K-MART
OSHRC Docket No. 77-270
Occupational Safety and Health Review Commission
August 31, 1982
[*1]
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor, USDOL
Truman Q. McNulty, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Review Commission Judge George W. Otto is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Otto vacated a citation which charged Respondent, K-Mart, with violating section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), n1 by failing adequately to protect employees from certain hazards arising out of the operation of a cardboard box compactor. For the reasons that follow we reverse the judge and affirm the citation.
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n1 Section 5(a)(1) provides:
SEC. 5.(a) Each employer --
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
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The [*2] citation resulted from an accident at one of Respondent's stores involving a Bra-Con baler, a machine that compresses and bales cardboard boxes. n2 The baler is leased by Respondent from its owner, Radiographics, but it is operated by Respondent's employees. The baler is shaped like a vertically upright cabinet that is tall enough for a person to stand in when the ram is in its upper or lower position. Inside the superstructure are a horizontal ram which descends to compress the cardboard, and a vertical hydraulic cylinder which operates the ram. The ram pushes the cardboard down into the lower portion of the machine. In the front of the baler is a door which covers the lower portion of the baler. The open space above the door is covered by a safety gate which moves up and down with the ram. The safety gate is designed to protect employees from injury due to the downward movement of the ram. Thus, if an employee places a hand or arm in the space between the top of the door and the ram while the ram is coming down, the ram will automatically reverse its direction when the safety gate comes in contact with the employee.
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n2 The exact circumstances and cause of the accident in which an employee was crushed in the baler are unknown.
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Other safety features on the baler are the control panel, automatic cutoff of the motor, and a door limit switch. The control panel is located on the upper right hand side of the front of the baler. The top control is a disconnect lever which energizes the machine. The "bale eject" button determines the machine's function, i.e., compressing or baling, and the selector button determines the ram's cycle, i.e., up or down only or a full cycle starting in the up position. The bottom button turns the motor off or on, thereby activating the ram. This button is pulled out to turn the machine on and pushed in to turn it off.
Normally, the motor cuts off automatically after the ram completes its intended movement (up or down or a single full cycle). However, an electrical malfunction can cause the motor to continue running after the ram has stopped moving, and such a malfunction occurred at least once in the year preceding the accident. The final [*4] safety feature, the door limit switch, stops the ram whenever the door is opened. With the door open, the ram will move only when an employee continues to hold the bottom button in the on position.
The baler performs two basic functions: compressing and baling. Any employee can compress cardboard boxes, but only stockroom personnel are authorized to perform the baling operation. The top three buttons or levers on the control panel are customarily left in the positions necessary to perform the compressing operation, so an employee need only throw the box to be compressed through the opening between the top of the door and the bottom of the safety gate and then pull out the bottom on-off button. When this is done, the ram automatically goes through a single cycle, thereby compressing the box, and the motor automatically shuts off. The process is repeated until all boxes have been compressed.
To perform the baling operation, a stockroom employee first brings the ram down to hold the cardboard in place. The employee then opens the door and places five wires around the cardboard. These wires are inserted through slots in the back of the machine and tied together at the front of [*5] the baler. The machine is then activated to eject the bale.
The record establishes that it is never necessary for Respondent's employees to go into the baler to perform the compressing and baling operations. Frequently, cardboard becomes lodged between the ram and the sides or back of the superstructure. This cardboard will not interfere with the compressing operation and therefore there is no need to remove the cardboard during this operation. However, the cardboard does interfere with the baling operation because it precludes employees from inserting wires through the baler. Accordingly, employees have been provided sharp instruments that they use to poke holes in the cardboard so that the wires can be inserted.
Although it was not necessary for them to do so, several of Respondent's employees went into the baler to dislodge cardboard. Kenneth Pflugradt, the injured employee, testified that he climbed into the baler to remove cardboard approximately once a night for the two months preceding his accident. He further testified that he had observed two other stockroom employees, including his supervisor, climb onto the ram during the baling operation in order to dislodge cardboard. [*6] To enter the baler, employees climbed the ledges on the outside of the door while the door was closed, thus circumventing the door limit switch. In addition, Kelly Gratz, who was also a stockroom employee, testified that he had seen employees "a lot [of times]" lift up the safety gate and reach across the ram in order to pull out cardboard. Gratz conceded that he had done this in conjunction with compressing, as well as baling, because "some people, if they saw that boxes were struck in there, would just leave their boxes and not crush them."
