Judge Dismissed OSHA Citation in Product Unloading Accident for Insufficient Evidence

Summary

OSHA 30/30 with Manesh Rath
Episode: Judge Dismissed OSHA Citation in Product Unloading Accident for Insufficient Evidence
Date: May 22, 2026
Host: Manesh Rath | Guest: Ben Idzik | Keller and Heckman LLP

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Episode Overview

This episode examines the recent administrative law judge decision in the case of Secretary vs. Americold Logistics, involving a tragic workplace accident at Americold’s LaPorte, Texas facility. Two workers were severely injured during the unloading of a freezer rail car—one was paralyzed, and another was knocked unconscious by falling pallets. OSHA cited Americold under the "general duty clause"; Americold contested the citation, and the judge ultimately dismissed it due to insufficient evidence. The episode explores the incident, OSHA’s arguments, Americold’s defense, the judge’s findings, and key takeaways for employers.

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Key Discussion Points & Insights

1. Background and Case Facts (00:00–09:00)

• Location and Incident:
  The accident occurred in 2023 at a cold storage warehouse in La Porte, Texas operated by Americold. Two workers were unloading frozen chicken feet from a rail car when a pallet fell, causing serious injuries. Americold self-reported the incident to OSHA.
  (00:00–02:16)

• Facility and Operations:

  • Americold functions as a central node in the cold supply chain, receiving and shipping temperature-controlled products arriving by truck or rail.
  • Loading configurations are unpredictable and not always known until the railcar arrives.
  • Safety assessment and communication precede each unloading operation, involving supervisors and multiple safety briefings (food safety, worker safety, logistics).
  • Unloading practices include two-person rail car door opening and mandatory hazard assessment.
    (02:37–07:58)

• Unloading Process:

  • Forklifts are used when safe; otherwise, hand unloading with safety cages is used.
  • Shrink-wrapped pallets and dunnage (airbag cushions) are common, but dunnage configuration and integrity often depend on the shipper.
    (07:58–09:12)

2. The Incident & OSHA Citation (09:12–13:17)

• Incident Description:

  • Employees were unloading shrink-wrapped, palletized boxes when boxes tumbled and caused catastrophic injuries.
  • Pallet weights could exceed 1,600–2,400 pounds, creating significant hazards if shifted or destabilized.
  • Americold conducted an immediate, detailed incident investigation and properly reported the incident as required by OSHA.
    (09:12–12:57)

• OSHA's Citation:

  • OSHA issued a citation under the general duty clause for exposing workers to “struck-by hazards” due to proximity to leaning boxes.
  • The citation alleged inadequate protection and lack of specific procedures or guidance for manual unloading with potentially unstable product.
    (12:57–15:00)

3. OSHA's Arguments and Burden of Proof (13:17–15:00)

• OSHA asserted:
  • Americold’s policies were too generic for hazard situations.
  • No clear guidance on when or how to use safety cages.
  • Alleged lack of specific devices or processes for dealing with unstable/leaning product.
  • OSHA compliance officer suggested the use of an unspecified "restraining device," but could not identify a concrete solution.
    (13:17–16:00)

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Notable Quote:

"The compliance officer said that there should have been some kind of device to restrain the product from falling over… but he didn’t identify any such device."
— Manesh Rath (15:00)

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4. Americold’s Defense (16:22–19:49)

• Key Defense Points:

  • Detailed standard operating procedures and routine hazard assessments demonstrated.
  • Employees well-trained, empowered, and instructed to stop work and notify supervisors if unsafe conditions were detected.
  • The actual hazard (leaning pallets) was not present at the time of the incident, counter to OSHA’s assumption.
  • Evidence from five credible witnesses (vs. OSHA’s single compliance officer) highlighted adherence to established safety practices.

