Good Food Concepts, LLC d/b/a Ranch Foods Direct

Plain-English summary

Good Food Concepts operated a retail meat business where an employee's hand was caught in a meat grinder, resulting in the amputation of four fingers and inpatient hospitalization. OSHA cited the company for failing to guard the grinder and for failing to report the hospitalization within 24 hours. The judge found that employees routinely placed their fingers near the rotating auger, and that a stomper and verbal instructions were not substitutes for a physical guard. The company also could have learned the extent of the injury through reasonable diligence but made no timely report to OSHA. Both citation items were affirmed, with penalties totaling $16,384.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1); 29 C.F.R. § 1904.39(a)(2)
• Outcome: Both citation items were affirmed, with penalties of $9,557 and $6,827, for a total of $16,384.
• Key point: Tools and work rules do not replace a required machine guard, and an employer must make reasonable inquiries when a work injury may trigger OSHA's reporting deadline.

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 OF LABOR ,

Complainan t,

v.

GOOD FOOD CONCEPTS, LLC d/b/a RANCH FOODS DIRECT ,

Respondent.

OSHRC Docket No .
21-0946

Appearances:

Isabella Finneman and Bryan Kaufman ,
Department of Labor, Office of Solicitor,
Denver ,
Colorado ,

For Complainant

Kristin White and J.
Micah
Dickie, Fisher Phillips, LLP, Denver,
Colorado ,

F or Respondent   

Be fore: Judge
Christopher
D.
Helms

–
U. S. Administrative Law Judge

DECISION AND ORDER

I.    Procedural History

On June 11, 2021,
employee
[redacted]
was operating a meat grinder at a retail grocery store
owned by Respondent Good Food
C oncepts , LLC d/b/a/
Ranch Foods Direct
(Ranch Foods or Respondent) , when her
hand
got caught in
the grinder. The accident resulted in the amputation of four of her fingers. In response to
a n accident
complaint ,
the Occupational Safety and Health Administration (OSHA) sent Compliance Safety and Health Officer (CSHO)
David Morris
to conduct
a
worksite
inspection on June 15, 2021. As a result of the inspection, the Secretary of Labor (Secretary) issued
two citations.
Only Citation 1 ,
Item 1 and Citation 2 ,
Item 2
are relevant to this
case.

Citation 1 ,
Item 1
allege s
a
S erious violation o f
29 C.F.R. § 1910.212(a)(1)
for failing to
provide a machine guard on the meat grinder.
Citation 2 ,
Item
2 allege s
an
O ther- T han- S erious violation of 29 C.F.R.
§
1904.39(a)(2) for failing to report within 24
hours a work-related incident resulting
i n
an
in-patient hospitalization.
The proposed penalty for Citation 1 ,
Item 1
is
$9,557, and the proposed penalty for Citation
2 ,
Item 2
is
$6,827.

Ranch Foods filed a timely notice of contest, bringing the matter before the Occupational Safety and Health Review Commission ( Commission).
The
Chief Administrative Law Judge designated this matter for conventional proceedings and assigned it to this
C ourt on
November 29, 2021 . A
trial
was held on
September 22-23, 2022 . The following individuals testified:
(1) Jonathan Morrill, the
G eneral
M anager
for
the retail store ; (2)
[redacted] , the injured employee; (3)   Roger Wichman,
Head Meat Cutter
at the retail store ; (4) Michael
Callicrate , owner of Ranch Foods; (5)
[redacted] , Ms.
[redacted] ’s husband; (6) CSHO David Morris; (7) Bobbi Jo Kirby,
an employee of
Ranch Foods; and (8) Liesl Taylor,
an employee of
Ranch Foods.

After the trial concluded, both parties timely filed post-trial briefs, which were considered by the Court in reaching its decision.
Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order as its findings of fact and conclusions of law.

For the reasons discussed, both Citations are AFFIRMED.

II.    Stipulations & Jurisdiction

The parties
stipulated to
several
matters, including the jurisdiction of this Court over
this
proceeding and the parties before it.
See
Joint Stipulation Statement
(J. Stip.)
1, 2. The parties submitted the Joint Stipulation Statement to the Court prior to
trial
and
entered
the stipulations
into the record.
( Tr. 10 ) .
The
Court shall incorporate by reference the Joint Stipulation s
and refer to them as necessary in this decision.

III.    Factual Background

A. Ranch Foods & the Fillmore Street Store

Ranch Foods
was
a
meat processing business owned by Michael
Callicrate , who
ha s
been working in the meat industry for over 20 years .
(Tr. 410).
Ranch Foods
operate d
a retail store located at 1228 E. Fillmore Street, Colorado Springs, Colorado (Fillmore Street store),
which
sold
fresh
beef and
other
meat products directly to consumers and
consisted
of a retail section, a butcher, and a kitchen.
(Tr.
27 - 28,
82-83 ,
410 ) . When he was in town,
Mr.
Callicrate
visited
the store twice a day, four to five times a week , and on some
mornings,
he would observe the meat grinder being used .
(Tr. 424, 428).
He
oversaw
operations
of the store but
delegated
management
and supervision , including discipline of employees,
to John
Morrilland
John Wichman .
(Tr. 425 - 26).

