BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

WALLACE COMPUTER SERVICES

6811 Walker

La Palma, CA 90623

                              Employer

 

 

Docket No.

98-R3D1-2159

 

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 the Division of Occupational Safety and Health (Division), makes the following decision after reconsideration.

JURISDICTION

On March 31, 1998, a representative of the Division conducted an accident investigation at a place of employment maintained by Employer at 6811 Walker, La Palma, California (the site). On May 12,1998, the Division issued to Wallace Computer Services [Employer] a citation alleging a general violation of section1 3314(b) [failure to stop press], with a proposed civil penalty of $600.

Employer filed a timely appeal contesting the existence of the alleged violation and the reasonableness of both the abatement requirements and the proposed civil penalty.

A hearing was held before an administrative law judge (ALJ) of the Board, in Anaheim, California. James D. Dykes, Safety Consultant, represented Employer. Thurman Johns, Associate Compliance Officer, represented the Division.

On March 8, 1999, the ALJ issued a decision granting Employer's appeal.

On April 9, 1999, the Division filed a petition for reconsideration. Employer filed an answer on May 1, 1999, and the Board granted the Division’s petition on May 26, 1999.

EVIDENCE

Phillip Yow [Yow], Associate Compliance Officer with the Division, conducted an accident investigation at the site on March 31, 1998. The inspection was prompted by a finger laceration to employee, Dan Ruiz [Ruiz]. Yow testified that Ruiz told him that he was engaged in a set-up operation on Employer’s rotary web press2. At the time of the accident, Ruiz said he was moving from one part of the machine to another along a catwalk when he slipped and fell. According to Yow, Ruiz told him he grabbed for a safety bar on the machine, missed, and put his hand into the machine. Yow issued a citation to Employer alleging a violation of section 3314(b) because the injured employee was setting up the machine at the time of the accident.

James D. Dykes [Dykes], Safety Consultant, testified for Employer. In his opinion, the setting up activities going on at the time of the accident had nothing to do with any machine adjustments.

Bill Johnstone [Johnstone], Employer’s Plant Superintendent, testified that as a result of Employer’s accident investigation he concluded that Ruiz slipped off the platform (catwalk) and reached for a safety bar and his hand went into the machine. According to Johnstone, Ruiz was making a visual inspection of the ink train at the time of the accident. Johnstone also concurred that Ruiz was setting up the machine.

ISSUE

Was the injured employee engaged in a “set-up” operation at the time of the accident which requires shutting down the press under section 3314(b) or do the facts indicate that subsection (e) is applicable?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division contends that the action of the employee constitutes set-up of a machine. Section 3314(b) provides, in relevant part:

Prime movers, equipment, or power driven machines equipped with lockable controls or readily adaptable to lockable controls shall be locked out or positively sealed in the “off” position during repair work and setting-up operations. Machines, equipment, or prime movers not equipped with lockable controls or readily adaptable to lockable controls shall be considered in compliance with Section 3314 when positive means are taken, such as de-energizing or disconnecting the equipment from its source of power, or other action which will prevent the equipment, prime mover or machine from inadvertent movement.

The Division contends that the employee exposure occurred during a set-up operation and therefore application of section 3314(b) was appropriate. The Division points to the fact that “(a)t no time did Dykes deny that the accident occurred during a set-up” and to Johnstone’s testimony that the employee was engaged in a set-up operation as proof that section 3314(b) applies.

Section 3314(b) requires that power driven machinery be de-energized while an employee is repairing or performing set-up work on the machinery. The ALJ found no violation of section 3314(b) because observation of a running machine is impossible unless it is energized and, by its own terms, the section cannot apply when an employee is only observing a running machine.

Johnstone testified that it was necessary for the machine to be energized and running during the inking phase and that Ruiz was observing this inking phase when he slipped and came in contact with the moving machinery.

The Division asserts that section 3314(e) envisions a situation where the machinery must remain energized and running in order to complete the set-up process. It argues that Employer failed to establish compliance with section 3314(e).

In relevant part section 3314(e) provides:

On repetitive process machines … where … setting up operations cannot be accomplished with the … energy source disconnected, such operations may be performed under the following conditions: (1) The operating station where the machine may be activated must at all times be under the control of a qualified operator or craftsman. (2) All participants must be in clear view of the operator or in positive communication with each other. (3) All participants must be beyond the reach of machine elements which may move rapidly and present a hazard to them. (4) Where machine configuration or size requires that the operator leave his control station to install tools, and where machine elements which may move rapidly, if activated, exist, such elements must be separately locked out by positive means. (5) During repair procedures where mechanical components are being adjusted or replaced, the machine shall be de-energized or disconnected from its power source. NOTE: “Participant” shall mean any other person(s) engaged in the repair, adjustment, testing, or setting up operation in addition to the qualified operator or craftsman having control of the machine operating station.

