Tops Markets, Inc.

Plain-English summary

A bakery employee seriously injured a finger when a roll machine started unexpectedly while he changed a die without unplugging it. Employees also cleared jams from another plugged-in machine that could crush or lacerate their hands. Tops argued that cord-and-plug equipment was exempt from lockout/tagout whenever unplugging could control the hazard and an employee could retain the plug. The Commission held that the exemption applies only when the machine is actually unplugged and the plug is under the servicing employee's exclusive control. Three serious violations involving periodic inspections, training, and energy isolation were affirmed with penalties totaling $5,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(6)(i); 29 C.F.R. § 1910.147(c)(7)(i); 29 C.F.R. § 1910.147(d)(3)
• Outcome: All three serious lockout/tagout items were affirmed with $5,400 in penalties.
• Key point: The cord-and-plug exemption depends on actual unplugging and exclusive control of the plug during servicing, not on the equipment's theoretical ability to be unplugged.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 94-2527
TOPS MARKETS, INC.,
Respondent.

                                  DECISION

Before: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
Tops Markets, Inc., operates a supermarket and specialty bakery in Amherst, New
York. The Occupational Safety and Health Administration (“OSHA”) inspected the bakery
in May of 1994 after a Tops’ employee seriously injured his finger on a Benier Kaiser Roll
machine that started up unexpectedly while he was changing a die. The machine had not
been unplugged. The OSHA inspection also revealed that Tops’ employees did not unplug
a Benier Overhead Proofer machine before unjamming dough from it. The unexpected
energization or start up of this machine could crush, severely bruise, or lacerate the
employees’ fingers or hands.
OSHA contends that Tops violated three lockout/tagout (“LOTO”) standards that
require employers to make periodic evaluations of the LOTO procedures in use in their
plants, to train their employees in the LOTO requirements, and to ensure that all LOTO
devices on their machines are operated or used to isolate the machines from their energy
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sources.1 Tops counters that the two machines were exempt from the LOTO standards
pursuant to an exemption at § 1910.147(a)(2)(iii)(A):
This [LOTO] standard does not apply to . . . [w]ork on cord and plug
connected electric equipment for which exposure to hazards of unexpected
energization or start up of the equipment is controlled by the unplugging of the
equipment from the energy source and by the plug being under the exclusive
control of the employee performing the servicing or maintenance.

   Tops reads the exemption to mean that a cord and plug connected machine is not

covered by the LOTO standards if unplugging it would prevent its unexpected energization
and the employee can retain exclusive control of the plug during his work. Tops does not
read the exemption to hinge on whether the machine is actually unplugged and controlled
during machine servicing and maintenance.
OSHA’s position, however, is that the exemption only applies to machines that are
actually unplugged with the plug under the exclusive control of the servicing and
maintenance employees. Administrative Law Judge Robert A. Yetman found in favor of

1
The pertinent parts of 29 C.F.R. § 1910.147 are:

   (c) General—
   ....
   (6) Periodic inspection. (i) The employer shall conduct a periodic inspection
   of the energy control procedure at least annually to ensure that the procedure
   and the requirements of this standard are being followed.
   ....
   (7) Training and communication. (i) The employer shall provide training to
   ensure that the purpose and function of the energy control program are
   understood by employees and that the knowledge and skills required for the
   safe application, usage, and removal of the energy controls are acquired by
   employees. . . .
   ....
   (d) Application of control.
   ....
   (3) Machine or equipment isolation. All energy isolating devices that are
   needed to control the energy to the machine or equipment shall be physically
   located and operated in such a manner as to isolate the machine or equipment
   from the energy source(s).

3

OSHA and therefore affirmed the three serious citation items. He assessed penalties in the
amounts of $900, $2,250, and $2,250.
II. Analysis
The language of the exemption to the LOTO standard is ambiguous. The Secretary
argues that “[w]ork . . . for which exposure to hazards . . . is controlled by the unplugging”
suggests not only that unplugging be possible but also that it must be done during the work.2
However, the complete wording of the exemption refers to “[w]ork on cord and plug
connected electric equipment for which exposure . . . is controlled by the unplugging”
(emphasis added). As Tops points out, the verb form “is controlled by” more usually refers
to “an examination of an ongoing status” or “a characteristic” that is “unchanging.” This
reading suggests that “is controlled by the unplugging” points to an existing safety feature
of the cord and plug equipment.3
When a standard is ambiguous, we turn to the legislative history. See, e.g., Nooter
Constr. Co., 16 BNA OSHC 1572, 1574, 1993-95 CCH OSHD ¶ 30,345, pp. 41,837-38 (No.
91-237, 1994). The preamble to the Secretary’s LOTO standard plainly states: “OSHA has
decided that the lockout/tagout requirements of the standard will not apply to cord and plug
connected equipment if the equipment is unplugged and the plug is in the exclusive control
of the employee who is performing the servicing or maintenance of that equipment.” 54
Fed.Reg. 36663 (1989) (emphasis added). This shows that the Secretary intended to limit the

2
The Secretary notes that the exemption might implicitly require employers to undertake
some minimal and simple program, training, and inspection duties in order to ensure that
their employees actually unplug the equipment and retain control of the plugs, but if these
two things are accomplished, the employers have none of the more formal and detailed
LOTO program, training and inspection duties.
3
Tops also points out that some cord and plug machines are not controlled by simply
unplugging them, i.e., there are some machines that store energy and that can still operate
after being unplugged. In Tops’ view, this explains the exemption’s language specifying
“cord and plug connected electric equipment for which exposure to hazards of unexpected
energization or start up of the equipment is controlled by the unplugging of the equipment”
(emphasis added).
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exemption’s applicability to situations where the cord and plug equipment is unplugged. As
we have previously stated, we find the preamble to be persuasive evidence of the intent of
the regulation.4 See American Sterilizer Co., 15 BNA OSHC 1476, 1478, 1991-93 CCH
OSHD ¶ 29,575, p. 40,015-16 (No. 86-1179, 1992) (preamble as “best and most authoritative
statement of the Secretary’s legislative intent” for standard susceptible to different
interpretations).
Accordingly, we find the LOTO exemption to be inapplicable to Tops’ operations
because its machines were not unplugged. Thus we affirm the judge’s decision.5
III. Order
The parties have stipulated that, if the exemption is inapplicable, the three citation
items should be affirmed as serious violations and penalties in the amounts of $900, $2,250,

4
Given the clarity with which the Secretary stated this rule in the preamble, Commissioner
Montoya is perplexed that the standard as issued is so open to interpretation.
5
Tops asserts that “it is entirely possible” that the plugged-in machines had safety devices to
prevent or warn of possible start-up, and that the Secretary therefore failed to prove that the
machines presented a hazard of “unexpected” start up. See General Motors Corp., 17 BNA
OSHC 1217, 1993-95 CCH OSHD ¶ 30,793 (No. 91-2973, 1995), aff’d, 89 F.3d 313 (6th
Cir. 1996). We find otherwise, however. One machine actually caused an injury by
unexpectedly starting up while plugged in, and on review Tops does not specifically assert
that there were safety devices on either machine. Moreover, Tops stipulated that “the
unexpected energization or start up” of plugged-in machines “could cause injury to
employees during servicing and maintenance.”
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and $2,250 should be assessed. Accordingly, we affirm the citation items as serious
violations and assess the stipulated penalties.

                                               /s/
                                               Stuart E. Weisberg
                                               Chairman



                                               /s/
                                               Velma Montoya
                                               Commissioner



                                               /s/
                                               Daniel Guttman
                                               Commissioner

Dated: March 3, 1997