BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

RIALTO CONCRETE PRODUCTS, INC.
P.O. Box 398
Rialto, CA 92377

 

                              Employer

 

 

Docket No.

96-R3D3-1217

 

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 matter by Rialto Concrete Products, Inc. [Employer], makes the following decision after reconsideration.

JURISDICTION

Commencing on December 28, 1995, and continuing through April 17, 1996, 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 2250 West Lowell Street, Rialto, California (the site). On April 17, 1996, the Division issued a citation to Employer alleging a serious, accident-related violation of section1 4187(a) [in-running rolls not protected], with a proposed civil penalty of $4,500.

Employer filed a timely appeal contesting the existence and classification of the violation and the reasonableness of both the abatement requirements and the proposed civil penalty. Employer also raised a number of affirmative defenses.

A hearing was held before Jack L. Hesson, Administrative Law Judge (ALJ), in San Bernardino, California. Robert Peterson, Attorney, represented Employer. Albert Cardenas, Staff Counsel, represented the Division.

At the hearing, the Division moved to amend the proposed civil penalty to $1,250 because it lacked a witness to establish that the violation was accident related. The motion was granted.

On September 1, 2000, the ALJ issued a decision denying Employer's appeal and assessing a civil penalty of $1,250.

On October 5, 2000, Employer filed a petition for reconsideration. The Division filed an answer. The Board granted Employer’s petition on November 9, 2000.

EVIDENCE

Ramesh Gupta (Gupta), compliance officer for the Division, conducted an accident investigation at the site. He interviewed employees and Jim Nelson (Nelson), Employer’s Plant Manager. Based on his interviews, Gupta determined that on October 21, 1995, an employee sustained a crushing injury to his left foot.

The accident occurred at the input side of a rolling machine where wire mesh is rolled into a cylindrical shape for later use as reinforcement in concrete pipe. Wire mesh is fed through a wall opening to the wire room where the rolling machine is located. The mesh goes into the rollers at the feed end and a machine operator stands on the other side of the rollers and cuts the mesh after it is rolled into a cylinder.

At the time of the accident, an employee was standing on and guiding wire mesh with his feet before it entered the rollers of the machine. The employees’ foot and ankle were pulled into the rollers with the mesh.

Gupta testified that there was no guard on the back or input side of the rollers. Gupta testified that exposure to the unguarded rollers could result in serious crushing injuries. He stated that there were no control devices on the input side of the machine where the employee was injured. The machine had a stop bar at the time of the inspection located on the output (front) side of the machine. There was also a constant contact device by which the operator on the output (front) side of the roller controlled the machine.

Nelson testified that the wire mesh moves at 78 feet per minute so employees were to stand on the floor and guide the mesh by hand if necessary. He stated he had never observed employees standing on the wire mesh.

ISSUES

1. Did the Division establish a serious violation of section 4187(a) for Employer’s failure to protect in-running side of rolls of a rolling machine?

2. Did the Employer comply with the alternative methods of protection provided in section 4187(b) or (c)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer argues that the ALJ exceeded his authority, that the facts do not justify the findings, and the findings to not support the decision. Specifically, Employer maintains that the ALJ erroneously affirmed the citation for violation of section 4187(a) because 1) the section does not apply to employees who are not operating the machine; and 2) Employer otherwise complied with the alternative protections provided in subsections (b) and/or (c) of the safety order.

1. The Division Established a Violation of Section 4187(a) and the Violation was Properly Classified as Serious.

Section 4187(a) is contained in Article 54 - Scope and General Definitions, of Group 8 - Points of Operation and Other Hazardous Parts of Machinery of the General Safety Orders. Section 4184 generally requires guarding at the point of operation for machines having a “…grinding, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action, in which an employee comes within the danger zone…” as further specified in the orders.

Section 4187 provides a guarding requirement for machines with rolls:

(a) The in-running side of the rolls shall be protected with a fixed or self-adjusting barrier so arranged that the material can be fed to the rolls without permitting the fingers of the operator to be caught between the rolls or between the guard and the rolls, or

(b) The control device for the rolls shall be of the constant contact type and shall be so located as to prevent the employees from contacting the danger zone, or

(c) The prime mover shall be equipped with an effective brake and there shall be installed across the front of the rolls at approximately knee height a control bar, lever or other device which when actuated will stop the motor and apply the brake.

NOTE: (1) The intent of this section is primarily to achieve point of operation guarding as required by Subsection (a) above. Where, because of work procedures or other valid reasons, the requirements of Subsection (a) cannot be achieved, the requirements of Subsection (b) shall control. Where neither the requirements of (a) or (b) can be achieved, compliance with Subsection (c) shall then be mandatory. (2) In those instances where there are other orders covering specific rolls, those orders shall prevail over those contained in this section
EXCEPTION: Rolls which do not expose any employees to a point of operation hazard.

