AJM Packaging Corporation

Read the official release (oshrc.gov)

Plain-English summary

An AJM Packaging adjuster suffered a partial finger amputation when a raised scrap chute fell while he was clearing a paper jam from a paper-product machine. OSHA alleged that lockout/tagout procedures were required to control the chute's stored gravitational energy. The Commission agreed that the lockout/tagout standard applied even though the hazardous energy accumulated only after the employee lifted the chute during servicing. It nevertheless found no constructive knowledge because AJM had prohibited raising the chute, trained employees on that rule, continuously monitored the production floor, and documented extensive discipline, while the proven violations of the rule were brief and difficult for supervisors to detect. The Commission affirmed the judge and vacated the remaining repeat-citation instance.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(i).
• Outcome: Remaining instance of the repeat lockout/tagout citation vacated.
• Key point: Lockout/tagout can apply to energy created during servicing, but the Secretary must still prove the employer knew or should have known employees engaged in the activity that triggered the required procedure.

Full text (OSHRC public release)

United
States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington,
DC� 20036-3457�

�SECRETARY OF
LABOR,

Complainant,

v.

AJM PACKAGING CORPORATION,

Respondent.

OSHRC
Docket No. 16-1865

ON BRIEFS:

Brian A. Broecker, Attorney; Heather Phillips, Counsel
for Appellate Litigation; Edmund C. Baird, Associate Solicitor of Labor for
Occupational Safety and Health; Kate S. O�Scannlain, Solicitor of Labor; U.S.
Department of Labor, Washington, D.C.

For the Complainant

Brent I. Clark, Esq.; Adam R. Young, Esq.; Seyfarth
Shaw LLP, Chicago, IL

For the Respondent

DECISION

Before:�
ATTWOOD , Chairman; LAIHOW,
Commissioner.

BY
THE COMMISSION:

AJM Packaging Corporation manufactures
paper plates and bowls at its facility in Vineland, New Jersey.� In May 2016,
an employee suffered an amputation injury while clearing a paper jam on one of
the facility�s machines.� As a result of the incident, the Occupational Safety
and Health Administration inspected the facility and issued AJM a one-item,
four-instance repeat citation alleging a violation of a provision of the
lockout/tagout (LOTO) standard, 29 C.F.R. � 1910.147(c)(4)(i). [1] �

Following a hearing, Administrative Law
Judge William S. Coleman vacated the citation in its entirety. �Only Instance
(d) of the alleged violation is at issue before the Commission.� For the
reasons discussed below, we affirm the judge and vacate Instance (d).

BACKGROUND

To produce the paper products manufactured
at AJM�s facility, the company uses machines referred to as �Peerless Cutting
Machines� or �PCMs.�� In 2016, AJM operated about 33 PCMs at its facility,
which were arranged in the central production area, the �floor,� in two
parallel rows.� The output end of every machine faced toward a center aisle.� Employees
known as �adjusters� operate the PCMs and perform any necessary machine adjustments,
such as clearing paper jams, to ensure that the paper products are formed
correctly.� Between eight and twelve adjusters typically work each shift, [2] and
experienced adjusters normally operate three or four PCMs at a time.� Adjusters
operate the PCM using a control panel located on the �operator�s side� of the
machine. [3]

The production process begins with the PCM�s
mechanical paper feeder pulling a sheet of paper into the cutting, or
�blanking,� die of the machine.� The cutting die then cuts five holes through
the sheet of paper to produce five circle-shaped �blanks,� which the PCM then forms
into plates or bowls.� After the cutting die creates the blanks, the paper remnant,
or �scrap,� drops a short distance onto the PCM�s scrap chute.� A burst of
forced air from an air nozzle located at the end of the scrap chute on the
operator�s side expels the scrap from the chute.� The scrap blows out of the PCM
through an opening on the non-operator, or �discharge,� side of the PCM, where
it falls into a bin positioned below the opening.

The scrap chute on each PCM is a piece of
solid steel sheet metal that weighs approximately 30 pounds; it is about five
feet long and runs horizontally across the width of the PCM from the operator�s
side to the discharge side.� There are two bends in the scrap chute�one
right-angle bend and one approximate 30-degree angle bend�that give the chute a
shape that resembles the letter �J� when viewed from the operator�s side.� When
the scrap chute is in its operating position, its �J� shape is canted clockwise
about 45 degrees, so that the interior angles of the scrap chute form a cradle
onto which the scrap paper falls.�

The scrap chute is not powered by any
device or mechanism. �It is possible, however, to pivot the scrap chute upward by
hand by reaching through a guarded opening on the operator�s side of the
machine or by reaching through an opening below the rear access doors.� When in
its canted operating position, the scrap chute�s own weight keeps it from
pivoting or moving upward during machine operations.� If the scrap chute is
pivoted to an upright position by hand, there is nothing on the PCM that allows
for it to be secured in that position.� It can remain balanced in place or fall
by force of gravity to its canted operating position.� AJM prohibited lifting
the scrap chute to clear paper jams in February 2015, following an injury to
one of its adjusters. [4]

On May 8, 2016, an adjuster discovered
that blanks were jammed near the cutting die of a PCM he was operating.� To
unjam the machine, he engaged the e-stop button on the control panel to shut
down the machine, walked to the back of the PCM, opened the interlocked rear
access doors, and observed about 60 blanks jammed near the cutting die.� He
then reached up and tried to pull the blanks out with his hand, but they were
too tightly jammed for him to do so.� He returned to the operator�s side of the
machine, opened the scrap chute guard, and lifted the scrap chute to its upright
position.� The adjuster then returned to the opened rear access doors and from
that position he again reached up into the machine to remove the jammed
blanks.� He succeeded in removing them, but as he was finishing, the scrap
chute fell from its upright position and pinched his middle finger against the
cutting die, resulting in the amputation of part of his finger.

DISCUSSION

The Secretary alleges a violation of
� 1910.147(c)(4)(i), which provides: �Procedures shall be developed,
documented and utilized for the control of potentially hazardous energy when
employees are engaged in the activities covered by this section.�� With respect
to Instance (d), the amended citation describes the alleged violation as
follows: �Lockout procedures were not utilized and lockout devices were not
affixed by an authorized employee performing tasks such as, but not limited to,
clearing jams on the Peerless Cutting Machine . . . .� [5]

To establish a violation, the Secretary
must prove that the cited standard applies, there was a failure to comply with
the standard, employees were exposed to the violative condition, and the
employer knew or should have known of the violative condition with the exercise
of reasonable diligence.� See Briones Utility Co. , 26 BNA OSHC 1218,
1219 (No. 10-1372, 2016); Astra Pharm. Prods., Inc. , 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981), aff�d in pertinent part, 681 F.2d 69
(1st Cir. 1982).� Of these elements, only applicability and constructive knowledge
are at issue on review. [6]

I.                   
Applicability

The LOTO standard �covers 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.�� 29 C.F.R.
� 1910.147(a)(1)(i) (second emphasis added).� It �applies to the control
of energy during servicing and/or maintenance of machines and equipment.�� 29
C.F.R. � 1910.147(a)(2)(i).� For purposes of the LOTO standard,
�[s]ervicing and/or maintenance� means �[w]orkplace
activities . . . where the employee may be exposed to the unexpected  energization
or startup of the equipment or release of hazardous energy.�� 29 C.F.R.
� 1910.147(b) (emphasis in original).� �

In finding that the LOTO standard applied
to the violative condition alleged in Instance (d), the judge agreed with the
Secretary that hazardous gravitational energy accumulates when the PCM�s scrap
chute is raised to clear a paper jam, a servicing and maintenance activity, and
therefore must be controlled by a physical restraint, such as a block, to
prevent it from unexpectedly falling and injuring an employee. [7] � As it did
before the judge, AJM argues on review that the LOTO standard cannot apply to
the raised scrap chute because it was not until the employee lifted the scrap
chute during the servicing activity (i.e., clearing the paper jam) that any
stored energy became an issue.� Specifically, AJM asserts that the PCM was in a
�zero mechanical state� at the time of the incident and that the scrap chute, held
down by gravity, was at rest until lifted by the employee to clear the jam. [8] � In other words, AJM claims the LOTO standard does not apply to
energy unrelated to a machine�s normal production function�that is, energy
created by an ancillary machine component that is at rest and does not require
an energy isolating device to keep it at rest . [9] �

Like the judge, we reject this argument.�
The temporal component suggested by AJM is simply not present in the text of
the LOTO standard.� As the judge noted, the definition of �servicing and/or
maintenance� makes no reference to whether the unexpectedly released energy is
present either before or after the employee begins a servicing or maintenance
activity.� 29 C.F.R. � 1910.147(b).� This reading is supported by the
plain text of various provisions of the LOTO standard, which state that the
standard applies to all energy sources that could unexpectedly release energy
and injure an employee at any point during a servicing and/or maintenance
activity.� 29 C.F.R. � 1910.147(a)(1)(i) (standard �covers servicing and
maintenance of machines . . . in which the unexpected release of
stored energy could cause injury to employees�); 29 C.F.R.
� 1910.147(a)(2)(i) (standard �applies to the control of energy during
servicing and/or maintenance of machines and equipment�); 29 C.F.R.
� 1910.147(c)(4)(i) (procedures must be �utilized for the control of
potentially hazardous energy when employees are engaged in the activities
covered by this section � (emphasis added)).�

Contrary to AJM�s claim on review, this
reading of the LOTO standard is consistent with its preamble.� See
Arcadian
Corp. , 17 BNA OSHC 1345, 1348 (No. 93-3270, 1995) (considering
legislative history where plain meaning of statutory language is clear only to
determine whether there is express legislative intent to the contrary), aff�d ,
110 F.3d 1192 (5th Cir. 1997).� It is true, as AJM points out, that the
preamble explains in reference to 29 C.F.R. � 1910.147(d)(5) that �energy
[that] may still be present in a system that has been isolated from the energy
source [must] be controlled before an employee attempts to perform
work.�� Control of Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg.
36,644, 36,677 (Sept. 1, 1989) (Final Rule) (emphasis added).� But the
provision itself states that �[i]f there is a possibility of reaccumulation of
stored energy to a hazardous level, verification of isolation shall be
continued until the servicing or maintenance is completed , or until the
possibility of such accumulation no longer exists.�� See 29 C.F.R.
� 1910.147(d)(5)(ii) (emphasis added).� In addition, as OSHA explained in
the preamble, �the [LOTO] standard is intended to control energy as it relates
to the energy isolating device and the machine or equipment being serviced, and
that the only stored or residual energy addressed by the standard is that which
could reenergize that equipment or be released while the servicing operation
is being performed .�� Lockout/Tagout, 54 Fed. Reg. at 36,678 (emphasis
added).�

AJM fails to recognize that the stored gravitational
energy in a raised scrap chute �could . . . be released while
the servicing operation is being performed,� regardless of when that energy was
created.� Id. � Indeed, OSHA explained that employers must use a
standardized energy control procedure while preparing for, conducting, and
completing servicing of equipment because �simply shutting down the machine
or equipment has not proven to prevent accidents when there is an unexpected
energization or start up of the machine or equipment or the release of
stored energy .�� Lockout/Tagout, 54 Fed. Reg. at 36,661 (emphasis added); see
id. at 36,653 (�The procedure would outline the necessary steps to be taken
to prepare for, conduct, and complete servicing of equipment . . . .�),
36,661 (describing the standardized procedure used to control hazardous
energy).� Finally, the preamble also states that the employer must �ensure that
the control measures are used by employees whenever they might be
exposed to injury from the unexpected energization or start up of machines or
equipment or the release of stored energy .�� Id. at 36,670
(emphasis added).� In short, the LOTO standard requires that an employer
control energy throughout the servicing and/or maintenance activity, not
only before the activity begins.

For these reasons, we affirm the judge�s
finding that the LOTO standard applies to the violative condition at issue in
Instance (d).

II.                
Constructive
Knowledge

To establish constructive knowledge, the
Secretary must prove that, with the exercise of reasonable diligence, the
employer should have known of the conditions constituting the violation.� Jacobs
Field Servs. N. Am. , 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015).� �The
knowledge element is directed to the physical conditions that constitute a
violation, and the Secretary need not show that an employer understood or
acknowledged that the physical conditions were actually hazardous.�� Danis
Shook Joint Venture XXV , 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001)
(citation omitted), aff�d , 319 F.3d 805 (6th Cir. 2003); see also S.
Hens, Inc. v. OSHRC , 930 F.3d 667, 676 (5th Cir. 2019) (�The showing
required to establish knowledge is of the physical conditions constituting the
violation, not of the specific OSHA regulation or of the probable consequences
of the violation.�).� Reasonable diligence is based on several
factors, including an employer�s obligations to implement adequate work rules
and training programs, adequately supervise employees, anticipate hazards, take
measures to prevent violations from occurring, and enforce work rules when
violations are discovered.� See S.J. Louis
Constr. of Tex. , 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016); Thomas
Indus. Coatings, Inc. , 23 BNA OSHC 2082, 2088-89 (No. 06-1542, 2012).�

The cited provision states that LOTO
procedures are required �when employees are engaged in the activities covered
by this section.�� In this case, the �covered� activity is raising the scrap
chute �to remove an accumulation of blanks from the cutting dies.�� Thus, for
purposes of the knowledge inquiry, the question on review is whether AJM should
have known with the exercise of reasonable diligence that employees raised the PCM�s
scrap chute to clear paper jams.� The judge found the record lacked sufficient evidence
to establish that AJM should have known of this practice.� For the reasons that
follow, we agree with the judge that the Secretary failed to establish AJM had
constructive knowledge. [10]

Adequacy of Work Rule and
Training

In February 2015, AJM established and
trained its adjusters on the following work rule:

All adjusters: NEVER raise the
scrap [chute] to clear a jam.� This [chute] acts as a guard when clearing out
jams from under the machine.� Exposure to the scrap knife is extremely
dangerous while the machine is running.� To clear a jam, you must go under the
machine and remove the jam with the sc[ra]p [chute] in place.� NEVER try to
reach in from the sides of the machine.� This is a part of our safety
S[tandard] O[perating] P[rocedures] and is strictly enforced.

The
judge found that �even though the rule was not intended to protect adjusters
from the gravitational energy present in the raised scrap chute,� it was
nonetheless adequate because �compliance with the rule would have the
unintended ancillary effect of preventing the hazardous physical condition
involved in instance [(d)] from materializing.��

�The Commission has consistently held that
an employer�s work rules must simply �reflect[] the requirements of the cited
standard.� �� MasTec N. Am., Inc. , No. 15-1574, at 9 (OSHRC 2021)
(citations omitted); see also Armstrong Utilities, Inc. , No. 18-0034, at
10 (OSHRC 2021).� As noted above, the obligation to �develop[], document[] and
utilize[]� LOTO procedures only arises �when employees are engaged in the
activities covered by th[e] [LOTO standard].�� 29 C.F.R.
� 1910.147(c)(4)(i). �In this regard, AJM�s work rule reflects the cited
provision�s requirements because it prohibits employees from engaging in the cited
activity that triggers the requirement for LOTO procedures.� Indeed, it would
be illogical for AJM to establish a work rule that lays out LOTO procedures for
raising the scrap chute when clearing a paper jam given that employees are
prohibited from doing that in the first place.� Thus, we find that AJM�s work
rule is adequate.

We also find the Secretary failed to prove
AJM�s efforts to implement and communicate this work rule were deficient.� AJM�s
initial efforts to communicate and train employees on the rule were clear and
direct.� The rule was provided to adjusters on February 9, 2015, and 27 adjusters,
including the adjuster injured in 2016, signed a form acknowledging that they
had received training on the rule.� Several supervisors, including the
Assistant Plant Manager, testified that at the time the rule was implemented,
adjusters were trained on the rule, understood the rule, and did not express
any confusion about the rule. �The Assistant Plant Manager testified that he
went over the rule step by step with each adjuster, including the injured adjuster,
while they were standing at their machines.� Furthermore, the two former and
three current employees who testified at the hearing and worked as adjusters
for AJM in February 2015, including the injured adjuster, all stated that they
were aware of and understood the rule. [11]

The Secretary argues that despite
initially training adjusters on the work rule, AJM failed to provide subsequent
formal or written training on the rule either during classroom or on-the-floor
training.� But the Secretary failed to prove that the rule was not conveyed
informally during on-the-floor training provided to trainees by experienced
adjusters who knew the rule.� In fact, the Secretary did not ask any witnesses
whether new adjusters were trained on the work rule or whether AJM�s
supervisors had informed or instructed adjuster-trainers to provide training on
it.� Rather, the Secretary asserts that any informal training that took place
was inadequate because AJM �often� shortened the amount of time it spent
informally training adjuster-trainees on the floor. [12] � However, the
amount of time that AJM spent training adjuster-trainees does not speak to
whether during such training the work rule was adequately communicated to
trainees.� Moreover, the Secretary never explains what length of on-the-floor
training would be reasonably necessary under the circumstances.� Without this
evidence, there is simply no basis to conclude that AJM�s subsequent informal
communication or training was inadequate. [13]

For all these reasons, we find the Secretary
failed to establish that the company�s communication of its work rule to
employees was inadequate.

Adequacy of Supervision

It is undisputed that AJM�s various production
supervisors�including the Assistant Plant Manager, the Production Manager,
Foremen, and Assistant Foremen�spend the majority of their time on the
production floor, observing and monitoring employees, including adjusters, and
ensuring compliance with safety rules.� The Human Resources Manager also walks
the floor each day, and the Plant Manager occasionally observes the production
floor and can view the machines from his office. �The Secretary claims that this
monitoring cannot possibly be considered effective because the testimony of
five former adjusters shows that adjusters frequently raised scrap chutes at
the facility to clear paper jams, and a raised scrap chute would and should have
been �readily detectible� to any supervisor observing the work.� But as the
judge acknowledged in his decision, there is a �clear divide� in the evidence on
the basic premise underlying the Secretary�s argument�the prevalence of lifting
the scrap chute to clear a paper jam.� Specifically, four of the five former
adjusters called by the Secretary testified that they raised the scrap chute
one to three times per day per machine to clear paper jams after the 2015 work
rule was instituted, and that floor supervisors and other adjusters engaged in
that practice as well. [14] �
At the same time, the eight current supervisors and one current adjuster called
by AJM testified that they never lifted the scrap chute to clear a jam and had
never seen adjusters raise the scrap chute to clear a jam. [15]

Faced with this contradictory testimony,
the judge determined that all of these witnesses were equally credible,
discrediting only part of the testimony of one former adjuster. [16] � Specifically,
the judge found that �the testimony of former and current employees regarding
their practices after the rule was implemented was facially credible� and �[i]t
is entirely believable that [all but one of the former adjusters who testified]
lifted the scrap chute in the manner and frequency with which they testified.� [17] � He also
found that testimony from the former adjusters �that they had observed floor
supervisors [raise the scrap chute to clear jams] is no more credible than the
testimony of two of the supervisors they identified who essentially
controverted having violated the rule themselves.�� In short, the judge
credited the former adjusters� testimony that they themselves lifted the scrap
chute regularly to clear paper jams and had seen floor supervisors do
so, and also credited the current employees� testimony (including that of floor
supervisors) that they themselves never lifted the scrap chute to clear
paper jams and had never seen anyone do so.� This means he was unable to
resolve the conflicting testimony regarding the prevalence of this practice.�
Accordingly, the judge concluded the Secretary failed to proffer sufficient evidence
to establish by a preponderance of the evidence that AJM failed to adequately
supervise its adjusters regarding compliance with the rule.

We find no basis for disturbing the judge�s
determination that the former adjusters and the current employees were equally
believable, and therefore, we also credit their respective testimony except
where it directly conflicts.� See, e.g., Metro Steel Constr. Co. , 18 BNA
OSHC 1705, 1706 (No 96-1459, 1999) (Commission ordinarily defers to judge�s
credibility findings when based on demeanor of witnesses or other factors
peculiarly observable by judge).� Thus, we credit the former employees�
testimony that it was their own practice to regularly lift the scrap chute to
clear paper jams, the current adjuster�s testimony that he never lifted the
scrap chute to clear jams, and all of the current employees� testimony that
they had never seen anyone lift the scrap chute to clear jams.� And absent
evidence in the record that would allow us to assess the credibility of either
set of these employees with respect to whether floor supervisors and other
employees violated the work rule, our inquiry here is limited to whether�in
light of the four former adjusters� credible testimony that they had
previously lifted the scrap chute to clear paper jams�AJM�s supervisors should
have been aware that there were four employees violating the work rule.�

On that issue, we find that the record is
again lacking.� First, testimony from the former adjusters shows that their
scrap chute lifts were relatively infrequent and of short duration.� One former
adjuster testified that he only �rarely� raised the scrap chute to clear paper
jams. �Another adjuster simply said he lifted the scrap chute �whenever [he]
needed to clear [a paper jam]� with no explanation of how often that occurred.�
A third adjuster testified he lifted the scrap chute to clear paper jams, but while
the judge agreed that this adjuster did perform this action to some degree, his
testimony as to how often he did so has been discredited.� And the adjuster injured
in 2016 testified he would raise the scrap chute �like four
times . . . per shift.�� In short, four adjusters�three on one
shift and one on a different shift�were raising scrap chutes to clear paper
jams, with the record showing that three were doing so only occasionally over
the course of an eight-hour shift.

With respect to the duration of their
lifts, none of the former adjusters explained precisely how long clearing a paper
jam would take.� Three of them simply said the scrap chute remained upright
long enough to pull out any paper.� Only the injured adjuster testified that
the scrap chute was normally up for one minute when he raised it to clear a jam.�
During the 2016 incident, however, when he had to go back and forth between the
operator�s side of the machine and the rear doors to clear the jam, the scrap
chute was raised for four to five minutes.� Given this testimony and that of
the adjusters who said their goal was to get their machines running again as
quickly as possible, we find that any lifts to clear a jam were usually of
short duration.

Second, it is not clear that a raised
scrap chute would, as the Secretary claims, have been readily apparent to any
supervisor walking the production floor. [18] �
The Plant Manager claimed that anyone observing the adjusters would be able to
see whenever a scrap chute was raised because the end of it sticks out of the
machine on the discharge side, and when the scrap chute is raised, the whole
chute is at �an upright position instead of a 45[-]degree angle.�� However, the
record makes clear that for the PCM to remain operational, the scrap chute
cannot be raised while the machine is operating.� As a result, supervisors would
have to look for the raised scrap chute whenever they saw that a PCM had
stopped operating, as indicated by a blinking red light on the top of the
machine.� Indeed, supervisors testified that they were required to check
whenever they saw that a machine was no longer operating.� But the Production
Manager, who spends the majority of his time on the production floor, testified
that the light was visible only from five feet away, so supervisors could not
always tell when a light was lit while walking down the center aisle during
their rounds, particularly if they were some distance away from the inoperative
machine.� In short, a supervisor may not have been in the vicinity for the
brief period of time a machine�s red light was on or the scrap chute was raised.

Under these circumstances, we find the record
evidence falls short of establishing that the AJM supervisors monitoring the
production floor should have observed the few and relatively fleeting occasions
when the scrap chute was raised in violation of the company�s work rule. �Accordingly,
we find the Secretary failed to establish that AJM�s continuous safety
monitoring by multiple supervisors was inadequate.� See, e.g., N.Y.
State Elec. & Gas Corp. , 19 BNA OSHC 1227, 1231 (No. 91-2897, 2000)
(finding safety program adequate where, in addition to supervisory surprise
audits, foreman inspected each site for safety compliance twice a day and spent
thirty to forty minutes at each visit); Kerns Bros. Tree Serv. , 18 BNA
OSHC 2064, 2070 (No. 96-1719, 2000) (finding safety program adequate where
either company�s co-owner or safety director inspected between 75 percent and
95 percent of the company�s work sites each day to monitor employee compliance
with safety rules).

