[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11537

Non-Argument Calendar

________________________

Agency No. 17-1376

PACKERS SANITATION SERVICES, INC., 

 Petitioner,

versus

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

ACTING SECRETARY OF LABOR,

 Respondents.

________________________

Petition for Review of a Final Order of the

Occupational Safety and Health Review Commission

________________________

(January 10, 2020)

Case: 19-11537 Date Filed: 01/10/2020 Page: 1 of 15 
2

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM: 

Packers Sanitation Services, Inc. petitions for review of a final order from 

the Occupational Safety and Health Review Commission finding the company 

liable for two serious violations and one other-than-serious violation of the 

Occupational Safety and Health Act of 1970.

1 29 U.S.C. §§ 651–678. An ALJ 

found the two serious violations after concluding that Packers was not maintaining

safe walking–working surfaces and that it had failed to adequately guard 

employees from a piece of dangerous machinery. See 29 C.F.R. § 1910.22(d)(1); 

§ 1910.212(a)(1). The ALJ found the non-serious violation for a failure to provide 

copies of requested business records within four business hours. See id.

§ 1904.40(a). Packers argues that substantial evidence did not support the ALJ’s 

findings and that the ALJ abused her discretion in making evidentiary rulings. We 

deny the petition for review.

1 A company cited under the Act may challenge the citation by seeking review before the 

Commission, which is independent of the Department of Labor. See 29 U.S.C. §§ 651(b)(3), 

659(a), 661. The citation will then be reviewed by an ALJ. Id. §§ 659(c), 661(j). If the 

Commission does not grant review within thirty days following the ALJ’s decision to affirm, 

modify, or vacate the citation, then that decision becomes the final order of the Commission. See

Roberts Sand Co., LLLP v. Sec’y of Labor, 568 F. App’x 758, 759 (11th Cir. 2014) (citing 29 

C.F.R. § 2200.90(d)).

Case: 19-11537 Date Filed: 01/10/2020 Page: 2 of 15 
3

I.

Packers provides sanitation services to poultry processing facilities. One of 

its clients is the Pilgrim’s Pride facility in Gainesville, Georgia. That location 

processes around one million chickens per week. After the Pilgrim’s Pride 

employees are done for the day, Packers employees work an evening shift cleaning 

the equipment.

During processing, each chicken is sent to a “picking room,” which contains 

a machine to remove the tail feathers from the chickens. That machine, known as a

quill puller, contains two rotating augers. To clean the quill puller, a sanitation 

employee first hoses down the machine to knock off larger pieces of detritus (a 

process called the “first knockdown”). After completing the first knockdown, the 

employee then moves to the second stage of the process, a more fine-tuned 

cleaning of the machine.

This case arises from an injury that a Packers employee suffered while 

conducting the first knockdown. On April 17, 2017, the employee began the first 

knockdown while the machine was still running. After the employee stepped in 

too close to the machine, the rotating augers caught the employee’s glove and 

pulled in his hand. The employee’s fingertip was amputated.

The Occupational Safety and Health Administration opened an investigation

into the accident. As part of the investigation, a compliance officer named Robin 

Case: 19-11537 Date Filed: 01/10/2020 Page: 3 of 15 
4

Bennett and an industrial hygienist named Maria Martinez went to the Pilgrim’s 

Pride plant eight days after the incident and met with representatives from Packers.

Those representatives included Caitlin Wilson, a safety manager who acted as a

Packers spokesperson. The representatives agreed that the OSHA officials could 

inspect the quill puller.

Wilson informed Bennett and Martinez that the injured employee had 

violated a workplace safety rule against putting your hand in a running machine 

and a rule requiring each employee to stay at least two feet away from an active

quill puller. The group went to inspect the machine. While walking over to the 

machine, Bennett noticed a series of drains in the floor that lacked adequate covers. 

Orange cones were set up near the drains to alert employees of the defective drain 

covers. The Packers managers began to step over the drains, but the OSHA 

officials requested that the group take another route. One manager informed 

Bennett that the drains had been in that condition for at least a year. Wilson told 

Bennett that she thought the drains were outside the scope of Bennett’s 

investigation; Bennett replied that the drains were in plain view.

At the end of the inspection, Bennett requested that Packers provide a listing

of workplace injuries and illnesses known as an OSHA 300 log. See 29 C.F.R. 

§ 1904.29. The copy that Packers eventually provided did not contain the incident 

that prompted the investigation.

Case: 19-11537 Date Filed: 01/10/2020 Page: 4 of 15 
5

Bennett recommended that the Secretary cite Packers for two serious 

violations: failing to maintain safe walking–working spaces and failing to 

appropriately guard the quill puller. See id. § 1910.22(d)(1) (walking–working 

surfaces); id. § 1910.212(a)(1) (failure to guard). Bennett also recommended that 

the Secretary cite Packers for one other-than-serious violation for failing to include 

the quill puller incident in their OSHA 300 log. The Secretary agreed and issued 

the citations.