• Clarification of Complaints:

  • Employee complaints referred to the increased manual work due to safe-handling requirements, not to safety concerns per se.
    (19:49–20:15)

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Notable Quote:

"Americold can theoretically prevail simply by pointing out the elements that are necessary to prove a violation that OSHA has failed to establish here."
— Manesh Rath (16:22)

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5. The Judge’s Decision and Reasoning (20:15–27:59)

• Judge acknowledged:

  • The possibility of a struck-by hazard exists in such operations.
  • However, OSHA failed to specify a feasible means of abatement (the critical fourth element for a general duty clause violation).
  • Suggestions for abatement were vague, outcome-oriented, and often outside the employer’s control (e.g., type of dunnage used or product configuration during transit, which is under the shipper's purview, not Americold's).
  • Americold’s program allowed workers to stop work upon identifying hazards—a fact supported by testimony and documentation.

• Judge found:

  • OSHA's proposed abatement measures were not concrete or feasible.
  • The device proposed as abatement was undefined, making the OSHA’s order vague and unenforceable.
  • Employer is only responsible for controlling hazards within its control—not hazards created by third parties (like shippers) before product arrives.

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Memorable Moment:

"[The compliance officer] merely said, ‘keep the product from tilting,’ which is the outcome to be abated, not the abatement. The judge caught that and pounced on it and said, that is not fair to employers."
— Manesh Rath (26:34)

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6. Practical Takeaways for Employers (27:59–31:46)

• Regular Hazard Assessments:
  • Conducted at every shift and upon each shipment’s arrival; helped Americold convincingly show diligence.
• Comprehensive Training & Monitoring:
  • Extensive onboarding and continuous supervision of employees are vital.
• Documentation:
  • Keep thorough records of employee complaints, clarifying whether concerns relate to safety versus routine work grievances.
• Empowering Employees:
  • Explicitly instruct and document employees’ right—and obligation—to stop work if unsafe conditions arise.
• Evaluating Citations:
  • When contesting OSHA citations, scrutinize the feasibility and specificity of OSHA’s proposed abatement measures.
    (27:59–31:46)

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Notable Quotes:

"It's important when you record your employees' complaints to incorporate sufficient detail into what the nature of the complaint was so that you can establish later on that it was or was not a complaint related to hazardous conditions."
— Manesh Rath (29:05)

"Evaluate defenses based upon the full spectrum of what OSHA needs to prove for a citation. Because sometimes OSHA can get it wrong."
— Ben Idzik (31:25)

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Timestamps for Important Segments

• Case Introduction & Facts: 00:00–09:00
• Incident & OSHA Involvement: 09:12–13:17
• OSHA's Arguments: 13:17–16:00
• Americold’s Defense: 16:22–19:49
• Judge’s Reasoning & Decision: 20:15–27:59
• Practical Employer Takeaways: 27:59–31:46

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Key Takeaways

• For a general duty clause citation to stand, OSHA must specify concrete, feasible abatement measures; outcome-based or vague proposals are insufficient.
• Employers must maintain robust, well-communicated, and consistently documented safety procedures, hazard assessments, and empower employees to stop unsafe work.
• Diligent training, monitoring, and record-keeping can be decisive in legal challenges.
• Not all complaints are safety complaints; clear documentation of their nature is essential.
• Employers are not liable for hazards created outside their control.
• Specificity—in both compliance and abatement—is crucial in OSHA proceedings.

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The episode underscores the importance of detailed safety programs, thorough documentation, and the limits of employer responsibility in complex supply chains.

Transcript

[A]

In 2023 in LaPorte, Texas, two workers working at a cold storage facility were unloading frozen food from a freezer rail car. One of the pallets that they were unloading fell. One worker was knocked out. The other worker was paralyzed by that accident. The employer, americold, self reported to OSHA the accident, and OSHA conducted an investigation and issued a citation under the general duty clause. In today's edition of the OSHA 3030, we're going to discuss the administrative law judge's decision and its significance to the employer community. I'm Monish Wrath, and this is the OSHA 3030. Well, welcome everyone to the May 2026 edition of the OSHA 3030. As I said, I'm Manish Rath, and I'm an attorney at the law firm Keller and Heckman here in Washington, D.C. i'm very fortunate because I'm joined today by my good friend and colleague, Ben Idzik. Ben, welcome to the OSHA 3030.

[B]

Thank you, Manish. Always a pleasure to be on.

[A]

Well, Ben, it's our pleasure to have you here. And I think we've got a really important case. This is the case of Secretary vs. Amerikold Logistics. Why don't we talk about what we're going to talk about today?

