Purvis Industries, LLC, d/b/a Snake River Supply

Read the official release (oshrc.gov)

Plain-English summary

Snake River Supply employees installed a replacement conveyor belt on a customer's potato truck in Idaho. While kneeling near the operating belt to observe its tracking, an employee reached toward the truck for support and mistakenly placed his hand into an unguarded roller nip point, sustaining broken bones and a partial degloving injury. OSHA cited Purvis Industries under the general machine-guarding standard. The judge found that the standard applied and that Purvis had constructive knowledge of the unguarded condition. OSHA nevertheless failed to prove noncompliance because the stipulated record did not show that entry into the nip-point danger zone was reasonably predictable through operational necessity, normal practice, or inadvertence associated with the work. The actual injury established exposure but did not substitute for proof that guarding was required under the performance standard. The citation was vacated, and the proposed $7,577 penalty was not assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1).
• Outcome: Serious machine-guarding citation vacated; no penalty assessed.
• Key point: Under the general machine-guarding performance standard, OSHA must prove that employee entry into the zone of danger was reasonably predictable, even when an injury actually occurred.

Full text (OSHRC public release)


Document

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary
o f Labor,

Complainant,

v.

OSHRC DOCKET NO. 1 9 -1619

Purvis Industries, LLC, d/b/a

Snake
River Supply,

Respondent.

APPEARANCES:        

Abigail G.
Daquiz,
Esquire

Department of
Labor, Office of the Solicitor

Seattle, Washington

For the Secretary

David N. Deaconson,
Esquire

Pakis,
Giote, Page & Burleson, PC

Waco, Texas

For Respondent

BEFORE:   

Christopher
D.
Helms

Administrative Law Judge

D ECISION AND ORDER

This proceeding is before the Occupational
Safety
and
Health
Review Commission (the Commission) pursuant
to
§
10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act). On
July 16, 2019, an employee’s hand was caught in the
unguarded
roller of a conveyor belt
on a
potato truck
in Lewisville,
Idaho. On July 17, 2019, the
injury
was reported to
the
Occupational Safety and
Health Administration (OSHA)
area office in
Boise, Idaho. On August 7, 2019,
OSHA
Compliance Safety and Health Officer (CO)
Andrew Martinson
opened
an
inspection
at
Respondent’s
facility
in Idaho Falls, Idaho.

OSHA
issued
a
citation and
notification
of
penalty
(Citation)
to
Respondent
on
September
30, 2019,
for
one
serious
violation
of
29 C.F.R.
§
1910.212(a)(1)
with
a
proposed penalty of $7,577.

The
Citation
alleged
employees were exposed to
an
unguarded ingoing
nip point on
a
truck’s
conveyor
belt.

Respondent
timely contested
the
Citation,
bringing
this matter before the Commission.

At the parties’
request, in lieu of a hearing,
this
decision
is
on
the stipulated
record
in accordance with
Commission Rule 61(a). 1

Rule
61(a)
states that:

“[a] case
may be fully stipulated by the parties and
su bmitted to the Commission or the Judge for a decis i on at any
ti me. The stipulation of facts shall be in writi ng and signed by th e
parties or their representatives. The submiss i o n of a case under this rule does not alter the burden of proof, the requireme nt s otherwise applicable with respect to adducing pr o of, or th e e ffect of failure of pro o f. ”

29 C.F.R. § 220 0.61(a).

The part ies
filed Joint Stipu lated Facts
(JSF)
that
inc l u ded
stipulated exh i bi ts
A through
N, which are
de si gnated a s
Ex.
J - * . Both parties filed
initial
briefs and response
briefs, which included
additional
exhibits designated as
Ex.
S-
for
the
Secretary and
Ex.
R-
for
Respondent. The
exhibits
included
three signed declarations from
CO Martinson (Ex. S-1),
[redacted], sales account manager for
Snake River Supply (SRS)
(Ex. J-G), and Cameron Barker, vice
president
of corporate operations for
Purvis
Industries, LLC
(Purvis)
(Ex. R-1).

