BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

METALCLAD INSULATION CORP.
2198 South Dupont Drive
Anaheim, CA 93803-6124

Employer

Docket No. 96-R3D5-130

 

 

DECISION AFTER
RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, ordered reconsideration on its own motion on November 24, 1997, and also granted the petition of the Division of Occupational Safety and Health (Division), on December 3, 1997, in the above-entitled case, and makes the following decision after reconsideration.

JURISDICTION

From August 29, 1995 through January 8, 1996, a representative of the Division conducted an inspection at a place of employment maintained by Metalclad Insulation Corp. (Employer) at 1801 East Sepulveda Boulevard, Carson, California. On January 9, 1996, the Division issued a citation to Employer alleging a serious violation of section 4187(a) [guarding in-running rollers], with a proposed civil penalty of $5,000.

Employer filed a timely appeal. After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on October 29, 1997, finding that Employer had not violated section 4187(a) and setting aside the citation and related civil penalty.

The Board’s order of reconsideration was limited to the issue of whether the decision’s characterization of the employee’s act that led to his injury as "deliberate malfeasance" was supported by the evidence. The Division filed a petition for reconsideration on December 3, 1997, contending that the ALJ incorrectly concluded that the serious violation was not proven. Employer filed an answer to the Division’s petition on December 30, 1997.

EVIDENCE

The Appeals Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision. The Appeals Board adopts the Summary of Evidence on pages two and three of the ALJ’s decision.

Employer was hired as a subcontractor at an oil refinery to install insulation on pipes. Employer made labels for the pipes at a shop it maintained inside the refinery. The labels were made using machines referred to herein as "roll machines." Roll machines bend flat material into rounded shapes by the action of rollers inside the machine.

On the side from which an operator would feed metal into the rollers the cited roll machine had two openings into its rolls, one above the other. The lower opening was smaller, with a 1 inch opening. Flat pieces of sheet metal to be bent into rounded labels were fed into the smaller opening. Before the machine was turned on, the sheet metal was placed on a feed table which was level with the bottom surface of the smaller opening. The operator’s fingers were protected from passing through the smaller opening and into the roll by a guard that provided an opening too small to permit an operator’s fingers to reach the rollers. The roll machine also had another, larger opening above the feed opening through which rollers were accessible. This large opening was 3 inches wide. It had no guard and the rollers were accessible through it.

Employer had established operating procedures intended to protect operators from exposure to the rolls. The first rule was that only employees authorized by Employer were allowed to operate the roll machine. Operators were trained to set the sheet metal on the feed table, remove their hands, and press a foot pedal below the feed table. The rolls would not begin rotating and drawing the sheet metal in until the foot pedal was pressed. On this jobsite, Employer also prohibited any piece of sheet metal less than 13 inches in length from being processed in the roll machine, so that operators’ fingers would be kept away from the larger opening.

On the day of the accident, Edward Alarcon, an employee who had not been trained to operate the roll machine, had been working in the shop cutting bands used to hold labels on the pipes. Another employee, Antonio Reyes, saw Alarcon approaching the roll machine holding a piece of scrap sheet metal. Reyes, who often worked as Alarcon’s leadman in the field, warned Alarcon to get away from the machine, that it would "suck him right in." Reyes looked away, then turned around when he heard Alarcon moan. Alarcon’s fingers had been caught in the rolls. A piece of sheet metal like that seen in Alarcon’s hands was found in the rolls.

The Division cited Employer under section 4187(a) for failing to guard a roll. The ALJ found that the machine was properly guarded and that the employee’s conduct constituted "malfeasance."

ISSUES

1. Was the roll machine properly guarded as required by section 4187(a)?

2. Was the employee’s attempt to operate the roll machine an act of "malfeasance" that would make section 4187(a) inapplicable?

 

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

 

1. The Roll Machine Was Not Properly Guarded as Required by Section 4187(a).

Section 4187(a) is titled "Rolls," and provides:

    1. The in-running side of the rolls shall be protected with a fixed or self-adjusting barrier so arranged that the material can be fed to the rolls without permitting the fingers of the operator to be caught between the rolls, . . .

Note: (1) The intent of this section is primarily to achieve point of operation guarding as required by Subsection (a) above. . . . (Emphasis added.)

"Point of operation" for purposes of Group 8 machines is defined in section 4188(a) as:

Point of operation. 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. A machine may have more than one point of operation.

The roll machine therefore had two openings to the point of operation: the lower, guarded opening with the feed table and the higher, larger, unguarded opening. Both openings gave access to the rollers, which performed operations on the "stock," the sheet metal being fed into the machine.

