U.S. Postal Service d/b/a Lehigh Valley Processing & Distribution Center
Lockout violation reduced to other-than-serious
Apply this to your situation
This order from 2021 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
The U.S. Postal Service repaired a broken conveyor belt within its Automated Package Processing System at a Pennsylvania mail facility. Management directed mechanics to lock out only the affected induction lane so the rest of the system could continue processing mail, despite employee objections that the established machine-specific procedure required a broader shutdown. The judge found that the processing system was one machine for lockout purposes and that the Postal Service violated the requirement to use its established energy-control procedure. Management had actual knowledge because the acting plant manager ordered the alternative method while mechanics continued to object. The violation was not willful because the evidence did not establish conscious disregard or plain indifference, and it was not serious because OSHA did not prove that the resulting injury would probably be death or serious physical harm. The item was affirmed as other-than-serious, and the proposed $99,630 penalty was reduced to $12,675.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.147(d)(2).
- Outcome: Violation affirmed but reclassified from willful to other-than-serious; penalty reduced from $99,630 to $12,675.
- Key point: An employer must use the energy-control procedure established for the machine, even if management believes an improvised alternative is safe and would preserve production.
Full text (OSHRC public release)
U.S. Postal Service d/b/a Lehigh Valley Processing & Distribution Center 17-0419
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v.
OSHRC DOCKET N o. 17-0419
U.S. POSTAL SERVICE, d/b/a Lehigh Valley Processing & Distribution Center,
Respondent .
AMERICAN POSTAL WORKERS UNION, AFL-CIO,
Authorized Employee Representative.
DECISION AND ORDER
APPEARANCES:
For the Complainant:
Jennifer L. Bluer, Esq.
U.S. Department of Labor
Philadelphia, Pennsylvania
For the Respondent:
Mark J. Manta,
Esq.
United States Postal Service
Philadelphia, Pennsylvania
For the Authorized Employee Representative
Jason
R.
Veny, Esq.
Murphy Anderson, PLLC
Washington, D.C.
BEFORE: William S. Coleman
Administrative Law Judge
I. INTRODUCTION
The
United States Postal Service (USPS) operates a mail processing facility
in Lehigh Valley, Pennsylvania,
called
the
“Lehigh Valley Processing
&
Distribution Center”
(Center). A
sprawling
multi-component
machine
called an
APPS
(standing
for “Automated Package Processing
System”)
occupies about 75% of the Center’s floorspace.
(T. 25).
On October 15, 2016, one of the many conveyor belts on the APPS broke
and required repair. Employees
doing the repairs
were trained and experienced in
controlling
hazardous energy
during such repairs
by applying USPS’s APPS-specific procedures
for the control of hazardous energy.
The APPS is configured with multiple energy isolating devices (EIDs) that control electricity. USPS instructed employees performing the
repair to lock out an EID that de-energized
only
the conveyor lane on which the broken conveyor belt was located. Doing
this
made it
possible for
all other components of
the APPS to
run and
to
process mail while
repair work was ongoing.
Under optimal circumstances
the repair
would
have been completed in
about
six
to twelve
hours, but
the
repair was
not completed
until five days after the breakdown. (T. 96, 227, 247, 549). The
repair effort was
slowed
mainly because of problems
in
getting necessary
parts. But also
complicating the repair
effort was
the resistance of
some
maintenance
employees
to management’s instruction to lock out
an
EID that enabled the APPS to continue to process mail during the repair. Those employees
had expressed the
view
that
USPS’s
APPSspecific
energy
control
procedures
specified
locking out a
different EID—one that would
have
effectively rendered
the APPS nonoperational
during repair
work.
Management
decided otherwise,
and
so
the repair was completed by locking out the EID that management had directed.
After the repair was completed,
someone
complained to the
Occupational Safety and Health Administration (OSHA)
about
management’s instruction
on
the
EID to lock out
during the
repair. OSHA
then
conducted
an
inspection and investigation
that resulted in
OSHA issuing to USPS
a one-item citation
alleging
that during the repair
USPS
had
violated
OSHA’s
“control of hazardous energy (lockout/tagout)” (LOTO) standard, codified at 29 C.F.R. § 1910.147. The citation
characterized the
LOTO
violation
as
having been
“willful”
and
proposed
a
penalty of $99,630.
The
gist
of the alleged
LOTO
violation is that
USPS
instructed employees to lock out an EID other than the
EID
that
the
APPS-specific
LOTO procedures
specified
to
be locked out
for the
repair
of
the broken
conveyor
belt.
USPS
timely contested the citation and proposed penalty, bringing the matter before the independent Occupational Safety and Health Review Commission (Commission)
under section 10(c) of the
Occupational Safety and Health Act
of 1970,
29 U.S.C. §§ 651–678
(Act). The Secretary
of Labor (Secretary)
thereafter
filed
his
complaint pursuant to Commission Rule 34(a)
in which he
realleged
the citation and
the
proposed penalty as originally issued.
29 C.F.R. § 2200.34(a).
In addition to characterizing the violation
as “willful”
within the meaning of section 17(a) of the Act,
the complaint
alleged
further
that
the
violation
was also
"serious"
within the meaning of
section
17(k),
in that there was a substantial probability that
death
or
serious physical harm could have resulted from the violative conditions or practices.
29 U.S.C. §§
666(a)
&
(k).
(Complaint ¶ 6).
The
American Postal Workers Union, AFL-CIO
(APWU) ,
elect ed
party status
in the Commission proceedings
as
an
Authorized Employee Representative pursuant to Commission Rule
20(a) . 29 C.F.R. § 2200.20(a) (201 7 ). B y order of the
Commission’s Chief Judge dated June 16, 2017,
APWU’s
party status
in this proceeding
was
formally
recognized .
The matter was
thereafter
assigned to the undersigned administrative law judge,
and an
evidentiary hearing
was conducted
in
Allentown, Pennsylvania, on
June 5 & 6, 2018. Post-hearing briefing was completed on
October
19, 2018. (APWU
opted not to file a post hearing brief.)
The principal issues presented, and the decisions thereon, are as follows:
· Did
the Secretary prove by a preponderance of the evidence that USPS
instructed
employees
to lock out
an
EID
other than the EID
that the APPS-specific LOTO procedures
instructed
to
be locked out, in violation of § 1910.147(d)(2)?
Decision :
Yes.
· Did the Secretary prove by a preponderance of the evidence that
the violation was willful?
Decision : No.
· Did the Secretary prove by a preponderance of the evidence
that
the
established
violative condition
created a
substantial probability
that
death or serious physical harm
could result,
so that the violation was “serious”
within the meaning of section 17(k) of the Act?
Decision : No.
· What is the appropriate penalty for the
proven
other-than-serious violation of the LOTO standard?
Decision : The maximum allowable
penalty is assessed.
For the reasons described below, a penalty of $12,675 is assessed for the
proven
otherthanserious violation of 29 C.F.R. § 1910.147(d)(2).
II. FINDINGS OF FACT
Except where the following findings indicate
the absence or insufficiency of
evidence
to prove
a matter of fact, the following facts were established by at least a preponderance of the evidence:
- The
United States Postal Service
(USPS)
employs employees
in processing U.S. Mail at its
Lehigh Valley Processing
&
Distribution Center (Center)
located
in
Lehigh Valley, Pennsylvania.
Automated Package Processing System (APPS)
1
-
The
Center is
outfitted
with
a n
Automated P ackage
P rocessing
System
(APPS)
for processing
and sorting
mail. The
APPS at the
Center
is one of
74
such machines
that USPS operates
throughout the nation . (Ex.
R-30 at 1). -
The APPS
unloads
mail items ( letters,
magazines,
and
parcels )
onto
an input conveyor,
organize s the
items
into a single layer
on a conveyor ( a process
called
“ singulat ing”) ,
photographs
each item , and sorts
each item . ( Id. ). -
Some
of the 74
APPS
that USPS operates nationally
are
“ dual-sided , ”
but t he APPS at the Center is single-sided. (Ex. R-30 at
1 – 2 ).
D ual-sided APPS
machine
are
capable of
process ing
mail when
one
side is
shut down . (Ex.
C - 1 0 at
16 ; Ex. R-30 at 35 ).
The
Three Subsystems of an
APPS
Machine
- APPS
machines
have
three subsystems , each of which is
modular and scalable to meet a
particular
facility’s capacity
needs
and
floor
configuration . ( Ex. R-30 at 1 & 3 ).
Those
three subsystems
are :
(a)
the F eed, Singulation and Distribution
Subsy s tem
(FSD Subs ystem) ,
(b)
the I nduct ion
Subsystem
(IND Subsystem) , and
(c)
the Sorter Subsystem .
( The broken
belt
that was repair ed in October 2016
wa s
located in
the IND Subsystem.)
The
illustration of the APPS on
page 2 of Exhibit R-30 (labelled Figure 2) is a complete depiction of all three subsystems of a single-sided APPS machine such as the one at the Center.
-
Feed, Singulation and Distribution Subsystem
(FSD Subsystem) . The
FSD Subsystem
consists
of
belts and roller conveyors
that are
arrayed
in
a
series
to
(1)
unload mail onto
the
receiving conveyor ,
(2)
“ singulate ”
and weigh
individual mail
items ,
(3)
capture a
photographic
image of each item,
and
(4)
transfer each
item
to the I ND
Subsystem . When
any
conveyor
in the FSD Subsystem become s
inoperable, the entire FSD Subsystem is
rendered
inoperable . For a
single sided
APPS
such as the APPS at the Center, if the FSD Subsystem were to be inoperable, the APPS
would not be
capable of processing mail . ( Ex. R-30
at
2- 3 , 34 ). -
Induct ion
Subsystem
(IND Subsystem) .
A
diagram of the IND Subsystem
that also reflects
its relation to the two other subsystems
is
in footnote 2 . 2
a. The sole components of the IND Subsystem are
four
i nduction
l anes
( sometimes
called
“ i nduct
l anes ” ) —three
“ a utomated ”
i nduction
l anes and
one
“ s emi-automated ”
i nduction
l ane.
T h e
induction lanes
convey
mail
items from the FSD Subsystem to the Sorter Subsystem . A
conveyor known as the “ s hoe
s orter ”
( a co nveyor in
the
FSD Subsystem )
transfers mail items
onto
the
i nduction
l anes , which in turn
transfer the items
to
the
“sorter train”
( a conveyor
in the Sorter Subsystem ) .
b. The three
a utomated
i nduction
l anes are arranged adjacent and parallel to one another. (Ex. R-30 at 8). Each
a utomated
i nduction
l ane consists of five conveyor belts, numbered 1 through 5 in the order of mail flow .
The top surface of the conveyor belts
is
elevated about
66 inches
(5.5 feet)
above floor level. (T.
48,
551 ).
c. Belt number 2
of
an
a utomated
i nduction
l ane is curved to make a ninety-degree
turn
and
is
described in
a
maintenance manual as the “induction curve conveyor.” (Ex. C-46 at 1). Belt 2 on induction lane 3
is the
belt that broke and required repair at the Center in October 2016
( identified hereafter as conveyor belt “I-3-2”
for
“ induction lane 3, belt 2”) .
d. Belt
number
1
of
an
a utomated
i nduction
l ane
is immediately adjacent to the
s hoe
s orter
( a
co nveyor in
the FSD Subsystem) ,
and Belt 5 is immediately adjacent to the
s orter
t rain
( a
co nveyor in
the Sorter Subsystem) . (Ex. C-1 ;
Ex.
R -30 at 8 ).
Belts 1 and 5
are
described as “45 degree”
conveyor
belts because
that
is the angle at which
each meets
the conveyors of the adjoining subsystems . Belts 1 and 5 are also
sometimes
referred to
as the “outside” belts because
they
bookend
the “inside” belts ( b elts 2, 3 and 4 )
and
adj oin
conveyor belts
located
in the other two
subsystems.
- Sorter Subsystem . The main components of the Sorter Subsystem are (1) a conveyor called the sorter train, and (2) multiple output chutes. The sorter train conveys mail items to various output chutes, which discharge the items into a variety of container types for subsequent delivery. (Ex. R-30 at 2).
IND Subsystem’s Interlocked
Maintenance Access Gates
- Employees
needing to work on an i nduction
l ane
can only get to it
by opening and passing through
one or more
interlocked
“M aintenance
A ccess
G ates ” (“access gates” or “gates”). ( Ex. R-30 at 9 ) . In the
diagram
in footnote 2
supra , the four
access
gates are
designated
with the letters
A, B, C and D. (Ex. R-30 at 9). The cross-hatched quarter circle s
in the
diagram
reflect the
s wing radi us
of each gate .
( T.
53- 54,
463 ) .
The
region
between
g ate
A
and
i nduction
l ane 4
is
known as the “induction area” and
is
regarded as
a
“ m aintenance
o nly” area
to be accessed only b y
highly trained
maintenance
employees
who are
known as
Mail Processing Equipment mechanics (MPEs ) . (Ex.
R- 30 at 9; T.
24 ,
52 ).
-
When
a n access gate
is opened
while
the IND Subsystem is operatin g ,
an
interlock feature
will cause
a ll
t h e conveyor belts on the
i nduct ion
l ane
that
is
immediately beyond the gate
to stop . (Ex. R 30 at 9). Th is
interlock feature prevent s
employees
from
making inadvertent contact with an
i nduction
l ane’s
moving belts. ( See
id. , noting that the interlock feature “would prevent an inattentive employee from wandering up to the conveyor and
reaching on top of the lane where moving belts are present ” ). -
Each
a ccess
g ate
is
about
four
feet high. ( See
Ex. C-8 ;
T.
