Occupational Safety and Health Review Commission and Administrative Law Judge Decisions

09/14/1993 - 90-1341 - Westvaco Corporation

• Docket Number: 90-1341
• Standard Number: 1910.147
• Case Citation: 16 BNA OSHC 1374
• Company: Westvaco Corporation
• Information Date: 09/14/1993

DECISION

BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.

BY THE COMMISSION:

The Occupational Safety and Health Administration ("OSHA") issued to Westvaco Corporation ("Westvaco") a citation alleging a serious violation of the lockout/tagout standard at 29 CFR 1910.147(c)(1).(1) In this citation, OSHA charged that Westvaco failed to lockout(2) the slotter section of a printer/slotter machine to protect its employee from the unexpected energizing of the entire machine.(3) At the time of the inspection, the employee, whose job title is "the helper," was making adjustments to the slotter section between production runs. The Secretary does not dispute that the low level of energy that the helper uses in making these adjustments does not pose a hazard. Westvaco argues that the standard does not apply because the helper's adjustments come within the specific exception to the lockout/tagout standard found at the end of 29 CFR 1910.147(a)(2)(ii).

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FOOTNOTE(1) Section 1910.147(c)(1) provided at the time of the inspection and the issuance of the citation as follows:

1910.147 The control of hazardous energy (lockout/tagout).
...

(c) General--

(1) Energy control program. The employer shall establish a program consisting of an energy control procedure and employee training to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, Start up or release of stored energy could occur and cause injury, the machine or equipment shall be isolated, and rendered inoperative....

This standard was amended about six months after the citation was issued, see 55 Fed. Reg. 38,685-86 (1990), but Westvaco does not claim that any of those changes affect this case.

FOOTNOTE(2) The term "lockout" is defined at 29 CFR 1910.147(b) as:

The placement of a lockout device on an energy isolating device, in accordance with an established procedure, ensuring that the energy isolating device and the equipment being controlled cannot be operated until the lockout device is removed.

The definition of "lockout device" in that same section provided at the time of the inspection and citation as follows:

A device that utilizes a positive means such as a lock, either key or combination type, to hold an energy isolating device in the safe position and prevent the energizing of a machine or equipment.

Although it does not affect this case, that definition was amended in 55 Fed. Reg. 38,685 (1990).

FOOTNOTE(3) The record in this case concerns only lockout as a means of controlling hazardous energy. However, as its name implies, the lockout/tagout standard permits employers to control hazardous energy by using a tagout system in certain circumstances. Under 29 CFR 1910.147(c)(2)(i), an employer shall use a tagout system "[i]f an energy isolating device is not capable of being locked out." If an energy isolating device is capable of being locked out, the employer must use lockout "unless the employer can demonstrate that the utilization of a tagout system will provide full employee protection as set forth in paragraph (c)(3) of this section." 29 CFR 1910.147(c)(2)(ii). See 29 CFR 1910.147(c)(3)(i) and (ii).

Review Commission Administrative Law Judge Edwin G. Salyers concluded that Westvaco did not prove that it comes under the exception. He affirmed the citation item (4) and characterized it as serious. He assessed a penalty of $560, as OSHA had proposed. The issues before the Commission are: (1) whether the judge erred in concluding that Westvaco did not establish that the helper's adjustments fall under the exception in the standard; (2) whether Westvaco proved that compliance was infeasible; and (3) whether the judge properly characterized the violation as serious.

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FOOTNOTE(4) The judge noted that, in response to challenges to the lockout/tagout standard filed by labor and industry, the D.C. Circuit remanded the case to OSHA to further consider certain aspects of the standard's promulgation. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991). The judge correctly stated that the court decision has no effect on the outcome of the present case because, in its subsequent order on September 16, 1991, the D.C. Circuit refused to stay application of the standard during the remand period. Since the judge's decision was issued, the Secretary published his "Supplemental Statement of Reasons" in response to the court's remand order. 58 Fed. Reg. 16,612-23 (March 30, 1992).

