IRVINGTON MOORE, DIVISION OF U.S. NATURAL RESOURCES, INC.

OSHRC Docket No. 3116

Occupational Safety and Health Review Commission

April 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The only issue remaining in this case is whether Respondent (Irvington Moore) is required by 29 C.F.R. 1910.212(a)(3)(ii) to provide a point of operation guard on a Cincinnati press brake. The hearing judge held that it is not so required and he therefore vacated the Secretary's citation for serious violation to the extent it makes such allegation. n1 For the reasons that follow, we reverse as to the press brake allegation and we adopt the remaining portion of his report.

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n1 By the same citation the Secretary also alleged that Irvington Moore had violated the standard by failing to provide a point of operation guard on a Wysong iron worker. The judge vacated finding that a guard was provided. Neither party assigns error to this finding; consequently, we will affirm.

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It is undisputed that Irvington Moore did not guard the point of operation of its press brake, and it is agreed that the press brake is a mechanical [*2] power press. By way of defense, it is said that section 212 cannot require point of operation guarding because section 217 sets forth specific requirements for mechanical power presses and press brakes are specifically excluded from such requirements by the terms of paragraph 217(a)(5).

But the argument ignores the fact that according to 29 C.F.R. 1910.5(c)(2) the Secretary intended general standards to apply in those situations where particular standards do not apply. Thus, section 217 specifies particular standards for mechanical power presses whereas section 212 is entitled "General Requirements for all Machines." Since press brakes are specifically excluded from the requirements of section 217, n2 they must either be covered by the terms of section 212 or not at all by the Secretary's standards.

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n2 Paragraph 217(a)(5) provides, in part

Excluded machines. Press brakes . . . are excluded from the requirements of this section.

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Section 212 applies to all "machines" and according to paragraph 212(a)(1) [*3] requires that

One or more methods of machine guarding shall be provided to protect the operator . . . from hazards such as those created by point of operation. . .

The cited standard (212(a)(3)(ii)) provides, in part

The point of operation of machines whose operation exposes an employee to injury, shall be guarded.

And as if that were not enough, section 212(a)(3)(iv) provides, in part

The following are some of the machines which usually require point of operation guarding . . . (d) power presses.

In view of these provisions section 212 clearly prescribes point of operation guarding regulations for power presses to the extent they are not covered by section 217. Point of operation guarding for press brakes is therefore required under section 212 and according to its terms. n3

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n3 Irvington Moore also argued that press brakes were not within section 212 because the American National Standards Institute (ANSI) did not develop a standard for such machines until 1973. However that may be, it is irrelevant. Section 212 was derived from an established Federal standard (see 29 C.F.R. 1910.221) promulgated under the Walsh-Healey Act (41 U.S.C. 35 et seq. ). And it is the intent of the agency which promulgated the source standard (in this instance, the Secretary) that is relevant.

[*4]

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Irvington Moore next argues that section 212 is constitutionally infirm for being vague. n4 In this regard it argues that section 212 taken with section 217 creates an ambiguity. There is no merit in the argument. Section 217 plainly excludes press brakes and section 212 plainly includes power presses. Irvington Moore concedes that a press brake is a power press. Clearly, there is no ambiguity.

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n4 the views of each Commissioner on the question of our authority to declare a standard vague are expressed in Santa Fe Trail Transportation Co., 5 OSAHRC 840, BNA 1 OSHC 1457, CCH E.S.H.G. para. 17,029 (1973), rev'd. on other grounds, Brennan v. OSHRC, et al, 505 F.2d 869 (10th Cir., 1974).

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Finally, it is said that the press brake was adequately guarded because employees who adhere to Irvington Moore's procedures for operating the machine will not be exposed to the point of operation hazard. Thus says Irvington Moore, [*5] when employees hold large aluminum panels with both hands, they will be remote from the point of operation. And similarly they will be remote when forming channels using small pieces of metal if they employ a cord extended foot operated pedal. However, it is conceded that if the foot pedal is not used, the employee's hands will be within three inches of the point of operation.

In these circumstances we find that the press brake was not adequately guarded at the point of operation. According to the cited standard a proper guard must be of such design and construction as to

. . . prevent the operator from having any part of his body in the danger zone during the operating cycle.

