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

In the Matter of the Appeal of:

NACO INDUSTRIES, INC.
2395 Maggio Circle
Lodi, CA 95240

                                    Employer

Docket Nos. 95-R2D2-3175
through 3177

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 Naco Industries, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

On July 7, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 2395 Maggio Circle, Lodi, California.

On August 7, 1995, the Division issued to Employer the following citations and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.

Citation                  Section                      Type                 Penalty

     1                            342(a)                      Regulatory      $150

                                [serious injury report]

    2                            4000(d)                     Serious            $375

                                [design and location of controls]

    3                              4185(b)                    Serious           $3,500

                                [point of operation guarding]

Employer filed timely appeals from the citations contesting the existence of the violation alleged in Citation No. 2, the classification of the violations alleged in Citation Nos. 2 and 3, and the reasonableness of all proposed civil penalties.

An administrative law judge (ALJ) of the Board heard the appeals on April 19, 1996. At the hearing, the ALJ granted Employer's motion to withdraw its appeal from Citation No. 1 and the related penalty. The ALJ also granted the Division's motion to amend Citation No. 3 to allege a violation of section 4184(b) [point of operation guarding for machines not covered by Group 8], instead of section 4185(b), to correct a clerical error.

The ALJ issued a decision dated May 23, 1996. The ALJ’s decision confirmed Employer's withdrawal of its appeal from Citation No. 1 and set aside the $375 civil penalty proposed for Citation No. 2, while otherwise denying Employer's appeal from that citation. The ALJ set aside the civil penalty because both Citation Nos. 2 and 3 addressed a single hazardous condition which could be corrected pursuant to citations issued under any one of multiple safety orders that might apply. (San Francisco Newspaper Agency, OSHAB 93-319, Decision After Reconsideration (Dec. 20, 1996); Strong Tie Structures, OSHAB 75-856, Decision After Reconsideration (Sept. 16, 1976).) The ALJ also amended Citation No. 3 after submission of the case to allege a violation of section 4184(a) [point of operation guarding for machines covered by Group 8] and denied Employer's appeal from the citation and the related $3,500 civil penalty. Employer filed its petition seeking reconsideration of the ALJ’s decision.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing and the exhibits admitted into evidence, relevant to the issues raised by Employer in its petition for reconsideration. The Board has taken no new evidence and incorporates by this reference the "Summary of Evidence" set forth on pages 2 through 8 of the ALJ’s decision.

Employer, a manufacturer of plastic fittings for agricultural irrigation pipe, was issued Citation No. 2 because the power controls for the rams on one of its T forming machines were so designed and located that they could be operated by accidental contact with its plastic pipe forming. Citation No. 3 alleged that points of operation on the same machine were unguarded.

Docket No. 95-R2D3-3176

Citation No. 2

section 4000(d)

ISSUES

    1. Is the T forming machine (the machine) a "Group 8 ("process machine")" subject to the requirements of section 4000?

2. Were the machine's power controls designed and located to prevent their operation from accidental contact with an object or body part?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The T Forming Machine (the Machine) Is a "Group 8 (‘Process Machine’)" Subject to the Requirements of Section 4000.

Employer designed and built the machine to form plastic pipe "T" fittings or connections. The plastic pipe stock was hand fed into the machine by the machine operator and there was no guard or safety device on the machine to prevent the operator from extending a hand into the point of operation.

The machine had two hydraulically operated rams; one descended from above the pipe mold, the other ascended from below it during forming operations. The movement of each ram is controlled by separate levers. The levers are a short distance apart.

An employee suffered a serious injury when his hand got caught between a ram and the mold. The Division's inspecting compliance officer concluded that the injury occurred because the employee, whose attention was focused on the point of operation, accidentally pulled the lever of the wrong ram.

Based on the compliance officer's understanding of how employees operated the T forming machine, the function the machine performed, and how the accident had happened, the Division, in Citation No. 2, charged Employer with a serious violation of section 4000(d). The citation alleges that the ram operating levers, or power controls, were located too close together to avoid the hazard of unexpected operation of one of the rams due to accidental contact with the wrong power control lever.

The title of section 4000 is "Process Machine Power Control," (emphasis added) and subsection (d) reads as follows:

Machine power controls shall be maintained in safe operating condition and shall be so designed, installed and/or located that they cannot operate from accidental contact with objects or parts of the body.

Section 4001, on the other hand, is entitled, simply, "Machine Power Control," and provides that; "All machines shall be equipped with adequate means whereby the operator of the machine or other person can disconnect the power promptly in case of emergency." Employer was in compliance with this requirement.

The ALJ decided that the machine was a "process machine" to which section 4000(d) applied, for these reasons:

The intended scope of the term [process machine] is best understood by contrasting it with the other kinds of machinery described in Article 41 conveyors, flywheels, and the like. In that context, it is a broad category which includes any machine which performs a manufacturing process, as distinguished from machinery which move[s] material (conveyors)[,] provide[s] uniform energy (flywheels), or perform[s] other tasks.

In its petition, Employer opines that the machine "more properly fits the definition of a machine than a process machine," but does not explain the basis for that opinion beyond stating that the broader title of section 4001 demonstrates that there is a distinction between the two.

The Board agrees that the evidence concerning the machine's function and the ALJ's interpretation of section 4000(d) and related provisions adequately supports his determination that the machine was a process machine. Employer has not shown otherwise. Hence, the Board affirms the determinations that the machine was a process machine and that section 4000(d) applied.

2. The Machine's Power Controls Were Not Designed and Located to Prevent Their Operation from Accidental Contact with an Object or Body Part.

