Vandervoort's Dairy Foods Company

Plain-English summary

Vandervoort's Dairy Foods Company distributed dairy products and fruit drinks at a Fort Worth plant where an employee died after being caught in a depalletizer. OSHA cited the company for inadequate training under the lockout/tagout standard. The judge found the cited standard inapplicable to the described manual unloading process because restarting the depalletizer required another employee to take deliberate, visible, multistep actions. Although the record showed potentially contradictory instructions about unjamming the machine, the Secretary did not prove that employees performing the cited operation faced unexpected reenergization. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(7)(i)
• Outcome: The sole lockout/tagout training citation was vacated.
• Key point: The cited training requirement did not apply where the described servicing method did not expose employees to unexpected equipment startup.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 02-2175
VANDERVOORT’S DAIRY FOODS
COMPANY, and its successors,
Respondent.

APPEARANCES:

      For the Complainant:
             C. Elizabeth Fahy, Esq., Madeleine Le, Esq., Office of the Solicitor, U.S. Department of
             Labor, Dallas, Texas

      For the Respondent:
             Ellen L. Perlioni, Esq., Steven R. McCown, Esq., Littler Mendelson, Dallas, Texas

Before: Administrative Law Judge: Sidney J. Goldstein

                                     DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
Respondent, Vandervoort’s Dairy Foods Company, and its successors, (Vandervoort’s), at all times
relevant to this action maintained a place of business at 900 S. Main St., Fort Worth, Texas, where it was
engaged in the distribution of dairy products and fruit drinks . Respondent admits it is an employer
engaged in a business affecting commerce and is subject to the requirements of the Act.
On July 22, 2002, a Vandervoort’s employee, Julio Albarran, was crushed in a “depalletizer”
machine at Vandervoort’s Fort Worth plant. Following the fatal accident, the Occupational Safety and
Health Administration (OSHA) conducted an inspection of the work site. As a result of that inspection,
Vandervoort’s was issued a citation alleging violation of the standard at 29 C.F.R. §1910.147(c)(7)(i),
together with proposed penalties. By filing a timely notice of contest Vandervoort’s brought this
proceeding before the Occupational Safety and Health Review Commission (Commission).
On July 16, 2003 a hearing was held in Dallas, Texas. The parties have submitted briefs on the
issues and this matter is ready for disposition.
Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 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.

   Location: Vandervoort’s Dairy/Milk Vault # 2, Product Receiving Dock
   On or about July 22, 2002 an employee was fatally injured when he was caught in the depalletizing
   equipment he was operating. It was determined through observation and employee interview that
   a pallet got jammed and the employee attempted to unjam the pallet. Though the LO/TO
   procedures for the depalletizer was posted it did not address the issue of the pallets getting stuck.
   The employee was not adequately trained in the purpose and use of the company’s energy control
   procedure.
   Vandervoort’s maintains that the adjustment of product to unjam the machine is not an operation

covered by the standard. In the alternative, Vandervoort’s argues that it provided the required level of
LO/TO training.
Facts
The deceased, Julio Albarran, was an order picker at Vandervoort’s (Tr. 27). On July 22, 2002,
Albarran was stocking half gallons using the depalletizer (Tr. 28). On that date another Vandervoort’s
employee, Gustavo Gonzales, found Albarran pinned between the cases and a backstop located on the far
side of the conveyor belt (Tr. 30; Exh. C-1). The depalletizer was on and in automatic mode (Tr. 30-31).
Gustavo Gonzalez testified that he had worked as an order picker at Vandervoort’s for
approximately two years (Tr. 15). During that time, he operated the depalletizer, a machine used to offload
cartons of product from pallets (Tr. 16, 59; Exh. C-1). During offloading, a pallet loaded with stacks of
cartons is placed on the depalletizer’s sliding platform. The platform then retracts, bringing the pallet in
front of the depalletizer’s pusher arm. The arm pushes the product forward onto a conveyor belt, which
carries the product, by stacks, into Vandervoort’s vault (Tr. 60, 80; Exh. C-1). Gonzalez testified that he
was trained to run the depalletizer by another employee, Hilario Reyes (Tr. 18). According to Gonzalez,
Reyes told him which buttons to push to run the machine (Tr. 18-20). Reyes never specifically taught him
about problems he might have with the depalletizer (Tr. 18-19). However, he stated, during the course of
his training product would catch on the edge of a pallet and become jammed. While the machine was still
running in automatic mode, Reyes would stand on a platform on the side of the machine and give the pallet
a shake to free the product (Tr. 21-24, 55). Once freed, the product would move onto the conveyor chain
(Tr. 25-26). Gonzalez testified that he learned how to unjam the product by watching Reyes (Tr. 21, 25).
Gonzales was never told to turn off the machine before shaking the product loose from the pallet (Tr. 26-
27).

