Remember that under the OSH Act, the agency controls the enforcement process – from the performance of inspections to the decision to seek an order shutting down a dangerous operation to the enforcement of Section 11(c) which forbids retaliation against workers for raising safety concerns. The statute provides no real recourse and no remedy for employees victimized by violations, even if the violations are willful or repeated.[1]  This is true whether the violation involves hazards that may result in injury (or death) or in retaliation against employees for raising concerns or refusing dangerous work.  Employees may be able to participate in proceedings before the ALJ and OSHRC, but they have no private right of action.

In addition to the problems that are created by the very small number of inspectors, as previously noted in the introductory materials, penalties and fines are not large. Prior to 1990, the fines were largely symbolic – and pitifully small.  In 1990, Congress increased the fines seven-fold, leading to fine levels ranging from $7000 for non-serious and serious violations to $70,000 for repeated or willful violations. In 2001, the average assessed penalty for willful violations was $36,487; for serious violations, it was $959; for repeat violations, $4412; and for failure to comply with an abatement order $7687. In 2018, the penalties were again increased to reflect inflationary trends. The 2024 penalties are included above in Section 1.5, and current penalties can be found on the OSHA website at https://www.osha.gov/penalties/.

Most of these fines are never collected: 90% of cases are settled by negotiation with a reduction of the fine. OSHA and a cited employer may choose to settle a citation, often with reduced penalties, if the employer agrees to abate the hazard quickly.  Remember that abatement is not required during the period of litigation under the OSH Act (in contrast to the MSH Act) – this creates incentives for the agency to settle cases quickly, in order to reduce the likelihood of injuries that may result from uncorrected hazards.  Since correction of the unsafe condition is really the goal of the Act, this makes sense – but provides no financial incentive for compliance.  It is likely that the policy favoring settlement also reflects OSHA and the Solicitor’s inadequate resources. Unsettled citations may be litigated quite vigorously, however.  

Criminal penalties have been practically meaningless: they are rarely pursued; only misdemeanor charges can be brought; and the maximum penalty is a $10,000 fine and one year in prison.  Because the punishment is minimal, these cases do not receive priority within the Justice Department, which is responsible for their prosecution.  In the first 17 years after the Act became law, there were 41 cases referred to the Justice Department; 14 were prosecuted resulting in 10 convictions with no jail time. A few states have attempted to bring homicide charges against employers under state law; the success of these prosecutions has been, at best, mixed.

[1] Employees are almost always unable to bring civil tort actions as well, as a result of the exclusivity of the remedies under state workers’ compensation laws. For more on this, see the section below on workers' compensation. 

Mr. Justice WHITE delivered the opinion of the Court.

Section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or Act) ^[1] empowers agents of the Secretary of Labor (Secretary) to search the work area of any employment facility within the Act's jurisdiction. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations.   No search warrant or other process is expressly required under the Act.

On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow's, Inc., an electrical and plumbing installation business located in Pocatello, Idaho.   The president and general manager, Ferrol G. "Bill" Barlow, was on hand; and the OSHA inspector, after showing his credentials, informed Mr. Barlow that he wished to conduct a search of the working areas of the business.   Mr. Barlow inquired whether any complaint had been received about his company.   The inspector answered no, but that Barlow's Inc., had simply turned up in the agency's selection process.   The inspector again asked to enter the nonpublic area of the business; Mr. Barlow's response was to inquire whether the inspector had a search warrant.   The inspector had none.   Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.

Three months later, the Secretary petitioned the United States District Court for the District of Idaho to issue an order compelling Mr. Barlow to admit the inspector. The requested order was issued on December 30, 1975, and was presented to Mr. Barlow on January 5, 1976.   Mr. Barlow again refused admission, and he sought his own injunctive relief against the warrantless searches assertedly permitted by OSHA.   A three-judge court was convened.   On December 30, 1976, it ruled in Mr. Barlow’s favor.  Concluding that  Camara v. Municipal Court, 387 U.S. 523, 528-529 (1967), and See v. City of Seattle, 387 U.S. 541, 543 (1967) controlled this case, the court held that the Fourth Amendment required a warrant for the type of search involved here and that the statutory authorization for warrantless inspections was unconstitutional.   An injunction against searches or inspections pursuant to §  8(a) was entered.   The Secretary appealed, challenging the judgment, and we noted probable jurisdiction.

I

The Secretary urges that warrantless inspections to enforce OSHA are reasonable within the meaning of the Fourth Amendment.   Among other things, he relies on §  8(a) of the Act, 29 U.S.C. §  657(a), which authorizes inspection of business premises without a warrant and which the Secretary urges represents a congressional construction of the Fourth Amendment that the courts should not reject.   Regrettably, we are unable to agree.

The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes.   To hold otherwise would belie the origin of that Amendment, and the American colonial experience.  * * * 

This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes.   In Camara v. Municipal Court, supra, 387 U.S., at 528-529, 87 S.Ct., at 1731, we held:

"[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant."

 On the same day, we also ruled:

"As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant.   The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant."  See v. City of Seattle, supra, 387 U.S., at 543, 87 S.Ct., at 1739.

These same cases also held that the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations.  The reason is found in the "basic purpose of this Amendment  . . .  [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."  Camara, supra, 387 U.S., at 528, 87 S.Ct. at 1730.   If the government intrudes on a person's property, the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.   It therefore appears that unless some recognized exception to the warrant requirement applies, See v. City of Seattle, would require a warrant to conduct the inspection sought in this case.

The Secretary urges that an exception from the search warrant requirement has been recognized for "pervasively regulated business[es]," United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972), and for "closely regulated" industries "long subject to close supervision and inspection."   Colonnade Catering  Corp. v. United States, 397 U.S. 72, 74, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970).   These cases are indeed exceptions, but they represent responses to relatively unique circumstances.   Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise.   Liquor (Colonnade ) and firearms (Biswell ) are industries of this type;  when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.

 Industries such as these fall within the "certain carefully defined classes of cases," referenced in Camara, 387 U.S., at 528, 87 S.Ct., at 1731.   The element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware. * * *

The clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is the exception.   The Secretary would make it the rule.   Invoking the Walsh-Healey Act of 1936, 41 U.S.C. §  35 et seq., the Secretary attempts to support a conclusion that all businesses involved in interstate commerce have long been subjected to close supervision of employee safety and health conditions.   But the degree of federal involvement in employee working circumstances has never been of the order of specificity and pervasiveness that OSHA mandates.   It is quite unconvincing to argue that the imposition of minimum wages and maximum hours on employers who contracted with the Government under the Walsh-Healey Act prepared the entirety of American interstate commerce for regulation of working conditions to the minutest detail.   Nor can any but the most fictional sense of voluntary consent to later searches be found in the single fact that one conducts a business affecting interstate commerce;  under current practice and law, few businesses can be conducted without having some effect on interstate commerce.

The Secretary also attempts to derive support for a Colonnade-Biswell -type exception by drawing analogies from the field of labor law.   In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), this Court upheld the rights of employees to solicit for a union during nonworking time where efficiency was not compromised.   By opening up his property to employees, the employer had yielded so much of his private property rights as to allow those employees to exercise §  7 rights under the National Labor Relations Act.   But this Court also held that the private property rights of an owner prevailed over the intrusion of nonemployee organizers, even in nonworking areas of the plant and during nonworking hours.  NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956).

The critical fact in this case is that entry over Mr. Barlow's objection is being sought by a Government agent. Employees are not being prohibited from reporting OSHA violations.   What they observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy.   The Government inspector, however, is not an employee.   Without a warrant he stands in no better position than a member of the public.   What is observable by the public is observable, without a warrant, by the Government inspector as well. The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents.   That an employee is free to report, and the Government is free to use, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.

II

The Secretary nevertheless stoutly argues that the enforcement scheme of the Act requires warrantless searches, and that the restrictions on search discretion contained in the Act and its regulations already protect as much privacy as a warrant would.   The Secretary thereby asserts the actual reasonableness of OSHA searches, whatever the general rule against warrantless searches might be.   Because "reasonableness is still the ultimate standard," Camara v. Municipal  Court, 387 U.S., at 539, 87 S.Ct., at 1736, the Secretary suggests that the Court decide whether a warrant is needed by arriving at a sensible balance between the administrative necessities of OSHA inspections and the incremental protection of privacy of business owners a warrant would afford.   He suggests that only a decision exempting OSHA inspections from the Warrant Clause would give "full recognition to the competing public and private interests here at stake."  Ibid.

The Secretary submits that warrantless inspections are essential to the proper enforcement of OSHA because they afford the opportunity to inspect without prior notice and hence to preserve the advantages of surprise.   While the dangerous conditions outlawed by the Act include structural defects that cannot be quickly hidden or remedied, the Act also regulates a myriad of safety details that may be amenable to speedy alteration or disguise.   The risk is that during the interval between an inspector's initial request to search a plant and his procuring a warrant following the owner's refusal of permission, violations of this latter type could be corrected and thus escape the inspector's notice.   To the suggestion that warrants may be issued ex parte and executed without delay and without prior notice, thereby preserving the element of surprise, the Secretary expresses concern for the administrative strain that would be experienced by the inspection system, and by the courts, should ex parte warrants issued in advance become standard practice.

We are unconvinced, however, that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective.   In the first place, the great majority of businessmen can be expected in normal course to consent to inspection without warrant;  the Secretary has not brought to this Court's attention any widespread pattern of refusal. In those cases where an owner does insist on a warrant, the Secretary argues that inspection efficiency will be impeded by the advance notice and delay.   The Act's penalty provisions for giving advance notice of a search, 29 U.S.C. §  666(f), and the Secretary's own regulations, 29 CFR §  1903.6 (1977), indicate that surprise searches are indeed contemplated.   However, the Secretary has also promulgated a regulation providing that upon refusal to permit an inspector to enter the property or to complete his inspection, the inspector shall attempt to ascertain the reasons for the refusal and report to his superior, who shall "promptly take appropriate action, including compulsory process, if necessary."  29 CFR §  1903.4 (1977). The regulation represents a choice to proceed by process where entry is refused;  and on the basis of evidence available from present practice, the Act's effectiveness has not been crippled by providing those owners who wish to refuse an initial requested entry with a time lapse while the inspector obtains the necessary process. Indeed, the kind of process sought in this case and apparently anticipated by the regulation provides notice to the business operator. If this safeguard endangers the efficient administration of OSHA, the Secretary should never have adopted it, particularly when the Act does not require it.   Nor is it immediately apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the Secretary to seek an ex parte warrant and to reappear at the premises without further notice to the establishment being inspected.

Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises.   Probable cause in the criminal law sense is not required.   For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an  . . . inspection are satisfied with respect to a particular [establishment]."   Camara  v. Municipal Court, 387 U.S., at 538, 87 S.Ct., at 1736.   A warrant showing that a specific  business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights. We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions.

* * * Nor do we agree that the incremental protections afforded the employer's privacy by a warrant are so marginal that they fail to justify the administrative burdens that may be entailed.   The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.   A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed. These are important functions for a warrant to perform, functions which underlie the Court's prior decisions that the Warrant Clause applies to inspections for compliance with regulatory statutes. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967);  See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).   We conclude that the concerns expressed by the Secretary do not suffice to justify warrantless inspections under OSHA or vitiate the general constitutional requirement that for a search to be reasonable a warrant must be obtained.

III

We hold that Barlow's was entitled to a declaratory judgment that the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent and to an injunction enjoining the Act's enforcement to that extent. The judgment of the District Court is therefore affirmed.

Mr. Justice BRENNAN took no part in the consideration or decision of this case.

Mr. Justice STEVENS, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.

Congress enacted the Occupational Safety and Health Act to safeguard employees against hazards in the work areas of businesses subject to the Act. To ensure compliance, Congress authorized the Secretary of Labor to conduct routine, nonconsensual inspections.   Today the Court holds that the Fourth Amendment prohibits such inspections without a warrant.   The Court also holds that the constitutionally required warrant may be issued without any showing of probable cause.   I disagree with both of these holdings. * * *  Congress has determined that regulation and supervision of safety in the workplace furthers an important public interest and that the power to conduct warrantless searches is necessary to accomplish the safety goals of the legislation.   In assessing the public interest side of the Fourth Amendment balance, however, the Court today substitutes its judgment for that of Congress on the question of what inspection authority is needed to effectuate the purposes of the Act.   The Court states that if surprise is truly an important ingredient of an effective, representative inspection program, it can be retained by obtaining ex parte warrants in advance.   The Court assures the Secretary that this will not unduly burden enforcement resources because most employers will consent to inspection.

The Court's analysis does not persuade me that Congress' determination that the warrantless-inspection power as a necessary adjunct of the exercise of the regulatory power is unreasonable.   It was surely not unreasonable to conclude that the rate at which employers deny entry to inspectors would increase if covered businesses, which may have safety violations on their premises, have a right to deny warrantless entry to a compliance inspector.   The Court is correct that this problem could be avoided by requiring inspectors to obtain a warrant prior to every inspection visit.   But the adoption of such a practice undercuts the Court's explanation of why a warrant requirement would not create undue enforcement problems.   For, even if it were true that many employers would not exercise their right to demand a warrant, it would provide little solace to those charged with administration of OSHA;  faced with an increase in the rate of refusals and the added costs generated by futile trips to inspection sites where entry is denied, officials may be compelled to adopt a general practice of obtaining warrants in advance.   While the Court's prediction of the effect a warrant requirement would have on the behavior of covered employers may turn out to be accurate, its judgment is essentially empirical.   On such an issue, I would defer to Congress' judgment regarding the importance of a warrantless-search power to the OSHA enforcement scheme.

* * *  Even if a warrant requirement does not "frustrate" the legislative purpose, the Court has no authority to impose an additional burden on the Secretary unless that burden is required to protect the employer's Fourth Amendment interests.^[2] The essential function of the traditional warrant requirement is the interposition of a neutral magistrate between the citizen and the presumably zealous law enforcement officer so that there might be an objective determination of probable cause.   But this purpose is not served by the newfangled inspection warrant.   As the Court acknowledges, the inspector's "entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises.  . . .   For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based  . . .  on a showing that 'reasonable legislative or administrative standards for conducting an  . . .  inspection are satisfied with respect to a particular [establishment].' "  Ante, at 1824.   To obtain a warrant, the inspector need only show that "a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources  . . .."  Ante, at 1825.   Thus, the only question for the magistrate's consideration is whether the contemplated inspection deviates from an inspection schedule drawn up by higher level agency officials.

Unlike the traditional warrant, the inspection warrant provides no protection against the search itself for employers who the Government has no reason to suspect are violating OSHA regulations.   The Court plainly accepts the proposition that random health and safety inspections are reasonable.   It does not question Congress' determination that the public interest in workplaces free from health and safety hazards outweighs the employer's desire to conduct his business only in the presence of permittees, except in those rare instances when the Government has probable cause to suspect that the premises harbor a violation of the law.

What purposes, then, are served by the administrative warrant procedure?  The inspection warrant purports to serve three functions:  to inform the employer that the inspection is authorized by the statute, to advise him of the lawful limits of the inspection, and to assure him that the person demanding entry is an authorized inspector.  Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930.   An examination of these functions in the OSHA context reveals that the inspection warrant adds little to the protections already afforded by the statute and pertinent regulations, and the slight additional benefit it might provide is insufficient to identify a constitutional violation or to justify overriding Congress' judgment that the power to conduct warrantless inspections is essential.

The inspection warrant is supposed to assure the employer that the inspection is in fact routine, and that the inspector has not improperly departed from the program of representative inspections established by responsible officials. But to the extent that harassment inspections would be reduced by the necessity of obtaining a warrant, the Secretary's present enforcement scheme would have precisely the same effect. * * * 

The other two asserted purposes of the administrative warrant are also adequately achieved under the existing scheme.   If the employer has doubts about the official status of the inspector, he is given adequate opportunity to reassure himself in this regard before permitting entry.   The OSHA inspector's statutory right to enter the premises is conditioned upon the presentation of appropriate credentials.  29 U.S.C. §  657(a)(1).   These credentials state the inspector's name, identify him as an OSHA compliance officer, and contain his photograph and signature.   If the employer still has doubts, he may make a toll-free call to verify the inspector's authority.  Usery v. Godfrey Brake & Supply Service, Inc., 545 F.2d 52, 54 (CA 8 1976), or simply deny entry and await the presentation of a court order.

The warrant is not needed to inform the employer of the lawful limits of an OSHA inspection.   The statute expressly provides that the inspector may enter all areas in a covered business "where work is performed by an employee of an employer," 29 U.S.C. §  657(a)(1), "to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner  . . .  all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein  . . . ."  29 U.S.C. §  657(a)(2).   See also 29 CFR §  1903 (1977).   While it is true that the inspection power granted by Congress is broad, the warrant procedure required by the Court does not purport to restrict this power but simply to ensure that the employer is apprised of its scope.   Since both the statute and the pertinent regulations perform this informational function, a warrant is superfluous.

Requiring the inspection warrant, therefore, adds little in the way of protection to that already provided under the existing enforcement scheme.   In these circumstances, the warrant is essentially a formality.   In view of the obviously enormous cost of enforcing a health and safety scheme of the dimensions of OSHA, this Court should not, in the guise of construing the Fourth Amendment, require formalities which merely place an additional strain on already overtaxed federal resources.

* * *   The case before us involves an attempt to conduct a warrantless search of the working area of an electrical and plumbing contractor.   The statute authorizes such an inspection during reasonable hours.   The inspection is limited to those areas over which Congress has exercised its proper legislative authority. The area is also one to which employees have regular access without any suggestion that the work performed or the equipment used has any special claim to confidentiality. Congress has determined that industrial safety is an urgent federal interest requiring regulation and supervision, and further, that warrantless inspections are necessary to accomplish the safety goals of the legislation.   While one may question the wisdom of pervasive governmental oversight of industrial life, I decline to question Congress' judgment that the inspection power is a necessary enforcement device in achieving the goals of a valid exercise of regulatory power.  I respectfully dissent.

FOOTNOTES

[1] In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized--

"(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer;  and

"(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee."

84 Stat. 1598, 29 U.S.C. §  657(a).

[2] When it passed OSHA, Congress was cognizant of the fact that in light of the enormity of the enforcement task "the number of inspections which it would be desirable to have made will undoubtedly for an unforeseeable period, exceed the capacity of the inspection force  . . . ."  Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess., 152 (Comm.Print 1971).

Here is an abstract from an article published in Science, a top scientific journal, written by two business school professors:

Controversy surrounds occupational health and safety regulators, with some observers claiming that workplace regulations damage firms’ competitiveness and destroy jobs and others arguing that they make workplaces safer at little cost to employers and employees. We analyzed a natural field experiment to examine how workplace safety inspections affected injury rates and other outcomes. We compared 409 randomly inspected establishments in California with 409 matched-control establishments that were eligible, but not chosen, for inspection. Compared with controls, randomly inspected employers experienced a 9.4% decline in injury rates (95% confidence interval = –0.177 to –0.021) and a 26% reduction in injury cost (95% confidence interval = –0.513 to –0.083). We find no evidence that these improvements came at the expense of employment, sales, credit ratings, or firm survival.

David I. Levine, Michael W. Toffel, Matthew S. Johnson, “Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss,” 336 Science 907-911 (2012)

This Citation and Notification of Penalty (this Citation) describes violations of the Occupational Safety and Health Act of 1970. The penalty(ies) listed herein is (are) based on these violations. You must abate the violations referred to in this Citation by the dates listed and pay the penalties proposed, unless within 15 working days (excluding weekends and Federal holidays) from your receipt of this Citation and Notification of Penalty you mail a notice of contest to the U.S. Department of Labor Area Office at the address shown above. Please refer to the enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and which should be read in conjunction with this form. Issuance of this Citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless this Citation is affirmed by the Review Commission or a court.

Posting - The law requires that a copy of this Citation and Notification of Penalty be posted immediately in a prominent place at or near the location of the violation(s) cited herein, or , if it is not practicable because of the nature of the employer's operations, where it will be readily observable by all affected employees. This Citation must remain posted until the violation(s) cited herein has (have) been abated, or for 3 working days (excluding weekends and Federal holidays), whichever is longer. The penalty dollar amounts need not be posted and may be marked out or covered up prior to posting.

'Informal Conference - An informal conference is not required. However, if you wish to have such a conference you may request one with the Area Director during the 15 working day contest period. During such an informal conference you may present any evidence or views which you believe would support an adjustment to the citation(s) and/or penalty(ies).

If you are considering a request for an informal conference to discuss any issues related to this Citation and Notification of Penalty, you must take care to schedule it early enough to allow time to contest after the informal conference, should you decide to do so. Please keep in mind that a written letter of intent to contest must be submitted to the Area Director within 15 working days of your receipt of this Citation. The running of this contest period is not interrupted by an informal conference.

If you decide to request an informal conference, please complete, remove and post the page 3 Notice to Employees next to this Citation and Notification of Penalty as soon as the time, date, and place of the informal conference have been determined.  Be sure to bring to the conference any and all supporting documentation of existing conditions as well as any abatement steps taken thus far. If conditions warrant, we can enter into an informal settlement agreement which amicably resolves this matter without litigation or contest.

Right to Contest - You have the right to contest this Citation and Notification of Penalty. You may contest all citation items or only individual items. You may also contest proposed penalties and/or abatement dates without contesting the underlying violations. Unless you inform the Area Director in writing that vou intend to contest the citation(s) and/or proposed penalty(ies) within 15 working days after receipt, the citation(s) and the proposed penalty(ies) will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by anv court or agency.

Penalty Payment - Penalties are due within 15 working days of receipt of this notification unless contested. (See the enclosed booklet and the additional information provided related to the Debt Collection Act of 1982.) Make your check or money order payable to "DOL-OSHA". Please indicate the Inspection Number on the remittance.

OSHA does not agree to any restrictions or conditions or endorsements put on any check or money order for less than the full amount due, and will cash the check or money order as if these restrictions, conditions, or endorsements do not exist.

The law also requires a copy of all abatement verification documents, required by 29 CFR 1903.19 to be sent to OSHA, also be posted at the location where the violation appeared and the corrective action took place.

Employer Discrimination Unlawful- The law prohibits discrimination by an employer against an employee for filing a complaint or for exercising any rights under this Act. An employee who believes that he/she has been discriminated against may file a complaint no later than 30 days after the discrimination occurred with the U.S. Department of Labor Area Office at the address shown above.

Employer Rights and Responsibilities- The enclosed booklet (OSHA 3000) outlines additional employer rights and responsibilities and should be read in conjunction with this notification.

