I am sharing this OSHRC decision to demonstrate how a citation can be vacated with PROPER supervision and training on machine hazards, guarding, and LOTO. In this case, an employee opened a guard, reached into the machine to clean/clear breading and the machine started – grabbed his smock and caused serious injuries to his right arm and hand. The business won BOTH times (in front of the ALJ and the full commission). Although not official stated, it was almost like an “employee misconduct” defense; but the ALJ and the commission had a VERY interesting way of applying the criteria that OSHA must be in order to issue a citation, which I think many of you will find interesting. The ALJ vacated the citation based on what she found to be a LACK OF EXPOSURE, and on review, both parties frame their arguments in terms of exposure.
In September 2016, an employee sustained serious injuries to his right arm and hand while working on a breading machine at the company’s poultry processing facility. Following the incident, OSHA conducted an inspection and issued a one-item serious citation alleging a violation of 29 C.F.R. § 1910.212(a)(1) for failing to guard the “sprocket and chain system” on the breading machine.
Following a hearing, Judge Sharon D. Calhoun VACATED the citation for lack of employee exposure to the alleged violative condition. For the reasons discussed below, we also VACATE the citation.
The question was whether the Secretary established that the grate covering the hopper was required to protect employees from “hazards such as those created by [the Accufeeder’s] point of operation, ingoing nip points, rotating parts, [or] flying chips and sparks.” 29 C.F.R § 1910.212(a)(1). Therefore, the occurrence of the operator’s injury here does not, by itself, establish that the facility failed to comply with § 1910.212(a)(1).
BACKGROUND
Production Line 53 at the poultry processing facility is equipped with an AccuFeeder breading machine that is used to bread chicken wings. Employees operate the AccuFeeder by pouring bags of flour through a metal grate covering the machine’s hopper. The grate is equipped with a hinge on one side and a latch on the other, allowing it to be lifted up if the screw holding the latch down is removed. Inside the hopper—26 inches from its top and 24 inches below the metal grate—are mechanical paddles that activate and run when a sensor detects that more flour is needed. The operator typically fills the AccuFeeder with about four to five 50-pound bags of flour every ten to fifteen-minute cycle over the course of a shift.
The processing facility runs three shifts— two in the day and one overnight. Employees working the daytime shifts process the poultry while employees on the overnight shift thoroughly clean and sanitize the entire facility, including the inside and outside of the AccuFeeder. On the day of the accident, Employee #1 was operating the AccuFeeder, a task he typically performed on the one to several times a month the machine is used. While the machine was running, Employee #1 lifted the hopper’s metal grate, which was unlatched at the time, and reached inside to clean flour out of the hopper. The paddles at the bottom of the hopper activated and caught his smock, pulling his arm and hand into the mechanism.
DISCUSSION
The Secretary alleges the facility violated 29 C.F.R. § 1910.212(a)(1) because “employees were removing the … AccuFeeder grate to knock down breading that was resting along the sides of the machine exposing them to the unguarded sprocket and chain system.”
Section 1910.212(a)(1), in relevant part, states:
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.
To establish a violation, the Secretary must prove
- that the cited standard applies,
- there was a failure to comply with the standard,
- employees were exposed to the violative condition, and
- the employer knew or could have known of the violative condition with the exercise of reasonable diligence.
Here, the judge addressed the elements of noncompliance and exposure together, noting that the two elements “are merged in cases alleging a violation of § 1910.212(a)(1).” The judge then vacated the citation based on what she found to be a lack of exposure, and on review, both parties frame their arguments in terms of exposure.
We agree with the judge’s decision to vacate the citation but find that the analysis is more accurately considered under the element of noncompliance. Compliance with § 1910.212(a)(1) is framed by the fact that it is a PERFORMANCE STANDARD, which means “it states the result required …, rather than specifying that a particular type of guard must be used.”
Performance standards “require an employer to identify the hazards peculiar to its own workplace and determine the steps necessary to abate them.” The noncompliance question here, therefore, is whether the Secretary established that the grate covering the hopper was required to protect employees from “hazards such as those created by [the Accufeeder’s] point of operation, ingoing nip points, rotating parts, [or] flying chips and sparks.” 29 C.F.R § 1910.212(a)(1).
