Labor & Employment Law Daily Poultry processor had constructive knowledge of OSHA violations, couldn’t rely on ‘unpreventable employee misconduct’
Saturday, July 20, 2019

Poultry processor had constructive knowledge of OSHA violations, couldn’t rely on ‘unpreventable employee misconduct’

By Ronald Miller, J.D.

An employer lacked the sort of established work rule required to assert an affirmative “unpreventable employee misconduct” defense, so an ALJ’s finding of OSH Act violations was upheld.

An employer found to have committed a lockout-tagout violation and a machine-guarding violation following an OSHA investigation into an injury at a chicken processing plant was denied its challenge of the agency’s finding and the penalty imposed. Because the employer lacked an established work rule, it could not rely on the “unpreventable employee misconduct” defense with respect to the employee’s failure to use lockout procedures on a machine since she did not receive any direction regarding cleaning the outside of the machine, ruled the Fifth Circuit. As to the machine-guarding violation, the appeals court rejected the employer’s contention that its provision of a tool prevented the occurrence of a violation, where it failed to show that installing a physical barrier was not feasible (Southern Hens, Inc. v. Occupational Safety and Health Review Commission, July 18, 2019, Higginson, S.).

Injury. The employer operates a poultry processing plant which employs roughly 700 employees. One of those employees was assigned to the night shift, which was devoted to cleaning the plant and the machines. She was assigned to clean a machine called the Short Weight Tumbler. She applied foaming chemicals while the machine was running and climbed a ladder to reach the higher parts of the machine. The employee was scrubbing the outside of the machine when a glove got caught in the drive mechanism. As a result, her thumb was “partially amputated.” She was taken to the hospital and missed work for several months thereafter.

OSHA investigation. The employer reported the injury to the Occupational Safety and Health Administration (OSHA), which opened an investigation. The investigation went beyond the employee’s injury. Following the investigation, the investigator recommended three serious citations. Two were related to the employee’s injury, and concerned the employer’s compliance with lockout-tagout regulations, 29 C.F.R. § 1910.147(c)(4), and § 1910.147(d)(4)(i). The third arose from the investigator’s observation of an employee clearing a conveyor jam with his hands and concerned compliance with a machine-guarding standard, 29 C.F.R. § 1910.212(a)(1).

Hearing. The employer contested the citations, leading to a one-day evidentiary hearing before an administrative law judge. Much of the hearing focused on the training provided on lockout-tagout concepts and procedures. The employee testified that she received general lockout-tagout training when she started, but nothing specific to the Tumbler. She further testified that she was never shown specific written lockout-tagout procedures for the Tumbler. The OSHA investigator’s testimony mostly involved the machine-guarding issue.

Penalties. The ALJ affirmed two of the three recommended citations. The ALJ rejected the first lockout-tagout violation concerning the requirements for written procedures under § 1910.147(c)(4)(i). By contrast, the ALJ found that the employer violated § 1910.147(d)(4)(i), which requires a lockout device affixed during servicing or cleaning. The Tumbler was not locked out for the cleaning process that resulted in the employee’s injury. The ALJ also found that the employer violated § 1910.212(a)(1) by not guarding the pinch point on the conveyor. Both violations were deemed “serious” due to the gravity of the employee’s injury, and the employer was penalized $7,000 for the lockout-tagout violation and $5,000 for the machine-guarding violation.

Petition for review. After the OSHRC declined discretionary review of the ALJ’s decision, the employer timely filed a petition for review. A violation of OSHA standards may be characterized as “willful,” “serious,” or “not serious,” which shapes the penalty possible. A “serious” violation exists “if there is a substantial probability that death or serious physical harm could result” from a condition or practice, “unless the employer did not, and could not with exercise of reasonable diligence, know of the presence of the violation.”

Lockout-tagout violation. The employer challenged the lockout-tagout violation on the grounds that it lacked knowledge of the violative condition and the employee’s injury resulted from misconduct that it could not prevent. The parties agreed that § 1910.147(d)(4) applied to the process of cleaning the Tumbler, that the standard was violated in this instance, and that the employee was exposed to the violative condition. Their dispute focused on whether the employer had actual or constructive knowledge of the violation.

The ALJ found that if the employer were exercising reasonable diligence, it should have learned that the employee was not locking out the Tumbler while scrubbing the outside of the machine by hand. The Fifth Circuit ruled that substantial evidence supported the ALJ’s determination that the employer had constructive knowledge. Here, the employee’s training on the Tumbler was by way of another employee, whose only guidance was that she should lock out the Tumbler before climbing into its drum. She was never instructed to lock out the machine before scrubbing the outside. The employer failed to rebut this point.

Moreover, the plant manager regularly passed the Tumbler while the employee cleaned it. On one occasion when he saw the employee foaming the outside of the machine, he questioned why the machine was turned off. Because the plant manager was in a position to observe the employee’s work closely, his proximity indicated that had he been reasonably diligent, he should have noticed that the employee was scrubbing the outside of the machine without locking it out.

The appeal court also rejected the employer’s contention that the employee was distracted with personal problems on the day in question and that she used the machine improperly. Rather, the court observed that the employer did not have an established work rule that, if followed, would have prevented the employee’s injury.

Machine-guarding violation. As to the machine-guarding violation, the employer argued that employees were not exposed to a violative condition, that it lacked knowledge of the violative condition, and finally, that perhaps that the condition—a missing machine guard—was not actually a violative condition. Moreover, it added that if upheld, the machine-guarding violation should not be deemed serious.

The ALJ found the standard was violated because the conveyor at issue had an “ingoing nip point” with “no physical guard covering it. The ALJ found that employees were in the “zone of danger” based on an investigator’s testimony that an employee’s hand was within an inch or two of the nip point. She found that this was reasonably predictable because the employer knew that jams occurred frequently, and it was the employee’s role to clear them. The ALJ also found that the employer had constructive knowledge of the violation.

Again, the appeals court found that substantial evidence supported these determinations. It rejected the employer’s contention that the use of a tool made the likelihood of injury more “remote,” and the employee was trained to use the tool. However, the court noted that safeguarding by maintaining a safe distance from the point of operation may be acceptable but only when safeguarding by physical barrier is not feasible. Here, the employer had not shown that a physical guard would be unfeasible.

Penalty. Finally, the employer contested the ALJ’s penalty determination on the ground that the Secretary of Labor impermissibly requested a penalty exceeding the statutory maximum. However, the employer’s challenge to the penalties was not based on the ALJ’s consideration of the factors enumerated in 28 C.F.R. § 666(j), but on the theory that the ALJ impermissibly considered penalty sums exceeding the statutory maximum. The appeals court noted that the actual penalties did not exceed the cap for serious violations. Therefore, the penalties were upheld.

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