IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60436

SOUTHERN HENS, INCORPORATED, 

 Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; R. 

ALEXANDER ACOSTA, SECRETARY, DEPARTMENT OF LABOR, 

 Respondents

Petition for Review of an Order of the 

Occupational Safety and Health Review Commission

Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

A worker at a poultry processing plant operated by Southern Hens, 

Incorporated suffered a serious injury when her hand got caught in a machine’s 

moving parts. Southern Hens reported the injury to the Occupational Safety 

and Health Administration, which conducted an inspection of the plant and 

then cited Southern Hens for violations of occupational safety standards. After 

an evidentiary hearing, an administrative law judge found violations of two 

standards, declined to find a violation of a third standard, and imposed a 

monetary penalty. Southern Hens petitioned for review, and we deny the 

petition.

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2019

Lyle W. Cayce

Clerk

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I

A

Southern Hens operates a plant with roughly 700 employees in Moselle, 

Mississippi, just north of Hattiesburg. During day shifts at the plant, 

employees process poultry, while the night shift is devoted to cleaning the plant 

and its machines. Sheila Norman started working at Southern Hens on June 

21, 2016, and was assigned to the night shift, during which she would clean a 

machine called the Short Weight Tumbler. Southern Hens describes this 

machine rather vividly as follows: “A ‘Short Weight Tumbler’ is a machine that 

moves meat pieces around so that they knock against each other and the sides 

of the tumbler. The abrasion loosens problem strands in the meat allowing fat 

in the muscle fibers to absorb liquid.” The Secretary of Labor, defending the 

ruling of the administrative law judge in this appeal, gives this description: 

“During the processing, chicken parts are placed in a machine called a Tumbler 

where a drum spins rapidly to remove moisture from the chicken. The drum is 

large enough for an employee to enter it through the front of the Tumbler.”

Cleaning the Tumbler was Norman’s regular assignment, and she 

cleaned the machine four or five nights a week. Norman would first open 

“doors” on the Tumbler that guarded its moving parts. She would then turn 

the machine on, so that she could hose it down while the machine was moving. 

She would apply foaming chemicals to the outside of the machine and then 

scrub the outside by hand with a scrubbing pad. The Secretary says that this 

brought her hand within seven inches of the Tumbler’s “drive mechanism.”

Norman would then turn off the machine, lock it out to prevent it starting up 

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unexpectedly,1 and climb into the drum to scrub it from the inside. Afterwards, 

she would turn the machine back on to hose it down one last time.

On August 4, 2016, Norman had applied foaming chemicals to the 

Tumbler with the machine running and had climbed a ladder to reach the 

higher parts of the machine. She was scrubbing the outside of it when her glove 

became caught in the drive mechanism. Once she got her hand free and 

removed the glove, she saw that her thumb had been, as the ALJ put it, 

“partially amputated.” Norman ran to her manager, Greg Webb, with whom 

she waited for the Safety Coordinator, Matt Lee, who then took her to the 

hospital. Norman seems to have missed work for several months thereafter.2

B

Southern Hens reported Norman’s injury to the Occupational Safety and 

Health Administration (OSHA), which opened an investigation conducted by

Compliance Safety and Health Officer David Young. He reviewed documents, 

interviewed personnel, and did a walkthrough of Plant No. 3 at Southern Hens’ 

Moselle facility, which contained the Tumbler. 

Young’s investigation went beyond Norman’s injury. During his 

walkthrough, Young passed by two parallel conveyors that fed chicken parts 

into a chiller to be frozen. Young observed a Southern Hens employee, Dmitri 

Hunt, clearing a jam on one of the conveyors. Hunt at first was using a “metal 

rake-like tool” to clear the jam but then resorted to using his hands. In the 

process, his hands came within a few inches of a “pinch point” below the 

 

1 OSHA regulations define a “lockout device” as a “device that utilizes a positive means 

such as a lock . . . to hold an energy isolating device in a safe position and prevent the 

energizing of a machine or equipment.” 29 C.F.R. § 1910.147(b). An “energy isolating device,” 

in turn, is a “mechanical device that physically prevents the transmission or release of 

energy,” for instance, a “manually operated electrical circuit breaker” or a “disconnect 

switch,” among other possibilities. Id. 

2 In January 2017, after Norman returned to work, Southern Hens disciplined her for 

not locking out the Tumbler, but she disagreed that the injury was her fault.

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conveyor. Young noted that the conveyor being cleared by Hunt lacked a 

protective guard over the pinch point, whereas the parallel conveyor nearby 

was guarded. Hunt explained to Young that he had been working at Southern 

Hens for three weeks, and in that time, jams were frequent. He often used his 

hands because the metal tool was too heavy for continuous use.

Following the inspection, Young recommended three serious citation 

items. The first two arose from Norman’s injury and concerned Southern Hens’ 

compliance with lockout-tagout regulations: 29 C.F.R. § 1910.147(c)(4), 

requiring companies to maintain detailed procedures for locking or tagging out 

equipment; and § 1910.147(d)(4)(i), requiring a lock or tag to be affixed to 

machines during servicing or cleaning. The third arose from observing Hunt 

clearing the conveyor jam with his hands and concerned compliance with a 

machine-guarding standard: 29 C.F.R. § 1910.212(a)(1), requiring guards on 

machines that pose hazards from “ingoing nip points,” among other features.

