SECRETARY OF LABOR, |
|
Complainant, |
|
v. |
|
THE TIMKEN COMPANY, |
OSHRC
Docket No. 97-1457 |
Respondent, USWA, GOLDEN LODGE, LOCAL
NO. 1123, Authorized
Employee Representative. |
|
Before: RAILTON,
Chairman; ROGERS, Commissioner.
BY THE COMMISSION:
This
case is before the Occupational Safety and Health Review Commission under 29
U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act, 29
U.S.C. §§ 651-678 (“the Act”). At issue is whether Timken violated two
requirements under the hazardous energy control (“lockout/tagout”) standard, 29
C.F.R. § 1910.147, at Tim-ken’s steel plant on Gambrinus Avenue in Canton,
Ohio.
The
case arose from an inspection of that facility by the Secretary of Labor’s
Occupational Safety and Health Administration (“OSHA”), following a serious
injury to Thomas Lawson, a mechanical maintenance employee at the Piercing Mill
in Tube Mill No. 3. Timken was engaged in manufacturing and producing tapered
rolling bearings and alloy steels at the plant. Red hot steel billets were
converted into tubes at the Piercing Mill. The basic process performed at the
mill was that a billet arrives from a
center punch and was rolled down into a trough in front of the mill. The billet
was then passed through the mill, where a water-cooled ram was plunged through
the middle of the billet to form it into a tube.
On
March 12, 1997, Lawson and his fellow employee Ernie Young responded to a
troubleshooting whistle at the mill. They found that a hydraulic hose adjacent
to the trough and mill was leaking. Young turned the switch for the mill’s
hydraulic system off, placed his lock on it, and pushed the emergency stop
button on the console of the mill operator’s pulpit. Lawson and Young had
determined that this was going to be a simple repair, which would take
approximately five minutes. Lawson was not able to reach the bottom of the hose
while standing on the floor, so he stood on the gorge adjust shaft, which was
10-12 inches off the floor. Mr. Young stood nearby on a spindle. As Mr. Lawson stood there, the
plugger operator, who could not see Lawson or Young from his operating position
and was apparently unaware that the servicing work was in process, activated
the gorge adjust shaft to adjust the rolls. When the shaft began rotating,
Lawson’s leg went over it, causing his clothes to become wrapped around it, and
causing serious injuries.
The
Secretary alleged in item 1(a) of her citation to Timken that at Tube Mill No.
3, “authorized employees were not properly advised in the recognition of
applicable hazardous energy in that the proper lockout procedures were not
applied so that all parts of the piercing mill were adequately locked out,” in
violation of section 1910.147(c)(7)(i). Citation item 1(b) alleged a violation of section 1910.147(d)(2) in the following manner: “Equipment at the #3 tube mill was not
completely locked out, the rod and shaft were still activated exposing
employees to injury.”
Commission
Administrative Law Judge Covette Rooney affirmed serious violations of the
employee training requirement at section 1910.147(c)(7)(i) and the lockout
application requirement at section 1910.147(d)(4). She assessed the Secretary’s proposed combined penalty of $5000 for
those violations. Timken petitioned for review on the grounds: (1) that the
injured employee had been properly trained but chose to take shortcuts on the
repairs at issue, and he was properly disciplined for that mistake; (2) that
Timken was prejudiced by the post-hearing amendment, which for the first time
alleged a violation of section 1910.147(d)(4); and (3) that that provision “has
nothing to do with the implementation of a lockout/tagout procedure.”
---------
The
two participating Commission members are divided on the appropriate disposition
of this case on the merits. However, section 12(f) of the Act, 29 U.S.C.
§ 661(e), requires that official action of the Commission must have the
affirmative vote of two members. To resolve this impasse, the Commission herein
vacates the direction for review, thereby allowing the judge’s decision and
order to become the final appealable order of the Commission with the
precedential value of an unreviewed judge’s decision. See, e.g., Texaco,
Inc., 8 BNA OSHC 1758, 1760, 1980 CCH OSHD ¶ 24,634, p. 30, 218
(Nos. 77-3040 & 77-3542, 1980); see Rust Engineering Co., 11 BNA
OSHC 2203, 2205, 1984-85 CCH OSHD ¶ 27,023, p. 34,777 (No. 79-2090,
1984). See also sections 10(c), 11(a) and (b), and 12(j) of the Act, 29
U.S.C. §§ 659(c), 660(a) and (b), and 661(i). Accordingly, the direction
for review is vacated. However, the separate opinions of the two participating Commission
members follow.
It is so ordered.
/s/
W.
Scott Railton
Chairman
/s/
Thomasina
V. Rogers
Commissioner
Dated: November
15, 2004
Separate Opinion of Chairman Railton
A. Timken Complied
with the Training Requirements of the Lockout/Tagout Standard
I
would vacate item 1(a) of the citation. In that item, the Secretary alleged
that Timken failed to train authorized employees -- mechanical maintainers --
in the “proper lockout procedures . . . so that all parts of the piercing mill
were adequately locked out,” in violation of section 1910.147(c)(7)(i)(A). The
charge relates to specific machines in the plant. As such, the charge implies
that section 1910.147(c)(7)(i)(A) requires an employer to train its authorized
maintenance employees on the proper lockout procedures for specific pieces of
machinery wherever they perform their duties throughout the entire plant. In
other words, it calls for machine-specific training. The regulatory history for
the training provisions of the lockout/tagout (LOTO) standard does not,
however, support training to the extent called for in this citation. Moreover,
the lockout training Timken provided to its authorized employees was sufficient
for compliance purposes under the cited standard.
The
LOTO standard defines three categories of employees who may be exposed to
conditions involving the lockout of hazardous energy sources. The standard
requires that employers have a LOTO training program that ensures employees
understand the program and have the knowledge and skills required for safe
application, use, and removal of energy controls. This language is prefatory to
three paragraphs that specify the kind of training that is to be given to each
of the three categories of employees.
One
category consists of “authorized employees.” These workers perform service and maintenance duties under the LOTO
standard. They are the workers who participate in the deenergization of
machinery or equipment and who have to apply locks or
tags to machinery or equipment to protect against unexpected reenergization
during service and maintenance work. See General Motors Corp., Delco Chassis
Div., 17 BNA OSHC 1217, 1993-95 CCH OSHD ¶ 30,793 (No. 91-2973, 1995)(consolidated), aff’d, 89 F.3d 313 (6th
Cir. 1996) (“GM-Delco”). The other two categories consist of “affected
employees” and a catchall category of “all other employees.” As the preamble to the final LOTO standard explains, affected and all
other employees need to be trained to levels such that they recognize
and honor locks and tags applied by authorized employees and understand their
purpose. Simply put, they must know to leave the machinery or equipment alone
and more particularly not to remove locks, tags, or reenergize the machinery or
equipment. See OSHA, Control of Hazardous Energy Sources
(Lockout/Tagout): Final Rule, 54 Fed. Reg. 36644, 36665/3, 36674/2 (Sept.
1, 1989), as corrected by 55 Fed. Reg. 38677, 38680/1 (Sept. 20, 1990).
According
to subparagraph (A) of section 1910.147(c)(7)(i), “[e]ach authorized employee
shall receive training in the recognition of applicable hazardous energy
sources, the type and magnitude of the energy available in the workplace and
the methods and means necessary for energy isolation and control.” The question
in this case is whether Timken’s authorized employees, specifically Lawson and
Young, were trained according to the terms of the cited standard.
The
language used in section 1910.147(c)(7)(i) and subparagraph (A) is broad, as it
must be for a standard to apply to many different industries and many different
situations. As the Secretary stated when she promulgated the standard, “OSHA
believes that the training program under this standard needs to be
performance-oriented, in order to deal with the wide
range of workplaces covered by the standard.” 54 Fed. Reg. at 36673/3.
She went on to explain that “[c]onsiderable latitude is given to employers in
the development and conduct of the required training for authorized, affected
and other employees.” 54 Fed. Reg. at 36674/1, as corrected by 55 Fed. Reg. at
38682/1.
My
colleague focuses narrowly on these broad terms, as did the judge in this case,
and parses the presentation of evidence into prima facie and rebuttal cases.
She concludes that Timken did not adequately rebut the prima facie evidence. I believe that that focus is too narrow for at least two reasons.
First, it relies only on an analysis of the terms of the cited standard,
overlooks the regulatory scheme used in the standard for training authorized
employees, and ignores the regulatory history of the standard. Second, the
evidentiary focus should be on the record as a whole rather
than a compartmentalization of the evidence as presented by the parties. See,
e.g., Capeway Roofing Systems, Inc., 20 BNA OSHC 1331, 1342, 2002 CCH OSHD
¶ 32,695, p. 51,624 (No. 00-1968, 2003), pet. for rev. filed, No.
03-2373 (1st Cir., Oct. 8, 2003).
The Regulatory Scheme and History
The
provision cited against Timken is what the Secretary characterizes as the
“initial” training provision. 54 Fed. Reg. at 36673/3, 36675/1. Other sections
of the LOTO standard require that “authorized employees” be provided with
followup training when any of several triggering events demonstrate that
authorized employees lack the knowledge or skills to successfully deenergize
hazardous energy sources using lockout/tagout.