The Division asserts, and we concur, that section 3314(e) is permissive. The use of the word “may” in a safety order establishes the standard as permissive rather than mandatory. Kaiser Steel Corporation, OSHAB 75-1135 Decision After Reconsideration (June 21, 1982).

Employer could have excepted itself from the requirements of section 3314(b) if it had complied with the provisions of subsection (e). Because the language “… with the … energy source disconnected, such operations may be performed under the following conditions: …” contemplates set-up when a machine is running under certain circumstances.

We find section 3314(b] addresses occasions where employees have their hands or other body parts exposed to dangerous moving machinery. In order to set-up and not de-energize the machine, Employer must comply with the provisions of section 3314(e). When the exceptions of subsection (e) are not met, section 3314(b) applies.

Here, there was no compliance with subsections (1) and (3) of section 3314(e). Subsection (1) requires the operating station be under the control of a qualified operator at all times. There is no evidence that any one was at the controls when Ruiz slipped and fell. Subsection (3) requires that all persons engaged in the set-up be beyond the reach of the machine elements. Ruiz was not beyond the reach of the machine elements as evidenced by his hand contacting the rollers of the machine when he fell.

The ALJ relied upon Harwood Products, OSHAB 91-935, Decision After Reconsideration (June 10, 1997) in concluding that section 3314(b) cannot apply when an employee is only observing a running machine. Harwood is distinguishable from the facts of this case. In Harwood, an employee was found dead after being drawn into a rotating drive shaft. The employee’s job was to adjust, clean, repair, and service machinery. Most of the employee’s time on the walkway was spent observing saw operations to determine what maintenance or repair work might be required. In Harwood, supra, the Board declared that “(b)ecause observation of a running machine is impossible if it is de-energized, by its own terms, section 3314(b) cannot apply when an employee is only observing a running machine.” [Emphasis added].

The central issue in Harwood, whether the employee was servicing or repairing or whether he was merely observing, was a question of fact. The Board, in deciding Harwood, based its findings on a factual determination that it was more consistent than not that the employee was observing rather than servicing or repairing the equipment at the time he was drawn into the rotating machinery.

In the instant case, there is an admission by Employer, and the Board finds, that the employee was engaged in a set-up. Also, Ruiz told Yow he was engaged in a setting up operation. There was testimony by Dykes and Johnstone that a set-up operation was being performed.

Set-up becomes important under the facts of this case because set-up must occur in order to trigger the requirements of section 3314(b) and (e). We hold that “set-up”3 is the preparation of a facility or a machine for a specific work method, activity, or process. “Preparation”4 is defined as the action or process of making some thing ready for use or service. “Action”5 is the bringing about of an alteration by force and “process”6 is a progressive forward movement, the action of continuously going through each of a succession of acts.

We hold that under these facts “inking”7 comes within the definition of set-up. On a repetitive process machine, such as the one at issue here, inking is a preparation for the specific work for which the machine was designed. Under these facts we find that Harwood is not controlling. Therefore, we conclude that Ruiz was engaged in a set-up operation when the accident occurred. Consequently, we find a violation of section 3314(b) was established.

DECISION AFTER RECONSIDERATION

The Board reverses the ALJ’s decision, finds a general violation of section 3314(b) was established, and assesses a civil penalty of $600.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON July 9, 2001


1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Rotary press [graphic] A press utilizing two cylinders, one of which supports the paper while the other prints on it; large rotary presses are web-fed and accept continuous strips of paper from large rolls; this web of paper is not cut or trimmed until after it is printed. McGraw-Hill Dictionary of Scientific and Technical Terms, 4th ed. (1989) p.1640.
3 McGraw-Hill Dictionary of Scientific and Technical Terms, 4th ed. (1989) p. 1710.
4 Webster’s Third International Dictionary, (1981) p. 1790.
5 Id. p.21.
6 Id. p.1808.
7 Neither Employer’s witnesses nor the Division defined “set-up” or what acts constitute “set-up.” There is no evidence in the record as to what constitutes “set-up.”