On May 27, 1993, an industry party filed a motion with the D.C. Circuit seeking vacation of the standard or suspension of enforcement. National Association of Manufacturers v. Reich, Docket Nos. 89-1559, 89-1657, & 90-1553. 23 BNA OSHR 4-5 (June 2, 1993). On June 17, 1993, the Secretary filed a response with the court in which he defended his rulemaking and asked the court to dismiss the motion. 23 BNA OSHR 86-67 (June 23, 1993).

I. Background

A. Facts

Westvaco manufactures corrugated paperboard containers at its plant in Eaton, Ohio. The printer/slotter machine prints on, scores, and slots sheets of corrugated paperboard that can then be folded into trays for holding cans. Two Westvaco employees work at the machine, the operator and the helper. During a production run, the helper feeds sheets of corrugated paperboard into the machine. The machine moves the sheets to the "printing section," where graphics of one color are printed at the first print station, and, if required, graphics of another color are printed at the second station.

Then, at the "slotter section" sheets move through a series of upper and lower shaft heads fitted with corresponding knives and slots that cut them into smaller sheets, inscribe scoring lines, and cut slots on the sides of the sheets. After the sheets have moved through the machine, the operator inspects the finished product at the stacking area.

Because each order for cartons from Westvaco's customers is unique in terms of printed matter and size, adjustments to both the printer section and the slotter section must be made for each order. The typical order ranges from 10,000 to 100,000 trays. The machine completes an order for 10,000 trays in approximately two hours. Because the average number of orders run per day is three or four, and adjustments to the slotter and printer sections are necessary before each order, adjustments are made three or four times a day. The adjustments, which take between 15 and 45 minutes to complete, are made by the operator and the helper between production runs. The operator adjusts the printer section, while the helper adjusts the slotter section.

Before the helper adjusts the slotter section, he activates the twist lock stop at the feed (opposite) end of the machine, presses one of the two mushroom stop buttons located at each side of the slotting section, and then raises the "layboy arms" used in transporting the corrugated sheets.(5) The helper then adjusts the shaft heads in the slotting section by positioning the six knife heads on each upper shaft, and their corresponding slotted heads on the lower shaft. The helper uses a T-wrench, or Allen wrench, to work in between the shafts and adjust the heads about one-eighth to three-sixteenths of an inch to meet customer specifications. Each time an adjustment to a head is made, the helper must visually determine whether the slot and knife are lined up properly by activating the jog control button, which causes the heads to move at a slow speed.

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FOOTNOTE(5) This is the procedure that the helper followed at the time of the OSHA compliance officer's complaint investigation; it represents the cited condition. After that investigation, a hinged barrier guard was installed that covers the slotter section. When the helper raises this barrier guard to reach the area requiring adjustments, the metal on the guard is detected by a sensing device that activates another stop control, which is on the same circuit as the stop buttons. According to the Secretary's expert witness, William Murphy, whose qualifications are discussed later, see infra note 15, this guard is not "interlocked" because there is no electrical device that actually locks the guard in place.

In order to provide an opening for access to the area where he will change the ink and printing plates, the operator separates the machine by sliding the printer section, which moves on rails, away from the slotter section.(6) When the machine is separated, the slotter section is disconnected from the printer, and the flow of energy to both sections is cut off except for a small amount of power that allows the helper to jog the heads at a slow speed at the slotter section and permits the ink at the printing section to continually circulate to keep it from drying out.

FOOTNOTE(6) After the compliance officer's investigation, Westvaco installed a key-operated switch at the location where the machine separates. After separating the machine, the operator maintains exclusive control of the key until the machine is once again together.

B. Main Contentions of the Parties

According to the Secretary, Westvaco violated section 1910.147(c) because the helper was making adjustments to the slotter section of the printer/slotter machine, where unexpected energizing of the entire machine could occur, without the protection of an energy control program that would isolate the machine and thereby render it inoperative. More specifically, the Secretary bases the alleged violation on Westvaco's failure to lockout the slotting section while the helper made his adjustments.

