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. 20-0134

HUEN ELECTRIC, INC.,

Respondent.

FINAL ORDER

On September 13, 2022, the parties submitted a Joint Notification of Full Settlement 

pursuant to Commission Rule 100, 29 C.F.R. § 2200.100, stating that they have resolved all the 

contested citation items in this case.1

 Since the parties have agreed to terminate the proceeding, 

the case is hereby DISMISSED. 

SO ORDERED.

BY DIRECTION OF THE COMMISSION

Dated: October 3, 2022 /s/

John X. Cerveny

Executive Secretary 

1 The judge’s decision in this case was docketed on August 29, 2022, and, if not directed for review, 

would have become a final order of the Commission on September 28, 2022. See 29 U.S.C. 

§ 661(j).
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NO. 20-0134

 

Appearances:

Travis Gosselin, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois

 For Complainant

Matthew W. Horn, Esq. & Michael F. Cocciemiglio, Smith Amundsen LLC, Chicago, Illinois

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

On September 30, 2019, Respondent was removing an electrical splice box from a vault

approximately three feet below the floor at the Chicago Museum of Science and Industry in 

Chicago, Illinois. (Tr. 54; Exs. J-17, 20, 22). During the process of removing the splice box, the 

stacker truck Respondent used to lift it moved towards the vault, and the splice box and stacker 

truck fell in. (Ex. J-5). One of Respondent’s employees was pinned against the wall of the vault

and suffered serious injuries as a result of the incident. (Tr. 99, 100, 124).

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

HUEN ELECTRIC, INC., 

 

 Respondent.
2

Respondent reported the incident to OSHA, and Compliance Safety and Health Officer 

(CSHO) Anton Stephens traveled to the accident site the same day to begin an investigation.

1 (Tr. 

52). Over the course of three days, CSHO Stephens reviewed the site of the accident, conducted 

interviews, inspected the stacker truck, took measurements of the truck and vault, and reviewed 

surveillance video of the accident. (Tr. 52, 55-57; Ex. C-5). As a result of his inspection, CSHO 

Stephens recommended, and Complainant issued, a Citation and Notification of Penalty. (Ex. J1). In the Citation, Complainant alleged Respondent committed two serious violations of the 

Occupational Safety and Health Act and proposed a combined total penalty of $23,868. 

Respondent filed a timely Notice of Contest. 

A trial was held in Chicago, Illinois over the course of two days, starting on November 30, 

2022. The following individuals testified: (1) CSHO Anton Stephens; (2) John Johnson, 

Complainant’s expert; (3) Anthony Bond, Respondent’s expert; and (4) John Kane, the stacker 

truck operator and general foreman for the Chicago Museum project. Both parties submitted posttrial briefs for the Court’s review. Based on its review of the testimony, record evidence, and 

applicable law, the Court issues the following Decision and Order.

Jurisdiction & Stipulations

The parties agreed to multiple factual and jurisdictional stipulations, including that the 

Commission has jurisdiction over this proceeding pursuant to Section 10(c) of the Act and that, at 

all times relevant to this proceeding, Respondent was an employer engaged in a business and 

industry affecting interstate commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 

1. In the time since the events of this incident, Mr. Stephens was promoted to Assistant Area Director of OSHA’s

Chicago South Office. (Tr. 49-50). For the purposes of this case, however, the Court will refer to him as CSHO 

Stephens.
3

U.S.C. § 652(5). See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). The parties’ stipulations 

are reproduced below:

1. The Occupational Safety and Health Review Commission has jurisdiction over this 

matter.

2. Respondent is, and was at all relevant times, a corporation with an office and place of 

business at 801 W. 16th Street, Broadview, Illinois 60155.

3. At all times relevant to this matter, Respondent had a workplace at 5700 S. Lake Shore 

Drive, Chicago, Illinois 60637.

4. Respondent is, and was at all relevant times, engaged in the electrical contracting 

industry.

5. At all relevant times, Respondent engaged in a business affecting commerce by handling 

goods or materials that had been moved in commerce.

6. On September 30, 2019, employees of Respondent were removing and replacing a splice 

box from below grade at the Museum of Science and Industry at 5700 S. Lake Shore 

Drives, Chicago, Illinois (the “Project”).

7. John Kane was the General Foreman for the Project.

8. As General Foreman for the Project, Mr. Kane had oversight of the Project and directed 

the crew involved in the Project.

9. The crew on the Project consisted of John Kane, General Foreman; Todd Scott, 

Journeyman; Tony Rebellato, Jr., Journeyman; and James Conerty, Electrician. All 

members of the crew were employees of Huen Electric, Inc., as of September 30, 2019.

10. On September 30, 2019, John Kane operated a Toyota 6BWC15 Electric Counter 

Balanced Stacker Truck (hereinafter the “stacker” or “stacker truck”).

11. The splice box weighed 1,370 pounds.

12. The stacker truck itself—less the battery—weighed 5,465 pounds.

13. The stacker truck battery weighed between 950 and 1375 pounds. 

(Tr. 17-18). 
4

Factual Background

Respondent’s Work at the Museum

 Respondent is an electrical contractor who was hired to upgrade the electrical system at the 

Chicago Museum of Science and Industry. (Jt. Stip. Nos. 4, 6; Tr. 54). According to John Kane, 

some of the electrical cables and equipment had been in place for over 100 years. (Tr. 396). Among 

the items that needed to be removed were splice boxes located below the floor of the museum. (Tr. 

396). Kane testified the plan was to disconnect the existing cables from the splice boxes, remove 

the splice boxes, temporarily re-connect the existing cables, and then, ultimately, replace the old 

cables with new ones. (Tr. 396-97). This required shutting off power at locations throughout the 

museum. (Tr. 402). To minimize interruptions, Respondent’s crew worked at night when the 

museum was closed. (Tr. 402). Prior to the incident described briefly above, Respondent’s crew 

removed four splice boxes from the vaults below the floor of the museum at a rate of approximately 

one splice box every one or two months. (Tr. 403). The incident resulting in the Citation occurred 

during the removal of the fifth, and largest, of the splice boxes. 