Since the operator in the circumstances can choose to use or not use the foot pedal for forming channels, it cannot be said that the pedal will prevent exposure to the hazard. We conclude that the standard was violated.

The parties stipulated that the violation was serious within the meaning of 29 U.S.C. 666(j). We agree. There is no question that amputation of a hand or hands could be the result of an accident.

We turn now to the matter of an appropriate penalty. The Secretary proposed $700, but [*6] the proposal was made for a combination of allegations involving the press brake and the iron worker. See note 1. On the facts since the press brake was used principally for forming large panels we conclude that the likelihood of an accident was low to moderate. But in view of the potential serious consequences we conclude that the gravity is moderate. Irvington Moore is a reasonably large employer and it has been previously cited. In mitigation, however, it does have a good safetv program and the question presented by the case was substantial. On balance, we conclude that a penalty of $350 is appropriate.

Accordingly, the citation for serious violation is affirmed insofar as it alleged a violation of 29 C.F.R. 1910.212(a)(3)(ii) regarding an unguarded press brake, a penalty of $350 is assessed for such violation, and the judge's report is hereby adopted in all other respects as the decision of the Commission. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition ofthis case by Commissioner Van Namee on the issue of what standard applies to the operation of press brakes. It is helpful to observe that the source of section [*7] 1910.212 is a rule adopted by the Secretary of Labor under the Walsh-Healey Act at 41 CFR 50-204.5. The source of section 1910.217 is ANSI B11.1-1971; Safety Standard for Construction, Care for and use of Mechanical Power Presses. The sources of the standard are indicated in section 1910.221. The former is an "established Federal standard" and the latter is a "national consensus standard." Both standards were adopted under section 6(a) of the Act which in relevant part reads as follows:

. . . the Secretary shall . . . promulgate as an occupational safety and health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

Section 6(a) itself provides for the resolution of conflicts between standards and that such resolution be in favor of greater safety and health protection. There is no conflict in this case, however, because [*8] section 1910.217, as it relates to press brakes, is not a "standard." The term "standard" itself is not defined in the Act, but we know from the broader definition of the term "occupational safety and health standard" in section 3(8) that the term contemplates essentially a substantive rule describing requirements necessary to provide safety and health. Cf. Florida Peach Growers Association, Inc. v. U.S. Department of Labor, 489 F.2d 120 (5th Cir. 1974). There is, therefore, no question under the rules of construction in section 1910.5(c) as to whether a general standard or specific standard applies. There is only one "standard" that can be applicable to press brakes because the exemption of press brakes in section 1910.217 means that no part of that section can be a "standard" for press brakes.

I would note that respondent argues that the coverage of press brakes under section 1910.212 creates "illogical imbalance" between press brakes and other mechanical power presses in terms of the effective date requirements of the two sections. In essence, respondent complains that press brakes are subject to more rigid requirements than other types of power presses. [*9] See Stevens Equipment Co., No. 1060 (April 27, 1973). The argument is not persuasive because, if respondent needs particularized relief in the way of more time to comply with the standard, it may be requested under section 10(c) of the Act. That provision allows an employer to petition for an extension of time for abating a hazard.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I believe the Commission has misconstrued its adjudicatory role n5 in order to hold this respondent in violation of 29 U.S.C. 654(a)(2) for failure to provide a point of operation guard on a press brake.

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n5 29 U.S.C. 651(3); Secretary v. Wetmore and Parman, Inc., 2 OSAHRC 288 (1973).

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My colleagues concluded that this condition failed to comply with the occupational safety and health standard codified at 29 C.F.R. 1910.212(a)(3)(ii), which provides in pertinent part that

[t]he point of operation of machines whose operation exposes an employee to injury, shall be guarded.

Respondent stipulated that its press brake had no point [*10] of operation guard. At issue, however, is whether 29 C.F.R. 1910.217, which specifically applies to power presses, n6 removes power brakes from the coverage under the general standard 1910.212(a)(3)(ii). I believe it does.

