THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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| SECRETARY OF LABOR,                     |
| Complainant,                            |
| v.                                      |
| ANTHONY MARANO CO., and its successors, |
| Respondent.                             |

OSHRC Docket No.19-0622

Appearances:

Mark H.Ishu, Esq.& Bruce Canetti, Esq., Department of Labor, Office of the Solicitor,Chicago, Illinois

For Complainant

Mark W. Horn, Esq. & Michael F. Cocciemiglio, Esq., Smith Amundsen, LLC, Chicago, Illinois

For Respondent

Before: JudgePeggy S. Ball– U. S. Administrative Law Judge

DECISION AND ORDER

OnOctober 30, 2018one of Respondent’s employees was seriously injured while cleaning arunning conveyor belt with a hand towel.After conducting an inspection, Complainantissued a Citation and Notification of Penalty alleging, amongst other things, Respondent’s failure to properly implementits Lock-out/Tag-outprogram with respect to the conveyor belt where the employee was injured. In response, Respondent claimsthe LOTO standard does not apply tocleaning theconveyor belt in question. Alternatively,Respondent argues theactivity falls under the minor servicing exception to the standard.After reviewing the record evidence, as well as the parties’ respective briefs, the Court finds Respondent violated the standard as alleged, becausetheextensive nature of the cleaning, its timing, and the level of exposurefar exceed what was envisioned by theminor servicing exception, as well as the case law interpreting that provision.

I.JURISDICTION

Respondent contends Complainant failed toestablishthe Commission has jurisdiction over this matter.Complainant asserts Respondent waivedany jurisdictional arguments.Upon further review of the matter, the Court findsneither party has itentirelyright.The Court finds Respondentinvoked the Commission’sjurisdictionwhen it filed a Notice of Contest.SeeMarshall v. Occupational Safety and Health Rev. Comm’n,635 F.2d544,549(6th Cir. 1980)(citing 29 U.S.C.§ 651(b)(3)).WhatRespondent is reallydisputingis whether Complainant establishedRespondent is“engaged in a business affecting commerce. . . .”29 U.S.C. § 652(5).Respondent contends Complainant failed to put forth any evidence its business affects interstate commerce.The Court disagrees.

There are two pieces of evidence the Court finds persuasive. First, Respondent admits its activities are regulated by theFood and Drug Administrationand the United States Department of Agriculture, whose own jurisdiction is predicated on a company’s impact upon interstate commerce. (Tr.601).See, e.g.,21 U.S.C. Title21, Food and Drugs. Second,and relatedly,Respondent is engaged in a business that,by its natureaffectsinterstate commerce.Just like construction, the aggregate activities of food producers, regardless of their individual impact,has an effect oninterstate commerce.SeeSlingluff v. Occupational Safety and Health Rev. Comm’n,425 F.3d861,867(10th Cir. 2005) (“Rather,Lopezrecognized that if a federal “statute regulates an activity which, through repetition, in aggregate has a substantial effect on interstate commerce, ‘thede minimischaracter of individual instances arising under that statute is of no consequence.’”(quotingLopez,514 U.S. at 558, 115S.Ct. 1624)(internalcitation omitted)).Respondent packages fruits and vegetables to be inserted into the stream of commerce for distribution.

Based on the foregoing,Court finds the Commission has jurisdiction over this matter under section 10(c) of the Act.See29 U.S.C. § 659(c).The Court also finds Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of sections 3(3) and 3(5) of the Act.See29 U.S.C. §§ 652(3), (5).

II.PROCEDURAL HISTORY

As noted above, this case was initiated when one of Respondent’s employees, R.A., wasinjured while she was cleaningand dryinga conveyor belt that remained energized and running during the cleaning process. Complainant wasnotified of the accidentthe same dayby the Chicago Fire Department, which hadresponded to the initial report of an injury at Respondent’sfacility. (Tr. 248).Complainantsent Compliance Safety and Health OfficerVictoriaCypraintoconduct an inspection of Respondent’s facility onNovember 5, 2018.

As a result of CSHOCyprain’sinspection, she recommended, and Complainant issued,a Citation and Notification of Penaltyallegingthree violationsof the Occupational Safety and Health Act (“the Act”). Two of theCitation Items allege serious violations of the LOTO standardsfound at 29 C.F.R. § 1910.147, and the remaining other-than-serious violation alleges a violation of the recordkeeping standard found at 29 C.F.R. § 1904.29. Complainant has proposed a total penalty of $28,415for all three. In response to the Citation, Respondent filed a Notice of Contest, which brought the matter before the Commission.

Duringpre-triallitigation, a dispute arose overRespondent’s refusal to provide documentation fromaninspection conducted by itsworker compensation andcasualty insurers. Complainant filed a motion to compel seeking production offactual materials resulting fromRespondent’s insurer’s (Travelers) investigation of the incidentand conveyor operationat issue in this case.Respondent claimedproduction was precluded by work-product and Insured/Insurerprivileges(Respondent’sObjectionto the Secretary’sRequestforIssuance ofSubpoena), butthe Court found Respondent’s claims, at least with respect to factsand datastemming from the investigation,were without merit.SeeOrderRegarding Request for Subpoena Duces Tecum(March 10, 2021);OrderGrantingMotiontoCompel(July 6, 2021).Respondent failed to comply with the Court’s Orders.

