BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD


In the Matter of the Appeal of:

CHICKEN OF THE SEA INTERNATIONAL
338 Cannery Street
San Pedro, CA 90731

                              Employer

 

Docket Nos.

01-R3D5-281
and 282

 

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 taken the petition for reconsideration filed in the above-entitled matter by Chicken of the Sea International [Employer] under submission, makes the following decision after reconsideration.

JURISDICTION

Commencing on November 29, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 338 Cannery Street, San Pedro, California (the site). On December 20, 2000, the Division issued to Employer a citation alleging a serious violation of section1 3314(b) [lockout], with a proposed civil penalty of $18,000, and a citation alleging a general violation of section 3314(f) [lockout procedures], with a proposed civil penalty of $560.

Employer filed a timely appeal contesting the existence of the alleged violations. A pre-hearing order expanded the scope of Employer’s appeal from the citations to include the classifications, the abatement requirements, the reasonableness of the proposed penalties, and five affirmative defenses.

On January 10, 2002, a hearing was held before Dale A. Raymond, Administrative Law Judge (ALJ), in Torrance, California. Timothy M. Younger, Attorney, represented Employer. Albert Cardenas, Staff Counsel, represented the Division.
On January 31, 2002, the ALJ issued a decision denying Employer's appeal.

On March 7, 2002, Employer filed a petition for reconsideration. The Division filed an answer on April 9, 2002. The Board took Employer’s petition under submission on April 23, 2002.

Docket No. 01-R3D5-282
Citation 2, Serious, Section 3314(b)

EVIDENCE

Employer cans seafood and as part of its operation it utilizes a Busse Unloader machine. On October 23, 2000, the machine’s conveyor belt broke. Francisco Jiminez (Francisco), Employer’s mechanic, suffered amputation of three fingers in the drive train of the machine while engaged in repairing the machine. The Division cited Employer under section 3314(b) for failure to lock out the machine during repair operations.

At hearing, Employer’s counsel submitted its hearing brief as part of the record. Division’s counsel stated that he had read the brief and was willing to stipulate to the facts therein,2 although he believed they might be incomplete. The parties stipulated to the following facts:

On October 23, 2000, Genaro Cortez (Cortez) had been a Busse Unloader operator for about 18 years. On that date, he was operating Busse Unloader (Sweeper Line #8) when the conveyor belt broke. The machine is comprised of three sections—an unloader, a conveyor, and a magnetic elevator. Each section can be stopped separately by an emergency button. When the conveyor belt broke, Cortez pushed the emergency stop button, stopping the entire machine. He requested a mechanic over the intercom. Cortez failed to apply his safety padlock to the machine and admits his error.

“Mechanic A” Isidro Alvarez (Alvarez) and “Mechanic C” Francisco Jiminez (Francisco) heard the request over the intercom and responded. A “Mechanic A” is Employer’s highest level mechanic whereas “Mechanic C” is the lowest level mechanic. Basically, a C assists an A when repairing the Busse Unloaders. At the time, Alvarez had been an A for over a year and Francisco had been a C for over two years. Alvarez had the skills and knowledge to repair any of Employer’s Busse Unloaders. When Alvarez and Francisco arrived at the unloader after retrieving repair equipment, Cortez and Fidencio Jiminez (Fidencio) were present. Francisco and Fidencio are brothers. Fidencio had worked for Employer since 1977. Alvarez and Francisco started to fix the machine without affixing a safety padlock.

About 10 minutes later, Cortez and Fidencio decided to operate the elevator portion of the machine, which can be operated separately from the belt that the two mechanics were working on. Without thinking, Cortez turned on the main switch but immediately turned it off again when he realized the drive chain of the machine that the mechanics were working on also started. Francisco had his fingers in a chain when this happened, which in turn amputated three of his fingers at the joint.

