United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

OSHRC Docket No. 18-0278 

 

Appearances:

Luis A. Garcia, Esq. & Nisha Parekh, Esq., Department of Labor, Office of Solicitor, Los Angeles, 

California

 For Complainant 

Jason S. Mills, Esq. & Justin Hanassab, Morgan, Lewis & Bockius, LLP, Los Angeles, California 

 For Respondent 

Before: Judge Patrick B. Augustine – U. S. Administrative Law Judge 

DECISION AND ORDER

I. Procedural History

 While operating a grinder in a Department of Defense (“DOD”) welding shop in Barstow, 

California, one of Respondent’s employees was severely injured when the grinding stone he was 

using exploded. (Tr. 156). Although he was using proper protective equipment, the employee 

suffered a severe laceration to his head and a concussion that put him out of work for nearly six 

months.2 (Tr. 58–59, 510; Ex. C-17). Subsequent investigation revealed the employee used a 

1. As noted by Respondent’s counsel, URS was purchased by, and became a part of, AECOM. (Tr. 28–29). Thus, 

the parties refer to both entities interchangeably; however, both parties stipulated URS Federal, Inc. is the “real party 

in interest to these proceedings.” (Stip. No. 1). 

2. N.M. returned to work on restricted duty after three months but did not return to full-duty status until six months 

after the accident. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

URS FEDERAL SERVICES, INC., and its 

successors,1

 

 Respondent.
2

grinding stone with an RPM (revolutions per minute) rating that did not match the RPM rating of 

the grinder. (Stip. No. 10; Tr. 272; Ex. C-9). 

A complaint was filed with the Occupational Safety Health Administration (“OSHA”) San 

Diego Area Office that one of Respondent’s employees had been hospitalized with a work-related 

injury, which was not reported to OSHA. (Tr. 203). The complaint was forwarded to the Las 

Vegas Area Office, which dispatched Compliance Safety and Health Officer (“CSHO”) Kentis 

Casto to conduct an inspection. (Tr. 202). Over the course of two days, CSHO Casto conducted 

an inspection of Respondent’s worksite at the Marine Corps Logistics Base in Barstow.3 (Tr. 311–

12). CSHO Casto interviewed employees and members of management and reviewed the 

workplace and equipment involved in the accident. (Tr. 212–13). As a result of his inspection, 

CSHO Casto recommended, and Complainant issued, a Citation and Notification of Penalty

(“Citation”). The Citation alleges a single-item, serious violation of 29 C.F.R. § 1910.215(d)(1) 

with a recommended penalty of $12,934. Respondent submitted a timely Notice of Contest, 

bringing the matter before the Occupational Safety and Health Review Commission 

(“Commission”). 

A trial was held on November 27–28, 2018, in Bakersfield, California. The following 

individuals testified: (1) Shako Leang, former supervisor for Respondent; (2) David Downing, 

former welder for Respondent; (3) CSHO Kentis Casto; (4) Richard Stone, Respondent’s Safety 

Director; and (5) Aaron “Abe” Ellis, Respondent’s Barstow site manager. Both parties timely 

submitted post-trial briefs. Based on the evidence, arguments, and relevant case law, the Court 

3. CSHO Casto’s inspection took place on September 21st and 25th, 2017, which was roughly one month after the 

employee was injured. (Tr. 56, 311–12). Although the inspection spanned a period of five days, CSHO Casto was 

only on-site for two days because he arrived on a Thursday, which was the last day of Respondent’s work week, and 

returned the following Monday to conclude the inspection. (Tr. 311–12). 
3

finds Respondent failed to exercise reasonable diligence to prevent violations of 29 C.F.R. § 

1910.215(d)(1). 

II. Stipulations & Jurisdiction

The parties stipulated to jurisdictional and legal matters, which were submitted by the 

parties as Joint Exhibit 1.

4

 Based on the parties’ stipulations, the Court finds the Commission has 

jurisdiction over the matter pursuant to Section 10(c) of the Act, 29 U.S.C. § 659(c). (Stip. No. 2).

Further, the Court finds Respondent was an employer engaged in a business and industry affecting 

interstate commerce within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). 

(Id.). Slingluff v. OSHRC, 425 F.3d 861, 866–67 (10th Cir. 2005). 

III. Factual Background

A. Nature of the Work

Respondent is a large design, engineering, and construction firm. (Tr. 387). As is relevant 

to this case, Respondent contracted with the DOD to assemble, repair, and refurbish military 

vehicles at the Barstow Marine Corps Logistics Base. (Tr. 103). Respondent provided roughly 

376 employees to carry out various tasks in the assembly of these vehicles, which included 

painting, welding, steam, blasting, and others.5 (Tr. 118, 120). Those employees, in turn, were 

overseen by five supervisors, most of whom had responsibility for managing multiple task areas 

spread out over a large area within the base. (Tr. 119). Shako Leang, who supervised the weld 

shop where the injured employee worked, was responsible for seven different departments, 

including paint shop, steam, blast, weld, Humvees for both Marines and Air Force, and tear-down. 

(Tr. 121). These departments were spread out all over the base. (Tr. 103–104).

4. References to the parties’ Joint Stipulations will indicate the source and specific stipulation, e.g., “Stip. No. ___”. 

5. This is just an abbreviated list of tasks carried out by Respondent’s employees, many of which were not described 

in detail, but all were related to the assembly of military vehicles. 
4

In addition to the employees and supervisors supplied by Respondent, DOD had its own 

employees and supervisors working within each of the departments or “lines”, as Leang referred 

to them. (Tr. 103). The employees and supervisors of Respondent and DOD worked alongside 

each other, but Leang testified there was no overlap in supervision: DOD supervisors supervised 

DOD employees, and Respondent’s supervisors supervised Respondent’s employees. (Tr. 146–

47). Respondent’s employees were required to supply their own hand tools—wrenches, 

screwdrivers, etc.—however, they used power tools supplied by DOD employees in the weld shop. 

(Tr. 49–50). This included the angle grinders and grinding stones that were used in the welding 

shop. According to David Downing, who had worked at the base before Respondent took over the 

maintenance contract and continues to do so now that Respondent’s contract has expired, all 

welders working in the welding line would go to the tool counter to request grinders and 

stones/discs, which would be provided by a DOD employee. (Tr. 177). 