On the Friday beforetrial beganon, Respondent filed a Petition for Interlocutory Review(PIR)with the Commission seeking review of this Court’s Order Granting Motion to Compel.Though the PIR was pending before the Commissionat the time of the trial,it had notbeen(nor was it ever) acceptedby the Commission.During the pendency of the PIR, the Court was not obligated to stay the proceedings,especiallymere days prior to the trial.The Court continued to have jurisdictionto provide the partiesafull and fairopportunity to present their evidence.Notwithstanding Respondent’s failure to complywith the Order, the Courtstillprovided Respondent with an opportunity to provide the documents for anin camerareview during the trial.Respondentcontinuedto refuseto providethe documents to Complainantor to the Courtforincamerareview. Respondenthas not fileda privilege log, nor did it assert a specific privilege; rather,at trialRespondent’s counselassertedsomeephemeral, unnamed privilegepurportedlypredicated on his dutyas attorney for the Respondentunder the rules of professional conduct. (Tr. 183).Due to Respondent’s failure tocomply with the Court’s orders, the Court sanctioned Respondent by affirming Citation 1, Item1,and its associated penalty.Both parties continued to pursue the matter after the close of trial,seeking further subpoenas andsanctions,but all such requests were denied by the Court.

The trial was held onJuly 13-15, 2021, in Chicago, Illinois. Both parties submitted post-trial briefs for the Court’s review.Based on the evidence at trial, and the parties’ respective briefs, the Court issues the following Decision and Order.

III.FACTUAL BACKGROUND

A.Respondent’s Business

Respondent is a family-owned, wholesale produce company located in Chicago, Illinois. According to Respondent, it employs approximately 150 producerepackers, whosortproduce on a conveyorfor packaging and shipment. (Tr. 603-604, 720). Therepackers’ shifts typically start at 5:00 a.m. and last 10-12 hours during the week and 8-10 hours on Saturdays. Although Respondent has 17 conveyor lines in various configurations, the repacking process is, in the words of Respondentthe same all day, every day.(Tr.185).

B.Sorting and Repacking

Theprimary responsibility of therepackersis sorting produce as it travels along the conveyor to bepackaged:they remove produce from boxes, place it on the conveyor, and remove any produce from the line that does not meet quality standards. (Tr.604, 619). During this process,therepackersstand on either side of the conveyoras it moves produce towards the repackaging machine. (Tr. 117, 619).Therepackerswill touch the moving conveyor belt as they removeand/or place fruit on it. (Tr. 530, 605; Ex. R-5).Both CSHOCyprainand Complainant’s expert,AaronPriddy, agreedthe sorting process did not require lock-out/tag-out, nor did they identifyahazard associated with the sorting process.(Tr. 412-413, 528-530).

C.Cleaning

In addition to sorting produce,repackersare also responsible for cleaning the conveyors. (Tr. 674-676).There are two types of cleaningrepackersperform: changeover cleaning and end-of-shift cleaning.Changeover cleaning occursduringthe workshift,where theproduce is literally changed over from one type to another.1(Tr.417-18).End-of-shift cleaning, as the name implies,occurs at the end of the workday. (Tr. 598).The primary purpose of these cleanings is to prevent cross-contamination ofproduce, which can result inthe transmission of foodborne pathogens. (Tr. 598, 607, 676-678).

According to Respondent’s description, there are many similarities between the two cleaning processes. First and foremost, themachine isenergizedand the belt is moving during the entire cleaning process. (Tr.123).Thebelt on the cited conveyorhad variable speed control, which ranged fromone- to 31-feet/minute.(Tr.180-81, 306; Ex. C-3 at 12).O’Brochtatestifiedthe belt had a “cleaning speed” of 5-10 feet/minute, butemployeeMaria Azatestifiedthe belt was typically run at a higher speedwhile they were cleaning.2(Tr.156-57, 256).Second, the purpose behind the cleaning is to prevent contamination, whether during the shift or at the end.(Tr. 418).Third, there is no food being sortedwhile the cleaning process is occurring. (Tr.295).

According to Respondent, theprimary difference between the two cleanings, other than the time at which they occur, is the depth of cleaning.3In a changeover cleaning, the concernis cleaning the area where the food touches, which is primarily the belt.During end-of-shift cleaning, however, therepackersare expected toclean the beltand frame, as well as dry the entire set-up to prevent pooling water, which canfoster bacteria growth.(Tr.52-54, 678, 797).Contrary to the representations of Respondent, however,therepackerstestifiedthere was no notable differencebetweenchangeover or end-of-shift cleanings. (Tr.54-55, 171). Therepackerstestifiedthey wererequired to clean the belt and frame of the conveyorthoroughlyand thattheirsupervisor, or “checker”,would check their work to ensure the conveyor was cleaned properly and was “bone dry”, regardless of whether it was a changeover or end-of-shift cleaning.(Tr.71).

D.R.A.Was Injured DuringEnd-of-ShiftCleaning

Respondent contendsR.A. was injured during a changeover cleaning, notwithstanding the fact that therepackersall testifiedthe cleaning occurred at theend of R.A.’s shift at1:30 p.m.onOctober 30, 2018.(Tr.77).According to therepackers,they used soap, scrubbed, rinsed, and dried the entire conveyor, including the frame, while it was moving. (Tr.69, 75, 123-125, 172-173). This is consistent with Respondent’s characterization of the end-of-shift cleaningboth in scope and in terms of the timing. The Court rejects Respondent’s assertion to the contrary as inconsistent with the evidence.

According to R.A.’s testimony, she wasdrying an area of the conveyoror conveyor frameadjacent to arollernear the end of the conveyor. (Ex.C-3 at 9,C-4 at 1; Tr. 137, 185, 187, 189).She was using arag to dry around the belt and frame of the conveyorwhen the roller pulled her rag and arm into the nip point, causingmultiple fractures and nerve damage.(Tr.81, 83, 137, 186; Ex. C-3 at 9). According to R.A. and her coworkers, theywere cleaningthe belt in the same manner they always do. (Tr. 148, 175).When R.A.’s arm was drawn into the conveyor,her coworker directed anotherrepackerto hit the emergency stop buttonso R.A.’s arm could be removed from the pinch point. (Tr.84). The fire department was called, and R.A. was transferred to a local hospital to treat her injuries. (Tr.188).

