DCS Sanitation Management, Inc.
Willful lockout violations affirmed after fatal cleaning incident
Apply this to your situation
This order from 1995 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
DCS Sanitation Management cleaned operating meat-processing equipment at an IBP plant in Nebraska. OSHA cited five willful lockout/tagout violations after an employee was killed while cleaning a running loin saddle table. Administrative Law Judge James H. Barkley found that supervisors knew employees routinely bypassed lockout procedures, sometimes failed to issue locks, and did not effectively enforce the written program. He affirmed the items concerning lockout hardware, employee training, and machine isolation as willful, assessing $70,000 for each. He vacated the written-procedure item because OSHA stipulated that DCS had an adequate written procedure, and vacated another item as duplicative of the training violation. The total assessed penalty was $210,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.147(c)(4)(ii), 1910.147(c)(5)(i), 1910.147(c)(7)(i), 1910.147(d)(1), and 1910.147(d)(3).
- Outcome: Mixed. Three willful items were affirmed with $210,000 in total penalties, and two items were vacated.
- Key point: A written lockout program did not protect the employer when supervisors knew of widespread noncompliance, failed to supply locks promptly, and did not enforce the rules.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE:
C0M(202)606-5100
Frs(202)606-5100
SECRETARY OF LABOR
CornplainaIlt,
v. OSHRC DOCKET
NO. 93-3023
DCS SANITATION MANAGEMENT, INC.
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 13, 1995. The decision of the Judge
will become a final order of the Commission on May 15, 1995 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
May 4, 19B5 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE CO-ION 1
Date: April 13, 1995
DOCKET NO. 93-3023
NOTICE IS GIVEN TO THE FOLLOWING:
Tedrick Housh, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
1210 City Center Squire
1100 Main Street
Kansas City, MO 64105
Patrick M. Roby, Esquire
Elderkin & Pirnie, P. L. C.
Suite 700, Higley Building
113 3rd Avenue, S. C.
P. 0. Box 1968
Cedar Rapids, IA 52406 1968
James H. Barkley
Administrative Law Jud e
Occupational Safety an cf Health
Review Commissron
Room 250
1244 North S eer Boulevard
Denver, CO if0204 3582
00109321505 :07
WEDSTATESff AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMlSStON .
8 1244 N. Spear Boutevad
Room250
Denvw, coiomdo 802044582
SECRETARY
. OF LABOR,
Cumplainan~
v. OSHRC DocKEr
NO. 93-3023
Des SANITATION
MAGEMENT, IN&
Respondent. ,
APPEARANCES:
For the complainant:
Dewqr P. Sloan, Jr., Esq., Ofb of the Solicitor,U.S. Department of Labor,
Khnsascity, lht!ksouri
For the Respondent:
Patrick, M. Roby, Esq., EMerkh & Pin&, P.LC, Gdar Rapids,Iowa
Before: Administrative Law Judge James
. H. Bark@
ECISION AND ORDER *
l
.This proceeding arises under the Occupational safety and Health Act of 1970 (29
U.S.C Section 651@ seq.; hereafter cakd the “Act”).
Respondent, DCS Sanitation Management, Inc. m), at all times relevant to this
action maintained a worksite at the IBP meat processing plant at 1200~Industrial Park,
Madison, Nebraska, where it was engaged in janitorial services. Respondent admits it is
an employer engaged in a business affecting commerce and is subject to the requirements
. of the Act.
On October 7, 1993, pursuant to an accident immtigation of DCS’ Mati
worksite, the occupational safety and Health Administration (OSHA) issued a ‘tnillful”
citation, together with proposed penalties, alleging violations of the Act. By filing a
timely notice of contest Respondent brought this proceeding before the Occupational
Safety and Health Review Commission (Commission).
On November U-16,1994 a hearing was held in Norfo& Nebraska. T’he parties
have submitted briefi on the issues and this matter is ready for disposition.
FACIS
During the relevant periods, DCS provided sanitation services for IBP’s Madison,
Nebraska meat processing plant. DCS procedures require workers to wash down IBP’s
meat processing equiptient and floors with high pressure hot water hoses; chemical foam
is then applied to the equipment to break down solid wastes, and is hosed away pr. 2%
29). The equipment must be running during the hose down process (Tr. 229-30).
