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Southern Hens, Inc. v. Occupational Safety and Health Review Commission

United States Court of Appeals, Fifth Circuit

July 18, 2019


          Petition for Review of an Order of the Occupational Safety and Health Review Commission

          Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.


         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.



         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 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]


         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 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.


         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 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."

         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 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 lockout-tagout 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.

          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.


         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 ...

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