E.The Inspection

CSHOCyprain’sinspection included a review of the conveyor involved in the incident, as well as interviews with therepackerswhoworked alongside R.A.and members of the managementteam. According to CSHOCyprain,Respondent’s CFOand COO, TorrePalandri, and Respondent’sVice Presidentof Facilities, RyanO’Brochta, told her the conveyor was in the same conditionat the time of the inspectionithad been inon the date of theincident. (Tr.263).Mr.O’Brochtaalso told CSHOCyprainthe system had to be locked outon the panel located on the wall opposite the conveyor. (Tr.264). Indeed, the panel was locked out in this manner during this inspection. (Tr.265).

The Court notes the foregoing statements by Mr.O’Brochtaand Mr.Palandriareinconsistent with the testimony of therepackers, as well their own testimonyat trialand in depositions.According to therepackers’ trial testimony,as well asMr.Palandri’sand Mr.O’Brochta’sdeposition,two guards that appear in photographic exhibitswere not present on the conveyor at the time ofR.A.’s injury. (Tr.73, 130, 646-653, 751; Ex. C-3, C-33, C-34, R-34).These guards included a yellow sweep guard and a metal guard with a red lineon it. (Ex.C-3 at 5 to 10). Mr.O’Brochtatestifiedat trialthe yellow guardhadalwaysbeenpresent, but that the red lineguard was added after the fact.4In either case,the evidence showsthe conveyorhad beenaltered,and its condition at the time of the accident wasmisrepresented to CSHOCyprain.

Thisinconsistencyalso applies to Mr.O’Brochta’srepresentations about the power source for, and the proper method oflocking out, the conveyor system. According to CSHOCyprain,Mr.O’Brochtatold herthe power source was located on a wall opposite the conveyor. At trial, however, Respondentattempted to showthe conveyor was powered bya cord and plug drop that hung from the ceiling, even though Mr.O’Brochtatestifiedthe conveyor was powered by conduit. (Tr.618, 667; Ex. C-3).In other words, notwithstanding Respondent’s protestations about thequalifications of CSHOCyprainregardingher ability to properly identify power sources, it is clear to this Court that any misunderstanding on CSHOCyprain’spart is a direct result ofthe information provided to herand was notindicative ofanylack ofdiligence or qualifications.

Theinconsistency between the statements given to CSHOCyprain, the testimony given at deposition, and the testimony provided at trialcallsinto question the credibility of the statements provided by Mr.O’Brochtaand Mr.Palandri.As such, to the extentMr.O’Brochta’sor Mr.Palandri’stestimony conflicts with otherwise credible and reliable evidenceprovided by CSHOCyprainor therepackerswhotestified,it shall be discounted unlessthe factsas a wholecompel a different result.5Along similar lines, the Court sees no reason to discount thetestimony of either CSHOCyprainor Complainant’s expert, Mr. Aaron Priddy, based solely on the fact they do not possess college degreesas compared to Mr.O’BrochtaorRespondent’s expert, Brian Dudgeon.This critique rings hollow in a case such as thiswhere anadvanced education inmechanical engineering is not a prerequisite to understandingwhether cleaning is an integral part of the repacking process and whetherthe LOTO standard applies to the conditions on the cited conveyor.6

Finally, CSHOCyprainalso discoveredRespondent’s 300 logs, which track injuries occurring at the workplace, provided insufficient descriptions of the injuriesbeing recorded[in violation of29 C.F.R.1904.29(b)(1)].

IV.LEGALANALYSIS

To establish aprima facieviolation of a specific standardunder Section 5(a)(2) of the Act, the Secretary must prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer’s employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions.OrmetCorporation, 14 BNA OSHC 2134 (No. 85-0531, 1991).

The Secretarymust establishhisprima faciecase by preponderance of the evidence.See Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995).

“Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014).

A.Citation 1, Item2

Complainant alleged a serious violation of the Act in Citation1,Item2as follows:

29 CFR1910.147(d):The established procedure for the application of energy control (the lockout or tagout procedures) did not cover the actions listed in and was not done in sequence as required by 29 CFR 1910.147(d)(1)-(6):

a)Warehouse, Galaxy Line 8 – On or about October 30, 2018, employees were exposed to machinehazardsassociated with moving parts and nip points when cleaning the infeed conveyor belt connected to theHarpakUlmaHigh Speed Wrapping Machine, Model Galaxy, Serial #2104536. The employer failed to implement energy control application steps as the conveyor was not shut downor turned off to perform the servicing work [perthe 1910.147(d)(2) requirements]. As a result, the remaining applicable energy control elements, involving machine isolation [(d)(3)], LOTO device application[(d)(4)], dissipation of residual energy [(d)(5)], and verification of isolation [(d)(6)], were not implemented to protect employees from machine servicing hazards.

SeeCitation and Notification of Penaltyat7.

1.The Standard Appliedand its Terms Were Violated

According to 29 C.F.R. § 1910.147(a)(1)(i), the LOTO standard “covers the servicing and maintenance of machines and equipment in which the unexpected energization orstart upof the machines or equipment, or release of stored energy, could harm employees.”As such, Respondent contends it is incumbent upon Complainant to prove (1) the cleaning performed by therepackersqualifies as“servicing and maintenance”; (2) therepackerswere exposed tothe hazard of unexpectedenergization; (3) and could be harmed thereby.The Court shall addresstheseelementsbelow.

a.Respondent’s Employees Were PerformingService and/orMaintenance

Respondent contendsneitherthe changeovernorend-of-shift cleaningswereservicing and maintenance as those terms are understoodaccording to the standardbutare instead part of “normal production operations”, which are not covered bythe standardexcept within the exceptions discussed below.See29 C.F.R. § 1910.147(a)(2)(ii).Normal production operations are defined as“the utilization of a machine or equipment to perform its intended production function.”Id.§ 1910.147(b).Although the standard covers servicing and maintenance, those activities are onlycovered by the standardduring normal production operationsif “(A) an employee is required to remove or bypass a guard or other safety device; or (B) an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is actually performed upon the material being processed(point of operation) orwhere an associated dangerzone existsduring a machine operating cycle.”Id.§ 1910.147(a)(2)(ii)(A)-(B)(emphasis added).Section 1910.147(a)(2)(ii)(B) also contains an exception to the foregoing for minor servicingactivities; however, the Court shall address this later in this section.

