“SECRETARY OF LABOR,Complainant,v.NATIONAL METALWARES, INC.,Respondent.OSHRC Docket No. 89-0422_ORDER _This matter is before the Commission on a Direction for Review enteredby Commissioner Velma Montoya on June 18, 1990. The parties have nowfiled a Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Settlement Agreement, we conclude that this case raises nomatters warranting further review by the Commission. The terms of theSettlement Agreement do not appear to be contrary to the OccupationalSafety and Health Act and are in compliance with the Commission’s Rulesof Procedure.Accordingly, we incorporate the terms of the settlement Agreement intothis order. This is the final order of the Commission in this case._See_ 29 U.S.C. ? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: _July 22, 1991_————————————————————————July 5, 1991Ray H. Darling, Jr.Executive SecretaryOccupational Safety and HealthReview CommissionRe: _*Secretary of Labor v. National Metalwares, Inc. *_ *OSHRC No. 89-0422*Dear Mr. Darling:Enclosed for filing are five copies of a settlement agreement whichresolves all issues in the case now pending before the commission.Mr. Chadd and I would like to express our very sincere appreciation tothe Commission for allowing us the time necessary to complete thisagreement to the advantage of both parties.Sincerely,Daniel J. MickCounsel for RegionalTrial LitigationEnclosurescc; Charles M. Chadd, Esq.————————————————————————LYNN MARTIN, Secretary of Labor,United States Department of Labor,Complainant,v.NATIONAL METALWARES, INCORPORATED,Respondent.OSHRC DocketNo. 89-0422_SETTLEMENT AGREEMENT_Complainant, LYNN MARTIN, Secretary of Labor, United States Departmentof Labor, and Respondent, NATIONAL METALWARES, INC., pursuant to Rule100 of the Occupational Safety and Health Review Commission, 29 CFR ?2200.100, hereby agree to resolve all pending issues in the above matteras follows:_With respect to the notification of failure to abate (Paragraphs 1-5 ofthis Agreement)_1. The Complainant hereby amends the notification of failure to abatealleged violations issued against Respondent on January 12, 1989 as follows:(a) Complainant withdraws the allegation of subpart (b) that Respondentfailed to abate Die No. 355.(b) Complainant reduces the penalty proposed to Eleven Thousand FiveHundred Dollars ($11,500).2. The Respondent has no objection to the amendment of the notificationof failure to abate as set forth in Paragraph 1 above and withdraws itsnotice of contest to the notification of failure to abate as amended herein.3. With respect to mechanical power presses at National Metalwares, theparties agree that the issue of safeguarding the point of operation mustbe approached on a die-by-die basis.4. National Metalwares represents that on each die currently in activeuse (a list of such dies is attached as Exhibit A), the means ofsafeguarding the press operator from the hazard of the point ofoperation is either physical restraints or two-hand controls with theexception of Dies Nos. 355, 359, 478 and 933. With respect to Dies Nos.355, 359, 478 and 933, the means for protecting the press operator fromthe hazard of the point of operation is a safeguarding system consistingof (a) a physical barrier attached to the press with openings designedto satisfy two conditions – (i) allow an elongated, tubular part to beinserted into the die area and (ii) allow the press operation to beperformed on the part; (b) an elongated tubular part in the barrieropening throughout the press cycle; and (c) an operator holding theelongated tubular part with both hands during the press cycle. Inconnection with Die No. 933 the parties have agreed that Respondent willincorporate the changes which are set forth in Exhibit B hereto. Thesafeguarding systems utilized with respect to Dies Nos. 355, 359, 478and 933 (as set forth on Exhibit B for Die No. 933) have been reviewedby the Complainant and each system is in compliance with the point ofoperation safeguarding requirements of 29 CFR ? 1910.217. The partiesalso agree that the use of properly adjusted physical restraints ortwo-hand controls on the other Dies identified on the notification offailure to abate constitute compliance with the point of operationsafeguarding requirements of 29 CFR ? 1910.217.5. National Metalwares further represents that after July 1, 1991, whennew dies are added to its operation or existing dies are modified, itwill attempt to utilize physical restraints or two-hand controls as themeans of safeguarding the point of operation. If National Metalwares’analysis demonstrates that physical restraints or two-hand controlscannot be used on a new or modified die and if the physical barrieropenings referred to in (b) (i) below cannot conform to the requirementsof Table 0-10 of 29 CFR ? 