Several employees testified concerning the instructions they had received in operating the baler. When the baler was first leased and installed, which was over two years prior to the incident in question, the store manager gave a demonstration and instructions to all employees. The manager issued a strict prohibition against any employee at any time placing a hand, an arm or any part of the body into the baler and further stated that any employee who violated this rule would be terminated.
Those employees who began working for Respondent after this initial training session were taught how to operate the baler by their supervisors or by [*7] stockroom employees. The nature and extent of this later training varied. Some employees received the same instructions from their supervisors or stockroom employees that had originally been given by the store manager. On the other hand, Pflugradt, who was trained by his stockroom supervisor, testified that the only safety instruction he received was to keep his hands out of the baler when the ram was moving. He further testified, without contradiction in this record, that he climbed on top of the ram to remove cardboard because he had seen his supervisor do so.
Respondent's employees did not service or repair the baler. This work was performed by Hiram Anderson, an employee of Radiographics, the lessor of the baler. Anderson, who serviced 114 balers on a regularly scheduled basis, testified that he routinely instructed his customers that employees should never enter the baler to pull out cardboard. When asked why this instruction was given, Anderson replied:
I think it is just like there are so many possibilities sometimes, acts of God, I don't know what you call it, things that enter your mind when you get involved with machinery that
I just, like, we just don't want the [*8] man in the machine. The platen is up there, there is a lot of weight up there, there is no reason for him to take any chance.
Anderson testified that he de-energized the baler by removing the fuses before he worked on it.
Judge Otto concluded that Respondent's employees were adequately trained in safe operation of the baler and vacated the citation. Commissioner Cottine directed the Secretary's petition for review in which the Secretary argues that Respondent's safety program did not free the workplace of the hazard. Respondent argues that its safety program was adequate, that the baler's mechanical safety features effectively protected employees from the hazard during normal operations, and that injury could occur only as the result of idiosyncratic employee misconduct.
In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or [*9] materially reduced the hazard. E.g., Jones & Laughlin Steel Corporation, 82 OSAHRC , 10 BNA OSHC 1778, 1982 CCH OSHD P26,128 (No. 76-2636, 1982). We conclude for the reasons that follow that the Secretary has met his burden of proving each of these elements in this case.
The hazard at issue is the possibility of a crushing injury due to movement of the ram during routine operation of the baler. A recognized hazard is a condition or practice in a workplace that is known to be hazardous by either the industry in general or the employer in particular. Respondent's recognition of the hazard is evidenced by the instructions that the store manager gave shortly after the baler was first installed prohibiting any employee from placing any part of the body within the baler at any time. In addition, Respondent knew that the baler was equipped with safety features, particularly the safety gate, that were specifically designed to prevent crushing injuries caused by the ram. See, e.g., Ted Wilkerson Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 2016, 1981 CCH OSHD P25,551 at p. 31,856 (No. 13390, 1981) (issuance of a work rule shows employer recognition of the hazard.) [*10] Moreover, in view of Anderson's extensive experience with Bra-Con balers, his repeated warning that operating employees should never go inside the baler, and the reasons underlying his warnings, clearly show the hazard was recognized by the industry.
Respondent argues in effect that the baler's safety features and the training and instructions it provided employees rendered the workplace "free" of the hazard posed by movement of the ram. We do not agree. An employer's duty under section 5(a)(1) is to free its workplace of recognized hazards that are likely to cause death or serious harm. When elimination of a hazard depends on employee compliance with safety rules, the employer must take all feasible steps to assure that employees comply with the rules. Feasible steps for assuring employee observance of safety procedures include work rules designed to prevent the violation at issue, effective communication of those rules to employees, employer efforts to discover violations, and employer enforcement of the rules when violations are discovered. See General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979); National Realty and Construction [*11] Co. v. OSHRC, 489 F.2d 1257 (DC Cir. 1973); Little Beaver Creek Ranches, Inc., 1982 OSAHRC , 10 BNA OSHC 1806, 1982 CCH OSHD P26,125 (No. 77-2096, 1982); Jones & Laughlin Steel Corp., supra; Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1981 CCH OSHD P25,470 (No. 76-1174, 1981).
