Last week I shared this OSHRC case as a “cultural example” of how a management team tries to move on from a Safety Manager leaving the facility and their duties were passed on to the HR manager who had no S&H experience or training, so they hire an outside safety consultant to help with LOTO citations from OSHA. This is a technical review of the LOTO citations, Egress citations, and PPE citations. LOTO issues were lack of machine-specific procedures for equipment that had more than one (1) energy source, lack of proper training on procedures, and periodic inspections. The egress issues were labeling EXITs and no labeling doors that did not lead to an exit. The PPE issues were workers wearing PPE from the processing area where chickens were slaughtered into the cafeteria and one instance with torn PPE.
This case does a nice job of explaining many of the considerations that OSHA takes into account when making a citation Willful and/or Repeat.
Respondent operates a poultry processing facility. Both it and a predecessor operating at the same location have a history of violating provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the OSH Act). This matter concerns an inspection of the facility by OSHA that began on March 2, 2016. This investigation led to the Secretary of Labor (Secretary) issuing three Citations on September 2, 2016.
These Citations, as amended, include alleged violations of the lockout/tagout (LOTO) standard. The Secretary alleges, in the alternative, that the LOTO violations should be characterized as willful, repeat or serious. The Citations also allege serious violations of standards related to floor holes, exits, noise exposure, and personal protective equipment (PPE).
Citation 1 includes three separate items and was issued on September 2, 2016. On the same day, Citations 2 and 3, each with multiple separate items. Respondent filed timely notices of contest bringing the matters before the Occupational Safety and Health Review Commission (the Commission).
For the reasons discussed, these alleged violations are affirmed: from Docket No. 16-1775, Citation 1, Items 1a, 1b and 1c; and, from Docket No. 16-1731, Citation 2, Item 1; Instances (a) and (e) of Citation 2, Item 3b; Citation 2, Item 4; Citation 2, Items 5a, 5b and 5c; Citation 2, Item 7; and Citation 3, Item 2.
Instance (d) of Citation 2, Item 3b from Docket No. 16-1731, is vacated.
Factual Background
I. Current Management Employees
Respondent operates a large poultry processing facility with over two-hundred and fifty employees working in several different areas. It has approximately fifty different machines, some with multiple energy sources.
The Director of Operations (Operations Director) and has always been involved in safety at the facility. Before accepting his current position in January 2013, he served in a few other leadership roles at the facility, including part-owner and CEO, from 2009 until mid-2012. At the time of the Citation, his direct reports included the Human Resources Manager (HR Manager). The HR Manager worked for the company since 2013. She is responsible for employee safety and health along with payroll, recruiting, hiring, and workers’ compensation claims. The company had a high turnover and had difficulty keeping some positions filled.
There is a Superintendent. He has been superintendent for six years. He worked in a few different capacities before becoming Superintendent.
There is a Facility Maintenance Manager. He started working for the Respondent in 2015 in the maintenance department. At the start of the OSHA investigation in 2016, another manager led the maintenance department. After he left, this new manager assumed his responsibilities and was eventually promoted to Maintenance Manager. He reports to both the Director of Ops and the Superintendent. The maintenance department has between four and six employees.
II. Corporate History
The facility has been operated as a poultry processing plant for several years, albeit with different ownership structures. In 2009, Mr. Wieder, his father, and another business partner purchased the business and named it “Mehadrin Kosher Poultry” (Mehadrin). In 2010, a new company called MVP Kosher Foods, LLC (MVP) was formed and it purchased the business from Mehadrin. Mr. Wieder continued to work at the facility as MVP’s CEO and was on the Board of Directors. He was essentially the top person at the facility. He remained in this role from when the business was purchased by MVP until mid-2012. For a few months after Mr. Weider’s departure MVP continued to operate the plant without him. Then, in late 2012, MVP ceased operations and the facility temporarily closed. Another company, the current respondent, purchased the business and resumed operations at the facility shortly thereafter in January 2013. When the facility re-opened, Mr. Wieder returned to work at the facility, this time for the current owner as the Operations Director. Several other key employees of MVP, such as the Superintendent, also returned to work at the facility after it resumed operations.
III. History of Citations
Both the Respondent and its predecessor, MVP, were cited for violations of the OSH Act. In February 2012, while Mr. Wieder was still CEO of the facility, OSHA commenced an investigation. This investigation led to the issuance of citations to MVP in August 2012 (2012 Citations). These 2012 Citations included, among other things, three serious violations of the LOTO standard, 29 C.F.R. § 1910.147, and one serious violation of the standard concerned with occupational noise exposure, 29 C.F.R § 1910.95(c).
After the Respondent took over the facility, Mr. Wieder, the Operations Director, reviewed the 2012 Citations to assess whether the violations had occurred and whether they would be able to abate the violations. After concluding it could comply, the company entered into a settlement agreement with OSHA on August 7, 2013 (the 2013 Settlement Agreement). Mr. Wieder also reviewed this 2013 Settlement Agreement, by which the current owner:
(1) accepted the violations that had been issued to MVP,
(2) agreed to pay $10,000, and (3) agreed to take various abatement actions to address the violations. Mr. Wieder was responsible for ensuring the respondent complied with the agreement.
The Superintendent acknowledged that the management in place before 2013 was not concerned about safety. However, by the time of the 2013 Settlement Agreement, the Respondent had a dedicated health and safety manager, Steve XXXXXXX. He reported directly to Mr. Wieder and was hired to ensure compliance with OSHA and regulations issued by the United States Department of Agriculture (USDA). A few months after the Respondent signed the 2013 Settlement Agreement, OSHA inspected the facility again. This inspection resulted in the issuance of several citations on June 10, 2014 (2014 Citations). The 2014 Citations included violations related to the same LOTO and hearing protection standards that were resolved by the 2013 Settlement Agreement. Specifically, the 2014 Citations included:
(1) a repeat violation of 29 C.F.R. § 1910.147(c)(4)(i), for insufficient LOTO procedures;
(2) a serious violation of 29 C.F.R. § 1910.147(c)(6)(i), for failing to conduct periodic inspections of the company’s energy control procedure;
(3) a serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), for failing to appropriately train employees about energy isolation and control; and
(4) a repeat violation of 29 C.F.R. § 1910.95(c)(1), for failing to have an effective hearing conservation program.
In all, the 2014 Citations included fourteen violations, six of which were characterized as repeat. Mr. Wieder reviewed the 2014 Citations when they were issued. He then, on the Respondent’s behalf, executed two settlement agreements (2014 Settlement Agreements) to resolve the 2014 Citations (one relating to the safety violations, including the LOTO standard, and one relating to the violation for lacking an effective hearing conservation program). In the 2014 Settlement Agreements, Respondent accepted the violations as issued, including the characterization of six of the violations as repeat, and agreed to pay $40,360 in penalties. Respondent also agreed to retain a consultant to develop and implement a written health and safety program and to establish a program of at least monthly inspections.