Notice to Employees - The law gives an employee or his/her representative the opportunity to object to any abatement date set for a violation if he/she believes the date to be unreasonable. The contest must be mailed to the U.S. Department of Labor Area Office at the address shown above and postmarked within 15 working days (excluding weekends and Federal holidays) of the receipt by the employer of this Citation and Notification of Penalty.

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U.S. Department of Labor

Occupational Safety and Health Administration

NOTICE TO EMPLOYEES OF INFORMAL CONFERENCE

An informal conference has been scheduled with OSHA to discuss the citation(s) issued on 08/23/2010. The conference will be held at the OSHA office located at Suite A, 5807 Breckenridge Parkway, Tampa, FL, 33610 on                        at                    _  Employees and/or representatives of employees have a right to attend an informal conference.

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U.S. Department of Labor

Occupational Safety and Health Administration

Citation and Notification of Penalty

Inspection Number:   314336850

Inspection Dates:02/24/20 I0- 08/23/20 I0

Issuance Date: 08/23/2010

Company Name:     Sea World of Florida LLC

Inspection Site:        7007 Sea Harbor Drive, Orlando, FL 32821

Citation 1 Item 1 Type of Violation:    Serious

29 CFR 1910.23(d)(J)(iii): Flight(s) of stairs with 4 or more risers, less than 44 inches wide and having both sides open were not equipped with one standard stair railing on each side:

Instance a) Employees were exposed to a 10'3" fall hazard in that, a stairway railing system was not installed on the front side left bridge of the Believe stage in Shamu Stadium.

Instance b) Employees were exposed to a 10'3" fall hazard in that, a stairway railing system was not installed on the front side right bridge of the Believe stage in Shamu Stadium

See pages 1 through 3 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities.

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U.S. Department of Labor

Occupational Safety and Health Administration

Citation and Notification of Penalty

Inspection Number:   314336850 Inspection Dates:02/24/2010-08/23/2010 Issuance Date:                               08/23/2010

Company Name:     Sea World of Florida LLC

Inspection Site:        7007 Sea Harbor Drive, Orlando, FL 32821

Citation 2 Item 1 Type of Violation:    Willful

Section 5(a)(l) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that:

a) At the Shamu Stadium pools, animal trainers working with Tilikum, a killer whale with known aggressive tendencies and who was involved in the 1991 death of a whale trainer at a marine park in Vancouver, British Columbia, were exposed to struck-by and drowning hazards in that they were allowed unprotected contact with Tilikum while conducting "drywork" performances on pool ledges, slideouts and platforms, on or about 2/24/2010.

Among other methods, one feasible and acceptable means of abatement would be to not allow animal trainers to have any contact with Tilikum unless they are protected by a physical barrier

b) At the Shamu Stadium pools, animal trainers working with killer whales other than Tilikum were exposed to struck-by and drowning hazards in that they were allowed to engage in "waterwork" and "drywork" performances with the killer whales without adequate protection, on or about 2/24/2010.

Among other methods, feasible and acceptable means of abatement would prohibit animal trainers from working with killer whales, including "waterwork" or "dry work", unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems or other engineering or administrative controls that provide the same or a greater level of protection for the trainers.

ABATEMENT DOCUMENTATION REQUIRED 09/02/2010

Date By Which Violation Must be Abated:

Proposed Penalty: $    70000.00

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U.S. Department of Labor

Occupational Safety and Health Administration

Citation and Notification of Penalty

Inspection Number: 314336850 InspectionDates:02/24/2010-08/23/2010

Issuance Date:                                08/23/2010

Company Name:     Sea World of Florida LLC

Inspection Site:        7007 Sea Harbor Drive, Orlando, FL 32821

Citation 3 Item 1 Type of Violation:    Other

29 CPR 1910.305(j)(2)(v): Receptacle installed outdoors in a location protected from the weather or in other damp locations shall have an enclosure for the receptacle that is weatherproof when the receptacle is covered (attachment plug cap not inserted and receptacle covers closed).

a) At the Sharnu Stadium, weather proof enclosures were missing from electrical receptacles located within the main Shamu Stadium, observed on or about 3/5/2010.

ABATEMENT  DOCUMENTATION REQUIRED

Date By Which Violation Must be Abated: 09/25/2010 

Proposed Penalty: $         0.00

See pages 1 through 3 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities.

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U.S. Department of Labor

Occupational Safety and Health Administration Suite A

5807 Breckenridge Parkway

Tampa, FL 33610

Phone: 813-626-1177 FAX: 813-626-7015

INVOICE/ DEBT COLLECTION NOTICE

Company Name: Sea World of Florida LLC

Inspection Site:  7007 Sea Harbor Drive, Orlando, FL 32821 

Issnanee Date:08/23/2010

Snmmary of Penalties for Inspection Number  314336850

To avoid additional charges, please remit payment promptly to this Area Office for the total amount of the uncontested penalties summarized above. Please make your check or money order payable to:

"DOL-OSHA", and submit to 5807 Breckenridge Parkway, Suite A, Tampa, FL 33610-4249. Please indicate OSHA's Inspection Number (indicated above) on the remittance.

OSHA does not agree to any restrictions or conditions or endorsements put on any check or money order for less than full amount due, and will cash the check or money order as if these restrictions, conditions, or endorsements do not exist.

If a personal check is issued, it will be converted into an electronic fund transfer (EFT). This means that our bank will copy the check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will then usually occur with 24 hours and will be shown on your regular account statement. You will not receive your original check back. The bank will destroy your original check, but will keep a copy of it. If the EFT cannot be completed because of insufficient funds or closed account, the bank will attempt to make the transfer up to two (2) times.

Pursuant to the Debt Collection Act of 1982 (Public Law 97-365) and regulations of the U.S. Department of Labor (29 CFR Part 20), the Occupational Safety and Health Administration is required to assess interest, delinquent charges, and administrative costs for the collection of delinquent penalty debts for violations of the Occupational Safety and Health Act.

Interest. Interest charges will be assessed at an annual rate determined by the Secretary of the Treasury on all penalty debt amounts not paid within one month (30 calendar days) of the date on which the debt amount becomes

due and payable (penalty due date). The current interest rate is four percent (4%). Interest will accrue from the date on which the penalty amounts (as proposed or adjusted) become a final order of the Occupational Safety and Health Review Commission (that is, 15 working days from your receipt of the Citation and Notification of Penalty), unless you file a notice of contest. Interest charges will be waived if the full amount owed is paid within 30 calendar days of the final order.

Delinquent Charges. A debt is considered delinquent if it has not been paid within one month (30 calendar days) of the penalty due date or if a satisfactory payment arrangement has not been made. If the debt remains delinquent for more than 90 calendar days, a delinquent charge of six percent (6%) per annum will be assessed accruing from the date that the debt became delinquent.

Administrative Costs. Agencies of the Department of Labor are required to assess additional charges for the recovery of delinquent debts. These additional charges are administrative costs incurred by the Agency in its attempt to collect an unpaid debt. Administrative costs will be assessed for demand letters sent in an attempt to collect the unpaid debt.

Leshe L. Grove III

Area Director

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U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

GUIDELINES FOR PREPARING A NOTIFICATION OF CORRECTIVE ACTION

Notification of Corrective Action - For each violation which you do not contest, you are required by 29 CFR 1903.19 to submit an Abatement Certification to the Area Director of the OSHA office issuing the citation and identified above. The certification must be sent by you within 10 calendar days of the abatement date indicated on the citation.             

For Willful and Repeat violations, documents (examples: photos, copies of receipts, training records, etc.) demonstrating that abatement is complete must accompany the certification.                                                      

Where the citation is classified as Serious and the citations states that abatement documentation is required, documents such as those described above are required to be submitted along with the abatement certificate. If the citation indicates that the violation was corrected during the inspection, no abatement certification is required for that item.

All abatement verification documents must contain the following information: 1) Your name and address; 2) the inspection number (found on the front page); 3) the citation and citation item number(s) to which the submission relates; 4) a statement that the information is accurate; 5) the signature of the employer or employer's authorized representative; 6) the date the hazard was corrected; 7) a brief statement of how the hazard was corrected; and 8) a statement that affected employees and their representatives have been informed of tbe abatement.

The law also requires a copy of all abatement verification documents, required by 29 CFR 1903.19 to be sent to OSHA, also be posted at the location where the violation appeared and the corrective action took place.

Inspection Activity Data

You should be aware that OSHA publishes information on its inspection and citation activity on the Internet under the provisions of the Electronic Freedom of Information Act. The information related to your inspection will be available 30 calendar days after the Citation Issuance Date. You are encouraged to review the information concerning your establishment at WWW.OSHA.GOV. If you have any dispute with the accuracy of the information displayed, please contact this office.

NOTE: NON-CERTIFICATION OF ABATEMENT CAN RESULT IN ADDITIONAL PENALTIES BEING ASSESSED!

Please Reply To The Attention Of: Karen Stone Sea World of Florida LLC

7007 Sea Harbor Drive,

Orlando, FL 3282

The hazard referenced in Inspection Number 314336850 for the violation identified as:

EXAMPLE:    Citation No. 1, Item 1, Instance (a) was corrected on January 1, 2001, by installing a lower blade guard on the Radial Arm Saw.

The hazard referenced in Inspection Number                               for the violation identified as Citation and Item _________ was corrected on _________    by the following method:                                                                                                                                  _

The hazard referenced in Inspection Number                                for the violation identified as

Citation                          and Item                           was corrected on                                        by the following method: 

__________________________________________________________

The hazard referenced in Inspection Number                                for the violation identified as

Citation   ___________   and Item   ______________   was corrected on __________                          by the following method:                                                                                                                  _

The hazard referenced in Inspection Number                               for the violation identified as

Citation                          and Item                           was corrected on                                        by the following method: 

__________________________________________________

The hazard referenced in Inspection Number                               for the violation identified as

Citation  ___________   and Item   _____________   was corrected on _____________

by the following method:                                                                                                                  _

I attest that the information contained in this document is accurate and that the affected employees and their representatives have been informed of the abatement activities described in this certification.

Signature

This Citation and Notification of Penalty (this Citation) describes violations of the Occupational Safety and Health Act of 1970. The penalty(ies) listed herein is (are) based on these violations. You must abate the violations referred to in this Citation by the dates listed and pay the penalties proposed, unless within 15 working days (excluding weekends and Federal holidays) from your receipt of this Citation and Notification of Penalty you either call to schedule an informal conference (see paragraph below) or you mail a notice of contest to the U.S. Department of Labor Area Office at the address shown above. Please refer to the enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and which should be read in conjunction with this form. Issuance of this Citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless this Citation is affirmed by the Review Commission or a court.

Posting - The law requires that a copy of this Citation and Notification of Penalty be posted immediately in a prominent place at or near the location of the violation(s) cited herein, or, if it is not practicable because of the nature of the employer's operations, where it will be readily observable by all affected employees. This Citation must remain posted until the violation(s) cited herein has (have) been abated, or for 3 working days (excluding weekends and Federal holidays), whichever is longer.

Informal Conference - An informal conference is not required. However, if you wish to have such a conference you may request one with the Area Director during the 15 working day contest period. During such an informal conference you may present any evidence or views which you believe would support an adjustment to the citation(s) and/or penalty(ies).

If you are considering a request for an informal conference to discuss any issues related to this Citation and Notification of Penalty, you must take care to schedule it early enough to allow time to contest after the infonnal conference, should you decide to do so. Please keep in mind that a written letter of intent to contest must be submitted to the Area Director within 15 working days of your receipt of this Citation. The running of this contest period is not interrupted by an infon11al conference.

If you decide to request an informal conference, please complete, remove and post the Notice to Employees next to this Citation and Notification of Penalty as soon as the time, date, and place of the infon11al conference have been determined. Be sure to bring to the conference any and all supporting documentation of existing conditions as well as any abatement steps taken thus far. If conditions warrant, we can enter into an informal settlement agreement which amicably resolves this matter without litigation or contest.

Right to Contest - You have the right to contest this Citation and Notification of Penalty. You may contest all citation items or only individual items. You may also contest proposed penalties and/or abatement dates without contesting the underlying violations. Unless you inform the Area Director in writing that you intend to contest th·e citation{s) and/or proposed penalty(ies) within 15 working days after receipt, the citation{s) and the proposed penalty(ies) will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or agency.

Penalty Payment - Penalties are due within 15 working days of receipt of this notification unless contested. (See theenclosed booklet and the additional information provided related to the Debt Collection Act of 1982.) Make your check or money order payable to "DOL-OSHA". Please indicate the Inspection Number on the remittance. You can also make your payment electronically on www.pay.gov. On the left side of the pay.gov homepage, you will see an option to Search Public Fon11s. Type "OSHA"and click Go. From the results, click on OSHA Penalty Payment Form. The direct link is: https://wwv.;.pay.gov/paygov/forms/formlnstance.html?agencyFormid=53090334.

You will be required to enter your inspection number when making the payment. Payments can be made by credit card or Automated Clearing House (ACH) using your banking information. Payments of $25,000 or more require a Transaction ID, and also must be paid using ACH. If you require a Transaction ID, please contact the OSHA Debt Collection Team at (202) 693-2170.

OSHA does not agree to any restrictions or conditions or endorsements put on any check, money order, or electronic payment for less than the full amount due, and will process the payments as if these restrictions or conditions do not exist.

Notification of Corrective Action - For each violation which you do not contest, you must provide abatement certificatio11 to the Area Director of the OSHA office issuing the citation and identified above. This abatement certification is to be provided by letter within l O calendar days after each abatement date. Abatement ce1tification includes the date and method of abatement. If the citation indicates that the violation was corrected· during the inspection, no abatement certification is required for that item. The abatement certification letter must be posted at the location where the violation appeared and the corrective action took place or employees must otherwise be effectively informed about abatement activities. A sample abatement certification letter is enclosed with this Citation. In addition, where the citation indicates that abatement documentation is necessary, evidence of the purchase or repair of equipment, photographs or video, receipts, training records, etc., verifying that abatement has occurred is required to be provided to the Area Director.

Employer Discrimination Unlawful - The law prohibits discrimination by an employer against an employee for filing a complaint or for exercising any rights under this Act. An employee who believes that he/she has been discriminated against may file a complaint no later than 30 days after the discrimination occurred with the U.S. Department of Labor Area Office at the address shown above.

Employer Rights and Responsibilities -The enclosed booklet (OSHA 3000) outlines additional employer rights and responsibilities and shoul_d be read in conjunction with this notification.

Notice to Employees -The law gives an employee or his/her representative the opportunity to object to any abatement date set for a violation if he/she believes the date to be unreasonable. The contest must be mailed to the U.S. Department of Labor Area Office at the address shown above and postmarked within 15 working days (excluding weekends and Federal holidays) of the receipt by the employer of this Citation and Notification of Penalty.

Inspection Activity Data - You should be aware that OSHA publishes information on its inspection and citation activity on the lntemet under the provisions of the Electronic Freedom of Information Act. The information related to these alleged violations will be posted when our system indicates that you have received this citation. You are encouraged to review the information concerning your establishment at www.osha.gov. If you have any dispute with the accuracy of the information displayed, please contact this office.

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U.S. .Department of Labor

Occupational Safety and Health Administration

NOTICE TO EMPLOYEES OF INFORMAL CONFERENCE

An informal conference has been scheduled with OSHA to discuss the citation(s) issued on 07/21/2016. The conference will be held by telephone or at the OSHA office located at 1851 Executive Center Drive, Suite 227, Jacksonville, FL 32207 on                                       at

                                     . Employees and/or representatives of employees have a right to attend an informal conference.

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CERTIFICATION OF CORRECTIVE ACTION WORKSHEET

Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060 Issuance Date: 07/21/2016

Inspection Number: 1122733

List the specific method of correction for each item on this citation in this package that does not read "Corrected During Inspection" and return to: U.S. Department of Labor - Occupational Safety and Health Administration, 1851 Executive Center Drive, Suite 227, Jacksonville, FL 32207

Citation Number --

and Item Number --

was corrected on ---------------

By (Method of Abatement):                                                                          

Citation Number --        and Item Number --

was corrected on ---------------

By (Method of Abatement): ______________________________________

Citation Number         

and Item Number ______________

was corrected on ___________

By (Method of  Abatement):                                                                                      

Citation Number  ____________           

and Item Number _______________

Was corrected on _______________

by (Method of Abatement): ___________________________________

Citation Number  ____________           

and Item Number _______________

Was corrected on _______________

by (Method of Abatement): ___________________________________

Citation Number  ____________           

and Item Number _______________

Was corrected on _______________

by (Method of Abatement): ___________________________________

I ce1iify that the information contained in this document is accurate and that the affected employees and their representatives have been informed of the abatement.

Signature                                                                                             Date

NOTE: 29 USC 666(g) whoever knowingly makes any false statements, representation or.certification in any application, record, plan or other documents filed or required to be maintained pursuant to the Act shall, upon conviction, be punished by a fine of not more than

$10,000 or by imprisonment ofnot more than 6 months or both.

POSTING: A copy of completed Corrective Action Worksheet should be posted for employee review

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U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/20 I6 - 03/28/2016

Issuance Date: 07/2I/2016

Citation and Notificlltion of Penalty

Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 1     Type of Violation: Serious

OSH ACT of 1970 Section (5)(a)(l ): The employer did not furnish employment and a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that the employer delayed evaluation, care, and/or treatment from a medical provider, which could result in health hazards such as, but not limited to, increased risk of further injury, prolonged healing, exacerbation of pain, and limited recqvery from work-related injuries/illnesses that required medical treatment and for failing to take appropriate steps to ensure injured employees were adequately protected from the workplace conditions which could delay healing or exacerbate the injury:

a) On or about February 1, 2016 and at times prior, throughout the processing plant, the employer failed to make timely appropriate medical referrals for employees with injuries related to chronic and acute exposures and incidents, heavy lifting and persistent and continuous pain in the upper extremities to prevent the development and/or minimize the severity of musculoskeletal disorders (MSDs). The employees are exposed to ergonomic risk factors such as but not limited to rapid and repetitive hand and wrist motions, repetitive heavy lifting, forceful hand exertions, static postures and cold temperatures. The employees are also exposed to injuries which include burns, loss of consciousness, and blunt-force trauma which require appropriate evaluation and treatment.

In accordance with 29 CFR 1903.19(d), abatement certification is required for this violation. This documentation may include, but is not limited to, evidence of the purchase or repair of the equipment, photographic or video evidence of abatement, or other written records.

Among other methods, feasible and useful methods of correction would include, but are not limited to: I) Consult with a physician who is Board Certified in Occupational Medicine to evaluate the medical management program and make recommendations concerning structure,- staffing, supervision, documentation, medical directives/protocols, and evaluation/quality assurance; 2) Enhance onsite medical management screening and assessment to assure appropriate identification of symptoms associated with potential early-stage musculoskeletal disorders or, actual musculoskeletal disorders, or traumatic injuries to allow for early and appropriate medical interventions and/or job modifications (such as increased recovery time; rotation to tasks using other muscle groups, different forces or actions, alternate or improved tools, workstation modification); 3) Ensure that healthcare providers' instructions and work restrictions for injured employees shall be followed by plant supervision to prevent progression of injury and allow healing; 4) Provide ergonomics training on the specific risk factors in poultry processing for onsite occupational health staff and provide accurate ergonomic assessments for each line position that medical staff may use to identify appropriate or job modification to prevent progression of injury; 5) Conduct an annual (at a minimum) review of trends in the nurses log and recommend changes in the protocol based on the trends; 6) Educate hourly employees on early recognition ofMSD symptoms and encourage reporting of signs and symptoms; 7) Review Florida State law regarding nursing and paramedic scopes of practice and other requirements to ensure that the staffing and practices of their Occupational Health Services meet legal requirements; 8) The medical directives/protocols should be updated to meet current standards of medical care and should be regularly reviewed by the Occupational Medicine physician at least annually. Specific issues to be addressed include: a) Early referral to a physician or other higher level provider for definitive evaluation and treatment of injuries; b) In cases where the First Aid Room (FAR) staff determines that a worker does not need immediate physician evaluation, the worker should be evaluated by a physician within a few days, particularly if symptoms continue and/or positive examination findings are present. c) Decrease in the use of NSAIDs for pain treatment and consideration of other pain medications, such as acetaminophen as medically appropriate; d)Education of workers on adverse effects ofNSAIDs and any other medication being provided in the FAR; 9) Translation services should be provided by an outside professional medical translation service to prevent language being a barrier to care; 10) OSHA 300 logs, first aid logs and other medical records, such as workers compensation records, should be regularly evaluated for the purpose of identifying workplace hazards, instituting interventions to reduce hazards and evaluating the effectiveness of the intervention The occupational medicine consultant should participate in this review; 11) Training of the Occupational Health Services staff, supervisors and workers should be conducted to include: a) Identification of musculoskeletal symptoms related to ergonomic hazards; b) Early reporting of musculoskeletal symptoms, injuries, and illnesses; c) Effective communication approaches to encourage early reporting; 12) Occupational Health Service staff should review documentation standards for both licensed practical nurses (National Federation of Licensed Practical Nurses, Inc's Nursing Practice Standards, 2003; National Association for Practical Nurse Education and Service, Inc's Standards of Practice, 2007) and paramedics (Florida Department of State, Administrative Code, Emergency Medical Services: Rule 64J-1.0032009 and Emergency Medical Services: Rule 641-1.014) and ensure that all assessments, treatments, and evaluations provided in the FAR are recorded and complete.

ABATEMENT DOCUMENTATION REQUIRED FOR TIDS ITEM

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U.S. Department of Labor                        Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/0I/2016 - 03/28/2016

lssunnce Dute: 07/2I/2016

Citation and Notification of Penalty

Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Date By Which Violation Must be Abated:  09/07/2016

Proposed Penalty: $7000.00

U.S. Department of Labor                        Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penalty

Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 2    Type of Violation: Serious

OSH ACT of 1970 Section (5)(a)(l): Section 5(a)(l) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to slip and fall hazards while carrying heavy objects using portable stepladders:

1. On or about February 1, 2016, in the evisceration area, the employer did not ensure that portable ladders were used properly, in that employees carrying heavy objects with one hand could not maintain a firm hold on the ladder, exposing them to fall hazards.

In accordance with 29 CFR 1903.19(d), abatement certification is required for this violation. This documentation may include, but is not limited to, evidence of the purchase or repair of the equipment, photographic or video evidence of abatement, or other written records.

