SECRETARY OF LABOR,
OSHRC Docket No. 08-0448
TURNER INDUSTRIES GROUP, LLC,
Jennifer R. Levin, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph
M. Woodward, Associate Solicitor for Occupational Safety and Health; Deborah
Greenfield, Acting Deputy Solicitor of Labor; U.S. Department of Labor, Washington,
For the Complainant
Patrick J. Veters; Jane H. Heidingsfelder; Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, New Orleans, LA
For the Respondent
Before: ROGERS, Chairman; and ATTWOOD, Commissioner.
BY THE COMMISSION:
Turner Industries Group, LLC (“Turner”) operates a pipe fabrication facility in
Paris, Texas, at which an employee was injured while being trained in the operation of a
newly-acquired machine. The Occupational Safety and Health Administration inspected
the facility and issued Turner a serious citation under the Occupational Safety and Health
Act of 1970, 29 U.S.C. §§ 651-78. In the citation, the Secretary alleged that Turner
failed to guard the machine’s “point(s) of operation” in violation of the machine guarding
standard set forth at 29 C.F.R. § 1910.212(a)(3)(ii), and proposed a $2,625 penalty.
Following a hearing, Administrative Law Judge Patrick B. Augustine affirmed the
citation and assessed a $1,000 penalty.
We have examined the record in its entirety, and fully considered the parties’
arguments on review.
We hereby adopt the judge’s findings of fact and conclusions of
law. Accordingly, we affirm his decision, attached hereto.
Thomasina V. Rogers
Cynthia L. Attwood
Dated: 3/4/2010 Commissioner
Secretary of Labor,
Turner Industries Group, LLP,
OSHRC DOCKET NO. 08-0448
Josh Bernstein, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
Patrick J. Veters, Esq., Jones, Walker, LLP, New Orleans, Louisiana
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review
Commission (“the Commission”) pursuant to Section 10(c) of the Occupational Safety
and Health Act of 1970, 29 U.S.C. §651 et seq. (“the Act”). The Occupational Safety
and Health Administration (“OSHA”) conducted an inspection of a Turner Industries
Group (“Respondent”) facility in Paris, Texas on September 27, 2007. As a result of the
inspection, OSHA issued a Citation and Notification of Penalty to Respondent alleging a
serious violation of 29 C.F.R. §1910.212(a)(3)(ii) with a proposed penalty of $2,625.
Respondent timely contested the citation and a trial was held on March 9, 2009 in
The parties agree that jurisdiction of this action is conferred upon the
Commission pursuant to Section 10(c) of the Act. The parties also agree that at all times
relevant to this action, Respondent was an employer engaged in a business affecting
interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5).
(Complaint and Answer; Tr.5).
An OSHA inspection was conducted at Respondent’s facility as a result of an
injury accident which occurred on September 26, 2007. For approximately two weeks
prior to the accident, several of Respondent’s employees were being trained to operate a
Dyna Torque Pipe Facing Machine (“pipe-cutting machine”). (Tr. 27, 91; Ex. 10, 11-A
through F). The machine is used to bevel (cut at an angle other than 90 degrees) pipe.
(Tr. 11; Ex. 10). Although the training was conducted at Respondent’s facility for
Respondent’s employees, it was led by a representative from the third-party machine
manufacturer who was present at the request of and under the supervision and control of
the Respondent during the timeframe in question. (Tr. 38-39). During the course of the
training, on September 26th, two of Respondent’s employees were taking measurements
and making adjustments at two different points of operation on the pipe-cutting machine
when it was unexpectedly started by the trainer. (Respondent’s Post-Hearing
Memorandum, pp. 1-2; Tr. 14-15, 90). One of the two employees, Josh Streety, injured
his hand as a result. (Tr. 67). Mr. Streety’s injuries required a trip to the hospital and
approximately 50 stitches. (Tr. 67).
OSHA assigned Compliance Safety and Health Officer (CSHO) Elias Vela to
conduct an investigation of the incident. (Tr. 72). CSHO Vela visited the facility the day
after the accident, and as a result of his investigation, recommended a citation alleging a
serious violation of 29 C.F.R. 1910.212(a)(3)(ii) for Respondent’s failure to properly
guard the points of operation on the pipe-cutting machine.
