Westvaco Corporation
Printer-slotter lockout violation affirmed
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Plain-English summary
Westvaco employees adjusted the cutting and slotting heads of a paperboard printer-slotter between customer orders without locking out the machine. The Commission held that the adjustments were “setting up” performed before normal production operations, so they did not qualify for the exception for minor servicing during normal production. The low-energy jog function needed for alignment was not the cited hazard; the risk was unexpected energization of the entire machine while the helper's hands were near knives. Westvaco also failed to prove infeasibility because a lock and hasp at the separated slotter gear was a feasible way to prevent the drive train from engaging. The Commission affirmed the serious violation and assessed a $560 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.147(c)(1) and 1910.212(a)(1)
- Outcome: The serious lockout/tagout violation was affirmed, and a $560 penalty was assessed for the reviewed item.
- Key point: Machine adjustments made to prepare for the next production run are setting-up activities, not servicing performed during normal production operations.
Full text (OSHRC public release)
/m UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre *
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 6oc5050
Frs (202) 6064050
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 90-1341
..
’ WESTVACO CORPORATION, ..
..
Respondent. .. .
..
DECISION
BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.
BY THE COMMISSION:
The Occupational Safety and Health Administration (“OSHA”) issued to Westvaco
Corporation (“Westvaco ”) a citation alleging a serious violation of the lockout/tagout
standard at 29 C.F.R. 5 1910.147(c)(l).* In this citation, OSHA charged that Westvaco
failed to lockout2 the slotter section of a printer/slotter machine to protect its employee
$ection 1910.147(c)(1) provided at the time. of the inspection and the issuance of the citation as follows:
0 1910.147 The control of hazardous energy (lockout,/tagout).
.. .
iF eneraf--(l) Energy control program. The employer shall establish a program consisting
C
of an energy control procedure and employee training to ensure that before any employee
performs any servicing or maintenance on a machine or equipment where the unexpected
energizing, start up or release of stored energy could occur and cause injury, the machine or
equipment shall be isolated, and rendered inoperative . . . .
This standard was amended about six months after the citation was issued, see 55 Fed. Reg. 38,68586 (1990),
but Westvaco does not claim that any of those changes affect this case.
%e term “lockout” is defined at 29 C.F.R. 8 1910.147(b) as:
The placement of a lockout device on an energy isolating device, in accordance with an
established procedure, ensuring that the energy isolating device and the equipment being
controlled cannot be operated until the lockout device is removed.
. (continued...)
2
from the unexpected energizing of the e&e machineo3 At the time of the inspection, the
employee, whose job title is “the helper,” was making adjustments to the slotter section
between production runs. The Secretary does not dispute that the low level of energy that
the helper uses in making these adjustments does not pose a hazard. Westvaco argues that
the standard does not apply because the helper’s adjustments come within the specific
exception to the lockout/tagout standard found at the end of 29 C.F.R. 8 1910.147(a)(2)(ii).
Review Commission Administrative Law Judge Edwin G. Salyers concluded that
Westiaco did not prove that it comes under the exception. He affirmed the citation item4
and characterized it as serious. He assessed a penalty of $560, as OSHA had proposed.
The issues before the Commission are: (1) whether the judge erred in concluding that
2(...continued)
The definition of “lockout device” in that same section provided at the time of the inspection and citation as
follows:
A device that utilizes a positive means such as a lock, either key or combination type, to hold
an energy isolating device in the safe position and prevent the energizing of a machine or
equipment.
Although it does not affect this case, that definition was amended in 55 Fed. Reg. 38,685 (1990).
%he record in this case concerns only lockout as a means of controlling hazardous energy. However, as its
name implies, the lockout/tagout standard permits employers to control hazardous energy by using a tagout
system in certain circumstances. Under 29 C.F.R. 5 1910.147(c)(2)(‘) 1 , an employer shall use a tagout system
“[i]f an energy isolating device is not capable of being locked out.” If an energy isolating device is capable
of being locked out, the employer must use lockout “unless the employer can demonstrate that the utilization
of a tagout system will provide full employee protection as set forth in paragraph (c)(3) of this section.” 29 ’
C.F.R. 0 1910.147(c)(2)(ii). See 29 C.F.R. 8 1910.147(c)(3)(i) and (ii).
?he judge noted that, in response to challenges to the lockout/tagout standard filed by labor and industry,
the D.C. Circuit remanded the case to OSHA to further consider certain aspects of the standard’s
promulgation. International union, United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW v. OSHA, 938 E2d 1310 (D.C. Cir. 1991). The judge correctly stated that the court decision
has no effect on the outcome of the present case because, in its subsequent order on September 16, 1991, the
DC. Circuit refused to stay application of the standard during the remand period.
Since the judge’s decision was issued, the Secretary published his “Supplemental Statement of Reasons” in
response to the court’s remand order. 58 Fed. Reg. 16,612.23 (March 30,1992). On May 27,1993, an industry
party filed a motion with the D.C. Circuit seeking vacation of the standard or suspension of enforcement.
National Association of Manufacturers v. Reich, Docket Nos. 89.1559,89-1657, & 904553.23 BNA OSHR 4-5
(June 2, 1993). On June 17, 1993, the Secretary filed a response with the court in which he defended his
rulemaking and asked the court to dis&ss the motion. 23 BNA OSHR 86-67 (June 23, 1993).
3
Westvaco did not establish that the helper’s adjustments fall under the exception in the
standard; (2) whether Westvaco proved that compliance was infeasible; and (3) whether the
judge properly characterized the violation as serious.
I. Background
A. Facts
Westvaco manufactures corrugated paperboard containers at its plant in Eaton, Ohio.
The printer/slotter machine prints on, scores, and slots sheets of corrugated paperboard that
can then be folded into trays for holding cans. Two Westvaco employees work at the
machine, the operator and the helper. During a production run, the helper feeds sheets of
corrugated paperboard into the machine. The machine moves the sheets to the “printing
section,” where graphics of one color are printed at the first print station, and, if required,
graphics of another color are printed at the second station. Then, at the “slotter section”
sheets move through a series of upper and lower shaft heads fitted with corresponding
knives and slots that cut them into smaller sheets, inscribe scoring lines, and cut slots on the
sides of the sheets. After the sheets have moved through the machine, the operator inspects
the finished product at the stacking area.
Because each order for cartons from Westvaco’s customers is unique in terms of
printed matter and size, adjustments to both the printer section and the slotter section must
be made for each order. The typical order ranges from 10,000 to 100,000 trays. The
machine completes an order for 10,000 trays in approximately two hours. Because’ the
average number of orders run per day is three or four, and adjustments to the slotter and
printer sections are necessary before each order, adjustments are made three or four times
a day. The adjustments, which take between 15 and 45 minutes to complete, are made by
the operator and the helper between production runs. The operator adjusts the printer
section, while the helper adjusts the slotter section.
Before the helper adjusts the slotter section, he activates the twist lock stop at the
feed (opposite) end of the machine, presses one of the two mushroom stop buttons located
at each side of the slotting section, and then raises the “layboy arms” used in transporting
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the corrugated sheets? The helper then adjusts the shaft heads in the slotting section by
positioning the six knife heads on each upper shaft, and their corresponding slotted heads
on the lower shaft. The helper uses a T-wrench, or Allen wrench, to work in between the
shafts and adjust the heads about one-eighth to three-sixteenths of an inch to meet customer
specifications. Each time an adjustment to a head is made, the helper must visually
determine whether the slot and knife are lined up properly by activating the jog control
button, which causes the heads to move at a slow speed.
In order to provide an opening for access to the area where he will change the ink
and printing plates, the operator separates the machine by sliding the printer section, which
moves on rails, away from the slotter section! When the machine is separated, the slotter
section is disconnected from the printer, and the flow of energy to both sections is cut off
except for a small amount of power that allows the helper to jog the heads at a slow speed
at the slotter section and permits the ink at the printing section to continually circulate to
keep it from drying out.
B. Main Contentions of the Parties
According to the Secretary, Westvaco violated section 1910.147(c) because the helper
was making adjustments to the slotter section of the printer/slotter machine, where
unexpected energizing of the entire machine could occur, without the protection of an
energy control program that would isolate the machine and thereby render it inoperative.
More specifically, the Secretary bases the alleged violation on Westvaco’s failure to lockout
the slotting section while the helper made his adjustments.
. ‘This is the procedure that the helper followed at the time of the OSHA compliance officer’s complaint
investigation; it represents the cited condition. After that investigation, a hinged barrier guard was installed
that covers the slotter section. When the helper raises this barrier guard to reach the area requiring
adjustments, the metal on the guard is detected by a sensing device that activates another stop control, which .
is on the same circuit as the stop buttons. According to the Secretary’s expert witness, William Murphy, whose
qualifications are discussed later, see infra note 15, this guard is not “interlocked” because there is no electrical
device that actually locks the guard in place.
kter the compliance offker’s investigation, Westvaco installed a key-operated switch at the location where
the machine separates. After separating the machine, the operator maintains exclusive control of the key until
the machine is once again together.
5
Westvaco claims that it was not required to provide an energy control program to
protect the helper because it is covered by the exception to the requirements of the
lockout/tagout standard at the end of 29 C.F.R. 6 1910.147(a)(2)(ii), which provid.es:
(ii) Normal production operations are not covered by this standard . . . .
Servicing and/or maintenance which takes place during normal production
operations is covered by this standard 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 . . . where work is actually performed upon the material
being processed . . . or where an associated danger zone exists during a
machine operating cycle.
NOTE: Ekception to paragraph (a)(2)(ii):
Minor tool changes and adjustments, and other minor servicing activities,
which take place during nonnal production operations,are not covered by this
standard if they are routine, repetitive, and integral to the use of the
equipment for production, provided that the work is performed using
alternative measures which provide effective protection (See subpart 0
[“Machinery and Machine Guarding”] of this part).
(Emphasis added).
II. Did WestvacoProve that the Helper’s Adjustments Fall Withinthe Exception?
The party claiming the benefit of an exception bears the burden of proving that it
comes within that exception. E.g., Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993 CCH
OSHD li 30,059, p. 41,329 (No. 89-2883, 1993) ( consolidated); Dover Elevator Co., 15 BNA
OSHC 1378, 1381, 1991 CCH OSHD lI 29,524, p. 39,849 (No. 88-2642, 1991).
A. U%atthe Ekception Requires
According to the Secretary, “the lockout/tagout standard excepts from coverage
certain types of minor servicing during nonnalproduction operationsso long as the employee
is adequately protected from the hazard by effective alternativemeans.” Under the language
of the exception, the types of minor servicing excepted are “routine, repetitive, and integral
to the use of the equipment for production.” These characteristics are not in dispute in this
case.
Westvaco does not agree with the Secretary’s reading of the exception’s requirements
quoted above. Its interpretation would substantially reduce what must be proven to come
6 *
under the exception. It argues that “there are two exceptions to the lockout requirements
that govern this case,” citing 53 Fed. Reg. 15,498 (1988)(preamble .to proposed rule)’ and
54 Fed. Reg. 36,661.62 (1989)(preamble to final rule).8 However, there is nothing in the
record to support this claim. We have reviewed the referenced pages of the preambles to
the proposed rule and final rule and conclude that the language Westvaco relies on does not
describe a separate exception, but rather different aspects of the rationale for what became
a single exception at the end of section 1910.147(a)(2)@). Westvaco also claims that,
. according to its reading of the preamble at 55 Fed. Reg. 38,679, amending 54 Fed. Reg.
