UNITED STATES PIPE AND FOUNDRY COMPANY
OSHRC Docket No. 11739
Occupational Safety and Health Review Commission
January 26, 1978
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman H. Winston, Associate Reg. Sol., USDOL
H. Gerald Reynolds, U.S. Pipe and Foundry Co., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
On October 28, 1975, Administrative Law Judge Paul L. Brady found respondent in serious violation of section 5(a)(1) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"] because three of the respondent's employees were working on a coal screw conveyor without having first locked out the main power supply to the conveyor. The Judge assessed a $700 penalty. Thereafter, respondent petitioned the Commission to review the Judge's decision with respect to the following two issues:
(1) Whether the Administrative Law Judge erred in holding that § 5(a)(1), the general duty clause, rather than the standard at 29 C.F.R. § 1910.145(f)(3)(iii), was applicable to the alleged violation.
(2) If not, whether the evidence established a violation of § 5(a)(1).
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n1 Sec. 5.(a) Each employer-
(1) shall furnish to each of his employees employment and a place of employment which are free from recogniaed hazards that are causing or are likely to cause death or serious physical harm to his employees;
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Former Commissioner Moran granted the petition for review. After consideration of the record we conclude that § 5(a)(1) is applicable under the circumstances of this case and that complainant proved a violation of § 5(a)(1) by a preponderance of the evidence adduced at hearing. Judge Brady's decision is therefore affirmed.
The undisputed facts presented at the hearing reveal that on December 9, 1974, a coal screw conveyor in the blast furnace area of respondent's boiler house had broken and during the course of the repair, one of respondent's employees, Doug Hamrick, a boilermaker-welder, was fatally injured when the main power switch to the conveyor was turned on. The screw conveyor was located on the third level of the boiler house and the main power switch was on the ground level. The power switch was neither tagged nor locked out at the time it was activated.
The boilermaker foreman, Harold Roper, testified that when he found the conveyor sheared, he told the water-tender who was responsible for the floor work associated with boilers (i.e., checking fans, pumps, bearings and operation of [*3] the coal system) to turn off the electric power switch. He testified that nothing was said about tags or locks. Roper than requested Hamrick and his helper, Percy Smiley, to assist in the conveyor's repair. Roper also testified that he later reminded Smiley to "check" the power switch. Roper again said nothing about tags or locks. He also testified that he never personally checked the switch and that it was "some time" between his requests to Hamrick and Smiley that they fix the screw conveyor and the time they actually started work on the conveyor.
Finally, Roper testified that during the course of his 20-year employment with respondent, respondent's safety rules required each employee working on electric-powered machinery to personally pull the switch and tag it. He stated that, although he had seen lockouts, the procedure of locking out was not part of respondent's general practice.
A machinist, Glenn Sullins, testified that he was directed by his foreman to work on the conveyor. He testified that he personally observed the main power switch to the conveyor in an "off" position, but that it was neither tagged nor locked out. He further testified that after the machinists [*4] had completed placing the shaft into the conveyor and just as Hamrick was preparing to weld the shaft, the conveyor commenced operation, catching Hamrick's leg. A fatal injury resulted. Sullins ran to the main power switch, which had not been either tagged or locked out and which was in the "on" position, and threw the switch to the "off" position.
Additionally, Sullins testified that it was the general practice at U.S. Pipe and Foundry to use tags as shown in respondent's Exhibit 1, that he had previously been instructed by his foreman in the procedure for tagging out machinery, and that safety meetings were held daily. He stated that he had not placed a tag on the main switch prior to the time of the accident nor had anyone told him to do so.
Smiley testified that during the 29 years he had worked for respondent he had never been instructed to tag or lock out a switch. He also testified that he was aware that respondent's rules required the tagging out of such switches. He further testified that he attended daily safety meetings. It was his understanding that the mechanic responsible for a particular job had the responsibility to tag out the appropriate switch.
The compliance [*5] officer testified that he conducted the inspection of respondent's workplace the day following the fatality. He stated that the main power supply switch to the screw conveyor was the type that could be locked out and that it was a generally recognized practice to have a lockout procedure for switches of this type while work was performed on machinery controlled by such a switch. The compliance officer testified that respondent's vice-president of operations stated at the closing conference that respondent had a written procedure for locking out switches. The vice-president told him that such procedure was enforced, "but maybe not strictly." The compliance office opined that no particular standard applied to the circumstances of the case.
At the beginning of the hearing, the respondent moved to vacate the citation, arguing that the standard found at § 1910.145(f)(3)(iii) n2 was the standard to be applied under the circumstances. Judge Brady denied the motion, concluding that "[a] complete reading of section 1910.145 does not indicate that a specific standard has been promulgated for the protection of the employee working under the conditions found to exist." He noted that § 1910.145 [*6] is captioned "Specifications for accident prevention signs and tags" and provides in part:
Scope. (1) These specifications apply to the design, application, and use of signs or symbols . . . [(as included in paragraphs (c) through (e) of this section)] intended to indicate and, insofar as possible, to define specific hazards of a nature such that failure to designate them may lead to accidental injury to workers or the public, or both or to property damage . . . ."
He also noted that § 1910.145(f)(1) "specifically restricts the use of tags until a 'positive means' can be employed to eliminate the hazard." He concluded that the use of DO NOT START tags with nothing further ". . . would be inadequate for the purpose of eliminating the hazard alleged by the Secretary in this case." Finding that "the evidence establishes that respondent failed to take adequate and reasonable measures to ensure protection of the employees by the effective blocking of the starting mechanism which cause[d] the hazardous condition," the Judge found respondent in violation of § 5(a)(1) of the Act.
