UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

DECISION AND ORDER

Attorneys and Law Firms

Rachel M. Bishop, Richard Latterell, Trial Attorneys, Atlanta, GA, for Complainant.

Charles A. Stewart III, Lillie A. Hobson, Attorneys, Bradley Arant Boult Cummings LLP, Montgomery, AL, for Respondent.

Wyatt P. Montgomery, Attorney, Beasley Allen Law Firm, Mobile, AL, for Affected Employee.

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

II. BACKGROUND

        LP uses a Trim Waste Conveyor System designed and manufactured by Teal Sales, Inc. to collect and discharge waste produced in the OSB structural panel manufacturing process.  (Pretrial Order, Attach. C ¶¶2, 3.)  The system operates nearly 24 hours per day, seven days per week, and an operator and utility employee are present on each shift.  (Tr. 41.)  One component of the system is the #4 conveyor, which collects trim, transports it along the belt, and discharges it.  (Tr. 135, 151; Ex. R-24 [conveyor and unguarded ingoing nip point at time of injury], Ex. C-9, Ex. C-10 [view of conveyor after injury].)  The #4 conveyor is a sliding belt conveyor, which means the belt runs in a continuous loop.  (Tr. 136.)  One end of the conveyor rotates under power and the unpowered lower or tail end holds the loop tight.  (Ibid.)  Trim from an upper conveyor drops onto the lower end of the #4 conveyor, which transports it up an incline.  (Tr. 151.)  The collected trim eventually ends up in a grinding machine.  (Ibid.)

Trim waste sometimes falls off the #4 conveyor to the floor.  (Tr. 152.)  Since trim and dust are combustible and can also cause employees to trip or slip, LP employees frequently clean the area around the #4 conveyor.  (Tr. 30, 42-43, 77-78.)  In addition to an air hose located above the #4 conveyor’s ingoing nip point, LP provides air wands, brooms, and rakes for employees to use while cleaning.  (Tr. 81, 178; Ex. R-24, Ex. C-7, Ex. C-9, Ex. C-10 [showing location of red air hose].)  Employees use the air hose and wands to blow dust off surfaces and would rake and sweep trim into piles and pick it up with their hands to dispose of it.  (Tr. 81-82.)  At the time of the accident, LP did not have a work rule requiring employees to use air wands, rakes, or other tools to clean trim around the #4 conveyor.  (Tr. 186.)  LP also did not have a rule prohibiting employees from using their hands to pick up trim near the conveyor.  (Ibid.)

Wallace testified that as a press operator at the time of the accident he would walk around the machinery to make sure it was clean and would clean the equipment when LP was understaffed.  (Tr. 80.)  Wallace received training from LP supervisor Tyler Garza, who showed him how to clean with tools and pick up trim that posed tripping hazards.  (Tr. 80-81, 176.)  Garza testified he directed LP employees to use tools and implements rather than their hands to pick up trim near and around the conveyor, and that he never observed an employee break “the plane” around the ingoing nip point.  (Tr. 178-79, 180.)  Garza testified an employee would have to crawl under the catwalk or reach through the side of the #4 conveyor to contact the ingoing nip point, because it was impossible to do so facing conveyor from its end.  (Tr. 183-84.)

Wallace admitted Garza told him not to put his hands near the equipment and was warned not to reach into pinch points or rotating equipment or “break the plane” around the ingoing nip point without using tools or locking out and tagging the conveyor.  (Tr. 81, 104-05, 126, 178-79.)  Nonetheless, Wallace admitted he would rake larger pieces of trim into piles and use his hands to dispose of them, that other employees used their hands to pick up trim and managers, and that he observed this practice.  (Tr. 81-82, 84.)  

Wallace testified he received lockout/tagout training and, although he did not lock out and tag machinery for general housekeeping, he did so for “work on [the #4 conveyor] or whenever something was stuck like in the equipment” and he needed “to get in there and get it out.”  (Tr. 82, 98-99, 177.)  Wallace also locked out and tagged equipment when he needed to place his hand under or on top of the conveyor.  (Tr. 100, 103.)  Garza similarly testified that locking out and tagging the #4 conveyor was part of the process for removing a piece of trim waste that was stuck in the machine.  (Tr. 182.)  

