Birdsboro Kosher Farms Corp.

Read the official release (oshrc.gov)

Plain-English summary

Birdsboro Kosher Farms operated a large poultry-processing facility with a history of OSHA citations and settlements addressing lockout/tagout and occupational noise. The judge found that Birdsboro still lacked required machine-specific energy-control procedures, adequate authorized-employee training, and periodic inspections after repeated notice of those duties. Two lockout violations were willful and one was repeat, with a grouped $124,709 penalty. The judge also affirmed violations involving a floor opening, two exit-signage locations, noise controls, audiometric and hearing-protection requirements, contaminated protective equipment, and noise-exposure records. One exit-signage instance was vacated because OSHA did not prove the cited or alternative violation at that location. The affirmed items resulted in total penalties of $169,289.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.147(c)(7)(i)(A); 29 C.F.R. § 1910.147(c)(6)(i); 29 C.F.R. § 1910.23(a)(8); 29 C.F.R. § 1910.37(b)(5); 29 C.F.R. § 1910.37(b)(4); 29 C.F.R. § 1910.95(b)(1); 29 C.F.R. § 1910.95(g)(7)(i); 29 C.F.R. § 1910.95(g)(8)(ii)(B); 29 C.F.R. § 1910.95(i)(3); 29 C.F.R. § 1910.132(a); 29 C.F.R. § 1910.95(m)(2)(ii)(E)
• Outcome: Most lockout, floor, exit, noise, hearing, and PPE items were affirmed, one exit instance was vacated, and total penalties were $169,289.
• Key point: Repeated citations and settlement commitments established heightened awareness of lockout duties that the facility still failed to implement.

Full text (OSHRC public release)


BIRDSBORO KOSHER FARMS CORP., OSHRC DOCKET NOS. 16-1575, 16-1731

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO S .
16-1575, 16-1731

BIRDSBORO KOSHER FARMS CORP.,

Respondent.

Appearances:

Kate S. O’Scannlain , Solicitor of Labor

Oscar L. Hampton, III , Regional Solicitor

Michael P. Doyle ,
Regional
Counsel
for OSHA

Judson H. Dean , Senior Trial Attorney

U.S. Department of Labor,
Philadelphia, PA

For the Complainant

Joseph A. O’Keefe, Esq.

O’Keefe, Miller & Thielen, PC, Fleetwood, PA

For
the
Respondent

Before:   Carol A. Baumerich, Administrative Law Judge

DECISION AND ORDER

Birdsboro Kosher Farms, Inc. (Birdsboro or Respondent)
operates a poultry processing
facility
located at 1100 Lincoln Road, Birdsboro, PA. (Stip. 1.) Both it and
a
predecessor operating at the same location have
a history of violating provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§
659(c) (the
OSH
Act). This matter concerns
an inspection of the facility
by the
Occupational Safety and Health Administration (OSHA)
that began
on March 2, 2016. This investigation
led to
the
Secretary of Labor (Secretary) issuing three Citations to
Birdsboro on
September 2, 2016. 1 These
Citations, as amended,
include
alleged
violations
of the
lockout/tagout (LOTO)
standard. The Secretary alleges, in the alternative, that the
LOTO
violations
should be characterized as
willful, repeat or serious. The Citations also allege
serious
violations of
standards
related to floor holes, exits, noise exposure, and personal protective equipment (PPE).

Citation 1 includes
three separate items and
was issued
on September 2, 2016, at the close
of inspection number 1132233. On the same day,
Citations 2 and 3, each with multiple separate items,
were issued when
inspection
number
1131470
concluded. 2 Birdsboro filed timely notices of contest bringing the matters before the Occupational Safety and Health Review Commission (the Commission). 3 The
contest
related to inspection number 1132233 was assigned
Docket No. 16-1775 and the
contest
related to inspection number 1131470 was assigned Docket No. 16-1731.

These two dockets were consolidated before the hearing, which was held in Reading, Pennsylvania on April 16, 17, 18, 2018 and August 10, 2018. Both parties filed post-hearing briefs.

For the reasons discussed, these alleged violations are affirmed: from Docket No. 16-1775, Citation 1, Items 1a, 1b and 1c; and, from Docket No. 16-1731, Citation 2, Item 1; Instances (a)
and (e) of Citation 2, Item 3b; Citation 2, Item 4; Citation 2, Items
5a, 5b and 5c; Citation 2, Item 7; and Citation 3, Item 2. Instance (d) of Citation 2, Item 3b from Docket No. 16-1731, is vacated.

Jurisdiction

Respondent has a principle place of business in Birdsboro, PA, where it employs over two hundred employees. (Tr. 477; Stip. 1.) It engages in a business affecting commerce within the meaning of
sections 3(3) and 3(5) of the OSH Act, 29 U.S.C.
§ § 652(3), (5). (Stip. 4.) As such, it is an employer within the meaning of the OSH Act. (Stip. 3.) The Commission has jurisdiction over the parties and subject matter of this case. (Stip. 2.)

Factual Background

I. Current
Management Employees

Birdsboro
operates a
large poultry processing
facility
at 1100 Lincoln Road in Birdsboro, Pennsylvania. It has
over two-hundred
and fifty
employees
working in several different
areas. (Tr. 42-44, 477; Resp’t Br. at 10.) It has approximately fifty different machines, some with multiple energy sources. (Tr. 44; Resp’t Br. at 10.)

Solomon
Wieder
is
the Director of Operations (Operations Director)
and has always been involved in safety at the facility. (Tr.
167,
437; Resp’t Br. at 11.) Before accepting his current position
in January 2013, he served in a few other leadership roles
at the facility, including part-owner and CEO,
from 2009 until mid-2012. (Tr. 478-81, 494.) At the time of the Citation, his
direct reports
included
Luisa
Murray-Garcia, the Human Resources Manager (HR Manager). (Tr. 186.) Ms. Murray-Garcia
worked for the company since 2013. (Tr. 187.) She
is responsible for employee safety and health along with payroll, recruiting, hiring, and workers’ compensation
claims. (Tr. 189-90, 239-40, 307.) The company had a high turnover and had difficulty keeping some positions filled. (Tr. 309-10.)

Carlos Urieta is Birdsboro’s
Superintendent. (Tr. 35.) He has been Superintendent for six years. Id.
He
worked in a few different capacities before becoming
Superintendent. (Tr. 35-38.)

Pernell Reid is
the facility’s Maintenance
Manager. (Tr. 747-48.) He started working for Birdsboro in 2015 in the maintenance department. (Tr. 748-49.)

At the start of the OSHA investigation
in 2016, Brandon Criswell led the maintenance department. (Tr. 50; Resp’t Br. at 10.) After he left,
Mr. Reid assumed his
responsibilities and was eventually promoted to Maintenance Manager. (Tr.
50,
749-52; Resp’t Br. at 14.) He reports to both Mr. Wieder and Mr. Urieta. (Tr. 194-95.) The maintenance department has between four and six employees. (Tr. 49.)

I.
   Corporate
History

Birdsboro’s facility
has been operated as a poultry processing plant for several years, albeit with different ownership structures. (Tr. 478-84; Stip. 1.) In 2009, Mr. Wieder, his father, and another business partner purchased the business and named it “Mehadrin Kosher Poultry” (Mehadrin). (Tr. 479.) In 2010, a new company called MVP Kosher Foods, LLC (MVP) was formed and it purchased the business from Mehadrin. (Tr. 480.) Mr. Wieder continued to work at
the facility
as
MVP’s
CEO
and was on the Board of Directors. (Tr. 481.) He was essentially the top person at the
facility. Id. He remained in this role
from
when the business was
purchased by
MVP until mid-2012. (Tr. 480-81.) For a few months after Mr. Weider’s departure
MVP
continued to operate
the plant
without him. (Tr. 482.) Then, in late 2012, MVP ceased operations
and the facility temporarily closed. (Tr. 482, 498.)

Another company, Birdsboro, purchased the business and resumed operations at the facility shortly thereafter in January 2013. (Tr. 482-84.) When the facility re-opened, Mr. Wieder returned to work
at the facility, this time
for Birdsboro as the Operations Director. (Tr. 437, 482-83.) Several other key employees of MVP, such as Mr. Urieta, also returned to work
at the facility after Birdsboro resumed operations. (Tr. 39-41, 43, 483-85.)

I.
   History of Citations

Both Birdsboro and
its predecessor,
MVP,
were cited
for violations of the OSH Act. In
February
2012, while Mr. Wieder was still CEO of the facility, OSHA commenced an investigation. (Tr.
481, 486, 494.) This investigation led to the issuance of citations
to MVP
in August 2012
(2012 Citations). These
2012 Citations
included, among other things,
three
serious
violations of the LOTO standard, 29 C.F.R. § 1910.147, and
one
serious
violation of
the
standard concerned with
occupational
noise exposure, 29 C.F.R § 1910.95(c). (Tr.
487-92; Ex. C-54
at 6-8, 31.)

After Birdsboro took over the
facility,
Mr. Wieder, the Operations Director, reviewed the 2012 Citations to assess whether
the violations had occurred and
whether
Birdsboro would be able to abate the violations. (Tr. 498.) After concluding
it
could
comply,
the company
entered into a settlement agreement with OSHA on August 7, 2013 (the 2013 Settlement Agreement). (Tr.
498,
501;
Ex. C-57.)

Mr. Wieder
also
reviewed this
2013 Settlement Agreement,
by
which Birdsboro: (1)
accepted the violations
that had been issued to MVP,
(2)
agreed to pay $10,000, and
(3) agreed
to take various abatement actions
to
address the violations. (Tr. 499;
Ex. C-57.) Mr. Wieder was responsible for ensuring Birdsboro complied with the agreement. (Tr. 501.)

The Superintendent
acknowledged that the management in place before 2013 was not concerned about safety. (Tr. 168-69; Resp’t Br. at 11.) However, by
the time of 2013 Settlement Agreement, Birdsboro had a dedicated health and safety manager, Steve Shifflet. (Tr. 188-89, 502.) He reported directly to Mr. Wieder and was hired to ensure compliance with OSHA and regulations issued by the United States Department of Agriculture (USDA). (Tr. 502-3.)

A
few months
after Birdsboro signed the 2013 Settlement Agreement, OSHA
inspected the facility again. This inspection resulted in the issuance of several citations
on June
10,
2014
(2014 Citations). 4 (Ex. C-39.) The 2014 Citations
included
violations related to the same LOTO and hearing protection standards that were resolved by the 2013 Settlement Agreement. Specifically, the
2014 Citations
included: (1)
a repeat violation
of
29 C.F.R.
§ 1910.147(c)(4)(i),
for insufficient LOTO procedures; (2) a serious violation of 29 C.F.R. § 1910.147(c)(6)(i),
for
failing
to conduct periodic inspections
of the
company’s
energy control procedure; (3) a serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A),
for failing
to appropriately
train
employees
about energy isolation and control; and (4) a repeat violation of 29 C.F.R. § 1910.95(c)(1), for failing to have an effective hearing conservation program.

Id.

In all, the 2014 Citations included fourteen violations, six of which were characterized as repeat. Id.

Mr. Wieder reviewed the
2014
Citations when they were issued. (Tr. 509.) He then, on
Birdsboro’s behalf,
executed
two
settlement agreements
(2014 Settlement Agreements) to resolve the
2014 Citations (one relating to the safety violations, including the LOTO standard, and one
relating to the violation
for lacking an effective hearing conservation program). (Tr. 512-13;
Exs.
C-44, 45.) In
the
2014 Settlement
Agreements, Respondent accepted the violations as issued, including the characterization of six of the violations as repeat, and agreed to pay $40,360 in penalties. 5
Id. Respondent also
agreed to retain a consultant to develop and implement a written health and safety program and
to
establish a program of at least monthly inspections. Id.

Around the same time as
when
the 2014
Settlement Agreements
were
reached,
the
health and safety manager (Shifflet) left the Birdsboro
facility.

(Tr.
188-89, 515.) Mr. Wieder then assigned key aspects of Respondent’s health and safety program to
Ms.
Murray-Garcia,
the HR Manager. (Tr. 196.) He had to delegate safety responsibility. (Tr.
504.) It was not possible for him to do it himself along with his other responsibilities. (Tr.
503-4.)

Ms. Murray-Garcia’s
new safety and health responsibilities were in addition to continuing her
human resources responsibilities, such as payroll and hiring. (Tr. 189-90, 239-40, 307.) When Mr. Wieder assigned the new duties
to her,
Ms. Murray-Garcia
had been working for Birdsboro for about a year. (Tr. 187.) She had no professional health and safety experience and,
when she began working for Birdsboro,
she did not know she would end up with responsibilities related to this area. (Tr. 187-88, 517.) Before making this change, Mr. Wieder did not ask Ms. Murray-Garcia anything specific about safety and health, such as her understanding of LOTO requirements or hearing conservation. (Tr. 198-99.) Still, she was
given
responsibility for all safety orientations and a large part of what had been
Mr.
Shifflet’s other responsibilities. (Tr. 189-90.)

Initially,
Mr. Wieder
planned to hire a full-time
health and safety manager to replace
Mr.
Shifflet. (Tr.
192,
195, 516.) He recognized that Ms. Murray Garcia did not have professional or educational experience with health and safety. (Tr. 517.) And he acknowledged that he himself
was not an expert in safety. (Tr. 443.) However,
Birdsboro
had difficulty recruiting someone at the salary
and benefit package
it wanted to offer. (Tr.
196-97.) So,
although
having
Ms. Murray-Garcia handle
employee
health and safety
was initially planned as temporary, she was still
responsible for this
area,
along
with
continuing
to fulfill
numerous other responsibilities, when
OSHA commenced another
inspection
over
a year later. (Tr. 192-93, 239-40, 516.)

Ms. Murray-Garcia
received some assistance with employee safety and health compliance after
Mr. Wieder
complied with the 2014 Settlement Agreements by retaining an outside consultant, Lancaster Safety Consulting, Inc. (LSCI), to assist with health and safety at the facility
for one year. (Tr. 190-3, 340-41, 515-16.) Jason Lancaster, LSCI’s Vice President for Operations, and Sarah Rothrock, a Project Coordinator, tried to assist Birdsboro in abating the 2014 Citations and to develop a health and safety program for the company. (Tr. 215, 337.)

Ms. Murray-Garcia
was responsible for making sure LSCI complied with the agreement for services and
she
served as LSCI’s point of contact at Birdsboro. (Tr. 201, 516; Resp’t Br. at 12.)

LSCI’s primary goal
for
the one-year
contract
was to ensure that
Birdsboro properly abated the
2014 Citations. (Tr.
340,
404-5, 516.) It was not tasked
with
ensuring day to day compliance. Id. LSCI
visited the site
four times, discussed what actions Respondent needed to take to
abate the violations,
and
provided
a
draft
document titled
Control of Hazardous Energy (the LOTO Plan)
to Respondent in October 2015. (Tr.
206, 340,
342, 344; Ex.
C-21.) The HR Manager
reviewed the LOTO Plan
and Mr. Wider
provided input on its development. (Tr.
268-69,
445-46.) The
LOTO Plan
included steps to de-energize machines powered by a single plug. (Ex. C-21.) However, it
needed to be supplemented
with LOTO procedures for
the specific
machines
at Birdsboro
with more than one source of energy and would also need to be updated as the facility acquired additional electronic equipment. (Tr. 348; Ex. C-21.)