In June 2021 ,
Mr.
Morrill was the
G eneral
M anager of the Fillmore Street store, and he
had
been in
that position
for 3 ½ years . 1
(Tr.
30) .
He
visited
the Fillmore Street store every
day
to pick up receipts from the night before and talk with employees about any issues or needs. (Tr. 97 98).
Mr.
Wichman was the head of the meat department, and he
was a 17-year employee of Ranch Foods with
over 50 years of experience in the
meat
industry.
(Tr.
285,
360) .
There were
13
to
15
employees at the Fillmore Street store in June 2021, and the meat department consisted of
Mr. Wichman, Ms.
[redacted] , and
John
Niccocia , an employee with over 50 years of experience in the meat industry . (Tr. 29 , 82 , 109 ) .

B. Oversight,
Safety
&
Training

Mr.
Morrill was charged with
ensuring
safety compliance
and
discipline
at the Fillmore Street store, and he
had the authority to remove employees for safety violations .
(Tr. 30 , 37 ).
Although Mr. Morrill
was the General Manager and
visited the store every day, he
never conducted an internal safety audit
or
check ed
the
equipment
in the meat department for safety
issues
because his daily visits were not geared toward looking for safety issues .
(Tr. 38, 39 , 98 ).
If any equipment
was not
operating properly
or posed any safety issues ,
he
expected
his employees
to report
those problems
to him and stop using the machine .
(Tr. 40 , 101 ). Mr. Morrill and other supervisors at Ranch
Foods relied on “observation by managers and other employees” to ensure
that employees were
working
safely ,
although
s afety violations were not documented
unless disciplinary action was required .
(Tr.
35,
96 , 115-116 ) .
Ranch Foods
also posted a Code of Safe Practices in a common area , along
with labor law posters and the weekly schedule. (Tr. 88, 89).

Ranch Foods did not have a formal
safety and health
training plan for
new
meat cutting
employees .
(Tr. 33-35 , 185-86 , 302-03 ).
E mployees were given a handbook,
which included a
general
disciplinary policy,
but specific safety
and equipment
training was left to the employees ’
immediate
supervisor.
(Tr. 35 , 93, 94 , Ex. R-14 ).
Mr.
Wichman supervised the meat department and
trained
new meat-cutters,
including
Ms.
[redacted] .
(Tr. 86 ,
101,
300 ) .
He
provided hands-on instruction
regarding
the operation of meat cutting tools and machinery,
and he was responsible for
ensuring that meat cutting employees were operating
the
machinery in a safe manner .
(Tr. 35 , 186 , 199 ).

In June 2021,
Ms.
[redacted]
had been employed at Ranch Foods for
three
years.
(Tr. 177).
She started her employment as a cashier and , a year and a half later,
joined the meat department
after
expressing
an
interest in learning the trade.
(Tr. 182 -84 ).
Mr. Wichman t rained
Ms.
[redacted]
how to
operate
the
meat grinder , and he taught her how to
use a stomper—an 18-inch
cylindrical
tool
that pushe d
pieces of meat down the throat of the grinder—as well as how to
disassemble and clean
the grinder’s components .
(Tr. 201-02 , 233 , 301, 314 , 368 ).

The meat grinder jammed frequently, so
Mr. Wichman
also trained
Ms.
[redacted]
on
how to clear a jam by reversing it and then allowing the machine to
run
again.
(Tr. 206, 208 , 370 ).
If the jam did not clear, the operator was expected to disassemble the machine and clean it.
(Tr. 368).
Mr. Wichman
taught Ms.
[redacted]
to use safety gloves while cutting meat and to wear a hair net.
(Tr. 303).
He
did not use any
videos or
written materials when training Ms.
[redacted]
on the meat grinder,
nor did he
review the
grinder’s
manual
or
documents published by
O SHA
that explained how to safely use a meat grinder.
(Tr. 199 , 205-06 , 307 , 324 ).

The grinder
involved in the accident
consisted of a hopper, a throat, the auger ,
and a rotating blade .
(Tr.
527-28 ).
The operator would place chunks of meat in the hopper and push the meat
with her hands
toward the
entrance of the
throat of the grinder, at the bottom of which was the auger and blades that ground the meat.
(Tr. 202 , 232 , 314 ). The
operator could use a
stomper

to
push
the meat down the throat of the grinder, which
was 3 inches wide and measured 4 ¾ inches in length.
(Tr.
72,
74 , 202 ) .
Sometimes an operator would use
her
fingers to dislodge meat from the walls of the throat when the stomper was ineffective. (Tr. 234 , 269 ).

Mr. Wichman
trained
Ms.
[redacted]
to avoid using her fingers to push meat
down
the throat of the grinder.
(Tr. 244 - 45).
However, despite knowing it was dangerous, he frequently used
his
own
fingers
to reach
up to
2
inches
into the throat of the grinder
because he “felt safe and comfortable” doing so based on his years of experience. (Tr. 316-18, 320)
Mr. Wichman testified he
knew his employees saw him
put his fingers in the throat, but he would advise his employees not to do so because it was unsafe.
(Tr.
245,
322).
T he
prohibition on using one’s fingers to push
meat into the
throat of the
grinder was not a written rule , and Mr. Wichman
never
formally reprimand ed
anyone for doing it.
(Tr. 275).
In the six months prior to the accident , no one had
been disciplined for
the
improper
use of meat cutting equipment
or using fingers in the operation of the
meat grinder , despite its common practice among the meat grinder’s operators .
(Tr. 203 , 270 , 437 ) .

