United States of
America
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
1924
Building - Room 2R90, 100 Alabama Street, S.W.
Atlanta,
Georgia 30303-3104
|
Secretary of Labor, |
|
|
Complainant |
|
|
v. |
OSHRC
Docket No.: 17-0029 |
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Southern Hens,
Inc., |
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|
Respondent. |
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Appearances:
Jeremy K. Fisher, Esq., U.S.
Department of Labor, Office of the Solicitor, Atlanta,
Georgia
For the Secretary
Stephen J.
Carmody, Esq., Brunini, Grantham, Grower & Hewes, PLLC
For
the Respondent
BEFORE: Administrative Law Judge Heather A. Joys
AMENDED
DECISION AND ORDER
On August 4, 2016, an employee of
Southern Hens, Inc. (Southern Hens) sustained a severe laceration to her thumb when
it became caught in the drive mechanism of the machine she was cleaning. She lost a portion of her thumb as a
result. Following the incident, the
Jackson, Mississippi, Occupational Safety and Health Administration (OSHA) Area
Office conducted an inspection of the facility.
As a result of the inspection, the Secretary issued a three-item serious
citation. Items 1a and 1b, Citation 1,
allege violations of the lockout standard at 29 C.F.R. § 1910.147 for failure
to have clear written procedures, and failure to follow those procedures during
machine cleaning operations. Item 2,
Citation 1, alleges a violation of the machine guarding standard at 29 C.F.R. §
1910.212 for failure to guard an in-going nip point on a conveyor. The Secretary proposed a total penalty of
$19,134.00 for the violations.
Southern Hens contested the citations
bringing the matter before the Occupational Safety and Health Review Commission
pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651-678 (the Act). All three
alleged violations and the proposed penalty are at issue.
I held a hearing in this
matter on October 10, 2017, in Jackson, Mississippi. The parties filed post-hearing briefs on January
12, 2018.[1]
For the reasons discussed below Items 1a is
vacated; Items 1b and 2 are affirmed as issued.
A penalty of $ 12,000.00 is assessed.
JURISDITION
At the hearing, the parties stipulated
jurisdiction of this action is conferred upon the Commission pursuant to §
10(c) of the Act (Tr. 13-14). The
parties also stipulated at the hearing that at all times relevant to this
action, Southern Hens was an employer engaged in a business affecting
interstate commerce within the meaning of § 3(5) of the Act, (Tr. 13). Based on the stipulations and the facts
presented, I find Southern Hens is an employer covered under the Act and the
Commission has jurisdiction over this proceeding.
BACKGROUND
Southern Hens is a poultry processor
with a facility in Moselle, Mississippi.
At that facility, Southern Hens operates three plants with approximately
700 employees (Tr. 144). During the day,
employees process poultry for retail and commercial sale (Tr. 21). During the night shift (from 8:30 p.m. to
6:30 a.m.) employees perform sanitation work, including cleaning the machines
used in the poultry processing operations.
The citation in this matter involves
operations at Plant No. 3 only. Plant
No. 3 contains several large pieces of equipment used in the poultry processing
operations. At issue in this proceeding
are the Short Weight Tumbler, Freezer No. 2, and Chiller No. 2.
The
Accident
The accident occurred while an
employee was cleaning the Short Weight Tumbler (the Tumbler). The Tumbler is a large machine used to remove
water from processed chicken parts in order to get an accurate weight (Tr.
244-45). It does so by spinning the
chicken parts in a drum large enough for a person to climb into. [2] The Tumbler is in a room with no other
equipment (Tr. 48).
The injured employee’s regular
assignment was to clean the Tumbler. At
the time of her accident, she had been doing that job daily for approximately one
month (Tr. 18, 51). The injured employee
was assigned to clean the Tumbler by Greg Webb, the Sanitation Manager (Tr.
20-21; 245). She was trained by another
sanitation employee named Jessie who had previously done the job (Tr. 25). According to the injured employee, this
training involved an explanation and some demonstration. Although he told the injured employee to lock
out the machine before climbing into the drum and showed her where the locks
were located, Jessie did not demonstrate the lockout process (Tr. 49; 75-76). The injured employee was never given written lockout
procedures for the Tumbler (Tr. 49).[3]
The process of cleaning the Tumbler involved
hosing it down, followed by applying cleaning chemicals or foaming, and hand scrubbing,
inside and out (Tr. 25-27, 33-34). The
entire process took approximately 4 hours (Tr. 33). The process began with opening doors that
served as guards for the drive mechanism (Tr. 36-37, 41; 78).[4] The Tumbler was off, but not locked out at
this time (Tr. 78-79). After the doors
were opened, exposing the drive mechanism, the injured employee would turn on the
Tumbler and begin hosing it down (Tr. 78).
According to the injured employee, she was instructed by Jessie and Manager
Webb to keep the drum of the Tumbler spinning while hosing and foaming (Tr.
