OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
|In the Matter of the Appeal of:
|Docket No. 95-R2D2-4431
The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by the Division of Occupational Safety and Health (Division), makes the following decision after reconsideration.
On August 4, 1995, the Division conducted an accident inspection at a place of employment maintained by J.R. Wood, Inc. (Employer) at 7916 West Belleve Road, Atwater, California. On October 20, 1995, the Division issued to Employer Citation No. 2 alleging a serious, accidentrelated violation of section 3314(a) [de-energizing equipment being cleaned, serviced or repaired] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division also proposed a civil penalty of $5,000.
Employer filed a timely appeal. On September 5, 1996, after a hearing, an administrative law judge (ALJ) of the Board issued a decision granting Employers appeal from Citation No. 2.
On October 10, 1996, the Division filed a petition for reconsideration. On November 5, 1996, the Board granted the petition. Employer filed an answer on November 14, 1996.
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. 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 10 of the decision of the ALJ.
On June 26, 1995, Isidro Chavez right middle finger was amputated at the second joint when he inserted it in the drainpipe of a screw auger that was energized and running.
In the decision granting the appeal, the ALJ found that section 3314(a) did not apply to the facts as established.
Does section 3314(a) apply when Employer had no reason to believe that the activity in which the injured employee was engaged exposed him to a risk of injury?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
Section 3314(a) in relevant part provides:
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.
The Division urges that section 3314(a) be read literally. Under such a reading, only two conditions need be met to trigger the requirement that machinery or equipment be de-energized or, if that is not feasible, that extension tools or other means be utilized. First, there must be "machinery or equipment capable of movement," and, second, the employee or employees must be engaged in "cleaning, servicing or adjusting operations." Since both conditions were met, the Division would have the Board find a violation.
The Divisions interpretation is too narrow. It fails to take into account the context in which subsection (a) appears. An examination of the entire safety order makes it clear that section 3314 is premised on the obligation of an employer to identify the hazards which arise when prime movers, machinery and equipment are being cleaned, serviced, repaired, or adjusted; and, based on the hazards identified, to formulate and effectuate procedures to minimize the risk of employee exposure to the hazards occasioned by those activities. That is why subsection (f) calls for the development and utilization of an "energy control procedure" for the "control of hazardous energy." Subsections (a), (b), (c), (d) and (e) all contemplate that employers will invoke those procedures before their employees are exposed to hazardous energy. Any analysis of section 3314(a) must therefore take into consideration the ability of an employer to anticipate the prospective hazards posed when machinery or equipment is being cleaned, serviced, repaired or adjusted.
In Louisiana-Pacific, OSHAB 85-449, Decision After Reconsideration (Sept. 1, 1987), the Board acknowledged that factor and held that there could be no violation of section 3314(d) unless "a reasonably prudent employer would have known of the exposure of the employee to the potential hazard." Since the facts of that case "demonstrate[d] no such foreseeable exposure to inherent hazards" the Board held that the circumstances leading to the injury were "beyond the intended scope of section 3314(d)." (Id. p. 3.) The Board finds that reasoning equally applicable to section 3314(a).
Here, production supervisor Isidro Chavez had the upper portion of his finger amputated when he inserted it into a short drain pipe that had been welded over a drain opening at the bottom of a trough enclosing a screw auger used to move crushed strawberries along a production line.
In reaching the decision, the ALJ had to resolve two conflicts in the evidence. The first was whether a plug or a cap was used to seal the drainpipe. Chavez testified that a plug was required, while Employers witnesses uniformly testified that it was a cap. This difference is critical because, if a cap were needed, an employee would have no reason to insert his finger into the pipe; whereas, if a plug were used, he would. The ALJ accepted the testimony of Employers witnesses and found that because "an interior threaded cap that screwed on over the drain flange was used to open and close the drain," there was no reason for an employee to insert his finger into the pipe.
The second conflict concerned the activity Chavez was performing at the time of his injury. He testified that he was checking the line to ensure the drains were closed so that, when production resumed, the crushed strawberries would not escape the trough. Chavez purpose in inserting his finger was to determine whether a plug, which he mistakenly believed was used to seal the drain, had been screwed up into the pipe. His supervisor, on the other hand, testified that water was being run through the trough to flush it out and that Chavez inserted his finger to unclog the drain. In response, Chavez testified that the trough was not being flushed at the time and so he had no reason to believe the drain was clogged. The ALJ accepted Chavez account and found that Chavez believed that he was closing the drain so that the machine could resume processing strawberries, rather than unclogging the drain.
The Board has consistently followed the holding of Lamb v. Workmens Compensation Appeals Bd. (1974) 11 Cal.3d 274, 281, that an ALJs findings of fact supported by solid, credible evidence, are to be accorded great weight and should be rejected only on the basis of contrary evidence of considerable substantiality. (See e.g. Harwood Products, OSHAB 91-935, Decision After Reconsideration (June 10, 1997).) The ALJs findings satisfy that criterion.
Given the ALJs findings on these two factual issues, it cannot be said that "a reasonably prudent employer" would have any reason to believe that an employee engaged in capping the drain pipe would be exposed to the screw auger.As the ALJ pointed out, under Lights of America, OSHAB 89-400, Decision After Reconsideration (Feb. 19, 1991), whatever must be done to restore machinery to operating condition after cleaning is part of the "cleaning" operation within the meaning of section 3314(a). Chavez intended to perform a section 3314(a) "cleaning" operation by inserting his finger into the drainpipe to see that an internally fitting plug had been put in place so the sealer would not lose the product through an open drainpipe when put back in operation. Because the drainpipe was sealed with a cap rather than a plug, Employer could not reasonably have anticipated that an employee would insert his or her finger into the drainpipe as a step in restarting the sealer.
The Board therefore concludes that the circumstances here presented were beyond the intended scope of section 3314(a).
The Board cautions, however, that the outcome would likely have been different if Chavez had been checking to see if the drain was clogged or if a plug, rather than a cap, were required to close off the drain pipe. The Board also notes that no appeal was taken from the ALJs determination that Employer failed to provide Chavez with the instruction and training that would have disabused him of the mistaken belief that led to his accident.
DECISION AFTER RECONSIDERATION
The decision of the ALJ, dated September 5, 1996, granting Employers appeal from Citation No. 2 and setting aside the $5,000 proposed civil penalty, is affirmed.
JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA October 14, 1999