The
key
issues
in
dispute
are
whether
Respondent had knowledge of
the
hazardous condition
and
whether
Respondent complied with
the
requirements
for machine guarding set forth at
29 C.F.R.
§
1910.212(a)(1). As
set
forth
below,
the
Court
finds
the
Secretary
has
not
proved
that
Respondent did not comply with the cited standard
and the Citation is vacated.

Ju ris diction

The Court finds
Respondent, at all
relevant times, was engaged
in a business affecting
commerce and
was
an employer within
the meaning of
sections 3(3)
and
3(5) of
the
Act, 29
U.S.C.
§§
652(3) and (5) . (JSF
¶
5 ).

F a cts

SRS,
located
in Idaho Falls, Idaho,
supplies
conveyor
belts and related equipment
to
the
agriculture, food processing, and aggregate industries
in the Idaho Falls area. (JSF
¶
2). Purvis, headquartered in
Dallas, Texas,
purchased SRS
on March 4, 2019. (JSF
¶¶
1,
3). Purvis employed more than 700 employees nationwide and 26 employees at the SRS facility. (JSF
¶
4).

On
July 16, 2019, warehouse technician, Nate Breese and
sales
account
manager,
[redacted]
installed a conveyor belt
on
a
potato
truck owned
and operated by
KK Farms in Lewisville, Idaho. (JSF
¶¶
6,
9).

SRS
had not previously
provided
products or services to KK Farms
and
[redacted]
hoped to add KK Farms as a new account for his outside sales list.

(JSF
¶¶
1,
7; Ex. J-G). Management did
not direct
them
to go
to KK Farms. (Ex. J-J,
¶
9).

KK Farms requested SRS remove
the
old conveyor belt from
its potato truck
and install
the
new belt. (JSF
¶
6). Neither
[redacted]
nor Mr. Breese
documented a
job
safety
analysis
for
the work
at
KK
Farms. (JSF
¶
10).
[redacted]
saw
that
the
pinch
points on the truck
and
conveyor belt
were
not
guarded.
(Ex. J-G
¶
4). Based on his common sense
and prior experience,
[redacted]
knew
to be
careful
around
these pinch point areas. (Ex. J-G
¶
4).

After
Mr. Breese installed the conveyor belt,
the
owner reactivated the belt
so
Mr. Breese could
determine if
adjustments were needed. (JSF
¶
11).

Both
Mr.
Breese and
[redacted]
were within five
feet of
the
moving conveyor belt and its
unguarded
ingoing nip points
and rotating parts. (JSF
¶¶
12,
14;
Ex. J-G
¶
4). Mr. Breese
watched
and adjusted
the
conveyor
belt from the top of
the
truck. (JSF
¶
13). [redacted]
kneeled
on the ground at
the
back of
the
truck
to
observe
the
belt’s
tracking; he was not working on the truck or
conveyor
belt. (JSF
¶
13; Ex. J-G
¶
6). As he
moved to get
up from
his kneeling position,
[redacted]
reached out to
the
truck
for support and
mistakenly placed
his
hand
into
the nip
point
of the
moving conveyor
belt’s
roller. (JSF
¶
15; Ex. J-G
¶¶
4, 9).

This resulted in
broken
bones and
the
partial de-glovement
of his hand. (JSF
¶
15).

S e c r e t a r y ’ s
B u r d e n
of
P r o o f

To
establish
a
violation
of
an
OSHA
standard,
the
Secretary
must
prove:

(1)
the
cited
standard
applies;
(2)
there was
a failure to comply with the cited standard;
(3)
one
or
more
employees
had
access
to
the
cited
condition;
and
(4)
the
employer
knew,
or
with
the
exercise
of
reasonable
diligence
could
have
known,
of
the
violative
condition.

A s t r a
P h a r m .
Pr o d .,
9
BNA
OSHC
2126,
2129
(No.
78-6247,
1981),
a f f ’ d
i n
r e l e v a n t
p a r t ,
681
F.2d
69
(1st
Cir.
1982).

The
Secretary
has
the
burden
of
proving
his
case
by
a
preponderance
of
the
evidence.

I d .

