Southern Foods, d/b/a Meadow Gold Dairies

Plain-English summary

A Meadow Gold Dairies employee lost a finger while clearing a jam from a milk-jug trimmer after employees propped its reset button in the on position. The judge vacated a lockout-procedure item because the company's written procedures addressed the hazardous energy sources identified for the trimmer and blow-mold machine. He affirmed as other-than-serious a failure to include required information in certifications of periodic lockout inspections and assessed $50. A lockout item for routine jam clearing was vacated because the trimmer's plexiglass barrier, interlock, and separate reset button ordinarily prevented unexpected startup. The machine-guarding item was also vacated because management lacked actual or constructive knowledge that employees had intermittently bypassed those safeguards despite rules, training, inspections, and prior discipline. Two additional lockout items were withdrawn at the hearing.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(ii)(B); 29 C.F.R. § 1910.147(c)(6)(ii); 29 C.F.R. § 1910.147(d)(2); 29 C.F.R. § 1910.147(d)(3); 29 C.F.R. § 1910.147(d)(4)(i); 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: One certification item was affirmed as other-than-serious with a $50 penalty, three items were vacated, and two were withdrawn.
• Key point: The injury did not establish employer knowledge of intermittent employee tampering with otherwise adequate machine safeguards.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 03-1928
SOUTHERN FOODS dlb/a MEADOW GOLD
DAIRIES,
Respondent.

APPEARANCES:

      For the Complainant:
               Oscar L. Hampton, III, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

