United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W. 

Atlanta, Georgia 30303-3104 

Secretary of Labor, 

Complainant 

v. OSHRC Docket No. 22-1400 

Americold Logistics, LLC, 

Respondent. 

Representatives: 

C. Renita Hollins, Esq. 

U.S. Department of Labor, Office of the Solicitor, Atlanta, GA, for Complainant 

Lucas I. Pangle, Esq. and Thomas E. Ullrich, Esq. 

Wharton Aldhizer & Weaver, PLC, for Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

Respondent, Americold Logistics, LLC, (Americold), runs a large cold storage facility in 

Bloomingdale, Georgia, near Savannah. At the facility, which Americold refers to as “Savannah 

2,” the company receives, stores, and ships food products, primarily fresh and frozen protein. 

Employees at Savannah 2 use several types of powered industrial vehicles (PIV) to accomplish 

the various tasks associated with this work. In July of 2022, an employee of Americold, who was 

neither trained nor authorized to operate a PIV at Savannah 2, was severely injured attempting to 

avoid hitting a bollard while driving the PIV. 

Upon notification of the accident, the Occupational Safety and Health Administration 

initiated an inspection of the Bloomingdale facility. As a result of that inspection, the Secretary 

issued Americold a citation alleging two serious violations of § 5(a)(2) of the Occupational 

Safety and Health Act of 1970, 29 U.S.C. § 651 (the Act). In Item 1, Citation 1, the Secretary 
 

 

 

 

 

 

 

 

 

alleges Americold failed to designate separate lanes of travel for pedestrians and PIV in violation 

of 29 C.F.R. § 1910.176(a). In Item 2, Citation 1, the Secretary alleges Americold allowed an 

untrained employee to operate a PIV in violation of 29 C.F.R. §1910.178(l)(1)(ii). The Secretary 

proposes a penalty of $24,240 for the two alleged violations. 

Americold timely contested the citation bringing the matter before the Occupational 

Safety and Health Review Commission pursuant to § 10(c) of the Act. The court held a on April 

14, 2023, in Savannah, Georgia, under the Commission’s Simplified Proceedings. 29 C.F.R. 

§2900.200. The parties filed post-hearing briefs on June 5, 2023.1 

For the reasons discussed below, Item 1, Citation 1, alleging a violation of 29 C.F.R. § 

1910.176(a) and Item 2, Citation 1, alleging a violation of 29 C.F.R. § 1910.178(l)(1)(ii) are 

vacated. 

JURISDICTION 

Jurisdiction of this action is conferred upon the Commission pursuant to § 10(c) of the 

Act. The parties stipulated that at all times relevant to this action, Americold was an employer 

engaged in a business affecting interstate commerce within the meaning of § 3(5) of the Act, 29 

U.S.C. § 652(5). Based upon the stipulations and the record as a whole, the court finds 

Americold is an employer covered under the Act. 

BACKGROUND 

The Savannah 2 Facility and Its Operations 

Savannah 2 is one of many Americold facilities. Exhibit R-5 depicts the floorplan of that 

facility. It comprises 36 loading bays with doors2 that open to the interior loading dock; three 

freezers; a “deslat” room; and a blast freezer. Americold temporarily stores product and performs 

various operations on the loading dock, which is a large open area. In the three freezers using a 

racking system, Americold stores product waiting to be shipped out. 

Americold operates two shifts at Savannah 2. Each shift has four floor supervisors (Tr. 

240). Each supervisor is responsible for a team. Teams consist of PIV operators and laborers. 

Americold uses three types of PIV at Savannah 2. Fork trucks3

, also called dock trucks, are used 

1 To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed 

abandoned. 

2 See Ex. R-6 at p. 16 and video clip 023. 

3 A fork truck is depicted in Ex. P-7 at p. 13. A fork truck in operation can be seen in Ex. R-6 at video clip 024. 

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to load and unload product and move it around the facility. Fork trucks with blast cabs4 are used 

in the blast freezer to move product. And reach trucks5 are used to stack and remove product 

from the racking systems in the freezers.6 

Lamar Church, a former floor supervisor at Savannah 2, testified about how work is 

performed at that facility. Americold receives fresh and frozen product from various domestic 

and international sources. Tractor trailers containing product are unloaded at the loading dock 

doors using fork trucks (Tr. 129). Product is stacked on the loading dock floor to be checked 

against the manifest (Tr. 132). If the product is fresh, laborers next restack the product placing 

spacers or “slats” between the layers of product to allow for airflow during the blast freezing 

process. A PIV operator then moves that product into the blast freezer where it is flash frozen 

(Tr. 133). Once the product is frozen, laborers remove the slats and restack the product on pallets 

after which PIV operators move it to the freezers. Previously frozen product brought into the 

facility is unloaded, checked against the manifest, and moved directly into the freezers (Tr. 134). 

