Secretary of Labor,

	

 

     Complainant, 

	

 

          v.

	

           OSHRC Docket No. 05-1548

Buckeye Ready Mix, Inc.,

	

 

     Respondent.

	

 


Appearances:


              Patrick L. Depace, Esquire, Cleveland, Ohio 44199

              For Complainant

 

Ronald L. Mason, Esquire,Dublin, Ohio 43017

              For Respondent


Before: Administrative Law Judge Stephen J. Simko, Jr.


DECISION AND ORDER

            Buckeye Ready Mix, Inc., manufactures and delivers ready-mix
concrete to customers in the central Ohio area. On August 8, 2005,
Occupational Safety and Health Administration (OSHA) compliance officer
Bruce Bingham inspected Buckeye’s plant on Taylor Road in Reynoldsburg,
Ohio, in response to Buckeye’s report of an employee fatality. As a
result of Bingham’s inspection, the Secretary issued a Citation to
Buckeye on September 8, 2005, alleging four serious violations of the
Occupational Safety and Health Act of 1970 (Act).

            Prior to the hearing, the Secretary withdrew Item 1 of the
Citation, which alleged a violation of 29 C.F.R. § 1910.132(a). Item 2
alleges a violation of 29 C.F.R. § 1910.147(c)(4)(ii) for failing to
specifically outline the lockout procedure for a concrete-mixer drum.
Item 3 alleges a violation of 29 C.F.R. §1910.147(f)(1) for failing to
follow the prescribed sequence of actions when positioning the mixer
drum with the lockout devices temporarily removed. Item 4 alleges a
violation of 29 C.F.R. § 1910.147(f)(3)(i) for failing to use a
procedure by which each employee uses his own personal lockout device.
Footnote <javascript:WPShow('WPFootnote1',%20WPFootnote1%20)>

            The Judge held a hearing in this matter on March 22, 2006,
in Columbus, Ohio. The parties have filed post-hearing briefs. Buckeye
contends it complied with the terms of 29 C.F.R. § 1910.147(c)(4)(ii),
cited in Item 2 of the Citation. Buckeye asserts the affirmative defense
of unpreventable employee misconduct with respect to Items 3 and 4 of
the Citation.

            For the reasons explained more fully below, Items 2 and 4 of
the Citation are affirmed and Item 3 is vacated.

Background

            Buckeye operates 18 batch plants and owns 140 trucks it uses
to deliver ready-mix concrete to its customers in central Ohio. The
company operates two types of batch plants. In one, the employees weigh
batches of material and load them into concrete-mixer trucks. Buckeye’s
employees then mix the concrete in the trucks and deliver it to the
customers. In central mix plants (the type at issue here), the employees
load the materials into a large central mixer drum, mix them, and
dispense the resulting mixture into trucks for delivery. Mixing at a
central mixing plant is faster and more efficient, but more costly, than
mixing in the trucks.

            Residue from the concrete builds up inside the mixer drum
over time. The buildup of concrete puts stress on the mixer’s bearings.
Eventually the buildup throws the mixer out of its proper rotation,
causing it to vibrate. Every three or four months, a crew is required to
enter the central mixing drum and clean out the old concrete. If the
concrete is “green,” i.e., relatively new, the cleaning process can be
done quickly, in thirty minutes to an hour. If the concrete is older and
has set harder, the process can take three or four hours.

            Jeffrey Tyson was Buckeye’s operations manager for Plant 6,
a central mix plant on Taylor Road in Reynoldsburg, Ohio. In early
August 2005, Tyson instructed plant operator Gary Lowe to clean out the
central mixer drum. Tyson told Lowe he could clean it out the evening of
Friday, August 5, 2005, or he could wait until Saturday, August 6, 2005.
Lowe decided to go ahead and clean the drum Friday night.