To make this determination, we consider whether, given “the manner in which the machine functions and how it is operated by the employees,” they are exposed to a hazard. In other words, for the Secretary to establish the exposure to a hazard required for noncompliance, he “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.” Therefore, the occurrence of the operator’s injury here does not, by itself, establish that the facility failed to comply with § 1910.212(a)(1). Indeed, noncompliance in this case hinges on whether the operator’s actions were reasonably predictable given the machine’s normal operation.
As the judge found, “[t]here is no dispute … that flour adheres to the interior of the [Accufeeder’s] hopper — that is why the sanitation team cleans it after the second shift every night.” What is in dispute “is whether the hopper needs to be manually cleaned in addition to the automated clean out at the end of the second shift.” The judge concluded manual cleaning was not required and therefore “employees are not,” in the regular course of operation, “required to place their hands below the plane of the metal grate.” On review, the Secretary disputes this finding, pointing primarily to the testimony of Employee #1, the injured operator, that he was instructed to place his hands into the hopper to remove caked flour.
Having reviewed Employee #1’s testimony, as well as that of the team leader of Line 53 and a batch operator, we agree with the judge that manual cleaning of the hopper was not required during the Accufeeder’s normal operation. Employee #1 was the only witness to testify that manual cleaning was required and, as the judge found, his testimony was internally inconsistent on this point. Indeed, he first testified that he “was taught” by the team leader to open the grate and “stick [his] hand in,” but then testified that he was “never [told to] stick [his] hand in the grate[.]” In addition, in a signed statement to the OSHA compliance officer, he stated that “nobody” “taught” him to place his hand inside the hopper to clean out flour. Based on these inconsistencies, as well the judge’s demeanor-based credibility finding that Employee #1 was “nervous and ill-at-ease” while testifying, we decline to credit his testimony regarding the operation of the AccuFeeder.
Moreover, all of the other employees testified to the contrary. The Team leader denied training Employee #1 to clean flour from inside the hopper with his hand and testified that to do so was a violation of the company’s safety rules. He also stated that on the one occasion when he observed Employee #1 committing this violation, he “told him not to do it anymore.” And, although the judge found the team lead, like Employee #1, to be “nervous and ill-at-ease,” she credited the majority of his testimony over that of Employee #1 to the extent it was corroborated by other witnesses. Specifically, the judge noted that the batch operator — who she found “credible based on his confident, straightforward demeanor and his logically consistent testimony”— corroborated the team leader’s testimony that he did not train Employee #1 to reach into the hopper and that he had warned Employee #1 not to do so. The team leader explained that he “saw [Employee #1] that one time and I told him don’t do that, you know, it’s not safe to do that. And that’s the only time I actually saw him myself, but he was witnessed by a couple of other – my other people, XXXXXXX and XXXXXXXX.” The team leader also testified that if flour was present on the inside of the hopper, it could be knocked off by striking the outside of the machine.
The Batch operator, who the judge credited, testified that he personally told Employee #1 not to reach into the hopper, as did another operator, XXXXXXXX. Supervisor XXXXXXX, who the judge found credible based on his demeanor, also testified that there was never an operational problem with flour caking on the inside of the hopper and the machine’s self-cleaning feature took care of any remaining flour left at the end of the second shift. Numerous other witnesses, including the team leader, EHS specialist, and former shift manager, testified that when Employee #1 was injured, he admitted to them that he knew he should not have placed his hand inside the hopper. Also, testimony from EHS Specialist, which was confirmed by a training record submitted into evidence by the company, shows that new employees were instructed during orientation not to reach into the moving parts of a machine.
Finally, while Employee #1 claims that he intentionally opened the grate and reached into the hopper every time he operated the AccuFeeder, his personal practice — which was inconsistent with all the other operators who testified — does not establish the machine was normally operated in a way that contemplated or anticipated such entry. On the contrary, the record establishes that Employee #1’s act of reaching into the moving parts of the hopper — which the parties do not dispute are located 24 inches below the grate — was the intentional, idiosyncratic behavior of only one employee. No other employees regularly did this and, as discussed above, Employee #1 was warned by the team leader and his fellow operators not to reach into the hopper when he was observed doing so.
