Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457

Appearances:  Kate S. O’Scannlain, Solicitor of Labor

    Jeffrey S. Rogoff, Regional Solicitor

    Susan B. Jacobs, Senior Trial Attorney

    U.S. Department of Labor, Office of the Solicitor, New York, NY

    For the Secretary of Labor

    Andrew J. Ryan, Esq.

    Woods Oviatt Gilman LLP

    1900 Bausch & Lomb Place

    Rochester, NY 14604

    For Respondent

Before:    The Honorable Dennis L. Phillips

    U.S. OSHRC Judge

DECISION AND ORDER

I. BACKGROUND

   In 2012, Timberline Hardwood Dimensions, Inc. (THD), a company co-owned by Thomas A. Vavra (Thomas Vavra or Mr. Vavra), settled and affirmed Occupational Safety and Health Administration (OSHA) citation items for violations of the same hearing conservation, lockout/tagout, forklift training and hazard communication standards in 2012 as are at issue in the instant case. In August 2012, as part of the settlement of those 2012 citations, Mr. Vavra personally signed abatement certifications on behalf of THD containing detailed explanations of how every citation item had been abated.

Mr. Vavra is the co-owner and sole manager of Timberline Hardwood Floors LLC (Respondent or Timberline). In January 2018, OSHA initiated an inspection of Timberline’s worksite located at 99 Harris Street, Fulton, New York 13069. Respondent is a hardwood flooring manufacturer. It is located at the same address as THD. Respondent does the same type of work, uses the same machinery and employs most of the same workers as THD. OSHA found that THD and Respondent had not taken any action since 2012 to establish a hearing conservation program, train employees on noise, require employees to have hearing tests/audiograms (also audio grams), or ensure that employees always wore hearing protection. Similarly, OSHA found that Mr. Vavra misrepresented that in April 2012 he had developed and implemented an energy control program and procedures for servicing and maintaining the hazardous machines at THD that had been cited by OSHA. OSHA also found that THD had not abated its 2012 hazardous communication and forklift violations.

On July 25, 2018, Respondent contested the three citations OSHA issued to it on July 3, 2018 pursuant to section 9(a) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. § 651 et seq.) (the OSH Act). (Exs. 1, 20). A trial on the merits was conducted on December 10 and 11, 2019, in Syracuse, New York. Both parties filed post-trial briefs on April 27, 2020.1 On May 12, 2020, Complainant filed his Reply Brief.

II. STIPULATIONS OF FACT AND LAW

  The following facts and law were stipulated to by both parties in the Joint Pre-Hearing Statement (Jt. Pre-Hrg. Stmt.) and the stipulations were accepted by the Court. (Jt. Pre-Hrg. Stmt.; Tr. 36)

A. Docket No. 18-1211

1.  Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act. (Jt. Pre-Hrg. Stmt., § 5).

2.  Respondent Timberline Hardwood Floors LLC, a corporation doing business in the State of New York, maintaining its principal office and place of business at 99 Harris Street, Fulton, New York 13069, at all relevant times is and was engaged in the manufacturing of hardwood flooring and related activities. (Jt. Pre-Hrg. Stmt., § 4(a)).

3.  Many of the materials and supplies used and/or manufactured by Respondent originated and/or were shipped from outside the State of New York and the Respondent was and is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the OSH Act and is an employer within the meaning of section 3(5) of the Act. (Jt. Pre-Hrg. Stmt., § 4(b)).

4.  On or about July 3, 2018, Complainant issued one citation to Respondent alleging violations at a worksite located at 99 Harris Street, Fulton, New York 13069. (Jt. Pre-Hrg. Stmt., § 4(c)).

5.  By letter dated July 25, 2018, Respondent timely notified Complainant of its intent to contest the citation. (Jt. Pre-Hrg. Stmt., § 4(d)).

6.  Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.95(c)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 1a). (Jt. Pre-Hrg. Stmt., § 4(e)).

7.  On August 30, 2012, Thomas Vavra signed an abatement certification on behalf of Timberline Hardwood Dimensions, Inc. certifying that the violation of 29 C.F.R. § 1910.95(c)(1) contained in the citation issued in Inspection No. 331026 had been corrected/abated on April 22, 2012. (Jt. Pre-Hrg. Stmt., § 4(f)).

8.  Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.1200(e)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 2a). (Jt. Pre-Hrg. Stmt., § 4(g)).

9.  Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.1200(g)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 2b). (Jt. Pre-Hrg. Stmt., § 4(h)).

10.  On August 30, 2012, Thomas Vavra signed abatement certification on behalf of Timberline Hardwood Dimensions, Inc. certifying that the violations of 29 C.F.R. § 1910.1200(e)(1) and §1910.1200(g)(1) contained in the citation issued for Inspection No. 331026 had been corrected/abated on April 23, 2012. (Jt. Pre-Hrg. Stmt., § 4(i)).

11.  Thomas Vavra signed a Stipulated Settlement on behalf of Timberline Hardwood Dimensions, Inc. affirming the citations for violation of 29 C.F.R. § 1910.95(c), § 1910.1200(e)(1) and § 1910.1200(g)(1) in Inspection No. 331026. (Jt. Pre-Hrg. Stmt., § 4(j)).

12.  The citations issued to Timberline Hardwood Dimensions on June 12, 2012 in Inspection No. 331026 became a final order of the Occupational Safety and Health Review Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(k)).

13.  Thomas Vavra was an owner of Timberline Hardwood Dimensions, Inc. in 2012 and 2013. (Jt. Pre-Hrg. Stmt. § 4(l)).

14.  Thomas Vavra was an owner of Timberline Hardwood Floors LLC in 2018. (Jt. Pre-Hrg. Stmt., § 4(m)).

15.  The assets of Timberline Hardwood Dimensions, Inc. were transferred to Timberline Hardwood Floors LLC. (Jt. Pre-Hrg. Stmt., § 4(n)).

B. Docket No. 18-1212

1.  Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act. (Jt. Pre-Hrg. Stmt., § 5).

2.  Respondent Timberline Hardwood Floors LLC, a corporation doing business in the State of New York, maintaining its principal office and place of business at 99 Harris Street, Fulton, New York 13069, is and at all relevant times was engaged in the manufacturing of hardwood flooring and related activities. (Jt. Pre-Hrg. Stmt., § 4(a)).

3.  Many of the materials and supplies used and/or manufactured by Respondent originated and/or were shipped from outside the State of New York and the Respondent was and is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act and is an employer within the meaning of section 3(5) of the Act. (Jt. Pre-Hrg. Stmt., § 4(b)).

4.  On or about July 3, 2018, Complainant issued two citations to Respondent alleging violations at a worksite located at 99 Harris Street, Fulton, New York 13069. (Jt. Pre-Hrg. Stmt., § 4(c)).

5.  By letter dated July 25, 2018, Respondent timely notified Complainant of its intent to contest the citations. (Jt. Pre-Hrg. Stmt., § 4(d)).

6.  Timberline Hardwood Dimensions, Inc. was issued a citation for “Serious” violation of 29 C.F.R. § 1910.147(c)(1) on June 12, 2012 in Inspection No. 330566 (Citation 1, Item 3). (Jt. Pre-Hrg. Stmt., § 4(e)).

7.  Timberline Hardwood Dimensions, Inc. was issued a “Serious” citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) on June 12, 2012 in Inspection No. 330566 (Citation 1, Item 4). (Jt. Pre-Hrg. Stmt., § 4(f)).

8.  On August 30, 2012, Thomas Vavra signed abatement certification on behalf of Timberline Hardwood Dimensions, Inc. certifying that the violations of 29 C.F.R. § 1910.147(c)(1) and § 1910.178(l)(1)(i) contained in the citation issued for Inspection No. 330566 had been corrected/abated in April 2012. (Jt. Pre-Hrg. Stmt., § 4(g)).

9.  Thomas Vavra signed a Stipulated Settlement on behalf of Timberline Hardwood Dimensions, Inc. affirming the citations for violation of 29 C.F.R. § 1910.147(c)(1) and § 1910.178(l)(1)(i) in Inspection No. 330566. (Jt. Pre-Hrg. Stmt., § 4(h)).

10.  The citations issued to Timberline Hardwood Dimensions, Inc. on June 12, 2012 in Inspection No. 330566 became a final order of the Occupational Safety and Health Review Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(i)).

11.  Thomas Vavra was an owner of Timberline Hardwood Dimensions, Inc. in 2012 and 2013. (Jt. Pre-Hrg. Stmt., § 4(j)).

12.  Thomas Vavra was an owner of Timberline Hardwood Floors LLC in 2018. (Jt. Pre-Hrg. Stmt., § 4(k)).

13.  The assets of Timberline Hardwood Dimensions, Inc. were transferred to Timberline Hardwood Floors LLC. (Jt. Pre-Hrg. Stmt., § 4(l)).

III. FINDINGS OF FACTS

Respondent is a corporation doing business in the State of New York, maintaining its principal office and place of business at 99 Harris Street, Fulton, New York 13069. It is and at all relevant times was engaged in the manufacturing of hardwood flooring and related activities. (Jt. Pre-Hrg. Stmt., § 4(a); Tr. 324). Timberline was registered with the New York State Department of State on July 10, 2009. (Ex. 37). Thomas Vavra has been the President and 50% co-owner of Respondent since at least 2014. (Tr. 323-24; Ex. 38, at 10-11; Jt. Pre-Hrg. Stmt., §§ 4(k)(m)). Respondent’s other 50% co-owner is a silent partner, Mr. Cucit, who is not involved in running the business. (Tr. 324; Ex. 38, at 9-12). Thomas Vavra has run the day-to-day operations of Respondent on his own since at least 2014. (Tr. 324; Ex. 38, at 11-12). Melissa Vavra, Thomas Vavra’s wife, is Respondent’s Secretary. (Tr. 325; Ex. 38, at 13). Thomas and Melissa Vavra are Respondent’s only officers. (Tr. 325).