The
primary triggering event to discover and determine which authorized employees
requires additional training is specified in section 1910.147(c)(6)(i). According to this section, employers are required to conduct periodic
inspections “at least annually to ensure that the procedure and the
requirements of [the] standard are being followed.” The inspection is to be
carried out “by an authorized employee other than the one(s) utilizing the
energy control procedure being inspected.” It is to be conducted to correct any
“deviations or inadequacies identified,” and it is to include a review between
the inspector and the authorized employee being inspected regarding the
latter’s responsibilities under the lockout procedures that are being
inspected. According to paragraph (B) of section 1910.147(c)(7)(iii),
“[a]dditional retraining shall . . . be conducted whenever a periodic
inspection under paragraph (c)(6) of this section reveals . . . that there are
deviations from or inadequacies in the employee’s knowledge or use of the
energy control procedures.”
Paragraph
(A) of section 1910.147(c)(7)(iii) also provides that retraining of authorized
and affected employees “shall be provided . . .
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.” And paragraph (B) of section
1910.147(c)(7)(iii) provides that retraining shall also be conducted whenever
the employer has reason to believe that there are deviations from, or
inadequacies in, the employee’s knowledge or use of the procedures. Thus,
beyond initial training, the LOTO standard contemplates five separate and
different events that will require employers to retrain authorized employees.
Retraining of these employees is required:
1. When the employer has reason to believe the employee needs
retraining;
2. When a periodic inspection reveals that an employee needs
retraining because he/she lacks knowledge or skills in the use of energy
control procedures;
3. When there is a change in the employee’s job assignment;
4. When there is a change in energy control procedures; or,
5. When there is a change in machines, equipment or processes that
presents a new hazard.
OSHA explained the
need for retraining in the Preamble to the final LOTO standard, as follows:
OSHA
believes that the effectiveness of training diminishes as the time from the
last training session increases. Without the imposition of a requirement for
periodic retraining of the employees who are critical to the success of the
energy control program, that is, the persons who must utilize the procedure,
the overall effectiveness of the energy control program will diminish over an extended
period of time.
54 Fed. Reg. at
36674/3. The LOTO standard thus contains a number of
provisions that are designed to ensure that authorized employees have the
knowledge and the skills required for the safe application, usage, and removal
of energy controls as these words are used in 1910.147(c)(7)(i). However, the question
of what is required in the way of initial training is not answered directly by
the terms of the standard, nor is it answered by the Preamble. It can, however,
be discerned from the regulatory history of the standard, including the
Regulatory Impact Analysis.
The
LOTO standard as proposed on April 29, 1988, included training and periodic
inspection provisions much like those that appear in the final standard. OSHA, The
Control of Hazardous Energy Sources (Lockout/Tagout): Proposed Rule, 53
Fed. Reg. 15496 (April 29, 1988). It also designated three classes of employees
who would require training, including “authorized employees.” The language used in the proposed standard as section
1910.147(c)(5)(i) is as broadly worded as the final provision adopted as
section 1910.147(c)(7)(i). Indeed, there is no essential difference between the
two provisions. Similarly, the periodic inspection and retraining provisions of the
proposed standard called for retraining when authorized employees fail the
periodic inspection and when the employer has reason to believe that there are
inadequacies in its program. Proposed sections 1910.147(c)(4) and (c)(5)(ii),
53 Fed. Reg. at 15518/3, 15519/1.
The
Preamble to the proposed standard was no more specific as to what is intended
by the broad terms used in the final standard than was the explanation provided
on publication of the final standard. I therefore turn to the Regulatory Impact
Analysis (RIA). OSHA, Regulatory Impact and Regulatory Flexibility Analysis
of 29 CFR 1910.147 (The Control of Hazardous Energy Sources – Lockout/Tagout)
(August 1989). The RIA contains cost estimates based upon a study performed for
OSHA by the Eastern Research Group, Inc. (ERG). ERG, Industry Profile Study
of a Standard for Control of Hazardous Energy Sources Including Lockout/Tagout
Procedures (May 1985) (“ERG Study”). I note that OSHA relied upon
the ERG Study in its explanation of the final standard upon publication (54
Fed. Reg. at 36683), and in the RIA. E.g., RIA at ch. VI, p. 1 (“OSHA’s
cost estimates were primarily based on a report prepared by Eastern Research
Group”) (citing ERG Study); id., ch. VI, pp. 42-44 (estimated training
costs were based on ERG Study). In a Supplemental Statement of Reasons
submitted to the U.S. Court of Appeals for the District of Columbia Circuit,
OSHA again relied on the RIA’s cost estimates primarily based on the ERG study.
OSHA, Supplemental Statement of Reasons; Control of Hazardous Energy Sources
(Lockout/Tagout), 58 Fed. Reg. 16612 (March 30, 1993).
Based
on the ERG Study, OSHA estimated in its analysis of costs of the proposal that
initial training for authorized employees would take an average of two hours
per employee (one hour per employee in very small establishments). RIA, ch. VI,
p. 42. Supervisors were assumed to train up to ten authorized employees at a
time, and workers were assumed to undergo retraining at least once every five
years. Id.
According
to the ERG Study, maintenance workers in the low-impact establishments were
assumed to need one-half hour of initial lockout/tagout training the first year
and one-half hour of retraining every five years. ERG Study at 7-116. See RIA,
ch. VI, p. 43. The ERG study even includes language for a standard much like
that OSHA adopted in the final standard. The study states:
Paragraph
(c)(4) of the draft standard describes the training and communication portions
of the lockout/tagout procedures. The requirements are:
(i) The employer shall provide training to ensure that the purpose
and function of the procedures . . . are understood and that the knowledge and
skills required . . . are available as needed.
(A) Authorized and qualified employees shall receive training . . .
(B) Affected employees shall be instructed in the purpose and use of
the lockout/tagout procedures.
(C) All other employees shall be specifically informed of the . . .
procedures.
(ii) Periodic retraining shall be provided . . .
(iii) The employer shall certify that training has been provided.
ERG Study at 7-90. It seems clear from the
cost and time estimates OSHA and its contractor made that OSHA’s expectations
concerning initial training must have included training workers had already received.
Certainly, two hours of training by itself does not suggest a training program
containing extensive studies of lockout methods. Given the content of the LOTO
standard as a whole and the broad language employed in
section 1910.147(c)(7)(i)(A), two hours of training is clearly not enough to
give authorized employees an in-depth understanding of their duties under the
standard, deenergization procedures, lockout usage, and release from lockout.
More to the point, two hours of training is clearly not enough to familiarize
authorized employees with each and every specific
machine or piece of equipment they must service or maintain.
The record in this
case makes it plain that the two mechanical maintainers, Lawson and Young, had
received what I believe to be sufficient “initial” training to meet the
requirements of section 1910.147(c)(7)(i)(A). They received lockout training in
1985 when they were shown a video directed specifically to lockout. They were provided with lockout training under OSHA’s Subpart S
electrical standards in 1995 and also during their
training for compliance with OSHA’s confined space standard in 1993. While
Lawson exhibited little ability to recall training he had received, he did
recall that he had been given a lock to use while he was an apprentice,
indicating that he likely received on-the-job training as an apprentice.
Lawson’s actions and
that of his coworker, Young, clearly demonstrate that both were knowledgeable
about some aspects of the need to lockout energy sources. They did lock out the
hydraulic energy. They used the emergency stop button, even though Lawson was
aware that it was not a lockable device. Lawson had worked weekends and was
aware on those occasions that an electrical maintainer would lock out all power
to the piercing mill from the electrical substation. In these circumstances, the
record as a whole indicates that both Lawson and Young
were trained at least to the extent required by the initial training provision
of the standard cited against Timken.
This
is not to say, however, that Timken’s lockout/tagout procedures were without fault.
I note, in this regard, that Lawson and Young apparently lacked the authority
or ability to deenergize and lock out all the electrical power to the piercing
mill without the assistance of an electrical worker, who would lock it out from
the substation. If Lawson and Young were not able to affix their personal
lockout devices to the energy isolating device, Timken’s procedure may well
violate some other provision of the standard, but it does not indicate a
violation of the training requirement cited here. I also note that Lawson
testified that supervisors were aware of his failure to use LOTO procedures.
The record fails to indicate, however, whether notice of this kind occurred
before or after the effective date of the standard. Of course
if it had occurred after the effective date, then the retraining provisions of
the standard would appear to be relevant to the situation.
My colleague and the
judge both state that Lawson and Young were not adequately supervised. There is
nothing in the record other than Lawson’s broad statement that indicates who
the supervisors were, when they might have seen him fail to follow Timken’s
lockout procedures, and what equipment he was working on when he observed.
These factors are important in LOTO cases. Lawson’s testimony spanned his
entire work experience at Timken, i.e., some nineteen years. Most of that
period was before the standard became effective in 1990. For all we know, his
testimony may have gone to work he performed as an apprentice. However, even if
it is assumed that some of the incidents he described occurred after the
effective date of the standard, his testimony is still not sufficient to show
he lacked “initial” training.
