Tractor-Mounted Personnel Platforms: Navigating the DOSH Variance Process

Joel Sherman, Grimmway Farms Jason Resnick, Esq., Western Growers

Who is Grimmway?

Grimmway Farms • Grower, packer, shipper of carrots and

organic vegetables • 7,500+ employees/contract employees • 38 locations (4 states, 12 counties) • 9 production facilities • Self-insured (not self-administered) • Non-union

What’s the Problem?

Personnel Transport Unit (PTP)

A Little Background

• Irrigators lay/remove approximately 5 miles of pipe per day (880 joints weighing 27 lbs each)

• Work in crews of 3 (one tractor driver and two pipe crew)

• Handling 5 miles of pipe requires 10 miles of walking • Use of PTP reduces walking by 50%

The Job

A Little More Background Personnel Transport

Platforms (PTPs) • In use in agriculture in for

approximately 25 years • No recorded injuries

involving the specific design employed by Grimmway (in use since at least 1995)

• No known incidents or “close calls”

Scope of the Problem (Grimmway)

• 80+ PTP units in use throughout California • 350+ exposed employees • 50,000+ acres of irrigated farmland • 15,000+ miles of pipe handled annually • Estimated 2.5 million man hours of usage

since 1995 without injury or incident • Usage qualifies as a “combined operation”

for air resources board purposes

Still More Background

PTP Features • Attached to the 3-point hitch of the tractor • Fully enclosed passenger compartment • Equipped with seat belts, SMV signs,

safety chains, padded seats • Administrative controls include 3-5 mph

speed limit, 10 foot clearance, grade not to exceed 5%, not to be used on public roads

What’s the Violation?

GISO §3441 (a)(2)(B) (a) Operating Instructions and Safe Work Practices. (2) Agricultural equipment shall be operated in

accordance with the following safe work practices and operating rules:

(B) Permit no riders on agricultural equipment other than persons required for instruction or assistance in machine operation;

Regulatory Options

• Stop using the platforms (thus forcing employees to walk 10 miles per day in temps exceeding 100°F)

• File a petition to “adopt, amend or repeal” the standard (industry solution)

• File for a variance from an existing standard (company solution) – Experimental/Temporary (Cal/OSHA) – Permanent (Standards Board)

The Grimmway Approach

• Filed for an experimental variance (from Cal/OSHA) and a permanent variance (from the Standards Board) simultaneously

• Requested a “stay” on the Standards Board hearing after we were issued the experimental variance by Cal/OSHA

• Requested and received two six month extensions of the experimental variance prior to Standards Board hearing (2 years total)

Experimental Variance

• Requested in letter form to the Chief of Cal/OSHA (9/27/11)

• Letter detailed specific safety order in question and current procedures to assure safety of employees

• Included training documents, fabrication drawings, photos, operating procedures, etc.

Cal/OSHA Response

• Request for documents (13 specific items) • Field evaluation • Draft variance conditions • Final draft issued by DIR Director • Final variance conditions

• Experimental Variance issued 5/4/12 • 6 pages of conditions • Monthly field inspections by Cal/OSHA at various

locations • Required monthly data collection

Permanent Variance

• Filed with Standards Board using “Application For Permanent Variance Form” (obtained from Standards Board website)

• Unlike experimental variance, must follow form and submit all required elements

• Must address provision of safety “equal to or superior to” that created by existing safety order

Question: What is most common permanent variance petition?

The Conundrum: Equivalent Safety

Equivalent safety is difficult to define & achieve: • Equivalent to which exposure?

– Heat stress – Methods of employee transportation – Riding on or not riding on a tractor

• Equivalent methods of control? – Engineering – Procedural – Administrative – PPE

Standards Board Response

• Field evaluation • Document request • Report to the Standards Board

– Recommended issuance of permanent variance with operational/procedural conditions

• Hearing date calendared (but stayed until sufficient data obtained from experimental variance)

The Hearing

• Hearing held at Standards Board in Sacramento

• Evidence presented to two sitting members of the Standards Board

• Hearing presided over by hearing officer • Subject to terms similar to any hearing for

issues associated with administrative law • Incumbent on petitioner to prove the case

for equivalent safety

The Cast of Characters The Parties: • Petitioner

(Applicant) • Division

Representative (Cal/OSHA)

• Board Staff • Interested Parties

– Intervenor

The Process

• Petitioner presents his/her case to the panel members

• Division representative presents its position in regards to the proposed method for achieving equivalent safety

• Board staff presents his/her evaluation and recommendation

• Interested parties have the opportunity to question or cross examine any of the above

The Decision

• Once the hearing officer determines that all questions have been answered and evidence submitted the record is closed

• Hearing Officer will prepare a proposed written decision on behalf of the panel and send it to all parties

• Full board will vote on proposed decision at the next regularly scheduled meeting of the Standards Board

Appeal Process

• May appeal the Board’s decision within 20 days after decision has been served on all parties of record

• Petition must be based on one of the following: • The standards board acted without or in excess of its power. • The decision is not supported by substantial evidence. • The decision is contrary to law.

