United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 17-0029 

Southern Hens, Inc.,

 Respondent.

Appearances: 

Jeremy K. Fisher, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta, 

Georgia

For the Secretary

Stephen J. Carmody, Esq., Brunini, Grantham, Grower & Hewes, PLLC

For the Respondent

BEFORE: Administrative Law Judge Heather A. Joys

AMENDED DECISION AND ORDER

On August 4, 2016, an employee of Southern Hens, Inc. (Southern Hens) sustained a 

severe laceration to her thumb when it became caught in the drive mechanism of the machine she 

was cleaning. She lost a portion of her thumb as a result. Following the incident, the Jackson, 

Mississippi, Occupational Safety and Health Administration (OSHA) Area Office conducted an 

inspection of the facility. As a result of the inspection, the Secretary issued a three-item serious 

citation. Items 1a and 1b, Citation 1, allege violations of the lockout standard at 29 C.F.R. § 

1910.147 for failure to have clear written procedures, and failure to follow those procedures 

during machine cleaning operations. Item 2, Citation 1, alleges a violation of the machine 

guarding standard at 29 C.F.R. § 1910.212 for failure to guard an in-going nip point on a 

conveyor. The Secretary proposed a total penalty of $19,134.00 for the violations.

Southern Hens contested the citations bringing the matter before the Occupational Safety 

and Health Review Commission pursuant to § 10(c) of the Occupational Safety and Health Act 
2

of 1970, 29 U.S.C. § 651-678 (the Act). All three alleged violations and the proposed penalty 

are at issue.

I held a hearing in this matter on October 10, 2017, in Jackson, Mississippi. The parties 

filed post-hearing briefs on January 12, 2018.1

For the reasons discussed below Items 1a is vacated; Items 1b and 2 are affirmed as 

issued. A penalty of $ 12,000.00 is assessed.

JURISDITION

At the hearing, the parties stipulated jurisdiction of this action is conferred upon the 

Commission pursuant to § 10(c) of the Act (Tr. 13-14). The parties also stipulated at the hearing 

that at all times relevant to this action, Southern Hens was an employer engaged in a business 

affecting interstate commerce within the meaning of § 3(5) of the Act, (Tr. 13). Based on the 

stipulations and the facts presented, I find Southern Hens is an employer covered under the Act 

and the Commission has jurisdiction over this proceeding.

BACKGROUND

Southern Hens is a poultry processor with a facility in Moselle, Mississippi. At that 

facility, Southern Hens operates three plants with approximately 700 employees (Tr. 144). 

During the day, employees process poultry for retail and commercial sale (Tr. 21). During the 

night shift (from 8:30 p.m. to 6:30 a.m.) employees perform sanitation work, including cleaning 

the machines used in the poultry processing operations.

The citation in this matter involves operations at Plant No. 3 only. Plant No. 3 contains 

several large pieces of equipment used in the poultry processing operations. At issue in this 

proceeding are the Short Weight Tumbler, Freezer No. 2, and Chiller No. 2.

The Accident

The accident occurred while an employee was cleaning the Short Weight Tumbler (the 

Tumbler). The Tumbler is a large machine used to remove water from processed chicken parts 

in order to get an accurate weight (Tr. 244-45). It does so by spinning the chicken parts in a 

 

1 To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed 

abandoned. Throughout the pre-trial proceedings, Southern Hens raised the affirmative defense of unpreventable 

employee misconduct with regard to Item 2, Citation 1. It did not address that defense in its post-hearing brief. 

With regard to Item 2, Citation 1, I consider that defense abandoned.
3

drum large enough for a person to climb into. 2 The Tumbler is in a room with no other 

equipment (Tr. 48).

The injured employee’s regular assignment was to clean the Tumbler. At the time of her 

accident, she had been doing that job daily for approximately one month (Tr. 18, 51). The 

injured employee was assigned to clean the Tumbler by Greg Webb, the Sanitation Manager (Tr. 

20-21; 245). She was trained by another sanitation employee named Jessie who had previously 

done the job (Tr. 25). According to the injured employee, this training involved an explanation 

and some demonstration. Although he told the injured employee to lock out the machine before 

climbing into the drum and showed her where the locks were located, Jessie did not demonstrate 

the lockout process (Tr. 49; 75-76). The injured employee was never given written lockout

procedures for the Tumbler (Tr. 49).3 

The process of cleaning the Tumbler involved hosing it down, followed by applying 

cleaning chemicals or foaming, and hand scrubbing, inside and out (Tr. 25-27, 33-34). The 

entire process took approximately 4 hours (Tr. 33). The process began with opening doors that 

served as guards for the drive mechanism (Tr. 36-37, 41; 78).4 The Tumbler was off, but not 

locked out at this time (Tr. 78-79). After the doors were opened, exposing the drive mechanism, 

the injured employee would turn on the Tumbler and begin hosing it down (Tr. 78). According 

to the injured employee, she was instructed by Jessie and Manager Webb to keep the drum of the 

Tumbler spinning while hosing and foaming (Tr. 27-28; 78). She testified Jessie instructed her 

to deenergize and lock out the Tumbler when the process required her to climb inside the drum 

to scrub it (Tr. 25-26; 76). She testified this was the process she followed (Tr. 84). She would 

then reenergize the Tumbler after she had scrubbed the inside of the drum in order to continue 

hosing it down (Tr. 85-86).

