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. 10-1697 

SPIRIT AEROSYSTEMS, INC., 

Respondent,

INTERNATIONAL UNION, UNITED 

AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT 

WORKERS OF AMERICA (UAW LOCAL 

952), 

Authorized Employee 

Representative.

ON BRIEFS:

Edmund C. Baird, 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 

Mary L. Lohrke, Esq.; Kimberly L. Love, Esq.; James M. Love, Esq.; Titus Hillis Reynolds 

Love Dickman & McCalmon, P.C., Tulsa, Oklahoma 

For the Respondent 

 Stephen A. Yokich, Esq.; Cornfield and Feldman, Chicago, Illinois

For International Union, United Automobile, Aerospace and Agricultural 

Implement Workers of America (UAW Local 952), Authorized Employee 

Representative 

DECISION AND REMAND

Before: ROGERS, Chairman; ATTWOOD and MACDOUGALL, Commissioners.

BY THE COMMISSION:

In response to an employee fatality, the Occupational Safety and Health Administration 

inspected a facility in Tulsa, Oklahoma, owned and operated by Spirit AeroSystems, Inc. OSHA 
issued Spirit a serious citation under the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§§ 651-678, alleging that the company violated a provision of the general industry lockout/tagout 

(“LOTO”) standard, and proposing a penalty of $7,000. The cited provision states that 

“[p]rocedures shall be developed, documented and utilized for the control of potentially 

hazardous energy when employees are engaged in the activities covered by this section.”1 29 

C.F.R. § 1910.147(c)(4)(i). 

During the hearing and at the conclusion of the Secretary’s case-in-chief, Administrative 

Law Judge Patrick B. Augustine granted Spirit’s motion for judgment on partial findings, and 

accordingly vacated the citation. Because we find that the Secretary presented a prima facie case 

of noncompliance with the cited standard, we set aside the judge’s decision and remand the case 

to him for further proceedings. 

BACKGROUND

Spirit designs and manufactures airplane components, and employs mechanics who 

perform routine minor servicing and maintenance on company-owned vehicles. On March 19, 

2010, one of these mechanics replaced an “air system valve fitting” on a Spirit-owned Sterling 

diesel truck. After replacing the air valve, the mechanic tried to start the engine, but it would not 

start because the transmission selector was in the drive position, and starter-system safety 

switches prevent the engine from starting unless the selector is in neutral. While standing on the 

ground within the engine compartment, positioned forward of the driver’s side front wheel of the 

truck, the mechanic then attempted to start the engine by short-circuiting the starter relay, which 

circumvented the safety switches. When he shorted the relay, the truck moved and struck him, 

resulting in his death. 

In the citation, the Secretary alleges that Spirit failed to “develop and document specific 

energy control procedures for employees who perform maintenance on vehicles.” At the 

hearing, the only witness the Secretary called during his case-in-chief was the compliance 

officer. After the Secretary rested, Spirit submitted a written motion to the judge for judgment 

1 The LOTO standard “covers the servicing and maintenance of machines and equipment in 

which the unexpected energization or start up of the machines or equipment, or release of stored 

energy could cause injury to employees[,]” and serves to “establish[] minimum performance 

requirements for the control of such hazardous energy.” 29 C.F.R. § 1910.147(a)(1)(i) (emphasis 

omitted); Lockout/Tagout Final Rule, 54 Fed. Reg. 36,644, 36,687 (Sept. 1, 1989).

2 

 
on partial findings under Federal Rule of Civil Procedure 52(c).2

 In its motion, Spirit argued that 

the Secretary had failed to establish a violation of § 1910.147(c)(4)(i) because he did not show 

that Spirit’s energy control procedure was incomplete. After brief oral argument from each 

party, the judge ruled from the bench, granting Spirit’s motion and vacating the citation. The 

Secretary subsequently filed a motion for reconsideration with the judge, and Spirit filed a brief 

in opposition. On November 7, 2011, the judge issued a written decision, denying the 

Secretary’s motion and confirming his dismissal of the citation. On review, the Secretary 

contends that he established a prima facie showing of noncompliance sufficient to survive 

Spirit’s Rule 52(c) motion, and that the judge’s decision vacating the citation was accordingly in 

error.

DISCUSSION

 The Commission has held that “[u]nless . . . evidence clearly preponderates against 

complainant, the Judge must either deny [a Rule 52] motion or defer disposition until the 

conclusion of respondent’s case.” Morgan & Culpepper, Inc., 5 BNA OSHC 1123, 1124-25, 

1977-78 CCH OSHD ¶ 21,605, p. 25,929 (No. 9850, 1977), aff’d in relevant part, 676 F.2d 1065 

(5th Cir. 1982). See also Harrington Constr. Corp., 4 BNA OSHC 1471, 1473, 1976-77 CCH 

OSHD ¶ 20,913, p. 25,110 (No. 9809, 1976) (“Except in unusually short, clear, and 

2

 Rule 52(c) provides that: 

If a party has been fully heard on an issue during a nonjury trial 

and the court finds against the party on that issue, the court may 

enter judgment against the party on a claim or defense that, under 

the controlling law, can be maintained or defeated only with a 

favorable finding on that issue. The court may, however, decline 

to render any judgment until the close of evidence. A judgment on 

partial findings must be supported by findings of fact and 

conclusions of law as required by rule 52(a). 

Although Spirit’s counsel identified the motion made at the hearing as a motion to dismiss, the 

judge characterized it as a motion for directed verdict. In subsequent pleadings, however, both 

parties refer to Spirit’s motion as a request for judgment on partial findings under Rule 52(c), but 

the judge cited Federal Rule of Civil Procedure 41(b) in his decision. Rule 52(c) governs 

motions to dismiss at a bench trial and was adopted in 1991 to supersede Rule 41(b). See FED. R.

CIV. P. 52 advisory committee’s notes (1991 Amendment). Thus, the case law developed under 

Rule 41(b) is now applicable under Rule 52(c). 9 CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE § 2573.1 at 253 (3d ed. 2008). 

3 

 
uncomplicated cases (as where the Secretary’s case is clearly inadequate) the Judge should carry 

the [Rule 52(c)] motion with the case . . . , await a renewed motion to dismiss and then enter a 

final order at the close of all the evidence.”) (citation omitted). Here, the judge granted Spirit’s 

Rule 52(c) motion because he found that: (1) certain vehicle maintenance manuals were

incorporated into Spirit’s written energy control procedure; and (2) the CO failed to review the

manuals, so she “did not know whether or not the procedures contained in those manuals 

complied with the cited regulation.” 

Spirit’s written energy control program, “SOI-304,” by its terms applies to “all 

organizations” and “all programs” at Spirit’s Tulsa, Oklahoma facility. Contained within the 

energy control program is a provision stating as follows: “A Machine Specific Energy Control 

Sheet shall be written, reviewed and maintained by persons with knowledge of the process for 

each machine, piece of equipment, and building system as well as knowledge of the principles of 

Lockout/Tagout.” SOI-304, Sections 11.0, 11.1 (emphasis added). Another provision of the 

program, titled “Procedure,” provides guidance to employees “performing servicing and 

maintenance or troubleshooting activities on [energized] equipment.” SOI-304, Section 4.0. It 

includes a directive to “Review Machine Specific Energy Control Sheet and identify all energy 

sources.” SOI-304, Section 4.3.5, Step 4. However, despite SOI-304’s reliance on machine 

specific energy control sheets as the centerpiece of Spirit’s LOTO procedure, it is undisputed 

that no documents explicitly identified as machine specific energy control sheets existed for 

service and maintenance of Spirit’s vehicles, including the Sterling truck. Spirit points, instead, 

to the manufacturers’ vehicle maintenance manuals for its trucks, contending that the manuals

are the required energy control sheets. Spirit claims that these manuals are incorporated by 

reference into SOI-304 and that they, in conjunction with the rest of SOI-304, constitute Spirit’s 

energy control procedure for vehicle maintenance. The portion of SOI-304 that Spirit claims 

incorporates the vehicle maintenance manuals is a “Note” appended to the provision requiring 

review of the machine specific energy control sheets. It states as follows: 

4.3 Steps for Lockout/Tagout of All Systems 

* * * 

4.3.5 Step 4 – Review Machine Specific Energy Control

 Sheet and identify all energy sources.