The Court finds Respondent’s attempt to redefine what constitutes ‘serviceand/or maintenance’ runs afoul of the plain language in § 1910.147(b). According to the definition section, service and/or maintenance is:

Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment. These activities include lubrication,cleaningor unjamming of machines or equipment andmaking adjustmentsor tool changes, where the employee may be exposed to the unexpectedenergization or startup of the equipment or release of hazardous energy.

Id.§ 1910.147(b)(emphasis added).Indeed, thisplain languageunderstanding of cleaning as service or maintenance isrecognizedin Commission case law.See, e.g.,Burkes Mech. Inc.,21 BNA OSHC2136 (No.04-475,2005) (finding LOTO standards found at 1910.147and1910.261, which is a paper industry specific LOTO standard, both apply tocleaningfuel wood debris fromaround and underneath a conveyorthat was running during cleaning operations).

The Court sees no reason to depart from the standard’s clear application tocleaning, especially where, as here, there is a Commission case directly on point in terms of its facts and holding.See Burkes Mech, Inc.,supra.Further, the Court finds Respondent’s understanding of“normal production” operationsstrains the most generous understanding of that term.See29 C.F.R. § 1910.147(b).Normal production operations are defined as “the utilization of a machine or equipment to perform its intended production function.”Id.§ 1910.147(b).Thisconveyor has a singular purpose: to move produce from one end to another.Repackersuse the machine to perform the intended function of food sorting; allowing the food that is considered fit for consumption to travel along the conveyor to the repackaging machine. (Tr.111,589, 604-605). The Court does not question that cleaning the conveyor is vital to food safety; however, the act of cleaning is not, in the words of the standard, a use of the machine to perform its intended functionof food transport. The cleaning of the conveyor is an ancillary process to prevent cross-contamination and to ensure continued operationof the conveyor, but it is notperformedin order totransport food for repackaging.Further,the court must consider both the nature of the work being performed andwhen the work occurs.See Westvaco Corp.,16 BNA OSHC 1374(No. 90-1341,1993).Cleaning and drying of theconveyor framearound the underside and operative rollerisnotpart of the production processto sort product as it moves into the high speedpacker.

InWestvaco,wherethe employeehad toadjustthe machine to prepare for a production runand wasthus arguablyengagedina part ofits intended production function, thecourt found the process waspart of set-up, which was not a part ofnormalproduction operations.Id.In this case, not only does the plain language of the standard indicate cleaning isconsidered service and/or maintenance, but the timing of these cleaningsisno different than the adjustments being made by the assistant inWestvaco.The cleaningsin this caseoccurred at the end of a product run, or at the end of the shift.The stated purpose of the cleanings is toprevent contamination of a subsequent product, or, in other words, were in preparation for a new production to be sent from one end of the conveyor to the other.Similarly, inWestvaco, the assistant who made machine adjustments did so multiple times throughout the dayprior to the beginning of an individual and customer-specific production run.Id.Accordingly, the Court finds the activity of cleaning the conveyors while in operation constitutes service and/or maintenance according to 29 C.F.R. § 1910.147(b).

b.The Conveyor Was Subjectto Unexpected Energization

Complainant contends Respondent’s employees were performing a task thatwasgoverned by the LOTO standardsirrespective of whetherRespondent chose to have the conveyor belt running during the cleaning process.Respondent, on the other hand,contendsthe standard doesnot apply because its employees were aware the belt was runningand, therefore, were not exposed to anunexpectedenergization, start up, or releaseof stored energy.Although therepackerswere aware the conveyor was running, thekeyquestion with respect towhether an employee is exposed to unexpected energization iswhetherthe employee had “sufficient notice that energization could occur and cause injury.”Burkes Mech, Inc., 21 BNA OSHC 2136(No. 04-1475, 2007).

As noted by Respondent,‘unexpected energization’is not defined under § 1910.147(b); however, the Commission has repeatedly and consistently held“[e]nergizationis ‘unexpected’ in the absence of some mechanism to provide adequate advance notice of machine activation.”GM, 22 BNA OSHC1019,1023(No.91-2483E,2007);accordBurkes Mech., Inc., 21 BNA OSHCat2139 n.4.In other words, contrary to Respondent’s characterization,unexpected energizationhas to do with the state of the machine, not whetherRespondent’s employees were already aware the machine was running.This understanding is reiterated time and again, including in those cases cited by Respondent.

RespondentappropriatelycitesReich v. Gen. Motors. Corp., wherein the Sixth Circuit stated:

The standard is meant to apply where a service employee is endangered by a machinethat can start upwithout the employee’s foreknowledge. In the context of the regulation, use of the word “unexpected” connotes an element of surprise, and there can be no surprise when a machine isdesigned and constructedso that it cannot start up without giving a servicing employee notice of what is about to happen.

