Sanderson Farms, Inc.

Plain-English summary

OSHA found unguarded rotating shafts on chicken-cutting saws and an unguarded projecting shaft end at a Sanderson Farms processing plant. The judge held that the saw arbor was an integral part of the power-transmission shaft and that the specific guarding standards required physical guards without separate proof that the configuration was hazardous. The saw-shaft item remained serious because clothing could snag on the high-speed rotating assembly. The projecting-shaft item was reduced to other-than-serious because its slow speed and small raised key made serious injury unlikely, and the combined proposed penalty was reduced from $4,050 to $1,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.219(c)(2)(i); 29 C.F.R. § 1910.219(c)(4)(i).
• Outcome: Saw-shaft item affirmed as serious; projecting-shaft item reclassified as other-than-serious; combined penalty reduced to $1,500.
• Key point: A specific shaft-guarding standard requires the prescribed physical guard once its conditions are met, but injury severity and actual configuration still determine classification and penalty.

Full text (OSHRC public release)

                                       United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          1924 Building – Room 2R90, 100 Alabama Street SW
                                     Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,

               v.                                                OSHRC Docket No. 14-0520

Sanderson Farms, Inc.,
Respondent.

Appearances:

      Kristina T. Harrell, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
               For the Secretary

      Darren Harrington, Esquire, Key Harrington Barnes, P.C., Dallas, Texas
              For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                       DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission

(Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651-678 (Act). Following an inspection of Sanderson Farm Inc.’s (Sanderson) worksite
in Laurel, Mississippi, the Secretary issued a citation to Sanderson alleging two serious and three
other than serious violations of the Act. Thereafter, the Secretary withdrew Item 1 of Citation 1
and all items of Citation 2. At issue before the Commission are Items 2a and 2b of Citation 1
alleging serious violations of the Act, and proposing a penalty in the amount $4,050.00.
A hearing in this matter was held on August 8, 2014, in Jackson, Mississippi. The parties
filed post-hearing briefs on October 8, 2014.
Jurisdiction
The parties stipulated that at all times relevant to this action Sanderson Farms was an
employer engaged in a business affecting interstate commerce within the meaning of sections
3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) & (5). See also Answer ¶¶ 1 & 2. The parties also
stipulated that jurisdiction of this action is conferred upon the Occupational Safety and Health
Review Commission pursuant to section 10(c) of the Act. (Tr. 14-15).
Background
Sanderson operates a chicken processing plant in Laurel, Mississippi. It employs
approximately 500 employees at the Laurel facility and has approximately 11,000 employees
company-wide (Tr. 113, 209). On January 15, 2014, OSHA Compliance Safety and Health
Officer Henry Rust (CSHO) conducted a planned programmed inspection of Respondent’s
Laurel facility.
During the inspection, while at the chicken cut-up area in the facility, the CSHO observed
two employees on either side of a metal table using motorized saws to cut chickens in half (Tr.
46-47, 69-70; Exhs. G-1 -G-4). The rotating shafts between the motors and the saw blades were
unguarded (Tr. 74, 91; Exhs. G-2, G-2(A), G-7). The shafts were less than 7 feet above the
ground (Tr. 81). As a result of this condition, the Secretary issued to Sanderson Citation 1, Item
2a alleging a serious violation of 29 C.F.R. § 1910.219(c)(2)(i) for failing to guard all exposed
parts of the horizontal shafts located between the motor and the blade on both saw hand cutters.
The CSHO also observed an unguarded shaft end protruding from a gear box at tender
scoring station #1 (also referred to as the “deboning station”) (Tr. 75; Exhs. G-10 - G-13). He
testified the shaft end was not smooth because a “key” which locks the shaft to the gearbox
protruded from the surface of the shaft (Tr. 76; Exhs. G-10 - G-12). Based on the CSHO’s
observations, the Secretary issued to Sanderson Citation 1, Item 2b, alleging a serious violation
of 29 C.F.R. §1910.219(c)(4)(i) on the grounds that it failed to guard the shaft end protruding
from a gear box at tender scoring station #1.
The Secretary proposed a combined penalty of $4,050.00 for Items 2a and 2b
The Alleged Violations
Applicable Law
To establish a violation of an OSHA standard, the Secretary must establish that: (1) the
standard applies to the facts; (2) the employer failed to comply with the terms of that standard;
(3) employees had access to the hazard covered by the standard, and (4) the employer had actual
or constructive knowledge of the violation (i.e. the employer knew, or with the exercise of

