General Motors Corporation, Delco Chassis Division
Lockout citations vacated
Apply this precedent to your situation
This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
General Motors employees serviced automated manufacturing equipment without locking out its energy sources, relying instead on interlocked gates, emergency stops, and machine controls. The Commission held that the lockout/tagout standard applied only when unexpected energization, startup, or release of stored energy could occur and cause injury. It found that the machines required lengthy, multi-step restart sequences with audible and visible warnings, giving employees time to leave the danger zone. The Commission therefore affirmed the judge's vacatur of the three challenged lockout items and accepted the Secretary's withdrawal of two written-procedure items. Chairman Weisberg dissented, reasoning that the standard generally required deenergization and lockout before servicing and that an employee injury in one module demonstrated the hazard.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.147(c)(4)(i), 1910.147(c)(4)(ii), and 1910.147(d)(4)(i).
- Outcome: Vacated. The three lockout items under review were vacated, and the Secretary's withdrawals of two written-procedure items were accepted.
- Key point: Under the Commission's reading, the Secretary had to prove that hazardous activation could occur without sufficient warning, not merely that powered equipment was serviced without lockout.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR,
Complainant,
.
0
v. .
OSHRC DOCKET NOS.
..
.
91-2973, 91-3116 & 91-3117
GENERAL MOTORS CORPORATION, :
DELCO CHASSIS DIVISION, ..
Respondent.
DECISION
BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
At issue is whether former Commission Judge Edwin G. Salyers erred in vacating
citations that alleged failure by General Motors Corp., Delco Chassis Div. (“GM”) to
deenergize and lockout machines under the lockout/tagout standard, 29 C.F.R. 0 1910.147.l
‘In each of these cases, GM was cited for failure to require its employees to lockout
electrically-powered machines prior to servicing or maintenance. The machines were used
to manufacture automotive parts at GM’s plants at Vandalia and Dayton, Ohio. In Docket
No. 91-2973, the cited standard is section 1910.147(d)(4)(i). That section provides:
(d) Application of control. The established procedures for the
application of energy control (the lockout or tagout procedures) shall the
cover the following elements and actions and shall be done in the following
sequence:
. &@,ockzoutor tagoutdevke application. (i) Lockout or tagout devices
shall be affixed to each energy isolating device by authorized employees.
(continued...)
1995 OSHRC No. 33
2
We find that, by its plain meaning, the standard applies only to those machines and pieces
of equipment for which energization or start up would be unexpected by employees. The
Secretary has argued for an interpretation that would have the Commission ignore this
requirement. We agree with the judge, however, that the standard requires the Secretary
to establish that a cited piece of equipment or machinery presents the hazard of unexpected
energization, and that he failed to do so in each of the three cases here. We thus affirm the
judge’s decision.2
‘(...continued)
Section 1910.147(b) defines an “energy isolating device” as a “mechanical device that
physically prevents the transmission or release of energy.” Examples are “a manually
operated circuit breaker [or] a disconnect switch.” That definition also provides that “[plush
buttons, selector switches and other control circuit type devices are not energy isolating
devices.” A “lockout device” is a lock or other positive means that holds an energy isolating
device in a safe position so that a deenergized machine or equipment remains deenergized.
Id. In Docket Nos. 91-3116 & 91-3117, the cited standard is section 1910.147(c)(4)(i). That
section provides:
(c) General--(1) Energy controlprogram. . . .
i4j Energy control procedure. (i) Procedures [including a lockout
procedure] shall be developed, documented and utilized for the control of
potentially hazardous energy when employees are engaged in the activities
covered by this section.
The Secretary has withdrawn the other alleged violations that were directed for review.
Those items alleged deficiencies in GM’s written lockout program under section
1910.147(c)(4)(ii), in Docket Nos. 91-3116 and 91-3117. We accept the Secretary’s
withdrawal of those items.
2The pre enforcement challenges to the validity of the lockout/tagout standard recently were
rejected.- ,!izfemational Union, UAW v. OS”, 37 F.3d 665 (D. C. Cir. 1994) (“UAW v.
OsEtA II”). The court found “that OSHA’s current interpretation of its statutory authority
to issue safety standards is consistent with the nondelegation doctrine and that its
explanations of the other disputed decisions are adequate[.]” Id. at 668. In 1991, the court
had remanded the standard to OSHA for a supplemental statement of supporting reasons,
on the ground that the agency’s interpretation of its authority was not consistent with the
nondelegation doctrine. International Union, UAWv. OSIU, 938 F.2d 1310 (D. C. Cir. 1991)
(“UAW v. mm r’).
3
DISCUSSION
I0 The application of the standard .
The lockout/tagout standard begins with a scope provision, the first sentence of
which reads as follows:
This 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.
29 C.F.R. 5 1910.147(a)(l)(i) (emph asis in original). The Secretary’s case is premised upon
his “official interpretation” of this sentence. Transposing the operative language, the
Secretary frames the applicability inquiry as follows: “whether injury could occur in the event
of an unintended energization, start up, or release of stored energy.” Having thus
interpreted the scope provision, the Secretary reasons that the lockout/tagout standard
applies regardless of “how likely or remote the chances of’ unexpected energization are and
argues that any other conclusion “constitutes nothing less than a prohibited challenge to the
wisdom of the standard.”
Like all other Commission judges whose decisions have been cited to US,~Judge
Salyers concluded that the language in question renders the standard inapplicable whenever
employees are given sufficient notice of energization to allow them to vacate the zone of
danger. In situations where the meaning of regulatory language is “not free from doubt,”
the Commission, like any reviewing court, must give effect to the Secretary’s reasonable
interpretations of his regulatory language. CJ, e.g., Matin v. OSHRC (CF & I Steel Cop.),
499 U.S. 144, 150 (1991).
In determining whether the language of a standard is ambiguous, we first look to its
text and structure. When the statute speaks with clarity, in all but the most extraordinary
circumstances, judicial inquiry is ended. E.g., Estate of Cowart v. Nicklos Drilling Co., 112 S.
Ct. 2589, 2594 (1992). Only if we can make no initial determination need we refer to
contemporaneous legislative histories of the standard. If the question remains unsettled, we
3Amzco Steel Co., OSHRC Docket No. 93-641 (December 20,1993) (ALJ Loye); CaterpilLar,
Inc., 92 OSAHRC 67/C8 (Docket No. 92-127, 1992) (ALJ Barkley). See also MetaL
shredders, Inc. 92 OSAHRC 17/A2 (Docket No. 90-2273,1992) (AIJ Burroughs) (work that
was not performed under lockout in that case was not servicing or maintenance, and all
affected employees expected equipment to start up).
4
look to the reasonableness of the interpretation of the agency that administers the
challenged standard. Kiewit Western Co., 16 BNA OSHC 1689, 1693, 1993 CCH OSHD
II 30,396, p. 41,940 (No. 91-2578, 1994) (citing Unarco Commercial Prods., 16 BNA OSHC
1499, 1502-03, 1993 CCH OSHD V 30,294, p. 41,732 (No. 89-1555, 1993)).
Examining further the text of the standard, not only does the very first provision
emphasize that its scope is limited to “unexpected” energization, startup, or release of stored
energy, but the definition of covered maintenance and servicing contains the same limitation:
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.
Section 1910.147(b) (emphasis in original)! OSHA literally underscored the importance
of the standard’s limitation to “unexpected” energization, etc., by italicizing that word in
those two provisions--a form of emphasis that OSHA rarely uses. The same limitation is
restated in the general requirement for an energy program, section 1910.147(c)(l), which the
Secretary describes as “[plerhaps the clearest summary of the requirements of 8 1910.147.”
The employer shall establish a program consisting of energy control
procedures, employee training and periodic inspections to ensure that before
any employee performs any servicing or maintenance on a machine or
equipment where the unexpected energizing staa up or release of stored energy
could occur and cause injury, the machine or equipment shall be isolated from
the energy source, and rendered inoperative.
(Emphasis added.)5
4GM has not conceded that its employees were engaged in “servicing and/or maintenance”
within the meaning 5 1910.147(b), because in its view that definition is limited to activities
where inadvertent activation of the machine or equipment could occur and cause injury.
50ther provisions are to the same effect. The stated purpose of the standard is as follows:
This section requires employers to establish a program and utilize procedures
for affixing appropriate lockout devices or tagout devices to energy isolating
devices, and to otherwise disable machines or equipment to prevent unexpected
energikation, start-up or release of stored energy in order to prevent injury to
employees.
(continued...)
5
We find that the standard clearly and unambiguously applies only where the Secretary
shows that unexpected energizing, start-up or release of stored energy could occur and cause
injury. Under these circumstances, we find it unnecessary to look outside the standard itself
for guidance as to its meaning. E.g., Brown v. Gardner, 115 S. Ct. 552, 556 (1994) (long-
standing Veterans’ Affairs Department interpretation of statute overruled--“the text [of the
statute] and reasonable inferences from it give a clear answer against the Government, and
that, as we have said, is ‘the end of the matter”‘ ) (quoting Good Samaritan Hosp. v. Shalala,
113 S.Ct. 2151, 2157 (1993)); Unarco, 16 BNA OSHC at 1503 & n.3, 1993 CCH OSHD at
p. 41,732 & n.3. See generally 2A Singer, Sutherland Stat. Const. 5 46.01 (5th ed. 1992)
(citing Caminetti v. United States, 242 U.S. 470 (1917) (“[‘It
I is elementary that the meaning
of a statute must, in the first instance, be sought in the language in which the act is framed,
and if that is plain [and if the statute is constitutional], the sole function of the courts is to
enforce it according to its terms”)).
However, even if we were to look beyond the standard’s terms, we find any ambiguity
is clarified in the legislative history and that the Secretary’s interpretation is unreasonable.