            Lowe assembled a crew for the drum cleaning consisting of
loader operator Mark Hall and drivers Chad Owens and Brent Sherburn.
Lowe, Hall, and Owens cleaned out the drum on a regular basis. Sherburn
volunteered to help that night after he finished his day shift. He had
helped clean out a mixer drum only once previously, approximately 15
years prior to August 5, 2005.

            Lowe and Hall, who were childhood friends, worked together
on the periodic cleaning of the drum, sharing responsibility for
completing the task and trading duties. Generally, Lowe would use the
hydraulic controls to tilt the drum so that an opening large enough for
the crew to enter and exit was created between the mixer drum and the
hopper chute connected to it. Hall would watch the drum and tell Lowe
when it was in the correct position. Lowe would then turn off the
hydraulics, and one of them would go downstairs to the electrical room
and turn off the four circuit breakers connected to the mixer. He would
then place four locks provided by Buckeye on the breakers and pocket the
keys.

            On the evening of August 5, 2005, Lowe used the hydraulic
controls to tilt the drum, turned off the hydraulics, and then went
downstairs to the electrical room to turn off the circuit breakers and
lock them out. When he went upstairs, Hall said, “Hey, go down and
unlock it. We’re going to fire the hydraulics back up. . . . I went down
a little far, and it’s going to be tight” (Tr. 30). For the first time
in Lowe’s memory, the drum had to be repositioned after the breakers
were locked out.

            Lowe removed the locks from the circuit breakers, went to
the office to turn the hydraulics back on, and repositioned the drum.
Instead of returning to the electrical room and de-energizing the
circuit breakers and locking them out again, Lowe complied with Hall’s
request to help bring up the hoses used in cleaning out the drum. By the
time Lowe returned with the hoses, Hall was already in the drum and
asking for more equipment to be handed to him. Owens and Sherburn also
entered the drum and proceeded with the cleaning, which went fairly
quickly. After completing the job, Owen and Sherburn exited the drum.
Hall stayed inside, handing equipment out of the opening to Lowe. Lowe
and Sherburn dragged some equipment to the rear of the drum. They heard
a whirring noise, indicative of the drum’s hydraulics starting up. Lowe
ran to the controls, but by the time he got to them, the mixer had
already closed, crushing Hall. He died instantly.

            Compliance officer Bruce Bingham arrived at the plant on
August 8, 2005, and conducted an investigation of the accident. As a
result of his inspection, the Secretary issued the Citation that gave
rise to this proceeding.



Discussion

 

The Secretary has the burden of proving the violation 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
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

 

/Atlantic Battery Co., /19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

 

Alleged Serious Violation of 29 C.F.R. §1910.147(c)(4)(ii)

 

            In item 2 of the Citation the Secretary alleges
(capitalization in the original):

 

The energy control procedures did not clearly and specifically outline
the scope, purpose, authorization, rules, and techniques to be utilized
for the control of hazardous energy, and the means to enforce compliance
including, but not limited to, items A-D of this section:

 

a. The TWELVE STEPS FOR PLANT MIXER DRUMS for LOCKOUT/TAGOUT, step 7,
says to TEST ALL CONTROLS but does not specify what controls, where they
are located and how they are to be tested.

 

b. The TWELVE STEPS FOR PLANT MIXER DRUMS for LOCKOUT/TAGOUT, step 5,
says to LOCKOUT/TAGOUT THE CIRCUIT BREAKER and step 3 says to REMOVE KEY
AND PUT IN ENTRANT’S POCKET, but does not specify which circuits are to
be locked out, how many circuits, where they are located, who locks them
out, who has the locks/keys, and who supervises the lockout procedure.


            The standard at 29 C.F.R. § 1910.147(c)(4)(ii) provides:

The procedures shall clearly and specifically outline the scope,
purpose, authorization, rules, and techniques to be utilized for the
control of hazardous energy, and the means to enforce compliance
including, but not limited to, the following:

(A) A specific statement of the intended use of the procedure;

(B) Specific procedural steps for shutting down, isolating, blocking and
securing machines or equipment to control hazardous energy;

(C) Specific procedural steps for the placement, removal and transfer of
lockout devices and the responsibility for them; and

(D) Specific requirements for testing a machine or equipment to
determine and verify the effectiveness of lockout devices, tagout
devices, and other energy control measures.


