Occupational Safety and Health Review Commission and Administrative Law Judge Decisions
1995 - 91-2973 - General Motors Corporation, Delco Chassis Division

• Docket Number: 91-2973
• Standard Number: 1910.147
• Case Citation: 17 BNA OSHC 1217
• Company: General Motors Corporation, Delco Chassis Division
• Information Date:1995

DECISION

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.

BY THE COMMISSION:

At issue is whether former Commission Judge Edwin G. Salyers erred in vacating citations that alleged failure by General Motors Corp., Delco Chassis Div. ("GM") to deenergize and lockout machines under the lockout/tagout standard, 29 C.F.R. 1910.147.(1) We find that, by its plain meaning, the standard applies only to those machines and pieces of equipment for which energization or start up would be unexpected by employees. The Secretary has argued for an interpretation that would have the Commission ignore this requirement. We agree with the judge, however, that the standard requires the Secretary to establish that a cited piece of equipment or machinery presents the hazard of unexpected energization, and that he failed to do so in each of the three cases here. We thus affirm the judge's decision.(2)

FOOTNOTE(1)  In each of these cases, GM was cited for failure to require its employees to lockout electrically-powered machines prior to servicing or maintenance. The machines were used to manufacture automotive parts at GM's plants at Vandalia and Dayton, Ohio.  In Docket No. 91-2973, the cited standard is section 1910.147(d)(4)(i).  That section provides:

(d) Application of control.  The established procedures for the application of energy control (the lockout or tagout procedures) shall the cover the following elements and actions and shall be done in the following sequence:
....

(4) Lockout or tagout device application.  (i) Lockout or tagout devices shall be affixed to each energy isolating device by authorized employees.

DISCUSSION

I. The application of the standard

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). The Secretary's case is premised upon his "official interpretation" of this sentence. Transposing the operative language, the Secretary frames the applicability inquiry as follows: "whether injury could occur in the event of an unintended energization, start up, or release of stored energy." Having thus interpreted the scope provision, the Secretary reasons that the lockout/tagout standard applies regardless of "how likely or remote the chances of" unexpected energization are and argues that any other conclusion "constitutes nothing less than a prohibited challenge to the wisdom of the standard."

Like all other Commission judges whose decisions have been cited to us,(3) Judge Salyers concluded that the language in question renders the standard inapplicable whenever employees are given sufficient notice of energization to allow them to vacate the zone of danger. In situations where the meaning of regulatory language is "not free from doubt," the Commission, like any reviewing court, must give effect to the Secretary's reasonable interpretations of his regulatory language. Cf., e.g., Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 150 (1991).

FOOTNOTE(3) Armco Steel Co., OSHRC Docket No. 93-641 (December 20, 1993) (ALJ Loye); Caterpillar, Inc., 92 OSAHRC 67/C8 (Docket No. 92-127, 1992) (ALJ Barkley). See also Metal Shredders, Inc. 92 OSAHRC 17/A2 (Docket No. 90-2273, 1992) (ALJ Burroughs) (work that was not performed under lockout in that case was not servicing or maintenance, and all affected employees expected equipment to start up).

In determining whether the language of a standard is ambiguous, we first look to its text and structure. When the statute speaks with clarity, in all but the most extraordinary circumstances, judicial inquiry is ended. E.g., Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992). Only if we can make no initial determination need we refer to contemporaneous legislative histories of the standard. If the question remains unsettled, we look to the reasonableness of the interpretation of the agency that administers the challenged standard. Kiewit Western Co., 16 BNA OSHC 1689, 1693, 1993 CCH OSHD paragraph 30,396, p. 41,940 (No. 91-2578, 1994) (citing Unarco Commercial Prods., 16 BNA OSHC 1499, 1502-03, 1993 CCH OSHD paragraph 30,294, p. 41,732 (No. 89-1555, 1993)).

Examining further the text of the standard, not only does the very first provision emphasize that its scope is limited to "unexpected" energization, startup, or release of stored energy, but the definition of covered maintenance and servicing contains the same limitation:

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.