The preamble to the standard expressly limited its applicability to situations where
“unexpected energization,” etc.,6 is a hazard. For example, the opening summary of the
preamble states:
This standard addresses practices and procedures that are necessary to disable
machinery or equipment and to prevent the release of potentially hazardous
energy while maintenance and servicing activities are being per$omed.
Control of Hazardous Enew Sources (LockoutJTagout): Final Rule, 54 Fed. Reg. 36,644
(1989), as corrected by 55 Fed. Reg. 38,677 (1990) (emphasis added). The preamble
explains the standard’s scope as follows:
‘(...continued)
Section 1910.147(a)(3)(i) ( em ph asis added). Similar language appears in certain other
provisions: sections 1910.147(a)(2)(iii)(A), (c)(4)(i) (exception to requirement of energy
control procedure), (f)(4), and Appendix A.
6The term “energization, etc.,” is our shorthand for the separate concepts of “energization,
startup, or release of stored energy.”
6
The standard covers servicing and maintenance in general industry where the
unexpected energization or start-up of machines or equipment or the release
of stored energy could cause injury to employees.
54 Fed. Reg. at 36,659. There are many other statements to the same effect in the
preamble. As we read it, the preamble can only support the plain language of the standard
that limits its application to machines or equipment where an unexpected energization could
cause injury to employees.
In addition to the preamble, other contemporaneous documents make clear that the
standard is limited to risks of unexpected energization, etc. For example, OSHA Publication
No. 3120, Control of Hazardous Energy (Lockout/Tagout) 2 (1991), states that if employees
are performing servicing or maintenance tasks that do not expose them to the unexpected
release of hazardous energy, the standard does not apply. The 1994 edition of that
publication makes the same statement. OSHA’s internal instructions for administering
section 1910.147 use comparable language. OSHA Instruction STD l-7.3, Control of
Hazardous Energy Lockout-Tagout)--Inspection Procedures and Interpretive Guidance, 5 I. Lb.,
d., e. (September 11, 1990). Thus, the Secretary’s contemporaneous publications and the
statements therein consistently reaffirm that the Secretary meant what he said in the
standard--it applies only where unexpected energization, etc., could occur and cause injury
to employees.
The plain and unambiguous terms of the standard, and the support of the legislative
history, is so overwhelming that the Commission need not even consider the Secretary’s
current interpretation. We note, however, that the Secretary’s interpretation is inconsistent
with the standard’s terms. He interprets it to apply to every piece of machinery and
equipment regardless of whether it could start up unexpectedly. The Secretary would
require lockout/tagout even if the record shows there is no possibility of “unexpected”
energization, etc. As GM states, the Secretary would “inquire only into whether an
employee could be injured if unexpected energization [etc.] were to occur (even if, in fact,
it could not).”
This interpretation fails to give effect to the entire clause that defines the standard’s
application. We cannot ignore the term “unexpected” as a limitation on the application of
the standard. Regulations are to be read so as to give effect to all their terms, if possible.
E.g., United States v. Menasche, 348 U.S. 528, 538-39 (1955). See Brown v. Gardner, 115 S.
7
Ct. at 556 (maxim of statutory interpretation held relevant to whether agency had properly
interpreted its governing statute) (citing Russell0 v. United States, 464 U.S. 16, 23 (1983)).
Again, the Secretary not only emphasized that limitation, but wrote it in repeatedly and
purposely.
The Secretary may change his standard, but his interpretation of his current standard
could only be “reasonable” if it “sensibly conforms to the purpose and wording of the
regulations.” CF & I, 499 U.S. at 151 (citing Northern Indiana Pub. Serv. Co. v. Porter County
Chapter of Izaak Walton League ofAmerica, Inc., 423 U.S. 12,15 (1975)); h&tin v. Am&an
Qanamid Co., 5 F.3d 140,144 (6th Cir. 1993). Here, the Secretary’s interpretation is plainly
inconsistent with the wording of the regulations. His reading would essentially remove all
limits to the standard’s applicability.
The Secretary’s interpretation in this case also contrasts sharply with portions of his
supplemental statement of reasons supporting the standard. In that document, which the
D.C. Circuit required during the pre-enforcement challenge to the standard, seesupra note 2,
the Secretary sought to reassure the court that he interpreted the standard to contain a
common-sense limit to situations where unexpected energization, etc., could cause injury to
employees.
The standard [does not apply] to servicing and maintenance that present
minimal and readily controlled risk . . . . [E]ach covered employer’s burden is
detewnined by the frequency and complexity of servicing actually undertaken. . . .
Machines and equipment that present no hazard are excluded fi-om coverage.
Final rule: supplemental statement of reasons, 58 Fed. Reg. 16,612, 16,621 (1993) (emphasis
added). The Secretary further emphasized before the D. C. Circuit that the standard applies
only to machines and equipment that pose a significant risk of harm and to employees
exposed to that risk. See UAW v. OSH4 II, supra note 2, 37 F.3d at ‘670 (“[iIf, as OSHA
asserts and NAM [the National Association of Manufacturers] appears not to dispute, the
regulation applies simply to machines that pose a significant risk and to workers subjected
to that risk, we see no reason why OSHA should be concerned with industry classifications
that appear essentially irrelevant to its task”) (emphasis in original).
Yet, in this enforcement action the Secretary contends that GM should not be
allowed to prove that its machines and equipment present no hazard or no significant risk
of harm. The Secretary essentially argues that he alone may decide whether such machines
8
and equipment present a hazard of unexpected energization, etc., or a significant risk of
harm, and that employers and the Commission may not question that determination. We
again do not believe that the standard can be reasonably read to require the result the
Secretary seeks.
Finally, we find no merit in the Secretary’s claim that Judge Myers’s reading of the
standard: (1) violates the requirement that the authorized employee have exclusive control
over his/her safety, and (2) rewrites the definition of “energy isolating device.” That claim
presumes that there always is a hazard of unexpected energization, etc., on every industrial
machine and piece of equipment during servicing and maintenance. The terms of the
standard clearly place the burden on the Secretary to show that there is such a hazard as to
the cited machines and equipment. The Secretary must show that there is some way in
which the particular machine could energize, start up, or release stored energy without
sufficient advance warning to the employee. However, the Secretary seeks to disallow
reliance on even the most failsafe control circuit devices--even where the employees as well
as employers favor them. We find that this unreasonable approach is flatly inconsistent with
the unambiguous terms of the standard, as well as the preamble and the Secretary’s other
contemporaneous explanations of the standard.7
II l Whether the Secretaq proved that unexpected activation could occur and cause
@WY
It is undisputed that the machines had extensive precautions to protect servicing and
maintenance employees. An electronically interlocked gate surrounded the machine area
in each case. Once an employee opened that gate or pushed an emergency stop button, a
time-consuming series of eight to twelve steps were required before any hazardous
movement of the machine could occur. The evidence indicated that the restart procedures
would provide plenty of warning to the employees, in the form of alarms and visible motions,
so that they could avoid any hazardous movement of the machinery.
‘The standard contains certain specific exceptions to lockout/tagout requirements, as the
dissent notes. However, the Secretary must show that the standard applies before the
exceptions become relevant. Because the Secretary failed to show that unqpected
energization, etc., could occur on the cited machines, he has not shown that the standard
applies, and thus we need not consider the exceptions.
9
The Secretary presented testimony at the hearing,
1
however, that unexpected
activation (startup or release of stored energy) actually could occur on GM’s machines
because they were not routinely deenergized or locked out. The judge found the Secretary’s
evidence insufficient. On review, the Secretary does not specifically contest the judge’s
factual findings or present an argument for finding unexpected activation on the particular
facts of these cases. In fact, the Secretary does not dispute GM’s assertion that he has
abandoned any objections to the judge’s factual findings. On the other hand, the Secretary
summarizes the facts and relies on the injury described in Docket No. 91-3116 as evidence
of the general risk of injury from failure to lockout.
We affirm the judge’s factual findings and his conclusions. GM’s expert witness,
engineer Richard Parry, testified convincingly that unexpected activation could not occur on
any of the machines under GM’s procedures. The judge properly relied on Parry’s
testimony. He did not discredit the contrary testimony of OSHA’s compliance officers
(TO’s”), but found that Parry had “superior knowledge and experience” regarding the
machines at issue. Thus, he concluded that in each case, “Parry’s testimony is entitled to
greater weight.”
Parry testtied that the machine involved in each case would shut down immediately
if the employee first: (1) opened the interlocked barrier gate around it, as the employees
were trained to do, or (2) pushed an emergency stop button. In either event, there could
be no unexpected activation. The basic reason is that a time-consuming startup procedure
of at least eight steps, most of them obvious to the servicing or maintenance employee,
would be required before any hazardous activation of the equipment could occur.
The restart procedures could be performed by an employee other than the one
performing servicing or maintenance, but the latter could not help being aware that they
were taking place. In Docket No. 91-2973, eight to eleven startup steps were required, and
numerous warning bells would sound during the process. In Docket No. 91-3116, twelve
startup steps were required and were all performed within 4 feet of the servicing or
maintenance employee. In Docket No. 91-3117, eight startup steps, including many
movements by the robot arm that would be obvious to the servicing or maintenance
10
employee, would be required before any hazardous movement could OCCUT.~As a result,
the servicing or maintenance employee would know of, and have plenty of time to avoid, the .
hazards. Parry’s testimony about the multi-step startup procedure completely disposes of
the alleged hazards in Docket No. 91-2973. We vacate the citation in that case accordingly.
