HILLSDALE LUMBER & MANUFACTURING

OSHRC Docket No. 5815

Occupational Safety and Health Review Commission

April 19, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Regional Solicitor

Clifford Duvall, President, Hillsdale Lumber & Manufacturing Inc., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A November 21, 1974, decision of Review Commission Judge Henry C. Winters is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation which alleged that respondent had violated 29 U.S.C. 654(a)(2) by failing to place a "Do Not Start" tag on a starting switch for the cutter heads of a planer "during change over maintenance operation" as required by the occupational safety standard codified at 29 C.F.R. 1910.145(f)(3)(iii). n1 For reasons that follow, we affirm.

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n1 That standard provides in pertinent part that:

"Do Not Start" tags shall be placed in a conspicious 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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The judge concluded that vacation of the citation was required because:

[I]t was the failure to lock out the controls rather than the failure to use some kind of a tag which was the gravamen of the offense . . . ."

The Judge's conclusion is correct for the reasons stated in his decision which is attached hereto as Appendix A.

In his brief on review, complainant urges us to amend the citation and complaint to allege noncompliance with 29 C.F.R. 1910.213(b)(5). That standard provides that:

"On each machine operated by electric motors, positive means shall be provided for rendering [machine controls and equipment] inoperative while repairs or adjustments are being made to the machine they control." (Emphasis added.)

The complainant's inspector testified at the hearing that three lockouts for the planer switch were available, and complainant concedes in his review brief that lockouts were present. Since respondent has provided a "positive means . . . for rendering" its planer "inoperative," there can be no violation of section 1910.213(b)(5). If complainant desires to require the use of such means, it is "a matter easily remedied [*3] under the flexible regulation promulgating structure." Diamond Roofing Co. v. OSAHRC, No. 73-3704 (5th Cir., March 15, 1976).

Accordingly, the Judge's decision is affirmed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, concurring.

I concur in the disposition. On review the Secretary admits that the gravamen of the alleged violation was Respondent's failure to lock out the start switch for the planer's cutting heads. He asks that we amend the citation. Alternatively, he asks that we affirm the citation for failure to tag the switch.

The Judge refused to amend saying it is too late. I note that the Secretary opposed amendment before the Judge. Accordingly, I agree; the motion comes too late. See Roof Engineering Co., No. 6972, 4 OSHC 1942, 1976-77 OSHD para. 21,416 (R.C., January 4, 1977) (concurring opinion). In any event, the standard by its plain terms only requires that positive means be provided for rendering equipment inoperative, and it is clear that such means were provided. To find a violation because the means were not used is to imply a requirement into the standard and is to rewrite its terms. I find nothing in the standard itself which would support a use requirement, and [*4] there is no evidence of record (as there cannot be in view of the Secretary's opposition before the Judge) as to the intent of the original authors of the standard. In these circumstances I would not imply that requirement.

As for the Secretary's alternate argument, I think it inappropriate to find a violation and assess a penalty for failure to tag when the Secretary admits, as he does in this case, that the offense is something different, i.e., the failure to lock the switch out.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I would affirm the citation as issued, and hold that respondent violated section 5(a)(2) of the Act by failing to comply with 29 CFR 1910.145(f)(3)(iii).

Respondent operates a sawmill in Tacoma, Washington. It uses an electric motor-driven planer in its operations. On the day of the inspection, an employee was replacing the cutter heads and a plate over the planing head. The switch of the planer was in an "off" position, but there was no "DO NOT START" tag or other warning on the switch. Also, the planer was capable of being locked out, but was not. Respondent was issued a citation alleging that it had failed to comply with 29 CFR 1910.145(f)(3)(iii) which [*5] reads as follows:

1910.145 Specifications for accident prevention signs and tags.

* * *

(f) Accident prevention tags.

* * *

(3) Do not start tags.

* * *

(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.

There is no question that respondent failed to comply with this standard. The Judge held, however, that it was not the most specifically applicable standard, and therefore vacated the citation. Judge Winters considered 29 CFR 1910.213(b)(5) to be more specifically applicable. I disagree. That standard reads as follows:

1910.213 Woodworking machinery requirements.

* * *

(b) Machine controls and equipment.