Certain product brought into Savannah 2 must be inspected by the U.S. Department of 

Agriculture, U.S. Customs and Border Patrol, or the U.S. Food and Drug Administration before 

Americold moves it to storage in the freezers (Tr. 136, 146). According to Supervisor Church, 

each inspector has a specific product arrangement he or she prefers for inspection (Tr. 139). 

Product remains on the loading dock floor until it is inspected and stamped as having passed 

inspection. Product that does not pass inspection must be moved to a segregated area for 

investigation where it remains until the issue preventing its approval is resolved (Tr. 144). 

Product awaiting shipment out of Savannah 2 goes through a reverse process. Warehouse 

employees bring product that has been ordered out of the freezer and stage it on the loading dock 

floor (Tr. 156). Laborers verify the order and fork truck operators load the product onto tractor 

trailers via the loading dock doors (Tr. 156). 

Supervisor Church described the loading dock as an ever-changing environment. The 

amount of product in the loading dock changes daily and cannot be accurately predicted (Tr. 

4 A fork truck with blast cab is shown in Ex. P-7 at p. 9. 

5 Reach trucks are shown in Ex’s. P-7 at pp. 2, 5, 22, and 23; and R-6 pp. 12, 13, and at video clips 020, 023, and 

025. 

6 Ex. R-6 at video clip 022 contains footage of the interior of one of the freezers. See also Ex. P-7 at p. 25. 

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162-63, 229). For that reason, Americold has no designated storage areas or paths for PIV or 

pedestrian travel on the loading dock floor (Tr. 161). 

PIV Training and Safety at Savannah 2 

Among his duties while at Savannah 2, Supervisor Church conducted new employee and 

PIV operator training. He testified to Americold’s training procedures for PIV operators. The 

training comprises three parts. First, new operators are shown a 30-minute video created by 

Raymond, the manufacturer of the PIV in use at the facility, addressing various operating and 

safety topics (Ex. R-2; Tr. 188). Next, they attend a class conducted by an Americold supervisor, 

who presents a 76-slid Power Point presentation on PIV operation and safety (Ex. R-1; Tr. 189). 

Lastly, they receive hands-on training and take a proficiency test (Tr. 189, 198; Ex. R-3). 

Operators also receive two weeks of “shadowing” another PIV operator (Tr. 213). According to 

the Power Point presentation, operators must undergo recertification every three years and 

refresher training annually or if involved in an accident or seen operating a PIV unsafely (Ex. R1 at pp. 10-12). 

Americold has procedures and rules applicable to PIV use. To ensure only certified 

personnel are able to operate a PIV, Americold has installed software on the vehicles referred to 

as the “Telematics System.” (Tr. 199) The system requires an employee to have an ID badge 

indicating certification to operate the PIV which he or she must swipe before starting the vehicle 

(Tr. 199). The system also requires operators to complete a vehicle inspection check list before 

the vehicle will start (Tr. 199). If the vehicle does not pass the inspection, it is taken out of 

service (Tr. 241). PIV at Savannah 2 also have speed governors that limit vehicle speed to five 

miles per hour (Tr. 195). Americold instructs operators to slow down and sound their horn when 

approaching pedestrians and that pedestrians have the right-of-way (Tr. 196; Ex. R-1 at pp. 35, 

40). 

Floor supervisors spend most of their day on the loading dock floor (Tr. 213). They are 

responsible for conducting three “behavior-based safety observations” per day (Tr. 206). To 

conduct a behavior-based safety observation the floor supervisor observes an employee 

conducting his assigned work for 30 minutes. The supervisor then coaches the employee on what 

he observed (Tr. 207).7 Americold also requires its floor supervisors to conduct “coaching 

7 Ex. R-7 contains the reports of the behavior-based safety observations Americold maintains. 

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method observations” twice per day (Tr. 212). To conduct a coaching method observation the 

floor supervisor is required to observe an employee performing certain job skills (Tr. 212). 