Among other methods, feasible and acceptable means of abatement include, but are not limited to the following:

1. To perform a job hazard analysis of the
2. To ensure that employees do not handle heavy objects while ascending or descending portable ladders, as referenced in ANSI 5 -2000, Section 9.
3. To ensure this is a two employee task, and the only task for the user of the ladder is to hand down the fan to another person on the g
4. To ensure a mobile scaffold, such as but not limited to a scissor lift or similar mobile scaffold, is

used for this and/or similar tasks.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated:  08/16/2016

Proposed Penalty: $5500.00

U.S. Department of Labor                       lnspecti n Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/0I/2016 - 03/28/2016

Issuance Date: 07/2I/2016

Citation and Notification of Penalty

Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation I Item 3    Type of Violation: Serious

OSH ACT of 1970 Section (5)(a)(l ): The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to a laceration and amputation hazard:

1. a. On or about March 18, 2016, in the evisceration area, at the right end of the heart and liver hang conveyor of the number l production line, employees working on and around the USDA inspection area were exposed to an amputation hazard at the in-going shear point of the conveyor and the guide pla

Feasible means of abatement include, but are not limited to the following:

1. Installation of a guard plate or grating cover at the ingoing shear point of the conveyor and guide plate

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated: Proposed Penalty:

08/16/2016

$4400.00

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penaltyy Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 4    Type of Violation: Serious

29 CFR 1910.22(b)(l): Aisles and passageways were not kept clear and in good repair, with no obstruction across or in aisles that could create a hazard.

1. On or about March 22, 2016, in Ammonia Engine Room # l, the upper platform by the Chiller Surge Drum had the wooden platform decking deteriorated and rotted, exposing refrigeration technicians servicing the condensers to a 12 feet fall hazard.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated: Proposed Penalty:

08/16/2016

$7000.00

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/20 I6 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penalty Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 5     Type of'Violation: Serious

29 CFR 1910.37(a)(3): Exit route(s) were not kept free and unobstructed:

1. On or about March 17, 2016, between packaging lines #12 and 13, the exit route was obstructed by a diagonal metal chute that was Sft-1lin on its highest point, exposing employees to a struck-by hazard.

Date By Which Violation Must be Abated: Proposed Penalty:

Corrected During Inspection

$5500.00

e

U.S. Department of Labor                        Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/0I/2016 - 03/28/2016

Issuance Date: 07/2l/2016

Citation and Notification of Penalty Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

The alleged violations below have been grouped because they involve similar or related hazards that may increase the potential for injury or illness.

Citation 1 Item 6 a Type of Violation: Serious

29 CFR 1910.141(a)(3)(ii): Floor(s) of workroom(s) were not maintained, so far as practical, in a dry condition:

1. On or about March 25, 2016, in the front line area close to Evisceration, the ladies restroom had stagnant water and was always wet, exposing employees to slip and fall hazards.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated: Proposed Penalty:

08/16/2016

$3300.00

U.S. Department of Labor            Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/20 I6 - 03/28/2016

Issuance Date: 07/2I/2016

Citation and Notification of Penal_!Y Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

• -

Citation 1 Item 6 b Type of Violation: Serious

29 CFR 1910.141(a)(3)(iii): Floor(s), working place(s), and passageway(s) were not kept free from protruding nails, splinters, loose boards, and unnecessary holes and openings to facilitate cleaning:

1. On or about Mach 16, 2016, in the knife room, the concrete floor in th_e working area was not even in that it had an opening measuring about 3-feet long and 6-inches in the widest section, exposing employees to trip and fall hazards.

Date By Which Violation Must be Abated:                          Corrected During Inspection

e              -

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/20 I6 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penal.!Y, Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

The alleged violations below have been grouped because they involve similar or related hazards that may increase the potential for injury or illness.

Citation 1 Item_7 a Type of Violation: Serious

29 CFR 1910.146(d)(l): Under the permit-required confined space program required by 29 CFR 1910.146(c)(4), the employer did not implement the measures necessary to prevent unauthorized entry:

1. On or about March 18, 2016, the entrance doors to the tunnel blast freezer were not marked with warning signs to prevent unauthorized entry into the permit required confined space containing ammonia refrigeration equipment and a sub-freezing

Date By Which Violation Must be Abated: Proposed Penalty:

Corrected During Inspection

$4675.00

-             -

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/20I6 - 03/28/2016

Issuance Date: 07/2I/2016

Citation and Notification of Penal,!y Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 It m 7 b Type of Violation: Serious

29 CFR 1910.146(d)(6): Under the permit-required confined space program required by 29 CFR 1910.146(c)(4), the employer did not provide at least one attendant outside the permit space into which entry was authorized for the duration of entry operations:

1. On or about March 15, 2016, at the -30 degree blast tunnel freezer, authorized entrant maintenance employees who enter the permit required confined space containing ammonia refrigeration equipment and a sub-freezing atmosphere for maintenance were not provided an outside attendan

Date By Which Violation Must be Abated:                                 Corrected During Inspection

-

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Datc(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/2I/2016

Citation and Notification of Penalty Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation I Item 7 c Type of Violation: Serious

29 CFR1910.l46(e)(l): Before entry was authorized, the employer did not document the completion of measures required by 29 CFR 1910.146(d)(3) by preparing an entry permit:

1. On or about March I 5, 2016, the employer did not document completion of entry permits for authorized entrant employees who entered the tunnel freezer permit required confined space containing ammonia refrigeration equipment and a sub-freezing atmosphere to perform maintenance and clear jams.

Date By Which Violation Must be Abated:                                 Corrected During Inspection

-

U.S. Department of Labor                        Inspection Number: I122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penal_ty Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 8     Type of Violation: Serious

29 CFR 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:

1. On or about February 2, 2016, the employer did not enforce the use of lockout/tagout procedures during sanitation work on poultry equipment with potential to release hazardous energy, exposing employees to caught-in and amputation hazards.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated: Proposed Penalty:

08/16/2016

$7000.00

-          -

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/20 I6

Citation and Notification of Penal.!,y Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 9      Type of Violation: Serious

29 CFR 1910.147(c)(7)(i)(C): Employees whose work operations were in an area where energy control procedures were utilized were not instructed about the procedure:

1. On or about February 2, 2016, in first and second processing areas, the employer did not ensure that sanitation employees were properly trained in the specific procedures for the control of hazardous energy on poultry processing equipment, exposing them to caught-in and amputation hazards.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated: Proposed Penalty:

08/16/2016

$7000.00

-          -

U.S. Department of Labor                        lnspcclion Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Dnle: 07/21/2016

Citation and Notification of Penalty Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 10  Type of Violation: Serious

29 CFR 1910.178(p)(l): Powered industrial truck(s) found to be in need of repair, defective, or in any way unsafe had not been taken out of service until restored to safe operating condition(s):

1. On or about March 15, 2016, in the Live Shed Area, the Moffet forklift had a defective backup alarm, exposing employees walking through the area to struck-by hazards.

Date By Which Violation Must be Abated: Proposed Penalty:

Corrected During Inspection

$4400.00

-             -

U.S. Department of Labor                       Inspection Number: .I122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penal_!y Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 1 Item 11 Type of Violation: Serious

29 CFR 1910.253(b)(4)(i): Oxygen cylinders were stored near highly combustible material, especially oil and grease; or near reserve stocks of carbide and acetylene or other fuel-gas cylinders, or near another substance likely to cause or accelerate fire; or in an acetylene generator compartment:

1. On or about March 16, 2016, in the forklift repair area, the oxygen and acetylene cylinders for a torch not used were not separated and stored at least 20 feet apart, exposing employees to a fire hazard.

Date By Which Violation Must be Abated: Proposed Penalty:

Corrected During Inspection

$4400.00

-             -

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016- 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penalty Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 2 Item 1     Type of Violation: Other-than-Serious

29 CFR 1910.212(a)(l): One or more methods of machine guarding was not provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks:

1. On or about March 17, 2016, in the Overwrap area, the OSSID #11 was missing the right side cover of the overwrap machine, exposing employees to the moving and rotating parts of the

1. On or about March 17, 2016, in the Overwrap area, the OSSID #4 had the front guarding cover of the overwrap machine broken with a hole measuring 11" long and 4" wide, exposing employees to the moving and rotating parts of the machine.

Date By Which Violation Must be Abated: Proposed Penalty:

Corrected During Inspection

$0.00

0

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penal,!y Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 2 Item 2_    Type of Violation: Other-than-Serious

29 CFR l 910.334(a)(2)(i): Portable cord and plug connected equipment and flexible cord sets (extension cords) were not visually inspected before use on any shift for external defects (such as loose parts, deformed and missing pins, or damage to outer jacket or insulation) and for evidence of possible . internal damage (such as pinched or crushed outer jacket):

1. On or about March 16, 2016, in the WPL Stack off Area, the Milwaukee portable band saw being used to cut metal was defective in that it was missing the ground pin, exposing employees to electrical hazards.

Date By Which Violation Must be Abated: Proposed Penalty:

Corrected During Inspection

$0.00

U.S. Department of Labor                       Inspection Number: 1122733

Occupational Safety and Health Administration Inspection Date(s): 02/01/2016 - 03/28/2016

Issuance Date: 07/21/2016

Citation and Notification of Penal!,y Company Name: Pilgrim's Pride Corporation

Inspection Site: 19740 U.S. Highway 90, Live Oak, FL 32060

Citation 2 Item 3     Type of Violation: Other-than-Serious

29 CFR 1910.l 200(h)(l ): Employees were not provided effective information and training on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard that the employees had not been previously trained about was introduced into their work area:

1. On or about March 17, 2016, in the Overwrap area, MST employees of the second shift assigned to perform sanitation duties on OSSID overwrap machines had not being trained by the employer on the hazards associated with the chemicals they were using, exposing employees to chemical injuries and illness.

ABATEMENT DOCUMENTATION REQUIRED FOR THIS ITEM

Date By Which Violation Must be Abated: Proposed Penalty:

08/16/2016

$1100.00

4a«4-R

Brian J. Sturtecky

Area Director

C)

U.S. Department of Labor

Occupational Safety and Health Administration 185 l Executive Center Drive

Suite 227

Jacksonville, FL 32207 •

Phone: 904-232-2895 Fax: 904-232-1294

INVOICE/

DEBT COLLECTION NOTICE

Company Name: Inspection Site: Issuance Date:

Pilgrim's Pride Corporation

19740 U.S. Highway 90, Live Oak, FL32060 07/21/2016

To avoid additional charges, please remit payment promptly to this Area Office for the total amount of the uncontested penalties summarized above. Make your check or money order payable to: "DOL-OSHA". Please indicate OSHA's Inspection Number (indicated above) on the remittance. You can also make your payment

electronically on www.pay.gov. On the left side of the pay.gov homepage, you will see an option to Search Public Forms. Type "OSHA"and click Go. From the results, click on OSHA Penalty Payment Form. The 1

direct link is https://www.pay.gov/paygov/forms/forminstance.html?agencyFonnid=53090334.  You will be required to enter your inspection number when making the payment. Payments can be made by credit card or Automated Clearing House (ACH) using your banking information. Payments of $25,000 or more require a Transaction ID, and also must be paid using ACH. If you require a Transaction ID, please contact the OSHA Debt Collection Team at (202) 693-2170.

OSHA does not agree to any restrictions or conditions or endorsements put on any check, money order, or electronic payment for less than the full amount due, and will cash the check or money order as if these restrictions or conditions do not exist.

If a personal check is issued, it will be converted into an electronic fund transfer (EFT). This means that our bank will copy your check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will then usually occur within 24 hours and will be shown on your regular account statement. You will not receive your original check back. The bank will destroy your original check, but will keep a copy of it. If the EFT cannot be completed because of insufficient funds or closed

e

account, the bank will attempt to make the transfer up to 2 times.

Pursuant to the Debt Collection Act of 1982 (Public Law 97-365) and regulations of the U.S. Department of Labor (29 CFR Part 20), the Occupational Safety and Health Administration is required to assess interest, delinquent charges, and administrative costs for the collection of delinquent penalty debts for violations of the Occupational Safety and Health Act.

lnterest: Interest charges will be assessed at an annual rate determined by the Secretary of the Treasury on all penalty debt amounts not paid within one month (30 calendar days) of the date on which the debt amount becomes due and payable (penalty due date). The current interest rate is one percent (I%). Interest will accrue from the date on which the penalty amounts (as proposed or adjusted) become a final order of the Occupational Safety and Health Review Commission (that is, 15 working days from your receipt of the Citation and Notification of Penalty), unless you file a notice of contest. Interest charges will be waived if the full amount owed is paid within 30 calendar days of the final order.

Delinquent Charges:A debt is considered delinquent if it has not been paid within one month (30 calendar days) of the penalty due date or if a satisfactory payment arrangement has not been made. If the debt remains delinquent for more than 90 calendar days, a delinquent charge of six percent (6%) per annum will be assessed accruing from the date that the debt became delinquent.

Administrative Costs:Agencies of the Department of Labor are required to assess additional charges for the recovery of delinquent debts. These additional charges are administrative costs incurred by the Agency in its attempt to collect an unpaid debt. Administrative costs will be assessed for demand letters sent in an attempt to collect the unpaid debt.

Brian .J. Sturtccky

Area Director

This Citation and Notification of Penalty (this Citation) describes violations of the Occupational Safety and Health Act of 1970. The penalty(ies) listed herein is (are) based on these violations. You must abate the violations referred to in this Citation by the dates listed and pay the penalties proposed, unless within 15 working days (excluding weekends and Federal holidays) from your receipt of this Citation and Notification of Penalty you either call to schedule an informal conference (see paragraph below) or you mail a notice of contest to the U.S. Department of Labor Area Office at the address shown above. Please refer to the enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and which should be read in conjunction with this form. Issuance of this Citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless this Citation is affirmed by the Review Commission or a court.

Posting - The law requires that a copy of this Citation and Notification of Penalty be posted immediately in a prominent place at or near the location of the violation(s) cited herein, or, if it is not practicable because of the nature of the employer's operations, where it will be readily observable by all affected employees. This Citation must remain posted until the violation(s) cited herein has (have) been abated, or for 3 working days (excluding weekends and Federal holidays), whichever is longer.

Informal Conference - An informal conference is not required. However, if you wish to have such a conference you may request one with the Area Director during the 15 working day contest period. During such an informal conference you may present any evidence or views which you believe would support an adjustment

to the citation(s) and/or penalty(ies).

If you are considering a request for an infonnal conference to discuss any issues related to this Citation and Notification of Penalty, you must take care to schedule it early enough to allow time to contest after the infonnal conference, should you decide to do so. Please keep in mind that a written letter of intent to contest must be submitted to the Area Director within 15 working days of your receipt of this Citation. The running of this contest period is not interrupted by an informal conference.

If you decide to request an informal conference, please complete, remove and post the Notice to Employees next to this Citation and Notification of Penalty as soon as the time, date, and place of the informal conference have been determined. Be sure to bring to the conference any and all supporting documentation of existing conditions as well as any abatement steps taken thus far. If conditions warrant, we can enter into an informal settlement agreement which amicably resolves this matter without litigation or contest.

Right to Contest - You have the right to contest this Citation and Notification of Penalty. You may contest all citation items or only individual items. You may also contest proposed penalties and/or abatement dates without contesting the underlying violations. Unless you inform the Area Director in writing that vou intend to contest the citation(s) and/or proposed penaltv(ies) within 15 working days after receipt, the citation(s) and the proposed penalty(ies) will become a final order of the Occupational Safetv and Health Review Commission and may not be reviewed by any court or agencv.

Penalty Payment - Penalties are due within 15 working days of receipt of this notification unless contested. (See the enclosed booklet and the additional information provided related to the Debt Collection Act of 1982.) Make your check or money order payable to "DOL-OSHA". Please indicate the Inspection Number on the remittance. You can also make your payment electronically on www.pay.gov. On the left side of the pay.gov homepage, you will see an option to Search Public Forms. Type "OSHA." and click Go. From the results, click on OSHA. Penalty Payment Form. The direct link is:

https://v-.rww.pay.gov/paygov/forms/forminstance.html?agencyFormid=53090334.

You will be required to enter your inspection number when making the payment. Payments can be made by credit card or Automated Clearing House (ACH) using your banking information. Payments of $25,000 or more require a Transaction ID, and also must be paid using ACH. If you require a Transaction ID, please contact the OSHA Debt Collection Team at (202) 693-2170.

OSHA does not agree to any restrictions or conditions or endorsements put on any check, money order, or electronic payment for less than the full amount due, and will process the payments as if these restrictions or conditions do not exist.

Notification of Corrective Action -For each violation which you do not contest, you must provide abatement certification to the Area Director of the OSHA office issuing the citation and identified above. This abatement certification is to be provided by letter within 10 calendar days after each abatement date. Abatement certification includes the date and method of abatement. If the citation indicates that the violation was corrected during the inspection, no abatement certification is required for that item. The abatement certification letter must be posted at the location where the violation appeared and the corrective action took place or employees must otherwise be effectively informed about abatement activities. A sample abatement certification letter is enclosed with this Citation. In addition, where the citation indicates that abatement documentation is necessary, evidence of the purchase or repair of equipment, photographs or video, receipts, training records, etc., verifying that abatement has occurred is required to be provided to the Area Director.

Employer Discrimination Unlawful-The law prohibits discrimination by an employer against an employee for filing a complaint or for exercising any rights under this Act. An employee who believes that he/she has been discriminated against may file a compiaint no later than 30 days after the discrimination occurred with the U.S. Department of Labor Area Office at the address shown above.

Employer Rights and Responsibilities     The enclosed booklet (OSHA 3000) outlines additional employer rights and responsibilities and should be read in conjunction with this notification.

Notice to Employees - The law gives an employee or his/her representative the opportunity to object to any abatement date set for a violation if he/she believes the date to be unreasonable. The contest must be mailed to the U.S. Department of Labor Area Office at the address shown above and postmarked within 15 working days (excluding weekends and Federal holidays) of the receipt by the employer of this Citation and Notification of Penalty.

Inspection Activity Data - You should be aware that OSHA publishes information on its inspection and citation activity on the Internet under the provisions of the Electronic Freedom oflnformation Act. The information related to these alleged violations will be posted when our system indicates that you have received this citation. You are encouraged to review the information concerning your establishment at www.osha.gov. If you have any dispute with the accuracy of the information displayed, please contact this office.

------------------------------------------------- Page break

U.S. Department of Labor

Occupational Safety and Health Administration

NOTICE TO EMPLOYEES OF INFORMAL CONFERENCE

An informal conference has been scheduled with OSHA to discuss the citation(s) issued on

11/12/2015. The conference will be held by telephone or at the OSHA office located at 639 Granite Street, 4th Floor, Braintree, MA 02184 on-------------------------- at                                      . Employees and/or representatives of employees have a right to attend an informal conference.

---------------------- Page break

CERTIFICATION OF CORRECTIVE ACTION WORKSHEET

Inspection Number: 1064720 Company Name: Wyndham Hoteis and Resorts, LLC, dba Wyndham Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, MA 02114

Issuance Date: 11/12/2015

List the specific method of correction for each item on this citation in this package that does not read "Cori:ected During Inspection" and return to: U.S. Department of Labor - Occupational Safety and Health Administration, 639 Granite Street, 4th Floor, Braintree, MA 02184

Citation Number            and Item Number

^{was corrected on}----------------

By (Method of Abatement):                                                                     

Citation Number           and Item Number

^{was corrected on}----------------

By (Method of Abatement):                                                                     

Citation Number            and Item Number

was corrected on ----------------

By (Method of Abatement):

Citation Number            and Item Number

was corrected on ----------------

By (Method of Abatement): 

Citation Number           and Item Number

^{was corrected on}----------------

By (Method of Abatement):

Citation Number            and Item Number

was corrected on ----------------

By (Method of Abatement):

I certify that the information contained in this document is accurate and that the affected employees and their representatives have been informed of the abatement.

Signature                                                                                             Date t

typed or Printed Name                                                     Title

NOTE: 29 USC 666(g) whoever knowingly makes any false statements, representation or certification in any application, record, plan or other documents filed or required to be maintained pursuant to the Act shall, upon conviction, be punished by a fine of not more than

$10,000 or by imprisonment of not more than 6 months or both.

POSTING: A copy of completed Corrective Action Worksheet should be posted for employee review

-----------------------------page break

Inspection Number: 1064720

Inspection Date(s): 05/18/2015 - 07/23/2015

Issuance Date: 11/12/2015

Citation and Notification of Penalty

 Company Name: Wyndham Hotels and Resorts, LLC, dba Wyndham Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, MA 02114

The alleged violations below have been grouped because they involve similar or related hazards that may increase the potential for injury or illness.

Citation 1 Item 1 a Type of Violation: Serious

29 CFR 1910.132(d)(l): The employer did not assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE):

Establishment:

Employer's PPE assessment did not include all elements required by this section such as:

1. Selecting, and having each affected employee using, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment;
2. Communicating selection decisions to each affected employee; and,
3. Selecting PPE that properly fits each affected

The PPE assessment did not include specific PPE that would adequately protect body parts such as the hands and arms of the employees who were exposed to:

1. hazardous cleaning products such as heavy duty alkaline bathroom cleaner containing ethylenediamine tetraacetate and ammonium chloride, Ecolab anti-bacterial multi-purpose cleaner containing ammonium chloride, Lysol multi-purpose foam cleaner containing diethylene glycol monobutyl ether and ammonium chloride, Laundry Sour containing formic acid, Eco-Star Destainer containing sodium hypochlorite, Solar Brite laundry detergent containing Stain Blaster Multi-Use cleaner containing petroleum distillates and potassium hydroxide, and Stainblaster Destainer cleaner containing sodium hypochlorite;
2. biological hazards such as body fluids found on linens and towels and surfaces and in trash and trash receptacles and contact with used needles and other sharps devices; physical hazards such as lacerations and puncture wounds from contact with used needles and other sharps devices; See pages 1 through 4 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities,

Citation and Notification of Penaltv

Inspection Number: 1064720

Inspection Date(s): 05/18.12015 - 07/23/2015

Issuance Date: 11/12/2015

Company Name: Wyndham Hotels and Resorts, LLC, dba Wyndhan1 Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, :tv1A 02114

Employer provided Ambitex latex gloves (3-4 millimeter thickness) which tore easily and did not provide adequate protection against the listed chemicals and incidental exposure to body fluids. Appropriate gloves are those that provide sufficient durability against physical hazards, and sufficient resistance against chemical and biological hazards.

Date By Which Violation Must be Abated: Proposed Penalty:

01/05/2016

$6000.00

---------------- page break

See pages 1 through 4 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities.

n,,.,,.,,.,. .. i-.,... ,,.i- l'T ,,.1-.. ­

..e...P\..,pa,1. i.J!.Jl..ll..-i.Jie. UJ. JL.Ja.UUJ.

