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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11537
Non-Argument Calendar
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Agency No. 17-1376
PACKERS SANITATION SERVICES, INC.,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
ACTING SECRETARY OF LABOR,
Respondents.
________________________
Petition for Review of a Final Order of the
Occupational Safety and Health Review Commission
________________________
(January 10, 2020)
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Before WILSON, GRANT, and HULL, Circuit Judges.
PER CURIAM:
Packers Sanitation Services, Inc. petitions for review of a final order from
the Occupational Safety and Health Review Commission finding the company
liable for two serious violations and one other-than-serious violation of the
Occupational Safety and Health Act of 1970.1 29 U.S.C. §§ 651–678. An ALJ
found the two serious violations after concluding that Packers was not maintaining
safe walking–working surfaces and that it had failed to adequately guard
employees from a piece of dangerous machinery. See 29 C.F.R. § 1910.22(d)(1);
§ 1910.212(a)(1). The ALJ found the non-serious violation for a failure to provide
copies of requested business records within four business hours. See
id.
§ 1904.40(a). Packers argues that substantial evidence did not support the ALJ’s
findings and that the ALJ abused her discretion in making evidentiary rulings. We
deny the petition for review.
1
A company cited under the Act may challenge the citation by seeking review before the
Commission, which is independent of the Department of Labor. See 29 U.S.C. §§ 651(b)(3),
659(a), 661. The citation will then be reviewed by an ALJ.
Id. §§ 659(c), 661(j). If the
Commission does not grant review within thirty days following the ALJ’s decision to affirm,
modify, or vacate the citation, then that decision becomes the final order of the Commission. See
Roberts Sand Co., LLLP v. Sec’y of Labor, 568 F. App’x 758, 759 (11th Cir. 2014) (citing 29
C.F.R. § 2200.90(d)).
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I.
Packers provides sanitation services to poultry processing facilities. One of
its clients is the Pilgrim’s Pride facility in Gainesville, Georgia. That location
processes around one million chickens per week. After the Pilgrim’s Pride
employees are done for the day, Packers employees work an evening shift cleaning
the equipment.
During processing, each chicken is sent to a “picking room,” which contains
a machine to remove the tail feathers from the chickens. That machine, known as a
quill puller, contains two rotating augers. To clean the quill puller, a sanitation
employee first hoses down the machine to knock off larger pieces of detritus (a
process called the “first knockdown”). After completing the first knockdown, the
employee then moves to the second stage of the process, a more fine-tuned
cleaning of the machine.
This case arises from an injury that a Packers employee suffered while
conducting the first knockdown. On April 17, 2017, the employee began the first
knockdown while the machine was still running. After the employee stepped in
too close to the machine, the rotating augers caught the employee’s glove and
pulled in his hand. The employee’s fingertip was amputated.
The Occupational Safety and Health Administration opened an investigation
into the accident. As part of the investigation, a compliance officer named Robin
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Bennett and an industrial hygienist named Maria Martinez went to the Pilgrim’s
Pride plant eight days after the incident and met with representatives from Packers.
Those representatives included Caitlin Wilson, a safety manager who acted as a
Packers spokesperson. The representatives agreed that the OSHA officials could
inspect the quill puller.
Wilson informed Bennett and Martinez that the injured employee had
violated a workplace safety rule against putting your hand in a running machine
and a rule requiring each employee to stay at least two feet away from an active
quill puller. The group went to inspect the machine. While walking over to the
machine, Bennett noticed a series of drains in the floor that lacked adequate covers.
Orange cones were set up near the drains to alert employees of the defective drain
covers. The Packers managers began to step over the drains, but the OSHA
officials requested that the group take another route. One manager informed
Bennett that the drains had been in that condition for at least a year. Wilson told
Bennett that she thought the drains were outside the scope of Bennett’s
investigation; Bennett replied that the drains were in plain view.
At the end of the inspection, Bennett requested that Packers provide a listing
of workplace injuries and illnesses known as an OSHA 300 log. See 29 C.F.R.
§ 1904.29. The copy that Packers eventually provided did not contain the incident
that prompted the investigation.