56-57 , 59 ). Before o pening
a
gate,
an
MPE
is supposed to
depress a
white-colored
button
that is
located
near
the
gate
entrance . Depressing the
white
button
causes the
i nduction
l ane
that is
beyond the gate
to clear
itself of
any mail items
on th at
i nduction
l ane
and
then to
bring a ll the
conveyor belts
of that
i nduction
l ane
to a
halt . So,
for example,
depressing the
white
button at the entrance to
g ate A
will
cause a ll
mail
items on
induction l ane 1 to be
moved off the
l ane ’s five conveyor belts
and
then
a ll five belts
w ould
come to a halt . Opening
g ates B, C and D ha ve
the same effect on the belts in
i nduction
l anes 2, 3 and
4
respectively .
( Ex.
R - 30 at 9). When
an
i nduction
l ane is cleared of mail
and
its
belts
come to a standstill ,
the
white-colored
button
then
illuminate s ,
which
sign als to the MPE
that it is then permissible to
open
the gate and pass
through .
Typically, after an MPE passes through a gate, the gate
is kept
open , and the induction lane beyond it remains at a standstill
for so long as
the
MPE
remains
on the opposite side of the gate entrance. (T. 112-13, 116-17, 277-79).
-
An
i nduction
l ane that has been
brought to a standstill
in the manner described in the pre ceding
paragraph
can be
returned to operation
by
an MPE
closing the gate and then depressing
a green -colored
“reset”
button
that is
located
on the same switchbox
as
the white-colored button
for that gate . Dep ressing th e reset
button
after the gate is
closed
causes the conveyor belts on the
i nduction
l ane
associated with that
button to resume processing mail. -
The interlock
feature
for the gates
can be
bypassed
by an
MPE
passing through a gate ,
closing
the gate
behind
her ,
then
reaching
back
over the top of the
now
closed
gate
( through a n
opening
between the top of the gate and the
underside of the
elevated
induction lane belt 2 ) ,
and then
de press ing
the
reset
button . This method of bypassing the interlock is
depicted in the photograph at Exhibit
C-9. (T.
231 ). B ypassing the interlock
in this manner will
cause the conveyor
belts
for
the
i nduction
l ane on the
exit side of the closed gate
t o resume operating and processing mail . So, for example, depressing the
reset
buttons associated with
g ates A and B after those gates have been closed behind an
MPE
who
has passed through th ose
gates will cause the conveyor belts of
i nduction
l anes 1 and 2 to resume processing mail. (T.
259 ). -
To rebuild
b elt
I-3-2, MPEs had to pass through
g ates A, B, and C
to
get to
i nduction
l ane 3 .
For
i nduction
l anes 1 and 2 to
process mail
while
MPEs
rebuilt
b elt I-3-2,
the
MPEs had to close
g ates A and B
behind them
and
then
bypass
the interlock
feature by pressing the
reset
button
while
standing on the
opposite side of the closed gate
and
reaching
over the
top of
closed gate
in the manner depicted in Exhibit C-9. (T.
81-82 , 109-1 2 ,
116-17 ,
1 20 ,
257-59 , 277-79 ).
MPEs are generally prohibited from bypassing the interlock
feature in this manner . (T. 116-17 ,
136,
230-32 , 255 , 502 , 601 ; Ex. R-30 at 11-12 ). USPS’s voluminous maintenance manual for the APPS (MS-202,
see infra
¶
32 ),
instructs MPEs
that the reset button
“should not be pressed until maintenance personnel leaves that area and closes the access
[gate],” and that when the reset but ton is pressed “all personnel should be clear of the area . ”
( Ex. R-30 at 12 ).
- In the
repair and
rebuild of
b elt I- 3-2, the
MPEs
did their work
while
positioned
on
the floor
are a
that is
between
i nduction
l anes 2 and 3
as depicted in the
diagram in footnote 2 . In that
space, t he distance between the inner radius of curved
b elt I-3-2 and the outer radius of curved
b elt I-2-2 is about
three feet . (T.
478 ).
The distance from belt I-3-2 to the
shoe sorter is about 3.5 feet , and
the distance
from belt I-3-2 to the sorter train is about
4.5 feet. (T. 551).
Control of Electricity to the APPS and its Subsystems
- The APPS
receives power via a single
480-volt
(AC)
power drop to the
Sorter Main Control Cabinet (“SMCC”) .
(T. 36-37, 39; Ex. C-10 at 6 ; Ex. R-30 at 3 ).
- Th e SMCC
is the main power source for the entire APPS
and
distribut es
electricity
to each of
its
three subsystems. If
power is shut off at the SMCC, the entire APPS is de-energized .
(T. 36-37; Ex. C-10 at 1, 5).
-
The SMCC is outfitted with an energy isolating device (EID)
that is capable of being locked out . When
in the off position , th is
EID
de-energizes all three subsystems of the APPS. (Ex. C-10 at 8).
The
Center’s
APPS cannot process mail
when the SMCC is de-energized . -
The SMCC
delivers
electricity to the
FSD Subsystem
by delivering
it to the
FS D
System’s
Main Control Cabinet
(FSD-MCC).
The FSD-MCC is outfitted with an EID that is capable of being locked out. When in the off position, th is
EID de-energizes the
entire FSD Subsystem . The
Center’s
APPS cannot process mail with the FSD Subsystem de- energized . (Ex. C-10 at 16). -
The SMCC
delivers electricity
to the
I ND
Subsystem by delivering
it to the I ND
S ystem’s Main Control Cabinet ( IND -MCC).
The IND-MCC is outfitted with an EID that is capable of being locked out. When in the off position, th is
EID de-energizes the entire I ND
Subsystem. When
electricity
to the IND-MCC is disconnected, the entire I ND
S ubs ystem is de-energized . T he
Center’s
APPS cannot process mail
with the I ND
Subsystem
de-energized .
(Tr. 40; Ex. C-10 at 3 4 ).
-
Unlike the FSD Subsystem and the IND Subsystem, the Sorter Subsystem does not have a
dedicated
Main Control Cabinet. Rather, t he SMCC delivers electricity directly to the Sorter Subsystem. -
Both t he FSD-MCC
and the IND-MCC
distribute the 480 volts
AC
of power
receive d
from the
SMCC to the ir respective subsystem component s
by delivering the electricity to
multiple
Distributed Control Cabinets (DCCs)
within
their respective
subsystem s . -
T he FSD-MCC
delivers 480 volts AC to
eight
FSD
Distributed Control Cabinets
(FSD-DCCs)
that are
identified as FSD-DCC-1 through FSD-DCC-8. (Ex. C-10 at 16 ; Ex. R- 30 at 7 ).
E ach
of the eight
FSD-DCC s
distributes power to
a
specific
group of conveyors
in the
FSD Subsystem . Consequently,
some
adjacent
conveyor
belts
in the FSD Subsystem receive power through different FSD-DCC s . (Ex. C-10 at 16;
Ex. R-30 at 7 , 34 ).
Each FSD-DCC is equipped with an EID
that is capable of being locked out and
that
when in the off position
de-energize s
the component of the FSD Subsystem t o which that
particular
FSD-DCC
supplies
electricity . ( Ex. R 30 at 7 ).
- T he IND-MCC d elivers
the
480 volts
AC
that it receives from the SMCC
to f our
Induct ion
Distributed Control Cabinets
(IND-DCCs)
that are
identified as
IND-DCC-1 th r ough IND-DCC- 4 .
(Ex. C-10 at 34).
Each induction lane has a
dedicated
DCC , which is located
underneath
belt 3
of each induction lane as indicated in the diagram in footnote 2 . I nduction lane 1 receives power through IND-DCC-1,
induction lane 2 receives power though IND-DCC-2, and so forth .
(Ex. C-1; Ex. R-30
at 3-4;
T. 36-37, 40 , 66-67, 75 ).
Each
IND-DCC is equipped with an EID
that is capable of being locked out . When
the E I D for an
i nduct ion
l ane’s
IND-DC C
is
in the off position ,
480 volts
AC
remains at the top of the IND-DCC enclosure but is removed from the
i nduct ion
l ane itself (except for a residual 24 volts, which
is deemed a non-hazardous level under
USPS’s hazardous energy control procedure ) . (T. 62-64;
Ex.
C-10 at 2). When
the E I D for
an
a utomat ed
i nduct ion
l ane’s IND-DCC is
in the off position ,
electricity
cannot be
dist ributed to
any of
the
five motors
that
drive
the lane’s five conveyor
b elts
( each
of the five
belt s
being
driven
by
a separate motor ) . (Ex. R-30
at
3-4 , 14 ) . Consequently, when
an
i nduct ion
l ane’s IND-DCC is de-energized,
all five belts in that
i nduct ion
l ane are de-energized . (Ex. R-30 at 7 -8 ; T.
512 ) .
- When
an induction lane’s
IND-DCC
is
de-energized,
other
i nduct ion
l anes
that are not de-energized at their respective IND-DCCs
can continue
to
process mail. ( Ex. R-30 ).
Hazardous Energy Control Procedure s (LOTO)
- USPS
has
developed a
written
APPS-specific hazardous energy control procedur e
that applie s
to
every
APPS that
it
operates
in the field.
Th is
written
procedure is in the form of a USPS “Maintenance Management Order” (MMO)
that was prepared and issued
by
USPS’s headquarters for Maintenance Operations located in Norman, Oklahoma.
The APPS-specific energy control procedure that was in effect in October 2016
is
titled
“Equipment Specific Energy Control Procedure: Automated Package Processing System
––
Single and
Dual (APPS) , ”
dated June 22, 2015 and
designat ed
“MMO-037-15.” There had been pr ior
iterations of the APPS specific energy control procedure that bore
different
MMO designations . (T. 13 9 ,
490-91 ).
- USPS
developed
MMO - 0 37-15 , as well as
its
prior
iterations,
to
meet the requirements of
OSHA’s
LOTO
standard .
(Ex. C-10 at 1).
-
MMOs
like MMO-037-15
contain mandatory instructions that
all of
USPS ’s
MPEs
are required to follow. (Ex. C-10; T. 171-72, 123-24, 216, 235). -
MMO- 0 37-15
has a total of 57 pages
( some intentionally b lank). The first
three pages
set forth basic provisions ,
with the third page being the
signature
page for the USPS
official who approved the MMO .
The remaining 54 pages of the MMO
a re made up of
eight “attachments,” each of which pertain s
to discrete components and functions of an APPS. (Ex. C-10 at 3).
- S ection 1.0 of the
MMO
declares its
“ General Principle ”
to be
as follows :
Under OSHA’s Standard on Control of Hazardous Energy (Lockout/Tagout), 29 CFR 1910.147,
before service or maintenance is performed on machines or equipment, the machines or
equipment must be turned off, disconnected from all energy sources, and then have an energy
isolating device, lock, and identification tag applied, unless an exception exists as identified in
Section 3.0 Exceptions to Lockout.
The United States Postal Service requires the application of a locking device and personal
identification tag for each technician working on the machine or equipment.
The discussion below explains when this general principle is to be implemented with equipment
in Postal facilities.
(Ex. C-10 at 1).
Immediately following this statement of “general principle,” section 2.0 of the MMO states its applicability to servicing and maintenance operations , providing in its entirety as follows:
Equipment must be locked out for all maintenance or servicing activities any time the
unexpected startup, application of power or release of stored energy could injure someone or
could damage the equipment.
This includes all preventive, corrective, breakdowns, or
maintenance activities occurring during the run-tour; work such as cleaning, lubricating, and
component replacement is included .
In addition, employees must also lockout as required by
m aintenance documentation, local policy, or supervisor direction.
The MMO’s section 3.0
is
captioned “Exceptions to Lockout . ”
This section
includes
the following paragraph
(bold typeface in original) :
Some machines have modular assemblies that are designed for separate subassembly de-energization and isolation, to enable performance of service or maintenance activities.
Provided there is no exposure to injury from unexpected startup, application of
power, or release of stored energy, portions of the machine, such as, the ink jet printer and
computer may remain powered to prevent clogs and loss of run
data
respectively.
-
Attachments one through five of the MMO address hazardous energy control procedures. (T. 369; Ex. C-10 at 1). Attachment 1 addresses the procedure for de-energization of the entire APPS machine, which occurs at the SMCC. (Ex. C-10 at 3, 5-14). Attachments 2, 4 and 5 each address the procedure for de-energization of
each
of the three subsystems. (T. 369, 460). (T. 369; Ex. C-10 at 3, 15-24, 33-48). Attachment 3 addresses procedures for de-energization of the DCC for the unloader (which is part of the FSD Subsystem and receives electricity directly from the FSD-MCC). (Ex. C-10 at 25-32; Ex. R-30 at 34-35). Attachment 3 is the only attachment that is dedicated to describing energy control procedures solely for one of the DCCs. (Ex. C-10 at 3, 25-32; T. 491). (Attachments 6, 7, and 8 are supporting documents that are not pertinent to the issues presented here. [T. 369; Ex. C-10 at 3, 49, 51, and 53].) -
MPEs, i n addition to re lying on
MMO-037-15
for LOTO procedures,
rely
also
on
USPS’s maintenance manual for the APPS, which is titled “Maintenance Series Handbook MS 202 ” (MS-202).
(T.
123, 149,
155-56, 238-39 , 296-98 ).
MS - 202 is
in six volumes and is
thousands of pages long . (T. 157, 314). Its table of contents contains roughly 3000 separate headings.
(E x . C-42).
-
The energy control procedures set forth in attachments 1 through 5 of MMO-037-15 contain multiple references to
MS - 202 . (Ex. C-10 at 8, 9, 10, 12, 20, 28, 43, 44). For example, in detailing the shutdown procedure for the entire APPS by de-energizing the SMCC,
Attachment 2 of
MMO-037-15 states: “ For detailed steps to properly shut down the APPS system refer to MS 202, Volume A, Section 3.5. ” (Ex. C-10 at 8). -
MS - 202 contains specific instructions regarding how to repair or replace
particular
part s , as well as listing the parts needed for the repair, and
some times
it
identifies
which EID to lock
out
before performing
a particular repair or maintenance activity. (T. 155-56, 238-39;
e.g.,
Ex. C-45 [sec. 5.8.6.1, ¶1] ;
Ex.
