United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 11-2780

PEACOCK ENGINEERING, INC.,

Respondent.

ON BRIEFS: 

Amy S. Tryon, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M. 

Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, 

Solicitor of Labor; U.S. Department of Labor, Washington, DC 

 For the Complainant 

James A. D’Ambrosio, Esq.; Chase M. Stern, Esq.; Stark & D’Ambrosio, LLP, San Diego, CA 

 For the Respondent 

DECISION

Before: MACDOUGALL, Acting Chairman; and ATTWOOD, Commissioner. 

BY THE COMMISSION: 

Peacock Engineering installs burial crypts at Miramar National Cemetery in San Diego, 

California.1

 On May 6, 2011, Peacock was using an excavator to hoist and transport a crypt,

suspended by wire rope slings, from a staging area to its plot, when an employee’s left thumb 

was amputated by a sling as he guided the crypt, by hand, into place. Following an inspection, 

the Occupational Safety and Health Administration issued Peacock a citation alleging a violation 

of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1), based on 

the exposure of Peacock employees to “amputation, struck by and crushed by hazards, while 

 

1

 Although California has a state plan approved by the Occupational Safety and Health 

Administration, it does not cover “national memorials.” 29 C.F.R. § 1952.7 (explaining 

California plan coverage). 
2

guiding a suspended load by hand.”2 Administrative Law Judge Patrick B. Augustine vacated 

this citation item, finding that no employees were exposed to the alleged hazards.3

For the following reasons, we vacate Item 1 but not for lack of employee exposure. 

Rather, we conclude that the Secretary has failed to establish a feasible means of abatement. 

BACKGROUND

As of the time of the accident, Peacock had installed approximately 11,000 crypts at 

Miramar. To lift and place the crypts, each of which weighs over 8,000 pounds, Peacock uses an 

excavator equipped with a custom-designed lifting accessory that, in turn, has two wire rope 

slings that fit in pre-cut grooves running along the sides of each crypt. At the installation site, 

Peacock uses a string to align the crypts, which are set in rows next to one another, parallel to 

and one quarter-inch off the string, in evenly spaced eight-foot increments. A Peacock “ground 

employee” rakes the ground to ensure it is level, and the excavator operator positions each crypt 

over its designated plot, with the ground employee staying clear of the suspended crypt, or 

“load,” until it is 1-2 feet above the ground. Once the crypt reaches this height, the ground 

employee—standing approximately 2 feet from the crypt—guides it into place by hand, in some 

cases “spinning” it to achieve the proper orientation. A laser is then used to check the crypt’s 

elevation and alignment. On May 6, 2011, a ground employee was working with his foreman 

(who was operating the excavator), when a sling slipped from its pre-cut groove and amputated 

the ground employee’s left thumb.

DISCUSSION 

To prove a violation of the general duty clause, the Secretary must establish that: (1) a 

condition or activity in the workplace presented a hazard; (2) the employer or its industry 

recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical 

harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). In addition, the Commission 

 

2

 The general duty clause provides that “[e]ach employer . . . shall furnish to each of his 

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

are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. 

§ 654(a)(1). 

3

 The citation issued to Peacock included five other items, two of which were settled before the 

judge (Items 2 and 4) and two of which were affirmed by the judge but not petitioned for review 

(Items 3 and 6). Review was sought and granted for the other remaining item (Item 5); that item 

has been severed from this case and is disposed of in a decision also issued today. 
3

and courts have also consistently required, in order to prove the existence of a hazard within the 

meaning of the general duty clause, that employees were exposed to the asserted hazard. See, 

e.g., Kastalon, Inc., 12 BNA OSHC 1928, 1932 (No. 79-5543, 1986) (consolidated) (“[T]o prove 

the existence of a hazard within the meaning of the general duty clause, the Secretary . . . must 

show . . . that employees are exposed to a significant risk of harm.”); Bunge Corp. v. Sec’y of 

Labor, 638 F.2d 831, 835 (5th Cir. 1981) (“In a section 5(a)(1) case the Secretary must show, 

among other things, . . . worker exposure to the hazard.”). Finally, in addition to establishing the 

four elements of a general duty clause violation, the Secretary must prove that the employer 

knew or, with the exercise of reasonable diligence, could have known of the hazardous 

condition. Burford’s Trees, Inc., 22 BNA OSHC 1948, 1950 (No. 07-1899, 2010), aff’d, 413 F. 

App’x 222 (11th Cir. 2011) (unpublished). 

 Here, the judge initially found the first two elements satisfied, stating that “working 

around suspended loads is a hazard that is recognized both by the industry engaged in hoisting 

materials and by [Peacock] specifically.” He then stated, however, that the company’s work 

methods neither “establish[ed] a hazard” nor “imposed a unique hazard,” and concluded that 

based on these work methods and Peacock’s training—as well as his finding that the company 

had adopted every abatement method proposed by the Secretary—none of Peacock’s employees 

were exposed to the cited hazards. Additionally, the judge found that the Secretary failed to 

establish employer knowledge. On review, the Secretary makes three arguments: exposure to the 

hazard was established when a Peacock employee suffered an amputation to his thumb while 

guiding a suspended crypt by hand; the judge’s knowledge ruling improperly focused on the 

accident, rather than the pre-existing hazardous conditions; and Peacock failed to implement the 

Secretary’s proposed abatement method of keeping employees clear of the suspended load. 

 We find that the judge’s decision conflates the distinct elements of a general duty clause 

violation. As such, we consider, in turn, the alleged hazards, hazard recognition, and the 

likelihood of serious harm. We conclude the Secretary has established these three elements, 

along with employee exposure to the hazard. Next, we address employer knowledge, which we 

conclude the Secretary has also established. Finally, we consider the fourth element of a general 
4

duty clause violation—feasibility of abatement—which we conclude the Secretary has failed to 

establish.4

Hazard 

In a general duty clause citation, “[the] hazard must be defined in a way that apprises the 

employer of its obligations, and identifies conditions and practices over which the employer can 

reasonably be expected to exercise control.” Arcadian Corp., 20 BNA OSHC at 2007; Pelron 

Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986). In the citation, the Secretary describes 

the alleged hazards as “amputation, struck by and crushed by hazards, while guiding a suspended 

load by hand.” 

Peacock contends that although it may be generally hazardous to work around suspended 

loads, the Secretary failed to establish that the company’s actual work methods presented the 

specific hazard of amputation, being struck, or being crushed by a suspended load. In addition, 

in claiming that its work methods did not present a hazard, Peacock emphasizes that those 

methods resulted in thousands of accident-free crypt installations. The efficacy of Peacock’s 

work methods in avoiding injury, however, is a separate inquiry from whether an alleged hazard 

was present. In fact, that bears on feasibility of abatement, which we address below. See 

Morrison-Knudsen Co., 16 BNA OSHC 1105, 1121 (No. 88-0572, 1993) (“[T]he hazard is not 

the absence of the abatement method.”). Nor is the claim that Peacock had no previous accidents 

dispositive of this specific issue—the absence of prior injury may be the result of Peacock 

having had adequate abatement measures or simply of luck. See Waldon Health Care Ctr., 16 

BNA OSHC 1052, 1059 (No. 89-2804, 1993) (consolidated) (“[T]he goal of the Act is to prevent 

the first accident . . . .”).

As to Peacock’s work methods, the record shows that during the final phase of the 

installation process, a Peacock employee precisely guides by hand each crypt, which is

suspended with slings, into a confined area. The potential for amputation, being struck, or being 

crushed is based on the combination of the crypt’s heavy weight, problems associated with the 

slings, and the leveling, turning, and maneuvering of the crypt while it and the employee are in 

close proximity to other crypts. Specifically, the ground employee must guide and sometimes 

 

4

 The Secretary amended Item 1 to allege, in the alternative, a violation of the safety training and 

education standard, 29 C.F.R. § 1926.21(b)(2). The judge, in vacating this item, concluded that 

this provision was not violated. On review, the Secretary has abandoned this alternative 

allegation.
5

“spin” a crypt into place by pushing on it with their hands and all their weight because the crypt 

is “so heavy,” posing the hazard of the employee’s body, limbs, or hands being struck or crushed 

by a side of the crypt—as the record shows, there was no safe place for the ground employees to 

place their hands on the crypts while guiding them. Additionally, the ground employee 

sometimes has to reach under a suspended crypt to level it, posing the hazard of the employee’s 

hands being struck or crushed by the bottom of the crypt. Moreover, a suspended crypt may 

collide with other crypts when being spun into place, posing the hazard of the employee being 

crushed between crypts. Finally, the slings, which are under tension from the heavy weight, had 

slipped out of the crypt’s grooves in the past, posing the hazard of the employee being struck or 

crushed by a dislodged crypt, or having an extremity amputated by a sling. Indeed, in the instant 

case the employee’s thumb was amputated by a sling in precisely this way. For all these reasons, 

we conclude that the Secretary has adequately defined these hazards and established their 

presence at Peacock’s worksite. 

Hazard Recognition

“Hazard recognition may be shown by proof that ‘a hazard . . . is recognized as such by 

the employer’ or by ‘general understanding in the [employer’s] industry.’ ” Otis Elevator Co., 

21 BNA OSHC 2204, 2207 (No. 03-1344, 2007) (quoting Kokosing Constr. Co., 17 BNA OSHC 

1869, 1873 (No. 92-2596, 1996)). The record here shows that the asserted hazards were 

recognized, both by Peacock and the industry engaged in hoisting materials. Peacock’s 

recognition is established by undisputed testimony from the OSHA compliance officer that 

company management was told of problems with slings staying in crypt grooves and that 

workers were told to continue their work while the issue was addressed; indeed, testimony from 

Peacock’s president confirms that he was aware of a “few times” when there were problems with 

misaligned crypt grooves. See Pepperidge Farm, 17 BNA OSHC 1993, 2030-31 (No. 89-0265, 

1997) (finding recognition based in part on employee complaints); Tampa Shipyards, Inc., 15 

BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (imputing recognition of supervisor 

to employer). In addition, Peacock conceded before the judge that it trained employees to stay 

away from the excavator during installation, and the company acknowledged that its president 

identified “kill zones”—near “equipment or the crypt, the cables, anything like that”—where 

injury potential was increased. Furthermore, Peacock’s work method itself required employees 

to stay away from the suspended crypts for as long as possible, approaching only when the load 
6

was 1-2 feet off the ground. See Pepperidge Farm, 17 BNA OSHC at 2006-07 (protective 

measures alone are not enough to prove recognition but may be considered along with other 

evidence, such as actual knowledge, memoranda, and warnings). 