In 2017 and 2018, Thomas Vavra was responsible for Respondent’s safety programs, training Respondent’s employees on safety, and ensuring Respondent’s compliance with OSHA standards. (Tr. 325-26; Ex. 38, at 13-14). On January 11, 2018, Respondent had about ten to fourteen employees.2 (Tr. 51, 231, 235, 364). OSHA had not inspected Respondent in the five years that preceded its issuance of the citations in this case. (Tr. 57-58, 267-68).

Prior to running Respondent, Thomas Vavra co-owned and managed THD. (Tr. 326; Ex.

38, at 14-15). THD was registered with the New York State Department of Corporations on July 10, 2000. (Ex. 36). He was the Chief Executive Officer and THD’s only officer listed with the New York State Department of Corporations. (Ex. 36). In 2012, THD operated its workplace out of the same address as Respondent at 99 Harris Street, Fulton, New York. (Tr. 324-26; Exs. 29-30, 33, 38, at 16; Jt. Pre-Hrg. Stmt., §4(a)). THD also manufactured hardwood flooring. (Tr. 326, Ex. 38, at 14). In 2012, Thomas Vavra ran THD’s day-to-day operations. (Tr. 326, Ex. 38, at 14-15).

In 2014, THD restructured into Timberline Hardwood Floors LLC. (Tr. 326-27). THD’s assets were transferred to Respondent with no payments made for those assets. (Tr. 327; Ex. 38, at 18-19; Jt. Pre-Hrg. Stmt., §§ 4(l), (n)). Its equipment and machinery were also obtained by Respondent at no cost. (Tr. 324-28; Ex. 38, at 19). Most of THD’s employees went to work for Respondent after the restructuring. (Tr. 327, 364, 438, 464, 494; Ex. 38, at 19). Other than ownership structure, there was no difference between THD and Timberline. (Tr. 328; Ex. 38, at 19-20). THD ceased operations sometime after 2012. (Tr. 328; Ex. 38, at 16-17).

The only safety program Respondent maintained is contained in its Employee Handbook which was written by Melissa Vavra. (Tr. 57, 331; Ex. 8, at 7-8, Ex. 18, at 1, ¶¶ 1-2, 8-9, Ex. 28, at 1, ¶ 1, Ex. 38, at 32-33).

B. OSHA’s Inspection Nos. 1287433 (Health) and 1286609 (Safety)

On or about January 9, 2018, OSHA’s Syracuse Area Office opened a programmed safety inspection of Respondent’s workplace pursuant to an emphasis program on amputations. Timberline was randomly selected. (Tr. 47-50). Respondent’s workplace consists of approximately 80,000 square feet, 8,000 of which is the mill where most of the employees work. The remainder of the building is used as a warehouse, where raw material, lumber, and finished product are stored. (Tr. 397-98). Respondent’s employees use upcut saws, a planer, a moulder,3 a rip saw/ripper and other woodworking equipment to manufacture the hardwood flooring. (Tr. 51, 378-79, 419-20, 439, 465-66; Exs. 9, 13-15).

OSHA Compliance Safety and Health Officer (CSHO) Lydia Ginette Calderon Hernandez (Calderon) initiated her onsite inspection of Respondent’s workplace on January 9, 2018 and held an opening conference with Thomas Vavra, who identified himself as the owner of the company.4 (Tr. 45, 48, 50). On that day, CSHO Calderon observed that it was very loud in the workplace. She made a referral to the Syracuse Area Office for a health inspection of the workplace. (Tr. 49, 175). As a result of CSHO Calderon’s referral, OSHA Senior Industrial Hygienist (IH) Donalea Marie Maloney was assigned to conduct a health inspection of Respondent’s workplace.5 On January 11, 2018, IH Maloney accompanied CSHO Calderon to the workplace and initiated a health inspection that included noise sampling.6 (Tr. 174-75). On that day, IH Maloney conducted an opening conference with Anthony Vavra,7 who identified himself as a co-owner with his brother Thomas Vavra. (Tr. 50-51, 176-77). IH Maloney subsequently met Thomas Vavra that same day and explained the purpose of her inspection. (Tr. 177). IH Maloney described Respondent’s facility as a “big warehouse, a lot of area, with stacking of wood floors. And then there was an area where the actual cutting and processing was taking place.” (Tr. 177-78). CSHO Calderon also continued her onsite safety inspection on January 11, 2018. (Tr. 51). CSHO Calderon and IH Maloney visited the workplace again on January 19 and February 20, 2018.8 (Tr. 48, 175-76). During both the safety and health inspections, CSHO Calderon and IH Maloney observed and documented various unsafe conditions at the workplace.

C. OSHA’s Noise Sampling

IH Maloney conducted noise sampling at the workplace on January 11, 2018 by following standard OSHA procedures. (Tr. 185). Prior to going to the workplace that day, IH Maloney pre-calibrated all six of the dosimeters9/pumps that she was planning to use to sample noise exposure for Respondent’s employees using a Dupont dosimeter calibrator (serial number 012002) in order to ensure that the dosimeters were all calibrated properly.10 (Tr. 186-88, 191-92, 197-200; Exs. 22, 39-45). In addition, IH Maloney pre-calibrated a sound level meter11 when she arrived at Respondent’s workplace on January 11, 2018.12 (Tr. 194, 201-02; Exs. 46-53). IH Maloney then recorded all of the pre-calibration data on her field notes.13 (Tr. 185-87, 197-201; Ex. 22, at 1).

On January 11, 2018, IH Maloney performed noise sampling on six of Respondent’s employees: Messrs. [redacted],14 [redacted],15 [redacted],16 [redacted],17 [redacted]18 and [redacted],19 by hanging a dosimeter on each employee’s waist and placing the attached microphone close to his ear.20 (Tr. 202; Ex. 21, at 1-4, Ex. 23). The dosimeters were worn by the employees that day from approximately 10:00 a.m. until around 2:30 p.m. (Tr. 203; Ex. 22, at 2, Ex. 23). Work stopped that day at around 2:30 p.m. because there was no more wood to cut. (Tr. 203; Ex. 22, at 3). IH Maloney then took the readings from the dosimeters and recorded the readings on her field notes. The relevant data recorded on her field notes are each employee’s name, the dosimeter’s serial number, the dose percentage reading at the 80 threshold ((66) DOSE % 80)21, average decibels (LAVG dB), and total time the dosimeter was on the employee. (Tr. 203-06; Ex. 22, at 2-3).

IH Maloney used the data recorded from the dosimeters to calculate whether or not the six employees were exposed over the time-weighted average (TWA) at the 80 percentage/85 decibels (dBA or decibels) on the A weighted scale threshold on Noise Survey Reports (Form OSHA-92). (Tr. 214-15, 274, 301; Ex. 23). IH Maloney focused on the 80 percentage/85 dBA threshold because she had sampled the employees for only about four and a half hours due to the wood running out.22 (Tr. 215, 247; Ex. 22, at 2). The Noise Survey Reports contain the calculations of the eight-hour TWA sound level for all six employees using the formula mandated in Appendix A to § 1910.95, section I(2). (Tr. 219-23; Ex. 23).23 That section of Appendix A provides that the eight-hour TWA sound level, in decibels, may be computed from the dose, in percent, by means of the formula: TWA = 16.61 log (Dose/100) + 90. All six employees who were sampled on January 11, 2018 were exposed at an eight-hour TWA sound level above the 85 dBA threshold. (Tr. 220, 228, 245-46; Ex. 20, at 6-7, Ex. 23).

For example, IH Maloney calculated the eight-hour TWA for Mr. [redacted], who was loading wood into the end matcher and the machine was cutting the wood, as follows:

69.9 (Dose at 80%) divided by 100 = 0.699

Log of .699 = -0.1555

-0.1555 multiplied by 16.61 = -2.583

-2.583 plus 90 = 87.42 TWA24

(Tr. 223-25; Ex. 23, at 1).

Further, IH Maloney calculated the eight-hour TWA for Mr. [redacted], as follows:

137.6 (Dose at 80%) divided by 100 = 1.376

Log of 1.376 = 0.1386

0.1386 multiplied by 16.61 = 2.302

2.302 plus 90 = 92.30 TWA

(Tr. 102, 227; Ex. 23, at 9).

In addition, IH Maloney also used a hand-held sound level meter to conduct instantaneous background noise readings while employees were working throughout the day at the workplace and recorded those readings in columns A and B on the Noise Survey Reports. (Tr. 194, 219; Exs. 23, 46-47). The noise level readings taken with the sound level meter were also over the action level of 85 decibels. (Tr. 194, 219; Exs. 23, 46-47).

D. Docket No. 18-1211

1. Citation 1, Item 1

Based on noise sampling performed by IH Maloney on January 11, 2018, six of Respondent’s employees working in the mill area of the workplace were exposed to continuous noise above the eight-hour TWA sound level of 85 dBA. (Tr. 181, 185, 220, 225-228; Ex. 20, at 6-7, Exs. 22-23).

Thomas Vavra was notified on or about June 12, 2012 that in April 2012 employees engaged in woodworking activities at the workplace were exposed to noise levels above the eight-hour TWA average sound level of 85 dBA. (Tr. 341, 346; Ex. 33, at 2, Ex. 38, at 50).

