Donghee Alabama, LLC

Read the official release (oshrc.gov)

Plain-English summary

Donghee manufactured automotive fuel tanks at an Auburn, Alabama facility using blow-molding and testing machines. A production manager entered an operating blow-mold machine and suffered a broken foot, while light curtains and laser scanners on four other machines were not functioning. The judge affirmed a serious lockout violation and serious machine-guarding violations involving two helium-test machines. A guarding violation involving a pad-check machine remained willful because a maintenance manager deliberately disabled its scanner to increase production, but the second pad-check instance was reclassified as serious because the record did not show why its scanner stopped working. The full proposed penalties totaling $135,019 were assessed despite that reclassification.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.147(f)(1)(ii), 1910.212(a)(1)
• Outcome: All violations were affirmed, one machine-guarding instance was reclassified from willful to serious, and $135,019 in penalties was assessed.
• Key point: Deliberately disabling a machine safety device to increase production supports willfulness, while an unexplained failure to repair a device may support only a serious classification.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant

v.

OSHRC Docket No.: 19-1061

Donghee
Alabama, LLC,

Respondent.

Appearances:

Kristin R. Murphy, Esq.

Office of the Solicitor, U.S. Department of Labor, Atlanta, GA

For Complainant

John H. Coleman, Esq.,

Burr & Forman, LLC, Birmingham, AL

For Respondent

Before: Administrative Law Judge
Sharon D. Calhoun

D ECISION AND ORDER

At
its
facility in Auburn, Alabama, Respondent,
Donghee
Alabama, LLC
(“ Donghee ”) , manufactures gas tanks , which
are later installed in motor vehicles .
( Exhs . J-1 ¶
C( 5); C-3; Tr. 35-36, 66 ).
In the process of manufacturing and testing these gas tanks,
Donghee
utilizes at least three types of machines relevant
to th is case .
One type of machine is a Blow Mold Machine, a mainly automated machine which diecasts the
plastic
gas tanks.
( Exhs . C-2, C-3 , R-1;
Tr.
52,
63-66 ).
A second type of machine is a Helium Test Machine, which injects the
finished
gas tanks with helium
and measures levels of escaped helium
to detect
any leaks present
in the tanks .
( Exhs . C-6, at 1-5; C-7, C-8, R-11, R-12A, R-12B, R-13, R-14; Tr. 37 , 122 ).
A
third type of machine is a Pad Check Machine, which senses whether
a number of
rubber pads have been properly
attached
to
the
finished and tested
gas tanks.
( Exhs . C-9, C-10, R-6, R-8, R-9; Tr. 37-38, 124, 387-88 ).
The Helium Test Machines and the Pad Check Machines are named for their “lines,” which refer to the make and model of the vehicle in which they are to ultimately be installed.
( Tr. 38, 209 ).
At issue here a re
two Helium Test Machines, the TMA Line and UMA Line Helium
Test
Machines
(“TMA
Helium Test Machine” and “UMA Helium Test Machine”) , and two Pad Check Machines, the ADA and LFA Line Pad Check Machines
(“ADA Pad Check Machine” and “LFA Pad Check Machine”) .
( Citation, at 7 & 8 ).
If there are multiple Blow Mold Machines
present
in
Donghee ’s
Auburn
facility, only “Blow Mold Machine #1” is relevant for purposes of this case.
( Id.
at 6 ).

The Helium Test Machines are equipped with manufacturer-installed “light curtains” on
the front and
sides of the machine.
( Exh . C-6, at 1-4; Tr. 42-44, 48-50, 88-89 , 98-100 ).
A light curtain is a bar
with
a “transmitter” and a “receiver”
between which invisible light beams run .
(Tr. 48-49).
If something breaks the plane of the light curtain, an employee’s hand for instance, the Helium Test Machines immediately stop
mid-cycle .
( Tr. 48-49, 238-39 ).
In a similar fashion,
the Pad Check Machines are equipped with “laser safety scanners,” which create a perimeter of invisible
light
beams around the
machines,
and which stop the Pad Check Machines if th e
perimeter is disrupted.
( Exh . C-9, at 2; Tr. 49, 124-25 ).

I n early 2019, the Occupational Safety and Health Administration (“OSHA”) received a complaint
indicating
the light curtains
on
the
Helium Test Machines
and
the
laser safety scanners on
the
Pad Check Machines
in
Donghee ’s
Auburn facility
were not functioning properly.
( Exh . J-1 ¶
C( 6); Tr. 36-37 ).
On February 5, 2019, OSHA sent a Compliance Safety and Health Officer (“CSHO”) to investigate this complaint.
( Exh . J-1 ¶
C( 7); Tr. 50 ).
After inspecting
Donghee ’s
facility and its manufacturing equipment and conducting interviews with employees, managers, and safety personnel, the CSHO learned the following :

Regarding
the Helium Test Machines, the CSHO learned the light curtains
installed
on the TMA and UMA Helium Test Machines were either not functional or only partially functional
at the time of his inspection
and had been that way for several months.
( Exhs . C-6, at 6; C-14; Tr. 42-44, 51, 95-96, 111-12, 116 ).
He learned the laser safety scanner on the LFA Pad Check
Machine
had
similarly
not been functional for
a number of
months.
( Tr. 51-52 , 134, 140-41, 211, 304-05 ).
Regarding the
ADA Pad Check Machine, the CSHO learned its laser safety scanner had been deliberately disabled
by
Donghee ’s
maintenance manager
approximately three years prior to the inspection .
This was done
expressly
for the purpose of increasing production efficiency because
a number of
“false alarms” had halted
the
cycling of
the machine.
( Tr. 130-33,
30 0 -04).
Th is
laser safety scanner was still disabled at the time of the
CSHO’s
inspection.
( Tr. 130-33, 300-04 ).

Over the course of his investigation, the CSHO also learned of an incident involving the Blow Mold Machine
which
had occurred earlier that year.
O n January 23, 2019,
a
Donghee
production manager
had entered the Blow Mold Machine to observe it in motion
in an attempt to
address quality issues with the gas tanks
being produced by the machine .
( Exhs . C-2A, C-2B, R-3, R-3A, R-4, R-5; Tr. 55, 209, 272-74, 348-49 ).
As the machine was completing its cycle, a portion of the machine struck and broke the observing
manager ’s foot.
( Exh s .
C-2A, C-2B,
C-3 at 00:35 to 00:41; Tr.
41,
63-64 , 67-73 ).

Following his investigation, the CSHO concluded
Donghee
had violated three of OSHA’s
general industry safety standards
promulgated pursuant to
the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 ,
et seq.
(“the Act”) .
OSHA therefore issued a two-item serious Citation and Notification of Penalty (“Citation”) and a one-item willful Citation to
Donghee
alleging
as follows :

Citation 1, Item 1 alleged a serious violation of 29 C.F.R. § 1910.147(f)(1)(ii)
for
the incident with
the
employee injured in the Blow Mold Machine
for
Donghee
having
failed to ensure employees were removed from the machine during testing or positioning.

Citation 1, Item 2 alleged
two instances of
a serious violation of
29 C.F.R. § 1910.212(a)(1) for failing to ensure proper guarding on the Helium Test Machines
based on
the
light curtains on the machine s
not being
function al
at the time of the inspection.

Citation 2, Item 1 alleged two instances of a willful violation of 29 C.F.R. § 1910.212(a)(1) for failing to ensure proper guarding on the Pad Check Machines
based on the
laser safety scanners on the machines
not being
function al
at the time of the inspection.

The Citations proposed a total penalty of $135,019.

Donghee
filed a timely Notice of Contest thereby bringing this matter before the Occupational Safety and Health Review Commission (“Commission”) and this Court.
The Court held a hearing on this matter on March 21 and 22, 2022 in Montgomery, Alabama.
The parties have filed post-hearing briefs.
For the reasons laid out in detail below, the Court makes the following determinations:

Citation 1, Item 1 is
AFFIRMED
as a serious violation
of 29 C.F.R. § 1910.147(f)(1)(ii)
and the proposed penalty of $13,127 is
assessed.

Both instances of Citation 1, Item 2 are
AFFIRMED
as serious violations
of 29 C.F.R. § 1910.212(a)(1)
and the proposed penalty of $9,377 is assessed.

Both instances of Citation 2, Item 1 are
AFFIRMED , although only instance (a) is affirmed as a willful violation
of 29 C.F.R. § 1910.212(a)(1) .
Instance (b) is reclassified as a serious
violation.
However, the total proposed penalty of $112,515 is assessed
for
Donghee ’s
willful violation .

JURISDICTION AND COVERAGE

The parties agree
Donghee
timely contested the Citations ( Exh . J-1 ¶¶
C( 3) &(4)).
The parties further agree the Commission has jurisdiction over this action and
Donghee
is a covered employer under the Act ( Exh . J-1 ¶¶
C( 1)-(2)). Based on these stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act, and
Donghee
is a covered employer under § 3(5) of the Act.

BACKGROUND 1

Donghee
Alabama

Donghee
manufactures “automotive parts” at a facility located in Auburn, Alabama
where it employs
approximately
105 people .
( Exh . J-1 ¶
C( 5) ;
Tr.
87 ).
C ertain people working in the facility
are
employed by
Donghee
directly while others work for two other companies, “Jian” and “J&C,” wh ich
suppl y
temp orary
workers to operate
Donghee’s
machines on certain occasions.
(Tr. 46-47, 117,
208,
235, 240-41).

Among the automotive parts
Donghee
produces and tests at its facility in Auburn are gas tanks for Hyundai and Kia-brand motor vehicles.
( Exhs . J-1 ¶
C( 5); C-3; Tr. 35-36, 66 ).
At least three different types of machines are i nvolved
in the production and testing of gas tanks at
Donghee ’s
facility in Auburn:
the Blow Mold Machine, the Helium Test Machines, and the Pad Check Machines.
The Court will detail each type of machine, including how it is operated by
Donghee ’s
employees and any safety hazards associated with the machine.

The Blow Mold Machine

The Blow Mold Machine
produces the gas tanks at
Donghee ’s
Auburn facility through a diecasting process.
( Exhs . C-2, C-3, R-1; Tr. 52, 66 ).
The machine is
caged off from the rest of the facility .
( Exhs . C-2, C-2A, C-2B, C-3, R-1; Tr. 60-62 ).
The machine
consists of several moving parts
and typically
operates in automatic cycles .
( Exh . C-3; Tr. 52, 66, 288, 347 ).
A
cycle of the Blow Mold Machine
proceeds
as follows :
t he two halves of the gas tank mold
are pressed together , and the mold is injected with molten plastic.
( Exh . C-3 at 00:20-00:36; Tr. 66 ).
A longer “shuttle” then travels the length of the caged -off
area and thereby extracts the finished gas tank from the mold. ( Exh . C-3 at 00:36 to 00:40; Tr. 66 ).

The Accident Involving the Blow Mold Machine

On January 23, 2019, one of
Donghee ’s
p roduction
m anagers,
Woong Gi Park, noticed an issue with the quality of the tanks being produced by the Blow Mold Machine : t he
tanks were not sealing properly.
(Tr. 72-73).
To address this issue, Park planned to enter
the
caged - off area
of
the Blow Mold Machine and observe
the machine
in motion
while it cycled.
( Exhs . C-2A & C-2B; Tr. 58-61, 67-69, 71-73 ).
Per
Donghee ’s
policy on observing active machines, Park filled out a “Non s tandard Work Safety Analysis” form, in which he addressed, among other issues, how he intended to
abate
the hazards associated with being in proximity to the Blow Mold Machine while it cycled.
( Exh . C-4; Tr.
75-78, 272, 344-48, 359-60 ).
To a bate
these hazards, Park simply wrote “communication,” which ultimately translated
in to him
stationing a
second employee by the Blow Mold Machine’s emergency-stop button
to
halt
the
machine
if necessary.
( Exh . C-4; Tr. 78-80, 346-47 ).
Donghee ’s
safety manager, Michelle Blankenship, signed this form and thereby approved Park’s plan to enter the Blow Mold Machine.
( Exh . C-4; Tr. 75, 80-81, 272 ).