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n6 Respondent stipulates, and the Commission concludes without explaining their reasons therefor, that a "press brake" is a "power press," and thus within the meaning of 29 C.F.R. 1910.217. I find no definition of "press brake" in complainant's standards from which to so conclude. I must also point out that stipulations on issues of law are not binding on a court. See Sanford's Estate v. Commissioner of Internal Revenue, 308 U.S. 39, 47, 60 S. Ct. 51, 59 (1939); Swift & Co. v. Hocking Valley Railway Co., 243 U.S. 281, 289, 37 S. Ct. 287, 289 (1917).

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29 C.F.R. 1910.5(c)(1) provides that

[i]f a particular standard is specifically applicable n7 to a condition . . . operation, or process, it shall prevail over any different general standard which might otherwise [*11] be applicable . . . . (emphasis added)

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n7 "Applicable" means "that [which] can be applied; suitable." To "apply" means "to have to do with or be suitable to." Webster's New World Dictionary, 1966.

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The Commission impliedly concedes that 1910.217 "specifically appli[es]" to respondent's press brake. Despite complainant's directive in 1910.5(c)(1), they conclude, 1910.217(a)(5) n8 excludes press brakes from coverage under that section.

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n8 1910.217(a)(5) provides:

"Excluded Machines. Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending and hot metal presses . . . are excluded from the requirements of this section."

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I submit that our adjudicatory role requires only that a determination be made whether or not "a particular standard is specifically applicable" here. If we find that it is, complainant has promulgated [*12] a directive that the specific standard takes preference over the general, irrespective of what he decided to do in the specific standard with the "condition, . . . operation, or process." That directive is set forth in 29 C.F.R. 1910.5(c)(1).

It is therefore evident that the Commission's action of substituting its judgment of whether or not to have a general standard apply when complainant specifically decided to exclude coverage, effectively usurps the function delegated to the Secretary. 29 U.S.C. 655(a), (b), and (c). The wisdom of this exclusion is not a matter for our concern. See Secretary v. The Budd Company, 7 OSAHRC 160, 165 (1974); A.T. & T. v. United States, 299 U.S. 232, 236-237 (1936); Gray v. Powell, 314 U.S. 402 (1942); Radio Corporation of America v. United States, 341 U.S. 412 (1951). I therefore believe that the decision below should be affirmed.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting two "serious" n1 and one "non-serious" n2 citations issued by [*13] the Complainant (Secretary) against the Respondent (Employer) on May 4, 1973, under the authority vested in Complainant by Section 9(a) of that Act. Respondent has also contested the penalties proposed for certain of the violations alleged therein. The citations allege that an inspection of a workplace under the ownership, operation or control of the Respondent, located at 8205 S.W. Hunziker, Tigard, Oregon and described as a "sawmill and lumber handling manufacturing operation," on March 30, 1973 disclosed that Respondent had violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of labor pursuant to Section 6 thereof.

The first citation, designated Citation for Serious Violation No. 1, alleged that Respondent violated the standard n3 appearing at 29 CFR 1910.212(a)(3)(ii) in the following language:

One Cincinnati Press Brake, Serial #38055 -- rated capacity 225 ton -- 9 Series X 14' 3" stroke, and located in Building #3, was not equipped with a point of operation device or guard.

A "Wysong" Ironworker located in Building #3 was being used by one employee to snip off corners of sheet [*14] metal, and was not equipped with point of operation guards.

The standard appearing at 1910.212(a)(3)(ii) provides:

(ii) 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 therefor, 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.

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n1 Section 17(k) of the Act provides that

"A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

n2 The Notice of Contest in the record (J3) does not contain a copy of the non-serious citation, indicating the possibility that it may not have been contested. However, a stipulation of the parties received into the record at the hearing states that the non-serious citation was properly contested. In any event, Respondent's contest of the non-serious citation may not now be challenged by the off-the-record allegations. See Judge's Exhibit 15 (P8); Secretary's Post Trial Brief and Affidavit; and Respondent's Reply Brief.

n3 Section 5(a)(2) of the Act provides each covered employer "shall comply with occupational safety and health standards promulgated under this Act."