C

Southern Hens contested the citation items, leading to a one-day 

evidentiary hearing in October 2017 before an administrative law judge in 

Jackson, Mississippi. Three witnesses testified: Norman, the injured employee; 

Young, the OSHA compliance officer; and Lee, Southern Hens’ safety 

coordinator. Webb, Norman’s manager, did not testify.

As to Norman’s injury, much of the hearing focused on the training that 

Southern Hens provided on lockout-tagout concepts and procedures. Norman 

testified that she received general lockout-tagout training when she started

work, including a video that showed the risk of injury from machines that move 

or turn on unexpectedly. The video was not specific to the Tumbler. According 

to Norman, Webb told her she would be trained by another Southern Hens 

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employee, “Jesse,”3 “because this used to be his job . . . whatever he shows you, 

that’s what you do and how you do it.” Jesse had cleaned the Tumbler before 

Norman received the assignment, and Norman related the following guidance 

from Jesse on the appropriate time to lock out the Tumbler:

I had to climb on the inside of [the Tumbler], you know, and bend 

down and spray down. He was teaching me how to do that. And he 

was, like, you gotta go on the inside of it, you know. That’s when 

you go get the lock and you lock it out. And he was, like, get a 

ladder and you climb on the inside of it and you lock it out, and 

then you get on the inside.

Norman testified that she was never shown written lockout-tagout procedures 

for the Tumbler or given training specific to the machine beyond what Jesse 

provided. She also said that Webb, her manager, added little to Jesse’s 

training, even though he regularly passed by while she was working. She 

received no specific guidance from Webb on when to lock out the Tumbler.

Norman did receive a notable instruction from Webb on one occasion. 

One day, Norman was preparing to foam the Tumbler, the step that preceded 

scrubbing it by hand, and had turned off the machine. “Greg [Webb] walked in 

and was like, ‘Jesse, you didn’t tell her that the machine is supposed to be on

. . . while she is foaming it down?’”

In response, Southern Hens focused on the general safety training given 

to Norman, on regular safety meetings at which lockout-tagout was on the 

agenda, and on a set of general safety rules. Those rules included the following 

broad statements: “Keep hands off moving machinery.”; “Be sure you are using 

the proper equipment, chemical or material for the job. If unsure, ask your 

immediate supervisor.”; and “Keep clear of all belts, chains, and moving lines.”

 

3 This individual was not identified in the record. The transcript of the hearing spelled 

his name “Jesse,” the ALJ spelled it “Jessie,” and the Secretary’s brief uses both. Testimony 

indicated this individual is male, so we use “Jesse.”

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Young’s testimony was mainly not about Norman, but Southern Hens 

used its cross-examination to establish that Young did not cite the company for 

failing to train Norman on lockout procedures.4 Southern Hens also drew 

attention to the fact that it had disciplined Norman after the incident, but 

Young retorted that the company should have dealt with the issue before 

Norman’s injury. Young pointed out that a similar injury on the Tumbler in 

December 2015 had caused another worker to miss 70 days of work.

Safety Coordinator Matt Lee explained the company’s process for 

training new employees such as Norman: training on general rules; video 

training on lockout-tagout concepts; and then specific training on equipment 

from “their supervisor or a trainer in that area.” Southern Hens used Lee to 

introduce an incident report that Jamie Gibbs, another supervisor, completed 

immediately after Norman’s injury. Gibbs recorded Norman saying that she 

was distracted and should not have come to work due to problems at home. Lee 

also testified about Southern Hens’ practices of disciplining employees and 

conducting unannounced safety audits, but cross-examination established, 

among other points, that Lee had no record of doing a safety audit while 

Norman was on the Tumbler.

The machine-guarding issue took up most of Young’s testimony. Young 

related seeing the two parallel conveyor lines, one guarded and one not; Dmitri 

Hunt “working very fast . . . to unclog a[n] area” on the unguarded line; and 

Hunt using his hands rather than the metal tool to clear the jam. As Hunt did 

so, his fingers were “1-to-2 inches” from an opening at the bottom of the 

conveyor “approximately half [an] inch” in size, which Young described as “a 

place to get caught in, a pinch point.” Young also discussed an “Employee 

 

4 See 29 C.F.R. § 1910.147(c)(7) (requiring employers to train employees on “energy 

control” concepts and skills).

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Questionnaire,” which he filled out with Hunt’s input and assent. Hunt said 

that he had been at Southern Hens three weeks; that he “use[d] [his] hand to 

do this all day”; and that he did not use the metal tool because “it gets heavy.” 

Finally, Young related a statement from Scott French, a manager at Southern 

Hens, who acknowledged the jamming issues in this part of the plant.

In a comprehensive reasoned decision, the ALJ affirmed two of the three 

citations recommended by Young.5 She rejected the first recommended lockouttagout violation, concerning the requirements for written procedures under 29 

C.F.R. § 1910.147(c)(4)(ii)(B). That regulation “is concerned with the ‘how’ of 

the lockout procedures, not the ‘when,’” and Southern Hens’ procedure for the 

Tumbler was adequate in that regard. By contrast, the ALJ found that 

Southern Hens had violated 29 C.F.R. § 1910.147(d)(4)(i), which requires a 

lockout device to be affixed during servicing or cleaning, because the Tumbler 

was not locked out for the cleaning process that resulted in Norman’s injury.

