Sanderson Farms, Inc. v. Perez

• Decision Date: 22 January 2016
• Docket Number: No. 15–60215.,15–60215.
• Citation: 811 F.3d 730
• Parties: SANDERSON FARMS, INCORPORATED, Petitioner, v. Thomas E. PEREZ, Secretary, Department of Labor, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

811 F.3d 730

SANDERSON FARMS, INCORPORATED, Petitioner,

v.Thomas E. PEREZ, Secretary, Department of Labor, Respondent.

No. 15–60215.

United States Court of Appeals, Fifth Circuit.

Jan. 22, 2016.

Darren S. Harrington (argued), Key Harrington Barnes, P.C., Dallas, TX, for Petitioner.

John X. Cerveny, Charles Franklin James, Heather Renee Phillips, M. Patricia Smith, Washington, DC, Louise McGauley Betts, Esq. (argued), U.S. Department of Labor Office of the Solicitor, Occupational Safety & Health Division, Washington, DC, for Respondent.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before SMITH, WIENER, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Sanderson Farms, Inc. petitions for review of an order of the Occupational Safety and Health Review Commission (OSHRC) citing Sanderson Farms for an unguarded arbor and projecting key in violation of the mechanical power-transmission apparatus regulation, 29 C.F.R. § 1910.219. The petition for review is DENIED as to the citation for the unguarded arbor and GRANTED as to the key.

FACTS AND PROCEDURAL BACKGROUND

Sanderson Farms, Inc., a nation-wide poultry producer, operates a chicken processing plant in Laurel, Mississippi. On January 15, 2014, an Occupational Safety and Health Administration compliance officer conducted a planned inspection of the facility. Two machines found at the plant are at issue in this case—the chicken cutting table and the deboning station. Sanderson Farms was cited for operating the chicken cutting table with an unguarded, rotating arbor, and for having an unsmooth projecting shaft end below the surface of the deboning station, but above the platform where the workers stood, because it had a key protruding on its surface.

The chicken cutting table includes a stationary saw that is used to cut whole chickens in half. Whole chickens are deposited on the table through a metal chute. The operator then takes a whole chicken, puts one hand on each end of the chicken, guides the chicken through the stationary saw to cut the chicken in half, and drops the cut halves in a bucket underneath the table. The sawblade is held in place by an arbor which is connected to the shaft of the saw motor. The arbor is connected to the motor shaft by two screws that sit slightly above the shaft. The motor rotates the motor shaft, arbor, and sawblade. The arbor and motor shaft sit less than seven feet from the floor, connected with a one-quarter inch gap between them, and rotate together at 1,750 rotations-per-minute. The arbor has several impressions, creating a slight rise in the metal, made by the teeth of a wrench used to connect the arbor to the shaft. When a worker moves a chicken through the saw, his or her hands come within six to eight inches of the rotating arbor.

The compliance officer found that the arbor was unguarded in violation of 29 C.F.R. § 1910.219(c)(2)(i), which prohibits unguarded horizontal shafting seven feet or less off the ground. The compliance officer concluded that if an operator came into contact with the rotating arbor, the rotation could force the hand away from the worker's body and cause injury. As a result, the compliance officer cited the unguarded arbor as a serious violation of the mechanical power-transmission apparatus regulation.

At the deboning station, workers stand on an eight-inch platform. One of the deboning stations included a protruding, rotating shaft end located two-and-one-half feet above the platform. A key extended roughly one-sixteenth to one-eighth of an inch from the surface of the shaft end, which rotated slowly at 40 rotations-per-minute. The key was unguarded and connected to the shaft end as if it were permanently joined.

The compliance officer found that the surface of the unguarded rotating shaft end was not smooth as required by 29 C.F.R. § 1910.219(c)(4)(i). Because workers leaned towards and then away from the rotating shaft end, the compliance officer determined that an article of loose clothing could become tangled on the key and result in a broken bone or that snagged clothing could pull a worker backwards, causing the worker to fall from the platform and possibly suffer a concussion or broken bone. As a result, the compliance officer cited Sanderson Farms for a serious violation of the mechanical power-transmission apparatus regulations because of the presence of an unsmooth, unguarded, rotating shaft end.

