2-1 OSHRC Decision Restores LOTO Serious Citation

An administrative law judge had ruled three years ago that OSHA failed to prove that Spirit AeroSystems, Inc., had violated the lockout/tagout general industry standard.

The Occupational Safety and Health Review Commission issued a 2-1 decision Dec. 24 that kept alive an OSHA serious citation against Spirit AeroSystems, Inc., in connection with a March 2010 fatality at the company's Tulsa facility. The victim was an experienced mechanic working alone, and the citation alleged Spirit had violated OSHA's lockout/tagout general industry standard, specifically 29 CFR 1910.147(c)(4)(i).

Both parties stipulated that he died while replacing a leaky air valve on a diesel tractor. The mechanic tried to start the tractor after completing the replacement, but it would not start because its transmission selector was in the "drive" position. The mechanic "retrieved a battery jump box and presumably continued to try to start the tractor's motor," according to the decision by Administrative Law Judge Patrick B. Augustine when he ruled for the company in November 2011 and vacated the citation, finding that the Labor Department had not proved that Spirit violated the standard. The decision says the mechanic then "circumvented the starter safety switches by placing a pry bar across the terminals on the starter relay to short-circuit the starter system and start the engine." This started the tractor's engine, causing it to move forward despite wheel chocks and rear axle spring brakes that had been set. The mechanic was standing on the ground to the front and inside the driver's side front wheel of the tractor, within the engine compartment, and he was struck and dragged by the moving vehicle, which finally stopped when it hit a parked car after traveling about 290 feet.

The only witness for DOL at the trial was Compliance Safety and Health Office Evette McCready, who conducted the fatality investigation. "Upon review, CSHO McCready concluded that the [Spirit LOTO] program was deficient because it did not specifically address the energy isolation procedures for the Sterling semi-tractor which was involved in the fatal accident," according to Augustine's decision. "However, at trial, CSHO McCready acknowledged that Respondent's Lockout/Tagout Program plainly states, with regard to servicing and maintenance, that specific vehicle maintenance manuals are incorporated into the program and should be referenced by employees. In addition, CSHO McCready testified that Nick Nichols, Respondent's Maintenance Manager, told her during his investigative interview that Respondent's garage mechanics had specific vehicle maintenance manuals available to them. Despite obtaining these two pieces of information during her investigation, CSHO McCready never reviewed Respondent's maintenance manual for the Sterling semi-tractor involved in the accident. Therefore, she did not know whether the maintenance manual contained adequate energy isolation procedures for the type of work being performed by [the mechanic] at the time of the accident or other work performed by Respondent's garage employees. She simply never asked for it, never reviewed it, and did not know what was in it, even by the time of the trial."

The Dec. 24 majority opinion by OSHRC Chairman Thomasina V. Rogers and Commissioner Cynthia L. Attwood held that OSHA had presented a prima facie case that Spirit violated the standard, and it vacated Augustine's decision, restored the citation, and remanded the case to him. Commissioner Heather L. MacDougall dissented.

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