The ALJ rejected Southern Hens’ affirmative defense that Norman’s injury 

resulted from “unpreventable employee misconduct.” The ALJ also found that 

Southern Hens had violated 29 C.F.R. § 1910.212(a)(1) by not guarding the 

pinch point on the conveyor worked by Hunt. Finally, she deemed both 

violations “serious,” owing mainly to the gravity of the injuries that could (and, 

in Norman’s case, did) result. Consequently, she penalized Southern Hens 

$7,000 for the lockout-tagout violation and $5,000 for the machine-guarding 

violation.

 

5 This decision rested on the ALJ’s findings that Norman was credible and that 

Southern Hens had put forward little that rebutted her testimony: “I found the injured 

employee’s testimony credible. She did not appear practiced or rehearsed. Although she was 

occasionally confused by the wording of some questions, her demeanor when testifying 

evinced an earnest attempt to provide an honest answer. Her testimony on cross examination 

was consistent with that on direct. Little of her testimony was rebutted. Neither Jessie nor 

Manager Webb were [sic] called to testify.” 

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Southern Hens timely sought review from the Occupational Safety and 

Health Review Commission. The Commission declined discretionary review, so 

the ALJ’s decision became a “final order of the Commission.”6 Southern Hens 

timely petitioned this court for review.

II

This court must accept findings of fact by the Commission as “conclusive” 

if they are supported by “substantial evidence on the record considered as a 

whole.” 29 U.S.C. § 660(a); Sanderson Farms, Inc. v. Perez, 811 F.3d 730, 734 

(5th Cir. 2016). The court must “uphold factual findings if a reasonable person 

could have found what the Commission found, even if the appellate court might 

have reached a different conclusion.” Sanderson Farms, 811 F.3d at 734.

(quotation omitted). The court reviews legal conclusions to determine whether 

they are “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A); Sanderson Farms, 811 F.3d at 735; 

Trinity Marine Nashville, Inc. v. O.S.H.R.C., 275 F.3d 423, 427 (5th Cir. 2001). 

The same standards apply to review of ALJ decisions that the Commission 

declines to review as to decisions of the Commission itself. Austin Indus. 

Specialty Servs., L.P. v. O.S.H.R.C., 765 F.3d 434, 438–39 (5th Cir. 2014) (per 

curiam).

III

The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., 

is meant “to assure so far as possible every working man and woman in the 

 

6 See 29 U.S.C. § 661(j) (“The report of the administrative law judge shall become the 

final order of the Commission within thirty days after such report by the administrative law 

judge, unless within such period any Commission member has directed that such report shall 

be reviewed by the Commission.”).

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Nation safe and healthful working conditions.” Id. § 651(b). The Act imposes a 

general duty on employers to furnish employees a workplace “free from 

recognized hazards that are causing or are likely to cause death or serious 

physical harm.” Id. § 654(a)(1). It also authorizes the Secretary of Labor to 

promulgate occupational safety and health standards. Id. § 655(a). The Act 

assigns enforcement and rulemaking authority to the Secretary, while 

assigning adjudicative authority to the Commission, an independent agency. 

Martin v. O.S.H.R.C., 499 U.S. 144, 151 (1991). 

Despite its lofty goals, the Act did not create a strict liability regime. 

Under the Act, the employer is not made into “an insurer” of its employees. 

Horne Plumbing & Heating Co. v. O.S.H.R.C., 528 F.2d 564, 570 (5th Cir. 

1976). Rather, “the Act seeks to require employers to protect against 

preventable and foreseeable dangers to employees in the workplace.” W.G. 

Yates & Sons Constr. Co. v. O.S.H.R.C., 459 F.3d 604, 607 (5th Cir. 2006).

To establish an employer has violated a regulation, the Secretary has the 

burden to prove (1) “that the cited standard applies”; (2) that the employer has 

not complied with the cited standard; (3) that employees have “access or 

exposure to the violative conditions”; and (4) “that the employer had actual or 

constructive knowledge of the conditions,” i.e., that it actually knew of the 

conditions or, with the exercise of reasonable diligence, should have known. 

Sanderson Farms, 811 F.3d at 735. 

A violation may be characterized as “willful,” “serious,” or “not serious,”

which shapes the penalty possibilities. See 29 U.S.C. § 666. A “serious” 

violation exists “if there is a substantial probability that death or serious 

physical harm could result” from a condition or practice, “unless the employer 

did not, and could not with the exercise of reasonable diligence, know of the 

presence of the violation.” Id. § 666(k). 

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IV

Southern Hens challenges the lockout-tagout violation on the grounds 

that it lacked knowledge of the violative condition and that Norman’s injury 

resulted from misconduct that the company could not prevent. Southern Hens 

argues against the machine-guarding violation on the grounds that employees 

were not exposed to a violative condition, that it lacked knowledge of the 

violative condition, and perhaps also that the condition was not actually 

violative. Southern Hens adds that the machine-guarding violation, if upheld, 

should not be deemed serious. Finally, Southern Hens contests the ALJ’s 

penalty determination on the ground that the Secretary impermissibly 

requested a penalty exceeding the statutory maximum. We reject each 

challenge.

