connection with the repair 

of belt I-3-2) is “recommended” and that locking out the IND-DCC is “not recommended.”10 

Thompson could have reasonably concluded that under the circumstances that Hotchkiss described 

to him, locking out at the IND-DCC-3 would not violate the letter of MMO-037-15 because the 

MMO did not prohibit employing that means of energy control, but rather stated only that doing 

so was “not recommended.”11 There is no evidence that Thompson was nearly as familiar with 

10 In his testimony, Thompson described his reasons for using this “recommended/not 

recommended” language in Attachment 4. (T. 507-13). The reasons he gave are not at all selfevident from the text of MMO-037-15. Rather, his testimony indicates his implicit recognition 

that the objective meaning of this language in Attachment 4 did not reflect his subjective intent 

when he wrote it. In other words, Thompson did not mean for Attachment 4 to say what it actually 

says. Thompson testified that he originally utilized that “recommended/not recommended” 

language in drafting Attachment 2, which relates to the FSD Subsystem, and that for the sake of 

consistent language he reprised that same language in Attachment 4. He testified that he did not 

intend that language to apply to the repair of the “inside” induction lane conveyor belts (belts 2, 3 

and 4), but that intent simply is not apparent in the actual language he used in Attachment 4. (T. 

511-12; Ex. R-30 at 34-36). 

11 Section 1910.147(c)(4)(ii) of the LOTO standard requires that LOTO procedures 

“clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be 

utilized for the control of hazardous energy.” (emphasis added). The indecisive 

“recommended/not recommended” language employed in Attachment 4 of MMO-037-15 seems 
48 

the provisions of the voluminous maintenance manual, the MS-202, as he was with MMO-037-15, 

which he wrote. The MS-202 contains step-by-step actions for certain maintenance activities that 

had to have been performed as part of completing the repair of belt I-3-2. For some of those 

maintenance activities, the MS-202 instructed locking out the IND-MCC, as well as instructing 

MPEs to follow any local LOTO procedures. Assuming Thompson was recalling the 

“recommended/not recommended” language that he used in MMO-037-15 when he spoke to 

Hotchkiss, there is no evidence to support the finding that he also had a present awareness that 

provisions in the MS-202 instructed MPEs to lock out the IND-MCC for at least some aspects of 

the belt repair. The Center could conceivably have developed a local LOTO policy consistent with 

MMO-037-15 and MS-202 that would have allowed for locking out the IND-DCC for this type of 

conveyor repair.12 It is apparent from Thompson’s written report that he contemplated the Center 

repairing belt I-3-2 under a such local procedure, which he believed would be a safe procedure. 

neither particularly “clear” nor “specific,” and that language seems to have been a substantial 

factor in the chain of events leading to the violation here. However, the Secretary did not cite 

USPS for violating § 1910.147(c)(4)(ii), and USPS’s conformance to the requirements of that 

provision of the LOTO standard (which certainly is a performance-oriented provision) is not 

adjudicated herein. 

12 If the Center’s management had endeavored to develop and implement a local LOTO 

procedure that permitted locking out an IND-DCC for the repair of an induction lane’s “inside” 

belt, it should be noted that this decision does not find that any such local procedure would 

necessarily have conformed to the requirements of the LOTO standard. This decision simply 

recognizes that it was at least plausible on this record that such a local LOTO procedure might 

have been appropriately developed and implemented, and that if this had been done before the 

repair of belt I-3-2, the violation here of USPS not using its established LOTO procedures in the 

repair would not have been proven. Cf. T. 387-90 (testimony of the OSHA assistant area director 

that was critical of USPS’s failure to formally develop, implement, and train employees on the 

LOTO procedure the MPEs were directed to use in the belt repair). 
49 

For these reasons, the evidence is insufficient to establish that Thompson manifested 

conscious or intentional disregard of the requirements of § 1910.147(d)(2) when he opined to 

Hotchkiss that the repair of Belt I-3-2 could be done safely by locking out the IND-DCC-3. 

