ThyssenKrupp Elevator v. Occupational Safety and Health Appeals Bd. CA3 ( 2016 )

Filed 9/30/16 ThyssenKrupp Elevator v. Occupational Safety and Health Appeals Bd. CA3
Received for posting 10/4/16
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THYSSENKRUPP ELEVATOR CORPORATION, C077115
Plaintiff and Appellant, (Super. Ct. No. 34-2013-
80001456-CU-WM-GDS)
v.
MODIFICATION OF
OCCUPATIONAL SAFETY AND HEALTH OPINION UPON DENIAL
APPEALS BOARD, OF PETITION FOR
REHEARING
Defendant and Respondent;
[NO CHANGE IN
DEPARTMENT OF INDUSTRIAL RELATIONS, JUDGMENT]
DIVISION OF OCCUPATIONAL SAFETY AND
HEALTH,
Real Party in Interest and Respondent.
THE COURT:
It is ordered that the opinion filed herein on August 31, 2016, be modified as
follows:
1
1. On page 17, at the end of the first sentence in the paragraph following the
heading “I Standard of Review,” insert the following: “(See In re Gal Concrete Const.
Co. (Cal. OSHA, Sept. 27, 1990, Nos. 89-R3D5-317, 318) 1990 CA OSHA App.Bd.
LEXIS 3; see also Barnes v. Chamberlain (1983) 147 Cal. App. 3d 762, 767 [“One
seeking to be excluded from the sweep of the general statute must establish that the
exception applies”].)” That paragraph will now read:
“The parties agree that at the administrative level, CalOSHA had the burden to
prove a safety standard was violated, and ThyssenKrupp had the burden to prove any
exceptions or affirmative defenses applied. (See In re Gal Concrete Const. Co. (Cal.
OSHA, Sept. 27, 1990, Nos. 89-R3D5-317, 318) CA OSHA App.Bd. LEXIS 3; see also
Barnes v. Chamberlain (1983) 147 Cal. App. 3d 762, 767 [“One seeking to be excluded
from the sweep of the general statute must establish that the exception applies”].) On
appeal from the trial court’s mandamus ruling, the appropriate standard of review is as
follows:”
2. On page 25, at the end of the second paragraph following the sentence:
“And, as ThyssenKrupp replies, an employer cannot violate an exception; it can only fail
to satisfy it.” A footnote is to be inserted which reads:
“7. In its rehearing petition, CalOSHA insists that failure of the workers to
mechanically block the escalator provides a sufficient ground for the citation and that we
have misconstrued the regulation as a matter of law by focusing on inadvertent
movement. But the purpose of the regulation is to prevent any movement not necessary
to effectuate the repairs. The record here shows that any mechanical block used would
have prevented the workers from moving the escalator to test and effectuate the repairs.
This is not like cases where a worker is injured because the machine is never shut down
at the outset of the repair, or where part of a machine moves unexpectedly during repairs,
injuring the worker.”
2
3. On page 27, at the end of the first full paragraph ending in “shows
substantial evidence to support the Board’s finding,” a footnote is to be inserted which
reads:
“8. CalOSHA’s rehearing petition contends we have failed to apply the
employer’s burden to prove an exception or affirmative defense, by stating that
CalOSHA did not show what more ThyssenKrupp could have done. This is incorrect.
We have reviewed and summarized the record, which shows there is no substantial
evidence to support the Board’s finding, and that ThyssenKrupp’s evidence established
adequate training under the circumstances, that is, the evidence shows ThyssenKrupp met
the exception.”
4. On page 28, at the end of the second full paragraph ending in “given the
rules and training the men received,” a footnote is to be inserted which reads:
“10. CalOSHA’s rehearing petition points out that an employer’s remedy for a
perceived “burdensome” regulation is to seek to have it changed, or try to obtain a
variance, not to fail to comply with it. We agree. (See In re Hooker Industries, Inc. (Cal.
OSHA, Feb. 24, 1982, No. 77-525) CA OSHA App.Bd. Lexis 10; Lab. Code, § 143.)
But we do not use the term ”burdensome” in our opinion in that sense; instead, we merely
hold there is no substantial evidence that it was an accepted repair procedure to reinstall
the missing step each time the tension was adjusted, only Weiss’s unsupported suggestion
to that effect. In other words, we hold ThyssenKrupp did not fail to comply with the
regulation, not that the regulation was so burdensome that ThyssenKrupp was excused
from complying therewith.”
The footnotes in the opinion must be renumbered to accommodate the footnotes
inserted by this modification.
3
As modified, the petition for rehearing is denied. This modification does not
change the judgment.
FOR THE COURT:
/s/
ROBIE, Acting P. J.
/s/
MURRAY, J.
/s/
DUARTE, J.
4
Filed 8/31/16 ThyssenKrupp Elevator Corp. v. Occupational Safety and Health Appeals Bd. CA3 (unmodified
version)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THYSSENKRUPP ELEVATOR CORPORATION, C077115
Plaintiff and Appellant, (Super. Ct. No. 34-2013-
80001456-CU-WM-GDS)
v.
OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD,
Defendant and Respondent;
DEPARTMENT OF INDUSTRIAL RELATIONS,
DIVISION OF OCCUPATIONAL SAFETY AND
HEALTH,
Real Party in Interest and Respondent.
ThyssenKrupp Elevator Corporation (ThyssenKrupp) appeals from the denial of
its mandamus petition to overturn three citations issued by real party in interest California
Department of Industrial Relations, Division of Occupational Safety and Health
1
(CalOSHA), upheld by the California Occupational Safety and Health Appeals Board
(Board). ThyssenKrupp was penalized $5,960 after an employee suffered a foot
amputation while working on an escalator. We reverse with directions to grant the
petition in part, for lack of substantial evidence that ThyssenKrupp committed two of the
three violations.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural Overview
This appeal follows a decision by an administrative law judge (ALJ) after a
hearing over three days, a partly successful reconsideration motion--in effect, an
administrative appeal--to the Board, and a mandamus proceeding in the Superior Court.
As briefly summarized by the Board in denying ThyssenKrupp’s reconsideration
petition:
“Two of [ThyssenKrupp’s] employees were sent to a commercial office
building in Sacramento, California to troubleshoot an escalator. In the course of
their work they removed a step from the escalator and started [the escalator] to
diagnose the problem, then stopped [it] again. One of the [workers] repaired the
escalator by working through the gap created by the missing step. At the first
worker’s request, the other then walked up the escalator from the bottom to the
upper landing to start the escalator. When he reached the top and leaned over to
use the start switch his foot dropped into the gap formed by the removed step and
when the escalator began moving a rising step amputated his foot.”
We will provide a more detailed statement of the evidence, post.
Based on this event, CalOSHA issued three citations (counts) and separate
monetary penalties against ThyssenKrupp, alleging violations of safety regulations as
follows: 1) failure to provide written lockout/tagout procedures to de-energize the
escalator, for which a penalty of $560 was assessed (Cal. Code Regs., tit. 8, § 3314, subd.
(g)(2)(A));1 2) failure to lock out the machinery prior to servicing, for which a penalty of
1 Further undesignated section references are to this title.
2
$5,400 was assessed (id., § 3314, subd. (c)); and 3) failure to guard mechanical pinch and
shear points, for which a penalty of $18,000 was assessed (id., § 4002, subd. (a)). These
counts and penalties were upheld by the ALJ.
On reconsideration by the Board, all three counts were affirmed. But because the
Board found the hazard sought to be averted by the regulation supporting the third count
was the same as that supporting the second, it deemed the penalty duplicative and the
third count “less directly related”; thus the penalty for that count was zeroed out.2
ThyssenKrupp filed a mandamus petition, which the trial court denied after a
hearing. ThyssenKrupp timely appealed from the ensuing judgment.