Cleaning the Tumbler included scrubbing near the drive mechanism. The injured 

employee testified the scrubbing process brought her hand within 7 inches of the drive 

 

2 The Tumbler is depicted in Exhibit C-1; the drum of the Tumbler is depicted in Exhibit C-2.

3

I found the injured employee’s testimony credible. She did not appear practiced or rehearsed. Although she was 

occasionally confused by the wording of some questions, her demeanor when testifying evinced an earnest attempt 

to provide an honest answer. Her testimony on cross examination was consistent with that on direct. Little of her 

testimony was rebutted. Neither Jessie nor Manager Webb were called to testify.

4 The closed door is depicted in Exhibit C-2 (Tr. 36). The open door and exposed drive mechanism is depicted in 

Exhibit C-3.
4

mechanism (Tr. 46). Hand scrubbing took approximately an hour and, except for scrubbing the 

interior of the drum, was performed while the Tumbler was activated (Tr. 47). 

Because the Tumbler was the only equipment in the room, once the injured employee 

was trained, she worked alone (Tr. 49). However, various employees, including Manager Webb, 

passed through the area throughout the shift (Tr. 51-52; 77).

On August 4, 2016, the injured employee reported to work and attended the usual daily 

staff meeting (Tr. 54). She then proceeded to begin the process of cleaning the Tumbler (Tr. 55). 

After foaming the Tumbler, the injured employee prepared to scrub it. She climbed a ladder to 

reach the upper part of the Tumbler and began scrubbing (Tr. 55). She had previously opened 

the doors exposing the drive mechanism. As she scrubbed her glove became caught in the drive 

mechanism pulling in her hand (Tr. 55). Once the drive mechanism released her hand, the 

injured employee removed her glove to see her thumb partially amputated (Tr. 56-57). She 

testified she panicked and began running to find Manager Webb. Manager Webb wrapped the 

hand and told the injured employee to wait for Matt Lee, the Safety Coordinator (Tr. 56-57). 

When Safety Coordinator Lee arrived5, 30 minutes later, he took the injured employee to the 

hospital for treatment (Tr. 211).

As a result of the accident, the injured employee required two surgeries on her hand (Tr. 

57). She permanently lost a portion of her thumb. She returned to work in November, 2016, but

could not perform the assigned work because of her medical restrictions and was off work again 

until January, 2017 (Tr. 58). In January, 2017, upon her return, Southern Hens issued a 

disciplinary notice to the injured employee indicating she had failed to lock out the Tumbler 

“prior to cleaning.” (Exh. C-4; Tr. 59). The injured employee refused to sign the disciplinary

notice because she felt it was “not [her] fault.” (Tr. 61)

The Inspection

Southern Hens notified the Jackson, Mississippi, OSHA Area Office of the accident 

prompting that office to open an inspection on August 10, 2016 (Tr. 107). Compliance Safety 

and Health Officer (CSHO) David Young was assigned to and conducted the inspection. CSHO 

Young’s inspection was limited to Plant No. 3 (Tr. 108). His inspection consisted of a review of 

company’s written policies and procedures, interviews with management and production 

 

5 Safety Coordinator Lee does not work the night shift. He was called at his home (Tr. 210).
5

employees, including the injured employee, and a walk around Plant No. 3. CSHO Young’s 

inspection encompassed both poultry processing and sanitation operations (Tr. 125, 133-35). 

During his walk around inspection, CSHO Young observed two parallel production lines 

(Tr. 125). These two production lines contained equipment for freezing processed chicken parts. 

Employees were stationed on either side of the lines (Tr. 125). CSHO Young saw an employee 

working from a catwalk elevated 15 -18 inches above the floor attempting to free product that 

had become backed up after falling off the conveyor on Chiller No. 2 (Tr. 126-27). The 

employee had been using a metal rake-like tool to clear the area but had resorted to using his 

hands (Tr. 126). CSHO Young observed the employee’s hand came within inches of a pinch 

point located under the conveyor (Tr. 127).6 A similar conveyor was located next to the cited 

conveyor. CSHO Young noted a plastic guard covered the pinch point on the other conveyor

(Tr. 128). CSHO Young spoke with the employee he had observed using his hands to clear the 

product (Tr. 129). The employee told CSHO Young he had been performing that job for three 

weeks. He had been trained to use and provided a metal tool to clear the product, but because 

the tool was heavy, he used his hands (Tr. 130).

CSHO Young observed employees cleaning the equipment used in the freezing process 

as well (Tr. 134). He observed an employee cleaning Freezer No. 2 while it was running (Tr. 

125).7 He noted this process brought the employee in proximity to a moving chain and sprocket 

(Tr. 135). When CSHO Young asked Craig Coberley, Director of Operations, about his

observation, Mr. Coberley told him the employee hadn’t “broken the plane.” (Tr. 135)

Based upon his findings, CSHO Young recommended three serious citation items be 

issued to Southern Hens. CSHO Young concluded Southern Hens’s lockout procedures for the 

Tumbler and Freezer No. 2 did not comply with the requirements of § 1910.147(c)(4)(i)(B) 

because the procedures did not explain when the machines should be locked out (Tr. 120). He 

believed this was necessary because part of the sanitation process was performed while the 

equipment was running (Tr. 119-20). CSHO Young recommended a citation be issued for a 

violation of § 1910.147(d)(4)(i) for failure to lock out the Tumbler during the scrubbing process 

(Tr. 124). He based his findings of a violation on information he received from the injured 

employee (Tr. 122-23). He recommended these two violations be grouped for penalty purposes. 