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During his initial orientation, Gonzalez was instructed in the general provisions of Vandervoort’s
lockout/tagout procedures (Tr. 32-34, 40-45; Exh. D-54, D-55, D-56, D-59). As part of the orientation,
Gonzalez completed a quiz in which he acknowledged that he was never to place any part of his body into
a moving piece of machinery (Tr. 35-37; Exh. D-57). Gonzales was specifically instructed to “turn the
pushers off before trying to unjam them” and to “[n]ever put any part of your body into the pusher while
it is on.” (Tr. 46; Exh. D-56, ¶8).
Mark Hall, a stocker and receiving clerk with Vandervoort’s, also operates the depalletizer (Tr. 58-
59). Hall testified that product jams between the pusher and the lip of a pallet a dozen or more times a day
(Tr. 76-77). As a new employee, another stocker trained him to turn off the depalletizer before removing
jammed product (Tr. 62-63). According to Hall, after turning the machine to “manual”, he removes the
pusher arm from the product, and deenergizes the depalletizer by turning off all the power sources (Tr. 77,
87). Specifically, Hall turns off an off/on switch on the front of the panel and presses a button on the back
of the panel that cuts off power to the controls (Tr. 90). Hall testified that he then uses a hook to maneuver
the stacks of product onto the conveyor (Tr. 63, 77-78, 87). Respondent’s Exhibit D-65 shows Hall
inserting his hands and arms into the stacks of product to maneuver the stacks with the hook (Exh. D-65).
Hall testified that he can see the depalletizer’s control panel from the platform where he stands while
manually adjusting stacks of product (Tr. 85-86). He stated that anyone walking up to the controls would
be able to see him (Tr. 86). The hook is only used when unjamming product from plastic pallets, however
(Tr. 64). When product is stuck on a wooden pallet, Hall uses the same method as Gonzales to free the
product. Hall climbs up onto the platform and gives the product a shove with his hands to free it from the
pallet’s wooden slats (Tr. 64, 93, 95). The arm can then push the product onto the conveyor (Tr. 64, 93).
When unjamming product from a wooden pallet, Hall leaves the machine in the automatic mode (Tr. 93).
Hall received training in general lockout/tagout procedures during his initial orientation (Tr. 72-75;
Exh. D-43, D-44, D-45). He was never trained as an “authorized” employee.
Gary Wyler, Vandervoort’s regulatory compliance manager (Tr. 143), and Louis Herrera,
Vandervoort’s human resource manager (Tr. 99), testified that Albarran received lockout/tagout training
during his new employee orientation (Tr. 109, 147-53; Exh. D-6, D-7, D-8, D-9). Herrera testified that he
and Albarran discussed Vandervoort’s employee handbook, including the rule prohibiting employees from
placing any part of their bodies into a moving piece of machinery (Tr. 112, 119, D-13, D-14). Herrera
showed Albarran a safety video dealing, in part, with lockout/tagout issues (Tr. 115-16; Exh. D-66). Wyler
testified that he conducted Albarran’s orientation training, and discussed with him the purpose and use of
Vandervoort’s lockout/tagout procedures (Tr. 154, 164). Albarran’s training file includes, inter alia, a

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signed document in which Albarran indicated that he recognized Vandervoort’s rule requiring him to turn
the pusher off before trying to unjam it, and to never put any part of his body into the pusher while it is on.
(Tr. 149; Exh. D-5). Albarran was out due to a non work-related injury during Vandervoort’s annual
training for “affected” employees, and so did not receive refresher training in 2001 (Tr. 162-66; Exh. C-
21). Wyler admitted that Albarran was not trained as an “authorized” employee (Tr. 167). Wyler also
stated that he did not personally show Albarran how to run the depalletizer, and did not know if Albarran
was ever trained in the proper method of unjamming product from the machine (Tr. 166-67).
James Randy Scaggs, the production supervisor at Vandervoort’s, testified that employees get up
on the depalletizer to rock the cases to get them unhung “the way they were shown to do it.” (Tr. 174).
According to Scaggs, adjusting product stuck on a pallet was a routine procedure (Tr. 177). However,
Scaggs testified, there was no reason for an employee to place his body in front of the pusher while
adjusting product. Doing so would have been a violation of Vandervoort’s safety rules (Tr. 171, 177, 180).
Vandervoort’s has lockout/tagout procedures for the depalletizer (Exh. D-11). The procedures
recognize that reenergizing the depalletizer creates pinch points which may endanger employees servicing
the equipment, and sets out procedures for locking out the equipment. The procedures require that affected
employees be notified, the depalletizer shut down, and the equipment isolated from its energy source. The
procedures require that all compressed air and hydraulic pressure be bled down, and the absence of
pressure verified. Maintenance personnel are then to lockout and/or tagout the equipment using the locks
and tags assigned to them, and verify that the equipment has been disconnected by pressing the start button
(Exh. D-11).
Discussion
The cited standard provides:

      (7) Training and communication. (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.

       (B) Each affected 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.




