Some personal identifiers have been redacted for privacy purposes.

 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

OSHRC Docket No. 21-0946 

 

Appearances:

Isabella Finneman and Bryan Kaufman, Department of Labor, Office of Solicitor, Denver, 

Colorado, 

 For Complainant 

Kristin White and J. Micah Dickie, Fisher Phillips, LLP, Denver, Colorado, 

 For Respondent 

Before: Judge Christopher D. Helms – U. S. Administrative Law Judge 

DECISION AND ORDER

I. Procedural History

On June 11, 2021, employee [redacted] was operating a meat grinder at a retail grocery 

store owned by Respondent Good Food Concepts, LLC d/b/a/ Ranch Foods Direct (Ranch Foods 

or Respondent), when her hand got caught in the grinder. The accident resulted in the amputation 

of four of her fingers. In response to an accident complaint, the Occupational Safety and Health 

Administration (OSHA) sent Compliance Safety and Health Officer (CSHO) David Morris to 

conduct a worksite inspection on June 15, 2021. As a result of the inspection, the Secretary of 

Labor (Secretary) issued two citations. Only Citation 1, Item 1 and Citation 2, Item 2 are relevant 

to this case. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

GOOD FOOD CONCEPTS, LLC d/b/a 

RANCH FOODS DIRECT,

 

 Respondent.
2

Citation 1, Item 1 alleges a Serious violation of 29 C.F.R. § 1910.212(a)(1) for failing to 

provide a machine guard on the meat grinder. Citation 2, Item 2 alleges an Other-Than-Serious 

violation of 29 C.F.R. § 1904.39(a)(2) for failing to report within 24 hours a work-related incident 

resulting in an in-patient hospitalization. The proposed penalty for Citation 1, Item 1 is $9,557, 

and the proposed penalty for Citation 2, Item 2 is $6,827. 

Ranch Foods filed a timely notice of contest, bringing the matter before the Occupational 

Safety and Health Review Commission (Commission). The Chief Administrative Law Judge 

designated this matter for conventional proceedings and assigned it to this Court on November 29, 

2021. A trial was held on September 22-23, 2022. The following individuals testified: (1) Jonathan 

Morrill, the General Manager for the retail store; (2) [redacted], the injured employee; (3) Roger 

Wichman, Head Meat Cutter at the retail store; (4) Michael Callicrate, owner of Ranch Foods; (5) 

[redacted], Ms. [redacted]’s husband; (6) CSHO David Morris; (7) Bobbi Jo Kirby, an employee

of Ranch Foods; and (8) Liesl Taylor, an employee of Ranch Foods. 

After the trial concluded, both parties timely filed post-trial briefs, which were considered 

by the Court in reaching its decision. Pursuant to Commission Rule 90, after hearing and carefully 

considering all the evidence and the arguments of counsel, the Court issues this Decision and Order 

as its findings of fact and conclusions of law. 

 For the reasons discussed, both Citations are AFFIRMED. 

II. Stipulations & Jurisdiction

The parties stipulated to several matters, including the jurisdiction of this Court over this

proceeding and the parties before it. See Joint Stipulation Statement (J. Stip.) 1, 2. The parties 

submitted the Joint Stipulation Statement to the Court prior to trial and entered the stipulations 
3

into the record. (Tr. 10). The Court shall incorporate by reference the Joint Stipulations and refer 

to them as necessary in this decision. 

III. Factual Background 

A. Ranch Foods & the Fillmore Street Store

Ranch Foods was a meat processing business owned by Michael Callicrate, who has been 

working in the meat industry for over 20 years. (Tr. 410). Ranch Foods operated a retail store 

located at 1228 E. Fillmore Street, Colorado Springs, Colorado (Fillmore Street store), which sold 

fresh beef and other meat products directly to consumers and consisted of a retail section, a butcher, 

and a kitchen. (Tr. 27-28, 82-83, 410). When he was in town, Mr. Callicrate visited the store twice 

a day, four to five times a week, and on some mornings, he would observe the meat grinder being 

used. (Tr. 424, 428). He oversaw operations of the store but delegated management and 

supervision, including discipline of employees, to John Morrilland John Wichman. (Tr. 425-26). 

In June 2021, Mr. Morrill was the General Manager of the Fillmore Street store, and he 

had been in that position for 3 1⁄2 years.1 (Tr. 30). He visited the Fillmore Street store every day to 

pick up receipts from the night before and talk with employees about any issues or needs. (Tr. 

97-98). Mr. Wichman was the head of the meat department, and he was a 17-year employee of 

Ranch Foods with over 50 years of experience in the meat industry. (Tr. 285, 360). There were 13 

to 15 employees at the Fillmore Street store in June 2021, and the meat department consisted of 

Mr. Wichman, Ms. [redacted], and John Niccocia, an employee with over 50 years of experience 

in the meat industry. (Tr. 29, 82, 109). 