Park entered the
caged -off
area of the Blow Mold Machine and stood on a small ,
grate d surface
adjacent to the moving
shuttl e .
( Exhs . C-2A & C-2B; Tr. 52, 56-62, 66, 71-72 ).
Donghee ’s
written lockout/tagout (“ LOTO ”)
policy requir ed Park to put the Blow Mold Machine
into “manual” mode
and operate it with a handheld “pendant”
when observing it
in motion . ( Exh . R-3, at 3; Tr. 288, 346-48, 355).
I nstead ,
Park left the machine in “automatic” mode.
( Tr. 288, 34 8-49 ) .
As the machine was completing a
cycle, the
moving
shuttle portion of the machine
was traveling
the length of the caged-off area to extract a finished gas tank and ,
in doing so ,
struck Park’s foot and broke it.
( Exh . C-3, at 00:04 to 00:10; Tr. 64, 69-71, 209, 348 ).
Following its investigation
of the accident ,
Donghee
concluded Park had violated the company’s
LOTO policy, and
Park received both a verbal and written warning as
a result . 2
( Exhs . R-3, R-3A, R-4; Tr. 189, 288-89 ).

The Helium Test Machines

Donghee
utilizes
“ Helium Test Machines ”
in its Auburn facility, two of which are implicated in this case: the TMA Helium Test Machine and the UMA
Helium Test Machines.
( Exh . J-1 ¶
C( 5); Citation at 7; Tr. 36-37 ).
Both machines cycle 300 times a shif t, two shifts a day .
( Exh . J-1 ¶¶
C( 10) & (11)).
As a general matter,
the
two machines serve the same purpose.
Both
of the machines
have testing chambers wherein
a finished gas tank
is filled
with helium .
(Tr. 37).
The machines have sensors to detect
whether any helium escapes
into the testing chamber , thereby detecting
whether there are
any leaks in the finished tanks.
( Tr. 37 ).
As a practical matter, employees operate the two Helium Test Machines differently
and
so
are exposed to distinct hazards from each .

The TMA Helium Test Machine

In operating
the TMA Helium Test Machine,
a
Donghee
employee places the gas
tank on a flat metal plate, which is approximately at waist height, and connects a hose to the tank.
( Exh . C-7, at 00:00 to 00:13; Tr. 37 , 109-10, 122 ).
The employee then
presses
the machine’s
start button, which causes the metal plate on the machine to
lift up
into
a
vacuum testing chamber.
( Exh s .
C-6, at 1;
C-7, at 00:13 to 00:22; Tr. 37, 109-10, 122 ).
No evidence was offered on the
exact
height of this chamber ; h owever, in the video clip of the machine’s operation, the chamber is located
above
the
head of the
employee operating the machine.
( Exh . C-7, at 00:00 to 00:05 ;
see also
Tr. 181 ( CSHO
stating the chamber
was
“above my head” ) ).
After the machine completes its testing of the gas tank, the
metal plate is lowered back to its starting position.
( Exhs . C-8, R - 12A ).
The lowering of the metal plate
occurs
automatically when the machine has finished its testing of the gas tank. 3

The operation of the TMA Helium Test Machine exposes workers to several potential hazards.
First,
on either side of the
moving
metal plate
are pinch points where the plate meets flush with a flat, metal surface on the machine .
( Exhs . C-8, R-12B; Tr. 109-11 , 296-98 ).
The manual for the TMA Helium Test Machine acknowledges the existence of these pinch points.
(Tr. 296-98). 4
Second,
the metal plate applies approximately 87 pounds of pressure in the process of lifting and lowering the gas tanks into the testing chamber and therefore poses a crush hazard , especially for someone
who may be
standing below the plate as it lowers .
( Exhs . C-8, R-12B;
Tr. 89-92, 109 ).

To address these hazard s , the
TMA Helium Test Machine
is equipped
with manufacturer- installed
light curtains.
( Exh s . C-6, at 1 & 2;
C-14, at 2;
Tr. 48-50, 88-89 , 218-19, 258 ).
A light curtain
consists of
a transmitter and receiver which emit invisible light between them.
( Tr. 48-49 , 258 ).
If something disrupts the plane of light
between the transmitter and receiver , an employee’s hand for example, the machine automatically stops mid-cycle.
( Tr. 48-49 , 218, 258 ).
The TMA Helium Test Machine ha s
two light curtains on the front of the machine and one on each side.
( Exh . C-6, at 1 & 2; Tr. 50, 88-89 ).
At the time of OSHA’s inspection, the light curtains on the TMA Helium Test Machine had been
either
inoperative
or only partially operative
for
approximately
three to six months.
( Exh s .
J-1 ¶
C( 6),
C-14, at 2 ; Tr. 95-96 , 218, 259-60 ).
Donghee ’s
managers were aware of the issue
regarding
the TMA Helium Test Machine ’s light curtains .
( Tr.
50- 51, 95-96, 116,
259-60 ).
Nonetheless, employees continued to operate the machine without functioning light curtains.
( Tr. 95-96 ).

In lieu of
functional light curtains , tape had been placed on the ground approximately 3 to 4 feet in front of the
TMA Helium Test Machine , and
Donghee
instructed some of its employees to stand behind this tape while the machine cycled .
( Tr. 116, 122; Tisdale Dep. 73, 80, 93 ).
However, many employees did not know the purpose of the tape or
simply
“ forgot ”
to stand behind it while the machine cycled .
( Tr. 117-18 ).

The UMA Helium Test Machine

The UMA Helium Test Machine is operated altogether differently from the TMA
Machine .
First, employees load a gas tank into a large metal
“ drawer ”
by sliding it
off a metal surface
adjacent to the open drawer .
( Exhs .
C-6, at 3 & 4;
R-14, at 00:12 to 00:26;
Tr. 100-01, 107,
109,
190 ).
The employees must then reach into the drawer to attach hoses to the gas tank, hoses which will ultimately fill the tank with helium to te s t for leaks.
( Exh . R-14, at 00:26 to 00:37; Tr. 37, 107, 109-10 , 261-62 ).
An employee then starts
a cycle
by
“swiping” a button
in front of the machine.
( Exhs . C-6, at 3 & 4; R-14, at 00:37 to 00:40; Tr. 108, 190-91 ).
This causes the drawer to slide into the testing chamber.
( Exh . R-14, at 00:40 to 00:44; Tr. 108, 190 ).
After the machine finishes testing the tank, the drawer then automatically slides back out.
( Exhs . C-6, at 4; R-14, at 02:24 to 02:32; Tr. 103 ).
Employees must then reach back into the drawer to remove the hoses from
the tested tank and slide it out from the drawer.
( Exh . R-14, at 02:32 to 02:44; Tr. 108 , 261-62 ).

The sliding of the drawer on the UMA Helium Test Machine exerts approximately 125 pounds of pressure and thereby creates
pinch
and
crush point s when the machine is cycling.
(Tr. 105-06).
One particular pinch or crush point exists
between the
sliding
drawer and
an
aluminum “stop” located halfway on the front of the
surface
on which the drawer slides .
( Exh . C-6, at 3, 4, 6; Tr. 100-04, 111-13 ).
This pinch point is clearly labeled
by stickers
on the machine.
( Exh . C-6, at 5 ).
Additionally, the sliding of the drawer into
and out of
the testing chamber creates pinch points between the side of the drawer and adjacent metal surfaces, pinch points which are
also
clearly labeled
by
stickers
on the
machine.
( Exh . C-6, at 3 & 4; Tr.
100-04, 107, 111-13 , 260-61 ).

To address these potential hazards, the UMA Helium Test Machine, like the TMA
Machine , is equipped with manufacturer-installed light curtains on the front and sides.
( Exh . C-6, at 3; Tr. 48-49,
89,
98, 210-11 ).
T he se
light curtains were not fully functional at the time of the CSHO’s inspection, with the side curtains being completely inoperative and the front
curtains
functioning
only intermittently.
( Exh s .
C-6, at 6;
C-14, at 2; Tr.
97, 100, 218, 259-60 ).
Donghee ’s
managers were aware of the issue
regarding
the
U MA Helium Test Machine.
( Exh . C-6, at 6;
Tr.
50- 51, 116, 259-60 , 270-71 ).
Nonetheless,
Donghee
employees
continued to operate the UMA Helium Test Machine
with partially functional and completely inoperative
light curtains .
( Exhs . C-6, at 6; C-14, at 1; Tr. 113 ).
Finally, like the TMA
Machine , tape had been placed in front of the UMA Helium
Test Machine . S ome employees had been instructed to stand behind this line while the machine cycled , while
others had not been trained on the tape’s purpose .
( Tr. 117-18; Tisdale Dep. 93 ).

The Pad Check Machines

The
two Pad Check Machines at issue, the LFA and ADA
Pad Check Machines , are
both
operated similarly.
( Exhs . C-10, R-9; Tisdale Dep. 173 ).
The main purpose of the Pad Check Machines is
to ensure
the attachment of
four or five rubber pads, which are
attached to the
tanks to decrease the amount of vibration and rubbing against the frame of the motor vehicle s in which the
tanks
are installed .
( Tr. 37-38 , 221, 387-88 ).

To
operate a Pad Check Machine , a
Donghee
employee slides a tank from the line onto a flat metal surface
of the
machine
and up against a T-shaped “stopper” on the far end of the
metal
surface.
( Exhs . C-10, at 00:00 to 00:06; R-9, 00:03 to 00:10; Tr. 124 , 138, 225-26 ).
The distance between the employee and
the
gas tank
at this point in time
is approximately eight inches.
( Tr. 162;
Tisdale Dep. 48-49, 51 ).
The employee then scans a bar code on the
tank and activates the Pad Check Machine by pressing the start button.
( Exh s . C-10, at 00:06 to 00:12; R-9, at 00:12 to 00:13; Tr. 124, 140 ).
This causes a metal “arm” to swing down
toward
the gas tank , which
is
lifted from the surface of the machine
by
what appear to be plastic lifts .
( Exhs . C-10, at 00:13 to 00:20; R-9, at 00:13 to 00:17; Tr. 124 ).

Attached to th e
arm
is a half-inch thick, aluminum plate ,
and attached to th e
plate are
a number of
three-pound rated springs
or “plungers”
situated in the same pattern as the rubber pads on the gas tanks.
( Exhs . C-9A & 9B;
C-10, at 00:19;
R-18; Tr.
125,
320-21,
374, 384-90 ).
The three-pound rating on the springs does not represent the actual amount of force exerted by the metal arm when
it
moves up or down, or the amount of pressure the arm is capable of exerting.
(Tr. 387-88, 390-91).
Rather, a s the arm presses down on the gas tank, the springs are designed to sense the amount of pressure being exerted
on them , and once that level of pressure reaches three pounds on each spring, the Pad Check Machine is designed to recognize all the rubber pads have been
attached to
the tank.
( Tr. 320-21, 387-88, 391 ).
After the springs determine the attachment of the pads
to
the tank, t he metal arm then swings back up to its starting position.
( Exhs . C-10, at 00:20 to 00:25 ; R-9, at 00:19 to 00:21 ).

The entire
testing process takes a little over ten seconds from the time the employee activates the machine.
( Exhs . C-10, at 00:12 to 00:24; R-9, at 00:12 to 00:23).
Once the process is complete, a ssuming the rubber pads have all been
properly
installed, the employee then places
plastic bags over certain parts of the tank and removes
the tank
from the metal surface of the Pad Check Machine.
( Exh . C-9, at 00:24 to 00:34 ; Tr. 163 ).
This process occurs at both Pad Check Machines 300 times per shift ,
two shifts a day.
( Exh . J-1 ¶¶
C( 8) & (9); Tisdale Dep. 66 ).

The operation of the Pad Check Machines expose s
employees to several hazards.
First,
although the
parties
dispute
whether the plungers
actually present
a hazard ,
they
have stipulated
to the existence of
pinch points where the springs on the arm of the machine meet the surface of the gas tank.
( Exh . J-1 ¶¶
C( 8) & (9) ; Tr. 166; Tisdale Dep. 36 ).
Second, the metal arm
of the machine swings up and down as the machine operates while the operator is merely inches away, posing a struck-by hazard to the operator
from the half-inch aluminum plate attached to the arm .
( Exhs . C-10, at 00:13 to 00:26; R-6,
R-9, at 00:12 to 00:21;
Tr. 125-27 ).
Finally, as evidenced by
an
injury occurring
on the ADA Pad Check Machine
three to four months prior
to the CSHO’s inspection, 5
the raising and lowering of the metal stopper at the end of the machine
can
pose a struck-by hazard
to an employee reaching over the machine .
( Exhs . C-14, at 1; C-15, at 2; Tr. 210, 221, 225, 244-45, 263, 283-84 ).