()ccupational Safety and Health i\dministration

Citation and Notification of Penalty

Inspection Number: 1064720

Inspection Date(s): 05/18/2015 - 07/23/2015 Issuance Date: 11/12/2015

Company Name: Wyndham Hotels and Resorts, LLC, dba Wyndham Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, l\1A 02114

Citation 1 Item 1 b Type of Violation: Serious

29 CFR 1910.138(b): The employer did not base selection of appropriate hand protection on an evaluation of the performance characteristics of the hand protection relative to the tasks to be performed, conditions present, duration of use, and the hazards and potential hazards identified:

Establishment: Employer did not provide and make available adequate gloves and in the appropriate sizes to employees performing work activities such as:

1. Employees who perform housekeeping of interior spaces such as guest rooms and rooms utilized for sleep studies, and use hazardous cleaning products such as heavy duty alkaline bathroom cleaner containing ethylenediamine tetraacetate and a.r1unoniu..rn cJ.,Joride, Ecolab anti-bacterial multi-pU..'])OSe cleaner containing am1nonium chloride, and Lysol multi-pwpOSe foam cleaner containing diethylene glycol monobutyl ether and ammonium chloride;

1. Employees who perform housekeeping of interior spaces such as guest rooms and rooms utiiized for sleep studies and clean surfaces and handle bed linens and towels that contain body fluids;

1. Employees who remove linens and towels that contain body fluids from rooms;

1. Employees who remove used needles and other sharps devices from rooms and public restrooms and public areas;

1. Employees who launder items such as contaminated bed linens and towels, and handle hazardous laundry cleaning products such as Laundry Sour containing formic acid, Eco-Star Destainer containing sodium hypochlorite, Solar Brite laundry detergent containing Stain Blaster Multi-Use cleaner containing petroleum distillates and potassium hydroxide, and Stainblaster Destainer cleaner containing sodium hypochlorite;

1. Employees who launder items such as bed linens and towels that are soiled with body fluids;

Employer provided Ambitex latex gloves (3-4 millimeter thickness) which tore easily and did not provide adequate protection against the listed chemicals, incidental exposure to body fluids and caused

See pages I through 4 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities. Citation and Notification of Penalty                                                             Page 8 of 13                                                                  0SHA-2

U.S. Department of Labor                         Tm:pPl'tinn Nmnh<>r•  1 Qf;Ll.770

Occupational Safety and Health Administration fospectfon Date(s): 05/18/2015 - 07/23/2015

Issuance Date: 11/12/2015

Citation and Notification of Penalty

Company Name: Wyndham Hotels and Resorts, LLC, dba Wyndham Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, :rv1A. 02114

rashes in employees who had latex allergies. Appropriate gloves are those that provide sufficient durability against physical hazards, sufficient resistance against chemical and biological hazards and prevent latex allergies.

Date By Which Violation Must be Abated:                                                                 01/05/2016

---------------------------- page break

See pages I through 4 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities. Citation and Notification of Penalty                                                                Page 9 of 13                                                                     OSHA-2

U.S. Department of Labo:r                       Inspection Number: l 064720

Occupational Safety and Health Administration fospecfom Date(s): 05/18/2015 - 07/23/2015

Issuance Date: 11/12/2015

Citation and Notification of Penaltv

Company Name: Wyndham Hotels and Resorts, LLC, dba Wyndham Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, M.A 02114

Citation 1 Item 2     Type of Violation: Serious

29 CFR 1910.132(£)(1): The employer did not provide training to each employee required to use Personal Protective Equipment that covered when PPE is necessary, what PPE is necessary, how to don, doff, adjust and wear PPE, the limitations of PPE and the proper care, maintenance, useful life and disposal of the PPE:

Establishment: The employer did not provide training to employees who were exposed to hazards that require the use of PPE:

1. hazardous cleaning products such as heavy duty alkaline bathroom cleaner containing ethylenediamine tetraacetate .11d aJ1L.1nonium chloride, Ecolab anti-bacterial multi-purpose cleaner containing ammonium chloride, Lysol multi-purpose foam cleaner containing diethylene glycol monobutyl ether and ammonium chloride, Laundry Sour containing formic acid, Eco-Star Destainer containing sodilL. hJ1pocrJorite, Solar Brite laundry detergent contairtlng Stai1i Blaster !v1ulti-Use cleaner containing petroleum distillates and potassium hydroxide, and Stainblaster Destainer cleaner containing sodium hypochlorite;

1. biological hazards such as body fluids found on linens and towels and surfaces and in trash and trash receptacles and contact with used needles and other sharps devices;

1. physical hazards such as lacerations and puncture wounds from contact with used needles and other sharps devices.

Date By Which Violation Must be Abated: Proposed Penalty:

01/05/2016

$6000.00

------------------------------ page break

See pages I through 4 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities. Citation and Notification of Penalty                                                 Page !0of13                                                                      OSHA-2

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Occupational Safety and Heaith P.--.dministration

Citation and Notificat!on of Penalty

Inspection Number: 1064720

Inspection Date(s): 05./18/2015 - 07/23/2015

Issuance Date: 11/12/2015

Company Name: Wyndham Hotels and Resorts, LLC, dba Wyndham Boston Beacon Hill

Inspection Site: 5 Blossom Street, Boston, MA 02114

Citation 2 Item 1    Type ofViolation: Other-than-Serious

29 CFR 1910.1030(d)(4)(iv)(A)(2): Contaminated laundry was not placed and/or transported in bags or containers which were labeled or color-coded in accordance with 29 CFR 1910.1030(g)(l)(i):

Establishment:

Employer did not ensure that bags or containers which were labeled or color-coded in accordance with 29 CFR 1910.1030(g)(l)(i) were readily available in appropriate sizes and ensure that employees place contaminated laundry such as bed linens, bed pads and blankets in these containers at the location where it was used.

Date By Which Violation Must be Abated: Proposed Penalty:

01/05/2016

$0.00

Kenneth Shedden

Area Director

---------------------------------- page break

See pages 1 through 4 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities.

U.S. Department of Labor

Occupational Safety and Health Administration 639 Granite Street

4th Floor

Braintree, MA 02184

Phone: 617-565-6924  Fax: 617-565-6923

INVOICE/

DEBT COLLECTION NOTICE

Company Name: Inspection Site: Issuance Date:

Wyndham Hotels and Resorts, LLC, dba Wyndham Boston Beacon Hill 5 Blossom Street, Boston, MA 02114

11/12/2015

To avoid additional charges, please remit payment promptly to this Area Office for the total amount of the uncontested penalties summarized above. Make your check or money order payable to: "DOL-OSHA". Please indicate OSHA's Inspection Number (indicated above) on the remittance. You can also make your payment electronically on www.pay.gov. On the left side of the pay.gov homepage, you will see an option to Search Public Forms. Type "OSHA" and click Go. From the results, click on OSHA Penalty Pavment Form. The direct link is https://www.pay.gov/paygov/forms/forminstance.html?agencyFormid=53090334.  You will be required to enter your inspection number when making the payment. Payments can be made by credit card or

Automated Clearing House (ACH) using your banking information. Payments of $25,000 or more require a Transaction ID, and also must be paid using ACH. If you require a Transaction ID, please contact the OSHA Debt Collection Team at (202) 693-2170.

OSHA does not agree to any restrictions or conditions or endorsements put on any check, money order, or electronic payment for less than the full amount due, and will cash the check or money order as if these restrictions or conditions do not exist.

If a personal check is issued, it will be converted into an electronic fund transfer (EFT). This means that our bank will copy your check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will then usually occur within 24 hours and will be shown on your regular account statement. You will not receive your original check back. The bank will destroy your original check, but will keep a copy of it. If the EFT cannot be completed because of insufficient funds or closed

account, the bank will attempt to make the transfer up to 2 times.

Pursuant to the Debt Collection Act of 1982 (Public Law 97-365) and regulations of the U.S. Department of Labor (29 CFR Part 20), the Occupational Safety and Health Administration is required to assess interest, delinquent charges, and administrative costs for the <.:ollection of delinquent penair-y debts for violations of the Occupational Safety and Health Act.

Interest: Interest charges will be assessed at an annual rate determined by the Secretary of the Treasury on all penalty debt amounts not paid within one month (30 calendar days) of the date on which the debt amount becomes due and payable (penalty due date). The cun-ent interest rate is one percent (1%). Interest will accrue from the date on which the penalty amounts (as proposed or adjusted) become a final order of the Occupational Safety and Health Review Commission (that is, 15 working days from your receipt of the Citation and Notification of Penalty), unless you file a notice of contest. Interest charges will be waived if the full amount owed is paid within 30 calendar days of the final order.

Delinquent Charges: A debt is considered delinquent if it has not been paid within one month (30 calendar days) of the penalty due date or if a satisfactory payment arrangement has not been made. If the debt remains delinquent for more than 90 calendar days, a delinquent charge of six percent (6%) per annum will be assessed accruing from the date that the debt became delinquent.

Administrative Costs: Agencies of the Department of Labor are required to assess additional charges for the recove1y of delinquent debts. These additional charges are administrative costs incun-ed by the Agency in its attempt to collect an unpaid debt. Administrative costs will be assessed for demarid letters sent in an attempt to collect the unpaid debt.

Kenneth Shedden

Area Director

Aerospace Testing Alliance, Inc. (“ATA”) petitions for review of a final agency decision of the Occupational Safety and Health Review Commission finding an other-than-serious violation and assessing a $1,400 fine. An Administrative Law Judge (“ALJ”) found that by failing to provide a guard for two lathes at its facility, ATA had violated a standard promulgated pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78. ATA petitions for review, arguing that substantial evidence did not support the Commission’s decision, that the ALJ failed to properly apply guidance documents issued by the Occupational Safety and Health Administration, and that the ALJ improperly rejected ATA’s “greater hazard” defense. For the following reasons, we deny ATA’s petition for review.

On May 12, 2008, the Occupational Safety and Health Administration (“OSHA”) inspected ATA’s workplace at the Arnold Engineering Development Center Air Force Base in Tullahoma, Tennessee. Following the inspection, OSHA issued a citation and notification of penalty based on a failure to provide proper guards on two lathes in violation of 29 C.F.R. § 1910.212(a)(1)… 

On November 14, 2008, a hearing was held on the citation before an ALJ. At the hearing, six witnesses testified, two for OSHA and four for ATA. Michelle Stoak was the OSHA employee who performed the inspection. William Cochran was the area director of the local OSHA office who attended the inspection of ATA to evaluate Stoak. ATA first called Catherine Plunkett, the director of the safety and health group at ATA who testified about ATA’s efforts at finding a satisfactory lathe guard. Supervisor Greg Otwell, a long-term employee, testified briefly about historical efforts of ATA to find guards for the lathes. ATA’s next witness was Scott Pogue, who was the machinist who most frequently used the lathes. Finally, Frank Kelly, a safety and health professional for ATA, testified about ATA’s response to the citation and its alleged inability to find a satisfactory guard.

Pogue testified that when he used the lathes, they rotated at a speed of 625 rpm or less…. The lathes are both manual lathes that are used for very precise work, such as making special thickness washers, and the work is precise to a level of “a couple ten-thousandths of an inch.” Due to the required precision, the work was done very close to the unguarded chucks. For the finest details, the jaws holding the piece the operator was working on protruded only two inches from the chuck, and the employee’s hands could be within two inches of the work. ATA admits that it is possible for an operator’s hands to come into contact with the face of the chuck. Cochran testified that “cuts, contusions, [and] potentially broken fingers” could result from coming into contact with “the key openings on the periphery of the chuck as well as the irregular shape of the jaws of the chuck.” Testimony from ATA’s employees downplayed the possibility of injuries, never suggesting broken fingers could occur. This testimony, however, was premised on the theory that employees complied with company procedure banning loose clothes, rings, and gloves while operating the lathes. No injury resulting from these lathes was put into the record, and Otwell testified that, to his knowledge, none had occurred.

[The lathes in question did not have guards when they were initially procured.]… In the early 1990s, an employer-wide movement to improve safety by placing guards on all rotating equipment led to the placement of guards on these two lathes. Otwell testified the guards were taken off after several years because of several “near misses.” The problems were that the guards blocked the operator’s vision and that if the operator got his hands too close to the chuck, the natural reaction was to “jerk back,” which would cause the operator to hit the shield and force his hands back towards the chuck. Otwell acknowledged that it would not have caused a “large injury” but thought it could cause “small abrasions.”

Following the citation, ATA experimented with a variety of lathe guards and found them unsatisfactory. Plunkett testified that the guards were not satisfactory because the guards could create a “pinch point” that would not otherwise exist if the hand could leave the area freely. Kelly testified that a guard could be safely placed around the periphery of the machines but that “the guard does not bring anything of value in mitigating or eliminating the hazards to the operations for which they utilize it.” Cochran, however, testified that guards exist for Harrison lathes generally and that while it was uncertain whether an exact guard existed for the lathes in question, “you could fabricate something like this or purchase something like this either from the manufacturer or from a machine-guarding company.” These proposed guards are “moveable barrier” guards that can be moved up and down as needed to allow the operator closer access to the machine as necessary for the detailed work performed on these lathes.

On February 22, 2009, the ALJ issued a decision and order affirming the violation as “other-than-serious” and assessing a $1,400 penalty. ATA submitted a petition for discretionary review to the OSHA Review Commission. The commission declined to review the ALJ’s decision and order. ATA filed a timely petition to this Court pursuant to 29 U.S.C. § 660(a).

 Standard of Review

In reviewing the Commission’s decision, we uphold the Commission’s findings of fact so long as they are supported by substantial evidence. CMC Elec., Inc. v. Occupational Safety and Health Admin., 221 F.3d 861, 865 (6th Cir.2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” National Engineering & Contracting Co. v. Herman, 181 F.3d 715, 721 (6th Cir.1999) (citations and quotations omitted). “The substantial evidence test protects both the factual findings and the inferences derived from them, and if the findings and inferences are reasonable on the record, they must be affirmed even if this court could justifiably reach a different result de novo.” Id. We affirm the Commission’s conclusions of law unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” CMC Elec., 221 F.3d at 865 (quoting 5 U.S.C. § 706(2)(A)).

Analysis

 ATA was accused of violating 29 C.F.R. § 1910.212(a)(1). That regulation deals with “machine guarding” and states that “[o]ne or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.” 29 C.F.R. § 1910.212(a)(1). To establish a violation of the Act, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies to the facts, (2) the requirements of the standard were not met, (3) employees had access to the hazardous condition, and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence. Carlisle Equipment Co. v. United States Secretary of Labor, 24 F.3d 790, 792 (6th Cir.1994).

ATA’s primary contention is that the Commission has adopted a position that fails to actually prove a violation. ATA claims the Commission has only shown that the face of the chuck leads to injuries, while a guard is only feasible over the periphery of the chuck. This is simply not correct. The ALJ clearly found that the periphery of the chuck posed a danger, and this conclusion is supported by substantial evidence. The ALJ noted testimony from Kelly that “it is possible for an employee’s hand to come in contact with the face of the chuck while performing this work.” The very next sentence of the ALJ’s opinion states: “Employees work within inches of the periphery of the chucks.” Furthermore, ample testimony was provided that long hair, jewelry, or loose clothes could be caught in the periphery. ATA’s own protocols appear to recognize this potential risk because jewelry, long hair, and loose clothing is already forbidden. When Kelly testified that guards around the periphery would not serve a purpose, he presumed the employee had “no loose clothing, no jewelry, no long hair, no things that would actually spin into and get caught around that chuck.” 

The fact that the employees are trained and prohibited from wearing loose clothing and jewelry does not mean that the rules will always be followed or that a mistake will not be made. The Secretary notes that Plunkett, an ATA employee, acknowledged that ninety percent of accidents occur because of “operator error, operator attitude or a person did something that put themselves in harm’s way.” The relevant regulation calls for “one or more methods of machine guarding” to protect the operator. Petitioner’s own witness admitted that a guard could be fashioned to at least protect against contact with the chuck periphery. Kelly testified: “A different guard that is thinner, that does not come out over what we call the point of operation but strictly is over the periphery of the chuck itself, that would not create any kind of additional hazard.” Kelly also testified that it would not provide any benefit, but the ALJ disagreed, and substantial evidence supports that determination. Since the periphery can be safely guarded, the fact that ATA has additional safety precautions does not excuse compliance with binding regulations. For these reasons, substantial evidence supports the finding of a violation.

At a minimum, ATA has the responsibility to guard the periphery of the chuck, which would support the Commission’s finding of the other-than-serious violation and the $1,400 penalty. The ALJ’s opinion itself primarily stands for this limited proposition. The most aggressive the ALJ gets in guarding other parts of the machine is acknowledging Cochran’s testimony that “a guard previously attached to the lathe by Respondent could be modified to cover the periphery and the irregular shaped jaws.” At oral argument, it appeared uncontested that the face of the chuck could not be entirely guarded. Some dispute remains about whether the jaws of the chuck could be safely guarded. The ALJ does not clearly articulate whether he believed OSHA or ATA’s witnesses on the feasibility of placing a guard over the jaws of the chuck. The ALJ appears to avoid this issue, dismissing ATA’s feasibility claim merely by citing Kelly’s testimony that a guard over the periphery is feasible. Since substantial evidence supports a finding that the periphery poses a danger, the petition for review is denied, and we need not reach the issue of the extent of what the guard should cover.  

… ATA also argues that it complied with the letter of interpretation by performing its own thorough evaluation. The letter of interpretation states: “All work-holding devices do not require guarding. Therefore, a thorough evaluation must be conducted of the work-holding devices.” ATA cites testimony by two employees, Plunkett and Kelly, that a “thorough evaluation” had been performed but that ATA concluded “that guards were unnecessary because they would not eliminate or mitigate the hazards presented by the actual uses of the lathes.” ATA also argues that it complied with a 2001 American National Standards Institute (“ANSI”) standard on the issue, focusing on the fact that the lathes at issue are manual rather than automatic. Section 6.1 of ANSI B11.6 calls for chuck guards “as required.” Section 8.1 notes that where an immediate or impending hazard exists an employer may provide

(a) guard(s);

(b) safeguarding device(s);

(c) awareness barriers and device(s);

(d) safe work procedures.

The selected means of safeguarding shall be consistent with identified hazards and their associated risks.

ATA’s reliance on the letter of interpretation and the ANSI standard is unavailing. Both of these cited standards indicate that a guard is not always required. Nobody argues that a guard is always required. The fact that guards are not always necessary does not mean that they are not necessary in this case. The Secretary has proved a violation of § 1910.212(a)(1) based on a showing that the periphery poses a danger, and ATA’s own admission that a guard could safely guard the periphery of the chuck. The logical flaw in ATA’s argument is the belief that ATA itself can always determine whether a guard is necessary. It cites to testimony from Kelly, its own employee, that the lathes are operated safely during the gauging process. The ANSI standard requires ATA to do an evaluation and determine whether a guard is necessary. If ATA makes the incorrect determination, it is not shielded from the clear commands of § 1910.212(a)(1) that require guarding merely because it conducted an evaluation. Such an exception to compliance with the regulation would effectively eviscerate it, allowing companies to perform “evaluations” that were immune from review by the Commission.

ATA’s petition must be denied because the Commission reasonably determined based on the evidence presented that the periphery of the chuck posed a danger. ATA itself admits that a guard covering the periphery is feasible. Therefore, the Commission’s determination that the failure to guard the periphery is an other-than-serious violation is supported by substantial evidence.

We acknowledge that since the face of the chuck cannot be guarded, the most serious danger these lathes present remains ever-present. What ATA has done, however, is to miss a smaller danger based on its determination that a more serious danger cannot be prevented. The Commission appears to have recognized this, downgrading the violation to “other-than-serious” and lowering the fine to $1,400. The decision that the failure to guard the periphery of the chuck violates 29 C.F.R. § 1910.212(a)(1), however, is undoubtedly supported by substantial evidence.

 ATA also argues that it satisfied the affirmative defense of “greater hazard.” OSHA regulations state that any machine guard “shall be such that it does not offer an accident hazard in itself.” 29 C.F.R. § 1910.212(a)(2). ATA argues that a guard would create “trapping points,” “nipping points,” and “shearing points” contrary to the ANSI standard which indicates that a manual tool indexer shall be safeguarded to protect against just such dangers.

ATA is likely precluded from making this argument because it failed to seek a variance from the requirements of the guarding standard. The Ninth Circuit has held that a petitioner’s “failure to seek a variance is sufficient alone to sustain the administrative law judge’s rejection of petitioner’s defense that available machine guards would have created a greater hazard than the unguarded [machine].” True Drilling Co. v. Donovan, 703 F.2d 1087, 1091 (9th Cir.1983). See also Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1116 (7th Cir.1982) (holding that “[i]f the greater hazard defense could be raised in an enforcement proceeding without first exhausting the variance procedure, employers would tend to bypass that procedure”); General Elec. Co. v. Secretary of Labor, 576 F.2d 558, 561 (3d Cir.1978) (finding that if “a ‘greater hazard’ defense is allowed at an enforcement proceeding without requiring initial resort to the variance procedures or a showing that such resort would be inappropriate, there would be little incentive for an employer to seek a variance under these circumstances”). This Court has never squarely decided this issue. In the context of a petitioner attempting to present an “impossibility” defense, we declined to decide whether exhausting the variance procedure “is required or is merely to be preferred” but in any event, “the fact remains that an employer which has not previously sought a variance or modification starts with a distinct disadvantage when it claims impossibility in an enforcement proceeding.” Diebold, Inc. v. Marshall, 585 F.2d 1327, 1339 (6th Cir.1978).

Even if we could reach the merits, the argument must fail because of Kelly’s unambiguous testimony. He testified that the periphery of the chuck could be safely protected. Therefore, once it is determined that the periphery poses a danger, it is certainly not a greater hazard to protect it. Substantial evidence supports the Commission’s determination that the periphery of the chuck poses a danger and that a guard over the periphery does not create an additional danger.

For the foregoing reasons, we deny ATA’s petition for review of the Commission’s finding of an other-than-serious violation.

Before Selya, Circuit Judge, Coffin and Bownes, Senior Circuit Judges.

Selya, Circuit Judge.

The petitioner, P. Gioioso & Sons, Inc. (Gioioso), seeks review of a final order of the  Occupational Safety and Health Review Commission (the Commission) determining that it violated the Occupational Safety and Health Act of 1970 (OSH Act), 19 U.S.C. § §  651-678 (1994).   The petition purports to raise six distinct objections to the Commission's order.   The Secretary of Labor (the Secretary) maintains that we lack jurisdiction to hear three of these objections because Gioioso failed to raise them when it petitioned the Commission for review of the hearing examiner's adverse decision.   The remaining objections, the Secretary tells us, are without force.

