SANDERSON FARMS, INCORPORATED, Petitioner, v. Thomas E. PEREZ, Secretary, Department of Labor, Respondent.
No. 15-60215.
United States Court of Appeals, Fifth Circuit.
Jan. 22, 2016.
811 F.3d 730
As to the timing of registration based on changes of residence, the understanding of “habitually lives” to mean living in a place for at least 30 days does not mean that the registration of a sex offender who enters a jurisdiction to reside may be delayed until after he has lived in the jurisdiction for 30 days. Rather, a sex offender who enters a jurisdiction in order to make his home or habitually live in the jurisdiction must be required to register within three business days, as discussed in Part X.A of these Guidelines. Likewise, a sex offender who changes his place of residence within a jurisdiction must be required to report the change within three business days, as discussed in Part X.A.48
Thus, under the SMART Guidelines, because Thompson abandoned his residence in one city in Texas and relocated to another city in Texas, Thompson qualified as “a sex offender who changes his place of residence within a jurisdiction“-i.e., within the State of Texas.49 Thompson was therefore “required to report the change within three business days.”50 Thompson failed to do so.
Because Thompson‘s proposed instruction omits crucial qualifying language from the SMART Guidelines, it would have misled the jury regarding when Thompson was required to update his registration. As a result, the district court correctly rejected the proposed instruction.
IV.
Because the district court committed no error, we affirm Thompson‘s conviction.
AFFIRMED.
John X. Cerveny, Charles Franklin James, Heather Renee Phillips, M. Patricia Smith, Washington, DC, Louise McGauley Betts, Esq. (argued), U.S. Department of Labor Office of the Solicitor, Occupational Safety & Health Division, Washington, DC, for Respondent.
Before SMITH, WIENER, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Sanderson Farms, Inc. petitions for review of an order of the Occupational Safety and Health Review Commission (OSHRC) citing Sanderson Farms for an unguarded arbor and projecting key in violation of the mechanical power-transmission apparatus regulation,
FACTS AND PROCEDURAL BACKGROUND
Sanderson Farms, Inc., a nation-wide poultry producer, operates a chicken processing plant in Laurel, Mississippi. On January 15, 2014, an Oсcupational Safety and Health Administration compliance officer conducted a planned inspection of the facility. Two machines found at the plant are at issue in this case-the chicken cutting table and the deboning station. Sanderson Farms was cited for operating the chicken cutting table with an unguarded, rotating arbor, and for having an unsmooth projecting shaft end below the surface of the deboning station, but above the platform where the workers stood, because it had a key protruding on its surface.
The chicken cutting table includes a stationary saw that is used to cut whole chickens in half. Whole chickens are deposited on the table through a metal chute. The operator then takes a wholе chicken, puts one hand on each end of the chicken, guides the chicken through the stationary saw to cut the chicken in half, and drops the cut halves in a bucket underneath the table. The sawblade is held in place by an arbor which is connected to the shaft of the saw motor. The arbor is connected to the motor shaft by two screws that sit slightly above the shaft. The motor rotates the motor shaft, arbor, and sawblade. The arbor and motor shaft sit less than seven feet from the floor, connected with a one-quarter inch gap between them, and rotate together at 1,750 rotations-per-minute. The arbor has several impressions, creating a slight rise in the metal, made by the teeth of a wrench used to connect the arbor tо the shaft. When a worker moves a chicken through the saw, his or her hands come within six to eight inches of the rotating arbor.
The compliance officer found that the arbor was unguarded in violation of
At the deboning station, workers stand on an eight-inch platform. One of the deboning stations included a prоtruding, rotating shaft end located two-and-one-half feet above the platform. A key extended roughly one-sixteenth to one-eighth of an inch from the surface of the shaft end, which rotated slowly at 40 rotations-per-minute. The key was unguarded and connected to the shaft end as if it were permanently joined.
The compliance officer found that the surface оf the unguarded rotating shaft end was not smooth as required by
Following a hearing, an Administrative Law Judge (ALJ) found that the Secrеtary of Labor carried the burden to prove both citations by a preponderance of the evidence. Specifically, the ALJ found that it was undisputed that the rotating arbor at the cutting station was seven feet or less above the ground. Further, she found that there was sufficient evidence to sustain a violation for the unguarded arbor because the arbor is a “vitаl and integral part of the power transmission apparatus and must be considered part of it” because it rotates at the same speed and presents the same hazard as the transmission shaft. The ALJ also found that there was sufficient evidence to establish that the key extending from the protruding shaft end was a violation because the standard required that the shaft еnd be smooth, the plain meaning of smooth is a “continuous even surface,” and the fact that the key extended from the shaft end meant the shaft end could not have a continuous even surface. Based on these findings, the ALJ fined Sanderson Farms $1,500.00.
Sanderson Farms sought discretionary review with the OSHRC. The case was not directed for review and the ALJ decision became a final оrder of the OSHRC on January 30, 2015. Sanderson now petitions for review.
DISCUSSION
Findings of fact of the OSHRC must be accepted if supported by “substantial evidence on the record considered as a whole....”