[*15]

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The second citation, designated Citation for Serious Violation No. 2, alleged violation of two standards as follows:

1) A Comet Radial arm 16" saw in Building #3 was not equipped with a guard "which covers the lower portion and sides of the saw blade" contrary to 29 CFR 1910.213(h)(1), and

2) a metal saw manufactured by Respondent and used for cutting of aluminum along the South wall of Building #3 "was not fitted with a guard which covers the sides of the lower portion of the blade" contrary to 29 CFR 1910.212(a)(1).

According to the citation, either one of the "above 2 instances . . . could alone be considered Serious." The Secretary's complaint deleted reference to 29 CFR 1910.212(a)(1) and alleged that Respondent's own metal saw manufactured for cutting aluminum was a radial saw and should have also been guarded as required by 1910.213(h)(1). After filing of the complaint, however, the Secretary moved to amend the complaint so as to again allege that Respondent's own aluminum cutting saw failed to comply with 1910.212(a)(1), the standard originally cited. The complaint, insofar as it relates [*16] to the Citation for Serious Violation No. 2, was amended n4 so it reads as follows:

2. Failure to guard the sides of the lower exposed portion of the blade of a Comet radial arm 16 inch saw located in Bldg. #3, to the full diameter of the blade by a device which will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed, contrary to 29 CFR 1910.213(h)(1). Also failure to provide one or more methods of machine guarding to protect the operator and other employees in the machine area from hazards such as those created by a point of operation, ingoing nip points, rotating points, flying chips and sparks in that a metal saw which was manufactured by respondent and used for cutting aluminum in Bldg. #3 was not provided with a guard which covers the sides of the lower portion of the blade, contrary to 29 CFR 1910.212(a)(1) (Citation for Serious Violation, Citation No. 2).

The standards appearing at 1910.213(h)(1) and 1910.212(a)(1) provide:

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that [*17] will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

(a) Machine guarding -- (1) Types of guarding. 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.

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n4 Respondent opposed any amendment that would "allege a different or greater violation than that alleged" in the citation.

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The non-serious citation contained eight individual charges or "Items." Respondent has admitted all of the allegations relating to the non-serious citation except those contained in Items 5, 7 and 8. n5

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n5 Non-serious Items 1, 2, 3, 4 and 6 alleged violation of 29 CFR 1910.157(d)(3)(i), 1910.22(b)(1), 1910.157(a)(3), 1910.22(a)(1) and 1910.37(q)(1), respectively. Items 4 and 6 were merged into one item in the complaint.

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Non-serious Item No. 5 alleges violation of 29 CFR 1910.215(a)(4) as follows:

The work rest on a Bench Grinder, #385502 located in building #2, was located over one inch from the grinding wheel.

The standard appearing at 1910.215(a)(4) reads:

(4) Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent [*19] the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. The adjustment shall not be made with the wheel in motion.

Non-serious Item No. 7 alleges violation of the standard appearing at 29 CFR 1910.110(h)(6)(ii)(b) as follows:

A "Pargas" LP tank located in the main yard of the plant did not have an adequate barricade or posts around it to prevent possible damage by vehicles which are used in the plant.

The standard appearing at 1910.110(h)(6)(ii)(b) provides:

(b) Containers shall be protected by crash rails or guards to prevent physical damage unless they are so protected by virtue of their location. Vehicles shall not be serviced within 10 feet of containers.

Non-serious Item No. 8 alleged violation of 29 CFR 1910.242(a) as follows:

Five employee-owned tool boxes, located in Buildings #1, #2, & #3 contained tools such as chisels and other impact tools and were found to be in an unsafe condition, having mushroomed heads on each tool.

The standard appearing at 1910.242(a) reads:

(a) General requirements. Each employer shall be responsible for the safe condition of tools [*20] and equipment used by employees, including tools and equipment which may be furnished by employees.

The Secretary prescribed abatement of each of these alleged violations put in issue by June 4, 1973 except that non-serious Items 5 and 8 were to be corrected immediately upon receipt of the citations.