III. ANALYSIS

The “Commission is responsible for carrying out adjudicatory functions” under the Act. CF&I, 499 U.S. at 144. Thus, “[t]he Commission’s function is to act as a neutral arbiter and determine whether the Secretary's citations should be enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam). Therefore, Congress vested the Commission with the “adjudicatory powers typically exercised by a court in the agency-review context.” CF&I, 499 U.S. at 151.

Alleged Violation

In Citation 1, Item 1, the Secretary alleges that on or about May 19, 2021, LP violated § 1910.212(a)(1) when “[o]ne or more methods of machine guarding was not 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[.]” (Compl., Ex. A). More specifically, the Secretary asserts LP “exposed employees engaged to caught-in and amputation hazards in that an ingoing nip point at the return roller of the #4 Trim Waste Conveyor was not effectively guarded while employees perform job tasks such as cleaning in and around the conveyor.” (Id.) The cited standard mandates in relevant part that “[o]ne 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.” 29 C.F.R. § 1910.212(a)(1).

Applicability

        Section 1910.212 is titled “General requirements for all machines.”  The #4 conveyor is a machine and therefore covered by the standard and the return roller of the #4 Trim Waste Conveyor presented an ingoing nip point hazard with the potential to cause serious injury. And “LP does not contend that 29 C.F.R. § 1910.212(a)(1) is inapplicable to trim waste conveyor #4.” (Resp’t’s Br. at 22.)  Therefore, the Court concludes the cited standard applies.  

Noncompliance

“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.” Ibid. (citation omitted.) “In order for the Secretary to establish employee exposure to a hazard she must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.... the inquiry is not simply into whether exposure is theoretically possible. Rather, the question is whether employee entry into the danger zone is reasonably predictable.” Latite Roofing & Sheet Metal, LLC v. Occupational Safety & Health Rev. Comm'n, No. 20-14793, 2021 WL 4912479, at *3 (11th Cir. Oct. 21, 2021) (quoting Sec'y of Labor v. Fabricated Metal Prod., Inc., 18 BNA OSHC 1072 (No. 93-1853, 1997).

“The zone of danger is determined by the hazard presented by the violative condition, and is normally that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.” RGM Constr. Co., 17 BNA OSHC 1229, at *5 (No. 91-2107, 1995) (citing Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976)). The Secretary alleges in the citation that LP exposed employees engaged in cleaning activities in and around the #4 conveyor to caught-in and amputation hazards at the ingoing nip point of the return roller at the tail end of the conveyor.  (Ex. C-1 at 6.)  

CSHO Keown testified that the unguarded ingoing nip point posed a hazard because it was rotating continuously and located in an “open area” where employees accessed the pneumatic air hose and cleaned.  (Tr. 45.)  According to Keown, LP’s employees “have to be close to that nip point to do those cleaning tasks or access the air wand.”  (Tr. 47.)  The Secretary echoes this testimony in her brief, arguing that LP employees “would be in the zone of danger when cleaning around the ingoing nip point at the roller end of the Conveyor and crossing near the ingoing nip point when moving under the nearby catwalk.”  (Sec’y Br. at 14.)   LP contends the zone of danger is much more limited and argues the ingoing nip point is difficult to reach because it is approximately 16 inches above the ground and four inches inside the outer brackets of the #4 conveyor.  (Resp’t’s Br. at 29) (citing Tr. 236-238; Ex. R-40, Fig. 14).  The Court agrees with LP and concludes the record does not support the Secretary’s overly broad definition of the “zone of danger.”  

The Court concludes that notwithstanding the occurrence of the accident, entry to the area surrounding the ingoing nip point was not reasonably predictable.  First, there is no evidence in the record that LP supervisors required LP employees to clean inside the #4 conveyor’s opening, in the area surrounding the ingoing nip point, while the conveyor was operating.  See Wayne Farms, 2020 WL 5815506, at *4 (testimony established new hires were instructed not to reach into machine to clean it).  Keown testified that employees “worked around the area cleaning” and that “they will lock and tagout a system to do additional cleaning or to unstop jams.”  (Tr. 41-42.)  Supervisor Garza testified the area around the ingoing nip point was “only cleaned out usually on a down day for” the #4 conveyor, and he confirmed that lockout/tagout was required to remove a lodged piece of trim or scrap from the conveyor.  (Tr. 182, 185.)  Wallace confirmed that he received lockout/tagout training and he was required to lock and tagout the conveyor if he needed to remove a large scrap of trim.  (Tr. 81.)  Although Wallace testified that he saw employees cleaning near the ingoing nip point, he also said that “if [trim scrap] wasn’t up underneath [the conveyor] or stuck in a belt or anything you can just walk right up to it and pick it up.”  (Tr. 84-85.)  No other employees testified how they would clean around the #4 conveyor or that there was contrary practice.  Taken together, this testimony from Wallace, Garza, and Keown does not show LP’s employees cleaned in the zone of danger surrounding the ingoing nip point while the #4 conveyor was operating.  Rather, it was employee practice to lockout and tag the machine when they needed to access the area around the ingoing nip point.  See Aerospace, 2020 WL 5815499, at *5 (concluding it was not employee practice and therefore not reasonably predictable employee would circumvent guard and place fingers in the zone of danger).  Therefore, the Secretary did “not establish the machine was normally operated” or cleaned “in a way that contemplated or anticipated such entry.”  Wayne Farms, 2020 WL 5815506, at *4.  

