These LOTO decisions by the OSHRC are HUGE in establishing some “minimums” for LOTO procedures, periodic inspections, and training for “affected” and “other” employees. Readers should pay very close attention to the details that OSHA used in their arguments of how poorly “machine-specific procedures” were written (missing data, conflicting data, no magnitudes listed, etc.). The facility really wasted the court’s time with their arguments (my professional opinion) as OSHA had their ducks in a row, AND the facility made it easy for OSHA… i.e., plenty of low-hanging fruit for OSHA to pick from within their LOTO program! Here are the LOTO decisions:
NOTE: This case also involved a machine-guarding decision, which can be seen in the full decision.
PLEASE NOTE: emphasis has been added by me – NOT the OSHRC
The Respondent operates a chicken processing facility. A compliance safety and health officer (CO) and an industrial hygienist (IH) for OSHA inspected the facility between November 29, 2011, and January 26, 2012. The CO conducted a workplace safety standards inspection, and the IH conducted a workplace health standards inspection. As a result, on May 14, 2012, the Secretary issued a separate “Citation and Notification of Penalty” for each inspection, and the Respondent timely contested both. The Safety Citation alleged five citation items: items 1, 2, and 3 alleged serious violations of the control of hazardous energy standard (lockout/tagout), 29 C.F.R. § 1910.147; item 4 alleged three instances of a serious violation of the general machine guarding standard, 29 C.F.R. § 1910.212; and item 5 alleged a serious violation of the machine guarding standard pertaining to “mechanical power-transmission apparatus,” 29 C.F.R. § 1910.219.
As described below, two citation items are vacated:
(1) item 5 of citation 1 of the Safety Citation, involving the machine guarding standard at § 1910.219; and
(2) item 1 of citation 2 of the Health Citation, involving the injury and illness recording standard at § 1904.04.
All the other citation items are affirmed, with an aggregate penalty of $22,000.00 assessed in connection with the four affirmed Safety Citation violations and a penalty of $5,100.00 assessed for the single affirmed Health Citation violation.
Background
The Respondent operates a poultry processing facility where it employs approximately 300 workers. The Respondent’s facility processes between 17,000 and 39,000 birds per operating day. The maximum operating speed for its production line is 90 birds per minute. Live birds are delivered to the facility, where they are slaughtered, processed, and eventually shipped to retailers either as “whole birds” or in parts, depending on the custom order.
OSHA commenced the Safety Inspection and the Health Inspection simultaneously on November 29, 2011, with the CO and the IH conducting an opening conference and requesting certain written materials. The Respondent’s vice president for operations was among the Respondent’s representatives participating in the opening conference.
The CO and IH did not conduct an inspection walk-through of the facility until January 26, 2012. During the walk-through, the CO was accompanied by the Respondent’s quality control manager and its safety manager.
Secretary’s Burden of Proof
To establish a violation of an OSHA standard, the Secretary must prove that:
- the cited standard applies;
- the terms of the standard were violated;
- one or more employees had access to the cited condition; and
- the employer knew, or with the exercise of reasonable diligence, could have known, of the violative condition.
A violation is “serious” if there is a substantial probability that death or serious physical harm could result from the violative condition. If the possible injury addressed by a regulation is death or serious physical harm, a violation of the regulation is serious. “This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is a likely result if an accident does occur.”
Safety Citation, Items 1, 2, and 3 – Control of Hazardous Energy (Lockout/Tagout), § 1910.147
Items 1, 2, and 3 of citation 1 of the Safety Inspection alleged serious violations of the general industry standard set forth in 29 C.F.R. § 1910.147, which bears the descriptive heading “Control of hazardous energy (lockout/tagout)” (LOTO). The LOTO standard is intended to allow employees to service and maintain machines or equipment safely, generally through the shutdown and de-energization of a production process and the isolation of energy sources.
The Respondent does not dispute that the LOTO standard applies to the service and maintenance of certain machines and equipment at its facility but rather contends that the Secretary failed to establish that it violated the standard as alleged in items 1, 2, or 3.