Around the same time as when the 2014 Settlement Agreements were reached, the health and safety manager left the facility. Mr. Wieder then assigned key aspects of Respondent’s health and safety program to the HR Manager. He had to delegate safety responsibility. It was not possible for him to do it himself along with his other responsibilities.
The HR Manager’s new safety and health responsibilities were in addition to continuing her human resources responsibilities, such as payroll and hiring. When Mr. Wieder assigned the new duties to her, she had been working for the Respondent for about a year. She had no professional health and safety experience and, when she began working for the Respondent, she did not know she would end up with responsibilities related to this area. Before making this change, Mr. Wieder did not ask her anything specific about safety and health, such as her understanding of LOTO requirements or hearing conservation. Still, she was given responsibility for all safety orientations and a large part of what had been the former S&H Manager’s other responsibilities.
Initially, Mr. Wieder planned to hire a full-time health and safety manager to replace the former S&H Manager. He recognized that the HR Manager did not have a professional or educational experience with health and safety. And he acknowledged that he himself was not an expert in safety. However, the Respondent had difficulty recruiting someone at the salary and benefits package it wanted to offer. So, although having the HR Manager handle employee health and safety was initially planned as temporary, she was still responsible for this area, along with continuing to fulfill numerous other responsibilities, when OSHA commenced another inspection over a year later.
The HR Manager received some assistance with employee safety and health compliance after Mr. Wieder complied with the 2014 Settlement Agreements by retaining an outside consultant to assist with health and safety at the facility for one year. The consultant tried to assist the Respondent in abating the 2014 Citations and to develop a health and safety program for the company. The HR Manager was responsible for making sure the consultants complied with the agreement for services and she served as it’s point of contact at the facility.
The consultant’s primary goal for the one-year contract was to ensure that the Respondent properly abated the 2014 Citations. It was not tasked with ensuring day to day compliance. The consultants visited the site four times, discussed what actions Respondent needed to take to abate the violations, and provided a draft document titled Control of Hazardous Energy (the LOTO Plan) to Respondent in October 2015. The HR Manager reviewed the LOTO Plan and Mr. Wider provided input on its development. The LOTO Plan included steps to de-energize machines powered by a single plug. However, it needed to be supplemented with LOTO procedures for the specific machines at the facility with more than one source of energy and would also need to be updated as the facility acquired additional electronic equipment.
A few months after the consultants provided the LOTO Plan, on March 2, 2016, OSHA commenced two more inspections of the facility. Inspection number 1132233 resulted in one Citation alleging willful violations of the LOTO standard being issued on September 2, 2016. Inspection number 1131470 led to one serious Citation, with eight separate items, and one other-than-serious Citation with four separate items being issued on September 2, 2106.
IV. 2016 Citations
A. Withdrawn Items
Respondent timely contested the Citations. Several violations alleged are no longer in dispute. At the hearing, the Secretary withdrew Citation 1, Item 2, from the Citation issued after inspection number 1132233. He also withdrew these items from the Citations issued after inspection number 1131470: Citation 2, Item 3a; Instances (b) and (c) of Citation 2, Item 3b; Citation 2, Item 5d; and Citation 3, Items 1 and 4. After the hearing, the Secretary withdrew these additional items, which were also from the Citations issued after inspection number 1131470: Citation 2, Items 2, 6, and 8, and Citation 3, Item 3.
B. Accepted Items
In its post-hearing brief, Respondent accepted Citation 2, Items 5a and 5b, which were part of the Citations issued as a result of inspection 1131470.
C. Amended Items
Before the hearing, the Secretary moved to amend Citation 1, Items 1a, 1b, and 1c, to allege, in the alternative, that the violations should be characterized as repeat. The amendment was granted without objection. At the hearing, the Secretary moved to amend (d) of Citation 2, Item 3(b), which initially alleged a violation of 29 C.F.R. § 1910.137(b)(5), to allege, in the alternative, a violation of 29 C.F.R. § 1910.137(b)(4). Respondent did not object to that amendment either and it was also granted.
D. Items to be Adjudicated
The remaining items still in dispute relate to the LOTO requirements, floor holes, exits, occupational noise exposure, and PPE. Specifically:
Citation 1, Item 1a, which alleges a willful, repeat or serious violation of 29 C.F.R. § 1910.147(c)(4)(i);
Citation 1, Item 1b, which alleges a willful repeat or serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A);
Citation 1, Item 1c, which alleges a willful, repeat or serious violation of 29 C.F.R. § 1910.147(c)(6)(i);
Citation 2, Item 1, which alleges a serious violation of 29 C.F.R. § 1910.23(a)(8);
Instances (a), (d) and (e) of Citation 2, Item 3b, which allege serious violations of 29 C.F.R. § 1910.37(b)(5);
Citation 2, Item 4, which alleges a serious violation of 29 C.F.R. § 1910.95(b)(1); Citation 2, Item 5c, which alleges a serious violation of 29 C.F.R. § 1910.95(i)(3);
Citation 2, Item 7, which alleges a serious violation of 29 C.F.R. § 1910.132(a); and
Citation 3, Item 2, which alleges an other than serious violation of 29 C.F.R. § 1910.95(m)(2)(ii)(E).
Discussion
As a preliminary matter, Respondent contends the Citations at issue were “brought in contravention to OSHA’s field operations manual.” OSHA provides guidance to its inspectors in the form of a “Field Operations Manual,” which is often referred to as the FOM. The Commission has long held that FOM does not create rights or defenses. Accordingly, even if Respondent had evidence of a failure to comply with the FOM, such evidence would not alter its responsibility to comply with the OSH Act or relieve it from liability if it fails to do so.
While the FOM is not binding, the Secretary does have the burden of proving the violations alleged. The Secretary must show by a preponderance of the evidence that:
(1) the cited standard applies;
(2) its terms were violated;
(3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and
(4) one or more employees had access to the cited condition.
I. Citation 1, Willful Violations of the LOTO Standard (29 C.F.R. § 1910.147(c))
A. Citation 1, Item 1a – Failure to Have Machine Specific LOTO Procedures – 29 C.F.R. § 1910.147(c)(4)(i)
Citation 1, Item 1a, alleges that, in violation of 29 C.F.R. § 1910.147(c)(4)(i), Respondent failed to develop sufficient LOTO procedures for various equipment:
Employees performed servicing and maintenance operations on chicken processing and production equipment including but not limited to the AMFEC Mixer Model #510, the chamber machine … and frank-o-matic and the employer had not developed machine-specific lock out tag out procedures detailing the appropriate procedure to lock and tag the equipment out of service, thereby exposing employees to serious injury, on or about March 2, 2016.
At the hearing, the Secretary presented evidence regarding the lack of specific LOTO procedures for four machines: the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic.
1. Applicability and Violation
The LOTO standard covers the servicing and maintenance of machines in which the unexpected energization or start-up, or the release of stored energy could cause injury to employees. 29 C.F.R. § 1910.147(a)(1)(i). “Servicing and/or maintenance” includes “cleaning” machines. When an employee is required to service or maintain a machine with the potential to energize, start-up, or release stored energy without sufficient notice, an energy control program is required. Energy control procedures must be “developed, documented and utilized for the control of potentially hazardous energy when employees are engaged” in activities such as service, maintenance, or cleaning. 29 C.F.R. § 1910.147(c)(4)(i).