Respondent has never administered a hearing conservation program.25 (Tr. 181-82, 277, 343-44, 398; Ex. 28, at 1-2, ¶¶ 3-4, Ex. 38, at 45-46, 52). Respondent failed to ensure that audiograms/hearing tests were performed as required on employees when information indicated that the employees were exposed to noise levels above the eight-hour TWA sound level of 85 dBA.26 (Tr. 182, 185, 227, 301, 341-51, 420, 461, 477-78, 485, 499-502; Ex. 28, at 1-2, ¶ 4, Ex. 33, at 2, Ex. 38, at 49, 53-54). Respondent failed to train employees on the hazards of exposure to noise.27 (Tr. 182-83, 344, 349-50; Ex. 28, at 2, ¶¶ 9-10, Ex. 38, at 49, 53). Respondent failed to ensure that employees who had not received baseline audiograms/hearing tests always wore some type of hearing protection when information indicated that the employees were exposed to noise levels above the eight-hour TWA sound level of 85 dBA.28 (Tr. 183, 250-51, 341, 344-46; Ex. 21, at 2, Ex. 28, at 2, ¶ 9, Ex. 33, at 2, Ex. 38, at 48-49, 53). Respondent failed to do any monitoring of noise levels when information indicated that employees were exposed to noise levels above the eight-hour TWA sound level of 85 dBA. (Tr. 346-49; Ex. 33, at 2, Ex. 38, at 49-50). Respondent’s failure to institute a hearing conservation program as required by 29 C.F.R. § 1910.95(c)(1) exposed at least six of Respondent’s employees to the serious injury of hearing loss. (Tr. 231-32, 251).

THD was issued a citation for “Serious” violation of 29 C.F.R. § 1910.95(c)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Item 1a). (Jt. Pre-Hrg. Stmt., § 4(e); Tr. 341; Ex. 33, at 2). On August 30, 2012, Thomas Vavra signed an abatement certification on behalf of THD certifying that the violation of 29 C.F.R. § 1910.95(c)(1) contained in the citation issued in Inspection No. 331026 had been corrected/abated on April 22, 2012.29 (Jt. Pre-Hrg. Stmt., § 4(f); Tr. 342-43; Ex. 34). On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that the violation of 29 C.F.R. § 1910.95(c)(1) contained in the citation issued in Inspection No. 331026 had been abated. (Tr. 356; Ex. 30). In November 2012, Thomas Vavra signed a Stipulated Settlement on behalf of THD affirming the citation for violation of 29 C.F.R. § 1910.95(c)(1) in Inspection No. 331026 and certifying that the violation had been abated. (Jt. Pre-Hrg. Stmt., § 4(j); Tr. 341-42; Ex. 35). The representations made in the abatement certification, letter to OSHA and Stipulated Settlement all signed by Thomas Vavra relating to abatement of the citation for violation of 29 C.F.R. § 1910.95(c)(1) in Inspection No. 331026 were, at best, inaccurate. (Tr. 343-47, 350; Exs. 30-32, Ex. 38, at 52-53). The citation issued to THD on June 12, 2012 for violation of 29 C.F.R. § 1910.95(c)(1) in Inspection No. 331026 became a final order of the Occupational Safety and Health Review Commission (Commission) on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(k)). The violation of 29 C.F.R. § 1910.95(c) contained in the 2012 citation for Inspection No. 331026 was substantially similar to the violation of 29 C.F.R. § 1910.95(c)(1) as cited in Citation 1, Item 1 in Docket No. 18-1211.

2. Citation 1, Items 2a, 2b and 2c

Respondent did not develop, implement and/or maintain a written hazard communication program at its workplace on January 11, 2018.30 (Tr. 233-35, 351, 401; Ex. 8, at 7-8, Ex. 20, at 8, Ex. 28, at 2, ¶¶ 6-8, Ex. 38, 54-55, 58). Hazardous chemicals and materials such as propane,31 TC bed lubricant and various types of wood/wood dust, including white oak, red oak, maple, hickory, cherry, and walnut, were present and used in the workplace on January 11, 2018. The presence of these hazardous chemicals or materials at Respondent’s workplace required a written hazard communication program. (Tr. 233-34, 237-39, 402-03, 456-57, 478; Exs. 24-27, Ex. 38, at 54-55). Both Thomas and Anthony Vavra knew that hazardous chemicals and materials were present at the workplace. (Tr. 235). At the time of the OSHA 2018 inspection, Respondent did not have any safety data sheets at the workplace for propane, TC bed lubricant or wood/wood dust that employees were exposed to daily.32 (Tr. 236-37, 351-52, 356; Ex. 28, at 2, ¶ 8, Ex. 38, at 56-58). Respondent also did not provide information or training to employees on the hazardous chemicals and materials in their work area at the time of their initial assignment and whenever a new hazard was introduced into their work area.33 (Tr. 240-41, 352, 355-56, 486; Ex. 28, at 2, ¶¶ 7, 10, Ex. 38, at 58). The presence and use of hazardous chemicals and materials such as propane, TC bed lubricant and various types of wood/wood dust, including white oak, red oak, maple, hickory, cherry, and walnut, in the workplace on January 11, 2018 required Respondent to provide employees with training on hazardous chemicals and materials in the workplace. (Tr. 241). [redacted] testified that he had not received any training on propane while working at Timberline. (Tr. 486). Respondent’s failure to: a) develop, implement and/or maintain a written hazardous communication program in the workplace, b) have safety data sheets for each hazardous chemical in use at the workplace, and c) train employees on the hazardous chemicals in their work area, exposed all ten to fourteen of Respondent’s employees to violative conditions that could lead to death or serious physical harm as discussed further below. (Tr. 235-41; Ex. 25, at 1, Ex. 26, at 1-2, Ex. 27, at 1-2).

THD was issued citations for “Serious” violation of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) on June 12, 2012 in Inspection No. 331026 (Citation 1, Items 2a, 2b and 2c). (Jt. Pre-Hrg. Stmt., § 4(g) & (h); Tr. 354; Ex. 33, at 3-4, Ex. 38, at 57). The citations issued to THD in Inspection No. 331026 for violation of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) noted that propane and lubricant were among the hazardous chemicals at the workplace. (Ex. 33, at 3-4). On August 30, 2012, Thomas Vavra signed abatement certification on behalf of THD certifying that the violations of 29 C.F.R. § 1910.1200(e)(1), §1910.1200(g)(1) and § 1910.1200(h)(1) contained in the citations issued for Inspection No. 331026 had been corrected/abated on April 23, 2012.34 (Jt. Pre-Hrg. Stmt., § 4(i), Tr. 353; Ex. 34, Ex. 38, at 51-52).

On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that the violations of 29 C.F.R. § 1910.1200(e)(1), §1910.1200(g)(1) and § 1910.1200(h)(1) contained in the citations issued in Inspection No. 331026 had been abated. (Tr. 356; Ex. 30). In November 2012, Thomas Vavra signed a Stipulated Settlement on behalf of THD affirming the citations for violation of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) in Inspection No. 331026 and certifying that the violations had been abated.35 (Jt. Pre-Hrg. Stmt., § 4(j); Tr. 342-43; Ex. 35). The representations made in the abatement certification, letter to OSHA and Stipulated Settlement signed by Thomas Vavra relating to abatement of the citations for violations of 29 C.F.R. § 1910.1200(e)(1), § 1910.1200(g)(1) and § 1910.1200(h)(1) in Inspection No. 331026 were, at best, inaccurate. (Tr. 233-37, 240-41, 351-52, 355-56, 401; Exs. 30-32, Ex. 38, at 52-59). The citations issued to THD on June 12, 2012 in Inspection No. 331026 became a final order of the Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(k)).

The violation of 29 C.F.R. § 1910.1200(e)(1) contained in the 2012 citation for Inspection No. 331026 was substantially similar to the violation of 29 C.F.R. § 1910.1200(e)(1) as cited in Citation 1, Item 2a in Docket No. 18-1211. The violation of 29 C.F.R. § 1910.1200(g)(1) contained in the 2012 citation for Inspection No. 331026 was substantially similar to the violation of 29 C.F.R. § 1910.1200(g)(1) as cited in Citation 1, Item 2b in Docket No. 18-1211. The violation of 29 C.F.R. § 1910.1200(h)(1) contained in the 2012 citation for Inspection No. 331026 was substantially similar to the violation of 29 C.F.R. § 1910.1200(h)(1) as cited in Citation 1, Item 2c in Docket No. 18-1211.

E. Docket No. 18-1212

  1. Citation 1, Item 1

Citation 1, Item 1 in Docket No. 18-1212 has been withdrawn by the Secretary. A Stipulation of Withdrawal signed by both parties was received and approved by the Court at the commencement of the trial. (Tr. 8-9).

  2. Citation 1, Item 2

On January 19, 2018, a door designated as an emergency exit at the South end of the

mill that led outdoors at Respondent’s workplace was locked by a deadbolt.36 (Tr. 52-54, 120-23, 178, 244, 373; Exs. 6-7, 19, at 4, ¶ 4a). CSHO Calderon tried but was unable to open the door. (Tr. 52). IH Maloney testified that the “door was dead bolted shut. You had – you had to unlatch the deadbolt and push the bar.” (Tr. 243-44). A photograph of the exit door taken by CSHO Calderon is at Exhibit 7. (Tr. 52-53; Ex. 7). Photographs of the lock taken by CSHO Calderon are at Exhibit 6 and Exhibit 7, at A. (Tr. 53-54, 120; Exs. 6-7). In order to unlock the exit door, one had to lift up the deadbolt, slide it and then push the bar on the door. (Tr. 179, 243, 372; Exs. 6-7).

Thomas Vavra was aware the exit door was locked with a deadbolt. (Tr. 55, 372). He

told CSHO Calderon that the door was kept locked to keep the cold from getting into the building, which was not heated. The locked exit door exposed all ten to fourteen of Respondent’s employees to serious physical injuries resulting from delay in evacuating the workplace in the event of a fire hazard. (Tr. 54-55, 123-25, 177-78).

3. Citation 1, Item 3

On January 19, 2018, the exit sign above a designated exit door at the south end of the mill was not illuminated. (Tr. 11-12, 58-59, 126; Ex. 7). The unlit exit sign was in plain view. (Tr. 59; Ex. 7). The unlit exit sign exposed all ten to fourteen of Respondent’s employees to serious physical injuries resulting from an inability to see the exit door to evacuate the workplace in the event of a fire. (Tr. 59).