There is no dispute that the smaller opening was properly guarded in compliance with section 4187(a). It is also undisputed that the larger, 3 inch-wide opening had no guard. The Division contends that the lack of guarding of the larger opening establishes a violation. Employer contends, and the ALJ found, that the procedures it had established kept employees out of the zone of danger created by the larger, unguarded opening and therefore constituted sufficient administrative controls to prevent a finding that the lack of guarding on the 3 inch opening violated section 4187(a). The rules and procedures included allowing only authorized, trained employees to operate the roll machine, prohibiting employees from rolling any piece of sheet metal less than 13 inches in length, and requiring employees to remove their hands before pressing the electric foot pedal.

The ALJ found that Employer stated that it did not conceive that the space above the guard presented a danger to the operator. The ALJ also found that Employer had done all that section 4187(a) required of it through the rules and procedures it had in place for the operation of this roll machine and the physical arrangement of the machine.

In interpreting section 4187, the Board has expressly rejected rules and procedures of the kind Employer had established as a defense to a failure to guard a point of operation. In Bethlehem Steel Corporation, the employer contended that its rule requiring employees to step back at least four feet from a roll machine before it was activated kept them out of the zone of danger created by its unguarded rolls. The Board stated:

The Appeals Board is not persuaded. The relevant test as expressed in the cited safety order and its accompanying "Note" (which clearly sets forth the Standards Board’s intent) is whether the roll machine permits the fingers of the operator to be caught between the rolls. (Emphasis in original.)

In this case, the larger, unguarded opening on the cited roll machine clearly permitted the fingers of an operator to be caught between the rolls. Consistent with the Board’s holding in Bethlehem Steel, the Board finds that Employer’s procedures and rules for operating the roll machine do not constitute a defense to the citation for the unguarded 3-inch opening.

Employer contends that the injured employee was not an authorized operator of the cited roll machine. Citing United Foods, Inc., Employer contends that section 4187(a) does not apply to this employee. Employer has misconstrued the findings in United Foods. In that case, the issue was whether section 4187(a) was intended to guard against accidental contact by employees who were in proximity to the point of operation for reasons other than operating the machine. United Foods limited the application of section 4187(a) to employees who come within the danger zone of the point of operation because they are feeding material into the rolls, the same circumstances presented in this case. The injured worker was clearly "operating" the roll machine and the fact that such operation was unauthorized does not make him any less an operator for purposes of section 4187.

While Alarcon may not have been an authorized operator of the roll machine under Employer’s rules, he was certainly operating the roll machine. His failure to comply with Employer’s rules and procedures provides Employer no defense to a citation for the absence of guarding required by section 4187. Under the Board’s interpretation of section 4187 in Bethlehem Steel, supra, it was explicitly held that an employer’s rules and procedures directed to employees do not excuse a failure to guard a roll machine.

The Board therefore concludes that a violation of section 4187(a) was established.

2. The Employee’s Attempt to Operate the Roll Machine Was Not an Act of Malfeasance that Would Make Section 4187(a) Inapplicable.

The Board’s order of reconsideration and the Division’s petition raise the issue of the appropriateness of the ALJ’s characterization of Alarcon’s action as malfeasance. The Board’s order of reconsideration states that it will consider whether the ALJ’s characterization of Alarcon’s conduct as malfeasance was supported by the evidence. The Division’s petition contends that the ALJ’s application of the term "malfeasance" constitutes the creation of a new defense.

The ALJ held that the absence of guarding of the larger opening was not a violation because the guarding safety orders generally are intended to protect against acts of carelessness and the injured employee’s act was not carelessness but deliberate malfeasance. The decision found that the employee’s stepping on the control pedal was a deliberate and intentional act in violation of Employer’s rules. One of these rules forbade an untrained employee from operating the roll machine. For the reasons the Board stated in Bethlehem Steel, supra, failure to adhere to such rules and procedures cannot provide a defense. Characterizing Alarcon’s intentional starting of the roll machine as malfeasance rather than failure to follow the rule forbidding him to operate the machine merely relabels the misconduct but does not convert it into a defense.

Employee misconduct is not a basis for setting aside a violation. The Board further does not find, based on the circumstantial and hearsay evidence available, that the injured employee’s conduct amounted to "malfeasance."

The Board therefore concludes that a violation of section 4187(a) was established. The Division’s computation of the civil penalty as set forth in the compliance officer’s testimony and the penalty work sheet placed in evidence, established that the appropriate civil penalty was $1,125.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is reversed. A serious violation of section 4187(a) is established, and a civil penalty of $1,125 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member 

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - October 4, 2000