4 
Note Refer to maintenance manual or contact 

supervision if unsure of energy routing, how to 

attain zero energy state or moving part isolation. 

The judge found—without explanation—that SOI-304 “explicitly incorporated” the 

manuals.

3

 On review, the Secretary argues that this was error because the Note—the only part of 

Spirit’s energy control procedure that refers to the manuals—does not actually require Spirit’s 

employees to consult them. According to the Secretary, even if it is assumed that LOTOcompliant procedures for Spirit’s vehicles can be found in these manuals,4 SOI-304’s direction 

that employees “[r]efer to maintenance manual or contact supervision if unsure” renders the 

procedure non-mandatory. (Emphasis added.) The Secretary argues that because the language is 

non-mandatory, it is insufficient under the LOTO standard to incorporate the manuals, and he 

therefore made a prima facie showing of noncompliance.5

 

We agree with the Secretary that SOI-304 does not incorporate the vehicle maintenance 

manuals. The wording of SOI-304, Section 4.3.5, Step 4 is clear, and requires only two things: 

that employees review machine specific energy control sheets, and that they identify all energy 

3 When the judge asked the CO if she was aware that specific vehicle maintenance manuals were 

incorporated into Spirit’s LOTO procedure, she responded: “I see that it says that in—in this 

program, yes” (referring to SOI-304). Spirit argues, as it did before the judge, that this testimony 

constituted an “admission” by the CO that the manuals in question were incorporated into 

Spirit’s procedure. We find that the CO simply acknowledged, in response to the judge’s 

question, that she could “see” that the text of SOI-304 references the manuals—but that she was 

not offering an opinion as to the text’s legal significance. Even if the CO’s testimony were

construed as agreeing that the manuals were incorporated, “the Commission is not bound by the 

representations or interpretations of OSHA Compliance Officers.” Kaspar Wire Works, Inc., 268 

F.3d 1123, 1128 (D.C. Cir. 2001); see also L.R. Wilson & Sons, Inc. v. Donovan, 685 F.2d 664, 

676 (D.C. Cir. 1982); W. Steel Mfg. Co., 4 BNA OSHC 1640, 1643, 1976-77 CCH OSHD 

¶ 21,054, pp. 25,341-42 (No. 3528, 1976). 

4 Only certain portions of the manuals are in evidence. 

5 In her dissent, our colleague appears to raise a question regarding whether the manualincorporation issue requires a legal or factual determination. Whether and to what extent 

material has been incorporated into a host document is a question of law, and therefore 

constitutes a legal determination about which the CO was incapable of testifying. See Advanced 

Display Systems, Inc. v. Kent State Univ., 212 F.3d 1272, 1283 (Fed. Cir. 2000). The only “fact” 

in this case that bears on whether the manuals are part of Spirit’s LOTO procedure is the 

wording of SOI-304’s incorporation provision. But there is no dispute as to its text. What is in 

dispute is the legal effect of its wording, i.e., whether it is legally sufficient to incorporate the 

manuals. 

5 

 
sources. Yet, as indicated above, it is undisputed that nothing explicitly identified as a “Machine 

Specific Energy Control Sheet” existed for Spirit’s vehicles. As for the advisory “Note” to Step 

4, suggesting reference to “maintenance manuals” or “contact[ing] supervision” if unsure of 

certain aspects of LOTO, it is neither specific to vehicles (which, as the dissent concedes, are not 

mentioned), nor does it purport to supplant the requirement to review machine specific energy 

control sheets. Indeed, treating the words “machine specific energy control sheets” in Step 4 and 

“maintenance manuals” in the Note as if they were interchangeable would overlook the fact that

each reference, on its face, is to a separate document. In addition, equating “manuals” with 

“machine specific energy control sheets” ignores the “contact supervision” option included in the 

same Note. Clearly that option has nothing to do with manuals and cannot be equated with 

“machine specific energy control sheets.” In these circumstances, based on the plain wording of 

SOI-304, Section 4.3.5, Step 4 in its entirety, Spirit’s contention that its maintenance manuals 

constituted machine specific energy control sheets is untenable. 

However, even assuming the vehicle manuals could be considered energy control sheets, 

we agree with the Secretary that the advisory Note in which the manuals are mentioned is 

discretionary and, therefore, use of the manuals would be impermissibly optional. As the 

Commission has already determined, work rules “that give too much discretion in identifying 

unsafe conditions [are] too general to be effective.” Superior Custom Cabinet Co., 18 BNA 

OSHC 1019, 1021, 1995-97 CCH OSHD ¶ 31,422, p. 44, 416 (No. 94-200, 1997). That OSHA

particularly intended to preclude reliance on such discretion in the LOTO standard is evident 

both from the language of the standard and its preamble. The cited provision states that energy 

control procedures must not only be developed and documented—they must be utilized. 29 

C.F.R. § 1910.147(c)(4)(i). In the preamble to the standard, OSHA “specifie[d] that the 

employer ensure that the control measures are used by employees whenever they might be 

exposed to injury from the unexpected energization or start up of machines or equipment or the 

release of stored energy.” Lockout/Tagout Final Rule, 54 Fed. Reg. at 36,670. As OSHA 

explained: 

The development and documentation of energy control procedures 

is of little use unless the employer requires all authorized 

employees to utilize the procedures that have been provided

whenever they are servicing or maintaining machines or 

equipment. . . . [T]he employer [must] ensure that hazardous 

6 
energy control procedures have been implemented . . . and are 

being complied with by the employees. 

Id. at 36,667 (emphasis added). 

Allowing an employee the discretion to either forego consulting the manuals, or to 

consult a supervisor in lieu of the manuals, renders whatever procedures the manuals contain 

non-mandatory, which contravenes the purpose of the LOTO standard. In addition, construing 

the cited LOTO provision to allow employees such discretion would effectively nullify the 

LOTO standard’s additional requirement to “specifically outline the . . . techniques to be utilized 

for the control of hazardous energy,” since such specificity would be pointless if procedures are 

not mandatory. 29 C.F.R. § 1910.147(c)(4)(ii) (emphasis added).

6

 U.S. Nat’l Bank of Oregon v. 

Indep. Ins. Agents, 508 U.S. 439, 454-55 (1993) (“Over and over we have stressed that ‘[i]n 

expounding a statute, we must not be guided by a single sentence or member of a sentence, but 

look to the provisions of the whole law, and to its object and policy.’ ”) (citations omitted). See

also Custom Built Marine Constr., Inc., 23 BNA OSHC 2237, 2239, 2013 CCH OSHD ¶ 33,258, 

p. 56,311 (No. 11-0977, 2012) (citing Am. Fed’n of Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 

737, 740 (D.C. Cir. 1986)) (“[R]egulations are to be read as a whole, with each part or 

section . . . construed in connection with every other part or section”) (internal quotation marks 

and citation omitted); E. Smalis Painting Co., Inc., 22 BNA OSHC 1553, 1580-81, 2011 CCH 

OSHD ¶ 33,150, p. 55,335 (No. 94-1979, 2009) (interpreting cited provision in context of entire 

6 The dissent takes issue with our determination that the discretion afforded under Spirit’s LOTO 

procedure undermines Spirit’s contention that the manuals are incorporated. First, our colleague 

claims that the Secretary did not challenge the incorporation language on this basis below, and 

thus this issue is not before us on review. But this is not so. At the hearing, in his oral argument 

opposing Spirit’s Rule 52(c) motion, the Secretary noted that the incorporation language was 

defective because it permitted employees to “refer to the maintenance manual or contact 

supervision.” Subsequently, in his motion to the judge for reconsideration, the Secretary 

specifically argued that Spirit’s procedures are deficient because the incorporation provision is 

“[not] mandatory. . . . Instead it is ambiguous and discretionary.” Second, our colleague states 

that the Secretary cited Spirit only for failing to “develop and document” LOTO procedures, 

whereas our rationale implicates an additional, uncited requirement that they be “utilized.” 

