Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor, 

United States Department of Labor,

Complainant,

v. OSHRC DOCKET No. 13-1713

MATSU ALABAMA, INC., d/b/a A Division 

of MATCOR AUTOMOTIVE, INC.,

 Respondent.

DECISION AND ORDER

COUNSEL: M. Patricia Smith, Solicitor of Labor, Theresa Ball, Associate Regional Solicitor, 

Joseph B. Luckett, Counsel, Schean G. Belton, Senior Trial Attorney and Willow E. Fort, Trial 

Attorney, for Complainant. 

John J. Coleman, III, Esq., and Ronald W. Flowers, Jr., Esq., Burr & Forman, LLC, for 

Respondent. 

JUDGE: John B. Gatto. 

I. INTRODUCTION

Matsu Alabama, Inc. (dba A Division of Matcor Automotive, Inc.) (Matsu) manufactures 

automobile parts at a facility in Huntsville, Alabama. On April 3, 2013, the United States 

Department of Labor’s Occupational Safety and Health Administration (OSHA) initiated an 

inspection of that facility in response to an employee complaint, which alleged that on April 2, 

2013, [redacted], a temporary worker hired as a janitor, had been caught in a mechanical power 

press resulting in amputation injuries. As a result of the inspection, three citations were issued to 

Matsu on September 30, 2013, by the Birmingham, Alabama, OSHA Area Director pursuant to 

section 9(a) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 658(a), 

651-678,1 and the standards promulgated thereunder.2

 

1 The Secretary of Labor assigned responsibility to OSHA for enforcement and delegated his authority under the Act 

to the Assistant Secretary for Occupational Safety and Health, who heads OSHA, and authorized the Assistant 

Secretary to redelegate his authority. See 65 FR 50017, 50018 (2000). The Assistant Secretary promulgated 

regulations authorizing OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. 

§§1903.14(a) and 1903.15(a).
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Citation Number 1 alleges six serious violations involving the Lockout/Tagout (LOTO) 

standard,3 the Mechanical Power Presses standard,4 and the general Hand and Portable Powered 

Tools and Equipment standard,5 with proposed penalties totaling $39,000. (Compl., Ex. A, pp. 1-

8.) Citation Number 2 alleges a repeat violation of the general requirements of the Machine 

Guarding standard6 with a proposed penalty of $35,000. (Compl., Ex. A, p. 9.) Citation Number

3 alleges an other-than-serious violation of the Recordkeeping and Reporting standard7 with a 

proposed a penalty of $1,000.8 (Compl., Ex. A, p. 10.) 

Matsu timely contested the citations and the Secretary of Labor initiated the above-styled 

action with the Commission by filing a Complaint against Matsu pursuant to Commission Rule 

34(a), 29 C.F.R. § 2200.34(a), seeking to affirm the citations. In response to the Secretary’s 

allegations, Matsu argues the Secretary failed to establish any of the alleged violations and 

further, asserts multiple affirmative defenses, including unpreventable employee misconduct and 

preemption of certain cited standards. (Matsu Post-Trial Br., pp. 51, 70.) The Commission has 

jurisdiction of this action pursuant to section 10(c) of the Act.9

 

The Court issues this Decision and Order as its findings of fact and conclusions of law 

pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, after hearing and carefully 

considering all the evidence and the arguments of counsel.10 If any finding is in truth a 

 

2 See 29 U.S.C. § 654(a)(2) (each employer shall comply with occupational safety and health standards promulgated 

under the Act).

3 See 29 C.F.R. §1910.147.

4 See 29 C.F.R. §1910.217.

5 See 29 C.F.R. §1910.242.

6 See 29 C.F.R. §1910.212.

7 See 29 C.F.R. §1904.29(b)(3).

8 Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a 

serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§666(a), (b), (c). A serious 

violation is defined in the statute; the other two classifications are not. Id. §666(k) (see Part III of this decision for 

definitions of the violation classifications relevant to this case).

9 See Compl., ¶¶ 1, 2; Answer, ¶¶ 1, 2; see also Proposed Pretrial Order, ¶ 4; Attach. E, Stipulated Facts, ¶¶ 1, 2. 
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conclusion of law, or if any conclusion stated is in truth a finding of fact, it shall be deemed so. 

For the reasons indicated infra, the Court VACATES Citation Number 1, Item 2 and its

proposed penalty of $7,000.00, AFFIRMS the remaining Citations, and ASSESSES penalties 

totaling $103,000.00. 

II. BACKGROUND

At all times relevant to this action, Matsu operated a facility located in Huntsville, 

Alabama, its principal place of business, where it manufactured automotive parts utilizing 

mechanical power presses and employed approximately 208 of its own employees and used an 

additional 45-50 temporary employees provided by Surge Staffing, LLC, (Surge), an onsite 

staffing agency. (Jt. Proposed Pretrial Order, Attach. E, Stipulated Facts, ¶¶ 3, 4.) In January of 

2012, for the first time, Surge assigned an onsite manager, Jesse Williams, to oversee Surge 

employees at Matsu’s facility. (Tr. 1068.) In February of 2013, Adam Wolfsberger replaced 

Williams as Surge’s onsite manager. (Tr. 243, 1068.) That same month, [redacted] applied 

online to work for Surge and subsequently went for an interview at Matsu’s Huntsville facility

where he and two other Surge applicants met with Wolfsberger.

11 (Tr. 116, 118-119, 242.) 

[redacted] and the other two applicants filled out some paperwork and were shown a short two 

minute power point presentation on safety. Wolfsberger gave them a quick walk around tour of 

the facility and described the available positions and shift hours. (Tr. 119, 122-123.) [redacted]

was hired for the third shift janitor position, which included sweeping, mopping, and picking up 

trash. (Tr. 125, 136.) 

Since Wolfsberger was not at the facility during the third shift, [redacted] was directed to 

report to Matsu’s plant manager, Takumu Pinchon, and upon arrival at his first evening shift

Pinchon directed [redacted] to another Surge employee for instructions. (Tr. 129-130, 131-133, 

 10 A trial in this matter was held on July 15 and 16, 2014, in Huntsville, Alabama, and on November 20 and 21, 

2014, in Birmingham, Alabama. The parties filed post-trial briefs on February 12, 2015, and February 13, 2015, and 

reply briefs on April 17, 2015 and April 20, 2015. The Court issued an order on August 24, 2015, sua sponte

reversing an evidentiary ruling made at trial and provided the parties an opportunity to supplement the record within 

15 business days with trial depositions and supplemental briefs. Matsu filed a supplemental brief on September 15, 

2015.

11 [redacted] testified he reported to Wolfsberger when he arrived at Matsu’s facility and Wolfsberger was the 

person who gave the orientation presentation and assigned the applicants to the positions. (Tr. 118-128.) 

Wolfsberger, however, testified [redacted] was in the last group orientation of Williams. Based upon the specific 

and detailed testimony of [redacted] regarding the events that day, the Court credits Allen’s testimony and finds 

Wolfsberger was the person who gave the orientation presentation and assigned [redacted] to his janitor position.
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137.) Approximately one week after [redacted] began working at Matsu, Pinchon directed 

Matsu team leader Chris Hall to take [redacted] off of his janitorial duties and “put him on the 

press.” (Tr. 138, 139, 1066.) [redacted] testified he never wanted to become a press operator but 

was afraid to decline the assignment: “I was really trying to keep my job. I’ve got three babies. [I 

was] really trying to do something different for them. I wasn’t trying to lose my job.” (Tr. 203.) 

At trial, Wolfsberger confirmed that [redacted] had never expressed a desire to work on the 

mechanical presses and, in fact, had “made comments about kind of being scared of” the presses. 

(Tr. 271.) Wolfsberger did not tell [redacted] he would be required to perform any assignments 

other than the janitorial position. (Tr. 254.) Wolfsberger also testified [redacted] would not have 

had an opportunity to speak with him regarding any concerns he had about working on the press 

since they worked different shifts. (Tr. 274.) 

On [redacted]’s first press assignment, he worked loading blanks into a press with an 

employee named “Ninon,” and the only instructions she gave him on how to operate the press

were, “you turn around and get these blanks out of the bin. Get these blanks out of the bin. You 

load them in the machine and you make sure you get back.” (Tr. 141, 142.) When [redacted]

asked her what “get back” meant, Ninon told him, “‘those light curtains. We’ve got light 

curtains that we have to stay out of.’” (Id.) Significantly, during the break on his first press 

assignment, Pinchon approached [redacted] and told him, “Don’t tell nobody I’ve been putting 

you on the presses.” (Tr. 143.) [redacted]’s second press assignment required him to grab metal 

pieces from the press after they had been cut in half. After [redacted] grabbed a metal piece, he 

would “step back real fast” because “the guy told me to stay out of the light curtain, and that’s 

when he showed me that it had light curtains. That’s when I really, really saw them up close.” 

(Tr. 145.) 

The last time Pinchon had Hall assign [redacted] to work on a press was April 2, 2013, 

the day of the accident, approximately five weeks after [redacted] had started working at Matsu’s 

facility.12 (Tr. 137, 287.) Hall again approached [redacted] and told him, “[Pinchon] said he 

 

12 Matsu misrepresented the length of time [redacted] worked at Matsu’s facility when it asserted in its brief it “had 

no way to predict that [redacted] would choose that night to ignore instruction he had consistently followed in past 

months.” (Matsu’s Post-Trial Brief, pp. 61-62) (emphasis added). It is undisputed [redacted] began working at 

Matsu’s facility on February 24, 2013, and ended after the accident on April 2, 2013, a period of five weeks and two 

days.
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wants you to help work with Jeffrey Carter on this press [Press Number 10].” (Tr. 37, 150.) 

[redacted] had never worked on Press Number 10 before and he was not familiar with its safety 

features. (Tr. 151.) Press Number 10 was similar to the first press [redacted] worked on except 

on the first press, both the operator and the loader stood next to each other on a platform, and 

with the platform, it was easier for [redacted] to load blanks since he didn’t have to reach as high 

or lean into the machine. (Tr. 152-153, 163.) 

For the first few hours, [redacted] was the Operator of Press Number 10 and controlled 

the button that activated the press. (Tr. 154.) However, after the meal break, Carter took over as 

the Operator while [redacted] began loading the blanks. (Tr. 156-157.) [redacted] has a slight 

build and weighs only 135 pounds and when he leaned close to the press in order to load the 

blanks, his entire body fit in the space between the press and the vertical light curtain that was 

meant to deactivate the machine if he was within the danger zone of the press. With Press 

Number 10, since there was no platform to stand on, Carter as the Operator, stood to the left side 

of [redacted] while [redacted] loaded the blanks. (Tr. 156-157, 183.) 

As [redacted] was in the die of the press, he noticed Carter was turning or spinning away 

from him and then, in [redacted]’s words, “I just felt something on my back. It just felt like it 

was just coming—like the whole world was coming down on me. But it was the machine.” (Tr. 

157.) As [redacted] tried to squeeze himself out of the press, he stepped back and in doing so, 

stepped into the light curtain zone, which caused the press to stop cycling and instantly shut off. 

[redacted]’s hands were still inside the press when it shut off. (Tr. 194-197.) [redacted]’s right 

hand up to his wrist was caught in the press and although his left hand was almost out of the 

press, several of his left hand fingers were also caught inside the press. (Tr. 158, 195, 201.) The 

machine was burning [redacted]’s hands and a fan was brought to try and help keep him cool. 

(Tr. 197.) 

Since [redacted]’s hands were extended above his head when the press stopped cycling, a 

platform was also brought for [redacted] to stand on so that he was level with the press. (Id.) 

[redacted] testified, “I was just talking to myself about [what] my daddy had told me.” (Tr. 198.) 

[redacted]’s father had been a press operator for 30 years and he had told [redacted] every night 

before [redacted] went to work “don't let that monster eat you up.” (Id.) It took approximately 

45 minutes for emergency services to arrive at the facility and another 15 minutes to get the 
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machine off of [redacted]. (Tr. 199.) Meanwhile, the press continued to burn his hands. After 

[redacted] was finally extricated from the press, his whole left hand was “flat like a pancake,” 

and some of his fingers had been amputated by the press. (Tr. 158, 195, 201.) His right hand was 

completely crushed and was amputated at the hospital that morning—and eventually was 

amputated to the middle of his forearm. (Tr. 200-202.) 

The day after the accident, OSHA’s Birmingham Area Office received an employee

complaint regarding [redacted]’s accident and that same day Gary Vernon,13 an OSHA 

Compliance Safety and Health Officer, went to Matsu’s facility to open an investigation. (Tr. 

286, 287; Ex. C-31, p. 1.) Upon his arrival Vernon met with Matsu’s General Manager, Robert 

“Bobby” Todd, and conducted an opening conference with the on-site management, which 

included Gregg Patterson, the company’s Human Resources Manager and safety person, and 

John Carney, the company’s Vice President. (Tr. 289, 292-293.) In his first contact with the 

company, Vernon spent roughly six hours at the facility. Vernon spoke briefly with Todd about 

how Press Number 10 operated. (Tr. 294-296.) Over a period of days Vernon requested 

documents regarding the company safety programs and injury records. He also arranged 

employee and management interviews. (Tr. 296.) 

In the midst of Vernon’s investigation, OSHA received two additional employee 

complaints against the company. An April 24, 2013, employee complaint alleged an employee 

“had hand/fingers caught in-machine in Tool and Die maintenance area” resulting in a “crush or 

amputation injury to hand/finger.” (Ex. C-31, p. 2.) Another employee complaint was received 

May 16, 2013, which alleged key controls and selection modes on the mechanical power presses 

were being left unsupervised and the doors of the motor controllers to the mechanical power 

presses were being left open. (Tr. 364-365.) Vernon investigated the two additional complaints 

 

13 Vernon has “about 14 years of experience in working in plants and facilities that actually have machine shops and 

they have milling and drilling machines.” (Tr. 653-654.) Vernon was trained to recognize hazards on those 

machines at the OSHA Training Institute which, covered the standards of 29 CFR 1910 and the different aspects of 

guarding. (Tr. at 654.) “And in those classes they taught you which is the regular guarding requirements; they 

taught you about wood working; they taught you about mechanical power presses; they taught you – they taught us 

about transmission devices and things of that nature.” (Tr. 654-655.) Vernon’s training also included “working with 

milling and drilling machines in the various safety classes and also in observing work of employees actually 

performing their duties of drilling holes and tapping things and things of that nature.” (Tr. at 654.) He has “observed 

employees operating drills before so [he] could identify what kind of guards need to be on the equipment.” (Tr. 

656.)
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in the same manner as the first. He conducted a walk around of the areas identified in the 

employee complaints, took photographs, interviewed employees, and reviewed records. (Tr. 368-

370.) At the conclusion of his investigation, Vernon recommended that the OSHA Area Director 

issue Matsu the three citations at issue.

III. ANALYSIS

In the Eleventh Circuit, the jurisdiction in which this case arose,14 “[t]o make a prima 

facie showing that an employer violated an OSHA standard, the Secretary must show: “(1) that 

the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard 

that was created; and importantly, (4) that the employer ‘knowingly disregarded’ the Act’s 

requirements.” Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor, 567 F. App'x 801, 803 (11th 

Cir. 2014) (citation omitted). “If the Secretary establishes a prima facie case with respect to all 

four elements, the employer may then come forward and assert the affirmative defense of 

unpreventable or unforeseeable employee misconduct.” Id., 567 F. App'x at 803 (citation 

omitted). However, “[a]s has often been said, OSHA does not impose strict liability on an 

employer but rather focuses liability where the harm can in fact be prevented.” Central of Ga. 

R.R. Co. v. OSHRC, 576 F.2d 620, 623 (5th Cir.1978).15

A. Citation 1, Alleged “Serious” Violations 

As indicated supra, Citation Number 1 alleges six serious violations involving three 

different standards. Whether the violative condition is “serious” depends on an application of 

section 17(k) of the Act, which indicates a “serious” violation is one that carries “a substantial 

probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). “The 

gravamen of a serious violation is the presence of a ‘substantial probability’ that a particular 

 

14 Matsu’s facility is in Huntsville, Alabama, which is also its principal place of business. (Jt. Proposed Pretrial 

Order, Attach. E, ¶ 3.) Both party may appeal the final order in this case to the Eleventh Circuit Court of Appeals, 

and in addition, Matsu may also appeal to the District of Columbia Circuit. See 29 U.S.C. §660(a) & (b). The 

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

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

from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

15 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. Immediately after the split, the 

Eleventh Circuit stated in Bonner v. City of Prichard, Alabama, 661 F. 2d 1206 (11th Cir. 1981), that any opinion

issued by the Fifth Circuit before the close of business on September 30, 1981 is binding precedent on the Eleventh

Circuit. 
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violation could result in death or serious physical harm.” Chao v. OSHRC, 401 F.3d 355, 367 

(5th Cir. 2005) (citing Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir. 1979). 
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Item 1, Alleged Violation of Section 1910.147(c)(4)(i) 

of the LOTO Standard

The Secretary alleges in Item 1 Matsu committed a serious violation of section 

1910.147(c)(4)(i) of the LOTO standard, which requires that “[p]rocedures shall be developed, 

documented and utilized for the control of potentially hazardous energy when employees are 

engaged in the activities covered by this section.” 29 C.F.R. § 1910.147(c)(4)(i). More 

specifically, the Secretary asserts on or about May 16, 2013, in the Press Line Room on Press 

Numbers 1 through 11, Matsu violated the LOTO standard when its tool and die shop employees

“were performing maintenance and servicing activities on dies in the danger zone area without 

presses being locked and tagged out.”16 (Compl., Ex. A, p. 6.) 