            The application section of the standard states at 29 C.F.R.
§ 1910.147(a)(1)(i): “This standard covers the servicing and maintenance
of machines and equipment in which the /unexpected/ energization or
start up of the machines or equipment could cause injury to employees.”
Buckeye does not dispute the cited standard applies to the cited conditions.

            In her first request for admissions, the Secretary made the
following request, which Buckeye admitted (Exh. C-1, Admission #4):

Admit that the document entitled “Lockout/Tagout: Twelve Steps For Plant
Mixer Drums” provided by Respondent to OSHA during the investigation
describes Respondent’s procedure for Lockout/Tagout of the Plant Mixer
Drums that was in place in August 2005.


            The document referred to is a one-page list of twelve steps,
which states in its entirety (Exh. C-2):

LOCKOUT/TAGOUT


TWELVE STEPS FOR PLANT MIXER DRUMS:

 

1.COMPLETE AN “ENTRY NOTICE” AND NOTIFY PEOPLE AFFECTED. POST “ENTRY
NOTICE” NEAR THE DRUM;

 

2.SHUT OFF ALL CONTROLS AT CIRCUIT BREAKER;

 

3.REMOVE KEY AND PUT IN ENTRANT’S POCKET;

 

4.PUT “OUT OF SERVICE” SIGN OVER CONTROL PANEL;

 

5.LOCK OUT/TAG OUT THE CIRCUIT BREAKER;

 

6.SECURE THE DRUM WITH STRAPS OR BLOCKING, IF APPLICABLE;

 

7.TEST ALL CONTROLS;

 

8. USE PROPER TOOLS AND PERSONAL PROTECTIVE GEAR;

Hard hat, safety glasses, gloves dust mask and ear plugs

 

9.COMPLETE WORK, CLEAN UP AREA and CHECK FOR TOOLS;

 

10.REMOVE THE DRUM STRAPS OR BLOCKING, IF APPLICABLE, AND CHECK AREA;

 

11.REMOVE THE TAG FROM THE CIRCUIT BREAKER;

 

12. REMOVE THE “OUT OF SERVICE” SIGN.


ALL LOCKOUT/TAGOUT EQUIPMENT IS TO BE PUT BACK IN STORAGE AREA
IMMEDIATELY AFTER COMPLETING THE JOB.


NOTICE OF ENTRY MUST BE RETURNED TO THE SUPERVISOR WHEN THE JOB IS
COMPLETED.



            Despite this admission, Buckeye argues its energy control
procedure comprises three separate units, which must be viewed
collectively to accurately understand its lockout/tagout (LOTO) program.
In addition to the list of twelve steps, Buckeye also gives its
employees a copy of “Lockout/Tagout Guidelines,” a three-page document
which generally outlines the scope of Buckeye’s LOTO program (Exh.
C-12). Buckeye also shows its employees a videotape (“Module 3
Lockout/Tagout”) on an annual basis as part of its training in LOTO
procedures (Exh. R-3). Taken together, Buckeye argues, the two documents
and the videotape constitute an energy control program that meets the
requirements of 29 C.F.R. § 1910.147(c)(4)(ii).

            The Secretary argues that, even with the addition of the
“Lockout/Tagout Guidelines” document and the videotape, Buckeye’s energy
control program is still inadequate to meet the requirements of 29
C.F.R. § 1910.147(c)(4)(ii). She claims the program is not specific
enough to inform employees of the “scope, purpose, authorization, rules,
and techniques to be utilized for the control of hazardous energy, and
the means to enforce compliance.” She cites three of Buckeye’s rules as
evidence of the program’s lack of specificity (Exh. C-2):

3. REMOVE KEY AND PUT IN ENTRANT’S POCKET;

            . . .