Westvaco claims that it was not required to provide an energy control program to protect the helper because it is covered by the exception to the requirements of the lockout/tagout standard at the end of 29 CFR
1910.147(a)(2)(ii), which provides:

II. Did Westvaco Prove that the Helper's Adjustments
Fall Within the Exception?

The party claiming the benefit of an exception bears the burden of proving that it comes within that exception. E.g., Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993 CCH OSHD 30,059, p. 41,329 (No. 89-2883, 1993) (consolidated); Dover Elevator Co., 15 BNA OSHC 1378, 1381, 1991 CCH OSHD 29,524, p. 39,849 (No. 88- 2642, 1991).

FOOTNOTE(7) The preamble to the proposed rule, 53 Fed. Reg. 15,498 (1988), reads as follows:

The proposed rule designated as 29 CFR 1910.147(a)(2)(iii)(B) provided:

FOOTNOTE(8) In the preamble to the final standard, 54 Fed. Reg. 36,661 (1989), OSHA recognized that "the proposed provision was not clear enough" concerning the types of operations meeting, or not meeting, the exception and the criteria to be applied in each situation. The preamble clarified that:

54 Fed. Reg. 66,661-62. OSHA also noted the problems that arose from the proposed rule's requirement that the employer demonstrate that it was necessary to perform the operation with the machine energized. After recognizing that "some servicing operations must be performed with the power on," OSHA did not deem it necessary in the final exception to require that demonstration by the employer. 54 Fed. Reg. 36,661

FOOTNOTE(9) The sentence in the preamble to the amendments to the final rule at 55 Fed. Reg. 38,679, upon which Westvaco particularly relies for its category (2), specifically recognizes this requirement: "Safeguarding for minor servicing during normal production operations may include, for example, interlocked barrier guards, local disconnects or control switches which are under the exclusive control of the employee performing the minor servicing...." (emphasis added)

In his decision, the judge noted that "normal production operations" is defined in 29 CFR 1910.147(b) as "[t]he utilization of a machine or equipment to perform its intended production function." Finding this definition rather vague, he focused on the definition of setting up" in 29 CFR 1910.147(b), which reads: "[a]ny work performed to prepare a machine or equipment to perform its normal production operation." The judge noted that "setting up" is listed as an activity under the definition of "servicing and/or maintenance" in section 1910.147(b), (10) and that servicing and maintenance activities are expressly covered by the lockout standard, under 29 CFR 1910.147(a)(2)(i). He stated that, based on the plain meaning of the exception and these definitions, "work performed on the machine while the machine is not being operated to actually produce its product is either servicing or maintenance."

The judge further stated that work that is performed before the normal production operation in order to prepare the machine for production is a specific service activity, called setting up. Setting up does not occur during normal production operations. Therefore, setting up cannot, by definition, fall within the exception to 1910.147(a)(2)(ii).

(Emphases added).

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FOOTNOTE(10) "Servicing and/or maintenance" is defined in section 1910.147(b) as:

Workplace activities such as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines or equipment. These activities include lubrication, cleaning or unjamming of machines or equipment and making adjustments or tool changes, where the employee may be exposed to the unexpected energization or startup of the equipment or release of hazardous energy.

(First emphasis added).

He concluded that the helper's adjustments come under the definition of "setting up" because they "were made to customize each individual order; the adjustments prepared, or set up, the machine for the next order, or production operation. " He relied on the preamble at 55 Fed. Reg. 38,680 (1990), amending the final rule's preamble at 54 Fed. Reg. 36,667 (1989) to read:

Anything that is done to prepare a machine or equipment to perform its normal production operation, such as changing a machine part (e.g., changing the blade of a power saw), is not considered utilization of a machine or equipment and is classified as servicing or maintenance rather than normal production operations.

The judge stated that "[h]aving determined that the helper's adjustments fall within the definition of `setting up,' a service activity that is not a part of normal production operation[s], it is concluded that the helper's adjustments are not covered by the exception...."

