In the Matter of the Appeal of:

1000 West Francisco Street
Torrance, CA 90502



Docket No. 96-R3D5-1445



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 (the Division), makes the following decision after reconsideration.


Between March 22, 1996 and April 23, 1996, the Division, through compliance officer Nirmal Paul, conducted an accident inspection at a place of employment maintained by Ferro Union, Inc. (Employer) at 1000 West Francisco Street, Torrance, California. On April 24, 1996, the Division issued to Employer a citation alleging a serious violation of section 3314(a), with a proposed civil penalty of $5,000.

Employer filed a timely appeal contesting the reasonableness of the proposed civil penalty. Employer, at a prehearing conference, moved to amend its appeal to contest the existence of the violation and to assert the independent employee action defense. The motion was granted without objection from the Division.

After a hearing before an administrative law judge of the Board (ALJ), the ALJ issued a decision on September 24, 1997, finding that a violation of section 3314(a) had been established. The ALJ further found that Employer had established the independent employee action defense and therefore granted Employer’s appeal.

On October 21, 1997, the Division filed a petition for reconsideration. The Appeals Board granted the Division’s petition on November 10, 1997. Employer did not file an answer.


In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the Summary of Evidence set forth on pages 2 through 6 of the decision of the ALJ.

On March 7, 1996, maintenance mechanic Bruno Alvarez was injured while servicing a leveling line and shear machine. The injury occurred when Alvarez put his hand on the machine’s drive belt to investigate the cause of a noise the machine had been making. The machine’s day shift operator, Frank Ahumada, was with Alvarez to assist Alvarez in checking the drive belt. Neither Alvarez nor Ahumada had locked out the machine before Alvarez contacted the belt. The injury occurred when the machine’s night shift operator, whom Alvarez was unaware had stayed over onto the day shift, started the machine from its main control station. The control station is 20 feet from where Alvarez and Ahumada were working, and the machine blocks the view between the control station and the belt. Alvarez’s finger was partially amputated and he suffered other injuries to his hand.

Employer had discussed lockout procedures in employee safety meetings, but no evidence of the dates of such meetings was introduced, and Employer did not establish that Alvarez attended any training on lockout procedures, or that he had read a booklet distributed by Employer describing its lockout procedures. Neither the booklet nor any other documentation or testimony describing Employer’s safety procedures were introduced into evidence. Both Alvarez and the senior maintenance mechanic testified that they understood they had discretion to decide whether to lock out the machines they were servicing, and that they did service machines without locking them out.

The Division cited Employer under section 3314(a), alleging that the line and shear machine was not shut down and locked out at the time Alvarez was engaged in servicing it. The ALJ found that Alvarez was aware of the lock out requirement, and had decided not to lock out the machine before working on the belt.


Did Employer prove the affirmative defense of independent employee action?


Section 3314(a) provides in relevant part:

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. . .

The ALJ found that the work Alvarez performed on the belt was a servicing or adjusting operation, that section 3314(a) had been violated because the machine had not been locked out before the servicing was attempted, and that the violation was accident-related. The ALJ found, however, that Employer was not responsible for the violation because Employer had established the independent employee action defense.

To establish the affirmative defense of independent employee action, an employer must prove five elements:

    1. The employee was experienced in the job being performed.
    2. Employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments.
    3. Employer effectively enforces the safety program.
    4. Employer has a policy which it enforces of sanctions against employees who violate the safety program, and
    5. The employee caused a safety infraction which he or she knew was contra to the Employer’s safety requirement. (Mercury Service, Inc.)

Failure to prove any one of the above elements negates the defense. (Id.) The ALJ found that Employer had established all five elements of the defense, and therefore granted Employer’s appeal.

The ALJ found that on certain occasions, Employer’s safety program left the decision whether or not to lock out equipment to the discretion of the employee. This finding is supported by the testimony of the maintenance mechanics who testified that they understood they had discretion not to lock out machines when they serviced or adjusted them.

The Division contends that because Employer’s safety policy made the decision to lock out a machine discretionary with the employee, Employer cannot establish that its safety program was well-devised, the second element of the defense. The Division further contends that because the requirement was left to the employee’s discretion, Employer cannot prove that the employee was aware that it had violated Employer’s safety program, the fifth element.

While the Board has no doubt of the sincerity of Employer’s safety efforts, it has long held that leaving compliance with a safety order to the discretion of an employee is an impermissible delegation of the employer’s obligation to ensure compliance with the safety orders. The employer is still responsible for any violations that occur where it has allowed safety responsibilities to be delegated to employees. In Southern California Gas Company the Board held that the independent employee action defense was not available where an employer’s safety program left compliance with safety orders to the discretion of non-management employees. The Board therefore finds that the defense is unavailable to Employer in the present case.

The ALJ found that employee Alvarez was aware of the lockout requirement, and that it applied to the operation he was performing on the shear machine. Based on this, the ALJ rejected Alvarez’s testimony that he did not believe he was violating Employer’s safety rule by not locking out the machine. In the Board’s view, these findings are not supportive of the finding that Employer established Alvarez knew Employer’s policy required him to lock out the leveling line and shear machine before beginning to service the belt.

The ALJ based the conclusion that Alvarez was aware of the requirement in part on Alvarez’s statement to Employer’s safety director in a post-accident interview that he had "made an error" by not locking out the machine. Alvarez’s statement that it was an error not to have locked out the machine could just as well mean that Alvarez, after losing part of a finger, recognized that his exercise of the discretion that Employer had allowed him, had turned out to be wrong. Alvarez may have believed that because the day-shift operator was with him and had no access to the controls that the machine would not be turned on. Alvarez’s testimony that he was unaware of the presence of the night shift operator who had stayed over onto the day shift was uncontradicted.

Both Alvarez and the senior maintenance mechanic testified that they understood Employer’s lockout rule to mean that they had discretion as to when to lock out machines. No documentary evidence of the content of Employer’s lockout procedures was introduced, and the oral testimony established that the lockout requirement was understood by the mechanics to be discretionary, not absolute. In his opening statement, Employer’s safety director stated only that Alvarez had made an error in judgment, not that he had violated a clear or absolute rule. The evidence does not clearly support a finding that Alvarez knew he had violated a clearly understood safety requirement. The various reasons Alvarez gave for not locking out the machine, which indicated to the ALJ that Alvarez was aware of an absolute requirement to lock out the machine, could all have been valid considerations if the decision were left in his discretion.

The Board finds that because Employer’s policy did not require that the machine be locked out at all times during servicing or adjusting, Employer’s safety program on this issue was not well-devised. The second element of the independent employee action defense therefore was not established. The Board further finds that the fifth element of the independent employee action defense, that the employee knew he was violating Employer’s safety requirement, cannot be established because the decision to comply with the safety order was left to the employee. The lock out procedure should have been absolute, not granting employees any discretion in its application.

The Board therefore finds that the independent employee action defense is not established, and that Employer violated section 3314(a). Because the violation was both serious and accident-related, and Employer had more than 100 employees, the $5,000 civil penalty is appropriate.


The Decision of the ALJ dated September 24, 1997, is reversed. Employer’s appeal is denied. A serious violation of section 3314(a) is established and a civil penalty of $5,000 is assessed.