This case is yet another example of how “legal” and “safety” can be so far apart from each other. This case was won by the company because OSHA did a horrible job in defending their citation; and yet, it will become ammo for companies to use in future cases. Let’s not fool ourselves into believing that a 1/4″ opening around a conveyor does not present a hazard. In this case, a young lady lost her index finger when she tried to remove a piece of chicken from this 1/4″ opening between a conveyor and a plastic back splash. The company argued that 1/4″ openings are deemed acceptable in all guarding AND that this area did not need to be guarded because the rate of the chicken cone conveyor was too fast, thus never allowing the employees to reach into the opening. BOTH of these arguments are badly flawed based on the facts that: 1) an employee reached into the gap and 2) had her finger amputated; yet the review commission vacated the citation based 100% on the legal argument and the fact that OSHA could not defend it’s citation. So yes the company “won”, but there is a lot of safety we can learn from this case. By the way, I personally would have cited 1910.147 seeing how she was “cleaning” or “clearing a jam” when she reached into the opening to remove the chicken and the conveyor had not been locked out.
A poultry processing plant was inspected following a reported finger amputation. OSHA commenced an inspection of the worksite on July 1, 2015, with an additional site visit on July 29, 2015. As a result of the inspection, a Citation was issued alleging a violation of 29 C.F.R. § 1910.212(a)(1) and proposed a $7,000.00 penalty.
Employees debone chickens on approximately eight “cone lines” at the poultry processing plant. Each cone line has a continuously moving conveyor with several “cones” approximately twelve inches apart. Employees stand on one side of the cone line making cuts on chicken carcasses as they come down the line. Opposite from where the employees stand, there is a splashguard running the length of the cone line. The splashguard had been installed to prevent chicken from falling on the floor. Prior to OSHA’s first site visit, there was a gap of between one-quarter and three-quarters of an inch between the bottom of the splashguard and the conveyor belt.
EXAMPLE photo of a Cone Conveyor – NOT the conveyor involved in the accident. Source
ACCIDENT
Around 9:00 a.m., on June 29, 2015, most of the employees on one of the cone lines took a ten minute break. One employee declined to take her break and instead worked to catch up on chicken carcasses she did not have time to complete when the line was running. After completing the catch-up work, the employee saw a piece of chicken stuck between the splashguard and the conveyor belt and attempted to remove it with her fingers. As the conveyor belt moved along, one of her fingers became trapped. She screamed and another employee pushed an emergency button to stop the conveyor belt. At that point, the trapped employee pulled back her hand and realized her left index finger had been amputated. She promptly sought medical care with the aid of her co-workers.
A few hours after this incident, the Corporate Safety and Health Coordinator reported the accident to OSHA. Two days later, on July 1, 2015 a CSHO inspected the worksite. During the course of OSHA’s inspection, on July 25 and 26, 2016, the Corporate Safety and Health Coordinator lowered the splashguard to eliminate the gap between the splashguard and the conveyor belt. On July 29, 2016, the CSHO again visited the worksite and viewed the cone line as modified.
DISCUSSION
A.Applicable Law
For the Secretary to establish a violation of any OSHA standard, he MUST prove that:
(1) the cited standard applies;
(2) its terms were violated;
(3) employees were exposed to the violative condition; and
(4) the employer knew or could have known with the exercise of reasonable diligence of the violative condition. The Secretary has the burden of proving each of these elements by a preponderance of the evidence.
B.Applicability
The cited standard requires the employer to provide one or more methods of machine guarding:
“to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.” 29 C.F.R. § 1910.212(a)(1).
The guarding requirements apply to the moving parts of all types of industrial machinery and regardless of whether the hazards are created during production or non-production operations. Because § 1910.212(a) requires employers to guard against “hazards,” without providing specific ways to do so, the Secretary must prove operating the machinery presented a hazard. (Secretary must establish the rotating parts presented a hazard). The fact it is possible for an employee to come into contact with a machine’s moving parts is insufficient to establish a violation. The Secretary must show employees are exposed to a hazard because of the way the machine functions and how it is operated(possibility of exposure to an unguarded nip point insufficient to sustain a violation).
The Citation, as amended, alleges the business violated 29 C.F.R. § 1910.212(a)(1) because:
“[o]ne or more methods of machine guarding was not provided to protect employees on the cone line from hazards created by the opening between the splash guard and the cone line.”