            5. LOCKOUT/TAGOUT THE CIRCUIT BREAKERS;

            . . .

            7. TEST ALL CONTROLS[.]


            The Secretary faults these three rules because they fail to
specify who locks out the circuit breakers, who has possession of the
locks and keys, who supervises the lockout procedure, which circuits are
to be locked out, how many circuits are to be locked out, where the
circuits are located, what controls are to be tested, where the controls
are located, and how the controls are to be tested.

            In the preamble to the final standard, the Secretary
addresses the inclusion of the word “specific” in the language of 29
C.F.R. § 1910.147(c)(4)(ii) (54 Fed. Reg. 36644):

Two of these commenters . . . objected to the use of the word “specific”
when defining the elements of the procedure while one commenter
interpreted the requirement as mandating a generalized procedure for
each plant, as well as a specific procedure for every machine or piece
of equipment.

            . . .

In this final standard, OSHA has retained the word “specific” when
detailing the elements of the procedure. This was done to emphasize the
need to have a detailed procedure, one which clearly and specifically
outlines the steps to be followed. Overgeneralization can result in a
document which has little or no utility to the employee who must follow
the procedure.


            Appendix A to 29 C.F.R. § 1910.147 gives an example of what
is captioned a “Typical Minimal Lockout Procedure.” A comparison between
Appendix A and Buckeye’s procedure demonstrates Buckeye’s lack of
specificity.

            Step 7 of Buckeye’s program is “Test all controls.” The
corresponding step in Appendix A, which is a /minimal /procedure, states:

(7) Ensure that the equipment is disconnected from the energy source(s)
by first checking that no personnel are exposed, then verify the
isolation of the equipment by operating the push button or other normal
operating control(s) or by testing to make certain the equipment will
not operate.


            Appendix A provides a detailed procedure for returning
equipment to service. The equivalent step of Buckeye’s procedure is
boldfaced in brackets:

/Restoring Equipment to Service. /When the servicing or maintenance is
completed and the machine or equipment is ready to return to normal
operating condition, the following steps shall be taken.

(1) Check the machine or equipment and the immediate area around the
machine or equipment to ensure that nonessential items have been removed
and that the machine or equipment components are operationally intact.


            [9. COMPLETE WORK, CLEAN UP AREA and CHECK FOR TOOLS]

 

(2) Check the work area to ensure that all employees have been safely
positioned or removed from the area.

            [No equivalent step.]

(3) Verify that the controls are in neutral.

            [No equivalent step.]

(4) Remove the lockout devices and reenergize the machine or equipment.

            [11. REMOVE THE TAG Footnote
<javascript:WPShow('WPFootnote2',%20WPFootnote2%20)> FROM THE CIRCUIT
BREAKER]

(5) Notify affected employees that the servicing or maintenance is
completed and the machine or equipment is ready for use.

            [12. REMOVE THE “OUT OF SERVICE” SIGN]


            Buckeye argues its energy control procedure is rounded out
by the “Lockout/Tagout Guidelines” and the videotape. The document
entitled “Lockout/Tagout Guidelines” provides a general outline of the
training employees are to receive in LOTO, but the only specific
procedure addressed is “Motor Vehicle Lockout/Tagout Procedure” (Exh.
C-12). Similarly, the videotape addresses safety and LOTO in general
terms, but provides detailed information only on the LOTO procedure for
truck mixer drums; it is silent on the topic of plant mixer drums. The
procedure for locking out a motor vehicle, which has a battery for its
power source, differs significantly from locking out a plant mixer drum,
which has circuit breakers as its energy source.