4. Citation 1, Item 4

Respondent provided portable fire extinguishers in the workplace for employees to use to fight fires. (Tr. 376, 460, 482; Ex. 38, at 31). Respondent’s employees were expected to use the fire extinguishers at the workplace in the event of a fire. (Tr. 63, 340, 460, 482; Ex. 38, at 33-34). Respondent did not train employees on the use of portable fire extinguishers and/or the hazards involved with incipient stage firefighting. (Tr. 61-62, 130-31, 160, 339-40, 377, 425, 459-60, 482; Ex. 18, at 2, ¶¶ 6, 9, Ex. 38, at 31, 34). Respondent’s failure to train employees on the use of portable fire extinguishers and/or the hazards involved with incipient stage fire-fighting exposed all ten to fourteen of its employees to serious physical injury, such as smoke inhalation or burns, in the event of a fire at the workplace. (Tr. 63).

5. Citation 1, Item 5 a) Whirlwind up-cut saw and b) Northtech up-cut saw

On January 11, 2018, the points of operation on both the Whirlwind and Northtech up-cut saws (also upcut saw) were completely unguarded. (Tr. 65, 71, 74). On January 11, 2018, Thomas Vavra told CSHO Calderon that guards get in the way of production. (Tr. 65-66, 71-72). On January 11, 2018, CSHO Calderon notified Thomas Vavra that both up-cut saws needed to be guarded. (Tr. 66).

On January 19, 2018, the Whirlwind and Northtech up-cut saws used by employees were not adequately guarded to protect Respondent’s employees from point of operation hazards. (Tr. 12, 64-67, 70-74, 132-35; Ex. 9). The blades of both up-cut saws are engaged by foot pedals which move the blades upward to cut wood. (Tr. 65, 378-79). On January 19, 2018 the guards installed for the points of operation on both up-cut saws did not fully guard employees from point of operation hazards. The guards still allowed for contact at the point of operation. (Tr. 66-67, 72; Ex. 9, at 1, “A”, at 3, “B”).

The photographs at pages 1 and 3, Exhibit 9, taken by CSHO Calderon on January 19, 2018, show a partial guard at page 1, “A”, and page 3, “B”, on the Whirlwind up-cut saw. (Tr. 66-68; Ex. 9, at 1, “A”, at 3, “B”). On January 19, 2018, CSHO Calderon observed Mr. [redacted] using the Whirlwind upcut saw with his hands about an inch from the point of operation.37 (Tr. 67-70; Ex. 9, at 3, “A”). Employees’ hands had to be so close to the point of operation because the employees “were required to push the wood to keep it in place on the saw.” (Tr. 70).

CSHO Calderon measured the one-inch distance from the employee’s hands to the point of operation on the Northtech upcut saw. (Tr. 72). Mr. [redacted] also told CSHO Calderon that the distance of the exposed additional space at the Northtech upcut saw was approximately four inches. (Tr. 72-73).

On both up-cut saws, approximately four inches were exposed between the bottom of the guards and the points of operation. (Tr. 70-73; Ex. 9, at 1, “A”, at 3, “B”). On both up-cut saws, employees’ hands were approximately one inch from the point of operation when the saws were in use. (Tr. 70-72; Ex. 9, at 3). The position of the guards on the up-cut saws were in plain view. (Ex. 9). Respondent’s failure to adequately guard the points of operation on the Whirlwind and Northtech up-cut saws exposed approximately four employees, including Mr. [redacted], to serious physical injury such as amputation. (Tr. 73-75, 137).

6. Citation 1, Item 6

On January 19, 2018, the pressure of two compressed air guns used by Respondent’s employees every workday to clean wood dust off machinery was not reduced to less than 30 pounds per square inch (p.s.i.). (Tr. 12, 76-81, 429; Ex. 10). The two compressed air guns were hooked up to a compressed air tank that had pressure at 90 p.s.i. (Tr. 161). Using an air pressure gauge, CSHO Calderon measured the pressure of the compressed air gun at the Maureen Johnson wood saw at 40 p.s.i. and at the Cantek planer38 cleaner at 50 p.s.i., respectively. (Tr. 77-78). CSHO Calderon observed two employees using the compressed air guns during her onsite inspection in January 2018. (Tr. 77, 80). The photograph at Exhibit 10, at 1, taken by CSHO Calderon in January 2018, shows an employee at the Cantek planer using an air gun without a reducer to clean off the wood dust from the equipment. (Tr. 78-83; Ex. 10, at 1). Thomas Vavra was aware that the two compressed air guns did not have reducers. He told CSHO Calderon that reducers “were no longer being used.” (Tr. 80-81, 429). Respondent’s failure to reduce the air pressure on two compressed air guns used for cleaning purposes to below 30 p.s.i. exposed approximately four employees, including Messrs. [redacted] and [redacted], to serious physical injury such as cuts to the skin, lacerations and/or embolisms. (Tr. 79-83).

7. Citation 1, Item 7

On January 11 and 19, 2018, the circuit breaker box powering various machinery at Respondent’s workplace was missing a dead front enclosure.39 (Tr. 13, 83-85, 142; Ex. 12).

The photograph at Exhibit 12, at 1, taken by CSHO Calderon on either January 11 or January 19, 2018, shows that the dead front was missing on the bottom half of the breaker box. (Tr. 85, 162; Ex. 12, at 1, “C”). Employees used the circuit breaker box to switch breakers for various machines every day. (Tr. 86-87, 91). The door to the circuit breaker box was left open and the exposed electrical parts were in plain view. Exposure allegedly occurred when the door was left open or when the door was opened whereupon in either instance employees were exposed to live parts because the dead front was missing. (Tr. 87, 91, 142, 161-62; Ex. 12). CSCO Calderon also testified that an employee could allegedly still be exposed to electrical shock or fire caused by the uncovered conduits and circuits inside even where the circuit breaker door was closed. (Tr. 143-44). Respondent’s failure to enclose all live electrical parts in the circuit breaker box allegedly exposed approximately two employees, including Messrs. [redacted] and [redacted], to serious physical injury such as electrical shock when they switched breakers. (Tr. 86-87; 144).

8. Citation 1, Item 8

a. Citation 1, Item 8a

On January 11 and 19, 2018, the circuit breaker box powering various machinery, including the planer, chop saw, and end matcher, at Respondent’s workplace had live openings missing filler plates. (Tr. 13, 89-90; Ex. 12). Employees used the circuit breaker box to switch breakers for various machinery every day. (Tr. 86-87, 91). The photograph at exhibit 12, page 1, taken by CSHO Calderon on either January 11 or January 19, 2018, shows the missing filler plates at “A”, “B”, and “C”. (Tr. 89; Ex. 12). The photograph at exhibit 12, page 2, taken by CSHO Calderon on either January 11 or January 19, 2018, shows the missing filler plate at “A”. (Tr. 89; Ex. 12, at 2, “A”). The door to the circuit breaker box was left open and the exposed electrical parts were in plain view. (Tr. 87, 91, 142, 161-62; Ex. 12). Respondent’s failure to close all live openings in the circuit breaker box exposed approximately two employees, including Messrs. [redacted] and [redacted], to serious physical injury such as electrical shock. (Tr. 91).

b. Citation 1, Item 8b

On January 11 and 19, 2018, a conduit box connected to the chipper was missing a cover. (Tr. 13, 91-92; Ex. 11). The conduit box connected to the chipper contained electrical conduit and wood chips. The conduit box was only covered with cardboard and duct tape. (Tr. 92; Ex. 11). The conduit box was in plain view. (Tr. 93-94; Ex. 11). The photograph at exhibit 11, page 1, taken by CSHO Calderon on either January 11 or January 19, 2018, shows the conduit box covered with a “piece of cardboard and tape.” (Tr. 92; Ex. 11, at 1). The photograph at exhibit 11, page 2, taken by CSHO Calderon on either January 11 or January 19, 2018, shows that the inside of the conduit box contains conduit and wood chips. (Tr. 92; Ex. 11, at 2). Respondent’s failure to properly cover the conduit box connected to the chipper exposed all ten to fourteen employees to a fire hazard. (Tr. 93).

9. Citation 2, Items 1a and 1b (Alleging Willful, Repeat, and Serious violations in the alternative)

On January 11 and 19, 2018, Respondent failed to establish a program consisting of energy control (lockout/tagout) procedures, employee training and periodic inspections for employees who performed servicing and/or maintenance on machines such as the planer, rip saw/ripper, moulder and upcut saws.40 CSHO Calderon testified that an energy control program is required when an employee could potentially be exposed to equipment reenergizing while they are performing maintenance, service or fixing the machine. (Tr. 13, 95-96, 157-58, 163-65, 258, 331, 337, 386, 451-52; Ex. 18, at 1-2, ¶¶ 3-5, Ex. 38, at 34, 37-38). Respondent’s employees regularly performed servicing and/or maintenance on the planer, rip saw/ripper, moulder and upcut saws such as replacing blades and knives and applying lubricant. (Tr. 96, 102-03, 108-12, 334, 403, 433, 447-49, 458-59, 468; Ex. 38, at 39-40). Respondent failed to train any employees who performed servicing and/or maintenance on the planer, rip saw/ripper, moulder and upcut saws on energy control procedures (lockout/tagout).41 (Tr. 98-104, 434; Ex. 18, at 1-2, ¶¶ 5, 9, Ex. 38, at 36). Respondent failed to do periodic inspections of energy control procedures at the workplace for employees who performed servicing and/or maintenance on machines such as the planer, rip saw/ripper, moulder and upcut saws.42 (Tr. 104; Ex. 18, at 1, ¶¶ 3-4). Although there were unopened locks and tags present at the workplace, none were used to lockout and/or tagout energy prior to OSHA’s 2018 inspection. (Tr. 97-98, 334; Ex. 16, at 2-3, Ex. 38, at 42-43). Respondent’s failure to establish a program consisting of energy control (lockout/tagout) procedures, employee training and periodic inspections exposed employees, including Messrs. [redacted], [redacted], and [redacted], to serious physical injuries such as amputation in the event a machine unexpectedly restarted while the employees were performing servicing and/or maintenance. (Tr. 102-05). Respondent failed to develop, document and/or utilize specific procedures for the control of potentially hazardous energy for employees who performed servicing and/or maintenance on machines such as the planer, rip saw/ripper, moulder and upcut saws. (Tr. 95-98, 102-14, 157-58, 163-67, 171-72, 331, 334, 337, 386, 434; Exs. 9, 13-16, Ex. 18, at 1-2, ¶¶ 3-5, Ex. 38, at 34, 38-40). The planer, rip saw/ripper, moulder and upcut saws on which Respondent’s employees performed servicing and/or maintenance were all powered by both electricity and air. (Tr. 105-13, 165-66, 460, 481-82; Ex. 15, at 2). Respondent’s failure to develop, document and/or utilize specific procedures for the control of potentially hazardous energy exposed employees, including Messrs. [redacted], [redacted], and [redacted], to serious physical injury such as amputation in the event a machine unexpectedly restarted while the employees were performing servicing and/or maintenance.43 (Tr. 114-15).