The CO’s testified in Docket Nos. 91-3116 & 91-3117 that one of the hazards was
inadvertent activation of the equipment in the event of a short circuit or ground. However,
Parry contradicted that testimony. He testified that the electrical model on which the CO’s
relied, a 2-wire, llO-volt system, was not used by GM. He further testified that a short
circuit or ground in GM’s system (using 3-wire, 220~volt connections) would result in shutting
the machinery down, not starting it up. Parry’s testimony establishes that no hazard existed
in either case due to possible electrical failure. We vacate the citation in Docket No. 91-
3117 based on Parry’s testimony regarding that issue and regarding the multi-step startup
procedure in that case.
Finally, in Docket No. 91-3116, the Secretary relies on the fact that an employee
actually was injured while seticing the machine.g The union safety and health
8The startup process in Docket No. 91-3117 was typical of the others. The judge
summarized it as follows:
All interlock gates would have to be closed;
The start button on the control console would have to be pushed,
which activates the robot system and instructs it to orient itself as to
location. This takes some time and, if not in the home position, the
robot returns to the home position;
The robot then proceeds to the conveyor area where the bushings are
located and picks one up;
The robot then rotates to the press area;
The robot places a bushing into a funnel;
The robot next picks up a dog bone [metal piece into which bushings
are inserted] and the other bushing;
The robot returns to the funnel, drops a bushing, and places the dog
bone into a fixture; and
Only after the above sequence of tasks is completed will the solenoid
valve be signaled to activate the compressed air power to initiate
movement of the press.
‘GM employee Kaye Lowe was injured by a robot while servicing the A-7 module. It is
undisputed that Lowe’s injury happened when she was at the dial table servicing the
(continued...)
11
representative at the plant, Thomas Ashbum, testified that based on his investigation of the
incident, the employee had followed proper procedures. However, Parry testified that the
employee could not have followed proper procedures and must have entered the machine
area without using the interlocked barrier gate as required. He testified that GM thoroughly
investigated and that its engineers could not cause any movement of the machinery to occur
once the barrier gate was opened. Parry testified that once that gate was opened or an
emergency stop button was hit, there could be no startup of any equipment until another
time-consuming, multi-step startup procedure was completed, which inevitably would alert
the servicing or maintenance employee.
Again, the judge credited Parry’s expert testimony about the machine. The judge
found that a preponderance of the evidence failed to show that there was a hazard of
unexpected energization, etc., in Docket No. 91-3116 because: (1) if the employee had used
the barrier gate as required, the 1Zstep restart procedure would be necessary and would
alert the employee in time to avoid any activation of machinery, and (2) if the employee did
not use the barrier gate as required, he or she would know that activation could occur at any
time--hence, it could not be unexpected. We find that the evidence supports the judge’s
finding and thus we vacate the citation in Docket No. 91-3116.
Accordingly, we vacate the citations to GM in each of these cases.
Edwin G. Foulke, Jr.
Commissioner
Velma Montoya
Commissioner
Dated: Anti 1 XL 1995
‘( ...continued)
machinery. She was attempting to release a ball joint that had become jammed at the point
where they are greased. Apparently her movement triggered the grease unit on the dial
table and it cycled. Lowe was struck on the back of her forearm with grease and had to be
taken to the hospital to have it all removed.
Weisberg, Chairman, dissenting:
.
My qanrel with my colleagues in this case is fundamental. After extensive research,
review and comment, OSHA promulgated a standard reflecting its finding that, with certain
I
enumerated exceptions, it is necessary to deenergize machinery and equipment, and to lock
or tag it out, prior to servicing or maintenance to effectively protect employees from the
hazards of the unexpected energization, startup, or release of stored energy. Locking or
tagging out the machinery or equipment is mandatory under the standard if the energy
involved is strong enough to result in injury if released unexpectedly. It is undisputed that
the energy involved here was sufIicient to be considered hazardous if released. Further, GM
acknowledges that in the cited instances it has not adhered to the lockout or tagout
procedures required under the standard but claims such devices are unnecessary because it
has devised a better way of protecting employees. GM does not claim that compliance with
the standard would have been infeasible. Nor does GM claim that it lacked fair notice of the
Secretary’s interpretation of the standard.
In vacating the instant citations my colleagues, through myopic reliance on the so-
called ccplain meaning” of the term “unercpected” energization, reject the Secretary’s
interpretation of his own standard in favor of their own interpretation, one that negates the
required use of lockout/tagout procedures where the employer has devised an alternative
means of protection.’ Additionally, my colleagues would require that the Secretary prove
a negative in every case for each cited machine or equipment, i.e., that in myriad
circumstances alternative measures fashioned by the employer would not be completely
effective in preventing unexpected energization. The majority’s action will encourage a lack
of conformity with this important standard, which Elizabeth Dole, President Bush’s
‘Nothing in the standard, however, prevents an employer from adding whatever warning
mechanisms it feels will further protect employees. Nor does the standard discourage.
employers from doing so.
2
Secretary of Labor, considered “one of my top safety and health priorities.“2 This will place
more workers in danger for, as my colleagues well know, OSHA lacks the resources to
inspect even a respectable fiction of the workplaces subject to this standard much less to
evaluate all of the alternative measures employers may devise under the exception to the
standard the majority creates today. Accordingly, I must dissent.
I find the Secretary’s interpretation of his standard to be reasonable and consistent
with the protective intent of the standard as explained in the preamble. The Secretary’s
reasonable interpretations of his standards are entitled to deference. E.g., Martin v. OSHRC
(CF & I Steel Cop), 499 U.S. 144, 150 (1991)), cited in Hackney, Inc., 16 BNA OSHC
1806, 1808, 1994 CCH OSHD 7 30,486, p. 42,113 (No. 91-2490, 1994); Martin v. American
Cyanamid Co., 5 F.3d 140, l44.(6th Cir. 1993) (reviewing court is to uphold Secretary’s
interpretation of his standard “unless it is arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law.“) Therefore, I would End a violation in each of the
three cases. In addition, the facts surrounding the serious injury to the employee who was
performing servicing on the energized machinery in Docket No. 91-3 116 demonstrate to me
that unexpected activation is a hazard in such operations.
I
The intent of this standard is to reduce, so far as possible, the severe toll of death and
injury to servicing and maintenance employees by requiring the most complete control of
hazardous energy that is feasible. Some 7.1 percent of all fatalities occurring in general
indmtry relate to fdures to adequately control hazardous energy, according to the standard’s
preamble. Control of Hazardous Energy Sources (LockoutiTagout): Final Rule, 54 Fed.
Reg. 36,644,36,652, as corrected by 55 Fed. Reg. 38,677 (1990).
*BNA Occupational Safety and Health Reporter, Sept. 6, 1989, at 620.
3
The required level of control includes, at a minimum, deenergizing the machine or
equipment whenever feasible and locking or tagging it out, before servicing or maintenance
work begins:3
OSHA believes that the safe performance of activities such as repair,
maintenance and servicing, requires the deenergization of machines or
equipment wheneverfeasible. Further, in order to ensure that maintenance or
servicing activities are conducted [safely], a lockout or tagout procedure must
be utilized.
Id. at 36,654 (emphasis added).4 Where the energy is insuflicient to result in injury if
released unexpectedly, the energy is not considered hazardous and the machine or equipment
3Theterm “control of hazardous energy” in the standard means lockout or tagout. The very
title of the standard is “[t]he control of hazardous energy (lockout/tagout).” The preamble
states:
It should be noted that locks and tags by themselves do not control
hazardous energy. It is the isolation of the equipment from the energy source
and the following of the established procedures for deenergization and
reenergization of the equipment that actually controls the energy.
54 Fed. Reg. at 36,655. Control circuit devices, on which GM relied here, do not control
hazardous energy as the Secretary requires, because they do not isolate the equipment j6rom
the energy source. See 5 1910.147(b), which defines “,,,rgy isolating device” and states
that “control circuit type devices are not energy isolating devices.”
4The Secretary’s intent is clearly stated in the opening summary of the standard:
This standard addresses practices and procedures that are necessary to disable
machinery or equipment and to prevent the release of potentially hazardous
energy while maintenance and servicing activities are being performed. The
standard requires that lockout be utilizedfor equipment which is designed with
a lockout capability except when the employer can demonstrate that utilization
of tagout provides fuli employee protection.
54 Fed. Reg. at 36,644. See also, e.g., 54 Fed. Reg. at 36,656:
[This standard] requires that the employer develop and implement an energy
control program and procedure for servicing and maintenance of machinery
and equipment, using lockout or its equivalent on the great majority of energy
isolating devices, namely those which are currently.capable of being locked
out.
4
need not be locked . out or tagged out. Otherwise, lockoutitagout is mandatory, absent the
specific exceptions set forth in the standard.
Reliance on push buttons and other control circuit devices, however ingenious, is not
acceptable under the standard. The reason is that the electrical or other power circuits
remain connected (or can be reconnected by someone other than the servicing or
maintenance employee). Such circuits are capable of transferring power and causing
machine movement, however remote the possibility may seem. As the preamble to the
standard makes clear,
OSHA believes that the least desirable situation is to allow employees to
perform maintenance, repair, or service activities while the machine or
equipment is energized and capable of performing its normal production
function. . . .
The vast majority of servicing or maintenance activities can safely be
done only when the machine or equipment is not operating and is deenergikee
therefore, these activities are covered by this standard.
[S]huttkg*iown a machine or equipment usually is not the total solution to the
problem. Once the machine or equipment has been stopped there remaim the
potential for employee injury f?om the unanticipated movement of a
component of the machine or equipment, or from movement of the material
being handled.
The geLLlly accepted best means to minimize the potential for inadvertent
activation is to ensure that all power to the machine or equipment is isolated,
locked or blocked and dissipated at points of control, using a method that
cannot readily be removed, bypassed, overridden or otherwise defeated.