The Administrative Hearing
We first describe the pleaded issues, that is, the specific violations alleged by
CalOSHA and ThyssenKrupp’s administrative responses thereto. We detail the relevant
regulations as necessary in the Discussion portion of our opinion, post.
Count 1--failure to provide specific written procedures--alleged ThyssenKrupp’s
written safety procedures did not “include separate procedural steps for the safe
lockout/tagout of each machine or piece of equipment associated with the type of work
the company does on escalators for its various clients.” ThyssenKrupp administratively
appealed, alleging it developed and implemented appropriate procedures, satisfied
exceptions in the regulation, and that the cited regulation did not apply.
Count 2--failure to lock machine before servicing--alleged a ThyssenKrupp
employee “was cleaning, repairing, and servicing an escalator . . . that was capable of
movement. The escalator was not stopped and the power source not de-energized or
2 As support for this ruling, the Board cited a prior Board decision holding in relevant
part: “While multiple citations involving a single hazard are appropriate and typically
will be upheld, the same is not true for duplicative penalties.” (In re Sherwood
Mechanical, Inc. (Cal. OSHA, June 28, 2012, Nos. 08-R3D2-4692, 4963) 2012 CA
OSHA App.Bd. Lexis 65, italics added.)
3
disengaged and, if necessary, the moveable parts were not mechanically blocked or
locked out to prevent inadvertent movement resulting in the employee sustaining a
serious injury.” ThyssenKrupp replied in part that an unforeseeable employee act caused
the injury, the cited regulation did not apply, and if it did apply, ThyssenKrupp either
complied with it or satisfied an exception, and “[c]ompliance would have made the work
impossible.”
Count 3--failure to guard pinch and shear points--alleged in part that an “escalator
step was removed to expose parts of the escalator or components of the escalator and
upon removing the step, exposed the employee to a hazardous revolving, running,
drawing, or similar act including shear points that [were] not guarded by the frame of the
machine or location.” ThyssenKrupp’s response in relevant part alleged the cited
standard did not apply.
Evidence at the Administrative Hearing
The parties stipulated that the accident occurred on April 13, 2011, in a building at
2901 K Street in Sacramento. This was referred to in the record as the UC Davis or
Sutter Square Galleria.
Joshua Harrell
Joshua Harrell testified he was an “80 percent mechanic” with nearly five years of
experience with ThyssenKrupp, and that he and Steve Moore, a mechanic with whom
Harrell had worked for nearly three years, were sent to investigate a noisy handrail that
was running hot. Harrell testified Moore was senior to him and he was the helper, but
also testified that Moore was not his supervisor. Harrell had passed the necessary tests to
be a mechanic, but had agreed via his union to be treated as an assistant mechanic. The
escalator was not running when they arrived, but the men heard the noise when they ran
it. There are two red panic buttons, one at the bottom landing and one at the top landing,
and one stop switch at the bottom. The panic switch is “momentary” but the “stop switch
keeps it from coming back on, electrically” until a key is used. Moore had a variety of
4
such keys, and by trial-and-error found one that worked; there is no master key that
works on all escalators. A key will not stop an escalator, it can only start it. Moore rode
the escalator to diagnose the problem. The men got their tools, then barricaded the top
and bottom of the escalator. They partly removed a handrail on the side making noise,
but found nothing wrong and, after cleaning it, put it back on.
Moore turned the escalator back on, using his key on the top, to see whether the
problem was fixed; it wasn’t. They turned it off, went back to the bottom, and removed
the bottom pit access cover, and removed one of the steps. The men then ran the
escalator until Moore thought he could hear where the noise was coming from, riding two
or three steps behind--meaning below--the gap, where he could see the moving parts to
determine what was wrong. When Moore told Harrell the stairs were where he wanted
them, Harrell used a stop switch in the pit to shut off the escalator. The men each made
adjustments to what Harrell described as a handrail tensioning device, located under the
steps. They did this several times, turning the escalator on in between, while the men
stood on the landing to see if the problem was fixed, and using the panic button at the top
and then the stop switch at the bottom to turn the escalator off before re-adjusting the
unit. It is possible to stop the escalator with the panic button alone, and adjust it, but it is
not safe to do so. The stop switch, once used, must be manually pulled out, otherwise the
key switch will not restart the escalator. Once the stop switch is used, no movement is
possible, barring a freak malfunction.
The men thought they had largely solved the problem, took a lunch break, then
returned and ran the escalator so Moore could ensure it was fixed. Harrell went to the
lower pit, removed tools from the steps, walked up, and used the key switch to turn the
escalator on. As he was close to the upper landing, he bent down to turn the key switch.
Harrell does not remember the accident itself. He remembers stepping over the gap,
bending down with his back toward the escalator, and turning it on.
5
When an escalator is used normally, the internal components pose no hazard, as
they are covered by steps. Harrell and Moore had removed steps to repair escalators
before, and it was necessary to move the escalator to diagnose or repair the problem. No
guard over the gap is used.
Harrell identified ThyssenKrupp’s escalator safety practices. One rule provides:
“NEVER start, or attempt to start a unit while anyone is on or in the unit.” Harrell
testified he had been trained on that rule and considered it “common sense.” He also
understood a written rule providing: “When any steps . . . are removed, ALWAYS work,
and ONLY if necessary, ride below the opening.” He testified the purpose of this rule
was to keep the gap in front to see where it is going, so “you’re not slipping in the hole
that’s behind you. You’re able to step away from it and over it.” Although the written
escalator practices do not mention Hitachi escalators, in Harrell’s view “they applied to
almost every escalator” and there was nothing about the Hitachi escalator he was working
on that was unique or contributed to the accident. However, the location of the switches
differs by brand of escalator.
Harrell testified that if--as seems likely--his foot had been on the top escalator step
when he started the escalator, he violated ThyssenKrupp’s safety rules. His feet should
have been on the landing when he turned the switch. He identified ThyssenKrupp’s
lockout/tagout procedures, on which he had been trained.
Jon Weiss
Jon Weiss, the Sacramento District Manager for CalOSHA enforcement and a
safety engineer, testified ThyssenKrupp’s lockout procedures, which referenced federal
regulations, were “extremely general and California requires you have specific lockout
procedures for each piece of equipment or processor[] and I didn’t see there was
anything, one that spoke to escalators -- in particular to the Hitachi escalator that’s the
center of this case.” In his view, ThyssenKrupp could rewrite the procedures to take into
account all the various types of equipment or could combine “similar escalators that were
6
identical.” Otherwise, even if there were thousands of different makes and models,
Weiss would expect separate procedures for each. However, he had not researched
whether any company actually does that, although he had spoken to Michael Boyle, in
CalOSHA’s elevator unit about this case. In particular, he did not ask Boyle whether the
escalator regulatory code for California requires escalators regardless of make and model
to have disconnects that operate the same way. He also testified that with the step
removed, the escalator created a shearing hazard. The zone of danger from moving parts
is generally considered to be about six feet, and Harrell’s foot was within this zone before
the accident. Regarding count 2--failure to lock machinery--Weiss testified that a proper
lockout/tagout required the workers “to put a tag as well as secure the energy source” and
tags should have been put “at both the upper and lower locations.” Weiss testified the
escalator could have been guarded by replacing the step or by using a clear glass or
plastic step to cover the opening. However, he conceded he did not know if such a guard
existed, in any form. When the step is in place, there is no mechanical pinch point that
presents a danger. He added that ThyssenKrupp could have put up gates to block access
to the opening.
Weiss had never worked in the elevator or escalator industry and had no
background in the repair of such machines, but he had investigated one or two elevator
accidents. He did not compare ThyssenKrupp’s lockout/tagout procedures with any
others used in the industry. He agreed the workers required power to the escalator to
work on it. Weiss conceded ThyssenKrupp had not been faulted for any failure of
training on lockout/tagout procedures. There was nothing preventing Harrell from
standing on the landing--a safe location--before Harrell turned the key switch.