Anticipating Hazards

In terms of adequately anticipating
hazards to which its employees may be exposed, the judge found that AJM�s supervisors
uniformly and credibly believed that adjusters had no need to raise the scrap
chute to clear paper jams.� He also determined, and we agree, that the evidence
presented by the Secretary was insufficient to establish that there was a
widespread practice of lifting the scrap chute to clear paper jams among
adjusters.� On review, the Secretary argues that testimony from the adjusters shows
they apparently found it helpful to raise the scrap chute when clearing a paper
jam.� But that has no bearing on whether AJM should have anticipated
hazards related to that practice.� And, as the judge found, AJM�s supervisors
all testified there was no reason to raise the scrap chute and that doing so
would not make the work go faster.� Thus, we agree with the judge that AJM had
no reason to anticipate that adjusters would violate its work rule and thus be
exposed to the violative condition.

In addition, the record does not support
the Secretary�s claim that prior injuries suffered by adjusters at the facility
should have alerted the company that adjusters were exposed to a hazard related
to raising the scrap chute.� The evidence shows that all but one of those
previous injuries occurred while adjusters were performing work activities that
did not involve raising the scrap chute. [19] �
And the one prior incident that did involve raising the scrap chute to clear a paper
jam is what led AJM to establish its work rule prohibiting the practice. [20] � Accordingly,
we find the Secretary failed to show that AJM did not adequately anticipate
hazards associated with raising the scrap chute while clearing paper jams.

Enforcement of Work Rules

Last, we agree with the judge that the
Secretary failed to establish that AJM�s disciplinary program was ineffective
or inadequate.� AJM has a general progressive disciplinary policy for
violations of �safety regulations or common safety practices,� and the record
contains 88 documented disciplinary actions for violations of that policy.� The
company also has a separate progressive disciplinary policy for violations of
its LOTO program. [21] �
We find that AJM�s extensive documentation of disciplinary actions supports the
judge�s conclusion that the Secretary failed to prove AJM inadequately enforced
its safety program.� See S.J. Louis , 25 BNA OSHC at 1900 (record of
numerous safety-related disciplinary actions shows implementation of progressive
disciplinary policy even though no recent disciplinary actions for violation at
issue); Thomas Indus. , 23 BNA OSHC at 2088-89 (discipline adequate where
employer had disciplined employees for violations of its safety program and
disciplinary reports show that employees involved in fall protection violation
at issue had never been disciplined for personally violating fall protection
rules).

We are also not persuaded by the
Secretary�s claim that AJM�s reliance on undocumented verbal discipline means
the company failed to enforce its work rules adequately.�� The Commission has
held that verbal discipline coupled with documented written discipline can
constitute effective enforcement.� Compare S.J. Louis , 25 BNA OSHC at
1900 (finding effective enforcement where record shows company provided
corrective informal training and disciplinary actions when it discovered safety
work rule violations), and Aquatek Sys. Inc. , 21 BNA OSHC 1400, 1402
(No. 03-1351, 2006 (finding that verbal reprimand demonstrates employer
enforced safety rules), with Stark Excavating Inc. , 24 BNA OSHC 2218,
2221 (No. 09-0004, 2014) (consolidated) (evidence of only verbal
discipline undermined progressive disciplinary policy where the policy
expressly required written warnings).� And, as the judge found, the record
shows that the Plant Manager instructed supervisors to �use their own latitude�
to issue verbal warnings or written discipline, if necessary, and AJM�s
supervisors testified that they commonly relied on verbal warnings and
counseling to address observed safety violations.�

Finally, contrary to the Secretary�s
argument, AJM�s decision to delay disciplining the injured adjuster does not support
a finding of ineffective enforcement.� See Precast Servs, Inc.. , 17 BNA
OSHC 1454, 1456 (No. 93-2971, 1995) (�Commission precedent does not rule out
consideration of post-inspection discipline, provided that it is viewed in
conjunction with pre-inspection discipline.�), aff�d , 106 F.3d 401 (6th
Cir. 1997).� It is undisputed that the company waited twelve days to discipline
the employee and that it normally issues discipline within a day of an infraction.�
The Secretary attempts to compare this to the eight-month disciplinary delay that
occurred in Cooper/T. Smith Corp. d/b/a Blakeley Boatworks Inc. , No.
16-1533, at 7 (OSHRC 2020), which the Commission found weighed in favor of
ineffective enforcement.� But considering the record evidence of enforcement
here, we find that one instance of discipline delayed for days, not months, is
insufficient to establish that AJM�s overall enforcement efforts were ineffective.�
See Thomas Indus. , 23 BNA OSHC at 2088-89 (where employer had
established that it had disciplined employees for safety violations in the
past, employer�s decision to forgo discipline in one instance did not establish
ineffective enforcement).� Accordingly, we find the Secretary failed to prove
that AJM�s disciplinary program was inadequate.

Conclusion

For all these reasons, we find that the
Secretary failed to show that AJM should have known of the conditions
constituting the alleged violation.� Accordingly, we vacate Instance (d) of
Repeat Citation 2, Item 1.

SO ORDERED.

����������������������������������������������������������������������������������� /s/��������������������������������������������������������

����������������������������������������������������������������������������������� Cynthia
L. Attwood

����������������������������������������������������������������������������������� Chairman��������

����������������������������������������������������������������������������������� /s/��������������������������������������������������������

����������������������������������������������������������������������������������� Amanda
Wood Laihow

Dated:�
April 1, 2022������������������������������������������������� Commissioner

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington, D.C.� 20036-3457

SECRETARY OF
LABOR,

Complainant,

v.

OSHRC Docket No. 16-1865

AJM PACKAGING CORPORATION ,

�

Respondent.

DECISION
AND ORDER

APPEARANCES:

For the Complainant:

David M. Jaklevic, Esq.

U.S. Department of Labor

New York, New York

For the
Respondent:

Brent I. Clark, Esq.

Adam R. Young, Esq.

Seyforth Shaw LLP

Chicago, Illinois

BEFORE:������ William
S. Coleman

����������������������� Administrative
Law Judge

I.
INTRODUCTION

The Respondent, AJM Packaging Corporation
(AJM), manufactures paper plates and bowls at a facility in Vineland, New
Jersey.� AJM makes the paper products with large machines called �Peerless
Cutting Machines� (PCMs). [22] �
(Ex. C-44; Ex. R-18 at 13).� AJM operates about thirty-three PCMs at its
Vineland facility.� (T. 734, 1725).

Upon receiving a report that an amputation
injury had occurred at the Vineland facility on May 8, 2016, the area office of
Occupational Safety and Health Administration (OSHA) located in Marlton, New
Jersey, assigned a compliance safety and health officer (CO) to conduct an
inspection and investigation.� The investigation resulted in OSHA issuing to
AJM a one-item repeat citation and a one-item serious citation on September 30,
2016.�

The one-item repeat citation (as the
Secretary amended in his complaint pursuant to Commission Rule 34(a)(3))
alleges that AJM violated the �control of hazardous energy (lockout/tagout)�
(LOTO) standard, 29 C.F.R. � 1910.147, specifically subparagraph (c)(4)(i)
thereof, which provides:� �Procedures shall be developed, documented and
utilized for the control of potentially hazardous energy when employees are
engaged in the activities covered by this section.�� AJM is alleged to have
violated that provision in four discrete instances (designated instances �a�,
�b�, �c� and �d�) in the following identical manner for each instance:�
�Lockout procedures were not utilized and lockout devices were not affixed by
an authorized employee performing tasks such as, but not limited to, clearing
jams on the Peerless Cutting Machine.�� Instances �a�, �b� and �c� were alleged
to have occurred on or about August 25, 2016, with each instance pertaining to
a different PCM.� Instance �d� relates to the amputation injury that had
precipitated the investigation and was alleged to have occurred �on or about�
May 9, 2016. [23]

The one-item serious citation (as was
twice amended, first in the Secretary�s complaint and again during the course
of the hearing) alleges that AJM violated the �hand protection� standard codified
at 29 C.F.R. � 1910.138(a), which provides in relevant part as follows:
�Employers shall select and require employees to use appropriate hand
protection when employees' hands are exposed to hazards such as those from �
thermal burns; and harmful temperature extremes.�� The amended citation alleges
that AJM violated this standard on or about August 17, 2016 in the following
manner:� �[AJM] did not provide or ensure use of hand protection to employees
who were exposed to harmful temperatures from the paper products exiting the
Peerless Cutting Machines.�� (Complaint dated 2/13/2017, � VIII, amended at T.
370-71).

AJM timely contested the citations and
proposed penalties, bringing the matter before the independent Occupational
Safety and Health Review Commission (Commission) under section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651�678 (Act).� 29
U.S.C. � 659(c).� The matter was assigned to the undersigned
administrative law judge, who conducted an evidentiary hearing in Philadelphia,
Pennsylvania, on the following dates: October 17 to 19, 2017; January 30 to
February 2, 2018; and March 6 and 8, 2018.� Post-hearing briefing was completed
on June 18, 2018.

The principal issues presented, and the
decisions thereon, are as follows:�

Did the Secretary prove by a preponderance of the
evidence that on August 25, 2016 employees Beals, Mendieta, or Thompson
bypassed the scrap chute guard of an operating PCM to reach into the scrap
chute to remove scrap paper? (Citation 2, item 1, instances �a�, �b� &
�c�; � 1910.147(c)(4)(i))

Decision: No.� The
Secretary did not prove that any of those employees violated the terms of the
cited LOTO standard in the manner averred by instances �a�, �b� or �c�.

�         
Did
the Secretary prove by a preponderance of the evidence that AJM should have
known of the physical condition that violated the LOTO standard that occurred
on May 8, 2016 (the physical condition being a raised scrap chute that could
unexpectedly fall and cause injury to an employee clearing a paper jam)?�
(Citation 2, item 1, instance �d�; � 1910.147(c)(4)(i))

Decision : No.� The
Secretary did not prove AJM had failed to exercise reasonable diligence to
prevent or discover the physical condition that constituted a LOTO violation,
and thus failed to establish the �employer knowledge� element of the alleged
violation.

Did the
Secretary prove by a preponderance of the evidence that the residual heat
present in the stacks of paper plates and bowls that exit the PCMs was
likely to expose employees� hands to thermal burns or harmful
temperatures?� (Citation 1, item 1; � 1910.138(a)).

Decision :� No.� The
Secretary did not prove that employees were likely to be exposed to a
significant risk of thermal injury and thus did not establish that the hand
protection standard applies.

The
Secretary having failed to meet his burden to prove the alleged violations,
both citations must be vacated.

II.� FINDINGS OF FACT

Except where the following findings
indicate that the evidence was insufficient to establish a certain fact or
indicates the absence of evidence bearing on a matter of fact, the following
facts were established by at least a preponderance of the evidence:

1. AJM
   Packaging Corporation (AJM) is a Michigan corporation and maintains its headquarters
   in that state.� AJM manufactures and distributes paper products, including
   paper plates and bowls.� (Answer � 2; T. 716-17, 2441).� AJM operates eight
   manufacturing facilities across the United States including facilities in
   Georgia, Michigan, California, and New Jersey.� (T. 716, 732-33).� AJM
   distributes its products to major U.S. retailers.� (T. 2732).� AJM employs
   approximately 2,100 employees across the company.� (T. 733).� AJM is engaged in
   a business that affects interstate commerce.� (Answer dated 3/6/2017,
   �� II & III).

2. In
   2009, AJM opened a facility in Vineland, New Jersey, to produce paper plates
   and bowls.� (T. 573, 2441).� The Vineland facility (Facility) operates 24 hours
   a day, with three eight-hour shifts.� (T. 733).� In 2016, about 250 employees
   worked at the Facility, about 100 of whom staffed the first shift.� (T. 732-33,
   1433, 1866).

3. AJM
   makes the paper plates and bowls at the Facility with machines that were
   manufactured by a company named Peerless Machine & Tool Corporation (�Peerless�).�
   (T. 448, 747, 1157-64; Exs. C-6; Ex. R-15 at 5-7).� The machines are identified
   in this Decision using the acronym �PCM.�� ( See footnote 1, supra ).�
   Peerless designed the PCMs that AJM owned and operated at the Facility sometime
   before 1968, though the record does not indicate the year or years that
   Peerless manufactured any of the PCMs used at the Facility.� (T. 1157, 1162).�

4. In
   2016, AJM operated about 33 PCMs at the Facility, all of which were located on
   the Facility�s central production area, or �floor,� with each PCM identified by
   a number (numbers 1 through 33). � (T.
   734-35, 2457).� The PCMs were arrayed on the floor in two rows in the manner
   depicted in a schematic of the Facility at Exhibit C-2.� This two-row
   configuration created a central aisle between the rows, with the output end of
   every machine facing inward toward the aisle.� (T. 734, 737; Ex. C-2). � All the PCMs were substantially similar
   in design and functionality.� (T. 73, 172-73, 304, 1200).

Employee Roles

5. Employees
   called �adjusters� operate the PCMs.� (T. 57-58, 764).� (The activity of
   adjusters is the subject of the LOTO citation.)� Adjusters are responsible for
   observing the overall function of the PCMs, ensuring that the paper plates and
   bowls are formed correctly, and performing adjustments on the PCMs to ensure
   proper functioning.� (T. 70-71, 170, 181-82, 303, 764-65, 2732-33).� Servicing
   tasks that adjusters perform include adjusting the rails, changing the air
   levels, replacing springs, and clearing paper jams that are simple enough not
   to require the intervention of AJM�s maintenance mechanics. �(T. 73-74, 182-83, 305-06,
   653-54, 1434-35,
   1947-48, 2021-22, 2340-41). � Between eight and twelve adjusters typically
   work each shift.� (T. 1435, 2104, 2234-35).� Experienced adjusters normally
   operate three or four PCMs at a time.� (T. 171-72, 641, 2017-18, 2392-93, 2459,
   2733).

6. Employees
   called �packers� are responsible for removing finished plates and bowls from a
   runout table placed at the end of
   each PCM and then packing the product into plastic bags. � (T. 764, 2000-01).� (The activity of the packers is the
   subject of the hand protection citation.) � Packers also check the quality of the
   finished plates and bowls and make sure the stacks of product have the correct
   quantity.� (T. 2001-02).� About half of the employees present for any given
   shift are packers.� (T. 1935-36).

7. Employees
   called �balers� collect and bale scrap paper that is generated by the PCMs.�
   (T. 2174-75).�

Manufacturing Process

8. The
   operation of the PCMs begins with the adjuster mounting a cylindrical roll of
   paper, about four feet wide, on a stand located at the rear of the PCM.� (T.
   60-61, 747-48, 1731-32, 1585-86, 2012; Ex. C-6; Ex. C-51; Ex. R-18 at 8).� The
   adjuster feeds the roll of paper upward towards a mechanical paper feeder that
   is located at the top rear of the PCM.� (T. 58-60, 605, 748-49, 1731-32,
   2349-50; Ex. C-6).

9. The
   PCM has a control panel located on what is known as the �operator�s side� of
   the machine.� (T. 2042-44; Ex. C-16).� After feeding the roll into the paper
   feeder, the adjuster goes to the PCM�s control panel and manipulates the
   controls to feed the paper downward through the feeder and into the PCM, where
   during production the paper passes into the cutting die (also referred to as
   the �blanking die� and the �cutting head.�).� (T. 86-87, 749, 751, 601-02,
   2736).� The cutting die is a large orange-colored component that reciprocates
   in an up-and-down motion and is set to complete about 45 cutting cycles per minute.�
   (T. 62-63, 187, 1140-41, 2503; see video clips at Exs. C-25 &
   C-26).� In each cutting cycle the cutting die cuts five holes through the sheet
   of paper to produce five flat circle-shaped �blanks� (which moments later the
   PCM will form into plates or bowls).� (T. 749-50, 1173, 2025; 2031; 2582).

10. After
    the cutting die creates the flat circular blanks, the remnant of the paper
    (known as �scrap� or �skeletons�) drops a short distance onto the PCM�s �scrap
    chute.�� (The scrap chute is a piece of sheet metal situated adjacent to the
    cutting die and extends horizontally across the width of the machine; the scrap
    chute is described in greater detail infra �� 17�21)� After the
    scrap paper drops into the scrap chute, a burst of forced air from an air
    nozzle located at the end of the scrap chute on the PCM�s operator�s side
    expels the skeleton from the scrap chute.� The skeleton exits the PCM through
    an opening on the non-operator side (or discharge side) of the PCM, where it
    falls into a bin positioned below the opening.� (T. 752, 1023-24, 2029, 2031,
    2542; see video clips at Exs. C-23, C-25 & C-26).� The skeletons are
    expelled in-time with the movement of the cutting dies, so that a skeleton
    exits the PCM at a rate of about 45 times per minute.� ( See video clips
    at Exs. C-23 & C-25).

11. At
    the same time that the scrap paper drops into the scrap chute, the flat
    circular blanks drop by force of gravity underneath the scrap chute onto
    internal inclined metal rails.� (T. 2027-28; video clip at Ex. C-26).� Each
    blank falls onto its own rail, which functions like a slide to guide the blanks
    to the heated forming dies.� (T. 177, 2027-28; see video clip at Ex.
    C-25).� The movement of the blanks down the rails is halted by a mechanical
    component called the �blank stop.�� (T. 2027-28).� The blank stop catches the
    blanks and then releases them in time with the cutting die to control the flow
    of blanks into the forming dies.� (T. 1172-74, 1915).� Once released by the
    blank stop, the blanks continue to slide down the rails to the heated forming
    dies.� (T. 63-69, 2027-28).

12. The
    forming dies use pressure and heat to form the flat circular blanks into the
    desired three-dimensional plate or bowl shape.� (T 1266-67).� Five sets of
    forming dies are positioned across the machine.� (T. 66-67).� Each set of
    forming dies consists of a top die and a bottom die.� (1266-68).� The forming
    dies open as the blanks approach from the rails and then compress together
    around the blanks as the blanks pass through.� (T. 187-88, 1267-70).� The
    forming dies typically operate between 250- and 350-degrees Fahrenheit but may
    operate as high as 425 degrees Fahrenheit in cold or humid weather.� (T.
    1268-71).

13. After
    the forming dies open, the newly formed plate or bowl drops onto a horizontal
    conveyor that transports the product to a �stacker� for each of the five lanes,
    where the stacked plates are shaken or agitated so that they nest into a neat
    stack.� (T. 1267, 2199; Ex. C-19).� The plates or bowls accumulate in the
    stacker until the programmed quantity for a complete stack is reached.� The
    programmed quantity of plates or bowls in a complete stack varies depending on
    customer orders, but common sizes include an 8-stack, a 25-stack, a 50-stack,
    and a 100-stack.� (T. 1267, 2296-98).� When a complete stack has accumulated in
    the stacker, the PCM automatically discharges the stack onto another conveyor
    that deposits the stacks onto a wood run-out table situated at the front of
    each PCM.� (T. 1267-68, 2196-98).� The plate or bowl on the bottom of each
    stack would have been the first plate in that stack to have left the heated
    forming die, and the plate or bowl on the top of the stack would have been the
    last item in that stack to have left the forming die.� (T. 2198-2201).

14. Once
    a stack reaches the run-out table, a packer picks them up with their hands and
    then steps a short distance to a machine called a �bagger� that the packer uses
    to package the stack in a plastic bag.� (T. 547, 1267-68, 2200-05; Ex. C-19).

15. The
    PCMs can process single-ply and multi-ply paper.� When single-ply paper is
    processed, each lane produces about 45 plates per minute, and a stack of eight
    plates would accumulate about every 10 seconds.� When four-ply paper is
    processed, each cutting cycle results in the production of four plates per lane
    per cutting cycle (for a rate of about 180 plates per lane per minute, so that
    a stack of 100 plates would accumulate in about 35 seconds).� (T. 2197-99,
    2298-2300).

16. The
    run-out table is sufficiently wide to permit at least two stacks of plates or
    bowls to accumulate on the table while the PCMs continue to discharge stacks of
    product onto the table.� (Ex. C-19; Ex. R-18 at 5, 14, 15, 26, 27; Ex. C-23).�
    A stack that is nearest the location where the packers handle them would have
    been discharged from the stacker for a longer period than the stack that
    followed it.� (T. 2019-20; Ex. R-18 at 26 & 32).� There is no evidence
    regarding the duration that the finished stacks may remain on the run-out table
    before the packer must handle the stack to prevent the stacks of product from
    overflowing the run-out table. �

PCM Components and Features

The Scrap Chute

17. The
    scrap chute on the PCMs is a piece solid steel sheet metal, weighing
    approximately 30 pounds, that is about five feet long and runs horizontally
    across the width of the PCM from the operator�s side to the discharge side.�
    (T. 592, 2542).� There are two bends in the sheet metal�one right-angle bend,
    and one approximate 30-degree angle bend.� These two bends give the scrap chute
    a shape that resembles the letter �J� when it is viewed from the operator�s
    side.� When the scrap chute is in its operating position, its �J� shape is
    canted clockwise about 45 degrees, so that the interior angles of the scrap
    chute form a cradle onto which the scrap paper falls.� (T. 590-92; Ex. C-12).�

18. Sometime
    before the Facility opened in 2009, AJM modified the way the scrap chutes were
    mounted and secured in the PCMs.� (T. 1335).� As Peerless originally designed
    and manufactured the PCMs, the scrap chute was fixed in place in the canted
    operating position described above and could be moved only by first removing
    mounting hardware, which would require several minutes to do.� (T. 1167-70,
    1178).� AJM modified the way the scrap chute was mounted so that it could be
    pivoted counterclockwise from its tilted operating position about 45 degrees
    (so that its �J� shape was oriented upright) without having to remove the
    mounting bracket.� (T. 591, 1096; compare Ex. C-12 [scrap chute
    depicted in canted operating position] & Ex. C-5A [scrap chute depicted in
    upright raised position] ).� With this modification, it became
    easier for workers to reach into the scrap chute area through the opening that
    was protected by the scrap chute guard (the scrap chute guard is described in
    detail infra �� 25�27) because the mounting bracket did not present
    a physical obstacle to doing so.� (T. 1342-46).�

19. After
    a scrap chute is pivoted up to an upright position, it could remain balanced in
    place, but if jostled it could fall by force of gravity and return to its
    canted operating position.� (T. 211-12, 222, 592, 361-62, 616; Ex. C-5).

20. The
    scrap chute is not powered by any device or mechanism, and it does not move
    during machine operations from its canted operating position.� (T. 538,
    2541-43) .�
    When
    the scrap chute is in its operating position, its weight keeps it from pivoting
    or moving upward by itself during operations.� (T. 538-39).�

21. At
    the time of OSHA�s 2016 inspection, an employee could pivot the scrap chute
    upward while positioned in two different locations: (a) from the side of the
    scrap chute, by reaching through the opening protected by the scrap chute guard
    located on the operator�s side (the scrap chute guard is described infra
    �� 25�27); and (b) from below the scrap chute, by pushing up on the scrap
    chute from the rear of the PCM while positioned near the PCM�s rear access
    doors (the rear access doors are described infra �� 33�34).� (T.
    591, 615-1, 656, 1096, 1346-47).

22. After
    AJM modified the way the scrap chutes were mounted, AJM did not provide
    adjusters with any means to block a raised scrap chute to prevent it from
    falling to its canted operating position. � (T.
    361, 591, 1096). � Only the counterbalance of the scrap chute�s weight kept it in an
    upright position.� (T. 361, 591, 1096). �

Machine Guards

23. AJM
    did not acquire the PCMs in use at the Facility when they were newly
    manufactured, but rather acquired previously owned PCMs from sources other than
    the manufacturer.� (T. 1372).� In addition to modifying the manner in which
    Peerless had designed the scrap chutes to be mounted as described above, AJM
    further modified the PCMs by designing and installing some components that are
    unique to the PCMs that AJM owned and operated.� (T. 1162).�

24. The
    PCMs as originally manufactured had an exterior framework that extended about
    two feet out from the operator�s side and that had guards or barriers that were
    designed with �interlocks� so that the PCM would shut down when opened.� (T.
    1185, 1215-27).� AJM removed that exterior framework and designed and installed
    two door-like guards that did not have an interlock feature (one for the scrap
    chute and the other for the forming die), so that the PCMs could run even if
    the guards were open .� (T. 623-33, 1325-26, 1364; Ex. C-4).