Respondent does not contest the standard’s applicability and the record would not support such a position. Employees engaged in routine cleaning, service, and maintenance activities for at least four specific machines (the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic). This work could result in injuries if the machines unexpectedly started up during these activities. Rather than contesting applicability, Respondent argues its LOTO program sufficiently addressed the four machines. The Secretary disagrees. He argues that Respondent’s program generically covered all machines and lacked enough detail to permit employees to appropriately lockout the four machines with more than one source of energy.
The cited standard requires LOTO procedures that specifically address how to control hazardous energy for each type of machine. 29 C.F.R. § 1910.147(c)(4). The procedures must be sufficiently specific to “enable an employee to lock out a machine safely.” When employers have different types of machines, it is unlikely a single identical LOTO procedure will be effective for all machinery. In particular, generic LOTO procedures are not permissible for machines with more than one source of energy. 29 C.F.R. § 1910.147(c)(4)(i); (finding procedures inadequate when they failed to account for each energy source)
As noted, as part of the resolution of the 2014 Citations for failing to comply with the LOTO standard, the Respondent hired the safety consultant, who, among other things, developed materials about energy control, including the LOTO Plan. This LOTO Plan provides background on the control of hazardous energy, including the text of the LOTO standard. It has a detailed standard procedure for single energy source/single plug machines. In other words, the LOTO Plan provides the steps on how to de-energize only those machines with one source of energy that can be controlled by removing a single plug. The LOTO Plan notes that machines can have multiple energy sources but does not include LOTO procedures for such equipment.
Respondent concedes its LOTO Plan lacks machine specific procedures for the four specific machines (the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic). Each of these machines had two sources of energy—electric and pneumatic. While the LOTO Plan instructs employees on how to de-energize machines with a single energy source powered by a single plug, it does not address how to control the pneumatic sources of energy for the four machines at issue. Respondent claims that although the LOTO Plan lacked this information, “LOTO machine specific procedures for the chamber machine, a frank o matic, a mixer, and a gizzard machine … were developed separately for the USDA.” But, it neither offered nor introduced any evidence of these or any other machine specific procedures. The current Maintenance Manager, acknowledged that the Respondent lacked machine specific procedures in 2016. Although Mr. Wieder referred to a “plan for USDA,” he acknowledged that he had not seen “USDA documents” for the four machines the Secretary discussed as having multiple energy sources and they were not part of the LOTO Plan in place at the time of the Citation. Nor were any such procedures provided to the safety consultant. Indeed, after March 2, 2016 (the date referenced in the Citation), Respondent had the safety consultants come back and create, for the first time, machine specific LOTO procedures. If the Respondent had machine specific LOTO procedures, retaining the safety consultant to develop the procedures after the inspection started would not have been necessary.
Respondent also cites its Lockout/Tagout Periodic Inspection Forms as evidence of appropriate machine specific procedures. There were no inspection forms for the chamber machine, the mixer or the frank-o-matic. One form indicates that the Maintenance Manager at the time, reviewed the energy control procedures for the gizzard machine with one employee on January 10, 2014. This document indicates he reviewed the employee’s understanding of lockout procedures for that machine but provides no information as to what procedures the employee followed during the review to safely control hazardous energy. At best, the form suggests that, two years before the 2016 OSHA inspection, one employee showed the Maintenance Manager how he locks out the gizzard machine. There is no evidence the other twenty employees who might need to clean or maintain the machine understood how to safely lockout the machine to control hazardous energy. Nor is there evidence that the lockout procedure used for the gizzard machine, or the procedures for any of the other machines with multiple energy sources, was documented as of the date referenced in the Citation. Thus, there is no evidence Respondent had machine specific procedures with enough information to permit employees to safely lockout machines with more than one energy source.
By not addressing all sources of energy for the four different machines, Respondent’s LOTO program failed to provide enough information to permit employees to lock the machines out and protect themselves from unexpected energization. Respondent violated the cited standard.
2. Exposure
Employees routinely engaged in service and maintenance activities on the four machines. The chamber machine vacuum seals product into packing by sucking the air out of the bag containing product and then sealing it. It was used at least weekly and sometimes as often as once a day. Maintenance employees serviced and repaired the machine. This sometimes required taking the machine apart. If the chamber machine was not properly locked out, the machine’s moving parts could injure an employee.
The gizzard machine separates the gizzard from the rest of the animal. It had several different gears and had to be taken apart and cleaned at the end of every day it was used. The machine frequently broke down and had to be repaired. Like the chamber machine, the gizzard machine’s moving chains and gears could cause injury if the machine was not properly locked out before cleaning or repairs commenced.
The mixer machine was used once or twice a week and had to be cleaned after each use. Maintenance workers occasionally serviced or repaired it. The mixer’s interior panels spin when in operation and it should be locked out for service or maintenance. In February 2016, an employee put his hand in the mixer and was injured.
The frank-o-matic was less frequently used than the other three machines. However, it was still operated at least once a month, and sometimes as often as once a week. It required cleaning after each use and sometimes had to be serviced or repaired. During these activities, the machine should be properly locked out. The Secretary showed that employees were required to service or maintain machines with multiple energy sources and were exposed to the hazard of unexpected energization.
3. Knowledge
Respondent was previously cited for a lack of LOTO procedures. The 2014 Citations included a violation of the same LOTO provision at issue here, 29 C.F.R. § 1910.147(c)(4)(i), for failing to have machine specific LOTO procedures. That 2014 violation was itself characterized as repeat because the 2012 Citations included a serious violation for not having machine specific energy control procedures for all required equipment. As noted above, Respondent accepted the 2014 violation of 29 C.F.R. § 1910.147(c)(4)(i), including its repeat characterization.
Mr. Wieder, the Operations Director, was aware of both prior violations of 29 C.F.R. § 1910.147(c)(4)(i). In particular, he admitted that he closely looked at the 2012 and the 2014 Citations. He understood that the LOTO standard requires machine specific procedures. The HR Manager handling safety, was similarly aware that the Respondent was cited for not having machine specific-LOTO procedures in 2014.
After the 2014 Citations, the Respondent took steps to develop a LOTO program. The safety consultant provided it with information about the control of hazardous energy. This information included a LOTO Plan the consultant described as a “first draft.” As the HR Manager acknowledges, the LOTO Plan provided in 2015 anticipated machine specific procedures being added to it. Further, in over half a dozen emails sent over its one-year contract, the consultant repeatedly reminded the HR Manager of the need for machine specific LOTO procedures. Despite these regular reminders, Respondent never developed the necessary machine specific procedures before the date alleged in the Citation.
Respondent’s actual knowledge that it was not in compliance with the cited standard satisfies the Secretary’s burden of proving the violation alleged in Citation 1, Item 1a.
4. Characterization
The Secretary alleges the violation is willful, or, in the alternative, repeat or serious.
