Occupational Safety and Health Review Commission and Administrative Law Judge Decisions

03/21/1996 - 93-2230 - Caterpillar, Inc.(3)

• Docket Number: 93-2230
• Standard Number: 1910.147
• Case Citation: 17 BNA OSHC 1584
• Company: Caterpillar, Inc.(3)
• Information Date: 03/21/1996

BEFORE: WEISBERG, Chairman, MONTOYA, Commissioner.

BY THE COMMISSION:

Following an inspection of Caterpillar, Inc.'s York, Pennsylvania plant by a compliance officer of the Occupational Safety and Health Administration ("OSHA"), the Secretary of Labor issued a citation alleging that Caterpillar had violated the OSHA standard at 29 C.F.R. 1910.147(c)(7)(iii)(A) by not giving lockout/tagout retraining to all employees who had been given new job assignments. The cited standard requires employers to provide lockout/tagout retraining to any employee who undergoes a change in job assignment that presents an energization hazard about which the employee has not previously been trained.(1) Caterpillar contested that citation, and a hearing was held before Administrative Law Judge John H. Frye, III. The judge considered the issue before him to be whether the Secretary had established that all maintenance mechanics were required to be retrained based on the incidents related by a number of employees. Although he found that the evidence established the need to give lockout/tagout retraining to two of these employees, the judge found the evidence insufficient to establish that all the maintenance mechanics had to be given retraining. He therefore vacated the citation. For the reasons below, we agree with the judge that the evidence establishes that two of Caterpillar's maintenance mechanics should have been given lockout/tagout retraining. To that extent, however, we set aside his vacation of the citation and find that Caterpillar was in violation.

FOOTNOTE(1) That section provides: 1910.147 The control of hazardous energy (lockout/tagout). .... (c) General-- .... (7) Training and communication. .... (iii) Employee retraining. (A) Retraining shall be provided for all authorized and affected employees whenever there is a change in their job assignments, a change in machines, equipment or processes that present a new hazard, or when there is a change in the energy control procedures.

I.

On or about January 1, 1993, the York plant underwent a reorganization. As a result, several skilled trades, including pipefitters, millwrights, welders, machine repairmen, and automotive equipment repairmen, were assigned the single job title of maintenance mechanic. The record establishes that, although many of the maintenance mechanics continued performing the same duties they carried out before the reclassification, some of them were given different job assignments, and they were all, at least theoretically, available to perform any job within that classification.

The first employee the judge found should have been retrained, Messersmith, had been a pipefitter for 20 years before his reclassification as a maintenance mechanic. On March 21, 1993, Messersmith was assigned to replace a broken cable on a sliding door on a Kearney and Trucker machine, a large computer-operated machine that performs several operations to transform a rough-cast part into a finished part. At the front of the machine, there are two pair of sliding doors that operate in tandem. The outer doors are pneumatically operated. Two feet beyond them is a second pair of doors, which open and close in conjunction with the outer doors but are cable-operated.

Messersmith discussed the problem with the machine's operator. When the machine had completed its cycle, the operator pushed the button or buttons to open the four doors and pushed the emergency stop button. When Messersmith approached the doors, for some unexplained reason, one of them remained in the closed position. Although the operator had told him which door had the broken cable, Messersmith assumed that the door that had not opened was the one in need of repair. Accordingly, he attempted to push it into the open position, where he could more easily work on it. As he was pushing against it, the door suddenly opened, causing Messersmith to fall and suffer minor injuries. Messersmith later learned that the door had opened because there was stored air pressure in the pneumatic cylinder, and said that he was unaware of this because he had not been trained about the lockout/tagout hazards associated with this machine before he was assigned to repair it.
The second employee, Durham, had been an automotive equipment repairman before the reclassification. Shortly after the reclassification, Durham was assigned to unclog a jam on the conveyor system that carries materials throughout the plant. There are over three miles of conveyors in the York plant, with numerous belts and motors. When a parcel on one belt reaches the end of that belt, it is moved onto another belt by "air actuators" or "pushers" so that it may continue on its way.(2) The pushers exert approximately 20 to 22 pounds per square inch of force.

FOOTNOTE(2) A "pusher" is a four-inch air cylinder that pushes horizontally through an 18-inch stroke to push a package from one belt to the next, similar to a pin-sweeper in a bowling alley.

Durham determined that the jam was at one of the pushers and removed the jammed parcels. The pusher was stopped in mid-stroke, and Durham testified that he believed the pusher was in neutral because it did not move after the packages had been removed. Because the parcels on the conveyor could not get past the protruding pusher, Durham attempted to push it back, out of the way. He could not reach it with his hand, so he used his foot. When he pushed on it, the pusher unexpectedly completed its cycle and pushed Durham backward. He fell down but was not injured. Durham had repaired conveyors before and had seen the pushers operating, but he had not been trained about how they operate or on deenergizing them.

This evidence establishes that Caterpillar did not comply with section 1910.147(c)(7)(iii)(A) because two employees were required to perform new jobs that exposed them to possible energization hazards about which they had not been trained. Contrary to the judge, we find that these two instances of noncompliance with the standard are sufficient to support a finding that a violation exists. See, e.g., Falcon Steel Co., 16 BNA OSHC 1179, 1183-87, 1993-95 CCH OSHD paragraph 30,059, p. 41,331-36 (No. 89-2883, 1993) (consolidated) (citation affirmed although two of four instances cited were found not to be violations). The Secretary has therefore established that Caterpillar was in violation.(3)

FOOTNOTE(3) Chairman Weisberg notes that the Secretary did not state a position on whether the retraining requirement under the standard is triggered by giving employees a new job title or by actually assigning an employee to work on an unfamiliar piece of equipment. Nevertheless, the Secretary has established that Caterpillar was in violation of the standard as to these two employees under either interpretation of the standard. Given the Secretary's failure to articulate his interpretation of the standard, and given that the record does not establish that any other employees were assigned to perform work on new machines for which they had not received appropriate training, the Chairman cannot find on this record a broader violation of the standard.

II.

The Secretary alleged that the violation was serious and proposed a penalty of $1,125. On review, neither party has addressed either the characterization or the appropriateness of the proposed penalty. Since the penalty is not in dispute, we affirm the violation as serious, and assess a penalty of $1,125.(4)

FOOTNOTE(4) Caterpillar argues that the judge erred in granting the Secretary's post-hearing motion to amend the citation to allege that the violation occurred during a period different from the dates alleged in the citation. Assuming, without deciding whether this issue was directed for review, we affirm the judge's granting of the amendment.
Although Caterpillar objected at the hearing to the Secretary's introduction of evidence about occurences on dates other than those specified in the citation, the company apparently cross-examined fully on those events and even presented a rebuttal witness to some of that testimony. Under the second part of Rule 15(b) of the Federal Rules of Civil Procedure, even though a party has objected to evidence, amendment shall be freely allowed when it furthers presentation of the merits at trial and the objecting party does not show that it would be prejudiced by the amendment. Neither at the hearing nor on review has Caterpillar alleged, much less demonstrated, that it was prejudiced in the presentation of its case by the amendment. The company has not pointed to any evidence that it could have presented that it was not able to present at the hearing. Under these circumstances, the judge did not err in granting the amendment.

Dated: March 21, 1996