25. AJM
    designed and installed a guard for the scrap chute that was a rectangular
    hinged metal door (hereinafter referred to as �scrap chute guard�) on the exterior frame
    on the operator�s side of the PCM. � (T.
    587-88; Ex. C-4A, door marked with the number �2�). � The scrap chute guard appears to be about 12 inches high by
    about 15 inches wide and is canted at the same angle as the scrap chute in its
    operating position.� (Ex. C-12).� The scrap chute guard�s hinge was on the
    higher (right) side of the guard and a handle was on the lower (left) side, so
    that if the guard were opened it would fall shut by force of gravity unless it
    was held open or propped open.� (T. 82, 2463-64, 2572).�

26. The
    face panel of the scrap chute guard was made of metal grating, so that when the
    guard was closed the interior scrap chute area of the PCM (and any scrap paper
    in that area) was visible through the grating.� (T. 587-88; photo at Ex. C-5;
    video clip at Ex. C-25).� The scrap chute guard could be opened by turning its
    handle to unlatch it and then pulling outward and upward on the handle to open
    it.� (T. 2049).� This action of opening the scrap chute guard could be swiftly
    completed.� (T. 1902, 1968-70, 2306-07).� AJM designed the scrap
    chute guard to allow employees easier and quicker access to the scrap chute.�
    (T. 1326).

27. The
    scrap chute guard that AJM designed and installed had no �interlock� feature,
    so a PCM would operate regardless whether the scrap chute guard was closed or
    open.�

28. A
    second metal door-like guard that AJM designed and installed was known as the
    �forming die guard.�� The forming die guard is located below and to the left of
    the scrap chute guard and was similar in size to the scrap chute guard.� (T.
    1580; Ex. C-4A, door marked with the number �1�).�
    The forming die guard was not hinged, but it could be removed from the PCM by
    first twisting a handle to unlatch it and then pulling on two handles to remove
    it.� Like the scrap chute guard, the forming die guard also did not have an
    interlock feature, so the PCM would continue to run if the guard were removed
    when the machine was operating.� (T. 587-88, 1842, 1912-13).

29. Peerless
    had manufactured the PCMs with safety interlock features to prevent operators
    from being exposed to the moving parts inside the scrap chute
    and forming die areas of operating
    machines. � (T. 1186-87).�
    After Peerless learned that AJM was operating PCMs from which this interlock
    feature had been removed or bypassed, Peerless informed AJM in 2001 and again
    in 2008 that it believed this modification was unsafe because it enabled the
    machine to continue operating when the scrap chute guard or the forming die
    guard (both of which were designed and installed by AJM, not Peerless) were
    open.� (T. 1203-12, 1360-66; Exs. C-44, C-49, C-5A).� Peerless� stated concerns
    did not cause AJM to modify the scrap chute guard or the forming die guard to
    include a safety interlock feature.

Cutting Die Guards

30. After
    OSHA commenced the investigation, AJM began installing �cutting die guards�
    (also referred to as �finger guards� and �blanking die guards�) inside the
    scrap chute area of all the PCMs at the Facility in a measure to protect
    employees hands and arms from contacting the cutting die when accessing the
    scrap chute area through the opening that is guarded by the scrap chute guard.�
    (Ex. C-11, T. 308-09, 311-13, 589-90, 691, 820-22, 1091-92, 1275, 2130, 2511,
    2530; Ex. R-18 at 29).� By August 25, 2016 (the date of three alleged instances
    of the LOTO citation), a cutting die guard had been installed on four PCMs
    (nos. 7, 9, 13 and 14).� (T. 691, 1011-12, 2530, 2511).� PCM #13 was being
    operated by Brandon Mendieta during the CO�s walkaround on that day.� (PCM #13
    is identified in connection with instance �b� of the LOTO citation.)� Even for
    PCMs in which cutting die guards had been installed, AJM required employees to
    continue to abide by the work rule that the scrap chute guard remain in place
    when the PCMs were in operation. (T. 1967, 2431-33, 2512-15).

31. The
    evidence is insufficient to establish that an employee would be exposed to
    hazardous energy when opening the scrap chute guard and inserting a hand or arm
    into the scrap chute of an operating PCM on which a cutting die guard had been
    installed.� (T. 163, 1012-13, 1914, 1968, 1880-81, 2012, 2130).�

32. In
    PCMs in which cutting die guards had not been installed, the scrap chute
    area of the PCMs was hazardous.� (T. 2305-06, 2431-33).� The cutting die is
    located near the edge of the scrap chute, and an arm or hand inserted into the
    scrap chute area could make contact with the cutting die and would necessarily
    come within a least few inches of the cutting die.� (T. 188-190, 313-14,
    318-19, 1144, 2129; Exs. C-12 & C-26).� If a hand or finger contacted the
    cutting die while the cutting die is reciprocating, a serious laceration or
    amputation injury would be likely.� (T. 87, 1143-44).� Contact with the cutting
    die can cause a laceration even when the cutting die is not reciprocating.� (T.
    590).

Interlocked Rear Access Doors

33. At
    the rear of each PCM are two adjacent doors (�rear access doors�) that open and
    close like French doors, with the right door hinged on its right side and the
    left door hinged on its left side.� Each door is about three feet high and two
    feet wide.� The surface of the PCM on which the doors are mounted is on a plane
    that is declined at about a 45 degree angle, and so when the doors are
    unlatched they fall open downward toward the floor by force of gravity
    (although pneumatic cylinders slow the pace at which the doors fall open).� (T.
    603-06, 1145, 2066, 2274, 2485; Exs. C-22, R-18 at 23).� The face panels of the
    rear access doors are metal grating, and so when the doors are closed the
    machinery behind them is visible through the grating.� (Ex. R-18 at 23).�

34. The
    rear access doors are not visible from the PCM�s control panel.� (Ex. C-22).�
    To get to the rear access doors from the control panel, adjusters must walk to
    the rear of the PCM.� (T. 606, 1909-10).

35. The
    rear access doors provide access to the underside of the cutting die, the scrap
    chute, and other internal machine components.� (T. 625-26, 1909-12, 2352-53,
    2487-88, 2582-83).� It is routine for adjusters to open the rear access doors
    to clear paper jams, and typically this must be done for each PCM about four to
    six times per shift.� (T. 2488).

36. The
    rear access doors have a safety interlock, whose circuitry involves a
    micro-switch that is spring loaded and that must be depressed to activate power
    to the PCM.� (T. 2487).� A PCM will not run when a rear access door is open,
    because the non-depressed micro-switch breaks the circuit to the machine.� (T.
    2719).� The micro-switch is designed so that if it fails, it must fail in the
    open (off) position, opening the circuit and cutting power to
    the system .� (T. 1876-77, 2487, 2787-88).� AJM trains its
    employees that the rear access doors have this interlock feature and that they
    are not required to utilize LOTO procedures when accessing the PCMs through the
    rear access doors.� (T. 1912, 1977-78, 2274, 2321-22, 2328, 2353-55).�

37. AJM
    allows employees to open the rear access doors and access the PCMs through the
    open doors without using LOTO procedures because AJM determined that the PCMs
    could not operate when the doors were open.� (T. 1910, 2414-17).� There
    was no scientific, technical, or other specialized evidence that AJM was
    incorrect when it concluded that after a rear access door is opened that a PCM
    is not capable of unexpectedly energizing or starting up, or releasing any
    stored hazardous energy, even if the control circuitry for the interlocked rear
    access door was to fail.� (E.g., T. 2274, 2719, 2788).

Emergency
Stops (E-stops)

38. The
    PCMs are equipped with three emergency stop buttons, known as �e-stop�
    buttons.� (T. 621-22).� One e-stop button is located on the control panel on
    the operator�s side, another is located near the run-off table, and another is
    located on the PCM�s discharge side.� (T. 354-55, 583, 622, 1228, 1993, 2350; see
    R-18 at 3, 7, 24).� When an e-stop is activated, it breaks the circuit to all
    power to the PCM and the machine shuts down.� (T. 583-84, 621-22).�

39. The
    e-stops are on the same electrical circuit as the interlocked rear access doors
    and have the same electrical effect on the machine in terms of cutting the
    circuit when they are activated.� (T. 620-22, 1227-28, 2487).� When an e-stop
    breaks or stops functioning, it does so in the �off� position, rendering it
    impossible to restart the machine.� (T. 1876-77, 2481-82).�

40. The
    e-stop on the control panel is situated such that it is within arm�s reach of a
    normal sized adult who is accessing the scrap chute through the scrap chute
    guard.� (T. 618-20, 2350-51, 2255; see R-18 at 3).

41. When
    an e-stop button is depressed to engage the e-stop, the button itself
    illuminates with a red-colored light.� (T. 1993, 2254).� Engaging an e-stop
    also causes another red-colored light located on the top of the PCM to
    illuminate, signifying that the PCM is not running.� (T. 2269, 2579).� To restart
    a PCM after an e-stop has been engaged, the e-stop must be disengaged by
    turning and pulling on the e-stop button, and then the adjuster must execute a
    prescribed startup procedure.� The startup procedure includes an administrative
    procedure that entails the adjuster surveying the entire machine, returning to
    the control panel, hollering the word "clear," and then waiting a few
    beats before restarting the PCM from the control panel.� (T. 2267, 2482-83,
    2267-68; Ex. R-19).� The PCMs make an audible beeping noise upon restarting.�
    (T. 160).�

42. No
    scientific, technical or other specialized evidence was presented that would
    establish that after an e-stop on a PCM has been engaged, that the PCM is
    capable of unexpectedly energizing, starting up, or releasing any stored
    hazardous energy, even in the circumstance in which the e-stop were to fail.

Lockout/Tagout

43. AJM
    has a general energy control program at the Facility, called the Control of
    Hazardous Energy Lockout/Tagout Policy, that generally governs LOTO at the
    Facility.� (T. 432; Ex. C-3).� AJM trains adjusters as �authorized� employees
    (as that term is defined in 29 C.F.R. � 1910.147(b)) and issues adjusters
    personal locks that they must keep on their belt loops.� (T. 2789).�

44. AJM
    has developed written machine-specific LOTO procedures for each of its
    machines, including the PCMs.� (T. 413-14, 2474-75; Ex. R-15).� These
    machine-specific procedures are tagged on each machine.� (T. 2474-76).� AJM
    conducts monthly unannounced random inspections requiring selected authorized
    employees to demonstrate proficiency in executing a machine�s LOTO procedure.�
    (T. 1481-86, 2160, 2417-18; Ex. R-5).

Clearing
Paper Jams

LOTO Method and E-Stop Method

45. Paper
    may become jammed in a variety of locations in PCMs, including the feeder, the
    cutting die, the scrap chute, the rails, and the forming dies.� (T. 74, 87-90,
    306, 2037-38, 2042-44, 2488-89).� The adjusters are generally responsible for
    clearing paper jams.� (T. 73-74, 87-90, 183, 194, 305).

46. AJM
    uses the term �paper jam� to describe scrap paper improperly accumulating in
    the scrap chute, even in those circumstances when the PCMs continue to operate
    and produce finished products despite the accumulation.� (T. 2253, 2290, 2292,
    2314).

47. It
    is a common occurrence for scrap paper to fail to be discharged from the scrap
    chute and sometimes accumulate there over multiple cycles of the cutting die.�
    (T. 87-90, 183-85, 196, 225-26, 306,
    2037-39, 2491-92, 2534-35).� This can happen in a variety of ways.� Scrap
    sometimes accumulates because the air nozzle malfunctions and fails to blow it
    out.� (T. 87-90, 183-84, 306,
    2037-38).� Dull blades on the cutting die can result in scrap paper
    accumulating in the scrap chute.� (T. 306).� Sometimes the scrap paper gets
    snagged on the air nozzle or on the frame. � (T.
    196, 225-26). � Sometimes the exit portal
    on the discharge side becomes blocked, causing scrap paper to back up in the scrap chute.� (T. 185).�

48. The
    PCMs shut down automatically when sensors that are located between the forming
    die and the stacker detect that newly formed plates are not exiting the forming
    die.� (T. 2041, 2101).� The accumulation of scrap paper in the scrap chute
    sometimes triggers these sensors and causes the PCM to shut down automatically. � (T. 2041).� But it is also possible for
    scrap paper to accumulate in the scrap chute and for finished plates and bowls
    to continue to exit the forming die.� In that situation, a PCM would not shut
    down automatically but would continue to run until an employee manipulated the
    controls or engaged an e-stop.� (T. 2041).�

49. Regardless
    whether a PCM shuts down automatically when scrap paper fails to be discharged
    from the scrap chute, an adjuster is required to remove the scrap paper from
    the scrap chute.� This is typically done by the adjuster reaching into the
    scrap chute to remove the scrap paper by hand, and not by using a tool or
    instrument.� (T. 330, 2488-89).

50. In
    clearing scrap paper from the scrap chute, AJM allows employees to access the
    scrap chute through the scrap chute guard on the operator�s side of a PCM by
    shutting down the PCM in one of two ways.� One way is for the employee to
    implement the PCM�s LOTO procedures.� The other way is for the employee to stop
    the PCM by engaging the e-stop button located on the control panel, opening the
    scrap chute guard and then reaching into the scrap chute to grasp and remove
    the scrap paper manually (all the while remaining within arm�s reach of the
    e-stop), and then re-starting the machine using a prescribed protocol.� (T.
    228-29, 353-54, 588, 2253-55, 2419-20, 2278, 2816-17, 2632).� [N OTE :�
    For ease of reference, these two methods for clearing paper jams by accessing
    the scrap chute through the open scrap chute guard are henceforth referred to
    respectively as the LOTO Method and the E-Stop Method .]�

51. If
    in the course of clearing a paper jam using the E-Stop Method it becomes
    necessary for the adjuster to move away from within arm�s reach of the e-stop,
    the employee must abandon use of the E-Stop Method and continue only after
    executing the PCM�s LOTO procedure.� (T. 240).�

52. There
    is no evidence that any of the three adjusters who were operating the PCMs
    identified in instances �a�, �b� or �c� of the LOTO citation were utilizing the
    E-Stop Method at the time that the violative conditions were alleged to have
    occurred on August 25, 2016.

53. There
    was no scientific, technical, or other specialized evidence that employees who
    serviced or maintained the PCMs by utilizing the E-Stop Method would be exposed
    to the unexpected energization or startup of the PCM or the release of
    hazardous energy.

Bypassing
Scrap Chute Guard to Clear Paper Jams

54. Some
    adjusters developed a practice of sometimes not using either the LOTO
    Method or the E-Stop Method to clear scrap paper from the scrap chute.�
    Instead, some adjusters sometimes bypassed the scrap chute guard
    of operating PCMs and reached inside the scrap chute area to manually grab and
    remove the scrap paper as the PCM continued to run.� (T. 87-89, 92-93, 194,
    199-201, 316-19, 660-62, 1127).� Some
    adjusters learned this technique from other adjusters early in their
    employment.� (T. 92-93, 201-03, 319-21, 334, 662-63, 670-72).� Use of this technique violated AJM�s work rule that
    all guards be closed while a PCM is running.

Work Rules for Adjuster Servicing
Activities

55. On
    February 6, 2015, an adjuster sustained an amputation injury at the Facility
    while attempting to clear a paper jam located in the cutting die.� (T. 467-69,
    601-02; Ex. C-37 at 47).� In his effort to clear the paper jam, the employee
    stopped paper feeding to the cutting die, but he did not shut down the PCM so
    the cutting die continued to reciprocate in its cutting action.� (T. 634-35).�
    With the PCM cycling in this way, the employee moved to the rear of the PCM
    near the interlocked rear access doors, and without opening the rear access
    doors (and thus not activating the interlock feature of those doors) he
    inserted his arm into the machine through an opening that is near the rear
    access doors.� (T. 631-32).� With the cutting die continuing to reciprocate,
    the employee pushed up on the scrap chute so that it pivoted upwards.� The
    lifting of the scrap chute created space for his fingers to contact the
    reciprocating cutting die and resulted in him sustaining the amputation
    injury.� The amputation injury was not caused by the scrap chute falling down
    from its raised position, but rather was the result of the scrap chute�s raised
    position creating a space through which the employee could insert his hand and
    expose his hand to the reciprocating cutting die.� (T. 629-36).

56. The
    activity related to the amputation injury on February 6, 2015 resulted in OSHA
    issuing a citation to AJM in July 2015 that alleged two violations of two
    different provisions of the LOTO standard, specifically �� 1910.147(c)(4)(i)
    and 1910.147(d)(4)(i).� (Exs. C-27, C-28).� Those alleged violations became a
    final order of the Commission on August 11, 2015, by operation of an informal
    settlement agreement resolving the citation.� (T. 852-53, 855-60; Ex. C-30).

57. A
    few days after the amputation injury on February 6, 2015, AJM instituted a rule
    that prohibited adjusters from raising the scrap chute to clear a paper jam.�
    (T. 1051-52, 2422-23; Ex. R-14 at 3-5).� AJM trained adjusters on the new rule
    and documented that training by having the adjusters sign a training document
    that provided as follows:

The following
employees have received training on; [sic] not to raise the scrap shoot [sic] [24] to clear a jam.

All adjusters:
NEVER raise the scrap shoot [sic] to clear a jam.� This shoot [sic] acts as a
guard when clearing out jams from under the machine.� Exposure to the scrap
knife is extremely dangerous while the machine is running.� To clear a jam, you
must go under the machine and remove the jam with the scarp [sic] shoot [sic]
in place.� NEVER try to reach in from the sides of the machine.� This is part
of our safety SOP and is strictly enforced. � (Lock out Tag out)

In
the training document, the ending parenthetical phrase �(Lock out Tag out)� was
handwritten, while the remainder was in bold typeface.� (Ex. R-14 at 3-5).� The
term �scrap knife� in the document is a reference to the cutting die.�

May
8, 2016 Injury to W.F .

58. An
    employee with the initials W.F. was one of the 27 adjusters whom AJM trained in
    February 2015 on the new rule not to raise the scrap chute to clear paper
    jams.� (Ex R-14 at 4).� On May 8, 2016, about 15 months after the
    new rule was implemented, W.F. sustained a partial amputation of his middle
    finger as he was attempting to clear a paper jam located in the cutting die of
    PCM #16.�

59. W.F.
    sustained the injury when the PCM was shut down because he had activated an
    e-stop and he had also opened the interlocked rear access doors.� W.F. had
    raised the scrap chute in trying to clear the paper jam, and he had finished
    clearing it when the scrap chute fell from its raised position and pinched his
    middle finger against the stationary cutting die. � (T.
    469-71, 602-03, 2734-35, 2792; Ex. C-37 at 60).

60. W.F.�s
    actions immediately preceding his amputation injury were as follows.� W.F.
    discovered that blanks were jammed near the cutting die. �(T. 2735-37).� Despite the jam, the PCM had continued to
    cycle, so W.F. shut down the PCM by engaging the e-stop button on the control
    panel.� (T. 2737-38; Ex. C-16).� W.F. then walked to the back of the PCM,
    opened the rear access doors, and saw about 60 blanks jammed near the cutting
    die.� (T. 2738-41; Ex. C-22).� He reached up and tried to pull the blanks out
    with his hand, but they were too tightly jammed for him to do so.� (T. 2741-44) .�
    W.F. believed that his effort to remove the jammed blanks was being impeded
    by the scrap chute.� He returned to the operator�s side of the machine, opened
    the hinged scrap chute guard to access the scrap chute, and then pivoted the
    scrap chute up to its raised position.� He then attempted to remove the jammed
    blanks by reaching his arm through the open scrap chute guard, but without
    success.� (T. 602-03, 2741-45).� W.F. then returned to the opened rear access
    doors and from that position he again reached up into the machine to remove the
    jammed blanks.� (T. 2745-46).� He succeeded in removing the jammed blanks from
    that position, and as he was finishing the scrap chute fell from its upright
    position and pinched his middle finger against the then stationary cutting die,
    resulting in the amputation of part of the finger.� (T. 510-11, 603, 2746).�
    The scrap chute had been in its raised position for about four to five minutes
    before it fell.� (T. 2747).� W.F. was taken to the hospital for treatment.� He
    returned to work about four or five days later.� (T. 530, 2112, 2761).

61. On
    May 25, 2016, about twelve days after W.F. returned to work, AJM imposed formal
    discipline on W.F. (a written warning) for having violated the work rule that
    prohibited raising the scrap chute.� (T. 530-31, 2114-18, 2761; Ex. R-9 at 4).

62. None
    of the PCMs were outfitted with any means to secure the scrap chute in place
    once it had been raised to its upright position.� AJM has never trained or
    instructed adjusters to attempt to secure the scrap chute in place after
    raising it to its upright position and has never provided adjusters with any
    means to do so. � (T. 535, 591, 1096,
    2744).�

63. W.F.
    learned to lift the scrap chute during his initial on-the-floor training in
    2012, and it was his common practice to lift the scrap chute when clearing
    paper jams.� (T. 2731-32, 2746-47).� AJM did not prohibit that practice until
    after the amputation injury that had occurred in February 2015.� Before he was
    injured, W.F. lifted the scrap chute to clear paper jams approximately four
    times per shift, and he typically left the scrap chute in the raised position
    for at least one minute each time.� (T. 2748).� W.F. continued to do this even
    after he had been instructed in February 2015 on the new rule not to lift the
    scrap chute to clear paper jams. [25] �

64. WF�s
    attempt to clear the paper jam on May 8, 2016 during which he was injured
    constituted a service or maintenance activity and was not itself part of normal
    production operations.

65. AJM
    did not have actual knowledge before the amputation injury that W.F. had raised
    the scrap chute while attempting to clear the paper jam on PCM #16.

66. The
    evidence is insufficient to establish that AJM failed to exercise reasonable
    diligence to prevent or discover that W.F. had raised the scrap chute of a PCM
    to an upright position while clearing a paper jam on May 8, 2016 (thereby
    creating gravitational energy that could unexpectedly release and cause him
    injury).

2016 OSHA Inspection

67. On
    May 26, 2016, the CO conducted an on-site inspection at the Facility and
    inspected PCM #16, which was the PCM involved in the amputation injury that had
    precipitated the inspection.� (T. 961-64).

68. On
    August 25, 2016, the CO returned to the Facility to investigate a complaint
    pertaining to cutting die guards having been installed on some PCMs but not on
    others.� (T. 792).� The CO conducted a walkaround inspection of the production
    floor, during which the plant manager (Roger Finckbone) and the human resource
    manager (Robert Cutler) accompanied him.�

69. The
    CO testified that during the walkaround he first observed adjuster Brandon
    Mendieta sticking his hand into an operating PCM (PCM #13) to remove scrap
    paper from the scrap chute area.� (T. 830).

70. The
    CO testified that he then observed another adjuster (James Beals) doing �the
    exact same function� as the CO had just seen Mendieta do.� (T. 831).�

71. The
    CO testified that he then turned his attention back to Mendieta and saw him
    removing scrap a second time from the same operating PCM (#13) by inserting his
    forearm into the scrap chute, and that Mendieta then �walked away from the
    machine, leaving the scrap chute door wide open.�� (T. 832).�

72. The
    CO testified that in between the two times he observed Mendieta reach into PCM

13, he observed James Beals place his hand inside the scrap chute and remove

scrap paper of another operating PCM (PCM #27), in a movement that took one to
three seconds.� (T. 819, 823-24).� The CO did not make any comment or remark to
either Finckbone or Cutler that he had seen Beals reach inside an operating
PCM.� (T. 1068, 1590, 2519).