A willful violation is one committed voluntarily with either an intentional disregard of, or plain indifference to the OSH Act’s requirements.
“[A]n employer’s prior history of violations, its awareness of the requirements of the standards, and its knowledge of the existence of violative conditions are all relevant considerations in determining whether a violation is willful in nature.”
The motive for failing to comply with the OSH Act “need not be evil or malicious” for the violation to be characterized as willful. As noted, Mr. Wieder, the Operations Director, and the HR Manager, were aware that the cited standard applied to the Respondent’s operations because of the 2014 Citations.
Those citations included a repeat violation of the same standard cited in connection with this Item 1a, 29 C.F.R. § 1910.147(c)(4)(i). Just like the present matter, the 2014 violation also concerned Respondent’s failure to develop machine specific LOTO procedures. Mr. Wieder executed the 2014 Settlement Agreements resolving this violation.
Even before the settlement of the 2014 Citations, Mr. Wieder knew the facility needed a LOTO program. In February 2012, when OSHA commenced an inspection of the facility, he was the CEO of MVP, the company that owned the facility. Although he was not working for MVP when the 2012 Citations were issued, he was aware of them and reviewed them when he returned to work at the facility for a subsequent owner in January 2013. He also reviewed and provided input on the agreement resolving the 2012 Citations. That agreement (the 2013 Settlement Agreement) acknowledged the Respondent’s acceptance of a violation of 29 C.F.R. § 1910.147(c)(4)(i), which is the requirement to have sufficiently developed, documented, and utilized procedures for the control of hazardous energy, as well as its acceptance of two additional serious violations of other provisions of the LOTO standard. So, in 2013, Respondent resolved the 2012 Citations, including the LOTO violations, by accepting responsibility and paying a penalty and, in the following year, it resolved additional LOTO violations by again accepting the violations and paying another penalty.
By the time of the most recent inspection, Respondent was well aware of the necessity for written procedures that specifically address how to de-energize machines with multiple energy sources.
Because OSHA did not demand further abatement after Respondent provided information to the agency as part of the 2014 Settlement Agreement, Respondent argues it could reasonably infer it was fully compliant with the LOTO standard. Such an inference is wholly inappropriate here as both the HR Manager and the Operations Director, Mr. Wieder, knew they needed to take additional steps to come into and remain in compliance. Indeed, one of the conditions of the 2014 Settlement Agreement was for Respondent to retain a consultant for at least one year to develop a written health and safety program.
Although Respondent complied with the requirement to retain a consultant to assist with coming into compliance and the development of a health and safety program, it failed to follow the consultant’s advice. The HR Manager overseeing safety, knew the general LOTO Plan lacked machine specific LOTO procedures. The document itself references the need for machine specific LOTO procedures. For example, it includes placeholders for “equipment specific LOTO procedures” and procedures for “New Equipment” to be added to the document. The HR Manager reviewed these blank pages on which equipment specific information was to be added, as well as the rest of the LOTO Plan.
Further, the consultant specifically informed Respondent multiple times about the need for machine specific procedures to be developed. For example, they told the HR Manager to have “machine LOTO procedures on file and up to date.” These written reminders, which the HR Manager acknowledges were supplemented with telephone conversations, preclude finding Respondent’s failure to develop the procedures on how to lockout and tagout machines with multiple energy sources was mere negligence.
In Dayton, like here, the employer was previously cited for violating the LOTO standard. After the citation, the employer failed to correct similar deficiencies at another location. The Commission determined the violation was willful because the employer either knew the second facility was in violation of the LOTO standard or it was unwilling to investigate its compliance. The D.C. Circuit disagreed that this was enough to characterize the employer as being plainly indifferent to safety. Here, the evidence of willfulness is stronger. First, this matter involves citations issued to the same employer for violations of the same standard at the same facility. The present matter is more like the situation in A.J. McNulty & Co., 283 F.3d 328 (D.C. Cir. 2002), than the one in Dayton. In A.J. McNulty, the employer had twice previously settled violations of the fall protection standard. When cited for a third time, the D.C. Circuit found the violation willful because the employer was aware of the regulation, failed to comply with it, and lacked a good faith belief it was in compliance.
Similarly, at the facility, supervisors had actual knowledge of past citations for this same LOTO standard as well as other violations related to LOTO. In particular, Mr. Wieder, the Operations Director, acknowledged his involvement with the resolution of two prior citations for the same sub-section of the LOTO standard. The HR Manager responsible for safety, was also aware of the 2014 LOTO violations. Knowledge from this past violation was supplemented with information from the safety consultant, who specifically, and repeatedly, reminded the Respondent it needed to have machine procedures “on file and up to date.”
Second, unlike Dayton, there is no need to guess whether Respondent knew machine specific procedures were required for this facility and that they did not have them. Respondent chose not to prepare machine specific procedures even after its consultant explained they were needed. It knew it needed a LOTO program which guided employees in how to control hazardous energy, knew its LOTO Plan was incomplete, and still failed to act until after an employee injury and another OSHA inspection. (“A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions”).
Third, in this matter, Respondent’s conscious actions were part of an on-going failure to prioritize safety. For example, the HR Manager acknowledged she had many responsibilities, particularly after Respondent chose not to replace its health and safety manager after he left in 2014. He had been a full-time employee tasked with oversight for environmental, health and safety. Almost all of his responsibilities were shifted to the HR Manager, who already was a full-time employee overseeing the human resources department. She had no formal safety and health training or experience. The only assistance she had at the facility was a part-time receptionist who was hired sometime in 2016. The facility had a high turnover of employees and difficulty retaining employees for some positions, such as those in the Kill Room, because of the unpleasant nature of the work. Preparing the documentation necessary to abate the 2014 Citations was not given “high priority.” In light of her human resources tasks, she did not have enough time to address getting the abatement documentation to OSHA. The safety consultant expressed her belief that the HR Manager had many responsibilities besides safety, and this complicated the effort to bring the facility into compliance. Indeed, the consultant was “not surprised” when the HR Manager called in 2016 and requested additional services, including the development of the machine specific procedures the consultant had repeatedly asked Respondent about.
Whether these actions alone would be sufficient to sustain a willful characterization, is an unnecessary question. There is no need to guess how Respondent would have behaved if it was aware of the requirement. Respondent knew it needed machine specific procedures and yet it failed to develop them.
Respondent knew of the requirement, was reminded of what was necessary to come into compliance, and still failed to act. See MJP, 19 BNA OSHC at 1648 (stating that relevant considerations include prior history of violations and awareness of standard’s requirements). The violation was willful.
B. Citation 1, Item 1b – LOTO Training – 29 C.F.R. § 1910.147(c)(7)(i)(A)
Citation 1, Item 1b alleges a violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), which requires training to ensure employees understand the purpose and function of the energy control program. Employees who lockout or tagout machines for maintenance are referred to as “authorized employees.” 29 C.F.R. § 1910.147(b). Such employees must receive training that includes the methods and means necessary for energy isolation and control. 29 C.F.R. § 1910.147(c)(7)(i)(A). The Secretary alleges that Respondent did not adequately train employees performing servicing and maintenance on the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic as of March 2, 2016.
