G.A. West & Co., Inc.

Plain-English summary

G.A. West was a resident contractor at an Alabama pulp mill where an employee was seriously injured near a pulp machine and later died. OSHA's citation addressed different employees who had installed electrical conduit beneath the operating machine several days earlier without locking it out. The judge held that the lockout standard applied because the conduit work modified and therefore serviced the pulp-machine system, but OSHA still had to prove that the installation required close contact with moving machinery. Conflicting and unreliable measurements did not establish that the employees came closer than two feet to moving parts, and the physical layout made contact from a fall unproven. The judge vacated the serious citation and proposed $6,300 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.261(b)(1)
• Outcome: The serious lockout citation and proposed $6,300 penalty were vacated.
• Key point: Even when a lockout standard applies to servicing work, OSHA must prove that the work required entrance into or close contact with the machinery as the cited provision requires.

Full text (OSHRC public release)

                                          United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 08-0400
G. A. West & Co., Inc.,
Respondent.

Appearances:
Angela Donaldson, Esq., U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
For Complainant

      W illiam E. Hester, III, Esq., and Cecily L. Kaffer, Esq., The Kullman Firm, New Orleans, Louisiana
      For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

      G. A. West & Co., Inc., is a resident contractor at a pulp mill owned by Alabama River Pulp

(ARP) in Perdue Hill, Alabama. On October 6, 2007, G. A. West employee Joel Andrus sustained
serious injuries while under the pulp machine at ARP’s mill. He was taken by ambulance to a
hospital, where he subsequently died from his injuries. Occupational Safety and Health
Administration (OSHA) compliance officers Dimitrios (Jim) Critopoulos and Brian Smith arrived
at ARP’s mill on October 24, 2007, to inspect the accident site. Critopoulos returned to the site
several more times. Upon his recommendation, the Secretary issued a citation to G. A. West on
February 21, 2008, alleging a serious violation of 29 C. F. R. § 1910.261(b)(1), for failing to lock
out machinery before allowing employees to work in close contact with the machinery. The
Secretary proposed a penalty of $ 6,300.00 for the violation. G. A. West timely contested the
citation.
The court held a hearing in the matter on July 29 and 30, 2008, in Mobile, Alabama. At the
hearing, G. A. West stipulated to jurisdiction and coverage (Tr. 4-5). The parties’ cross motions for
summary judgment and the Secretary’s motion to amend the citation to indicate a time period for
the alleged violation were held in abeyance, to be ruled on in this decision (Tr. 15). The parties have
filed post-hearing briefs.
G. A. West concedes it did not lock out the pulp machine. It also concedes its employees
were following company instructions at the time of the alleged violative conduct, so G. A. West was
aware of their activities. G. A. West’s affirmative defense of employee misconduct was not pursued
because the Secretary determined the violative conduct concerned the work performed by Dale Lett
and Michael Medley between October 1 and 6, 2007, and not the conduct of Joel Andrus on October
6, 2007. (Tr. 14-16).
Four issues emerged from the hearing:
(1) Did the Secretary fail to give G. A. West its statutorily mandated walk-around rights
when Critopoulos returned to the site after his initial visit?
(2) Is the citation faulty and not actionable because it did not indicate when the alleged
violation took place?
(3) Does § 1910.261(b)(1) apply to the cited conditions?
(4) If § 1910.261(b)(1) does apply, were employees exposed to the violative condition?
For the reasons discussed, the parties’ cross motions for summary judgment are denied. The
Secretary did not violate G. A. West’s walk-around rights. The Secretary’s motion to amend the
citation is granted to allege the violative conduct occurred at the mill between October 1 and 6,
2007. Also, § 1910.261(b)(1) does apply to the cited conditions, but the Secretary failed to establish
G. A. West’s employees were exposed to “close contact” with the cited machinery. Item 1 of the
citation is vacated.
Facts
ARP owns and operates a pulp mill in Perdue Hill, Alabama. G. A. West performs work for
ARP at the mill under two contracts: a maintenance contract and a capital improvements contract.
The capital improvements contract covers expansions to and modifications of equipment (Tr. 109­
111).
ARPs’s pulp machine processes sheets of pulp and deposits those sheets onto a “layboy
table” (or “cutter layboy table”) that begins in a raised position and lowers as the machine deposits
more pulp on the table. The layboy is weight-driven and drops gradually as the machine deposits
more pulp, until a maximum weight is reached and the table drops to within 8 to 10 inches of the