1

 Mr. Morrill had previously worked for Ranch Foods as a bookkeeper between 2008 and 2015. 

(Tr. 40).
4

B. Oversight, Safety & Training 

Mr. Morrill was charged with ensuring safety compliance and discipline at the Fillmore 

Street store, and he had the authority to remove employees for safety violations. (Tr. 30, 37). 

Although Mr. Morrill was the General Manager and visited the store every day, he never conducted 

an internal safety audit or checked the equipment in the meat department for safety issues because 

his daily visits were not geared toward looking for safety issues. (Tr. 38, 39, 98). If any equipment 

was not operating properly or posed any safety issues, he expected his employees to report those 

problems to him and stop using the machine. (Tr. 40, 101). Mr. Morrill and other supervisors at 

Ranch Foods relied on “observation by managers and other employees” to ensure that employees 

were working safely, although safety violations were not documented unless disciplinary action 

was required. (Tr. 35, 96, 115-116). Ranch Foods also posted a Code of Safe Practices in a common 

area, along with labor law posters and the weekly schedule. (Tr. 88, 89). 

Ranch Foods did not have a formal safety and health training plan for new meat cutting

employees. (Tr. 33-35, 185-86, 302-03). Employees were given a handbook, which included a

general disciplinary policy, but specific safety and equipment training was left to the employees’ 

immediate supervisor. (Tr. 35, 93, 94, Ex. R-14). Mr. Wichman supervised the meat department 

and trained new meat-cutters, including Ms. [redacted]. (Tr. 86, 101, 300). He provided hands-on 

instruction regarding the operation of meat cutting tools and machinery, and he was responsible 

for ensuring that meat cutting employees were operating the machinery in a safe manner. (Tr. 35, 

186, 199). 

In June 2021, Ms. [redacted] had been employed at Ranch Foods for three years. (Tr. 177). 

She started her employment as a cashier and, a year and a half later, joined the meat department

after expressing an interest in learning the trade. (Tr. 182-84). Mr. Wichman trained Ms. [redacted]
5

how to operate the meat grinder, and he taught her how to use a stomper—an 18-inch cylindrical 

tool that pushed pieces of meat down the throat of the grinder—as well as how to disassemble and 

clean the grinder’s components. (Tr. 201-02, 233, 301, 314, 368). 

The meat grinder jammed frequently, so Mr. Wichman also trained Ms. [redacted] on how 

to clear a jam by reversing it and then allowing the machine to run again. (Tr. 206, 208, 370). If 

the jam did not clear, the operator was expected to disassemble the machine and clean it. (Tr. 368). 

Mr. Wichman taught Ms. [redacted] to use safety gloves while cutting meat and to wear a hair net.

(Tr. 303). He did not use any videos or written materials when training Ms. [redacted] on the meat 

grinder, nor did he review the grinder’s manual or documents published by OSHA that explained 

how to safely use a meat grinder. (Tr. 199, 205-06, 307, 324).

The grinder involved in the accident consisted of a hopper, a throat, the auger, and a 

rotating blade. (Tr. 527-28). The operator would place chunks of meat in the hopper and push the 

meat with her hands toward the entrance of the throat of the grinder, at the bottom of which was 

the auger and blades that ground the meat. (Tr. 202, 232, 314). The operator could use a stomper 

to push the meat down the throat of the grinder, which was 3 inches wide and measured 4 3⁄4 inches 

in length. (Tr. 72, 74, 202). Sometimes an operator would use her fingers to dislodge meat from 

the walls of the throat when the stomper was ineffective. (Tr. 234, 269). 

Mr. Wichman trained Ms. [redacted] to avoid using her fingers to push meat down the 

throat of the grinder. (Tr. 244-45). However, despite knowing it was dangerous, he frequently used 

his own fingers to reach up to 2 inches into the throat of the grinder because he “felt safe and 

comfortable” doing so based on his years of experience. (Tr. 316-18, 320) Mr. Wichman testified 

he knew his employees saw him put his fingers in the throat, but he would advise his employees 

not to do so because it was unsafe. (Tr. 245, 322). The prohibition on using one’s fingers to push 
6

meat into the throat of the grinder was not a written rule, and Mr. Wichman never formally 

reprimanded anyone for doing it. (Tr. 275). In the six months prior to the accident, no one had 

been disciplined for the improper use of meat cutting equipment or using fingers in the operation 

of the meat grinder, despite its common practice among the meat grinder’s operators. (Tr. 203, 

270, 437). 

C. The Accident & Hospitalization

On the morning of June 11, 2021, Ms. [redacted] was operating the meat grinder when it 

jammed. (Tr. 220). She tried to reverse the machine, but it did not work. (Tr. 220). She then noticed 

extra meat on the side of the throat, so she reached into the throat to push it toward the auger, at 

which time her hand was caught and pulled into the grinder. (Tr. 220). Mr. Wichman, who was in 

the room, unplugged the grinder, and other employees called an ambulance. (Tr. 225, 338). Mr. 

