S & G Packaging Company, L.L.C.

Plain-English summary

S&G employees adjusted a paper bag machine's paste knob and nozzle while working near two unguarded drive rollers. An employee's hair became entangled in the rollers, causing a severe scalp injury that required several surgeries. The Commission held that the injury established an actual rotating-parts hazard and that employees predictably placed their heads and upper bodies within the danger zone while performing required paste adjustments. S&G knew the rollers were unguarded and that employees worked nearby. Its employee-misconduct defense failed because rules about securing hair and keeping hands away from machinery did not prevent employees from entering the danger zone, and employees were trained to perform some tasks while machines were running. The Commission affirmed the serious machine-guarding violation and a $4,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1)
• Outcome: Serious machine-guarding violation affirmed; $4,000 penalty assessed.
• Key point: Hair and hand-safety rules do not replace physical guarding when normal machine operation predictably brings an employee's head and upper body close to rotating rollers.

Full text (OSHRC public release)

SECRETARY OF LABOR,

   Comp lainant,

                   v.                             OSHRC D ocket No. 98-1107

S&G PAC KAG ING C OM PAN Y, L.L .C.,

   Respon dent,
                   and

UPIU, and its LOCAL #774,
Authorized Employee Representative.

                                      DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
After an employee of S&G Packaging Company, L.L.C. (“S&G” or “Respondent”)
was seriously injured in an accident involving the “drive rollers” of a bag-producing machine
at its Yulee, Florida plant, Occupational Safety and Health Administration (“OSHA”)
compliance officer (“CO”) Linda E. Campbell inspected the plant. On June 16, 1998, OSHA
issued a citation to S&G alleging on e serious vio lation of the O ccupation al Safety and Health
Act of 1970 , 29 U.S.C . §§ 651-7 8, for failing to comply with a machine-guarding standard,
and proposed a penalty of $6300. S& G contested the citation an d penalty, and after a
hearing, Administrative Law Judge Nancy J. Spies affirmed the citation and assessed a
penalty of $400 0. At issue o n review is whether the judge e rred in affirming the citation and
in rejecting S&G ’s defense of unpre ventable em ployee misco nduct. For the reasons stated
below, we affirm the judge’s decision.

                                                                            OSHRC N o. 20

I. Background
The subject of the citation is machine 37, one of approximately fifty bag-producing
machines at the plant. 1 The ma chine wa s oblong, w ith compo nents of v arious heig hts
supported by metal fram ework. P aper was fed into it fro m a large roll at one end, and
finished bags exited the machine at the other end. Near the mid-section of its “operations”
side was the paste “knob” and “nozzle” area where paste was applied to the paper. Th e paste
knob was located on the outside of the machine’s frame, approximately 17 inches above the
floor. The nozzle was located behind the knob, “a couple of inches” inside the machine and
was also appro ximately 17 inc hes abov e the floor. A bove and slightly to the right of the
knob and nozzle area on the inner side of the frame were two rotating, horizontal “drive
rollers” that stretched from the operations side to the rear side. The knob was 25 inches from
the “drive shaft” roller and 20 inches from the “driven web roller.” 2 The drive shaft roller
was directly above the driven web roller, and the gap between them measured 1.25 inches.
Also above and slightly to the right of the knob and nozzle area was a yellow metal
box that protruded 8 to 10 inches from the outside of the frame, covering gears on the ends
of the drive rollers. Behind this box and several inches above the drive shaft roller was a
narrow bar that stretched from the operations side of the machine to the rear side. Behind
the box and to the left, there were several non-powered “web” rollers.3 Behind the box and
to the right, the drive rollers were completely un obstructed . They were clearly visible to
anyone walking by the mach ine. Immediately to the right of the drive rollers, the m achine’s

   1
    At the time of the hea ring, the machines w ere “for the most part, . . . 30-plus years

and older,” but CO Campbell testified that S&G’s plant manager, Scott Garner, told her
that the drive rollers at issue were “homemade”; it is unclear from the record when they
were integrated into the machines.
2
The drive shaft roller was part of the mechanics of the printing press and did not
contac t the pap er. The driven web ro ller help ed to pu ll the pap er throu gh the m achine .
3
The CO determined that the web rollers did not require guarding.
base was narrower and had a concave shape.4
Bag machine operators (“tenders”) spent mo st of their time to the far right o f the paste
knob and nozzle area packaging finished bags, but were also required to adjust the knob and
nozzle when neede d. Three or four times per shift, when the “seam paste alarm” sounded,
the tender walked by the drive rollers to the kn ob and n ozzle area. H ere, the tende rs would
come within 1 to 2 feet of the rotating drive rollers as they bent dow n, knelt, or squ atted to
reach the knob and nozzle. If the paste on the bags was m isaligned with the seams of the
bags, the tender turned the knob to move the nozzle. If the paste was “skipping,” the tender
reached into the machine to grab the nozzle and pick off any hardened paste or accumulated
debris.5 Only if there was no paste on the bags would the tender shut off the machine.
On April 14, 1998, bag machine tender Victoria Loveland was working on machine
37, as she frequently had don e since joining S&G a little more than a year earlier. The seam
paste alarm had sounded at least twenty times during her shift, but she h ad not bee n able to
correct the problem or get anyone to help her. When the seam paste a larm soun ded again
around 5:40 a.m., L oveland, w ho was le ft-handed , walked to the operations side of the
machine, took the knob with her left hand, and wa ved to a co-worker. She testified that “[i]n
[the] blink of an eye” her hair became entangled in one or both of the drive rollers, and she
found herself “sitting on the floor scalped.” Loveland had to undergo several rounds of
surgery to treat her physical injuries.
As a result of her investigation, CO Campb ell conclud ed that either L oveland’s hair
or hair accessory could have gotten caught in the rollers and drawn into the machine. In
determining that the drive rollers were a hazard, she considered that the “rollers [were]

