Secretary of Labor V. General Motors Corp., CPCG Oklahoma City Plant

United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457 : SECRETARY OF LABOR, : Complainant, : : OSHRC Docket Nos. v. : 91-2834E & 91-2950 : GENERAL MOTORS CORP., : CPCG OKLAHOMA CITY PLANT, : Respondent. : : : INTERNATIONAL UNION, UNITED AUTOMOBILE, : AEROSPACE & AGRICULTURAL IMPLEMENT : WORKERS OF AMERICA – UAW and LOCAL 1999, : Authorized Employee Representative : : APPEARANCES: Kenneth A. Hellman and Nicholas J. Levintow, Senior Trial Attorneys; Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health; Thomas S. Williamson, Jr., Solicitor of Labor, U.S. Department of Labor, Washington, DC For the Complainant Arthur G. Sapper, Esq., McDermott, Will & Emery, Washington, DC For the Respondent Ralph O. Jones, Esq., Associate General Counsel, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Detroit, MI; Randy S. Rabinowitz, Esq., Washington, DC For the Authorized Employee Representative DECISION Before: THOMPSON, Chairman; ROGERS, Commissioner. BY THE COMMISSION: I. STATEMENT OF THE CASE Early on the morning of April 4, 1991, at a General Motors Corporation (“GM”) automobile manufacturing plant in Oklahoma City, Oklahoma, a motor rail conveyor lift table activated, catching the head of millwright Donald Smith, and killing him instantaneously. As a result of this fatality, the Occupational Safety and Health Administration (“OSHA”) conducted an inspection of the GM plant. On September 26, 1991, nearly six months after the accident, OSHA issued to GM a single willful citation, under the Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. §§ 651-678, alleging fifty-seven violations of the general industry lockout/tagout (“LOTO”) standard, 29 C.F.R. § 1910.147.1 The LOTO standard, which became effective January 2, 1990, was promulgated to prevent industrial accidents during servicing of machines that remain in an operational mode, are turned off but connected to a power source, retain stored energy, or are reactivated by another worker unaware that servicing is in progress. Control of Hazardous Energy Sources (Lockout/Tagout): Final Rule (“Lockout/Tagout I”), 54 Fed. Reg. 36,644 (Sept. 1, 1989); Control of Hazardous Energy (Lockout/Tagout): Final Rule; Suspension of Effective Date (“Lockout/Tagout II”), 54 Fed. Reg. 46,610, (Nov. 6, 1989). In general, the LOTO standard requires an employer to establish a program that includes employee training, use of energy control procedures, and periodic inspections designed to prevent employee exposure to the unexpected energization of equipment during servicing and maintenance operations, and dovetails with the requirements for the safe operation of machines during production, as prescribed by 29 C.F.R. Part 1910, subpart O. The violations alleged here encompass GM’s failure to apply LOTO during the events leading up to the accident, as well as GM’s failure to establish an energy control program, utilize and adequately describe its energy control procedure, conduct a periodic inspection of that procedure, and train and retrain employees covered by the standard. The Secretary cited the training and retraining items on a per-employee basis and proposed penalties for all citation 1 Under Section 9(c) of the Act, the citation here covered a six-month period (“limitations period”) that began shortly before the accident. 29 U.S.C. § 658(c) (“[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation”). 2 items totaling $2.78 million. Both GM and the authorized employee representative, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”), contested the citation.2 After a two-week hearing, Administrative Law Judge Stanley M. Schwartz3 affirmed all violations before him, except for one retraining item and the five items related to the fatal accident.4 He assessed a total penalty of $1.945 million. Both the Secretary and GM sought review of the judge’s decision before the Commission. For the reasons that follow, we affirm the judge’s decision in part, and reverse in part. II. ISSUES Under the citation items at issue on review, the Secretary alleges that GM willfully violated multiple provisions of the LOTO standard. The judge affirmed all but six of these items, as alleged, based on his conclusion that the plant’s energy control procedure was deficient, training was inadequate, and lockout was “unenforced and seldom used before the accident.” In vacating the alleged violations under 29 C.F.R. § 1910.147(d)(2), (d)(3), (d)(4)(i), (d)(5)(i), and (d)(6), the five citation items related to the accident, the judge