C. The Accident
&
Hospitalization

On the morning of June
11 , 2021, Ms.
[redacted]
was
operating
the meat grinder when
it jammed.
(Tr. 220).
She tried to reverse the machine,
but it did not work. (Tr. 220). She then noticed extra meat on the side of the throat, so she reached into the throat to push it toward the auger,
at which time
her hand was caught and pulled into the grinder .
(Tr. 220).
Mr. Wichman , who was in the room,
unplugged the grinder, and
other employe e s called an
ambulance.
(Tr. 225 , 338 ).
Mr.
Crutcher,
the
F acilities
M anager ,
was at the Fillmore Street store that day, and he tried
to comfort
Ms.
[redacted]
until the ambulance arrived.
(Tr. 340 , 413 ).
Once
the paramedics
saw Ms.
[redacted] ’s condition,
they
debated whether to apply a tourniquet to Ms.
[redacted] ’s arm.
(Tr. 346).
Mr. Wichman
testified that overhearing this conversation made him realize the seriousness of the injury .
(Tr. 346-47).
The paramedics
ultimately transported Ms.
[redacted] , along with the grinder, to Penrose Emergency Hospital, where she was admitted as in - patient
at 12:10
p.m .
(J. Stip.
8 , 10 ) . At 1:36
p.m.,
Ms.
[redacted]
underwent emergency surgery, at which time the surgical team reversed the meat grinder’s motor,
freed
Ms.
[redacted] ’s hand, and amputated four fingers.
( Id.
at
10 ) .
That evening, Ms.
[redacted]
was discharged from Penrose Hospital and transferred to Presbyterian/St. Luke’s Medical Center in Denver, Colorado, where she remained hospitalized until June 18, 2021.
( Id.
at
12 ) .

Mr. Crutcher notified
Mr.
Callicrate
of the accident shortly after it occurred , and
Mr.
Callicrate
went to Penrose Hospital, where he
spoke
with Ms.
[redacted] ’s husband,
Mr.
[redacted] .
(Tr. 415, 417-419).
Mr.
[redacted]
testified that he
told Mr.
Callicrate
that Ms.
[redacted]
was in surgery . (Tr. 489).
Mr.
Callicrate
gave
Mr.
[redacted]
his business card before leaving the hospital
and asked Mr.
[redacted]
to keep him informed of Ms.
[redacted] ’s condition .
( T r. 419). Mr.
Callicrate
did not
obtain
Mr.
[redacted] ’s contact information ,
nor did he
ever
attempt to contact Ms.
[redacted]
or her husband to
inquire
about Ms.
[redacted] ’s condition .
(Tr. 421, 428-429 , 493 ).

On
June 12, 2021 ,
Mr. Wichman
called
Mr.
[redacted]
to express how sorry he was about the
accident
and
to
ask
whether he could help in any way.
(Tr. 352).
Mr.
[redacted]
told Mr. Wichman that the injuries were “bad,” and
Mr. Wichman
speculated that she had lost the tips of her fingers. (Tr. 353) .

Mr. Morrill
learned about the accident around midday on July 11, 2021 ,
when he received a voicemail from
Mr.
Crutcher. (Tr. 61). H e visited the Fillmore Street store
later that day
and
discuss ed
what happened
with the employees.
(Tr. 62).
He learned that Ms.
[redacted] ’s hand was caught in the grinder and that she was in the emergency room.
(Tr. 62).
However, he did not go to the hospital and, despite a history of communicating with Ms.
[redacted]
about attendance and injuries,
he
did not
take any proactive measures to learn the extent of Ms.
[redacted] ’s condition
in the days following the accident .
(Tr. 66 ).
On June 14, 2021,
Mr. Morrill
texted
Ms.
[redacted]
to express
how bad ly
he felt about her accident ; however, h e did not
inquire about her
injuries , attendance, or hospitalization .
(Tr. 63, 64, 493 , Ex. R- 20). That same day, Mr. Morrill informed
Workers ’
Compensation that Ms.
[redacted]
had been hospitalized for more than 24 hours, at which time he knew she
had
suffered an amputation injury. (Tr. 64, 65).

D. Inspection & Citation

CSHO Morris conducted an inspection of the Fillmore Street store on June 15, 2021, after OSHA received a complaint
allegation that
an employee lost four fingers in a meat grinder
accident .
(Tr. 519).
He
inspected the site
and meat grinder , took photographs of the meat grinder, and conducted interviews with
Mr. Morrill and Mr. Wichman .
(Tr. 524 - 25).
The CSHO ultimately concluded that Ranch Foods failed to provide a method of guarding the meat grinder to protect the operator from hazards related to the point of operation, ingoing nip points or rotating parts, in
violation
of 29 C.F.R.
§ 1910.212(a)(1) .
(Tr. 556-57).
He further concluded that Ranch Foods failed to report the accident to OSHA within 24 hours of
an accident requiring hospitalization, in violation of 29 C.F. R. § 1904.39(a)(2). (Tr. 571) .