[B]

Yeah, let's do it. So we'll begin with the facts of the case. We'll discuss the background, give you a sense of mericold, what they do, the physical facility that this incident took place. We'll also discuss how the process of unloading the boxes that you mentioned in your intro generally takes place, as I think it's important for the setup of this case. And then we'll discuss the incident that ultimately took place in this case.

[A]

Right. And as we said, OSHA issued a citation alleging a violation of the general duty clause. We'll talk about the elements of what OSHA has to establish, in particular when citing an employer under the general duty clause, as opposed to when they issue citations under a standard. And then we'll talk about what osha's arguments were in prosecuting that citation.

[B]

And then in response, we'll figure out what America's defenses were of how they argued against what OSHA put forth in the citation. And we will then discuss what the judge thought about the arguments that were made by both sides.

[A]

Finally, we'll wrap up, as we always do, with what I think is the most important part of our program, the practical takeaway items for you in the OSHA 3030 community. We're going to talk about what employers should do in light of what we've learned from the americold logistics case. So with that, let's get cracking. The facts of the americold logistics case are really important to how the judge came down. So why don't we spend a little bit of time on that first?

[B]

Yeah, yeah, let's do it. So like you mentioned, Americold, they run cold storage warehouses, one of which is located in La Porte, Texas. Now, these warehouses, what they do is they receive, store and then ship to the folks at the end of the product supply chain, products that come into the facilities. So they typically come in either by rail car or by truck.

[A]

Right. They're essentially a middleman in a very complex supply chain. They receive frozen product from manufacturers or processors and they send it on to distributors. But in the between, they are unloading it from rails or trucks, storing it, and then shipping it and to the distributor at the next step in the supply chain. And even by the judge's account, this is a very complex supply chain that they participate in as a critical link. And Ameri Cold in particular is a very large and sophisticated participant in that sector.

[B]

Yeah, absolutely. And like you mentioned, Manish, the incident that took place in this case happened on a rail car. So just to paint a picture of how these rail cars look, the products that are placed inside are either placed in boxes that are stacked from the floor up or they're placed in pallets that are shrink wrapped, and the pallets contain boxes that are placed into the rail cars.

[A]

Critically, nobody at amircold knows when a railcar comes in on each and every rail car, which of the two methods the shipper has used. Sometimes they have enough advance notice as to how the product was stacked. Other times, the folks at Americold only learn while the rail car is on its way or when they first. When it first arrives at Americold site. And so this is a really critical point because the ability to prepare for a real car by a specific method of loading is something that they have to do in real time and not something that they can prepare in advance for in each and every case.

[B]

Right. The first step in that process is a assessment that takes place of the cars to be unloaded. So when the cars come in, Americold employees will go around and determine what exactly is being stored in these cars and how to go about loaning them.

[A]

That's right. And that's an involved process, part of which involves attention to food safety, part of it involves attention to worker safety. As well, the logistics of how this task is going to be performed. The first thing they do is they evaluate the temperature in the car to make sure that the product has maintained its frozen state. And if it hasn't, then they know to return the product to the shipper. In addition, they're assessing how the product was stored, whether it was palletized and shrink wrapped or whether it was stacked on the floor and whether or not the stacks are in safe condition, whether they are still stacked and not shifted. And that assessment happens when the rail car arrives by a supervisor. The next step is a series of meetings to transmit information to the workers on those at least those three features. The food safety, the logistics of how the tasks should be performed and then how the task should be performed safely, what are the hazards that have been observed and how the tasks should be performed in order to work around safely work around those hazards. So there's three such meetings, right?

[B]

The first meeting is a meeting between pre shift between the supervisors that are supervising the particular shift. Then there's also a general tailgate meeting for the whole second shift. And there's also a supervisor led meeting between the rail crew itself where the supervisor discusses what to expect and how to handle each unloading operation and the rail cars that are there for unloading

[A]

and a reminder safety operating procedures for rail what they've observed for that particular car. So that is I think then intensive communication of safety issues. That is a part of the ongoing back and forth between the team and supervisors and supervisors to the team of what hazards are being spotted and what safety practices to employ.