27-28; 78). She testified Jessie
instructed her to deenergize and lock out the Tumbler when the process required
her to climb inside the drum to scrub it (Tr. 25-26; 76). She testified this was the process she
followed (Tr. 84). She would then
reenergize the Tumbler after she had scrubbed the inside of the drum in order
to continue hosing it down (Tr. 85-86).
Cleaning the Tumbler included
scrubbing near the drive mechanism. The
injured employee testified the scrubbing process brought her hand within 7
inches of the drive mechanism (Tr. 46).
Hand scrubbing took approximately an hour and, except for scrubbing the
interior of the drum, was performed while the Tumbler was activated (Tr.
47).
Because the Tumbler was the only
equipment in the room, once the injured employee was trained, she worked alone
(Tr. 49). However, various employees,
including Manager Webb, passed through the area throughout the shift (Tr. 51-52;
77).
On August 4, 2016, the injured
employee reported to work and attended the usual daily staff meeting (Tr.
54). She then proceeded to begin the
process of cleaning the Tumbler (Tr. 55).
After foaming the Tumbler, the injured employee prepared to scrub
it. She climbed a ladder to reach the
upper part of the Tumbler and began scrubbing (Tr. 55). She had previously opened the doors exposing
the drive mechanism. As she scrubbed her
glove became caught in the drive mechanism pulling in her hand (Tr. 55). Once the drive mechanism released her hand,
the injured employee removed her glove to see her thumb partially amputated
(Tr. 56-57). She testified she panicked
and began running to find Manager Webb.
Manager Webb wrapped the hand and told the injured employee to wait for
Matt Lee, the Safety Coordinator (Tr. 56-57).
When Safety Coordinator Lee arrived[5], 30 minutes later, he took
the injured employee to the hospital for treatment (Tr. 211).
As a result of the accident, the
injured employee required two surgeries on her hand (Tr. 57). She permanently lost a portion of her
thumb. She returned to work in November,
2016, but could not perform the assigned work because of her medical restrictions
and was off work again until January, 2017 (Tr. 58). In January, 2017, upon her return, Southern
Hens issued a disciplinary notice to the injured employee indicating she had
failed to lock out the Tumbler “prior to cleaning.” (Exh. C-4; Tr. 59). The injured employee refused to sign the disciplinary
notice because she felt it was “not [her] fault.” (Tr. 61)
The
Inspection
Southern Hens notified the Jackson,
Mississippi, OSHA Area Office of the accident prompting that office to open an inspection
on August 10, 2016 (Tr. 107). Compliance
Safety and Health Officer (CSHO) David Young was assigned to and conducted the
inspection. CSHO Young’s inspection was limited
to Plant No. 3 (Tr. 108). His inspection
consisted of a review of company’s written policies and procedures, interviews
with management and production employees, including the injured employee, and a
walk around Plant No. 3. CSHO Young’s
inspection encompassed both poultry processing and sanitation operations (Tr.
125, 133-35).
During his walk around inspection,
CSHO Young observed two parallel production lines (Tr. 125). These two production lines contained
equipment for freezing processed chicken parts.
Employees were stationed on either side of the lines (Tr. 125). CSHO Young saw an employee working from a
catwalk elevated 15 -18 inches above the floor attempting to free product that
had become backed up after falling off the conveyor on Chiller No. 2 (Tr.
126-27). The employee had been using a metal rake-like tool to clear the area
but had resorted to using his hands (Tr. 126).
CSHO Young observed the employee’s hand came within inches of a pinch
point located under the conveyor (Tr. 127).[6] A similar conveyor was located next to the
cited conveyor. CSHO Young noted a plastic
guard covered the pinch point on the other conveyor (Tr. 128). CSHO Young spoke with the employee he had
observed using his hands to clear the product (Tr. 129). The employee told CSHO Young he had been
performing that job for three weeks. He
had been trained to use and provided a metal tool to clear the product, but
because the tool was heavy, he used his hands (Tr. 130).
CSHO Young observed employees
cleaning the equipment used in the freezing process as well (Tr. 134). He observed an employee cleaning Freezer No.
2 while it was running (Tr. 125).[7] He noted this process brought the employee in
proximity to a moving chain and sprocket (Tr. 135). When CSHO Young asked Craig Coberley,
Director of Operations, about his observation, Mr. Coberley told him the
employee hadn’t “broken the plane.” (Tr.
135)
Based upon his findings, CSHO Young
recommended three serious citation items be issued to Southern Hens. CSHO Young concluded Southern Hens’s lockout
procedures for the Tumbler and Freezer No. 2 did not comply with the
requirements of § 1910.147(c)(4)(i)(B) because the procedures did not explain
when the machines should be locked out (Tr. 120). He believed this was necessary because part
of the sanitation process was performed while the equipment was running (Tr.