73. Neither
    Finckbone nor Cutler observed Beals reach in the PCM in the manner that the CO
    testified he had witnessed.� Finckbone saw Beals do something else�he observed
    Beals open the scrap chute guard of PCM #27 while the machine was operating and
    peer into the scrap chute area. �Finckbone further observed Beals rapidly close
    the scrap chute guard after Beals realized that Finckbone was observing him
    violate the work rule that all guards be closed during machine operations.� (T.
    1589, 2516-18, 2516-17, 1589).� Finckbone instructed his staff to issue a
    written warning to Beals for this violation of a work rule, but no such warning
    was issued.� (T. 2529-30).

74. The
    CO testified that he then saw adjuster Andrew Thompson open the scrap chute
    guard of PCM #30, reach his hand into the scrap chute area up to mid-forearm,
    remove the excess scrap paper, and close the scrap chute guard, in movements
    that took only one to three seconds.� (T. 839).� The CO did not tell either
    Finckbone or Cutler what he believed he had seen Thompson do.� (T. 1068).� The
    CO observed Cutler approach Thompson and speak to him, although the CO could
    not hear what was being said between them.� (T. 840).� When Cutler returned to
    the CO�s side, he remarked to the CO that Thompson would be �retrained,� and
    there was no further discussion between the two about Thompson�s activities.�
    (T. 840, 1065-66).�

75. When
    the CO saw Cutler speaking privately to Thompson in the course of the CO�s
    walkaround, Cutler was reprimanding Thompson for having left the forming die
    guard off the PCM.� (T. 1588).

76. During
    the CO�s investigation, the plant manager (Finckbone), the human resources
    manager (Cutler), and one of the floor supervisors (Lena Mays), each told the
    CO that employees were required to employ LOTO procedures whenever clearing a
    paper jam, and that there were no exceptions to this policy.� (T. 779-81,
    2853).� In their communications with the CO over the course of the inspection
    and investigation, none of AJM�s managers or floor supervisors volunteered the
    information that adjusters had the option to utilize the E-Stop Method when
    clearing scrap paper from the scrap chute area, or ever mentioned to the CO the
    existence of the E-Stop Method.� (T. 2851, 2853).

Training

77. New
    employees who are hired to become adjusters initially receive classroom
    training on a variety of subjects, and then they are assigned to work alongside
    an experienced adjuster whose task is to teach the new employee how to do the
    various tasks necessary to operate the PCMs.� This aspect of new adjuster
    training is known as �on-the-floor� training, and the new employees being
    trained are known as �adjuster-trainees.�� The duration of an
    adjuster-trainee�s on-the-floor training varies from three to six months.� (T. 1740-42, 1925-26,
    2014-15).� The on-the-floor training is deemed completed once the
    adjuster-trainee demonstrates to the trainer proficiency in 93 tasks that are
    detailed on a five-page �New Adjuster Checklist.�� (Ex. R-35 at 5-10; Ex. R-41
    at 59-65; T. 2083-90).� There are at least three or four experienced adjusters
    who are designated to provide on-the-floor training to adjuster-trainees,
    although the record does not indicate the precise number.� (T. 2430-31). �There
    is no evidence addressing what training or instructions the experienced
    adjusters receive, if any, regarding the content and manner of conducting
    on-the-floor training of the adjuster-trainees.

Supervision
on the Production Floor

78. AJM�s
    production managers spend the majority of their time on the production floor,
    observing and monitoring the activities of the 8 to 12 adjusters who are on the
    floor during any given shift, as well as monitoring the activities of the
    packers and other workers on the production floor.� (T. 1432-33, 1435, 1592,
    1861-62, 1881-82, 1929, 1931-32, 1934, 2188-89, 2335-37, 2455-57, 2565-66).

Discipline

79. AJM
    has a formal written disciplinary policy that includes a rule (Rule 6) that
    addresses safe work practices, and which provides as follows:

Non-compliance
with safety regulations or common safety practices or failing to immediately
reporting [sic] injures [sic] to supervisor is strictly prohibited.� Conduct
such as, but not limited to, running on the premises, horseplay, throwing
objects, pushing or shoving, failure to wear safety apparel, or
performing an unsafe act will not be tolerated.

1st Violation �
Written Warning

2nd Violation � 3
Day suspension

3rd Violation �
Discharge

(Ex.
R-22, at 3).

80. AJM�s
    supervisors and managers have discretion not to apply the progressive
    disciplinary protocol specified in Rule 6, but rather are permitted to render
    informal oral discipline and corrective action to an offending employee in lieu
    of initiating the formal discipline prescribed by the disciplinary policy.� (T.
    527-28, 1473-75, 2166, 2180-81, 2292, 2453-54, 2534).

81. AJM�s
    written LOTO policy specifies a progressive discipline protocol for violations
    of that policy that is marginally more lenient than the progressive discipline
    protocol set forth in Rule 6.� The progressive discipline protocol set forth in
    the LOTO policy provides for imposing an oral warning for a first violation, a
    written warning for a second violation, and termination for a third violation.�
    (Ex. C-3 at 10).� There is no evidence that AJM had ever disciplined an
    employee for a violation of the LOTO policy .�

82. From
    time to time, AJM imposed progressive discipline at the Facility for safety
    violations according to the progressive discipline protocol set forth in Rule
    6.� The 104 documented instances of discipline for Rule 6 violations reflected
    in the record occurred in the years 2013 to 2017. [26] � Ninety-seven
    of those 104 disciplinary events were for first offenses.� (Ex. R-6; Ex R-23;
    Ex. R. 26 at 2 �3, 9�10, 12-13; Ex. R-27 at 18 ).�
    Eighteen of those 104 documented disciplinary events occurred after the
    citation was issued on September 30, 2016, and seventeen of those eighteen were
    for first offenses.� ( Id. )� For the eight documented second violations
    of Rule 6, the prescribed three-day suspension was waived for three them.� (Ex.
    R-6 at 1 and 81; Ex. R-26 at 9).� AJM did not present documentation of any
    employee at the Facility having been cited for a third violation of Rule 6, for
    which termination is the prescribed sanction.� The only evidence of an employee
    being terminated for a violation of safety rules was a single instance of an
    employee having been under the influence of alcohol when he sustained an
    amputation injury while trying to clear a paper jam from an operating PCM.� (T.
    2543-44; Ex. R-23 at 2).

Glove Policy

83. After
    the finished paper plates and bowls exit the forming die of a PCM, they travel
    a short distance by conveyors to a part of the PCM called the �stacker.�� When
    a sufficient stack of the plates or bowls amass in the stacker (typically
    between 8 and 100 items in a stack) the stack proceeds on another conveyor to
    the wooden runout table.� (T. 2196-99).� The employees called �packers� then
    pick up the stacks with their hands.� (T. 483-84).� The stacks arrive on the
    runout table still retaining heat that had been transferred to them from the
    brief time each plate or bowl was compressed in the heated forming die.� (T.
    2006 ). �The
    amount of time a blank spends in the heated forming die is necessarily some
    fraction of 1.33 seconds.�

84. Packers
    work eight-hour shifts picking up stacks of plates and bowls as they exit the
    PCMs and then bagging them.� (T. 553, 483-84).� The packers pick up thousands
    of stacks over the course of each shift.� (T. 483-84, 553-55).

85. AJM
    requires that packers handling the stacks do so with either clean bare hands or
    while wearing clean gloves.� (T. 486-87).� For sanitation purposes, AJM
    requires that packers who have an open wound or a bandage on their hand, or who
    are wearing fingernail polish, wear cotton gloves that AJM provides.� (T. 486,
    515-17).�

86. AJM
    does not supply protective gloves to packers or other employees to protect the
    employees from the heightened temperature of the stacks of paper products.� But
    some packers who are not required to wear gloves for hygiene reasons choose to
    wear gloves that they supply themselves, some to protect from paper cuts and
    friction from twisting plastic bags, and some to insulate their hands from the
    temperature of the plates.� (T. 1937, 2004,
    558;
    804-08, 814). � Approximately 75-80% of packers on the third shift
    choose not to wear gloves.� (T. 1937).

87. The
    forming dies of the PCMs operate at temperatures of between 250 and 350 �F, but
    in colder weather the upper die may operate up to 375 �F and the lower die may
    operate up to 425 �F.� (T. 1268).� No evidence was presented of any measured
    temperatures of the finished stacks of paper plates or bowls.� (T. 233-34,
    867).

88. There
    is no evidence of any packer or any other employee having ever been burned or
    blistered from the temperature of the plates exiting the PCMs.� There is no
    evidence of any member of management receiving a complaint or report of any
    thermal injury to hands caused by handling the stacks of paper plates and
    bowls.�

III.
DISCUSSION

To establish a violation of an OSHA
standard, the Secretary must show by a preponderance of the evidence that: (1)
the cited standard applies; (2) there was noncompliance with its terms; (3)
employees had access to the violative conditions; and (4) the cited employer
had actual or constructive knowledge of those conditions.� Donahue Indus.
Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 2003).

As discussed below, the Secretary failed
to meet his burden to establish either the LOTO or the hand protection
citation, so both citations must be vacated.�

A.� Control of
Hazardous Energy (LOTO) Citation � � 1910.147(c)(4)(i)

The Secretary
alleges AJM violated subparagraph (c)(4)(i) of the LOTO standard
(� 1910.147), which provides as follows: �(4) Energy control procedure. �
(i) Procedures shall be developed, documented and utilized for the control of
potentially hazardous energy when employees are engaged in the activities
covered by this section.��

The amended LOTO
citation alleges that AJM violated � 1910.147(c)(4)(i) in four discrete
instances (designated as instances �a�, �b�, �c� and �d�).� Instances �a�, �b�
and �c� were all alleged to have occurred on or about August 25, 2016, and to
have involved respectively PCMs #27 (operated by James Beals), #13 (operated by
Brendan Mendieta) and #30 (operated Andrew Thompson).� Instance �d� was alleged
to have occurred on or about May 9, 2016 in connection with the amputation
injury involving PCM #16 (operated by W.F.). [27] �

For each of the
four instances of the alleged LOTO violation, the Secretary�s complaint sets
forth identical descriptions of the manners in which AJM is alleged to have
violated the standard.� Each of the four instances avers that �[l]ockout
procedures were not utilized and lockout devices were not affixed by an
authorized employee performing tasks such as, but not limited to, clearing jams
on the Peerless Cutting Machine.�� (Emphasis added).� Each of the four alleged
instances was tried on this theory as pleaded�the alleged failure to utilize
LOTO procedures. [28]

With respect to
instances �a�, �b� and �c�, the Secretary�s theory of the case, as defined by
the complaint and then developed by the evidence presented in his case in
chief, was that on August 25, 2016, three different adjusters operating three
different PCMs bypassed the scrap chute guard and inserted their arm or hand
into the scrap chute of an operating PCM to remove scrap paper from the scrap
chute area. �

1.� The LOTO Standard Applies to Instances
�a� and �c�

The LOTO standard
applies to the conduct alleged to have occurred with respect to instances �a�
and �c�.�

The LOTO
standard�s �scope� provision states that the �standard covers 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.�� � 1910.147(a)(1)(i).�

An adjuster�s act
of manually clearing scrap paper from the scrap chute area of a running PCM (as
the Secretary alleges occurred in instances �a� and �c�) constitutes a
servicing activity within the meaning of the term �servicing and/or
maintenance� as defined in � 1910.147(b). [29] � See Sec'y of Labor v.
Action Elec. Co. , 868 F.3d 1324, 1335 (11th Cir. 2017) (noting that the
issue of the applicability of the LOTO standard does not necessarily turn on
the �workplace activities� identified in the standard�s definition of
�servicing and/or maintenance,� but rather that the standard�s �clear thrust �
is broadly to ensure safety where an employee performs legitimate workplace
activities directed at the relevant machine� where the employee may be exposed
to hazardous energy while engaged in such activities); Otis Elevator Co. v.
Sec�y of Labor , 762 F.3d 116, 123 (D.C. Cir. 2014) (determining the text of
the LOTO standard contemplates its application to �unjamming� work, and also
�comports with the standard's preventative purpose�).

Whether an energy
source presents the potential for hazardous energy involves a two-pronged test:
(1) whether unexpected energization, start up or release of stored energy could
occur, and (2) if it can occur, whether it could cause injury to employees. �Otis
Elevator , 762 F.3d at 121; see also � 1910.147(c)(1) (requiring
employers to establish a LOTO program �where the unexpected energizing, start
up or release of stored energy could occur and cause injury�); Control of
Hazardous Energy Sources (Lockout/Tagout), 54 Fed. Reg. 36644, 36666 (Sept. 1,
1989) (to be codified at 29 C.F.R. pt. 1910) (�If an energy source does not
have the capability of causing injury to employees, it is not �hazardous
energy� within the scope of this standard.�).

As set forth in
� 32 of the Findings of Fact, the clearing of scrap paper from the scrap
chute of a running PCM that lacked a cutting die guard involves placing a hand
or arm within inches of the PCM�s reciprocating cutting die and would expose an
employee to the hazardous energy present in the reciprocating cutting die.�
This is the service activity that is alleged to have occurred with respect to
instances �a� and �c�.� PCMs #27 and #30, (the machines identified respectively
in instances �a� and �c�) had not yet been outfitted with cutting die guards on
the day of those alleged violations (August 25, 2016), and thus the cited LOTO
standard applies to the activity alleged for those two instances.� See
Burkes Mechanical, Inc. , 21 BNA OSHC 2136, 2139-40 (No. 04-475, 2005)
(rejecting argument that the LOTO standard was not applicable on the asserted
ground that �employees were aware the conveyor was running while they cleaned
underneath it.�).�

2.�
The LOTO Standard Was Not Proven to Apply to Instance �b�

Instance �b�
pertains to PCM #13 and the alleged conduct of adjuster Brandon Mendieta on
August 25, 2016 of twice reaching into the PCM�s scrap chute to remove scrap
paper when the machine was running.� PCM #13 was one of four PCMs at the
Facility on August 25, 2016 on which a cutting die guard had been installed.�
(Findings of Fact � 30).� As found in � 31 of the Findings of Fact,
the evidence was insufficient to establish that any employee who inserted an
arm or hand into the scrap chute of an operating PCM that was outfitted with a
cutting die guard could contact the cutting die.� Even though AJM maintained a
work rule forbidding employees from opening guards while PCMs were running
(including PCMs in which a cutting die guard had been installed), the evidence
was insufficient to establish that it was possible for employees to sustain an
injury from the reciprocating cutting die when bypassing the scrap chute guard
and inserting a hand or arm into the scrap chute of an operating PCM on which a
cutting die guard had been installed.� See Gen. Motors Corp., GM Parts Div. ,
11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) (consolidated) (�An employer�s
safety recommendations do not establish that such precautions were necessary in
order to comply with a standard�), aff�d , 764 F.2d 32 (1st Cir. 1985).�
An essential element in determining whether the LOTO standard applies to any
given workplace activity is that an employee could be injured while engaging in
that activity.� Otis Elevator Co. , 762 F.3d at 121.� That essential
element is absent with respect to the service activity alleged in instance �b�
involving PCM #13 on August 25, 2016. [30] �

3.� The LOTO Standard Applies to Instance
�d�

The Secretary�s
theory as to instance �d� is that hazardous gravitational energy is present in
a raised scrap chute that must be controlled during service or maintenance
activities by a physical restraint such as a block to prevent it from
unexpectedly falling and injuring an employee.� (Sec�y Br. at 27-28).�

AJM argues that
the LOTO standard is inapplicable to instance �d�, contending that the standard
does not apply to gravitational energy that is �manually created by an employee
after rendering the machine to a zero mechanical state.�� (Resp�t Br. 52).�
This argument is rejected.� AJM points to commentary in the LOTO standard�s
preamble as support for its argument, but that commentary evinces the Secretary�s
rationale for not incorporating the concept of �zero mechanical state�
into the LOTO standard.� 54 Fed. Reg. at 36678.�

More importantly,
the text of the LOTO standard does not permit the interpretation that AJM
urges.� The LOTO standard �applies to the control of energy during the
servicing and/or maintenance of machines and equipment.�� � 1910.147(a)(2)(i).�
The defined term �service and/or maintenance� does not embody the temporal
component that AJM now urges, but provides simply that the term means
�[w]orkplace activities � where the employee may be exposed to the unexpected �
release of hazardous energy� without reference to whether such �hazardous
energy� was present either before or after servicing or maintenance activities
commenced. � 1910.147(b) (quoted in full supra footnote 8).� There are
likely myriad scenarios involving the service or maintenance of complex
machinery during which hazardous energy materializes while the workplace
activity is progress.� To allow such a workplace activity to proceed without
requiring that the hazardous energy be controlled to protect employees from
injury would be at odds with the LOTO standard�s stated purpose �to prevent
unexpected energization, start-up or release of stored energy in order to
prevent injury to employees.�� � 1910.147(a)(3)(i); see also Action
Elec. , 868 F.3d at 1335 (noting that the LOTO standard�s �clear thrust � is
broadly to ensure safety where an employee performs legitimate workplace
activities directed at the relevant machine� where the employee may be exposed
to hazardous energy while engaged in such activities).� The cited LOTO standard
applies to instance �d�.

4.� Collateral
Issue as to Application of LOTO Standard �

The �E-Stop Method� For Clearing Scrap
from Scrap Chute

AJM�s work rules
required that all guards on the PCMs be closed while the PCMs were running.�
(Findings of Fact � 30).� Compliance with that rule would preclude an
adjuster opening the scrap chute guard for any purpose while a PCM is running,
to include bypassing the scrap chute guard to manually clear scrap paper from
the scrap chute.

AJM permitted
adjusters to open the scrap chute guard and reach inside the scrap chute area
of PCMs to clear scrap paper manually when the machines were not running
by using either the LOTO Method or the E-Stop Method .� ( See
Findings of Fact � 50).� The LOTO Method involves utilizing LOTO
procedures.� The E-Stop Method entails an adjuster activating the e-stop button
located on the PCM�s control panel and then, while remaining within arm�s reach
of the e-stop button, opening the scrap chute guard and manually clearing scrap
paper from the scrap chute area.�

The Secretary
argues that utilization of the E-Stop Method is itself violative of the
LOTO standard, while AJM argues that the LOTO standard does not apply when
adjusters employ the E-Stop Method.� (Sec�y Br. 33-34; Resp�t Br. 74-79; Resp�t
Reply Br. at 30-34).� The E-Stop Method is not directly implicated in
adjudicating whether AJM violated the LOTO standard in any of the four
instances alleged in the amended complaint, because there is no evidence that
any of those instances involved employees utilizing the E-Stop Method. [31] �
It is therefore unnecessary to adjudicate whether utilization of the E-Stop
Method violates the cited LOTO standard as the Secretary contends.� However,
considering the substantial effort put into litigating this issue, the merits
of the question are addressed herein for the benefit of both the parties and
any reviewing tribunal that may be asked to consider the question.� Because the
Secretary failed to establish that using the E-Stop Method would expose
employees to potential injury from the unexpected energization of the cutting
die ( see Findings of Fact �� 39, 42, 53), the Secretary has not
established that the LOTO standard applies when employees utilize the E-Stop
Method, as is discussed next in greater detail. [32] �

The LOTO
standard�s �scope� provision, � 1910.147(a)(1)(i), provides that the standard
�covers 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.�� Thus, the LOTO standard �applies only
where the Secretary shows that unexpected energizing, start up or release of
stored energy could occur and cause injury.�� Gen. Motors Corp., Delco
Chassis Div. (GM-Delco) , 17 BNA OSHC 1217, 1218 (No. 91- 2973, 1995)
(consolidated), aff'd , 89 F.3d 313 (6th Cir. 1996).�

The E-Stop Method
does not itself constitute a protocol that would meet to the LOTO standard�s
substantive requirements, and AJM does not argue that it does. [33] � (T.
585).� The Secretary argues that only LOTO procedures may be used to clear
scrap paper from the scrap chute, and consequently AJM�s use of the E-Stop
Method to do so violates the cited LOTO standard. �

The Secretary
failed to establish that the LOTO standard applied to the use of the E-Stop
Method because the evidence was insufficient to support the conclusion that the
unexpected energization or startup or release of stored energy could occur and
cause injury while clearing scrap paper by using the E-Stop Method.� ( See
Findings of Fact �� 39, 42, 53).

The Commission has rejected the
Secretary�s implicit position that the LOTO standard �presumes that there
always is a hazard of unexpected energization, etc., on every industrial
machine and piece of equipment during servicing and maintenance.�� GM-Delco ,
17 BNA OSHC at 1220.� Rather, the Commission has determined that the �terms of
the standard clearly place the burden on the Secretary to show that
there is such a hazard as to the cited machines and equipment.�� Id.
(emphasis in original).� The Commission has decided that control circuit type
devices in machines may operate in such a manner that eliminates the potential
of injury from hazardous energy during certain servicing or maintenance
activities, so that the LOTO standard does not apply in those circumstances.� See
GM-Delco , 17 BNA OSHC at 1220 (determining LOTO standard not applicable
where employer relied on control circuit type devices, including electronically
interlocked gates and e-stop buttons, to eliminate the potential for injury
from hazardous energy); see also Alro Steel Corp. , 25 BNA OSHC 1839,
1854 (No. 13-2115, 2015) (ALJ) (rejecting the argument that �relying on
control circuitry allows the machine to remain energized and, therefore,
subject to unexpected energization through accident or mechanical failure,� and
determining LOTO standard was not applicable because control circuitry
prevented unexpected energization or start up or release of stored energy
during a particular servicing activity).

The Secretary
points to testimony that from time to time employees improperly utilized the
E-Stop Method by failing to stay within arm�s reach of the e-stop after having
opened the scrap chute guard.� (Sec�y Br. 33; e.g., T. 116-19, 331-32,
359-60).� Such an improper utilization of the E-Stop Method could constitute a
violation of the LOTO standard, because in such instances an employee could be
exposed to hazardous energy and resultant injury while performing service or
maintenance.� However, the testimony regarding such instances of the
mis-utilization of the E-Stop Method lacked specificity as to the time of
occurrence or the precise context of such occurrences.� That non-specific
evidence is insufficient to establish the violations alleged by instances �a�,
�b� or �c� involved the improper use of the E-Stop Method.�

The Secretary also
points to anecdotal evidence of instances of e-stops malfunctioning.� (Sec�y
Br. 33-34).� As set forth in the Findings of Fact (�� 39, 42, 53), the
preponderant evidence is that any failure in the e-stop circuit could result
only in the machine shutting off and remaining off.� (E.g., T. 1949, 2055-56,
2414, 2470, 2481-82).� The plant manager, Roger Finckbone, who has been
involved in the maintenance and servicing of the PCMs since 1997 (T. 2448),
testified that the e-stops on the PCMs fail in the �off� position and that
components of the machine cannot move if an e-stop fails.� This testimony was
more authoritative that the vague anecdotal testimony of two former employees
that engaging an e-stop (or activating the safety interlock upon opening the
rear access doors) did not always cause the PCMs to shut down immediately and
completely.� (T. 218-19, 229-30, 333-34).� Cf. Conagra Flour
Milling Co. , 16 BNA OSHC 1137, 1141 (No. 88-1250,
1993) (�Generally speaking, where employees testify from their own knowledge
and experience on matters that pertain to their specific work activities, their
testimony should be given greater weight than that of witnesses who do not have
first-hand experience with the operation in question�).