   4
   According to the testimony, all of S&G’s bag machines were made up of similar

componen ts, but differed slightly in size and configuration . Ray Bennett, S&G ’s
maintenance supervisor, testified that approximately 10 of the machines at the Yulee plant
had drive rollers configured like those on machine 37.
5
According to the testimony, employees had to check the paste application process
while the machine was running because the electric “paste pump” operated only while the
mach ine wa s runnin g.
rotating at approximately 450 rpm[], [that there was] static electricity buildup ,” 6 that
employees were required to perform operations in the roller area, and that an accident
occurred there. She concluded that the drive rollers presented a “rotating caught-in” hazard
for employees checking the paste application process: “There [are] two rollers [that] rotate.
When you look at this machine and you see the job that has to be done fro m time to tim e, it
is obvious that . . . . [s]ome part of your body can be caught in the rotating rollers which then
pull you in.” In the citation, the Secretary alleged that the mach ine “had [drive] rollers [that]
were unguarded, exposing employees to being caught in the rotating parts” in violation of 29
C.F.R. § 1910.21 2(a)(1). 7
In affirming the citation, Judge Spies held that “S&G does not dispute that [section]
1910.212(a)(1) applies to the Potdevin Bag M achine at issu e in this case [or] that the drive
shaft rollers in which Loveland’s hair became entangled were not guarded .” She also h eld
that S&G’s employees were exposed to the unguarded drive rollers and that because the
unguarded rollers were in plain view, S&G had knowledge of the cited condition.
Add ition ally, she rejected S&G’s affirmative defenses of unpreventable employee

   6
    Loveland testified that near the paper roll area of the ma chine, an employee’s shirt

would get “lift[ed] . . . if it’s a thin shirt,” but that static electricity generally did not make
her hair stand on edge because she wore it in a tight bun and did not “let that much hang
out to do tha t.” Shift supe rvisor John Freeman conclude d in his post-a ccident rep ort to
the safety committee that “[t]he only reason the young lady got her hair caught . . . was
once in a lifetim e whe n static e lectricity pu lled her h air into th e belt.”
7
The stand ard provid es in relevan t part:

   § 1910.212 General requirem ents for all machines.
   (a) Machine guarding—(1) Types of guarding. One or more methods of
   machine guarding shall be provided to protect the operator and other
   employees in the machine area from hazards such as those created by point
   of ope ration, in going n ip poin ts, rotating parts, flyin g chips and sp arks.
   Examples of guarding methods are—barrier guards, two-hand tripping
   devices, electronic safety devices, etc.

misconduct and greater hazard.8
II. Discussion
To establish a vio latio n, the Secretar y mus t prove by a preponderance of the evidence
that (1) the cited standard applies; (2) its terms were not met; (3) employees had access to the
violative condition; and (4) the employer knew, or with the exercise of reasonable diligence
could have known, of the v iolative c onditio n. See Mosser Constr. Co., 15 BNA OSH C 1408,
1411, 1991-93 CCH O SHD ¶ 2 9,546, p. 39,902 (N o. 89-1027, 1991 ).
Section 1910.212(a)(1) requires the Secretary to prove that a hazard within the
meaning of the stan dard ex ists in the emplo yer’s wo rkplace . See La dish C o., 10 BNA OSHC
1235, 1982 CCH OSH D ¶ 25,820 (No. 78-1384, 1981). Under the circumstances here, the
injuries Loveland received by contacting the machine clearly establish the existence of a
hazard. In addition, it is undisputed and clear from the record that the drive rollers were not
guarded.
To establish access under Commission precedent, the Secretary must show either that
Responden t’s employees w ere actually exp osed to the v iolative cond ition or that it is
“reasonab ly predictable by operationa l necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger.” Fabric ated M etal Pro ds., 18
BNA OSH C 107 2, 1074, 1 998 CCH OSH D ¶ 31,463, pp. 44,506-07 (No. 93-1853, 1997)
(citing Gilles & Cottin g, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ¶ 20,448, p,
24,425 (No. 504, 1976)). Loveland’s injuries establish actual exposure to the unguarded
drive rollers. Cf. Phoe nix Roofin g, Inc., 17 BNA OSHC 1076, 1079, 1993-95 CCH OSHD
¶ 30,699, p. 42,606 (No. 90-21 48, 199 5), aff’d without published opinion, 79 F.3d 1 146 (5th
Cir. 1996) (fact that an employee fell through a skylight unquestionably established actual
exposure to a fall hazard). In addition to actual exposure, the record also shows that access
to the violative condition was reasonably predictable. Although the tenders had no
operational necessity to contact the rollers directly, they were required by operational
necessity to check the paste application process, which put their upper bodies and heads

   8
       The affirmative defense of greater hazard is not at issue on review.

within the zone of dan ger. See RGM Cons tr. Co., 17 BNA OSHC 1229, 1234, 1993-95 CCH
OSHD ¶ 30,754, p. 42,729 (No. 91-2107, 1995) (holding that the zone of danger is “that area
surrounding the violative condition that presents the danger to employees [tha t] the standard
is intended to prevent”). Th e record shows th at their uppe r bodies an d heads w ere 1 to 2 feet
or less from the drive rollers w hen they stood directly in front of th e paste kno b and no zzle
and bent dow n from the waist to reach the knob or nozzle.9 Neither the framework nor the
yellow metal box would preven t contact with the drive rollers when th e tenders w ere in this
position. If an employee stood to the right of the knob and nozzle, bending, kneeling, or
squatting to reach the knob would put the tender’s head and upper body even closer to the
right side of the rollers, where they were completely unobstructed.10 See ConAgra Flour
Milling Co., 16 BNA OSH C 1137, 1149-50, 1993-95 CCH OSHD ¶ 30,045, pp. 41,243-44
(No. 88-1250, 1993) (finding exposure where emplo yees worked 1 to 1.5 feet away from
unguarded belts and pulleys and neither the operation nor the configuration of the machine
would preven t the em ployees f rom ap proach ing the b elts and pulleys), rev’d in part on other
grounds, 25 F.3d 6 53 (8th C ir. 1994); cf. Mosser, 15 BNA OSHC at 1413, 1991-93 CCH
OSHD at p. 39,904 (finding exposure where employees performed various tasks in close
proximity to a crane’s moving gears). Thus, we conclude that the tenders worked within the
zone of danger of the drive rollers and were exposed to the hazard.11