Section 1910.147(b) (emphasis in original).(4) OSHA literally underscored the importance of the standard's limitation to "unexpected" energization, etc., by italicizing that word in those two provisions--a form of emphasis that OSHA rarely uses. The same limitation is restated in the general requirement for an energy program, section 1910.147(c)(1), which the Secretary describes as "[p]erhaps the clearest summary of the requirements of 1910.147."

FOOTNOTE(4)  GM has not conceded that its employees were engaged in "servicing and/or maintenance within the meaning 1910.147(b), because in its view that definition is limited to activities where inadvertent activation of the machine or equipment could occur and cause injury.

The employer shall establish a program consisting of energy control procedures, employee training and periodic inspections to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, start up or release of stored energy could occur and cause injury, the machine or equipment shall be isolated from the energy source, and rendered inoperative.

(Emphasis added.)(5)

FOOTNOTE(5)  Other provisions are to the same effect.  The stated purpose of the standard is as follows:

This section requires employers to establish a program and utilize procedures for affixing appropriate lockout devices or tagout devices to energy isolating devices, and to otherwise disable machines or equipment to prevent unexpected energization, start-up or release of stored energy in order to prevent injury to employees.

We find that the standard clearly and unambiguously applies only where the Secretary shows that unexpected energizing, start-up or release of stored energy could occur and cause injury. Under these circumstances, we find it unnecessary to look outside the standard itself for guidance as to its meaning. E.g., Brown v. Gardner, 115 S. Ct. 552, 556 (1994) (long-standing Veterans' Affairs Department interpretation of statute overruled--"the text [of the statute] and reasonable inferences from it give a clear answer against the Government, and that, as we have said, is `the end of the matter"') (quoting Good Samaritan Hosp. v. Shalala, 113 S.Ct. 2151, 2157 (1993)); Unarco, 16 BNA OSHC at 1503 & n.3, 1993 CCH OSHD at p. 41,732 & n.3. See generally 2A Singer, Sutherland Stat. Const. 46.01 (5th ed. 1992) (citing Caminetti v. United States, 242 U.S. 470 (1917) ("[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain [and if the statute is constitutional], the sole function of the courts is to enforce it according to its terms")).

However, even if we were to look beyond the standard's terms, we find any ambiguity is clarified in the legislative history and that the Secretary's interpretation is unreasonable. The preamble to the standard expressly limited its applicability to situations where "unexpected energization," etc.,(6) is a hazard. For example, the opening summary of the preamble states:

FOOTNOTE(6)  The term "energization, etc.," is our shorthand for the separate concepts of "energization, startup, or release of stored energy."

This standard addresses practices and procedures that are necessary to disable machinery or equipment and to prevent the release of potentially hazardous energy while maintenance and servicing activities are being performed.

Control of Hazardous Energy Sources (Lockout/Tagout): Final Rule, 54 Fed. Reg. 36,644 (1989), as corrected by 55 Fed. Reg. 38,677 (1990) (emphasis added). The preamble explains the standard's scope as follows:

The standard covers servicing and maintenance in general industry where the unexpected energization or start-up of machines or equipment or the release of stored energy could cause injury to employees.

54 Fed. Reg. at 36,659. There are many other statements to the same effect in the preamble. As we read it, the preamble can only support the plain language of the standard that limits its application to machines or equipment where an unexpected energization could cause injury to employees.

In addition to the preamble, other contemporaneous documents make clear that the standard is limited to risks of unexpected energization, etc. For example, OSHA Publication No. 3120, Control of Hazardous Energy (Lockout/Tagout) 2 (1991), states that if employees are performing servicing or maintenance tasks that do not expose them to the unexpected release of hazardous energy, the standard does not apply. The 1994 edition of that publication makes the same statement. OSHA's internal instructions for administering section 1910.147 use comparable language. OSHA Instruction STD 1-7.3, Control of Hazardous Energy Lockout-Tagout)--Inspection Procedures and Interpretive Guidance, I.1.b., d., e. (September 11, 1990). Thus, the Secretary's contemporaneous publications and the statements therein consistently reaffirm that the Secretary meant what he said in the standard--it applies only where unexpected energization, etc., could occur and cause injury to employees.