Crutcher, the Facilities Manager, was at the Fillmore Street store that day, and he tried to comfort 

Ms. [redacted] until the ambulance arrived. (Tr. 340, 413). Once the paramedics saw Ms. 

[redacted]’s condition, they debated whether to apply a tourniquet to Ms. [redacted]’s arm. (Tr. 

346). Mr. Wichman testified that overhearing this conversation made him realize the seriousness 

of the injury. (Tr. 346-47). The paramedics ultimately transported Ms. [redacted], along with the 

grinder, to Penrose Emergency Hospital, where she was admitted as in-patient at 12:10 p.m. (J. 

Stip. 8, 10). At 1:36 p.m., Ms. [redacted] underwent emergency surgery, at which time the surgical 

team reversed the meat grinder’s motor, freed Ms. [redacted]’s hand, and amputated four fingers. 

(Id. at 10). That evening, Ms. [redacted] was discharged from Penrose Hospital and transferred to 

Presbyterian/St. Luke’s Medical Center in Denver, Colorado, where she remained hospitalized 

until June 18, 2021. (Id. at 12). 
7

Mr. Crutcher notified Mr. Callicrate of the accident shortly after it occurred, and Mr. 

Callicrate went to Penrose Hospital, where he spoke with Ms. [redacted]’s husband, Mr.

[redacted]. (Tr. 415, 417-419). Mr. [redacted] testified that he told Mr. Callicrate that Ms. 

[redacted] was in surgery. (Tr. 489). Mr. Callicrate gave Mr. [redacted] his business card before 

leaving the hospital and asked Mr. [redacted] to keep him informed of Ms. [redacted]’s condition. 

(Tr. 419). Mr. Callicrate did not obtain Mr. [redacted]’s contact information, nor did he ever 

attempt to contact Ms. [redacted] or her husband to inquire about Ms. [redacted]’s condition. (Tr. 

421, 428-429, 493).

On June 12, 2021, Mr. Wichman called Mr. [redacted] to express how sorry he was about 

the accident and to ask whether he could help in any way. (Tr. 352). Mr. [redacted] told Mr. 

Wichman that the injuries were “bad,” and Mr. Wichman speculated that she had lost the tips of 

her fingers. (Tr. 353). 

Mr. Morrill learned about the accident around midday on July 11, 2021, when he received 

a voicemail from Mr. Crutcher. (Tr. 61). He visited the Fillmore Street store later that day and

discussed what happened with the employees. (Tr. 62). He learned that Ms. [redacted]’s hand was 

caught in the grinder and that she was in the emergency room. (Tr. 62). However, he did not go to 

the hospital and, despite a history of communicating with Ms. [redacted] about attendance and 

injuries, he did not take any proactive measures to learn the extent of Ms. [redacted]’s condition

in the days following the accident. (Tr. 66). On June 14, 2021, Mr. Morrill texted Ms. [redacted]

to express how badly he felt about her accident; however, he did not inquire about her injuries, 

attendance, or hospitalization. (Tr. 63, 64, 493, Ex. R-20). That same day, Mr. Morrill informed

Workers’ Compensation that Ms. [redacted] had been hospitalized for more than 24 hours, at 

which time he knew she had suffered an amputation injury. (Tr. 64, 65). 
8

D. Inspection & Citation

 CSHO Morris conducted an inspection of the Fillmore Street store on June 15, 2021, after 

OSHA received a complaint allegation that an employee lost four fingers in a meat grinder

accident. (Tr. 519). He inspected the site and meat grinder, took photographs of the meat grinder, 

and conducted interviews with Mr. Morrill and Mr. Wichman. (Tr. 524-25). The CSHO ultimately 

concluded that Ranch Foods failed to provide a method of guarding the meat grinder to protect the 

operator from hazards related to the point of operation, ingoing nip points or rotating parts, in 

violation of 29 C.F.R. § 1910.212(a)(1). (Tr. 556-57). He further concluded that Ranch Foods 

failed to report the accident to OSHA within 24 hours of an accident requiring hospitalization, in 

violation of 29 C.F. R. § 1904.39(a)(2). (Tr. 571). 

IV. Discussion

To establish the violation of a safety standard under the Occupational Safety and Health 

Act of 1970, 29 U.S.C. §§ 651–678 (the Act), the Secretary must prove by a preponderance of the 

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

standard; (3) employees had access to the hazardous condition covered by the standard; and (4) the 

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

condition. Atl. Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). The Secretary has 

the burden of establishing each element by a preponderance of the evidence. Hartford Roofing 

Co., 17 BNA OSHC 1361, 1365 (No. 92-3855, 1995). 