AJM�s written LOTO
procedures do not contain any description of the E-Stop Method.� (See Ex. C-3;
R-15 at 5-7, 13).� The Secretary argues that the absence of any such
description in AJM�s written LOTO procedures violates the provisions of the
LOTO standard that prescribe the content of written LOTO procedures.� (Sec�y
Br. 32).� See �� 1910.147(c)(4)(ii)(A)�(D); Angelica
Textile Servs., Inc. , 27 BNA OSHC 1246,
1250 n. 6 (No. 08-1774, 2018) (observing
that the � LOTO standard mandates that
procedures be documented� except in certain narrow circumstances) , vacated on other grounds , 803 F. App'x 542 (2d
Cir. 2020) (unpublished). � It is not necessary to adjudicate whether
AJM�s written LOTO procedures were deficient because the Secretary�s complaint
does not allege any deficiencies in the way AJM documented its LOTO
procedures.� Moreover, the parties did not consent to trying the unpleaded
issue of the adequacy of AJM�s written LOTO procedures.� See McWilliams
Forge Co., Inc. , 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (�Trial by
consent [under Fed. R. Civ. P. 15(b)] may be found only when the parties knew,
that is, squarely recognized, that they were trying an unpleaded issue.�)� This
decision and order does not adjudicate whether the LOTO standard required that
AJM�s written LOTO procedures describe either (1) the E-Stop Method, or (2) the
conditions in which employees were authorized to utilize the E-Stop Method to
clear scrap paper from the scrap chute.� Cf. S. Hens,
Inc. , No. 17-0029, 2018 WL 2017592 at *6
(O.S.H.R.C.A.L.J., Mar. 20, 2018) (concluding that the LOTO standard�s
provisions that prescribe the content of written LOTO procedures �is concerned
with the �how� of the lockout procedures, not the �when��), aff�d 930
F.3d 667, 676 (5th Cir. 2019).

AJM argues that
the E-Stop Method constitutes an alternative measure to LOTO procedures so that
it meets the �minor servicing exception� to the application of the LOTO
standard.� See N OTE to � 1910.147(a)(2)(ii)
(containing �minor servicing� exception to subparagraph (a)(2)(ii)).� This
argument is rejected.� AJM did not plead the minor servicing exception as a
matter in avoidance to the allegations of the complaint.� Westvaco Corp. ,
16 BNA OSHC 1374, 1377-78 (No. 90-1341, 1993) (noting that employer bears burden
of proving that the LOTO standard�s minor servicing exception applies); Fed. R.
Civ. P. 8(c)(1) (providing that �any avoidance or affirmative defense� must be
affirmatively stated in responsive pleading).� Also, the parties did not
squarely recognize that they were trying that unpleaded issue.� McWilliams
Forge Co., Inc. , 11 BNA OSHC at 2129-30 (trial of unpleaded issues by
consent).�

5.�
Collateral Issue as to Application of LOTO Standard �

Effectiveness of the Scrap Chute Door as a
Machine Guard

The Secretary asserts, in connection with
various arguments, that the hinged scrap chute guard located near the PCM�s
control panel was not an effective machine guard because adjusters could bypass
it quickly and with ease to clear scrap paper from the scrap chute of an
operating PCM.� The Secretary�s argument is based in part on the evidence that
(1) the manufacturer of the PCMs (Peerless) designed and manufactured the PCMs
with a barrier or guard for the scrap chute with an interlock circuit that
caused a running PCM to shut down when opened, (2) the PCMs at the Facility had
been modified in a manner that had eliminated or bypassed this interlock
feature, so that opening the scrap chute guard did not cause the PCMs to shut
down, (3) AJM designed, fabricated, and installed the scrap chute guards on the
PCMs at the Facility (T. 1324), (4) Peerless informed AJM that for safety
reasons it disapproved of the absence of interlock functionality on the guards,
and (5) after Peerless expressed those concerns, AJM did not re-configure the
guards to re-establish safety interlock functionality. [34]

The Secretary is substantially justified
in his criticism of the efficacy of the hinged scrap chute guard in preventing
employees from placing body parts in the dangerous scrap chute area of
operating PCMs.� The absence of an interlock feature on the AJM-designed scrap
chute guard would have reasonably supported an allegation that the scrap chute
guard violated the machine guarding standard found at 29 C.F.R.
� 1910.212(a)(1) because employees could easily bypass the guard and
access the dangerous scrap chute area of an operating PCM.� See
HBD/Thermoid, Inc. , 26 BNA OSHC 2068, 2080 (No. 16-1070, 2017) (ALJ)
(deciding that a hinged guard that was easily bypassed by employees was inadequate
and failed to meet the machine guarding requirements of � 1910.212(a)(1)),
citing Pass & Seymour, Inc. , 7 BNA OSHC 1961, 1964 n. 5 (No.
76-4520, 1979) (stating �such a guarding method is only acceptable if installed
in such a way that it cannot be easily circumvented by employees�); see also
Akron Brick and Block Co ., 3 BNA OSHC 1876, 1878 (No. 4859, 1976)
(stating that �the method of machine guarding should not be predominantly
dependent upon human behavior,� and that workers take to the job �any tendency
to neglect any specified course of conduct�).

But the Secretary did not cite AJM for
violating the machine guarding standard (subpt. O of 29 C.F.R. pt. 1910).�
Notwithstanding that the LOTO standard was �designed to seamlessly dovetail
with the machine guarding protections that apply during normal production operations
under� subpart O, Dayton Tire , 23 BNA OSHC 1247, 1253 (No. 94-1374,
2010), aff'd in pertinent part, 671 F.3d 1249 (D.C. Cir. 2012), the
matter of whether the hinged scrap chute guard met the requirements of the
machine guarding standard simply was not a matter put in issue by the
pleadings, nor did the parties squarely recognize that they were trying that
unpleaded issue.� McWilliams Forge Co., Inc. , 11 BNA OSHC at 2129-30
(trial of unpleaded issues by consent).

6.� Proof of
Non-compliance for Instances �a�, �b� and �c� -- Did Adjusters Bypass the Scrap
Chute Guard to Clear Scrap When the PCMs Were Running?

The CO�s approximately 30-minute
walkaround on the floor on August 25, 2016 spawned the LOTO violations that
were ultimately alleged in instances �a�, �b� and �c�. [35] � The CO
testified that during the walkaround he observed three adjusters on three
different PCMs bypassing the scrap chute guard of operating PCMs to reach into
the running machine and manually remove scrap paper.� These employees were
later identified to be James Beals on PCM #27 (instance �a�), Brandon Mendieta
on PCM #13 (instance �b�), and Andrew Thompson on PCM #30 (instance �c�).�

The CO�s
testimony, if accepted at face value, would prove the violative conduct alleged
in connection with each these three instances.� AJM presented considerable
countervailing evidence challenging the credibility and reliability of both the
CO�s testimony and the evidence that is corroborative of the CO�s testimony.�
The undersigned, as the finder of fact, must scrutinize the whole of the
evidence in determining whether the evidence that would prove the violative
conduct was preponderant.� For that reason, the following discussion goes into
considerable detail in describing evidence bearing on whether the Secretary
carried his burden to establish that there was noncompliance with the cited
standard in the manners the Secretary alleged and sought to prove for instances
�a�, �b� and �c�.� See Lake County Sewer Co. , 22 BNA OSHC 1522,
1524 (No. 07-1786, 2009) (requiring Commission judge to �address all
conflicting testimony, as well as any other record evidence relevant� to a
material issue); Agra Erectors, Inc. , 19 BNA OSHC 1063, 1066 (No.
98-0866, 2000) (directing Commission judge to �give reasons for crediting the
testimony of one witness over that of another that are accompanied by summaries
of pertinent testimony and reasons for crediting the testimony�).

The Secretary�s theory of these three
violations relates to a common servicing activity�removing scrap paper that has
become lodged in the scrap chute.� The Secretary argues that it was common
practice among adjusters at the Facility to use neither the LOTO Method nor the
E-Stop Method for removing scrap paper from the scrap chute area, but rather to
insert their hand or arm in the scrap chute of running PCMs to clear scrap
paper manually.� This is what the CO testified he saw three employees do on
three different PCMs during his approximate 30-minute walkaround on August 25,
2016.�

AJM argues that the activity that the CO
described the three employees doing was prohibited and that employees complied
with, and AJM effectively enforced, the work rule that all guards be closed
when the PCM is operating.� AJM contends the evidence that the three identified
employees had reached into operating PCMs in the manner that the CO described
was not sufficiently reliable or credible to prove by a preponderance that any
of those employees engaged in the activity alleged.

a. � Proof of
Non-Compliance -- Instance �a�

(PCM #27 Operated by James Beals)

The Secretary
failed to meet his burden to establish that AJM violated � 1910.147(c)(4)(i) in
the manner alleged in instance �a� of the LOTO citation.�

i. � Testimony of
CO and James Beals

Instance �a�
pertains to PCM #27 that James Beals was operating on August 25, 2016.� The CO
testified that during his 30-minute walkaround on the production floor, he
observed Beals engage in the following sequence of movements that occurred over
a period of �one to three seconds.�� (T. 817-19).� The CO testified that PCM

27 was in operation when he observed Beals open the scrap chute guard, reach

into the scrap chute area up to his mid-forearm, remove scrap paper from the
scrap chute area with his hand, and then close the guard.� (T. 817-19).� It is
undisputed that the CO did not comment or remark to either Finckbone or
Cutler about what he believed he had seen Beals do.� (T. 825 & 1068 (CO
testimony), T. 1590 (Cutler testimony), T. 2019 (Finckbone testimony)).�
Rather, after the walkaround the CO requested to speak privately with Beals,
and AJM arranged for the CO to do so.� The CO�s testimony about what Beals told
him in that private interview is murky.� The CO did not expressly state that
Beals had said to the CO privately that he had reached into the operating
machine earlier that day in the manner that the CO testified that he had
seen, although the CO unambiguously testified that Beals said that he sometimes
reached into operating PCMs to clear scrap paper.� (T. 829-30).

Beals testified
that he generally did not use the E-Stop Method to clear paper from the scrap
chute area unless �the paper jam was to the point where it was actually
overflowing out of the scrap chute itself.�� (T. 198).� He testified that
instead of using the E-Stop Method, he usually opened the scrap chute guard
while the PCM was in operation to clear out scrap paper that had gotten caught
up in the scrap chute.� (T. 194-199).� Beals testified that he did this between
two and twenty times a day for each PCM that he would be responsible for
operating at any given time.� The frequency with which the need arose to do
this was affected by such factors as the ambient humidity and the moisture
content of the paper stock.� (T. 194-199).� Beals testified that when removing
scrap paper from the scrap chute in this manner, he would sometimes insert only
his hand into the scrap chute area, while at other times he would reach in up
to his elbow, and that the length of time to complete that process was �a
couple of seconds,� which was all the time needed to �[j]ust open the door,
grab it, and keep it moving.�� (T. 199).�

Beals testified
that he learned to clear scrap paper from the scrap chute of operating PCMs in
this manner from his trainers and from observing other adjusters.� (T. 201).�
He testified that the practice �just came with the job� (T. 202) and was �just
the way we worked� (T.200).� He testified that he had once observed his floor
supervisor (Don Gaddy) do this on a PCM that Beals was operating after Gaddy
had come to assist him.� (T. 202).�

Beals also
described times when scrap paper would become snagged on the adjustable air
nozzle situated just inside the scrap chute door (which is the source of the
bursts of air that expel the scrap paper from the scrap chute).� (T. 196-99; see
also T. 84-85; Ex. C-12, photo depicting the green-colored air hose near
the center of the photo).�

Beals acknowledged
that AJM had a work rule that guards had to be in place when the PCMs were in
operation, and he acknowledged further that over his tenure at AJM from April
2015 to November 2016 he had been disciplined for violating that rule.� The
record reflects Beals being formally disciplined for violating that rule on
three separate occasions, the last such time being about eleven months before
his employment was terminated in November 2016 (for a non-safety related
infraction).� (T. 169, 258-260, 267, 274; Ex. R-26 at 21-29). Ex. R-26 at 2-3
[8/28/2015], 9-10 [10/15/2015], 12-13 [1/7/2016], 21-29 [termination
11/29/2016]).� None of those disciplinary events involved Beals clearing scrap
paper from the scrap chute of an operating machine.� Beals testified that he
had never been disciplined for bypassing the scrap chute guard and reaching
into an operating machine in the manner that he described having done routinely
during his work as an adjuster.� (T. 294).

Mr. Beals was not
asked, and he did not testify about, whether he had bypassed the scrap chute
guard to remove scrap paper during the CO�s walkaround on August 25, 2016 in
the manner that the CO testified he had observed Beals doing.�

ii. � Testimony of Former AJM Employees
Consistent with Beals� Testimony

Three other former
AJM employees called by the Secretary were corroborative of Beals� testimony
that the practice of clearing scrap paper from the scrap chute of operating
PCMs was a common practice of many adjusters.� Those former employees were
Dallas Benjamin, David Griner, and an employee with initials D.F.

(A).� Dallas Benjamin

Dallas Benjamin�s testimony was
corroborative of Beals� testimony with respect to the practice among adjusters
to bypass the scrap chute guard when the PCMs were operating.

Benjamin was employed by AJM for only
about three weeks.� He started in August 2016 as an �adjuster-trainee� and was
terminated soon thereafter for poor attendance.� (T. 72, 130-31, 134, 169).�
Benjamin testified he had been assigned two PCMs to operate (T. 137), even
though his training records indicate he remained an �adjuster-trainee�
throughout his brief tenure and that he did not complete new adjuster
training.� (Ex. R-33).� Like Beals, Benjamin described circumstances when scrap
paper became snagged or �caught� in the scrap chute.� (T. 87-88).� Benjamin
testified that he would sometimes open the scrap chute guard and clear the
scrap paper manually while the machine was running by reaching in the scrap
chute up to his forearm in a movement that took only �two seconds.�� (T. 88-92,
96).� Benjamin testified further that he would manually adjust the air nozzle
that is accessible through the scrap chute guard about ten times daily for each
machine he was assigned to operate, and that most of the time the PCMs were
running when he made this adjustment.� (T. 94-96).� He testified further that
he cleared scrap paper from the scrap chute of a single PCM between 30- and
60-times day, and about half those times the machine would be running.� For the
other half of those times, he would activate an e-stop when a paper jam in the
scrap chute �got out of hand,� or the PCM would stop automatically (apparently
when the sensor between the forming die and the stacker detected that finished
product was not exiting the forming die).� (T. 89-92).� Benjamin testified that
the process of reaching into the scrap chute of an operating machine to clear
scrap paper took a �few seconds,� in contrast to using the E-Stop Method, which
took �about a few minutes.�� (T. 121-22).� Benjamin did not know whether a
supervisor had ever observed him putting his hand or arm into an operating
PCM.� (T. 152).

Benjamin testified that his trainer, whose
name he did not recall, showed him how to clear scrap paper from the scrap
chute and adjust the air nozzle when the machine was operating.� (T. 75, 92-93,
96).� He testified that he observed other adjusters clearing scrap paper and
adjusting the air nozzle of operating PCMs every day that he had worked at
AJM.� (T. 93, 96-98).�

(B).� David Griner

David Griner�s
testimony was corroborative of Beals� account of the circumstances in which
adjusters bypassed the scrap chute guard of an operating PCM to remove scrap
paper and to adjust the air nozzle.�

Griner was employed
at AJM as an adjuster from September 2014 to January 2017. [36] � (T.
302-04; Ex. R-27 at 1; Ex. R-31).� Griner described scrap paper accumulating in
the PCM�s scrap chute when the air nozzle was �not blowing correctly� and when
the cutting die failed to make a complete cut of the paper stock.� (T.
306-07).� He testified that it was �not that often� that he would use the
E-Stop Method to clear scrap paper from the scrap chute.� (T. 316).�

Griner testified
that a �couple of times a day� he would clear scrap paper from the scrap chute
while the machine was running if the scrap paper �was right there where I could
get to it.�� (T. 314).� He testified that he did this by manipulating the
controls to stop paper from feeding into the cutting die area, but allowing the
cutting die to continue to reciprocate and bypassing the scrap chute guard to
manually clear the scrap paper from the scrap chute.� (T. 314-19).� He
testified that he learned to do this by observing the plant manager (Roger
Finckbone), the assistant plant manager (Marc Saylor), and his floor supervisor
do the same thing, although Griner did not speak to whether he had been
expressly trained to do this.� (T. 319-20, 334).� When asked whether he had
ever been told not to reach into an operating machine, he responded �Not
really,� with no further explication.� (T. 334).

Griner testified
further that when he adjusted the air nozzle he would usually do so while the
PCM was running because that way he was able to determine the manner in which
the air was flowing as he adjusted the nozzle, which was not possible when the
PCM was shut off, though he did not speak to whether he had been trained to do
this.� (T. 325-27).� Adjusting the air nozzle with the machine running took
only �a couple of seconds,� while shutting the machine down to complete the
same task would take about five minutes.� (T. 326-27).� Griner testified that
he had observed a floor supervisor (Egorov) and other adjusters adjust the air
nozzle when the PCMs were running.� (T. 327).

(C).� Adjuster �D.F.�

The testimony of
an employee with the initials D.F. corroborated Beals� account of the
circumstances in which some adjusters cleared scrap paper from scrap chutes and
adjusted air nozzles of operating PCMs. [37]

D.F. was employed
as an adjuster at the Facility from March 2015 to September 2016, when he chose
not to return to work after having taken a medical leave of absence.� (T.
640-42, 689, 1676-77; Ex. R-39).� D.F. testified that throughout his employment
he inserted his hand into the scrap chute area of operating PCMs to clear scrap
paper and to adjust the air nozzle, and that he did this as many as 20 to 30
times a day in a series of movements that were completed in �[j]ust seconds,
like one or two seconds.�� (T. 662-63, 667, 672).� He testified his trainer (an
experienced adjuster who had the same initials -- D.F.) �showed me that way,�
but also cautioned him that �you wasn�t supposed to� clear the paper that way
�but, you know, that�s the way you got to get this machine running,� and so
�[t]hat�s how we do it.�� (T. 693, 695).� D.F. testified he had observed other
adjusters clear scrap paper from the scrap chutes of operating PCMs every day
(T. 663, 670-71, 695-96), and that he had observed floor supervisors (Egorov
and Mays) do this as well.� (T. 671-72).� He testified that he would be �a bit
concerned� about the proximity of his hand to the reciprocating cutting die
when doing this, but that he did not believe he was putting himself at risk
when doing so, explaining that �I�ll be cautious,� and �I know � how to move.��
(T. 694).

iii. � Competing Testimony of Current
AJM Employees

AJM presented
testimony of current AJM employees who testified to substantial effect that (1)
AJM�s work rule was that all PCM guards had to remain in place when the machines
were operating, (2) they had not observed employees clear scrap paper by
bypassing the scrap chute guard of operating PCMs in violation of that rule,
and (3) it was not a common or an accepted practice for employees to do so.�

The plant manager,
Roger Finckbone, who accompanied the CO throughout the CO�s walkaround on
August 25, 2016 (T. 2510-11), testified that during the walkaround he did not
see Beals reach into a running PCM in the manner that the CO described.� (T.
2516-19).� However, Finckbone recalled that he had observed Beals holding open
the scrap chute guard to PCM #27 and peering into the scrap chute area while
the machine was operating.� (T. 2516-17).� Finckbone recalled further that when
Beals realized that Finckbone was observing him do this, Beals immediately
closed the scrap chute guard.� (T. 2516-19).� Finckbone testified that he
instructed someone to discipline Beals with a written warning for operating the
PCM with a guard open, but that he later learned that his instructions had not
been carried out.� (T. 2529-30).� Finckbone testified further that he had never
seen an employee access the scrap chute through the scrap chute guard of an
operating PCM machine at the Facility, though he recollected having seen that
happen �long ago,� probably at another AJM plant where he had worked before the
Facility opened in 2009.� (T. 2438-39, 2494-96).� He testified that employees
were permitted to access the scrap chute through the scrap chute guard by
utilizing either the LOTO Method or the E-Stop Method, and that it is generally
necessary to remove scrap paper from the scrap chute about �five or six times a
day depending on the diligence of the adjuster.�� (T. 2469, 2489).

The Facility�s
human resources manager, Robert Cutler, who along with Finckbone accompanied
the CO during his 30-minute walkaround on August 25, 2016, similarly testified
that he did not observe Beals reach into a PCM during the walkaround (or at any
other time for that matter).� Cutler testified that employees are �trained to
leave the guards in place and if the guards are in place� employees cannot
stick their hands in the scrap chute near the reciprocating cutting die.� (T.
450-51).

The assistant
plant manager since 2012, Marc Saylor, testified that he had never seen an
adjuster reach into an operating PCM, and that employees were permitted to
reach into PCMs only by utilizing either the E-Stop Method, LOTO procedures, or
by engaging the interlock feature by opening the rear access doors.� (T.
1870-73, 1881, 1885).

An employee who
was an assistant foreman from 2011 to 2017, Dmitry Egorov, testified to the
same effect as Mr. Saylor.� (T. 1946-1948, 1960, 1977).� He did not recall
having ever seen an adjuster reach into the scrap chute area of an operating
machine in the manner that Beals described.� (T. 1960-61).

Another employee
who had been a floor supervisor at the Facility since it opened in 2009, Lena
Mays, testified that there were no exceptions to the rule that the scrap chute
guard had to be closed at all times while a PCM was running.� (T. 2173,
2252-53).� She testified further that in her years as a floor supervisor she
had never see an employee reach into the scrap chute of a running machine.� (T.
2252-53).� She testified that employees were permitted to remove scrap paper by
accessing the scrap chute guard by employing either the LOTO Method or the
E-Stop Method.� (T. 2233-34, 2253-57).� She testified further that employees were
permitted to clear scrap paper from the rear of the PCMs by opening the
interlocked rear access doors (and not having to utilize LOTO procedures when
doing so).� (T. 2321).