A few months after LSCI provided the LOTO Plan, on March 2, 2016, OSHA commenced two
more
inspections of the facility. (Tr. 439, 555.) Inspection number 1132233 resulted in one Citation alleging willful violations of the LOTO standard being issued on September 2, 2016. Inspection number 1131470 led to one serious Citation, with eight separate items, and one other-than-serious Citation with four separate items
being
issued on September 2, 2106.

I. 2016 Citations

A.
   Withdrawn Items

Respondent timely contested the Citations. Several
violations
alleged
are no longer in dispute. At the hearing, the Secretary withdrew Citation 1, Item 2, from the Citation issued after inspection number 1132233. He also withdrew these items from the Citations issued
after
inspection number 1131470: Citation 2, Item 3a; Instances
(b)
and
(c)
of Citation 2, Item 3b; Citation 2, Item 5d; and Citation 3, Items 1 and 4. (Tr. 725-26; Sec’y Br. at nn. 2, 8.) After the hearing, the Secretary withdrew these additional items,
which were
also
from
the Citations issued after inspection number 1131470: Citation 2, Items 2, 6,
and 8, and Citation 3, Item 3. (Sec’y Br. at n. 8.)

A.
   Accepted Items

In its post-hearing brief, Respondent accepted Citation 2, Items 5a and 5b, which were
part of the Citations issued as a result of inspection 1131470. (Resp’t Br. at 20-21.)

A.
   Amended Items

Before the hearing, the Secretary moved to amend Citation 1, Items 1a, 1b,
and 1c, to allege, in the alternative, that the violations
should be characterized as
repeat. The amendment was granted without objection. (Tr. 12-13.) At the hearing, the Secretary moved to amend Instance
(d) of Citation 2, Item 3(b), which initially alleged a violation of 29 C.F.R.
§
1910.137(b)(5), to allege, in the alternative, a violation of 29 C.F.R.
§
1910.137(b)(4). (Tr. 128.) Respondent did not object to that
amendment
either
and it was
also
granted. (Tr. 131.)

A. Items to be Adjudicated

The remaining items still in dispute relate to the LOTO requirements, floor holes, exits, occupational noise exposure, and PPE. Specifically: Citation 1, Item 1a, which alleges
a willful,
repeat
or serious
violation of 29 C.F.R.
§
1910.147(c)(4)(i); Citation 1, Item 1b, which alleges
a willful repeat
or serious
violation of 29 C.F.R.
§
1910.147(c)(7)(i)(A); Citation 1, Item 1c, which alleges
a willful,
repeat
or serious
violation of 29 C.F.R.
§
1910.147(c)(6)(i); Citation 2, Item 1, which alleges
a serious violation of 29 C.F.R. § 1910.23(a)(8); Instances (a),
(d)
and (e)
of Citation 2, Item 3b, which allege serious violations
of 29 C.F.R. § 1910.37(b)(5); Citation 2, Item 4, which alleges
a serious violation of 29 C.F.R.
§
1910.95(b)(1); Citation 2, Item 5c, which alleges
a serious violation of 29 C.F.R.
§  1910.95(i)(3); Citation 2, Item 7, which alleges
a serious violation of 29 C.F.R.
§  1910.132(a); and Citation 3, Item 2, which alleges
an other than serious violation of 29 C.F.R.
§  1910.95(m)(2)(ii)(E).

Discussion

As a preliminary matter, Respondent
contends
the Citations at issue were “brought in contravention to OSHA’s field operations manual.” (Resp’t Br. at 10.) OSHA provides guidance to its inspectors in the form of a “Field Operations Manual,” which is often referred to as the FOM. (Tr. 668.) The
Commission has long held that
FOM does not create rights
or defenses.

FMC Corp. , 5 BNA OSHC 1707 , 1710
(No. 13155, 1977) ;
Johnson Controls, Inc ., 15 BNA OSHC 213 2 , 2143 n. 8 ( No.
89-2614, 1993) ( FOM is
a
guide for OSHA personnel).

Accordingly , even
if Respondent had evidence
of a failure
to comply with the FOM, such evidence would not alter its responsibility to comply with the OSH Act or relieve it from liability if it fails to do so.

While the FOM is not binding, the Secretary does have the burden of proving the violations alleged. T he Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) its terms were violated; (3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) one or more employees had access to the cited condition.  
Astra Pharm. Prods ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),  aff’d in relevant part,  681 F.2d 69 (1st Cir. 1982).

I. Citation 1,
Willful Violations of the LOTO Standard
(29 C.F.R.
§ 1910.147(c))

A. Citation 1, Item 1a
– Failure to Have Machine Specific LOTO Procedures

• 29 C.F.R.
  §
  1910.147(c)(4)(i)

Citation 1, Item
1a, alleges that, in violation of 29 C.F.R.
§
1910.147(c)(4)(i),
Respondent failed to develop sufficient LOTO procedures for various equipment:

Employees performed servicing and maintenance operations on chicken processing
and production equipment
including but not limited to
the AMFEC Mixer Model #510, the chamber machine … and frank-o-matic
and the employer had not developed machine specific lock out tag out procedures detailing the appropriate procedure to lock and tag the equipment out of service, thereby exposing employees to serious injury, on or about March 2, 2016.

At the hearing, the Secretary presented evidence regarding the lack of specific
LOTO
procedures for four machines: the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic. 6

1. Applicability
   and Violation

The LOTO standard covers the servicing and maintenance of machines in which the
unexpected
energization or start - up, or the release of stored energy could cause injury to employees. 29 C.F.R. §
191 0.147(a)(1)(i). “Servicing and/or maintenance” includes “cleaning” machines. 29 C.F.R.
§
1910.147(b). When
an employee is required to service or maintain a machine
with
the potential to energize, start-up, or release stored energy
without sufficient notice, an energy control program is required. See
Dayton Tire , 23 BNA OSHC 1247, 1250
(No. 94-1374, 2010),
aff’d in pertinent part, vacated in part , 671 F.3d 1249 (D.C. Cir. 2012). Energy control procedures must be “developed, documented and utilized for the control of potentially hazardous
energy when employees are engaged” in activities such as service, maintenance, or cleaning. 29 C.F.R.
§
1910.147(c)(4)(i).

Respondent does not
contest the standard’s
applicability
and the record would not support such a
position . ( Resp’t Br. 10-11.) Employees engaged in
routine cleaning,
service,
and maintenance activities for at least four specific machines
(the
chamber machine, the gizzard machine, the mixer
machine, and the frank-o-matic). (Tr.
49-52,
57,
60-61,
63,
756-57, 759-61.) This work could result in injuries
if the machines unexpectedly started up
during these
activities. (Tr.
52,
57, 64, 756-58, 761; Exs.
C-4,
C-5, C-6,
C-7.)

Rather than contesting
applicability, Respondent
argues
its LOTO program sufficiently addressed the four machines. (Resp’t Br. at
14.)

The Secretary disagrees. He argues that
Respondent’s program generically covered all machines and lacked
enough
detail
to permit employees to appropriately lockout
the four
machines with more than one source of energy. (Sec’y Br. at 19-21.)

The cited standard requires
LOTO procedures
that
specifically
address how to control hazardous energy
for each type of machine. 29
C.F.R. §
1910.147(c)(4). The procedures must be sufficiently specific to “enable
an employee to lock out a machine safely.” Drexel Chem. Co.,
17 BNA OSHC
1908, 1913 (No. 94-1460, 1997) . When employers have different types of machines,
it is unlikely
a single
identical
LOTO procedure will be effective for all machinery. Id . In particular, g eneric LOTO procedures are not permissible for
machines
with
more than one source of energy. 7 29 C.F.R.
§
1910.147(c)(4)(i) ;
Angelica Textile Servs., Inc. ,
27 BNA OSHC 1246, 1255
(No.
08-1774, 2018)
(finding procedures
inadequate
when they f ailed to account for each energy source) ,
appeal docketed , No. 18-2831 (2d Cir. Sept. 21, 2018) .

As noted, as part of the resolution of
the
2014 Citations for
failing to comply
with the LOTO
standard, Birdsboro
hired
LSCI, who, among other things, developed materials about energy control, including the LOTO Plan. (Tr. 190-91, 208, 344; Exs.
C-21,
C-44, C-45.) This
LOTO Plan provides background on the control of hazardous energy, including the text of the LOTO standard. (Ex. C-21.) It has
a
detailed standard procedure for single energy source/single
plug machines. Id.
at 42. In other words, the LOTO Plan provides the steps on how to de-energize only
those
machines
with
one source of energy that can be
controlled
by removing a single plug. Id. The LOTO
Plan
notes
that machines can have multiple energy sources but does not include
LOTO
procedures for
such
equipment. Id.
at 7.

Respondent concedes
its
LOTO
Plan
lacks
machine specific procedures for
the
four specific machines
(the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic). (Resp’t Br. at 14; Tr. 209-11,
450,
763.) Each of these machines had two sources of energy—electric and pneumatic. (Tr. 52, 57, 61, 756-58, 760.) While the LOTO
Plan
instructs employees
on
how to de-energize machines
with
a
single energy source
powered by a single plug,
it
does
not
address
how to control
the
pneumatic
sources of
energy
for the four machines at issue. (Tr. 450-51;
Ex.
21.)

Respondent claims that
although the LOTO Plan lacked this information,
“LOTO machine specific procedures for the chamber machine, a
frank o matic, a mixer, and a gizzard machine … were developed separately for the USDA.” (Resp’t Br. at 14.) But, it neither offered nor introduced any evidence of these
or any other machine specific
procedures. 8
See Capeway Roofing Sys. Inc ., 20 BNA OSHC 1331, 1342-43 (No. 00-1968, 2003) (party would have provided the evidence had it been helpful),
aff’d , 391 F.3d 56 (1st Cir. 2004).

Mr.
Reid, the current Maintenance Manager, acknowledged that the Birdsboro lacked machine specific procedures in 2016. (Tr.
763-64.)

Although
Mr. Wieder referred to a “plan for USDA,” he acknowledged that he had not seen
“USDA documents” for the four machines the Secretary discussed as having multiple energy sources
and they were not part of the LOTO Plan in place at the time of the Citation. (Tr. 443-44, 450.) Nor were
any such procedures
provided to LSCI. (Tr. 371, 412, 424-25.) Indeed,
after March 2, 2016 (the date referenced in the Citation), Respondent had LSCI come
back and create,
for the
first
time,
machine specific
LOTO procedures. 9 (Tr.
414-15,
453-54; Resp’t Br. at 15.) If
Birdsboro had machine specific LOTO procedures,
retaining LSCI to develop the procedures after the inspection started
would not have been necessary.

Respondent also cites its
Lockout/Tagout Periodic Inspection
Forms as
evidence of appropriate
machine specific procedures. (Resp’t Br. at 14.) There were no inspection forms for the
chamber machine, the mixer
or the frank-o-matic. (Ex.
C-19.) One form
indicates that
Mr.
Criswell, the Maintenance Manager
at the time, reviewed the energy control procedures for the gizzard machine with one employee
on January 10, 2014. 10
Id.
at 1. This document
indicates
he reviewed the employee’s understanding of lockout
procedures
for that machine
but provides no
information as to what procedures
the employee followed
during the
review
to
safely control hazardous energy. Id. At best,
the form suggests
that, two years before the
2016 OSHA
inspection,
one employee showed Mr. Criswell how he locks out the gizzard machine. Id. There is no evidence the other
twenty employees who might need to clean or maintain the machine understood how to
safely
lockout the machine
to control hazardous energy. (Tr. 48-49; Resp’t Br. at 10.) Nor is there evidence that the
lockout
procedure
used
for the gizzard machine, or
the procedures for
any of the other machines with multiple energy sources, was
documented
as of the date referenced in the Citation. 11 Thus, there is no evidence
Respondent had
machine specific procedures
with
enough information to permit employees to safely lockout machines with more than one energy source.

By
not addressing
all
sources
of energy for the four different machines, Respondent’s
LOTO
program
failed to
provide enough information to
permit
employees to lock the machines out and protect themselves from unexpected energization. See
Drexel,
17 BNA OSHC at 1913
(requiring that
LOTO procedures inform the employee of the “[s]pecific procedural steps” necessary to perform the lockout process). Respondent violated the cited standard.

1. Exposure

Employees routinely
engaged in service and maintenance activities on the four machines. The chamber machine
vacuum seals product into packing by sucking the air out of
the bag containing product and then sealing it. (Tr. 56, 756.) It
was used at least weekly
and sometimes
as often as once a day. (Tr. 57, 756.) Maintenance employees serviced and repaired the machine.

Id.

This
sometimes required taking
the machine
apart. (Tr.
756-57.) If the chamber machine was not properly locked out,
the machine’s moving parts could injure an employee. (Tr. 57; Ex. C-5.)

The gizzard machine
separates
the gizzard
from the rest of the animal. (Tr.
62-63, 759; Ex. C-7.) It had
several
different gears and
had
to be taken apart and cleaned at the end of every day it was used. (Tr.
63,
760.) The machine
frequently broke down
and had to be
repaired. (Tr. 63, 761.) Like the chamber machine, the gizzard machine’s moving chains and gears could cause injury if the machine was not properly locked out before cleaning or repairs commenced. (Tr.
63-64.)

The mixer machine was used once or twice a week and had to be cleaned after each use. (Tr.
49-50.) Maintenance workers
occasionally
serviced or repaired
it. (Tr. 50.) The
mixer’s interior
panels spin when in operation
and it should be locked out
for service or maintenance. (Tr.
51-52; Ex. C-4.) In February 2016, an employee put his hand in the mixer and was injured. (Tr.
414.)

The frank-o-matic was less frequently used
than the other three machines. However, it was still operated at least once a month, and sometimes as often as once a week. (Tr. 60, 758-59.) It required cleaning after
each
use and sometimes had to be serviced or repaired. (Tr. 60-61, 759.) During these activities,
the machine should be
properly locked out. (Tr
61; Ex. C-6.) The Secretary showed that employees were required to service or maintain machines with multiple energy sources and were exposed to the hazard of unexpected energization.

1. Knowledge

Respondent was previously cited for a lack of LOTO procedures. (Tr.
199-200, 207; Ex.
C-39.) The 2014 Citations included a violation of
the same
LOTO
provision at issue here, 29 C.F.R.
§  1910.147(c)(4)(i), for failing to have machine specific
LOTO procedures. (Ex. C-39 at 13.) That
2014
violation was
itself
characterized as
repeat
because the 2012 Citations
included a
serious
violation
for not having machine specific energy control procedures for all required equipment. (Exs.
C-39 at 13;
C-54 at 6.) As noted above, Respondent accepted the 2014 violation of 29 C.F.R.
§  1910.147(c)(4)(i), including its repeat characterization. (Exs. C-39, C-44.)

Mr. Wieder,
the Operations Director,
was aware of both
prior violations of 29 C.F.R.
§  1910.147(c)(4)(i).

(Tr. 498-99, 509.) In particular, he
admitted that he closely looked at
the
2012 and
the 2014 Citations. Id. He
understood
that the LOTO standard requires machine specific procedures.

Id. Ms. Murray-Garcia, the HR Manager
handling safety,
was
similarly
aware that the Birdsboro was cited for not having machine specific-LOTO procedures
in 2014. (Tr. 199-200, 207-8; Resp’t Br. at 12.)