The DCS lockout/tagout program requires that equipment be locked or tagged out
“whenever a DCS employee is required to physically touch, climb in, under, or on or
break the plane uf operation of machinery or equipment” (Exh. C-3, p. 5). New hires
are shown a short videotape in English and in Spanish covering all of DC& safety rules,
including lockout&gout (Exh. C-21, R-32). Employees are instructed in the training
video never to reach into an auger, belt or conveyor to grab a piece of meat, fat, string,
or sotid product. (l%h. R-29, p.3). Tobin Schacher, DCS contract manager testified that
DtX employees were further instructed to hose down the Inning machinery from at
least two feet away, and to stay away from pinch points (Tr. 168-69): Schmher testified
that DCS conduc&d monthly safety meetings in English and Spanish, in&ding April
July, and December 1992 safety meetings mering lockout/‘tagout procedures pr. 169,
172; Errs. R-19, R-22, R-25), and that l&s were issued to the DCS cut floor clean-up
crew (Tr. 172; Exh. R-27). Bernie Berigan, DCS’ safety mordinator, test&d that its
program requires that employees be trained on individual pieces of equipment as well as
in the general lockout/tagout requirements (Tr. 238-39).
Schacher stated that employees were disciplined for violations of the
lockout/tagout rules with either suspension or termination (Tr. 173). Three employees
2
were reprimanded for lockout/tagout violations between January 1992 and the date of the
accident; one was terminated (I&h. R-28). Each of the disciplined employees had suf-
fered an injury (Tr. 183-84). Schacher stated he was unaware of any specific employee
violations where no action was taken ur. 173,179).
Schticher admitted that he wasn’t usually on the cut floor because of his duties
elsewhere (JYr. 173). He testified that he knew the DCS cleaning crew did not have
much time to do its job, and suspected that Des employees were reaching into the
equipment they were cleaning while the equipment was run&g to avoid travel&g all the
way across the floor to lock out the machine frf. 165). Schacher stated that he did not
encomge employees to bypass the lockout requirements, md that he couldn’t catch
them at it (Tr. 165, 179). Schacher was, however, aware of incidents where DCS
employees got caught in the equipment, and admitted that IBP employees had told him,
once. or twice, of DCS employee’s violating the lockout/&gout policy (Tr. 165). Schacher
was also aware that there was a problem with “dry pickup,” bones which could not be
hosed out, but had to be removed by hand, at the loin saddle table (Tr. 167). Schacher
knew that in 1990 an IBP employee had been killed at the same loin saddle table which
is the subject of this action
. fir. 164). Schacher testied that there was no written proce-
dure governing the removal of the dry pickup fkom the loin saddle table (Tr. 168). .
. IMn Brabec, IBP’s maintenance supervisor, test&d that he worked the same
shift as DCS emplayees apprhately siir days a month (Tr. 55, 68). Brah testified
that several times between 1990 and 1993 he saw Des employees walking on. tables that
were running and/or reaching into tables or augurs that were not shut down, in order to
clean out product vr. 63-64). Brabec stated that under DBP’slockout&out program
the tables should have been locked out vr. 65). Brabec stated that he would signal the
employee to stop and inform either Tobin Schacher, or Joel Zarate, DCS spanish
speaking supetir, of the problem (Tr. 65). Brabec testified that Zarate generally
promised to taIk to the employee in question; Tobin would shrug his shoulders and walk
away (Tr. 66). .
m ’
Eddie Vela, IBP general maintenance, also testified that he had seen DCS
employees walking on top of, and scrubbing tables that were still running QYr.87). Vela
3 .
stated that DCS employees would sometimes start working the same night they applied
for a job (Tr. 93). &la did not see DCS employees with lockoutftagout lock, on one
occasion he saw Zarate ask an employee where his lock was. Zarate did not direct the
employee, who had left his lock in a locker, to retrieve the lock (R. 96).