We reject Respondent's argument that the baler's safety features and the training and instructions Respondent provided employees rendered the workplace "free" of the hazard posed by movement of the ram during routine operation. Although the evidence shows that the baler is safe when employees are operating it properly and there is no electrical malfunction, the record also establishes that on several occasions employees have operated the baler improperly and electrical malfunctions have occurred that pose a danger to those employees. Consequently, the baler's safety features do not eliminate the hazard. For example, the safety gate provides effective protection against a crushing hazard to an employee who stands at the control panel and operates the baler, but it cannot provide protection to an employee who circumvents this safeguard by lifting the safety gate [*12] to reach over the ram or who climbs over the door and safety gate onto the ram. Respondent's employees engaged in both of these activities.
These examples establish that it was necessary for Respondent to supplement the machine's physical safeguards with adequate employee training and safety instructions in order to satisfy its obligation under section 5(a)(1). n3 Respondent's safety program was not, however, adequate. Respondent attempted to establish an effective work rule when Respondent's store manager instructed all employees that they should never place a part of their bodies into the baler. However, at the time of pflugradt's accident, it had been over two years since the training session when that instruction was given. There is no evidence that employees who received their training at this initial session were ever reminded of this work rule. Moreover, employees who were taught how to operate the baler after the initial session were not instructed to keep out of the baler at all times. The injured employee, pflugradt, for example, testified without contradiction that he was instructed only to avoid entering the baler when the ram was actually moving.
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n3 The Secretary has not suggested any method of machine guarding in addition to those already in use on the baler as a means of protecting Respondent's employees.
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In addition, Respondent failed to take adequate steps to effectively enforce its work rule, including measures to discover violations of the rule. The number of incidents of employees -- including supervisory employees -- entering the baler demonstrates that Respondent did not effectively monitor employee compliance or discipline employee non-compliance. As the United States Court of Appeals for the District of Columbia Circuit noted in National Realty & Construction Co. v. OSHRC, 489 F.2d at 1267 n.38, the fact that a supervisor feels free to breach a company safety policy is strong evidence that implementation of that policy is lax. The hazard in this case could have been materially reduced if Respondent had adequately trained and instructed its employees. n4
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n4 Because the Secretary met his burden of proving that Respondent failed to take adequate measures to establish and communicate an effective work rule, Chairman Rowland does not find it necessary to decide whether an employer may properly be required to enforce work rules which have been communicated to employees. For a discussion of the question whether an employer should be required to do anything more than give instructions to employees regarding proper safety procedures, see General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976); Borton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD P25,983 (No. 77-2115, 1982) (dissenting opinion), petition for review docketed, No. 82-1661 (10th Cir., May 26, 1982).
[*14]
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Based on our conclusion that Respondent failed to take the steps necessary to assure that employees operated the baler safety, we reject Respondent's contention that the Secretary is seeking to impose strict liability. Because employees frequently entered the baler and because the machine has previously had electrical malfunctions, we cannot agree with Respondent that injury could only occur as the result of idiosyncratic misconduct or "freakish . . . circumstances."
The Secretary satisfied his burden of proving that the hazard was causing or likely to cause death or serious physical harm by introducing evidence concerning the pressure exerted by the ram. The Secretary's evidence also shows the existence of "pinch points" where an employee could be crushed due to movement of the ram or the safety gate, and hospitalization and extensive lost time could result.
Finally, the Secretary established the feasibility of materially reducing the hazard by providing adequate training and instructions to employees in safe operation of the baler. n5
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n5 We vacate the allegation that Respondent violated section 5(a)(1) by failing to establish procedures for locking out the source of power at the main disconnect switch. We conclude that the Secretary failed to prove that establishing lockout procedures was a precaution that would have eliminated or materially reduced the hazard at issue. The purpose of a lockout device in this context would be to protect an employee working inside the baler from the possibility that a second employee might activate the ram without knowing that he was thereby endangering the first employee. However, the record establishes that there was no need for Respondent's employees to go inside the baler. We note that the baler was serviced by Anderson, the Radiographics employee, who locked out the baler by removing the fuse. Hence, lockout procedures are unnecessary if effective work rules preclude entry into the baler.
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Accordingly, we find that a violation of the general duty clause has been established and reverse the judge.
SO ORDERED.