Employer asserts that the express language of section 4187(a) limits its application to the machine operator and that the safety order is intended to protect the operator’s fingers from being caught in the rolls. Employer maintains that the injured employee who injured his foot while apparently using it to direct wire into the back (feed) side of the machine was not the operator of the machine. Although Employer conceded that the injured employee may have assisted the operator to some degree by feeding wire mesh toward the rolls, he was not an operator of the machine. Employer summarily proffers a self-created definition of “operator” which is apparently based upon one’s job position, and further, presumes that there can only be one operator of the machine.

We find that Employer’s restrictive interpretation of the coverage of section 4187(a) is unsupportable based upon our reading of the entire section, the applicable definitions, and provisions regarding the scope of the guarding requirements for points of operation.

For the Point of Operation orders, “operator” is not specifically defined. In determining the meaning of a word, the word cannot be viewed in isolation but must be viewed in the context of the surrounding words as well. (Teichert Construction, Cal/OSHA App. 98-2512, Decision After Reconsideration (March 12, 2002))

The coverage language for these orders generally requires guarding for machines having the listed actions (e.g. grinding, shearing, rolling, etc.) “in which an employee comes within the danger zone.”2 (Section 4184(a)) Also, the Standards Board noted the following “exception” following the text of section 4187: “[r]olls which do not expose any employees to a point of operation hazard” (italics added). These provisions manifest a broader intent to cover an employee exposed to a point of operation hazard.

The “Note” following the text of section 4187 states “[t]he intent of this section is primarily to achieve point of operation guarding as required by Subsection (a) above.” “Point of operation” is specifically defined as “[t]hat part of a machine which performs an operation on the stock or material and/or that point or location where stock or material is fed to the machine.3 A machine may have more than one point of operation.” (Section 4188(a); italics added) 4

The plain meaning of the word “operator” is “a person who operates; … a) a person who effects something; agent, b) a person whose work is operating a machine…” (Webster’s New World College Dictionary, Fourth Ed., 2001) The word “operate” means “to be in action so as to produce an effect; act; function; work.” (Id.)5

We have previously held that an employee injured while operating a machine with unguarded rolls was an “operator” for purposes of section 4187(a) even though he was not an “authorized” operator. (Metalclad Insulation Corp., Cal/OSHA App. 96-130, Decision After Reconsideration (Oct. 4, 2000) When viewed in light of the above relevant provisions of the Point of Operation Orders and the ordinary meaning of the word, a reasonable interpretation of “operator” is any employee who is effecting a process in the operation of a machine (or part of a machine) at a point of operation.

Here, we agree with the ALJ and the Division that the point of operation was the in-running side of the machine where wire was fed on rollers going into the machine under the express language of section 4187(a). This finding is supported by the testimony of Gupta based upon his observations of the machine and interviews, the testimony of Nelson who acknowledged that employees would have to hand feed the material at the input end of the machine, and the picture exhibits of the wire rolling machine. Since “feeding” is a process of placing or removing material within or from a point of operation (Section 4188(a)), we find that any employee that performs the process of feeding material at the in-running side of a rolling machine is an “operator” of the machine at the point of operation within the meaning of section 4187(a).

In this case, the ALJ found that the injured employee was feeding material (wire) into the in-running side of the rolling machine and that he injured his foot after it was caught between rolls. The ALJ further found that there was no protection for the hands of the employees on that side of the machine. We find no flaw in determining a violation based upon the fact that the employee’s foot was injured while he used it to guide wire onto the rolls. If there is insufficient guard protection for rolls permitting a foot to get caught in the rolls, a hand is also unprotected from the rolls. The lack of the minimum guarding required under the safety order for feeding material which exposes the operator (as defined above) to the point of operation hazard is sufficient to establish a violation.6 Since the exposure here was based upon injury to an employee’s foot rather than a hand, it is a distinction without significance in view of the hazard and scope of coverage provisions which govern the applicability of the safety order.

Employer states that given the configuration of the machine in question, and the requirement in the section making it applicable only to operators of the machine, the exposure to an employee on the other side (in-running side) of the machine was not anticipated under section 4184. On the contrary, the in-running side of the machine in question rendered that side a point of operation which was the basis for the citation—Employer was not cited for failing to guard the out-running side where the operator at the controls was located. Section 4187(a) not only contemplates but expressly addresses the condition in this case. We find that the section is sufficiently clear so as to apprise employers of the requirement and the conditions to which it applies.