The Secretary contends in the Citation, this failure to guard resulted in an employee being “Exposed to an amputation hazard when performing tasks including, but not limited to, cleaning debris jammed between the splashguard and the cone line” on or about July 1, 2015.
The company implores the court to read the cited standard as not requiring guarding of the gap between the splashguard and the rest of the cone line. Citing two machine specific guarding standards and a 2007 OSHA publication titled Safeguarding Equipment and Protecting Employees from Amputations (Safeguarding Publication), the company argues OSHA has concluded gaps of the size present on the cone line are safe. It asserts the Secretary failed to establish it had noticed the small gap was a hazard and therefore the Citation must be vacated.
As noted above, the cited standard requires employers to protect employees from hazards in machine areas “such as those created by points of operation, ingoing nip points, rotating parts, flying chips and sparks.” 29 C.F.R. § 1910.212(a)(1). The CSHO testified there were no hazards related to flying chips or sparks. He did not indicate whether a point of operation, ingoing nip point, or rotating part created any hazards. Although the video of the cone line appears to show rotating parts, the citation does not refer to these and the CSHO did not testify they should have been guarded. In fact, the CSHO offered no explanation for what needed to be guarded on the cone line and did not understand why the Secretary amended the citation to allege a violation of § 1910.212(a)(1).
While the sources of possible hazards set forth in the cited standard is not exhaustive, the Secretary nonetheless must present evidence supporting his view of what the hazard was the company needed to guard. Here, the Secretary merely alleges employees working on the cone line were exposed to a caught by hazard, without identifying if that hazard related to the conveyor, the splashguard, the gap, or something else. When asked at the hearing what hazards he considered employees working on the cone line to be exposed to, the CSHO’s response was unclear. The transcript reads “[t]o a (unintelligible) hazard.”
Neither party sought to correct the transcript nor did the Secretary present other evidence clarifying the testimony. The occurrence of the accident alone is insufficient to establish there was a hazard to which the cited standard applied. See Ormet Corp., 9 BNA OSHC 1055, 1058 (No. 76-530, 1980) (vacating a citation of § 1910.212(a)(1) due to lack of evidence that a hand or arm could be pulled or caught in an unguarded area).
The Secretary also failed to establish the company had sufficient notice of the standard’s applicability to the gap between the splashguard and the conveyor. With generally worded standards, the Fifth Circuit has made clear: “[d]ue process requires employers be given reasonably clear advance notice of what is required of them.” Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288 (5th Cir 1981). Such notice may be provided by:
(1) industry custom and practice;
(2) the injury rate for the type of work;
(3) interpretations of the regulation by the Commission; or
(4) the obviousness of the hazard.
The record contains no evidence about industry custom or practice. Nor did the Secretary present any evidence of past injuries or accidents which would have put the employer on notice the cone line required additional guarding. Indeed, the company represents there were no injuries or other issues with the gap, such as gloves or fingers becoming stuck, prior to the accident which led to the CSHO’s inspection.
As for Commission precedent, the Commission found 29 C.F.R. § 1910.212(a) applicable to conveyors and a judge applied it to a cone line at a poultry plant. See U.S. Steel Corp., 5 BNA OSHC 2063, 2064 (No. 15500, 1977) (finding § 1910.212(a) applicable to a conveyor); Landish, 10 BNA OSHC at 1237 (same); Ormet, 9 BNA OSHC at 1058 (finding the standard applicable to a conveyor but finding no violation); Murray Chicken, 25 BNA OSHC at 1161 (ALJ) (finding the standard applicable to chicken leg splitter and a cone line at a poultry plant).
However, none of these cases relate to a gap that was not a point of operation, ingoing nip point, or rotating part. Further, in the instant matter, the Secretary is not arguing the conveyor required a guard. He argues the gap needed to be guarded without presenting evidence as to what type of hazard the gap created. Thus, the Court finds Commission precedent did not provide sufficient notice of 29 C.F.R. § 1910.212(a)’s applicability to the condition the Citation references.