   9
    This testimony was corroborated by employee Gary Scipio, who had operated a

number of different machines, including machine 37, and who testified that he had
reached “ [r]ight in the sa me area” of the ma chine wh ere the accid ent occurre d to
straighten folded paper, as he was trained to do.
10
The judge’s finding that a left-handed employee would get even closer to the
drive rollers than a right-handed employee is supported by the record. Loveland testified
that because she is left handed, she was “even closer” to the machine than the other
employees. Scipio, who testified that he would bend down from the waist and would be
“right up against” the frame of the machine, described Loveland’s position as a result of
her being left-handed as “backwards,” which would place her head closer to the right and
unobstructed side of the drive rollers.
11
The judge did not err in finding that an employee could fall and come in contact
(contin ued...)
 To establish employer knowledge, the Secretary must show that the employer was
aware of the physical conditions constituting the violation. Here, it is clear that S&G had
actual knowledge that the drive rollers were not guarded. Respondent concedes in its brief
that “the rollers in this area are open and o bvious: there is nothing to block the operator’s
view of the rollers as she is walking by the machine.” CO Campbell and several employees
testified that the rollers were in plain view and visible to anyone who walked by the machine,
and the photogra phic exhib its fully support this point. Additionally, CO Campbell testified
that Scott Garner, S& G’s plant manag er, and Paul Wed yck, S&G’s safety manager, told her
during the investigation that they did not consider the rollers a hazard but admitted that they
were aware of the rollers’ un guarded condition. 12 Contrary to S&G’s contentions, the

   11
     (...continued)

with the rolle rs. Lovelan d testified that w hen the pa per broke and the ten der had to
rethread the machine , there were loose piece s of pape r on the floo r. CO C ampbell
described them as a tripping hazard. Moreover, Loveland and Bennett stated that
“[s]om etimes” there w as paste on the lo ose pap er and/o r spilled p aste on the floo r.
Loveland testified that tenders were advised that when they had to rethread the machine,
they should “get the machine running before you clean up your mess to save down time.”
Loveland also testified that on at least two occasions, she observed grease on the floor
near the roller area of her machine. Moreover, relief leadman and mechanic Stanley King
confirm ed that a n emp loyee cou ld conta ct the rol lers if he or she “ fell into s ometh ing . . .
or stum bled.”
12
Respondent suggests that OSHA’s failure to cite the drive rollers during previous
inspections is proof tha t there was “ [n]o [a]p parent [n]e ed” for gu arding. It is w ell
established, however, that the Secretary’s failure to cite a condition does not amount to a
determ ination t hat the c onditio n does not con stitute a v iolation . See Seibel Modern Mfg.
& Weld ing Co rp., 15 BNA OSH C 1218, 1223-24, 1991-93 CCH OSHD ¶ 29,442, pp.
39,679-81 (No. 88-821, 1991) (and cases cited therein). Moreover, there is no evidence
that OSHA made any representations that deprived Respondent of fair notice of the
standa rd’s req uireme nts, and S&G does n ot conte nd othe rwise. Com pare M iami In dus.,
15 BNA OSH C 1258, 1264, 1991-93 CCH OSHD ¶ 29,465, p. 39,742 (No. 88-671, 1991)
(OSHA’s affirmative representations that it considered the employer in compliance
depriv ed the e mployer of fair n otice), aff’d in relevant part and set aside in part without
published opinion, 983 F.2d 106 7 (6th Cir. 1992).

Respondent’s additional argument that “no one in the industry guards the [drive] rollers”
(contin ued...)
Secretary need not show th at “S&G knew or should have known the rollers exposed
employees to a hazard.” See Phoenix Roofing, 17 BNA OSHC at 1079 & n.6, 1993-95 CCH
OSH D at p. 42,6 06 & n.6 ; Peterson Bros. S teel Ere ction C o., 16 BNA OSH C 1196, 1199,
1993-95 CCH OSHD ¶ 30,052 , p. 41,29 9 (No . 90-23 04, 199 3), aff’d, 26 F.3d 573 (5th C ir.
1994). Howeve r, the record s hows tha t S&G had kno wledge th at its employees worked in
close proximity to the unguarded drive rollers.
We conclude, therefore, that the Secretary established a prima fac ie violation of
section 1910.212(a)(1 ).
III. Unpreventable Employee Misconduct
S&G raised the defense of unpreventable employee misconduct. Under Commission
preceden t, to prevail on the affirmative defense of unpreventable employee misconduct, an
employer must show that it has (1) established work rules designed to prevent the violation,
(2) adequately communicated these rules to its employees, (3) taken steps to discover
violations, and (4) effectively enforced the rules w hen vio lations h ave be en disc overed . See
Propellex Corp ., 18 BNA OSH C 1677, 1682, 1999 CCH OSHD ¶ 31,792, p. 46,589 (No. 96-
0265, 1 999).

   12
     (...continued)

