Berardi's Fresh Roast

Plain-English summary

Berardi's Fresh Roast used an automatic machine to fill, heat-seal, and cut foil coffee bags. Bags regularly stuck near the machine's heated jaws and knife, and operators often reached through a gap beneath the interlocked doors to remove them while the machine kept running. An operator's fingertip was caught, causing tissue loss and loss of his fingernail. The judge found that the doors were inadequate guards because employees could easily bypass them and enter the point of operation during the operating cycle. Management was on the shop floor daily and should have discovered the longstanding practice through reasonable inspection and supervision. The employee-misconduct defense failed because the citation concerned inadequate guarding and because Berardi's lacked a communicated rule, monitoring program, and effective discipline. The serious item was affirmed with a $4,988 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: Serious point-of-operation guarding item affirmed; $4,988 penalty assessed.
• Key point: An interlocked machine door is inadequate when employees can routinely reach beneath it into operating jaws and cutting parts.

Full text (OSHRC public release)



Document

United States of
America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90,
100 Alabama Street, S.W.

Atlanta, Georgia
30303-3104

Secretary of
Labor ,

Complainant,

v.

OSHRC Docket
No.
1 6-1663

Berardi’s Fresh
Roast ,

Respondent.

A ppearances:  

Elizabeth
Ashley ,
Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta,
Georgia

For the
Secretary

Brian J. Leneghan ,
p ro
se,
Berardi’s Fresh Roast

For the Respondent

BEFORE:    Administrative Law Judge Heather A.
Joys

DECISION
AND ORDER

In August of 2016, the
Cleveland Area OSHA Office initiated an inspection of Berardi’s Fresh Roast
(Berardi’s) after receiving a complaint alleging an employee had suffered an
injury the previous month while operating a machine at the company’s facility in
North Royalton, Ohio. The inspection was conducted by Compliance Safety and
Health Officer (CSHO) Peter Grakauskas . CSHO
Grakauskas
concluded the machine on which the employee had been injured was not
properly guarded and the Secretary issued a
Citation and Notification of Penalty to Berard i’s alle g ing a
serious violation of the machine guarding standard at 29 C.F.R.
§
1910.212(a)(3)(ii). The
Secretary proposed a penalty of $4988 .00
for the citation. Berardi’s timely contested
the citation brin g ing this matter
before the Occupational Safety
and Health Review Commission pursuant to § 10(c) of the Occupational Safety and
Hea lth Act of
1970, 29 U.S.C. § 651 -678
(the Act).

I
held a hearing in this matter on February 14, 2017, in
Cleveland, Ohio. I gave the parties the opportunity to file
supplementary
post - hearing written
statements .
Neither party chose to do so,
resting on the testimony and arguments made at the hearing.

For the reasons discussed
below, t he citation is
affirmed and a penalty
$4988 is assessed.

JURISDICTION

At the hearing, the
parties stipulated jurisdiction of this action is conferred upon the Commission
pursuant to §
10(c) of the Act
(Tr. 8) . The parties also
stipulated that at all times relevant to this action, Berardi’s
was an employer engaged in a business affecting interstate commerce
within the meaning of §
3(5) of the Act, ( Tr. 8-9 ) . Based on the parties’
stipulations and the facts presented, I find Berardi’s
is an employer covered under the Act and the Commission has jurisdiction
over this proceeding.

BACKGROUND

Berardi’s is a small,
family - owned business located in
North Royalton, Ohio. It is operated by brothers Sean and Brain
Leneghan . 1 The company roasts and
packages
coffee
for end users . It employs between 10
and 16 individuals (Tr. 102).

Among the equipment at Berardi’s
facility is a Hayssen
Sup e ra
bagging machine 2
(the Hayssen )
(Tr. 16). This machine is used to fill and seal individual foil bags of
coffee
called “fractional packs.”
(Tr.
16 ,
83 ). The operator of the
machine feeds
a “foil” through the machine.
A foil is a
long tube of the bagging material. The operator sets the size
of bag to be filled
and starts the machine
(Tr. 120). The machine fills the
foil
with a set amount of product . The
jaw s
of the “ end seal
assembly ” 3
close ,
crimping and heat seal ing
the
foil ,
creating a bag of product
(Tr. 20). A knife separates the bag
from the foil (Tr. 20). The bags drop from the end
seal assembly into a bin located on the floor directly below the end
seal assembly (Tr. 16-17, 25;
Exh .
C-5). The machine has a counter
that records the number of bags completed. The operator knows to stop the
machine when it reaches the number of bags for the order being filled.
The
Hayssen
will run continuously until stopped by the operator (Tr. 120-21).
Berardi’s
runs the Hayssen
on average two days per week (Tr. 156).