Removing the Splice Boxes

The first four splice boxes were about half the size of the splice box they attempted to 

remove on September 30, 2019. (Tr. 360). According to Kane, he estimated the smaller boxes each

weighed approximately 500-600 pounds, and the larger box he estimated weighed about 1,000 

pounds.

2 (Tr. 359). Kane and his crew used virtually the same process to remove the smaller boxes 

as they did with the larger splice box. To access the below-ground vaults where the splice boxes

were located, Respondent had to remove two-foot by three-foot concrete floor panels. Initially, 

Respondent removed the panels by hand, but, after observing museum personnel use their own 

2. In reality, the larger splice box weight 1,370 pounds. (Jt. Stip. No. 11). 
5

pallet stacker to remove the covers from the vaults, Kane followed suit and removed the covers 

with a pallet stacker Respondent had rented for the job.3 (Tr. 336). Once the cover was removed, 

the crew wrapped straps around the splice boxes and removed them from the vaults, which were 

approximately 3.5 feet deep, using the rented stacker forklift. (Tr. 335-336). 

The process to remove the larger splice box was, in general, the same as the process Kane 

and his crew used to remove the smaller splice boxes; however, there were some notable 

differences. First, Kane did not have the rental stacker at his disposal, so, with the permission of 

the museum’s project manager, he borrowed the museum’s Toyota stacker truck. (Tr. 337). 

Second, Kane testified he and his crew engaged in a fair amount of planning due to the difference 

in size and limited space. (Tr. 343). According to Kane, the planning started a couple of weeks in 

advance, and included measurements of the vault, the splice box, and available head room for the 

lift; reviewing the different stacker truck’s manual; and comparing the capacity of the stacker

(2750 pounds) to the approximate value of the splice box, which he estimated to be around 1000 

pounds. (Tr. 343-344, 359-360, 411). In addition, Kane testified he removed the top of the splice 

box to observe its contents and determine the location of the load center. (Tr. 399). Third, because 

he had to borrow the museum’s stacker truck, he had to retrieve it from its charging station on the 

second floor, take it down the freight elevator, and drive it to where the splice box was located. 

(Tr. 410-411). Third, due to the size of the box, the limited space available, and the placement of 

a center brace in the vault, Kane needed to lift the box on its edge before it could be lifted out of 

the vault. (Tr. 349).

3. At trial there was some confusion over how the first four boxes were removed, because CSHO Stephens initially 

testified the boxes themselves had been removed by hand. (Tr. 133-134). Later in his testimony, CSHO Stephens 

testified Respondent used a rented pallet stacker. (Tr. 136). The discrepancy in CSHO Stephens’ testimony is likely 

due to statements made about how the crew initially removed the vault covers, or, as Kane testified at one point, how 

they unsuccessfully attempted to remove one of the splice boxes by hand. (Tr. 404). 
6

Prior to the lift, Kane and his crew discussed how the lift would be accomplished. (Tr. 

422). The first step in the process required the crew to get into the open sub-floor vault and use 

pry bars to lift each side of the splice box so the straps could be wrapped around it in a choker 

configuration. (Tr. 340; Ex. J-5, J-25). Once the straps were in place, the loops at the end of the 

straps were attached to the lefthand fork, which Kane slowly raised until the box was resting on 

its side.4 (Tr. 425; Ex. J-5). Once the box was on its side, Kane directed the crew, who stayed in 

the vault during the entirety of the lift, to place one of the lifting strap loops on the other fork. (Tr. 

426, 436). This required Kane to back up the stacker so one loop could be removed from the left 

fork and slipped onto the right fork. (Tr. 436; Ex. J-5; J-25). In its lifting configuration, one loop 

was against the carriage of the stacker, while the other loop sat roughly 12 inches from the end of 

the opposite fork. (Tr. 426; Ex. J-25). Kane angled the forks upward to their maximum of 10 

degrees to prevent slippage and centered them over the top of the box, which placed the stacker 

roughly one foot away from the edge of the vault. (Tr. 350, 438). Based on Kane’s observation, he 

determined the load was centered and stable. (Tr. 427-28). 

Prior to beginning the lift, Kane had the parking brake engaged and checked both sides of 

the forks to make sure “everything’s set up and lined up the way I want[ed] it to be.” (Tr. 439). 

When Kane began to raise the box, two of the crew members had a hand on the box to keep the 

box steady in the event it started to sway,5 but, according to Kane and the surveillance video, the 

box never moved nor does the stacker show any signs of instability. (Tr. 440-41; Ex. J-5 at 05:20). 

Once Kane had raised the box above the threshold of the vault, Kane briefly paused before he 

released the parking brake by pressing down on the handle of the stacker. (Tr. 443; Ex. J-5 at 

4. The crew members also used pry bars to push the splice box as Kane was lifting with the forks. (Tr. 424-25). 

5. The other crew member was not visible in the video, but, according to Kane, he was standing roughly 4-5 feet away 

from the box, against the far wall of the vault. (Tr. 344-45).
7

05:25). To that point, the stacker truck did not show any sign of instability. (Tr. 377, 418; Ex. J-5 

at 5:20-5:25). After he release the brake, Kane testified, he rotated the throttle to move the stacker

truck away from the vault when he felt the stacker go forward instead (toward the open vault pit)

and tumble into the vault. (Tr. 444; Ex. J-5 at 05:25). As a result, one of the crew members was 

pinned to the opposite end of the vault. (Tr. 100; Ex. J-5). The crew member suffered serious 

injuries resulting in hospitalization and multiple surgeries. (Tr. 99). Kane testified he does not 

know what caused the stacker moved forward toward the vault but believes it was the result of a 

malfunction. (Tr. 446). 

Kane’s Training

According to Kane, he has operated Powered Industrial Trucks, such as forklifts and 

stacker trucks, for close to 30 years. (Tr. 420). In that time, he testified, he had never been in an 

accident until the night of September 30, 2019. (Tr. 446). In each of his jobs, Kane received some 

form of formal training, mostly on forklifts where the operator sits in a cab. Kane also received 

training on walk-behind stacker trucks in one of his previous jobs. The following is brief recap of 

Kane’s training in Powered Industrial Trucks up until the night of September 30, 2019. 