does not negate employer knowledge. As a threshold matter, industry practice is not
relevant where a standard prescribes employer conduct in specific terms and is not vague.
See C levelan d Con sol., 13 BNA OSH C 1114, 1117, 1986-87 CCH OSHD ¶ 27,829, pp.
36,428-29 (No . 84-696, 1987). M oreover, the evidence o n this point does not supp ort
S&G ’s position. W edyck testified th at to his knowledge no one in the industry guards
these rollers. H oweve r, Wedyck w as not an ex pert on indu stry practice, and h is
experience appears limited to work at two other companies that manufactured bags,
including a parent company of S&G. Although John Brabham, who worked at another
bag plant before joining S&G as a machine adjustor, testified that his former employer
had machines with similar unguarded drive rollers, he admitted on cross-examination that
many of its machines were equipped with “interlocks” and “paper break switches” that
would shut down the machines under certain circumstances. Additionally, King, a relief
leadman and m echanic, testified that some m achines, including a num ber of S&G ’s
machines, have “LS-1” switches that shut off the machine if the paper breaks, edge
guides that adjust automatically without paste nozzles, and paste knobs at waist level as
opposed to the 17-inch level for the machine at issue here, factors that might bear on
whether guarding would be required.
 S&G had work rules addressing some of the hazards posed by the machinery. A
March 12, 1998 memorandum provides in relevant part: “Employees having hair shoulder
length or longer must keep it tied back so it does not swing around shoulders to the front or
put it up under a hat. This must be done for your protection and to keep clothes, hands and
hair from getting caught in any machinery.” S&G’s “Safety Rules and Procedures” booklet
provides in relevant part: “Secure long hair when work ing aro und all m oving e quipm ent.”
Add ition ally, Respon dent’s “Job Safety for New Employees” booklet provides in relevant
part: “Keep h ands and feet awa y from mov ing mach inery” and “D o not put you r hands in
any piece o f mov ing ma chinery.” 13 These rules, however, would not prevent the violation.
Spe cific ally, the rules as written did not prohibit the tenders from bending down, kneeling,
or squatting to make a djustments to the knob and nozz le, which p ut their upper bodies and
heads within 1 to 2 fe et of the rotating drive ro llers, i.e., within the zone of danger. See
Mosser, 15 BN A OS HC at 1 415, 1991-93 CCH O SHD at p. 39,906 (rejecting the defense
because the employer’s rule prohibiting employees from “greasing” a crane’s gears while the
gears were engaged did not prohibit employees from perform ing other tasks near the gea rs
while they were enga ged).
The focus of S&G ’s defense relates to the im plementa tion of its hair rule and the
condition of Loveland’s hair on the night of the accident. As noted above, we find that
operation of the ma chines plac ed emplo yees’ upper b odies and heads w ithin the zone of

   13
     The reco rd show s that S&G made so me effo rts to comm unicate its rules to its

employees. The safety mem orandum stating the h air policy was “posted . . . on the cork
board where the schedules [were] hung.” S&G covered its “Safety Rules and
Procedures” booklet “at least once a year and also at one of [its] monthly training
sessions.” New employees received copies of S&G’s “Job Safety for New E mployees”
booklet, completed an orientation, and worked closely with trainers for several weeks
before be ing required to operate th e machin ery on their ow n. S&G also made efforts to
discover v iolations of its w ork rules; sup ervisors and safety comm ittees regularly
inspected the plant for problems. Additionally, S&G had a written disciplinary plan
entitled “Saf ety Infractions a nd Reco mmend ed Discip linary Action” which se t out a
system of progressive discipline: “First occurrence, documented verbal warning and
counseling[.] Secon d occurrence, docu mented written w arning and coun seling. Third
occurrenc e, docum ented three day suspens ion witho ut pay and co unseling. F ourth
occurr ence, te rminatio n of em ploymen t.”
danger. Thus, even strict implementation and em ployee compliance w ith the employer’s
hairstyle rule would not have obviated the guarding requirement imposed by the standard.14
The comma nd not to p ut hands in moving machine ry was also no t implemented as
written, and in fac t, employees were trained to perform tasks that violated it. When Duane
Foreman, a tender, w as asked w hether he w as trained to sh ut off the m achine w hen the pa ste
alarm sounded, he testified “[o]ur supervisor used to tell us if it was something small, keep
it running. A nd, that’s a sm all thing. If you ca n fix it right away, that’s a small thing. You
don’t have to shut it of f for tha t.” When questioned about whether he should shut off the
machine when performing the paste operation because it amounte d to reaching into moving
mac hine ry in violat ion o f S& G’s rules, he resp onded, “ [t]ec hnic ally, you do, but the way I
was trained, you know, th ere is nothing back there that would hurt you, back where the seam
paste nozzle is. And , the wa y I go in the re, there is nothin g there th at wou ld hurt you .”
When Forema n was ask ed wha t would h appen if a supervisor saw him reaching into the

   14
     Commissioner Eisenbrey notes that, in any event, S & G did not meet its burden

to establish that Loveland’s hair failed to comply with company policy. The judge found
that “[t]he evidence was convincing that having one’s hair in a ponytail fully met the
requirements of the work rule, at least as it was enforced by S&G.” S&G argues that the
judge’s finding “ignores that part of the rule that clearly states that hair must be tied back
in a manner that it does no t swing in front of the sh oulders.” Yet, one of R espondent’s
own w itnesses, Edn a Parker, a “ bag collato r operator” w ho served on her shif t’s safety
committee and trained new employees, testified explicitly that prior to the accident, long
hair had to be pulled back from the sides of the face, but that wearing a ponytail or
banan a clip w as perm issible.

Loveland testified that she had her hair tied up in a bun on the night of the accident that
“probably got messy,” but “didn’t fall down or anything.” S&G relies on the testimony of
machine adjustor B ruce Tub man w ho testified th at he was familiar w ith the S& G hair
policy an d that on the nigh t of the a cciden t Love land’s h air did n ot com ply with it.
Tubman’s description of Loveland’s hair, however, reveals his apparent mistake. Thus,
he described Loveland’s hair as “a thing in the back of her head right up to her head and
the hair wa s hanging down,” like a ponytail. M ost significan tly, he stated that her hair
went down “[t]o about her shoulders, maybe not quite that far.” Even if some of
Loveland’s hair hung down from her bun like a ponytail, and even if Respondent’s policy
would prohibit a ponytail that could swing in front of the shoulders, Tubman’s testimony
does not establish that Loveland’s hair hung down far enough to swing in front of her
shoulders, or otherwise violated S&G’s hair rule.
machine to adjust the seam paste nozzle, he responded that the supervisor would not say
anything becau se “[e]v erybody do es it.” Additionally, as noted, e mployee G ary Scipio
testified that when dealing with problems involving folded paper, he would reach “[r]ight in
the same area” w here Loveland’s accident oc curred, rub h is hand against the folde d paper,
and straighten it out while the machine was running, as he was trained to do.
The record shows that Loveland received reprimands after she injured her thumb
while cleaning “built-up” ink from a moving impression roller and after she injured her hand
in a “paper feed slide” while pulling paper out of a moving “bander.” However, Loveland
pointed out that the bander had a different configuration from the machine she usually
operated and that she simply m isjudged w here in the machine she was placing her hand. She
emphasized that the reprimand was not for reac hing in w hile the machine was running, but
for reaching in the wrong way. Indeed, when asked whether she was instructed to never
reach into a machine while it was running, Loveland stated, “No, . . . Leo Cryder, [who] was
my first trainer, actually showed me how to clean the print rollers while it w as running with
a putty knife. That’s how I learned how to do that, and I did it. So, no, the trainers . . . are
not [as saf ety] consc ious as w hat [the safety bo oklet] sa ys.” We conclude that S&G’s rules
were inadequate to prevent the violation and, therefore, that its defen se of unp reventable
employee misconduct must fail. Accordingly, we agree with the judge and affirm the
citation.
IV. Penalty 15
In assessing penalties, the Commission must give due consideration to the employer’s
prior history and good faith, the size of the employer’s business, and the gravity of the cited
violations. 29 U.S.C. § 666(j); see J.A . Jones C onstr. C o., 15 BNA OSH C 2201, 2214, 1991-
93 CCH OSHD ¶ 29,964, p. 41,033 (No. 87-2059, 1993). The Secretary proposed a penalty
of $63 00, and the judg e assess ed a pe nalty of $ 4000.
On review, we give S &G credit for its history because there was no evidence of other
recent violations. In regard to good faith, we note that S&G had a written safety program

