BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MACHINERY TRADE CENTER
2528 South Santa Fe Avenue
Los Angeles, CA 90058

 

                              Employer

 

 

Docket No.

00-R4D2-3244

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by Machinery Trade Center (Employer), makes the following decision after reconsideration.

JURISDICTION

On April 18, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 2528 South Santa Fe Avenue, Los Angeles, California (the site).

On July 5, 2000, the Division issued a citation to Employer for an alleged serious violation of section 3314(a) [failure to de-energize or use extension tool] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal contesting the existence and classification of the alleged violation, the abatement requirements, and the reasonableness of the proposed penalty.

A hearing was held before Dale A. Raymond, Administrative Law Judge (ALJ) of the Board, in West Covina, California. Thomas C. Carlisle represented Employer. Deborah Ibañez, Associate Cal/OSHA Engineer, represented the Division.

On May 23, 2001, the ALJ issued a decision affirming the violation. Employer filed a petition for reconsideration on June 25, 2001, and the Division answered on July 23, 2001. The Board issued an order taking Employer’s petition under submission on August 10, 2001.

EVIDENCE

Division Associate Industrial Hygienist Nicholas Gleiter (Gleiter) testified that he performed an accident inspection on April 18, 2000, regarding an accident that occurred February 29, 2000, when a power roller was not de-energized or disengaged and an extension tool was not provided or used while an employee cleaned the rollers.

Gleiter also held an opening conference on April 18, 2000, with Controller Ronald Frank where he received Employer’s Report of Injury and Supplement, and interviewed Service Technician Mark Wiley (Wiley), the injured employee.

Gleiter learned from Wiley that he was injured while working on a Pexto Power Roller which was in operation at the time. The machine is about 5 feet long with two 5-inch rollers that are about ¼ inch apart. He was cleaning one of the rollers with a Scotchbrite cloth when his hand was drawn into the in-running rollers, crushing fingers on his right hand. In response to Gleiter’s questions, Wiley said that he did not have extension tools, did not have safety training on the machine, and now no longer cleans rollers while they are in operation. Based upon the above, Gleiter issued a citation for a violation of section 3314(a).

Gleiter classified the violation as serious because there was a substantial probability of serious injury in the event a worker’s hand got caught between the rollers.

On cross-examination, Gleiter testified that he never examined the machine that hurt Wiley and did not ask Employer how it defined the term “cleaning.” Gleiter determined that a serious injury occurred because one of Wiley’s fingers on his right hand was amputated, and three others were crushed as a result of the accident.

Wiley testified that he was a service technician at the time of the accident. His duties included repairing and installing machinery. On February 29, 2000, Wiley decided to resurface the rollers on a power roller machine. The rollers were in such bad condition that they were not usable. In order to evenly resurface the rollers, they had to be turning. Resurfacing requires two steps. In Step 1, Wiley sanded the surface with a block of wood. Sanding creates so many particles that Wiley could not see the surface of the rollers. Step 2 involves wiping away the particles using a Scotchbrite cloth and a solvent. The Scotchbrite cloth, which is rough but absorbent, removes particles and further resurfaces the rollers at the same time. The solvent is used to get into the rust, dings, and nicks in the rollers, so sanding is more efficient. The accident occurred when Wiley was wiping the solvent and got distracted by a coworker. The cloth became caught and drew his right hand between the rollers, crushing three fingers. His middle finger was amputated. No extension tool was provided for performing Step 2. According to Wiley the resurfacing procedure has not changed since the accident, although the machine is now de-energized.

The surfaces of the rollers must be clean, uniform, and smooth in order to be used. The machine was fully functional, but Wiley was reconditioning the rollers so the machine would be usable.

Wiley testified that he does not consider Step 2 to be cleaning. Rather, in his opinion, the removal of grime, metal, debris, dust, and rust in Step 2 is an extension of Step 1.

Employer called Service Manager Dennis Griffin. Griffin testified that he assigned Wiley to work on the rollers. He further testified that Employer does not do any cleaning other than steam cleaning of the equipment and rebuilding it at the site. The process involves grinding the rollers, removing debris, putting more solvent in, and then repeating the process. According to Employer’s injury and illness prevention program, all power must be cut to machines when they are being cleaned.

Griffin testified that Employer had about 20 employees at the time of the accident. Not much could be done to prevent the type of accident Wiley experienced. He could be more careful or open up the rollers farther so the pinch points were farther apart.