The safety training includes the following relevant instructions, some of which were presented in a PowerPoint slideshow (all forms of emphasis in the original):
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Do not reach into any type of machinery without first shutting the machinery off. NEVER PLACE YOUR HAND OR ANY PART OF YOUR BODY IN OR ON MOVING EQUIPMENT. MACHINE GUARDING Causes and controls for preventing pinch point injuries General Info A Pinch Point is produced when 2 objects come together and there is a possibility that a person could be caught or injured when coming in contact with that area. Pinch points commonly impact fingers/hands, but can impact any area of the body. The injury resulting from a pinch point could be as minor as a blister or as severe as amputation or death. Conveyors, gears, loaders, compactors and other moving equipment are examples of machinery with pinch points. Common Causes of Injuries from Pinch Points Reaching into moving equipment and machinery. |
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NEVER PLACE YOUR HAND OR ANY PART OF YOUR BODY IN MOVING MACHINERY. NEVER REMOVE ANY MACHINE GUARD, COVER OR SCREEN UNLESS AUTHORIZED TO DO SO AND THE EQUIPMENT HAS BEEN LOCKED OUT. Never remove any machine guard cover or screen. … All guards, covers, screen barriers, etc., must be in place before any machine is started. Never place your hand or any part of your body in moving machinery. AMPUTATIONS
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ANALYSIS
When asked why he did not report Employee #1’s repeated manual cleanings of the hopper to management, the Batch Operator testified, “When I [saw] [Employee #1] and I had the discussion with him, he quit doing it. He stopped. And I was explaining to him, you know, you can get your hand caught. I mean you can get hurt… So there was no need to go to safety because I kind of felt like he, you know, the way I was explaining it to him that he understood.”
Based on the record, the Court determines the Team Leader did not report the safety infractions of Employee #1 or Employee #2 to his supervisors. The Court finds it likely the Line 53 employees attempted to handle safety violations among themselves and chose not to involve management, perhaps to avoid one of their co-workers receiving a three-day suspension.
Item 1: Alleged Serious Violation of § 1910.212(a)(1)
The Citation alleges:
On or about 1/18/17—Line 53, Further Processing Plant, Superflex Breading System, employees were removing the Nothum AccuFeeder grate to knock down breading that was resting along the sides of the machine exposing them to the unguarded sprocket and chain system.
Section 1910.212(a)(1) provides:
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 ‘s Burden of Proof
To establish a violation, the Secretary must show by a preponderance of the evidence that:
(1) the cited standard applies;
(2) there was a failure to comply with the cited standard;
(3) employees had access to the violative condition; and
(4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence.
Failure to Comply with the Cited Standard/Access to the Violative Condition
Although noncompliance with a standard and employee access to a violative condition are two separate elements of the Secretary’s burden of proof, they are merged in cases alleging a violation of § 1910.212(a)(1). “In order to establish a violation of section 1910.212(a)(1), the Secretary must first prove the existence of a hazard.”
“To prove an employer failed to comply with § 1910.212(a)(1), the Secretary ‘must show that employees are in fact exposed to a hazard as a result of the manner in which the machine functions and is operated.’ The mere fact that it is not impossible for an employee to come into contact with the moving parts of a particular machine does not, by itself, prove that the employee is exposed to a hazard.” Thus, it is not necessary to guard a machine unless employees are exposed to hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.
The company argues the AccuFeeder hopper was adequately guarded because the metal grate was affixed to the hopper. Assuming a guard was required on the hopper, the Court disagrees. It is undisputed the bolt on the latch was not tightened and was easily moved so the metal grate could be lifted. A guard is not effective if it is easily bypassed by an employee. The Commission, in discussing an employer’s implementation of a two-hand tripping device as a “secondary safeguarding measure,” stated:
Respondent asserts that an employee would only jog a machine with each of his hands on a separate button. Respondent thus appears to contend that its machines were equipped with an acceptable form of guarding: a two-hand tripping device. … However, such a guarding method is only acceptable if installed in such a way that it cannot be easily circumvented by employees. … The record does not support the assertion in Respondent’s brief that employees in fact used both hands to operate the controls, nor can we conclude that the controls were arranged so as to require two-hand operation. Thus, the existence of the dual buttons does not alter our conclusion that the Respondent violated the standard.