Westvaco's Arguments

Westvaco contends that the judge erred in interpreting the standard when he held that the exception could not apply to activity that he characterized as setting up, and that the exception applies only to servicing that is performed while the machine is actually making a product.(11) It maintains that "[a]ny type of servicing, including set up, could fall within" the exception as long as the exception's other criteria are met. It argues that, contrary to the judge's narrow interpretation, the language in the exception "focuses on the nature of the work being performed, not on the moment in time when the work occurs." Westvaco asserts that the helper's adjustments affect the size of the product and "are made when production moves from one customer order to another." It likens the helper's adjustments to "chang[ing] the speed of the machine by adjusting belt drives or other components which are normally guarded" or "adjust[ing] the movement of a long-bed milling machine worktable," which are recognized in the amended preamble as meeting the exception where effective alternative safeguarding is provided. 55 Fed. Reg. 38,680 (1990), amending 54 Fed. Reg. 36,666 (1989). Westvaco argues that machine speed changes and worktable adjustments are activities that could be performed either between orders, like the helper's adjustments, or while a particular order is running.

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FOOTNOTE(11) Westvaco does not discuss separately each of the three elements of the exception at issue (whether the adjustments are minor, made during normal production operations, and whether effective alternative protection was provided). Rather it presents most of its contentions by combining its discussion of all three factors in the exception at issue in this case, and sometimes including factors not in dispute (whether the adjustments are routine, repetitive, and integral to the use of the machine).

Thomas Seagraves, Westvaco's production manager, testified that the production cycle consists of the time it takes to make the adjustments to the slotter and printer sections together with the time to actually process the order through the press. Westvaco asserts, as Seagraves testified, that the inclusion of the adjustments in the normal production operations is underscored by the fact that the adjustments are performed by production employees, not maintenance personnel.

Discussion

The judge found that the helper's adjustments of the shaft heads to accommodate each customer's specifications in anticipation of the next production run is "setting up," or, as defined in the standard, "work performed to prepare a machine or equipment to perform its normal production operation." (emphasis added). We agree with this determination. We reject Westvaco's claim that this element of the exception focuses only on the nature of the work being performed and not on the moment in time when the work occurs. While the nature of the work is important to consider, in this case the fact that the work is done prior to production runs is critical in determining if the adjustments are made during normal production operations.

The plain meaning of the word "prepare" as it is used to define "setting up" in section 1910.147(b) includes the idea of activity before some event. One dictionary defines "prepare" as "to make ready beforehand for some purpose." Webster's Third New International Dictionary 1790 (1986 unabridged). Under this definition, the helper's adjustments to the shaft heads are clearly done to "prepare" the printer/slotter machine for normal production operations.

Furthermore, adjustments made to prepare for normal production operations cannot, at the same point in time, be adjustments that are made "during normal production operations." (emphasis added). Work performed "during" is defined as work "at some point in the course of." Id. at 703. Such work occurs at a different time than adjustments made "beforehand," or while setting up. Based on this definitional distinction, we reject Westvaco's argument that the judge erred in finding that the exception cannot apply to setting up.(12) Therefore, we conclude that because the helper's adjustments constituted setting up," they cannot, based on the standard's definition of that term, be considered to take place "during normal production operations."(13) See, e.g., Globe Industries, Inc., 10 BNA OSHC 1596, 1598, 1982 CCH OSHD 26,048, p. 32,718 (No. 77-4313, 1982)(Commission should give reasonable, common-sense interpretations to standards), and cases cited therein. In light of this disposition, we need not reach Westvaco's argument concerning the judge's further finding that the exception applies only to work performed on the machine while the machine is actually making its product.

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FOOTNOTE(12) The judge further suggested, in reliance on the quoted portion of the preamble at 55 Fed. Reg. 38,680, that setting up automatically falls outside the exception because it is "servicing," a type of activity to which the standard applies. We agree with Westvaco that this reasoning is inappropriate. While it is true that the lockout/tagout standard is generally applicable to servicing and maintenance, not to normal production operations, what is at issue here is an exception to the standard's general applicability provisions. The exception provision at issue here recognizes that there are certain types of servicing that must be done during normal production operations, and, for those activities, the standard does not apply if the other requirements of the exception are established.

FOOTNOTE(13) We note that our ruling here is limited to the definitional distinction that prevents an activity that qualifies as "setting up" from also being an activity that takes place "during normal production operations." Other types of "servicing and/or maintenance" work listed in that term's definition, see supra note 10, such as unjamming of machines," could, depending on their respective definitions, be done during normal production operations.