However, the citation is not based on a failure to utilize compliant LOTO procedures—it is based 

on the fact that the procedures themselves are defective and, therefore, noncompliant. Proof of 

utilization of SOI-304 would not have abated the cited condition because the employees would 

have been permitted to exercise discretion, and it is that discretion which, as the Secretary has 

alleged, renders SOI-304 noncompliant.

7 

 
standard and its overall purpose); accord 2A Norman J. Singer, Statutes and Statutory 

Construction § 46:5 (7th ed. 2014) (“A statute is passed as a whole and not in parts or sections 

and is animated by one general purpose and intent. Consequently, each part or section should be 

construed in connection with every other part or section to produce a harmonious whole. Thus it 

is not proper to confine interpretation to the one section to be construed.”) (emphasis added) 

(footnotes omitted). And in the citation at issue here, the Secretary explicitly alleged that Spirit 

“failed to develop and document specific energy control procedures,” and elicited testimony that 

Spirit’s procedures were deficient due to a lack of specificity in a number of respects. (Emphasis 

added.)7

 In these circumstances, we find that based on the language of SOI-304, Section 4.3.5, 

Step 4, the manuals were not incorporated into Spirit’s energy control procedure. 

 Absent the manuals’ incorporation, we find that the Secretary has made out a prima facie 

case that SOI-304 lacks specific energy control procedures for vehicle maintenance. Although 

we recognize that the preamble to the LOTO standard provides that a single procedure “can 

apply to a group of similar machines, types of energy[,] and tasks” if it satisfactorily addresses

the hazards and steps to be taken, Lockout/Tagout Final Rule, 54 Fed. Reg. at 36,670, the 

standard also “requires the lockout procedures for each type of machine to be specifically 

defined, and [where] there are different types of machines at the plant, [an employer] must have 

7 In her dissent, our colleague appears to imply that the Secretary cited Spirit under the wrong 

provision of the LOTO standard. She asserts that had the Secretary intended to fault Spirit for a 

lack of specificity in its LOTO procedure, he should have cited § 1910.147(c)(4)(ii), which

prescribes the degree of specificity required under the LOTO standard. The dissent also claims

that had the Secretary done so, the cited provision, § 1910.147(c)(4)(i), would have been 

preempted. See 29 C.F.R. § 1910.5(c). But this is the dissent’s argument, not Spirit’s. Spirit 

never claimed that the Secretary cited the wrong standard and it did not make any preemption 

argument. Under Commission precedent, preemption by a more specifically applicable standard 

is an affirmative defense which the respondent must raise in its answer. 29 C.F.R. 

§ 1910.5(c)(1); see Commission Rules 34(b)(3) and (4), 29 C.F.R. § 2200.34(b)(3) and (4);

Safeway, Inc. v. OSHRC, 382 F.3d 1189, 1194 (10th Cir. 2004); Vicon Corp., 10 BNA OSHC 

1153, 1157, 1981 CCH OSHD ¶ 25,749, p. 32,159 (No. 78-2923, 1981) (describing a claim that 

a general standard was preempted by a more specific standard as an affirmative defense). Here, 

despite the Secretary’s reference in the citation to a lack of specificity and similar testimony 

elicited at the hearing, Spirit neither raised this issue as a defense in its answer nor sought to 

amend its answer to add it. Therefore, we find that the argument was waived. See Gen’l Motors 

Corp., Chevrolet Motor Div., 10 BNA OSHC 1293, 1296-97, 1982 CCH OSHD ¶ 25,872, p. 

32,361 (No. 76-5344, 1982). 

8 

 
more than one lockout procedure.” Drexel Chem. Co., 17 BNA OSHC 1908, 1913, 1995-97 

CCH OSHD ¶ 31,260, p. 43,876 (No. 94-1460, 1997). Because SOI-304 does not contain any 

procedures specific to vehicle maintenance, the Secretary has met his prima facie burden to show 

that it does not comply with the cited standard with respect to the factual circumstances at issue 

in this case. 

In light of the foregoing, we conclude that the Secretary presented a prima facie case of 

noncompliance with § 1910.147(c)(4)(i), and that the judge therefore erred in granting Spirit’s 

Rule 52(c) motion and vacating the citation. Accordingly, we reverse the judge’s decision 

vacating the citation, order the citation reinstated, and remand this case for further proceedings to 

allow Spirit an opportunity to present evidence on its behalf, and the Secretary an opportunity for 

rebuttal.

SO ORDERED.

 /s/ 

 Thomasina V. Rogers 

 Chairman

 /s/ 

Cynthia L. Attwood 

Dated: December 24, 2014 Commissioner

9 
MACDOUGALL, Commissioner, dissenting. 

I respectfully dissent from my colleagues’ decision to remand this case to Judge 

Augustine because I am in agreement with his decision, and I would affirm it. The issue in this 

citation on review before the Commission is whether the Secretary failed to prove that Spirit did 

not develop or document energy control procedures in violation of § 1910.147(c)(4)(i).1 It is 

undisputed that Spirit’s primary written energy control program document, “SOI-304,” while it 

does not address the Sterling semi-tractor truck by name, states that employees should “[r]efer to 

maintenance manual or contact supervision if unsure of energy routing, how to attain zero energy 

state or moving part isolation.”2 It is also undisputed that Spirit maintained a Sterling-specific 

vehicle maintenance manual, which was readily available for reference by the garage mechanics. 

Lastly, it is undisputed that OSHA’s compliance officer never reviewed any vehicle maintenance 

manuals, including the Sterling manual; thus, she did not know whether the manual contained 

adequate energy isolation procedures for the type of work at issue in the citation. Therefore, the 

correctness of the judge’s judgment on partial findings depends upon whether the Sterlingspecific maintenance manual should be construed as part of Spirit’s LOTO program. I find that 

the vehicle maintenance manual is part of Spirit’s LOTO program. Further, because the 

Secretary conceded that the compliance officer never reviewed the Sterling-specific manual, the 

Secretary has failed to prove that Spirit failed to comply with § 1910.147(c)(4)(i) as cited.

A judgment on partial findings pursuant to Federal Rule of Civil Procedure 52(c) is 

properly entered where the judge determines that the Secretary “has failed to offer persuasive 

evidence regarding the necessary elements of his case.”3

 CMS Software Design Sys., Inc. v. Info 

1 Section 1910.147(c)(4)(i) provides that “[p]rocedures shall be developed, documented and 

utilized for the control of potentially hazardous energy when employees are engaged in the 

activities covered by this section.” The citation alleges that “[t]he employer failed to develop 

and document specific energy control procedures” with respect to the Sterling vehicle. Hence, as 

discussed further below, the Secretary did not cite Spirit for an alleged failure of utilization of 

energy control procedures. 

2 Portions of the Sterling maintenance manual and one other related maintenance manual were

admitted into evidence at the hearing. However, it is the Sterling-specific maintenance manual 

that is specifically at issue on review, as this is the vehicle that was involved in the accident and 

fatality, and the manual relied upon by the judge in vacating the citation. 