• Rehearing may or may not be granted • Failing at rehearing, petitioner may appeal to

Superior Court (Writ of Mandamus)

The Grimmway Hearing

• Initial hearing slated for June of 2013 – After 4 hours of testimony one panel member

withdrew due to a “conflict of interest” • Hearing rescheduled for January 27, 2014

– Hearing went from 10:00 am to 3:30 pm – Included testimony from:

• Grimmway • Cal/OSHA • Engineers from Cal Poly & University of Nebraska • Standards Board Engineer

Specific Issues

• Notice requirements • Equivalent safety • Field usage versus road usage • Alternative methods • Labor contractor employees

– “Employer” definitions per L.C. §6400

• Intervenor opposition

The Results

• Received permanent variance for use in the furrowed fields

• Prevailed on all other issues except: – Request for variance for use on private farm

roads “dismissed without prejudice” • Indicated that we may approach the Board for

another hearing on farm road usage after further studies to clearly establish “equivalent safety”

• So…back to the drawing board!

One Final Thought…

Questions?

Thank you!

Joel H. Sherman Director, Safety & Workers' Compensation

Grimmway Farms (661) 363-4732

jsherman@grimmway.com

Jason Resnick, Esq. Vice President and General Counsel

Western Growers (949) 885-2253

jresnick@wga.com

STATE OF CALIFORNIA EDMUND G. BROWN, JR. Governor DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF OCCUPATIONAL SAFETY AND HEALTH 1515 CLAY STREET, SUITE 1901 OAKLAND, CA 94612 (510) 286-7000 FAX: (510) 286-7037

ADDRESS REPLY TO: PO BOX 420603 SAN FRANCISCO 94142-0603

May 4, 2012 Joel Sherman Grimmway Farms P.O, Box 81498 Bakersfield CA 93380-1498 Dear Mr. Sherman This letter provides official notification of the Director’s approval of an experiment to demonstrate and validate new techniques to safeguard the health and safety of workers. This experiment was proposed by Grimmway Farms in a letter dated September 27, 2011 addressed to Ellen Widess, regarding a means to reduce heat illness and fatigue by providing transport platforms attached to tractors for employees who lay or remove irrigation pipe in furrowed fields containing row crops. This letter also provides notice that the Division has granted a temporary variance to Grimmway Farms, in accordance with the Division’s authority under Labor Code Section 6452, which states, “The division is authorized to grant a temporary variance from any standard or portion thereof whenever it determines such variance is necessary to permit an employer to participate in an experiment approved by the director designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.” This variance affects only the application of Title 8, California Code of Regulation, Section 3441(a)(2)(B), which states that the employer shall “Permit no riders on agricultural equipment other than persons required for instruction or assistance in machine operation.” Failure to comply with the terms of this variance shall result in enforcement of Section 3441(a)(2)(B). This variance affects only Section 3441(a)(2)(B), and requirements to comply with all other sections of Title 8 and other laws remain in full effect. This variance shall be posted for the duration of the variance in an area visible to affected employees. This variance applies only to the requirements of Section 3441(a)(2)(B). All other regulations and laws remain in full effect. This variance shall remain in effect until May 03, 2013, or until any of the following occurs:

• The Occupational Safety and Health Standards Board approves a permanent variance that addresses the operations included in this variance, or

• The Division notifies Grimmway Farms that continued operation under this variance poses a health or safety hazard(s) to employees, or

• Either party to the variance gives notice of its intent to withdraw from participation

.

Grimmway Farms May 4, 2012 Page 2 of 6 Temporary Variance

This variance applies to the use of employee transport platforms which attach to the three-point hitch on an agricultural tractor in fields owned or leased and operated by Grimmway farms. The following conditions apply to this use: A. General

1. Use of tractor-mounted transport platforms shall be allowed only for employees who are installing or removing irrigation pipe for low lying row crops such as carrots, lettuce, beets, radishes, and celery. No other employees shall be allowed to board or ride on tractor-mounted transport platforms. The tractor operator must remain in the operator’s seat at all times when employees ride on the transport platform.