1. Applicability and Violation
Besides having procedures in place to prevent unexpected energization, the LOTO standard also requires employers to train employees to ensure they understand and have sufficient skills to recognize applicable energy sources and isolate and control such energy as appropriate. 29 C.F.R. § 1910.147(c)(7)(i)(A). Of particular importance is the need to train the authorized employees who perform servicing or maintenance on energized machines. 29 C.F.R. §§ 1910.147(c)(7)(i)(A), 1910.147(b) (defining authorized employee). As discussed in connection with Citation 1, Item 1a, employees in the sanitation and maintenance departments routinely cleaned, serviced, and maintained machines with the potential to injure employees if they became energized during such activities. At least four of these machines had both electric and pneumatic sources of energy. While Respondent conducted “general awareness training,” the Secretary argues this training did not provide enough information for authorized employees to safely lockout machines with multiple energy sources. The Secretary emphasizes that because Respondent’s LOTO Plan lacked machine specific procedures, Respondent could not properly train employees on how to lockout all energy sources that powered the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic.
In response, the Respondent does not allege it or the safety consultant provided training for authorized employees. Nor would the record support such a finding. The HR Manager provided what Respondent refers to as “safety orientations.” In doing so, she relied on materials prepared by a former employee. She lacked formal safety and health training or experience and could not answer questions on the topics referenced in the training materials independently. After what Respondent describes as a “large turnover,” it brought the consultant back in to conduct a LOTO “general awareness” training in February 2016. The training was not designed for “authorized employees,” i.e., those employees who lockout or tagout machines to perform servicing or maintenance. It was a general overview rather than a training about how to lockout and tagout specific machinery with multiple energy sources. Necessarily, employees could not be trained appropriately if such procedures did not exist. The Secretary showed the cited standard applies and was violated.
2. Exposure
When an employee’s job assignment includes equipment servicing or maintenance, and it is reasonably predictable that the employee will encounter the hazard of unexpected energization while performing such work, LOTO training is required. Gen. Motors, 22 BNA OSHC at 1022. As discussed, employees routinely cleaned, serviced and repaired the four machines with air and pneumatic energy sources. Each time they were exposed to the possibility of the unexpected start-up of the machinery.
3. Knowledge
To establish knowledge, the Secretary does not need to show the employer was aware it was violating an OSHA standard. Showing the employer knew or should have known of the condition constituting the violation is sufficient.
Here, there is no dispute Respondent had actual knowledge of the need for LOTO training. In 2014, it was cited for violating this same provision of the LOTO standard. The HR Manager was aware of the 2014 Citations, including that one component was the failure to provide LOTO training. Respondent also resolved the 2012 Citations, which also included a violation of this same LOTO training standard, 29 C.F.R. § 1910.147(c)(7)(i). (Ex. C-54 at 8.) Mr. Wieder, the Operations Director, reviewed both the citations themselves as well as the 2013 Settlement Agreement resolving the violations.
At the time of the inspection, Respondent was aware of both the standard and its applicability to its operations. The HR Manager knew the scope of the safety orientation she conducted, and that it lacked machine specific LOTO procedures. Even if Respondent lacked actual knowledge about the scope of LSCI’s training, it could recognize it was not possible for the training to address how to lockout machines with multiple energy sources. Further, a simple inquiry of LSCI would have confirmed that the training was not designed for authorized employees who needed to perform lockouts.
This establishes knowledge of the violative condition.
4. Characterization
The Secretary argues that the violation is willful, or, in the alternative repeat or serious. The undersigned finds that the violation is repeat. Respondent had actual knowledge that authorized employees needed specific training in how to de-energize machines. It knew the content of the safety orientations the HR Manager conducted and could have learned that the consultant’s February 2016 training was not adequate for authorized employees. However, a willful characterization requires more than establishing knowledge of the violative condition.
While this violation may not be willful, it is a repeat violation. As discussed, Respondent was previously cited for violating this same sub-section of the LOTO standard (29 C.F.R. § 1910.147(c)(7)(i)(A)) at this facility less than two years before. Like the instant matter, this prior violation concerned a failure to property train about energy hazards employees may encounter when repairing and serving production equipment.
In resolving that citation, Respondent accepted the violation as issued. Respondent fails to rebut the Secretary’s evidence that the 2014 violation was substantially similar to the present violation.
C. Citation 1, Item 1c –LOTO Inspections- 29 C.F.R. § 1910.147(c)(6)(i)
1. Applicability, Violation, and Exposure
Citation 1, Item 1c concerns the requirement to conduct periodic inspections of energy control procedures. At least annually, employers must inspect their energy control procedures to ensure they comply with the LOTO standard and that employees are following the procedures. 29 C.F.R. § 1910.147(c)(6)(i). The employer must complete a written certification indicating the inspections have occurred. 29 C.F.R. § 1910.147(c)(6)(ii).
As explained above, there is no dispute that Respondent needed a compliant LOTO program because employees cleaning, maintaining, or servicing energized equipment could encounter the hazard of unexpected energization during such activities.
The Secretary alleges that Respondent failed to conduct periodic inspections of its LOTO procedures. Respondent concedes it did not inspect its energy control procedures. It argues the cited standard only requires an “annual” review, and so no inspection was necessary because the latest iteration of its LOTO Plan was less than a year old.
Respondent misconstrues the cited standard as requiring only a review of the written procedures. Besides inspecting written procedures, employers must also assess whether employees are appropriately following a compliant LOTO procedure when they lockout or tagout machinery. 29 C.F.R. § 1910.147(c)(6)(i). For authorized employees, such as those who service or maintain energized equipment, the assessment must include a review with each authorized employee of his or her responsibilities under the company’s lockout procedure. 29 C.F.R. § 1910.147(c)(6)(i)(C).
Even accepting that the Respondent reviewed the written LOTO Plan in October 2015, there is no evidence it conducted the type of inspection the cited standard requires for over a year before the date referenced in the Citation. Respondent does not argue it had no LOTO procedures before the consultant delivered the written LOTO Plan in October 2015. Nor does it allege its procedures changed when the consultant delivered the LOTO Plan in October 2015. Indeed, its Maintenance Manager certified he was conducting inspections on certain machines from January 10, 2014, through January 20, 2015. (Ex. C-19.) After that date, there is no evidence of any inspections until OSHA commenced its investigation in March 2016.
Further, the inspections that did occur were incomplete. On January 10, 2014, the maintenance manager indicated he reviewed the LOTO procedures for the gizzard machine with one employee. There is no information about a similar review with the rest of the authorized employees. Nor is there evidence of any inspections of the LOTO procedures for the gizzard machine in 2015 or 2016. Moreover, there is no evidence of any inspections for the chamber machine, the mixer, or the frank-o-matic at any time. It appears that rather than reviewing all the procedures on all the machines with every employee tasked with maintaining or cleaning the machines, in 2014, the maintenance manager inspected one employee locking out one type of machine each month. David Olah, the Area Director, explained that because the safety consultant ultimately concluded over forty machines needed machine specific procedures, the one machine/one employee a month approach would mean it would be years before Respondent inspected the procedures the maintenance and sanitation employees followed when locking out all the different types of production machinery. Thus, even crediting the evidence of inspections in 2014, there is no evidence it covered all the machines or that any inspections occurred in the year before the date alleged in the Citation.