THD was issued a citation for “Serious” violation of 29 C.F.R. § 1910.147(c)(1) on June 12, 2012 in Inspection No. 330566 (Citation 1, Item 3) as a result of a April 10, 2012 OSHA inspection at 99 Harris Street, Fulton, New York 13069, the same inspection site as in this case.44 (Jt. Pre-Hrg. Stmt., § 4(e); Tr. 328-29; Ex. 29, at 1, 3). On August 30, 2012, Thomas Vavra signed an abatement certification on behalf of THD certifying that the violation of 29 C.F.R. § 1910.147(c)(1) contained in the citation issued for Inspection No. 330566 had been corrected/abated on April 24, 2012. (Jt. Pre-Hrg. Stmt., § 4(g); Tr. 264-65, 330; Ex. 31).45 On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that the violation of 29 C.F.R. § 1910.147(c)(1) contained in the citation issued in Inspection No. 330566 had been abated.46 (Tr. 356; Ex. 30). In November 2012, Thomas A. Vavra signed a Stipulated Settlement on behalf of THD affirming the citation for violation of 29 C.F.R. § 1910.147(c)(1) in Inspection No. 330566 and certifying that the violation had been abated.47 (Jt. Pre-Hrg. Stmt., § 4(h); Tr. 263-64, 329-30, 336, 357; Ex. 32). The representations made in the abatement certification, letter to OSHA and Stipulated Settlement signed by Thomas Vavra relating to abatement of the citation for violation of 29 C.F.R. § 1910.147(c)(1) in Inspection No. 330566 were, at best, not accurate. (Tr. 337; Exs. 30-32, 38, at 40-41). The citation issued to THD for violation of 29 C.F.R. § 1910.147(c)(1) on June 12, 2012 in Inspection No. 330566 became a final order of the Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(i)). The violation of 29 C.F.R. § 1910.147(c)(1) contained in the citation for Inspection No. 330566 was substantially similar to the violation of 29 C.F.R. § 1910.147(c)(1) as cited in Citation 2, Item 1a in Docket No. 18-1212.

Thomas Vavra told CSHO Calderon that Respondent had not developed specific procedures to control potentially hazardous energy for its Cantek planer, Maureen ripsaw, the [LMC 630] moulder, and the Whirlwind and Northtech upcut saws.48 (Tr. 105-06). CSHO Calderon testified that lockout/tagout procedures were required for the moulder because moulders have multiple energy sources, such as electrical and air (also pneumatic).49 (Tr. 107, 258-59, 460). She said she never observed a lock on the lockout point of a moulder. (Tr. 107-08; Ex. 13, at 3). Two photographs at exhibit 13, taken by CSHO Calderon on either January 11 or 18, 2018, show the moulder. (Tr. 106-07; Ex. 13, at 1-2). CSHO Calderon testified that Mr. [redacted] told her that employees performed service or maintenance on moulders, including changing knives, on an as needed basis. (Tr. 108). At trial, Mr. [redacted] testified that he switched knives on the moulder “probably once or maybe twice a week.” Knives, also referred to as blades, are switched to provide “a better outcome on the flooring, the finish, and everything.” (Tr. 448, 459).

The photograph at exhibit 14, taken by CSHO Calderon on either January 11 or 18, 2018, shows the Cantek planer. (Tr. 109; Ex. 14, at 1). CSHO Calderon said she never observed a lock on the lockout point of the Cantek planer. (Tr. 110; Ex. 14, at 3-4). CSHO Calderon testified that lockout/tagout procedures were required for the Cantek planer because it had multiple energy sources, such as electrical and air. (Tr. 110, 258-59, 481-82). CSHO Calderon testified that Mr. [redacted] told her that employees performed service or maintenance on the Cantek planer, including changing knives, bimonthly. (Tr. 110-11).

The photograph at exhibit 15, taken by CSHO Calderon on either January 11 or 18, 2018, shows the Whirlwind Upcut saw. (Tr. 111; Ex. 15, at 1). CSHO Calderon testified that specific procedures for energy control were required for the Whirlwind Upcut saw because it had multiple energy sources, such as electrical and air. (Tr. 110, 258-59). CSHO Calderon testified that Mr. [redacted] told her that employees performed service or maintenance on the Whirlwind Upcut saw, including changing knives. (Tr. 111-12).

CSHO Calderon testified that specific procedures for energy control were required for the Maureen-Johnson Ripsaw because it had multiple energy sources, such as electrical and air. (Tr. 112-13). CSHO Calderon testified that [redacted] told her that employees performed service or maintenance on the Maureen-Johnson Ripsaw, including changing knives six times per week.50 (Tr. 112-13).

CSHO Calderon testified that lockout/tagout procedures were required for the Northtech saw because it had multiple energy sources, such as electrical and air. (Tr. 110). CSHO Calderon testified that Mr. [redacted] told her that employees performed service or maintenance on the Northtech saw, including changing knives, bimonthly. (Tr. 113-14).

Respondent’s failure to develop, document and/or utilize specific procedures for the control of potentially hazardous energy on the Cantek planer, Maureen-Johnson Ripsaw, LMC 630 moulder, and Whirlwind and Northtech upcut saws, exposed employees, including Messrs. [redacted], [redacted], and [redacted], to serious physical injury such as amputation in the event a machine unexpectedly restarted while the employees were performing servicing and/or maintenance, including changing knives and blades. (Tr. 114-15).

The violation of 29 C.F.R. § 1910.147(c)(1) contained in the 2012 citation for Inspection No. 330566 was substantially similar to the violation of 29 C.F.R. § 1910.147(c)(4)(i) as cited in Citation 2, Item 1b in Docket No. 18-1212.

10. Citation 2, Item 2 (Alleging Willful, Repeat, and Serious violations in the alternative)

Respondent failed to train and evaluate all employees who operated PITs to ensure that they were competent to operate them safely.51 (Tr. 115-18, 159, 337-39, 461, 476, 484-85; Exs. 17, 18, at 2, ¶¶ 7, 9, Ex. 38, at 43-44). At the time of the 2018 OSHA inspection, two forklifts were routinely operated by Mr. Vavra and employees at the workplace. Two employees use a forklift to bring lumber to equipment such as the moulder. Mr. [redacted] testified that a forklift is used about twelve times each eight-hour day to bring lumber to the moulder. A third forklift is available as a backup. (Tr. 116, 337-38, 395-96, 454-55, 461, 476, 484-85; Ex. 17, Ex. 38, at 43-44). Thomas Vavra told CSHO Calderon that Respondent had not trained or evaluated for competency PIT operators. (Tr. 115-16). On January 11, 2018, she observed Mr. [redacted] unsafely operating a PIT as he was not wearing a seatbelt. She also observed Messrs. [redacted] and Anthony Vavra operating a forklift. She said that a forklift was being operated the entire time she was at Respondent’s worksite. (Tr. 158-60). Mr. [redacted] told CSHO that Respondent “did not train the operators or test them.” 52 (Tr. 117). [redacted] told the CSHO that he had not had any training. (Tr. 159). Respondent’s failure to ensure that all PIT operators were competent exposed all ten to fourteen employees to serious physical injuries from the hazard of being struck by a forklift or other materials. (Tr. 118).

THD was issued a “Serious” citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) on June 12, 2012 in Inspection No. 330566 (Citation 1, Item 4). (Jt. Pre-Hrg. Stmt., § 4(f); Tr. 328-29; Ex. 29, at 4). On August 30, 2012, Thomas Vavra signed an abatement certification on behalf of THD certifying that the violation of 29 C.F.R. § 1910.178(l)(1)(i) contained in the citation issued for Inspection No. 330566 had been corrected/abated on April 23, 2012.53 (Jt. Pre-Hrg. Stmt., § 4(g); Tr. 330; Ex. 31). On or about August 30, 2012, Thomas Vavra sent a signed letter to the Syracuse OSHA Area Office representing that the violation of 29 C.F.R. § 1910.178(l)(1)(i) contained in the citation issued in Inspection No. 330566 had been abated. (Tr. 356; Ex. 30). In November 2012, Thomas Vavra signed a Stipulated Settlement on behalf of THD affirming the citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) in Inspection No. 330566 and certifying that the violation had been abated. (Jt. Pre-Hrg. Stmt., § 4(h); Tr. 339; Ex. 32). The representations made in the abatement certification, letter to OSHA and Stipulated Settlement signed by Thomas Vavra relating to abatement of the citation for violation of 29 C.F.R. § 1910.178(l)(1)(i) in Inspection No. 330566 were, at best, not accurate. (Tr. 339; Exs. 30-32, Ex. 38, at 45). The citation issued to THD for violation of 29 C.F.R. § 1910.178(l)(1)(i) on June 12, 2012 in Inspection No. 330566 became a final order of the Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(i)). The violation of 29 C.F.R. § 1910.178(l)(1)(i) contained in the 2012 citation for Inspection No. 330566 was substantially similar to the violation of 29 C.F.R. § 1910.178(l)(1)(i) as cited in Citation 2, Item 2 in Docket No. 18-1212.