Reich v. Gen. Motors Corp., 89 F.3d 313, 315 (6th Cir. 1996) (emphasis added). Notwithstanding the appropriateness of the passage to the current case, Respondent’sreading of the passage is incorrect. From the foregoing, Respondentconcludes energization cannot be unexpected “where the employees are already aware of machine start up. . . .”Resp’tBr.at 23.This isgoesa step too far.The Sixth Circuit, as well as the Commission in the cases below, was focused on thepotentialof a machine to unexpectedly energize.Thisis whythecourt’sdiscussion is couched in terms of what is possible (“that can start up”)andhow the machine is designed to preventunexpected energization (“designed and constructed”).SeeGen. Motors. Corp., 89 F.3d at315,supra.As compared to this case, the machines inGeneral Motorshad built-inprecautions designed to alert employees to an imminent start-upand provide them with adequate time toexit the zone of danger.Id.

The Commission has applied the foregoingprinciples to a situation nearly identical to the present case. InBurkesMechanical, employees were sent to clean the areaaround and under a moving conveyor, which, due to a change in the systemrequired cleaning on a regular basis.21 BNA OSHC2136.Referencing the decision inGeneral Motors, the Commissionfoundthe offending conveyor“was neither deactivated nor‘designed and constructed’to eliminate unexpected energization. Rather, without providing notice to nearby workers, the running conveyor could have been stopped and restarted by simply pressing a button. . . .”Burkes,21 BNA OSHC 2136atn.4. The Commission also expressed concern “the BMI laborers cleaning in the bark pit were positioned in such a way that the conveyor could have unexpectedly caught hold of their tools, clothing, or body parts—all types of hazards § 1910.147 was intended to eliminate.”Id.(citingControl of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. at 36,647).On the basis ofthe above, the Commission found Burkes’ employees were exposed to the hazard of unexpected energization, notwithstanding the fact their work occurred while the conveyor was running.

The other cases cited by Respondentdo not change the foregoing.First, they are bothunreviewed ALJ decisions, which carry no precedential weight. Second, this Court finds ALJ Spies’ discussioninTownsend Tree Serviceswas more nuanced than what is suggested byRespondent.There were two situations addressed by the ALJ: (1) physical changing of the belt and blades on a tree trimmer, and (2) testing of the newly installed blades. In the first instance, the ALJfoundthe machine was effectively locked out.See Townsend TreeSvcs. Inc., 21 BNA OSHC 1356, 2005 WL 2329316 at *5(No.04-1157, 2005). As regards the testing,this Court disagrees withthe ALJ’sholding insofar asthe controlstheALJ painstakingly recounted as constituting an effective LOTO system while theblades and belt on the trimmer were being replaced were not observed during the testing phase.Id.

TheALJ decision inAlroSteel Corporationis alsomore nuanced than suggested by Respondent. InAlro, the ALJwas confronted with a machinethat was effectively locked out, albeit not in the manner sought by Complainant.SeeAlroSteel Corp.,25 BNA OSHC 1839 (No. 13-2115, 2015).According to the ALJ, even though the “lock out” performed by Respondent wasnot done at the primary shut offbut was instead shut down and locked out on the machine’s control panel, Respondent’s employees were not exposed to unexpected energization.Id.The ALJ made this determination based, in no small part, on Complainant’s failure to presentpersuasive evidence to meet its burden of proof and overcome Respondent’s expert testimony, which showedthe controls used by Respondent would not subject its employees to unexpected energization, start up, or release of hazardous energy.Id.

The fact therepackerswere aware theconveyor was runningduring the cleaning process is immaterial to whetherrepackerswho were assigned to cleanit were exposed to unexpected energization. Unlike the machines inGeneral Motors,the conveyor did not have a series of warnings and systems to prevent employees from being exposed while in the zone of danger, nor did it have the functional equivalent as the ALJ found inAlro. Instead,Respondent had a conveyor that could be sped up, slowed down, turned off, or turned on again without warning to therepackeremployees responsible for cleaning it.This is the case regardless of whether the system washard-wired,cord-and-plug, or some combination thereof.7In addition, one of therepackersspecifically testified there have been occasions where the conveyor would startunexpectedly. (Tr. 49).Thus, the Court findsthe conveyor was capable of unexpected energization.

c.Respondent’s EmployeesWere Exposed to the Hazard of Unexpected Energizationand Could be Harmed Thereby

As noted above, service and maintenance activities are only covered by the standard if“(A) an employee is required to remove or bypass a guard or other safety device; or (B) an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is actually performed upon the material being processed (point of operation) orwhere an associated danger zone exists during a machine operating cycle.”29 C.F.R. §§1910.147(a)(2)(ii)(A), (B) (emphasis added).

Respondent makes much of the fact thatthere were guards in place on the conveyor, albeit not all the guards identifiedin the exhibits submitted into evidence, that wouldprevent inadvertent contact with pinch- and nip-points on the conveyor during regular production operations.While the Court agrees there is no indication that guards were removedtoclean the conveyor,the evidence showsrepackerswere expected to clean and dry the entire conveyor, inclusive of the belt and frame,during both changeover and end-of-shift cleanings.According to each of therepackersthat testified, the entire conveyor needed to be washed clean and dried, else they would be required toclean it again until it was done to the satisfaction of their supervisor or a “checker”, who wouldreview their work. (Tr.52-53).Given thethoroughness expected of therepackersduring the cleaning process,the Court finds it is entirely reasonable to expect therepackerswouldbypass the guards deemed sufficient for normal production operations, which is, in fact, what happened to R.A. in this case.Thishazard isespecially acute becausetherepackerswere expected to use a rag/hand towel to dry the various parts of the conveyor, which negates any protection that might have been gainedusingbrushes with extended handles.