3 The parties have stipulated that a motion for judgment on partial findings is governed by the 

same standard as a motion for involuntary dismissal under Rule 41(b). See majority’s discussion 

10 

 
Designs, Inc., 785 F.2d 1246, 1248 (5th Cir. 1986). Under Rule 52(c), “the [j]udge, as trier of 

fact, is not subject to the same constraints imposed upon the [j]udge in a jury trial who must 

under Rule 50 determine whether or not to deny the jury its role as the finder of fact.” Morgan 

& Culpepper, Inc., 5 BNA OSHC 1123, 1124, 1977-78 CCH OSHD ¶ 21,605, p. 25,929 (No. 

9850, 1977). Rather, “a judge may evaluate the evidence with the same scrutiny as if rendering a 

judgment at the conclusion of the proceedings.” Id. The judge may even resolve disputed issues 

of fact. DuPont v. S. Nat’l Bank of Houston, 771 F.2d 874, 879 (5th Cir. 1985). In comparison 

to a motion for summary judgment, the judge is not required to view the evidence in the light 

most favorable to the Secretary, and he “is not required to deny the motion even if the evidence, 

when viewed in a light most favorable to a plaintiff, establishes a prima facie case.”4 Morgan & 

Culpepper, Inc., 5 BNA OSHC at 1124, 1977-78 CCH OSHD at p. 25,929. 

The judge’s decision to grant Spirit’s motion for judgment on partial findings was 

entirely proper. Upon Spirit’s motion, the judge observed that the vehicle maintenance manuals 

were expressly referenced in SOI-304, and the Secretary never offered any evidence (far less 

than a preponderance of the evidence) to support a contrary conclusion—in other words, that the 

vehicle maintenance manuals should be deemed excluded from the overall LOTO program. 

Because the compliance officer conceded that she failed to review the maintenance manuals, 

including the Sterling manual, the judge concluded the Secretary did not satisfy his burden of 

proving the LOTO program as a whole was deficient. 

It is fundamental that the Secretary bears the burden of proving all elements of the 

citation, including showing that the cited standard was violated. Ormet Corporation, 14 BNA 

OSHC 2134, 1991-93 CCH OSHD ¶ 29,254, p. 39,199 (No. 85-0531, 1991) (to establish a prima 

facie violation of a specific regulation, the Secretary must prove by a preponderance of the 

evidence that the terms of the standard were violated). Here, this means the Secretary must show 

that procedures for the control of potentially hazardous energy were not “developed” or 

“documented” in violation of § 1910.147(c)(4)(i). See Gen. Motors Corp., 22 BNA OSHC 1019, 

of Rule 52(c), in footnote 2 supra, which governs motions to dismiss at a bench trial and was 

adopted in 1991 to supersede Rule 41(b). 

4 Even so, in granting the motion for judgment on partial findings here, the judge stated that he 

had considered the evidence and any inference therefrom in the light most favorable to the nonmoving party. 

11 

 
1046, 2004-09 CCH OSHD ¶ 32,928, p. 53,625 (No. 91-2834, 2007) (“ ‘The key . . . [is] the 

language of the statute or the specific standard or regulation cited.’ ”) (internal citation omitted).

My colleagues posit a smorgasbord of alternative possibilities as to why the judge should 

be reversed: (1) the Sterling vehicle maintenance manual was not incorporated into Spirit’s 

LOTO program; (2) Spirit’s LOTO program affords its employees too much discretion; (3) 

Spirit’s LOTO program does not require its employees to utilize the vehicle maintenance 

manuals; and (4) Spirit’s LOTO program lacks the required specificity. The fundamental error 

the majority opinion commits in reversing the judge’s disposition of the citation is that it would 

amend the substantive requirements of 29 C.F.R. § 1910.147(c)(4)(i). I cannot join in this 

unwarranted determination. 

Whether Spirit’s LOTO Program Incorporated the Vehicle Maintenance Manuals

At the outset, the majority ignores that § 1910.147(c)(4)(i) is a performance-based 

standard. As such, it allows the employer to determine the procedures necessary to provide 

effective LOTO protection for its employees. In developing a LOTO program an employer may 

use “[a]ny method of identification . . . that enables an authorized employee to determine which 

energy control instructions . . . apply to a particular machine or piece of equipment . . . .” OSHA 

Directive CPL-02-00-147, The Control of Hazardous Energy – Enforcement Policy and 

Inspection Procedures, p. 3-42 (Feb. 11, 2008) (“LOTO Directive”) (emphasis added). The 

preamble to the LOTO standard expressly states: “The Final Rule . . . provides flexibility for 

each employer to develop a program and procedure which meets the needs of the particular 

workplace and the particular types of machines and equipment being maintained or serviced.” 

Lockout/Tagout Final Rule, 54 Fed. Reg. 36,644, 36,659 (Sept. 1, 1989). If the Secretary 

contends that Spirit’s reliance on the SOI-304 cross-reference to incorporate vehicle maintenance 

manuals failed to comport with this broad, performance-based standard, he must offer a 

preponderance of the evidence to support his position. 

The Secretary failed to offer persuasive evidence that SOI-304’s cross-reference was 

insufficient or to otherwise show that the Sterling-specific manual should be deemed excluded 

from Spirit’s overall LOTO program. To the contrary, as the judge found, the uncontroverted 

evidence showed that the manuals were expressly cross-referenced in SOI-304 and that they 

were readily available to the garage mechanics. The judge correctly concluded that the plain 

terms of the cross-reference in SOI-304 were sufficient to render the Sterling maintenance 

12 
manual part of Spirit’s overall LOTO program, especially in the absence of any evidence to the 

contrary. In light of the compliance officer’s concession that she never even reviewed the 

Sterling maintenance manual, the Secretary did not bear his burden of proving that Spirit failed 

to develop or document procedures for controlling hazardous energy associated with the Sterling 

truck in violation of § 1910.147(c)(4)(i). 

While the Secretary attempts to shift the burden of persuasion to Spirit regarding the 

inclusion (or exclusion) of the vehicle maintenance manuals, the judge correctly noted that the 

burden of proof regarding any citation lies with the Secretary, rather than the Respondent. E.g.,

Crown Cork & Seal USA, Inc., 23 BNA OSHC 1674, 1681, 2011 CCH OSHD ¶ 33,155, p. 

55,421 (No. 09-0973, 2011). Thus, if the Secretary contends the vehicle maintenance manuals 

are not part of Spirit’s LOTO program, the Secretary must show this by a preponderance of the 

evidence.

The Secretary also contends the judge erred by relying on a rule of law, rather than a 

finding of fact, in concluding that the vehicle maintenance manuals are part of the LOTO 

program. Here, the Secretary’s position is plainly in error. The judge based his decision on 

findings of fact, stating that: 

The court has considered only the evidence and any inferences 

therefrom, and have [sic] done so in the light most advantageous to 

the nonmoving party. The court has resolved any conflicts in favor 

of the party resisting the motion . . . Even considering the 

evidence presented by Complainant in a light most favorable to 

Complainant, there was clearly no affirmative showing that 

Respondent violated the cited standard. 

Indeed, even before opening arguments, the judge stated that his decision whether to include the 

vehicle maintenance manuals would turn on a question of fact, not law: “[Witnesses] will not 

testify as to any conclusion that the Respondent’s policy was in compliance with the standard as 

that is legally based and is within my purview. [However] you can tell me that the Standard 

Operating Procedure is this and that the Standard Operating Procedure links it to the 

manual . . . .”) (emphasis added).

On occasion, the Secretary appears to lose sight of his own argument, seemingly 

conceding that the judge’s decision was based on facts. E.g., Sec’y Br. p. 11 (characterizing 

judge’s decision as a “finding” which was “not supported by a clear preponderance of the 

evidence”). The Secretary even stipulates that this matter is governed by Rule 52(c) which, by 

13 
definition, applies to judgments rendered on partial findings of fact.