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floor. After the layboy table drops to the floor, the pulp is transferred to the “transfer table” at the
north end of the pulp machine. The transfer table rotates and carries the pulp away to be compressed
and packaged for shipping. After the layboy table drops to the floor, it remains there for
approximately 20 seconds as the pulp is transferred to the transfer table. The layboy table then rises
to its starting point and the machine deposits more pulp on it. Under normal operation, the machine
loads the layboy table with pulp in less than 2 minutes. The pulp machine operates 24 hours a day,
7 days a week (Exh. C-1; Tr. 29-32, 119-120, 242-243, 260-261).
If the machine malfunctions, it stops processing pulp and an alarm sounds. The conveyor
belts beneath the machine begin rolling to take away the “broken” pulp. In the event of a
malfunction, the layboy table automatically stops and the conveyor belts automatically start. The
layboy table will not move during a malfunction (Tr. 40-41, 50-51, 123, 172-173, 261).
In Fall 2007, ARP installed a new motor and variable speed drive on its pulp machine. The
new motor and drive allows the pulp machine operator to control the speed at which the machine
bundles the pulp. G. A. West did not install the motor and drive, but did install approximately 30
feet of conduit and the wires that run through the conduit from the motor control center (MCC) to
the new motor and drive. The conduit installation was done under G. A. West’s capital
improvements contract with ARP (Tr. 112-116).
G. A. West electrical superintendent Jerold Medley supervised five G. A. West employees
for the conduit installation project, including his nephew Michael Medley and Dale Lett. Sometime
between October 1 and 6, Medley and Lett installed conduit (three 10-foot sections), working for
approximately an hour in the “maintenance tunnel” underneath the pulp machine. ARP continued
operating the pulp machine while Medley and Lett installed the conduit (Tr. 36-37, 110-113, 140­
141, 270).
To access the area under the pulp machine on the south side, Lett and Medley entered an
opening approximately 62½ inches high and 38 inches wide. On the north side, the opening was 58
inches high and 24 inches wide. Other pipes and structural pieces underneath the machine were
lower than the north and south entrances. Lett is 5 feet, 8 inches, tall. Medley is 6 feet tall (Tr. 37­
38, 171, 290).
A 10-inch high concrete dike surrounds three conveyor belts underneath the pulp machine.
The concrete dike angles away from the center of the area under the pulp machine, where the middle

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conveyor belt is located. Lett and Medley stood beside one another, each by the angle of the dike
on either side of the center, as they handled the conduit. This was the lowest conduit, installed at
the bottom of the conduit rack under the pulp machine. The employees attached the conduit with
clamps to “straps,” “flat plates,” and “flat bars” to secure the conduit. The installation required Lett
and Medley to stand underneath the pulp machine, between the concrete dike and the moving layboy
table, as the machine operated. The conduit rack which held several conduits was between the
employees and the moving layboy table. The employees secured the conduit to four clamps spaced
across the length of the conduit, using a socket wrench to manually tighten the nuts and bolts. The
nuts and bolts faced towards the rising and falling layboy table, and away from where Lett and
Medley were standing (Tr. 39-40, 47-50, 108, 153-155, 280, 284-288).
On October 6, 2007, G. A. West employee Joel Andrus was discovered lying on the floor
near the pulp machine with serious injuries. Although no one witnessed the accident, Andrus, who
was conscious immediately following the accident, told employees who came to his aid he had been
injured under the layboy table. There was no reason given for Andrus to be at the pulp machine or
under the layboy table. Paramedics transported Andrus by ambulance to a hospital, where he died
from his injuries on October 23. That day, G. A. West notified OSHA of Andrus’s death. The next
day, compliance officers Critopoulos and Smith arrived at ARP’s mill.
OSHA’s Inspection
On October 24, 2007, Critopoulos and Smith met with several representatives for G. A. West
and ARP, as well as the attorneys for the two companies, at the mill. Critopoulos interviewed
employees and videotaped the pulp machine in operation. On October 30, 2007, Critopoulos
returned to the mill and took additional photographs of the pulp machine. He did not notify G. A.
West of his return, and no G. A. West representative accompanied him. Critopoulos returned two
more times, on July 23 and 29, 2008 (the visit on the 29th occurred the night of the first day of the
hearing), taking more photographs and measurements. Critopoulos did not notify G. A. West either
of these times.
G. A. West claims it was prejudiced by Critopoulos’s failure to notify it of his visits to
ARP’s mill after his initial inspection because it was denied its walkaround rights.
Section 8(e) of the Act provides:

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Subject to regulations issued by the Secretary, a representative of the employer and
a representative authorized by his employees shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical
inspection of any workplace under subsection (a) for the purpose of aiding such
inspection. Where there is no authorized employee representative, the Secretary or
his authorized representative shall consult with a reasonable number of employees
concerning matters of health and safety in the workplace.