C-46 [sec. 5.8.12.1, ¶1] ; Ex. R-30 at 26 [sec. 4.9.1.2, ¶1], at 30 31 [sec. 4.9.3.5.4, ¶¶10 & 21], at 32 [sec. 5.8.5.5, ¶1], at 33 [sec. 5.8.5.6, ¶1 ] ) . -
MS-202 contains
specific
instructions on performing
some
of the
tasks that
had to be done to
rebuild
b elt I-3-2. MS-202
identifies
the
IND-MCC
to be locked out for
some
those
tasks , such as the removal of
certain guards, removal of
the wheel and shaft , and removal of the pressure rollers . (T. 16 5 -72,
238- 43 ,
296-98; Ex. C-45
at 1 ;
Ex.
C-46 at
1-2 ,
12,
25 ; Ex. R-30 at
23 -24, 30-31 ) .
MS 202
generally
does not
set forth specific procedural steps for de-energizing and locking out an EID. But
MS-202
sets forth the following
“W arning ”
immediately before
it identifies a particular EID to be
lock ed
out:
WARNING
Refer to local lockout procedures to properly shutdown and lockout this machine before performing the following task.
(Ex. R-30 at 21, 23, 24, 26, 29–33; Ex. C-45
at 1 & 3; Ex. C-46 at 3, 6,
7, 9, 12, 14, 17, 19, 22, 24, 25 ).
- The Center had no local procedures that augmented the lockout procedures set forth in MMO-037-15 or MS-202. (T. 150,
156, 171,
503-04 ).
The Center’s management had not developed or trained MPEs on any formal local LOTO procedure specifying the lock out of an IND-DCC for the repair of an automated induction lane’s “inside” belt (belts 2, 3 or 4). ( Id. ).
-
MS-202 describes some minor
service and
maintenance
activities , such as photo-eye alignment,
that
are
completed by locking out
an
IND-DCC. (T. 142-43,
288-89, 301,
595-98 ; Ex. R 30 at
26 ). -
MMO-037-15 , as
aug mented by MS-202 ,
set s
forth
the
complete
approved APPS specific
LOTO
procedures
that
appli ed
to the
Center’s APPS
in October 2016 .
(T. 123, 138-39, 294-99, 309-312, 335-36, 350-51, 503-04).
- Attachment 4 to MMO-037-15
is titled “Isolation of the Induction Main
Control Cabinet – IND-MCC-X .”
( Ex. C-10 at 33 ).
(The “X” designation
pertains
only
to
dual - sided APPS
machines — the “X” is a placeholder for
the number “1” or “2” to reflect
one of the two sides.)
Attachment 4 is the
only
attachment that addresses de-energization of the IND Subsystem or any components of that subsystem, including
each induction lane’s dedicated
IND-DCC. (T. 138-140, 152-53, 236, 310-12) .
Attachment 4 does not contain any specific LOTO procedures directed to any of the
f our
IND-DCCs. (T. 295, 310-12, 501; Ex. C-10 ) . The
introductory
and prefatory
paragraph s
of Attachment 4
provide as follows
(formatting
and
bold
typeface
in original):
The following procedure has been developed specifically for locking out the Induction Main Control Cabinet – IND-MCC-X when performing corrective or preventive maintenance. Each facility will use this procedure.
…
WARNING
Failure to comply with lockout procedure may result in injury or death to personnel and/or damage to equipment.
NOTE
Employees must adhere to the policies of the Electrical Work Program (EWP), which includes Energy Control Procedures (ECP). Failure to properly observe ECP will result in appropriate action.
[
]
MACHINES OR EQUIPMENT UTILIZING THIS PROCEDURE:
APPS Induction Main Control Cabinet – IND-MCC-X
[End Page 1 , and Begin Page 2
of Attachment 4]
The APPS is designed with multiple maintenance accessible disconnect switches to facilitate certain limited repairs without locking out the entire APPS machine. There are numerous disconnect switches located on Distributed Control Cabinets (DCCs) in the Feed and Induction sections of the APPS. It is not recommended to isolate power at the DCCs because there are belts
in close proximity to
each other that are controlled by separate DCC enclosures.
This would necessitate the use of multiple locks to prevent motion of adjacent belts or
assemblies. It is recommended that the Main Control Cabinet (MCC) enclosures be used as isolation points for conveyor repairs. The Induct Main Control Cabinet (IND-MCC-X) for Induction repairs and the Feed, Singulation & Distribution Main Control Cabinet (FSD-MCC-X) for FSD repairs for each side of the APPS.
[ sic ] 3
NOTE
Isolation of an IND-MCC-X will prevent the ability to process mail on that side of an APPS. The opposite side of a Dual Sided APPS can only process mail if a Single Sided
sort
plan has been written for the opposite side of the APPS.
The IND-MCC-X supplies 480 VAC to all IND-DCC-X enclosures (IND-DCC-X 1 through 4) for that side of the machine. Opening the disconnect on this enclosure will remove 480
VAC
from the conveyors of the Induction section of the machine, preventing motion of all conveyors in the Induction section in order to facilitate belt, bearing, or roller replacement.
WARNING
Repairs may not be performed on the
45 degree
induction conveyor belts adjacent to the Shoe Sorter unless the FSD section has also been isolated to prevent belt motion.
Repairs to the
45 degree
belt adjacent to the cross belt Sorter may only be performed while the entire APPS is locked out.
After stating one
additional
“warning” and one
additional
“caution” not relevant to the issues
here ,
Attachment 4
has a paragraph
captioned
“Purpose”
that
states in its entirety as follows:
“ To prevent mechanical motion of conveyors within the Induct system and remove the potential hazard of 480 VAC at conveyor drive motors
in order to
facilitate repairs or replacement
without powering down the entire APPS . ”
Training and
Historical
Application of
APPS LOTO
Procedures
-
MPEs attend
an
approximate five-week training course on the repair and maintenance of the APPS , which is conducted
at USPS’s
national
training center in Norman, Oklahoma. (T. 181). MPEs
are
trained that for major service and maintenance of any induction lane belts, the IND-MCC should be de-energized. (T. 143, 224-25, 233, 239-40, 289-91, 294-95, 592-93 310-12, 600). -
Prior to the rebuild of belt I-3-2 in October 2016, none of the MPEs at the Center had been trained to lock out only the IND-DCC for the repair of an “inside” belt on an automated induction lane. MPEs understood
MS-037-15 to
specif y
that the IND-MCC be locked out
for
conveyor repairs and for
belt, bearing, and roller replacement
( all of which
had to be done to repair
belt I 3 2 ) . (T. 118, 144, 225, 233, 239-240, 289-91, 294-95, 310-12). -
Prior to the rebuild of belt I-3-2, MPEs at the Center had
not
locked out an IND-DCC
to control hazardous energy during the
repair
of
an
induction lane’s
“inside” belt s . (T. 225, 296). -
In October 2016, the maintenance supervisors for
at least two of the three shifts
had not received formal training on the APPS, and they generally deferred to the knowledge and experience of the MPEs
they supervised
in implementing the LOTO procedures for the APPS. (T. 330, 340, 347, 354-55). -
The Center’s maintenance manager ( Kevin
Pfanders), who
at one time had
been employed
as an MPE ,
recognized that it was not normal operating procedure for MPEs to work on an induction lane while other induction lanes
wer e running except for “minor, typical repairs that we perform every day” such as adjusting a
photo cell
and “adjusting things like that.” (T. 562 63).
Belt I-3-2
Breakdown and
Repair
- B elt I-3-2
broke
at
about
4 : 00
p.m. on Saturday, October 1 5 , 2016 . Th e break
occurred
during the work shift known as “Tour 3 , ”
w h ose
hours
are
from about
2 : 0 0 p.m. to 1 0 : 3 0
p.m.
T he
repair
required
a substantial mechanical rebuild of the entire mechanism ,
which
entailed
rebuilding the rollers ,
bearings , drive
shaft,
wheel
and pulleys
that powered the broken belt . (T.
93,
9 6-98 , 118-19 ,
144,
147 , 227 ,
290-91,
350 ; Ex. C-16 ; Ex. R-31
at Bates 332 ). Some tasks in performing the rebuild required
that
three MPEs
be
working hands-on at the same time
in the
floor space between
induction lanes 2 and 3 . ( T. 100). The
MPEs regarded the
rebuild to be a “big job . ”
(T. 147 , 227 ,
2 90- 91 , 350 ). Operating the APPS without
i nduction
l ane 3
in service
reduced the
APPS ’s
production
volume between 25 %
to 3 3 % . (T. 333-34).
-
From the time that
b elt I-3-2 broke to the time
that
the
repair
was
completed, the APPS was powered down completely during the following
preventive maintenance periods,
( known as “PM windows” ) : from 2:30 a.m. to 10:30 a.m.
(8 hours)
on Sunday, October 1 6;
from 1:00 a.m. to 8:15 a.m.
(7.25 hours)
on Monday, October 1 7 ; from 3:45 a.m. to 7:30 a.m.
(3.75 hours)
on Tuesday, October 18; from 3:45 a.m. to 9:15 a.m.
(5.5 hours)
on Wednesday, October 19; and beginning at 3:15 a.m. on Thursday, October 20, which is the day the repair was completed. (Ex. R-10; T. 552-54). (No
evidence
was presented on
the time of day
on October 20
that
the
repair was completed
or when
the APPS
resumed operating
with all induction lanes operable . ) -
Upon being informed on the evening of Saturday, October 1 5 , that
b elt I-3-2 required repair, the
Center’s
acting
plant manager , Jeffrey Hotchkiss,
directed that the
repair be completed
when the APPS would be shut down
during
a
regularly scheduled
8-hour
PM window
from 2:30 a.m. to 10:30 a.m. on Sunday, October 16. ( T.
4 19 -22 , 555 ;
Ex. R-13 at
Bates 332 ; Ex. C-16 ).
The repair was not completed
during th at
PM window
on
Sunday
morning ,
however ,
because of
replacement
part
problems .
(T. 129, 202 ,
550 ).
The
parts
problem persisted
beyond Sunday,
and the repair remained incomplete through
the 7 .25 -hour PM window on Monday
morning
and
the
3.75-hour PM window on Tuesday
morning .
(T.
549-50 ).
- Soon after
the conveyor broke
on Saturday , October 15 ,
i nduction
l ane 3 was de energized and locked out at the IND-DCC-3,
and
two or
three
Tour 3
MPEs
began
to
strip
it
down
as
the
other
i nduction
l anes continu ed
to operate and the
APPS
continu ed
to run and process mail . (T.
342 -43 ,
555, 561) .
The supervisor of maintenance operations for Tour 3 did not perceive
this
approach
to
have
be en
contrary to the APPS specific LOTO procedures, although she d oes
not
regard
herself as expert
on those procedures . (T. 330-31, 338-40). None of th e
Tour 3
MPEs
doing the
work
voiced any objection or concern
about
working on
i nduction
l ane 3
while the other induction lanes continued to process mail. (T.
342-43 , 555 ).
( The
record
does not
indicate
who
on Tour 3
decided to lock out the IND DCC 3
or how that decision was made . )
- Around 10:00 p.m.
on October 15 ,
Tour 1 MPEs
began to
arrive for their shift
( hours
about 10: 3 0 p.m. to 6:30 a.m.) .
(T.
131 ,
564).
O ne of the Tour 1
MPE s,
Mr.
Christopher Day ,
told
his supervisor ( Mr. Kevin Kibodeaux,
the
Supervisor of Maintenance Operations for Tour 1 )
that he believed i t was inappropriate to work on an induct ion
lane while the APPS was running. (T.
569).
-
By an email sent at 10:39 p.m. on Saturday October 15,
Mr.
Kibodeaux
informed
the Center’s maintenance manager , Kevin
Pfanders ,
that Mr. Day believed “that working on an induct station while the machine is running is an OSHA violation.” (T.
560,
567). Pfanders
later
instructed
Kibodeaux
t o complete the
rebuild during the
8-hour
PM window
on
Sunday
morning , October 16 . (T. 5 55- 56 , 569-70 ). -
F rom
2:30 a.m. on
Sunday ,
October 16 ,
t hrough
7:30 a.m. on
Tuesday,
October 18,
(a total of 53 hours)
no
repair
work
on
b elt I-3-2
w as done
outside the PM windows
or
otherwise
when the APPS was
running . (T. 578-79). -
The
rebuild of
b elt I-3-2 remained unfinished when
the
day shift
( Tour 2 )
MPEs
started
to work
on
Tuesday ,
October 18 ,
at around
7 : 3 0 a.m. The Center’s maintenance manager
( Pfanders )
instructed the
Supervisor of Maintenance Operations for Tour 2, Joe Basso, to direct MPEs
on Tour 2
to
perform the rebuild with only the IND-DCC-3
locked out
and with the APPS continuing to process mail. (T.
292-93). -
Mr. Ron Jacobs , Jr. ,
has worked as an MPE for USPS
for
over 20 years
and is employed at the Center
on
the
day shift . (T. 221-22).
Mr.
Wayne Greenzweig has worked as an MPE for USPS for over 10 years and is also employed at the Center on
the day shift. (T.
284-85). A t the start of
Jacobs’ and Greenzweig’s
workday on
Tue s day, October
18,
the ir
superv isor
(Joe Basso)
directed
them
to work on the
rebuild
of the
b elt I-3-2
w ith
only
i nduction
l ane 3
locked out
(at the IND-DCC-3)
and
with
the
APPS
continu ing
to operate and process mail . (T. 22 8 ,
291 92 ).