To prove that its case comes within the exception, the employer must show that the adjustments are minor and made during normal production operations, and that effective alternative protection is provided. In light of our determination above that Westvaco failed to prove that the helper's adjustments were made during normal production operations, we conclude that Westvaco has not proven that its case falls within the exception at the end of section 1910.147(a)(2)(ii). Therefore, we need not reach the other factors in dispute, whether the adjustments are "minor" and whether they are made "using alternative measures which provide effective protection."

Based on the above, we conclude that Westvaco has failed to prove that the helper's adjustments fall within the exception at the end of section 1910.147(a)(2)(ii). Accordingly, we find that the cited standard, section 1910.147(c)(1) applies, and that, as Westvaco acknowledges, its terms were not met because the slotter section was not locked out.

III. Did Westvaco Prove the Infeasibility Defense?

To prove the affirmative defense of infeasibility, the employer must show that "(1) literal compliance with the terms of the cited standard was infeasible under the existing circumstances and (2) an alternative protective measure was used or there was no feasible alternative measure."(14) Mosser Constr. Co., 15 BNA OSHC 1408, 1416, 1992 CCH OSHD 29,546, p. 39,907 (No. 89-1027, 1991), citing Seibel Modern Mfg. & Welding Corp. 15 BNA OSHC 1218, 1226, 1228, 1991 CCH OSHD 29,442, pp. 39,682 & 39,685 (No. 88-821, 1991).

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FOOTNOTE(14) An affirmative defense ordinarily must be initially pleaded by the employer in its answer, according to Rule 36(b) of the Commission's Rules of Procedure, 29 CFR 2200.36(b). Westvaco did not specifically raise the particular affirmative defense of infeasibility in its answer. However, the Secretary does not take issue with its inclusion as an issue in the direction for review. Because the issue has been briefed by the parties, we will consider it. See generally Bill C. Carroll Co., 7 BNA OSHC 1806, 1810, 1979 CCH OSHD 23,940, pp. 29,032-33 (No. 76-2748, 1979)(Secretary on notice about unpreventable employee misconduct contention). See Rule 107 of the Commission's Rules of Procedure, 29 CFR 2200.107.

Westvaco generally contends that compliance would not be feasible because energy was required to jog the heads in the slotter section and to keep the ink circulating in the printer section. However, as discussed above, the Secretary does not contend that the energy required for the jog mode posed a hazard to the helper, or that the energy required for ink circulation posed a hazard to the operator. Rather, the Secretary asserts that the energy against which the helper needs protection is the energization of the entire machine.

Westvaco also argues that it would be infeasible to implement the abatement measures suggested by the Secretary's witnesses compliance officer Jack Peterson, who conducted the complaint investigation, and expert William Murphy, the Area Director for the OSHA Cincinnati Office, who conducted the discovery inspection.

William Murphy, who was qualified by the judge as an expert in the lockout/tagout field,(15) testified that Westvaco could abate the violative condition by installing a hasp and small lock on the slotter gear at the point where the machine separates. He stated that, with the hasp installed, the machine could not be accidentally closed up once the separation had been accomplished.

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FOOTNOTE(15) Murphy had been Area Director of the OSHA Cincinnati Office since 1979. He testified as follows concerning his background and experience in lockout. He had worked as an OSHA compliance officer from 1973 until 1977, when he became a supervisor of compliance officers. Prior to his OSHA jobs, he worked on machines that performed the same functions as the printer/slotter machine at issue here. At OSHA Murphy developed a sheet on lockout policy under section 5(a)(1)  of the Act, 29 U.S.C. 654, the general duty clause, that was used by his own as well as other OSHA offices within OSHA's Region V. He also conducted numerous training sessions and seminars on lockout for such organizations as the National Safety Council and the General Motors UAW Training Center. He also had been an instructor in machine guarding, including lockout, at OSHA's training institute in Illinois. When the draft lockout/tagout standard was issued, he provided comments on it for his own office, which were submitted as the Region's comments. In those comments, he focused on the exception at issue here, when minor adjustments take place during normal production operations.