* * *

(5) On each machine operated by electric motors, positive means shall be provided for rendering such controls or devices inoperative while repairs or adjustments are being made to the machine they control.

As the Judge noted, "Do Not Start" tags are a temporary form of protection used to inform personnel that equipment is not to be energized. They are properly [*6] employed only until a positive means can be engaged to eliminate a hazard. This much is clear from subparagraph (f)(1), the scope and purpose provision of section 1910.145. Indeed that provision states, as an example of the proper application of the standard, that "a Do Not Start tag shall be used for a few moments or a very short time until the switch in the system can be locked out . . . ."

Inasmuch as the switch on the planer in question was not locked out respondent was then obliged to place a "Do Not Start" tag on the machine. It failed to do this, and so it was properly cited for a failure to comply with subparagraph (f)(3)(iii).

The error of the Judge's reasoning is that he failed to appreciate that both standards can apply to the same machine in their own way. The Judge stated:

In light of the requirements of 1910.213(b)(5), there is no reason at all for a person changing cutting heads of a planer to have occasion to use a "Do Not Start" tag. Rather he should see to it that the controls are locked out before he starts to take the machine apart. Then he will not unnecessarily create the kind of hazard requiring the temporary protection of the "Do Not Start" tag.

Judge's [*7] decision at 7. This of course assumes the ideal case, that positive lock-out means can or will be immediately engaged in all cases. There may, however, be cases in which positive lock-out means cannot be immediately used, or are not immediately available, or have not yet been put to use. In these cases, at a minimum a "Do Not Start" tag should be used until a positive lock-out is engaged. Under this reading, both standards are given their reasonable application. n2

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n2 I consider it significant that the two standards are derived from two separate and distinct sources. Section 1910.145(j) is from ANSI Z35.2-1968, Specifications for Accident Prevention Tags. See 29 CFR 1910.147. Section 1910.213 is from ANSI 01.1-1954 (R-1961), Safety Code for Woodworking Machinery. See 29 CFR 1910.221.

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I also do not agree with the Judge that "it was the failure to lock out the controls rather than the failure to use some kind of a tag which was the gravamen of the offense. . . ." Judge's decision at 7. Respondent could [*8] have been properly cited for a failure to comply with either standard, or could have cited in the alternative for a failure to comply with both. There is therefore no single gravamen that can be focused upon to the exclusion of the other. Nor do I agree with Chairman Barnako that the Secretary has admitted the correctness of the Judge's plainly incorrect view of the legal theory of the case. I have carefully examined the pleadings, briefs and other submissions in this case, and have been unable to find anywhere any statement that even remotely resembles a concession that the gravamen of the violation is not a failure to tag the switches. At most, there is a contention that the failure to lock-out the controls theory was tried in addition to the failure to tag theory. Nowhere does there appear an admission that the former theory wholly controls the case.

Even if one standard or the other could logically be said to be "more specifically applicable," the issue is highly technical and the citation should not be vacated without careful inquiry as to whether the pleadings can be amended under Fed. R. Civ. P. 15(a) or (b), as applied by Commission Rule 2(b), so that a decision on the [*9] merits could be made. The statutory purpose of preventing violative conditions and practices should be served by freely permitting amendments when there is no procedural prejudice so that allegations under the most specifically applicable standard are tried. See Carr Erectors, Inc., BNA, 4 OSHC 2009, 1976-77 CCH OSHD, para. 21,471 (1977) (dissenting opinion).