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Bennett recommended that the Secretary cite Packers for two serious
violations: failing to maintain safe walking–working spaces and failing to
appropriately guard the quill puller. See
id. § 1910.22(d)(1) (walking–working
surfaces);
id. § 1910.212(a)(1) (failure to guard). Bennett also recommended that
the Secretary cite Packers for one other-than-serious violation for failing to include
the quill puller incident in their OSHA 300 log. The Secretary agreed and issued
the citations.
Packers timely contested the citations, so the matter was referred to an ALJ
for review. Before that review, the other-than-serious violation was amended after
the company asserted that it properly logged the quill puller incident in its OSHA
300 log on April 21, 2017—but that it failed to provide the most current version of
that log when Bennett made her request on April 25. The amended citation stated
that by providing out-of-date records, Packers violated the requirement to provide
appropriate records within four business hours. See
id. § 1904.40(a) (requiring the
company, upon request, to provide copies of “the records you keep under part
1904”).
During discovery, OSHA asked Packers via interrogatory whether its
position was that its employees were prohibited from cleaning the quill puller
while it was operating (and asked that the company provide all facts and evidence
supporting its answer). Packers responded that while its employees “generally”
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did not clean running equipment, if such cleaning were necessary then employees
were supposed to “maintain a sufficient distance” from the equipment. The
company’s response also referenced its lockout and tagout policy (which explains
the process for turning off a machine and safely detaching it from any power
source). The lockout policy stated that two feet from the point of operation was a
“safe distance” for cleaning running equipment. 2
The parties proceeded to a hearing, at which a Packers employee testified
that the injured employee was required under the lockout policy to lock out the
machine before cleaning it. The Secretary objected to the testimony, claiming that
Packers’ position constituted unfair surprise in light of Packers’ interrogatory
response—which had identified a two-foot safe distance rule for employees that
cleaned running equipment. The ALJ overruled the objection.
During the hearing, Packers made the argument that Bennett’s visit to
Pilgrim’s Pride could not count as an inspection of a “workplace”—because none
of Packers’ employees were actively working at the time of the inspection.
Packers also objected to the walking–working surfaces citation, arguing that:
(1) the orange cones eliminated the hazard; (2) there was no evidence that Packers
2
OSHA has a standard that requires locking out certain pieces of dangerous equipment. See
Sec’y, U.S. Dep’t of Labor v. Action Elec. Co.,
868 F.3d 1324, 1328 (11th Cir. 2017) (the lockout
standard “covers the servicing and maintenance of machines and equipment in which the
unexpected energization or start up of the machines or equipment, or release of stored energy
could cause injury to employees” (quoting 29 C.F.R. § 1910.147(a)(1)(i)).
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had knowledge of a hazardous condition; and (3) there was no evidence that any
employees were exposed to the condition. Packers argued that they could not be
held liable for the quill puller accident itself because the employee committed
unpreventable misconduct by violating the lockout policy. Packers concluded by
explaining that it did not believe that it should be found responsible for a failure to
provide the appropriate incident log because it provided the log that was onsite and
OSHA had not specifically requested “current” logs.
The ALJ affirmed each of the violations. In the ALJ’s written decision, she
changed her prior ruling on the testimony regarding whether the lockout policy
mandated locking out before cleaning the machine and struck it for unfairly
surprising the Secretary. She otherwise found that Packers was responsible for
each of the three violations. Because the Commission declined to review the
decision, the ALJ’s decision became a final order of the Commission. 29 U.S.C.
§ 661. Packers now appeals.
II.
“Commission decisions are entitled to considerable deference.” Quinlan v.
Sec’y, U.S. Dep’t of Labor,
812 F.3d 832, 837 (11th Cir. 2016). We will uphold
the Commission’s findings of fact so long as they are “supported by substantial
evidence on the record considered as a whole.”
Id. (quoting ComTran Grp., Inc. v.
U.S. Dep’t of Labor,
722 F.3d 1304, 1307 (11th Cir. 2013)). We will uphold the
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Commission’s legal conclusions so long as they are not “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.”
Id. (quoting 5
U.S.C. § 706(2)(A)). Neither party disputes that we review the ALJ’s decision
whether to admit or exclude evidence for abuse of discretion. Cf. Morro v. City of
Birmingham,
117 F.3d 508, 513 (11th Cir. 1997) (district court’s evidentiary
decisions are reviewed for abuse of discretion).
III.
