BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

UNITED STATES PIPE AND FOUNDRY COMPANY, INC.

1295 Whipple Road

Union City, CA 94587

                              Employer

 

 

Docket No.

98-R1D4-1130

 

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 United States Pipe and Foundry Company, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

From October 8, 1997, through February 20, 1998, the Division of Occupational Safety and Health (the Division), through compliance officer Randall Johns, conducted an accident inspection at a place of employment maintained by Employer at 1295 Whipple Road, Union City, California. On March 4, 1998, the Division issued to Employer a citation alleging a repeat/serious violation of section1 3314(a) [de-energizing equipment being serviced], with a proposed civil penalty of $12,500.

Employer filed a timely appeal from the citation.

A hearing was held before administrative law judge of the Board (ALJ) Bref French. Margaret Cloudt, attorney, represented the Division, and Jay W. Luther, attorney, represented Employer. The ALJ issued a decision on December 31, 1998, finding a repeat/serious violation of section1 3314(a) had been established and assessing a civil penalty of $12,500.

On February 4, 1999, Employer filed a petition for reconsideration. On March 2, 1999, the Board granted Employer's petition. On March 10, 1999, the Division filed an answer.

EVIDENCE

Randall Johns testified that Employer operates a foundry manufacturing iron and steel products. Scrap iron is melted in Employer’s cupola,2 which is 30 feet tall. The scrap iron is mixed with coke, which is incompletely burned coal. The scrap iron mix is moved to the top of the cupola by a conveyor device known as a skip.

Johns testified that the skip dumps the scrap iron mix into the cupola through two large doors on top of the cupola and each door weighs 1,000 pounds. The doors are opened and closed by pneumatically powered arms. After the scrap is dumped, the doors close and the scrap iron is heated until it melts. The doors are closed to minimize the escape of smoke, thereby enabling Employer to achieve compliance with Air Quality Management District standards.

Employer modified the cupola two years before this inspection by installing a “charging tube” to blow more air through the cupola. Several months prior to the accident, the first charging tube that had been installed in the cupola had to be repaired. Employer repaired it, but three months later, it fell from its position and melted. Employer ordered a new charging tube specially designed by Employer’s plant engineer.

Employer’s employees installed the new charging tube through the doors at the top of the cupola. The charging tube weighed approximately 650 pounds, and the installation required a total of 10 employees working over two shifts. The cupola doors were disconnected from the pneumatic arms and held open to receive the charging tube by large pins inserted through holes in metal plates welded to the doors and doorframe. The pins were not secured by a nut or any other means. During the second shift, a pin fell out of one of its plates, allowing one of the doors to fall on Elpidio Augustin, an employee. Augustin suffered serious injuries to his eyes.

ISSUE

Was installation of the charging tube a servicing operation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer does not dispute that it was required to mechanically block or lock out the cupola doors if section 3314(a) applied to the work being done on the cupola. 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 . . .

Employer contends that section 3314(a) does not apply to the installation of the charging tube and offers several supporting arguments. First, Employer argues that the ALJ’s finding that the installation of the new charging tube constituted “service” because it was necessary to get the cupola functioning at an acceptable level is not supported by the language of section 3314(a).

Employer argues that “service” as used in section 3314(a) can mean only work intended to prevent damage, and that “repair,” used in section 3314(b), can mean only work to cure damage that has already occurred. Employer concludes that because the installation of the charging tube was not directed at preventing damage to the charging tube or the cupola, it could not have been service work. Moreover, since the cupola could function without the charging tube, Employer argues that its installation was neither service nor repair.

We reject Employer’s arguments. Employer modified the cupola machinery two years before the accident. Replacing a machine part that fails, as did the original charging tube, is in the nature of servicing or repairing the machinery. Servicing of machinery or equipment may have many purposes other than preventing damage to the machinery or equipment being serviced.

Service work may be undertaken to prevent an interruption of production by replacing a part before it fails and production has to be interrupted. Service work may be undertaken to enhance or maintain satisfactory functioning of a machine or piece of equipment, either in terms of quantity or quality of product or to avoid some undesirable side effect.

The ALJ found, and we concur, that the installation of the new charging tube was necessary both to avoid an undesirable side effect, excessive air pollution, and to maintain production. We find that the work of installing the charging tube, undertaken to control pollution and maintain production, comes within the scope of “service” as used in section 3314(a).

Employer raises several related arguments in support of its contention that the Board has previously interpreted section 3314(a) more narrowly.

Employer argues that had the Standards Board meant for section 3314 to apply beyond damage prevention and damage correction, it would have omitted the words “cleaning, servicing, or adjusting” from section 3314(a) and “repair” from section 3314(b). Employer argues that there was no need to specify any requirement beyond the blocking of equipment to prevent inadvertent movement.

Employer also contends that because the charging tube was engineered as a new piece of equipment, and was not a standard piece of machinery, it cannot be subject to section 3314(a). We note that section 3314(a) requires that “equipment,” as well as machinery, be immobilized or blocked during servicing. We find nothing in the terms of section 3314(a) that would preclude its application because the service operation involved consists of the placement of a large, specially designed piece of equipment.

