A company appealed an OSHA citation, arguing a hazard wasn’t reasonably predictable, therefore the fine should be thrown out. How did a judge rule?
An employee at Norman W. Fries Inc., d/b/a Claxton Poultry Farms in Claxton, GA, suffered a compound fracture to his left forearm when it was pulled into a conveyor.
OSHA issued Claxton Poultry a serious violation of 1910.212(a)(1) for failure to guard the ingoing nip-point on the conveyor with a $12,675 fine, the maximum for a serious citation.
A supervisor had told an employee to clean the floors around the conveyor. As the employee picked up a piece of fallen chicken, his hand got caught in the underside of the conveyor belt. It was pulled into the ingoing nip-point of the conveyor.
An OSHA inspector concluded employees were exposed to a caught-in hazard caused by the ingoing nip-point on the underside of the conveyor belt.
Claxton Poultry appealed the violation to the Occupational Safety and Health Review Commission (OSHRC).
The key issue in the appeal was whether OSHA met its burden to establish employees were exposed to a hazard as alleged in the citation.
The OSHRC has a test for employee exposure based on the principle of “reasonable predictability.”
In other words, OSHA has to prove it’s reasonably predictable that employees are or will be in the zone of danger.
The OSHRC administrative law judge found OSHA didn’t meet its burden of proof.
The inspector suggested there were three ways in which an employee could be caught in the conveyor, two of them requiring the employee to lose their balance. But the judge said OSHA didn’t present any evidence that was reasonably predictable, and that the injury itself wasn’t enough for OSHA to prove its point.
The judge said there was no evidence that:
- any employee had ever been exposed to the underside of the conveyor belt as a result of losing his or her balance and inadvertently reaching into it
- it was normal for chicken to fall under the conveyor
- it was normal for employees to pick up chicken from under the conveyor by hand, and
- the job of cleaning the floor required coming close to the conveyor belt.
The judge threw out the violation and fine.
(Secretary of Labor v. Normal W. Fries Inc., OSHRC No. 17-0304, 9/24/18.)