Respondentargues its employees were expressly trained not toreach into areas of danger during the cleaning process; however,the Court findstwo problems with this line of argument. First, Respondent has a training document that says conveyors“must be off while cleaning”, but Respondent admitsitrequires the conveyor to be on during the cleaning process. (Ex. C-5).Thus, the Court is skeptical ofthe thoroughness of Respondent’s training regime, which each of therepackerssaid wasit wasmore or less nonexistent. (Tr.54-56, 143).Second,reliance upon training/administrative controls alone is insufficient whenRespondentrequires therepackersto work around a moving conveyor.BecauseRespondent requires the conveyor to be runningduring cleaning,the likelihood of inadvertent contact with moving partsis heightened.Indeed, this was the concern inBurkes,where laborerswere “cleaning near conveyor were positioned in such a way that conveyor could have unexpectedly caught hold of their tools, clothing, or body parts—all types of hazards§ 1910.147was intended to eliminate.”Burkes,21 BNA OSHC 2136atn.4.The problemwith a running conveyor orequipment, however, is notlimitedto inadvertent contact in the manner described inBurkesbut alsoinstinctual, reactivebehavior, which was the case inOtis Elevator Company.See Otis Elevator Co.,2011 WL 10604073at *3(No.09-1278, 2011) (recognizingthe potential for inadvertent contact but alsoconsidering the mechanic’s instinctive reaction to graba chain to prevent further damage to the equipment he was working on);see alsoTrinity Indus., Inc., 15 BNA OSHC1579, 1593-94 (No.88-1545, 1992)(“Standards are intended to protect against injury resulting from an instance of inattention or bad judgment as well as from risks arising from the operation of a machine.”).

Finally, Respondentappearsto argue the speed of the conveyormade it unlikelyits employees could be harmed by unexpected energization. This issimilar toits argument that, because therepackerscould see the conveyor running, they could easily avoidexposing themselves to the hazard and getting injured as a result. The simplefactis,R.A. was cleaning the conveyor in the manner she was trained and had been performing for14years.(Tr 170).Notwithstanding her training and experience, R.A. was placed in a position where she was expected to fully clean and dry the conveyor while it was runningand managed to get caught in one of the rollers, suffering severe injuries as a result.See Dayton Tire, Bridgestone/Firestone, 23 BNA OSHC 1247(No. 94-1374, 2010) (rejecting employer’s argumentthat equipment was visibleand moved slowly enough to allow employees to avoid injury). Based on the foregoing, the Court finds the standard applies.

d.The Minor Servicing Exception Does Not Apply

Within the cited standard, there is an exception for minor servicing and repairs, which states, “Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See subpart O of this part).” 29 C.F.R. § 1910.147(a)(2)(ii)(note).The Commission hasrestated the test as follows: “In order to prove a job task falls within this exception, an employer must show that (1)the tool changes and adjustments, or servicing activities, are minor; (2)they are conducted during normal production operations; and(3) effective alternative protection isprovided.”Westvaco Corp., 16 BNA OSHCat1378, 1380.Respondentcontends the cleaning process satisfies therequirements ofbeingroutine, repetitive, and integral to the use of the equipment.Based on the evidence,however,the Court finds Respondent failed to establish theexception applies.BianchiTrisonCorp. v. Chao, 409 F.3d 196, 207 (3rd Cir. 2005) (holding employer seeking exception to the rule has burden to establish it applies).

The repackaging processitselfisclearlyroutine and repetitive.For that matter, so is the end-of-shiftcleaning, insofar as it occurs at the end of every work shift. However,while cleaning the conveyor may be routine and repetitive in the colloquial sense,there are other conditions required to come under the exception.The preamble to the standard helps clarify what is intended to be covered: “OSHA’s intention was to exclude from coverage those actions which would otherwise fit within the definition of‘servicing or maintenance,’but which are actually routine, repetitive actions which are integral to the operation of the equipment for production,and which are necessary to allow production to proceed without interruption.Control of Hazardous Energy Sources, 54 Fed. Reg.36,644,36,662(September 1, 1989) (emphasis added).In other words, what the exception is really after are activitiessuch astool adjustments (as in thebelt adjuster on the conveyor in question), speed adjustments to the conveyor,and lubrication insofar as those activities occur during normal productionand effective, alternative protection is provided to those performing the service.Many of the cases discussing the exception often find the activity at issue does not qualify for the exception based on when the activity takes place.See, e.g.,Westvaco Corp.,16 BNA OSHC1374(holding adjustments to a machine during set-up, although integral to the operation of the equipment, could not be part of normal production operations);J.C. WatsonCo.,22 BNA OSHC1235 (No.05-0175et al.,2008)(holding set-up maintenance did not qualifyas occurring during normal productionand alsofindingthe activities at issue, includingfixing air leaksand changing motors, were not minor).

Respondent also failed to showit had implementedan effective alternative measureto protect itsemployees while cleaning and drying the conveyor.Respondent took great pains to showhow difficult it would be to reach the pinch point during normal operations; however, given the extent to whichR.A.and her coworkers were expected to clean and dry the machine,the guards to prevent incidental contact while sortingwere insufficient to provide meaningful protection while the conveyor was running.

In this case, the Court finds the cleanings (whether changeover orend-of-shift) were not minor activities, did not occur during normal production operations,and alternative protection was not provided by Respondent. Theprincipal purpose of the conveyor, as noted above, is to convey the produceto the repackaging machine as Respondent’s employees sort through what is acceptable and what should be discarded. This process stopswhen therepackerscleanthe conveyor. Thus, the production process is not allowed to continue uninterrupted.In this sense, cleaning does not occur during normal production operations, butis part of the set-up process for sorting different produce in the future, whether it occurs during the shift or at the end.Further, the process of cleaning itself took approximately15-25minuteseach time and required every member of the crew to stop sorting andgrab a brush or rag.(Tr. 177).Given the length of time these purported “minor” activities took, the number of people engaged in cleaning, and the fact thatcleaningtook placeaftera given produce run, the Court finds the exception does not apply.

Based on the foregoing, the Court finds the standard applies and was violated.