B. The Accident

On July 25, 2018, N.M. was grinding down welds on an MRAP vehicle when his grinding 

stone exploded and knocked him to the ground. (Tr. 64–65). When his supervisor, Shako Leang, 

arrived at the scene of the accident, N.M. was lying on the ground and was bleeding from his 

forehead. (Tr. 58–59). Although N.M. was wearing proper protective gear, including a full-face 

shield, the shattered pieces of stone crashed into the shield with enough force to lacerate his 

forehead and cause a severe concussion. (Tr. 62–63; Ex. C-2). He was taken to the hospital where 

he was observed and later released. (Tr. 80). N.M. was unable to return to full duty for six months. 

According to CSHO Casto’s investigation, N.M. had been using a 5-inch Dynabrade right-angle 
5

grinder that was rated for 12,000 RPM with a grinding stone6 that was only rated to 9,070 RPM. 

(Tr. 164, 216, 265; Ex. C-9). 

C. Previous Accidents

 Prior to the accident at issue in this case, two other employees were injured using grinders 

in the welding shop: David Downing, who testified at trial, and Abraham Abreu, who was not 

called as a witness. While there are similarities between the three cases, there are also notable 

differences in both the respective causes of the accidents, as well as what Respondent knew about 

the accidents themselves. 

The first incident, involving Abreu, was documented in Respondent’s incident and injury 

database and, thus, was indisputably known to Respondent. (Ex. C-5). According to the narrative 

in the log, on October 18, 2016, Abreu was grinding a sharp edge at an angle on a military vehicle 

with a cutting wheel (as opposed to the stone used by N.M.) when the rubber backing of the wheel 

broke off and struck him in the groin area. (Tr. 454–55; Ex. C-5). Richard Stone confirmed the 

basic facts recounted in the log. (Tr. 454). Stone also testified Abreu was using the appropriate 

grinding disc for the grinder. (Tr. 455). There was no evidence to suggest the disc exploded or 

that it was incompatible with the grinder, both of which were the case in the incident involving 

N.M.

The second incident, which involved Downing, appears somewhat similar to the incident 

involving N.M.; however, there are some important differences. According to Downing, in 

November of 2016, he was using an angle grinder and cup, similar to that used by N.M., when it 

“exploded” on him. (Tr. 156). Downing testified the shrapnel that released from the stone 

6. Downing also referred to these stones as “cups”, based on their shape. (Tr. 159). According to Downing, if the 

rating of the stone is lower than the grinder, the adhesive of the stone will be unable to hold it together; thus, causing 

the “explosion”. (Tr. 168; Ex. R-2).
6

dislocated his thumb and left a bruise on his chest that lasted for a few weeks. (Tr. 157). After this 

explosion occurred, a fellow welder, Steve Peterson, approached Downing, telling him he heard 

the explosion. (Tr. 181). Downing, who was not going to say anything about the incident,

recounted what happened to Peterson, who was also an employee safety representative. (Tr. 181). 

Peterson asked Downing if he “wanted to go anywhere with it”. (Tr. 181). Downing responded 

Peterson was the “safety guy” and he should do what he needed to do. (Tr. 181). After that, 

Downing went back to work. At trial, Downing could not recall whether the grinding stone was 

compatible with the grinder he was using, nor could he identify the reason why it had exploded; 

though he did speculate it was possible the stone could have been dropped in transit or in the DOD 

shop. (Tr. 157). 

As for Peterson, the “safety guy”, the testimony revealed he was a member of a safety 

committee, which was made up of rank-and-file employees from each of the respective lines and 

chaired by the site manager. (Tr. 457–58). Respondent designed the committee as a boots-on-theground approach to identifying hazards and safety issues, including once-a-month site 

walkthroughs. (Id.). The committee members would, in turn, report those issues during their 

meetings, which would be relayed to management through the site manager. (Tr. 458). Unlike 

people working directly for Stone, employees like Peterson were not employed by the safety 

department, nor were they supervisors. (Tr. 457, 502). With respect to the incident involving 

Downing, there is no evidence Peterson brought it to the attention of the committee, the site 

manager, or any other supervisor. 

D. Respondent’s Safety and Training Program

Respondent introduced extensive documentation of its training and safety program. Stone 

testified Respondent provides training on general safety principles, as well as specific safety 
7

measures, to its employees and managers. (Tr. 408–410). The general safety training course for 

rank-and-file employees is at orientation, as well as on an annual basis thereafter. (Tr. 409). 

Respondent provides managers, like Leang, with a training module called STAR, which Stone 

testified is designed to give managers the tools they need to lead safety successfully and to aid 

their employees to understand the importance of safe work practices. (Tr. 410). Stone noted he 

personally provided Leang with this training in approximately May of 2016. (Tr. 410). 

In addition to more general training, Respondent’s employees participate in tailgate 

training sessions that are provided every morning during what Leang referred to as morning 

muster. During morning muster, Leang would generally discuss safety issues, and he or a 

designated employee would cover an assigned safety-related topic. (Tr. 126–27; Ex. R-2). 

According to the documentation submitted by Respondent, N.M. participated in many of those

training sessions, which covered topics such as cutting and grinding and handheld pneumatic tools. 

(Ex. R-2). While Leang testified he participated in and, in some cases, proctored these tailgate 

training sessions, he admitted he had not received substantive training in some of the specific lines 

for which he was responsible, including welding and grinding. (Tr. 55–56). 

Respondent also implemented a process by which employees would examine their own 

work practices, as well as those of their fellow employees. (Tr. 444–45; Ex. C-2 at URS 

Barstow_000163, R-8). For example, prior to beginning work in the welding department, each 

employee was required to review a general Job Hazard Analysis (“JHA”)—provided by DOD—

specific to their job. (Tr. 430; Ex. R-2 at URSBarstow_000010). This JHA identified the general 

hazards and safety concerns for a specific activity within a line. (Tr. 430). In addition, each 

employee was required to complete a more specific task hazard analysis for the specific activity 

they were performing that day. (Ex. R-2). According to Leang, the purpose of this self-assessment 
8

was to ensure individual employees were focused on the specific hazards presented by the work 

activity for the day. (Tr. 128–130). Coupled with the self-assessments, employees were

occasionally directed by the safety supervisor to perform Behavior-Based Safety Checklists of 

their fellow employees to ensure safety principles were being followed. (Tr. 349–50, 441; Ex. R8). As for Leang, he occasionally walked through the worksite to ensure employees were wearing 

their required PPE and performing the work safely, though he also admitted he spent a significant 

amount of his time in the office performing administrative work. (Tr. 113–14). These walkarounds 

were supposed to be supplemented by an on-site safety supervisor, who was supposed to perform

walkarounds, trainings, and observations of both employees and managers. (Tr. 447–448). None 

of the checklists or hazard analyses mention anything about grinder compatibility. 

