BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

ERNEST & JULIO GALLO SONOMA

3387 Dry Creek Road

Healdsburg, CA 95448

                              Employer

 

 

Docket No.

98-R1D5-1424

 

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 Ernest & Julio Gallo Sonoma (Employer) makes the following decision after reconsideration.

JURISDICTION

On April 14, 1998, the Division of Occupational Safety and Health (the Division), through Compliance Officer Jimmie Jones, conducted an accident investigation at a place of employment maintained by Employer at 3387 Dry Creek Road, Healdsburg, California (the site).

On April 27, 1998, the Division issued a citation to Employer alleging a general violation of section 4186(b) [adjustment and maintenance of point of operation guards] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 A $600 civil penalty was proposed.

Employer filed a timely appeal contesting the existence and classification of the alleged violation and the reasonableness of both the abatement requirements and the civil penalty, and raising other defenses. At the hearing, Employer’s motion to confine its appeal to the existence of the violation was granted.

The matter was heard before Dennis M. Sullivan, Administrative Law Judge of the Board (ALJ) on April 9, 1999. Employer was represented by Robert D. Peterson, Attorney, and the Division was represented by Katherine Wolff, Staff Counsel. On May 4, 1999, the ALJ issued a decision granting Employer's appeal.

The Division filed a timely petition for reconsideration on May 27, 1999, Employer filed its answer on June 22, 1999, and the Board granted review of the Division's petition by order dated July 14, 1999.

EVIDENCE

As part of its bottling operation, Employer utilizes a machine known as a “sparger” to cleanse empty bottles with nitrogen before they are filled with wine. A conveyor carries the bottles to the sparger, which is on a carousel that revolves around a vertical center column or cylinder containing pressurized nitrogen. Upon reaching the entry point, the bottles are gripped by devices on the carousel. As they revolve, a plastic cam on each gripping device depresses a button located above the jet on the central cylinder. The jet then opens momentarily, spraying nitrogen gas into the bottle.

Employees are protected from inadvertent contact with moving points in and around the sparger by a clear plastic shield with two access doors interlocked to the sparger’s power source so that it can not operate while they are open.

A day or so before the accident, a problem developed that caused the doors to swing open. To prevent unnecessary shutdowns in the bottling line, the interlock was disabled so that the sparger could continue to operate even though the access doors were open or ajar.

On the day of the accident, the injured employee, whose job it was to ensure that the line ran smoothly, noticed that the gripping devices were not releasing the bottles as they exited the sparger because the buttons on the center cylinder, which were supposed to release the bottles as they were depressed by the cam on the gripper holding the bottle, were sticking.

To correct the problem, he applied silicone lubricant to the buttons and watched as the operator re-started the line. When he noticed lubricant running down from the buttons to the bottles, he opened the access doors and reached in to wipe away the excess. Because the interlock had been disabled, the carousel continued to revolve. The rag he was using caught on the carousel and dragged his hand into the pinch point created by the passage of one of the cams on the carousel over one of the buttons on the cylinder, crushing the tip of his middle finger.

ISSUE

Did the disabling of the interlock on the doors to the sparger expose the injured employee to an unguarded point of operation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERTION

The safety order under which Employer was cited-section 4186(b)-applies only to point of operation guards.2 Therefore, to establish a violation the Division was obligated to prove that the interlocking guard on the access doors served to protect employees against inadvertent contact with one or more points of operation, as that term is defined in section 4188(a); i.e., “that 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 (Emphasis supplied.)

In its petition for reconsideration the Division argues that because “the purging done by the sparger is an operation performed directly on the material-the bottles to be filled with Gallo wine” (petition, p.3), the disabled interlock on the doors was a point of operation guard.

As the ALJ correctly pointed out, the safety order applies only to those parts of a machine that perform an operation on the bottles, not to the entire machine. Therefore, the Division’s focus on the overall function of the sparger is misplaced. The question is whether the injured employee was exposed to one or more parts of the sparger, which either performed an operation on the stock or material or was located at its entry point. As we explained in Douglas Aircraft Company, OSHAB 78-1568, Decision After Reconsideration (June 29, 1984):

To hold otherwise, as the Division asserts, would result in every pinch point within the framework of [a machine] being construed as a point of operation-a result inconsistent with the clear meaning of the point of operation. Furthermore, the language of section 4188(a) is clear and does not permit the interpretation urged by the Division that would extend the definition to parts other than where the material is fed into the machine or where an operation is directly performed on the material. (Emphasis supplied.)

Here, the part of the sparger that caused the accident was the pinch point created by the passage of one of the cams on the carousel over the buttons on the cylinder. That pinch point is located several inches above the jet that performs the operation of spraying nitrogen into the bottles, and it is not an entry point to the sparger. As such, it is analogous to the driving mechanism located above the ram of the punch press in Douglas Aircraft and the exposed portion of the blade above the upper guide of the band saw in Johnson Aluminum Foundry, OSHAB 78-593, Decision After Reconsideration (Aug. 28, 1979). In those cases we held that the points in question were too remote from either the operation or entry point to constitute points of operation. (See also Truecast Concrete Products, OSHAB 80-394, Decision After Reconsideration (Nov. 21, 1984).)4

Since the Division focused entirely on the pinch point above the jet and offered no evidence of other parts of the sparger where an employee would be directly exposed to a grinding, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action at a point where bottles entered the sparger or were sprayed with nitrogen, section 4186(b) is inapplicable, and Employer's appeal was properly granted.5

DECISION AFTER RECONSIDERATION

The Decision of the ALJ dated May 4, 1999 is affirmed and Employer’s appeal is granted.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 19, 2001

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Section 4186(b) provides: “All point of operation guards shall be properly set up, adjusted and maintained in safe and efficient working condition in conformance with Figure G-8 and Table G-3 or other guard configurations which will prevent the operator’s hand from entering the point of operation.”
3 The scope and reach of section 4186(b) are further limited by section 4184(a) and (b) which requires (1) that the hazard guarded against involve a grinding, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action and (2) that the machine in question be specified in Group 8 or present a similar hazard.
4 Central to a violation of section 4186(b) is establishing the specific “point of operation” as that phrase is defined in section 4188(a) which is a factual matter to be established by the evidence and largely based upon the type of machine in issue. Section 4188(a) provides that a machine may have more than one point of operation. However, it was not established that the pinch point created by passage of one of the cams on the carousel located above the jet was a “point of operation” for which the plastic guard protected against entry of the operator’s hand. Evidence before the Board consisted of photographs of only portions of the sparger machine and do not show at all the subject plastic guard with two access doors. Also, the testimony did not establish that the pinch point area was “[t]hat part of the 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” (under the controlling definition of “point of operation”) such as to render coverage under section 4186(b).
5 We further note that the Division chose to treat the situation as a guarding rather than a lockout violation under section 3314.