BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

RAY PRODUCTS, INC.
1700 Chablis Avenue
Ontario, CA 91761

 

                              Employer

 

Docket No.

99-R3D3-3169

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Heath 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 Ray Products, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Ray Products, Inc. is engaged in manufacturing and machining plastic products. From April 15, 1999 through October 4, 1999, the Division of Occupational Safety and Heath (the Division) conducted an accident investigation at a place of employment maintained by Employer at 1700 Chablis Avenue, Ontario, California (the site). On October 6, 1999, the Division cited Employer for a serious violation of section 4002(a) [lack of guarding] found in Title 8, California Code of Regulations1 and proposed a civil penalty of $1,715.

Employer filed a timely appeal contesting the existence of the violation, its classification, and the reasonableness of the proposed penalty.

A hearing was held before Jack L. Hesson, an Administrative Law Judge (ALJ) of the Board, in San Bernardino, California. Employer was represented by Fred C. Gillett, Consultant, of Xordium Inc. David Pies, Staff Counsel, represented the Division.

On December 21, 2000, the ALJ issued and mailed a decision affirming the violation. Employer filed a petition for reconsideration on January 24, 2001. The timeliness of the petition was raised in the Division’s answer, which was filed on February 20, 2001. The Board issued an order granting Employer’s petition on March 12, 2001.

TIMELINESS OF PETITION

As a threshold matter, the timeliness of the petition is addressed first. The Division argues that the petition is untimely because the Division was not served with the petition within thirty days of issuance of the ALJ decision. Section 391.1 states that a petition for reconsideration shall be deemed filed on the date it is mailed to the Appeals Board.

The parties were served with the ALJ decision on December 21, 2000. Employer mailed the petition for reconsideration to the Board on January 24, 2001. On January 25, 2001, the Board informed Employer that the Division must be served with a copy of the petition within five days, i.e. no later than January 30, 2001. The Division was subsequently served on January 29, 2001. Although the Division was served 39 days after the decision was issued, the petition is timely because it was deemed filed on January 24, 2001, the date it was mailed to the Board.

EVIDENCE

On April 15, 1999, Robert Jennings (Jennings) commenced an accident investigation2 for the Division. Employer was cited for a serious violation of section 4002(a) alleging that Employer’s Control Numerical Control (CNC) machine moves on several axes creating pinch points and barriers or other guarding are not in place to prevent operators from contacting moving parts. Employer asserts that the moving parts of the machine do not create pinch points that are unguarded.

The CNC machine is computer-controlled and capable of simultaneously performing several machining operations at different angles. The machine has two motors that are attached to a frame about five feet from the ground. The motors move vertically and horizontally along a 10-foot track on the frame. While the motors are moving, they are also rotating with a cutter on one end. The motors are three feet above two tables. The tables are about two feet off the floor, directly under the frame, and move forward and backwards. When a plastic product is placed on one table, the table moves, while the motors move left or right and the cutter moves down towards the product.

Bruce Ray (Ray) has been involved with Ray Products, Inc. since 1965. He explained that during the programming process an employee writes the program, alters it to make it work, and performs tests to check that the program is accurate. Ray testified that a programmer must be close to the machine while dialing in where he wants the machine to cut to ensure that the product will pass quality control (trim must be within .005). Ray stated that the machines have been enclosed on three sides to prevent waste from moving to other areas, but he did not want the space to be “too confining”. The machine did not come with guards and Ray does not believe that it would function properly if covered.

Jennings identified the hazards to employees as the nip point on the table, the rotating motors, and the space between the moving machinery and the frame. He testified that he considers the unguarded moving parts to be hazardous because employees could become entangled in the moving machinery and suffer serious injury (“crushing, laceration or amputation”). The hazards created by the machine are in plain sight, so Jennings believes that Employer should have known of them.

Edward Bellezzo (Bellezzo) is a distributor of Motion Master machinery similar to the machine involved in the accident. He testified that these machines move on an X-axis by a ball screw across the top; the tables move on a Y-axis; and the motors move on a Z-axis. Because the motors can be programmed to move in a circle the machines are considered capable of movement along 5-axes. Bellezzo acknowledged that movement along 5-axes increases the risk of injury to programmers because they program the movement step by step and have to be close to the machine to check each step.

ISSUES

1. Was the new evidence Employer seeks to introduce available before the hearing?
2. Did the Division establish a violation of section 4002(a)?
3. Was the violation properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The New Evidence Employer Seeks to Introduce was Available Before the Hearing.

Employer claims that new evidence regarding the machine’s speed should be considered by the Board. Assuming the numerical rate of speed (movement on the X and Y axes is less than 800 inches per minute) is the new evidence, Employer has not demonstrated that this information was not available at the time of the hearing. The information easily could have been obtained from the machine’s specifications or the manufacturer3.

We find that Employer knew the numerical rate of speed, or could have discovered it with reasonable diligence prior to the hearing; therefore it will not be considered. The Board may only consider new evidence if a party establishes that it could not, with reasonable diligence, have discovered and produced that evidence at hearing. (§ 390.1(a)(4); The Tresize Company, Cal/OSHA App. 93-1996, Denial of Petition for Reconsideration (Oct. 31, 1995).)