Regarding the specific hazard at issue in this case—grinder compatibility—Respondent 

has a work rule requiring its employees to ensure the grinding stone has an RPM rating no less 

than the RPM rating of the grinder. (Tr. 347; Ex. R-5 at 3.8.2). Although it is unclear as to whether 

training specific to this rule was provided in orientation,7 it appears it may have been covered in a 

seminar entitled “Tool Safety”, which Respondent provided to its employees, including N.M., on 

May 25, 2016.

8

 (Tr. 432–34; Ex. R-2 at URSBarstow_000013, R-3). Leang, Downing, and other 

employees interviewed by CSHO Casto testified they had not received this or other training on the 

issue of grinder/grinding stone compatibility until after the accident. (Tr. 55–57, 90, 158; Ex. C6). According to his testimony, Downing was not employed by Respondent when the Tool Safety 

training had been provided; however, he admitted he had 12 years of welding experience when he 

was hired by Respondent. (Tr. 172–174). He admitted he was “always” aware he had to ensure 

7. Downing testified his orientation training was perfunctory and was mostly geared towards signing forms. (Tr. 199). 

8. Although Complainant takes issue with the training materials referencing the equivalent construction standard, the 

Court finds the basic requirement of ensuring RPM compatibility is the same. 
9

compatibility between grinder and stone RPM ratings, but it was something he did not think about 

until after he experienced a problem (Tr. 182–83, 399, 402–403). It is unclear where Downing 

acquired this knowledge, but there is no evidence to suggest Respondent provided this information

or otherwise inquired about Downing’s prior training or knowledge of welding-related safety. 

IV. Discussion

A. Law Applicable to Alleged Violation of Section 5(a)(2)

To establish a violation of an OSHA standard pursuant to Section 5(a)(2) of the Act, 

Complainant must establish: (1) the standard applies; (2) the terms of the standard were violated; 

(3) employees were exposed to the hazard covered by the standard; and (4) the employer had actual 

or constructive knowledge of the violation (i.e., the employer knew or, with the exercise of 

reasonable diligence, could have known of the violative condition). Atlantic Battery Co., 16 BNA 

OSHC 2131, 2138 (No. 90-1747, 1994). 

Complainant has the burden of establishing each element by a preponderance of the 

evidence. See Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance 

of the evidence” has been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) (emphasis added). 

1. Citation 1, Item 1 

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

29 CFR 1910.215(d)(2): Spindle speed(s) on grinding machine(s) were not checked 

before mounting to assure it did not exceed the maximum operating speed marked 

on the wheel: 
10

Welding Shop: Employees were exposed to struck by hazards when operating a 

DynaBrade 5” Right Angle Grinder, Model 52633, 12,000 RPM with a grinding 

wheel incompatible for use at speed of angle grinder.

See Citation and Notification of Penalty at 6. 

The cited standard provides: 

Immediately before mounting, all wheels shall be closely inspected and sounded by 

the user (ring test) to make sure they have not been damaged in transit, storage, or 

otherwise. The spindle speed of the machine shall be checked before mounting of 

the wheel to be certain that it does not exceed the maximum operating speed marked 

on the wheel. . . . 

 

29 C.F.R. § 1910.215(d)(1). 

a. Respondent Stipulated to Standard Application, Violation, and Exposure 

 

The parties stipulated that 29 C.F.R. § 1910.215(d)(1) is the applicable standard. (Ex. J-1 

at p. 3). Further, during the trial, the parties also agreed the grinding stone did not match the 

spindle speed of the grinder, violating § 1910.215(d)(1), and that an employee was exposed to the 

hazard created by the violation. (Tr. 33–36). Thus, the only remaining issue is whether Respondent 

had knowledge of the violation. 

b. Respondent Should Have Known of the Violation 

Complainant contends Respondent had both actual and constructive knowledge of the 

violation at issue in this case. As to actual knowledge, Complainant contends Steve Peterson, the 

weld shop’s representative to the safety committee, should be viewed as a de facto supervisor such 

that his knowledge of Downing’s accident could be imputed to Respondent. Complainant also 

contends Respondent should be charged with constructive knowledge of the violation, because 

Respondent failed to conduct spot checks of individual welder’s tools to ensure grinders and 

grinding stones were RPM-compatible. 

In response, Respondent contends Peterson served on the committee in a merely 

representative capacity, meaning he had the ability to voice concerns about safety issues within 
11

the welding department, but otherwise was not granted authority to direct or otherwise exert 

authority over his co-employees. As to constructive knowledge, Respondent contends it exercised 

reasonable diligence in the implementation of its safety program in the welding department. 

Further, Respondent contends the imposition of a spot-check requirement exceeds what is 

reasonable given what Respondent knew (or did not know) about grinder compatibility issues. 

The Court disagrees. While the Court finds Respondent did not have actual knowledge of the 

violation, Respondent’s failure to perform thorough examinations of its employees’ equipment 

illustrates a lack of reasonable diligence and, thus, constitutes constructive knowledge of the 

violation. 

i. Actual Knowledge 

In order to establish actual knowledge of this violation, Complainant must prove 

Respondent knew N.M. was using an incompatible grind stone with the Dynabrade grinder. See 

LJC Dismantling Corp., 24 BNA OSHC 1478 (No. 08-1318, 2014) (finding evidence insufficient 

to establish foreman knew injured employee was exposed to hazardous condition when that 

foreman was on a different floor when injury occurred); see also Gary Concrete Prods, Inc., 15 

BNA OSHC 1051, 1052–53 (No. 86-1087, 1991) (finding employer lacked actual knowledge 

where supervisor left work area prior to employee exposure to violative condition). Actual 

knowledge can be proved by showing one of Respondent’s supervisors knew of the condition, in 

which case such knowledge is imputable to Respondent. See Dover Elevator, 16 BNA OSHC 1281

(No. 91-862, 1993) (citations omitted). There is no evidence Respondent actually knew N.M. was 

using an incompatible stone. Instead, Complainant relies on two incidents that occurred more than 

eight months before the injury to N.M., which forms the basis of the citation at issue. As will be 

shown, much of Complainant’s argument on this topic is about whether Respondent should have 
12

known N.M. was using an incompatible grinding stone, which is the standard for inquiry into 

whether Respondent had constructive, not actual, knowledge. 