36,662, servicing and maintenance activities are divided into two categories, which Westvaco
describes as:
(1) those that must be performed with the machine locked out . . . and (2)
those minor servicing activities that can be performed when the machine is not
‘The preamble to the proposed rule, 53 Fed. Reg. 15,498 (1988), reads as follows:
The Agency recognizes that there are certain servicing operations which, by their very nature,
must take place without deenergization, such as the testing of energized equipment or
processes. Additionally, certain normal production operations, which are not intended for
coverage by this standard, such as repetitive minor adjustments, can sometimes safely be done
wi[th]out the machine, equipment or process being deenergized and locked out and/or tagged
out, with the use of specific control devices, work practices, employee training and other
measures.
The proposed rule designated as 29 C.F.R. 5 1910.147(a)(2)(iii)(B) provided:
Servicing . . . which takes place during normal production operations, such as . . . making
minor adjustments . . . are not covered by the standard, if it is necessary to perform such
servicing . . . with the machine . . . energized, and if such servicing . . . is performed using
alternative measures which the employer can demonstrate will provide effective protection.
81n the preamble to the final standard, 54 Fed. Reg. 36,661 (1989), OSHA recognized that “the proposed
provision was not clear enough” concerning the types of operations meeting, or not meeting, the exception
and the criteria to be applied in each situation. The preamble clarified that:
Minor tool adjustments and changes or other minor servicing activities performed during
normal production operations, are not covered by lockout or tagout requirements if the
activities are routine, repetitive and integral to the production operation, provided that there
is an alternative means being used . . . which will provide effective protection to employees.
54 Fed. Reg. 66661-62. OSHA also noted the problems that arose from the proposed rule’s requirement that
the employer demonstrate that it was necessary to perform the operation with the machine energized. After
recognizing that “some servicing operations must be performed with the power on,” OSHA did not deem it
necessary in the final exception to require that demonstration by the employer. 54 Fed. Reg. 36,661.
locked out as long as the employee doing the work is protected by either
control switches under his/her exclusive control, local disconnects, interlocked
barrier guards or other alternative protective measures.
. Westvaco’s category (1) consists of the requirement in the proposed exception that was
deemed unnecessary in the final exception. See supra notes 7 and 8. While Westvaco’s
category (2) purports to present the exception at issue, in that it refers to the requirements .
that the servicing be “minor” and that effective alternative protection be used, this assertion
ignores the remaining element of the exception, the requirement that the servicing must be
done “during normal production operations.“g Westvaco also contends that “[tlhe real
question in this case is whether Westvaco utilizes an alternative procedure to lockout that
prevents unintended activation of the machine when the helper is in a machine danger
zone.” We agree with Westvaco that a showing that effective alternative protection is
provided is necessary to meet the exception. However, it is but one of three elements that
must be proven to satisfy the exception.
Having found no support for Westvaco’s view of the exception, we must agree with
the Secretary’s reading of the exception. Therefore, we conclude that, in order to show that
the helper’s adjustments come within the exception, Westvaco has the burden of proving that
the helper’s adjustments are (1) minor, (2) take place during normal production operations,
and that (3) effective alternative protection is provided.
B. Did WestvacoProve that the Adjustments Were Made “During Nomal
Production Operations”?
To determine whether Westvaco has met its burden of proving that the helper’s
adjustments come within the exception, we first consider whether it established that the
helper’s adjustments to the slotter section “take place during normal production operations.”
‘The sentence in the preamble to the amendments to the final rule at 55 Fed. Reg. 38,679, upon which
Westvaco particularly relies for its category (2), specifically recognizes this requirement: “Safeguarding for
minor servicing during nomalproduction operationsmay include, for example, interlocked barrier guards, local
disconnects or control switches which are under the exclusive control of the employee performing the minor
servicing . . . .” (emphasis added).
8
Judge’s Decision
In his decision, the judge noted that “normal production operations” is defined in 29
C.F.R. 5 1910.147(b) as “[t]he utilization of a machine or equipment to perform its intended
production function.” Finding this definition rather vague, he focused on the definition of
“setting up” in 29 C.F.R. 5 1910.147(b), which reads: “[alny work performed to prepare a
machine or equipment to perform its normal production operation.” The judge noted that
“setting up” is listed as an activity under the definition of “servicing and/or maintenance”
in section 1910.147(b),10 and that servicing and maintenance activities are expressly covered
by the lockout standard, under 29 C.F.R. 8 1910.147(a)(2)(i). He stated that, based on the
plain meaning of the exception and these definitions, “work performed on the machine while
the machine is not being operated to actually produce its product is either servicing or
maintenance.” The judge further stated that
work that is performed before the normal production operation in order to
prepare the machine for production is a specific service activity, called setting
uP* Setting up does not occur during normal production operations.
Therefore, setting up cannot, by definition, fall within the exception to
8 1910.147(a)(2)(ii).
(Emphases added).
He concluded that the helper’s adjustments come under the definition of “setting up”
because they “were made to customize each individual order; the adjustments prepared, or
set up, the machine for the next order, or production operation.” He relied on the
preamble at 55 Fed. Reg. 38,680 (1990), amending the final rule’s preamble at 54 Fed. Reg.
I
36,667 (1989) to read:
Anything that is done to prepare a machine or equipment to perform its
normal production operation, such as changing a machine part (e.g., changing
‘O”Seticing and/or maintenance” is defined in section 1910.147(b) as:
Workplace activities such as constructing, installing, setting up, adjusting, inspecting,
modifying, and maintaining and/or setvicing machines or equipment. These activities include
lubrication, cleaning or unjamming of machines or equipment and making adjustments or tool
changes, where the employee may be exposed to the unexpected energization or startup of the
equipment or release of hazardous energy.
(First emphasis added).
9
the blade of a power saw), is not considered utilization of a machine or
equipment and is classified as servicing or maintenance rather than normal
production operations.
The judge stated that “[hlaving determined that the helper’s adjustments fall within the
definition of ‘setting up,’ a service activity that is not a part of normal production
operation[s], it is concluded that the helper’s adjustments are not covered by the
exception . . . .”
Westvaco’sArguments
Westvaco contends that the judge erred in interpreting the standard when he held
that the exception could not apply to activity that he characterized as setting up, and that
the exception applies only to servicing that is performed while the machine is actually
making a product.” It maintains that “[a]ny type of servicing, including set up, could fall
within” the exception as long as the exception’s other criteria are met. It argues that,
contrary to the judge’s narrow interpretation, the language in the exception “focuses on the
nature of the work being performed, not on the moment in time when the work occurs.”
Westvaco asserts that the helper’s adjustments affect the size of the product and “are made
when production moves from one customer order to another.” It likens the helper’s
adjustments to “chang[ing] the speed of the machine by adjusting belt drives or other
components which are normally guarded” or “adjust[ing] the movement of a long-bed milling
machine worktable,” which are recognized in the amended preamble as meeting the
exception where effective alternative safeguarding is provided. 55 Fed. Reg. 38,680 (1990),
amending 54 Fed. Reg. 36,666 (1989). Westvaco argues that machine speed changes and
worktable adjustments are activities that could be performed either between orders, like the
helper’s adjustments, or while a particular order is running.
. Thomas Seagraves, Westvaco’s production manager, testified that the production cycle
consists of the time it takes to make the adjustments to the slotter and printer sections
llWestvaco does not discuss separately each of the three elements of the exception at issue (whether the
adjustments are minor, made during normal production operations, and whether effective alternative
protection was provided). Rather it presents most of its contentions by combining its discussion of all three
factors in the exception at issue in this case, and sometimes including factors not in dispute (whether the
adjustments are routine, repetitive, and integral to the use of the machine).
10
together with the time to actually process the order through the press. Westvaco asserts,
as Seagraves testified, that the inclusion of the adjustments in the normal production
operations is underscored by the fact that the adjustments are performed by production
employees, not maintenance personnel.
Dkcussion
The judge found that the helper’s adjustments of the shaft heads to accommodate
each customer’s specifications in anticipation of the next production run is “setting up,” or,
as defined in the standard, “work performed to prepare a machine or equipment to perform
its normal production operation.” (emphasis added). We agree with this determination. We
reject Westvaco’s claim that this element of the exception focuses only on the nature of the
work being performed and not on the moment in time when the work occurs. While the
nature of the work is important to consider, in this case the fact that the work is done pior
to production runs is critical in determining if the adjustments are made during normal
production operations.
The plain meaning of the word “prepare” as it is used to define “setting up” in
section 1910.147(b) includes the idea of activity before some event. One dictionary defines
“prepare” as “to make ready beforehand for some purpose.” Webster3 l%ird New
International Dictionary 1790 (1986 unabridged). Under this definition, the helper’s
adjustments to the shaft heads are clearly done to “prepare” the printer/slotter machine for
normal production operations.
Furthermore, adjustments made toprepare for normal production operations cannot,
at the same point in time, be adjustments that are made “duting normal production
operations.” (emphasis added). Work performed “during” is defined as work “at some point
in the course of.” Id. at 703. Such work occurs at a different time than adjustments made
“beforehand,” or while setting up. Based on this definitional distinction, we reject
Westvaco’s argument that the judge erred in finding that the exception cannot apply to
setting up.12 Therefore, we conclude that because the helper’s adjustments constituted
‘?he judge further suggested, in reliance on the quoted portion of the preamble at 55 Fed. Reg. 38,680, that
setting up automatically falls outside the exception because it is “servicing,” a type of activity to which the
(continued...)
“setting up,” they cannot, based on the standard’s definition of that term, be considered to
take place “during normal production operations.“‘ 3 See, e.g., Globe Industies, Inc., 10
BNA OSHC 1596, 1598, 1982 CCH OSHD fl 26,048, p. 32,718 (No. 77-4313, 1982)
(Commission should give reasonable, common-sense interpretations to standards), and cases
cited therein. In light of this disposition, we need not reach Westvaco’s argument concerning
the judge’s further finding that the exception applies only to work performed on the machine
while the machine is actually making its product.
To prove that its case comes within the exception, the employer must show that the
adjustments are minor and made during normal production operations, and that effective
alternative protection is provided. In light of our determination above that Westvaco failed
to prove that the helper’s adjustments were made during normal production operations, we
conclude that Westvaco has not proven that its case falls within the exception at the end of
section 1910.147(a)(2)(ii). Th ere fore, we need not reach the other factors in dispute,
whether the adjustments are “minor” and whether they are made “using alternative
measures which provide effective protection.”
Based on the above, we conclude that Westvaco has failed to prove that the helper’s
adjustments fall within the exception at the end of section 1910.147(a)(2)(ii). Accordingly,
we find that the cited standard, section 1910.147(c)(l) applies, and that, as Westvaco
acknowledges, its terms were not met because the slotter section was not locked out.
III. Did WestvacoProve the InfeasibilityDefense?
To prove the affirmative defense of infeasibility, the employer must show that “(1)
literal compliance with the terms of the cited standard was infeasible under the existing *
12(...continued)
standard applies. We agree with Westvaco that this reasoning is inappropriate. While it is true that the
lockout/tagout standard is generally applicable to servicing and maintenance, not to normal production
operations, what is at issue here is an exception to the standard’s general applicability provisions. The
exception provision at issue here recognizes that there are certain types of servicing that must be done during
normal production operations, and, for those activities, the standard does not apply if the other requirements
of the exception are established.
13We note that our ruling here is limited to the definitional distinction that prevents an activity that qualifies
as “setting up” from also being an activity that takes place “during normal production operations.” Other
types of “servicing and/or maintenance” work listed in that term’s definition, see sup’s note 10, such as
“unjamming of machines,” could, depending on their respective definitions, be done during normal production
operations.
12
circumstances and (2) an alternative protective measure was used or there was no feasible
alternative measure.“14 Mosser Constr. Co., 15 BNA OSHC 1408, 1416, 1992 CCH OSHD
ll 29,546, p. 39,907 (No. 89-1027, 1991), citingSeibel Modem Mfg. & Wetiing Cop, 15 BNA
OSHC 1218, 1226, 1228, 1991 CCH OSHD l! 29,442, pp. 39,682 & 39,685 (No. 88-821,
1991).
