United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                  1120 20th Street, N.W., Ninth Floor
                                        Washington, DC 20036-3457


SECRETARY OF LABOR,

Complainant,

v.
OSHRC Docket No. 16-1167
AEROSPACE TESTING ALLIANCE, 



Respondent.


BRIEFING NOTICE
      The Commission requests that the parties brief the following issues:
(1)	Whether the judge erred in finding that the hold-down piston guards do not 
comply with 29 C.F.R. § 1910.212(a)(1).
(2)	Whether the judge erred in finding that employee exposure to the hazard was 
established.  In addressing this issue, the parties are requested to discuss:
a.	Did the judge err in failing to address whether the Secretary established actual 
exposure?  See Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-
2148, 1995) (“Exposure to a violative condition may be established by 
showing actual exposure or that access to the hazard was reasonably 
predictable.”)  If so, did the presence of the injured employee’s hand under the 
hold-down piston establish actual exposure to the cited hazard?
b.	Even if actual exposure was shown, does the Secretary meet his burden of 
proof or is the Secretary required under the circumstances present here to 
prove that exposure was “reasonably predictable”?  See Rockwell 
International Corp., 9 BNA OSHC 1092, 1097-1098 (No. 12470, 1980) (“The 
mere fact that it was not impossible for an employee to insert his hands under 
the ram of a machine does not itself prove that the point of operations exposes 
him to injury.”).  If so, was reasonable predictability established?
(3)	Whether the judge erred in finding that Respondent had knowledge of the 
violative conditions.  In addressing this issue, the parties are requested to discuss



whether Respondent, with the exercise of reasonable diligence, could have known 
of the alleged violative conditions.
      All briefs are to be filed in accordance with Commission Rule 93.   The first brief is to be 
filed within 40 days of this notice.  A party that does not intend to file a brief must notify the 
Commission in writing setting forth the reason therefor within the applicable time for filing 
briefs, and shall serve a copy on all other parties.  The time for filing briefs (or similar notices of 
intent) of opposing parties shall commence on the date of service.

						BY DIRECTION OF THE COMMISSION



Dated:	November 20, 2017			/s/						
						John X. Cerveny
						Executive Secretary
  The Commission requests that all briefs include an alphabetical table of authorities with 
references to the pages on which they are cited, and that an asterisk be placed in the left-hand 
margin of the table to indicate those authorities on which the brief principally relies.  The 
Commission also requests that copies of cited authority, other than statutes, case law, law journal 
articles and legal treatises, be provided to the Commission and to the opposing party.  Parties 
should be cautioned that these materials will be considered only if appropriate.
 
 

 
 




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