In order to prove that Matsu violated the LOTO provision at issue, the Commission17 has 

held “the Secretary must show that the LOTO standard applies, [Matsu] failed to comply with 

the cited LOTO provision[], [Matsu] employees had access to the violative conditions, and 

[Matsu] either knew or should have known of these conditions with the exercise of reasonable 

diligence.” Jacobs Field Servs. N. Am., 25 BNA OSHC 1216 (No. 10-2659, 2015). See also 

Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in pertinent 

part, 681 F.2d 69 (1st Cir. 1982). 

Application of LOTO standard 

“The LOTO standard, which became effective January 2, 1990, was promulgated to 

prevent industrial accidents during servicing of machines that remain in an operational mode, are 

turned off but connected to a power source, retain stored energy, or are reactivated by another 

worker unaware that servicing is in progress.” Dayton Tire, 23 BNA OSHC 1247, 1250 (No. 94-

1374, 2010) (citing Gen. Motors Corp., 22 BNA OSHC 1019, 1022 (No. 91-2843E, 2007) 

(consolidated)). “Specifically, the LOTO standard ‘covers the servicing and maintenance of 

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

 

16 The Secretary does not dispute Matsu developed and documented procedures for mechanical power presses at its 

facility but rather, asserts Matsu failed to utilize it when performing maintenance and servicing activities on the 

mechanical power press dies. (Sec’y Post-Trial Brief, p. 8; see also Ex. C-4.)

17 Neither party cited to, nor has the Court found any, binding precedent of the Fifth or Eleventh Circuit involving 

the LOTO standard. The Court therefore applies the precedent of the Commission in deciding the alleged LOTO 

violation.
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equipment, or release of stored energy could cause injury to employees.’ 29 C.F.R. § 

1910.147(a)(1)(i).” Jacobs Field Servs., 25 BNA OSHC at 1217 (emphasis in original); Dayton 

Tire, 23 BNA OSHC at 1251. “Servicing and/or maintenance” is defined as “[w]orkplace 

activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and 

maintaining and/or servicing machines or equipment,” including “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.” 29 C.F.R. § 1910.147(b). Under the LOTO standard, “energized” means 

“connected to an energy source or containing residual or stored energy.” Id.

However, servicing or maintenance that takes place “during normal production 

operations” is covered by the LOTO standard only if (1) “[a]n employee is required to remove or 

bypass a guard or other safety device,” or (2) “[a]n 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 ... or where an associated danger zone exists during a machine 

operating cycle.” 29 C.F.R. § 1910.147(a)(2)(ii). “Normal production operations” means “the 

utilization of a machine or equipment to perform its intended production function.” 29 C.F.R. § 

1910.147(b). An additional exception to this particular provision, known as the “minor servicing 

exception,” provides: 

Minor tool changes and adjustments, and other minor servicing activities, which 

take place during normal production operations, are not covered by this standard 

if they are routine, repetitive, and integral to the use of the equipment for 

production, provided that the work is performed using alternative measures which 

provide effective protection (See subpart O of this part). 

29 C.F.R. § 1910.147(a)(2)(ii) (note). 

Matsu asserts the Secretary “failed to establish that any work was performed on dies in 

presses that [did] not fall within an exception to the standard.” (Jt. Proposed Pretrial Order, 

Attach. D, p. 1.) However, it is Matsu, not the Secretary, which “carries the burden of proof on 

this issue.” Dayton Tire, 23 BNA OSHC at 1258; see also Kaspar Wire Works, Inc., 18 BNA 

OSHC 2178, 2194 (No. 90-2775, 2000) (“The Commission has repeatedly held... that ‘the party 

claiming the benefit of an exception to the requirements of a standard has the burden of proof of 

its claim.”’) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001); Westvaco Corp., 16 BNA 
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OSHC 1374, 1377-78 (No. 90-1341, 1993) (noting that employer bears burden of proving minor 

servicing exception’s applicability); Gen. Motors Corp., 14 BNA OSHC 2064, 2067 n.14 (Nos. 

82–630, 84–781, & 84–816, 1991) (consolidated) (“burden of proving the invalidity of a cited 

standard is on the employer”). 

To prove that its case comes within the exception, Matsu “must show that the 

adjustments are minor and made during normal production operations, and that effective 

alternative protection is provided.” Westvaco, 16 BNA OSHC at 1380 (emphasis in original). 

Significantly, in Westvaco, the Commission held “adjustments made to prepare for normal 

production operations cannot, at the same point in time, be adjustments that are made ‘during 

normal production operations.’” Id. Here, there is no dispute the mechanical presses are shut 

down while work was performed on dies in the presses. 

Clint Davis,18 a Matsu tool and die maker, testified his job requires him to troubleshoot 

and repair dies. (Tr. 943.) Matsu’s tool and die makers periodically perform a number of 

adjustments and repairs to mechanical presses, including changing the dates stamped onto the 

manufactured parts, repairing broken punches, replacing springs, and sharpening punches. These 

adjustments and repairs take from 10 to 45 minutes. (Tr. 73-74, 944, 965-967.) When a repair or 

adjustment was required on a mechanical press, the tool and die shop received a call over the 

intercom system stating, for example, “Press 1, date change.” (Tr. 63.) The tool and die maker 

responding to the call would gather his or her tool box and whatever equipment was indicated as 

needed for the repair or adjustment. (Tr. 64.) Davis stated he entered the press at least once a 

day to make adjustments, which took between 15 to 45 minutes. (Tr. 948-949.) Sometimes the 

tool and die maker pulls a damaged part from the press and takes it to the tool shop for repair,

but “the majority of the time” the tool and die makers “work with the dies still in the presses.” 

(Tr. 87.) While the tool and die maker is inside the press adjusting or repairing the dies, “the 

machine is shut down” and the press operator stayed “on lookout for anyone else around the area 

to let them know what’s going on. They [were] basically the lookout for the tool makers.” (Tr. 

966-67; see also Matsu Post-Trial Br., pp. 39-40) (“Matsu procedure prescribes that the die . . . 

has completely cut power to the press upon its removal”). 

 

18 Since there are two Davises referenced herein, Clint Davis and [redacted] , they are referred herein by their given 

names and their surnames.
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Therefore, the Court concludes Matsu has not proven that this case falls within the 

exception at the end of section 1910.147(a)(2)(ii) since it’s “tool changes and adjustments” and 

other “servicing activities” were not made “during normal production operations.” Clearly, they 

could not have been since the machines were shut down and were not being utilized to perform 

their intended production function. Westvaco, 16 BNA OSHC at 1380. Thus, since the safety 

blocks were still subject to unexpected energization or start up, the LOTO standard provision 

contained in section 1910.147(c)(4)(i) applied to the cited conditions. 

Compliance with the Terms of the Standard 

In Gen. Motors Corp., Delco Chassis Div. (GM-Delco), 17 BNA OSHC 1217, 1218 

(Nos. 91- 2973, 91-3116 & 91-3117, 1995) (consolidated), aff'd, 89 F.3d 313, 315 (6th Cir. 

1996), the Commission held the applicability of the LOTO standard is predicated on a showing 

“that unexpected energizing, start up or release of stored energy could occur and cause injury.” 

Although the phrase “unexpected energization” is not defined in the standard, the Commission 

has held that “[e]nergization is ‘unexpected’ in the absence of some mechanism to provide 

adequate advance notice of machine activation.” Dayton Tire, 23 BNA OSHC at 1251 (citing

General Motors Corp., 22 BNA OSHC at 1023; accord Burkes Mech., Inc., 21 BNA OSHC 

2136, 2139 n.4 (No. 04-1475, 2007)). 

Relying on the plain language of section 1910.147(a)(1)(i), and specifically emphasizing 

the standard's inclusion of the phrase “unexpected energization,” the Commission has held that 

the “Secretary must show that there is some way in which the particular machine could energize, 

start up, or release stored energy without sufficient advance warning to the employee.” GMDelco, 17 BNA OSHC at 1219-20, aff'd, 89 F.3d 313, 315 (6th Cir. 1996) (affirming 

Commission and noting that, in context of LOTO standard, “use of the word ‘unexpected’ 

connotes an element of surprise, and there can be no surprise when a machine is designed and 

constructed so that it cannot start up without giving a servicing employee notice of what is about 

to happen”). 

Under this Commission precedent, therefore, the LOTO standard's use of the term 

“unexpected” unambiguously refers to the potential of a machine or equipment to “energize, start 

up, or release stored energy without sufficient advance notice to the employee.” See Ormet 

Corp., 14 BNA OSHC 2134, 2135 (No. 85-531, 1991). And the term does not require the 
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Secretary to quantify the specific risk level associated with such an event. As the Commission 

noted in General Motors Corp., “[a]s evidenced by the fatality that prompted OSHA's inspection 

here, even momentary exposure to equipment that has not been fully deenergized and locked out 

poses a significant risk of serious harm or death.” 22 BNA OSHC at 1048; accord Burkes Mech., 

21 BNA OSHC at 2142 (finding significant risk of serious injury or death to laborers working 

under conveyor that was not locked out, as illustrated by fatality); see Int'l Union, UAW v. 

OSHA, 37 F.3d 665, 670 (D.C. Cir. 1994) (rejecting pre-enforcement challenge to OSHA LOTO 

standard, and noting that in its supplemental statement of reasons to its rulemaking OSHA stated 

that “workers face a significant risk of material harm every time they perform service or 

maintenance work on powered industrial equipment” (citing 58 Fed. Reg. 16,612, 16,620 (Mar. 

30, 1993)). 

There is no dispute Matsu did not issue locks and tags to its tool and die makers and did 

not require them to lockout or tagout mechanical presses when they worked on them. (Tr. 70, 89, 

421.) Nonetheless, Matsu argues “OSHA’s own rules acknowledge that die blocks are the most 

effective means for the control of hazardous energy on mechanical power presses.” (Matsu PostTrial Br., p. 17) The Court does not agree. To the extent Matsu claims that use of safety blocks 

were “alternative measures,” the Court finds that those measures were ineffective. Turning off 

the machine would not prevent its unexpected energization or startup. William Tarwater, a 

former Matsu tool and die maker for approximately two years, testified that pulling the die block 

did not shut down the press completely since the flywheel motor was still on. (Tr. pp. 68-70.) 

Therefore, the presses were still energized even when the die block was pulled. 

Significantly, the safety blocks were not under the exclusive control of the tool and die 

makers. Therefore, Matsu did not prevent employee access to the point of operation of a press 

since an operator or other employees could remove the safety block without the tool and die 

maker’s knowledge. Tarwater testified about an instance when he pulled the safety block on a 

mechanical press in order to repair a broken punch. (Tr. 59, 78.) Tarwater left the mechanical 

press area and went to the tool and die shop to retrieve a tool he needed. He returned to the press 

and began working inside of it to replace the punch. Richard Tate, Tarwater’s supervisor and 

Matsu’s Tool Room Supervisor, approached Tarwater and told him he was going to suspend 

Tarwater because he was working inside a press without using a safety block. Tarwater went to 
−14−

the other side of the press and noticed someone had removed the safety block and placed it in its 

storage space. (Tr. 79, 943.) Upon further inquiry, Tate and Tarwater learned the press operator 

had returned to the press, observed the unlocked and untagged safety block in place and, not 

seeing a tool and die maker in the immediate area, the press operator removed the safety block in 

order to continue operating the press. (Tr. 79-80.) 

Tarwater was clearly exposed to the potential of unexpected energization of this press by 

the operator. Tarwater stated he “would consider that a near miss” when he was working inside 

the press after the operator had removed the safety block he had set in place. (Tr. 82.) Tarwater 

also testified that anybody could remove a safety block pulled by a tool and die maker and the 

tool and die maker had no control over it while he was working. (Tr. 81.) 

Tarwater’s testimony on this issue regarding the removed safety block was undisputed. 

Tarwater testified the first day of trial on July 15, 2014. The trial continued the next day and 

then resumed in November, four months later. At no time did Matsu call anyone to the stand to 

rebut Tarwater’s testimony or offer other evidence contradicting Tarwater’s testimony that an 

operator had removed the safety block without Tarwater’s knowledge, exposing him to crushing 

and amputation hazards.19 Therefore, Matsu “has not demonstrated that the cited activities were 

‘performed using alternative measures which provide effective protection.’” Dayton Tire, 23 

BNA OSHC at 1258. Thus, the Secretary has established Matsu failed to require its tool and die 

makers to use proper LOTO procedures when adjusting or repairing dies on mechanical presses

in violation of the cited standard. 

Employee Access to the Violative Condition 

The Secretary contends when a tool and die operator is required to make adjustments or 

repairs to the dies of a press, the operator has access to its danger zone and is exposed to 

amputation or crushing injuries. Vernon photographed tool and die team leader Larry

Sebastian20 placing his hands and arms between the dies of a mechanical press. (Tr. 370; see also

 

19 The Court closely observed Tarwater during his testimony. He was candid and responsive to the questions posed 

to him. He displayed no evasiveness, uneasiness, or deflective tactics. Tarwater gave no indication he harbored any 

animus towards Matsu. When asked if he wanted his job back at Matsu, Tarwater responded, “I wouldn’t mind 

having that job back. They’re not that easy to find for an older man like me.” (Tr. 99.) The Court finds Tarwater a 

credible witness and gives considerable weight to his testimony.

20 Since there are two Sebastians referenced herein, Larry Sebastian and Michael Sebastian, they are also referred 
−15−

Ex. C-1, pp. 1, 5.) Vernon observed the press’s safety block had been pulled but that LOTO 

procedures had not been implemented. (Tr. 393.) Matsu argues that since Vernon admitted he 

did not know whether Larry Sebastian was engaged in a die-setting operation at the time he was 

photographed, the Secretary failed to prove Larry Sebastian was performing maintenance or 

servicing within the meaning of the LOTO standard. (Tr. 445.) The Court does not agree with 

Matsu. 

The photographs clearly show Larry Sebastian with his hands and arms inside the point 

of operation of the press on which he was working. The press is not engaged in normal 

production operations because the safety block had been pulled and placed in the press. 

Similarly, Tarwater also testified that when making adjustments and repairs to dies while they 

were still in the presses, he was required to lean into the die, entering the point of operation. (Tr. 

59, 69, 77-78.) Likewise, Clint Davis also testified he used a hand or surface grinder to sharpen 

punches on the mechanical presses and described the manner in which he changed a broken 

spring on a component of the die. (Tr. 943, 967-968.) Both tasks required Davis to place his 

hands and arms within the danger zone of the press. “[T]he Commission may draw reasonable 

inferences from the evidence[.]” Fluor Daniel, 19 BNA OSHC 1529, 1531 (Nos. 96-1729 & 96-

1730, 2001) (citing Atlantic Battery Co., 16 BNA OSHC 2131, 2159 (No. 90-1747, 1994)). The 

Court concludes the reasonable inference from the evidence is that Vernon observed Sebastian 

engaged in servicing or maintenance on the dies of the press when LOTO procedures had not 

been implemented. 

Matsu nonetheless argues its procedure of pulling the safety block and placing it between 

the ram and the bolster “forecloses employee exposure.” (Matsu Post-Trial Br., p. 31.) The 

Court finds no merit in Matsu’s argument. As indicated supra, the safety blocks were not under 

the exclusive control of the tool and die makers and did not prevent employee access to the point 

of operation of a press since an operator or other employee could remove the safety block 

without the tool and die maker’s knowledge. Even Tarwater’s momentary exposure to 

equipment that has not been fully deenergized and locked out posed a significant risk of serious 

harm or death. General Motors Corp., 22 BNA OSHC at 1048. Thus, the Court concludes the 

 herein by their given names and their surnames.
−16−

Secretary has established Matsu’s tool and die makers had access to the danger zone and were 

exposed to amputation or crushing injuries at the point of operation when working in the presses. 

Employer Knowledge 

Matsu does not dispute that its policy prevented tool and die makers from locking or 

tagging out its mechanical presses when they worked inside the presses making adjustments and 

repairs, but rather, argues it lacked fair notice because the Secretary did not cite it for violating 

the LOTO standard following a 2010 OSHA inspection21 and “OSHA inspectors must cite 

violations they find.” (Matsu Post-Trial Br., p. 40.) The Court does not agree. It is wellestablished that “an employer cannot rely on the failure of the Secretary to issue a citation for a 

particular condition during an earlier inspection as the basis for later arguing lack of knowledge 

of the same hazardous condition.” Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1780, 1782 

(No. 91-2524, 1994).22 “In essence, the mere fact of prior inspections does not give rise to an 

inference that OSHA made an earlier decision that there was no hazard, and does not preclude 

the Secretary from pursuing a later citation.” Seibel Modern Mfg. & Welding Corp., 15 BNA 

1218, 1224 (No. 88-821, 1991). 

In Seibel, the Commission noted it had previously “cautioned employers against freely 

drawing such inferences from uneventful inspections” since “an employer is required to comply 

with a standard regardless of whether it has previously been informed that a violation exists.” Id.

at 1223-1224 (citing Simplex Time Recorder Co., 12 BNA OSHC 1591, 1596 (No. 82-12, 1985); 

 

21 By Order dated December 24, 2014, the Court took judicial notice “that the Alabama Safe State Program is the 

OSHA-approved and funded state occupational safety and health consultation service for the State of Alabama 

established pursuant to the OSH Act. 29 U.S.C. §670(d)[,]” which sends consultants to perform safety audits of 

worksites. To the extent Matsu apparently argues it did not have notice since SafeState did not recommend 

implementing LOTO procedures following its audit of Matsu’s facility, the Court finds this argument is not relevant 

for the sames reasons indicated infra. (Id.)