1910.217 for the reasons set forth in (b) (i)below, then National Metalwares will (a) document the reason(s) whyphysical restraints or two-hand controls cannot be used with respect tothe die in question and (b) design and construct a safeguarding systemfor use with that die consisting of (i) a physical barrier with openingsdesigned to satisfy two conditions – allow the elongated, tubular partutilized in conjunction with the die to be inserted into the die areaand allow the press operation to be performed on the part; (ii) anelongated tubular part in the barrier opening throughout the presscycle; and (iii) an operator holding the elongated tubular part withboth hands throughout the press cycle, provided further that the designshall consider and account for the issue of whether an adjacentopening(s) in the barrier shall expose an employee to a point ofoperation or nip point hazard if the hand slips while holding a tubularpart. A safeguarding system meeting the conditions of this paragraph isin compliance with 29 CFR ? 1910-217.6. The parties agree that the terms of Paragraph 5 of this Agreementshall remain in effect for a term of six (6) years from the date ofexecution of this Agreement. After the six-year period, the terms ofParagraph 5 shall continue to remain in effect unless one of the partiesto this Agreement gives a written notice of termination by certifiedmail to the other party and upon such notice the terms of Paragraph 5shall expire 120 days after the date the written notice is received. IfParagraph 5 is terminated under the terms of this Paragraph and if acitation is subsequently issued alleging that a safeguarding systemmeeting the terms of Paragraph 5 violates the point of operationsafeguarding requirements of 29 CFR ? 1910.217, then with respect tothat first subsequent citation, Respondent shall not be barred fromraising any defense to that citation including those raised in thisproceeding and the Judge’s decision in this matter shall not havepreclusive effect on any issue raised by that first subsequent citation._With Respect to Item No. 1 of Citation No. 2 (Paragraphs 6-9 of ThisAgreement)_7. Respondent hereby withdraws its notice of contest to Item No. 1 ofCitation No. 2.8. Complainant has no objection to the withdrawal of Respondent’s noticeof contest to Item No. 1 of Citation No. 2.9. Item No. 1 of Citation No. 2 claims that the machine guarding inplace on Pines Tube Bender No. 1 was not adequate to meet therequirements of 29 CFR ? 1910.212(a)(1). Although Respondent does notadmit the allegations of the citation, it has redesigned the guard onthat machine. A schematic of that guard is attached hereto as Exhibit C.Complainant has reviewed the design set forth on Exhibit C and agreesthat it is in compliance with the requirements of 29 CFR ? 1910.212.10. The parties agree to a penalty of $500 for Item. No. 1 of CitationNo. 2._General Provisions Applicable to All Issues_11. None of the foregoing agreements, statements, findings and actionstaken by Respondent shall be deemed an admission by the Respondent ofthe allegations contained within the Notification of Failure to Abate,Item No. 1 of Citation No. 2 and the Notification of Penalty and theComplaint in this action. The agreements, statements, findings andactions taken herein are made for the purpose of compromising andsettling this matter economically and amicably.12. The parties agree that this settlement agreement resolves allpending issues in the above matter and that this settlement agreement,and not the Judge’s decision, shall control the outcome of this case.13. Respondent has forwarded a check to Complainant made out to \”UnitedStates Department of Labor – OSHA\” in the amount of Twelve ThousandDollars ($12,000) in full payment of the penalties set forth herein.14. It is hereby certified by Respondent that this Settlement Agreementhas been given to employees represented by an authorized representativein accordance with Rules 7 and 100 of the Commission’s Rules ofProcedure. It is hereby further certified by Respondent that thisSettlement Agreement has been served on employees not represented by anauthorized employee representative, if any, by posting this agreement ina place where the Citation is required to be posted, in accordance withRules 7 and 100 of the Commission’s Rules of Procedure.The Complainant and the Respondent agree that an order should be enteredwhich approves this agreement in all respects.DATED: _July 5, 1991._NATIONAL METALWARES, INC. DAVID S. FORTNEYDeputy Solicitor of LaborDANIEL MICKCounsel for Regional TrialLitigationAttorneys for Lynn MartinSecretary of Labor, UnitedStates Department of Labor,ComplainantGary HillIts PresidentCharles M. ChaddAttorney forNational Metalwares, Inc. _NOTICE _Any party (including any authorized employee representative of affectedemployees and any affected employee not represented by an authorizedrepresentative) who has any objection to the entry of an order as setforth in this agreement, must communicate such objections within ten(10) days of the posting of this agreement to the Executive Secretary,Occupational Safety and Health Review Commission, 1825 K Street, N.W.,Room 401, Washington, D.C. 