Following a hearing, an Administrative Law Judge (ALJ) found that the Secretary of Labor carried the burden to prove both citations by a preponderance of the evidence. Specifically, the ALJ found that it was undisputed that the rotating arbor at the cutting station was seven feet or less above the ground. Further, she found that there was sufficient evidence to sustain a violation for the unguarded arbor because the arbor is a "vital and integral part of the power transmission apparatus and must be considered part of it" because it rotates at the same speed and presents the same hazard as the transmission shaft. The ALJ also found that there was sufficient evidence to establish that the key extending from the protruding shaft end was a violation because the standard required that the shaft end be smooth, the plain meaning of smooth is a "continuous even surface," and the fact that the key extended from the shaft end meant the shaft end could not have a continuous even surface. Based on these findings, the ALJ fined Sanderson Farms $1,500.00.

Sanderson Farms sought discretionary review with the OSHRC. The case was not directed for review and the ALJ decision became a final order of the OSHRC on January 30, 2015. Sanderson now petitions for review.

DISCUSSION

Findings of fact of the OSHRC must be accepted if supported by "substantial evidence on the record considered as a whole...." 29 U.S.C. § 660(a). See also Chao v. OSHRC, 480 F.3d 320, 323 (5th Cir.2007). This requires the court to uphold factual findings "if a reasonable person could have found what the [Commission] found, even if the appellate court might have reached a different conclusion...." Valmont Indus. v. NLRB, 244 F.3d 454, 463 (5th Cir.2001) (quoting Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir.1988). See also Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423, 426–27 (5th Cir.2001) ). Legal conclusions are reviewed for whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Austin Indus. Specialty Servs., L.P. v. OSHCR, 765 F.3d 434, 438–39 (5th Cir.2014) ; Trinity Marine, 275 F.3d at 427.

OSHA has the burden of proving sufficient facts to support the citation. Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir.1979). The Secretary of Labor must show by a preponderance of the evidence: (1) that the cited standard applies; (2) noncompliance with the cited standard; (3) access or exposure to the violative conditions; and (4) that the employer had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence. Secretary of Labor v. Jesse Remodeling, LLC, 22 BNA OSHC 1340 (2006) ; Secretary of Labor v. Atlantic Battery Co., 16 BNA OSHC 2131 (1994). Where a standard presumes a hazard, however, the Secretary need only show the employer violated the terms of the standard. Secretary of Labor v. Kaspar Electroplating Corp., 16 BNA OSHC 1517 (1993).

Sanderson Farms brings three challenges to the order of the OSHRC. First, Sanderson Farms contends that employers must, at the prima facie stage of enforcement proceedings, be given an opportunity to rebut the presumption of hazard incorporated in safety regulations. Second, Sanderson Farms contends that there is not substantial evidence to support the citation for the unguarded arbor. Finally, Sanderson Farms contends that there is not substantial evidence to support the citation for the projecting key. We begin with the presumptions argument.

I.

Sanderson Farms maintains that a footnote in Bunge Corp. v. Secretary of Labor, requires that employers have an opportunity to rebut the presumption of hazard when determining whether a prima facie case for a violation has occurred. See 638 F.2d 831, 835 n. 6 (5th Cir. Unit A 1981) ("Since hazard is presumed, an employer would rebut the Secretary's case by showing no hazard arises from the particular condition."). The Secretary counters that the footnote is more accurately characterized as a summary of the de minimis affirmative defense, which serves as an opportunity for the employer to show that a violation of a safety standard presents no hazard. We agree with the Secretary.

An occupational safety and health standard may only be promulgated if "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8). Since OSHA is required to determine that there is a hazard before issuing a standard, the Secretary is not ordinarily required to prove the existence of a hazard each time a standard is enforced. Bunge Corp., 638 F.2d at 835 ; National Engineering & Contracting Co. v. OSHA, 928 F.2d 762, 768 (6th Cir.1991) ; Greyhound Lines–West v. Marshall, 575 F.2d 759, 762 (9th Cir.1978). Therefore, hazard is generally presumed in safety standards unless the regulation requires the Secretary to prove it.

There has been no OSHRC, ALJ, or federal court decision adopting Sanderson Farms's reading of the Bunge Corp. footnote. In contrast, it is widely accepted that lack of hazard is an affirmative defense to a prima facie case establishing violation of a safety standard. See Mark Rothstein, OCCUPATIONAL SAFETY AND HEALTH LAW § 5:24 (2015). This affirmative defense characterizes violations as de minimis when an employer shows that the violation has "no direct or immediate relationship to safety or health." 29 U.S.C. § 658(a). The de minimis label carries no adverse consequences and would achieve the result that Sanderson Farms seeks. Therefore,...