            Buckeye contends (Buckeye’s brief, p. 7):

OSHA previously reviewed the same procedure at issue here and implicitly
approved it as adequate. On January 15, 2004, OSHA Inspector Jeff See
inspected Buckeye Ready Mix and reviewed its procedures regarding
lockout/tagout procedures and guidelines. R-11, R-12, and R-13). Those
guidelines OSHA reviewed are practically identical to the guidelines at
issue here.(C-2 and C-12). Upon a thorough investigation, Investigator
See found none of the problems with these procedures that OSHA now
claims. (Tr. 170-185).


            Buckeye’s contention fails on two counts. First, Buckeye is
operating under the misconception that if an OSHA compliance officer
fails to cite an employer for a violative condition, then OSHA is
forever barred from citing that employer for the same violative
condition observed in any future inspections. “The Secretary’s failure
to issue a citation for a violation of a standard does not immunize an
employer from future enforcement of that standard.” /Cardinal
Industries, Inc., /14 BNA OSHC 1008, 1013 (No. 82-427, 1989).

            Second, Buckeye is disingenuous in its argument that
compliance officer See reviewed documents “practically identical” to the
documents at issue here. Exhibit R-11, like Exhibit C-2, lists twelve
steps for a LOTO procedure. But Exhibit R-11 is the LOTO procedure for
/truck/ mixer drums. The equipment is different, the energy source is
different, and the controls are different. See’s “implicit” approval of
the LOTO procedure for truck mixer drums is irrelevant to the LOTO
procedure at issue here. Buckeye misrepresents the results of See’s
inspection, then cites the entire 15 pages of his testimony, without
quoting one specific phrase or sentence that actually supports its position.

            The terms of 29 C.F.R. § 1910.147(c)(ii) were not met by
Buckeye. Each of its employees were exposed to the hazards created by
having an inadequate energy control procedure. Management personnel
developed, maintained, and administered the energy control procedures
for its employees. Thus, Buckeye knew of the inadequacies of the
program. An inadequate energy control procedure for employees entering
mixing drums can result in energization or start up of the equipment
causing death or serious physical harm.

            The Secretary has established a serious violation of 29
C.F.R. § 1910.147(c)(ii).


Alleged Serious Violation of 29 C. F. R. § 1910.147(f)(1)

The Secretary charges Buckeye with the violation of 29 C. F. R §
1910.147(f)(1).


            In item 3 of the Citation the Secretary alleges:

 

When lockout or tagout devices temporarily were removed from the energy
isolating device and the machine or equipment was energized to test or
position the machine, equipment or component thereof, the sequence of
actions were not followed in accordance with 29 CFR 1910.147(f)(1)(i)
through (v):

            a.         In the Electrical Room, locks were not reapplied
to the circuit breakers to prevent movement of the mixer drum after it
was positioned so that employees could enter it to chip out the old
concrete exposing the employees to a caught between hazard.


            The standard at 29 C. F. R. § 1910.147(f)(1) provides in
pertinent part:

In situations in which lockout or tagout devices must be temporarily
removed from the energy isolating device and the machine or equipment
energized to test or position the machine, equipment or component
thereof, the following sequence of actions shall be followed:

            . . .

(v) Deenergize all systems and reapply energy control measures in
accordance with paragraph (d) of this section to continue the servicing
and/or maintenance.


            Buckeye does not dispute the cited standard applies to the
cited conditions. It admits in its answer to the Secretary’s first
request for admissions that on “August 5, 2005, in the Electrical Room,
locks were not reapplied to the circuit breakers after they had been
temporarily removed” (Exh. C-1, admission no. 5). In light of Hall’s
death, it is clear that the failure to comply with the cited standard
exposed employees to death and serious physical injury.