 

6 The area is depicted in Exhibits C-10 and R-28; the pinch point can be seen in Exhibit C-10.

7 This employee is depicted in Exhibit C-13.
6

CSHO Young recommended a separate serious citation be issued for a violation of § 

1910.212(a)(1). He based this recommendation on his observation of the employee using his 

hands to clear product on Chiller No. 2 during production operations exposing the employee to a 

pinch point (Tr. 128-30). Southern Hens contested all three citation items arguing its lockout

procedures comply with the standard’s requirements; the injured employee’s failure to lock out 

the Tumbler was the result of unpreventable employee misconduct; and the Secretary failed to 

meet his burden to establish a violation of § 1910.212(a)(1). In its brief, Southern Hens argued

the alleged violation of § 1910.212(a)(1) should be vacated because the standard is 

unconstitutionally vague.

DISCUSSION

The Secretary has the burden of establishing the employer violated the cited standard. To 

prove a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

the cited standard; (3) employees had access to the violative condition; and (4) the cited 

employer either knew or could have known with the exercise of reasonable diligence of the 

violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Item 1a, Citation 1: The Alleged Violation of 29 C.F.R. § 1910.147(c)(4)(ii)(B)

Section 1910.147(c) governs the requirements of a lockout/tagout program. Section 

1910.147(c)(4)(ii) specifies the requirements for the written procedures for locking out 

equipment under that program. The cited subpart, § 1910.147(c)(4)(ii)(B), states such 

procedures must contain “[s]pecific procedural steps for shutting down, isolating, blocking and 

securing machines or equipment to control hazardous energy.”

In Item 1a, Citation 1, the Secretary alleges Southern Hens was in violation of §

1910.147(c)(4)(ii)(B) for failure to have “clear and specific” procedures for shutting down the 

Tumbler and Freezer No. 2. The Secretary alleges Southern Hens procedures were inadequate 

because they failed to specify when in the sanitation process the procedures were to be 

implemented. Southern Hens contends the standard does not require the information the 

Secretary alleges is lacking and, even if it did, its procedures have that information. 

Applicability of the Standard

Southern Hens does not dispute the applicability of § 1910.147 to the sanitation process 

for either the Tumbler or Freezer No. 2. The requirements of § 1910.147 apply where employees 
7

are engaged in “servicing and/or maintenance of machines and equipment.” 29 C.F.R. § 

1910.147(a)(2)(i). Cleaning machines and equipment is included in the standard’s definition of 

“servicing and/or maintenance” “where the employee may be exposed to the unexpected 

energization or startup of the equipment or release of hazardous energy.” 29 C.F.R. § 

1910.147(b). The procedures applicable to the Tumbler and Freezer No. 2 identify multiple 

hazardous energy sources for the equipment (Exhs. C-8 and C-14). These energy sources could 

cause unexpected energization or startup of the equipment, exposing employees performing 

servicing or maintenance to hazards such as electrical shock or being struck by moving machine 

parts (Exhs. C-8 and C-14). The standard applies to the cleaning operations performed by 

Southern Hens’s sanitation employees.

Violation of the Terms of the Standard

Section 1910.147(c)(4)(ii) requires an employer’s lockout procedures to “clearly and 

specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the 

control of hazardous energy...” In promulgating the standard, the Secretary retained the word 

“specifically” to “emphasize the need to have a detailed procedure, one which clearly and 

specifically outlines the steps to be followed. Overgeneralization can result in a document which 

has little or no utility to the employee who must follow the procedure.” Control of Hazardous 

Energy Sources, 54 FR 36644-01 (September 1, 1989) at p. 36670. The Secretary also 

emphasized the importance of having those procedures be in writing. Id. In interpreting the 

requirements of the standard, the Commission has recognized the purpose of the written 

procedure is “to guide an employee through the lockout process.” Drexel Chemical Co., 17 

BNA OSHC 1908, 1913 (No. 94-1460, 1997).

Item 1a, Citation 1, alleges a violation of § 1910.147(c)(4)(ii)(B) which requires the 

employer’s written lockout procedures to contain “specific procedural steps for shutting down, 

isolating, blocking and securing machines or equipment to control hazardous energy.” Exhibits 

C-8 and C-14 contain Southern Hens’s written steps for shutting down and locking out the 

Tumbler and Freezer No. 2, respectively. I find no deficiency in these procedures. These 

documents describe the sources of energy and provide the steps necessary to shut down, isolate, 

lock out, and neutralize the equipment. Both explain the procedure for verifying isolation of the 

energy sources. They contain all the elements required under the cited standard and track the 
8

model procedures contained in Appendix A to the standard. The procedures provide sufficient 

specificity to “guide the employee through the lockout process.”