Westvaco generally contends that compliance would not be feasible because energy
was required to jog the heads in the slotter section and to keep the ink circulating in the
printer section. However, as discussed above, the Secretary does not contend that the
energy required for the jog mode posed a hazard to the helper, or that the energy required
for ink circulation posed a hazard to the operator. Rather, the Secretary asserts that the
energy against which the helper needs protection is the energization of the entire machine.
Westvaco also argues that it would be infeasible to implement the abatement
measures suggested by the Secretary’s witnesses compliance officer Jack Peterson, who
conducted the complaint investigation, and expert William Murphy, the Area Director for
the OSHA Cincinnati Office, who conducted the discovery inspection.
William Murphy, who was qualified by the judge as an expert in the lockout/tagout
field,15 testified that Westvaco could abate the violative condition by installing a hasp and
14An affirmative defense ordinarily must be initially pleaded by the employer in its answer, according to Rule
36(b) of the Commission’s Rules of Procedure, 29 C.F.R. 5 2200.36(b). Westvaco did not specifically raise
the particular affirmative defense of infeasibility in its answer. However, the Secretary does not take issue with
its inclusion as an issue in the direction for review. Because the issue has been briefed by the parties, we will
consider it. See generaZ/yBill C’. Carroll Co., 7 BNA OSHC 1806,1810,1979 CCH OSHD ll23,940, pp. 29,032. *
33 (No. 76.2748,1979) (Secretary on notice about unpreventable employee misconduct contention). See Rule
107 of the Commission’s Rules of Procedure, 29 C.F.R. 5 2200.107.
15Murphy had been Area Director of the OSHA Cincinnati Office since 1979. He testified as follows
concerning his background and experience in lockout. He had worked as an OSHA compliance officer from
1973 until 1977, when he became a supervisor of compliance officers. Prior to his OSHA jobs, he worked on
machines that performed the same functions as the printer/slotter machine at issue here. At OSHA Murphy
developed a sheet on lockout policy under section S(a)(l) of the Act, 29 USC. 8 654, the general duty clause,
that was used by his own as well as other OSHA offices within OSHA’s Region V. He also conducted
numerous training sessions and seminars on lockout for such organizations as the National Safety Council and
the General Motors UAW Training Center. He also had been an instructor in machine guarding, including
lockout, at OSHA’s training institute in Illinois. When the draft lockout/tagout standard was issued, he
provided comments on it for his own office, which were submitted as the Region’s comments, In those
comments, he focused on the exception. at issue here, when minor adjustments take place during normal
(continued...)
13
small lock on the slotter gear at the point where the machine separates. He stated that, with
the hasp installed, the machine could not be accidentally closed up once the separation had
been accomplished.
Westvaco’s production manager Seagraves acknowledged in his testimony that
installation of the hasp and lock would “prevent the drive train from activating itself.”
However, he expressed the view that “clos[ing] one section of the press onto the other with
this bul@ item in between” could possibly break the gears. When asked on cross-
examination about his testimony that the hasp and lock would wreck the gears, Seagraves
.responded that “we’ve had discussions about it. We have not gone to the extent of putting
that particular type of guard on the machine.”
The judge found that Murphy’s suggestion was “both simple and expedient.” He
determined that there was “nothing in the record that would preclude” use of the small lock
and hasp on the slotter gear to protect the helper.
Although Seagraves speculated that the gears could be wrecked if the machine were
closed with the hasp and lock between the sections, this would seem to occur only if the
sections were accidentally pushed back together. Without further explanation, Seagraves’
speculation does not rebut Murphy’s testimony that the hasp and lock would be a feasible
means to abate in compliance with the standard. l6 We therefore agree with the judge and
conclude that, based on the testimony above, Westvaco has not proven by a preponderance
of the evidence that Murphy’s suggested abatement measure would be infeasible.
ls(...continued)
production operations.
After the Secretary moved at the hearing to have Murphy qualified as an expert, Westvaco’scounsel conducted
a short void dire, during which Murphy stated that the lockout cases in which he had been previously qualified
as an expert were brought under section S(a)(l) because they preceded the issuance of the standard at section
1910.147. Westvaco did not object to having Murphy certified as a lockout expert.
%s noted above, following the compliance officer’s investigation, the basis for the citation item at issue here,
Westvaco installed a key-operated switch at the separation point of the printer/slotter machine. See supra note
- Murphy observed that switch during his discovery inspection, noting that the operator kept the key after
separatingthe machine. He opined that, although it would not technically satisfy the standard, Westvaco could
providethe helper with effective alternative protection from the hazard of unexpected energization under these
changed conditions by entrusting the key to the exclusive control of the helper, who generally takes moretime
to make his adjustments than the operator.14 In addition to Murphy, the compliance officer offered testimony concerning asuggested means of abatement. However, because we find that Westvaco has not
established that Murphy’s suggestion was infeasible, we need not reach Westvaco’s argument
that the separate disconnect feature proposed by the compliance officer was infeasible. Nor
do we need to consider whether Westvaco established the second element of the defense,
that it provided an alternative protective measure.
Having concluded that Westvaco failed to prove that at least one of the suggested
means of abatement was infeasible, we determine that Westvaco has not proven the
affirmative defense. We therefore find that Westvaco violated section 1910.147(c)( 1).
IV. Was the ViolationProperlyCharacterizedas Serious?
The judge rejected Westvaco’s claim that, if a violation were found, it should be
characterized as de &zimis. He stated that such a characterization is proper only where
there is a negligible relationship to safety and health and abatement would be inappropriate.
The judge stated that the helper was left unprotected while making his adjustments to the
shaft heads, and his hands were in the immediate area of the slotting, scoring, and trim
knives. Finding that the helper faced the hazard of his hands being crushed or amputated,
the judge determined that the violation had more than a negligible relationship to safety; he
classified it as serious.
Westvaco argues that the judge erred in characterizing the violation as serious,
thereby rejecting its argument that the violation was de minimis.
A de minimis violation is one having no direct or immediate relationship to employee
safety, where “the hazard is so trifling that an abatement order would not significantly
promote the objectives of the Act.” Dover Elevator Co., 15 BNA OSHC at 1382, 1991 CCH
. OSHD at p. 39,850. Here the hazard is not a trifling one. The unexpected energization of
the machine could injure the helper, even causing amputation. Because an abatement order
would eliminate this hazard, we conclude that the violation is not de mioimk. We also .
conclude that the judge properly characterized the violation as serious under section 17(k)
of the Act, 29 U.S.C. 8 666(k), because there is a substantial probability that serious physical
harm could result if unexpected energization occurred.15 V. Order For the reasons stated above, we conclude that Westvaco committed a seriousviolation of the lockout/tagout standard at section 1910.147(c)(l). Having considered the
penalty factors in section 17(j) of the Act, 29 U.S.C. 0 666(j), we find the penalty of $560
proposed by OSHA and assessed by the judge to be appropriate. We therefore assess a
penalty of $560 for the violation of section 1910.147(c)( 1).
It is so ordered.Edwin G. Foulke, Jr. Chairman CommissionerDated: Septaber 14. 1993
UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre 1120 20th Street, N.W. - 9th Floor Washington, DC 20036-3419 FAX: COM (202) 60&5050 Fn (202) 606-5050
SECRETARY OF LABOR,
Complainant,
v. .. Docket No. 90-1341
WESTVACO CORP.,
.
.
Respondent.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
September 14.1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAINREVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.
FOR THE COMMISSION
September 14, 1993
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 90-1341
NOTICE IS &IVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Charles M. Chadd, Esq.
Pope, Ballard, Shepard & Fowle, LTD.
69 West Washington Street
Suite 3200
Chicago, IL 60602
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825
K STREET NVV.
4Tt-i FLOOR
WASH!NGTON DC. 20006- 12a6
F.4X.
COM (202) 63&4X3
FE 634 - 4308
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-1341
WESTVACO
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on April 3? 1992. The decision of the Judge
will become a final order of the Commission on May 4, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
April 23, P992 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: April 3, 1992
DOCKET NO. 90-1341
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of t%e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Charles M. Chadd, Es .
PO e Ballard Shepard ‘& Fowle, Ltd
69%est Washin ton Street
Chicago, IL 606 %2
Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an cf Health
Review Commissron
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00103241444:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404)347-4197 c0fvl(404)347-0113
FlS 257-4086 FTS 257-0113
..
SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC Docket No.: 90-1341
WESTVACO CORPORATION,
Respondent.
Appearances:
Christopher J. Camey, Esquire Charles M. Chadd, Esquire
Office of the Solicitor Pope, Ballard, Shepard & Fowle, Ltd.
U. S. Department of Labor Chicago, Illinois
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Edwin G. Salyers
DECISION AND ORDER
Westyaco Corporation (“Westvaco ”), .was issued a two-item citation on March 29,
1990, pursuant to an inspection conducted by the Occupational Safety and Health
Administration (“OSHA”). Westvaco contested the citation, and a hearing was held in the
matter on January 30, 1991. Prior to the hearing, the parties settled Item 2 of the citation,
which alleged a serious violation of 29 C.F.R. 8 1910.212(a)(l) (Tr.5). The settlement
agreement reached on this item will be incorporated into the order issued with this decision.
Left for consideration is Item 1, which alleges a serious violation of 29 C.F.R.
Q 1910.147(c)(l), for failure to establish a program consisting of an energy control procedure
and employee training to protect employees from the unexpected energizing, start up, or
release of stored energy of a machine. The cited standard is part of OSHA’s lockout/tagout
standard, 0 1910.147, which became effective on January 2, 1990. This appears to be a case
of first impression for interpretation of the new standard by the Commission?
Background
Westvaco manufactures corrugated shipping cartons at its Eaton, Ohio, facility
(Tr. 167). On February 14, 1990, OSHA compliance officer Jack Peterson conducted an
inspection of Westvaco’s plant pursuant to a formal employee complaint regarding excessive
noise at the facility. The complaint was later determined to be without merit (Tr. 28).
During the course of his inspection, Peterson asked Westvaco representatives if the
company had a lockout procedure (Tr. 31). Peterson reviewed a document presented to
him, entitled “Guidelines For Applicability and Use of L,ockout/Tagout Procedures” (Exh. C-
3). Peterson concluded that the document was not a lockout/tagout program, but rather an
instruction outlining the elements of such a program for a manufacturing plant (Tr. 32-33).
Peterson expanded the scope of his inspection to include Westvaco’s lockout program as it
was actually applied (Tr. 35-36).
The Westvaco plant’s production operations are divided into two sections. The first
section is the corrugator section, which produces solid sheets of multi-layer paper. The
second section is the converting operation (Tr. 167-168).
One of the machines used in the converting operation is a 35inch printer/slotter
machine (Exhs. C-4, R-2; Tr. 37, 169), which is the central focus of this case. The machine
comprises four sections: a feed table, two print stations, and a slotting/scoring section (Exh.
R-2). The machine converts corrugated
. paperboard into corrugated cartons and boxes,
according to customer specifications (Tr. 168). The machine prints graphics on the
corrugated paperboard and then feeds the printed, corrugated paperboard through a series -
of shafts that have slotting, scoring and trim knives (Tr. 171-172). Two employees, an
operator and a helper, operate the machine (Tr. 179-180).
