Adequate Lock-Out/Tag-Out Systems Must Be In Place to Prevent Employee Injuries: OSHA
By COSTAS CYPRUS, ESQ.
The decision in Secretary of Labor v. Ward Vessel & Exchange Corporation reminds us that construction companies must have adequate lock-out/ tag-out systems in place to prevent injuries to their employees, including during the servicing of such equipment. The decision arose from a Jan. 23, 2021 incident in which Ward Vessel & Exchanger Corporation’s employee had the tips of his fingers pinched in a plate rolling machine as his supervisor, who was troubleshooting a power problem, activated the equipment. Following the reporting of the accident, OSHA’s Compliance Safety and Health Officer Javier Fernandez appeared and conducted an investigation. He inspected the equipment (a Roundo plate rolling machine) and conducted interviews of Ward’s employees.
Following its investigation, OSHA issued multiple citations against Ward. OSHA alleged that Ward failed to implement adequate lock-out/tag-out (LOTO) procedures. Ward replied that the LOTO safety standard for which they were cited did not apply in this instance. Furthermore, the LOTO requirements did not apply to troubleshooting, Ward argued, because the work process either required an energization of the Roundo or that the proper implementation of the work processes removed the subject hazard.
The Roundo consists of a series of rollers that turn large metal plates into cylinders. The equipment is powered by a hydraulic motor that is energized by a one cord and plug. The cord is then plugged into a 480-volt breaker on the adjacent wall. Ward’s Vice President of Production Bob Besh testified at trial that the roller is a single-plug, single energy source machine, which can be de-energized by simply unplugging it. Ward’s employees can either lock-out the breaker on the wall or place the plug in a lockable container. The latter method was preferred since one could run an extension cord to plug the machine into a different outlet. The roller was energized in the same manner as about 30 to 40 other welding machines at their work-shop, which all used a single 480-volt break and single cord and plug. Ward used the same general procedure for LOTO on all 480-volt, cord and plug machines.
During his inspection and investigation, CSHO Fernandez learned that the Roundo had hydraulics in addition to the electric power and deemed that the single, general procedure for LOTO was insufficient. However, during his testimony, CSHO Fernandez was unable to describe how the hydraulics worked nor how the hydraulic energy should be controlled to prevent unexpected energization. Mr. Besh testified that the hydraulics were used to raise the bottom rolls to impact the metal but that there was no stored potential energy to create a pinch point when the equipment was not in use because there was no pressure on the hydraulics.
Ward’s Night Supervisor Frank Hernandez further testified as to the process for making steel cylinders and using the Roundo, which requires a twoperson team process to clean and prepare the equipment. The process involves creating space between the three rollers to wipe down and clean the rollers and then wrap each one in plastic. Ward does not require its employees to de-energize the Roundo when preparing it for stainless steel applications, but rather requires a series of steps to remove any pinch-point hazards or the release of hazardous energy.
On the night of the incident, Mr. Hernandez directed two employees to prepare the Roundo for stainless steel cylinders. However, when they tried to lower the bottom rollers to begin the cleaning process the rollers failed to move. Mr. Hernandez was called over and two of them began to troubleshoot while Mr. Hernandez directed the third employee (the injured employee referred to as “IE”) to gather additional cleaning solution. Mr. Hernandez discovered that a superfluous extension cord had been connected from the Roundo to the breaker. In light of the voltage at issue, the employee turned off the breaker, removed the extension cord, reconnected the Roundo’s cord and then re-energized the breaker. At that point, Mr. Hernandez activated the rollers when he heard the IE begin to scream. Apparently, and unbeknownst to either Mr. Hernandez or the other troubleshooting employee, the IE had not only collected the cleaning solution, but he had begun wiping down the rollers so that once the Roundo was activated, the IE’s fingers were briefly pinched between two rollers before he pulled them out. He was taken to the hospital and received treatment. Following the accident, Ward conducted its own internal investigation and determined that the injured employee had violated the company rules by attempting to clean before all necessary steps had been taken. Specifically, the two employees knew that they were not supposed to proceed with cleaning when the rollers had not been lowered and they had in fact contacted their supervisor Mr. Hernandez regarding the problem. As the rollers were in the “up” position IE attempted to clean, which constituted a violation of company policy. More importantly, Ward determined that Mr. Hernandez failed to ensure the area surrounding the Roundo was clear prior to troubleshooting the machine and he was subsequently disciplined.
The LOTO standard covers the servicing and maintenance of machines in which the “unexpected energization or start up… or release of stored energy could cause injuries to employees.” Ward claimed two exceptions to the standard: The first was for cord-and-plug machines, the second from the machine-specific procedure requirements; and the Administrative Law Judge (the “ALJ”) agreed. The ALJ found that the “hazards of the unexpected energization…are controlled by the unplugging of the equipment from the energy source and by the plug being under the exclusive control of the employee performing the servicing…” Here, disconnecting the Roundo from its power source removed the hazard of stored energy potential energy as there was no stored pressure in the hydraulics. The lock-out condition was accomplished by placing the plug of the machine in a lockable container. Mr. Hernandez had been performing energized troubleshooting at the time of the incident, which was governed by a different safety standard and was accounted for in Ward’s LOTO policy. Employees would have to adjust the roller heights to eliminate the pinch points as well as speed down the velocity of the rollers to a “snail’s pace” to wrap them in plastic.
Ward’s policy requiring Mr. Hernandez to clear the surrounding area from the equipment while troubleshooting was compliant with the LOTO standard, which required it as a condition of performing “operational testing.” Basically, Ward is permitted to conduct energized operational testing of equipment as long as it takes proper precautions to avoid injury. Here, Mr. Hernandez violated Ward’s policy, which caused this accident and the ALJ agreed.
Decision – Given that Ward had been cited under certain LOTO standards for which it was determined it was exempt, the Citations items were vacated. The Secretary had the burden to match the safety standard with the condition allegedly violated, and here it had failed to meet its burden.
About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.