Or. Occupational Safety & Health Div. v. United Parcel Serv., Inc.

• Decision Date: 16 June 2021
• Docket Number: A168084
• Citation: 494 P.3d 959,312 Or.App. 424
• Parties: OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner, v. UNITED PARCEL SERVICE, INC., Respondent.
• Court: Oregon Court of Appeals

312 Or.App. 424

494 P.3d 959

OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner,

v.UNITED PARCEL SERVICE, INC., Respondent.

A168084

Court of Appeals of Oregon.

Argued and submitted May 21, 2019.

June 16, 2021

Robert M. Wilsey, Assistant Attorney General, argued the cause for petitioner. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Raymond Perez, Georgia, April Upchurch Fredrickson, and Jackson Lewis P.C. filed the brief for respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Linder, Senior Judge.^*

LINDER, S. J.

The Oregon Occupational Safety & Health Division (OR-OSHA) cited United Parcel Service (UPS) for a violation of 29 CFR § 1910.219(c)(4)(i), a federal workplace safety rule that OR-OSHA has adopted by reference. The rule provides that an unguarded "projecting shaft end" of a power-transmission apparatus (e.g. , a conveyor) may not project more than one-half the diameter of the shaft. UPS requested a contested case hearing to challenge the citation. An administrative law judge (ALJ) vacated the citation on two grounds: first, that OR-OSHA's method of measuring projecting shaft ends is inconsistent with the rule's plain text; and second, that OR-OSHA failed to prove the knowledge element of a violation because UPS neither knew nor with reasonable diligence could have known of OR-OSHA's measurement method. OR-OSHA seeks review, assigning error to both grounds for the ALJ's decision.¹ We agree with OR-OSHA on both issues, and we reverse and remand.

I. BACKGROUND

The facts pertinent to our review are not disputed.² UPS is a package delivery company with facilities throughout the United States, including Oregon. On August 20, 2015, an OR-OSHA compliance officer, Walker, conducted a safety inspection of a UPS delivery terminal in Albany.³ During the inspection, Walker noticed, adjacent to a walkway, the end of a shaft that drives a belt on a packing sorting conveyor. The shaft end projected from the conveyor after passing through a fixed bearing bolted to the conveyor's side. Immediately beyond that stationary bearing, a collar was attached to the shaft, which prevented side-to-side (i.e. , axial) movement of the shaft and rotated with the shaft. The shaft then extended a short distance beyond the attached collar. None of the shaft end, from where it protruded from the conveyor to where it terminated, including the collar, was guarded by a nonrotating cap or safety sleeve.

The shaft end appeared to Walker to project out from the conveyor more than one-half the shaft's diameter. To confirm his visual assessment, Walker measured the shaft. Its diameter was 1 7/8 inches (1.625 inches), making half of the diameter equal to 15/16 of an inch (0.9375 inch). From the end of the shaft to where it entered the conveyor through the stationary bearing was 1 7/8 inches (1.625 inches), which exceeded one-half of the shaft's diameter. So measured, the shaft end did not comply with 29 CFR § 1910.219(c)(4)(i).

Both the UPS site manager and the UPS safety compliance officer for the Albany facility questioned the way that Walker measured the shaft end's projecting length. UPS personnel are trained to determine compliance with 29 CFR § 1910.219(c)(4)(i) by measuring from the end of a shaft back to any collar attached to it, rather than to the nearest stationary surface. Walker disagreed that the shaft end should be measured that way. Walker had been field-trained by a senior compliance officer to measure from the end of the shaft back to the nearest stationary surface. During his 10 years working as a compliance officer, Walker estimated that he had issued 10 violation citations based on that measurement method. Even so, after UPS personnel questioned Walker's measurement, Walker remeasured the shaft end as UPS insisted—that is, from the end of the shaft to where the collar was attached to it, instead of farther back to the stationary bearing. So measured, the projecting length of the shaft end was 7/8 of an inch (0.875 inch), which was less than one-half the diameter of the shaft, and therefore, would have complied with the rule.

Walker consulted with OR-OSHA technical staff by phone before completing his on-site investigation, as well as in OR-OSHA's offices in the days following the inspection. Those consultations confirmed that, under OR-OSHA's method for measuring projecting shaft ends, the shaft end on the UPS conveyor was not in compliance with 29 CFR § 1910.219(c)(4)(i).⁴ OR-OSHA cited UPS for a serious violation of the rule. The citation proposed a penalty of $210 and ordered UPS to abate the hazard. UPS had a tooling company reduce the length of the shaft end so that it complied with OR-OSHA's determination of the maximum distance that it could project if left unguarded.