The Secretary argues the procedures do not meet the requirements of the standard 

because they fail to identify when in the sanitation process lockout is to occur.8 As evidence of 

this lack of clarity, the Secretary points out employees did not implement lockout procedures 

before performing cleaning operations and performed some of the cleaning operations while the 

equipment was running. Southern Hens’s procedures state only that the lockout procedures are 

to be implemented prior to servicing or maintenance. This, the Secretary contends, creates 

confusion.

Although I agree with the Secretary the record revealed a lack of consistency in 

understanding and implementation of Southern Hens’s lockout procedures for the two sanitation 

operations, I do not agree this constitutes a violation of the cited standard. By its terms, the cited 

standard addresses only the requirement that the procedures articulate lockout steps. It is 

concerned with the “how” of the lockout procedures, not the “when.” Southern Hens’s 

procedures explain how to lock out the Tumbler and Freezer No. 2. They, therefore, comply 

with the cited standard. 

The lockout procedures developed by Southern Hens for the Tumbler and Freezer No. 2, 

contained in Exhibits C-8 and C-14, meet the requirements of the cited standard. The Secretary

has failed to meet his burden to show Southern Hens violated § 1910.147(c)(4)(ii)(B). Item 1a, 

Citation 1, is vacated.

Item 1b, Citation 1: The Alleged Violation of 29 C.F.R. § 1910.147(d)(4)(i)

Section 1910.147(d) governs the application of energy controlling measures required by 

the standard. Section 1910.147(d)(4)(i) specifically requires a lockout or tagout device be 

affixed to each energy isolating device. The Secretary alleges Southern Hens failed to install a 

lockout device on the Tumbler while the injured employee was performing her cleaning 

operation. Respondent does not deny the injured employee did not perform the required lockout

but argues her failure to do so was the result of unpreventable employee misconduct.

 

8 The violative condition described in the citation is the lack of clarity “as to when the shutdown is required during 

the sanitation process” for the Tumbler and Freezer No. 2. CSHO Young testified when he reviewed Southern Hens 

lockout procedures he found they were “not specific as to when should I lock it out. Should I do it when I rinse? 

When should I do it? Should I do it at the start of the operation? When do I do it?” (Tr. 120) 
9

Applicability of the Standard

Southern Hens does not dispute the applicability of the lockout standard to the sanitation 

process for the Tumbler. For the reasons discussed with regard to Item 1a, Citation 1, the 

standard applies to the cited conditions.

Violation of the Terms of the Standard

There is no dispute the injured employee did not deenergize the Tumbler prior to 

beginning the cleaning process. Nor did she affix a lock to the energy isolating device. The 

Secretary has established Southern Hens violated the cited standard.

Employee Exposure

There is no dispute employees are exposed to the hazards of unexpected energization of 

the Tumbler during the cleaning process. The scrubbing process places the employee cleaning 

the Tumbler within 7 inches of the drive mechanism. The injured employee’s accident is 

evidence of the hazard associated with exposure to the activated drive mechanism. Employees 

engaged in the cleaning process were exposed to the hazard associated with contact with the 

drive mechanism should the Tumbler unexpectedly energize during that process.

Employer Knowledge

To establish employer knowledge of a violation the Secretary must show the employer 

knew, or with the exercise of reasonable diligence could have known of a hazardous condition. 

Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). Because 

corporate employers can only obtain knowledge through their agents, the actions and knowledge 

of supervisory personnel are generally imputed to their employers, and the Secretary can make a 

prima facie showing of knowledge by proving a supervisory employee knew of or was 

responsible for the violation. Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598, 

1984); see also Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986) (the 

actual or constructive knowledge of an employer’s foreman can be imputed to the employer); see 

also W.G. Yates & Sons v. OSHRC, 459 F.3d 604, 607 (5th Cir. 2006). The Secretary contends 

Southern Hens had constructive knowledge of the injured employee’s failure to lock out the 

Tumbler.

Constructive knowledge is shown where the Secretary establishes the employer could 

have known of the cited condition with the exercise of reasonable diligence. Par Electrical 

Contractors, Inc., 20 BNA OSHC 1624, 1627 (No. 99-1520).
10

Whether an employer was reasonably diligent involves a consideration of several 

factors, including the employer’s obligation to have adequate work rules and 

training programs, to adequately supervise employees, to anticipate hazards to 

which employees may be exposed, and to take measures to prevent the occurrence 

of violations.

Id. citing Precision Concrete Constr. 19 BNA OSHC 1404, 1407 (No. 99-707, 2001). 

“Reasonable diligence implies effort, attention, and action not mere reliance upon the action of 

another.” Carlisle Equipment Co. v. Secretary of Labor, 24 F.3d 790, 794 (6th Cir. 1994). The 

Commission has held that “[r]easonable steps to monitor compliance with safety requirements 

are part of an effective safety program.” Southwestern Bell Tel. Co., 19 BNA OSHC 1097, 1099 

(No. 98-1748, 2000 (citations omitted), aff’d without published opinion, 277 F.3d 1374 (5th Cir. 

2001). The Secretary has met his burden to establish Southern Hens failed to exercise 

reasonable diligence.