After
the
2014 Citations, Birdsboro took steps to develop a LOTO program. (Tr. 190-91; Ex. C-21.) LSCI provided it with
information about the control of hazardous energy. Id. This information included a
LOTO Plan
LSCI described
as a
“first draft.” (Tr.
344.) As the HR Manager acknowledges,
the LOTO Plan
LSCI
provided in 2015
anticipated
machine specific procedures
being
added
to it. (Tr. 206-7.) Further, in
over half
a
dozen emails sent
over
its one-year contract, LSCI
repeatedly
reminded
the HR Manager of the need for
machine specific LOTO procedures. (Tr. 219-20,
228-9, 231-39,
280,
407-10,
412-13,
424; Ex. C-46.) Despite these regular reminders, Respondent never developed the necessary machine specific procedures
before
the
date alleged in the Citation. 12 (Tr.
211, 280.) See E. Smalis Painting
Co., Inc. ,
22 BNA OSHC 1553, 1562, 1566
(No. 94-1979, 2009) (finding actual knowledge when
the
employer failed to take reasonable and necessary steps to address the known hazard).

Respondent’s
actual knowledge that it was not in compliance
with the cited standard
satisfies the Secretary’s
burden
of proving
the violation alleged in
Citation 1, Item 1a. See Dayton,
23 BNA OSHC at 1256
(finding
actual knowledge of the failure to utilize LOTO procedures).

1. Characterization

The Secretary alleges the violation is willful, or, in the alternative, repeat
or serious.

( Tr. 7, 11.)

A willful violation is one committed voluntarily with either an intentional disregard of, or plain indifference to the OSH Act’s requirements. See e.g.,
Bianchi Trison Corp ., 409 F.3d 196, 208 (3d Cir. 2005). “[A]n employer's prior history of violations, its awareness of the requirements of the standards, and its knowledge of the existence of violative conditions are all relevant considerations in determining whether a violation is willful in nature.” MJP Constr. Co ., 19 BNA OSHC 1638, 1648 (No. 98-0502, 2001),
aff'd , 56 F. App'x 1 (D.C. Cir. 2003)
(unpublished). The motive for failing to comply with the OSH Act “need not be evil or malicious” for the violation to be characterized as willful. Kaspar Wire Works, Inc ., 18 BNA OSHC 2178, 2181
(No. 90-2775, 2000),
aff'd , 268 F.3d 1123 (D.C. Cir. 2001);
Dukane Precast, Inc ., 785 F.3d 252, 255 (7th Cir. 2015) (employer’s reckless behavior sufficient to characterize the violation as willful).

As noted, Mr. Wieder, the Operations Director,
and
Ms. Murray-Garcia,
the HR Manager,
were aware that the cited standard applied to Birdsboro’s operations because of the 2014
Citations. Those citations
included a repeat violation of the same standard cited in connection with
this
Item 1a, 29 C.F.R.
§  1910.147(c)(4)(i). (Ex. C-39 at 14.) Just like the present matter, the 2014
violation
also
concerned
Respondent’s failure to develop machine specific LOTO procedures. Id. Mr. Wieder executed
the
2014 Settlement Agreements resolving this violation. (Tr. 512; Ex. C-44.) See Revoli Constr . Co., Inc. , 19 BNA OSHC
1682, 1685-86 (No. 00-0315, 2001)
(employer had heightened awareness of the standard because it was previously cited for violations of the same standard).

Even before
the settlement of the 2014 Citations, Mr. Wieder
knew
the facility needed a LOTO program. In
February
2012,
when OSHA commenced an inspection of the facility,
he was the CEO of MVP, the company that owned the facility. (Tr. 480,
486.) Although he was not working for MVP when the 2012 Citations were issued, he
was
aware of them
and reviewed them
when he returned to work at the facility for a subsequent owner in January 2013. (Tr. 482-83, 486.) He also
reviewed and provided input on the agreement
resolving
the 2012 Citations. (Tr. 498-99.) That agreement (the 2013 Settlement Agreement) acknowledged Birdsboro’s acceptance of a violation of 29 C.F.R.
§  1910.147(c)(4)(i),
which is the requirement to have
sufficiently developed, documented,
and utilized procedures for the control of hazardous energy,
as well as
its acceptance of
two
additional
serious violations of other provisions of the LOTO standard. (Exs. C-54,
C-57.) So, in 2013,
Respondent resolved the 2012
Citations, including the
LOTO violations,
by accepting responsibility and paying a penalty and,
in
the following year, it resolved additional
LOTO violations by again accepting the violations and paying another penalty. 13 (Exs. C-44, C-45, C-57.) By the time of the
most recent
inspection,
Birdsboro
was well aware of the
necessity
for
written
procedures that specifically
address
how to de-energize machines
with
multiple energy sources. See
MJP , 19 BNA OSHC at 1648 (supervisor chargeable with knowledge of the requirement “based on their prior work experience, wherever that experience originates”);
Altor, Inc.,
23 BNA OSHC 1458, 1467 (No. 99-0958, 2011) (citations of
the
same standard previously issued to other companies owned by the same individuals considered to show heightened awareness);
S. Scrap Materials, Co., Inc. , 23 BNA OSHC 1596, 1619-20 (No. 94-3392, 2011) (settlement of prior citations of
the
same standard supported willful characterization),
aff’d , 498 F. App’x 145 (3d Cir. 2012)
(unpublished).

Because OSHA did not demand further abatement after
Respondent
provided information
to the agency
as part of the 2014 Settlement Agreement,
Respondent argues it
could reasonably
infer it
was
fully compliant with
the LOTO standard. (Resp’t Br. at 15.) Such an inference is wholly inappropriate here as both
the HR Manager
and
the Operations Director,
Mr. Wieder,
knew
Birdsboro needed
to take additional steps to come into and remain in compliance. Indeed, one of the conditions of the 2014 Settlement Agreement was for
Birdsboro
to retain a consultant for at least one year to
develop
a written health and safety program. (Exs. C-44, C-45.) See
A. Schonbek
& Co., Inc .,
9 BNA OSHC
1189,
1190
(No. 76-3890, 1980)
(upholding willful
characterization
when
the
employer was aware of the general hazard
even though past
violation related to
a different machine),
aff’d , 646 F.2d 799 (2nd Cir. 1981).

Although Respondent
complied with the requirement to
retain
a consultant
to assist with coming into compliance
and
the
development of
a health and safety program, it failed to follow
the consultant’s
advice. Ms. Murray-Garcia,
the HR Manager
overseeing safety,
knew the general LOTO
Plan
lacked
machine specific LOTO procedures. (Tr. 206-7, 223.) The document itself references the
need for machine specific LOTO procedures. (Tr. 269-73; Ex. C-21 at 0239.)

For example, it includes
placeholders for “equipment specific LOTO procedures” and
procedures for
“New Equipment”
to be added to the document. 14

(Tr. 206-7;
Ex. C-21
at
0236,
0239.)

See
Active Oil
Serv., Inc. , 21 BNA OSHC
1092,
1098, 2004-09
(No. 00-0482, 2005)
(finding heightened awareness based on a pr ior
citation and
the content of
the employer’s
written safety program) .
The HR Manager
reviewed
these
blank pages
on which
equipment specific information was to be added, as well as the rest of the LOTO Plan. (Tr.
268-71, 273.)

Further,
LSCI specifically
informed
Respondent
multiple times about
the need for
machine specific
procedures to be developed. 15 (Tr.
226-29, 231-35, 238-39, 276; Exs. C-46, C-49.)

For example, LSCI
told
the HR Manager
to have “machine LOTO procedures on file and up to date.” (Tr. 238-39; Ex. C-46 at 1.) These written reminders, which the HR Manager acknowledges were supplemented with telephone conversations,
preclude finding
Respondent’s
failure to develop the
procedures on how to lockout
and tagout machines with multiple energy sources was mere negligence. 16 (Tr. 226, 233; Ex. C-46.) See Rawson Contractors, Inc.,
20 BNA OSHC 1078, 1082 (No. 99-0018, 2013)
(hiring outside consultant to monitor compliance “insufficient to negate willfulness” when the
employer failed to enforce safety rules).

Respondent
relies on
Dayton Tire
v. Sec’y of Labor , 671 F.3d 1249 (D.C. Cir. 2012) as support for characterizing the violations
as serious. (Resp’t Br. at
6-8.) In
Dayton ,
like here,
the employer was previously cited for violating the LOTO standard. 671
F.3d
at
1255. After the
citation, the employer failed to correct similar deficiencies at another
location. Id . The Commission determined
the violation was willful because
the employer either knew the second facility was in violation of
the LOTO standard or
it
was unwilling to investigate its
compliance. Id.
at 1255-56. The D.C. Circuit
disagreed that
this was
enough
to
characterize the employer as being plainly indifferent to safety. Id .

Here,
the evidence
of willfulness
is stronger. First,
this matter
involves
citations issued to
the same
employer for violations of the same standard at the same
facility. 17 The present matter is more like the situation in
A.J. McNulty & Co. , 283 F.3d 328
(D.C. Cir. 2002), than the one in
Dayton . In
A.J. McNulty ,
the employer had
twice
previously settled violations of the
fall protection standard. 238 F.3d
at 338. When cited
for
a third time, the D.C. Circuit found the violation willful
because the
employer
was
aware of the regulation, failed to comply
with it, and lacked a good faith belief it was
in compliance. Id. Similarly,
at Birdsboro’s facility,
supervisors
had actual knowledge of
past
citations
for
this same
LOTO
standard as well as other
violations
related to LOTO. In particular,
Mr. Wieder, the Operations Director,
acknowledged his involvement
with the resolution of two prior citations for the same sub-section of the LOTO standard. (Tr. 498-99, 509.) See Anderson Excavating & Wrecking Co ., 17 BNA OSHC 1890, 1892-93, 1995-97 (No. 92-3684, 1997)
(relying on
employer’s
history of recent citations for violations of the same standard as part of willful determination ),
aff'd , 131 F.3d 1254 (8th Cir. 1998). The HR Manager
responsible
for safety, was
also
aware of the
2014
LOTO violations. (Tr.
199.) Knowledge
from this past violation
was supplemented
with information from Ms. Rothrock of LSCI, who
specifically, and repeatedly, reminded
Birdsboro
it
needed to have machine procedures “on file and up to date.”

(Ex. C-46.) See Thomas Indus. Coatings, Inc ., 23 BNA OSHC 2082, 2092 (No. 06-1542, 2012) (finding violation willful because the employer was familiar with the
requirements of the cited standard and could not have believed its arrangements were adequate).

Second,
unlike
Dayton , there is no need to guess whether Respondent knew machine specific procedures were required
for this facility
and that they did not have them.

(Tr.
200,
208-9, 231,
238-40; Ex.
C-21.) Respondent chose not to
prepare machine specific procedures even after
its consultant
explained they were needed. (Ex. C-46.) It knew it
needed a LOTO program which guided employees in how to control hazardous energy, knew its LOTO Plan was incomplete, and still failed to act until after an employee injury and another OSHA inspection. See
Jim Boyd Constr., Inc. , 26 BNA OSHC 1109, 1111
(No.
11-2559, 2016)
(violation willful when employer knew both the facts and legal requirements);
Hern Iron Works, Inc. , 16 BNA OSHC
1206,
1214  (No. 89-433, 1993)
(“A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions ” ) .

Third,
in this matter,
Respondent’s conscious actions were
part of
an on-going failure to prioritize safety. 18

See
A.E. Staley Mfg. Co. v. Sec’y of Labor , 295 F.3d 1341, 1346 (D.C. Cir. 2002) (affirming a finding of plain indifference when the company ignored repeated general reports from a safety engineer). For example, the HR Manager acknowledged she had many responsibilities, particularly after Respondent chose not to replace its health and safety manager after Mr. Shifflet left in 2014. (Tr. 192, 516-17.) Mr. Shifflet had been a full-time employee tasked with oversight for environmental, health and safety. (Tr. 189.) Almost all of his responsibilities were shifted to Ms. Murray-Garcia, who already was a full-time employee overseeing the human resources department. (Tr. 189, 192.) She had no formal safety and health training or experience. (Tr. 453.) The only assistance she had at the facility was a part-time receptionist who was hired sometime in 2016. (Tr. 194-95.) The facility had a high turnover of employees and difficulty retaining employees for some positions, such as those in the
Kill
Room,
because of the unpleasant nature of
the work. (Tr. 309-10.) Preparing the documentation necessary to abate the 2014 Citations was not given “high priority.” (Tr. 240.) In
light of her
human resources tasks,
Ms. Murray Garcia
did not have enough time
to address getting the abatement documentation to OSHA. (Tr. 233, 240.)
Ms. Rothrock of LSCI expressed her belief
that
Ms. Murray-Garcia had many responsibilities besides
safety,
and this
complicated
the effort to
bring the facility into compliance. (Tr. 416-19.) Indeed,
Ms. Rothrock
was “not surprised” when
Ms. Murray-Garcia called
in
2016
and requested additional services, including the development of the machine specific procedures
Ms. Rothrock
had repeatedly
asked
Respondent
about. (Tr. 425-26.)

Whether these actions alone would be sufficient to sustain a willful characterization, is an unnecessary question. There is no need to
guess
how Respondent would have behaved if it
was aware
of the requirement. Respondent
knew it needed machine specific procedures and yet it failed to develop them. Compare Thomas Indus.,
23 BNA OSHC
at
2092
(finding violation willful when the employer was aware of the requirement and
made a conscious decision not to comply),
with
E. Smalis,
22 BNA OSHC
at
1577 (finding a violation willful when the employer would not have complied with standard “even had it known of its obligations”).

Respondent knew
of the requirement, was reminded of what was necessary to come into compliance,
and
still
failed to
act. See
MJP , 19 BNA OSHC
at
1648
(stating that relevant considerations include prior history of violations and awareness of standard's requirements).

The violation was willful. 19

A. Citation 1, Item 1b
–LOTO Training -
29 C.F.R. § 1910.147(c)(7)(i)(A)

Citation 1, Item 1b alleges a violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), which requires training to ensure
employees understand
the purpose
and function of the energy control program. Employees who lockout
or tagout machines for maintenance
are
referred
to as “authorized employees.” 29 C.F.R.
§
1910.147(b). Such employees
must receive training that includes the
methods and means necessary for energy isolation and control. 29 C.F.R. § 1910.147(c)(7)(i)(A). The Secretary alleges that
Respondent
did
not adequately train
employees performing servicing and maintenance on
the chamber machine, the gizzard machine, the mixer machine,
and
the
frank-o-matic
as of
March 2, 2016. 20 (Sec’y Br. at 36.)

1. Applicability
   and
   Violation

Besides
having procedures in place to prevent unexpected energization, the LOTO standard
also requires employers to train employees to ensure they understand and have sufficient skills to
recognize applicable energy sources and isolate and control such energy as appropriate. 29 C.F.R. § 1910.147(c)(7)(i)(A). Of particular importance is the need to train the authorized employees who perform servicing or maintenance on energized machines. 29 C.F.R. §§ 1910.147(c)(7)(i)(A), 1910.147(b) (defining authorized employee). As discussed in connection with Citation 1, Item 1a, employees in the sanitation and maintenance departments routinely cleaned, serviced, and maintained machines with the potential to injure employees if they became energized during such activities. At least four of these machines
had both electric and pneumatic sources of energy. (Tr.
52, 57, 61, 756, 758, 760.) While Respondent conducted “general awareness training,” the Secretary argues
this
training
did not
provide
enough
information for
authorized
employees to safely lockout machines
with multiple energy sources. 21 (Sec’y Br. at 37; Resp’t Br. at 11, 13.) The Secretary
emphasizes
that because
Respondent’s
LOTO Plan
lacked
machine specific
procedures,
Respondent
could not
properly
train
employees
on
how to lockout all energy sources
that powered
the chamber machine, the gizzard machine, the mixer machine, and the frank-o-matic. 22 (Sec’y Br. at 37.)