Doug Simmons, IBP’s product control manager, testified that on a number of
Occasionsbetween 1990 and 1993, he observed Des employees reaching their hands into
a conveyor or table to pick off product, walking on the main break tables while the tables
were running, and using fat augers as ladders.ur. 103-04). Simmons recalled incidents in
1991 and 1992 in which= 1) a Des employee reached into a conveyor to grab a piece of
fat that was spinning around a roller, catching his hand, immediately %fter Simmons and
a DCS supervisor turned away from him during an inspection (Tr. 106); 2) an employee
caught his hand in the rii belt and had to be cut loose (Tr. 107); 3) an employee caught
his hand in the skinless belly belt, which had to be cut (Tr. 107). Simmons stated that he
reported lockout/‘tagout incidents to either Schacher or Zarate. Simmons testified that
these incidents were also reported to members of IBP’s plant management vr. 10!5).
Steve Jarchow, IBP’s safety director, also testified that he had, in 1991 and 1992,
observed Des employees working on and cleaning machinery that was not locked out,
and reported it to Schacher (Tr. 115,116). On April 8, 1993, he sent Schacher a memo
following an incident where Jesus Lnpez, a DCS employee, caught his glove on the belt
splice, pulling his hand into the belt pulley (WI. C-6). Lopez received a written repri-
mand following the incident vr. 11% &h. G28). .
Injury reports concerning DCS personnel were prepared for IBP manawen$
includingthe plant manager, Mitz Bailey vr. 108). DCS’ Schacher admitted that be had
discussions with Bailq-regarding Des lockout/tagout problems. Schacher stated that he
let his foremen know that anyone not following procedures would be suspended CIYr.
174-
75).
Simmons stated that DCS’ response to lockout/tagout incidents seemed to improve
between 1990 and 1993; in 1993 Mitz Bailey signed an inspection report indicating that
DCS’ lockout/tagout program was operating satisfactorily(Tr. 106, 109). Harold Keast,
DCS’ midwest regional manager; tiles Andreasen, Des operations manager; Michael
4
Kelly, DCS’ area manager, all testified that routine inspections and audits failed to &-
close problems with enforcement of the lockout/tagout program at the Madison plant
(Tr. 223, 227, 252-55, 269-71). bnce White, DCS’ president, testified that the company
has reduced OSHA recordable injuries 64.8% since 1990, from 58.8 to 20.7 per year, rr.
281, 292). l
As recently as October 1992, however, Des’s routine audit indicated that the
safety program in Madison needed improvement in most arm in&ding orientation,
meetings, safety checklists, kxkoutftagout, and STOP check program (l&h. C-8). More-
over, Reynaldo Cervantes, an assistant area director with OSHA, testified that DCS
remained above the national average of 14 for recordable injuries in the meat process&
industry (T’r. 295).
On April 16, 1993, S&adore Hemandez was cleaning the loin saddle table, when
he was struck on the head and killed. The table had not been locked out, and was nm-
ning at the time. Q’L 114-15). The evidence establishes that Hemandez viewed Dee;
safety videotape (I&h. R-13), attended all three of the 1992 lockoutftagout safety
meetings (WI. R-19, R-22, R-25), and when interviewed in December 1992 and March
1993, indicated that he understood the lockout/tagout requirements (Tr. 244, Exh. R-15,
R-16).
Manuel Hemandez, the decedent’s brother, testified that he worked for DCS for
approximately a month and one half prior to the accjdent (‘IYr.139). M. Hemandez
stated that he was shown a short videotape OIIbckout/tagout procedures, and was taken
to the area where he was going to work where he was shown what to do vr. 139,149).
M. Hemandez was shown the on/off switch for the equipment he was to clean. He was
not shown how to lock out the machinery, and was not issued a lock CR. 140). He was
not told the dangers associated with failing to loclr out the machiney, in f&t, the
supervisor himself put a rag through the machine while it was running (Tr. 141,144). M
Hemandez stated that it was the cummon practice to clean the quipment without
locking it out (Tr. 145, 151). M. Hemandez knew from the video that the equipment
should have been locked out, but believed it was not done because there were no locks
(Tr. 146).
5
Thomas luna was an W clean-up crew for four months. Luna stated that he
was issued a lock three days &er he started with DCS, but did not re&ve any
lockout/tagoutraining. After the iiccident he was shown the panel box to kxk out his
machine; prior to that he merely shut off the machine with its emergency stop cable,
LUM stated that it was common practice to clean the machinery without locking it auf,
because DCS was understaffed and the crew had to cut comers in order to get the job
done. Luna stated that Joel Karate, his supervisor, was aware of this practice. Luna
further stated that after the accident the cleaning staff has doubled- Luna stated that
when he worked for Des in 1989 and 1990 it was Joel’s common practice to have the
Spanish speakers sign off on training documents without reading them, some were illiter-
ate and could not read them. On the day of the accident, his clean up crew, including
the “blue hats,” or trainers, had left their locks in their lockea (Exh. C-30).
