Gestamp Alabama, LLC

Plain-English summary

Gestamp Alabama manufactured auto parts with a 400-ton mechanical blanking press at its McCalla facility. Operators periodically entered a fenced scrap area to remove rejected metal, normally using a captive-key system that powered down the press before opening the gate. OSHA observed an operator enter while the gate latch was broken and cited the company for not using lockout/tagout procedures. Although scrap removal was a cleaning and maintenance activity, the judge found insufficient proof that the operator could foreseeably contact the exposed coupling on an otherwise guarded conveyor system. Because the Secretary did not establish that unexpected energization could cause injury or that the employee entered the zone of danger, the lockout item was vacated. A separate extension-cord item had been resolved by partial settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.303(c)(3)(i)
• Outcome: Lockout/tagout item vacated; extension-cord item resolved separately by settlement.
• Key point: The lockout/tagout standard requires more than theoretical exposure; the Secretary must prove that unexpected energization could injure an employee during the cited activity.

Full text (OSHRC public release)

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

Secretary of Labor,
Complainant,

           v.                                                   OSHRC Docket No. 15-0013

Gestamp Alabama, LLC,
Respondent.

Appearances:

   LaTasha T. Thomas, Esquire, U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee
           For the Secretary

   John J. Coleman, III, Esquire, BURR FORMAN, LLP, Birmingham, Alabama
            For the Respondent

BEFORE: Administrative Law Judge Heather A. Joys

                                  DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678
(2014) (the Act). Gestamp Alabama, LLC (hereinafter Gestamp) is an auto parts manufacturer.
On August 5 - 6, 2014, Occupational Safety and Health Administration Compliance Officer
(CSHO) Donald Bar Kirby conducted an inspection of Gestamp at 7000 Jefferson Metro
Parkway in McCalla, Alabama. Based upon CSHO Kirby’s inspection, the Secretary of Labor,
on December 3, 2014, issued a Citation and Notification of Penalty with two items to Gestamp
alleging serious violations of 29 C.F.R. §§ 1910.147(c)(4)(i) and 1910.303(c)(3)(i) for failure to
utilize lock out/tag out procedures and for failure to properly splice an extension cord,
respectively. The Secretary proposed $9,550.00 for the Citation. Gestamp timely contested the
Citation. At hearing the parties stipulated to resolution of Item 2 of the Citation alleging a
violation of 29 C.F.R. 1910.303(c)(3)(i).1 Only Item 1 of the Citation is at issue.
At the hearing, the Secretary moved to amend Item 1 of the Citation to correct the date in
the alleged violation description from October 5, 2014, to August 5, 2014. Gestamp did not
object and the Court granted the motion.
A hearing was held in this matter on March 4, 2015, in Birmingham, Alabama. The
proceedings were conducted pursuant to the Commission’s Simplified Proceedings. 29 C.F.R. §§
2200.200-211. Gestamp submitted a post-hearing brief to the Court at the close of the hearing.
The Secretary filed his post-hearing brief on March 27, 2015. With leave of the Court, Gestamp
filed a Reply Brief on April 10, 2015.
For the reasons that follow, Item 1 is vacated.

                                              Jurisdiction
    At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the

Commission pursuant to §10(c) of the Act (Tr. 9). Gestamp also admits that at all times relevant
to this action, it was an employer engaged in a business affecting interstate commerce within the
meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (See Prehearing Order of March 2, 2015).

                                              Background
    The inspection in this matter was initiated upon receipt of a complaint by the

Birmingham OSHA Area Office alleging lack of lock out/tag out procedures and fall hazards at
Gestamp’s McCalla facility (Tr. 12-13). The inspection was assigned to CSHO Kirby who
began his inspection by visiting Gestamp’s facility on August 5, 2014 (Tr. 12-14). Upon arriving
at the facility, CSHO Kirby met with Richard Metcalf, the plant operations manager, Will Smith,
the human resources manager, and the company safety manager (Tr. 14).
CSHO Kirby conducted a walk around inspection of the facility accompanied by various
management officials (Tr. 14). Included in the inspection was the “blanking press” that was the
subject of the complaint. While inspecting the blanking press, CSHO Kirby observed an
employee open a gate to allow entry into the area in which scrap material is ejected in order to
remove this scrap material. CSHO Kirby testified he observed the employee had not locked or