We do not know, for
example, whether the machinery he was working on when observed by the
supervisors was subject to unexpected energization. See GM-Delco, 89
F.3d at 313 (lockout/tagout standard “covers only those machines that do not
provide servicing workers sufficient advance notice of
startup to avoid injury”). We also do not know whether he was actually performing service or maintenance work during that
time. Moreover, the standard has exemptions such as those for cord and
plug-connected equipment, as well as for minor servicing activities. Sections
1910.147(a)(2)(ii)(B) (NOTE), (iii)(A). We do not know what equipment he was
working on. Beyond that, we have no idea whether the supervisors he refers to
were persons charged with responsibility for supervising his use of lockout,
such as maintenance supervisors. In these circumstances, the evidence of record warrants that Item 1(a)
of the citation be vacated for a lack of proof.
The Post Trial Amendment of the Pleadings Was Improper
I believe that the
judge erred by allowing the Secretary to amend the pleadings long after the
record had been closed. My colleague’s acquiescence, as stated in her opinion,
compounds that error. However, even if it can be said that the amendment was
only a technicality, my colleague goes much too far in concluding that the
Secretary carried her burden of proof regarding the knowledge issue.
At the outset, I
note that the motion to amend was made in a post-hearing brief contrary to our
Rules of Procedure. Commission Rule 40(a), 29 C.F.R. § 2200.40(a), clearly
states that “[a] motion shall not be included in another document, such as a brief
. . . , but shall be made in a separate document.”
(Emphasis added.) Technically, one can argue that the motion was not before the
judge and should have been ignored. She granted the improper motion rather than
ignoring it and thus erred.
It is also wrong to
suggest, as my colleague does, that the Secretary lacked notice of the problem
associated with her original theory of prosecution. Timken’s questioning of the Secretary’s compliance officer concerning
her understanding of section 1910.147(d)(2) raised a red flag on the issue
whether the Secretary was proceeding under the appropriate standard.
Nevertheless, the Secretary continued in her post-hearing brief to argue that
the charge as laid in the citation should be affirmed. Indeed, she continued to
argue for that result in her reply brief, but in the alternative asked that the
citation be affirmed under section 1910.147(d)(4). In other words, the
Secretary essentially left it to the judge to pick the proper manner for
affirming the citation. We have been slow to grant motions of this kind when
filed this late in the proceedings, particularly when they cloud the factual
picture. See e.g., Worldwide Mfg., Inc., 19 BNA OSHC 1023, 1025-26, 2000
CCH OSHD ¶ 32,163, pp. 48,551-52 (No.97-1381, 2000), aff’d without
published opinion, 22 Fed.Appx. 684 (8th Cir. Dec. 6, 2001); Lancaster
Enterprises Inc., 19 BNA OSHC 1033, 1034-36 and n. 6, 2000 CCH OSHD ¶
32,181, pp. 48,632-33 and n.6 (No. 97-0771, 2000); Seward Motor Freight
Inc., 13 BNA OSHC 2230, 2234-35, 1987-90 CCH OSHD ¶ 28,506, pp. 37,787-89
(No. 86-1691, 1989); Krause Milling Co., 12 OSHC 1795, 1986-87 CCH OSHD
¶ 27,566 (No. 78-2307, 1986).
In this regard,
Timken advises it would have submitted additional evidence, had it known that
the Secretary was going to move to amend the complaint in her reply brief. I
find it troubling that my colleague sees fit to speculate about how counsel for
Timken would have used the energy isolation lists and that she faults Timken
for not introducing them to support her notion of the evidentiary burden each
party bears. Regarding item 1(a), the training violation, Timken might well
have thought the energy isolation lists to be cumulative and unnecessary, given
the state of the evidentiary record demonstrating classroom instruction and the
like.
Timken argues that
the lists and additional evidence would bear on the subject
of its knowledge regarding the work Lawson and Young had performed. My
colleague states that the documents were relevant and crucial to Timken’s
defense of employee misconduct. I do not see it that way.
The
Secretary Failed to Prove Employer Knowledge Regarding Items 1(a) and (b)
The
issue here is whether the Secretary established that the employer had actual or
constructive knowledge of the alleged violations. In this matter, the Secretary
argued in her post-hearing brief that she does not have to prove employer
knowledge as part of her case. In the alternative, presumably recognizing that
her position has never been adopted by the Commission or the reviewing courts,
she relied on the testimony of Lawson that supervisors had observed his failure
to follow Timken’s LOTO procedures. As I indicated above, that broad testimony
was not sufficient to prove lack of initial training. It is also not sufficient
to prove that Timken had constructive knowledge that its training program was
inadequate, nor was it sufficient to establish that the employer had
constructive knowledge of the specific event cited under item 1(b), regardless
whether Lawson and Young failed to shut down the piercing mill as originally
charged, or whether they failed to completely lock out the mill under the
amended charge.
Insofar
as the employer knowledge is concerned, the facts in this case are similar to the facts in New York State Electric & Gas
Corp. v. Secretary of Labor, 88 F.3d 98 (2nd Cir. 1996). In that case, two
workmen were unsupervised while performing their work, much like Timken’s
mechanical maintainers Lawson and Young were unsupervised while performing
their work. In both cases, the Commission’s judges concluded that the Secretary
proved her prima facie case of constructive knowledge by the employer in view
of the lack of supervision, and also held that the
employer failed to prove its employee misconduct defense. The Commission
affirmed the judge’s finding that New York State Electric failed to demonstrate
sufficient supervision, and the court of appeals reversed and remanded.
The
Court noted that the issue concerning the burden of proof in an alleged
employee misconduct case has split the circuits. 88 F.3d at 106. Indeed, it
quoted Justice White’s comment: “There is a confusing patchwork of conflicting
approaches to this issue.” Id. at 106-07 (quoting L.E. Myers Co. v.
Secretary of Labor, 484 U.S. 989 (1987) (White, J., dissenting from denial
of certiorari)). The Second Circuit went on to describe the three different
views of the several circuits. 88 F.3d at 107. It noted that the Commission
could clear up the confusion and invited it to do just that. Id. at 108.
However, the Commission did not address the issue on remand and instead vacated
the citation by reversing its earlier decision. New York State Electric
& Gas Corp., 19 BNA OSHC 1227, 2000 CCH OSHD ¶ 32,217 (No.
91-2897, 2000). It concluded that the employer’s supervision was adequate. 19
BNA OSHC at 1231, 2000 CCH OSHD at p. 48,874. The “confusing patchwork”
continues to exist to this day. Indeed, rather than resolving the issue, the
Commission has in subsequent decisions continued to apply the law of the
circuit in which the case arose. See e.g., Arcon, Inc., 20 BNA OSHC
1760, 1767, 2002 CCH OSHD ¶ 32,728, p. 51,899 (No. 99-1707, 2004), pet. for
rev. filed, No. 04-2073 (4th Cir. Aug.26, 2004); Trinity Industries Inc.,
20 BNA OSHC 1051, 1061-62, 2002 CCH OSHD ¶ 32,666, pp. 51,407-08 (No.
95-1597, 2003), aff’d without published opinion, No. 03-60511 (5th Cir.
July 23, 2004); North Landing Line Constr. Co., 19 BNA OSHC 1465, 1473
and n. 8, 2001 CCH OSHD ¶ 32,391, pp. 49,814-15 and n. 8 (No. 96-0721,
2001); American Wrecking Corp., 19 BNA OSHC 1703, 1710 and n. 7, 2001
CCH OSHD ¶ 32,504, pp. 50,402-03 and n. 7 (Nos. 96-1330 and 96-1331,
2001), rev’d in part on other grounds, 351 F.3d 1254 (D.C. Cir. 2003).
Clearly the Commission has an obligation to resolve
the problem for the benefit of the regulated community, the Secretary, and the
reviewing courts. It is my view that the Commission’s decisions taken with the
diehard litigation position of the Secretary are the cause of the patchwork and
the Commission at least should resolve them.
The
Commission and the courts of appeal have for more than thirty years held that
the Secretary has the burden of proof on the issue of employer knowledge. As
the Court of Appeals noted in New York Electric, the Secretary has the
burden of persuasion and that burden does not change -- it remains with the
Secretary. 88 F.3d at 107 (“the Commission effectively ignored the usual rule
it has followed that the Secretary must establish by a preponderance of the
evidence that the employer knew or constructively knew of the violation”). The
confusion arises, in my view, because the Commission developed the employee
misconduct defense and articulated it as an affirmative defense. As such, the
burden of persuasion to establish the defense is with the employer. However, as
the Court of Appeals noted, the burdens of the parties overlap under the
decisional law in those situations where each must rely on the employer’s
safety program to persuade the Commission either that the employer did or did
not have constructive knowledge of the alleged violation. 88 F.3d at 106.
The Court suggested that the problem could be resolved
by resorting to a rule which shifts the burden of going forward with evidence. Id.
at 108. In other words, the Secretary would have to make out a prima facie
case at which point the burden of going forward with rebuttal evidence switches
to the employer. The Commission’s decision would be based upon the preponderant
evidence of the record considered as a whole with the
burden of persuasion remaining with the Secretary.