Both
Ja cobs
and Greenz weig
told
Basso
that
t he y
believed
re pairing
b elt I-3-2
after
locking out
only the IND-DCC-3
was
contrary to
procedures . (T. 229 , 291-9 5 ). Basso
then
informed
them
that
if
t he y
refused to
work on the r epair as directed ,
th en he would
have to
“send them home”
as he had been instructed to do by his supervisor,
the
Center’s
m aintenance
m anager
( Pfanders ) . (T. 229 ,
292 ).
T o
be “sent home” mean s
th e employee
would not receive pay for that day and could be subject to disciplinary action.
(T. 229). Jacobs
complie d
with
the order and
he
spent the day working
directly on
b elt I 3 2
with only the IND-DCC-3
locked out
and while the
APPS continued to operate and process mail. (T. 229 , 243 ).
Greenzweig
request ed
permission to
work
in a n alternative
location where he
believed a
hazard
did not
exist , and his request was granted . (T. 293 ).
- After deciding to comply with
his
supervisor’s order ,
MPE
Jac obs
spoke by telephone that same day with
the MPE
Christopher Day , who
also
serves as a n officer
in the
Lehigh Valley Area Local of the
APWU . Jacobs
told
Day
about
Basso’s o rder to
repair
b elt I-3-2 with only the IND-DCC-3
locked out .
(T.
120 -22 ,
245) .
-
After
speaking with Jacobs , Day
telephoned
the
Center’s maintenance manager, Kevin Pfander s ,
and told Pfanders of Jacobs'
concerns
and expressed the view that
established procedures required that
the IND-MCC be
locked out
during the rebuild of
b elt I 3 2 . (T.
177,
208).
Day asked Pfanders “to stop the project immediately , ” but Pfanders told Day
that
he would not
do so . (T. 126). -
At some point, the record does not indicate
when or
how , the
acting
plant manager,
Mr.
Jeffrey Hotchkiss, became
aware that some
MPEs
were concerned
that
repairing belt I-3-2 by
locking out
IND DCC 3
while
the
APPS continu ed to r un
violated the APPS specific LOTO procedure .
(T. 423-25). On Tuesday, October 1 8
( the same day that Day
and Pfanders spoke by phone ) ,
Hotchkiss
s ought
guidance on the issue
by
speaking on the telephone
with
Mr.
Michael Thompson . Mr. Thompson
is
a M aintenance
M anagement
S pecialist
based
at USPS’s
Maintenance Technical Support Center
(MTSC)
in Norman, Oklahoma . Hotchkiss contacted Thompson because he regarded
Thompson
to
be
USPS’s
foremost authority on the APPS , and Thompson had assisted him before . Hotchkiss
had
confidence in Thompson’s knowledge and expertise on the APPS , testifying that
when “it comes to an APPS problem or issue”
“ there’s nothing that I do without talking to ”
Thompson . (T. 424 -25 ) . -
After Hotchkiss described the situation and his objective of having the APPS continue to process mail while
b elt I-3-2 was being repaired,
Thompson
advised
Hotchkiss that
it was
safe
to
lock out
the IND-DCC 3 during the rebuild of
b elt I-3-2
and
for
the APPS
to
continue to process mail
while repairs were done . ( T. 425-26 ; Ex. R-30 at 18-19 ). -
When Thompson advised Hotchkiss,
Thompson
did not make any independent determination that
locking out the IND-DCC-3 for the repair
conformed to MMO-037-15. (T. 505). Rather,
Thompson
voiced
a
technical
conclusion
that MPEs working on
b elt I-3-2 with
only the IND DCC 3
locked out
and the APPS continuing to process mail would not be exposed to any hazardous energy or any struck-by or caught-in hazards by virtue of the APPS continuing to process mail. (T. 505). Thompson did not make any determination or inquiry into whether
doing so would conform
with established procedures in MMO -037-15 . As Thompson stated in
a
formal
report
that he
prepared
for the hearing
in this
Commission proceeding ,
he “ did not find issue with local policy allowing for this repair using the
method described. ” (Ex. R-30 at 19). -
In the course of
his telephone conversation with Hotchkiss, Thompson made no determination that the regulatory exception to the requirement of 29 C.F.R. § 1910.147(c)(4)(i) that LOTO procedures
be in written form
applied to the procedure that Hotchkiss sought his views on — locking out only the IND-DCC-3 for the repair of belt I-3-2 . -
After
his
telephone conversation
with Thompson , Hotchkiss
told
his staff that
it was permissible for the APPS to continue to process mail
during the repair of
b elt I-3-2 ,
and
he
directed that the
repairs
proceed
in that manner . (T. 427 ).
Hotchkiss’s
directive
i s documented
in
an email that
he
sent at
5:00 p.m.
on Tuesday, October 18,
to
th re e
officials at the Center: the
Maintenance Manager (Pfanders) ,
the
Manager of Maintenance Operations (Lori Myers [T. 346 ] ) ,
and
the
Safety Specialist
(Denise Edmonds [T.
539] ) . The email
stat ed in part :
“ Team, I've reached out to Mike Thompson of MTSC for the APPS induct question.
We have followed the proper procedures to allow work on the induct line with the machine running.
The induct line is completely powered off which complies with EWP .”
(Ex. R.
1 3 at Bates 365).
( “EWP”
stands for
Electrical Work Plan .
[ S ee
Ex. C-10 at 5]. )
- Hotchkiss
ha d
not been
t rain ed
on the APPS , ha d
never done maintenance work,
and
d id
not regard himself to be a “maintenance person . ”
(T. 43 0-31 ). Hotchkiss
trusted
Thompson , who m
he
believed was
“the one person in the country that knows [the APPS] better than
anybody,”
to give him accurate
guidance
on the
question he posed to
Thompson . (T. 430). Hotchkiss
relied on
Thompson’s
guidance
in
instructing
his staff to rebuild
b elt I-3-2 while the APPS was running with only the IND-DCC-3
locked out . (T. 425-26). Beyond his telephone consultation with Thompson,
Hotchkiss did not conduct
(or direct his staff to conduct)
any independent inquiry
whether the procedure
conformed to the requirements of the established APPS-specific LOTO procedures
(T. 425-26) , and he never personally reviewed MMO-037-15 . (T.
434-35).
-
When
MPE Day arrived to work at
around
10:30 p.m. on
Tuesday,
October 18, his supervisor ( Kevin
Kibodeaux)
directed him to
participate in the rebuild of Belt I-3-2 with only the IND DCC 3 locked out and the APPS continuing to process mail. Day refused . He
t old Kibodeaux that
he believed procedures required that th e IND-MCC be
locked out
during the rebuild of
b elt I-3-2. (T. 132 -35 ,
216) . Kibodeaux informed Day
that he
had been instructed to “send home” any MPEs who refused to do the rebuild as directed. (T.
133 -34 ). Day then asked
and was permitted
to confer with a shop stewar d
before deciding whether to comply with the directive . -
While
Day was conferring with the shop steward,
Kibodeaux
reported to
the
acting
plant manager
(Hotchkiss)
that
Day
still had safety concerns performing the rebuild
with the APPS operating .
Hotchkiss responded by an email sent at 12:04 a.m. on Wednesday, October 19, that he had “already checked at the highest levels through [MTSC],” but
he
instructed Kibodeaux
not to “force anyone to work in what they may think is an unsafe environment , ”
although at the same time he directed Kibodeaux
to “[m]ake sure
[the APPS]
is up and running ”
by 07:30
a.m. (Ex. R-22; T. 429-30).
-
After
Day
finished
me e t ing
with the
shop steward ,
the shop steward met with Kibodeaux, and then
MPE
Day again met with Kibodea ux
to r eaffirm
that he did not feel safe
doing the rebuild
with the APPS continuing to operate . (T. 135). Kibodeaux then
informed
Day
that
he would
allow
Day to opt out of working on the
rebuild
while the APPS continued to process mail , and Day opted
out as permitted . (T. 135 , 17 8 ). -
None of the MPEs
working on Tour 1 in the early morning of
Wednesday,
October 19, 2020, performed the rebuild while the APPS was processing mail. (T.
137). The repairs were not completed by 7:30 a.m.
on October 19
as the
acting
plant manager Hotchkiss
had
directed Thibodeaux
to accomplish just hours
before . -
The re build
w as
completed on
Thursday,
October
20 , though the record does not disclose the
time of day the rebuild was complete . M r.
Day
was one of the MPEs involved in
replac ing
the motor for
b elt I-3-2
during Tour 1 on October 20, but
he did this work
during a PM window
when the APPS was not operating. (T.
134 ; Ex. R- 10 at 3 ).
III.
DISCUSSION
Th e
Secretary
alleges a single
willful/serious violation of
the LOTO standard, specifically § 1910.147(d)(2) , which requires that in executing
LOTO
procedures the “ machine or equipment shall be
turned off or shut down using the procedures
established for the machine or
equipment. ” Section 1910.147(d) (1) – ( 2)
is set forth below
in full
(subparagraph (d)(1) provided for context):
(d)
Application of control. The established procedures for the application of energy control (the lockout or tagout procedures) shall cover the following elements and actions and shall be done in the following sequence:
(1)
Preparation for shutdown. Before an authorized or affected employee turns off a machine or equipment, the authorized employee 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 energy.
(2)
Machine or equipment shutdown. The machine or equipment shall be turned off or shut down using the procedures established for the machine or equipment. An orderly shutdown must be utilized to avoid any additional or increased hazard(s) to employees
as a result of
the equipment stoppage .
The citation allege s
USPS
violated
the cited subparagraph (d)(2)
in the following manner:
Employees are rebuilding an Automated
Package Processing
System, comprised of multiple machines with separate energy sources which have
not been controlled.
This continuing violation m o st recently occu rr ed on or about October 18, 2016, when the previously developed hazardous energy control procedures were not applied to the complete
machine assembly.
The employer's ongoing responsibility is to ensure the adherence to the mach in e
specific procedures to
a ffect
[sic]
the necessary energy control for each system component.
To establish a violation of a n OSHA
standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees were exposed to or had access to the violative conditions; and (4) the employer had actual or constructive knowledge of those conditions. Donahue Indus. Inc.,
20 BNA OSHC 1346, 1348 (No. 99-0191, 2003);
Atl. Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90-1747,
1994).
A.
“Standard Applies” Element .
The LOTO standard’s “Scope” provision,
§ 1910.147(a)(1)(i),
provides that the
“standard
covers
the servicing
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.”
The
LOTO
standard’s
“Application” provision, § 1910.147(a)(2),
provides in relevant part as follows:
(2)
Application.
(i) 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
O
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.
Two defined terms within the quoted “Scope” and “Application” provisions are “normal production operations” and
“servicing and/or maintenance , ”
which are defined in § 1910.147(b) as follows :
Normal production operations.
The
u tilization
of a machine or equipment to
perform its intended production function.
Servicing and/or maintenance . 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.
USPS
acknowledges that the
MPEs repairing belt I-3-2 would be risk of injury from
hazardous energy
relating to the operation of
induction
lane 3. USPS
acknowledges further
that the control of
that
hazardous energy was necessary to protect
the MPEs
from injury during the repair. (Resp’t Br. 11–13). USPS contends, however,
that the
MPEs
repairing
belt I-3-2
with
induction
lane 3
locked out
4
and
the
APPS
continuing
to process mail
(i.e.,
continuing
“normal production operations”)
were not
working in an area “where an associated danger zone exists
during a machine operating cycle” within the meaning of § 1910.147(a)(2)(ii)(B) quoted above. USPS argues
therefore
that
by operation of § 1910.147(a)(2)(ii)(B)
the LOTO standard did not apply
“to all of the other machines that make up the APPS”
(such as
the other three
induction
lanes, the
sorter
train, and the
shoe
sorter),
which the USPS argues are
all
“separate” machines
from
induction
lane 3. (Resp’t Br. 11–13). This argument fails for at least the following reasons.
First,
the APPS is a single machine for purposes of the applicability of the LOTO standard; it is
not a collection of independent machines as USPS
contends. This is
because the
three
subsystems and
the
components
of those subsystems
“serve no other purpose besides the one they accomplish together when operating simultaneously.” Sec’y of Labor v. Action Elec. Co. ,
868 F.3d 1324, 1332 (11th Cir. 2017)
(deferring to Secretary’s informal interpretative guidance that “two pieces of equipment are part of one
‘machine’
if they do
not function independently of one another or if both are sub-systems of a larger
machine” [ id.
at 1330] ).
The APPS is undoubtedly “one system” that serves no other purpose than to process mail items. Indeed,
the APPS
includes the word
“system” is
its very
name—Automated
Package
Processing
System. The
single-sided
APPS
at the Center
cannot process mail unless at least one of the four
induction
lanes in the IND Subsystem
is
operating.
The fact that
the APPS can continue to process mail with up to three
of the four
induction
lanes shut down
does not render the
IND Subsystem, or its four
induction
lanes,
independent
machines
for purposes of
determining the
LOTO standard’s application.
Cf.
Action Elec tric , 868 F.3d at
1334-35 (noting that
two components of a “cooling bed” machine
cannot
“perform useful work in isolation” so that
those
components
“are not independent
‘machines’
but are rather sub-systems of the same” cooling bed machine).
Second, the argument is flawed because it
melds the
third element of the Secretary’s burden of proof (employee access or exposure to
a
violative condition) into analysis for the first element (the
“standard applies” element).
It is true that
establishing
a risk of injury
is an aspect of
the
“standard applies” element
for
an alleged LOTO violation. See
O tis Elevator
Co. v. Sec’y of Labor , 762 F.3d
116, 121
(D.C.