1
By separate Order, the Court approved the parties’ fully executed Stipulation and Partial Settlement resolving Item
2 of the Citation.
2
tagged out the press when doing so (Tr. 14). CHSO Kirby determined the employee was
exposed to a rotating shaft during this operation (Tr. 14-19). CSHO Kirby photographed the
operation, but did not enter the area (Tr. 16; Exh. C-3A). At that time, he notified the
employee’s supervisor who was in the area and stopped the activity (Tr. 19; Exh. C-3A).
There is little dispute regarding the operation of the blanking press at issue. The press is
a Schuler 400-ton mechanical power press (Tr. 73). The press takes rolled coils of steel and cuts
it into “blanks” used elsewhere in the facility (Tr. 21). While the press is operating, the press
operator stands at a control panel, protected from the press by a door with windows (Exh. R-4A).
The press operator inputs a program name and number, depending upon the size of blank needed
(Tr. 75). He then feeds a coil of steel across a table to the press feeder (Tr. 75). The press
operator next “inches” the steel into the press to make the cut (Tr. 75). A die cuts the steel into a
blank of the prescribed size (Tr. 76). Once the blank is cut, the operator decides whether to send
it to the “stacker table” (see Exh. R-4C) if it meets the specifications, or to the scrap area (see
Exh. R-4B) if it does not (Tr. 21-22, 74-79). The blank is sent to one or the other area by a
system of magnetic conveyors (Tr. 22, 74).
Upon occasion, a press operator must clear scrap material from the scrap area (Tr. 23). It
is undisputed the press operator clears scrap five to ten times in the course of a shift (Tr. 30, 90).
In order to remove scrap that has built up, the press operator powers down the press by pushing
a button at the control panel depicted in Exhibit R-4A (Tr. 44, 67, 80). He then must walk
approximately 20 yards around the press to pull a key (Tr. 44, 67, 81). According to Will
Roberts, a press operator with 10 years of experience with Gestamp, this causes “some safety
fingers” to come down (Tr. 67). The operator then takes that key to the gate blocking access to
the scrap area. This gate is a 6-foot tall metal fence with a latch that can only be opened by
inserting this key (Tr. 19-20, 44, 68-70, 81; Exh. C-3A). The latch is depicted in Exhibit C-3B.
The key retrieved by the press operator is labeled G. After that key is inserted, the press operator
removes the key labeled 4Z to open the gate (Tr. 45-46, 67, 70, 81). Plant Operations Manager
Metcalf referred to this as a “double redundant check system.” (Tr. 82). CSHO Kirby referred to
the system as a “captive key system.” (Tr. 19).2

2
Gestamp has written lockout procedures for the Schuler press (Exh. R-2). These procedures call for verification of
deactivation of electric, air, and water energy sources in six locations; placing of gravity controlling safety blocks;
3
 According to CSHO Kirby, the employee had not used the captive key system on the
latch to open the gate on the day of his inspection (Tr. 21). Rather, the employee had been able
to enter the scarp area without either powering down the press or pulling the G key because the
latch on the gate was broken (Tr. 30). CSHO Kirby testified the employee informed him the gate
had been broken for the preceding two months (Tr. 30). CSHO Kirby also observed a coupling
to a shaft above the employee’s head was rotating while he was removing the scrap blank (Tr.
17). CSHO Kirby testified the shaft was partially guarded but the coupling at the end was
exposed. Otherwise, the conveyor system is guarded (Tr. 55). CSHO Kirby estimated the
coupling was located 5 feet from the floor (Tr. 17). Metcalf testified the shaft and coupling sit 1
foot back from where the press operator would stand (Tr. 83). Roberts testified no body part
comes near this coupling during the scrap removal process (Tr. 67).3
Based upon his observation of the press operator engaged in removing scrap without first
powering down the press, CSHO Kirby recommended a citation be issued alleging a violation of
29 C.F.R. § 1910.147(c)(4)(i) for failure to utilize energy control procedures during scrap
clearing operations. Gestamp timely contested the citation, alleging the cited standard does not
apply to the operation at issue.

                                              The Citation

     The Secretary has the burden of establishing the employer violated the cited standard. To

prove a violation of an OSHA standard, the Secretary must show by a preponderance of the
evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of
the cited standard; (3) employees had access to the violative condition; and (4) the cited
employer either knew or could have known with the exercise of reasonable diligence of the
violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).
The standard at 29 C.F.R. § 1910.147(c)(4)(i) requires an employer to develop, document
and utilize procedures “for the control of potentially hazardous energy when employees are

and ensuring all motion has stopped (Exh. R-2, p. 13). Gestamp does not dispute these procedures were not
followed by press operators during the scrap clearing process, arguing they are not applicable because they apply to
maintenance operations not at issue in this proceeding. The Secretary did not allege Gestamp should have followed
these procedures.
3
The undersigned found Roberts to be a credible witness. He gave straightforward answers to all questions.
Nothing in his demeanor suggested bias or lack of veracity.
4
engaged in the activities covered by this section.” In Item 1, Citation 1, as amended, the
Secretary alleges Gestamp violated the standard as follows: “On or about 8/05/14 – Press Line,
procedures were not utilized by employees clearing scrap drops on a Schuler 400 ton blanking
press.” The Secretary contends Gestamp violated the standard when its employee was allowed
to bypass the captive key system, thereby exposing the employee to the rotating shaft. Gestamp
contends the standard does not apply.

                             Applicability of the Standard

   The standards at 29 C.F.R. § 1910.147 apply to “[s]ervicing and maintenance of

machines and equipment in which the unexpected energization or start up of the machines or
equipment, or release of stored energy could cause injury to employees…” 29 C.F.R. §
1910.147(a)(i). Section 1910.147(b) defines servicing and/or maintenance 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.

