BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

McDONNELL DOUGLAS AEROSPACE
2400 East Wardlow Road
Long Beach, CA 90810

                                        Employer

Docket No. 94-R3D5-2331

 

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 proceeding by the Division of Occupational Safety and Health (the Division) makes the following decision after reconsideration.

JURISDICTION

From May 24 through July 8, 1994, a representative of the Division conducted an accident investigation at a place of employment maintained by Employer at 2400 East Wardlow Road, Long Beach, California (the site). On August 9, 1994, the Division issued to McDonnell Douglas Aerospace (Employer) Citation No. 1, alleging a serious violation of section 4184(b) [point of operation guarding] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed a $5,000 civil penalty for the alleged violation.

Employer filed a timely appeal from the citation contesting the existence of the alleged violation.

An administrative law judge (ALJ) of the Board heard the appeal on November 7, 1995, and February 20, 1996. At the hearing, Employer's appeal was amended to include the classification of the violation, the abatement requirements, and the civil penalty.

Also at the hearing, the ALJ noticed that part of one of the Division’s witness’s direct testimony had not been recorded because the recording device had not been turned on. The ALJ informed the parties of the omission, and the Division repeated the unrecorded part of the direct testimony.

The ALJ issued a decision on August 5, 1996, and the Division filed a petition for reconsideration on September 7, 1996. Employer filed an answer on October 15, 1996. The Board granted reconsideration of the petition on October 29, 1996.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recording of the hearing and each exhibit admitted into evidence. The Board has taken no new evidence. The Board adopts and incorporates by this reference the "Summary of Evidence" set forth on pages 2 through 9 of the ALJ’s decision.

Employer assembles blankets that are used to insulate the fuselages of military airplanes. The blankets consist of foam or fiberglass insulating material sealed within sheets of Mylar. The blankets must be cut to precise measurements to fit the airplanes and the Mylar sheets must be sealed together tightly around the edges of the blankets so condensation cannot get into the insulating material.

At the time of the inspection, Employer was sealing the edges of the blankets with a Vertrod Thermal Impulse Heat Sealer (the sealer). The sealer was a 300-pound, metal-frame machine. The parts directly involved in a sealing operation consisted of a stationary "heater bar" that was 37 inches long and 5/8ths of an inch wide and a pneumatically operated "pressure bar" of the same dimensions. The heater bar was at tabletop height. The pressure bar's position of rest was three inches above the heater bar. It moved down and up on slides and was activated by a foot pedal. Both bars contained an element that heated a line along the length of its contact surface momentarily when an electrical impulse was sent to the element.

To seal a blanket, an employee sat in a chair directly in front of the heater bar and laid the edges of the Mylar sheets to be sealed over the heater bar. The heater bar is inset 1/4 of an inch from the front of the sealer frame. To ensure that the Mylar sheet edges stayed in correct position when the pressure bar contacted the heater bar and the seal was made, the sealer operator held the Mylar against the 1/4 inch wide lip with his or her fingertips. Then the operator pressed the foot pedal and the pressure bar descended slowly to press the edges of the Mylar sheets against the heater bar with 50 pounds of pressure per square inch while the three-second heating and sealing operation was accomplished.

Until the pressure bar descended to within two or three centimeters (approximately 4/5ths to 1 and 1/5th inches) of the heater bar, it would stop moving downward if the employee took his or her foot off the pedal. Once the pressure bar reached that point it continued through the two to three second heat-sealing cycle even if the foot pedal was released.

There was no guard on the sealer to prevent an employee from inserting a finger into the space between the descending pressure bar and the heater bar. There was an emergency stop button, but it was not within easy reach of an employee seated in front of the sealer.

An employee accidentally placed the tip of his left middle finger on the heater bar when he depressed the foot pedal. The pressure bar came down and contacted the top of his fingertip. He felt a burning sensation and jerked the fingertip out from between the bars, tearing flesh from the fingertip. Doctors were unable to reattach the flesh and amputated the fingertip, including one millimeter of bone.

After the accident, Employer made several attempts to provide employees with protection against the point of operation hazard. The sealer’s manufacturer refused to help because it believed that guarding was unnecessary and could not be done without interfering severely with use of the sealer.