5

 See FED. R. CIV. P. 52 

advisory committee’s notes regarding 1991 Amendment (Rule 52(c) “authorizes the court to 

enter judgment at any time that it can appropriately make a dispositive finding of fact on the 

evidence.”). Whatever the Secretary’s position here is, the judge’s decision was properly based 

on a factual finding and any argument to the contrary is in error. 

Morgan & Culpepper, 5 BNA OSHC 1123, 1977-78 CCH OSHD ¶ 21,605 (No. 9850, 

1977), which is relied upon by the majority, is Commission precedent that supports my 

determination to affirm the judge’s ruling. In Morgan & Culpepper, the respondent was cited 

under a standard requiring portable ladders to be “tied, blocked, or otherwise secured” while in 

use. The compliance officer testified that the ladder in question was not tied or blocked, but she 

conceded that she had not checked whether the ladder was otherwise secured, as would have put 

the respondent in compliance with the cited standard. As a consequence, the Commission 

affirmed the judge’s conclusion that “complainant has failed to establish by a clear 

preponderance of the evidence that respondent had not complied with the cited standard.” Id. at 

1125, 1977-78 CCH OSHD at p. 25,929. Just as the compliance officer in Morgan & Culpepper

did not examine the stability of the ladder, the compliance officer here did not examine the 

sufficiency of the Sterling maintenance manual. Thus, just as the compliance officer in Morgan 

& Culpepper could not testify as to the stability of the ladder, the compliance officer here could 

not testify as to the sufficiency of the manual. As in Morgan & Culpepper, the Secretary failed 

to make a prima facie showing that the cited standard was violated. I agree that the judge 

properly vacated the citation on the ground that the Secretary failed to adduce substantial 

evidence in support of his claim that the vehicle maintenance manuals should be excluded from 

Spirit’s LOTO program.

Whether Spirit’s LOTO Program Affords Employees Too Much Discretion

The Secretary argues that the judge should have excluded the vehicle maintenance 

manuals because the language of the SOI-304 cross-reference vests employees with discretion to 

decide whether or not to consult the vehicle maintenance manuals, rather than requiring them to 

5 The Secretary’s position controverts my colleagues’ conclusion that this issue depends upon a 

question of law, rather than a question of fact. 

14 

 
do so. In support of his argument, the Secretary relies on a well-known principle of contract law: 

an extrinsic document should only be incorporated into a contract if the parties have clearly and 

specifically agreed to do so. However, to begin with, the Secretary never sought to exclude the 

Sterling maintenance manual based on a principle of contract construction; in any event, 

excluding it on such a basis is improper here. This is not a case involving the scope of an 

agreement between contracting parties, and the Secretary’s reliance upon a rule of contract 

construction is misplaced.6 Rather, this case involves an employer’s use of cross-references to 

notify employees about the existence of machine-specific safety information. As already noted 

above, OSHA recognizes that an employer’s LOTO program may take any form which “enables 

an authorized employee to determine which energy control instructions . . . apply to a particular 

machine or piece of equipment . . . .” LOTO Directive, at 3-42; see also Lockout/Tagout Final 

Rule, 54 Fed. Reg. at 36,659 (“The Final Rule . . . provides flexibility for each employer to 

develop a program and procedure which meets the needs of the particular workplace and the 

particular types of machines and equipment being maintained or serviced.”). 

Even if rules of contract construction did apply here, Spirit would still prevail. “Under 

general principles of contract law, a contract may incorporate another document by making clear 

reference to it and describing it in such terms that its identity may be ascertained beyond doubt.” 

New Moon Shipping Co., LTD v. MAN B & W Diesel, AG, 121 F.3d 24, 30 (2d Cir. 1997). Here, 

there can be no doubt that the SOI-304 cross-reference permits a reader to identify the pertinent 

vehicle maintenance manuals referenced therein. See Restatement (Second) of Contracts § 132

reporter’s note (1981) (noting that Restatement has been “revised . . . to state the doctrine which 

has gained increasing support over the years, that a sufficient connection between the papers is 

established simply by a reference in them to the same subject matter . . . .”) (internal quotation 

6 My colleagues appear to agree that the Secretary’s cited contract cases, which are not 

Commission precedent, are inapplicable, and they disregard those cases in favor of Advanced 

Display Systems, Inc. v. Kent State Univ., 212 F.3d 1272, 1283 (Fed. Cir. 2000) (discussing 

patent law jurisprudence of anticipation, a question of law, versus incorporation by reference, a 

question of law). However, I conclude that reliance upon Advanced Display Systems and patent 

law jurisprudence is also misplaced. Here, Spirit’s written energy control procedure is neither a 

contract nor a patent application but, rather, a unilateral and internal statement of an employer’s 

policies; as such, patent case law is equally inapplicable.

15 

 
marks omitted). There is no basis to conclude that the vehicle maintenance manuals should be 

deemed excluded based on rules of contract construction. 

Moreover, while the Secretary cited Spirit under § 1910.147(c)(4)(i), any issue taken with 

regard to the degree of discretion afforded to employees in consulting vehicle maintenance 

manuals relates to a different standard—29 C.F.R. § 1910.147(c)(4)(ii).7 E.g., Gen. Motors 

Corp., 22 BNA OSHC at 1026, 2004-09 CCH OSHD at p. 53,608. It is notable that the term 

“discretion” does not appear in the citation. The Secretary did not offer any witness testimony at 

the hearing regarding the degree of discretion afforded to Spirit employees by SOI-304. Further, 

the Secretary did not challenge the language of the SOI-304 cross-reference or the degree of 

discretion afforded to employees, in opposing Spirit’s motion for judgment on partial findings. 

In fact, over the course of the entire hearing, the Secretary did not once attempt to rely upon the 

SOI-304 cross-reference or the degree of discretion afforded to employees. Instead, the 

Secretary’s case focused solely upon the question of whether the overall LOTO program 

contained procedures that were specific to the Sterling truck. 

In addition, the degree of discretion which may be afforded to employees under a 

compliant LOTO program amounts to a question of fact, which the Secretary failed to develop at 

the hearing. Id. (“the amount of detail required [in a LOTO program] . . . depend[s] on the 

complexity of the equipment and the control measures to be utilized”) (internal quotations 

omitted). Therefore, in my opinion, questions regarding the language of the SOI-304 crossreference, including the degree of discretion afforded to employees, are not properly before the 

Commission. See Commission Rule 92(c), 29 C.F.R. § 2200.92(c) (“The Commission will 

ordinarily not review issues that the [j]udge did not have the opportunity to pass upon.”); Altor, 

7 The Secretary has never sought leave to amend its citation to assert a violation of 29 C.F.R. 

§ 1910.147(c)(4)(ii). See, e.g., Cleveland Wrecking Co., 24 BNA OSHC 1103, 1107 n.2, 2013 

CCH OSHD ¶ 33,277, p. 56,448 n.2 (No. 07-0437, 2013) (issue abandoned where not raised on 

review). Regardless, the issue was not tried by consent, and it would be prejudicial to Spirit to 

permit any amendment at this late stage. See Armstrong Steel Erectors, 17 BNA OSHC 1385, 

1387-88, 1995-97 CCH OSHD ¶ 30,909, p. 43,031 (No. 92-262, 1995) (citations omitted) 

(applying Rule 15(b)(2) of the Federal Rules of Civil Procedure and stating consent to try an 

unpleaded issue may be express or implied, but it occurs only when the parties squarely 

recognized that they were trying an issue not raised in the pleadings). 

16 

 
Inc., 23 BNA OSHC 1458, 1461 n.7, 2011 CCH OSHD ¶ 33,135, p. 55,132 n.7 (No. 99-0958, 

2011) (“[W]e see no basis to address that issue given the Secretary's failure to preserve her 

objections before either of the judges that were assigned to this matter below.”), aff’d, 498 F. 