The compliance officer testified that he concluded that the injury occurred because the employee accidentally pulled the wrong ram control lever. However, the injured employee testified that he pulled the right lever with the intention of activating the ram but did not realize it would contact his hand. The ALJ credited the injured employee's testimony on this point, with a finding that the design or location of the levers was not a cause of the injury. Nonetheless, based both on the compliance officer's testimony that the levers were close together and a confirming photograph that was introduced into evidence, the ALJ determined that the "design, installation and/or location" of the levers was such that they could be operated by accidental contact. Thus, the ALJ found a violation of section 4000(d).

Employer contends that the finding is not supported by a preponderance of the evidence, pointing out that the machine had been used safely many times before the injury and that the single injury that did occur was not caused by unintended contact with the wrong lever. The principal cause of the injury, in Employer's view, was the employee's inattention or failure to exercise proper care, which could not be overcome by changing the design or location of the levers.

Repetitive use of the machine without the design, installation, or location of the power controls causing unintended operation of one of the rams may provide some basis for inferring that the controls "cannot operate from accidental contact with objects or parts of the body." However, when other direct evidence of power control design, installation, and location implies strongly that accidental contact could occur, the inference is not controlling. (See General Motors Corporation, General Motors Assembly Division, OSHAB 77-573, Decision After Reconsideration (Aug. 9, 1978).)

Here, the compliance officer viewed and photographed the ram power control levers. He did not measure the distance between the levers, but his testimony that they are next to each other and the photograph, showing that there is less than a hand's breadth between the levers, and no guards or shields between or around them on any side, is sufficient to support the finding that either lever could have been operated by accidental contact.

Employer's argument that accidental contact could only occur through employee negligence is factually weak given the close proximity of the levers. Moreover, an employer who has not provided a required guard or safety device may not be relieved of responsibility for the violation by the misconduct or independent action of an employee who is injured as a result. (Sierra Pacific Industries, OSHAB 77-891, Decision After Reconsideration (Aug. 31, 1984).)

Accordingly, the Board affirms the ALJ's finding of a section 4000(d) violation.

The ALJ found that the violation was serious because Employer built the machine and knew the ram control levers were close together and because it was substantially probable that an accident caused by the violation could result in serious physical harm or death.

The machine had features that reduced the potential for serious harm from accidental contact with one of the power controls. Safety latches caused the rams to retreat to the rest position when the operator ceased contact with the controls. The controls were also so designed that if both levers were contacted at once, neither ram would move toward the point of operation.

These features tended to reduce the likelihood of an accident occurring. However, they did not eliminate the possibility that while a machine operator had a hand in the upper or lower point of operation, either he or another employee could accidentally contact the power control for the ram and catch his hand.

The employee whose hand was caught in the point of operation suffered a serious injury, and Employer did not refute the compliance officer's testimony that the rams operated with enough force to make serious physical harm substantially probable in the event of an accident. Thus, the Board agrees that the violation was serious.

For the section 4000(d) violation alleged in Citation No. 2, the Division proposed a $375 civil penalty. The ALJ reduced the proposed penalty to $0 because both Citation No. 2 and Citation No. 3 related to the hazard of getting a hand or body part caught in the points of operation, guarding the points of operation would eliminate the common hazard, and Employer was being penalized $3,500 for the violation alleged in Citation No. 3. In view of the Board’s disposition of Citation No. 3 below, these considerations do not apply. The Board finds that a civil penalty of $375 is reasonable, and shall assess a civil penalty in that amount for Citation No. 2.

Docket No. 95-R2D3-3177

Citation No. 3

section 4184(a)

ISSUE

Did the ALJ err by not notifying the parties of the intended amendment of Citation No. 3 after the case had been submitted for decision and by not providing them with an opportunity to show that the amendment would be prejudicial, before taking that action?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The ALJ Erred by Not Notifying the Parties of the Intended Amendment of Citation No. 3 after the Case Had Been Submitted for Decision and by Not Providing Them with an Opportunity to Show That the Amendment Would Be Prejudicial, before Taking That Action.

In his decision, the ALJ amended Citation No. 3 to allege a violation of section 4184(a) [point of operation guarding requirements for machines covered by Group 8] instead of a violation of section 4184(b) [point of operation guarding requirements for machines not covered by Group 8].

Before amending the citation, the ALJ did not give each party "notice of the intended amendment and the opportunity to show that the party will be prejudiced thereby," as required by section 386(b) of the Appeals Board's Rules of Practice and Procedure.

Employer asserts in its petition for reconsideration that by amending the citation after submission without providing the required notice and opportunity to show prejudice, the Appeals Board, through the ALJ, acted in excess of its powers.

Employer's argument has merit. The notice and opportunity requirement set forth in section 386(b) is a direct result of a legislative mandate, not a rule fashioned by the Appeals Board in exercise of statutory rulemaking discretion. In the Occupational Safety and Health Act of 1973, the legislature mandated the content of certain of the Appeals Board's rules. Labor Code section 6603(a) is one of those statutory mandates. It provides, among other things, that the Appeals Board's rules ". . . shall be consistent with . . . Section[s] . . . 11516 . . . of the Government Code," which, in material part, is identical to section 386(b). Therefore, after a case has been submitted for decision the Appeals Board is not empowered to amend a Division action, such as the citation in this case, without providing the parties with the statutorily mandated notice of intent to amend and opportunity to show prejudice.

This was not done in this case. Accordingly, the Board voids the post-submission amendment of Citation No. 3, and restores Citation No. 3 as it was amended by the Division at the hearing to allege a violation of section 4184(b). Because this section does not apply, a violation could not be established.

DECISION AFTER RECONSIDERATION

The ALJ's decision regarding Citation No. 2 is affirmed. A violation is found and a civil penalty of $375 is assessed. Employer's appeal from Citation No. 3 is granted, and no civil penalty is assessed for Citation No. 3.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – August 10, 1999