Safety Citation 1, Item 1 – Specific Procedural Steps, § 1910.147(c)(4)(ii)(B)
Item 1 alleges that the Respondent had violated § 1910.147(c)(4)(ii)(B) “throughout the facility” because its energy control procedures did not provide “specific steps for the shutting down, isolating, blocking, and securing machine or equipment to control hazardous energy.”
Section 1910.147(c)(4) requires that energy control procedures be “developed” and “documented,” providing specifically as follows:
(4) Energy control procedure.
(i) 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.
(ii) 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.
The CO requested that the Respondent provide documentation on its LOTO program, and in response, the Respondent provided a sixteen-page document titled “LOCK-OUT/TAG-OUT,” which was received as Exhibit C-11. A description of Exhibit C-11 follows.
The cover page Exhibit C-11 bears the title “LOCK-OUT/TAG-OUT” and contains the following two paragraphs:
“Lockout/Tagout (LOTO)” refers to specific practices and procedures to safeguard employees from the unexpected energization or startup of machinery and equipment, or the release of hazardous energy during service or maintenance activities. In order to ensure our employees’ safety, we have provided specific guidelines for them to follow.
The company has required the signatures of every personnel subject to the knowledge and understanding of Lockout/Tagout. Following the cover page, the second page of Exhibit C-11 is titled “Lock-Out/Tag-Out Policy and Procedures.” This page sets forth the Respondent’s LOTO “Policy” to be as follows:
“POLICY: No employee shall undertake any work on equipment unless the equipment is fully secured against accidental start-up, movement, or release of electrical, mechanical, hydraulic, pneumatic, chemical, or thermal energy.” This page also includes the following five-item list that is captioned “Procedure:”
- Prior to beginning work on any piece of equipment that could start-up, move or release stored energy, the employee(s) will de-energize the equipment.
- The employee(s) will then lock-out any valve, switch, breaker or other control which supplies energy to the equipment. The employee(s) will then attach a dated and signed tag that indicates the reason for the lockout.
- Before carrying out any further work on the equipment, the employee(s) will appropriately test the equipment to ensure that it is de-energized.
- Each employee who routinely is required to lock-out controls, shall be issued personal locks and keys which shall be used for isolating equipment while that employee services the particular pieces of equipment.
- A lock will only be removed by the person who installed it. The lock will be removed only when the person who installed it is satisfied that it is safe to remove the lock and re-start the equipment.”
Pages 3 and 4 of Exhibit C-11 set forth a list of 26 items of “equipment/machinery” that “is to be lockout/tagout before pre-op inspection.” This list is set out in its entirety in Appendix A to this Decision.
As reflected in Appendix A, the list is set out in columnar format with the first column describing the item of “equipment/machinery” and a second column bearing the heading “Electrical Panel/Location.” The second column appears intended to describe the corresponding “energy isolating device” (defined in paragraph (b) of the LOTO standard as a “mechanical device that physically prevents the transmission or release of energy”) for the item of equipment/machinery reflected in the first column, along with the location of that energy isolating device. For example, for all three “Feather Pickers,” the second column identifies “Panel #19” to be the “electrical panel” for the machines, and the location of this electrical panel is described as “In the Closet Across From All Three Pickers.” (Ex. C-11, p. 3; see Appendix A to this Decision).
Page 5 of the LOTO exhibit is a blank “LockOut/TagOut” log form with six columns as follows:
Date; Equipment; Identity #; Location; Start Time; End Time.
Pages 7 through 11 of Exhibit C-11 are titled “Lockout-Tagout Program.” The entirety of these pages is set forth in Appendix B to this Decision.
Each of the final five pages of the sixteen-page exhibit appears to be a record of training in LOTO for an individual employee, each page bears a single unique signature without any date, and two of the signatures bear the date 9/3/09. Another page in the sixteen-page exhibit is an unsigned version of the same LOTO training material.
The material that the Respondent presented to the CO as representing its LOTO program and procedures does not meet the requirement of paragraph (c)(4)(ii)(B) to contain “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines and equipment to control hazardous energy.” Those specific procedural steps must cover certain elements and actions that are described in paragraphs (d)(1), (2), (3) & (5) of the standard as follows:
(d) Application of control.