App’x 145 (3d Cir. 2012) (unpublished). I therefore conclude that the Secretary’s discretion 

argument is insufficient to avoid vacation of the citation. 

Whether Spirit’s LOTO Program Fails Because it Does not Require Employees to Utilize the 

Vehicle Maintenance Manuals

The majority raises a more nuanced argument relating to the question of discretion: the 

majority argues that the degree of discretion afforded by SOI-304 should result in a finding that 

Spirit failed to utilize (rather than develop or document) energy control procedures as required by 

29 C.F.R. § 1910.147(c)(4)(i). The majority’s argument is incredible given that the Secretary 

never once suggested that the citation to Spirit implicated the question of utilization. Instead, the 

citation expressly alleged that “[t]he employer failed to develop and document specific energy 

control procedures for employees who perform work on vehicles . . . One feasible means of 

abatement would have been to develop and document specific energy control procedures . . . .” 

(Emphasis added). The majority’s attempt to cram a square peg in a round hole illustrates the 

simple and undeniable fact that, viewed in the proper light, the Secretary’s offer of proof is 

insufficient to prove a failure to comply with the terms of the standard as cited. 

Whether Spirit’s LOTO Program Lacks the Required Specificity

In a fallback argument, the Secretary next argues that even if the Sterling vehicle 

maintenance manual is deemed part of the overall LOTO program, the program is deficient 

because it lacks specificity.8

 Here, the Secretary falls short based on the same reasoning already 

discussed above: the Secretary’s only witness conceded that she never reviewed the Sterlingspecific manual and, thus, the Secretary simply cannot challenge the sufficiency of the overall 

LOTO program. Moreover, the Secretary’s specificity argument falls under the well-established 

8 I note that this is a fallback argument because the Secretary did not contend in its citation that 

the LOTO procedures for the Sterling vehicle are too general or, in other words, non-specific; 

rather, the Secretary argued that machine-specific procedures for the Sterling vehicle did not 

exist at all. Any suggestion now that the existing Sterling procedures are non-specific is 

essentially a concession that Sterling-specific procedures do, in fact, exist and that the original 

citation lacks merit.

17 

 
principle of statutory construction that the specific takes precedence over the general. See 29 

C.F.R. § 1910.5(c). That is, “[i]f a particular standard is specifically applicable to a condition, 

practice, means, method, operation, or process, it shall prevail over any different general 

standard which might otherwise be applicable to the same condition, practice, means, method, 

operation, or process.” Id. In determining whether a specific standard preempts a general one, 

we are guided by the principle that the standards should be applied so as to effectuate the 

Secretary's rulemaking intent. See Phelps Dodge Corp., 11 BNA OSHC 1441, 1444, 1983-84 

CCH OSHD ¶ 26,552, p. 33,920–21 (No. 80–3203, 1983), aff’d, 725 F.2d 1237 (9th Cir. 1984). 

Any allegation that Spirit’s LOTO program lacked specificity requires citing a violation 

of § 1910.147(c)(4)(ii), which preempts § 1910.147(c)(4)(i). Section 1910.147(c)(4)(ii) requires 

an employer to “clearly and specifically” outline the methods to be used in controlling hazardous 

energy, including “specific” statements of intent, procedural steps for shut down, procedural 

steps for locking out, and requirements for testing the effectiveness of the energy control 

measures used. According to the preamble to the LOTO standard final rule, 

“[o]vergeneralization can result in a document which has little or no utility to the employee who 

must follow the procedure.” Lockout/Tagout Final Rule, 54 Fed. Reg. at 36,670. Consequently, 

if the Secretary contends that, while Spirit had an energy control program, its procedures were 

inadequate to satisfy the standard’s specificity requirement, the Secretary should have cited a 

violation of § 1910.147(c)(4)(ii).9 See Gen. Motors, 22 BNA OSHC 1019, 2004-2009 CCH 

OSHD ¶ 32,928 (discussing and finding violations of § 1910.147(c)(4)(i) where respondent’s 

employees failed to utilize energy control procedures and of § 1910.147(c)(4)(ii) where 

respondent’s energy control procedures were inadequate). See also OSHA’s LOTO Directive, at 

2-9 (“In section (c)(4)(i) of the LOTO standard, employers are required to develop, document, 

and utilize procedures for the control of potentially hazardous energy and, pursuant to section 

(c)(4)(ii), these procedures must, in part, clearly and specifically . . . [address] . . . clear and 

specific steps to be followed in order to control hazardous energy.”) (emphasis in original). 

Finally, regarding the specificity argument, I note that the majority now seems to 

question whether Spirit properly maintained “machine specific energy control sheets,” a term not 

9 See supra, footnote 7 (amendment would now be improper). 

18 

 
contained in the LOTO standard but which appears in Spirit’s LOTO program. The majority 

suggests the citation should be affirmed because “it is undisputed that no documents explicitly 

identified as machine specific energy control sheets existed . . . .” The majority’s discussion of 

machine specific energy control sheets is a red herring. As the Secretary’s sole witness, the 

compliance officer, conceded during direct examination, the citation in this case is based on the 

Secretary’s claim that “Spirit’s lockout/tagout program [was] deficient because it did not have 

‘specific, written procedures, documented procedures, for maintenance or servicing of 

vehicles’ ”—in other words, specifically for the Sterling vehicle. Neither the citation nor the 

complaint contains the term “machine specific energy control sheet.” In addition, neither the 

citation nor the complaint suggests that the titling of the documents in question is pertinent to 

this case. The form or title of the information does not bear upon the relevant question of 

whether Spirit developed and documented the required procedures for the Sterling vehicle, 

which was undisputed given the compliance officer’s admission that she never reviewed the 

vehicle maintenance manuals.

Moreover, even if the “machine specific energy control sheets” were relevant to the 

citation, there is no basis for my colleagues’ suggestion that the existence (or non-existence) of 

machine specific energy control sheets is “undisputed” in this case. Spirit argues that the term 

“machine specific energy control sheets” is simply another term for the vehicle maintenance 

manuals, including the Sterling manual. Indeed, the majority’s suggestion that this issue is 

“undisputed” is contradicted by the very next sentence in the majority opinion, where my 

colleagues concede: “[Spirit] contend[s] that the manuals are the required energy control 

sheets.” In my view, to characterize this issue as “undisputed” misstates the record and the 

parties’ contentions. 

In the absence of some evidence from the Secretary, I note that his proposed limitation on 

Spirit’s use of cross-references would be contrary to the goal of promoting employee safety. In 

some cases, a cross-reference to machine-specific information may be the very best way to 

ensure that employees have access to the best safety information available. Indeed, OSHA’s 

LOTO Directive concedes this point. See LOTO Directive, at 3-24 (“It is essential for employers 

to consult with and incorporate specific vehicle manufacturer servicing and maintenance 

guidelines (e.g., operating manuals and bulletins) and other relevant materials to establish the 

hazardous energy control procedures. These manuals and materials often provide specific step19 
by-step instructions on how to safely perform servicing or maintenance tasks.”). In any given 

case, the Secretary may offer proof that a cross-reference to a separate document is insufficient 

under the circumstances, or he may argue that employees were unaware that a separate document 

existed. However, in the absence of such evidence, I would not restrict the use of machinespecific cross-references that can improve employee safety. Here, again, the Secretary failed to 

meet his burden to prove a failure by Spirit to comply with the terms of the cited standard. 

I would affirm the judge’s decision and vacate the citation. 