54 Fed. Reg. at 36,647-48 (emphasis added).
GM’s machines were neither deenergized nor locked out, although it would have been
feasible to do both. Thus, the machines remained capable of performing their normal
production function while employees performed servicing or maintenance. That is a
situation the Secretary seeks to avoid. The serious injury to the employee who was servicing
5
the robot module in Docket No. 91-3 116, due to unexpected activation of a robot illustrates .
the problem and shows that GM’s control circuit devices and procedures were not failsafe.
The majority decision is based almost exclusively on the so-called plain meaning of
the term “unexpected” energization as used in the standard. ‘Ihe majority appears to read the
word “unexpected” as meaning %ithout warning.” Yet Roget’s Thesaurus lists the
following words as synonyms for “unexpected”: unusual, sudden, chance, unanticipated, and
unforeseen. R Chapman, ed., Roget’s Int ‘I Thesaurus (4ti ed. 1977). The majority fails to
explain how it arrived at its meaning of “unexpected” and why that interpretation is not free
from doubt. I do not view the terms “unexpected” and %&out warning” as being the same.
In the instant cases, for example, while the employees may receive a warning, nevertheless
they are exposed to an unanticipated or chance startup. While the employees may be given
a momentary “heads up” or warning, they are not necessarily protected against the hazards
that the standard is aimed at.
To the extent that a literal reading of the standard by itself suggests that an employer
can forego lockouthagout on a particular machine unless “unexpected energization,” as my
colleagues define that term, appears to be a realistic possibility, such an interpretation is
squarely at odds with OSHA’s intent as expressed in the preamble. “[Dlefects in . . . a
regulatory warning may be cured by authoritative judicial or administrative interpretations
which clarify obscurities or resolve ambiguities.” Diebold, Inc. v. Marshall, 585 F.2d 1327,
1338 (6th Cir. 1978). A standard’s preamble “is the best and most authoritative statement
of the Secretary’s legislative intent.” E.g., American Sterilizer Co., 15 BNA OSHC 1476,
1478, 1991-93 CCH OSHD 7 29,575, p. 40,016 (No. 86-1179, 1992).
The preamble passages quoted above illusmte the Secretary’s rulemaking finding that
unexpected energization, etc., always is a hazard in servicing and maintenance work on
power machinery and equipment unless employees follow lockout/tagout procedures. The
Secretary’s supplemental statement of reasons supporting the standard makes the same basic
point. It states tit “workers face a significant risk of material harm every time they perform
6
service or maintenance work on powered industrial equipment.” Final Rule: supplemental
statement of reasons, 58 Fed Reg. 16,612, 16,620 (1993) (citing 54 Fed. Reg. at 36,647-48,
36,652-53).
Thus, that supplemental statement is consistent with the preamble. They both fjind a
significant risk of harm where the employer fails to use the energy control procedure the
standard requires. Machines and equipment that in the Secretary’s view present no hazard
are not regulated, and risks that in the Secretary’s view are “minimal and readily controlled”
are not subject to lockout/tagout requirements. Numerous specific exceptions to the
lockout/tagout requirements are provided in the standard. Examples are: (1) certain routine,
minor tool changes and adjustments during normal production operations, where effective
alternative protection is used (section 1910.147(a)(2)(B)--exception); and (2) work on cord-
and plug-related equipment, where the protections mentioned in section
19 lO.l47(a)(2)(iii)(A) exist. Thus, the Secretary’s approach does not “essentially remove
all limits to the standard’s applicability,” as the majority states. Rather, it provides a general
requirement of lockout or tagout protection with specific, prudent exceptions.
All employees in occupations that perform servicing or maintenance on powered
industrial equipment in general industry must use lockout/tagout. E.g., 54 Fed. Reg. at
36,684 (“OSHA classified ‘at-risk’ occupations in the Final Rule as those being held by
individuals who would actually perform lockout or tagout”) (emphasis added). OSHA
estimates that about 3 million employees in the affected industries will service or maintain
powered industrial equipment (2 million in high-impact industries and 1 million in low-
impact industries).’ The decision whether to follow lockout/tagout procedures does not rest
‘The Secretary’s complete analysis, on which his comments in the preamble are based, so
states.
OSHA has estimated that about 2 million workers in 340,451 high-impact
establishments and almost 1 million workers in 291,034 low-impact
(continued.. .)
7
on whether the employee, supervisor, or compliance officer can think of a way that the
particular machine could activate unexpectedly. The only question is whether the energy is
strong enough to cause injury if released.
The majority would allow GM to forego lockout/tagout in favor of control circuit
devices, even though the Secretary has made clear that those devices do not actually control
energy as he requires. See supra note 3. Furthermore, GM’s reliance on control circuit
devices meant that the safety of the servicing employee was not fully in his or her own
control, contrary to the purpose of the standard. The protections provided by those control
circuit devices could be removed by another employee, whereas “[l]ockout or tagout shall
be performed only by the authorized employees who are performing the servicing or
maintenance:” section 1910.147(c)(8)!
establishments are employed in occupations that are at risk when equipment
servicing and maintenance tasks are performed. This risk appears to be the
greatest for those workers employed as craft workers, machine operators, and
laborers. Moreover, packaging and wrapping equipment, along with printing
presses and conveyor belts, are associated with a high proportion of accidents.
OSHA, Regulatory Impact and Regulatory Flexibility Analysis of 29 CFR 1910.147, a-13,
II-15 (August, 1989) (emphasis added). That document also states flatly that “[ulnder the
final rule, an employee must lock or tag machinery and equipment during servicing
operations and equipment maintenance.” Id. at III-20.
@IThe
term “authorized employee” is decked as follows:
A person who locks out or tags out machines or equipment in order to perform
servicing or maintenance on that machine or equipment. An affected
employee becomes an authorized employee when that employee’s duties
include performing servicing or maintenance covered under this section.
Section 1910.147(b). The term “afTected employee” is defined in that section as follows:
An employee whose job requires him/her to operate or use a machine or
(continued.. .)
8
These [authorized employees] are the only employees who are required to be
trained to know in detail about the types of energy available in the workplace
and how to control the hazards of that energy. Only properly trained and
qualified employees can be relied on to deenergize and to properly lockout or
tagout machines or eqtipment which are being serviced or maintained, in order
to ensure that the work will be accomplished safely.
54 Fed. Reg. at 36,676.
. Thus, the standard did not contemplate that the servicing employee
would be subject to having to get out of the way because another employee could begin a
restart procedure.
The majority states, however, that ‘tve f!nd it unnecessary to look outside the standard
itself for guidance as to its meaning.” I believe that the majority errs in that regard. First,
the standard’s meaning is “not free from doubf” especially in light of the preamble. See,
e.g., CF & I, 499 U.S. at 150 (where meaning of regulatory language is “not free from
doubt,” reviewing court should give effect to Secretary’s interpretation so long as it is
reasonable) (citing Ehlert v. United States, 402 U.S. 99, 105 (1971)).
Second, even ifthe standard’s language seemed ‘%ee from doubt,” the Supreme Court
has made clear numerous times recently that, particularly where, as here, the employer
cannot claim lack of fair notice of the agency’s interpretation, it is the actual intent of the
regulator that controls, not necessarily the common meaning of the words used. The
circumstances of the enactment of particular legislation may persuade a court that Congress
did not intend words of common meaning to have their literal effect.” Watt v. Alaska, 45 1
U.S. 259,266 (1981).
That the regulator’s intent controls is clear Corn the following summary of the
Supreme Court’srequirements-relied on by the Commission in Unarco Commercial Prod,
16 BNA OSHC 1499,1502-03,1993 CCH OSHD 7 30,294, p. 41,732 (No. 89-1555, 1993).
equipment on which servicing or maintenance is being performed under
lockout or tagout, or whose job requires him/her to work in an area in which
such servicing or maintenance is being performed.
9
Under the familiar principles enunciated by Chevron USA. Inc. v.
ARDC, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 2781, 81 L.Ed. 2d 694
(1984), we fist ask “whether Congress has directly spoken to the precise
question at issue.” We independently examine the language and, ifnecessary,
the legislative history to determine whether the intent of Congress is clear. If
congressional intent is unclear, we then inquire whether the agency’s
interpretation is G’permissible,”id at 843, 104 S. Ct. at 2782, i.e., “rational and
consistent with the statute.” NLRB v. United Food & Commercial Workers
Union, Local 23, [484 U.S. 112, 1231, 10s S. Ct. 413,421 [(1987).]
Securities I&us. Ass’n v. Federal Reserve Sys., 847 F.2d 890, 893-94 (D.C. Cir. 1988)
(emphasis added). The analytical steps for interpreting an OSHA standard are the same as
for a Congressional statute, as Unarco noted. 16 BNA OSHC at
. 1502-03, 1993 CCH OSHD
at p. 41,732. Thus, the Commission’s job is to discern the intent of the Secretary in issuing
the standard, not to decide independently what the language means. The Court cautioned
judges “not to make a fortress out of the dictionary; but to remember that statutes always
have some purpose or object to accomplish, whose sympathetic and imaginative discovery
is the surest guide to their meaning.” Public Citizen v. Department of Justice, 49 1 U.S. 440,
454-55 (1989), (citing Cabell v. Markham, 148 F.2d 737,739 (2d Cir.), ard, 326 U.S. 404
(1945)).
Third,,the legislative history of a standard always may be consulted to determine its
meaning. “When aid to construction of the meaning of words, as used in the statute, is
available, there certainly can be no ‘rule of law’ which forbids its use, however clear the
words may appear on ‘superficial examination.“’ Public Citizen (quoting United States v.