20006 with copies to attorneys forcomplainant and respondent.The pictorial exhibit referred to above is not available in this format.Please telephone the Review Commission Public Information Office,FAX: 202-606-5050; e-mail: [email protected] ————————————————————————SECRETARY OF LABOR,Complainant,v.NATIONAL METALWARES, INC.,Respondent.OSHRC Docket No. 89-0422APPEARANCES:Richard Kordys, Esquire, Office of theSolicitor, U.S. Department of Labor,Chicago, Illinois, on behalf ofcomplainant.Charles M. Chadd, Esquire, Pope, Ballard,Shepard and Fowle, Ltd., Chicago,Illinois, on behalf of respondent._DECISION AND ORDER _BRADY, Judge: Respondent, National Metalwares, Inc., (\”Natonal\”),contests a notification of failure to abate alleged violation and twocitations issued by the Secretary of Labor (\”Secretary\”) on January 12,1989. The proceeding was initiated following an inspection ofNational’s plant located at 900 North Russell Avenue in Aurora,Illinois, by the Occupational Safety and Health Administration (\”OSHA\”).National is a manufacturer of tubular steel components andsub-assemblies for other manufacturing companies. It employsapproximately 370 workers in Illinois, including 275 at the Aurora plant._FAILURE TO ABATE_National entered into a settlement agreement with the Secretary of Laboron August 1, 1988 (Ex. C-1; Tr. 48). The settlement agreement emanatedfrom an inspection conducted by OSHA in March 1988 (Tr. 47). Theagreement, which became a final order of the Review Commission onSeptember 6, 1988, pertained to 29 CFR ? 1910.217(c)(2)(i)(a) andincluded a petition for modification of abatement and failure to abatealleged violation.On November 17, 1988, OSHA safety supervisor Alex Smith visitedNational’s Plant, accompanied by three other OSHA employees to conduct afollow-up inspection to determine whether National was in compliancewith the settlement agreement. Paragraph 11(a)(i) of the settlementagreement provides (Ex. C- 1):11. This paragraph and its subparagraphs set out the method of selectionof dies to be permanently guarded within the abated period.(a) National Metalwares represents that the order of dies selectedselected to be permanently guarded will be such that no later than:(i) October 1, 1988–all Category I and II dies selected to bepermanently guarded will have permanent guarding means completed.The OSHA personnel measured each of the guards designed for the CategoryI and II dies (Ex. C-13). OSHA contends that 11 of the 15 guardsmeasured were inadequate to guard the points of operation. The 11alleged inadequate guards were for the following press and diecombinations (Ex. C-13):(a) \tDie \t#324, \tPress \t#66(b) \tDie \t#355, \tPress \t#85(c) \tDie \t#468, \tPress \t#30(d) \tDie \t#227, \tPress \t#37(e) \tDie \t#464, \tPress \t#67(f) \tDie \t#919, \tPress \t#78(g) \tDie \t#322, \tPress \t#83(h) \tDie \t#469, \tPress \t#70(i) \tDie \t#116, \tPress \t#32(j) \tDie \t#779, \tPress \t#38(k) \tDie \t#620, \tPress \t#54The Secretary contends that National’s guards for these presses and diesfailed to meet the requirements of 29 C.F.R. ? 1910.217(c)(2)(i)(a)which provides:Every point of operation guard shall meet the following design,construction, application, and adjustment requirements:(a) It shall prevent entry of hands or fingers into the point ofoperation by reaching through, over, under, or around the guard.Section 1910.217(c)(2)(i)(b) of 29 C.F.R. provides:It shall conform to the maximum permissible openings of Table 0-10.Table 0-10 provides:The pictorial exhibit referred to above is not availabel in this format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386;FAX: 202-606-5050; e-mail: [email protected] This table shows the distances that guards shall be positioned from thedanger line in accordance with the required openings.According to Smith’s testimony, the relevant measurements for the diesand presses are (Exs. C-4, C-5, C-6, C-10, C-11, C-12, C-14 throughC-25, C-29 through C-39; Tr. 76, 89-94, 99-101, 107-108, 112-113,116-117, 121-124, 130, 135-136, 144):The pictorial exhibit referred to above is not available in this format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386;FAX: 202-606-5050: e-mail: [email protected] The distance from the guards to the points of operation of 11 cited diesand presses are greater than the distances allowed in Table 0-10. TheSecretary has shown that National was not in compliance with ?1910.217(c)(2)(i)(a) and was thus in violation of the settlementagreement which specifically required such abatement.In _Braswell Motor Freight Lines, Inc.,_ 77 OSAHRC 86\/D4, 5 BNA OSHC1469, 1470, 1977 CCH OSHD ? 21,881 (No. 8480, 1977), the ReviewCommission held that \”the complainant’s prima facie case of failure toabate is established upon a showing that: (1) the original citation hasbecome a final order of the Commission, and (2) the condition or hazardfound upon reinspection is the identical one for which respondent wasoriginally cited.