As to actual knowledge, the Court finds Complainant confuses the issue of knowledge by 

conflating Peterson’s knowledge of Downing’s accident with knowledge of the violation alleged 

in this case. First, without consideration of the specific facts of Downing’s exploding grinding 

wheel, using Peterson’s knowledge of that incident to establish actual knowledge for the purposes 

of this citation is improper. As recounted in Complainant’s brief, the incident involving Downing 

occurred approximately 8 months before N.M.’s accident. See Compl’t Br. at 13. What Peterson 

specifically knew about Downing’s purported violation, which occurred outside the statute of 

limitations, has nothing to do with whether Respondent can be charged with actual knowledge of 

N.M.’s violative conduct. Complainant appears to suggest Respondent’s employees consistently 

failed to check “[t]he spindle speed of the machine . . . before mounting”; nevertheless, that 

allegation has to be connected to a discrete violation. See, e.g., N & N Contractors, Inc., 18 BNA 

OSHC 2121 (No. 96-0606, 2000) (finding Secretary failed to prove actual knowledge when there 

was “no evidence that Wilkinson or any other N&N supervisor observed Radzicki’s conduct”). 

Although Peterson’s knowledge, and potentially Respondent’s, regarding the Downing incident is 

relevant to the issue of constructive knowledge, it cannot be used to establish actual knowledge of 

the violation alleged in this case.

 Second, Complainant wants to connect the basic facts of Downing’s incident to the incident 

involving N.M. The connection, however, is not as clear cut as Complainant suggests. Principal 

amongst Complainant’s problems is the fact that Downing himself admitted he did not know 

whether the grinding cup/stone that exploded was rated at the same RPM as the grinder he was 

using at the time. (Tr. 157). Instead, Downing speculated the grinding stone could have been 
13

dropped, stating, “[N]ormally they explode because of dropping.” (Tr. 157). Downing testified 

his conversation with Peterson was brief, and there is no indication the two discussed RPMs or 

other potential reasons for the explosion. (Tr. 181). Thus, even if Peterson’s knowledge of 

Downing’s accident was imputable to Respondent, there is no evidence Respondent was aware 

Downing failed to check RPM compatibility, let alone that it was aware of the accident in the first 

place.

 Third, notwithstanding the foregoing, Complainant failed to establish Peterson was a 

supervisor. To establish an individual’s supervisory status, the Commission has held “job titles 

are not controlling and that the power to hire and fire is not the sine qua non of supervisory status 

. . . .” Rawson Contractors, Inc., 20 BNA OSHC 1078 (No. 99-0018, 2003). Instead, the key 

question is whether the individual in question “was vested with some degree of authority over the 

other crew members assigned to carry out the specific job involved.” Iowa Southern Utilities Co., 

5 BNA OSHC 1138 (No. 9295, 1977). This includes, amongst other things: the power to order 

that necessary steps be taken to do the job properly, ensuring that work will be done in a safe 

manner, ensuring compliance with OSHA regulations, and identifying and implementing 

corrective measures to eliminate hazards. Rawson, 20 BNA OSHC 1078, Iowa Southern, 5 BNA 

OSHC 1138; see also Kerns Bros. Tree Svcs., 18 BNA OSHC 2064 (No. 96-1719, 2000) (crew 

leader responsible for seeing work done safely and properly based on written work order). 

According to the testimony, Peterson was a rank-and-file welder, who was selected to serve 

as the welding department’s representative on the safety committee. According to Aaron Ellis, 

former site manager for Barstow and chair of the safety committee, the committee was designed 

to get employees from each department involved so they could have a “direct line with 

management so they can express any concerns they have.” (Tr. 503). The once-a-month meetings 
14

would include discussions led by the site manager and safety supervisor, who would identify 

safety-related issues they had seen, as well as input from the rank-and-file. (Tr. 503–504). This 

was echoed by Stone, who testified the employees on the committee brought issues to management 

who, in turn, would be expected to address and/or solve issues brought up by the employee 

representatives. (Tr. 457–58). Stone further testified all employees have a duty to report injuries 

and incidents and that membership on the committee did not impart a heightened duty on Peterson 

or any other member; rather, it served as an additional channel through which such reports could 

be made. (Tr. 496). Clarifying the issue even further, Ellis testified Peterson “was not in any shape, 

form, or manner a—in any type of supervisory capacity.” (Tr. 502). 

The Court agrees with Respondent. In his brief, Complainant overstates Peterson’s role in 

the arena of safety and health. Indeed, though Peterson may have participated in walkthroughs 

(though there is no specific evidence of this) and participated in monthly meetings in an advisory 

capacity, it does not appear his duties were substantially different than other employees within the 

welding department. The evidence shows each employee was, at one time or another, responsible 

for auditing his fellow employees’ work practices and work station through the Behavior-Based 

Safety Checklist. (Ex. R-8). Peterson conducted some tailgate training sessions on safety and tool 

usage, but he was also just an attendee at some of these training sessions. (Ex. R-2). According 

to Stone and Leang, Respondent liked to use employees to conduct certain tailgate training 

sessions, especially those familiar with the work, because Respondent found employees receive 

the information better if it comes from a fellow employee. (Tr. 430). If the training were more 

technical or detailed, Stone testified such training would be proctored by a safety supervisor or 

someone else. (Tr. 430). There is no indication Respondent “relied on Representative Peterson to 
15

ensure weld shop safety”, as Complainant puts it, any more than any other employee, nor is there 

any indication Peterson wielded any authority over his coworkers. See Compl’t Br. at 15. 

 Complainant cites to Boh Brothers Construction in support of its claim Peterson was a 

supervisor. Complainant’s reliance on the Commission’s decision is not only misplaced because 

the term “safety representative” carried a different connotation than it does in the present case, but 

Complainant quotes the ALJ’s rationale for finding knowledge when the Commission explicitly 

disclaimed reliance on the ALJ’s reasoning. See Compl’t Br. at 12 (quoting Boh Bros. Constr. Co., 

LLC, 24 BNA OSHC 1067, 2013 WL 949386 at *13 (No. 09-1072, 2013)). Further, the safety 

representative referred to in the decision was specifically designated to “perform compliance 

monitoring, coordinate with foremen and supervisors, identify deficiencies, and recommend safety 

improvements”, as well as held daily safety meetings with supervisors, ensured foremen held daily 

job safety analysis meetings, and administered safety presentations and orientation for new 

employees. Id. at *13. Such responsibilities far exceed those granted to Peterson and clearly 

indicate authority not only over rank-and-file employees but over members of the on-site 

management team, too. 