At the time of the accident and before, Employer had safety policies and procedures, which it actively enforced with sanctions against employees who did not follow these safety procedures. One of these procedures was the “Lock Out/Tag Out” safety procedure where an employee is required to use a padlock, supplied to him or her with a unique key, to effectively lock out the power to a machine that is being worked on. No other employee would have the key to unlock the padlock, and thus the machine could not be turned on when being worked on. All the mechanics and operators of these machines are trained in these safety procedures. All of the employees involved in the accident each went to training sessions and took written tests on these procedures. They were all issued padlocks and Francisco had his padlock in his toolbox in his possession at the time of the accident.

Alvarez, Francisco, Fidencio and Cortez admit that the cause of the accident was human error and that each of them was negligent when he failed to use the safety procedures Employer required. They each knew about the safety procedures and had the necessary tools and equipment to comply with them. All of the employees involved were sanctioned for this incident, except for Francisco who was still absent due to the injury.

Employer has subsequently shut down the machine due to downsizing.

Employer’s counsel reserved the right to supplement the stipulation with additional facts. The ALJ accepted the stipulation to the facts contained in Employer’s hearing brief and also allowed both sides to add to those facts.

Barry Blodgett (Blodgett), Associate Cal/OSHA Engineer, testified that he issued Citation 2 for a violation of section 3314(b) because the Busse Unloader was not locked out during the repair operation despite the fact that the four employees present at the incident had lock out training and lock out locks with individualized keys. He classified the violation as serious because amputation is the most likely injury to occur in the event of an accident caused by the violation. He testified that Employer knew of the violative condition because in his opinion Fidencio was a supervisor.3

Employer’s lockout procedure which it submitted into evidence listed Label and Casing Supervisor, along with Electrician and Mechanic, as all the affected employees to be notified that servicing is required on the Busse Unloader.

ISSUE

Did the Division establish a serious violation of section 3314(b)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division cited Employer under section 3314(b), which provides as follows:

(b) Prime movers, equipment, or power driven machines equipped with lockable controls or readily adaptable to lockable controls shall be locked out or positively sealed in the “off” position during repair work and setting-up operations. Machines, equipment, or prime movers not equipped with lockable controls or readily adaptable to lockable controls shall be considered in compliance with Section 3314 when positive means are taken, such as de-energizing or disconnecting the equipment from its source of power, or other action which will prevent the equipment, prime mover or machine from inadvertent movement. In all cases, accident prevention signs and/or tags shall be placed on the controls of the equipment, machines and prime movers during repair work.

EXCEPTION: Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations are not covered by the requirements of Section 3314 if they are routine, repetitive, and integral to the use of the equipment or machinery for production, provided that the work is performed using alternative measures which provide effective protection.

NOTE: For the purpose of Section 3314, “locked out” means the use of devices, positive methods and procedures, which will result in the effective isolation or securing of prime movers, machinery and equipment from mechanical, hydraulic, pneumatic, chemical, electrical, thermal or other energy sources.

It is undisputed that Employer’s Busse Unloader machine was not locked out during repair operations at the time of Francisco’s injury; nor is it disputed that it should have been locked out at such time. Employer’s primary contention is that the independent employee act defense [IEAD] should apply and that the violation alleged in Citation 2 should therefore be dismissed. The rationale for the IEAD, a Board created affirmative defense, is that if an employee who is acting independently, i.e., without the employer’s direction and control, knowingly engages in conduct that is contrary to the “best safety efforts” of the employer, the employer should not be held responsible for the violation.4 Because it is an affirmative defense, the burden of proving it, by a preponderance of the evidence,5 rests upon the employer.6 The employer must prove each of the five elements7 of the IEAD in order to avoid liability.

We agree with the ALJ that Employer met the first, second and fifth elements of the IEAD. Employees Cortez, Francisco, Alvarez, and Fidencio were experienced in the job being performed. They attended safety meetings and had been provided personal safety padlocks. Each admitted violating Employer’s safety program by failing to use their locks.