 

22 Matsu cites three cases (Martin v. Miami Indus., 983 F.2d 1067 (6th Cir. 1992); Trinity Marine Nashville, Inc., 275 

F.3d 423, 430 (5th Cir. 2001); and Interstate Brands Corp., 20 BNA OSHC 1102 (No. 00-1077, 2003)) which it 

claims support its argument that OSHA cannot cite an employer for a violation if it did not cite the same alleged 

violative conditions in a previous inspection. The two circuit court opinions are not binding precedent since, as 

indicated supra, this case arose in the Eleventh Circuit. Further, all three cases are easily distinguishable from the 

present case. In each of the cases cited by Matsu, an OSHA compliance officer affirmatively told the employer that 

a specific condition or piece of equipment was in compliance with a later-cited standard or made recommendations 

that the employer followed. In the present case, Matsu presented no evidence that during the 2010 inspection 

OSHA’s compliance officer informed Matsu it was not required to implement LOTO procedures when its tool and 

die makers adjust or repair dies in mechanical presses. 
−17−

Columbian Art Works, Inc., 10 BNA OSHC 1132, 1133 (No. 78-29, 1981); GAF Corp., 9 BNA 

OSHC 1451, 1457 (No. 77-1811, 1981). “These cases implicitly rule against deducing from 

uneventful prior inspections that particular operations are nonhazardous.” Id. See also 

International Harvester Co. v. OSHRC, 628 F.2d 982, 985 n. 3 (7th Cir.1980) (earlier failure to 

cite for violation of a particular standard is not a decision that the employer was complying). Cf. 

Cedar Construction Co. v. OSHRC, 587 F.2d 1303, 1306 (D.C.Cir.1978) (“[w]e believe that 

recognizing such a right [to rely on uneventful prior inspections] would discourage selfenforcement of the Act by businessmen who have far greater knowledge about conditions at their 

workplaces than do OSHA inspectors”). The Court concludes the Secretary has established 

Matsu had actual knowledge of the cited condition since, in lieu of using the LOTO procedures, 

the company’s own policy required the use of die blocks with its mechanical presses when tool 

and die makers worked inside the presses. 

Preemption Claim

Matsu contends the LOTO standard does not apply to the cited mechanical presses 

because the “standard governing mechanical press die adjustment and repair displaces it.”23

(Matsu Post-Trial Br., p. 32.) The standard referred to by Matsu is the Mechanical Power 

Presses standard, which in relevant part mandates employers shall provide and enforce the use of 

safety blocks “whenever dies are being adjusted or repaired in the press.” 29 C.F.R. § 

1910.217(d)(9)(iv). Therefore, Matsu argues “[t]he mechanical power press standard requires 

only pulling die blocks, and not § 1910.147 lockout, before making die adjustments and repairs 

inside presses.” (Matsu Post-Trial Br., p. 31.) 

In the Eleventh Circuit, a “general standard setting forth measures that an employer must 

take to protect employees from a particular hazard is not preempted by a specific standard unless 

that specific standard addresses the same particular hazard as the general standard.” Brock v. 

Williams Enterprises of Georgia, Inc., 832 F.2d 567, 570 (11th Cir. 1987) (citing L.R. Willson & 

 

23 At the trial and in its briefs, Matsu relies heavily on statements made by Vernon in a deposition taken under Fed. 

R. Civ. P. 30(b)(6), which Matsu interprets as admissions by Vernon that the LOTO standard does not apply to the

cited conditions and that Matsu’s compliance with section 1910.217(d)(9)(iv) is all that is required. (Tr. 705, 707, 

1033.) However, Vernon’s statements are not dispositive of the issue since “’the Commission is not bound by the 

representations or interpretations of OSHA Compliance Officers.” Kaspar Wire Works, Inc. v. Sec'y of Labor, 268 

F.3d 1123, 1128 (D.C. Cir. 2001) (citing L.R. Wilson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C.Cir.1982)). 
−18−

Sons v. Donovan, 685 F.2d 664, 670 (D.C.Cir.1982)). The Court concludes the LOTO standard 

is not preempted by the Mechanical Power Presses standard. 

An energy isolating device is “capable of being locked out if it has a hasp or other means 

of attachment to which, or through which, a lock can be affixed, or it has a locking mechanism 

built into it.” 29 C.F.R. § 1910.147(b). An “affected employee” is “[a]n employee whose job 

requires him/her to operate or use a machine or equipment on which servicing or maintenance is 

being performed under lockout or tagout, or whose job requires him/her to work in an area in 

which such servicing or maintenance is being performed.” Id. An “authorized employee” is “[a] 

person who locks out or tags out machines or equipment in order to perform servicing or 

maintenance on that machine or equipment. An affected employee becomes an authorized 

employee when that employee's duties include performing servicing or maintenance covered 

under this section.” Id.

As the Commission as held, the language of the LOTO standard is ambiguous as to 

whether it applies to the cited mechanical presses, which are also governed by the Mechanical 

Power Presses standard. Tops Markets, Inc., 17 BNA OSHC 1935, 1935 (No. 94-2527, 1997), 

aff'd without published opinion, 132 F.3d 1482 (D.C. Cir. 1997). When the language of the 

standard fails to provide an unambiguous meaning, we look to the standard’s legislative history. 

Oberdorfer Industries, Inc., 20 BNA OSHC 1321, 1328-29 (Nos. 97-0469 & 97-0470, 2003) 

(consolidated). The preamble to a standard is the most authoritative evidence of the meaning of 

the standard. Wal-Mart Distribution Ctr. # 6016, 25 BNA OSHC 1396, 1398 (No. 08-1292, 

2015); Superior Rigging & Erecting Co., 18 BNA OSHC 2089, 2092 (No. 96-0126, 2000); Tops 

Markets, 17 BNA OSHC at 1936. 

The preamble to the LOTO standard states, “this standard focuses primarily on 

procedures—procedures that are necessary to provide effective control when dealing with 

potentially hazardous energy sources. Where current standards require the use of specific 

measures, those standards are supplemented and not replaced by the procedures and training 

requirements of this Final Rule.” 54 Fed. Reg. 36665 (emphasis added). “With regard to 

servicing and/or maintenance which takes place during ‘normal production operations,’ it is 

important to note that this standard is intended to work together with the existing machine 

guarding provisions of Subpart O of part 1910[.]” 54 FR 36644-01 (emphasis added). The 
−19−

preamble also states that it “supplements and supports the existing lockout related provisions 

contained elsewhere in the general industry standards by providing that comprehensive and 

uniform procedures be used for complying with those provisions” and further, it “does not 

conflict with their requirements” since those standards “provide limited coverage of machinery, 

equipment and industries and do not address lockout or tagout issues or methodology in any 

detail.” Id. (emphasis added). 

Significantly, the Commission has also held “that the LOTO standard protections 

prescribed for servicing and maintenance activities were designed to seamlessly dovetail with the 

machine guarding protections that apply during normal production operations under 29 C.F.R. 

Part 1910, subpart O.” Dayton Tire, 23 BNA OSHC at 1254. Thus, the Mechanical Power 

Presses standard provides more limited coverage than does the LOTO standard since the 

Mechanical Power Presses standard is silent on lockout or tagout methodology and the hazard or 

requirements for the utilization of specific procedures to control the unexpected start-up of the 

power presses.24 

The Court therefore finds the LOTO standard provides meaningful employee protection 

beyond that afforded by the Mechanical Power Presses standard. The Cincinnati Gas & Electric 

Co., 21 BNA OSHC 1057 (No. 01-0711, 2005) (citing Bratton Corp., 14 BNA OSHC 1893 (No. 

83-132, 1990)). Accordingly, the preemption argument is rejected, the LOTO standard applies, 

and the Secretary properly resorted to the LOTO standard to attempt to safeguard Matsu’s 

 

24 The energy control procedure required by the LOTO standard must “clearly and specifically outline the scope, 

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

enforce compliance.” 29 C.F.R. §1910.147(c)(4)(i), (c)(4)(ii). Additionally, the LOTO standard prescribes a 

specific sequence for the application of energy controls to incorporate into each procedure. 29 C.F.R. §1910.147(d). 

It further requires employers to conduct an annual periodic inspection of the energy control procedure “to ensure 

that the procedure and the requirements of this standard are being followed.” 29 C.F.R. §1910.147(c)(6). The 

LOTO standard also mandates both initial training and retraining in lockout procedures for servicing employees, and 

other employees who work near machines that are being serviced. 29 C.F.R. §1910.147(c)(7)(i), (c)(7)(III). 

Specifically, it requires initial lockout training to “ensure that the purpose and function of the energy control 

program are understood by employees and that the knowledge and skills required for the safe application, usage, and 

removal of the energy controls are acquired by employees.” 29 C.F.R. §1910.147(c)(7)(i). Retraining must be 

provided for servicing employees when “there is a change in their job assignments, a change in machines, equipment 

or processes that present a new hazard, or when there is a change in the energy control procedures.” 29 C.F.R. 

§1910.147(c)(7)(III)(A). Additionally, the employer must provide retraining “whenever the employer has reason to 

believe[] that there are deviations from or inadequacies in the employee's knowledge or use of the energy control 

procedures.” 29 C.F.R. §1910.147(c)(7)(III)(B). The employer must also certify “employee training has been 

accomplished and is being kept up to date.” 29 C.F.R. §1910.147(c)(7)(iv).
−20−

employees from the hazard of an unexpected start-up of the power presses not covered in the 

Mechanical Power Presses standard.

Fair Notice Claim

“Generally speaking, an employer cannot be held in violation of the Act if it fails to 

receive prior fair notice of the conduct required of it.” Miami Indus. Inc., 15 BNA OSHC 1258, 

1263 (No. 88-671, 1991). See also Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567, 

572 (11th Cir. 1987) (citing L.R. Willson & Sons v. Donovan, 685 F.2d 664, 670 (D.C.Cir.1982)

(due process mandates that an employer receive notice of the requirements of any OSHA 

regulation before he is cited for an alleged violation). Thus, Matsu argues the Secretary failed to 

provide Matsu with fair notice the LOTO standard applied to its mechanical presses. Because it 

“was not given sufficient notice of the standard's applicability to die adjustment and repair.” 

(Matsu Post-Trial Br., p. 38.) The Court does not agree. The Secretary’s intent to apply the 

LOTO standard to die changing is reflected in two Standard Interpretation Letters. 

“Congress intended to delegate to the Commission the type of nonpolicymaking 

adjudicatory powers typically exercised by a court in the agency-review context. Under this 

conception of adjudication, the Commission is authorized to review the Secretary's 

interpretations only for consistency with the regulatory language and for reasonableness. In 

addition, of course, Congress expressly charged the Commission with making authoritative 

findings of fact and with applying the Secretary's standards to those facts in making a decision.” 

Martin v. OSHRC, 499 U.S. 144, 152-55 (1991). Thus, if the legislative history does not resolve 

questions of ambiguity, we consider the reasonableness of the Secretary’s interpretation. Shaw 

Global Energy Services, Inc., 23 BNA OSHC 2105, 2107 (No. 09-0555, 2012). 

In a Standard Interpretation Letter issued April 22, 2005, the Secretary put employers on 

notice that “setting up” activities “by definition, involve work[s] that prepares a press to perform 

its intended normal production operation; therefore, this [minor servicing] exception generally 

would not apply to hydraulic and mechanical power press die-setting because the servicing 

activity is not taking place during NPOs.” (Ex. C-2, n. 1.) In another Standard Interpretation 

Letter issued December 28, 2006, the Secretary reiterated that “die-setting activities constitute 

servicing activities and are covered by the LOTO standard, i.e., pursuant to the definitions of 

“setting up” and “servicing and/or maintenance” contained in 1910.147(b).” (Ex. C-5, p. 1.) 
−21−

The Court concludes the Secretary's interpretation of the LOTO Standard is consistent 

with the regulatory language and is reasonable. Therefore, the Court concludes the LOTO 

standard and the definitions therein indicate “servicing and maintenance” include die setting and 

adjusting within the setting up activities on the presses. Moreover, when Matsu received the 

citation, the Commission was in agreement with the Secretary's interpretation. See Dayton Tire, 

23 BNA OSHC at 1254; Gen. Motors Corp., 22 BNA OSHC at 1019. 

Matsu clearly had notice since it developed and documented procedures for mechanical 

power presses at its facility. (See Ex. C-4.) As the Secretary notes in his brief, and the Court 

agrees, in developing the procedures “it is evident that [Matsu] appreciated and recognized the 

hazards of stored energy sources with its mechanical power presses and the need to protect its 

employees from the hazard.” (Sec’y Post-Trial Br., pp. 6-7.) Matsu’s “Lockout Posted 

Procedure” stated that the purpose of the procedures was to establish “the minimum 

requirements for lockout whenever maintenance or servicing is done on equipment.” (Ex. C-4.) 

Matsu’s LOTO procedures mirror the intent of OSHA’s regulation and require its 

procedures “be used to ensure that the machine or equipment is stopped, isolated from all 

potentially hazardous energy sources and locked out.” (Id.) Matsu’s LOTO procedures also 

identified the different sources of energy and detailed the methods to be used to lockout and 

tagout each source of energy on the power presses. For example, in order to isolate power at the 

primary electrical disconnect for the power press, the knife switch was required to be placed in 

the “off” position and required a lock and tag be applied to the switch. (Id.) Therefore, Matsu 

had sufficient notice of the application of the LOTO standard to the cited conditions prior to the 

instant inspection. 

Vagueness Claim

Matsu also asserts if the LOTO standard does apply, it is “unconstitutionally vague as 

applied. It is overbroad. It exceeds the scope of statutory authority.” (Matsu Post-Trial Br., p. 

36.) However, “a claim that a standard is vague is assessed not in the abstract, but in the 

particular factual context.” Dayton Tire, 23 BNA OSHC at 1258 (citing Bliss & Laughlin Indus., 

Inc. v. Sec'y of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982)). “Moreover, the [standard] will pass 

constitutional muster even though [it is] not drafted with the utmost precision; all that due 

process requires is a fair and reasonable warning.” Id.; cf. Pitt-Des Moines, Inc., 168 F.3d 976, 
−22−

987 (7th Cir. 1999) (holding that “[t]he addition of an alternative, less specific means of 

compliance does not make the regulation unconstitutionally vague,” and that employer relying 

on alternative “did so at its peril”). 

Thus, the Commission has held “the challenged elements of the minor servicing 

exception are necessarily broad enough to cover the myriad servicing activities to which the 

LOTO standard might apply. Dayton Tire, 23 BNA OSHC at 1258 (citing Cargill, Inc., 15 BNA 

OSHC 2149, 2152 (No. 90-3191, 1993) (“the due process clause does not impose drafting 

requirements of mathematical precision or impossible specificity.”); J.A. Jones Constr., 15 BNA 

OSHC 2201, 2205 (No. 87-2059, 1993) (noting that Secretary needs to draft standard only “with 

as much exactitude as possible in light of the myriad conceivable situations which could arise 

and which could be capable of causing injury” (citation omitted)). 

Moreover, the Court concludes, as the Commission did in Dayton Tire, that a reasonable 

employer “could determine what constitutes ‘effective’ alternative protection, given that the 

stated purpose of the LOTO standard is to prevent injury that could result from ‘unexpected 

energization or startup of the machines or equipment, or release of stored energy.” 29 C.F.R. § 

1910.147(a)(1)(i).” Dayton Tire, 23 BNA OSHC at 1252. “This link to the standard's purpose is 

reinforced by the exception's cross-reference to ‘subpart O of this part,’ which prescribes 

machine guarding requirements. . . . As such, a reasonable employer could determine, based on 

knowledge of its employees' specific servicing activities and the machines upon which they 

work, what alternative measures would achieve this purpose and, thus, provide effective 

protection.” Id. Therefore, the Court rejects Matsu’s vagueness challenge.

Classification

Finally, the Secretary classified the violation as serious. As indicated supra, a serious 

violation is one that carries a substantial probability that death or serious physical harm could 

result. Here, employees were exposed to the hazard of crushing and amputation injuries due to 

Matsu’s failure to require the use of LOTO procedures for its tool and die makers adjusting or 

repairing dies in its mechanical presses. Therefore, the violation was properly classified as 

serious. Thus, the Court concludes Item 1 should be affirmed. 
−23−

Item 2, Alleged Violation of Section 1910.217(b)(7)(iii) 

of the Mechanical Power Presses Standard

The Secretary alleges in Item 2 Matsu committed a serious violation of section 

1910.217(b)(7)(iii), a provision in the Mechanical Power Presses standard, which mandates that 

with machines using partial revolution clutches, the clutch’s means of selecting “off,” “inch” 

(also called “hand transfer”), “single stroke” and “continuance” (also called “progressive”) mode 

must be “by means capable of supervision by the employer.” 29 C.F.R. § 1910.217(b)(7)(iii). 

The Secretary asserts that on or about May 16, 2013,25 in the Press Line Room on Presses 1

through 11, “press operators had their own keys, one key controlled numerous presses, and 

operators were able to change the press mode without supervision.” 

Applicability

Section 1910.217(b)(7)(iii) is a provision in the Mechanical Power Presses standard and 

since the Secretary cited eleven mechanical power presses in the press line room, section 

1910.217(b)(7)(iii) applies to the cited conditions. This standard applies to machines used in 

metal manufacturing. Oberdorfer Indus., 20 BNA OSHC at 1321 (affirming violation of standard 

for rotating lathes used to mold patterns from pieces of metal). Therefore, the Court concludes 

the cited standard clearly applied to the cited conditions. S. Pan Servs. Co., 25 BNA OSHC

1081, 1085 (No. 08-0866, 2014). 