Based on the foregoing, the Court finds (1) Complainant failed to establish Respondent 

had actual knowledge of the violation that forms the basis of the Citation at issue in this case, and 

(2) Complainant failed to establish Steven Peterson was a supervisor through whom knowledge, 

actual or constructive, could be imputed to Respondent. 

ii. Constructive Knowledge 

Alternatively, Complainant contends Respondent should have known its employees were 

not ensuring their grindstones and grinders were compatible had it exercised reasonable diligence. 

This assertion is grounded, at least in part, on CSHO Casto’s initial understanding that there were 
16

multiple incidents involving exploding grinding stones due to RPM incompatibility. (Tr. 250; Ex. 

C-7). Although CSHO Casto’s assessment of the prevalence of grinding stone explosions was 

overblown, the Court nonetheless finds Respondent failed to take reasonable precautions to ensure 

its employees were complying with 29 C.F.R. § 1910.215(d)(2) prior to operating the DOD-issued 

grinders. 

According to the Commission, the determination of whether an employer has exercised 

reasonable diligence is based on multiple factors, including “an employer’s obligation to inspect 

the work area, anticipate hazards, take measures to prevent violations from occurring, adequately 

supervise employees, and implement adequate work rules and training programs.” Jacobs Field 

Svcs. N.A., 25 BNA OSHC 1216 (No. 10-2659, 2015) (citations omitted); see also N.Y. State Elec. 

& Gas Corp., 88 F.3d 98, 106 (2d Cir. 1996) (“[C]onstructive knowledge may be predicated on an 

employer’s failure to establish an adequate program to promote compliance with safety 

standards.”). Whether an employer has exercised reasonable diligence “will vary with the facts of 

each case.” Martin v. OSHRC, 947 F.2d 1483, 1485 (11th Cir. 1991). The Court will examine the 

foregoing factors in light of the facts of this case. 

First, the Court finds Respondent had a work rule governing the conduct at issue here.9

Under its rules for Hand and Power Tools, Respondent had a separate section for Handheld 

Grinders. (Ex. R-5 at URSBarstow_000058). Rule 3.8.2 states, “Ensure the RPM (as posted on 

the wheel) is equal to or greater than that posted on the grinder, the disk/wheel is the correct size 

for the grinder, and the type of wheel is compatible with the material being ground or cut.” (Id. at 

000059). This is sufficiently specific to cover the requirements of 29 C.F.R. § 1910.215(d)(1). 

The document containing the rule indicates it was current as of June 26, 2017, which was roughly 

9. Although Complainant implied this and other documents were not authentic, he submitted no evidence to suggest 

Respondent fabricated such documents for the purposes of this case. 
17

one month prior to the accident involving N.M. and was available on the company intranet. (Ex. 

R-5). Thus, at the very least, the Court finds Respondent had a rule in place at the time of the 

accident.

Having a rule and ensuring your employees are aware of that rule, however, are two 

different things. It is here, as well as under the other factors, where Respondent’s case for 

reasonable diligence starts to break down. The problem for Respondent is one of consistency. As 

noted above, Respondent provided training on general safety issues and welding-specific topics 

through orientation, training modules, and tailgate meetings. Some of the general safety training 

modules were covered during orientation and revisited annually thereafter. (Tr. 409; Ex. R-2). The 

training modules covering the specifics of the welding department, however, were not consistently 

provided to ensure all welding shop employees at Barstow were trained on issues like grinder 

compatibility. This explains why Downing and the employees interviewed by CSHO Casto all 

stated they had not received such training until after the incident involving N.M. 

Respondent submitted evidence of three training modules that addressed the use of 

grinders, one of which indicates the need to inspect the cutting wheel. (Ex. R-2 at 

URSBarstow_000006). The relevant training was entitled “Tool Safety” for which Respondent 

submitted a sign-in sheet and an associated PowerPoint presentation. (Ex. R-2 at 

URSBarstow_000013). While there is nothing specific to the sign-in sheet or PowerPoint that 

would indicate the content contained in the PowerPoint was provided during the Tool Safety 

seminar, Stone credibly testified that “Tool Safety” specifically refers to the content contained in 

the PowerPoint. (Tr. 432–33, 480–483). The PowerPoint, though it cites to the construction 

standard for grinding machines, nonetheless references both the RPM of the grinder and the 

requirement the wheel “shall be compatible with the size motor of the grinder.” (Ex. R-3 at 
18

URSBarstow _000020). While these appear, at least minimally, to cover the standard at issue here, 

the Court notes each of these training seminars took place one or two years before the accident in 

this case, leaving an employee like Downing, who started in late 2016, without such training. 

The weight of the evidence suggests some of Respondent’s employees received training on 

grinder compatibility and some did not. Welding shop supervisor Skako Leang received 

supervisor training, but was more or less in the dark on the substantive requirements of the seven 

different lines he was responsible for, including welding. (Tr. 55). N.M., along with other welding 

shop employees, received the training described above, but Downing and employees interviewed 

by CSHO Casto stated they did not receive training on this issue until after N.M.’s accident. While 

Downing testified he was aware of the requirement for grinder compatibility, that information is 

only helpful to Respondent if, when Downing was hired, it inquired into the nature of his 

experience and training to determine what, if any, additional training was necessary. See, e.g., LJC 

Dismantling Corp., 24 BNA OSHC at 1481–82 (more specific instructions not necessary where 

employer was aware of employee’s prior training). According to Downing, Respondent did not 

so inquire. (Tr. 187–88). Further, the responses to CSHO Casto’s inquiries regarding grinding 

compatibility suggests whatever training Respondent provided was either ineffective or, as 

discussed below, not followed up on by management. 