Kane’s first job was with a garage door company called Overdoors, where he worked from 

1987 to 1989. (Tr. 380). During that time, he operated pallet stackers and forklifts “on a daily 

basis.” (Tr. 379-80). While there, he received hands-on training from the shop foreman, which 

included how to safely operate the machines and maneuver around the warehouse and was 

followed by a written quiz at the end of the training. (Tr. 380). He classified the training as “pretty 

extensive”. (Tr. 380). Following his job at Overdoors, Kane started his electrical apprenticeship 

with Divan Brothers Electric in 1989, where he stayed until 2012. (Tr. 381). Eventually, Kane 

became a journeyman electrician and was promoted to foreman. (Tr. 381). During his time with 
8

Divan Brothers, he received classroom and hands-on training in forklift and stacker truck 

operation. (Tr. 384-85). Following his time at Divan, Kane went to Meade Electric for a period of 

two years, where he received training in, and operated, sit-down forklifts as part of his job; 

however, he did not operate pallet stackers during that time. (Tr. 387).

After his time at Meade, Kane started at Huen Electric (Respondent) in 2014, where he was 

made a general foreman after working there for a year. (Tr. 387). Respondent provided Kane with 

training in forklift operation in November 2017. (Tr. 388; Ex. J-3). The training included webbased training, as well as a driving course evaluation. (Ex. J-3). Kane testified Respondent did not 

provide similar training with respect to pallet stackers. (Tr. 367). Respondent’s counsel elicited 

testimony about numerous similarities between forklifts and pallet stackers, such as capacity, load 

handling, and pre-inspection; however, Kane testified, on both direct- and cross-examination, the

“biggest difference” is the steering, braking, and throttle. (Tr. 367-68, 389). These differences were

also noted by CSHO Stephens. (Tr. 102, 106). Though there is no evidence of formal training, 

Kane testified he had operated pallet stackers in his previous jobs, as well as during his 

employment with Respondent. According to Kane, in 2017, he was observed operating a pallet 

stacker during the construction of an Amazon fulfillment center by John Kovach, who performed 

Kane’s forklift Driving Course evaluation. (Tr. 394; Ex. J-3). 

With respect to the Toyota pallet stacker Kane used on the night of September 30, 2019, 

Kane testified he spent about an hour reviewing the operator’s manual on the Friday prior to the 

lift. (Tr. 411). Prior to the night of the lift, however, he had never operated the Toyota pallet 

stacker. (Tr. 405-406). Instead, on the night of the lift, Kane went to the second floor of the 

museum, conducted a visual inspection of the stacker, operated the controls to ensure it was 

working properly, and then drove it from its charging station down to the location of the splice 
9

box. (Tr. 410-411). According to Kane this involved maneuvering the stacker around some 

obstacles on the second floor, loading it onto the freight elevator 100 yards away, and driving it 

another 50-60 feet from the elevator to the location of the splice box. (Tr. 412). Kane testified 

this involved operating the stacker in both the fork-forward and fork-trailing positions. (Tr. 445). 

Discussion

To establish a prima facie violation of a specific standard promulgated under section 

5(a)(2) of the Act, the Secretary must prove by a preponderance of the evidence that: (1) the 

standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more 

of the employer’s employees had access to the cited conditions; and (4) the employer knew, or 

with the exercise of reasonable diligence could have known, of the violative conditions. Ormet 

Corporation, 14 BNA OSHC 2134 (No. 85-0531, 1991).

Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1910.178(l)(1)(i): The employer did not ensure that each powered 

industrial truck operator is competent to operate a powered industrial truck safely, 

as demonstrated by the successful completion of the training and evaluation 

specified in this paragraph (l):

a. On or about September 30, 2019, at the above addressed jobsite, an employee 

was operating a Toyota 6BWC15 Electric Counter Balanced Stacker Truck and 

had not been provided with training, including but not limited to formal 

instruction, practical training and an evaluation of the operators [sic]

performance, thereby exposing employees to struck by and crushing hazards.

Citation and Notification of Penalty at 6.

The Standard Applied

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

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

platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by 
10

electric motors or internal combustion engines.” 29 C.F.R. § 1910.178(a)(1). The stacker truck 

discussed above was a Toyota 6BWC15 Electric Counter Balanced Stacker Truck, which is a handoperated truck with an electric motor. The parties do not dispute Respondent was engaged in 

construction work at the museum. See id. § 1910.12 (defining construction work as work for 

“construction, alteration, and/or repair”). Section 1926.602(d), entitled Powered industrial truck 

operator training, includes a note, which states, “The requirements applicable to construction work 

under this paragraph are identical to those set forth at § 1910.178(l) of this chapter.” Id. § 

1910.602(d). Thus, the Court finds the cited standard applied. 

The Terms of the Standard Were Violated

The cited standard requires Respondent to “ensure that each powered industrial truck 

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

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

1910.178(l)(1)(i). Complainant contends Respondent failed to provide Kane training specific to 

the walk-behind stacker truck and, thus, failed to ensure he was competent to operate the Toyota 

stacker truck safely.6 Respondent, on the other hand, contends Complainant failed to prove a 

violation of the standard because (1) Kane had extensive, prior experience operating both sit-down 

forklifts and walk-behind stacker trucks; (2) Respondent provided Kane with training on sit-down 

forklifts that complied with § 1910.178(l)(2)(B)(ii); (3) Kane’s operation of a walk-behind stacker 

truck was “observed and evaluated” by Respondent’s safety director, John Kovach, during the 

6. Complainant engaged in a lengthy discussion regarding the Court’s obligation to defer to its reasonable 

interpretation of the standard. First, Complainant cites to Chevron U.S.A., Inc. v. National Resources Defense Council, 

467 U.S. 837, 842-43 (1984), for this proposition. This is incorrect, as Chevron’s analysis is limited to interpretation 

of statutes, not regulations. Second, as the Supreme Court’s recent holding in Kisor v. Wilkie indicates, deference is 

only due to the Secretary’s interpretation when the court finds the regulation is truly ambiguous after a review of the 

text, structure, history, and purpose of a regulation. Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Based on this analysis, 

the plain language of the cited standard is clear. Thus, the Court need not rely on the Secretary’s interpretation of the 

standard.
11

Amazon construction project; and (4) Complainant cited the wrong standard, because only 

refresher training was required under § 1910.178(l)(4)(ii)(D). Ultimately, the Court finds 

Complainant proved a violation of the standard because Respondent failed to provide training

compliant with the standard or otherwise evaluate and find Kane competent to operate the Toyota 

stacker truck. See id. §§ 1910.178(l)(2)(B)(ii), (l)(5).

