BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

Sierra Ready Mix
P.O. Box 537
El Dorado, California 95623

                                                 Employer

Docket No. 95-R2D1-2453

 

 

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 proceeding by Sierra Ready Mix (Employer), makes the following decision after reconsideration.

JURISDICTION

On April 14, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 5481 Davidson Road, El Dorado, California (the site). On June 7, 1995, the Division issued to Employer Citation No. 1, alleging a serious violation of section 3314(a) [de-energizing equipment for cleaning] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed a $3,500 penalty for the alleged violation.

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

After a hearing on October 30, 1996, an administrative law judge (ALJ) of the Board denied the appeal in a written decision issued on January 2, 1997.

On January 28, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. On February 25, 1997, the Board granted Employer’s petition and stayed the ALJ’s decision pending reconsideration.

ISSUES

1. Does the evidence establish a violation of section 3314(a)?

2. Was the violation correctly classified as serious?

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record in making this decision.

Employer operated a ready-mix concrete plant at the site. An unusually sticky type of sand had accumulated on a roller supporting an inclined sand and aggregate conveyor belt. The supervisor, who operated the plant and directed the work of employees, instructed an employee to scrape the sand off the roller with the blade of a shovel. The employee stood on the floor and raised the shovel overhead to bring the blade into contact with the roller. The supervisor energized the conveyor and, shortly thereafter, the shovel blade became stuck in the pinch point between the roller and the underside of the conveyor belt.

The supervisor de-energized the conveyor and the employee extricated the shovel. At the supervisor’s direction, the employee backed his truck under the roller and stood on the truck to get closer to the roller. He began trying to scrape the roller with the shovel but found it awkward to use the shovel from that location. The supervisor stated that he was to going to re-energize the conveyor and started up the stairs to the control room. The employee testified that he responded "no" and began trying to clean the roller with his hand.

The supervisor testified that he had advised the employee to keep his hands away from the roller, that he did not hear the employee say "no," and, that he did not know the employee had begun cleaning the roller with his hand. When the supervisor reached the control room he re-energized the conveyor and the employee’s hand and arm were pulled into the pinch point between the belt and roller, causing serious injuries.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

    1. The Evidence Establishes a Violation of Section 3314(a).

Section 3314(a) reads, in pertinent part, as follows:

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.

At the time of the accident, the employee was performing a cleaning operation, the conveyor was not de-energized and the employee was not using an extension tool as protection against the hazard presented by the pinch point between the belt and roller. These undisputed facts prove a violation of section 3314(a).

The ALJ found that the conveyor had to be energized and, thus, "capable of movement" during the roller cleaning operation to enable the employee to clean the entire circumference of the roller. That finding is supported by the supervisor’s testimony that, otherwise, the portion of the roller in contact with the underside of the belt would not get cleaned and would leave a bump of sand on the roller that would cause the belt to bounce. Therefore, the Board accepts the finding as fact.

2. The Violation Was Correctly Classified as Serious.

To prove the violation was serious, the Division had to establish, by a preponderance of the evidence, that it was substantially probable that the violation could result in death or serious physical harm and that Employer knew of the violation or could have known of the violation by exercising reasonable diligence. (Labor Code 6432(a).)

The purpose of section 3314(a), as it applied to this case, was to protect the employee from getting a hand or body part caught in moving parts of the conveyor while cleaning the roller. The Division’s inspecting compliance officer testified that, in his experience, accidental contact with moving parts of such machinery resulted in death or serious physical harm "most of the time." His testimony was unrefuted. Additionally, the employee involved in this accident sustained severe injuries including broken bones in his arm and a dislocated shoulder, which required several days of hospitalization for treatment. This evidence proved it was substantially probable that the violation of section 3314(a) found to exist in this case could result in death or serious physical harm.

The supervisor testified that he directed the employee to use a shovel to scrape the roller and told him to keep his hands away from the roller when he made the assignment. He also testified that he was "under the impression" that the employee knew how to use a shovel to scrape sand off a roller without getting the shovel caught in the pinch point.

Apparently, the employee did not have that knowledge. Presumably, if he did, the shovel would not have been jammed in the pinch point a few minutes after he started scraping. The supervisor criticized the employee for getting the shovel stuck and told him to stand on a truck so he would be closer to the roller and have better control of the shovel. The employee did what the supervisor directed, but found it awkward to use the shovel from that position, and attempted to clean the roller with his hand.

The ALJ found that the shovel was an adequate extension tool while the employee was standing on the floor where he could not reach the roller with his hand but was inadequate when he stood on the truck and the roller and pinch point were within his reach. The position an employee must assume to use a tool may be considered in assessing the adequacy of the tool for the task assigned.

The injured employee had been working for Employer as a concrete mixer and driver for approximately four years at the time of the accident. The supervisor testified, without refutation, that shovels were commonly used to scrape rollers. No evidence was presented to show that using a shovel was an ineffective means of removing sand from a roller or had ever resulted in an injury to an employee. The purpose of having the employee stand on the truck, which shortened the distance he had to reach to bring the shovel blade in contact with the roller, was to allow him to shorten his grip on the handle and have better control of the blade. The employee's general comment that he found it awkward to use the shovel from the truck by itself does not prove that the shovel was, in fact, a poor tool for scraping the roller from that location. It is equally plausible that the shovel would have been safe for use from that position, if Employer had "thoroughly trained" the employee to use the shovel as a scraper.

The supervisor’s assumption that the employee knew how to use the shovel properly, his criticism of the employee’s misuse of the shovel, and his direction to the employee to use the shovel from a position closer to the hazardous pinch point, without more, does not support the contention that the employee was "thoroughly trained" to use the shovel as an extension tool. Instead, this evidence establishes that Employer, by exercising reasonable diligence, could have known the employee was not thoroughly trained to use the extension tool provided another element of the serious classification.

Here, though the roller cleaning proceeded without injury at the beginning, a violation of section 3314(a) existed throughout, because the employee performing the cleaning operation was not thoroughly trained to use the shovel as a scraper and the supervisor could have of known of that violative condition by inquiring before he made the assignment. Moreover, the supervisor knew the employee got the shovel caught in the pinch point minutes after he started the roller cleaning operation and that mishap put Employer reasonably on notice of a training deficiency.

Having found that the Division proved both elements of a serious violation, the Board further finds that the violation was correctly classified as serious. There is no contention that the proposed civil penalty was not properly calculated by the Division in accordance with the Director’s regulations. The Board therefore finds that a civil penalty of $3,500 is appropriate.

DECISION AFTER RECONSIDERATION

Employer’s appeal is denied, and a civil penalty of $3,500 is assessed.

BILL DUPLISSEA, Member JANET M. EAGAN, Deputy Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - April 12, 2000