     Case: 10-60348 Document: 00511351971 Page: 1 Date Filed: 01/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                              FILED
                                                                          January 14, 2011
                                     No. 10-60348
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TURNER INDUSTRIES GROUP, L.L.P.,

                                                   Petitioner
v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
HILDA L. SOLIS, SECRETARY, DEPARTMENT OF LABOR,

                                                   Respondents




                     Petition for Review of an Order of the
               Occupational Safety and Health Review Commission
                              OSHRC No. 08-0448


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Turner Industries Group, L.L.P., appeals a final order of the Occupational
Safety and Health Review Commission (“the Commission”), which adopted the
administrative law judge’s (“ALJ”) findings and conclusions, and affirmed the
ALJ’s citation of Turner for a serious violation of Occupational Safety and
Health Standards, specifically, 29 C.F.R. § 1910.212(a)(3)(ii), for failing to guard

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-60348 Document: 00511351971 Page: 2 Date Filed: 01/14/2011



                                   No. 10-60348

the point of operation of a pipe-cutting machine and fined the company $1,000
for the violation.    We DENY the petition for review and AFFIRM the
Commission’s order.
      The Commission cited Turner for violating 29 C.F.R. § 1910.212(a)(3)(ii),
which provides:
             The point of operation of machines whose operation exposes
      an employee to injury, shall be guarded. The guarding device shall
      be in conformity with any appropriate standards therefor, or, in the
      absence of applicable specific standards, shall be so designed and
      constructed as to prevent the operator from having any part of his
      body in the danger zone during the operating cycle.
The citation followed an employee injury at Turner’s factory involving a pipe-
cutting machine that Turner had installed approximately two weeks before the
accident. The machine is operated by mounting large sections of pipe over
protruding shafts. At the two accessible points of operation on the machine are
circular spinning bevels, which cut the pipe at an angle. Operators of the
machine access the points of operation in order to take measurements and make
adjustments. The point of operation closest to the machine’s control panel has
a guard, which must be removed in order to access the machine. The second
point of operation is on the opposite side of the machine from the control panel
and is not equipped with a guard. This point of operation can be accessed while
the bevels are spinning because the bevels can remain energized even without
an operator present at the control panel. Furthermore, there is no automatic
sensor to disable the bevels if this second point of operation is accessed while the
machine is operating. That is, even if only one person is operating the machine,
it is possible for that operator to engage the bevels from the control panel and
walk around the machine and access the second, unguarded point of operation
while the bevels are still engaged.




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                                   No. 10-60348

      At the time the employee was injured, and in the two weeks leading up to
the incident, Turner’s employees were being trained on the new pipe-cutting
machine by a representative of the machine’s manufacturer, at Turner’s request.
Throughout the training, two of Turner’s employees accessed the machine’s two
points of operation while the trainer manipulated the machine’s control panel.
At the time of the incident, the employee who was injured was working at the
unguarded point of operation on the opposite side of the machine from the
control panel.   The employee was taking measurements when the trainer
unexpectedly started the machine. The machine’s spinning bevels caused severe
injuries to the employee’s hand.
      The following day, the Occupational Health and Safety Administration
assigned a Compliance Safety and Health Officer to investigate the incident.
The officer reviewed Turner’s written operational procedures for the pipe-cutting
machine, spoke with Turner employees, and visited Turner’s factory.            He
recommended a citation of Turner for a serious violation of 29 C.F.R.
§ 1910.212(a)(3)(ii). At the hearing Turner requested to contest the citation, the
ALJ heard live testimony from the Turner supervisor who had directed the
Turner employees to be trained on the pipe-cutting machine, and from the
Compliance Safety and Health Officer who investigated the incident. The ALJ
also received into evidence documentary exhibits, including Turner’s written Job
Safety Analysis (“JSA”) for the machine—both the original JSA and the revised
JSA, which was modified following the employee’s injury. The ALJ found that
Turner had violated 29 C.F.R. § 1910.212(a)(3)(ii) by failing to provide a
guarding device for both operational access points on the pipe-cutting machine.
The ALJ however, reduced the Compliance Safety and Health Officer’s proposed
penalty from $2,625 to $1,000. The Commission adopted the ALJ’s findings of
fact and conclusions of law on appeal, and affirmed the citation and penalty.



