Petition for Review of an Order of the Occupational Safety
and Health Review Commission
HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
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.
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 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,  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.
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.
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.
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.
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
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.
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, " "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
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.
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
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
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."
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. 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.
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.
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.
comprehensive reasoned decision, the ALJ affirmed two of the
three citations recommended by Young. 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
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." Southern Hens
timely petitioned this court for review.
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 ...