BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

GAYLORD CONTAINER CORPORATION

P.O. Box 10

Antioch CA, 94509-0901

                              Employer

 

 

Docket No.

99-R2D2-095

 

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 Gaylord Container Corporation, (Employer) makes the following decision after reconsideration.

JURISDICTION

Between December 1, 1998 and January 7, 1999, 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 2301 West Wilbur Avenue, Antioch, California (the site). On January 7, 1999, the Division issued a citation to Employer alleging a serious violation of section1 4423(g) [guarding drum nip points on paper machines], with a proposed civil penalty of $5,000.

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

A hearing was held before James Wolpman, Administrative Law Judge (ALJ) of the Board, in Concord, California. Lloyd W. Aubry, Jr., attorney, represented Employer. Christopher P. Grossgart, staff counsel, represented the Division.

On April 11, 2000, the ALJ issued a decision denying Employer's appeal but reducing the proposed civil penalty to $1,500.

On May 15, 2000, Employer filed a petition for reconsideration. The Division filed an answer on June 7, 2000. The Board granted Employer’s petition on June 30, 2000.

EVIDENCE

Employer is a corporation engaged in the manufacture of paper and paper products. It was cited for a serious and accident-related violation of section 4423(g) because Lance Webb [Webb], one of Employer’s employees, caught his foot in the nip point of one of the paper winder machines. Webb was injured on July 9, 1998 when he stepped up onto the winder table or platform that runs along the edge of the machine in order to clear away paper debris, or “broke”, after a paper break occurred during a production run.

In normal production, paper moves through the winder at speeds of up to 7,200 feet per minute and a wire mesh gate (the “nip barrier”) running the length of the platform is lowered to prevent contact with the nip points. There are also floor pads in front of the platform that are equipped with an interlock to halt the winder if stepped on during operation. In addition, emergency stop buttons are located at each end of the platform. When paper breaks occur and employees must clear the debris paper and make a splice, the nip barrier is raised and the floor-pad interlocking guard is de-activated in a manner that allows the machine to move, though not at production speed.

After the paper break the machine had been slowed to a speed of about fifty feet per minute. The winder must be moving during re-threading and in preparation for the splice, but it need not be in motion while debris paper is cleared. Breaks or paper jams that cannot be corrected occur occasionally and in that case the roll is removed and recycled (“beatered”).

On April 24, 1998, 2½ months before Webb’s accident, another employee, Dawn Burcio, was injured when she stepped onto the platform to make a splice. On that same day, Bill Webb [no relation], supervisor of Lance Webb’s crew, conducted a safety meeting. He discussed Burcio’s accident and the hazards of nip points on the winder machine. He gave instructions not to stand on the platform. Margie Hansen [Hansen], Employer’s Safety Engineer, investigated the Burcio accident. She also participated in a meeting of the Incident Review Committee. That committee recommended painting “Do Not Stand” on the platform and also “Communicat[ing] to all crews that climbing on moving equipment will not be tolerated.”

Employer issued two memoranda; the first on April 22, 1998 cautioned against standing on the platform while making splices and the second on April 24, 1998 cautioned against standing on the platform when clearing debris and included the general admonition “[s]tanding on any piece of equipment is not allowed unless there is a working platform, it is properly isolated, and/or proper fall protection is used.”

In early May 1998, Employer’s General Manager conducted safety meetings with each crew and cautioned them against standing on the platform.

After investigating Webb’s accident, Employer instituted disciplinary proceedings that culminated in a release agreement signed by Webb, his union representatives, and Employer. Webb admitted there was just cause for his termination but Employer instead agreed that he would not be discharged but put on probation.

ISSUES

1. Did the Division establish a serious violation of section 4423(g)?
2. Did Employer prove the independent employee action defense?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Established a Violation of Section 4423(g).

Employer contends it did not violate section 4423(g) because even though Webb was injured while the machine was running, the winder drum was guarded during normal high-speed operation. Section 4423(g) requires that on paper machines “All drum winder nip points shall be guarded.”

In this case the wire mesh barrier that protects the nip point is in place when the machine runs at its production speed [7,200 feet per minute]. If a paper break occurs, the nip point barrier is raised in order to clear the paper, splice it, and re-thread the machine. However, when the nip barrier is raised, the machine runs at “jog” speed [50 feet per minute] and the nip point is unguarded. The machine was running at jog speed when Webb got up onto the platform and his foot got caught in the nip point of the winder machine. We read section 4423(g) as requiring winder drum nip points to be guarded at all times during operation subject to the qualifications listed in section 3314(a).