            The Secretary has failed, however, to establish Buckeye had
knowledge of Lowe’s failure to comply with 29 C. F. R. § 1910.147(f)(1).
No supervisory personnel were present the night of Hall’s death. The
crew cleaned out the drum after normal work hours were over, with only
the plant operator and maintenance employees present. Lowe had properly
locked out the circuit breakers for the plant mixer drum after
positioning the drum for entry by the work crew. For the first time in
memory, the drum needed to be repositioned after it was locked out.
After repositioning the drum, Lowe was distracted by requests by Hall
for help with equipment, and he forgot to lock out the circuit breakers
again. Lowe’s inadvertent oversight was tragic, but Buckeye had neither
actual nor constructive knowledge that the crew would need to reposition
the drum, or that after having done so, Lowe would forget to lock out
the circuit breakers a second time. Item 3 is vacated.

                                    Alleged Serious Violation of §
1910.147(f)(3)(i)


            In Item 4 of the citation [which was amended from alleging a
violation of § 1910.147(f)(3)(ii)(D)] the Secretary alleges:

            a.         In the Plant Mixer Drum, each employee chipping
out old concrete did not apply their [sic] own lock to the circuit
breaker switches so the mixer drum could not move until all exposed
employees were out of the drum.


            The standard at 29 C. F. R § 1910.147(f)(3)(i) provides:

 

When servicing and/or maintenance is performed by a crew, craft,
department or other group, they shall utilize a procedure which affords
the employees a level of protection equivalent to that provided by the
implementation of a personal lockout or tagout device.


            Buckeye admits in its answer the Secretary’s first request
for admissions that on “August 5, 2005, in the Plant Mixer Drum each
employee chipping out old concrete did not apply their [sic] own lock to
the circuit breaker switches” (Exh. C-1, admission no. 6). Footnote
<javascript:WPShow('WPFootnote3',%20WPFootnote3%20)> Buckeye does not
dispute application of the standard and employee exposure.The company
argues its LOTO procedure incorporates the use of individual locks by
each crew member, but Lowe and Hall unilaterally decided to change the
procedure. Buckeye argues it had no knowledge its employees had altered
its LOTO procedure, but the record establishes the company had
constructive knowledge of the violative conduct.

            Lowe testified that either he or Hall kept the keys to all
four locks because the hydraulics on the drum were defective and would
“leak off,” causing the drum to drift shut. Footnote
<javascript:WPShow('WPFootnote4',%20WPFootnote4%20)> Lowe and Hall were
concerned that if members of the crew had keys to individual locks with
them, they would be trapped inside the drum. Lowe and Hall decided the
better method was for one of them to stay outside the drum while the
rest of the crew was inside cleaning. Footnote
<javascript:WPShow('WPFootnote5',%20WPFootnote5%20)> Whichever of the
two stayed outside the drum retained possession of the keys. Lowe stated
(Tr. 54):

We locked the box with one lock because whoever had to be outside had
that lock and turned the hydraulics back on and tilted it down so people
could get out. If you [were] in there and hour, it would drift maybe a
couple of inches and get back out. If you [were] in there a couple of
hours chipping, it was too far shut to get out. If you worked for four
hours, you could barely just reach your hand inside.


            Lowe stated the plant mixer drum was approximately 10 years
old and that its hydraulics had started leaking approximately a year
after it was installed in the plant. Buckeye’s management personnel were
aware of the problem (Tr. 79):

Q. Did you ever tell anybody about this [leak]?


            Lowe: They knew it would leak shut, I’m sure, yes.


            Q. “They” who?


            Lowe: It would have been [operations manager] Jeff [Tyson],
I guess, on the leakage.


            Q. How did he know?

 

Lowe: See, I don’t know–he knows it would drip some. I don’t know if he
knew much of anything.


            Q. How do you know this?

 

Lowe: Well, he’s been up there too when we’ve had it up and it’s dropped
down when we weren’t in it or something, we were in another dryer or
something, it would drop down a little bit, and you could see where it
had dropped. I mean, as to how much, I have no idea if he knew or
anything like that.


            Lowe testified he and Hall never explicitly told management
they had changed the lockout procedure (Tr. 81-82):

Q. So, you didn’t talk to anybody about your procedure you came up with?

 

Lowe: No, Mark and I came up with that as the only way we could get in
and out, yes, because if it was to drift shut, you’re shut. You can’t
get back out.