[B]

And I think you mentioned this, Manish. What's important to note here is that this is a sophisticated process. The supervisors, they go through not just what is going to be expected to be unloaded, but also they go through standard operating procedures and they stress and they highlight to workers what the hazards are to be expected from the loading process. And I think that's important as we see what the judge found in this decision.

[A]

So the next step is that the rail car, this all takes place, by the way, only with the second shift crew. So the second shift, after these meetings, they begin their work. It starts by opening the rail car doors. The safe practice at americoll that's employed is to do this as a two person operation that is obviously more expensive and more labor intensive, but it is safer. And americold uses a two person process for opening the rail car doors so that they could be moved in a manner where the worker is out of the way of any product. That might fall out of the opening doors as opposed to one person opening the doors and being right in the pathway of any falling product. So then a forklift operator moves by forklift a dock plate which bridges the loading dock to the rail car. It's on that dock plate that all product will move out of the rail car and safely onto to the dock. And I think that that step takes place while the unloading staff is waiting so that it could be done and then they begin their unloading.

[B]

Right. So once those two elements are in place, then a supervisor comes around with the carb opened and exposed and conducts an assessment of the state of the load that's in there. And the point here is to determine whether any shifting took place during transit to the point that it would be hazardous during the unloading process.

[A]

Right. And thereby whether the unloading plan that they had created and communicated would need to be adjusted.

[B]

Right. Because typically if the boxes that if the car just contained boxes or floor stacks, each box would have to be manually moved by the workers. But if they're palletized and you can get a forklift in there to make the process easier. So there was, like you mentioned, an adjustment that takes place depending on the load looks.

[A]

So this is the typical process. I should also point out, Ben, as you know, the workers underwent significant training before they they're ready for shift to their orientation training is multi hours. Then they are assigned to a senior worker to shadow them to see how to do the job safely and to spot hazards. And then there are constant walkthroughs by supervisors to monitor specifically for the purpose of monitoring whether the employee is doing his work as trained. So this is the standard procedure. Then In March of 2023, this incident happens.

[B]

Right. So the incident took place while the folks were unloading a box of or a car that was filled with boxes of frozen chicken feet. These boxes in this particular case were palletized and there were airbags that were placed in between the pallets by the shipper that provided a cushion that this is referred to as dunnage is a term of art in the industry. And the point is to prevent the palletized boxes from shifting to the point of them being leaned during transit. So the first, like we discussed, the car was inspected and it was approved by the supervisor for unloading to begin as planned. In this particular incident.

[A]

Right. Two employees, one by the initials Mr. And the other who's unnamed or redacted, they were in the process of unloading a particular pallet. I should point out these pallets if they are, if the product comes in palletized, then the pallets, if they can be safely unloaded by forklift, are done by forklift. And if a palletized product has for any reason the load inside the pallet has shifted within the shrink wrapped pallet, then there's a safe process by which boxes are unloaded one at a time from the top down. And the shrink wrap is only released from the top enough to remove a box and then remove another one. And they use a cage on the forklift for workers to operate from until they work their way all the way down. In the event that they believe that any further unwrapping of the shrink wrap, cutting of the shrink wrap would result in a release of the load, then they use a controlled tumble down of the boxes inside that pallet so that workers are safely out of the path of exit of those boxes from the shrink wrapped pallet. This is important to note. Boxes coming in at commercial sizing might have been as much as £40 per box and there might have been 20 to 40 boxes per pallet. So when these boxes tumbled down on Mr. And his co worker, the tragedy that ensued, which is heartbreaking, is understandable when understanding the weight, the potential weight of these pallets could be as much as 800 or even £1,600 per pallet, maybe twice that, even, maybe £2,400 or more. That is theoretically possible without knowing the particulars of this case. So when two boxes are stacked up and let us say each of them weighs, two pallets are stacked up and each of them weighs maybe 1600 pounds. Now you have, you don't double that, but if they're toppling, what you have really are two 16 pound forces coming at different vectors which could create a shearing kind of energy. And each, each one of which is at 1600 pounds. And that could conceivably, I think very easily easy to conceive, could result in the paralysis injury that we saw in this case. So just incredibly unfortunate accident that, that happened on this day as they were unloading their boxes. Yeah. MERCOLD immediately performed a incident investigation.