American TuckingAssn, 310 U.S. 534,543-44 (1940) (citations omitted)). Thus, reference
to the preamble is always appropriate where the meaning of a standard is in dispute.’ In my
‘The cases the majority cites do not warrant a different result. Estate of Cowart v. Nicklos
Drilling Co., 112 S. Ct. 2589,2594 (1992), acknowledges that in certain circumstances the
inquiry goes beyond the text of a statute despite its seemingly plain meaning. Cowart and
the other recent Supreme Court cases modify the effect of the statement the majority quotes
from Caminetti v. United States, 242 U.S. 470 (1917).
(continued...)
10
view thepreamble here shows clearly that the Secretary intended to avoid, wherever feasible,
having employees perform servicing or maintenance on powered industrial machinery while
it is energized.
The burden the majority places on the Secretary by superimposing its own
interpretation on the standard likely will prove quite difEcult and burdensome to meet.
Putting aside the evidence of a recent injury on one of the machines during servicing
(discussed below), two experienced OSHA compliance officers (“CO’s”) testified to specific
ways in which they believed GM’s machines could activate unexpectedly. They testified that
the machines in question in Docket Nos. 91-3 116 and 91-3 117could activate if a short
circuit occurred in the line. The CO further testified in Docket No. 91-3 117 that the press
could stroke ifan employee manually tripped the solenoid, or if the solenoid failed.
The judge did not discredit that testimony. Still, he found it Insufficient based on
strong expert testimony to the contrary by GM’s engineer, Richard Parry. As the majority
‘(...continued)
Brown v. Gardner, 115 S. Ct. 552,556 (1994), involved no positive legislative history on the
disputed interpretation issue. That case did not mention, much less overrule, the Court’s oft-
repeated precedent that legislative history always may be consulted ifit is available. Further,
Brown concerned the meaning of a veterans benefit statute, and the Court noted that
interpretive doubt is to be resolved in the veteran’s favor, not the Govemment’s, in such
cases. Id at 555 (citing Kigv. St. Vincent’s Hosp., 502 U.S. 215,220-21 n.9 (1991)).
The quotation in Brown f?om Good Samaritan Hosp. v. Shalala, 113 S. Ct. 215 1, 2157
(1991), which the majority notes, supports my position strongly. The Court’s full statement
actually was, “[t]he starting point in interpreting a statute is its language, for ‘[i]f the intent
of Congress is clear, that is the end of the matter,“’ quoting Chevron, 467 U.S. at 842
(emphasis added). The intent of the lockout/tagout standard is what the Secretary says it is.
The preamble clarifies that intent.
The treatise which the majority cites also supports my position. 2A Singer, Sutherland Stat.
Const., 5 48.01 (5th ed. 1992) (citing Train v. Colorado Public Interest Research Group,
Inc., 426 U.S. 1,9-10,23-24 (1976) (plain meaning rule is not to be used to thwart or distort
intent of Congress by excluding from consideration enlightening material from legislative
history)).
11
notes, the judge found that Pany had “superior knowledge and experience” regarding the
eqtipment in question and thus that his testimony is entitled to greater weight. Parry testified
that these particular machines were not subject to the specific hazards that the CO’s raised.
The majority fully aflirms the judge’s findings. There is no gainsaying that it will be
difficult for the Secretary to prevail in hotly contested cases such as these involving
sophisticated control circuit devices. In effect, the Commission is requiring the Secretary to
reestablish in every case his reasonable rulemaking finding--that with the specific exceptions
spelled out in the standard, unexpected energization, etc., poses a significant risk of harm if
powered industrial machinery is not deenergized and locked out before servicing or
maintenance is performed on it.
II
The evidence clearly shows that a hazard of unexpected startup was present on the
machinery involved in Docket No. 91-3 116, no matter which version of the accident one
accepts. That injury occurred while an employee was performing servicing inside a robot
module. She was attempting to unjam a ball joint when the adjacent grease unit cycled and
struck her arm, injecting grease into it which had to be removed at a hospital.
The CO and the union’s safety and health representative testified that, based on their
investigations, the employee had followed proper procedures, including opening the
electronically interlocked barrier gate before entering the module. GM’s expert witness
Parry testified, however, that based on his investigation, the employee must have
circumvented that gate because when opened, it would shut down the power to the
machinery in the module, and would necessitate a time-consuming, 12-step restart procedure
before the machinery could activate again.
Even assuming Parry was correct, the employee’s injury resulted f?om “unexpected”
activation. The gate could be circumvented--an employee could readily climb through its
horizontal rails without opening it. There is no basis in the record to conclude that the
12
employee expectedthe machine to activate, even if she failed to follow GM’s procedures by .
circumventing the gate. Nor did GM expect the machine to activate.
Employees do not forfeit the protection of the standard merely by making a mistake
(such as failing to follow a set procedure). The standard clearly aims to protect such
employees by reqiring the deenergization of machines or equipment wherever feasible and
locking or tagging them out, before the servicing or maintenance is performed. Commission
and court precedent recognizes that employees sometimes attempt to circumvent control
circuit devices on industrial machinery, and it holds that such employees do not thereby
forfeit the protections of the standards. E.g., h4RS Printing, Inc., 6 BNA OSHC 2025,2026,
1978 CCH OSHD 7 23,102, p. 27,920 (No. 76-3 113, 1978) (to comply with section
19 10.212(a)(3), the general point of operation guarding requirement for machines, “an
employer must install a guarding device that cannot be easily circumvented by his
employees.“) See also, e.g., Long Mfg.Co., N. C., Inc. v. OSHRC, 554 F.2d 903 (8th Cir.
1977) (Commission finding of machine guarding violation upheld where employer had
installed recognized control circuit safety device (dual hand controls) but it could be and was
being circumvented). Thus, I would find a violation in Docket No. 91-3 116, even under the
majority’s interpretation of the standard.
Accordingly, I respectfully dissent.
/$hmRkE. %J*
Stuart E. Weisberg
Chairman
Dated: Awi 1 26, 1995
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
COM (202) 6oG5100
m@02)60&5100
..
SECRETARY OF LABOR, ..
..
Complainant,
v. Docket Nos. 91-2973
91-3116
GENERAL MOTORS CORP., 91-3117
DELCO CHASSIS DIVISION,
..
Respondent. ..
.
a
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
April 26,1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH TEtE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF TEIE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.
FOR THE COMMISSION
April 26, 1995
Date
Executive Secretary
Docket Nos. 91-2973 & 91-3116 & 91-3117
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Brian W. Scovill, Esq.
General Motors Corp.
New Center One Building / PO Box 33122
3031 West Grand Blvd.
Detroit, MI 48232
Robert C. Gombar, Esq.
Frank A. White, Esq.
Arthur G. Sapper
McDermott, Will & Emery
1850 K Street, N.W., Suite 500
Washington, DC 20006
Thomas D. Ashbum
United Rubber Workers
Local Union No. 87
21 Abbey Avenue
Dayton, OH 45417
Edwin G. Salyers
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre .
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
.
Ei (202) 6o64osO
Frs(202) 60&6050
SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NOS. 91-2973
91-3116
GENERAL MOTORS CORPORATION, 91-3117
DELCO CHASSIS DMSION,
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE MW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on May ‘; 1993. The decision of the Judge
will become a final order of the Commission on June 7, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 27, 1893 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copv to:
Ad
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOB.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued bv the Commission. then the Counsel for
Regional Trial Litigation will represent the Department of Labor. hY Party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION .
Date: May 7, 1993 Rav H. Darling. ti
Executive Se&&y
DOCKET NOS. 91-2973 & 91-3116 & 91-3117
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re l onal Solicitor
Office of t%e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Brian W. Scovill, Esq.
General Motors Corp.
PO Box 33122
New Center One Building
3031 West Grand Blvd.
Detroit, MI 48232
Thomas D. Ashbum
United Rubber Workers
Local Union No. 87
21 Abbey Avenue
Dayton, OH 45417
Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00103031274:05
UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
IQEE DtAPLJTPCE CTPCCT hl f Cl II-f-C QI)AA
IQUkJ I LAVIIIIILL &JlIlLLI, IY.L., 3UIlL LL+U
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404) 347-4197 COM (404) 347-0113
f=rs (404) 347-4197 ffs (404) 347-0113
..
..
SECRETARY OF LABOR,
..
.
Complainant, .
.
.
. - T----
V. . OSHRC Docket Nos.
.
GENERAL MOTORS CORPORATION, 91-2973, 91-3116 & 91-3117
n-r f4fi OTT A mmTr\ nrvrTr*vnxy
l.mfldLU LHA3313 lJ1 v 131UN,
(Consolidated)
Respondent.
Appearances:
Mary Anne Garvey, Esquire Brian W. Scovill, Esquire
Office of the Solicitor General Motors Corporation
U. S. DePartment of Labor Detroit, Michigan
u----
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Edwin G. Salyers
DECISION AND ORDER
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separate inspections of facilities owned and operated by General Motors Corporation, Delco
_-- __
Chassis Division (GM), in August and September of 1991. As a result of these inspections,
the Secretary issued citations to GM in the three cases alleging various violations of the
----
Occupationai Safety and Heaith Act of 1970 (Actj. ‘These cases, docketed as Nos. 9i-2973,
91-3116, and 91-3 117, were consolidated and tried before the undersigned on
October 15 and 16, 1992. Prior to the hearing, the parties reached a partial settlement of
the citations as follows (Tr. 28-30):
Docket No. 91.3117.- GM agreed to withdraw its notice of contest with regard to
items 1, 2 and 3 of Citation No. 1. The Secretary agreed to vacate item 5 of Citation No. 1
and to reclassify item 6 of Citation No. 1 as an “other” than serious violation with a penalty
of $1,250.00. GM agreed to withdraw its notice of contest to item 1 of Citation No. 3, and
the Secretary agreed to vacate item 2.
Docket No. 91-2973.- The parties agreed that item 1 of Citation No. 1 would be
reclassified as an “other” than serious violation of the Act and that a penalty of $1,250.00
would be assessed.