The cited standard places the onus on Respondent to ensure its operators are competent to 

operate a particular powered industrial truck (PIT), which is satisfied through the completion of 

training and evaluation pursuant to the requirements of paragraph (l). See id. § 1910.178(l)(1)(i). 

This training must occur prior to permitting an employee to operate a PIT. Id. § 1910.178(l)(1)(ii). 

Regardless of whether the training at issue is an employee’s initial training on a PIT or refresher 

training on a related, yet different, PIT, such training must meet certain minimum requirements, 

including a combination of: (1) formal instruction, such as lecture, discussion, interactive computer 

learning, video tape, or written material; (2) practical training, such as demonstrations by the 

trainer and practical exercises by the trainee, and (3) an evaluation of the trainee’s performance in 

the workplace. See id. § 1910.178(l)(2)(ii). The cited standard lays out who may provide such 

training, the content of such training, and the conditions under which additional training is/is not 

necessary. See id. §§ 1910.178(l)(2)-(5). Finally, an employer, such as Respondent, is required to 

certify the operator has been trained and evaluated. Id. § 1910.178(l)(6). 

As noted above, Kane received some training on some models of forklifts and stacker 

trucks prior to his employment with Respondent, but the only documented training he received 

while working for Respondent was for Class IV Forklift operation. (Ex. J-3). According to Kane, 

this training only addressed sit-down forklifts and did not include a discussion of, or practical 

exercises on, a stacker truck like the Toyota used on September 30, 2019. Kane also testified there 
12

were distinct differences in the operation of the stacker truck vis-à-vis the forklift, such as the 

steering, braking, and throttle. Respondent contends Kane was “observed and evaluated” operating 

a stacker truck during previous work at an Amazon construction project; however, a review of 

Kane’s testimony only indicates he was “observed” operating the vehicle. (Tr. 394).

There was no evidence to indicate Kane received pallet stacker training that complied with 

the structure or substance of paragraph (l). Though Kane received training in the operation of both 

forklifts and pallet stackers from prior employers,

7 Respondent was still obliged to “ensure” Kane 

was competent to operate the Toyota pallet stacker safely “as demonstrated by the successful 

completion of the training and evaluation specified in this paragraph (l).” 29 C.F.R. § 

1910.178(l)(1)(i). Respondent could have fulfilled its obligation in several ways, depending on 

Kane’s prior experience and the training Respondent, itself, has provided. See id. §§ 

1910.178(l)(4)(ii)(D), (l)(5). There is no dispute Respondent provided Class IV Forklift training 

that was compliant with paragraph (l). Kane testified to the content of the training, and the parties 

submitted certification of both an electronic learning component and an evaluation of Kane’s 

practical skills, which comply with the content requirements found in paragraph (l)(3). But, Kane 

also testified there were notable differences in how the two machines operated, which means, at 

the very least, Respondent was required to provide training on those topics listed under paragraph 

(l)(3)(i) where Class IV forklifts and pallet stackers differ, such as those related to throttle, steering, 

and braking. See id. § 1910.178(l)(3)(i)(A), (C), (D), (E), (M); see also id. § 1910.178(l)(5) 

(indicating additional training in duplicative topics is not necessary “if operator has been evaluated 

and found competent to operate the truck safely”). There is no evidence Respondent provided 

7. In support of this proposition, Respondent cites to Trinity Industries, 15 BNA OSHC 1788 (No. 89-1791, 1992). 

However, Trinity was decided prior to the amendment of § 1910.178, wherein OSHA substantially changed an 

employer’s obligations with respect to powered industrial truck training. See Powered Industrial Truck Operator 

Training, 63 Fed. Reg. 66,238 (December 1, 1998). 
13

formal training, practical training, or observation and evaluation on the Toyota stacker truck 

consistent with the requirements of paragraph (l). Simply because he was observed operating a 

different model stacker truck at a previous job does not necessarily mean Respondent fulfilled its 

obligation to ensure Kane was competent “as demonstrated by the successful completion of the 

training and evaluation specified in this paragraph (l).” Id. § 1910.178(l)(1)(i). Cementing this fact 

is that Respondent certified Kane’s training in Class IV forklifts, in compliance with paragraph 

(l)(6), but did not do so with respect to pallet stackers. As stated earlier, Kane felt the need to 

review the manual for the Toyota stacker truck for an hour before use because he was not familiar 

with that model. There was no evidence of any evaluation to ensure that his one hour review and 

inspection of the machine was sufficient to establish his competency to operate the machine. 

Respondent contends Complainant cited the incorrect standard because, at most, Kane 

only needed refresher training on those topics not covered in his Class IV forklift training, which 

is covered by § 1910.178(l)(4)(D). First, Respondent did not raise in its Answer the claim that the 

general standard cited by Complainant was preempted by a more specific standard, nor did it seek 

to amend its Answer to assert such a defense. See Resp’t Answer, March 23, 2020. See also Spirit 

Aerosystems, Inc., 25 BNA OSHC 1093, 2014 WL 7434582 at *5 n.7 (noting Commission 

precedent that preemption by a more specific standard must be raised in employer’s answer or via 

amendment). Second, while there are similarities between a Class IV forklift and a pallet stacker, 

they are fairly general. A review of the truck-related topics and workplace-related topics discussed 

in paragraph (l)(3)(i) & (ii) illustrate a lengthy list of items that would require additional training 

based on the differences between the two PITs, as well as any training required based on the 

worksite. Third, regardless of whether the training required was initial training or refresher 

training, Respondent failed to abide by the requirements of paragraph (l)(2)(ii), which is equally 
14

applicable to initial and refresher training. The principal difference between initial and refresher 

training is that refresher training for a different type of truck need not duplicate training in the 

topics listed in paragraph (l)(3) and already received by operator in another training program. But,

such differences do not excuse Respondent from ensuring the non-duplicative training it provides 

complies with the three-part requirement of paragraph (l)(2)(ii). Nothing in the Secretary’s 

interpretive letters excuses an employer from complying with the training and evaluation

requirements, regardless of whether the training is initial or refresher.