In response, Birdsboro
does not allege
it
or LSCI provided training for authorized employees. (Resp’t Br. at 11-13.) Nor
would
the record support such a finding. The
HR Manager
provided
what
Respondent
refers to as “safety orientations.” (Tr.
189; Resp’t Br. at 11.) In doing so,
she relied on materials prepared by a former employee. (Tr. 190.) She
lacked formal safety and health training or experience
and
could not
answer questions on the topics
referenced in the
training
materials
independently. (Tr.
190, 453; Resp’t Br. at 11-12.) After what Respondent describes as a “large turnover,”
it
brought
LSCI
back in to
conduct
a
LOTO “general
awareness” training
in February 2016.

(Tr.
419-20,
427-30; Resp’t Br. at 13.) The training was not designed for “authorized
employees,”
i.e.,
those employees who lockout
or tagout machines to perform servicing or maintenance.

(Tr. 427-30.) It
was a
general
overview
rather
than a
training about how to lockout and tagout specific machinery with multiple energy sources. 23 (Tr.
424,
427-34.) Necessarily, employees could not be trained appropriately if such
procedures
did not exist. (Tr.
430-34;
552.)

See Drexe l , 17 BNA OSHC
at
1913 (the purpose of having prescribed lockout procedures is “to guide an employee through the lockout process”). The Secretary showed the cited standard applies
and
was violated.

1. Exposure

When
an employee’s job assignment includes
equipment servicing or maintenance, and it is reasonably predictable that the employee will encounter the hazard of unexpected energization while performing such work,
LOTO
training is required. Gen. Motors,
22 BNA OSHC
at
1022. As discussed, employees routinely cleaned, serviced and repaired the four machines
with air and pneumatic energy sources. (Tr.
49-52,
57, 63-64, 756-57, 760-61.) Each time they were exposed to
the possibility of the
unexpected start-up
of the machinery.

1. Knowledge

To establish knowledge, the Secretary does not need to show the employer was aware it was violating an OSHA standard. N&N Contractors, Inc.,
18 BNA OSHC 2121, 2124 (No. 96-0606, 2000),
aff’d , 255 F.3d 122 (4th
Cir. 2001). Showing
the
employer knew or should have known of the condition constituting the violation
is sufficient. Id .

Here, there is no dispute Respondent
had
actual knowledge of the need for LOTO training. In 2014,
it
was cited
for violating this same
provision of the LOTO
standard. (Ex. C-39 at 11.) The HR Manager was aware of the 2014
Citations, including that one component was the failure to provide LOTO training. (Tr. 199-200.)

Respondent
also
resolved
the
2012
Citations,
which
also
included a violation of
this
same
LOTO
training standard, 29 C.F.R.
§
1910.147(c)(7)(i). (Ex. C-54 at 8.) Mr. Wieder, the Operations Director,
reviewed
both the citations themselves as well as
the
2013 Settlement Agreement resolving
the
violations. (Tr.
498-99.)

At the time of the inspection, Respondent was aware of both the standard and its applicability to its operations. The HR Manager
knew the scope
of the safety
orientation
she
conducted,
and that Birdsboro
lacked
machine specific
LOTO procedures. Even if
Respondent
lacked actual knowledge about the scope of LSCI’s training,
it
could recognize
it was
not possible for the training to
address how to lockout machines with multiple energy sources. Further, a
simple inquiry of LSCI would have confirmed that the training was not designed for authorized employees who
needed to perform lockouts. (Tr. 424,427-34.) This
establishes
knowledge
of the violative condition.

See JPC,
22 BNA OSHC at 1861 (finding knowledge when the employer failed to take steps to discover the violative condition).

1. Characterization

The Secretary argues that the violation is
willful, or, in the alternative repeat
or serious. (Sec’y Br. at 40; Tr. 7, 11.) The undersigned finds that the violation is repeat. Respondent had actual knowledge that authorized employees needed specific training in how to de-energize machines. (Ex. C-39
at 11.)

It knew the content of
the
safety orientations the
HR Manager
conducted
and
could have learned that LSCI’s February 2016 training was not
adequate
for authorized employees. However,
a willful characterization requires more than
establishing knowledge
of the violative condition. Dayton ,
671 F.3d
at 1255 (rejecting the Commission’s characterization of a LOTO violation as willful).

While this violation may not be willful, it
is a repeat violation. As discussed, Respondent was previously cited for violating this
same
sub-section of the LOTO
standard
(29 C.F.R.
§  1910.147(c)(7)(i)(A))
at this facility
less than two years before. (Ex.
C-39
at 11.) Like the instant matter, this
prior violation concerned
a failure to property train about energy hazards employees may encounter when
repairing and serving production equipment. Id. In resolving that citation, Respondent accepted
the violation as issued. (Ex. C-44).

Respondent fails to rebut the
Secretary’s evidence that the 2014 violation
was substantially
similar to
the
present violation. 24
See
D.M. Sabia , 90 F.3d
at
860
(“A repeated violation requires no more than a second violation and does not require proof of “flaunting”);
Potlach Corp ., 7 BNA OSHC
at
1063
(violation is repeated if the
same employer was previously cited for a substantially similar violation).

A. Citation 1, Item 1c
–LOTO
Inspections- 29 C.F.R. § 1910.147(c)(6)(i)

1. Applicability, Violation,
   and Exposure

Citation 1, Item 1c
concerns the
requirement to conduct periodic inspections of energy control procedures. At least annually,
employers
must
inspect their energy control procedures to ensure
they
comply with the LOTO standard and
that
employees are following the procedures. 29 C.F.R.
§
1910.147(c)(6)(i). The employer must complete a written certification
indicating
the inspections have occurred. 29 C.F.R.
§
1910.147(c)(6)(ii). As explained above, there is no dispute that Respondent needed a
compliant
LOTO program
because
employees cleaning,
maintaining,
or servicing
energized equipment
could encounter the hazard of
unexpected energization
during such activities.

The Secretary alleges that Respondent failed to conduct periodic
inspections of
its LOTO procedures. (Sec’y Br. at 40-41.) Respondent
concedes it
did not
inspect
its
energy control procedures. (Resp’t Br. at 14.) It
argues the cited standard only requires
an
“annual”
review, and so no inspection was necessary because
the latest iteration of its
LOTO
Plan
was less than a year old. Id.

Respondent misconstrues the cited standard as requiring
only
a review of the written procedures. Besides inspecting
written procedures,
employers
must also
assess whether employees are
appropriately
following
a compliant
LOTO procedure
when
they
lockout
or tagout machinery.

29 C.F.R.
§
1910.147(c)(6)(i). For
authorized employees, such as those
who service or maintain energized equipment, the
assessment
must include
a review
with
each authorized employee
of his or her
responsibilities under the company’s lockout procedure. 25 29 C.F.R.
§  1910.147(c)(6)(i)(C).

Even accepting that
Birdsboro
reviewed the written LOTO Plan in October 2015, there is no evidence
it conducted
the
type of
inspection the cited standard
requires
for
over a
year before the date referenced in the Citation. 26 (Tr.
208; Ex. C-19.)

Respondent does not argue
it
had no
LOTO procedures
before
LSCI delivered the
written
LOTO Plan in
October 2015. Nor does it allege
its procedures changed when LSCI delivered the LOTO Plan in October 2015. Indeed, its Maintenance Manager,
Mr.
Criswell,
certified he was
conducting inspections
on certain machines
from
January
10, 2014,
through January
20, 2015.

(Ex. C-19.) After that date,
there is no evidence of any
inspections until OSHA commenced its investigation in March 2016. 27
Id.

Further,
the inspections that did occur were incomplete. On January 10, 2014, Mr. Criswell indicated he reviewed
the LOTO
procedures for the gizzard machine with one employee. (Ex. C-21.) There is no information
about a similar
review with the
rest of the authorized
employees. Nor
is
there
evidence of
any inspections of the LOTO procedures for the gizzard
machine
in 2015 or 2016. (Tr. 555-57; Ex. C-21.) Moreover,
there is no evidence of any inspections for
the
chamber machine, the mixer,
or the frank-o-matic
at any time. Id.
It appears that rather than
reviewing all
the procedures on all the machines
with every employee
tasked with maintaining or cleaning the machines, in 2014, Mr. Criswell inspected
one employee locking out one type of machine each month. (Ex. C-21.) David Olah, the
Area Director,
explained that
because
LSCI ultimately concluded over forty machines needed machine specific procedures,
the one machine/one employee
a month
approach
would
mean it would be years before Respondent inspected the procedures the maintenance
and sanitation
employees followed
when locking out
all the different types of production
machinery. 28 (Tr. 556-57.)

Thus, even crediting the evidence of
inspections in 2014, there is no evidence it covered all the machines
or that any inspections occurred in the year before the date alleged in the Citation. 29

The Secretary showed Respondent had to inspect its employees’ understanding of the LOTO procedures and
failed to do so
for at least one year. The standard was violated and employees cleaning, maintaining, or servicing energized equipment were exposed to the hazard of
injuries from unexpected energizations.

10. Knowledge

Respondent makes no claim that
it
thought the inspections were being done. Rather, it contends they were unnecessary as of the date alleged in the Citation. (Resp’t Br. at 14.) As found above, inspections were necessary under the cited standard. As
Respondent
had
actual knowledge of this
requirement,
it
has no basis to claim it did not know the inspections were not being done.

Respondent was previously cited for violating this same requirement in 2014. (Ex. C-39 at 12.) Both the Operations Director and the HR Manager were aware of the prior LOTO violations. (Tr. 199, 505, 512; Ex. C-44.) Mr. Wieder,
Respondent’s Operations Director,
accepted this violation on Birdsboro’s behalf
in the 2014 Settlement Agreement. (Ex. C-44.)

In addition,
LSCI provided
OSHA
with thirteen documents each titled “Lockout/Tagout Periodic Inspection Form.” (Ex. C-19; Tr. 294-95.) The forms include the name of the machine, who conducted the inspection, the authorized employee with whom the energy control procedures
were being reviewed, and the date. 30 (Ex. C-19.) Above the signature is a certification: “I hereby certify the periodic inspection for compliance with lockout/tagout standards on this machine/equipment have been satisfactory completed with the employee identified above.” (Ex. C-19 (mistakes in original).) LSCI provided Respondent with the forms and reminded the HR Manager, who had been delegated the responsibility for safety,
to be sure the inspections occurred. (Tr. 228, 230-31, 238-39; Ex. C-46.) Thus, the forms themselves reference the requirement to inspect LOTO procedures and Respondent’s consultant reminded the HR Manager of the need for such inspections. (Exs. C-21, C-46.) Respondent
knew of
the
cited standard and does not dispute
that
it knew no
inspections
occurred
between
January 20, 2015
and the start of the March 2016 inspection. (Ex. C-19; Tr. 293.)

1. Characterization

The Secretary argues the violation is willful, or, in the alternative repeat
or serious. (Sec’y Br. at 43; Tr. 7, 11.) Respondent had actual knowledge of the need
for LOTO
inspections. (Exs.
C-19,
C-39
at 12.) It was previously
cited for violating this
same
subpart of the LOTO standard (29 C.F.R.
§  1910.147(c)(6)(i))
for failing to conduct periodic inspections of its LOTO procedures
in 2014. (Ex. C-39 at 12.)

After
accepting this
serious
violation
in 2014,
Respondent retained LSCI
for assistance with
learning how to comply with this requirement. (Tr.
515-15.) LSCI provided Respondent with a form checklist to
guide supervisors in conducting
inspections. (Tr. 238-9, Ex. C-19.) The
checklist guides
a supervisor through the requirements to comply with the inspection called for by
the
cited standard. (Ex. C-19.) The Maintenance Manager, Mr. Criswell, signed several inspection forms certifying he reviewed the LOTO procedures with certain employees for a few machines. (Tr. 295-96; Ex. C-19.) However, these efforts quickly subsided and there is no evidence of any inspections for over a year before the date alleged in the instant Citation. Id.

Despite having numerous machines, some with multiple energy sources, there is no evidence of a single inspection of the LOTO procedures any employee used on any machine for over a year.

Ms. Rothrock of
LSCI
repeatedly reminded the HR Manager,
Ms. Murray-Garcia,
of
the
ongoing obligation to continue to conduct the inspections.

(Tr.
221-22, 227, 231;
Ex. C-46
at 1.) In an email on September 29, 2015,
near the end of the one-year contract between LSCI and Birdsboro, Ms. Rothrock
pointedly
explained to Ms. Murray-Garcia that
failing to
comply
with the inspection and other requirements would
place the company at risk for repeat or willful
violations. Id . Still, Respondent failed to
heed
the
warning and did not
resume the inspections. 31 (Ex. C-19.) As discussed above in connection with the characterization of Citation 1, Item 1a,
Birdsboro failed to sufficiently
prioritize safety.

The prior violation and
provisions of its safety program gave Respondent a heightened awareness of the inspection requirement. See
Active Oil , 21 BNA OSHC at 1098, 2004- 0 9 (finding heightened awareness based on a previous citation and the content of the employer’s written safety program) ;
Anderson,
17 BNA OSHC at 1892-93
(finding heightened awareness because the provision was “essentially contained in one of the work
rules in the company’s safety plan”);
Lanzo,
20 BNA OSHC
at 1649. Respondent knew of the requirement
and
its applicability
to its operations. 32 The record lacks any
explanation for why
it ceased conducting the required inspections
after being made aware of the requirement as a result of the prior citation and LSCI. Its conscious disregard of a known requirement is willful. Hern Iron , 16 BNA OSHC
at 1214 .

A. Penalty for Citation 1, Items 1a, 1b, and 1c

Before turning to the penalty to be assessed, t he undersigned notes that Respondent does not
contend
that
any of the alleged violations are duplicative.  Such an argument would fail because the abatement
one of the violations alleged in Citation 1 would not, without further action, bring Respondent into compliance with the other requirements of 29 C.F.R. §   1910.147(c).
See
Dayton Tire ,
23 BNA OSHC
at
1267;
N.E. Precast LLC , 26 BNA OSHC 2275, 2279
(No.
13-1169 & 13-1170, 2018) (violations w ith
the same abatement may be duplicative),
aff’d , 773 F. App ’ x 70 (2d Cir. 2019) (unpublished).
Item 1a relates to the requirement to have appropriate LOTO procedures,
Item 1b concerns the requirement to appropriately train authorized employees about energy control procedures, and Item 1c is about Respondent’s failure to review, or inspect, employee’s understanding of the company’s LOTO procedures.
(Tr. 552-53.)
The abatement necessary for each of these violations is distinct.
Having compliant written procedures, would not abate a failure to train about those proc ed ures.  Nor
does
having compliant written procedures satisfy the requirement to annually
inspect
whether authorized employees understand their role in conducting lockouts.
See Gen. Motors , 22 BNA OSHC
at
1024 (finding separate violations of subpart (c) of the LOTO standard were not duplicative because one related to the
failure to have an energy control program and the others related to the implementation of specific aspects of th e
program);
Dayton Tire , 23 BNA OSHC at
1267 (violations alleging a failure to provide locks and a violation of the failure to train authorized employees
we re
not
duplicative because a single abatement could not
c ure both deficiencies);
Burkes Mech., Inc ., 21 BNA OSHC 2136, 2142 (No. 04-475, 2007) (violations of two different standards related to the control of hazardous energy not duplicative). 