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n2 § 1910.145 Specifications for accident prevention signs and tags.
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(f) Accident prevention tags.
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(3) Do not start tags.
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(iii) Do Not Start tags shall be placed in a conspicuous location or shall be placed in such a manner that they effectively block the starting mechanism which would cause hazardous conditions should the equipment be energized.
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In its brief before the Commission, respondent argues that the Judge erred in denying its motion to vacate the § 5(a)(1) citation because a specific standard, 29 C.F.R. § 1910.145(f)(3)(iii), is applicable to the situation. In this connection, respondent takes issue with the Judge's findings that § 1910.145 was not promulgated for the protection of employees working under the conditions found to exist and that compliance with § 1910.145 would be inadequate to eliminate the hazard. It also contends that the Commission and several of its Judges have previously found § 1910.145 to be an enforceable standard under similar circumstances. Respondent also argues that the Judge's reliance upon the "scope" provision found in § 1910.145(a) as a statement of purpose for § 1910.145(f) was misplaced in that § 1910.145(a) expressly limits its own application to § 1910.145(c) through (e). n3
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n3 Considering 29 C.F.R. § 1910.145 in its entirety, the Commission concludes that the absence of a reference to paragraph (f) in paragraph (a) was an administrative error.
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Respondent further asserts that there was no evidence to rebut the testimony that employees faithfully honored tag-out requirements and that the language and warning on the "Do Not "Start" tags was amply clear to protect employees. Relying upon National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir., 1973) and Richmond Block, Inc., 74 OSAHRC 3/A2, 1 BNA OSHC 1505, 1973-74 CCH OSHD para. 17,137 (No. 82, 1974), respondent argues that even if the circumstances warrant a § 5(a)(1) citation, the citation and penalty should be vacated because the record clearly shows that the accident would not have occurred if the employees had followed the tag-out procedure.
We find no merit in respondent's contentions. The respondent argues that it cannot be required to lock out because 29 C.F.R. § 1910.145(f)(3)(iii) is the specific standard directed to the hazard of inadvertently starting machinery and the standard requires only tagging. Thus, it contends that a citation for violation of § 5(a)(1) is inappropriate and must be vacated. Although we agree with respondent that a violation [*9] of § 5(a)(1) will not lie if a specific standard is applicable, n4 we disagree with respondent's position that the tagging requirement of § 1910.145(f)(3)(iii) is directed at the hazard for which respondent was cited.
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n4 This precedent is well-established. See Claude Neon Federal Co., 77 OSAHRC 104/A2, 5 BNA OSHC 1546, 1977-78 CCH OSHD para. 21,887 (No. 13810, 1977).
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Clearly, § 1910.145(f)(1) recognizes that the use of tags is an interim measure as it states that they "shall be used for a few moments or a very short time until the switch in the system can be locked out." Thus, the use of tags under § 1910.145(f)(3)(iii) is contemplated to be a short-term temporary protective measure. Inasmuch as there is no specific standard requiring the elimination of the hazard subsequent to the initial "few moments" or "very short time" during which tags are to be used, § 5(a)(1) can apply so as to require protective measures after this initial time period. n5
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n5 See also, Hillsdale Lumber and Manufacturing, Inc., 77 OSAHRC 54/D2, 5 BNA OSHC 1281, 1977-78 CCH OSHD para. 21,766 (No. 5815, 1977) (dissenting opinion).
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The decisions cited by respondent are not controlling in this case. We also reject respondent's contention that the evidence fails to establish a § 5(a)(1) violation. To establish a violation of the general duty clause, the Secretary must prove "(1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.'" National Realty & Constr. Co., Inc. v. O.S.H.R.C., supra, 489 F.2d at 1265. All of these elements were extablished in this case.
Respondent's written procedure for the use of lockouts shows that respondent itself recognized that machinery which was inadvertently started during servicing would be hazardous to the employees working on it. H-30, Inc., 77 OSAHRC 156/A2, 5 BNA OSHC 1715, 1977-78 CCH OSHD para. 22,050 (No. 76-752, 1977). The compliance officer also testified that the hazard [*11] was likely to cause serious physical harm or death. Based on this testimony, Judge Brady found that "[T]here is no doubt that the risk of starting the coal screw conveyor . . . was a 'recognized hazard,' and certainly the hazard is 'likely to cause death or serious physical harm.'" We agree.
The evidence also shows that respondent failed to render its workplace "free" of that hazard. Although respondent had a written procedure for locking out electrical switches, it was not strictly enforced. The parties stipulated that the lockout devices offered in evidence as respondent's Exhibits 2 and 3, which consisted of a standard type lock and standard lockout, were appropriate for use "in the type of situation in issue." n6 However, there was no evidence that lockout mechanisms were available to employees. Furthermore, there is no evidence that the employees were instructed in their use or that there was a policy to encourage or enforce their use. Thus, respondent failed in its obligation to "render its workplace 'free' of [the] hazard."
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n6 This evidence and the compliance officer's testimony demonstrates the feasibility of locking out the main power supply to the conveyor. See National Realty & Constr. Co. v. O.S.H.R.C., supra.
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Accordingly, the Judge's decision is affirmed.