As for Hotchkiss, he either (1) accurately understood what Thompson said to him (that the 

repair could be done safely by locking out the IND-DCC-3) and then deliberately mischaracterized 

Thompson to have said that USPS’s established LOTO procedures allowed for locking out the 

IND-DCC for the belt repair, (2) recklessly misconstrued what Thompson said, or (3) carelessly 

misconstrued what Thompson said. The evidence is insufficient to establish that Hotchkiss 

deliberately mischaracterized what Thompson told him. The evidence is also insufficient to 

establish that Hotchkiss was “actually aware” at the time that he ordered the repair be done by 

locking out the IND-DCC-3, that USPS’s established LOTO procedures prescribed otherwise. See 

Propellex Corp., 18 BNA OSHC at 1684 (proving conscious disregard requires establishing the 

employer “was actually aware, at the time of the violative act, that the act was unlawful”). 

In view of the indecisive language used in Attachment 4 about locking out the IND-MCC 

(“recommended”) versus locking out the IND-DCC (“not recommended”) for “conveyor repairs” 

and “belt, bearing, or roller replacement” in the IND Subsystem, and considering further that there 

is no evidence that Hotchkiss was actually aware that some provisions of the voluminous MS-202 

maintenance manual identified the IND-MCC to be locked out for certain maintenance actions that 

were integral to the belt repair, the whole of the evidence fails to establish that in directing the 

IND-DCC-3 be locked out for the repair of belt I-3-2 Hotchkiss was actually aware that established 

LOTO procedures did not permit doing so. The evidence is thus insufficient to establish that 

Hotchkiss consciously disregarded the requirements of the cited standard. 
50 

2. Plain Indifference. 

A cited employer that is aware of the cited standard but has not been shown to have 

consciously disregarded it, may nevertheless be found to have willfully violated the standard upon 

a showing that the employer acted with plain indifference to employee safety or to the requirements 

of the Act. Dayton Tire, 671 F.3d at 1256-57 (assessing whether an employer with a heightened 

awareness of the cited LOTO standard was plainly indifferent to the requirements of the Act). The 

D.C. Circuit has remarked that “it takes a lot to be plainly indifferent.” Id. at 1256. 

As regards Thompson, the evidence is insufficient to establish that in his communications 

with Hotchkiss he was plainly indifferent to the requirements of the Act or employee safety. 

Thompson’s role was that of consultant to Hotchkiss, and he had no operational responsibility for 

the Center’s maintenance operations or its use of established LOTO procedures. The evidence 

establishes that in advising Hotchkiss, Thompson believed that locking out the IND-DCC-3 for 

the repair of belt I-3-2 would not expose MPEs to the risk of injury from hazardous energy and 

that doing so would be a permissible local LOTO procedure. (T. 445-48; Ex. R-30 at 19, stating 

“I did not find issue with local policy allowing for this repair using the method described”). As 

discussed above, the evidence does not establish that he advised Hotchkiss that doing so was 

permitted under the established USPS-wide LOTO procedures (i.e., MMO-037-15 and MS-202). 

Hotchkiss, the acting plant manager, had operational responsibility for the belt repair and 

assuring that MPEs used established LOTO procedures for that repair. When MPEs raised safety 

concerns, Hotchkiss took the initiative to consult with the author of the APPS-specific LOTO 

procedure, who expressed the view that locking out the IND-DCC-3 during the repair of Belt I-3-2 

would not expose employees to the risk of injury from hazardous energy. Hotchkiss seems to have 

heard what he wanted to hear from Thompson. He did not endeavor to make an independent 

judgment that locking out the IND-DCC-3 for the repair was permitted by established LOTO 
51 

procedures. Rather, he seemed to assume simply that it was, since the author of the procedure had 

told him that doing so was safe. (See T. 434-35). Had Hotchkiss exercised reasonable diligence, 

he ought to have comprehended that his directive to lock out the IND-DCC-3 was contrary to the 