119-20). CSHO Young recommended a
citation be issued for a violation of § 1910.147(d)(4)(i) for failure to lock
out the Tumbler during the scrubbing process (Tr. 124). He based his findings of a violation on
information he received from the injured employee (Tr. 122-23). He recommended these two violations be
grouped for penalty purposes. CSHO Young
recommended a separate serious citation be issued for a violation of §
1910.212(a)(1). He based this recommendation
on his observation of the employee using his hands to clear product on Chiller
No. 2 during production operations exposing the employee to a pinch point (Tr.
128-30). Southern Hens contested all
three citation items arguing its lockout procedures comply with the standard’s
requirements; the injured employee’s failure to lock out the Tumbler was the
result of unpreventable employee misconduct; and the Secretary failed to meet
his burden to establish a violation of § 1910.212(a)(1). In its brief, Southern Hens argued the
alleged violation of § 1910.212(a)(1) should be vacated because the standard is
unconstitutionally vague.
DISCUSSION
The
Secretary has the burden of establishing the employer violated the cited
standard. To prove a violation of an
OSHA standard, the Secretary must show by a preponderance of the evidence that
(1) the cited standard applies; (2) the employer failed to comply with the
terms of the cited standard; (3) employees had access to the violative
condition; and (4) the cited employer either knew or could have known with the
exercise of reasonable diligence of the violative condition. JPC
Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).
Item
1a, Citation 1: The Alleged Violation of
29 C.F.R. § 1910.147(c)(4)(ii)(B)
Section 1910.147(c) governs the requirements
of a lockout/tagout program. Section
1910.147(c)(4)(ii) specifies the requirements for the written procedures for
locking out equipment under that program.
The cited subpart, § 1910.147(c)(4)(ii)(B), states such procedures must
contain “[s]pecific procedural steps
for shutting down, isolating, blocking and securing machines or equipment to
control hazardous energy.”
In
Item 1a, Citation 1, the Secretary alleges Southern Hens was in violation of §
1910.147(c)(4)(ii)(B) for failure to have “clear and specific” procedures for
shutting down the Tumbler and Freezer No. 2.
The Secretary alleges Southern Hens procedures were inadequate because
they failed to specify when in the sanitation process the procedures were to be
implemented. Southern Hens contends the
standard does not require the information the Secretary alleges is lacking and,
even if it did, its procedures have that information.
Applicability of the Standard
Southern
Hens does not dispute the applicability of § 1910.147 to the sanitation process
for either the Tumbler or Freezer No. 2.
The requirements of § 1910.147 apply where employees are engaged in
“servicing and/or maintenance of machines and equipment.” 29 C.F.R. § 1910.147(a)(2)(i). Cleaning machines and equipment is included
in the standard’s definition of “servicing and/or maintenance” “where the
employee may be exposed to the unexpected
energization or startup of the equipment or release of hazardous
energy.” 29 C.F.R. § 1910.147(b). The procedures applicable to the Tumbler and Freezer
No. 2 identify multiple hazardous energy sources for the equipment (Exhs. C-8
and C-14). These energy sources could
cause unexpected energization or startup of the equipment, exposing employees
performing servicing or maintenance to hazards such as electrical shock or
being struck by moving machine parts (Exhs. C-8 and C-14). The standard applies to the cleaning
operations performed by Southern Hens’s sanitation employees.
Violation of the Terms of the
Standard
Section
1910.147(c)(4)(ii) requires an employer’s lockout procedures to “clearly and
specifically outline the scope, purpose, authorization, rules, and techniques
to be utilized for the control of hazardous energy…” In promulgating the standard, the Secretary
retained the word “specifically” to “emphasize the need to have a detailed
procedure, one which clearly and specifically outlines the steps to be
followed. Overgeneralization can result
in a document which has little or no utility to the employee who must follow
the procedure.” Control of Hazardous Energy Sources, 54 FR 36644-01 (September 1,
1989) at p. 36670. The Secretary also
emphasized the importance of having those procedures be in writing. Id. In interpreting the requirements of the
standard, the Commission has recognized the purpose of the written procedure is
“to guide an employee through the lockout process.” Drexel
Chemical Co., 17 BNA OSHC 1908, 1913 (No. 94-1460, 1997).
Item
1a, Citation 1, alleges a violation of § 1910.147(c)(4)(ii)(B) which requires
the employer’s written lockout procedures to contain “specific procedural steps
for shutting down, isolating, blocking and securing machines or equipment to
control hazardous energy.” Exhibits C-8
and C-14 contain Southern Hens’s written steps for shutting down and locking
out the Tumbler and Freezer No. 2, respectively. I find
no deficiency in these procedures. These
documents describe the sources of energy and provide the steps necessary to
shut down, isolate, lock out, and neutralize the equipment. Both explain the procedure for verifying
isolation of the energy sources. They
contain all the elements required under the cited standard and track the model
procedures contained in Appendix A to the standard. The procedures provide sufficient specificity
to “guide the employee through the lockout process.”