The foregoing agreements of the parties are approved by the court and will be
included in the order of disposition in these cases.
Left for consideration are five items that allege violations of either
6 1910.147(c)(4)(i), 6 1910.147(c)(4)(ii), or 0 1910.147(d)(4)(i) of the lockout/tagout
standard. Section 1910.147(c)(4)(‘)1 re q uires that energy control procedures be developed,
documented and utilized to protect employees. Section 1910.147(c)(4)(ii) requires that the
energy control procedures clearly and specifically outline the scope, purpose, authorization,
rules and techniques to be used, and the means to enforce compliance. Section
1910.147(d)(4)( Il
) re q uires that lockout or tagout devices be affixed to each energy isolating
device by authorized employees.
The following items are at issue in the consolidated cases:
Docket No. Citation No. Item Standard Classification
91-3117 1 4 $1910.147(c)(4)(ii) Serious
2 1 $1910.147(c)(4)(i) Repeat
91-3116 1 1 §1910.147(c)(4)(ii) Serious
2 1 $1910.147(c)(4)(i) Repeat
91-2973 1 1 51910.147(d)(4)(i) Repeat
Docket No. 91-3117
Facts ,
OSHA Compliance Officer John Collier inspected GM’s facility at 2701 Home
Avenue in Dayton, Ohio, on September 24 and 25,199l (Tr. 45). On the second day of his
inspection, Collier observed Daniel Westbeld, a tool, die and mold maker for GM,
performing maintenance on a robot and pneumatic press in Department 288. The press is
identified as machine No. 2773367 (Tr. 167) and is one of several “pick and place robots”
used in that department. The robot had been programmed to pick up rubber inserts, known
as bushings, and insert them inside a piece of metal (a “dog bone”). Once the bushings
have been inserted into the dog bone, the robot places the dog bone in the press where the
bushings are “stuffed” into the dog bone. This machine manufactures a torque strut which
attaches the engine to the frame of the automobile and cushions the engine during driving
(Tr. 168). The press is powered by compressed air (Tr. 171).
A solenoid valve powered by electricity releases the air pressure which gives the press
its force. The robot is powered by electrical energy (Tr. 64). The robot and press are
controlled by a computer (Tr. 62).
On September 25, 1991, Westbeld was replacing linear ball bearings in the lower die
unit of the press. (These bushings are distinct from the bushings that are stuffed in the dog
bones). The task usually takes about half an hour to complete. In order to gain access to
the press, Westbeld had to open the gate that surrounds the robot and press (Tr. 171-172).
The gate around machine No. 2773367 was interlocked, meaning it was equipped with
a photoelectric cell that both sent and received signals (Tr. 230). The system was designed
to place a “hold” on the robot when the gate was opened. The safety interlock was
intended to prevent messages from being sent to the robot or to the press which could cause
either piece of equipment to function. Westbeld put his “truck,” a cart holding tools and
weighing 100 to 150 pounds, in front of the open gate to keep it from closing while he was
working on the press (Tr. 172, 182, 194). Before beginning maintenance on machine No.
2773367, Westbeld would notify the operator who would move the robot out of the way,
usually to the “home” position (Tr. 191-192). After the robot was moved out of the way,
the operator would then hit the “emergency stop” (Tr. 197-198).
The robot is powered by electrical energy. The press is operated by air pressure.
The solenoid valve, which releases the air pressure and causes the press to function, is
powered by electricity (Tr. 63-64). Westbeld did not exhaust the air from the press’s valve
nor did he lock out the valve before he began working on the machine (Tr. 65). Westbeld
did not disconnect the robot from its energy source and did not ensure that the robot was
de-energized (Tr. 182). While working on the press, Westbeld was required to place his
hands within the confines of the die (Tr. 179).
Item 1 of Citation No. 2
Alleged Violation of 5 1910.147(c)(4)(i)
The Secretary alleges that GM committed a repeat violation of 5 1910.147(c)(4)(i),
which provides:
Procedures shall be developed, documented and utilized for the control of
potentially hazardous energy when employees are engaged in the activities
covered by this section.
Section 1910.147(a)(l)(i) specifies the activities covered by 8 1910.147:
This standard covers the servicing and maintenance of the 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.
This standard establishes minimum performance requirements for the control
of such hazardous energy.
The Secretary contends that Westbeld’s activities in performing maintenance on
machine No. 2773367 are covered by the provisions of the lockout standard. The production
process had been halted on the press, and Westbeld had been performing maintenance on
it. The Secretary points out that the preamble to the lockout standard provides that during
maintenance activities:
[T]he machine or equipment must be isolated from the energy source and the
energy isolating device disabled. It is also during these activities that
employees are exposed to the unexpected energization, startup or release of
4
stored energy against which the control procedures established in this standard
are designed to provide protection.
54 Fed. Reg. 36644 at 36661 (1989). The Secretary argues that because machine No.
2773367 was not isolated from its energy sources prior to the commencement of
maintenance, Westbeld was exposed to the unexpected energization or start up of the
equipment, or the release of stored energy. The Secretary contends that, had the machine
released stored energy while maintenance was being performed, Westbeld could have been
injured.
A sign on the cage of the machine states that “all air cylinders have stored energy”
(Exh. C-4). GM’s expert, Richard Parry, conceded that machine No. 2773367 had the
potential for stored energy (Tr. 232). Westbeld admitted that he did not bleed off the air
pressure before he began working on the press (Tr. 179). The only precaution Westbeld
took was placing his truck in front of the machine’s door to prevent the closing of the gate.
Compliance Officer Collier testified, since the air pressure was not bled off, the
potential existed for a release of air which could have resulted in the operation of the press
(Tr. 67). Collier believed that the solenoid could have been manually tripped, resulting in
a release of energy. He also believed that the computer could have sent an erroneous
message to the valve, causing it to function (Tr. 66).
Collier testified that Westbeld should have operated the exhaust valve to release the
air. Then Westbeld should have used a lockout device to lock out the valve that controlled
the air (Tr. 67-68). Section 1910.147(b) defines “lockout device” as “[a] device that utilizes
a positive means such as a lock, either key or combination type, to hold an energy isolating
device in a safe position and prevent the energizing of a machine or equipment.” Collier
also suggested that Westbeld could have inserted a die block in the press to prevent the
upper part of the die from drifting down (Tr. 69-69). Collier further testified that the
electrical lines which power the robot’s functions should have been disconnected and locked
out (Tr. 69).
GM contends that the Secretary has failed to meet threshold elements of its burden
of proof. These requirements provide:
To establish a violation of a standard, the Secretary must show by a
preponderance of the evidence that: (1) the cited standard applies, (2) its
terms were not met, (3) employees had access to the violative condition, and
(4) the employer knew or could have known of it with the exercise of
reasonable diligence.
Seibel Modem Manufactuting & Welding Cop., 15 BNA OSHC 1218, 1991 CCH OSHD
lI 29,442, p. 39,678 (No. 88-821, 1991).
Richard Parry has been a staff engineer with GM since 1973 (Tr. 206). He was
certified at the hearing as an expert regarding maintenance functions and machine controls
utilized in GM’s plant (Tr. 209). Parry demonstrated throughout his testimony that he is a
highly knowled.geable and credible witness. Of all the witnesses who testified for either
party, Parry impressed the undersigned as the witness who had the best understanding of the
workings of the machines and equipment, as well as the best command of the details of how
the various systems worked. While Collier was a credible witness, he did not have the depth
of knowledge demonstrated by Parry regarding the equipment at issue. Based upon his
superior knowledge and experience, this court concludes that Parry’s testimony is entitled
to greater weight than that rendered by Collier.
U
Parry explained that in order for machine No. 2773367 to cycle, a multi-step process
would ) 1Jhave to be completed (Tr. 214-216):
All interlock gates would have to be closed;
The start button on the control console would have to be pushed,
which activates the robot system and instructs it to orient itself as to
location. This takes some time and, if not in the home position, the
robot returns to the home position;
The robot then proceeds to the conveyor area where the bushings are
.
located and picks one up;
The robot then rotates to the press area;
The robot places a bushing into a funnel;
The robot next picks up a dog bone and the other bushing;
The robot returns to the funnel, drops a bushing, and places the dog
bone into a fixture; and
(8) Only after the above sequence of tasks is completed will the solenoid
valve be signaled to activate the compressed air power to initiate
movement of the press. (Tr. 214-216).
GM contends that the Secretary failed to establish that the terms of the standard
were not met and that Westbeld was exposed to a hazard of injury due to an unexpected
release of stored energy. GM believes it was not necessary to lock out the machine because
the number of steps required to cause the machine to cycle would allow any employee
working on the machine sufficient time to remove himself or herself from the zone of danger
before exDosure occurred.
A
The undersigned agrees. In Caterpillar,Inc., No. 92-0127, slip op. at 5 (October 30,
1992), Judge Barkley vacated a citation issued under the lockout standard, stating:
Typically, lockout procedures are designed to protect against accidents where
maintenance is performed at locations remote from machinery’s controls. For
example, an employee may be injured where a conveyor is unexpectedly
started by a second employee who does not see the maintenance worker.
Such is not the case here . . . . Moreover, the operator, during the
maintenance procedure is only a few feet away from the mill’s control panel;
it would be impossible for anyone to start up the mill without being aware of
the operator’s presence.
Judge Barkley’s reasoning is apposite here. The lockout standard specifically targets
“the unexpected energization or start up of the machines or equipment.” Under the
circumstances described in the record, Westbeld or any other employee engaged in
maintenance of the machine would be alerted to the possible activation of the press by the
several steps that must occur before the press cycles. This would afford sufficient notice that
energization was about to occur and provide sufficient time to the employee to vacate the
zone of danger.