2. Employees shall only ride in transport platforms in the furrowed area of fields, or upon farm roads while performing activities incidental to the activities in condition 1. The slope of the area in which employees ride on a personnel platform shall not exceed 5% grade (essentially flat).

3. Employees shall maintain three-point contact when mounting or dismounting the platforms. Passengers shall not mount or dismount the tractor or transport platform until it has come to a full and complete stop. All riders on the transport platform shall be seated and seat belts shall be worn whenever the tractor is in motion. The safety chain gate at each open side of the transport platform shall be connected in the closed condition whenever the tractor is in motion.

4. Grimmway Farms shall develop and implement a Transport Platform Safety Program. This program shall include the following elements:

a. A designated coordinator for the program b. Inspections prior to use on each day by a competent person to determine whether there

are any mechanical defects in the platform. No defective platform shall be used until it is repaired and reinspected, as described in Section E.

c. Random inspections by competent persons not immediately involved in the specific operation to determine whether operating rules are being followed, as described in Section E.

d. Investigation and recording of all accidents, injuries, near-missses and equipment failures related to this variance

e. Correction of any hazards discovered during the inspections and investigations required by the program

f. Training procedures

B. Design and Construction Specifications

5. Seats belts shall be installed for all passenger positions on transport platforms. Seat belts shall meet the requirements of Society of Automotive Engineers (SAE) J386 JUN93, Operator Restraint System for Off-Road Work Machines. All seat belts shall be labeled as meeting the SAE standard.

Grimmway Farms May 4, 2012 Page 3 of 6 Temporary Variance

6. Sufficient steps and handholds shall be provided on the transport platform so that employees can maintain three point contact while entering and exiting the platforms.

7. Each platform shall have an effective and reliable means by which passengers can relay an emergency signal to the tractor operator.

8. Grimmway Farms shall manufacture all transport platforms to be at least equivalent to the design presented in the Finite Element Analysis by Exponent Inc. dated January 18, 2012 and the specifications listed in the Grimmway Farms’ request for variance from Title 8 CCR 3441(a)(2)(B) dated September 27, 2011. (Attachment A).

9. All materials used in the manufacture of transport platforms shall be at least equivalent to ASTM Grade B for structural tubing. All other structural members shall meet the specifications of ASTM A36 for structural steel.

10. All welding or repairs affecting the structural integrity of the unit are to meet at a minimum AWS Standards D1.1 and D1.2, and the recommended weld specifications provided by Exponent Inc., entitled Sample Weld Specification. (Attachment B)

11. Front ballast shall be used on all tractors which are equipped with transport platforms. Grimmway Farms shall provide calculations for all tractor models used with transport platforms prior to the variance taking effect.

C. Operating Conditions

12. No passengers are allowed in the transport platform whenever the tractor is operating on or crossing any public road.

13. Grimmway farms shall establish a safe speed limit for the operation of equipment in fields in which personnel platforms are in use. This limit shall be determined in accordance with anticipated field conditions, and shall not exceed 5 miles per hour.

14. All passengers shall dismount whenever the tractor reaches the end of the row and before the tractor begins to turn. Passengers shall not re-board the transport platform until the tractor has completed its turn and is on a straight path through a row.

15. Passengers shall not be permitted on a tractor-mounted transport platform if the tractor or trailer is within 10 feet (measured from the outside wheel edge) of a ditch, canal, retention pond, unprotected edges of embankments or levees, culvert, excavation, a slope exceeding 5%, or other similar locations that present an overturn hazard. Passengers shall not ride in transport platforms in conditions where tires may lose traction, or in muddy locations where the tractor is likely to become mired.

16. When employees rise ride in the transport platform on private roads, the following conditions shall apply:

Grimmway Farms May 4, 2012 Page 4 of 6 Temporary Variance

a. The employer shall limit the speed of all vehicles on roads on which personnel platforms are in use to 5 miles per hour.

b. The employer shall ensure that employees do not ride on platforms during the transition from field to road, or at any time in which road conditions are not suitable for use, such as the presence of deep ruts or flooding.

c. Drivers of other vehicles shall be instructed to yield to tractors with personnel platforms so that tractors are not forced to the edge of the road.

d. Employees shall dismount when turns are made.

e. The employer shall post roads on which transport platforms are in use.

17. The tractor shall be brought to an immediate controlled stop, and employees shall dismount and stand well clear of the vehicle, if any of the following conditions occur:

a. If the tractor loses traction or becomes mired. b. The tractor operator detects an unusual or unsafe condition, including but not

limited to excessive pitch or yaw, erratic motion, or hazardous surface conditions. c. The employee(s) in the platform signal that there is a hazardous condition.