            Q. Did you ever tell Jeff about this?


            Lowe: No, I don’t recall saying anything.


            Q. Was he ever out there when the chipping operation was–


            Lowe: He had been out there when we were chipping, yes.


            Q. Now, you say you had done this kind of procedure for like
three or four months?

 

Lowe: About every three or four months. That’s an average. I mean, it
depends on how much concrete you run. . . .


            Q. How long were you doing the procedure of you keeping the
keys?

 

Lowe: Well, it would be Mark part of the time. If I went in, Mark would
hold the keys. It was just whoever was outside.


            Q. How long was that going on; that kind of procedure?


            Lowe: Probably, eight, nine years.

            Although there is no evidence Buckeye had received direct
information that the members of the crew cleaning out the mixer drum did
not have individual locks, there is evidence Buckeye had constructive
knowledge of this fact. To prove constructive knowledge, the Secretary
must show that the employer could have discovered the violative
condition with the exercise of reasonable diligence. "Whether an
employer was reasonably diligent involves a consideration of several
factors, including the employer's obligation to have adequate work rules
and training programs, to adequately supervise employees, to anticipate
hazards to which employees may be exposed, and to take measures to
prevent the occurrence of violations." /Donohue Indus., Inc./, 20 BNA
OSHC 1346, 1349 (No. 99-0191).

            Lowe and Hall had been using their improvised procedure for
eight to nine years, three or four times a year. At least two dozen
times over the course of at least eight years a crew of four people (and
not always the same four people) failed to follow OSHA regulation and
company procedure. Jeff Tyson, Buckeye’s supervisor of this plant, was
present during the chipping operation on at least one occasion during
that eight year period. A company exercising reasonable diligence would
have, at some point, discovered the change in procedure. Worse, the
reason Lowe and Hall changed the procedure in the first place was out of
their concern for safety when cleaning out a mixer drum that drifted
dangerously. Adequate supervision would have detected both the change in
procedure and the underlying problem that occasioned the change. See
/Carlisle Equip. Co. v. United States Secretary of Labor/, 24 F.3d 790,
794 (6th Cir. 1994) ("reasonable diligence implies effort, attention,
and action not mere reliance upon the action of another"). The Secretary
has established constructive knowledge and, with it, Buckeye’s violation
of the cited standard. Respondent failed to require employees to apply
their own locks to circuit breaker switches or to utilize a procedure
that provided employees equivalent protection so the mixer drum could
not move. That failure could cause death or serious physical harm if
employees were in the mixer when it began to move.

            Buckeye argues its crew’s failure to comply with the terms
of 29 C. F. R. § 1910.147(f)(3)(i) resulted from the unpreventable
employee misconduct of Lowe and Hall. In order to establish the
affirmative defense of unpreventable employee misconduct, an employer is
required to prove (1) that it has established work rules designed to
prevent the violation, (2) that it has adequately communicated these
rules to its employees, (3) that it has taken steps to discover
violations, and (4) that it has effectively enforced the rules when
violations are discovered. /Precast Services, Inc., /17 BNA OSHC 1454,
1455 (No. 93-2971, 1995), /aff’d without published opinion, /106 F. 3d
401 (6th Cir. 1997).

            Buckeye does not have a written work rule designed to
prevent the violation of 29 C. F. R. § 1910.147(f)(3)(i). Step 3 of its
LOTO procedure states (Exh. C-2): “Remove key and put in entrant’s
pocket.” There is no further information on how multiple entrants are
supposed to coordinate the lockout procedure. Buckeye’s videotape does
not address group lockout in any detail. It is questionable just how
“established” a work rule can be when it has not been observed for the
last eight years.

