United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457 

ON BRIEFS:

Brian A. Broecker, Attorney; Heather Phillips, Counsel for Appellate Litigation; Edmund C. Baird, 

Associate Solicitor of Labor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, D.C. 

For the Complainant

Brent I. Clark, Esq.; Adam R. Young, Esq.; Seyfarth Shaw LLP, Chicago, IL 

For the Respondent 

DECISION

Before: ATTWOOD, Chairman; LAIHOW, Commissioner. 

BY THE COMMISSION: 

AJM Packaging Corporation manufactures paper plates and bowls at its facility in 

Vineland, New Jersey. In May 2016, an employee suffered an amputation injury while clearing a 

paper jam on one of the facility’s machines. As a result of the incident, the Occupational Safety 

and Health Administration inspected the facility and issued AJM a one-item, four-instance repeat 

citation alleging a violation of a provision of the lockout/tagout (LOTO) standard, 29 C.F.R. 

§ 1910.147(c)(4)(i).1

 

1 The citation, which initially alleged a violation of 29 C.F.R. § 1910.147(d)(4)(i), was amended 

by the Secretary in his complaint. OSHA also issued AJM a one-item serious citation that is not 

at issue on review.

SECRETARY OF LABOR,

AJM PACKAGING CORPORATION,

Complainant,

Respondent.

v. OSHRC Docket No. 16-1865
2 

Following a hearing, Administrative Law Judge William S. Coleman vacated the citation 

in its entirety. Only Instance (d) of the alleged violation is at issue before the Commission. For 

the reasons discussed below, we affirm the judge and vacate Instance (d). 

BACKGROUND

To produce the paper products manufactured at AJM’s facility, the company uses machines 

referred to as “Peerless Cutting Machines” or “PCMs.” In 2016, AJM operated about 33 PCMs at 

its facility, which were arranged in the central production area, the “floor,” in two parallel rows. 

The output end of every machine faced toward a center aisle. Employees known as “adjusters” 

operate the PCMs and perform any necessary machine adjustments, such as clearing paper jams,

to ensure that the paper products are formed correctly. Between eight and twelve adjusters 

typically work each shift,2 and experienced adjusters normally operate three or four PCMs at a 

time. Adjusters operate the PCM using a control panel located on the “operator’s side” of the 

machine.3

The production process begins with the PCM’s mechanical paper feeder pulling a sheet of 

paper into the cutting, or “blanking,” die of the machine. The cutting die then cuts five holes 

through the sheet of paper to produce five circle-shaped “blanks,” which the PCM then forms into 

plates or bowls. After the cutting die creates the blanks, the paper remnant, or “scrap,” drops a 

short distance onto the PCM’s scrap chute. A burst of forced air from an air nozzle located at the 

end of the scrap chute on the operator’s side expels the scrap from the chute. The scrap blows out 

of the PCM through an opening on the non-operator, or “discharge,” side of the PCM, where it 

falls into a bin positioned below the opening. 

The scrap chute on each PCM is a piece of solid steel sheet metal that weighs approximately 

30 pounds; it is about five feet long and runs horizontally across the width of the PCM from the 

2 The facility has three eight-hour shifts per day. 

3

 The PCM can be shut down in three ways—by turning off the machine using the disconnect 

switch on the control panel and locking it out, by activating one of three emergency stop, or “estop,” buttons, or by opening the rear access doors, which are interlocked. AJM has established 

written LOTO procedures, both general and machine-specific, for each of its machines. The 

company trains adjusters as “authorized employees” and issues them personal locks that they must 

always keep on their belt loops. See 29 C.F.R. § 1910.147(b) (defining “authorized employee” as 

“[a] person who locks out or tags out machines or equipment in order to perform servicing or 

maintenance on that machine or equipment”).
3 

operator’s side to the discharge side. There are two bends in the scrap chute—one right-angle 

bend and one approximate 30-degree angle bend—that give the chute a shape that resembles the 

letter “J” when viewed from the operator’s side. When the scrap chute is in its operating position, 

its “J” shape is canted clockwise about 45 degrees, so that the interior angles of the scrap chute 

form a cradle onto which the scrap paper falls. 

The scrap chute is not powered by any device or mechanism. It is possible, however, to 

pivot the scrap chute upward by hand by reaching through a guarded opening on the operator’s 

side of the machine or by reaching through an opening below the rear access doors. When in its

canted operating position, the scrap chute’s own weight keeps it from pivoting or moving upward 

during machine operations. If the scrap chute is pivoted to an upright position by hand, there is 

nothing on the PCM that allows for it to be secured in that position. It can remain balanced in 

place or fall by force of gravity to its canted operating position. AJM prohibited lifting the scrap 

chute to clear paper jams in February 2015, following an injury to one of its adjusters.4

On May 8, 2016, an adjuster discovered that blanks were jammed near the cutting die of a 

PCM he was operating. To unjam the machine, he engaged the e-stop button on the control panel 

to shut down the machine, walked to the back of the PCM, opened the interlocked rear access 

doors, and observed about 60 blanks jammed near the cutting die. He then reached up and tried to 

pull the blanks out with his hand, but they were too tightly jammed for him to do so. He returned 

to the operator’s side of the machine, opened the scrap chute guard, and lifted the scrap chute to 

its upright position. The adjuster then returned to the opened rear access doors and from that 

position he again reached up into the machine to remove the jammed blanks. He succeeded in 

removing them, but as he was finishing, the scrap chute fell from its upright position and pinched 

his middle finger against the cutting die, resulting in the amputation of part of his finger. 

DISCUSSION

The Secretary alleges a violation of § 1910.147(c)(4)(i), which provides: “Procedures shall 

be developed, documented and utilized for the control of potentially hazardous energy when 

employees are engaged in the activities covered by this section.” With respect to Instance (d), the 

4 The 2015 incident occurred when an adjuster attempted to clear a paper jam located in the cutting 

die. Because he did not shut down the PCM, the cutting die continued to reciprocate. The adjuster 

inserted his arm into the machine through an opening below the rear access doors and pushed up 

on the scrap chute so that it pivoted upwards. This created space for his fingers to contact the 

reciprocating cutting die and resulted in an amputation injury. 
4 

amended citation describes the alleged violation as follows: “Lockout procedures were not utilized 

and lockout devices were not affixed by an authorized employee performing tasks such as, but not 

limited to, clearing jams on the Peerless Cutting Machine . . . .”5

To establish a violation, the Secretary must prove that the cited standard applies, there was 

a failure to comply with the standard, employees were exposed to the violative condition, and the 

employer knew or should have known of the violative condition with the exercise of reasonable 

diligence. See Briones Utility Co., 26 BNA OSHC 1218, 1219 (No. 10-1372, 2016); Astra Pharm. 

Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 

(1st Cir. 1982). Of these elements, only applicability and constructive knowledge are at issue on 

review.

6

I. Applicability

The LOTO standard “covers the servicing and maintenance of machines and equipment in 

which the unexpected energization or start up of the machines or equipment, or release of stored 

energy could cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)(i) (second emphasis added). 

It “applies to the control of energy during servicing and/or maintenance of machines and 

equipment.” 29 C.F.R. § 1910.147(a)(2)(i). For purposes of the LOTO standard, “[s]ervicing 

and/or maintenance” means “[w]orkplace activities . . . 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) (emphasis in original). 

In finding that the LOTO standard applied to the violative condition alleged in Instance 

(d), the judge agreed with the Secretary that hazardous gravitational energy accumulates when the 

PCM’s scrap chute is raised to clear a paper jam, a servicing and maintenance activity, and 

therefore must be controlled by a physical restraint, such as a block, to prevent it from 

5

 Although the amended citation includes “tasks such as, but not limited to, clearing jams,” the 

Secretary in both his post-hearing brief and his brief on review maintains that the violative 

condition at issue relates specifically to employees raising the scrap chute to clear paper jams. 

Likewise, the citation is limited to the circumstances that occurred “on or about May 8, 2016,” 

which involved the employee raising the scrap chute to clear a paper jam. 

6

 The judge found no evidence of actual knowledge. That finding is not at issue on review. 
5 

unexpectedly falling and injuring an employee.7 As it did before the judge, AJM argues on review 

that the LOTO standard cannot apply to the raised scrap chute because it was not until the 

employee lifted the scrap chute during the servicing activity (i.e., clearing the paper jam) that any 

stored energy became an issue. Specifically, AJM asserts that the PCM was in a “zero mechanical 

state” at the time of the incident and that the scrap chute, held down by gravity, was at rest until 

lifted by the employee to clear the jam.

8

 In other words, AJM claims the LOTO standard does not 

apply to energy unrelated to a machine’s normal production function—that is, energy created by 

an ancillary machine component that is at rest and does not require an energy isolating device to 

keep it at rest.

9

 

7 There is no dispute that clearing a paper jam is a servicing and/or maintenance activity covered 

by the LOTO standard. See 29 C.F.R. § 1910.147(b) (servicing and/or maintenance “activities 

include lubrication, cleaning or unjamming of machines or equipment and making adjustments or 

tool changes” (emphasis added)). Although AJM argues that lifting the scrap chute to clear a paper 

jam was not a service or maintenance task because it was “ ‘categorically’ prohibited, an 

illegitimate activity,” the fact that the practice was prohibited is not relevant in the context of 

applicability. It is, however, a consideration for the knowledge element of the Secretary’s case, as 

we discuss below. 

8 AJM’s reliance on the fact that the PCM was rendered to a “zero mechanical state” before the 

employee began clearing the paper jam is misplaced given that OSHA explicitly rejected the 

concept of zero mechanical state in the LOTO standard preamble: “[E]very power source that can 

produce movement of a machine member must be locked out.” Control of Hazardous Energy 

Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,678 (Sept. 1, 1989) (Final Rule). OSHA 

further explained that it had reviewed the consensus standard that adopts the concept of zero 

mechanical state “and believes that adoption of this OSHA standard will better effectuate the 

purposes of the [Occupational Safety and Health] Act. The OSHA standard requires the adoption 

and utilization of a complete program for the control of hazardous energy, including energy 

sources not specifically addressed by the [consensus] standard.” Id. In short, the LOTO standard 

is more expansive and, as explained below, also includes the requirement to control for 

gravitational energy not created by a machine’s mechanical processes.

9

 AJM does not dispute, however, that gravitational energy in general is a type of energy covered 

by the LOTO standard. Indeed, the text of the standard, as supported by the preamble, plainly 

includes “gravitational energy” as a form of “other energy” covered by the standard. See 29 C.F.R. 

§ 1910.147(b) (defining “energy source” as “[a]ny source of electrical, mechanical, hydraulic, 

pneumatic, chemical, thermal, or other energy” (emphasis added)); Lockout/Tagout, 54 Fed. Reg. 

at 36,666 (explaining that “energy” includes “potential energy due to pressure, gravity, or spring”); 

see also Arcadian Corp., 17 BNA OSHC 1345, 1348 (No. 93-3270, 1995) (considering legislative 

history where plain meaning of statutory language is clear only to determine whether there is 

express legislative intent to the contrary), aff’d, 110 F.3d 1192 (5th Cir. 1997); Otis Elevator Co., 

24 BNA OSHC 1081, 1082-83 (No. 09-1278, 2013), aff’d, 762 F.3d 116 (D.C. Cir. 2014) (finding 
6 

Like the judge, we reject this argument. The temporal component suggested by AJM is 

simply not present in the text of the LOTO standard. As the judge noted, the definition of 

“servicing and/or maintenance” makes no reference to whether the unexpectedly released energy 

is present either before or after the employee begins a servicing or maintenance activity. 29 C.F.R. 

§ 1910.147(b). This reading is supported by the plain text of various provisions of the LOTO 

standard, which state that the standard applies to all energy sources that could unexpectedly release 

energy and injure an employee at any point during a servicing and/or maintenance activity. 29 

C.F.R. § 1910.147(a)(1)(i) (standard “covers servicing and maintenance of machines . . . in which 

the unexpected release of stored energy could cause injury to employees”); 29 C.F.R. 

§ 1910.147(a)(2)(i) (standard “applies to the control of energy during servicing and/or 

maintenance of machines and equipment”); 29 C.F.R. § 1910.147(c)(4)(i) (procedures must be 

“utilized for the control of potentially hazardous energy when employees are engaged in the 

activities covered by this section” (emphasis added)). 

Contrary to AJM’s claim on review, this reading of the LOTO standard is consistent with 

its preamble. See Arcadian Corp., 17 BNA OSHC 1345, 1348 (No. 93-3270, 1995) (considering 

legislative history where plain meaning of statutory language is clear only to determine whether 

there is express legislative intent to the contrary), aff’d, 110 F.3d 1192 (5th Cir. 1997). It is true, 

as AJM points out, that the preamble explains in reference to 29 C.F.R. § 1910.147(d)(5) that

“energy [that] may still be present in a system that has been isolated from the energy source [must]

be controlled before an employee attempts to perform work.” Control of Hazardous Energy 

Sources (Lockout/Tagout), 54 Fed. Reg. 36,644, 36,677 (Sept. 1, 1989) (Final Rule) (emphasis 

added). But the provision itself states that “[i]f there is a possibility of reaccumulation of stored 

energy to a hazardous level, verification of isolation shall be continued until the servicing or 

maintenance is completed, or until the possibility of such accumulation no longer exists.” See 29 

C.F.R. § 1910.147(d)(5)(ii) (emphasis added). In addition, as OSHA explained in the preamble, 

“the [LOTO] standard is intended to control energy as it relates to the energy isolating device and 

the machine or equipment being serviced, and that the only stored or residual energy addressed by 

the standard is that which could reenergize that equipment or be released while the servicing 

operation is being performed.” Lockout/Tagout, 54 Fed. Reg. at 36,678 (emphasis added). 

potentially hazardous stored kinetic energy in elevator’s jammed chain assembly due to weight of 

partially opened freight elevator gate).
7 

AJM fails to recognize that the stored gravitational energy in a raised scrap chute 

“could . . . be released while the servicing operation is being performed,” regardless of when that 

energy was created. Id. Indeed, OSHA explained that employers must use a standardized energy 

control procedure while preparing for, conducting, and completing servicing of equipment because

“simply shutting down the machine or equipment has not proven to prevent accidents when there 

is an unexpected energization or start up of the machine or equipment or the release of stored 

energy.” Lockout/Tagout, 54 Fed. Reg. at 36,661 (emphasis added); see id. at 36,653 (“The 

procedure would outline the necessary steps to be taken to prepare for, conduct, and complete 

servicing of equipment . . . .”), 36,661 (describing the standardized procedure used to control 

hazardous energy). Finally, the preamble also states that the employer must “ensure that the 

control measures are used by employees whenever they might be exposed to injury from the 

unexpected energization or start up of machines or equipment or the release of stored energy.” Id.

at 36,670 (emphasis added). In short, the LOTO standard requires that an employer control energy 

throughout the servicing and/or maintenance activity, not only before the activity begins. 

For these reasons, we affirm the judge’s finding that the LOTO standard applies to the 

violative condition at issue in Instance (d). 

II. Constructive Knowledge 

To establish constructive knowledge, the Secretary must prove that, with the exercise of 

reasonable diligence, the employer should have known of the conditions constituting the violation. 

Jacobs Field Servs. N. Am., 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015). “The knowledge 

element is directed to the physical conditions that constitute a violation, and the Secretary need 

not show that an employer understood or acknowledged that the physical conditions were actually 

hazardous.” Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001) 

(citation omitted), aff’d, 319 F.3d 805 (6th Cir. 2003); see also S. Hens, Inc. v. OSHRC, 930 F.3d 

667, 676 (5th Cir. 2019) (“The showing required to establish knowledge is of the physical 

conditions constituting the violation, not of the specific OSHA regulation or of the probable 

consequences of the violation.”). Reasonable diligence is based on several factors, including an 

employer’s obligations to implement adequate work rules and training programs, adequately 

supervise employees, anticipate hazards, take measures to prevent violations from occurring, and 

enforce work rules when violations are discovered. See S.J. Louis Constr. of Tex., 25 BNA OSHC 
8 

1892, 1894 (No. 12-1045, 2016); Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2088-89 

(No. 06-1542, 2012). 

The cited provision states that LOTO procedures are required “when employees are 

engaged in the activities covered by this section.” In this case, the “covered” activity is raising the 

scrap chute “to remove an accumulation of blanks from the cutting dies.” Thus, for purposes of 

the knowledge inquiry, the question on review is whether AJM should have known with the 

exercise of reasonable diligence that employees raised the PCM’s scrap chute to clear paper jams. 

The judge found the record lacked sufficient evidence to establish that AJM should have known 

of this practice. For the reasons that follow, we agree with the judge that the Secretary failed to 

establish AJM had constructive knowledge.10 

Adequacy of Work Rule and Training

In February 2015, AJM established and trained its adjusters on the following work rule: 

All adjusters: NEVER raise the scrap [chute] to clear a jam. This [chute] acts as a 

guard when clearing out jams from under the machine. Exposure to the scrap knife 

is extremely dangerous while the machine is running. To clear a jam, you must go 

under the machine and remove the jam with the sc[ra]p [chute] in place. NEVER 

try to reach in from the sides of the machine. This is a part of our safety S[tandard] 

O[perating] P[rocedures] and is strictly enforced. 

10 The Secretary also argues that constructive knowledge can be based on what he claims is the 

Plant Manager’s failure to exercise reasonable diligence. See Otis Elevator Co., 21 BNA OSHC 

2204, 2208 (No. 03-1344, 2007) (supervisor’s knowledge imputable to employer). Under the 

circumstances of this case and given that this matter may be appealed to the Third Circuit, an 

analysis of constructive knowledge based on the Plant Manager’s conduct depends on many of the 

same facts considered in our analysis of reasonable diligence that follows. See Penn. Power & 

Light Co. v. OSHRC, 737 F.2d 350, 357-58 (3d Cir. 1984) (supervisor’s knowledge imputable to 

employer, but where supervisor participates in violative conduct, supervisor’s knowledge only 

imputable where supervisor’s participation was foreseeable); Kokosing Constr. Co., 21 BNA 

OSHC 1629, 1632 (No. 04-1665, 2006), aff'd, 232 F. App’x 510 (6th Cir. 2007) (unpublished)

(finding that supervisor could have known of the violative condition with the exercise of 

reasonable diligence); see also 29 U.S.C. § 660(a) (employers may seek review in the circuit in 

which the violation occurred, the circuit in which the employer’s principal office is located, or in 

the District of Columbia Circuit); 29 U.S.C. §660(b) (Secretary may seek review in the circuit 

where the violation occurred or in the circuit in which the employer’s principal office is located); 

Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted) 

(“Where it is highly probable that a Commission decision would be appealed to a particular circuit, 

the Commission has . . . applied the precedent of that circuit in deciding the case—even though it 

may differ from the Commission’s precedent.”). Accordingly, the conclusions we reach in that 

analysis apply equally to any theory of constructive knowledge based on the actions of the Plant 

Manager. 
9 

The judge found that “even though the rule was not intended to protect adjusters from the 

gravitational energy present in the raised scrap chute,” it was nonetheless adequate because

“compliance with the rule would have the unintended ancillary effect of preventing the hazardous 

physical condition involved in instance [(d)] from materializing.” 

“The Commission has consistently held that an employer’s work rules must simply 

‘reflect[] the requirements of the cited standard.’ ” MasTec N. Am., Inc., No. 15-1574, at 9 

(OSHRC 2021) (citations omitted); see also Armstrong Utilities, Inc., No. 18-0034, at 10 (OSHRC 

2021). As noted above, the obligation to “develop[], document[] and utilize[]” LOTO procedures 

only arises “when employees are engaged in the activities covered by th[e] [LOTO standard].” 29 

C.F.R. § 1910.147(c)(4)(i). In this regard, AJM’s work rule reflects the cited provision’s 

requirements because it prohibits employees from engaging in the cited activity that triggers the 

requirement for LOTO procedures. Indeed, it would be illogical for AJM to establish a work rule 

that lays out LOTO procedures for raising the scrap chute when clearing a paper jam given that 

employees are prohibited from doing that in the first place. Thus, we find that AJM’s work rule 

is adequate. 

We also find the Secretary failed to prove AJM’s efforts to implement and communicate 

this work rule were deficient. AJM’s initial efforts to communicate and train employees on the 

rule were clear and direct. The rule was provided to adjusters on February 9, 2015, and 27 

adjusters, including the adjuster injured in 2016, signed a form acknowledging that they had 

received training on the rule. Several supervisors, including the Assistant Plant Manager, testified 

that at the time the rule was implemented, adjusters were trained on the rule, understood the rule, 

and did not express any confusion about the rule. The Assistant Plant Manager testified that he 

went over the rule step by step with each adjuster, including the injured adjuster, while they were 

standing at their machines. Furthermore, the two former and three current employees who testified 

at the hearing and worked as adjusters for AJM in February 2015, including the injured adjuster, 

all stated that they were aware of and understood the rule.11

The Secretary argues that despite initially training adjusters on the work rule, AJM failed 

to provide subsequent formal or written training on the rule either during classroom or on-the-floor 

11 This group of five employees includes two former adjusters, one current adjuster, and two 

current foremen who worked as adjusters in February 2015. A total of five former adjusters 

testified at the hearing, but only two of them were employed by AJM in February 2015. 
10 

training. But the Secretary failed to prove that the rule was not conveyed informally during onthe-floor training provided to trainees by experienced adjusters who knew the rule. In fact, the 

Secretary did not ask any witnesses whether new adjusters were trained on the work rule or whether 

AJM’s supervisors had informed or instructed adjuster-trainers to provide training on it. Rather, 

the Secretary asserts that any informal training that took place was inadequate because AJM 

“often” shortened the amount of time it spent informally training adjuster-trainees on the floor.

12 

However, the amount of time that AJM spent training adjuster-trainees does not speak to whether 

during such training the work rule was adequately communicated to trainees. Moreover, the 

Secretary never explains what length of on-the-floor training would be reasonably necessary under 

the circumstances. Without this evidence, there is simply no basis to conclude that AJM’s

subsequent informal communication or training was inadequate.13

For all these reasons, we find the Secretary failed to establish that the company’s 

communication of its work rule to employees was inadequate.

Adequacy of Supervision

It is undisputed that AJM’s various production supervisors—including the Assistant Plant 

Manager, the Production Manager, Foremen, and Assistant Foremen—spend the majority of their 

time on the production floor, observing and monitoring employees, including adjusters, and 

ensuring compliance with safety rules. The Human Resources Manager also walks the floor each 

day, and the Plant Manager occasionally observes the production floor and can view the machines 

from his office. The Secretary claims that this monitoring cannot possibly be considered effective 

because the testimony of five former adjusters shows that adjusters frequently raised scrap chutes 

at the facility to clear paper jams, and a raised scrap chute would and should have been “readily 

detectible” to any supervisor observing the work. But as the judge acknowledged in his decision, 

there is a “clear divide” in the evidence on the basic premise underlying the Secretary’s 

12 Three former adjusters testified that they received two, two and a half, and three weeks of 

training, respectively, while two current foremen who started as adjusters and one current adjuster 

all testified that they were trained for “a couple of months,” “around 90 days,” and six months, 

respectively. 