As for industry recognition, the slings consensus standard issued by the American 

Society of Mechanical Engineers—which Peacock’s expert acknowledged applies to the 

company’s installation work—specifies that, among other things, “[p]ortions of the human body 

should be kept from between the sling and the load,” and “[p]ersonnel should stand clear of the 

suspended load.” ASME Standard B30.9-1996, 2.9(h)-(i); see Duriron Co., 11 BNA OSHC 

1405, 1407 n.2 (No. 77-2847, 1983) (finding “permissible” the Secretary’s use, in a section 

5(a)(1) case, of a “recommended [NIOSH] standard as general evidence of the hazard and 

industry recognition of the hazard”), aff’d, 750 F.2d 28 (6th Cir. 1984).

Harm 

The Secretary must show that Peacock’s employees were exposed to a hazard likely to 

cause death or serious physical harm. Arcadian, 20 BNA OSHC at 2010 (citing MorrisonKnudsen, 16 BNA OSHC at 1122 (“hazard is likely to cause serious physical harm if the likely 

consequences of employee exposure would be serious physical harm”)). Although the judge did 

not explicitly address this issue, we find that the Secretary has established this element. “[T]he 

Commission has made clear [that] the criteri[on] . . . [in this regard] is not the likelihood of an 

accident or injury, but whether, if an accident occurs, the results are likely to cause death or 

serious harm.” Waldon, 16 BNA OSHC at 1060. In this case, the likely harm included 

amputation, which is a “serious injury.” See Brady-Hamilton Stevedore Co., 3 BNA OSHC 

1925, 1927 (No. 2265, 1976) (discussing characterization). 

Exposure 

“Implicit in the above elements is the necessity for establishing employee exposure to the 

cited hazardous condition.” Grossman Steel & Aluminum Corp., 6 BNA OSHC 2020, 2022 (No. 

76-2834, 1978). The Secretary establishes exposure “either by showing actual exposure or that 

access to the hazard was reasonably predictable.” Phoenix Roofing Inc., 17 BNA OSHC 1076, 

1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished). Here, there is no 

question that an employee’s thumb was amputated by a sling. In addition, the record shows that 

Peacock’s ground employees were instructed to stand near, and place their hands on, the 

suspended crypts during the final phase of installation. As a result, their limbs and bodies were 
7

in areas where they were in danger of being struck, crushed, or suffering amputation.5 See

Acchione & Canuso, Inc., 7 BNA OSHC 2128, 2130 n.7 (No. 16180, 1980) (“[The crane] 

operator’s testimony describing the ‘tingling’ sensation he felt in his arm at the time of the 

accident . . . is evidence of actual exposure to the shock hazard.”); S&G Packaging Co., 19 BNA 

OSHC 1503, 1506 (No. 98-1107, 2001) (“[Employee’s] injuries establish actual exposure to the 

unguarded drive rollers.”). Thus, we find that the record—as reflected in the judge’s own 

findings—establishes that employees were exposed to the hazard.

Employer Knowledge 

The Secretary must show the employer knew or, with the exercise of reasonable diligence 

could have known of the hazardous condition. PSP Monotech Indus., 22 BNA OSHC 1303, 

1305 (No. 06-1201, 2008). The judge found that the Secretary failed to show knowledge 

because, “[i]f the hazard . . . is . . . the potential for amputation injuries as a result of the sling not 

being securely attached to the load, . . . such problems were not attributable to the work 

method[s],” but rather to “a latent defect in the crypt that could not have been foreseen.” 

We find that the judge’s narrow focus on amputation from a crypt defect was error. The 

citation is clearly broader than that, as it also alleges struck-by and crushed-by hazards resulting 

from guiding a suspended load by hand. The citation thus addresses hazards stemming from 

other causes, such as the difficulty of controlling a suspended crypt due to its weight and close 

proximity to other crypts, or other types of hoisting failures. Notably, the cautions in the ASME 

standard are not limited to the use of slings with grooved crypts. See Ormet Corp., 14 BNA 

OSHC 2134, 2138 (No. 85-531, 1991) (“The specific facts of this accident are not determinative 

of whether there was a violation.”) (emphasis in original). In other words, “[a] violation [may] 

 

5

 The judge found that because Peacock’s employees stand clear of the suspended loads until the 

loads are 1-2 feet off of the ground, the employee’s injury “was a product of his failure to follow 

work rules, not from the hazard associated with standing near [such] loads.” Following this 

work rule, however, would not prevent exposure here because, as noted, the company’s work 

methods still require the ground employee to stand near the crypt and maneuver it by hand. 

Additionally, to the extent the judge was relying on the relatively short amount of time 

employees spend near the suspended loads, this does not negate exposure; indeed, Peacock 

employees set approximately 100 crypts per day. See George J. Igel & Co., 6 BNA OSHC 1642, 

1645 (No. 76-1087, 1978) (“Respondent’s contention that the employee was in the trench for 

only 10 to 15 seconds at a time does not constitute a defense to the alleged violation.”); Morgan 

& Culpepper, Inc. v. OSHRC, 676 F.2d 1065, 1069 (5th Cir. 1982) (“[W]e reject the notion that 

the existence of an unsafe condition for only a short duration is defensible for that reason.”). 
8

still . . . have been committed” due to the manner in which Peacock’s employees placed crypts, 

“even if there had been no accident.” Id.

The proper inquiry here is whether Peacock was aware of the cited conditions its 

employees faced when guiding a suspended crypt. At least two pieces of evidence establish this 

awareness. First, the company president testified that he himself designed the work methods the 

employees use. Second, the excavator was operated on the day of the accident by a supervisory 

employee, Peacock’s foreman, who taught Peacock’s installation methods to the injured ground 

employee, and set the slings on the crypt that was involved in the amputation at issue. See 

Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999) (“[K]nowledge can be 

imputed to the cited employer through its supervisory employee.”); Am. Wrecking Corp., 19 

BNA OSHC 1703, 1710 (No. 96-1330, 2001) (consolidated) (finding actual knowledge, and 

imputing it to employer, where supervisor “continued to work in the area [of the violative 

condition] through the time of the accident”), aff’d in relevant part, 351 F.3d 1254 (D.C. Cir. 

2003); compare Prestressed Sys., Inc., 9 BNA OSHC 1864, 1869 (No. 16147, 1981) (stating that 

where violative condition “may not have been visible, an inference of [actual] employer 

knowledge cannot be drawn from the mere presence of the . . . condition at the worksite”). 

Accordingly, the Secretary has established Peacock’s knowledge of the cited conditions.

Feasibility of Abatement 

 The final general duty clause element the Secretary must establish is that the proposed 

abatement measures “are capable of being put into effect and that they would be effective in 

materially reducing the incidence of the hazard.” Beverly Enters., Inc., 19 BNA OSHC 1161, 

1190 (No. 91-3344, 2000) (consolidated). Here, the Secretary proposes several methods of 

abatement in the citation: 

Among other methods, feasible and acceptable methods to correct this hazard is 

to: 

(1) Follow the American Society of Mechanical Engineers (ASME B30.9-1996, 

Slings) Safety Standard for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, 

and Slings, Section 9-2.9: Operating Practices, which states: 

(h) Portions of the human body should be kept from between the sling and the 

load and from between the sling and the crane hook or hoist hook 

(i) Personnel should stand clear of the suspended load 

(r) The sling’s legs should contain or support the load so that the load remains 

under control. 
9

(2) Follow 29 CFR [§] 1910.184(c)(6) Slings shall be securely attached to their 

loads. 

(3) Reject burial vaults with manufacturer flaws that can affect the stability of the 

suspended load. 

Before the judge, the Secretary focused on only the first of these measures, asserting that, 

because of Peacock’s hands-on method of crypt placement, employees failed to stand clear of 

suspended loads. As such, we consider only this proposed abatement measure. See Ala. Power 

Co., 13 BNA OSHC 1240, 1246 (No. 84-357, 1987) (excluding abatement measure because it 

“would be unfair for us to find [a] violation for failing to institute [a] . . . method that was not 

raised [or] litigated below”). In considering this measure, the judge, noting the discretionary 

nature of the ASME standard referenced in the citation, found that Peacock had implemented this 

proposed abatement measure by requiring its employees to stand clear of the suspended crypts 

most of the time—that is, until the loads were 1-2 feet off the ground. 

We agree with the judge’s finding that the Secretary failed to show standing clear of the 

load was a feasible method of abatement. The citation, by referencing the non-mandatory ASME 

standard, alleges that the company failed to have its employees stand clear of the suspended 

crypts to the extent feasible and, further, that it was indeed feasible for Peacock’s employees to 

stay clear of the suspended crypts throughout the installation process. According to the 

Secretary, this could be accomplished by using either tag lines (attached to the crypt at its 

opposing corners) or a guide pole (about 15 feet long) to maneuver and place the crypts; both, 

the Secretary claims, would keep employees at a safe distance and materially reduce the proven 

hazards.6 As the judge found, the “primary problem” with using tag lines or a pole was one of 

“precision.” 

Each crypt had to be placed precisely, otherwise the whole row could end up crooked. 