Compliance with the Terms of the Standard 

Relevant to this citation item, Vernon “found that it was a routine occurrence that 

employees would have more than one key to one press and that some of the keys were routinely 

left in the presses as they were being operated.” (Tr. 415.) Matsu admitted “supervisors, team 

leads and trained operators have keys.” (Matsu Post-Trial Br., p. 18.) However, Vernon also 

admitted he did not determine whether Matsu’s press operators had been trained and authorized 

to perform the supervisor function. (Tr. 748-749.) Nonetheless, the Secretary argues in his brief

“OSHA interprets the term ‘supervision of keys’ to mean ‘that only the employer or a designated 

responsible person, such as the supervisor or foreman qualified by experience or training will 

 

25 The alleged violation description for Item 2 cites May 16, 2013, as the approximate date of the alleged violation 

and refers to Matsu employees assigned to operate presses in the press line. [redacted] was injured April 2, 2013. 

The issue of whether Matsu failed to train and supervise [redacted] is addressed in Items 5a and 5b of Citation 

Number 1.
−24−

control the operation of the press to prevent its use by unauthorized persons.’” (Sec’y Post-Trial 

Br., p. 18.) Thus, the Secretary asserts Matsu violated the cited standard since there was 

“overwhelming evidence to support a finding that the keys did not remain under the supervision 

of [Matsu’s] supervisors or foreman.” (Id.) The Court does not agree with the Secretary. 

The Secretary cites in his post-trial brief to a purported standard interpretation letter dated 

July 29, 1975, which is not in evidence since he failed to tender a copy as an exhibit at trial, 

failed to attach it as an exhibit to his post-trial brief, and failed to move the Court to take judicial 

notice of it. See Fed. R. Evid. 201(c)(2). Apparently, the Secretary assumed the Court would 

simply take judicial notice of the cited interpretation letter. However, the Court declines to do so 

since the Secretary had ample opportunity at trial to present any evidence he felt was relevant.26

See Article II Gun Shop Inc., 16 BNA OSHC 2035, 2036 (Nos. 91–2146 & 91–3127, 1994) 

(consolidated). Further, even applying the Secretary’s interpretation that “supervision of keys”

means “a designated responsible person, such as the supervisor or foreman,” the Court does not 

agree with the Secretary that he established a violation of the cited standard (emphasis added). 

The relevant national consensus standard, ANSI B11.1-2009, the American National Standards 

Institute’s (ANSI) American National Standard for Safety Requirements for Mechanical Power 

Presses, indicates in paragraph E9.6 that “[a]nyone who is trained and authorized by the user 

may perform the ‘supervisor’ function. There is no intent to imply that only a person with a title 

‘supervisor’ can assume that function.” (Ex. R-27, p. 104.) 

More importantly, the Eleventh Circuit has held the use of the phrase “such as” indicates 

that the illustrations are not meant to be exhaustive. United States v. Townsend, 521 F. App'x 

904, 909 (11th Cir.), cert. denied, 134 S. Ct. 203 (2013). Therefore, properly construed, the 

Secretary’s interpretation that “supervision of keys” means “a designated responsible person, 

such as the supervisor or foreman,” indicates that the illustrations are not meant to be exhaustive,

and Matsu is free to designate any person— not just the supervisor or a foreman— as long as 

such person is “qualified by experience or training.” 

As indicated supra, Vernon admitted he did not determine whether Matsu’s press 

operators had been trained and authorized to perform the supervisor function. Thus, the Court 

 

26 Clearly, the Secretary understood the necessity of providing the purported July 29, 1975 standard interpretation 

letter for the record since he did identify as exhibits multiple interpretive letters. See e.g., Ex. C-2, Ex. C-5, Ex. C23, Ex. C-24. 
−25−

concludes the Secretary failed to establish Matsu did not comply with the terms of the cited 

standard since the Secretary offered no evidence demonstrating Matsu’s press operators who 

maintained keys to the presses were not designated by Matsu as “responsible persons” that

“qualified by experience or training.” Therefore, the Court concludes Item 2 must be vacated.

Item 3, Alleged Violation of Section 1910.217(c)(3)(iii)(f) 

of the Mechanical Power Presses Standard

The Secretary alleges in Item 3 Matsu committed a serious violation of another provision 

in the Mechanical Power Presses standard, section 1910.217(c)(3)(iii)(f), which mandates in 

relevant part, “[g]uards shall be used to protect all areas of entry to the point of operation not 

protected by the presence sensing device.” The Secretary asserts that on the day [redacted]was 

injured on Press Number 10, Matsu “failed to effectively guard the point of operation on 

mechanical power presses to prevent employee injury.” The Court agrees. 

Applicability

Matsu previously attached a crowder bar safeguard on Press Number 8 and Press Number 

10, which was designed “to fill up that space where a person could actually walk into between 

the light curtain and the point of operation.” (Tr. 318.) Matsu attached the crowder bar safeguard 

in response to an accident that occurred on May 1, 2012, when [redacted] , another temporary 

employee, had his hands at the point of operation and was not detected by the vertical light 

curtain (the presence sensing device) when the press cycled, which resulted in finger amputation 

injuries. (Tr. 500.) As a result of [redacted] ’s amputation, Todd ordered a crowder bar

safeguard to be placed across the point of operation on Press Number 8 and Press Number 10. 

(Id.) Thus, the crowder bar was a safeguard “used to protect all areas of entry to the point of 

operation not protected by the presence sensing device” and was used to ensure an operator 

placing a blank in the press would remain inside the light curtain’s sensing area and out of the 

press. (Tr. 265, 769, 996.) Therefore, the cited standard clearly applied to the cited condition. 

Compliance with the Terms of the Standard 

Matsu asserts, citing footnote 118 of its post-trial brief that “[redacted]confirmed he 

lacked knowledge of any pre-injury bar bend.” (Matsu Post-Trial Br., p. 13 and n. 118; see also

Tr. 94; Ex. R-22, ¶¶ 7-8.) However, footnote 18 is a citation to Tarwater’s Declaration and his 

trial testimony, neither of which support Matsu’s assertion. Matsu also asserts in its post-trial 
−26−

brief, citing footnote 119, that it “established [[redacted]] was not working near the bend but next 

to operator Jeff Carter.” (Matsu Post-Trial Br., p. 13 and n. 119; see also Tr. 210.) The 

testimony Matsu points to is [redacted]’s cross-examination. On cross-examination, 

[redacted]was shown photographs, one of which was the bent crowder bar on Press Number 10. 

The following colloquy occurred between [redacted]and Matsu’s Counsel: 

Q.: And, in fact, you never saw that before your accident occurred, did you, sir? 

[redacted]: I don't know anything about -- you know, I didn't know anything about it. 

Q.: Well, My question is: whether you knew something about it or not, did you see a 

bent bar before your accident there? 

[redacted]: I really didn't pay no attention, no, sir. 

Q.: Okay. So is the answer to my question, "no, you didn't see it"? 

[redacted]: I wasn't paying any -- no. 

Q.: Okay. I want to ask you something else. 

The Court followed up with a brief line of questions: 

COURT: I want to be clear on your answer. You indicated you "don't know" if it was 

there or "no," it wasn't there?

[redacted]: At that time, me doing the job, just going -- I didn't know anything about that 

bar, no, sir. 

COURT: Did you know one way or the other? 

[redacted]: One way or the other. They just stick me over there. 

(Tr. 210.) 

It is clear from [redacted]’s responses that having never been a machine operator before, 

he was not familiar with machine or its parts, including the crowder bar safeguard, and that he 

“didn't know anything about that bar.” His testimony does not however establish the bar was not

bent prior to the accident. On direct-examination, [redacted]credibly testified at the time of the 

accident he was standing on his “tippy toes inside the machine” with both hands extended above 

his head loading blanks and “the bar was bent I was leaning on to go up inside the machine.” 
−27−

(Tr. 157.) [redacted]’s direct examination testimony is consistent with Matsu’s party admission

made to Vernon under Fed. R. Evid. 801(d)(2)(D) by Hall,

27 Matsu’s Team Leader over the 

press operators, that at the time of the accident the crowder was been bent and had been bent for 

approximately a month prior to the accident. (Tr. 318-19, 320, 329.) 

Michael Sebastian testified he performed a daily inspection every morning, including an 

inspection of the crowder bar safeguard, and filled out a daily inspection sheet for Press Number 

10, and testified the crowder bar safeguard was not bent the morning of [redacted]’s accident. 

(Tr. 992-993, 994, 996-997; see also Ex. R-3, p. 2.) His testimony conflicts with the company’s 

party admission made by Hall to Vernon and [redacted]’s testimony. The Court therefore does 

not credit Michael Sebastian’s testimony on this issue. 

Thus, the Court finds the preponderance of evidence establishes the crowder bar 

safeguard was bent at the time of the accident and had been bent for approximately a month prior 

to the accident and therefore, did not provide the protection it was intended for—to keep 

[redacted]within the sensing area of the light curtain. [redacted]had his hands at the point of 

operation, which were not detected by the vertical light curtain when the press cycled. The Court 

therefore concludes the Secretary has established Matsu failed to protect [redacted]from all areas 

of entry to Press Number 10’s point of operation that were not protected by the presence sensing 

device in violation of the cited regulation. 

Employee Access to the Hazardous Condition 

When the bent crowder bar safeguard failed to keep [redacted]within the sensing area of 

the light curtain on Press Number 10, his left hand was flattened “like a pancake” and some of 

his left hand fingers were amputated by the press. [redacted]’s right was completely crushed by 

the press and was eventually amputated to the middle of his forearm. Clearly, [redacted]’s 

access to the hazardous condition was established.

Employer Knowledge 

 

27 Supervisor/Team Leaders such as Hall were responsible for reviewing and signing off on the daily operator 

inspection sheets. (See e.g., Ex. C-15, p. 1; Ex. R-3, pp. 1, 2.) Matsu’s own training reports indicate employee 

questions should be directed to their supervisor “or team leader.” (See e.g., Ex. C-15, p. 1; C-16, p. 2.) Since Hall 

was one of the team leaders responsible for signing off on the daily operator inspection sheets, his statement 

regarding the crowder bar safeguard was clearly “within the scope of that relationship and while it existed.” 
−28−

“The Secretary can prove employer knowledge of the violation in one of two ways. First, 

where the Secretary shows that a supervisor had either actual or constructive knowledge of the 

violation, such knowledge is generally imputed to the employer.” ComTran Grp., Inc. v. U.S. 

Dep't of Labor, 722 F.3d 1304, 1307-08 (11th Cir. 2013); Georgia Elec. Co. v. Marshall, 595 

F.2d 309, 321 (5th Cir.1979). “An example of actual knowledge is where a supervisor directly 

sees a subordinate's misconduct.” ComTran Grp., 722 F.3d at 1308. “An example of constructive 

knowledge is where the supervisor may not have directly seen the subordinate's misconduct, but 

he was in close enough proximity that he should have.” Id. “In the alternative, the Secretary can 

show knowledge based upon the employer's failure to implement an adequate safety program . . . 

with the rationale being that—in the absence of such a program—the misconduct was reasonably 

foreseeable.” Id.

As indicated supra, in response to [redacted] ’s amputation on May 1, 2012, Todd 

ordered the crowder bar safeguard to be placed across the point of operation on Press Number 8 

and Press Number 10. Therefore, the Court agrees with the Secretary that Matsu had knowledge 

of the violative condition since it took steps to address the need for additional guarding on the 

presses. (See Sec’y Post Trial Br., pp. 20-21.) As the Secretary states, and the Court agrees, the 

“single purpose of the crowder bar was to keep the operator’s body within the detection beam of 

the vertical light curtain.” Id. Further, the Secretary also asserts, and the Court agrees, Matsu 

knew of the violative condition since the issue of the unguarded points of operation on Press 

Number 8 and Press Number 10 had been discussed during company safety meetings prior to 

[redacted]’s accident on April 2, 2013. (Id.) In addition, as indicated supra, Matsu admitted to 

Vernon that the crowder bar safeguard was bent on the day of the accident and had been bent for 

approximately a month prior to the accident. Therefore, the Court concludes the Secretary has 

proven Matsu had actual knowledge of the violative condition. 

Further, the Court finds Matsu had constructive knowledge of the violative condition. 

There is no dispute the crowder bar safeguard had been previously damaged and replaced nor is 

there any dispute it was bent after the accident. Vernon testified the maintenance supervisor, 

Ernie Sailors, told him the crowder bar safeguard “was a unistrut bar, which means that it's a 

lightweight bar that was put in to fill up an area between the mechanical -- between the light 

curtains and the point of operation.” (Tr. 315-316; see also Ex. C-32, Tab 13, p. 5.) Even 
−29−

assuming arguendo as Matsu asserts, the crowder bar safeguard was not bent prior to 

[redacted]’s shift on the evening of his accident, and was bent by either Carter or 

[redacted]during the course of their shift on the evening of the accident, given Matsu’s 

knowledge the crowder bar safeguard was made of lightweight material and had a propensity to 

bend (since it had been previously damaged and replaced), Matsu knew or should have known 

the crowder bar safeguard was not capable of providing [redacted]the protection it was intended 

for— to keep him within the sensing area of the light curtain. [redacted]’s injuries could have 

been prevented had Matsu exercised reasonable diligence and care. ComTran Grp., 722 F.3d at 

1316. Therefore, the Court concludes the Secretary has also proven Matsu had constructive 

knowledge of the violative condition. 

Classification

The Secretary classified the violation as serious. As indicated supra, a serious violation 

is one that carries a substantial probability that death or serious physical harm could result. 

[redacted]was permanently disabled when the crowder bar safeguard failed to keep him within 

the sensing area of the light curtain. Therefore, the violation met the statutory requirement to be 

classified as serious. Thus, the Court concludes Item 3 should be affirmed. 

Employee Misconduct Defense

Matsu asserts the affirmative defense of unpreventable employee misconduct for Item 3. 

“This defense requires the employer to show that it: (1) created a work rule to prevent the 

violation at issue; (2) adequately communicated that rule to its employees; (3) took all reasonable 

steps to discover noncompliance; and (4) enforced the rule against employees when violations 

were discovered.” Eller-Ito Stevedoring, 567 F. App'x at 804. The Commission has also longrecognized that OSHA’s machine guarding standards were designed to protect employees from 

common human errors such as “neglect, distraction, inattention or inadvertence of an operator[.]” 

Slyter Chair, Inc., 4 BNA OSHC 1110, 1112 (No. 1263, 1976). “The standard was designed to 

provide against such human weaknesses.” Id. “This requirement implicitly recognizes that 

human characteristics such as skill, intelligence, carelessness, and fatigue, along with many other 

qualities play a part in an individual's job performance, and it avoids dependence on human 

conduct for safety.” B.C. Crocker, 4 BNA OSHC 1775, 1777 (No. 4387, 1976). “The plain 

purposes of the standard are to avoid dependence upon human behavior and to provide a safe 
−30−

environment for employees in the machine area from the hazards created by the machine’s 

operation.” Akron Brick & Block Co., 23 BNA OSHC 1876, 1878 (No. 4859, 1976). Thus, the 

affirmative defense of employee misconduct applies in situations in which the behavior of the 

employee, and not the existence of a violative condition, is at issue. 

Here, Matsu created the violative conditions cited in Citation 1, Item 3 by failing to 

protect [redacted]from all areas of entry to the press’s point of operation that were not protected 

by the light curtain. In Fibres South, Inc., 17 BNA OSHC 1474 (No. 94-2688, 1995) (ALJ), the 

company, like Matsu does here, contended the violation was the result of unpreventable 

employee misconduct. In that case Judge Brady found that Fibres South demonstrated “a basic 

misunderstanding of this affirmative defense. The unpreventable employee misconduct defense 

refers to the action or actions of an employee.” Id., 17 BNA OSHC at 1480. “The Secretary did 

not cite Fibres South on how its employees were cutting wrap, but for failing to guard the #2 

Godet. Regardless of how [the employee] cut wrap, the #2 Godet was unguarded[.]” Id. Thus, 

Judge Brady held Fibres South failed to establish this defense. 

The Court agrees with Judge Brady’s analysis. Here, as in Fibres South, the Court finds 

Matsu demonstrates “a basic misunderstanding of this affirmative defense.” The Secretary did 

not cite the company on how its employees were using the cited machines, but rather, cited 

Matsu for failing to protect employees from all areas of entry to the press’s point of operation 

that were not protected by the light curtain, and like in Fibres South, regardless of how 

[redacted]was using Press Number 10, Matsu still failed to “protect all areas of entry to the point 

of operation not protected by the presence sensing device” in violation of section

1910.217(c)(3)(iii)(f). Thus, even strict implementation and employee compliance with Matsu’s 

purported rules would not have obviated the guarding requirement imposed by the standard. 

S&G Packaging Co., LLC, 19 BNA OSHC at 1507-1508. There is no work rule that, if 

communicated to employees, would change the fact that Matsu failed to “protect all areas of 

entry to the point of operation not protected by the presence sensing device.” 

Although Matsu cites to [redacted]’s trial testimony and argues in its brief “[redacted]had 

received training how safely to perform hand transfer,” (Post-Trial Br., p. 9; Tr. 216-18), the 

Court finds [redacted]was not adequately trained or supervised on the safe operation of 

mechanical presses when he was assigned press operator duties. [redacted]’s testimony reveals 
−31−

that when he was asked if Ninon gave him “some training on one of those presses right before 

[he] started working,” [redacted]testified, “Well, not really no training. She just say to get out 

the light curtain.” When asked, “Okay, that wasn’t training? She told you what to do, right?” 