Pursuant to the procedure set forth in Section 10(a) of the Act, the Secretary's representative, Area Director of the Portland Office of the Occupational Safety and Health Administration of the United States Department of Labor (OSHA), advised Respondent by a notice dated May 4, 1973, that penalties were being proposed as follows:

Serious Citation No. 1

$700

Serious Citation No. 2

700

Non-serious Citation No. 1

Non-serious Citation No. 2

Non-serious Citation No. 3

Non-serious Citation No. 4

Non-serious Citation No. 5

Non-serious Citation No. 6

Non-serious Citation No. 7

35

Non-serious Citation No. 8

Total

$1,435

After complaint and answer were filed, the case came on for hearing at Portland, Oregon on October 18, 1973. The Secretary and Respondent were represented by counsel. Respondent's employees, who are represented by Beaver Lodge 1432 Production Machinists [*21] I.A.M.A.W. of Portland, did not participate in the proceeding. Testifying for the Secretary were the inspecting OSHA compliance officer, Robert D.Langager, and an OSHA safety engineer, William Baily. In its defense Respondent called its shop foreman, Loyd Isbell; its production manager, Larry D. Campbell; and Marvin C. Ellis, the Safety Engineering Manager of Industrial Indemnity Insurance. The Secretary and Respondent have filed briefs or proposed findings of fact.

FINDINGS OF FACT

A. Jurisdiction and the Business of Respondent.

There is no question of Commission jurisdiction in this proceeding. The parties stipulated that (J 15):

1. Respondent is a corporation maintaining its principal place of business at 8205 S.W. Hunziker Road, Tigard, Oregon, and a workplace at said address and at all times relevant hereto was engaged in the manufacture of sawmill machinery.

2. Respondent is, and at all times relevant hereto was, an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act, in that it employed and is employing, employees in and about its aforesaid place of business in producing, handling [*22] or working on sawmill machinery, substantial quantities of which have been, and are being, sold, delivered or shipped to places outside the State of Oregon, or have been, and are being, sold or delivered for shipment, delivery or sale to places outside the State of Oregon.

3. Respondent employs approximately 190 employees in its aforesaid establishment at Tigard, Oregon, which include approximately 130 plant employees and 60 office employees.

4. Respondent grosses in excess of six million dollars annually.

B. The Evidence and Findings on the Charges.

(1) As to Citation for Serious Violation No. 1.

The Secretary alleges (Para. V-1 of complaint) that on the day of the inspection, March 30, 1973, two of Respondent's machines, viz., its Cincinnati Press Brake and its Wysong Ironworker, were not equipped with point of operation guards as allegedly required by 29 CFR 1910.212(a)(3)(ii).

The Cincinnati Press Brake. It was stipulated that the press brake was installed in December 1970 and had no point of operation guards at the time of the inspection (J 15, P11). The press brake is a large, mechanical device operated by four employees ( Id., P14). There are several photographs [*23] of the press brake in evidence taken after the inspection (Secretary's Exhibits 1, 2, 3 and 4; Respondent's Exhibits 3 and 4). The press brake is activated by a foot pedal and operates without automatic cycling -- i.e., one stroke at a time. It also has a "slow cycle" safety feature, which means that the ram slows down before striking the material, giving "reaction time for anybody that would be in the path." The press brake is used primarily to form 4' X 12' aluminum panels, but it is also occasionally used in performing two smaller operations -- i.e., as a punch press and in forming small channels. The former operation would bring an operator's hand to within about 2-1/2 feet of the die space. An operator's hand could come within 3 inches if he had to hold on to smaller pieces. (See testimony of foreman Isbell; also Compliance Officer Langager.)

OSHA Engineer Baily identified several devices that he believed could be used in guarding the Respondent's press brake (SXs 13-18). However, he had not seen a press brake like Respondent's, and he conceded that many of the devices he had identified could not, as a practical matter, be used on Respondent's press brake. The [*24] press brakes he had seen guarded were specially "tailored" to the machine and to the particular operator.

Respondent did not provide any point of operation guards on its press brake bocause it understood 29 CFR 1910.217(a)(5), a section dealing specifically with power presses, expressly provides that they were not required. n6 Section 217(a)(5) states that the guarding requirements for mechanical power presses do not apply to press brakes in the following language:

(5) Excluded machines. Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending and hotel metal presses, forging presses and hammers, riveting machines and similar types of fastener applicators are excluded from the requirements of this section.