The injured employee testified that the crypts were too heavy to move with a pole at all (let alone 

with the necessary precision), and Peacock’s president testified that it would be very difficult to 

 

6

The judge described the use of tag lines and poles as “new” methods of abatement that were not 

identified in the citation. The evidence regarding tag lines and poles, however, was proffered 

simply to demonstrate that standing clear of the suspended load was feasible. Also, Peacock has 

not claimed any lack of notice with regard to tag lines and poles, nor did the company object to 

the introduction of evidence regarding these devices. See Sw. Bell Tel. Co., 6 BNA OSHC 2130, 

2132 (No. 14761, 1978) (stating that “the failure of the parties to object to introduction of 

evidence concerning the unpleaded issue” can “give rise to a finding of implied consent” to 

litigate it). 
10

make minute adjustments when standing 15 feet away. The Secretary takes issue with the notion 

that the feasibility of standing clear of the suspended crypts depends on whether the work needed 

to be done from 15 feet away, asserting that the ASME standard does not require such a large 

distance. This assertion, however, is undermined by his own expert, a member of OSHA’s Salt 

Lake City health response team, who testified that it “is optimal to have the individuals 15 feet 

away,” and that he “could see anywhere from 10 to 15 feet [being] a reasonable distance.” Also, 

the Secretary does not specify what shorter distance would provide the requisite protection. Cf. 

J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2207 (No. 87-2059, 1993) (“[W]here a standard 

does not specify the means for compliance with its terms, due process requires that the Secretary 

present evidence showing a feasible method by which the employer can satisfy the standard.”). 

Moreover, the evidence upon which the Secretary relies does not establish the feasibility 

of the stand-clear method. While the opinion of the Secretary’s expert was that the crypts could 

be installed using tag lines and poles in conjunction with a crane, he was not asked if any of his 

experience involved maneuvering suspended loads with a similar degree of precision as is 

involved with Peacock’s installation of burial crypts. In addition, the ASME standard does not 

specifically address the high degree of precision required in Peacock’s installation work. Thus, 

we conclude that the Secretary has failed to show that standing clear of the load—the only 

measure upon which he now relies—was a feasible method of abatement and therefore, has 

failed to establish a violation of the general duty clause.

Accordingly, we vacate Item 1. 

SO ORDERED. 

/s/ 

 Heather L. MacDougall 

 Acting Chairman 

 /s/ 

Dated: April 27, 2017 Cynthia L. Attwood 

Commissioner
Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

 OSHRC DOCKET NO. 11-2780 

Appearances: 

Grace Kim, Esq. and Natalie Nardecchia, Esq., Office of the Solicitor, U.S. Department of Labor, Los 

Angeles, California 

 For Complainant 

 James A. D’Ambrosio, Esq., Stark & D’Ambrosio, LLP, San Diego, California 

 For Respondent 

Before: Administrative Law Judge Patrick B. Augustine 

DECISION AND ORDER 

I. Procedural History 

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) 

conducted an inspection of a Peacock Engineering, Inc. (“Respondent”) worksite in Miramar,

California on May 20–24, 2011. As a result of the inspection, OSHA issued a Citation and 

Notification of Penalty (“Citation”) to Respondent alleging seven serious violations of the Act.1

 

Respondent timely contested the Citation, and a trial was held on November 13–15, 2012 in San 

Diego, CA. Both parties filed post-trial briefs. 

 

1. Citation 1, Item 2 includes sub-items 2a and 2b, which explains the discrepancy between the parties’ Stipulation 

No. 23 and the Court’s count of the number of alleged violations. On the first day of trial, the parties were able to 

settle Citation 1, Item 2a, Item 2b, and Item 4. That agreement was read into the record and is discussed below in 

Section IV. 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

PEACOCK ENGINEERING, INC., 

 Respondent.
2 

II. Jurisdiction 

 The parties have stipulated that the Act applies and the Commission has jurisdiction over 

this proceeding pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c). (Jt. Ex. 1). Further, 

Respondent also stipulated that, at all times relevant to this matter, it was an employer engaged 

in a business affecting commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5). 

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

III. Stipulations 

The parties submitted Joint Stipulations to the Court, which are set forth below: 

1. Jurisdiction over this action is conferred on the Court pursuant to Section 10(c) of the 

Occupational Safety and Health Act of 1980 (29 U.S.C. § 651 et seq.) (“Act”). 

2. Respondent and its employees are engaged in receiving, handling and otherwise working 

on and with goods and materials that are moving or have moved in interstate commerce 

within the meaning of the Act such that, by virtue of its activities, Respondent has at all 

times material been an “employer” engaged in a business affecting commerce within the 

meaning of the Act, § 3(5), 29 U.S.C. § 652(5). 

3. On or about May 6, 2011, Respondent was acting as a subcontractor at Miramar National 

Cemetery (“Site”) and was providing crypt installation services at the Site. 

4. The work method used by Respondent to install crypts at the Site included use of one 

SkyTrak 10054 rough terrain forklift, with a custom lifting accessory (“Forklift”), to 

move crypts from one location to another at the Site. 

5. The Forklift’s custom lifting accessory was designed by Respondent’s President, Larry 

Peacock. 

6. The work method used by Respondent to install crypts at the Site included use of one 

LBX Link-Belt 225 excavator, with a custom lifting accessory (“Excavator”), to move 

crypts to their final resting place at the Site. 

7. The Excavator’s custom lifting accessory was designed by Respondent’s President, Larry 

Peacock. 

8. The work method used by Respondent to install crypts at the Site involved one employee 

operating the Excavator to move the suspended burial crypt to its final resting place, with 

a second employee standing approximately two (2) feet from the suspended burial crypt 

to help maneuver the crypt into place with his hands. 

9. The work method used by Respondent to move the suspended burial crypt did not involve 

the use of tag lines. 
3 

10. On May 6, 2011, an accident occurred at the Site where an employee of Respondent, 

[redacted], suffered a thumb amputation injury (“Accident”). 

11. The Accident occurred when a wire rope sling that was being used to help move a 

suspended burial crypt slipped out of a groove of the burial crypt and amputated 

[redacted]’s left thumb. 

12. At the time of the accident, [redacted]’s hands were positioned above the wire rope sling 

suspending the burial crypt. 

13. The photograph attached [to the parties’ stipulations] as Exhibit A, and taken later on the 

same date of the Accident, is a true and accurate depiction of the burial crypt, wire rope 

sling, and Excavator involved in the Accident. 

14. Larry Peacock is, and all relevant times has been, Respondent’s President. 

15. Jonathan Olivares is, and at all relevant times has been, Respondent’s General Office 

Manager. 

16. [redacted] was an employee of Respondent and worked as a crypt installer at the Site. 

17. Tyler Felton was an employee of Respondent and worked as a foreman at the Site. 

18. At the time of the Accident, Mr. Felton was operating the Excavator.

19. At the time of the Accident, [redacted] was on the ground next to the suspended burial 

crypt, helping to maneuver the load into place with his hands. 

20. The Forklift was not marked to indicate its safe working load. 

21. Respondent did not obtain written approval from the Forklift manufacturer for the 

modifications to the Forklift and its custom lifting accessory. 

22. The Excavator was not marked to indicate its safe working load. 

23. Following an inspection of the Site by a Compliance Safety and Health Officer (CSHO) 

for the Occupational Safety and Health Administration, the Secretary issued one citation 

with six (6) serious items to Respondent on or about October 7, 2011 (“Citation”). 

24. The Citation attached hereto as Exhibit B is a true and correct copy of the Citation at 

issue in the present matter. 

25. The Citation gives Respondent adequate notice of the alleged violations. 

26. The Citation was timely issued to Respondent. 
4 

IV. Settled Citations 

On the first day of trial, the parties agreed to settle Citation 1, Items 2a and 2b, and Item 

4. (Tr. 14–15). Citation 1, Items 2a and 2b were grouped together for penalty purposes and 

alleged serious violations of 29 C.F.R. § 1926.54(d) and 29 C.F.R. § 1926.54(e), respectively. 

The parties agreed to re-classify these violations as other-than-serious and reduce the penalty 

from $1,800 to $900. Citation 1, Item 4 alleged a serious violation of 29 C.F.R. § 1926.301(d) 

with a proposed penalty of $1,800. The parties agreed to re-classify this violation as other-thanserious and reduce the penalty to $900. No other changes were made as a part of this agreement. 

(Tr. 15). 

V. Findings of Fact2

Respondent is a subcontractor that installs crypts at national cemeteries around the United 

States, including, as is relevant to the present matter, Miramar National Cemetery (“worksite”). 

(Jt. Ex. 1). Respondent was hired by a general contractor, KevCon, which was in charge of the 

worksite as a whole. (Tr. 449). KevCon, in turn, was hired by the Veteran’s Administration 

(“VA”), which manages the cemetery. (Tr. 449). Respondent employs between 10 and 12 

employees. (Tr. 440). At the time of the inspection, Respondent was working on two crypt 

installation projects—the project at Miramar National Cemetery and another project at Riverside 

National Cemetery. (Tr. 440). Since 1995, Respondent’s President, Larry Peacock, stated that 

the Respondent had installed approximately 400,000 crypts. (Tr. 438–40). At the Miramar 

worksite, Respondent had installed approximately 11,000 crypts. (Tr. 440). 

 In order to install 11,000 crypts, 1.5 to 2 acres of land was excavated in order to place the 

crypts below ground level. (Tr. 48, Ex. C-1, C-4). Once the area was cleared, Respondent used 

 

2. This section does not constitute the entirety of the Court’s Findings of Fact. The facts contained in this section 

apply generally to each of the citations discussed in Section VII, Conclusions of Law. To the extent that additional 

facts are needed to address a particular citation, such facts will be discussed in Section VII. 
5 

a series of uncapped, reinforced steel bars (“rebar”), which were pounded into the ground and 

connected by a chalk line, to ensure that the crypts were properly aligned in even rows. (Tr. 56). 

The crypts were delivered by a flatbed truck to the worksite by the crypt manufacturer, Universal 

Precast. (Tr. 48–49, 449). Upon delivery, an engineer from the VA would inspect each crypt for 

defects. (Tr. 449). If the crypt passed inspection, the VA engineer would mark it with a red dot; 

however, if it did not pass inspection, the crypt would be marked with a green dot. (Tr. 465–68). 