Packers timely contested the citations, so the matter was referred to an ALJ 

for review. Before that review, the other-than-serious violation was amended after 

the company asserted that it properly logged the quill puller incident in its OSHA 

300 log on April 21, 2017—but that it failed to provide the most current version of 

that log when Bennett made her request on April 25. The amended citation stated

that by providing out-of-date records, Packers violated the requirement to provide 

appropriate records within four business hours. See id. § 1904.40(a) (requiring the 

company, upon request, to provide copies of “the records you keep under part 

1904”).

During discovery, OSHA asked Packers via interrogatory whether its 

position was that its employees were prohibited from cleaning the quill puller 

while it was operating (and asked that the company provide all facts and evidence 

supporting its answer). Packers responded that while its employees “generally” 

Case: 19-11537 Date Filed: 01/10/2020 Page: 5 of 15 
6

did not clean running equipment, if such cleaning were necessary then employees 

were supposed to “maintain a sufficient distance” from the equipment. The 

company’s response also referenced its lockout and tagout policy (which explains 

the process for turning off a machine and safely detaching it from any power 

source). The lockout policy stated that two feet from the point of operation was a 

“safe distance” for cleaning running equipment.

2

 

The parties proceeded to a hearing, at which a Packers employee testified 

that the injured employee was required under the lockout policy to lock out the 

machine before cleaning it. The Secretary objected to the testimony, claiming that 

Packers’ position constituted unfair surprise in light of Packers’ interrogatory

response—which had identified a two-foot safe distance rule for employees that 

cleaned running equipment. The ALJ overruled the objection. 

During the hearing, Packers made the argument that Bennett’s visit to 

Pilgrim’s Pride could not count as an inspection of a “workplace”—because none 

of Packers’ employees were actively working at the time of the inspection. 

Packers also objected to the walking–working surfaces citation, arguing that: 

(1) the orange cones eliminated the hazard; (2) there was no evidence that Packers 

2 OSHA has a standard that requires locking out certain pieces of dangerous equipment. See 

Sec’y, U.S. Dep’t of Labor v. Action Elec. Co., 868 F.3d 1324, 1328 (11th Cir. 2017) (the lockout 

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” (quoting 29 C.F.R. § 1910.147(a)(1)(i)). 

Case: 19-11537 Date Filed: 01/10/2020 Page: 6 of 15 
7

had knowledge of a hazardous condition; and (3) there was no evidence that any 

employees were exposed to the condition. Packers argued that they could not be 

held liable for the quill puller accident itself because the employee committed 

unpreventable misconduct by violating the lockout policy. Packers concluded by 

explaining that it did not believe that it should be found responsible for a failure to 

provide the appropriate incident log because it provided the log that was onsite and 

OSHA had not specifically requested “current” logs.

The ALJ affirmed each of the violations. In the ALJ’s written decision, she 

changed her prior ruling on the testimony regarding whether the lockout policy 

mandated locking out before cleaning the machine and struck it for unfairly 

surprising the Secretary. She otherwise found that Packers was responsible for 

each of the three violations. Because the Commission declined to review the 

decision, the ALJ’s decision became a final order of the Commission. 29 U.S.C. 

§ 661. Packers now appeals.

II.

“Commission decisions are entitled to considerable deference.” Quinlan v. 

Sec’y, U.S. Dep’t of Labor, 812 F.3d 832, 837 (11th Cir. 2016). We will uphold 

the Commission’s findings of fact so long as they are “supported by substantial 

evidence on the record considered as a whole.” Id. (quoting ComTran Grp., Inc. v. 

U.S. Dep’t of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013)). We will uphold the 

Case: 19-11537 Date Filed: 01/10/2020 Page: 7 of 15 
8

Commission’s legal conclusions so long as they are not “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with the law.” Id. (quoting 5 

U.S.C. § 706(2)(A)). Neither party disputes that we review the ALJ’s decision 

whether to admit or exclude evidence for abuse of discretion. Cf. Morro v. City of 

Birmingham, 117 F.3d 508, 513 (11th Cir. 1997) (district court’s evidentiary 

decisions are reviewed for abuse of discretion).

III.