At the time of the accident, the
primary operator of the Hayssen
was the injured employee. He has been with the company since 2011 and
worked with the Hayssen
since that time. Tim Allington
also operated the Hayssen . Allington
has been with the company over 20 years and was present when the
Hayssen
was installed (Tr. 81). Allington
trained the injured employee to operate the machine (Tr. 126). This
training took approximately one week and consisted of a hands-on demonstration
and observation (Tr. 126). The training did not include a review
of
the
operator’s manual, although the injured employee was aware of the availability
and location of it (Tr. 127).

It is
undisputed
that ,
on occasion, the bags
stick to the
jaws of the end seal assembly and do not drop into
the
bin, causing the foil above to start bunching up (Tr. 86, 128-30). The
frequency with which this occurs varies greatly, but can happen multiple times
per day (Tr. 82, 129). While the
Hayssen
is running, the operator stands in front of the machine (Tr. 23). The
operator is separated from the operating mechanism by two transparent doors (Tr.
24; Exh .
C-1). The doors are interlocked
such that when open, the Hayssen
stops (Tr. 24). B oth
Allington
and the injured employee stated the proper procedure when
a bag
sticks is to open the interlocked
doors, stopping the machine from running, take out the stuck bag, brush off the
jaws, and restart t he machine
(Tr.
97-99, 128, 131-32). Both also testified they
do not always follow this procedure. Rather, when a bag gets
stuck, they will reach under the door
through a gap between the bottom of the doors and the top of the
bin 4
and
grab the bag (Tr. 97, 131). Because the interlocked doors are not opened,
the Hayssen
continues to run. Doing so alleviates the need to restart the machine
(Tr. 32). Allington
testified although he generally follows the proper procedure, he has been
circumventing the interlocked doors for many years and continued to do so after
the accident (Tr. 98-99; see also Tr. 31-33).

Accord ing to the injured
employee, he was circumventing the interlocked doors
when
he was injured. He testified
several bags had stuck to the jaws on the day of the accident. On each of these
occasions, he reached under the interlocked doors to grab the stuck bag.
The
“ second
or third ”
time doing so,
he
“reached up too high and got caught.” (Tr. 132). He
suffered an
avulsion of the fingertip
and lost his fingernail (Tr. 132). He received emergency room treatment and
returned to the facility that same day. Berardi’s management told him to take
several days off to heal . He
returned to work the
following Monday (Tr. 133).

Approximately
one month after the accident, the Cleveland Area OSHA Office received a
complaint alleging an employee had suffered an amputation injury. CSHO
Grakauskas
was assigned to conduct the inspection. His investigation involved a walk
around inspection of the facility and short observation of the
Hayssen
in operation (Tr. 15-16). He took photographs and measurements of
the Hayssen . He also interviewed
employees, including Allington .

Based upon his observations,
CSHO Grakauskas
recommended Berardi’s be issued a citation for violation of the standard
at §
1910.212(a )( 3)(ii) for failure to
guard the end seal assembly, including the crimping jaw and knife, of the
Hayssen . CSHO
Grakauskas
concluded because employee s
were able to and routinely did reach
under the interlocked doors to grab bags stuck to
the
end
seal assembly ,
they were exposed to potential lacerations or crushing injuries,
including amputation. He concluded Berardi’s should have been aware of this
activity, given the frequency with which employees did it. Berardi’s timely
contested the citation, bringing this matter before the Commission.

THE
CITATION

The Secretary alleges
Berardi’s violated the standard at § 1910.212(a )( 3)(ii). That standard
requires:

The point
of operation of machines
whose operation exposes an employee to injury, shall be guarded. The
guarding device shall be in conformity with any appropriate standards therefor,
or, in the absence of applicable specific standards, shall be so designed and
constructed as to prevent the operator from having any part of his body in the
danger zone during the operating cycle.