 Once the crypts had been delivered and inspected, Respondent moved the crypts that 

passed inspection from the delivery area to a staging area, where the crypts were placed much 

closer to their final resting place. (Tr. 49). Respondent used a rough terrain forklift, SkyTrak 

Model 10054, to move the crypts to the staging area. (Tr. 49, Ex. J-1, C-12). Respondent then 

used an excavator, LBX Link-Belt 225, to move the crypts from the staging area to the spot 

where they would finally be installed. (Tr. 56, Jt. Ex. 1). Both the excavator and the forklift 

were fitted with lifting devices, which were custom-designed by Mr. Peacock to lift, transport, 

and install the crypts. (Jt. Ex. 1). 

The crypts were manufactured with pre-cut grooves, which ran the length of both sides of 

the crypt and then angled upwards at the corners. (Tr. 463, Ex. C-3, C-5). When the crypts 

were lifted, the custom lifting devices were attached to the pre-cut grooves with two 7/16-inch 

wire slings—oriented in a basket hitch—which were attached to a spreader bar. (Ex. C-7, C-29). 

The primary difference between the forklift and the excavator was the manner in which the 

custom device was attached to the boom. The custom lifting device was attached to the boom of 

the excavator through a series of two shackles and a hook, which connected to a swiveling eye 

bolt that was attached to the spreader bar. (Ex. C-7). The custom device attached to the forklift 

had a similar series of connecting devices starting at the spreader bar; however, the manner in 

which it was attached to the boom was much different. (Ex. C-13). Whereas the lifting device 
6 

was attached to the excavator boom by attaching a shackle to a pre-existing anchorage point, 

Respondent connected to the forklift boom a U-shaped attachment that was composed of three 

metal plates that were welded together and held steady with two cotter pins. (Tr. 93, Ex. C-14). 

Respondent welded an eye bolt onto the outward facing metal plate, and the custom lifting 

device was connected to the forklift boom through the welded eye bolt. (Ex. C-14, C-15). 

 Each burial crypt weighs 8,472 pounds. (Tr. 58, Ex. C-28). Both the excavator and the 

forklift have plates affixed to them that indicate their load capacities at the time of manufacture. 

(Tr. 373, Ex. C-10, C-19). In the case of the excavator, a chart is provided to illustrate the 

maximum capacity based on certain variables, such as bucket size, arm length, load radius, and 

load height. (Ex. C-10). In the case of the forklift, the plate indicates a maximum capacity of 

10,000 pounds. (Ex. C-19). Neither of the custom accessories has been labeled to indicate their 

load capacities; rather, the only information regarding the capacity of the custom accessories is 

the Certex sling chart, which indicates the load capacity of the 7/16-inch slings used by 

Respondent when placed in specific configurations. (Ex. C-29). The parties dispute which 

configuration was being used—Respondent contends that the slings were oriented in a vertical 

basket, which has a load capacity of 3.9 tons per sling, whereas Complainant argues that the 

slings were oriented at an angle, which can reduce the load capacity to as little as 1.9 tons per 

sling. (Ex. C-29). As regards the sling configuration, the Court credits the testimony of 

Complainant’s expert and professional engineer, James Nelson, who testified that the orientation 

of the sling legs in Exhibit C-24 were at an angle relative to the horizontal point of engagement 

on the crypt. (Tr. 348–349). Mr. Nelson’s understanding is confirmed by the diagrams 

contained in the Certex sling chart, which show the orientation of the sling legs relative to the 

load. (Ex. C-29). This understanding also comports with the definition provided for “angle of 
7 

loading” provided in 29 C.F.R. § 1910.184(d).3 Mr. Nelson also credibly testified as to the 

impact the angled orientation of the slings would have on their tensile strength, which explains 

the reduction in load capacity at different angles.4 (Tr. 351–52). The Court, however, is not as

convinced by Mr. Nelson’s assessment of the sling angle. Mr. Nelson attempted to guess at the 

angle of the slings based upon Exhibit C-24, which shows the slings attached to the crypt but not 

under full load. (Tr. 350).5

 Mr. Nelson testified that the slings, not under full load, appeared to 

be at 30 degrees; however, he also testified that under a full load, it could be more than that. (Tr. 

349, Ex. C-24). Ultimately, Mr. Nelson testified that trade practice dictates that if the angle of 

the slings falls between two angles, it is proper to choose the lesser angle to determine load 

capacity. (Tr. 350). That said, Mr. Nelson’s assessment of the sling angle is not based upon 

actual measurement, nor on actual operating conditions. For the above stated reasons, the Court 

finds the testimony of Mr. Nelson, as it relates to the sling angle, should be accorded little 

weight. Accordingly, the Court finds that, at worst, the combined sling capacity is 3.8 tons 

(7,600 pounds); however, given Mr. Nelson’s testimony that the angle would be greater under 

full load, the combined capacity of the slings is likely greater. 

 Each of the crypts has to be aligned within a quarter-inch of the parallel chalk line and set 

next to one another in evenly spaced 8-foot increments. (Tr. 474–75, Ex. C-4, C-7). In order to 

achieve this, the final step in the installation process involves two employees—an employee to 

operate the excavator and another ground employee to guide the crypt. (Tr. 234). The excavator 

 

3. “Angle of loading is the inclination of a leg or branch of a sling measured from the horizontal or vertical plane as 

shown in Fig. N-184-5; provided that the angle of loading of five degrees or less from the vertical may be 

considered a vertical angle of loading. 29 C.F.R. § 1910.184(b). 

4. Respondent’s expert, Robert Harrell, who is a safety and health consultant but conceded he is not a professional 

engineer, testified that you only have a reduction in capacity “when you incline the two ends of a single sling in 

towards the center [of the load] and you get them off of vertical.” (Tr. 647). Further, Mr. Harrell stated that if you 

did not have a spreader bar and hooked the slings directly to the hook on the attachment, such an angle would 

impact the capacity of the slings. (Tr. 648). The Court fails to see a meaningful distinction—in either case the 

slings would be oriented at an angle, which, as testified to by Mr. Nelson, impacts the tensile strength of the sling. 

5. The accident occurred when the sling was under full load. While a latent defect in the crypt cement caused the 

sling’s anchor point on the corner to crumble, the crypt never crashed to the ground but was held above the ground 

in a suspended fashion. (Tr. 604). 
8 

operator affixes the sling legs to the pre-cut grooves on the crypt by hand, returns to the 

excavator, and swings the crypt into position for final placement. (Tr. 236, 239). As the crypt is 

being moved into position, the ground employee stands clear of the load. (Tr. 240–43). Once 

the crypt is in position, the excavator operator lowers the crypt to a height of 1–2 feet off of the 

ground. (Tr. 241). At this point, the ground employee stands approximately 2 feet away from 

the crypt and maneuvers it by hand in order to get the proper alignment, in some cases spinning 

it in order to achieve the proper orientation. (Tr. 241, Jt. Stip. No. 8). Once it is properly 

aligned, the excavator operator sets the crypt down on a patch of pea gravel, which allows for 

proper drainage and leveling of the crypt. (Tr. 235). Using a laser, Respondent ensures that the 

crypt is level and is at the proper elevation. (Tr. 450). If the crypt is not level, the excavator 

operator will lift the crypt out of position and allow the ground employee to add, spread, or 

remove pea gravel to achieve the proper elevation. (Tr. 247–48). This leveling process would 

be accomplished with a long-handled tool, such as a rake or shovel, which would obviate the 

need to physically reach under the crypt while it was suspended. (Tr. 248). If the leveling 

measurements were particularly off, then the excavator operator would move the crypt out of the 

way to allow the ground employee to place additional gravel in a hard to reach area. (Tr. 248). 

 On May 6, 2011, [redacted] was working as a ground person at the worksite while his 

foreman, Tyler Felton, was operating the excavator. During the process of orienting one of the 

crypts, one of the wire slings slipped from its pre-cut groove and amputated [redacted]’s thumb. 

(Jt. Ex. 1). Further investigation revealed that a latent defect in the cement caused the sling’s 

anchor point on the corner of the crypt to crumble, which, in turn, caused the sling to slip out of 

place. (Tr. 604). However, when the crypt failed, the sling slipped upward and tightened down 

on the upper portion of the crypt, which prevented it from falling to the ground. (Tr. 605). This 

incident was reported to Cal-OSHA, who referred the case to OSHA because the incident 
9 

occurred on federal property. (Tr. 45–46). An investigation was conducted on May 20–24, 2011 

by Compliance Safety and Health Officer (“CSHO”) Pete Mollenberndt. (Tr. 46). As a result of 

his inspection, CSHO Mollenberndt issued the Citation. 

VI. Controlling Case Law 

To establish a prima facie violation of Section 5(a)(2) of the Act, Complainant must 

prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; 

(2) the terms of the standard were violated; (3) one or more of the employees had access to the 

cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could 

have known, of the violative condition. Ormet Corporation, 14 BNA OSHC 2134 (No. 85-0531, 

1991). 

To establish a prima facie violation of Section 5(a)(1) of the Act, also known as the 

general duty clause, Complainant must prove by a preponderance of the evidence that: (1) a 

condition or activity in the workplace presented a hazard to employees; (2) the employer or its 

industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996). The evidence must also show 

that the employer knew or with the exercise of reasonable diligence, should have known of the 

hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204 (No. 03-1344, 2007). 

A violation is “serious” if there was a substantial probability that death or serious 

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

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

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 
10

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993). 

VII. Conclusions of Law 

A. Citation 1, Item 1 

i. General Duty Clause

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

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The 

employer did not furnish employment and a place of employment which 

were free from recognized hazards that were causing or likely to cause 

death or serious physical harm to employees in that employees were 

exposed to amputation, struck by and crushed by hazard, while guiding a 

suspended load by hand. 

a) Miramar National Cemetery – On or about 06MAY11, an employee 

suffered an amputation injury when the burial crypt he was guiding by 

hand slipped in its wire rope basket hitch, the wire rope left grooves 

cut into the corner of the burial crypt, the employee’s hand was 

positioned above the basket hitch on the suspended load, the burial 

crypt slipped down approximately eight inches before the wire rope 

hitch caught it, the employees left hand was caught by the wire rope at 

his left thumb, amputating the thumb. 