My colleague essentially throws the burden of
persuasion on the employer to demonstrate that it lacked constructive
knowledge. Thus she finds that Mr. Beels, the
supervisor having responsibility for managing and directing maintenance of the
piercing mill, should have known that the mechanical maintainers were not
adequately trained under her construction of the requirements of section
1910.147(c)(1). She would impute his knowledge to Timken.
As I have already discussed, her view of the
requirements of the cited training standard does not accord with OSHA’s views
as shown by the regulatory history of the standard. Mr. Beels’ testimony, which
was credited by the ALJ, demonstrates that the mechanical maintainers were in
fact trained in LOTO notwithstanding Mr. Lawson’s lack of memory. Mr. Beels was
one of the trainers.
My colleague also relies on Mr. Lawson’s lack of
memory and his general testimony to the effect that supervisors observed his
activities and therefore must have known that he was not using LOTO. As I
mentioned above, this testimony is far too general in the context of the LOTO
standard. Assuming, as my colleague does, that these observations took place
after the standard became effective, they do not demonstrate that LOTO was
required, they say nothing about the work Mr. Lawson was performing, and they
assume Mr. Lawson’s supervisors actually saw him
disobey Timken’s LOTO procedures. Had that been the case, the LOTO standard
requires that the disobeying employee be retrained because of the supervisor’s
observation. See section 1910.147(c)(7)(iii)(B).
Mr. Lawson also testified that he was not taken to
task for his disobedience, nor was he disciplined. I infer from that testimony
that the supervisors he testified about whoever they were, did not observe his
admitted disobedient acts. Indeed, it is significant that he did not name Mr.
Beels nor his immediate supervisor, Mr. Vaughn, as the persons who observed his
LOTO practices. While it is true that the Commission has in the past found that
failure to supervise employees is sufficient unto itself to make out a prima
facie case of constructive knowledge, the LOTO standard has built-in guidelines
concerning what an employer must do to determine whether an employee needs
retraining. At the very least, the employer must conduct an annual inspection
of its authorized employees under section 1910.147(c)(6) and retrain those
whose skills fail to pass. Section 1910.147(c)(7)(iii)(B). The Secretary has
not charged Timken with violations of these provisions and the record seems to
indicate that Timken complied. In these circumstances, it is error to conclude
Timken had constructive knowledge that its LOTO training was deficient.
Similarly, the record as a whole
does not establish by a preponderance of the evidence that Timken had
constructive knowledge of Lawson’s failure either to fully deenergize or lock
out the piercing mill. I note that my colleague relies on precisely the same evidence
she relied on to find that the Secretary made out a prima facie case for
allegation 1a, to support her decision that the Secretary also made out a prima
facie case of constructive knowledge for this charge. There is no evidence that
the failures by Lawson and Young were known to supervisors. and it would be
error to find that the knowledge of a supervisor can be imputed to the employer
in order to conclude that Timken had constructive
knowledge of the failure to fully deenergize or lockout.
In her post-trial brief, the Secretary suggested that
since a plant bell indicated that Lawson and Young were going to perform
maintenance work, a supervisor should have tagged along to observe their LOTO
practices. There are two things wrong with the argument. First, the Commission
has not held that one-on-one supervision of hourly workers is required to
ensure that they work safely. Second, the suggestion that journeymen mechanics
need one-on-one supervision is not only unrealistic, it is unworkable. These
workers are trained and trusted to perform their jobs unsupervised. As the
Court of Appeals in New York Electric noted, “[i]nsisting that each
employee be under continual supervisor surveillance is a patently unworkable
burden on employers.” 88 F.3d at 109. See also, e.g., Capital Elec. Line
Bldrs., Inc. v. Marshall, 678 F.2d 128 (10th Cir. 1982); Horne Plumbing
& Heating Co., v. OSHRC, 528 F.2d 564, 569 (5th Cir. 1976); Cape
& Vineyard Div. v. OSHRC, 512 F.2d 1148, 1155 (1st Cir. 1975); Brennan
v. OSHRC [Canrad Precision Industries], 502 F.2d 946, 949 (3d Cir 1974); National
Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266-67 (D.C. Cir.
1973).
I
also believe my decision is in accord with the decisions of the U.S. Court of Appeals
for the Sixth Circuit, a Court to which Timken may appeal this decision. In New
York Electric, the court noted that the Sixth Circuit is one of those
courts which have adopted the rule that employee misconduct is an affirmative
defense, where the burden is on the employer to demonstrate the effectiveness
of its safety program. 88 F.3d at 107 (citing Brock v. L. E. Myers Co.,
818 F.2d 1270, 1276-77 (6th Cir.), cert. denied, 484 U.S. 989 (1987)). See
also, e.g., Danis-Shook Joint Venture XXV v. Secretary of Labor, 319 F.3d
805, 812 (6th Cir. 2003) (relying, inter alia, on L. E. Myers).
In these two decisions and others, the Court has explained that “the Secretary
makes out a prima facie case . . . upon the
introduction of proof of the employer’s failure to provide adequate safety
equipment or to properly instruct its employees on necessary safety
precautions.” Danis-Shook, 319 F.3d at 811 (quoting A/C Elec. Co. v.
OSHRC, 956 F.2d 530, 535 (6th Cir. 1991)). That simply was not done in this
case. There is no question that Lawson and Young had the equipment and training
to properly lock out and deenergize the mill. As for supervision, this case is
unlike L.E.Myers and Danis-Shook. In
both of those cases, foremen were on the scene. There is no substantial evidence
of record that supervision of the two mechanical maintainers was inadequate. It
would have been easy enough for the Secretary to have pursued this subject
during the hearing. Mr. Beels, who managed the mill’s supervisors, testified,
and the Secretary had sufficient opportunity to question him on the subject
while he was on the stand.
Moreover, the Secretary cannot complain that the
burden of developing evidence concerning the employer’s safety program is more
than she can bear. She has powerful tools to use during her investigations.
Section 8(b) of the Act, 29 U.S.C. § 657(b), empowers her to subpoena
testimony and other evidence in making her inspections and investigations. She
also can employ the discovery tools provided by the Commission’s Rules of
Procedure after a citation has been contested. Thus, she can ask for
admissions, obtain the employer’s documents, serve interrogatories, and depose
witnesses. Commission Rules 52-56, 29 C.F.R. §§ 2200.52-56. She also may
compel testimony at Commission hearings through the use of
subpoenas. Commission Rule 57, 29 C.F.R. § 2200.57.
There simply is no excuse for the Secretary to rely on
general statements as she did in this case. While I do not doubt that Mr.
Lawson felt the supervision was lax, I doubt that he was in any position to
opine on the subject. In my view, that testimony standing by itself is not
sufficient to carry the Secretary’s burden of persuasion, nor was it sufficient
to shift the burden of going forward onto Respondent. There should have been
more in the Secretary’s case. Finding insufficient evidence, I conclude that
the Secretary failed to carry her burden of proving constructive knowledge, and
I would vacate both items.
Separate
Opinion of Commissioner Rogers
Commissioner
Rogers agrees with the conclusion of the judge who tried this case that the
Secretary established violations of both the training and lockout application
provisions cited here.
I
Item 1(a), the training item, presents two questions:
(1) whether Timken complied with the cited provision, section
1910.147(c)(7)(i); and (2) whether Timken had knowledge of the violative condition
(either actual or constructive) and thus should be charged with responsibility
for Lawson’s actions on the day of his accident. As to the first question, the record supports the judge’s finding
that, although the authorized employees received some lockout/tagout training,
it was insufficient to meet the requirements of the cited provision. Judge Rooney relied on unequivocal testimony by Lawson, the employee
who was injured while attempting those repairs, that he: (1) had never received
training on how to lock out any of the machines and equipment in the plant; and
(2) did not know how they were supposed to lock out the complex Piercing Mill
(“PM”) for the repairs involved here. Perry, the OSHA compliance officer who conducted the inspection,
testified that Young, the employee who was assisting Lawson during those
repairs, told her he had gotten no specific training on lockout/tagout
procedures.
This evidence regarding Lawson and Young was
corroborated by the facts regarding the accident. Neither employee locked out
anything but the hydraulic system to the PM. Thus, the gorge adjust shaft on
which Lawson worked, and the nearby spindle on which Young was standing, were
not locked out as required. Lawson testified that he thought at that time that
activating the emergency kill switch would disable all power to the PM.
Timken argues vigorously that Lawson’s testimony is
not credible, because it is internally inconsistent and because it was
motivated by animus against the company, due to discipline the company imposed
on him after the accident. However, the judge carefully evaluated Lawson’s
testimony, including his demeanor and manner of testifying, and found it
consistent and credible. She found that his answers were forthright, that he
displayed no animus toward Timken, and that he ultimately had accepted the
modified discipline Timken imposed on him. Lawson admitted making serious
mistakes of his own leading to the accident, notwithstanding the flaws in his
training. The judge analyzed alleged inconsistencies in his testimony and
explained why they were unfounded.
