Ohio Cellular Products Corp.

Plain-English summary

Ohio Cellular Products Corp. molds polyethylene foam sports and automotive padding at a plant in Wauseon, Ohio, using large rotating "Rotocast" ovens. In October 1996 a relief operator was fatally injured when her clothing caught on an oven's rotating mold arm while she unloaded foam. OSHA cited the company, and the only genuinely contested item was whether the operators were adequately guarded from the rotating arm (29 C.F.R. § 1910.212(a)(1)), with a lockout standard pleaded in the alternative. The company relied on a hand brake to stop the arm, but Judge Ken S. Welsch found the brake was hard to set, sometimes slipped, and left the operator with no backup guard, so the guarding violation was affirmed. The judge rejected the alternative lockout theory because loading and unloading foam is normal production, not servicing or maintenance. The guarding item was classified serious with a $2,500 penalty; the other items were affirmed on the company's withdrawal of contest, and one item was vacated under a partial settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1) (contested); §§ 1910.23(c)(1), 1910.178(p)(1), 1910.215(a)(4), 1910.215(b)(9), 1910.22(d)(1), and 1910.178(q)(7) (affirmed on withdrawal)
• Outcome: Machine-guarding item 4 affirmed as serious, $2,500 penalty; alternative lockout theory (§ 1910.147(c)(4)(i)) vacated as inapplicable; item 2 (§ 1910.36(b)(4)) vacated under settlement; remaining items affirmed on withdrawal
• Key point: A hand brake that depends on being fully and correctly engaged is not a substitute for a machine guard, because guarding must be provided by a device and cannot rely on operator skill or attentiveness.

Full text (OSHRC public release)

SECRETARY OF LABOR,
      Complainant,

                  v.                            :          OSHRC Docket No. 97-523
                                                :
OHIO CELLULAR PRODUCTS CORP.,                   :                  (EZ)
          Respondent.                           :
                                                    :

Appearances:

          Heather Joys, Esquire                                        Scott T. Stirling, Esquire
             U. S. Department of Labor                                    DeNune and Killam
             Office of the Solicitor                                      Sylvania, Ohio
             Cleveland, Ohio                                                    For Respondent
                  For Complainant

Before:       Administrative Law Judge Ken S. Welsch

                                         DECISION AND ORDER

          Ohio Cellular Products Corporation (OCP) manufactures polyethylene foam products for
use in sports equipment and automobiles at a plant in Wauseon, Ohio. The products include knee
pads, hip pads, and kick boxing helmets. To mold the foam used in these products, OCP uses two
special ovens referred to as Rotocast #1 and #2.
          On October 9, 1996, a relief operator on the Rotocast #2 was fatally injured when her
clothing was caught on the oven’s rotating arm while she was removing foam from the molds
clamped to the arm (Exh. C-11). As a result of an inspection by the Occupational Safety and
Health Administration (OSHA), OCP received serious and “other” than serious citations alleging
violations of various safety standards. OCP timely contested the citations.
          The parties stipulate to coverage and jurisdiction. OCP withdraws its contest to all
violations except the alleged serious violations of the blocked exit standard at §1910.36(b)(4)
(item 2) and the machine guarding standard at §1910.212(a)(1) (item 4) (E-Z Trial Prehearing
Conf. Order; Tr. 3). The parties’ partial stipulation and settlement agreement vacates item 2, the
alleged violation of §1910.36(b)(4) (Tr. 5).
          On July 11, 1997, a hearing was held in Toledo, Ohio. The case was assigned to E-Z trial
proceedings1 in accordance with 29 C.F.R.§ 2200.200, et seq. The violation (item 4) remaining in
dispute alleges that OCP failed to provide machine guarding (§1910.212(a)(1)) or, in the
alternative, failed to properly lockout the Rotocast oven (§1910.147(c)(4)(i)).2 The citation
states that employees were exposed to the “hazard of being struck by, caught in or between the
mold arm when it rotated.”          OCP contends that the operators of the Rotocast ovens are not
exposed to the rotating mold arms because a hinged gate blocks the area and a brake, when fully
engaged, prevents the mold arm from rotating. However, these protections are not sufficient to
guard the operator from the rotation of the mold arm. A violation is therefore affirmed.