A

The ALJ penalized Southern Hens for violating the lockout-tagout 

standard at 29 C.F.R. § 1910.147(d)(4). Section 147 “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.” Id. § 1910.147(a)(1). Subsection (c) contains 

requirements for employers’ lockout-tagout safety programs, including the 

documentation of procedures and the training of employees.7 Subsection (d), in 

turn, specifies the sequence in which lockout or tagout control should be 

applied to a given machine: (1) preparing for shutdown; (2) shutting down the 

machine; (3) isolating the machine from its energy source; (4) affixing a lockout 

or tagout device; (5) dealing with stored or residual energy while the machine 

is locked or tagged out; and (6) verifying the machine is locked or tagged out. 

 

7 This is the subsection on which the violation rejected by the ALJ was based.

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The ALJ penalized Southern Hens for (4), because a lockout device was not 

affixed to the Tumbler at the time of Norman’s injury but should have been.

The Secretary and Southern Hens agree that § 1910.147(d)(4) applies to 

the process of cleaning the Tumbler, that the standard was violated here, and 

that Norman was exposed to the violative condition. Their dispute focuses on 

whether Southern Hens had actual or constructive knowledge of the violation. 

The Secretary argued below and the ALJ agreed that Southern Hens had 

constructive knowledge. The ALJ found that, if Southern Hens were exercising 

reasonable diligence, it should have learned that Norman was not locking out 

the Tumbler while scrubbing the outside of the machine by hand. The ALJ

noted that Norman cleaned the Tumbler the same way every night by the 

method a co-worker instructed her to follow and that Webb, her manager, had 

many chances to see her on his regular trips through the Tumbler area. The 

ALJ also observed that none of Southern Hens’ training materials would have 

taught Norman specifically to lock out the Tumbler before scrubbing the 

outside. Finally, the ALJ rejected Southern Hens’ suggestion that Norman’s 

injury happened because she was distracted by personal problems. The ALJ 

found the evidence of her distraction, mostly statements she purportedly made 

immediately after her injury, “lack[ed] reliability” because the circumstances 

were “hectic” and Norman was going into shock. The ALJ also reasoned that, 

to the extent Norman was distracted in the moment, “this is exactly the type 

of hazard from which compliance with the lockout standard would have 

protected her.”

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. E. Tex. Motor Freight, Inc. v. 

O.S.H.R.C., 671 F.2d 845, 849 (5th Cir. 1982) (per curiam). We have dealt with 

employer knowledge as a fact-specific, practical inquiry, looking to company 

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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. See, e.g., Sanderson Farms, 811 F.3d at 736–

37; MICA Corp. v. O.S.H.R.C., 295 F.3d 447, 450–51 (5th Cir. 2002) (per 

curiam); Byrd Telcom, Inc. v. O.S.H.R.C., 657 F. App’x 312, 315–16 (5th Cir. 

2016).

Substantial evidence supports the ALJ’s determination that Southern 

Hens had constructive knowledge. Matt Lee testified that it was company 

practice for new employees to receive equipment-specific training from

employees already working in the same area. In keeping with that approach, 

Norman’s training on the Tumbler was by way of another employee, whose 

only guidance was that she should lock out the Tumbler before climbing into 

its drum. Norman was never instructed to lock out the machine before 

scrubbing the outside, which was the phase of the cleaning process that led to 

her injury. Southern Hens does not rebut this point.

Other unrebutted testimony by Norman substantiates the ALJ’s 

decision. Her supervisor, Webb, regularly passed by the Tumbler while she 

cleaned it. Also, on one occasion, Webb saw Norman foaming the outside of the 

machine and questioned why the machine was turned off. This phase of 

cleaning immediately preceded scrubbing the outside, so this shows Webb was 

in a position to observe Norman’s work closely. Webb’s proximity indicates 

that, had he been reasonably diligent, he should have noticed that Norman was 

scrubbing the outside of the machine without locking it out.

Southern Hens’ arguments do not dislodge the substantial evidence 

supporting the ALJ’s holding. Its references to general safety rules and lockout 

training fail to persuade, because none specifically addressed the Tumbler. It 

is insignificant that the company’s written procedures were held to comply 

with 29 C.F.R. § 1910.147(c)(4), because these procedures said nothing about 

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when to lock out the Tumbler during cleaning. It is also insignificant that 

OSHA did not cite Southern Hens for failure to train Norman. Under 

Commission precedent, “failure to issue a citation does not establish that the 

Secretary considers the employer to be in compliance.” Safeway Store No. 914, 

16 BNA OSHC 1504 (No. 91-373, 1993), 1993 WL 522458, at *5.

Finally, there is Southern Hens’ suggestion that Norman was distracted 

by personal problems on the day in question.8 To ascribe any significance to 

Norman’s possible distraction, one would have to think that Southern Hens’ 

general rules and training were adequate, such that an employee in an 

unperturbed state of mind could have done her work safely. The ALJ concluded 

that the fact of Norman’s distraction was not established and that the 

company’s general safety rules were not exculpatory, for the sound reasons

already discussed. 