   15
        The parties stipulated that the violation, if found, was serious.

that it distributed to all employees, trained its new employees extensively, conducted safety
meetings, and had safety committees that met regularly and inspected the plant for problems.
On balance, therefore, we give S&G credit for good faith. In regard to size, we note that
during the time in qu estion, S&G was a large employer, with 279 employees. Finally, the
gravity of the violation in this case was high. While the likelihood of an accident was not
great, the consequences in the event of an accident were severe. We therefore find the
penalty of $4000 assessed by the judge to be appropriate.
V. Order
For the reasons set forth above, we affirm a seriou s violatio n of 29 C.F.R . §
1910.212(a)(1) and assess a penalty of $4000.

                                              /s/
                                              Thomasina V . Rogers
                                              Chairman




                                              /s/
                                              Ross Eisenbrey
                                              Commissioner

Date: August 2, 2001
Secretary of Labo r,
Comp lainant,

              v.                                 OSH RC D ocket N o. 98-1107

S & G Packa ging C ompa ny, L.L .C.,
Respon dent,

              and

UPIU, and its Local No. 774,
Authorized Employee
Representative.

Appearances:

      Leslie John Rodriquez, Esquire             John T. Groark, Esquire
               U. S. Department of Labor                  Clausen & Miller
               Office of the Solicitor                    Chicago , Illinois
               Atlanta, Ge orgia                                   For Respondent
                        For Complainant
                                                 Ms. Victoria Loveland
                                                         Yulee, Florida
                                                                  For Respondent

Before: Administrative Law Judge Nancy J. Spies

                                     DECISION AND ORDER
   S & G Packaging Company, L. L. C., contests a citation issued to it by the Secretary on

June 16, 1998. The Secretary issued the citation following an inspection of S & G’s facility by
Occupational Safety and Health Administration (OSHA) compliance officer Linda Campbell on
April 16 to April 22, 1998. Campbell inspected the facility after OSHA received notice that S & G
employee Victoria Loveland was scalped on April 15, 1998, when her hair became entangled in the
drive shaft rollers of a paper bag machine. The Secretary cited S & G for a serious violation of
§1926.212(a)(1) for failing to provide adequate machine guarding for the drive shaft rollers.
 S & G admits jurisdiction and coverage. A hearing was held in this matter on January 20
and 21, 1999, in Jacksonville, Florida. The United Paperworkers International Union (UPIU) and
its Local Number 774 elected party status as the authorized employee representative in this case.
The Union was represented at the hearing by Victoria Loveland, the injured employee. The
Secretary and S & G have filed post-hearing briefs. S & G contends that it was not reasonably
foreseeable that an employee would bring his or her head within the zone of danger of the unguarded
drive shaft rollers. S & G also asserts the affirmative defenses of unpreventable employee
misconduct and greater hazard.
For the reasons set out below, the undersigned finds that S & G committed a serious violation
of §1926.212(a)(1).
Background
S & G manufactures paper bags at its plant in Yulee, Florida.16 S & G owns and operates
several machines used to produce paper bags and grocery sacks for fast food chains and grocery
stores (Tr. 268).
Victoria Loveland began working at S & G on March 17, 1997, almost 13 months before her
accident. S & G assigned Loveland to be the bag machine tender for Potdevin Bag Machine #37
(Exh. R-15; Tr. 16).
The paper bag machine has a roll mounted in the rear from which paper is fed into the
machine and then threaded through drive shaft rollers (also referred to as web rollers) in the center
of the machine. The drive shaft rollers move the print unit that prints logos on each paper bag. From
here, paper is fed to a former, where the bag is actually made and sent out to the front of the bag
machine. The bag machine tender packs bags at the front of the machine and does not need to go
to the side of the machine, unless the roll must be changed, the paper breaks, or the seam paste alarm
goes off (Exhs. C-4, R-5, R-6, R-7, and R-8; Tr. 16-20, 66-69, 97, 103, 137, 161). The drive shaft
rollers are 1¼ inches apart (Exh. C-2).
The seam paste sector of the machine consists of an applicator, a knob, a nozzle, and an
electric pump. The paste flows from the pump and through the nozzle onto the paper. The nozzle,