C i t a t i o n
1 ,
I t e m
1

The
Secretary
alleges
that
Respondent
violated
29
C.F.R.
§
1910.212(a)(1),
which
states:

(a )  Mach i ne guarding— (1 )   Types of guarding. One or more methods of
machine guarding
shall
be
provided to pro tec t
the op erator and oth er employees in the ma chi ne ar e a
from hazard s such as
those created by
point of operation,
ingo ing nip points , rotating
parts , flyi n g chips and sp ar ks. Examples of guarding methods are—barri er guards, two-h and tri pp i ng devices, ele ctr on ic saf ety devices, e tc.

O SHA alle ged
in the
Cita t ion
that
“on
or about July 16, 2019
and
at times prior, employee s
[were] expos e d to ingoing nip poin t s while inst a ll ing a be lt
on
a potato truck ”
at KK Farms.

Respondent assert s
t ha t
it had no knowledg e
that
either employe e
was
going to ins tall
a
c onv e y or belt
on the
potato
truck
at KK Farms
or that
the truck ’ s movi ng parts
and nip points
were unguarded . Furthe r,
R esponde nt assert s
it did not have the
necessary
control to
install
a guard o n
the
truck .

Applicabil ity

The parties stipulated
the
cited
standard
“applies
to the installation and maintenance of conveyor belts
on potato processing trucks, such as the truck and
conveyor
belt mechanism owned and operated by KK Farms.” (JSF
¶
9). Respondent
installed
a conveyor
belt
at
KK Farms. (JSF
¶¶
6,
11).

Nonetheless,
Respondent asserts
the
standard
does not apply to
its
work at KK
Farms
because it
had no
control over
the potato truck.

(R. Br. 7-8). This assertion fails. The Commission has
long held
that
even
at
a
worksite
where
the
employer does
not have
complete
control,
an
employer
must
take
“all reasonable
alternative
measures
to protect its employees from the violative
condition.” Ro ckwell Int ’ l
Corp. ,
17 BNA OSHC 1801,
1808
(No. 93- 54 ,
1 996)
(c on sol.)
(cit ati ons omitted) . Respon dent ’ s
l ack
o f
control
over th e worksite does no t
affect
the
a pp licability of
the
cited standard
to
its employees
installing a conve yor belt
at KK F arms . Respondent had
a duty
to provide
safe working
conditions
for its
employees
regardless of its
control
at
the
offsite
work area. The
cited standard
applies.

C ompliance
With The Standard

29 C.F.R.
§
1910.212(a)(1),
is a
“performance standard,
which
means
it states
the result
required . .
.
rather than specifying that
a
particular type
of
guard must be used.”

W ay ne
Fa r ms, LLC ,
2020 WL
5815506,
2
(No.
17-1174,
2020)
( Way ne )
(citations
omitted);
see al so,
Thomas Indus. Coatings , Inc. , 21 BNA OSHC 2283, 2287 (No. 97-1073,
2007)
(performance standards
are interpreted in light of what
is reasonable). To comply with a
performance standard
an employer must
“identify the hazards
peculiar
to its own
workplace and determine the steps
necessary to
abate them.” Wayne ,
2020 WL 5815506
at 2
(citations
omitted).

To prove the element
of
noncompliance, 2
the
Secretary
must prove
that
based on the
function
of the
machine
and how it was used
“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.”

Wayne ,
2020 WL 5815506
at,
*3
(citations
omitted). In
other words, Respondent
was
required to guard the
roller’s
ingoing
nip point
on the
conveyor belt if,
based
on the
necessary or
normal
process of
replacement and installation of
a
conveyor belt,
it was
reasonably predictable an employee
could be in
the
zone
of
danger.

The
facts of this
case
are
analogous
to
Wayne
where
the
Commission
stated
that
noncompliance
“hinges on whether
the
[employee’s]
actions were
reasonably predictable given the machine’s
normal operation.”
Wa yne ,
2020
WL 5815506
at
3. In
Wayne , an employee was injured when his
hand and arm were
drawn into
the
mechanical paddles of a flour hopper
after he
removed the
metal grate
to manually clean the hopper. I d.
at
1.
The
Commission found
that it was unnecessary to manually
clean the hopper
and
that other operators did not. Id.
at 4. The
Commission
found
the employee’s action
was idiosyncratic
and
the Secretary had
not
established
that
the machine was
“normally
operated in a way
that
contemplated or
anticipated such entry.” Id.
at
4 (citation
omitted).

