argument we'll take a brief recess after the second case and we begin with saturn hans incorporated versus occupational safety and health review commission mr comedy may please the court my name is steve comedy i would represent southern hands southern hens is a chicken processor in moselle mississippi it has three separate plans to cook plants and one slaughter  he found a couple other areas one the plant one of the areas was a chilling mission a chill machine chills the product as it goes through the process and the process that it's on like the conveyor belt and he found that there was a gap in the conveyor belt and that that gap was a hazard as after the inspection osha issued three violations one was for failed to maintain proper lock out tag out procedures come in and say the mere existence of a button to point listen results in a hazard osha must have some evidence of other injuries in that area or near misses in that a and the busy your position that it was untrue seeable that there would be a serious risk of harm as to either one as to either one you want to be but then then when you look at the record and what the ail jay found it was difficult for me you claim in your briefs both your principal  brief that miss norman was not instructed to scrub it while it was on but the ala j citing to the transcript and saying to ms norman's testimony says that she said web and jessie both told her describe it while it was on so so so then the question is how can you say it was an forseeable if she was instructed by both supervisors to scrub it while it was on periodic inspections that they walk through the point and they never observe this number was number two there were but in your brief you said specifically without record citation that she was not instructed to scrub it while it's on now is that a correct representation of the record or did she say that she was instructed by supervisors describe what it was on she said and testified on the record that was instructed to why in your principal brief in your reply brief did you say that she was neither instructed nor ever witness if she said that she was and then the l j found her to be a credible witness she first off let me go just to see if once he was told about the will he was not i'm just asking you for your brief representations that she was not instructed to when in fact she testified that she was in the ajay founder to be credible how do you explain the position you're taking in the brief that there is a rule that she's not to do applies that we had no way of knowing furthermore even if your supervisors are telling her to do what you say you didn't know she was doing much the same way that the foreman in the yates case did the things that he did and that the circuit said  that's that's that the justice in that was put before the court that similar to the gates case with that foreman did things that he was not supposed to do that is this a violation these these supervisors should not have told her if they did and when you say to me now we don't believe they did if they a l j found that she was credible and she said both of them not only told her but mr webb watched her i don't see how you can be arguing today there was some clear specifically told her to lock out the machine before scrubbing the outside with these just john instructions or did they specifically talk about locking out and scrubbing from the outside come near it to pull for your hands or anything else comes near the machine because again moving machinery is a very dangerous thing that in a point in the chicken plants have a lot of moving parts and the  and the chill is a date if you're cited for an osha violation and you have a rule that says don't do something that your supervisors are telling people to do you have any commission precedent that you would point is to us the significance of the rule the written rule that's not being followed by supervisors being relevant to an osha violation a much or you don't follow him but i don't have any authority to that know but i do my position is that we provide the rules jessie were the misconduct employees if they indeed did that and ok we're assuming they did because that was the fact of signing did they get cited because she was cited for discipline they do cite the two of them much or there's any record evidence that they were as to the chiller i thought the substantial evidence that was articulated was that the adjacent conveyor belt had the guard that hunt told the ocean specter that the chickens jammed all the time and the rake was heavy and therefore it was perceivable that people would have to get down use their hands i think you are once again if he did violate what we told them to do which is to use the two for the long metals tool to because the hazard was guarded by distance and we train the employee on using the two and we told him not to get his hands on the of the machine and on addition to that there been no history there of any type of the interest on there so we had knowledge that that the machine was dangerous or that that nip point was dangerous and therefore by the guardian by distance and the actual lack of evidence of any even near misses the cup that my client keeps up with near misses so no mere mess is known there are no injuries and so therefore we had no knowledge of the hazard and that the violation was improper up cannot go just of to the penalties real quick the penalties seven hundred forty one as a penalty we think that the most which side in the case of some law where the effects of rule over the general congress should do what they did in the false claims act what congress should do is to incorporate the inflation amendment act into for inflation the act into the ocean and having not done so the osha act has only a seven thousand dollars