Steve Moore
Moore testified he has about 31 years of experience with elevator/escalator repair
companies. He has worked on Hitachi escalators before. He did not consider himself
Harrell’s supervisor, but testified that on the day of the accident he was the mechanic and
7
Harrell was assisting him. There was nothing unusual about the repair job, which
involved a “popping noise,” which Moore knew was the drive chain and which required
removing a step to fix. This was a common type of repair that he and Harrell had done
before. He knew of no extant replacement step that could have been used during the
repairs, nor was it feasible to replace the actual step in between each adjustment. Once
the step was removed, it was necessary to move the escalator to diagnose the problem.
The only way to move it was with the key switch, and the men had one key for that
escalator. When the drive chain, located at the upper end, is actually being adjusted, the
escalator is not moving. However, the escalator needs to move to spot the problem.
Once the gap from the removed step was in the right place to allow access to the drive
chain, the men would lock out the power with a company lock at the upper switch. When
Moore rides an escalator with a missing step, he rides “a minimum two steps behind the
hole.”
The men completed working on the drive chain before lunch, and after lunch
Moore decided to see if the handrail would heat up again. Moore told Harrell to run the
unit, because it would take time to heat up. Moore then saw that Harrell’s posture was
“funny” and that he had his hand on the key, and Moore tried to say “no” but the
escalator started, “his foot went in there,” and Moore rushed to the stop switch. Harrell’s
“foot was like half on that exposed step and half on the comb segment.” Harrell must
have told Moore that the lower stop switch was on, or Moore would not have told him to
start the unit while the men were at the top. The escalator could not have moved as
Harrell stepped over the gap; Harrell had to have turned the key switch.
ThyssenKrupp regularly trains its employees on its safety manual and audits job
sites to ensure workers are acting safely. Workers can be disciplined for violating the
rules. Moore had been trained on the rules against standing on an escalator when it is
starting, and the need to ride below an open step.
8
In Moore’s experience, all lockout/tagout procedures are very similar and are
effective on the escalators he works on. California safety codes require that escalator
disconnects function similarly regardless of the type of escalator, and are easy to locate;
the steps to perform a lockout/tagout are the same. Activation of the disconnect shuts
down the main power source for the motor, leaving no residual energy in the escalator.
In Moore’s opinion, Harrell’s foot was in the wrong place.
David Nicholson
David Nicholson was a ThyssenKrupp employee who had worked in the escalator
repair field for 23 years, and was a state-certified mechanic. He described
ThyssenKrupp’s safety training program. It is common to remove steps to service an
escalator, and this usually requires exposing the internal mechanism. He had reviewed
witness statements and the CalOSHA file on this accident. To resolve the reported
handrail problem, a step would be removed to access the handrail drive chain to adjust it.
ThyssenKrupp’s safety rules are consistent with industry standards. Nicholson knew of
no guard that can be installed to cover a removed step, nor would it be possible to make
one and still operate the escalator. If there were a “see-through” step--which there isn’t--
it would have to mimic the removed step exactly. When a stop switch is activated, the
key switch will not work. The only way to position the gap is to remove the step from
the bottom, and ride below the gap to spot the handrail drive mechanism. After the stop
switch is used there is no possibility of escalator movement, even when stepping over the
gap.
Placing a foot where Harrell evidently did violated ThyssenKrupp’s safety rules
and is something Nicholson would never do; instead, a worker should stand on the
landing. Further, the gap should always be kept in front of the worker.
ThyssenKrupp’s lockout/tagout procedures are effective on every make and model
of escalator because all the disconnects are the same on every unit and “pretty much in
the same place” and they function similarly. All escalators have a single energy supply
9
that is readily identifiable. Different models may have different configurations of drives,
but the disconnect switches could be found in the same place, the upper pit, and all
operate in the same way. He conceded that within the pit the disconnect could be located
in different places. On all kinds of escalators, once the disconnect switch is used, no
energy is stored in the machine. The sequence of locking out an escalator is the same
regardless of make and model. Nicholson knew of no company that used separate
procedures for different escalators, nor would it be feasible to carry around such a
compilation.
Nicholson would have turned the escalator on from the bottom rather than the top.
George Karosas
George Karosas, a licensed professional engineer, testified as an engineering and
workplace safety expert for ThyssenKrupp, specifically, on the areas of “control of
hazardous energy, machine guarding, and safety engineering.”
Karosas reviewed ThyssenKrupp’s hazardous energy control procedures, as well
as a national standards manual, and prepared a report on his findings. His report
concluded the accident occurred because Harrell placed one foot partly on the top step of
the escalator (rather than on the landing) while he activated the key switch, such that
when his foot slipped, it went down into the gap and was “trapped . . . at the comb plate.”
Karosas’s report states that “[w]hile escalators vary in features such as length and
width, capacity and appearance, the design of the equipment is very similar. An escalator
is a power-driven, continuously moving, inclined stairway. It consists of an endless chain
of moving steps driven by a motor. The motor turns the main drive shaft, which powers
the step chain(s) to move the steps in an endless loop. The escalator steps are actually
wedge-shaped units that move along a continuous conveyor.” The report adds that all
escalators in the United States and Canada must comply with standards promulgated by
the American Society of Mechanical Engineers (ASME), specifically, ASME A17.1
Safety Code for Elevators and Escalators, which further requires escalators to be installed
10
according to NFPA, the National Electric Code. He testified that that national electrical
code “establishes common design and operational characteristics of electrical disconnects
so that the procedural steps to de-energize are similar for that class or group of
machinery” and therefore any differences the Hitachi escalator had from any other
escalator were immaterial to anyone working on the unit. It would not be feasible “and
likely would be impossible” for a company to have specific procedures for every type of
escalator. He opined count 1--alleging inadequate lockout/tagout procedures--was
inappropriate for this reason.
According to Karosas, Harrell had ample room to position himself safely on the
landing before turning on the escalator, and simply failed to adhere to the training on this
subject he had been given, therefore the count 2 citation--alleging failure to lock
machinery--was inappropriate. Placing a temporary step was not feasible.
Karosas opined the count 3 citation--alleging failure to guard pinch and shear
points--was inappropriate because the cited regulation does not apply to equipment being
serviced, and the escalator had all appropriate safety devices for use during normal
operation.
Robert Brandley
Robert Brandley, ThyssenKrupp’s West Region Safety Manager (covering
California and Nevada) had started as a field mechanic, installing, servicing, and
repairing, elevators, lifts, and dumbwaiters. The afternoon of the accident he flew in
from Burbank and took statements from Harrell and Moore. There was no reason for
Harrell to have his foot on the top step before starting the escalator. Brandley had
presented an escalator safety class that Harrell had attended, covering rules about not
working on or around moving equipment, and riding behind an opening. He identified
documents showing Harrell had attended various safety classes before the accident.
11
Harrell violated company policy both by having his foot in an unsafe place and not
having the gap in front of him, where he could see it. Harrell was given formal written
discipline for his actions and did not contest the discipline through available procedures,
but instead accepted the discipline; nor did Harrell’s union grieve the discipline, as it
might have done. On the day of the accident, Harrell, referring to “body placement and
so on,” told Brandley he had “screwed up” and was sorry. Brandley described the
disciplinary system ThyssenKrupp uses to ensure employees follow safety rules, and
authenticated documents showing internal safety citations given to employees for various
breaches. Harrell had been to training classes that included lockout/tagout procedures,
and Brandley authenticated records corroborating his testimony.
In Brandley’s view, although there are different brands of escalators, both as to the
escalators and their power disconnects, their design and functionality all operate the
same. This is due to state and federal regulations governing escalators and elevators.