Based on the foregoing, the Court finds that Complainant violated the terms of 29 C.F.R. 

§ 1910.178(l)(1)(i). 

Respondent’s Employees Were Exposed to the Hazard

To establish exposure under Commission precedent, the Secretary must show 

Respondent’s employees were actually exposed to the violative condition or that it is “reasonably 

predictable by operational necessity or otherwise (including inadvertence), that employees have 

been, are, or will be in the zone of danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 

(No. 93-1853, 1997). In this case, the members of Kane’s crew were exposed to a hazard because

they were working in proximity to Kane, whom Respondent had not trained or evaluated in the 

operation of the Toyota pallet stacker. The fact that one of the employees was ultimately injured 

in this case solidifies this fact. See, e.g., S&G Packaging Co., 19 BNA OSHC 1503, 2001 WL 

881250, *3 (No. 98-1107, 2001). 

Respondent Knew or Could Have Known of the Violation 

To prove this element, Complainant must show Respondent knew or, with the exercise of 

reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., 12 BNA 

OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the 
15

conditions constituting a violation, not whether it understood the conditions violated the Act. 

Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can 

prove knowledge of a corporate employer through the knowledge, actual or constructive, of its 

supervisory employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). 

Respondent contends Complainant failed to prove it had actual or constructive knowledge 

of the violation. First, Respondent argues it did not direct Kane to use the Toyota stacker truck 

and, therefore, it could not have known of the necessity to provide training to Kane. While there 

was no explicit testimony indicating Kane had been told to use a pallet stacker to remove the splice 

box, such is not necessary to prove this element. Although Kane chose to use the museum’s Toyota 

stacker truck for the lift on September 30, 2019, Respondent rented a different model stacker truck 

for the four previous lifts Kane and his crew performed in the 6 months prior. The Court finds it 

reasonable to infer Respondent was aware—or at least should have been aware—Kane used a 

stacker truck on multiple occasions prior to, and likely during, the lift on September 30, 2019. See 

Fluor Daniel, 19 BNA OSHC 1529, 1531 (Nos. 96-1729 & 96-1730, 2001) (“[T]he Commission 

may draw reasonable inferences from the evidence[.]” (citing Atlantic Battery Co., 16 BNA 

OSHC 2131, 2159 (No. 90-1747, 1994)). Therefore, Respondent was also aware of its obligation 

to train and evaluate Kane in the operation of a pallet stacker consistent with the dictates of § 

1910.178(l), which it failed to do. Respondent also contends Kane did not have knowledge of his 

own violative conduct, because he believed himself to be adequately experienced and trained. 

Even if Kane’s knowledge of his own conduct/training was the operative fact, Kane testified he 

was aware he had not received pallet stacker training from Respondent and that there were notable 

differences between the operation of different pallet stackers and forklifts. Based on these facts, 

Respondent’s claim regarding Kane’s knowledge of his own lack of training is rejected. 
16

Finally, Respondent cites to Fifth Circuit precedent, which requires Complainant to prove 

a supervisor’s actions were foreseeable when the supervisor is both the person with knowledge 

and the individual violating the standard. See Resp’t Br. at 21 (citing Angel Bros. Enterprises, Ltd. 

v. Walsh, 18 F.4th 827, 831 (5th Cir. 2021) (internal citations omitted)). There are two problems with 

this argument. First, this case did not occur in the Fifth Circuit. The Commission generally applies the 

precedent of the circuit court of appeals to which it is “highly probable” that the matter will 

be appealed, even though that precedent may differ from the Commission's precedent. See Dana 

Container, Inc., 25 BNA OSHC 1776, 1792 n.10 (No. 09-1184, 2015), aff'd, 847 F.3d 495 (7th Cir. 

2017). This case occurred in Chicago, Illinois, which is in the Seventh Circuit. Second, and more 

important, the Seventh Circuit approved of the Commission’s decision to impute a supervisor’s 

knowledge of his own misconduct in Dana Container v. Sec’y of Labor, 847 F.3d 495, 499-500 (7th 

Cir. 2017). Thus, Respondent’s argument is rejected.

The Violation Was Serious

A violation is classified as serious under the Act if “there is substantial probability that 

death or serious physical harm could result.” 29 U.S.C. § 666(k). Complainant need not show 

there was a substantial probability an accident would occur, only that if an accident did occur, 

serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-

0631, 2010). As noted above, Respondent’s employees worked in proximity to Kane while he 

operated the pallet stacker, and one of them was seriously injured by the machine tumbling into

the vault. Even if an injury did not occur, the failure to train an employee to “ensure [the operator] 

is competent to operate a powered industrial truck safely” exposes the individuals working in 

proximity to that employee to the possibility of serious injury. The stacker at issue in this case 

weighed over 6,000 pounds, and the splice box weighed an additional 1,300 pounds. If an accident 
17

involving the machine were to occur, the Court finds it reasonable to conclude the injuries resulting 

therefrom would be serious.

Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows: 

29 CFR 1926.602(c)(1)(ii): Modifications or additions which affect the capacity or 

safe operation of the equipment were made without the manufacturer’s written 

approval.

a. On or about September 30, 2019, at the above addressed jobsite, employees 

were exposed to struck-by hazards while lifting an electrical splice box using 

lifting straps placed around the forks of a Toyota 6BWC15 Electric Counter 

Balanced Stacker Truck. The lifting straps were an addition to and modification 

of the stacker truck that affected the capacity and/or safe operation of the truck. 

The employer did not receive written approval from the manufacturer of the 

stacker truck before using the lifting straps. Citation and Notification of Penalty

at 7.

8

 The Standard Applied

Section 1926.602 governs material handling equipment generally and its subparagraphs 

(a), (b), and (c) cover different types. At issue in this case is subparagraph (c), which covers lifting 

and hauling equipment, specifically industrial trucks like “lift trucks, stackers, etc.” See 29 C.F.R. 

§ 1926.602(c)(i). The Court finds, and the parties do not dispute, the standard applies. 