[redacted]responded, “She said ‘load this blank, and then she said step back.’” (Tr. 216.) 

Matsu also cites Pinchon’s witness statement in support of its assertion [redacted]had 

received training how safely to perform hand transfer. (Matsu Post-Trial Br., pp. 8-9, n. 75; see 

also Ex. C-29, p. 2.) However, the Court does not find Pinchon’s witness statement probative 

and gives it no weight since, unlike other witness statements, it was not made under oath28 and 

was not signed by Pinchon. Further, although Matsu listed Pinchon as a witness it “may” have at 

trial,29 Matsu failed to call Pinchon to testify or make him available for cross-examination, and

this failure to call a witness in its control raises an inference his testimony would be unfavorable 

to the company’s position.30 Capeway Roofing Systems, 20 BNA OSHC at 1342-1343; see also 

Regina Contr. Co., 15 BNA OSHC 1044, 1049 (No. 87-1309, 1991). 

Matsu also cites to a two page power point presentation given to all new employees as 

part of their orientation when hired. (Ex. R-6.) However, as indicated in the Item 4 analysis 

infra, Wolfsberger testified the two-minute power point presentation on safety shown during 

[redacted]’s orientation was not adequate to train an employee to safely operate a mechanical 

press since Wolfsberger had never operated a mechanical press and he was not qualified to train 

anyone in press safety. [redacted]was hired by Surge to be a janitor, not a mechanical press 

operator. The only work experience [redacted]had prior to working at Matsu’s facility had been 

as a cook at a Shoney’s Restaurant for a month or two and as a stocker at a Walmart. (Tr. 115.) 

Clearly, and tragically, the training provided to [redacted]was not tailored to the needs of an 

 

28 Above the blank signature line in Pinchon’s purported witness statement is the following statement: “I have read 

and had the opportunity to correct this statement and these facts are true and correct to the best of my knowledge and 

belief. Public Law 91-596, Paragraph 17(g) makes it a criminal offense to knowingly make a false statement or 

misrepresentation in this statement.”). Cf. Ex. C-32, pp. 71-78 (Todd’s statement, which declared “under penalty of 

perjury under the laws of the United States of America that this statement is true and correct to the best of, my 

knowledge”).

29 See Jt. Proposed Pretrial Order, Attach. F-2, p. 2. 

30 Even if the Court were to consider Pinchon’s Job Supervisor’s Report reliable and probative, it does support 

Matsu’s assertion “[redacted] chose not to notify Carter that he was going to go back into the point of operation.” 
−32−

employee such as [redacted]with virtually no work experience and certainly no experience 

working on a mechanical press. 

Matsu also asserts that “[redacted]chose not to notify Carter that he was going to go back 

into the point of operation as [redacted]was trained.” (Matsu Post-Trial Br., p. 10, n. 90, n. 91) 

(citation to footnotes omitted from quote). However, Matsu points to no admission by 

[redacted]in the record that he was ever trained “to notify Carter that he was going to go back 

into the point of operation.” Further, [redacted]testified he did not have to make Carter aware of 

where he was when he pushed the buttons “because we went into the machine at the same time. I 

was right beside him,” (Tr. 225), which was corroborated by Matsu’s own post-trial brief, which 

admits “Carter was standing next to him.” (Matsu Post-Trial Br., p. 10.) 

In support of its assertion that [redacted]was trained, Matsu cites to Wolfsberger’s 

testimony. (Matsu Post-Trial Br., p. 10, n. 87, n. 91; Tr. 266, 270.) However, contrary to this 

assertion, Wolfsberger actually testified he did not know what training [redacted]received before 

he worked on the press. (Tr. 270.) Further, Matsu cites to Vernon’s testimony, which referenced 

his deposition, where Vernon was asked whether [redacted]was trained not to reenter the press 

after leaving without letting the operator know. In response, Vernon testified “I believe that’s 

part of his generic training.” (Id., n. 91; Tr. 802.) However, Vernon’s “belief” is not dispositive 

as to whether or not [redacted]actually received such “generic training.” 

Although Michael Sebastian, the operator for Press Number 10 on the first shift, received 

additional specialized training on different functions of the progress presses before he became an 

operator, such as how to load and unload dies as well as loading up the steels and the coils, 

[redacted]received no such specialized training. Rather, his only training was from Ninon: “you 

turn around and get these blanks out of the bin. Get these blanks out of the bin. You load them 

in the machine and you make sure you get back.” (Tr. 141.) Despite [redacted]’s lack of 

specialized training, Pinchon admonished [redacted]not to tell anybody that Pinchon had been 

putting him on the presses. Thus, Matsu failed to establish this defense. 

Item 4, Alleged Violation of Section 1910.217(e)(1)(i) 

of the Mechanical Power Presses Standard

The Secretary alleges in Item 4 Matsu committed a serious violation of section 

1910.217(e)(1)(i), another provision in the Mechanical Power Presses standard, which mandates 
−33−

in relevant part that employers must establish and follow an inspection program having a general 

component and a directed component, and under the general component of the inspection 

program, employers must: 

(A) Conduct periodic and regular inspections of each power press to ensure that 

all of its parts, auxiliary equipment, and safeguards, including the clutch/brake 

mechanism, antirepeat feature, and single-stroke mechanism, are in a safe 

operating condition and adjustment; 

(B) Perform and complete necessary maintenance or repair, or both, before 

operating the press; and

(C) Maintain a certification record of each inspection, and each maintenance and 

repair task performed, under the general component of the inspection program 

that includes the date of the inspection, maintenance, or repair work, the signature 

of the person who performed the inspection, maintenance, or repair work, and the 

serial number, or other identifier, of the power press inspected, maintained, and 

repaired.

29 C.F.R. § 1910.217(e)(1)(i) (emphasis added). 

The Secretary asserts in Item 4 “[a] program of periodic and regular inspections of

mechanical power press(es) was not established and followed to ensure that all parts, auxiliary 

equipment and safeguards were in a safe operating condition and adjustment[.]” Specifically, the 

Secretary asserts that on or about April 3, 2013, in the Press Line Room on Presses 10, Matsu 

“failed to conduct effective press inspections to ensure all press safety devices and auxiliary 

equipment were in safe operating condition and properly adjusted.” 

Applicability

Section 1910.217(e)(1)(i) is found in Subpart O—Machinery and Machine Guarding. 

Section 1910.217 is captioned “Mechanical power presses.” The Secretary cited a mechanical 

power press in the press line room and asserted the crowder bar guard—which clearly was a 

“safeguard” within the meaning of the standard—was properly inspected and documented. 

Therefore, the Court concludes the cited standard clearly applied to the cited condition. S. Pan 

Servs., 25 BNA OSHC at 1085. 

Compliance with the Terms of the Standard 

The Secretary argues the “OSHA investigation found that respondent performed minimal 

pre-shift inspections and utilized general check lists for its mechanical presses. There was no 

program that identified or documented that the auxiliary equipment and guard that had been 
−34−

added to the presses was being checked.” (Sec’y Post-Trial Br., p. 23.) In support of this 

assertion, the Secretary argues Matsu “utilized the same daily inspection sheet with the same 

enumerated items, even after adding the crowder bar. As such, employees conducting the 

inspections were not given notice to check the additions on the presses.” (Id., p. 24.) Thus, the 

Secretary argues that since Matsu’s inspection checklist before and after it added the crowder bar 

safeguard were the same, “employees conducting the inspections were not given notice to check 

the additions on the presses.” The Court does not agree with the Secretary that these facts alone 

establish a violation. 

 As Matsu argues, and the Court agrees, “OSHA's own [sample] check sheet does not

require a separate category for each safety device nor mandate the use of any magic words.” 

(Matsu Post-Trial Br., p.21; see also Ex. R-28, p. 120.) In fact, OSHA’s own sample Inspection 

Checklist included in its training program lists “guards” and “presence sensing devices” under a 

single category. (Id.) Therefore, the Court does not agree with the Secretary that Matsu was 

required to list the crowder bar safeguard separately or that not having done so established 

inspections were not done in conformity with the cited standard. 

However, as the Court has found supra, the crowder bar safeguard was bent at the time of 

the accident and had been bent for approximately a month prior to the accident, and as the 

Secretary notes, Wolfsberger testified that he saw the bent crowder bar on the press a few hours 

after the accident. Therefore, the Secretary has established Matsu failed to comply with the cited 

regulation. 

Employee Access to the Violative Condition 

Matsu exposed [redacted]to the hazard of entering the danger zone of the press’s point of 

operation by failing to implement and follow a program of periodic and regular inspection of 

Press Number 10 to ensure that the Crowder bar safeguard was in a safe operating condition. As 

indicated supra, [redacted]’s left hand was flattened “like a pancake” and some of his left hand 

fingers were amputated by the press. [redacted]’s right was completely crushed by the press and 

was eventually amputated to the middle of his forearm. Clearly, [redacted]’s access to the 

hazardous condition was established. 

Employer Knowledge
−35−

The company’s party admission made by Hall to Vernon that the crowder bar safeguard 

was bent at the time of the accident and had been bent for approximately a month prior to the 

accident establishes Matsu had knowledge of the violative condition. Therefore, the Court 

concludes the Secretary has proven Matsu had actual knowledge of the violative condition. 

Classification

The Secretary classified the violation as serious. As indicated supra, a serious violation 

is one that carries a substantial probability that death or serious physical harm could result. 

[redacted]sustained permanent amputation injuries as a result of Matsu’s failure to properly 

inspect the Crowder bar safeguard, which failed to keep [redacted]within the sensing area of the 

light curtain. Therefore, the violation met the statutory requirement to be classified as serious. 

Thus, the Court concludes Item 4 should be affirmed.

Items 5a and 5b, Alleged Serious Violations of Section 1910.217(f)(2) 

of the Mechanical Power Presses Standard

The Secretary alleges in Item 5a and Item 5b Matsu committed a serious violation of 

another provision in the Mechanical Power Presses standard, section 1910.217(f)(2), which 

requires in relevant part that employers “shall train and instruct the operator in the safe method 

of work before starting work on any operation covered by this section. The employer shall insure 

by adequate supervision that correct operating procedures are being followed.” Specifically, on 

or about April 3, 2013, in the Press Line Room on Presses 10 the Secretary asserts in Item 5a 

that, Matsu “failed to properly train and instruct press operators in all the safe methods of manual 

transfer for press operations” and in Item 5b Matsu “did not ensure new operators and helpers 

were following correct operating procedures for ‘hands in die’ stamping operations.” 

Applicability

Section 1910.217(f)(2) is found in Subpart O—Machinery and Machine Guarding. 

Section 1910.217 is captioned “Mechanical power presses.” The Secretary cited a mechanical 

power press in the press line room. However, Matsu asserts that OSHA recognized that 

[redacted]was a helper and not an operator, and that Carter was the Operator. (Tr. 804.) Thus, 

Matsu argues section 1910.217(f)(2) did not apply to the cited condition because it “prescribes 

only that operators must be trained; it contains no such requirement for others who work on 
−36−

presses.” (Matsu’s Post-Trial Br., p. 56) (emphasis in original). The Court finds Matsu’s 

argument preposterous. 

The day [redacted]was injured, he was clearly the “Operator” of Press Number 10 at the 

beginning of the shift since he was “pushing the control button” for approximately four hours 

before he switched tasks with Carter. To hold otherwise would run counter to the explicit 

purpose of section 2(b) of the Act “to assure as far as possible every working man and woman in 

the Nation safe and healthful working conditions.” 29 U.S.C. §651(b). Furthermore, to require 

an employer to train employees who operated a mechanical press full-time and have no such 

requirement for temporary employees who were required to fill in as operators is absurd. “[T]he 

law tries to avoid absurd results.” Cox Enterprises, Inc. v. News-Journal Corp., 794 F.3d 1259 n. 

89 (11th Cir. July 22, 2015) (citation omitted). “Interpretations of a statute which would produce 

absurd results are to be avoided if alternative interpretations consistent with the legislative 

purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). 

Therefore, the Court concludes the cited standard clearly applied to the cited condition. S. Pan 

Servs., 25 BNA OSHC at 1085. 

Compliance with the Terms of the Standard 

The Secretary alleges Matsu failed to “train and instruct” [redacted]“in the safe method 

of work before starting” work on the mechanical presses. “To establish noncompliance with a 

training standard, the Secretary must show that the cited employer failed to provide the 

instructions that a reasonably prudent employer would have given in the same circumstances. See 

Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1019-20 (No. 87-1076, 1991); El Paso 

Crane and Rigging Co., 16 BNA OSHC 1419, 1424 (No. 90-1106, 1993).” N & N Contractors, 

Inc., 18 BNA OSHC 2121, 2126 (No. 96-0606, 2000). 

Michael Sebastian was a Surge temporary employee for about a year-and-a-half years, 

and has been a Matsu employee for about four years. (Tr. 982-983.) He has been a press 

operator for about three years and operated Press Number 10 on the first shift. (Tr. 982, 986.) 

He referred to Surge employees as “associates” and differentiated between Operators, who press 

the activation buttons for the press, and helpers, who load blanks into the dies of the press. (Tr. 

988.) He was not an Operator when he was a Surge employee. (Tr. 984.) While he was 

employed by Surge, he “mostly loaded blanks and draws into the press” and “checked parts at 
−37−

the end of the press.” (Id.) After he became a Matsu employee, Michael Sebastian was assigned 

to operate the mechanical presses and received on-the-job training by the supervisor at the time, 

Jason Dugger. (Tr. 983-984.) “There was a lot of training on different functions of the 

progressive presses, how to load and unload dies as well as loading up the steels and the coils 

and stuff like that.” (Tr. 985) (emphasis added). When he was a Surge associate, he did not fill 

out an inspection sheet, and before he became an Operator, he received training related to the 

inspection sheet from Chris Hall, his team leader. (Id.) 

Michael Sebastian testified he worked on another press for eight months before he 

received “kind of a promotion to Press 10.” (Tr. 986.) He stated moving to Press Number 10

was a promotion because it “is a more critical press in the company.” (Tr. 1010, 1013.) Matsu 

also provided Michael Sebastian with additional training on how Press Number 10 differed from 

the previous press he had worked on. (Tr. 986.) According to Michael Sebastian, Surge 

employees were not Operators and were not allowed to operate the press, and on average, about 

three months before they were “hired in” by Matsu. (Tr. 988.) Michael Sebastian testified he had 

never seen a Surge employee operate the press. (Tr.1010.) The Court credits this portion of his 

testimony since it was corroborated by the party admission of Patterson, Matsu’s Human 

Resources Manager, that Surge associates were not allowed to operate the press. (Tr. 1081-82.) 

In contrast to Sebastian’s gradual introduction to the mechanical presses and his 

systematic training on them, [redacted]testified he was pulled from his janitorial duties “maybe a 

week or maybe a week-and-a-half into my job” to load blanks into a mechanical press. (Tr. 137.) 

[redacted]’s only “training” prior to this assignment consisted of the approximately two-minute 

power point presentation Surge’s supervisor showed the three applicants their first day at 

Matsu’s facility. (Tr. 237.) Contrary to Sebastian’s and Patterson’s testimony that Surge 

employees were not supposed to be operators, [redacted]was in fact the “operator” for the first 

half of the shift. (Tr. 154-155, 221.) 

[redacted]was the only eyewitness to his accident who testified. In its brief, Matsu 

asserts [redacted]“lunged into the point of operation to make a part adjustment,” relying on its 

“Supervisor’s Incident Investigation Report,” purportedly prepared by Todd, Matsu’s General 

Manager, which placed the blame on [redacted]for his injuries. (Matsu Post-Trial Br., p. 10; Ex. 

R-12.) The Court finds no merit in this argument. As indicated supra, [redacted]credibly 
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testified he was standing on his “tippy toes” inside the machine at the time of the accident. (Tr. 

157.) Significantly, Matsu did not call Carter to testify and Carter was the only other eyewitness 

to the accident—he alone could have corroborated the position taken by Matsu in this litigation

and refuted [redacted]’s testimony—yet Matsu elected not to call him as a witness, even though 

Matsu listed Cater as a witness it “may” have at trial. Matsu’s failure to call Carter as a witness 

raises an inference his testimony would be unfavorable to the company’s position. Capeway 

Roofing Systems, 20 BNA OSHC at 1342-1343. 

Although Matsu offers Todd’s “Supervisor’s Incident Investigation Report” as evidence 

of [redacted]’s culpability, the Court considers this report to be a self-serving document drafted 

with the intention of assigning fault for the injury to [redacted], a temporary Surge employee, 

and exonerating Carter, Matsu’s employee, who was the operator at the time of the accident and 

in control of the press’s cycle. Again, Matsu failed to call to testify its General Manager, Todd, 

the purported author of that report. Matsu’s failure to call Todd as a witness raises an inference 

his testimony would not support the company’s position, Capeway Roofing Systems, 20 BNA 

OSHC at 1342-1343, and thus, Todd’s purported Investigative Report lacks the assurances of 

reliability present in [redacted]’s testimony. Regina, 15 BNA OSHC at 1050. The Court 

therefore gives little weight to this report and finds the preponderance of evidence establishes

[redacted]did not “lunge” into the point of operation to make a part adjustment, but rather, was 

standing on his “tippy toes” inside the machine at the time of the accident.