                                                    Background

         The Rotocast oven, manufactured in the 1950's, is a unique large rotational molding
machine designed for the production of molded products from polyethylene foam. Very few
Rotocasts still exist, and parts are impossible to find (Tr. 121). OCP has two Rotocasts which
operate the same (Tr. 21). The Rotocast consists of three separate stations: the loading and
unloading area, the heat chamber, and the cooling area (Exh. C-3). The cycling time through the
three stations is preset depending on the particular product. The time cycle at each station varies
from eight to twelve minutes. For example, hip pads take eight minutes at each station,
thereby taking a total of twenty-five minutes to complete the molding cycle (Tr. 32-33).

         1

          Effective July 31, 1997, the eligibility criteria for E-Z trial was amended. This case no longer qualifies for
E-Z trial because it resulted from a fatality inspection. 62 F.R. 35961 (July 3, 1997).

         2
           The Secretary’s motion to plead, in the alternative, a violation of §1910.147(c)(4)(i) was granted on
July 2, 1997.
        There are three separate rotating mold arms capable of holding different size molds (Exhs.
C-1, C-6). The polyethylene foam is placed in the molds. Different size molds are used
depending on the particular product. For small products such as knee pads, there may be eight
molds clamped to the arm. Larger products, such as hip pads, may only have one mold clamped
to the arm. While the operator is loading and unloading the molds clamped to one arm, the other
two mold arms are continuing to rotate in the heating chamber and cooling area (Tr. 44). The
mold arms rotate from 8 to 64 r.p.m. (Exh. C-3). The mold arms move on a carousel through the
three stations.
        After loading foam into the molds attached to an arm, the molding cycle is started. First,
the rotating arm moves up from the loading area into the heat chamber where the molds are
heated to a preset temperature. Simultaneously, the other mold arms are moving to their next
stations. When the heat cycle is completed, the mold arm moves to the back of the machine into
the cooling chamber where water is sprayed on the molds to cool them to room temperature.
Once the cooling cycle is completed, the mold arm rotates to the front of the oven where the foam
is unloaded from the molds and more foam is then loaded into the molds to restart the cycle (Exh.
C-3, R-1; Tr. 88, 114-115).
        The operator works in front of the Rotocast at the loading and unloading areas. While the
mold arm is moving to the next station, a large mesh gate protects the operator from the rotating
mold arm. The gate is hinged and is approximately 8 feet high and 8 feet wide (Exh. C-6; Tr. 30).
If the gate is opened, the mold arms stop moving to their next stations. However, unless the
brake lever is fully engaged, the mold arm continues to rotate (Tr. 57). During the loading and
unloading of the molds, the oven’s electric power is not turned off and the mold arms continue to
rotate in the heating chamber and cooling area (Tr. 22, 39).
        To prevent the mold arm from rotating while the operator is loading and unloading the
molds, there are separate brake levers for each arm (Tr. 36). The brake levers are located
adjacent to the hinged gate (Tr. 18). To set the brake lever, the operator lifts the lever’s black
knob with an attached spring-loaded pin. The spring holds the pin into a 3/8-inch hole located in
the drive position and the brake position. The operator moves the lever from the drive position
down to the brake position and releases the lever to set the pin (Tr. 45, 137-138). If the pin is
properly set in the brake position, the mold arm stops rotating and the operator is allowed to load
and unload the molds. According to the Rotocast’s operating instructions, the operator is
cautioned that “the pin must be fully engaged with the lever in the “down” position to insure that
arm rotation does not occur while loading and unloading” (Exh. C-3, p. 13). Once the brake is
set, the operator lifts the hinged gate which simultaneously slides a mesh gate in front of the brake
(Tr. 45). The operator enters the area to load and unload the molds (Exh. R-1).
       The effectiveness of the brake lever to prevent rotation of the mold arm is disputed. Two