The Secretary has failed to establish that 0 1910.147(c)(4)(i) was breached by
respondent, and item 1 of Citation No. 2 will be vacated.
Item 4 of Citation No. 1
Alleged Violation of 6 1910.147(c)(4)(ii)
The Secretary alleged that GM committed a serious violation of 6 1910.147(c)(4)@),
which provides:
The procedures shall clearly and specifically outline the scope, purpose,
authorization, rules, and techniques to be utilized for the control of hazardous
energy, and the means to enforce compliance including, but not limited to, the
following:
(A) A specific statement of the intended use of the
procedure;
(B) Specific procedural steps for shutting down, isolating, blocking
and securing machines or equipment to control hazardous
energy;
(C) Specific procedural steps for the placement, removal and
transfer of lockout devices or tagout devices and the
responsibility for them; and
(D) Specific requirements for testing a machine or equipment to
determine and verify the effectiveness of lockout devices, tagout
devices, and other energy control measures.
Collier found fault with GM’s program as it related to parts (B) and (C) of this
provision of the lockout standard; he found the program to be adequate with respect to
parts (A) and (D). Exhibit C-1 is a copy of GM’s lockout/tagout procedure. Part (B; of the
cited provision requires that GM outline “[slpecific procedural steps for shutting down,
isolating, blocking and securing machines or equipment to control hazardous energy.” GM’s
procedural steps for lockout and tagout are detailed in the fourth paragraph of GM’s
lockout/tagout procedure as follows:
Sequence of LockoutlTagout System Procedures:
(1) Notify all affected employees that a lockout/tagout system is going to
utilized and the reason for its use. The employee must know the type
and magnitude of energy that the machine or equipment utilizes and
understand the hazards.
(2) Shut the machine or equipment down by following the normal
operating procedures.
(3) Operate the switch, valve, or other energy isolating device(s) so that
the equipment is isolated from its energy source(s). Stored energy
(such as that in springs, elevated machine members, rotating flywheels,
hydraulic systems, air, gas, steam or water pressure, etc.) must be
dissipated or restrained by method such as repositioning, blocking,
bleeding down, etc.
(4) Lockout and/or tagout the energy isolating devices using the assigned
individual lock to tag method selected plus any additional safety
measures deemed necessary.
(5) After ensuring that no personnel are exposed, and checking to ensure
the energy sources are disconnected, operate the push button or other
normal operating controls to make sure the equipment will not
operate.
(6) Return the operating controls to neutral after the test.
(7) The equipment is now locked out or tagged out.
The Secretary contends that GM’s procedural steps are not specific enough to meet
the requirements of 8 1910.147(c)(4)(ii)(B). Th e S ecretary argues that GM should have a
separate written procedure for each machine or piece of equipment (Secretary’s Brief,
p. 18). Such a requirement is not found, however, in the cited provision of the standard.
Furthermore, the preamble to the lockout/tagout standard explicitly rejects the requirement
of having a separate written procedure for each machine or piece of equipment (54 Fed.
Reg. 36644 at 36670):
[Wlhereas the procedure is required to be written in detail, this does not
mean that a separate procedure must be written for each and every machine
or piece of equipment (those using the same type and magnitude energy)
which have the same or similar types of controls can be covered with a single
procedure.
The Secretary has not proved that the machines operated in GM’s Delco plant have
types of controls different enough to require separate procedures for each machine. The
general procedural steps outlined by GM in its written lockout/tagout procedure meet the
conditions set out in the standard’s preamble (Id.):
The written energy control procedure required by this standard need not be
overly complicated or detailed, depending on the complexity of the equipment
and the control measures to be utilized. . . In addition, the employer’s
l
.
procedures may not need to be unique for a single machine or task, but can
apply to a group of similar machines, types of energy and tasks if a single
procedure can address the hazards and the steps to be taken satisfactorily.
GM’s lockout/tagout procedure meets the requirements of 6 1910.147(c)(4)(ii)(B).
Section 1910.147(c)(4)(ii)(C) re q uires that the employer’s written procedure contain
“[slpecific procedural steps for the placement, removal and transfer of lockout devices or
tagout devices and the responsrbility for them.” Exhibit R-l of Docket No. 91-3117 is a copy
of GM’s ’ “LOCK-OUT/TAG-OUT AND SAFETY PADLOCK PROCEDURE.”
Paragraphs 6 and 7 of that document specify the steps and responsibilities for the placement,
removal and transfer of lockout devices:
(6) When necessary to place more than one safety padlock on the source
of power control that will not accommodate more than one lock, the
accessory device (scissors) must be used.
(7) As each employee completes his particular assignment, or at the end
of his work shift, he must remove his safety padlock. If removal of the
lock will create a hazard to another employee or possible damage to
the equipment if turned on, the lock of the employee assigned to work
on the job the following or oncoming shift should replace the lock of
the employee leaving the job.
If the oncoming employee is not available to assume “lock-out”
responsibility for the machinery or equipment, the lock being removed
must be replaced with a “danger tag” describing the status of the
repair job, the work that remains to be done, the date, and the name
and clock number of the employee leaving the “tag” so that additional
information can be obtained if necessary. Upon the arrival of the
oncoming employee, this “danger tag” should be reviewed immediately,
then removed and replaced with the employee’s own lock.
If an employee leaves the plant without removing his safety padlock
from the machinery or equipment, the employee’s foreman or next
higher authority must be notified. The foreman or next higher
authority, before making the necessary arrangements with the Tool
Control Department to obtain a key to remove the safety padlock,
must exhaust all available means and sources of information to verify
that the employee leaving the safety padlock has actually left the plant.
(These efforts may range from utilizing the Manpower Management
System to determine if the employee has clocked out to actually
10
telephoning the employee’s home. If telephoning becomes necessary,
the purpose and importance of the call must be made immediately
known to the party answering the telephone). Having verified that the
employee has left the plant, a key to remove the safety padlock may
be obtained from the Tool Control Department with the signed
approval of the foreman or next higher authority and the Health &
Safety Representative, or in his absence a Plant Security Officer,
(Form F64D). Once removed, the oncoming employee must replace
it with his o~tyt lock and determine the status of the machinery or
equipment before proceeding with necessary repair work.
GM’s written procedural steps meet the requirements set out in
8 1910.147(c)(4)(ii)(C). Item 4 of Citation No.1 of Docket No. 91-3117 will be vacated.
Docket No. 91-3116
Facts
On September 9 and 10,1991, OSHA Compliance Officer Steven Medlock conducted
an inspection at GM’s Ohio Delco Products plant in Vandalia, Ohio (Tr. 252). The
inspection was conducted in response to a complaint filed by Thomas Ashbum, the health
and safety representative for Local 87 of the United Rubber, Cork, Linoleum & Plastic
Workers of America (Exh. C-6; Tr. 385, 390). Ashbum filed his complaint following an
incident in which an employee, Kaye Lowe, was injured while working on a piece of
equipment known as the A-7 module.
The A-7 module is one of several modules in that area of the plant where ball joints
are transferred from one location to another by robots (Tr. 255). The robots are located
in the modules, which can be entered by gates which are interlocked (Tr. 437, 439). In
addition to a robot, there are two tables, a dial table and a dust seal table, which are
partially enclosed by the fencing which surrounds the module (Tr. 425-431). Employees
work at stations on the perimeter of the tables on the side of each table which extends
outside of the enclosure (Exh. R-2 of No. 91-3116). Four employees, two at each table,
operate
-
the equipment (Tr. 329). The robot picks up and transfers parts between the two
tables (Tr. 348-349). As ball joints are transferred from one location to another, different
operations are performed on the ball joints (Tr. 255). One of the operations performed on11them involves inserting grease into the ball joints. This operation is performed inside of the
robot module.
GM stipulated that it “knew that once or more times a shift, an operator or
maintenance employee could hit the emergency stop and go through the gate of the
interlock barrier guard surrounding the A-7 or A-9 robot modules to perform housekeeping
or service and maintenance activities, without locking out the robot or the dial table or the
dust seal table” (Tr. 405406). According to the Secretary’s theory of the case, on the day
that Lowe was injured, she entered the robot module by opening the gate to release a ball
joint that had become stuck at the point where the greasing is performed. As Lowe
attempted to release the ball joint, the grease unit on the dial table cycled (Tr. 456). Lowe
was struck on the back of her forearm with grease. The grease penetrated Lowe’s skin, and
she had to be taken to the hospital to have the grease removed (Tr. 397). GM disputes the
Secretary’s claim that Lowe entered the module by opening the module’s gate. GM claims
that Lowe crawled through the gate, thus failing to activate the interlock by opening the
gate. GM claims that it could not duplicate the accident while the module’s gate was not
open (Tr. 456-457).
During his inspection, Medlock observed an employee enter the robot area and stand
within the swing radius of the robot’s arm. The employee was removing a cart or picking
up some loose pieces from the floor. The employee did not lock out the equipment before
entering the gate (Tr. 273).Item 1 of Citation No. 1 Alleged Violation of 8 1910.147(c)(4)(iiThe Secretary alleged that GM committed a serious violation of 0 1910.147(c)(4)(ii)
with respect to the modules for failure to clearly and specifically outline the scope, purpose,
authorization, rules and techniques to be used, and the means to enforce compliance in its
energy control procedures. The Secretary argues that GM’s employees were exposed to the
unexpected release of energy while working on the modules.12 Parry, GM’s expert, testified as to the sequence of events necessary to restart theequipment in the module once the electrically interlocked gate had been opened (Exhs. R-2,
R-3, R-4 of No. 91-3116; Tr. 424-433):
Close and latch the gate;
Push the master start button on one of the two control panels on the
right-hand control station panel;
Push the “power on” button with a light indicating that has occurred;
At a separate control location, the operator would push a “start
Hydraulic” button;
Once that lights up, the operator pushes the “swage motor” on button;
Once that lights up, the operator pushes the three “index motor” on
buttons;
Then the “cycle start” button is pushed, which starts the “dial table”
but does not result in a fully operational system;
At a different control panel for the “dust seal table,” the operator
pushes “power on”; LAfter that lights up, the operator switches from manual to automatic mode; Then the “cycle start” button is pushed; From a third operations panel controlling the “teach pendant,” the operator pushes a start button; and Simultaneously, the operator must intentionally push the arrow button down (Tr. 424-433). The operators at the control panels are only 3 to 4 feet away from any employee whomight be performing work within the controlled area, in plain view of the operators (Tr.