The jurisdictional question is new to this court.   We resolve it favorably to the Secretary and dispose of certain objections on that ground.   We deny the remnants of the petition on the merits.

1. THE STATUTORY SCHEME

Congress enacted the OSH Act "to assure so far as possible ... safe and healthful working conditions."  29 U.S.C. §  651(b).   The Act spins an intricate administrative web which, among other things, separates rulemaking, enforcement, and adjudication.  In general, the Secretary sets mandatory safety and health standards applicable to particular businesses. The Occupational Safety and Health Administration (OSHA) enforces those standards.   Citations issued in respect to alleged violations are adjudicated by the Commission.

The Commission operates in the first instance through administrative law judges (ALJs), who function as hearing officers.   After hearing a contested matter, the ALJ prepares a report.  A member of the Commission may direct review of a report on his own motion (as long as he does so within 30 days after the docketing date, or on application of an aggrieved party).  The instrument by which an aggrieved party solicits the Commission's attention is called a petition for discretionary review (PDR), and the party must file it within a prescribed 20- day period following the docketing date.  The ALJ's report becomes the final order of the Commission unless review is granted "on or before the thirtieth day following the [docketing] date." In other words, the Commission's failure to act on a PDR within the stipulated 30-day period is tantamount to a denial of review.

Regardless of whether a final order comes about through action or inaction on the Commission's part, an aggrieved party may seek judicial review of it in the appropriate court of appeals.

1. THE ORIGINS OF THE DISPUTE

Gioioso is in the construction industry, specializing in utilities.  Some time ago, it contracted with the Massachusetts Water Resources Authority (MWRA) to lay water lines in Winthrop, Massachusetts.   During a lengthy period beginning in 1993, it laid several thousand feet of pipe under or near the access road to MWRA's Deer Island work site.

In the course of its endeavors, Gioioso dug an 18-foot-long trench at the intersection of Shirley and Taft Avenues.   On October 6, 1994, Gioioso's foreman, Salvatore Santone, and a laborer, Fernando Camara, were standing in this trench.   At that moment, several OSHA compliance officers happened to pass by the work site.^[1] The meandering traffic afforded the compliance officers a clear view of the trench and one of their number, Edward Wells, did not like what he saw:  the trench's walls were unsloped and unsupported, the two workmen standing in the trench were visible only from the shoulders up, and a ten-foot section of cast metal pipe was suspended aloft from the bucket of a piece of heavy construction equipment located at one end of the trench.   Wells sounded the alarm (figuratively speaking) and the driver stopped the car.

One of Wells' colleagues, Patrick Griffin, exited the vehicle and hurried toward the trench.   Griffin noticed that the dangling pipe was connected to the bucket of a large excavating machine by only a single attachment point and watched as it rotated into a position parallel to the trench and directly over the workmen's heads.   When Griffin reached the trench, he discovered that it measured no less than six feet deep and four feet wide and had been dug in gravelly soil.   No trench box was in place to guard against a cave-in (although Santone claimed that he and Camara had been measuring the trench to ascertain if it could accommodate one).   Moreover, because the trench lay adjacent to the only road providing access to Deer Island, vibrations from traffic increased the risk of a cave-in.   A gas pipe, six inches in diameter, traversed the width of the trench.   Wells corroborated many of Griffin's observations.

In due course, OSHA issued citations alleging three serious violations (one of which the Secretary later withdrew) and a repeat violation.^[2]  The two serious violations (which we shall label "A" and "B") were as follows:

1926. Permitting employees to work beneath the suspended pipe in violation of 29 C.F.R. § 1926.651(e) (1996) (which instructs that "[n]o employee shall be permitted underneath loads handled by lifting or digging equipment").
1927. Permitting workers to use a ladder that did not extend at least three feet above the top of the trench in violation of 29 C.F.R. § 1926.1053(b)(1) (1996) (which directs that "[w]hen portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9m) above the upper landing").

The repeat violation (which we shall label "C") was as follows:

1926. Failing to provide an adequate protective system for workers in an unshored trench, in violation of 29 C.F.R. § 1926.652(a)(1) (1996) (which provides that, except when excavations are made entirely in stable rock or are less than five feet in depth, "[e]ach employee in an excavation shall be protected from cave-ins by an adequate protective system").

The petitioner filed a timely notice of contest.   At the outset of the hearing, [the ALJ] found that the violations had in fact occurred, accepted OSHA's characterizations of them, and imposed penalties of $1,600 for each of the two serious violations and $8,000 for the repeat violation.

Gioioso petitioned the Commission for discretionary review of the ALJ's decision.   Its PDR called attention to only three issues (described infra Part IV).   The PDR generated no interest and the ALJ's decision ripened into the Commission's final order. Gioioso then sought a judicial anodyne.

1. THE JURISDICTIONAL ISSUE

We turn first to the jurisdictional quandary.   In pressing its cause before this court, the petitioner raises not only the three issues which it enumerated in the PDR but also three additional issues… The question, then, is whether Gioioso's failure to press these points in the PDR constitutes a forfeiture of the right to bring them before a reviewing court.   We think that it does.

We begin with bedrock.   In the administrative state, exhaustion of administrative remedies is "generally required."  Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975).   * * * The OSH Act warmly embraces the exhaustion doctrine.   It provides in relevant part that persons such as Gioioso who are "adversely affected or aggrieved by an order of the Commission" may obtain judicial review in the "court of appeals for the circuit in which the violation is alleged to have occurred."  29 U.S.C. §  660(a).   The right to judicial review, however, is carefully cabined.  Congress specifically directed that "[n]o objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."  Id. The regulations complement the statute, explaining that  an aggrieved party's failure to file a PDR "may foreclose court review of the objections to the [ALJ's] decision."  29 C.F.R. §  2200.91(f).

* * * We believe it follows from the bifurcation of duties contained in the statutory scheme, as well as from plain meaning, that the OSH Act precludes judicial review of those objections not urged in front of the Commission.   To be specific, the OSH Act acknowledges the existence of two separate adjudicators--the Commission and the ALJs--and assigns very different responsibilities to each.   The Commission members, whom the President appoints based on their training, expertise, and experience, see 29 U.S.C. §  661(a), carry out the broad adjudicatory functions required by the OSH Act. Conversely, the ALJs' functions are case-specific.   This division of labor carries with it disparate responsibilities, leaving in the Commission's hands the task of ensuring the development of a cohesive body of decisional rules which comport with the objectives of the OSH Act.

Given this framework, we think that the wiser course is to construe the statute according to its letter.   Only if an issue is actually called to the attention of the Commission, through the PDR or by a Commission member's spontaneous initiative, will the Commission have the informed opportunity that Congress intended--a meaningful chance to correct a mistake before an order becomes final.   Thus, the model that Congress envisioned can function optimally only if the aggrieved party alerts the Commission to those issues which that party thinks are worthy of review.  

The language set forth in the OSH Act drives home the point.   While the statute recognizes the existence of both the Commission and the ALJs, compare §  661(a) with §  661(e), it specifically precludes judicial review of those issues which "h[ave] not been urged before the Commission."  * * *  The language of the statute is not only plain, but it is also fortified by the regulations * * *  Consistent with this conclusion, we next examine the PDR which Gioioso filed.   We find absolutely no reference in it either to the alleged mischaracterization of the ladder violation or to the supposedly excessive nature of the penalty assessments.   Because Gioioso failed to urge these objections before the Commission, we are without jurisdiction to entertain them. * * *

The upshot of the matter is simply this:  in order to effectuate the statute that Congress wrote and assure the efficiency, effectiveness, and autonomy of the administrative structure, an aggrieved party desiring to preserve an issue for judicial review must raise it before the ALJ, articulate it clearly in its PDR, and offer a modicum of developed argumentation in support of it. * * *    

Because the petitioner did not satisfy this criterion with respect to three of its six putative issues, we lack jurisdiction to hear those issues in this proceeding.

1. THE MERITS

* * *  We still must resolve the three preserved claims, namely, (1) whether substantial evidence supports the finding that the petitioner's employees worked below a suspended pipe (Violation A);  (2) whether the Commission erred in finding that the petitioner's employees were exposed to trench-related hazards without an adequate protection system (Violation C);  and (3) whether the record supports the rejection of the petitioner's unpreventable employee misconduct defense. We discuss each of these contentions separately, pausing first to delineate certain principles affecting the standard of appellate review.

1. Principles Affecting Review.

A reviewing court customarily defers to an agency's reasonable interpretation of a statute that it administers.  The impetus for deference escalates when the agency interprets its own regulations.   In the final analysis, a reviewing court should respect an agency's interpretation of its own regulation as long as the interpretation meshes sensibly with the regulation's language and purpose.  These principles apply to the regulations that the Secretary of Labor promulgated to implement the OSH Act. * * *  The Commission's findings of fact are conclusive as long as they are  "supported by substantial evidence on the record considered as a whole."  29 U.S.C. §  660(a).   * * *

1. Violation A.

The Commission found that Gioioso breached the excavation standard, 29 C.F.R. §  1926.651(e), which mandates that "[n]o employee shall be permitted underneath loads handled by lifting or digging equipment."   The petitioner assigns error.   We see none.

The citation underpinning Violation A states in relevant part that Gioioso's personnel "were exposed to serious injury while working in a trench in which a section of 12" water line was being lowered."   In adjudicating this citation, the ALJ credited the testimony of two compliance officers who described seeing a ten-foot section of cast metal pipe suspended from the bucket of an excavating machine by a chain sling.   As the pipe moved, it rotated around the single point of suspension and passed over the heads of the men who were working in the trench.   While the observations of the two compliance officers were not entirely congruent, the ALJ determined that the modest discrepancies in their accounts were easily explained by the officers' differing vantage points.   He also found that a photograph taken shortly thereafter corroborated their testimony.   Keeping in mind the frailty of Gioioso's rebuttal--its foreman, Santone, stated only that he did not recall the pipe passing overhead--there is no principled basis on which a court could justify substituting its judgment for the factfinder's.  

1. Violation C.

The Commission found that Gioioso failed to provide an adequate protective system within the trench, thereby violating 29 C.F.R. §  1926.652(a)(1).   The petitioner again spies error.   We do not.

It is undisputed that the petitioner neglected to furnish a support system, shield system, or other adequate safeguarding within the trench as required by 29 C.F.R. §  1926.652(c).   Additionally, the petitioner failed to comply with the provisions of 29 C.F.R. §  1926.652(b)(1)(i) (which delineates a protection option accomplished by the gradual sloping of the excavation's walls).   But the regulations exempt some unsloped excavations that are less than five feet in depth, and the petitioner seeks the shelter of this exemption.   The petitioner hypothesizes that its workers never were exposed to the hazards inherent in an excavation exceeding five feet in depth because they were standing on a pipe that traversed the width of the trench.   The ALJ rejected this defense:  although he believed it was unlikely that the workmen were standing on the floor of the trench when the compliance officers arrived, he found that "no matter where they were standing, [they] were still inside a trench that was not protected in accordance with §  1926.652(a)(1)."   We review this essentially legal judgment de novo.

In reaching this conclusion, the ALJ relied heavily on Ford Dev. Corp., 15 O.S.H. Cas. (BNA) 2003 (1992).   There, the employer claimed that its employees were supposed to stand on a pipe while in a trench, and that in so doing they effectively would be exposed to a depth of only 3.5 feet (the distance from the upper surface of the pipe to the top of  the trench).   The Commission rejected this argument.   * * *  The reasoning in Ford embodies a sensible construction of the regulation--and one that comports with its wording and purpose.   The safety standard is implicated by the depth of a particular trench, without regard to an individual worker's precise position in it.^[3] The notion that having workers stand on a laid pipe within a trench is a satisfactory method of protecting them from the risk of cave-ins is nonsense.   While the regulations are performance-oriented, they only allow employers to choose from a limited universe of acceptable procedures, not to jury-rig convenient alternatives and impose them on an imperiled work force.

We have said enough on this score.   Because the excavation regulation applies to the trench in question whereas the depth exception does not, the Commission's resolution of Violation C must stand.

1. Unpreventable Employee Misconduct.

The Commission rejected the petitioner's affirmative defense of unpreventable employee misconduct (the UEM defense).   The petitioner challenges this determination as a matter of law and as a matter of fact.   We reject both challenges.

The OSH Act requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards.   But if an employer lives up to that billing and an employee nonetheless fails to use proper equipment or otherwise ignores firmly established safety measures, it seems unfair to hold the employer liable.   To address this dilemma, both OSHRC and the courts have recognized the availability of the UEM defense.

The contours of the UEM defense are relatively well defined.   To reach safe harbor, an employer must demonstrate that it (1) established a work rule to prevent the reckless behavior and/or unsafe condition from occurring, (2) adequately communicated the rule to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule whenever employees transgressed it.  

The employer must shoulder the burden of proving all four elements of the UEM defense. Sustaining this burden requires more than pious platitudes:  "an employer must do all it feasibly can to prevent foreseeable hazards, including dangerous conduct by its employees."  General Dynamics, 599 F.2d at 458.

The mainstay of Gioioso's argument is that the ALJ unnecessarily required repetitive documentary proof referable to the UEM defense.   But this is smoke and mirrors; the record reveals quite clearly that the ALJ applied the appropriate legal standard in a wholly unremarkable way and found that the employer failed to carry the devoir of persuasion on both the implementation and enforcement components of the defense.   This deficit is fatal.   Even if an employer establishes work rules and communicates them to its employees, the defense of unpreventable employee misconduct cannot be sustained unless the employer also proves that it insists upon compliance with the rules and regularly enforces them

Contrary to the petitioner's insinuations, the ALJ did not presume to establish a per se rule requiring documentation.   Rather, he counted the absence of documentation against the proponent of the defense in the circumstances of this case.   We cannot fault this approach.   Given the nature of the issue, there is no reason why a factfinder must accept an employer's anecdotal evidence uncritically.   And in this instance, we agree with the ALJ that the absence of any vestige of documentary proof was not only a relevant datum but a telling one.

The petitioner also questions whether the Commission's rejection of its UEM defense is supported by substantial evidence in the record.   After giving due deference to the ALJ's credibility determinations, we conclude that the ruling passes muster.

While the record reflects that Gioioso made a meaningful effort to develop a satisfactory safety program, it is much less conclusive on the issues of implementation and enforcement.   The petitioner's best case is that it distributes safety manuals to all new employees;  that these manuals contain information regarding the lifting of loads, methods of trench protection, and the proper placement of ladders in trenches;  and that it supplements these materials in various ways.   The petitioner's safety chairman testified that the company sponsors weekly "toolbox talks" at its work sites, monthly safety meetings for supervisory personnel, and biennial safety seminars for all employees.   But this evidence left some fairly conspicuous gaps as to the content of the training exercises, who conducted each session, and who attended them.   Documentation--say, syllabi or attendance rosters--would have gone a long way toward filling these gaps, but the petitioner proffered none.   Absent such documentation, it cannot persuasively argue that it effectively communicated the rules to its employees.

The ALJ found most compelling the lack of any substantial evidence in the record that the petitioner effectively enforced its safety program.   It provided no evidence of unscheduled safety audits or mandatory safety checklists, and no documentation that it ever executed its four-tiered disciplinary policy.   This lacuna in the proof undermines its attempt to mount a viable UEM defense.   Even when a safety program is thorough and properly conceived, lax administration renders it ineffective (and, thus, vitiates reliance on the UEM defense).   See Brock, 818 F.2d at 1274, 1278 (in which the ALJ rejected a UEM defense when the employer could not produce records evidencing employees' receipt of safety manuals, the occurrence of safety meetings, and the like).

Brock also illustrates another point which has pertinence here.  The Brock court regarded the circumstances surrounding the actions of the employer's foreman as further evidence that the employer's program was lax. The case at hand is not dissimilar;  Santone, the petitioner's foreman, in effect acknowledged that his actions directly contravened the company's safety policies.   And while the petitioner argues that a foreman should not be regarded as a supervisor, the company's own safety manual identifies the foreman as the "safety foreman for his crew," instructs employees to "listen to your foreman" in respect to safety matters, and directs foremen (along with other company safety officers) to inspect work sites regularly and to enforce safety rules.   Seen in the context of these instructions, the foreman's breach of safety rules supplies the basis for an inference that the employer's implementation of safety procedures and/or its enforcement policies left something to be desired.   The same circumstance also buttresses the ALJ's finding that Gioioso's employees probably were unaware that a threat of disciplinary action existed for nonobservance of safety rules.

Finally, it bears mentioning that one of the violations (Violation C) is a repeat violation.   Recent violations provide some evidence of ineffective safety enforcement.  See Jensen Constr.   Co., 7 O.S.H. Cas. at 1479 & nn. 5-6.   The ALJ was entitled to draw such an inference here.

 We need go no further. Taking into account the totality of the circumstances and the allocation of the burden of proof, we find the petitioner's claim that the Commission improperly rejected its UEM defense to be without merit.  

The petition for review is denied and dismissed.

FOOTNOTES

[1] The exquisite timing of this coincidence suggests that Emerson's epigram ("Wherever a man commits a crime, God finds a witness."   Ralph Waldo Emerson, "Natural Religion," Essays (1875)) may apply to breaches of administrative regulations as well as to violations of the criminal code.

[2] A serious violation occurs

if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use ... unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

29 U.S.C. §  666(k).   While the OSH Act does not define the term "repeat violation," courts typically require proof that the respondent violated the same standard on an earlier occasion in a substantially similar fashion. See, e.g., D & S Grading Co. v. Secretary of Labor, 899 F.2d 1145, 1147 (11th Cir.1990);  Bunge Corp. v. Secretary of Labor, 638 F.2d 831, 836- 37 (5th Cir.1981);  George Hyman Constr. Co. v. OSHRC, 582 F.2d 834, 838-39 (4th Cir.1978).

[3] The record in this case aptly illustrates the wisdom of this conclusion.   A compliance officer, Griffin, testified to the close proximity of traffic on the adjacent roads and warned that this could cause vibrations along the trench walls, thus heightening the risk of a cave-in. If a cave-in occurred in a trench of this depth, Griffin believed that workers within it would "probably ... be buried" regardless of where they were standing.

1. In P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 675 F.3d 66 (1st Cir. 2012), the same employer as in the case above had been cited for a repeat violation of failing to shore up trenches in which employees were working and again raised the UEM defense. Gioioso contended in this later case that the fact that he and his insurer conducted inspections of the work sites demonstrated his commitment to the safety of the employees – and therefore should have relieved him of responsibility when they were working in trenches that were not shored up correctly. The ALJ found against Gioioso, OSHRC declined to review, and the First Circuit affirmed the ALJ decision.
2. In both of the two preceding cases, employers were cited for violations of standards. Although most citations are settled before a full hearing before an ALJ, but that did not happen in these cases. Why not? That is, for example: why didn’t ATA just accept the non-serious citation and walk away?

2. What must the Secretary prove in order to have a citation upheld? Were you persuaded that the Secretary met this burden in these cases?

4. Be prepared to discuss the defenses raised by the employers in these cases. When do you think it is appropriate for employers to be able to use the unpreventable employee misconduct (UEM) defense? Do the elements of the defense make sense to you?

5. Do you think it should matter that an employer has tried to establish a safe workplace? How would you determine this?

6. What should happen when employees disobey safety rules? Are there additional questions you would want to ask before answering this question? 

7. When do you think that employees should be disciplined for disobeying safety rules?

8. Do you think employees who violate safety rules should be denied compensation under workers’ compensation for their injuries?

The next cases involve litigation over citations for violation of the general duty clause.

J. SKELLY WRIGHT, Circuit Judge:

We review here an order of the Occupational Safety and Health Review Commission which found National Realty and Construction Company, Inc. to have committed a 'serious violation' of the 'general duty clause' of the Occupational Safety and Health Act of 1970, for which a civil fine of $300 was imposed. Unable to locate substantial evidence in the record to support the Commission's finding of a violation, we reverse.

I. THE PROCEEDINGS AND THE EVIDENCE

* * *   An employer's duties under the Act flow from two sources.  First, by 29 U.S.C. §  654(a)(2), he must conform to the detailed health and safety standards promulgated by the Secretary of Labor under 29 U.S.C. §  655.  Second, where no promulgated standards apply, he is subject to the general duty to

furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

29 U.S.C. §  654(a)(1).  Breach of the general duty opens an employer to fines of up to $1,000 per violation, some fine in this range being mandatory if the violation is 'serious,' 29 U.S.C. §  666(b) and (c).  Employer duties are enforced through citations and proposed penalties issued by the Secretary of Labor, contested matters being adjudicated by the Commission, an independent body of safety experts.

On September 24, 1971 the Secretary cited National Realty for serious breach of its general duty in that an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion.

After National Realty filed timely notice of contest, the Secretary entered a formal complaint charging that National Realty had

permitted the existence of a condition which constituted a recognized hazard that was likely to cause death or serious physical harm to its employees.  Said condition, which resulted in the death of foreman O. C. Smith, arose when Smith stood as a passenger on the running board of a piece of construction equipment which was in motion.

* * *   On September 16, 1971, at a motel construction site operated by National Realty in Arlington, Virginia, O. C. Smith, a foreman with the company, rode the running board of a front-end loader driven by one of his subordinates, Clyde Williams.  The loader suffered a stalled engine while going down an earthen ramp into an excavation and began to swerve off the ramp.  Smith jumped from the loader, but was killed when it toppled off the ramp and fell on him. John Irwin, Smith's supervisor, testified that he had not seen the accident, that Smith's safety record had been very good, that the company had a 'policy' against equipment riding, and that he – Irwin – had stopped the '4 or 5' employees he had seen taking rides in the past two years.  The loader's driver testified that he did not order Smith off the vehicle because Smith was his foreman; he further testified that loader riding was extremely rare at National Realty. Another company employee testified that it was contrary to company policy to ride on heavy equipment.  A company supervisor said he had reprimanded violators of this policy and would fire second offenders should the occasion arise.  Simms, the inspector, testified from personal experience that the Army Corps of Engineers has a policy against equipment riding.  He stated he was unaware of other instances of equipment riding at National Realty and that the company had 'abated' its violation.  Asked to define abatement, Simms said it would consist of orally instructing equipment drivers not to allow riding.

The hearing examiner dismissed the citation, finding that National Realty had not 'permitted' O. C. Smith to ride the loader, as charged in the citation and complaint…Upon reviewing the hearing record, the Commission reversed its examiner by a 2-1 vote, each commissioner writing separately.  Ruling for the Secretary, Commissioners Burch and Van Namee found inadequate implementation of National Realty's safety 'policy.' Rejecting the hearing examiner's factual findings in part, Commissioner Burch stated that it was 'incredible' that an oral safety policy could have reduced equipment riding to a rare occurrence.  Commissioner Van Namee reasoned that the Smith incident and the '4 or 5' occurrences shown on the record 'put respondent on notice that more was required of it to obtain effective implementation of its safety policy.' The majority commissioners briefly suggested several improvements which National Realty might have effected in its safety policy: placing the policy in writing, posting no-riding signs, threatening riders with automatic discharge, and providing alternative means of transport at the construction site. In dissent, Commissioner Moran concluded that the Secretary had not proved his charge that National Realty had 'permitted' either equipment riding in general or the particular incident which caused Smith's death.