Employer argues that section 3314(a) does not apply because it only addresses routine work to keep a machine or piece of equipment running. Employer contends that the Board’s decision in Sacramento Bag Mfg. Co., OSHAB 91-320, DAR (Dec. 11, 1992) limited section 3314(a) to routine preventive operations done while a machine or piece of equipment is running.

We are not persuaded by Employer’s arguments. There is nothing in section 3314(a) that limits its application to routine or minor service work. Employer’s only support for this argument is to point out that the Board cases it cited involved only routine work. None of the cases held or implied that section 3314(a) was limited to routine servicing.

Similarly, our Sacramento Bag decision does not support Employer’s arguments. Prior to Sacramento Bag we had held in Bendix Forest Products Corp., OSHAB 80-778, DAR (March 31, 1981) that section 3314(a) did not apply unless the machine or equipment was modified by the service work. While in Sacramento Bag we found that section 3314(a) covered work done while the machine or equipment was in the midst of a production run, we did not withdraw the coverage of section 3314(a) from work that our interpretation had previously limited it to-service work that involved the modification of the machine.

Further, we said in Tri-Valley Growers, OSHAB 93-1971, DAR (Feb. 25, 1997) “that it always is dangerous to work around energized machinery.” (Emphasis added.) Exposure to moving machinery and section 3314(a) requires that employees be protected not only during service, but also during adjusting, cleaning, and unjamming, and section 3314(b) requires substantially the same protections for repair and set-up operations.

Both sections seek to address all of the most likely occasions when employees will have their hands or other body parts exposed to dangerous moving machinery. We find that the choice of these words by the Standards Board does not indicate any intention to limit the coverage of section 3314(a) narrowly, but to cover all operations that could expose employees’ hands or other body parts to moving machinery.

Employer argues that the work in this case was more in the nature of new construction or improvement as opposed to servicing of equipment or machinery. Section 3314(a) is a General Industrial Safety Order. Section 3202 provides that the General Industrial Safety Orders “ … apply to all employments and places of employment in California …,” unless the Standards Board has adopted a safety order specific to the industry involved that imposes requirements inconsistent with the cited General Industrial Safety Order. (Sheedy Drayage, OSHAB 84-518, DAR (Dec. 24, 1986).)

Because section 3202 applies General Industrial Safety Orders to all kinds of employment in California, section 3314(a) would apply to work involving servicing of machinery or equipment unless an inconsistent safety order applying to a specific industry is shown to apply. No safety order specific to foundry work or construction with inconsistent requirements has been identified in this case. (Sheedy Drayage, supra.)

Because we find that the work involved here was servicing of machinery or equipment rather than construction, we conclude that section 3314(a) applies. “Equipment” and “machinery” are not defined in the General Industrial Safety Orders. One commonly cited dictionary3 defines equipment in the sense relevant here as “all the fixed assets other than land or buildings of a business enterprise.”

“Machinery” is defined by the same dictionary as “the means or appliances by which something is kept in action or a desired result is obtained.”4 The cupola clearly fits within the definition of machinery, in that it is a means or appliance by which a desired result, the production of molten metal, is obtained, and within the definition of “equipment” in that it is a fixed asset. The same dictionary’s definition of “building” as “a constructed edifice designed to stand more or less permanently covering a space of land, usu[ally] covered by a roof and more or less permanently enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure,” does not apply to the cupola as far as the evidence shows.

We liberally interpreted section 3314(a) In Sacramento Bag, supra, and Tri-Valley Growers, supra, to ensure the protection of employees. There is no support in those decisions for limiting section 3314(a) to the more routine and simple types of service as Employer argues. We interpreted section 3314(a) in those cases to ensure that employees are protected by section 3314(a) whenever employees are exposed to moving equipment or machinery.

The purpose of the California Occupational Safety and Health Act is to provide safe and healthy workplaces for all California working men and women. Our interpretation of section 3314(a) in this case and the cited cases is consistent with the Act’s character as remedial social legislation, which must be liberally construed with particular reference to the history and fundamental purposes of its provisions. (See, e.g., S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, 345; United Air Lines, Inc. v. Occupational Safety and Health Appeals Bd. (1982) 32 Cal.3d 762.)

We find that section 3314(a) applies to the doors and the installation of the charging tube consistent with that principle.

DECISION AFTER RECONSIDERATION

The ALJ's decision is affirmed. Employer’s appeal is denied. A repeat/serious violation of section 3314(a) is established and a civil penalty of $12,500 is assessed.


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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 29, 2001

1 Unless otherwise specified, all references are to sections of Title 8, California Code of Regulations. The Board's decisions after reconsideration are abbreviated "DAR."
2 A cupola is defined by one technical dictionary as “[a] vertical cylindrical furnace for melting gray iron for foundry use; the metal, coke, and flux are put into the top of the furnace onto a bed of coke through which air is blown. . . .” (McGraw-Hill Dictionary of Scientific and Technical Terms, 4th ed., 1989, p. 466).
3 Webster’s New International Dictionary, 1981 ed., p. 768.
4 Id., p. 1354.