13 The Secretary also claims that AJM’s informal training was inadequate because on-the-floor 

training included adjuster-trainees being shown practices that violated AJM’s work rules, 

including the rule prohibiting raising the scrap chute. But only one adjuster hired after February 

2015 testified in that regard, and his testimony concerned reaching into the scrap chute of an 

operating machine, not raising the chute to clear jams. 
11 

argument—the prevalence of lifting the scrap chute to clear a paper jam. Specifically, four of the 

five former adjusters called by the Secretary testified that they raised the scrap chute one to three 

times per day per machine to clear paper jams after the 2015 work rule was instituted, and that 

floor supervisors and other adjusters engaged in that practice as well.14 At the same time, the eight 

current supervisors and one current adjuster called by AJM testified that they never lifted the scrap 

chute to clear a jam and had never seen adjusters raise the scrap chute to clear a jam.15

Faced with this contradictory testimony, the judge determined that all of these witnesses

were equally credible, discrediting only part of the testimony of one former adjuster.

16 

Specifically, the judge found that “the testimony of former and current employees regarding their 

practices after the rule was implemented was facially credible” and “[i]t is entirely believable that 

[all but one of the former adjusters who testified] lifted the scrap chute in the manner and frequency 

with which they testified.”17 He also found that testimony from the former adjusters “that they 

had observed floor supervisors [raise the scrap chute to clear jams] is no more credible than the 

testimony of two of the supervisors they identified who essentially controverted having violated 

the rule themselves.” In short, the judge credited the former adjusters’ testimony that they 

themselves lifted the scrap chute regularly to clear paper jams and had seen floor supervisors do 

so, and also credited the current employees’ testimony (including that of floor supervisors) that 

14 The fifth adjuster testified that he raised the scrap chute once a day to clean the rails but did not 

testify that he raised it to clear paper jams. One of the four adjusters who testified that he raised 

the scrap chute to clear jams also testified he raised the scrap chute to tighten screws. Given that

the alleged violative condition relates only to raising the scrap chute to clear paper jams, any 

testimony related to raising the scrap chute for other reasons is not relevant. 

15 In its briefs on review, AJM characterizes its employee witnesses as seven supervisors and two 

adjusters. However, one of the employees AJM counts as a current adjuster is an assistant foreman 

(and was a foreman trainee at the time of the 2016 incident), though he had worked as an adjuster 

in the past and in the period between the incident and his testimony. 

16 The judge determined that the testimony of one former adjuster who said he lifted the scrap 

chute 10 to 15 times a day to clear paper jams over the three weeks he worked for AJM as an 

adjuster-trainee was the “possible exception” to his finding that the witnesses were equally 

credible. We likewise give no credit to the adjuster’s testimony regarding the frequency with 

which he raised the scrap chute. 

17 In making this finding, the judge considered the testimony of the former adjusters who said they 

raised the scrap chute for reasons other than clearing paper jams. As noted, none of that testimony

is relevant to the violative condition alleged here. We therefore do not consider it in our analysis 

here.
12 

they themselves never lifted the scrap chute to clear paper jams and had never seen anyone do so. 

This means he was unable to resolve the conflicting testimony regarding the prevalence of this 

practice. Accordingly, the judge concluded the Secretary failed to proffer sufficient evidence to 

establish by a preponderance of the evidence that AJM failed to adequately supervise its adjusters 

regarding compliance with the rule. 

We find no basis for disturbing the judge’s determination that the former adjusters and the 

current employees were equally believable, and therefore, we also credit their respective testimony 

except where it directly conflicts. See, e.g., Metro Steel Constr. Co., 18 BNA OSHC 1705, 1706 

(No 96-1459, 1999) (Commission ordinarily defers to judge’s credibility findings when based on 

demeanor of witnesses or other factors peculiarly observable by judge). Thus, we credit the former 

employees’ testimony that it was their own practice to regularly lift the scrap chute to clear paper 

jams, the current adjuster’s testimony that he never lifted the scrap chute to clear jams, and all of 

the current employees’ testimony that they had never seen anyone lift the scrap chute to clear jams. 

And absent evidence in the record that would allow us to assess the credibility of either set of these 

employees with respect to whether floor supervisors and other employees violated the work rule, 

our inquiry here is limited to whether—in light of the four former adjusters’ credible testimony 

that they had previously lifted the scrap chute to clear paper jams—AJM’s supervisors should have 

been aware that there were four employees violating the work rule. 

On that issue, we find that the record is again lacking. First, testimony from the former 

adjusters shows that their scrap chute lifts were relatively infrequent and of short duration. One 

former adjuster testified that he only “rarely” raised the scrap chute to clear paper jams. Another 

adjuster simply said he lifted the scrap chute “whenever [he] needed to clear [a paper jam]” with 

no explanation of how often that occurred. A third adjuster testified he lifted the scrap chute to 

clear paper jams, but while the judge agreed that this adjuster did perform this action to some 

degree, his testimony as to how often he did so has been discredited. And the adjuster injured in 

2016 testified he would raise the scrap chute “like four times . . . per shift.” In short, four 

adjusters—three on one shift and one on a different shift—were raising scrap chutes to clear paper 

jams, with the record showing that three were doing so only occasionally over the course of an 

eight-hour shift. 

With respect to the duration of their lifts, none of the former adjusters explained precisely 

how long clearing a paper jam would take. Three of them simply said the scrap chute remained 
13 

upright long enough to pull out any paper. Only the injured adjuster testified that the scrap chute 

was normally up for one minute when he raised it to clear a jam. During the 2016 incident, 

however, when he had to go back and forth between the operator’s side of the machine and the 

rear doors to clear the jam, the scrap chute was raised for four to five minutes. Given this testimony 

and that of the adjusters who said their goal was to get their machines running again as quickly as 

possible, we find that any lifts to clear a jam were usually of short duration. 

Second, it is not clear that a raised scrap chute would, as the Secretary claims, have been 

readily apparent to any supervisor walking the production floor.

18 The Plant Manager claimed 

that anyone observing the adjusters would be able to see whenever a scrap chute was raised because 

the end of it sticks out of the machine on the discharge side, and when the scrap chute is raised, 

the whole chute is at “an upright position instead of a 45[-]degree angle.” However, the record 

makes clear that for the PCM to remain operational, the scrap chute cannot be raised while the 

machine is operating. As a result, supervisors would have to look for the raised scrap chute 

whenever they saw that a PCM had stopped operating, as indicated by a blinking red light on the 

top of the machine. Indeed, supervisors testified that they were required to check whenever they 

saw that a machine was no longer operating. But the Production Manager, who spends the majority 

of his time on the production floor, testified that the light was visible only from five feet away, so 

supervisors could not always tell when a light was lit while walking down the center aisle during 

their rounds, particularly if they were some distance away from the inoperative machine. In short, 

a supervisor may not have been in the vicinity for the brief period of time a machine’s red light 

was on or the scrap chute was raised. 

Under these circumstances, we find the record evidence falls short of establishing that the 

AJM supervisors monitoring the production floor should have observed the few and relatively 

fleeting occasions when the scrap chute was raised in violation of the company’s work rule. 

Accordingly, we find the Secretary failed to establish that AJM’s continuous safety monitoring by 

multiple supervisors was inadequate. See, e.g., N.Y. State Elec. & Gas Corp., 19 BNA OSHC 

1227, 1231 (No. 91-2897, 2000) (finding safety program adequate where, in addition to 

18 As noted above, testimony from some of the former adjusters that they raised the scrap chute for 

reasons other than clearing a paper jam is not relevant to the alleged violative condition here. But 

even if considered, we find that the evidence would still be insufficient to establish that the 

adjusters were raising the scrap chutes for a duration or frequency such that AJM supervisors 

should have detected it. 
14 

supervisory surprise audits, foreman inspected each site for safety compliance twice a day and 

spent thirty to forty minutes at each visit); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2070 

(No. 96-1719, 2000) (finding safety program adequate where either company’s co-owner or safety 

director inspected between 75 percent and 95 percent of the company’s work sites each day to 

monitor employee compliance with safety rules).

Anticipating Hazards

In terms of adequately anticipating hazards to which its employees may be exposed, the 

judge found that AJM’s supervisors uniformly and credibly believed that adjusters had no need to 

raise the scrap chute to clear paper jams. He also determined, and we agree, that the evidence 

presented by the Secretary was insufficient to establish that there was a widespread practice of 

lifting the scrap chute to clear paper jams among adjusters. On review, the Secretary argues that 

testimony from the adjusters shows they apparently found it helpful to raise the scrap chute when 

clearing a paper jam. But that has no bearing on whether AJM should have anticipated hazards 

related to that practice. And, as the judge found, AJM’s supervisors all testified there was no 

reason to raise the scrap chute and that doing so would not make the work go faster. Thus, we 

agree with the judge that AJM had no reason to anticipate that adjusters would violate its work 

rule and thus be exposed to the violative condition. 

In addition, the record does not support the Secretary’s claim that prior injuries suffered by

adjusters at the facility should have alerted the company that adjusters were exposed to a hazard 

related to raising the scrap chute. The evidence shows that all but one of those previous injuries

occurred while adjusters were performing work activities that did not involve raising the scrap 

chute.19 And the one prior incident that did involve raising the scrap chute to clear a paper jam is 

what led AJM to establish its work rule prohibiting the practice.

20 Accordingly, we find the 

19 The prior incidents were described as follows in the record: laceration when cutting die dropped; 

laceration while improperly inserting hand in cylinder to clear scrap paper from cutting die; 

cut/fracture to pinky while clearing scrap from operator side of a running machine; and amputation 

from cutting die while clearing paper jam.

20 As described above, that incident differed from the incident at issue here in that the adjuster did 

not shut down the PCM or raise the scrap chute to balance it in the upward position. Instead of 

the scrap chute falling on his fingers, his fingers contacted the reciprocating cutting die as he was

pushing the scrap chute upward from the rear of the machine. 
15 

Secretary failed to show that AJM did not adequately anticipate hazards associated with raising 

the scrap chute while clearing paper jams. 

Enforcement of Work Rules

Last, we agree with the judge that the Secretary failed to establish that AJM’s disciplinary 

program was ineffective or inadequate. AJM has a general progressive disciplinary policy for 

violations of “safety regulations or common safety practices,” and the record contains 88

documented disciplinary actions for violations of that policy. The company also has a separate 

progressive disciplinary policy for violations of its LOTO program.21 We find that AJM’s 

extensive documentation of disciplinary actions supports the judge’s conclusion that the Secretary 

failed to prove AJM inadequately enforced its safety program. See S.J. Louis, 25 BNA OSHC at 

1900 (record of numerous safety-related disciplinary actions shows implementation of progressive 

disciplinary policy even though no recent disciplinary actions for violation at issue); Thomas 

Indus., 23 BNA OSHC at 2088-89 (discipline adequate where employer had disciplined employees 

for violations of its safety program and disciplinary reports show that employees involved in fall 

protection violation at issue had never been disciplined for personally violating fall protection 

rules). 

We are also not persuaded by the Secretary’s claim that AJM’s reliance on undocumented 

verbal discipline means the company failed to enforce its work rules adequately. The Commission 

has held that verbal discipline coupled with documented written discipline can constitute effective 

enforcement. Compare S.J. Louis, 25 BNA OSHC at 1900 (finding effective enforcement where 

record shows company provided corrective informal training and disciplinary actions when it 

discovered safety work rule violations), and Aquatek Sys. Inc., 21 BNA OSHC 1400, 1402 (No. 

03-1351, 2006 (finding that verbal reprimand demonstrates employer enforced safety rules), with 

Stark Excavating Inc., 24 BNA OSHC 2218, 2221 (No. 09-0004, 2014) (consolidated) (evidence 

of only verbal discipline undermined progressive disciplinary policy where the policy expressly 

required written warnings). And, as the judge found, the record shows that the Plant Manager 

instructed supervisors to “use their own latitude” to issue verbal warnings or written discipline, if 

21 Although, as the Secretary points out, none of the disciplinary records submitted into evidence 

were issued pursuant to the LOTO program disciplinary policy, it appears that employees who 

violated the LOTO program were issued discipline under the company’s general disciplinary 

policy, as was the case for the injured adjuster. 
16 

necessary, and AJM’s supervisors testified that they commonly relied on verbal warnings and 

counseling to address observed safety violations. 

Finally, contrary to the Secretary’s argument, AJM’s decision to delay disciplining the 

injured adjuster does not support a finding of ineffective enforcement. See Precast Servs, Inc.., 17 

BNA OSHC 1454, 1456 (No. 93-2971, 1995) (“Commission precedent does not rule out 

consideration of post-inspection discipline, provided that it is viewed in conjunction with preinspection discipline.”), aff’d, 106 F.3d 401 (6th Cir. 1997). It is undisputed that the company 

waited twelve days to discipline the employee and that it normally issues discipline within a day 

of an infraction. The Secretary attempts to compare this to the eight-month disciplinary delay that 

occurred in Cooper/T. Smith Corp. d/b/a Blakeley Boatworks Inc., No. 16-1533, at 7 (OSHRC 

2020), which the Commission found weighed in favor of ineffective enforcement. But considering 

the record evidence of enforcement here, we find that one instance of discipline delayed for days, 

not months, is insufficient to establish that AJM’s overall enforcement efforts were ineffective. 

See Thomas Indus., 23 BNA OSHC at 2088-89 (where employer had established that it had 

disciplined employees for safety violations in the past, employer’s decision to forgo discipline in 

one instance did not establish ineffective enforcement). Accordingly, we find the Secretary failed 

to prove that AJM’s disciplinary program was inadequate. 

Conclusion

For all these reasons, we find that the Secretary failed to show that AJM should have known 

of the conditions constituting the alleged violation. Accordingly, we vacate Instance (d) of Repeat 

Citation 2, Item 1. 

SO ORDERED.

 /s/ 

 Cynthia L. Attwood

 Chairman 

 /s/ 

 Amanda Wood Laihow 

Dated: April 1, 2022 Commissioner
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, D.C. 20036-3457 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 16-1865 

AJM PACKAGING CORPORATION, 

Respondent. 

DECISION AND ORDER

APPEARANCES:

For the Complainant: 

David M. Jaklevic, Esq. 

U.S. Department of Labor 

New York, New York

For the Respondent: 

Brent I. Clark, Esq.

Adam R. Young, Esq. 

Seyforth Shaw LLP 

Chicago, Illinois 

BEFORE: William S. Coleman 

 Administrative Law Judge

I. INTRODUCTION

The Respondent, AJM Packaging Corporation (AJM), manufactures paper plates and 

bowls at a facility in Vineland, New Jersey. AJM makes the paper products with large machines
2 

called “Peerless Cutting Machines” (PCMs).

1

 (Ex. C-44; Ex. R-18 at 13). AJM operates about 

thirty-three PCMs at its Vineland facility. (T. 734, 1725). 

Upon receiving a report that an amputation injury had occurred at the Vineland facility on 

May 8, 2016, the area office of Occupational Safety and Health Administration (OSHA) located 

in Marlton, New Jersey, assigned a compliance safety and health officer (CO) to conduct an 

inspection and investigation. The investigation resulted in OSHA issuing to AJM a one-item 

repeat citation and a one-item serious citation on September 30, 2016. 

The one-item repeat citation (as the Secretary amended in his complaint pursuant to 

Commission Rule 34(a)(3)) alleges that AJM violated the “control of hazardous energy 

(lockout/tagout)” (LOTO) standard, 29 C.F.R. § 1910.147, specifically subparagraph (c)(4)(i) 

thereof, which provides: “Procedures shall be developed, documented and utilized for the control 

of potentially hazardous energy when employees are engaged in the activities covered by this 

section.” AJM is alleged to have violated that provision in four discrete instances (designated

instances “a”, “b”, “c” and “d”) in the following identical manner for each instance: “Lockout 

procedures were not utilized and lockout devices were not affixed by an authorized employee 

performing tasks such as, but not limited to, clearing jams on the Peerless Cutting Machine.” 

Instances “a”, “b” and “c” were alleged to have occurred on or about August 25, 2016, with each 

instance pertaining to a different PCM. Instance “d” relates to the amputation injury that had 

precipitated the investigation and was alleged to have occurred “on or about” May 9, 2016. 2

1 The name “Peerless Cutting Machine” is derived from the name of the manufacturer, 

Peerless Machine & Tool Corporation. The citation identifies the machines using this name, 

although it is not apparent from the record that either AJM or Peerless ever used this nomenclature. 

2 In actuality, the amputation injury occurred on May 8, not May 9. AJM argues that the 

allegation that the violation occurred “on or about” May 9 fails to meet the requirement set forth 

in section 9(a) of the Occupational Safety and Health Act that a citation “describe with particularity 
3 

The one-item serious citation (as was twice amended, first in the Secretary’s complaint and 

again during the course of the hearing) alleges that AJM violated the “hand protection” standard 

codified at 29 C.F.R. § 1910.138(a), which provides in relevant part as follows: “Employers shall 

select and require employees to use appropriate hand protection when employees' hands are 

exposed to hazards such as those from ... thermal burns; and harmful temperature extremes.” The 

amended citation alleges that AJM violated this standard on or about August 17, 2016 in the 

following manner: “[AJM] did not provide or ensure use of hand protection to employees who 

were exposed to harmful temperatures from the paper products exiting the Peerless Cutting 

Machines.” (Complaint dated 2/13/2017, ¶ VIII, amended at T. 370-71).

AJM timely contested the citations and proposed penalties, bringing the matter before the 

independent Occupational Safety and Health Review Commission (Commission) under section 

10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (Act). 29 U.S.C. 

§ 659(c). The matter was assigned to the undersigned administrative law judge, who conducted 

the nature of the violation.” 29 U.S.C. § 658(a). (Resp’t Br. 49-50). That argument is rejected. 

The purpose of the particularity requirement of section 9(a) is to provide to an employer “fair 

notice of the nature of the alleged violation.” Meadows Indus., Inc., 7 BNA OSHC 1709, 1710-

11 (No. 76-1463, 1979). A citation can meet this requirement without going into “minute detail.” 

Id. Although section 9(a) does not explicitly require that a citation allege the time that an alleged 

violation occurred, Commission Rule 34(a)(2)(ii) does require that the Secretary’s complaint in 

Commission proceedings state “with particularity” the “time, location, place and circumstances” 

of each alleged violation. 29 C.F.R. § 2200.34(a)(2)(ii). 

The allegation in both the original citation and the subsequent complaint that the violation 

described in instance “d” occurred “on or about May 9” is sufficiently particular to meet the 

requirements of both section 9(a) and Commission Rule 34(a)(2)(ii). AJM received fair notice of 

the nature of the alleged violation and understood instance “d” to pertain to the amputation injury 

that had occurred on May 8. (See e.g., T. 44-50). AJM does not argue (and has not demonstrated) 

that its defense on the merits was prejudiced by the way the citation (or the subsequent complaint) 

averred the time of the alleged violation. See Gold Kist, Inc., 7 BNA OSHC 1855, 1862 (No. 76–

2049, 1979) (rejecting argument that citation be dismissed for lack of particularity where the 

employer’s ability to defend on the merits was not prejudiced).
4 

an evidentiary hearing in Philadelphia, Pennsylvania, on the following dates: October 17 to 19, 

2017; January 30 to February 2, 2018; and March 6 and 8, 2018. Post-hearing briefing was 

completed on June 18, 2018. 

The principal issues presented, and the decisions thereon, are as follows: 

• Did the Secretary prove by a preponderance of the evidence that on August 25, 

2016 employees Beals, Mendieta, or Thompson bypassed the scrap chute guard of 

an operating PCM to reach into the scrap chute to remove scrap paper? (Citation 2, 

item 1, instances “a”, “b” & “c”; § 1910.147(c)(4)(i)) 

Decision: No. The Secretary did not prove that any of those employees 

violated the terms of the cited LOTO standard in the manner averred by 

instances “a”, “b” or “c”. 

• Did the Secretary prove by a preponderance of the evidence that AJM should have 

known of the physical condition that violated the LOTO standard that occurred on 

May 8, 2016 (the physical condition being a raised scrap chute that could 

unexpectedly fall and cause injury to an employee clearing a paper jam)? (Citation 

2, item 1, instance “d”; § 1910.147(c)(4)(i)) 

Decision: No. The Secretary did not prove AJM had failed to exercise 

reasonable diligence to prevent or discover the physical condition that 

constituted a LOTO violation, and thus failed to establish the “employer 

knowledge” element of the alleged violation. 

• Did the Secretary prove by a preponderance of the evidence that the residual heat 

present in the stacks of paper plates and bowls that exit the PCMs was likely to 

expose employees’ hands to thermal burns or harmful temperatures? (Citation 1, 

item 1; § 1910.138(a)). 

Decision: No. The Secretary did not prove that employees were likely to be 

exposed to a significant risk of thermal injury and thus did not establish that the 

hand protection standard applies. 

The Secretary having failed to meet his burden to prove the alleged violations, both 

citations must be vacated. 

II. FINDINGS OF FACT

Except where the following findings indicate that the evidence was insufficient to establish 

a certain fact or indicates the absence of evidence bearing on a matter of fact, the following facts 

were established by at least a preponderance of the evidence:
5 

1. AJM Packaging Corporation (AJM) is a Michigan corporation and maintains its 

headquarters in that state. AJM manufactures and distributes paper products, including paper 

plates and bowls. (Answer ¶ 2; T. 716-17, 2441). AJM operates eight manufacturing facilities 

across the United States including facilities in Georgia, Michigan, California, and New Jersey. (T. 

716, 732-33). AJM distributes its products to major U.S. retailers. (T. 2732). AJM employs 

approximately 2,100 employees across the company. (T. 733). AJM is engaged in a business that 

affects interstate commerce. (Answer dated 3/6/2017, ¶¶ II & III). 

2. In 2009, AJM opened a facility in Vineland, New Jersey, to produce paper plates and 

bowls. (T. 573, 2441). The Vineland facility (Facility) operates 24 hours a day, with three eighthour shifts. (T. 733). In 2016, about 250 employees worked at the Facility, about 100 of whom 

staffed the first shift. (T. 732-33, 1433, 1866). 

3. AJM makes the paper plates and bowls at the Facility with machines that were 

manufactured by a company named Peerless Machine & Tool Corporation (“Peerless”). (T. 448, 

747, 1157-64; Exs. C-6; Ex. R-15 at 5-7). The machines are identified in this Decision using the 

acronym “PCM.” (See footnote 1, supra). Peerless designed the PCMs that AJM owned and 

operated at the Facility sometime before 1968, though the record does not indicate the year or 

years that Peerless manufactured any of the PCMs used at the Facility. (T. 1157, 1162). 

4. In 2016, AJM operated about 33 PCMs at the Facility, all of which were located on 

the Facility’s central production area, or “floor,” with each PCM identified by a number (numbers 

1 through 33). (T. 734-35, 2457). The PCMs were arrayed on the floor in two rows in the manner 

depicted in a schematic of the Facility at Exhibit C-2. This two-row configuration created a 

central aisle between the rows, with the output end of every machine facing inward toward the 

aisle. (T. 734, 737; Ex. C-2). All the PCMs were substantially similar in design and functionality. 
6 

(T. 73, 172-73, 304, 1200). 

Employee Roles

5. Employees called “adjusters” operate the PCMs. (T. 57-58, 764). (The activity of

adjusters is the subject of the LOTO citation.) Adjusters are responsible for observing the overall 

function of the PCMs, ensuring that the paper plates and bowls are formed correctly, and 

performing adjustments on the PCMs to ensure proper functioning. (T. 70-71, 170, 181-82, 303, 

764-65, 2732-33). Servicing tasks that adjusters perform include adjusting the rails, changing 

the air levels, replacing springs, and clearing paper jams that are simple enough not to require the 

intervention of AJM’s maintenance mechanics. (T. 73-74, 182-83, 305-06, 653-54, 1434-35, 

1947-48, 2021-22, 2340-41). Between eight and twelve adjusters typically work each shift. (T. 