IV.    Discussion

To establish
the
violation of a safety standard under
the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (the Act) , the Secretary m ust prove by a preponderance of the evidence: (1) the cited standard applies; (2) the employer failed to comply with the terms of that standard; (3) employees had access to the hazardous condition covered by the standard; and (4)   the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition.
Atl. Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994 ).
The Secretary has the burden of establishing each element by a preponderance of the evidence.
Hartford Roofing Co. , 17 BNA OSHC 1361, 1365 (No. 92-3855, 1995) .

A. Citation 1 ,
Item 1

Citation 1 ,
Item 1 allege s
a serious violation of
29 C.F.R. § 1910.212(a)(1 ), which
provides :

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 .

The Secretary
describes
the serious violation as follows:

On or
before 6/11/21 the employer did not ensure that the meat grinder was guarded effectively or that tools other than hands were used for pushing small amounts of meat through the grinder when the stomper supplied by the employer was unable to push meat through the grinder. An employee lost four fingers of their right hand when trying to push meat through when the stomper was not effective. This condition exposed employees to amputation and crushing hazards.

Citation at 6.

1. The Standard
   Applies

To establish applicability of the standard, the Secretary must show that , in the case of machine guarding, the employee is exposed to the hazard “from the way the machine functions and how it operates.”
Dentsply U S
Prosthetics, LLC ,
No.
16-0140,
2017 WL 7038046, at *2
(OSHRC
ALJ
Aug. 15, 2017) ( ci ting
Ladish Co. , 10
BNA OSHC
1235 ( No.
78-1384 ,
1981)
(“ the cited standard is generally applicable according to its terms to the hazards presented by the moving parts of all types of industrial machinery ”) .
Here, the Court concludes that
29 C.F.R.
§   1910.212(a)(1)
squarely applies to the meat grinder at issue. Specifically, the meat grinder present ed
a point of operation, ingoing nip point, and rotating parts hazards with the potential to cause serious injury, and Ranch Foods was required to provide one or more methods of machine guarding to protect the operator from those hazards.

Ranch Foods contends that the standard does not apply because the hazard identified by the Secretary was the result of activities covered by the lockout/tagout
(LOTO)
standard, 29 C.F.R.
§   1910.147 , which
applies to
“ the servicing and maintenance of machines and equipment in which the
unexpected
energization or
startup
of the machines or equipment, or release of stored energy could cause injury to employees.”
29 C.F.R. § 1910.147 (a)(1)( i ).
Ranch Foods
argues that Ms.
[redacted]
was clearing a jam when she was injured, which constitutes
a
service or maintenance
activity .
It contends that Ms.
[redacted]
should have locked out the machine, and her failure to do so resulted in injury.

The issue before the Court is whether Ms.
[redacted] ’s attempt to clear the jam
constitutes
“servicing and maintenance , ”
or whether it occurred
in the course
of
“ normal production operations.” The
LOTO
standard
may apply to
a
jam
in
a
machine .
See
29 C . F . R .
§
1910.147(b) ( in the definition section of the LOTO standard,
“ s ervicing and /or
maintenance” includes “cleaning and unjamming of machines or equipment”);
see also
Otis Elevator Co. v. Sec ’ y of Lab or ,
762 F.3d 116, 121 (D.C. Cir. 2014)
(finding
the repair of an elevator’s jammed chain violated the
LOTO standard). However,
its application
is limited to activities
“ outside of normal production operations .”
Sec’y, U.S. Dept of Lab or
v . Action Elec. Co. ,
868 F.3d 1324, 1336 (11 th
Cir. 2017 ) .
“ N ormal production operations ”
is “ t he utilization of a machine or equipment to perform its intended production function. ”
29 C.F.R. § 1910.147 (b) .

The Commission discussed the distinction between
“ servicing an d
maintenance activities ”
and
“ normal production operations ”
in
Westvaco Corp . , which
involved an injury during
a machine’s
set - up.
No.
90-1341,
1993 WL 369040, at 5 (OSHRC Sept. 14, 1993).
The Commission agreed with the Administrative Law Judge’s determination that “ work performed on the machine while the machine is not being operated to actually produce its product is either servicing or maintenance ”.
Id.
at 4.
It
concluded that
the operator’s adjustments
in that case
occurred
before normal production operations
and thus fell
within
the
definition of servicing or maintenance .
Id.
at *6. The
critical fact was
that
the employee’s actions
occur red
p rior to—not during—the operation of the machine.
Id.