The established procedures for the application of energy control (the lockout or tagout procedures) shall cover the following elements and actions and shall be done in the following sequence:
(1) Preparation for shutdown. Before an authorized or affected employee turns off a machine or equipment, the authorized employee shall have knowledge of the type and magnitude of the energy, the hazards of the energy to be controlled, and the method or means to control the energy.
(2) Machine or equipment shutdown. The machine or equipment shall be turned off or shut down using the procedures established for the machine or equipment. An orderly shutdown must be utilized to avoid any additional or increased hazard(s) to employees as a result of the equipment stoppage.
(3) Machine or equipment isolation. All energy isolating devices that are needed to control the energy to the machine or equipment shall be physically located and operated in such a manner as to isolate the machine or equipment from the energy source(s).
* * * *
(5) Stored energy.
(i) Following the application of lockout or tagout devices to energy isolating devices, all potentially hazardous stored or residual energy shall be relieved, disconnected, restrained, and otherwise rendered safe.
(ii) If there is a possibility of reaccumulation of stored energy to a hazardous level, verification of isolation shall be continued until the servicing or maintenance is completed, or until the possibility of such accumulation no longer exists.
“[T]he purpose of the lockout procedure is to guide an employee through the lockout process.” Drexel Chem. Co., 17 BNA OSHC 1908, 1913 (No. 94-1460, 1997). The requirement of paragraph (c)(4)(ii) that “the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy” be “clearly and specifically outline[d]” was intended to prevent “overgeneralization” in the description of LOTO procedures, because such “[o]vergeneralization can result in a document which has little or no utility to the employee who must follow the procedure.” The energy control procedures must contain enough detail to provide employees with a clear understanding of the energy control measures and procedural steps to effectively and safely control hazardous energy during servicing and maintenance activities.
Exhibit C-11 fails to provide sufficient detail and adequate guidance for an employee to clearly understand how to safely and effectively utilize hazardous energy control measures for any particular item of machinery/equipment being serviced or maintained as required by paragraph (c)(4)(ii) of the LOTO standard.
The Respondent’s LOTO program, as set forth in Exhibit C-11, lists 26 items of machinery/equipment to which LOTO applies. (This list of 26 items is set forth in its entirety in Appendix A to this Decision.) For some of those 26 items, Exhibit C-11 contains only cryptic descriptions of the type and location of energy isolating device for the item, and is far from being either specific or clear. For example,
- For two of the items (oil sac cutter; chiller rnd. table) no location description for the designated electrical panel is provided.
- For another item (ventor) only the location of the electrical panel is described, without any description of the “number” on the applicable “electrical panel.”
- The second column for both the “Cropper” and the “Trim table” provides neither a number for the applicable electrical panel number nor a location description, but instead provides respectively “Lockable Disconnect” and “Cord & Plug.”
- The second column for the “Crate Conveyor” and the “Live Bird Conveyor” both identify the same electrical panel number, but describe slightly different locations for the same numbered panel (“across from kill rm. bathroom” vs. “outside wall of kill rm. bathroom”).
- The second column entry for both the “Final Wash” and the “Long Sucker” is blank, thus providing no information about the identity or location of their respective energy isolating devices.
The CO discovered during the inspection that the numbered “electrical panels” identified on the 26-item list were not circuit breakers as could be inferred from the use of the term “electrical panel,” but rather were individual electrical disconnect switches for the item of equipment indicated. The CO regarded this to be potentially confusing to an employee who relied on the list to identify the applicable energy isolating device, in that an employee might identify a numbered circuit breaker contained within an electrical control panel as the applicable energy control device, rather than a single electrical disconnect switch that bore a specific number.
For the most part, Exhibit C-11 merely restates general performance requirements set forth in § 1910.147, with scant description of specific methods for meeting those performance requirements. The procedures are lacking in specificity and clarity in many ways, some of which are described below. The material in Exhibit C-11 contains no procedural steps designated to apply to any specific item of machinery/equipment listed. Rather, the procedural steps contained in Exhibit C-11 are by their very terms “general,”, e.g. “General Safety Guidelines” and “General Management” procedures. These “general” procedures describe the process for the development of procedures that are specific to each item of machinery/equipment, through the completion of the described “Survey For Applying Lockout/Tagout Devices” “for every piece of machinery or equipment requiring Lockout/Tagout procedures.” (Ex. C-11, p. 8; Appendix B to this Decision). The general procedures state that this survey information “will be placed into the Lockout/Tagout Database.” (Id.). However, there is no evidence of any such survey having been conducted, or the existence of any “Lockout/Tagout Database” other than the material contained within Exhibit C-11.