\” The Secretary has met these two requirements.The Review Commission goes on to say:An employer may rebut this prima facie case by showing that thecondition was corrected or, if not corrected, that the employer hasprevented the exposure of his employees to the violative condition . . .. The prima facie case may also be rebutted by a showing that thecondition for which the employer was cited was in fact not violative ofthe Act either at the time of the original inspection or at the time ofreinspection._Id._National argues that it was in compliance with ? 1910.217 because itused the alternative of guarding devices.Section 1910.217(c)(1)(i) provides:It shall be the responsibility of the employer to provide and insure theusage of \”point of operation\” guards or properly applied and adjustedpoint of operation devices on every operation performed on a mechanicalpower press. See Table 0-10. (Emphasis added.)National argues that it is irrelevant that its guards are not inconformance with Table 0-10 if they have properly applied and adjustedpoint of operation devices. National claims that its \”three-partsafeguarding system\” brings it into compliance with ? 1910.217 by way of? 1910.217(c)(3)(i)(b), which provides:Point of operation devices shall protect the operator by:(b) Preventing the operator from inadvertently reaching into the pointof operation, or withdrawing his hands if they are inadvertently locatedin the point of operation, as the dies close.National’s \”three-part safeguarding system\” consists of (1) the actualguard, (2) the opening being so small that it only accommodates thetubular part, and (3) the requirement that the operator hold the partwith both hands. This system does not meet the requirements of a\”device.\” Section 1910.211(d)(11) provides:(11) \”Device\” means a press control or attachment that:(i) Restrains the operator from inadvertently reaching into the point ofoperation, or(ii) Prevents normal press operation if the operator’s hands areinadvertently within the point of operation, or(iii) Automatically withdraws the operator’s hands if the operator’shands are inadvertently within the point of operation as the dies close, or(iv) Prevents the initiation of a stroke, or stops of stroke inprogress, when there is an intrusion through the sensing field by anypart of the operator’s body or by any other object.National’s system described a method and not a device, National did nothave proper \”point of operation\” guards or properly applied and adjustedpoint of operation devices in accordance with ? 1910.217(c)(1)(i).Therefore, its argument that it was in compliance with ? 1910.217 must fail.National argues that if it was not in compliance with ? 1910.217, thencompliance with ? 1910.217(c) is infeasible. National did not contactOSHA regarding this perceived infeasibility, nor did it petition for amodification of abatement on this point. The record establishes that atthe time of the hearing, National was using restraints as the primarysafeguarding method on 9 of the 11 cited presses and dies (Tr. 222-223).National claims that restraints cannot be used with Dies #779 and #355(Tr. 326-342).National’s implementation of the hand restraints contradicts itsargument that the use of alternative means of guarding was not availableat the time of the inspection. National’s claim of infeasibility mustfail. Finally, National argues that, even if it was in noncompliancewith 1910.217, the violation was de minimis. This argument is rejected.Smith has spent 19 years in the safety compliance field. Since 1970 hehas conducted approximately 2,500 inspections, 2,300 of which involvedmachine point of operation guarding (Tr. 25, 43). It was his opinionthat the improperly guarded presses and dies presented the hazard ofamputated fingers and hands. This is a serious hazard, and it will notbe trivialized with a de minimis classification.Section 17(d) of the Act provides for a penalty of not more than $1,000a day for each day that a violation continues to go unabated. Theabatement date set by the settlement agreement was October 1, 1988 (Ex.C-1). The inspection took place on November 17, 1988. Upon fullconsideration of the facts, including the steps taken by respondent toabate the violative conditions, a penalty in the amount of $23,000 isdeemed appropriate._CITATION ONE_National was also charged with the serious violations of 19 C.F.R.1910.217(b)(4)(iii)[[1]] and 29 C.F.R. 1910.217(b)(7)(v)(b).