      For the Respondent:
               E. Jeffeiy Stozy, Esq., Dallas, Texas

Before: Administrative Law Judge: James H. Barkley

                                          DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section
651-678; hereafter called the “Act”).
Respondent, Southern Foods, d/b/a Meadow Gold Dairies (Meadow Gold), at all times
relevant to this action maintained a place of business at 109 South Broadway, Billings, Montana,
where it operated a milk processing plant. Meadow Golds admits it is an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.
On April 23, 2003, Respondents employee was injured while he was clearing ajam on
Meadow Golds gallon jug trimmer. As a result, the Occupational Safety and Health
Administration (OSHA) conducted an inspection of Meadow Golds Billings work site. As a
result of that inspection, Meadow Gold was issued a citation alleging violations of the Act. By
filing a timely notice of contest Meadow Gold brought this proceeding before the Occupational
Safety and Health Review Commission (Commission). On August 10, 2004, a hearing was held
on this matter in Billings, Montana. At the hearing, the Secretary withdrew “willful” citation 2,
items I a and 1 b, alleging violations of § 1910. 1 47(d)(2) and (d)(3). The parties have submitted
briefs on the items remaining at issue and this matter is ready for disposition.
 Facts
The blow mold machine, cooling table and trimmer work together as an integrated system that
manufactures gallon milk jugs. Plastic resin is molded in the blow mold; the resulting jug is sent to the
trimmer, where the neck and tail flashing is cut off(Tr. 261; Exh. C-1, R-6, R-7). The untrimmed jug
enters the lower nest of the trimmer, which moves up into the point of operation located in the fixed
upper nest where the cutting takes place (Tr. 31; Exh. C-1). The finished jugs are then sent either to the
plant to be filled, or to the bagger, located in the next room, where the jugs are counted and sealed into
lots for later use (Tr. 29, 156-57; Exh. C-1).
The trimmers points of operation, i.e., the cutting heads, are guarded by plexiglass doors and a
mechanical interlock. When the door is opened a roller arm moves up, breaking the electric circuit and
shutting down the machine (Tr. 31-33, 39, 41; Exh. C-1, R-7). When the doors are closed, the roller is
depressed, closing the circuit (Tr. 39). The machine can then be restarted only by depressing a reset button
(Tr. 44, 59-60). The restart button is under The sole control of the operator (Tr. 206, 246).
Occasionally the jugs become misaligned and stick in the upper nest (Tr. 41). Jams can occur as
often as every two minutes, or the trimmer may operate an entire shift without jamming (Tr. 184).
Employees clear the jam by opening the plexiglass door and pushing the stuck jug out the other side (Tr.
42, 174, 195, 267). After clearing the jam the operator closes the plexiglass door and presses the reset to
restart the trimmer (Tr. 44-45, 62-63).
At the time of the accident, Robin McCoy was a relief operator for Meadow Gold (Tr. 153). In
addition to other equipment, McCoy ran the blow mold machine and trimmer when the regular operator
was on vacation (Tr. 153). McCoy testified that when he arrived at work at 11 p.m. on April 22, 2003,
the trimmer was down and Martin Reichert from maintenance was working on it (Tr. 155, 341).
McCoy testified that the reset button was jerry-rigged with a copper pipe holding it in the depressed
“on” position when he arrived (Tr. 166-67). He had never seen the switch purposely jammed in the on
position prior to that night (Tr. 166-67, 184). According to McCoy, they got the machine running
between two and three in the morning and he began sending trimmed milk jugs to the bagger (Tr. 155­
56). Around four oclock, Terry Roberts from maintenance came in and opened the trimmers control
panel. After finishing with the control panel, Roberts removed the copper pipe that had been jammed
under the trimmers restart button (Tr. 158-59). Roberts restarted the trimmer; however, after running
for a short time, the trimmer would shut down, compelling Roberts to press the restart button again and
again. Finally, Roberts replaced the copper pipe that held the restart button in the “on” position and left
(Tr. 159-60). Roberts told CO Funke that he believed the restart switch was faulty; Martin Reichert
had been unable to fix it during the previous shift and so had jammed the pipe against the restart button
so that the trimmer would not keep shutting off (Exh. R-16, p. 9). At approximately five in the
morning, ajug turned sideways on the belt and became jammed in the trimmer (Tr. 160). McCoy
opened the plexiglass door and reached into the trimmer (Tr. 42, 160-61). McCoy believed that he
placed his elbow on the interlocks roller, completing the electrical circuit. The machine cycled once,
amputating McCoys finger (Tr. 42, 45, 161).
Robert Jones, a blow mold operator for Meadow Gold, testified that on Monday, April 21, the
mechanical interlock on the trimmer was not working consistently (Tr. 55, 189). Jones stated that in the
week preceding the accident the interlock only worked sporadically (Tr. 193, 195). Sometimes the
trimmer would shut down when he opened the plexiglass doors; other times it would not (Tr. 189-90).
If the interlock didnt work when Jones opened the doors to clear a jam, he would hit the emergency
stop button on the side of the machine (Tr. 191, 205). Jones did not tell his supervisor, Michael
Ragsdale, that the interlock was not working; he did report it to maintenance (Tr. 206-07). Roberts
confirmed to CO Funke that he learned about the problem with the trimmer about a week prior to the
accident (Exh. C-16, p. 10). Jones testified, however, that every time he opened the plexiglass doors on
the Monday and Tuesday preceding McCoys accident, the trimmer would shut off (Tr. 184).
Jones testified that he saw the reset button jerry-rigged in the “on” position twice beginning on
the Monday night approximately a week prior to McCoys accident (Tr. 193-94, 199, 203, see also
testimony of CO Funke, Tr. 104-05). Jones had seen the button both taped down with scotch tape, and
propped in the “on” position with a copper pipe, when he arrived to relieve Chris Fousha (Tr. 197,
202). Jones testified that Ragsdale was not on duty when he came on shift, and that he did not report
the jeny-rigging to him (Tr. 202-03).
The OSHA Compliance Officer (CO), Jeffery Funke, testified that another of the trimmers
operators, Cheryle Green, told him that, prior to April 23, 2003, she operated the trimmer when the
interlock was not operational (Tr. 102-03). Specifically, Green told him that the trimmer continued to
cycle after she opened the plexiglass doors (Tr. 55).
Chris Fousha testified that he discovered that the trimmers mechanical interlock was not
working at all when he arrived for his shift on April 21, 2003 (Tr. 52, 315). Fousha reported the
deficiency to his supervisor, Michael Ragsdale (Tr. 52). According to Fousha, there were several
occasions when he experienced problems with the interlock; however, he had never reported the
problems prior to the incident in April 2003 (Tr. 314-15).