A. Citation 1, Item 1

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1910.212(a)(1), which provides: 

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 created by 

point of operation, ingoing nip points, rotating parts, flying chips and sparks. 
9

Examples of guarding methods are - barrier guards, two-hand tripping devices, 

electronic safety devices, etc. 

The Secretary describes the serious violation as follows: 

On or before 6/11/21 the employer did not ensure that the meat grinder was guarded 

effectively or that tools other than hands were used for pushing small amounts of 

meat through the grinder when the stomper supplied by the employer was unable 

to push meat through the grinder. An employee lost four fingers of their right hand 

when trying to push meat through when the stomper was not effective. This 

condition exposed employees to amputation and crushing hazards. 

Citation at 6.

1. The Standard Applies 

To establish applicability of the standard, the Secretary must show that, in the case of 

machine guarding, the employee is exposed to the hazard “from the way the machine functions 

and how it operates.” Dentsply US Prosthetics, LLC, No. 16-0140, 2017 WL 7038046, at *2

(OSHRC ALJ Aug. 15, 2017) (citing Ladish Co., 10 BNA OSHC 1235 (No. 78-1384, 1981) (“the 

cited standard is generally applicable according to its terms to the hazards presented by the moving 

parts of all types of industrial machinery”). Here, the Court concludes that 29 C.F.R. 

§ 1910.212(a)(1) squarely applies to the meat grinder at issue. Specifically, the meat grinder 

presented a point of operation, ingoing nip point, and rotating parts hazards with the potential to 

cause serious injury, and Ranch Foods was required to provide one or more methods of machine 

guarding to protect the operator from those hazards. 

Ranch Foods contends that the standard does not apply because the hazard identified by 

the Secretary was the result of activities covered by the lockout/tagout (LOTO) standard, 29 C.F.R. 

§ 1910.147, which applies to “the servicing and maintenance of machines and equipment in which 

the unexpected energization or startup of the machines or equipment, or release of stored energy 

could cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)(i). Ranch Foods argues that Ms. 
10

[redacted] was clearing a jam when she was injured, which constitutes a service or maintenance 

activity. It contends that Ms. [redacted] should have locked out the machine, and her failure to do 

so resulted in injury. 

 The issue before the Court is whether Ms. [redacted]’s attempt to clear the jam constitutes

“servicing and maintenance,” or whether it occurred in the course of “normal production 

operations.” The LOTO standard may apply to a jam in a machine. See 29 C.F.R. § 1910.147(b) 

(in the definition section of the LOTO standard, “servicing and/or maintenance” includes “cleaning 

and unjamming of machines or equipment”); see also Otis Elevator Co. v. Sec’y of Labor, 762 

F.3d 116, 121 (D.C. Cir. 2014) (finding the repair of an elevator’s jammed chain violated the

LOTO standard). However, its application is limited to activities “outside of normal production 

operations.” Sec’y, U.S. Dept of Labor v. Action Elec. Co., 868 F.3d 1324, 1336 (11th Cir. 2017). 

“Normal production operations” is “the utilization of a machine or equipment to perform its 

intended production function.” 29 C.F.R. § 1910.147(b). 

The Commission discussed the distinction between “servicing and maintenance activities” 

and “normal production operations” in Westvaco Corp., which involved an injury during a 

machine’s set-up. No. 90-1341, 1993 WL 369040, at *5 (OSHRC Sept. 14, 1993). The 

Commission agreed with the Administrative Law Judge’s determination that “work performed on 

the machine while the machine is not being operated to actually produce its product is either 

servicing or maintenance”. Id. at *4. It concluded that the operator’s adjustments in that case 

occurred before normal production operations and thus fell within the definition of servicing or 

maintenance. Id. at *6. The critical fact was that the employee’s actions occurred prior to—not 

during—the operation of the machine. Id. 
11

Here, the Court concludes that Ms. [redacted]’s unjamming of the machine fell within the 

grinder’s “normal production operations.” Jams in the meat grinder were common. Mr. [redacted]

was actively operating the grinder when it jammed. She reached into the throat to dislodge some 

meat and give the grinder something to catch when she put the grinder into reverse and forward 

again. Putting the grinder in reverse is how Ms. [redacted] was trained to clear a jam while 

operating the grinder, and the use of her fingers to dislodge meat from the throat of the grinder 

was a tactic she learned from Mr. Wichman. Under the facts of this case, unjamming the machine 

was not a maintenance or servicing activity; instead, it occurred during the grinder’s normal 

production operations. Accordingly, the LOTO standard does not apply here, and instead the 

machine guarding standard applies. See Roy Rock, LLC, No. 18-0068, 2021 WL 3624785, at *3 

(OSHRC, July 22, 2021) (holding that the LOTO standard did not apply because the operator “was 

still working on the machine” and his removal of a cylinder was unrelated to the machine’s “care” 

or “upkeep”).