Another employee
who had been a floor supervisor at the Facility since 2009, Bill Samosky,
testified that employees were permitted to access the scrap chute through the
scrap chute guard only by utilizing either the LOTO Method or the E-Stop
Method.� (T. 2349-52).� Employees were also permitted to open the interlocked
rear access doors without using LOTO procedures, because the interlocks for the
doors function like an e-stop.� (2352-53).� Samosky testified that he had never
seen an employee reach into an operational machine, and that if he had seen
such an act, he would have intervened and disciplined the employee.� (T.
2361).�

Another employee
who was a floor supervisor at the time he testified, Don Gaddy, testified that
employees are permitted to access the scrap chute through the scrap chute guard
to clear scrap paper by utilizing either the LOTO Method or the E-Stop Method,
and that he had never seen an employee attempt to clear scrap paper by
accessing the scrap chute through the scrap chute guard of a running PCM.� (T.
2572-76, 2587).�

Another employee
who was an assistant foreman at the time he testified, Brandon Mendieta (who
had been working as an adjuster on August 25, 2016 when the CO made his
walkaround), testified that adjusters are permitted to clear scrap paper from
the scrap chute only by utilizing either the LOTO Method or the E-Stop Method,
and that generally adjusters had to do this one or two times a day.� (T.
2046-52, 2056-58).�

iv. � CO�s Private Interviews of AJM
Employees

The CO�s account
of his private conversation with Beals on August 25, 2016 is described above.�
His accounts of his private conversations with Mendieta and Thompson that same
day are discussed in connection with the discussion ahead on instances �b� and
�c�.� In addition to the interviews of those three adjusters, the CO privately
interviewed Lena Mays three weeks later, on September 14, 2016.� (T. 1117).�
Mays has been employed at the Facility as a floor supervisor since the plant
opened in 2009.� (T. 2171, 2176).� The CO testified that he asked Mays about
adjusters reaching into operating machines to clear scrap paper, and that Mays
responded by saying that she had �observed employees stick their hand inside
the machine to try to remove scrap� as recently as the week before, and in that
particular instance she had orally reprimanded that employee for having done
so.� (T. 1130).� The CO testified further that Mays told him she thought
employees reached into operating machines because they get �used to the
machine� and �feel like they are faster than the machine.�� (T. 1130-31).� Mays
testified at the hearing and expressly denied having ever seen employees reach
into an operating machines (T. 2253, 2321), but she was never questioned to
confirm or deny having said to the CO privately what the CO described in his
testimony.�

The CO�s
description of precisely what the three adjusters and Ms. Mays told him in
private interviews is of uncertain reliability.� Of the employees who testified
at the hearing and who were also interviewed privately by the CO with respect
to instances �a�, �b� and �c� (Beals, Mendieta, Mays), only Mendieta was
questioned at the hearing about whether he had said to the CO what the CO
described in his testimony.� As described below, Mendieta�s testimony suggests
that the CO had misunderstood him.� Neither Beals nor Mays were provided the
opportunity either to confirm or deny the CO�s account of his private
interviews, or to provide any context for what they had said to the CO
privately.�

In those private
interviews, the CO questioned employees about complex activities on complex machinery.�
Such circumstances sometimes heighten the possibility of miscommunication.�
Another significant factor that bears on whether the CO understood what the
employees were attempting to say to him, is that AJM managers caused the CO to
reasonably, but erroneously, understand that AJM required adjusters to utilize
LOTO procedures to clear paper jams from the scrap chute.� But in truth,
adjusters were not limited to using LOTO procedures.� Rather, they were
permitted also to utilize the E-Stop Method.� While it may be that AJM
management did not intentionally mislead the CO, the CO�s reasonable belief
that AJM required adjusters to use LOTO procedures to remove scrap paper from
the scrap chute may have resulted in the CO misunderstanding or misinterpreting
what employees were attempting to communicate to him in the private
interviews.�

In addition, the
investigative file that the CO compiled contains a number of substantial errors
that AJM highlights in its closing briefs in its challenge to the reliability
of the CO�s testimony.� (Resp�t Br. 60-65).� While perfection in an
investigative file and in a CO�s recollection of past events is not required,
some of the errors highlighted raise legitimate concerns regarding the CO�s
attention to certain detail in the conduct of the investigation and the
accuracy of some of his recollections.�

v. � Violative Condition for Instance �a�
Not Proven

A preponderance of
the evidence establishes that Beals, and at least some other adjusters, had a
personal practice of clearing scrap paper from the scrap chute of an operating
PCM in the manner that is alleged in instance �a�.� (Findings of Fact
� 54).� But the evidence is insufficient to establish by a preponderance
that the CO actually observed Beals do this during his walkaround on August 25,
2016, or that Beals told the CO that he had done so during in the CO�s private
interview with Beals later that day.� Finckbone�s testimony that during the
walkaround he observed Beals violating the AJM policy of operating the PCM with
a guard open, but did not observe him reach in the machine, is somewhat
controverting of the CO�s testimony, and raises the inference that the CO
misperceived what he thought he had seen Beals doing.� It is notable also that
the CO made no comment to Finckbone or Cutler that he had observed Beals
reaching into the PCM in the manner that the CO testified.� (T. 1068, 1590,
2519).

While there is
substantial evidence that Beals engaged in the violative conduct during the
CO�s walkaround on August 25, 2016 as alleged in instance �a�, on the whole of
the record the evidence is closely balanced and not preponderant.� See
Stanley Roofing Co., Inc. , 21 BNA OSHC 1462, 1464 (No. 03-0997, 2006)
(concluding that Secretary did not meet her burden of proof on a matter where
the evidence was �essentially in equipoise�); Schaffer v. Weast , 546
U.S. 49, 56 (2005) (observing that the �burden of persuasion� answers �which
party loses if the evidence is closely balanced�).� The violative condition
alleged in connection with instance �a� is not proven.

b.� Proof of
Non-Compliance -- Instance �b�

(PCM #13 Operated by Brendan Mendieta)

Brandon Mendieta
testified that he did not reach into an operating machine on August 25, 2016,
directly controverting the CO�s testimony that he had observed Mendieta do so
twice.� But Mendieta admitted that on that day he had removed the forming die
guard (which is adjacent to the scrap chute guard) on a PCM that was not
running (because he had engaged an e-stop), and that he had left the PCM
unattended with the forming die guard off, in violation of a work rule.� (T.
2124-28; Ex. C-4A).� Mendieta testified that the plant manager (Finckbone)
observed this and called him over to correct him about leaving the guard off
the non-operating machine, and that he then replaced the guard.� (T. 2124-28).�
Finckbone corroborated Mendieta�s account, testifying that he had observed that
Mendieta had left a guard off PCM #13 in violation of a work rule, even though
the PCM was not operating at the time.� (T. 2512-15).�

The CO testified
that, after he saw Mendieta reach into the PCM the second time, he �made a
little reference� to Finckbone and Cutler� about �what [Mendieta] did,� and
that one of them then approached Mendieta and spoke with him privately.� (T.
833-34).� In contrast, Finckbone and Cutler both testified that the CO did not
make any mention to them during the walkaround that he had seen Mendieta reach
into the scrap chute of an operating PCM.� (T. 1578, 2513).� Both Finckbone and
Cutler testified that during the walkaround, they did not observe Mendieta
reach into the scrap chute area of PCM # 13 in the manner that the CO testified
he had seen.� (T. 1578, 2513).��

The CO testified
that when he interviewed Mendieta on August 25, 2016 after having seen him
reach into an operating PCM twice, that �Mendieta informed me that he knew it
wasn't something he was supposed to do as far as walking away from the machine
if the scrap door was open,� and �also � from what I recall, he � stated to me
that he knew he wasn't supposed to stick his hand in that -- in the scrap chute
area, but he had to remove the excess scrap paper.�� (T. 835).� Mendieta did
not expressly deny saying to the CO that he had reached into an operating
machine that day, but he seemed to suggest in his testimony that he had simply
told the CO that his infraction had been to leave a guard off a non-operating
PCM.� (T. 2127-28).�

It is impossible
to square the CO�s testimony that he saw Mendieta reach into the PCM while it
was operating, with the testimony of Finckbone and Mendieta that the PCM was
not even operating at the time.� The respective demeanors of these witnesses
while testifying provide no basis for crediting one over the other.� The
evidence respecting the conduct of Mendieta that forms the basis of proving
non-compliance for instance �b� is closely balanced and is in equipoise.� See
Stanley Roofing Co., Inc. , 21 BNA OSHC at 1464; Schaffer v. Weast ,
546 U.S. at 56.� The evidence is insufficient to meet the Secretary�s burden to
prove by a preponderance of the evidence the violative conduct alleged for
instance �b�.

c.� Proof of
Non-Compliance -- Instance �c�

(PCM #30 Operated by Andrew Thompson)

Andrew Thompson
was operating PCM #30 on August 25, 2016, when he was still an
�adjuster-trainee.�� (T. 2520; Ex. R-41 at 59-65).� Finckbone testified that
during the CO�s walkaround that day, he did not observe Thompson reaching into
the scrap chute area of an operating PCM.� (T. 2520).� The CO did not make any
remark to Finckbone that he had observed Thompson reaching into the machine in
the manner that the CO testified.� (T. 2520).�

Cutler testified
that during the walkaround with the CO on August 25, 2016, he observed Thompson
handling a roll of paper on the non-operator side of PCM #30, about 25 or 30
feet away from the scrap chute guard.� Cutler testified he noticed that
Thompson had left the forming die guard off the machine in violation of a work rule,
so he left the CO�s side and approached Thompson to correct Thompson on the
spot for leaving the guard off the machine.� Cutler testified that he did not
see Thompson reach into the open scrap chute guard of PCM #30.� Cutler
testified further that the CO did not make any mention to him that the CO had
seen Thompson reach into the scrap chute area of a running PCM to remove scrap
paper, as the CO testified he had seen Thompson do.� (T. 1583-89, 1727-28).

Thompson remained
employed by AJM throughout the nearly five months that it took to complete the
hearing (T. 2286), but neither party identified him as a person that the party
might call to testify in their respective cases in chief, and neither party
did.� ( See Joint Prehearing Statement, filed 10/3/2017).� There is
nothing in the record suggesting that Thompson was not available to testify.�
The record is silent regarding the parties� respective reasons for not
attempting to call as a witness an individual whom the Secretary had identified
as the employee who had engaged in the alleged violative conduct described in
instance �c�.�

The CO testified
about what he recalled Thompson telling him when the CO interviewed him
privately on August 25, 2016.� The CO testified that after his walkaround
(during which he testified that he had seen Thompson bypass the scrap chute
guard of an operating PCM to remove scrap paper), Thompson told him during a
private interview that he had reached into the scrap chute of an operating
machine to remove paper, and that �[h]e knew he wasn�t supposed to�, but he was
only trying to remove excess scrap paper from the machine.�� (T. 839-41).�
According to the CO, Thompson said that he had done so because �he had three
other machines he was handling, and it was overwhelming, so he was trying to be
as fast as possible.�� (T. 1127).� After having his recollection refreshed with
the notes that he took during his interview with Thompson, the CO testified
that Thompson told him that scrap chutes get jammed with scrap paper �several
times a day� and that Thompson said that he reaches into an operating PCM to
clear the paper from the scrap chutes about 40% of those times, which amounts
to �several times a day.�� (T. 842-43).�

CO�s testimony
about what he saw Thompson do and what Thompson said to him privately simply
cannot be squared or reconciled with the testimony of Finckbone and Cutler that
Thompson was not even in the vicinity of the scrap chute guard at the time.�
There is as much reason to doubt the reliability of the CO�s testimony as there
is reason to doubt the credibility of the AJM witnesses on this issue.� It is
possible that if Thompson had been presented to testify, that the balance of
the evidence would have tipped one way or the other.� But the evidence of
record as to the conduct alleged for instance �c� is closely balanced and is in
equipoise as well.� Stanley Roofing Co., Inc. , 21 BNA OSHC at 1464; Schaffer
v. Weast , 546 U.S. at 56.� The Secretary has not met his burden of proof to
establish the alleged violative conduct as to instance �c�.

d.� Proof of
Non-Compliance & Employee Access -- Instance �d�

(PCM #16 Operated by W.F.)

As discussed
above, the Secretary established that the cited LOTO standard applied to
instance �d� which pertains to W.F.�s attempt to clear a paper jam located in
the cutting die after he had raised the scrap chute to its upright position.�
For AJM to have complied with the cited standard would have involved AJM
developing and directing the utilization of LOTO procedures that would protect
employees from the release of gravitational energy in the raised scrap chute
during service or maintenance activities.� Cf. 54 Fed. Reg. at 36647
(explaining that one of �the most effective method[s] to prevent employee
injury caused by the unanticipated movement of a component of a machine� is to
�utilize a restraining device to prevent movement,� such as �by blocking
material or components�); � 1910.147(b) (defining the term �energy isolating
device� to include �a block; and any similar device used to block or isolate
energy�).� AJM had no such LOTO procedures, and W.F. did not neutralize the
gravitational energy in the raised scrap chute that amputated his finger, and
thus AJM was not in compliance with the cited standard as to instance �d�.�
W.F. was exposed to the hazardous energy of the raised scrap chute when he
reached inside the PCM from the PCM�s operator�s side through the open scrap
chute guard, and also while he reached inside the machine from the rear of the
machine through the opened rear access doors.� The amputation injury itself
establishes the �employee access� element of the Secretary�s burden of proof.� S&G
Packaging Co., 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (employee�s
injury resulting from the violative condition established employee access element). [38]

Only the �employer
knowledge� element remains for the Secretary to meet his burden of proof as to
instance �d�.�

7. � Employer Knowledge � Instance �d�

(PCM #16 Operated by W.F.)

To establish the employer
�knowledge� element of his burden of proof, �the Secretary must prove that the
employer knew or, with the exercise of reasonable diligence, should have known
of the conditions constituting the violation.�� Cent. Fla. Equip. Rentals,
Inc. , 25 BNA OSHC 2147, 2155 (No. 08-1656, 2016).� �The knowledge element
is directed to the physical conditions that constitute a violation, and the
Secretary need not show that an employer understood or acknowledged that the
physical conditions were actually hazardous.�� Danis Shook Joint Venture XXV ,
19 BNA OSHC 1497, 1501 (No. 98-1192, 2001) (citation omitted), aff'd ,
319 F.3d 805 (6th Cir. 2003); see also S. Hens, Inc. v. OSHRC ,
930 F.3d 667, 676 (5th Cir. 2019) (�The showing required to establish knowledge
is of the physical conditions constituting the violation, not of the specific
OSHA regulation or of the probable consequences of the violation�).

The physical
condition that violated the LOTO standard as to instance �d� was the hazardous
gravitational energy present in the raised scrap chute that caused injury to
W.F. as he was clearing jammed paper on PCM #16 on May 8, 2016.� For the
Secretary to establish the alleged violation, Secretary must establish that AJM
knew or, with the exercise of reasonable diligence, should have known of that
violative physical condition.� Cent. Fla. Equip. Rentals, Inc. , 25 BNA
OSHC at 2155; Danis Shook Joint Venture XXV , 19 BNA OSHC at 1501.

Only the Secretary has addressed the
employer knowledge element of instance �d� in post-hearing briefing, arguing
that the evidence established that AJM had both actual and constructive
knowledge of the violative condition.� (Sec�y Br. 36-44).� AJM, although making
no direct contrary argument, addresses the constructive knowledge issue
obliquely in its argument in support of its affirmative defense of
unforeseeable employee misconduct (UEM).� (Resp�t Br. 54-56; Resp�t Reply Br.
21-25).� Cf. Burford�s Tree, Inc. , 22 BNA OSHC 1948, 1951-52 (No.
07-1899, 2010) (noting that the Commission has considered the �same factors in
evaluating both an employer�s constructive knowledge and the merits of an
employer�s unpreventable conduct affirmative defense�), aff�d , 413 F.
App�x 222 (11th Cir. 2011) (unpublished); S. Hens, Inc. , 930 F.3d at 678
(noting that �the UEM inquiry often overlaps considerably with the main
violation inquiry�).

Notwithstanding the absence of a direct
countervailing argument from AJM on the issue of whether AJM had knowledge of
the violative physical condition alleged in instance �d�, that element of the
Secretary�s burden of proof remains a material issue that must be addressed and
adjudicated on its merits.� See Commission Rule 90(a), 29 C.F.R.
� 2200.90(a) (providing that a Commission judge�s decision must �include findings
of fact, conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law, or discretion presented on the record�); 5 U.S.C.
� 557(c)(3)(a); Fed. R. Civ. P. 52(a)(1).� It is apparent from the entirety of
AJM�s argument that it vigorously contests, albeit indirectly in the context of
its UEM argument, the Secretary�s assertion that AJM had constructive knowledge
of the violative physical condition. [39]

a. � Actual Knowledge of the
Violative Physical Condition Involved in Instance �d�

AJM believed, albeit erroneously, that the
LOTO standard was inapplicable to the gravitational energy present in a raised
scrap chute, and consequently it had not developed LOTO procedures to protect
employees from being injured by that hazardous energy.� If AJM were to have had
actual knowledge that W.F. had raised the scrap chute while clearing a paper
jam, AJM would necessarily have had actual knowledge that he was not utilizing
any prescribed LOTO procedure to neutralize the hazardous gravitational energy
present in the raised scrap chute.� But there is no evidence that AJM had
actual knowledge that W.F. had raised the scrap chute while attempting to clear
the paper jam, and thus AJM had no actual knowledge that the violative physical
condition had materialized.� (E.g., T. 524-25).�

The Secretary argues that AJM�s � modus
operandi set forth in the trial record supports a finding that AJM had
actual knowledge of workplace conditions,� but none of the Secretary�s
arguments that purport to show actual knowledge of the violative condition
involved in instance �d� support such a finding.� (Sec�y Br. 37-40, 44).�
Rather, those arguments bear instead on whether AJM should be charged with
having constructive knowledge of the violative physical condition.� See
Sec�y Br. 40, n. 9 (wherein the Secretary states that his arguments in support
of �actual knowledge of the violative conditions also support a finding of
constructive knowledge�).� The Secretary�s arguments made under the rubric of
having proved actual knowledge will be addressed next in resolution of the
issue of constructive knowledge.

b. � Constructive Knowledge of the
Violative Physical Condition Involved in Instance �d�

Where an employer
lacks actual knowledge of a violative condition, the Secretary may prove that
the employer had constructive knowledge by showing that the employer failed to
exercise reasonable diligence to prevent or discover the violative condition.� See
Ragnar Benson, Inc. , 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999).� �In
assessing reasonable diligence, the Commission considers several factors,
including an employer�s obligations to implement adequate work rules and
training programs, adequately supervise employees, anticipate hazards, and take
measures to prevent violations from occurring.�� S.J. Louis Constr. , 25
BNA OSHC 1892, 1894 (No. 12-1045, 2016).� The regular enforcement of
disciplinary procedures also bears on whether an employer has exercised reasonable
diligence.� See Thomas Indus. Coatings , 23 BNA OSHC 2082, 2088-89 (No.
06-1552, 2012).�

Determining
whether an employer had constructive knowledge of a violative condition
involves �a fact-specific, practical inquiry, looking to company practice, the
details of specific incidents, knowledge of supervisors imputable to the
company, and commonsense inferences about what a company and its supervisors
should know and do.� �S. Hens, Inc. , 930 F.3d at 676.� Whether an
employer has exercised reasonable diligence is a question of fact that will
�vary with the facts of each case.�� Martin v. OSHRC (Milliken & Co.) ,
947 F.2d 1483, 1485 (11th Cir. 1991).

The dispositive inquiry here is whether
the Secretary proved that AJM failed to exercise reasonable diligence to
prevent or discover the violative physical condition on May 8, 2016 of W.F.
lifting the scrap chute while clearing a paper jam located in the cutting die.�
This is an extremely close question on this record, and there is substantial
evidence that would support a finding either way.� On balance, the evidence
that AJM failed to exercise reasonable diligence in preventing or discovering
the violative physical condition was not preponderant, as described below.

i. � Adequacy of Work Rules and Training Programs

AJM implemented a categorical work rule in
February 2015 prohibiting adjusters from raising the scrap chute to clear paper
jams. [40] �
The adjusters who were employed when the rule was implemented, twenty-seven
altogether, were trained on this work rule in one-on-one meetings with a
trainer, and each of the twenty-seven adjusters signed a training document
reflecting having received the training.� (T. 1888-91, 2603-06; Ex. R-14 at
3-5).� (The training document that the adjusters signed is set forth verbatim
in the Findings of Fact � 57.)�

No adjuster who was trained on the rule
expressed or demonstrated confusion about the rule�s import.� (T. 2606,
2362-64).� W.F., the employee who sustained the amputation injury when he
violated the rule about fifteen months after it had been implemented,
acknowledged in his testimony that he had been trained on the rule and that he
understood it.� (T. 2776-79).

AJM�s work rule and the training on it
were clear and direct, and if all adjusters followed the rule the violative
physical condition (raising the scrap chute without neutralizing its resulting
gravitational energy) would never materialize when adjusters cleared paper
jams.�

After the rule was implemented in February
2015, there is no evidence that AJM took any measures to ensure that newly
hired employees were indoctrinated on the rule, either formally or informally.�
(Ex. R-13 at 5; Ex. R-17; see D. Benjamin and A. Thompson training
records from 2016 at R-29, R-33, R-34, R-41).�

No training documentation in evidence that
post-dates the rule�s implementation contains any reference or allusion to the
rule, including the training documentation for subsequently hired
adjuster-trainees.� ( See Exs. R-29, R-30, R-32, R-33, R-34; T. 1429-31,
1598-1612).� According to the Facility�s human resources manager, Robert
Cutler, the �on-the-floor� training component for adjuster-trainees takes three
to six months to complete, and includes training on clearing paper jams,
although Cutler was not familiar with the precise content of the �on-the-floor�
training in clearing paper jams.� (T. 1740-42, 1744-46, 1925-26).

A floor supervisor, Dmitry Egorov,
recalled the February 2015 training on the rule prohibiting the lifting of
scrap chutes (T. 1963-65), and he mused that he �probably� had been trained �a
couple of times� on the rule, although he could not �remember the last time.��
(T. 1985-86).� Egorov personally had never delivered formal training on the
rule.� (T. 1986).� Egorov was not questioned about whether he had ever informally
communicated the rule to adjusters or adjuster-trainees during his day-to-day
to supervisory activities.

Another floor supervisor, Lena Mays,
testified that she was not involved in the training provided to adjusters on
the rule in February 2015, but she was aware of it from discussions with her
manager.� (T. 2313-14, 2329-30).� She testified further that she was not
involved in providing �on-the-floor� training to adjuster-trainees.� (T.
2310-11; Ex. R-30).

Another floor supervisor employed at the Facility
since 2009, Bill Samosky, recalled the 2015 implementation of the rule
prohibiting adjusters from lifting the scrap chute to clear paper jams, and
recalled no adjusters being confused or questioning the rule.� (T. 2362-64).�
He was not questioned about whether he was aware of any reinforcement training
on the rule or whether he had any knowledge about adjuster-trainees being
trained on the rule.

Another floor supervisor, Don Gaddy, who
had been one of the trainers who had delivered training on the rule to the
adjusters in February 2015, testified that he was not aware of any subsequent
reinforcement training having been provided on the rule.� (T. 2699-2700).� Like
Lena Mays, Gaddy was likewise not involved in providing on-the-floor training
to adjuster-trainees.� (T. 2701-02).� Gaddy was not asked whether he had
knowledge of any subsequently hired adjuster-trainees being informed of or
being trained on the rule in their on-the-floor training.

Jorge Gonzales has been an adjuster since
2014.� He has been involved in providing on-the-floor training to about 25
adjuster-trainees.� (T. 2402, 2419).� Gonzales was not questioned about whether
he ever informed or instructed an adjuster-trainee about the rule prohibiting
adjusters from raising the scrap chute to clear paper jams, although he did
testify about having trained adjuster-trainees in LOTO procedures and in
utilizing the E-Stop Method to clear paper jams.� (T. 2419-20, 2428).� He
recalled the February 2015 training that implemented the rule, but he could not
recall whether there had been any reinforcement training on the rule.� (T.
2424).

D.F. is the nephew
of W.F., and he started working as an adjuster in March 2015, about a month
after AJM implemented and trained on the rule.� (T. 640; Ex. R-39).� D.F.
testified that he typically raised the scrap chute once a day in the course of
cleaning the PCM�s rails, and that he learned to do this �[f]rom experience and
� my trainer � showed me little tricks or whatever to do.�� (T. 656-58; see
video clip at Ex. C-25, depicting blanks sliding down rails).� D.F. described
his trainer showing him how to clear scrap paper from the scrap chute of an
operating PCM by reaching in through the opened scrap chute guard but telling
him at the same time the practice violated AJM policy.� D.F. testified:� �He
didn�t teach me that way but he showed me the way, you know, he told me you
wasn�t supposed to but, you know, that�s the way you got to get this machine
running.� That�s how we do it.�� (T. 695).� D.F. did not directly say the
adjuster who was training him showed him how to lift the scrap chute to clean
the rails, though his testimony certainly is susceptible of that inference.�
(T. 658).� D.F. was not asked whether his trainer or anyone informed him of the
rule prohibiting the lifting of the scrap chute to clear paper jams, or whether
he had any awareness of that work rule.� D.F. was not asked whether he had ever
raised the scrap chute to clear a paper jam.�

The work rule
prohibiting adjusters from raising the scrap chute to clear paper jams was
adequate.� It was clear and direct, even though by its terms it did not
prohibit adjusters from raising the scrap chute for work activities other than
clearing paper jams, such as cleaning the rails as D.F. described he did on a daily
basis.� The original training on the rule in February 2015 was also adequate,
with no adjusters expressing confusion about the rule or voicing concerns that
the compliance with the rule would hinder them in doing their jobs.� (T. 2499,
2609).