There is no description of the type and magnitude of the energy to be controlled, or the hazards of the energy to be controlled, for any given item of machinery/equipment, as is required by paragraph (d)(1) of the standard. Exhibit C-11 lacks any such information even though eight items of machinery/equipment subject to LOTO (lung sucker; gizzard harvester; pack-out line; cut-up line; breast/wing conveyor; cut-up saws; repac machines; and freezer tunnel) use one or more of the following types of energy: electrical, pneumatic, high-powered water; CO2 gas, and mechanical. Exhibit C-11 fails to specify that any of these eight items of machinery/equipment have multiple forms of energy. Nor does it contain any description of the means and method of how such multiple forms of energy are isolated or controlled. For example, while the lung sucker appears to be powered by electrical energy, it uses pneumatic energy in its operation, but nothing in Exhibit C-11 indicates whether both the electrical energy and pneumatic energy are controlled through the same energy isolating device.
Although the procedures require the use of either lockout or tagout, there is nothing in the procedures that indicates what energy isolating devices, if any, are subject to tagout rather than lockout (where the device is not capable of being locked out – see § 1910.147(c)(2)).
Exhibit C-11 is devoid of any information describing whether any stored or residual energy is present in any of the items of machinery/equipment, as well as any description of the method to dissipate such stored energy, as required by paragraph (d)(5) of the standard. For example, there is no mention in Exhibit C-11 regarding the presence or magnitude of any high-pressure water energy, or the method of dissipating any such stored energy.
Even if Exhibit C-11 were regarded as containing the “specific procedural steps” required by paragraph (c)(4)(ii)(B), it would nevertheless constitute only a single procedural outline to be applied universally to each of the 26 items of machinery/equipment identified. In view of the variety and complexity of machine/equipment types, and in view of the variety of energy types and energy sources present in the facility, a single procedure is insufficient to specifically and clearly describe the energy control measures required to stop, de-energize, and isolate unique or different energy sources for each of the 26 items of machinery/equipment to which the procedure applies.
The Respondent argues the sufficiency of its LOTO procedures should not be considered by evaluating Exhibit C-11 alone. Rather, the Respondent contends that Exhibit C-11 should be considered along with other written LOTO program that the Respondent was required to develop to comply with a requirement imposed by the Food Safety and Inspection Service (FSIS) of the U.S. Department of Agriculture (USDA). The FSIS required the Respondent to develop a LOTO program to protect the FSIS inspectors who conduct food sanitation inspections on site at the Respondent’s chicken processing facility. (The documentation pertaining to the FSIS LOTO procedures was received in evidence as Exhibit R-2.) The Respondent’s argument is rejected.
Exhibit R-2 by its terms establishes a LOTO program for the purpose of protecting FSIS inspectors from hazardous energy during “preoperational process verification inspection or verification of preoperational or operational corrective action tasks” that the FSIS inspectors perform at the Respondent’s poultry processing facility. Unlike the Respondent’s LOTO program set forth in Exhibit C-11, the FSIS LOTO program does not purport to protect the Respondent’s employees from hazardous energy during their servicing or maintenance of machines or equipment.
It is significant that the Respondent did not provide Exhibit R-2 to the CO in response to the CO’s request for the Respondent’s LOTO documentation, but rather provided only Exhibit C-11. Nor did the Respondent ever mention the existence of the FSIS LOTO documentation to the CO during the course of the Safety Inspection. The Respondent’s failure ever to bring the FSIS LOTO documentation to the CO’s attention strongly suggests that the Respondent did not regard those materials to constitute the documentation of LOTO procedures intended for the protection of its own employees.
Further, even considering together the LOTO materials contained in Exhibits C-11 and R-2, the combined materials would still fail to meet the requirement of paragraph (c)(4)(ii)(B) to “clearly and specifically outline” the “[s]pecific procedural steps for shutting down, isolating, blocking and securing machines or equipment to control hazardous energy.”