2. The Secretary Established Violation of the Standard and Exposure to the Hazard 

 The elements of noncompliance and exposure overlap with one another in cases involving 

machine guarding. Aerospace Testing All., No. 16-1167, 2020 WL 5815499, at *6, n3 (OSHRC, 

Sept. 21, 2020). Generally, the method of machine guarding “should not be predominantly 

dependent upon human behavior.” Akron Brick and Block Co., No. 4859, 1976 WL 5896, at *2

(OSHRC, Jan 14, 1976). Instead, the purpose of the standard is to “avoid dependence upon human 

behavior and to provide a safe environment for employees” operating machinery, regardless of 

their intelligence, skills, and tendency to neglect a specified course of conduct. Id. (citing Hartford 

Accident & Indem. Co. v. Cardillo, 112 F.2d 11,15 (D.C. Cir. 1940)). The occurrence of an actual 

injury is probative of whether a machine presents a hazard, although it is not conclusive. A.E. 
12

Burgess Leather Co., Inc., 5 BNA OSHC 1096, 1097 (No. 12501, 1977) aff’d, 576 F.2d 948 (1st 

Cir. 1978) (holding that actual exposure to a hazard was not negated by a favorable safety record). 

Ranch Foods maintains that it complied with the machine guarding standard because the 

meat grinder was guarded by design and prevented an employee’s exposure to the hazard. 

Specifically, Ranch Foods argues that the length of the throat protected the operator by distance 

and the narrow width of the throat ensured that an adult’s hand could not enter the zone of danger. 

Ranch Foods also argues that operators were given a stomper, which avoided the use of an 

operator’s fingers when pushing meat into the throat of the grinder, and that operators were warned 

against using their fingers inside the throat. 

The Court concludes that Ranch Foods violated the machine guarding standard and, as a 

result, employees were exposed to a hazard. The operation of the grinder demonstrates the presence 

of a hazard, i.e., the auger and blades, which exposed the operator to significant risk of amputation. 

The fact that an accident involving the grinder had not previously occurred does not negate the 

presence of the hazard. A.E. Burgess Leather Co. v. OSHRC, 576 F.2d at 1097 (internal citations 

omitted); see also Lee Way Motor Freight, Inc. v. Sec’y of Labor, 511 F.2d 864, 870 (10th Cir. 

1975) (“One purpose of the Act is to prevent the first accident.”). Although Ranch Foods provided 

operators with a stomper, the standard expressly prohibits tools to be used in lieu of a guard. 29 

C.F.R. § 1910.212(a)(3)(iii). Similarly, § 1910.212(a)(1) does not permit guarding by work rules. 

See Akron Brick & Block Co., No. 4859, 1976 WL 5896, at *3 (OSHRC, Jan. 14, 1076) (holding 

that work rules relating to the use of a safety switch and hook were not a method of guarding 

contemplated by § 1910.212(a)(1)); see also Gen. Elec. Co., 10 BNA OSHC 1687, 1690 (No. 

98-1107, 2001) (holding the point of operation must have a physical guard that does not depend 

upon correct employee behavior). 
13

Moreover, the design of the throat was insufficient to satisfy the requirements of the 

standard. To establish the exposure to a hazard required for noncompliance, 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.” Fabricated Metal 

Prods., Inc., 18 BNA OSHC 1072, 1073–74 (No. 93-1853, 1997). The element of exposure is not 

an inquiry into the theoretical; rather, the Court must determine whether employee entry into the 

zone of danger is reasonably predictable. Id. (internal citation omitted); see also S. Hens, Inc. v. 

OSHRC, 930 F.3d 667, 681 (5th Cir. 2019) (affirming ALJ’s determination that exposure to the 

hazard was reasonably predictable by operational necessity because there was no guard on the 

conveyor, jams occurred frequently, operators were expected to clear the jams, and the tool 

provided was too heavy to use in all instances, resulting in the employees’ fingers getting within 

an inch or two of the nip point). 

Here, an employee suffered a serious accident in her operation of the grinder due to the 

lack of a guard. Although not conclusive, the fact that Ms. [redacted] was able to access the zone

of danger is probative of exposure. And, that exposure should have been reasonably foreseeable. 

When operating the grinder, employees put their hands in the hopper, which was approximately 

one inch above the top of the grinder’s throat. The testimony at trial demonstrated that all three 

employees who used the meat grinder inserted their fingers one to two inches inside the throat of 

the grinder when they were unable to dislodge meat from the side of the throat. This would put 

their fingers within 2 to 4 inches from the rotating auger. The Court concludes that the practice 

was so common that it should have been reasonably foreseeable that an operator would, by 

necessity or inadvertence, put their hands within the zone of danger. See Oberdorfer Indus., Inc., 

No. 97-0469, 2003 WL 22060459, at *7 (OSHRC Aug. 29, 2003) (consolidated) (holding that 
14

evidence of the operators’ hands being three to eight inches from the unguarded rotating chucks 

clearly established exposure to a hazard). 