The record
reflects no formal training on the rule after its implementation and the
initial training on it.� There is no evidence that AJM formally incorporated
the rule into its new adjuster training.� The on-the-floor training that
adjuster-trainees received as they shadowed experienced adjusters over a period
of three to six months entailed training on 93 tasks specified on a checklist,
but none of those 93 tasks referenced the rule prohibiting the lifting of the
scrap chute to clear a paper jam.� (Ex. R-41 at 59-65).� Whether the
experienced adjusters who were assigned to provide on-the-floor training to
adjuster-trainees informed an adjuster-trainee of the rule would seem to have
been wholly dependent upon whether the adjuster/trainer happened to think about
it and to decide to communicate it to the adjuster-trainee.� The evidence
established that the on-the-floor training for adjuster-trainees sometimes
included experienced adjusters showing adjuster-trainees means and methods that
violated AJM work rules.� (E.g., T. 695).� This aspect of on-the floor training
that was provided to at least some adjuster-trainees unavoidably communicated
to those new employees that the breach of some safety rules was commonplace at
the Facility, even if such violations were not expressly endorsed by
supervisory personnel.�

ii.�
Adequacy of Supervision

There is a clear divide in the testimony
respecting the prevalence of the practice of lifting the scrap chute to clear
paper jams.� The former AJM adjusters presented by the Secretary indicated that
even after AJM implemented the rule prohibiting adjusters from raising the
scrap chute to clear paper jams, adjusters continued to do it and that
supervisory personnel knew this and were even complicit in it.� The testimony
of current AJM employees and supervisors indicated the opposite.�

James Beals started working at AJM about
two months after AJM had implemented the rule that adjusters not lift the scrap
chute when clearing a paper jam (T. 169; Ex. R-32), but he was not asked
whether he had been informed of or knew about the rule prohibiting raising the
scrap chute to clear paper jams.� He testified that while he had raised the
scrap chute to clear a paper jam, he had done so only �rarely.�� (T. 214).�
However, Beals testified that two or three times a week he would raise the
scrap chute from its underside (apparently after having opened the interlocked
rear access doors) in order to reach screws in the PCM�s rails that needed to
be tightened from time to time.� (T. 213-14, 221-22).� He testified that
sometimes he would use a hand tool to block the scrap chute to prevent it from
falling, and other times he would have someone else hold the scrap chute up to
prevent it from falling.� (T. 211-12, 222).

David Griner worked as an adjuster from
June 2014 to January 2017.� In February 2015 he was trained in and understood
AJM�s work rule prohibiting adjusters from lifting the scrap chute to clear
paper jams.� (T. 302-04, 350-52; Ex. R-14 at 3; Ex. R-27 at 1; Ex. R-31).�
Griner testified that after this training, supervisors became strict on
enforcing the rule for about two months, but then he began to see other
adjusters, as well as floor supervisors (Egorov and Gaddy), reverting to the
practice of lifting the scrap chute to clear paper jams.� (T. 360-61).� He
testified that after seeing others revert to lifting the scrap chute, he
started doing it too, and that sometimes the scrap chute would fall from its
raised position.� (T. 361-62).� He was not asked how frequently he engaged in
the practice or how frequently he observed others engage in the practice.�

Dallas Benjamin was employed as an
adjuster-trainee for about three weeks in August and September 2016.� He
testified that (1) during his short tenure he raised the scrap chute �maybe 10
to 15 times a day� to clear paper jams by accessing the scrap chute through the
scrap chute guard on the operator�s side of the PCM, (2) he had been taught to
do this during his training, (3) he had witnessed other adjusters do the same
thing every day, and (4) he had never been instructed to refrain from lifting
the scrap chute.� (T. 100-01, 153-55).

As previously
noted, D.F., who worked as an adjuster from March 2015 to September 2016,
testified that he typically raised the scrap chute once a day to clean the
PCM�s rails, but he was not asked whether he ever had occasion to raise the
scrap chute to clear a paper jam.� (T. 656-58).

W.F. was employed as an adjuster at the
Facility from August 2013 through April 2017, when he voluntarily resigned and
took other employment.� (T. 2730-32; Exs. R-36 at 1; Ex. R-38 at 1-2).� W.F.
testified that in 2012 when he was an adjuster-trainee, he was taught to raise
the scrap chute to clear paper jams, that this practice was �normal� at that
time, and that he had raised the scrap chute to clear jams up until the time he
sustained the amputation injury on May 8, 2016.� (T. 2746-48).� He testified
further that he continued to raise the scrap chute to clear paper jams even after
he suffered the amputation injury.� (T. 2748).� He testified that he typically
lifted the scrap chute about once daily for each PCM he was operating.� (T.
2748, 2733).� He testified that after being trained in February 2015 on the
rule not to raise the scrap chute to clear paper jams, that he continued to do
so, explaining the rule �wasn�t really being enforced like that.�� (T. 2817).�
He testified further that around the time of his injury in May 2016 he observed
other adjusters lifting the scrap chute on a daily basis, and he had even
observed his floor supervisors (Efrain Machuca [41] and Salvador Cruz) engage
in the practice.� (T. 2748-50, 2817-23, 2777).� W.F. testified that he was able
to clear paper jams faster by raising the scrap chute.� (T. 2761).

In contrast, current AJM supervisors
testified uniformly that in their surveying of the production floor that they
had never seen adjusters raise the scrap chute to clear a paper jam after the
rule prohibiting that practice was implemented.

The plant manager, Roger Finckbone,
testified that he has never seen the scrap chute in the raised position on the
production floor and he could conceive of no circumstances in which it would be
necessary for an adjuster to raise the scrap chute in order to do their job.�
(T. 2498-2502).� So far as he was aware, no adjusters had indicated that
following the rule would hinder them in performing their job.� (T. 2499).�

Robert Cutler, the human resources manager
at the Facility whose responsibilities included coordinating safety training,
investigating accidents, and imposing employee discipline (T. 1425, 1428-30;
Ex. R-1), testified he had never seen employees raise or lift the scrap chute,
and that if he had, or if that activity had been reported and confirmed, the
offending employee would have been disciplined.� (T. 1668-73).

Marc Saylor, the assistant plant manager
since 2012, testified that he spent four to six hours each day walking the
production floor and that prior to implementation of the rule prohibiting
lifting the scrap chute, he had not been aware that the scrap chute it was
capable of being lifted.� (T. 1861, 1887-88).� He could not conceive of any
reason for an adjuster to raise the scrap chute to do their job.� (T. 1888).

Brandon Mendieta, who was W.F.�s immediate
floor supervisor when he suffered the amputation injury in May 2016, testified
that he had never seen W.F. or other adjusters raise the scrap chute.� (T.
2109, 2122).� (At the time of the CO�s walkaround on August 25, 2016, Mendieta
was no longer working as a floor supervisor (T. 2122).)� Mendieta testified
further that it was not necessary for adjusters to raise the scrap chute to do
their job (T. 2095), and that before the rule was implemented in February 2015
he was unaware that the scrap chute was capable of being raised.� (T. 2098).

Another floor supervisor, Lena Mays, who
has worked at the Facility since it opened in 2009, testified that she had not
known the scrap chute could be raised until the rule prohibiting adjusters from
raising it to clear paper jams was implemented, and that after the rule was
implemented she had not witnessed any adjuster raise the scrap chute.� (T.
2279-81).� She testified she knew of no reason an adjuster would need to raise
the scrap chute to do their job, and that no adjuster had indicated to her that
it was necessary to raise the scrap chute to perform their job.� (T. 2280-81).�

Another floor supervisor employed at the
Facility since 2009, Bill Samosky, testified that he is on the floor 95% of the
time checking employees� work practices.� (T. 2334-39).� He had been aware that
the scrap chute could be raised before the rule prohibiting adjusters from
doing so to clear paper jams was implemented.� He testified that he believed
adjusters would not need to raise it to do their jobs, and that he did not
believe raising it made it easier to clear paper jams.� (T. 2361-62, 2383-84).�

A floor supervisor and a former adjuster,
Dmitry Egorov, testified that he could not conceive of a reason for an adjuster
to raise the scrap chute to do their jobs.� (T. 1963).�

One of the two non-supervisory employees
called by AJM, Jorge Gonzales, has worked as an adjuster since 2014 and
testified that he has never raised the scrap chute.� (T. 2422).� He testified
further that he did not believe it was necessary for adjusters to do so to
operate and adjust the PCMs.� (T. 2422).

Before W.F. was disciplined in May 2016
for having raised the scrap chute while clearing a paper jam, no other employee
had been disciplined for violating this rule.� According to AJM managers and
supervisors, no such violations had been identified and reported in the
approximate fifteen months since the rule had been implemented.� (T. 1621,
2610).�

The testimony of
the former AJM employees about the continued lifting of the scrap chute after
the implementation of the rule prohibiting adjusters from raising it to clear
paper jams was somewhat scattered with respect to the frequency and reasons
adjusters had for lifting it.� James Beals testified he had lifted the scrap
chute to clear paper jams but had done so only rarely.� D.F. testified he
raised the scrap chute about one time a day, but only to clean the rails.�
David Griner testified that he continued to lift the scrap chute after seeing
other adjusters and even floor supervisors do so, but he did not testify to how
frequently he did so.� W.F. testified that on average he raised the scrap chute
to clear a jam about one time a day on each of the PCM�s he was responsible
for, and that he continued this practice even after he was seriously
injured and then disciplined after having violated the rule.� Dallas Benjamin,
who worked for only three weeks and did not complete new adjuster training,
testified that he lifted the scrap chute 10 to 15 times a day to clear paper
jams.� AJM argues that the testimony of the former employees should be
discredited for a variety of reasons, including that each had reasons to be
disaffected and harbor biases against AJM.�

The testimony of current AJM supervisors
and employees was generally consistent that none had observed instances of
adjusters violating the rule and none could conceive of a reason that an
adjuster would need to do so to do their jobs.�

The Secretary argues that because AJM
modified the mounting mechanism for the scrap chute in a manner that allowed
employees to raise the scrap chute with relative speed and ease, it should be
inferred that �AJM wanted employees to raise the scrap chute.�� (Sec�y Br.
39).� It is certainly reasonable to infer that this was AJM�s objective when it
modified the PCMs in this manner, which was sometime before AJM opened the
Facility in 2009.� (T. 1335).� But it is far from clear on this record whether
this modification was made to facilitate the work of adjusters rather than some
other cohort of employees such as the maintenance mechanics, who are required
to remove the scrap chute from time to time.� (E.g., T. 1230, 1346-47, 2423-24,
2477-78, 2498).� AJM�s subsequent implementation in February 2015 of the work
rule that was directed only at adjusters and that prohibited adjusters from
raising the scrap chute to clear paper jams dispels the inference that the
modification was made to entice adjusters to raise the scrap chute.� Other
evidence that some employees were unaware that the scrap chute could be raised
prior to the rule being implemented in February 2015 (T. 2098, 2279), or had
discovered only through inadvertence that the scrap chute could pivot upward
(T. 2609, 2687), further suggests that AJM�s modification to the way the scrap
chutes were mounted in the PCMs was not made with a view to encouraging or
allowing adjusters to raise the scrap chute.� (T. 1346-47, 1375-76).

With the possible
exception of Dallas Benjamin�s testimony that he lifted the scrap chute 10 to
15 times a day over the course of his three weeks of employment as an
adjuster-trainee, the testimony of former and current employees regarding their
practices after the rule was implemented was facially credible.� It is entirely
believable that W.F., Griner, D.F., and Beals lifted the scrap chute in the
manner and frequency with which they testified.� Testimony that they had
observed floor supervisors do the same is no more credible than the testimony
of two of the supervisors they identified who essentially controverted having
violated the rule themselves.

The whole of the
evidence is insufficient, though barely, to prove by a preponderance that
supervisory or managerial personnel had actual knowledge of the rule having
been violated through the time of W.F.�s amputation injury on May 8, 2016.� The
evidence is insufficient to establish by a preponderance that AJM did not
adequately supervise adjusters to prevent violations of the rule prohibiting
the raising of the scrap chute to clear paper jams.

iii.� Anticipating Hazards, and

Measures to Prevent Occurrence of
Violations

The managers and
supervisors at the Facility uniformly believed that adjusters had no need to
raise the scrap chute to perform their duties.� (E.g., T. 2609, 2498-2500 ).�
It was only after an employee was injured in February 2015 after raising the
scrap chute while attempting to clear a paper jam that AJM implemented a rule
prohibiting that conduct.� Even though the rule was not intended to protect
adjusters from the gravitational energy present in the raised scrap chute (see
footnote 18 supra ), compliance with the rule would have the unintended
ancillary effect of preventing the hazardous physical condition involved in
instance �d� from materializing.� AJM�s rule prohibiting the raising of the
scrap chute to clear paper jams was an adequate measure to anticipate and
prevent hazards from materializing in view of the AJM�s conclusion that there
existed no enticement for adjusters to raise the scrap chute to clear paper jams
to make their work go faster and to increase their personal productivity.�
Although W.F. testified that it was his regular practice to raise the scrap
chute to clear paper jams and that he believed doing so reduced the time it
took to clear paper jams, the whole of the evidence was insufficient to
establish that this practice was widespread among other adjusters, or that it
provided a more expeditious means for adjusters to clear paper jams.�

iv. � Regular Enforcement of
Disciplinary Procedures

About 250 employees staffed the Facility
covering three shifts a day that included a bustling production floor with more
than 30 PCMs.� Of the 88 documented disciplinary enforcements in the record for
violation of the AJM�s Rule 6 (the safe work practices rule) from 2013 to
September 30, 2016 (the date the citation was issued), 83 for were for a first
violation (requiring a written warning), five were for a second violation
(requiring a three-day suspension), and none were for a third violation
(requiring termination).�

Forty-seven of the 88 violations were for
unspecified violations of Rule 6.� Sixteen were for unspecified �safety
apparel� violations, and eight were for failing to wear earplugs and/or safety
glasses.� (Exs. R-6, R-23, R. 26 at 2 �3
and 9�10; see footnote 5 supra regarding duplications in disciplinary
actions reflected in Exs. R-6 and R-23).�

In the more than three years of
disciplinary actions for safety violations in the record that preceded the
issuance of the citation, seven of the 88 disciplinary actions were for
employees operating machines with guards off.� That number of disciplinary
actions for violation of this fundamental rule of the workplace is particularly
notable, in that while accompanying the CO on his 30-minute walkaround on
August 25, 2016, Finckbone and Cutler between them observed the three adjusters
involved in instances �a�, �b�, and �c� (Beals, Mendieta, and Thompson)
violating that same rule.� No formal discipline was imposed on any of those
three employees for those infractions.�

While it seems probable that at least some
of the 47 unspecified Rule 6 disciplinary actions during this period had been
for operating machines with guards off, the whole of the record strongly
suggests that formal discipline as a consequence of breaching that rule was far
from regular.� Rather, it seems likely that supervisors frequently utilized
their discretion simply to deliver oral warnings and coaching.� This is what
Cutler, the human resources manager, testified that he did regarding Thompson�s
violation of the rule that he observed on August 25, 2016 during the CO�s
30-minute walkaround.� And this is apparently what Finckbone, the plant
manager, did with respect to Mendieta�s violation that same day.� ( See, e.g .
T. 527-28, 840, 1727-29, 2124-28, 2453-54).

While AJM�s enforcement of its
disciplinary protocol for safety infractions appears to have been far from
uniform, the whole of the evidence does not indicate that the discretion that
floor supervisors possessed to forego formal discipline rendered AJM�s
disciplinary program ineffective or inadequate.� It is notable that several of
the former employees that the Secretary called to testify had been disciplined
for violations of various work rules including safety rules.� W.F. was
disciplined in November 2013 for operating machines with guards off.� (Ex. R-23
at 54).� James Beals was disciplined three times doing the same thing�in August
and October 2015 and again in January 2016 (although, contrary to the
disciplinary protocol set forth in Rule 6, he was not terminated for what in
actuality had been his third violation of Rule 6 over a six-month period).�
(Ex. R-26 at 2-3, 9-10, 12-13).

v.� Lack of Reasonable Diligence to
Prevent or Discover

Violative Condition for Instance �d� Not
Proven

Upon consideration of the factors relevant
to determining whether the Secretary met his burden to prove that AJM failed to
exercise reasonable diligence to prevent and discover the violative condition,
the evidence is closely balanced and is in equipoise.� The Secretary has failed
to meet his burden to prove this element of the alleged violation by a
preponderance of the evidence.� See Stanley Roofing Co., Inc. , 21 BNA
OSHC at 1464; Schaffer v. Weast , 546 U.S. at 56.

8. LOTO Citation Vacated

There is substantial evidence in the
record that would support opposite findings on the credibility and reliability
of certain testimony.� In the final analysis, the undersigned did not find one
result more convincing than other differing results, all of which were grounded
in crediting some testimony over other countervailing testimony.� The
undersigned is not reluctant to find that a witness has not been truthful or
fully forthcoming when such a finding is warranted and reasons for that finding
can be articulated.� E.g., Outfront Media, Inc. , No. 17-2202, 2020 WL
3119466, at 13 & 19 (O.S.H.R.C.A.L.J., May 4, 2020).� But on this record,
there are insufficient reasons to discredit certain testimony or to accord
greater credit to countervailing testimony on certain dispositive matters.�
This is the epitome of the evidence being in equipoise.� The Secretary having
failed to establish any of the four instances alleged to have violated the LOTO
standard, citation 2, item 1 must be vacated.�

B.� Hand
Protection Citation� Section 1910.138(a)

Serious citation 1, as
first amended by the Secretary�s complaint and amended a second time during the
hearing, alleges that AJM violated � 1910.138(a) on or about August 17, 2016,
averring that AJM �did not provide or ensure use of hand protection to
employees who were exposed to harmful temperatures from the paper products
exiting the Peerless Cutting Machines.�� The cited standard, � 1910.138(a), is
titled �Hand protection� and is contained in the �Personal Protective Equipment�
(PPE) subpart of Part 1910.�

Section 1910.138(a)
provides as follows: � General requirements . Employers shall select and
require employees to use appropriate hand protection when employees' hands are
exposed to hazards such as those from skin absorption of harmful substances;
severe cuts or lacerations; severe abrasions; punctures; chemical burns;
thermal burns; and harmful temperature extremes.��

The Secretary�s theory of
the violation was that employees were exposed to a thermal hazard from having
to handle stacks of paper plates and bowls that were heated from having
recently been processed through the PCM�s heated forming dies.� (Sec�y Br.
46-53).

��To establish the
applicability of a PPE standard that, by its terms, applies only where a hazard
is present,� the Secretary must demonstrate that �there is a significant risk
of harm and that the employer had actual knowledge of a need for protective
equipment, or that a reasonable person familiar with the circumstances
surrounding the hazardous condition, including any facts unique to the
particular industry, would recognize a hazard requiring the use of PPE.�� Wal-Mart
Distrib. Ctr. No. 6016 , 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015), aff�d
in relevant part and vacated in part on other grounds , 819 F.3d 200 (5th
Cir. 2016).� �The Secretary must show more than the mere possibility of or a
potential for injury.�� Andrew Catapano Enters., Inc. , 17 BNA OSHC 1776,
1783 (No. 90-0050, 1996) (consolidated).� Rather, in order to establish that an
identified alleged hazard presents a �significant risk of harm,� the Secretary
must prove that the circumstances in the workplace are �likely to give rise to
the alleged hazard� for which the PPE is needed.� See Pratt & Whitney
Aircraft v. Donovan , 715 F.2d 57, 63-67 (2d Cir. 1983).

The Secretary
failed to prove that handling the paper products presented a significant risk
of injury to employees from harmful temperatures.� There was no evidence of the
actual temperature of the stacks of paper plates and bowls that employees
handled.� There was no evidence of any employee having ever sustained a thermal
injury from handling the stacks of paper plates, notwithstanding that a
substantial number of packers, about 90% on the first shift (T. 2370) and about
70% on the third shift (T. 1937), opted not to wear gloves.� There was no
evidence regarding how much time it takes for a stack of plates or bowls to
cool to within 30 �F. (or any other temperature) of the ambient temperature.�
There was no scientific or technical evidence respecting the temperatures at
which the heated paper products, which by nature are non-conductive, are likely
to present a significant risk of thermal injury to persons who were required to
repeatedly handle the products.� There was no scientific or technical evidence
of the properties of the paper stock used at the Facility in retaining and
dissipating heat following the paper�s contact with the heated forming dies.�
There is no evidence of any measured time interval between the moment a stack of
paper plates or bowls is discharged from the stacker and when the stack reaches
the runout table, where the packers would handle them.� (T. 2298).

The absence of the
type of evidence described above would not necessarily be fatal to the
Secretary�s case, if there had been reliable testimonial evidence that handling
the paper products presented a significant risk of injury from harmful
temperatures.� But testimony on the risk of such injury was not sufficiently
probative to carry the Secretary�s burden of proof.

The only witness
that the Secretary presented who had worked as a packer at the Facility was Mr.
Merris Hopson, who was a former employee who had worked as a packer for two
months in 2016.� (T. 563).� Hopson�s testimony, even when accepted at face value,
is insufficient evidence to meet the Secretary�s burden of proof.� He testified
he had not experienced any pain or discomfort due to heat from handling the
plates, that the heat of the products caused �[j]ust a little tingling, I
guess, smoothness in my fingers,� and that there were never instances when the
paper products were too hot to handle.� (T. 559, 562).� Hopson indicated that
he and other packers allowed the stacks of products that are conveyed to the
runout table �to cool off a little bit� before handling them.� (T. 560).�
Hopson suggested further that in the atypical circumstances when a PCM
malfunctions in a way that results in the forming die scorching the paper,
packers would not immediately handle the scorched product.� (T. 560-61).

Several other
former AJM employees who had not worked as packers provided conclusory
unsupported testimony that there was a significant risk of harm from handling
the plates.� (T. 238).� For example, James Beals made the intuitively
impossible supposition that the temperature of the plates exiting the forming
dies was as much as 600 �F.� (T. 238, 250).�

James Griner was
another former adjuster at AJM who provided conclusory testimony that
�sometimes them plates come out pretty hot, and they burned my hands,� but then
he indicated that the product �didn�t technically burn� (T. 357) and that he
was never actually burned but rather that the product is �hot enough to where
you can only hold them for a couple of seconds � and that�s it.�� (T. 340).� He
testified that �not too often� but �every now and then� there would be
malfunction and the forming dies would get too hot and the damaged product
would be too hot to pick up.� (T. 338-39).� He did not testify having ever
witnessed an employee handle product in that condition.�

The CO testified
that he conducted private interviews with two packers (Y. Valdez and T.
Woolery).� One of those packers told the CO that she bought and wore her own
gloves because the product was �too hot for her hands� (T. 806, 812), and the
other packer told the CO that the �paper plates are very hot when they� exit
the PCM so he bought and used his own gloves.� (T. 812).� The statements of
these two packers to the CO, not subjected to exploration on cross-examination,
are insufficiently probative to establish that handling the product objectively
posed a significant risk of thermal injury to employees.�

The Secretary�s
evidence presented in support of the alleged PPE violation was substantially
outweighed by countervailing testimony presented by AJM supporting its argument
that the conditions at the Facility do not pose a significant risk of injury
from contact with plates that retain residual heat after having exited the
PCMs.� ( See evidence cited at Resp�t Br. 35).

Accordingly, the
amended PPE violation that was originally alleged as serious citation 1, item
1, is vacated for the Secretary�s failure to carry his burden of proof.

IV.
ORDER

The foregoing
decision constitutes findings of fact and conclusions of law in accordance with
Commission Rule 90(a)(1).� 29 C.F.R. � 2200.90(a)(1).� If any finding is in
actuality a conclusion of law or any legal conclusion stated is in actuality a
finding of fact, it shall be deemed so, any label to the contrary
notwithstanding.� Based upon the foregoing findings of fact and conclusions of
law, it is ORDERED that:

1. Citation
   1, item 1, as amended, alleging a serious violation of 29 C.F.R.
   � 1910.138(a), having not been proven, is VACATED.