Both Pad Check Machines cam e
equipped with laser safety scanners to address the hazards posed when operating the machines. 6
( Exh . C-9, at 2;
Tr. 49, 124 , 211-12, 219-20 ).
Similar to
a light curtain, a laser safety scanner creates a perimeter of invisible light, and if something disrupts th e
perimeter, the
m achine immediately shut s
off.
( Tr. 49, 140-42, 211-12 ).
Regarding
the LFA Pad Check Machine, the laser safety scanner had not functioned properly for two or three months before the CSHO’s inspection.
( Tr.
51- 53 , 304-05 ).
Donghee ’s
managers were aware of this issue.
(Tr. 51, 304-05).
Nonetheless, employees
were
instructed to continue to
operate
the machine.
(Tr. 211-12) .

Regarding
the ADA Pad Check Machine, two or three
years
prior to
the CSHO’s inspection,
Donghee ’s
maintenance manager at the time, an individual named Chris Kim, deliberately disabled the laser safety scanner on the machine.
( Tr. 53, 130-33, 300-04 ).
Kim disabled the safety scanne r
because
it was creating too many “false alarms” and hindering production on the machine.
( Tr. 133-34, 302-03 ).
In other words, the scanner was disabled to promote
production
efficiency on the machine.
(Tr. 303).
The deliberate disabling of the safety scanner on the ADA Pad Check Machine was performed in front of Wills, who succeeded Kim as the maintenance manager at
Donghee ’s
Auburn facility.
( Tr. 300-04 ).
Wills thus knew the safety scanner had been deliberately disabled.
However, h e did not reassess Kim’s decision to disable
the scanner ; instead ,
he
“put faith in the company’s decision” it was safe to run the ADA Pad Check Machine without it.
( Tr. 302 ).
Donghee
employees continued to operate the ADA Pad Check Machine despite it not having a functioning laser safety scanner .
( Tr. 209-10, 238-39, 262-64, 301 ).

Safety Culture at the Auburn Facility

Two
Donghee
employees testified at the hearing.
One
employee, who was currently working
as a quality control inspector
at the time of the hearing , was familiar with both the Helium Test and Pad Check Machines.
( Tr. 208-09 ).
She explained
Donghee ’s
managers knew the light curtains and laser safety scanners were not working prior to OSHA’s February 5 th
inspection ,
but workers were told to operate the machines anyway.
( Tr. 211-12 ).
She also observed the accident
involving
the ADA Pad Check Machine where
another
Donghee
employee injured his lip on the machine’s “stopper.”
See
note
.

The second employee worked
at
Donghee ’s
Auburn facility
for approximately five-and-a-half years, from 2015 to 2019 , and eventually
resigned
due to what she viewed as “mismanagement” of safety in the facility .
( Tr. 235-36 ).
The Court found this employee to be a forthright and credible witness on how safety was treated at
Donghee ’s
Auburn facility
and th erefore
will elaborate on her testimony in some detail .

At the start of OSHA’s investigation, this employee told the CSHO “telling managers [about issues with the machines,] it goes in one ear and out the other; it’s quicker to get with maintenance ourselves and get it fixed.”
( Exh . C-5, at 3).
For example, on the issue of non-functioning light curtains on the Helium
Test M achines, this employee detailed
Donghee
management’s
contradictory and
production-centric
response as follows:

[F] or instance, we had a machine that the light curtain was working on it, Michelle
[Blankenship ,
Donghee ’s
safety manager, ]
would specifically tell us do not go in
the light curtain, you know, do not go in the machine, don’t touch it, don’t open the door, just leave it alone, but then you would have
another supervisor or manager would say – you know, tell us to go ahead and go in it or move the machines, take it apart, whatever we have to do to get the engines going down the line.

(Tr. 237-38).

This same employee was assigned to operate the ADA Pad Check Machine, despite its laser safety scanner having been disabled by
Donghee ’s
maintenance manager.
( Tr. 238-39 ).
The employee knew the purpose of the safety scanner and felt unsafe operating the machine without it:
“Because if the light curtain or didn’t anything [sic] work, if you stick your hand or any body part in the machine, you can get hurt because if the light curtain wasn’t working, it wasn’t any kind of way to stop the machine, you know, if something went wrong.”
(Tr. 239).

This employee reported safety concerns
on the
subject
machines
to multiple managers and “if maintenance couldn’t fix [the issue], maybe it would start working for a little while and then it stopped, but if it stopped, we just kept working.
They just keep working because they didn’t want to hold up the line.”
(Tr. 241).
This employee described instances where
Donghee
employees
refused to work on a given machine because they though t
it was unsafe
and
a manager , referred to only as “Dav id ,” brought in a temp orary
worker from J&C to perform the task in their place.
(Tr. 240-44).
Indeed,
on at least one occasion,
t he same thing
happened to this employe e:
she refused to operate a Pad Check Machine because she thought it was unsafe ,
and “Dave” brought in a J&C worker to replace her .
(Tr. 243).

As noted above,
Donghee ’s
managers were generally aware the manufacturer-installed light curtains
on the Helium Test Machines
and laser safety scanners
on the Pad Check Machines
were either inoperative or only partially operative at the time of the CSHO’s inspection.
( Exh . C-6, at 6; Tr. 50-51,
89,
95-96, 116, 259-60, 270-71, 300-05 ).
The
CSHO interviewed seven managers during his investigation, each of whom acknowledged t he light curtains and laser safety scanners were inoperative at the time.
(Tr. 134, 141).
At the hearing, both
of
Donghee ’s
managers who testified, Blankenship and Wills, maintained this was not an issue
regarding
the ADA Pad Check Machin e ,
because the machin e was
not operated in a way
which
posed a hazard to employees.
( Tr. 262, 301 ).
Another manager, Cody Yates, who did not testify at the hearing, told the CSHO
when he
attempted to order
a replacement laser safety scanner for the LFA Pad Check Mac h ine , he was told there was no budget for it.
( Tr. 140-41 ).
Yet ,
the light curtains and laser safety scanners
on the
subject machines
were
all
made
operational by the time
the CSHO
returned to
Donghee ’s
Auburn facility on February 6, 2019,
one
day
after his initial inspection.
( Tr. 143-44 ).

Complaint, Inspection
&
Citation s

Sometime “[b] efore
February 5, 2019, OSHA received a complaint that
th [e] light curtains were inoperable on the TMA line helium test machine, UMA line pad check machine, and ADA line pad check machine”
at
Donghee’s
facility in Auburn.
( Exh . J-1 ¶
C( 6)).
As a result of this complaint, OSHA sent CSHO David Tisdale to inspect the Auburn facility and further investigate the complaint.
( Exh . J-1 ¶
C( 7); Tr. 35-37 ).
On several occasions, from February 5, 2019, to April 30, 2019, CSHO Tisdale inspected
Donghee ’s
facility, conducted interviews with employees and managers,
reviewed documents provided by
Donghee ,
an d inspected and
took photographs of the various machines.
( Exhs . J-1 ¶
C( 7); C-2, C-6, C-9, C-14, C-15; Tr. 38-41 ).

Following his inspection and investigation, the CSHO
concluded
Donghee
had violated 29 C.F.R. § 1910. 147(f)(1)(ii) on January 23, 20 19 ,
when Park was injured while not safely positioned in the energized Blow Mold Machine .
(Tr. 55-56).
The CSHO further concluded
Donghee
violated 29 C.F.R. § 1910.212(a)(1)
by
not having functional light curtain s
on
either
the TMA
or
UMA Helium Test Machines.
(Tr. 96-98).
Finally, the CSHO concluded
Donghee
had willfully violated 29 C.F.R. § 1910.212(a)(1) by not having operational laser safety scanners on either the ADA or LFA Pad Check Machines.
(Tr. 123).

OSHA ultimately issued the two-item serious Citation and one-item willful Citation giving rise to this proceeding.

THE CITATIONS

The Secretary’s Burden of Proof

In order to establish a violation of an occupational safety or health standard, the Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the employer's noncompliance with the standard ’ s terms, (c) employee access to the violative conditions, and (d) the employer's actual or constructive knowledge of the violation (i.e., the employer either knew, or with the exercise of reasonable diligence could have known, of the violative conditions).

Atl .
Battery Co., Inc ., No. 90-1747, 1994 WL 682922, at *6 (O . S . H . R . C .
Dec. 5, 1994).

Applicable Law

The employer or the Secretary may appeal a final decision and order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the D.C. Circuit.
See
29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Auburn, Alabama in the Eleventh Circuit. The parties have
not identified, and the record does not contain, any principal place of business
other
than Alabama
for
Donghee . Where it is highly probable that a case will be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case, even though it may differ from the Commission’s precedent.
Kerns Bros. Tree Serv ., No. 96-1719, 2000 WL 294514, at *4 (O . S . H . R . C .
March 16, 2000). Here, the parties
did not offer , and the Court has not found, relevant Eleventh Circuit precedent that differs from the Commission’s precedent
on any material issue raised in this case . 7
The Court therefore applies Commission precedent in this case.

Citation 1, Item 1:
Alleged Serious Violation of § 1910.147(f)(1)(ii)

The Alleged Violation Description

Citation 1, Item 1 alleges the following:

29 CFR 1910.147(f)(1)(ii):
Employees were not removed from the machine or equipment area in accordance with paragraph (e)(2) of this section during testing or positioning of machines, equipment, or components thereof:

a) Production Floor; On or about January 23,
2019,
an employee was exposed to struck-by and crush-by hazards in that the employee was allowed to be inside the Blow Mold Machine #1 production cell while it was in automatic operation. The employee was not safely positioned and was struck-by the machine.

The Cited Standard   

29 C.F.R. § 1910.147(f)(1)(ii) provides:

Testing or positioning of machines,
equipment
or components thereof. In situations in which lockout or tagout devices must be temporarily removed from the energy isolating device and the machine or equipment energized to test or position the machine,
equipment
or component thereof, the following sequence of actions shall be followed: …
(ii)  Remove employees from the machine or equipment area in accordance with paragraph (e)(2) of this section …

Section (e)(2), referenced in the cited standard, provides in relevant part as follows:

Release from lockout or tagout. Before lockout or tagout devices are removed and energy is restored to the machine or equipment, procedures shall be
followed
and actions taken by the authorized employee(s) to ensure the following:
(2)  Employees.
( i )  The work area shall be checked to ensure that all employees have been safely positioned or removed.

(1) The Applicability of the Cited Standard

Under Section
1910.147(a)(1)( i ) , 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 harm employees. This standard establishes minimum performance requirements for the control of such hazardous energy.”
Further, under Section 1910.147(a)(2), the
standard “applies to the control of energy during servicing and/or maintenance of machines and equipment” but not to normal production operations.

Section 1910.147(b) defines “servicing and/or maintenance” as “ [w] orkplace
activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment.”

Here, Park entered the Blow Mold Machine to
observe the machine in operation
so he could
address a quality issue with the gas tanks being produced by the machine.
( Exh . C-4;
Tr. 72-73).
His activities thus constituted “servicing and maintenance” under the standard.
See
AJM Packaging Corp. , No. 16-1865, 2022 WL 1102423, at *3 (O.S.H.R.C. Apr. 1, 2022) .
Moreover, as evidenced by Park’s
actual injury
in the Blow Mold Machine, the unexpected
startup
of the Blow Mold Machine had the potential
to
harm an employee
standing
inside the machine.
(Tr.
64, 69-71, 209, 348 ) ;
cf. also
Caterpillar, Inc. , 17 BNA OSHC 1584,
1585
(No. 93-2230, 1996) (relying on employee injuries to find a violation of the standard requiring LOTO training for all potential hazards) .
The
Court therefore finds the standard applied to Park’s activities in the Blow Mold Machine.

Donghee
argues the standard did not apply under the “minor servicing” exception contained in a note to the applica bility
of the standard. 8
However, by its own terms, th e minor servicing
exception only applies to “ activities
…
which take place during normal production operations.”
Note
to 29 C.F.R. § 1910.212(a).
Park’s activities were not normal production operations, but
servicing or
maintenance activities, as evidenced by his
express intention to address a performance issue with the machine and by his
use of the “Nonstandard
Work Safety Analysis” form
prior to entering the machine .
( Exh . C-4; Tr. 72-73).
Thus, th e minor servicing
exception
is not relevant to
this case.
Further ,
though , even if the exception w ere
relevant to Park’s activities in the Blow Mold Machine, there is nothing in the record to suggest Park’s activities were “routine,
repetitive, and integral to the use of the equipment for production,” as required by the exception.
( Tr. 73-75 ).
The Court
th erefore
rejects
Donghee ’s
invocation of the minor servicing exception, as it is inapplicable to the facts
of
this case.
See, e.g. ,
J.C. Watson Co. , 22 BNA OSHC 1235,
1240
(No. 05-0175, 2008) (rejecting the application of the exception
where the employer “failed to show any of these tasks were in fact minor adjustments” ) ,
aff’d
321 Fed
App’x
9 (D.C. Cir. 2009) .