[[2]]National was cited as follows:129 CFR 1910.217(b)(4)(iii): Pedal return springs of pedals used onmechanical power presses using full revolution clutches, were not of thecompression type, operating on a rod or guided within a hole or tube, ordesigned to prevent interleaving of spring coils in event of breakage:Fabrication Department Back, L&J Press, #70229 CFR 1910.217(b)(7)(v)(b): The two hand control system for mechanicalpower presse(es) using part revolution clutch(es) was not designed topermit an adjustment requiring concurrent pressure from both handsduring the die closing portion of the stroke:Fabrication Department Back, Rousselle Press #69.National does not dispute that it was not in compliance with the citedstandards. National disputes only the Secretary’s proposed penalties of$400 for each of the two items.The Commission is the final arbiter of penalties in all contested cases._Secretary v. OSAHRC and Interstate Glass Co.,_ 487 F.2d 438 (8th Cir.1973). Under 17(j) of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and thehistory of previous violations in determining the assessment of anappropriate penalty. The gravity of the offense is the principal factorto be considered. _Nacirema Operating Co., Inc.,_ 72 OSAHRC 1\/B10, (p)BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1971).Smith testified that the pedal return spring on Press #70 would notprevent interleaving of the spring in the event of breakage. The spring,designed to return the pedal to the proper position, could result inanother stroke by the press ,if broken. As to Press #69, Smith statedthe controls did not require concurrent contact with the buttons. Inboth instances, the hazardous conditions could result in the amputationof employees’ fingers and hands.After considering the factors used for determining penalties, a penaltyin the sum of $200 for each item is deemed appropriate._CITATION TWO_National was charged with a repeat violation of 29 C.F.R. ?1910.212(a)(1), which provides:One or more methods of machine guarding shall be provided to protect theoperator and other employees in the machine area from hazards such asthose created by point of operation, ingoing nip points, rotating parts,flying chips and sparks. Examples of guarding methods are–barrierguards, two-hand tripping devices, electronic safety devices, etc.The citation alleged:129 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protectoperators and other employees from hazards created by pinch points:Fabrication Department Back, Pines Tube Bender #1, at Press *69, thepinch point created by the clamping arm was not adequately guarded.The National Metalware Incorporated was previously cited for a violationof this occupational safety and health standard or its equivalentstandard 29 CFR 1910.212(a)(1) which was contained in OSHA inspectionnumber 2433977, citation number 1, item number 2, issued on 4\/28\/86.National argues that the cited guard was based on a design created forthe company by an OSHA engineer in 1987 (Ex. R-8; Tr. 175). R-8 depictsa diagram of the proposed guard. Under \”Notes,\” R-8 states in pertinentpart: \”This conceptual (drawing) is prepared for design information.Company’s engineering shall work the dimensional tolerances . . . \”National claims it is unfair for OSHA to instruct National to work onthe dimensional tolerances and then cite the company for having theincorrect dimensional tolerances. National is mistaken in assuming that,because OSHA did not dictate the dimensional tolerances in theconceptual drawing, National was free to ignore the requirements of thecited standard.Smith testified that the guard in question \”was not properly position toprevent entry into the pinch point\” (Tr. 158). The likely injuriesresulting from such a condition are the crushing or amputation of thefingers (Tr. 159). National was in violation of ? 1910.212(a)(1).\”A violation is repeated under section 17(a) of the Act if, at the timeof the alleged repeated violation, there was a Commission final orderagainst the same employer for a substantially similar violation.\”_Potlatch Corp., _79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ?23,294, p. 28,171 (No. 16183, 1979).National had previously been cited on April 28, 1986, for improperlyguarding the pinch points on a Pines Tube Bender (Ex. C-42; Tr. 160).(There is no dispute that the citation alleging violation of1910.212(a)(1) became a final order June 1, 1987.) The violations weresubstantially similar. National was in repeat violation of ?1910.212(a)(1); and, upon consideration of all factors, a penalty of$500 is deemed appropriate.The foregoing constitutes the findings of fact and conclusions of lawunder Rule 52(a) of the Federal Rules of Civil Procedure._ORDER_Based upon the foregoing findings of fact and conclusions of law, it ishereby ORDERED:1. The citation for failure to abate is affirmed and a penalty of$23,000 is assessed.2. Citation 1 is affirmed and a penalty of $400 is assessed.3. Citation 2 is affirmed and a penalty of $500 is assessed.Dated this 15th day of May, 1990.PAUL L. BRADYJudge————————————————————————FOOTNOTES:[[1]] Section 1910.217(b)(4)(iii) provides:The pedal return spring(s) shall be of the compression type, operatingon a rod or guided within a hole or tube, or designed to preventinterleaving of spring coils in event of breakage.[[2]] Section 1910.217(b)(7)(v)(b) provides:The control system shall be designed to permit an adjustment which willrequire concurrent pressure from both hands during the die closingportion of the stroke.”