D. Training

18. Grimmway Farms shall train all persons who are permitted to ride on tractor-mounted transport platforms, all supervisors and managers involved in operations covered by this variance, and all persons responsible for maintaining equipment subject to this variance, on the conditions of this variance and on all work and usage rules associated with the transport platforms. All affected persons shall be instructed in the procedures to be followed if an unsafe condition is detected.

19. In addition to the training required in condition 18, supervisors and managers shall receive training on the measures used to evaluate the implementation and effectiveness of the conditions of this variance. All training shall be documented and made available to DOSH upon request.

20. In addition to the training in condition 18, tractor drivers shall be trained on proper daily inspection of the tractor, transport platform and trailer, and how to ensure that the tractor is properly ballasted. Tractor drivers subject to this variance shall have completed the employer’s tractor operation training program, and shall have a minimum of six months of experience operating tractors in fields.

E. Inspections

21. The tractor and transport platform shall be visually inspected at least daily prior to use. An additional inspection shall be conducted prior to use after any repair to the platform or tractor. The employer shall develop and use an inspection form specific to the

Grimmway Farms May 4, 2012 Page 5 of 6 Temporary Variance

transport platforms. The inspection form for the transport platform shall record, at a minimum, the condition of the following items: 3-point hitch connections, connection pins, seat belts, platform chain gates, all platform welds with special emphasis on welds at rear and bottom of transport platform identified as peak stress points in the Exponent Inc. Finite Element Analysis of the transport platform. If a defect is found during the inspection, the platform shall be removed from service until the platform has been repaired and reinspected. The platform shall not be used until the reinspection indicates that there are no defects. The inspection form shall also list the date and time of the inspection and the name and job title of the inspector.

22. The employer shall ensure that a competent person conducts unannounced inspections in each operation in which personnel platforms are used. A minimum of one operation at each location in which transport platforms are used shall be subject to an unnannounced inspected each month. The competent person shall not be from the farm or ranch being inspected. The inspection shall include determining compliance with all work rules associated with the use of transport platforms and the physical condition of the transport platforms and tractor. Written record of the employer’s compliance inspection shall contain the following information at a minimum:

a. Date, time, and location where the inspection took place b. Name and job title of the person who conducted the inspection c. The names of the irrigators and driver covered by the inspection d. The daily inspection form described in item 15 shall be used to evaluate the physical

condition of platform in addition to Grimmway Farms’ form for inspecting tractors. A separate form shall be developed and used for evaluating all the work rules for platform use.

e. Deficiencies found and corrections made during the inspection f. Signature of the person who performed the inspection and verified corrections

23. All inspection forms shall be retained for at least one year. They may be retained

electronically. The completed inspection forms shall be provided to the Division upon request.

F. Recording of Use

24. The employer shall keep the following records of the use of transport platforms:

a. The number of employees travelling in each platform each day

b. The number of miles travelled by employees in each platform each day in fields

c. The number of miles traveled by employees in each platform each day on private roads.

25. The employer shall consult with a university-based engineer to determine whether it is feasible to conduct direct measurements of forces exerted upon employees in the

Grimmway Farms May 4, 2012 Page 6 of 6 Temporary Variance

platforms, or other hazards. If such measurements are to be conducted, the employer will instruct the engineer to provide the results to the Division within 10 days of the results becoming available.

26. The employer shall consult with a university-based engineer to determine the necessity of design and procedural modifications to optimize transport platform safety for travel on farm roads including, but not limited to: trailer hitch installation, platform attachment to tractor and enclosure strength, ergonomic and operational considerations. If such modifications are recommended the employer shall notify and provide copies to the Division within 10 days of the recommendations becoming available.

G. Communication with the Division

27. On the first day of every month Grimmway Farms shall notify the Division’s representative of all locations in which transport platforms will be used.

28. In addition to notifications required by Title 8, California Code of Regulations, Section 342, Grimmway Farms shall notify the Division’s representative within 24 hours if any of the events listed below occur. Grimmway Farms shall also provide to the Division the results of its investigation of the incident within one week of the completion of the investigation. This paragraph shall apply to the following types of occurrences:

a. Any injury (recordable or non-recordable) to any employee engaged in operations covered by this variance

b. The upset or rollover of any equipment subject to this varianceNear-miss incidents involving trailer detachment, with or without injuryCollision, or

c. near-miss vehicular incidents, with or without injury

29. Grimmway Farms shall provide immediate access to premises covered by this variance to Division representatives for the purposes of conducting inspections or otherwise reviewing compliance with this variance.

Approvals:

Ellen Widess, Chief Date Division of Occupational Safety and Health

Christine Baker, Director Date Department of Industrial Relations