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.: 17-0304 

Norman W. Fries, Inc. d/b/a Claxton 

Poultry Farms,

 Respondent.

Attorneys and Law Firms: 

Kristin R. Murphy, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta, 

Georgia, for Complainant

Kathleen J. Jennings, Esq. and J. Larry Stine, Esq., Wimberly, Lawson, Steckel, Schneider & 

Stine, P.C., for Respondent

JUDGE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

In September 2016, the Savannah Area Office of the Occupational Safety and Health 

Administration (OSHA) received notice of an accident at a Norman W. Fries, Inc., d/b/a Claxton 

Poultry Farms (Claxton Poultry) facility in Claxton, Georgia. An employee had suffered a 

compound fracture to his left forearm when his arm was pulled into a conveyor. Compliance 

Safety and Health Officer (CSHO) Frances Stevens-Matos conducted an investigation into the 

accident and recommended the Secretary issue Claxton Poultry a citation alleging a serious 

violation of 29 C.F.R. § 1910.212(a)(1) for failure to guard the ingoing nip-point on the 

conveyor. The Secretary issued the citation for which he proposes a penalty of $12,675.00. 

Claxton Poultry timely contested the citation, bringing the matter before the Occupational Safety 

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

of 1970, 29 U.S.C. § 651- 678 (the Act).

I held a hearing in the matter on April 16, 2018, in Savannah, Georgia. The parties filed 

simultaneous post-hearing briefs on June 6, 2018.
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For the reasons that follow, Item 1, Citation 1, alleging a violation of § 1910.212(a)(1) is 

VACATED.

JURISDICTION

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

Commission pursuant to § 10(c) of the Act (Tr. 9). The parties also stipulated at all times 

relevant to this action, Claxton Poultry was an employer engaged in a business affecting 

interstate commerce within the meaning of § 3(5) of the Act (Tr. 9). Based on the parties’ 

stipulations and the facts presented, I find Claxton Poultry is an employer covered under the Act 

and the Commission has jurisdiction over this proceeding.

BACKGROUND

Claxton Poultry operates a chicken processing and packaging facility in Claxton, 

Georgia. Companywide, it has approximately 250 employees (Tr. 107). The area of the facility 

at issue is the seasoning department. That department has 29 employees (Tr. 100). Employees 

in the seasoning department season, weigh, and package chicken parts for sale to fast food 

restaurants (Tr. 212).

The seasoning department consists of four processing lines. Monica Locke, who 

managed the department in 2016, described the process in that department. Employees dump 

chicken parts into a hopper (Tr. 209). The employees then weigh, season, and place the chicken 

in a tumbler or mixing tank (Tr. 209). Once mixed with the seasoning, the meat is placed on a 

conveyor to be placed into bags. “Scoopers” scoop the chicken from the conveyor into bags that 

they then weigh (Tr. 210). Each line has two scoopers who stand on opposite sides of the 

conveyor (Tr. 210). The scooper places the bag on the conveyor. The bag passes through a 

metal detector on its way to the “packer” who again weighs the bag, labels it, and places it in a 

box (Tr. 210-12; see also Exhs. J-1 p. 35; C-9). 

During this process, chicken parts will occasionally fall from the bags onto the conveyor 

or onto the floor (Tr. 20, 214; Exh. J-2 p. 61). The employee tasked with cleaning the floor 

during the production process is called the “floor man.” (Tr. 216) The floor man picks the fallen 

pieces of chicken off the floor with various tools or by hand (Tr. 29, 36, 199, 217). Using a hose, 

the floor man may spray pieces of chicken that have fallen under the equipment to move them to 

a more easily accessible location (Tr. 36, 189, 216). Acting as floor man was not a regularly 
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assigned job, but something an employee might be asked to do as chicken accumulated on the 

floor and when the employee was not doing another task (Exh. J-1 p. 39).

Claxton Poultry hired the injured employee two or three months prior to the accident. 

(Exh. J-1 p. 34). He had worked that time in the seasoning department primarily performing 

stacking jobs. On August 31, 2016, he had been “dumping” meat into the tumbler, a stage in the 

process that preceded the scooping process (Exh. J-1 p. 38). It was nearing the end of the shift 

and the injured employee had cleaned his area. Seeing this, the injured employee’s supervisor, 

Pablo Cruz, directed him to clean the floors around line 2 (Exh. J-1 p. 39). The injured employee 

proceeded to do so. As he picked up a piece of fallen chicken, the injured employee’s hand 

became caught by the underside of the conveyor belt. It was pulled into the ingoing nip-point of 

the conveyor, causing a compound fracture to his forearm (Tr. 73).