(2) Compliance with the Standard’s Terms

Section 1910.147(f)(1)(ii), read together with Section 1910.147(e)(2), requires employees to be “ safely positioned or removed” when
a
“ machine or equipment [is] energized to test or position the machine, equipment or component thereof …”
Here, there is no dispute the Blow Mold Machine was energized at the time Park entered it
for the purpose of observing it while it cycled .
( Exh . C-4, at 1 ; Tr. 288, 347-48).
Park’s foot
was
broken
when it was struck by the moving shuttle on the machine.
( Exhs . C-2A & C-2B; Tr. 58-61, 67-69, 71-73).
T he Court
therefore
finds he was not “safely positioned” within the machine while testing it.
Donghee
makes
no contrary arguments
on this element of the Secretary’s case.

The Cour t
finds the Secretary has established noncompliance the standard.

(3) Employee Access to the Violative Condition

“Exposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.”
Phoenix Roofing , 17 BNA OSHC 1076, 1079 n.6 (No. 90-2148, 1995),
aff’d , 79 F.3d 1146 (5th Cir. 1996).
Here, Park was
actually exposed
to the hazard presented by the moving shuttle when he entered the Blow Mold Machine while it was still energized.
Donghee
has not challenged this element of the Secretary’s case.

The Court finds there was actual employee exposure.

(4) Employer Knowledge

To prove the knowledge element of a violation, the Secretary must demonstrate the employer’s actual knowledge or constructive knowledge of the violation.
Jacobs Field Servs., N.A. , 25 BNA OSHC 1216,
1218
(No. 10-2659, 2015);
see also
ComTran
Grp., Inc.
v. U.S.
Dep’t
of
Labor
,
722 F.3d 1304, 1307-08 (11th Cir. 2013).
A supervisor’s actual or constructive
knowledge
of a violation is imputed to
Donghee.
Quinlan v. Sec’y, U.S.
Dep’t
of Labor , 812 F.3d 832, 837 (11th Cir. 2016);
Dover Elevator Co. , 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

Here, Blankenship,
Donghee’s
safety manager,
expressly
authorized Park’s entry into the Blow Mold Machine when she signed the “Nonstandard Work Safety Analysis” form on January 23, 2019.
(Exhs. C-4 & R-5; Tr. 75-78,
80-81,
257, 272).
She thus had actual knowledge
of the
violation, knowledge which is imputed to
Donghee.
Quinlan , 812 F.3d at 837;
Dover Elevator Co. , 16 BNA OSHC at 1286.
Donghee
makes no argument to the contrary on this element of the Secretary’s case.

The
Court finds
Donghee
had actual knowledge of the violation.

Characterization of the Violation

The Secretary characterized the violation of § 1910.147(f)(1)(ii) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition]
…”
29 U.S.C. § 666(k).
“ This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.”
ConAgra Flour Milling Co. , 15 BNA OSHC 1817, 1824 (No. 88-2572, 1992).

Park’s foot was broken
when it
was struck by the
moving shuttle of the Blow
Mold
Machine.
( Exhs . C-2A & C-2B; Tr. 58-61, 67-69, 71-73).
This s uggests
any further bodily exposure to the moving shuttle could have caused
even
greater physical harm to an employee inside the machine.
See Montgomery Kone, Inc. , 18 BNA OSHC 2007,
2011
(No. 97-1133, 1999) (“ Although the injuries
actually suffered
may not have been as serious as they could have been, there clearly was a substantial probability that serious injury could result …. We therefore find that this violation was serious.”) ,
aff’d
234 F.3d 270 (D.C. Cir. 2000) .
Donghee
has not challenged the classification of this violation as serious.

The Court finds the violation was
properly characterized as serious.

Unpreventable Employee Misconduct Defense

Donghee
briefly invokes the “unpreventable employee misconduct defense”
with regard to
the violation of 29 C.F.R. § 1910.147(f)(1)(ii).
“ In order to establish that affirmative defense, the employer must show: (1) that it has established work rules designed to prevent the violation, (2) that it has adequately communicated these rules to its employees, (3) that it has taken steps calculated to discover whether violations are occurring, and (4) that it has effectively enforced the rules when violations are discovered.”
George Campbell Painting Corp. , 18 BNA OSHC 1929,
1933
n.15 (No. 94-3121, 1999).
Donghee
bears the burden of establishing each element by a preponderance of the evidence.
See
ComTran , 722 F.3d at 1314 (respondents before the Commission bear the burden of proof for affirmative defenses);
Marson Corp. , 10 BNA OSHC 1660, 1662 (No. 78-3491, 1982) (burden of proof for unavoidable employee misconduct defense lies with the employer).

Donghee’s
briefing of
its
defense is anemic, at best.
Its sole citation
to
the record
in support of the elements of the defense
is
to
Exhibit R-2,
Donghee’s
LOTO Instruction Manual. 9

Resp’t’s
Br. 22-23.
Donghee
has not directed the Court to any
particular page
of this
Manual, although the Court notes in two places in this document the following sentence has been highlighted:
“No one may enter equipment, shells or machinery during automatic mode[.]”
(Exh. R-2, at 3 & 9).
The remainder of its “support” for this defense is contained in a
single
footnote citing to a treatise which merely reiterates the elements of the defense.
Id.
at
22
n.156.
On these grounds alone, the Court finds
Donghee
has
waived any reliance on its
unpreventable employee misconduct
defense.
See, e.g. ,
NLR B
v. McClain of Ga., Inc. , 138 F.3d 1418, 1422 (11th Cir. 1998) (“ Issues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived.”).

Were the Court to reach the merits of the defense, it would still reject it.
There
is some
evidence
in the record to establish
Donghee
had a work rule
(element 1)
and
enforced this rule by
disciplin ing
Park following his accident
(element 4). ( Exhs . R-2 to R-4).
However,
there is a dearth of evidence establishing adequate communication and training of Park or establishing what, if any, steps
Donghee
took to discover violations of its work rule (elements 2 and 3).
Donghee
has, therefore, failed to fulfill its burden of establishing the affirmative defense of un preventable
employee misconduct.

The Court finds the Secretary has established all elements of his burden of proof.
Donghee
has failed to establish its affirmative defense.
Therefore,
Citation 1, Item 1
is
AFFIRMED
as
a
serious violation.

Citation
1 , Item
2 :
Alleged Serious Violations of § 1910.212(a)(1)

The Alleged Violation Description

Citation 1, Item 2 alleges two instances of a serious violation of the cited standard as follows:

29 CFR 1910.212(a)(1):
One or more methods of machine guarding was not provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks:

a) TMA Line; On or about February 5,
2019,
and at time prior thereto, the employer exposed employees to caught-in and crushed-by hazards in that employees were required to operate the TMA Line Helium Test Machine with non-functioning light
curtains which when working would prevent employees from placing their bodies inside the danger zone during the operating cycle.

b) UMA Line; On or about February 5,
2019,
and at time prior thereto, the employer exposed employees to caught-in and crushed-by hazards in that employees were required to operate the UMA Line Helium Test Machine with non-functioning light curtains which when working would prevent employees from placing their bodies inside the danger zone during the operating cycle.

The Cited Standard   

29 C.F.R. § 1910.212(a)(1) provides:

Machine guarding — ( 1)  Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.

(1) The Applicability of the Cited Standard

Section 1910.212(a)(1) is found in
Subpart O—Machinery and Machine Guarding .
Section 1910.212
is captioned “General requirements for all machines.” The standard applies to all machines not covered by a more specific standard.
See Buffets, Inc. , 21 BNA OSHC 1065,
1066
n.3 (No. 03-2097, 2005).
Neither party has identified a more specific standard or argues against the applicability of
Section 1910.212 to the Helium Test Machines.
The Court, therefore, finds the standard applies.

(2) Compliance with the Standard’s Terms

Section 1910.212(a)(1) is “ performance standard, which means “it states the result required ...
rather than specifying that a particular type of guard must be used.”
Aerospace Testing All . , No. 16-1167, 2020 WL 5815499, at *2 (O.S.H.R.C. Sept. 21, 2020).
“Performance standards require an employer to identify the hazards peculiar to its own workplace and determine the steps necessary to abate them.”
Id.

To establish noncompliance with Section 1910.212(a)(1), the Secretary must establish exposure to a hazard based on “the manner in which the machine functions and how it is operated by the employees …”
Id.
To establish exposure to
a
hazard, the Secretary must show “that it is reasonably predictable either  by operational necessity or otherwise (including inadvertence) , that employees have been, are, or will be in the zone of danger.”
Id.

Regarding
the TMA Helium Test Machine, there are pinch points between the moving metal tray and the adjacent metal surface of the machine.
( Exhs . C-8, R-12B; Tr. 109-11, 296-98 ).
The manual for the machine acknowledges the existence of these pinch points.
( Tr. 296-98 ).
Additionally, the r ising
and lowering of the metal tray
into and out of the testing chamber
exposes an employee underneath the tray to a crush-by hazard, with the tray exerting approximately 87 pounds of pressure
during this process .
( Exhs . C-8, R-12B; Tr. 89-92, 109 ).
As part of the operation of the machine,
Donghee
employees are required to enter the “zone of danger” when putting a
gas tank onto the tray or removing the tank once it has been tested.
( Exh . C-7, at 00:00 to 00:13; Tr. 37, 109-10, 122, 181 ).
Indeed, employees do this approximately 300 times a shift, two shifts a day.
( Exh . J-1 ¶
C( 10) ).
The Secretary has proven employees are exposed to a hazard when operating the TMA Helium Test Machine.

The Secretary likewise
has
proven exposure to a hazard during the operation of the UMA Helium Test Machine.
Regarding
this machine, there are pinch points on the side of and in front of the machine as the drawer slides in and out of the testing chamber, applying 125 pounds of pressure in the process.
( Exhs . C-6, at 3, 4, 6; Tr. 100-07, 111-13, 260-61 ).
These pinch points are clearly marked by stickers on the machine. 10
( Exh . C-6, at 3-5 ).
Donghee
employees must enter the “zone of danger” to place a tank into the drawer for testing, attach hoses to the tank,
detach the hoses once the tank has been tested,
and remove the tank from the dra wer .
( Exh . R-14, at 00:12 to 00:37, 02:32 to 02:44 ).
Again, employees do this 300 times a shift, two shifts a day.
( Exh . J-1 ¶   C( 11) ).

Donghee
attempts to obfuscate th e
rather
straightforward
existence of the
hazards posed when operating the Helium Test Machines
by pointing
to
the
method
by which
employees
are
instructed to operate the machines .
It
argue s, essentially, if employees follow a particular method when operating the machines, they w ill
never be in the zone of danger while the machine
is
cycling.
Resp’t’s
Br. 18-20.

More
specifically , f or the TMA
Helium Test Machine ,
Donghee
describes
how, ideally, employees
are
to operate the machine
first by loading the tank onto the metal tray, only then
starting the machine,
moving
some distance away
from the machine
while
it
cycles, and only approaching the machine once the metal tray
has
fully lowered.
Id.
at
18.
If an employee operate s
the machine in this manner,
Donghee
argues ,
“no employee has any duties in front of the machine while it is moving .”
Id.
at
18.
Thus,
Donghee
continues, an employee operating the machine is out of the zone of danger while the machine is cycling.
Id.

For the UMA
Helium Test Machine ,
Donghee
again lays out the ideal operation of the machine
where an employee would load the tank into the drawer, attach the hoses, start the machine, and step away from the drawer while the machine cycled .
Resp’t’s
Br. 20.
Donghee
again
argues “[e] mployees
have no reason to be in front of the drawer as it is opening and reaching [its] pinch point …”
Id.
at 20.
Again,
Donghee
contends employee s are
thus
out of the zone of danger while the machine is cycling.
Id.