Exposure

 Although the Court need not reach the exposure element of the Secretary’s prima facie case, the Court briefly discusses it.  “The Secretary can establish that the employees had access to the violative condition by showing that the employee was actually exposed to the cited condition or that access to the condition was reasonably predictable.” Latite Roofing & Sheet Metal, LLC v. Occupational Safety & Health Rev. Comm'n, No. 20-14793, 2021 WL 4912479, at *3 (11th Cir. Oct. 21, 2021) (citation omitted). Here, the Secretary argues Wallace’s injuries establish actual exposure to the hazard.  (Sec’y Br. at 21) (citing Attach. C ¶6).  LP, borrowing from its noncompliance argument, asserts it was not reasonably predictable Wallace would be in the zone of danger and therefore the Secretary has not established employee exposure to the violative condition. (Resp’t’s Br. at 29-31.)  Although Wallace’s injuries do not establish the noncompliance of the element of the Secretary’s case, the Court agrees with the Secretary that they are sufficient to establish actual exposure.  See Aerospace, 2020 WL 5815499, at *3 n.3.17  

Knowledge

The Secretary, however, contends she must only show that LP had “ ‘knowledge of the conditions that form the basis of the alleged violation; not whether the employer had knowledge that the conditions constituted a hazard.’ ”  (Sec’y Br. at 22) (quoting CWP Asset Corp., No. 17-1483, 2019 WL 2345446, at *8 (OSHRC Apr. 17, 2019) (ALJ) (emphasis in original)).  The Secretary asserts LP had knowledge of the violative condition because statements from LP managers establish they knew the ingoing nip point was unguarded.  (Sec’y Br. at 22.)  LP asserts the Secretary did not carry her burden of proving that a LP employee, management or otherwise, knew that the #4 conveyor violated the machine guarding standard.  (Resp’t’s Br. at 32.)  

The Court notes the Secretary is essentially arguing the Commission’s physical conditions test for the knowledge element of her prima facie case.  However, as indicated supra, knowledge of the hazard, rather than the conditions that form the basis of the alleged violation, is the key inquiry in the Eleventh Circuit. To determine whether LP had actual knowledge that the ingoing nip point presented a hazard that required guarding, the Court considers whether there were “previous workplace accidents . . . , the extent to which employees demand protective equipment . . . , and the obviousness of the hazard.”  C&W, 22 F.4th at 1288 (internal citations omitted).  For the reasons infra, the Court concludes the Secretary has failed to establish LP had actual knowledge that the #4 conveyor’s ingoing nip point presented hazards and that machine guarding was necessary to protect its employees from these alleged hazards.

Further, employees did not demand LP guard the ingoing nip point or voice concerns that it was unguarded.  Wallace testified that he did not believe the ingoing nip point needed to be guarded and he did not tell anyone it should have a guard.  (Tr. 123.)  He also testified he did not think the conveyor was dangerous and did not think he could contact the ingoing nip point.  (Tr. 119-21.)   Garza testified that he did not think the unguarded area where Wallace was injured was dangerous and that employees did not complain this was a dangerous area.  (Tr. 184-85.)   The Court concludes these facts also does not support an actual knowledge finding.  