We begin by addressing whether each of the citations resulted from an
inspection of a “workplace.” The Secretary is authorized “to enter without delay
and at reasonable times any factory, plant, establishment, construction site, or other
area, workplace or environment where work is performed by an employee of an
employer” to inspect and investigate. 29 U.S.C. § 657 (a)(1), (2). We agree with
the ALJ that “nothing in the Act or OSHA case law requires employees to be
actively working on a site at the time of an OSHA inspection for a location to be
deemed a workplace of their employer.” Packers’ alternative interpretation—that
the inspection needed to take place while Packers employees were actively
working—ignores the statute’s clear statement that an inspection may take place
“during regular working hours and at other reasonable times.”
Id. § 657 (a)(2)
(emphasis added). And while Packers points out that Pilgrim’s Pride controlled the
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workplace before the Packers workers began their shift, the cited conditions did not
change during the transition between the two workforces.
We next turn to each of the ALJ’s determinations that Packers violated an
OSHA safety standard. The Secretary makes out a prima facie case that an OSHA
standard was violated by showing “(1) that the regulation applied; (2) that it was
violated; (3) that an employee was exposed to the hazard that was created; and
importantly, (4) that the employer ‘knowingly disregarded’ the Act’s
requirements.” ComTran Grp.,
Inc., 722 F.3d at 1307 (citation omitted). If “the
Secretary shows that a supervisor had either actual or constructive knowledge of
the violation, such knowledge is generally imputed to the employer.”
Id.
A.
We uphold the ALJ’s determination that Packers violated the OSHA
standard for safe walking–working surfaces. Packers was required to ensure that
walking–working surfaces “inspected, regularly and as necessary, and maintained
in a safe condition.” 29 C.F.R. § 1910.22(d)(1). Packers argues that the ALJ erred
in finding that the company violated that regulation because there was no evidence
that any employees were exposed to the hazard; because the orange cones
alleviated the hazard; and because Packers lacked the ability to repair the drain
covers (as the drains were owned by Pilgrim’s Pride). The evidence before the
ALJ, however, included a statement from an employee that he had previously
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stepped over the drains while working. A Packers supervisor also explained that
while the orange cones near the drains alerted employees to be cautious, there was
no rule against stepping over the inadequately covered drains. That evidence
suffices to support the conclusion that Packers’ employees were exposed to the
hazard. The statement by the supervisor regarding the placement of cones near the
hazards also suffices to impute knowledge of the hazard to the company. See
id.
The fact that Packers does not itself own the drains does not eliminate its
responsibility to provide its employees with a safe working space. See Cent. of
Georgia R.R. Co. v. Occupational Safety & Health Review Comm’n,
576 F.2d 620,
624 (5th Cir. 1978) (“[A]n employer may not contract out of its statutory
responsibilities under OSHA.”).3 We conclude that sufficient evidence supported
the ALJ’s findings underlying its conclusion that Packers violated the safe
walking–working surfaces regulation.
B.
We also uphold the ALJ’s determination that Packers violated the machine
guarding standard. Packers was required to provide “one or more methods of
machine guarding” to “protect the operator” from hazards such as “ingoing nip
points.” 29 C.F.R. § 1910.212(a)(1). The Commission has held that for the
3
We have adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc).
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Secretary to establish that employees are exposed to a hazardous nip point, the
Secretary 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.” See Southern Hens, Inc. v. Occupational Safety &
Health Review Comm’n,
930 F.3d 667, 679 (5th Cir. 2019) (quoting Fabricated
Metal Prods. Inc., 18 BNA OSHC 1072 (No. 93-1853, 1997),
1997 WL 694096, at
*3). Under that standard, which Packers agrees is the correct one, entry into the
zone of danger must be “reasonably predictable,” not merely theoretical. See
id.
The “Commission has long held” that the machine guarding standard “requires
physical guarding” and permits “guarding by distance only when physical guards
or barriers are infeasible.”
Id. (internal quotation mark omitted). Packers does not
contend that physical guarding was infeasible.
The quill puller’s two augurs form an ingoing nip point. Sufficient evidence
supported the ALJ’s finding that, due to operational necessity, it was reasonably
predictable that an employee would enter the zone of danger near that nip point.