II. THE ISSUES

Published regulations of the Commission impose on the Secretary the burden of proving a violation of the general duty clause.  When the Secretary fails to produce evidence on all necessary elements of a violation, the record will – as a practical consequence – lack substantial evidence to support a Commission finding in the Secretary's favor. That is the story of this case.  It may well be that National Realty failed to meet its general duty under the Act, but the Secretary neglected to present evidence demonstrating in what manner the company's conduct fell short of the statutory standard.  Thus the burden of proof was not carried, and substantial evidence of a violation is absent.

* * *  Under the clause, the Secretary must prove (1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.'  The hazard here was the dangerous activity of riding heavy equipment.  The record clearly contains substantial evidence to support the Commission's finding that this hazard was 'recognized'[1]  and 'likely to cause death or serious physical harm.'[2]  The question then is whether National Realty rendered its construction site 'free' of the hazard.  In this case of first impression, the meaning of that statutory term must be settled before the sufficiency of the evidence can be assessed.

Construing the term in the present context presents a dilemma.  On the one hand, the adjective is unqualified and absolute: A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace in the industry. On the other hand, Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one. Congress' language is consonant with its intent only where the 'recognized' hazard in question can be totally eliminated from a workplace.  A hazard consisting of conduct by employees, such as equipment riding, cannot, however, be totally eliminated.  A demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime. This seeming dilemma is, however, soluble within the literal structure of the general duty clause.  Congress intended to require elimination only of preventable hazards.  It follows, we think, that Congress did not intend unpreventable hazards to be considered 'recognized' under the clause.  Though a generic form of hazardous conduct, such as equipment riding, may be 'recognized,' unpreventable instances of it are not, and thus the possibility of their occurrence at a workplace is not inconsistent with the workplace being 'free' of recognized hazards.

Though resistant to precise definition, the criterion of preventability draws content from the informed judgment of safety experts.  Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program. Nor is misconduct preventable if its elimination would require methods of hiring, training, monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods infeasible. All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace.  To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program's feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously.  At the same time, however, actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury.  The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.

The hearing record shows several incidents of equipment riding, including the Smith episode where a foreman broke a safety policy he was charged with enforcing.  It seems quite unlikely that these were unpreventable instances of hazardous conduct.  But the hearing record is barren of evidence describing, and demonstrating the feasibility and likely utility of, the particular measures which National Realty should have taken to improve its safety policy.  Having the burden of proof, the Secretary must be charged with these evidentiary deficiencies.

The Commission sought to cure these deficiencies sua sponte by speculating about what National Realty could have done to upgrade its safety program. These suggestions, while not unattractive, came too late in the proceedings.  An employer is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when it learns the exact nature of its alleged violation only after the hearing.  As noted above, the Secretary has considerable scope before and during a hearing to alter his pleadings and legal theories.  But the Commission cannot make these alterations itself in the face of an empty record. To merit judicial deference, the Commission's expertise must operate upon, not seek to replace, record evidence.

Only by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant should have done can the Commission and the courts assure evenhanded enforcement of the general duty clause. [3] Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere, and the Secretary has an awesomely broad discretion in selecting defendants and in proposing penalties.  To assure that citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.

Because the Secretary did not shoulder his burden of proof, the record lacks substantial evidence of a violation, and the Commission's decision and order are, therefore,

 Reversed.

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

[1] An activity may be a 'recognized hazard' even if the defendant employer is ignorant of the activity's existence or its potential for harm.  The term received a concise definition in a floor speech by Representative Daniels when he proposed an amendment which became the present version of the general duty clause:

A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry.  In other words, whether or not a hazard is 'recognized' is a matter for objective determination; it does not depend on whether the particular employer is aware of it.

116 Cong.Rec. (Part 28) 38377 (1970).  The standard would be the common knowledge of safety experts who are familiar with the circumstances of the industry or activity in question.  The evidence below showed that both National Realty and the Army Corps of Engineers took equipment riding seriously enough to prohibit it as a matter of policy.  Absent contrary indications, this is at least substantial evidence that equipment riding is a 'recognized hazard.'

[2] Presumably, any given instance of equipment riding carries a less than 50% probability of serious mishap, but no such mathematical test would be proper in construing this element of the general duty clause. See Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988, 997-998 (1973).  If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission's expert determination of likelihood should be accorded considerable deference by the courts.  For equipment riding, the potential for injury is indicated on the record by Smith's death and, of course, by common sense.

[3] Such precautions will not, of course, make the broad commands of the general duty clause any more precise and clear to prospective violators of the clause.  But any statute or rule of law imposing general obligations raises certain problems of fair notice.  Since this case arose, the Secretary has promulgated some specific regulations governing the safety precautions to be used by the construction industry.  29 C.F.R. §  1926.  With respect to the general duty clause itself, the Commission can ameliorate the fair notice problem by attending carefully to the statutory definition of a 'serious violation':

(a) Serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

29 U.S.C. §  666(j).  When the hazard involved is a form of hazardous conduct by employees, an employer's safety program is in 'serious' violation of the general duty clause only if (1) the misconduct involves a substantial risk of harm and is substantially probable under the employer's regime of safety precautions, or (2) the employer, with the exercise of reasonable diligence, could have known that its safety program failed the standards of the clause by failing to preclude the occurrence of preventable misconduct.  If either condition applies, it is hardly unfair for the Commission to assume that the defendant-employer had at least constructive notice that the law required more than was being done.  Only if a violation is serious is a penalty necessarily imposed.  Compare 29 U.S.C. §  666(b) with 29 U.S.C. §  666(c).  While the Commission has the clear authority to impose a penalty even if the violation is not serious, a zero penalty, coupled with an abatement order, would obviously be the proper response where the Commission determined that the defendant-employer had no notice, i. e., no duty to know, that its safety regime was defective. Given our disposition of this case, there is no occasion to decide if National Realty's violation, properly proved, would be 'serious.'

Cummings, Circuit Judge.

Petitioner Caterpillar Inc. ("Caterpillar") appeals a final decision of the Occupational Safety and Health Review Commission (the "Commission") issued September 4, 1996.   This case arises out of an accident at Caterpillar's East Peoria, Illinois, facility involving the repair of a 6,000-ton forging press called the Erie 6000.   The repair procedure required use of a gear pulling device that had four steel studs on it, each weighing 35 to 40 pounds and measuring 42 inches in length and 1 3/4 inches in diameter.   The accident occurred when a steel stud broke off during the repair operation and was propelled 121 feet, where it hit an employee in the head, causing serious injury.

After the accident, the Secretary issued a citation alleging that Caterpillar willfully violated Section 5(a)(1), 29 U.S.C. §  654(a)(1)--the "general duty clause"--of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. §  651 et seq.   The Administrative Law Judge (the "ALJ") assigned to the case affirmed the citation and assessed a penalty of $30,000.   The Commission agreed with the ALJ that Caterpillar's violation of Section 5(a)(1) was willful, but concluded that a penalty of $49,000, the amount originally requested by the Secretary, was appropriate.

This Court has jurisdiction over the appeal pursuant to Section 11(a) of the Act, 29 U.S.C. §  660(a).

 Facts; Standard of Review

At issue in this case is a citation issued on or about January 13, 1993, by the Occupational Safety and Health Administration ("OSHA").   The citation alleged a violation of Section 5(a)(1) of the Act in that:

On or about July 16, 1992, in building BB at the Erie 6,000 ton forging press, employees were exposed to the hazard of being struck by broken parts thrown through the air during maintenance procedures.   The equipment, including the studs, as used in an attempt to pull the Erie 6,000 ton press's clutch hub off of its shaft, did not have a safety factor of four-to-one and the equipment was neither guarded nor retained.

In July 1992, a bearing failed on the hub of the Erie 6000, a 6,000-ton forging press that forges the track links of earthmoving equipment.  As a result, the hub had to be removed from its crank shaft so that new bearings could be inserted, and Caterpillar scheduled this maintenance procedure for July 15, 1992, during a previously planned production shutdown.  Prior to the operation, Ronald Williams, the day shift's lead repairman, met with his supervisor of three months, James Rhodes.   As discussed below, prior to this time, Williams had held detailed discussions with his previous supervisor about his safety concerns regarding this type of operation and had made multiple suggestions regarding possible safety precautions.   During his meeting with Rhodes, however, Williams suggested only that warning signs be posted and the area be cordoned off.   Rhodes agreed and took care of the matter.

To remove the hub, Williams and two co-workers assembled a gear pulling device, which consisted in part of four steel studs screwed into the face of the hub, two on each side.   Using two large hydraulic jacks, an outward pressure was placed against the hub.   As had happened in the past with this type of assembled gear puller, when a high degree of pressure was placed on the steel bars spanning the area across the face of the crank shaft between the paired studs uneven pressure could cause the studs to bend or break.

The operation at issue in this case began during the night shift on July 15, 1992.   That crew did not successfully remove the hub and quit after a stud snapped and a fragment flew 25 feet.   Richard Hill, the night-shift supervisor, was in the vicinity and was aware of the broken stud and had observed studs break during maintenance operations on another forging press. Hill told Rhodes about the stud break, but Williams, the worker in charge of the pull, was not advised.   The next day when Williams began preparing for the pull, he noticed that the area in front of the Erie 6000 was not "taped off" even though warning tape had been placed 40 to 60 feet away from the sides of the press, so he and Rhodes moved the warning tape to a distance of 90 to 100 feet away from the press on all sides.   Williams warned Caterpillar employees Bonner and Dunn, who were performing unrelated work, that the operation was about to begin, and the men moved out of the way.   However, when the crew began the pulling procedure, one of the studs broke, and the fragment, which weighed over nine pounds, flew 121 feet through the air.   It struck Dunn in the back of the head, causing serious injury.

 This was not the first experience Caterpillar had had with flying studs.   In the Spring of 1989, Williams and a crew removed the hub on the Erie 6000 press in order to fix the brake wheel.   During the process one of the studs broke and a fragment flew 60 feet through the air, stopping finally when it hit a heavy metal cabinet.   The force of the impact indented the cabinet three inches.  Both maintenance foreman Clay Parker (Williams's supervisor prior to Rhodes) and the shop superintendent, Darrel Seeyle, were aware of the incident.   The stud came within 20-25 feet of hitting Seeyle.

During a July 1989 pull, the crew removed the hub from the other side of the Erie 6000 press, with Williams again acting as leadman.   Eight to ten studs broke and flew during this procedure, one of the studs flying 35 to 40 feet and leaving a half-inch dent in the metal of a crane (co-incidentally, it was the accident victim in 1992, Dunn, who narrowly escaped injury from this stud).

As a result of these experiences, Williams had repeatedly requested, and repeatedly been denied, enhanced safety precautions.   At various times, Williams suggested the use of:  (i) a "furnace curtain," which was rejected by Parker as too expensive and time consuming;  (ii) tapered studs, which were also rejected by Parker after one use as too expensive and time consuming; (iii) an "H-beam fixture," which was discussed with other employees, including a mechanical technician who was a member of management, but nothing came of the idea;  and (iv) a "bridge" device of several pieces of plate welded together with bracing, which Parker rejected without comment.

This Court's review of the Commission's order is limited to a determination whether the factual basis of the Commission's decision is based upon substantial evidence and whether the legal basis for the decision is arbitrary or capricious and in accordance with law.   Administrative Procedure Act, 5 U.S.C. §  706.   Caterpillar's primary argument on appeal is that it took precautions commensurate with the foreseen hazards of the Erie 6000 operation by assigning the project to a skilled and experienced tradesman (Williams) with a positive safety record.   It states the issue as being "whether an employer may rely on its assignment of a complicated and potentially hazardous skilled-trades level task to a skilled trades-trained employee, as a method of meeting the employer's obligations" under the general duty clause (Br. at 2).   Caterpillar urges us to find that the Commission's decision was arbitrary and capricious and departed from prior Commission precedent and the applicable statutory scheme.

The Commission's finding that Caterpillar's violation of the general duty clause was willful is fully supported by Commission precedent and is not arbitrary or capricious

The Act's "general duty" clause provides that each employer:

shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

29 U.S.C. §  654(a)(1).   Commission precedent clearly establishes that a general duty clause violation requires the following elements:  (i) the existence of a hazard likely to cause death or serious physical harm; (ii) the employer's recognition (i.e., awareness) of the hazard; (iii) the availability of feasible means to abate the hazard; and (iv) the employer's failure to implement the feasible means of abatement.   See Secretary of Labor v. Kastalon, Inc., 1986 WL 53514, *4 (O.S.H.R.C.).  Of these factors, at issue in this appeal is, first, whether Caterpillar was aware of the hazard of studs shooting into the workplace during the type of maintenance procedure on the Erie 6000 that took place in July 1992, and, second, whether Caterpillar failed to implement a feasible means of abatement.  An OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute.   See Valdak Corp. v. O.S.H.R.C., 73 F.3d 1466, 1468 (8th Cir.1996);  Ensign-Bickford Co. v. O.S.H.R.C., 717 F.2d 1419, 1422 (D.C.Cir.1983), certiorari denied, 466 U.S. 937, 104 S.Ct. 1909, 80 L.Ed.2d 458 (collecting cases).   A willful violation "is differentiated from other types of violations by a heightened awareness--of the illegality of the conduct or conditions--and by a state of mind-conscious disregard or plain indifference."  Secretary of Labor v. Calang Corp., 1990 WL 140086, *2 (O.S.H.R.C.) (citations omitted).

The Commission's finding of willfulness was based on its conclusion that, in accordance with "well settled" principles of agency law, an employer is imputed with its supervisor's knowledge of a hazardous condition, even if the supervisor subsequently departs the employ of the employer . . .  It found that Caterpillar was attempting to evade responsibility for its conduct by looking at the knowledge of Rhodes and its other new supervisory personnel in 1992, rather than looking back to the knowledge of the supervisors in place during the 1989 operations. In response, the Commission noted that it was Caterpillar's responsibility to disseminate to those entrusted with the health and safety of its employees the knowledge possessed by it regarding the "pervasive and continuing nature" of the flying stud problem.   In other words, it concluded that Caterpillar's "heightened awareness" of the problem remained with the corporation despite any turnover in personnel.  

After finding a "heightened awareness" of the problem, the Commission also concluded that Caterpillar showed a "plain indifference to employee safety" when it simply delegated authority to Williams, "whose prior safety concerns it had rebuffed," again citing Tampa Shipyards.  It noted that Caterpillar had both knowledge of the hazard and abundant resources to evaluate and abate it and found that Caterpillar's installation of the tape barrier and warning signs for the procedure at issue were not an "objectively reasonable means of abatement, especially where employees involved in the hub-pulling procedure were located within it." 

Caterpillar claims that it took all steps required by the general duty clause when it put Williams, a skilled craftsman, in charge of the operation and relied on him to make appropriate safety recommendations to his supervisor, Rhodes.   We agree with the Commission's analysis, however.   The mere fact that Parker and Seeyle, who both indisputably were aware of the hazard, ceased to be Williams's supervisors before the 1992 pull does not cancel Caterpillar's knowledge (i.e., heightened awareness) of the risks of the operations and its responsibility for their impact on Williams and the safety of the operation. . . . To hold otherwise would encourage corporate forgetfulness with possibly serious safety consequences.   These supervisors consistently rejected Williams's recommendations for protecting workers from the flying studs.   In light of these rejections, Caterpillar cannot now argue that it reasonably relied on Williams to ensure the safety of the hub pulling operation in 1992.

We also find that the Commission's conclusion that such reliance showed a plain indifference to employee safety--a prerequisite to a finding of willfulness--is supported by substantial evidence and Commission precedent and is neither arbitrary nor capricious. . The ALJ's findings of fact, as adopted by the Commission, demonstrate this.   Caterpillar became aware as early as 1989 that when studs broke from the hub, fragments were propelled erratically in different directions and for different distances. Despite this knowledge, and despite two incidents in which employees were nearly struck by flying fragments, Caterpillar rejected or ignored the recommendations of the very person it had put on the projects to eliminate the hazard.   Williams had neither the power nor the authority independently to implement his rejected safety measures, nor could he commit Caterpillar resources to the measures. Caterpillar cannot now claim that it is not guilty of a willful violation because it put Williams in charge of the pull operation and relied on his expertise.   The fact that Williams did not suggest additional safety measures during the July 1992 operation appears understandable given the rejection of his many suggestions over the preceding three years, and it does not excuse Caterpillar's failure to implement additional safety measures.   After all, "[r]esponsibility under the Act for ensuring that employees do not put themselves into any unsafe position rests ultimately upon each employer, not the employees, and employers may not shift their responsibility onto their employees."   Secretary of Labor v. V.I.P. Structures, Inc., 1994 WL 362276, *3 (O.S.H.R.C.).

Good faith efforts at compliance that are incomplete or not entirely effective can negate a willfulness finding provided that they were objectively reasonable under the circumstances. . .   However, we agree with the Commission that in this case Caterpillar's decision in July 1992 to install warning tape and signs was not an objectively reasonable safety plan.   As the Commission noted, the tape certainly offered no protection to employees working within the danger zone and Caterpillar had no way of knowing on July 16, 1992, that a 100-foot zone would be adequate, given that a previous stud had been shot out to 60 feet, stopping only when it slammed into a steel cabinet, leaving a three-inch dent (the safety zone of 40-60 feet on the sides only of the Erie 6000 on July 15, 1992, was without question inadequate).

Despite Caterpillar's urging, this Court's decision in McLaughlin v. Union Oil Co. of California, 869 F.2d 1039 (7th Cir.1989), does not lead to a contrary result.   In that case, this Court found that the employer's failure to inspect a pressure vessel for microscopic hydrogen stress corrosion cracking was merely negligent and not "willful."   However, the Court emphasized as part of its reasoning that there had never been a serious accident to such a pressure vessel by reason of hydrogen stress corrosion cracking.  We believe the facts of this case are simply distinguishable: Caterpillar's failure to take reasonable safety precautions after it was actually aware from other near-accidents that flying stud fragments posed a danger is far different conduct than Union Oil's failure to discover microscopic cracking before any accident had resulted or visibly been threatened.

Likewise, Caterpillar puts much emphasis on the Commission's decision in  Secretary of Labor v. Connecticut Light & Power Co., 1989 WL 223325 (O.S.H.R.C.), wherein it stated that, "An employer is justified in placing a great deal of reliance on the judgment of highly experienced and trained employees with good safety records."  Id. at *6.   However, Caterpillar's selective quote miscomprehends the thrust of the Commission's decision in that case.   Unlike Caterpillar in this case, Connecticut Light & Power had not put an employee in charge of ensuring other employees' safety.   The Commission found that Connecticut Light & Power had not violated the general duty clause because it had a very detailed safety protocol in place, which employees were expected to follow.   It concluded that the Secretary had failed to meet her burden of proving the inadequacy of the safety program because she did not establish that the accident was the result of inadequate training or that more supervision by the foremen would have been both feasible and useful.   It found instead that the employees involved in the accident were trained adequately to recognize the hazard posed by an energized lightning arrestor and that the company was justified in relying on those employees to discover the hazard and take proper precautions.  Id. at *4-5.

Caterpillar's situation is completely different than that of Connecticut Light & Power.   In this case, Caterpillar would like us to find that, because it "relied" on the expertise of Williams (while repeatedly rejecting or ignoring his recommendations), it did not violate the general duty clause. But, unlike Connecticut Light, it had no safety protocol in place and it had not trained Dunn, the accident victim, to recognize the hazard posed by flying studs.   Unlike the injured Connecticut Light employee, who had been extensively briefed on safety issues, Dunn could not have been expected to take care of himself under the circumstances.   Under Caterpillar's formulation, an employer would have almost no duty at all to its employees so long as it found one employee to take charge of a known, dangerous activity.

In light of the foregoing, the Commission's conclusion that Caterpillar willfully violated the Act's "general duty" clause is affirmed.

The penalty was appropriate

Penalties under the Act must take into account the size of the employer's business, the gravity of the violation, the good faith of the employer and the employer's history of previous violations.   See 29 U.S.C. §  661(j).   The Commission increased the penalty imposed by the ALJ, finding that Caterpillar was not entitled to credit for good faith, which the ALJ had given, reasoning that Caterpillar's violation had been willful and that abatement had been prompted only by the accident at issue and not done independently before anyone was hurt. . .  After crediting Caterpillar only for its generally positive history with respect to previous violations, it determined that the proposed penalty of $49,000 was appropriate.

Caterpillar argues only that the Commission erred when it refused to give Caterpillar good faith credit, because Caterpillar co-operated in the accident investigation and immediately corrected identified hazards.   It asserts that the Commission's theory is inconsistent with the policies of the Act and that the Commission's decision should be vacated, but it does so without citation to any legal authority that would lead us to agree.

This Court will not overturn the sanction imposed by the Commission unless it is unwarranted in law or without justification in fact.   See Butz v. Glover Livestock Commission Co., Inc., 411 U.S. 182, 185-186, 93 S.Ct. 1455, 1457, 36 L.Ed.2d 142;  Valdak, 73 F.3d at 1470.   The Commission's decision clearly reflects consideration of the statutory criteria and a careful review of the facts of the case.   The penalty imposed by the Commission appropriately reflected the statutory criteria and was supported by the record.

The order of the Commission is AFFIRMED.

1. Relationship with standards: The general rule is that a citation under section 5(a)(1) is only proper if no specific standard applies.

2. Elements of a general duty violation: The cases have articulated four elements that OSHA must prove to establish a general duty violation:

1. a condition or activity in the workplace presents a hazard to an employee;
2. the condition or activity is recognized as a hazard;
3. the hazard is causing or is likely to cause death or serious physical harm; and
4. a feasible means exists to eliminate or materially reduce the hazard.

There must be a workplace hazard that affects an employee:  the affected person must be an employee, not an independent contractor; the definition of place of employment is broadly construed; there must be sufficient causal connection between the harm and the workplace.  A hazard is defined to include processes and materials that cause injury or disease by operating directly on employees as they engage in work-related activities.

The hazard must be recognized:  There is some debate about what this means, in terms of how obvious the hazard must be.  The note in National Realty states that “an activity may be a recognized hazard even if the defendant employer is ignorant of the activity’s existence or its potential for harm.” This becomes a much more complex question when the hazard is not immediately visible.