453) .
As in the previous case, No. 91-3117, Parry’s testimony is given greater weight than
that of the compliance officer. The Secretary contends that Lowe was injured even though
she had opened the module’s gate. GM contends that Lowe’s accident could not have
happened unless the gate was closed. Based upon the record, it is impossible to determine
which version of Lowe’s accident is true. It is the Secretary, however, who has the burden
of proof. Parry’s detailed analysis of the steps necessary to cause the robot to cycle raises13a sufficient doubt as to the Secretary’s proof. The Secretary has failed to establish by a
preponderance of the evidence that employees working on the module were exposed to the
unexpected release of stored energy. The citation for item 1 of Citation No. 1 of No. 91-3116
will be vacated.Item 1 of Citation No. 2 Alleged Violation of 6 1910.147(c)(4)(i)The Secretary alleged that GM committed a repeat violation of 8 1910.147(c)(4)(i)
for failure to develop, document and utilize energy control procedures to protect employees.
The citation alleges that GM violated this provision in that:
(1) Operators performing work in the robot envelope and/or on equipment
capable of being locked out did not utilize lockout. In addition, work
in the envelope or on equipment such as GMFAl robot modules A4,
A7, A8, A9, and Al4 had been performed utilizing emergency stops
and other control circuit devices as the deenergizing method, rather
than “line voltage” type disconnects.
(2) Maintenance employees performing work on equipment capable of
being locked out did not always utilize lockout. In addition, work on
equipment such as GMFAl robot modules A4, A7, A8, A9, and Al4
had been performed utilizing emergency stops and other control circuit
devices as the deenergizing method, rather than “line voltage” type
disconnects.
As noted in the previous section, the Secretary has failed to establish that a hazard
of an unexpected release of stored energy exists in the instant case. This item will be
vacated.Docket No. 91-2973 Facts OSHA compliance officer Richard Liston also inspected GM’s Vandalia, Ohio, plantin response to another complaint filed by Thomas Ashbum (Tr. 529). Ashbum filed the
complaint because he believed that GM did not enforce the use of lockout devices on its
Lamb C and J car lines (Tr. 510).14The Lamb C car line produces a ball joint socket (Tr. 511). Pallets move around a
transfer machining line where multiple functions are performed on the part (Tr. 581). There
are cutting tools and drills that perform operations on the ball joints as they travel
throughout the line (Tr. 515). As the ball joints move around the line, they are machined
to certain specifications (Tr. 511).
Two employees who work on the line are responsible for loading and rotating the
sockets as they move around the line (Tr. 513-514). These employees work inside the line.
Two other employees work on the outside of the line and are responsible for gauging the
parts (Tr. 557-558). These employees are also charged with knocking down chips and
making tool changes. “Chip knock down” involves cleaning out the chips which are
produced from the machining of the sockets (Tr. 590). Chips are knocked down at regular
intervals and at the end of each shift (Tr. 531-532). In addition to clearing the chips as they
pile up, the employees must make tool changes which involve removing and replacing the
tools on the machine. The tool changes require the operator to turn a set screw with
one-third of a turn, knock out the small triangular carbide insert, and then replace the insert
(Tr. 614-615). Tool changes are customarily made at the beginning of each shift (Tr. 531).
Ashbum testified that he frequently observed employees knocking down chips and
changing tooling without first affixing a lockout device to the equipment (Tr. 533). Richard
Evans, a Lamb line operator, stated that he regularly knocked down chips and changed tools
without locking out the equipment first (Tr. 545).Item 1 of Citation No. 1 Alleged Violation of 6 19010.147(d)(4)(i)The Secretary alleged that GM violated 8 1910.147(d)(4)(i), which provides:
Lockout or tagout devices shall be affixed to each energy isolating device by
authorized employees.
The Secretary contends that GM violated the cited standard because, by not requiring
its employees to lock out when knocking down chips or making tool changes, it exposed the15employees to the hazard of an unexpected release of energy. As in the previous items
involving the lockout standard, GM contends that its employees were not exposed to a
hazard and, thus, the lockout standard is not applicable to the cited circumstances.
GM detailed the procedure that its employees go through when knocking down chips
and making tool changes.
Prior to performing the chip knockdown or tool change, the operator performing
these functions places the South “LAMB C” Car Line Load Station Push Button Panel (Exh.
R-1 of No. 91-2973) to single cycle (Tr. 558-559). The operator proceeds to the Main Push
Button Console (Exh. R-2 of No. 91.2973), which is located in the center of the equipment,
and turns the coolant off. This shuts down the entire transfer line. The operator then turns
the particular “head,” requiring a tool change or chip knockdown, to manual. (1d.J Then
the operator opens an electrically interlocked gate (Tr. 560). Opening up the interlock gate
also automatically shuts the coolant off, even if the “coolant off’ button had not been
switched, in accordance with standard operating procedure (Tr. 562). The operator would
be aware of an operational malfunction if the gate were opened and the coolant did not
stop. In normal production operations, the “dog” prevents the machine head from fully
retracting. Thus, the operator next moves or “flips” the “dog” so that he can get the
machine head to the fully retracted position where the tools can be reached. The operator
then closes the gate, restoring power to the “head,” and manually returns the head to a
process position. Once the head is back in place, the electrically interlocked gate is
reopened to perform the tool change or chip knockdown. A lo-inch wrench was used to
actually perform the chip knockdown.
If someone attempted to restart the equipment at any time during this process,
nothing would occur except that a series of warning bells would sound (Tr. 563, 567, 587).
As an additional safeguard, at all times there are two emergency stop cords which run the
length of the machine and are within an arm’s length of the operator performing the chip
knockdown or cleaning operation (Tr. 568). When either of these cords are pulled,
everything on the machine is shut off.
Parry testified at length about the restart sequence that must occur once the
equipment was shut down or an electrical interlock gate is open (Exh. R-3 of No. 91-2973;16Tr. 581-589). The restart sequence from a “power off’ and “coolant off’ position is as
follows:(1) Turn the main disconnect switch on south control panel “on,” which
places electrical power into the electrical panels;(2) Press and hold the master start button on the interior control panel
(this resulting in a four-second delay, during which time a bell rings
which alerts anyone within the area that the master start button has
been activated);(3) Change the coolant selector from off to on; (4) Ensure all interlock gates are closed; (5) Ensure that all “heads” have been taken out of manual mode (failure to do so will result in a bell and button light on the control panel, but no activity can occur); (6) Push hand or automatic mode on master control panel; (7) Push the start button pertaining to the conveyor line and two transfer lines; (8) Push a spindle start button, resulting in a four-second delay, during which time bell rings. (The above activates one spindle at a time, which requires a total of about 20 to 25 seconds.) (9) Then the coolant actually begins to flow in an operational mode (still no convevor line activitvl: d 4 1’ (10) The operator would then change the cycle button from single stroke to continuous; and . (11) Then the start cycle button is pushed, resulting in another four-second delay, during which time bells ring prior to pallet and conveyor line movement. This sequence must be followed before there can be the possibility of any movement(Tr. 588). There is no way to “short cut” this startup or initiate movement without following
the above sequence in order (Tr. 593). If an employee attempted to short cut this sequence,
nothing would happen and the machine would remain “sitting there” (Tr. 589). With regard
to a minor tool change or chip knockdown, the above procedure starts at step (3) and
requires a total of eight separate and deliberate actions to initiate movement and fully
reactivate the transfer line. This startup warning sequence takes a substantial period of
time, during which bells are rung at three separate points during the process.
In the unrebutted expert opinion of Parry, the chip knockdown and minor tool
changes do not require lockout because there was a long startup sequence with numerous
and adequate warnings prior to the possibility of motion which could cause injury
(Tr. 596-597). Thus, there could be no “unexpected energization or startup, or release of
stored energy” on the equipment which could cause injury to an employee.
Once again, the testimony given by Parry is more persuasive than that adduced by the
Secretary. The sequence detailed by Parry precludes an unexpected release of energy. The
citation issued in Docket No. 91-2973 will be vacated.FINDINGS OF FACT AND CONCLUSIONS OF LAW The foregoing decision constitutes the findings of fact and conclusions of law inaccordance with Federal Rule of Civil Procedure 52(a).
ORDER Based upon the foregoing decision, it is ORDERED that the items cited in theseparate cases be disposed of as follows:
Docket No. Citation No. Item Standard Disposition Penalty
91-3117 1 4 0 1910.147(c)(4)(ii) Vacated -O-
2 1 6 1910.147(c)(4)(i) Vacated -O-
91-3116 1 1 0 1910.147(c)(4)(ii) Vacated -0.
2 1 8 1910.147(c)(4)(i) Vacated -O-
91-2973 1 1 6 1910.147(d)(4)(i) Vacated -O-
18
Based upon the stipulation of the parties, which is fully set forth on pages one and
two of this decision, the items specified therein are affirmed, modified or vacated in
accordance with the agreement of the parties.
EDWIN G. SALYERS
Judge
Date: April 22, 1993
19
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