Thus,
the Commission
held that
the employer
was not required to guard the
area
and
that
noncompliance
with
1910.212(a)(1)
was not established. Id.

Here, the
Secretary has not shown
that
based on
operational
necessity
or
the
normal
installation
process
that
it was
reasonably predictable
an employee would
be in the zone of danger and
make contact, intentionally or unintentionally,
with
the ingoing
nip points
of
the conveyor
belt’s roller.

Even though
supplying and installing
a conveyor belt
on a potato truck
was a
regular
part of its
business,
the record contains
little
information
about
Respondent’s
normal
process for installing a
conveyor belt. (JSF
¶
2). The
evidence
contains no information as to
the
usual
role of
a
sales account manager
during
an
installation
process
at
a client’s
site. The
record
is silent
as to whether it
was a
necessary
or
normal
part of
the
installation
process
for
a
second
person
to
observe
the
conveyor
belt
while the technician made adjustments. There
was no evidence
that it was
an
operational necessity
or
normal
practice
for
an employee to be under the truck near the unguarded
area of the conveyor
belt’s
roller. To sum-up, the
Secretary provided no evidence to show that
it
was
reasonably predictable an employee would
be
near
an unguarded roller
at the back of the
truck.

The
Secretary has not
proved
that
Respondent was required
to
guard the roller’s ingoing nip point on the conveyor belt because
there
is insufficient evidence to show that it
was
reasonably predictable
that an
employee
would be
in the zone of danger. Thus, the Secretary
has not
proved
the element of
noncompliance.

Exposure
To
T he
Cited
Condition

To prove exposur e, “t he Secretary must show
ei ther that Resp o nd en t ’ s employees wer e actually exposed to
th e
viola t ive condition or that
it is ‘reasonabl y
pred ictable .
.
. by operat ional n ecessity or otherwise (including inadvertence), that
employees have been, are, or wi ll be
in the zone of danger. ” ’
Dover High P e rf orma nce Plastics ,
I nc .,
2020 WL 5880242,
* 2
(No. 1 4 -1268, 2020)
(citati ons om itted) .

Here, the
sales
account
manager was actually exposed to the hazardous condition as shown by
his contact with the unguarded
conveyor belt’s nip point
and
the resulting
injury. Exposure to the cited hazard
is established.

K nowledge

T o establi sh know led ge, the
S ecretar y
must prove that Respondent
“knew or, with the exercise
of reasonable dil igence,
c ould have k n own of the
presenc e of
t he
violative condition .”
  Am. Eng’g
&
D ev . Corp ., 23 BNA OSHC 2093,
2095
(No.
10-0359, 2012)
( AEDC )
(citations omitted) .

Knowledge may
be imputed to the employer
“through its supervisory employee.” Id.

Neither
[redacted]
nor
Mr.
Breese
had
a position
of
supervisory
authority
with
Respondent. Further,
there is
no evidence
that any
supervisory employee
of
Respondent
knew
these
two
employees
were delivering
or
installing a conveyor
belt at
KK
Farms. 3 Thus,
actual knowledge of
the
hazardous condition is not proved.

The
Secretary
can
prove
constructive
knowledge
by showing
that
with
the exercise of reasonable diligence
Respondent
could have known of
the
hazardous condition.

AEDC,
23 BNA OSHC
at
2095. Accor ding to   the Commi s sion,   “ [r] easo nable dili genc e involv es
consi der ation of
sev e ral fac tor s, including the emp loye r ’ s obligation to
have a dequ ate work rules and training
programs, to a dequately supervise e m p loyees, to a nticipate hazards, and to ta ke
measures t o prevent the occ u rrence
of
vi olations.”  
Da ni s  Shoo k
Joint
Ven ture XX V ,
19
BNA OSH C 1 497, 1501 (No.
98-11 92, 2001),   aff' d , 319
F.3d 80 5 ( 6th Cir.
2003) .  
The obligat ion to inspect
(i.e., adequate supe r v ision) for h azards “req uires a
careful a nd
critical examination, and is
n ot sa tisfi ed by a me re o pportuni ty
to vi ew
equipment .”

Burford 's
Tree, Inc. ,
22 BNA O SHC
1948,
1950
(No.
07 -1899,
201 0) .