 Michael Ragsdale, Meadow Gold*s plant manager (Tr. 209), testified that around April 17, 2003,

Chris Fousha came into his office and told him that the mechanical interlock on the trimmer was not
working (Tr. 224-25, 230). According to Ragsdale, he followed Fousha back to the trimmer and shut
off the equipment (Tr. 226). He and Fousha looked in the trimmers electrical cabinet, where they
noticed a disconnected wire (Tr. 226). Ragsdale immediately contacted Martin Reichert, the last
maintenance man on shift that day (Tr. 226-27). Reichert told Ragsdale which terminal the wire should
be connected to (Tr. 227). After Ragsdale reconnected the wire, he pushed the reset button, and the
trimmer started up (Tr. 228-29). When he lifted the plexiglass guard, the machine stopped (Tr. 229).
When Ragsdale checked with Reichert and Roberts the next morning, they told him that the interlock
was working fine (Tr. 229-30, 275). Ragsdale received no other reports that the trimmers interlock
wasn*t working properly (Tr. 231). Ragsdale stated that he did not know that the reset button for the
trimmer was being jerry-rigged (Tr. 223-25). Had he been informed that employees were bypassing the
mechanical interlock, he would have rectified the situation immediately (Tr. 225).
Alleged Violation of § 1910.1 47(c)(4)(ii)(B)
Serious citation 1, item 1 alleges:
29 CFR 1910.147(c)(4)(ii)(B): The energy control procedures did not clearly and specifically
outline the steps for shutting down, isolating, blocking and securing machines or equipment to control
hazardous energy:
(a) Blow mold room: The specific written lockout procedure for the blow mold and peripheral
machinery including but not limited to the cooling table and trimmer did not address all energy
sources including but not limited to thermal, hydraulic, pneumatic, and gravity.

    The cited standard requires the employer to develop, document and utilize procedures for the

control of potentially hazardous energy when employees are engaged in the activities covered by this
§1910.147, including:
Specific procedural steps for shutting down, isolating, blocking and securing machines or
equipment to control hazardous energy;
Facts
Meadow Gold has a lockout/tagout program, which includes procedures addressing the means
of shutting down the blow mold, bottle bagger and trimmer (Tr. 64-67; C-4). In addition, Meadow
Gold provided more detailed procedures specifically addressing the blow mold (Tr. 74; Exh. C-3). CO
Funke testified that the general procedures for the trimmer do not address either pneumatic energy or
gravity as energy sources (Tr. 70). The detailed lockout procedures for the blow mold do not address
hydraulic energy, though hydraulic energy is addressed in the general procedures (Tr. 75, 264, 266;
Exh. C-3). Ragsdale admitted that the detailed shutdown procedures applicable to the blow mold were
incomplete (Tr.266). In addition, Funke stated, none of the procedures included a step requiring that
the equipment be tested to ensure that lockout resulted in a zero energy state (Tr. 71-74).
 On cross examination, Funke admitted that neither pneumatic energy nor gravity drives the
cutting heads on the trimmer (Tr. 146, 150-51). Air is used only to push the jugs through the system,
and does not drive the trimmer (Tr. 150, 238). The top nest, where the cutting heads are located, is
stationary; gravity could not drive the lower nest upwards (Tr. 150, 238).
Discussion
It is undisputed that maintenance employees at Respondents plant perform service and
maintenance (other than unjamnuing) on the blow mold and peripheral machinery, triggering the
application of the cited standard. Although the Secretary introduced evidence tending to establish that
Meadow Golds lockout/tagout procedures did not address required features of a complete
lockout/tagout program, i.e., the means of veri1~ing the isolation of the equipment,1 the citations
language limits the scope of the citation, so that the only inquiry here is whether Meadow Golds
lockout/tagout procedures addressed each source of energy for the blow mold and peripheral
equipment, including the cooling table and trimmer. The Secretary introduced no evidence relating to
the cooling table. At the hearing, it was established that the cutting heads on the trimmer ran solely on
electrical energy; the blow mold utilized both electrical and hydraulic.
Page 76 of Exhibit C-4 identifies electrical energy as the source of power for the bottle trimmer.
Lockout is accomplished by utilizing normal shut down procedures, and moving the electrical cut-off
switch on the mail panel above the trimmer to the “off position. The switch is then locked and tagged
out. Page 77 of Exhibit C-4 addresses power sources for the blow mold machine, including electrical,
hydraulic and compressed ammonia. The instructions direct the user to shut down the electrical and
hydraulic systems by pulling down the breaker switch on the north side of the machine and locking out
the panel doors. The air is then shut off using hand valves on the north upper west end. Because the
only sources of hazardous energy, electrical and hydraulic, to the trimmer and blow mold are addressed
by Meadow Gold*s lockout/tagout procedures, the citation, as it is written, must be dismissed.

