OSHRC Docket No. 15500

Occupational Safety and Health Review Commission

October 27, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor

W. L. White, Jr., United States Steel Corp., for the employer

Ronald Nau, Chairman, Union Safety Committee, USW Local 1104, for the employees




BARNAKO, Commissioner:

The issue in this case is whether Judge James D. Burroughs erred in granting Respondent's motion for summary judgment and thereby vacating a citation for alleged violation of 29 C.F.R. 1910.212(a)(1). n1 Respondent was issued the citation for allegedly failing to adequately guard the nip-points on a coke conveyer belt in its steel mill at Lorain, Ohio.   Judge Burroughs, in vacating the citation, determined that 1910.212 is not applicable to conveyers. We conclude that summary judgment is inappropriate on the existing record and remand for further proceedings.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard provides:

One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip-points, rotating parts, flying chips and sparks.   Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The facts supporting Respondent's motion for summary judgment are contained in an affidavit of its plant engineer, Mr. Kummant.   The affidavit states that the conveyer in question is a horizontal and inclined device for transporting bulk materials in a path pre-determined by the design of the conveyer. It has fixed points of loading and discharge.   The conveyer is used only for the handling of material and does not process or otherwise change the transported material in any way.   The conveyer transports screened coke dust, which is deposited onto the conveyer from the floor above by another set of conveyers, and is then conveyed to a point where it is deposited into a dust surge bin. The coke dust from the bin is then dumped into either a truck or a railroad car. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Mr. Kummant's affidavit also contains descriptive information concerning the size, speed, and layout of the conveyer.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Burroughs concluded that 1910.212(a)(1) was [*3]   not intended to apply to conveyers. He first noted that 1910.212(a)(3)(iv) refers to certain machines, n3 and concluded that these were representative of the types of machines to which 1910.212 was intended to apply.   Since the listed machines are all used to process material, he concluded that the standard did not apply to machines, such as conveyers, used solely to transport material.   He also observed that a different subpart (Subpart N) of the Secretary's standards deals with materials handling and storage. n4 He reasoned that conveyers, if covered at all by the Secretary's standards, should be regulated under Subpart N; the standards in Subpart N do not, however, refer to conveyers. Finally, the Judge noted that the Secretary had proposed to amend Subpart N to include a standard specifically applicable to conveyers. n5 He interpreted this to mean that the existing standards were not intended to apply to conveyers.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This section provides:

The following are some of the machines which usually require point of operation guarding:

(a) Guillotine cutters.

(b) Shears.

(c) Alligator shears.

(d) Power presses.

(e) Milling machines.

(f) Power saws.

(g) Jointers.

(h) Portable power tools.

(i) Forming rolls and calenders.

n4 Section 1910212 appears in Subpart 0 of the Secretary's general industry standards.

n5 39 Fed. Reg. 19507 (June 3, 1974).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We disagree in part with the Judge's reasoning.   Generally, a general standard applies according to its terms unless the hazard which the standards seeks to eliminate is addressed by a more specific standard.   General Supply Co., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1976-77 CCH OSHD para. 21,503 (No. 11752, 1977); Irvington Moore, Division of U.S. Natural Resources, Inc., 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD para. 19,523 (No. 3116, 1975), aff'd, No. 75-2159 (9th Cir., June 30, 1977).   As the Judge observed, the existing specific standards in Subpart N dealing with materials handling do not regulate conveyers in any fashion.   Accordingly, the existence of those standards does not affect the question of whether 1910.212 is applicable to conveyers.

Furthermore, the publication of a proposed standard does not affect the applicability of an existing standard.   The existing standard continues to apply until such time as the proposed standard is adopted.   United Telephone Company of the Carolinas, Inc., 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD para. 21,043 (No. 4210, 1976).   [*5]   Thus, the proposal by the Secretary of standards applicable to conveyers has no bearing on the outcome of this case.   As there are currently no specific standards dealing with conveyers, the question reduces to whether the general machine guarding standard, 1910.212(a)(1), is intended to apply to machines such as Respondent's conveyer.

We have previously noted, as did Judge Burroughs, that the listing of certain types of machines in 1910.212(a)(3)(iv) indicates that all machines are not within the purview of 1910.212.   Allis-Chalmers Corp., 76 OSAHRC 142/C3, 4 BNA OSHC 1876, 1976-77 CCH OSHD para. 21,341 (No. 8274, 1976).   In that case, the machine at issue was a tractor, which had been manufactured and was in the process of being tested.   We stated:

The standard at 1910.212(a)(1) is clearly directed towards machines which are or can be used in the production or manufacturing process. The examples of machines listed in 1910.212(a)(3)(iv), although specifically directed toward point of operation guarding, are illustrative of the type of machine for which other types of guarding are required.   Moreover, each of the other sections of subpart 0 specify safety requirements for   [*6]   machines used in manufacturing processes, but none specify such requirements for products produced as a result of the processes.   The tractors in question are not machines which are used in the manufacturing process but rather are the products of the process.   4 BNA OSHC at 1877, 1976-77 CCH OSHD para. 21,341 at p. 25,629.

Unlike Allis-Chalmers, this case does not involve a machine which is the product of the manufacturing process. Thus, Allis-Chalmers is not directly controlling.   Allis-Chalmers did, however, recognize that the question whether 1910.212 applies to a particular machine depends on the relationship of that machine to the employer's manufacturing process.

The record shows that the conveyer at issue is used to transport screened coke dust, but does not describe the manner in which this operation relates to Respondent's manufacturing process. That is, the evidentiary record does not identify the product and it does not describe the role of the conveyor in the production of the product.   Therefore, in my view, the present factual record is insufficient to determine whether 1910.212 applies to respondent's conveyor. I would hold that the Judge's granting   [*7]   of the motion for summary judgment was premature, and would remand to allow the record to be supplemented.

Chairman Cleary is of the view that the present record establishes that 1910.212(a)(1) is applicable to respondent's conveyor. He notes the statement in Allis-Chalmers that "1910.212(a)(1) is clearly directed towards machines which are or can be used in the production or manufacturing process" (emphasis added).   In his opinion, the involved conveyor is such a machine, and he would remand for a hearing on the merits of the citation.   However, since we both agree that a remand is necessary, and so that an order of a majority of the Commission may issue, cf. Shaw Construction, Inc. v. O.S.H.R.C., 534 F.2d 1183 (5th Cir. 1976), he agrees to remand the case to permit the record to be supplemented and to allow the Judge to make the initial determination as to the standard's applicability.

Accordingly, the Judge's decision is set aside, and the case is remanded for further proceedings consistent with this decision.