IV. THE SECRETARY’S BURDEN OF PROOF

To demonstrate a prima facie violation of a standard under the OSH Act, the Secretary must show that: (1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; and (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition. NY State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d Cir. 1996); Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982); see also Public Util. Maint. v. Sec’y of Labor, 417 F.App’x. 58, 62 (2d Cir. 2011). It is sufficient for the Secretary to prove access to the zone of danger, rather than actual exposure to the immediate risk of injury or death. Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 811-812 (3d Cir. 1985). The Secretary must show only that it was “reasonably certain that some employee was or would be exposed to the danger” of the cited hazard, not that an employee was actually injured or that an accident occurred. Mineral Indus. & Heavy Constr. Group, 639 F.2d 1289, 1294 (5th Cir. 1981).

V. DISCUSSION

A. ALL THE WILLFUL CITATION ITEMS ARE AFFIRMED.

A willful violation under section 17(a) of the OSH Act is “an act done voluntarily with either an intentional disregard of, or plain indifference to the Act’s requirements.” A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341, 1345 (D.C. Cir. 2002) (citing Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123, 1127 (D.C. Cir. 2001)). Such a violation is distinguished from other types of violations by the employer’s heightened awareness of the violative nature of its conduct or the conditions at its workplace. A Schonbek & Co. Inc. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981). The Second Circuit, in which this case arises, adopted the Commission’s and OSHA’s definition of a willful violation as one “done either with intentional disregard of, or plain indifference to, the statute.” See Am. Recycling & Mfg. Co., Inc. v. Sec’y of Labor, 676 F.App’x. 65, 69 (2d Cir. 2017) (unpublished); A Schonbek & Co. Inc., 646 F.2d at 800.

Intentional or conscious disregard must be established by evidence “that an employer knew of an applicable standard or provision prohibiting the conduct or condition, and consciously disregarded the standard.” Caterpillar, Inc., No. 87-0922, 1993 WL 44416, at *23 (O.S.H.R.C., Feb. 5, 1993). “Plain indifference” may be inferred where “if the employer had known of the standard or provision, the employer would not have cared that the conduct or conditions violated it.” Id. In addition to knowledge or plain indifference, other factors can be considered in assessing the appropriateness of a willful violation. These factors include the employer’s general attitude towards safety and good faith efforts made to comply. See e.g., Asbestos Textile Co., Inc., No. 79-3831, 1984 WL 34962, at *1 (O.S.H.R.C., Oct. 31, 1984); Mobile Oil Corp., No. 79–4802, 1983 WL 23910, at *1 (O.S.H.R.C., Oct. 28, 1983). “An employer that consciously disregards an OSHA standard acts willfully even though it believes in good faith that the violation is not hazardous to employees.” Sec’y v. Capital Citv Excavating Co., Inc., 712 F.2d 1008, 1010 (6th Cir. 1983).

An act may be willful if the employer shows “indifference to the rules; he need not be consciously aware that the conduct is forbidden at the time he performs it, but his state of mind is such that, if he were informed of the rule, he would not care.” AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004); Brock v. Morello Bros. Constr., Inc. 809 F.2d 161, 164 (1st Cir. 1987); see also Capeway Roofing Sys., Inc. v. Chao, 391 F.3d 56, 60-61 (1st Cir. 2004). (Sec’y Post Hrg. Br., at 29-30).

The record establishes that Respondent, generally through Thomas Vavra’s knowledge and actions, exhibited both intentional disregard and plain indifference to the requirements for all of the willfully cited standards, as addressed in detail below.

Mr. Vavra, co-owner and sole manager of Respondent, had a heightened awareness of the hazardous conditions presented by all the willful violations in this case because his nearly identical predecessor company located at the same workplace, THD, Inc., was cited in July 2012 for violation of all the same standards where willful violations are now alleged. (Tr. 328-29, 341, 354; Ex. 29, at 3-4, Ex. 33, at 2-4, Ex. 38, at 50, 57; Jt. Pre-Hrg. Stmt., §§ 4(j)-(n)). THD also manufactured hardwood flooring, operated out of the same address, used the same equipment and employed many of the same employees as Respondent. (Tr. 326-27, 364, 438, 464, 494; Ex. 38, at 14, 16, 19). The prior 2012 citations addressed the same hazardous conditions as all the willful items in Docket Nos. 18-1211 and 18-1212. “[A] willful violation can be found where an employer has been previously cited for violations of the standards in question, is aware of the requirements of the standards, and is on notice that violative conditions exist.” J.A. Jones Constr. Co., No. 87-2059, 1993 WL 61950, at *9 (O.S.H.R.C., Feb. 19, 1993).

In addition to his heightened awareness of the requirements of the standards as a result of receiving those 2012 citations, Mr. Vavra also signed settlement agreements with the Secretary affirming all the prior 2012 citations, yet never took meaningful steps to comply with those standards. (Exs. 32, 35). Mr. Vavra failed to come into compliance with the cited standards. He also affirmatively misled OSHA in multiple documents by claiming that THD had abated the 2012 violations, when it had not. On August 30, 2012, Mr. Vavra signed a letter and abatement certifications on behalf of THD certifying that all the cited violations had been corrected/abated in April 2012. (Tr. 330, 341-43, 353, 356; Exs. 30-31, 34).

In November 2012, Mr. Vavra signed two Stipulated Settlement Agreements on behalf of THD affirming all the prior citations and again certifying that they had all been abated. (Tr. 329-30, 336, 339, 341, 357; Exs. 32, 35). As set forth below, all Mr. Vavra’s representations regarding the supposed abatement of the 2012 citation items issued to THD in 2012 were, at best, inaccurate. Mr. Vavra’s misrepresentations to OSHA in 2012 are evidence that support a finding of willful conduct in 2018. See Hardaway Co., No. 89-64, 1990 WL 118151, at *7 (O.S.H.R.C.A.L.J., Feb. 5, 1990); Kilby & Gannon Constr. Serv., LLC, No. 10-0755, 2012 WL 10829293, at *18 (O.S.H.R.C.A.L.J., May 14, 2012).

Not only had Mr. Vavra not abated the 2012 citations at the time he claimed to have done so, he still had not come into compliance with any of the standards cited in Docket Nos. 18-1211 and 18-1212 at the time of OSHA’s inspections in January 2018, nearly six years later. “An employer who knows an employee is exposed to a hazard and fails to correct or eliminate the hazardous exposure commits a willful violation if the employer knows of the legal duty to act, for an employer’s failure to act in the face of a known duty demonstrates the knowing disregard that characterizes willfulness.” Branham Sign Co., No. 98-752, 2000 WL 675530, at *2 (O.S.H.R.C., May 15, 2000). Supervisor [redacted] exemplified Respondent’s indifference to workplace safety when he testified that they do not use lockout/tagout procedures on the moulder because “you wouldn’t make any money.”54 (Tr. 453). For all of the willful items in this case, Mr. Vavra had heightened awareness of the violations, knew Respondent was not in compliance with the cited standards and misled OSHA about THD having abated the conditions. The willful items are affirmed as cited. (Sec’y Post Hrg. Br., at 30-32).

All the items cited as willful were also repeat violations under section 17(a) of the OSH Act, 29 U.S.C. § 666(a). A violation is repeated if, at the time of the time of the alleged repeated violation, there was a Commission final order against the same employer for substantially similar violations. Potlach Corp., No.16183, 1979 WL 61360, at *3 (O.S.H.R.C. Jan. 22, 1979).

As discussed above, on June 12, 2012, Respondent’s predecessor THD was issued safety and health citations for violations of the same OSHA standards that were cited in the willful citations in Docket Nos. 18-1211 and 18-1212. (Exs. 1, 20, 29, 33). Mr. Vavra signed Stipulated Settlement Agreements with the Secretary affirming all of the 2012 citations in November 2012. (Exs. 32, 35). All of the citations issued to THD in June 2012 became a final order of the Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(k) (Docket No. 18-1211), Jt. Pre-Hrg. Stmt., § 4(i) (Docket No. 18-1212)).

The citations issued to THD in 2012 are a proper basis for a repeat classification of citations in this case. In Sharon & Walter Constr., Inc., No. 00-1402, 2010 WL 4792625 (O.S.H.R.C., Nov. 18, 2010), the Commission found that citations against a predecessor entity may be used against the successor if there is substantial continuity between them. Id., at *11. The Commission adopted the “substantial continuity” test used by the National Labor Relations Board (NLRB) which looks to the following factors: (1) whether the businesses of both employers is essentially the same; (2) whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and (3) whether the new entity has the same production process, produces the same products and basically has the same body of customers. Id., at *9; see Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987).

The Commission viewed the substantial continuity test formulated by the NLRB as focusing on three categories of factors. The first category examines the nature of the business and is important “because continuity in the type of business, products/services offered and customers served indicates that there has been no substantive change in the enterprise. Such continuity also typically indicates that the nature of the activities associated with the business and the inherent safety and health considerations are likewise unchanged.” Sharon & Walter Constr., Inc., 2010 WL 4792625, at *10. The second category examines the jobs and working conditions which “is especially relevant under the Act because of its close correlation with particular safety and health hazards.” Id. The third category looks to the personnel who control decisions regarding safety and health and is important “because the decisions of such personnel relate directly to the extent to which the employer complies with the statute’s requirements.” Id., at *10.

Here, all three criteria of the Commission’s substantial continuity test weigh strongly in favor of successor liability. The first and second criteria, nature of the business and personnel, are both met because Respondent is engaged in the same exact same type of business activity (hardwood flooring manufacturing) as THD, operating out of the same location, employing the same employees, and using the identical machinery and equipment. (Tr. 323-28, 364, 438, 464, 494; Exs. 29-30, 33, Ex. 38, at 14, 16, 19). Mr. Vavra testified that other than a change in the identities of his co-owners, there was no difference at all between THD and Respondent. (Tr. 328; Ex. 38, at 19-20). The third criteria, continuity of decision-making personnel, is similarly met because Mr. Vavra solely ran both the day-to day business of THD in 2012 as well as the day-to–day business of Respondent. (Tr. 324-26; Ex. 38, at 9-15). Mr. Vavra was responsible for Respondent’s safety programs, training Respondent’s employees on safety and ensuring Respondent’s compliance with OSHA standards. (Tr. 325-26; Ex. 38, at 13-14). “Substantial continuity” has been shown. As such, the citations issued to THD in 2012 can be used as a basis for repeat classifications in Docket Nos. 18-1211 and 18-1212. (Sec’y Post Hrg. Br., at 32-34).