Perhaps the biggest problem for Respondent is the failure of management, whether due to 

understaffing or insufficient guidance, to inspect the work area and provide consistent, meaningful 

supervision. An employer “has a general obligation to inspect its workplace for hazards. . . , 

[which] ‘requires a careful and critical examination, and is not satisfied by a mere opportunity to 

view equipment.’” Hamilton Fixture, 16 BNA OSHC 1073 (No. 88-1720, 1993) (quoting Austin 

Comm. v. OSHRC, 610 F.2d 200, 202 (5th Cir. 1979)). The evidence presented at trial showed 
19

management was largely hands off when it came to inspections and supervision; instead, 

Respondent placed a significant amount of responsibility for conducting inspections on the 

employees themselves through the implementation of its Behavior-Based Safety Checklists and 

self-examination through the task hazard analyses.10 

According to the testimony, Leang was the supervisor for 135 employees and 7 different 

shops, including the welding department, for which he was the sole supervisor. (Tr. 118–19). He 

testified the management team at Barstow was shorthanded, so he spent most of his time in the 

office performing administrative tasks and walked the floor “[w]hen I would get the chance.” (Tr. 

113). Even when he walked the floor, he testified he mostly checked for PPE. (Tr. 114–15). While 

this was based, in part, on his concern for safety, the Court finds it was also because Respondent 

did not provide him with sufficient training to perform a more careful and critical examination of 

his employees’ equipment. (Tr. 57). Leang testified he had a team lead within the welding 

department, Sylvia De La Paz; however, other than communicating with DOD supervisors, the 

scope of Ms. De La Paz’s responsibilities is unclear, and there is no evidence she performed 

inspections or otherwise provided supervision of any sort. (Tr. 144). 

Respondent also had an on-site safety representative who, according to Stone, was 

responsible for ensuring training was taking place, that supervisors were conducting walkthroughs 

of the worksite, performing incident investigation, and assigning employees to perform the 

Behavior-Based Safety Checklist. (Tr. 149, 448). According to Leang, this position changed hands

a few times during his tenure at Barstow, though at the time of the injury it was filled by a woman 

named Earlene Farley. (Tr. 124-125, 447). Leang testified Ms. Farley focused most of her efforts 

on the Task Hazard Analyses but did not spend a lot of, if any, time on training or inspections. (Tr. 

10. Neither Leang nor Downing seemed familiar with the Behavior-Based Safety Checklists. (Tr. 135, 184). 
20

125). This characterization of Ms. Farley’s activities as safety supervisor was not challenged by 

Respondent. 

This lack of supervision and inspections is also reflected in the lack of disciplinary action 

taken by Respondent. Although Respondent had a disciplinary policy that looks good on paper, it 

is not clear Respondent implemented that policy with any degree of regularity. Out of a company 

of nearly 92,000 employees in multiple locations around the world, Respondent submitted

evidence of three documented disciplinary actions, two of which were issued in 2015 and none of 

which were in the welding department at Barstow (or any other welding department for that 

matter). (Tr. 208; Ex. R-7). The lack of evidence indicating Respondent enforced its work rules 

is indicative of its overall lack of managerial involvement in the inspection and supervisory 

process. 

Respondent contends its use of the Behavior-Based Safety Checklists, task hazard analyses, 

and Leang’s intermittent walkthroughs to inspect PPE were sufficient to satisfy its obligation to 

conduct inspections and provide supervision in light of the process by which its employees 

procured grinders and stones, the relative experience of its employees, and what Respondent knew 

about the problems, if any, associated with its employees using incompatible grinders and stones. 

Further, Respondent contends spot checks of grinding equipment to ensure compatibility is out of 

proportion to what reasonable diligence required under the circumstances of this case. The Court 

disagrees. 

 First, while the THAs and Behavior-Based Safety Checklists are certainly laudable efforts 

at engaging employees to ensure safe work habits, Respondent cannot delegate its duty to supervise 

and inspect its employees to the employees themselves. This is especially the case when their 

appointed supervisor had no experience, and thus no substantive knowledge, in the department he 
21

was supposed to oversee; was responsible for six other departments in which he had no substantive 

knowledge; and had a team lead that had no discernible responsibility or authority over the 

employees in the welding department. Second, just as Respondent cannot delegate the 

responsibility to perform inspections to its employees, it cannot rely solely on DOD to ensure 

proper equipment is being distributed to its employees. As noted by Downing, employees could 

request whatever stone they wanted, depending on how quickly they wanted to get the job done. 

DOD did not mandate which stone should be used with which grinder, nor does it appear as if 

DOD exercised any control over Respondent’s employees, except for allowing them to use DODissued tools. This is no different than a subcontractor on a multi-employer worksite, who, though 

not ultimately responsible for the conditions of the worksite itself, is still responsible for ensuring 

its employees are not exposed to a hazard. See Associated Underwater Services, 24 BNA OSHC 

1248, 1251 (“Commission precedent require[s] an employer to detect and assess the hazards to 

which its employees may be exposed, even those it did not create.”). Finally, though Respondent 

may (or may not have) been aware of prior accidents resulting from incompatible grinders and 

stones, it nonetheless had a responsibility to “anticipate hazards” and “take measures to prevent 

violations from occurring”. Jacobs Field Svcs. N.A., 25 BNA OSHC 1216. Given its lack of 

control over the tools its employees were using, the Court finds it is perfectly reasonable for 

Complainant to require Respondent’s supervisors to perform spot checks of the equipment to 

ensure compliance with the applicable standards and such equipment was in safe operating 

condition. 

The foregoing is not to say Respondent should be sending its supervisors to perform checks 

of everyone’s equipment every time they check out a grinder from DOD, or even daily. See New 

York State Elec. & Gas Corp., 88 F.3d 98, 109 (2d Cir. 1996) (holding constant supervisor 
22

surveillance to be unworkable burden). Instead, such checks would be part of a surprise audit 

program or an explicit part of a more formal inspection program carried out by a supervisor or 

similarly authorized team lead. These inspections should be a small part of an otherwise 

comprehensive supervisory regime within any of Respondent’s worksites. Given what appears to 

be a shortage of supervisors and team leads with little to no authority, it is understandable Leang

was only able to perform cursory examinations, which were typically limited to whether the 

employee was wearing PPE and whether it appeared they were working in a safe manner. See

Hamilton Fixture, 16 BNA OSHC 1073, supra. Leang testified he and the other supervisors were 

short-handed and that the safety program was poor at the Barstow location, which is reflected in 

the way it was implemented. (Tr. 113, 125). 