ISSUE

Did the evidence received at the hearing justify the decision of the ALJ?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer filed a petition contending that the evidence received by the Appeals Board does not justify the findings of fact and that the findings of fact do not support the order or decision. In support of its argument, Employer contends in relevant part that:

1. The evidence received by the Appeals Board does not justify the findings of fact. The statement that Gleiter learned from Wiley that he was cleaning a roller is not consistent with the testimony. Wiley testified that he was resurfacing the roller.

2. The Division did not understand the process or ask the appropriate question. Mr. Wiley’s testimony is quite clear that he was not cleaning the rolls. Had Mr. Wiley wanted to clean the rolls he would have moved the equipment to the cleaning station to use the steam cleaner on the rolls.

3. The term “cleaning up a machine” refers to bringing a machine up to the standards for resale. The term is not intended to mean cleaning the machine or equipment.

4. The statement that the rolls were unguarded is misleading. The rolls cannot be guarded on this machine.

5. Simpson Timber Company, Cal/OSHA App. 77-1038, Decision After Reconsideration (June 9, 1980), does not apply to this decision, because, this decision is based on machinery and equipment being worked on and used in a production setting producing goods and services for the company that owns and uses the equipment.

6. The ALJ’s definition of cleaning is outdated.

7. The liberal interpretation of the safety orders is not supported by J. R. Wood, Inc., Cal/OSHA App. 95-4431, Decision After Reconsideration (Oct. 14, 1999), which shows that the safety orders are to be interpreted very strictly. Employer further opines that if the Board does not restrict the liberal interpretation of the safety orders, the burden on the Employer is unsustainable. The Employer will not have any basis for developing or implementing safety procedures, which under liberal interpretation can change at any time depending on the whim of the Division. The Employer will be subject to the whim of current opinion.

8. Inadvertent movement is any unintended movement. There is no unintended movement. All movement is intended and required.

9. The setting of the violation as serious is incorrect as there is ample evidence that the Employer did not and could not have had knowledge of the interpretation of this section.

Employer’s contentions were, for the most part, made to and addressed by the ALJ at the hearing on this matter. We see no flaws in the ALJ’s decision.

At the hearing, Employer argued that section 3314(a), which reads as follows, does not apply.

Machinery or equipment capable of movement shall be stopped and the power source de-energized or disengaged, and, if necessary, the moveable parts shall be mechanically blocked or locked out to prevent inadvertent movement during cleaning, servicing or adjusting operations unless the machinery or equipment must be capable of movement during this period in order to perform the specific task. If so, the employer shall minimize the hazard of movement by providing and requiring the use of extension tools (e.g., extended swabs, brushes, scrapers) or other methods or means to protect employees from injury due to such movement. Employees shall be made familiar with the safe use and maintenance of such tools by thorough training. For the purpose of Section 3314, cleaning, repairing, servicing and adjusting activities shall include unjamming prime movers, machinery and equipment.

It was undisputed that Wiley was wiping the rollers of a roller machine when the rollers were moving without the use of extension tools. Wiley’s testimony at hearing that the machine had to be moving in order to resurface the rollers was credited by the ALJ over Gleiter’s testimony that Wiley said the procedure had been changed so that the rollers are stopped during step 2. We see no reason to overrule the ALJ’s credibility determination (Garza v. Workmen’s Compensation Appeals Board, (1970) 3 C.3d 312). Gleiter never saw the machine and his testimony about what Wiley said was uncorroborated hearsay. Wiley’s testimony was corroborated by Griffin’s testimony that the procedure had not changed after the accident.

Employer argued that Wiley’s activity did not constitute “cleaning, repairing, servicing, or adjusting” within the meaning of section 3314. Employer contends that had Wiley wanted to clean the rollers he would have moved the equipment to the cleaning station to use the steam cleaner on the rollers. The safety orders do not define the word “cleaning.” However, the Appeals Board has liberally interpreted section 3314(a), overruling more restrictive precedent, consistent with the California Supreme Court’s directive to liberally interpret safety orders to promote a safe and healthful working environment. (See Carmona v. Division of Industrial Safety, (1975) 13 C.3d 303, 313.) The Board explicitly overruled a case holding that brushing sawdust off an electric eye did not constitute “cleaning, servicing, or adjusting.” (Sacramento Bag Mfg. Co., Cal/OSHA App. 91-320, Decision After Reconsideration (Dec. 11, 1992).) The Board has found the term “cleaning” to include the removal of an obstruction, citing the definition found in Webster’s New International Dictionary (2d ed. 1957). (Producers Cotton Oil, Cal/OSHA App. 81-1463, Decision After Reconsideration (Feb. 8, 1985).) The Board recently held that section 3314(a) is violated where an employer has not complied with section 3314(b) but was cited under section 3314(a). (Wetsel-Oviatt Lumber Company, Cal/OSHA App. 94-1462, Decision After Reconsideration (Apr. 12, 2000).)