For example, Exhibit R-2 also provides only a single general description of LOTO performance requirements that apply universally to each of 26 separate items of machinery/equipment. It is devoid of any outline of procedures that would be specific to any one of the varied and complex items of machinery or equipment at the facility. Further, provisions in Exhibit R-2 require both FSIS employees and “plant employees” to “refer to the documented plant lockout/tagout procedures” for the following specific information:
A. Description and location of machinery or equipment subject to lockout/tagout.
B. Type and magnitude of the energy that the machine or equipment utilizes.
C. Hazards of the energy.
D. Type and location of machine or equipment operating controls.
E. Type and location of energy isolating devices.
F. The lockout/tagout procedure used to lockout or tagout the machine or equipment.
G. Type of stored energy and method to dissipate or restrain.
As discussed above, the Respondent’s lockout/tagout procedure as reflected by Exhibit C-11 is seriously lacking in providing the specific information and procedures on the items set forth in the list quoted above. Exhibit R-2 contains a list of same 26 items listed in Exhibit C-11, and is also in the same columnar format. However, the list in Exhibit R-2 differs from the list in Exhibit C-11 with respect to some of the 26 items. For example, for the “stunner,” Exhibit C-11 indicates that its “electrical panel” is “Panel #17” that is located in the “hallway between Kill and Evis.,” while Exhibit R-2 indicates its electrical panel is the “stunner panel” that is located in the “pump room.” Moreover, there are five diagrams of floor plans depicting different areas of the processing facility in Ex. R-2 that appear to designate the locations of the “lock-out/tagout” for various items of machinery/equipment. These diagrams include:
(a) information about some machinery/equipment that is not described in the 26-item list (e.g., “foot picker,” “thigh and drumstick deboner,” “corr vac,” “labeler,” “vacuum sealer,” “pallet wrap machine,” “scalder steam valve” location, “water valve” location),
(b) information about “lock-out/tag-out” locations for machinery/equipment that are not included in the 26-item list (e.g. “feather room exhaust fan lock-out/tag-out”), and
(c) information that conflicts with the information specified in the 26-item list (e.g., a floor plan diagram indicates that the “live crate conveyor” and the “feather crate conveyor” are controlled by different electrical panels, while the 26-item list indicates that all crate conveyors are controlled by the same electrical panel).
The information contained in Exhibit R-2 adds very little specificity to the information contained in Exhibit C-11, and rather than adding clarity, it muddles and in some respects conflicts with that information. The great weight of the evidence establishes that the Respondent violated the LOTO standard in the manner described in item 1 of citation 1 of the Safety Citation.
The Respondent conducts LOTO whenever the plant is operating, and thus employees who implement those operations were exposed to the deficient LOTO procedures. The Respondent had actual knowledge of the violation because it developed and implemented the violative written procedures. The violation was aptly characterized as “serious,” in that death or serious physical harm could result from an employer failing to have LOTO procedures that meet the requirements of paragraph (c)(4)(ii)(B).
Safety Citation 1, Item 2 – Periodic LOTO Inspection, § 1910.147(c)(6)(i)
Item 2 of citation 1 alleges that the Respondent violated § 1910.147(c)(6)(i) “on or prior to 1/26/2012” on the asserted ground that “throughout the facility” the Respondent had failed to conduct a periodic (at least annual) inspection of its energy control procedure “to ensure that the procedure and the requirements of [the LOTO] standard were being followed.” The item averred that the most recent periodic inspection had occurred in May 2008.
Section 1910.147(c)(6) provides as follows:
(6) Periodic inspection.
(i) The employer shall conduct a periodic inspection of the energy control procedure at least annually to ensure that the procedure and the requirements of this standard are being followed.
(A) The periodic inspection shall be performed by an authorized employee other than the ones(s) utilizing the energy control procedure being inspected.
(B) The periodic inspection shall be conducted to correct any deviations or inadequacies identified.
(C) Where lockout is used for energy control, the periodic inspection shall include a review, between the inspector and each authorized employee, of that employee’s responsibilities under the energy control procedure being inspected.
(D) Where tagout is used for energy control, the periodic inspection shall include a review, between the inspector and each authorized and affected employee, of that employee’s responsibilities under the energy control procedure being inspected, and the elements set forth in paragraph (c)(7)(ii) of this section.