Employer fabricated and, on a trial basis, installed a barrier guard that prevented the passage of fingertips into the point of operation. To do this, the brackets holding the guard had to be attached at both ends of the sealer in front of the point of operation. The brackets limited Employer to making continuous seals that were no longer than 36 inches and some of the blanket edges to be sealed were much longer than that. Also, a table had to be placed in front of the sealer. The table pushed the operator back from the point of operation so far that the operator could not see if the Mylar was correctly positioned for sealing. Hence, Employer determined that use of the guard was infeasible.

Its attempts to guard the point of operation having failed, Employer ceased using the sealer and began sewing the edges of the blankets. Employer was concerned that the holes made in the Mylar by the sewing machine might admit moisture into the blankets, but none of the sewn blankets had been rejected by the military. Whether heat-sealed or sewn, the edges of the blankets were covered with tape.

ISSUES

1. Should the Division's motion for a new hearing be granted because of deficiencies in the electronic recording of the hearing?

2. Did the Division prove by a preponderance of the evidence that the sealer presented a point of operation hazard similar to the hazard presented by a machine specifically covered in Group 8?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Failed to Show that Electronic Recording Deficiencies Invalidated the Hearing Record.

Pursuant to section 376.7, the Board, through the ALJ, made the official record of the hearing by means of an electronic tape recorder. After one recess, the ALJ forgot to reactivate the microphones before resuming the hearing. The mistake was detected during the hearing and the Division representative re-examined the witness on the portion of the testimony omitted. Also, some questions and answers, or portions of them, on the hearing tapes are inaudible.

The Division's petition for reconsideration includes a motion for a new hearing on the ground that "the record has been unalterably damaged" to the extent that there is no "competent" evidentiary record available for the Board and courts to review. However, the Division does not describe the evidence it believes was omitted and explain why consideration of that evidence is essential to a fair and informed decision of the issues presented by the Division's petition.

The electronic record consists of ten tapes. The Board’s review of the tapes and the written transcript prepared from them indicates that only a small fraction of the testimony is inaudible. The Board’s review also shows that the Division thoroughly re-examined the witness whose testimony was omitted due to the ALJ's failure to reactivate the microphones. Certainly, the Division was inconvenienced, but no appreciable loss of evidence is apparent.

New hearings, like new trials, are not to be granted lightly due to record irregularities. California Code of Civil Procedure (CCP) section 914 provides that a trial or reviewing court may order a new trial "when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter . . . because of the loss or destruction, in . . . substantial part, of the [reporter's] notes . . . ."

To establish grounds for a new trial under CCP section 914, the moving party must show that it is impossible to secure a transcript of lost notes, that the transcript is necessary to present substantial issues, and that the moving party exercised reasonable diligence to overcome the problem by stipulation or settled statement. (See Santa Cruz County Redevelopment Agency v. Izant (1995) 37 Cal. App. 4th 141, rehearing denied.) Whether the loss is substantial enough to warrant a new trial depends on "whether the questions which an appellant desired to raise on appeal could be properly considered without . . . [the lost part of the notes]." (Lilienthal v. Hastings Clothing Co. (1954) 123 Cal.App.2d 91, 93.) And, subject to review for abuse, the granting of a new trial is within the court's discretion. (Kroeker v. Jack (1942) 51 Cal.App.2d 272.)

CCP section 914 does not apply to the Division's motion, but it and the cited cases illustrate the reluctance of the legislature and the courts to remedy record deficiencies by means of a new trial unless the moving party demonstrates a clear and compelling need for resort to that measure. The Division's general allegation that the record was "unalterably damaged" does not demonstrate such a need, nor does the Board’s review of the record disclose such a need. Accordingly, the Division's motion for a new hearing is denied.

2. The Division Failed to Prove that the Hazard Presented by the Sealer's Point of Operation was Similar to the Hazard Presented by the Point of Operation of One of the Machines Specifically Covered in Group 8.

Section 4184 states:

Guarding Required.

(a) Machines as specifically covered hereafter in Group 8, having a grinding, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action, in which an employee comes within the danger zone shall be guarded at the point of operation in one or a combination of the ways specified in the following orders, or by other means or methods which will provide equivalent protection for the employee.