The injured employee testified much of the cleaning process on the Tumbler is performed 

while the Tumbler is energized and running. Cleaning the Tumbler in this manner was 

consistent with the instructions she had received from Jessie, who had previously performed the 

job. It was also consistent with instructions from Manager Webb (Tr. 27). Although she 

performed the cleaning alone, other employees, including Manager Webb, walked in and out of 

the room throughout the process (Tr. 51-52, 77). Safety Coordinator Lee had observed the 

cleaning process for the Tumbler while the machine was energized and moving (Tr. 225). The 

Secretary has established Southern Hens had constructive knowledge employees were engaged 

in the cleaning process while the Tumbler was energized and not locked out.

To meet his burden in this case, however, the Secretary must show more. The Secretary 

must establish Southern Hens had constructive knowledge employees were not locking out the 

Tumbler during the scrubbing process. I find he has met that more exacting burden of proof.

The Secretary correctly points out nowhere in Southern Hens’s lockout procedures are 

employees specifically instructed when in the cleaning process to initiate lockout of the 

Tumbler.9 Southern Hens does not deny during the rinsing and foaming process, the Tumbler is 

 

9 The procedures state lockout should be initiated “before any servicing or maintenance where the unexpected 

energization or start-up of the machine or equipment or release of stored energy could cause injury.” (Exh. C-8) 

This is not a directive sufficient to notify employees when lockout is required in the cleaning process. This simply 

tells employees to follow the lockout procedures when lockout is required. 
11

energized and running. None of the written procedures or training materials contain an explicit 

instruction to shut down and lock out the equipment after rinsing and foaming but before 

scrubbing. Southern Hens points to a single sentence in a third-party training document that 

states “Always follow proper lock-out/tag-out procedures before beginning any cleaning process, 

or any other process, which requires contact with equipment.” (Exh. R-25) This document is 

not specific to any equipment and provides no further explanation. It is not a clear directive.10 

More importantly, the injured employee never received this document, or the accompanying 

training provided by the third party (Tr. 98).11 Safety Director Lee admitted he had no evidence 

the injured employee had received this training (Tr. 209). The record is devoid of any 

documentation as to when this training occurred or who attended it. Nor is there any detail as to 

its contents. 

The injured employee testified she performed the cleaning process on the Tumbler in the 

same manner every night (Tr. 55). She performed it in the manner instructed by the employee 

who had previously performed the job and who Southern Hens entrusted to provide the injured 

employee with all the necessary training on the Tumbler. Manager Webb was in the out of the 

room in which she worked throughout her shift, including times when she was scrubbing the 

Tumbler energized. The record contains no evidence to the contrary. That the Tumbler is 

running is apparent (Tr. 241-42). A reasonably diligent employer would have recognized the 

injured employee was not locking out the Tumbler before scrubbing it, exposing her to hazards 

associated with the energized drive mechanism.

In 2014, a sanitation employee sustained a similar injury while working on the Tumbler 

(Exh. C-6). The record contains no evidence Southern Hens took any action following that 

incident.

 

10 Even vaguer and unhelpful are the instructions produced by the same third party for the Tumbler at Exhibit R-25. 

The only indication lockout is required is a chart titled “Recommended Equipment” with a column containing the 

term “Scrub Pads” under which is listed “Lock Out Tag.” Without further explanation, this provides little, if any, 

guidance to employees.

11 Southern Hens provides no explanation as to how the injured employee would be aware of any of these third-party 

documents. In its brief, Southern Hens refers to Exhibits R-23 (which was neither offered nor admitted into the 

record), R-24; and R-26 as “equipment brochures” located in the employee locker room (Respondent’s brief at p. 8). 

This misstates the record. Safety Director Lee testified the lockout procedures (Exhs. C-8 and C-14) were kept in 

the employee locker room (Tr. 207-08). “Service manuals” were kept in the QA manager’s office and were 

available “upon request.” (Tr. 208) There is no evidence employees were provided information regarding the 

location and availability of service manuals.
12

I find the preponderance of the evidence establishes Southern Hens failed to exercise 

reasonable diligence to ensure the Tumbler was locked out during the cleaning process. The 

Secretary has established Southern Hens had constructive knowledge the injured employee had 

failed to lock out the Tumbler in violation of the cited standard.

The Secretary has met his burden to establish Southern Hens was in violation of § 

1910.147(d)(4)(i) for failure to lock out the Tumbler during the cleaning process.

Unpreventable Employee Misconduct

Southern Hens does not deny the injured employee failed to lock out the Tumbler. 

Rather, it alleges her failure to do so was the result of unpreventable employee misconduct. To 

prevail on the affirmative defense of unpreventable employee misconduct, an employer must 

show that it has (1) established work rules designed to prevent the violation, (2) adequately 

communicated those rules to its employees, (3) taken steps to discover violations, and (4) 

effectively enforced the rules when violations have been discovered. See, e.g., Stark Excavating, 

Inc., 24 BNA OSHC 2218 (Nos. 09-0004 and 09-0005, 2014), citing Manganas Painting Co., 21 

BNA OSHC 1964, 1997 (No. 94-0588, 2007). Southern Hens has failed to meet its burden to 

establish the first two elements of that defense.