Here, t he
C ourt concludes that
Ms.
[redacted] ’s unjamming of the machine fell within t he grinder’s “normal production operations.”
Jams in the meat grinder were common.
Mr.
[redacted]
was
actively
operating the grinder when it jammed. She
reached into the throat to dislodge
some
meat
and
give the grinder something to catch when she put the grinder into reverse and forward again . Putting the grinder in reverse is how Ms.
[redacted]
was trained to clear a jam while operating the grinder, and the use of her fingers
to dislodge meat from the throat of the grinder was a tactic
she learned from
Mr. Wichman.
Under the facts of this case, unjamming the machine was not a maintenance or servicing activity ; instead, it occurred during the grinder’s normal production operations .
Accordingly, the LOTO standard does not apply here ,
and instead the machine guarding standard applies .
See Roy Rock , LLC,
No.
18-0068,
2021 WL 3624785, at *3 (OSHRC ,
July 22, 2021) (holding that the LOTO standard did not apply because the operator “was still working on the machine” and his removal of a cylinder was unrelated to the machine’s “care” or “upkeep”).

2. The Secretary Established
   Violation of the Standard
   and Exposure to the Hazard

The elements of noncompliance and exposure overlap with one another in cases involving machine guarding.
Aerospace Testing All. ,
No. 16-1167, 2020 WL 5815499, at 6, n3 (OSHRC ,
Sept. 21, 2020).
Generally, the method of machine guarding
“ should not be predominantly dependent upon human behavior. ”
Akron Brick and Block Co . ,
No. 4859,
1976 WL 5896, at 2
(OSHRC ,
Jan 14, 1976) . Instead, the purpose of the standard is to
“ avoid dependence
upon human behavior and to provide a safe environment
for employees ”
operating machinery, regardless of their intelligence, skills, and tendency to neglect a specified course of conduct.
Id.
(citing
Hartford Accident &
Indem .
Co. v. Cardillo , 112 F.2d 11 , 15 (D.C. Cir. 1940 ) ).
The occurrence of an
actual injur y is
probative
of whether a machine presents a hazard, although it is not conclusive.
A.E.
Burgess Leather Co., Inc ., 5
BNA OSHC
1096, 1097 (No. 12501, 1977)
aff’d , 576 F.2d 948 (1st Cir. 1978)
(holding that actual exposure to a hazard was not negated by a favorable safety record) .

Ranch Foods maintains that it complied with the machine guarding standard because the meat grinder was guarded by design
and prevented
an employee’s
exposure to the hazard . Specifically, Ranch Foods argues that the length of the throat protected the operator by distance and the narrow width of the throat ensured that an adult’s hand could not enter the zone of danger. Ranch Foods also argues that operators were given a stomper,
which avoided the use of an operator’s fingers when pushing meat into the throat of the grinder , and that operators were warned against using their fingers inside the throat.

The Court concludes that Ranch Foods violated the machine guarding standard
and, as a result, employees were exposed to a hazard .
The operation of the grinder demonstrates the presence of a
hazard, i.e. ,
the auger and blades,
which
exposed the operator to significant risk of amputation. The fact that an accident involving the grinder had not previously occurred does not negate the presence of the hazard.
A.E. Burgess Leather Co. v.
OSHRC , 576 F.2d at
1097
(internal citations omitted);
see also
Lee Way Motor Freight, Inc. v. Sec ’ y of Labor , 511 F.2d 864, 870 (10th Cir. 1975) ( “ One purpose of the Act is to prevent the first accident. ” ).
Although
Ranch Foods
provided operators with a stomper, the standard expressly prohibits tools to be used in lieu of a guard. 29 C.F.R.
§  1910.212(a)(3)(iii) . Similarly,
§ 1910.212(a)( 1) does not permit guarding by work rules.
See Akron Brick & Block Co. ,
No.
4859 ,
1976 WL 5896, at * 3
(OSHRC, Jan. 14, 1076)
( holding that
work rules relating to the use of a safety switch and hook were not a method of guarding contemplated by
§  1910.212(a)(1));
see also
Gen. Elec. Co. , 10
BNA OSHC
1687, 1690 (No. 98 1107, 2001) ( holding
the point of operation must have a physical guard that does not depend upon correct employee behavior).

Moreover, the design of the throat was insufficient to satisfy the requirements of the standard.
To establish
the
exposure to a hazard required for noncompliance, 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.”
Fabricated Metal Prod s ., Inc. , 18
BNA OSHC
1072, 1073–74 (No. 93-1853, 1997).
The element of exposure is not an inquiry into the theoretical; rather, the Court must determine whether employee entry into the zone of danger is reasonably predictable .
Id.
( internal citation omitted) ;
see also
S. Hens, Inc. v. OSHRC , 930 F.3d 667 ,
681 (5th Cir. 2019)
(affirming ALJ’s determination that
exposure to the hazard was reasonably predictable by operational necessity because there was no guard on the conveyor, jams occurred frequently,
operators were expected to clear the jams, and the tool provided was too heavy to use in all instances, resulting in the employees’ fingers getting within an
inch or two of the nip point).