Employer argues that Simpson Timber Company, Cal/OSHA App. 77-1038, Decision After Reconsideration (June 9, 1980) does not apply to this decision. Employer’s focus on “inadvertent movement” discussed in Simpson Timber Company, supra, with respect to the facts here is misplaced. The safety order refers to inadvertent movement that could occur when a machine is stopped and de-energized, which is not the situation here. When a machine must be capable of movement, the safety order is designed to protect an employee from all movement.

Under section 3314(a), mechanical blocking is required to prevent inadvertent movement of machinery and equipment during a cleaning operation. In Simpson Timber Company, we upheld a violation of section 3314(a) for an employer’s failure to render the chip feeder immobile while an employee’s hand is in the drum by mechanically locking in addition to de-energizing the control panel. In Simpson Timber Company, supra, the Board stated:

Employer claims the word “inadvertent” limits the section’s concern to movement caused by people. This restrictive of a reading is unwarranted; inadvertent movement is any movement, which is not intended. The additional blocking requirement is applicable in a situation where, as here, the mode of de-energizing does not completely eliminate the possibility of movement during cleaning operations. (Italics added)

The definition of “cleaning” in Webster’s Third New International Dictionary (Unabridged 1986) at page 419 includes “free of dirt or any foreign or offensive matter: …as to wipe or polish especially with a solvent.” By wiping with a solvent, Wiley was freeing the rollers of foreign matter that obstructed his view of the rollers. It is found that his activity fell within the definition of “cleaning” for purposes of section 3314(a) when he was injured. The Division established a violation of section 3314(a).

Alternatively, we also find that the activity performed by Wiley was a “servicing” of equipment within the meaning of section 3314(a)2. We have rejected an interpretation of “servicing” within the meaning of section 3314(a) as being limited to routine or minor service work. “Servicing” may have many purposes other than preventing damage to machinery or equipment being serviced. In United States Pipe and Foundry Company, Inc., Cal/OSHA App. 98-1130 (June 29, 2001) we recently stated:

Service work may be undertaken to prevent an interruption of production by replacing a part before it fails and production has to be interrupted. Service work may be undertaken to enhance or maintain satisfactory functioning of a machine or piece of equipment, either in terms of quantity or quality of product or to avoid some undesirable side effect.

Here, the activity Wiley performed was resurfacing a roller on a power roller machine that involved use of a sanding block followed by wiping with a Scotchbrite cloth and solvent to further remove rust and particles in dings and nicks. The rollers must be clean, uniform and smooth in order to be useable. Under these facts, the operation performed by Wiley was a “servicing” operation within the meaning of section 3314(a).

Under Labor Code section 6432(a), a serious violation exists if there is a substantial probability that death or serious physical harm could result from a violation. This includes, but is not limited to, circumstances where one or more practices, means, methods, operations, or processes, which have been adopted or are in use in the place of employment could result in death or great bodily harm. Gleiter’s testimony that there was a substantial probability of serious physical harm, as happened here, in the event of an accident caused by the violation was unrefuted and is credited. The violation was properly characterized as accident-related and serious.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 3314(a) and the assessment of a $12,600 civil penalty.



MARCY V. SAUNDERS, Member GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 3, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 We recognize that the citation alleged the injury to have occurred “while cleaning the rollers”. We do not find that the allegations in the citation preclude a determination that the activity also constituted a “servicing” operation. Employer was sufficiently informed of the particular incident that gave rise to the issuance of the citation following an injury accident to an employee who worked on the Perko Power Roller machine on February 29, 2000. If an employer received actual notice and had an opportunity to defend against the charged violation that was in fact litigated, failure to properly plead the violation will not defeat the violation. (R. Burke Corporation, Cal/OSHA App. 83-1207 Decision After Reconsideration (Oct. 25, 1985).