2.Respondent’s Employees Were Exposed to the Hazard

Complainant must show“employees . . . will be, have been, or are in a zone of danger.”SeeFabricated Metal Prods., Inc.,18 BNA OSHC 1072 (No. 93-1853, 1997).The Court hasalready addressed the issue of exposure abovebecausethe exposure requirement is built into the language of the standard.Nevertheless, the Courtwould like to take this opportunity to address someadditional arguments made by Respondent in this arena.

Respondent was particularlyfocused onhowthisparticular accidenthappened. WhileR.A.’s injury is a serious matter, the question of whether a violation of the Act occurred does not depend on the peculiarities of her incident.American Wrecking Corp., 19 BNA OSHCat1707,supra(“Determining whether the standard was violated is not dependent on the cause of the accident.”).For the purposes of exposure,it is sufficient thatR.A.was injured while performing a job required by her employer in a manner dictated by her employer. Respondent expected a dry conveyor and would have the crew redo the job if it was not to satisfaction. As such, it is reasonably predictableR.A.and her coworkers would reach into areas they may not otherwise reach into during normal operations.Thus, theCourt finds Respondent’s employees were exposed to the hazard ofunexpected energization.

Respondent called an expert witness,Brian Dudgeon,who copied significant portions of the report of Complainant’s expert, Aaron Priddy.,but opinedthelockout\tagoutstandard in question does not apply toRespondent’soperation because the probability ofinjury was too low.(Tr.785,802, 813).Complainant’s expert witness, Mr. Priddy,disputedthe inclusion of the element of probability as an element of the standard. (Tr.879-882)The court does not find Respondent’s argument regarding acceptable risk to be consistent with Commission case law, which focuses on whetherit is reasonably predictable“employees . . . will be, have been, or are in a zone of danger.”See Fabricated Metal Prods., Inc., 18 BNA OSHC 1072 (No. 93-1853, 1997).As discussed at length above,therepackerswere expected to thoroughly cleanand dry theconveyor belt and frame, which requiredreaching beyond guardsdeemed adequate for normal production.

3.Respondent Knew or Could Have Known of the Hazardous Condition 

To prove this element, Complainant must show Respondent knew or, with the exercise of reasonable diligence, could have known of the violation.Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the conditions constituting a violation, not whether it understood the conditions violated the Act.Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can prove knowledge of an employer through the knowledge, actual or constructive, of its supervisory employees.Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

The relevant facts have already beenrecounted above.Respondent admitted it directed and trained therepackersto clean the conveyor while it was running.(Tr.605-606). In addition,O’Brochtatestifiedanyemployee couldenergize the conveyorduring the cleaning process. (Tr.658).The policydirecting cleaningto occur whilethe conveyor was running,on its own, is sufficient to find Respondent had knowledge of the violation.Further, the fact that Respondent’svice president offacilitieswas also aware of the practice is another basis upon which to establish knowledge.See Dover Elevator Co., 16 BNA OSHC 1281,supra.As such,the Court finds Respondenthad knowledge of the violative conditions.

4.The Violation Was Serious

A violation is classified as serious under the Act if “there is substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). Complainant need not show there was a substantial probability an accident would occur, only that if an accident did occur, serious physical harm could result.Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010).R.A.sufferedserious injuries to her armwhile cleaning the conveyorwhile it was in operation.This fact alone is sufficient to establish the seriousness of the violation.

Based on the foregoing, the Court finds Complainant established a violation ofthe cited standard.Citation 1, Item 2.Citation 1, Item 2 shall be AFFIRMED.

B.Citation2,Item1

Complainant alleged an other-than-seriousviolation of the Act in Citation2,Item1as follows:

29 CFR1904.29:A log of all recordable work-related injuries and illnesses (OSHA Form 300 or equivalent), was not completed in detail as required by the regulation:

AnthonyMaranoCompany, Chicago, IL – On or about November 6, 2019, the employer failed to record the following workplace injuries in the detail required by the regulation on the OSHA 300 Log for calendar year 2018.8

SeeCitation and Notification of Penaltyat8.

Complainant allegesRespondent failedto complete the OSHA 300logs in sufficient detail as required by 29 C.F.R. § 1904.29(b)(1). Specifically, Complainantargues Respondent failed to includea description of“the object that directly injured the employee.”SeeCitation and Notification of Penalty at 8.Respondent contends its obligations extend no further than “aone or two linedescription for each recordable injury or illness”,because that is the specific language used in the cited standard.See29 C.F.R. § 1904.29(b)(1).Instead,Respondent argues itsatisfied itsobligationto recordthe specific details of the injuries in the 300logby recording that information on the OSHA301Injury and Illness Incidentreport.

According to the cited standard,“You must enter information about your business at the top of the OSHA 300 Log, enter aone or two linedescription for each recordable injury or illnessand summarize the information on the OSHA 300A at the end of the year.” 29 C.F.R. § 1904.29(b)(1). Section 1904.29(a) requires an employer to use an OSHA 300, OSHA 300A, and OSHA 301 forms or their functional equivalent.See29 C.F.R. § 1904.29(a).An “equivalent form”is “one that has the same information, is as readable and understandable, and is completed using the same instructions as the OSHA form it replaces.” 29 C.F.R. § 1904.29(b)(4).The OSHA 300 form specifically requires the following information: (1) injury or illness, (2) parts of body affected, and (3) the object or substance causing the injury or illness.Thus, whilethe plain language of the standardrequires an employer to include aone- to two-line descriptionof the injury,section 1904.29(a)indicateswhat the content of that one- to two-line description shouldinclude;namely, whatever theOSHA Form 300 requires, including the “object/substancethat directly injured or made the person ill.” (Ex. C-22).