The ALJ denied the IEAD because Employer failed to meet the burden of proof on the third and fourth elements. The ALJ found that Employer presented no documentation of a safety calendar, safety inspections or written sanctions for safety infractions other than those applied in this case. Although the ALJ did not address the stipulation quoted above, we concur with her conclusion that Employer did not provide sufficient evidence to establish the third element because none of the four experienced and knowledgeable employees followed Employer’s safety rule, as would be expected if Employer effectively enforced its program, and because other evidence in the record raises questions which, if unrebutted or unaddressed by Employer’s evidence, suggest that its lockout program (a significant component of its overall safety program) was not effectively enforced.

Employer argues that the stipulation entered into between the parties and accepted by the ALJ conclusively establishes those two elements of the affirmative defense which the ALJ found wanting. Employer points to the language in the stipulation which provided that “[a]t the time of the accident and before, Employer had safety policies and procedures, which it actively enforced with sanctions against employees who did not follow these safety procedures.” The essential question then is whether the stipulation in this case disposes of all issues raised within the IEAD. We find it does not.

An employer that relies solely on stipulated factual matters in order to establish elements of an affirmative defense does so at its peril. We find that the stipulated facts alone when supplemented by the hearing record do not establish element 3. The facts in this case do not demonstrate “effective” enforcement of Employer’s safety program. In presenting an affirmative defense, Employer has an obligation to present sufficient evidence to establish the elements of the affirmative defense. As a Board created affirmative defense, the IEAD required Employer to prove by a preponderance of evidence that it had an effective program, which it enforced.

In this case, by means of the stipulation, Employer established that it had an “active” program.8 That assertion, without more, however, does not resolve the question of whether it was effective. As noted by the ALJ, four employees of Employer knowingly failed to follow a safety rule at the same time. That raises an inference that they each thought they could do so with impunity, calling into question the effectiveness of Employer's program.

The burden of proof is on Employer to establish the elements of the affirmative defense. Although the stipulation constitutes evidence regarding Employer's safety program, we find that, in light of the entire record, the defense was not established.

Employer’s petition appears to suggest that the incident involves a single, isolated violation of its safety program. Its hearing brief characterizes one omission merely as “Cortez, without thinking, turned on the main switch.” Employer’s position fails to take into account the context of the incident and the series of omissions it entailed.

First, Employer, as detailed further below, was found to have violated section 3314(f), specifically for failing to comply with its duty to develop and implement specific written lockout procedures for the machine in question. That safety order requires employers to describe the procedural steps their employees must take to shut down a specific machine, the procedural steps employees must follow as to when and how to place lockout devices on equipment, which employee(s) are responsible for the task, requirements to test the machine to verify the effectiveness of the lockout devices, and periodic inspections (at least annually), documented by written certifications, to make sure the employees are following its lockout program.

One may reasonably infer that a lockout program lacking the requisite specificity tends to hamper an employer’s ability to monitor and document its effectiveness. That notwithstanding, the incident in question suggests that each of the four workers engaged in multiple violations of the lockout program elements in section 3314(f). Each failed to take measures to shut the equipment down at its power source. Only the emergency switch was activated, which is not proper shut-down.9 Even Employer’s general lockout program required the workers to lock out “the main power control leverage.” Each worker failed to place a lock on the machinery, another requirement of Employer’s program. Each failed to take steps to “verify the effectiveness of the lockout devices” they were supposed to have used [§ 3314(f)(4)], before attempting any repairs. The incident, therefore, suggests more than a single, isolated violation by a lone individual. The series of mis-steps raises material questions about the lockout program’s effective implementation and enforcement.

In light of these questions, it was incumbent on Employer, upon whom the burden of proof rests, to offer evidence to demonstrate how and why these multiple omissions are not incompatible with an “effectively enforced” safety program. Employer did not present evidence to that effect.

Consequently, Employer did not carry its burden of proving that its safety program is effectively enforced. That being so, Employer has not established the IEAD, and the violation must be affirmed.