The
Secretary asserts that
Respondent
did not exercise reasonable diligence because it did
not
have
a safety program with
work rules or training
materials
to instruct employees
on how to work
safely
when
faced with the hazard of
unguarded equipment
at a customer’s
location.

(S.
Br.
9-10; S. Resp. Br. 6). The Secretary also asserts that Respondent made
no effort to
adequately supervise or anticipate hazards
at the
client’s worksite.

(S.
Reply Br.
3-6).

Respondent asserts that
its
work rules
and
employee
training
on
machine guarding safety
were adequate. (R. Br. 3, 5, 9).

Respondent ’ s
Work
Ru les

A
work rule must adequately address the cited hazard,
be clear, and cannot be too general. Se e   Superi or
Custom Cabinet Co .,
18 BNA OSHC 1019,
1021
(No. 94-200, 1997)
( Superior );
s ee also,
Pressure Concr ete Construction Co .,
15
BNA OSHC 2011,
1992 WL 381670, at *6
(No.
90-2668, 1992) (employer’s
general
policy to
not work in tunnel while it was raining was
not specific
enough
and
was
insufficient
instruction
for
employees). A
rule
that
“gives
employees too much discretion in
identifying
unsafe
conditions”
is too
general
to be effective.

Superior,
18 BNA OSHC at 1021.

Respondent’s
2018-2019
safety
training
materials
consisted of
33 pages of
toolbox
safety
talks
on
the subjects of
hand tools,
saws,
portable
extinguishers,
safe
lifting
practices,
lockout-
tagout of machinery,
forklifts,
PPE usage, shortcuts, overconfidence,
and
examples of
preventable
accidents. (JSH
¶
23;
Ex.
J-H).

There were
no work
rules
about the
requirement to guard
a machine’s
moving parts. In the lockout-tagout
and preventable accidents
sections, there were two
general
references
to the
hazard of moving parts. The first,
in
the
lockout-tagout
guidelines,
stated
“Never
reach into moving equipment. In even the blink of an
eye you
could have a
life changing injury.” (Ex.
J-H

PURVIS000014). The

second
mention
was
an
example
of
a preventable
accident
in which
an employee
lost
his balance
and placed his hand
into the
equipment’s
moving parts
while
squatting
nearby.

(Ex.
J-H

PURVIS000013).

Other than
the
general statement
not
to
reach into moving equipment,
Respondent had
no work
rule for
employees
to follow when they encountered the
hazard of
unguarded moving parts, including ingoing nip points.

This
work rule
was too
general and did
not
provide
specific instructions to employees on
how
to
prevent exposure
to moving parts. Respondent did not have an effective work rule
for
the
cited hazard.

Respondent ’ s
Training

Respondent asserts that both Mr. Breese
and
[redacted]
were adequately trained. (R. Br. 3, 5,
9). However,
Respondent did not know when
[redacted]
or Mr. Breese
were trained on
pinch points
and unguarded
equipment. (Ex. J-J
¶
3).

[redacted]
had
taken
neither
the OSHA 10-hour general industry safety course
nor the MSHA
Part 46 training. (JSF
¶
5). The only evidence of
training for
Mr. Breese
was
a
“working
safely with table saws”
session
on April 25, 2019. (Ex. J-H

PURVIS

000039). This
was
the only documentation of
employee
training
that
occurred
prior to the accident
at KK
Farms. Id.

[redacted]
averred
in
his
written declaration that he
knew
there
was
an unguarded
area on
the
potato truck’s conveyor belt
and
that
he
knew
from previous
training
that he
should not place his
hand
near the roller of
the conveyor belt. (Ex.
J-G
¶
6). [redacted]
did not
disclose
when he had
received this previous training or
whether
SRS had provided it. Despite his awareness
of
the
unguarded nip point,
he placed his hand into the
ingoing
nip
point of
the
conveyor’s roller when he reached out to
steady
himself while
rising from
the
ground. (Ex.
J-G
¶
6). Respondent cannot rely on a vague notion
of
[redacted]’s prior training or experience to meet its
duty to
train
employees on the hazards of unguarded equipment. See
Par Elec. Contr actors, Inc.,
20 BNA OSHC 1624, 1628
(No. 99-1520, 2004) (citations omitted)
(Employers
“cannot
count
on employees’
common sense,
experience, and
training
by former employers or a
union to preclude the
need for specific
instructions”).