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In order to prove a violation of Section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that: (1) the standard applies to the conditions cited; (2) the terms of the
standard were not met; (3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of reasonable diligence. See, e.g.,
Offshore Shipbuilding, Inc., 18 BNA OSHC 2170, 2171, 2000 CCH OSHD ¶32,137, p. 48,443 (No. 99-
257, 2000).
Applicability. 29 C.F.R. §1910.147 The control of hazardous energy (lockout/tagout) covers
the servicing and maintenance of machines and equipment, including lubrication, cleaning, unjamming1
and/or making adjustments or tool changes where employees may be exposed to the unexpected
energization or startup of the equipment or to the release of hazardous stored energy. See, 29 C.F.R.
§1910.147(a), (b). The lockout/tagout standard requires employers to “establish a program and utilize
procedures for affixing appropriate lockout devices or tagout devices to energy isolating devices and to
otherwise disable machines or equipment to prevent unexpected energization, startup or release of stored
energy. . .” 29 C.F.R. §1910.147(c). The standard covers servicing and/or maintenance which takes place
during normal production operations only if:
(A) An employee is required to remove or bypass a guard or other safety device; or
(B) An employee is required to place any part of his or her body into an area on a
machine or piece of equipment where work is actually performed. . .(point of operation) or
where an associated danger zone exists during a machine operating cycle.

    As noted above, Vandervoort’s argues that the adjustment of product to unjam the depalletizer is

not an operation covered by the standard, as it neither requires the removal of a guard, nor requires
employees to place any part of their bodies into a danger zone created by the machine’s operating cycle.
In addition, Vandervoort’s argues, the standard is inapplicable because operators unjamming the
depalletizer have a clear view of the depalletizer’s control panel, precluding any unexpected activation.
Employee exposure to the point of operation. The record establishes that Vandervoort’s
employees use two different methods to unjam the depalletizer. It is not the practice of the depalletizer
operators to deenergize the equipment before attempting to shake product loose from the slats of a wooden
pallet, as that adjustment does not require them to put any part of their bodies in an area where they might
be caught by the machine. When plastic pallets are jammed, however, the evidence establishes that
Vandervoort’s stocking clerks deenergize the depalletizer and eliminate any residual energy by retracting

       1
           Vandervo ort’s attempt to distinguish unjamming machinery from unjamming prod uct stuck in the

machinery is unconvincing .

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the pusher arm before manually unloading product jammed against the lip of the pallet. It is clear from
Vandervoort’s demonstration video that when unloading manually with a hook, employees place their
hands and arms in the zone of danger created by the machine’s operating cycle. According to employee
Hall, jams occur perhaps a dozen times a day, requiring the equipment’s operators to routinely deenergize
the machine prior to unloading product manually.
Unexpected activation. Vandervoort’s maintains that operators unjamming the depalletizer are
in no danger from the unexpected activation of the equipment, citing General Motors Corp., Delco Chassis
Division, 17 BNA OSHC 1217, 1995 CCH OSHD ¶30,793 (Nos. 91-2973, 91-3116 & 91-3117, 1995)
[multi-step procedure involving lights and alarms prevented the unexpected reactivation of the cited
equipment]. As noted by Respondent, once the depalletizer is turned off for servicing, it cannot be
reactivated unless another employee deliberately turns on the power to the control panel, sets the machine
to automatic mode, and activates the pusher arm. An employee energizing the control panel could not fail
to see the operator unloading product manually from the depalletizer. The safeguards required by the cited
standard are intended to protect employees only from the unexpected reactivation of equipment attributable
to inadvertence. No lockout/tagout procedures can protect employees from the deliberate and malicious
actions of another. The Secretary has not shown, by a preponderance of the evidence, that Vandervoort’s
depalletizer operators are exposed to the danger of the depalletizer unexpectedly starting up while manually
unloading the depalletizer in the manner described in this record. This record does not support the
Secretary’s contention that lockout/tagout procedures should have been employed by employees
unjamming the depalletizer in said manner. Because the evidence does not establish that the cited standard
was applicable to the described operation, the alleged violation must be vacated.
This judge recognizes that the decedent does not appear to have been following the described
procedures when he was caught in the depalletizer. The depalletizer was not deenergized, and there is no
evidence that Mr. Albarran was using the hook. There is also evidence that depalletizer operators may
have received contradictory instructions in the proper means of performing their jobs. While told in
orientation to turn off the depalletizer when unjamming the machine, it appears to have been common
practice to leave the machine in automatic while shaking wooden pallets to unjam them. Such
contradictory instructions may confuse employees as to the proper means of avoiding hazards present in
their work. However, they do not constitute a violation of the lockout/tagout standards where, as here, the
evidence fails to establish that employees performing the cited operations were exposed to the hazard of
unexpected reenergization.

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ORDER

1. Citation 1, item 1, alleging violation of 29 C.F.R. §1910.147(c)(7)(i) is VACATED.

                                                /s/
                                               Sidney J. Goldstein
                                               Judge, OSHRC
   

Dated: November 19, 2003

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