Among other methods, feasible and acceptable methods to correct this 

hazard is to: 

(1) Follow the American Society of Mechanical Engineers (ASME B30.9-

1996, Slings) Safety Standard for Cranes, Derricks, Hoists, Hooks, 

Jacks, and Slings, Section 9-2.9: Operating Practices, which states: 

(h) Portions of the human body should be kept from between the sling 

and the load and from between the sling and the crane hook or hoist 

hook.

(i) Personnel should stand clear of the suspended load 

(r) The sling’s legs should contain or support the load so that the load 

remains under control 

(2) Follow 29 C.F.R. 1910.184(c)(6) Slings shall be securely attached to 

their loads. 
11

(3) Reject burial vaults with manufacturer flaws that can affect the 

stability of the suspended load. 

The cited standard provides: 

Each employer shall furnish to each of his employees employment and a 

place of employment which are free from recognized hazards that are 

causing or are likely to cause death or serious physical harm to his 

employees. 

29 U.S.C. § 654(a)(1). 

 This citation is directed at the work method described above, which Respondent employs 

to install the burial crypts in their final resting place. In particular, Complainant cited 

Respondent for exposing its employees to amputation, crushing, and struck-by injuries during the 

course of guiding a suspended crypt by hand. 

 First, the Court must determine whether the work method employed by Respondent 

presented a recognized hazard to its employees. According to Complainant’s expert, Mr. 

Nelson, there is no safe location to place one’s hands on a suspended load, which is one part of 

Respondent’s work method. This conclusion is based, in part, upon the American Society of 

Mechanical Engineers (ASME B30.9-1996, Slings) Safety Standard for Cable-Ways, Cranes, 

Derricks, Hoists, Hooks, Jacks, and Slings, which is a set of consensus standards governing the 

use of slings. (Ex. C-30). Although many of the specific provisions were discussed at trial, the 

three that are most pertinent to this discussion are subsections (h), (i), and (r), which are 

referenced above. (Ex. C-30). 

Complainant contends that the work method employed by Respondent is hazardous in 

light of Respondent’s failure to adhere to these standards. Specifically, Complainant argues that 

Respondent’s work practice is unsafe in light of the following: (1) Respondent uses a basket 

hitch sling configuration, which is prone to disengagement from the load because there is no 

positive contact between the load and lifting mechanism; (2) the purported insufficiency of the 
12

load capacity of the slings and custom lifting accessory increased the potential for 

disengagement; and (3) the use of hydraulic equipment, which Complainant’s expert testified is 

jumpy and erratic, increasing the likelihood of the crypt swinging unexpectedly. (Tr. 338–40). 

Respondent, on the other hand, argues that its extensive use of this equipment and 

method without incident shows the absence of a recognized hazard because its method for 

aligning crypts by hand requires that employees to keep their bodies and body parts out of 

specified “kill zones”, wherein the potential for injury is high. (Tr. 446, Ex. R-5). 

 The Court finds that working around suspended loads is a hazard that is recognized both 

by the industry engaged in hoisting materials and by Respondent specifically. See Kokosing, 17 

BNA OSHC at 1873 (voluntary industry codes may be used to demonstrate industry 

recognition). However, in light of; (i) the training provided by Respondent; (ii) the work 

methods Respondent employs; and (iii) the Complainant’s own recognition that every method of 

abatement identified in its Citation as being feasible to eliminate the hazard is being done by the 

Respondent, the Court finds that Respondent’s employees were not exposed to the hazard 

identified by Complainant. 

First, the Court would note that, with the exception of when the load is 1–2 feet off of the 

ground, Respondent’s employees stand clear of the suspended load. It is not clear to this Court 

that the ASME standard, which states that “[p]ersonnel should stand clear of the suspended 

load,” is absolute. The standard is couched in discretionary (should) rather than mandatory 

(shall) terms, and both experts stated that there are circumstances in which employees need to 

stand near a suspended load in order to guide it. (Tr. 317, 398, 603–604). Mr. Nelson, 

Complainant’s expert, testified that the nature and difficulty of certain work, such as handling Ibeams, allows for work on suspended loads. (Tr. 397–98). This understanding is confirmed by 

the standards found at 29 C.F.R. § 1926, Subpart CC, Cranes and Derricks in Construction, 
13

which allows for employees to stand within the fall zone when guiding a load. See 29 C.F.R. § 

1926.1425(b). Further, the Court would also note that subsections (h) and (i) of the ASME 

standards appear to be at odds with one another. If employees are always supposed to stand clear 

of suspended loads, then it would appear unnecessary to also require that they keep their hands 

and body parts from between the sling and the load. That is, unless, there are circumstances in 

which employees need to stand near the suspended load in order to guide it; in which case, the 

employee would need to be sure to avoid placing their hands and/or body parts in a position 

where there is a potential pinch point. Unfortunately for [redacted], the hazard associated with 

placing your hands between the sling and the load came to fruition; however, the Court finds that 

this was a product of his failure to follow work rules, not from the hazard associated with 

standing near suspended loads.6

 

 Second, the Court is unconvinced by Complainant’s other assertions regarding the 

purported problems associated with Respondent’s use of a basket hitch configuration or its use of 

an excavator to hoist the crypts. The basket hitch configuration of the sling is clearly an 

acceptable method for hoisting as it is listed in both the Certex load capacity chart (Ex. C-29) as 

well as in 29 C.F.R. § 1910, Subpart N. See 29 C.F.R. § 1910.184 fig. N-184-4. Merely opining 

that such a configuration is prone to disengagement, without describing why Respondent’s use of 

that particular set-up was deficient—and in the face of OSHA standards that allow its use—is 

insufficient to establish a hazard. As noted above, the Court is also unpersuaded by Mr. 

Nelson’s calculation of the sling angle and, thus, his determination of the sling capacity. The 

 

6. By saying this, however, the Court does not find that Respondent has established the defense of unpreventable 

employee misconduct. In light of the conclusion reached later that the Complainant has not carried his burden to 

establish a prima facie case of a violation of the General Duty Clause, it is unnecessary for the Court to address that 

affirmative defense. 
14

Court’s conclusion is buttressed by the fact that Respondent has used this particular set-up 

thousands of times without an incident involving the actual ability of the slings to hold the load.7

 Finally, the Court does not find that the use of a hydraulic excavator imposed a unique 

hazard as posited by Mr. Nelson. Respondent’s expert, Mr. Harrell, credibly testified that, 

although hydraulic equipment used to present the problem of erratic movement, such concerns 

have been remedied through the advances in hydraulic technology. (Tr. 587–88). The Court is 

convinced in particular by Mr. Harrell’s experience operating and training the operation of such 

equipment, as well as his testimony regarding the use of hydraulic excavators to carry suspended 

loads in construction and underground work. (Tr. 557, 587). 

 The Court is also unconvinced that Respondent was aware of the hazard identified by 

Complainant. If the hazard addressed by this citation item is, as the proposed abatement 

suggests, the potential for amputation injuries as a result of the sling not being securely attached 

to the load, the Court finds that such problems were not attributable to the work method 

employed by Respondent. The injury suffered by [redacted], while unfortunate, was the product 

of a latent defect in the crypt that could not have been foreseen by Respondent. Each crypt was 

quality checked by a VA engineer prior to being transported to the staging area. Although, as 

Complainant points out, loads had slipped in the past, nobody testified that the lifting system 

failed; rather, this was a product of crypt defects, most of which were caught prior to being 

installed. (Tr. 468–69). Respondent accounted for this by training its employees to look at the 

crypt grooves prior to attaching the slings and to place their hands below the sling and out of the 

way of the pinch point.8 (Tr. 245, 469–70). Ultimately, the Court finds that Respondent used 

 

7. The Court is aware that the primary purpose of the Act is to prevent the first accident; however, as it regards the 

capacity of the slings to carry their intended load, the repeated use of this particular sling set-up is relevant to the 

question of whether the sling capacity was adequate. The incident involving [redacted] was the result of a faulty 

crypt and not the inability of the slings to carry the load. 

8. It is also worth noting that when [redacted] was injured, the sling slipped from the groove; however, it did not 

completely disengage and remained suspended by the lifting device. (Tr. 605). 
15

reasonable diligence to uncover and address the hazards at its worksite. See N & N Contractors, 

Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001). 

 As previously stated, the Court is reluctant to find exposure to a hazard existed when 

every means of abatement identified by the Complainant in his citation item was performed by 

the Respondent. Lastly, the means of abatement suggested by Complainant in this citation item 

(reproduced above) were all performed by Respondent: (1) personnel stood clear of the 

suspended load as it was being moved into its final position, and it was not until it was 1-2 feet 

above the ground that an employee, standing 2 feet away from the load, would align the load by 

hand; (2) Respondent trained its employees to keep body parts away from between the sling and 

the load, or “kill zones”; (3) the sling’s legs contained and supported the load so that it remained 

under control—only when the load itself crumbled due to a defect did the load slip, and even 

then the slings kept the crypt elevated; and (4) crypts with observable manufacturer flaws were 

rejected by either the VA or Respondent. Not only did Complainant fail to prove that 

Respondent’s measures were inadequate, he identified abatement measures that were, for the 

most part, already being implemented. 

At trial, fully aware that the Respondent had implemented all the methods of abatement 

suggested by the Complainant, the Complainant attempted to propose “new” alternative methods 

of abatement, such as tag lines, a rigid 15-foot long pole, or a template, which were not identified 

in the citation item.9 With respect to these “new” alternative methods of abatement, the Court 

notes that litigation is not a moving target that permits a party, in the face of strong 

countervailing evidence, to continually throw the proverbial dart until a theory of liability sticks. 