The
Court rejects
Donghee ’s
attempt to reframe its employees ’
exposure to crush and pinch points when the Helium Test Machines are cycling .
There
is no physical
barrier
at all
between
the active Helium Test Machines and the employees operating them.
Indeed, an employee has unfettered access to the zone of danger while the machines are cycling .
And when the light curtains are inoperative or only partially operative, as they were at the time of the CSHO’s inspection, there is nothing to prevent an employee from entering the zone of danger on the machines when they are cycling and getting caught in the crush and pinch points.

In such cases,
where “no physical guard
[is]
in place at all,”
the Commission has consistently
held employers “ cannot rely on employee behavior for safety” due to the “possibility that an employee could put a finger or hand in the unguarded point of operation due to fatigue or inattention.”
Aerospace Testing All. , 2020 WL 5815499, at *5 n.4 ;
see also
B.C. Crocker , 4 BNA OSHC 1775,
1777
(No. 4387, 1976) ( “The [machine guarding]
requirement implicitly recognizes that human characteristics such as skill, intelligence, carelessness, and fatigue, along with many other qualities play a part in an individual ’ s job performance, and it avoids dependence on human conduct for safety.”) .
The machine guarding standards “ require[ ] the employer to do more than merely establishing rules which, if followed, would render the work safe.”
Gen. Elec. Co. , 10
BNA OSHC
1687 ,
1690
( No. 77-4476 , 1982). 11
In other words,
Donghee
is simply not entitled to rely
on its employees following certain
practices
or standing a certain distance from the machines as a means of protecting them from the crush and pinch points present when the machines are cycling.
See
Packers Sanitation Servs., Inc. v. Occupational Safety & Health Rev. Comm ’ n , 795 F.
App ’ x
814, 820 (11th Cir. 2020) (finding substantial evidence of exposure to a nip point where “[t]here was no external line or barrier marking a two-foot distance from the machine—the safe distance that Packers identified. Nor was there a hard physical barrier preventing the employee from accessing the nip point.”);
George C. Christopher & Sons, Inc. , 10
BNA OSHC
at 1444
(use of “awareness barriers” was inadequate under machine guarding standards
because they “ depend[ed] upon employee behavior for protection” ).

Further,
although
Donghee
had placed tape on the ground to mark the “safe” distance from the active Helium Test Machines and instructed some employees to stand behind the tape while the machine cycled,
many employees did not
even
know what the tape
represented
or “forgot” to stand behind it.
( Tr. 116- 18 , 122, Tisdale Dep. 73, 80, 93 ).
Thus, even if
Donghee
could rely on its employees following certain practices instead of having a physical guard or
operational light curtains
on the Helium Test Machines ,
Donghee
did not adequately instruct
all of
its employees.

Finally,
Donghee
points to a lack of
recordable
injuries
on either of the Helium Test Machines .
However,
“ [t]he absence of a history of injury does not relieve an employer of his duty under the standards to prevent future injuries if, as here, there are hazards to which employees are exposed.”
George C. Christopher & Sons, Inc. ,
10 BNA OSHC at
1444 ;
see also
Buffets, Inc. , 21
BNA OSHC
at 1067
( No. 03-2097 , 2005) (lack of injury
relevant but
“not dispositive” on the issue of employee exposure to a hazard requiring guarding).

The Secretary has demonstrated the existence of a hazard requiring guarding on
both Helium Test
Machines. As it is undisputed the
light curtain
were not
fully
operational on
either machine ,
and
Donghee
has not asserted it guarded the machines in any other way, the Secretary has demonstrated noncompliance with the standard.

(3) Employee Access to the Violative Condition

“ Exposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.”
Phoenix Roofing , 17 BNA OSHC
at
1079
n.6.
The Commission has recognized “ the noncompliance element in machine guarding cases overlaps with … but is not identical to, the exposure element of the Secretary ’ s prima facie case.”
Wayne Farms, LLC. ,
No. 17-1174,
2020
WL 5815506, at *3 n.2
(O.S.H.R.C.,
Sept. 22, 2020).
Here, the Court finds
exposure to the machines’ pinch and crush points
was “reasonably predictable” based on the
regular
operation of the machines.

Employees operating the Helium Test Machines regularly had to put themselves near the moveable parts of the machines to slide a gas tank onto the metal tray (in the case of the TMA Line) or into the drawer (in the case of the UMA Line).
( Exhs . C-6, at 3 & 4; C-7, at 00:00 to 00:13; R-14, at 00:12 to 00:26 ;
Tr. 37, 100-01, 107, 109-10, 122).
Employees on the UMA
Helium Test Machine
had to reach into the moveable drawer to attach the hoses to the tanks.
( Exh . R-14, at 00:26 to 00:37; Tr. 37, 107, 109-10, 261-62 ).
Thus, for both machines, employees had to reach at or near crush and pinch points 300 times a shift to operate the machines.
( Exh . J-1 ¶¶
C( 10) & (11)).

As to the TMA
Helium Test Machine ,
Donghee
argues “the machine’s operation simply does not bring employees near pinch points.”
Resp’t’s
Br.
19.
Donghee
goes on to argue the crush-by hazard posed by the moving metal plate is “8-feet in the air” and the pinch point hazard of the plate is “2-3 feet away” because “the employee is standing outside a box, 2-3 feet away.”
This line of argument ignores the entirety of the operational process, which at some point requires the operator of the TMA
Helium Test Machine
to approach the machine and reach at or near the pinch points to move the gas tank from the metal plate and load a new one on for testing.
Approaching the machine, which is energized and capable of movement, puts employees in the “zone of danger” of the moving parts of the machine.
Cf. Dover High Perf .
Plastics, Inc. ,
No. 14-1268, 2020 WL 5880242, at *3
( O.S.H.R.C.,
Sept. 25, 202 0 ) (“Thus, the question before us is whether the Secretary has established that it was reasonably predictable Dover ’s
operators would come sufficiently close to the moving parts inside the lathes and mills so as to be exposed to the cited hazard.”).

The cases cited by
Donghee ,
Aerospace
Testing All. ,
2020 WL 5815499 ,
and
Jefferson Smurfit
Corp. , 15 BNA OSHC 1419 (No. 89-0553, 1991),
do not lead to a different conclusion
regarding
the TMA Helium Test Machine .

In
Aerospace
Testing All. ,
the Commission found access to a hazard was not reasonably predictable where the operator intentionally circumvented a pre-existing guard on the machine and
thereby
injured himself.
2020 WL 5815499, at 1 .
In
finding access was not reasonably predictable , the Commission noted only one operator, the operator who was injured, testified
that
circumventing the guard
constituted
regular use of the machine.
Id.
at 2.
The Commission
went on to explicitly discredit
the injured employee’s testimony that intentionally circumventing the guard was a regular practice.
Id .
Here, there is no dispute as to how the TMA Helium Test Machine is regularly operated.
Video evidence of its operation was submitted at the hearing, and neither part y
argue s
this video
represents anything other than the normal operation of the machine.
The video evidence demonstrates
normal operation of the
TMA
Helium Test Machine requires employees to approach the
energized machine
and reach toward the metal tray to move gas tanks to and from the tray .
( Exh . C-7, at 00:00 to 00:13; Tr. 37, 109-10, 122).
They
are th erefore
in the zone of danger for the crush and pinch points
on the machine .

In
Jefferson
Smurfit
Corp. , the Commission found the operators of the machines in question
never
had occasion to be any closer
than two feet
to the machine’s nip points.
15 BNA OSHC at
14 21- 22 .
The operators observed the machines from
a distance of approximately
two feet and adjusted the machines “ using crank handles located and designed to keep their hands no closer than 2 feet from the nip points.”
Id.
at
1422 .
Again,
unlike
Jefferson Smurfit ,
the evidence here shows employees regularly had to approach the energized TMA Helium Test Machine during normal operations to move the gas tanks to and from the metal tray.
( Exh . C-7, at 00:00 to 00:13; Tr. 37, 109-10, 122).

Donghee
argues similarly for the UMA Helium Test Machine and again cite s
Aerospace
Testing All.
in support of its argument .
Resp’t’s
Br. 19-20 .
The Court again rejects
Donghee ’s
arguments and reliance on
Aerospace .
Regular use of the machine, which
again,
unlike in
Aerospace ,
is undisputed and documented by video evidence ,
requires employees to approach the machine and reach their hands into the metal drawer to move the gas tank and connect hoses to them.
( Exh . R-14, at 00:26 to 00:37; Tr. 37, 107, 109-10, 261-62).
Employees
again must reach
into the drawer after the tank has been tested to disconnect the hoses.
( Exh . R-14, at 02:32 to 02:44; Tr. 108, 261-62).
Operation of the UMA Helium Test Machine
puts the se employees
in the zone of danger of the pinch points
around
the drawer.

The Secretary has proven exposure to the hazard was reasonably predictable for both Helium Test Machines.

(4) Employer Knowledge

To prove the knowledge element of a violation, the Secretary must demonstrate the employer’s actual knowledge or constructive knowledge of the violation.
Jacobs Field Servs., N.A. , 25 BNA OSHC at 1218;
see also
ComTran
Grp., Inc. , 722 F.3d at 1307-08.
A supervisor’s actual or constructive of a violation is imputed to
Donghee.
Quinlan , 812 F.3d at 837 (11th Cir. 2016);
Dover Elevator Co. , 16 BNA OSHC at 1218.

Here, the CSHO interviewed as many as seven of
Donghee’s
managers during his inspection, and all of them knew the light curtains on the Helium Test Machines were
partially or fully
inoperative
at the time of his inspection and had
been inoperative
for at least several months.
(Tr. 50-51, 116).
The managers’ actual knowledge is imputed to
Donghee.
Quinlan v. Sec’y, U.S.
Dep’t
of Labor , 812 F.3d at 837;
Dover Elevator Co. , 16 BNA OSHC at 1218.

In its brief,
Donghee
argues
the Secretary has failed to establish “employer foreseeability” because “the light curtains not functioning is not relevant absent foreseeable
need .”
Resp’t
Br. 19 (emphasis in original).
As
the Court concluded above, however, the Secretary demonstrated the existence of a hazard for which guarding was necessary under the standard.
Moreover, in the Eleventh Circuit, a foreseeability analysis only becomes relevant if the Secretary is attempting to establish the knowledge element of a violation based on a supervisor’s own misconduct.
Quinlan v. Sec’y, U.S.
Dep’t
of Labor , 812 F.3d at 841-42.
Here, the managers’ actual knowledge is of “the conditions constituting the violation,”
i.e.,
the need for guarding against potential hazards
for employees
operating the Helium Test Machines, not of their own misconduct in committing a violation.
Jacobs Field Servs., N.A. , 25 BNA OSHC at 1218.
The issue of foreseeability is thus inapposite
to this case.

The Secretary has established
Donghee
had actual knowledge of the violative condition.

The Court finds the Secretary has established all elements of his burden of proof. Therefore,
both instances of Item 2 are
AFFIRMED.

Characterization of the Violation

The Secretary characterized the violation of § 1910.212(a)(1)
as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition]
…”
29 U.S.C. § 666(k).
“ This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but,
rather, that a serious injury is the likely result if an accident does occur.”
ConAgra Flour Milling Co. , 15 BNA OSHC
at
1824.

The Court finds the violations were properly classified as serious given an employee’s hand or finger could be crushed or pinched in either of the Helium Test Machines
while the machines are
cycling.
Moreover, the
raising and
lowering of the tray on the TMA
Helium Test Machine
and the opening
and closing
of the drawer on the UMA
machine
occur automatically.
(Exhs. C-6, at 4; R-14, at 02:24 to 02:32; Tr. 103, 117, 122, 180;
see also
note
,
supra
(finding the table on the TMA Helium Test Machine lowers automatically after the machine completes testing)).
With inoperative or partially operative light curtains on the machines, there would be nothing to stop the crushing or pinching of an employee’s appendage caught in the machines.
Donghee
makes no contrary argument as to the classifications for these violations.

The Secretary has properly characterized the violations as serious.