The
Secretary argues the procedures do not meet the requirements of the standard
because they fail to identify when in the sanitation process lockout is to
occur.[8] As evidence of this lack of clarity, the Secretary
points out employees did not implement lockout procedures before performing
cleaning operations and performed some of the cleaning operations while the
equipment was running. Southern Hens’s
procedures state only that the lockout procedures are to be implemented prior
to servicing or maintenance. This, the
Secretary contends, creates confusion.
Although
I agree with the Secretary the record revealed a lack of consistency in
understanding and implementation of Southern Hens’s lockout procedures for the
two sanitation operations, I do not agree this constitutes a violation of the
cited standard. By its terms, the cited
standard addresses only the requirement that the procedures articulate lockout
steps. It is concerned with the “how” of
the lockout procedures, not the “when.”
Southern Hens’s procedures explain how to lock out the Tumbler and
Freezer No. 2. They, therefore, comply
with the cited standard.
The
lockout procedures developed by Southern Hens for the Tumbler and Freezer No. 2,
contained in Exhibits C-8 and C-14, meet the requirements of the cited
standard. The Secretary has failed to
meet his burden to show Southern Hens violated § 1910.147(c)(4)(ii)(B). Item 1a, Citation 1, is vacated.
Item 1b, Citation 1: The Alleged Violation of 29 C.F.R. §
1910.147(d)(4)(i)
Section
1910.147(d) governs the application of energy controlling measures required by
the standard. Section 1910.147(d)(4)(i)
specifically requires a lockout or tagout device be affixed to each energy
isolating device. The Secretary alleges
Southern Hens failed to install a lockout device on the Tumbler while the
injured employee was performing her cleaning operation. Respondent does not deny the injured employee
did not perform the required lockout but argues her failure to do so was the
result of unpreventable employee misconduct.
Applicability of the Standard
Southern
Hens does not dispute the applicability of the lockout standard to the
sanitation process for the Tumbler. For
the reasons discussed with regard to Item 1a, Citation 1, the standard applies
to the cited conditions.
Violation of the Terms of the
Standard
There
is no dispute the injured employee did not deenergize the Tumbler prior to
beginning the cleaning process. Nor did
she affix a lock to the energy isolating device. The Secretary has established Southern Hens
violated the cited standard.
Employee Exposure
There
is no dispute employees are exposed to the hazards of unexpected energization
of the Tumbler during the cleaning process.
The scrubbing process places the employee cleaning the Tumbler within 7
inches of the drive mechanism. The
injured employee’s accident is evidence of the hazard associated with exposure
to the activated drive mechanism.
Employees engaged in the cleaning process were exposed to the hazard
associated with contact with the drive mechanism should the Tumbler unexpectedly
energize during that process.
Employer
Knowledge
To
establish employer knowledge of a violation the Secretary must show the
employer knew, or with the exercise of reasonable diligence could have known of
a hazardous condition. Dun Par Engineered Form Co., 12 BNA OSHC 1962,
1965-66 (No. 82-928, 1986). Because
corporate employers can only obtain knowledge through their agents, the actions
and knowledge of supervisory personnel are generally imputed to their employers,
and the Secretary can make a prima facie showing of knowledge by proving a
supervisory employee knew of or was responsible for the violation. Todd Shipyards Corp., 11 BNA OSHC
2177, 2179 (No. 77-1598, 1984); see also Dun Par Engineered Form Co., 12
BNA OSHC 1962 (No. 82-928, 1986) (the actual or constructive knowledge of an
employer’s foreman can be imputed to the employer); see also W.G. Yates & Sons v. OSHRC, 459 F.3d 604, 607 (5th
Cir. 2006). The Secretary contends Southern Hens had
constructive knowledge of the injured employee’s failure to lock out the
Tumbler.
Constructive
knowledge is shown where the Secretary establishes the employer could have
known of the cited condition with the exercise of reasonable diligence. Par
Electrical Contractors, Inc., 20 BNA OSHC 1624, 1627 (No. 99-1520).
Whether an
employer was reasonably diligent involves a consideration of several factors,
including the employer’s obligation to have adequate work rules and training
programs, to adequately supervise employees, to anticipate hazards to which
employees may be exposed, and to take measures to prevent the occurrence of
violations.
Id.
citing Precision Concrete Constr. 19 BNA OSHC 1404, 1407
(No. 99-707, 2001). “Reasonable
diligence implies effort, attention, and action not mere reliance upon the
action of another.” Carlisle Equipment Co. v. Secretary of Labor, 24 F.3d 790, 794 (6th
Cir. 1994). The Commission has held that
“[r]easonable steps to monitor compliance with safety requirements are part of
an effective safety program.” Southwestern Bell Tel. Co., 19 BNA OSHC
1097, 1099 (No. 98-1748, 2000 (citations omitted), aff’d without published opinion, 277 F.3d 1374 (5th Cir.