[B]

Yeah, they sure did. They performed an incident investigation. They also reported Maharish, like you mention, the incident after Mr. Was hospitalized. And that prompted of course the OSHA to conduct an on site investigation.

[A]

Right. Recollect folks in the OSHA 3030 community that in addition to recording in the form 300 injury and illness record keeping log any incidents, an employer must also self report to OSHA immediately, promptly, any instance of a Hospitalization. This also includes inoculations or amputations of any degree. And those have to be reported within 24 hours and it has to be reported within eight hours if there's a fatality so often overlooked by employers or unknown to employers. Want to make sure you know about that. Americold did the right thing. Self reported. OSHA comes out and conducts an investigation.

[B]

Right. And they, like you mentioned, they issued a citation under the general duty clause. And the citation specified that the employees were employees who were manually unloaded boxes of frozen poultry adjacent to pallets with leaning boxes were exposed to struck by hazard. So that was the basis of the citation that was, that was issued.

[A]

Right. So OSHA comes out, issues this general duty clause violation. America contested the citation. And now it is a, it is a case before the Occupational Safety and Health Review Commission, independent adjudicatory agency. And now OSHA has to establish the prima facie elements of its general duty clause alleged violation. Those being that they have to establish that there was a condition that exposed workers to a hazard. OSHA has to establish that the hazard was recognized by the employer or generally recognizable by the industry or through reasonable due diligence, could have been spotted. They have to establish that the hazard is of a type that could have caused or was likely to have caused death or serious harm and that there was a feasible means for abatement of the hazard. And that last element is going to be a centerpiece of the judge's inquiry here.

[B]

Yeah, absolutely. So when we look at osha's arguments in this case, what OSHA said in its citation and in subsequent arguments before the ALJ is that americold exposed its employees to struck by hazards by requiring them to work near pallets with leaning boxes. That satisfied the exposure element of the, of the citation. And they, they provided examples of how Americold was not providing specific protection to employees who were working in this situation. They said that the policy that americold had in place was too general. They just required folks to notify their supervisors. They said that the policy did not provide guidance on how to unload by hand. They said that it was unclear whether and when to use a cage. So essentially Americold was relying too heavily on vague and unhelpful prospects that did not provide actual guidance to employees.

[A]

That was OSHA's argument. And when asked what Americold could have done differently in its process, in its standard operating procedures for handling product safely, the compliance officer said, well, they could have had a better procedure. They could have had more clarity with what the employer should have told the employee to do in situations where product had fallen over or tilted was leaning. And finally, they said that the compliance officer said that there should have been some kind of device to restrain the product from falling over. Of course, once you remove that device for the purpose of unloading the product, you still have the same problem that you have to deal with shifted or leaning product. So that stored energy of leaning the product is, is not solved permanently with restraints or devices. But more to the point, the compliance officer didn't identify any such device. He simply said that they should have had some kind of device to hold the product from shifting.

[B]

Yeah, and that's certainly something that the ALJ and then americold and its defensive brought up. There was also a point that I think OSHA raised that was interesting. And they relied on employer testimony that stated that americold employees would have to work frequently around shifted lows. And there were complaints about this. But that's something that I think we'll see how it unfolds with americold's point of view.

[A]

Right. So americold has an opportunity to present its argument and recollect. It doesn't have to present evidence exonerating itself of the allegation of a violation. The agency is responsible for carrying the ultimate burden to establish its case as the plaintiff or the complainant in this case. And so americold can theoretically prevail simply by pointing out the elements that are necessary to prove a violation that OSHA has failed to establish here. Americold established its standard operating procedure, the process that we described for how to handle products safely. And it pointed out that the employees were trained how to do this safely and that they were monitored on how to do it safely. And in this particular case, everyone was doing their work according to their training. More to the point, the employees were empowered if they believed that a load was unsafe or that it was safe when it arrived and it shifted or for any reason circumstances had changed, that they were empowered to notify a supervisor. They were instructed, actually not just empowered, but instructed to notify a supervisor and to have the supervisor conduct an inspection. That is very different from what OSHA had alleged, which was a complaint that employees were given vague instructions and were told to keep working until directly ordered to stop working if they believe the circumstances are unsafe. And that was not a finding that the judge arrived at, despite OSHA having made that allegation. We can talk about the judge's finding in a moment, but I think it's important to understand the essence of America holds arguments were founded on very detailed explanations of its safe operating procedure that we've already gone over and its training that we've already gone over and what the employee, employer or employee supervisor communication systems were for a typical day of unloading.