The injured employee in this case was tasked with hosing down the quill puller to
knock off larger pieces of debris. There was no external line or barrier marking a
two-foot distance from the machine—the safe distance that Packers identified. Nor
was there a hard physical barrier preventing the employee from accessing the nip
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point. As such, the ALJ was entitled to conclude that it was reasonably predictable
that the employee would inadvertently veer too close to the nip point.
Packers’ argument that the employee would have faced no danger had he
observed the two-foot rule is likewise unsuccessful. To the extent that it seeks to
blame the injured employee for failing to follow that rule, Packers misses the mark.
The machine guarding standard would mean little if a company could escape
responsibility merely by reminding its employees to stay a safe distance from
dangerous machines. After all, “common human errors such as neglect,
distraction, inattention or inadvertence,” which might cause an employee to enter
the zone of danger, are part of the basis for the standards in the first place. See
id.
at 677 (citation omitted) (internal quotation marks omitted).
Packers argues that it is nevertheless entitled to the affirmative defense of
unpreventable employee misconduct because the injured employee violated a
mandatory rule that the machine should be locked out and inoperative before it was
cleaned. Resolving this issue requires considering the ALJ’s decision to strike
Packers’ testimony at the hearing that any such rule existed. We conclude that the
ALJ did not abuse its discretion in excluding the testimony. Packers’ response to
the Secretary’s clearly worded interrogatory indicated a “general” preference that
machines not be cleaned while in operation—but that if they were, then employees
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should remain two feet clear from the machine.4 The clear implication of Packers’
response was that the company did not have an absolute prohibition against
cleaning machines in operation. Packers’ new testimony regarding the lockout
policy at the hearing, however, indicated that there was such a prohibition. It was
not an abuse of discretion for the ALJ to exclude that testimony—which
effectively reversed Packers’ interrogatory answer—due to the unfair surprise it
worked upon the Secretary. 5 Cf. Weeks v. Remington Arms Co.,
733 F.2d 1485,
1491 n.11 (11th Cir. 1984) (explaining that evidence may excluded under Rule 403
where it would create unfair surprise).
Absent an appropriate rule, Packers cannot make out the defense of
unpreventable employee misconduct. To establish that affirmative defense, an
employer must show that it “1) has established work rules designed to prevent the
violation, 2) has adequately communicated these rules to its employees, 3) has
taken steps to discover violations, and 4) has effectively enforced the rules when
violations have been discovered.” Southern Hens,
Inc., 930 F.3d at 678 (citation
omitted). Evaluating whether an employer has established this defense will often
overlap with the merits inquiry of a violation—as it does here. See
id. Without the
4
While Packers’ response to the interrogatory provided the lockout policy as a relevant
document, the policy itself did not clearly explain whether lockout occurred before the first
knockdown or before the second, fine-tuned cleaning.
5
Nor was it error for the ALJ to consider testimony from Packers’ expert that it eventually
excluded as evidence for the separate purpose of determining whether the Secretary was given
adequate notice of Packers’ defense. See 5 U.S.C. § 556(e).
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stricken testimony, Packers is left arguing that the injured employee violated the
proximity rule. But the relevant inquiry is whether the employee caused the
violation—not whether the employee could have avoided injury despite the
employer’s violation. See
id. (“The departure from OSHA standards, not the
worker’s injury, is the violation.”).
The only remaining issue as to the machine guarding standard, then, is
whether Packers was aware of the dangerous condition. The ALJ had sufficient
evidence to conclude that the company was aware of the hazard. Supervisors
walked past the quill puller regularly and could easily see that it lacked the
necessary physical guards. Sufficient evidence supported the ALJ’s findings
underlying its conclusion that Packers violated the machine guarding standard.
C.
Finally, we affirm the ALJ’s determination that Packers committed an other-
than-serious violation of 29 C.F.R. § 1904.40(a), a regulation which requires
employers to provide OSHA with copies of the records they “keep under part
1904” within four business hours if OSHA requests them. Packers’ argument that
they were only required to produce the records that were onsite at the time of the
request conflicts with the regulatory scheme, as the very next section of the
regulation explains how a company may calculate its deadline to produce the
records if it keeps them in another time zone. See
id. § 1904.40(b)(2). And while
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Packers suggests that OSHA did not specifically use the word “current” when it
requested the records, the basic requirement that a company update its log after an
accident means that any request for the records kept “under part 1904” is a request
for current records.
PETITION DENIED.
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