At the time of the fatal incident, Henry Hernandez was the Rolling Mill’s Shift Supervisor and had worked for CMC for 10 years and had just been promoted to the Shift Supervisor position in the previous month. Mr. Hernandez was responsible for the safety of his crew, known as the C-crew. The C-crew was responsible for the Rolling Mill’s production operation and typically consisted of 14 employees. Mr. Hernandez supervised his crew and had authority to discipline employees.

At the time of the subject incident, Mr. Hernandez was working with three other employees, AC (the decedent), CC, and PH at Mill Stand # 7. AR held the Assistant Roller position and had worked for CMC for about 27 years. The Assistant Roller is responsible for ensuring the integrity of the rebar going through the factory’s 14 mill stands and that the finished product is free from defects.

AR had, in fact, trained Mr. Hernandez when he began working for CMC and they had worked together for at least seven years. CC and PH were Mill technicians who were directed by the Assistant Roller, but both the Assistant Roller and Mill Technicians reported to the Supervisor Hernandez. CMC’s LOTO policy included three different written policies: Lockout/Tagout—Energy Control Program (the “LOTO Program”); Lock Out of Mill Stands for Operating Personnel (the “Mill Stand Lock Out Procedure”); and Tightening Stand Jacks After Pass Changes (“Tightening Stand Jacks Procedure”).

CMC’s LOTO Program included definitions (such as “authorized” and “affected employees”) as well as training and requirements that paralleled OSHA’s own LOTO standards. For example, CMC’s LOTO’s Program required that “authorized employees who locked out the equipment were responsible for notifying all of the ‘affected employees’ when their machine is locked out.”

Prior to starting work on equipment or machinery, to “‘start’ or ‘run’ or other operating control, be sure that all energy has been isolated form the machine…that it will not operate.” Training and periodic reviews were conducted to ensure that the LOTO Program was followed. The Mill Stand Lock Out Procedure provided instructions for necessary tools and safety equipment, warnings and steps for the lockout of a mill stand with photographs depicting the location of the lockout switches and examples when the switch was locked out. The processes and steps were discussed in detail regarding the lock-out of the mill stand, which included the notification of relevant employees as well as the turning off and locking out of a specific mill stand’s switch, a butterfly switch, and the placement of a blue equipment key lock on it. The switch must be turned to the “off” position before placing the blue lock.

Each authorized employee also carries a red personal key lock and that employee then places the blue equipment lock in a lock box which is locked with that red key lock. The authorized employee keeps the red personal key lock on his person to prevent anyone from opening the lockbox to obtain the blue equipment key to unlock and re-energize the mill stand. The next steps involve notifying the pulpit operator (who sits in a room about 15 feet from the mill floor and controls the speeds of the mill stand’s spindles) to start up the mill stand so as to ensure it will not start. The Rolling Mill also had Stand Lights, a series of lights behind the mill stand to indicate whether it was locked out but Mr. Hernandez admitted he did not know which color indicated that the machine was locked out and that he did not look at the Stand Light’s colors often.

On May 30, 2022, AR moved to the back of Mill Stand # 7, to adjust the mill stand jacks given that it had been observed that a bit (a smaller piece of steel bar) was not properly sized as it was run through the mill stand about two- or three-minutes prior. Mr. Hernandez spoke to AR as he moved to the back of the mill stand. Mr. Hernandez did not see AR follow CMC’s lockout procedures nor did not hear AR notify anyone he was going to lockout the mill stand or ask the pulpit operator to “try-out” or start the machine to see if it was safe to proceed. AR did not follow CMC’s LOTO procedures in plain view of the Supervisor Hernandez. As AR was adjusting the stand jacks, the pulpit operator turned the Mill Stand # 7 back on, which caused AR to be pulled in between the spindles of the machine.

OSHA investigated and issued multiple citations to CMC which included that CMC’s procedures were not utilized and followed in making adjustments to the jack of Stand # 7. Here, four employees, Supervisor Hernandez, AR, and Mill Technicians, CC and PH were working in the zone of danger, the back of the mill stand, and were at risk of exposure of unexpected energization, which is what happened here. CMC’s detailed policies were not followed by AR and these violations were in plain view of Supervisor Hernandez whose failure to take action and verify that CMC’s LOTO policies were followed disclosed “negligent, inadequate supervision and a lack of reasonable diligence” and the Citations were upheld against CMC.

About the author: Costas Cyprus is an 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.