However, Brandley conceded that different types of equipment are not installed the same
way, and agreed there is the “potential for different equipment” in different escalators.
According to ThyssenKrupp procedures, if a step is removed, it should be kept in
front of the worker so the gap can be seen. If movement is necessary, the worker must
stand below the gap. These procedures were not in the lockout/tagout section of the
safety manual, Exhibit F, but in a separate section subtitled “Escalators and Moving
Walks,” Exhibit E, which states equipment should never be started “while anyone is on or
in the unit” and that if any steps are removed, if it is necessary to ride on the unit, “ride
below the opening.”
The ALJ’s Findings
As for count 1--failure to provide specific written lockout/tagout procedures--the
ALJ found ThyssenKrupp’s lockout/tagout procedure manual “does not use the word
‘escalator’ anywhere in the document. The word ‘elevator’ is used three times. This is
not a procedure for each machine, as it is for both escalator and elevator lockout/tagout
12
procedure. Rather, it is a procedure for two different groups of machines, specifically
escalators and elevators.” Further, ThyssenKrupp did not meet its burden to show that
the first exception to the regulation, that the operational controls are configured in a
similar manner and locations of disconnect points are identified, applied both because
there is no discussion how operational controls are configured and there is no indication
of the locations of disconnect points. Nor did ThyssenKrupp establish the second
exception, applicable where the machinery has a single energy supply that is readily
identified and isolated, because such an interpretation of the exception would make “the
exception meaningless. Any machine with a single energy source would qualify. The
construction which gives the exception meaning is that all of the group or type of
machines . . . must have a single readily identified and isolated energy supply” and a
“group of escalators at different location[s] would have multiple energy sources,
generally one for each escalator. [¶] Expert testimony was offered that all escalators
have power disconnects located in the pits at their top landings but this information is not
contained in” the ThyssenKrupp procedure manual. The ALJ quoted a prior Board
decision, providing in part that “[i]t would make little sense and would not afford
meaningful employee protection to interpret the safety order as simply allowing a
generalized outline which does not specify (or purports to apply to all) machinery or
equipment on which employees would [work].” (In re Eel River Sawmill (Cal. OSHA,
Sept. 3, 2003, No. 00-R2D3-3623, 2003) CA OSHA App.Bd. Lexis 95.)
As for count 2--failure to lock out the machinery prior to servicing--the ALJ found
machinery capable of movement had not been de-energized, blocked, or locked out, so as
to prevent movement during servicing. In the ALJ’s view, the lack of sufficiently
specific lockout/tagout procedures (i.e., the purported count 1 violation) caused Harrell to
start the machine while he was in a “zone of danger, which he would not have been in”
had ThyssenKrupp’s procedures been adequate. Due to the purported lack of adequate
13
procedures, ThyssenKrupp could not establish its defense of “independent” employee
action.3
As for count 3--failure to guard mechanical pinch and shear points--the ALJ found
ThyssenKrupp violated a rule precluding removal of guards (i.e., the step) to protect
against machinery, and rejected ThyssenKrupp’s claim that training was sufficient to
guard against this danger.
The Board’s Decision on Reconsideration
The Board upheld the bulk of the ALJ’s findings.
As for count 1, alleging lack of specific procedures, the Board rejected
ThyssenKrupp’s claims that all escalators have the same basic layout as required by
California escalator codes, and instead found that “[e]levators and escalators were not
shown to have sufficient similarity” to satisfy the first exception to the safety rule, nor
was there a sufficient “showing that both types of machines have the same layouts of
power sources, cutoffs, and so on. Thus, even if all escalators are the same,
[ThyssenKrupp’s] procedure was faulty because it applied to mechanisms other than
escalators.” The Board also rejected ThyssenKrupp’s assertion that training was an
adequate substitute for appropriate procedures, because “[t]here is no mention in the
3 That defense requires an employer to show “ ‘1. The employee was experienced in the
job being performed, [¶] 2. Employer has a well-devised safety program which includes
training employees in matters of safety respective to their particular job assignments, [¶]
3. Employer effectively enforces the safety program, [¶] 4. Employer has a policy which
it enforces of sanctions against employees who violate the safety program, and [¶] 5. The
employee caused a safety infraction which he or she knew was contra to the Employer’s
safety requirement.’ ” (Davey Tree Surgery Co. v. Occupational Safety & Health
Appeals Bd. (1985) 167 Cal. App. 3d 1232, 1239 (Davey); see Gaehwiler v. Occupational
Safety & Health Appeals Bd. (1983) 141 Cal. App. 3d 1041, 1044-1045; In re Sacramento
Bag Mfg. Co. (Cal. OSHA, Dec. 11, 1992, No. 91-R2D1-320) CA OSHA App.Bd. Lexis
9.)
14
safety order of training as a means of complying with or as a substitute for having
lockout/tagout procedures.”
As for count 2, alleging failure to lockout, the Board rejected ThyssenKrupp’s
claim the machinery needed to be moving during servicing, because there was no
evidence ThyssenKrupp provided suitable alternatives (such as extension tools) to allow
the workers to service the machine safely without the guard (the step) in place. The
Board also rejected ThyssenKrupp’s claim that training was an adequate substitute, and
the accident was caused by Harrell’s violation of adequate training, given that Harrell
“was positioned above the gap created by the removed step, rather than below it, as was
the appropriate practice.” The Board twice referenced Harrell’s violation of training, but
did not identify specific defects in the training, instead finding “[t]he evidence did not
provide sufficient detail” about the training.4
As for count 3, alleging failure to guard, the Board rejected ThyssenKrupp’s
contention that the rule in question applied to and only to machinery in its normal
running condition, not machinery that was being repaired. The Board rejected
ThyssenKrupp’s claim that it had no reason to know Harrell would violate safety
procedures, because ThyssenKrupp’s “failure to provide an adequate lockout/tagout
procedure, by itself, created the hazard of injury.” However, the Board agreed with
ThyssenKrupp that the hazard addressed by the rule breached in count 3 (an employee’s
body contacting a moving piece of machinery) was the same hazard addressed by the rule
breached in count 2 (preventing machinery from moving or providing extension tools to
prevent an employee’s body from contacting a moving piece of machinery) and therefore
the penalty for violating count 3 should be reduced to zero. “In this matter, the hazard
4 The Board also rejected an interpretive claim about the regulation that ThyssenKrupp
does not press on appeal; therefore, we do not discuss it.
15
could have been abated by making certain both employees were out of harm’s way before
re-starting the escalator, a procedure or step consistent with lockout/tagout.”
At this point in its decision, the Board inserted a footnote stating that “for
purposes of penalty correction,” the Board accepted ThyssenKrupp’s evidence that there
“is no means to guard the gap created by removing a stair.”
Ruling Denying Mandamus Relief
The trial court denied ThyssenKrupp’s mandamus petition, finding ThyssenKrupp
did not show the Board misapplied the law or that no substantial evidence supported the
Board’s decision.
As for count 1, the trial court rejected ThyssenKrupp’s view that it had a “master”
lockout/tagout procedure that qualified under the exceptions to the regulation. Both
“conditions,” or exceptions to the regulation required that there be “a group or type of
machinery or equipment” (§ 3314, subd. (g)(2)(A); see part III Discussion post), but
ThyssenKrupp had “not shown that escalators and elevators are a ‘group or type of
machinery’ ” as contemplated. The court observed that “these two types of machines
differ greatly and their operational controls may not be configured in a similar manner”
and at best ThyssenKrupp showed that all types of escalators had similar operational
controls.