Although the violations are not duplicative, the Secretary has grouped them for penalty purposes and
proposes a single penalty of $124,709 for Items 1a, 1b, and 1c. The undersigned finds it appropriate to group these three violations
of the LOTO standard
for penalty purposes.

When assessing penalties, the OSH Act requires consideration of the
violation’s
gravity, Respondent’s history of compliance, its size,
and any good faith
it has shown. 29 U.S.C.
§
666(j). The violation’s gravity is typically given the most weight. J. A. Jones Constr. Co ., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

These violations could cause contusions, lacerations,
and broken bones. (Tr. 635-41.) Employees routinely cleaned and serviced these machines,
some on a daily basis,
which
increases
the likelihood of
an injury from an improperly locked out machine. (Tr.
636, 640.) Between fourteen and eighteen employees were responsible for cleaning machinery and another four to six had repair and maintenance responsibilities. (Tr. 48-49; Resp’t Br. at 10.) Violations of
the
LOTO standard
are
generally
considered to be of higher
gravity
because of
the likely injury resulting
from such violations. Angelica ,
27 BNA OSHC
at
1259 (noting the “high gravity nature of LOTO” violations);
Worldwide Mfg., Inc ., 19 BNA OSHC 1023, 1024 (No. 97-1381, 2000),
aff’d , 22 F. App’x
684 (8th
Cir. 2001)
(unpublished).

Respondent is a large employer with a history of violations. At the time of
inspection, it employed approximately 270 to 280 employees. (Tr.
43,
305,
477; Resp’t Br. at 10.) See Burkes,
21 BNA OSHC at
2142 n.10 (finding employer with over
220 employees to be a “large employer”). In terms of its compliance history, as discussed, a little over a year before the
issuance of the
present Citations,
Respondent
was cited for violating
the
LOTO standard. The
2014
Citation included: (1)
a repeat violation of 29 C.F.R.
§  1910.147(c)(4)(i), which is
the same standard cited
in this matter
as part of Item 1a;
(2) a serious
violation of 29 C.F.R.
§
1910.147(c)(7)(i)(A), which is the same standard cited as
in
Item 1b; and (3)
a serious violation of 29 C.F.R.
§  1910.147(c)(6)(i), which is the same standard cited
in Item 1c.

(Ex. C-39.) The
2014 Citation also included
a
violation of
another provision of
the LOTO standard as well as violations of several other standards. Later that same year
Respondent received
two more
citations on December 25, 2014. (Ex. C-52.) Although these
other
citations did not include violations of the LOTO standard, they
counsel against any penalty reduction for history. See Revoli , 19 BNA OSHC at 1687 (finding employer’s long history of non-compliance “weighs heavily against it”).

Finally,
as to good faith, the violations
of
29 C.F.R.
§ §
1910.147(c)(4)(i), 1910.147(c)(6)(i) were
willful
and the violation of 29 C.F.R.
§
1910.147(c)(7)(i)(A) was repeat. Respondent
did make some effort at training workers
and taking steps to address the
deficiencies
in its
LOTO program.

However,
these meager efforts came after
multiple
citations and still fell
well
short of what the
LOTO
standard requires. No reduction for good faith is appropriate. See
Worldwide , 19 BNA OSHC
at
1024
(good faith penalty reduction not appropriate for
an
employer with a “history of prior violations” and where abatement measure came “too late”).

“The purpose of a penalty is to achieve a safe workplace, and penalty assessments, if they are not to become simply another cost of doing business, are keyed to the amount an employer
appears to require before it will comply.” Quality Stamping Prod s . Co ., 16 BNA OSHC 1927, 1929 (No. 91-414, 1994). Respondent has
reached two prior settlements with OSHA
for
LOTO violations. (Exs. C-39, C-44,
C-54,
C-57.) Still, it failed to come into compliance
with
applicable
standards which
protect against serious
hazards in its
workplace. A
penalty of
$124,709
is assessed for Citation 1, Items 1a, 1b,
and 1c.

I. Citation 2, Item 1, Serious Violation of 29 C.F.R.
§
1910.23(a)(8) - Floor Holes

As amended, Citation 2 alleges three instances where Respondent violated 29 C.F.R.
§  1910.23(a)(8). 33
This standard required the guarding of every floor hole into which employees can
accidentally
walk.
Id .

At the time of the alleged violation, a “Floor hole” was defined an opening in any floor “measuring less than 12 inches but more than 1 inch in its least dimension” and “through which materials but not persons may fall.” 29 C.F.R.
§   1910.21(a)(1).

A. Instance (a)

Instance (a) of this citation item concerns an area in
one of
the
P icking
R oom s . (Tr. 75-76, Ex.
C- 11.) In the Picking Rooms, employees set the machines to pick the feathers off the animals after they are killed. (Tr. 38-39.) In Picking Room 2 , there was
a
three-inch gap between a raised grate where certain employees worked and the regular floor. (Tr. 76-77; Ex.
C- 11.) There was no guarding for this floor hole. (Ex. C-11.) The Area Director explained that the gap could cause employees to trip but they could not fall through the hole. (Tr. 566.) The dimensions of the opening fit within the definition of “floor hole , ”
as it was greater than one inch but not more than
twelve.
(Tr. 77; Ex.
C- 11
at 2 .) So, the Secretary
established the standard’s
applicability
and its violation .

The Secretary also established
exposure
and
knowledge
of the violative condition . Employees worked on top of
the
raised grate. (Tr.
7 5 -77 ; Ex. C-11 .) T he
S uperintendent
explained he
was familiar with this area , including the grating. (Tr. 75-7 7 .)

He
acknowledged being aware that the gap was open “most of the time.” (Tr. 79.) See
Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (“Employer knowledge
is established by a showing of employer awareness of the physical conditions constituting the violation”),   aff’d,
79 F.3d 1146 (5th Cir. 1996) (unpublished). Additionally ,
the condition was open and obvious
making it easy
to
discover, as the
Superintendent
did. (Tr.
75 -80 ; Ex. C-11 .) See
Kokosing Constr. Co ., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996) (holding that “the conspicuous location, the readily observable nature of the violative condition, and
the presence of Kokosing’s crews
in the area warrant a finding of constructive knowledge”).

A. Instances (b) and (c)

1. Applicability

Instances
(b)
and (c)
relate
to conditions observed on or about July 6, 2016 in the “Northwest end of the Evisceration Room.” The Evisceration Room is adjacent to the Picking Rooms discussed in connection with Instance (a). In the Evisceration Room,
the liver and gizzard are
separated,
and the birds are inspected. (Tr. 41-42.) This room had
two
openings
in the floor. One was an unguarded 10-inch opening between the end of a walkway and the start of the waste trough. (Ex. C-11, Tr. 96-97.)

This is the basis for Instance (c). Near this
opening,
there was another 10-inch gap
in the grating
for
another trough. This
other gap
is the basis for Instance (b). (Ex. C-11
at 5a, Tr.
97.) The
Area Director explained that employees could walk into
either
of these
openings, but could not fall through
them, so
both
openings
are considered
floor holes
within the meaning of the cited standard. (Tr. 569.)

1. Violation

When there is a floor
hole, employers have two options
for guarding, a
railing
or
a cover. 29 C.F.R. § 1910.23(a)(8). Specifically,
the floor hole must be guarded with either:

(i) A standard railing with standard toeboard on all exposed sides, or (ii) A floor hole cover of standard strength and construction. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing.

Id . Although there was a single chain
near the trough
referenced in Instances
(b) and (c), the Secretary showed it was inadequate. To be considered a guardrail within the meaning of the standard, there would have to be two chains
and
a
toeboard. (Tr.
571-72.) There
was only one chain
and
there was
no toeboard. (Ex.
C-11 at
5a and
6a.) Further, the
single chain
did
not
block the
opening at
discussed
in
Instance (b)
at all. Id.
at 5a.

In its brief, Respondent argues
the trough was “constantly attended.” (Resp’t Br. at 16.) However, for that to be relevant, the trough would have had to have a cover of standard strength and construction. 29 C.F.R. § 1910.23(a)(8)(ii). No one discussed the existence of such
a
cover,
and none is visible in the photographs of the conditions. (Ex. C-11.) Further, while many employees worked in this area and some were charged with regularly cleaning the floor
by pushing waste into the trough, there is no evidence
that
anyone
was
attending the opening to prevent workers from tripping. (Tr. 91.)

1. Exposure
   and Knowledge

Approximately fifty employees worked in this area, including some who cleaned waste into the trough throughout the day. (Tr.
91; Ex. C-11.) The
area was always wet and occasionally slippery. (Tr. 93, Ex. C-11 at 5-6.) Both conditions were open and obvious and located in high traffic areas. (Tr. 90-91.) The conditions were either known or
could have easily been discovered with reasonable diligence. See
Kokosing
17 BNA OSHC
at
1871;
Am. Airlines, Inc ., 17 BNA OSHC 1552, 1555 (No. 93-1817, 1996) (consolidated) (finding knowledge
in
connection with violations of 29 C.F.R.
§
1910.23
when conditions were in plain view and supervisory personnel were present).

A. Characterization
and Penalty
of Citation 2, Item 1, Instances (a), (b), and (c)

The Secretary argues this violation is serious and proposes a single penalty of $5,880 for the three Instances. Respondent
raises no arguments
concerning
the characterization
or proposed penalty. (Resp’t Br. at 16-17.) The Area Director explained that the openings created a trip and fall hazard that could result in broken bones, sprains, and strains. (Tr. 567, 571, 574.) Still, he considered it
a
low gravity
violation. (Tr.
575-76; Ex. C-10.) He argued that no size or good faith reductions were appropriate as Respondent had over 250 employees and lacked a good overall safety program. (Tr. 575-77.) Finally, because of Respondent’s history, he argued that the penalty
that
would otherwise be appropriate for the
violation’s
gravity should be increased by 10%. (Tr.
577-78.)

The undersigned agrees that the
violation’s gravity
does not warrant the maximum penalty. As for good faith, Respondent promptly addressed the violation but
lacked
an effective overall safety program. (Tr. 78-79.) Respondent’s
large size does not warrant a
reduced penalty. (Tr. 477.) Finally, its history of violations makes some increase appropriate. See Quality
Stamping,
16 BNA OSHC at 1929 (weighing the employer’s substantial history when calculating the penalty).

The violations
are
serious.

The
Secretary’s proposed grouping of the three
Instances with a single penalty of $5,880 is appropriate. A penalty of $5,880 is assessed for Citation 2, Item 1, Instances (a), (b), and (c).

I. Citation 2, Item 3b-
Serious Violation of 29 C.F.R. § 1910.37(b)(5)
–
Exit Signage

Birdsboro’s facility consists of
several
different rooms and areas. In the
Kill
Room, employees hand live animals to rabbis for slaughtering. (Tr. 36-37, 150; Ex. C-17 at 1, 3, 7.) Adjacent to the
Kill
Room there are two
Picking Rooms,
where machines remove the feathers from
the animals
(in other words, the “product”).

(Tr. 38-39.) After the
Picking Rooms,
the
product enters
the
Evisceration
Room where certain parts are
removed,
and the
product is
inspected. (Tr.
41-42.) The
product moves
to the
Process
Room for salting and chilling. (Tr. 42-43.) Some
product is also
sent to
the
Grind
Room
for additional processing. (Tr. 42-43, 49.)

Citation 2, Item 3b relates to alleged violations
of 29 C.F.R.
§ 1910.37(b), for insufficient exit markings. If a door does not
lead to an exit, it
must be marked “not an exit” or otherwise explain what is behind the door. 34

29 C.F.R. § 1910.37(b)(5). In addition,
if the way to exit is not immediately apparent, signs must be posted along the exit access route to indicate both the direction of travel and the nearest exit. 29 C.F.R. § 1910.37(b)(4). The “line-of-sight to an exit must be clearly visible at all times.” Id.

A. Instances (a) and (e) – Violations of 29 C.F.R. § 1910.37(b)(5)

1. Instance (a)

Instance (a) alleges that the door connecting the
Evisceration
Room to
Picking
Room 2
should have indicated it was not an exit. There is no debate the door lacked a
sign identifying
it
as leading to
Picking Room 2
or otherwise indicate the door did not lead to an
exit. 35 (Tr. 113;
Ex. C-13 at 1, 4A.)

Besides this door, the
room had
three other
doors. (Tr. 113-15.) One of these other doors, which was located on a
different wall,
had an
exit sign
above
it. Id. Respondent alleges that
the
OSHA compliance officer (CO) investigating the facility
purposely framed the photograph of the area
to
exclude
the exit sign. (Resp’t Br. at
17.) This claim is meritless. First, the exit sign is visible in one of the
CO’s
photographs, just not all of them. (Ex. C-13
at
4A.) Moreover,
the cited standard concerns whether doors along an exit route are clearly marked to indicate they are not an exit. (Tr. 706.) Thus, the existence of some exit signage does not mean there has been no violation of 29 C.F.R. § 1910.37(b)(5), which is concerned
with doors
not leading
to exits.

This is not to say that the presence of the exit sign is irrelevant. Its
presence shows that the door in question was along an exit route. (Sec’y Br. at 50.) Someone seeking to quickly exit along this route might come to
this
door and think it was an exit when it just leads to another
interior
room. (Tr. 583-84.) For this reason, the standard requires the doorway itself to be marked.

(Tr. 583-84, 706.) The standard applies and was violated. 36

As for exposure,
between fifty and sixty
employees worked in this room every day. (Tr. 41-42, 63, 91; Ex. C-12.) The amount of equipment and other space limitations made the need for clear exit routes critical. (Tr.
708.)

Turning to knowledge, the
Superintendent
was familiar with this area of the
facility. (Tr.
63, 112.) The condition was in plain view and the lack of signage was readily apparent. See A.L. Baumgartner Constr.,
16 BNA OSHC 1995, 1998 (No. 92-1002, 1994) (constructive knowledge established when cited condition is readily apparent). The Secretary met his burden.

1. Instance (e)

Instance (e)
relates to
a
single
door from the process room. 37 At one end of the process room,
there is a single door
close to
a set of double doors. (Tr. 132;
Ex. C-13
at 6.) Above the double doors, there is an illuminated
exit sign. (Ex. C-13 at 6.) Adjacent to the double doors, a
single door connected
the process room
to what was referred to as the ammonia or cooler room. (Tr. 132-34.) This adjacent room
contained the compressor for the cooling system
and did not lead to an exit. (Tr. 132-33.) There
is no signage on the
single
door indicating either what was behind it or
explaining
it was not an exit. (Tr. 134;
Ex. C-13
at 6.) The Area Director explained
that an employee attempting to exit the
area could be confused as to whether it could use
the
single door, as opposed to the adjacent double doors,
to exit the building. 38 (Tr. 581.)