Americold has a disciplinary program that includes termination for serious safety rule 

violations (Tr. 201; Ex. R-8). A supervisor who observes an employee violating a serious safety 

rule may request that employee’s immediate termination (Tr. 202-03; Ex. R-9). The request is 

reviewed by a safety panel which determines the final outcome for the employee (Ex. R-8). 

The OSHA Investigation 

On July 7, 2022, OSHA’s Savannah Area Office received notification of an accident at 

Savannah 2 that resulted in an employee seriously injuring his ankle (Tr. 25-26; Ex’s. P-1 and P2). According to the report received by OSHA, an employee who was driving a fork truck and 

making a left turn, stuck out his foot and caught it between a bollard and the truck, injuring his 

ankle (Ex. P-2 at p.2). OSHA assigned Compliance Safety and Health Officer (CSHO) Taylor 

Rumsey to investigate the accident (Tr. 29). 

CSHO Rumsey performed a walk around inspection of the facility after holding an 

opening conference with Americold management (Tr. 31). During her inspection, CSHO 

Rumsey observed pedestrians and PIV operating in the same space (Tr. 32; Ex’s. P-7 and P-9). 

She observed only one designated pedestrian walkway (Tr. 64). She testified she observed PIV 

driving with loads close to pedestrians and that she had to step out of the way of PIV during her 

walk around with management (Tr. 43-44). CSHO Rumsey went to the facility a second time in 

October 2022 and observed the same conditions (Tr. 33-35). On this visit, she also interviewed 

employees and Supervisor Church (Tr. 33, 84; Ex. P-16). She had previously interviewed the 

injured employee in September of 2022 (Tr. 87). 

Based upon her observation of PIV traveling in proximity to pedestrians and the lack of 

designated walkways or aisles, CSHO Rumsey recommended the Secretary issue Americold a 

citation for an alleged violation of § 1910.176(a). Based upon her finding the injured employee 

had not been trained and certified to operate the PIV involved in the accident, CSHO Rumsey 

recommended the Secretary issue Americold a citation alleging a violation of 

§1910.178(l)(1)(ii). The Secretary issued the proposed citation and Americold timely contested. 

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DISCUSSION 

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

of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the 

terms of the cited standard; (3) employees had access to the violative condition; and (4) the cited 

employer either knew or could have known with the exercise of reasonable diligence of the 

violative condition. JPC Group, Inc., No. 05-1907, 2009 WL 2567337 (OSHRC Aug. 11, 2009). 

Both citation items allege a violation of standards falling under Subpart N, Material 

Handling and Storage and both address the use of PIV in Americold’s Savannah 2 facility. It is 

undisputed Americold operates several types of PIV at that facility and both alleged violations 

address the use of those PIV. Americold does not dispute the applicability of the cited standards 

to the equipment it uses at its facility or to the facility itself. Based upon the record, the sited 

standards apply. 

Item 1, Citation 1: Alleged Violation of 29 C.F.R. § 1910.176(a) 

In Item 1, Citation 1, the Secretary alleges Americold violated the standard at § 

1910.176(a) when it failed to ensure pedestrian traffic within the facility was protected from 

being struck by PIV by “having designated lanes of travel, free from pedestrian traffic.” The 

standard states: 

Use of mechanical equipment. Where mechanical handling equipment is used, 

sufficient safe clearances shall be allowed for aisles, at loading docks, through 

doorways and wherever turns or passage must be made. Aisles and passageways 

shall be kept clear and in good repair, with no obstruction across or in aisles that 

could create a hazard. Permanent aisles and passageways shall be appropriately 

marked. 

The Secretary alleges Americold violated the standard at its Savannah 2 facility because 

it “failed to ensure employees working throughout the building were protected from powered 

industrial truck traffic by having designated lanes of travel, free from pedestrian traffic.” 

(Citation p. 6) The Secretary contends the standard requires “safe passage via permanent 

aisleways or passageways” and that Americold’s failure to have “permanent passageway for 

pedestrians or powered industrial trucks” violated that requirement (Tr. 42, 45). Americold 

argues the standard does not require what the Secretary contends; the standard cannot be 

reasonably read to require the separation of pedestrian and PIV traffic by designated aisles. The 

court agrees with Americold. 