                               Alleged Violation of §191O.147(c)(6)(ii)
   Serious citation 1, item 2 alleges:

29 CFR 1910.147 (c)(6)(ii): The employer had not certified that periodic inspections of the energy
control procedures had been performed:

      1
          §1910.147(c)(4)(ij)(D) addresses isolation, requiring:

Specific requirements for testing a machine or equipment to determine and verify the
effectiveness of lockout devices, tagout devices and other energy control measures.
 (a) Blow mold room: Employees performing lockout on equipment including but not limited to
the blow mold, cooling table, and trimmer.

    Subparagraph (c)(6) requires that annual inspections are performed to ensure that the

procedures and requirements of the Iockoutltagout standard are being followed. Specifically,
subparagraph (c)(6)(ii) requires that:
The employer shall certify that the periodic inspections have been performed. The certification
shall identify the machine or equipment on which the energy control procedure was being
utilized, the date of the inspection, the employees included in the inspection and the person
performing the inspection.

Facts
Mr. Ragsdale admitted that Meadow Gold had no documents certifying that the periodic
lockout/tagout inspections required under § 1910.147 (c)(6)(ii) were performed (Tr. 260). Ragsdale
further testified that had such documents existed, Meadow Gold would have produced them (Tr. 260).
Meadow Gold did, however, produce documents at the hearing indicating that periodic reviews were
performed in January 2001, April 2002, and June 2003 (Tr. 81-82; Exh. R-2). CO Funke testified that
the reviews, which were conducted 14 months apart, indicate neither which equipment, nor which
employees were included in the review (Tr. 82). Only deficiencies in the program were specifically
noted on the review sheets (Exh.R-2).
Discussion
As noted above, the lockout/tagout standard applies to the blow mold and peripheral machinery
generally, triggering the annual audit requirement. The evidence does not establish that Meadow Gold
failed to audit its lockout/tagout program. It does show that Respondent conducted its audits 14 rather
than 12 months apart and that Respondent failed to include the required information on its
certifications. The Secretary has, therefore, made out her prima fade case, and the citation is affirmed.
In the absence of any evidence that the audits failed to identify serious deficiencies in the
lockout/tagout program, however, this judge cannot find that the violative condition or practice gave
rise to a “substantial probability” of death or serious physical harm. The citation will be affirmed an
“other than serious” violation of the Act.
Penalty
In determining the penalty the Commission is required to give due consideration to the size of
the employer, the gravity of the violation and the employer*s good faith and history of previous
violations. The gravity of the offense is the principle factor to be considered. Nacirema Operating Co.,
1 BNA OSHC 1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). Meadow Gold is a large company, with
more than 250 employees (Tr. 77). According to CO Funke, Respondent had received serious citations
as a result of a comprehensive, wall-to-wall inspection which took place approximately two months
prior to this inspection, however, none of the citations involved the lockout/tagout standards (Tr. 77,
86-87). Respondent had instituted a lockout/tagout program, and required inspections were performed,
pursuant to the cited standard (Tr. 77, 93). Employees had been trained in, and were familiar with
lockout/tagout procedures (Tr. 77-78, 88). Taking into account the relevant factors, a penalty of $50.00
is assessed.