2. The Division Established a Violation of Section 4002(a).

Employer maintains that there are no pinch points in the CNC machine in violation of section 4002(a). Section 4002(a) states:

All machines, parts of machines, or component parts of machines which create hazardous revolving, reciprocating, running, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action, including pinch points and shear points, not guarded by the frame of the machine(s) or by location, shall be guarded.

We have independently reviewed the evidence and agree with the ALJ’s finding that the CNC machine has several pinch points. Bellezzo stated, “movement along 5 axes increases the risk to programmers.” Movement along five axes creates points where different parts of machinery move on separate axes, simultaneously changing the size of spaces between the parts. Jennings testified that several hazardous locations existed, which included “a nip point on the table, the rotating motors, and the area between the moving machinery.” We agree that there are several pinch points on the CNC machine which permit a part of the body to be caught between two moving parts or a moving part and a stationary object. We find that pinch points exist between the two tables, between the two motors, between the frame and the tables, between the frame and the motors and between the frame and the track.

The mere existence of pinch points does not establish a violation of section 4002(a). The Division must also establish that employees were exposed to the hazardous movement of the CNC machine. (See e.g., Moran Constructors, Inc., Cal/OSHA App. 74-381, Decision After Reconsideration (Jan. 28, 1975).) Employer claims that the moving parts in the CNC machine are guarded by location, thus employees are not exposed to the hazardous movement. A machine is guarded by location when the likelihood of accidental contact with moving parts is removed by their remoteness from the floor, walkway or other working level, or by their location with reference to the frame (§ 3941).4

Ray, Bellezzo, and Jennings testified that employees had to be close to the machine to program the movements. The video admitted into evidence showed that all of the moving parts of the CNC machine are located between 2 and 5 feet off the ground and are directly connected to the frame, forming pinch points. The tables appear to extend five feet in front and behind the frame, which only decreases the likeliness of accidental contact with the other moving parts when employees are standing in front of or behind the machine. The frame appears to extend beyond the table on the sides and is enclosed by walls, but as the ALJ found, there is “enough room for employees to move around the machine.” The video showed that the space on the sides of the machine allows employees to get close enough to contact the hazardous moving parts. We find that employees that are required to be close to the CNC machine while programming are exposed to hazardous moving parts, which are not guarded by location.

3. The Violation was Improperly Classified as Serious.

Employer claims that the violation should not be classified as serious because contact with the moving parts would not result in serious injury. A serious violation shall be deemed to exist if there is a substantial probability that death or serious physical harm could result from the violation and the employer knew or could have known of the violation (Labor Code §6432(a)(b); (Southern California Edison, Cal/OSHA App. 89-445, Decision After Reconsideration (March 14, 1991)). In the context of the cited section, “substantial probability” means that death or serious physical harm5 is more likely than not, assuming an accident or exposure occurs. (Labor Code §6432(c); Pacific Steel Casting Co., Cal/OSHA App. 79-1514, Decision After Reconsideration (Nov. 15, 1984)).

Although the ALJ found that the movement of the CNC machine could result in serious injury, the record fails to establish a substantial probability that the machine would cause a serious injury. The video and photos display several pinch points which could cause injuries, but the mere existence of pinch points does not establish that a serious injury is more likely to occur than not. The location and size of the pinch point must be evaluated to determine if it will cause an injury that requires more than 24 hours of hospitalization, a loss of a member of the body, or serious permanent disfigurement. Jennings’ statements regarding crushing, lacerations or amputations are conclusory and not specific to a particular pinch point or circumstance. The record is void of testimony regarding the actual size of any of the pinch points, thus we are left only to speculate regarding the likelihood of a serious injury. The Board finds that the record does not establish a substantial probability that serious injury would result from contact with the moving parts of the CNC machine.6 The violation of section 4002(a) is reduced to general.

DECISION AFTER RECONSIDERATION

The Board affirms the violation, but reduces the classification to general and assesses a civil penalty of $515.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 20, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 An employee (programmer) was fatally injured when a bur broke off the machine and passed through the employee’s chest. The violation of section 4002(a), which is the subject of this petition, is unrelated to the accident.
3 The general speed of the machine was introduced at the hearing in Employer’s video. The ALJ acknowledged that the speed of the machine was introduced when he stated, “[t]hough the machinery moves slowly … programmers are exposed to hazardous motion in violation of 4002(a).”
4 Employer also stated that according to section 3944(d), a guard is not necessary because the programmer never has a necessity to get within 24 inches of the moving parts. Section 3944(d) does not state that a guard is unnecessary where exposure is beyond 20 inches from any moving part, it simply addresses standard railing guards.
5 The phrase “serious physical harm” is not defined in the regulations, but the Board has equated it with “serious injury or illness” which is “…any injury … which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement…” (§330(h); Abatti Farms/Produce, Cal/OSHA App. 81-256, Decision After Reconsideration (Oct. 4, 1985).)
6 Since the first element of a “serious” classification (substantial probability of serious injury) is not satisfied, we do not address the second element of employer knowledge of the violation.