Claxton Poultry reported the injury to the Savannah Area OSHA office. CSHO StevensMatos was assigned to conduct an investigation of the accident. She began her investigation on 

September 8, 2016, by going to the Claxton facility (Tr. 75). She took pictures of the seasoning 

lines and a video of a demonstration of the process (Exhs. C-1, C-3, C-4, C-5, and C-9). She 

interviewed employees and management officials (Tr. 74). She measured the width of the 

conveyor, but took no other measurements (Tr. 129, 133).

Based on her investigation, CSHO Stevens-Matos concluded employees were exposed to 

a caught-in hazard caused by the ingoing nip-point on the underside of the conveyor belt (Tr. 

103-04).1 CSHO Stevens-Matos recommended Claxton Poultry be issued a citation alleging a 

serious violation of the standard at 29 C.F.R. § 1910.212(a)(1) for failure to guard the ingoing 

nip-point on the conveyor. The Secretary issued the recommended citation for which he 

proposes a penalty of $12,675.00. 

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 

 

1 This area is depicted in Exhibit C-4. A close-up of the nip-point is depicted in Exhibit C-5.
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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).

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 

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 Claxton Poultry failed to guard the “nip-points on the return-rollers on the 

underside of the conveyor” on lines 2, 3, and 4 in the seasoning department, exposing employees 

to amputation hazards. CSHO Stevens-Matos testified employees designated as the floor person 

were exposed to the cited hazard as they picked up fallen chicken pieces from the floor in the 

event the employee falls or loses his balance (Tr. 84-85).

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. Claxton Poultry does not dispute the 

applicability of the standard to the conveyor. To the extent employees are exposed to injury 

from the ingoing nip-point of the conveyor, it must be guarded under § 1910.212(a)(1). The

cited standard applied to the cited conditions.

Employee Exposure

The key issue in dispute is whether the Secretary has met his burden to establish 

employees were exposed to a hazard as alleged in the citation. 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 on the underside of the 

conveyor belt.

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 
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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 

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 [he] 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 Commission 

agreed with the judge the likelihood of contact was too remote to establish employee exposure. 

The Commission based this finding on evidence employees were never less than 18 inches from 

the rotating part during the course of their work, the CSHO never observed employees closer 

than 2 feet from the part even when walking past the machine, and that the parts were 

sufficiently blocked to prevent contact even in the event of a slip or fall.

The Secretary contends “there is no question that employees were exposed to the ingoing 

nip-point on the Seasoning Line conveyors.” (Secretary’s Post-Hearing Brief, p. 9) I disagree. 

Although there is no question the injured employee was exposed, the Secretary failed to establish 

this exposure was reasonably predictable as a result of the manner in which the conveyor 

functions and the way it is operated.
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The Secretary’s case is based largely on the speculation of CSHO Stevens-Matos 

regarding the potential for exposure. CSHO Stevens-Matos opined there were several ways in 

which an employee could be caught in the conveyer. She testified:

For example, you may have an employee that is cleaning the floor in the 

area near the conveyor belt and when the employees goes down to pick up the 

chicken meat and then the employee goes up, they can lose their balance and 

move inward towards the conveyor belt as it is in motion.

Another scenario is that the employee can get down to get the chicken 

piece off from the floor and as they get up they may reach in to support 

themselves. Like normally when we get down..or at least I do it, I may lose my 

balance. I may not have the strength to get up so I may support myself. Or an 

employee may support themselves as they get up.

Or another scenario is that when an employee is working near this area 

they can have a piece of clothing or their personal protective equipment being 

caught in by the conveyor belt and then pulled into the rollers.

(Tr. 85). The underside of the conveyor is not smooth. CSHO Stevens-Mattos noted the 

employees wore protective gloves, sleeves, and smocks, all of which could be caught by the 

underside of the belt because it is not smooth (Tr. 104). Although it is theoretically possible for 

an employee to be exposed in the manner suggested by CSHO Stevens-Matos, the evidence 

presented by the Secretary fails to establish expsoure is reasonably predictable. 

The Secretary argues this potential for employee exposure as described by CSHO 

Stevens-Matos was manifest in the accident. The fact of the accident, without more, is not 

sufficient to establish exposure based on CSHO Stevens-Matos’s theory. Cf. Calpine Corp., 27 

BNA OSHC 1014, 1016 n. 6 (No. 11-1734, 2018). The record fails to establish by a 

preponderance of the credible evidence how the injured employee came to be pulled into the 

ingoing nip-point of the conveyor. There were no witnesses to the accident. The injured 

employee did not testify at the hearing. Portions of this deposition testimony were admitted into 

the record as Exhibits J-1 and J-2. In his deposition, the injured employee testified he had 

reached down to pick up a piece of chicken that had fallen underneath the conveyor (Exh. J-2 p. 