Likelihood of serious harm:  In National Realty, the court observes that “a given instance of equipment riding carries a less than 50% probability of serious mishap does not preclude a finding of a violation so long as serious physical harm is not freakish or utterly implausible.” Later cases embraced a significant risk test, but modified it to suggest that the question is whether, if the hazardous event occurs, it would create a significant risk to employees – suggesting a ‘possibility test.’

Feasible method to correct the hazard: The OSHRC has held that OSHA must specify the proposed abatement measures and demonstrate both that the measures are capable of being put into effect, are economically feasible, and that they would be effective in materially reducing the incidence of the hazard.

3. Because OSHA has not been successful at issuing a standard governing ergonomics, the agency now uses the general duty clause to reach employers with high incidence of back and other musculoskeletal injuries. See Beverly Enterprises, Inc., 19 O.S.H. Cas. (BNA) ¶ 1161 (O.S.H.R.C. Oct. 27, 2000); Pepperidge Farm, Inc., 17 O.S.H. Cas. (BNA) ¶ 1993 (O.S.H.R.C. Apr. 26, 1997). We will return to this issue later.

4. OSHA has more recently relied on the general duty clause to address issues of workplace violence, particularly in the health care industry. See e.g. Secretary of Labor, Complainant v. UHS of Centennial Peaks LLC, Dba Centennial Peaks Hospital, Respondent, OSHRC Docket No.: 19-1579, 2022 WL 4075583 (July 26, 2022). This particular case was settled when appealed to the Tenth Circuit Court of Appeals, and dismissed on remand, based on the settlement, by OSHRC. As the judge noted in UHS of Cetennnial Peaks:

1. In a proceeding in which an employer challenges any part of a citation, the Secretary has the burden to prove all required elements of the citation. Employers may defend by saying that the violation did not occur, or by raising an affirmative defense.

2. Employers’ possible affirmative defenses to a citation (for violation of a standard or the general duty clause) include:

• the employer is exempt from OSHA by virtue of section 4(b)(1) because the employer is covered by an alternative federal law (such as the MSHAct);
• the Secretary's inspection procedures did not comply with section 8(a);
• the citation was inadequate (e.g. the violation was not described with reasonable particularity, the citation was not issued with reasonable promptness, or the cited standard was impermissibly vague);
• the Secretary’s case did not prove all elements required to show a violation of a standard, or, when applicable, the general duty clause; 
• noncompliance was caused by unpreventable employee misconduct;
• the proposed intervention poses a greater hazard;
• OSHA otherwise lacks jurisdiction.  For a discussion of some of the limits on jurisdiction, see Frank Diehl Farms v. Sec'y of Labor, 696 F.2d 1325 (11th Cir. 1983) (in dispute over whether OSHA could reach the housing provided to employees, the court concluded that only “if company policy or practical necessity force workers to live in employer provided housing” create a “degree of coercion such that the hazards of apartment living are sufficiently related to employment” may OSHA impose “additional duties upon the employer as mandatory landlord.” This is true “even though these places would not otherwise be ‘workplaces’ and even though the hazards associated with the housing are different in kind and quality from most occupational hazards.”  696 F.2d at 333).

3. The most common affirmative defense to a citation is the claim that employee misconduct removed responsibility from the employer. To successfully assert this defense the burden is on the employer to demonstrate it (1) established a work rule to prevent the reckless behavior and/or unsafe condition from occurring, (2) adequately communicated the rule to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule whenever employees transgressed it.

Before FORMAN, GIBBONS and ROSENN, Circuit Judges.

Gibbons, Circuit Judge.

This is a petition filed pursuant to § 11(a) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §  660(a), to review an order of the Occupational Safety and Health Review Commission (the Commission) determining petitioners to be in non-serious violation of the Act's provisions.  The petitioners are stevedoring companies operating in the Port of Philadelphia. They employ longshoremen. The Secretary of Labor, pursuant to statutory authority, has adopted safety and health regulations for longshoring. Among those regulations is the so called "longshoring hardhat" standard:

"Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969)." 29 C.F.R. §  1918.105(a) (1975).

On April 10-11, 1973 an OSHA compliance officer inspected the Camden, New Jersey docks and discovered that nearly all of petitioners' longshoremen were working without hardhats. The Secretary cited petitioners for violation of §  5(a)(2) of OSHA, 29 U.S.C. §  654(a)(2), and proposed that civil penalties aggregating $455 be levied against the petitioners.^[1]  Each citation also ordered immediate abatement of violations.  Petitioners filed notices of contest, 29 U.S.C. §  659(a), which resulted in a hearing before the Commission's Administrative Law Judge.  29 U.S.C. §  659(c).

At the hearing the OSHA compliance officer testified that on the dates of his inspections, only a very small proportion of the longshoremen were wearing hardhats, that none of the petitioners had previously been cited for a violation of the hardhat standard, and that no injuries were involved.  He also testified that between 1971, when the standard was adopted, and April 1973 there had been a moratorium in the Secretary's enforcement of it, because the longshoremen's unions opposed it and the rank-and-file preferred not to wear hardhats.  In 1973 the Secretary changed his enforcement policy, apparently as a result of conversations between a representative of the Department of Labor and the president of the International Longshoremen's Association.

Witnesses for the petitioners testified that stevedores in the Port of Philadelphia had, beginning in 1971, undertaken strenuous but unsuccessful efforts to obtain compliance with the standard by their longshoring employees; had furnished the required hardhats; had encouraged use of the headgear at regular safety meetings; had posted hardhat signs on their working premises; had used payroll envelope stuffers advocating hardhat wearing; and had placed hardhat safety messages on the hiring tapes.  All this was to little avail, and each employer witness testified to a firm belief that wildcat strikes or walkouts would attend attempts to enforce the standard by firing employees who refused to comply. There is undisputed testimony that in another port a strike over that issue did occur. There is, however, no testimony that these petitioners ever denied work to a longshoreman for his refusal to wear a hardhat.

The petitioners urged that the Secretary's citations and proposed penalties should be vacated because in view of the longshoremen's intransigent opposition to and their union's lukewarm support for the standard, compliance by them with the hardhat standard was not achievable.  The Administrative Law Judge found the three employers in violation of 29 C.F.R. §  1918.105(a), but vacated the Secretary's proposed penalties.  A petition for discretionary review was filed with the Commission pursuant to §  12(j) of the Act, 29 U.S.C. §  661(i), and review was granted.

I

On April 11, 1975 the Commission handed down the decision and final order which we review.  The Commission voted 2-1 to affirm the Administrative Law Judge's decision finding violations and vacating proposed penalties, but each Commissioner filed a separate opinion. Commissioner Cleary announced the decision of the Commission.  He rejected as "largely speculative" the petitioners' contention that they had done all they could do without causing labor strife.  In addition, citing Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974), he concluded that, at least when non-compliance by employees was neither unpredictable nor idiosyncratic, final responsibility for compliance with the Act's requirements rested with the employers.

Commissioner Van Namee, concurring, did not agree that the evidence of potential labor unrest was speculative.  Nor did he agree that employers could under the Act be held strictly liable in all instances of technical non-compliance. Yet he concluded that in this instance the employers would, because of the terms of their collective bargaining agreements, have a remedy under §  301 of the Labor Management Relations Act, 29 U.S.C. §  185, against a wildcat strike. Commissioner Van Namee surmised that the availability of such a remedy made the fear of a strike, or at least an effective one, "nothing more than an illusion."^[2] He recognized, however, that the applicability of a particular safety and health standard should not turn on whether the parties to the collective bargaining agreement agreed upon a grievance-arbitration procedure that was broad enough to permit a Boys Markets injunction.  Such an approach would admit of selective enforcement of OSHA safety standards.  To meet this objection Commissioner Van Namee said that irrespective of the existence of a Boys Markets remedy, the Commission itself had the statutory authority to issue cease and desist orders running against employees.  These orders could be enforced by injunction in the Courts of Appeals pursuant to § §  11(a) and (b) of the Act, 29 U.S.C. § §  660(a) and (b).

Chairman Moran dissented.  Like Commissioner Van Namee, he rejected Commissioner Cleary's assessment of the evidence concerning the likelihood of walkouts over attempts to enforce the hardhat requirement.  He concluded that the employers had taken all steps required of them under the Act.  He also expressed doubt as to the availability of §  301 injunctive relief.

In summary, although the Commission order affirmed the citations, there is no opinion which can be said to represent a consensus.  Two Commissioners, Moran and Van Namee, agree that the record contains substantial evidence tending to show that a work stoppage will occur if the petitioners take additional steps to enforce the hardhat requirement.  Commissioner Van Namee concludes, however, that the availability of relief before the Commission against spontaneous employee obduracy renders this body of evidence irrelevant.  Chairman Moran evidently does not share Commissioner Van Namee's expansive view of the Commission's powers, although he did not in this case address the issue. Commissioner Cleary flatly rejects any interpretation of OSHA that would permit the Commission to issue cease and desist orders against employees. Nevertheless, he regards the threat of work stoppages posed in this instance as largely speculative.  In any event, Commissioner Cleary suggests that where, as here, employee non-compliance is neither unpredictable nor idiosyncratic, the employer has an absolute statutory duty to enforce the terms of the Act.

II

Section 11(a) of the Act, 29 U.S.C. §  660(a), directs the reviewing court to accept "(t)he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole . . . ."  Brennan v. OSHRC (Interstate Glass Co.), 487 F.2d 438 (8th Cir. 1973).  Because there is no opinion in which a majority of the Commission joined, there is no Commission finding of fact with respect to the likelihood that enforcement of the hardhat standard would provoke a work stoppage. But two Commissioners appear to have credited the testimony of the petitioners' witnesses that such a work stoppage was likely if not inevitable.  We believe that such a finding would be supported by substantial evidence on the record as a whole.^[3] Indeed, Commissioner Cleary's rejection of the evidence as "largely speculative", if it represented a finding of the Commission, probably would have to be dismissed as unsupported by substantial record evidence.  Thus we assume, for purposes of this petition for review, that the longshoremen in the Port of Philadelphia are intransigent on the hardhat issue and are likely to strike if more vigorous enforcement efforts are undertaken.

This assumption serves to focus the specific and relatively narrow issue presented by this petition, viz., whether when employee non-compliance with an occupational safety or health standard is both predictable and virtually uniform, the employer must nevertheless enforce compliance even at the risk of concerted employee work stoppages. * * *  

A

In urging us to vacate the citations, petitioners place principal reliance on our decision in the Hanovia Lamp case, Brennan v. OSHRC (Hanovia Lamp Div.), 502 F.2d 946, 951 (3d Cir. 1974). There we followed the holding of the District of Columbia Circuit in National Realty & Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257 (1973), rejecting a construction of the Act which would effectively make employers strictly liable for violations arising from employee misconduct.  In Hanovia Lamp we held that an employer could be held answerable for a violation resulting from such misconduct only when "demonstrably feasible measures" existed for materially reducing its incidence. In reply the Secretary correctly points out that both National Realty Construction and Hanovia Lamp involved citations for violation of the Act's general duty clause, while this case involves a citation for violation of a specific safety standard. It seems to be the Secretary's position that employers are to be held to a higher standard of care under specific regulations than under the general duty clause.  We decline to bifurcate the statute in such a manner, and attach no significance to the proffered distinction. * * * 

But while Hanovia Lamp [and] National Realty Construction … supply us with the standard of liability to be applied to the facts of this case, they offer precious little insight into the question whether the petitioner stevedoring companies have breached their statutory duty of care. Those cases involved the unpredictable and unforeseeable actions of individual employees.  This case involves the predictable, nearly universal actions of all the longshoremen.  There is a demonstrably feasible measure which can be taken to prevent such concerted disobedience: the employer can refuse employment to those who insist on violating the standard.  The discussions of strict liability in the cases referred to have no application to the instant situation, except to the extent that they are authority for the proposition that we will not construe OSHA to impose completely unreasonable burdens on employers within the Act's coverage.

We find guidance on this difficult question in our recent decision in AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975).  In that case we reviewed action of the Secretary adopting a "no hands in dies" standard for the mechanical power press industry.  We recognized that the economic feasibility of an occupational safety and health standard was relevant to our assessment of its statutory validity. We pointed out that an economically impossible standard would in all likelihood prove unenforceable, and that the burden of policing a regulation uniformly ignored by a majority of industry members would prove to be overwhelming.  Thus we held that in promulgating regulations the Secretary could take into account the economic impact of a proposed standard. 

B

In the same case, however, we also recognized that OSHA must be viewed as technology-forcing legislation; that is, legislation looking to improvement in the techniques of industrial safety. The Secretary's rule-making task comprehends weighing the competing considerations of economic burden and improvement of safety.  …[E]mployee resistance to a safety standard having severe economic consequences is a relevant consideration in the instant case. That conclusion is not compelled because of the manifest differences between the Secretary's quasi-legislative rule-making, which we review under §  6(f) of the Act, 29 U.S.C. §  655(f), and Commission adjudication, which we review under §  11(a), 29 U.S.C. §  660(a). It is at least arguable that while the Commission may consider evidence bearing upon an employer's culpability for a given violation, it may not take into account the general economic consequences of enforcement of the standard. Such a conclusion would not necessarily be inconsistent with Hanovia Lamp and the other §  11 cases recognizing that an employer is not to be held responsible, in an enforcement proceeding, for unpredictable and unforeseeable employee misconduct.  It would relegate to the Commission the role of developing rules against harsh or arbitrary applications of standards in individual cases, while leaving to the Secretary the legislative task of making broad policy decisions.

That the issue before us involves broad policy considerations is abundantly clear.  Indeed, the Secretary's moratorium on enforcement of the hardhat standard from 1971 to 1973 suggests that those considerations were at one time thought to be significant. But assuming that the respective roles of the Secretary and the Commission are as the foregoing discussion suggests, our role, whether the standard comes before us in the context of a §  6(f) petition or a §  11(a) enforcement proceeding, would appear to be the same. This conclusion follows from either of two diverging lines of analysis.

 [Lengthy discussion of legislative history omitted]

We thus believe that, as enacted, §  11(a) of OSHA carries forward, if only implicitly, the understanding of the House, reflected in the Committee bill, that the validity of a particular safety standard could preliminarily be determined in a Commission enforcement proceeding.

This conclusion is supported by strong policy considerations as well as the Act's legislative history.  As has been seen, §  6(f) provides for pre-enforcement review of a safety standard in the courts of appeals.  The provision does not direct the court to expedite the reviewing process, however, so it is likely that there will be substantial lag time between the Secretary's promulgation of a challenged standard and the initial decision on its validity. Because the filing of a pre-enforcement petition to review will not ordinarily operate as a stay of the standard, see §  6(f), 29 U.S.C. §  655(f), enforcement proceedings may commence before even an initial determination of validity has been made.  Unless the Commission is authorized to consider defenses of invalidity, it will be reduced to rubber-stamping possibly invalid citations, and employers will for an interim period be deprived of any remedy for sanctions imposed contrary to law.

Moreover, it may become evident that a particular safety and health standard is economically or technologically infeasible, or otherwise unreasonable, only after employers have made good faith efforts to comply. These problems may manifest themselves well after the 60-day period for pre-enforcement review has expired. The Commission would thus be the only available forum for raising the question of invalidity.  Because we do not believe that Congress intended to foreclose all possible challenge to the validity of a standard 60 days beyond its effective date, we must conclude that §  11(a) of OSHA empowers the Commission to deny enforcement to a standard determined by it to have been issued in violation of the Act's substantive or procedural requirements.

Because judicial review of the Commission's adjudicatory conclusions is plenary once it is decided that the Commission has the authority to entertain defenses of invalidity in enforcement proceedings, it inescapably follows that the reviewing court enjoys a similar license.  Thus whether a challenged standard comes before us in the context of a §  6(f) petition or a §  11(a) enforcement proceeding, we must inquire into its compatibility with the terms of the Act.

* * *

C

We hold today that we have jurisdiction to decide the validity of an OSHA regulation in an enforcement proceeding as well as in a direct petition for review.  We do not mean to suggest, however, that the posture in which the question is presented to us is irrelevant for all purposes.  Indeed, the context in which the challenge to a regulation is made determines the allocation of the burden of proof. * * *

Congress barred petitions for §  6(f) review filed more than 60 days after promulgation.  We have already held the defense of invalidity is always available in an enforcement proceeding. But we do not believe that the burden of proof in a §  11(a) case is identical with the burden in a §  6(f) case.  In an enforcement proceeding invalidity is an affirmative defense to a citation, and the petitioning employer bears the burden of proof on the issue. Thus a petitioner cannot defend solely on the ground that the procedural requirements established in Synthetic Organic I [Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1396, 43 L.Ed.2d 653 (1975)] have been ignored by the Secretary.  To carry its burden the petitioner must produce evidence showing why the standard under review, as applied to it, is arbitrary, capricious, unreasonable or contrary to law.  Were we to hold otherwise we would effectively nullify the congressional circumscription of the right to petition for review of an OSHA standard.^[4] 

III

In this case the petitioners contend that the longshoring hardhat safety standard, insofar as it is applied to them, is invalid because attempts at enforcement would provoke a wildcat strike by their employees.  The standard is, in their view, economically infeasible.  They produced evidence tending to support this position in the proceeding before the Administrative Law Judge. We believe that petitioners have carried their burden of proof on the issue. The remaining question is the legal sufficiency of the defense.  We turn, then, to the several grounds relied upon by the Commission in rejecting petitioners' challenge to the hardhat safety standard.

A

If Commissioner Van Namee is correct that the Commission has the power to issue cease and desist orders against employees as well as employers, then the economic infeasibility argument against the standard disappears from this case.  * * *  If the Commission, and in turn this court, can issue coercive process against employees directly, the threat is eliminated and the defense overcome.  It is far from clear, however, that the Commission enjoys the power for which Commissioner Van Namee argues.

Commissioner Van Namee finds the source of such coercive authority in a combination of §  2(b)(2) of the Act, 29 U.S.C. §  651(b)(2), §  5(b), 29 U.S.C. §  654(b), and §  10(c), 29 U.S.C. §  659(c).  The latter provision authorizes the Commission to issue orders "affirming, modifying, or vacating the Secretary's citation . . .  or directing other appropriate relief . . .." Section 2(b)(2), in the section of the Act setting forth congressional findings and a declaration of policy, provides:

(b) The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions . . . .

Section 5(b) provides that

"(e)ach employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct."

According to Commissioner Van Namee the employees' separate responsibilities under  §  5(b) would be "meaningless and a nullity" if the Commission and this court, in an enforcement proceeding, were powerless to sanction employee disregard of safety standards and commission orders.

* * *  With considerable misgivings, we conclude that Congress did not intend to confer on the Secretary or the Commission the power to sanction employees. Sections 2(b)(2) and 5(b) cannot be read apart from the detailed scheme of enforcement set out in § §  9, 10 and 17 of the Act.  It seems clear that this enforcement scheme is directed only against employers.  Sections 9(a) and 10(a) provide for the issuance of citations and notifications of proposed penalties only to employers.  29 U.S.C. § §  658(a), 659(a). Section 10(a) refers only to an employer's opportunity to contest a citation and notification of proposed penalty.  Only after an employer has filed a notice of contest does the Commission obtain general jurisdiction.  Employees and their representatives may then elect to intervene under §  10(c).  The only independent right granted employees by §  10(c) is to contest before the Commission the reasonableness of any time period fixed by the Secretary in a citation for the abatement of a violation.  Section 17, 29 U.S.C. §  666, provides for the assessment of civil monetary penalties only against employers.^[5] That the Act's use of the term "employer" is truly generic is made plain in §  3, the definitional section, where "employer" and "employee" are separately defined.  See 29 U.S.C. §  652.  We find no room for loose construction of the term of art.

We are likewise unable to find support in §  5(b) for the proposition that the Act's sanctions can be directed at employees.  Although this provision's injunction to employees is essentially devoid of content if not enforceable, we reluctantly conclude that this result precisely coincides with the congressional intent. * * *  [I]t cannot be seriously contended that Congress intended to make the amenability of employees to coercive process co-extensive with employers.  The Senate Report on the employee duty section, quoted in full, says:

The committee recognizes that accomplishment of the purposes of this bill cannot be totally achieved without the fullest cooperation of affected employees. In this connection, Section 5(b) expressly places upon each employee the obligation to comply with standards and other applicable requirements under the act.

It should be noted, too, that studies of employee motivation are among the research efforts which the committee expects to be undertaken under section 18, and it is hoped that such studies, as well as the programs for employee and employer training authorized by section 18(f), will provide the basis for achieving the fullest possible commitment of individual workers to the health and safety efforts of their employers.  It has been made clear to the committee that the most successful plant safety programs are those which emphasize employee participation in their formulation and administration; every effort should therefore be made to maximize such participation throughout industry.

The committee does not intend the employee-duty provided in section 5(b) to diminish in anyway the employer's compliance responsibilities or his responsibility to assure compliance by his own employees.  Final responsibility for compliance with the requirements of this act remains with the employer.

S.Rep. No. 91-1282, supra, at 10-11, U.S.Code Cong. & Admin.News 1970, p. 5187.

We simply cannot accept the argument that a remedy for violations of §  5(b) can be implied from its terms.  All the evidence points in the other direction.^[6]

Nor do we believe that the language in §  10(c) authorizing the Commission to issue orders "directing other appropriate relief" can be stretched to the point that it includes relief against employees.  Rather, the generality of that language must be deemed limited by its context relief in connection with the Secretary's citation.  The Secretary appears not to have authority to issue a citation against an employee, and the Commission's powers cannot be any broader.  "Other appropriate relief" refers to other appropriate relief against an employer.

This court's power under §11(a) of the Act is framed in somewhat broader terms:

Upon (the filing of a petition for review), the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified."    29 U.S.C. §  660(a).

Clearly we can, in deciding whether and to what extent we will enforce a Commission order affirming a Secretary's citation, take into account the fact that employee intransigence in spite of employer best efforts would make enforcement inequitable.  In such a case we could deny or limit enforcement. But §  11(a) does not grant to this court any independent authority to sanction employees.

B

We hold, then, that Commissioner Van Namee's reason for rejecting the petitioners' economic infeasibility defense cannot withstand analysis.  We must face squarely the issue whether the Secretary can announce, and insist on employer compliance with, a standard which employees are likely to resist to the point of concerted work stoppages.  To frame the issue in slightly different terms, can the Secretary insist that an employer in the collective bargaining process bargain to retain the right to discipline employees for violation of safety standards which are patently reasonable, and are economically feasible except for employee resistance?