APPS-specific LOTO procedures, notwithstanding Thompson’s conclusion that doing so would 

be safe. Cf. Dayton Tire, 671 F.3d at 1255-56 (reversing Commission’s finding that a safety 

manager who had relied on a LOTO assessment conducted by her predecessor, and who had not 

conducted her own independent assessment, was “plainly indifferent” to the requirements of the 

Act). While Hotchkiss seems to have erroneously understood Thompson to have said that locking 

out the IND-DCC-3 for the repair of Belt I-3-2 would not contravene the established 

APPS-specific LOTO procedures, the circumstantial evidence is insufficient to establish that 

Hotchkiss was reckless in arriving at that erroneous understanding. The evidence is thus 

insufficient to establish that Hotchkiss acted with plain indifference to the requirements of the Act 

or employee safety. See Williams Enters. Inc., 13 BNA OSHC at1256-57 (expressing the “plain 

indifference” ground in terms of “reckless disregard for employee safety”); see also Dukane 

Precast, Inc. v. Perez, 785 F.3d 252, 256 (7th Cir. 2015) (stating that a showing of “plain 

indifference” requires proof that the employer “was reckless in the most commonly understood 

sense of the word”); cf. Dayton Tire, 671 F.3d at 1256-57 (noting that while a safety manager 

“could have done more” in response to employee concerns regarding LOTO, “she did not do 

nothing,” and that while the safety manager’s review of her employer’s LOTO program done at 

the urging of a senior corporate safety official “may not have been as thorough as the Commission 

would have liked, it did not display plain indifference”). 

F. “Serious” Classification. 

The Secretary’s complaint alleged that in addition to the violation having been “willful,” it 

was also “serious.” (Complaint ¶ 6). Section 17(k) of the Act provides that a violation is “serious” 
52 

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

violative condition or practice. 29 U.S.C. § 666(k); Consol. Freightways Corp., 15 BNA OSHC 

1317, 1324 (No. 86-351, 1991). “This does not mean that the occurrence of an accident must be 

a substantially probable result of the violative condition but, rather, that a serious injury is the 

likely result if an accident does occur.” Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31 

(No. 97-0469, 2003) (consolidated) (citation omitted); see also Sec’y of Labor v. Trinity Indus., 

504 F.3d 397, 401 (3d Cir. 2007). 

In contesting the citation, USPS put considerable effort into backing its assertion that the 

MPEs who repaired belt I-3-2 with the IND-DCC-3 locked out and the APPS continuing to process 

mail were not a risk of being injured. The undersigned agrees that the Secretary failed to carry his 

burden to establish a substantial probability that the precise LOTO violation established here was 

likely to result in an employee sustaining serious physical harm in the event of an accident. While 

there is reliable evidence that MPEs working on the belt repair while the APPS continued to 

operate would have been exposed to a struck-by hazard from mail items that might tumble over 

the guards of adjacent conveyors (about 66 inches above floor level), that evidence fails to establish 

that such a struck-by hazard was likely to result in death or serious physical harm, such as a severe 

laceration. (T. 475-76). See Lisbon Contractors, Inc., 5 BNA OSHC 1741, 1742 (No. 11097, 

1977) (stating that bruises and contusions do not support a classification of “serious”); Kaspar 

Electroplating Corp., 16 BNA OSHC 1517, 1522 (No. 90-2866, 1993) (severe laceration 

constitutes serious physical harm); S. Hens, Inc. v. OSHRC, 930 F.3d 667, 682 (5th Cir. 2019) 

(“We have construed ‘serious’ injury to include broken bones, crushed toes, and chemical burns”). 

Similarly, the evidence of exposure to adjacent moving conveyors and exposure to flying machine 

parts in the event of certain machine failures was insufficiently weighty to establish the violation 
53 

as serious, particularly in view of reasonably plausible countervailing evidence presented by 

USPS. (E.g., T. 470-80). 