As to training,—or, in this case, lack of training— significantly, as indicated supra, 

Wolfsberger testified the power point presentation on safety shown during [redacted]’s 

orientation was not adequate to train an employee to safely operate a mechanical press, 

especially since Wolfsberger had never operated a mechanical press and he was not qualified to 

train anyone in press safety. Clearly, and tragically, the training provided to [redacted]was not 

tailored to the needs of an employee such as [redacted]with no experience working on a 

mechanical press. Although Sebastian received additional specialized training before he became 

an operator on different functions of the progress presses, such as how to load and unload dies as 

well as loading up the steels and the coils, [redacted]received no such training. Wolfsberger 

described his surprise when he learned [redacted]was the employee who had been injured on 

Press Number 10. 
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Wolfsberger: I saw [Pinchon] there and I asked him what happened. He said somebody’s 

hands got caught in the press. I asked him who it was, and he said “[redacted].” 

Q.: What was your response?

Wolfsberger: “Why in the hell was he on a press?”

Q.: Why would you say that? 

Wolfsberger: Because he should not have been on the press. There was no reason for it. 

Q.: Why?

Wolfsberger: He was a janitor. He wasn’t trained.

Q.: What did Mr. Pinchon tell you about that? 

Wolfsberger: That they were behind and they needed help to get the parts done. 

(Tr. 255.) The Court concludes the Secretary has established Matsu failed to adequately train 

and instruct [redacted]in the safe use of mechanical presses as cited in Item 5a. 

The Secretary also alleges Matsu failed to “insure by adequate supervision that correct 

operating procedures [were] being followed.” [redacted]testified that when Hall pulled him from 

his regular duties, Hall led him over to the press, made sure he had protective sleeves, gloves, 

and glasses, and “then he’d walk off.” (Tr. 151.) [redacted]testified neither Pinchon nor Hall 

ever came by to check on him once he was assigned to a press. (Tr. 155-56.) Matsu did not call 

either Pinchon or Hall to testify regarding their supervision of [redacted]. The Court infers from 

this that the testimony of Pinchon and Hall would fail to support its position that Matsu 

adequately supervised [redacted]. The Court concludes the Secretary has established Matsu 

failed to adequately supervise [redacted]as cited in Item 5b.

Employee Access to the Violative Condition 

Matsu exposed [redacted] to the hazard of entering the danger zone of the press’s point of 

operation without adequate safety training or supervision. As indicated supra, [redacted]’s left 

hand was flattened “like a pancake” and some of his left hand fingers were amputated by the 

press. [redacted]’s right was completely crushed by the press and was eventually amputated to 
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the middle of his forearm. Clearly, [redacted]’s access to the hazardous condition was 

established.

Employer Knowledge 

The Secretary must establish Matsu knew of the violative condition. Because section 

1910.217(f)(2) requires the employer to provide safety training and supervision to employees, 

employer knowledge is generally established along with employer noncompliance. “The fourth 

prong of [the Secretary’s burden of proof]—employer knowledge of the violative condition—

will almost invariably be present where the alleged violative condition is inadequate training of 

employees. See e.g., Compass Envtl., Inc. v. OSHRC, 663 F.3d 1164, 1168 (10th Cir. 2011) 

(citing e.g., Andrew Elec. Co., 22 BNA OSHC 1593 (No. 08-0103, 2009) (ALJ) (“The standard 

at section 1926.21(b)(2) addresses safety training, so the employer necessarily knows whether or 

not it instructed each employee in the recognition and avoidance of unsafe conditions....”); Lane 

Constr. Corp., 23 BNA OSHC 1097 (No. 09-0348, 2009) (ALJ) (“As the employer, Lane had 

actual knowledge of its training program.”)). 

An employer's obligation to train is “dependent upon the specific conditions [at the 

worksite], whether those conditions create a hazard, and whether the employer or its industry has 

recognized the hazard.” W.G. Fairfield Co., 19 BNA OSHC 1233, 1236 (99-0344, 2000). 

“Employees must be given instructions on ‘(1) how to recognize and avoid the unsafe conditions 

which they may encounter on the job, and (2) the regulations applicable to those hazardous 

conditions.’” Capform Inc., 19 BNA OSHC 1374, 1376 (No. 99-0322, 2001) aff'd, 34 F. App'x 

152 (5th Cir. 2002) (unpublished) (quoting Superior Custom Cabinet Co., 18 BNA OSHC 1019, 

1020 (No. 94-200, 1997)). 

Here, although Michael Sebastian received additional specialized training before he 

became an operator on different functions of the progress presses, such as how to load and 

unload dies as well as loading up the steels and the coils, [redacted] received no such training. 

Despite this lack of training, Pinchon admonished [redacted] not to tell anybody that Pinchon 

had been putting [redacted] on the presses. The Court finds Matsu “failed to provide the 

instructions that a reasonably prudent employer would have given in the same circumstances.” El 

Paso Crane & Rigging, 16 BNA OSHC at 1424. The Court concludes the Secretary has 
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established Matsu knew or should have known it had failed to adequately train and supervise 

[redacted] in the safe method of operating a mechanical press. 

Classification

The Secretary classified the violation as serious. As indicated supra, a serious violation 

is one that carries a substantial probability that death or serious physical harm could result. 

[redacted] was permanently disabled when the crowder bar safeguard failed to keep him within 

the sensing area of the light curtain. Therefore, the violations met the statutory requirement to be 

classified as serious. Thus, the Court concludes Items 5a and 5b should be affirmed.

Infeasibility of Compliance Defense

In Matsu's Answer, it raised as its fourth affirmative defense, “[t]he means of compliance 

prescribed by the applicable standards cited by Complainant would have been infeasible under 

the circumstances.” (Answer, p. 3.) In its brief, Matsu asserts Citation 1, Item 5b must be 

vacated because “OSHA offers no evidence that its ill-defined proposed level of supervision was 

feasible.” The Court finds no merit in these arguments since again, it is Matsu, not the Secretary, 

that has the burden of proof on this affirmative defense. As such, in the Eleventh Circuit, Matsu 

must prove “(i) that compliance with a particular standard either is impossible or will render 

performance of the work impossible; and (ii) that it (the employer) undertook alternative steps to 

protect its workers (or that no such steps were available).” M.C. Dean, Inc. v. Sec'y of Labor, 505 

F. App'x 929, 936-37 (11th Cir. 2013) (citing Harry C. Crooker & Sons, Inc. v. OSHRC, 537 

F.3d 79, 82 (1st Cir.2008)). 

Here, Matsu presented no evidence “(i) that compliance with a particular standard either 

is impossible or will render performance of the work impossible; and (ii) that it undertook 

alternative steps to protect its workers (or that no such steps were available).” Therefore, Matsu 

has failed to establish the affirmative defense of infeasibility. Thus, the Court concludes Items 

5a and 5b should be affirmed. 

Item 6, Alleged Violation of Section 1910.242(b) of the

General Hand and Portable Powered Tools and Equipment Standard

The Secretary alleges in Item 6 Matsu committed a serious violation of section 

1910.242(b), a provision in the General Hand and Portable Powered Tools and Equipment 

standard, which provides: “[c]ompressed air shall not be used for cleaning purposes except 
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where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal 

protective equipment.” Specifically, the Secretary asserts that on or about April 24, 2013, in the 

Tool and Die Shop Matsu “failed to reduce compressed air nozzles used for cleaning metal parts 

to less than 30 p.s.i. Air nozzles were used at 85 p.s.i.”
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Applicability

Section 1910.242(b) is found in Subpart P—Hand and Portable Powered Tools and 

Other Hand-Held Equipment. Section 1910.242 is captioned “Hand and portable powered tools 

and equipment, general” and subsection (b) refers to “Compressed air used for cleaning.” 

Therefore, the Court concludes the cited standard clearly applied to the cited condition. S. Pan 

Servs., 25 BNA OSHC at 1085. 

Compliance with the Terms of the Standard 

During his April 24, 2013, inspection of Matsu’s tool and die shop, Vernon observed an 

employee using a drilling machine with an air nozzle next to him. (Tr. 54.4) Tool and die 

makers use compressed air from air nozzles to blow away metal chips and shavings produced 

during the machining process. (Tr. 543.) Vernon observed the air nozzle appeared to be 

modified. (Tr. 542.) He testified, “I took my certified air tester and I tested it to see if it was 

going to blow 30 p.s.i. and it read 85 p.s.i.” (Id.) Todd told Vernon in an interview on August 

16, 2013, after the inspection he had replaced all of the air nozzles in the tool and die shop 

because they had all been modified to above 30 p.s.i. (Tr. 543.) The Court concludes the 

Secretary has established Matsu failed to comply with the terms of § 1910.242(b). 

Employee Access to the Hazardous Condition 

 Vernon observed a Matsu tool and die maker using a drilling machine with the 

noncompliant air nozzle readily available for use. Todd conceded all of the air nozzles in the 

tool and die shop had been modified. Vernon testified the hazard created by using compressed 

air for cleaning that was higher than 30 p.s.i. is that metal chips and shavings could be blown 

into an employee’s hands, face and eyes. (Tr. 545.) Therefore, the Court concludes the Secretary 

has established Matsu’s tool and die makers had access to compressed air used for cleaning that 

had not been reduced to less than 30 p.s.i. 

Employer Knowledge 

Matsu contends the Secretary failed to establish the company knew the air nozzle Vernon

tested exceeded the allowable p.s.i. Specifically, Matsu argues “OSHA never had any evidence 

that Matsu was aware of the nozzle’s existence—let alone that Matsu used it on a hose for 

cleaning with compressed air. OSHA did not even offer evidence concerning how long the 

nozzle had been on Matsu’s premises.” (Matsu’s Post-Trial Br., p. 63.) The Court does not 
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agree. Although the Secretary adduced no evidence Matsu had actual knowledge its tool and die 

makers were using noncompliant air nozzles, the record clearly established Matsu had 

constructive knowledge because it could have known of the violative condition with the exercise 

of reasonable diligence. 

On August 16, 2013, Vernon interviewed Todd and when Vernon asked Todd if they 

replaced any air nozzles as a result of them being defective, Todd admitted they replaced ten. 

(Tr. 543.) Since Tate was Matsu’s tool room supervisor, he was present in the tool room on a 

daily basis where modified air nozzles were in plain sight. Vernon was able to tell the air nozzle 

he tested was modified just by looking at it. (Tr. 542.) Todd stated that when he checked the air 

nozzles in the tool room, every one of them (“at least 10”) had been modified. The uniformity of 

the modifications suggests it was the tool and die makers’ standard practice to increase the p.s.i. 

of the air nozzles. With the exercise of reasonable diligence, Tate, Matsu’s supervisor, should 

have observed and abated the modifications. 

[T]he conspicuous location, the readily observable nature of the violative

condition, and the presence of [the employer’s] crews in the area warrant a 

finding of constructive knowledge.” Kokosing Constr. Co., 17 BNA OSHC 1869, 

1871 (No. 92-2596, 1996). Additionally, constructive knowledge may be found 

where a supervisory employee was in close proximity to a readily apparent 

violation. Hamilton Fixture, 16 BNA OSHC [at 1089]. 

KS Energy Services, Inc., 22 BNA OSHC 1261, 1265-1266 (No. 06-1416, 2008). Therefore,

Tate’s constructive knowledge of the use of the noncompliant air nozzles is imputed to Matsu. 

ComTran Grp., 722 F.3d at 1307; Access Equip. Sys., 18 BNA at 1726. Thus, the Court 

concludes the Secretary has established Matsu had constructive knowledge of its noncompliance 

with section 1910.242(b). 

Classification

The Secretary classified the violation as serious. As indicated supra, a serious violation 

is one that carries a substantial probability that death or serious physical harm could result. 

Since the use of compressed air exceeding 30 p.s.i. may blow metal chips and shavings into an 

employee’s exposed skin and eyes, resulting in cuts or serious eye injuries, Item 6 was properly 

classified as serious. Therefore, the Court concludes Item 6 should be affirmed.
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B. Alleged Repeated Violation 

Section 17(a) of the Act provides that any employer who “repeatedly violates the 

requirements of section 5 of the Act, any standard, rule or order promulgated pursuant to section 

6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of 

not more than $70,000 for each violation, but not less than $5,000 for each willful violation.” 29 

U.S.C. §666(a). “Congress, unfortunately, did not define the term ‘repeatedly.’” Bunge, 638 

F.2d at 836. However, a Commission majority finally construed “repeatedly” in Potlatch Corp., 

7 BNA OSHC 1061, 1063 (No. 16183, 1979), where it held that a violation was repeated if, “at 

the time of the alleged repeated violation, there was a Commission final order against the same 

employer for a substantially similar violation.” See also Deep S. Crane & Rigging Co., 23 BNA 

OSHC 2099, 2106 (No. 09-0240, 2012), aff'd Deep S. Crane & Rigging Co. v. Harris, 535 F. 

App'x 386 (5th Cir. 2013). 

The Eleventh Circuit held a violation is “repeated” for purposes of 29 U.S.C. §666(a) if 

“(1) the same standard has been violated more than once and (2) there is a ‘substantial similarity 

of violative elements’ between the current and prior violations” and further, “[t]he prior citation 

on which the repeat violation is based must have become a final order of the Commission.” D & 

S Grading Co. v. Sec’y of Labor, 899 F.2d 1145, 1147 (11th Cir. 1990) (citing Bunge, 638 F.2d 

at 837). “Once substantial similarity is shown, the burden shifts to the employer to disprove 

substantial similarity or prove any affirmative defense it may have.” Id., 899 F.2d at 1148 (citing 

Bunge, 638 F.2d at 838).

Citation 2, Item 1, Alleged Violation of

Section 1910.212(a)(1) of the Machine Guarding Standard

 Under section 1910.212(a)(1), the Secretary is required “to prove that a hazard within the 

meaning of the standard exists in the employer's workplace.” Buffets, Inc., 21 BNA OSHC 1065, 

1065 (No. 03-2097, 2005) (citing ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1147 (No. 

88-1250, 1993) (citing Armour Food Co., 14 BNA OSHC 1817, 1821 (No. 86-247, 1990)), rev'd 

on other grounds, 2 F.3d 653 (8th Cir. 1994)). Specifically, the Secretary “must show that 

employees are in fact exposed to a hazard as a result of the manner in which the machine 

functions and is operated.” Id. (citing Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1421 (No.

89-553, 1991)). The mere fact that it is not impossible for an employee to come into contact with 
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the moving parts of a particular machine does not, by itself, prove that the employee is exposed 

to a hazard. Armour Food, 14 BNA OSHC at 1821. 

The Secretary alleges in Citation Number 2, Item 1 Matsu committed a repeat violation 

of section 1910.212(a)(1), a provision in the Machine Guarding standard, which mandates, 

“[o]ne or more methods of machine guarding shall be provided to protect the operator and other

employees in the machine area from hazards such as those created by point of operation, ingoing 

nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier 

guards, two-hand tripping devices, electronic safety devices, etc.” Specifically, the Secretary 

asserts that on or about April 24, 2013, in the tool and die shop, there was no machine guard to 

protect employees from the point of operation on the (a) RD-1600 Sharp Radial Arm Drill, (b)

Takang Turret Milling Machine, (c) Sharp Milling Machine, and (d) Sharp-KMA Milling and 

Drilling Machine. 

Applicability

Section 1910.212(a)(1) is found in Subpart O—Machinery and Machine Guarding. 

Section 1910.212 is captioned “General requirements for all machines.” This standard applies to 

machines used in metal manufacturing. Oberdorfer Indus., 20 BNA OSHC at 1321. Citation 

Number 2, Item 1 cites four instances of machines that were not equipped with guards for their 

points of operation. Therefore, where such machines expose employees to injury, the machines 

must be equipped with a guard. 29 C.F.R. § 1910.212(a)(l). Thus, the Court concludes the cited 

standard applied to the cited conditions. S. Pan Servs., 25 BNA OSHC at 1085.

Compliance with the Terms of the Standard 

 Vernon learned that on April 19, 2013, Matsu tool and die maker [redacted] sustained an 

amputation while using the Sharp Radial Arm Drill Press in the tool and die shop. Matsu’s 

Supervisor Incident Investigation Report stated: 

[redacted] was working on a drill press tapping the threads on a die he was 

working on. Mr. [redacted] reached for something inside the work area. He was 

wearing gloves which is against procedure. As he reached inside of the work area 

the backside of his glove became caught on the tap in the spindle.31 The spindle 

twisted the glove and in turn wrapped his left hand around the tap backwards 

 

31 At trial, Matsu referred to it as “the rotating chuck or spindle.” (Tr. 734.)
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causing severe trauma to the left thumb and middle fingers. [redacted] was taken 

to Huntsville Hospital where he underwent surgery to repair his left hand. 

(Tr. 658; Ex. C-20.) Vernon inspected Matsu’s tool and die shop on April 24, 2013, and 

observed the four cited machines were not guarded. (Ex. C-19; Tr. 625.) Specifically, while 

Vernon was inspecting the tool and die area, he observed some of the machines were set up with 

a chuck. (Tr. 658.) When Vernon asked if the machines had guards for the rotating parts, he was 

told they did not. (Id.) Vernon took photographs of the cited machines.32 In all of the 

photographs, the unguarded rotating chucks or spindle were visible. Therefore, the Court 

concludes the Secretary established Matsu failed to guard the rotating parts of the cited 

machines.

Employee Access to the Hazardous Condition 

Section 1910.212(a)(1) is a general standard. It applies generally to protect employees 

who are exposed to point-of-operation hazards. Unlike specific standards, the Secretary must 

show that the hazard addressed by the general standard existed. Con Agra Flour Milling Co., 16 

BNA OSHC 1137, 1147 (No. 88-1250, 1993). The two seminal Commission cases that are 

relevant to the Court’s inquiry here are Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 

1980), and Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). Gilles & Cotting

addressed the general question of employee exposure to hazards. Rockwell addressed the specific 

question of employee exposure arising from the actual operation of a machine. 