The
citation alleges:

On or about August 16,
2016, the employer failed to ensure that effective machine guarding was in place
on the Hayssen
Supera
bagging equipment (model number 12-16r coffeepac ). The interlocked door on
the bagging portion of the equipment did not fully extend to the floor to
prevent employees from reaching under it. Employees routinely place their arms
on the underside of the machine to remove material and product. This act exposes
them to the point of operation where the sealing of the bag takes
place.

The Secretary alleges
employees were exposed to laceration, crushing, and amputation injuries at the
end seal assembly when removing stuck bags.

DISCUSSION

The Secretary has the
burden of establishing the employer violated the cited standard.
To prove a
violation of an OSHA standard, the Secretary must show by a preponderance of the
evidence that (1) the cited standard applies; (2) the employer failed to comply
with the terms of the cited standard; (3) employees had access to the
violative
condition; and (4) the cited employer either knew or could have known
with the exercise of reasonable diligence of the violative
condition. JPC
Group, Inc. ,
22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Applicability
of the Standard

Section
1910.212(a )( 3)(ii)
is found in Subpart
O—Machinery and Machine Guarding. Section 1910.212 is
captioned “General requirements for all machines.” This standard applies
to all
machines
not covered by a more specific standard. 5

The guarding requirements of
§
1910.212(a )( 3)(ii)
apply
when operation of the machine
exposes an employee to injury
at the point of operation .
The
point of operation is defined in § 1910.212(a )( 3)( i ) as the “ area on a
machine where work is actually performed upon the material being
processed .” The
work performed by the Hayssen
is the filling and creating of fractional packs or bags of coffee. Bags
are created at the end seal assembly. The end seal assembly is the point of
operation as that term is used in the sited standard.

The issue for resolution is
whether employees were exposed
to injury
at the end seal assembly during operation of the
Hayssen .
In
Rockwell
Inter’l
Corp.,
9 BNA OSHC 1092 ,
1097
(No. 12470, 1980) ,
the Commission address ed
employee exposure to hazards associated with machine
operation
under § 1910.212(a )( 3)(ii) . The
Commission held,

The mere
fact that it was not impossible for an employee to insert his hands under the
ram of a machine does not itself prove that the point of operation exposes him
to injury.
Whether
the point of operation exposes an employee to injury must be determined based on
the manner in which the machine functions and how it is operated by the
employees.

Id . at
1097-98. In its
subsequent decision in Fabricated
Metal Products, Inc ., 18 BNA
OSHC 1072, 1074 (No. 93-1853, 1997), the Commission further clarified,

[I] n order
for the Secretary to establish employee exposure to a hazard
[he]
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, as we stated in
Rockwell , the
inquiry is simply not whether exposure is theoretically possible. Rather, the
question is whether employee entry into the danger zone is reasonably
predictable.

In both
cases, the Commission
vacated
the citation on the grounds the likelihood
of contact was too remote to establish employee exposure. Such is
not the case here.

In the instant case, the undisputed
evidence established bags routinely stick
to
the end seal assembly. Employees
use one of two methods to remove the stuck bag – they either open the
interlocked doors or reach under the doors and place their hands
within
inches
of
the point of operation while the machine continues to run. The fact both
operators of the Hayssen
admitted to doing so on more than one occasion, over a period of years,
establishes entry into the zone of danger was reasonably predictable. The
jaws of
the end seal
assembly heat to approximately 200 degrees and clamp shut to seal the bags; a
knife sharp enough to cut
skin
cuts the bag at the point of operation
(Tr. 20 ;
Exh .
R-7 ) . The
Secretary established Berardi’s employees were exposed to injury at the point of
operation of the Hayssen
during the machine’s operation. The sited standard
applies.

Violation
of the Terms of the Standard

It is undisputed there is no guard
covering the end seal assembly. Once an employee reaches under the interlocked
doors, nothing prevents contact with the end seal assembly, including the knife.
It is also undisputed an employee can circumvent the interlocked doors
by
simply reaching under them. Because they can be circumvented, the interlocked
doors are inadequate guarding under the standard. The terms of the standard
were violated.