 /s/ 

 Heather L. MacDougall 

Dated: December 24, 2014 Commissioner

20 
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

OSHRC DOCKET NO. 10-1697 

Appearances:

Christopher Green, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

For Complainant

James Love, Esq., Mary Lohrke, Esq., Titus, Hillis, Reynolds, Love, Dickman & McCalmon, Tulsa, Oklahoma

For Respondent

 

Gary Willhite, Union Representative, UAW Local 952

 For Statutory Party

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER

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 

investigation of a Spirit Aerosystems, Inc. ("Respondent") worksite in Tulsa, Oklahoma between 

March 19, 2010 and March 25, 2010. As a result of that investigation, OSHA issued a Citation and 

Notification of Penalty (“Citation”) to Respondent alleging one serious violation of the Act. 

Secretary of Labor, 

 

 Complainant,

 

 v. 

Spirit Aerosystems, Inc., 

 

 Respondent, 

-------------------------------------------------

International Union, United Automobile, 

Aerospace & Agricultural Implement Workers 

of America (UAW Local 952), 

 Statutory Party,

 29 U.S.C. §659(c).
Respondent timely contested the Citation and a trial was conducted on July 19, 2011 in Tulsa, 

Oklahoma. 

Following Complainant’s presentation of evidence, the court granted Respondent’s Motion for 

Directed Verdict.

1 (Tr. 135). Two weeks after the trial, Complainant filed a Motion for 

Reconsideration of Court’s Order Granting Respondent’s Motion for Judgment on Partial Findings 

Pursuant to Fed. R. Civ. P. 52(c). Respondent subsequently filed a Brief in Opposition to 

Complainant’s Motion for Reconsideration of Court’s Order Granting Respondent’s Motion for 

Judgment on Partial Findings Pursuant to Fed. R. Civ. P. 52(c). After due consideration, 

Complainant’s motion is DENIED and the court’s decision on the merits is set out below. 

Jurisdiction

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

Act. At all times relevant to this action, Respondent was an employer engaged in a business affecting 

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

Answer; Joint Stipulation Statement; Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

Stipulations

1. Spirit Aerosystems, Inc. (“Spirit”) designs and manufactures airplane components for various 

aerospace customers. (Joint Stipulation Statement).

2. Spirit is an employer engaged in a business affecting interstate commerce, with employees, in 

the United States. (Joint Stipulation Statement).

3. [redacted] was hired as a Maintenance Mechanic to work at the Spirit-Tulsa facility in March 

2007. (Joint Stipulation Statement).

4. [redacted] was one of two Maintenance Mechanics assigned to work in the garage. (Joint 

Stipulation Statement).

1 Respondent actually “moved to dismiss” the case based upon Complainant’s inability to meet its burden of proof with 

regard to proving a violation of the cited standard, which the court interpreted as a Motion for Directed Verdict. (Tr. 131, 

133, 135). 

2 

 
5. [redacted] had a degree from Oklahoma State University, Okmulgee in Diesel and Heavy 

Equipment Mechanics and had approximately thirty (30) years experience as a mechanic prior 

to being hired by Spirit. (Joint Stipulation Statement).

6. The garage mechanics perform routine, minor servicing and maintenance, such as repairing air 

leaks, on Company-owned vehicles, including diesel tractors. (Joint Stipulation Statement).

7. Spirit-Tulsa has a policy, Safe Operating Instruction – AeroStructures Business Unit SOI-304, 

entitled Control of Hazardous Energy – Lockout/Tagout (hereinafter “SOI-304” or the 

“policy”) that was issued on October 7, 2009 and in effect on March 19, 2010. (Joint 

Stipulation Statement).

8. The policy applies to all employees at the Spirit-Tulsa facility, and purports to establish safety 

guidance for the control of hazardous energy to protect employees from the hazards of 

unexpected start up of machines and equipment during service and maintenance. (Joint 

Stipulation Statement).

9. [redacted] received annual training on SOI-304 in November 2008 and November 2009. (Joint 

Stipulation Statement).

10. [redacted] was fatally injured on March 19, 2010 accident, when he was struck by a Spiritowned 2002 Sterling diesel tractor (hereinafter the “tractor” or “truck”). (Joint Stipulation 

Statement).

11. Prior to the March 19, 2010 accident, there had been no other accidents involving the tractor.

(Joint Stipulation Statement).

12. Prior to the day of the accident, [redacted] had been asked by Spirit employee Jerry Dollar to 

repair an air leak in the air system of the tractor. (Joint Stipulation Statement).

13. [redacted] and the other garage mechanic, Jimmy Allen, located the leaky air valve in the 

tractor’s air system the day before the accident on March 18, 2010. (Joint Stipulation 

Statement).

3 
14. On March 19, 2010, [redacted] replaced the air system valve fitting. (Joint Stipulation 

Statement).

15. [redacted] was performing service and/or maintenance on the tractor when he replaced the air 

system valve fitting. (Joint Stipulation Statement).

16. [redacted] worked alone on the tractor on March 19, 2010. The other garage mechanic, Jimmy 

Allen, was working away from the garage at the time of the accident. (Joint Stipulation 

Statement).

17. There were no eye witnesses to the accident. (Joint Stipulation Statement).

18. The tractor’s ignition was turned off and the truck’s engine was not running while [redacted]

replaced the leaky air valve on March 19, 2010. (Joint Stipulation Statement).

19. The digital information extracted from the electronic control module installed on the truck and 

the Daily Engine Usage Log demonstrate that the tractor’s engine was only started once on 

March 19, 2010, and there was no engine idle time. In other words, the truck’s engine never 

ran in the “neutral” position on March 19, 2010. (Joint Stipulation Statement).

20. After [redacted] replaced the leaky air valve, he tried to start the tractor’s motor, but it would 

not start because the transmission selector was in the “drive” position. (Joint Stipulation 

Statement).

21. The tractor’s motor will not start using the push-button starter if the transmission selector 

switch is in the “drive” position. The transmission selector must be in neutral, the clutch pedal 

must be depressed, and the ignition switch must be “on” for the push-button starter to start the 

engine. (Joint Stipulation Statement).

22. The Daily Engine Log and digital information extraction show that the truck’s transmission 

was in drive the entire time the engine was running on March 19, 2010. (Joint Stipulation 

Statement).

4 
23. [redacted] retrieved a battery jump box and presumably continued to try to start the tractor’s 

motor. The battery jump box cables were still attached to the external terminals of the truck at 

its final resting stop following the accident. (Joint Stipulation Statement).

24. [redacted] circumvented the starter system safety switches by placing a pry bar across the 

terminals on the starter relay to short-circuit the starter system and start the engine. (Joint 

Stipulation Statement).

25. A pry bar was found after the accident at the scene where the tractor was being repaired. (Joint 

Stipulation Statement).

26. Characteristic pitting from electrical arcing induced by the shorting of the starter relay was 

observed on the pry bar and corresponding sites on the starter relay terminals. (Joint 

Stipulation Statement).

27. The distance between the pitting marks on the pry bar matches the distance between the 

terminals and is consistent with placing the pry bar across the starter relay terminals. (Joint 

Stipulation Statement).

28. The short circuiting of the starter energized the starter solenoid, which engaged the starter 

motor which, in turn, caused the truck’s engine to turn over and start the engine. (Joint 

Stipulation Statement).

29. If the terminals of the starter relay are shorted, then the starter solenoid will engage causing the 

truck’s engine to start, regardless of the configuration of the ignition and safety interlock 

systems (the gear selector and clutch). (Joint Stipulation Statement).

30. As the starter turned the engine, the transmission engaged second gear, which caused the truck 

to move forward, overcoming the wheel chocks and rear axle spring brakes which were set at 

the time of the accident. (Joint Stipulation Statement).

5 
31. [redacted] was standing on the ground to the front and inside the driver’s side front wheel of 

the tractor, within the engine compartment, when he shorted the starter relay and was struck by 

the moving truck. (Joint Stipulation Statement).

32. The keys were in the ignition of the truck while [redacted] was standing on the ground within 

the engine compartment of the truck. (Joint Stipulation Statement).