Lastly, the Secretary asserts LP management and employees actually knew the ingoing nip point lacked guarding, thereby establishing actual knowledge of the conditions forming the basis of the alleged violation.  (Sec’y Br. at 22.)  According to the Secretary, LP managers often walked by the unguarded ingoing nip point and their statements confirm they knew it was not guarded at the time of the accident.  (Sec’y Br. at 22) (citing Ex. C-4 at 3, Ex. C-5).  Although these statements establish LP knew the ingoing nip point was not guarded, they do not prove the obviousness of the alleged caught-in and amputation hazards posed by the unguarded ingoing nip point.  The location of the ingoing nip point—four inches inside the conveyor’s roller end opening—and the fact LP management and employees did not recognize the alleged hazards posed by the ingoing nip point, all establish that the alleged hazards were not obvious.  Rather, the Court concludes these facts establish that LP did not know the alleged hazards required guarding.  Thus, the Court concludes the Secretary has failed to establish LP’s actual knowledge of the alleged hazards posed by the unguarded ingoing nip point under Eleventh Circuit precedent.

IV. ORDER

IT IS HEREBY ORDERED THAT Citation 1, Item 1, is VACATED and no penalty is assessed.

SO ORDERED.  

                                                        /s/                               

                                                        JOHN B. GATTO, Judge

Dated:  July 21, 2023

Atlanta, GA

1 Wallace, an affected employee, elected party status as permitted by Commission Rule 20(a). See 29 C.F.R. § 2200.20(a). Neither the Act nor the Secretary of Labor’s regulations define an “affected employee.” The Commission’s rules define an “affected employee” as “an employee of a cited employer who is exposed to or has access to the hazard arising out of the allegedly violative circumstances, conditions, practices, or operations.” 29 C.F.R. § 2200.1(e). See also, section 10(c) of the Occupational Safety and Health Act of 1970 (“Act”), which mandates “[t]he rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.” 29 U.S.C. § 659(c).

2 On March 11, 2023, Julie A. Su became the Acting Secretary of Labor and was automatically substituted as a party pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. For ease of reference, she will be referred to as the Secretary herein. The Secretary has assigned responsibility for enforcement of the Act to OSHA and has delegated her authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order No. 8-2020, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety and Health, 85 Fed. Reg. 58393 (Sept. 18, 2020), superseding Order No. 1-2012, 77 Fed. Reg. 3912 (Jan. 25, 2012). The Assistant Secretary has authorized OSHA’s Area Directors to issue the citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein.

3 Citation 2 alleged a grouped other-than-serious violation of the bloodborne pathogens standard at §1910.1030(f)(3) and §1910.1030(g)(2)(ii)(B) with no proposed penalty. (Compl., Ex. B.)  Since Citation 2 was not appealed, in accordance with § 10(a) of the Act, it was deemed a final order by operation of law and is not subject to review by any court or agency.  29 U.S.C. § 659(a).

4 Attached to the complaint and adopted by reference are Citations 1 and 2. (Compl., Ex. A, Ex. B.)  Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).  However, as indicated supra, Citation 2 was not appealed and only Citation 1 is pending in the Court.

5 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

6 Wallace began working at LP in August 2017 or 2018 as a press utility. (Tr. 76-77; Pretrial Order, Attach. C ¶7.)  In that role, he cleaned the press, equipment, and floors with an air wand.  (Tr. 76-77.)  Thereafter, he was a press aide, which involved “[g]eneral clean up, blowing the press three times a shift, walking around inspecting equipment, mak[ing] sure everything sounds good and is running good,” as well as conducting minor maintenance.”  (Tr. 78.)  As a press operator, he ran and operated the inside part of the mill; made sure enough feed or flakes were in the dry bin to keep production running; put in recipes for products; conducted troubleshooting from monitor screens; and gave assignments to press aides. (Tr. 79-80.)  He also conducted walkarounds to ensure equipment was clean and lent a hand with cleaning if staff were shorthanded. (Tr. 80.)  Shift supervisor Tyler Garza, who was also Wallace’s supervisor, testified that LP did not have the saw line utility position filled at the time of the accident and this this role would have been responsible for cleaning around the #4 conveyor. (Tr. 189.)

7 LP disputes that Wallace lost his balance as he was picking up trim.  The company, relying on testimony from its biomechanics and accident reconstruction expert, contends he intentionally placed his hand in the opening and accidentally caught it in the ingoing nip point.  (Resp’t’s Br. at 32; Tr. 221-22.)  As discussed below, the Court can decide the case without addressing whether Wallace’s contact with ingoing nip point was the result of an intentional or accidental movement towards the ingoing nip point.  

8 “Compliance Safety and Health Officer”  means “a person authorized by the Occupational Safety and Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. § 1903.22(d).