Here,
an employee suffered a
serious
accident
in her operation of the grinder
due to the lack o f a guard. A lthough not conclusive, the fact that Ms.
[redacted]
was able to access the zone of danger is
probative
of exposure. And, that exposure should have been reasonably foreseeable .
When operating
the grinder, employees put their hands in the hopper, which was
approximately
one inch above the top of the grinder’s throat.
The testimony at trial demonstrated that all three employees who used the meat grinder
inserted
their fingers one to two inches inside the throat of the grinder when they were unable to dislodge meat from the side of the throat. This would put their fingers within 2 to 4 inches from the rotating auger. The Cou r t concludes that the practice was so common that it should have been reasonably foreseeable that an operator would, by necessity or inadvertence, put
their
hands within the zone of danger .
See
Oberdorfer Indus . , Inc. ,
No.
97-0469 ,
2003 WL 22060459, at *7
(OSHRC Aug. 29, 2003 )
(consolidated)
(holding that
evidence of the operators’ hands being three to eight inches from the unguarded rotating chucks clearly established exposure to a hazard).

Ranch Foods argues that
there was no history of employees getting hurt from exposure to a hazard
presented by the meat grinder . However,
t he
occurrence of
only one
accident
does not negate the fact that the operator ’ s fingers were routinely in the zone of danger and exposed to
a hazard during the operation of the machine .
See
S .
Hens, Inc. , 930 F.3d
at
681–82
(“ The lack of injury history does not change the readily evident fact that a machine with a nip point lacked a physical guard. ”).
Thus, the Secretary established violation of the standard and exposure to the hazard.

3. The Secretary Established that Ranch Foods Knew or Should Have Known of the Hazardous Condition

To establish knowledge, the Secretary must show by a preponderance of the evidence “that the employer knew of the hazardous
condition, or
could have known through the exercise of reasonable diligence.”
Mountain States Contractors, LLC v. Perez , 825 F.3d 274, 283 (6th Cir. 2016) ( internal citation omitted).
“When considering the question of reasonable diligence, the
ALJ
looks to a number of factors including: ‘an employer’s obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence. ’   ”
Id .
at
285 (quoting
Kokosing Constr. Co. v. OSHRC , 232 F .
App’x
510, 512
(6 th
Cir. 2007) (unpublished)) .
The Co urt
also considers whether the employer has adequate work rules and training programs and has adequately supervised
its
employees.
Precision Concrete Constr. , 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001)
(internal citation omitted ) ;
see also
ComTran
Grp., Inc. v. U.S.
Dep ’ t
of Lab or , 722 F.3d 1304, 1307–08 (11 th
Cir. 2013)
(holding that an employer’s failure to implement an adequate safety program can show knowledge because, in the absence of a program, violation of safety rules is reasonably foreseeable).

Generally, t he knowledge of a supervisor or foreman can be imputed to the company.
See Jersey Steel Erectors , 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993),
aff’d , 19 F.3d 643 (3d Cir. 1994) (unpublished) (imputing constructive knowledge of supervisor to the company ) .
However,
this
becomes more complicated when the supervisor
himself
is engaging in misconduct.
In those circumstances ,
the supervisor’s violation of safety rules cannot be imputed to the employer and the Secretary must instead establish the employer’s actual or constructive knowledge based on
whether the supervisor’s misconduct was foreseeable.
W.G. Yates & Sons Const r . Co. Inc. v.
OSHRC , 459 F.3d 604, 609
n.8
(5 th
Cir. 2006) ;
see also
Mountain States Tel. & Tel. Co. v. O SHRC , 623 F.2d 155, 158 (10 th
Cir. 1980)
(same).
“ The Secretary can meet this burden by showing that the violation was foreseeable because of inadequacies in safety precautions, training of employees, or supervision. ”
Cap. Elec. Line Builders of Kan . , Inc. v. Marshall , 678 F.2d 128, 130 (10th Cir. 1982) . 2

Here,
Mr. Wichman
testified that he knew the meat grinder was
a dangerous machine
and that placing his fingers into the throat of the grinder was
unsafe .
He expressly admitted that although
no one should insert their fingers into the throat ,
he routinely did
so in his operation of the
grinder .
Moreover, the testimony demonstrates that
employees who operated the meat grinder
regularly inserted
their fingers
in the throat of the grinder to knock meat down into the auger , which would have been easily observed by
Mr. Wichman or other
Ranch Foods management.

Further ,
the misconduct by
Mr. Wichman
was reasonably foreseeable.
The record shows that Ranch Foods did not have
effective
safety training or rules in place.
W.
G. Yates,
459 F.3d at 609 n.8 (holding that evidence of lax safety standards rendered the supervisor’s violation of safety rules foreseeable).
Ranch Foods did not
give
a training or safety manual to employees operating the
meat
grinder. Management did not observe the operation of the meat grinder
for safety ,
n or
did management
oversee Mr. Wichman’s training of new employees.
Hamilton Fixture , 16 BNA OSHC 1079, 1087 (No. 88-1720, 1993) (citation omitted),
aff ’ d , 28 F.3d 213 (6th Cir. 1994)
(holding that
a n employer ’ s obligation to inspect its workplace for hazards “requires a careful and critical
examination, and
is not satisfied by a mere opportunity to view equipment. ” ).
Discipline or reprimands, if issued, were not formally documented , and no employee was cited for
any safety rules violations
while operating the meat grinder.
The inadequacies of Ranch Foods’ safety training and precautions established that Mr. Wichman’s own violation of safety rules
was
foreseeable.