As noted in the violation description, Respondent did notdescribethe object causing the injury. Instead, Respondent’s form only reported a general summary, such as“thumb contusion”,“low back strain”,and “right ankle contusion”. (Ex. C-22). This did not comply with the requirements of the standard. Thus, Complainant established a violation of the cited regulation.Citation 2, Item 1 is AFFIRMED.

V.Penalty

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 of the Act.See29 U.S.C. §§ 659(a), 666.The amount proposed, however, merely becomesadvisory when an employer timely contests the matter.Brennan v. OSHRC, 487 F.2d 438, 441–42 (8th Cir. 1973);RevoliConstr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001).Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section17]”, which it determinesde novo. 29 U.S.C. § 666(j);see alsoValdakCorp., 17 BNA OSHC 1135 (No. 93-0239, 1995).

“Regarding penalty, the Act requires that “due consideration” be given to the employer’s size, the gravity of the violation, the good faith of the employer, and any prior history of violations.”Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing29 U.S.C. § 666(j).These factors are not necessarily accorded equal weight.J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citation omitted).Rather, the Commission assigns the weight that is reasonable under the circumstances.Eric K. Ho,20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) (Consol.),aff'd sub nom.,Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005).It is the Secretary’s burden to introduce evidence bearing on the factors and explain how he arrived at the penalty he proposed.ValdakCorp., 17 BNA OSHC at 1138.The gravity of the violation is the ‘principal factor in a penalty determination.Assessing gravity involves considering: (1) the number of employees exposed to the hazard; (2) the duration of exposure; (3) whether any precautions have been taken against injury; (4) the degree of probability that an accident would occur; and (5) the likelihood of injury.See,e.g.,Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001),aff’d, 34 F. Appx. 152 (5th Cir. 2002) (unpublished).

Complainant proposed a $13,260 penalty for Citation 1, Item 2.The injuries suffered by R.A. illustrate the gravityof an injury resulting from a failure to implement LOTO procedures. Respondent relied ongeneral warnings and guards designed for normal production operationsand exposed virtuallyall ofitsrepackeremployees topinch- and nip-point hazards.Accordingly, the Court finds the penalty proposedby Complainant is appropriate.

Complainant proposed a $1895 penalty for Citation 2, Item 1.While Respondentfailed to comply with the standard, this failure was relatively minor. The OSHA 300 log was filled out;itonly had one piece of missing information, which, as noted by Respondent, was memorialized in the OSHA 301 incident form.Since this violation was of a technical nature and not a complete failureto document, the Court finds a penalty of $500 is appropriate.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1.Citation 1, Item 1 is AFFIRMED as serious, and penalty of $13,260 is ASSESSED.

2.Citation 1, Item 2 is AFFIRMED as serious, and a penalty of $13,260 is ASSESSED.

3.Citation 2, Item 1is AFFIRMED as other-than-serious, and a penalty of $500 is ASSESSED.

SOORDERED

/s/ Peggy S. BallPeggy S. BallJudge, OSHRC

Date:December 20, 2021

Denver, Colorado

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1 . Such a changeover couldincludechanging frombroccoli to carrots or from non-organic to organic foods. (Tr.597).

2 . Respondentquestionsthehazard imposed by a belt traveling at this speed.This issue will be dealt with in more detail in SectionIV.A.1.c. Notwithstanding that fact,the fact that an injury occurred is enough, in and of itself, to establish exposure to the hazard.

3 .In reality, it appears the primary difference isthechemical Respondent uses to clean the conveyor.

4 . The Court is awareevidence of subsequent remedial measures is not admissible; however, in this instance, where Respondent made representations about the condition of the conveyor at the time of the accidentthat were untrue, the Court is not relying on the evidence to establishanything more than thecondition of the conveyor at the time of the incident.

5 . Respondent suggests CSHO Cyprain’s credibility should also be questionedbased onstatements she purportedly took from the repackers during her investigation.While there are some minor inconsistencies, the Court finds the repackers’ explanation for being reluctant touse as an interpretersomeone they perceived asadverse to their interests makes sense, as well as the fact they may not remember the circumstances surrounding the incidentclearly considering theR.A. wasa close friend and relative.The Court finds any inconsistency between the purported statements andMaria’s testimony at trial is of little consequence to the resolution of this matter.First,Maria was not the individual who was injured;thus, her understanding of what happenedto R.A.wasspeculative. Second,whether R.A. was injured because of her sleeve being dragged into the conveyor or because of the rag she was using does not prevent a findingthat LOTO was required during the cleaning process, because causation is not an element of Complainant’s burden of proof.American Wrecking Corp.,19 BNA OSHC 1703, 1707 n.4 (No. 96-1330, 2001) (consolidated) (“Determining whether the standard was violated is not dependent on the cause of the accident.”), aff'd in part, rev'd in part, 351 F.3d 1254 (D.C. Cir. 2003).

6 . In fact, the Court placed very little reliance on the expert testimony from either side, as each expertwas apparently proffered to tell the Court how to apply the standards in this case, instead of providing expert technical knowledge to help the Court understand the inner workings of the conveyor at issue.The information provided by the lay witnesses was sufficient to establish the basic facts for the Court to apply.

7 . Although the standardspecifically states it does not apply tocord-and-plugequipment, italso limits that exception to equipment and situations where “the plug[is]under the exclusive control of the employee performing the servicing or maintenance.”29 C.F.R. § 1910.147(a)(2)(iii)(A).Even if the conveyor was powered byadrop cord, there was no policyrequiringnor anyobservable practicewherethe cord was under the exclusive control of the person performing the maintenance.

8 . Due to the number of specific instances identified,the Court will incorporate by reference the Citation and Notification of Penaltyto avoid reproduction of an entire page’s worth of incidents that are all connected by the same premise – the failure tocomplete Column F of the OSHA 300 Logwith the requisite detail.SeeCitation and Notification of Penalty at 8.