(b) All machines or parts of machines, used in any industry or type of work not specifically covered in Group 8, which present similar hazards as the machines covered under these point of operation orders, shall be guarded at their point of operation as required by the regulations contained in Group 8.

The concept of section 4184 is simple and logical. Subsection (a) provides that machines specifically covered in Group 8, ones having various types of actions and exposing employees to a point of operation hazard, must be guarded either as specified for that type of machine in Group 8 or by "other means or methods which . . . provide equivalent protection." Subsection (b) imposes the same guarding requirements for machines that are not specifically covered in Group 8 but present point of operation hazards "similar" to those of machines that are specifically covered. Neither subsection sets rigid guarding requirements that allow for no deviations. Under both, an employer may utilize the means specified for a "similar hazard" Group 8 machine or utilize other means so long as equivalent protection is provided.

In National Steel & Shipbuilding Co., OSHAB 78-1488, Decision After Reconsideration (Oct. 18, 1979), the Board declared that "Group 8 encompasses all orders on the guarding of points of operation of dangerous machinery," and rejected the employer's contention that former section 4185(b), the substantially identical predecessor of section 4184(b), was too vague to be enforced:

Under section 4185(b) the employer has the license to scan all Group 8 orders to find the type of guard that protects the operator of a particular machine against point of operations hazards. If his selection of a guard is one that a reasonable man knowledgeable about the machine in question, such as a hydraulic press, might make, he has met the requirements of the safety order. A consensus of what is a proper method of guarding is reachable among reasonable men. Consequently the order is not so indefinite as to be enforceable.

At that time, hydraulic power presses were expressly excluded from the guarding requirements of Article 55 of Group 8 and mechanical power presses were specifically included. Notwithstanding the express exclusion of hydraulic presses from Article 55, the Board held that, because the hydraulic power press presented a hazard similar to a mechanical power press, the Division could cite the employer under section 4185(b) for not guarding its hydraulic power press in accordance with Article 55 requirements.

The Board, in subsequent similar cases arising under section 4184(b), has followed National Steel & Shipbuilding Co., supra. (See, e.g., Lortz & Son Mfg. Co., OSHAB 80-618, Decision After Reconsideration (Aug. 28, 1981); Hanson-Speier Corporation, dba L & M Machine Shop, OSHAB 81-0074; Thomsen Equipment, OSHAB 78-1436, Decision After Reconsideration (Dec. 30, 1983).)

In this case, the ALJ stated that "[t]he specific exclusion of the pneumatic power presses from Article 55 would be rendered meaningless if the Division could impose identical requirements by citing section 4184(b)." This statement is inconsistent with the holdings of the cases cited in the preceding paragraph and, therefore, is rejected.

However, that misstatement did not invalidate the ALJ's decision. The ALJ assumed, for argument’s sake, that Article 55 could be applied to the sealer under section 4184(b) if it presented a hazard similar to an Article 55 power-operated press. The ALJ then followed the decision-making steps taken by the Board in City of San Luis Obispo, OSHAB 89-065, Decision After Reconsideration (May 2, 1990) to decide the issue.

In City of San Luis Obispo, supra, the Division issued a citation alleging that the employer violated section 4215 by not guarding two presses in accordance with those requirements. The citation did not refer to section 4184(a) or (b), but to section 4215. Section 4215 is one of the Group 8, Article 55 standards made applicable to hydraulic power operated presses by section 4189, the scope section of Article 55. Section 4215 prescribes point of operation guarding requirements for hydraulic power presses (punch presses).

The City of San Luis Obispo’s presses were used to "form" metal by straightening bent components of the brush assemblies on street sweepers one of the types of operations stated in section 4189 to be within the scope of Article 55. However, section 4189 also states that Article 55 applies only to presses that perform operations on "metal or other material by means of tools or dies attached to slides."

Since Employer's presses did not perform their metal forming operations "by means of tools or dies attached to slides," the Board found that they were not "specifically covered" by section 4215.

Having ruled out the applicability of section 4215, the Board opted to inquire into whether the employer had violated section 4184(b) by failing to guard the presses by means prescribed in Group 8 for machines that presented similar hazards. The Board found that punch press hazards most closely resembled the hazards presented by the employer's utility presses and compared them.