employees testified that they have problems with the brake holding. They stated that they
observed the brake lever slip unexpectedly, and the arm began rotating. The problems with the
brake were reported to their supervisor, Barbara Wesley, and the brake was repaired (Tr. 22, 39).
Other employees told OSHA during the inspection that the brake repeatedly malfunctioned (Exhs.
C-8, C-9, C-10, Tr. 67-70).
       Francisco Ramirez, a regular operator of Rotocast #2 since January 1994, testified that he
never experienced problems with the Rotocast (Tr. 95-96). However, Ramirez stated that “it’s
kind of hard to put the brake on, but myself, I never had any problems with that oven or the other
oven. Only that it’s kind of hard to set it” (Tr. 96). Ramirez told OSHA during the inspection
that “sometimes the pin was hard to get into place and that it would slip out of the hole” (Tr. 72).
       Barbara Wesley, supervisor of the Rotocast area, testified she also has no problem with
the brake pin “popping out.” She stated that if the pin was fully engaged, it has not slipped out
unexpectedly causing the mold arm to rotate (Tr. 99). However, she was aware that sometimes
the brake dragged and the arm continued to rotate slowly. She stated that the dragging was
corrected by normal maintenance (Tr. 103, 106). Also, she stated that the pin sometimes was not
completely set. In her statement to OSHA, Wesley stated that she complained several times about
the brake, and it was not repaired (Exh. C-7). She explained that the brake was difficult to use
but that it was not faulty. She stated that parts were repaired and not replaced because of the lack
of available new parts (Tr. 100-101).
       Michael Rogers, a mechanical engineer hired by OCP to analyze the Rotocast oven after
the accident, testified that he was able to fully engage the brake without a problem (Tr. 139). He
found that the 3/8-inch hole used to set the pin was more than adequate (Tr. 138). He noted
some wear on the steel plate between the brake and drive holes, but he did not consider it a
problem (Tr. 138-139). He found some wobble in the gear reduction unit which tended to force
the brake lever into the brake position or drive position. If the pin was not engaged in the brake
position, the lever might return to the drive position (Tr. 140-141). Even in the intermediate
position between the brake position and drive position, the arm did not stop rotating (Tr. 143).
Rogers concludes that the guards in place on the Rotocast are sufficient to safeguard the operator
from the oven’s point of operation (Tr. 142). He agrees that except for the brake levers, there are
no safeguards preventing the mold arm from rotating. The effectiveness of the brake depends on
its proper functioning and being fully engaged (Tr. 142).

                                                  Discussion

        In order to establish a violation of a safety standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies to the alleged condition; (2) the
terms of the standard were not complied with; (3) employees were exposed to or had access to
the violative condition; and (4) the employer knew or could have known of the violative condition
with the exercise of reasonable diligence. Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC
1218, 1221-22, 1991-93 CCH OSHD ¶ 29,442, p. 39,678 (No. 88-821, 1991). The Secretary has
the burden of proof.
        There is no dispute that operators of the Rotocast work directly at the mold arm while
loading and unloading the molds. As noted by OCP, “the Rotocast cannot produce pads unless
the finished products are removed from the molds and replaced with new products”
(Respondent’s Brief, p. 9). OCP also does not dispute that the operator’s only protection from
the rotating mold arm while loading and unloading the molds is the brake3 (Tr. 142, 161). The
brake must be fully engaged to prevent the arm from rotating. OCP agrees that while loading and
unloading the molds, its lockout program is not utilized (Exh. C-2; Tr. 159-160). Further, OCP
also does not dispute that guarding or locking out of the Rotocast while loading and unloading
the molds is economically or technologically feasible (Tr. 23-24). OSHA recommends abatement
by a trip wire or light curtain (Exh. C-12; Tr. 75, 77).