2001). The Secretary has met his burden
to establish Southern Hens failed to exercise reasonable diligence.
The
injured employee testified much of the cleaning process on the Tumbler is
performed while the Tumbler is energized and running. Cleaning the Tumbler in this manner was
consistent with the instructions she had received from Jessie, who had
previously performed the job. It was
also consistent with instructions from Manager Webb (Tr. 27). Although she performed the cleaning alone,
other employees, including Manager Webb, walked in and out of the room
throughout the process (Tr. 51-52, 77). Safety
Coordinator Lee had observed the cleaning process for the Tumbler while the
machine was energized and moving (Tr. 225). The Secretary has established Southern Hens
had constructive knowledge employees were engaged in the cleaning process while
the Tumbler was energized and not locked out.
To
meet his burden in this case, however, the Secretary must show more. The Secretary must establish Southern Hens
had constructive knowledge employees were not locking out the Tumbler during
the scrubbing process. I find he has met
that more exacting burden of proof.
The
Secretary correctly points out nowhere in Southern Hens’s lockout procedures
are employees specifically instructed when in the cleaning process to initiate lockout
of the Tumbler.[9] Southern Hens does not deny during the
rinsing and foaming process, the Tumbler is energized and running. None of the written procedures or training
materials contain an explicit instruction to shut down and lock out the
equipment after rinsing and foaming but before scrubbing. Southern Hens points to a single sentence in
a third-party training document that states “Always follow proper
lock-out/tag-out procedures before beginning any cleaning process, or any other
process, which requires contact with equipment.” (Exh. R-25)
This document is not specific to any equipment and provides no further
explanation. It is not a clear
directive.[10] More importantly, the injured employee never
received this document, or the accompanying training provided by the third
party (Tr. 98).[11] Safety Director Lee admitted he had no
evidence the injured employee had received this training (Tr. 209). The record is devoid of any documentation as
to when this training occurred or who attended it. Nor is there any detail as to its contents.
The
injured employee testified she performed the cleaning process on the Tumbler in
the same manner every night (Tr. 55).
She performed it in the manner instructed by the employee who had
previously performed the job and who Southern Hens entrusted to provide the
injured employee with all the necessary training on the Tumbler. Manager Webb was in the out of the room in
which she worked throughout her shift, including times when she was scrubbing
the Tumbler energized. The record
contains no evidence to the contrary. That
the Tumbler is running is apparent (Tr. 241-42). A reasonably diligent employer would have
recognized the injured employee was not locking out the Tumbler before
scrubbing it, exposing her to hazards associated with the energized drive mechanism.
In
2014, a sanitation employee sustained a similar injury while working on the
Tumbler (Exh. C-6). The record contains
no evidence Southern Hens took any action following that incident.
I
find the preponderance of the evidence establishes Southern Hens failed to
exercise reasonable diligence to ensure the Tumbler was locked out during the
cleaning process. The Secretary has
established Southern Hens had constructive knowledge the injured employee had
failed to lock out the Tumbler in violation of the cited standard.
The
Secretary has met his burden to establish Southern Hens was in violation of §
1910.147(d)(4)(i) for failure to lock out the Tumbler during the cleaning
process.
Unpreventable Employee Misconduct
Southern Hens does not deny the injured employee failed to lock
out the Tumbler. Rather, it alleges her
failure to do so was the result of unpreventable employee misconduct. To prevail on the affirmative defense of
unpreventable employee misconduct, an employer must show that it has (1)
established work rules designed to prevent the violation, (2) adequately
communicated those rules to its employees, (3) taken steps to discover
violations, and (4) effectively enforced the rules when violations have been
discovered. See, e.g., Stark Excavating, Inc., 24 BNA OSHC 2218
(Nos. 09-0004 and 09-0005, 2014), citing
Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). Southern Hens has failed to meet its burden
to establish the first two elements of that defense.
As
previously discussed, Southern Hens cannot show it had an established rule, communicated
to employees that, if followed, would have prevented the violation. Contrary to Southern Hens’s contention, there
was no written policy in place specifying lockout is to be performed prior to
the scrubbing process. Southern Hens
provided no evidence employees were so instructed. The general rule to which Southern Hens points
is not specific to the Tumbler and insufficient to provide guidance to
employees. Nor did Southern Hens provide
evidence the injured employee received these instructions. To the contrary, the only evidence regarding
the training the injured employee received on cleaning the Tumbler was her
testimony she was only told to lock out the Tumbler prior to climbing into the
drum.