 

9. Mr. Nelson made a passing suggestion that Respondent could use a template, which would obviate the need to 

manipulate the crypts by hand; however, there was scant discussion of the feasibility of such a measure. See ACME 

Energy Svcs. dba Big Dog Drilling, 23 BNA OSHC 2121 (No. 08-0088, 2012) (“The Secretary has the burden of 

‘demonstrat[ing] both that the [proposed abatement] measures are capable of being put into effect and that they 

would be effective in materially reducing the incidence of the hazard.’” (quoting Beverly Enters., 19 BNA OSHC 

1161 (No. 91-3344, 2000))). 
16

Notwithstanding, Complainant still failed to prove that these “new” implements were feasible or 

an effective means to address the hazards associated with working on a suspended load. In 

addition to the problem of how tag lines or a rigid pole could be attached to the load in order to 

align it, the primary problem was one of precision. Complainant’s expert testified that using 

one’s hands would be a quicker way of accomplishing the task of alignment; however, he did not 

believe that a hands-on approach would be any more precise. (Tr. 473). The Court disagrees. 

Mr. Peacock testified that the crypts had to be placed precisely within a specified area of inches 

or the whole row of crypts could be crooked, thereby disrupting the precision required for the 

placement of thousands of crypts. (Tr. 450, 474–75). To that end, Mr. Peacock stated that it 

would be near impossible to make the sort of minute adjustments necessary when standing 15 

feet away from the crypt. (Tr. 479–80). Further, [redacted] stated that the use of a rigid pole 

would not be practical because the loads were simply “too heavy” to move with a pole. (Tr. 

287). Mr. Harrell also testified that the use of a rigid pole may result in a greater hazard. If a 

crypt abruptly shifted with the pole resting on it, this could result in the pole being jammed back 

into the body of the holder of the pole. (Tr. 607). Complainant failed to prove that Respondent’s 

measures were inadequate or that the measures it proposed were feasible and effective. 

The Court finds that Complainant failed to prove a violation of the general duty clause 

for the reasons stated above . Accordingly, Citation 1, Item 1 based upon an alleged violation of 

the general duty clause will be VACATED. 

ii. Training Violation10

On September 11, 2012, Complainant filed a Motion for Leave to Amend the Complaint 

and Citation, which was granted by the Court. Complainant requested leave to amend Citation 

 

10. Since the two alternative theories rest, in large part, on the same set of facts and conclusions, the Court 

incorporates by reference its findings of fact and conclusions of law from Section VII.A.i. 
17

1, Item 1 to plead in the alternative a violation of 29 C.F.R. § 1926.21(b)(2). The cited standard 

provides: 

The employer shall instruct each employee in the recognition and 

avoidance of unsafe conditions and the regulations applicable to his work 

environment to control or eliminate any hazards or other exposure to 

illness or injury. 

29 C.F.R. § 1926.21(b)(2). 

 The cited standard requires Complainant to prove that “the cited employer failed to 

provide the instructions that a reasonably prudent employer would have given in the same 

circumstances.” El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1424 (No. 90-1106, 

1993). “Thus, the 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.’” Compass Environmental, Inc., 23 BNA OSHC 1132 (No. 06-1036, 

2010) (citing W. G. Fairfield Co., 19 BNA OSHC 1233 (No. 99-0344, 2000)). When the 

Respondent produces evidence of training, then the burden shifts to the Secretary to show that 

training was inadequate or that the employee otherwise was unable to recognize and avoid the 

hazards. N & N Contractors, Inc., 18 BNA OSHC 2121, 2126–27 (No. 96-0606, 2000).

 The Court finds that the standard applies; however, the Court does not find that the 

standard was violated. Respondent had a training program in place that addressed the specific 

hazards identified by Complainant. As noted above, Respondent’s program identified specific 

“kill zones” wherein employees could be stuck or crushed by suspended loads, as well as the 

specific locations where it was proper to place one’s hands or feet during the alignment of the 

crypts. Each of these instructions was specifically tailored to the concerns highlighted by 

Complainant in this citation item. This program was reiterated to its employees through initial 

training and tail gate meetings, wherein employees had to sign in and indicate that they were 

present and had received the information. (Tr. 274, 441–42, 495, Ex. R-4, R-5, R-6). 
18

 Complainant contends that Respondent’s training program was inadequate on two 

separate bases: (1) its employees were exposed to hazards when they were working in close 

proximity to suspended loads; and (2) [redacted] could not recall the specifics of his training, 

which indicates that Respondent’s training program was not sufficiently specific so as to be 

remembered. See Pressure Concrete, 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992) (“A 

reasonably prudent employer would attempt to give instructions that are understood and 

remembered by its employees, and would make at least some effort to assure that the employees 

did, in fact, understand the instructions.”). As to (1), the Court has already addressed how 

Respondent addressed the hazards associated with working on suspended loads in its discussion 

regarding the general duty clause and concluded that Respondent’s employees were not exposed 

to a hazard. With respect to (2), the Court finds that, although it is important to ensure that 

current employees both understand and remember the instructions given by their employer, by 

the time of trial, [redacted] had not worked for Respondent for almost a year-and-a-half. (Tr. 

226). It is understandable that he may not recall specifics about the training that he received or 

that which he provided as a foreman. That said, even though he was not able to recall specific 

terminology or instructions, he was able to generally recall certain prohibitions that were put in 

place by Respondent, such as not pulling on the cables, not getting between crypts, watching 

your feet, and the distance he was supposed to stay away from the suspended crypt. (Tr. 287–

89). The general principles enunciated by [redacted] reflect that Respondent provided adequate 

training to its employees. [redacted]’s inability to recall specific terminology, such as “kill 

zone”, or the particular discussions that were had at tailgate meetings or even his initial 

orientation is not indicative of faulty training; rather, it is to be expected considering that it had 

been over a year-and-a-half since he had worked for Respondent and, thus, he had no need to 

recall such terms or implement the training provided. 
19

 Based on the foregoing, the Court finds that Complainant failed to prove a violation of 

the general duty clause, or, in the alternative, a violation of 29 C.F.R. § 1926.21(b)(2). 

Accordingly, Citation 1, Item 1 will be VACATED.

B. Citation 1, Item 3 

 Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows: 

29 C.F.R. 1926.251(a)(4): Special custom design lifting accessories for 

material handling were not marked to indicate the safe working loads and 

were not proof tested prior to use to 125 percent of their rated load(s): 

a) Miramar National Cemetery: On or about 24MAY11, an LBX LinkBelt 225 Excavator, SN ECAJ8-3866, was equipped with un-tested 

and un-marked custom lifting accessory used to lift and transport 

concrete burial vaults weighing 8,472 pounds. 

b) Miramar National Cemetery – On or about 24MAY11, a SkyTrak 

10054 rough terrain fork lift, SN 0160003864, was equipped with untested and un-marked custom lifting accessory used to lift and 

transport concrete burial vaults weighing 8,472 pounds. 

 The cited standard provides: 

Special custom design grabs, hooks, clamps, or other lifting 

accessories, for such units as modular panels, prefabricated structures 

and similar materials, shall be marked to indicate the safe working 

loads and shall be proof-tested prior to use to 125 percent of their rated 

load. 

29 C.F.R. § 1926.251(a)(4). 

By its terms, the cited standard applies to custom design lifting accessories for material 

handling. Id. Mr. Peacock, president of Respondent, designed the custom lifting accessories that 

were attached to both the forklift and excavator. (Jt. Ex. 1). Thus, the standard applies. The 

Court also finds that the standard was violated. 

First, the standard requires that all special custom design lifting accessories “shall be 

marked to indicate the safe working loads . . . .” Id. Respondent does not dispute the fact that 

the lifting accessory designed by Mr. Peacock was not marked. Rather, Respondent contends 
20

that § 1926.251(a)(4) is “one of those standards in which there is no presumption a hazard exists 

when its terms are not met.” (Resp’t Br. at 26). In support of this argument, Respondent cites to 

Anoplate Corp., 12 BNA OSHC 1678 (80-4109, 1986), wherein the Commission held that 29 

C.F.R. § 1910.94(d)(9)(v) required the Secretary to prove a significant risk of harm. The 

Commission imposed such a burden on the Secretary because the requirement to wear eye 

protection was prefaced by the phrase “whenever there is a danger of splashing . . . .” 29 C.F.R. 

§ 1910.94(d)(9)(v). By using such a phrase in promulgating the regulation, the Secretary left it 

to the Commission to determine whether there was a significant risk of harm on a case-by-case 

basis. Anoplate, 12 BNA OSHC 1678. In other words, the standard in Anoplate did not presume 

a hazard when its terms were not met because the requirement to wear eye protection was 

conditioned by the presence of a splashing hazard. Id. The standard cited in this case, however, 

presumes that there is a significant risk of harm associated with the failure to mark equipment 

and proof test it to 125% of its rated load. There is no precedent condition that activates the 

requirement to tag and test custom lifting accessories, there is only a mandate that such actions 

shall be taken. Although Respondent is technically correct that the failure to mark the equipment 

does not render its use presumptively hazardous, the standard is intended to prevent the hazard of 

overloading equipment and accessories. Thus, with respect to the first requirement—marking 

the load capacity on custom lifting accessories—Respondent violated the standard. 

 Respondent also violated the second part of the standard. In addition to marking the safe 

capacity of the custom lifting accessories, Respondent is also required to proof test the 

accessories to 125 percent of their rated loads. Respondent’s failure to comply is two-fold: (1) It 

is unclear that Respondent was aware of what the rated load of the accessories were; and (2) 

Respondent failed to conduct a proof test up 125 percent of the accessories’ rated loads. 

According to the definitions found in 29 C.F.R. § 1910.184(b), which address the use of slings 
21

and material handling equipment in general industry, a proof test is “a nondestructive tension test 

performed by the sling manufacturer or an equivalent entity to verify construction and 

workmanship of a sling.” See Simpson, Gumpertz & Heger Inc., 15 BNA OSHC 1851 (No. 89-

1300, 1992) (reiterating the general principle that standards containing broad or undefined terms 

may be given meaning by reference to other standards). First, in order to conduct a proof test, 

Respondent must be aware of the rated load of the custom accessory. The only evidence 

introduced by Respondent that would indicate knowledge of the rated load was Mr. Peacock’s 

and Mr. Harrell’s testimony regarding the capacity of the slings to carry the load, which they 

estimated to be 7.8 tons. (Tr. 510–11, 598–99). This rating, however, does not take into account 

the angle of loading, which, as discussed above in Section V, reduces the load capacity of the 

slings. Nor, in the case of the forklift attachment, does it account for the use of an eye bolt that 

was welded onto the attachment instead of bolting it to the attachment using the threads. 