        OCP contends it did not violate the guarding or lockout standards, and it lacked

        3
          There is an emergency stop button at the control panel which turns off the oven. The button, however, is
not accessible to the operator while loading and unloading foam from the molds (Exhs. C-5, C-9; Tr. 119).
knowledge of a violative condition. OCP maintains that the brake is set without a problem, and
the brake prevents the arm from rotating. Also, when the hinged gate to the loading and
unloading area is opened, a mesh guard slides in front of the brake, preventing someone from
inadvertently releasing the brake. OCP’s written lockout program is utilized when its
maintenance man changes the molds used in the Rotocast. A lockout is not done when the
Rotocast operator is loading and unloading the molds since this is part of the normal production
process of the Rotocast.

Alleged Violation of §1910.212(a)(1)

       The citation alleges OCP failed to provide guarding while loading and unloading the molds
“to protect employees from the hazard of being struck by, caught in, or between the mold arm
when it rotated.” The Secretary contends that the operator is exposed to the mold arm rotation.
Section 1910.212(a)(1) requires:
       One or more methods of machine guarding shall be provided to protect the
       operator and other employees in the machine area from hazards such as those
       created by point of operation, ingoing nip points, rotating parts, flying chips and
       sparks. Examples of guarding methods are - barrier guards, two-hand tripping
       devices, electronic safety devices, etc.

        The operation of the Rotocast oven is not in dispute. Section 1910.212(a)(1) requires
guarding of rotating parts. The mold arms continually rotate at speeds of 8 to 64 r.p.m. During
cycling of the mold arms from one station to the next, the operator is protected by the hinged
gate. The gate acts as a barrier guard that adequately protects the operator from the rotating
mold arms. However, while loading or unloading the molds, the hinged gate is raised and the
operator is working directly at the mold arm. The mold arm continues to rotate unless the
operator fully engages the brake lever into the brake position. The operator is protected from the
rotating arm if the brake is properly set and fully engaged. However, there is nothing to ensure
that the brake remains fully engaged (Tr. 124). The operating instructions for the Rotocast warns
that “the pin must be fully engaged with the lever in the down position to insure that arm rotation
does not occur while loading and unloading.” Also, the instruction indicates that proper
adjustment and maintenance is required to insure that the mold arm rotation does not occur while
the hinged gate is not in place (Exh. C-3, pp. 13, 15-16). No safety device prevents or guards the
operator from mold arm rotation should the brake be improperly engaged or otherwise fail.
Proper functioning of the brake is dependent upon it being properly engaged. Furthermore, the
evidence shows that even when engaged properly, the brake could malfunction due to a need for
adjustment or repair.
       The weight of witness testimony, including OCP’s expert witness, shows the difficulty in
properly setting the brake pin into the brake position. The interview statements taken by the
compliance officer are accepted as admissions pursuant to Rule of Evidence 801(d)(2). The
statements are consistent with the trial testimony of employees and establish the difficulty in
engaging the brake.
       Tina Johnson, quality control supervisor, stated that during a three-month period in 1995
while she was working on oven #2, “the break let loose at least 6 times in this time span. One
time the pin was completely in and the arm started turning full speed . . . .” (Exh. C-8). She
testified the pin and hole were worn and would not hold. Supervisor Barbara Wesley stated in her
written interview that she had complained several times that the brake was faulty (Exh. C-7). She
testified that she was aware of complaints about the continued rotation of the mold arm (Tr. 106).
She was aware prior to the accident that the “brake dragged” (Tr. 103,106).
       The guarding standard at §1910.212(a)(1) is intended to eliminate danger from unsafe
operating procedures, poor training, or employee inadvertence. Guarding must be provided by a
“device” and does not allow reliance upon the skill or attentiveness of employees. See American
Luggage Works Inc., 1982 CCH OSHD ¶ 26,072, p. 32,796 (No. 77-893, 1982). As
contemplated by the standard, more than one guard may be required. This is such a circumstance.
The operator, while loading and unloading the molds, is exposed to the rotating mold arm if the
brake is not fully engaged. Unless fully engaged, the mold arm rotates (Tr. 57, 124). The electric
power to the oven is not turned off, and the operator is working directly at the mold arm. The
Rotocast is more than forty years old. OCP acknowledges that new parts are impossible to
obtain. The Secretary recommends trip wires or light curtains. OCP does not dispute feasibility.
       OCP’s argument that it lacked knowledge of the hazard is without merit. When a
supervisory employee has actual or constructive knowledge of the violative conditions,
knowledge is imputed to the employer. Dover Elevator Co., 16 BNA OSHC 1281, 1286, 1993-
95 CCH OSHD 30,148, p. 41,479 (91-862, 1993). An employer is also responsible to know
conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Constr., Inc.,
16 BNA OSHC 1995, 1998, 2000, 1994 CCH OSHD ¶ 30,554 (No 92-1022, 1994). An
employer has a duty to inspect its work area for hazards and is charged with knowledge of
conditions that are detectable through an inspection of the workplace. An employer must make a
reasonable effort to anticipate the particular hazards to which its employees may be exposed in the
course of their scheduled work. Pace Constr. Corp., 14 BNA OSHC 2216, 2221, 1991-93 CCH
OSHD ¶ 29,333, p. 39,431 (No. 86-758, 1991).
       The loading and unloading of the molds is performed directly at the mold arm. The oven
remains energized. The operator’s only protection from the rotating mold arm is a fully engaged
brake. The operator’s exposure to the mold arm is in plain view.
       Prior to the accident, OCP’s supervisor was aware of problems with engaging the brake.
A number of employees complained about the brake. OCP’s maintenance man was repeatedly
asked to repair the brake. Therefore, OCP has constructive knowledge, if not actual knowledge,
of the lack of guarding for the mold arm.
       Accordingly, a violation of §1910.212(a)(1) is affirmed.