The Secretary showed Respondent had to inspect its employees’ understanding of the LOTO procedures and failed to do so for at least one year. The standard was violated and employees cleaning, maintaining, or servicing energized equipment were exposed to the hazard of injuries from unexpected energizations.
2. Knowledge
Respondent makes no claim that it thought the inspections were being done. Rather, it contends they were unnecessary as of the date alleged in the Citation. As found above, inspections were necessary under the cited standard. As Respondent had actual knowledge of this requirement, it has no basis to claim it did not know the inspections were not being done.
Respondent was previously cited for violating this same requirement in 2014. Both the Operations Director and the HR Manager were aware of the prior LOTO violations. Mr. Wieder, Respondent’s Operations Director, accepted this violation in the 2014 Settlement Agreement.
In addition, the safety consultant provided OSHA with thirteen documents each titled “Lockout/Tagout Periodic Inspection Form.” The forms include the name of the machine, who conducted the inspection, the authorized employee with whom the energy control procedures were being reviewed, and the date.
Above the signature is a certification: “I hereby certify the periodic inspection for compliance with lockout/tagout standards on this machine/equipment have been satisfactory completed with the employee identified above.”
The safety consultant provided Respondent with the forms and reminded the HR Manager, who had been delegated the responsibility for safety, to be sure the inspections occurred. Thus, the forms themselves reference the requirement to inspect LOTO procedures and Respondent’s consultant reminded the HR Manager of the need for such inspections. Respondent knew of the cited standard and does not dispute that it knew no inspections occurred between January 20, 2015 and the start of the March 2016 inspection.
3. Characterization
The Secretary argues the violation is willful, or, in the alternative repeat or serious. Respondent had actual knowledge of the need for LOTO inspections. It was previously cited for violating this same subpart of the LOTO standard (29 C.F.R. § 1910.147(c)(6)(i)) for failing to conduct periodic inspections of its LOTO procedures in 2014.
After accepting this serious violation in 2014, Respondent retained the safety consultant for assistance with learning how to comply with this requirement. The safety consultant provided Respondent with a form checklist to guide supervisors in conducting inspections. The checklist guides a supervisor through the requirements to comply with the inspection called for by the cited standard. The Maintenance Manager signed several inspection forms certifying he reviewed the LOTO procedures with certain employees for a few machines. However, these efforts quickly subsided and there is no evidence of any inspections for over a year before the date alleged in the instant Citation.
Despite having numerous machines, some with multiple energy sources, there is no evidence of a single inspection of the LOTO procedures any employee used on any machine for over a year. The safety consultant repeatedly reminded the HR Manager of the ongoing obligation to continue to conduct the inspections. In an email on September 29, 2015, near the end of the one-year contract, the consultant pointedly explained to the HR Manager that failing to comply with the inspection and other requirements would place the company at risk for repeat or willful violations. Still, Respondent failed to heed the warning and did not resume the inspections.
As discussed above in connection with the characterization of Citation 1, Item 1a, Respondent failed to sufficiently prioritize safety. The prior violation and provisions of its safety program gave Respondent a heightened awareness of the inspection requirement. Respondent knew of the requirement and its applicability to its operations. The record lacks any explanation for why it ceased conducting the required inspections after being made aware of the requirement as a result of the prior citation and the consultant. Its conscious disregard of a known requirement is willful.
D. Penalty for Citation 1, Items 1a, 1b, and 1c
Before turning to the penalty to be assessed, the undersigned notes that Respondent does not contend that any of the alleged violations are duplicative. Such an argument would fail because the abatement one of the violations alleged in Citation 1 would not, without further action, bring Respondent into compliance with the other requirements of 29 C.F.R. § 1910.147(c).
Item 1a relates to the requirement to have appropriate LOTO procedures, Item 1b concerns the requirement to appropriately train authorized employees about energy control procedures, and Item 1c is about Respondent’s failure to review, or inspect, employee’s understanding of the company’s LOTO procedures.
The abatement necessary for each of these violations is distinct. Having compliant written procedures, would not abate a failure to train about those procedures. Nor does having compliant written procedures satisfy the requirement to annually inspect whether authorized employees understand their role in conducting lockouts.
Although the violations are not duplicative, the Secretary has grouped them for penalty purposes and proposes a single penalty of $124,709 for Items 1a, 1b, and 1c. The undersigned finds it appropriate to group these three violations of the LOTO standard for penalty purposes.
When assessing penalties, the OSH Act requires consideration of the violation’s gravity, Respondent’s history of compliance, its size, and any good faith it has shown. The violation’s gravity is typically given the most weight.
These violations could cause contusions, lacerations, and broken bones. Employees routinely cleaned and serviced these machines, some on a daily basis, which increases the likelihood of an injury from an improperly locked out machine. Between fourteen and eighteen employees were responsible for cleaning machinery and another four to six had repair and maintenance responsibilities. Violations of the LOTO standard are generally considered to be of higher gravity because of the likely injury resulting from such violations.
Respondent is a large employer with a history of violations. At the time of inspection, it employed approximately 270 to 280 employees. In terms of its compliance history, as discussed, a little over a year before the issuance of the present Citations, Respondent was cited for violating the LOTO standard. The 2014 Citation included:
(1) a repeat violation of 29 C.F.R. § 1910.147(c)(4)(i), which is the same standard cited in this matter as part of Item 1a;
(2) a serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), which is the same standard cited as in Item 1b; and
(3) a serious violation of 29 C.F.R. § 1910.147(c)(6)(i), which is the same standard cited in Item 1c. (Ex. C-39.)
The 2014 Citation also included a violation of another provision of the LOTO standard as well as violations of several other standards. Later that same year Respondent received two more citations on December 25, 2014. Although these other citations did not include violations of the LOTO standard, they counsel against any penalty reduction for history.
Finally, as to good faith, the violations of 29 C.F.R. §§ 1910.147(c)(4)(i), 1910.147(c)(6)(i) were willful and the violation of 29 C.F.R. § 1910.147(c)(7)(i)(A) was repeat. Respondent did make some effort at training workers and taking steps to address the deficiencies in its LOTO program. However, these meager efforts came after multiple citations and still fell well short of what the LOTO standard requires. No reduction for good faith is appropriate. “The purpose of a penalty is to achieve a safe workplace, and penalty assessments, if they are not to become simply another cost of doing business, are keyed to the amount an employer
appears to require before it will comply.” Respondent has reached two prior settlements with OSHA for LOTO violations. Still, it failed to come into compliance with applicable standards which protect against serious hazards in its workplace. A penalty of $124,709 is assessed for Citation 1, Items 1a, 1b, and 1c.