1435, 2104, 2234-35). Experienced adjusters normally operate three or four PCMs at a time. (T. 

171-72, 641, 2017-18, 2392-93, 2459, 2733). 

6. Employees called “packers” are responsible for removing finished plates and bowls

from a runout table placed at the end of each PCM and then packing the product into plastic bags. 

(T. 764, 2000-01). (The activity of the packers is the subject of the hand protection citation.) 

Packers also check the quality of the finished plates and bowls and make sure the stacks of product 

have the correct quantity. (T. 2001-02). About half of the employees present for any given shift 

are packers. (T. 1935-36).

7. Employees called “balers” collect and bale scrap paper that is generated by the PCMs. 

(T. 2174-75). 

Manufacturing Process

8. The operation of the PCMs begins with the adjuster mounting a cylindrical roll of 

paper, about four feet wide, on a stand located at the rear of the PCM. (T. 60-61, 747-48, 1731-

32, 1585-86, 2012; Ex. C-6; Ex. C-51; Ex. R-18 at 8). The adjuster feeds the roll of paper upward 
7 

towards a mechanical paper feeder that is located at the top rear of the PCM. (T. 58-60, 605, 748-

49, 1731-32, 2349-50; Ex. C-6).

9. The PCM has a control panel located on what is known as the “operator’s side” of the 

machine. (T. 2042-44; Ex. C-16). After feeding the roll into the paper feeder, the adjuster goes to 

the PCM’s control panel and manipulates the controls to feed the paper downward through the 

feeder and into the PCM, where during production the paper passes into the cutting die (also 

referred to as the “blanking die” and the “cutting head.”). (T. 86-87, 749, 751, 601-02, 2736). The 

cutting die is a large orange-colored component that reciprocates in an up-and-down motion and 

is set to complete about 45 cutting cycles per minute. (T. 62-63, 187, 1140-41, 2503; see video 

clips at Exs. C-25 & C-26). In each cutting cycle the cutting die cuts five holes through the sheet 

of paper to produce five flat circle-shaped “blanks” (which moments later the PCM will form into 

plates or bowls). (T. 749-50, 1173, 2025; 2031; 2582). 

10. After the cutting die creates the flat circular blanks, the remnant of the paper (known 

as “scrap” or “skeletons”) drops a short distance onto the PCM’s “scrap chute.” (The scrap chute 

is a piece of sheet metal situated adjacent to the cutting die and extends horizontally across the 

width of the machine; the scrap chute is described in greater detail infra ¶¶ 17–21) After the scrap

paper drops into the scrap chute, a burst of forced air from an air nozzle located at the end of the 

scrap chute on the PCM’s operator’s side expels the skeleton from the scrap chute. The skeleton

exits the PCM through an opening on the non-operator side (or discharge side) of the PCM, where 

it falls into a bin positioned below the opening. (T. 752, 1023-24, 2029, 2031, 2542; see video 

clips at Exs. C-23, C-25 & C-26). The skeletons are expelled in-time with the movement of the 

cutting dies, so that a skeleton exits the PCM at a rate of about 45 times per minute. (See video 

clips at Exs. C-23 & C-25). 
8 

11. At the same time that the scrap paper drops into the scrap chute, the flat circular 

blanks drop by force of gravity underneath the scrap chute onto internal inclined metal rails. (T. 

2027-28; video clip at Ex. C-26). Each blank falls onto its own rail, which functions like a slide 

to guide the blanks to the heated forming dies. (T. 177, 2027-28; see video clip at Ex. C-25). The

movement of the blanks down the rails is halted by a mechanical component called the “blank 

stop.” (T. 2027-28). The blank stop catches the blanks and then releases them in time with the 

cutting die to control the flow of blanks into the forming dies. (T. 1172-74, 1915). Once released 

by the blank stop, the blanks continue to slide down the rails to the heated forming dies. (T. 63-

69, 2027-28). 

12. The forming dies use pressure and heat to form the flat circular blanks into the desired 

three-dimensional plate or bowl shape. (T 1266-67). Five sets of forming dies are positioned 

across the machine. (T. 66-67). Each set of forming dies consists of a top die and a bottom die. 

(1266-68). The forming dies open as the blanks approach from the rails and then compress 

together around the blanks as the blanks pass through. (T. 187-88, 1267-70). The forming dies 

typically operate between 250- and 350-degrees Fahrenheit but may operate as high as 425 degrees 

Fahrenheit in cold or humid weather. (T. 1268-71). 

13. After the forming dies open, the newly formed plate or bowl drops onto a horizontal 

conveyor that transports the product to a “stacker” for each of the five lanes, where the stacked 

plates are shaken or agitated so that they nest into a neat stack. (T. 1267, 2199; Ex. C-19). The 

plates or bowls accumulate in the stacker until the programmed quantity for a complete stack is 

reached. The programmed quantity of plates or bowls in a complete stack varies depending on 

customer orders, but common sizes include an 8-stack, a 25-stack, a 50-stack, and a 100-stack. (T. 

1267, 2296-98). When a complete stack has accumulated in the stacker, the PCM automatically 
9 

discharges the stack onto another conveyor that deposits the stacks onto a wood run-out table

situated at the front of each PCM. (T. 1267-68, 2196-98). The plate or bowl on the bottom of 

each stack would have been the first plate in that stack to have left the heated forming die, and the 

plate or bowl on the top of the stack would have been the last item in that stack to have left the 

forming die. (T. 2198-2201). 

14. Once a stack reaches the run-out table, a packer picks them up with their hands and 

then steps a short distance to a machine called a “bagger” that the packer uses to package the stack 

in a plastic bag. (T. 547, 1267-68, 2200-05; Ex. C-19). 

15. The PCMs can process single-ply and multi-ply paper. When single-ply paper is 

processed, each lane produces about 45 plates per minute, and a stack of eight plates would 

accumulate about every 10 seconds. When four-ply paper is processed, each cutting cycle results 

in the production of four plates per lane per cutting cycle (for a rate of about 180 plates per lane 

per minute, so that a stack of 100 plates would accumulate in about 35 seconds). (T. 2197-99, 

2298-2300). 

16. The run-out table is sufficiently wide to permit at least two stacks of plates or bowls 

to accumulate on the table while the PCMs continue to discharge stacks of product onto the table. 

(Ex. C-19; Ex. R-18 at 5, 14, 15, 26, 27; Ex. C-23). A stack that is nearest the location where the 

packers handle them would have been discharged from the stacker for a longer period than the 

stack that followed it. (T. 2019-20; Ex. R-18 at 26 & 32). There is no evidence regarding the 

duration that the finished stacks may remain on the run-out table before the packer must handle 

the stack to prevent the stacks of product from overflowing the run-out table. 
10 

PCM Components and Features

The Scrap Chute

17. The scrap chute on the PCMs is a piece solid steel sheet metal, weighing 

approximately 30 pounds, that is about five feet long and runs horizontally across the width of the

PCM from the operator’s side to the discharge side. (T. 592, 2542). There are two bends in the 

sheet metal—one right-angle bend, and one approximate 30-degree angle bend. These two bends 

give the scrap chute a shape that resembles the letter “J” when it is viewed from the operator’s

side. When the scrap chute is in its operating position, its “J” shape is canted clockwise about 45 

degrees, so that the interior angles of the scrap chute form a cradle onto which the scrap paper

falls. (T. 590-92; Ex. C-12). 

18. Sometime before the Facility opened in 2009, AJM modified the way the scrap chutes 

were mounted and secured in the PCMs. (T. 1335). As Peerless originally designed and 

manufactured the PCMs, the scrap chute was fixed in place in the canted operating position 

described above and could be moved only by first removing mounting hardware, which would 

require several minutes to do. (T. 1167-70, 1178). AJM modified the way the scrap chute was 

mounted so that it could be pivoted counterclockwise from its tilted operating position about 45 

degrees (so that its “J” shape was oriented upright) without having to remove the mounting bracket. 

(T. 591, 1096; compare Ex. C-12 [scrap chute depicted in canted operating position] & Ex. C-5A 

[scrap chute depicted in upright raised position]). With this modification, it became easier for 

workers to reach into the scrap chute area through the opening that was protected by the scrap 

chute guard (the scrap chute guard is described in detail infra ¶¶ 25–27) because the mounting 

bracket did not present a physical obstacle to doing so. (T. 1342-46). 
11 

19. After a scrap chute is pivoted up to an upright position, it could remain balanced in 

place, but if jostled it could fall by force of gravity and return to its canted operating position. (T. 

211-12, 222, 592, 361-62, 616; Ex. C-5).

20. The scrap chute is not powered by any device or mechanism, and it does not move 

during machine operations from its canted operating position. (T. 538, 2541-43). When the scrap 

chute is in its operating position, its weight keeps it from pivoting or moving upward by itself 

during operations. (T. 538-39). 

21. At the time of OSHA’s 2016 inspection, an employee could pivot the scrap chute 

upward while positioned in two different locations: (a) from the side of the scrap chute, by reaching 

through the opening protected by the scrap chute guard located on the operator’s side (the scrap 

chute guard is described infra ¶¶ 25–27); and (b) from below the scrap chute, by pushing up on 

the scrap chute from the rear of the PCM while positioned near the PCM’s rear access doors (the 

rear access doors are described infra ¶¶ 33–34). (T. 591, 615-1, 656, 1096, 1346-47). 

22. After AJM modified the way the scrap chutes were mounted, AJM did not provide 

adjusters with any means to block a raised scrap chute to prevent it from falling to its canted 

operating position. (T. 361, 591, 1096). Only the counterbalance of the scrap chute’s weight kept 

it in an upright position. (T. 361, 591, 1096). 

Machine Guards

23. AJM did not acquire the PCMs in use at the Facility when they were newly 

manufactured, but rather acquired previously owned PCMs from sources other than the 

manufacturer. (T. 1372). In addition to modifying the manner in which Peerless had designed the

scrap chutes to be mounted as described above, AJM further modified the PCMs by designing and 

installing some components that are unique to the PCMs that AJM owned and operated. (T. 1162). 
12 

24. The PCMs as originally manufactured had an exterior framework that extended about 

two feet out from the operator’s side and that had guards or barriers that were designed with 

“interlocks” so that the PCM would shut down when opened. (T. 1185, 1215-27). AJM removed 

that exterior framework and designed and installed two door-like guards that did not have an 

interlock feature (one for the scrap chute and the other for the forming die), so that the PCMs could 

run even if the guards were open. (T. 623-33, 1325-26, 1364; Ex. C-4).

25. AJM designed and installed a guard for the scrap chute that was a rectangular hinged 

metal door (hereinafter referred to as “scrap chute guard”) on the exterior frame on the operator’s 

side of the PCM. (T. 587-88; Ex. C-4A, door marked with the number “2”). The scrap chute guard 

appears to be about 12 inches high by about 15 inches wide and is canted at the same angle as the 

scrap chute in its operating position. (Ex. C-12). The scrap chute guard’s hinge was on the higher 

(right) side of the guard and a handle was on the lower (left) side, so that if the guard were opened 

it would fall shut by force of gravity unless it was held open or propped open. (T. 82, 2463-64, 

2572). 

26. The face panel of the scrap chute guard was made of metal grating, so that when the 

guard was closed the interior scrap chute area of the PCM (and any scrap paper in that area) was 

visible through the grating. (T. 587-88; photo at Ex. C-5; video clip at Ex. C-25). The scrap chute 

guard could be opened by turning its handle to unlatch it and then pulling outward and upward on 

the handle to open it. (T. 2049). This action of opening the scrap chute guard could be swiftly 

completed. (T. 1902, 1968-70, 2306-07). AJM designed the scrap chute guard to allow employees 

easier and quicker access to the scrap chute. (T. 1326). 

27. The scrap chute guard that AJM designed and installed had no “interlock” feature, so 

a PCM would operate regardless whether the scrap chute guard was closed or open. 
13 

28. A second metal door-like guard that AJM designed and installed was known as the 

“forming die guard.” The forming die guard is located below and to the left of the scrap chute 

guard and was similar in size to the scrap chute guard. (T. 1580; Ex. C-4A, door marked with the 

number “1”). The forming die guard was not hinged, but it could be removed from the PCM by 

first twisting a handle to unlatch it and then pulling on two handles to remove it. Like the scrap 

chute guard, the forming die guard also did not have an interlock feature, so the PCM would 

continue to run if the guard were removed when the machine was operating. (T. 587-88, 1842, 

1912-13). 

29. Peerless had manufactured the PCMs with safety interlock features to prevent 

operators from being exposed to the moving parts inside the scrap chute and forming die areas of 

operating machines. (T. 1186-87). After Peerless learned that AJM was operating PCMs from 

which this interlock feature had been removed or bypassed, Peerless informed AJM in 2001 and 

again in 2008 that it believed this modification was unsafe because it enabled the machine to 

continue operating when the scrap chute guard or the forming die guard (both of which were 

designed and installed by AJM, not Peerless) were open. (T. 1203-12, 1360-66; Exs. C-44, C-49, 

C-5A). Peerless’ stated concerns did not cause AJM to modify the scrap chute guard or the forming 

die guard to include a safety interlock feature. 

Cutting Die Guards

30. After OSHA commenced the investigation, AJM began installing “cutting die 

guards” (also referred to as “finger guards” and “blanking die guards”) inside the scrap chute area

of all the PCMs at the Facility in a measure to protect employees hands and arms from contacting

the cutting die when accessing the scrap chute area through the opening that is guarded by the 

scrap chute guard. (Ex. C-11, T. 308-09, 311-13, 589-90, 691, 820-22, 1091-92, 1275, 2130, 2511, 

2530; Ex. R-18 at 29). By August 25, 2016 (the date of three alleged instances of the LOTO 
14 

citation), a cutting die guard had been installed on four PCMs (nos. 7, 9, 13 and 14). (T. 691, 

1011-12, 2530, 2511). PCM #13 was being operated by Brandon Mendieta during the CO’s 

walkaround on that day. (PCM #13 is identified in connection with instance “b” of the LOTO 

citation.) Even for PCMs in which cutting die guards had been installed, AJM required employees 

to continue to abide by the work rule that the scrap chute guard remain in place when the PCMs 

were in operation. (T. 1967, 2431-33, 2512-15).

31. The evidence is insufficient to establish that an employee would be exposed to 

hazardous energy when opening the scrap chute guard and inserting a hand or arm into the scrap 

chute of an operating PCM on which a cutting die guard had been installed. (T. 163, 1012-13, 

1914, 1968, 1880-81, 2012, 2130). 

32. In PCMs in which cutting die guards had not been installed, the scrap chute area of 

the PCMs was hazardous. (T. 2305-06, 2431-33). The cutting die is located near the edge of the 

scrap chute, and an arm or hand inserted into the scrap chute area could make contact with the 

cutting die and would necessarily come within a least few inches of the cutting die. (T. 188-190, 

313-14, 318-19, 1144, 2129; Exs. C-12 & C-26). If a hand or finger contacted the cutting die while 

the cutting die is reciprocating, a serious laceration or amputation injury would be likely. (T. 87, 

1143-44). Contact with the cutting die can cause a laceration even when the cutting die is not 

reciprocating. (T. 590). 

Interlocked Rear Access Doors

33. At the rear of each PCM are two adjacent doors (“rear access doors”) that open and 

close like French doors, with the right door hinged on its right side and the left door hinged on its 

left side. Each door is about three feet high and two feet wide. The surface of the PCM on which 

the doors are mounted is on a plane that is declined at about a 45 degree angle, and so when the 

doors are unlatched they fall open downward toward the floor by force of gravity (although 
15 

pneumatic cylinders slow the pace at which the doors fall open). (T. 603-06, 1145, 2066, 2274, 

2485; Exs. C-22, R-18 at 23). The face panels of the rear access doors are metal grating, and so 

when the doors are closed the machinery behind them is visible through the grating. (Ex. R-18 at

23). 

34. The rear access doors are not visible from the PCM’s control panel. (Ex. C-22). To 

get to the rear access doors from the control panel, adjusters must walk to the rear of the PCM. (T. 

606, 1909-10). 

35. The rear access doors provide access to the underside of the cutting die, the scrap 

chute, and other internal machine components. (T. 625-26, 1909-12, 2352-53, 2487-88, 2582-83). 

It is routine for adjusters to open the rear access doors to clear paper jams, and typically this must 

be done for each PCM about four to six times per shift. (T. 2488). 

36. The rear access doors have a safety interlock, whose circuitry involves a micro-switch 

that is spring loaded and that must be depressed to activate power to the PCM. (T. 2487). A PCM 

will not run when a rear access door is open, because the non-depressed micro-switch breaks the 

circuit to the machine. (T. 2719). The micro-switch is designed so that if it fails, it must fail in 

the open (off) position, opening the circuit and cutting power to the system. (T. 1876-77, 2487, 

2787-88). AJM trains its employees that the rear access doors have this interlock feature and that 

they are not required to utilize LOTO procedures when accessing the PCMs through the rear access 

doors. (T. 1912, 1977-78, 2274, 2321-22, 2328, 2353-55). 

37. AJM allows employees to open the rear access doors and access the PCMs through 

the open doors without using LOTO procedures because AJM determined that the PCMs could 

not operate when the doors were open. (T. 1910, 2414-17). There was no scientific, technical, or 

other specialized evidence that AJM was incorrect when it concluded that after a rear access door 
16 

is opened that a PCM is not capable of unexpectedly energizing or starting up, or releasing any 

stored hazardous energy, even if the control circuitry for the interlocked rear access door was to 

fail. (E.g., T. 2274, 2719, 2788). 

Emergency Stops (E-stops)

38. The PCMs are equipped with three emergency stop buttons, known as “e-stop” 

buttons. (T. 621-22). One e-stop button is located on the control panel on the operator’s side, 

another is located near the run-off table, and another is located on the PCM’s discharge side. (T. 

354-55, 583, 622, 1228, 1993, 2350; see R-18 at 3, 7, 24). When an e-stop is activated, it breaks 

the circuit to all power to the PCM and the machine shuts down. (T. 583-84, 621-22). 

39. The e-stops are on the same electrical circuit as the interlocked rear access doors and

have the same electrical effect on the machine in terms of cutting the circuit when they are 

activated. (T. 620-22, 1227-28, 2487). When an e-stop breaks or stops functioning, it does so in 

the “off” position, rendering it impossible to restart the machine. (T. 1876-77, 2481-82). 

40. The e-stop on the control panel is situated such that it is within arm’s reach of a 

normal sized adult who is accessing the scrap chute through the scrap chute guard. (T. 618-20, 

2350-51, 2255; see R-18 at 3). 

41. When an e-stop button is depressed to engage the e-stop, the button itself illuminates 

with a red-colored light. (T. 1993, 2254). Engaging an e-stop also causes another red-colored 

light located on the top of the PCM to illuminate, signifying that the PCM is not running. (T. 2269, 

2579). To restart a PCM after an e-stop has been engaged, the e-stop must be disengaged by 

turning and pulling on the e-stop button, and then the adjuster must execute a prescribed startup 

procedure. The startup procedure includes an administrative procedure that entails the adjuster 

surveying the entire machine, returning to the control panel, hollering the word "clear," and then 
17 

waiting a few beats before restarting the PCM from the control panel. (T. 2267, 2482-83, 2267-

68; Ex. R-19). The PCMs make an audible beeping noise upon restarting. (T. 160). 

42. No scientific, technical or other specialized evidence was presented that would 

establish that after an e-stop on a PCM has been engaged, that the PCM is capable of unexpectedly 

energizing, starting up, or releasing any stored hazardous energy, even in the circumstance in 

which the e-stop were to fail. 

Lockout/Tagout 

43. AJM has a general energy control program at the Facility, called the Control of 

Hazardous Energy Lockout/Tagout Policy, that generally governs LOTO at the Facility. (T. 432; 

Ex. C-3). AJM trains adjusters as “authorized” employees (as that term is defined in 29 C.F.R. 

§ 1910.147(b)) and issues adjusters personal locks that they must keep on their belt loops. (T. 

2789). 

44. AJM has developed written machine-specific LOTO procedures for each of its 

machines, including the PCMs. (T. 413-14, 2474-75; Ex. R-15). These machine-specific 

procedures are tagged on each machine. (T. 2474-76). AJM conducts monthly unannounced 

random inspections requiring selected authorized employees to demonstrate proficiency in

executing a machine’s LOTO procedure. (T. 1481-86, 2160, 2417-18; Ex. R-5). 

Clearing Paper Jams 

LOTO Method and E-Stop Method

45. Paper may become jammed in a variety of locations in PCMs, including the feeder, 

the cutting die, the scrap chute, the rails, and the forming dies. (T. 74, 87-90, 306, 2037-38, 2042-

44, 2488-89). The adjusters are generally responsible for clearing paper jams. (T. 73-74, 87-90, 

183, 194, 305). 

46. AJM uses the term “paper jam” to describe scrap paper improperly accumulating in 
18 

the scrap chute, even in those circumstances when the PCMs continue to operate and produce 

finished products despite the accumulation. (T. 2253, 2290, 2292, 2314). 

47. It is a common occurrence for scrap paper to fail to be discharged from the scrap 

chute and sometimes accumulate there over multiple cycles of the cutting die. (T. 87-90, 183-85, 

196, 225-26, 306, 2037-39, 2491-92, 2534-35). This can happen in a variety of ways. Scrap

sometimes accumulates because the air nozzle malfunctions and fails to blow it out. (T. 87-90, 

183-84, 306, 2037-38). Dull blades on the cutting die can result in scrap paper accumulating in 

the scrap chute. (T. 306). Sometimes the scrap paper gets snagged on the air nozzle or on the 

frame. (T. 196, 225-26). Sometimes the exit portal on the discharge side becomes blocked, causing

scrap paper to back up in the scrap chute. (T. 185). 

48. The PCMs shut down automatically when sensors that are located between the 

forming die and the stacker detect that newly formed plates are not exiting the forming die. (T. 

2041, 2101). The accumulation of scrap paper in the scrap chute sometimes triggers these sensors 

and causes the PCM to shut down automatically. (T. 2041). But it is also possible for scrap paper 

to accumulate in the scrap chute and for finished plates and bowls to continue to exit the forming 

die. In that situation, a PCM would not shut down automatically but would continue to run until 

an employee manipulated the controls or engaged an e-stop. (T. 2041). 

49. Regardless whether a PCM shuts down automatically when scrap paper fails to be 

discharged from the scrap chute, an adjuster is required to remove the scrap paper from the scrap 

chute. This is typically done by the adjuster reaching into the scrap chute to remove the scrap 

paper by hand, and not by using a tool or instrument. (T. 330, 2488-89). 

50. In clearing scrap paper from the scrap chute, AJM allows employees to access the 

scrap chute through the scrap chute guard on the operator’s side of a PCM by shutting down the 
19 

PCM in one of two ways. One way is for the employee to implement the PCM’s LOTO 

procedures. The other way is for the employee to stop the PCM by engaging the e-stop button 

located on the control panel, opening the scrap chute guard and then reaching into the scrap chute 

to grasp and remove the scrap paper manually (all the while remaining within arm’s reach of the 

e-stop), and then re-starting the machine using a prescribed protocol. (T. 228-29, 353-54, 588, 

2253-55, 2419-20, 2278, 2816-17, 2632). [NOTE: For ease of reference, these two methods for 

clearing paper jams by accessing the scrap chute through the open scrap chute guard are henceforth 

referred to respectively as the LOTO Method and the E-Stop Method.] 