                                            2

reasonable diligence could have known, of the violative condition). 1 Atlantic Battery Co., 16
BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Citation 1, Item 2a
Citation 1, Item 2a alleges a violation of 29 C.F.R. §1910.219(c)(2)(i) on the grounds that
Sanderson failed to guard all exposed parts of the horizontal shafts attaching the motor to the
blade on both saw hand cutters. The cited standard provides:
All exposed parts of horizontal shafting seven (7) feet or less from floor or
working platform, excepting runways used exclusively for oiling, or running
adjustments, shall be protected by a stationary casing enclosing shafting
completely or by a trough enclosing sides and top or sides and bottom of shafting
as location requires.

     It is undisputed that the shafts between the saw blades at the chicken cut-up area were

less than 7 feet above the floor and unguarded. (Joint Pre-Hearing Statement, Stipulation Nos. 5
and 6). At the chicken cut-up area, a metal chute deposits whole chickens onto a table located
between two operators of the saw hand cutters (Tr. 47, 69-70; Exh. G-1). The saw operators
continually grab chickens from the table and cut them in half with the saw hand cutter (Tr. 47,
70; Exhs. G-1 - G-4). To cut the chicken, the employee holds the chicken on each side and
pushes it into the rotating blade (Tr. 47-48, 70; Exhs. G-1, G-3, G-4). As the chicken is cut, the
operator’s hands normally come down away from both the blade and the unguarded shaft (Tr.
125).
The shaft is covered by an arbor which is a sleeve that slides over the shaft of the saw
motor and connects the shaft to the saw blade (Tr. 61, 67). The arbor is connected to the shaft by
two set screws which protrude about a hair’s width above the shaft (Tr. 61, 189; Exhs. G-5, G-6).
A small gap, estimated at ¼ inch, exists between the arbor and the motor housing (Tr. 182, 190;
Exh. G-5(A)).
During installation of the arbor onto the shaft wrenches were used to hold the arbor to
attach it to the shaft. As a result, teeth marks or impressions were made in the arbor. This caused

1
In its Answer, Sanderson raised the affirmative defense of Unpreventable Employee Misconduct to both Items 2a
and 2b. However, Sanderson did not adduce any evidence relevant to the defense at the hearing and did not brief the
issue. It also was not listed as an unresolved issue in the Joint Pre-Hearing Statement. The briefing Order issued on
September 8, 2014, advised the parties that failure to brief an issue would result in it being deemed abandoned.
Therefore, the undersigned finds Sanderson abandoned the affirmative defense of employee misconduct.

