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

In the Matter of the Appeal of:

TRI-VALLEY GROWERS
P. O. Box 576549
Modesto, CA 95357-6549

                                    Employer

  Docket No. 95-R2D2-4598

 

         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 (Division), makes the following decision after reconsideration.

JURISDICTION

On October 3, 1995, the Division conducted an accident inspection at a place of employment maintained by Tri-Valley Growers (Employer) at its Plant 7 located at 2801 Finch Road, Modesto, California. On December 8, 1995, the Division issued to Employer a citation alleging a general violation of section 3314(b) [lock-out/tag-out of equipment] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations and proposing a civil penalty of $850.

Employer filed a timely appeal. On July 23, 1996, after a hearing, an administrative law judge (ALJ) of the Board issued a decision granting Employer’s appeal and setting aside the proposed civil penalty.

On August 26, 1996, the Division filed a petition for reconsideration. On September 19, 1996, the Board granted the petition. Employer filed an answer on September 30, 1996.

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. 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 5 of the decision of the ALJ.

Employer is engaged in the canning and packing of food products at Plant 7. On September 3, 1995, Robert Sevier suffered the amputation of his right thumb while attempting to re-thread the drive chain on a pallet elevator that had not been locked out in the "off" position.

The Division cited Employer for violating section 3314(b). It classified the violation as general because it determined that Employer neither knew nor, in the exercise of reasonable diligence, could have known of the violative act. In the decision granting the appeal, the ALJ found that Sevier’s failure to lock out the equipment was an independent employee action for which Employer should not be held responsible.

In its petition for reconsideration, the Division contends that Employer failed to sustain elements 3 and 5 of the independent employee action defense.

ISSUES

1. Did Employer effectively enforce its safety program at the time of the accident?

2.  Did the injured employee know that Employer’s Energy Control Procedure required that he place his own lock on the equipment he was repairing?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. At the Time of the Accident, Employer’s Safety Program Was Being Effectively Enforced.

Beginning in May 1995—four months before the accident—Employer conducted a series of training sessions, attended by Sevier, in which its lock-out/tag-out policy was discussed and explained. The training culminated in a session on June 6th featuring a slide presentation on Employer’s Energy Control Procedures. The following day, Sevier was given a copy of the written procedure along with two locks, two multiple hold lockout hasps, and lockout tags.

Sevier is a journeyman maintenance mechanic with 17 years of experience. For him to re-thread the drive chain was a simple matter that he estimated would take only a few seconds. Given his experience and the simplicity of the task, there was no need for direct supervision. (See City of Los Angeles Department of Water & Power, OSHAB 86-349, Decision After Reconsideration (Apr. 4, 1988) p. 5; Lockheed-California Company, OSHAB 82-1212, Decision After Reconsideration (May 15, 1985).)

The only evidence cited by the Division in support of its contention that the program was not effectively enforced was production manager Bracco’s testimony that he had not personally reviewed the written energy control procedure during the course of the training or in preparation for the meeting, subsequent to the accident, in which Sevier was given a written warning.

What Bracco actually said was that he had not engaged in an item by item review of the procedure and therefore could not pinpoint the location of the specific paragraphs which were at issue. He fully understood the basic requirements of the program—specifically, that whenever an employee performs repair or maintenance work on power driven equipment, that employee must see to it that his or her own lock is placed on the equipment regardless of whether other employees may also have done so. Therefore, the evidence is compelling that Employer enforced its safety program.

We therefore affirm the ALJ’s determination that the safety program was being effectively enforced.

2. The Injured Employee Knew That Employer’s Energy Control Procedure Required That He Place His Own Lock on the Equipment He Was Repairing.

When Sevier arrived to start the graveyard shift, a mechanic’s helper, Geronimo, told him that a pallet elevator was out of service because the drive chain had come off its sprockets. Sevier and Geronimo, the helper, went over to speak with the swing shift employees who had been unable to re-thread the chain. Because they spoke only Spanish and Sevier speaks only English, Sevier had the helper, who is bilingual, ask if they had locked the equipment out. After speaking with them, Geronimo assured Sevier that they had.

Sevier began re-threading the sprockets. As he was doing so, one of the workers pressed the start button. The chain and sprocket drive began to move, and his right thumb was amputated.

Employer’s written energy control procedure makes it abundantly clear that before performing repairs or maintenance to power driven equipment, every employee has a personal, non-delegable obligation to install his or her own lock on the equipment, even if it means affixing multiple locks.

Sevier had recently attended training sessions on the lock-out/tag-out program and had been given a copy of the procedure. He testified that it had always been his practice to lock out equipment before performing maintenance and repairs.

He also testified that at the time he was disciplined for his actions, he was told that he should never assume that equipment is locked out, but should "make sure you do it yourself." He was then asked what his understanding was at the time of the accident. He replied, "Same thing, but it just wasn’t quite as strong."

Based on that testimony and based on the training he had received, his acknowledged receipt of the written procedure and his prior practice, the ALJ was fully entitled to conclude Sevier knew that Employer’s energy control procedure required that he place his own lock on the pallet elevator he was repairing.

DECISION AFTER RECONSIDERATION

The decision of the ALJ, dated July 23, 1996, is affirmed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – September 8, 1999