There is a deeper problem with giving weight to Norman’s distraction. 

Occupational safety regulations exist because people are distractible. 

Functioning with less than perfect focus and control is our ordinary condition. 

OSHA standards serve to protect workers from “common human errors such 

as ‘neglect, distraction, inattention or inadvertence.’” Matsu Ala., Inc., 25 BNA 

OSHC 1952 (No. 13-1713, 2015) (ALJ), 2015 WL 6941348, at *21 (quoting 

Slyter Chair, Inc., 4 BNA OSHC 1110, 1112 (No. 1263, 1976)). The standards 

“implicitly recognize[] that human characteristics such as skill, intelligence, 

carelessness, and fatigue, along with many other qualities play a part in an 

individual’s job performance.” Id. (quoting B.C. Crocker, 4 BNA OSHC 1775, 

 

8 The Secretary has no argument on this point, because Southern Hens did not really 

advance it as an argument until its reply brief. “Ordinarily, arguments raised for the first 

time in a reply brief are waived.” See Flex Frac Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205,

208 (5th Cir. 2014). But the issue appeared in Southern Hens’ initial statement of fact, and 

so we address it for the sake of thoroughness.

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1777 (No. 4387, 1976)). Thus, to note our weaknesses and vulnerabilities, as 

Southern Hens does of Norman, is to make the case for enforcing occupational

safety regulations.

That said, we do excuse employers from liability when they establish the 

affirmative defense of “unpreventable employee misconduct” (UEM), which 

Southern Hens asserts here. The 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.” W.G. Yates & Sons, 459 F.3d at 609 n.7. The UEM defense is not 

expressly stated in any statute or regulation. Rather, it stems from the scope 

of the Act’s prohibitions, which reach only those harms that are preventable.9

Consequently, the UEM inquiry often overlaps considerably with the main 

violation inquiry. See, e.g., N. Dall. Acrylic & Stucco, Inc., 51 F. App’x 930 (5th 

Cir. 2002) (per curiam). Much that has already been said will be relevant again.

The ALJ rejected the UEM defense because Southern Hens did not have 

an established work rule that, if followed, would have prevented Norman’s 

injury. The ALJ considered Southern Hens’ rule to “Keep hands off moving 

machinery” inapposite, reasoning that the violation was the failure to lock out 

the Tumbler, so a rule against placing one’s hand on moving machinery would 

not have prevented it. The ALJ rejected the company’s written procedures, 

training materials, and other safety rules because, as already noted, none said 

when to lock out the Tumbler for cleaning. For similar reasons, the ALJ 

rejected the idea that Southern Hens had adequately communicated proper 

 

9 Given the less-specific source of the UEM defense, unsurprisingly circuit courts have 

devised varying formulations. See N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 

106–07 (2nd Cir. 1996) (comparing cases).

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safety rules to Norman. With Southern Hens failing on the first two elements 

of the UEM defense, the ALJ did not expressly consider the third and fourth 

elements.

Southern Hens insists it did have an established work rule qualifying it 

for the UEM defense. Southern Hens appears to mean the combination of its 

written procedure for locking out the Tumbler and its general “hands off” rule

for moving machinery. Southern Hens’ argument is that Norman should have 

put two and two together: “If [Norman] had followed the rule to not put her 

hands on the moving tumbler, but still needed to complete her job of cleaning 

the tumbler, she would necessarily have to lock out the machine.” 

Substantial evidence again supports the ALJ’s determination, and 

Southern Hens’ arguments fail. Under Commission precedent, a work rule is 

“an employer directive that requires or prescribes certain conduct,” rather than 

a general hortatory statement. J.K. Butler Builders, Inc., 5 BNA OSHC 1075

(No. 12354, 1977), 1977 WL 35868, at *2 (rejecting guidance to avoid “unsafe 

areas” as an established work rule); see also S & G Packaging Co., 19 BNA 

OSHC 1503 (No. 98-1107, 2001), 2001 WL 881250, at *4 (rejecting “Keep hands 

and feet away from moving machinery” and “Do not put your hands in any 

piece of moving machinery”). We have likewise insisted on work rules that 

specifically match the violation at issue. See Byrd Telcom, 657 F. App’x at 316. 

Southern Hens’ general “hands off” rule does not suffice. 

Moreover, in relying on its “hands off” rule, Southern Hens mistakes the 

nature of the violation. The departure from OSHA standards, not the worker’s 

injury, is the violation. See Calpine Corp. v. O.S.H.R.C., --- F. App’x ----, 2019 

WL 2387637, at *5 (5th Cir. June 5, 2019) (per curiam); Sanderson Farms, Inc. 

v. O.S.H.R.C., 348 F. App’x 53, 57 (5th Cir. 2009) (per curiam). The lack of a 

lockout device on the Tumbler was the violation here. That Norman might have 

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avoided injury by keeping her hands off the machine––never mind that her job 

was to scrub it by hand––does not negate the violation.10

Because Southern Hens lacked the sort of established work rule required 

for the UEM defense, we uphold the ALJ as to the lockout violation.