                                                     3

some rising of the metal along the sides of the impressions (Tr. 62-63). Because it is connected
to the shaft, the arbor covering rotates at the same speed as the shaft, approximately 1750 rpm, or
about 30 times a second (Tr. 56). The shaft rotates counterclockwise (Tr. 95-96). According to
the CSHO, if an employee contacted the shaft the counterclockwise rotation could “pull the hand
back away from her and start to twist up” (Tr. 129-130). The CSHO testified he saw an
employee’s hand come within four inches of the rotating shaft (Tr. 126).
Sanderson asserts the cited standard is not applicable. It contends the standard found at
29 C.F.R. § 1910.219 only applies to a power transmission apparatus. Sanderson contends the
Secretary cited the arbor, which was the only exposed rotating part. It argues the arbor and the
shaft are two distinct components. The rotating arbor is a sleeve which slides over the motor
shaft (the power transmission apparatus) of the cut-up saw motor and is connected to the shaft by
two set screws. The purpose of the arbor is to secure the saw blade to the power transmission
apparatus. Sanderson argues the arbor itself is not a power transmission apparatus, therefore, the
cited standard does not apply (Sanderson’s brief, pp. 9-10). Sanderson further argues allowing
OSHA to treat distinct non-shaft components as if they were power transmission shafts will lead
to confusion regarding the circumstances when an arbor properly will be distinguished from a
shaft. According to it, the applicable standard is the general machine guarding standard at 29
C.F.R. § 1910.212 which requires the Secretary to prove the arbor actually presents a hazard that
necessitates a machine guard. 2 Sanderson asserts the Secretary failed to establish the arbor
presented a hazard here.
The undersigned is not persuaded. As Sanderson notes, the purpose of the arbor is to
secure the blade to the power transmission apparatus, i.e. the shaft. Without the arbor, the shaft
would not be connected to the saw and, therefore, would have no function. The arbor is a vital
and integral part of the power transmission apparatus and must be considered part of it. It rotates
at the same speed as the shaft and presents the same hazard as the unguarded shaft. It can be
protected in the same manner as an uncovered shaft. The undersigned has considered
Sanderson’s concern that there are circumstances when an arbor would be distinguishable from
the power transmission apparatus. The undersigned will not speculate regarding when an arbor
2
For example, § 1910.212(a)(1) 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.” (emphasis added).
4
would be sufficiently distinct from the power transmission apparatus not to be considered part of
the apparatus. In this specific situation the arbor is integrally related to the power transmission
shaft and as to both function and hazard is virtually indistinguishable from it. Accordingly, the
cited standard is applicable.
Sanderson next asserts there was no violation because the location of the saw operator in
relation to the shaft was such that it was not reasonably predictable the operator would contact
the shaft. It points out the saws have been used for 50 years to make approximately 5.2 billion
cuts to 750 million chickens. During this time, no employee has been injured by making contact
with the arbor and no employee has complained about making inadvertent contact with the shaft
(Sanderson’s brief, p. 5; Tr. 171).
While the accident history is certainly a factor to be considered when determining an
appropriate penalty, neither a specific accident rate nor any accident is required to establish a
violation. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 866 (10th Cir. 1975);
Signode Corp., 4 BNA OSHC 1078 (No. 3527, 1976); petition for review denied, 549 F.2d 804
(7th Cir. 1977). The purpose of the Act is to prevent the first accident. Elliot Constr. Corp., 23
BNA OSHC 2110, 2119 (No. 07-1578, 2012).
Sanderson also asserts the manufacturer has produced thousands of these saws and has
never been asked to consider designing or installing a guard. There is no evidence to support this
assertion. Even if true, there is no evidence regarding the configuration of other worksites; for
example, whether other employers installed some form of obstruction to prevent contact with
employees.
Sanderson recognizes the standard “presumes” a hazard, but argues this only creates a
presumption which frees the Secretary from producing prima facie evidence to establish by a
preponderance of the evidence that a hazard exists. Sanderson contends it was required only to
present sufficient evidence that more likely than not there was no hazard, and that once it
presented such evidence, the burden shifted back to the Secretary to establish a hazard.
Sanderson asserts it presented sufficient evidence to demonstrate there was no hazard, which the
Secretary failed to rebutt.
Sanderson correctly argues there is a substantive distinction between standards such as 29
C.F.R. § 1910.212(a)(1) which apply only when there is a hazard and standards such as 29 C.F.R.
5
§ 1910.219(c)(2)(i) which “presume” a hazard and explicitly require protective measures
whenever certain conditions are met. The Commission has held that to establish a violation of
standards such as 29 C.F.R. § 1910.219(c)(2)(i), the Secretary need only show the employer
violated the terms of the standard. The Secretary “bears no burden of proving that failure to
comply with such a specific standard creates a hazard.” Kaspar Electroplating Corp., 16 BNA
OSHC 1517, 1523 (No. 90-2866, 1993). Sanderson overreaches by asserting this creates a
generally rebuttable presumption. The Commission has consistently held that under such a
standard “working in close proximity to unguarded machinery where access is not otherwise
impeded or obstructed is sufficient to show exposure to a hazard.” Con Agra Flour Milling Co.,
16 BNA OSHC 1137, 1150 (No. 88-1250, 1993). rev'd in part on other grounds, 25 F.3d 653 (8th
Cir. 1994) (emphasis added); See also, American Luggage Works, Inc. 10 BNA OSHC 1678 (No.
77-893, 1982) (rejecting argument that no machine guarding required because operators required
to remove hands from point of operation because the standard requires a “device” and does not
allow reliance upon skill or attentiveness of employee). 3 Similarly, in General Motors Corp,
Rochester Products Div., 9 BNA OSHC 1575 (No. 78-2894, 1981) the Commission noted it “has
consistently held that the cited standard requires physical methods of guarding rather than
methods that depend on human behavior.” 4
While the evidence demonstrates the location of the shaft makes contact with employees
likely, there is no evidence that access to the shaft was impeded or obstructed. Guarding is
intended to eliminate danger from unsafe operating procedures, poor training, or operator
inadvertence. By providing guarding, reliance upon the skill or attentiveness of an operator is
replaced. American Luggage Works, Inc., 10 BNA OSHC 1678, 1682 (No. 77-893, 1982).