51. If in the course of clearing a paper jam using the E-Stop Method it becomes necessary 

for the adjuster to move away from within arm’s reach of the e-stop, the employee must abandon 

use of the E-Stop Method and continue only after executing the PCM’s LOTO procedure. (T. 

240). 

52. There is no evidence that any of the three adjusters who were operating the PCMs 

identified in instances “a”, “b” or “c” of the LOTO citation were utilizing the E-Stop Method at 

the time that the violative conditions were alleged to have occurred on August 25, 2016. 

53. There was no scientific, technical, or other specialized evidence that employees who 

serviced or maintained the PCMs by utilizing the E-Stop Method would be exposed to the 

unexpected energization or startup of the PCM or the release of hazardous energy. 

Bypassing Scrap Chute Guard to Clear Paper Jams

54. Some adjusters developed a practice of sometimes not using either the LOTO Method 

or the E-Stop Method to clear scrap paper from the scrap chute. Instead, some adjusters sometimes 

bypassed the scrap chute guard of operating PCMs and reached inside the scrap chute area to 

manually grab and remove the scrap paper as the PCM continued to run. (T. 87-89, 92-93, 194, 

199-201, 316-19, 660-62, 1127). Some adjusters learned this technique from other adjusters early 
20 

in their employment. (T. 92-93, 201-03, 319-21, 334, 662-63, 670-72). Use of this technique 

violated AJM’s work rule that all guards be closed while a PCM is running. 

Work Rules for Adjuster Servicing Activities

55. On February 6, 2015, an adjuster sustained an amputation injury at the Facility while 

attempting to clear a paper jam located in the cutting die. (T. 467-69, 601-02; Ex. C-37 at 47). In 

his effort to clear the paper jam, the employee stopped paper feeding to the cutting die, but he did 

not shut down the PCM so the cutting die continued to reciprocate in its cutting action. (T. 634-

35). With the PCM cycling in this way, the employee moved to the rear of the PCM near the 

interlocked rear access doors, and without opening the rear access doors (and thus not activating 

the interlock feature of those doors) he inserted his arm into the machine through an opening that 

is near the rear access doors. (T. 631-32). With the cutting die continuing to reciprocate, the 

employee pushed up on the scrap chute so that it pivoted upwards. The lifting of the scrap chute

created space for his fingers to contact the reciprocating cutting die and resulted in him sustaining 

the amputation injury. The amputation injury was not caused by the scrap chute falling down from 

its raised position, but rather was the result of the scrap chute’s raised position creating a space 

through which the employee could insert his hand and expose his hand to the reciprocating cutting 

die. (T. 629-36). 

56. The activity related to the amputation injury on February 6, 2015 resulted in OSHA 

issuing a citation to AJM in July 2015 that alleged two violations of two different provisions of 

the LOTO standard, specifically §§ 1910.147(c)(4)(i) and 1910.147(d)(4)(i). (Exs. C-27, C-28). 

Those alleged violations became a final order of the Commission on August 11, 2015, by operation 

of an informal settlement agreement resolving the citation. (T. 852-53, 855-60; Ex. C-30). 

57. A few days after the amputation injury on February 6, 2015, AJM instituted a rule 

that prohibited adjusters from raising the scrap chute to clear a paper jam. (T. 1051-52, 2422-23; 
21 

Ex. R-14 at 3-5). AJM trained adjusters on the new rule and documented that training by having 

the adjusters sign a training document that provided as follows: 

The following employees have received training on; [sic] not to raise 

the scrap shoot [sic]3 to clear a jam.

All adjusters: NEVER raise the scrap shoot [sic] to clear a jam. This 

shoot [sic] acts as a guard when clearing out jams from under the 

machine. Exposure to the scrap knife is extremely dangerous while 

the machine is running. To clear a jam, you must go under the 

machine and remove the jam with the scarp [sic] shoot [sic] in place. 

NEVER try to reach in from the sides of the machine. This is part 

of our safety SOP and is strictly enforced. (Lock out Tag out) 

In the training document, the ending parenthetical phrase “(Lock out Tag out)” was handwritten, 

while the remainder was in bold typeface. (Ex. R-14 at 3-5). The term “scrap knife” in the 

document is a reference to the cutting die. 

May 8, 2016 Injury to W.F. 

58. An employee with the initials W.F. was one of the 27 adjusters whom AJM trained 

in February 2015 on the new rule not to raise the scrap chute to clear paper jams. (Ex R-14 at 4). 

On May 8, 2016, about 15 months after the new rule was implemented, W.F. sustained a partial 

amputation of his middle finger as he was attempting to clear a paper jam located in the cutting 

die of PCM #16. 

59. W.F. sustained the injury when the PCM was shut down because he had activated 

an e-stop and he had also opened the interlocked rear access doors. W.F. had raised the scrap 

chute in trying to clear the paper jam, and he had finished clearing it when the scrap chute fell 

3 The use of the word “shoot” for its homonym “chute” is understandable in that scrap 

paper literally shoots out of the scrap chute’s discharge portal at the rate of about 45 times per 

minute. (See video clip at Ex. C-23). 
22 

from its raised position and pinched his middle finger against the stationary cutting die. (T. 469-

71, 602-03, 2734-35, 2792; Ex. C-37 at 60).

60. W.F.’s actions immediately preceding his amputation injury were as follows. W.F. 

discovered that blanks were jammed near the cutting die. (T. 2735-37). Despite the jam, the 

PCM had continued to cycle, so W.F. shut down the PCM by engaging the e-stop button on the 

control panel. (T. 2737-38; Ex. C-16). W.F. then walked to the back of the PCM, opened the 

rear access doors, and saw about 60 blanks jammed near the cutting die. (T. 2738-41; Ex. C-22). 

He reached up and tried to pull the blanks out with his hand, but they were too tightly jammed 

for him to do so. (T. 2741-44). W.F. believed that his effort to remove the jammed blanks was 

being impeded by the scrap chute. He returned to the operator’s side of the machine, opened the 

hinged scrap chute guard to access the scrap chute, and then pivoted the scrap chute up to its 

raised position. He then attempted to remove the jammed blanks by reaching his arm through the 

open scrap chute guard, but without success. (T. 602-03, 2741-45). W.F. then returned to the 

opened rear access doors and from that position he again reached up into the machine to remove 

the jammed blanks. (T. 2745-46). He succeeded in removing the jammed blanks from that 

position, and as he was finishing the scrap chute fell from its upright position and pinched his 

middle finger against the then stationary cutting die, resulting in the amputation of part of the 

finger. (T. 510-11, 603, 2746). The scrap chute had been in its raised position for about four to 

five minutes before it fell. (T. 2747). W.F. was taken to the hospital for treatment. He returned 

to work about four or five days later. (T. 530, 2112, 2761).

61. On May 25, 2016, about twelve days after W.F. returned to work, AJM imposed 

formal discipline on W.F. (a written warning) for having violated the work rule that prohibited 

raising the scrap chute. (T. 530-31, 2114-18, 2761; Ex. R-9 at 4). 
23 

62. None of the PCMs were outfitted with any means to secure the scrap chute in place 

once it had been raised to its upright position. AJM has never trained or instructed adjusters to 

attempt to secure the scrap chute in place after raising it to its upright position and has never 

provided adjusters with any means to do so. (T. 535, 591, 1096, 2744). 

63. W.F. learned to lift the scrap chute during his initial on-the-floor training in 2012, 

and it was his common practice to lift the scrap chute when clearing paper jams. (T. 2731-32, 

2746-47). AJM did not prohibit that practice until after the amputation injury that had occurred in 

February 2015. Before he was injured, W.F. lifted the scrap chute to clear paper jams 

approximately four times per shift, and he typically left the scrap chute in the raised position for 

at least one minute each time. (T. 2748). W.F. continued to do this even after he had been

instructed in February 2015 on the new rule not to lift the scrap chute to clear paper jams.

4

 

64. WF’s attempt to clear the paper jam on May 8, 2016 during which he was injured 

constituted a service or maintenance activity and was not itself part of normal production 

operations. 

65. AJM did not have actual knowledge before the amputation injury that W.F. had raised 

the scrap chute while attempting to clear the paper jam on PCM #16. 

66. The evidence is insufficient to establish that AJM failed to exercise reasonable 

diligence to prevent or discover that W.F. had raised the scrap chute of a PCM to an upright 

position while clearing a paper jam on May 8, 2016 (thereby creating gravitational energy that 

could unexpectedly release and cause him injury).

4 Sometime after W.F.’s amputation injury, AJM again modified the scrap chute by 

securing it in its canted operating position with pins that would have to be removed in order to 

raise the scrap chute. (T. 594). 
24 

2016 OSHA Inspection 

67. On May 26, 2016, the CO conducted an on-site inspection at the Facility and

inspected PCM #16, which was the PCM involved in the amputation injury that had precipitated 

the inspection. (T. 961-64).

68. On August 25, 2016, the CO returned to the Facility to investigate a complaint 

pertaining to cutting die guards having been installed on some PCMs but not on others. (T. 792). 

The CO conducted a walkaround inspection of the production floor, during which the plant 

manager (Roger Finckbone) and the human resource manager (Robert Cutler) accompanied him. 

69. The CO testified that during the walkaround he first observed adjuster Brandon 

Mendieta sticking his hand into an operating PCM (PCM #13) to remove scrap paper from the 

scrap chute area. (T. 830).

70. The CO testified that he then observed another adjuster (James Beals) doing “the 

exact same function” as the CO had just seen Mendieta do. (T. 831). 

71. The CO testified that he then turned his attention back to Mendieta and saw him 

removing scrap a second time from the same operating PCM (#13) by inserting his forearm into 

the scrap chute, and that Mendieta then “walked away from the machine, leaving the scrap chute 

door wide open.” (T. 832). 

72. The CO testified that in between the two times he observed Mendieta reach into PCM 

#13, he observed James Beals place his hand inside the scrap chute and remove scrap paper of

another operating PCM (PCM #27), in a movement that took one to three seconds. (T. 819, 823-

24). The CO did not make any comment or remark to either Finckbone or Cutler that he had seen 

Beals reach inside an operating PCM. (T. 1068, 1590, 2519). 

73. Neither Finckbone nor Cutler observed Beals reach in the PCM in the manner that 

the CO testified he had witnessed. Finckbone saw Beals do something else—he observed Beals 
25 

open the scrap chute guard of PCM #27 while the machine was operating and peer into the scrap 

chute area. Finckbone further observed Beals rapidly close the scrap chute guard after Beals 

realized that Finckbone was observing him violate the work rule that all guards be closed during 

machine operations. (T. 1589, 2516-18, 2516-17, 1589). Finckbone instructed his staff to issue a 

written warning to Beals for this violation of a work rule, but no such warning was issued. (T. 

2529-30). 

74. The CO testified that he then saw adjuster Andrew Thompson open the scrap chute 

guard of PCM #30, reach his hand into the scrap chute area up to mid-forearm, remove the excess 

scrap paper, and close the scrap chute guard, in movements that took only one to three seconds. 

(T. 839). The CO did not tell either Finckbone or Cutler what he believed he had seen Thompson 

do. (T. 1068). The CO observed Cutler approach Thompson and speak to him, although the CO 

could not hear what was being said between them. (T. 840). When Cutler returned to the CO’s 

side, he remarked to the CO that Thompson would be “retrained,” and there was no further 

discussion between the two about Thompson’s activities. (T. 840, 1065-66). 

75. When the CO saw Cutler speaking privately to Thompson in the course of the CO’s 

walkaround, Cutler was reprimanding Thompson for having left the forming die guard off the 

PCM. (T. 1588). 

76. During the CO’s investigation, the plant manager (Finckbone), the human resources 

manager (Cutler), and one of the floor supervisors (Lena Mays), each told the CO that employees 

were required to employ LOTO procedures whenever clearing a paper jam, and that there were no 

exceptions to this policy. (T. 779-81, 2853). In their communications with the CO over the course 

of the inspection and investigation, none of AJM’s managers or floor supervisors volunteered the 

information that adjusters had the option to utilize the E-Stop Method when clearing scrap paper 
26 

from the scrap chute area, or ever mentioned to the CO the existence of the E-Stop Method. (T. 

2851, 2853). 

Training

77. New employees who are hired to become adjusters initially receive classroom 

training on a variety of subjects, and then they are assigned to work alongside an experienced 

adjuster whose task is to teach the new employee how to do the various tasks necessary to operate 

the PCMs. This aspect of new adjuster training is known as “on-the-floor” training, and the new 

employees being trained are known as “adjuster-trainees.” The duration of an adjuster-trainee’s 

on-the-floor training varies from three to six months. (T. 1740-42, 1925-26, 2014-15). The on-thefloor training is deemed completed once the adjuster-trainee demonstrates to the trainer 

proficiency in 93 tasks that are detailed on a five-page “New Adjuster Checklist.” (Ex. R-35 at 5-

10; Ex. R-41 at 59-65; T. 2083-90). There are at least three or four experienced adjusters who are 

designated to provide on-the-floor training to adjuster-trainees, although the record does not 

indicate the precise number. (T. 2430-31). There is no evidence addressing what training or 

instructions the experienced adjusters receive, if any, regarding the content and manner of 

conducting on-the-floor training of the adjuster-trainees. 

Supervision on the Production Floor

78. AJM’s production managers spend the majority of their time on the production floor, 

observing and monitoring the activities of the 8 to 12 adjusters who are on the floor during any 

given shift, as well as monitoring the activities of the packers and other workers on the production 

floor. (T. 1432-33, 1435, 1592, 1861-62, 1881-82, 1929, 1931-32, 1934, 2188-89, 2335-37, 2455-

57, 2565-66). 
27 

Discipline

79. AJM has a formal written disciplinary policy that includes a rule (Rule 6) that 

addresses safe work practices, and which provides as follows: 

Non-compliance with safety regulations or common safety practices or 

failing to immediately reporting [sic] injures [sic] to supervisor is strictly 

prohibited. Conduct such as, but not limited to, running on the premises, 

horseplay, throwing objects, pushing or shoving, failure to wear safety 

apparel, or performing an unsafe act will not be tolerated. 

1st Violation – Written Warning 

2nd Violation – 3 Day suspension 

3rd Violation – Discharge

(Ex. R-22, at 3). 

80. AJM’s supervisors and managers have discretion not to apply the progressive 

disciplinary protocol specified in Rule 6, but rather are permitted to render informal oral discipline 

and corrective action to an offending employee in lieu of initiating the formal discipline prescribed 

by the disciplinary policy. (T. 527-28, 1473-75, 2166, 2180-81, 2292, 2453-54, 2534). 

81. AJM’s written LOTO policy specifies a progressive discipline protocol for violations 

of that policy that is marginally more lenient than the progressive discipline protocol set forth in 

Rule 6. The progressive discipline protocol set forth in the LOTO policy provides for imposing 

an oral warning for a first violation, a written warning for a second violation, and termination for 

a third violation. (Ex. C-3 at 10). There is no evidence that AJM had ever disciplined an employee 

for a violation of the LOTO policy. 

82. From time to time, AJM imposed progressive discipline at the Facility for safety 

violations according to the progressive discipline protocol set forth in Rule 6. The 104 documented 

instances of discipline for Rule 6 violations reflected in the record occurred in the years 2013 to 
28 

2017. 5 Ninety-seven of those 104 disciplinary events were for first offenses. (Ex. R-6; Ex R-23; 

Ex. R. 26 at 2–3, 9–10, 12-13; Ex. R-27 at 18). Eighteen of those 104 documented disciplinary 

events occurred after the citation was issued on September 30, 2016, and seventeen of those 

eighteen were for first offenses. (Id.) For the eight documented second violations of Rule 6, the 

prescribed three-day suspension was waived for three them. (Ex. R-6 at 1 and 81; Ex. R-26 at 9). 

AJM did not present documentation of any employee at the Facility having been cited for a third 

violation of Rule 6, for which termination is the prescribed sanction. The only evidence of an 

employee being terminated for a violation of safety rules was a single instance of an employee 

having been under the influence of alcohol when he sustained an amputation injury while trying 

to clear a paper jam from an operating PCM. (T. 2543-44; Ex. R-23 at 2).

5 The documentation of disciplinary action reflected in Exhibits R-6, R-23, R-26, and R27 has not been represented to reflect all documented discipline for violations of Rule 6 taken at 

the Facility in the years 2013 to 2017. The record does not contain information on the total number 

of documented instances of discipline for Rule 6 violations over that period. 

There are 94 documented instances of discipline for Rule 6 violations in Exhibit R-6. There 

are six additional instances of documented discipline for Rule 6 violations in Exhibit R-23 at pages 

4–7, 10–13, and 54. There are three additional instances of Rule 6 violations documented in 

Exhibit R-26 at pages 2, 3, 9, 10, 12 & 13. There is one additional Rule 6 violation reflected in 

Exhibit R-27 at page 18. 

The disciplinary events reflected in Exhibit R-23 at pages 14–53 and 62–92 are duplicates 

of discipline reflected in Ex. R-6. 

The discipline reflected at pages 55–61 of Exhibit R-23 involves a violation of Rule 7 

pertaining to threatening conduct and is a duplicate of the documentation reflected in Exhibit R26 at pages 21-29. That discipline does not involve a Rule 6 “safe work practices” violation. 

The documentation regarding employee injuries reflected in Exhibit R-23 at pages 1–3 and 

9 does not indicate any discipline having been taken with respect to those four employee work 

injuries. However, as to the amputation injury reflected by the incident report dated 2/24/2014 at 

page 2 of Exhibit 23, there was testimonial evidence that the injured employee was fired after AJM 

received test results indicating that he had been impaired by alcohol when he sustained the injury. 

(T. 2543-44). However, no documentation of disciplinary action taken against that employee was 

identified or offered in evidence. 
29 

Glove Policy

83. After the finished paper plates and bowls exit the forming die of a PCM, they travel 

a short distance by conveyors to a part of the PCM called the “stacker.” When a sufficient stack 

of the plates or bowls amass in the stacker (typically between 8 and 100 items in a stack) the stack 

proceeds on another conveyor to the wooden runout table. (T. 2196-99). The employees called 

“packers” then pick up the stacks with their hands. (T. 483-84). The stacks arrive on the runout

table still retaining heat that had been transferred to them from the brief time each plate or bowl 

was compressed in the heated forming die. (T. 2006). The amount of time a blank spends in the 

heated forming die is necessarily some fraction of 1.33 seconds. 

84. Packers work eight-hour shifts picking up stacks of plates and bowls as they exit the 

PCMs and then bagging them. (T. 553, 483-84). The packers pick up thousands of stacks over 

the course of each shift. (T. 483-84, 553-55). 

85. AJM requires that packers handling the stacks do so with either clean bare hands or 

while wearing clean gloves. (T. 486-87). For sanitation purposes, AJM requires that packers who 

have an open wound or a bandage on their hand, or who are wearing fingernail polish, wear cotton 

gloves that AJM provides. (T. 486, 515-17). 

86. AJM does not supply protective gloves to packers or other employees to protect the 

employees from the heightened temperature of the stacks of paper products. But some packers 

who are not required to wear gloves for hygiene reasons choose to wear gloves that they supply 

themselves, some to protect from paper cuts and friction from twisting plastic bags, and some to 

insulate their hands from the temperature of the plates. (T. 1937, 2004, 558; 804-08, 814). 

Approximately 75-80% of packers on the third shift choose not to wear gloves. (T. 1937).

87. The forming dies of the PCMs operate at temperatures of between 250 and 350 °F, 

but in colder weather the upper die may operate up to 375 °F and the lower die may operate up to 
30 

425 °F. (T. 1268). No evidence was presented of any measured temperatures of the finished stacks 

of paper plates or bowls. (T. 233-34, 867). 

88. There is no evidence of any packer or any other employee having ever been burned 

or blistered from the temperature of the plates exiting the PCMs. There is no evidence of any 

member of management receiving a complaint or report of any thermal injury to hands caused by 

handling the stacks of paper plates and bowls. 

III. DISCUSSION

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

of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) 

employees had access to the violative conditions; and (4) the cited employer had actual or 

constructive knowledge of those conditions. Donahue Indus. Inc., 20 BNA OSHC 1346, 1348 

(No. 99-0191, 2003). 

As discussed below, the Secretary failed to meet his burden to establish either the LOTO 

or the hand protection citation, so both citations must be vacated. 

A. Control of Hazardous Energy (LOTO) Citation – § 1910.147(c)(4)(i)

The Secretary alleges AJM violated subparagraph (c)(4)(i) of the LOTO standard 

(§ 1910.147), which provides as follows: “(4) Energy control procedure. (i) Procedures shall be 

developed, documented and utilized for the control of potentially hazardous energy when 

employees are engaged in the activities covered by this section.” 

The amended LOTO citation alleges that AJM violated § 1910.147(c)(4)(i) in four discrete 

instances (designated as instances “a”, “b”, “c” and “d”). Instances “a”, “b” and “c” were all 

alleged to have occurred on or about August 25, 2016, and to have involved respectively PCMs 

#27 (operated by James Beals), #13 (operated by Brendan Mendieta) and #30 (operated Andrew 
31 

Thompson). Instance “d” was alleged to have occurred on or about May 9, 2016 in connection 

with the amputation injury involving PCM #16 (operated by W.F.).6 

For each of the four instances of the alleged LOTO violation, the Secretary’s complaint 

sets forth identical descriptions of the manners in which AJM is alleged to have violated the 

standard. Each of the four instances avers that “[l]ockout procedures were not utilized and lockout 

devices were not affixed by an authorized employee performing tasks such as, but not limited to, 

clearing jams on the Peerless Cutting Machine.” (Emphasis added). Each of the four alleged 

instances was tried on this theory as pleaded—the alleged failure to utilize LOTO procedures.7

With respect to instances “a”, “b” and “c”, the Secretary’s theory of the case, as defined by 

the complaint and then developed by the evidence presented in his case in chief, was that on August 

25, 2016, three different adjusters operating three different PCMs bypassed the scrap chute guard 

and inserted their arm or hand into the scrap chute of an operating PCM to remove scrap paper 

from the scrap chute area. 

1. The LOTO Standard Applies to Instances “a” and “c” 

The LOTO standard applies to the conduct alleged to have occurred with respect to 

instances “a” and “c”. 

The LOTO standard’s “scope” provision states that the “standard covers the servicing and 

maintenance of machines and equipment in which the unexpected energization or start up of the 

6 As to the amputation injury having occurred on May 8, not on May 9, see footnote 2, 

supra. 

7 The averment in each instance that “lockout devices were not affixed” is a remnant of the 

allegations of the original LOTO citation item (subsequently amended by the Secretary’s 

complaint), which had alleged four instances of a violation of § 1910.147(d)(4)(i), which provides:

“Lockout or tagout devices shall be affixed to each energy isolating device by authorized 

employees.” (Complaint, 2/13/2017). AJM does not dispute that lockout devices had not been 

affixed in connection with any of the alleged instances. 
32 

machines or equipment, or release of stored energy could cause injury to employees.” 

§ 1910.147(a)(1)(i). 