Finally, I do not join in the majority's narrow reading of 29 CFR 1910.213(b)(5). Unlike the majority, I conclude that the wording of the standard, when considered in light of its own objective and the purposes of the legislation it was adopted to implement, does support a requirement that the lock-out equipment be used as well as provided. The objective of the standard is to protect employees repairing or making adjustments to machinery. This objective is not met fully if the employer is left free merely to furnish the lock-out devices for employees but not undertake responsibility to see that they are used. It is insufficient to say that the standard is not explicit enough, for "it is not an adequate discharge of duty for [us] to say: We see what you are driving at, but you have not said it, and therefore we [*10] shall go on as before." Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, Circuit Justice). See also Santa Fe Transp. Co., 5 OSAHRC 840, BNA 1 OSHC 1457, CCH 1973-74 OSHD para. 17,029 (No. 331, 1973) (dissenting opinion); rev'd, 505 F.2d 869 (10th Cir. 1974). Also, the plain meaning of the standard is that the employer is to protect employees by positive means from the operation of machines during times of repair and adjustments. The majority's reading of the standard apparently places the final responsibility for compliance on the employees, rather than the employer. It is well settled that final responsibility for occupational safety and health rests with the employer. Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974).

APPENDIX A

DECISION AND ORDER

Charles G. Preston, for complainant

Clifford Duvall, for respondent

Henry C. Winters, Judge

STATEMENT OF THE CASE

This is an action under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) to affirm a citation charging a serious violation of 29 CFR 1910.145(f)(e)(iii) and to affirm a proposed penalty of $500.

Citation Number 2 was issued [*11] December 11, 1973 following an inspection on December 4, 1973 of a worksite and place of employment maintained by Respondent at Tacoma, Washington. The citation described the type of violation as "serious" and further alleged as follows:

Date by which

Standard allegedly

alleged violation

violated

Description of alleged violation

must be corrected

29 CFR 1910.145(f)(3)(iii)

Failure to place a "Do Not

Dec. 18, 1973

Start" tag or other temporary

means of warning on or near

the "on-off" switches for the

cutter heads on the planer to

prevent starting of machine

during change over maintenance

operation.

Notification of Proposed Penalty, issued December 11, 1973, proposed a penalty of $500 for such serious violation.

By notice of contest in the form of a letter, dated December 19, 1973, Respondent contested the citation.

By complaint, filed January 7, 1974, the Secretary seeks to have the citation and proposed penalty affirmed.

By answer in the form of a letter, dated January 4, 19/4, Respondent alleges that the violation alleged as serious is of "the nonserious class" and that the penalty is excessive, giving reasons for such contentions.

Hearing was held before [*12] this Judge at Seattle, Washington on April 11, 1974. Respondent was not represented by an attorney at law. No employee or employee representative participated as a party. A brief was filed on behalf of the Secretary, none on behalf of the Respondent.

DISCUSSIONS FINDINGS AND CONCLUSIONS

The Respondent at all times herein pertinent was and is engaged in a business affecting commerce. This Commission has jurisdiction of the parties and of the subject matter of this action.

During the course of a walk-around inspection, the compliance officer observed an employee referred to as the planer setup man replacing the cover plates over the spindle on a planer, a power operated piece of woodworking machinery. The compliance officer did not observe but was told that the setup man had just replaced the cutting heads on the planer. The compliance officer observed that the switch which activated the cutting head on the planer was in the "off" position, had the capability of being locked out but was not, and there were no "Do Not Start" tag or tags of similar import on the switch. This switch was across the aisle from where the setup man was working and approximately 10 feet to the [*13] north from the bin. Fuses in an electrical panel which were the source of the energy to operate the planer could have been removed but were not.

The compliance officer did not observe any other employee in the vicinity of the switch which was turned off. When asked if other employees were working in the building that would or could use the passageway alongside the planer, the compliance officer testified (TR 28-29):

Yes. The resaw operator, as I stated before, was working right outside the entry to the planer building, and there was also a forklift driver who would take the material from the resaw back and forth, once he would get a load completed. And, as a matter of fact, any of the employees are -- I was told by Mr. Duvall that any of the employees are very versatile and they shift around. For instance, he said the people operating the sticker mill today, "They are the sticker mill operators because that is what we need, but they could change over and do planer work if that is what is needed."

Another thing, Mr. Jones, I was told by Mr. Axlund, his normal job description is resaw operator, but he is also the setup man for the planer. Now, while Mr. Jones was doing the [*14] setting up of the planer, there was another man who was operating the resaw, so I concluded, in my judgment, that at any time any of the employees, for any reason, might be passing by that same passageway, or management, or the inspecting team, State or such as us, that we were doing.