Employee
Exposure

As previou sly addressed, nothing
prevents an employee
from placing his hand
at the point of operation during machine operation. Employees have done
so for many years preceding the issuance of the citation and continued to do so
even after an employee was injured (Tr. 31, 33). Employee exposure to the hazard
is established.

Employer
Knowledge

The
Secretary has the burden to establish Berardi’s was aware of the
violative
condition. The evidence does not
establish Berardi’s had actual knowledge of the hazard. 6
Therefore,
the Secretary must establish Berardi’s had constructive knowledge of the hazard.
To do so, the Secretary must
show Berardi’s
could
have known of the
hazardous condition with
the exercise of reasonable diligence. Dun
Par Engineered Form Co ., 12 BNA OSHC 1962,
1965-66 (No. 82-928, 1986). “Reasonable diligence”
includes the employer’s “obligation to inspect the
work area, to anticipate hazards to which employees may be exposed, and
to take measures to prevent the occurrence.” Frank
Swidzinski
Co. , 9
BNA OSHC 1230, 1233 (No. 76-4627, 1981). The Commission has held
“[r] easonable
steps to monitor compliance with safety requirements are part of an
effective safety program.” Southwestern
Bell Tel. Co. , 19 BNA OSHC 1097, 1099
(No. 98-1748, 2000 (citations omitted), aff’d
without published opinion , 277 F.3d 1374 (5th Cir.
2001). I find the evidence establishes Berardi’s had
constructive knowledge of the
violative
condition .

Allington
testified both Sean and Brian Leneghan
are on the shop floor daily (Tr. 103, 136). Allington
testified both observe him working “all year round.”
(Tr.
106).
Both
Allington
and the injured employee were candid in their testimony
that they had been circumventing the interlocked doors for many
years. Allington ’s
admission he continued to do so even after the accident,
suggests employees were not concerned about the hazard to which they may have
been exposed. Both testified bags would stick with some regularity and at times
frequently. By reaching under the interlocked doors, the operator avoided having
to reset the machine. A reasonable inference can be drawn from this evidence
that, rather than an isolated or aberrational event, employees circumvented the
interlocked doors often. Given that management was
on the shop floor every day, Berardi’s should have been aware of the hazardous
condition.

Berardi’s responds that
when
the manufacturer installed the machine in 1992, it represented the guarding met
“all their safety parameters, that it meets all their safety features.” (Tr.
154; see also Exh .
R-5;
R-6).
Berardi’s made no alterations to the Hayssen
since its installation. Berardi’s argues it did all that was reasonable
under the circumstances. I disagree.

Even if the manufacturer
had represented to Berardi’s the machine met certain
safety
standards , it remained Berardi’s
responsibility to ensure the safety of its own employees. The materials supplied
by the manufacturer upon which Berardi’s
relies contain a
caveat
stating the manufacturer does not guarantee
it meets all “federal, state or local code[s].” ( Exh .
R-6). Further, the operator’s
manual placed into evidence by Berardi’s warns against the circumventing of
guards and points out the hazards associated with the end seal assembly
( Exh .
R-7). It was incumbent upon
Berardi’s to ensure guards were adequate and could
not be circumvented . It did not. Berardi’s had no rule
specifically preventing the circumventing of the interlocked doors that it
communicated to employees. There is no evidence Berardi’s made any effort to
ensure employees were following proper procedures through inspections or
performance reviews. Berardi’s failed to
exercise reasonable diligence. Had it done so, it would
have been aware of the violative
condition.   

Classification

The Secretary alleged the
violation was serious. A violation is serious when “there is a substantial
probability that death or serious physical harm could result” from the hazardous
condition at issue. 29 U.S.C. §
666(k) .
The Secretary need not show that there was a substantial probability that
an accident would occur; only that if an
accident did occur, death or serious physical harm would result. As the
Third Circuit has explained:

I t is well-settled that,
pursuant to § 666(k) , when the violation of a
regulation makes the occurrence of an accident with a substantial probability of
death or serious physical harm possible , the employer has
committed a serious violation of the regulation. The “substantial probability”
portion of the statute refers not to the probability that an accident will occur
but to the probability that, an accident having occurred, death or serious
injury could result, even in those cases in which an accident has not occurred
or, in fact, is not likely to occur.