9 CSHO Keown has a B.S. in Environmental Science/Industrial Hygiene from Western Kentucky University and has completed some graduate work at Marshall University.  (Tr. 28.)  He previously worked for the Commonwealth of Kentucky Natural Resource and Environmental Protection Cabinet.  At the state agency, he inspected drinking water plants, wastewater plants, and industry point sources, as well as state oil and gas facilities.  (Tr. 28-29.)  He then worked as an industrial hygienist at the federal Mine Safety and Health Administration for two years.  (Tr. 29.)  His MSHA training included machine guarding and inspecting machines.  (Tr. 30.)  He transferred to OSHA’s Mobile Area Office in 2009.  (Tr. 31.)  Since then, he has taken dozens of trainings and inspected 40-60 worksites per year, including dozens for machine guarding.  (Tr. 31-32.)  He estimated these inspections have led to at least two dozen machine guarding citations, including citations related to employer-reported amputation responses.  (Tr. 32-33.)  

10 As indicated supra, the Secretary delegated her authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health and the Assistant Secretary promulgated the Occupational Safety and Health Standards at issue.

11 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). Here, LP’s headquarters is located in Tennessee, which is in the Sixth Circuit, and the citation was issued in Alabama, which is in the Eleventh Circuit. Since both parties cited to Eleventh Circuit precedent in their briefs, the Court applies the Eleventh Circuit’s precedent where the case is likely to be appealed.

12 The parties do not dispute that the ingoing nip point at the roller end of the #4 conveyor was not guarded at the time of the accident.  Rather, LP installed a guard over the nip point following the accident.  (Pretrial Order, Attach. C ¶8; Tr. 36, 152-53; Ex. C-7, Ex. C-9, Ex. C-10).

13 Dr. Knox works for Engineering Systems Inc. and was qualified as an expert “in the field of biomedical engineering and biomechanics, human factors and ergonomics.”  (Tr. 201-03.)  The Court sustained the Acting Secretary’s objection to LP’s admission of Dr. Knox’s report into evidence but allowed Dr. Knox to testify to his photographs contained in the report.  (Tr. 212-13; Ex. R-37 [photographs], Ex. R-40 [report]).  Dr. Knox used the photographs to opine as to Wallace’s body and arm/hand position in the moments leading to Wallace’s contact with #4 conveyor’s ingoing nip point.  

14 Since the Fifth Circuit is not a circuit that the case can be appealed to, the Court notes that Fifth Circuit precedent is not binding but is only persuasive.

15 The Court does not find that these measurements amount to guarding by distance.  Rather, the measurements establish employees worked and cleaned far from the zone of danger, which was limited to the area surrounding the ingoing nip point, inside the conveyor’s opening, such that entry was not reasonably predictable.  Cf. Packers Sanitation, 795 F. App’x at 820 (unpublished) (employer violated machine guarding standard by using only a distance-based safety protocol rather than a physical guard because it was reasonably predictable that an employee would have inadvertently entered the zone of danger).

16 According to the LP’s internal machine guarding standard, “[a]ll machine hazards (point of operation, nip points, rotating/reciprocating or moving parts, etc.) located seven feet or less above the ground or working platform shall be guarded to prevent accidental contact.”  (Ex. J-4 at 2, ¶5.A.a.)

17 The Commission has recognized that although the noncompliance and exposure elements “overlap” they are not “identical.”  Aerospace, 2020 WL 5815499, at *3 n.3.  To establish the exposure element of her case, the “Secretary must prove actual exposure to the violative condition or that access to the violative condition was reasonably predictable.”  Id.

18 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981.  See Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995.  The Eleventh Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).  This body of precedent is binding unless and until overruled by the Eleventh Circuit en banc. Id.  Further, the decisions of the continuing Fifth Circuit's Administrative Unit B are also binding on the Eleventh Circuit, while Unit A decisions are merely persuasive. Dresdner Bank AG v. M/V Olympia Voyager, 446 F.3d 1377 (11th Cir. 2006).

19 Although Keown testified that LP had a serious violation within three years prior to Wallace’s accident, he “was not sure” whether it involved a nip point.  (Tr. 58.)

20 LP asserts it is entitled to the affirmative defense of unpreventable employee misconduct.  (Answer, Affirm. Defenses ¶5; Resp’t’s Br. at 32.)  Because the Secretary failed to establish her case in chief, the Court declines to address it.