Moreover , Mr. Morrill as the general manager had the responsibility to ensure that his employees worked safely, and he could discipline
actions
that
were
unsafe. Yet, he failed to examine the machines at the worksite, did not observe employees using the grinder, and did not check the equipment for safe operation. Although Mr. Morrill testified that he
relied
on his employees to
act safely and
report any safety issues with the machines, an employer cannot simply delegate the duty of safety to its employees .
See PBR, Inc. v. Sec'y of Labor,
643 F.2d 890, 895 (1st Cir.
1981) (“[The employer] cannot escape responsibility for the violation because it warned

its employees to exercise caution.
Such delegation of employee safety to the employees themselves is clearly inconsistent with the purposes and policies of the Act.”).       The Court concludes that the Secretary has met her burden to demonstrate that the standard applied
and
was violated,
which
exposed employees to a hazard . The Court further concludes that
Ranch Foods knew or could have known of the hazard with the exercise of reasonable diligence.
Lastly, the Court notes that there is no dispute over the classification of Citation 1 Item 1 as Serious.
Under section 17(k) of the Act, 29 U.S.C. § 666(k), a violation is serious if there is a substantial probability that death or serious physical harm could result.
Conagra Flour Milling Co. ,
No . 88-2572 ,
1992 WL 215113, at *7
(OSHRC ,
Aug. 18, 1992). That threshold is met here.

Accordingly, the Court
now
turns to the affirmative defense advanced by Ranch Foods:
unpreventable
employee misconduct.

4. Ranch Foods Failed to Establish Unpreventable Employee Misconduct

Ranch Foods argues that Ms.
[redacted] ’s intentional act of trying to unjam the grinder without ensuring it was locked out was employee misconduct. It argues in the alternative that
Ms.
[redacted] ’s
act of pushing meat down the throat of the grinder rather than using the stomper was
unpreventable
employee misconduct
because she engaged in that misconduct
despite being trained to use the stomper and how to operate and unjam the grinder safely.

To establish
the
defense
of unpreventable employee misconduct ,
the burden shifts to the
employer
to
show that it had: (1)   established work rules designed to prevent the violative conditions from occurring; (2)   adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.

Manganas
Painting Co., Inc. ,
No.
94-0588 ,
2007 WL 6113032, at 40
(OSHRC ,
Mar. 23, 2007).
When the alleged
misconduct is that of a supervisor, the proof of “unpreventable
employee misconduct” is more rigorous and more difficult to establish since it is the supervisor ’ s duty to protect the safety of
employees under his supervision.
Archer-W .
Contractors Ltd ., No. 87-1067, 1991
WL 81020, at 5 (OSHRC, Apr. 30, 1991) . Involvement by a supervisor in a violation is “strong evidence that the employer’s safety program was lax.”
Daniel Constr. Co.,
10 BNA OSHC 1549, 1552 ( No. 16265,
1982).

“ The conventional way to prove the enforcement element is for the employer to introduce evidence of a disciplinary program by which the company reasonably expects to influence the behavior of employees. ”
Precast Serv s. , Inc .,
No.
93-2971 ,
1995 WL 693954, at 1
(OSHRC ,
Nov. 14, 1995).
“ For instance, an employer may provide evidence of a progressive disciplinary plan consisting of increasingly harsh measures taken against employees who violate the work rule. ”
Id . (citing
Asplundh Tree Expert Co .,
No. 16162,
1979 WL 8540, at 7
(OSHRC ,
Dec. 31, 1979)
(employer introduced evidence of company policy calling for a stern oral or written reprimand for the first violation, followed by discharge for a second violation) ) .
This requires
evidence that an employer
enforced its safety rules and documented safety violations committed by its employees.
See
Angel Bro s
Enter s. , L td.
v. Walsh , 18 F.4th 827, 832 ( 5 th
Cir.
2021)
(holding that despite the existence of work rules and proactive steps taken to discover violations, the employer was unable to show documentary evidence that it enforced its safety rules upon
discovering violations ).    Here , the Court concludes that Ranch Foods had limited safety rules in place and
was
lax in the enforcement of those rules.
If
management
issued warnings to
employees,
they
were given verbally,
and there was no requirement for documentation
of work rule violations .
Moreover , there is no evidence in the record that any Ranch Foods employee s
was
ever
actually
reprimanded or
disciplined for safety violations
in their
operation of the meat grinder .

In addition, the record shows that Ranch Foods management did not take steps to discover violations of work rules.
Employees, including the
meat department
supervisor, reported that they routinely used their fingers to push meat into the throat of the grinder.
Mr.
Callicrate
and
Mr.
Morrill had ample opportunity to observe the operation of meat cutting machinery and correct any behavior that violated safety rules.
However, they did not get involved in determining whether the machinery was operating safely or
address
the meat grinder’s frequent jamming issues. The failure of management to conduct safety reviews or observe the operation of the meat grinder is
fatal to Ranch Foods’ employee misconduct defense.

Accordingly, the Court AFFIRMS Citation 1 ,
Item 1.