An adjuster’s act of manually clearing scrap paper from the scrap chute area of a running 

PCM (as the Secretary alleges occurred in instances “a” and “c”) constitutes a servicing activity 

within the meaning of the term “servicing and/or maintenance” as defined in § 1910.147(b).8

 See 

Sec'y of Labor v. Action Elec. Co., 868 F.3d 1324, 1335 (11th Cir. 2017) (noting that the issue of 

the applicability of the LOTO standard does not necessarily turn on the “workplace activities” 

identified in the standard’s definition of “servicing and/or maintenance,” but rather that the 

standard’s “clear thrust ... is broadly to ensure safety where an employee performs legitimate 

workplace activities directed at the relevant machine” where the employee may be exposed to 

hazardous energy while engaged in such activities); Otis Elevator Co. v. Sec’y of Labor, 762 F.3d 

116, 123 (D.C. Cir. 2014) (determining the text of the LOTO standard contemplates its application 

to “unjamming” work, and also “comports with the standard's preventative purpose”). 

Whether an energy source presents the potential for hazardous energy involves a twopronged test: (1) whether unexpected energization, start up or release of stored energy could occur, 

and (2) if it can occur, whether it could cause injury to employees. Otis Elevator, 762 F.3d at 121; 

see also § 1910.147(c)(1) (requiring employers to establish a LOTO program “where the 

8 The LOTO standard defines the term “servicing and/or maintenance” in § 1910.147(b) as 

follows: 

Servicing and/or maintenance. Workplace activities such as 

constructing, installing, setting up, adjusting, inspecting, modifying, 

and maintaining and/or servicing machines or equipment. These 

activities include lubrication, cleaning or unjamming of machines or 

equipment and making adjustments or tool changes, where the 

employee may be exposed to the unexpected energization or startup 

of the equipment or release of hazardous energy. 
33 

unexpected energizing, start up or release of stored energy could occur and cause injury”); Control 

of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36644, 36666 (Sept. 1, 1989) (to be 

codified at 29 C.F.R. pt. 1910) (“If an energy source does not have the capability of causing injury 

to employees, it is not ‘hazardous energy’ within the scope of this standard.”).

As set forth in ¶ 32 of the Findings of Fact, the clearing of scrap paper from the scrap chute 

of a running PCM that lacked a cutting die guard involves placing a hand or arm within inches of 

the PCM’s reciprocating cutting die and would expose an employee to the hazardous energy 

present in the reciprocating cutting die. This is the service activity that is alleged to have occurred 

with respect to instances “a” and “c”. PCMs #27 and #30, (the machines identified respectively 

in instances “a” and “c”) had not yet been outfitted with cutting die guards on the day of those 

alleged violations (August 25, 2016), and thus the cited LOTO standard applies to the activity 

alleged for those two instances. See Burkes Mechanical, Inc., 21 BNA OSHC 2136, 2139-40 (No. 

04-475, 2005) (rejecting argument that the LOTO standard was not applicable on the asserted 

ground that “employees were aware the conveyor was running while they cleaned underneath it.”). 

2. The LOTO Standard Was Not Proven to Apply to Instance “b”

Instance “b” pertains to PCM #13 and the alleged conduct of adjuster Brandon Mendieta 

on August 25, 2016 of twice reaching into the PCM’s scrap chute to remove scrap paper when the 

machine was running. PCM #13 was one of four PCMs at the Facility on August 25, 2016 on 

which a cutting die guard had been installed. (Findings of Fact ¶ 30). As found in ¶ 31 of the 

Findings of Fact, the evidence was insufficient to establish that any employee who inserted an arm 

or hand into the scrap chute of an operating PCM that was outfitted with a cutting die guard could 

contact the cutting die. Even though AJM maintained a work rule forbidding employees from 

opening guards while PCMs were running (including PCMs in which a cutting die guard had been

installed), the evidence was insufficient to establish that it was possible for employees to sustain
34 

an injury from the reciprocating cutting die when bypassing the scrap chute guard and inserting a 

hand or arm into the scrap chute of an operating PCM on which a cutting die guard had been 

installed. See Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) 

(consolidated) (“An employer’s safety recommendations do not establish that such precautions 

were necessary in order to comply with a standard”), aff’d, 764 F.2d 32 (1st Cir. 1985). An 

essential element in determining whether the LOTO standard applies to any given workplace 

activity is that an employee could be injured while engaging in that activity. Otis Elevator Co., 

762 F.3d at 121. That essential element is absent with respect to the service activity alleged in 

instance “b” involving PCM #13 on August 25, 2016. 9

 

3. The LOTO Standard Applies to Instance “d”

The Secretary’s theory as to instance “d” is that hazardous gravitational energy is present

in a raised scrap chute that must be controlled during service or maintenance activities by a 

physical restraint such as a block to prevent it from unexpectedly falling and injuring an employee. 

(Sec’y Br. at 27-28). 

AJM argues that the LOTO standard is inapplicable to instance “d”, contending that the 

standard does not apply to gravitational energy that is “manually created by an employee after 

rendering the machine to a zero mechanical state.” (Resp’t Br. 52). This argument is rejected. 

9 While the evidence was insufficient to establish that any zone of danger existed in the 

scrap chute area that is accessed through the opening that is accessed through scrap chute guard of 

operating PCMs outfitted with cutting die guards, the evidence was similarly not conclusive with 

respect to whether the cutting die guard was adequate to protect employees from injury under those 

circumstances. The issue of whether the cutting die guard meets the minimum requirements of the 

machine guarding standard at subpart O of 29 C.F.R. pt. 1910 was not a matter put in issue by the 

pleadings, was not actually tried by the parties, and is not adjudicated herein. See McWilliams 

Forge Co., Inc., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (“Trial by consent [under 

FRCP 15(b)] may be found only when the parties knew, that is, squarely recognized, that they 

were trying an unpleaded issue.”) 
35 

AJM points to commentary in the LOTO standard’s preamble as support for its argument, but that 

commentary evinces the Secretary’s rationale for not incorporating the concept of “zero 

mechanical state” into the LOTO standard. 54 Fed. Reg. at 36678. 

More importantly, the text of the LOTO standard does not permit the interpretation that 

AJM urges. The LOTO standard “applies to the control of energy during the servicing and/or 

maintenance of machines and equipment.” § 1910.147(a)(2)(i). The defined term “service and/or 

maintenance” does not embody the temporal component that AJM now urges, but provides simply 

that the term means “[w]orkplace activities ... where the employee may be exposed to the 

unexpected ... release of hazardous energy” without reference to whether such “hazardous energy” 

was present either before or after servicing or maintenance activities commenced. § 1910.147(b) 

(quoted in full supra footnote 8). There are likely myriad scenarios involving the service or 

maintenance of complex machinery during which hazardous energy materializes while the 

workplace activity is progress. To allow such a workplace activity to proceed without requiring

that the hazardous energy be controlled to protect employees from injury would be at odds with 

the LOTO standard’s stated purpose “to prevent unexpected energization, start-up or release of

stored energy in order to prevent injury to employees.” § 1910.147(a)(3)(i); see also Action Elec., 

868 F.3d at 1335 (noting that the LOTO standard’s “clear thrust ... is broadly to ensure safety 

where an employee performs legitimate workplace activities directed at the relevant machine” 

where the employee may be exposed to hazardous energy while engaged in such activities). The 

cited LOTO standard applies to instance “d”. 

4. Collateral Issue as to Application of LOTO Standard – 

The “E-Stop Method” For Clearing Scrap from Scrap Chute

AJM’s work rules required that all guards on the PCMs be closed while the PCMs were

running. (Findings of Fact ¶ 30). Compliance with that rule would preclude an adjuster opening 
36 

the scrap chute guard for any purpose while a PCM is running, to include bypassing the scrap chute 

guard to manually clear scrap paper from the scrap chute.

AJM permitted adjusters to open the scrap chute guard and reach inside the scrap chute 

area of PCMs to clear scrap paper manually when the machines were not running by using either 

the LOTO Method or the E-Stop Method. (See Findings of Fact ¶ 50). The LOTO Method 

involves utilizing LOTO procedures. The E-Stop Method entails an adjuster activating the e-stop 

button located on the PCM’s control panel and then, while remaining within arm’s reach of the estop button, opening the scrap chute guard and manually clearing scrap paper from the scrap chute 

area. 

The Secretary argues that utilization of the E-Stop Method is itself violative of the LOTO 

standard, while AJM argues that the LOTO standard does not apply when adjusters employ the EStop Method. (Sec’y Br. 33-34; Resp’t Br. 74-79; Resp’t Reply Br. at 30-34). The E-Stop Method

is not directly implicated in adjudicating whether AJM violated the LOTO standard in any of the 

four instances alleged in the amended complaint, because there is no evidence that any of those 

instances involved employees utilizing the E-Stop Method.

10 It is therefore unnecessary to

adjudicate whether utilization of the E-Stop Method violates the cited LOTO standard as the 

Secretary contends. However, considering the substantial effort put into litigating this issue, the 

merits of the question are addressed herein for the benefit of both the parties and any reviewing 

tribunal that may be asked to consider the question. Because the Secretary failed to establish that

10 As to instances “a”, “b” and “c”, the Secretary does not argue, and none of the evidence 

suggests, that the CO observed any of the adjusters involved utilizing the E-Stop Method to remove 

scrap paper from the scrap chute. And as to instance “d” (relating to the amputation injury on May 

8, 2016), even though the employee had activated the e-stop button located on the PCM’s control 

panel before he raised the scrap chute to its upright position, he did not engage the e-stop as part 

of an attempt to clear scrap paper from the scrap chute (as adjusters do when utilizing the E-Stop 

Method). (See Findings of Fact ¶ 60). 
37 

using the E-Stop Method would expose employees to potential injury from the unexpected 

energization of the cutting die (see Findings of Fact ¶¶ 39, 42, 53), the Secretary has not established 

that the LOTO standard applies when employees utilize the E-Stop Method, as is discussed next 

in greater detail.

11 

The LOTO standard’s “scope” provision, § 1910.147(a)(1)(i), provides that the standard

“covers the servicing and maintenance of machines and equipment in which the unexpected

energization or start up of the machines or equipment, or release of stored energy could cause 

injury to employees.” Thus, the LOTO standard “applies only where the Secretary shows that 

unexpected energizing, start up or release of stored energy could occur and cause injury.” Gen. 

Motors Corp., Delco Chassis Div. (GM-Delco), 17 BNA OSHC 1217, 1218 (No. 91- 2973, 1995) 

(consolidated), aff'd, 89 F.3d 313 (6th Cir. 1996). 

11The Secretary argues that the E-Stop Method “did not exist prior to the citation being 

issued,” but rather that AJM concocted it afterwards. (Sec’y Br. 31-33). This argument is rejected. 

The record is replete with testimony from witnesses called by both parties that in the years before 

OSHA commenced the underlying investigation, the E-Stop Method was widely known, 

understood, and commonly utilized to clear scrap paper from the scrap chute. (See Findings of 

Fact ¶ 50). 

The circumstantial evidence that the Secretary contends establishes that AJM concocted 

the E-Stop Method after the citation was issued was not preponderant. (Sec’y Br. 31-33). One 

item of circumstantial evidence is that during the investigation AJM management told the CO that 

employees were required to utilize LOTO procedures to clear scrap paper from the scrap chute 

area, and that they never mentioned the E-Stop Method to him. (Findings of Fact ¶ 76). Further, 

in an unverified interrogatory response made early in the litigation, AJM stated that the use of 

LOTO procedures was mandatory when clearing scrap paper from the scrap chute. (Ex. C-29 at 

8). Both of these circumstances support at least a reasonable suspicion that AJM fabricated the EStop Method post-citation. However, that reasonable suspicion was refuted decisively by the 

abundant and uncontroverted testimony from witnesses called by both parties that the E-Stop 

Method was well known and frequently utilized well before the commencement of the 

investigation. The circumstantial evidence cited by the Secretary suggests at the least that AJM 

was less than fully forthcoming with both (1) the CO before the citation was issued, and (2) with 

its attorneys in the preparation of the unverified interrogatory response. But that evidence does 

not establish that AJM concocted the E-Stop Method after the citation was issued. 
38 

The E-Stop Method does not itself constitute a protocol that would meet to the LOTO 

standard’s substantive requirements, and AJM does not argue that it does.

12 (T. 585). The 

Secretary argues that only LOTO procedures may be used to clear scrap paper from the scrap 

chute, and consequently AJM’s use of the E-Stop Method to do so violates the cited LOTO 

standard. 

The Secretary failed to establish that the LOTO standard applied to the use of the E-Stop 

Method because the evidence was insufficient to support the conclusion that the unexpected 

energization or startup or release of stored energy could occur and cause injury while clearing 

scrap paper by using the E-Stop Method. (See Findings of Fact ¶¶ 39, 42, 53). 

The Commission has rejected the Secretary’s implicit position that the LOTO standard 

“presumes that there always is a hazard of unexpected energization, etc., on every industrial 

machine and piece of equipment during servicing and maintenance.” GM-Delco, 17 BNA OSHC 

at 1220. Rather, the Commission has determined that the “terms of the standard clearly place the 

burden on the Secretary to show that there is such a hazard as to the cited machines and 

equipment.” Id. (emphasis in original). The Commission has decided that control circuit type 

devices in machines may operate in such a manner that eliminates the potential of injury from 

hazardous energy during certain servicing or maintenance activities, so that the LOTO standard 

does not apply in those circumstances. See GM-Delco, 17 BNA OSHC at 1220 (determining 

12 Use of the E-Stop Method does not involve locking out or tagging out anything on a 

PCM, but even if it did, it could not constitute a compliant LOTO procedure. The locking or 

tagging out of an “energy isolating device” is an essential component of a compliant LOTO 

procedure. The LOTO standard’s definition of “energy isolating device” expressly excludes 

“control circuit type devices,” providing that “[p]ush buttons, selector switches and other control 

circuit type devices are not energy isolating devices.” § 1910.147(b). The e-stops on the PCMs 

are “control circuit type” devices (see Findings of Fact, ¶¶ 38–39), and thus utilizing a procedure 

that relied on locking or tagging out the machine’s e-stops would not constitute a procedure that 

met the LOTO standard’s minimum requirements. 
39 

LOTO standard not applicable where employer relied on control circuit type devices, including 

electronically interlocked gates and e-stop buttons, to eliminate the potential for injury from 

hazardous energy); see also Alro Steel Corp., 25 BNA OSHC 1839, 1854 (No. 13-2115, 2015) 

(ALJ) (rejecting the argument that “relying on control circuitry allows the machine to remain 

energized and, therefore, subject to unexpected energization through accident or mechanical 

failure,” and determining LOTO standard was not applicable because control circuitry prevented

unexpected energization or start up or release of stored energy during a particular servicing 

activity). 

The Secretary points to testimony that from time to time employees improperly utilized the 

E-Stop Method by failing to stay within arm’s reach of the e-stop after having opened the scrap 

chute guard. (Sec’y Br. 33; e.g., T. 116-19, 331-32, 359-60). Such an improper utilization of the 

E-Stop Method could constitute a violation of the LOTO standard, because in such instances an 

employee could be exposed to hazardous energy and resultant injury while performing service or 

maintenance. However, the testimony regarding such instances of the mis-utilization of the EStop Method lacked specificity as to the time of occurrence or the precise context of such 

occurrences. That non-specific evidence is insufficient to establish the violations alleged by 

instances “a”, “b” or “c” involved the improper use of the E-Stop Method. 

The Secretary also points to anecdotal evidence of instances of e-stops malfunctioning. 

(Sec’y Br. 33-34). As set forth in the Findings of Fact (¶¶ 39, 42, 53), the preponderant evidence 

is that any failure in the e-stop circuit could result only in the machine shutting off and remaining

off. (E.g., T. 1949, 2055-56, 2414, 2470, 2481-82). The plant manager, Roger Finckbone, who 

has been involved in the maintenance and servicing of the PCMs since 1997 (T. 2448), testified

that the e-stops on the PCMs fail in the “off” position and that components of the machine cannot 
40 

move if an e-stop fails. This testimony was more authoritative that the vague anecdotal testimony 

of two former employees that engaging an e-stop (or activating the safety interlock upon opening 

the rear access doors) did not always cause the PCMs to shut down immediately and completely. 

(T. 218-19, 229-30, 333-34). Cf. Conagra Flour Milling Co., 16 BNA OSHC 1137, 1141 (No.

88-1250, 1993) (“Generally speaking, where employees testify from their own knowledge and 

experience on matters that pertain to their specific work activities, their testimony should be given 

greater weight than that of witnesses who do not have first-hand experience with the operation in 

question”).

AJM’s written LOTO procedures do not contain any description of the E-Stop Method. 

(See Ex. C-3; R-15 at 5-7, 13). The Secretary argues that the absence of any such description in 

AJM’s written LOTO procedures violates the provisions of the LOTO standard that prescribe the 

content of written LOTO procedures. (Sec’y Br. 32). See §§ 1910.147(c)(4)(ii)(A)—(D); 

Angelica Textile Servs., Inc., 27 BNA OSHC 1246, 1250 n. 6 (No. 08-1774, 2018) (observing that 

the “LOTO standard mandates that procedures be documented” except in certain narrow 

circumstances), vacated on other grounds, 803 F. App'x 542 (2d Cir. 2020) (unpublished). It is 

not necessary to adjudicate whether AJM’s written LOTO procedures were deficient because the

Secretary’s complaint does not allege any deficiencies in the way AJM documented its LOTO 

procedures. Moreover, the parties did not consent to trying the unpleaded issue of the adequacy 

of AJM’s written LOTO procedures. See McWilliams Forge Co., Inc., 11 BNA OSHC 2128, 

2129-30 (No. 80-5868, 1984) (“Trial by consent [under Fed. R. Civ. P. 15(b)] may be found only 

when the parties knew, that is, squarely recognized, that they were trying an unpleaded issue.”) 

This decision and order does not adjudicate whether the LOTO standard required that AJM’s 

written LOTO procedures describe either (1) the E-Stop Method, or (2) the conditions in which 
41 

employees were authorized to utilize the E-Stop Method to clear scrap paper from the scrap chute. 

Cf. S. Hens, Inc., No. 17-0029, 2018 WL 2017592 at *6 (O.S.H.R.C.A.L.J., Mar. 20, 2018) 

(concluding that the LOTO standard’s provisions that prescribe the content of written LOTO 

procedures “is concerned with the ‘how’ of the lockout procedures, not the ‘when’”), aff’d 930 

F.3d 667, 676 (5th Cir. 2019). 

AJM argues that the E-Stop Method constitutes an alternative measure to LOTO 

procedures so that it meets the “minor servicing exception” to the application of the LOTO 

standard. See NOTE to § 1910.147(a)(2)(ii) (containing “minor servicing” exception to 

subparagraph (a)(2)(ii)). This argument is rejected. AJM did not plead the minor servicing 

exception as a matter in avoidance to the allegations of the complaint. Westvaco Corp., 16 BNA 

OSHC 1374, 1377-78 (No. 90-1341, 1993) (noting that employer bears burden of proving that the 

LOTO standard’s minor servicing exception applies); Fed. R. Civ. P. 8(c)(1) (providing that “any 

avoidance or affirmative defense” must be affirmatively stated in responsive pleading). Also, the 

parties did not squarely recognize that they were trying that unpleaded issue. McWilliams Forge 

Co., Inc., 11 BNA OSHC at 2129-30 (trial of unpleaded issues by consent). 

5. Collateral Issue as to Application of LOTO Standard – 

Effectiveness of the Scrap Chute Door as a Machine Guard

The Secretary asserts, in connection with various arguments, that the hinged scrap chute 

guard located near the PCM’s control panel was not an effective machine guard because adjusters 

could bypass it quickly and with ease to clear scrap paper from the scrap chute of an operating 

PCM. The Secretary’s argument is based in part on the evidence that (1) the manufacturer of the 

PCMs (Peerless) designed and manufactured the PCMs with a barrier or guard for the scrap chute

with an interlock circuit that caused a running PCM to shut down when opened, (2) the PCMs at 

the Facility had been modified in a manner that had eliminated or bypassed this interlock feature, 
42 

so that opening the scrap chute guard did not cause the PCMs to shut down, (3) AJM designed, 

fabricated, and installed the scrap chute guards on the PCMs at the Facility (T. 1324), (4) Peerless

informed AJM that for safety reasons it disapproved of the absence of interlock functionality on 

the guards, and (5) after Peerless expressed those concerns, AJM did not re-configure the guards 

to re-establish safety interlock functionality.

13

The Secretary is substantially justified in his criticism of the efficacy of the hinged scrap 

chute guard in preventing employees from placing body parts in the dangerous scrap chute area of

operating PCMs. The absence of an interlock feature on the AJM-designed scrap chute guard 

would have reasonably supported an allegation that the scrap chute guard violated the machine 

guarding standard found at 29 C.F.R. § 1910.212(a)(1) because employees could easily bypass the 

guard and access the dangerous scrap chute area of an operating PCM. See HBD/Thermoid, Inc., 

26 BNA OSHC 2068, 2080 (No. 16-1070, 2017) (ALJ) (deciding that a hinged guard that was

easily bypassed by employees was inadequate and failed to meet the machine guarding 

requirements of § 1910.212(a)(1)), citing Pass & Seymour, Inc., 7 BNA OSHC 1961, 1964 n. 5 

(No. 76-4520, 1979) (stating “such a guarding method is only acceptable if installed in such a way 

that it cannot be easily circumvented by employees”); see also Akron Brick and Block Co., 3 BNA 

OSHC 1876, 1878 (No. 4859, 1976) (stating that “the method of machine guarding should not be 

13 AJM was not the original owner of the PCMs at the Facility but rather acquired them 

from entities other than Peerless. (T. 1371-73). The record does not reflect whether AJM or some 

prior owner had modified the PCMs used at the Facility to bypass or eliminate the original interlock 

feature. However, the evidence did establish that AJM fabricated and installed the non-interlocked 

hinged scrap chute guard on each PCM, and that AJM could have configured the scrap chute 

guards with a safety interlock feature. (T. 1324-26, 1364, 1371-73). 

After the citation was issued, AJM modified the scrap chute guard by causing it to be 

secured in its closed position by some type of fastener such as a bolt or screw. (T. 589). After that 

modification, it became necessary for employees to use a hand tool to remove the bolt or screw to 

open the scrap chute guard. (T. 2309). 
43 

predominantly dependent upon human behavior,” and that workers take to the job “any tendency 

to neglect any specified course of conduct”). 

But the Secretary did not cite AJM for violating the machine guarding standard (subpt. O 

of 29 C.F.R. pt. 1910). Notwithstanding that the LOTO standard was “designed to seamlessly 

dovetail with the machine guarding protections that apply during normal production operations 

under” subpart O, Dayton Tire, 23 BNA OSHC 1247, 1253 (No. 94-1374, 2010), aff'd in pertinent 

part, 671 F.3d 1249 (D.C. Cir. 2012), the matter of whether the hinged scrap chute guard met the 

requirements of the machine guarding standard simply was not a matter put in issue by the 

pleadings, nor did the parties squarely recognize that they were trying that unpleaded issue. 

McWilliams Forge Co., Inc., 11 BNA OSHC at 2129-30 (trial of unpleaded issues by consent). 

6. Proof of Non-compliance for Instances “a”, “b” and “c” -- Did Adjusters Bypass 

the Scrap Chute Guard to Clear Scrap When the PCMs Were Running? 