B. DOCKET NUMBER 18-1211

     1.  Citation 1, Item 1: Willful Failure to Establish a Hearing Conservation

     Program

29 C.F.R. § 1910.95(c)(1) requires that an employer shall administer a continuing, effective hearing conservation program whenever employee noise exposures equal or exceed an 8-hour TWA sound level of 85 dBA. (Tr. 274, 301). The 8-hour TWA of 85 dBA is referred to in the standard as the “action level.” 29 C.F.R. § 1910.95(c)(2). When employees are exposed to noise above the action level, the employer is required to administer a hearing conservation program that includes monitoring of sound levels in the workplace, notifying employees of sound levels at or above the action level, providing baseline and annual audiograms/hearing tests to employees at no cost, providing hearing protection to employees, ensuring hearing protection is worn by all employees, training employees on the hazards of noise exposure and the proper use of hearing protection and recordkeeping of the results of all employee audiograms/hearing tests. (Tr. 184). See 29 C.F.R. § 1910.95(c) – (n); Reich v. Trinity Indus. Inc., 16 F.3d 1149, 1150 (11th Cir. 1994).

The cited standard applies because noise sampling performed by IH Maloney on January 11, 2018 established that six of Respondent’s employees were exposed to continuous noise above the action level of 85 dBA. (Tr. 205, 301; Ex. 20, at 6-7, Ex. 22, at 2-3, Ex. 23). As detailed in the above Findings of Facts, the Court finds that IH Maloney’s sampling results and calculations are credible and reliable and she testified in detail how she conducted noise sampling and calculated noise exposure on January 11, 2018 at the workplace. The Court finds that the allegation set forth in Citation 1, Item 1a) pertains to Mr. [redacted], 1b) pertains to Mr. [redacted], 1c) pertains to Mr. [redacted], 1d) pertains to [redacted], 1e) pertains to [redacted], and 1f) pertains to Mr. [redacted]. (Exs. 20, 22-23). Respondent failed to comply with § 1910.95(c)(1) because it is undisputed that no hearing conservation program was administered at the workplace as of January 11, 2018. Mr. Vavra admitted that Respondent had no hearing conservation program. (Tr. 181-82, 277, 343-44; Ex. 28, at 1, ¶¶ 3-4, Ex. 38, at 45-46, 52). In its Post Trial Brief, Respondent admitted “Timberline’s program did not fully comply with the statute” and acknowledged that “Timberline violated the regulation by failing to have mandatory testing procedures in place.” (Resp’t Post Trial Br., at 18).

  Mr. Vavra had knowledge of the condition because he was put on notice on or about June 12, 2012 that as a result of an OSHA inspection in April 2012 employees working for THD at the same workplace performing the same work using the same machines as at the time of the inspection in Docket No. 18-1211 were exposed to noise levels above the eight-hour TWA sound level of 85 dBA. (Tr. 327-28, 341, 346-48; Ex. 33, at 2, Ex. 38, at 19-20, 50). The noisy conditions at the workplace were readily apparent. CSHO Calderon testified that on the first day of her onsite inspection, January 9, 2018, it was so loud in the workplace that she could barely have a conversation with someone standing close to her. (Tr. 49). As a result of the noisy conditions, she made a referral to her Area Office for a health inspection to be initiated. (Tr. 49). Despite the noisy conditions, and its knowledge of the 2012 sampling results and citation, Respondent never provided or ensured that employees had baseline and/or annual audiograms/hearing tests. (Tr. 182, 185, 227, 341-51, 420, 461, 477-78, 485, 499-502; Ex. 23, at 1, 3, 5, 7, 9, Ex. 28, at 1, ¶ 4, Ex. 33, at 2, Ex. 34, Ex. 38, at 49, 53-54). Mr. Vavra admitted that he did not make hearing tests mandatory.55 Mr. Vavra testified that it was the employee’s responsibility to ask for a hearing test. (Tr. 184, 369-70, 398-99, 420, 456; Ex. 38, at 48).

Respondent failed to do any monitoring of noise levels at the workplace and failed to train employees on the hazards of exposure to noise. (Tr. 182-83, 344-50; Ex. 28, at 2, ¶¶ 9-10, Ex. 38, at 49-53). Although Respondent did provide employees with earplugs, it failed to ensure that all employees always wore some type of hearing protection. On January 11, 2018, CSHO saw one employee, Laborer Mr. [redacted], working by a machine not wearing ear plugs. Instead, he was wearing ear buds listening to music.56 On January 19, 2018, she saw three employees not wearing ear plugs. IH Maloney testified that there were three employees who told her that they never wore ear plugs.57 (Tr. 183, 250-51, 341, 344-46, 349; Ex. 21, at 2, Ex. 23, at 11, Ex. 28, at 2, ¶ 9, Ex. 33, at 2, Ex. 38, at 48-49, 53). Respondent also failed to train employees on the importance of using hearing protection and how to properly wear it. (Tr. 183-84, 250-51, 344). Failure to train the employees and to ensure the use of hearing protection was apparent because during the 2018 OSHA inspection not all employees were wearing hearing protection and one employee, Mr. [redacted], was only wearing ear buds to listen to music. (Tr. 183, 250-51; Ex. 21, at 2). Mr. Vavra testified that he left it up to the employees whether to use hearing protection and admitted that some listened to music while working. (Tr. 344; Ex. 38, at 48-49).

Respondent failed to produce any persuasive evidence to contradict or discredit the noise sampling or calculations performed by IH Maloney at the workplace. At his deposition, Mr. Vavra testified that he subjectively did not “find it’s all that loud in there” but then acknowledged that OSHA found it to be otherwise. (Ex. 38, at 53). He testified at trial that he never took any action to assess employees’ exposure to noise prior to the OSHA inspection in January 2018. (Tr. 346). At the trial, Respondent attempted to argue that the noise sampling calculations were unreliable because the employees were not sampled for a full eight-hour period. However, both IH Maloney and AD Prebish58 testified that the sampling and the calculation contained in Appendix A to the standard considers any time not sampled. See Appendix A to § 1910.95, section I(2). (Tr. 246-47, 272, 294-97). AD Prebish explained that the calculations are based on an eight-hour TWA and any time not sampled is considered zero or no exposure. (Tr. 272, 294-96). See Swiftex Inc., No. 90-1393, 1992 WL 226438, at *4 (O.S.H.R.C.A.L.J., Aug. 31, 1992) (noting that “not sampling for a full eight hours is actually to the employer’s advantage because any unsampled periods assume zero exposure.”). The January 11, 2018 noise sampling results were also consistent with the results found in the 2012 inspection of THD. (Ex. 23, Ex. 33, at 2).

Respondent’s failure to administer a continuing, effective hearing conservation program exposed at least six employees to hearing loss. (Tr. 231-32, 277-78). IH Maloney and AD Prebish both testified that the requirements of § 1910.95(c) including employee training, baseline and annual audiograms/hearing tests and proper use of hearing protection are all integral to minimize employees’ hearing loss. (Tr. 184, 248-51, 279-98, 299-300). See Reich v. Trinity Indus., Inc., 16 F.3d at 1151 (An employer subject to the hearing conservation program must perform baseline audiograms of employees against which subsequent audiograms may be compared); Miniature Nut and Screw Corp., No. 93-2535, 1996 WL 88763, at *2 (O.S.H.R.C., Feb. 23, 1996) (An employer’s failure to conduct audiometric testing may allow hearing loss to go undetected, thereby preventing the employee and his employer from becoming aware of the situation and taking appropriate remedial measures.). (Sec’y Post Hrg. Br., at 34-38).

It its Post-Trial Brief, Respondent notes that the TWA dBA level for the six noise sampled employees was between 87-92, “only barely above the 85db level where a hearing conservation program is required.” It also notes that all of its employees were offered ear plugs as hearing protection devices. Consequently, Respondent argues “its violation in failing to provide [audiogram] testing and education (training) is really only a paperwork violation.” (Resp’t Post-Trial Br., at 11; Sec’y Reply Br., at 4).

The Court does not view Respondent’s failure to comply with the cited standard as “really only a paperwork violation.” Respondent’s action as recounted above constitutes a clear violation of the cited standard warranting meaningful penalties.

  Citation 1, Item 1 was properly classified as willful.59 As noted in section VA2 supra, Mr. Vavra had a heightened awareness of the requirements of § 1910.95(c)(1) because of the prior citation issued to THD. (Jt. Pre-Hrg. Stmt., § 4(e); Tr. 341; Ex. 33, at 2). See N. Atl. Fish Co., No. 98-0848, 2001 WL 1263331, at *15 (O.S.H.R.C.A.L.J., July 9, 2001) (consolidated) (finding willful violation of 29 C.F.R. § 1910.95(c)(1) where employer previously warned of excessive noise levels). The noise conditions at the workplace had not materially changed from 2012 to 2018. As a result of the 2012 citation, Mr. Vavra knew that employees were exposed to noise levels above the eight-hour TWA sound level of 85 dBA. (Tr. 301, 341, 346-48; Ex. 33, at 2, Ex. 38, at 50).

In the abatement certification he signed and submitted to OSHA in August 2012, Mr. Vavra certified that corrective actions were taken to abate the hearing conservation violation.60 The record shows that all of Mr. Vavra’s representations and certifications to OSHA in 2012 that the citation for violation of 29 C.F.R. § 1910.95(c)(1) had been abated were, at best, not accurate.61 (Tr. 343-47, 350; Exs. 30, 34-35, Ex. 38, at 52-53). At trial, Mr. Vavra admitted that other than buying earplugs, he failed to take any of the other abatement measures he attested to on the abatement certification including training, monitoring and hearing tests.62 (Tr. 348-50). Mr. Vavra testified that as of December 11, 2019, none of Respondent’s employees had received audiograms/hearing tests.63 (Tr. 347, 350-51).