When a judge’s credibility finding is based on the
judge’s observation of a witness’ demeanor and is clearly stated and explained,
the Commission generally accepts that finding. E.g., Hern Iron Works, Inc.,
16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, p. 41,257 (No. 89-433,
1993). Cf. Hackney, Inc., 15 BNA OSHC 1520, 1522, 1991-93 CCH OSHD ¶
29,618, pp. 40,106-07 (No. 88-391, 1992) (“to warrant Commission deference, the
finding must specifically resolve conflicting testimony or doubts as to
credibility.”) See also, e.g., First National Monetary Corp. v. A. J.
Weinberger, 819 F.2d 1334, 1339 (6th Cir. 1987) (credibility determinations
“are generally not to be set aside unless found to be inherently incredible or
patently unreasonable;” but “reviewing court must consider evidence which
fairly detracts from the weight of the credibility determination
. . . .”) The judge’s credibility findings contain the
necessary specifics and explanation, and there is no basis for overturning
them.
Thus, Commissioner Rogers would find that the
Secretary has made a prima facie showing that
Lawson and Young did not receive adequate training under the cited provision.
Specifically, that evidence indicates that Timken’s training did not give the
employees the “knowledge and skills required for the safe application, usage,
and removal of the energy controls” involved, and that they were not given
adequate training in: (i) the recognition of applicable hazardous energy
sources; (ii) the type and magnitude of the energy available in the workplace;
and (iii) the methods and means necessary for energy isolation and control. As
the Preamble to the standard explains, authorized employees “need extensive
training in aspects of the procedure and its proper utilization, together with
all relevant information about the equipment being serviced.” OSHA, Control
of Hazardous Energy Sources (Lockout/Tagout): Final Rule, 54 Fed. Reg.
36,644, 36,674/1 (1989), as corrected by 55 Fed. Reg. 38,677 (Sept. 20, 1990).
In attempting to rebut the Secretary’s evidence of
noncompliance, Timken showed that it had provided substantial lockout/tagout
training to its employees -- as to electrical energy sources. However, it did
not present evidence that it trained its authorized employees on non-electrical
energy sources, such as the hydraulic and pneumatic devices at the PM. It also
did not present evidence that its training actually met
any of the specific requirements for training authorized employees, even as to
electrical energy sources.
Lawson and Young did receive some general
lockout/tagout training. Timken’s training records indicate that in 1995, they
received a full day of electrical safety training based on Subpart S of OSHA’s
general industry standards, which includes certain lockout/tagout requirements
for electrical work. However,
Subpart S does not address non-electrical power sources, such as the hydraulic
and pneumatic mechanisms at the PM, at issue here. There
is no indication that those power sources were covered in that training.
The training records also show that in 1993, Lawson
and Young attended a full day of safety training on work in confined spaces.
The only available evidence about the program’s content is Lawson’s
recollection of a brief discussion of lockout/tagout requirements, from which
he got the idea that Timken would implement a formal lockout/tagout program in
the future. However, he further testified that he never was informed
subsequently that such a program was in effect.
Michael
Beels, Timken’s Unit Manager of Piercing Reliability at the plant, testified
that during the mid-1980’s, all the employees were shown a video that stressed
“the importance of lockout/tagout and how it’s to be done, visually[.]” The
video was made several years before OSHA’s lockout/tagout standard was
promulgated, however, and the evidence does not indicate that it presented the
training of authorized employees in any of the specific matters required by the
cited provision. Lawson and Young also received on-the-job (“OJT”) training
from experienced maintainers, when they started their jobs. As the judge found,
however, the record does not show the content of the OJT.
Commissioner Rogers would find that, based on this
rebuttal evidence (and the record as a whole), Timken has not shown that its
authorized employees were ever trained in the “recognition of applicable
hazardous energy sources” other than electrical. Also, there is no evidence
that those employees were informed of the “magnitude of the energy available in
the workplace,” as explicitly required by that provision. Nor is there evidence
that they were trained in “the methods and means necessary for energy isolation
and control,” except perhaps as to electrical energy. The evidence does not
rebut Lawson’s testimony to the effect that Timken’s training did not give him
the “knowledge and skills required for the safe application, usage, and removal
of the energy controls” with which he was working. All the quoted passages are
explicit requirements of the cited provision. Timken’s evidence is inadequate
to rebut the Secretary’s prima facie evidence that it failed to provide
sufficient training on those matters.
Timken
argues the mere fact that the employees here did not know some essential things
about locking out the PM does not show that they were not trained in them. The
judge did not rely on the mere fact of the employees’ ignorance, however, but
on the credible and definite testimony that they had not been trained in
locking out the machinery and equipment in the plant. See supra note 5.
Timken failed to rebut the prima facie evidence that it did not give the
employees the required training. Considering the record as a whole, the
evidence preponderates that Timken failed to provide the requisite training.
II
As to employer knowledge, Beels was familiar with –
and ultimately responsible for – the employees’ training. Beels knew or
reasonably could have known that it was inadequate. A supervisor’s “knowledge
of his own actions or inactions may be imputed to his employer.” Pressure
Concrete Construction Co., 15 BNA OSHC 2011, 2018, 1991-93 CCH OSHD
¶ 29,902, p. 40,813 (No. 90-2668, 1992). See also Donovan v.
Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir. 1983)
(supervisor’s actions and knowledge generally are imputed to the employer).
Judge
Rooney also found that:
Mr. Lawson’s failure to
use proper lockout in the past had been tacitly condoned by management. He
presented unrebutted testimony that he had never been told he was doing
anything improper or disciplined, despite having failed to follow proper
procedures in the presence of management.
Thus, she inferred
from Lawson’s testimony that Timken managers had had a reasonable opportunity
to learn that he was failing to use proper lockout and that he had been trained
inadequately. That finding is well supported, and the judge properly inferred
that Lawson’s testimony included the period after the effective date of the
lockout/tagout standard. He testified that “over the years,” up to the time of
his injury, no supervisor ever told him to lock out a machine, even though he
never followed the proper lockout procedure before the accident, and even
though a foreman would oversee Lawson’s big jobs. Lawson testified that lockout procedures were never implemented or
enforced before his accident.
Timken
notes that Lawson gave no specifics about the alleged incidents where
supervisors were present. However, Timken, which adduced Lawson’s testimony on
the subject, had the opportunity to ask him for specifics, so that it could
investigate and present counter-evidence (if there were any). Lawson’s
testimony establishes that Timken reasonably could have discovered that Lawson
(and other employees) were not applying lockout when required under the
lockout/tagout standard.
Timken
submitted no evidence that its supervisors did any monitoring of the employees’
lockout/tagout practices. The Commission has required an employer who attempts
to rebut prima facie evidence of constructive knowledge to “demonstrate
that it took action to discover violations of work rules by implementing
measures to monitor its employees’ adherence to safety rules.” Dover
Elevator Co., 16 BNA OSHC 1281, 1286, 1993-95 CCH OSHD ¶ 30,148,
p. 41,480 (No. 91-862, 1993). The Secretary has shown that Timken had constructive knowledge of the
training deficiencies.
III
Commissioner
Rogers also finds that the judge properly amended Item 1(b), to charge a
violation of the lockout application provision at section 1910.147(d)(4), and that she properly affirmed that violation. Subitem 1(b) originally
cited the provision that requires proper shutdown of equipment prior to lockout
(section 1910.147(d)(2)). However, both parties tried the case on the assumption that the
alleged violation was for failure to actually lock out
the machinery. The citation alleged that “[e]quipment at the #3 tube mill was not
completely locked out, the rod and shaft were still activated exposing
employees to injury” (emphasis added). At the hearing, Timken’s counsel asked
OSHA’s compliance officer what she thought the cited provision requires, and
she testified that it “requires that machine[s] and equipment be locked out
from . . . all energy sources.” Timken’s counsel further asked her for the
basis for her recommendation to issue the citation, and she testified that it
was Timken’s failure to completely lock out the PM. (Tr. 98)
Therefore,
the parties squarely recognized at the hearing that failure to lock out the
machinery was the alleged violation, and it is undisputed that Lawson and Young
failed to lock out the energy sources other than the hydraulic system. The
provision that is specifically applicable is section 1910.147(d)(4). In its
initial Post-Hearing Brief to the judge, Timken for the first time raised the
inapplicability of section 1910.147(d)(2) to actual lockout of machinery, and
Timken asked that Item 1(b) be vacated as a result. In her reply brief to the
judge, the Secretary moved to amend Item 1(b) to allege a violation of section
1910.147(d)(4), in the alternative. There is no indication on this record that the Secretary’s counsel
realized, before Timken raised the issue post-hearing, that the originally
cited provision does not address actual lockout of machinery.
The
judge properly considered the amendment appropriate. Amendments are permissible
where, as here, they merely add an alternative legal theory, but do not alter
the essential factual allegations of the citation. See, e.g., C. T. Taylor
Co., 20 BNA OSHC 1083, 1086 n. 5, 2002 CCH OSHD ¶ 32,659, p. 51,340 n.