’ The parties have called to the attention of this court InternationalUnion, UnitedAutomobile, Aerospace and
Agricultural Implement Workers of America v. OSHA, No. 894559 (D. C. Cir. July 12, 1991)[slip opinion],
wherein the lockout/tagout standard was remanded to OSHA for reconsideration of certain aspects of the
standard’s promulgation. In a subsequent order, dated September 16, 1991; however, the Circuit refused to
stay application of the lockout/tagout standard during the remand procedures. This case has no present effect
upon the outcome of the instant action.
. 2
The slotting/scoring section of the machine contains two sets of shafts. Each shaft
has a number of heads. The first set of shafts contains the heads that perform the cutting
and scoring operation. The second set of shafts contains the heads that perform the slotting
operation (Exhs. R-9, R-10; Tr. 200-201). At issue in this case is the method used by
Westvaco to adjust the position of the heads on the shafts.
Approximately every two hours, three or four times a shift, a customer order is
completed on the machine. Every order is unique; therefore, adjustments must be made for
each new order to the slotting, scoring and trim knives (Tr. 181). The adjustments take from
15 to 45 minutes to complete (Tr. 195). The adjustments are initiated when the last sheet
of an order runs through the machine (Tr. 181).
Peterson observed adjustments being made on the machine at the end of an order
(Tr. 37).. The employees removed and added cutting components and made other
adjustments to the slotting, scoring, and trim knives. The employees’ hands were in the
immediate area of the knives. The adjustments took between 15 and 30 minutes to
complete (Tr. 38-39).
The on/off switch for the machine is located at its in-feed section (printer section),
approximately twelve feet from the slotting/scoring section. The employee cannot see the
on/off switch while he is working at the slotting/scoring section (ES. C-8; Tr. 50-51). A push
button control circuit is located on either side of the slotting/scoring section (Exhs. C-4, C-5).
When the machine is ready for adjustment, the helper activates the stop button on
the control panel at the printer section. The helper then moves to the slotting/scoring
section, where he activates at least one of the red stop controls located at that section. He
proceeds to raise the conveyor transport arms to gain access to the slotting/scoring section
(Tr. 181, 184).
The helper must position six heads on each shaft. Each head has a matching head
on the shaft below, which also has to be relocated and properly positioned (Tr. 187). Power
is required each time an adjustment is made because the helper must visually verify that the
slot and knife are lined up properly (Tr. 202-203). The machine cannot be de-energized
because of the need for power to “jog” the heads to visually verify their positions. The
3
machine also needs power to allow the inking systems to function properly, continually
circulating the ink so it does not dry up within the system (Tr. 215).
While an order is being run, the operator is located at the machine’s stacking area,
20 to 30 feet away from the press (Tr. 180). When the customer order is complete, the
operator finishes his paperwork and goes to an area where the machine splits. He uses a
switch to open the machine. During an order change, the operator is responsible for
changing the inking system and the printing plates, and relocating the pull collars if necessary
(Tr. 188). The operator’s work at the split in the machine usually takes about a third of the
time required for the helper’s adjustments in the slotting/scoring section (Tr. 216). At the
time of Peterson’s inspection, the practice was not to split the machine during the initial
adjustments made to the slotter by the helper. Peterson observed the helper making
adjustments in the slotting system before the machine was split (Tr. 54,56). Subsequent to
the issuance of the citation, Westvaco installed a barrier cage guard. The guard was on the
same circuitry as the stop buttons (Tr. 129-130).
The LockoutlTagout Standard
29 C.F.R. 5 1910.147(c)( 1) provides:
The employer shall establish a program consisting of an energy control
procedure and employee training to ensure that before any employee
performs any servicing or maintenance on a machine or equipment when the
unexpected energizing, start up or release of stored energy could occur and
cause injury, the machine or equipment shall be isolated, and rendered
inoperative, in accordance with paragraph (c)(4) of this section.*
The Secretary contends that Westvaco was in serious violation of this standard. Westvaco
does not dispute that at the time of the inspection, the machine was not locked out while
the helper adjusted the machine’s shaft h.eads (Tr. 225).
2 This standard was amended slightly after Westvaco received the citation for the alleged violation. The new
standard reads: The employer shall establish a program consisting of energy control procedures, employee .
training, and periodic inspections to ensure that before any employee performs any servicing or maintenance
on a machine or equipment where the unexpected energizing, start up or release of stored energy could occur
and cause injury, the machine or equipment shall be isolated from the energy source, and rendered
inoperative.”
It must first be determined whether the cited standard applies to the conditions
existing at the time of the inspection. Astra Pharmaceutical Products, Inc., 9 BNA
OSHC 2126, 1981 CCH OSHD II 25,258 (No. 78-6247, 1979), afd sub nom., Astra
Pharmaceutical v. OSHRC, 681 F.2d 69 (1st Cir. 1982).
29 C.F.R. 0 1910.147(a)(Z) provides in pertinent part:
0i This standard applies to the control of energy during servicing and/or
maintenance of machines and equipment.
(ii) Normal production operations are not covered by this standard (See
subpart 0 of this Part). Servicing and/or maintenance which takes place
during normal production operations is covered by this standard 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 upon the material being processed
(point of operation) or where an associated danger zone exists
during a machine operating cycle.
Westvaco seeks refuge in an exception to the above-cited standard:
Note: Exception to paragraph (a’)(Z)@:
Minor tool changes and adjustments, and .other minor servicing activities,
which take place during normal production operations, are not covered by this
standard if they are routine, repetitive, and integral to the use of the
equipment for production, provided that the work is performed using
alternative measures which provide effective protection. (See Subpart 0 of
this Part).
In order to meet the requirements of this exception, Westvaco must show that (1) the
adjustments made to the shaft heads were minor, (2) the adjustments were made during
normal production operations, and (3) alternative measures were used to protect the helper
during the adjustments. Westvaco contends that all three of these requirements have been
met, while the Secretary contends that Westvaco met none of them.
The second element will be addressed first, because it is the easiest to resolve and
is thus the quickest way to show that the helper’s adjustments do not fall within the ambit
of the exception.
The exception mandates that the adjustments “take place during nomal production
operations. ” The standard defines normal production operations, at 8 1910.147(b), as: “The
utilization of a machine or equipment to perform its intended production function.” This
definition by itself is rather vague. Its limits come into better focus when reference is made
to the definition of “setting up,” which is not a production operation: “Any work performed
to prepare a machine or equipment to perform its normal production operation.” Setting
up is one of the activities included in the “servicing and/or maintenance” definition. The
activities listed in that definition are expressly covered by the lockout standard, as stated in
9 1910.147(a)(i).
The plain meaning of the exception, read in conjunction with the definitions, is that
work performed on the machine while the machine is. not being operated to actually produce
its product is either servicing or maintenance. Furthermore, work that is performed before
the normal production operation in order to prepare the machine for production is a specific
service activity, called setting up. Setting up does not occur during normal production
operations. Therefore, setting up cannot, by definition, fall within the exception to
8 1910.147(a)(2)(ii).
Applying the standard to the facts at issue, it is determined that the helper was setting
up when he made the adjustments to the shaft heads. The adjustments were made to
customize each individual order; the adjustments prepared, or set up, the machine for the
next order, or production operation.
Reference to the amended preamble of the lockout standard bolsters this
interpretation of the standard:
Anything that is done to prepare a machine or equipment to perform its
normal production operation, such as changing a machine part (e.g., changing
the blade of a power saw), is not considered utilization of a machine or
equipment and is classified as servicing or maintenance rather than normal
production operations.’
Federal Register 38,680 amending 54 Federal Register 36,667. Changing a saw blade is
analogous to adjusting heads to score and slot corrugated paperboard in a different
configuration.
Westvaco argues in its reply brief that, “[tlhis passage has no bearing on the minor
servicing exception. The words of the passage, as amended, particularly when read in
context, are referring to the distinction between ‘normal production operations’ and
‘servicing or maintenance.’ That distinction is not relevant to this case because the minor
seIvicing exception carves out a class of servicing activities that do not have to be performed
under full lockout requirements” (Westvaco’s Reply Brief, p. 4). It is unclear what Westvaco
means by this. The distinction between “normal production operations” and “servicing
and/or maintenance” is critical to the minor servicing exception. The exception expressly
does not apply if the minor servicing does not take place during normal production
operations.
Having determined that the helper’s adjustments fall within the definition of “setting
up,” a service activity that is not a part of normal production operation, it is concluded that
the helper’s adjustments are not covered by the exception to paragraph (a)(2)(i).
The other two elements of the exception as applied to this case will be briefly
addressed. The first element requires that the adjustments be “minor.” Westvaco and the
Secretary hold differing opinions as to what constitutes “minor.”
The Secretary contends that the adjustments made by the helper are not minor,
primarily because of the time factor. Adjustments take from 15 to 45 minutes. The
Secretary asserts that this is prima facie evidence that the adjustments are major.
Westvaco points out that nothing in the standard or its preamble mentions time as
a factor in the determination of what is “minor” (Tr. 79-83). The company focuses not on
the amount of time required to make the adjustments, but the actual activity involved in
making the adjustments. Each adjustment consists of loosening, moving, and tightening a
head. The adjustments are made by unskilled production personnel. Recourse to the
dictionary reveals that “minor” is “[llesser or smaller in amount, extent, or size.” American
Heritage Dictionary, 800 (2nd Ed. 1982). Although this definition is rather vague, it does
support Westvaco’s argument in that it omits any reference to time. It is not necessary,
however, to decide the issue of whether the adjustments are minor.
The third element requires that the company provide an alternative means of
protection to employees working on a machine that is not locked out. Westvaco had two
7
stop buttons on the front of the machine and one on the rear. All three buttons were on
the same circuitry. This system is not an energy isolating device as defined by 8 1910.147(b).
There was no redundancy in the system; if one button failed, all three would fail (Tr. l31-
134).3 Westvaco failed to provide adequate alternative protection to locking out.
.
Westvaco did not have a lockout program in place for the printer/slotter machine.
The adjustments made to the heads between production runs did not fall within the
.
exception to 5 1910.147(d)(2)(ii). Th ere fore, Westvaco was in violation of the standard.
The Violation Was Serious
Westvaco argues that even if it was in violation of the standard, the violation should
be classified as de minimis. “A violation is properly characterized as de minimis where it has
only a negligible relationship to safety and health and where it is thus inappropriate to
require that the violation be abated or to assess a penalty.” NationalRollingMills Company,
4 BNA OSHC 1719, 1720, 1976 CCH OSHD li 21,114 (No. 7987, 1976).
Westvaco’s violation of 6 1910.147(C)( 1) left the helper unprotected while making
adjustments to the shaft heads of the machine. The helper’s hands were in the immediate
area of the slotting, scoring, and trim knives (Tr. 38-39). The hazard to the employee was
possible crushing or amputation of his hands. The violation has more than a negligible
relationship to safety and will be classified as serious.
Methods of Abatement
The Secretary proposed two methods of abatement. Peterson recommended that
Westvaco lock out the machine at its slotter section, while still maintaining ink circulation
and “jog” energy (Tr. 71-73).
William Murphy, the Area Director for Cincinnati’s OSHIA office, suggested another
method of abatement. Murphy suggested that the printer and slotter section be separated
at the beginning of each set up. This court has found nothing in the record that would
preclude this arrangement. Westvaco could then install a small lock and clasp on the slotter
gear. The machine could still jog the heads of the slotter section while preventing an
’ This conclusion is based upon the testimony of Area Director William Murphy, who has had extensive
training and experience in the lockout/tagout field and was considered a credible witness.
8
inadvertent activation, since the slotter gear would be unable to fully engage with the printer
section (Tr. 142). Murphy’s suggestion for abatement is both simple and expedient. With
the printer and slotter sections separated, the helper would retain possession of the key
while he is working on the heads. Use of this method would render it physically impossible
for the helper to work in the danger area of the heads and activate the machine at the same
time (Tr. 144).