Respondent’s
safety
training
program
provided no
guidance
on
a
guarding method
or other
measures
an employee
could utilize
to prevent
contact
with unguarded moving
parts;
instead,
it
provided
a
general,
minimal instruction to
not place a
hand near
“moving equipment.”

(Ex.
J-H

PURVIS000014).

Duty to Anticipate
and Prevent
Occurrence
of Hazard

In addition
to not
having a
work
rule, Respondent made no
attempt to anticipate
hazards, supervise the work
or provide specific instructions
for
the work
at KK Farms.

“The Commission has long held that an
employer
must inspect the area to determine what hazards exist or may arise during the work
before permitting employees to work
in
an area, and the employer
must then give
specific and appropriate instructions to prevent exposure to unsafe
conditions.”

Altor, Inc . ,
23
BNA OSHC 1458,
2011 WL 1682629,
*18
(No. 99-0958, 2011)
(citation omitted);
s ee
also ,
Greenl ea f
M otor Expre ss, Inc . ,
21 OSHC
1872, 18 74- 75
(N o .
03-1305, 2007)
( even
whe re
there had been no similar prior
incidents, t he
Commission
found
there
was a lack of reas onable
diligence
be cau se th ere was no inquiry ab ou t
or inspection of
th e
w ork area ) ;
Prid e
Oil Well
Serv . ,
15 BNA
OSHC
1809,
1814
(No. 87-692, 1992) (employer required to “inspect the work area, to anticipate hazards
to which employees may be exposed, and to take measures to
prevent the occurrence”) (citation
omitted) ;
Automatic
S p ri nkle r
C o r p . ,
8
BNA OSHC 1384,
1387-88
(No. 76-5089, 1980)
(inspection
of the work area must be done
even when
employees are
experienced).

Respondent’s safety
training
materials
did not provide guidance
for evaluating hazards
when working at a customer’s location or
on
unguarded
equipment. Respondent
did not
provide
supervision for
the
work at KK Farms.

Respondent’s safety program had no
means
for
employees to evaluate
and prevent
exposure
to
unguarded
nip points and rotating
parts
on equipment.

Respondent’s
safety program
at
the time
of
the accident
was
not
a
reasonably diligent effort to provide
an
adequate work rule, training, supervision
or
other
measures
to
prevent
an employee’s contact with
unguarded
nip points and rotating parts. ( See
Ex.
J-H;
JSH
¶
23). The
Secretary has
demonstrated that
Respondent
did not
exercise reasonable diligence to protect its employees
working
with unguarded
equipment
at
a
customer’s location.

Other
Arguments

Respondent
argues
that,
because
it
was
not knowledgeable about the potato farming business
or
that it did not know its employees
were
going
to KK Farms, it cannot have constructive knowledge. However, the work done at KK Farms—the
replacement
of
a conveyor belt on a potato truck—was within the
scope of
Respondent’s
usual business
as a supplier
of
conveyor belts to
the agricultural industry. ( See
JSF ¶
2). Respondent has not provided evidence
to show that
[redacted]
and Mr. Breese were engaged in conduct outside their
usual
job duties
or
the
usual practice of SRS, such that it would not
be the
type of
work or
equipment
that was
reasonably predictable. Respondent’s
argument fails.

Respondent
argues that
Mountain
States Contractors, LLC v. Perez,
825 F.3d 274, 283 (6th
Cir.
2016)
supports
its position
that
it cannot
have
knowledge
for
safety
hazards
on a machine that
was
unknown
to them. (R. Br.
8,
12). However,
Mountain Sta tes
does not
support
this assertion. There, the
circuit
court upheld the ALJ’s finding that
the cited employer had
constructive knowledge because
the employer had
been
lax
in its
supervision and with
reasonable diligence
could have known of the
equipment’s
deficiency.

I d.

This
argument is not persuasive.

Respondent
could have known, with the
exercise
of
reasonable diligence,
of
the unguarded
areas on the potato truck’s
conveyor belt. Constructive knowledge is proved.