5 (No. 94-3241, 2003) (consolidated) (citing A.L. Baumgartner Constr.,
16 BNA OSHC 1995, 1997, 1993-95 CCH OSHD ¶ 30,554, p. 42,272 (No. 92-1022,
1994)). The proffered amendment here does not expand the factual allegations of
the citation – it merely corrects the cited subsection of 1910.147(d). The only
relevant factual issue in dispute is whether Timken should be held responsible
for the employees’ failure to lock out the entire PM. Thus, the amendment would
change only the legal theory of the violation, and
would be permissible. See also, e.g., Advance Bronze, Inc. v. Dole, 917
F.2d 944, 955 (6th Cir. 1990) (post-hearing amendment permitted; an “employer .
. . does not have any vested right to go to trial on the specific charge
mentioned in the [Secretary’s] citation”) (quoting Long Mfg. Co. v. OSHRC,
554 F.2d 903, 907 (8th Cir. 1977)).
Timken
objected to the amendment on the ground that the
Secretary’s failure to raise the applicability of section 147(d)(4) earlier in
the proceeding caused prejudice to its case. Timken’s asserted basis is that if it had known at the hearing that
section 147(d)(4) was in issue, it would have presented its energy isolation
lists (“EIL’s”), to show that it had proper workrules. The EIL’s contained
Timken’s lockout procedures for specific machines in the plant. Timken expected
the employees to familiarize themselves with the EIL for a particular
machine or piece of equipment before performing maintenance on it.
However,
the EIL’s were relevant to issues that were in the case from the beginning,
including: (1) Timken’s affirmative defense of unpreventable employee
misconduct (“UEM”) to all of the alleged violations,
including the originally cited item 1(b) with respect to the failure to shut
down, and (2) whether it had constructive knowledge of either alleged
violation. For example, Timken relied on the fact that Lawson failed to request
the EIL for the PM on the day of the accident, in order to
show that the employees’ actions constituted UEM. Lawson’s failure to request
that EIL would not help Timken unless the EIL contained all the necessary
information on how to lock out the PM for the type of repairs at issue here.
Thus, it was crucial to Timken’s defenses at the hearing to submit the EIL in
evidence – if it supported Timken’s claims. Timken must bear the responsibility
for the fact that no EIL’s are in the record, in the circumstances. Thus,
Timken was not prejudiced by the amendment of Item 1(b), and it is permissible.
Because
there is no dispute that section 147(d)(4) applies, that Lawson and Young
failed to comply with it, and that they were exposed to the resulting hazards,
the only element at issue is whether Timken reasonably could have known of the
noncompliance. Because Timken failed to train the employees adequately (Item
1(a)), it reasonably could have known that they would not always lock out the
PM properly for repairs. See, e.g., Brock v. L.E. Myers Co., 818 F.2d
1276 (Secretary may show constructive knowledge that employee might work
unsafely by proving that employer failed “to properly instruct its employees on
necessary safety precautions”) (citing, inter alia, Danco
Construction Co. v. OSHRC, 586 F.2d 1243, 1246 (8th Cir. 1978) (employer
may not “fail to properly train and supervise its employees and then hide
behind its lack of knowledge concerning their dangerous working practices.”)
Further,
as mentioned, Judge Rooney properly found constructive knowledge based on
Lawson’s testimony that supervisors did not correct him when he failed to use
proper lockout in their presence, during the years leading up to the accident.
There is no evidence that Timken supervisors properly monitored the
maintainers’ compliance with lockout rules before that accident. To rebut prima facie evidence of constructive knowledge, the
Commission has required the employer to show that it monitored its employees’
compliance with safety rules. E.g., Dover Elevator.
Timken argues in effect that it reasonably could rely
on Lawson and Young to use lockout properly, in light of
their training and long job experience. However, the record supports the
judge’s findings to the contrary – that Timken could not rely on those
employees, both because its lockout training was inadequate, and because its
supervisors failed to monitor the employees actual
on-the-job compliance adequately. “Employers cannot count on employees’ common
sense and experience to preclude the need for instructions.” Danis-Shook
Joint Venture XXV v. Sec’y of Labor, 319 F.3d 805, 811 (6th Cir. 2003).
Because the Secretary affirmatively proved constructive knowledge, Timken’s UEM
argument is unavailing.
In
assessing penalties, the Commission considers the gravity of the violations, as
well as the employer’s size, good faith, and history of OSHA violations. See
§ 17(j), 19 U.S.C. § 666(j). See, e.g., C. T. Taylor Co., 20 BNA OSHC at 1089-90,
2003 CCH OSHD at p. 51,343. In assessing
the $5000 combined penalty proposed by the Secretary for Items 1(a) and (b),
the judge noted that they involved similar hazards. She termed the severity of
the hazards high, noting that “Mr. Lawson suffered serious bodily injury which
resulted in time off from work and permanent scars.” Further, the CO testified
that there was a relatively high probability of an accident, apparently because
of the employees’ “[l]ack of knowledge” of the necessary procedures. Timken is
a large employer, with about 900 employees at the Gambrinus Plant and 18,000
company-wide, and it had other OSHA citations within the prior three years.
There
are indications that Timken acted in subjective good faith – a factor that the
Commission has found relevant in penalty assessment. See, e.g., Pentecost
Contracting Corp., 17 BNA OSHC 1953, 1956, 1995-97 CCH OSHD ¶ 31,289, p.
43, 960 (No. 92-3788, 1997). Lawson testified that lockout/tagout procedures
were vigorously enforced after the accident, and that Timken takes more time
for repairs. He also acknowledged that he had effective training following the
accident. CO Perry testified that Timken cooperated fully with her inspection.
All
things considered, the amount the judge assessed was appropriate, given the
gravity of the hazards and the laxity of Timken’s lockout program before the
accident. Thus, I would affirm the judge’s findings of violations and the $5000
penalty she assessed.
SECRETARY OF LABOR, |
|
Complainant, |
|
v. |
|
|
|
Respondent, and USWA, GOLDEN LODGE, LOCAL NO. 1123, Authorized
Employee Representative. |
|
Appearances : For Complainant: Heather A. Joys, Esq., Office of the
Solicitor, U. S. Department of Labor, Cleveland, OH.; For Respondent : Shannon
L. Shinaberry, Esq., Day, Ketterer, Raley, Wright & Rybolt, Ltd., Canton,
OH.; Authorized Employee Representative For USWA, Local No. 1123: David Lewis
Before: Judge Covette Rooney
This
proceeding is before the Occupational Safety and Health Review Commission
pursuant to Section 10(c) the Occupational Safety and Health Act of 1979 (29
U.S.C. §651, et seq.)(“the
Act”). Respondent, the Timken Company, at all times
relevant to this action maintained at a worksite at the 2401 Gambrinus Avenue,
S.W., Canton, OH., where it was engaged in the business of manufacturing and
producing tapered rolling bearings and alloy steels. Respondent admits that it
is an employer engaged in a business affecting commerce and is subject to the
requirements of the Act.
The
record reveals that Safety Compliance Officer (“CO”) Diane Perry was assigned
to conduct a complaint generated inspection at the subject worksite on July 10,
1997 (Tr. 87; Ex. 7). The complaint alleged that an accident had occurred on March
12, 1997. As a result of her inspection, on August 11,
1997, Respondent was issued a citation alleging three serious violations with a
proposed total penalty in the amount of $6,500.00. By timely Notice of Contest,
Respondent brought this proceeding before the Review Commission. A hearing was
held before the undersigned on March 12, 1998. During the hearing, counsel
notified the undersigned that the parties had reached a settlement with regard to Citation 1, Item 2. On March 13, 1998, the
undersigned received a Partial Stipulation and Settlement Agreement with regard to Citation 1. An Order approving this
settlement has been issued on this date. Accordingly, the undersigned has before
her Citation 1, Items 1a and 1b with a proposed penalty in the amount of $5,000.00 . Counsel for the parties have submitted
Post-Hearing Briefs and Reply Briefs, and this matter is ready for disposition.
BACKGROUND
In
response to a troubleshooting whistle at the Respondent’s Piercing Mill on
March 12, 1997, maintenance maintainers, Thomas Lawson and Ernie Young found
that a hydraulic hose was leaking (Tr. 17). Upon their arrival at the Piercing Mill, Mr. Young turned the
switch for the Piercing Mill hydraulic system to the “off” position, and he
placed his lock on it. Young also had pushed the emergency stop button in the
operator’s pulpit on the console of the piercing operator (Tr. 17, 49, 138).
Both Messrs. Young and Lawson had determined that this was going to be a simple
repair which would take approximately 5 minutes (Tr. 17). Mr. Lawson was not
able to reach the bottom of the hose while standing on the floor, so he stood
on a gorge adjust shaft which was 10-12 inches off the floor. Mr. Young stood nearby on the spindle (Tr. 18,141-42; Exs. C-1
and R-O). As Mr. Lawson stood on the gorge shaft, the plugged operator on the
opposite side of the mill activated the control device of the gorge shaft
causing it to rotate. Mr. Lawson’s leg went over the shaft, causing his clothes
to become wrapped around the shaft and causing serious injuries (Tr. 18,
144-45).