   G. A. West contends evidence gathered by Critopoulos during his October 30, 2007, and July

23, 2008, visits is “fruit of the poisonous tree” and should be excluded from the record. G. A. West
cites no case supporting its contention. The Commission has dismissed cases where OSHA failed
to give the employer any opportunity to accompany the compliance officer during the inspection,
but only when the employer was able to show its defense was prejudiced by OSHA’s failure.
Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977), Pullman Pwr. Prods., 8 BNA OSHC 1930
(No. 78-4989, 1980) aff’d 655 F.2d 41 (4th Cir. 1981).
In the present case, a number of G. A. West’s representatives, including its attorney,
accompanied Critopoulos on his initial visit. G. A. West knew OSHA was focusing on the
company’s installation of conduit for the pulp machine. The pulp machine is owned by ARP and
located at ARP’s mill, where G. A. West has no expectation of privacy.
G. A. West argues it was prejudiced by Critopoulos’s later visits since he and compliance
officer Smith (G. A. West’s brief, p. 7):
did not learn of Lett’s and M. Medley’s activities during their October 24 inspection,
they must have found out about those activities during one of Compliance Officer
Critopoulos’s other inspections or during his interviews when his inquiries exceeded
the scope of OSHA’s inspection which OSHA announced when G. A. West agreed
to the October 23 inspection.

   Employers are afforded walkaround rights “for the purpose of aiding such [physical]

inspection.” Walkaround rights do not include the right to accompany compliance officers during
employee interviews. Section 8(a)(2) of the Occupational Safety and Health Act (Act), 29 U.S.C.
§657(a)(2), allows the Secretary “upon presenting appropriate credentials to the owner,” to enter any
establishment where work is performed “and to question privately any . . . employee.” G. A. West
does not allege Critopoulos entered ARP’s mill without ARP’s permission. Critopoulos initially
afforded G. A. West walkaround rights, during which it became clear the inspection related to work

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on the pulp machine. Critopoulos’s later visits, in continuation of his inspection, did not prejudice
G. A. West’s defense. G. A. West’s request to exclude evidence from those later visits is denied.
Timeliness of the Citation
G. A. West contends the citation is not actionable because it does not identify the date when
the alleged violation occurred. Section 9(c) of the Act provides:
No citation may be issued under this section after the expiration of six months
following the occurrence of any violation.

   The Secretary’s original citation issued on February 21, 2008, alleged:
   Product Unit: The employer did not ensure that equipment such as, but not limited
   to, conveyors and the cutter Layboy were locked out before employees were allowed
   to work under the machine. The employees were exposed to struck by and crushing
   hazards.

   After G. A. West made timeliness of the citation an issue in its motion for summary

judgment, the Secretary moved to amend the citation on July 18, 2008, to allege:
Product Unit: Between October 1 and 6, 2007, the employer did not ensure that
equipment such as, but not limited to, conveyors and the cutter Layboy were locked
out before employees were allowed to work under the machine. The employees were
exposed to struck by and crushing hazards.

   Under Federal Rule of Civil Procedure 15, amendments are freely given where the

amendment adds further specificity to the charges but does not alter the conduct or occurrences at
issue. The amendment must not prejudice the employer. Dole v. Arco Chemical Co., 921 F. 2d 484
(3d Cir. 1998). The primary issue is whether G. A. West had adequate notice of the factual basis
underlying the citation.
G. A. West is neither surprised nor prejudiced by the amendment which was filed ten days
prior to the hearing. The company was aware the focus of the inspection was the time during which
it was installing the conduit for the pulp machine. G. A. West’s argument is rejected.

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The Citation
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).
G. A. West conceded at the hearing that it did not lock out the pulp machine and layboy
table, and that it had instructed Lett and Medley to perform the activities the Secretary alleges is
violative (Tr. 15-16). The remaining issues are whether § 1910.261(b)(1) applies to the cited
conditions and whether Lett and Medley were exposed to the alleged violative condition.
Item 1: Alleged Serious Violation of § 1910.261(b)(1)
Section 1910.261(b)(1) provides in pertinent part:
Before any maintenance, inspection, cleaning, adjusting, or servicing of equipment
(electrical, mechanical, or other) that requires entrance into or close contact with the
machinery or equipment, the main power disconnect switch or valve, or both,
controlling its source of power or flow or material, shall be locked out or blocked off
with padlock, blank flange, or similar device.