Penalty
Under section 17(j) of the Act, the Commission is required to find and give due
consideration to the size of the employer’s business, the gravity of the offense, the good faith
of the employer, and the history of previous violations in determining the appropriate
penalty.
Upon due consideration of the relevant factors, it is determined that a penalty of
$560.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LA\7v
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
Based upon the foregoing decision, it is hereby ORDERED that:
1a Item 1 of the citation is affirmed and a penalty of $560.00 is assessed, and
2. Item 2 of the citation is affirmed and a penalty of $350.00 is assessed, in
accordance with the partial settlement agreement.
.
EDWIN G. SALYE
Judge
/m UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre *
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 6oc5050
Frs (202) 6064050
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 90-1341
..
’ WESTVACO CORPORATION, ..
..
Respondent. .. .
..
DECISION
BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.
BY THE COMMISSION:
The Occupational Safety and Health Administration (“OSHA”) issued to Westvaco
Corporation (“Westvaco ”) a citation alleging a serious violation of the lockout/tagout
standard at 29 C.F.R. 5 1910.147(c)(l).* In this citation, OSHA charged that Westvaco
failed to lockout2 the slotter section of a printer/slotter machine to protect its employee
%ection 1910.147(c)(1) provided at the time. of the inspection and the issuance of the citation as follows:
0 1910.147 The control of hazardous energy (lockout,/tagout).
.. .
iF eneraf--(l) Energy control program. The employer shall establish a program consisting
C
of an energy control procedure and employee training to ensure that before any employee
performs any servicing or maintenance on a machine or equipment where the unexpected
energizing, start up or release of stored energy could occur and cause injury, the machine or
equipment shall be isolated, and rendered inoperative . . . .
This standard was amended about six months after the citation was issued, see 55 Fed. Reg. 38,68586 (1990),
but Westvaco does not claim that any of those changes affect this case.
%e term “lockout” is defined at 29 C.F.R. 8 1910.147(b) as:
The placement of a lockout device on an energy isolating device, in accordance with an
established procedure, ensuring that the energy isolating device and the equipment being
controlled cannot be operated until the lockout device is removed.
. (continued...)
2
from the unexpected energizing of the e&e machineo3 At the time of the inspection, the
employee, whose job title is “the helper,” was making adjustments to the slotter section
between production runs. The Secretary does not dispute that the low level of energy that
the helper uses in making these adjustments does not pose a hazard. Westvaco argues that
the standard does not apply because the helper’s adjustments come within the specific
exception to the lockout/tagout standard found at the end of 29 C.F.R. 8 1910.147(a)(2)(ii).
Review Commission Administrative Law Judge Edwin G. Salyers concluded that
Westiaco did not prove that it comes under the exception. He affirmed the citation item4
and characterized it as serious. He assessed a penalty of $560, as OSHA had proposed.
The issues before the Commission are: (1) whether the judge erred in concluding that
2(...continued)
The definition of “lockout device” in that same section provided at the time of the inspection and citation as
follows:
A device that utilizes a positive means such as a lock, either key or combination type, to hold
an energy isolating device in the safe position and prevent the energizing of a machine or
equipment.
Although it does not affect this case, that definition was amended in 55 Fed. Reg. 38,685 (1990).
%he record in this case concerns only lockout as a means of controlling hazardous energy. However, as its
name implies, the lockout/tagout standard permits employers to control hazardous energy by using a tagout
system in certain circumstances. Under 29 C.F.R. 5 1910.147(c)(2)(‘) 1 , an employer shall use a tagout system
“[i]f an energy isolating device is not capable of being locked out.” If an energy isolating device is capable
of being locked out, the employer must use lockout “unless the employer can demonstrate that the utilization
of a tagout system will provide full employee protection as set forth in paragraph (c)(3) of this section.” 29 ’
C.F.R. 0 1910.147(c)(2)(ii). See 29 C.F.R. 8 1910.147(c)(3)(i) and (ii).
?he judge noted that, in response to challenges to the lockout/tagout standard filed by labor and industry,
the D.C. Circuit remanded the case to OSHA to further consider certain aspects of the standard’s
promulgation. International UiiiM, United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW v. OSHA, 938 E2d 1310 (D.C. Cir. 1991). The judge correctly stated that the court decision
has no effect on the outcome of the present case because, in its subsequent order on September 16, 1991, the
DC. Circuit refused to stay application of the standard during the remand period.
Since the judge’s decision was issued, the Secretary published his “Supplemental Statement of Reasons” in
response to the court’s remand order. 58 Fed. Reg. 16,612.23 (March 30,1992). On May 27,1993, an industry
party filed a motion with the D.C. Circuit seeking vacation of the standard or suspension of enforcement.
National Association of Manufacturers v. Reich, Docket Nos. 89.1559,89-1657, & 904553.23 BNA OSHR 4-5
(June 2, 1993). On June 17, 1993, the Secretary filed a response with the court in which he defended his
rulemaking and asked the court to dismiss the motion. 23 BNA OSHR 86-67 (June 23, 1993).
3
Westvaco did not establish that the helper’s adjustments fall under the exception in the
standard; (2) whether Westvaco proved that compliance was infeasible; and (3) whether the
judge properly characterized the violation as serious.
I. Background
A. Facts
Westvaco manufactures corrugated paperboard containers at its plant in Eaton, Ohio.
The printer/slotter machine prints on, scores, and slots sheets of corrugated paperboard that
can then be folded into trays for holding cans. Two Westvaco employees work at the
machine, the operator and the helper. During a production run, the helper feeds sheets of
corrugated paperboard into the machine. The machine moves the sheets to the “printing
section,” where graphics of one color are printed at the first print station, and, if required,
graphics of another color are printed at the second station. Then, at the “slotter section”
sheets move through a series of upper and lower shaft heads fitted with corresponding
knives and slots that cut them into smaller sheets, inscribe scoring lines, and cut slots on the
sides of the sheets. After the sheets have moved through the machine, the operator inspects
the finished product at the stacking area.
Because each order for cartons from Westvaco’s customers is unique in terms of
printed matter and size, adjustments to both the printer section and the slotter section must
be made for each order. The typical order ranges from 10,000 to 100,000 trays. The
machine completes an order for 10,000 trays in approximately two hours. Because’ the
average number of orders run per day is three or four, and adjustments to the slotter and
printer sections are necessary before each order, adjustments are made three or four times
a day. The adjustments, which take between 15 and 45 minutes to complete, are made by
the operator and the helper between production runs. The operator adjusts the printer
section, while the helper adjusts the slotter section.
Before the helper adjusts the slotter section, he activates the twist lock stop at the
feed (opposite) end of the machine, presses one of the two mushroom stop buttons located
at each side of the slotting section, and then raises the “layboy arms” used in transporting
4
the corrugated sheets? The helper then adjusts the shaft heads in the slotting section by
positioning the six knife heads on each upper shaft, and their corresponding slotted heads
on the lower shaft. The helper uses a T-wrench, or Allen wrench, to work in between the
shafts and adjust the heads about one-eighth to three-sixteenths of an inch to meet customer
specifications. Each time an adjustment to a head is made, the helper must visually
determine whether the slot and knife are lined up properly by activating the jog control
button, which causes the heads to move at a slow speed.
In order to provide an opening for access to the area where he will change the ink
and printing plates, the operator separates the machine by sliding the printer section, which
moves on rails, away from the slotter section! When the machine is separated, the slotter
section is disconnected from the printer, and the flow of energy to both sections is cut off
except for a small amount of power that allows the helper to jog the heads at a slow speed
at the slotter section and permits the ink at the printing section to continually circulate to
keep it from drying out.
B. Main Contentions of the Parties
According to the Secretary, Westvaco violated section 1910.147(c) because the helper
was making adjustments to the slotter section of the printer/slotter machine, where
unexpected energizing of the entire machine could occur, without the protection of an
energy control program that would isolate the machine and thereby render it inoperative.
More specifically, the Secretary bases the alleged violation on Westvaco’s failure to lockout
the slotting section while the helper made his adjustments.
. ‘This is the procedure that the helper followed at the time of the OSHA compliance officer’s complaint
investigation; it represents the cited condition. After that investigation, a hinged barrier guard was installed
that covers the slotter section. When the helper raises this barrier guard to reach the area requiring
adjustments, the metal on the guard is detected by a sensing device that activates another stop control, which .
is on the same circuit as the stop buttons. According to the Secretary’s expert witness, William Murphy, whose
qualifications are discussed later, see infra note 15, this guard is not “interlocked” because there is no electrical
device that actually locks the guard in place.
kter the compliance offker’s investigation, Westvaco installed a key-operated switch at the location where
the machine separates. After separating the machine, the operator maintains exclusive control of the key until
the machine is once again together.
5
Westvaco claims that it was not required to provide an energy control program to
protect the helper because it is covered by the exception to the requirements of the
lockout/tagout standard at the end of 29 C.F.R. 6 1910.147(a)(2)(ii), which provid.es:
(ii) Normal production operations are not covered by this standard . . . .
Servicing and/or maintenance which takes place during normal production
operations is covered by this standard 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 . . . where work is actually performed upon the material
being processed . . . or where an associated danger zone exists during a
machine operating cycle.
NOTE: Ekception to paragraph (a)(2)(ii):
Minor tool changes and adjustments, and other minor servicing activities,
which take place during nomal production operations,are not covered by this
standard if they are routine, repetitive, and integral to the use of the
equipment for production, provided that the work is performed using
alternative measures which provide effective protection (See subpart 0
[“Machinery and Machine Guarding”] of this part).
(Emphasis added).
II. Did WestvacoProve that the Helper’s Adjustments Fall Withinthe Exception?
The party claiming the benefit of an exception bears the burden of proving that it
comes within that exception. E.g., Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993 CCH
OSHD li 30,059, p. 41,329 (No. 89-2883, 1993) ( consolidated); Dover Elevator Co., 15 BNA
OSHC 1378, 1381, 1991 CCH OSHD lI 29,524, p. 39,849 (No. 88-2642, 1991).
A. U%atthe Ekception Requires
According to the Secretary, “the lockout/tagout standard excepts from coverage
certain types of minor servicing during nonnalproduction operationsso long as the employee
is adequately protected from the hazard by effective alternativemeans.” Under the language
of the exception, the types of minor servicing excepted are “routine, repetitive, and integral
to the use of the equipment for production.” These characteristics are not in dispute in this
case.
Westvaco does not agree with the Secretary’s reading of the exception’s requirements
quoted above. Its interpretation would substantially reduce what must be proven to come
6 *
under the exception. It argues that “there are two exceptions to the lockout requirements
that govern this case,” citing 53 Fed. Reg. 15,498 (1988)(preamble .to proposed rule)’ and
54 Fed. Reg. 36,661.62 (1989)(preamble to final rule).8 However, there is nothing in the
record to support this claim. We have reviewed the referenced pages of the preambles to
the proposed rule and final rule and conclude that the language Westvaco relies on does not
describe a separate exception, but rather different aspects of the rationale for what became
a single exception at the end of section 1910.147(a)(2)@). Westvaco also claims that,
. according to its reading of the preamble at 55 Fed. Reg. 38,679, amending 54 Fed. Reg.
36,662, servicing and maintenance activities are divided into two categories, which Westvaco
describes as:
(1) those that must be performed with the machine locked out . . . and (2)
those minor servicing activities that can be performed when the machine is not
‘The preamble to the proposed rule, 53 Fed. Reg. 15,498 (1988), reads as follows:
The Agency recognizes that there are certain servicing operations which, by their very nature,
must take place without deenergization, such as the testing of energized equipment or
processes. Additionally, certain normal production operations, which are not intended for
coverage by this standard, such as repetitive minor adjustments, can sometimes safely be done
wi[th]out the machine, equipment or process being deenergized and locked out and/or tagged
out, with the use of specific control devices, work practices, employee training and other
measures.