In Gilles & Cotting, the Commission set forth a test for employee exposure based on the 

principle of “reasonable predictability.” 3 BNA OSHC at 2003. The Commission held that the 

Secretary bore the burden of proving “that employees either while in the course of their assigned 

working duties, their personal comfort activities while on the job, or their normal means of 

ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger.” Id.33 

In Rockwell, the Commission set forth the standard of employee exposure to hazards presented 

 

32 Pages 3 and 4 of Ex. C-19 show the RD-1600 Sharp Radial Arm Drill, cited in Instance (a). Pages 5 and 6 of Ex. 

C-19 show the Takang Turret Milling Machine, cited under Instance (b). Pages 7 and 8 of Ex. C-19 show the Sharp 

Milling Machine, cited under Instance (c) (page 8 shows a Matsu employee using the unguarded machine). Pages 9 

and 10 of Ex. C-19 shows the KMA-3 Sharp-KMA Milling and Drilling Machine, cited under Instance (d).

33 See also Phoenix Roofing Inc., 17 BNA OSHC 1076, 1078 n. 6 (No. 90–2148, 1995); Carpenter Contracting 

Corp., 11 BNA OSHC 2027, 2029–31 & n. 3 (No. 81–838, 1984); Otis Elevator Co., 6 BNA OSHC 2048, 2050 

(No. 16057, 1978).
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by the employee's operation of a machine. The Commission stated: “The mere fact that it was not 

impossible for an employee to insert his hands under the ram of a machine does not itself prove 

that the point of operation exposes him to injury.” 9 BNA OSHC at 1097–98. “Whether the 

point of operation exposes an employee to injury must be determined based on the manner in 

which the machine functions and how it is operated by the employees.’ Id. 

Here, the danger zone was where “the rotating parts are or the part is— the part that's 

being manipulated.” (Tr. 660.) Vernon testified employees using the machines had access to the 

rotating parts, and when they were turned on and rotating, could be exposed to the rotating parts 

resulting in lacerations, fractures, and amputations. (Tr. 653, 659.) They were also exposed to 

the hazards of metal shavings flying off from the drilled material. (Tr. 628.) Vernon observed an 

employee using the Sharp Milling Machine cited in instance (c) of Citation 2, Item 1. (Tr. 662-

663.) The employee was using the machine to drill a piece of metal stock. (Tr. 663, 669-671; see 

also C-19, p. 6.) The machine did not have a guard in place or a guard available for use at the 

time it was being used and the employee was not wearing eye protection. (Tr. Vol. III, pp. 662-

663; see also Ex. C-l9, p. 6.) 

Matsu argues the Secretary failed to prove employees actually were exposed to hazards 

created by the rotating parts of the cited machines. (Matsu Post-Trial Br., p. 26.) In support of 

this position, Matsu relies on Jefferson Smurfit Corp., 15 BNA OSHC 1419, 1422 (No. 89-553, 

1991). (Matsu Post-Trial Br., p. 65.) In Jefferson Smurfit, the Commission held in order for the 

Secretary to meet his burden, he “must do more than show that it may be physically possible for 

an employee to come into contact with the unguarded machinery in question.” However, the 

present case is distinguishable from Jefferson Smurfit since here, the Secretary did do more— he

proved, and Matsu does not dispute, that [redacted] was actually injured when he came into 

contact with the Sharp Radial Arm Drill Press. Had Matsu properly guarded that machine, 

[redacted] would not have had access to the zone of danger. 

Under Commission precedent, the Secretary must show either that Matsu’s employees 

were actually exposed to the violative condition or that it is “reasonably predictable by 

operational necessity” that “employees have been, are, or will be in the zone of danger.” S&G 

Packaging Co., LLC, 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (emphasis added) (citing 

Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citing Gilles & 
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Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976)). Therefore, as to the Sharp Radial 

Arm Drill Press, the Secretary has established actual exposure to the violative condition cited 

condition. 

As to the remaining three cited machines, employee entry into the zone of danger may 

also be reasonably predictable when such entry occurs by “unsafe operating procedures, poor 

training, or employee inadvertence” and “carelessness.” H. B. Zachry Co. (Int'l), 8 BNA OSHC 

1669, 1674 (No. 76-2617, 1980) (citations omitted). Here, all of the alleged violations were 

grouped together “because they were substantially similar,” in that “they all operated as a drill—

they had a drill capacity to them,” and the hazard was the same, “there were rotating parts . . . the 

rotating spindle or the rotating drill bit or the rotating auger or the rotating chuck.” (Tr. 652-653, 

659.) Employees using the cited machines would be doing precise work. (Tr. pp. 659.) The 

machines were used by the tool and die maintenance employees as needed in order to fix other 

machines, fixtures, or parts necessary to continue production. (Tr. pp. 668, 671-672.) 

As such, the tool and die maintenance employees would use the cited machines to work 

on parts, fixtures, or stock varying in size from very large to very small. (Tr. pp. 668, 671-672; 

see also Ex. C-21.) When working on small parts, the employees would necessarily be in close 

proximity to the rotating chucks and spindles in order to perform the required tasks. (Tr. pp. 

659.) This close work increased the hazard of being pulled into the machines. (Tr. pp. 659.) 

Tarwater testified he worked with pieces of parts that were 12 inches or less with the 

drilling and milling machines in the die shop and on those smaller pieces, in order to do his job, 

“You'd have to be right there with it. . . . 6 or 8 inches” to the rotating chuck or the rotating 

spindles. (Tr. 94.) Since all of the cited machines operated as a drill, it was reasonably 

predictable at the time of Vernon’s inspection—as evidenced by [redacted] ’s accident during the 

week previous to the inspection, that Matsu’s employees have been, are, or will enter into the 

zone of danger “by operational necessity” or as the result of “unsafe operating procedures, poor 

training, or employee inadvertence” and “carelessness.” Therefore, the Secretary has established 

the element of exposure as to all four cited machines.

Matsu asserts [redacted] “was not performing any task remotely related to normal 

operation.” (Matsu Post-Trial Br., p. 66.) However, Matsu offers no probative evidence in 

support of this assertion. Rather, Matsu cites in part to Vernon’s testimony, which does not 
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support its position. (Id., n. 477; see also Tr. 729.) Matsu could have, but did not, call Mitchel to 

testify as to whether he was “performing any task remotely related to normal operation.” 

Significantly, Matsu also relies on its Supervisor’s Incident Investigation Report prepared by 

Tate after [redacted] ’s accident, which did not indicate [redacted] violated company policy by 

“reaching for something inside of the work area.” (Ex. C-20.) Matsu’s failure to call Tate as a 

witness raises an inference his testimony would not support Matsu’s position that [redacted] was 

“not performing any task remotely related to normal operation.” 

Clint Davis testified that although he was there the day of the accident, he did not witness 

the accident. (Tr. 962.) The only other evidence of record is the report itself, which indicated 

[redacted] was “performing regular duties at the time of the incident.” (Ex. C-20.) The Court 

therefore finds the preponderance of evidence establishes [redacted] was “performing regular 

duties at the time of the incident” that were “reasonably predictable by operational necessity.” 

Even assuming arguendo Matsu assertion is accurate that [redacted] “was not performing any 

task remotely related to normal operation,” then the accident was the result of either “unsafe 

operating procedures, poor training, or employee inadvertence” and “carelessness.” Either way, 

the Court concludes the Secretary has established the element of exposure. Because the Court 

finds that the unguarded points of operation of the cited machines exposed employees to injury 

contrary to section 1910.212(a)(1), the Secretary has satisfied his burden of proof. 

Employer Knowledge 

As indicated supra, when Vernon took photographs of the cited machines, the unguarded 

rotating chucks or spindle were clearly visible. Matsu does not dispute that it had previously 

been cited for violating the same standard and that the prior citation had become a final order and 

offered no evidence to rebut the Secretary's prima facie showing of similarity. Therefore, the 

Court concludes the Secretary has established Matsu had actual knowledge of its noncompliance 

with section 1910.212(a)(1). 

Repeat Classification

On October 30, 2010, OSHA conducted an inspection at Matsu’s Huntsville, Alabama 

facility. (Ex. C-18, p. 8.) During that inspection, the Compliance Safety and Health Officer 

observed that a drill press located in the maintenance shop was not provided with a guard so as to 

protect the operator from the rotating chuck and bit. (Id.) Matsu was issued a citation for 
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violating 29 C.F.R. 1910.212 (a)(1). (Id.) On June 8, 2011, Matsu and the Secretary entered into 

a settlement agreement reducing the violation to an other-than-serious violation of the Act, which 

became a final order of the Commission on August 8, 2011. (Id., pp. 11-16, 19.) 

Matsu argued at trial this item cannot be a repeat because in the settlement agreement the 

previous citation for this violation was reduced to nonserious. The Court does not agree. The 

classification of the prior violation is immaterial to the determination of whether the present 

violation is properly classified as repeat. By way of example, in three separate Commission 

cases involving repeat violations, each Judge affirmed the repeat violation, when the prior “other 

than serious” violation became a final order of the Commission. 

In Hubbard Constr. Co., 24 BNA OSHC 1689 (No. 11-3022, 2013)(ALJ), like the 

present case, the parties settled the prior citation as an “other than serious” violation through an 

informal settlement agreement, which became a final order of the Commission. Despite the 

different classifications, since the prior and present violations were of the same standard, Judge 

Coleman affirmed the present violation as a repeat violation. Likewise, in KS Energy Serv. Inc., 

23 BNA OSHC 1484 (No. 09-1272, 2011) (ALJ), Judge Loye affirmed a repeat violation where 

the parties settled the prior citation as an “other than serious” violation through an informal 

settlement agreement, which became a final order of the Commission. In Beverly EnterprisesAlabama, Inc., 19 BNA OSHC 1365 (No. 00-1357, 2001) (ALJ), Judge Spies also affirmed a 

repeat violation where the prior “other than serious” violation was not contested and became a 

final order of the Commission. 

Although the Court is not bound by these decisions, it agrees with them.34 The Court 

concludes when an employer violates the same standard more than once, it is properly 

considered a repeat violation if there is substantial similarity of violative elements and the prior 

violation has become a final order of the Commission, even when the prior final order of the 

Commission affirmed a violation as other-than-serious. Thus, the violation was properly 

classified as a repeated violation. 

 

34 See KS Energy Serv. Inc., 23 BNA OSHC 1483 (No. 09-1272, 2011) (citing Leone Constr. Co., 3 BNA OSHC 

1979, 1981 (No. 4090, 1976)) (finding that unreviewed administrative law judge decision does not constitute 

binding precedent for the Commission).
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Employee Misconduct Defense

In Matsu’s brief, it argues Citation 2 Item 1 must be vacated because Matsu can prove 

unpreventable employee misconduct. (Matsu Post-Trial Br., p. 63.) Specifically, Matsu asserts 

[redacted] “violated a rule forbidding gloves and his glove was caught by the chuck when he 

grabbed it.” (Id., p. 66.) Matsu again relies on its “Supervisor’s Incident Investigation Report” 

prepared by Tate after [redacted] ’s accident, also not called by Matsu to testify, which stated 

[redacted] violated policy by wearing gloves. (Ex. C-20.) However, this statement is 

corroborated by Patterson’ testimony that [redacted] violated the company’s policy by wearing 

gloves. (Tr. 1077-78.) Nonetheless, the cited standard requires physical guarding of hazards. 

Collator Corp., 3 BNA OSHC 2041 (No. 2004, 1976). 

As indicated supra, the affirmative defense of employee misconduct applies in situations 

in which the behavior of the employee, and not the existence of a violative condition, is at issue. 

As noted above, operation of the machines placed employees within the zone of danger. Here, 

however, Matsu created the violative conditions cited in Citation 2, Item 1 by failing to guard the 

points of operation for the four cited machines. And once again, the Court finds Matsu 

demonstrates “a basic misunderstanding of this affirmative defense.” The Secretary did not cite 

Matsu on how its employees were using the cited machines, but rather, cited Matsu for failing to 

guard them and regardless of how Matsu’s employees were using the cited machines, the 

machines were still unguarded in violation of section 1910.212(a)(1). Thus, even strict 

implementation and employee compliance with Matsu’s rules would not have obviated the 

guarding requirement imposed by the standard. S&G Packaging Co., LLC, 19 BNA OSHC at 

1507-1508. There is no work rule that, if communicated to employees, would change the fact 

that Matsu failed to properly guard the machines. Thus, Matsu failed to establish this defense. 

Infeasibility of Compliance Defense

In its brief, Matsu argues Citation 2, Item 1 must be vacated because “OSHA must be 

expected to prove that compliance is feasible.” (Matsu Post-Trial Br., pp. 60, 69.) Again, the 

Court finds no merit in this argument. Section 1910.212(a)(1) “has been recognized by the 

Commission as a performance standard, and as such the standard requires that the employer 

exercise a certain degree of judgment in evaluating whether its machinery is in compliance with 

the standard and what types of guarding methods would be appropriate to achieve compliance.” 
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Hamilton Die Cast, Inc., 11 BNA OSHC 2169, 2172 (No. 79-1686, 1984) (citing Stacey 

Manufacturing Co., 10 BNA OSHC 1534 (No. 76-1656, 1982); George C. Christopher & Son, 

Inc., 10 BNA OSHC 1436 (No. 76-647, 1982). 

As indicated supra, Matsu, not the Secretary, has the burden to prove this affirmative 

defense, Pitt-Des Moines, Inc., 16 BNA OSHC at 1433, and was required to show that the means 

of compliance set forth in the standard were infeasible and that there were no feasible alternative 

means of protection. M.C. Dean, 505 F. App'x at 936-37; V.I.P. Structures, Inc., 16 BNA OSHC 

at 1874. The standard indicates “[e]xamples of guarding methods are—barrier guards, two-hand 

tripping devices, electronic safety devices, etc.” 29 C.F.R. §1910.212(a)(1). Matsu failed to 

show why equipping the four cited machines with guards for their points of operation was not 

feasible and failed to show that there were no feasible alternative means of 

protection. Therefore, Matsu has again failed to establish the affirmative defense of 

infeasibility. Thus, the Court concludes Citation Number 2, Item 1 should be affirmed. 

C. Alleged Other-Than-Serious Violation 

As to an other-than-serious violation, “[w]here the Secretary does not allege, nor is there 

evidence to support a conclusion that there was a substantial probability that the violation could 

have resulted in death or serious physical harm, the violation is properly characterized “as otherthan-serious.” See Trinity Indus. Inc., 15 BNA OSHC 1579, 1588 (Nos. 88-1545, 88-1547, 

1992), rev'd and remanded by Reich v. Trinity Indus., Inc., 16 F.3d 1149 (11th Cir. 1994) 

(holding the Commission improperly applied the test for a “willful” violation). Thus, 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). 

Citation 3, Item 1, Alleged Violation of Section 1904.29(b)(3) 

of the Recordkeeping and Reporting Occupational 

Injuries and Illnesses Standard

The Secretary alleges in Citation Number 3, Item 1 Matsu committed an other-thanserious violation of section 1904.29(b)(3), which requires employers to “enter each recordable 

injury or illness on the OSHA 300 Log and 301 Incident Report within seven (7) calendar days 
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of receiving information that a recordable injury or illness has occurred.” Specifically, the 

Secretary asserts that on or about April 24, 2013, Matsu “failed to record an amputation lost time 

accident for a temporary employee supervised by Matsu Alabama on the OSHA 300 Log within 

7 days.” 

Applicability

Section 8(c)(1) of the Act requires all employers to keep such records as the Secretary of 

Labor and the Secretary of Health, Education, and Welfare might require by regulation. 29 

U.S.C. §657(c)(1). Section 8(c)(2) of the Act requires the Secretaries of the two departments to 

prescribe regulations requiring employers to keep records of work-related injuries and illnesses.

29 U.S.C. §657(c)(2). The Secretary’s cited regulation, section 1904.29(b)(3), is part of his 

Recording and Reporting Occupational Injuries and Illnesses standard found in Subpart C of 

Part 1904, which sets out its scope in a “Note to Subpart B,” that “All employers covered by the 

Occupational Safety and Health Act (OSH Act) are covered by these Part 1904 regulations.” 

Therefore, the Court concludes the cited standard clearly applied to the cited condition. 

Compliance with the Terms of the Standard 

 [redacted] sustained amputation and crushing injuries to his hands on April 2, 2013, at 

Matsu’s facility. His injuries resulted in “medical treatment beyond first aid,” and in his inability 

to perform any work for the foreseeable future. (Tr. 202-203.) Matsu stipulated it did not record 

[redacted]’s injuries on its OSHA 300 Log within seven days of the accident. (Tr. 552.) Based 

upon these undisputed facts, the Secretary asserts he has established Matsu violated section 

1904.29(b)(3). Matsu argues it was not required to record [redacted]’s injuries because Surge 

employed [redacted]. The Court does not agree with Matsu. 

Matsu contends it had agreed verbally with Surge that each company would record 

injuries on the OSHA 300 Log for its own employees. Patterson testified he and Surge vicepresident Melissa Chapman worked out an arrangement whereby each company kept a separate 

OSHA 300 Log for its employees. (Tr. 1052, 1069.) In its brief, Matsu cites to a November 21, 

2012, Standard Interpretation Letter purportedly issued by the Secretary and argues “[t]he 

foregoing forecloses the citation, which must be vacated.” (Matsu Post Trial Br., p. 71 n. 511.) 

However, any reliance by Matsu on this purported Standard Interpretation Letter was misplaced. 