As previously discussed, Southern Hens cannot show it had an established rule, 

communicated to employees that, if followed, would have prevented the violation. Contrary to 

Southern Hens’s contention, there was no written policy in place specifying lockout is to be 

performed prior to the scrubbing process. Southern Hens provided no evidence employees were 

so instructed. The general rule to which Southern Hens points is not specific to the Tumbler and 

insufficient to provide guidance to employees. Nor did Southern Hens provide evidence the 

injured employee received these instructions. To the contrary, the only evidence regarding the 

training the injured employee received on cleaning the Tumbler was her testimony she was only 

told to lock out the Tumbler prior to climbing into the drum.

Southern Hens relies on the orientation training received by the injured employee and the 

fact she had attended safety meetings during which lockout was discussed. The Secretary does 

not dispute the injured employee received lockout training when she was first hired and attended 

safety meetings during which lockout was a covered topic (Exh. R-3). All the initial training was 

provided prior to the injured employee being assigned any specific task and was general in 

nature. Safety Coordinator Lee admitted the video used in the initial lockout training is not 
13

specific to Southern Hens’s operations (Tr. 206). There is no evidence regarding the specific 

contents of the safety meetings.12 There is no evidence the injured employee was instructed 

during any of those meetings or her initial lockout training when in the Tumbler cleaning process 

to initiate lockout procedures.

Southern Hens contends the injured employee violated its rule that reads “Keep hands off 

moving machinery.” (Exh. R-37) This contention does nothing to support its affirmative 

defense. The work rule to which an employer points must be designed to prevent the violation 

alleged. Here the violation is the failure to lock out the Tumbler. The rule prohibiting placing 

one’s hand near moving machinery would not have prevented the violation.13

Southern Hens has failed to meet its burden to establish its affirmative defense of 

unpreventable employee misconduct. Item 1b, Citation 1, is affirmed.

Characterization

The Secretary alleges the violation was serious. A violation is serious when “there is a 

substantial probability that death or serious physical harm could result” from the hazardous 

condition at issue. 29 U.S.C. § 666(k). The Secretary need not show that there was a substantial 

probability that an accident would occur; only that if an accident did occur, death or serious 

physical harm would result. As demonstrated by the injured employee’s partial amputation, the 

likely injury should an employee be in the zone of danger while cleaning the Tumbler when it is 

not locked out is serious physical harm. The violation is serious.

Item 2, Citation 1: The Alleged Violation of 29 C.F.R. § 1910.212(a)(1)

The cited standard at 29 C.F.R. § 1910.212(a)(1) reads,

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 

 

12 Southern Hens has the burden to establish it communicated its rules to employees. The only testimony regarding 

training Southern Hens presented was the testimony of Safety Coordinator Lee. Safety Coordinator Lee admitted he 

had no first-hand knowledge of any of the training received by the injured employee (Tr. 234).

13 Southern Hens also suggests the injured employee was distracted by personal matters on the day of the accident. 

As evidence of this, Southern Hens submitted statements written on the night of the accident by Jamie Gibbs, a 

supervisor, and Safety Coordinator Lee (Exh. R-4). I give these statements little weight. According to Safety 

Coordinator Lee, the injured employee was “hysterical” when she made the statements. Supervisor Gibbs’s 

statement indicates the injured employee had started “to go in shock.” (Exh. R-4, p. 1) Comments made under such 

circumstances lack reliability. Nor do they necessarily support Southern Hens’s contention. The injured employee 

admitted she had had an argument prior to reporting for work on the day of the accident. She did not admit any 

resulting distraction caused her to deviate from her standard procedures. To the extent any distraction caused her to 

place her hand close to a moving part, this is exactly the type of hazard from which compliance with the lockout

standard would have protected her. See 54 FR at p. 36646, Example No. 1.
14

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 alleges Chiller No. 2 at Plant No. 3 was not properly guarded. Specifically, CSHO 

Young testified he observed operation of Chiller No. 2 during which product backed up, 

requiring the operator to push the product with his hand. This exposed the employee to an 

ingoing nip point on the underside of the conveyor from which the product dropped. Southern 

Hens contends employees are provided a tool to push the product that prevents exposure to the 

zone of danger. 

Applicability of the Standard

Section 1910.212(a)(1) is found in Subpart O—Machinery and Machine Guarding. 

Section 1910.212 is captioned “General requirements for all machines.” This standard applies to 

all machines not covered by a more specific standard. Southern Hens did not dispute the 

applicability of the standard. To the extent employees are exposed to injury from the ingoing nip

point of the conveyor on Chiller No. 2, it must be guarded under § 1910.212(a)(1). The standard 

applies to the cited conditions.

Employee Exposure

Because § 1910.212(a) is a performance standard, the Secretary must establish the hazard 

addressed by the standard existed. Con Agra Flour Milling Co., 16 BNA OSHC 1137, 1147 

(No. 88-1250, 1993). In this case, the Secretary must establish employee exposure to the ingoing 

nip point of the conveyor.

In Fabricated Metal Products, Inc., 18 BNA OSHC 1072 (No. 93-1853, 1997), the 

Commission considered the question of employee exposure to the hazards posed by inadvertent 

contact with rotating machine parts. The Commission considered its prior holding in Gilles & 

Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976), and Rockwell Inter’l Corp., 9 BNA OSHC 

1092 (No. 12470, 1980). In Gilles & Cotting the Commission addressed the general question of 

employee exposure to hazards. The Commission set forth a test for employee exposure based on 

the principle of “reasonable predictability.” 3 BNA OSHC at 2003. The Commission held that 

the Secretary bore the burden of proving “that employees either while in the course of their 

assigned working duties, their personal comfort activities while on the job, or their normal means 

of ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger.” Id. 