We begin by addressing whether each of the citations resulted from an 

inspection of a “workplace.” The Secretary is authorized “to enter without delay 

and at reasonable times any factory, plant, establishment, construction site, or other 

area, workplace or environment where work is performed by an employee of an 

employer” to inspect and investigate. 29 U.S.C. § 657 (a)(1), (2). We agree with 

the ALJ that “nothing in the Act or OSHA case law requires employees to be 

actively working on a site at the time of an OSHA inspection for a location to be 

deemed a workplace of their employer.” Packers’ alternative interpretation—that 

the inspection needed to take place while Packers employees were actively 

working—ignores the statute’s clear statement that an inspection may take place 

“during regular working hours and at other reasonable times.” Id. § 657 (a)(2)

(emphasis added). And while Packers points out that Pilgrim’s Pride controlled the 

Case: 19-11537 Date Filed: 01/10/2020 Page: 8 of 15 
9

workplace before the Packers workers began their shift, the cited conditions did not 

change during the transition between the two workforces.

We next turn to each of the ALJ’s determinations that Packers violated an 

OSHA safety standard. The Secretary makes out a prima facie case that an OSHA 

standard was violated by showing “(1) that the regulation applied; (2) that it was 

violated; (3) that an employee was exposed to the hazard that was created; and 

importantly, (4) that the employer ‘knowingly disregarded’ the Act’s 

requirements.” ComTran Grp., Inc., 722 F.3d at 1307 (citation omitted). If “the 

Secretary shows that a supervisor had either actual or constructive knowledge of

the violation, such knowledge is generally imputed to the employer.” Id.

A.

We uphold the ALJ’s determination that Packers violated the OSHA 

standard for safe walking–working surfaces. Packers was required to ensure that

walking–working surfaces “inspected, regularly and as necessary, and maintained 

in a safe condition.” 29 C.F.R. § 1910.22(d)(1). Packers argues that the ALJ erred 

in finding that the company violated that regulation because there was no evidence 

that any employees were exposed to the hazard; because the orange cones 

alleviated the hazard; and because Packers lacked the ability to repair the drain 

covers (as the drains were owned by Pilgrim’s Pride). The evidence before the 

ALJ, however, included a statement from an employee that he had previously 

Case: 19-11537 Date Filed: 01/10/2020 Page: 9 of 15 
10

stepped over the drains while working. A Packers supervisor also explained that 

while the orange cones near the drains alerted employees to be cautious, there was 

no rule against stepping over the inadequately covered drains. That evidence 

suffices to support the conclusion that Packers’ employees were exposed to the 

hazard. The statement by the supervisor regarding the placement of cones near the 

hazards also suffices to impute knowledge of the hazard to the company. See id.

The fact that Packers does not itself own the drains does not eliminate its 

responsibility to provide its employees with a safe working space. See Cent. of 

Georgia R.R. Co. v. Occupational Safety & Health Review Comm’n, 576 F.2d 620, 

624 (5th Cir. 1978) (“[A]n employer may not contract out of its statutory 

responsibilities under OSHA.”).3

 We conclude that sufficient evidence supported

the ALJ’s findings underlying its conclusion that Packers violated the safe 

walking–working surfaces regulation.

B.

We also uphold the ALJ’s determination that Packers violated the machine 

guarding standard. Packers was required to provide “one or more methods of 

machine guarding” to “protect the operator” from hazards such as “ingoing nip 

points.” 29 C.F.R. § 1910.212(a)(1). The Commission has held that for the 

3 We have adopted as binding precedent all decisions of the former Fifth Circuit handed down 

prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en 

banc).

Case: 19-11537 Date Filed: 01/10/2020 Page: 10 of 15 
11

Secretary to establish that employees are exposed to a hazardous nip point, the 

Secretary must show “that it is reasonably predictable either by operational 

necessity or otherwise (including inadvertence), that employees have been, are, or 

will be in the zone of danger.” See Southern Hens, Inc. v. Occupational Safety & 

Health Review Comm’n, 930 F.3d 667, 679 (5th Cir. 2019) (quoting Fabricated 

Metal Prods. Inc., 18 BNA OSHC 1072 (No. 93-1853, 1997), 1997 WL 694096, at 

*3). Under that standard, which Packers agrees is the correct one, entry into the 

zone of danger must be “reasonably predictable,” not merely theoretical. See id. 

The “Commission has long held” that the machine guarding standard “requires 

physical guarding” and permits “guarding by distance only when physical guards 

or barriers are infeasible.” Id. (internal quotation mark omitted). Packers does not 

contend that physical guarding was infeasible.

The quill puller’s two augurs form an ingoing nip point. Sufficient evidence 

supported the ALJ’s finding that, due to operational necessity, it was reasonably 

predictable that an employee would enter the zone of danger near that nip point. 

The injured employee in this case was tasked with hosing down the quill puller to 

knock off larger pieces of debris. There was no external line or barrier marking a 

two-foot distance from the machine—the safe distance that Packers identified. Nor 

was there a hard physical barrier preventing the employee from accessing the nip 

Case: 19-11537 Date Filed: 01/10/2020 Page: 11 of 15 
12

point. As such, the ALJ was entitled to conclude that it was reasonably predictable 

that the employee would inadvertently veer too close to the nip point. 