The plain and unambiguous terms of the standard, and the support of the legislative history, is so overwhelming that the Commission need not even consider the Secretary's current interpretation. We note, however, that the Secretary's interpretation is inconsistent with the standard's terms. He interprets it to apply to every piece of machinery and equipment regardless of whether it could start up unexpectedly. The Secretary would require lockout/tagout even if the record shows there is no possibility of "unexpected" energization, etc. As GM states, the Secretary would "inquire only into whether an employee could be injured if unexpected energization [etc.] were to occur (even if, in fact, it could not)."

This interpretation fails to give effect to the entire clause that defines the standard's application. We cannot ignore the term "unexpected" as a limitation on the application of the standard. Regulations are to be read so as to give effect to all their terms, if possible. E.g., United States v. Menasche, 348 U.S. 528, 538-39 (1955). See Brown v. Gardner, 115 S. Ct. at 556 (maxim of statutory interpretation held relevant to whether agency had properly interpreted its governing statute) (citing Russello v. United States, 464 U.S. 16, 23 (1983)). Again, the Secretary not only emphasized that limitation, but wrote it in repeatedly and purposely.

The Secretary may change his standard, but his interpretation of his current standard could only be "reasonable" if it "sensibly conforms to the purpose and wording of the regulations." CF & I, 499 U.S. at 151 (citing Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U.S. 12, 15 (1975)); Martin v. American Cyanamid Co., 5 F.3d 140, 144 (6th Cir. 1993). Here, the Secretary's interpretation is plainly inconsistent with the wording of the regulations. His reading would essentially remove all limits to the standard's applicability.

The Secretary's interpretation in this case also contrasts sharply with portions of his supplemental statement of reasons supporting the standard. In that document, which the D.C. Circuit required during the pre-enforcement challenge to the standard, see supra note 2, the Secretary sought to reassure the court that he interpreted the standard to contain a common-sense limit to situations where unexpected energization, etc., could cause injury to employees.

The standard [does not apply] to servicing and maintenance that present minimal and readily controlled risk .... [E]ach covered employer's burden is determined by the frequency and complexity of servicing actually undertaken.... Machines and equipment that present no hazard are excluded from coverage.

Final rule: supplemental statement of reasons, 58 Fed. Reg. 16,612, 16,621 (1993) (emphasis added). The Secretary further emphasized before the D. C. Circuit that the standard applies only to machines and equipment that pose a significant risk of harm and to employees exposed to that risk. See UAW v. OSHA II, supra note 2, 37 F.3d at 670 ("[i]f, as OSHA asserts and NAM [the National Association of Manufacturers] appears not to dispute, the regulation applies simply to machines that pose a significant risk and to workers subjected to that risk, we see no reason why OSHA should be concerned with industry classifications that appear essentially irrelevant to its task") (emphasis in original).

Yet, in this enforcement action the Secretary contends that GM should not be allowed to prove that its machines and equipment present no hazard or no significant risk of harm. The Secretary essentially argues that he alone may decide whether such machines and equipment present a hazard of unexpected energization, etc., or a significant risk of harm, and that employers and the Commission may not question that determination. We again do not believe that the standard can be reasonably read to require the result the Secretary seeks.

Finally, we find no merit in the Secretary's claim that Judge Salyers's reading of the standard: (1) violates the requirement that the authorized employee have exclusive control over his/her safety, and (2) rewrites the definition of "energy isolating device." That claim presumes that there always is a hazard of unexpected energization, etc., on every industrial machine and piece of equipment during servicing and maintenance. The terms of the standard clearly place the burden on the Secretary to show that there is such a hazard as to the cited machines and equipment. The Secretary must show that there is some way in which the particular machine could energize, start up, or release stored energy without sufficient advance warning to the employee. However, the Secretary seeks to disallow reliance on even the most failsafe control circuit devices--even where the employees as well as employers favor them. We find that this unreasonable approach is flatly inconsistent with the unambiguous terms of the standard, as well as the preamble and the Secretary's other contemporaneous explanations of the standard.(7)

FOOTNOTE(7)  The standard contains certain specific exceptions to lockout/tagout requirements, as the dissent notes.  However, the Secretary must show that the standard applies before the exceptions become relevant. Because the Secretary failed to show that unexpected energization, etc., could occur on the cited machines, he has not shown that the standard applies, and thus we need not consider the exceptions.