According to Mr. Nelson, the “most concerning feature of [the design of a load transferring 

member] is always the connection.” (Tr. 371). Mr. Nelson opined that there are many factors 

that have to be considered when evaluating the integrity of the weld, including geometry, 

configuration, and metallurgy of the weld. (Tr. 372). Neither Mr. Peacock nor Mr. Harrell was 

able to provide concrete information about these critical factors that would impact the load 

capacity of the custom attachment; Mr. Peacock could not even testify as to what the rated load 

capacity of the attachments was. (Tr. 508–509). Without knowledge of the rated capacity of the 

custom attachment, Respondent could not have performed a proof test of 125 percent of the rated 

load. 

Even if the Court were to assume that the rated load of the custom accessory was known, 

Respondent failed to conduct an adequate proof test of the accessory. Mr. Peacock testified that 

a test was performed on the equipment approximately one month prior to the beginning of the 
22

Miramar project. (Tr. 507). This test involved placing a crypt loaded with a couple of cubic 

yards of dirt, weighing roughly 3 tons, on top of another crypt. (Tr. 456). This means that the 

load carried by the attachment was roughly 14,000 pounds. (Ex. C-28). By Respondent’s own 

admission, however, this test was not performed for the purposes of testing the custom lifting 

attachment; rather, the test was performed to test the structural integrity of the crypt lids. (Tr. 

508). Mr. Peacock also testified that these tests were performed with the attachment provided by 

the manufacturer, which means that the devices that were actually used during the crypt 

installation process were not tested. (Tr. 533–34). Based on the foregoing, the Court finds that 

the terms of the standard were violated. 

The Court also finds that Respondent’s employees had access to the cited condition. 

[redacted] and other employees worked in close proximity to the suspended loads during the 

final installation process. The failure to proof test and mark the custom lifting accessories on the 

forklift and excavator exposed Respondent’s employees, including the ground person and 

equipment operator, to potential crushing and struck-by injuries, because employees could 

potentially misjudge the safe lifting capacity of the lifting devices and overload the equipment, 

which could lead to failure of the lifting device. 

Respondent also knew or could have known of the violative condition. Mr. Peacock, 

president of Respondent, was responsible for the design and creation of the custom lifting 

accessories on both the forklift and the excavator. Mr. Peacock also testified that he was aware 

that the custom devices were not marked to indicate their safe working loads. (Tr. 502). Finally, 

Mr. Peacock also testified that the test performed on the crypts was actually done with the 

attachment provided by the crypt manufacturer, which means that, even if the test was a 

legitimate means of determining 125% of the attachment’s rated capacity, the test was not 
23

performed with the equipment indicated in this citation item. Respondent was directly aware of 

violative condition.11 

The violation was also serious. CSHO Mollenberndt testified without dispute that, if an 

accident occurred, there was a substantial probability that death or serious physical harm could 

result if an accident occurred. (Tr. 126–27). As noted above, the custom lifting accessory could 

be overloaded and fail, which would expose employees to crushing injuries as well as the 

possibility of being struck by the suspended 8,472-pound crypt while working in the vicinity of 

the forklift or excavator. Accordingly, Citation 1, Item 3 will be AFFIRMED. 

Citation 1, Item 5 

Complainant alleged a serious violation of the Act in Citation 1, Item 5 as follows: 

29 C.F.R. 1926.602(c)(1)(ii): Modifications or additions which affect the 

capacity or safe operation of the equipment were made without the 

manufacturer’s written approval: 

a) Miramar National Cemetery – On or about 24MAY11, a SkyTrak 

10054 rough terrain forklift, SN 0160003864, removed the 

manufacturer forks, and added an employer crafted, custom attachment 

on the end of the boom without approval of the manufacturer. 

 The cited standard provides: 

No modifications or additions which affect the capacity or safe operation 

of the equipment shall be made without the manufacturer's written 

approval. If such modifications or changes are made, the capacity, 

operation, and maintenance instruction plates, tags, or decals shall be 

changed accordingly. In no case shall the original safety factor of the 

equipment be reduced 

29 C.F.R. § 1926.602(c)(1)(ii). 

 According to 29 C.F.R. § 1926.602(a), the rules contained therein apply to earthmoving 

equipment, such as “scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, 

 

11. Alternatively, the Court also finds that Respondent had constructive knowledge of the condition through its 

foreman, Tyler Felton. The custom lifting accessories on the forklift and excavator, which were operated by Mr. 

Felton, were in plain view and were repeatedly used to move crypts throughout the working day. The knowledge of 

Respondent’s foreman, Mr. Felton, is properly imputed to Respondent. Revoli Const. Co., 19 BNA OSHC 1682 

(No. 00-0315, 2001) (holding that actions and knowledge of supervisory personnel are generally imputed to their 

employers). 
24

graders, agricultural and industrial tractors, and similar equipment.” More specifically, 

subsection (c) applies to lifting and hauling equipment. See 29 C.F.R. 1926.602(c). The forklift 

clearly falls under the rubric of lifting and hauling equipment. Accordingly, the standard applies. 

 In order to prove that that the terms of the standard were violated, Complainant must 

establish: (1) there was an addition or modification to the forklift, (2) that affected the forklift’s 

capacity or safe operation, and (3) Respondent failed to procure the manufacturer’s written 

approval. See id. § 1926.602(c)(1)(ii). First, Respondent admitted that it did not receive the 

manufacturer’s approval to make modifications to the forklift. (Tr. 513). Second, the Court 

finds, at the very least, there was an addition to the forklift to the extent that Respondent created 

a custom lifting accessory that was connected to the boom by means of a custom attachment. 

(Ex. C-13, C-14). In other words, because the attachment itself was not made by the 

manufacturer, Respondent was required to craft a connection point to attach the custom lifting 

assembly to the boom of the forklift. Thus, the sole operative question for the resolution of this 

citation item is whether the capacity or the safe operation of the forklift was affected by the 

addition. The Complainant has the burden of proof to present credible objective and verifiable 

evidence that either the capacity or the safe operation of the forklift was affected in order for it to 

prevail. 

 Complainant contends that the standard was violated because the anchorage point of the 

forklift was altered, which resulted in the forklift lifting the crypts from above the load instead of 

from below it. (Tr. 126, 160). Additionally, Complainant’s expert, Mr. Nelson, was most 

concerned about the stability of the weld, which was main point of connection between the 

custom lifting device and the boom of the forklift. (Tr. 371–72, 431). Respondent argues that 

the equipment never failed and that the removal of the fork attachment to the forklift actually 
25

increased its capacity from 10,000 pounds to 29,805 pounds.12 Respondent’s expert testified that 

the use of a custom attachment did not alter the capacity of the forklift itself, nor did the 

attachment render the use of the forklift unsafe as evidenced by the thousands of times it had 

been used prior to the inspection without incident. (Tr. 583–86).

 First, the Court does not find that the removal of the forks changed the capacity of the 

forklift from 10,000 pounds to 29,805 pounds as contended by the Respondent. The terms 

“Maximum Capacity” and “Maximum Weight Without Attachments” that are used in Exhibit C19 should be given their common sense meaning. As such, the Court finds that the both terms do 

not refer to the same thing, i.e., different load carrying maximums; rather, the former refers to 

the forklift’s capacity to lift and the latter refers to how much the forklift weighs without 

anything attached to it. According to Exhibit C-19, the maximum capacity for the forklift was 

10,000 pounds as designed by the manufacturer. (Tr. 373). Thus, any changes made to the 

forklift that altered its capacity needed to be approved by the manufacturer. 

It is interesting to note, however, that neither party discussed the asterisk on the 

manufacturer’s plate, which states “Refer to load capacity chart for truck with attachment and 

individual load ratings stamped on forks, if equipped. Use lowest capacity of all ratings.” (Ex. 

C-19). What this suggests is that the capacity of the forklift is dependent upon the attachments 

used and, as noted by Mr. Harrell, the extension of the telescoping lift, but, in any case, the 

capacity of the machine maxes out at 10,000 pounds. (Tr. 580, 582). Complainant introduced 

the load capacity chart for the excavator, which takes into account different attachments and the 

extension of the boom at various lengths and heights; however, the chart specifically mentioned

on the forklift was not introduced as evidence, which deprives the Court of the opportunity to 

determine what the capacity of the forklift is when taking into account different variables like the 

 

12. The Court sincerely doubts that a manufacturer of lifting equipment would equip a machine with attachments 

that reduce the lifting capacity by close to two-thirds of its maximum. 
26

attachments used and extension of the boom.13 Further, the failure to introduce the load chart or 

operator’s manual for the forklift also deprives the Court of the ability to ascertain whether this 

particular machine is designed for overhead lifting. 

Ultimately, it is unclear that the load capacity of the forklift itself was affected by the 

custom attachment. Complainant’s expert focused almost entirely upon the design of the custom 

lifting attachment and the weld that connected the attachment to the boom. Specifically, he 

testified about the number of ways in which the weld could fail and the impact of dynamic, 

lateral loading which could cause the welded attachment to separate “at any given time.” (Tr. 

374, Compl’t Br. at 20). The problem, however, is that these concerns are all directed towards 

the load capacity of the custom attachment and weld, not the capacity of the forklift itself.14

 (Tr. 

371). As noted above, the operative question in this case is whether the load capacity of the 

forklift has been affected by virtue of the modification or addition. Merely because the structural 

integrity of the custom attachment is in question does not mean that the capacity of the forklift 

has been affected. Complainant’s witnesses opined that the capacity of the forklift could have

been affected by the addition of the custom attachment; however, Complainant was unable to 

show that it was, in fact, affected. 