[B]

And I think it's interesting and important to bring up to America's argument is that what America was saying is that there was actually no hazard that that employees face in this particular situation. The boxes were not leaning during the unloading process. That was confirmed by the initial, particularly

[A]

the two pallets that fell did not have leaning pallets.

[B]

Right. And that was confirmed. And the boxes that even boxes that did shift during transit did not necessarily pose a hazard to employees. And that goes to your point, Manish, with respect to how important the process that America had employed place for determining whether or not a shifted box was hazardous. They did think about that.

[A]

Right. We're talking to repeat the the boxes may have shifted within the shrink wrapped pallet but were not leaning and were assessed to be not hazardous. Which is very distinct from the allegation that OSHA raised that the pallets were leaning and they couldn't provide any evidence of that. Indeed, I think what had happened is the compliance officer had heard that some of the boxes had shift and merely equated that with leaning palace, which is not always the same. So in this particular case, Americole did a really thorough job of presenting evidence through five witnesses. If I recollect, OSHA only presented one witness and that was the compliance safety officer and five witnesses on amerikold's part in a two day trial in Houston, Texas. And so their evidence was, I think, not only more credible but had a greater clarity to it.

[B]

And I think the point that we discussed on the previous slide with respect to the employee complaints about working with leaning loads is that the full context of the complaint there was that the complaints weren't about the employees who were complaining, were not concerned about the safety aspect of it. They were concerned about the fact that when products were determined to be hazardous, they would have to be unloaded manually, which would take more time during the process.

[A]

Okay, so let's talk about the administrative law judge's decisions as Judge. Patrick I've known him for many, many years. He's very thoughtful, he's very detail oriented and he sees, I think, the big picture very clearly. I think he did a good job in understanding this case and going through a two day trial and sorting through the evidence and finding its essence. So what the judge found when evaluating the Two arguments was that it was maybe arguably clear that there was a potential for a hazard of pallets falling over, and that this was evidenced by the fact that in this case, indeed a pallet fell over. So when you look at all of the elements, the judge said there's no need to further inquire and doesn't really believe that Amir Kol was contesting that point, that the potential for falling pallets is indeed a hazard and that the hazard has the capacity for being potentially one that could cause severe injury or fatality. What the judge said was really more at issue was the idea that there was a feasible means of abatement and that OSHA had clearly articulated what abatement would be satisfactory to eliminate the hazard or mitigate the hazard, and whether or not that was indeed feasible. I think he also was concerned that when the compliance officer was assessing the evidence for what the deficiency he was alleging by Americold was, that he was in fact demonstrating evidence of a satisfactory compliance program. Let me just give you one example. One of the complaints that the compliance officer alleged was that employees, if they had identified a hazard in the case of leaning product, then they were supposed to notify a supervisor, and the OSHA compliance officer concluded from that that the employees had to keep working in order until the supervisor inspected and issued a stop work order. The judge, by contrast, looked at the transcript and found testimonial evidence was clear that the employee did have the right to stop working at the minute or the moment that the worker had identified any hazard or hazardous task or operation. And so the judge noted that it seemed contradictory on the part of the compliance officer that on one hand, the compliance officer was complaining that the instructions to the employees were unclear as to how to handle unsafe product, and on the other had given that the employer had given employees clear instructions that they were required or expected to stop work the moment they spotted a hazard, which the employee, the administrative law judge, to be sufficiently clear, plenty clear, those are the kinds of testimonial evidence that the judge found that the compliance officer had attempted to submit into evidence that in some cases were evidence of the employer doing the right thing, not of an alleged violation.

