Lockout/Tagout Standard: Secretary of Labor vs. Caterpillar Inc., Occupational Safety and Health Review Commission, March 21, 1996

Date: Jun 01, 1996

The lockout/tagout (LOTO) standard, 29 C.F.R.' 1910.147, continues to generate litigation over its various provisions.  In the latest installment, Caterpillar Inc. was cited for failing to train employees in new procedures when it consolidated several job classifications in its York, Pennsylvania, plant.  The Administrative Law Judge (ALJ) vacated the citation, but the Occupational Safety and Health Review Commission (OSHRC) reversed and reinstated the citation and proposed $1125 penalty.  The case illustrates that employers must be vigilant about retraining when job changes and consolidation require employees to do tasks that are unfamiliar. 

Two employees were involved in accidents resulting from the unexpected release of stored energy while performing maintenance  tasks after a plant reorganization in January, 1993.  One was a pipefitter working on a broken cable on a sliding door on a computer-operated metal finishing machine.  He was attempting to open a pneumatically operated outer door when it suddenly moved.  The operator testified that he was unaware of the stored air pressure in the door mechanism, and that he had not been trained in the LOTO hazards associated with the machine in question. 

The second employee, an automotive equipment repairman, was assigned to unclog a jam on a conveyor system.  As is common on large conveyor systems, directional changes for parcels were achieved by "air actuators" or "pushers."  In this instance, the pushers were four-inch air cylinders that pushed horizontally through an 18-inch stroke to move a package from one belt to the next, similar to a pin-sweeper in a bowling alley.  The pushers exerted approximately 20 pounds per square inch of force. 

After removing the jammed parcels, the employee attempted to return the pusher to its resting position from mid-stroke using his foot.  Although he believed the pusher was in neutral because it did not move after the packages had been removed, it unexpectedly cycled when he pushed on it and, it pushed him backward, causing him to fall.  He was not injured.  The employee testified that he had repaired conveyors before and had seen the pushers operating, but had not been trained about how they operate or on how to deenergize them.   

The OSHRC concluded that the evidence established the violation.  Caterpillar, it said, did not comply with Section 1910.147(c)(7)(iii)(A) because two employees were required to perform new jobs that exposed them to possible LOTO hazards about which they had not been trained.  The judge had based his decision to vacate the citation on the assumption that OSHA had to prove a failure to train all affected employees.  The Review Commission, however, found that the two instances of noncompliance with the training provisions of the standard were sufficient to support OSHA's allegation of a violation.   

The case did not resolve the question of when the training must be provided.  OSHA did not state a position on whether the retraining requirement under the standard is triggered by (1) giving employees a new job title or (2) actually assigning an employee to work on an unfamiliar piece of equipment.  The fact that the Secretary established that Caterpillar was in violation of the standard as to these two employees under either interpretation of the standard was sufficient to support the violation alleged.  But, according to a footnote in the decision, it leaves open whether employers must train employees when they are assigned to a group and may be required to work on a particular piece of equipment, or if the training simply must be completed prior to doing the actual work. 

The case also points out another aspect of the LOTO standard, one which is important to many employers.  In the second instance, the employee was performing what might be considered a "minor servicing activit[y]."  The standard contains a note that "[m]inor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection . . . [emphasis added]."  Unjamming conveyors is precisely the kind of activity for which the provision was intended.  For example, in a letter to the Printing Industries of America, OSHA stated: 

In the printing industry, we understand that the term "minor servicing" includes, among others, tasks such as clearing of certain types of paper jams; minor cleaning, lubricating and adjusting operations; certain plate and blanket changing tasks and, in some cases, paper webbing and paper roll changing.  Generally speaking, "minor servicing" is considered to include those tasks involving operations which can be safely accomplished by employees and where extensive disassembly of equipment is not required.  Such tasks will be identified through the hazard analysis required by the lockout/tagout standard. 

In order to perform maintenance or servicing, in which an employee bypasses guards which are required by either 1910.212 or 1910.219, or otherwise becomes exposed to the hazards of machine start-up or to the unexpected release of hazardous energy, the OSHA lockout/tagout standards apply.  If no such exposure occurs (either because of the methods in which the minor servicing is performed or because special tools, techniques or other protection is used), lockout/tagout is not required provided the employer uses alternative measures which enable an employee to perform minor servicing without being exposed to a hazard.  Under no circumstances is an employee ever permitted to place any part of his or her body within a hazardous area, such as the point of operation, while the equipment is running or energized (and alternative measures have not been taken), or around power transmission apparatus. 

This position is articulated in its OSHA Instruction STD 1-7.3, 29 CFR 1910.147, the Control of Hazardous Energy (Lockout/Tagout) -- Inspection Procedures and Interpretive Guidance.  Paragraph I.1.e. states that the unjamming of equipment is covered by the standard if employees are exposed to unexpected energization.  But coverage occurs only when employees are exposed to the hazard of uncontrolled release of energy.  Such activity -- unjamming or minor adjustments -- is not covered if: 

. . . [A]lternative protective measures enable the servicing employee to clean or unjam, or otherwise service the machine without being exposed to unexpected energization or activation of the equipment, or the release of stored energy. 

In Appendix C, OSHA gave its inspectors guidance on what are acceptable means of alternate protection: 

Although that standard is not all inclusive, it describes effective safeguarding alternatives for the protection of employees.  The safeguards described include:  interlocked barrier guards, presence sensing devices and various devices under the exclusive control of the employee.  Such devices or guards, properly applied, may be used in clearing minor jams and performing other minor servicing functions which occur during normal production operations and which meet the criteria described in paragraph A.2. of this appendix. 

Clearing jams on conveyor lines is clearly within the definition of "minor servicing activities."  The standard does not require LOTO in those situations, provided alternate methods of protection are used.  What the employee was doing would not have been covered by the standard if the employer had used acceptable alternatives as described in the compliance instruction.    

The following article appeared in Compliance Magazine(June 1996) and it is reprinted with permission of ComplianceMagazine. Copyright © 1996 by IHS Publishing Group. Allrights reserved.

For further information about this article, please contactDavid G. Sarvadi at 202-434-4249or by e-mail at sarvadi@khlaw.com.