3
Insofar as legal presumptions generally are rebuttable, it is inaccurate to state that such standards “presume” a
hazard, See e.g. Fed. Rules of Evidence 301. Rather, the Secretary has made a regulatory determination that a stated
condition is inherently dangerous. Such regulations prohibit exposure to the condition unless the prescribed
protective measures are implemented. However, the Secretary still has the burden of establishing employee
exposure to the condition. For example, when promulgating 29 C.F.R. § 1910.23(a)(1), which requires that floor
holes “shall be guarded by a standard railing,” the Secretary, in an exercise of his regulatory authority, determined
that unguarded floor openings are per se hazardous. Therefore, an employer cannot defend with evidence that if an
employee fell through the opening he would land on a bed of feathers. Simply put, if an employee is exposed to
floor openings, they must be guarded.
4
Compare, Buffets, Inc., 21 BNA OSHC 1065 (No. 03-2097, 2005), where the Commission stated that “[u]nder
section 1910.212(a)(1), the Secretary is required ‘to prove that a hazard within the meaning of the standard exists in
the employer's workplace.”’ (citation omitted)
6
Therefore, absent evidence that contact with the shaft was impeded or otherwise obstructed,
Sanderson cannot prevail by merely asserting the shaft was guarded by the position of the
employee.
The cited standard requires “[a]ll exposed parts of horizontal shafting seven (7) feet or
less from floor or working platform. . . shall be protected by a stationary casing enclosing
shafting completely[.]” The undisputed evidence establishes the horizontal shafts between the
motors and the cutting saws were less than 7 feet above the floor and were unguarded. (Joint
Prehearing Statement, Stipulation Nos. 5 and 6). The operators’ hands came within 6 to 8 inches
of the shafts (Tr. 167, 213, 274-275). This establishes employees were exposed to the
unguarded shafts in violation of the cited standard.
There is no dispute Sanderson was aware the shafts were less than 7 feet from the ground
and were unguarded. Sanderson’s safety and health coordinator Richard Ward testified he
worked as a cut-up saw operator for six years and was not aware of an arbor shaft being guarded
(Tr. 271). Similarly Sanderson’s manager of corporate safety and health Scott Rushing testified
guards were not installed because he did not believe employees were exposed to a hazard (Tr.
166). The knowledge of Sanderson’s officials is imputed to it. Jersey Steel Erectors, 16 BNA
OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3d Cir. 1994). Therefore, Sanderson
had knowledge of the violative condition. The Secretary has established a violation of the cited
standard.
The violation was cited as serious. A violation is serious if there is a substantial
probability that death or serious physical harm could result from the violative condition. 29
U.S.C. § 666(k). Complainant need not show that there is a substantial probability that an
accident will occur; he need only show that if an accident occurred, serious physical harm would
result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984) (citing California
Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988 n.1 (9th Cir. 1975)).
Here, the shafts were approximately 5 inches long and rotated at approximately 1750 rpm
(Tr. 56, 122). Two set screws slightly stuck out from the shafts. There were also teeth marks
from the application of a wrench when the screws were turned (Tr. 104). According to the
CSHO, these indentations forced some of the metal up which created a catch point (Tr. 62-63,
122). Also, there was a small space between the arbor and the blade. Rushing estimated the gap
7
to be ¼ inch (Tr. 190). The CSHO estimated the gap was 3/8 inch, which also could create a
catch point (Tr. 131). Rushing disputed the CSHO’s findings regarding the catch points (Tr.
181). The undersigned finds the evidence does not establish that the gap was large enough for an
employee’s finger to get caught (Tr. 190). It was large enough, however, to snag clothing.