 Based on the foregoing the Court finds Respondent failed to exercise reasonable diligence 

to uncover the violation of the cited standard and thus had constructive knowledge. While this 

failure can be partially attributed to staffing, the Court finds Respondent, whether through Leang, 

Earlene Farley, or the site manager at the time, could have known of the violation through the 

exercise of reasonable diligence. Since each of those people are recognized members of 

management, the Court also finds their knowledge is properly attributable to Respondent. See 

Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (holding an employee who 

has been delegated authority over other employees is considered to be a supervisor for the purpose 

of imputing knowledge to his employer). Accordingly, the Court finds Complainant established a 

prima facie violation of 29 C.F.R. § 1910.215(d)(1). Citation 1, Item 1 is AFFIRMED. 

c. The Violation Was Serious

The Court finds the violation was serious within the meaning of section 17(k) of the Act. 

Under the Act, “a serious violation shall be deemed to exist in a place of employment if there is a 

substantial probability that death or serious physical harm could result from a condition which 
23

exists ... unless the employer did not, and could not with the exercise of reasonable diligence, 

know of the presence of the violation.” 29 U.S.C. § 666(k). If the possible injury addressed by a 

regulation is death or serious physical harm, a violation of the regulation is serious. Mosser 

Construction, 23 BNA 1044, 1047 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA 2072, 2077 

(No. 88-523, 1993). 

 Complainant need not show that there was a substantial probability that an accident would 

occur; he need only show that if an accident occurred, serious physical harm could result. See Sec’y 

of Labor v. Phelps Dodge Corp. v. Occupational Safety & Health Review Comm'n, 725 F.2d 1237, 

1240 (9th Cir. 1984) (emphasis added). However, the Act imposes liability “only if the employer 

knew, or ‘with the exercise of reasonable diligence, [should have known] of the presence of the 

violation.’” Florida Lemark Corp. v. Sec'y, U.S. Dep't of Labor, 634 F. App'x 681, 687 (11th Cir. 

2015) (quotation omitted). 

 The injuries suffered by N.M. clearly illustrate the seriousness of this violation. Not only 

did N.M. suffer a severe laceration to his head, but he received a concussion which resulted in a 

trip to the hospital. Due to the severity of his concussion, N.M. was not able to return to work for 

nearly three months and was on restricted duty for an additional three months after that. The Court 

finds the violation was serious.

d. Affirmative Defense - Unpreventable Employee Misconduct

Under Commission precedent, to establish unpreventable employee misconduct, an 

employer must prove by preponderance of the evidence that it has: (a) established work rules 

designed to prevent the violation, (b) adequately communicated those work rules to its employees, 

(c) taken steps to discover violations, and (d) effectively enforced the rules when violations were 

discovered. See American Sterilizer Co. (“AMSCO”), 18 BNA OSHC 1082, 1087 (No. 91-2494, 

1997). Respondent carries the burden of proof for an affirmative defense. Hamilton Fixture, 16 
24

BNA OSHC 1073, 1077 (No. 88-1720, 1993) aff’d, 28 F.3d 1213 (6th Cir. 1994). 

1. Work Rule Has Been Established 

Under its rules for Hand and Power Tools, Respondent had a separate section for Handheld 

Grinders. (Ex. R-5 at URSBarstow_000058). Rule 3.8.2 states, “Ensure the RPM (as posted on 

the wheel) is equal to or greater than that posted on the grinder, the disk/wheel is the correct size 

for the grinder, and the type of wheel is compatible with the material being ground or cut.” (Id. at 

000059). This is sufficiently specific to cover the requirements of 29 C.F.R. § 1910.215(d)(1). 

The document containing the rule indicates it was current as of June 26, 2017, which was roughly 

one month prior to the accident involving N.M. and was available on the company intranet. (Ex. 

R-5). Thus, the Court finds Respondent had a rule in place at the time of the inspection. 

2. Communication of the Work Rule 

 Having a rule and ensuring your employees are aware of that rule, however, are two 

different things. It is here, as well as under the other factors, where Respondent’s affirmative 

defense starts to break down. Respondent provided training on general safety issues and weldingspecific topics through orientation, training modules, and tailgate meetings. Some of the general 

safety training modules were covered during orientation and revisited annually thereafter. (Tr. 409; 

Ex. R-2). The training modules covering the specifics of the welding department, however, were 

not consistently provided to ensure all welding shop employees at Barstow were trained on issues 

like grinder compatibility. This explains why Downing and the employees interviewed by CSHO 

Casto all stated they had not received such training until after the incident involving N.M. 

 Respondent submitted evidence of three training modules that addressed the use of 

grinders, one of which indicates the need to inspect the cutting wheel. (Ex. R-2 at 

URSBarstow_000006). The relevant training was entitled “Tool Safety.” (Ex. R-2 at 
25

URSBarstow_000013). While these appear, at least minimally, to cover the standard at issue here, 

the Court notes each of these training seminars took place one or two years before the accident in 

this case, leaving an employee like Downing, who started in late 2016, without such training. In 

conclusion, Respondent failed to have an effective and comprehensive communication 

methodology in place to ensure effective communication to all employees. Respondent failed to 

carry its burden on this element. 

3. Steps Taken to Discover Violations 

 The Court finds Respondent failed to establish it took effective steps to discover violations 

of the cited standard. Respondent’s inspection program was largely carried out by its employees 

through the THAs and the Behavior-Based Safety Checklists, neither of which address the 

requirements of § 1910.215(d)(2). Although Leang testified he performed walkthroughs of the 

department “[w]hen [he] would get the chance”, his inspections of the welding department were 

limited to whether the employees were wearing PPE. This is attributable to Leang having only a 

surface-level understanding of what occurs in the welding shop, a lack of authority given to his 

team lead, and a shortage of supervision in the Barstow location overall. Respondent failed to 

establish this element of the affirmative defense.

 4. Disciplinary Program is Lacking 

Respondent failed to introduce persuasive evidence of a disciplinary regime that was more 

than a paper program. Although Respondent had a disciplinary policy that looks good on paper, 

it is not clear Respondent implemented that policy with any degree of regularity. Out of a company 

of nearly 92,000 employees in multiple locations around the world, Respondent submitted 

evidence of three documented disciplinary actions, two of which were issued in 2015 and none of 

which were in the welding department at Barstow (or any other welding department for that 
26

matter). (Tr. 208; Ex. R-7). The lack of evidence indicating Respondent enforced its work rules 

is indicative of its overall lack of managerial involvement in the inspection and supervisory 

process.