                            Alleged Violation of § 1910.1 47(d)(4)(i)

Willful citation 2, item ic alleges:
29 CFR 1910. 147(d)(4)(i): Lockout or tagout devices were not affixed to each energy isolating device
by authorized employees:
(a) On or about April 23, 2003, and at times prior thereto, employees cleared ajam in theUniloy
Trimmer Model #10039 without locking out the machine.

Facts
The facts relevant to this item are as set forth above, and are not disputed.
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359,
1991).
The Commission has recognized that the scope of the lockout/tagout standard is limited to 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.
GeneralMotors Corp., Delco Chassis Division, 1995 CCH OSHD ¶30,793 (Nos. 91-2973, 91-3116 &
91-3117, 1995), aff*d 89 F.3d 313 (6th Cir. 1996). If employees are performing servicing or maintenance
tasks that do not expose them to the unexpected release of hazardous energy, the standard does not
apply. The record establishes that the cited bottle trimmer was designed to shut off when employees
opened the plexiglass doors to perform routine unjamming procedures. The trimmer could not be
restarted unless the operator closed the plexiglass door, thereby activating the interlock switch that
supplied electricity to the trimmer, and then pressed the reset button. There was, therefore, no risk that
the machine could become energized unexpectedly. The lockout/tagout standard, by its own terms,
does not apply to the specific type of servicing cited in this matter.2
This conclusion is not altered by the occurrence of the April 2003 accident. It would be
unreasonable to hold the employer responsible for developing and implementing an otherwise
inapplicable lockout/tagout program in anticipation that employees will deliberately bypass built-in
safeguards intended to prevent the unexpected startup of machinery. Because the Secretary has not
proven that § 1910.147 applies in the cited circumstances, “willful” citation 2, item 1(c) is vacated.
Alleged Violation of §l9lO.212(a)(3)(ii)
Willful citation 2, item 1d alleges:
29 CFR l910.212(a)(3)(ii): Point(s) of operation of machinery were not guarded to prevent employee(s)
from having any part of their body in the danger zone(s) during operating cycle(s):
(a) Blow Mold Room, Uniloy Model #10039: On or about April 21, 2003 and at times prior
thereto and thereafter, employees were exposed to the hazard of amputation and crushing from
the shearing action between the upper and lower nest, because the mechanical and magnetic
limit switches were disconnected.

    (b) Blow Mold Room, Uniloy Model #10039: On or about April 23, 2003 and at times prior
    thereto, employees were exposed to the hazard of amputation and crushing from the shearing
    action between the upper and lower nest, because the trimmer button was deliberately held in
    the on position with a piece of copper pipe secured with plastic wire ties.

Facts
The magnetic interlock was meant to replace and to serve the same function as the mechanical
interlock, i.e., to stop the trimmer when the plexiglass barrier was raised.
In regard to the magnetic limit switch, the record establishes that Mike Ragsdale received a
copy of a July 5, 2001 memo from Gregg Jones, Meadow Golds regional safety manager, which was
originally directed to Tim Dietz, Meadow Golds Human resources manager (Tr. 99-100, 242-3; Exh.
C-2). The memo consisted of a subject line, “Re: Required Blow mold Guarding,” and an attached
price quote for magnetic interlock switches (Tr. 99-10 1; Exh. C-2). Tim Dietz had added a note asking
Ragsdale if they were in compliance with the required guarding. Ragsdale testified that he understood

