Gary Visscher, Esq.
Commission Issues Series of Decisions on LOTO Machine Guarding
In a series of three decisions, the Occupational Safety and Health Review Commission (OSHRC) emphasized that a violation of the machine guarding requirement of OSHA’s Lockout Tagout (LOTO) standard requires OSHA to prove that employee access and exposure to the moving part of other hazard is not just possible but “reasonably predictable.” In all three cases, an employee suffered an injury from contacting moving machine parts. The Commission’s decisions emphasize that the fact of an injury did not prove that the standard was violated. An employee’s exposure to the hazard must be reasonably predictable in normal operations.
In Aerospace Testing Alliance, (OSHRC, 9/21/2020), an employee was operating a shearing machine at a sheet metal shop. The machine had pistons, each with a guard to prevent an operator from putting his or her hand under the piston, to hold the metal sheet in place during cutting. The injury occurred when an operator removed his glove to slide his finger under the guard and placed his fingers under one of the pistons during the machine’s operation. At the same time, he inadvertently pressed the shear’s foot pedal, causing the piston to lower and crush the tip of his finger.
In Wayne Farms, (OSHRC, 9/22/2020), an employee lifted a grate and reached inside a hopper of a breading machine to dislodge flour from the side of the hopper. As he did so, paddles at the bottom of the hopper activated and caught his smock, pulling his arm and hand into the mechanism. The evidence at the hearing showed that employees were not required or allowed by the company’s safety procedures to lift the grate and put their hands inside the hopper, and on previous occasions where the employee had attempted to manually clean the hopper, he had been told not to do so anymore. The hopper was automatically cleaned out at the end of each day and that “if flour was present on the inside of the hopper [during a work shift], it could be knocked off by the striking the outside of the machine.”
In the third case, Dover High Performance Plastics, (OSHRC, 9/25/2020), a lathe operator at a plastics parts manufacturer was injured when he reached into a milling machine to adjust a part being milled. The machine was programmed to start and stop automatically, with a limited amount of time between cycles. The operator did not withdraw his hand before the next cycle began and the cutting tool cut his hand. After the accident, the lathe was reprogrammed to require that operators manually initiate the next cycle.
All three employers were cited for violations of 1910.212 (a)(1), which states in relevant part, “One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.”
The Commission described the standard as a “performance standard” in that it “states the result required rather than specifying that a particular type of guard must be used” and “require[s] an employer to identify the hazards peculiar to its own workplace and determine the steps necessary to abate them.”
In Aerospace Testing Alliance, the Commission relied on the wording of the standard to require that exposure to the hazard was “reasonably predictable.” The Commission said that the word “protect” in 1910.212 (a)(1) was not intended to require guards that prevent an employee from intentionally circumventing the guard. (“In a case such as this one, a compliant guard may not always, nor does it need to, prevent intentional exposure to the hazard.”) Citing precedents, the Commission said that noncompliance with the guarding requirement requires proof that exposure to the hazard is reasonably predictable during normal operations.
Those previous cases require that exposure be “reasonably predictable either by operational necessity or otherwise (including inadvertence).” The Commission found that there were other, acceptable ways that employees could and were supposed to use to hold a small metal piece in place which did not require putting one’s hands under the piston and guard (and included a photo of this area of the machine to illustrate the point). The ALJ had found that the hold down piston guards were inadequate because they do not prevent an employee’s fingers from “inadvertently slipping under the guard during normal operations.” The Commission disagreed; this was not inadvertence, the Commission said. The employee “had to first remove his glove before intentionally placing his fingers under the piston guard.”
In Wayne Farms, the Commission relied on the traditional elements that OSHA must prove for a violation: that the cited standard applies, that there was a failure to comply with the standard, that employees were exposed to the violative condition, and that the employer knew or should have known of the violative condition. The Commission said that proving the third element – exposure to the violative condition – under 1910.212 (a)(1) “hinges on whether the operator’s actions were reasonably predictable given the machine’s normal operations.”
The Commission affirmed the ALJ’s factual finding that manual cleaning of the hopper and placing one’s hands below the grate was not required during the machine’s normal operations. The Commission found that “the record establishes that [the injured employee’s] act of reaching into the moving parts of the hopper … was the intentional, idiosyncratic behavior of only one employee.”
In Dover High Performance Plastics, the Commission affirmed OSHA’s citation for the guarding of the lathe but vacated the citation insofar as it applied to two mills. The Commission found that at the time of the employee’s injury, it was reasonably predictable that an employee would not complete the task of removing the plastic part before the next production commenced. However, the Commission found that regarding the mills, there was no evidence in the record that exposure to the hazard was reasonably predictable.
OSHA argued that employee exposure could occur, for example, during cleaning of the machine or if an employee standing outside the machine was accidentally bumped by another employee. The Commission said that those arguments were entirely speculative and the company had in fact submitted contrary evidence regarding the machine cleaning. The Commission also cited testimony from company officials that they had not experienced or heard of any incidents involving employees bumping into each other in the manner that OSHA suggested since the plant opened in 1990.
The citation that OSHA issued to Dover High Performance Plastics was issued as a willful violation. The Administrative Law Judge upheld the willful characterization, based on the company having received a prior machine guarding citation in 2007, and because after the 2012 accident involving the lathe operator, the company did not require the machine doors to be closed during operation but only required the operator to manually start the production cycle. The Commission found that the company’s actions, changing the machine programming from an automatic timed start to requiring a manual start, was “objectively reasonable” action to eliminate all exposure to the moving parts, and compliance did not require that the doors be closed during machine operation. Based on the company’s actions (which occurred after the accident), the Commission recharacterized the citation for the lathe machine guarding from willful to serious.