The question of capacity, however, does not resolve the issue. The standard also states 

that modifications or additions that affect the safe operation of the vehicle must also be approved 

by the manufacturer. Complainant’s arguments with respect to the safe operation of the forklift 

are speculative at best. Mr. Nelson’s testimony was, for the most part, couched in hypotheticals 

about what could happen if the weld were to break in a certain way; however, none of those 

 

13. According to Mr. Harrell, the load chart for the forklift would be located inside the cab of the forklift next to 

where the operator sits and operates the equipment. 

14. The load capacity of the custom attachment was already addressed by Complainant in Citation 1, Item 3. It is a 

much different issue to address the actual lifting capacity or safe operation of the forklift to which the custom 

accessory was attached. In that regard, it is interesting to note that the forklift was cited for a violation of 29 C.F.R. 

§ 1926.602(c)(1)(ii), and the excavator was not even though both vehicles were equipped with custom attachments 

that may or may not have affected the capacity or safe operation of the vehicle. 
27

hypotheticals actually addressed identifiable deficiencies in the welded portion of the custom 

attachment. This is due to the fact that Mr. Nelson did not physically examine the attachment or 

weld, but instead based his opinion on pictures of the attachment and weld. The only concrete 

evidence introduced by Complainant that addressed the safe operation of the forklift was the 

video, which showed the crypt swaying as it was being hauled by the forklift. (Ex. C-12). Mr. 

Nelson testified that the swaying motion of the crypt imparted dynamic, lateral stress on the 

weld, which, if it failed, could strike employees in the vicinity of the load, including the operator 

of the forklift. (Tr. 374, Ex. C-12). Respondent’s expert, Mr. Harrell, on the other hand, noted 

that the forklift, although operating on uneven ground while hauling a dynamic load, was still 

able to remain stable with all wheels firmly on the ground. (Tr. 586). Though he could not 

testify as to the integrity of the welded attachment, Mr. Harrell also noted that the design of the 

rough terrain forklift accounts for uneven terrain and dynamic loads. (Tr. 586). Specifically, 

Mr. Harrell pointed to the front tires and outriggers, which serve to protect the operator from 

swinging loads. (Tr. 586–87). Although the Court appreciates Mr. Nelson’s concerns regarding 

the potential for a weld to fail, the same concerns could be expressed with respect to any welded 

attachment. Though the purpose of the Act is to prevent the first accident, the Court cannot 

disregard the fact that this same set-up has been used thousands of times without incident. Even 

the accident that precipitated the inspection at issue was not the product of Respondent’s faulty 

equipment; rather, it was the result of a poorly manufactured crypt, which was not an aspect that 

Respondent could control. The Court gives little weight to the testimony of Mr. Nelson on the 

issues of capacity or safe operation since his conclusions are either speculative or based on 

unexamined or untested assumptions about the integrity of the weld. This Court cannot permit 

the Complainant to meet his burden of proof with conclusions based on speculation. To do so 

would undermine the integrity of longstanding case law that places the burden on him to prove a 
28

violation of the Act. Complainant failed to present credible, objective, factual evidence that 

established the custom attachment affected the capacity of the forklift or rendered it unsafe to 

operate for the reasons stated above. Accordingly, Citation 1, Item 5 will be VACATED. 

C. Citation 1, Item 6 

Complainant alleged a serious violation of the Act in Citation 1, Item 6 as follows: 

29 C.F.R. 1926.701(b): All protruding reinforcing steel, onto and/or into 

which employees could fall or come against, was not guarded to eliminate 

the hazard of impalement: 

a) Miramar National Cemetery – On or about 20MAY11, steel 

reinforcing rods were not capped against impalement. 

b) Miramar National Cemetery – On or about 24MAY11, steel 

reinforcing rods were not capped against impalement. 

The cited standard provides: 

Reinforcing steel. All protruding reinforcing steel, onto and into which 

employees could fall, shall be guarded to eliminate the hazard of 

impalement. 

29 C.F.R. § 1926.701(b). 

 On the first day of CSHO Mollenberndt’s inspection of the worksite, he noticed several 

uncapped steel reinforcing rods that had been pounded into the ground to aid in the alignment of 

the burial crypts. (Tr. 59). On May 20, 2011, Respondent’s foreman, Tyler Felton, advised 

CSHO Mollenberndt that he knew the rods should be capped and that he would ensure that the 

rods would be capped in the future. (Tr. 67–68). When CSHO Mollenberndt arrived at the 

worksite a couple of days later on May 24, 2011, he observed that many of the rods remained 

uncapped. (Tr. 68). There were approximately 8–12 rods that stood 1–4 feet out of the ground, 

and, depending on the location of the crypts, located adjacent to or roughly 6 feet away from the 

crypts. (Tr. 60, Ex. C-4). At the time of the inspection, CSHO Mollenberndt observed 

employees working in close proximity to the uncapped rods, including some employees that 

were standing on top of the crypts. (Tr. 61, Ex. C-4). 
29

 Respondent contends that the cited standard is inapplicable and the citation should be 

vacated. Specifically, Respondent points to the scope and application paragraph of 29 C.F.R. § 

1926.700(a), which states: 

This subpart sets forth requirements to protect all construction employees from 

the hazards associated with concrete and masonry construction operations 

performed in workplaces covered under 29 CFR Part 1926. In addition to the 

requirements in Subpart Q, other relevant provisions in Parts 1910 and 1926 

apply to concrete and masonry construction operations. 

29 C.F.R. § 1926.700(a). Respondent admits to using “protruding reinforcing steel”, as that term 

is used in § 1926.701(b); however, Respondent argues that the standard does not apply because 

Respondent was not engaged in concrete or masonry operations. Complainant contends that 

because Respondent was using reinforced steel rods that protruded from the ground, the standard 

applies. Respondent may not have been performing concrete or masonry operations per se; 

however, it was utilizing tools/implements—rebar—associated with that specific industry. See 

Kunz Constr. Co., 15 BNA OSHC 1343 (No. 90-2995-S, 1991) (ALJ Schwartz) (finding a 

violation of 1926.701(b) when uncapped, reinforcing steel rods were used to “stake out the drive 

to the company trailer”). It is undisputed that the reinforcing steel rods were uncapped and 

protruding out of the ground. Thus, the standard applies and was violated. 

One of the hazards associated with the use of uncapped, reinforced steel rods is the 

potential for impalement, which was present at Respondent’s worksite. CSHO Mollenberndt 

observed an employee working on top of the crypts, approximately 5 feet off of the ground, near 

an uncapped steel rod. (Tr. 61, Ex. C-4). Additionally, other employees of Respondent were 

exposed to the impalement hazard when they worked on the ground in close proximity to 

uncapped rods. (Tr. 65–67). Accordingly, the Court finds that Respondent’s employees were 

exposed to the hazard. 
30

Finally, Respondent knew or should have known about the presence of the violative 

condition. As noted above, Respondent’s foreman, Mr. Felton, indicated that he was both aware 

of the requirement and that he would resolve the problem of the missing caps, which were

identified by CSHO Mollenberndt on the first day of his inspection. When CSHO Mollenberndt 

returned a few days later, he observed more uncapped steel rods. Not only was the condition 

open and obvious, but Respondent’s foreman was directly aware of the uncapped rods and 

allowed the condition to exist. It is well-settled that the actual or constructive knowledge of a 

foreman can be imputed to his employer. Rawson Contractors Inc., 20 BNA OSHC 1078 (No. 

99-0018, 2003); A.P. O'Horo Co., 14 BNA OSHC 2004 (No. 85-369, 1991). Mr. Felton held 

himself out as a representative of Respondent, and, therefore, his knowledge of the uncapped 

reinforced steel is properly imputed to Respondent. 

The violation was also serious. Sufficient testimony was presented by Complainant to 

establish that falling onto reinforced steel rods creates an impalement hazard, which could lead 

to serious injuries and even death. Based on the foregoing, the Court finds that Complainant 

established a violation of the standard. Accordingly, Citation 1, Item 6 will be AFFIRMED. 

VIII. PENALTY 

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. Gravity is the primary consideration and is determined by 

the number of employees exposed, the duration of the exposure, the precautions taken against 

injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 

(No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo

penalty determinations and have full discretion to assess penalties based on the facts of each case 
31

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); 

Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). 

CSHO Mollenbernt provided credible testimony to support his characterization of the 

size of Respondent’s business, the gravity of the violation, good faith, and prior history of 

violations. With respect to Citation 1, Item 3, the Court finds that the gravity associated with 

using an improperly tested, custom lifting device is high—if the device is not sufficiently tested 

and marked, it is possible for an employee to overload the equipment and expose himself and 

other employees to the potential for crushing injuries from the 8,000-plus pound crypts. 

Accordingly, the Court finds that a penalty of $3,000 is appropriate. With respect to Citation 1, 

Item 6, the Court finds that CSHO Mollenberndt overstated the gravity of the violation. For the 

most part, employees were exposed to the hazard while walking on the ground, which reduced 

the likelihood that an employee would trip and fall onto the protruding rebar. Further, when 

standing on top of the crypts, most of the rebar was approximately 6 feet away, which further 

reduced the likelihood of an impalement injury. In light of these facts, the Court finds that a 

penalty of $2,000 is appropriate. 

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(as originally plead and as an alternative amended citation) and its 

associated penalty are hereby VACATED. 

2. Citation 1, Items 2(a) and 2(b) are AFFIRMED as other-than-serious and a penalty of 

$900 is ASSESSED. 

3. Citation 1, Item 3 is AFFIRMED and a penalty of $3000 is ASSESSED. 
32

4. Citation 1, Item 4 is AFFIRMED as other-than-serious and a penalty of $900 is 

ASSESSED. 

5. Citation 1, Item 5 and its associated penalty are hereby VACATED. 

6. Citation 1, Item 6 is AFFIRMED and a penalty of $2000 is ASSESSED. 

Date: April 17, 2013 /s/ 

Denver, Colorado Patrick B. Augustine 

 Judge, OSHRC