Cir. 2014) (quoting § 1910.147(a)(1)(i) in observing that
application of the
LOTO standard
requires a
showing that the hazardous energy “could cause injury to employees”);
see also
Control of Hazardous Energy Sources (Lockout/Tagout) , 54 Fed. Reg. 36644, 36666
(Sept. 1, 1989)
(final rule,
to be codified at 29 C.F.R. pt. 1910) (“If an energy source does not have the capability of causing
injury to employees, it is not ‘hazardous energy’
within the scope of this standard”). But the uncontroverted evidence
here established that the
MPEs
repairing
belt I-3-2 could be injured by hazardous energy
associated with the operation of induction lane 3, and this
suffices to
establish
the
“standard applies” element for
the
alleged LOTO violation. 5
Third,
USPS’s
argument fails
by virtue of § 1910.147(a)(2)(ii)(A), quoted above, which provides that the LOTO standard applies
to servicing activities conducted during normal production operations where an “employee is required to … bypass a guard or other safety device.” The provision operates to make the LOTO standard applicable to the repair of
belt I32 while the APPS continued
to process mail
because the MPEs were required to
bypass the interlocks for two
access
gates to enable
induction
lanes 1 and 2 to continue to operate while they repaired
belt I32. (See Findings of Fact ¶
14).
B .
Non-c ompl iance Element.
1.
Proof of a Hazard Resulting from the Violative Condition Not Require d.
The cited standard requires employers to control hazardous energy
“ using the procedures established for the machine or equipment .” § 1910.147(d)(2). The Secretary alleges USPS did not comply with this standard during the repair of
b elt I-3-2 in that
“ the previously developed hazardous energy control procedures were not applied to the complete
machine assembly. ”
USPS’s defense
focuses in
large
part
on
its
contention
that
the Secretary failed to
prove
that the MPEs
repairing
belt I-3-2
while
the APPS continued
to process mail were at risk of being injured by the
running machine. USPS argues that the LOTO standard is a “performance” standard,
so that the
Secretary
was obliged to “prove a hazard before an employer is found to have been in violation of such
[a performance]
standard,”
which USPS argues the Secretary failed to do. See
Resp’t Br.
13–14,
citing
Thomas Indus. Coatings, Inc. , 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007).
The
preamble to the LOTO standard aptly describes it
as being
“performance-oriented.”
E .g. ,
54 Fed. Reg. at 36,645
& 36,656. The standard’s “Scope” provision states that the “standard establishes minimum
performance requirements
for the control of such hazardous energy.” § 1910.147(a)(1)(i)
(emphasis
added).
For example, t he provisions of the LOTO standard that prescribe
the matters that an
energy control procedure must address are
certain ly
“performance-oriented . ” See
§ 1910.147(c)(4)(ii)(A)–(D);
54 Fed. Reg. at 36 , 656
(“ The standard is written in performance-oriented language, providing
considerable
flexibility for employers to tailor their
energy control programs and
p rocedures
to their particular ci r cumstances and
working conditions ”);
54 Fed. Reg. at 36,684
(“The Final Rule is written in performance-based language that permits firms to develop lockout or tagout procedures that are most appropriate for their specific machines and equipment”).
But not all provisions of the LOTO standard are
performance-oriented. Rather, some provisions of the LOTO standard have
attributes of
a
specification standard. See
Otis Elevator Co. ,
24
BNA OSHC
1081,
1085
(No.
09-1278, 2013) (determining that subparagraph
(f)(2)(i)
of the LOTO standard is a specification standard),
aff’d
762 F.3d
116
(D.C. Cir. 2014);
Am. Iron & Steel Inst. v. OSHA , 577 F.2d 825, 837 (3d Cir. 1978)
(holding that the
Act permits the Secretary
to promulgate standards that possess both performance standard and specification standard attributes).
The cited
standard
here
provides
that
a
“machine or equipment
shall
be turned off or shut down using the procedures established for the machine or equipment.” § 1910.147(d)(2). The word “shall”
in this subparagraph connotes
a
requirement. Maine Cmty. Health Options v. United States ,
___ U.S. ___,
140 S. Ct. 1308, 1320 (2020).
Section
1910.147 (d)(2)
does not
impose
a ny
precondition
to
the
application of the
mandat e that
employers utilize the
energy control procedures
that
th e
employer
has
establishe d
to
meet the
LOTO
standard’s requirements . Th at
unconditional
manda te
renders the
cited standard here,
§ 1910.147(d)(2) , a specification standard.
As with
any specification standard, the Secretary was not required to prove
an employer’s
failure to comply
with the standard
created a n actual
hazard
under the circumstances then present . E.g.,
Otis Elevator Co. ,
24 BNA OSHC at
1085;
see also
Bunge Corp. v. Sec'y of Labor , 638 F.2d 831, 834 (5th Cir. 1981) (“Unless the general standard incorporates a hazard as a violative element, the proscribed condition or practice is all that the Secretary must show; hazard is presumed and is relevant only to whether the violation constitutes a ‘serious’ one”).
2.
Established
LOTO
Procedures
Not Followed .
USPS argues that MMO-037-15 does not expressly prohibit locking out the IND-DCC for the repair of an
induction lane’s
“inside” belts
(belts 2, 3, or 4), and thus
USPS’s order that
MPEs
do so
did
not contravene
its written
procedures. (Resp’t Br. 5-6;
Resp’t Reply Br. 1, n.1). This argument is rejected. The great weight of the evidence showed that USPS’s established LOTO procedures contained provisions
identifying
the IND-MCC to be
locked
out for the rebuild of any of an
induction lane’s
“inside”
belts.
The APPS-specific LOTO procedure (MMO-037-15) contains numerous references to the maintenance manual for the APPS (designated the
MS-202), and MPEs rely on the MS-202 for
instructions
on what EID to lock out for performing certain repair and maintenance activities. (Findings of Fact ¶
32). MPEs
testified
that provisions of the MS-202
instructed
locking out
components
other than the IND-DCC for certain activities that had to be done as part of the rebuild of an induction lane
belt. That testimony
was
not controverted and was
corroborated by provisions in the MS202. (See Findings of Fact ¶
35).
MPEs
also testified that they
were trained to lock out the IND-DCC only for
certain minor maintenance activities, such as adjustment of the photo-eye. That testimony
was
similarly
corroborated by
portions
of the literally voluminous MS202 and
was
similarly uncontroverted and persuasive. (Findings of Fact ¶¶
37,
44). The Center’s maintenance manager (Pfanders)
also corroborated the MPEs’
testimony on this point,
acknowledging
that
it was not normal operating procedure for MPEs to work on an induction lane while other induction lanes
run ,
except for
making certain
“minor, typical repairs that we perform every day . ”
(T. 562-63).
USPS
focuses on the “recommended/not recommended” language used in
Attachment
4
to
MMO-037-15—locking out the IND-MCC
for
“conveyor repairs”
being “recommended,” and locking out the IND-DCCs being “not recommended.” (Findings of Fact ¶
39). USPS argues that these stated “recommended/not recommended” LOTO practices
were
simply
just that—mere
recommendations—and did not proscribe
locking out the IND-DCC-3 for the repair of
belt I-3-2. (Resp’t Br. 5-6). This argument
ignores
the fact that the MS-202 augmented the
MMO-037-15,
and
effectively transformed
the MMO’s “recommendations”
to
an instruction to
lock out the INDMCC for the rebuild of
an “inside” induction lane belt like
belt I-3-2. (See Findings of
Fact
¶¶
35, 38,
39). Angelica Textile
Serv s. , Inc. ,
2018 WL 3655794, *2,
27
BNA OSHC
1246
(No.
08-1774, June 24, 2018)
(involving written LOTO
procedures
that consisted of multiple documents),
vacated
as moot, and instructing Commission to dismiss
on remand ,
803 F.
App’x
542
(2d Cir. 2020)
(unpublished). This was confirmed by uncontroverted evidence that the
Center’s
MPEs had never locked out
an
IND-DCC
in connection with a major
repair
activity on
an induction lane,
and that the
MPEs
understood MMO03715
prohibited
doing so. The practice of the MPEs, whose
understanding and
judgment on the application of energy control practices their supervisors generally deferred,
is supported
by the provisions of Attachment 4 that locking out the IND-MCC “will remove 480
VAC
from the conveyors of the Induction section of the machine, preventing motion of all conveyors in the Induction section
in order to facilitate belt, bearing, or roller replacement .” (See Findings of
Fact
¶
39
[emphasis
added]). In the rebuild of
belt I-3-2, the belt,
bearings,
and rollers were rebuilt or replaced, as contemplated by the quoted provision in Attachment 4. (See Findings of
Fact
¶
41). The historical practice of the MPEs not to lock out the IND-DCC for
major
work on an induction lane is further bolstered
by the provisions of MS-202 that
instruct
MPEs
not to bypass the
interlock feature of the access gates, which they were required to do
in order
to
enable
induction lanes 1 and 2
to
process mail while
they worked on induction lane 3. ( See
Findings of Fact ¶
14).
Moreover, the
indecisive
“recommended/not
recommended”
language
used in
Attachment 4 is
laden
with ambiguity
and
is poorly
suited
to
meet
the
LOTO standard’s requirement
that written procedures be
set forth
“clearly
and specifically.”
§ 1910.147(c)(4)(ii).
Instructing
that
a certain
energy control procedure
is “not recommended,”
without further explication,
could
reasonably be
interpreted to convey
to the MPEs
the
subtextual
meaning
that “this may be dangerous.” Similarly, instructing
that a certain energy control procedure is “recommended,” without further explication, can reasonably be interpreted to
mean
that “this
procedure
is safer” and
ought to be
utilized instead of
the
procedure that is
expressly
“not recommended.”
Lastly, as the Secretary argues, the only logical reading of Attachment 4 is that
it mandates locking out the IND-MCC for
“conveyor repairs” and
“belt,
bearing, and roller replacement”
of an induction
lane’s
inside belts. This is
because
if such
activities
may be accomplished by locking out the IND-DCC instead of the IND-MCC, then the
procedure
described in Attachment 4
for locking out the IND-MCC for
those activities
would never have occasion to be used. Such a construction
would
render
those
provisions of
Attachment 4
superfluous, having
no operative effect. (Sec’y Reply Br. 11).
3.
No Evidence
USPS
Had Unwritten
Established
LOTO Procedure s .
USPS
acknowledges that
locking
out
an
IND-DCC for the repair of
any
of an
induction lane’s
“inside belts”
(like
belt I-3-2)
is not
set forth
in
any
written LOTO procedure.
(Resp’t Br. 5).
USPS
argues nonetheless
that
doing so
was
an
existing or
established LOTO procedure that
was
excepted from the requirement
of § 1910.147(c)(4)(i)
that LOTO procedures be
“documented,”
pursuant to a
regulatory
exception to that
requirement. See
54 Fed. Reg.
at
36670 (stating that “OSHA believes that because of the
need to follow the steps in the energy
control procedure carefully and
specifically, and the number of variables
involved in controlling hazardous
energy, a documented procedure is
necessary for most energy control
situations”). The exception
to the requirement that procedures be in written form
is set forth in a
“Note” to § 1910.147(c)(4)(i)
that
provides as follows:
N OTE :
Exception : The employer need not
document the required procedure for a particular
machine or equipment, when all of
the following elements exist: (1) The machine
or equipment has no potential for
stored or residual energy or reaccumulation
of stored energy after shut down which could
endanger employees; (2) the machine or
equipment has a single energy source which
can be readily identified and isolated; (3) the
isolation and locking out of that energy
source will completely deenergize and deactivate the machine or equipment; (4) the machine or equipment is isolated from that
energy source and locked out during servicing
or maintenance;
(5) a single lockout device
will achieve a locked-out condition; (6)
the lockout device is under the exclusive
control of the authorized employee performing
the servicing or maintenance; (7)
the servicing or maintenance does not create
hazards for other employees; and (8) the employer,
in utilizing this exception, has had
no accidents involving the unexpected activation
or reenergization of the machine or
equipment during servicing or maintenance.
USPS bore the burden of
proving that
it is entitled to the benefit of this exception. Westvaco Corp. , 16 BNA OSHC 1374, 1377 (90–1341, 1993) (“The party claiming the benefit of an exception bears the burden of proving that it comes within that exception”). USPS failed to meet its burden for
at least the following
two
reasons.
a .
The
procedure
used
was not an “established” procedure
for
a
belt rebuild .
The cited standard, § 1910.147(d)(2), requires that employers use the energy control procedures that the employer has “established for the machine or equipment”
(regardless of
whether such established procedures are
in written form). There is no evidence that
the unwritten
lock out procedure that
the
MPEs were directed to utilize
(to
lock out the IND-DCC for the repair of an induction
lane’s
inside belt)
had
been
“established,”
or in other words was extant,
before the
MPEs were ordered to use
it
during the repair of
belt I-3-2. See
54 Fed. Reg. at
36,666
(“The main thrust of the standard is to mandate the
development, documentation and implementation
of control procedures, and this is to be accomplished as outlined in paragraph (d) of the standard” ). Rather, the great weight of the
evidence is that the procedure
had not been previously developed but
was
instead
devised
in the moment
by the
Center’s
management, which was
understandably
concerned
about
the impact on productivity of shutting down the APPS during the repair. When MPEs
challenged
the procedure, the Center’s acting plant manager
telephoned
the author of the MMO03715 (Mr. Thompson)
with a view
to validating
that procedure.
Mr. Thompson has vast technical expertise and experience with the APPS, but he does not regard himself to be an expert on compliance with OSHA standards. (T. 501). Mr. Thompson testified
that
when
he advised
Mr. Hotchkiss
in
that
telephone conversation, he determined that
the procedure that
Hotchkiss
described to him (locking out the IND-DCC-3 during the repair of
belt I-3-2 while the APPS continued to process mail)
was permissible “from a technical point of view”
in that
the
MPEs performing the repairs would not be at risk of injury.