After the Secretary moved at the hearing to have Murphy qualified as an expert, Westvaco's counsel conducted a short voir dire, during which Murphy stated that the lockout cases in which he had been previously qualified as an expert were brought under section 5(a)(1) because they preceded the issuance of the standard at section 1910.147. Westvaco did not object to having Murphy certified as a lockout expert.

Westvaco's production manager Seagraves acknowledged in his testimony that installation of the hasp and lock would "prevent the drive train from activating itself." However, he expressed the view that "clos[ing] one section of the press onto the other with this bulky item in between" could possibly break the gears. When asked on cross-examination about his testimony that the hasp and lock would wreck the gears, Seagraves responded that "we've had discussions about it. We have not gone to the extent of putting that particular type of guard on the machine."

The judge found that Murphy's suggestion was "both simple and expedient." He determined that there was "nothing in the record that would preclude" use of the small lock and hasp on the slotter gear to protect the helper.

Although Seagraves speculated that the gears could be wrecked if the machine were closed with the hasp and lock between the sections, this would seem to occur only if the sections were accidentally pushed back together. Without further explanation, Seagraves' speculation does not rebut Murphy's testimony that the hasp and lock would be a feasible means to abate in compliance with the standard.(16) We therefore agree with the judge and conclude that, based on the testimony above, Westvaco has not proven by a preponderance of the evidence that Murphy's suggested abatement measure would be infeasible.

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FOOTNOTE(16) As noted above, following the compliance officer's investigation, the basis for the citation item at issue here, Westvaco installed a key-operated switch at the separation point of the printer/slotter machine. See supra note 6. Murphy observed that switch during his discovery inspection, noting that the operator kept the key after separating the machine. He opined that, although it would not technically satisfy the standard, Westvaco could provide the helper with effective alternative protection from the hazard of unexpected energization under these changed conditions by entrusting the key to the exclusive control of the helper, who generally takes more time to make his adjustments than the operator.

In addition to Murphy, the compliance officer offered testimony concerning a suggested means of abatement. However, because we find that Westvaco has not established that Murphy's suggestion was infeasible, we need not reach Westvaco's argument that the separate disconnect feature proposed by the compliance officer was infeasible. Nor do we need to consider whether Westvaco established the second element of the defense, that it provided an alternative protective measure.

Having concluded that Westvaco failed to prove that at least one of the suggested means of abatement was infeasible, we determine that Westvaco has not proven the affirmative defense. We therefore find that Westvaco violated section 1910.147(c)(1).

IV. Was the Violation Properly Characterized as Serious?

The judge rejected Westvaco's claim that, if a violation were found, it should be characterized as de minimis. He stated that such a characterization is proper only where there is a negligible relationship to safety and health and abatement would be inappropriate. The judge stated that the helper was left unprotected while making his adjustments to the shaft heads, and his hands were in the immediate area of the slotting, scoring, and trim knives. Finding that the helper faced the hazard of his hands being crushed or amputated, the judge determined that the violation had more than a negligible relationship to safety; he classified it as serious.

Westvaco argues that the judge erred in characterizing the violation as serious, thereby rejecting its argument that the violation was de minimis.

A de minimis violation is one having no direct or immediate relationship to employee safety, where "the hazard is so trifling that an abatement order would not significantly promote the objectives of the Act." Dover Elevator Co., 15 BNA OSHC at 1382, 1991 CCH OSHD at p. 39,850. Here the hazard is not a trifling one. The unexpected energization of the machine could injure the helper, even causing amputation. Because an abatement order would eliminate this hazard, we conclude that the violation is not de minimis. We also conclude that the judge properly characterized the violation as serious under section 17(k) of the Act, 29 U.S.C. 666(k), because there is a substantial probability that serious physical harm could result if unexpected energization occurred.

V. Order

For the reasons stated above, we conclude that Westvaco committed a serious violation of the lockout/tagout standard at section 1910.147(c)(1). Having considered the penalty factors in section 17(j) of the Act, 29 U.S.C. 666(j), we find the penalty of $560 proposed by OSHA and assessed by the judge to be appropriate. We therefore assess a penalty of $560 for the violation of section 1910.147(c)(1).

It is so ordered.

Dated: September 14 1993