Citation
2 , Item
1 :
Alleged Willful Violation of § 1910.212(a)(1)

The Alleged Violation Description

Citation 2, Item 1 alleges two instances of a willful violation of the cited standard as follows:

29 CFR 1910.212(a)(1):
One or more methods of machine guarding was not provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks:

a) ADA Line; On or about February 5, 2019 ,
and at time prior thereto, the employer exposed employees to caught-in and crushed-by hazards in that employees were required to operate the ADA Line Pad Check Machine with non-functioning l aser safety scanner
which when working would prevent employees from placing their bodies inside the danger zone during the operating cycle.

b)
LFA Line; On or about February 5, 2019 ,
and at time prior thereto, the employer exposed employees to caught-in and crushed-by hazards in that employees were required to operate the LFA Line Pad Check Machine with non-functioning laser safety scanner which when working would prevent employees from placing their bodies inside the danger zone during the operating cycle.

The Cited Standard   

29 C.F.R. § 1910.212(a)(1) provides:

Machine guarding — ( 1)  Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.

(1) Applicability of the Cited Standard

Section 1910.212(a)(1) is found in
Subpart O—Machinery and Machine Guarding .
Section 1910.212
is captioned “General requirements for all machines.” The standard applies to all machines not covered by a more specific standard.
See Buffets, Inc. , 21 BNA OSHC at
1066
n.3.
Neither party has identified a more specific standard or argues against the applicability of Section 1910.212 to the Pad Check Machines.
The Court, therefore, finds the standard applies.

(2) Compliance with the Standard’s Terms

To establish noncompliance with Section 1910.212(a)(1), the Secretary must establish exposure to a hazard based on “the manner in which the machine functions and how it is operated by the employees …”
Aerospace Testing All. , 2020 WL 5815499, at * 2.
To establish exposure to
a
hazard, the Secretary must show “that it is reasonably predictable either  by operational necessity or otherwise (including inadvertence) , that employees have been, are, or will be in the zone of danger.”
Id.

As it did with the Helium Test Machines,
Donghee
argues there was no hazard present in operating the Pad Check Machines
which
require d
guarding.
Resp’t’s
Br. 11-13.
The Court
again
disagrees.
As can be seen in the videos
of the operation of the machine ,
nothing prevents
employees operating
a
Pad Check Machine
from being
mere inches from the
machine ’ s
lowering metal arm
and the half-inch-thick aluminum plate attached to
it .
( Exhs . C-10, at 00:00 to 20; R-9, at 00:00 to 00:17; Tr. 124, 138, 162, 225-26; Tisdale Dep. 48-49, 51 ).
Donghee
points out the CSHO “did not even measure arm force or speed, and had no proof of actual or potential bone, skin, banana, or pencil injury to dispute what
Donghee
had.”
Resp’t’s
Br. 11.
However, the CSHO personally observed the machines during his inspection and perceived the plate to be heavy enough to
injure
an employee who might be caught in the up-and-down motion of the metal arms of the machines. 12
( Tr. 125 ).
A
Donghee
employee who regularly operated the Pad Check Machines had the same perception of the hazard caused by the lifting and lowering of the metal plate.
( Tr. 238-39 ).
The Court finds this evidence sufficient to establish
a
hazard associated with operating the
Pad Check Machines
without proper guarding .
See, e.g. ,
U.S. v.
Jayyousi , 657 F.3d 1085, 1102-03 (11th Cir. 2011) (lay witnesses may offer opinion testimony based on their personal perceptions and knowledge).

Donghee
again points to the
manner in which
employees were meant to operate the machine , i.e.,
approximately
two feet away while it cycled.
Resp’t’s
Br. 13.
However, as the Court
previously
noted
regarding
the Helium Test Machines,
where “no physical guard
[is]
in place at all,” the Commission has consistently held employers “ cannot rely on employee behavior for safety” due to the “possibility that an employee could put a finger or hand in the unguarded point of operation due to fatigue or inattention.”
Aerospace Testing All. , 2020 WL 5815499, at *5 n.4 .
Thus, even if
Donghee ’s
employees were instructed to remain two feet from the Pad Check Machines when they cycled, this work rule alone was inadequate to comply with the standard.
Gen. Elec. Co. , 10 BNA OSHC
at
1690 .

Donghee
points out the
“machine lowered the metal plate with
[springs]
capable of producing three pounds of force onto the middle of a plastic gas tank.”
Id.
at 12-13.
As evidence the three-pound springs do not pose a hazard to the operator
of
the machine,
Donghee
points to its videos wherein a banana and a pencil are placed between the pad on the tank and
springs attached to the metal plate on the arm of the machine .
( Exhs . R-10A & R-10B) .
After the machine lowers and presses on the tank, o nly a slight indentation is made on the banana’s skin
( Exh . R-10A, at 00:34 to 00:36);
the pencil emerges seemingly unharmed after the Pad Check Machine is finished cycling.
( R-10B, at 00:15 to 00:18 ).

The Court does not find these unscientific videos persuasive as to the possible hazards associated with the Pad Check Machines.
Indeed, as the CSHO explained in detail at the hearing, the three-pound rated springs on the machines do not only exert three pounds of pressure; rather, once the pressure on the springs reaches three pounds the machine is designed to interpret that pressure
to mean a pad has been attached to that location on the gas tank .
( Tr. 320-21, 387-88, 390-91 ).
Moreover, as the Secretary rightly points out,
these videos “only address the effect of contact with the plungers at the bottom of each metal plate.
Neither video purports to demonstrate the effect of contact with the plate itself, because neither the banana nor the pencil ever
make contact with
the swinging plate.”
Sec’y’s Br. 20.

Donghee
also
cites
Wayne Farm s, LLC , No. 17-1174, 2020 WL 5815506 (O.S.H.R.C. Sept. 22, 2020),
and argues it supports its theory
there was no hazard present when
Donghee
employees
operat ed
the Pad Check Machines.
Resp’t’s
Br. 12.
Wayne Farms
is
readily
distinguishable
from the instant case .
In
Wayne Farms , an employee was injured when manually cleaning a machine.
2020 WL 5815506, at 1 .
The question before the Commission was whether the manual cleaning of the machine was part of its “normal operation.”
Id.
at 3 .
The Commission found
manual cleaning
was
not part of the normal operation of the machine
based on the inconsistent testimony of the injured employee.
Id .
Since manually cleaning the machine was not part of the machine’s normal operation, the Commission found the Secretary failed to demonstrate the presence of a hazard requiring guarding.
Id.
at *5 .
Here, unlike in
Wayne Farms , normal operation of the machine, which is documented by video evidence, requires
Donghee
employees to come within inches of the moveable arm and metal plate of the Pad Check Machines, the hazard the Secretary has cited.
( Exhs . C-10, at 00:00 to 00:06; R-9, at 00:03 to 00:10; Tr. 124, 138, 162, 225-26; Tisdale Dep. 48-49, 51).

Finally,
Donghee
again points to a lack of recordable injuries or “close calls” involving the Pad Check Machines.
Resp’t’s
Br. 13.
However, “ [t]he absence of a history of injury does not relieve an employer of his duty under the standards to prevent future injuries if, as here, there are hazards to which employees are exposed.”
George C. Christopher & Sons, Inc. , 10 BNA OSHC at
1444 ;
see also
Buffets, Inc. , 21 BNA OSHC
at
1067
(lack of injury relevant but “not dispositive” on the issue of employee exposure to a hazard requiring guarding).

The Secretary has demonstrated the existence of a hazard requiring guarding on the Pad Check Machines.
As it is undisputed the laser safety scanners were not operational on the Pad Check Machines, and
Donghee
has not asserted it guarded the machines in any other way, the Secretary has demonstrated noncompliance with the standard.

(3) Employee Access to the Violative Condition

“ Exposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable.”
Phoenix Roofing , 17 BNA OSHC 1076, 1079 n.6.
The Commission has recognized “ the noncompliance element in machine guarding cases overlaps with … but is not identical to, the exposure element of the Secretary's prima facie case.”
Wayne Farms, LLC. , No. 17-1174, 2020 WL 5815506, at *3 n.2 (O.S.H.R.C., Sept. 22, 2020).
As
The
Court finds
exposure to the Pad Check Machines’ rising and lowering arm was
“reasonably predictable” based on the regular operation of the machines.

To load
and unload
the gas tanks onto the machine, employees had to come within inches of the moveable arm s
and metal plate s
on the
energized
Pad Check Machines.
( Exhs . C-10, at 00:00 to 00:20; R-9, at 00:00 to 00:17; Tr. 124, 138, 162, 225-26; Tisdale Dep. 48-49, 51 ).
The employees operating the machines were required to do so 300 times a shift, two shifts a day.
( Exh . J-1 ¶¶   C( 8) & (9); Tisdale Dep. 66 ).
Thus,
Donghee ’s
employees were exposed to a hazard on the Pad Check Machines.

Resisting this straightforward conclusion,
Donghee
argues
“[n]o employee for any reason had to lean across the table into the machine” while it was cycling.
Resp’t’s
Br. 13.
However, as with the noncompliance element of the violation,
Donghee
is not entitled to rely on work rules alone to protect its employees .
See
Gen. Elec. Co. , 10 BNA OSHC
at
1690 .
T he Commission regularly notes the possibility of inadvertence or fatigue as a basis for finding exposure to a hazard in the context of machine guarding.
Aerospace Testing All. , 2020 WL 5815499, at *5 n.4
(citing cases) .

Donghee
also points to the incident with the employee injured by the stopper on the ADA Pad Check Machine and argues
an operational laser safety scanner
would not have prevented this “unforeseeable” injury. 13
Resp’t’s
Br. 14;
see also
note
,
supra .
However, the Court does not base its finding of
employee
exposure to a hazard while operating the Pad Check Machines on this lone incident
involving the machine’s stopper ,
but rather
on
the more readily identified hazard of the moving arm and plate on the machine, to which employees operating the machine were exposed 300 times a shift, two
shifts
a day.
( Exh . J-1 ¶¶
C( 8) & (9); Tisdale Dep. 66).

The Secretary has established employee exposure to a hazard while operating the Pad Check Machines.

(4) Employer Knowledge

To prove the knowledge element of a violation, the Secretary must demonstrate the employer’s actual knowledge or constructive knowledge of the violation.
Jacobs Field Servs., N.A. , 25 BNA OSHC at 1218;
see also
ComTran
Grp., Inc. , 722 F.3d at 1307-08.
A supervisor’s
actual or constructive of a violation is imputed to
Donghee.
Quinlan , 812 F.3d at 837 (11th Cir. 2016);
Dover Elevator Co. , 16 BNA OSHC at 1218.

Here, the CSHO interviewed Yates, one of
Donghee’s
managers, who informed him the LFA Pad Check Machine’s laser safety scanner was not functioning at the time of the inspection
and had not been functioning for several months.
(Tr. 51).
Wills,
Donghee’s
maintenance manager, knew the ADA Pad
Pad
Check Machine’s laser safety scanner was not functioning, and indeed was present when it was deliberately disabled two or three years before the inspection.
(Tr. 300-05).
Donghee’s
managers’ actual knowledge of the violative condition is imputed to
it.
Quinlan , 812 F.3d at 837 (11th Cir. 2016);
Dover Elevator Co. , 16 BNA OSHC at 1218.

As it did with the Helium Test Machines,
Donghee
again asserts the lack of a hazard posed by the unguarded Pad Check Machines and further argues there was a lack of “ foreseeable
harm”
in operating the Pad Check Machines without proper guarding.
Resp’t’s
Br. 15 (emphasis in original).
The Court again rejects these arguments.
As to the former
argument, the Secretary has again established a hazard associated with employees operating the unguarded Pad Check Machines
and thus the need for guarding.
As to the latter
argument,
foreseeability is not implicated in this case where the issue is whether
Donghee’s
managers had actual knowledge of the violative condition.
Quinlan , 812 F.3d at 841-42;
Jacobs Field Servs., N.A. , 25 BNA OSHC at 1218.

The Secretary has established
Donghee
had actual knowledge of the violative condition.

The Court finds the Secretary has established all elements of his burden of proof. 14
Therefore, Item 2 is
AFFIRMED.

Characterization of the Violation

The Secretary characterized
both instances of this violation
of Section 1910.212(a)(1)
as willful.
“A violation is willful if the employer ’ s state of mind at the time of the violation reflects either: (1) an intentional, knowing, or voluntary disregard for the requirements of the Act or employee safety; or (2) “plain indifference” to either the cited OSHA requirements or employee safety.”
Home Rubber Co., LP , No. 17-0138, 2021 WL 3929735, at 2 (O.S.H.R.C., Aug. 26,
2021) ;
see also Fluor v. Occupational Safety & Health Review Comm’n , 295 F.3d 1232, 1239-40 (11th Cir. 2002) (reciting
a similar
formulation for willfulness ).
“ The Secretary can establish intentional disregard by showing that the employer (1) had a heightened awareness of the applicable standard ... and (2) consciously disregarded the standard.”
Home Rubber Co., LP , 2021 WL 3929735, at 2 .
“In other words, the Secretary can establish intentional disregard by showing that the employer was actually aware, at the time of the violative act, that the act was unlawful ....”
Id.
“Alternatively, the Secretary can prove plain indifference by showing that the employer possessed a state of mind such that if it were informed of the standard, it would not care.”
Id.