If an employee’s clothing were snagged on the shaft or in the gap between the shaft and
the motor, an employee could be seriously injured. The shafts rotate at 1750 rpm and could pull
an employee in before the employee could react. The motor was one horsepower (Tr. 57). This
is enough to break a bone or amputate a finger (Tr. 57, 101). There is no emergency stop button
on the machine. Therefore, if an employee’s clothing were snagged on the shaft, he would have
to find a way to flip the off switch located behind the machine (Tr. 226). The evidence
establishes the violation was serious.
While serious, the evidence demonstrates the probability of an incident and therefore its
gravity is low. When operated normally, employees have no reason to contact the shaft.
Although the purpose of the Act is to prevent the first accident, that there is no history of any
incident demonstrates that the gravity was low. Additionally, the operators wore four layers of
gloves (including Kevlar gloves) covered by wire mesh gloves when operating the saws (Tr.
175). These protective gloves substantially reduced the risk of injury in case of hand contact
with the shafts. Rushing demonstrated the protection provided by the gloves by holding them
directly against the operating saw blade (Exhs. R-6 & R-7). Rushing testified he put
considerable pressure on the gloves, yet it took several seconds before the saw cut through them
(Tr. 184-185).
Although the gloves protect the operators’ hands from cuts or bruises from the shaft or
the gap, they do not protect the operators from the hazard of getting an article of clothing
snagged. In this regard, the operators wore aprons which were designed to break away (Tr. 120-
121). The CSHO theorized this exacerbated the hazard because as the apron tore it exposed the
clothing below allowing it access to the shaft and the hazard of getting snagged (Tr. 121). This
may be a theoretical possibility, but the likelihood of such an incident seems at best remote.
Indeed, the Secretary produced no evidence to support the CSHO’s speculative theory. The
CSHO also observed an operator wearing what appeared to him to be a scarf to keep warm (Tr.
72; Exh. G-8). The CSHO was concerned that if the scarf snagged on the shaft, it could result in
8
a broken neck (Tr. 92). However, saw operator Mary Moffett explained the object was not a
scarf, but brown paper towels. She did not know the reason why the employee was wearing the
paper towels but surmised it was to protect the employee from blood splatter from the chickens
(Tr. 281). While the work rules do not specifically prohibit employees from wearing scarves,
they are prohibited from wearing loose clothing (Tr. 227).
The Secretary also posits an employee may slip or be pushed into the unguarded shaft.
The operators’ feet are stationary during the cutting operation (Tr. 128, 172). The cutting
operation produces some blood, liquid and debris which could create a slipping hazard (Tr. 95,
99, 223). To reduce slipping however, Sanderson used Tuff Coat, a slip resistant concrete. A mat
was placed on top of the concrete which the CSHO testified reduced but did not eliminate the
risk of slipping (Tr. 128). The operators wear slip-resistant work shoes or athletic shoes (Tr.
172). Sanderson also erected a handrail made with large silver pipes as a barrier to prevent
inadvertent contact between the operator and other people (Tr. 173; Exhs. G-1, G-8). An
accident could result in serious injury, but the likelihood of an accident is very low. Therefore,
the undersigned finds the violation to be of low gravity.
Citation 1, Item 2b
Citation 1, Item 2b, alleges a violation of 29 C.F.R. §1910.219(c)(4)(i) on the grounds
that a shaft end protruding from a gear box at the tender scoring station #1 was not smooth,
causing an employee’s apron to be torn several times a week. The standard provides that
[p]rojecting shaft ends shall present a smooth edge and end and shall not project
more than one-half the diameter of the shaft unless guarded by nonrotating caps
or safety sleeves.