Jose Hemandez worked for DCS shortly a year before the accident, and was hired
again two days before the accident. J. Hemandez stated that he had not been issueda
lock prior to the accident. A blue hat showed him how to shut off the machinery, but
did not train him on lockout/tagout procedures. J. Hemandez stated he pulled product
off the lines while the line was running, and that he had seen employees climbing on the
belts while they are running. He stated that now “[IT you get caught you will get in
trouble. It wasn’tlike that before the accident” (Rsh. C-31).
Eusebio Morelos worked for DCS on clean-up for three months- Morelos stated
that upon his initial hire, a blue hat showed him the area he needed to clean and huw to
shut the machine o&, but nothing about lockoutftagout procedures. He was not is&d a
lock for the first month- Before the accident Morelos cleaned the blending machine
without locking it out. He never felt that he would get into 81ly trouble for not lock@
out the blender because all the employees climbed over, and reached into and under the
conveyors and ham and loin lines; and because Joel was on the floor and he did not do
anything about it, Morelos stated that the victim was working for the first time on the
loin line on the night of the accident, and that Joel, who was supposed to train him on
that machine, did not show up until after the accident. Morelos stated that he could not
tell the truth the first time he was interviewed because Joel was interpreting vr. G32).
6 .
Jose Cortez worked on m’s Madison clean-up crew for Eve months. Cortez
testifiedthat it was common practice to reach into and climb over moving belts to save
time. Joel caught Cortez a couple of times picking up product from the moving belts and
verbany reprimanded him; at other times Joel said nothing to him about climbing over
movingbelts. Cortez stated that he told Joel that there ~8s not enough time to clean
and still perform lockout&gout. Cortez felt that he had Joel’s tacit permission not to
use lockout procedures. (Exh. C-33).
Jesus Lopez worked on clean-up for two months- Lopez stated that he did not
receive formal lockout/tagout training until after the accident. He was issueda lock but
was not told how to use it. He did not know whether the machine he was taught to
clean was locked out while he was being trained, but stated that after trahing he simply
shut the machine ofL After the accident he began locking the machine out. (Exb. C-34).
Epifanio Ortiz worked on clean-up for three months. Ortiz stated that he was not
trained to lock out the machine he cleaned. His training included only the location of
the on/off switch. Joel watched Ortiz clean his machine without locking it out and said
nothing. Ortiz did not feel that locking out the machines was required prior to the acci-
dent. (Exh. C-35). l
Rudy A&Verde, a contract manager with DCS, testified that when quizzed the
day after the accident, the members of the cuf floor clean-up crm co-
demonstrated lockout/tagout procedures (Tr. 219-20).
DCS received OSHA citations twice in 1990 for f&iling to follow lockoutjtagout
proceduresur. 1sS; Exh. C-16 through C-19 and C-36 through C-39), includingcitations
for failing to provide means of enforcing compliance with lockout/tagout procedures, and
for cleaning machinery while it was running @. 190).
meged Viulation
ofl910.147(c~4~(ii)
Willful citation 1, item la alleges:
29 CFR 1910.147(c)(4)(ii): Th e energy control procedures did not clearly and specifically
outline the scope, purpose, authorization, rules, and techniques to be utilized for the
control or hazardous energy, including, but not limited to Items A-D of this section
7
The specific energy control procxxiures developed for machine#quipment such as,
but not limited to, the loin pulling table, main break conveyor, main chain, loin
pace saddle table, etc. were not adequate because suEcient provisions wwe not
made to insure the translation of these procedures to the non-English spealting
employees. These failures exposed servicing employees to the hazardous rekase
of energy during the time period of April 13,1993 to April 16,1993.