In addition, IH Maloney testified that when she asked Mr. Vavra if he had provided the employees with audiograms, his response was that he was not going to pay for employees to get a hearing test if they were not working. (Tr. 184). The company’s limited “safety program” contained in its Employee Handbook is severely lacking in any substantive information. (Ex. 8, at 7-8). Respondent did not provide employees with any safety or health training. Mr. Vavra’s lax attitude towards safety and health, inaccurate misrepresentations to OSHA in 2012, and lack of good faith efforts to comply with the hearing conservation standard establish the willfulness of Citation 1, Item 1. (Sec’y Post Hrg. Br., at 38-40).

The Court further finds that Citation 1, Item 1 was a repeat violation of 29 C.F.R. § 1910.95(c). (Tr. 9-10; Ex. 20, at 6-7). On June 12, 2012, Respondent’s predecessor at the workplace, THD, was issued a citation for violation of 29 C.F.R. § 1910.95(c)(1) in Inspection No. 331026 (Citation 1, Item 1a). (Ex. 33, at 2). The prior citation found that two of Mr. Vavra’s employees operating the same or similar woodworking machinery as in the instant case were exposed to noise levels above the action level in the same workplace. (Ex. 20, at 6-7, Ex. 33, at 2). In November 2012, Mr. Vavra signed a Stipulated Settlement on behalf of THD affirming the citation for violation of 29 C.F.R. § 1910.95(c).64 (Ex. 35). The citation issued to THD for violation of 29 C.F.R. § 1910.95(c)(1) on June 12, 2012 in Inspection No. 331026 became a final order of the Commission on February 6, 2013. (Jt. Pre-Hrg. Stmt., § 4(k) (Docket No. 18-1211)). Because Respondent violated the same standard and employees were exposed to the same hazard of hearing loss, Citation 1, Item 1 was also a repeat violation of § 1910.95(c)(1).

  In addition to being willful and repeat, Citation 1, Item 1 constituted a serious violation. Section 17(k) of the Act provides:

...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...in such a place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.    

(Tr. 9-10). 29 U.S.C. § 666(k). See Sec’y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 401 (3d Cir. 2007); Mosser Constr., Inc., No. 08-0631, 2010 WL 711322, at *2 (O.S.H.R.C., Feb. 23, 2010). Serious physical harm is the type of injury that requires hospitalization and/or medical treatment and could keep an employee out of work for a few days or more. The determination as to what is considered serious physical harm is made on a case-by-case basis. In making such determination the court looks to the nature of the hazard against which the standard was intended to protect. Anaconda Aluminum Co., No. 13102, 1981 WL 18874, at *20 (O.S.H.R.C., Mar. 31, 1981).

  Here, at least six employees were exposed to hearing loss from prolonged exposure to noise. (Tr. 231-32). The Commission has characterized hearing loss as serious physical harm within the meaning of section 17(k) of the OSH Act. Miniature Nut and Screw Corp., 1996 WL 88763, at *2 (“failure to make audiometric tests available to employees can result in serious physical harm.”) (emphasis in original); Sun Shipbuilding & Drydock Co., No. 268, 1974 WL 4588, at *2 (O.S.H.R.C., Aug. 28, 1974) (hearing impairment constitutes a serious injury where exposure occurs over a normal working lifetime). (Sec’y Post Hrg. Br., at 40-41).

Pursuant to section 17(j) of the OSH Act, in assessing penalties the Commission must give due consideration to the following factors: (1) the size of the employer’s business; (2) gravity of the violation; (3) good faith; and (4) prior history of violations. 29 U.S.C. § 666(j); L & L Painting, Co., No. 05-0055, 2012 WL 3552925, at *18 (O.S.H.R.C., June 28, 2012); Mosser Constr. Inc., 2010 WL 711322, at *4; Valdak Corp., No. 93-0239, 1995 WL 139505, at *4 (O.S.H.R.C., Mar. 29, 1995), aff'd, 73 F.3d 1466 (8th Cir. 1996). Gravity of a violation is the primary factor in the penalty assessment. The gravity of a particular violation depends upon such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury could result. Mosser Constr., 2010 WL 711322, at *4; Valdak Corp., 1995 WL 139505, at *4.

  As discussed above, Respondent’s violation of § 1910.95(c)(1) was willful, repeat and serious. The gravity of a violation is determined by its severity and its probability. AD Prebish testified that the gravity-based penalty proposed for Citation 1, Item 1 was $129,336 because the gravity of the violation was rated “High (Severity)” and “Greater (Probability).” 65 (Tr. 278-79). All six exposed employees gave IH Maloney information regarding their work activity and how long they did it every day (usually 8 hours) and she recorded that information on the Noise Survey Reports at Box 12.c. (Tr. 217-18, 226-27; Ex. 23, at 1, 3, 5, 7, 9, 11). The six employees had worked for Mr. Vavra at the workplace for periods ranging from five to eighteen years. (Tr. 217; Ex. 23, at 1, 3, 5, 7, 9, 11, Box 12.b.). They were exposed to noisy conditions without audiograms or other hearing conservation precautions for long periods of time. Given the risk of hearing loss and the willful and repeat nature of the violation, OSHA used appropriate judgment in determining the gravity of the violation. (Tr. 231-32, 278).

AD Prebish testified that the gravity-based penalty was reduced by 60% for size based on of the number of employees Respondent had at the time of the inspection. (Tr. 278). According to OSHA’s Field Operations Manual (FOM) (Directive CPL 02-00-163), Chapter 6, VI.B., at 6-14, the maximum size reduction allowed for serious willful citations for employers with 11-20 employees was 60%.66 (Tr. 266-67). At the time of OSHA’s 2018 inspection, Respondent had about ten to fourteen employees. (Tr. 51, 231, 235, 364). AD Prebish further testified that no reductions were given for good faith in any of the citation items issued in this case because Respondent was issued several willful citations and its safety program was severely lacking. (Tr. 267, 278; Ex. 8, at 7-8). See OSHA FOM Chapter 6, III.B.3.a., at 6-8. AD Prebish also testified that Respondent received no penalty adjustment for history because it had not been inspected by OSHA in the five years prior to the issuance of the citations in this case. (Tr. 267, 278; Sec’y Reply Br., at 3). See OSHA FOM Chapter 6, III.B.2.c., at 6-8.

OSHA made appropriate and supported determinations of all of the required factors. (Tr. 279). The Court has considered all of the required factors and affirms Citation 1, Item 1, as a willful, repeat and serious violation and the proposed adjusted gravity-based penalty of $51,734.

29 C.F.R. § 1910.1200(e)(1) requires that employers develop, implement and maintain a written hazard communication program which describes how the criteria specified in § 1910.1200(f), (g) and (h) will be met. The cited standard applies because employees used and were exposed to hazardous chemicals and materials at the workplace, including flammable materials, carcinogens, and ear, nose and throat irritants from propane, lubricant and wood dust. (Tr. 233-34, 237-39, 402-03, 456-57, 478; Exs. 24-27, Ex. 38, at 55). The safety data sheet for the TC Bed Lube67 used at the workplace as lubricant for machinery indicates that it “[m]ay be fatal if swallowed or enters airways” and is a combustible liquid. (Exs. 24-25, at 1). The safety data sheet for wood dust indicates that it is a carcinogen and may “cause nasopharyngeal cancer and/or cancer of the nasal cavities and paranasal sinuses by inhalation.” (Ex. 26, at 1). The safety data sheet for the Airgas USA, LLC propane used at the workplace indicates that it is extremely flammable and can cause frostbite. (Ex. 27, at 1).

Respondent failed to meet the requirements of § 1910.1200(e)(1) because it had no written hazard communication program for the workplace on January 11, 2018. (Tr. 233-35, 351, 401; Ex. 8, at 7-8, Ex. 20, at 8, Ex. 28, at 2, ¶¶ 6-8, Ex. 38, at 54-55, 58). In its Post Trial Brief, Respondent admitted that “Timberline’s actions violated the regulation.” (Resp’t Post Trial Br., at 19, ¶ 56). All ten to fourteen employees were exposed to the violative condition that could lead to death or serious physical harm if: a) the lubricant was swallowed or caught fire, b) wood dust were inhaled and caused cancer, or c) propane exploded or caused frostbite. These employees were also exposed to moderate irritation of ears, nose, throat and respiratory tract. The Court finds that the evidence shows that there is a substantial probability that death or serious physical harm could result from exposure to the violative condition. (Tr. 235, 239-41; Exs. 25-27). (Sec’y Post Hrg. Br., at 43-44).

29 C.F.R. § 1910.1200(g)(1) requires that employers have a safety data sheet in the workplace for every hazardous chemical which they use. The cited standard applies because employees used and were exposed to hazardous chemicals and materials at the workplace including propane, lubricant and wood/wood dust. (Tr. 233-34, 237-39, 402-03, 456-57, 478; Exs. 24-27, Ex. 38, at 55). Respondent failed to comply with § 1910.1200(g)(1). Respondent did not have any safety data sheets at the workplace on January 11, 2018. (Tr. 236-37, 351-352, 356; Ex. 28, at 2, ¶ 8, Ex. 38, at 56-58). As discussed above, all ten to fourteen employees were exposed to the violative condition that could lead to death or serious physical harm if: a) the lubricant was swallowed or caught fire, b) wood dust were inhaled and caused cancer, or c) propane exploded or caused frostbite. These employees were also exposed to moderate irritation of ears, nose, throat and respiratory tract. The Court finds that the evidence shows that there is a substantial probability that death or serious physical harm could result from exposure to the violative condition. (Tr. 235, 239-41; Exs. 25-27). (Sec’y Post Hrg. Br., at 44).