As for count 2, which addresses “inadvertent” movement by requiring equipment
to be locked before servicing (§ 3314, subd. (c); see part IV Discussion post), the trial
court rejected ThyssenKrupp’s claim that the machinery was intentionally moved as part
of the repair process. The court further held that ThyssenKrupp did not satisfy its duty to
minimize the hazard (§ 3314, subd. (c)(1)) because its evidence of employee training was
insufficiently detailed, and because ThyssenKrupp’s lockout/tagout manual was deficient,
as shown by the count 1 violation: “The ALJ concluded that the absence of ‘guidance’
included in a proper lock-out/tag-out procedure resulted in Harrell re-starting the
escalator while too close to the open escalator step.”
16
As for count 3, the trial court rejected ThyssenKrupp’s contention that the
regulation at issue, which pertained to the removal of steps which resulted in exposing
machinery (§ 4002, subd. (a), see part V Discussion post), did not apply to machinery
being repaired.
Accordingly, the trial court denied ThyssenKrupp’s petition in its entirety.
ThyssenKrupp timely filed its notice of appeal from the ensuing judgment.
DISCUSSION
I
Standard of Review
The parties agree that at the administrative level, CalOSHA had the burden to
prove a safety standard was violated, and ThyssenKrupp had the burden to prove any
exceptions or affirmative defenses applied. On appeal from the trial court’s mandamus
ruling, the appropriate standard of review is as follows:
“ ‘Our function on appeal is the same as that of the trial court in ruling on
the petition for the writ. We must determine whether based on the entire record
the Board’s decision is supported by substantial evidence and whether it is
reasonable. [Citations.] Where the decision involves the interpretation and
application of existing regulations, we must determine whether the administrative
agency applied the proper legal standard. [Citation.] Since the interpretation of a
regulation is a question of law, while the administrative agency’s interpretation is
entitled to great weight, the ultimate resolution of the legal question rests with the
courts. . . . An agency’s expertise with regard to a statute or regulation it is
charged with enforcing entitles its interpretation of the statute or regulation to be
given great weight unless it is clearly erroneous or unauthorized. . . . However,
‘[a]n administrative agency cannot alter or enlarge the legislation, and an
erroneous administrative construction does not govern the court’s interpretation of
the statute.’ ” (Rick’s Electric, Inc. v. Occupational Safety & Health Appeals Bd.
(2000) 80 Cal. App. 4th 1023, 1033-1034 (Rick’s Electric).)
By statute, a court may not disturb a Board decision unless, inter alia, it is not
supported by substantial evidence. (Lab. Code, § 6629, subd. (d).) “In reviewing the
Board’s factual determinations, both the trial court and this court apply the familiar
substantial evidence rule. [Citations.] We view the evidence in a light most favorable to
17
the Board’s decision, drawing all reasonable inferences and resolving all conflicts in the
evidence in favor of the decision.” (Teichert Construction v. California Occupational
Safety & Health Appeals Bd. (2006) 140 Cal. App. 4th 883, 887-888.) “So long as the
whole record so viewed reveals in support of the judgment evidence of ponderable legal
significance, i.e., evidence which is reasonable, credible, and of solid value, we must
affirm.” (Gaehwiler, supra, 141 Cal.App.3d at p. 1045, fn. 2.)
Substantial evidence “ ‘ “reasonably inspires confidence” ’ . . . and is ‘credible and
of solid value.’ ” (People v. Raley (1992) 2 Cal. 4th 870, 891.) Although inferences may
constitute substantial evidence, they must be the probable outcome of logic applied to
direct evidence; speculative possibilities or conjecture are insufficient. (See Kuhn v.
Department of General Services (1994) 22 Cal. App. 4th 1627, 1633; Louis & Diederich,
Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal. App. 3d 1574, 1584-1585.)
Nor does disbelief of a witness entitle a trier of fact to infer the opposite of the
disbelieved testimony. (See Estate of Kilborn (1912) 162 Cal. 4, 13; Beck Development
Co. v. Southern Pacific Transportation Co. (1996) 44 Cal. App. 4th 1160, 1204-1205.)
II
Disregard of Prior Administrative Decisions
ThyssenKrupp contends the trial court committed reversible error because it did
not consider prior Board decisions in ruling on ThyssenKrupp’s mandamus petition.
The trial court declined to consider the Board’s prior decisions--cited by both
ThyssenKrupp and CalOSHA in the trial court--because no copies had been lodged with
the court, no pinpoint citations to relevant portions were provided, and their precedential
value had not been explained; later the trial court suggested that a request for judicial
notice of the prior Board decisions should have been sought.
We find no error. Instead of merely citing them in moving papers, ThyssenKrupp
could have provided the trial court with copies of relevant administrative decisions. (See
Cal. Rules of Court, rule 3.1113(i)(1) [format for presenting nonstandard authorities].)
18
Or, as the trial court suggested, ThyssenKrupp could have sought judicial notice of them.
(See Evid. Code, § 452, subd. (c); United Assn. Local Union 246, AFL-CIO v.
Occupational Safety & Health Appeals Bd. (2011) 199 Cal. App. 4th 273, 278-279 & fn.
5.)
We do note, however, that California courts, including this court and our Supreme
Court, routinely cite Board decisions to show prior Board interpretations of relevant
safety regulations. (See, e.g., Elsner v. Uveges (2004) 34 Cal. 4th 915, 930; Rick’s
Electric, supra, 80 Cal.App.4th at pp. 1034, 1037; Overaa Construction v. CA
Occupational Safety & Health Appeals Bd. (2007) 147 Cal. App. 4th 235, 241, 247, fn. 18;
Davey, supra, 167 Cal.App.3d at pp. 1241-1242.) But the fact that the prior Board
decisions were permissible authorities for the trial court to consider does not change the
fact that ThyssenKrupp did not either lodge them with the court or seek judicial notice of
them. We cannot say it was error for the trial court to insist on being provided with
nonstandard authorities cited to it.
Further, even if we were to find the trial court’s refusal to consider prior Board
decisions amounted to an abuse of discretion, the error would not compel reversal
because ThyssenKrupp does not explain how it was prejudiced by the trial court’s ruling.
It does not even cite the particular decisions which the trial court declined to consider in
this portion of its briefing, so we have no occasion to consider whether, in fact, they were
relevant and persuasive on the issues discussed. Accordingly, we turn to ThyssenKrupp’s
substantive claims of error.
III
Lack of Adequate Lockout/Tagout Procedures
Count 1 cited ThyssenKrupp for violating section 3314, subd. (g)(2)(A), in that
ThyssenKrupp’s safety procedures did not “include separate procedural steps for the safe
lockout/tagout of each machine or piece of equipment associated with the type of work
the company does on escalators for its various clients.” The regulation begins as follows:
19
“A hazardous energy control procedure shall be developed and utilized by the employer
when employees are engaged in the cleaning, repairing, servicing, setting-up or adjusting
of prime movers, machinery and equipment.” (§ 3314, subd. (g).) It continues: “The
employer’s hazardous energy control procedures shall be documented in writing. [¶] (A)
The employer’s hazardous energy control procedure shall include separate procedural
steps for the safe lockout/tagout of each machine or piece of equipment affected by the
hazardous energy control procedure.” (§ 3314, subd. (g)(2)(A).)
The men were working on a Hitachi escalator. ThyssenKrupp’s written
lockout/tagout procedures manual refers to elevators, not escalators. Under CalOSHA
regulations, both escalators and elevators are considered “conveyances,” or “[a]ny
elevator, dumbwaiter, escalator . . . or other equipment subject to this chapter.” (§ 3009.)
However, the basic definition of an elevator is: “A hoisting and lowering mechanism
which moves a car or platform in fixed guides in, a substantially vertical direction and
which is designed to carry passengers or freight, or both, between two or more fixed
landings.” (Ibid.) The basic definition of an escalator is: “A moving, inclined,
continuous stairway used for raising or lowering passengers.” (Ibid.) Thus, the two
types of conveyance machines are not the same under the regulations.