II. Citation 2, Item 1, Serious Violation of 29 C.F.R. § 1910.23(a)(8) – Floor Holes
Not reviewed – see the original document
III. Citation 2, Item 3b- Serious Violation of 29 C.F.R. § 1910.37(b)(5) – Exit Signage
The facility consists of several different rooms and areas. In the Kill Room, employees hand live animals to rabbis for slaughtering. Adjacent to the Kill Room there are two Picking Rooms, where machines remove the feathers from the animals (in other words, the “product”). After the Picking Rooms, the product enters the Evisceration Room where certain parts are removed, and the product is inspected. The product moves to the Process Room for salting and chilling. Some product is also sent to the Grind Room for additional processing.
Citation 2, Item 3b relates to alleged violations of 29 C.F.R. § 1910.37(b), for insufficient exit markings. If a door does not lead to an exit, it must be marked “not an exit” or otherwise explain what is behind the door. 29 C.F.R. § 1910.37(b)(5). In addition, if the way to exit is not immediately apparent, signs must be posted along the exit access route to indicate both the direction of travel and the nearest exit. 29 C.F.R. § 1910.37(b)(4). The “line-of-sight to an exit must be clearly visible at all times.”
A. Instances (a) and (e) – Violations of 29 C.F.R. § 1910.37(b)(5)
1. Instance (a)
Instance (a) alleges that the door connecting the Evisceration Room to Picking Room 2 should have indicated it was not an exit. There is no debate the door lacked a sign identifying it as leading to Picking Room 2 or otherwise indicate the door did not lead to an exit.
Besides this door, the room had three other doors. One of these other doors, which was located on a different wall, had an exit sign above it. Respondent alleges that the OSHA compliance officer (CO) investigating the facility purposely framed the photograph of the area to exclude the exit sign. This claim is meritless. First, the exit sign is visible in one of the CO’s photographs, just not all of them. Moreover, the cited standard concerns whether doors along an exit route are clearly marked to indicate they are not an exit. Thus, the existence of some exit signage does not mean there has been no violation of 29 C.F.R. § 1910.37(b)(5), which is concerned with doors not leading to exits.
This is not to say that the presence of the exit sign is irrelevant. Its presence shows that the door in question was along an exit route. Someone seeking to quickly exit along this route might come to this door and think it was an exit when it just leads to another interior room. For this reason, the standard requires the doorway itself to be marked. The standard applies and was violated.
As for exposure, between fifty and sixty employees worked in this room every day. The amount of equipment and other space limitations made the need for clear exit routes critical.
Turning to knowledge, the Superintendent was familiar with this area of the facility. The condition was in plain view and the lack of signage was readily apparent. The Secretary met his burden.
2. Instance (e)
Instance (e) relates to a single door from the process room. At one end of the process room, there is a single door close to a set of double doors. Above the double doors, there is an illuminated exit sign. Adjacent to the double doors, a single door connected the process room to what was referred to as the ammonia or cooler room. This adjacent room contained the compressor for the cooling system and did not lead to an exit. There is no signage on the single door indicating either what was behind it or explaining it was not an exit.
The Area Director explained that an employee attempting to exit the area could be confused as to whether it could use the single door, as opposed to the adjacent double doors, to exit the building.
Employees worked in this area and thus were exposed to the hazard. The Superintendent was familiar with this area and Respondent could have discovered the lack of signage with reasonable diligence. The Secretary established the violation.
B. Instance (d)- Violation of 29 C.F.R. § 1910.37(b)(4)
Instance (d) concerns a set of double doors from the packing area to the Evisceration Room. These doors were not labeled. Unlike the other Instances, which involved doors that did not lead to an exit, this allegation involved doors leading to a possible exit route. So, at the hearing, the Secretary moved to amend Instance (d) to allege, in the alternative, a violation of section (b)(4) of 29 C.F.R. § 1910.37, as opposed to section (b)(5) as was initially alleged in the Citation. Respondent did not object to the amendment and the request was granted.
Section (b)(4) provides:
If the direction of travel to the exit or exit discharge is not immediately apparent, signs must be posted along the exit access indicating the direction of travel to the nearest exit and exit discharge. Additionally, the line-of-sight to an exit must be clearly visible at all times. 29 C.F.R. § 1910.37(b)(4).
The Superintendent indicated that the double doors shown in Ex. C-13 were one possible way to exit the building. Neither he nor any other witness explained whether the double doors depicted in Exhibit C-13 represented the “nearest exit.” The Superintendent did explain, however, that the lit exit signs in the room made it immediately apparent how to exit this area. This testimony was not sufficiently refuted.
The Secretary failed to show that the double doors needed to be labeled. Because they were a possible exit, the lack of labeling did not violate section (b)(5). Nor did the Secretary establish that they were the nearest way to exit the building or that the line of sight to the nearest exit was not clearly visible in violation of section (b)(4). Instance (d) is vacated.
C. Characterization and Penalty for Citation 2, Item 3(b), Instances (a) and (e)
Respondent does not challenge the characterization as serious. The record supports this characterization. The Area Director explained that marking doorways is important because a failure to do so harms safe egress in the event of an emergency. If an employee cannot quickly determine how to leave, they may enter a doorway that does not lead to an exit and become trapped. Such a hazard is appropriately characterized as serious.
Initially, in the Citation, the Secretary proposed a single grouped penalty for of $5,888 for Citation 2, Items 3(a) and 3(b). The Secretary subsequently withdrew Item 3(a), and two of the five Instances that were part of Item 3(b). This left Instances (a), (d), and (e) of Item 3(b). As discussed, only Instances (a) and (e) are affirmed.
The Secretary acknowledges the violation’s gravity is not particularly high. Respondent had some exit signage and directional markings. However, it also had a high turnover of its large workforce, which made appropriate exit signage important in a large multi-room facility. New employees could be unfamiliar with which one of several doors connected to an exit or a dead end. As for good faith, Respondent lacked a robust safety program and a further reduction for this factor is not appropriate. Likewise, Respondent has a history of violations and is a large company, so these factors do not warrant a further reduction in the penalty.
Given the withdrawals and the vacation of Instance (d), a lower penalty than what the Secretary proposes is appropriate. A $2,000 penalty is assessed for Citation 2, Item 3(b), Instances (a) and (e).
IV. Violations of the Occupational Noise Exposure Standard (29 C.F.R. § 1910.95)
Not reviewed – see the original document
V. Citation 2, Item 7 – 29 C.F.R. § 1910.132(a) – PPE
Respondent does not dispute that PPE was necessary and that it needed to provide it to employees. When PPE is necessary, it must be “used and maintained in a sanitary and reliable condition.” 29 C.F.R. § 1910.132(a). The Secretary alleges two Instances of violations of this standard.
A. Instance (a)
Employees were provided with PPE and were using it at the facility. The PPE included reusable smocks as well as disposable aprons and plastic sleeves. The Secretary argues that this PPE was not being maintained in a sanitary condition. Employees were not cleaning or removing disposable PPE before entering the cafeteria and no rules required this. Nor was there a system to ensure new PPE would be put on after employees finished in the cafeteria.