   16
     S & G is a limited liability corporation formed between Stone Container

Corporation and Gaylord Container Corporation. On November 18, 1998, Jefferson
Smurfit Corporation and Stone Container Corporation merged, forming Smurfit-Stone
Container Corporation.
which is located inside the knob, adjusts the paste alignment. The knob on the outside of the
machine flips the nozzle to enable the machine tender to determine if the seam paste is flowing
(Exh. C-4; Tr. 17, 24-26, 33, 35, 44, 91). The seam paste knob and nozzle are located 2 feet below
the drive rollers and 17 inches above the floor level (Exh. R-12; Tr. 26-27, 73, 76-77). The seam
paste knob is located on the right side of the machine, if one is standing at the back of the machine,
facing forward.
The seam paste alarm or sensor alerts the machine tender when a bag is dry. S & G trains
its bag machine tenders to check the seam paste application process for problems when the seam
paste alarm goes off (Tr. 23, 61). The seam paste alarm normally goes off three or four times during
an eight-hour shift (Tr. 22, 98, 121).
When the seam paste alarm goes off, either a bag has not gotten enough paste, the paste is
too thick or skipping, or the seam paste needs adjustment. If there is no paste at all on the bag, the
bag machine tender shuts off the machine, which stops the seam paste from flowing through the
pump. Otherwise, the bag machine tender continues to run the machine to determine if the paste is
too thick, if the paste is blocked, or if there is some other reason why the seam paste is not being
applied properly. If this is the case, while the machineis running the bag machine tender must adjust
the knob or the nozzle, or both; or the tender must clear hardened paste from the nozzle to keep the
paste flowing (Tr. 17, 23, 25-26, 36, 44, 61-62, 81, 89, 91-92, 98-101, 104-105, 109-110, 121-122,
129-130, 137-138, 146-147).
To reach the seam paste knob and nozzle, the bag machine tender must either bend down,
squat, or kneel beside the side frame of the bag machine (Tr. 37, 75-76, 100-101, 112, 122, 126,
131-132). The frame of the machine is between the bag machine tender and the drive shaft rollers.
The rollers are not guarded (Tr. 72, 76; Exh. R-11).
On April 15, 1998, at approximately 5:40 a.m., Loveland, who is left-handed, responded to
the seam paste alarm (Tr. 21, 415). The seam paste alarm had gone off approximately 20 times
during her shift. Because of the unusual frequency of alarms, Loveland had asked adjustor Kevin
Davis to check machine #37, but he did not do so. Loveland bent at the waist as she stooped to
adjust the knob with her left hand. Somehow her hair became entangled in the drive shaft rollers and
her scalp was torn from her head. Loveland managed to jerk herself away from the rollers and turned
off the machine. She required several major surgeries to treat her injuries. Due to the trauma of the
accident, Loveland cannot recall specific details regarding how the accident happened (Tr. 416-417).
Alleged Serious Violation of §1926.212(a)(1)
The Secretary alleges that S & G committed a serious violation of §1926.212(a)(1), a general
standard, which provides:
One or more methods of machine guarding shall be provided to protect the operator
and other employees in the machine area from hazards such as those created by point
of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples
of guarding methods are--barrier guards,two-hand trippingdevices, electronic safety
devices, etc.

    The Secretary has the burden of proving her case by a preponderance of the evidence.
    In order to establish a violation of an occupational safety or health standard, the
    Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
    employer’s noncompliance with the standard’s terms, (c) employee access to the
    violative conditions, and (d) the employer’s actual or constructive knowledge of the
    violation (i.e., the employer either knew or, with the exercise of reasonable diligence
    could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
S & G does not dispute that §1910.212(a)(1) applies to the Potdevin Bag Machine at issue
in this case, nor does it dispute that the drive shaft rollers in which Loveland’s hair became entangled
were not guarded. S & G argues that the Secretary failed to establish the there was foreseeable
employee access to the drive shaft rollers. It also asserts that it had no knowledge that a violative
condition existed.
Employee access
In Rockwell Intl. Corp., 9 BNA OSHC 1092, 1097-1098 (No. 12470, 1980), the Commission
held:
The mere fact that it was not impossible for an employee to insert his hands under the
ram of a machine does not itself prove that the point of operation exposes him to
injury. Whether the point of operation exposes an employee to injury must be
determined based on the manner in which the machine functions and how it is
operated by the employees.
 The employer is not required to protect against every conceivable injury that could possibly
occur during the use of a machine. The Commission has stated:
[I]n order for the Secretary to establish employee exposure to a hazard she must show
that it is reasonably predictable either by operational necessity or otherwise
(including inadvertence), that employees have been, are, or will be in the zone of
danger. We emphasize that, as we stated in Rockwell, the inquiry is not simply
whether exposure is theoretically possible. Rather, the question is whether employee
entry into the zone of danger is reasonably predictable.

Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and
footnotes omitted).
S & G argues that there is no operational necessity for a bag machine tender to come within
the zone of danger of the drive shaft rollers. S & G cited the testimony of several of the employee
witnesses in support of this argument, but their testimony is not unequivocal on this point.
Bruce Tubman is an adjustor for S & G (Tr. 134). S & G’s counsel asked Tubman if there
was any reason for Tubman to come into contact with the drive shaft rollers when responding to a
seam paste alarm. Tubman said there was not. However, when S & G’s counsel went on to ask,
“Are you at all times usually at least two feet or more away from the driver rollers?” Tubman
responded, “Not at all times, no, sir” (Tr. 148).
Edna Parker is a bag collator operator for S & G (Tr. 226). She was a bag machine operator
for approximately 15 years and has trained many new employees in the use of the bag machines
(Tr. 226-227). She testified that there was no operational reason for a machine tender to come into
contact with the drive shaft rollers (Tr. 233), but she also stated that she considered the unguarded
drive shaft rollers to be a safety concern (Tr. 231).
Stanley King is an S & G employee and president of UPIU Local 774 (Tr. 221). When asked
if there was any operational reason for a machine tender to come into contact with the drive shaft
rollers, he responded, “Not those two parts, unless they fell into something of that sort or stumbled”
(Tr. 222). It is noted that some grease, ink, or paste may be present on the floor near the paper bag
machine, presenting a potential slipping hazard (Tr. 313-314-413).
Counsel for S & G repeatedly framed the question as beingwhether there was any operational
reason for the bag machine tender to come into contact with the rollers. This question
misrepresents the issue. The issue is not whether employees could be brought, by operational
necessity, into contact with the rollers; the issue is whether operational necessity could bring
employees into the zone of danger of the rollers, i.e, the area surrounding the rollers.
The Secretary may prove employee exposure to a hazard by showing that, during the
course of their assigned working duties, their personal comfort activities on the job,
or their normal ingress-egress to and from their assigned workplaces, employees have
been in a zone of danger or that it is reasonably predictable that they will be in the
zone of danger . . . . The zone of danger is determined by the hazard presented bythe
violative condition, and is normally that area surrounding the violative condition that
presents the danger to employees which the standard is intended to prevent.