Ranch Foods argues that there was no history of employees getting hurt from exposure to 

a hazard presented by the meat grinder. However, the occurrence of only one accident does not 

negate the fact that the operator’s fingers were routinely in the zone of danger and exposed to a 

hazard during the operation of the machine. See S. Hens, Inc., 930 F.3d at 681–82 (“The lack of 

injury history does not change the readily evident fact that a machine with a nip point lacked a 

physical guard.”). Thus, the Secretary established violation of the standard and exposure to the 

hazard. 

3. The Secretary Established that Ranch Foods Knew or Should Have Known of the 

Hazardous Condition 

To establish knowledge, the Secretary must show by a preponderance of the evidence “that 

the employer knew of the hazardous condition, or could have known through the exercise of 

reasonable diligence.” Mountain States Contractors, LLC v. Perez, 825 F.3d 274, 283 (6th Cir. 

2016) (internal citation omitted). “When considering the question of reasonable diligence, the ALJ

looks to a number of factors including: ‘an employer’s obligation to inspect the work area, to 

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

occurrence.’ ” Id. at 285 (quoting Kokosing Constr. Co. v. OSHRC, 232 F. App’x 510, 512 (6th

Cir. 2007) (unpublished)). The Court also considers whether the employer has adequate work rules 

and training programs and has adequately supervised its employees. Precision Concrete Constr., 

19 BNA OSHC 1404, 1407 (No. 99-0707, 2001) (internal citation omitted); see also ComTran 

Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307–08 (11th Cir. 2013) (holding that an 

employer’s failure to implement an adequate safety program can show knowledge because, in the 

absence of a program, violation of safety rules is reasonably foreseeable). 
15

Generally, the knowledge of a supervisor or foreman can be imputed to the company. See 

Jersey Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3d Cir. 

1994) (unpublished) (imputing constructive knowledge of supervisor to the company). However, 

this becomes more complicated when the supervisor himself is engaging in misconduct. In those 

circumstances, the supervisor’s violation of safety rules cannot be imputed to the employer and 

the Secretary must instead establish the employer’s actual or constructive knowledge based on 

whether the supervisor’s misconduct was foreseeable. W.G. Yates & Sons Constr. Co. Inc. v. 

OSHRC, 459 F.3d 604, 609 n.8 (5th Cir. 2006); see also Mountain States Tel. & Tel. Co. v. 

OSHRC, 623 F.2d 155, 158 (10th Cir. 1980) (same). “The Secretary can meet this burden by 

showing that the violation was foreseeable because of inadequacies in safety precautions, training 

of employees, or supervision.” Cap. Elec. Line Builders of Kan., Inc. v. Marshall, 678 F.2d 128, 

130 (10th Cir. 1982).2

Here, Mr. Wichman testified that he knew the meat grinder was a dangerous machine and 

that placing his fingers into the throat of the grinder was unsafe. He expressly admitted that 

although no one should insert their fingers into the throat, he routinely did so in his operation of 

the grinder. Moreover, the testimony demonstrates that employees who operated the meat grinder 

2 The Court notes that there is a split between the Commission and some circuits on this issue. 

Compare Revoli Constr No. 00-0315, 2001 WL 1568807, at *3-4) (finding “actual or constructive 

knowledge of an employer’s foreman or supervisor can be imputed to the employer”)

with Mountain States Tel. and Tel. Co. v. OSHRC, 623 F.2d 155, 158 (10th Cir. 1980) (holding 

that knowledge cannot be imputed to an employer when the noncomplying behavior is the 

supervisor’s own). Since the Tenth Circuit could consider the matter if a petition for review were 

to be field, the Court relies on the precedent in that circuit. See Kerns Bros. Tree Serv., No. 

96-1719, 2000 WL 294514, at *4 (OSHRC, Mar. 16, 2000) (“Where it is highly probable that a 

Commission decision would be appealed to a particular circuit, the Commission has generally 

applied the precedent of that circuit in deciding the case – even though it may differ from the 

Commission’s precedent.”)
16

regularly inserted their fingers in the throat of the grinder to knock meat down into the auger, 

which would have been easily observed by Mr. Wichman or other Ranch Foods management.

 Further, the misconduct by Mr. Wichman was reasonably foreseeable. The record shows 

that Ranch Foods did not have effective safety training or rules in place. W. G. Yates, 459 F.3d at 

609 n.8 (holding that evidence of lax safety standards rendered the supervisor’s violation of safety 

rules foreseeable). Ranch Foods did not give a training or safety manual to employees operating 

the meat grinder. Management did not observe the operation of the meat grinder for safety, nor did 

management oversee Mr. Wichman’s training of new employees. Hamilton Fixture, 16 BNA 

OSHC 1079, 1087 (No. 88-1720, 1993) (citation omitted), aff’d, 28 F.3d 213 (6th Cir. 1994)

(holding that an employer’s obligation to inspect its workplace for hazards “requires a careful and 

critical examination, and is not satisfied by a mere opportunity to view equipment.”). Discipline 

or reprimands, if issued, were not formally documented, and no employee was cited for any safety 

rules violations while operating the meat grinder. The inadequacies of Ranch Foods’ safety 

training and precautions established that Mr. Wichman’s own violation of safety rules was 

foreseeable.