Each of the two accessible points of operation on the pipe-cutting machine
consisted of a circular spinning bevel which cut large sections of pipe mounted over
several protruding shafts. (Tr. 61; Ex. 11-A through F). Normally, the point of operation
closest to the operator was equipped with a guard, which was removed to make
adjustments and take measurements while the machine was turned off. (Tr. 21; Ex. 11-D). The second accessible point of operation, on the opposite side of the machine from
the operator, was never equipped with a guard prior to the accident. (Tr. 61; Ex. 11-D,
11-F). Even with the first point of operation guarded, an employee could still walk
around and access the second unguarded cutting area while the bevels were engaged. (Tr.
23, 64; Ex. 11-B, 11-D). Mr. Streety was injured while working on the unguarded side.
Some of the machines at Respondent’s facility were equipped with auto-shutoffs
and electric eyes which disabled equipment when a guard was removed or a point of
operation was accessed. (Tr. 23). The pipe-cutting machine was not equipped with such
protection. (Tr. 23). I note that while employees took measurements and made
adjustments at the points of operation, the pipe-cutting machine was still capable of being
energized. (Tr. 22). Respondent’s Job Safety Analysis further instructed operators to
“not get between pipe and beveller” and to “not start machine with guard in open
position.” (Ex. 1-B).
Khushrooh Pardiwalla, the supervisor who directed employees to participate in
this training, testified that Respondent recognized the hazard of employees getting their
hands caught in pinch-points while using the pipe-cutting machine. (Tr. 19-20, 66). It
was not possible to close the guard on the backside of the machine where Mr. Streety was
injured, since no guard existed at that location. (Ex. 11-D, 11-E). He conceded that if an
employee had his hands or fingers in the unguarded area while the machine was
operating, they could be pinched, lacerated, broken, or even torn off. (Tr. 19). He
testified that prior to the accident, Respondent’s safety practice basically relied on
operators to not turn on the machine when other employees were in the zone of danger.
(Tr. 24). Mr. Pardiwalla acknowledged that if the pipe-cutting machine had been
equipped with guards which automatically de-energized the machine when the points of
operation were accessed, this accident would not have occurred. (Tr. 40-41). He also
conceded that such guards were feasible for this particular pipe-cutting machine. (Tr. 41-42).
Mr. Pardiwalla personally observed employees using the pipe-cutting machine
with the backside completely unguarded during the two weeks of training leading up to
the accident. (Tr. 28, 30). During this training, the machine was typically operated by
three people at one time. (Tr. 30). The third party trainer would turn the machine on and
off while two of Respondent’s employees made adjustments and took measurements at
each point of operation. (Tr. 30; Ex. 4, 5, 6, 7, 8).
Mr. Pardiwalla attempted to distinguish the training sessions from normal
working conditions by explaining that the machine was intended to be operated by only
one person at a time once training was completed. (Tr. 31). However, Respondent’s
written Job Safety Analysis, in effect both before and after the accident, recommended
that the machine be operated by two employees at a time so that there would always be
someone available to reach the emergency shutoff switch. (Tr. 32-33; Ex. 1-A, 1-B).
In calculating the proposed penalty of $2,625 for this violation, CSHO Vela
characterized this condition with a “medium” severity of potential injury and a “greater”
probability of an accident due to the fact that one actually occurred. (Tr. 72-73). He
reduced the original calculated penalty by 10% for Respondent’s size, good faith during
the inspection, and OSHA violation history. (Tr. 73). He also testified that “it’s very
unlikely” a similar accident would occur in the future. (Tr. 83).
To establish a prima facie violation of the Act, the Secretary must prove: (1) the
standard applies to the cited condition; (2) the terms of the standard were violated; (3)
one or more of the employees had access to the cited condition; and (4) the employer
knew, or with the exercise of reasonable diligence could have known, of the violative
condition. Ormet Corporation, 14 BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991).
Citation 1 Item 1
The Secretary alleges in Citation 1 Item 1 that:
29 CFR 1910.212(a)(3)(ii): Point(s) of operation of machinery were not
guarded to prevent employee(s) from having any part of their body in
the danger zone(s) during operating cycles:
On or about Sep[tember] 26, 2007, and times prior to, machine
guarding did not protect employees from hazards created by rotating
machine parts of the Dyna Torque Pipe Facing Machine.
The cited standard provides:
The point of operation of machines whose operation exposes an
employee to injury, shall be guarded. The guarding device shall be in
conformity with any appropriate standards therefore, or, in the absence
of applicable specific standards, shall be so designed and constructed as
to prevent the operator from having any part of his body in the danger
zone during the operating cycle.
The cited standard applies to machinery with a point of operation that exposes
employees to possible injury. “Point of operation” is defined, at 29 C.F.R.