Southern
Hens relies on the orientation training received by the injured employee and
the fact she had attended safety meetings during which lockout was discussed. The Secretary does not dispute the injured
employee received lockout training when she was first hired and attended safety
meetings during which lockout was a covered topic (Exh. R-3). All the initial training was provided prior
to the injured employee being assigned any specific task and was general in
nature. Safety Coordinator Lee admitted
the video used in the initial lockout training is not specific to Southern
Hens’s operations (Tr. 206). There is no
evidence regarding the specific contents of the safety meetings.[12] There is no evidence the injured employee was
instructed during any of those meetings or her initial lockout training when in
the Tumbler cleaning process to initiate lockout procedures.
Southern
Hens contends the injured employee violated its rule that reads “Keep hands off
moving machinery.” (Exh. R-37) This contention does nothing to support its
affirmative defense. The work rule to
which an employer points must be designed to prevent the violation
alleged. Here the violation is the
failure to lock out the Tumbler. The
rule prohibiting placing one’s hand near moving machinery would not have
prevented the violation.[13]
Southern Hens has failed to meet its burden to
establish its affirmative defense of unpreventable employee misconduct. Item 1b, Citation 1, is affirmed.
Characterization
The Secretary alleges
the violation was serious. A violation is serious when “there
is a substantial probability that death or serious physical harm could result”
from the hazardous condition at issue. 29 U.S.C. § 666(k). The Secretary need not show that
there was a substantial probability that an accident would occur; only that if
an accident did occur, death or serious physical harm would result. As demonstrated by the injured employee’s
partial amputation, the likely injury should an employee be in the zone of
danger while cleaning the Tumbler when it is not locked out is serious physical
harm. The violation is serious.
Item 2, Citation 1: The Alleged Violation of 29 C.F.R. §
1910.212(a)(1)
The cited standard at 29 C.F.R. §
1910.212(a)(1) reads,
One or more methods of machine
guarding shall be provided to protect the operator and other employees in the
machine area from hazards such as those created by point of operation, ingoing
nip points, rotating parts, flying chips and sparks. Examples of guarding
methods are barrier guards, two-hand tripping devices, electronic safety
devices, etc.
The Secretary alleges Chiller No. 2 at Plant
No. 3 was not properly guarded.
Specifically, CSHO Young testified he observed operation of Chiller No.
2 during which product backed up, requiring the operator to push the product
with his hand. This exposed the employee
to an ingoing nip point on the underside of the conveyor from which the product
dropped. Southern Hens contends
employees are provided a tool to push the product that prevents exposure to the
zone of danger.
Applicability of the Standard
Section 1910.212(a)(1) is found in Subpart
O—Machinery and Machine Guarding. Section 1910.212 is captioned “General
requirements for all machines.” This standard applies to all machines not
covered by a more specific standard.
Southern Hens did not dispute the applicability of the standard. To the extent employees are exposed to injury
from the ingoing nip point of the conveyor on Chiller No. 2, it must be guarded
under § 1910.212(a)(1). The standard
applies to the cited conditions.
Employee Exposure
Because §
1910.212(a) is a performance standard, the Secretary must establish the hazard addressed
by the standard existed. Con Agra Flour Milling Co., 16 BNA OSHC
1137, 1147 (No. 88-1250, 1993). In this
case, the Secretary must establish employee exposure to the ingoing nip point
of the conveyor.
In Fabricated Metal
Products, Inc., 18 BNA OSHC 1072 (No. 93-1853, 1997), the Commission
considered the question of employee exposure to the hazards posed by
inadvertent contact with rotating machine parts. The Commission considered its prior holding
in Gilles
& Cotting, Inc.,
3 BNA OSHC 2002 (No. 504, 1976), and Rockwell Inter’l Corp., 9 BNA OSHC 1092 (No. 12470, 1980).
In Gilles & Cotting the
Commission addressed the general question of
employee exposure to hazards. The
Commission set forth a test for employee exposure based on the principle of
“reasonable predictability.” 3 BNA OSHC at 2003. The Commission held
that the Secretary bore the burden of proving “that employees either while in
the course of their assigned working duties, their personal comfort activities
while on the job, or their normal means of ingress-egress to their assigned
workplaces, will be, are, or have been in a zone of danger.” Id.
In Rockwell Inter’l Corp., 9
BNA OSHC 1092 (No. 12470, 1980), the Commission specifically addressed employee
exposure to hazards associated with machine operation. The Commission held,
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 operation exposes him to injury. Whether the point of operation exposes an
employee to injury must be determined based on the manner in which the machine
functions and how it is operated by the employees.
Id. at 1097-98.
Based on these two prior holdings, the Commission concluded,
in order for the Secretary to establish
employee exposure to a hazard she must show that it is reasonably predictable
either by operational necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger. We emphasize that, as we stated in Rockwell, the inquiry is simply not
whether exposure is theoretically possible.
Rather, the question is whether employee entry into the danger zone is
reasonably predictable.