When asked to describe the hazard to justify a serious violation, the compliance officer testified (TR 31):

In my judgment, if anyone passing by inadvertently were to flip on the switch while the man had his hands in the machine next to the cutter, he would suffer physical harm. He might not get killed, but he very probably would lose a hand or some finger.

In order to activate the switch it would have to be pulled toward a person passing by. Accidentally bumping it would not be likely to turn it on. The switch was "very loose to the feel." (TR 32).

There is no evidence that any management official of Respondent knew that the setup man had not removed fuses or otherwise made certain that the planer could not be turned on while the cutting blades were being replaced.

The foregoing are the basic facts. The first question for determination is what does the cited standard require the Respondent to [*15] do under such circumstances.

The standard referred to in the citation as having been violated reads as follows:

1910.145 Specifications for accident prevention signs and tags.

* * *

(f) Accident prevention tags.

* * *

(3) 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.

A person of common intelligence could not know from reading the above-quoted language when a "Do Not Start" tag is required. The cited portion of the standard tells one where and how a "Do Not Start" tag should be placed but does not tell one what conditions must exist before this kind of tag must be used.

When one reads the standard at 29 CFR 1910.145 in its entirety one gets a better, although still somewhat vague, idea of the purpose of a Do Not Start tag and when it is required to be used. Paragraph (a) of this standard tells us that the specifications apply to the design, application and use of signs intended to indicate and define specific hazards of such a nature that failure to designate them may lead to accidental injury to workers. [*16] n1 Subparagraph (1)(i) of paragraph (f) tells us that accident prevention tags are a temporary means of warning all concerned of a hazardous condition, defective equipment or radiation hazards. n2 Such tags are not be considered as a complete warning method, but "should" be used until a positive means can be employed to eliminate the hazard. This paragraph then states:

. . . for example, a "Do Not Start" tag on power equipment shall be used for a few moments or a very short time until the switch in the system can be locked out; . . . (Emphasis supplied).

Subparagraph (ii) of paragraph (f)(1) tells one that accident prevention tags should be used in industry, mercantile establishments, "or wherever such tags can be utilized to help prevent accidental injury to personnel or damage to property or both." n3

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n1 The standard as written was intended also for the protection of the public and of property.

n2 The "etc." referred to in this part of the standard is redundant and meaningless.

n3 Our concern in this case is with possible accidental injury to personnel who are employees.

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When one considers the possible application of 29 CFR 1910.145(f) to the facts of the instant proceeding, one must take into account the provisions of the standard at 29 CFR 1910.213(b)(5) which provides as follows:

1910.213 Woodworking Machinery Requirements

* * *

(b) Machine controls and equipment.

* * *

(5) On each machine operated by electric motors, positive means shall be provided for rendering such controls or devices inoperative while repairs or adjustments are being made to the machines they control.

In the light of the requirements of 1910.213(b)(5), there is no reason at all for a person changing cutting heads on a planer to have occasion to use a "Do Not Start" tag. Rather he should see to it that the controls are locked out before he starts to take the machine apart. Then he will not unnecessarily create the kind of hazard requiring the temporary protection of the "Do Not Start" tag.

Actually, it was the failure to lock out the controls rather than the failure to use some kind of a tag which was the gravamen of the offense committed by Respondent on the day of the inspection. In answer [*18] to a question from the Judge, the compliance officer stated that if the workman had removed the electrical fuses and had them in his pocket at the time of the inspection, no citation would have been recommended.

There is evidence to sustain a charge of nonserious violation of 29 CFR 1910.213(b)(5). But the Respondent has not been charged with such a violation and it is too late to do so. The citation here involved and the penalty proposed therefor must be vacated.

ORDER

Accordingly, IT IS ORDERED that Citation Number Two, issued December 11, 1973, and Notification of Proposed Penalty, issued December 11, 1973, to the extent that it proposed a penalty for the violation alleged in Citation Number Two, be and they hereby are vacated; and the Complaint be and it hereby is dismissed.

Dated at Seattle, Washington this 21 day of November 1974.

HENRY C. WINTERS, Judge