                  Does § 1910.261(b)(1) Apply to the Cited Conditions?
   Section 1910.261(b)(1) applies when an employee’s entrance into or close contact with

machinery results from “maintenance, inspection, cleaning, adjusting, or servicing” of the
machinery. The Secretary contends Lett and Medley were servicing the machinery.
Section 1910.261 does not define “servicing,” but the general lockout/tagout standard at
§ 1910.147(b) defines “servicing and/or maintenance” as (emphasis added):
Workplace activities such as constructing, installing, setting up, adjusting,
inspecting, modifying, and maintaining and/or servicing machines or equipment.1

   1
    Section 1910.147(a)(3)(ii) provides: “When other standards in this part [1910] require

the use of lockout or tagout, they shall be used and supplemented by the procedural and training
requirements of this section.” The definitions found in § 1910.147 apply to § 1910.261(b)(1).

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The moving layboy and conveyor belts are interconnected with and permanently attached
to the pulp machine. All are part of a single system. Lett and Medley were installing conduit for
the variable speed drive upgrade. This installation modified the existing pulp machine and layboy
table. Prior to the modification, the pulp machine and layboy table operated at a constant speed.
The modification allowed the operator to vary the speed at which the pulp machine operates (Tr. 22,
110-112). Modifying a machine is one of the workplace activities the standard defines as
“servicing.”
Lett and Medley were modifying the pulp machine system between October 1 and 6, 2007.
Their modification of the machine constituted “servicing” of the machine. Section 1910.261(b)(1)
applies to Lett and Medley’s activities.
Were Lett and Medley Exposed to a Hazardous Condition?
G. A. West did not lockout the pulp machine while Lett and Medley modified it (Tr. 270).
In order to be exposed to any hazardous condition created by G. A. West’s failure to lockout the
pulp machine, Lett and Medley’s work must have required them to enter the machine or come within
“close contact” with the machine. The Secretary contends the employees’ work activities brought
them into close contact with the moving layboy table and the conveyors under the pulp machine.
The standard nowhere defines “close contact.” The preamble to the lockout/ tagout standard
provides some guidance (54 Fed. Reg. 36647):
Performance of maintenance or servicing activities on a machine or equipment that
is in operation has the potential of exposing employees not only to contact with
moving machinery components at the point of operation, but also to contact with
other moving components, such as power transmission apparatus, and also increases
the risk of injury due to the position the employee must assume and the need to
remove, bypass or disable guards and other safety devices. In many cases, these
activities expose the employee to the hazard of being pulled into the operating
equipment when parts of the employee's body, clothing or the material or tools used
for cleaning or servicing become entrapped or entangled in the machine or
equipment mechanism. The use of extension tools or devices to permit the operator
to stay outside these danger areas, while of some benefit in reducing direct employee
exposure to the hazards of entanglement or entrapment, can in itself, result in injuries
to employees. This can occur, for example, when an employee is struck by the tools
or devices that inadvertently come in contact with moving machine components, and
are pulled from the employee's grasp.

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The preamble indicates machine servicing that brings an employee into “close contact” with
the machinery is any required activity causing an employee to be so near to a machine that his or
her body, clothing, or equipment or tools could be entrapped or entangled in the machine. Accurate
measurements of the distances between the moving parts of the system and the employees is crucial
to analyzing the situation.

    Critopoulos took various measurements when he first inspected the pulp machine area in

October 2007. He documented these measurements in a diagram (Exh. C-4). At some point before
the hearing, Dale Lett obtained a copy of the diagram. Lett took it upon himself to go to ARP’s mill
the day before the hearing and take his own measurements. Although still employed by G. A. West
at the time of the hearing, Lett no longer worked at the ARP mill (Tr. 162-163, 177-178). Lett’s
measurements differed from Critopoulos’s measurements, significantly in some cases (Tr. 157-158).
After listening to Lett’s testimony the first day of the hearing, Critopoulos returned to ARP’s mill
that night and re-measured the disputed distances. His measurements differed from his October
2007 measurements. The pulp machine was not operating that night, unlike when Critopoulos
initially took the measurements. He explained the discrepancy between his measurements taken in
October 2007 and those taken in July 2008 (Tr. 302): “Better measurements, machine not operating,
not being concerned with my personal safety, since the table and everything was shut down. It was
easier to get closer to it.”