Fabricated Metal Products, 18 BNA OSHC at 1074
(citations omitted).
The question to be answered is
whether employee exposure to the ingoing nip point of the conveyor is
reasonably predictable. The preponderance
of the evidence establishes it was. Clearing
product from the front of the conveyor was part of the normal operation of
Chiller No. 2. Southern Hens knew
product jammed in Chiller No. 2 and the operator cleared these jams “all day.”
(Tr. 130-32; Exh. C-11) CSHO Young
observed the operator performing this task with a tool[14] and his hands (Tr.
126). He used his hands when he was
“getting behind.” (Tr. 126) During this process, the employee’s hand came
within 1 -2 inches of the ingoing nip point on the conveyor. The opening of the ingoing nip point was
approximately ½ inch, sufficient for an employee’s finger to become caught (Tr.
127).
Southern Hens contends operators of
the Chiller are not exposed to a hazard because the proper way to perform the
task of clearing product is to use a 2- to 3-foot metal rake-like tool. Southern Hens’s argument fails. Even if using the tool, the employee’s hand
would be in proximity to the ingoing nip point on the conveyor. Although use of the tool makes the potential
for injury more remote, it does not eliminate it. That employees would be in proximity to the
unguarded ingoing nip point during normal operations of Chiller No. 2 was
reasonably predictable.
Southern Hens focuses on the lack of injuries
attributable to the cited operation. The
Commission has held the occurrence or absence of injuries caused by a machine
is probative evidence of whether the machine presents a hazard. Rockwell Inter’l Corp., 9 BNA OSHC at 1098. Here, however, the objective
facts concerning the operation of the machine show the presence of a hazard. The existence of the hazard is not negated by
a favorable safety record. A. E. Burgess Leather Company, Inc.,
5 BNA OSHC 1096, 1097 (No. 12501, 1977), aff’d, 576
F2d 948 (1st Cir. 1978).
Violation
of the Terms of the Standard
The Commission has long recognized
the cited standard “requires physical guarding of hazards.” B.C.
Crocker Cedar Products, 4 BNA OSHC 1775, 1777 (No.4387, 1976); see also Slyter Chair, Inc. 4 BNS OSHC
1100, 1113 (No. 1263, 1976); and Western
Steel Manufacturing Co., 4 BNA OSHC 1640, 1643 (No. 3528, 1976). There is no dispute the ingoing nip point on
Chiller No. 2 had no physical guard covering it.
Southern Hens suggests the use of the
rake-like tool provided sufficient protection.
Southern Hens cannot rely on human behavior to protect employees from
the hazards addressed in the machine guarding standard. In his statement to CSHO Young the employee stated
he had been told to use the tool but reverted to using his hands because the
tool is heavy. The record contains no
evidence of a rule requiring the tool be used at all times. As
the Commission noted in B.C. Crocker,
the requirement to physically guard employees from hazards of machine
operations “recognizes that human characteristics such as skill,
intelligence, carelessness, and fatigue, along with many other qualities play a
part in an individual’s job performance, and it avoids dependence on human
conduct for safety.” 4 BNA OSHC at 1777; see
also Akron Brick & Block Co., 3 BNA OSHC 1876, 1878 (No. 4859,
1976) (“The plain purposes of the standard are to avoid dependence upon human
behavior and to provide a safe environment for employees in the machine area
from the hazards created by the machine’s operation.”); and H.B. Zachry Company, 8 BNA OSHC 1669, 1674 (No. 76-2617, 1980)
(“Although there is little chance of an injury if the machines are operated
properly, the standard is plainly intended to eliminate danger from unsafe
operating procedures.”). Southern Hens
cannot rely on employees consistently using a heavy hand tool to provide
protection from hazards of the Chiller operation.
The Secretary has established Southern
Hens violated the terms of the standard.
Employer
Knowledge
The Secretary has the burden to
establish Southern Hens was aware Chiller No. 2 was not properly guarded. The Secretary has met that burden. The lack of a physical guard on the conveyor
would have been easily observed by any management employee passing by the
area. The identical conveyor next to
Chiller No. 2 in the plant had a plastic guard covering the ingoing nip
point. During the walk around
inspection, Scott French, the plant manager, told CSHO Young the company was
aware of problems with jamming on Chiller No. 2 (Tr. 131-32). Southern Hens does not deny it was aware of a
need for employees to clear product from the front of the conveyor. The company had provided a tool for that
purpose. The Chiller Operator told CSHO
Young he performed that task “all day.” (Tr. 130; Exh. C-11) A reasonably diligent employer would have
been aware its employees were exposed to the unprotected ingoing nip point on
the conveyor. The Secretary has
established Southern Hens had constructive knowledge of the violative
condition.
Due
Process
Southern Hens raised the affirmative
defense that § 1910.212 violates its right to due process because it does not
specify the means of compliance. I find
no merit to Southern Hens argument.