2. Citation
   2, item 1, as amended, alleging four instances (�a�, �b�, �c� and �d�) of a
   repeated violation of 29 C.F.R. � 1910.147(c)(4)(i), having not been
   proven, is VACATED.

__/s/_______

WILLIAM S. COLEMAN

Administrative Law
Judge

Dated:� September
8, 2020

[1]
The citation, which initially alleged a violation of 29 C.F.R.
� 1910.147(d)(4)(i), was amended by the Secretary in his complaint.� OSHA
also issued AJM a one-item serious citation that is not at issue on review.

[2]
The facility has three eight-hour shifts per day.

[3]
The PCM can be shut down in three ways�by turning off the machine using the
disconnect switch on the control panel and locking it out, by activating one of
three emergency stop, or �e-stop,� buttons, or by opening the rear access
doors, which are interlocked.� AJM has established written LOTO procedures,
both general and machine-specific, for each of its machines.� The company
trains adjusters as �authorized employees� and issues them personal locks that
they must always keep on their belt loops. � See 29 C.F.R.
� 1910.147(b) (defining �authorized employee� as �[a] person who locks out
or tags out machines or equipment in order to perform servicing or maintenance
on that machine or equipment�).

[4]
The 2015 incident occurred when an adjuster attempted to clear a paper jam
located in the cutting die. �Because he did not shut down the PCM, the cutting
die continued to reciprocate. �The adjuster inserted his arm into the machine
through an opening below the rear access doors and pushed up on the scrap chute
so that it pivoted upwards. �This created space for his fingers to contact the
reciprocating cutting die and resulted in an amputation injury.

[5]
Although the amended citation includes �tasks such as, but not limited to,
clearing jams,� the Secretary in both his post-hearing brief and his brief on
review maintains that the violative condition at issue relates specifically to
employees raising the scrap chute to clear paper jams.� Likewise, the citation is
limited to the circumstances that occurred �on or about May 8, 2016,� which
involved the employee raising the scrap chute to clear a paper jam.

[6]
The judge found no evidence of actual knowledge.� That finding is not at issue
on review.

[7]
There is no dispute that clearing a paper jam is a servicing and/or maintenance
activity covered by the LOTO standard.� See 29 C.F.R. � 1910.147(b)
(servicing and/or maintenance �activities include lubrication, cleaning or unjamming
of machines or equipment and making adjustments or tool changes� (emphasis
added)).� Although AJM argues that lifting the scrap chute to clear a paper jam
was not a service or maintenance task because it was � � categorically �
prohibited, an illegitimate activity,� the fact that the practice was
prohibited is not relevant in the context of applicability.� It is, however, a
consideration for the knowledge element of the Secretary�s case, as we discuss
below.

[8]
AJM�s reliance on the fact that the PCM was rendered to a �zero mechanical
state� before the employee began clearing the paper jam is misplaced given that
OSHA explicitly rejected the concept of zero mechanical state in the LOTO
standard preamble: �[E]very power source that can produce movement of a machine
member must be locked out.�� Control of Hazardous Energy Sources
(Lockout/Tagout), 54 Fed. Reg. 36,644, 36,678 (Sept. 1, 1989) (Final Rule).�
OSHA further explained that it had reviewed the consensus standard that adopts
the concept of zero mechanical state �and believes that adoption of this OSHA
standard will better effectuate the purposes of the [Occupational Safety and Health]
Act.� The OSHA standard requires the adoption and utilization of a complete
program for the control of hazardous energy, including energy sources not
specifically addressed by the [consensus] standard.�� Id. � In short, the
LOTO standard is more expansive and, as explained below, also includes the
requirement to control for gravitational energy not created by a machine�s
mechanical processes.

[9] AJM does not
dispute, however, that gravitational energy in general is a type of energy
covered by the LOTO standard.� Indeed, the text of the standard, as supported
by the preamble, plainly includes �gravitational energy� as a form of �other
energy� covered by the standard.� See 29 C.F.R. � 1910.147(b) (defining
�energy source� as �[a]ny source of electrical, mechanical, hydraulic,
pneumatic, chemical, thermal, or other energy� (emphasis added));� Lockout/Tagout,
54 Fed. Reg. at 36,666 (explaining that �energy� includes �potential energy due
to pressure, gravity, or spring�); see also Arcadian Corp. , 17
BNA OSHC 1345, 1348 (No. 93-3270, 1995) (considering legislative history where
plain meaning of statutory language is clear only to determine whether there is
express legislative intent to the contrary), aff�d , 110 F.3d 1192 (5th
Cir. 1997); Otis Elevator Co. , 24 BNA OSHC 1081 ,
1082-83 (No. 09-1278, 2013), aff�d , 762 F.3d 116 (D.C. Cir. 2014)
(finding potentially hazardous stored kinetic energy in elevator�s jammed chain
assembly due to weight of partially opened freight elevator gate).

[10]
The Secretary also argues that constructive knowledge can be based on what he
claims is the Plant Manager�s failure to exercise reasonable diligence.� See
Otis Elevator Co. , 21 BNA OSHC 2204, 2208 (No. 03-1344, 2007) (supervisor�s
knowledge imputable to employer).� Under the circumstances of this case and
given that this matter may be appealed to the Third Circuit, an analysis of constructive
knowledge based on the Plant Manager�s conduct depends on many of the same
facts considered in our analysis of reasonable diligence that follows.� See Penn.
Power & Light Co. v. OSHRC , 737 F.2d 350, 357-58 (3d Cir. 1984)
(supervisor�s knowledge imputable to employer, but where supervisor
participates in violative conduct, supervisor�s knowledge only imputable where
supervisor�s participation was foreseeable); Kokosing Constr. Co. , 21
BNA OSHC 1629, 1632 (No. 04-1665, 2006),  aff'd , 232 F. App�x 510  ​( 6th Cir. 2007)
(unpublished) (finding that supervisor could have known of the violative
condition with the exercise of reasonable diligence); see also 29 U.S.C.
� 660(a) (employers may seek review in the circuit in which the violation
occurred, the circuit in which the employer�s principal office is located, or
in the District of Columbia Circuit); 29 U.S.C. �660(b) (Secretary may seek
review in the circuit where the violation occurred or in the circuit in which
the employer�s principal office is located); Kerns Bros. Tree Serv. , 18
BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted) (�Where it is highly
probable that a Commission decision would be appealed to a particular circuit,
the Commission has . . . applied the precedent of that circuit in deciding the
case�even though it may differ from the Commission�s precedent.�).� Accordingly,
the conclusions we reach in that analysis apply equally to any theory of
constructive knowledge based on the actions of the Plant Manager. �

[11]
This group of five employees includes two former adjusters, one current
adjuster, and two current foremen who worked as adjusters in February 2015.� A
total of five former adjusters testified at the hearing, but only two of them were
employed by AJM in February 2015.

[12]
Three former adjusters testified that they received two, two and a half, and
three weeks of training, respectively, while two current foremen who started as
adjusters and one current adjuster all testified that they were trained for �a
couple of months,� �around 90 days,� and six months, respectively.

[13]
The Secretary also claims that AJM�s informal training was inadequate because
on-the-floor training included adjuster-trainees being shown practices that
violated AJM�s work rules, including the rule prohibiting raising the scrap
chute.  But only one adjuster hired after February 2015 testified in that
regard, and his testimony concerned reaching into the scrap chute of an
operating machine, not raising the chute to clear jams. 

[14]
The fifth adjuster testified that he raised the scrap chute once a day to clean
the rails but did not testify that he raised it to clear paper jams.� One of
the four adjusters who testified that he raised the scrap chute to clear jams
also testified he raised the scrap chute to tighten screws.� Given that the
alleged violative condition relates only to raising the scrap chute to clear
paper jams, any testimony related to raising the scrap chute for other reasons
is not relevant.�

[15]
In its briefs on review, AJM characterizes its employee witnesses as seven
supervisors and two adjusters.� However, one of the employees AJM counts as a
current adjuster is an assistant foreman (and was a foreman trainee at the time
of the 2016 incident), though he had worked as an adjuster in the past and in
the period between the incident and his testimony.

[16]
The judge determined that the testimony of one former adjuster who said he
lifted the scrap chute 10 to 15 times a day to clear paper jams over the three
weeks he worked for AJM as an adjuster-trainee was the �possible exception� to
his finding that the witnesses were equally credible.� We likewise give no
credit to the adjuster�s testimony regarding the frequency with which he raised
the scrap chute.

[17]
In making this finding, the judge considered the testimony of the former adjusters
who said they raised the scrap chute for reasons other than clearing paper
jams.� As noted, none of that testimony is relevant to the violative condition
alleged here.� We therefore do not consider it in our analysis here.

[18]
As noted above, testimony from some of the former adjusters that they raised
the scrap chute for reasons other than clearing a paper jam is not relevant to
the alleged violative condition here.� But even if considered, we find that the
evidence would still be insufficient to establish that the adjusters were
raising the scrap chutes for a duration or frequency such that AJM supervisors
should have detected it.��� �

[19]
The prior incidents were described as follows in the record: laceration when
cutting die dropped; laceration while improperly inserting hand in cylinder to
clear scrap paper from cutting die; cut/fracture to pinky while clearing scrap
from operator side of a running machine; and amputation from cutting die while
clearing paper jam.

[20]
As described above, that incident differed from the incident at issue here in
that the adjuster did not shut down the PCM or raise the scrap chute to balance
it in the upward position.� Instead of the scrap chute falling on his fingers, his
fingers contacted the reciprocating cutting die as he was pushing the scrap
chute upward from the rear of the machine.

[21]
Although, as the Secretary points out, none of the disciplinary records
submitted into evidence were issued pursuant to the LOTO program disciplinary
policy, it appears that employees who violated the LOTO program were issued discipline
under the company�s general disciplinary policy, as was the case for the injured
adjuster.

[22] The name
�Peerless Cutting Machine� is derived from the name of the manufacturer,
Peerless Machine & Tool Corporation.� The citation identifies the machines
using this name, although it is not apparent from the record that either AJM or
Peerless ever used this nomenclature. �

[23]
In actuality, the amputation injury occurred on May 8, not May 9.� AJM argues
that the allegation that the violation occurred �on or about� May 9 fails to
meet the requirement set forth in section 9(a) of the Occupational Safety and
Health Act that a citation �describe with particularity the nature of the
violation.�� 29 U.S.C. � 658(a).� (Resp�t Br. 49-50).� That argument is
rejected.� The purpose of the particularity requirement of section 9(a) is to
provide to an employer �fair notice of the nature of the alleged violation.� � Meadows
Indus., Inc. , 7 BNA OSHC 1709, 1710-11 (No. 76-1463, 1979). �A citation can
meet this requirement without going into �minute detail.�� Id. � Although
section 9(a) does not explicitly require that a citation allege the time
that an alleged violation occurred, Commission Rule 34(a)(2)(ii) does require
that the Secretary�s complaint in Commission proceedings state �with
particularity� the �time, location, place and circumstances� of each alleged
violation.� 29 C.F.R. � 2200.34(a)(2)(ii).�

The
allegation in both the original citation and the subsequent complaint that the
violation described in instance �d� occurred �on or about May 9� is
sufficiently particular to meet the requirements of both section 9(a) and
Commission Rule 34(a)(2)(ii).� AJM received fair notice of the nature of the
alleged violation and understood instance �d� to pertain to the amputation
injury that had occurred on May 8.� ( See e.g. , T. 44-50).� AJM does not
argue (and has not demonstrated) that its defense on the merits was prejudiced
by the way the citation (or the subsequent complaint) averred the time of the
alleged violation.� See Gold Kist, Inc. , 7 BNA OSHC 1855, 1862 (No.
76�2049, 1979) (rejecting argument that citation be dismissed for lack of
particularity where the employer�s ability to defend on the merits was not
prejudiced).

[24] The use of
the word �shoot� for its homonym �chute� is understandable in that scrap paper
literally shoots out of the scrap chute�s discharge portal at the rate of about
45 times per minute. �( See video clip at Ex. C-23).

[25] Sometime
after W.F.�s amputation injury, AJM again modified the scrap chute by securing
it in its canted operating position with pins that would have to be removed in
order to raise the scrap chute.� (T. 594).

[26]
The documentation of disciplinary action reflected in Exhibits R-6, R-23, R-26,
and R-27 has not been represented to reflect all documented discipline for
violations of Rule 6 taken at the Facility in the years 2013 to 2017.� The
record does not contain information on the total number of documented instances
of discipline for Rule 6 violations over that period.

There are 94 documented instances of discipline for Rule 6 violations in
Exhibit R-6.� There are six additional instances of documented discipline for
Rule 6 violations in Exhibit R-23 at pages 4�7, 10�13, and 54.� There are three
additional instances of Rule 6 violations documented in Exhibit R-26 at pages
2, 3, 9, 10, 12 & 13.� There is one additional Rule 6 violation reflected
in Exhibit R-27 at page 18.

The disciplinary events reflected in Exhibit R-23 at pages 14�53 and
62�92 are duplicates of discipline reflected in Ex. R-6.

The
discipline reflected at pages 55�61 of Exhibit R-23 involves a violation of
Rule 7 pertaining to threatening conduct and is a duplicate of the
documentation reflected in Exhibit R-26 at pages 21-29.� That discipline does
not involve a Rule 6 �safe work practices� violation.

The documentation regarding employee injuries reflected in Exhibit R-23
at pages 1�3 and 9 does not indicate any discipline having been taken with
respect to those four employee work injuries.� However, as to the amputation
injury reflected by the incident report dated 2/24/2014 at page 2 of Exhibit
23, there was testimonial evidence that the injured employee was fired after
AJM received test results indicating that he had been impaired by alcohol when
he sustained the injury.� (T. 2543-44).� However, no documentation of
disciplinary action taken against that employee was identified or offered in
evidence.�

[27] As to the
amputation injury having occurred on May 8, not on May 9, see footnote 2, supra .

[28] The averment
in each instance that �lockout devices were not affixed� is a remnant of the
allegations of the original LOTO citation item (subsequently amended by the
Secretary�s complaint), which had alleged four instances of a violation of �
1910.147(d)(4)(i), which provides: �Lockout or tagout devices shall be affixed
to each energy isolating device by authorized employees.�� (Complaint,
2/13/2017).� AJM does not dispute that lockout devices had not been affixed in
connection with any of the alleged instances.

[29] The LOTO
standard defines the term �servicing and/or maintenance� in � 1910.147(b)
as follows:

Servicing and/or maintenance .� Workplace activities such as
constructing, installing, setting up, adjusting, inspecting, modifying, and
maintaining and/or servicing machines or equipment.� These activities include
lubrication, cleaning or unjamming of machines or equipment and making
adjustments or tool changes, where the employee may be exposed to the
unexpected energization or startup of the equipment or release of hazardous
energy.

[30] While the
evidence was insufficient to establish that any zone of danger existed in the
scrap chute area that is accessed through the opening that is accessed through
scrap chute guard of operating PCMs outfitted with cutting die guards, the
evidence was similarly not conclusive with respect to whether the cutting die
guard was adequate to protect employees from injury under those circumstances.�
The issue of whether the cutting die guard meets the minimum requirements of
the machine guarding standard at subpart O of 29 C.F.R. pt. 1910 was not a
matter put in issue by the pleadings, was not actually tried by the parties,
and is not adjudicated herein.� See McWilliams Forge Co., Inc. ,
11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (�Trial by consent [under FRCP
15(b)] may be found only when the parties knew, that is, squarely recognized,
that they were trying an unpleaded issue.�)

[31] As to
instances �a�, �b� and �c�, the Secretary does not argue, and none of the
evidence suggests, that the CO observed any of the adjusters involved utilizing
the E-Stop Method to remove scrap paper from the scrap chute.� And as to
instance �d� (relating to the amputation injury on May 8, 2016), even though
the employee had activated the e-stop button located on the PCM�s control panel
before he raised the scrap chute to its upright position, he did not engage the
e-stop as part of an attempt to clear scrap paper from the scrap chute (as
adjusters do when utilizing the E-Stop Method).� (See Findings of Fact � 60).

[32] The Secretary
argues that the E-Stop Method �did not exist prior to the citation being issued,�
but rather that AJM concocted it afterwards.� (Sec�y Br. 31-33).� This argument
is rejected.� The record is replete with testimony from witnesses called by
both parties that in the years before OSHA commenced the underlying
investigation, the E-Stop Method was widely known, understood, and commonly
utilized to clear scrap paper from the scrap chute.� ( See Findings of
Fact � 50).�

The
circumstantial evidence that the Secretary contends establishes that AJM
concocted the E-Stop Method after the citation was issued was not
preponderant.� (Sec�y Br. 31-33).� One item of circumstantial evidence is that
during the investigation AJM management told the CO that employees were
required to utilize LOTO procedures to clear scrap paper from the scrap chute
area, and that they never mentioned the E-Stop Method to him.� (Findings of
Fact � 76).� Further, in an unverified interrogatory response made early
in the litigation, AJM stated that the use of LOTO procedures was mandatory
when clearing scrap paper from the scrap chute.� (Ex. C-29 at 8).� Both of
these circumstances support at least a reasonable suspicion that AJM fabricated
the E-Stop Method post-citation.� However, that reasonable suspicion was
refuted decisively by the abundant and uncontroverted testimony from witnesses
called by both parties that the E-Stop Method was well known and frequently
utilized well before the commencement of the investigation.� The circumstantial
evidence cited by the Secretary suggests at the least that AJM was less than
fully forthcoming with both (1) the CO before the citation was issued, and (2)
with its attorneys in the preparation of the unverified interrogatory
response.� But that evidence does not establish that AJM concocted the E-Stop
Method after the citation was issued.

[33] Use of the
E-Stop Method does not involve locking out or tagging out anything on a PCM,
but even if it did, it could not constitute a compliant LOTO procedure.� The
locking or tagging out of an �energy isolating device� is an essential
component of a compliant LOTO procedure.� The LOTO standard�s definition of
�energy isolating device� expressly excludes �control circuit type devices,�
providing that �[p]ush buttons, selector switches and other control circuit
type devices are not energy isolating devices.�� � 1910.147(b).� The e-stops on
the PCMs are �control circuit type� devices (see Findings of Fact, �� 38�39),
and thus utilizing a procedure that relied on locking or tagging out the
machine�s e-stops would not constitute a procedure that met the LOTO standard�s
minimum requirements.�

[34] AJM was not
the original owner of the PCMs at the Facility but rather acquired them from
entities other than Peerless.� (T. 1371-73).� The record does not reflect
whether AJM or some prior owner had modified the PCMs used at the Facility to
bypass or eliminate the original interlock feature.� However, the evidence did
establish that AJM fabricated and installed the non-interlocked hinged scrap
chute guard on each PCM, and that AJM could have configured the scrap chute
guards with a safety interlock feature.� (T. 1324-26, 1364, 1371-73).

After the citation was issued, AJM modified the scrap chute
guard by causing it to be secured in its closed position by some type of
fastener such as a bolt or screw.� (T. 589).� After that modification, it
became necessary for employees to use a hand tool to remove the bolt or screw
to open the scrap chute guard.� (T. 2309).

[35] �Even though
the Secretary failed to establish that the cited LOTO standard applied to
instance �b� (involving PCM #13 and adjuster Brandon Mendieta), the issue of
whether the Secretary proved non-compliance with the cited standard as to
instance �b� is adjudicated herein as well and is intended to provide an
additional ground for vacating instance �b�.

[36]
Griner testified that he quit AJM upon walking out of a meeting in which
managers were giving him a �work improvement notice� for having left PCMs
unattended. �(T. 340-43).� AJM�s view of the circumstances of Griner�s
departure was that AJM terminated his employment after he walked out of that
meeting.� (T. 1656; Ex. R-27 at 1).

[37] D.F. is the
nephew of the employee who suffered the amputation injury on May 8, 2016, (and
who for privacy considerations is identified in this Decision by initials
�W.F.�).� (T. 640).

[38] The
Secretary argues also that AJM violated the LOTO standard by not requiring that
W.F. utilize LOTO procedures after accessing the interior of the PCM through
the interlocked rear access doors, on the ground that the interlocked rear
access doors involve the use of control circuitry.� (Sec�y Br. at 34-35).� For
essentially the same reasons described in connection with the discussion of the
E-Stop Method, supra , the Secretary has not established that employees
accessing the interior of the machine through the interlocked rear access doors
are exposed to hazardous energy.� The Secretary has thus not established that
the LOTO standard applies when employees access the interior of the PCM through
the opened rear access doors (except for when an employee also raises the scrap
chute from its operating position).� (See Findings of Fact �� 36�37).

[39] Even though
the Secretary has failed to carry his burden to prove that AJM had constructive
knowledge of the violative physical condition, it is not a certainty that AJM
would have established even a prima facie UEM defense, which is often
simply a mirror image of what the Secretary must prove to establish
constructive knowledge.�

The first
element of the UEM defense requires the employer to show that it had �established
work rules designed to prevent the violative conditions from occurring.�� Manganas
Painting Co. , 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007).� The work rule on
which AJM pins its UEM defense is the rule prohibiting adjusters from raising
the scrap chute to clear paper jams.� (Ex. R-14 at 3-5, quoted in Findings of
Fact � 57).� AJM implemented this work rule in the aftermath of an
amputation injury that had occurred when an adjuster had raised the scrap chute
while the PCM was running (and thus while the cutting die was reciprocating)
and was injured by contact with the reciprocating cutting die. �That employee
was not injured from the hazardous gravitational injury that was present in the
raised scrap chute.� ( See Findings of Fact � 55).� There is no
evidence that the purpose of the rule was to prevent exposure to hazardous
gravitational energy present in a raised scrap chute.

AJM does
not assert that W.F.�s failure to utilize LOTO procedures to neutralize the
gravitational energy in the raised scrap chute was a result of W.F.�s
misconduct, and it could not reasonably make such an assertion because AJM had
no such LOTO procedures.� So it is at least questionable whether AJM�s UEM
defense to instance �d� was viable, because the work rule AJM relies upon to
establish the defense was not designed or intended �to prevent the violative
condition� from occurring (the �violative condition� being the gravitational
energy present in a raised scrap chute that could cause injury to an
employee).� Calpine Corp. , 27 BNA OSHC 1014, 1020 (No. 07-0645, 2018), aff�d ,
774 F. App'x 879, 882 (5th Cir. 2019) (unpublished) (concluding that employer
failed to establish first prong of UEM defense because the work rule involved
was "not equivalent to the cited standard"), citing Daniel Int'l
Corp. , 9 BNA OSHC 2027, 2031 (No. 76-181, 1981), and Boh Bros. Constr.
Co., LLC , 24 BNA OSHC 1067, 1075 (No. 09-1072, 2013) (rejecting UEM defense
where employer's work rule did not meet cited standard's requirements); S.
Hens, Inc. , 930 F.3d at 678 (determining a work rule to �keep hands off
moving machinery� did not suffice to support UEM defense to a LOTO violation
because the work rule did not �specifically match� the LOTO violation at issue);
Valdak Corp. v. OSHRC , 73 F.3d 1466, 1469 (8th Cir. 1996) (noting that
to establish UEM defense employer must prove �that it had a work rule in place
which implemented the standard�).

[40] The rule was
directed only to adjusters.� There is evidence that the rule did not apply to
AJM�s approximately 10 to 15 maintenance mechanics.� (T. 1435, 2423-24,
2477-78, 2498).� But no evidence was presented of any circumstances in which
maintenance mechanics could be injured during their maintenance activities by
the gravitational energy that is present in a raised scrap chute.� AJM�s
compliance with the LOTO standard with respect to the service and maintenance
activities of its maintenance mechanics is not a matter in issue.

[41] Transcript
page 2749 and 2817 reflects the phonetic spelling of W.F.�s identifying
Machuca.� A correct spelling of the Machuca�s name appears at T. 2104.