[B]

Right now, on the abatement point, the judge cited to sort of the standard that goes to an effective abatement program. And an abatement is something that it has to be shown to reduce the hazard posed to workers. The abatement measures can't only be shown to might be able to be effective, or they can't be used to describe a desired result. And in this particular case, he found that one, the proposed abatements by OSHA were not sufficiently described. So, like we discussed, like what the compliance officer and OSHA argued that a protective device should have been used, but they didn't specify what protective device should have been used. And they describe situations where. Well, essentially saying that the pallet shouldn't have shifted during transit, shouldn't have posed a hazard workers. But those are not abatement measures that are sufficient for the purposes of approving a citation.

[A]

And also, the judge noted that that particular example is one that's not in the employer's control. The product comes under the employer's control when it arrives at the loading dock or unloading dock, and that the shipper is the one who stores the product in the rail car, and that anything can happen while it's in transit, and that the employer, americold, doesn't even know whether the product was stacked on the floor, which would allow the product to be stacked wall to wall or on pallets until, in some cases, until it arrives. And so this was entirely out of the employer's control. Yeah.

[B]

I think a. A great example of that also is the reference to the use of dunnage. The investigation found here is that what Amerikold believed to have contributed to the pallet tipping over and falling was that the dunnage, which were airbags used between the pallets, deflated during transit and then fell over. So when OSHA came and said, well, you should have used more dunnage in this situation, AmericanKold and the ALJ pointed out that Dunnage was not placed there by Americold. It was placed there by the initial shipper.

[A]

Right. And. And the type of dunnage used is out of America's control. Also, there's many types of dungeons that can be used, anything from very sturdy wood planks or crating to pine structures. Or it could be cardboard, structural cardboard. Or it could be what was used in this case, which is inflatable bags that. That in this case, Americole believed may have collapsed. Those inflatable bags that were used to fill the space to prevent shifting may have collapsed between one pallet and another. And the pallet behind the one that fell may have been leaning invisible to their inspection until that first row of pallets was removed. And by then it was too late. So their process was sufficient in most cases and in other cases was out of their control. The other elements of the. Of the circumstances out of their control. The other things that the compliance officer mentioned were things that Amir Cold was Indeed, doing like he said, they should have been training employees. They should have been monitoring for safety. They should have empowered employees to notify the supervisor of any hazardous conditions. And americolt had already done so and had presented evidence that had already done so. Finally, the last category of abatements that the compliance officer proposed was one that was just ambiguous. Ambiguous. He didn't have any specificity to it. He said, well, I think that there should have been some kind of device to restrain the product from leaning or tilting over. When asked what kind of device he had in mind, the compliance officer testified, well, some kind of device that would restrain the product. The judge found this to be two things. First of all, vague and lacking the specificity to qualify as an abatement measure. And remember, that's the fourth and critical element. And also in lacking specificity, it made the proposal incapable of being assessed for feasibility. But also, as you said already, Ben, this was a outcome derived abatement order. In other words, it would have been the best way to keep the product from tilting is to create a device that keeps the product from tilting. And that is outcome oriented is not a specific measure, it's not a specific step procedure device that would. Could be implemented in order to keep the. The product from tilting. He merely said, keep the product from tilting, which is the outcome to be abated, not the abatement. And the judge caught that and pounced on it and said, that is not fair to employers. You can't do that in your abatement order in an alleged violation under the general duty clause. The general duty clause expects something more concrete in order to establish that indeed the general duty clause has been violated. All right, so that's the administrative law judge's decision. Ben, why don't we talk about lessons learned, what employers can take away from today's episode of the OSHA 3030.

[B]

Yeah, I think there's a good, there's a good bit here we can take away. Starting off with making sure that you, as the employer, conduct regular hazard assessments at your facility to determine what are the points.

[A]

Something that Americole did at the beginning of every shift and at the arrival of every rail car. And that really helped them out. And I think employers ought to take a page out of the playbook of americold and conduct regular hazard assessments, task specific, if indeed every task is a little bit unique. Training. They did plenty of training at the beginning of an employee's onboarding orientation and throughout the employee's career. And there was constant monitoring. Employees were well supervised and Monitored for making sure they did their work safely.

[B]

Also, another good point is making sure that you record employee complaints. We saw it came up in this case. OSHA used an employee complaint.