The Secretary has alleged two instances of a willful violation of
the machine guarding standard, one implicating the
ADA
Pad Check Machine (Instance (a)) and one implicating the
LFA
Pad Check Machine (Instance (b)).
Because the evidence
offered
for each instance is materially different, the Court reaches different conclusions on whether
Donghee’s
violation
in
each instance was willful.

Instance (a) – the ADA Pad Check Machine

Regarding
Instance (a), involving the ADA Pad Check Machine, the Court finds there is sufficient evidence of
Donghee’s
plain indifference to employee safety.
Three years prior to OSHA’s inspection,
Donghee’s
maintenance manager, Mr. Kim, deliberately disabled the laser safety scanner on this machine.
(Tr. 53, 130-33, 300-04).
This was done explicitly to increase productivity on the machine because of the number of “false stops” when the safety scanner was active.
(Tr. 133-34, 302-03).
Donghee’s
managers continued to run the machine for years without an operational laser safety scanner.
(Tr. 209-10, 328-39, 262-64, 301).
When Wills took over as maintenance manager, he did not reassess whether the disabling of the safety scanner posed a safety issue to employees but
“put faith in the company’s decision.”
(Tr. 302).
At least one employee, who testified at the hearing, brought her safety concerns to management
when operating the ADA Pad Check Machine.
(Tr. 238-39, 243).
Rather than address those concerns, a manager named “David” simply reassigned a temporary
employee
to operate the machine.
(Tr. 243).
Such actions occurred on multiple occasions when
Donghee
employees expressed concerns about operating the machine.
(Tr. 240-44).

As a backdrop to
all of
Donghee’s
actions concerning the ADA Pad Check Machine
specifically,
Donghee
often prioritized production over safety.
One former employee went into some detail as follows:

[F]or instance, we had a machine that the light curtain was working on it, Michelle [Blankenship,
Donghee ’s
safety manager,] would specifically tell us do not go in the light curtain, you know, do not go in the machine, don’t touch it, don’t open the door, just leave it alone, but then you would have another supervisor or manager would say – you know, tell us to go ahead and go in it or move the machines, take it apart, whatever we have to do to get the engines going down the line.

(Tr. 237-38) .
This same employee told the CSHO “telling managers [about issues with the machines,] it
g oes in one ear and out the other; it’s quicker to get with maintenance ourselves and get it fixed.” ( Exh . C-5, at 3).

Considering
all of
these circumstances, the Court concludes
Donghee’s
violation was willful as to Instance (a).
See
E.
Smalis
Painting Co. , 22 BNA OSHC 1553,
1577
(No. 94-1479, 2009) (finding a violation willful where employer put “emphasis on productivity over employee safety”);
Worldwide Mfg., Inc. , 19 BNA OSHC 1023,
1024-25
(No. 97-1381) (view of Chairman Rogers) (affirming a finding of willfulness in part based on the employer deliberately removing safety devices to increase production),
aff’d
22 Fed
App’x
684 (8th Cir. 2001);
Valdak
Corp. , 15 BNA OSHC 1135,
1137
(No. 93-0239, 1994) (finding a violation willful where management knew the “interlock” on the machine was broken, continued to operate it anyway and where that decision was “made at least partly for economic reasons.”);
see also Am. Recycling & Mfg. Co. v. Sec’y of Labor , 676 Fed.
App’x
65, 71 (2d. Cir. 2017) (willfulness finding based in part on employer’s failure to respond to employee complaints about the unsafe pedal on a machine).

Donghee’s
arguments to the contrary are unavailing, as they simply rehash
whether or not
a hazard existed to require guarding on the Pad Check Machines. 15
Resp’t’s
Br.
16-17.
Because the Court has concluded a hazard did exist, the Court does not find these arguments relevant to determining
whether or not
Donghee
acted willfully when it deliberately disabled the laser safety scanner designed
to protect against the hazards of operating the machine.

Donghee
cites four cases in support of its argument
that
its violation was not willful.
Id.
at 16 nn.107-10.
Two of these cases,
Jimerson Under-Ground, Inc. , No. 04-0970, 2006 WL 1083457 (O.S.H.R.C.A.L.J., March 3, 2006), and
George Cairns & Sons, Inc. , 21 BNA OSHC 1361 (No. 03-2005, 2005) (ALJ), are unreviewed ALJ
decisions and therefore not binding on this Court.
See
Hartwell Excavating Co. , 4 BNA OSHC 1263,
1264
(No. 3841, 1976).

The Court does not find the other two decisions
cited by
Donghee
dictate a different result in this case.
In
Access Equip. Sys., Inc. , 18 BNA OSHC 1718 (No. 95-1449, 1999), the Commission
noted
the employer’s efforts
to comply with the standard
after
receiving a
first citation under the standard, including efforts to repair a cantilever and a “somewhat friendly, ongoing relationship” with OSHA to comply with the standard.
18 BNA OSHC at
1727-28.
The Commission considered this to be
evidence the employer was acting in good faith to comply with the standard.
Id.
at
1728.
No such evidence exists here, at least
with regard to
the ADA Pad Check Machine.
And in
Greenleaf Motor Express, Inc. , 21 BNA OSHC 1872 (No. 03-1305, 2007),
a majority of
the Commission found the violations were not willful because the employer lacked actual knowledge of the violations.
21 BNA OSHC at 1875-76.
Here, as the Court concluded above,
Donghee’s
managers had actual knowledge of the disabled laser safety scanner on the ADA Pad Check Machine
because it was
Donghee’s
own maintenance manager who disabled it.
(Tr. 51, 300-05).

The Court finds Instance (a) of Citation 2, Item 1 was a willful violation.

Instance (b) – the LFA Pad Check Machine

The
evidence of willfulness for Instance (b), regarding the LFA Pad Check Machine, is not
nearly
as conclusive, however.
The laser safety scanner on this machine had been inoperative for
only
a few months prior to the inspection.
(Tr. 51-53, 304-05).
Further, unlike Instance (a), the circumstances
leading
to
the non-functionality of this machine’s laser safety scanner are not clear from the record, particularly
whether or not
it was deliberately disabled for the purpose of increasing productivity on the machine.
There
is evidence
to suggest this was not the case.
Yates told the CSHO
he
did
try and have the laser safety scanner repaired
on the LFA
Pad Check Machine
but was told it was not currently in the budget
to do so.
(Tr. 141).
The Court also notes the circumstances
regarding
the non-functioning laser safety scanner on the LFA Pad Check Machine are much closer to those around the non-functioning light curtains on the Helium Check Machines,
violations the Secretary only classified as “serious.”
Based on these
considerations, the Court finds Instance (b) of Citation 2, Item 1 is more properly classified as serious.

The Court finds Instance (a) of the violation was willful; however,
Instance (b) is reclassified as a serious violation.

PENALTY

When OSHA issues a Citation, it may include a proposed penalty amount.
See
29 U.S.C. §   659(a). OSHA has published a Field Operations Manual (FOM) to, among other things, act as a guide for its CSHOs in proposing penalties. FOM at 1-1, 6-1. FOM, Directive No. CPL-02-00-163 (eff.
Jan. 23, 2023 ). However,
the Commission and its judges conduct
de novo
penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria.
See
Valdak
Corp. , 17 BNA OSHC 1135, 1138 (No. 93-0293, 1995),
aff’d , 73 F.3d 1466 (8th Cir. 1995);
Allied Structural Steel Co. , 2 BNA OSHC 1457, 1458 (No. 1681, 1975). In determining the appropriate penalty for affirmed violations, section 17(j) of the Act requires the Court to give due consideration to four criteria: (1) the size of the employer’s business; (2) the gravity of the violations; (3) the good faith of the employer; and (4) the employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury.
J.A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

The Citations proposed a total penalty of $135,019 ,
as follows:

For the serious violation of 29 C.F.R. § 1910.147(f)(1)(ii), the Citation proposed a penalty of $13,127.
This was based on the CSHO’s determination the violation had a high severity because an employee “could be crushed or killed or struck [or] permanently disabled” by the moving shuttle in the Blow Mold Machine.
(Tr. 81).
The CSHO also determined the probability was “greater” because “Park was in the machine and got struck.”
(Tr. 82).
This combination resulted in a “high greater” gravity violation and a
gravity-based
penalty of $13,260.
(Tr. 82, 85).
The CSHO applied a ten percent reduction based on
Donghee ’s
size, zero reduction for good faith, and a ten percent increase for history because
Donghee
“had a high rate of violation[s] within five years.”
(Tr. 85).

For the two instances of a serious violation of 29 C.F.R. § 1910. 212(a)(1) regarding the Helium Test Machines , the Citation proposed a total penalty of $9,377.
This was based on the CSHO’s determination the violations had a high severity because the
m achines “could cause … an
amputation [or] permanent disability.”
(Tr. 118).
The CSHO determined the probability was “lesser” because the machines “had been running [for] 3 to 6 months, 300 times a day, and they had not had an injury.”
(Tr. 118).
This combination led to a gravity-based penalty of
$9,472.
(Tr. 121).
The CSHO again applied a ten percent reduction for size, zero reduction for good faith, and a ten percent increase for history “with a high grade of violation of a lockout/tagout violation within five years.”
(Tr. 121).

For the two instances of a willful violation of 29 C.F.R. § 1910.212(a)(1) regarding the Pad Check Machines, the Citation proposed a total penalty of $112,515.
This was based on the CSHO’s determination the violation had a “medium” severity because the machines could not cause death but “could cause a fracture [or] a serious injury striking the employee on the head with that plate.”
(Tr. 144-45).
The CSHO determined the probability was “lesser” because “one machine had been two to three years, the other was two to three months, and we had the one known strike in the mouth.”
(Tr. 145-46).
This combination, as well as the violation’s willful classification, led to a gravity-based penalty of $113,652.
(Tr. 146).
The CSHO again applied a ten percent reduction for size, zero reduction for good faith, and a ten percent increase for history.
(Tr. 146-47).

The Secretary asks the Court to assess
all of
the proposed penalties;
Donghee
has made no arguments specific to the penalty amount.

Having weighed the relevant factors, the Court finds the proposed penalties for all the violations
are
appropriate and therefore assesses them for each
of the Citation items .
The Court finds the CSHO’s determinations as to the violations’ gravity accurately accounted for the severity and probability of harm on each of the subject machines.
Donghee
has not argued a reduction for good faith is warranted, and the Court finds no basis in the record to reduce the penalties on that basis.
The CSHO’s calculation already applied a ten-percent reduction for
Donghee ’s
size.
Donghee
has not challenged the CSHO’s representations as to its violation history, and the Court therefore adopts his increase of ten percent based on history.

Finally, even though the Court has reclassified one instance of the willful violation of 29 C.F.R. § 1910.212(a)(1) as serious rather than willful, the Court nonetheless assesses the full proposed penalty.
The Court does so on the basis of
Donghee :
1) deliberately disabling the safety device on the ADA Pad Check machine for the sake of increasing production efficiency ( Tr. 300-05 ); 2) continuing to run the machine for years despite knowing its manufacturer-installed safety device had been disabled ( Tr. 209-10, 238-39, 262-64, 301 ); and 3) bringing in temporary workers
to replace
Donghee
employees on the machine when those employees reported their safety concerns about operating the machine without the laser safety scanner
(an action the Court finds particularly offensive) . ( Tr. 240-44 ).
The Court also notes the record - evidence showing
Donghee ’s
managers often ignored safety issues with many of its machines and only re-installed the safety devices
on the subject machines
in response to the instant Citations.
( Tr. 143-44, 237-38 ).
The Court
therefore
finds the full proposed penalty is warranted here , even
with
only one instance of the violation being willful.
Cf.
Valdak
Corp. , 17 BNA OSHC
at
113 9
(increasing the ALJ’s penalty determination for a single willful violation).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed eral Rule of Civil Procedure
52(a)
and Commission Rule 90(a), 29 C.F.R. § 2200.90(a) .