Employees worked in this area and thus were exposed to the hazard. (Ex. C-13
at 6.) The
Superintendent was familiar with this area
and Respondent
could have discovered
the lack of signage with reasonable diligence. (Tr.
100,
125.) See A.L. Baumgartner,
16 BNA OSHC
at
1998 (constructive knowledge established when cited condition is readily apparent).

The Secretary established the violation.

A. Instance (d)- Violation of 29 C.F.R. § 1910.37(b)(4)

Instance (d) concerns a set of double doors from the
packing area
to the Evisceration Room. These doors were not labeled. (Tr. 125;
Ex. C-13 at 5.) Unlike the other Instances,
which involved doors that did not lead to an exit,
this allegation involved
doors
leading
to a
possible
exit route. So, at the hearing,
the Secretary
moved to
amend Instance (d) to allege, in the alternative, a violation of section (b)(4) of 29 C.F.R. § 1910.37, as opposed to section (b)(5) as was initially alleged in the Citation. (Tr.
131,
581.) Respondent did not object to the amendment and
the request was granted. (Tr. 131.) Section (b)(4) provides:

If the direction of travel to
the
exit or exit discharge is not immediately apparent, signs must be posted along the exit access indicating the direction of travel to the nearest exit and exit discharge. Additionally, the line-of-sight to an exit must be clearly visible
at all times.

29 C.F.R. § 1910.37(b)(4).

The
Superintendent
indicated that the double doors
shown in Ex. C-13
were one possible
way to exit the building. (Tr. 126-27.) Neither he nor any
other
witness
explained
whether the double doors depicted in
Exhibit C-13 represented the “nearest exit.” The Superintendent
did
explain, however,
that
the
lit exit signs
in the
room
made it
immediately apparent how to exit this area. (Tr. 171-72; Ex. C-13 at 5.) This testimony was not sufficiently refuted.

The Secretary failed to
show that the double doors
needed to be labeled. Because they were a possible exit, the
lack of labeling did not violate section (b)(5). Nor did the Secretary establish that they were the nearest way to exit the building or that the line of sight to the nearest exit was not clearly visible in violation of section (b)(4). Instance (d) is vacated.

A. Characterization and Penalty
for Citation 2, Item 3(b), Instances (a) and (e)

Respondent does not challenge the characterization as serious.

The record supports this characterization.

The Area Director explained that
marking doorways is important because a failure to do so harms safe egress in the event of an emergency. (Tr.
581,
708.) If an employee cannot
quickly determine how to leave, they may
enter a doorway
that
does not lead
to an exit and
become
trapped. (Tr. 581.) Such a hazard
is appropriately characterized as
serious. See Tree of Life Inc., d/b/a Gourmet Award Foods, N.E. Div. , 19 BNA OSHC 1535, 1537
(No. 00-0433, 2001) (finding a violation related to egress serious rather than de minimis).

Initially, in the Citation, the Secretary proposed a single grouped penalty for of $5,888 for Citation 2, Items 3(a) and 3(b). The Secretary subsequently withdrew Item 3(a), and two of the five
Instances that were part of Item 3(b). This left Instances (a), (d), and (e) of Item 3(b). As discussed, only Instances (a) and (e) are affirmed.

The Secretary acknowledges the
violation’s
gravity is not particularly high. (Tr. 584; Sec’y Br. at 51.) Respondent
had
some exit signage and
directional
markings. However, it also had a high turnover of its
large
workforce, which made appropriate exit signage important in a large multi-room facility. (Tr.
305,
419-20,
422, 426, 708.) New
employees
could be unfamiliar
with
which
one of
several doors
connected
to an exit or
a
dead end. (Tr. 708.) As for good faith,
Respondent
lacked
a robust safety program
and a further reduction for this factor is not
appropriate. Likewise,
Respondent
has a history of violations
and is a large company, so these factors do not warrant a further reduction in the penalty.

Given the withdrawals and the vacation of Instance (d), a lower penalty than
what the Secretary proposes is appropriate. A
$2,000
penalty is assessed
for Citation 2, Item 3(b), Instances (a) and (e).

I. Violations of the
Occupational
Noise
Exposure
Standard (29 C.F.R. § 1910.95)

A. Citation 2, Item 4 – Serious Violation of 29 C.F.R.
§
1910.95(b)(1) – Noise Control

1. Applicability and Violation

Item 4 relates to noise in the Picking Room. The cited standard requires administrative or engineering controls
when noise exceeds
specified action levels. 29 C.F.R. § 1910.95(b)(1). If these controls fail to reduce the noise
below the action
level, then PPE must be provided and used. 39
Id . The parties stipulated that cited standard applies and the record supports this. (Tr. 248-51.) In
particular, the parties agree to the level of noise in the Picking Room exceeded the
threshold above which action under 29 C.F.R.
§
1910.95 is required. In March of 2016 the: (a) noise in one area of the Picking Room exceeded the permissible noise dose by 1,662%, (b) noise in a second area exceed the permissible noise dose by 2,225%, (c) noise in a third area exceeded the permissible noise dose by 640%, and (d) noise in
a fourth
area
exceeded
the permissible noise dose by 295%. (Tr. 250-51.)

Respondent acknowledged the accuracy of these measurements but disputed whether employees were actually exposed to this level of noise because
it provided PPE, including earplugs and earmuffs. (Tr. 251.) For purposes of
29 C.F.R.
§ 1910.95, “employee noise exposures shall be computed ... without regard to any attenuation provided by the use of personal protective equipment.”

29 C.F.R.
§ 1910.95(c)(1);
Occupational Noise Exposure; Hearing Conservation Amendment, 46 Fed.
Reg.
4078, 4102) (Jan. 16,
1981)
(employers must
“provide audiometric testing for those employees exposed above the
[action level]
without regard to the use of personal protective equipment ”) (emphasis added). Thus, it is the level of noise in a given area that triggers an employer’s responsibilities under the cited standard, not the level of noise employees are exposed to
when they are
wearing PPE.

Given that the noise was well above the action level,
Respondent needed to implement feasible administrative or engineering controls
to address the noise. 29 C.F.R. § 1910.95(b)(1).

The Citation alleges that feasible abatement measures could include the “installation of barriers, baffles, sound-absorbing, or sound-damping materials to reduce employees’ exposure to occupational noise.” Respondent
acknowledges that after the investigation commenced, it was able to
implement feasible administrative and engineering controls to reduce the noise levels. (Resp’t Br. at 19-20.) After the date alleged in the Citation, it
installed a wall
and
additional ceiling
material
in the Picking Room, as well as double-sided acrylic curtains to reduce noise. (Tr. 82-83,
119-20, 519;
Exs. C-11 at 4, C-13.) It also
hired a contractor which advised the company about additional engineering controls it could use to reduce noise. (Resp’t Br. at 19-20; Tr. 120, 522.) There is no evidence that any of these measures could not have been
implemented
before the date alleged in the Citation. 40

Despite
its acceptance of the noise readings and the fact that there were feasible engineering controls that could have been adopted,
Respondent argues that OSHA’s acceptance of the
abatement
documents following the 2014 Citations
precludes the present Citations. (Resp’t Br. at 20.) First, the earlier violation
refers to Kill Room,
rather than Picking Rooms. (Ex. C-39 at 31-33.) Second, the standard
cited in 2014
is
29 C.F.R.
§  1910.95(c)(1), which requires a hearing conservation program. (Ex. C-39 at 31-33.) So, abating that violation would not mean that
Respondent had implemented feasible engineering controls, or that it was in compliance with the standards cited as a result of the 2016 inspection
(29 C.F.R.
§ §
1910.95(b)(1), (g), (i)(3), (m)(2)(ii)(E)). See
Con Agra Flour Milling Co. , 25 F.3d 653, 657
(8th Cir. 1994)
(vacation of
prior citation did not give employer reason to believe it would not be later cited for violating different regulations);
Kaspar , 18 BNA OSHC
at
2183 n.13
(OSHA may issue a citation for a condition that may have been previously observed but was not cited as a violation).

Third, while OSHA may have accepted the Respondent’s abatement certificate, that does not provide immunity for future violations. See Erie Coke Corp. ,
15 BNA OSHC
1561, 1568-69 (No. 88-0611,
1992)
(Secretary not estopped from changing position after prior settlements of
violations),
denying review in part, and affirming in part , 998 F.2d 134 (3d Cir. 1993) (finding employer’s cross-petition for review untimely). OSHA
did not
inspect
the facility to test noise levels after receiving Respondent’s abatement certification. Rather, OSHA accepted Respondent’s
certification
that
it
appropriately
abated the
violations related to
noise. Resolving those citations did not mean OSHA was approving Respondent’s entire safety program
or excuse the responsibility to continue to comply with the OSH Act. (Tr. 688-89.) See Flu o r Daniel , 19 BNA OSHC 1529, 1533
(No. 96-1729, 2001) (consolidated) (rejecting estoppel claim based on past compliance inspections),
aff’d , 295 F.3d 1232 (11th Cir. 2002).

The Secretary showed that the engineering controls Respondent had in place at the time of the inspection were inadequate. After being cited for
failing to have a hearing conservation program
in 2014, Respondent installed
some new motors, which
it hoped would reduce the noise. (Tr.
518-19.) However,
it failed to conduct testing to determine if
the actions it took
impacted the level of noise. (Tr.
520; Ex. 39 at 31-34.) Mr. Wieder, the Operations Director, admitted he “dropped the ball” in terms of assessing whether the steps taken had an impact on the level of noise. (Tr. 521.) Testing conducted by OSHA
in 2016
showed the new motors had no significant impact on the noise.

(Tr. 250.) Respondent failed to utilize feasible
administrative or engineering controls as
required. 41

1. Exposure

Many employees worked in the Picking Room and were exposed to the noise. Employees in four different areas of the Picking Room wore dosimeters to assess the
level of
noise
in
the
room. While these employees were
provided with PPE and required to use it, the standard requires employers to first implement feasible engineering controls before relying on PPE. 42 29 C.F.R. § 1910.95(b)(1)
(specifying that if administrative and engineering controls fail to reduce the sound levels sufficiently, then
PPE
shall be provided). See
Anchor Hocking Corp ., 3 BNA OSHC
1389, 1391
(No. 3783, 1975) (Cleary,
Comm’r,
concluding that 29 C.F.R. § 1910.95(b)(1) requires feasible administrative or engineering controls whenever employees are subjected to sound levels exceeding those specified in the standard).

1. Knowledge

As for knowledge, the HR Manager and
the Operations Director,
Mr. Wieder,
both acknowledged that as of the time alleged in the
Citation,
they were aware that the noise levels were high enough to trigger the requirement to conduct annual audiograms. (Tr. 309, 518.) The
2014 Citations included a
violation
for failing to administer an effective hearing conservation program as
required by
29 C.F.R.
§
1910.95(c)(1). (Ex. C-39 at 30.) The violation alleged
exposure to noise over
22 decibels higher than the action level set out in the standard. Id. Respondent
accepted this violation, including the repeat characterization as part of the 2014 Settlements. (Ex.
C-39 at 30-31;
C-45.)

Mr. Wieder
was aware of both this 2014 Citation, as well as an earlier one
issued to MVP in 2012, that
also involved a
serious
violation of 29 C.F.R.
§
1910.95(c)(1). (Ex. C-54 at
31-32.) The 2012
Citation
discussed
three employees on
the
picking line all being exposed to noise well above the action level. Id .

Even without this history of noise violations,
the level of noise was readily apparent. See Con t’l Elec. Co.,
13 BNA OSHC
2153, 2155 (No.
83-921, 1989)
(high
noise levels would have indicated to a reasonably diligent employer
that exposure might exceed action levels). The area had four picking machines and the parties agreed that noise readings were
substantially
above the action level. (Ex. C-11; Tr. 143, 248-49.)

1. Characterization
   and Penalty

Respondent does not dispute the
violation’s
characterization as serious. The
record supports this
characterization. Four employees were monitored, and the level of noise in the areas where they worked greatly exceeded the standard. (Tr. 250-51; Ex. C-10.) The high levels of noise could cause hearing loss. (Tr.
587.)

In terms of the penalty amount, the Secretary proposes $12,471. This amount
is
appropriate
for
the violation’s gravity, Respondent’s large size, its history of violations, including ones related to noise,
and its inadequate safety program. (Tr. 727-29; Ex. C-10.) The availability of PPE somewhat mitigates the
violation’s
gravity. Respondent
also
took action to address the noise both during the investigation and after the Citation was issued. However, Respondent was previously cited for noise-related violations, and this history warrants a higher penalty. So, a penalty of $12,471 is assessed for Citation 2, Item 4.

A. Citation 2,
Items 5a, 5b, and 5c

1. Items
   5a
   and 5b– 29 C.F.R.
   §
   1910.95(g)
   –Audiology
   Testing Program

Respondent accepted responsibly for Citation 2, Items 5a and b in its brief. (Resp’t Br. 20-21.) Item 5a relates to a violation of 29 C.F.R.
§
1910.95(g)(7)(i) for failing to compare
annual audiograms to the baseline audiograms. Item 5b
relates to a violation of 29 C.F.R.
§  1910.95(g)(8)(ii)(B),
which requires that employees already using hearing protectors
must
be refitted and retrained in the use of hearing protectors as well as being provided with hearing protectors offering greater attenuation if necessary.

The record supports affirming the violations.

Employers covered by the occupational noise standard must establish and maintain an audiometric testing program. 29 C.F.R.
§
1910.95(g);
Trinity Indus. Inc ., 15 BNA OSHC 1579, 1590 (No. 88-1547, 1992)
(“an employer's obligation to conduct monitoring is mandatory once a threshold noise level is reached”),
rev'd on other grounds , 16 F.3d 1149 (11th Cir. 1994).

The program must include several elements, including evaluation of audiograms
and re-fitting employees with hearing protection under certain circumstances. 29 C.F.R.
§ §
1910.95(g)(1)(7), 1910.95(g)(8)(ii)(B). At the hearing, the parties stipulated that
the cited standard applies to the cited conditions. (Tr. 251.) Respondent does not dispute that its employees were subject to noise and covered by the cited standard.

In terms of Citation 2, Item 5a, the
Operations Director, Mr. Wieder,
admitted the consultant retained to conduct the
audiological
testing was
not
comparing the test results to baseline audiograms. (Tr.
524.) Nor
was
Birdsboro itself doing
this. (Tr. 315.) As for Citation 2, Item 5b, the HR Manager
acknowledged that Respondent was not refitting employees hearing
protection based on the results of any audiograms. (Tr. 317-18.) Respondent does not
deny
it
knew or could have known of the violations.

Both violations were appropriately characterized as serious, given the connection to the potential for hearing loss. (Ex. C-10.) See Reich v. Trinity Indus. , 16 F.3d 1149, 1150
(11th Cir. 1994)
(“Noise at the work place is a serious health problem”).

For penalty purposes, the Secretary proposes a single penalty for Items 5a, 5b,
and 5c.