Alternative Violation of §1910.147(c)(4)(i)

       The Secretary alleges, in the alternative, that lockout procedures were not developed to
prevent the unexpected rotation of the mold arm on Rotocast oven #2 while loading and
unloading the molds. Section 1910.147(c)(4)(i) requires:
       Procedures shall be developed, documented and utilized for the control of
       potentially hazardous energy when employees are engaged in the activities covered
       by this section.

       The lockout standards cover the servicing and maintenance of machines and equipment in
which the unexpected energizing or start-up of the machine could cause injury to employees.
“Servicing and/or maintenance” includes installing, setting up, adjusting, and servicing the
machine. Such maintenance activities involve lubricating, cleaning, clearing jams, adjusting, or
changing tools in the machine or equipment. See §1910.147(b).

       There is no dispute that changing or replacing molds clamped to the mold arm is
performed by the maintenance employee pursuant to OCP’s written lockout procedure (Exh. C-
2). There is also no dispute that OCP has an acceptable written lockout program for servicing
and maintenance of the Rotocast ovens. OCP argues, however, that loading or unloading the
molds is not servicing and maintenance work which requires a lockout procedure.
       The court agrees. Loading and unloading of foam is performed by the operator as part of
the normal production operation of the oven. The lockout standards specifically do not apply to
normal production operations. See §1910.147(a)(2). Loading and unloading foam does not
involve servicing or maintaining the oven. Polyethylene foam is part of the product manufactured
by OCP. The loading and unloading of the molds are routine, repetitive, and integral to the use of
the oven. It does not involve changes or adjustments to the oven. “Setting up” is defined as “any
work performed to prepare a machine or equipment to perform its normal production operation.”
§1910.147(b). The loading and unloading of foam is done while the oven is operating and
integral to producing finished foam products. Loading foam into the molds is not performed “to
prepare” the mold for normal operation; it is the normal operation. See Westvaco Corp., 16 BNA
OSHC 1374, 1993 CCH OSHD ¶ 30,201 (No. 90-1341, 1993)(a worker’s adjustment of shaft
heads on the printer to accommodate customers’ specifications is “setting up” or preparing the
printer to perform its normal production operation); Metal Shredders Inc., 15 BNA OSHC 1554,
1991-93 CCH OSHD ¶ 29,642 (No. 90-2273, 1992)(accident occurred during normal operation,
not during service and maintenance).
        Accordingly, an alternative violation of §1910.147(c)(4)(i) is not applicable.

