EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of Chicken of the Sea International – Decision After Reconsideration

Employer uses a machine that has a conveyor belt. A mechanic who was making repairs to the machine suffered amputation of three fingers when the machine’s conveyor belt broke. Employer was cited for failure to lock out the machine during repair operations in serious violation of section 3314(b). It was undisputed that the machine was not locked out at the time of the injury, nor that it should have been locked out. Employer’s primary contention was that the independent employee act defense [IEAD] should apply. Four employees present at the incident had lock out training and lock out locks with individualized keys.
The parties stipulated that “(a)t the time of the accident and before, Employer had safety policies and procedures, which it actively enforced against employees who did not follow the safety procedures.” The Board found that the stipulated facts alone when supplemented by the hearing record did not establish element 3 of the IEAD because having an “active” program did not demonstrate required effective enforcement. Employer did not provide sufficient evidence to establish the third element because none of the four experienced and knowledgeable employees followed Employer’s safety rule, as would be expected if Employer effectively enforced its program, and because other evidence in the record raises questions which, if unrebutted or unaddressed by Employer’s evidence, suggest that its lockout program (a significant component of its overall safety program) was not effectively enforced.
Employer was also cited for a general violation of section 3314(f) for failure to have specific written lock out procedures for this machine. The Division requested a copy of the written lockout program for the machine and received a general outline consisting of training “overheads” and instructors’ notes which did not refer specifically to any machines or contain any specific lockout procedures. The citation for a general violation of section 3314(f) was upheld.

CHICKEN OF THE SEA INTERNATIONAL, 01-281
February 28, 2003