1. Citation 2,
   Item 5c – 29 C.F.R.
   §
   1910.95(i)(3)
   – Hearing Protection

The noise standard requires employers to give employees:
“the opportunity to select their hearing protectors from a variety of suitable hearing protectors provided by the employer.” 29 C.F.R.
§
1910.95(i)(3). Respondent required employees to wear earplugs and earmuffs
in the Picking Room
to address the level of noise in the facility. 43 (Tr. 321,
588.) However, it only provided one type of earplug and one type of earmuff. (Tr. 138,
320-21; Ex. C-15.) Employees could not
choose their hearing protectors “from a variety” of hearing protectors, they had to wear the two items provided. (Tr. 321.) The standard requires options to ensure proper fit. (Tr. 587-89.) Respondent failed to provide the opportunity to select
hearing protection as the cited standard
requires. 44

The HR Manager
knew
employees were required to wear the earplugs and earmuffs. (Tr. 321.) And she knew, prior to the inspection,
that
Birdsboro
only offered one type of earplug and one type of earmuff. Id. As for exposure, multiple
employees worked in the Picking Room, and
Respondent acknowledged the noise levels
were
well
above the level
at which
action is required. (Tr. 251.)

Like
the other noise-related violations,
the Secretary established that
this violation is serious. There is a potential for hearing loss when noise levels exceed
the limits the cited standard
sets. Such hearing loss would be permanent. Respondent failed to have multiple components of
a
compliant program for occupational noise exposure. 45

1. Penalty for Citation 2, Items 5a, 5b, and 5c

In terms of penalty, the Secretary proposes
a
single penalty of
$12,471
for Items 5a, 5b,
and 5c. The
violations
have a high gravity. The noise levels were well above the action levels
in several different areas of the facility
where many employees worked. Respondent
took
some steps
towards hearing conservation. (Tr. 315-17, 524-25; Ex. C-10.) The single grouped penalty addresses the good faith shown by these actions. 46 Reductions for size or history are not appropriate for the same reasons discussed in connection with the other affirmed violations. So, Citation 2, Items 5a,
5b, and
5c are affirmed as serious
and a single grouped penalty of $12,471 is assessed for these violations.

A. Citation 3,
Item 2 – 29 C.F.R.
§
1910.95(m)(2)(ii)(E)
–
Keeping Records of Audiometric Testing

The final noise-related alleged violation relates to the
requirement
to
maintain
records of audiometric tests. Specifically, the cited standard requires employers
to maintain records of
employees’
most recent noise exposure assessment . 47

29 C.F.R.
§
1910.95(m)(2)(ii). Respondent
conducted
audiometric testing and maintained
some
records
about this
testing. (Tr.
315, 608,
Ex.
C-26.) However,
the
level of noise in the
area
where the employee works
was not included in
the records. (Tr. 607; Ex. C-26.) Respondent does not
disagree,
but argues it was reviewing and retaining the reports provided to it by an outside consultant. (Resp’t Br. at
24.)

Having
records
of
audiometric testing
does not
preclude finding a violation. The
Secretary showed the records were incomplete
because they did not include the level of noise in the area of the site where the employee worked. (Tr. 607-8; Ex. C-26.) Including such information allows an employer to see if there have been shifts in the hearing of individuals working in noisier areas of the facility. Id. The records showed the results of hearing tests, but not noise levels in the workplace. Id.

As for knowledge, there is no contention that Respondent knew the records were missing
the information required by the cited standard. (Sec’y Br. at
64.) Nor does the Secretary dispute that the HR Manager reviewed the records before filing them. (Tr. 315, 318.) However, she had a limited background in health and safety. (Tr.
187,
190, 198.) When she took on these responsibilities after the former health and safety manager left, she was not asked how much she
understood about hearing conservation. (Tr. 198.) Still, she
was
tasked with the responsibility for this and the other safety responsibilities. (Tr.
195-96.)

Despite her limited background, the HR Manager
was
aware of
noise issues at the facility. As noted above, Respondent was previously cited for noise-related violations
in 2014.

(Ex. C-39 at 30-31.)

Although the
2014 Citations
did not relate to
subpart (m), they did make Respondent aware of the
need for a hearing conservation program
and informed it that action needed to be taken. 48 Further, had the HR Manager or anyone else engaged in a
reasonably diligent
review of the records, they would
have discovered that the summary reports
were missing
required information. See JPC Gr p . Inc.,
22 BNA OSHC 1859, 1861
(No. 05-1907, 2009) (finding knowledge when
the
employer failed
to take steps to discover
the
violative condition).

As discussed, the facility had areas with extremely high levels of noise. Many employees worked in these areas, triggering the need for an effective hearing conservation program.

The records being kept
were insufficient to
allow Respondent to effectively assess the impact of its noise control measures. (Tr.
607-8.)

The Secretary characterizes the violation as other-than-serious and proposes no penalty. The record does not show a potential
for
serious harm
from this violation
alone. (Ex. C-10 at
14-15.) Respondent
was
conducting the required testing and
maintaining the summary reports provided to it by an outside consultant in good faith. (Tr. 315, 318.) When learning that the reports did not have
all the
information
required by the cited standard, it retained a new consultant. (Tr.
524-25.) The record supports the other-than-serious characterization.

No penalty is assessed for this violation.

I. Citation 2, Item
7 – 29 C.F.R.
§
1910.132(a)
–
PPE

Respondent
does not dispute
that PPE was necessary and that it needed to provide it to employees. (Resp’t Br. at 23.) See
Voegele Co.
Inc. v.
OSHRC . , 625 F.2d 1075, 1078 (3d Cir. 1980)
(PPE required when a reasonable person recognizes a hazard warranting its use). W hen
PPE is
necessary,
it
must
be
“used and maintained in a sanitary and reliable condition.” 29 C.F.R.
§  1910.132(a). The Secretary alleges two
Instances of violations
of this standard.

A. Instance (a)

Employees were provided with PPE and were using it at the facility. (Ex. C-17; Tr. 150-55.) The PPE included reusable smocks
as well as
disposable
aprons and plastic sleeves. (Tr. 152-53, 257.) The Secretary argues that this PPE was not being maintained in a sanitary condition. 49 (Sec’y Br. at 60-61.) Employees were not cleaning or removing
disposable
PPE before entering the cafeteria and no rules required
this. (Ex. C-17 at 13; Tr. 157, 259-61.) Nor was there a system to ensure new PPE would be put on after employees finished in the cafeteria. (Tr. 253-54.)

Employees working in the
Kill
Room had the potential to be exposed to animal blood, fecal matter,
and bacteria, such as Campylobacter. (Tr. 325-26.) At the time of the inspection,
there was no
monitor to ensure sleeves, gloves, hairnets,
and aprons would be disposed of before employees entered the cafeteria. (Tr. 253-54.) Likewise, although employees wore protective smocks there was no system to ensure that these were left outside of the cafeteria or cleaned before
an employee entered or exited
the cafeteria. (Tr. 158-59.) During the inspection, employees were photographed in the cafeteria still wearing PPE
including
hairnets,
plastic sleeves,
and
earmuffs. (Tr. 157-59, 259-60; Ex. C-17 at 13.) The HR Manager acknowledged being aware
of
employees sometimes
entering
the cafeteria without removing PPE.

(Tr. 261-62.)

Respondent argues
its Superintendent
was not aware of “someone suffering an illness from exposure in the plant.” (Resp’t Br. 23.) Proof of
an illness or injury
is unnecessary
to prove
a violation of 29 C.F.R.
§
1910.132(a). See e.g.,
Arcadian
Corp .,
20 BNA OSHC
2001,
2009 (No. 93-0628, 2004) (goal of the
OSH
Act is to prevent the first accident);
Bethlehem Steel Corp. v. OSHRC , 607 F.2d 871, 874 (3d Cir. 1979)
(“the statute is violated when a recognized hazard is maintained, whether or not an injury occurs”).

The Secretary
satisfied
his burden
by showing
a reasonable
employer
would know
there was a need for PPE
and also knew, or was capable of knowing,
it was not being “used and maintained in a sanitary and reliable condition.” 50 29 C.F.R.
§
1910.132(a);
Tube-Lok Prods ., 9 BNA OSHC 1369, 1372 (No.
16200,
1981)
(PPE required when a
reasonable person familiar with the circumstances would recognize the need for it). Here, Respondent
does not deny
PPE was necessary
and
knew employees wore PPE into the cafeteria. Nonetheless,
it
failed to take corrective action as of the date alleged in the Citation. The Secretary met his burden and the violation is affirmed.

A. Instance (b)

While Instance (a)
concerned whether the PPE was maintained in a sanitary condition,
Instance (b) concerns
the
reliability
of
the PPE employees
used
in the
Kill
Room,
Picking
Line,
and
Evisceration
Room. The Citation alleges:

employees involved with poultry killing and processing were not provided with, and did not maintain or
use personal protective equipment [in] a reliable and intact condition. … These items were not resilient enough to withstand the work environment and to protect employees
and their clothing.

Exhibit C-17
shows an employee’s exposed skin visible through the torn PPE
in the
Kill
Room. (Ex. C-17 at
7A.; Tr. 153-54.) Respondent argues it was the “employee’s choice” as to how they wore the PPE
provided
to them. (Resp’t Br. at 23.)

The cited standard does not permit such discretion on the part of employees. When PPE is necessary,
29 C.F.R.
§
1910.132(a) requires
the employer
to
ensure it is “used, and maintained
in a sanitary and reliable condition.” The Budd Co .,
1 BNA OSHC 1548, 1550
(No. 199, 1974)
(consolidated),
aff'd ,
513 F.2d 201 (3d Cir. 1975). Respondent
does not claim
employee misconduct
led to the
torn PPE. It
does not allege it had a rule against purposely tearing PPE
or that it instructed employees
of
the risks associated with
doing so. According to the Superintendent,
Birdsboro
provided
items that employees could use to avoid having exposed skin, but there was not a rule
for
their
skin to be covered. 51 (Tr. 155-56.) Respondent
did not instruct
employees to
replace PPE if it stopped serving as a reliable
protective
barrier. It allowed
them
to wear ripped PPE. (Tr. 155-56; Ex. C-17
at 7-8.)

The standard requires more than just the provision of PPE, employers must also ensure it is maintained in a sanitary and reliable condition. See
Otis Elevator v. Marshall , 581 F.2d 1056, 1058
(2d Cir. 1978) (affirming a violation of 29 C.F.R.
§  1910.132(a) and stating,
“Leaving the decision to the discretion of the employee is not sufficient compliance with the regulation”);
Erie Coke , 15 BNA OSHC
at 1563
(requiring employer to provide PPE).

As
stated, it is not disputed that employees working in these areas were exposed to hazardous conditions and that Respondent was aware of this. (Tr. 325-26;
Ex. C-17.) The
Superintendent
knew
employees sometimes wore
torn PPE. (Tr. 154-56.) Employees are required to take animals from containers and prepare them to be killed.

(Tr. 605-6.) The live chickens have sharp claws and beaks that can scratch open exposed skin. Id. The HR Manager was aware that this work potentially exposed employees
to animal
blood and fecal matter. (Tr. 328.) Exposed skin could become infected with animal feces or bacteria, and such
infections could lead to serious illness. (Tr. 604.)

Respondent argues that its
Superintendent was unaware of anyone suffering illness
as a result of being exposed to something at its facility. (Tr. 154-55.) However, the HR
Manager
knew
of one employee who suffered from the symptoms consistent with exposure to the
Campylobacter bacteria. (Tr. 326-27.) Even if that worker’s illness was
unrelated to
bacterial
exposure
at Birdsboro’s facility, the Secretary still showed
employees were
exposed to hazardous conditions
if their PPE was not maintained in a sanitary and reliable manner.

A. Characterization and Penalty

The Secretary argues that the violation was appropriately characterized as serious and proposes
a
penalty of $11,758
for both
Instances. (Sec’y Br. at 63.) While
Respondent
disputes
the merits of
Citation 2, Item 7, it
does not raise any specific argument as to the
serious
characterization
or
the
penalty amount. (Resp’t Br. at
23.) The
Area Director explained the hazards of the workplace and how employees could be
seriously
injured from inappropriate PPE. (Tr. 603-6.) Among other risks, exposure to bacteria in the workplace
could cause infection serious enough to require hospitalization. (Tr.
606.) The record supports the serious characterization.

In terms of the penalty amount,
the Secretary argues that the violation was of moderate gravity. (Sec’y Br. at 63.) As noted above,
the conditions at the facility created the possibility of exposure to
cuts from handling the animals and
exposed skin could become infected, including by
campylobacter. (Tr. 605.) While Respondent provided
PPE, the Secretary showed it did not comply with the cited standard’s requirement to ensure its use and maintenance in a reliable
and sanitary
condition. Because
work
in the
Kill
Room involved
animal
feces, blood, and an odor, Respondent had some difficulty retaining employees
in those positions. (Tr. 309-10.) So, it rotated employees
in and out of the Kill Room. Id. Thus, a number of different employees were exposed to hazards from the failure to comply with the cited standard. See
J. A. Jones , 15 BNA OSHC
at
2214 (assessing the violation’s gravity includes consideration of the number of employees exposed). Respondent has a history of violations, warranting
an increase in the penalty amount. And, as discussed with the other violations,
no reduction for
size is appropriate. So, the Secretary’s proposed penalty of $11,758
is appropriate
and is assessed for Citation 2, Item 7, Instances (a) and (b).

Findings
of
Fact
and
Conclusions
of
Law

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.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1,

a. Item 1a, alleging a willful,
repeat
or serious
violation
of 29 C.F.R.
§  1910.147(c)(4)(i), is AFFIRMED as
Willful;

b. Item 1b, alleging a willful,
repeat
or serious
violation of 29 C.F.R.
§  1910.147(c)(7)(i)(A) is AFFIRMED as
Repeat,

c. Item 1c, alleging a willful,
repeat
or serious
violation of 29 C.F.R.
§ 1910.147(c)(6)(i) is AFFIRMED as
Willful,

and
a
single
penalty of $124,709 is ASSESSED.

2. Citation 2, Item 1, alleging
   a serious violation
   of 29 C.F.R.
   §
   1910.23(a)(8)
   is AFFIRMED as Serious
   and a penalty of
   $5,880
   is ASSESSED.

3. Instances (a) and (e) of
   Citation 2, Item 3b,
   each
   alleging serious violations
   of
   29 C.F.R.
   §
   1910.37(b)(5)
   are AFFIRMED as Serious and a penalty of $2,000 is ASSESSED.

4. Instance (d) of Citation 2, Item 3(b),
   alleging a serious violation of 29 C.F.R.
   §  1910.37(b)(5), or in the alternative 29 C.F.R.
   §
   1910.37(b)(4),
   is VACATED.

5. Citation 2, Item 4, alleging a serious violation of 29 C.F.R.
   §
   1910.95(b)(1), is AFFIRMED as Serious and a penalty of $12,471 is ASSESSED.

6. Citation 2,

a. Item 5a, alleging a serious violation of 29 C.F.R.
§
1910.95(g)(7)(i), is AFFIRMED as Serious,

b. Item 5b, alleging a serious violation of 29 C.F.R.
§
1910.95(g)(8)(ii)(B), is AFFIRMED as Serious,

c. Item 5c, alleging a serious violation of 29 C.F.R.
§
1910.95(i)(3), is AFFIRMED as Serious,

and a
single
penalty of $12,471 is ASSESSED.

7. Citation 2, Item 7, alleging a serious violation of 29 C.F.R.
   §
   1910.132(a), is AFFIRMED as Serious, and a penalty of $11,758 is ASSESSED.

8. Citation 3, Item 2, alleging an
   other-than-serious violation of 29 C.F.R.
   §  1910.95(m)(2)(ii)(E), is AFFIRMED as
   Other-Than-Serious, and no penalty is assessed.