33. The hood of the tractor was unlatched at the time of the accident. (Joint Stipulation Statement).

34. The hood being unlatched enabled [redacted] to be standing on the ground within the engine 

compartment at the time the engine started. (Joint Stipulation Statement).

35. The tractor traveled in a circular arc for approximately 290 feet while dragging [redacted]

underneath the front axle on the driver’s side. (Joint Stipulation Statement).

36. The tractor impacted the left front of a Chevrolet Impala parked next to a building. The tractor 

pushed the Impala into the adjacent building, which stopped the forward movement of the 

tractor. (Joint Stipulation Statement).

37. Spirit employee, Jeffrey Mauldin, who came upon the scene, turned off the truck’s ignition 

key. (Joint Stipulation Statement).

Applicable Law

To establish a prima facie violation of a specific regulation promulgated under Section 5(a)(2) 

of the Act, Complainant must prove by a preponderance of the evidence that: (1) the standard applied

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

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

reasonable diligence could have known, of the violative conditions. Ormet Corporation, 14 BNA 

OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991). 

Discussion

At the beginning of the trial, the court heard argument and foundational testimony relating to 

6 
several pre-trial motions filed by both parties in the last few days leading up to the trial. (Tr. 10-51). 

After due consideration of the information presented in court and the content of the parties’ pleadings, 

the court ruled on: (1) Respondent’s Motion in Limine to Exclude Evidence Relating to OSHA 

Instruction/Directive Number CPL 02-00-147 and the Oregon OSHA Fact Sheet, (2) Respondent’s 

Motion in Limine Precluding Admission of OSHA’s Internal Investigation Reports, (3) Respondent’s 

Motion in Limine to Exclude Hearsay Evidence, (4) Complainant’s Response to Respondent’s Motions 

in Limine, (5) Complainant’s Objections to Respondent’s Trial Exhibits and Witness Testimony, (6) 

Respondent’s Brief in Support of its Proposed Expert Testimony of Jeremy Daily, (7) Complainant’s 

Objections and Motion to Exclude Oral Testimony of Respondent’s Expert Witnesses Jeremy Daily 

and Marcus Durham, (8) Respondent, Spirit Aerosystems, Inc.’s, Response to Complainant’s 

Objections to Respondent’s Trial Exhibits and Witness Testimony. (Tr. 52-80). Following the court’s 

multiple rulings and an extended recess, Complainant presented its case in chief by eliciting testimony 

from one witness in support of its allegations in this case: Compliance Safety and Health Officer 

(“CSHO”) Evette McCready. (Tr. 89). 

Citation 1 Item 1

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

29 C.F.R. §1910.147(c)(4)(i): Procedures were not developed, 

documented and utilized for the control of potentially hazardous 

energy when employees were engaged in activities covered by this 

section: On March 19, 2010, and times prior thereto; the employer 

failed to develop and document specific energy control procedures for 

employees who perform maintenance on vehicles. Employees are 

exposed to multiple hazards such as, but not limited to, being struck by 

vehicles, electric shock and fire. On March 19, 2010, an employee 

was fatally injured while replacing a fitting on a Sterling L-90 truck. 

The truck weighs approximately 35,000 lbs. The employee was found 

trapped between the wheel and the engine underneath the truck. The 

keys were in the ignition and the truck was still running. The 

employee had been dragged 286 feet underneath the truck. He was 

pronounced dead at the scene. 

 The cited standard provides: 

7 
29 C.F.R. §1910.147(c)(4)(i): Energy control procedure. (i) 

Procedures shall be developed, documented and utilized for the 

control of potentially hazardous energy when employees are engaged 

in the activities covered by this section.

CSHO McCready was assigned to conduct an OSHA investigation at Respondent’s Tulsa 

facility as a result of the fatality accident on March 19, 2010. (Tr. 92-93). During the course of her 

investigation, she requested and was provided a copy of Respondent’s Lockout/Tagout Program 

(“LO/TO Program”). (Tr. 95-96; Ex. C-6). Upon review, CSHO McCready concluded that the

program was deficient because it did not specifically address the energy isolation procedures for the 

Sterling semi-tractor which was involved in the fatal accident. (Tr. 106-111). However, at trial, CSHO 

McCready acknowledged that Respondent’s Lockout/Tagout Program plainly states, with regard to 

servicing and maintenance, that specific vehicle maintenance manuals are incorporated into the 

program and should be referenced by employees. (Tr. 119-120; Ex. C-6, pp. 3-4). In addition, CSHO 

McCready testified that Nick Nichols, Respondent’s Maintenance Manager, told her during his

investigative interview that Respondent’s garage mechanics had specific vehicle maintenance manuals 

available to them. (Tr. 123). Despite obtaining these two pieces of information during her 

investigation, CSHO McCready never reviewed Respondent’s maintenance manual for the Sterling 

semi-tractor involved in the accident. (Tr. 124). Therefore, she did not know whether the maintenance 

manual contained adequate energy isolation procedures for the type of work being performed by Mr. 

[redacted] at the time of the accident or other work performed by Respondent’s garage employees. (Tr. 

124-125). She simply never asked for it, never reviewed it, and did not know what was in it, even by 

the time of the trial. 

Following CSHO McCready’s brief testimony, Complainant rested and Respondent 

immediately moved for directed verdict on the basis that Complainant wholly failed to prove that the 

cited standard had been violated, as Complainant’s evidence clearly established that OSHA did not 

know whether the energy control procedures contained in the Sterling semi-tractor maintenance 

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manual were compliant. (Tr. 132). See F.R.C.P. 41(b); Commission Rule 67; P&Z Company, Inc., 6 

BNA OSHC 1189, 1977-78 CCH OSHD ¶22,413 (No. 76-431, 1977); Morgan & Culpepper, 9 BNA 

OSHC 1533, 1981 CCH OSHD ¶25,293 (No. 9850, 1981). The court, since it is bound to follow the 

Federal Rules of Evidence to these proceedings under Commission Rules, must apply the federal 

standard in ruling on motions for a directed verdict. Under this standard, a court should direct a 

verdict for the Respondent if the Complainant has failed to adduce substantial evidence in support of 

her claim. See Business Dev. Corp. of N.C. v. United States, 428 F.2d 451, 453 (4th Cir.), cert. denied, 

400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970). 

 The court has considered only the evidence and any inferences therefrom, and have done so in 

the light most advantageous to the nonmoving party. The court has resolved any conflicts in favor of 

the party resisting the motion. Based on CSHO McCready’s own testimony, she obtained information 

from at least two sources during her investigation indicating that Respondent had specific vehicle 

maintenance manuals in its garage which were explicitly incorporated into Respondent’s general 

LO/TO Program and were supposed to be referenced by Respondent’s mechanics. Despite these facts, 

CSHO McCready neglected to review the information contained in those manuals. Since the 

allegation in Citation 1 Item 1 is failure of Respondent to have a LO/TO Program which specifically 

addressed energy isolation procedures during vehicle maintenance, and the CSHO failed to review 

specific vehicle maintenance manuals at Respondent’s facility, and did not know whether or not the 

procedures contained in those manuals complied with the cited regulation, the court granted 

Respondent’s motion. (Tr. 135). Even considering the evidence presented by Complainant in a light 

most favorable to Complainant, there was clearly no affirmative showing that Respondent violated the 

cited standard. The burden to prove all of the elements required to establish a prima facie violation of 

the Act, including failure to comply with the terms of the cited standard, fall squarely on Complainant. 

Ormet Corporation, supra. 

ORDER

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

Citation 1, Item 1 is hereby VACATED. 

 _/s/___________________________________ 

 PATRICK B. AUGUSTINE

 Judge, OSHRC 

Date: November 7, 2011 

Denver, Colorado 

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