First, this interpretation letter referenced in Matsu’s brief is not in evidence since Matsu failed to 
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tender a copy as an exhibit at trial, failed to attach it to his brief, and failed to move the Court to 

take judicial notice of it. See Fed. R. Evid. 201(c)(2). Like the Secretary, Matsu apparently 

assumed the Court would simply take judicial notice of the cited interpretation letter. However, 

the Court declines to do so since Matsu, like the Secretary, had ample opportunity at trial to

present any evidence it felt was relevant. Article II Gun Shop Inc., 16 BNA OSHC at 2036. 

More importantly, as indicated infra, the meaning of section 1904.31(b)(2) is clear and does not 

require administrative interpretation by the Secretary. 

The Court recognizes “that an agency's construction of its own regulations is entitled to 

substantial deference,” Georgia Pac. Corp. v. OSHRC, 25 F.3d 999, 1004 (11th Cir. 1994) 

(quoting Martin v. OSHRC, 499 U.S. 144, 150 (1991)), if the Secretary’s interpretation is 

“consistent with the regulatory language and is otherwise reasonable.” Id.; Martin, 499 U.S. at 

156 (emphasis in original); Brock, 832 F.2d at 569-70. However, “under the well-known 

principles enunciated in Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-43 (1984), we 

first examine the language of the standard and then, if necessary, the available legislative history, 

to determine the standard’s meaning.” Nooter Constr. Co., 16 BNA OSHC 1572, 1574 (No. 91-

237, 1994) (emphasis added). 

Section 1904.31(b)(2), another provision in the Recordkeeping and Reporting 

Occupational Injuries and Illnesses standard, provides that if an employer “obtain[s] employees 

from a temporary help service, employee leasing service, or personnel supply service,” the 

employer “must record these injuries and illnesses if [the employer] supervise[s] these 

employees on a day-to-day basis.” 29 C.F.R. § 1904.31(b)(2). It also indicates that “the 

personnel supply service, temporary help service, employee leasing service, or contractor” is not 

required to record the injuries or illnesses occurring to temporary, leased or contract employees 

that “[the employer] supervise[s] on a day-to-day basis.” 29 C.F.R. § 1904.31(b)(4). Further, 

“the temporary help service, employee leasing service, personnel supply service, or contractor 

should coordinate [with the employer’s] efforts to make sure that each injury and illness is 

recorded only once: either on [the employer’s] OSHA 300 Log (if the employer] provide[s] dayto-day supervision) or on the other employer’s OSHA 300 Log (if that company provides day-today supervision).” Id. 
−56−

The meaning of section 1904.31(b)(2) is clear and does not require administrative 

interpretation by the Secretary. The record reflects Matsu carried on the day-to-day supervision 

of [redacted] and under section 1904.31(b)(2), Matsu, not Surge, was required to comply with 

the cited provision of the standard. Therefore, the Court concludes the Secretary established 

Matsu failed to comply with the cited provision. 

Employee Access to the Violative Condition 

Commission precedent has established that the Secretary need not prove harm to any 

particular employee resulting from a recordkeeping violation since the recordkeeping 

requirements of the Act “play a crucial role in providing the information necessary to make 

workplaces safer and healthier.” Kaspar Wire Works, 18 BNA OSHC at 2178 (citing General 

Motors Corp., 8 BNA OSHC 2036, 2041 (No. 76-5033, 1980)). “[A] requirement that the 

Secretary demonstrate exposure of employees to a hazard is not appropriate in cases dealing with 

recordkeeping regulations. . . . Recordkeeping regulations . . . are not intended to eliminate an 

existing and identified hazard in a particular workplace. . . . [T]hey are promulgated pursuant to 

a different section of the Act, section 8, which mandates that the Secretary prescribe 

recordkeeping and reporting requirements for work-related injuries and illnesses and authorizes 

the Secretary to make other provisions as the Secretary deems necessary for the implementation 

of the Act.” Thermal Reduction Corp., 12 BNA OSHC 1264, 1268 (No. 81-2135, 1985). 

Therefore, “the Secretary need not prove harm to any particular employee resulting from a 

violative record, to establish a violation.” Gen. Dynamics Corp., 15 BNA OSHC 2122, 2132 n. 

17 (No. 87-1195, 1993). 

Employer Knowledge 

In the context of recordkeeping violations, the Secretary must show that the employer 

knew, or with the exercise of reasonable diligence could have known, of the errors and omissions 

during the limitations period.” Gen. Dynamics, 15 BNA OSHC at 2132 n. 16. Here, Matsu 

admits that it was aware of the Act's recordkeeping requirements (Tr. 552.) Matsu was also 

aware that [redacted] suffered a serious, recordable injury while working on a mechanical power 

press at its Huntsville plant. (Ex. C-26.) Matsu was also aware that Surge did not have any 

supervisors present on the third shift and that Surge employees working on that shift were 

supervised by Matsu on a day-to-day basis. (Tr. pp. 138-139, 143-144, 252-253, 594-596.) 
−57−

Significantly, Vernon met with representatives from Matsu and Matsu’s counsel on April 

3, 2013, and informed Matsu that as the employer supervising and directing [redacted]'s day-today work, it had the responsibility to record his injury. (Id.) Despite this assistance and 

information, Vernon discovered that Matsu had not recorded [redacted]'s injury on its OSHA 300 

Log when he returned to the Matsu facility on April 24, 2014. (Id.; Ex. C-25.) Therefore, the 

Court concludes the Secretary has established Matsu had actual knowledge of its noncompliance 

with section 1904.29(b)(3). Further, with the exercise of reasonable diligence Matsu could have 

known of the omissions during the recording period. 

Classification

An “other-than-serious” violation is different from a “de minimis violation,” which 

according to the Commission, “has no direct or immediate relationship to safety or health.” 

Holly Springs Brick & Tile Co., 16 BNA OSHC 1861, 1865 (No. 90-3312, 1994). Violations 

have been classified as de minimis when the Commission has found that the violations were so 

‘trifling’ that the entry of an abatement order or the assessment of a penalty was inappropriate. 

General Motors, 8 BNA OSHC at 2041 (citing Continental Oil Co., 7 BNA OSHC 1432 (No. 

13750, 1979), and cases cited therein). In addition to a technical noncompliance with a standard, 

a de minimis violation is one “which the departure from the standard bears such a negligible 

relationship to employee safety as to render inappropriate the assessment of a penalty or the 

entry of an abatement order.” Erie Coke Corp., 15 BNA OSHC 1561, 1571 (No. 91-3606, 1992). 

However, the reporting requirements of the Act “cannot be properly classified as de 

minimis, for to do so would weaken significantly the reporting requirements of the Act and the 

Secretary’s regulations.” General Motors, 8 BNA OSHC at 2041. Since the Secretary does not 

allege, nor is there evidence to support a conclusion that there was a substantial probability that 

the violation could have resulted in death or serious physical harm, the recordkeeping violation 

was properly characterized as “other-than-serious.” Thus, the Court concludes Citation Number 

3, Item 1 should be affirmed. 

IV. PENALTY DETERMINATION

“The Commission has the exclusive authority to assess penalties once a proposed penalty 

is contested.” Chao v. OSHRC, 401 F.3d 355, 376 (5th Cir. 2005) (citation omitted). The 

Commission is to “giv[e] due consideration to the appropriateness of the penalty with respect to 
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[1] the size of the business of the employer being charged, [2] the gravity of the violation, [3] the 

good faith of the employer, and [4] the history of previous violations.” 29 U.S.C. § 666(j). 

“These factors are not necessarily accorded equal weight....” Chao v. OSHRC, 401 F.3d at 376 

(citing J.A. Jones Constr., 15 BNA OSHC at 22016). “Gravity of violation is the key factor.” 

See id. The Court has considered Matsu’s size, history of violations, and good faith, but finds 

the gravity of the serious and repeated violations warrant the assessment of the maximum 

penalties, even if Matsu rated “perfect marks on the other three criteria.” Nacirema Operating 

Co., Inc., 1 BNA OSHC 1001, 1003 (No. 4, 1972). 

Further, any basis for giving good faith effect to reduce the penalty is diminished by 

Matsu’s “failure to adequately prepare and train” [redacted], an inexperienced employee, “which 

demonstrates a lack of good faith.” MEI Holdings, Inc. 18 BNA OSHC 2025, 2029 (No. 96-740, 

2000). See also Gen. Motors, 22 BNA OSHC at 1048 (giving no credit for good faith when 

management tolerated and encouraged hazardous work practices); Access Equipment Systems, 

Inc., 18 BNA OSHC 1718, 1728-29 (No. 95-1449, 1999) (no reduction for good faith where 

there was evidence for and against good faith); Hern Iron Works, Inc., 16 BNA OSHC 1619, 

1625 (No. 88-1962) (lack of good faith as a significant factor in penalty assessment).

Likewise, with respect to the “history of prior violations” factor, the Court considered the 

October 30, 2010, citation, which became a final order of the Commission on August 8, 2011, 

issued to Matsu for failing to provide a guard on a drill press located in the maintenance shop. 

“At a minimum, the [2010] citation put the company on notice that its safety precautions were 

inadequate. It also allowed [Matsu] sufficient time to take corrective action, as the instant 

violations did not occur until some [two and a half] years later.” D & S Grading, 899 F.2d at 

1148; Bunge, 638 F.2d at 838 n. 13. 

As to the gravity of the violations, all of the tool and die makers using Matsu’s 

mechanical presses were exposed on a daily basis to the unexpected energization of the 

mechanical presses on which they worked. Matsu’s failure to guard the rotating chuck and drill 

bit on the machines exposed the employees using those machines to the hazards associated with 

being caught up in a rotating part. Employees were also exposed to the hazard of crushing and 

amputation injuries due to Matsu’s failure to require the use of LOTO procedures for its tool and 

die makers adjusting or repairing dies in its mechanical presses. The use of compressed air 
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exceeding 30 p.s.i. also exposed employees to potential cuts or serious eye injuries. Given the 

extent of physical injuries that did occur, and the high probable extent of physical injuries should 

future accidents occur, the Court finds the gravity of all of these hazards, except the 

recordkeeping violation, are high. 

Matsu is subject to a civil penalty of up to $7,000.00 for each serious violation. 29 U.S.C. 

§666(b). The Secretary proposed the maximum statutory civil penalty of $7,000.00 for each 

individual and grouped serious violation in Citation Number 1, except Item 6, where he proposed 

a penalty of $4,000.00. For Citation Number 3, Item 1, the other-than-serious violation, Matsu is 

also subject to a civil penalty of up to $7,000.00. 29 U.S.C. §666(c). The Secretary proposed a 

penalty of $1,000.00 for Citation Number 3, Item 1. The Court finds the Secretary’s proposed 

penalties for Citation Number 1 and Citation Number 3 are appropriate, except for Citation 

Number 1, Item 2, where the Court finds no penalty should be assessed. 

For Citation Number 2, Item 1, the repeated violation of section 1910.212 (a)(1), Matsu is 

subject to a civil penalty of not more than $70,000.00 but not less than $5,000.00. 29 U.S.C. 

§666(a). The Secretary proposed a penalty of $35,000.00. The Court does not agree with the 

Secretary’s proposed penalty. The Commission may, where appropriate, assess a penalty higher 

than that proposed by the Secretary. R.G. Friday Masonry, Inc., 17 BNA OSHC 1070, 1075 

(Nos. 91–1873 & 91–2027, 1995) (consolidated). Although gravity normally is the most 

significant consideration, each factor can be accorded the weight that is reasonable in the 

circumstances. Merchant's Masonry, Inc., 17 BNA OSHC 1005, 1006 (No. 92-424, 1994). 

There is ample authority to establish that in situations of this nature, a substantial penalty is 

warranted under section 17(j) to accomplish the civil, remedial purpose of inducing the cited 

employer to satisfy its statutory obligation to provide a safe workplace. 

For example, in Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995), the 

Commission doubled the $14,000 penalty assessed by the judge in view of the employer's blatant 

disregard for the safety of its employees and the high gravity of the violations. See also 

Wheeling–Pittsburgh, 16 BNA at 1785 (large size, lack of good faith, and high gravity as factors 

in assessing a penalty of high magnitude); Hern Iron Works, 16 BNA OSHC at 1625 (lack of 

good faith as a significant factor in penalty assessment). Penalties must be assessed in an 

amount sufficient to preclude their being assumed by the employer as “simply another cost of 
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doing business.” Quality Stamping Prods. Co., 16 BNA OSHC 1927, 1929 (No. 91-414, 1994). 

See E.L. Davis Contrac. Co., 16 BNA OSHC 2046, 2053 (No. 92-35, 1994) (where Commission 

assessed a penalty of $60,000 to cause the company to appreciate “the vital importance of 

complying with OSHA regulations”). 

Given the seriousness of [redacted] ’s injuries, and the gravity of the repeated violation 

for failing to guard the cited machines, even after his amputation injuries, and based on the 

totality of the record, the Court finds the maximum civil penalty of $70,000.00 is appropriate for 

Citation Number 2, Item 1. Further, even assuming arguendo the Secretary only established a 

violation of the Sharp Radial Arm Drill Press cited in Item 1(a), given Matsu’s bad faith in 

taking no action in abatement despite [redacted] ’s amputation injuries the week before, and the 

repeated nature of the violation, the Court still finds the maximum civil penalty of $70,000.00 is 

appropriate for Citation Number 2, Item 1, which is necessary to cause Matsu to appreciate the 

vital importance of complying with OSHA regulations, E.L. Davis Contrac., 16 BNA OSHC at 

2053, and hopefully, to preclude their being assumed by Matsu as simply another cost of doing 

business. Quality Stamping Prods., 16 BNA OSHC at 1929. See also Wheeling-Pittsburgh, 16 

BNA OSHC at 1786 (Commission affirmed proposed grouped penalty where compliance officer 

testified the penalty is calculated for the first instance of a violation and only the penalty for the 

first instance is proposed). 

Finally, the Court notes Matsu’s “conduct was of such character as to be willful in the 

civil sense. That is, it was intentional, knowing or voluntary as distinguished from accidental, 

and it may be characterized as conduct marked by careless disregard.” Wetmore & Parman, Inc., 

1 BNA OSHC 1099, 1101 (No. 221, 1973) (citing United States v. Illinois Cent. R. Co., 303 U.S. 

239, 243 (1938)). As the Commission has also found, 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.” Westar Mech., Inc., 19 BNA OSHC 1568, 1574 (Nos. 97-0226 

& 97-0227, 2001) (consolidated). “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.” Id. 

Here, even though [redacted] was a temporary employee hired by Surge as a janitor, with 

no press operator experience and no training tailored to the needs of such an employee, Matsu 
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made its choice to place [redacted] on press duties, without the knowledge or approval of 

Surge,35 “a conscious, intentional, deliberate, voluntary decision, which, regardless of a venial 

motive, is properly described as willful.” United States v. Pugh, 515 F.3d 1179, 1193 (11th Cir. 

2008). Sadly, as a result of Matsu’s misconduct, which was clearly marked by its careless 

disregard of and plain indifference to [redacted]’s safety, [redacted] was trapped in Press 

Number 10, resulting in the loss of some fingers on his left hand, which was flattened “like a 

pancake,” and the amputation of his right arm to the middle of his forearm. Given [redacted]’s 

slight build and that his entire body fit in the space between the press and the vertical light 

curtain, Matsu knew or should have known the crowder bar safeguard was not capable of 

providing [redacted] the protection it was intended for— to keep him within the sensing area of 

the light curtain. [redacted]’s injuries could have been prevented had Matsu exercised 

reasonable diligence and care. ComTran Grp., 722 F.3d at 1316. 

Matsu had a heightened awareness of the illegality of the conduct or conditions— and the 

requisite state of mind— the conscious disregard or plain indifference to [redacted]’s safety— as 

demonstrated when Pinchon approached [redacted] and told him, “Don’t tell nobody I’ve been 

putting you on the presses.” (Tr. 143.) Had the Secretary pleaded a willful violation, there was 

ample evidence to support such a classification. However, such citation is not before the Court

because the Secretary, although possessed of the facts, did not choose to allege a willful 

violation. Accordingly, 

V. ORDER

IT IS HEREBY ORDERED THAT Citation Number 1, Item 2 is VACATED without the 

assessment of a penalty. 

IT IS FURTHER ORDERED THAT Citation Number 1, Items 1, 3, 4, 5a and 5b, and 6, 

Citation Number 2, Item 1, and Citation Number 3, Item 1 are AFFIRMED. 

 

35 As indicated supra, when Wolfsberger learned [redacted] was the employee who had been injured on Press 

Number 10, Wolfsberger response was “Why in the hell was he on a press? . . . he should not have been on the 

press. ... He was a janitor. He wasn’t trained.” (Tr. 255.)
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IT IS FURTHER ORDERED THAT Matsu is assessed and directed to pay to the Secretary 36

the following civil penalties: 

1. $7,000.00 for Citation Number 1, Item 1; 

2. $7,000.00 for Citation Number 1, Item 3; 

3. $7,000.00 for Citation Number 1, Item 4; 

4. $7,000.00 for Citation Number 1, Items 5a and 5b (grouped); 

5. $4,000.00 for Citation Number 1, Item 6; 

6. $70,000.00 for Citation Number 2, Item 1; and 

7. $1,000.00 for Citation Number 3, Item 1. 

SO ORDERED THIS 29th day of September, 2015. 

/s/ 

JOHN B. GATTO, Judge 

U.S. Occupational Safety and 

Health Review Commission 

 

36 See section 17(l) of the Act, which mandates that civil penalties owed under this Act “shall be paid to the 

Secretary for deposit into the Treasury of the United States[.]” 29 U.S.C. §666(l).