Under the express language of section 4187(a), applying the plain meaning of the word “operator” and special definitions as appropriate, and in view of the context of the guarding requirement when read in conjunction with other relevant provisions, we hold that the ALJ did not act beyond his authority in determining that Employer violated section 4187(a) based upon established employee exposure at the point of operation described in the safety order.

Employer neither raised nor addressed in its petition the classification of the violation as serious nor the penalty calculation and those issues are deemed waived.7

2. Employer Failed to Establish that it Complied with the Alternative Methods of Protection Provided in Section 4187(b) or (c).

Employer asserts that the evidence established that an effective control device of the constant contact type permitted under subsection (b) was used to operate the machine and such device was functional on the day of the accident. Also, Employer asserts that the evidence established that it equipped the roll machine with a control bar at approximately knee height which stops the machine’s motor and applies a brake when activated as permitted under subsection (c). Employer maintains that because it was not proven that guarding of the roll machine could be achieved pursuant to subsection (a), it was allowed to comply with subsections (b) or (c).

The protection devices to which Employer refers were located at the front (and not the “in-running side”) of the roller machine. Thus Employer’s fundamental position that subsection (a) only applied to the operator at the front end (the out-running side) of the machine is further carried into Employer’s additional arguments that it otherwise complied with the alternative methods of protection provided in subsections (b) and (c) of section 4187.8

It is the hazard at the point of operation that the safety order is designed to protect (here, the in-running side of rolls where material is fed into the machine) which is determinative of the analysis. We found above that the point of operation hazard was the in-running side of the rolling machine where the injured employee was guiding wire mesh into the roll machine. As an operator of the machine (i.e., an employee who fed material to the in-running side of the roll machine), the injured employee was expressly intended to be protected under the requirements of subsection (a). Thus, Employer’s reference to its conduct regarding safety measures it had in place for the other (frontside) of the machine is simply irrelevant to the issue in this case.

Additionally, subsection (a) establishes the primary requirement for guarding the in-running rolls for which Employer was cited. The alternative methods provided in subsections (b) and (c) may only be used when the requirements under (a) cannot be achieved. (Section 4187, Note) As exceptions to the primary requirement, Employer had the burden to establish, first, that compliance with subsection (a) could not be accomplished because of work procedures or other valid reasons, and secondly, that it complied with the alternative protection requirements. (See, Chicago Bridge & Iron Company, Cal/OSHA App. 76-1082, Decision After Reconsideration (Feb. 4, 1980) [employer has burden of establishing alternative methods as affirmative defense to primary requirement]; Barnard Engineering Co, Inc., Cal/OSHA App. 81-0241, Decision After Reconsideration (May 28, 1982) [party claiming exemption from general requirement has burden of proving that it comes within exemption].)

Employer failed to establish that it was unable to comply with the requirements of subsection (a) based upon work procedures or some other valid reason, and also failed to establish that it complied with either subsection (b) or (c) with respect to the point of operation at the in-running side of the rolling machine.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision denying Employer’s appeal and assessing a civil penalty of $1,250.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 30, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 “Danger zone” is “[a]ny place in or about a machine or piece of equipment where an employee may be struck by or caught between moving parts, caught between moving and stationary objects or parts of the machine, caught between the material and a moving part of the machine, burned by hot surfaces or exposed to electric shock. (Section 4188(a); italics added)
3 “Feeding” is specifically defined as “[t]he process of placing or removing material within or from the point of operation. (Section 4188(a))
4 Under this definition, we find that the in-running side of the rolling machine where materials were fed into the machine was a point of operation.
5 In interpreting statutory (or regulatory) language, in the absence of a special definition, words should be given their ordinary meaning and dictionary definitions are often used to ascertain the ordinary meaning of words. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 16)
6 Also, we have held that an employer’s procedures and rules for operating the machine do not constitute a defense to an unguarded opening that permits fingers of an operator to be caught between rolls. (Metalclad Insulation Corp., supra.)
7 Section 391 provides that any objection or issue not raised in the petition is deemed waived by the petitioner.
8 Ironically, Employer concedes that compliance with subsections (b) and (c) (as to the operator of the machine located in the front) would provide no protection to any employee working on the backside (the in-running side) of the machine. It then reasons that because the safety order did not anticipate protecting employees working on the backside of the roll machine, it would be illogical and absurd to apply the safety order to such conditions. On the contrary, in view of the requirements of section 4187(a), it would be absurd to disregard the exposed employee performing an operating process of feeding material into the in-running side of the rolling machine without any guarding to protect that operator.