Secretary
of Labor v. Trinity Industries , 504 F.3d 397, 401 (3d
Cir. 2007)
(internal quotation marks and citations omitted);
See
also, Phelps
Dodge Corp. v. OSHRC , 725 F.2d 1237, 1240
(9 th
Cir. 1984) ; Mosser
Construction , 23 BNA OSHC 1044, 1046
(No. 08-0631, 2010) ; Dec-Tam
Corp. , 15 BNA
OSHC 2072, 2087-2088 (No. 88-0523, 1993) . The likelihood of an
accident goes to the gravity of the violation, which is a factor in determining
an appropriate penalty. J.A.
Jones Constr. Co. , 15 BNA OSHC
2201,
2214
(No. 87-2059 ,1993 ) .

It is undisputed an employee could,
and did, sustain a serious injury from contact with the end seal assembly.
Berardi’s makes much of the fact the injury is
referred to in
parts of CSHO Grakauskas’s
report as
an amputation, when the injured employee sustained an avulsion or loss of
tissue. Whether the employee sustained a
complete loss of his finger or simply the tip is not material to any issue
before me. The undisputed evidence established an employee could sustain a
severe laceration
( Exh .
R-7) . The evidence also
established the potential for an employee to receive a crushing injury from the
jaws
( Exh .
R-7) . The jaws heat up, exposing
employees to a potential burn hazard. The violation was
serious.

Unpreventable
Employee Misconduct

Berardi’s
argued any circumventing of the interlocked doors is contrary to proper
operation of the Hayssen
and, therefore, any resulting violation is the result of unpreventable
employee misconduct. To prevail
on the affirmative defense of unpreventable employee misconduct, an employer
must show that it has (1) established work rules designed to prevent the
violation, (2) adequately communicated those rules to its employees, (3) taken
steps to discover violations, and (4) effectively enforced the rules when
violations have been discovered. See,
e.g.,
Stark
Excavating, Inc. ,
24 BNA
OSHC 2218 (Nos.
09-0004 and 09-0005, 2014), citing
Manganas
Painting Co. , 21 BNA
OSHC 1964, 1997 (No. 94-0588, 2007). The
affirmative defense of employee misconduct applies in situations in which
the behavior of the employee , not the
existence of the violative
condition, is at issue.
The
Commission has long-recognized that OSHA’s machine guarding standards were
designed to protect employees from common human errors such as “neglect,
distraction, inattention or inadvertence of an operator[ .]”
Slyter
Chair, Inc. , 4 BNA
OSHC 1110, 1112 (No. 1263, 1976). “The
plain purposes of the standard are to avoid dependence upon human behavior and
to provide a safe environment for employees in the machine area from the hazards
created by the machine’s operation.” Akron
Brick & Block Co. , 23 BNA
OSHC 1876, 1878 (No. 4859, 1976).
Here, the
violative
conduct alleged is the inadequacy of the guard on the
Hayssen , not the
circumventing of the interlocked doors by the employees.

Even
if Berardi’s
could properly raise the affirmative
defense of employee misconduct in this
matter ,
it
has failed to prove each element of the defense. Berardi’s
presented no evidence of a safety and health program at its facility. Employees
were aware of some safety rules posted at the time clock (Tr. 99, 135). But
there was no evidence of the contents of those rules in the
record.
Berardi’s presented no evidence of a work rule specifically prohibiting the
conduct of Allington
and the injured employee
that was communicated to employees .
The
Hayssen
has warning signs affixed to all sides, but none specifically address the
conduct at issue ( Exh .
R-1).
Nor was
there testimony that during his training of the injured employee
Allington
communicated such a prohibition. The
operator’s manual for the Hayssen
contains a prohibition against “[r] eaching
over, under, or through a guard, blocking it open, or tampering with a
guard interlock”
and states
“Guard interlocks and fixed barrier guards are there to protect you. Do not
alter them.” ( Exh .
R-7). Although
this might be a sufficiently specific rule, the injured employee testified he
had not reviewed the operator’s manual (Tr. 127). Berardi’s
presented scant evidence of a
program to
monitor or discipline employees.
Allington
testified he received
an annual review, but he did
not “pay
attention to them” and could not “remember what it looks like.” (Tr.
105-06).
Leneghan
testified the company has a disciplinary policy, but admitted the injured
employee was never disciplined for his conduct. His testimony suggesting
changing
the duties of
the injured employee after the accident was discipline strained
credulity .
Berardi’s
failed to establish the violation was the result of unpreventable employee
misconduct.