                                       Serious Classification

       In determining whether a violation is serious within § 17(k) of the Occupational Safety
and Health Act (Act), the Secretary must show that OCP knew or should have known, with the
exercise of reasonable diligence, of the presence of the violation and there was a substantial
probability that death or serious physical harm could result from the condition.
       OCP presented no evidence refuting the serious classification. OCP knew the loading and
unloading the molds exposed operators to the rotation of the mold arm. Barbara Wesley, OCP’s
supervisor, was aware of the problems with the brake and complained several times to
maintenance. OCP agrees that the relief operator involved in the accident did not violate its safety
rules and was a competent operator (Exh. C-11; Tr. 103). As demonstrated by the accident,
injury from the rotating mold arms could be death or serious injury.
       Accordingly, violation of §1910.212(a)(1) is serious.

                                              Penalty

       The Act requires “due consideration” in determining an appropriate penalty to the size of
the employer's business, the gravity of the violation, the good faith of the employer, and the
history of previous violations. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-
2059, 1993). The gravity of the violation is the primary element. Trinity Indus., 15 BNA
OSHC 1481, 1483 (No. 88-691, 1992).
       The Secretary proposes a $2,500 penalty. OCP receives credit as a small company with
no serious safety violations in the preceding three years (Tr. 74). The loading and unloading of
the molds is done regularly. Operators and relief operators are exposed to the rotating arms. An
employee was fatally injured when her clothing was caught by the rotating arm. OCP was aware
of the recurring problems with the brake lever.
       A penalty of $2,500 is reasonable.

                                   FINDINGS OF FACT AND
                                   CONCLUSIONS OF LAW

       The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                             ORDER

       Based upon the foregoing decision, it is ORDERED:

SERIOUS CITATION NO. 1
       1.      Item 1, in violation of § 1910.23(c)(1), is affirmed based on OCP’s withdrawal of
contest and a penalty of $750 is assessed.
       2.      Item 2, in violation of §1910.36(b)(4), is vacated based on the Secretary’s
withdrawal.
       3.      Item 3, in violation of §1910.178(p)(1), is affirmed based on OCP’s withdrawal of
contest and a penalty of $750 is assessed.
       4.      Item 4, in violation of §1910.212(a)(1), is affirmed and a penalty of $2,500 is
assessed. The alternative violation of §1910.147(c)(4)(i) is vacated.
       5.      Item 5, in violation of §1910.215(a)(4), is affirmed based on OCP’s withdrawal of
contest and a penalty of $750 is assessed.
       6.      Item 6, in violation of §1910.215(b)(9), is affirmed based on OCP’s withdrawal of
contest and a penalty of $750 is assessed.

“OTHER” THAN SERIOUS CITATION NO. 2

       1.      Item 1, in violation of §1910.22(d)(1), is affirmed based on OCP’s withdrawal of
contest and no penalty is assessed.
       2.      Item 2, in violation of §1910.178(q)(7), is affirmed based on OCP’s withdrawal of
contest and no penalty is assessed.

                                                      KEN S. WELSCH
                                                      Judge
Date: August 25, 1997