Given these gaps in the implementation of Respondent’s safety program, the Court finds 

N.M.’s, or any other employee in the welding department, behavior was neither surprising or 

idiosyncratic. Even if the Court accepts that the training Respondent provided in 2015/16 was 

sufficient to convey the requirements of the cited standard—it does not—it was not provided 

consistently, nor did Respondent’s supervisors follow up to ensure it was being implemented, 

followed, or corrected when not complied with. Accordingly, the Court finds Respondent failed 

to prove the affirmative defense of unpreventable employee misconduct. 

V. Penalty

When a citation is issued, it may include a penalty amount. See 29 U.S.C. § 659(a). OSHA 

has published a Field Operations Manual (“FOM”) to, among other things, guide its employees in 

determining what penalty, if any, to propose for violations. FOM, Directive No. CPL-02-00-150 

at 1-1, 6-1, effective April 22, 2011, available at 4 Employment Safety and Health Guide, (CCH), 

¶7965, at 12,133, 12,139 (2015). The penalty amounts proposed in a citation become advisory 

when an employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441–42 (8th Cir. 

1973); Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). The Secretary’s 

proposed penalties are not accorded the same deference the Commission gives its reasonable 

interpretations of an ambiguous standard. See Hern Iron Works, 16 BNA OSHC 1619, 1621 (No. 

88-1962, 1994) (rejecting Secretary’s contention that his penalty proposals are entitled to 

“substantial weight”); Nacirema Operating Co., 1 BNA OSHC 1001, 1003 (No. 4, 1972) 

(declining to agree with the result or methodology the Secretary used to calculate the penalty). It 
27

is the Secretary's burden to introduce evidence bearing on the factors and explain how he arrived 

at the penalty he proposed. Valdak Corp., 17 BNA OSHC at 1138; Orion Constr. Co., Inc., 18 

BNA OSHC 1867, 1868 (No. 98-2014, 1999) (giving less weight to the history factor as the 

Secretary provided little specific information)

“Regarding penalty, the Act requires that “due consideration” be given to the employer’s 

size, the gravity of the violation, the good faith of the employer, and any prior history of 

violations.” Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing 29 U.S.C. 

§ 666(j); Jim Boyd, 26 BNA OSHC at 1117; Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-

0322, 2001), aff'd, 34 F. App'x 152 (5th Cir. 2002) (unpublished)). These factors are not 

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

1993) (citation omitted). When applying the penalty assessment factors, the Commission need not 

accord each one equal weight. See, e.g., Astra Pharm. Prods., Inc., 10 BNA OSHC 2070, 2071 

(No. 78-6247, 1982); Orion, 18 BNA OSHC at 1867 (giving less weight to the size and history 

factors). Rather, the Commission assigns the weight that is reasonable under the circumstances. 

Eric K. Ho, 20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) (Consol.), aff'd sub nom., Chao v. 

OSHRC, 401 F.3d 355 (5th Cir. 2005). 

a. Gravity 

“The gravity of the violation is the ‘principal factor in a penalty determination. Assessing 

gravity involves considering: (1) the number of employees exposed to the hazard; (2) the duration 

of exposure; (3) whether any precautions have been taken against injury; (4) the degree of 

probability that an accident would occur; and (5) the likelihood of injury. See, e.g., Capform, Inc., 

19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. Appx. 152 (5th Cir. 2002) 

(unpublished). See also Ernest F. Donley’s Son, Inc., 1 BNA OSHC 1186 (No. 43, 1973) (viewing 
28

gravity as the probability of an accident's occurrence and the extent of exposure). “A lack of 

injuries is not a measure for determining gravity or any other penalty factor.” Altor Inc., 23 BNA 

OSHC 1458, 1468 (No. 99-0958, 2011), aff’d 498 F. Appx. 145 (3d Cir. 2012) (unpublished). 

The Court finds the violation was of high gravity. Respondent’s failure to inspect, at least 

periodically, equipment supplied by another employer exposed all the employees in the welding 

shop to the same hazard that put N.M. out of work and the employees were exposed for a 

substantial period of time each work day. 

b. Size 

The gravity factor focuses on treating violations of similar quality and severity alike. In 

contrast, the other three factors—size, history, and good faith—require consideration of 

circumstances pertaining specifically to the cited employer. The Commission frequently relies on 

the number of employees to evaluate the merits of altering a penalty for size. Respondent is a very 

large company, employing nearly 92,000 employees worldwide. The Court assigns no discount 

for the size of Respondent. 

c. History 

The next statutory consideration, history, examines an employer’s full prior citation 

history, not just prior citations of the same standard. Orion, 18 BNA OSHC at 1868; Manganas 

Painting Co., 21 BNA OSHC 2043, 2055 (No. 95-0103, 2007) (consol.) (history includes prior 

uncontested citations). Even if the prior violations were of a different degree or nature they still 

are properly part of the employer’s history for penalty purposes. Quality Stamping Prods., Co., 

16 BNA OSHC 1927, 1929 (No. 91-414, 1994). Neither Complainant nor Respondent submitted 

evidence of Respondent’s violation history, thus the Court has no basis to award a reduction based 

upon history. 
29

d. Good Faith 

As to the final factor, good faith, this entails assessing an employer’s health and safety 

program, its commitment to job safety and health, its cooperation with OSHA, and its efforts to 

minimize any harm from the violation. Monroe Drywall Constr., Inc., 24 BNA OSHC 1209, 1211 

(No. 12-0379, 2013); Nacirema, 1 BNA OSHC at 1002. Good faith can be a mitigating factor. 

See, e.g., Aviation Constructors, Inc., 18 BNA OSHC 1917, 1922 (No. 96-0593, 1999); Pentecost 

Contracting Corp., 17 BNA OSHC at 1955. 

With respect to good faith, although Respondent appears to have a good safety program on 

paper, the Court finds, for the reasons previously discussed, its implementation at the Barstow 

facility was lacking. The Court finds the penalty proposed by Complainant is appropriate in light 

of the aforementioned factors. Accordingly, the Court finds Complainant’s penalty assessment is 

substantially justified and assesses a penalty of $12,934. 

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as serious, and a penalty of $12,934 is ASSESSED. 

SO ORDERED

 /s/____________________________ 

 Patrick B. Augustine 

 Judge, OSHRC 

Date: September 23, 2019 

Denver, Colorado