The Terms of the Standard Were Not Violated

The cited standard prohibits “modifications or additions which affect the capacity or safe 

operation of the equipment” unless the employer receives the “manufacturer’s written approval.” 

Id. § 1926.602(c)(ii). Thus, it is incumbent upon Complainant to prove (1) there was a modification 

of or addition to the equipment; (2) that affected its capacity or safe operation; and (3) Respondent 

failed to receive the manufacturer’s approval. See, e.g., Peacock Eng’g, Inc., No. 11-2780-A, 2017 

8. Complainant moved to amend the Citation and Notification of Penalty on July 22, 2021. See Complainant’s Motion 

to Amend Complaint and Citation, Docket No. 20-0134 (July 22, 2021). The Motion was granted by the Court on 

September 17, 2021. See Order, Docket No. 20-0134 (September 17, 2021).
18

WL 3952533 at *22. Complainant asserts the use of lifting straps, which wrapped around the 

splice box and looped through by the forks, constituted an “addition and/or modification” to the 

stacker that affected the safe operation of the pallet stacker. Respondent, on the other hand, argues 

the use of straps was neither an addition nor a modification, and further argues the safe operation 

of the stacker was not affected. Complainant, aided by the initial opinion of its expert, John 

Johnson, originally contended the capacity of the stacker was affected. (Tr. 153-54, 270-74). At 

trial, however, Complainant’s expert changed his conclusion on several points, and conceded that 

the capacity of the stacker was not affected by using the lifting straps. (Tr. 270-274). This 

concession is supported by the evidence, which shows, at a minimum, the capacity of the stacker 

was 2750 pounds, whereas the splice box weighed 1370 pounds. (Tr. Jt. Stip. No. 11; Tr. 414). 

Thus, the focus of this discussion is whether (a) the straps constituted an addition or 

modification; and (b) whether the safe operation of the stacker was affected by such an addition 

and/or modification. The Court finds the straps were neither an addition nor a modification of the 

pallet stacker because Complainant’s interpretation of the terms addition and modification strain 

their plain meaning. Further, assuming arguendo the straps are an addition to or modification of 

the stacker, the Court nevertheless finds Complainant failed to prove the straps actually affected 

the safe operation of the stacker.

As noted earlier, before the Court is obligated to defer to Complainant’s interpretation of 

its own standards, the Court must first determine whether the terms of the standard are ambiguous. 

This analysis is guided by the Supreme Court’s holding in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). 

[T]he possibility of deference [under Auer] can arise only if a regulation is truly ambiguous.” Kisor 

v. Wilkie, 139 S. Ct. at 2414. Before a court can reach such a conclusion, it must exhaust all of the 

“traditional tools” of construction.” Id. (citing Chevron U.S.A., Inc. v. Natural Resources Defense 
19

Council, Inc., 467 U.S. 837, 843 n.9 (1984)). This requires a court to “‘carefully consider[]’ the 

text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to 

fall back on.” Id. (internal citation omitted). Only after such an analysis should a court refer to the 

Secretary’s interpretation, and, even then, the court must determine whether such an interpretation 

is reasonable. 

The cited standard was adopted from the ANSI 56.1-1969 standard. See, e.g., Powered 

Industrial Truck Operator Training, 63 Fed. Reg. 66,237 (“The construction standard for powered 

industrial trucks incorporates ANSI B56.1-1969 by reference and, therefore, also has the same 

scope as the ANSI standard.”); see also Safety Standard for Powered Industrial Trucks, ANSI

B56.1-1969, available at https://law.resource.org/pub/us/cfr/ibr/002/ansi.b56.1.1969.pdf. Neither 

1926.602 nor ANSI B56.1-1969 defines the terms “addition” or “modification”, but this does not 

automatically render the terms ambiguous. See Roy Rock, LLC, No. 18-0068, 2021 WL 3624785

at *2 (citing Fla. Gas Contractors, Inc., No. 14-0948, 2019 WL 995716, at *3 (OSHRC Feb. 21, 

2019) (determining term’s meaning by first turning to dictionary in absence of definition in 

standard); see also Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 

(2009) (undefined term “carries its ordinary meaning”)). According to the Merriam-Webster 

online dictionary, an addition is defined as “a part added”. Addition, Merriam-Webster.com, 

https://www.merriam-webster.com/dictionary/addition (last visited July 25, 2022). Modification, 

on the other hand, is defined as “the making of a limited change in something”. Modification, 

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/modification (last visited 

July 25, 2022). See Jesco, Inc., No. 10-0265, 2010 WL 9448085 (OSHRC, 2013) (relying on 

dictionary definition of term “modified”). 
20

Although the ANSI 56.1-1969 standard does not define addition or modification, it 

provides texture to those terms through its definition of the term “attachment”. According to the 

ANSI standard, an attachment is “[a] device other than conventional forks or load backrest 

extension, mounted permanently or removably on the elevating mechanism of a truck for handling 

the load. Popular types are fork extension clamps, rotating devices, side shifters, load stabilizers, 

rams, and booms.” See ANSI B56.1-1969 at 47, supra (emphasis added). The ANSI definition of 

attachment, especially when read in context, is consistent with the dictionary definitions of the 

terms addition and modification described above. The paragraph immediately following the 

adopted ANSI standard regarding modifications and additions states:

If the truck is equipped with front-end attachments other than factory installed 

attachments, the user shall request that the truck be marked to identify the 

attachments, show the approximate weight of the truck and attachment 

combination, and the capacity of the truck and attachment combination at 

maximum elevation with load laterally centered.

