S. Hens, Inc. v. Occupational Safety & Health Review Comm'n
930 F.3d 667
| 5th Cir. | 2019Background
- Night-shift employee Sheila Norman regularly cleaned a large rotating "Tumbler" at Southern Hens; she foamed and scrubbed the outside while the machine ran and then climbed inside after locking out the machine for internal cleaning.
- On August 4, 2016, while foaming and scrubbing the outside of the Tumbler with the machine running, Norman's glove was caught in the drive mechanism, partially amputating her thumb.
- OSHA investigated, observed an unrelated conveyor with an unguarded ingoing nip point where an employee cleared jams by hand, and issued three proposed serious citations: two for lockout‑tagout violations and one for machine‑guarding.
- At an ALJ hearing, the judge affirmed violation of 29 C.F.R. § 1910.147(d)(4)(i) (failure to affix a lockout device during cleaning) and 29 C.F.R. § 1910.212(a)(1) (lack of physical guard on conveyor nip point), rejected one procedural lockout‑documentation citation, declined Southern Hens’ unpreventable employee misconduct (UEM) defense, and imposed penalties totaling $12,000.
- The OSHA Review Commission declined further review; Southern Hens petitioned for judicial review in the Fifth Circuit, which affirmed the ALJ's findings and penalties.
Issues
| Issue | Secretary/OSHA Argument | Southern Hens' Argument | Held |
|---|---|---|---|
| Applicability and violation of lockout‑tagout §1910.147(d)(4)(i) | Cleaning the Tumbler required affixing a lockout device; machine was not locked out when Norman scrubbed outside and she was exposed | Company had general training and procedures; no knowledge the machine was being cleaned without lockout; worker misconduct caused injury | Violation upheld: constructive knowledge established; machine should have been locked out |
| Unpreventable Employee Misconduct (UEM) defense to lockout citation | Employer lacked a specific work rule requiring locking out the Tumbler during outside scrubbing; training didn’t communicate the ‘‘when’’ | Employer had general "keep hands off moving machinery" rule plus written lockout procedures—employee should have used them | UEM rejected: work rules were not specific; communication inadequate |
| Machine‑guarding (§1910.212(a)(1)) for conveyor nip point | Unguarded nip point exposed employees; frequent jams made exposure reasonably predictable; hand tool did not substitute for physical guard | Providing a hand tool and training to use it avoided exposure; guarding by distance permitted | Violation upheld: physical guard required; exposure reasonably predictable due to operational necessity |
| Seriousness of violations and penalties | Both violations could cause amputation/serious harm; penalties within adjusted statutory cap | Company argued absence of injuries and challenged penalty calculation/maximum | Violations deemed "serious"; penalties ($7,000 and $5,000) upheld; adjusted statutory maximums valid |
Key Cases Cited
- Sanderson Farms, Inc. v. Perez, 811 F.3d 730 (5th Cir.) (standards for judicial review of OSHRC factual and legal findings)
- W.G. Yates & Sons Constr. Co. v. O.S.H.R.C., 459 F.3d 604 (5th Cir. 2006) (elements of unpreventable employee misconduct defense)
- E. Tex. Motor Freight, Inc. v. O.S.H.R.C., 671 F.2d 845 (5th Cir.) (knowledge element focuses on physical conditions constituting violation)
- MICA Corp. v. O.S.H.R.C., 295 F.3d 447 (5th Cir. 2002) (employer knowledge and practical inquiry)
- Albemarle Corp. v. Herman, 221 F.3d 782 (5th Cir. 2000) (examples of injuries qualifying as "serious")
- Everglades Sugar Refinery, Inc. v. Donovan, 658 F.2d 1076 (5th Cir. Unit B) ("When human life or limb is at stake, any violation... is 'serious'")