Issue link: http://palletcentral.uberflip.com/i/1311385
PalletCentral • November-December 2020 35 The most-commonly cited standards for the wood container and pallet manufacturing sector were: machine guarding (1910.212), lockout-tagout (1910.147), powered industrial trucks (1910.178), electrical safety (1910.303 and 1910.305), noise (1910.95) and hazard communication (1910.1200). OSHA can also issue citations under its General Duty Clause (the "gap filler") to address additional conditions such as combustible dust hazards and ergonomic issues. In addition, OSHA's REP points to language barriers with workers whose primary language is not English, and the use of temporary workers as contributory factors to the high incidence rate. The new decisions will help pallet sector employers defend against unwarranted OSHA citations, but it is not a slam-dunk defense: effective worker training will be required (in a language and vocabulary that workers understand) and work rules must be adopted and enforced against unsafe acts, such as working on equipment before it is locked and tagged out, or removal of, or circumventing, installed guards. In some cases, equipment used in the pallet industry, such as band saws and dismantling machinery, cannot be effectively guarded at the point of operation, and so safe work practices must be established as well as backup with instructional decals and warning lines to keep body parts at least 12 inches away from the cutting edges. In its new decisions, OSHRC describes the guarding rule 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 Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and also provides safety training and consultation. The Law Office of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV. She may be reached at www.safety-law.com or phone: 301-595-3520.