The cited standard provides:
(4) Eneqy co~lptocedrue. (i) Procedures shall be developeloped,
documented and
utilized for the control of potentially hazardous energy when employees are
engaged in the activities covered by this section. (ii) The procedures shall Clearly
and specifically outline the scope, purpose, authorization, rules, and techniques to
be utilized for the control of hazudous energy. .
l l
Discussion
Here the conduct complained of by the Secretary does not establish a violation of
this subsection. This subsection requires the employer to develop a written
1ockoutJtagout procedure. At the hearing the Secretary stipulated Respondent had an
adequate written lockout,/tagout procedure, and that the alleged objectionable conduct
was Respondent’s failwe to communicate its procedure to its workers in Spanish (Tr. 62).
The failure to adequately communicate the procedure, if any, is a train@ issue that
should be raised under the training subsection. In light of the Secreta@ stipulation and
the fhilure of proo& this item is vacated.
Alkgd Violation
0f~1910.1470(5IiJ
. 1, item 2 atleges:
willful citation
29 CER 1910.147(c)(5)(i): Locks, tags, chains, wedges, key blocks, adapter pins, self-
locking fasteners, or other hardware were not provided by the employer for is&ting,
securing or blocking of machines or quipment fronr energy sources:
servicing employee performing cleaning operations on macMeq/quipment such
as, but not limited to, the toin pulling table, main break conveyor, main chain, loin
pace saddle table, etc. was not provided the lo&s rquired to complete energy
isolation on this machinery/equipment exposing these employees to the hazardous
release of energy such as occurred -on April 16 1993 which resulted in an
employee fatality.
The cited standard provides:
8
(5) l%ective ?natG& and hudww~
(i) Locks, tags, chains, wedges, key blocb
adapter pins, self&king fasteners, or other hardware shall be provided by the
employer for isolating securing or blocking of machines or equipment from energy
SOWCCS.
discussion
The uncontradicted evidence establishes the cited violation. Manuel Hemandez
was not issued 8 lock in the month and a half he worked for Des prior to the decedent’s
accident, though he was told he was supposed to lock out equipment when he needed to
reach into the machinery to clean it. Jose Hemandez was never issued a lock Eusebio
Morelos did not receive a lock until he had worked for DCS a month.
Respondent maintains that the statements of the employees on which this citation
is based should not be credited because Hemandez is the brother of the decedent and
party to a civil lawsuit based on the incident in question, and because the statements of
the other two absent witnesses contain information which is contrary, in some respects, to
information contained in earlier statements.
This judge finds the statements in evidellce to be credible. The original employee
statements were translated by a DCS supervisor, Zarate. Zarate was the supervisor on
the cut floor at the time of the accident. OSHA Compliance officer (Co) Frank
Wi,minghamtestified that he had good reason to believe, based on the employees’ body
language, and the discrepancy between the length of their answers and the answers pro-
vided by Zarate, that the original statements were inaccurate pr. 199400). The later
statements of the absent witnesses are generally consistent with the testimony of IBP
employees, who testified that they observed Des employees failing to use lockou@agout
procedures and observed them on the job without loch Moreover, the portions of thost
statements spe&caIly relevant
. to this item are uncontradicted by any testimony or cvi-
dence submitted by DCS. DCS produced a single list of emplqees who received Socksin
December 1992 (Exh. R-27); neither M. Hemandez, J. Hemandez, nor Morales are
listed. DCS produced no evidence that any locks were issued after December, 1992,
though its work;force appears to consist largely of temporary or transient laborers.
The cited violation has been estiblished and will be affirmed,
9
rhlleged~olatfonofJZ1910.147~~(~
willfill citation 1, item 3 alleges:
29 CFR 1910.147(c)(7)(i): The employer did not provide adequate train@ to ensure that
the purpose and function of the energy control program was understood by employees:
Seticing employee who performs cleaning operations on machinery and eq@p-
ment such as, but not limited to, the loin pulling table, main break conveyor, main
chain, loin pace saddle table, etc, training was not adequate in the speci6c
knowledge and skills required for the safe application, use and removal of energy
controls, thereby exposing the employee to the hazardous release of energy such
as occurred on April 16,1993 which resulted in an employee fWlity.