Employer argues that the ALJ decision in reality found a violation of section 3314(a). It asserts that “Gaylord was cited for the wrong Title 8 section [§ 4423(g)] and the Administrative Law Judge’s decision is a belated attempt to cure this defect.”

Section 3314(a) 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 unless the machinery or equipment must be capable of movement during this period in order to perform the specific task. If so, the employer shall minimize the hazard of movement by providing and requiring the use of extension tools (e.g., extended swabs, brushes, scrapers) or other methods or means to protect employees from injury due to such movement. Employees shall be made familiar with the safe use and maintenance of such tools by thorough training … .

In this case the machine was running when Webb’s injury occurred and the nip point was unguarded. The employee did not lock out the machine during removal of debris paper. Although the ALJ found that the splicing and rethreading operation after a break and the clearing of debris paper were tasks that are closely related and conducted in concert, we do not agree that the machine needed to be capable of movement in order to clear out the debris paper.

The evidence established that the machine need not be capable of movement in order to remove debris paper. Steven Enzor, Employer’s area manager for engineering, testified that loose paper should be removed with the machine shut down. We held in Sacramento Bag Mfg. Co., (Cal/OSHA App. 91-320, Decision After Reconsideration (Dec. 11, 1992)) that section 3314(a)’s exception to the lockout requirement only applies when the machine must be capable of movement during the conduct of the specific tasks. Employer has the burden of establishing at the hearing that the machine must be capable of movement during the operation in question and as we noted above Enzor established just the opposite; the machine need not be capable of movement to remove the debris paper.

Employer contended that it was cited for a violation of section 4423(g) and that the ALJ proceeded to find a violation of section 3314(a). We disagree. The ALJ did not find that Employer violated section 3314(a) but rather, that Employer did not comply with section 3314(a). Compliance with the provisions of section 3314(a) could excuse the failure to guard requirement of section 4423(g). (See Anheuser-Busch, Inc., Cal/OSHA App. 77-174, Decision After Reconsideration (Nov. 30, 1978); Tri-Valley Growers, Plant #7, Cal/OSHA App. 78-1183, Decision After Reconsideration (Sep. 28, 1984); Tri/Valley Growers, Cal/OSHA App. 80-1130, Decision After Reconsideration (Aug. 31, 1981). Non-compliance with section 3314(a)’s lockout provisions leaves Employer in a position of having to comply with the nip point guarding requirement of section 4423(g).

We find that because the machine continued to run when the wire mesh gate was opened and employee access to the nip point was possible Employer did not guard the nip point as required and a violation of section 4423(g) was established.

The Violation Was Properly Classified As Serious.

A violation is classified as serious if it is substantially probable that death or serious physical harm could result from an accident caused by the violation and the employer either knew of the violation or could have known of it with the exercise of reasonable diligence. [Labor Code § 6432(a)].2 Employer does not contest the first element of the serious classification, substantial probability that death or serious physical harm could result from an accident caused by the violation. Since it was not raised in the petition for reconsideration it is waived. (§ 391.)

Employer argues that the second element of the serious classification has not been satisfied. Employer contends that any violation of section 4423(g) could not have been properly classified as serious because Employer had no reason to know that its employees would be exposed to an unprotected nip point. To meet its burden of proving Employer knowledge the Division does not have to show that Employer was actually aware of an unsafe condition. (West Coast Steel, Cal/OSHA App. 81-0191, Decision After Reconsideration (May 15, 1985).) The Division may meet its burden by a showing that Employer could have, with the exercise of reasonable diligence, known of the existence of the violation. To show Employer could have known of the violation by exercising reasonable diligence, the Division had to prove the violation occurred at a time when Employer could have detected it. (See Lights of America, Cal/OSHA App. 89-400, Decision After Reconsideration (Feb. 19, 1991).) Hazardous conditions in plain view constitute serious violations since the employer could detect them by exercising reasonable diligence. (Fibreboard Box & Millwork Corp., Cal/OSHA App. 90-492, Decision After Reconsideration (Jun. 21, 1991).)

Employees testified that prior to Lance Webb’s accident and after Employer’s directions not to step up onto the platform following Burcio’s accident, it was common practice for employees to get up onto the platform to remove debris paper and to re-thread the machine after a paper break. Employee Eric Presser testified that he, and four others whom he named, got up onto the platform after Burcio’s accident. Employee Kevin Kavert testified that he reported to Supervisor Yoder that employees continued to get up onto the platform. Supervisors Myers and B. Webb testified that they had heard that employees continued to get onto the platform. Hansen testified that supervisory personnel should have made reports to her of what they were told and what they heard in order to further investigate. She admitted that their failure to do so was a procedural violation of company policy.