Id. at 40. The list of attachments, as described above, are the types of implements that could be 

added to, or be used to modify, a forklift, such as the stacker at issue. The concern, as repeated 

throughout the ANSI 56.1-1969 standard, is whether the weight of the truck, its capacity, or its 

safe operation are impacted.9

The straps Complainant contends were a modification or addition do not fit into any of the 

categories described in the definition of “attachment”, nor do they impose the same sorts of 

concerns as those attachments. The straps were not added to, nor did they physically change, the 

forklift. Cf. Peacock, 2017 WL 3952533 at *2 (employer removed forks and welded a block and 

eyebolt to the end of the boom in a clear example of modification). Rather, they served as the lift

9. It is also interesting to note the ANSI standard appears to distinguish between additions/modifications and securing 

a load. See ANSI 56.1-1969 (“When attachments are used, particular care should be taken in securing, manipulating, 

positioning, and transporting the load.”). 
21

connection point for the splice box. By way of comparison, the stacker typically lifts a load resting 

on a pallet, with the forks inserted through open gaps between the pallet wood. The Court is not 

aware of any authority deeming the pallet to be an “addition or modification” of the forklift itself; 

instead, the pallet facilitates the lift by providing a means to slide the forks beneath the load.10 The 

lifting straps in this case functioned in a similar manner. The straps were wrapped around the load, 

and the forks were driven through the strap loops as a means to lift the load. Because the straps 

were neither attached to, nor modified, the forklift, the Court finds they were not an addition or 

modification under the plain meaning of those terms.

Complainant relied on the testimony of CSHO Stephens; its expert, Mr. Johnson; and two 

letters of interpretation in support of its argument that the straps were additions or modifications. 

CSHO Stephens determined the straps were an addition under the standard (though he could not 

clearly explain the definition of either), because the straps facilitated a below-the-fork lift, which 

he believed was contrary to the stated purpose of the stacker. (Tr. 114-116; Ex. J-4). While the 

manual states it is “designed for handling pallets indoors”, the manual does not include a belowthe-fork lift as one of its prohibited uses, which are: operating in dangerous atmospheres, using as 

a tow truck for trailers or trucks, or as a passenger lift/transport. (Ex. J-4 at 10). Further, 

Complainant’s own guidance indicates “free-rigging”, which is a below-the-fork lift, is a “common 

practice”. See Standard Letter of Interpretation from Richard E. Fairfax to Dennis C. Humphreys

(October 22, 1999).

Mr. Johnson’s testimony on this point was equally unavailing. Initially, he distinguished 

an addition from a modification by way of example. He characterized a modification as “something 

10. Johnson also described a similar implement called a super sack, which has loops through which the tines of the 

forklift are inserted. (Tr. 287, 290-291). Like the present case, a super sack allows the forklift to carry the load below 

the forks, but it does not modify or add to the forklift in order to facilitate that lift. There was no evidence that the use 

of such sacks constituted a modification or addition to the forklift. 
22

that changes the safe operation or can change the safe operation of the lift truck”, such as a side 

shift carriage, which changes the location of the truck’s center of gravity. (Tr. 256). On the other 

hand, he identified things such as a back-up alarm or a paint job as additions, because they do not 

change the safe operation of the lift truck. (Tr. 256). Just a few pages later, however, Mr. Johnson 

conflated the terms and asserted the straps were both an addition and modification. On this topic, 

and others, the Court found Mr. Johnson’s testimony somewhat confusing and unhelpful despite 

his extensive experience in the field. Mr. Johnson admitted he did not try to calculate stability or 

capacity for the truck because “that’s a complex computer program”. (Tr. 273-74, 290). Further,

without any such calculations, the Court is unconvinced by Mr. Johnson’s attempt to distinguish 

the propriety of a forklift lifting a super sack versus the under-fork lift that occurred here. (Tr. 

291).

Finally, the letters of interpretation proffered by Complainant are equally unpersuasive. 

The Yotz letter, which, among other issues, addresses a question about what standard would be 

applied when an employer purchases or fabricates a boom or other lifting devices to make the 

forklift a mobile crane. See Standard Letter of Interpretation from John B. Miles to Kenneth Yotz 

(April 11, 1997). In response, OSHA stated, “The use of such lifting devices usually affects the 

capacity and safe operation of a powered industrial truck . . . .” Id. The problem, for the purposes 

of determining the particular issue regarding whether the straps are an addition or modification, is 

that the letter does not define or explore either term. It merely assumes an addition or modification 

has occurred. Further, to add confusion, OSHA directs parties to ANSI for “for a further request 

of interpretation regarding requirements for modifications and additions to trucks, which affect 

capacity and safe operation . . . .” See id. The Humphrey’s letter discussing free rigging does not 

reach any conclusions about whether the slings, shackles or rings are an addition or modification; 
23

instead, the letter merely states such implements are attachments that “could” affect the safe 

operation of the vehicle. See Humphrey’s letter, supra p. 21. For that matter, the letter recognizes 

this is a common industry practice. Id.

Complainant has not convinced the Court it should depart from the plain meaning of the 

terms addition or modification to include running the forks through lifting straps to lift the splice 

box in this case. There was insufficient evidence to find they added to, or modified, the stacker 

truck. Further it is not entirely clear what Complainant’s official interpretation of these terms is. 

CSHO Stephens expressed confusion over the definition of either term. (Tr. 114). Mr. Johnson 

ultimately conflated the two and defined modification by referring to how it affected capacity or 

safe operation, as opposed to what happened to the machine. (Tr. 256). Neither of the letters of 

interpretation define the terms, and the Yotz letter, in particular, directs further inquiries into their 

interpretation to the ANSI 56.1 Committee. Accordingly, the Court finds Complainant has failed 

to establish the lifting straps were an addition or modification under the terms of the standard. 

Even assuming, arguendo, that the straps were an addition or modification, the Court 

nevertheless finds the terms of the standard were not violated because Complainant failed to prove 

the lifting straps affected the safe operation of the stacker. Complainant makes three primary 

arguments in support of its claim that the stacker’s safe operation was affected. First, Complainant 

argues it does not need to prove the safe operation of the stacker was actually affected. Rather, 

Complainant argues the mere potential for a change in operation or capacity should prompt

employers to prospectively report such additions or modifications to the manufacturer because it 

is in the best position to assess the effect of such changes. Second, Complainant contends the load 

was unstable because Respondent failed to use tag lines or some other stabilizing device. Third, 
24

Complainant contends there was uncertainty about the load’s center of gravity and, therefore, it 

was not stable or safely arranged.