In terms of the obviousness of the hazard, the company argues machine specific guard standards and the Safeguarding Publication indicate it did not need to guard the one-quarter inch gap. The cited standard is contained within Subpart O- Machinery and Machine Guarding. Some of the standards within this subpart relate to specific types of machines, while others, including the cited standard, more generally address “machine areas.” Compare 29 C.F.R. § 1910.212 (general requirements for all machines) with 29 C.F.R. § 1910.213 (woodworking machinery requirements). Neither the Secretary nor the company alleges any of the standards in Subpart O relating to specific types of machinery apply here. Instead, the copmpany argues a standard related to a certain type of guard on an abrasive wheel and one concerning power presses establishes a one-quarter inch opening is safe (29 C.F.R. §§ 1910.215(b)(9), 1910.217(f)(4)).
There is no dispute the cone line was not an abrasive wheel or a power press. What may be a permissible type of guarding for one type of machine or one aspect of its use is not acceptable for all machines or for all uses as the hazards likely differ. OSHA has adopted different standards for different types of machinery and imposes different requirements depending on how a machine is being used and what other precautions are taken. For example, in the abrasive wheel guarding standard, a one-quarter inch gap is permissible at the point of operation only when necessary and only if several safety other measures are in place, including other guards. 29 C.F.R. § 1910.217(c)(1). In the same way, the power press standard permits openings of a one-quarter inch in size only under certain narrow circumstances. 29 C.F.R. § 1910.217(c)(3)(iii)(f) (“Guards shall be used to protect all areas of entry to the point of operation not protected by a presence sensing device”).
The company also cites the Safeguarding Publication, which states for die presses, the employer must ensure the use of point of operation guards for openings of one-quarter inch or greater. In another section of the document concerning power press brakes, the document indicates a one-quarter inch opening can be permissible if the employer also implements other safeguards.
Although not cited by the company, the Safeguarding Publication makes clear OSHA’s position that: “[a]ny machine part, function, or process may cause injury must be safeguarded”. Because the Safeguarding Publication specifies what constitutes appropriate guarding depends on the machine’s design (including what types of safeguards are in place) and how it is used, it does not establish OSHA has concluded gaps of one-quarter inch are permissible.
However, while neither the machine specific standards nor the Safeguarding Publication, establish one-quarter inch openings are universally permissible, these things lend credibility to the company’s claim under Fifth Circuit precedent it did not have notice the one-quarter inch gap was a hazard to which the cited standard applied. The supervisor of the cone lines, completed daily safety inspections but never identified the gap as a hazard. He acknowledged reaching over the line and into the gap to remove chicken would be dangerous, but, indicated he was unaware employees did this and expressed skepticism they would have time to do so given the rapid pace at which they were required to cut the chickens coming down the cone line. See Armour Food Co., 14 BNA OSHC 1817 (No. 86-0247, 1990) (discussing how difficult it would be for employees to come into contact with unguarded parts).
The company’s safety and health coordinator also testified he was unaware of any hazard on the cone line and expressed similar skepticism employees would have time to reach across the line while it was moving. He viewed the splashguard not as a machine guard or something related to safety but solely as a means to keep product on the line. It was not intended to protect employees from a moving part and was not located at a point of operation. He considered the gap to be too small to trap a finger or hand. He believed the employee was injured because she failed to don her gloves appropriately causing the tip of her glove to become trapped, leading to her injury.
The Secretary neither disputes this explanation for the injury nor provided evidence the gap was of a sufficient size to trap a finger when gloves were appropriately worn (or without any personal protective equipment). The Secretary does not allege the company’s personal protective equipment policies and procedures were deficient such that it could have been anticipated an employee would improperly don a glove. Likewise, the Secretary does not suggest the company knew or could have known an improperly donned glove could become trapped in the gap. In addition, there is no evidence the company’s overall pattern of inspecting for hazards was insufficient or it otherwise was capable of recognizing the hazard before the accident. While the Secretary need not prove how an injury occurred, or even that there was one, for the cited standard to apply, he must show the gap presented a hazard the employer was capable of recognizing.
The evidence does not show the company had the level of notice the Fifth Circuit requires. There had been no injuries and there was no evidence of industry customs. Nor has the Commission previously applied the standard the way the Secretary attempted to do so here. Finally, the Secretary did not show the hazard was obvious enough such that the employer should have known or inquired about guarding. The Court therefore finds the Secretary has failed to establish the violation alleged in Citation 1, Item 1.
Based upon the foregoing decision, it is ORDERED that:
Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1910.212(a)(1), is VACATED and no penalty is assessed.
SO ORDERED.
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