(ii) The employer shall certify that the periodic inspections have been performed. The certification shall identify the machine or equipment on which the energy control procedure was being utilized, the date of the inspection, the employees included in the inspection, and the person performing the inspection.
The Secretary points to the notation “Revised 5/27/2008” on pages 7 to 11 of Exhibit C-11 (the content of which is reflected in its entirety in Appendix B to this decision) as proof that the Respondent had last conducted an inspection in 2008.
The Respondent did not create any certification containing the information specified by paragraph (c)(6)(ii) to document that any periodic inspection had been performed. Similarly, there is no positive evidence that as part of any periodic inspection the Respondent conducted “a review, between the inspector and each authorized employee, of that employee’s responsibilities under the energy control procedure being inspected,” as required by paragraph (6)(i) of the standard. The absence of any positive evidence that the Respondent conducted an inspection, including the absence of any written certification that an inspection had been conducted, is sufficient evidence from which reasonably to infer that the Respondent failed to conduct the inspection required by paragraph (c)(6)(i) of the standard.
The Respondent asserts that it complied with the standard by virtue of having renewed with FSIS, in December 2011, its “Cooperative Agreement For Lockout/Tagout Procedures Between FSIS and Official Establishments.” This argument fails for at least two reasons.
First, as discussed previously, the FSIS LOTO procedures are in place to protect FSIS employees who are on site to conduct food sanitation inspections, not to protect the Respondent’s employees while they are servicing and maintaining machinery and equipment. Thus, the Respondent’s renewal of its Cooperative Agreement with FSIS is simply not the equivalent of a periodic inspection of the Respondent’s program required by paragraph (c)(6) of the standard.
Second, there is no evidence that the renewal of Cooperative Agreement with FSIS included the elements required by paragraph (c)(6) of the standard to be inspected. For example, there is no evidence that the renewal included “a review, between the inspector and each authorized employee, of that employee’s responsibilities under the energy control procedure being inspected,” as required by paragraph (6)(i)(C) of the standard.
The evidence shows that employees were exposed to the violative condition. The Respondent must conduct LOTO procedures every day that the plant operates, and thus employees who implement those operations were exposed to LOTO procedures that had not been subject to review and inspection as required by paragraph (c)(6). (T-2, p. 90-91). The Respondent had actual knowledge of the violation because its management knew that no periodic inspection of the program elements specified in paragraph (c)(6) had been conducted. The violation is aptly classified as “serious.” If the Respondent had properly performed the required periodic inspection, the deficiencies in its procedures, as discussed in connection with item 1 of citation 1, would have been identified, and presumably quickly remedied. Death or serious physical harm could result from an employer failing to conduct at least an annual inspection to ensure that its procedures meet the LOTO standard and are being followed.
Safety Citation 1, Item 3 – LOTO Training, § 1910.147(c)(7)(i)
Item 3 of citation 1 alleges that on and prior to 1/26/2012 the Respondent had violated § 1910.147(c)(7)(i) “throughout the facility” by not providing training on LOTO procedures to “employees exposed to and affected by the application of Lockout Tagout procedures and control devices.”
Section 1910.147(c)(7)(i) provides as follows:
(7) Training and communication. (i) The employer shall provide training to ensure that the purpose and function of the energy control program are understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees. The training shall include the following:
(A) Each authorized employee shall receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation and control.
(B) Each affected employee shall be instructed in the purpose and use of the energy control procedure.
(C) All other employees whose work operations are or may be in an area where energy control procedures may be utilized, shall be instructed about the procedure, and about the prohibition relating to attempts to restart or reenergize machines or equipment which are locked out or tagged out.
The terms “affected employee” and “authorized employee” are defined in paragraph (b) of the standard (as is the term “servicing and/or maintenance,” which is used within those definitions) as follows:
Affected employee. An employee whose job requires him/her to operate or use a machine or 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.
Authorized employee. 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.
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.
Paragraph (c)(7)(iv) sets forth a certification requirement for required training as follows:
“The employer shall certify that employee training has been accomplished and is being kept up to date. The certification shall contain each employee’s name and dates of training.”