B. Citation
2 ,
Item
2

Citation
2 ,
Item
2
alleges a n
O ther- T han- S erious violation of 29 C.F.R. § 1904.39(a)(2),
a reporting standard,
which provides:

Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee's amputation or an employee ’ s loss of an eye, as a result of a work-related incident, you must report the in-patient hospitalization, amputation, or loss of an eye to OSHA.

The Secretary describes the serious violation as follows:

On or before 6/11/21 the employer did not
report a
work related
amputation resultin g
in inpatient hospitalization to OSHA as required by this standard.

Citation
at
10.

It is undisputed that Ms.
[redacted]
suffered a serious injury that resulted in the amputation of four fingers and in - patient hospitalization.
( J .
S tip .
¶ 10 ) .
It is also undisputed that Ranch Foods did not report the in - patient hospitalization to OSHA , thus violating the standard .
The
only inquiry left for the Court is to determine whether Ranch Foods had actual or constructive knowledge of Ms.
[redacted] ’s hospitalization and amputation injury , thus triggering its obligation to report.

The reporting requirements “ provide the Secretary with prompt notification of serious accidents so that
[s] he can take timely action to avoid further injuries. ”   Lancaster Colony Corp .,
Candle-lite Div . ,
No. 92-0958,
1993 WL 119644, at 3
(OSHRC
ALJ,
Apr. 5, 1993)
(internal citation omitted).
The Commission has found an employer to be in violation of the reporting standard even where the employer made a good faith effort to report an accident but reported it
t o state and local authorities instead .
See, e.g.,
F. F. Green Const r.
Co., Inc .,
No. 1015,
1973 WL 4269, at 6
(OSHRC Nov. 26, 1973)
(finding a violation of the reporting requirement
where the employer reported the accident to a third party, even though the third party then timely notified the nearest OSHA office).

Here, t he record demonstrates that
management
made no effort to report the accident to OSHA, despite its awareness
of the accident and its severity. Mr. Wichman was in the room when the accident occurred, and he observed Ms.
[redacted] ’s
inability
to extract her hand from the grinder. He
testified that he
overheard the paramedics debating whether to apply a tourniquet to her arm,
which
gave him a strong indication that her injuries were severe
and may involve amputation . Mr. Wichman spoke with Mr.
[redacted]
the day after the accident , at which time he learned that the injuries were “bad.”

Mr.
Callicrate
and Mr. Morrill had
ample
opportunity to learn the extent of Ms.
[redacted] ’s injuries and whether she
was
admitted
in - patient
at the hospital . Mr.
Callicrate
was at the hospital within hours of the accident,
at which time he could have
made serious inquiries
as to
Ms.
[ redacted] ’s condition and treatment plan. Mr.
Callicrate
also spoke with employees of the Fillmore Street store
after the accident , which would have
informed him
of the severity of the accident. Yet, Mr.
Callicrate
made no effort to
ask about
Ms.
[redacted] ’s condition , including
whether she would be able to return to work. Similarly,
Mr. Morrill spoke with the
Fillmore Street
store’s
employees shortly after the accident
and
should have been aware of the severity of the accident. Yet, he failed to contact Ms.
[redacted]
or her husband until
three days after the accident , despite previously being in regular contact with Ms.
[redacted]
regarding her attendance and time off requests.

Management, with the exercise of
reasonable
diligence,
could
have
learned within 24 hours of the accident
that Ms.
[redacted]
suffered an amputation and was
admitted
in - patient at the hospital .
However ,
i t
failed to conduct any sort of investigation . An employer cannot escape
liability
for violating a reporting standard by failing to
make
reasonable
efforts to gather information and make inquiries about
an employee’s condition
and hospitalization .

Citation 2 ,
Item 2 is AFFIRMED.   

O RDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
Based upon the foregoing Findings of Fact and Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item
   1, alleging a
   S erious violation of
   29 C.F.R. § 1910.212(a)(1)
   is AFFIRMED, and a penalty of
   $9,557
   is ASSESSED.

2. Citation 2, Item 2, alleging an Other-Than-Serious violation of
   29 C.F.R. § 1904.39(a)(2)
   is AFFIRMED, and a penalty of
   $6,827
   is ASSESSED.

SO
ORDERED .

/s/

Dated:

May 15, 2023

Denver, Colorado

Christopher D. Helms

Judge, OSHRC

"

1
Mr. Morrill had previously worked for Ranch Foods as a bookkeeper between 2008 and 2015.
(Tr. 40).

2
The Court notes that there is a split
between the Commission and some circuits
on this issue.
Compare
Revoli   Constr
No. 00-0315, 2001
WL 1568807, at 3-4 ) (finding “actual or constructive knowledge of an employer’s foreman or supervisor can be imputed to the employer”)
with   Mountain States Tel. and Tel. Co. v. O SHRC , 623 F.2d 155, 158 (10th Cir. 1980)
( holding that knowledge cannot be imputed to an employer when the noncomplying behavior is the supervisor’s own).
Since
the Tenth Circuit could consider the matter if a petition for review were to be field,
the Court relies on
the
precedent
in that circuit .
See
Kerns Bro s.
Tree Serv . ,
No.
96 1719 ,
2000 WL 294514, at 4 (OSHRC ,
Mar. 16, 2000) (“Where it is highly probable that a Commission decision would 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.”)