The proposed rule designated as 29 C.F.R. 5 1910.147(a)(2)(iii)(B) provided:
Servicing . . . which takes place during normal production operations, such as . . . making
minor adjustments . . . are not covered by the standard, if it is necessary to perform such
servicing . . . with the machine . . . energized, and if such servicing . . . is performed using
alternative measures which the employer can demonstrate will provide effective protection.
81n the preamble to the final standard, 54 Fed. Reg. 36,661 (1989), OSHA recognized that “the proposed
provision was not clear enough” concerning the types of operations meeting, or not meeting, the exception
and the criteria to be applied in each situation. The preamble clarified that:
Minor tool adjustments and changes or other minor servicing activities performed during
normal production operations, are not covered by lockout or tagout requirements if the
activities are routine, repetitive and integral to the production operation, provided that there
is an alternative means being used . . . which will provide effective protection to employees.
54 Fed. Reg. 66661-62. OSHA also noted the problems that arose from the proposed rule’s requirement that
the employer demonstrate that it was necessary to perform the operation with the machine energized. After
recognizing that “some servicing operations must be performed with the power on,” OSHA did not deem it
necessary in the final exception to require that demonstration by the employer. 54 Fed. Reg. 36,661.
locked out as long as the employee doing the work is protected by either
control switches under his/her exclusive control, local disconnects, interlocked
barrier guards or other alternative protective measures.
. Westvaco’s category (1) consists of the requirement in the proposed exception that was
deemed unnecessary in the final exception. See supra notes 7 and 8. While Westvaco’s
category (2) purports to present the exception at issue, in that it refers to the requirements .
that the servicing be “minor” and that effective alternative protection be used, this assertion
ignores the remaining element of the exception, the requirement that the servicing must be
done “during normal production operations.“g Westvaco also contends that “[tlhe real
question in this case is whether Westvaco utilizes an alternative procedure to lockout that
prevents unintended activation of the machine when the helper is in a machine danger
zone.” We agree with Westvaco that a showing that effective alternative protection is
provided is necessary to meet the exception. However, it is but one of three elements that
must be proven to satisfy the exception.
Having found no support for Westvaco’s view of the exception, we must agree with
the Secretary’s reading of the exception. Therefore, we conclude that, in order to show that
the helper’s adjustments come within the exception, Westvaco has the burden of proving that
the helper’s adjustments are (1) minor, (2) take place during normal production operations,
and that (3) effective alternative protection is provided.
B. Did WestvacoProve that the Adjustments Were Made “During Nomal
Production Operations”?
To determine whether Westvaco has met its burden of proving that the helper’s
adjustments come within the exception, we first consider whether it established that the
helper’s adjustments to the slotter section “take place during normal production operations.”
‘The sentence in the preamble to the amendments to the final rule at 55 Fed. Reg. 38,679, upon which
Westvaco particularly relies for its category (2), specifically recognizes this requirement: “Safeguarding for
minor servicing during nomalproduction operationsmay include, for example, interlocked barrier guards, local
disconnects or control switches which are under the exclusive control of the employee performing the minor
servicing . . . .” (emphasis added).
8
Judge’s Decision
In his decision, the judge noted that “normal production operations” is defined in 29
C.F.R. 5 1910.147(b) as “[t]he utilization of a machine or equipment to perform its intended
production function.” Finding this definition rather vague, he focused on the definition of
“setting up” in 29 C.F.R. 5 1910.147(b), which reads: “[alny work performed to prepare a
machine or equipment to perform its normal production operation.” The judge noted that
“setting up” is listed as an activity under the definition of “servicing and/or maintenance”
in section 1910.147(b),10 and that servicing and maintenance activities are expressly covered
by the lockout standard, under 29 C.F.R. 8 1910.147(a)(2)(i). He stated that, based on the
plain meaning of the exception and these definitions, “work performed on the machine while
the machine is not being operated to actually produce its product is either servicing or
maintenance.” The judge further stated that
work that is performed before the normal production operation in order to
prepare the machine for production is a specific service activity, called setting
uP* Setting up does not occur during normal production operations.
Therefore, setting up cannot, by definition, fall within the exception to
8 1910.147(a)(2)(ii).
(Emphases added).
He concluded that the helper’s adjustments come under the definition of “setting up”
because they “were made to customize each individual order; the adjustments prepared, or
set up, the machine for the next order, or production operation.” He relied on the
preamble at 55 Fed. Reg. 38,680 (1990), amending the final rule’s preamble at 54 Fed. Reg.
I
36,667 (1989) to read:
Anything that is done to prepare a machine or equipment to perform its
normal production operation, such as changing a machine part (e.g., changing
‘O”Seticing and/or maintenance” is defined in section 1910.147(b) as:
Workplace activities such as constructing, installing, setting up, adjusting, inspecting,
modifying, and maintaining and/or servicing machines or equipment. These activities include
lubrication, cleaning or unjamming of machines or equipment and making adjustments or tool
changes, where the employee may be exposed to the unexpected energization or startup of the
equipment or release of hazardous energy.
(First emphasis added).
9
the blade of a power saw), is not considered utilization of a machine or
equipment and is classified as servicing or maintenance rather than normal
production operations.
The judge stated that “[hlaving determined that the helper’s adjustments fall within the
definition of ‘setting up,’ a service activity that is not a part of normal production
operation[s], it is concluded that the helper’s adjustments are not covered by the
exception . . . .”
Westvaco’sArguments
Westvaco contends that the judge erred in interpreting the standard when he held
that the exception could not apply to activity that he characterized as setting up, and that
the exception applies only to servicing that is performed while the machine is actually
making a product.” It maintains that “[a]ny type of servicing, including set up, could fall
within” the exception as long as the exception’s other criteria are met. It argues that,
contrary to the judge’s narrow interpretation, the language in the exception “focuses on the
nature of the work being performed, not on the moment in time when the work occurs.”
Westvaco asserts that the helper’s adjustments affect the size of the product and “are made
when production moves from one customer order to another.” It likens the helper’s
adjustments to “chang[ing] the speed of the machine by adjusting belt drives or other
components which are normally guarded” or “adjust[ing] the movement of a long-bed milling
machine worktable,” which are recognized in the amended preamble as meeting the
exception where effective alternative safeguarding is provided. 55 Fed. Reg. 38,680 (1990),
amending 54 Fed. Reg. 36,666 (1989). Westvaco argues that machine speed changes and
worktable adjustments are activities that could be performed either between orders, like the
helper’s adjustments, or while a particular order is running.
. Thomas Seagraves, Westvaco’s production manager, testified that the production cycle
consists of the time it takes to make the adjustments to the slotter and printer sections
llWestvaco does not discuss separately each of the three elements of the exception at issue (whether the
adjustments are minor, made during normal production operations, and whether effective alternative
protection was provided). Rather it presents most of its contentions by combining its discussion of all three
factors in the exception at issue in this case, and sometimes including factors not in dispute (whether the
adjustments are routine, repetitive, and integral to the use of the machine).
10
together with the time to actually process the order through the press. Westvaco asserts,
as Seagraves testified, that the inclusion of the adjustments in the normal production
operations is underscored by the fact that the adjustments are performed by production
employees, not maintenance personnel.
Dkcussion
The judge found that the helper’s adjustments of the shaft heads to accommodate
each customer’s specifications in anticipation of the next production run is “setting up,” or,
as defined in the standard, “work performed to prepare a machine or equipment to perform
its normal production operation.” (emphasis added). We agree with this determination. We
reject Westvaco’s claim that this element of the exception focuses only on the nature of the
work being performed and not on the moment in time when the work occurs. While the
nature of the work is important to consider, in this case the fact that the work is done prior
to production runs is critical in determining if the adjustments are made during normal
production operations.
The plain meaning of the word “prepare” as it is used to define “setting up” in
section 1910.147(b) includes the idea of activity before some event. One dictionary defines
“prepare” as “to make ready beforehand for some purpose.” Webster’s l%ird New
International Dictionary 1790 (1986 unabridged). Under this definition, the helper’s
adjustments to the shaft heads are clearly done to “prepare” the printer/slotter machine for
normal production operations.
Furthermore, adjustments made toprepare for normal production operations cannot,
at the same point in time, be adjustments that are made “during normal production
operations.” (emphasis added). Work performed “during” is defined as work “at some point
in the course of.” Id. at 703. Such work occurs at a different time than adjustments made
“beforehand,” or while setting up. Based on this definitional distinction, we reject
Westvaco’s argument that the judge erred in finding that the exception cannot apply to
setting up.12 Therefore, we conclude that because the helper’s adjustments constituted
‘?he judge further suggested, in reliance on the quoted portion of the preamble at 55 Fed. Reg. 38,680, that
setting up automatically falls outside the exception because it is “servicing,” a type of activity to which the
(continued...)
“setting up,” they cannot, based on the standard’s definition of that term, be considered to
take place “during normal production operations.“‘ 3 See, e.g., Globe Industies, Inc., 10
BNA OSHC 1596, 1598, 1982 CCH OSHD fl 26,048, p. 32,718 (No. 77-4313, 1982)
(Commission should give reasonable, common-sense interpretations to standards), and cases
cited therein. In light of this disposition, we need not reach Westvaco’s argument concerning
the judge’s further finding that the exception applies only to work performed on the machine
while the machine is actually making its product.
To prove that its case comes within the exception, the employer must show that the
adjustments are minor and made during normal production operations, and that effective
alternative protection is provided. In light of our determination above that Westvaco failed
to prove that the helper’s adjustments were made during normal production operations, we
conclude that Westvaco has not proven that its case falls within the exception at the end of
section 1910.147(a)(2)(ii). Th ere fore, we need not reach the other factors in dispute,
whether the adjustments are “minor” and whether they are made “using alternative
measures which provide effective protection.”
Based on the above, we conclude that Westvaco has failed to prove that the helper’s
adjustments fall within the exception at the end of section 1910.147(a)(2)(ii). Accordingly,
we find that the cited standard, section 1910.147(c)(l) applies, and that, as Westvaco
acknowledges, its terms were not met because the slotter section was not locked out.
III. Did WestvacoProve the InfeasibilityDefense?
To prove the affirmative defense of infeasibility, the employer must show that “(1)
literal compliance with the terms of the cited standard was infeasible under the existing *
12(...continueci)
standard applies. We agree with Westvaco that this reasoning is inappropriate. While it is true that the
lockout/tagout standard is generally applicable to servicing and maintenance, not to normal production
operations, what is at issue here is an exception to the standard’s general applicability provisions. The
exception provision at issue here recognizes that there are certain types of servicing that must be done during
normal production operations, and, for those activities, the standard does not apply if the other requirements
of the exception are established.
13We note that our ruling here is limited to the definitional distinction that prevents an activity that qualifies
as “setting up” from also being an activity that takes place “during normal production operations.” Other
types of “servicing and/or maintenance” work listed in that term’s definition, see sup’s note 10, such as
“unjamming of machines,” could, depending on their respective definitions, be done during normal production
operations.
12
circumstances and (2) an alternative protective measure was used or there was no feasible
alternative measure.“14 Mosser Constr. Co., 15 BNA OSHC 1408, 1416, 1992 CCH OSHD
ll 29,546, p. 39,907 (No. 89-1027, 1991), citingSeibel Modem Mfg. & Wetiing Cop, 15 BNA
OSHC 1218, 1226, 1228, 1991 CCH OSHD l! 29,442, pp. 39,682 & 39,685 (No. 88-821,
1991).