§1910.212(a)(3)(i), as “the area on a machine where work is actually performed upon the
material being processed.” The record clearly establishes that the cited condition was a
failure to guard an accessible area of the pipe-cutting machine where a spinning bevel
actually cut pipe. The Secretary established that the standard applies to the cited
One of the points of operation on the pipe-cutting machine, at the time of the
injury and for at least two weeks prior, was wholly unguarded even while the machine
was being used. Any of the employees who participated in the training could, and did on
one occasion, have their hand in the unguarded point of operation while the machine was
actually cutting pipe. It is not sufficient that Respondent relied on employees to keep
their hands out of unguarded areas while the machine was operating by telling them to
“not get between the pipe and the beveller.” The Commission has recognized that the
guarding standards were designed to protect employees from common human errors
resulting from neglect, distraction, inadvertence, carelessness, or fatigue. Slyter Chair,
Inc., 4 BNA OSHC 1110, 1975-1976 CCH OSHD ¶20,589 (No. 1263, 1976); B.C.
Crocker, 4 BNA OSHC 1775, 1976-1977 CCH OSHD, ¶21,179 (No. 4387, 1976). The
Secretary established a violation of the cited standard.
Respondent argues that once training was completed, only one employee would
operate the machine at a time and there was no reasonable expectation that the single
operator would walk around to the unguarded portion of the machine while it was in
operation. However, Respondent ignores the focus of the citation in this case. The
Secretary alleges that for two weeks up to and including the accident, Respondent’s
employees were being trained as a group, with at least two employees simultaneously
working on the machine, resulting in daily employee exposure to the unguarded point of
operation. Second, in contradiction of Respondent’s argument, its written procedures
required two employees at a time to operate the pipe-cutting machine. Even if operating
the machine alone, employees were required to periodically access the unguarded side to
take measurements and make adjustments. The Respondent has cited no legal authority
to support its argument that a different standard of care exists during training sessions as
opposed to regular business operations. I do not accept such argument in light of the
purpose of the Act. I find that even if the accident had not occurred, it was still
reasonably predictable that Respondent’s employees could come within the zone of
danger of the unguarded side of the machine. S&G Packaging Company, LLC, 19 BNA
OSHC 1503, 2001 CCH OSHD ¶32,401 (No. 98-1107, 2001). The Secretary established
employee exposure to the unguarded point of operation on the pipe-cutting machine.
The exposed employees’ immediate supervisor observed them repeatedly
operating this machine in this condition before the accident. The lack of a guard on the
backside of the pipe-cutting machine was obvious to anyone even casually observing its
operation. (Ex. 11-D, 11-E, 11-F). The supervisor’s knowledge of the machine condition
and his employees’ daily group operation of the machine is imputed to the Respondent.
A.P. O=Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD &29,223 (No. 85-0369, 1991).
The Secretary established Respondent’s knowledge of the violative condition.
There is no dispute that serious injury or death could result from an employee
coming into contact with rotating, pipe-cutting bevels. Unfortunately in this instance,
such an injury actually occurred. The Secretary properly characterized the violation as
Respondent argued a defense of “unforeseen misconduct of a third party
contractor.” (Tr. 6). Respondent’s argument is rejected. Such affirmative defense
ignores the fact that the third party contractor was present at the request of and under the
direction and control of the Respondent. Furthermore, Respondent’s argument focuses
on responsibility for the actual accident, which is not an issue in this proceeding. As
stated above, even if the accident had not occurred, Respondent’s employees were still
exposed to the unguarded side of the pipe-cutting machine during the two weeks of group
training leading up to the accident.
Respondent did not argue the merits of any other affirmative defenses. Therefore,
any other alleged affirmative defenses are deemed abandoned.
In calculating the appropriate penalty for a violation, Section 17(j) of the Act
requires the Commission to give Adue consideration@ to four criteria: (1) the size of the
employer's business, (2) the gravity of the violation, (3) the good faith of the employer,
and (4) the employer's prior history of violations. 29 U.S.C. '666(j). Gravity is the
primary consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood of an
actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD
&29,964 (No. 87-2059, 1993).
Several employees (the record fails to establish the precise number) were exposed
to this unguarded machine over a period of two weeks. The circumstances of employee
exposure were somewhat unusual in that they occurred during training from the machine
manufacturer. I give considerable weight to the testimony of CSHO Vela when he stated
that it was “very unlikely” such an accident would occur again. Considering the totality
of the circumstances, I find that a penalty of $1,000 is appropriate for the violation.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
1. Citation 1 Item 1 is AFFIRMED as a serious violation and a penalty of $1,000
Date: June 18, 2009 /s/_________________________________
Denver, Colorado Patrick B. Augustine