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Section 1910.176(a)(1) is contained in Subpart N of Title 29. It was promulgated 

pursuant to § 6(a) of the Act which authorized the Secretary to adopt existing national consensus 

standards without resort to formal rulemaking procedures. 29 U.S.C. § 655(a). In addition to its 

limited history, there is little binding precedent interpreting the requirements of § 1910.176(a) 

and no cases specifically addressing whether the standard requires an employer using PIV to 

create “safe passage via permanent aisleways or passageways” or designate separate lanes of 

travel for pedestrians and PIV. The issue is a novel one requiring the court to apply Commission 

precedent on standard interpretation. 

When determining the meaning of a standard, the Commission first looks to its 

text and structure. If the wording is unambiguous, the plain language of the 

standard will govern, even if the Secretary posits a different interpretation. Both 

the courts and the Commission have rejected the Secretary’s interpretation of a 

standard when it strains the plain meaning of the regulatory text. 

Jesco, Inc., No. 10-0265, 2010 WL 9448085, at *2 (OSHRC Mar. 26, 2013) (citations omitted). 

The Secretary’s interpretation of the standard’s requirements strains the plain meaning of 

the text. The standard addresses “safe clearances” wherever passage must be made. The 

dictionary definition of the term “clearance” is the “distance by which one object clears another.” 

Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/clearance (last 

visited July 26, 2023). To be “safe” is to be “free from harm.” Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/safe (last visited July 26, 2023). The standard, by 

its terms, requires the employer to ensure space sufficient for safe passage wherever PIV are 

used, such as in aisles. Although the standard requires the employer to provide aisles wide 

enough for safe clearance, and to ensure those aisles are not obstructed, it does not require the 

employer to designate or demarcate aisles. The standard also requires appropriate markings for 

aisles but only those reasonably found to be permanent. Nowhere in the standard is there 

language requiring the creation or designation of separate aisles, pathways, or lanes of travel for 

PIV. 

The Secretary did not identify language in the text supporting her interpretation. Rather, 

the Secretary relies on the Administrative Law Judge’s holding in Heat Transfer Products, LLC., 

No. 16-0289, 2016 WL 5312071 (OSHRC Sept. 1, 2016) (ALJ). The ALJ’s holding in that case 

does not support the Secretary’s position. In Heat Transfer Products, the employer had 

demarcated separate aisles for pedestrians and PIV in a storage area of a large manufacturing 

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facility using lines painted on the floor. The separate aisles for PIV and pedestrians had been in 

place for many years and the markings had deteriorated and faded over time. The issue before 

the court was whether the condition of the painted lines met the requirement that permanent 

aisles be “appropriately marked.” The ALJ never addressed whether the standard required the 

creation of separate aisles because the employer had already created them, triggering the 

requirement for appropriate markings. Here Americold has not created separate permanent aisles 

such that the requirement for markings would apply. 

The Commission’s decision in General Electric Co., No. 2739, 1975 WL 5142 (OSHRC 

Apr. 21, 1975)8, which does discuss the need for aisles where PIV operate, provides no more 

support for the Secretary’s position. In that case, the Commission affirmed a violation of § 

1910.176(a) where the employer had randomly stored pallets and other materials in an area used 

by PIV and that employees passed through to service boilers. Id. at *16. Although the 

Commission referred to the employer’s obligation to create aisles for travel, its focus was on the 

impediment to egress in case of emergency created by the lack of aisles. The Commission found 

the employer in violation of the standard because there was insufficient space to allow safe 

passage. The Commission found, in the terms of the standard, a requirement to create aisles 

where necessary to ensure “safe clearance.” The decision cannot be fairly read to require the 

creation and demarcation of aisles where there is no allegation of a lack of sufficient space for 

safe clearance or obstructions creating a hazard. Where, as here, the Secretary has neither alleged 

nor established a lack of space sufficient for safe clearance, the holding in General Electric is 

inapposite. 

The video and photographic evidence depicting Americold’s Savannah 2 facility show an 

environment in which large PIV move about in the same space as laborers on foot. The Secretary 

contends to ensure employee safety in such an environment an employer must institute traffic 

controls in the form of permanent, demarcated aisles for PIV and pedestrians.9 In so contending, 

the Secretary relies on the goal of the Act to ensure safe workplaces. Although a laudatory goal, 

the question before the court is not how to make Americold’s worksite safer. The question before 

the court is whether the cited standard requires the safety measures the Secretary contends. The 

8 On appeal, the 2nd Circuit overturned a portion of the Commission decision but did not address the violation of § 

1910.176(a). 540 F.2d 67 (2nd Cir. 1978). 