The CO’s approximately 30-minute walkaround on the floor on August 25, 2016 spawned 

the LOTO violations that were ultimately alleged in instances “a”, “b” and “c”.14 The CO testified 

that during the walkaround he observed three adjusters on three different PCMs bypassing the 

scrap chute guard of operating PCMs to reach into the running machine and manually remove 

scrap paper. These employees were later identified to be James Beals on PCM #27 (instance “a”), 

Brandon Mendieta on PCM #13 (instance “b”), and Andrew Thompson on PCM #30 (instance 

“c”). 

The CO’s testimony, if accepted at face value, would prove the violative conduct alleged 

in connection with each these three instances. AJM presented considerable countervailing 

14 Even though the Secretary failed to establish that the cited LOTO standard applied to 

instance “b” (involving PCM #13 and adjuster Brandon Mendieta), the issue of whether the 

Secretary proved non-compliance with the cited standard as to instance “b” is adjudicated herein 

as well and is intended to provide an additional ground for vacating instance “b”. 
44 

evidence challenging the credibility and reliability of both the CO’s testimony and the evidence 

that is corroborative of the CO’s testimony. The undersigned, as the finder of fact, must scrutinize

the whole of the evidence in determining whether the evidence that would prove the violative 

conduct was preponderant. For that reason, the following discussion goes into considerable detail 

in describing evidence bearing on whether the Secretary carried his burden to establish that there 

was noncompliance with the cited standard in the manners the Secretary alleged and sought to 

prove for instances “a”, “b” and “c”. See Lake County Sewer Co., 22 BNA OSHC 1522, 1524 

(No. 07-1786, 2009) (requiring Commission judge to “address all conflicting testimony, as well 

as any other record evidence relevant” to a material issue); Agra Erectors, Inc., 19 BNA OSHC 

1063, 1066 (No. 98-0866, 2000) (directing Commission judge to “give reasons for crediting the 

testimony of one witness over that of another that are accompanied by summaries of pertinent 

testimony and reasons for crediting the testimony”).

The Secretary’s theory of these three violations relates to a common servicing activity—

removing scrap paper that has become lodged in the scrap chute. The Secretary argues that it was 

common practice among adjusters at the Facility to use neither the LOTO Method nor the E-Stop 

Method for removing scrap paper from the scrap chute area, but rather to insert their hand or arm 

in the scrap chute of running PCMs to clear scrap paper manually. This is what the CO testified 

he saw three employees do on three different PCMs during his approximate 30-minute walkaround 

on August 25, 2016. 

AJM argues that the activity that the CO described the three employees doing was 

prohibited and that employees complied with, and AJM effectively enforced, the work rule that all

guards be closed when the PCM is operating. AJM contends the evidence that the three identified 

employees had reached into operating PCMs in the manner that the CO described was not 
45 

sufficiently reliable or credible to prove by a preponderance that any of those employees engaged 

in the activity alleged. 

a. Proof of Non-Compliance -- Instance “a” 

(PCM #27 Operated by James Beals)

The Secretary failed to meet his burden to establish that AJM violated § 1910.147(c)(4)(i) 

in the manner alleged in instance “a” of the LOTO citation. 

i. Testimony of CO and James Beals

Instance “a” pertains to PCM #27 that James Beals was operating on August 25, 2016. The 

CO testified that during his 30-minute walkaround on the production floor, he observed Beals 

engage in the following sequence of movements that occurred over a period of “one to three 

seconds.” (T. 817-19). The CO testified that PCM #27 was in operation when he observed Beals 

open the scrap chute guard, reach into the scrap chute area up to his mid-forearm, remove scrap 

paper from the scrap chute area with his hand, and then close the guard. (T. 817-19). It is 

undisputed that the CO did not comment or remark to either Finckbone or Cutler about what he

believed he had seen Beals do. (T. 825 & 1068 (CO testimony), T. 1590 (Cutler testimony), T. 

2019 (Finckbone testimony)). Rather, after the walkaround the CO requested to speak privately

with Beals, and AJM arranged for the CO to do so. The CO’s testimony about what Beals told 

him in that private interview is murky. The CO did not expressly state that Beals had said to the 

CO privately that he had reached into the operating machine earlier that day in the manner that the 

CO testified that he had seen, although the CO unambiguously testified that Beals said that he 

sometimes reached into operating PCMs to clear scrap paper. (T. 829-30).

Beals testified that he generally did not use the E-Stop Method to clear paper from the 

scrap chute area unless “the paper jam was to the point where it was actually overflowing out of 

the scrap chute itself.” (T. 198). He testified that instead of using the E-Stop Method, he usually 
46 

opened the scrap chute guard while the PCM was in operation to clear out scrap paper that had 

gotten caught up in the scrap chute. (T. 194-199). Beals testified that he did this between two and 

twenty times a day for each PCM that he would be responsible for operating at any given time. 

The frequency with which the need arose to do this was affected by such factors as the ambient 

humidity and the moisture content of the paper stock. (T. 194-199). Beals testified that when 

removing scrap paper from the scrap chute in this manner, he would sometimes insert only his 

hand into the scrap chute area, while at other times he would reach in up to his elbow, and that the 

length of time to complete that process was “a couple of seconds,” which was all the time needed 

to “[j]ust open the door, grab it, and keep it moving.” (T. 199). 

Beals testified that he learned to clear scrap paper from the scrap chute of operating PCMs

in this manner from his trainers and from observing other adjusters. (T. 201). He testified that the 

practice “just came with the job” (T. 202) and was “just the way we worked” (T.200). He testified 

that he had once observed his floor supervisor (Don Gaddy) do this on a PCM that Beals was 

operating after Gaddy had come to assist him. (T. 202). 

Beals also described times when scrap paper would become snagged on the adjustable air 

nozzle situated just inside the scrap chute door (which is the source of the bursts of air that expel 

the scrap paper from the scrap chute). (T. 196-99; see also T. 84-85; Ex. C-12, photo depicting 

the green-colored air hose near the center of the photo). 

Beals acknowledged that AJM had a work rule that guards had to be in place when the 

PCMs were in operation, and he acknowledged further that over his tenure at AJM from April 

2015 to November 2016 he had been disciplined for violating that rule. The record reflects Beals 

being formally disciplined for violating that rule on three separate occasions, the last such time 

being about eleven months before his employment was terminated in November 2016 (for a non-
47 

safety related infraction). (T. 169, 258-260, 267, 274; Ex. R-26 at 21-29). Ex. R-26 at 2-3 

[8/28/2015], 9-10 [10/15/2015], 12-13 [1/7/2016], 21-29 [termination 11/29/2016]). None of 

those disciplinary events involved Beals clearing scrap paper from the scrap chute of an operating 

machine. Beals testified that he had never been disciplined for bypassing the scrap chute guard 

and reaching into an operating machine in the manner that he described having done routinely 

during his work as an adjuster. (T. 294). 

Mr. Beals was not asked, and he did not testify about, whether he had bypassed the scrap 

chute guard to remove scrap paper during the CO’s walkaround on August 25, 2016 in the manner 

that the CO testified he had observed Beals doing. 

ii. Testimony of Former AJM Employees Consistent with Beals’ Testimony 

Three other former AJM employees called by the Secretary were corroborative of Beals’ 

testimony that the practice of clearing scrap paper from the scrap chute of operating PCMs was a 

common practice of many adjusters. Those former employees were Dallas Benjamin, David 

Griner, and an employee with initials D.F. 

(A). Dallas Benjamin

Dallas Benjamin’s testimony was corroborative of Beals’ testimony with respect to the 

practice among adjusters to bypass the scrap chute guard when the PCMs were operating. 

Benjamin was employed by AJM for only about three weeks. He started in August 2016

as an “adjuster-trainee” and was terminated soon thereafter for poor attendance. (T. 72, 130-31, 

134, 169). Benjamin testified he had been assigned two PCMs to operate (T. 137), even though 

his training records indicate he remained an “adjuster-trainee” throughout his brief tenure and that 

he did not complete new adjuster training. (Ex. R-33). Like Beals, Benjamin described 

circumstances when scrap paper became snagged or “caught” in the scrap chute. (T. 87-88). 

Benjamin testified that he would sometimes open the scrap chute guard and clear the scrap paper 
48 

manually while the machine was running by reaching in the scrap chute up to his forearm in a 

movement that took only “two seconds.” (T. 88-92, 96). Benjamin testified further that he would 

manually adjust the air nozzle that is accessible through the scrap chute guard about ten times daily 

for each machine he was assigned to operate, and that most of the time the PCMs were running 

when he made this adjustment. (T. 94-96). He testified further that he cleared scrap paper from 

the scrap chute of a single PCM between 30- and 60-times day, and about half those times the 

machine would be running. For the other half of those times, he would activate an e-stop when a 

paper jam in the scrap chute “got out of hand,” or the PCM would stop automatically (apparently 

when the sensor between the forming die and the stacker detected that finished product was not 

exiting the forming die). (T. 89-92). Benjamin testified that the process of reaching into the scrap 

chute of an operating machine to clear scrap paper took a “few seconds,” in contrast to using the

E-Stop Method, which took “about a few minutes.” (T. 121-22). Benjamin did not know whether 

a supervisor had ever observed him putting his hand or arm into an operating PCM. (T. 152). 

Benjamin testified that his trainer, whose name he did not recall, showed him how to clear 

scrap paper from the scrap chute and adjust the air nozzle when the machine was operating. (T. 

75, 92-93, 96). He testified that he observed other adjusters clearing scrap paper and adjusting the 

air nozzle of operating PCMs every day that he had worked at AJM. (T. 93, 96-98). 

(B). David Griner 

David Griner’s testimony was corroborative of Beals’ account of the circumstances in 

which adjusters bypassed the scrap chute guard of an operating PCM to remove scrap paper and 

to adjust the air nozzle. 
49 

Griner was employed at AJM as an adjuster from September 2014 to January 2017.15 (T. 

302-04; Ex. R-27 at 1; Ex. R-31). Griner described scrap paper accumulating in the PCM’s scrap 

chute when the air nozzle was “not blowing correctly” and when the cutting die failed to make a 

complete cut of the paper stock. (T. 306-07). He testified that it was “not that often” that he would 

use the E-Stop Method to clear scrap paper from the scrap chute. (T. 316). 

Griner testified that a “couple of times a day” he would clear scrap paper from the scrap 

chute while the machine was running if the scrap paper “was right there where I could get to it.” 

(T. 314). He testified that he did this by manipulating the controls to stop paper from feeding into 

the cutting die area, but allowing the cutting die to continue to reciprocate and bypassing the scrap 

chute guard to manually clear the scrap paper from the scrap chute. (T. 314-19). He testified that 

he learned to do this by observing the plant manager (Roger Finckbone), the assistant plant 

manager (Marc Saylor), and his floor supervisor do the same thing, although Griner did not speak 

to whether he had been expressly trained to do this. (T. 319-20, 334). When asked whether he 

had ever been told not to reach into an operating machine, he responded “Not really,” with no 

further explication. (T. 334). 

Griner testified further that when he adjusted the air nozzle he would usually do so while 

the PCM was running because that way he was able to determine the manner in which the air was 

flowing as he adjusted the nozzle, which was not possible when the PCM was shut off, though he 

did not speak to whether he had been trained to do this. (T. 325-27). Adjusting the air nozzle with 

the machine running took only “a couple of seconds,” while shutting the machine down to 

15 Griner testified that he quit AJM upon walking out of a meeting in which managers were 

giving him a “work improvement notice” for having left PCMs unattended. (T. 340-43). AJM’s 

view of the circumstances of Griner’s departure was that AJM terminated his employment after he 

walked out of that meeting. (T. 1656; Ex. R-27 at 1).
50 

complete the same task would take about five minutes. (T. 326-27). Griner testified that he had 

observed a floor supervisor (Egorov) and other adjusters adjust the air nozzle when the PCMs were 

running. (T. 327). 

(C). Adjuster “D.F.” 

The testimony of an employee with the initials D.F. corroborated Beals’ account of the 

circumstances in which some adjusters cleared scrap paper from scrap chutes and adjusted air 

nozzles of operating PCMs.16

D.F. was employed as an adjuster at the Facility from March 2015 to September 2016, 

when he chose not to return to work after having taken a medical leave of absence. (T. 640-42, 

689, 1676-77; Ex. R-39). D.F. testified that throughout his employment he inserted his hand into 

the scrap chute area of operating PCMs to clear scrap paper and to adjust the air nozzle, and that 

he did this as many as 20 to 30 times a day in a series of movements that were completed in “[j]ust 

seconds, like one or two seconds.” (T. 662-63, 667, 672). He testified his trainer (an experienced 

adjuster who had the same initials -- D.F.) “showed me that way,” but also cautioned him that “you 

wasn’t supposed to” clear the paper that way “but, you know, that’s the way you got to get this 

machine running,” and so “[t]hat’s how we do it.” (T. 693, 695). D.F. testified he had observed 

other adjusters clear scrap paper from the scrap chutes of operating PCMs every day (T. 663, 670-

71, 695-96), and that he had observed floor supervisors (Egorov and Mays) do this as well. (T. 

671-72). He testified that he would be “a bit concerned” about the proximity of his hand to the 

reciprocating cutting die when doing this, but that he did not believe he was putting himself at risk 

when doing so, explaining that “I’ll be cautious,” and “I know ... how to move.” (T. 694). 

16 D.F. is the nephew of the employee who suffered the amputation injury on May 8, 2016, 

(and who for privacy considerations is identified in this Decision by initials “W.F.”). (T. 640). 
51 

iii. Competing Testimony of Current AJM Employees

AJM presented testimony of current AJM employees who testified to substantial effect that 

(1) AJM’s work rule was that all PCM guards had to remain in place when the machines were 

operating, (2) they had not observed employees clear scrap paper by bypassing the scrap chute 

guard of operating PCMs in violation of that rule, and (3) it was not a common or an accepted 

practice for employees to do so. 

The plant manager, Roger Finckbone, who accompanied the CO throughout the CO’s 

walkaround on August 25, 2016 (T. 2510-11), testified that during the walkaround he did not see

Beals reach into a running PCM in the manner that the CO described. (T. 2516-19). However, 

Finckbone recalled that he had observed Beals holding open the scrap chute guard to PCM #27 

and peering into the scrap chute area while the machine was operating. (T. 2516-17). Finckbone 

recalled further that when Beals realized that Finckbone was observing him do this, Beals 

immediately closed the scrap chute guard. (T. 2516-19). Finckbone testified that he instructed 

someone to discipline Beals with a written warning for operating the PCM with a guard open, but 

that he later learned that his instructions had not been carried out. (T. 2529-30). Finckbone 

testified further that he had never seen an employee access the scrap chute through the scrap chute 

guard of an operating PCM machine at the Facility, though he recollected having seen that happen 

“long ago,” probably at another AJM plant where he had worked before the Facility opened in 

2009. (T. 2438-39, 2494-96). He testified that employees were permitted to access the scrap chute 

through the scrap chute guard by utilizing either the LOTO Method or the E-Stop Method, and 

that it is generally necessary to remove scrap paper from the scrap chute about “five or six times a 

day depending on the diligence of the adjuster.” (T. 2469, 2489). 

The Facility’s human resources manager, Robert Cutler, who along with Finckbone 

accompanied the CO during his 30-minute walkaround on August 25, 2016, similarly testified that 
52 

he did not observe Beals reach into a PCM during the walkaround (or at any other time for that 

matter). Cutler testified that employees are “trained to leave the guards in place and if the guards 

are in place” employees cannot stick their hands in the scrap chute near the reciprocating cutting 

die. (T. 450-51). 

The assistant plant manager since 2012, Marc Saylor, testified that he had never seen an 

adjuster reach into an operating PCM, and that employees were permitted to reach into PCMs only 

by utilizing either the E-Stop Method, LOTO procedures, or by engaging the interlock feature by 

opening the rear access doors. (T. 1870-73, 1881, 1885). 

An employee who was an assistant foreman from 2011 to 2017, Dmitry Egorov, testified 

to the same effect as Mr. Saylor. (T. 1946-1948, 1960, 1977). He did not recall having ever seen 

an adjuster reach into the scrap chute area of an operating machine in the manner that Beals 

described. (T. 1960-61).

Another employee who had been a floor supervisor at the Facility since it opened in 2009, 

Lena Mays, testified that there were no exceptions to the rule that the scrap chute guard had to be 

closed at all times while a PCM was running. (T. 2173, 2252-53). She testified further that in her 

years as a floor supervisor she had never see an employee reach into the scrap chute of a running 

machine. (T. 2252-53). She testified that employees were permitted to remove scrap paper by 

accessing the scrap chute guard by employing either the LOTO Method or the E-Stop Method. (T. 

2233-34, 2253-57). She testified further that employees were permitted to clear scrap paper from 

the rear of the PCMs by opening the interlocked rear access doors (and not having to utilize LOTO

procedures when doing so). (T. 2321). 

Another employee who had been a floor supervisor at the Facility since 2009, Bill 

Samosky, testified that employees were permitted to access the scrap chute through the scrap chute 
53 

guard only by utilizing either the LOTO Method or the E-Stop Method. (T. 2349-52). Employees 

were also permitted to open the interlocked rear access doors without using LOTO procedures, 

because the interlocks for the doors function like an e-stop. (2352-53). Samosky testified that he 

had never seen an employee reach into an operational machine, and that if he had seen such an act, 

he would have intervened and disciplined the employee. (T. 2361). 

Another employee who was a floor supervisor at the time he testified, Don Gaddy, testified 

that employees are permitted to access the scrap chute through the scrap chute guard to clear scrap 

paper by utilizing either the LOTO Method or the E-Stop Method, and that he had never seen an 

employee attempt to clear scrap paper by accessing the scrap chute through the scrap chute guard 

of a running PCM. (T. 2572-76, 2587). 

Another employee who was an assistant foreman at the time he testified, Brandon Mendieta 

(who had been working as an adjuster on August 25, 2016 when the CO made his walkaround), 

testified that adjusters are permitted to clear scrap paper from the scrap chute only by utilizing 

either the LOTO Method or the E-Stop Method, and that generally adjusters had to do this one or 

two times a day. (T. 2046-52, 2056-58). 

iv. CO’s Private Interviews of AJM Employees

The CO’s account of his private conversation with Beals on August 25, 2016 is described 

above. His accounts of his private conversations with Mendieta and Thompson that same day are 

discussed in connection with the discussion ahead on instances “b” and “c”. In addition to the 

interviews of those three adjusters, the CO privately interviewed Lena Mays three weeks later, on 

September 14, 2016. (T. 1117). Mays has been employed at the Facility as a floor supervisor 

since the plant opened in 2009. (T. 2171, 2176). The CO testified that he asked Mays about 

adjusters reaching into operating machines to clear scrap paper, and that Mays responded by saying 

that she had “observed employees stick their hand inside the machine to try to remove scrap” as 
54 

recently as the week before, and in that particular instance she had orally reprimanded that

employee for having done so. (T. 1130). The CO testified further that Mays told him she thought 

employees reached into operating machines because they get “used to the machine” and “feel like 

they are faster than the machine.” (T. 1130-31). Mays testified at the hearing and expressly denied

having ever seen employees reach into an operating machines (T. 2253, 2321), but she was never 

questioned to confirm or deny having said to the CO privately what the CO described in his 

testimony. 

The CO’s description of precisely what the three adjusters and Ms. Mays told him in private 

interviews is of uncertain reliability. Of the employees who testified at the hearing and who were 

also interviewed privately by the CO with respect to instances “a”, “b” and “c” (Beals, Mendieta, 

Mays), only Mendieta was questioned at the hearing about whether he had said to the CO what the 

CO described in his testimony. As described below, Mendieta’s testimony suggests that the CO 

had misunderstood him. Neither Beals nor Mays were provided the opportunity either to confirm

or deny the CO’s account of his private interviews, or to provide any context for what they had 

said to the CO privately. 

In those private interviews, the CO questioned employees about complex activities on 

complex machinery. Such circumstances sometimes heighten the possibility of 

miscommunication. Another significant factor that bears on whether the CO understood what the 

employees were attempting to say to him, is that AJM managers caused the CO to reasonably, but 

erroneously, understand that AJM required adjusters to utilize LOTO procedures to clear paper 

jams from the scrap chute. But in truth, adjusters were not limited to using LOTO procedures. 

Rather, they were permitted also to utilize the E-Stop Method. While it may be that AJM

management did not intentionally mislead the CO, the CO’s reasonable belief that AJM required 
55 

adjusters to use LOTO procedures to remove scrap paper from the scrap chute may have resulted 

in the CO misunderstanding or misinterpreting what employees were attempting to communicate 

to him in the private interviews. 

In addition, the investigative file that the CO compiled contains a number of substantial 

errors that AJM highlights in its closing briefs in its challenge to the reliability of the CO’s 

testimony. (Resp’t Br. 60-65). While perfection in an investigative file and in a CO’s recollection 

of past events is not required, some of the errors highlighted raise legitimate concerns regarding 

the CO’s attention to certain detail in the conduct of the investigation and the accuracy of some of 

his recollections. 

v. Violative Condition for Instance “a” Not Proven

A preponderance of the evidence establishes that Beals, and at least some other adjusters, 

had a personal practice of clearing scrap paper from the scrap chute of an operating PCM in the 

manner that is alleged in instance “a”. (Findings of Fact ¶ 54). But the evidence is insufficient to 

establish by a preponderance that the CO actually observed Beals do this during his walkaround 

on August 25, 2016, or that Beals told the CO that he had done so during in the CO’s private 

interview with Beals later that day. Finckbone’s testimony that during the walkaround he observed 

Beals violating the AJM policy of operating the PCM with a guard open, but did not observe him 

reach in the machine, is somewhat controverting of the CO’s testimony, and raises the inference 

that the CO misperceived what he thought he had seen Beals doing. It is notable also that the CO 

made no comment to Finckbone or Cutler that he had observed Beals reaching into the PCM in 

the manner that the CO testified. (T. 1068, 1590, 2519). 

While there is substantial evidence that Beals engaged in the violative conduct during the 

CO’s walkaround on August 25, 2016 as alleged in instance “a”, on the whole of the record the 

evidence is closely balanced and not preponderant. See Stanley Roofing Co., Inc., 21 BNA OSHC
56 

1462, 1464 (No. 03-0997, 2006) (concluding that Secretary did not meet her burden of proof on a 

matter where the evidence was “essentially in equipoise”); Schaffer v. Weast, 546 U.S. 49, 56 

(2005) (observing that the “burden of persuasion” answers “which party loses if the evidence is 

closely balanced”). The violative condition alleged in connection with instance “a” is not proven.

b. Proof of Non-Compliance -- Instance “b” 

(PCM #13 Operated by Brendan Mendieta)

Brandon Mendieta testified that he did not reach into an operating machine on August 25, 

2016, directly controverting the CO’s testimony that he had observed Mendieta do so twice. But 

Mendieta admitted that on that day he had removed the forming die guard (which is adjacent to 

the scrap chute guard) on a PCM that was not running (because he had engaged an e-stop), and 

that he had left the PCM unattended with the forming die guard off, in violation of a work rule. 

(T. 2124-28; Ex. C-4A). Mendieta testified that the plant manager (Finckbone) observed this and 

called him over to correct him about leaving the guard off the non-operating machine, and that he 

then replaced the guard. (T. 2124-28). Finckbone corroborated Mendieta’s account, testifying 

that he had observed that Mendieta had left a guard off PCM #13 in violation of a work rule, even 

though the PCM was not operating at the time. (T. 2512-15). 