Westvaco generally contends that compliance would not be feasible because energy
was required to jog the heads in the slotter section and to keep the ink circulating in the
printer section. However, as discussed above, the Secretary does not contend that the
energy required for the jog mode posed a hazard to the helper, or that the energy required
for ink circulation posed a hazard to the operator. Rather, the Secretary asserts that the
energy against which the helper needs protection is the energization of the entire machine.
Westvaco also argues that it would be infeasible to implement the abatement
measures suggested by the Secretary’s witnesses compliance officer Jack Peterson, who
conducted the complaint investigation, and expert William Murphy, the Area Director for
the OSHA Cincinnati Office, who conducted the discovery inspection.
William Murphy, who was qualified by the judge as an expert in the lockout/tagout
field,15 testified that Westvaco could abate the violative condition by installing a hasp and
14An affirmative defense ordinarily must be initially pleaded by the employer in its answer, according to Rule
36(b) of the Commission’s Rules of Procedure, 29 C.F.R. 5 2200.36(b). Westvaco did not specifically raise
the particular affirmative defense of infeasibility in its answer. However, the Secretary does not take issue with
its inclusion as an issue in the direction for review. Because the issue has been briefed by the parties, we will
consider it. See generaZ/yBill C’. Carroll Co., 7 BNA OSHC 1806,1810,1979 CCH OSHD ll23,940, pp. 29,032. *
33 (No. 76.2748,1979) (Secretary on notice about unpreventable employee misconduct contention). See Rule
107 of the Commission’s Rules of Procedure, 29 C.F.R. 5 2200.107.
15Murphy had been Area Director of the OSHA Cincinnati Office since 1979. He testified as follows
concerning his background and experience in lockout. He had worked as an OSHA compliance officer from
1973 until 1977, when he became a supervisor of compliance officers. Prior to his OSHA jobs, he worked on
machines that performed the same functions as the printer/slotter machine at issue here. At OSHA Murphy
developed a sheet on lockout policy under section S(a)(l) of the Act, 29 USC. 8 654, the general duty clause,
that was used by his own as well as other OSHA offices within OSHA’s Region V. He also conducted
numerous training sessions and seminars on lockout for such organizations as the National Safety Council and
the General Motors UAW Training Center. He also had been an instructor in machine guarding, including
lockout, at OSHA’s training institute in Illinois. When the draft lockout/tagout standard was issued, he
provided comments on it for his own office, which were submitted as the Region’s comments, In those
comments, he focused on the exception. at issue here, when minor adjustments take place during normal
(continued...)
13
small lock on the slotter gear at the point where the machine separates. He stated that, with
the hasp installed, the machine could not be accidentally closed up once the separation had
been accomplished.
Westvaco’s production manager Seagraves acknowledged in his testimony that
installation of the hasp and lock would “prevent the drive train from activating itself.”
However, he expressed the view that “clos[ing] one section of the press onto the other with
this bul@ item in between” could possibly break the gears. When asked on cross-
examination about his testimony that the hasp and lock would wreck the gears, Seagraves
.responded that “we’ve had discussions about it. We have not gone to the extent of putting
that particular type of guard on the machine.”
The judge found that Murphy’s suggestion was “both simple and expedient.” He
determined that there was “nothing in the record that would preclude” use of the small lock
and hasp on the slotter gear to protect the helper.
Although Seagraves speculated that the gears could be wrecked if the machine were
closed with the hasp and lock between the sections, this would seem to occur only if the
sections were accidentally pushed back together. Without further explanation, Seagraves’
speculation does not rebut Murphy’s testimony that the hasp and lock would be a feasible
means to abate in compliance with the standard. l6 We therefore agree with the judge and
conclude that, based on the testimony above, Westvaco has not proven by a preponderance
of the evidence that Murphy’s suggested abatement measure would be infeasible.
production operations.
After the Secretary moved at the hearing to have Murphy qualified as an expert, Westvaco’scounsel conducted
a short void dire, during which Murphy stated that the lockout cases in which he had been previously qualified
as an expert were brought under section S(a)(l) because they preceded the issuance of the standard at section
1910.147. Westvaco did not object to having Murphy certified as a lockout expert.
%s noted above, following the compliance officer’s investigation, the basis for the citation item at issue here,
Westvaco installed a key-operated switch at the separation point of the printer/slotter machine. See supra note
- Murphy observed that switch during his discovery inspection, noting that the operator kept the key after
separatingthe machine. He opined that, although it would not technically satisfy the standard, Westvaco could
providethe helper with effective alternative protection from the hazard of unexpected energization under these
changed conditions by entrusting the key to the exclusive control of the helper, who generally takes moretime
to make his adjustments than the operator.14 In addition to Murphy, the compliance officer offered testimony concerning asuggested means of abatement. However, because we find that Westvaco has not
established that Murphy’s suggestion was infeasible, we need not reach Westvaco’s argument
that the separate disconnect feature proposed by the compliance officer was infeasible. Nor
do we need to consider whether Westvaco established the second element of the defense,
that it provided an alternative protective measure.
Having concluded that Westvaco failed to prove that at least one of the suggested
means of abatement was infeasible, we determine that Westvaco has not proven the
affirmative defense. We therefore find that Westvaco violated section 1910.147(c)( 1).
IV. Was the ViolationProperlyCharacterizedas Serious?
The judge rejected Westvaco’s claim that, if a violation were found, it should be
characterized as de &zimis. He stated that such a characterization is proper only where
there is a negligible relationship to safety and health and abatement would be inappropriate.
The judge stated that the helper was left unprotected while making his adjustments to the
shaft heads, and his hands were in the immediate area of the slotting, scoring, and trim
knives. Finding that the helper faced the hazard of his hands being crushed or amputated,
the judge determined that the violation had more than a negligible relationship to safety; he
classified it as serious.
Westvaco argues that the judge erred in characterizing the violation as serious,
thereby rejecting its argument that the violation was de minimis.
A de minimis violation is one having no direct or immediate relationship to employee
safety, where “the hazard is so trifling that an abatement order would not significantly
promote the objectives of the Act.” Dover Elevator Co., 15 BNA OSHC at 1382, 1991 CCH
. OSHD at p. 39,850. Here the hazard is not a trifling one. The unexpected energization of
the machine could injure the helper, even causing amputation. Because an abatement order
would eliminate this hazard, we conclude that the violation is not de mioimk. We also .
conclude that the judge properly characterized the violation as serious under section 17(k)
of the Act, 29 U.S.C. 8 666(k), because there is a substantial probability that serious physical
harm could result if unexpected energization occurred.15 V. Order For the reasons stated above, we conclude that Westvaco committed a seriousviolation of the lockout/tagout standard at section 1910.147(c)(l). Having considered the
penalty factors in section 17(j) of the Act, 29 U.S.C. 0 666(j), we find the penalty of $560
proposed by OSHA and assessed by the judge to be appropriate. We therefore assess a
penalty of $560 for the violation of section 1910.147(c)( 1).
It is so ordered.Edwin G. Foulke, Jr. Chairman CommissionerDated: Septaber 14. 1993
UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre 1120 20th Street, N.W. - 9th Floor Washington, DC 20036-3419 FAX: COM (202) 60&5050 Fn (202) 606-5050
SECRETARY OF LABOR,
Complainant,
v. .. Docket No. 90-1341
WESTVACO CORP.,
.
.
Respondent.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
September 14.1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAINREVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.
FOR THE COMMISSION
September 14, 1993
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 90-1341
NOTICE IS &IVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Charles M. Chadd, Esq.
Pope, Ballard, Shepard & Fowle, LTD.
69 West Washington Street
Suite 3200
Chicago, IL 60602
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825
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SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-1341
WESTVACO
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on April 3? 1992. The decision of the Judge
will become a final order of the Commission on May 4, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
April 23, P992 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: April 3, 1992
DOCKET NO. 90-1341
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of t%e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Charles M. Chadd, Es .
PO e Ballard Shepard ‘& Fowle, Ltd
69%est Washin ton Street
Chicago, IL 606 %2
Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00103241444:05
UNITED STATES OF AMERICA
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..
SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC Docket No.: 90-1341
WESTVACO CORPORATION,
Respondent.
Appearances:
Christopher J. Camey, Esquire Charles M. Chadd, Esquire
Office of the Solicitor Pope, Ballard, Shepard & Fowle, Ltd.
U. S. Department of Labor Chicago, Illinois
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Edwin G. Salyers
DECISION AND ORDER
Westyaco Corporation (“Westvaco ”), .was issued a two-item citation on March 29,
1990, pursuant to an inspection conducted by the Occupational Safety and Health
Administration (“OSHA”). Westvaco contested the citation, and a hearing was held in the
matter on January 30, 1991. Prior to the hearing, the parties settled Item 2 of the citation,
which alleged a serious violation of 29 C.F.R. 8 1910.212(a)(l) (Tr.5). The settlement
agreement reached on this item will be incorporated into the order issued with this decision.
Left for consideration is Item 1, which alleges a serious violation of 29 C.F.R.
Q 1910.147(c)(l), for failure to establish a program consisting of an energy control procedure
and employee training to protect employees from the unexpected energizing, start up, or
release of stored energy of a machine. The cited standard is part of OSHA’s lockout/tagout
standard, 0 1910.147, which became effective on January 2, 1990. This appears to be a case
of first impression for interpretation of the new standard by the Commission?
Background
Westvaco manufactures corrugated shipping cartons at its Eaton, Ohio, facility
(Tr. 167). On February 14, 1990, OSHA compliance officer Jack Peterson conducted an
inspection of Westvaco’s plant pursuant to a formal employee complaint regarding excessive
noise at the facility. The complaint was later determined to be without merit (Tr. 28).
During the course of his inspection, Peterson asked Westvaco representatives if the
company had a lockout procedure (Tr. 31). Peterson reviewed a document presented to
him, entitled “Guidelines For Applicability and Use of L,ockout/Tagout Procedures” (Exh. C-
3). Peterson concluded that the document was not a lockout/tagout program, but rather an
instruction outlining the elements of such a program for a manufacturing plant (Tr. 32-33).
Peterson expanded the scope of his inspection to include Westvaco’s lockout program as it
was actually applied (Tr. 35-36).
The Westvaco plant’s production operations are divided into two sections. The first
section is the corrugator section, which produces solid sheets of multi-layer paper. The
second section is the converting operation (Tr. 167-168).
One of the machines used in the converting operation is a 35inch printer/slotter
machine (Exhs. C-4, R-2; Tr. 37, 169), which is the central focus of this case. The machine
comprises four sections: a feed table, two print stations, and a slotting/scoring section (Exh.
R-2). The machine converts corrugated
. paperboard into corrugated cartons and boxes,
according to customer specifications (Tr. 168). The machine prints graphics on the
corrugated paperboard and then feeds the printed, corrugated paperboard through a series -
of shafts that have slotting, scoring and trim knives (Tr. 171-172). Two employees, an
operator and a helper, operate the machine (Tr. 179-180).
’ The parties have called to the attention of this court InternationalUnion, UnitedAutomobile, Aerospace and
Agricultural Implement Workers of America v. OSHA, No. 894559 (D. C. Cir. July 12, 1991)[slip opinion],
wherein the lockout/tagout standard was remanded to OSHA for reconsideration of certain aspects of the
standard’s promulgation. In a subsequent order, dated September 16, 1991; however, the Circuit refused to
stay application of the lockout/tagout standard during the remand procedures. This case has no present effect
upon the outcome of the instant action.
. 2
The slotting/scoring section of the machine contains two sets of shafts. Each shaft
has a number of heads. The first set of shafts contains the heads that perform the cutting
and scoring operation. The second set of shafts contains the heads that perform the slotting
operation (Exhs. R-9, R-10; Tr. 200-201). At issue in this case is the method used by
Westvaco to adjust the position of the heads on the shafts.