9 Americold contends its practices and procedures addressing PIV safety are sufficient to protect employees. Given 

the court’s holding, it need not resolve this dispute. 

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Secretary asks the court to read into the standard an obligation to create and designate 

permanent, separate aisles for travel of PIV and pedestrians absent a showing of insufficient 

space for safe clearance or obstructions to safe passage. The standard’s plain meaning does not 

support such a reading. 

Item 1, Citation 1, is vacated. 

Item 2, Citation 1: Alleged Violation of 29 C.F.R. § 1910.178(l)(1)(ii) 

The Secretary alleges Americold violated § 1910.178(l)(1)(ii) by allowing an untrained 

person to operate a PIV. The alleged violation relates specifically to the use of the PIV by the 

injured employee on July 7, 2022. The Standard requires an employer to “ensure that each 

operator has successfully completed the training required by this paragraph” prior to being 

permitted to operate a PIV. 

Americold’s training records establish the injured employee had not completed its 

training program and Americold does not dispute he was neither trained nor authorized to 

operate the PIV on July 7, 2022 (Ex. P-12; Tr. 75). The record establishes the injured employee 

was exposed to the hazards associated with untrained use of a PIV. While operating the PIV, the 

employee was severely injured when he drove too close to a bollard (Tr. 28). The Secretary 

established the first three elements of the alleged violation. 

The element of the alleged violation in dispute is whether Americold had knowledge of 

the violative condition. To establish employer knowledge of a violation the Secretary must show 

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

hazardous condition. Dun Par Engineered Form Co., No. 82-0928, 1986 WL 53522, at *4 

(OSHRC July 30, 1986). Because corporate employers can only obtain knowledge through their 

agents, the actions and knowledge of supervisory personnel are generally imputed to their 

employers, and the Secretary can make a prima facie showing of knowledge by proving a 

supervisory employee knew of or was responsible for the violation. Todd Shipyards Corp., No. 

77-1598, 1984 WL 34912, at *4-5 (OSHRC Aug. 3, 1984); see also Dun Par, 1986 WL 53527, 

at *4 (the actual or constructive knowledge of an employer’s foreman can be imputed to the 

employer); S. Pan Servs. v. U.S. Dep’t. of Labor, 685 F. App’x 692, 698 (11th Cir. 2017) 

(unpublished). 

The record is insufficient to meet the Secretary’s burden to establish Americold had 

actual knowledge of the violation. In other words, there is insufficient evidence any supervisory 

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employee of Americold was aware the injured employee had accessed the PIV. The injured 

employee did not testify, and the Secretary presented only CSHO Rumsey’s recollection10 of 

what was stated to her in an interview to establish how the injured employee accessed the PIV. 

Her testimony was as follows: 

Q: Did he explain to you how he was about to get – how he was able to 

operate the powered industrial trucks? 

A: Yes. Another powered industrial truck driver badged through the 

telematics system for [the injured employee]. When [the injured employee] was 

answering the safety questions, one of the safety questions was failed; therefore, a 

supervisor had to use a badge in order to bypass the system. 

(Tr. 88). Left unanswered is the question of why the injured employee was operating a PIV he 

was neither trained nor authorized to use. Although it is undisputed the injured employee would 

have had to use another employee’s ID badge to start the PIV, that other employee was never 

identified. The injured employee told CSHO Rumsey a supervisor had to override the system, 

but the record does not establish the identity of that supervisor. Nor does the record establish 

whether or how a supervisor is able to override the system. Given this paucity of detail, the court 

finds CSHO Rumsey’s testimony insufficient to meet the Secretary’s burden.11 

The Secretary argues Americold knew of the unauthorized use of the PIV because floor 

supervisors were present on the loading dock throughout the shift. Although the record 

establishes floor supervisors are generally present on the loading dock, the Secretary did not 

establish any supervisor was in a position to observe the specific incident alleged in the citation. 

Equally vague and unpersuasive is CSHO Rumsey’s reference in her Violation Worksheet (Ex. 

P-10) which states unnamed employees informed her that two supervisors had observed 

unauthorized employees using PIV. As a result, the Secretary has failed to establish Americold 

had actual knowledge of the violative condition. 