(T. 505). But Thompson acknowledged that
he did not then
make any determination that
the procedure complied with the
provisions of
MMO-037-15. 6 (T. 505). Rather,
in a written report that Thompson prepared for the hearing, he stated that
in
assessing the procedure that
Hotchkiss
had described to him,
he
“did not find issue with
local policy allowing for this repair
using the
method
described.” (Ex. R-30 at 19).
There is no credible evidence that during or before Thompson’s telephone conversation with
Hotchkiss
that
he
considered whether the procedure discussed was not required to be in writing because it qualified for the exception to the documentation requirement of § 1910.147(c)(4)(i). ( See
T. 492-98). Although Thompson’s written report sets forth his belief that the procedure for locking out the IND-DCC for the repair
of belt I-3-2 qualified for the
exception to the
LOTO standard’s
“documentation”
requirement
in
§ 1910.147(c)(4)(i), there is nothing in Thompson’s
written
report or in his testimony
declaring
that Thompson had formulated that conclusion at any time before the OSHA investigation, or that he had even considered that
issue in the course of his telephone conversation with
Hotchkiss. (Ex. R-30 at 1819; T. 492-98). It is more likely than not that Thompson considered that issue and formulated his opinion on it long after the repair of
belt I-3-2 was completed, as part of his support of USPS’s defense in the matter (in which he testified as both “fact” witness and an expert witness, having been qualified without objection as an “expert on the APPS” [T. 445] ). The absence of evidence as to when Thompson formulated his opinion regarding the regulatory exception to the requirement that procedures be written, coupled with his admitted lack of any special knowledge,
expertise,
or training in OSHA standards (T. 501), supports the conclusion that Thompson formulated this theory sometime after the belt repair was completed.
Thompson
testified further
that in his drafting of MMO-037-15
(or in drafting
a
prior iteration)
he
made
the
considered decision
not
to include a procedure for locking out an IND-DCC for work done on the “inside” belts of an induction lane (belts 2, 3 and 4),
because
he believed that
including that procedure in the document would have lengthened
it
and thereby
made it
“completely too burdensome for the field.”
(T. 492). This testimony makes little sense, seems
highly unlikely, and is given no weight. Just as Attachment 4 to the MMO contains a one-paragraph instruction directing that the adjoining
conveyors in the FSD Subsystem and the Sorter Subsystem be locked out when work is being done on an induction lane’s “outside” belts (belts
1 and 5— see
the second “Warning” paragraph
reflected
in ¶
39
of the Findings of Fact), a similarly
concise
or even somewhat longer instruction could have been included allowing for locking out only the IND-DCC for the repair of an inside belt (numbers 2, 3 or 4)
without substantially lengthening or making more complex
an already
lengthy, detailed,
and
complex
written procedure. Such length and complexity
seem
nearly unavoidable
in
adequately
documenting the LOTO procedures for the APPS
considering
the
standard’s requirement that LOTO procedures be
set
forth
“clearly
and specifically.” §
1910.147(c)(4)(ii);
see also
54 Fed. Reg. at
36,670 (commenting that
the word “specific”
in paragraph (c)(4)
“emphasize[s]
the need to have a detailed procedure, one which clearly and specifically outlines the steps to be followed,”
and
observing that “[o]vergeneralization can result in a document which has little or no utility to the employee who must follow the procedure”).
Perhaps
even
more
significantly, there is no evidence that any of the MPEs at the Center had ever been informed of,
or trained on,
this supposedly established but unwritten LOTO procedure prior to the repair of belt I-3-2. It would have been
a logical impossibility for the MPEs to
have
used
an unwritten procedure
about
which they had
no prior knowledge or training.
Based on
Thompson’s
testimony and his written report, it is reasonably inferable
that
when
Thompson
advised
Hotchkiss
on the telephone, that
Thompson
had concluded
only that
the procedure
Hotchkiss
described to him
could be a permissible LOTO procedure
adopted under “local policy,”
and
that Thompson
did not analyze whether
that procedure conformed to any
established
LOTO procedures
that are
applicable across the entire USPS (namely, the MMO03715 that
Thompson had
authored, or the MS202 maintenance manual).
The
MMO-037-15
expressly allows for local policy to supplement its procedures, and the MS-202
repeatedly reminds MPEs
to follow any such
local procedures. The Center, however,
has
not developed
or
trained its MPEs on
any local energy control procedures
to augment either the MMO-037-15 or the MS-202. This is confirmed by uncontroverted testimony of MPEs that the procedure they were directed to use
had not previously been used
for a major repair involving the IND Subsystem such as the rebuild of
belt I-3-2. (Findings of
Fact
¶
42). This is
corroborated
further
by the testimony of the Center’s maintenance manager
(Pfanders)
that “normal procedure”
would have been for the APPS
not
to process mail during the repair of belt I32. 7 (T. 563; Findings of
Fact
¶
44). Rather than
endeavor to
develop a local LOTO policy
(and thereafter
training employees on that local policy as would
have
been
required by § 1910.147(c)(7)(iii) ), the acting plant manager
simply
decreed that the belt repair would be conducted by locking out INDDCC3 while the APPS continued to process mail. 8
b.
The APPS does not qualify for the exception
to the documentation requirement .
In any event, even if locking out the IND-DCC for the repair of an induction
lane’s
inside belt had been an established
unwritten
procedure at the time of the repair, the
procedure
would not
qualify for the exception to the documentation requirement
of § 1910.147(c)(4)(i). USPS’s argument in support of the exception is grounded in its flawed argument, rejected
supra , that
induction
lane 3 is a machine
that is
separate and independent of the APPS,
and
for which compliance with the LOTO standard
would be
assessed
independently of the
APPS. ( See
Resp’t Br.
4-5; Ex. R-30 at 18-19; T. 492-98). USPS has not met its burden to
establish by a preponderance of the evidence
that the APPS machine meets any of the eight elements of the exception to the documentation requirement
of § 1910.147(c)(4)(i).
C .
Employee
E xposure
Element .
At the direction of the Center’s acting plant manager, MPEs repaired
belt I-3-2 without using the established energy control procedures for the APPS. This is the violative condition to which
uncontroverted
evidence established
that
MPEs
conducting the repairs were
exposed, and
about
which they were reasonably concerned for their safety.
See
54 Fed. Reg at 36675 (“Because their safety requires them to follow the steps of the procedure precisely, these employees must be properly trained, and that training must be reinforced to assure their continued proficiency”). USPS argues mightily that the MPEs were not exposed to risk of injury from hazardous energy while conducting the repairs with
the INDDCC3 locked out and the APPS continuing to process mail. As
is
discussed
infra
in addressing whether the violation was proven to be “serious” within the meaning of
section 17(k) of the Act,
the Secretary failed to carry his burden to establish that
there
was substantial probability that death or serious physical harm could result
from the violative condition
proven here.
But that failure of proof is not relevant to the matter of whether employees were exposed to or had access to that violative condition. Some
MPEs at the Center
were
undoubtedly
exposed. C f.
Bunge Corp. v. Sec'y of Labor , 638 F.2d 831,
834
(5th Cir. 1981)
(observing that violation of a specification standard presumes a hazard and that whether
the
condition
resulting from the violation of a specification standard
was
hazardous
“is relevant only to whether the violation constitutes a ‘serious’ one”).
D .
Employer Knowledge
Element .
The acting plant manager had
actual knowledge of the violative
condition because
he ordered
that it happen
in the face of
continuing
protestations of MPEs that doing so violated
USPS’s
established energy control procedures. See
Phoenix Roofing, Inc ., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995) (an employer’s knowledge is directed to the physical condition that constitutes a violation)
aff’d,
79 F.3d 1146 (5th Cir. 1996);
Am. Eng’g & Dev. Corp ., 23 BNA
OSHC 2093, 2095 (No. 10-0359, 2012) (knowledge may be imputed to the employer through its supervisory employee);
Sanderson Farms, Inc. v. O SHRC , 964 F.3d 418, 428 (5th Cir. 2020) (“The Secretary need not prove that [the employer] understood that it was violating [the cited standard], but rather only awareness of the physical conditions constituting the violation.”)
E .
“ Willful ”
Classification.
For a violation that is done “willfully, ”
s ection 17(a) of the Act
allows
a penalty
of up to
ten times the maximum penalty for a
“ serious ”
or an “other-than-serious” violation. 29 U.S.C. § 666(a); 29 C.F.R. § 190 3 .15(d) (2017). A
violation is
“ willful ”
where the cited
employer
either
(1)
acted in “ conscious disregard ” for the requirements of the Act ,
or
(2)
acted with
“plain indifference ”
to employee safety . See A.E. Staley Mfg. Co. v. Sec'y of Labor , 295 F.3d 1341, 1351 (D.C. Cir. 2002)
( observing
that
“conscious disregard”
and “plain indifference” are alternative
means of proving willfulness).
Whether a violation is “willful” presents a question of fact. Bianchi Trison Corp. v. Chao , 409 F.3d 196, 208 (3d Cir. 2005) ;
Dayton Tire v. Sec’y of Labor , 671 F.3d 1249 , 1254
(D.C. Cir. 2012)
(determining that the
Commission’s finding of willfulness
lacked “ substantial supporting evidence ”). T he
Commission
has
described the contours of a “willful” violation
as follows:
A violation is willful if committed with intentional,
knowing
or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.
It is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting a violation; such evidence is necessary to establish any violation, serious or nonserious.
A willful violation is differentiated by a heightened awareness—of the illegality of the conduct or conditions—and by a state of mind—conscious disregard or plain indifference.
There must be evidence that an employer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard.
Without such evidence of familiarity with the standard's terms, there must be evidence of such reckless disregard for employee safety or the requirements of the law generally that one can infer that if the employer had known of the
standard or provision, the employer would not have cared that the conduct or conditions violated it.
It is therefore not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation; nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard, even though the employer's efforts are not entirely effective or complete.
Williams Ent er s .
Inc. ,
13
BNA OSHC
1249 ,
1256-57
( No. 85-355 , 1987)
(internal citations
omitted ) . 9
"The hallmark of a willful violation is the employer's state of mind at the time of the violation."
Kaspar Wire Works, Inc. ,
18 BNA OSHC 2178, 2181 (No. 90-2775, 2000),
aff'd , 268 F.3d 1123 (D.C. Cir. 2001). The S ecretary bears “burden of proof to show the requisite state of mind for willfulness . ”
Stanley Roofing Co. , 21 BNA OSHC 1462, 1466 (No. 03-0997, 2006 ). “ Where the requisite state of mind is manifested through the actions of supervisory employees, it
is imputed to the employer to the same extent as would be a supervisor's knowledge of violative conditions. ”
Cont'l Roof Sys., Inc. , 18
BNA OSHC
1070 ,
1071
( No. 95-1716 , 1997) , citing
Tampa Shipyards , 15 BNA OSHC
1533 ,
1539
(No.
86-360 , 19 92 )
(consolidated) ;
see also
Dayton Tire , 23 BNA OSHC 1247,
1266
(No. 94–1374, 2010)
(imputing
plant safety manager’s state of mind
to the employer),
rev’d
on other grounds,
671 F.3d 1249 (D.C. Cir. 2012) ;
Donovan v. Williams Enters . , Inc. , 744 F.2d 170, 180 (D.C. Cir. 1984)
(upholding willful citation where company pres ident was aware of
the
standard and decided to forego compliance).
“An employer’s motive for failing to
comply with the Act’s requirements
…
need not be evil or malicious in order to find a
violation willful.”
Kaspar Wire Works, Inc. , 18 BNA OSHC
at
2181 .
For the reasons described below, the Secretary has failed to meet his burden to establish that the violation was “willful”
on grounds of
either
“conscious disregard” or “plain indifference . ”
1.
Conscious
D isregard .
To
establish willfulness
because of
“ conscious disregard ”
( sometimes
called
“intentional disregard”),
“the Secretary must show that the employer
(1) had a heightened awareness of the applicable standard or provision prohibiting the conduct or condition and (2) consciously disregarded the standard. ”
Jim Boyd Constr., Inc. , 26
BNA OSHC
1109 ,
1111
(No.
11-2559 , 2016) ,
quoting
Fluor Daniel v. OSHRC , 295 F.3d 1232, 1239-40 (11th Cir. 2002) .
Put
differently ,
the Secretary was required to prove that a n official or employee
whose state of mind
is imputable
to USPS
“ was actually aware, at the time of the violative act, that the act was unlawful.”
Propellex Corp.,
18 BNA OSHC 1677, 1684 (1999) , quoted with approval
in
AJP Constr., Inc. v. Sec’y of Labor , 357 F.3d 70, 74 (D.C.
Cir.
2004) .
The requisite state of mind must exist
“ with regard to the specific circumstances of the violation in issue. ” Eric K. Ho , 20
BNA OSHC
1361 ,
1378
( No. 98-1645 , 2003)
(consolidated),
aff’d
401 F.3d 355 (5 th
Cir. 2005),
partially
overruled on other grounds by
E. Smalis Painting Co., Inc. , 22
BNA OSHC
1553 ,
1580-81
( No. 94-1979 , 2009) .
The
two
USPS
officials
whose states of mind bear on the issue of willfulness
are (1)
Mr .
Hotchkiss,
the acting plant manager, and
(2)
Mr. Thompson, the author of MMO-037-15 who is based in Oklahoma
and
who se expertise
Mr. Hotchkiss
sought out .
Both
Hotchkiss and Thompson
had actual knowledge
that
USPS had
established
energy control procedures
for the APPS
and
that
USPS required
MPEs
to
u se
those established procedures
in
the
repair
of
b elt I-3-2.