(Emphasis added.) Here, the press operator must clear scrap material from the scrap area on
occasion. The Court determines clearing scrap material is a cleaning activity, to which §
1910.147(c)(4)(i) applies because it constitutes maintenance on the blanking press. This does
not end the inquiry regarding applicability of the standard, however.
In General Motors Corp., Delco Chassis Div., 17 BNA OSHC 1217, 1218 (Nos. 91-
2973, 91-3116 & 91-3117, 1995), the Commission held applicability of the standard is
predicated on a showing “that unexpected energizing, start up or release of stored energy could
occur and cause injury.” Although the Commission focused on the requirement that energization
be “unexpected,” both the decision and the plain language of the standard make clear this
energization must pose a risk of harm to employees. Id. at 1220. Recently, the D.C. Circuit,
affirming the Commission’s decision in Otis Elevator Co., 24 BNA OSHC 1081, 1084 (No. 09-
1278, 2013), recognized two prongs to establishing applicability of the standard. Otis Elevator
Co., v. Seceretary of Labor, 762 F.3d 116 (D.C.Cir. 2014). First, that there be the potential for
the unexpected energization, start up or release of stored energy. Second, this unexpected
5
energization, start up or release of stored energy “could cause injury to employees.” Id. at 121.
The cited standard only applies if the record establishes an employee is exposed to the zone of
danger created by the unexpected energization of the machine or equipment.
In order to establish the cited standard applies, therefore, the Secretary must show a
reasonable person could foresee an employee could enter the zone of danger while engaged in
the cited maintenance activity, which in this case is cleaning up the scrap material. RGM Constr.
Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995) (“The zone of danger is determined by the
hazard presented by the violative condition, and is normally that area surrounding the violative
condition that presents the danger to employees which the standard is intended to prevent.”),
Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (“[T]he
inquiry is not simply into whether exposure is theoretically possible. Rather, the question is
whether employee entry into the danger zone is reasonably predictable.”)
The court finds the preponderance of the evidence fails to establish a risk of harm to the
press operator during the scrap clearing process. The Secretary has failed to meet his burden to
establish the standard applies to the cited conditions.
Although the Citation is worded broadly, CSHO Kirby described the hazard as an
exposed coupling at the end of an otherwise guarded rotating shaft. CSHO Kirby’s testimony
failed to elucidate how a press operator would be exposed to this coupling. He testified:
Q: The part of the machine that was hazardous to the employee was the fact he
was under the conveyor with rotating shafts and couplings above him.
Q: When you say he was under it, could you explain?
A: He stepped into the framework of the equipment under the conveyor itself to
receive – to remove the scarp, so he ducked under to grab to it.
Q: And how would he be exposed to the hazard, being ducked under?
A: When he stood up or if for some reason his body moved into that area.
(Tr. 37).
CSHO Kirby’s testimony does not sufficiently describe how an employee could come
into contact with the coupling for the court to find a reasonable person could foresee a press
operator could enter the zone of danger while engaged in the scrap clearing operation. The shaft
was estimated to be 1 foot in front of where the employee stood and was an estimated 5 feet off
the ground. CSHO Kirby took no measurements of the distance of the press operator from the
6
shaft and never entered the area in which the press operator was working. Thus, he could not
have observed whether contact with the coupling, or any other part of the conveyor,4 was
foreseeable or even possible. His testimony regarding the potential for contact with the coupling
is speculative. Nor does the Secretary’s photographic evidence provide conclusive proof the
press operator was, or could be, anywhere near any moving parts. In contrast, Roberts who
worked in the area clearing scrap, testified no body part comes in proximity to the shaft during
the scrap clearing operation. The Secretary has failed to establish the scrap clearing operation
was an operation in which the unexpected energization of the press could cause injury to
employees.5 The Secretary has failed to meet his burden to establish the cited standard applies.
Item 1 of Citation 1 is vacated.

                   FINDINGS OF FACT AND CONCLUSIONS OF LAW

     The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                                  ORDER

     Based upon the foregoing decision, it is ORDERED that:
     Item 1, Citation 1, alleging a violation of 29 C.F.R. § 1910.147(c)(4)(i) is hereby vacated.



                                                                      /s/ Heather Joys
                                                                     __________________

Date: April 16, 2015 HEATHER A. JOYS
Administrative Law Judge
Atlanta, Georgia

4
The court notes the quoted passage is the only time CSHO Kirby described the hazard as part of the conveyor other
than the unguarded coupling. CSHO Kirby’s inconsistent testimony on the hazard addressed in the Citation further
undermines the Secretary’s evidence.
5
The same analysis would apply equally to the Secretary’s burden to establish employee exposure to a hazard.
Therefore, even assuming applicability of the cited standard to the operation at issue, the court would vacate the
citation on the ground the Secretary failed to establish employee exposure to a hazard.
7