 Moreover, Mr. Morrill as the general manager had the responsibility to ensure that his 

employees worked safely, and he could discipline actions that were unsafe. Yet, he failed to 

examine the machines at the worksite, did not observe employees using the grinder, and did not 

check the equipment for safe operation. Although Mr. Morrill testified that he relied on his 

employees to act safely and report any safety issues with the machines, an employer cannot simply 

delegate the duty of safety to its employees. See PBR, Inc. v. Sec'y of Labor, 643 F.2d 890, 895 

(1st Cir. 1981) (“[The employer] cannot escape responsibility for the violation because it warned 
17

its employees to exercise caution. Such delegation of employee safety to the employees themselves 

is clearly inconsistent with the purposes and policies of the Act.”). 

The Court concludes that the Secretary has met her burden to demonstrate that the standard 

applied and was violated, which exposed employees to a hazard. The Court further concludes that 

Ranch Foods knew or could have known of the hazard with the exercise of reasonable diligence. 

Lastly, the Court notes that there is no dispute over the classification of Citation 1 Item 1 as 

Serious. Under section 17(k) of the Act, 29 U.S.C. § 666(k), a violation is serious if there is a 

substantial probability that death or serious physical harm could result. Conagra Flour Milling 

Co., No. 88-2572, 1992 WL 215113, at *7 (OSHRC, Aug. 18, 1992). That threshold is met here. 

 Accordingly, the Court now turns to the affirmative defense advanced by Ranch Foods: 

unpreventable employee misconduct.

4. Ranch Foods Failed to Establish Unpreventable Employee Misconduct 

Ranch Foods argues that Ms. [redacted]’s intentional act of trying to unjam the grinder 

without ensuring it was locked out was employee misconduct. It argues in the alternative that Ms. 

[redacted]’s act of pushing meat down the throat of the grinder rather than using the stomper was 

unpreventable employee misconduct because she engaged in that misconduct despite being trained 

to use the stomper and how to operate and unjam the grinder safely. 

To establish the defense of unpreventable employee misconduct, the burden shifts to the 

employer to show that it had: (1) established work rules designed to prevent the violative 

conditions from occurring; (2) adequately communicated those rules to its employees; (3) took 

steps to discover violations of those rules; and (4) effectively enforced the rules when violations 

were discovered. Manganas Painting Co., Inc., No. 94-0588, 2007 WL 6113032, at *40 (OSHRC, 

Mar. 23, 2007). When the alleged misconduct is that of a supervisor, the proof of “unpreventable 
18

employee misconduct” is more rigorous and more difficult to establish since it is the supervisor’s 

duty to protect the safety of employees under his supervision. Archer-W. Contractors Ltd., No. 87-

1067, 1991 WL 81020, at *5 (OSHRC, Apr. 30, 1991). Involvement by a supervisor in a violation 

is “strong evidence that the employer’s safety program was lax.” Daniel Constr. Co., 10 BNA 

OSHC 1549, 1552 (No. 16265, 1982). 

 “The conventional way to prove the enforcement element is for the employer to introduce 

evidence of a disciplinary program by which the company reasonably expects to influence the 

behavior of employees.” Precast Servs., Inc., No. 93-2971, 1995 WL 693954, at *1 (OSHRC, Nov. 

14, 1995). “For instance, an employer may provide evidence of a progressive disciplinary plan 

consisting of increasingly harsh measures taken against employees who violate the work rule.” Id. 

(citing Asplundh Tree Expert Co., No. 16162, 1979 WL 8540, at *7 (OSHRC, Dec. 31, 1979) 

(employer introduced evidence of company policy calling for a stern oral or written reprimand for 

the first violation, followed by discharge for a second violation)). This requires evidence that an 

employer enforced its safety rules and documented safety violations committed by its employees. 

See Angel Bros Enters., Ltd. v. Walsh, 18 F.4th 827, 832 (5th Cir. 2021) (holding that despite the 

existence of work rules and proactive steps taken to discover violations, the employer was unable 

to show documentary evidence that it enforced its safety rules upon discovering violations).

Here, the Court concludes that Ranch Foods had limited safety rules in place and was lax 

in the enforcement of those rules. If management issued warnings to employees, they were given 

verbally, and there was no requirement for documentation of work rule violations. Moreover, there 

is no evidence in the record that any Ranch Foods employees was ever actually reprimanded or 

disciplined for safety violations in their operation of the meat grinder. 
19

In addition, the record shows that Ranch Foods management did not take steps to discover 

violations of work rules. Employees, including the meat department supervisor, reported that they 

routinely used their fingers to push meat into the throat of the grinder. Mr. Callicrate and Mr. 