USPS’s requirement that MPEs
u s e
those
established procedures
conform s
to the requirement of the cited
standard, § 1910.147(d)(2).
While
both Hotchkiss and Thompson thus
possessed a heightened awareness
of the applicable standard , t he evidence is insufficient to establish that
either of them ,
whether
considered
individually
or
in a
collective
sense , consciously disregarded the cited standard
in connection with the repair
of
b elt I-3-2 .
As for Thompson,
even though he was based in Oklahoma and had no operational or supervisory responsibilities for the repair of Belt I-3-2, if the evidence
showed that
he
intended
to
assist
Hotchkiss
in
directing M PEs to
u se
a
LOTO
procedure that
Thompson knew w as contrary to
USPS’s
established procedures (i.e., in violation of § 1910.147(d) (2) ) ,
or that he intended to induce Hotchkiss to do so,
such a state of mind would
evince
conscious disregard that
could be imputed to USPS .
Cf.
Donovan v. Williams Enters . , Inc. , 744 F.2d
at
180
(upholding willful citation where company president was aware of the standard and decided to forego compliance).
But t he evidence fails to establish that Thompson
possessed such
knowledge or
intent.
Thompson became
directly
involved in the repair of
b elt I-3-2 by
dint
of Hotchkiss’s decision to seek him out
and
mine his knowledge and expertise about the APPS. Th ompson’s only direct involvement in Hotchkiss’s decision
to direct
that
the repair be done by
locking out
the
IND DCC 3
while the
APPS continue d
to
run
was th e ir
single
telephone conversation
on
October
18 , 2016 .
K ey to assessing whether
Thompson acted in conscious disregard of the cited standard
involves determining (1) the question that Hotchkiss posed to Thompson, and (2) Thompson’s response to that question. For the reasons described below, the most reasonable inference from the evidence is that Hotchkiss asked Thompson whether locking out the IND-DCC-3 for the repair would be safe . The weight of the evidence is insufficient to establish that Hotchkiss asked
Thompson
whether doing so conformed to established LOTO procedures. Similarly, the most reasonable inference from the evidence is that Thompson told Hotchkiss that he believed it would be safe to lock out the IND-DCC-3 for the repair . More importantly, the
weight of the evidence does not support a finding that
Thompson consider ed
whether
locking out
the
IND DCC 3 for the repair
conformed to
the
established LOTO procedures , or that Thompson had opined on that question in
speaking
with Hotchkiss . T he evidence relating to the precise content of th e
telephone conversation
is
detailed below .
The re is no
of evidence of the
duration of
the
telephone conversation . And t he only
detailed
evidence of the content of that conversation
is provided by
Thompson. Although
the email that
Hotchkiss
sent to his staff
after the telephone conversation
strongly suggests
Thompson
had told
him
that locking out the IND-DCC-3 was consistent with
existing LOTO
procedures
( see
Findings of Fact ¶
60 ) , neither Hotchkiss nor Thompson testified that Thompson
had
said
this in the telephone conversation.
Hotchkiss did not describe in his testimony precisely what
question he had posed to
Thompson , nor did he testify to
precisely what Thompson
said to h im. Rather,
Hotchkiss
testified simply that he contacted Thompson “for the purpose of making sure” that he “was doing the right
thing” (T. 426), and that based on Thompson’s response he believed he was “doing everything in accordance with regulations and safety and procedure that [he] needed to do.” (T. 425). In response to questions on cross-examination regarding whether Hotchkiss had described to Thompson the energy control procedures that managers were instructing MPEs to follow, Hotchkiss testified
(in a tone
that seemed to manifest some
misplaced
umbrage
at having been asked ) : “No. I
don't
have to describe anything to Mike Thompson. He already knows it all.” When asked essentially the same question a second time, he reiterated: “I don't need to describe anything to Mike. He already knows it all.” (T. 435).
Hotchkiss
essentially deferred completely to
Thompson with respect to
any matter relating to the A PPS . Hotchkiss
believed
(with
ample
justification )
that
Thompson “basically wrote every book there is to write on the APPS machine,” and so Hotchkiss
testified his approach to the APPS is that he
does not “do anything technical … unless I get the advice of [Thompson].” (T. 424-25).
In contrast to Hotchkiss’s testimony,
Thompson provided some detail regarding the content of
their
telephone conversation. Thompson testified that Hotchkiss simply asked him “if it was possible, if it was safe to lockout at the induct” (T. 446), and that
before
answering he
asked Hotchkiss a series of questions about the way the repair would be conducted. (T. 446-48). Thompson’s written report indicates that Thompson
concluded t hat locking out at the IND DCC 3 would be permissible as a
local
LOTO procedure. ( See
Thompson Report, Ex. R-30 at 19, stating “I did not find issue with local policy allowing for this repair using the method described.”). There is nothing in Thompson’s written report that states that in the ir
telephone conversation that
he
told Hotchkiss that locking out the IND-DCC-3 conformed with the requirements of MMO 037 15 or other USPS wide LOTO
procedure .
(Ex. R-30).
Rather, in deposition testimony
( with
which
Thompson
was effectively impeached at the hearing
and which is
more credible than his somewhat
contrary hearing testimony
[ see
footnote
6 ,
supra ;
T . 504-05 ] ) ,
Thompson admitted that he advised Hotchkiss “from a technical point of view” and that he “did not make [the] determination” that locking out the IND-DCC-3 “would comply with the requirements in MMO 037 15.” (T. 505).
T he whole of the evidence establishes that
Thompson’s response to Hotchkiss’s inquiry was grounded in Thompson’s belief
tha t
MMO 037 15 permitted
the Center to
develop and
implement
a local LOTO p rocedure
that would
allow
for the lock out of the IND-DCC for the repair of an
i nduction
l ane’s “inside” belts
(belts 2, 3 or 4) . (See Findings of Fact ¶
58 ).
Attachment 4
provides
that
locking out the IND- M CC
for “conveyor repairs” and
“to facilitate belt, bearing or roller replacement” (all of which
was
done in connection with the repair of belt I-3-2)
i s
“recommended”
and that locking out the IND- D CC
is
“ not
recommended.” 10 Thompson could have reasonably concluded that under the circumstances that Hotchkiss described to him, locking out at the IND-DCC-3 would not
violate the letter of MMO 037 15 because
the MMO
did not prohibit
employing
that means of energy control, but rather
stated only that doing so was “not
recommended .” 11
There is no evidence that Thompson was
nearly as
familiar with
the provisions of the voluminous maintenance manual, the MS 202,
as he was with MMO 037 15, which he wrote. The MS-202
contain s
step-by-step actions for certain
maintenance activities that had to have been performed as part of completing the
repair of
b elt I-3-2 . For some of those maintenance activities, the MS-202 instructed locking out the IND-MCC ,
as well as
instruct ing
MPEs to
follow any
local LOTO procedures. Assuming
Thompson
was recalling the
“recommended/not recommended” language that he used in MMO-037-15
when he spoke to Hotchkiss , there is no evidence to support the finding that he
also
had a present awareness
that provisions in
the
MS-202
instructed MPEs to lock out the IND-MCC for
at least s ome aspect s
of the
belt
repair. The Center
could conceivably have developed a local LOTO policy
consistent with MMO-037-15 and MS-202
that would have allowed for locking out the IND-DCC for this type of
conveyor repair . 12
It is apparent from T hompson ’s written report that he contemplat ed
the Center
repairing belt I-3-2 under a such local procedure , which he believed would be a safe procedure .
For these reasons, t he evidence
is insufficient
to
establish
that
Thompson
manifested conscious
or intentional
disregard
of
the
requirements of § 1910.147(d)(2)
when he
opined to Hotchkiss that the repair of Belt I-3-2 could be done safely by locking out the IND-DCC-3.
As for Hotchkiss,
he
either
(1)
accurately
understood what Thompson said
to him
( that the repair could be done safe l y by locking out the IND-DCC-3 )
and
then
deliberately
mischaracterized
Thompson
to have said that
USPS’s e stablished LOTO procedures allowed for locking out
the IND-DCC for the belt repair ,
(2)
recklessly misconstrued what Thompson said , or (3)
carelessly
misconstrued what Thompson
said .
The evidence is insufficient to establish that
Hotchkiss
deliberately mischaracterized what
Thompson told him .
The evidence is also insufficient to establish that Hotchkiss
was
“ actually aware ”
at the time that he
ordered the repair be done by locking out the IND-DCC-3 ,
that USPS’s established
LOTO procedures
prescribed otherwise . See
Propellex Corp.,
18 BNA OSHC
at
1684 ( proving conscious disregard requires establishing
the employer
“ was actually aware, at the time of the violative act, that the act was unlawful” ).
In view of the
indecisive
language used in Attachment 4 about locking out the IND MCC
( “recommended” )
versus locking out the IND DCC ( “not recommended” ) for
“conveyor repairs” and
“belt, bearing, or roller replacement ” in the IND Subsystem , and considering
further that
there is no evidence that Hotchkiss was
actually
aware that some provisions of the voluminous MS-202
maintenance manual
identified
the IND-MCC
to be locked out
for
certain
maintenance actions that
were integral to the belt repair ,
the
whole of the
evidence fails to establish that
in directing
the IND DCC 3 be locked out
for the repair of
b elt I-3-2
Hotchkiss
was
actually aware that established LOTO procedures did not permit
doing so . The evidence is thus insufficient to establish that Hotchkiss
consciously disregard ed
the requirements of the cited standard .
- Plain
I ndifference .
A cited employer that
is aware of the cited standard
but
has not been
shown to have
conscious ly
disregard ed
it,
may
nevertheless
be found to have
willfully violated
the
standard
upon a showing that
the employer acted with plain indifference
to employee safety or
to
the requirements of the Act . Dayton Tire , 671 F.3d
at
12 56-57
( assessing whether an
employer with a
heightened awareness of the
cited LOTO standard
was plainly indifferent to the requirements of the Act ). The D.C. Circuit has
remarked
that
“it takes a lot to be plainly indifferent . ”
Id.
at
1256.
As regards Thompson, the evidence is insufficient to establish
that
in his communications with Hotchkiss he was
plainly
indifferen t
to
the requirements of the Act
or employee safety . Thompson’s
role was that of
consultant to
Hotchkiss , and he
had no operational responsibility for the Center’s
maintenance operations
or
its
u se
of established LOTO procedures. The evidence establishes that
in advising Hotchkiss , Thompson
believed
that
locking out the IND-DCC-3
for the repair of
b elt I 3 2
would not expose MPEs to the risk of injury from hazardous energy and
that
doing so
would
be a permissible local LOTO procedure .
(T.
445-48;
Ex. R-30 at 19 , stating “ I did not find issue with local policy allowing for this repair using the
method described ”) . As discussed above, t he evidence does not establish that he advised Hotchkiss
that doing so was permitted under the established
USPS-wide
LOTO procedures
(i.e., MMO-037-15 and MS-202) .
Hotchkiss,
the acting plant manager,
had operational responsibility
for
the belt repair
and
assuring that MPEs
u sed
established LOTO procedures
for that repair . When MPEs raised safety concerns, Hotchkiss took the initiative to
consult with the author of the APPS-specific LOTO procedure, who
expressed the view that
locking out the IND-DCC-3 during the repair of Belt I 3 2 would not expose employees to the risk of injury from hazardous energy. Hotchkiss
seems to have heard what he wanted to hear from
Thompson .
H e did not
endeavor to
make an independent judgment that locking out the IND-DCC-3 for the repair was permitted by established LOTO
procedures. Rather, he seemed to assume simply that it was, since the author of the procedure had told him th at doing so was
safe. (See T. 434-35). Had Hotchkiss exercised reasonable diligence, he ought to have comprehended that his directive to lock out the IND DCC 3 was contrary to the APPS-specific LOTO procedures, notwithstanding Thompson’s
conclusion
that doing so
would be safe .
Cf. Dayton Tire , 671 F.3d at
1255-56
(reversing Commission’s
finding
that
a
safety manager who had relied on
a
LOTO assessment
conducted by her p redecessor ,
and
who
had not
conduct ed
her own
independent assessment ,
was “plainly indifferent” to the requirements of the Act).
While Hotchkiss
seems to
have
erroneously
understood
Thompson to have said
that
locking out the IND-DCC-3
for the repair of Belt I-3-2
would not contra vene
the established
APPS specif ic
LOTO procedures, th e circumstantial evidence is
insufficient to establish
that
Hotchkiss was reckless in
arriving at that
erroneous
understanding . The evidence is thus
insufficient to
establish
that
Hotchkiss
acted with
plain indifferen ce
to the requirements of the Act
or employee safety .
See
Williams Ent ers.
Inc. ,
13
BNA OSHC at1256-57
(expressing the “plain indifference” ground in terms of “reckless disregard for employee safety”);
see also
Dukane Precast, Inc. v. Perez , 785 F.3d 252, 256 (7th Cir. 2015)
(stating that a showing of “plain indifference”
requires proof
that the employer “ was reckless in the most commonly understood sense of the word ”) ;
c f.
Dayton Tire , 671 F.3d at 12 56 -57
(noting that while
a
safety manager “could have done more” in response to employee concerns regarding LOTO, “ she did not do nothing , ”
and that while
the
safety manager’s review of
her
employer’s LOTO program done at the urging of a senior corporate safety official “ may not have been as thorough as the Commission would have liked, it did not display plain indifference ”).
F .
“Serious”
Classification .
The Secretary ’s complaint
alleged
that in addition to the violation having been “willful,” it was also
“ serious. ” (Complaint ¶
6 ). Section 17(k) of t he Act provides that a violation is
“ serious ”
if
“ there
i s a substantial probability that death or serious physical harm could result ”
from the violative condition
or
practice .