            Assuming, for the sake of argument, that Step Three
constitutes an established work rule, the record is clear it was not
adequately communicated to its employees. Lowe testified he did not know
he had violated any company safety rules until speaking with counsel for
Buckeye, several days before the hearing (approximately seven months
after the accident). When asked at the hearing if he had violated a
company safety rule the day of the accident, Chad Owens replied, “No,
not that I recognize” (Tr. 101). Larry Randles, Buckeye’s vice president
of operations, stated that only Lowe had violated company procedure,
specifically Step 2 (“Shut off all controls at circuit breaker”) and
Step 5 (“Lockout/tagout the circuit breaker”). Randles did not mention
Step 3, or the other members of the crew failing to use multiple locks.

            Buckeye took no steps to discover the violation. The
modified procedure had been ongoing for eight to nine years, without
anyone in management noticing. Tyson, the plant supervisor, had been
present on at least one occasion when Lowe and Hall were cleaning out
the drum.

            No one was disciplined for the accident that resulted in
Hall’s death. Buckeye argues that disciplining the three members of the
crew would have been pointless. They were traumatized by Hall’s death.
He was a close friend to all of them, as well as a co-worker.  The court
is sympathetic to Buckeye’s position, but just as the Secretary is
required to prove each and every element of her case, the employer is
required to prove each and every element of its affirmative defense.
Buckeye has failed to prove this element, as it failed with the other
three. The employee misconduct defense is rejected.

            The Secretary has established a serious violation of 29 C.
F.R. § 1910.147(f)(3)(i).

PENALTY DETERMINATION


            The Commission is the final arbiter of penalties in all
contested cases. In determining an appropriate penalty, the Commission
is required to consider the size of the employer’s business, history of
previous violations, the employer’s good faith, and the gravity of the
violation. Gravity is generally the principal factor to be considered.

            Buckeye employs approximately 250 employees. OSHA had
inspected and cited the company for “other” violations in 2004. Buckeye
demonstrated good faith in its handling of this proceeding.

            The gravity of the violation of 29 C. F. R . §
1910.147(c)(4)(ii) (Item 2) is high. The energy control program is the
employee’s first resource for information regarding LOTO procedure. If
the program is incomplete, vague, or scattered over several parts, the
employee is at risk for receiving inadequate or incorrect information.
It is determined the appropriate penalty for Item 2 is $ 4,000.00.

            The gravity of the violation of 29 C. F. R. §
1910.147(f)(3)(i) is very high. In this instance, if every crew member
used his own lock, the chances are greatly increased that at least one
of them would have remembered to lockout the circuit breakers after they
were re-energized to reposition the mixer drum. As stated in the
preamble, “the placement of a personal lockout or tagout system device
enables that employee to have a degree of control over his/her own
protection, rather than having to depend completely upon other
people.”Lowe testified that locking out the circuit breakers again
slipped his mind once he started helping with the equipment. A penalty
of $ 4,000.00 is appropriate.


FINDINGS OF FACT AND

CONCLUSIONS OF LAW


            The foregoing decision constitutes the findings of fact and
conclusions of law in accordance with Rule 52(a) of the Federal Rules of
Civil Procedure.


ORDER

 

            Based upon the foregoing decision, it is ORDERED that:

            1. Item 1 of the citation, alleging a violation of § 29
C.F.R. 1910.132(a), is withdrawn by the Secretary and no penalty is
assessed;

            2. Item 2 of the citation, alleging a violation of § 29
C.F.R. 1910-147(c)(4)(ii), is affirmed and a penalty of $ 4,000.00 is
assessed;

            3. Item 3 of the citation, alleging a violation of § 29
C.F.R. 1910.147(c)(1), is vacated and no penalty is assessed, and

            4. Item 4 of the citation, alleging a violation of § 29
C.F.R. 1910.147(f)(3)(i), is affirmed and a penalty of $4,000.00 is
assessed.     

 

 

/s/ Stephen J. Simko, Jr. STEPHEN J. SIMKO, JR.

                                                                                                Judge


Date: October 16, 2006