When considering
remedial legislation such as the OSH Act and its implementing regulations, the
purported vagueness of a standard is judged not on its face but rather in the
light of its application to the facts of the case. PBR, Inc. v. Secretary of Labor, 643 F.2d 890,
897 (1st Cir. 1981); McLean Trucking Co. v. OSHRC, 503 F.2d 8,
10-11 (4th Cir. 1974).
Moreover, the regulations will pass constitutional muster even though they are
not drafted with the utmost precision; all that due process requires is a fair
and reasonable warning. Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30
(7th Cir. 1976).
Faultless Div., Bliss & Laughlin Ind. v.
Secretary of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982). When considering the constitutionality of
performance standards such as the machine guarding standard, the Commission has
held such standards “are not constitutionally
infirm on due process grounds so long as a reasonableness requirement is read
into them.” Siemens Energy and
Automation Inc., 20 BNA OSHC 2196, 2198 (No. 00-1052, 2005), citing W.
G. Fairfield Co. v. OSHRC, 285 F.3d 499, 507 (6th Cir. 2002). “A standard is not invalid merely because an employer
must exercise reasoning and judgment to decide how to apply the standard in a
particular situation.” Western Waterproofing
Co., 7 BNA OSCH 1625, 1629 (No. 1087, 1979).
The standard at issue provides
sufficient guidance to employers as to its applicability and compliance
requirements. It provides a
non-exhaustive list of the types of hazards it is intended to protect against
and methods of compliance. That Southern Hens would have to exercise some
judgment as to how to best protect its operators from the ingoing nip point
hazard does not render the standard unconstitutionally vague. Southern Hens’s affirmative defense of lack
of due process is rejected.
The Secretary has met
his burden to establish a violation of § 1910.212(a)(1). Item 2, Citation 1, is affirmed.
Characterization
The Secretary alleges
the violation was serious. As previously
noted, the opening under the conveyor that posed the pinch point hazard was
large enough for an employee’s finger.
Movement of the conveyor could draw in an employee’s gloved hand. CSHO Young testified such an event could
result in amputation. The likely injury should an employee be
in the zone of danger while operating Chiller No. 2 is serious physical
harm. The violation is serious.
Penalty
Determination
The Commission, in assessing an
appropriate penalty, must give due consideration to the gravity of the
violation and to the size, history and good faith of the employer. See
§ 17(j) of the Act. The Commission is
the final arbiter of penalties. Hern
Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962, 1994), aff’d,
937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 17 BNA OSHC
1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty
amounts but places no restrictions on the Commission’s authority to raise or
lower penalties within those limits.”), aff’d, 73 F.3d 1466 (8th Cir.
1996). In assessing a penalty, the
Commission gives due consideration to all of the statutory factors with the
gravity of the violation being the most significant. 29 U.S.C. § 666(j); Capform Inc., 19
BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 152 (5th
Cir. 2002) (unpublished). “Gravity is a principal factor in a penalty determination
and is based on the number of employees exposed, duration of exposure,
likelihood of injury, and precautions taken against injury.” Siemens Energy 20 BNA OSHC at 2201.
The gravity of the violation
alleged in Item 1b, Citation 1, is high.
The injured employee testified she cleaned the Tumbler in the same
manner every night. Exposure to the
hazard of moving machine parts was frequent and the likelihood of injury
substantial. The severity of the
possible injury is manifest. A high
gravity-based penalty is warranted.
Southern Hens is entitled to some reduction for its size (700 employees)
and lack of history of violations.
Although the company promptly reported the accident and cooperated in
the inspection, its response to a prior similar injury and to this accident
weigh against a significant reduction for good faith. A penalty of $7,000.00 is assessed for Item
1b, Citation 1.
Item 2, Citation 1, warrants a
less severe penalty. The Chiller
Operator was exposed nightly during his entire shift. The possible injury was severe, but the
possibility of injury remote. As
Southern Hens points out, it has no history of injury on Chiller No. 2. Southern Hens is entitled to consideration
for its size and lack of violation history.
A penalty of $5,000.00 is assessed for Item 2, Citation 1.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The foregoing decision
constitutes the findings of fact and conclusions of law in accordance with Rule
52(a) of the Federal Rules of Civil Procedure.
ORDER
Based
upon the foregoing decision, it is ORDERED that:
1. Item
1a of Citation No. 1 is vacated.
2. Item
1b of Citation No. 1, alleging a serious violation of § 1910.147(d)(4)(i), is AFFIRMED and a penalty of $7,000.00 is
assessed.
3. Item
2 of Citation No. 1, alleging a serious violation of § 1910.212(a)(1), is AFFIRMED and a penalty of $5,000.00 is
assessed.
SO
ORDERED.
/s/ Date:
March 20, 2018 HEATHER A. JOYS
Administrative Law Judge
Atlanta, Georgia