Morrill had ample opportunity to observe the operation of meat cutting machinery and correct any 

behavior that violated safety rules. However, they did not get involved in determining whether the 

machinery was operating safely or address the meat grinder’s frequent jamming issues. The failure 

of management to conduct safety reviews or observe the operation of the meat grinder is fatal to 

Ranch Foods’ employee misconduct defense. 

 Accordingly, the Court AFFIRMS Citation 1, Item 1.

B. Citation 2, Item 2 

Citation 2, Item 2 alleges an Other-Than-Serious violation of 29 C.F.R. § 1904.39(a)(2), a 

reporting standard, which provides: 

Within twenty-four (24) hours after the in-patient hospitalization of one or more 

employees or an employee's amputation or an employee’s loss of an eye, as a result 

of a work-related incident, you must report the in-patient hospitalization, 

amputation, or loss of an eye to OSHA. 

The Secretary describes the serious violation as follows:

On or before 6/11/21 the employer did not report a work related amputation 

resulting in inpatient hospitalization to OSHA as required by this standard. 

Citation at 10. 

It is undisputed that Ms. [redacted] suffered a serious injury that resulted in the amputation 

of four fingers and in-patient hospitalization. (J. Stip. ¶ 10). It is also undisputed that Ranch Foods 

did not report the in-patient hospitalization to OSHA, thus violating the standard. The only inquiry 

left for the Court is to determine whether Ranch Foods had actual or constructive knowledge of 

Ms. [redacted]’s hospitalization and amputation injury, thus triggering its obligation to report. 
20

The reporting requirements “provide the Secretary with prompt notification of serious 

accidents so that [s]he can take timely action to avoid further injuries.” Lancaster Colony Corp., 

Candle-lite Div., No. 92-0958, 1993 WL 119644, at *3 (OSHRC ALJ, Apr. 5, 1993) (internal 

citation omitted). The Commission has found an employer to be in violation of the reporting 

standard even where the employer made a good faith effort to report an accident but reported it to 

state and local authorities instead. See, e.g., F. F. Green Constr. Co., Inc., No. 1015, 1973 WL 

4269, at *6 (OSHRC Nov. 26, 1973) (finding a violation of the reporting requirement where the 

employer reported the accident to a third party, even though the third party then timely notified 

the nearest OSHA office).

Here, the record demonstrates that management made no effort to report the accident to 

OSHA, despite its awareness of the accident and its severity. Mr. Wichman was in the room when 

the accident occurred, and he observed Ms. [redacted]’s inability to extract her hand from the 

grinder. He testified that he overheard the paramedics debating whether to apply a tourniquet to 

her arm, which gave him a strong indication that her injuries were severe and may involve 

amputation. Mr. Wichman spoke with Mr. [redacted] the day after the accident, at which time he

learned that the injuries were “bad.” 

Mr. Callicrate and Mr. Morrill had ample opportunity to learn the extent of Ms. [redacted]’s 

injuries and whether she was admitted in-patient at the hospital. Mr. Callicrate was at the hospital 

within hours of the accident, at which time he could have made serious inquiries as to Ms. 

[redacted]’s condition and treatment plan. Mr. Callicrate also spoke with employees of the 

Fillmore Street store after the accident, which would have informed him of the severity of the 

accident. Yet, Mr. Callicrate made no effort to ask about Ms. [redacted]’s condition, including

whether she would be able to return to work. Similarly, Mr. Morrill spoke with the Fillmore Street 
21

store’s employees shortly after the accident and should have been aware of the severity of the 

accident. Yet, he failed to contact Ms. [redacted] or her husband until three days after the accident, 

despite previously being in regular contact with Ms. [redacted] regarding her attendance and time 

off requests. 

Management, with the exercise of reasonable diligence, could have learned within 24 hours 

of the accident that Ms. [redacted] suffered an amputation and was admitted in-patient at the 

hospital. However, it failed to conduct any sort of investigation. An employer cannot escape 

liability for violating a reporting standard by failing to make reasonable efforts to gather 

information and make inquiries about an employee’s condition and hospitalization. 

Citation 2, Item 2 is AFFIRMED. 

ORDER

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. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1910.212(a)(1) is 

AFFIRMED, and a penalty of $9,557 is ASSESSED.

2. Citation 2, Item 2, alleging an Other-Than-Serious violation of 29 C.F.R. § 1904.39(a)(2)

is AFFIRMED, and a penalty of $6,827 is ASSESSED.

SO ORDERED. 

/s/

Dated: May 15, 2023

Denver, Colorado 

Christopher D. Helms

Judge, OSHRC