We find that Employer’s supervisors had sufficient information regarding employees violating Employer’s safety directive to refrain from getting onto the platform, to warrant further investigation. This information warranting further investigation is enough to trigger the exercise of reasonable diligence by Employer. We therefore find that had Employer exercised reasonable diligence it would have known of the employees’ failure to follow its directive to refrain from getting up onto the platform. Thus, we find that the second element required to prove a serious violation, Employer knowledge, is satisfied.

2. Employer Failed to Prove the Independent Employee Action Defense.

The Independent Employee Action Defense is an affirmative defense that applies when an employee acts against the best safety efforts of the employer in causing a violation. The employer must prove each of the following elements by a preponderance of the evidence to establish this defense and thereby avoid liability for the violation: 1) The employee was experienced in the job being performed; 2) The employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments; 3) The employer effectively enforces the safety program; 4) The employer has a policy of sanctions against employees who violate the safety program. 5) the employee caused a safety infraction which he or she knew was contra to the employer’s safety requirements. (Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision after Reconsideration (October 16, 1980).)

Even if Employer met all of the elements of the independent employee action defense enunciated in Mercury Service, supra, the defense is unavailable in a failure to guard case such as this. (See City of Los Angeles, Dept. of Public Works, Cal/OSHA App. 85-958, Decision After Reconsideration (Dec. 31, 1986); see, also, Kaiser Aluminum and Chemical Corp., Cal/OSHA App. 80-1014, Decision After Reconsideration (Feb. 19, 1985).) In Kaiser Aluminum, supra, the employer argued its company policy required employees to keep a safe distance from the danger zone of the point of operation and therefore provided protection by other means than guarding. The Board held that such a rule or policy by Employer that employees maintain a safe distance from the danger zone is not “equivalent” protection. Thus, “such [an] administrative policy cannot substitute for mechanical protection [required by the safety order].” (City of Los Angeles, Dept of Public Works, pg. 6, supra.)

Employer’s directive to refrain from getting up onto the platform is not a substitute for the guarding requirement of section 4423(g) that would protect against accidental contact with a dangerous nip point. For these reasons Employer’s independent employee action defense is rejected.

Penalty Reduction

Although the appropriateness of the proposed civil penalty is not an issue in this appeal, we note that the ALJ reduced the proposed penalty from $5,000 to $1,500 because he found the Division’s proposed penalty did not take sufficient account of the efforts made by upper management and safety personnel to address the danger of employee exposure to the nip point of the winder machine. The ALJ declared this case to be a proper one for the exercise of the Board’s discretion4 to reduce penalties because of mitigating circumstances not factored in to the Director’s penalty setting regulations. (§§ 330-336.)

The violation caused the serious injury to an employee. Under Labor Code section 6319(d) if a serious violation causes a serious injury, “the penalty shall not be reduced for any reason other than the size of the business of the employer being charged.” In Liberty Vinyl Corporation, supra, the Board declared, “that the Appeals Board has full discretion in establishing the final monetary penalty necessary to encourage elimination of safety and health hazards provided that such discretion is consistent with the Act.” [Emphasis added.]

The issue of penalty reduction is not properly before us. (§ 390.3.) Section 391 requires each issue to be set forth in full detail and every issue to be considered by the Appeals Board on reconsideration. Labor Code section 6614 limits the issues on reconsideration to those that have been raised in the petition.

If the issue of the penalty had been raised it could not have been reduced because of Labor Code section 6319(d)’s prohibition against penalty reduction in accident-related serious violations except for the size of the business.

The ALJ’s reduction of the proposed penalty was based on a reason other than the size of Employer’s business, and had it been before us it could not have been sustained because it violated an express statutory mandate. (Dennis J. Amoroso Construction Co., Inc., Cal./OSHA App. 98-4256 Decision After Reconsideration (Dec. 20, 2001)5; see, also, Pacific Underground Construction, Inc., Cal/OSHA App. 89-510, Decision After Reconsideration (Nov. 28, 1990); Keller Industries, Inc., Cal/OSHA App. 90-722, Decision After Reconsideration (May 8, 1991).)

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 4423(g) and assessing a civil penalty of $1,500.
MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 12, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Section 6432(a) was amended effective 1/1/2000; it became subsection (b) and placed the burden on the employer to demonstrate that it did not, and could not with the exercise of reasonable diligence know of the presence of the violation. (Stats.1999, c.615 (A.B.1127), § 10.)
4 Liberty Vinyl Corporation, Cal/OSHA App. 78-1276, Decision After Reconsideration (Sep. 24, 1980)
5 We note that Dennis J. Amoroso was a case where the petition for reconsideration was filed by the Division and therefore the penalty was properly before us.