Thus, it was necessary for ThyssenKrupp to demonstrate that a regulatory
exception to the safety rule applied. The regulation provides:
“Exception to subsection (g)(2)(A): The procedural steps for the safe
lockout/tagout of prime movers, machinery or equipment may be used for a group or
type of machinery or equipment, when either of the following two conditions exist:
“(1) Condition 1:
“(A) The operational controls named in the procedural steps are configured
in a similar manner, and
“(B) The locations of disconnect points (energy isolating devices) are
identified, and
20
“(C) The sequence of steps to safely lockout or tagout the machinery or
equipment are similar.
“(2) Condition 2: The machinery or equipment has a single energy supply
that is readily identified and isolated and has no stored or residual hazardous
energy.” (§ 3314, subd. (g)(2)(A), italics added.)
As indicated in the italicized portion and as emphasized by the Board and by
CalOSHA on appeal, both conditions may apply only to “a group or type of machinery or
equipment.” The Board found ThyssenKrupp failed to carry its burden of proof on this
element of both exceptions because “[e]levators and escalators were not shown to have
sufficient similarity.”
We accept that ThyssenKrupp introduced substantial--perhaps even
uncontradicted--evidence that all escalators are configured in materially the same way,
regardless of make or model, because of standardized codes applicable in California and
that no company in the industry creates separate procedures manuals for each escalator.
But even if the electronic controls of all escalators are configured in materially the same
way, this fact does not demonstrate the similarity between escalator and elevator control
systems. The Board found that ThyssenKrupp’s procedures, Exhibit F, “covered both
elevators and escalators, and there was no showing that both types of machines have the
same layouts of power sources, cutoffs, and so on. Thus, even if all escalators are the
same, [ThyssenKrupp’s] procedure was faulty.”
To refute this point, ThyssenKrupp asserts in its opening brief that, as to escalators
and elevators, “the rules for one are the same as the rules for the other.” However,
because no record citation follows this assertion, we disregard it. (See Duarte v. Chino
Community Hospital (1999) 72 Cal. App. 4th 849, 856.) Later in its brief ThyssenKrupp
asserts escalators and elevators “have the same operational controls in the form of a code-
required disconnect.” ThyssenKrupp cites to what appear to be certain industry
standards, and later provides a citation to “2 AR 40” to support this proposition. The
21
referenced portion of the record is to a report by Karosas, with no pinpoint citation
provided. Although it in part asserts that there are uniform standards “so that the
procedural steps to de-energize are similar for that class or group of machinery,” the
Board was not required to accept that this meant ThyssenKrupp’s generic elevator
procedures applied equally to escalators. Indeed, Brandley himself testified escalators
and elevators were “two different types of equipment” with different methods of
installation and with different mechanisms, with the possibility of disconnects in different
locations.
Because it was ThyssenKrupp’s burden to show that its lockout procedures
manual--facially applicable only to elevators--also applied to escalators, it was incumbent
on ThyssenKrupp to produce evidence showing that the control systems for both types of
machines were the same, or at least materially similar. Putting aside the fact that the
Board was free to reject evidence, even if uncontradicted (see Hicks v. Reis (1943) 21
Cal. 2d 654, 659-660), given ThyssenKrupp’s failure to cite evidence in the record
establishing that all escalators and elevators have similar controls, we cannot say the
Board erred in finding ThyssenKrupp did not provide its employees with an adequate
lockout manual.
We therefore agree with the Board that the record does not compel a finding that
ThyssenKrupp carried its burden to demonstrate that either exception to general safety
regulation applies to the machinery at issue in this case.5
5 Contrary to an implication in ThyssenKrupp’s briefing, this does not compel a separate
manual for every make, model, and installation, of every escalator. If there are groups of
similar escalators, or if all escalators are configured similarly, a single procedure could be
drafted to apply to each group or to all escalators. Or, as ThyssenKrupp asserts, if all
escalators are similar to all elevators, that could be explained in its manual.
22
IV
Preventing Machine Movement
Count 2 cited ThyssenKrupp for an alleged violation of the following regulation:
“Machinery or equipment capable of movement shall be stopped and the
power source de-energized or disengaged, and, if necessary, the moveable parts
shall be mechanically blocked or locked out to prevent inadvertent movement, or
release of stored energy during cleaning, servicing and adjusting operations.
Accident prevention signs or tags or both shall be placed on the controls of the
power source of the machinery or equipment.” (§ 3314, subd. (c), italics added.)
Subdivision (1) of that regulation provides:
“If the machinery or equipment must be capable of movement during this
period in order to perform the specific task, the employer shall minimize the
hazard by providing and requiring the use of extension tools (eg., extended swabs,
brushes, scrapers) or other methods or means to protect employees from injury due
to such movement. Employees shall be made familiar with the safe use and
maintenance of such tools, methods or means, by thorough training.”
The citation alleged that a ThyssenKrupp employee “was cleaning, repairing, and
servicing an escalator . . . that was capable of movement. The escalator was not stopped
and the power source not de-energized or disengaged and, if necessary, the moveable
parts were not mechanically blocked or locked out to prevent inadvertent movement
resulting in the employee sustaining a serious injury.”6
The Board found: “Even assuming the movement of the escalator . . . was
intentional and necessary, there was no evidence that [ThyssenKrupp] provided extension
tools or other means to protect its employees. Further, despite the training claims
[ThyssenKrupp] made, the injured employee was position above the gap created by the
removed step, rather than below it, as was the appropriate practice.” “The evidence did
not provide sufficient detail about [ThyssenKrupp’s] training . . . to conclude that such
6 As ThyssenKrupp points out, although Weiss mentioned a lack of tags, such lack was
not included in the citation, and is not relevant.
23
training amounted to ‘other method or means to protect employees from injury.’ And
even if the injured employee had been trained about where to stand in relation to the gap
created by the removed stair, he did not heed that training.” However, in another section
of the Board’s decision, addressing count 3, the Board found “the escalator was operating
at the time of the injury, and was set in motion deliberately.” (Italics added.)
On appeal, ThyssenKrupp contends the record shows that at the time of the
accident, the escalator was incapable of inadvertent movement and had “no stored
energy,” therefore this regulation was not violated. ThyssenKrupp also contends that its
employees had “other methods or means” (§ 3314, subd. (c)(1)) to ensure they were
protected, and this fact, too, negates the citation. We agree with both points.
The regulation requires procedures “to prevent inadvertent movement” of
machinery. (§ 3314, subd. (c).) However, as the Board conceded at one point, no
inadvertent movement occurred. The men had only one key that would fit this escalator.
They used a stop switch to disconnect the power when necessary, and used the key switch
to re-energize the escalator when appropriate, as repairs were made to the drive train.
There is no evidence that at any time the escalator moved inadvertently that day.
At the moment of the accident, Moore was safely on the upper landing of the
escalator. Harrell, however, apparently had one foot on the top step of the escalator,
evidently a step above the “gap” caused by the removed step. Harrell then used the key
with the explicit intention to re-energize the escalator, despite the fact that both of his feet
were not safely on the landing. One foot was instead on the top step of the escalator.
This foot went into the gap once he intentionally re-started the escalator.
We reject CalOSHA’s argument that the regulation would apply even in the
absence of inadvertent movement. CalOSHA’s reasoning is as follows:
24
“While Appellant’s opening brief focuses on the words ‘inadvertent
movement, or release of stored energy,’ Appellant’s analysis fails to recognize that
those words apply only to the second phrase of Section 3314(c)’s mandate, which
requires moveable parts to be ‘mechanically blocked or locked’ if necessary to
prevent inadvertent movement. The first phrase of Section 3314(c) – which
requires that ‘machinery and equipment capable of movement shall be stopped and
the power source de-energized or disengaged’ – is still applicable to prevent the
movement of equipment during servicing, regardless of whether such movement
was intentional or inadvertent. Indeed, Section 3314(c)(1), which Appellant relies
upon here as an affirmative defense to Section 3314(c), contemplates situations
where Employers must provide other methods to protect employees when
machinery must be moving during servicing.”