The cited standard provides:
(7) ZM&zg and communication. (i) The employer shall provide training to ensure
that the purpose and function of the energy confrof program are understood ,by
employees and that the knowledge and skills required for the safe application,
usage, and removal of the energy controls are acquired by employees. The
training shall include the following:
(A) Each authorized employee shall receive training in the reqnition of the
type and magnitude of the energy available in’the workplace, and the methods
and means necessary for energy isolation and eontrtroL
(B) Each affected employee shall be instructed in the purpose and use of the
energy control procedure.
(C) All other employees whose work operations are or may be in an area where
. energy control procedures may be utilized, shall be instructed about the proce
dure, and about the prohibition relating to attempts to restart or n-energize
machines or equipment which are locked out or tagged out.
piscussion~
The testimony of both Des and IBP employees establishes that DCS’
lockout/&gout program, though adequate as written, was not adequately communicated
to DCS employees, ic, they were not adequately trained. M. Hemandez stated that he
was told to lock out the equipment he was assigned to clean, but was not shown huw to
do it, did not receive the lock he needed to do it, and was shown how to run a rag
through the machine while it continued to run. Luna, J. Hemand- More@ ID-
Ortiz all testified that they did not receive formal training on locking out the equipment
they were assigned to clean, did not lock it out, and only shut it off to clean it. Iuna, J.
10
Hemandez, Morelos, Cortez and Ortiz all stated that Zar&, their supenisor, was awam
of the practice and condonedit. Brabec, Vela, Simmons and Jarchow all substantiate the
prevalence of lockoutftagout violations by Des workers. Even Schacher admitted he
suspected the practice, though he did not personally observe it.
The evidence establishes Des did not make adequate efforts to train its
employees to ensure that they understood the purpose and functionof the kxkou@guut
program. Despite lockout/tagout rules to the contrary, it was the common practice of
DCS employees to climb upon and reach into the equipment they were cleaning while it
cmtinued to run. Moreover, the record shows that the practice was known to DCS
supervisory personnel and had their tacit approval Despite the prev&nce uf the
practice, no disciplinary action was ever taken against an employee except where a viola-
tion resulted in an accident report being filed. Respondent’s training, such as it e&ted,
was undermined and rendered valueless by local management’s tacit approval of wide-
spread non-compliance with the rules.
Citation 1, item 3 is affirmed.
Akmd Violation
ofJcl910.147~dMl~
Wilhl citation 1, item 4 alleges:
29 CFR 1910.147(d)(l): The authorized employee did not have knowledge of the type
and magnitudeof the energy,the hazardsof the energy to be controlled, and the method
or means to control the energy before the authorized or &f&ted employee tumed off the
machine or equipment in preparation for the shutdown.
servicing employee performing cleaning operations on machinery and equipment
such as, but not limited tq the loin pulling table, main break comeyor, main
chain, loin pace saddle table, etc lacked hmwhige of the type or hazards od the
energy to be controlled as indicated by the employees use of start/stop buttons
and emergency shutoff cables in place of lockout and tagout for the conti of
hazardous enerm.
The cited standard provides:
(d) AppliWibn of wnml. . (1) I3epumhn jib shutdown Before an authorhi
l
or tibcted employeeturns off a machine or equipment,the authorizedempfoyfc
shall have knowledge of the type and magnitude of the energy, the hazards of the
energy to be controlled, and the method or means to control the enerm.
11
Item 4 alleges a failure to provide adequate train@ to authorized employees,as
does item 3. Training which properly addr- the recognition of energy cuntrol hazards
and the methods and means of eliminating those ticis would abate both violations.
Items 3 and 4 are duplicative in that they are based on a single court of conduct by
Respondent, and require the same abatement conduct. w I: A. Jam &?asbu&m Ca,
15 BNA OSHC 2201, 1993 CCH OSIiD f29,964 (No. 87-2059, 1993). Item 4 is, there+
for% vacated
Aked Violation
of81910.147~dM3~
WilM citation 1, item 5 alleges:
29 CFR 1910.147(d)(3): All energy isolating devices that were needed to control the
energy to the machine of equipment was not physically located and operated in such a
rnmer as to isolate the machine or equipment Tom the energy source.
Servicing employee performing cleaning operations on machinery and equipment
such as, but not limited to, the loin pulling table, main break conveyor, main
chain, loin pace saddle table, etc. did not locate the energy isolating devices and
operate them as to eliminate the hazar& of the unexpected start up or the
hazardous release of energy which occurred on April 1% 1993 resulting in a
fatality.