   In the deboning area, the CSHO observed an unguarded shaft end protruding from a gear

box at the tender scoring station #1 (Tr. 75; Exhs. G-10 - G-13). The CSHO estimated the shaft
rotated slowly at about 14-16 rpm (Tr. 78). Safety manager Rushing estimated the rotation at 40
rpm (Tr. 199). The shaft was approximately 2.5 feet above the ground (Tr. 81). Employees work
on a raised platform approximately 8 inches off the floor (Tr. 81; Exh. G-13). An employee
interviewed by the CSHO told him that when she steps on the platform she has to lean towards
the side nearest the unguarded rotating shaft end (Tr. 79). The CSHO observed the employee
either leaning or sitting on the drip tray next to the unguarded shaft end (Tr. 79, 81-82; Exhs. G-

                                             9

13, G-15). The work area was small and there was no barrier between the employee and the
shaft end while working (Tr. 79; Exh. G-13).
According to the CSHO, the shaft end was not smooth because there was a “key” on top
of the shaft which locks the shaft to the gearbox (Tr. 105; Exhs. G-11, G-12). He estimated the
key protruded approximately 3/8 inch from the surface of the shaft (Tr. 77). Safety manager
Rushing disagreed and estimated the protrusion was just a bump and no thicker than a piece of
paper or a hair and testified the key had been ground down and was covered by rust (Tr. 194).
The Secretary argues the standard applies because it only exempts shafts with a smooth
edge and end. He asserts the key on the end projected from the shaft therefore the shaft was not
smooth. Sanderson asserts the shaft was smooth, as the key was ground down to a hairsbreath
and did not present a catch hazard to employees (Tr. 195).
When interpreting regulations words should be given their plain meaning. Usury v.
Kennecott Copper Corp., 577 F.2d 1113, 1118 (10th Cir. 1977); Bunge Corp., 12 BNA OSHC
1785, 1791 (No. 77-1622). According to the Merriam-Webster Dictionary smooth means
“having a continuous even surface.” Whether the projection was 3/16 or 3/8 of an inch, the shaft
was not “smooth.”
Sanderson’s assertion that the standard is not applicable because there was no hazard
fails. As with Item 2a, the standard here presumes a hazard when a shaft end or edge is not
smooth. The shaft was not smooth and was required to be guarded. It was not. The evidence
establishes employees were exposed to contact with the shaft end. They were working in
proximity to the shaft end. There was no barrier between the employee and the shaft end.
Violation of the standard is established.
The evidence establishes Sanderson knew the shaft end had a protruding key, that it was
unguarded, and that employees worked in proximity to the shaft end. Ward testified that as part
of his job he oversees safety inspections at the Laurel facility and conducts weekly audits to
ensure the facility is OSHA compliant (Tr. 271-272). Therefore, Ward knew or with the exercise
of reasonable diligence could have known of the unguarded shaft end. Pride Well Service, 15
BNA OSHC, 1809,1814 (No 87-692, 1992). Ward’s knowledge is imputed to Sanderson. Jersey
Steel Erectors, 16 BNA OSHC at 1164. Knowledge of the violation is established. The
Secretary has made a prima facie case of the violation cited in Item 2b.
10
 The Secretary cited the violation as serious. The CSHO testified that if a scarf, jacket, or
smock became tangled by the key the material would start turning and twisting and would likely
result in a broken bone (Tr. 105-106). He opined that if the operator’s clothing was snagged it
could pull the operator backwards causing the employee to fall from the raised platform,
potentially resulting in a concussion or broken bones (Tr. 109).
The undersigned finds that if an employee’s clothing were to become snagged the slow
rotation of the shaft and its proximity to the employee would give the employee time to react and
free the snagged garment. The small protrusion together with the short length of the shaft makes
it unlikely any garment could get sufficiently tangled to pull an employee off his or her feet.
Safety manager Rushing tested a shaft similar to the one cited by the Secretary, except the key in
the tested shaft protruded substantially more than the one on the cited shaft (Tr. 198-199). In the
test, Rushing took a smock and attempted to snag it on the shaft. Despite placing considerable
pressure on the smock and moving it around to various locations on the shaft it would not snag
(Tr. 199; Exh. R-10). As a protective measure, the smock was designed to breakaway if snagged
(Tr. 120). A preponderance of the evidence shows that if an employee contacted the shaft the
small raised area would cause nothing more serious than a cut or a bruise. Therefore, the
violation is an other than serious violation rather than a serious violation as alleged by the
Secretary.
In reaching this conclusion, the undersigned finds the gravity of the violation was lower
than determined by the Secretary in calculating the penalty. The citation was partially predicated
on the erroneous assumption that smocks were torn on the shaft (compare citation with Tr. 110-
112). However, the evidence fails to establish smocks had been caught on the shaft (Tr. 110-112,
201). The CSHO was told the operator tore four to five aprons a week. He assumed they were
torn on the rotating shaft (Tr. 110). The evidence reveals the smocks were torn on the drip pan
(Tr. 209). The CSHO admitted he might have misunderstood why the smocks tore and testified
that in his view the probability of an accident was lower than what he determined when the
proposed penalty was calculated (Tr. 111-112). Therefore, the undersigned finds a lower gravity
is appropriate for this violation.