II. Whether the Secretary proved that unexpected activation could occur and cause injury

It is undisputed that the machines had extensive precautions to protect servicing and maintenance employees. An electronically interlocked gate surrounded the machine area in each case. Once an employee opened that gate or pushed an emergency stop button, a time-consuming series of eight to twelve steps were required before any hazardous movement of the machine could occur. The evidence indicated that the restart procedures would provide plenty of warning to the employees, in the form of alarms and visible motions, so that they could avoid any hazardous movement of the machinery.

The Secretary presented testimony at the hearing, however, that unexpected activation (startup or release of stored energy) actually could occur on GM's machines because they were not routinely deenergized or locked out. The judge found the Secretary's evidence insufficient. On review, the Secretary does not specifically contest the judge's factual findings or present an argument for finding unexpected activation on the particular facts of these cases. In fact, the Secretary does not dispute GM's assertion that he has abandoned any objections to the judge's factual findings. On the other hand, the Secretary summarizes the facts and relies on the injury described in Docket No. 91-3116 as evidence of the general risk of injury from failure to lockout.

We affirm the judge's factual findings and his conclusions. GM's expert witness, engineer Richard Parry, testified convincingly that unexpected activation could not occur on any of the machines under GM's procedures. The judge properly relied on Parry's testimony. He did not discredit the contrary testimony of OSHA's compliance officers ("CO's"), but found that Parry had "superior knowledge and experience" regarding the machines at issue. Thus, he concluded that in each case, "Parry's testimony is entitled to greater weight."

Parry testified that the machine involved in each case would shut down immediately if the employee first: (1) opened the interlocked barrier gate around it, as the employees were trained to do, or (2) pushed an emergency stop button. In either event, there could be no unexpected activation. The basic reason is that a time-consuming startup procedure of at least eight steps, most of them obvious to the servicing or maintenance employee, would be required before any hazardous activation of the equipment could occur.

The restart procedures could be performed by an employee other than the one performing servicing or maintenance, but the latter could not help being aware that they were taking place. In Docket No. 91-2973, eight to eleven startup steps were required, and numerous warning bells would sound during the process. In Docket No. 91-3116, twelve startup steps were required and were all performed within 4 feet of the servicing or maintenance employee. In Docket No. 91-3117, eight startup steps, including many movements by the robot arm that would be obvious to the servicing or maintenance employee, would be required before any hazardous movement could occur.(8) As a result, the servicing or maintenance employee would know of, and have plenty of time to avoid, the hazards. Parry's testimony about the multi-step startup procedure completely disposes of the alleged hazards in Docket No. 91-2973. We vacate the citation in that case accordingly.

FOOTNOTE(8)  The startup process in Docket No. 91-3117 was typical of the others. The judge summarized it as follows:

(1) All interlock gates would have to be closed;
(2) The start button on the control console would have to be pushed, which activates the robot system and instructs it to orient itself as to location. This takes some time and, if not in the home position, the robot returns to the home position;
(3) The robot then proceeds to the conveyor area where the bushings are located and picks one up;
(4) The robot then rotates to the press area;
(5) The robot places a bushing into a funnel;
(6) The robot next picks up a dog bone [metal piece into which bushings are inserted] and the other bushing;
(7) The robot returns to the funnel, drops a bushing, and places the dog bone into a fixture; and
(8) Only after the above sequence of tasks is completed will the solenoid valve be signaled to activate the compressed air power to initiate movement of the press.

The CO's testified in Docket Nos. 91-3116 & 91-3117 that one of the hazards was inadvertent activation of the equipment in the event of a short circuit or ground. However, Parry contradicted that testimony. He testified that the electrical model on which the CO's relied, a 2-wire, 110-volt system, was not used by GM. He further testified that a short circuit or ground in GM's system (using 3-wire, 220-volt connections) would result in shutting the machinery down, not starting it up. Parry's testimony establishes that no hazard existed in either case due to possible electrical failure. We vacate the citation in Docket No. 91-3117 based on Parry's testimony regarding that issue and regarding the multi-step startup procedure in that case.