RGM Construction Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995) (citations omitted).
The record establishes that it was reasonably predictable that operational necessity would
require the machine bag tenders to be in the area surrounding the unguarded drive shaft rollers that
presented a danger to the employees. The seam paste knob is located 17 inches above floor level,
requiring anyone adjusting it to bend, stoop, squat, or kneel down. The knob is located 2 feet below
the drive shaft rollers. The upper body of anyone reaching for the knob would necessarily be brought
into the zone of danger of the rollers.
S & G cites several cases in support of its claim that it was not reasonably predictable that
an employee would come within the zone of danger of the drive shaft rollers. In Syntron, Inc.,
11 BNA OSHC 1868 (No. 81-1491-S, 1984), the Commission affirmed an order vacating a citation
where an employee stood approximately 1 foot from the unguarded blade of a bandsaw while setting
it up and then turned on the saw, made the cut, and then shut off the machine. The judge determined
that there was no reason for the operator’s hands to come close enough to the blade to be exposed
to a hazard.
In Trinity Industries, Inc., 14 BNA OSHC 1594 (No. 88-1027, 1990), the administrative law
judge found no violation of §1910.212(a)(1) for failure to guard the revolving chuck dogs on a metal
lathe. The judge found that the operator stood approximately 4 feet away from the lathe’s revolving
parts, and that any contact with them would have to be a deliberate act by the operator.
In Jefferson Smurfit, 15 BNA OSHC 1419, 1422 (No. 89-0553,1991), the Commission
reversed the administrative law judge, holding that a violation of §1910.212(a)(1) cannot be found
in the absence of evidence that the operator would have any reason to put his hands close enough to
the unguarded parts of the machinery to be exposed to a hazard.
These cases differ from the present case in that the machinery the employees were working
on did not require them to reach down to a point 17 inches above floor level. Those cases are
concerned with employees’ hands getting caught in rotating parts. They do not involve hazards
where employees’ heads are brought into the zone of danger of the rotating parts.
There was much speculation at the hearing as to how Loveland’s hair became entangled in
the rollers. S & G attacked her credibility by asserting that her testimony contradicted her prior
statement to Campbell regarding her location and the position of her feet at the time of her accident.
Loveland was quite forthright in stating that she could not recall the details of her accident (Tr. 79).
Knowing the exact manner in which Loveland’s accident occurred is not essential to the
determination of whether S & G violated §1910.212(a)(1). “[I]t is the hazard, not the specific
incident that resulted in injury . . . that is the relevant consideration in determining the existence of
a recognized hazard.” Kelly Springfield Tire Co., 10 BNA OSHC 1970, 1973 (No. 78-4555, 1982),
aff’d 729 F.2d 317 (5th cir. 1984).
What is relevant is how Loveland routinely operated the seam paste knob. A significant fact,
which neither the Secretary nor S & G pursued, is that Loveland is left-handed (Tr. 415). The seam
paste knob would be located to the right of an employee walking from the front of the machine to
the seam paste knob. Loveland explained that when she approached the seam paste knob from the
front of the bag machine, she squatted down and reached out with her left hand. Doing so brought
her upper body leaning closer to the machine than it would if a person reached with his or her right
hand.
It is foreseeable that a left-handed employee might operate the bag machine. Left-handed
people necessarilyoperatemachineryand equipment somewhat differently from right-handed people.
It is reasonably predictable that reaching with the left hand for a knob that is to the employee’s right
as he or she approaches it would bring the employee’s upper body farther into the zone of danger.
A case that is more apposite (and that neither party cited) is Evergreen Technologies, Inc.,
18 BNA OSHC 1528 (No. 98-0348, 1998), which was decided by the undersigned on facts similar
to those in the present case. Evergreen concerned a company which used Instron machines to test
the quality of the barricade fencing that it manufactures. The Instron machine consisted of two
vertical supports with a 3-foot long cross head running between them. The two vertical supports
housed internal drive screws. The drive screws were guarded with plastic accordion guards. One
of the guards had become detached from its location, exposing the left drive screw.
While Evergreen’s lab technician was operating the Instron machine, she dropped some
barricade samples behind the machine, a not uncommon occurrence during a lab technician’s shift.
Normally the lab technician would walk around the machine to pick up the dropped samples; but on
that day, the lab technician asked another employee to pick up the dropped sample. The employee
did not immediately see the sample. In order to point it out to the employee, the lab technician
placed her knee on her chair and reached her upper body between the left vertical support and the
upper clamp as the machine was operating. The lab technician’s hair was caught in the unguarded
drive screw. The lab technician’s scalp and one ear were torn from her head. One of her thumbs was
amputated as she tried to free her hair from the drive screw.
In Evergreen, the undersigned found that the company did not violate §1910.212(a)(1)
because the Secretary failed to establish employee access to the zone of danger (18 BNA
OSHC at 1529):
There is no “operational necessity” that would require employees to be in the
drive screw’s zone of danger.
***
It is reasonable to assume that employees would retrieve the dropped samples,
either by reaching through the machine or walking around it, only before or after a
test was run. Evergreen could not reasonably anticipate that an employee would drop
a sample, insert a sample into the clamps, turn away to start the machine at the
keyboard, and then turn back to the machine and reach through the moving parts to
retrieve the sample. Aside from the obvious hazard and inconvenience this would
cause, the technicians knew that any contact with the moving parts of the Instron
machine would invalidate the test results.

