BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

CARRIS REELS OF CALIFORNIA
P. O. Box 88
Madera, California 93639

                                    Employer

Docket No. 95-R4D5-1456

 

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 Carris Reels of California (Employer), makes the following decision after reconsideration.

JURISDICTION

Between March 22 and April 4, 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 904 West Betteravia, Santa Maria, California (the site).

On April 13, 1995, the Division issued to Employer a citation alleging a serious violation of section 3328(e) [unsecured equipment component] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations, and proposing a civil penalty of $4,000.

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

After a hearing before an Administrative Law Judge (ALJ) of the Board a decision was issued on November 7, 1997 denying Employer's appeal.

On December 4, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. On January 7, 1998, the Division filed an answer and the Board granted the petition and stayed the ALJ’s decision pending reconsideration.

ISSUE

Does Section 3328(e) apply to the facts of this case?

EVIDENCE

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 two through four of the ALJ’s decision.

Employer assembles and sells large wooden cable reels. A cable reel resembles a giant spool. The cable is wound around a cylinder or roller. Two large flanges on the ends of the central cylinder form the ends of the spool and keep the cable on the central cylinder. The accident occurred in this case when an employee attempted to a move a single 90-inch diameter flange across a room by rolling it without the assistance of any other employee or any equipment to support or stabilize the flange. The flange was 7 feet high and weighed 350 pounds. The employee lost control of the flange and it fell over on him, causing fatal injuries.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 3328, captioned "Machinery and Equipment," reads, in its entirety, as follows:

(a) Machinery and equipment shall be of adequate design and shall not be used or operated under conditions of speeds, stresses, or loads which endanger employees.

(b) Machinery and equipment in service shall be inspected and maintained as recommended by the manufacturer where such recommendations are available.

(c) Machinery and equipment with defective parts which create a hazard shall not be used.

(d) Machinery and equipment designed for a fixed location shall be restrained so as to prevent walking or moving from its location.

(e) Machinery and equipment components shall be designed, secured, or covered to minimize hazards caused by breakage, release of mechanical energy (e.g., broken springs), or loosening and falling.

(f) Any modifications shall be in accordance with (a) and with good engineering practice.

(g) Machinery and equipment in service shall be maintained in a safe operating condition.

(h) Only qualified persons shall be permitted to maintain or repair machinery and equipment.

The Division cited Employer on the theory that the flange was a "component" of "equipment" [the unassembled reel] and that Employer violated section 3328(e) by not "securing" the flange against "falling" while the employee was rolling it to the assembly point.

In Board proceedings, the Division has the burden of proving the applicability of the safety order it cites to the facts of the alleged violation.

The Division has not proven that the safety order it cited, section 3328(e), applies. In the Board’s view, section 3328(e) does not, and was not intended by the Standards Board, to extend to the facts of this case. Subsections (a) through (h) protect employees against the hazards of improper design, use, maintenance and repair of machinery and equipment that is "in service," i.e., operated or used by employees in the service of their employers. The flange was to become a part or "component" of a reel. A completed reel was the product sold to customers. The flange was not and would not be used or operated by Employer's employees. Thus, the employees would not be exposed to the hazards of improper design, use, maintenance, and repair of the flanges against which section 3328 provides protection.

Moreover, the inapplicability of subsection (e) to the facts of this case is clear based on the express terms of the subsection. It mandates employee protection against the breakage of machinery and equipment components, their release of mechanical energy, or their "loosening and falling," by the proper design, securing, and covering of components.

A machinery part or equipment component cannot loosen and fall before it is secured or attached to something from which it can come loose. The Occupational Safety and Health Standards Board's (Standards Board) use of the conjunctive in this context clearly indicates that it intended subsection (e), like all other parts of section 3328, to protect employees against design, use, maintenance, and repair hazards within the components of machinery and equipment that are "in service," that is, used to perform work. Section 3328(e) does not address hazards arising solely from the handling of components of products or goods produced when no machinery or tools are involved.

The flange in this case was a component of Employer’s product, not a piece of equipment used by Employer as a tool or as a part of its production machinery. It therefore does not come within the scope of section 3328(e).

The Standards Board has adopted safety orders governing the handling of specific materials or cargo, as it has in section 3467, Log Handling, part of Article 14, Marine Terminal Operations. The Standards Board has not adopted a safety order specifically governing the movement of objects such as the cable reel flange in a production or warehousing facility. One potentially applicable safety order the Standards Board has adopted is section 3704, part of Article 27 of the General Industrial Safety Orders, "Transportation of Employees and Materials." Section 3704 provides:

Securing Loads.

All loads shall be secured against dangerous displacement either by proper piling or other securing means.

While many of the provisions of Article 27 refer to the use of motor vehicles to transport employees and materials, nothing in Article 27 or section 3704 restricts section 3704 to motor vehicle operations.

The Division in this case had initially also cited Employer for violation of section 3203(a)(7)(B) [failure to provide an adequate illness and injury prevention program]. The Division chose not to proceed under section 3203(a)(7)(B), withdrawing it as duplicative of the section 3328(e) citation. Section 3203 requires employers to establish procedures to identify workplace hazards like moving the flanges and to train employees to avoid those hazards.

The Board has found a failure to train employees and provide means for the safe handling of materials being worked on to violate section 1509(b). Section 1509 is the illness and injury protection program section applying to the construction industry that parallels section 3203, the General Industrial Safety Order illness and injury prevention program requirement the Division initially cited in this case but withdrew.

In Hood Corporation, a pipeline installation contractor’s employees moved sections of pipe off of trucks and into position on construction jobsites. This task is analogous to Employer’s employees transferring the large flanges used on the cable reels around its facility. The Board found the contractor’s failure to develop safe methods and training for this process to be a serious violation of section 1509(b). The Board said:

The stated goal of the Occupational Safety and Health Act in general (Labor Code 6400), and the accident prevention program in particular, is to prevent injuries and deaths on the job. It is the duty of the Employer to adopt safe methods of carrying out whatever tasks employees are assigned to perform at the place of employment. Committing these methods to writing is essential, since an employee must be trained in job safety just as he or she must be trained to perform specific tasks. Often, the most needed safety rules are those governing recurring tasks that are secondary to the primary job being performed. . . .

Either section 3704 or 3203 may have covered this violation; section 3328(e) clearly does not. However, unless the Division issues a citation under an appropriate safety order and presents evidence in support of the citation, the Board is unable to find a violation.

Finally, if the Division believes that Employer’s operation cannot be made safe by the application of an existing safety order, it has statutory authority to protect the employees by issuing a special order under Labor Code section 6305(b), which defines "special order" as follows:

. . . any order written by the chief or the chief’s authorized representative to correct an unsafe condition, device, or place of employment which poses a threat to the health or safety of an employee and which cannot be made safe under existing standards or orders of the standards board. These orders shall have the same effect as any other standard or order of the standards board, but shall apply only to the employment or place of employment described in the written order of the chief’s authorized representative.

The Board concludes that the Division failed to prove a violation of section 3328(e), and reverses the decision of the ALJ finding a violation of that section.

DECISION AFTER RECONSIDERATION

Employer’s appeal is granted. The ALJ’s decision is reversed and the citation for violation of section 3328(e) and its related civil penalty are set aside.

                BILL DUPLISSEA, Member   MARCY V. SAUNDERS, Member

            SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - December 6, 2000