Finally, in Docket No. 91-3116, the Secretary relies on the fact that an employee actually was injured while servicing the machine.(9) The union safety and health representative at the plant, Thomas Ashburn, testified that based on his investigation of the incident, the employee had followed proper procedures. However, Parry testified that the employee could not have followed proper procedures and must have entered the machine area without using the interlocked barrier gate as required. He testified that GM thoroughly investigated and that its engineers could not cause any movement of the machinery to occur once the barrier gate was opened. Parry testified that once that gate was opened or an emergency stop button was hit, there could be no startup of any equipment until another time-consuming, multi-step startup procedure was completed, which inevitably would alert the servicing or maintenance employee.

FOOTNOTE(9)  GM employee Kaye Lowe was injured by a robot while servicing the A-7 module.  It is undisputed that Lowe's injury happened when she was at the dial table servicing the machinery.  She was attempting to release a ball joint that had become jammed at the point where they are greased. Apparently her movement triggered the grease unit on the dial table and it cycled.  Lowe was struck on the back of her forearm with grease and had to be taken to the hospital to have it all removed.

Again, the judge credited Parry's expert testimony about the machine. The judge found that a preponderance of the evidence failed to show that there was a hazard of unexpected energization, etc., in Docket No. 91-3116 because: (1) if the employee had used the barrier gate as required, the 12-step restart procedure would be necessary and would alert the employee in time to avoid any activation of machinery, and (2) if the employee did not use the barrier gate as required, he or she would know that activation could occur at any time--hence, it could not be unexpected. We find that the evidence supports the judge's finding and thus we vacate the citation in Docket No. 91-3116.

Accordingly, we vacate the citations to GM in each of these cases.

Dated: April 26, 1995

Weisberg, Chairman, dissenting:

My quarrel with my colleagues in this case is fundamental. After extensive research, review and comment, OSHA promulgated a standard reflecting its finding that, with certain enumerated exceptions, it is necessary to deenergize machinery and equipment, and to lock or tag it out, prior to servicing or maintenance to effectively protect employees from the hazards of the unexpected energization, startup, or release of stored energy. Locking or tagging out the machinery or equipment is mandatory under the standard if the energy involved is strong enough to result in injury if released unexpectedly. It is undisputed that the energy involved here was sufficient to be considered hazardous if released. Further, GM acknowledges that in the cited instances it has not adhered to the lockout or tagout procedures required under the standard but claims such devices are unnecessary because it has devised a better way of protecting employees. GM does not claim that compliance with the standard would have been infeasible. Nor does GM claim that it lacked fair notice of the Secretary's interpretation of the standard.

In vacating the instant citations my colleagues, through myopic reliance on the so-called "plain meaning" of the term "unexpected" energization, reject the Secretary's interpretation of his own standard in favor of their own interpretation, one that negates the required use of lockout/tagout procedures where the employer has devised an alternative means of protection.(1) Additionally, my colleagues would require that the Secretary prove a negative in every case for each cited machine or equipment, i.e., that in myriad circumstances alternative measures fashioned by the employer would not be completely effective in preventing unexpected energization. The majority's action will encourage a lack of conformity with this important standard, which Elizabeth Dole, President Bush's Secretary of Labor, considered "one of my top safety and health priorities."(2) This will place more workers in danger for, as my colleagues well know, OSHA lacks the resources to inspect even a respectable fraction of the workplaces subject to this standard much less to evaluate all of the alternative measures employers may devise under the exception to the standard the majority creates today. Accordingly, I must dissent.

FOOTNOTE(1)  Nothing in the standard, however, prevents an employer from adding whatever warning mechanisms it feels will further protect employees.  Nor does the standard discourage employers from doing so.

FOOTNOTE(2)  BNA Occupational Safety and Health Reporter, Sept. 6, 1989, at 620.