ORDER

Based on the foregoing decision, it is hereby
ORDERED:

1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1910.147(f)(1) ( ii), is
   AFFIRMED , and a penalty of $13,127 is
   assessed;

2. Citation 1, Item 2, alleging two instances of a serious violation of 29 C.F.R. §1910.212(a)(1), is
   AFFIRMED , and a penalty of $9,377 is
   assessed;

3.
Citation 2, Item 1, alleging two instances of a willful violation of 29 C.F.R. § 1910.212(a)(1) : Instance (a)
is
AFFIRMED
as a willful violation;
Instance (b)
is
reclassified
a s
a
serious violation.
A penalty of $112,515 is assessed.

SO
ORDERED .

/s/ _________

Sharon D. Calhoun

Dated: November 9 , 2023             Administrative Law Judge, OSHRC

Atlanta, GA

"

1
In an introductory section of the argument portion of its brief,
Donghee
devotes a substantial footnote in support of the assertion
that
“[OSHA] must
adopt 30(b)(6) witness testimony.”
Resp’t’s Br. 8
n.62.
In this regard,
Federal Rule of Civil Procedure 30(b)(6) governs notices of depositions directed to, among other
entities,
corporations and
governmental agencies.
Fed. R. Civ. P. 30(b)(6).
For such notices, the serving party “ must describe with reasonable particularity the matters for examination.”
Id.
The named party must then “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.”
Id.
“The persons designated must testify about information known or reasonably available to the organization.”
Id.
Here,
CSHO David
Tisdale , who later became an Assistant Area Director,
was designated as the Secretary’s 30(b)(6) witness, and
Donghee
submitted certain portions of his deposition testimony into evidence , cited herein as the “Tisdale Deposition . ”
(Exh.
R-17).

Rule 30(b)(6) “was designed to “curb the ‘bandying’ by which officers or managing agents of a corporation
[or agency]
are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it.”
Wright & Miller,
Persons Subject to Examination—Corporations and Other Organizations , 8A Fed. Prac. & Proc. Civ. §   2103 (3d ed.) . Thus, an agency would be bound by a “legitimate lack of knowledge response” from a designated 30(b)(6) witness and may be precluded from introducing evidence on such a topic at trial
to avoid unfair surprise .
See, e.g. ,
QBE Ins. Corp. v. Jorda Enters., Inc. , 277 F.R.D. 676, 690 (S.D. Fla., Jan. 30, 2012).
However, an agency “ is no more bound
[by a 30(b)(6) witness’s deposition testimony]
than any witness is by his or her prior deposition testimony. A witness is free to testify differently from the way he or she testified in a deposition, albeit at the risk of having his or her credibility impeached by introduction of the deposition.”
R & B Appliance Parts, Inc. v. Amana Co., L.P. , 258 F.3d 783, 786 (8th Cir. 2001) ;
see also
Wright & Miller, § 2103 (“[A]s with any other party statement, [Rule 30(b)(6) deposition statements] are not “binding” in the sense that the corporate party is forbidden to call the same or another witness to offer different testimony at trial.”). Thus,
Donghee ’s extensive citations to CSHO Tisdale’s deposition statements throughout its brief are considered only to the extent normal deposition testimony would be considered , not as statements by which OSHA is “bound” as
Donghee
seems to suggest .

2
Donghee
entered
into evidence
two disciplinary notices issued to Park in connection with this accident.
(Exhs. R-3, R-3A, R-4).
Although the difference between these two
notices
was never explained at the hearing, one of the notices appears to have been issued
by
Donghee’s corporate office in South Korea
while the other was issued
by
management from
Donghee’s office
in Alabama.
( Compare
Exh. R-3,
with
Exh. R-4).

3
Both parties entered two video clips of the
operation of the
TMA Helium Test Machine into evidence. (Exhs. C-7, C-8, R-12A, R-12B).
The
parties entered the same video clip of an employee loading a tank onto the machine, stepping away from the machine, starting the machine (although the start button is not visible in the clip), and the metal plate thereafter lifting into the testing chamber. (Exhs. C-7, R-12B). This clip stops before the metal plate
lowers.
The
parties entered separate
and
different video clips
depicting
the metal plate lowering. (Exhs. C-8, R-12A). Because these videos are separated from the video of the plate ascending to the testing chamber, and because neither video depicts the employee operating the machine, they are somewhat inconclusive on the issue of whether the plate lowers automatically following a cycle or whether some employee action is required to lower the plate. Other evidence in the record suggests the lowering of the plate occurs automatically, however.
Particularly, the CSHO described the operation of the TMA Helium Machine and stated once an employee steps back from the machine and activates the cycle with the start button, they simply wait for the machine to finish its testing cycle before having to reapproach the machine and detach the hoses from the gas tank. (Tr. 117, 122, 180).
Additionally, although the UMA Helium Test Machine operates differently from the TMA
Machine, it only requires an employee to start the cycle; its drawer slides out automatically once the cycle has finished.
( Exhs. C-6, at 4; R-14, at 02:24 to 02:32; Tr. 103 ).
Based on this evidence, the Court concludes the lowering of the metal plate on the TMA Helium Test Machine occurs automatically when the machine has finished testing the gas tanks.
As discussed below in more detail, the Court attaches significance to this fact for identifying the
seriousness
of
the
hazard employees are exposed during the operation of the machine.

4
Although
Wills testified
to the content of this manual, the manual itself was not offered as an exhibit. (Tr. 296-98).

5
Multiple witnesses described an incident
involving
an individual operating the
ADA
Pad Check Machine. Apparently, on a date approximately three to four months prior to the CSHO’s inspection, this employee was operating the
ADA
Pad Check Machine
and reached over the
metal surface
of the machine, either to retrieve something he dropped on the ground or to address an issue with the T-shaped stopper on the far left of the machine.
(Exhs. C-14, at 1; C-15, at 2;
Tr.
127,
210, 221, 225, 244-45).
As the employee was doing this, the stopper
deployed
quickly (i.e.,
“popped up”) and struck the employee in the mouth. (Exhs. C-14, at 1; C-15, at 2;
Tr. 210, 221, 225, 244-45, 263, 283-84). The employee suffered a minor injury to his lip and was treated only with ice.
(Exh. C-15, at 2;
Tr. 210, 221).

6
According to
Jacob
Wills,
Donghee’s maintenance manager, the laser safety scanners installed on the Pad Check Machines were not connected to the stopper that struck
its
employee three to four months before the CSHO’s inspection.
(Tr. 329-30).
However, it is undisputed
the laser safety scanners, if functional, would stop the moving arm of the machine and thus address any hazards associated with that part of the machine.

7
The Court has identified one
im material issue raised by
Donghee
where Eleventh Circuit precedent differs from Commission precedent and addresses that issue below.

8
In its entirety, this note reads:

Note: Exception to paragraph (a)(2)(ii): Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See subpart 0 of this part).

9
Donghee
also cites to a portion of the CSHO’s deposition testimony in support of its rather specious argument that the Secretary has added a “fifth element” to the defense in this case.
Resp’t’s Br. 22.
Because
Donghee’s defense fails for at least three
other reasons, the Court finds no need to further address this argument or
the cited portion of the CSHO’s deposition testimony.

10
Donghee
argues “signs warning of a pinch point does not prove a hazard.”
Resp’t’s Br. 20.
Donghee
cites
Gulf Oil Corp. , 11 BNA OSHC 1476, 1481 (No. 76-5014, 1983), which stands only for the proposition that warning signs alone cannot establish the existence of a hazard without corroborating evidence.
See Gulf Oil Corp. , 11 BNA OSHC at
1481
(“ Gulf ’ s warning signs and respirator requirement
alone
do not establish the existence of the hazard.” ( emphasis added)).
Here, there is ample corroborating evidence to establish the existence of crush and pinch points
on
the UMA
Helium Test Machine. In the video documenting the operation of this machine, these points can
readily be seen as the metal drawer moves into
and out of the machine’s testing chamber.
(Exh. R-14, at 00:40 to 00:44, 02:24 to 02:32). The existence of pinch and crush and pinch points is further corroborated by Blankenship,
Donghee’s safety manager.
On January 31, 2019, in a message sent through Donghee’s internal messaging app, Blankenship sent a picture of the UMA Helium Test Machine accompanied by the following message:
“The light curtain does not work someone almost got caught by [the] machine.”
(Exh. C-6, at 6; Tr. 111-13, 269-72).

11
Although this case dealt with a different subsection of OSHA’s machine guarding standard,
29 C.F.R. §  1910.212(a)(3)(ii)
governing “[p]oint of operation guarding,”
other Commission cases have equated
all of the machine guarding standards for
purposes of
requiring more than work rules to protect employees.
See, e.g. ,
George C. Christopher & Sons, Inc. , 10 BNA OSHC 1436,
1444
(No. 76-647, 1982)
(Section 1910.212(a)(1)
and
Section 1910.212(a)(3)(ii)
“ require that guarding be provided by a  device  that itself prevents the operator from endangering himself. They do not permit an employer to depend instead on the skill or attentiveness of his employees.”
(emphasis in original) ).

12
On this point,
Donghee
points to a small discrepancy in the CSHO’s testimony at the hearing.
In his direct testimony, the CSHO testified he believed the moving metal plate on the Pad Check Machines could cause “a fracture in the mouth, [or] a contusion [or] a laceration.”
(Tr. 125).
In his cross-examination, however, the CSHO answered “No” when asked “Do you have any facts supporting a conclusion that this plate was going fast enough to cause a fracture?”
(Tr. 178).
Even if the CSHO’s cross-testimony refutes the possibility
of
the half-inch moving metal plate
causing a fracture, it does not discount the other types of injuries the CSHO believed it could potentially inflict if unguarded, including a “contusion [or a] laceration.” (Tr. 125).

13
The evidence on this subject was mixed.
The CSHO believed operational
laser
safety scanners
would
have prevented this injury, while Wills
testified they would not have.
( Compare
Tr. 129-30,
with
Tr. 329-30).
Although the Court does not believe
the stopper on the Pad Check Machines was the main hazard to which employees were exposed, the Court nonetheless resolves this conflicting evidence by crediting Wills’ testimony over the CSHO’s.
Wills was the maintenance manager at the Auburn facility and was much more familiar with
the machines in the facility
than the CSHO.
(Tr. 295-96, 396).
Moreover, Wills was a forthright witness during other portions of his testimony, including on subjects
for
which he might otherwise have had a motive to be evasive such as the deliberate disabling of the laser safety scanner
on the ADA Pad Check Machine.
(Tr. 300-05).

14
In a footnote in the knowledge section
of its brief on
this violation,
Donghee
briefly argues
a
guarding requirement
on the Pad Check Machines “would violate reasonable notice requirements under [the Act], the Administrative Procedure Act § 553, and the Fifth Amendment’s due process clause.”
Resp’t’s Br. 15 n.104.
Donghee
did not cite
to anything, factual, legal, or otherwise,
in support of any of these arguments.
The Court summarily rejects these cursory arguments.
See, e.g. ,
Herbert v. Architect of Capitol , 839 F.Supp.2d 284, 298 (D.D.C. 2012) (defendant
“ has simply failed to support its argument with any meaningful measure of factual or legal argument. Courts need not consider cursory arguments of this kind, and the Court declines to do so here.”).

15
Donghee’s arguments in this part of its brief are a bit scattershot, so the Court will briefly summarize them lest there is any question whether the Court has considered them all in reaching its finding of willfulness.
Donghee
first argues the willful characterization
of this violation is
“absurd” and then proceeds to argue it is
a
“high bar” for the Secretary to prove willfulness.
Resp’t’s Br. 15.
Having laid out the standard for willfulness,
Donghee
cites to the
four
cases
discussed
infra .
Id.
at 15-16.
Donghee
then argues the Secretary has failed to show the Pad Check Machines
were capable of causing injury to an employee “or a banana or a pencil for that matter.”
Id.
at 16.
Donghee
then goes on to point out neither of the Pad Check Machines has had a recordable injury despite operating nearly 600 times a day.
Resp’t’s Br. 16-17.
Donghee
again argues the cited standard is “need-based” and no such need was proven because there was no hazard from which to guard.
Resp’t’s Br. 17.
All of these arguments were addressed in one form or another in the portion of the Court’s decision finding noncompliance and exposure for Citation 2, Item 1.