B

The ALJ also penalized Southern Hens for violating the machineguarding standard at 29 C.F.R. § 1910.212(a)(1), which provides that “[o]ne or 

more methods of machine guarding shall be provided to protect the operator 

and other employees in the machine area from hazards such as those created 

by point of operation, ingoing nip points, rotating parts, flying chips and 

sparks.” If “handtools for placing and removing material” are used, they “shall 

be such as to permit easy handling of material without the operator placing a 

hand in the danger zone.” Id. § 1910.212(a)(3)(iii). “Such tools shall not be in 

lieu of other guarding required by this section, but can only be used to 

supplement protection provided.” Id.

The ALJ found that the standard was violated because the conveyor at 

issue had an “ingoing nip point” with “no physical guard covering it.” She cited 

Commission precedent holding that the standard requires physical guarding 

of hazards. See B.C. Crocker, 1976 WL 6125, at *2. She therefore rejected 

Southern Hens’ argument that the provision of a handheld tool avoided a 

violation. 

The ALJ also found that employees were exposed to the hazard. She 

applied the following standard for exposure from the Commission’s Fabricated 

Metal Products decision: 

 

10 OSHA violations can occur without any employee injury, because “safety regulations 

are preventative, not reactionary and the absence of injury is not evidence of the absence of 

danger.” Sanderson Farms, 811 F.3d at 737.

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[I]n order for the Secretary to establish employee exposure to a 

hazard she must show that it is reasonably predictable either by 

operational necessity or otherwise (including inadvertence), that 

employees have been, are, or will be in the zone of danger. We 

emphasize that . . . the inquiry is not simply into whether exposure 

is theoretically possible. Rather, the question is whether employee 

entry into the danger zone is reasonably predictable.

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

WL 694096, at *3 (footnotes omitted). The ALJ found that employees were in 

the “zone of danger” based on Young’s testimony that he saw Dmitri Hunt’s 

hand within an inch or two of the nip point. She found this reasonably 

predictable because, as Southern Hens knew, jams occurred frequently and it 

was Hunt’s role to clear them. She rejected Southern Hens’ argument that its 

provision of the hand tool avoided employee exposure because an employee’s 

hands, while using the tool, would still be “in proximity” to the ingoing nip 

point. 

The ALJ also found that Southern Hens had constructive knowledge of 

the violation. The lack of a physical guard on the conveyor could be easily 

observed by anyone passing by, all the more so because the adjoining, identical 

conveyor had such a guard. She noted Scott French’s recognition of jamming 

problems, which Young related in his testimony. The ALJ also pointed out that 

provision of a tool implies recognition of the risk inherent when the work is not 

done with a tool. Finally, the ALJ deemed this a serious violation because the 

ingoing nip point was “large enough for an employee’s finger” and, if one were 

drawn in by the conveyor’s movement, “such an event could result in 

amputation.”

Substantial evidence supports these determinations, and Southern 

Hens’ arguments against them fail. Southern Hens argues that there was no 

violation here because employees were not exposed to a hazard. The company 

says that, under Commission precedent, the exposure inquiry should be done 

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with reference to “the manner in which the machine functions and the way it 

is operated,” emphasizing this last clause.11 Because Southern Hens furnished 

Hunt a tool to clear jams from the conveyor, the company contends that the 

conveyor operated in a way that did not actually expose him or other employees 

to harm. It points to the ALJ’s statement that use of the tool made the 

likelihood of injury more “remote.”

Along similar lines, Southern Hens appears to contend that no violative 

condition was even present, arguing that OSHA rules permit “guarding by 

distance” and provision of the hand tool was a permissible use of that strategy.

It cites an OSHA guidance document saying that machines into which product 

is fed “can be safeguarded by distance if the operators maintain a safe distance 

between their hands and the point of operation.” See Occupational Safety &

Health Admin., Safeguarding Equipment and Protecting Workers from 

Amputations, OSHA 3170 (2001).12 As to knowledge, Southern Hens argues 

that Hunt was trained to use the hand tool. Because Hunt knew to use the tool

and knew not to use his hands, it could not be said that Southern Hens had 

constructive knowledge of the violation.

Southern Hens’ arguments blur the lines between the standard’s 

requirements and the degree of exposure its employees must face for a violation 

to occur. As the ALJ said, the Commission has long held that § 1910.212 

“requires physical guarding.” See B.C. Crocker, 1976 WL 6125, at *2. It permits 

“guarding by distance” only when physical guards or barriers are infeasible. 

TMD Staffing, 2018 CCH OSHD ¶ 33,676 (No. 17-0560, 2018), 2018 WL 

3695715, at *9 (“[S]afeguarding by maintaining a safe distance from the point 

 

11 See Lewis County Dairy Corp., No. 03-1533 (OSHRC Aug. 14, 2006), 2006 WL 

3247249, at *5.

12 Accessible at https://www.osha.gov/Publications/OSHA3170/osha3170.html.

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of operation may be acceptable but only when safeguarding by physical barrier 

or physical devices is not feasible.”) (emphasis in original). Southern Hens 

has not shown a physical guard would be infeasible; it could not, given the 

presence of a guard on the parallel conveyor. 