As to CalOSHA’s first interpretive point, the regulation speaks for itself:
“Machinery or equipment capable of movement shall be stopped and the power source
de-energized or disengaged, and, if necessary, the moveable parts shall be mechanically
blocked or locked out to prevent inadvertent movement, or release of stored energy
during cleaning, servicing and adjusting operations.” (§ 3314, subd. (c).) The point is to
prevent inadvertent movement that may harm employees. Movement that an employee
intends, either because it is necessary to complete or assess the efficacy of repairs, or
because the employee has made an error of judgment, is not implicated. As for
CalOSHA’s point that movement is contemplated in the exception, section 3314,
subdivision (c)(1), we fail to see how that alters the regulation itself, which covers
unwanted movement. And as ThyssenKrupp replies, an employer cannot violate an
exception; it can only fail to satisfy it.
Further, as for the exception to the regulation, the Board dismissed
ThyssenKrupp’s training because Harrell acted contrary to that training. The Board
found “despite the training claims [ThyssenKrupp] made, the injured employee was
position above the gap created by the removed step, rather than below it, as was the
appropriate practice” and found “even if the injured employee had been trained about
where to stand in relation to the gap created by the removed stair, he did not heed that
25
training.” This finding--which posits that an employee’s violation of safety rules he was
taught necessarily shows the training is inadequate--is not supported by the record.
The exception to the cited rule provides that if machinery must be moving for an
employee to complete work, “the employer shall minimize the hazard by providing and
requiring the use of extension tools (eg., extended swabs, brushes, scrapers) or other
methods or means to protect employees from injury due to such movement. Employees
shall be made familiar with the safe use and maintenance of such tools, methods or
means, by thorough training.” (§ 3314, subd. (c)(1), italics added.) ThyssenKrupp
persuasively contends the evidence shows it provided adequate “other methods or means”
to “minimize”--not to guarantee--the safety of its workers.
CalOSHA’s own witness, Weiss, conceded ThyssenKrupp had not been faulted for
any failure of training on lockout/tagout procedures. ThyssenKrupp witnesses
consistently described ThyssenKrupp’s training, and ThyssenKrupp’s written escalator
safety manual (Exhibit E) clearly stated that a gap should be kept in front of a worker,
and that a worker should not be on the escalator when it is started. Harrell testified he
had been trained on that rule and considered it common sense. He testified the purpose
of this rule was to keep the gap in front to see where it is going, so “you’re not slipping in
the hole that’s behind you.” Harrell did not keep the gap in front of him and did, in fact,
slip. He admitted that if indeed his foot was on an escalator step, instead of the landing,
he violated ThyssenKrupp’s safety rules. Moore testified he rides a minimum two steps
behind an escalator gap, and had been trained on the rules against standing on an
escalator when it is starting, and the need to ride below an open step. Nicholson testified
Harrell evidently violated ThyssenKrupp’s safety rules and should have been standing on
the landing; further, he should have kept the escalator gap in front of himself, not
26
behind.7 Karosas concluded Harrell placed one foot on the top step, not on the landing,
when he activated the escalator. Brandley testified there was no reason for Harrell to
have his foot on the top step before starting the escalator. Brandley had presented a
safety class that Harrell had attended, covering rules about riding behind an opening. In
his view, Harrell violated company policy both by having his foot in an unsafe place and
not having the gap in front of him. Nor did Harrell contest the formal discipline he was
given for violating safety policies. Finally, Brandley testified that on the day of the
accident Harrell admitted “I screwed up, Rob. I’m sorry.”
None of this evidence was contradicted by any of CalOSHA’s evidence. Although
the Board was not required to credit any particular witness, it is our duty to review the
entire record, in context, to see if credible, solid evidence supports the Board’s finding.
Given (1) the lack of any evidence that ThyssenKrupp’s safety training was inadequate;
(2) the clear directives in ThyssenKrupp’s written safety manual not to start an escalator
with a person on it and to ride with a gap in front of a worker; (3) the fact that both
workers on the jobsite understood the rule; and (4) the clear evidence that Harrell violated
ThyssenKrupp’s rules, we cannot say the record shows substantial evidence to support
the Board’s finding.
As indicated above, the Board’s reasoning was that because Harrell violated
procedures, he was not property trained, but we disagree with this logic. The mere fact
an employee violates a safety rule does not mean the rule is inadequate or that the
employee was not properly trained on the rule. In this case, the evidence showed Harrell
knew and understood the rule, and simply had a momentary lapse of reason. No amount
of training can preclude such a lapse. (See, e.g., In re Tri-Valley Growers (Cal. OSHA,
Aug. 15, 1990, No. 89-R2D5-173) CA OSHA App.Bd. Lexis 14 [reversing ALJ finding
7 Nicholson did testify he would have started the escalator from the bottom, not the top,
but did not testify that was necessary, only that it was a “personal preference.”
27
of a section 3314 violation where the employee was experienced and properly trained in
use of extension tools and had even been reprimanded for violating safety rules]; In re
Contadina Foods, Inc. (Cal. OSHA, Nov. 30, 1978, No. 77-R2D5-977) CA OSHA
App.Bd. Lexis 17 [somewhat similar facts, the “action of the injured employee was an
unforeseeable act”].)
CalOSHA and the Board also suggest that because of the lockout violation shown
in count 1, ThyssenKrupp could not establish adequate training as to count 2. This
bootstrapping of one violation into two is not persuasive, as each addresses different
points and involves different elements, as we have explained above.
CalOSHA also contends the employees could have replaced the step before
running the escalator, as Weiss at one point suggested. However, while this was possible,
Weiss had no experience in escalator repair, and the evidence and common sense shows
this was not feasible. Fixing the tension required repeatedly making adjustments and
running the escalator to see if the problem was resolved. Having to reinstall the step
would require removing the step and repositioning the gap to the proper point each time,
a burdensome and unnecessary process, given the rules and training the men received.
Accordingly, both because there was no inadvertent movement of the escalator,
only an unintended and very unfortunate consequence to its intended movement, and
because CalOSHA provided no substantial evidence that ThyssenKrupp should have
done more to minimize risk, no substantial evidence supports count 2. The citation
alleging a violation of section 3314, subd. (c) must be dismissed.
V
Removal of Guards
Count 3 cited ThyssenKrupp for violating section 4002, subd. (a), which provides
as follows:
28
“All machines, parts of machines, or component parts of machines which
create hazardous revolving, reciprocating, running, shearing, punching, pressing,
squeezing, drawing, cutting, rolling, mixing or similar action, including pinch
points and shear points, not guarded by the frame of the machine(s) or by location,
shall be guarded.”
ThyssenKrupp contends section 4002, subd. (a) applies to the ordinary condition
of machinery, not machinery that is partly dismantled while in the process of
maintenance and repair, and points out that section 4002 appears in a different part of the
regulations than section 3314. The Board rejected this view because it “ignores the point
that the escalator was operating at the time of the injury, and was set in motion
deliberately.” The trial court agreed with this view. We do not.
As a matter of common sense, a mechanic often must disassemble parts of a
machine to replace a defective component or access an area in need of maintenance. This
may require the mechanic to remove protective guards precisely because those guards
block a person from touching moving parts that may need replacement, adjustment,
lubrication, and so forth. To interpret the section as penalizing the removal of protective
guards other than when the machines are operating normally would make repairs and
maintenance of many machines impossible or impracticable.