Was the Violation Properly Classified as Serious?

Employer contends also that it was not aware of the violation so it should not be classified as serious. Employer has the burden of showing that “it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”10 To show Employer could have known of the violative condition by exercising reasonable diligence, the Division had to prove the violation occurred at a time and under circumstances providing Employer with a reasonable opportunity to have detected it.11 Here, the conveyor belt broke and a call for mechanics went out on the intercom; Alvarez and Francisco responded. When Alvarez and Francisco arrived at the machine after retrieving repair equipment, Cortez and Fidencio were present. The machine was located in Employer’s facility and photographic evidence showed that it was of sufficient size to be easily detectable and recognizable. In other words, the absence of the locks was something Employer’s supervisors could have detected by a reasonable “plain sight” inspection. The Board has found that hazardous conditions in plain view constitute serious violations since an employer could detect them by exercising reasonable diligence.12

We find that the violation of section 3314(b) was properly classified as serious because Employer had a reasonable opportunity to detect the violative condition and it failed to affirmatively establish that it lacked knowledge of the violation. Employer, with the exercise of reasonable diligence, could have known of the violative condition that was in plain view.

Docket No. 01-R3D5-281
Citation 1, General, Section 3314(f)

EVIDENCE

The Division cited Employer for failing to specifically outline the steps for shutting down, isolating, blocking and securing the plastic tabletop conveyor on Employer’s Busse Unloader.

As part of his investigation, Blodgett asked Employer’s Human Resources Manager, Cynthia Ann Barela (Barela) for a copy of Employer’s written lockout program for the Busse Unloader. On November 29, 2000, he received a document titled “Lockout” containing 13 sections, which was a general outline consisting of training overheads and instructors’ notes. The document was introduced as an exhibit at the hearing by the Division. It does not refer specifically to any machines or contain any specific lockout procedures. On November 29 and some time later, Blodgett asked if there was anything more specific regarding lockout procedures for the unloader, but he did not receive anything. Based upon the above, Blodgett issued Citation 1 for a general violation of section  3314(f).

At the hearing Employer introduced a document that contained detailed lockout/tag out procedures for the Busse Unloader plus a facsimile transmittal to Blodgett dated May 21, 2001 signed by Barela. Blodgett could not recall if he received the fax. He was unable to give an opinion on whether the procedures were adequate since he was not familiar with the Busse Unloader.

Barela testified for Employer that one of her duties included maintaining Employers’ safety records, the Illness and Injury Prevention Program and other health and safety documents. She further testified that the written lockout/tag out procedures existed before October 23, 2000. There was a handwritten note on the lockout/tag out procedures which read “1998—April.” Barela acknowledged that she handwrote that note and that the procedures have been in effect since then. She said both the Division’s exhibit and Employer’s exhibit were in existence prior to October 23, 2000. She also said they are part of a list of lockout procedures for each piece of equipment at the site put together by the Director of Operations as part of a manual.

ISSUE

Did the Division establish a violation of section 3314(f)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division cited Employer under section 3314(f), which provides as follows:

(f) An energy control procedure shall be developed and utilized by the employer when employees are engaged in the cleaning, repairing, servicing or adjusting of prime movers, machinery and equipment. The procedure shall clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy, and the means to enforce compliance, including but not limited to, the following:

(1) A statement of the intended use of the procedure;
(2) The procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy;
(3) The procedural steps for the placement, removal and transfer of lockout devices or tagout devices and the responsibility for them; and
(4) The requirements for testing a machine or equipment, to determine and verify the effectiveness of lockout devices, tagout devices and other energy control devices.