The
record reveals that the control device for the Piercing Mill was on the
operator’s console in the piercing mill pulpit (Tr. 27-28). It does not turn
off the gorge adjust shaft (Tr. 133). The gorge shaft is controlled from the
plugged’s position which is at another location (Tr. 134-35; Ex. R-I). At the
time of the accident, Mr. Lawson believed that the emergency stop button killed
the power to everything in the Piercing Mill including the spindles of the
gorge adjust shaft upon which he stood (Tr. 19-20, 34, 50-53). The record
reveals that the emergency stop button was simply a push button,
and could not deactivate or deenergize the gorge adjust shaft or
spindle. It controlled the fingers on a roll down table, which could be engaged
to remain in the “up” position in order to prevent
product from rolling down into a trough that fed into the Piercing Mill (Tr.
145-46). This button did not control or isolate energy to the Piercing Mill and
it could not be locked out. It was not a proper deenergization or isolation
device (Tr. 109, 136-138).
Michael
Beels, the Unit Manager of Piercing Reliability, whose responsibilities
included managing and directing the maintenance of the Piercing Mills, provided
testimony regarding the safety measures which should have been taken by Lawson
and Young before commencing any repair work. He testified that they correctly
pulled the switch to the “off” position on the hydraulic system of the Piercing
Mill. Then, they both should have installed locks on the switch. Next, they
should have closed and locked out with additional locks, the air valve for the
Piercing Mill ram. They should have also pulled and locked out the switch for
the gorge adjust shaft. Additionally, they could have notified the electrical
maintainer to have deenergized and locked out the Piercing Mill main drive,
which was located in the main substation across the
mill (only electricians are authorized to enter this substation). This would
have isolated all the power to the Piercing Mill. If this had been done the
plugger would not have been able to have restarted the gorge adjust shaft
without having had it unlocked. (Tr. 146-153).
SECRETARY’S BURDEN OF PROOF
The
Secretary has the burden of proving his case by a preponderance of the
evidence.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability of the
cited standard, (b) the employer’s noncompliance with the standard’s terms, (c)
employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (the employer either knew or with the
exercise of reasonable diligence could have known, of the violative
conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). The
record reveals that the Respondent does not dispute the applicability of the
cited standards.
Citation 1, Item 1
§1910.147(c)(7)(I) The employer shall
provide training to ensure that the purpose and function of the energy control
program are understood by employees and that the knowledge and skills required
for the safe application, usage, and removal of the energy controls are
acquired by employees. The training shall include the following:
(A) Each authorized employee shall
receive training in the recognition of applicable hazardous energy sources, the
type and magnitude of the energy available in the workplace, and the methods
and means necessary for energy isolation and control.
. . .
a)
At the #3 tube mill, authorized employees were not properly advised in the
recognition of applicable hazardous energy in that the proper lockout procedures
were not applied so that all parts of the piercing mill were adequately locked
out.
The
Secretary argues that the Respondent failed to train its maintenance employees
in the purpose and function of its energy control program and to ensure that
its maintenance employees had the knowledge and skill necessary to properly use
those energy control methods (Secretary’s Post Hearing Brief, p. 7). CO Perry
testified that during her investigation she was provided training records for
the employees and that she interviewed Messrs.. Lawson
and Young and several other employees (Tr. 92, 95; Ex. C-6). She testified that
Mr. Young had informed her that he had not been provided specific training on
lockout/tagout procedures. Another employee, Ivan Webster informed her that two
years ago he had received training from an outside contractor. The record
indicates that this training had been conducted in January 1995. Ex. C-6
reveals that the training was Subpart S training - OSHA Electrical
Safety-Related Work Practices (Ex. R-D).
The
Secretary presented the testimony of Mr. Lawson and introduced into evidence
Respondent’s training records. Lawson testified that he had been employed at
Timken as a maintenance maintainer for 19 years. His duties included fixing and
repairing equipment as it broke down and performing preventative maintenance
(Tr.7-8). During his employment, he had received on-the -job training from
various millwrights as a millwright helper. He testified that he had received
classroom training on various topics, such as confined spaces, hydraulics,
electrical. He recalled that there had been a brief discussion on
lockout/tagout procedures which were going to be implemented
. He recalled that they were showed them some
locks, but that there was no discussion with regard to specific machinery. It
was his impression that this was something that was going to happen in the
future, but he never knew if lockout tagout had been implemented(Tr.
50). He testified that since his return to work from the accident he has become
familiar with Timken’s corporate lockout program and to implement it. (Tr. 10-
11).
He
testified that on the day of the accident, he believed that the electric power
had been turned off by the emergency stop. He had always assumed that the
emergency kill wiped out everything.(Tr. 19, 36). He
found out after the fact, that the energy source for the main drive was in the
substation (Tr. 45). He stated that prior to the day of the accident, they
usually killed what they were to work on,“if they had
hydraulic problem, they killed the hydraulics”(Tr. 19-20). He had performed
similar work on the hydraulic hoses in the past, and never thought about
locking out the Piercing Mill or what he was standing on - he only had locked
out the hoses (Tr. 57). He testified that prior to accident had performed this
maintenance operation about six times over 12-13 years, and
could not recall having shut down the machine any differently from what was
done on the day of the accident. He further stated that no one had ever
informed him what he was doing was improper, nor had he ever been disciplined
for the way he had shut down machine before (Tr. 21). He testified that in the
past, a supervisor had been with him when he didn’t use a lock, and the
supervisor had never told him to use a lock (Tr. 63-64). He testified that he
had been given a lock when he was a millwright helper, but he had never seen a
millwright use a lock nor had he ever used the lock. He testified that as a result of his “common sense”, he learned how to use the
lock (Tr. 23, 38-39). He stated that although not trained to do so, he knew to
call an electrician if confronted with a situation in which he was unsure of or
if something had to be thrown in the substation where he could not throw a
manual switch (Tr. 45). He testified that he had never received any written
instructions on locking out the piercing mill before the accident nor had he
ever been tested the knowledge he had. He had heard of an energy isolation list
for the machine before the accident, and had seen it
on the computer. However, he is not adept to the computer but could get someone
to get into it to show him. Prior to the accident, he had never retrieved an
energy isolation list from the computer (Tr. 20-22). He also testified that he
was aware that a “push button” was not an energy isolation device which did not
accept a lock. However, he also testified that he could not definitively say
that he knew this at the time of the accident (Tr. 53-54). He went on to explain
that when performing a repair job, he attempts to keep the down time to a
minimum. If he believed that he had a three or five minute
job, he would not take twenty minutes to call an electrician to have him throw
switches in the substation (Tr. 55). If the job on the day of the accident had
been more substantial, e.g., removing a hydraulic motor, he would have take the
time to have called an electrician.
Respondent
alleges that it had provided its employees with adequate training within the meaning
of the standard, and argues that Mr. Lawson’s
testimony supports its employee misconduct defense. Mr. Beels testified that Messrs.. Lawson and Young had received training through four
different forums. He testified that they had initially received training as
helpers from experienced mechanical maintainers (Tr. 156). He also testified
that the company had presented a video in 1985 or 1986 which covered the
subject of lockout/tagout. Although, there were no records of this video
training, he testified that he presented the training to all
of the employees at that time (Tr. 167-68). He assumed that Messrs.. Lawson and Young saw it because they were employed
at the time. Mr. Beels also testified that during the Subpart S training
conducted in January 1995, one of the topics discussed was lockout/tagout and
what could happen if electricity was not properly isolated and locked out. He
testified that the training covered electrical safety and the differences
between qualified and non-qualified persons. It also reviewed topics such as
mechanical lockout devices, such as gang lockouts, and valve covers (Tr.
156-57). Additionally, he testified that as recently as January 24, 1997,
Lawson and Young had received training during the course of
their annual review of the Job Safety Description (“JSD”) where topics such as
confined spaces, hazardous material communication and lockout tagout. In
support of its position, Respondent directs attention to the first paragraph of
the lockout tagout portion of the JSD which sets forth:
You are to become familiar with the Lockout/Tagout procedure. Copies are
available in the manufacturing department in which the equipment is located and also from a master list that is located in the
Maintenance Service or Operation Service Departments of the Plant.
(Ex. R-B).
The
Preamble to the Lockout/Tagout standards explains that “OSHA considers the
requirements [of paragraph (c)(7)] to be of critical importance in helping to
ensure that the applicable provisions of the hazardous energy control
procedure(s) are known, understood and strictly adhered to by employees.” 54
Fed. Reg. 36,644, 36,673 (1989). The Preamble points out that “in order to provide adequate information, any training
program under this standard will need to cover at least three areas: The
employer’s energy control program, the elements of the energy control procedure
which are relevant to the employee’s duties, and the requirements of this Final
Rule.” Id. The degree of knowledge required by employees is defined by
their duties. The subject employees were “authorized employees” and as set
forth in the preamble “[b]ecause [they are] charged with the responsibility for
implementing energy control procedures, it is important that they receive
training in recognizing and understanding all potentially hazardous energy
source that they might be exposed to during their work assignments, and that
they also be trained in the use of adequate methods and means for the control
of such energy sources...[t]herefore, they need extensive training in aspects
of the procedure and its proper utilization, together with all relevant
information about the equipment being serviced.”Id. The undersigned
finds that the testimony of Mr. Lawson and the training provided, establish
that Respondent failed to ensure that its employees acquired the knowledge and
skills, and understood the purpose and function of the energy control program.