OSHA has the burden of proving sufficient facts to support the citation. Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir.1979). The Secretary of Labor must show by a preponderance of the evidence: (1) that the cited standard applies; (2) noncompliance with the cited standard; (3) аccess or exposure to the violative conditions; and (4) that the employer had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence. Secretary of Labor v. Jesse Remodeling, LLC, 22 BNA OSHC 1340 (2006); Secretary of Labor v. Atlantic Battery Co., 16 BNA OSHC 2131 (1994). Where a standard presumes a hazard, however, the Secretary need only show the employer violated the terms of the standard. Secretary of Labor v. Kaspar Electroplating Corp., 16 BNA OSHC 1517 (1993).
Sanderson Farms brings three challenges to the order of the OSHRC. First, Sanderson Farms contends that employers must, at the prima facie stage of enforcement proceedings, be given an opportunity to rebut the presumption of hazard incorporated in safety regulations. Second, Sanderson Farms contends that there is not substantial evidence to support the citation for the unguаrded arbor. Finally, Sanderson Farms contends that there is not substantial evidence to support the citation for the projecting key. We begin with the presumptions argument.
I.
Sanderson Farms maintains that a footnote in Bunge Corp. v. Secretary of Labor, requires that employers have an opportunity to rebut the presumption of hazard when determining whether a prima facie case for a violation has occurred. See 638 F.2d 831, 835 n. 6 (5th Cir. Unit A 1981) (“Since hazard is presumed, an employer would rebut the Secretary‘s case by showing no hazard arises from the particular condition.“). The Secretary counters that the footnote is more accurately characterized as a summary of the de minimis affirmative defense, which serves as an opportunity for the employer to show that a violation of a safety standard presents no hazard. We agree with the Secretary.
An occupational safety and health standard may only be promulgated if “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”
There has been no OSHRC, ALJ, or federal court decision adopting Sanderson Farms‘s reading of the Bunge Corp. footnote. In contrast, it is widely accepted that lack of hazard is an affirmative defense to a prima facie case establishing violation of a safety standard. See Mark Rothstein, OCCUPATIONAL SAFETY AND HEALTH LAW § 5:24 (2015). This affirmative defense characterizes violations as de minimis when an employer shows that the violation has “no direct or immediate relationship to safety or health.”
II.
Sanderson Farms was found to be in violation of
A.
“[T]he test for the applicability of any statutory or regulatory provision looks first to the text and structure of the statute or regulations....” Secretary of Labor v. Unarco Commercial Products, 16 BNA OSHC 1499 (1993). Title
All exposed parts of horizontal shafting seven (7) feet or less from floor or working platform, excepting runways used exclusively for oiling, or running adjustments, shall be protected by a stationary casing enclosing shafting completely оr by a trough enclosing sides and top or sides and bottom of shafting as location requires.
The text renders the regulation applicable only to horizontal shafting of a mechanical power-transmission apparatus. An arbor is defined as “a principal supporting rod or bar; a metal shaft or axis on which a revolving cutting tool ... is mounted.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY (1993) (emphasis added). Shaft is defined as “a bar that is commonly cylindrical and solid but sometimes hollow, especially when of large diameter, and is used to support rotating pieces ... or to transmit power or motion by rotation.” Id. Therefore, plain dictionary meanings of arbor and shaft call for the conclusion, supported by the record, that the regulation is applicable.
Testimony at thе hearing established that the arbor is a cylindrical sleeve that slides over the motor shaft. It is connected to the motor shaft by two screws as if to make it one piece of shafting. The arbor and motor shaft provide power and rotate the sawblade; without both the arbor and motor shaft, the sawblade would not spin. Thus, the ALJ did not err when she found that the arbor was a “vital аnd integral part of the power transmission apparatus.”
B.
To prove knowledge, “the Secretary must show that the employer knew of, or with exercise of reasonable diligence could have known of the non-complying condition.” Trinity Industries v. OSHRC, 206 F.3d 539, 542 (5th Cir.2000). Substantial evidence, therefore, must show that Sanderson Farms knew, or should have known, that the arbor was unguarded shafting of a mechanical power-transmission apparatus located less than seven feet from the floor.
A maintenance program, such as the one operated by Sanderson Farms, that fails to recognize or remedy hazardous conditions can be a basis for knowl-
C.
“A violation of [a safety standard] is designated as serious, not serious, or de minimis.” Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1031 (5th Cir.1989). The ALJ charаcterized the unguarded arbor as serious, but of low gravity. There is substantial evidence in the record to support this finding.
A serious violation exists “if there is a substantial probability that death or serious physical harm could result from [the] condition[s].”
Sanderson Farms nevertheless argues that there is not substantial evidence to support the characterization of the violation because no employee had ever been injured using the cutting saw. But, safety regulations are preventative, not reactionary and the absence of injury is not evidence of the absence of danger. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir.1974). Therefore, there is sufficient evidence to support the ALJ‘s characterization of the violation as serious but of low gravity.
The petition for review is denied for the violation of
III.
Sanderson Farms also challenges the citation under
Title
For example, the projecting shaft end standard states that “[u]nused keyways shall be filled up or covered.”
The Secretary and ALJ erred when applying
CONCLUSION
The petition for review is DENIED as to the unguarded arbor and GRANTED as to the projecting key.
UNITED STATES of America, Plaintiff-Appellee v. Michael GLUK; Michael Baker, Defendants-Appellants.
No. 14-51012.
United States Court of Appeals, Fifth Circuit.
Jan. 25, 2016.