The cited standard states:
(3) Machine or equ&mt isolation All energy isolating devices that are needed
to contiol the energy to the machine or equipment shall be phyically located and
operated in such a manner as to isolate the machine or equipment dram the
energy source(s). . .
piscussion
It is undisputed that on April 16,1993, the loin saddle table was not turned off or
locked out when S. Hemandez crawled under it, resulting in his death.
DCS raises the affirmative defense of unprpreventableemployee misconduct. ‘Ihe.
Commissionhas held that “[ijn order to establish an unpreventable employee misconduct
defense, the employer must establish that the violative conduct on the part of an
employeewas a departurefrom a uniformlyand effktivelycommunicatedand.enforced
0
work rule.” Mossa ConrrrucftonCo. 15 BNA OSHC MB, 1414, 1991 CCH OSHD
129,54& p. 39,905 (No. 894027, 1991). As discus& abavle, DCS’ lockout/tagout pr+
gram was not enfbced at its Madison worksite, and so the employee misconduct defense
is not availabIe to Des. Citation 1, item 5 is afErmed.
willlbi chaticterizatim
The record establishes that DCS’ supervisory personnel routiryly ignored and
thereby encouraged a pattern of employee noncompliance with Des’ lockout/tagout
hb were not issued in a timely manner to new employees making their cornpI&
ante with lockout/tagout procedures impos&le.
Despiterepeated injuries and warnings Tom IBP personnel, neither Schacher nor
Zarate, the supervisorypersonnelat the Ma&sunworksite,made any effort to insure .
compliance with the lockout/tagout program on the cut floor. Schacher admitted he
suspected employees of bypassing the lockout rule, but made no efforts to halt the prac-
tice. - Zarate was aware that employ-’ did not bring their locks with them to the cut
floor, but did not requirethem to do soI In spite of the widespreadpattern of noncom-
pliance with lockout/tagout procedures, Des never formally reprimandedemployees
unless violation of the rules resulted in an injury, mering reporting requirements
requiring disclosure of the cause of injury. Only injured employees received
lockout/tagout reprimands.
The Commission has held that “[t]he employer is responsible for the wil&il
nature of its syervisors’ actions to the same extent that the employer is fespoI1sl‘bletTor
their knowledge of violative conditions.” SecretaryofLabor v. Tompa Shiia& Iie 15
BNA OSHC 1533, 1539, 1991 CCH OSHD t29,617, p. 4QlO& (Nm 86360,’ 86469,
1992). DCS on site management had actual knowledge that its employees routinely and
repeatedly violated lockout procedures. They condoned this conduct to such an extent so
as to have actively encouraged it. On occasion, such as when locks were not issued, man-
agement actually prevented compliance. The violations were properly characterized as
.
?WiIlfd.*
13
DCS is a rSrge employer with 1,100 total emplayees.. It w cited twice be- in
October 1990, fm OSHA violations, including violations of the lockout/tagout standard,
The gravity of the violation could not have been greater, as evidenced by the fatality.
Based on the sis of the employer, the willful nature of the violation, and the gravity of
the cited hazard, I find that assessment of the proposed penalty of $70,000.00 for each
violation is appropriate.
Findings
ofFactand Conclusions
ofhw
All findings of fact and conclusions of law relevant and necessary to a determina-
tion of the contested issues have been found specially and appear in the decision above.
See Rule 52(a) of the Federal Rules of Civil Procedure.
.ORDER
1) Willful citation 1, item 1, alleging violation of ~1910.147(c)(4)(ii) is VACATED.
2) citation 1, item 5 alleging violation of @1910.147(c)(S)(i)is AFHRMED,
Willful
. and a penalty of $70,000.00 is ASSESSED.
3) citation 1, item 3, alleging violation of ~1910.147(c)o(i) is AFFIRMED,
WilIfbl
and ‘a penalty of $70,000.00 is ASSESSED.
4) WillM citation 1, item 4, alleging violation of ~1910.147(d)(i) is VACATED. .
9 citation 1, item 5, alleging violation of #1910.147(d)(3) is AFFIRMED, and
Willfhl
a penalty of $70,000.00 is ASSESSED.
Dated: April 7, 1995
14
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