Since the violation has not been established to have been “serious” as defined in section 

17(k) of the Act, it is deemed “not to be of a serious nature” (in the language of § 17(c) of the Act), 

also more often described as “other-than-serious” (in the terminology of the Secretary). A 

violation is considered other-than-serious when “there is a direct and immediate relationship 

between the violative condition and occupational safety and health, but not of such relationship 

that a resultant injury or illness is death or serious physical harm.” Crescent Wharf and Warehouse 

Co., 1 BNA OSHC 1219, 1222 (No. 1, 1973). 

G. Penalty. 

Section 17(c) of the Act provides that a “penalty may be assessed” for an other-than-serious 

violation (in contrast to section 17(b), which provides that a penalty for a serious violation “shall 

be assessed”). 29 U.S.C. § 666(b)–(c). The maximum penalty for the other-than-serious violation 

established here is $12,675. 29 C.F.R. § 1903.15(d)(4) (2017). The Commission and its judges 

conduct de novo penalty determinations and have full discretion to assess penalties based on the 

facts of each case and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135, 1138 

(No. 93-0239, 1995) aff’d, 73 F.3d 1466 (8th Cir. 1996); Allied Structural Steel, 2 BNA OSHC 

1457, 1458 (No. 1681, 1975). 

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the 

Commission give “due consideration” to four criteria: the size of the employer’s business, the 

gravity of the violation, the employer’s good faith, and its prior history of violations. Specialists 

of the S., Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990). Gravity is the primary consideration 

among these four statutory criteria and is determined by “such matters as the number of employees 
54 

exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that 

any injury would result.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). 

Even though this violation was not proven to have been “serious” within the meaning of 

section 17(k) of the Act, the “other-than-serious” violation established here was grave. There can 

be little doubt that the Center’s management would have deferred to the MPEs judgment on what 

to lock out if that judgment had allowed for the APPS to continue to process mail during the repair. 

The assistant area director of OSHA’s Allentown, Pennsylvania, area office provided a lucid 

description of the safety dangers inherent in an employer overriding its established LOTO 

procedures. (T. 387-90). His stated concerns echo commentary in the LOTO standard’s preamble, 

wherein OSHA described management’s vital role in maintaining the integrity of a LOTO program 

by promoting adherence to established procedures: 

OSHA believes that employee understanding and utilization of a 

standardized procedure are critical to the success of a lockout or 

tagout program. Without these elements and commitment from 

management, the effectiveness of the program can be seriously 

compromised. Proper training in the procedure, and explanation of 

how it works and why, are crucial to its implementation by the 

employees. 

* * * * 

The development and documentation of energy control procedures 

is of little use unless the employer requires all authorized employees 

to utilize the procedures that have been provided whenever they are 

servicing or maintaining machines or equipment. 

54 Fed. Reg. at 36,653 and 36,667. And in the context of describing successful tagout programs, 

the preamble noted the importance of both supervisor and employee discipline in maintaining the 

integrity of such a program: “[D]iscipline ... appears to be the most critical to the success of these 

programs; the companies with effective tagout programs apply various types of disciplinary action 

to both supervisors and employees who violate the tagout procedures.” 54 Fed. Reg. at 36,655. 
55 

The Center’s MPEs had been well trained to follow established LOTO procedures or risk 

discipline for failing to do so. Management’s override of those established procedures for the 

repair of belt I-3-2 gave rise to legitimate concerns by MPEs that the procedure they were being 

required to use was unsafe. Such violative conduct undermines employee reverence for and 

confidence in a LOTO program, to the serious detriment of the efficacy and integrity of this 

important program. 

In view of the size of USPS and the many complex machines that it operates and maintains 

throughout the country, the maximum penalty available for this grave other-than-serious violation 

is appropriate. Accordingly, a penalty of $12,675 is assessed. 

ORDER 

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

with Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). If any finding of fact is in actuality 

a conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed 

so, any label to the contrary notwithstanding. 

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that 

Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1910.147(d)(2) is AFFIRMED, is classified 

as an “other-than-serious” violation, and that a penalty of $12,675 is ASSESSED. 

_/s/ ________________

WILLIAM S. COLEMAN 

Administrative Law Judge 

Dated: February 16, 2021