[A]

Recollect that the employee complaint was. He testified at the two day trial. Yeah, I complained that when product had tilted, we had to do this by hand. We had to cut the pallet, shrink wrap and remove boxes by hand. And when asked, well, what was the complaint about? What were you complaining about? About that. He said, well, that's just hard work. It's a lot more work and I would prefer that we do work that can be done by forklift or yeah, one pallet at a time rather than one box at a time. And so Merrick hold pointed out to the judge, judge, this wasn't a safety complaint. This wasn't a complaint about a hazardous condition. This was a complaint, a regular workday complaint, like why can't we do this an easier way? And for OSHA to have used that against the employer as if employees had made safety complaints and Amir Cole had turned a deaf ear. The judge rejected that interpretation. And so that's not what the complaint was about. So it's important when you record your employees complaints to incorporate sufficient detail into what the nature of the complaint was so that you can establish later on that it was or was not a complaint. Related hazardous conditions, alleged hazard conditions, safety complaints, et cetera, which an employee recollect has a right to do unretaliated against under section 11C of the, of the act of the Occupational Safety and Health Act. So those complaints in this category for AmericOld did not qualify as 11C complaints.

[B]

Another point is, and I think Manish, you touched on this earlier, is make sure that supervisors are actively monitoring for violation and documenting safety violations. It's important. Even if you have a program in place, the program is written. Wonderful. It's good to have that.

[A]

I think one of the things Americol did really well is that they prepared a very detailed explanation to the judge of how they do things the right way. And the judge walked away with a very clear understanding at the end of a two day trial compared to a lot of cases that are presented before administrative law judges of what was going on on an everyday basis and in that particular moment.

[B]

I think it's also important to create a record of when employees are empowered to stop working because of a hazard concern that they, that that is in fact documented. And being able to show that potentially in an OSHA contest.

[A]

Yeah, I think that was great that Americold was able to present that evidence. And every employer should have communicated that to their employees in writing, in training. And this is a debut on the OSHA 3030 after I think we've been doing this 13 or more years. This is the first time that that bullet item has shown up in what employers should do. So paid note to that I think that employ employers ought to communicate hey, if you see something unsafe, stop work, get out of the hazardous situation, report it, cordon off the area until it gets abated. And that if you've recorded that you've empowered employees to do that, it would inure to your benefit if you're presenting the kind of defense that AmeriCorp had to present here.

[B]

And eventually, ultimately I think we can conclude with this is that evaluate defenses based upon the full spectrum of what OSHA needs to prove for a citation. So in this case we see that the case really fell because OSHA was not able to to establish the proposed abatement element. So make sure that the abatements that OSHA puts forth are actually feasible, actually implementable. Because sometimes OSHA can get it wrong.

[A]

That's right. And sometimes the employer can get it right. And if the employer has gotten it right, they should defy the agency to come up with a better plan, a more specific and better and more effective and feasible means of abatement that the employer was not utilizing. And if OSHA is challenged in the task of doing so, then it may may fail to prove its alleged violation, particularly in general duty clause cases. Well, that's today's OSHA 3030. Then we will be back. But before then we've got a couple of sister programs. For those of you whose organizations are responsible for compliance with the regulatory schema under TOSCA or Reach should know that our programs, the TOSCA 3030 and Reach 3030 are coming up soon. June 10th at 10:00am Eastern for the Reach 3030 and August 12th at Reach 1:00pm Eastern for the TOSCA 3030 incredibly valuable programs for really important statutory schema that apply to the chemical manufacturing industry. Now we'll be back on June 17th at 1:00pm Eastern, always on a Wednesday, always at 1:00pm Stay tuned for that program and when you get the email invitation for that program, please. As we've done for 13 years, we've put this program on, providing valuable information complimentary to you and all we ask, please send your email invitation onto at least three others, not only at your organization, but at other organizations, not only to safety and health professionals at those organizations. But also to the in house counsel, the attorneys responsible for OSHA compliance at your organization and at other organizations to spread the good word about this program so that we can be doing this hopefully for another 13 or 14 years. That's today's OSHA 3030. I want to thank all of you for attending. I want to thank the staff here at Keller and Heckman for helping put on another great program. Ben Idzik and myself are both very grateful to you all and we look forward to seeing you again next month.