In Rockwell Inter’l Corp., 9 BNA OSHC 1092 (No. 12470, 1980), the Commission specifically 
15

addressed employee exposure to hazards associated with machine operation. The Commission 

held,

The mere fact that it was not impossible for an employee to insert his hands under 

the ram of a machine does not itself prove that the point of operation exposes him 

to injury. Whether the point of operation exposes an employee to injury must be 

determined based on the manner in which the machine functions and how it is 

operated by the employees.

Id. at 1097-98. Based on these two prior holdings, the Commission concluded,

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. We emphasize that, as we stated in Rockwell, the inquiry is simply not 

whether exposure is theoretically possible. Rather, the question is whether 

employee entry into the danger zone is reasonably predictable.

Fabricated Metal Products, 18 BNA OSHC at 1074 (citations omitted). 

The question to be answered is whether employee exposure to the ingoing nip point of 

the conveyor is reasonably predictable. The preponderance of the evidence establishes it was. 

Clearing product from the front of the conveyor was part of the normal operation of Chiller No. 

2. Southern Hens knew product jammed in Chiller No. 2 and the operator cleared these jams “all 

day.” (Tr. 130-32; Exh. C-11) CSHO Young observed the operator performing this task with a 

tool14 and his hands (Tr. 126). He used his hands when he was “getting behind.” (Tr. 126) 

During this process, the employee’s hand came within 1 -2 inches of the ingoing nip point on the 

conveyor. The opening of the ingoing nip point was approximately 1⁄2 inch, sufficient for an 

employee’s finger to become caught (Tr. 127). 

Southern Hens contends operators of the Chiller are not exposed to a hazard because the 

proper way to perform the task of clearing product is to use a 2- to 3-foot metal rake-like tool. 

Southern Hens’s argument fails. Even if using the tool, the employee’s hand would be in 

proximity to the ingoing nip point on the conveyor. Although use of the tool makes the potential 

for injury more remote, it does not eliminate it. That employees would be in proximity to the

unguarded ingoing nip point during normal operations of Chiller No. 2 was reasonably 

predictable.

Southern Hens focuses on the lack of injuries attributable to the cited operation. The 

 

14 The tool is depicted in Exhibit R-28.
16

Commission has held the occurrence or absence of injuries caused by a machine is probative 

evidence of whether the machine presents a hazard. Rockwell Inter’l Corp., 9 BNA OSHC at 

1098. Here, however, the objective facts concerning the operation of the machine show the 

presence of a hazard. The existence of the hazard is not negated by a favorable safety record. A. 

E. Burgess Leather Company, Inc., 5 BNA OSHC 1096, 1097 (No. 12501, 1977), aff’d, 576 F2d 

948 (1st Cir. 1978).

Violation of the Terms of the Standard

The Commission has long recognized the cited standard “requires physical guarding of 

hazards.” B.C. Crocker Cedar Products, 4 BNA OSHC 1775, 1777 (No.4387, 1976); see also 

Slyter Chair, Inc. 4 BNS OSHC 1100, 1113 (No. 1263, 1976); and Western Steel Manufacturing 

Co., 4 BNA OSHC 1640, 1643 (No. 3528, 1976). There is no dispute the ingoing nip point on 

Chiller No. 2 had no physical guard covering it. 

Southern Hens suggests the use of the rake-like tool provided sufficient protection. 

Southern Hens cannot rely on human behavior to protect employees from the hazards addressed 

in the machine guarding standard. In his statement to CSHO Young the employee stated he had 

been told to use the tool but reverted to using his hands because the tool is heavy. The record 

contains no evidence of a rule requiring the tool be used at all times. As the Commission noted 

in B.C. Crocker, the requirement to physically guard employees from hazards of machine 

operations “recognizes that human characteristics such as skill, intelligence, carelessness, and 

fatigue, along with many other qualities play a part in an individual’s job performance, and it 

avoids dependence on human conduct for safety.” 4 BNA OSHC at 1777; see also Akron Brick 

& Block Co., 3 BNA OSHC 1876, 1878 (No. 4859, 1976) (“The plain purposes of the standard 

are to avoid dependence upon human behavior and to provide a safe environment for employees 

in the machine area from the hazards created by the machine’s operation.”); and H.B. Zachry 

Company, 8 BNA OSHC 1669, 1674 (No. 76-2617, 1980) (“Although there is little chance of an 

injury if the machines are operated properly, the standard is plainly intended to eliminate danger 

from unsafe operating procedures.”). Southern Hens cannot rely on employees consistently 

using a heavy hand tool to provide protection from hazards of the Chiller operation.

The Secretary has established Southern Hens violated the terms of the standard.

Employer Knowledge

The Secretary has the burden to establish Southern Hens was aware Chiller No. 2 was not 
17

properly guarded. The Secretary has met that burden. The lack of a physical guard on the 

conveyor would have been easily observed by any management employee passing by the area. 