29 U.S.C. § 666(k);
Consol. Freightways Corp ., 15 BNA OSHC 1317, 1324 (No. 86-351, 1991).
“This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.”
Oberdorfer Indus. Inc.,
20 BNA OSHC 1321, 1330-31 (No. 97-0469, 2003) (consolidated) (citation omitted) ;
see also
Sec ’ y of Labor v. Trinity Ind u s. , 504 F.3d 397, 401 (3d Cir. 2007).
In contesting the citation, USPS
put
considerable effort
into backing
its
assertion that the
MPEs who repaired
b elt I-3-2 with the IND-DCC-3 locked out and
the APPS continuing to process mail were not a risk of being injured. The undersigned agrees that the Secretary failed to carry his burden to establish
a substantial probability that
the
precise
LOTO violation
established here was likely to result in
an
employee sustaining
serious physical harm
in the event of an accident . While there is
reliable
evidence that MPEs
working on the belt repair while the APPS continued to operate would have been
exposed to
a
struck - by
hazard from
mail items
that might
tumbl e
o ver the guards of
adjacent conveyors
(about 66 inches above floor level) , th at
evidence
fails to
establish
that such a struck - by hazard was likely to result in
death or
serious physical harm ,
such as a severe laceration .
(T. 475-76).
See
Lisbon Contractors, Inc.,
5 BNA OSHC 174 1 , 1742 (No.
11097 ,
1977) (stating that bruises and contusions do not support a classification of “serious”) ;
Kaspar Electroplating Corp. , 16 BNA OSHC 1517,
1522
(No. 90-2866, 1993)
(severe laceration constitutes serious physical harm) ;
S. Hens, Inc. v. O SHRC , 930 F.3d 667, 682 (5th Cir. 2019)
( “W e
have construed
‘ serious ’
injury to include broken bones, crushed toes, and chemical burns ”). Similarly, the evidence of exposure to adjacent moving conveyors and
exposure to
flying
machine
parts in the event of
certain machine
failures was insufficiently weighty to establish the violation
as serious, particularly in view of
reasonably plausible
countervailing evidence presented by USPS. (E.g. ,
T.
470-80).
Since the violation has not been established to have been “serious” as defined in section 17(k) of the Act, it is deemed “ not to be of a serious nature ” (in the language of § 17(c) of the Act),
also
more
often described as
“other - than - serious”
( in the terminology
of the Secretary ) .
A
violation is considered other - than - serious when “there is a direct and immediate relationship between the violative condition and occupational safety and health, but not of such relationship that a resultant injury or illness is death or serious physical harm.”
Crescent Wharf and Warehouse Co. , 1 BNA OSHC 1219, 1222 (No. 1, 1973) .
G.
Penalty .
Section 17( c ) of the Act provides that
a “penalty may be assessed ” for an other-than-serious violation (in contrast to section 17(b), which provides that a penalty for a serious violation “shall be assessed”).
29 U.S.C. § 666( b ) –(c) .
The
maximum
penalt y for the other - than - serious violation
established
here is $12,675. 29
C.F.R. § 1903.15(d)(4) (2017). The Commission and its judges conduct
de novo
penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria. Valdak Corp ., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995)
aff’d , 73 F.3d 1466 (8th Cir. 1996);
Allied Structural Steel , 2 BNA OSHC 1457, 1458 (No. 1681, 1975).
Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the Commission give “due consideration” to four criteria: the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its prior history of violations. Specialists of the S. ,
Inc. , 14 BNA OSHC 1910 (No. 89-2241, 1990). Gravity is the primary consideration among these four statutory
criteria and
is determined by “such matters as the number of employees
exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.” J.A. Jones Constr. Co. ,
15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).
Even though this violation was not proven to have been “serious” within the meaning of section 17(k) of the Act,
the
“other-than-serious” violation
established here
was
grave. There can be little doubt that
the Center’s management would have deferred to the MPEs judgment on what to lock out
if that judgment had
allowed for the APPS to continue to process mail
during the repair .
The assistant area director
of
OSHA’s Allentown, Pennsylvania, area office provided a lucid description of the safety
dangers inherent in an employer
overrid ing
its
established
LOTO
procedures . (T. 387-90). His
stated
concerns echo comment ary in the
LOTO standard’s
preamble ,
wherein OSHA
describe d
management ’s
vital role
in
maintaining the integrity of a LOTO program by
promoting
adherence
to established procedures :
OSHA believes that employee
understanding
and utilization of a
standardized procedure are critical to
the success of a lockout or tagout
program.
Without these elements and
commitment from management, the
effectiveness of the program can be
seriously compromised.
Proper training
in the procedure, and explanation of
how it works and why, are crucial to its
implementation by the employees.
The development and documentation of energy control procedures is of little use unless the employer requires all authorized employees to utilize the procedures that have been provided whenever they are servicing or maintaining machines or equipment.
54
Fed. Reg. at 36 , 653
and 36 , 667 . And in the context of describing successful tagout programs, the preamble noted the importance of both supervisor and employee discipline in maintaining the integrity of such a program: “[D] iscipline
…
appears to be
the most critical to the success of these
programs; the companies with effective
tagout programs apply various types of
disciplinary action to both supervisors
and employees who violate the tagout
procedures. ” 54 Fed. Reg. at
36 , 655.
The Center’s MPEs had been well
trained
to follow established LOTO procedures
or
risk
discipline for failing to do so. Management’s
override of those established procedures for the repair of
belt I-3-2
gave rise to
legitimate
concerns by MPEs that
the procedure they were being required to use
was unsafe.
Such violative
conduct
undermines
employee reverence
for
and confidence
in a LOTO program, to the serious detriment of
the efficacy
and
integrity of
this important
program.
In view of the size of
USPS
and the many complex machines that it operates and maintains throughout the country, the maximum penalty available for this
grave
other-than-serious violation is
appropriate. Accordingly, a penalty of $12,675 is assessed.
ORDER
The foregoing decision constitutes findings of fact and conclusions of law in accordance with
Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). If any finding of fact is
in actuality a
conclusion
of
law
or
any
legal
conclusion
stated
is
in
actuality
a
finding
of
fact,
it
shall
be
deemed so, any label to the contrary notwithstanding.
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED
that Citation 1,
Item
1,
alleging
a
violation
of
29
C.F.R.
§
1910.147(d)(2) is AFFIRMED,
is classified as an “other-than-serious” violation, and
that a
penalty of $12,675 is
ASSESSED.
_ /s/
WILLIAM S.
COLEMAN
Administrative Law
Judge
Dated:
February 16, 2021
"
1
The following glossary of certain acronyms used in this decision is provided for reference:
•
IND-MCC: Main Control Cabinet
for
Induct ion Subsystem
• IND-DCC -3 : Distributed Control Cabine t for
i nduct ion
lane no. 3
•
Belt I-3-2: Belt no. 2 of induction lane no. 3
•
MPE: Mail Processing Equipment mechanic
2
The diagram below (Ex. R-30 at 8) reflects a bird’s eye view of the
i nduction area and its spatial relation to the shoe sorter (which is part of the FSD Subsystem) and the sorter train (which is part of the Sorter Subsystem). The large arrows superimposed on the shoe sorter and the sorter train indicate the direction that mail items flow.
3
The “sic” connotes the final sentence being a sentence fragment. It may be that the final two sentences of this paragraph were intended to be written as a single sentence, with a colon instead of a period at the end of the first sentence, in the following manner: “ It is recommended that the Main Control Cabinet (MCC) enclosures be used as isolation points for conveyor repairs : the
Induct Main Control Cabinet (IND-MCC-X) for Induction repairs and the Feed, Singulation & Distribution Main Control Cabinet (FSD-MCC-X) for FSD repairs for each side of the APPS. ”
( See
Thompson testimony at T. 513-14).
4
References in this
Discussion section
to a component being “locked out” presupposes
that
the component had been de-energized and isolated from the energy source before being locked out. See
§ 1910.147(d)(2)–(4).
5
USPS’s argument
that no MPEs were endangered
raises the issues of (1) whether any of the MPEs repairing
b elt I-3-2 had access or were exposed to the alleged violative condition, and (2) whether any MPEs were exposed to the risk of
serious
injury because of their access or exposure to the alleged violative condition. These matters are
addressed
infra
in connection with discussion of the third element of the Secretary’s burden of proof and in connection with whether the violation was “serious”
as defined in
section
17 ( k ) of the Act . 29 U.S.C. § 666(k).
6
Thompson provided this testimony in a discovery deposition, with which he was effectively impeached at the hearing. (T. 505). That deposition testimony bears greater indicia of reliability and is accorded greater weight than that portion of his hearing testimony that was somewhat contrary (e.g., T. 504) to his deposition testimony on this point. Cf.
Fed. R. Evid. 801(d)(1)(A) (providing that a declarant’s prior inconsistent statement given under penalty of perjury in a deposition is not hearsay), and Fed. R. Evid. 801(d)(2) (providing that opposing party’s statement offered against that party is not hearsay).
7
Mr. Pfanders gave that testimony in a discovery deposition, with which he was effectively impeached at the hearing. Like the deposition testimony of Mr. Thompson addressed in
the preceding
footnote, this deposition testimony bears greater indicia of reliability and is accorded greater weight than other of
his
hearing testimony that was somewhat contrary (e.g., T. 562) to the deposition testimony presented.
8
The acting plant manager ultimately allowed MPEs who believed the procedure was unsafe to opt out of participating in the repair. C f.
Armstrong Steel Erectors, Inc. , 18 BNA OSHC 1630, 1633, n.4 (No. 97-0250, 1999) (stating that “[r]esponsibility under the Act for ensuring that employees do not put themselves into any unsafe position rests ultimately upon each employer, not the employees, and employers may not shift their responsibility onto their employees” ).
9
The Third Circuit and the D.C. Circuit are the two courts of appeals to which review of a final order of the Commission may be sought in this matter pursuant to section 11 of the Act. 29 U.S.C. § 660. Both of those courts have described a “willful” violation using articulations that are slightly different from the Commission’s, but neither court has indicated that its respective articulation differs substantively from the Commission’s. For example, in
Williams Enter prises
quoted above, the Commission expresses the “plain indifference” ground in terms of “indifference to employee safety” and also as “reckless disregard for employee safety
or the requirements of the law generally .” 13 BNA OSHC at 1256-57. In contrast, the D.C. Circuit has expressed the “plain indifference” ground in terms of “indifference to the Act’s requirements.” See
Dayton Tire v. Sec’y of Labor , 671 F.3d 1249 , 1254
(D.C. Cir. 2012)
(describing a willful violation to be
“an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements ”). Even so, the D.C. Circuit in
Dayton Tire
did not express any disagreement with the Commission’s “plain indifference to employee safety” formulation, which the Commission had recited in its underlying decision in that matter. Dayton Tire , 23 BNA OSHC 1247, 1266
(No. 94–1374, 2010) ,
rev’d
on other grounds,
671 F.3d 1249 (D.C. Cir. 2012). Similarly, the Third Circuit has stated that its formulation of the standard for a “willful” violation does not differ substantively from that of the D.C. Circuit or other federal courts of appeals. See
Babcock & Wilcox Co. v. OSHRC , 622 F.2d 1160, 1167 (3d Cir. 1980) (agreeing with D . C .
Circuit ’s decision in
Cedar Constr .
Co. v. OSHRC , 587 F.2d 1303 , 1305
[ D.C.
Cir.
1978 ]
that there is “little if any difference” between
the Third Circuit’s approach to willfulness and the approaches of
other courts ).
10
In his testimony,
Thompson
described his reasons for using
this
“recommended/not recommended”
language
in Attachment 4. (T. 507-13). The reasons he gave are
not at all self-evident
from the text of
MMO 037 15 . Rather, his testimony indicates his implicit recognition that the objective meaning of this language in Attachment 4 did not reflect his subjective intent when he wrote it. In other words, Thompson did not mean for Attachment 4 to say what it actually says. Thompson testified that he originally utilized that “recommended/not recommended” language in drafting Attachment 2, which relates to the FSD Subsystem, and that for the sake of consistent language he reprised that same language in Attachment 4. He testified that he did not intend that language to apply to the repair of the “inside” induction lane conveyor belts (belts 2, 3 and 4), but that intent simply is not
apparent
in the actual language he used in Attachment 4. ( T.
511-12;
Ex. R- 30 at 34-36).
11
Section 1910.147(c)(4)(ii) of the LOTO standard requires that LOTO procedures “ clearly and specifically
outline the scope, purpose,
authorization, rules, and techniques to
be utilized for the control of hazardous
energy .” (emphasis added). The indecisive “recommended/not recommended” language employed in Attachment 4 of MMO-037-15 seems neither particularly “clear” nor “specific,” and that language seems to have been a substantial factor in the chain of events leading to the violation here. However, the Secretary did not cite USPS for violating § 1910.147(c)(4)(ii), and USPS’s conformance to the requirements of that provision of the LOTO standard (which certainly is a performance-oriented provision) is not adjudicated herein.
12
If the Center’s management had endeavored to develop and implement a local LOTO procedure that permitted locking out an IND-DCC for the repair of an induction lane’s “inside” belt, it should be noted that this decision does not find that any such local p rocedure
would necessarily have conformed to the requirements of the LOTO standard. This decision simply recognizes that it was at least plausible on this record that such a local LOTO procedure might have been appropriately developed and implemented, and that if this had been done before the repair of belt I-3-2, the violation here of USPS not u sing
its established LOTO procedures in the repair would not have been proven. Cf.
T .
387-90
( testimony of the OSHA assistant area director
that was critical of
USPS ’s failure
to formally develop, implement, and train employees on the LOTO procedure
the
MPEs were directed to use
in the belt repair ) .
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