Southern Hens’ best authority to the contrary is the OSHA guidance 

document cited above, but it is not much help. The guidance expresses only 

qualified approval of guarding by distance: “Operators can use tools to feed 

work pieces into equipment to keep their hands away from the point of 

operation, but this should be done only in conjunction with the guards and 

devices described previously.” Occupational Safety & Health Admin., 

Safeguarding Equipment. Also significant is the text of the standard itself, 

which provides that hand tools, if used, must “permit easy handling of material 

without the operator placing a hand in the danger zone” and “shall not be in 

lieu of other guarding required by this section, but can only be used to 

supplement protection provided.” 29 C.F.R. § 1910.212(a)(3)(iii). Southern 

Hens’ provision of the tool to Hunt satisfied neither condition. Consequently, 

Southern Hens fails to disturb the ALJ’s finding of non-compliance with the 

standard.

As to exposure, a threshold question is the degree required to sustain a 

violation. We have not yet endorsed the “reasonably predictable” standard from 

the Commission’s Fabricated Metal Products decision,13 but other circuit

courts have. See, e.g., R. Williams Constr. Co. v. O.S.H.R.C., 464 F.3d 1060, 

1064 (9th Cir. 2006); Amer. Wrecking Corp. v. Sec’y of Labor, 364 F.3d 321, 327 

(D.C. Cir. 2004) (per curiam); N&N Contractors, Inc. v. O.S.H.R.C., 255 F.3d 

 

13 An unpublished decision in 2011 considered it arguendo but did not affirm that it is 

the correct standard for exposure. See Turner Indus. Grp., L.L.P. v. O.S.H.R.C., 413 F. App’x 

690, 693–94 (5th Cir. 2011) (per curiam).

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122, 127 (4th Cir. 2001). Southern Hens does not contest that the standard 

applies, nor does it propose an alternative. Because it is of long standing,14

endorsed by other courts, and not rivaled by an alternative, we adopt it now.

To recall the standard, the Secretary must show “it is reasonably 

predictable either by operational necessity or otherwise (including 

inadvertence), that employees have been, are, or will be in the zone of danger.”

Fabricated Metal Prods., 1997 WL 694096, at *3. The record shows 

“operational necessity”: jams frequently occurred on the conveyor; it was 

Hunt’s job to clear them; and the tool he was given was too heavy to use for all 

jams. The consequence of this operational necessity was, as Young observed, 

Hunt’s fingers getting within an inch or two of a nip point. This is substantial 

evidence that employee injury from the hazard is reasonably predictable. 

Southern Hens’ call to focus on “the manner in which the machine functions 

and the way it is operated” only bolsters the ALJ’s determination. The 

machine’s frequent jams were the underlying cause of this hazard. Likewise, 

Southern Hens’ provision of a tool does not eliminate employee exposure if the 

nature of the tool and the frequency of jams combine to render use of the tool 

impractical. 

The issue of knowledge is straightforward. One glance at the machine 

would reveal it had no physical guard, and one glance at the adjoining machine 

would show the feasibility of installing one. Thus, even with minimal diligence, 

Southern Hens should have known of the violation. This suffices for 

 

14 Fabricated Metal Products was not a novelty, but rather a synthesis of “seminal” 

Commission precedent. 1997 WL 694096 at *2; see Rockwell Int’l Corp., 9 BNA OSHC 1092 

(No. 12470, 1980), 1980 WL 10706, at *6 (focusing on “the manner in which the machine 

functions and how it is operated by the employees”), abrogated on other grounds by George C. 

Christopher & Sons, Inc., 10 BNA OSHC 1436 (No. 76-647, 1982); Gilles & Cotting, Inc., 3 

BNA OSHC 2002 (No. 504, 1976), 1976 WL 5933, at *2 (adopting a “rule of access based on 

reasonable predictability”). 

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constructive knowledge. Southern Hens misses the mark by arguing that there 

was no history of injuries on the machine. As noted, the requisite knowledge is 

only of the physical conditions constituting the violation. See Sanderson 

Farms, 811 F.3d at 735–36; E. Tex. Motor Freight, 671 F.2d at 849. The lack of 

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

nip point lacked a physical guard.

Finally, there is the ALJ’s decision to deem the violation “serious.” “A 

serious violation exists ‘if there is a substantial probability that death or 

serious physical harm could result from [the] condition[s].’” Sanderson Farms, 

811 F.3d at 737 (quoting 29 U.S.C. § 666(k)). This standard may be separated 

into two probabilistic questions: the possibility of an injury and, if an injury 

occurs, the likelihood it is serious or lethal. See E. Tex. Motor Freight, 671 F.2d 

at 849 (“A violation may be determined to be serious where, although the 

accident itself is merely possible . . . there is a substantial probability of serious 

injury if it does occur.”(quotation omitted)). 

Southern Hens’ lack of injury history on the conveyor bears on the first 

of these, but the threshold––mere possibility––is low. Eyewitness observation 

of an employee’s hand being within an inch or two of a nip point is enough to 

establish that.