   The present case is distinguishable from Evergreen. Here, Loveland’s duties as a bag

machine tender required her to bring her head within the zone of danger of the rollers. No one
knows exactly how Loveland’s accident occurred, but King, who was called as witness by S & G,
testified that an employee could come in contact with the rollers if “they fell into something of that
sort or stumbled” (Tr. 222). Such inadvertence is foreseeable, especially when an employee is
required to shift his or her weight by reaching down to adjust a knob close to the unguarded rollers.
In Evergreen, the lab technician was injured while performing an act unrelated to her duties
as a lab technician. Here, Loveland was injured while performing one of her duties as a bag machine
tender. Operational necessity requires the bag machine tender to be within the zone of danger.
Inadvertence can cause contact with the rollers. The Secretary has established that the bag machine
tenders have access to the violative condition.
Employer knowledge
 The unguarded drive shaft rollers were in plain view of everyone in S & G’s facility. New
S & G employees were specifically instructed not to reach into the drive rollers, which were “open
and obvious” (Tr. 232). S & G was aware of the unguarded rollers.
Nevertheless, because the Secretary had never cited S & G for this during nine previous
OSHA inspections, S & G argues that it did not understand that the condition constituted a violation
(Exh. R-18; Tr. 189-190, 247-248). It is unknown, of course, whether OSHA previously observed
employees using the paste knob. It is well-established that the employer “cannot rely on OSHA’s
earlier failure to issue a citation to later argue a lack of knowledge of the hazardous condition.”
Columbian Art Works, Inc., 10 BNA OSHC 1132, 1133 (No. 78-29, 1981).
S & G also argues that it had no previous complaints from the employees, the Union, or the
safety committee regarding the rollers. Machine guarding of exposed rotating parts should not be
dependent upon employee complaints. It isthe employer’s responsibility to recognize safety hazards
and protect against them. The fact that employees were instructed not to reach into the rollers while
the machine is operating demonstrates that S & G recognizes that a hazard exists.
The Secretary has established that S & G committed a violation of §1910.212(a)(1). S & G
stipulated that, if a violation were found, the violation was serious (Tr. 92). The burden now shifts
to S & G to establish, if it can, an affirmative defense.
Unpreventable employee misconduct
S & G contends that any violation of §1910.212(a)(1) was the result of Loveland’s
unpreventable employee misconduct. To establish the affirmative defense of unpreventable
employee misconduct, the employer must prove that (1) it established work rules to prevent the
violation, (2) it adequately communicated the work rules to employees, (3) it took steps to discover
violations, and (4) it effectively enforced the work rules when it discovered infractions. Halmar
Corp., 18 BNA OSHC 1014, 1017 (No. 94-2043, 1997).
S & G had a safety policy in effect at the time of Loveland’s accident requiring employees
to keep their hair back. Exhibit R-3 is a memorandum dated June 23, 1997, and posted to
employees. It states in pertinent part:
Employees having hair shoulder length or longer must keep it tied at the back of their
head or put up under a hat. This must be done for your protection to keep it from
getting caught in any machinery.

   On March 12, 1998, approximately one month prior to Loveland’s accident, S & G posted

another memorandum, stating in pertinent part (Exh. R-4):
 Employees having hair shoulder length or longer must keep it tied back so it does not
swing around the shoulders to the front or put it up under a hat.

   Loveland testified that prior to the accident, she always wore her hair up in a bun on the top

of her head while working (Tr. 30). Bruce Tubman testified that he saw Loveland several times over
the course of her shift the night of her accident. He described her hair as “a thing in the back of her
head right up to her head and the hair was hanging down” (Tr. 143). The hair that “was hanging
down” Tubman subsequently identified as a ponytail (Tr. 143). The evidence was convincing that
having ones hair in a ponytail fully met the requirements of the workrule, at least as it was enforced
by S & G (Tr. 240-241).
S & G contends that Loveland violated its safety policy regarding hair, even though S & G
adduced no actual proof that this was so. S & G simply argues that the accident could not have
happened unless Loveland failed to tie her hair back.
S & G’s position is highly speculative. The employee misconduct defense is not proven
merely because the employer asserts that it is the most likely explanation as to how and accident
occurred. Some other evidence must exist that points to the employee’s safety infraction. None of
the witnesses who testified stated that Loveland’s hair was not pulled back the night of the accident.
Indeed, the only witness who testified to seeing Loveland multiple times that night said that her hair
was pulled back in a ponytail.
Furthermore, the affirmative defense of employee misconduct applies in situations in which
the behavior of the employee, and not the existence of a violative condition, is at issue. An employer
can rebut the Secretary’s case by showing that it had a work rule designed to implement the
requirements of the cited standard. See Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1780,
1784 (No. 91-2524, 1994).
In the present case, Loveland, as a bag machine tender, had no responsibility to guard the
drive shaft rollers. Compliance with S & G’s safety policy regarding hair would still leave the rollers
unguarded. Section 1910.212(a)(1) requires “one or more methods of machine guarding”; its
requirements are not met by implementing a work rule regarding hair. S & G’s employee
misconduct defense must fail.
Greater hazard
S & G argues that guarding the rollers will result in a greater hazard to its employees.
To establish a greater hazard affirmative defense the employer must prove that the
hazards caused by complying with the standard are greater than those encountered
 by not complying, that alternative means of protecting employees were used or were
not available, and that application for a variance under section 6(d) of the Act would
be inappropriate.

State Sheet Metal Co., 16 BNA OSHC 1155, 1159 (No. 90-1620, 1993).
S & G presented no evidence of either the application for a variance or the inappropriateness
of applying for a variance. Its defense must fail.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of theemployer’s business, (2) thegravity of the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
S & G employed 279 employees at the time of Campbell’s inspection (Tr. 171-172). OSHA
had not inspected S & G within three years of the April 1998 inspection that gave rise to this case.
Campbell testified that she gave S & G no credit for good faith because she found deficiencies in the
enforcement of S & G’s safety policy (Tr. 173-174), but the undersigned saw no such evidence of
a lack of good faith.
The gravity of the violation is moderately high. The probability of an accident is low, as
evidenced by the fact that in over 21 years there had not been an accident like Loveland’s (Tr. 246).
The gravity is increased, however, by the grievous nature of the injuries likely to occur should an
accident happen. It is determined that the appropriate penalty is $4,000.00.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
Item 1 of citation no. 1, alleging a serious violation of §1910.212(a)(1) is affirmed, and a
penalty of $4,000.00 is assessed.

                                                         /s/
                                                   NANCY J. SPIES
                                                   Judge

Date: July 1, 1999