determined that the Secretary failed to satisfy her burden to show the applicability of the cited standards to the circumstances of the accident. The issues on review are as follows: (1) whether GM’s energy control program and procedure complied with the LOTO standard; (2) whether GM failed to perform a periodic inspection; (3) whether GM failed to train or retrain, as cited, its servicing and maintenance employees; (4) whether the LOTO training and retraining provisions are susceptible to per- employee citation; (5) whether the LOTO standard applied to the motor rail conveyor work; (6) whether the affirmed citation items were properly characterized as willful; and (7) what penalty amounts are appropriate to assess for the affirmed items. 2 In Docket 91-2950, GM contested all the citation items, the proposed penalties, and the abatement dates. In Docket 91-2834E, the UAW elected party status and initially protested the abatement dates. 3 The late Administrative Law Judge E. Carter Botkin presided over the hearing, but upon his death the case was reassigned to Judge Schwartz. 4 The Secretary withdrew eight citation items by the time the judge issued his decision. The vacated retraining item is not at issue on review. 3 For the following reasons, we affirm the program and inspection items; affirm or vacate specific training and retraining items based on the evidentiary and legal bases discussed below; affirm the items related to the accident; recharacterize as serious the initial training violations and one sub-item relating to the energy control procedure; affirm all other violations as willful; and determine that both the initial training violations cited under 29 C.F.R. § 1910.147(c)(7)(i) and the retraining violations cited under 29 C.F.R. § 1910.147(c)(7)(iii)(B) are susceptible to citation on a per-employee basis. For the twenty-six affirmed citation items, we assess a total penalty of $692,000. III. FINDINGS OF FACT GM’s Oklahoma City plant, which opened in 1979, employed about 5,000 workers at the time of the OSHA inspection. The plant contains hundreds of machines, many powered by multiple energy sources. “Skilled trades” employees—including millwrights, electricians, pipefitters, and toolmakers—routinely perform servicing and maintenance on these machines. In 1985, well before the cited standard was promulgated, GM laudably established as part of its joint partnership with the UAW a lockout/tagout training program superseding previous lockout training programs at the plant. GM conducted this joint training in the mid-1980s. However, before the 1991 accident, GM management at the Oklahoma City plant did not enforce the use of lockout procedures, permitting and even encouraging employees to service machines without locking out. Supervisors observed employees servicing without locking out and took no action, neither stopping the servicing work nor retraining the employees in proper lockout procedures. GM also failed to adequately supply servicing and maintenance employees with necessary safety locks. IV. GENERAL PRINCIPLES OF LAW The general industry LOTO standard, effective January 2, 1990, “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). The LOTO standard defines servicing and/or maintenance as “workplace activities” exposing an employee to the possibility of unexpected energization such as “constructing, installing, setting up, adjusting, inspecting” as well as “cleaning or unjamming” machines or equipment. 29 C.F.R. § 1910.147(b). Energization is “unexpected” in the absence of some mechanism to provide adequate advance notice of machine activation. Burkes Mech. 4 Inc., 21 BNA OSHC 2136, 2139 n.4 (No. 04-1475, 2007) (distinguishing Gen. Motors Corp., Delco Chassis Div., 89 F.3d 313 (6th Cir. 1996)). Under the standard, an employer is required to establish an energy control program “consisting of energy control procedures, employee training and periodic inspections to ensure” machines are securely isolated from any and all energy sources before the commencement of service and/or maintenance activities. 29 C.F.R. § 1910.147(c)(1). The energy control procedure must be “developed, documented and utilized” and must “clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy, and the means to enforce compliance.” 29 C.F.R. § 1910.147(c)(4)(i), (c)(4)(ii). Additionally, the LOTO standard prescribes a specific sequence for the application of energy controls to incorporate into each procedure. 29 C.F.R. § 1910.147(d). The standard further requires employers

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