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                                  No. 10-60348

      “On appeal, this Court only reviews the Commission’s findings of fact to
ensure they are supported by substantial evidence in the record considered as
a whole.” Chao v. Occupational Safety & Health Review Comm’n, 401 F.3d 355,
362 (5th Cir. 2005) (internal quotation marks omitted); Fred Wilson Drilling Co.,
Inc. v. Marshall, 624 F.2d 38, 40 (5th Cir. 1980); see also 29 U.S.C. § 660(a).
“Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Chao, 401 F.3d at 362 (quoting
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 619-20 (1966) (citation omitted)); see
also Pierce v. Underwood, 487 U.S. 552, 564-65 (1988) (“[Substantial evidence]
does not mean a large or considerable amount of evidence, but rather ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)));
Fields Excavating, Inc. v. Sec’y of Labor, 383 F.3d 419, 420 (6th Cir. 2004) (“The
substantial evidence test protects both the factual findings and the inferences
derived from them, and if the findings and inferences are reasonable on the
record, they must be affirmed even if this court could justifiably reach a different
result de novo.” (internal quotations omitted)).
      The    Commission’s      finding    that   Turner     violated   29    C.F.R.
§ 1910.212(a)(3)(ii) by failing to provide a guarding device on the pipe-cutting
machine is supported by substantial evidence. The Turner supervisor testified
that Turner recognized the possible hazard presented by the operation points to
the pipe-cutting machine, particularly the unguarded operation point, which was
specifically reflected in Turner’s original JSA and revised JSA. He also testified
that protective guards that would prevent the machine from operating while the
points of operation were being accessed would prevent injuries, such as the one
that occurred, and that such guards could feasibly be added to the machine. The
supervisor further testified that he personally observed Turner employees
accessing the machine from the unguarded operation point, and that throughout

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                                  No. 10-60348

the training, three people were operating the machine at the same time—a
Turner employee at each of the operation access points and the trainer at the
control panel. The supervisor contended, however, that having more than one
person operate the machine was unique to the training and that during normal
working conditions, the machine would be operated by only one person. This,
according to the supervisor, would substantially lessen or negate the possibility
that the machine’s operator would access the operation point opposite the control
panel while the machine was running. However, the ALJ found that Turner’s
JSAs, both the original and revised, indicated that under normal working
conditions, Turner expected two people to be operating the machine together.
Therefore, the ALJ found that Turner’s own written operational policy for the
machine anticipated conditions similar to those in the instant case, which
resulted in the employee’s injury and may involve access to an unguarded
operation point of the machine.
      Turner’s argument that the Commission has failed to establish that a
hazard existed within the scope of 29 C.F.R. § 1910.212(a)(3)(ii) is misplaced.
Turner argues that it was unforeseeable that when the machine is operated by
one person—as, according to Turner, it would be during normal operation—the
operator would access the machine at the unguarded operational point on the
opposite side from the control panel while the machine was running. Turner
argues that decisions by the Commission, which it cites, establish a rule that “in
order for the Commission to find employee exposure to a hazard, it must
determine that it is reasonably predictable, either by operational necessity or
otherwise, and that employees have been, are, or will be in the zone of danger.”
      Even assuming arguendo that Turner is correct about the reasonably-
predictable-hazard rule, this argument fails. The ALJ specifically considered
and rejected this argument:



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                                  No. 10-60348

             [Turner] argues that once training was completed, only one
      employee would operate the machine at a time and there was no
      reasonable expectation that the single operator would walk around
      to the unguarded portion of the machine while it was in operation.
      However, [Turner] ignores the focus of the citation in this case. The
      Secretary alleges that for two weeks up to and including the
      accident, [Turner]’s employees were being trained as a group, with
      at least two employees simultaneously working on the machine,
      resulting in daily employee exposure to the unguarded point of
      operation. Second, in contradiction of [Turner]’s argument, its
      written procedures required two employees at a time to operate the
      pipe-cutting machine. Even if operating the machine alone,
      employees were required to periodically access the unguarded side
      to take measurements and make adjustments. [Turner] has cited
      no legal authority to support its argument that a different standard
      of care exists during training sessions as opposed to regular
      business operations. I do not accept such argument in light of the
      purpose of the Act. I find that even if the accident had not occurred,
      it was still reasonably predictable that [Turner]’ s employees could
      come within the zone of danger of the unguarded side of the
      machine.
Turner Indus. Group, LLP, 23 BNA OSHC 1049 (No. 08-0448, 2009) (ALJ), aff’d
23 BNA OSHC 1047 (2010). This finding is supported by substantial evidence
in the record, which makes abundantly clear that Turner employees were in fact
instructed to access the unguarded operational point of the machine, and that
it is foreseeable that Turner employees will be in the zone of danger even under
normal working conditions. Turner’s own revised JSA requires two people to be
operating the machine together, which may predictably lead to one of the
employees accessing the unguarded operational point while the other employee
energizes the machine from the control panel. This in fact, is the exact situation
that led to the employee’s injury in the instant case. Additionally, even if Turner
is correct that during normal working conditions, only one employee will operate
the machine, that employee may still access the unguarded operation point while
the machine is engaged because the machine is designed so that the bevels can



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                                 No. 10-60348

be engaged from the control panel and continue to operate even if the operator
goes around to the other side of the machine and accesses the unguarded
operation point.
      Therefore, Turner has failed to demonstrate that the Commission’s
decision was not supported by substantial evidence. Accordingly, its petition for
review is DENIED and the order of the Commission is AFFIRMED.




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