15). He testified “I raised up and I turned the wrong way and it caught my glove. By the time I 

realized it caught my glove, it pulled me all the way in.” (Exh. J-2 p. 15) This testimony is not 

consistent with his statement to Claxton Poultry soon after the accident. The injured employee 

signed an incident report on September 2, 2016, that states “there was a piece of meat on the belt. 

He was trying to catch the piece of meat before it went around the belt. He states his green glove 
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got caught up in the belt or sprocket.” (Exh. R-2) The injured employee testified the company 

nurse taking the statement was mistaken and that he signed the statement without reading it (Exh. 

J-2 pp. 20-21). I find this unconvincing.2 The Secretary relies on this evidence as support for his 

position the scenarios posed by CSHO Stevens-Matos are more than speculation. This reliance 

is misplaced. 

The Secretary presented no other evidence picking up fallen chicken placed employees in

the zone of danger. There is no credible evidence employees reach under the conveyor to pick 

up chicken by hand. There is no evidence any employee has ever been exposed to the underside 

of the conveyor belt as a result of losing his or her balance and inadvertently reaching into it. 

According to the seasoning department employee who testified at the hearing, it was “not 

normal” for chicken to fall under the conveyor (Tr. 44). When chicken was under the conveyor, 

it was not the normal process to pick it up by hand (Tr. 29-30, 39). Nor does any part of the 

floor man job require coming in proximity to the conveyor belt (Tr. 40-41). CSHO StevensMattos never observed the operation of the seasoning line or the job of floor man (Tr. 115). 

Where the Secretary puts forth no evidence that the employee exposure was part of normal 

operations and that no one had ever been exposed in this manner before, I am constrained to find 

any actual exposure was idiosyncratic and not reasonably predictable.

As seen in the photographic evidence, the conveyor is surrounded by a metal frame. 

Claxton Poultry posits the frame would prevent the employee from reaching the underside of the 

conveyor under the circumstances described by CSHO Stevens-Matos. The Secretary presented 

no objective evidence in support of his theory of access to the ingoing nip-point of the conveyor. 

The record contains no measurements of the cited equipment.3 The Secretary has the burden to 

 

2 Because the injured employee did not testify in person, I am unable to assess his demeanor. There is evidence in 

the record of bias and/or self-interest which may have caused him to change his version of events. Claxton Poultry 

first opposed the injured employee’s claim for worker’s compensation and later terminated him. The injured 

employee’s testimony was varying and uncorroborated by any other evidence. I find it unreliable. The company 

nurse testified in person at the hearing. Although she may have had some interest in supporting Claxton Poultry’s 

position, I found her an otherwise credible witness.

3 CSHO Stevens-Matos testified she could not take measurements of the conveyor, its surrounding frame, or the area 

around the conveyor because doing so would expose her to a hazard (Tr. 130). She was able to take a photograph of 

the underside of the conveyor (Exh. C-4) and to measure the width of the conveyor belt, suggesting she considered 

some proximity to the conveyor safe. When asked why she did not ask Claxton Poultry to lock out the equipment so 

she could take more complete measurements, she responded that because the inspection was not comprehensive, she 

had not assessed the efficacy of the company’s lockout program (Tr. 130). There is no evidence CSHO StevensMatos requested and was denied the opportunity to review Claxton Poultry’s lockout program for this limited 

purpose. Although I do not suggest CSHOs place themselves in harm’s way during an inspection, where evidence is 

necessary to meet the Secretary’s burden, the Secretary must endeavor to obtain it. If the Secretary obtained the 
8

establish the frame did not prevent access to the hazard. The Secretary has not met this burden.

On this record, Claxton Poultry’s theory that exposure to the nip-point in the manner described 

by CSHO Stevens-Matos is not possible is as plausible as the Secretary’s theory that it is. 

The Secretary has failed to meet his burden to establish employee exposure to the ingoing 

nip-point on the conveyors on the seasoning line was reasonably predictable under the 

circumstances. The citation is vacated.

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:

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

VACATED.

SO ORDERED.

/s/

 Heather A. Joys

Date: August 22, 2018 Administrative Law Judge

 Atlanta, Georgia

 

information in discovery, he failed to present it at the hearing. Failure to present this evidence seriously undermined 

the Secretary’s ability to meet his burden of proof.