The Respondent has provided LOTO training only to those employees whom it has identified as being “authorized employees.” And the only employees it has identified as “authorized employees” are those who work in its Sanitation, Maintenance, and Quality Control departments. The Respondent has not provided any LOTO training to the employees assigned to production line positions, many of whose jobs require them to work around machines and equipment on which are performed service or maintenance under lockout/tagout. Nor has the Respondent provided any training specified by paragraph (c)(7)(i)(C) to “other employees whose work operations are or may be in an area where energy control procedures may be utilized,” and who are neither “authorized” nor “affected” employees as defined.
The Respondent asserts that its production area workers are neither “authorized employees” because none lock out or tag out equipment, nor are they “affected employees” because none of their “job[s] require him/her to work in an area in which such servicing or maintenance is being performed,” as the definition of “affected employee” specifies.
The Respondent grounds the argument that none of the production area workers is “affected employees” on the following testimony of the QC Manager, to the effect that no production area workers are near any machinery or equipment when servicing and maintenance under lockout/tagout is being performed:
Q. What are production employees required to do when something needs to be locked out?
A. Typically, the production employees aren’t on the floor. In normal circumstances, where it would be used would be during sanitation, where the entire facility is being prepared for pre-operational inspection and there are no production employees in the establishment that time, and at that point you have just a quality control and sanitation and that’s the only people in the facility at that point. And the other time where it would be lockout/tagout would need to be used would be if, you know, something needs to be disassembled or maintenance done on it, and during that time you cannot have product on the floor to risk contamination. So product would be removed from the floor and there would be no production employees down there. They would be sent on break.
QC Manager testified further on cross-examination by counsel of the Secretary as follows:
Q. So … is it your testimony that over the three years that you have been with “the company” there have been instances in which the company has had to cease production during the work day to conduct repairs to its equipment?
A. I know of situations where that has happened, and what typically happens is the product is cleared from the area and the employees are put out – told to take lunch early.
Q. So the non-authorized employees are asked to leave while the repairs are conducted?
A. Correct. It’s a small facility. We don’t have a lot of room to move around.
QC Manager’s testimony is far from conclusive on whether production area employees are never present on the production floor whenever service or maintenance events occur that require the execution of LOTO procedures. It is notable that she stated that production employees are not on the production floor during such activities “typically.” Moreover, it is significant that nothing in the Respondent’s LOTO program or procedures requires production employees to vacate the production floor at the initiation or duration of LOTO procedures.
Nevertheless, even accepting the Respondent’s argument that no production area employees will ever have the status of an “affected employees” as defined in paragraph (b) of the standard, the evidence establishes that such employees are “other employees” within the meaning of paragraph (c)(7)(i)(C) of the standard. On November 17, 2011, a production floor employee who was engaged in normal production operations bypassed a partial guard on a chicken skinner machine in an effort to clear debris that had built up, resulting in a serious laceration.
According to the QC Manager, rather than attempting to clear the machine by bypassing the guard, the injured employee should have “hit the stop button” and then summoned maintenance department employees (who have been trained in LOTO as “authorized employees”) to clean or unjam the machine using lockout procedures. The action that the employee should have taken according to the QC Manager (“hit the stop button”) is one of the steps required to be taken as part of the LOTO process, as specified by paragraph (d) of the standard. Thus, accepting for purposes of this analysis the Respondent’s argument that none of its production area workers ever have the status of either “authorized” or “affected” employees, the record establishes that those employees should have received some LOTO training as “other employees” pursuant to paragraph (c)(7)(i)(C) of the standard, because their “work operations are or may be in an area where energy control procedures may be utilized.” The Respondent violated the standard by failing to provide those employees with any LOTO training.
The Secretary has established that the Respondent violated paragraph (c)(7)(i) as alleged in item 3 of citation.
The production area employees who received no LOTO training were exposed to the violative condition, most notably the production area employee who sustained an injury while attempting to clean skinner machine on November 17, 2011, without initiating LOTO procedures. The Respondent had actual knowledge that it had not trained any of its production area employees in LOTO. The violation is aptly characterized as serious. Death or serious physical harm could result from an employer failing to provide the LOTO training required by the standard.
CLICK HERE to see the full decision