    The biggest discrepancy is the distance from the floor to the conduit installed by Lett and

Medley. Critopoulos initially measured this distance as 18 inches (Tr. 118). Lett estimated the
distance to be 6 to 12 inches (Tr. 155-156, 160). Jerold Medley estimated the distance from the floor
to the conduit to be 14 to 18 inches (Tr. 254). The second day of the hearing, Critopoulos changed
his measurement to 36 inches. He explained the pulp mill operator accompanying him the night of
July 29 informed him Lett and Medley had installed the conduit above where Critopoulos had
originally measured. The operator “shined his flashlight and traced the conduit installed by G. A.
West as it looped and came out of the machine to the south side end. . . . And, after he shined his
flashlight, I realized he was correct. So, I measured from that distance to the floor, and it was 36
inches” (Tr. 304). This distance is significant because the Secretary alleges a gap of 3 feet could
allow an employee bending over or crouching down to fall under the conduit and into the area where

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the layboy table descended. G. A. West contends that if the gap is at most a foot and a half, an
employee could not inadvertently fall under the conduit.

   Neither Critopoulos nor Lett took photographs of the measurements as he made them, or had

another person present during the measuring corroborate the measurements. The court expressed
surprise at the hearing that an issue as crucial as the distances between the employees and the
moving parts of the pulp machine system would receive such careless treatment by both parties. No
attempt was made by the parties to coordinate a visit to the mill so that representatives of each party
could together measure the distances at issue. At the end of the hearing, the court suggested this
course of action. On August 6, 2008, the court received a letter from G. A. West’s counsel,
declining to make additional measurements.
Where the measurements of Critopoulos conflict with those of Lett, Lett’s measurements will
be accepted as accurate. Critopoulos was a credible witness, but he was hampered by the
circumstances of this case. When he first measured the distances around the pulp machine system,
the system was operating so he could not get close enough to the machine to make accurate
measurements. He never observed Lett and Medley actually installing the conduit; he only heard
about it after the installation was completed. While Lett knew exactly where he and Medley had
stood when installing the conduit, Critopoulos had to guess. Critopoulos speculated as to how he
thought the employees performed the installation, and took measurements based on that speculation.
In one instance, Critopoulos failed to measure the distance from where the employees were working
on the conduit to the layboy table, which Lett measured as 24 inches (Tr. 157-158). He mistakenly
measured from a point on the conduit where the employees did not work to the end point of the
layboy, where a piece protruded so the distance was only 10 inches (Tr. 313). With regard to the
height of the conduit from the floor, Critopoulos’s measurement of 36 inches is rejected. Jerold
Medley, who supervised the installation of the conduit, and Lett, who actually installed it, both
stated the conduit was no higher than 18 inches. They are credited with knowing better the location
of a conduit they worked on than an unnamed ARP employee accompanying Critopoulos nine
months after the installation.

   Michael Medley testified the closest he came to moving machinery while installing the

conduit was “close to 3 feet, probably” (Tr. 278). He estimated the closest conveyor belt was

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approximately 4 feet from where he was standing (Tr. 293). Lett stated he never came closer than
24 inches to any moving part of the pulp machine system (Tr. 152). When asked if he or Medley
could have fallen under the layboy, Lett responded there was no way possible to do that because,
“either way you fell, you’re going to fall up against the conduit rack and there’s no way you could
have because the height of that conduit come off the floor approximately about 6 to 12 inches” (Tr.
155). A falling employee could not come into contact with a conveyor belt because, “you’ve got
a guard over here that protected that conveyor” (Tr. 156).
The Secretary has the burden of proving the employees were in “close contact” with the
moving machinery. Such proof requires reliable measurements, taken where the employees actually
worked. No weight is given to speculation and guesswork. There is no credible evidence either
employee ever came closer than 2 feet to the machinery. Given the presence of the dike, the height
of the conduit rack, and the configuration of the moving parts of the system, the Secretary has not
established installation of the conduit required Lett and Medley to come into close contact with
moving machinery. Item 1 is vacated.
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:
Item 1 of the citation, alleging a serious violation of § 1910.261(b)(1), is vacated and no
penalty is assessed.

                                         /s/
                                         KEN S. WELSCH
                                         Judge

Date: March 31, 2009

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