Instead, the mechanic is protected by other provisions when working on partly
disassembled machinery. This includes section 3314, subd. (c)(1), which, as discussed in
Part III, ante, requires that the hazard of necessary movement during repairs shall be
minimized “by providing and requiring the use of extension tools (eg., extended swabs,
brushes, scrapers) or other methods or means to protect employees from injury due to
such movement.” There is also a regulation requiring lubrication points to be guarded
when lubrication must be performed during operation of the machinery. (§ 3945.)8 This
rule, too, recognizes that some repairs must be made when the machine is operating.
8In full, that section provides: “(a) Where lubrication must be performed while the
machine is operating, openings with hinged or sliding covers shall be provided. [¶] (b)
29
These two provisions (i.e., §§ 3314, subd. (c)(1) & 3945) implement the common-
sense view that sometimes a machine must be in use while it is being worked on, and
these provisions explain how an employer must ensure worker safety in such
circumstances.
Further, as ThyssenKrupp notes, section 3314 occurs in “Group 2” of Subchapter
7 of Chapter 4 of Division 1 of Title 8 of the regulations, entitled “Safe Practices and
Personal Protection,” specifically, in Article 7, entitled “Miscellaneous Safe Practices.”
But section 4002 is found in “Group 6” of Subchapter 7, entitled “Power Transmission
Equipment, Prime Movers, Machines and Machine Parts,” specifically, in Article 41,
entitled “Prime Movers and Machinery.” It seems logical that by their location in
different groups within Subchapter 7 (entitled “General Industry Safety Orders”), these
regulations were designed to address different subject matters.
The Board‘s interpretation of section 4002, subd. (a)--carried to its extreme--
would require all machines to be made so that they could be repaired or maintained
without needing any protective parts to be removed. If that were the case, sections 3314
and 3945 would be superfluous. Instead, as ThyssenKrupp maintains, section 4002,
subd. (a) means protective parts (guards) cannot be removed during ordinary operation of
machinery, not that they cannot be removed during periods of repair, adjustment, or
necessary maintenance.
We observe that, as adopted in 1974, section 4002 provided: “ ‘Hazardous
revolving or reciprocating parts in any machine not guarded by the frame of the machine
or by location shall be guarded.’ ” (Garcia v. Becker Bros. Steel Co. (2011) 194
Where machines or machine parts must be lubricated while in motion the lubricant
fittings shall be located at least 12 inches from the dangerous moving parts unless such
parts are guarded and the fittings are piped outside the guard. [¶] (c) Transmission
equipment, machines and machine parts in inaccessible locations, which are lubricated
while they are in motion shall be equipped with extension lubricant fittings or other
methods of lubrication which can be serviced from an accessible location.” (§ 3945.)
30
Cal. App. 4th 474, 477, fn. 2.) Plainly, this refers to the basic structure of the equipment,
not to equipment partly dismantled for repairs or servicing. That language was expanded
into what is now section 4002, subd. (a), quoted above, in 1982. (Id. at p. 478, fn. 4.)
We find no indication in the longer, current version of the regulation that a broader reach
was intended, that is, that the section was intended to do other than address the danger of
moving equipment parts in ordinary usage, not during repairs. “It is clear from a reading
of the section that its intent is general in nature, i.e., there is a concern for protection
against ‘hazardous revolving or reciprocating parts.’ ” (In re Star-Kist Foods, Inc. (Cal.
OSHA, Feb. 17, 1977, Nos. 75-R4D3-795-801, 829) CA OSHA App.Bd. Lexis 53; see In
re A. Teichert & Son, Inc. (Cal. OSHA, Oct. 6, 2011, Nos. 04-R5D1-0850, 0851) CA
OSHA App.Bd. Lexis 164 [“Here, the hazard addressed by (section 4002(a)) is injury to
employees who come in to contact with non-point-of-operation movement hazards of a
machine”].)9
We find further support for our view in two of the Board’s prior decisions.
In one case, the Board rejected liability under section 4002, subd. (a) because “the
evidence failed to establish that any employee of Delco-Remy was ever likely to be
exposed to the allegedly hazardous operation. Uncontradicted testimony was offered that
the only time employees of Delco-Remy would be exposed to the machines in question
was when a malfunction had occurred. In such an instance, the operation of the
machines was stopped, thereby effectively preventing any exposure to the allegedly
9 For example, in Perez v. VAS S.p.A (2010) 188 Cal. App. 4th 658, an injured worker’s
theory of liability against a manufacturer was that it designed a machine with an
unguarded “pinch point” or “nip point” consisting of two rollers, into which the worker’s
hand was caught, and that such lack of a guard was negligence per se because it violated
section 4002, subd. (a); indeed, CalOSHA had cited the employer under that section. (Id.
at pp. 663-664, 669.) In other words, the tort theory was that during normal operation,
the machine created a hazard to the employee. However, on the facts of that case, the
appellate court upheld the trial court’s finding that the employer’s failure to train the
employee was a superseding cause of the employee’s injury. (Id. at pp. 682-685.)
31
hazardous reciprocating parts.” (In re Delco-Remy Div. of General Motors Corp. (Cal.
OSHA, Dec. 1, 1977, Nos. 75-R5D2-110, 544, 545) CA OSHA App.Bd. Lexis 23, italics
added.) In other words, the workers in that case were exposed to harm only while
addressing a malfunction, during which time the protections of section 3314 applied to
ensure safety.
In contrast, in a case where fan blades in an engine compartment were not guarded
at all, but were accessible during anticipated use by workers, the workers had no
protections from the moving blades, even though they had not removed any protective
part. In such circumstances, the Board reversed an ALJ ruling dismissing a section 4002,
subd. (a) citation, as follows: “The injured employee was assigned to repair the starter
mechanism on the crane. Reaching in to the engine compartment to start the motor was
part of the assigned work. No guard surrounded the fan portion of the machinery so as
to prevent inadvertent contact of an employee’s hand. The starter override mechanism
was located inside the engine compartment, and its use necessarily brought anyone using
it in to the zone of danger of the unguarded fan.” (In re C.A. Rasmussen, Inc. (Cal.
OSHA, July 19, 2012, No. 08-R4D5-0219, 0220) CA OSHA App.Bd. Lexis 74, italics
added.)
Here, in contrast, the danger of moving parts was avoidable by proper application
of lockout/tagout requirements, and by training as to where the employees should stand
with respect to the removed step. This was not a case where the machinery was
inherently dangerous for lack of guards during normal operation.10
10 ThyssenKrupp contends--and the Board at one point concedes--that there is no
evidence a device exists that could have guarded the moving parts during the repairs.
Indeed, the Board’s decision accepted the view that there was no way to guard the gap,
although it purported to limit this finding to “penalty correction.” We fail to see how a
fact can be true for one purpose but not another. On appeal the Board--though not
CalOSHA-- points to testimony that a clear step might be used. But Weiss had no
experience in escalator repair, and did not know whether any such clear step existed.
32
In short, we agree with ThyssenKrupp that no violation of section 4002 was
proven, and therefore count 3 must be dismissed.
DISPOSITION
The judgment is reversed and remanded with directions to the trial court to prepare
a new judgment partly granting ThyssenKrupp’s petition, consistent with this opinion.
The parties shall bear their own costs on appeal. (See Cal. Rules of Court, rule
8.278(a)(3).)
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Murray, J.
Nicholson testified that if a clear step were used, it would have to be exactly the size and
shape of the removed step, he did not testify such a step existed. As we said in a prior
case: “Where an expert bases his conclusion upon assumptions which are not supported
by the record, upon matters which are not reasonably relied upon by other experts, or
upon factors which are speculative, remote or conjectural, then his conclusion has no
evidentiary value.” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal. App. 3d
1113, 1135.) The speculations about a clear step are not solid, credible evidence. In any
event, we find section 4000, subd. (a) does not apply during mechanical repairs.
33