This Court finds the rationale in Peacock to be quite instructive. While it may be advisable 

for an employer to seek approval from the manufacturer to address potential, unforeseen hazards 

resulting from an addition or modification, the standard creates a more stringent burden of proof 

for Complainant to establish a violation. The plain language of the standard does not require an 

employer to seek approval for additions or modifications that might affect safe operation or 

capacity; the employer is only required to seek approval for changes that do affect safe operation 

or capacity.11 Further, how an employer should act in such a situation is different from what 

Complainant must prove to establish a violation of the standard; namely, that whatever change was 

made affected the safe operation of the vehicle. As discussed further below, Complainant’s expert 

could do no more than speculate that performing a below-the-forks lift with straps could affect the 

safe operation of the stacker.

Both Mr. Johnson and CSHO Stephens claimed Respondent’s should have used tag lines 

or some other device to prevent lateral movement of the load, but there was no explanation why 

tag lines were necessary when there was no evidence to show the load, as rigged by Respondent,

moved laterally. (Tr. 117-119c, 440-41; Ex. J-5). Mr. Johnson testified the orientation of the forks 

vis-à-vis the load “introduce[ed] much higher lateral forces into the lift truck”; however, he never 

provided the Court with evidence showing how those forces affected the safe operation of this 

truck as compared to, say, a “high” load oriented above the forks, off-center loads that cannot be 

centered on the forks, or a super sack, which is oriented below the forks. High loads and off-center 

11. Indeed, there are circumstances where an employer is not able to gain a response from the manufacturer or 

receives a negative response. In such circumstances, OSHA has indicated approval by a registered professional 

engineer would suffice for the purposes of the standard. See Humphreys Letter, supra. 
25

loads are both discussed and permitted by ANSI 56.1-1969, which merely cautions the driver to 

“operate with caution”. See ANSI B56.1-1969 at 44. Without more complete evidence, the Court 

sees no meaningful difference between a sack with loops that supports a load below the forks and 

straps with loops, which do the same thing. Further complicating matters for Complainant is the 

testimony of Respondent’s expert, Mr. Bond, who testified the newest version of the ANSI B56.1 

standard has a section that permits handling such suspended loads. (Tr. 487-89). 

Notwithstanding his experience, Mr. Johnson’s testimony was, at times, contradictory, his 

conclusions were largely speculative, and his answers often referred to mere possibilities. (Tr. 270-

74). As noted above, he determined the capacity of the stacker was exceeded only to later conclude, 

without amending his report, that capacity was not affected. Mr. Johnson failed to perform any 

meaningful calculations that would assist the Court in determining whether and how the safe 

operation of the stacker was affected. Instead, Mr. Johnson speculated the load could shift or sway, 

causing the center of gravity to change during operation; however, the video and testimonial 

evidence illustrate no shifting or swaying occurred until the front wheels of the stacker entered

into the vault. As noted above, Mr. Johnson admitted he did not try to calculate stability or capacity 

for the truck. (Tr. 290). This, he claimed, was because he was unaware of the location of load 

center on the splice box. Mr. Johnson had the dimensions of the box, as well as the weight, 

capacity, and dimensions of the forklift but made no attempt to illustrate how these variables

equated to an unstable load. Further, whether Respondent knew the exact location of the splice 

box’s center of gravity, the allocation of the load on the individual forks, or other such information 

is not relevant to the question of whether Complainant proved these issues affected the safe 

operation of the stacker.
26

Complainant’s argument is not aided by the letters of interpretation discussed above. The 

Yotz letter does not discuss the use of slings to suspend a load below the forks, but instead 

discusses the purchase or fabrication of booms or other lifting devices to convert a forklift into a 

mobile crane. See Yotz letter, supra. The Humphreys letter discusses free rigging as a “common 

practice” but only concludes that it could affect the capacity or safe operation of a powered 

industrial truck. See Humphreys letter, supra. Furthermore, the Humphreys letter reiterates the 

foregoing, plain language requirement that “[e]mployers must seek written approval from powered 

industrial truck manufacturers when modifications and additions affect the capacity and safe 

operation of powered industrial trucks.” Id. In either case, neither letter explicitly concludes the 

safe operation of a forklift or other powered industrial truck is per se affected by suspending a load 

below the forks. 

In this matter, Complainant was obligated to show: (1) the use of slings to suspend a load 

below the forks of a stacker was an addition or modification; and (2) that such use affected the 

safe operation of the stacker. Complainant has failed to prove either. Accordingly, Citation 1, Item 

2 will be VACATED.

Penalty

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

of the Act. See 29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes

advisory when an employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441–

42 (8th Cir. 1973); Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). 

Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 

17]”, which it determines de novo. 29 U.S.C. § 666(j); see also Valdak Corp., 17 BNA OSHC 

1135 (No. 93-0239, 1995). In determining an appropriate penalty, the Court is required to consider
27

“the employer’s size, the gravity of the violation, the good faith of the employer, and any prior 

history of violations.” Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing

29 U.S.C. § 666(j). These factors are not necessarily accorded equal weight. J.A. Jones Constr., 

15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citation omitted). Gravity, which is the primary 

focus of any penalty analysis, is a holistic measure of how hazardous a particular violation is and 

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

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

likelihood an injury will occur. See, e.g., Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 

2001), aff’d, 34 F. Appx. 152 (5th Cir. 2002) (unpublished).

Complainant proposed a penalty of $11,934 for Citation 1, Item 1. This penalty calculation 

was based on Complainant’s determination that the violation was of high severity and greater 

probability, because an accident actually occurred and an employee was seriously injured. 

Complainant offered a 10% reduction in the penalty amount because Respondent has 230 

employees, which is below the threshold to be considered a large employer. (Tr. 112). The Court 

finds no reason to disturb Complainant’s assessment. Despite his experience, Kane had not been 

trained and evaluated in the use of the Toyota stacker truck during his employment with 

Respondent. During the lift giving rise to the present case, Kane operated the stacker truck, without 

proper training or evaluation, in proximity to three employees, one of whom was seriously injured 

when the truck was driven into the vault opening. This is exactly the type of accident the training 

standard seeks to avoid. Accordingly, considering the totality of the circumstances discussed 

above, the proposed penalty will be ASSESSED.
28

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1 is AFFIRMED as a serious violation of the Act, and a penalty of $11,934

is ASSESSED; and

2. Citation 1, Item 2 is VACATED.

/s/ Brian A. Duncan

Date: August 23, 2022 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission