DECISION
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
On June 16, 2009, a service mechanic employed by Otis Elevator Company (“Otis”) injured
his hand while unjamming the gate of a freight elevator at Boston Store, a department store in
Brookfield, Wisconsin. Following an investigation of this accident, the Occupational Safety and
Health Administration (“OSHA”) issued a serious citation to Otis under the Occupational Safety and
Health Act of 1970 (“Act”), 29 U.S.C. §§ 651-678.
The citation item at issue alleges that Otis
violated 29 C.F.R. § 1910.147(f)(2)(i), a provision in the lockout/tagout (“LOTO”) standard that
requires an “outside employer” and an “on-site” employer to inform each other of their respective
LOTO procedures.
Administrative Law Judge Dennis L. Phillips vacated the item, concluding that the LOTO standard was not applicable and that, in any event, the cited provision did not require Otis, the outside employer, to inform Boston Store, the on-site employer, of its LOTO procedures. For the reasons that follow, we reverse the judge and affirm the citation item.
BACKGROUND
On the day of the accident, Otis assigned a service mechanic to repair a freight elevator at Boston Store. The Otis dispatcher who made the assignment informed the mechanic that the elevator’s “car gate was hung up and not functioning.” When functioning properly, the elevator’s metal gate opened whenever an employee pushed a button in the hallway next to the elevator. The mechanism that controlled the gate included two chain assemblies located on the rooftop of the elevator car—one on each side adjacent to the gate. Each chain assembly included vertical and horizontal chains attached to separate sprockets. The horizontal chains were powered by one of the motor’s pulleys which, when operating properly, raised and lowered the gate.
After he arrived at the store, the mechanic talked to “a couple [Boston Store] employees,” who confirmed that “the gate was hung up on the [elevator] car.” He then walked to the freight elevator and observed that the gate was partially open leaving a three-foot gap between it and the floor. He also observed an out-of-order sign in the hallway by the elevator. He tried to move the gate, yanking on it “[p]retty hard,” but it did not budge. After ducking underneath the gate to enter the elevator car, he used a ladder to access the car’s escape hatch and climbed on top of the car.
Once on top of the car, the mechanic flipped two switches to prevent anyone from calling the
elevator or moving the gate electrically.
He then examined one of the gate’s chain assemblies and
determined that the gate could not move because the assembly’s chain “was off the sprocket” and
jammed. The mechanic decided that he would attempt to fix the gate by prying the chain back onto
the sprocket. He testified that when he did this, the chain started moving as he had anticipated, and
he “intentionally” grabbed it with his hand, resulting in his hand being “drug through the sprocket
and chain.” He explained that he grabbed the chain because he “was worried about . . . the gate
slamming and busting” the link that connected a counterweight to the gate. According to the
mechanic, if the connecting link had broken, the repair would have taken longer because he would
have had to “fish” the counterweight out of the box in which it was housed.
DISCUSSION
The cited provision of the LOTO standard, § 1910.147(f)(2)(i), states that “[w]henever outside servicing personnel are to be engaged in activities covered by the scope and application of this standard, the on-site employer and the outside employer shall inform each other of their respective lockout or tagout procedures.” It is undisputed here that Otis was the “outside employer” and Boston Store was the “on-site employer,” and Otis concedes that it did not inform Boston Store of its LOTO procedures.
Before us on review are the following issues: (1) whether the Otis mechanic, as “outside servicing personnel,” was “engaged in activities covered by the scope and application” of the LOTO standard; (2) if so, whether the cited provision required Otis to inform Boston Store of its LOTO procedures; (3) whether compliance with the cited provision would have been infeasible; and (4) in the event a violation has been established, whether it is serious.
Scope and application of LOTO standard
The LOTO standard’s scope “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. § 1910.147(a)(1)(i) (emphasis in original). Its application section states that the “standard applies to the control of energy during servicing and/or maintenance of machines and equipment.” 29 C.F.R. § 1910.147(a)(2)(i). For purposes of the LOTO standard, “[s]ervicing and/or maintenance” includes activities such as “unjamming of machines or equipment . . . where the employee may be exposed to the unexpected energization or startup of the equipment or release of hazardous energy.” 29 C.F.R. § 1910.147(b) (emphasis in original).
The judge concluded that the Otis mechanic’s work did not fall within the scope of the LOTO standard, finding that “there was no potential for an unexpected release of stored [gravitational] energy while [the mechanic] performed his work on the gate chain and sprocket atop of the elevator car.” In support of this conclusion, the judge found that the mechanic “expected and fully anticipated that the gate and the chain would begin moving” once the chain was placed back onto the sprocket. The Secretary argues that the judge erred because the mechanic’s unjamming work is specifically covered under the standard.
Contrary to the judge’s conclusion, applicability of the LOTO standard does not turn on whether or not the unjamming process happened to proceed as the Otis mechanic expected. See Elliot Constr. Corp., 23 BNA OSHC 2110, 2119, 2012 CCH OSHD ¶ 33,231, p. 56,071 (No. 07-1578, 2012) (noting that the “ ‘purpose of the Act is to ;4742;4742prevent the ;4744;4744first ;4745;4745accident’ ” (citation omitted)). The standard applies if there was the potential for an unexpected release of stored energy that could cause injury to the mechanic. 29 C.F.R. § 1910.147(a)(1)(i); see Gen’l Motors Corp., 22 BNA OSHC 1019, 1023, 2004-09 CCH OSHD ¶ 32,928, p. 53,606 (No. 91-2834E, 2007) (consolidated) (“Energization is ‘unexpected’ in the absence of some mechanism to provide adequate advance notice of machine activation.” (citations omitted)).
We find that this potential was present during the unjamming activity the mechanic performed here. See, e.g., Control of Hazardous Energy Sources (LOTO), 54 Fed. Reg. 36,644, 36,646-47 (Sept. 1, 1989) (final rule) (indicating that effort to unjam wood wedged in energized table-saw blade created potential for unexpected energization). There was stored kinetic energy in the elevator’s jammed chain assembly due to the weight of the partially open gate. Although the mechanic testified that the chain was off the sprockets and jammed “tight as could be,” and that he “expected” the chain would move once he “unwedged” it, the record does not show that he could predict when the jam would yield. In fact, the mechanic’s own testimony shows that the release of energy surprised him: “I reacted, and I guess I grabbed [the chain] with my hand” to prevent the gate from slamming and breaking the counterweight link. (Emphasis added.) See Gen’l Motors Corp., 22 BNA OSHC at 1023, 2004-09 CCH OSHD at p. 53,606; compare Reich v. Gen’l Motors Corp., 89 F.3d 313, 315 (6th Cir. 1996) (affirming Commission’s holding that LOTO standard did not apply to servicing activities performed on deactivated machines that were “designed and constructed so that [they could not] start up without giving a servicing employee notice of what [was] about to happen”), aff’g 17 BNA OSHC 1217, 1993-95 CCH OSHD ¶ 30,793 (No. 91-2973, 1995) (consolidated).
Moreover, we find that the release of stored energy posed a caught-in hazard to the mechanic.
Even if he had not reflexively grabbed the chain, his work necessarily placed him in close proximity
to it, and a body part or piece of clothing could have been inadvertently caught in the chain, or
between it and the sprocket, when the stored energy released.
See Control of Hazardous Energy
Sources (LOTO), 54 Fed. Reg. at 36,647 (noting that performance of maintenance or servicing
activities “expose the employee to the hazard of being pulled into the operating equipment when
parts of the employee’s body, clothing or the material or tools used for cleaning or servicing become
entrapped or entangled in the machine or equipment mechanism”); Burkes Mech., Inc., 21 BNA
OSHC 2136, 2139 n.4, 2004-09 CCH OSHD ¶ 32,922, pp. 53,561-62 n.4 (No. 04-0475, 2007)
(finding laborers cleaning near conveyor were “positioned in such a way” that conveyor “could have
unexpectedly caught hold of their tools, clothing, or body parts—all types of hazards § 1910.147 was
intended to eliminate” (citations omitted)). The Otis mechanic was, therefore, engaged in “service
and/or maintenance” within the meaning of the LOTO standard’s scope provision. 29 C.F.R. §
1910.147(a)(1)(i), (b).
In support of his contention that the LOTO standard applies here, the Secretary relies on 29
C.F.R. § 1910.147(a)(2)(ii), which generally excludes “[s]ervicing and/or maintenance which takes
place during normal production operations” from coverage under the LOTO standard, but includes
such work pursuant to paragraph (a)(2)(ii)(B) if, as relevant here, “[a]n employee is required to place
any part of his or her body into an area on a machine or piece of equipment . . . where an associated
danger zone exists during a machine operating cycle.” 29 C.F.R. § 1910.147(a)(2)(ii), (ii)(B). Even
if the work here was done during “normal production operations,” we find that the LOTO standard
applies because the record establishes that this criterion for coverage under the standard has been
met.
As we have already found, the Otis mechanic was on top of the elevator car—where an
employee using the elevator would not ordinarily be positioned—performing an unjamming activity
that placed parts of his body in a “danger zone,” i.e., an area where a release of energy stored in the
gate assembly could result in a caught-in hazard.
See 29 C.F.R. § 1910.147(b) (defining
“[s]ervicing and/or maintenance” as including “unjamming of machines or equipment . . . where the
employee may be exposed to the unexpected . . . release of hazardous energy” (emphasis in
original)); Burkes Mech., 21 BNA OSHC at 2139 n.4, 2004-09 CCH OSHD at pp. 53,561-62 n.4.
Moreover, the mechanic was in this danger zone “during a machine operating cycle,” as the record
shows that the elevator’s gate was in a partially open position as the mechanic worked to unjam the
chain, and then closed once he unjammed it. Under these circumstances, we conclude the LOTO
standard covers Otis’s unjamming activity.
Alleged Violation of § 1910.147(f)(2)(i)
In vacating the citation, the judge concluded that there was “no possibility” of Otis and
Boston Store employees interacting or creating “misunderstandings,” based on his findings that: (1)
“[t]he only ‘zone of danger’ was on the elevator car top near the chain and sprocket” and “[t]he only
employee who would ever be on the elevator car top . . . would be an Otis employee,” and (2) there
was no evidence that Boston Store employees were either “affected” or “authorized” employees
under the LOTO standard.
On review, the Secretary argues that the standard presumes the potential
for such interaction and/or misunderstandings whenever an outside employee is performing an
activity covered by the LOTO standard.
We agree with the Secretary’s reading of the standard. By its terms, § 1910.147(f)(2)(i)
applies “[w]henever outside servicing personnel are to be engaged in activities covered by the scope
and application of [the LOTO] standard . . . .” (Emphasis added.) As discussed above, the Otis
mechanic was engaged in such covered activities. The cited provision, which is a specification
standard,
presumes that in this situation a Boston Store employee may interfere with “the restrictions
and prohibitions” of Otis’s energy control program.
See Control of Hazardous Energy Sources
(LOTO), 55 Fed. Reg. 38,677, 38,683 (Sept. 20, 1990) (final rule) (stating that § 1910.147(f)(2)(i)
is “a way to prevent misunderstandings by either plant employees or outside service personnel
regarding [in part] . . . the restrictions and prohibitions imposed upon each group of employees by
the other employer’s energy control program”); Joseph J. Stolar Constr. Co., 9 BNA OSHC 2020,
2024 n.9, 1981 CCH OSHD ¶ 25,488, p. 31,783 n.9 (No. 78-2528, 1981) (“The Commission has
held that, when a standard prescribes specific means of enhancing employee safety, [a] hazard is
presumed to exist if the terms of the standard are violated.”). And unlike other provisions in the
LOTO standard that specifically reference “authorized” or “affected” employees, see, e.g., 29 C.F.R.
§ 1910.147(c)(6), (c)(7), (d)(4), (d)(6), (e), no such reference is contained in the cited provision. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[I]t is a general principle of statutory
construction that when ‘Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’ ” (citation omitted)).
Otis would have us find that § 1910.147(f)(2)(i) applies only to “situations like a factory floor with machines on which both the employees of the employer controlling the building and another, different contractor are expected to . . . service [equipment].” But such a reading contradicts the plain language of the provision, which (1) defines its scope in terms of the activities of only the outside servicing personnel, not the activities of the on-site employer, and (2) links its applicability to the full breadth of activities covered by the LOTO standard: “[w]henever outside servicing personnel are to be engaged in activities covered by the scope and application of [the LOTO] standard . . . .” 29 C.F.R. § 1910.147(f)(2)(i) (emphasis added). The scope and application section of the standard, § 1910.147(a), excludes only certain specific industries, equipment, and activities that have no relevance to the instant case. In short, the language in the standard that establishes the cited requirement’s applicability precludes the interpretation urged by Otis. See Arcadian Corp., 17 BNA OSHC 1345, 1347, 1995-97 CCH OSHD ¶ 30,856, p. 42,916 (No. 93-3270, 1995) (“ ‘In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstances, is finished.’ ” (citations omitted)), aff’d, 110 F.3d 1192 (5th Cir. 1997).
Otis also argues that the cited provision applies only where both the outside and on-site employers have LOTO procedures, and thus is inapplicable here because Boston Store lacked its own procedures. Specifically, Otis relies on the provision’s use of the word “respective”—“the on-site employer and the outside employer shall inform each other of their respective lockout or tagout procedures,” 29 C.F.R. § 1910.147(f)(2)(i) (emphasis added)—which Otis defines as “relating to two or more persons or things regarded individually; particular.” According to Otis, this shows that the provision’s requirement is contingent on both employers having their own LOTO procedures.
We disagree. The term “respective,” even as defined by Otis, does not establish that the
outside employer’s duty under the provision is conditioned on the on-site employer also having
procedures; it simply means that each employer has a duty to provide its own procedures to the other
employer. This is also evident from the structure and context of the standard.
Section 1910.147(f)(2)(ii), the provision that follows the one cited here, requires the on-site
employer to “ensure that his/her employees understand and comply with the restrictions and
prohibitions of the outside employer’s energy control program.” Even if Boston Store did not have
its own procedures, it needed Otis to comply with paragraph (f)(2)(i) so that it could identify what
information to provide to its own employees, and Otis needed Boston Store to comply with
paragraph (f)(2)(ii) to help protect the Otis mechanic.
Not only would Otis’s interpretation defeat
the purpose of these provisions, it would lead to the absurd result that the protections afforded by
paragraph (f)(2)(ii) to outside contractor employees would be rendered inapplicable where the on-site
employer violates a requirement to have its own LOTO procedures. See American Tobacco Co. v.
Patterson, 456 U.S. 63, 71 (1982) (“Statutes should be interpreted to avoid . . . unreasonable results
whenever possible.”); Unarco Commercial Prods., 16 BNA OSHC 1499, 1502, 1993-95 CCH
OSHD ¶ 30,294, p. 41,732 (No. 89-1555, 1993) (“It is well established that a statute or, in this case,
a standard must be construed so as to avoid an absurd result.”). Therefore, we conclude that the cited
provision places a separate obligation on “each employer” to inform the other employer of its LOTO
procedures that is not dependent on the existence of the other employer’s procedures.
Having determined that the Secretary’s interpretation of § 1910.147(f)(2)(i) is supported by the provision’s plain language, we conclude that Otis failed to comply with this provision because (1) Otis’s work on the elevator was covered by the LOTO standard; (2) Boston Store and Otis were the on-site and outside employers, respectively; and (3) Otis admits that it did not inform Boston Store of its LOTO procedures.
Infeasibility
Before the judge and again on review, Otis raises the affirmative defense of infeasibility, claiming that (1) it cannot determine in advance of a particular job which of “a potentially ‘endless’ amount of different energy control procedures” will be applicable; (2) it may have difficulty finding personnel in a building to inform of its LOTO procedures; and (3) compliance with the provision could hinder its ability to respond to an emergency situation, “such as emergency call backs with trapped passengers.” To prove infeasibility, Otis must show by a preponderance of the evidence that “ ‘(1) literal compliance with the terms of the cited standard was infeasible under the existing circumstances and (2) an alternative protective measure was used or there was no feasible alternative measure.’ ” Westvaco Corp., 16 BNA OSHC 1374, 1380, 1993-95 CCH OSHD ¶ 30,201, p. 41,570 (No. 90-1341, 1993) (emphasis added) (citation omitted).
None of Otis’s claims are relevant to the circumstances that existed at Boston Store. First, based on the information the Otis mechanic received from Boston Store employees and his own initial observation, he knew before starting his work on the elevator that the gate was jammed. Determining what energy control procedure to utilize in that situation was straightforward because, in addition to shutting down the electrical components of the elevator, Otis’s LOTO procedures merely required the mechanic to “block up [the gate] mechanically or with a Bi-Parting Door Tool to prevent unexpected gate movement.” Second, the Otis mechanic talked to Boston Store personnel about the elevator before servicing it. He could have provided LOTO procedures to Boston Store at that point or asked them who to inform. Finally, there was no emergency when the Otis mechanic first arrived on site—the elevator gate was simply jammed. Otis, therefore, has not shown that it would have been “ ‘infeasible under the existing circumstances’ ” to inform Boston Store of the applicable LOTO procedures before the mechanic commenced his work. Id. (emphasis added) (citation omitted). Accordingly, we affirm the citation.
Characterization and penalty
On review, Otis challenges the Secretary’s characterization of the violation as serious, claiming that the violation should be classified as de minimis. Section 17(k) of the Act, 29 U.S.C. § 666(k), provides that “a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result” from the violation. A violation is de minimis, however, “when a deviation from the standard has no ‘direct or immediate’ relationship to employee safety.” Star Brite Constr. Co., 19 BNA OSHC 1687, 1691, 2001 CCH OSHD ¶ 32,511, p. 50,434 (No. 95-0343, 2001) (citation omitted); 29 U.S.C. § 658(a) (noting that de minimis violations are those “which have no direct or immediate relationship to safety or health”). But see Caterpillar, Inc. v. Herman, 131 F.3d 666, 668 (7th Cir. 1997) (“[W]e accept the Secretary’s view that the Commission cannot label a violation de minimis and disregard it; that would transfer the Secretary’s prosecutorial discretion to the Commission. If the Secretary issues a citation, the Commission must determine whether the violation occurred and set an appropriate penalty.” (citation omitted);1508;1508).
Absent information from Otis about its LOTO procedures, Boston Store was precluded from
evaluating those procedures “and determin[ing] what information need[ed] to be provided to [Boston
Store] employees.” Control of Hazardous Energy Sources (LOTO), 55 Fed. Reg. at 38,683. Had
LOTO procedures been implemented here, Boston Store’s inability to provide its employees with
proper instruction could have, in turn, made it more likely that a Boston Store employee would
interfere with the use of those procedures, exposing the mechanic to serious injury from a release
of stored energy. Indeed, a Boston Store employee could have removed a wedge or Otis’s Bi-Parting
Door Tool, or even pulled on the gate as the Otis mechanic unjammed the chain.
See Flintco, Inc.,
16 BNA OSHC 1404, 1405-06, 1993-95 CCH OSHD ¶ 30,227, p. 41,611 (No. 92-1396, 1993)
(establishing that serious characterization requires Secretary to show “ ‘an accident is possible and
there is a substantial probability that death or serious physical harm could result from the accident’
” (citation omitted), and holding that judge erroneously relied upon likelihood of accident occurring
to characterize violation as non-serious). We therefore reject Otis’s argument and affirm the
violation as serious.
However, we find the Secretary’s proposed penalty of $5,000 excessive under the circumstances here. The likelihood of an accident resulting from a Boston Store employee interfering with Otis’s LOTO procedures (had they been implemented) was exceptionally low: an out-of-order sign had been placed by the elevator before the Otis mechanic arrived at the store; only a limited number of Boston Store employees were present at the time because the servicing activity was being performed before the store opened for business; and the record shows that Boston Store employees, as part of their jobs, were not responsible for servicing the freight elevator, at least when the Otis mechanic was assigned to perform the servicing activity. Siemens Energy, 20 BNA OSHC at 2201, 2004-09 CCH OSHD at p. 53,231 (noting that principal factor in penalty determination is gravity, which “is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury”). Thus, upon consideration of all of the penalty factors, we find a penalty of $500 to be appropriate.
ORDER
We affirm Citation 1, Item 2 as serious and assess a penalty of $500.
SO ORDERED.
/s/________________________________
Thomasina V. Rogers
Chairman
/s/________________________________
Cynthia L. Attwood
Dated: April 8, 2013 Commissioner
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, D.C. 20036-3457
Secretary of Labor, |
|
Complainant, |
|
v. |
OSHRC Docket No. 09-1278 |
Otis Elevator Company, |
|
Respondent. |
|
APPEARANCES:
For the Complainant:
Bruce Canetti, Esq.
U. S. Department of Labor
Office of the Solicitor
Chicago, Illinois 60604
For the Respondent:
Paul Waters, Esq.
Akerman Senterfitt
Sun Trust Financial Centre, Ste. 1700
401 E. Jackson Street
Tampa, Florida 33602-5250
Before: Dennis L. Phillips
Administrative Law Judge
DECISION AND ORDER
Background
This proceeding is before the Occupational Safety and Health Review
Commission (the Commission) pursuant to Section 10(c) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. (the Act). Otis Elevator Company (Otis or
Respondent) designs, manufactures, installs and services elevators, escalators, and
moving walks for commercial and residential buildings. (Exh. 10).
On June 16, 2009,
Otis employee Ken Nauholz injured himself with hand lacerations while repairing a gate of a
freight elevator at an Otis worksite in Brookfield, Wisconsin. (Tr. 48). Occupational Safety and
Health Administration (OSHA) was notified of the incident by the Brookfield Police
Department. (Tr. 47). Between June 26 and July 20, 2009, OSHA conducted its investigation of
the incident. As a result of that investigation, OSHA issued a Citation and Notification of
Penalty to Respondent alleging two serious violations of the Act. The first item charged Otis
with a violation of 29 C.F.R. § 1910.147(d)(3) for Mr. Nauholz’ failure to use an energy isolating
device to block the gravity energy in a freight elevator gate while working. The second item
alleged a violation of 29 C.F.R. § 1910.147(f)(2)(i) (standard) for not using energy control
procedures to secure the gravity energy of the gate and not informing or obtaining energy control
procedures from the customer to be used for the repair. Respondent filed a timely Notice of
Contest. Prior to trial, the parties stipulated that Citation 1, Item 1 was withdrawn. Therefore,
only Citation 1, Item 2 concerning the use and exchange of energy control procedures remained
in dispute at trial. The proposed penalty is $5,000. A trial was conducted in Milwaukee,
Wisconsin on April 6 and 7, 2010. Both parties submitted post-trial, reply and supplemental
briefs in support of their respective positions.
Cited Standard
The cited standard provides:
29 C.F.R. § 1910.147(f)(2)(i): Whenever outside servicing personnel are to be engaged in activities covered by the scope and application of this standard, the on-site employer and the outside employer shall inform each other of their respective lockout or tagout procedures.
Complainant alleges in Citation 1, Item 2 that:
29 C.F.R. § 1910.147(f)(2)(i): When outside personnel were engaged in activities covered by the scope and application of the standard, the onsite employer and the outside employer did not inform each other of their respective lockout or tagout procedures: (a) On or about June 16, 2009, an authorized employee was performing repairs to the freight elevator gate in the storeroom at the customer located at 15875 W. Bluemound Road, Brookfield, Wisconsin 53005. Energy control procedures to secure the gravity energy of the gate were not utilized. The company did not inform or obtain the energy control procedures from the customer to be used for this repair.
(Tr. 8-9).
Stipulations
Prior to trial, the parties agreed upon and submitted the following stipulations (Stip.):
1. The Occupational Safety and Health Review Commission has jurisdiction over this matter.
2. Respondent is, and was at all relevant times, a corporation with an office and place of business at 6070 N. Flint Road, Glendale, Wisconsin 53209.
3. Respondent is, and was at all relevant times, engaged in the business of servicing and repairing elevators.
4. Respondent at all relevant times engaged in a business affecting commerce by handling goods or materials which had been moved in commerce.
5. Respondent at all relevant times was an employer employing employees in the business of servicing and repairing elevators, including at the workplace of 15875 W. Bluemound Road, Brookfield, Wisconsin.
6. Boston Store has, and at all relevant times had, a department store at 15875 W. Bluemound Road, Brookfield, Wisconsin, which had a freight elevator.
7. Respondent serviced and repaired the freight elevator at Boston Store on June 16, 2009.
8. Ken Nauholz was an Otis employee sent by Otis to service and repair the freight elevator at Boston Store on June 16, 2009.
9. Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1910.147(d)(3) is withdrawn.
(Joint Prehearing Submission, March 25, 2010).
Jurisdiction
Based on the parties’ pleadings, stipulations and the trial record, I find that Respondent,
at all relevant times, was engaged in a business affecting commerce and was an employer within
the meaning of Sections 3(3) and 3(5) of the Act.
I also find that jurisdiction of this proceeding
is conferred upon the Commission by Section 10(c) of the Act.
I conclude, therefore, that the
Commission has jurisdiction over the parties and subject matter in this case.
Secretary’s Burden of Proof
To establish a prima facie violation of the Act, the Secretary must prove by a preponderance of the evidence that: (1) the cited standard applied to the condition; (2) the terms of the standard were violated; (3) one or more of the employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Offshore Ship Bldg., Inc., 18 BNA OSHC 2169, 2171 (No. 99-257, 2000), Astra Pharm. Prod., 9 BNA OSHC 2126 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). A violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition. 29 U.S.C. § 666(k)(2009). Complainant need not show that there is a substantial probability that an accident will occur; she need only show that if an accident occurred, serious physical harm would result. If the possible injury addressed by the regulation is death or serious physical harm, a violation of the regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 1993).
Relevant Testimony and Findings of Fact
Four witnesses testified at trial: Kevin Robertson, OSHA Compliance Safety and Health Officer (CSHO); Kenneth Nauholz, an elevator service mechanic employed by Respondent; Louis DeLoreto, Respondent’s Senior Manager for Environmental Safety and Health; and George Karosas, Respondent’s expert witness. (Tr. 44, 105, 173, 199). Based on their testimony, the stipulations, and the evidentiary exhibits admitted into the record, the court makes the following factual findings.
On June 16, 2009, Otis service mechanic Ken Nauholz was assigned to a job by his
supervisor Dean Kleveno to repair a damaged gate and elevator at The Boston Store (The Boston
Store or store) in the Brookfield Square Mall, Brookfield, Wisconsin.
(Tr. 48, 68, 105, 107).
At the time of the incident, Mr. Nauholz had eleven years experience as a mechanic with Otis
and about 29 years overall industry experience.
(Tr. 105, 126; Exh. 9). He received the call
through Otis dispatch center in Connecticut through his personal digital assistant. The only
information he received about the job was that the elevator car gate was "hung up and not
functioning." Mr. Nauholz did not know the particular nature of the job and did not have a
particular plan to repair the gate prior to arrival at The Boston Store. He did not have any
anticipation that he would necessarily employ any energy control procedures at the store that day.
(Tr. 108).
The store was not open for business when Mr. Nauholz arrived at about 8:30 a.m. (Tr.
138-39) He signed in with Irene at the store’s entrance. Irene expected him and knew he was
there to work on the elevator. (Tr. 56, 108-09, 139). On his way to the elevator, Mr. Nauholz
encountered a couple of store employees who told him that the gate was "hung up on the car” and
they were not sure why. (Tr. 109). Those employees were not working near the freight elevator,
but in an area "quite a ways from the [elevator] car," in another room where they take shipments
that come in off the trucks.
(Tr. 111, 139). Before working on the distressed elevator, he did
not provide any store employee with a written copy of any Otis lockout/tagout procedure.
(Tr.
156, 188, 254). Mr. Nauholz testified that neither he, nor the elevator service industry, had a
practice of informing customers of Otis’ or the industry’s lockout/tagout procedure when
performing an elevator service or repair call. (Tr. 156). Mr. Nauholz testified that no
lockout/tagout procedures were needed to perform his work on June 16, 2009 at the store. (Tr.
170).
Once at the elevator, Mr. Nauholz proceeded to determine the nature of the problem.
To
do this, he needed to access the elevator cartop by using a large step-ladder inside the elevator
car. (Tr. 112; Exh. T). As he approached the gate, Mr. Nauholz observed that the bi-parting
outer hoistway doors were completely open and the bottom of the gate was approximately three
feet off of the floor.
(Tr. 112-13, 115-18; Exh. T). He saw that the elevator gate was stuck in
the open position. Despite pulling on the gate “pretty hard,” Mr. Nauholz could not move it.
(Tr. 112-13, 119). There was virtually "no way" that the gate would move. Mr. Nauholz
testified that “[y]ou could have hung on it with all your weight, and it wasn’t moving.” (Tr. 119,
122, 158).
No one could enter the elevator car without stooping to get under the elevator’s gate, and,
at five feet five inches tall, Mr. Nauholz had to duck to get under the gate. (Tr. 113-15).
Working alone, Mr. Nauholz positioned an eight-foot red step-ladder just inside the partially
opened gate to access the cartop escape hatch in order to get to the inspection station on top of
the car. (Id., 137, 167; Exh. T at "C" and “G”). At the cartop inspection station, Mr. Nauholz
took the elevator “out of service” so no one could call the elevator away from him and flipped the
“stop switch” to take total control of the elevator. (Tr. 61-62, 113, 119, 143-44, 148-50). He
stated that he “can’t set foot on that car top without having complete control of it.” (Tr. 149).
The mechanism that controlled the movement of the freight elevator gate was also located on the
top of the elevator car on its right side near the front. (Tr. 120-21; Exhs. P, T at "F"). When Mr.
Nauholz examined the door operating mechanism, he saw that the inner gate chain had come off
of its sprocket and had become tightly wedged. This chain was jammed and could not move in
any way mechanically.
(Tr. 119, 121-22, 136, 162-63; Exh. P at “A” and “B”). The chain and
sprocket were worse than he had ever seen before during his previous visits to the store over the
past three years.
(Tr. 56, 73, 157). The only way for the chain to move was for it to be repaired
or "un-wedged." (Tr. 122). Mr. Nauholz decided to pry and restore the chain back onto the
sprocket. (Tr. 56, 122-23).
The gate chain could not move unexpectedly while he pried the chain back onto the
sprocket. Mr. Nauholz expected that the chain would move after the chain was placed back onto
the sprocket and his hand was safely away from the chain. (Tr. 122-23). At that time, he had
control of the gravity energy in the elevator’s gate. When the gate chain began to move as
expected, Mr. Nauholz then made the deliberate and intentional, ill-timed decision to grab the
chain with his hands.
This, unfortunately, caused his injury.
(Tr. 56, 74, 123, 172; Exh. T at
“F”). He grabbed the chain because he was worried about its connecting link breaking when the
gate closed. (Tr. 123-24). Prior to grabbing the chain, Mr. Nauholz had not been in a position
where he could have been injured by that chain. He would not have been injured if he had not
intentionally grabbed the chain. (Tr. 123-25). Otis issued a NAA Safety Citation Form and
written warning to Mr. Nauholz regarding the incident.
(Tr. 53-54; Exh. 9).
The elevator car top where Mr. Nauholz repaired the sprocket and chain mechanism was
under his exclusive control the entire time he was working on top of the car. (Tr. 74, 76, 125,
144-45, 180, 241-42, 269, 271-72). The only way to access the elevator car top was to climb a
large stepladder, go through a hatch in the elevator car roof, and climb onto the top of the
elevator. (Tr. 113). Store employees were not allowed to perform any service or maintenance
on any store elevator equipment or to be on top of the elevator car. (Tr. 74, 76, 110-11, 125-26).
The elevator car top could not be accessed by any Boston Store employee and Mr. Nauholz was
unaware of any Boston Store employee having ever been on the elevator car top.
(Tr. 125-26).
No Boston Store employee was exposed to any injury from any movement of the gate, or its
chain and sprocket, while Mr. Nauholz serviced the elevator.
(Tr. 90, 125-26, 242-43, 270-72).
Only Mr. Nauholz was exposed to any injury from the chain and sprocket and that was because
he intentionally grabbed the chain. (Tr. 126, 246).
Prior to June 16, 2009, The Boston Store had no energy control procedures that applied to
the freight elevator.
(Tr. 81, 213-14). When Mr. Nauholz was at the worksite, there was no
Boston Store employee in any responsible position to receive a copy of Otis' energy control
procedures.
(Tr. 57). Prior to the incident, Otis had developed and implemented policies and
procedures to protect its employees from potentially hazardous energy. (Tr. 175). Otis expected
its employees to analyze the circumstances they confront in the field and determine the hazardous
energy control procedures necessary to perform their work after they arrived at the work site.
(Tr. 177, 214-15). Otis developed specific tools and procedures for working on the bi-parting
freight door such as the one involved in this case. (See Otis Technical Information Publication
(TIP) 28.3-2 (REV) Tools & Procedures for Working on Bi-Parting Freight Doors, dated March
9, 2000 (TIP 28.3-2)(REV), at Exh. B).
This procedure applied to the repair performed by Mr.
Nauholz on the freight elevator’s bi-parting gate. (Tr. 48-49; Exh. B). TIP 28.3-2(REV) called
for the blocking of any stored energy in the elevator door system at the store on June 16, 2009.
(Exh. B, at p. 3).
With Otis’ cooperation, CSHO Robertson interviewed Messrs. Nauholz and Kleveno, and
Otis’ area safety representative, Jeff Case, on July 1, 2009.
Messrs. Kleveno and Case
acknowledged that Mr. Nauholz did not share information regarding Otis’ lockout tagout
procedure with the Boston Store on June 16, 2009 because there were no Boston Store
employees around to actually share that information with. (Tr. 54, 57; Exhs. C-3 through C-4, at
p. 2). Mr. Nauholz never told CSHO Robertson that he intended to use lockout tagout or energy
control procedures before he began his work on the elevator. (Tr. 87). CSHO Robertson was
not told by any Otis employee that they expected Mr. Nauholz to need to perform any task that
required some sort of energy control at the worksite.
(Tr. 88-90). CSHO Robertson made no
inquiry as to whether any company in the elevator industry would have exchanged any type of
energy control program or lockout tagout material with its customer before performing the repair
involved in this case. (Tr. 68-70).
Mr. Nauholz testified that he could not estimate how many different tasks that he performed when servicing elevators called for some sort of energy control procedure because each service call is different with too many variables. He further testified that he did not know what energy control procedures he was going to use before he arrived at the work site. He stated that there are times that he performs repairs on elevators without using any energy control procedures. (Tr. 145-46). He further stated that when he initially goes atop an elevator he may not use any type of energy control procedure because he has not yet assessed the problem. (Tr. 148). He testified that he would have no reason to go near the chain and sprocket atop the elevator unless there was something wrong with either of them. When working atop elevators, he would ordinarily not be near the chain and sprocket. (Tr. 168-70; Exh. P). He stated that it was not feasible for customers to have copies of all of the energy control procedures that he might implement during elevator service calls. He also testified that he was not always able to make contact with building personnel during service calls because “There’s times, a lot of times, where you don’t have someone to talk to….” He also testified that elevator mechanics needed to respond quickly during emergencies when passengers were trapped in elevators. (Tr. 129-31, 135). Mr. Nauholz testified that Otis did not give its proprietary elevator maintenance work procedures to customers because of “liability purposes, if someone else gets a hold of it and performs it wrong, gets hurt, you know, it – we wouldn’t want that happening, ….” (Tr. 133-35).
No employees of The Boston Store were either "affected employees"
or "authorized
employees"
with respect to Mr. Nauholz' work repairing the chain on the freight car door . (Tr.
76, 78, 80, 90, 110-12, 139-40). No potential for interaction with any Boston Store employee
existed while the work was performed on the elevator car top, and no store employee was
expected to be on the car top while the work was being performed. (Tr. 81, 109-10, 170). There
was no exposure to the "unexpected release" of "hazardous" energy to any Boston Store
employee. (Tr. 92-93, 241-43). It was neither Otis' nor industry’s practice to exchange energy
control programs with a customer before allowing its mechanics to perform the type of work Mr.
Nauholz performed on June 16, 2009.
(Tr. 68-69, 70, 91, 156, 177-78). Only in situations
where the mechanic was to interact with another contractor's employees, or the customer's
employees, would such an exchange of energy control procedures be expected.
(Tr. 178).
Without such circumstances, Otis and other companies in the elevator industry would not share
their proprietary energy control procedures. (Tr. 70, 179). Because of the inherently dangerous
nature of elevator work, it is customary in the elevator industry not to share such work
procedures because doing so can increase the risk of injury to untrained, unauthorized and
unlicensed employees of other employers who may try to self-maintain elevators. (Tr. 179).
Mr. Lou DeLoreto, Senior Manager, Environmental Health and Safety, for Otis, North
and South America, and Chairman of the National Elevator Industry's Safety Committee, testified
that he was familiar with no incidents of injury to any elevator or customer employee because of
an elevator company not exchanging its energy control program with that customer before an
elevator mechanic implemented an energy control procedure.
(Tr. 174-75, 183-84, 196). Had
such an incident caused an injury, he would have identified it as part of the root cause
investigation performed by Otis. (Tr. 196-97). Mr. DeLoreto testified that Otis does not have
specific energy control procedures for the more than one hundred varieties of equipment that it
services because of the enormity of the mechanical parts involved. (Tr. 177). He stated that it
was his experience that Otis and all other elevator industry companies did not normally share
control of their hazardous energy programs with their customers.
(Tr. 178-79, 185). He stated
that he did not expect Mr. Nauholz to interact with The Boston Store employees during his
service call on June 16, 2009. (Tr. 178-79). He stated that an initial exchange of energy control
procedures between Otis and its customers provided no increased benefit to Otis or its customer’s
employee’s health or safety.
(Tr. 184).
Otis is one of the largest elevator companies in the world.
(Tr. 186). Otis has
approximately 80,000 customers with more than 200,000 varieties and types of equipment,
excluding escalators, with vintages dating from as early as 1960 to the present to maintain in the
United States.
(Tr. 180, 192, 195). It also maintains more than 5,000 escalators. (Tr. 180).
Mr. DeLoreto testified that it would be impractical, “unrealistic and unfeasible” for Otis to
provide all of its energy control programs to each customer before its service mechanics were
actually allowed to implement control procedures at a work site. (Tr. 180-82). He also testified
that Otis did not typically inform its customers of its lockout/tagout procedures. (Tr. 185-86).
Mr. DeLoreto further testified that it would be “very difficult” for an elevator mechanic to be able to conclude that a customer had an energy control procedure that was appropriate for the particular circumstance found at the work site. (Tr. 181-83). In many instances when performing work on a customer's elevators, even finding an individual employed at the work site to communicate with may not be possible. (Tr. 129-31, 135, 183). Such a requirement could prevent the prompt response to an emergency, such as freeing a trapped passenger in an elevator car. (Tr. 131). Mr. DeLoreto testified that there would be an increased risk to safety extended to both the riding public and the mechanic, as well as the equipment, where an elevator mechanic’s repairs are delayed by any need for Otis and its customers to first exchange energy control procedures that may or may not be appropriate to the circumstance subsequently found at the work site. (Tr. 183, 243-45).
Both Messrs. DeLoreto and Karosas testified where there are no affected or authorized employees of the customer, and no expected interaction between Otis employees and the customer's employees, exchanging energy control procedures created no health and safety benefit for Otis or customer employees. (Tr. 184, 239-41, 245). The CSHO was aware of no instances where the failure of an elevator to inform a customer of its energy control procedures resulted in any injury to the customer's employee. (Tr. 91).
The Court found Mr. George V. Karosas qualified to testify and render expert opinions in matters relating to whether or not: 1) there was any potential for the unexpected release of stored energy due to gravity acting on the elevator car door where there was no potential of interaction of Otis and store employees, 2) there was any potential for injury due to the release of stored energy due to gravity acting on the elevator car door to anyone other than Mr. Nauholz, 3) the lockout/tagout standard contained at 29 C.F.R. § 1910.147 is a performance standard allowing flexibility in the specific means by which the objectives of the standard may be achieved, 4) the goals and objectives of the standard as they relate to the interaction of the Otis outside servicing personnel with the on-site employer were met by the practices employed on June 16, 2009, 5) the failure to secure the gravity energy of the elevator door and the unexpected release of energy resulting in injury to Mr. Nauholz was irrelevant to, and not a basis for the citation regarding noncompliance with 29 C.F.R. § 1910.147(f)(2), 6) disseminating Otis energy control procedures to employers whose employees are not allowed by law to work on elevator equipment would increase the risk of injury to any unauthorized and untrained employees attempting to utilize those procedures or provide any benefit, gain or increase to employee health or safety, and 7) industries such as the elevator industry do not understand or apply 29 C.F.R. §
1910.147(f)(2)(ii) in a manner that requires the exchange of energy control programs because a host employer or a servicing contractor may utilize energy control procedures on equipment when absolutely no interaction of their respective employees can occur when such procedures are utilized on the equipment in question. (Tr. 228; Joint Prehearing Submission, at pp. 3-4).
Mr. Karosas testified regarding industry understanding and the requirements of the
industry consensus standard American National Standards Institute (ANSI) Z-244.1 (Control of
Hazardous Energy, Lockout/Tagout and Alternative Methods).
OSHA used the Z-244.1
standard as a principal reference source when it developed and promulgated OSHA’s energy
control standard, 29 C.F.R. § 1910.147 (The Control of Hazardous Energy Sources
(lockout/tagout)), in 1989.
(Tr. 206-07; Exh. H).
Mr. Karosas testified that he reviewed the Boston Store’s energy control procedures and
found that there was no machine-specific procedure associated with the elevator that existed
when Mr. Nauholz repaired the elevator on June 16, 2009.
(Tr. 213-14, 273). He also
testified that the specific hazard that injured Mr. Nauholz was the sprocket and the chain that
passed over the sprocket that was associated with the elevator gate. Mr. Karosas’ expert report
also stated that Mr. Nauholz “was injured because of his failure to follow Otis’ established
energy control procedure, not because of a failure to inform Bon-Ton [The Boston Store], or a
failure to obtain Bon-Ton’s [The Boston Store’s] (non-existent) procedure.”
(Tr. 216; Exh. I,
at p. 9).
Mr. Karosas testified that the ANSI standard places the responsibility on the host
employer, or customer in this case, to determine the degree of coordination of energy control
programs necessary, as well as apprising outside contractors of any special unique hazards
existing in the host facility operation. (Tr. 231-33, 235-36; Exh. H). Mr. Karosas testified that
under the circumstances present when Mr. Nauholz performed his work on June 16, 2009, ANSI
Z-244.1 would not have required an exchange of energy control programs between Otis and The
Boston Store. (Tr. 238). This is because Mr. Nauholz was the only authorized employee, with
no other affected employees, and Mr. Nauholz had exclusive control over the elevator, with no
reasonable expectation that any other employee would be exposed to any safety hazard or
potential injury.
(Tr. 76, 238, 246, 272). Where there were no other authorized employees, no
affected store employees, and the few store employees at The Boston Store working away from
the elevator were aware that the elevator was being serviced, and with a work area under the
exclusive control of Mr. Nauholz, there was no potential for interaction with any employees of
The Boston Store. (Tr. 241-42, 274). Under the circumstances of June 16, 2009, where Mr.
Nauholz had exclusive control of the work area and no expected interaction with others, the
elevator industry does not ordinarily understand 29 C.F.R. § 1910.147 to require an exchange of
energy control programs. (Tr. 239, 242, 246, 274). Mr. Karosas testified that there was no
health or safety benefit by an exchange of energy control procedures between Otis and the store
on June 16, 2009. This was because there was no store procedure to exchange, no hazardous
energy control store guidance that would benefit Mr. Nauholz, no possibility that a store
employee was an employee authorized to work on the elevator, and no possibility that a store
employee could be an employee exposed to a hazard related to the mechanic’s work. (Tr. 240-41, 245). Mr. Karosas also testified that there was no potential hazard created by Mr. Nauholz
not providing a copy of an energy control procedure to the Boston Store on June 16, 2009. (Tr.
242-43). In his opinion, had Mr. Nauholz disclosed guidance to restrict potentially hazardous
energy to the Boston Store, there is an increased risk that store employees may, at some point,
feel able to perform maintenance on the elevator themselves. (Tr. 243-44; Exh. I, at p. 12).
Mr. Karosas also testified that Mr. Nauholz conveyed enough information to comply with the standard by informing the store that he was there to service the elevator. (Tr. 254-55, 257, 263-66, 275-76).
Mr. Karosas also testified that any propping of the elevator door to prevent gate chain movement on June 16, 2009 would not have triggered a duty to exchange energy control programs under 29 C.F.R. § 1910.147(f)(2)(i). (Tr. 246). He also stated that 29 C.F.R. § 1910.147 was a performance standard that provided Respondent flexibility in how to comply with the standard. (Tr. 263; Exh. I, at p. 4). He testified “that the performance requirements of preventing the injuries due to unexpected energization while servicing and conducting maintenance and servicing operations in the elevator industry are met essentially by the practices in the elevator industry, with respect to the facts in this case.” (Tr. 264-65). He stated that Otis actually and exclusively controlled the area where Mr. Nauholz worked on June 16, 2009. (Tr. 269). He testified that there was no unexpected energization or release of energy that the chain could have inflicted upon Mr. Nauholz because Mr. Nauholz “indicated that it was expected. He controlled it. He knew what was going to happen.” (Tr. 270). He stated that to fall within the standard, the release of energy “has to be unexpected.” (Tr. 270-71).
Discussion
In order to prove the alleged violation, the Secretary must prove that Mr. Nauholz was
engaged in activities on June 16, 2009 that were covered by the scope and application of The
Control of Hazardous Energy (lockout/tagout) standard at 29 C.F.R. § 1910.147.
It has not
done so. The Secretary called only the CSHO to testify at the trial. The evidence before the
Court does not prove that the standard applies. The Commission has stated that 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. § 1910.147(a)(1)(i)(emphasis in original).”
Sec’y of Labor v. Gen. Motors Corp., 17 BNA OSHC 1217, 1218 (No. 91-2973, consolidated,
1995)(“the standard applies only to those machines and pieces of equipment for which
energization or start up would be unexpected by employees”)(emphasis in original), aff'd Reich v.
Gen. Motors Corp., 89 F.3d 313 (6th Cir. 1996). The term "unexpected" is an unambiguous
limitation on the application of the standards. (Gen. Motors Corp., 17 BNA OSHC at 1220).
The standard applies where a service employee is endangered by a release of energy without the
employee's foreknowledge.
Gen. Motors Corp., 89 F.3d at 315.
The Secretary must establish that the hazard of unexpected energizing, start up, or release
of stored energy could occur and cause injury. (Gen. Motors Corp., 17 BNA OSHC at 1218).
As shown by the convincing testimony of Messrs. Nauholz, DeLoreto and Karosas, there was no
hazard of unexpected energization on the elevator car top.
The Secretary’s view that Otis and
its customers are required to inform each other of their respective lockout/tag out procedures
where there is no possibility of “unexpected” energization fails to give effect to the term
“unexpected” as a limitation on the application of the standard. (Id. at 1219-20). In this case,
the evidence proved that there was no potential for an unexpected release of stored gravity energy
while Mr. Nauholz performed his work on the gate chain and sprocket atop of the elevator car.
Mr. Nauholz testified that there was no way to manually move the gate in its broken condition
before he placed the gate chain back onto its sprocket. (Tr. 119, 122, 158).
The only time that the chain, and the gate, could move was after Mr. Nauholz had completed his repair by placing the chain back onto the sprocket. Mr. Nauholz expected and fully anticipated that the gate and chain would begin moving at that point. (Tr. 122). Mr. Nauholz testified:
Q. What expectation did you have for that chain moving once you put the chain back on the sprocket?
A. Well, I expected it to move, because there was only one counterweight holding it. The counterweight was – hung up, too.
(Tr. 122).
No part of Mr. Nauholz' body, including his hand, was in a zone of danger when he put the chain back on the sprocket. (Tr. 123-24). The only reason that Mr. Nauholz injured his hand was because he intentionally grabbed it as it started moving. (Tr. 123, 125). He testified as follows:
Q. Q. Okay. Was your hand in any danger when you put the chain back on the sprocket?
A. No.
Q. Why not? Why wasn’t your hand in any danger?
A. It wasn’t in any danger unless I grabbed the chain, so that was my own –
Q. Ok.
A. – my own doing.
(Tr. 123).
The Court finds Mr. Nauholz’ testimony that he expected the chain to move once he put it back
on the sprocket and that he intentionally grabbed the chain to be entirely credible.
The standard at 29 C.F.R. § 1910.147(f)(2)(i) applies when employers have employees
who potentially can interact in the common work area while the elevator servicing work is being
performed, so that coordination is necessary.
(Tr. 215-16; Exh. I, at pp. 6-9). Here, there was
only one employer, Otis, allowed to perform servicing work on the elevator in question. (Tr.
106-07; Exh. K). The only employee who would ever be on the elevator car top, where the work
was performed, would be an Otis employee. No Boston Store employee could service the
elevator equipment in question. The store had no lockout or tagout procedure that applied to the
freight elevator or to work performed by Mr. Nauholz. No "authorized employee" existed at the
work site other than the Otis employee, Mr. Nauholz. No "affected employees" existed at The
Boston Store.
No non-Otis employee was exposed to an actual potential hazard, the chain and
sprocket on the elevator car top.
The only "zone of danger" was the area on the elevator car top which contained the chain and sprocket that caused Mr. Nauholz' injury. As the Commission has stated, "… the inquiry is not simply into whether exposure is theoretically possible. Rather the question is whether employee entry into the danger zone is reasonably predictable." Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997)(footnote and internal citations omitted). The evidence showed that the only "zone of danger" was on the elevator car top near the chain and sprocket on which Mr. Nauholz worked. There was insufficient evidence that another "zone of danger" was created by the gate. Within the "zone of danger" (the elevator car top) there was no possibility for employees of The Boston Store and Otis to "interact," or create "misunderstandings," so that "coordination" of energy control programs was necessary to protect employee safety. (Exh. G; see also Carpenter Contracting Corp., 11 BNA OSHC 2027, 2030-31 (No. 81-838, 1984) (failure to establish that employee activity would bring employee into "zone of danger" created by alleged violation with "reasonable predictability" justified vacation of citation.
Mr. Nauholz’ activities atop the elevator car were not covered by the scope and
application of the standard. Under these unique circumstances, the standard does not apply.
The foregoing is sufficient to dispose of the alleged violation in that the Secretary has
failed to meet one of the four essential elements of her prima facie case. See, e.g.,
Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996), citing to Waldon
Healthcare Center, 16 BNA OSHC 1052 (No. 89-2804, 1993).
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found and appear in the decision above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
Citation 1, Item 2, alleging a violation of 29 C.F.R. § 1910.147(f)(2)(i) is VACATED in its entirety.
___/s/_____________________________
HONORABLE DENNIS L. PHILLIPS
U.S. OSHRC Judge
Date: January 14, 2011
Washington, D.C.