Although the Secretary failed to establish Americold had actual knowledge of the 

violation, the Secretary can still meet her burden if she establishes Americold had constructive 

10 The record does not contain documentation of the interview. 

11 The undersigned found CSHO Rumsey a credible witness based on her demeanor and candid testimony. Despite 

this finding, the court gives CSHO Rumsey’s testimony regarding the injured employee’s statement to her no weight 

because the Secretary presented insufficient evidence upon which the undersigned can find the inured employee’s 

statement credible. The injured employee would have an interest in establishing Americold management condoned 

the practice of allowing untrained employees to operate PIV and the record contains no evidence corroborating the 

injured employee’s statement. 

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knowledge of the violation.12 Constructive knowledge is shown where the Secretary establishes 

the employer could have known of the cited condition with the exercise of reasonable diligence. 

Par Electrical Contractors, Inc., No. 99-1520, 2004 WL 334488, at *3 (OSHRC Feb. 19, 2004). 

Whether an employer was reasonably diligent involves a consideration of several 

factors, including the employer’s obligation to have adequate work rules and 

training programs, to adequately supervise employees, to anticipate hazards to 

which employees may be exposed, and to take measures to prevent the occurrence 

of violations. 

Id. citing Precision Concrete Constr., No. 99-707, 2001 WL 422968, at *4 (OSHRC Apr. 25, 

2001). “Reasonable diligence implies effort, attention, and action; not mere reliance upon the 

action of another.” N &N Contractors, Inc., No. 96-0606, 2000 WL 665599, at *4 (OSHRC 

May 18, 2000), aff’d, 255 F.3d 122 (4th Cir. 2001). The Commission has held that “[r]easonable 

steps to monitor compliance with safety requirements are part of an effective safety program.” 

Sw. Bell Tel. Co., No. 98-1748, 2000 WL 1424806, at *3 (OSHRC September 27, 2000) 

(citations omitted), aff’d without published opinion, 277 F.3d 1374 (5th Cir. 2001). 

There is no dispute Americold trained and certified its PIV operators. Americold 

contends it only allows certified operators to use PIV at its facility. It has a written rule 

prohibiting unauthorized use of PIV which is included in the training provided to all employees 

(Ex’s. R-1 at pp. 4-5; R-8 at p. 4). Americold controls the use of PIV through its telematics 

system which requires an employee to have an ID badge showing training and certification. Any 

employee who is not certified cannot start a PIV using his own ID badge. An employee also 

cannot start a PIV until he has performed a safety inspection of the vehicle. Americold concedes 

an authorized employee can use his card to give an unauthorized employee access to a PIV but 

did not admit to being aware of any other similar instances and the Secretary identified none. 

In addition to training and certifying its PIV operators, Americold “took reasonable steps 

to monitor compliance with safety requirements.” Sw. Bell, 2000 WL 1424806, at *3. 

Americold’s management system includes two forms of routine, documented, monitoring of 

employee safety and performance. As noted above, floor supervisors conduct three “behaviorbased safety observations” per day which is followed by coaching (Tr. 206-07). These 

observations and coaching are documented (Ex. R-7). Behavior observed by supervisors includes 

12 The Secretary did not argue Americold had constructive knowledge of the violation and presented no evidence in 

her case in chief in support of such an argument. Nevertheless, to ensure a complete and fair decision, the court will 

analyze whether the record as a whole supports a finding of constructive knowledge. 

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--

PIV safety. Americold also requires its floor supervisors to conduct “coaching method 

observations” twice per day (Tr. 212). Where safety violations are observed, Americold 

disciplines employees under its “Serious Safety Rule Violation Policy” (Ex. R-8). Americold 

established that in the six months preceding the accident, it had terminated three employees for 

rule violations related to PIV operation (Ex. R-9). The Secretary has failed to establish 

Americold did not exercise reasonable diligence to ensure only trained individuals operate PIV at 

its facility. 

Because the Secretary failed to establish Americold knew or could have known of the 

cited condition, the violation of § 1910.178(l)(1)(ii) alleged in Item 2 is vacated. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a). 

ORDER 

Based on the foregoing decision, it is hereby ORDERED: 

Items 1 and 2, Citation 1, are VACATED. 

SO ORDERED. 

/s/___________________________ 

Heather A. Joys 

Dated: August 22, 2023 Administrative Law Judge, OSHRC 

Atlanta, GA 

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