Evidence concerning the hazard presented by a punch press indicated that "once a punch press is activated, either automatically or by an operator, the slide goes through a complete cycle and cannot be stopped," that they "stroke downward very rapidly," and that "the stroke also must cover some distance in order to provide the force necessary to shear, punch, form, or assemble metal or other materials."

In contrast, the evidence concerning the employer's two utility presses indicated that "the ram on the press moved [downward] at a rate of approximately one inch every forty seconds," that the press operator must maintain constant pressure on the device controlling movement of the ram or "the ram stops moving instantaneously," so there was "no automatic cycle of the ram . . . [and] the ram can be made to touch the material being pressed or bent before the machine is turned on."

Due to these differences, the Board determined that the City’s presses did not present hazards similar to those presented by punch presses and granted the City’s appeal.

The ALJ in this case determined that the sealer was not specifically covered in Group 8 and, proceeding under section 4184(b), then compared the hazard presented by the sealer with the hazard presented by a punch press, and found them to be dissimilar for these reasons:

The Vertrod heat sealer does not present hazards comparable to the hazards inherent in a metal striking machine that moves rapidly, with great force, and which ordinarily can’t be stopped once it has started. The pressure bar on the Vertrod heat sealer moves slowly, its downward action can be stopped or the bar retracted if the kill switch is hit. The maximum pressure exerted by the 36PS Vertrod sealer is 50 pounds per square inch, pressure insufficient to cause appreciable injury to an operator, when applied slowly for a period of less than three seconds.

The Division disputes these findings for several reasons. It argues that the testimony of the inspecting compliance officer and the fact that the injured employee lost a fingertip as a result of the accident prove that the sealer presents a crushing type hazard similar to that presented by a punch press. The Board disagrees with the Division on this point for the following reasons.

Crushing force tends to smash or pulverize a finger, not tear tissue from it, so the injury to the employee does not tend to prove that the point of operation presented a crushing hazard.

The employee testified that he withdrew his finger in response to heat, not pinching or squeezing. If a thermal impulse occurred while the employee's finger was between the heater and pressure bars, burning may have caused the finger to stick to the bars. The application of heat rather than crushing or pressing force may account for the tearing away of the tissue as the finger was jerked back laterally from between the bars. There was also unrefuted testimony to the effect that the injured employee had an extraordinarily long fingernail on that finger which may have become snagged and contributed to the injury. No medical records or testimony from the treating physician were presented to help identify the type of hazard or other factors responsible for the injury.

The compliance officer testified that he had had no previous experience with a heat sealer of this type and he was not shown to be an expert on the injury effects of applying 50-psi of force to a finger in the manner force was applied by operation of the sealer. In light of that and the fact that other reliable evidence in the record appears to be inconsistent with his opinion that the sealer presented a crushing type hazard his opinion on this point is accorded little weight.

In sum, the record leaves the nature of the hazard presented by the sealer substantially in doubt. Without greater certainty, the similarity of the sealer hazard to a punch press hazard, or for that matter, to the hazard presented by any Group 8 machine, cannot be determined with reasonable accuracy and reliability. The Board concludes that the Division failed to prove that the sealer presented a crushing hazard similar to that presented by a punch press.

The Division argues that the ALJ’s finding that 50-psi of pressure is "insufficient to cause appreciable injury to an operator, when applied slowly for a period of less than three seconds" is not supported by the evidence. On this point the Board agrees with the Division, but, again, setting aside this finding does not appreciably improve the Division’s case or invalidate the conclusion that Employer’s appeal should be granted.

The Division had the burden of proving the similarity of the hazards. Hence, it had to affirmatively prove the converse of the errant finding, or, in other words, that 50-psi of pressure is sufficient to cause appreciable injury to an operator's finger, when applied slowly for a period of less than three seconds. And, for the reasons explained above, the Board has found that the Division failed to meet that burden.

In City of San Luis Obispo, supra, the Board used the difference between the speed of descent of the rams on the employer's presses [one inch every 40 seconds] and the speed of descent of a punch press ram [very fast] as one of the bases for finding that the hazards were not similar. The ALJ in this case applied that criterion and found that the slow descent of the pressure bar tended to distinguish the sealer hazard from a punch press hazard. The Division contends that it was improper for the ALJ to cite City of San Luis Obispo as authority for the finding because the descent speed differential was much greater in that case than in this one. The Board disagrees.