The CO testified that, after he saw Mendieta reach into the PCM the second time, he “made 

a little reference” to Finckbone and Cutler” about “what [Mendieta] did,” and that one of them 

then approached Mendieta and spoke with him privately. (T. 833-34). In contrast, Finckbone and 

Cutler both testified that the CO did not make any mention to them during the walkaround that he 

had seen Mendieta reach into the scrap chute of an operating PCM. (T. 1578, 2513). Both 

Finckbone and Cutler testified that during the walkaround, they did not observe Mendieta reach 

into the scrap chute area of PCM # 13 in the manner that the CO testified he had seen. (T. 1578, 

2513). 
57 

The CO testified that when he interviewed Mendieta on August 25, 2016 after having seen 

him reach into an operating PCM twice, that “Mendieta informed me that he knew it wasn't 

something he was supposed to do as far as walking away from the machine if the scrap door was 

open,” and “also ... from what I recall, he ... stated to me that he knew he wasn't supposed to stick 

his hand in that -- in the scrap chute area, but he had to remove the excess scrap paper.” (T. 835). 

Mendieta did not expressly deny saying to the CO that he had reached into an operating machine 

that day, but he seemed to suggest in his testimony that he had simply told the CO that his infraction 

had been to leave a guard off a non-operating PCM. (T. 2127-28). 

It is impossible to square the CO’s testimony that he saw Mendieta reach into the PCM 

while it was operating, with the testimony of Finckbone and Mendieta that the PCM was not even 

operating at the time. The respective demeanors of these witnesses while testifying provide no 

basis for crediting one over the other. The evidence respecting the conduct of Mendieta that forms 

the basis of proving non-compliance for instance “b” is closely balanced and is in equipoise. See 

Stanley Roofing Co., Inc., 21 BNA OSHC at 1464; Schaffer v. Weast, 546 U.S. at 56. The evidence 

is insufficient to meet the Secretary’s burden to prove by a preponderance of the evidence the 

violative conduct alleged for instance “b”. 

c. Proof of Non-Compliance -- Instance “c”

(PCM #30 Operated by Andrew Thompson)

Andrew Thompson was operating PCM #30 on August 25, 2016, when he was still an 

“adjuster-trainee.” (T. 2520; Ex. R-41 at 59-65). Finckbone testified that during the CO’s 

walkaround that day, he did not observe Thompson reaching into the scrap chute area of an 

operating PCM. (T. 2520). The CO did not make any remark to Finckbone that he had observed 

Thompson reaching into the machine in the manner that the CO testified. (T. 2520). 
58 

Cutler testified that during the walkaround with the CO on August 25, 2016, he observed 

Thompson handling a roll of paper on the non-operator side of PCM #30, about 25 or 30 feet away 

from the scrap chute guard. Cutler testified he noticed that Thompson had left the forming die

guard off the machine in violation of a work rule, so he left the CO’s side and approached 

Thompson to correct Thompson on the spot for leaving the guard off the machine. Cutler testified 

that he did not see Thompson reach into the open scrap chute guard of PCM #30. Cutler testified 

further that the CO did not make any mention to him that the CO had seen Thompson reach into 

the scrap chute area of a running PCM to remove scrap paper, as the CO testified he had seen 

Thompson do. (T. 1583-89, 1727-28).

Thompson remained employed by AJM throughout the nearly five months that it took to 

complete the hearing (T. 2286), but neither party identified him as a person that the party might 

call to testify in their respective cases in chief, and neither party did. (See Joint Prehearing 

Statement, filed 10/3/2017). There is nothing in the record suggesting that Thompson was not 

available to testify. The record is silent regarding the parties’ respective reasons for not attempting 

to call as a witness an individual whom the Secretary had identified as the employee who had 

engaged in the alleged violative conduct described in instance “c”. 

The CO testified about what he recalled Thompson telling him when the CO interviewed 

him privately on August 25, 2016. The CO testified that after his walkaround (during which he 

testified that he had seen Thompson bypass the scrap chute guard of an operating PCM to remove 

scrap paper), Thompson told him during a private interview that he had reached into the scrap 

chute of an operating machine to remove paper, and that “[h]e knew he wasn’t supposed to..., but 

he was only trying to remove excess scrap paper from the machine.” (T. 839-41). According to 

the CO, Thompson said that he had done so because “he had three other machines he was handling, 
59 

and it was overwhelming, so he was trying to be as fast as possible.” (T. 1127). After having his 

recollection refreshed with the notes that he took during his interview with Thompson, the CO 

testified that Thompson told him that scrap chutes get jammed with scrap paper “several times a 

day” and that Thompson said that he reaches into an operating PCM to clear the paper from the 

scrap chutes about 40% of those times, which amounts to “several times a day.” (T. 842-43). 

CO’s testimony about what he saw Thompson do and what Thompson said to him privately 

simply cannot be squared or reconciled with the testimony of Finckbone and Cutler that Thompson 

was not even in the vicinity of the scrap chute guard at the time. There is as much reason to doubt 

the reliability of the CO’s testimony as there is reason to doubt the credibility of the AJM witnesses

on this issue. It is possible that if Thompson had been presented to testify, that the balance of the 

evidence would have tipped one way or the other. But the evidence of record as to the conduct 

alleged for instance “c” is closely balanced and is in equipoise as well. Stanley Roofing Co., Inc., 

21 BNA OSHC at 1464; Schaffer v. Weast, 546 U.S. at 56. The Secretary has not met his burden 

of proof to establish the alleged violative conduct as to instance “c”. 

d. Proof of Non-Compliance & Employee Access -- Instance “d” 

(PCM #16 Operated by W.F.)

As discussed above, the Secretary established that the cited LOTO standard applied to 

instance “d” which pertains to W.F.’s attempt to clear a paper jam located in the cutting die after 

he had raised the scrap chute to its upright position. For AJM to have complied with the cited 

standard would have involved AJM developing and directing the utilization of LOTO procedures 

that would protect employees from the release of gravitational energy in the raised scrap chute

during service or maintenance activities. Cf. 54 Fed. Reg. at 36647 (explaining that one of “the 

most effective method[s] to prevent employee injury caused by the unanticipated movement of a 

component of a machine” is to “utilize a restraining device to prevent movement,” such as “by 
60 

blocking material or components”); § 1910.147(b) (defining the term “energy isolating device” to 

include “a block; and any similar device used to block or isolate energy”). AJM had no such 

LOTO procedures, and W.F. did not neutralize the gravitational energy in the raised scrap chute 

that amputated his finger, and thus AJM was not in compliance with the cited standard as to 

instance “d”. W.F. was exposed to the hazardous energy of the raised scrap chute when he reached 

inside the PCM from the PCM’s operator’s side through the open scrap chute guard, and also while 

he reached inside the machine from the rear of the machine through the opened rear access doors. 

The amputation injury itself establishes the “employee access” element of the Secretary’s burden 

of proof. S&G Packaging Co., 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (employee’s 

injury resulting from the violative condition established employee access element).17

Only the “employer knowledge” element remains for the Secretary to meet his burden of 

proof as to instance “d”. 

7. Employer Knowledge – Instance “d”

(PCM #16 Operated by W.F.)

To establish the employer “knowledge” element of his burden of proof, “the Secretary must 

prove that the employer knew or, with the exercise of reasonable diligence, should have known of 

the conditions constituting the violation.” Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC 2147, 

2155 (No. 08-1656, 2016). “The knowledge element is directed to the physical conditions that 

17 The Secretary argues also that AJM violated the LOTO standard by not requiring that 

W.F. utilize LOTO procedures after accessing the interior of the PCM through the interlocked rear 

access doors, on the ground that the interlocked rear access doors involve the use of control 

circuitry. (Sec’y Br. at 34-35). For essentially the same reasons described in connection with the 

discussion of the E-Stop Method, supra, the Secretary has not established that employees accessing 

the interior of the machine through the interlocked rear access doors are exposed to hazardous 

energy. The Secretary has thus not established that the LOTO standard applies when employees 

access the interior of the PCM through the opened rear access doors (except for when an employee 

also raises the scrap chute from its operating position). (See Findings of Fact ¶¶ 36–37). 
61 

constitute a violation, and the Secretary need not show that an employer understood or 

acknowledged that the physical conditions were actually hazardous.” Danis Shook Joint Venture 

XXV, 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001) (citation omitted), aff'd, 319 F.3d 805 (6th 

Cir. 2003); see also S. Hens, Inc. v. OSHRC, 930 F.3d 667, 676 (5th Cir. 2019) (“The showing 

required to establish knowledge is of the physical conditions constituting the violation, not of the 

specific OSHA regulation or of the probable consequences of the violation”). 

The physical condition that violated the LOTO standard as to instance “d” was the

hazardous gravitational energy present in the raised scrap chute that caused injury to W.F. as he 

was clearing jammed paper on PCM #16 on May 8, 2016. For the Secretary to establish the alleged 

violation, Secretary must establish that AJM knew or, with the exercise of reasonable diligence, 

should have known of that violative physical condition. Cent. Fla. Equip. Rentals, Inc., 25 BNA 

OSHC at 2155; Danis Shook Joint Venture XXV, 19 BNA OSHC at 1501. 

Only the Secretary has addressed the employer knowledge element of instance “d” in posthearing briefing, arguing that the evidence established that AJM had both actual and constructive 

knowledge of the violative condition. (Sec’y Br. 36-44). AJM, although making no direct contrary 

argument, addresses the constructive knowledge issue obliquely in its argument in support of its

affirmative defense of unforeseeable employee misconduct (UEM). (Resp’t Br. 54-56; Resp’t 

Reply Br. 21-25). Cf. Burford’s Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) 

(noting that the Commission has considered the “same factors in evaluating both an employer’s 

constructive knowledge and the merits of an employer’s unpreventable conduct affirmative 

defense”), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished); S. Hens, Inc., 930 F.3d at 678

(noting that “the UEM inquiry often overlaps considerably with the main violation inquiry”). 
62 

Notwithstanding the absence of a direct countervailing argument from AJM on the issue 

of whether AJM had knowledge of the violative physical condition alleged in instance “d”, that 

element of the Secretary’s burden of proof remains a material issue that must be addressed and 

adjudicated on its merits. See Commission Rule 90(a), 29 C.F.R. § 2200.90(a) (providing that a 

Commission judge’s decision must “include findings of fact, conclusions of law, and the reasons 

or bases for them, on all the material issues of fact, law, or discretion presented on the record”); 5 

U.S.C. § 557(c)(3)(a); Fed. R. Civ. P. 52(a)(1). It is apparent from the entirety of AJM’s argument 

that it vigorously contests, albeit indirectly in the context of its UEM argument, the Secretary’s 

assertion that AJM had constructive knowledge of the violative physical condition.18

18 Even though the Secretary has failed to carry his burden to prove that AJM had 

constructive knowledge of the violative physical condition, it is not a certainty that AJM would 

have established even a prima facie UEM defense, which is often simply a mirror image of what 

the Secretary must prove to establish constructive knowledge. 

The first element of the UEM defense requires the employer to show that it had “established 

work rules designed to prevent the violative conditions from occurring.” Manganas Painting Co., 

21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). The work rule on which AJM pins its UEM 

defense is the rule prohibiting adjusters from raising the scrap chute to clear paper jams. (Ex. R14 at 3-5, quoted in Findings of Fact ¶ 57). AJM implemented this work rule in the aftermath of 

an amputation injury that had occurred when an adjuster had raised the scrap chute while the PCM 

was running (and thus while the cutting die was reciprocating) and was injured by contact with the 

reciprocating cutting die. That employee was not injured from the hazardous gravitational injury 

that was present in the raised scrap chute. (See Findings of Fact ¶ 55). There is no evidence that 

the purpose of the rule was to prevent exposure to hazardous gravitational energy present in a 

raised scrap chute.

AJM does not assert that W.F.’s failure to utilize LOTO procedures to neutralize the 

gravitational energy in the raised scrap chute was a result of W.F.’s misconduct, and it could not 

reasonably make such an assertion because AJM had no such LOTO procedures. So it is at least 

questionable whether AJM’s UEM defense to instance “d” was viable, because the work rule AJM 

relies upon to establish the defense was not designed or intended “to prevent the violative 

condition” from occurring (the “violative condition” being the gravitational energy present in a 

raised scrap chute that could cause injury to an employee). Calpine Corp., 27 BNA OSHC 1014, 

1020 (No. 07-0645, 2018), aff’d, 774 F. App'x 879, 882 (5th Cir. 2019) (unpublished) (concluding 

that employer failed to establish first prong of UEM defense because the work rule involved was
63 

a. Actual Knowledge of the Violative Physical Condition Involved in Instance “d” 

AJM believed, albeit erroneously, that the LOTO standard was inapplicable to the 

gravitational energy present in a raised scrap chute, and consequently it had not developed LOTO 

procedures to protect employees from being injured by that hazardous energy. If AJM were to 

have had actual knowledge that W.F. had raised the scrap chute while clearing a paper jam, AJM 

would necessarily have had actual knowledge that he was not utilizing any prescribed LOTO 

procedure to neutralize the hazardous gravitational energy present in the raised scrap chute. But 

there is no evidence that AJM had actual knowledge that W.F. had raised the scrap chute while 

attempting to clear the paper jam, and thus AJM had no actual knowledge that the violative 

physical condition had materialized. (E.g., T. 524-25). 

The Secretary argues that AJM’s “modus operandi set forth in the trial record supports a 

finding that AJM had actual knowledge of workplace conditions,” but none of the Secretary’s 

arguments that purport to show actual knowledge of the violative condition involved in instance 

“d” support such a finding. (Sec’y Br. 37-40, 44). Rather, those arguments bear instead on whether 

AJM should be charged with having constructive knowledge of the violative physical condition. 

See Sec’y Br. 40, n. 9 (wherein the Secretary states that his arguments in support of “actual 

knowledge of the violative conditions also support a finding of constructive knowledge”). The 

"not equivalent to the cited standard"), citing Daniel Int'l Corp., 9 BNA OSHC 2027, 2031 (No. 

76-181, 1981), and Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1075 (No. 09-1072, 2013) 

(rejecting UEM defense where employer's work rule did not meet cited standard's requirements); 

S. Hens, Inc., 930 F.3d at 678 (determining a work rule to “keep hands off moving machinery” did 

not suffice to support UEM defense to a LOTO violation because the work rule did not 

“specifically match” the LOTO violation at issue); Valdak Corp. v. OSHRC, 73 F.3d 1466, 1469 

(8th Cir. 1996) (noting that to establish UEM defense employer must prove “that it had a work 

rule in place which implemented the standard”).
64 

Secretary’s arguments made under the rubric of having proved actual knowledge will be addressed 

next in resolution of the issue of constructive knowledge. 

b. Constructive Knowledge of the Violative Physical Condition Involved in Instance “d”

Where an employer lacks actual knowledge of a violative condition, the Secretary may 

prove that the employer had constructive knowledge by showing that the employer failed to 

exercise reasonable diligence to prevent or discover the violative condition. See Ragnar Benson, 

Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). “In assessing reasonable diligence, the 

Commission considers several factors, including an employer’s obligations to implement adequate 

work rules and training programs, adequately supervise employees, anticipate hazards, and take 

measures to prevent violations from occurring.” S.J. Louis Constr., 25 BNA OSHC 1892, 1894 

(No. 12-1045, 2016). The regular enforcement of disciplinary procedures also bears on whether 

an employer has exercised reasonable diligence. See Thomas Indus. Coatings, 23 BNA OSHC 

2082, 2088-89 (No. 06-1552, 2012). 

Determining whether an employer had constructive knowledge of a violative condition 

involves “a fact-specific, practical inquiry, looking to company practice, the details of specific 

incidents, knowledge of supervisors imputable to the company, and commonsense inferences 

about what a company and its supervisors should know and do.” S. Hens, Inc., 930 F.3d at 676. 

Whether an employer has exercised reasonable diligence is a question of fact that will “vary with 

the facts of each case.” Martin v. OSHRC (Milliken & Co.), 947 F.2d 1483, 1485 (11th Cir. 1991). 

The dispositive inquiry here is whether the Secretary proved that AJM failed to exercise 

reasonable diligence to prevent or discover the violative physical condition on May 8, 2016 of 

W.F. lifting the scrap chute while clearing a paper jam located in the cutting die. This is an 

extremely close question on this record, and there is substantial evidence that would support a 

finding either way. On balance, the evidence that AJM failed to exercise reasonable diligence in 
65 

preventing or discovering the violative physical condition was not preponderant, as described 

below. 

i. Adequacy of Work Rules and Training Programs

AJM implemented a categorical work rule in February 2015 prohibiting adjusters from 

raising the scrap chute to clear paper jams.19 The adjusters who were employed when the rule was 

implemented, twenty-seven altogether, were trained on this work rule in one-on-one meetings with 

a trainer, and each of the twenty-seven adjusters signed a training document reflecting having 

received the training. (T. 1888-91, 2603-06; Ex. R-14 at 3-5). (The training document that the 

adjusters signed is set forth verbatim in the Findings of Fact ¶ 57.) 

No adjuster who was trained on the rule expressed or demonstrated confusion about the 

rule’s import. (T. 2606, 2362-64). W.F., the employee who sustained the amputation injury when 

he violated the rule about fifteen months after it had been implemented, acknowledged in his 

testimony that he had been trained on the rule and that he understood it. (T. 2776-79). 

AJM’s work rule and the training on it were clear and direct, and if all adjusters followed 

the rule the violative physical condition (raising the scrap chute without neutralizing its resulting

gravitational energy) would never materialize when adjusters cleared paper jams. 

After the rule was implemented in February 2015, there is no evidence that AJM took any 

measures to ensure that newly hired employees were indoctrinated on the rule, either formally or 

19 The rule was directed only to adjusters. There is evidence that the rule did not apply to 

AJM’s approximately 10 to 15 maintenance mechanics. (T. 1435, 2423-24, 2477-78, 2498). But 

no evidence was presented of any circumstances in which maintenance mechanics could be injured 

during their maintenance activities by the gravitational energy that is present in a raised scrap 

chute. AJM’s compliance with the LOTO standard with respect to the service and maintenance 

activities of its maintenance mechanics is not a matter in issue.
66 

informally. (Ex. R-13 at 5; Ex. R-17; see D. Benjamin and A. Thompson training records from 

2016 at R-29, R-33, R-34, R-41). 

No training documentation in evidence that post-dates the rule’s implementation contains 

any reference or allusion to the rule, including the training documentation for subsequently hired 

adjuster-trainees. (See Exs. R-29, R-30, R-32, R-33, R-34; T. 1429-31, 1598-1612). According 

to the Facility’s human resources manager, Robert Cutler, the “on-the-floor” training component 

for adjuster-trainees takes three to six months to complete, and includes training on clearing paper 

jams, although Cutler was not familiar with the precise content of the “on-the-floor” training in 

clearing paper jams. (T. 1740-42, 1744-46, 1925-26). 

A floor supervisor, Dmitry Egorov, recalled the February 2015 training on the rule 

prohibiting the lifting of scrap chutes (T. 1963-65), and he mused that he “probably” had been 

trained “a couple of times” on the rule, although he could not “remember the last time.” (T. 1985-

86). Egorov personally had never delivered formal training on the rule. (T. 1986). Egorov was 

not questioned about whether he had ever informally communicated the rule to adjusters or 

adjuster-trainees during his day-to-day to supervisory activities. 

Another floor supervisor, Lena Mays, testified that she was not involved in the training 

provided to adjusters on the rule in February 2015, but she was aware of it from discussions with 

her manager. (T. 2313-14, 2329-30). She testified further that she was not involved in providing 

“on-the-floor” training to adjuster-trainees. (T. 2310-11; Ex. R-30). 

Another floor supervisor employed at the Facility since 2009, Bill Samosky, recalled the 

2015 implementation of the rule prohibiting adjusters from lifting the scrap chute to clear paper 

jams, and recalled no adjusters being confused or questioning the rule. (T. 2362-64). He was not 
67 

questioned about whether he was aware of any reinforcement training on the rule or whether he 

had any knowledge about adjuster-trainees being trained on the rule. 

Another floor supervisor, Don Gaddy, who had been one of the trainers who had delivered 

training on the rule to the adjusters in February 2015, testified that he was not aware of any 

subsequent reinforcement training having been provided on the rule. (T. 2699-2700). Like Lena 

Mays, Gaddy was likewise not involved in providing on-the-floor training to adjuster-trainees. (T.

2701-02). Gaddy was not asked whether he had knowledge of any subsequently hired adjustertrainees being informed of or being trained on the rule in their on-the-floor training. 

Jorge Gonzales has been an adjuster since 2014. He has been involved in providing onthe-floor training to about 25 adjuster-trainees. (T. 2402, 2419). Gonzales was not questioned 

about whether he ever informed or instructed an adjuster-trainee about the rule prohibiting 

adjusters from raising the scrap chute to clear paper jams, although he did testify about having

trained adjuster-trainees in LOTO procedures and in utilizing the E-Stop Method to clear paper 

jams. (T. 2419-20, 2428). He recalled the February 2015 training that implemented the rule, but 

he could not recall whether there had been any reinforcement training on the rule. (T. 2424). 

D.F. is the nephew of W.F., and he started working as an adjuster in March 2015, about a 

month after AJM implemented and trained on the rule. (T. 640; Ex. R-39). D.F. testified that he 

typically raised the scrap chute once a day in the course of cleaning the PCM’s rails, and that he 

learned to do this “[f]rom experience and ... my trainer ... showed me little tricks or whatever to 

do.” (T. 656-58; see video clip at Ex. C-25, depicting blanks sliding down rails). D.F. described 

his trainer showing him how to clear scrap paper from the scrap chute of an operating PCM by 

reaching in through the opened scrap chute guard but telling him at the same time the practice 

violated AJM policy. D.F. testified: “He didn’t teach me that way but he showed me the way, 
68 

you know, he told me you wasn’t supposed to but, you know, that’s the way you got to get this 

machine running. That’s how we do it.” (T. 695). D.F. did not directly say the adjuster who was 

training him showed him how to lift the scrap chute to clean the rails, though his testimony 

certainly is susceptible of that inference. (T. 658). D.F. was not asked whether his trainer or 

anyone informed him of the rule prohibiting the lifting of the scrap chute to clear paper jams, or 

whether he had any awareness of that work rule. D.F. was not asked whether he had ever raised 

the scrap chute to clear a paper jam. 

The work rule prohibiting adjusters from raising the scrap chute to clear paper jams was 

adequate. It was clear and direct, even though by its terms it did not prohibit adjusters from raising 

the scrap chute for work activities other than clearing paper jams, such as cleaning the rails as D.F. 

described he did on a daily basis. The original training on the rule in February 2015 was also 

adequate, with no adjusters expressing confusion about the rule or voicing concerns that the

compliance with the rule would hinder them in doing their jobs. (T. 2499, 2609).