We hold that the Secretary has such power…[T]he entire thrust of the Act is to place primary responsibility for safety in the work place upon the employer.  That, certainly, is a decision within the legislative competence of Congress.  In some cases, undoubtedly, such a policy will result in work stoppages.  But as we observed in AFL-CIO v. Brennan, supra, the task of weighing the economic feasibility of a regulation is conferred upon the Secretary.  He has concluded that stevedores must take all available legal steps to secure compliance by the longshoremen with the hardhat standard.

We can perceive several legal remedies which employers in petitioners' shoes might find availing.  An employer can bargain in good faith with the representatives of its employees for the right to discharge or discipline any employee who disobeys an OSHA standard.  Because occupational safety and health would seem to be subsumed within the subjects of mandatory collective bargaining wages, hours and conditions of employment, see 29 U.S.C. §  158(d) the employer can, consistent with its duty to bargain in good faith, insist to the point of impasse upon the right to discharge or discipline disobedient employees.  See NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952).  Where the employer's prerogative in such matters is established, that right can be enforced under §  301.  Should discipline or discharge nevertheless provoke a work stoppage, Boys Markets injunctive relief would be available if the parties have agreed upon a no-strike or grievance and arbitration provision.  And even in those cases in which an injunction cannot be obtained, or where arbitration fails to vindicate the employer's action, the employer can still apply to the Secretary pursuant to §  6(d) of the Act, 29 U.S.C. §  655(d), for a variance from a promulgated standard, on a showing that alternative methods for protecting employees would be equally effective.  See Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1036 (2d Cir. 1975). Moreover, under §  10(c), 29 U.S.C. §  659(c), the Secretary has authority to extend the time within which a violation of a standard must be abated.

In this case petitioners have produced no evidence demonstrating that they have bargained for a unilateral privilege of discharge or discipline, that they have actually discharged or disciplined, or threatened to discharge or discipline, any employee who defied the hardhat standard, or that they have petitioned the Secretary for a variance or an extension of the time within which compliance is to be achieved. We conclude that as a matter of law petitioners have failed to establish the infeasibility of the challenged regulation.

The order of the Commission enforcing the Secretary's citations will be affirmed.  The petition for review will be denied.

FOOTNOTES

[1] Because the alleged violations were not considered to have created "a substantial probability (of) death or serious physical harm", 29 U.S.C. §  666(j), the Secretary deemed them non-serious for civil penalty purposes. 29 U.S.C. §  666(c)

[2] That a Boys Markets, Inc. v. Retail Clerks, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) remedy is available does not, of course, by itself conclusively answer petitioners' objection that employee recalcitrance makes compliance with the longshoring hardhat safety standard impossible.  The stevedores could obtain a §  301 injunction only if they agreed to submit the hardhat dispute to arbitration.  There can be no assurance, for example, that an arbitrator would decide that an employee who defied an express directive of his employer and ignored validly promulgated federal regulations could be discharged or otherwise disciplined for such conduct.  We assume, however, that arbitration would most often sustain the employer prerogative in this regard.  Where the collective bargaining agreement empowers the employer to seek §  301 relief, therefore, that remedy is likely to prove adequate. In those instances where it is demonstrably inadequate, the employers may nevertheless seek relief from liability by petitioning for a variance from the standard, 29 U.S.C. §  655(d), or for an extension of time in which to abate a cited violation 29 U.S.C. §  659(c).  See Part IIIB, infra.

[3] In addition to the evidence of the employers' futile attempts at friendly persuasion, and of the longshoremen's resistance in the Port of Philadelphia and elsewhere, see Part I supra, the evidence showed that while initial compliance in 1971 with the regulation was good (about 80%), the rate of compliance quickly deteriorated.  Apparently many workers tried the hats, found them uncomfortable or cumbersome, and discontinued their use.  The evidence also showed that although the stevedores had never actually denied employment to a longshoreman who refused to wear a hardhat, a 1971 threat of such action triggered an angry demonstration of longshoring foremen.  Statistics showing that head injuries comprised only a small fraction (perhaps 1%) of total longshoring injuries fueled employee sentiment that hardhats did not protect against a significant occupational hazard and hence were unnecessary.

[4] We recognize that in dealing with difficult and complex problems of economic and technological feasibility, the placement of the burden of proof may well be determinative of the question of validity.  A standard which, because of the placement of the burden of proof, could not be sustained in a §  6(f) proceeding, may nonetheless be held valid in an enforcement proceeding where the burden shifts to the party asserting invalidity.  Whether such an approach is wise is not for us to decide.  We believe that Congress, by limiting §  6(f) review to 60 days, has directed employers to be vigilant by raising questions of invalidity prior to actual enforcement.

[5] Compare in this regard the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § §  801-960.  Section 109(a)(1)-(2) provides for civil penalties against miners as well as employers.  30 U.S.C. §  819(a)(1)-(2).  In contrast to OSHA, §  109(a)(4) preserves the right to jury trial in the civil penalty enforcement proceeding.  30 U.S.C. §  819(a)(4).  See Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1975) (en banc), petition for cert. filed, 44 U.S.L.W. 3363 (U.S. Nov. 21, 1975) (No. 75-748).

[6] Our conclusion is fortified by reference to the following post-enactment colloquy between Representative Steiger, a co-sponsor of OSHA, and Representative Hungate:

1. HUNGATE: Now, employer-employee. We have had a line of testimony about, tell this guy to wear a hardhat, or there are six guys on the job and five of them do and the other guy tosses it out, it is a hot day. And they come through and the employer gets fined and the employee does not. What can we do about that?
2. STEIGER: Well, Mr. Chairman when this bill was being considered, that was a question on which we spent a considerable amount of time. I would have to say the business community, at the time the bill was under consideration, took a very hard line that they did not want the Federal government to be in the business of disciplining their employees . . . But on balance, Mr. Chairman, I would not want to see us amend the law to impose Federal government discipline on employees.  I think that is something left between management and labor.
3. HUNGATE: No, there is not. The law says the employer is responsible . . . but again I want to simply reiterate that I think it would be a mistake to interfere in labor-management relations in terms of who has discipline responsibility . . .  I think that is something where there are unions and managements negotiating that can be dealt with in the negotiation process.
4. HUNGATE: Is fining the employer an act of discipline?
5. STEIGER: Yes, I think it would be.
6. HUNGATE: Then we are interfering in the field of discipline in labor-management relations. MR. STEIGER: No, we are not.
7. STEIGER: The employer is fined because, under the law, that is his responsibility. I would hope that the employer would be in the position to deal with his employee who put himself in the position of having his employer fined.

Hearings before the Subcomm. on Environmental Problems Affecting Small Business of the Select Comm. on Small Business, 92d Cong., 2d Sess. 490-91 (1972).

As you already know, in addition to the fact that OSHA has an inadequate number of inspectors to visit all hazardous workplaces, the penalties and fines under the statute have always been small. This issue is compounded by the fact that employers are almost universally immune from tort liability for negligence or reckless behavior due to the exclusivity provisions in state workers’ compensation laws[1] – and that cases are often settled for less than the initial penalty. 

At the time the statute was passed, the fines were basically symbolic. The Omnibus Budget Reconciliation Act of 1990 increased fines seven-fold, leading to maximum fine levels of $7000 for non-serious and serious violations to $70,000 for repeated or willful violations.  (Here’s a history of OSHA if you’re interested.)  These fine levels were in place – until 2016.

To put this in context: The average OSHA penalty per serious violation in 2011 was $2,132; it was $1,053 in 2010 and $998 in 2008, the last year of the Bush administration.  Most of the fines are never collected; 90% of cases are settled by negotiation with a reduction of the fine, generally in exchange for the employer’s agreement to correct the unsafe condition. (Remember that the ‘abatement period’ under the OSH Act does not run during the time an appeal is pending.) The average fine in 2014 for an incident in which a worker died was $7,000, reduced to $5,050 following settlement talks, according to the AFL-CIO.

OSHA fines finally increased in 2016 for the first time in 25 years. The Federal Civil Penalties Inflation Adjustment Act of 1990 had exempted OSHA from increasing its penalties to account for inflation. That is, while other agencies’ penalties rose, OSHA’s remained the same between 1990 and 2015. The Budget Act of 2015, signed into law on November 2, 2015, contained an amendment that struck the exemption.

OSHA was then directed to issue a rule increasing its penalties to account for current inflation levels, which immediately raised proposed fines by about 80 percent.  According to the Wall Street Journal:

Still, even after an expected increase of as much as roughly 80%, OSHA fines will remain tiny compared to those issued by many other regulatory agencies, such as the Environmental Protection Agency. The new fines are due to be set some time next year.

Workplace-safety experts from both industry and labor said they were caught by surprise by the new mandate, which they say will likely increase maximum fines for the most severe citations to $125,000 from $70,000 and for other serious violations to $12,500 from $7,000. The maximum allowable fines may also end up being lower than that following a rule-making process, they say.

OSHA was one of only a handful of federal agencies that were specifically exempted from a 1990 bill that required federal agencies to raise their fines to keep pace with inflation.

Even one prominent lawyer who has represented industry interests in workplace-safety issues for decades said he couldn’t argue with the increase.

“It’s very difficult to defend the present penalty structure,” said Baruch Fellner, who has long represented industry interests on OSHA issues. “If you look at OSHA penalties in the context of other programs, they are in fact for individual items minuscule comparatively speaking. For larger corporations it can be a cost of doing business.”

Alexandra Berzon, “OSHA Fines to Rise for First Time Since 1990,” WSJ (Nov. 3, 2015).

The change means that the penalties are adjusted annually to reflect inflation. The current penalties are set out here. States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least equal to federal OSHA's. This means that penalties rise together in all states.

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[1] We will return to this issue later.

One important but often overlooked power of government is the power of contracting: to decide which firms will receive governmental contracts, and which will not.  Government contracts are quite lucrative, and some large firms receive a considerable part of their revenue through these contracts. This power has been used in a variety of ways to magnify the importance of compliance with state and federal law.  The process by which a firm is barred from participating in this lucrative business is called “debarment.” States can use this power as well. For example, in Massachusetts, no firm can receive a contract if it appears on a state or federal debarment list. See the Massachusetts webpage for further information on this.

In May 2015, the U.S. General Services Administration, together with the Department of Labor, proposed to amend the Federal Acquisition Regulation (FAR) to implement the Executive Order Fair Play and Safe Workplaces (E.O. 13673, issued July 31, 2014) which was intended to improve contractor compliance with the labor laws.  See 80 Fed. Reg. 30548 et seq., proposing amendments to 48 CFR Parts 1, 4, 9, 17, 22 and 23 (May 28, 2015) (proposed rule amending FAR); and 80 Fed. Reg. 30574 et seq. (May 28, 2015) (proposed DOL guidance for implementing E.O. 13673).  Under these proposals, federal contractors would have had to report whether there had been any administrative merit determinations, civil judgments or arbitration awards against them involving any of 14 identified federal or state labor laws during the three-year period preceding the time of the bid on a contract.  The violations would then have been assessed (for example, considering whether they were serious, repeated, willful, or pervasive); subcontractors of the contractors would also be required to report.  Assessment would include whether there were mitigating circumstances.  President Obama issued the Fair Play and Safe Workplaces Executive Order on July 31, 2014; the Department of Labor issued guidance under the order on May 28, 2015; a federal judge in Texas issued a national-wide injunction enjoining enforcement on October 24, 2016; then Congress in early 2017 acted under the Congressional Review Act to withdraw it and President Trump, during his first term, officially withdrew it (see this federal register notice from the Department of Labor noting rescission). 

For now, there is no federal debarment of contractors for occupational safety and health violations. 

Criminal penalties under the OSHAct are as follows:  

• Willful violation causing worker’s death: maximum penalty $250K fine ($500K for organization) and/or 6 months in jail (29 U.S.C. §666 (e) as amended by 18 U.S.C. § 3571(b))
• Giving advance notice of inspection: maximum penalty: $1,000 fine and/or 6 months in jail 29 U.S.C. §666 (f)
• Knowingly making false statement, representation, or certification: maximum penalty $10,000 fine and/or 6 months in jail 29 U.S.C. §666 (g)

In order to pursue these penalties, OSHA must seek the cooperation of the Department of Justice which is responsible for the prosecution.  In the past, in part because the punishment is relatively minimal – and the proof is difficult – these cases have not received priority within the Justice Department, nor have there been many referrals from OSHA:[1]

Source: Occupational Safety and Health Administration (OSHA) Enforcement, https://www.osha.gov/enforcement/2013-enforcement-summary  

There was a scathing expose in the New York Times in 2003 regarding the failure of OSHA to pursue criminal prosecutions in most cases that involved willful violations that resulted in a worker’s death:

Over a span of two decades, from 1982 to 2002, OSHA investigated 1,242 of these horror stories -- instances in which the agency itself concluded that workers had died because of their employer's ''willful'' safety violations. Yet in 93 percent of those cases, OSHA declined to seek prosecution, an eight-month examination of workplace deaths by The New York Times has found.

David Barstow, U.S. Rarely Seeks Charges For Deaths in Workplace https://www.nytimes.com/2003/12/22/us/us-rarely-seeks-charges-for-deaths-in-workplace.html (Dec. 22, 2003)

Between 1970, the passage of the Occupational Safety and Health Act, and 2015, only 88 worker death cases were prosecuted under the OSH Act; convicted defendants served a total of 100 months in jail. During the same period, there were more than 390,000 workplace fatalities.  During the Obama Administration, the use of criminal prosecutions rose. For example, in 2014, the U.S. Department of Labor referred or assisted with the criminal prosecution of 27 cases involving worker deaths – the highest number in DOL’s history and a significant increase, obviously, over 2013.  

If you’re interested in this problem, see Rena Steinzor, Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction (2014). See also the Center for Progressive Reform’s Crimes Against Workers database, which catalogs criminal charges brought (federal and state) for workplace violations including health and safety (available at  https://progressivereform.org/incidents).

There was some hope that the rather pitiful historical criminal enforcement record might have changed after a joint announcement from DOL and DOJ on December 17, 2015.  The DOJ Worker Endangerment Initiative webpage says:

In an effort to prevent and deter crimes that put the lives and the health of workers at risk, the Departments of Justice and Labor announced today a plan to more effectively prosecute such crimes. Under the new plan, the Justice Department’s Environment and Natural Resources Division and the U.S. Attorneys' Offices will work with the Department of Labor’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), and Wage and Hour Division (WHD) to investigate and prosecute worker endangerment violations.

This was further communicated to all U.S. Attorneys by memorandum from the Deputy Attorney General:

The Department is committed to ensuring every American's right to a safe workplace. Currently, an average day in the United States is marked by 13 workplace fatalities, nearly 150 deaths from occupational diseases, and about 9,000 nonfatal injuries and illnesses. The Occupational Safety and Health Act of 1970 ("OSH Act") provides criminal sanctions for three types of conduct impacting worker safety: ( 1) willfully violating a specific standard, and thus causing the death of an employee; (2) giving advance notice of OSHA inspection activity; and (3) falsification of documents filed or required to be maintained under the OSH Act. Each of these is a misdemeanor punishable by a fine of no more than $10,000 and/or imprisonment for no more than 6 months. Perhaps because these penalties have never been increased, there are only a handful of reported criminal prosecutions under the OSH Act each year (e.g., three in 2013).

Prosecutors can make enforcement meaningful by charging other serious offenses that often occur in association with OSH Act violations – including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. With penalties ranging from 5 to 20 years' incarceration, plus significant fines, these felony provisions provide additional important tools to deter and punish workplace safety crimes.

The 2015 prosecution of Don Blankenship is an example. Blankenship was the CEO of Massey Energy when 29 miners died at the Upper Big Branch mine in West Virginia in 2012. He was indicted for conspiracy to violate safety laws, defrauding the federal government, securities fraud and making false statements to the Securities and Exchange Commission.  He was convicted only on the charge of conspiracy to violate safety laws.

Criminal prosecutions are only brought in willful cases involving fatalities, often multiple fatalities. When OSHA reduces the level of the citation below willful in order to persuade an employer to move ahead with abatement activities, DOJ will not pick up the case for prosecution.

See next section for a discussion of criminal prosecutions by states. 

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[1] Note that as of the updating of these materials, this chart has not been updated for subsequent years.

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Federal prosecutions, even for willful violations resulting in death, are very rare. And, as you saw above, the OSH Act only provides for misdemeanor prosecutions with minor penalties.

What happens if a state (without a state plan) decides to bring criminal charges against a company or officers of a company? Assume that the state can prove the requisite elements of the crime (cases have been brought involving battery as well as manslaughter). Does the OSHA preemption language in §18 mean that a state is precluded from bringing these charges? This issue has been litigated through several state courts; the U.S. Supreme Court has never accepted a case for review.

In Illinois v. Chicago Magnet Wire Corp., 534 N.E.2d 962 (Ill. 1989), cert. denied sub nom., Asta v. Illinois, 493 U.S. 809 (1989), the Illinois Supreme Court concluded that the state could pursue criminal prosecutions. In this case, and in others like it, the court concluded that §18 of OSHA does not preempt state enforcement of state criminal laws in regard to conduct of employers in the workplace, noting that the criminal law has purposes that OSHA does not encompass. These courts generally assume that it is different for a state to create additional remedies, as opposed to changing the actual duty of the employer with regard to health and safety.

The cases in which this issue has arisen are emblematic of some of the worst violations of worker health and safety. For example, Film Recovery Systems, Inc., in Chicago was recovering silver from used film plates, using sodium cyanide solution. Undocumented Mexican and Polish workers worked over open vats of the cyanide solution without rubber gloves or masks. The employees were not told of the danger; the warning labels were painted over. Employees complained of dizziness, nausea, headaches. An OSHA inspector came to the plant, went to the business office, and examined the safety records. Upon finding that the recorded injury rate was below the national average, he left without viewing the actual working conditions. Shortly after this OSHA “inspection,” a worker went into convulsions and died from the cyanide exposure. OSHA then made a fatality inspection and fined the company $4000, bargained this down to $2000, and then did not collect the fine based upon the company’s assertion that it was going out of business. The State of Illinois brought murder charges against three company officials; they were found guilty and sentenced to lengthy prison terms. The company appealed. During the pendency of the appeal, the Illinois court decided Illinois v. Chicago Magnet Wire Corp., supra. The Film Recovery case was reversed on other grounds and sent back down for retrial.

Another similarly distressing example: a company in New York was reclaiming mercury from broken thermometers. An OSHA inspection in 1981 found that no protective gear was provided, and that work surfaces and the lunch area were contaminated. Abatement was ordered, but four one-year extensions were granted. A 1985 reinspection found that the original violations continued. The New York Attorney General’s office pursued a criminal indictment and the company was found guilty of assault. The conviction was upheld. See People v. Pymm, 76 N.Y.2d 511 (1990). 

Another example: In 2016, two workers drowned in a 14 foot unshored trench in downtown Boston, Massachusetts. The trench collapsed; the two workers were buried up to their waists; the water line to the adjacent fire hydrant snapped as a result of the loss of support from the collapsed dirt; the trench filled with water in seconds; the workers drowned. The company had been cited numerous times and received repeat and willful citations. Note that this construction work was being done on a public contract. OSHA proposed almost $1.5 million in fines. The owner was tried convicted and convicted of manslaughter; Prosecutors asked for 7- to 10-year prison term; he was sentenced to two years. The City of Boston enacted a new ordinance requiring contractors to attest to their safety violation histories in order to avoid this kind of situation in the future.

These prosecutions can also be pursued in state plan states. Here is one distressing example involving confined spaces and the essential need for effective lock out/ tag out procedures): a worker in a Bumble Bee Food factory in Los Angeles was burned to death inside an industrial pressure cooker. On Oct. 11, 2012, Jose Melena, 62, entered a 35-foot oven at the company’s Santa Fe Springs plant to make a repair inside the machine, which is used to sterilize thousands of cans of tuna at a time. Unaware that Melena was inside the oven, other plant workers loaded several carts that altogether held about 12,000 pounds of tuna, shut the door and turned on the oven. Temperatures peaked at around 270 degrees, and Melena cooked to death. The company described Melena's death as a "tragic accident" and noted that an investigation by the California Division of Occupational Safety & Health found no willful violations related to the accident. On Oct. 19, 2012, Bumble Bee President and CEO Chris Lischewski released a statement that said, “At this point, it is still not clear how this could have happened. From a process standpoint, it takes between 20 and 30 minutes to load a retort with about 12 to 14 baskets of canned product to be sterilized. The baskets are loaded by an employee operating a pallet jack. This was Jose’s primary responsibility. Once the baskets are finished processing, they are pulled out of the retort by a forklift. We are not aware of any such accident ever occurring before with this machinery.” Note the implication in this statement that the incident was the workers’ fault.

In May 2013, Cal/OSHA issued citations and fines of nearly $74,000, saying the employer had not identified the ovens as a permit-required confined space, and did not post danger signs or similar means to warn workers of the hazards of entering the ovens. Bumble Bee and two of the tuna company’s employees were charged by the L.A. District Attorney with three felony counts of committing an occupational and safety and health violation that caused death. If convicted as charged, the individual defendants would have faced a maximum sentence of three years in state prison and/or a $250,000 fine. San Diego-based Bumble Bee Foods faced a maximum fine of $1.5 million.

In a settlement agreement signed August 12, 2015, Bumble Bee Food LLC agreed to pay a total of $6 million for willfully violating worker safety rules and causing the death of a worker who was trapped inside an industrial oven (People v. Bumble Bee Food LLC, Cal. Super. Ct., No. BA435950): $3 million to replace its outdated tuna ovens, $1.5 million in restitution to the family of the victim, $750,000 to the district attorney's Environmental Enforcement Fund and a total of $750,000 in combined fines, penalties and court costs. The settlement is the “largest known payout” in a California criminal case over workplace safety violations involving one victim, according to the prosecution. In addition to the $6 million payment, the settlement agreement requires Bumble Bee to implement “enhanced safety measures.” Prosecutors say the company had to install video cameras at their ovens, provide training to managers and workers about safety rules, and conduct safety audits of their plant equipment.

Maine has a specific statute governing workplace fatalities:

ME ST T. 17-A § 203 Manslaughter

1. 1. A person is guilty of manslaughter if that person:
   2. Has direct and personal management or control of any employment, place of employment or other employee, and intentionally or knowingly violates any occupational safety or health standard of this State or the Federal Government, and that violation in fact causes the death of an employee and that death is a reasonably foreseeable consequence of the violation. This paragraph does not apply to:

(1) Any person who performs a public function either on a volunteer basis or for minimal compensation for services rendered; or
(2) Any public employee responding to or acting at a life-threatening situation who is forced to make and does make a judgment reasonably calculated to save the life of a human being.