Affirmative Defen ses

Respondent directly or indirectly
asserts
the
affirmative defenses of infeasibility,
multi-employer worksite,
unpreventable employee misconduct,
and employee error, inadvertence, accident or mistake. Respondent bears the burden of proof for these defenses.  See  Briones Util.
C o. , 26 BNA OSHC 1218,
1220
(No. 10-1372, 2016).

Infeasib ility
Defe nse

Respondent
asserts
that because it did
not own
or control
the
potato
truck
it could not
install
guards
for
the moving parts of
the
conveyor belt. Further,
Respondent
asserts
that it
was not feasible to refuse to work on
the
customer’s
equipment that
was not guarded.

To prove infeasibility, an employer must show that: (1) literal compliance with
the terms of the cited standard was infeasible; and (2) an alternative protective measure was
used or there was no feasible alternative measure.

Otis Elevator Co .,
24 BNA OSHC 1081, 1087
(No. 09-1278, 2013),
aff'd,
762 F.3d 116 (D.C.
Cir. 2014). The Commission expects “employers to
exercise some
creativity in seeking to achieve compliance.” Gre go ry & Cook, Inc ., 17 BNA OSHC 1189, 1191
(No.
92-1891,
1995).

The cited standard states that methods other than a
physical
barrier may be used
to protect employees. See
29
C.F.R.
§
1910.212(a)(1)
(“Examples of guarding methods are—barrier guards, two-hand
tripping devices,
electronic
safety devices, etc.”).

There is no
evidence that
Respondent
attempted
to
implement
any
means
of guarding
other than a
physical
barrier
or
that
no
other
feasible alternative
means
of guarding
was
available.

By contrast,
after the accident,
Respondent implemented a new policy that
required
employees
to
take an OSHA course
that included machine guarding safety,
to
conduct a job
safety
analysis
at
the
customer’s
site, advise customers on proper
guarding devices (when there
were
none),
to
attach individual lockout-tagout devices,
to
verify
equipment
was
running
properly
from a
distance,
and
to
keep all body parts away from
moving
equipment
parts.

(JSF
¶
19; Ex. J-D,
J-I

PURVIS 000041-45). This new policy by Respondent demonstrates there was

a feasible alternative
available. The
asserted
defense of infeasibility fails.

Mul ti-Emp loyer
W orks ite D ef e nse

Respondent
asserts that because
it did not own the potato truck
and had
no prior
knowledge that the
conveyor belt’s moving parts were unguarded,
it had no control over the hazard. Respondent
also asserts that it did not have
an obligation to inspect
the equipment
because
it did not own or
control
the truck the
conveyor belt was installed on. (Resp. Rep. Br.
4). In essence,
Respondent is
asserting a multi-employer worksite defense. To
establish this defense Respondent must
show
1)
that it did not
create
the violative condition,
2)
that
it did not
have control
to
abate the condition as
the standard required,
and
3)
that it
made
reasonable
alternative
efforts to protect its employees from the hazard
or that
it
did
not have,
and
with reasonable diligence could
not have
had,
notice of
the
condition.

Capform ,
Inc. ,
13
OS HC BNA 22 19,
2222
(N o. 84-556 , 1989) .

Respondent’s obligation to inspect
and be aware of
the hazards
at an employee’s work
location
was not dependent on
the
ownership
of
the
equipment it
was servicing.

Respondent
did
not
create
the
condition
of unguarded
nip points
on
the potato
truck
nor
did
it
have the control to place physical guards on the truck. However,
Respondent
made no
effort to implement
alternative methods
to
protect its employees from the hazard.

The multi-employer worksite defense
fails.

Unpreventabl e
Employ ee Misconduct

To
establish the defense of unpreventable
employee misconduct, the evidence
must show
that the employer: (1) had a work rule designed to prevent the violative
condition, (2) adequately
communicated that
work rule, (3) took reasonable
steps to discover violations of the rule, and (4) effectively
enforced the rule when it was violated. Stark
Excavatin g, I n c . ,
24 BNA OSHC 2218,
2220
(No. 09-0004,
2014)
(consol.)