Employer did not dispute that the Division’s exhibit (the general outline) was given to Blodgett on November 29, 2000. The parties agreed that the Division’s exhibit did not contain specific steps, but that Employer’s exhibit (detailed lockout procedures) contained specific steps for locking out the Busse Unloader. Blodgett’s testimony that he requested more specific procedures on the date of his inspection and at a later time was unrefuted and was credited by the ALJ. The findings of the ALJ are entitled to deference unless they are opposed by evidence of considerable weight.13 Employer’s evidence shows that the first time more specific steps were sent to Blodgett was May 21, 2001, more than six months after Blodgett’s request.

In Citation 1, the Division described the alleged violation in these terms:

As of November 29, 2000, the company’s Lockout Program did not specifically outline the steps for shutting down, isolating, blocking and securing the plastic tabletop conveyor on the Busse Unloader (Sweeper Line #8). On November 29 and December 6, 2000, a request was made for a copy of any additional procedures, which might have existed on October 23, 2000, for locking out and tagging the Busse Unloader. As of December 11, 2000, no additional procedures had been received.

These allegations put Employer fairly on notice that the document it provided to the Division on November 29, 2000 was not specific enough. Barela testified that the more specific procedures (Employer’s exhibit) existed prior to October 23, 2000. Her testimony on this point was not credited by the ALJ. We will not disturb the factual findings of the ALJ who based the findings on the weight and credibility of the evidence presented at the hearing. The ALJ was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witnesses and weigh their statements in light of their manner on the stand.14 Giving Blodgett the general outline (Division’s exhibit) shows that Employer understood that Blodgett requested a copy of the lockout procedures. If the more specific procedures were part of one manual, as Barela testified, it is inherently improbable that the most relevant portion would be omitted. If Employer had the requested procedures on the date of the accident, it is not reasonable to believe that they would wait over six months to send them to the Division. The more reasonable explanation is that Employer did not have them until after issuance of the citation.

Based on the above, we find that the Division established a general violation of section 3314(f).

DECISION AFTER RECONSIDERATION

As set forth above, Employer’s appeal is denied.

Docket No. 01-R3D5-282

A serious violation of section 3314(b) is established and a civil penalty of $18,000 is assessed.

Docket No. 01-R3D5-281

A general violation of section 3314(f) is established and a civil penalty of $560 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: February 28, 2003

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Counsel also said that it might make it easier to refer to the stipulation in the decision.
3 The ALJ based her finding of the knowledge element of the serious violation on facts other than Fidencio’s supervisory status.
4 Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration (Oct.16, 1980).
5 Central Coast Pipeline Construction Co., Inc., Cal/OSHA App. 76-1342, Decision After Reconsideration (Jul.16, 1980).
6 Ernest W. Hahn, Inc., Cal/OSHA App. 77-576, Decision After Reconsideration (Jan.25, 1984).
71) The employee was experienced in the job being performed; 2) the employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments; 3) the employer effectively enforces the safety program; 4) the employer has a policy which it enforces of sanctions against employees who violate the safety program; and 5) the employee caused a safety infraction which he or she knew was contra to the employer’s safety requirements. (Mercury Service, Inc., supra.)
8 We are not sure why Employer sought to establish that it had active enforcement of its program since active enforcement is not an element of the IEAD.
9 Merely pushing an "off" button does not satisfy the mandate in section 3314(a) to de-energize the machine at its power source for the purpose of cleaning, servicing, etc. the machine. (See Simpson Timber Co., Cal/OSHA App. 77-1038, Decision After Reconsideration (June 9, 1980); and California Cascade Industries, Cal/OSHA App. 79-945, Decision After Reconsideration (Dec. 15, 1980).)
10 Labor Code section 6432(b).
11 Lights of America, Cal/OSHA App. 89-400, Decision After Reconsideration (Feb. 19, 1991).
12 Fibreboard Box & Millwork Corp., Cal/OSHA App. 90-492, Decision After Reocnsideration (Jun.21, 1991).
13 Lamb v. Workmen’s Compensation Appeals Board (1974) 11 Cal.3d 274, 280.
14 Garza v. Workmen’s Compensation Appeals Board (1970) 3 Cal.3d 312, 318.