       2
           2 This judge notes that even were the IockoutJtagout standard found to apply to clearing jams,

the cited activity would be excepted under the NOTE to subparagraph (a)(2)(ii), which states that
normal production operations, where employees are required to place part of their bodies into the
point of operation, are exempted if the work is performed using effective alternative measures pursuant
to subpart 0, Ma chinery and Ma chine Guarding. The plexiglass barrier, interlock, and restart button on
the bottle trimmer provided an effective means of protection until they were circumvented by
employees deliberately and improperly wiring the restart button in the “on” position. The guarding
issue is properly addressed under subpart 0s §1910.212(a), which is applicable, and which was cited
at citation 2, item 1(d).
the memo was intended merely as an inquiry, and to bring a new product to his attention (Tr. 243).
Ragsdale testified that the existing mechanical interlock constituted adequate guarding (Tr. 243-44,
250). At the hearing, Gregg Jones testified that he had no reason to believe that the blow mold machine
in Billings was inadequately guarded (Tr. 291). In his opinion, the original mechanical guarding was
adequate (Tr. 292). According to Jones, the July 5, 2001 memo was purely informational in nature (Tr.
289-93).
Ragsdale, nonetheless, asked Terry Roberts to order the magnetic switch for the blow mold
trimmer (Tr. 250). In a note on the Jones memo, Ragsdale directed Roberts to use the existing wiring
from the current switch interlock for its installation (Exh. C-2). The magnetic switch was subsequently
ordered from Excel Electric and installed on the trimmer (Tr. 101). Both Ragsdale and CO Funke
testified that the magnetic interlock was suspected of causing the trimmer to shut down unexpectedly,
and so was removed around November 2002 (Tr. 102, 250). After that date the mechanical interlock
was used.
As discussed above, that interlock was also disabled for some period (Tr. 226). Terry Roberts
told CO Funke that he had bypassed the interlock in an attempt to determine why the trimmer kept
turning off (Tr. 325-26; Exh. R-16, p. 11). When Chris Fousha complained that the interlock was not
working, Ragsdale shut the trimmer down until the interlock was reconnected (Tr. 224-29). At the time
of the accident, the bottle trimmers point of operation was guarded by the plexiglass barrier, the restart
button, and the mechanical interlock, which had been reconnected at least two days before the accident
(Tr. 336, 342).
Nonetheless, at the time of the accident, and on occasions during the preceding week, the reset
button on the control panel had been taped or propped in the “on” position, compromising the
mechanical interlock so that it no longer eliminated the possibility of accidental start-up (Tr. 166-67,
193-94, 197-99, 203). At least five Meadow Gold employees were aware of the jerry-rigging, Chris
Fousha, Robert Jones, Robin McCoy, Martin Reichert and Terry Roberts (Tr. 158-60, 166-67, 193-94,
197-99, 202-203). None of the employees alerted their supervisor, Mike Ragsdale, to the problem (Tr.
203). According to Jones, Ragsdale was never in the plant at night during his shift (Tr. 202). Ragsdale
testified that he “probably wore too many hats;” he had no assistant plant operations manager, and he
had to rely on the employees to let him know if something wasnt working right (Tr. 269, 277).
Meadow Gold has a safety program, which includes a written program, new employee and
annual training and progressive disciplinary procedures (Tr. 210-13; Exh. R- 1). Teriy Roberts, Robin
McCoy and Cheryl Green signed documents indicating that they understood Meadow Golds general
safety rules, which included a prohibition against operating “any equipment without the proper safety
systems or guards in place.” (Tr. 168-69, 258, 301; Exh. R-1, R-3, R-10, R-1 1). Ragsdale testified that
he is in the plant every day (Tr. 268). The plant is inspected once a month; the safety committee meets
once a month to discuss safety issues (Tr. 216, 298-300). Employees have been disciplined for
violating safety rules (Tr. 217, 220-21; Exh. R-5). Specifically, in October 1999, a blow mold operator,
Elmer Heidt, received a warning letter for circumventing an interlock device on the same blow mold