Southern Hens also relies on a Commission decision rejecting a 

compliance officer’s recommendation of a serious violation. See Dorman Prods., 

Inc., 1979 CCH OSHD ¶ 23,508 (No. 78-3009, 1979) (ALJ), 1979 WL 7927. The 

case concerned a “box-setting machine” that used a plunger to form cardboard 

into shipping boxes. Id. at *1. No guard protected employees from the plunger, 

and several had gotten hands “trapped” while clearing jams or doing 

maintenance. Id. at *2. The Commission found no serious violation because 

there was “no significant resulting injury, no medical attention required, and 

no lost time from work.” Id. It credited the company with an “exemplary” safety 

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program and observed there were no employee complaints. Id. at *2. The 

Commission then let the company go without a penalty. Id. at *4. 

The facts of Dorman Products made it quite reasonable for the 

Commission to reject a serious violation, but the facts here are dissimilar. This 

citation of Southern Hens is preventive. No employee has yet gotten trapped 

in the nip point, so the likely severity of an injury, if one were to occur, may be 

debated. In Dorman Products, by contrast, several employees’ hands were 

trapped, but they suffered no injury. Southern Hens has no such evidence at 

its disposal. Moreover, given the other violation in this case, Southern Hens 

cannot be credited with the “exemplary” safety program that aided the 

company’s case in Dorman Products.

Though Southern Hens’ arguments are unpersuasive, the ALJ must still 

have reasonably found a substantial probability that an injury would be 

serious. We have construed “serious” injury to include broken bones, crushed 

toes, and chemical burns. See Sanderson Farms, 811 F.3d at 737 (bones); 

Albemarle Corp. v. Herman, 221 F.3d 782, 787 (5th Cir. 2000) (burns); E. Tex. 

Motor Freight, 671 F.2d at 849 (toes). More generally, we have said that 

“[w]hen human life or limb is at stake, any violation of a regulation is ‘serious’.” 

Everglades Sugar Refinery, Inc. v. Donovan, 658 F.2d 1076, 1082 (5th Cir. Unit 

B Oct. 1981) (quotation omitted). The ALJ looked to the risk of amputation 

here, which was based on Young’s opinion testimony. While this may not be 

the strongest evidence, Southern Hens had no rebuttal evidence. Because 

OSHA regulations err on the side of prevention, and because the substantialevidence standard of judicial review is deferential, we uphold the ALJ’s 

determination.

C

The ALJ penalized Southern Hens $7,000 for the lockout violation and 

$5,000 for the machine-guarding violation. She based these penalty amounts 

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on the factors enumerated in 29 U.S.C. § 666(j): “the size of the business of the 

employer being charged, the gravity of the violation, the good faith of the 

employer, and the history of previous violations.”15

Southern Hens’ challenge to the penalties is based not on the ALJ’s 

consideration of the § 666(j) factors, but on the theory that the ALJ 

impermissibly considered penalty sums exceeding the statutory maximum. 

Southern Hens points to § 666(b), under which penalties for serious violations 

are capped at $7,000. The actual penalties here did not exceed this cap, but the 

Secretary requested penalties for the two violations of $12,471 and $6,663. 

Southern Hens’ theory appears to be that the Secretary’s request 

impermissibly tainted the ALJ’s deliberations, even though the result was 

within the statute’s limits. 

As the Secretary correctly observes, the statutory caps have been 

increased pursuant to the Federal Civil Penalties Inflation Adjustment Act. 

When the Act was passed originally in 1990, it exempted OSHA, but Congress 

eliminated the exemption in 2015. See Bipartisan Budget Act of 2015, Pub. L. 

No. 114-74, § 701, 129 Stat. 584, 599 (2015). OSHA is now obligated to adjust 

its civil penalties by regulation, which the Secretary did in 2016, setting the 

maximum penalty at $12,471. See 81 Fed. Reg. 43,430, 43,439 (June 24, 2016). 

That is precisely the penalty that the Secretary requested for Southern Hens’ 

lockout violation, and its request therefore was lawful. 

 

15 The ALJ credited Southern Hens with promptly reporting Norman’s injury and with 

a lack of injury history on the conveyor, and she noted it was not a particularly large 

company. She found that the severity of Norman’s injury, the likely severity of an injury from 

the conveyor’s nip point, and Southern Hens’ decision to discipline Norman rather than 

accept responsibility weighed in favor of a larger penalty. She made the penalty for the 

lockout violation larger because of the two documented injuries on the Tumbler, whereas the 

conveyor lacked a history of injuries and the possibility of injury appeared more remote.

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Southern Hens argues that the specific should trump the general, so the 

$7,000 figure in § 666(b) should remain the statutory maximum. Southern 

Hens cites no authority for the proposition that Congress must directly amend 

the penalty amount in every single statute, rather than employing the 

approach to inflation adjustment it took here. Even if such authority were 

shown, it would not do away with the problem, already noted, that the ALJ’s 

penalty was within the unadjusted limit of § 666(b). 

Accordingly, Southern Hens’ challenge to the ALJ’s penalty 

determination fails. We therefore uphold the penalties.16

V

For the foregoing reasons, the petition for review is DENIED. 

 

16 Southern Hens made no challenge to the ALJ’s consideration of statutory factors, 

but had it done so, we would review for abuse of discretion. Chao v. O.S.H.R.C., 401 F.3d 355, 

376 (5th Cir. 2005). Such a challenge would be similarly unavailing. The ALJ’s consideration 

of the § 666(j) factors was reasonable, evenhanded, and thus worthy of affirmance.

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