The exact speed of the descent of the pressure bar was not established in the record. However, the witnesses agreed that the pressure bar descended "slowly," and no witness testified that its speed was an element of the hazard presented. In contrast, the downstoke of a punch press is rapid and affords an employee practically no opportunity to withdraw a hand from the point of operation once the cycle is initiated. Therefore, as the Board found in City of San Luis Obispo, the speed of a punch press ram is an element of the hazard presented. The speed differential may have been less in this case. But the evidence here was sufficient to prove that the pressure bar's rate of descent did not eliminate the opportunity for an employee to react defensively during the downstroke, as does the speed of a punch press ram. In this respect, the case is like City of San Luis Obispo. Hence, the Board concluded that the ALJ did not err in citing that decision on this point or by finding that the downstroke speed differential was some evidence of dissimilarity of the hazards presented.

The evidence indicates that an employee operating the sealer had to maintain constant pressure on the foot pedal to keep the pressure bar moving downward and could stop the pressure bar by removing his foot from the pedal at anytime before the pressure bar was within two or three centimeters (approximately 4/5ths to 1 and 1/5th inches) of the heater bar. Thereafter it could be stopped only by actuating the "kill switch." The kill switch was on one end of the sealer, not on the front where the employee work station was located and not easy to reach from there. Obviously, these features did not eliminate the possibility of inadvertent contact with the point of operation. However, in conjunction with the pressure bar's slow descent speed, they are defining characteristics of the hazard presented by the sealer. A punch press lacks these characteristics; once the rapid downstroke of the ram is triggered, the press operator has no means of stopping it.

The Division argues that this distinction is irrelevant to the similarity of the hazards presented because it does not change the fact that both the sealer and a punch press present crushing hazards, and that fact alone establishes that the hazards are similar. The Board might agree with the Division if the Division had proven that the sealer presents a crushing hazard, but the Board has found that the Division failed to do so. In cases where the hazard is clearly identified, machine characteristics may tend to reduce the probable severity or likelihood of an accident without changing the nature or type of the hazard to which an employee is exposed. Characteristics having this effect do not preclude a finding under section 4184(b) that the hazard presented by a machine with such characteristics is similar to the hazard presented by a machine without them.

However, in cases such as this, where the nature of the hazard presented by the cited machine is in doubt, the scope of the inquiry into the similarity of that hazard to another may have to include comparative analysis of a broad range of hazard-defining or hazard-identifying characteristics. Therefore, in the Board’s view, the ALJ did not err in this case by considering such characteristics as the availability to an employee of means to interrupt the cycle of the sealer and a punch press.

The Board agrees with the Division that the employee involved in the accident suffered an "appreciable injury" to his finger. But this does not change the Board’s view that the Division failed to prove the injury was caused by a hazard similar to the crushing hazard of a punch press.

The ALJ also searched the other 16 Articles of Group 8 for machines that might present point of operation hazards similar to the sealer. The sealer bore some resemblance to press type ironers specifically covered by section 4492 of Article 67 ["Laundry and Dry Cleaning Equipment"] in that a "thermal burn" was the "theoretical" hazard presented by both. However, the evidence indicated that the sealer did not expose an employee to the hazard of a thermal burn because the "sealer will not release heat if the jaws [i.e., the heater and pressure bars] are not locked, and the jaws will not lock if a finger is sitting on the heating element." Accordingly, the ALJ concluded that the hazard similarity necessary to support a section 4184(b) violation was lacking. The Board concurs.

ALJ findings that are "supported by solid, credible evidence . . . [are] to be accorded great weight by the Board and should be rejected only on the basis of contrary evidence of considerable substantiality." (Lamb v. Workmens’ Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-281.)

With the exceptions noted, the Board believes that the ALJ’s findings are supported by solid, credible evidence and that the sustained findings support the decision. The Division capably brought some mistakes to the Board’s attention. The Division, however, did not show that the mistakes invalidated the decision. Nor did the Division demonstrate that the record contains contrary evidence of considerable substantiality warranting rejection of the findings supporting the decision.

DECISION AFTER RECONSIDERATION

The relief sought by the Division is denied. The ALJ's decision to grant Employer's appeal is affirmed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – October 14, 1999