trimmer involved in the cited accident (Tr. 219, 272-73; Exh. R-5, p 1). Terry Roberts was suspended
following the April 2003 accident based on his knowledge of the modification to the reset switch on
the trimmer (Tr. 221-23, Exh. R-5, p. 5).
Discussion
It is undisputed that the cutting heads of the cited bottle trimmer pose a hazard requiring
guarding under the cited standard. The evidence further establishes that the cited trimmer was
adequately guarded until the employees tampered with its components. Incidental access to the zone of
danger was blocked by the plexiglass barrier. If the barrier was raised, power to the trimmer was
interrupted by the mechanical interlock. Reactivation of the trimmer could not occur until the operator
pressed the reset button, which was positioned far enough away from the point of operation that the
operator could not reset the trimmer until he had removed his hands from the zone of danger. These
three safety features, satisfied the cited guarding standard prior to the week immediately preceding the
accident.
However, not all features of the required guarding were in place continuously during the week
prior to April 23, 2003. At times the mechanical interlock was disconnected. At other times the reset
switch was tampered with, rendering the interlock mechanism partially ineffective. The Secretary,
however, has not established, by a preponderance of the evidence, that Meadow Gold knew of the cited
condition.
Knowledge. In order to show employer knowledge of a violation the Secretary must show that
the employer knew, or with the exercise of reasonable diligence, could have known of a hazardous
condition. Dun Par Engd. Form Co., 12 BNA OSHC 1962, 1986-87 CCH OSHD ¶27,651 (No. 82­
928, 1986). The record establishes that Meadow Gold had an adequate safety program addressing the
cited condition. Nonetheless, despite safety rules prohibiting the operation of equipment without proper
safety systems or guards in place, maintenance personnel, at various times, both disabled the trimmer*s
limit switch, and wired the reset button into the “on” position to keep the trimmer running. Operators
ran the trimmer with the jerry-rigged reset button rather than notifying supervisory personnel or
bringing it to the attention of the safety committee. There has been no showing that the plant manager,
Ragsdale, was aware of the intermittent tampering with the reset button. The one time he was told that
the interlock was not working he immediately took steps to fix it. Nor has the Secretary shown that he
should have discovered it during his regular inspections of the plant. Given the adequacy of its work
rules and training, as well as the regular inspections of the plant, there was no reason for Respondent to
foresee that employees would disregard a basic tenet of their machine safety program, and disable
guards intended for their protection. See Donahue Industries Inc., 20 BNA OSHC 1346, 2002 CCH
OSHD ¶32,679 (No. 99-0191,2003). Finally, the Secretary has not suggested additional measures
Meadow Gold should have taken to discover the cited violation, making it impossible for this judge to
find constructive knowledge. See; Precision Concrete Construction, 19 BNA OSHC 1404, 2001 CCH
OSHD ¶32,331 (No. 99-0707, 2001), citing Trinity Marine Nashville, Inc., 19 BNA OSHC 1015, 2000
CCH OSHC ¶32,158 (No. 98-0144, 2000), rev ‘don other grounds, 275 F.3d 423 (5th Cir. 2001).
Because the Secretary failed to make her prima facie case, citation 2, item id is vacated.

                                            ORDER

1. Citation 1, item 1, alleging violation of 29 CFR §1910. 147(c)(4)(ii)(B) is VACATED.

2. Citation 1, item 2, alleging violation of 29 CFR § 1910.1 47(c)(6)(ii) is AFFIRMED as an

“other than serious violation; a penalty of $50.00 is ASSESSED.

3. Citation 2, item 1 c, alleging violation of 29 CFR § 1910.1 47(d)(4)(i) is VACATED.

4. Citation 2, item id, alleging violation of 29 CFR §1910.212(a)(3)(ii) is VACATED.

                                                                /s/
                                                                James H. Barkley
                                                                Judge, OSHRC
   

   Dated: November 15, 2004