Employees working in the Kill Room had the potential to be exposed to animal blood, fecal matter, and bacteria, such as Campylobacter. At the time of the inspection, there was no monitor to ensure sleeves, gloves, hairnets, and aprons would be disposed of before employees entered the cafeteria. Likewise, although employees wore protective smocks there was no system to ensure that these were left outside of the cafeteria or cleaned before an employee entered or exited the cafeteria. During the inspection, employees were photographed in the cafeteria still wearing PPE including hairnets, plastic sleeves, and earmuffs. The HR Manager acknowledged being aware of employees sometimes entering the cafeteria without removing PPE.
Respondent argues its Superintendent was not aware of “someone suffering an illness from exposure in the plant.” Proof of an illness or injury is unnecessary to prove a violation of 29 C.F.R. § 1910.132(a). The Secretary satisfied his burden by showing a reasonable employer would know there was a need for PPE and also knew, or was capable of knowing, it was not being “used and maintained in a sanitary and reliable condition.” 29 C.F.R. § 1910.132(a). Here, Respondent does not deny PPE was necessary and knew employees wore PPE into the cafeteria. Nonetheless, it failed to take corrective action as of the date alleged in the Citation. The Secretary met his burden and the violation is affirmed.
B. Instance (b)
While Instance (a) concerned whether the PPE was maintained in a sanitary condition, Instance (b) concerns the reliability of the PPE employees used in the Kill Room, Picking Line, and Evisceration Room. The Citation alleges:
employees involved with poultry killing and processing were not provided with, and did not maintain or use personal protective equipment [in] a reliable and intact condition. … These items were not resilient enough to withstand the work environment and to protect employees and their clothing.
Exhibit C-17 shows an employee’s exposed skin visible through the torn PPE in the Kill Room. Respondent argues it was the “employee’s choice” as to how they wore the PPE provided to them.
The cited standard does not permit such discretion on the part of employees. When PPE is necessary, 29 C.F.R. § 1910.132(a) requires the employer to ensure it is “used, and maintained in a sanitary and reliable condition.” Respondent does not claim employee misconduct led to the torn PPE. It does not allege it had a rule against purposely tearing PPE or that it instructed employees of the risks associated with doing so. According to the Superintendent, the Respondent provided items that employees could use to avoid having exposed skin, but there was not a rule for their skin to be covered. Respondent did not instruct employees to replace PPE if it stopped serving as a reliable protective barrier. It allowed them to wear ripped PPE.
The standard requires more than just the provision of PPE, employers must also ensure it is maintained in a sanitary and reliable condition.
As stated, it is not disputed that employees working in these areas were exposed to hazardous conditions and that Respondent was aware of this. The Superintendent knew employees sometimes wore torn PPE. Employees are required to take animals from containers and prepare them to be killed. The live chickens have sharp claws and beaks that can scratch open exposed skin. The HR Manager was aware that this work potentially exposed employees to animal blood and fecal matter. Exposed skin could become infected with animal feces or bacteria, and such infections could lead to serious illness.
Respondent argues that its Superintendent was unaware of anyone suffering illness as a result of being exposed to something at its facility. However, the HR Manager knew of one employee who suffered from the symptoms consistent with exposure to the Campylobacter bacteria. Even if that worker’s illness was unrelated to bacterial exposure, the Secretary still showed employees were exposed to hazardous conditions if their PPE was not maintained in a sanitary and reliable manner.
C. Characterization and Penalty
The Secretary argues that the violation was appropriately characterized as serious and proposes a penalty of $11,758 for both Instances. While Respondent disputes the merits of Citation 2, Item 7, it does not raise any specific argument as to the serious characterization or the penalty amount. The Area Director explained the hazards of the workplace and how employees could be seriously injured from inappropriate PPE. Among other risks, exposure to bacteria in the workplace could cause infection serious enough to require hospitalization. The record supports the serious characterization.
In terms of the penalty amount, the Secretary argues that the violation was of moderate gravity. As noted above, the conditions at the facility created the possibility of exposure to cuts from handling the animals and exposed skin could become infected, including by campylobacter. While Respondent provided PPE, the Secretary showed it did not comply with the cited standard’s requirement to ensure its use and maintenance in a reliable and sanitary condition. Because work in the Kill Room involved animal feces, blood, and an odor, Respondent had some difficulty retaining employees in those positions. So, it rotated employees in and out of the Kill Room. Thus, a number of different employees were exposed to hazards from the failure to comply with the cited standard. Respondent has a history of violations, warranting an increase in the penalty amount. And, as discussed with the other violations, no reduction for size is appropriate. So, the Secretary’s proposed penalty of $11,758 is appropriate and is assessed for Citation 2, Item 7, Instances (a) and (b).
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:
1. Citation 1,
a. Item 1a, alleging a willful, repeat or serious violation of 29 C.F.R. § 1910.147(c)(4)(i), is AFFIRMED as Willful;
b. Item 1b, alleging a willful, repeat or serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A) is AFFIRMED as Repeat,
c. Item 1c, alleging a willful, repeat or serious violation of 29 C.F.R. § 1910.147(c)(6)(i) is AFFIRMED as Willful,
and a single penalty of $124,709 is ASSESSED.
2. Citation 2, Item 1, alleging a serious violation of 29 C.F.R. § 1910.23(a)(8) is AFFIRMED as Serious and a penalty of $5,880 is ASSESSED.
3. Instances (a) and (e) of Citation 2, Item 3b, each alleging serious violations of 29 C.F.R. § 1910.37(b)(5) are AFFIRMED as Serious and a penalty of $2,000 is ASSESSED.
4. Instance (d) of Citation 2, Item 3(b), alleging a serious violation of 29 C.F.R. § 1910.37(b)(5), or in the alternative 29 C.F.R. § 1910.37(b)(4), is VACATED.
5. Citation 2, Item 4, alleging a serious violation of 29 C.F.R. § 1910.95(b)(1), is AFFIRMED as Serious and a penalty of $12,471 is ASSESSED.
6. Citation 2,
a. Item 5a, alleging a serious violation of 29 C.F.R. § 1910.95(g)(7)(i), is AFFIRMED as Serious,
b. Item 5b, alleging a serious violation of 29 C.F.R. § 1910.95(g)(8)(ii)(B), is AFFIRMED as Serious,
c. Item 5c, alleging a serious violation of 29 C.F.R. § 1910.95(i)(3), is AFFIRMED as Serious, and a single penalty of $12,471 is ASSESSED.
7. Citation 2, Item 7, alleging a serious violation of 29 C.F.R. § 1910.132(a), is AFFIRMED as Serious, and a penalty of $11,758 is ASSESSED.
8. Citation 3, Item 2, alleging an other-than-serious violation of 29 C.F.R. § 1910.95(m)(2)(ii)(E), is AFFIRMED as Other-Than-Serious, and no penalty is assessed.
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