Packers’ argument that the employee would have faced no danger had he 

observed the two-foot rule is likewise unsuccessful. To the extent that it seeks to 

blame the injured employee for failing to follow that rule, Packers misses the mark. 

The machine guarding standard would mean little if a company could escape 

responsibility merely by reminding its employees to stay a safe distance from 

dangerous machines. After all, “common human errors such as neglect, 

distraction, inattention or inadvertence,” which might cause an employee to enter 

the zone of danger, are part of the basis for the standards in the first place. See id.

at 677 (citation omitted) (internal quotation marks omitted).

Packers argues that it is nevertheless entitled to the affirmative defense of 

unpreventable employee misconduct because the injured employee violated a 

mandatory rule that the machine should be locked out and inoperative before it was 

cleaned. Resolving this issue requires considering the ALJ’s decision to strike 

Packers’ testimony at the hearing that any such rule existed. We conclude that the 

ALJ did not abuse its discretion in excluding the testimony. Packers’ response to 

the Secretary’s clearly worded interrogatory indicated a “general” preference that 

machines not be cleaned while in operation—but that if they were, then employees 

Case: 19-11537 Date Filed: 01/10/2020 Page: 12 of 15 
13

should remain two feet clear from the machine.4 The clear implication of Packers’ 

response was that the company did not have an absolute prohibition against 

cleaning machines in operation. Packers’ new testimony regarding the lockout 

policy at the hearing, however, indicated that there was such a prohibition. It was 

not an abuse of discretion for the ALJ to exclude that testimony—which 

effectively reversed Packers’ interrogatory answer—due to the unfair surprise it 

worked upon the Secretary.5

 Cf. Weeks v. Remington Arms Co., 733 F.2d 1485, 

1491 n.11 (11th Cir. 1984) (explaining that evidence may excluded under Rule 403 

where it would create unfair surprise).

Absent an appropriate rule, Packers cannot make out the defense of 

unpreventable employee misconduct. To establish that affirmative defense, an 

employer must show that it “1) has established work rules designed to prevent the 

violation, 2) has adequately communicated these rules to its employees, 3) has 

taken steps to discover violations, and 4) has effectively enforced the rules when 

violations have been discovered.” Southern Hens, Inc., 930 F.3d at 678 (citation 

omitted). Evaluating whether an employer has established this defense will often 

overlap with the merits inquiry of a violation—as it does here. See id. Without the 

4 While Packers’ response to the interrogatory provided the lockout policy as a relevant 

document, the policy itself did not clearly explain whether lockout occurred before the first 

knockdown or before the second, fine-tuned cleaning.

5 Nor was it error for the ALJ to consider testimony from Packers’ expert that it eventually 

excluded as evidence for the separate purpose of determining whether the Secretary was given 

adequate notice of Packers’ defense. See 5 U.S.C. § 556(e).

Case: 19-11537 Date Filed: 01/10/2020 Page: 13 of 15 
14

stricken testimony, Packers is left arguing that the injured employee violated the 

proximity rule. But the relevant inquiry is whether the employee caused the 

violation—not whether the employee could have avoided injury despite the

employer’s violation. See id. (“The departure from OSHA standards, not the 

worker’s injury, is the violation.”). 

The only remaining issue as to the machine guarding standard, then, is 

whether Packers was aware of the dangerous condition. The ALJ had sufficient 

evidence to conclude that the company was aware of the hazard. Supervisors 

walked past the quill puller regularly and could easily see that it lacked the 

necessary physical guards. Sufficient evidence supported the ALJ’s findings 

underlying its conclusion that Packers violated the machine guarding standard.

C.

Finally, we affirm the ALJ’s determination that Packers committed an otherthan-serious violation of 29 C.F.R. § 1904.40(a), a regulation which requires 

employers to provide OSHA with copies of the records they “keep under part 

1904” within four business hours if OSHA requests them. Packers’ argument that 

they were only required to produce the records that were onsite at the time of the 

request conflicts with the regulatory scheme, as the very next section of the 

regulation explains how a company may calculate its deadline to produce the 

records if it keeps them in another time zone. See id. § 1904.40(b)(2). And while 

Case: 19-11537 Date Filed: 01/10/2020 Page: 14 of 15 
15

Packers suggests that OSHA did not specifically use the word “current” when it 

requested the records, the basic requirement that a company update its log after an 

accident means that any request for the records kept “under part 1904” is a request 

for current records.

PETITION DENIED.

Case: 19-11537 Date Filed: 01/10/2020 Page: 15 of 15