The identical conveyor next to Chiller No. 2 in the plant had a plastic guard covering the ingoing 

nip point. During the walk around inspection, Scott French, the plant manager, told CSHO 

Young the company was aware of problems with jamming on Chiller No. 2 (Tr. 131-32). 

Southern Hens does not deny it was aware of a need for employees to clear product from the 

front of the conveyor. The company had provided a tool for that purpose. The Chiller Operator 

told CSHO Young he performed that task “all day.” (Tr. 130; Exh. C-11) A reasonably diligent 

employer would have been aware its employees were exposed to the unprotected ingoing nip 

point on the conveyor. The Secretary has established Southern Hens had constructive knowledge 

of the violative condition.

Due Process

Southern Hens raised the affirmative defense that § 1910.212 violates its right to due 

process because it does not specify the means of compliance. I find no merit to Southern Hens 

argument.

When considering remedial legislation such as the OSH Act and its implementing 

regulations, the purported vagueness of a standard is judged not on its face but 

rather in the light of its application to the facts of the case. PBR, Inc. v. Secretary 

of Labor, 643 F.2d 890, 897 (1st Cir. 1981); McLean Trucking Co. v. OSHRC, 

503 F.2d 8, 10-11 (4th Cir. 1974). Moreover, the regulations will pass 

constitutional muster even though they are not drafted with the utmost precision; 

all that due process requires is a fair and reasonable warning. Allis-Chalmers 

Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976). 

Faultless Div., Bliss & Laughlin Ind. v. Secretary of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982). 

When considering the constitutionality of performance standards such as the machine guarding 

standard, the Commission has held such standards “are not constitutionally infirm on due process 

grounds so long as a reasonableness requirement is read into them.” Siemens Energy and

Automation Inc., 20 BNA OSHC 2196, 2198 (No. 00-1052, 2005), citing W. G. Fairfield Co. v. 

OSHRC, 285 F.3d 499, 507 (6th Cir. 2002). “A standard is not invalid merely because an 

employer must exercise reasoning and judgment to decide how to apply the standard in a 

particular situation.” Western Waterproofing Co., 7 BNA OSCH 1625, 1629 (No. 1087, 1979). 

The standard at issue provides sufficient guidance to employers as to its applicability and

compliance requirements. It provides a non-exhaustive list of the types of hazards it is intended 
18

to protect against and methods of compliance. That Southern Hens would have to exercise some 

judgment as to how to best protect its operators from the ingoing nip point hazard does not 

render the standard unconstitutionally vague. Southern Hens’s affirmative defense of lack of due 

process is rejected.

The Secretary has met his burden to establish a violation of § 1910.212(a)(1). Item 2, 

Citation 1, is affirmed.

Characterization

The Secretary alleges the violation was serious. As previously noted, the opening under 

the conveyor that posed the pinch point hazard was large enough for an employee’s finger. 

Movement of the conveyor could draw in an employee’s gloved hand. CSHO Young testified 

such an event could result in amputation. The likely injury should an employee be in the zone of 

danger while operating Chiller No. 2 is serious physical harm. The violation is serious.

Penalty Determination

The Commission, in assessing an appropriate penalty, must give due consideration to the 

gravity of the violation and to the size, history and good faith of the employer. See § 17(j) of the 

Act. The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 

1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 

17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty 

amounts but places no restrictions on the Commission’s authority to raise or lower penalties 

within those limits.”), aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the 

Commission gives due consideration to all of the statutory factors with the gravity of the 

violation being the most significant. 29 U.S.C. § 666(j); Capform Inc., 19 BNA OSHC 1374, 

1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished). “Gravity is a 

principal factor in a penalty determination and is based on the number of employees exposed, 

duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens 

Energy 20 BNA OSHC at 2201.

The gravity of the violation alleged in Item 1b, Citation 1, is high. The injured employee 

testified she cleaned the Tumbler in the same manner every night. Exposure to the hazard of 

moving machine parts was frequent and the likelihood of injury substantial. The severity of the 

possible injury is manifest. A high gravity-based penalty is warranted. Southern Hens is entitled 

to some reduction for its size (700 employees) and lack of history of violations. Although the 
19

company promptly reported the accident and cooperated in the inspection, its response to a prior 

similar injury and to this accident weigh against a significant reduction for good faith. A penalty 

of $7,000.00 is assessed for Item 1b, Citation 1.

Item 2, Citation 1, warrants a less severe penalty. The Chiller Operator was exposed 

nightly during his entire shift. The possible injury was severe, but the possibility of injury 

remote. As Southern Hens points out, it has no history of injury on Chiller No. 2. Southern 

Hens is entitled to consideration for its size and lack of violation history. A penalty of $5,000.00 

is assessed for Item 2, Citation 1.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item 1a of Citation No. 1 is vacated.

2. Item 1b of Citation No. 1, alleging a serious violation of § 1910.147(d)(4)(i), is 

AFFIRMED and a penalty of $7,000.00 is assessed.

3. Item 2 of Citation No. 1, alleging a serious violation of § 1910.212(a)(1), is 

AFFIRMED and a penalty of $5,000.00 is assessed.

SO ORDERED.

/s/

Date: March 20, 2018 HEATHER A. JOYS

 Administrative Law Judge

 Atlanta, Georgia