The records of training indicate that at least eleven employees at the instant
worksite were “authorized employees” (Tr. 74-81; Ex. C-6). The records for each
employee, except for one, indicate that Lock/Out Tagout “annual certification”
was recorded after March 12, 1997. Mr. Beels testified that this was not training, only
certification (Tr. 81). The undersigned finds that the January 1995 Subpart S
training did not provide the training which the Lockout/Tagout standard
mandates. As indicated upon the face of the training documents this course met
the minimum requirements of “Electrical Safety Related Work Practices” and
provided an explanation of the requirements of Lockout/Tagout. The objective of
the course was not to ensure that “the purpose and function of the energy
control program [were] understood by employees and that the knowledge and
skills... of the energy controls [were] acquired by employees.” The testimony
of Mr. Lawson with regard to that the Subpart S
training indicates that such an objective was not met - he recalled pictures of
burnt bodies and nothing more (Tr. 62). The evidence presented with regard to the JSD discussions is also unpersuasive. On
its face the JSD puts the responsibility of becoming familiar with the
Lockout/Tagout procedure on the employee (Ex. R-B). Mr. Mr. Lawson ‘s testimony
clearly indicated that he had no meaningful recall of this discussion (Tr.
62-63). The undersigned finds that the overall tenor of Mr. Lawson’s testimony
establishes that he lacked the knowledge and skills to deenergize and lockout
the Piercing Mill. He possessed no understanding of what was required to kill
the power upon the equipment on which and from which he was working. ( e.g., Tr. 44-46, 49, 50-51, 52-53, 58, 60). His testimony
also revealed that although he had some knowledge about lockout procedures, he
did not fully understand its purpose. For example, he believed that it was not
necessary for two locks to be placed on the hydraulic switch - he believed one
would do it. He also was not clear on whether at the time of the accident two
locks were required (Tr. 49-50, 67). He believed that the emergency kill switch deenergized the entire Piercing Mill including
the ram (Tr. 53). The undersigned having observed the demeanor of Mr. Lawson
finds his testimony credible. His answers were forthright
and he displayed no biased towards the Respondent. He has since been back to
work and the grievance over the discipline he received as a
result of the accident had been resolved (Tr. 6, 23). The undersigned
notes that Mr. Beels was also a credible witness, however, he had no personal
knowledge whether employees had received the corporate lockout/tagout program
or of the content of the training he alleged Messrs. Lawson and Young received
on-the-job or during JSD discussions (Tr. 155, 165-66, 168) .
Furthermore, his testimony did not show that the training he was knowledgeable
of addressed applicable energy sources, the type and magnitude of the energy
available in the workplace, and the methods and means necessary for energy
isolation and control. The undersigned finds that the
occurrence of the March 12, 1997 accident establishes employee exposure. The
record also establishes employer knowledge. Mr. Lawson’s failure to use proper
lockout in the past had been tacitly condoned by management. He presented
unrebutted testimony that he had never been told he was doing anything improper
or disciplined, despite having failed to follow proper procedures in the
presence of management (Tr. 63-64). In light of the above
the undersigned finds that the violation has been established.
Citation 1 Item 1b
§1910.147(d)(2) "Machine
or equipment shutdown." The machine or equipment shall be turned off or
shut down using the procedures established for the machine or equipment. An
orderly shutdown must be utilized to avoid any additional or increased
hazard(s) to employees as a result of the equipment
stoppage.
a)
Equipment at the #3 tube mill was not completely locked out, the rod and
shaft were still activated exposing employees to injury.
Respondent
does not dispute that the #3 tube mill was not properly locked out. Respondent
sets forth that the issue was whether the equipment was not properly locked out
due to employee misconduct. (Respondent’s Pre-Hearing Statement dated February
26, 1998). Respondent also argues that in light of the fact
that the citation was issued because “[e]quipment at the #3 tube mill
was not completely locked out” (emphasis added), the allegation if true,
would fall under paragraph (d)(4) and not (d)(2). In support of this argument, Respondent states
that Mr. Beels testimony established that the Piercing Mill had in fact been
shut down by the Piercing Mill Operator (Tr. 132-33). He described the black
handle on the console of the Piercing Mill Operator’s pulpit which was used to
accomplish this function. However, this did not turn off or electrically
isolate the gorge adjust shaft which was a part of the equipment which was
within the piercing mill area (Tr. 26-30, 73, 153). The shaft was connected to
a gear box which was approximately 10 feet away and directly beside it was a
labeled switch which could have been locked out (Tr. 73, 150). Messrs.. Lawson and Young only followed one portion of the
lockout procedure - they turned the hydraulic system switch to the “off”
position and placed a lock. albeit one, on the switch. They failed to
electrically isolate and lock out the gorge adjust shaft and the air valve for
the spindle ram in the Piercing Mill (Tr. 138, 142-143, 147-50). The did not
attempt to start the Piercing Mill prior to working in an
attempt to find out if they had it isolated (Tr. 143). The accident
happened when the electrical power was turned back on (Tr. 36). The undersigned
finds that these facts as presented by both parties at the hearing establish a
violation of the failure to take action to secure the
energy isolating devices in a “safe” or “off” position with an appropriate
lockout/tagout device to prevent reactivation of the equipment. These facts
establish a violation of §1910.147(d)(4). An amendment of the cited standard to
§1910.147(d)(4) is therefore appropriate. [See Fed.R.Civ.P. 15(b)].
The
record establishes that employees Lawson and Young were exposed to the hazard
posed by this violation. The undersigned finds that with the exercise of
reasonable diligence, the Respondent could have discovered this violation. The
fact that management referred to these employees as “self directed” did not
absolve Respondent’s duty to exercise reasonable diligence by providing
adequate supervision. This would have led to the discovery that employees were
not using proper lockout procedures. In light of the above, the undersigned
finds that the violation has been established.
The
undersigned also finds that the Respondent has failed to establish the
affirmative defense of employee misconduct. Review Commission precedent has
established that to establish this affirmative defense, an employer must show
that “it had established a work rule designed to prevent the violation,
adequately communicated those work rules, and effectively enforced those work
rules, when they were violated.” Centrex-Rooney Construction Co., 16 BNA
OSHA 2127 (No. 92-0851, 1994) Pride Oil Well Serv., 15 BNA OSHA 1809
(No. 87-692, 1992). The record is void of any written evidence which provides a
detailed description of any procedures to be followed in the lockout/tagout
procedures for the Piercing Mill. The record makes mention of an energy
isolation list, however, this list was not introduced
into the record, and its contents cannot be evaluated. Mr. Beels’ testimony did
not establish how, or if, the procedures he enumerated were communicated to
employees. Furthermore, the undersigned’s previous finding of a violation in
Item 1a, negates a finding that the rules for the lockout/tagout program were
adequately communicated. Additionally, other than the disciplinary action which
resulted from the subject accident, the record is void of any evidence which
establishes that the work rules were effectively enforced when violated.
Classification and Penalty
Section
17(k) of the Act, 29 U.S.C.. §666(k) of the Act,
provides that a violation is “serious” if there is “ a
substantial probability that death of serious physical harm could result” from
the violation. Once a contested case is before the Review Commission, the
amount of the penalty proposed by the Complainant in the Citation and
Notification of Proposed Penalties is merely a proposal. What constitutes an
appropriate penalty is a determination which the Review Commission as the final
arbiter of penalties must make. In determining appropriate penalties
“due consideration” must be give to the four criteria under Section 17(j) of
the Act, 29 U.S.C., §666(j). These “penalty factors” are: the size of the
employer’s business, the gravity of the violation, the employer’s good faith,
and its prior history. J.A. Jones Construction Co., 15 BNA OSHC 2201,
2213-14 (No. 87-2059, 1993). These factors are not necessarily accorded equal
weight. Generally speaking, the gravity of a violation
is the primary element in the penalty assessment. Trinity Indus., Inc., 15
BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular
violation depends upon such matters as the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the
likelihood that any injury would result. J.A. Jones, supra.
The aforementioned violations were grouped for purposes of
penalty because they involve similar hazards. The record establishes that the
violations were high in gravity. The severity of injury was high - serious
bodily injury or death. The record establishes a probability of greater in that
Mr. Lawson suffered serious bodily injury which resulted in time off from work
and permanent scars (Tr. 18-19, 149). Accordingly, this violation was
appropriately classified as serious. Timken is a large employer (Tr. 71). In
view of the gravity of this violation and in order to achieve the necessary
deterrent effect, the undersigned finds that it is appropriate to make no
adjustments to the gravity based penalty of $5,000.00.
Findings of Fact and Conclusions of Law
The
foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
1. Citation 1, Item 1a, alleging a Serious violation §1910.147(c)(7)(I) is
Affirmed.
2. Citation 1, Item 1b, alleging a Serious violation §1910.147(d)(4), as
amended, is Affirmed.
3. A grouped penalty in the amount of $5,000.00 is Assessed.
/s/
Covette
Rooney
Judge,
OSHRC
Dated: July 17,
1998 Washington,
D.C.