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Penalty
Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the
Commission give "due consideration" to four criteria: the size of the employer's business, the
gravity of the violation, the employer's good faith, and its prior history of violations. Specialists
of the South, Inc., 14 BNA OSHC 1910, 1910 (No. 89-2241, 1990). These factors are not
necessarily accorded equal weight; generally speaking, the gravity of a violation is the primary
element in the penalty assessment. J. A. Jones Construction Company, 15 BNA OSHC 2201,
2214 (No. 87-2059, 1993) (citing Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691,
1992); Astra Pharmaceutical Prods., Inc., 10 BNA OSHC 2070 (No. 78-6247, 1982)).
Sanderson is a large corporation. It employs 500 people at the Laurel facility and has
approximately 11,000 employees worldwide. Therefore, no reduction for size was provided (Tr.
113). The CSHO testified that when calculating the penalty he gave Sanderson a 25% reduction
because the company had a good written safety program and exhibited good faith toward safety.
He also reduced the proposed penalty because the company had no high gravity, willful or
repeated violations over the past five years (Tr. 114-115). Therefore, the Secretary proposed a
combined penalty of $4,050.00 for both Items 2a and 2b.
When proposing the penalty, the Secretary assumed that both items were serious and that
Item 2a was of higher gravity. The Secretary considered Item 2a to be of high gravity due to
severity of potential injury, even though he found there to be a “lesser” probability of an accident
(Tr. 101). The CSHO admitted he overestimated the gravity of Item 2b because he erroneously
assumed the smocks were torn on the shaft end (Tr. 111). He also admitted he overestimated the
probability of an accident. On reconsideration, the CSHO testified the violation should have
been considered to be of “lesser” probability (Tr. 111). The undersigned agrees.
A preponderance of the record evidence establishes Item 2a is serious but of low gravity,
and Item 2b is other than serious and of low gravity. A substantial reduction in the penalty,
therefore, is appropriate. Considering the evidence and the statutory factors, a total penalty of
$1,500.00 is appropriate for items 2a and 2b.

                                             12

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based on the foregoing decision, it is ORDERED that:
1. Item 2a of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.219 (c)(2)(i) is
affirmed;
2. Item 2b of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.219(c)(4)(i) is
affirmed as other than serious; and
3. A combined penalty in the amount of $1,500.00 is assessed.

   SO ORDERED.



                                                        _/s/ Sharon D. Calhoun_________
                                                        SHARON D. CALHOUN

Date: December 29, 2014 Judge

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