The record reflects no formal training on the rule after its implementation and the initial 

training on it. There is no evidence that AJM formally incorporated the rule into its new adjuster 

training. The on-the-floor training that adjuster-trainees received as they shadowed experienced 

adjusters over a period of three to six months entailed training on 93 tasks specified on a checklist, 

but none of those 93 tasks referenced the rule prohibiting the lifting of the scrap chute to clear a 

paper jam. (Ex. R-41 at 59-65). Whether the experienced adjusters who were assigned to provide 

on-the-floor training to adjuster-trainees informed an adjuster-trainee of the rule would seem to 

have been wholly dependent upon whether the adjuster/trainer happened to think about it and to 

decide to communicate it to the adjuster-trainee. The evidence established that the on-the-floor 

training for adjuster-trainees sometimes included experienced adjusters showing adjuster-trainees 
69 

means and methods that violated AJM work rules. (E.g., T. 695). This aspect of on-the floor 

training that was provided to at least some adjuster-trainees unavoidably communicated to those 

new employees that the breach of some safety rules was commonplace at the Facility, even if such 

violations were not expressly endorsed by supervisory personnel. 

ii. Adequacy of Supervision

There is a clear divide in the testimony respecting the prevalence of the practice of lifting 

the scrap chute to clear paper jams. The former AJM adjusters presented by the Secretary indicated 

that even after AJM implemented the rule prohibiting adjusters from raising the scrap chute to 

clear paper jams, adjusters continued to do it and that supervisory personnel knew this and were 

even complicit in it. The testimony of current AJM employees and supervisors indicated the 

opposite. 

James Beals started working at AJM about two months after AJM had implemented the 

rule that adjusters not lift the scrap chute when clearing a paper jam (T. 169; Ex. R-32), but he was 

not asked whether he had been informed of or knew about the rule prohibiting raising the scrap 

chute to clear paper jams. He testified that while he had raised the scrap chute to clear a paper 

jam, he had done so only “rarely.” (T. 214). However, Beals testified that two or three times a 

week he would raise the scrap chute from its underside (apparently after having opened the 

interlocked rear access doors) in order to reach screws in the PCM’s rails that needed to be

tightened from time to time. (T. 213-14, 221-22). He testified that sometimes he would use a 

hand tool to block the scrap chute to prevent it from falling, and other times he would have 

someone else hold the scrap chute up to prevent it from falling. (T. 211-12, 222). 

David Griner worked as an adjuster from June 2014 to January 2017. In February 2015 he 

was trained in and understood AJM’s work rule prohibiting adjusters from lifting the scrap chute 

to clear paper jams. (T. 302-04, 350-52; Ex. R-14 at 3; Ex. R-27 at 1; Ex. R-31). Griner testified 
70 

that after this training, supervisors became strict on enforcing the rule for about two months, but 

then he began to see other adjusters, as well as floor supervisors (Egorov and Gaddy), reverting to 

the practice of lifting the scrap chute to clear paper jams. (T. 360-61). He testified that after seeing 

others revert to lifting the scrap chute, he started doing it too, and that sometimes the scrap chute 

would fall from its raised position. (T. 361-62). He was not asked how frequently he engaged in 

the practice or how frequently he observed others engage in the practice. 

Dallas Benjamin was employed as an adjuster-trainee for about three weeks in August and 

September 2016. He testified that (1) during his short tenure he raised the scrap chute “maybe 10 

to 15 times a day” to clear paper jams by accessing the scrap chute through the scrap chute guard 

on the operator’s side of the PCM, (2) he had been taught to do this during his training, (3) he had 

witnessed other adjusters do the same thing every day, and (4) he had never been instructed to 

refrain from lifting the scrap chute. (T. 100-01, 153-55). 

As previously noted, D.F., who worked as an adjuster from March 2015 to September 2016, 

testified that he typically raised the scrap chute once a day to clean the PCM’s rails, but he was 

not asked whether he ever had occasion to raise the scrap chute to clear a paper jam. (T. 656-58).

W.F. was employed as an adjuster at the Facility from August 2013 through April 2017, 

when he voluntarily resigned and took other employment. (T. 2730-32; Exs. R-36 at 1; Ex. R-38 

at 1-2). W.F. testified that in 2012 when he was an adjuster-trainee, he was taught to raise the 

scrap chute to clear paper jams, that this practice was “normal” at that time, and that he had raised 

the scrap chute to clear jams up until the time he sustained the amputation injury on May 8, 2016. 

(T. 2746-48). He testified further that he continued to raise the scrap chute to clear paper jams 

even after he suffered the amputation injury. (T. 2748). He testified that he typically lifted the 

scrap chute about once daily for each PCM he was operating. (T. 2748, 2733). He testified that 
71 

after being trained in February 2015 on the rule not to raise the scrap chute to clear paper jams, 

that he continued to do so, explaining the rule “wasn’t really being enforced like that.” (T. 2817). 

He testified further that around the time of his injury in May 2016 he observed other adjusters 

lifting the scrap chute on a daily basis, and he had even observed his floor supervisors (Efrain 

Machuca20 and Salvador Cruz) engage in the practice. (T. 2748-50, 2817-23, 2777). W.F. testified 

that he was able to clear paper jams faster by raising the scrap chute. (T. 2761). 

In contrast, current AJM supervisors testified uniformly that in their surveying of the 

production floor that they had never seen adjusters raise the scrap chute to clear a paper jam after 

the rule prohibiting that practice was implemented. 

The plant manager, Roger Finckbone, testified that he has never seen the scrap chute in the 

raised position on the production floor and he could conceive of no circumstances in which it 

would be necessary for an adjuster to raise the scrap chute in order to do their job. (T. 2498-2502). 

So far as he was aware, no adjusters had indicated that following the rule would hinder them in 

performing their job. (T. 2499). 

Robert Cutler, the human resources manager at the Facility whose responsibilities included 

coordinating safety training, investigating accidents, and imposing employee discipline (T. 1425, 

1428-30; Ex. R-1), testified he had never seen employees raise or lift the scrap chute, and that if 

he had, or if that activity had been reported and confirmed, the offending employee would have 

been disciplined. (T. 1668-73).

Marc Saylor, the assistant plant manager since 2012, testified that he spent four to six hours 

each day walking the production floor and that prior to implementation of the rule prohibiting 

20 Transcript page 2749 and 2817 reflects the phonetic spelling of W.F.’s identifying 

Machuca. A correct spelling of the Machuca’s name appears at T. 2104. 
72 

lifting the scrap chute, he had not been aware that the scrap chute it was capable of being lifted. 

(T. 1861, 1887-88). He could not conceive of any reason for an adjuster to raise the scrap chute 

to do their job. (T. 1888). 

Brandon Mendieta, who was W.F.’s immediate floor supervisor when he suffered the 

amputation injury in May 2016, testified that he had never seen W.F. or other adjusters raise the 

scrap chute. (T. 2109, 2122). (At the time of the CO’s walkaround on August 25, 2016, Mendieta 

was no longer working as a floor supervisor (T. 2122).) Mendieta testified further that it was not 

necessary for adjusters to raise the scrap chute to do their job (T. 2095), and that before the rule 

was implemented in February 2015 he was unaware that the scrap chute was capable of being 

raised. (T. 2098). 

Another floor supervisor, Lena Mays, who has worked at the Facility since it opened in 

2009, testified that she had not known the scrap chute could be raised until the rule prohibiting 

adjusters from raising it to clear paper jams was implemented, and that after the rule was 

implemented she had not witnessed any adjuster raise the scrap chute. (T. 2279-81). She testified 

she knew of no reason an adjuster would need to raise the scrap chute to do their job, and that no 

adjuster had indicated to her that it was necessary to raise the scrap chute to perform their job. (T. 

2280-81). 

Another floor supervisor employed at the Facility since 2009, Bill Samosky, testified that 

he is on the floor 95% of the time checking employees’ work practices. (T. 2334-39). He had 

been aware that the scrap chute could be raised before the rule prohibiting adjusters from doing so

to clear paper jams was implemented. He testified that he believed adjusters would not need to 

raise it to do their jobs, and that he did not believe raising it made it easier to clear paper jams. (T. 

2361-62, 2383-84). 
73 

A floor supervisor and a former adjuster, Dmitry Egorov, testified that he could not 

conceive of a reason for an adjuster to raise the scrap chute to do their jobs. (T. 1963). 

One of the two non-supervisory employees called by AJM, Jorge Gonzales, has worked as 

an adjuster since 2014 and testified that he has never raised the scrap chute. (T. 2422). He testified 

further that he did not believe it was necessary for adjusters to do so to operate and adjust the 

PCMs. (T. 2422). 

Before W.F. was disciplined in May 2016 for having raised the scrap chute while clearing 

a paper jam, no other employee had been disciplined for violating this rule. According to AJM

managers and supervisors, no such violations had been identified and reported in the approximate 

fifteen months since the rule had been implemented. (T. 1621, 2610). 

The testimony of the former AJM employees about the continued lifting of the scrap chute

after the implementation of the rule prohibiting adjusters from raising it to clear paper jams was 

somewhat scattered with respect to the frequency and reasons adjusters had for lifting it. James 

Beals testified he had lifted the scrap chute to clear paper jams but had done so only rarely. D.F. 

testified he raised the scrap chute about one time a day, but only to clean the rails. David Griner 

testified that he continued to lift the scrap chute after seeing other adjusters and even floor 

supervisors do so, but he did not testify to how frequently he did so. W.F. testified that on average 

he raised the scrap chute to clear a jam about one time a day on each of the PCM’s he was 

responsible for, and that he continued this practice even after he was seriously injured and then

disciplined after having violated the rule. Dallas Benjamin, who worked for only three weeks and 

did not complete new adjuster training, testified that he lifted the scrap chute 10 to 15 times a day 

to clear paper jams. AJM argues that the testimony of the former employees should be discredited
74 

for a variety of reasons, including that each had reasons to be disaffected and harbor biases against 

AJM. 

The testimony of current AJM supervisors and employees was generally consistent that 

none had observed instances of adjusters violating the rule and none could conceive of a reason 

that an adjuster would need to do so to do their jobs. 

The Secretary argues that because AJM modified the mounting mechanism for the scrap 

chute in a manner that allowed employees to raise the scrap chute with relative speed and ease, it 

should be inferred that “AJM wanted employees to raise the scrap chute.” (Sec’y Br. 39). It is 

certainly reasonable to infer that this was AJM’s objective when it modified the PCMs in this 

manner, which was sometime before AJM opened the Facility in 2009. (T. 1335). But it is far 

from clear on this record whether this modification was made to facilitate the work of adjusters 

rather than some other cohort of employees such as the maintenance mechanics, who are required 

to remove the scrap chute from time to time. (E.g., T. 1230, 1346-47, 2423-24, 2477-78, 2498). 

AJM’s subsequent implementation in February 2015 of the work rule that was directed only at 

adjusters and that prohibited adjusters from raising the scrap chute to clear paper jams dispels the 

inference that the modification was made to entice adjusters to raise the scrap chute. Other 

evidence that some employees were unaware that the scrap chute could be raised prior to the rule 

being implemented in February 2015 (T. 2098, 2279), or had discovered only through inadvertence

that the scrap chute could pivot upward (T. 2609, 2687), further suggests that AJM’s modification 

to the way the scrap chutes were mounted in the PCMs was not made with a view to encouraging 

or allowing adjusters to raise the scrap chute. (T. 1346-47, 1375-76).

With the possible exception of Dallas Benjamin’s testimony that he lifted the scrap chute 

10 to 15 times a day over the course of his three weeks of employment as an adjuster-trainee, the 
75 

testimony of former and current employees regarding their practices after the rule was 

implemented was facially credible. It is entirely believable that W.F., Griner, D.F., and Beals

lifted the scrap chute in the manner and frequency with which they testified. Testimony that they 

had observed floor supervisors do the same is no more credible than the testimony of two of the 

supervisors they identified who essentially controverted having violated the rule themselves. 

The whole of the evidence is insufficient, though barely, to prove by a preponderance that 

supervisory or managerial personnel had actual knowledge of the rule having been violated 

through the time of W.F.’s amputation injury on May 8, 2016. The evidence is insufficient to 

establish by a preponderance that AJM did not adequately supervise adjusters to prevent violations 

of the rule prohibiting the raising of the scrap chute to clear paper jams.

iii. Anticipating Hazards, and 

Measures to Prevent Occurrence of Violations 

The managers and supervisors at the Facility uniformly believed that adjusters had no need 

to raise the scrap chute to perform their duties. (E.g., T. 2609, 2498-2500). It was only after an 

employee was injured in February 2015 after raising the scrap chute while attempting to clear a 

paper jam that AJM implemented a rule prohibiting that conduct. Even though the rule was not

intended to protect adjusters from the gravitational energy present in the raised scrap chute (see 

footnote 18 supra), compliance with the rule would have the unintended ancillary effect of 

preventing the hazardous physical condition involved in instance “d” from materializing. AJM’s 

rule prohibiting the raising of the scrap chute to clear paper jams was an adequate measure to 

anticipate and prevent hazards from materializing in view of the AJM’s conclusion that there 

existed no enticement for adjusters to raise the scrap chute to clear paper jams to make their work 

go faster and to increase their personal productivity. Although W.F. testified that it was his regular 

practice to raise the scrap chute to clear paper jams and that he believed doing so reduced the time 
76 

it took to clear paper jams, the whole of the evidence was insufficient to establish that this practice 

was widespread among other adjusters, or that it provided a more expeditious means for adjusters 

to clear paper jams. 

iv. Regular Enforcement of Disciplinary Procedures

About 250 employees staffed the Facility covering three shifts a day that included a 

bustling production floor with more than 30 PCMs. Of the 88 documented disciplinary 

enforcements in the record for violation of the AJM’s Rule 6 (the safe work practices rule) from

2013 to September 30, 2016 (the date the citation was issued), 83 for were for a first violation 

(requiring a written warning), five were for a second violation (requiring a three-day suspension), 

and none were for a third violation (requiring termination). 

Forty-seven of the 88 violations were for unspecified violations of Rule 6. Sixteen were 

for unspecified “safety apparel” violations, and eight were for failing to wear earplugs and/or 

safety glasses. (Exs. R-6, R-23, R. 26 at 2–3 and 9–10; see footnote 5 supra regarding duplications 

in disciplinary actions reflected in Exs. R-6 and R-23). 

In the more than three years of disciplinary actions for safety violations in the record that 

preceded the issuance of the citation, seven of the 88 disciplinary actions were for employees

operating machines with guards off. That number of disciplinary actions for violation of this 

fundamental rule of the workplace is particularly notable, in that while accompanying the CO on 

his 30-minute walkaround on August 25, 2016, Finckbone and Cutler between them observed the 

three adjusters involved in instances “a”, “b”, and “c” (Beals, Mendieta, and Thompson) violating 

that same rule. No formal discipline was imposed on any of those three employees for those 

infractions. 

While it seems probable that at least some of the 47 unspecified Rule 6 disciplinary actions

during this period had been for operating machines with guards off, the whole of the record 
77 

strongly suggests that formal discipline as a consequence of breaching that rule was far from 

regular. Rather, it seems likely that supervisors frequently utilized their discretion simply to

deliver oral warnings and coaching. This is what Cutler, the human resources manager, testified 

that he did regarding Thompson’s violation of the rule that he observed on August 25, 2016 during 

the CO’s 30-minute walkaround. And this is apparently what Finckbone, the plant manager, did 

with respect to Mendieta’s violation that same day. (See, e.g. T. 527-28, 840, 1727-29, 2124-28, 

2453-54). 

While AJM’s enforcement of its disciplinary protocol for safety infractions appears to have 

been far from uniform, the whole of the evidence does not indicate that the discretion that floor 

supervisors possessed to forego formal discipline rendered AJM’s disciplinary program ineffective 

or inadequate. It is notable that several of the former employees that the Secretary called to testify 

had been disciplined for violations of various work rules including safety rules. W.F. was

disciplined in November 2013 for operating machines with guards off. (Ex. R-23 at 54). James 

Beals was disciplined three times doing the same thing—in August and October 2015 and again 

in January 2016 (although, contrary to the disciplinary protocol set forth in Rule 6, he was not 

terminated for what in actuality had been his third violation of Rule 6 over a six-month period). 

(Ex. R-26 at 2-3, 9-10, 12-13). 

v. Lack of Reasonable Diligence to Prevent or Discover 

Violative Condition for Instance “d” Not Proven

Upon consideration of the factors relevant to determining whether the Secretary met his 

burden to prove that AJM failed to exercise reasonable diligence to prevent and discover the 

violative condition, the evidence is closely balanced and is in equipoise. The Secretary has failed 

to meet his burden to prove this element of the alleged violation by a preponderance of the 
78 

evidence. See Stanley Roofing Co., Inc., 21 BNA OSHC at 1464; Schaffer v. Weast, 546 U.S. at

56. 

8. LOTO Citation Vacated 

There is substantial evidence in the record that would support opposite findings on the 

credibility and reliability of certain testimony. In the final analysis, the undersigned did not find 

one result more convincing than other differing results, all of which were grounded in crediting 

some testimony over other countervailing testimony. The undersigned is not reluctant to find that 

a witness has not been truthful or fully forthcoming when such a finding is warranted and reasons 

for that finding can be articulated. E.g., Outfront Media, Inc., No. 17-2202, 2020 WL 3119466, at 

*13 & *19 (O.S.H.R.C.A.L.J., May 4, 2020). But on this record, there are insufficient reasons to 

discredit certain testimony or to accord greater credit to countervailing testimony on certain 

dispositive matters. This is the epitome of the evidence being in equipoise. The Secretary having 

failed to establish any of the four instances alleged to have violated the LOTO standard, citation 

2, item 1 must be vacated. 

B. Hand Protection Citation– Section 1910.138(a)

Serious citation 1, as first amended by the Secretary’s complaint and amended a second 

time during the hearing, alleges that AJM violated § 1910.138(a) on or about August 17, 2016, 

averring that AJM “did not provide or ensure use of hand protection to employees who were 

exposed to harmful temperatures from the paper products exiting the Peerless Cutting Machines.” 

The cited standard, § 1910.138(a), is titled “Hand protection” and is contained in the “Personal 

Protective Equipment” (PPE) subpart of Part 1910. 

Section 1910.138(a) provides as follows: “General requirements. Employers shall select 

and require employees to use appropriate hand protection when employees' hands are exposed to 

hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; 
79 

severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.” 

The Secretary’s theory of the violation was that employees were exposed to a thermal 

hazard from having to handle stacks of paper plates and bowls that were heated from having 

recently been processed through the PCM’s heated forming dies. (Sec’y Br. 46-53). 

“To establish the applicability of a PPE standard that, by its terms, applies only where a 

hazard is present,” the Secretary must demonstrate that “there is a significant risk of harm and that 

the employer had actual knowledge of a need for protective equipment, or that a reasonable person 

familiar with the circumstances surrounding the hazardous condition, including any facts unique 

to the particular industry, would recognize a hazard requiring the use of PPE.” Wal-Mart Distrib. 

Ctr. No. 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015), aff’d in relevant part and 

vacated in part on other grounds, 819 F.3d 200 (5th Cir. 2016). “The Secretary must show more 

than the mere possibility of or a potential for injury.” Andrew Catapano Enters., Inc., 17 BNA 

OSHC 1776, 1783 (No. 90-0050, 1996) (consolidated). Rather, in order to establish that an 

identified alleged hazard presents a “significant risk of harm,” the Secretary must prove that the 

circumstances in the workplace are “likely to give rise to the alleged hazard” for which the PPE is 

needed. See Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 63-67 (2d Cir. 1983). 

The Secretary failed to prove that handling the paper products presented a significant risk 

of injury to employees from harmful temperatures. There was no evidence of the actual 

temperature of the stacks of paper plates and bowls that employees handled. There was no 

evidence of any employee having ever sustained a thermal injury from handling the stacks of paper 

plates, notwithstanding that a substantial number of packers, about 90% on the first shift (T. 2370) 

and about 70% on the third shift (T. 1937), opted not to wear gloves. There was no evidence 

regarding how much time it takes for a stack of plates or bowls to cool to within 30 °F. (or any 
80 

other temperature) of the ambient temperature. There was no scientific or technical evidence 

respecting the temperatures at which the heated paper products, which by nature are nonconductive, are likely to present a significant risk of thermal injury to persons who were required 

to repeatedly handle the products. There was no scientific or technical evidence of the properties 

of the paper stock used at the Facility in retaining and dissipating heat following the paper’s contact 

with the heated forming dies. There is no evidence of any measured time interval between the 

moment a stack of paper plates or bowls is discharged from the stacker and when the stack reaches 

the runout table, where the packers would handle them. (T. 2298). 

The absence of the type of evidence described above would not necessarily be fatal to the 

Secretary’s case, if there had been reliable testimonial evidence that handling the paper products 

presented a significant risk of injury from harmful temperatures. But testimony on the risk of such 

injury was not sufficiently probative to carry the Secretary’s burden of proof. 

The only witness that the Secretary presented who had worked as a packer at the Facility

was Mr. Merris Hopson, who was a former employee who had worked as a packer for two months 

in 2016. (T. 563). Hopson’s testimony, even when accepted at face value, is insufficient evidence 

to meet the Secretary’s burden of proof. He testified he had not experienced any pain or discomfort

due to heat from handling the plates, that the heat of the products caused “[j]ust a little tingling, I 

guess, smoothness in my fingers,” and that there were never instances when the paper products 

were too hot to handle. (T. 559, 562). Hopson indicated that he and other packers allowed the 

stacks of products that are conveyed to the runout table “to cool off a little bit” before handling 

them. (T. 560). Hopson suggested further that in the atypical circumstances when a PCM 

malfunctions in a way that results in the forming die scorching the paper, packers would not 

immediately handle the scorched product. (T. 560-61). 
81 

Several other former AJM employees who had not worked as packers provided conclusory 

unsupported testimony that there was a significant risk of harm from handling the plates. (T. 238). 

For example, James Beals made the intuitively impossible supposition that the temperature of the 

plates exiting the forming dies was as much as 600 °F. (T. 238, 250). 

James Griner was another former adjuster at AJM who provided conclusory testimony that 

“sometimes them plates come out pretty hot, and they burned my hands,” but then he indicated 

that the product “didn’t technically burn” (T. 357) and that he was never actually burned but rather 

that the product is “hot enough to where you can only hold them for a couple of seconds ... and 

that’s it.” (T. 340). He testified that “not too often” but “every now and then” there would be 

malfunction and the forming dies would get too hot and the damaged product would be too hot to 

pick up. (T. 338-39). He did not testify having ever witnessed an employee handle product in that 

condition. 

The CO testified that he conducted private interviews with two packers (Y. Valdez and T. 

Woolery). One of those packers told the CO that she bought and wore her own gloves because the 

product was “too hot for her hands” (T. 806, 812), and the other packer told the CO that the “paper 

plates are very hot when they” exit the PCM so he bought and used his own gloves. (T. 812). The 

statements of these two packers to the CO, not subjected to exploration on cross-examination, are 

insufficiently probative to establish that handling the product objectively posed a significant risk 

of thermal injury to employees. 

The Secretary’s evidence presented in support of the alleged PPE violation was 

substantially outweighed by countervailing testimony presented by AJM supporting its argument 

that the conditions at the Facility do not pose a significant risk of injury from contact with plates 

that retain residual heat after having exited the PCMs. (See evidence cited at Resp’t Br. 35). 
82 

Accordingly, the amended PPE violation that was originally alleged as serious citation 1, 

item 1, is vacated for the Secretary’s failure to carry his burden of proof. 

IV. ORDER

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

with Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). If any finding is in actuality a 

conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed 

so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact and 

conclusions of law, it is ORDERED that: 

1. Citation 1, item 1, as amended, alleging a serious violation of 29 C.F.R. § 1910.138(a), 

having not been proven, is VACATED. 

2. Citation 2, item 1, as amended, alleging four instances (“a”, “b”, “c” and “d”) of a 

repeated violation of 29 C.F.R. § 1910.147(c)(4)(i), having not been proven, is VACATED. 

/s/

WILLIAM S. COLEMAN

Administrative Law Judge

Dated: September 8, 2020