Respondent’s assertion that it
had
a regular safety
program
and training
designed
to prevent contact with unguarded machinery
is rejected. As
discussed above,
Respondent had no rule
for employees to follow when faced with unguarded equipment, offered
no evidence of
communicating
such
a
work rule to employees,
had
no
plan to discover
violations of
employees
working
on
unguarded
equipment, and made
no effort to enforce a violation of
such
a rule. 4

The unpreventable employee misconduct defense fails.

Em ploy ee Error ,
Inadvert e nce , Acc iden t , o r Mistake

Respondent also
asserts
that
[redacted]’s
injury
was
the
result of
error,
inadvertence,
accident, or mistake. This assertion
misconstrues
the purpose of the
standard. As
the Commission
has
stated
since
its
earliest days,
“[t]he
standard
was
designed
to
provide against
such human weaknesses”
as
“neglect, distraction, inattention or
inadvertence.” Slyter Chair, Inc. ,
4
BNA OSHC 1110, 1112
(No.
1263,
1976);
Akr on Brick
&
Block Co. ,
3
BNA OSHC
1876, 1878
(No. 4859,
1976)
(“The plain purposes
of
the standard
are
to avoid dependence upon human behavior and to provide a safe environment for employees in the machine area from the hazards created by the machine’s operation.”);
see also,
Dover High Pe rf orma nce Plas tics, Inc .,
2020 WL 5880242, at *3

(employer
cannot rely on employee to not make a mistake
in timing
when operating
an unguarded
lathe). Thus, any mistake
by
[redacted]
does not absolve Respondent of its duty to comply with the requirements of the standard. Respondent’s assertion is rejected.

Con clusion

W h ile
the S ecretary
prove d
that Respondent had construc tive kn owledge of the h azar dous condition,
he
did not prove th a t Respondent
was required to guard the ing oing nip p oints on the conve yor belt beca use there was no eviden ce it was
r e as onabl y predic tab le
t h a t
by ne cessity or normal practice an employee would be
in the zone of danger for
the
hazardous condition.
Thus, the element of noncompliance with the stan dard was not
proved. The Secretar y has n ot met
the burde n for h is
prima f a cie
case.

F i n d i n g s
o f
F a c t
a n d
Co n c l u s i o n s
o f
L a w

All
findings
of
fact
and
conclusions
of
law
relevant
and
necessary
to
a
determination
of
the
contested
issues
have
been
made
above.

S e e
Fed.
R.
Civ.
P.
52(a).

All
proposed
findings
of
fact
and
conclusions
of
law
inconsistent
with
this
decision
are
denied.

O RDER

Based
upon
the
foregoing
findings
of
fact
and
conclusions
of
law,
it
is
ORDERED
that
Citation
1,
Item
1,
alleging
a
Serious
violation
of
29
C.F.R.
§
1910.212(a),
is
hereby
VACATED.        

SO ORDERED.

/s/ Christopher D.
Helms   

Christopher
D.
Helms

Administrative Law
Judge, OSHRC

Dated:

January 6, 2021

Denver, Colorado

"

1
The Commission has noted that
“[t]he submission of a case on stipulated facts under Commission Rule 61 is
not without some peril to a party having
the
burden of proof
on particular issues.” Farrens Tree Surgeons Inc. , 1992 WL 190282, at *1
(No. 90-998, 1992).

2
T he
Co m mission recently observed that
“ the noncompliance element
in machine guarding cases overla ps with
. . .
but is not identic al to , the
exp osur e element o f
the
Secretary ’ s pri ma facie case.
  Thus
. . .
th e
injury sustai ned by
[the
employee]
is only rele va nt
t o assessing actual
exposure and would likely satisfy that
element of the case if we were t o reach that issue—it is not a s ubsti tute
f or
esta blishing no n comp liance as a sepa rate element. ” Wayne , 2020 WL
5815506
at
*5
n.2
(ci tat ion
omitt ed) .

3
The Se cr eta r y provided no evide nce of the
s upervi sory
structure
at
SR S nor
who
directly
super vi sed
[re dacted]
or Mr . Bre ese .

4
W ith re spec t
to
d isc ipli ne
relate d t o
all
safety
violations
in the prior three years,
Respondent is sued
a total of three written r epr imands — one for not properly securing a load and two fo r forklift
violations. (Ex. J-J
¶
6).