SO ORDERED.

/s/_____

Judge Carol A. Baumerich

U.S. Occupational Safety and Health Review Commission

Dated:
September 23, 2019

Washington, D.C.

"

1
The Joint Pre-Hearing Statement had a typographical error about the date the Citations were issued. There is no dispute they were issued on September 2, 2016. (Tr. 7, 541, 559, 726; Compl. for Docket No. 16-1731 at Ex A; Compl. for Docket No. 16-1575 at Ex. A.)

2
No Citation 1 was issued as part inspection 1131470. The first violation is denoted Citation 2, Item 1.

3
The Commission is an independent adjudicatory agency and is not part of the Department of Labor or OSHA. 29 U.S.C.
§ 661. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the
OSH
Act and has no regulatory functions.

29 U.S.C. § 659(c).

4
The 2014 Citations were the result of two inspections. Inspection 951711 commenced on December 11, 2013 and ended May 27, 2014. (Ex. C-39.) Inspection 951714 commenced on the same day but ended earlier, on May 13, 2014. Id. The citations resulting from these two inspections were issued on June 10, 2014. Id .

5
This penalty amount is less than what was proposed by the Secretary initially. (Exs. C-44, C-45.)

6
As issued, this Citation also refers to a “flutie machine.” The Secretary acknowledges he offered no evidence about such a machine. (Sec’y Br. at 16.)

7
Only in narrow circumstances, when all of the following criteria are met, can an employer avoid documenting the required procedure for each particular machine:

( 1)
The machine or equipment has no potential for stored or residual energy or reaccumulation of stored energy after shut down which could endanger employees; (2) the machine or equipment has a single energy source which can be readily identified and isolated; (3) the isolation and locking out of that energy source will completely deenergize and deactivate the machine or equipment; (4) the machine or equipment is isolated from that energy source and locked out during servicing or maintenance; (5) a single lockout device will achieve a locked-out condition; (6) the lockout device is under the exclusive control of the authorized employee performing the servicing or maintenance; (7) the servicing or maintenance does not create hazards for other employees; and (8) the employer, in utilizing this exception, has had no accidents involving the unexpected activation or reenergization of the machine or equipment during servicing or maintenance.

29 C.F.R.
§
1910.147(c)(4)(i). The four machines relied on by the Secretary all had multiple energy sources, and therefore Respondent could not rely on this exemption. (Tr. 52, 57, 61, 756-58, 760.) Nor is there evidence that Respondent satisfied the rest of the criteria.

8
At one point, counsel, not a witness, mentioned a “USDA map,” but it was never marked as an exhibit and no witness explained what information the document contained or when any information contained therein was in effect at the facility. (Tr. 212.) See CSA Equip. Co., LLC,
27 BNA OSHC 1921, 1926, n.10 (No. 12-1287, 2019) (rejecting the argument that evidence at trial was not sufficiently “fleshed out”);
Regina Constr. Co ., 15 BNA OSHC 1044, 1049 (No. 87-1309, 1991) (relying on the Secretary’s evidence when Respondent failed to rebut it by presenting a witness with direct knowledge).

9
At one point in its brief, Respondent claims that the process of developing the machine specific procedures began in February before the inspection. (Resp’t Br. at 13.) However, it later clarifies that: “After the March 2016 inspection began [Birdsboro] contracted with its outside consultant to produce machine specific LOTO procedures for each machine on-site at [Birdsboro].” Id.
at 15. While at one point, Mr. Lancaster indicated he thought the process started in February, after being shown March 2016 emails, he clarified he was “not sure” about his claim that the process started in February. (Tr. 354.) Ms. Murray-Garcia confirmed she paid LSCI to create machine-specific LOTO procedures
after
the OSHA inspection began on March 2, 2016. (Tr. 277.) In any event, no one indicated Birdsboro had such procedures as of the date alleged in the Citation.

10
LSCI provided Respondent with a “Lockout/Tagout Periodic Inspection Form” in late 2014. (Tr. 294-95.) The form referencing the gizzard machine predates Respondent’s receipt of the form by several months. (Ex. C-19 at 1.) The HR Manager tried to explain this discrepancy by indicating that the Maintenance Manager may have transferred his notes to the form after it was provided by LSCI. (Tr. 295.)

11
Respondent also alleges it had machine manuals with lockout procedures. (Resp’t Br. at 15.) No such manuals were introduced into the record and there is no evidence of what procedures any such manual contained. Mr. Reid, the current Maintenance Manager, said that “when” a machine comes with a manual, that document tells you how to lockout that machine. (Tr. 762-63.) He did not say Birdsboro had manuals for all of its machines or indicate employees were to refer to manuals to understand how to lockout machines. Id. Nor did he say that any manual contains all of the information required by the cited standard, such as authorizations, statements of the intended use of the procedure, explanations of who at Birdsboro has the responsibility for the use of lockout or tagout devices, or the requirement to verify the effectiveness of lockouts. See
29 C.F.R.
§
1910.147(c)(4). Further, regardless of what manuals may have existed or what they might have said, Mr. Reid acknowledged that at the time of the Citation, there were no machine specific LOTO procedures for any machine at the facility. (Tr. 763-64.)

12
After the inspection started, Respondent retained LSCI to create forty-two machine-specific procedures. (Tr. 414-15, 435, 454.)

13
Respondent’s acceptance of the 2014 Citation would also justify characterizing this violation as repeat. See
D.M. Sabia Co ., 90 F.3d 854, 856, 860 (3d Cir. 1996) (“A repeated violation requires no more than a second violation and does not require proof of “flaunting”);
Potlach Corp ., 7 BNA OSHC 1061, 1063 (No. 16183, 1979) (violation is repeated if the same employer was previously cited for a substantially similar violation and both violations resulted in substantially similar hazards). This matter could be appealed to either the D.C. Circuit or the Third Circuit. The Commission generally applies the law of the circuit where a case will likely be appealed. Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

14
The LOTO Plan also contained the text of the cited standard. (Ex. C-21 at 0222.) This supports finding heightened awareness of the requirement. See Lanzo Constr. Co.,
20 BNA OSHC 1641, 1649 (No. 97-1821, 2004) (finding heightened awareness based in part on a safety manual which incorporated the cited standard),
aff’d , 150 F. App’x 983 (11th Cir. 2005) (unpublished).

15
LSCI also conducted a safety compliance survey for Birdsboro in August 2015 which found that the facility lacked machine-specific procedures on how to control hazardous energy. (Tr. 283, 288-89; Ex. C-49.)

16
These facts also distinguish the present matter from
Gen. Motors Corp ., 22 BNA OSHC 1019 (No. 91-2834E, 2007) (consolidated). In that matter, the employer was aware of the LOTO standard and its requirements, but the Secretary did not show that the employer knew its procedure was deficient. 22 BNA OSHC at 1043-44. In this matter, the Secretary showed Birdsboro knew about the LOTO standard and that it needed to have machine specific procedures for production equipment at this facility.

17
These prior citations for the same hazard at issue here could also be a basis for characterizing this violation as repeat. See
D.M. Sabia , 90 F.3d at 856 (single prior violation sufficient to find a violation repeated);
Potlach Corp ., 7 BNA OSHC at 1063.

18
To support a willful characterization the Secretary need not establish both a conscious disregard of a known requirement and a plain indifference to safety. The test is whether the employer intentionally, knowingly, or voluntarily disregarded the requirements of the OSH Act,
or , acted with “plain indifference to employee safety.” Jim Boyd , 26 BNA OSHC at 1111
(quoting
Kaspar , 18 BNA OSHC
at
2181). See also Williams Enters., Inc.,
13 BNA OSHC 1249, 1257 (No. 85-355, 1987) (to find a violation willful, there must be evidence that either (1) the employer knew of an applicable standard and disregarded it, or (2) the employer had such reckless disregard for employee safety the employer would not have cared that the conduct violated a standard).

19
As this Item was grouped with Items 1b and 1c for penalty purposes, the assessed penalty is discussed below.

20
The Citation also notes various other machines. However, as the Secretary acknowledges, the record only includes specific information about the lack of training for these four machines. (Sec’y Br. at 36.)

21
The Secretary does not argue that Respondent failed to appropriately train workers of the hazards of working around equipment that needs to be locked and tagged out. (Tr. 427.) His contention is focused on the sufficiency of the training for the authorized employees tasked with locking out equipment for service, cleaning, or maintenance. (Tr. 427-28.)

22
The Secretary also notes that Mr. Urieta, the Superintendent, did not know what machine specific LOTO procedures were when OSHA commenced the March 2016 inspection. (Tr. 65; Sec’y Br. at 32, Resp’t Br. at 10.) He had been in that role for four years at the time, including when the 2014 Citations, which included LOTO violations, were issued. (Tr. 40.)

23
Ms. Rothrock explained there was a limited amount of time for the training. (Tr. 426, 431.) In addition to LOTO, LSCI also addressed the topics necessary to certify forklift users. (Tr. 431.)

24
This Item is grouped with Items 1a and 1c for penalty purposes. The penalty to be assessed is discussed below.

25
29 C.F.R.
§ 1910.147(c)(6)(i)(C) specifies:
“Where lockout is used for energy control, the periodic inspection shall include a review, between the inspector and each authorized employee, of that employee's responsibilities under the energy control procedure being inspected.”

26
The HR Manager indicated she reviewed the LOTO Plan but acknowledged her review was not very thorough. (Tr. 269.)

27
As discussed above, Mr. Criswell left Birdsboro in 2016, after the start of the OSHA investigation. (Tr. 50; Resp’t Br. at 10.), Mr. Reid began undertaking some of his responsibilities before being promoted to Maintenance Manager later that year. (Tr. 301, 749-52.) No documentation related to any inspections in the year before the date alleged in the Citation was introduced into the record. Mr. Reid explained he did not conduct any LOTO inspections before his promotion. (Tr. 754-55.) The HR Manager acknowledged that if there had been any LOTO Inspection Forms completed between January 20, 2015, and the start of the inspection in March 2016, she would have provided them to the Secretary. (Tr. 300-1.) Respondent declined to call Mr. Criswell to rebut the Secretary’s evidence about the absence of inspections for at least one year. Capeway,
20 BNA OSHC
at
1342-43.

28
The maintenance department had four to six employees. (Tr. 49.) The sanitation department, which took care of cleaning the machines, had fourteen to eighteen employees. (Tr. 48-49.)

29
The Secretary also argues that Respondent could not conduct appropriate inspections because it lacked machine specific procedures for lockouts—Respondent could not inspect the ability of employees to comply with procedures that did not exist. (Sec’y Br. at 41-42.)

30
Each inspection form in the record lists “Brandon Criswell” as the authorized inspector. (Tr. 297-98; Ex. C-19.) The forms appear to refer to seven different authorized employees but not all of the forms include a first and last name. Id . The HR Manager indicated that LSCI provided a blank version of the form in the latter half of 2014
as part of the LOTO Plan. (Tr.
228,
295-96.) When questioned why some of the forms are dated before LSCI was retained, the HR Manager said
Mr.
Criswell, may have transferred his notes from prior inspections to the forms after she instructed him to start using them. (Tr. 295.)

31
As noted, the HR Manager had many responsibilities, and this limited the time available for her to focus on employee safety and health. (Tr. 239-40, 418.)

32
The violation also meets the criteria for being characterized as repeat. See
D.M. Sabia , 90 F.3d at 856, 860. Respondent has twice been made aware by OSHA of the need to conduct inspections to ensure that its employees understand their LOTO responsibilities. Yet, Respondent failed to correct the deficiencies. (Exs. C-39, C-44.)

33
After the Citation’s issuance, OSHA promulgated a revised final rule for fall protection applicable to general industry activities. 81 Fed. Reg. 82,494 (Nov. 18, 2016) (Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems). This opinion relies on the regulatory language in effect when the Citation was issued.

34
Specifically,
the standard mandates that:

Each doorway or passage along an exit access that could be mistaken for an exit must be marked “Not an Exit” or similar designation, or be identified by a sign indicating its actual use (e.g., closet).

29 C.F.R. § 1910.37(b)(5).

35
At the start of the inspection, there was a solid door connecting these two rooms. (Tr. 112; Ex. C-13 at 1.) Sometime before the inspection ended, this solid door was replaced with heavy-duty acrylic curtains. (Tr. 118-22; Ex. C-13 at 4.)

36
Respondent also argues, without support, that its facility complied with “Licenses and Inspections.” (Resp’t Br. at 18.) There is no record evidence of compliance with the requirements of any other regulatory authority. It is not clear what entity or regulations Respondent is attempting to refer to when it makes this claim. Id. So, there is no basis for assessing whether these regulations are equivalent to the cited standard. Even if the exit signage in the facility complied with some other requirement at some point in time, the Secretary established that it failed to comply with the cited standard as of the time alleged in the Citation.

37
This location was also referred to as the packing area. (Tr. 127-28, 132.)

38
Like Instance (a), having some exit information, while insufficient to vacate, is relevant to assessing the gravity of Instance (e).

39
Specifically, the standard requires that:

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

29 C.F.R. § 1910.95(b)(1) .

40
Subsequent remedial measures impact the assessment of the feasibility of abatement and the appropriate penalty. However, the actions do not mean there was no violation as of the date referenced in the Citation.

41
Respondent also argued that after the 2014 Citations it required employees to wear more PPE to protect hearing. (Resp’t Br. at 19.) Because the standard requires the implementation of feasible engineering controls before reliance on PPE, Respondent’s work rule requiring the wearing of earplug and earmuffs does not abate the violation.

42
The presence and use of PPE are relevant to the violation’s gravity.

43
As noted above, it is undisputed that the level of noise in the Picking Room was well above the level at which action is required. (Tr. 251.)

44
Respondent also argues that it provided appropriate initial training about noise. (Resp’t Br. at 22.) Such training does not excuse the failure to provide the choice of hearing protection. 29 C.F.R.
§ 1910.95(i)(3).

45
The Secretary groups this item with items 5a and 5b for penalty purposes. The penalty to be assessed is discussed below.

46
When the Citation was issued, Citation 2, Items 5a, 5b, 5c, and 5d were grouped for penalty purposes. The Secretary declined to lower his proposed penalty after withdrawing Item 5d. (Sec’y Br. at 58-59.) The undersigned agrees that given the high gravity of the remaining violations, $12,471 is the appropriate penalty amount.

47
The cited standard states: “(i) The employer shall retain all employee test records obtained pursuant to paragraph (g) of this section. (ii) This record shall include … (E) Employee’s most recent noise exposure assessment.” 29 C.F.R.
§
1910.95(m)(2)(ii)(E).

48
Mr. Wieder, the Operations Director, was also aware of the standard’s applicability through his involvement with the 2012 Citations, which discussed noise well above action levels on the picking line. See
MJP , 19 BNA OSHC at 1648 (supervisor chargeable with knowledge of the requirement “based on their prior work experience, wherever that experience originates”).

49
The Citation alleges: “These items of protective equipment were not maintained in a sanitary condition, nor completely removed or cleaned during breaks, and were worn into areas where employees were consuming food.”

50
The HR Manager was informed an employee was hospitalized possibly because of something he or she contracted while working at Birdsboro. (Tr. 327.)

51
Before becoming Superintendent, Mr. Urieta worked as an hourly employee and then the supervisor of the Kill Room. (Tr. 38-39, 165.)