Here, Employee #1 easily circumvented the metal grate so he could reach into the hopper. If guarding were required on the AccuFeeder hopper, the metal grate was inadequate when the latch bolt was not tightened. The issue is whether the Line 53 employees were exposed to a hazard because of the way the AccuFeeder functions and is operated. In determining whether the Secretary has proven access to the hazard, the “inquiry is not simply into whether exposure is theoretically possible,” but whether 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.”
The problem for the Secretary is his case rests almost entirely on information gathered from Employee #1 during CSHO Bailey’s investigation. The Court has determined Employee #1 is an unreliable witness and does not credit his testimony or statements made to the CSHO. All employee witnesses except Employee #1 stated there was no operational necessity to reach into the hopper. The Court credits their testimony. Neither has the Secretary shown Employee #1 was in the zone of danger of the hopper due to inadvertence. He intentionally bypassed the metal grate even after being warned not to.
The chain and sprocket mechanism that drives the paddles is 24 inches below the metal grate of the hopper, and employees are not required to place their hands below the plane of the metal grate. The Commission has held employees working at half that distance to unguarded machinery were not in the zone of danger.
As the Commission held in Syntron, Inc., 11 BNA OSHC 1868, 1983–84 CCH OSHD ¶ 26,841 (No. 81–1491–S, 1984), where the operator of a cut-off saw stood about 1 foot from the unguarded blade while the saw was operating in an automatic mode, a violation of § 1910.212(a)(1) cannot be found in the absence of evidence that the operator would have any reason to put his hands close enough to the unguarded parts of the machinery to be exposed to a hazard. See Rockwell International, 9 BNA OSHC at 1097–98, 1980 CCH OSHD at p. 30,846 (employees not exposed to the hazard of unguarded power presses where operators did not hold the metal pieces during processing and had no cause to place their hands within the bed of the press ram).
The Secretary argues it was reasonably predictable Employee #1 would be in the zone of danger of the paddle mechanism “based on the frequency with which [he] used his hand to clean out the breader.” (Secretary’s brief, p. 12) Employee #1 testified he reached into the hopper “[e]very single time” of the forty or fifty times he operated the AccuFeeder. As noted, the Court does not credit his testimony. The Team Leader testified his line ran the AccuFeeder about three times a month. Employee #2, whom the Court finds credible, testified Employee #1 had stopped manually cleaning the hopper after he had been warned. The record establishes there was no operational necessity for employees to reach into the hopper and such an action could not be done inadvertently.
The Commission has rejected the Secretary’s argument that exposure is based on physical possibility.
The Secretary contends that exposure means “physically possible for an employee to put his hand in the hazardous area, even if by inadvertence or improper performance of his job,”… except where such contact is “freakish or suicidal.“…
The Secretary’s interpretation of these standards means that, in effect, guarding is required unless employee contact would occur only under freakish circumstances does not so much carry the Secretary’s burden to prove exposure as eliminate it.
The Court concludes the Secretary failed to establish employees had access to the paddle mechanism at the bottom of the AccuFeeder hopper, either through operational necessity or inadvertence. For these reasons, the Court VACATES Item 1 of the Citation.
Had the Secretary established the first three elements of his burden of proof, the Court would have found he established actual knowledge of the violation. The Team Leader had observed Employee #1 reach inside the hopper. His knowledge is imputed to the company. “[W]here the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer… . An example of actual knowledge is where a supervisor directly sees a subordinate’s misconduct.”
The employees, including the Team Leader, testified the Team Leader was not a supervisory employee. The Team Leader classified himself as a “supervisor without responsibility” but acknowledged he instructed employees on Line 53 and was responsible for ensuring they followed safety rules. When asked for examples of how he instructs employees, the Team Leader responded, “My marination operator, I tell him we need to make marination and we need to go ahead and get marination made. Get all your ingredients out for your marinade. My batcher, make sure you’re using the right meat codes, make sure you’re using the right meat, you know.” The supervisor testified the Team Leader “oversees” the line and is “in charge of” it.
The Commission has long recognized that “an employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor” for the purpose of establishing knowledge.
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