PENALTY
DETERMINATION

The Secretary proposed a
penalty of $ 4988.00
in this case. The Commission, in assessing an appropriate penalty, must
give due consideration to the gravity of the violation and to the size, history
and good faith of the employer. See
§
17(j) of the Act. The Commission is the
final arbiter of penalties. Hern
Iron Works, Inc. , 16 BNA OSHC 1619, 1622,
(No. 88-1962, 1994), aff’d , 937 F.2d 612 (9th Cir.
1991) (table); see
Valdak
Corp. ,
17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for
penalty amounts but places no restrictions on the Commission’s authority to
raise or lower penalties within those limits.”), aff’d , 73 F.3d 1466 (8th Cir.
1996). In assessing a penalty, the Commission gives due consideration to all of
the statutory factors with the gravity of the violation being the most
significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform
Inc. ,
19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d , 34 F.
App’x
152 (5th Cir. 2002) (unpublished). “Gravity
is a principal factor in a penalty determination and is based on the number of
employees exposed, duration of exposure, likelihood of injury, and precautions
taken against injury.” Siemens
Energy and Automation, Inc., 20 BNA
OSHC 2196, 2201 (No. 00-1052, 2005).

The
evidence establishes at least two employees were exposed to the hazard on a
weekly basis. Because employees placed their hands near the point of operation
frequently and had been doing so for many years, the
occurrence of only one
injury indicates
the
likelihood of injury is low. The severity of the injury is
most
probably a
laceration ,
similar to that sustained by the injured employee, although a more
significant injury could result. A moderate
gravity based penalty is warranted. Evidence suggests Berardi’s management was
less than forthcoming during the inspection (Tr. 44; R-2). The company presented
no documentary evidence of a comprehensive safety and health program. I find
Berardi’s is not entitled to a reduction in the gravity based penalty for good
faith. The company is entitled to a reduction based on its small size and lack
of past citations. Based on all these considerations, a penalty of
$4988 .00
is assessed.

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The foregoing decision
constitutes the findings of fact and conclusions of law in accordance with Rule
52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing
decision, it is ORDERED that:

1. Item 1, Citation 1,
   alleging a violation of 29 C.F.R. § 1910.212(a )( 3)(ii) is affirmed as a
   serious violation and a penalty of $4988.00 is assessed.

SO ORDERED .

/s/

HEATHER A.
JOYS

Administrative Law
Judge

Atlanta,
Georgia

Dated:
March 24 ,
2017

"

1
Brain
Leneghan
represented Berardi’s at the hearing and presented testimony. Sean
Leneghan
did not appear.

2 A
diagram of the machine is contained in Exhibit C-3. Photographs of the machine
from various angles are contained in Exhibits C-1; C-2; and C-4.

3
The term
“ end seal
assembly ”
is taken from the machine
diagram at Exhibit C-3.

4
The doors do not extend
all the way to the floor. T here is a 19 ¾ inch space
between the bottom of the doors and the floor through which the bin can be slid
(Tr. 27; Exh .
C-5). There is also a 6 ¾ inch
gap between the top of the bin and the bottom of the door (Tr. 27). The distance from the
bottom of the door to the end seal assembly is approximately 7 inches (Tr.
29).

5 Nothing
in the record suggests a more specific standard is applicable to the
Hayssen
and I can find none.

6
The evidence presented was
insufficient to show Allington
was a supervisor such that his knowledge of the violative
condition can be imputed to Berardi’s. The company has no system
of employee hierarchy (Tr. 102). Employees do not have formal job titles.
Allington
testified he has no supervisory authority over other employees and cannot
hire, fire, or discipline them
(Tr. 101-02).