Approximately every two hours, three or four times a shift, a customer order is
completed on the machine. Every order is unique; therefore, adjustments must be made for
each new order to the slotting, scoring and trim knives (Tr. 181). The adjustments take from
15 to 45 minutes to complete (Tr. 195). The adjustments are initiated when the last sheet
of an order runs through the machine (Tr. 181).
Peterson observed adjustments being made on the machine at the end of an order
(Tr. 37).. The employees removed and added cutting components and made other
adjustments to the slotting, scoring, and trim knives. The employees’ hands were in the
immediate area of the knives. The adjustments took between 15 and 30 minutes to
complete (Tr. 38-39).
The on/off switch for the machine is located at its in-feed section (printer section),
approximately twelve feet from the slotting/scoring section. The employee cannot see the
on/off switch while he is working at the slotting/scoring section (ES. C-8; Tr. 50-51). A push
button control circuit is located on either side of the slotting/scoring section (Exhs. C-4, C-5).
When the machine is ready for adjustment, the helper activates the stop button on
the control panel at the printer section. The helper then moves to the slotting/scoring
section, where he activates at least one of the red stop controls located at that section. He
proceeds to raise the conveyor transport arms to gain access to the slotting/scoring section
(Tr. 181, 184).
The helper must position six heads on each shaft. Each head has a matching head
on the shaft below, which also has to be relocated and properly positioned (Tr. 187). Power
is required each time an adjustment is made because the helper must visually verify that the
slot and knife are lined up properly (Tr. 202-203). The machine cannot be de-energized
because of the need for power to “jog” the heads to visually verify their positions. The
3
machine also needs power to allow the inking systems to function properly, continually
circulating the ink so it does not dry up within the system (Tr. 215).
While an order is being run, the operator is located at the machine’s stacking area,
20 to 30 feet away from the press (Tr. 180). When the customer order is complete, the
operator finishes his paperwork and goes to an area where the machine splits. He uses a
switch to open the machine. During an order change, the operator is responsible for
changing the inking system and the printing plates, and relocating the pull collars if necessary
(Tr. 188). The operator’s work at the split in the machine usually takes about a third of the
time required for the helper’s adjustments in the slotting/scoring section (Tr. 216). At the
time of Peterson’s inspection, the practice was not to split the machine during the initial
adjustments made to the slotter by the helper. Peterson observed the helper making
adjustments in the slotting system before the machine was split (Tr. 54,56). Subsequent to
the issuance of the citation, Westvaco installed a barrier cage guard. The guard was on the
same circuitry as the stop buttons (Tr. 129-130).
The LockoutlTagout Standard
29 C.F.R. 5 1910.147(c)( 1) provides:
The employer shall establish a program consisting of an energy control
procedure and employee training to ensure that before any employee
performs any servicing or maintenance on a machine or equipment when the
unexpected energizing, start up or release of stored energy could occur and
cause injury, the machine or equipment shall be isolated, and rendered
inoperative, in accordance with paragraph (c)(4) of this section.*
The Secretary contends that Westvaco was in serious violation of this standard. Westvaco
does not dispute that at the time of the inspection, the machine was not locked out while
the helper adjusted the machine’s shaft h.eads (Tr. 225).
2 This standard was amended slightly after Westvaco received the citation for the alleged violation. The new
standard reads: “The employer shall establish a program consisting of energy control procedures, employee .
training, and periodic inspections to ensure that before any employee performs any servicing or maintenance
on a machine or equipment where the unexpected energizing, start up or release of stored energy could occur
and cause injury, the machine or equipment shall be isolated from the energy source, and rendered
inoperative.”
It must first be determined whether the cited standard applies to the conditions
existing at the time of the inspection. Astra Pharmaceutical Products, Inc., 9 BNA
OSHC 2126, 1981 CCH OSHD II 25,258 (No. 78-6247, 1979), afd sub nom., Astra
Pharmaceutical v. OSHRC, 681 F.2d 69 (1st Cir. 1982).
29 C.F.R. 0 1910.147(a)(2) provides in pertinent part:
0i This standard applies to the control of energy during servicing and/or
maintenance of machines and equipment.
(ii) Normal production operations are not covered by this standard (See
subpart 0 of this Part). Servicing and/or maintenance which takes place
during normal production operations is covered by this standard 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 upon the material being processed
(point of operation) or where an associated danger zone exists
during a machine operating cycle.
Westvaco seeks refuge in an exception to the above-cited standard:
Note: Exception to paragraph (a)(2)@:
Minor tool changes and adjustments, and .other minor servicing activities,
which take place during normal production operations, are not covered by this
standard if they are routine, repetitive, and integral to the use of the
equipment for production, provided that the work is performed using
alternative measures which provide effective protection. (See Subpart 0 of
this Part).
In order to meet the requirements of this exception, Westvaco must show that (1) the
adjustments made to the shaft heads were minor, (2) the adjustments were made during
normal production operations, and (3) alternative measures were used to protect the helper
during the adjustments. Westvaco contends that all three of these requirements have been
met, while the Secretary contends that Westvaco met none of them.
The second element will be addressed first, because it is the easiest to resolve and
is thus the quickest way to show that the helper’s adjustments do not fall within the ambit
of the exception.
The exception mandates that the adjustments “take place during nomal production
operations. ” The standard defines normal production operations, at 8 1910.147(b), as: “The
utilization of a machine or equipment to perform its intended production function.” This
definition by itself is rather vague. Its limits come into better focus when reference is made
to the definition of “setting up,” which is not a production operation: “Any work performed
to prepare a machine or equipment to perform its normal production operation.” Setting
up is one of the activities included in the “servicing and/or maintenance” definition. The
activities listed in that definition are expressly covered by the lockout standard, as stated in
5 1910.147(a)(i).
The plain meaning of the exception, read in conjunction with the definitions, is that
work performed on the machine while the machine is. not being operated to actually produce
its product is either servicing or maintenance. Furthermore, work that is performed before
the normal production operation in order to prepare the machine for production is a specific
service activity, called setting up. Setting up does not occur during normal production
operations. Therefore, setting up cannot, by definition, fall within the exception to
8 1910.147(a)(2)(ii).
Applying the standard to the facts at issue, it is determined that the helper was setting
up when he made the adjustments to the shaft heads. The adjustments were made to
customize each individual order; the adjustments prepared, or set up, the machine for the
next order, or production operation.
Reference to the amended preamble of the lockout standard bolsters this
interpretation of the standard:
Anything that is done to prepare a machine or equipment to perform its
normal production operation, such as changing a machine part (e.g., changing
the blade of a power saw), is not considered utilization of a machine or
equipment and is classified as servicing or maintenance rather than normal
production operations.’
Federal Register 38,680 amending 54 Federal Register 36,667. Changing a saw blade is
analogous to adjusting heads to score and slot corrugated paperboard in a different
configuration.
Westvaco argues in its reply brief that, “[tlhis passage has no bearing on the minor
servicing exception. The words of the passage, as amended, particularly when read in
context, are referring to the distinction between ‘normal production operations’ and
‘servicing or maintenance.’ That distinction is not relevant to this case because the minor
seIvicing exception carves out a class of servicing activities that do not have to be performed
under full lockout requirements” (Westvaco’s Reply Brief, p. 4). It is unclear what Westvaco
means by this. The distinction between “normal production operations” and “servicing
and/or maintenance” is critical to the minor servicing exception. The exception expressly
does not apply if the minor servicing does not take place during normal production
operations.
Having determined that the helper’s adjustments fall within the definition of “setting
up,” a service activity that is not a part of normal production operation, it is concluded that
the helper’s adjustments are not covered by the exception to paragraph (a)(2)(i).
The other two elements of the exception as applied to this case will be briefly
addressed. The first element requires that the adjustments be “minor.” Westvaco and the
Secretary hold differing opinions as to what constitutes “minor.”
The Secretary contends that the adjustments made by the helper are not minor,
primarily because of the time factor. Adjustments take from 15 to 45 minutes. The
Secretary asserts that this is prima facie evidence that the adjustments are major.
Westvaco points out that nothing in the standard or its preamble mentions time as
a factor in the determination of what is “minor” (Tr. 79-83). The company focuses not on
the amount of time required to make the adjustments, but the actual activity involved in
making the adjustments. Each adjustment consists of loosening, moving, and tightening a
head. The adjustments are made by unskilled production personnel. Recourse to the
dictionary reveals that “minor” is “[llesser or smaller in amount, extent, or size.” American
Heritage Dictionary, 800 (2nd Ed. 1982). Although this definition is rather vague, it does
support Westvaco’s argument in that it omits any reference to time. It is not necessary,
however, to decide the issue of whether the adjustments are minor.
The third element requires that the company provide an alternative means of
protection to employees working on a machine that is not locked out. Westvaco had two
7
stop buttons on the front of the machine and one on the rear. All three buttons were on
the same circuitry. This system is not an energy isolating device as defined by 8 1910.147(b).
There was no redundancy in the system; if one button failed, all three would fail (Tr. l31-
134).3 Westvaco failed to provide adequate alternative protection to locking out.
.
Westvaco did not have a lockout program in place for the printer/slotter machine.
The adjustments made to the heads between production runs did not fall within the
.
exception to 5 1910.147(d)(2)(ii). Th ere fore, Westvaco was in violation of the standard.
The Violation Was Serious
Westvaco argues that even if it was in violation of the standard, the violation should
be classified as de minimis. “A violation is properly characterized as de minimis where it has
only a negligible relationship to safety and health and where it is thus inappropriate to
require that the violation be abated or to assess a penalty.” NationalRollingMills Company,
4 BNA OSHC 1719, 1720, 1976 CCH OSHD li 21,114 (No. 7987, 1976).
Westvaco’s violation of 6 1910.147(C)( 1) left the helper unprotected while making
adjustments to the shaft heads of the machine. The helper’s hands were in the immediate
area of the slotting, scoring, and trim knives (Tr. 38-39). The hazard to the employee was
possible crushing or amputation of his hands. The violation has more than a negligible
relationship to safety and will be classified as serious.
Methods of Abatement
The Secretary proposed two methods of abatement. Peterson recommended that
Westvaco lock out the machine at its slotter section, while still maintaining ink circulation
and “jog” energy (Tr. 71-73).
William Murphy, the Area Director for Cincinnati’s OSHA office, suggested another
method of abatement. Murphy suggested that the printer and slotter section be separated
at the beginning of each set up. This court has found nothing in the record that would
preclude this arrangement. Westvaco could then install a small lock and clasp on the slotter
gear. The machine could still jog the heads of the slotter section while preventing an
’ This conclusion is based upon the testimony of Area Director William Murphy, who has had extensive
training and experience in the lockout/tagout field and was considered a credible witness.
8
inadvertent activation, since the slotter gear would be unable to fully engage with the printer
section (Tr. 142). Murphy’s suggestion for abatement is both simple and expedient. With
the printer and slotter sections separated, the helper would retain possession of the key
while he is working on the heads. Use of this method would render it physically impossible
for the helper to work in the danger area of the heads and activate the machine at the same
time (Tr. 144).
Penalty
Under section 17(j) of the Act, the Commission is required to find and give due
consideration to the size of the employer’s business, the gravity of the offense, the good faith
of the employer, and the history of previous violations in determining the appropriate
penalty.
Upon due consideration of the relevant factors, it is determined that a penalty of
$560.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LA\7v
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
Based upon the foregoing decision, it is hereby ORDERED that:
1a Item 1 of the citation is affirmed and a penalty of $560.00 is assessed, and
2. Item 2 of the citation is affirmed and a penalty of $350.00 is assessed, in
accordance with the partial settlement agreement.
.
EDWIN G. SALYE
Judge
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