UPS also requested a contested case hearing before an ALJ to challenge OR-OSHA's citation. At the hearing, Snapp, a policy analyst for OR-OSHA, explained how OR-OSHA interprets and applies 29 CFR § 1910.219(c)(4)(i) when measuring a shaft end that has a collar attached to it.⁵ Snapp testified that OR-OSHA's policy for that circumstance has been in place since at least 2014, when, at an OR-OSHA "Safety and Health Policy Group" meeting, top-level OR-OSHA officials discussed and resolved several policy questions. One of them was whether, for "mechanical power-transmission" machinery, "the length of a protruding shaft end include[s] the portion under the collar[.]" Snapp could not say why the question came to the policy group in 2014; it could have been, among other possibilities, because an employer or internal staff requested guidance. Whatever the impetus for the question, the minutes of the meeting documented the group's answer:

"When measuring the projecting distance of an unguarded shaft, include the portion of shaft that passes through a collar that rotates with the shaft. Measure from the end of the shaft back to the closest stationary enclosure that the shaft passes through."

In 2016, Snapp was asked to prepare a "technical guidance" document based on the measurement method memorialized in the 2014 minutes. Technical guidance documents provide internal guidance for staff, but OR-OSHA considers them "important enough" that it publishes them on its website so that the information is available to the general public. Snapp explained that, in preparing technical guidance on safety requirements, OR-OSHA takes into consideration any relevant interpretation letters or other guidance issued by OR-OSHA's federal counterpart agency, the federal Occupational Safety and Health Administration (federal OSHA). OR-OSHA does not consider federal interpretations binding, however, because OR-OSHA is a state agency that determines for itself what workplace safety rules to adopt. In all events, federal OSHA has not issued any relevant guidance on 29 CFR § 1910.219(c)(4)(i), which Snapp confirmed before the contested case hearing. Snapp explained further that federal OSHA was not the source of 29 CFR § 1910.219(c)(4)(i). Instead, the text of that and other federal OSHA rules originated in voluntary consensus standards established by the American National Standards Institute (ANSI), which dated back to the mid-1950s.⁶ Snapp could not say why ANSI had selected one-half the diameter of the shaft as the mathematical formula for how far a shaft end could project; the ANSI standard is now more strict.⁷

But Snapp speculated that the 1950s formula arose out of a "negotiated consensus" to keep the shaft end as short as possible while still allowing a collar to be attached to it.

In the 2016 technical guidance document that Snapp prepared, he adhered to the measurement memorialized in the 2014 minutes, using the following question and answer format:

"Question: When measuring a protruding mechanical power-transmission shaft, is the portion located under the collar included?

"Answer: Yes. When measuring the projecting length of an unguarded shaft, include the portion of the shaft that passes through a collar that rotates with the shaft. Measure from the end of the shaft back to the closest stationary enclosure the shaft passes through."

Snapp also set out an illustration of how to measure a shaft end with a collar attached to it, which was essentially identical to one that the 2014 policy group minutes had included:

After Snapp prepared that technical guidance document, it was posted to OR-OSHA's website.

Snapp, who has a degree in occupational safety and health, testified why OR-OSHA uses that measurement method under 29 CFR § 1910.219(c)(4)(i) for shaft ends with an attached collar. He explained that a projecting shaft end on a piece of machinery is a hazard only when the shaft is rotating. The particular safety risk that a rotating shaft creates is an "entanglement hazard," one that can result in serious and fatal physical injuries:

"If you get your hair, your clothing, or something similar entrapped in a rotating shaft, once it starts, it's not going to be a minor abrasion as a result, it's not going to be a skinning or a slight bruise[.] [G]enerally the most serious hazard is your body attempts to conform with the shaft as it rotates around, which results in broken bones, torn ligaments, [and] ripped flesh[.] [T]hese machines are extremely powerful, they have very high-end torque, and they will not even sense a human being * * * entrapped[.] [The shaft] will continue to wrap around and around and around with a person going around and around and around with it until either the part of the body that is attached has been torn off, such as a scalping, or the clothing or the equipment that has been wrapped in [it] has torn away[.] [The] compressional factors of clothing being ripped away from your body can create injuries to the flesh and bones on your back even though the shaft is wrapped in front of you[.]"

Snapp observed that the rule, in referring to a "projecting" shaft end, textually contemplated a shaft that...