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n6 See testimony of Production Manager Campbell.

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It does seem logical that if the Secretary had intended that press brakes should be governed by the general provisions of Section 212 (29 CFR 1910.212) a cross reference to Section 212 would have been included in Section 217(a)(5). Reading [*25] Section 217(a)(5) leads one to believe that regulations dealing with guarding of press brakes have not yet been devised or are at least not yet effective. And as Respondent points out, the newly promulgated (1973) ANSI standard for guarding of power press brakes (ANSI B11.3-1973) corroborates such notion. See Section 1.2 and "Forward" thereof (RX 11). n7

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n7 The general standard for machine guarding (Section 212) was not developed by ANSI, however. See 29 CFR 1910.221.

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Counsel for the Secretary argues that the inclusidon of "power presses" under Section 212(a)(3)(iv) as an example of machines requiring point of operation guarding "makes clear that Section 212's application to press brakes, a type of power press." If Section 212(a)(3)(iv) had specifically listed "press brakes" the argument would no doubt be persuasive. But the listing of "power presses" in Section 212 is not, especially when Section 217(a)(5) expressly excludes press brakes without any reference to another part of the Secretary's regulations. [*26]

Thus, the Secretary has not established that Section 212(a)(3)(ii) applies to Respondent's Cincinnati press brake, and the charge must, therefore, be dismissed. n8

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n8 The credible testimony was that the press brake did not operate that day. See testimony of Foreman Isbell and Production Manager Campbell; also OSHA Compliance Officer Langager.

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The Wysong Ironworker. The parties stipulated that one of Respondent's employees operated the Respondent's ironworker for about one to one and a half hours on the day of the inspection (J 15, P13).

The record indicates that an operator's hands could come within four to six inches of the point of operation. Three photographs of the ironworker, all taken after the inspection, are in evidence (SXs 5 and 6, RX 5). One of the photographs, Secretary's Exhibit 6, shows a yellow cover guard which the OSHA inspector concedes was on the machine on the day of the inspection. However, according to Compliance Officer Langager, the guard had to be "folded back over" before [*27] it could be operated. Mr. Langager said he observed the ironworker in use for about five minutes in notching small pieces of material.

Respondent's shop foreman and production manager said that the cover guard was on the machine when it was purchased, and that it had remained on it. The guard cover will lift and tip back to permit material to be fed into the machine.

Respondent's explanation with respect to the guarding of its ironworker is plausible and is accepted as the fact: The ironworker does possess a point of operation guard; Inspector Langager apparently observed the ironworker in use with its cover raised and assumed that there was no guard on the machine. The ironworker was equipped with a point of operation type of guard which is all that Section 212(a)(3)(ii) requires. The charge relating to the guarding of the Wysong Ironworker must, therefore, likewise be dismissed.

(2) As to Citation for Serious Violation No. 2.

The Secretary alleges that the failure to guard the lower portions of two separate saws on March 30, 1973, constituted a "serious" violation. One saw is referred to as a 16-inch Comet radial arm saw, and the other as an aluminum or metal cutting [*28] saw manufactured by Respondent. The Secretary cited Respondent's Comet saw under Section 213(h)(1) and, after some vacillation (see pp 3-5, supra ), Respondent's own metal cutting saw under Section 212(a)(1).

The parties stipulated that there was no lower guard on either saw, and that employees (seven in the case of the Comet saw, three with respect to the metal saw) had used the saws from 10 to 60 minutes per day for a year prior to March 30, 1973 (J 15, PP, 16 and 17). There are in the record four photographs of the Comet saw (SXs 7 and 8, RXs 6 and 7) and five photographs of the metal cutting saw (SXs 9 and 10, RXs 1, 2 and 8), all taken after the inspection. The photos of the Comet saw show a lower, circular aluminum guard added after the inspection. Respondent's Exhibit 2 shows the hood (on the left) used to guard the metal cutting saw as of the time of the inspection. Compliance Officer Langager testified that he did not see Respondent's Comet saw in operation but observed that it was "not equipped with a device -- or a guard that covered the sides and the lower portion of the saw blade." Mr. Langager did not recall seeing the metal cutting saw operate on March 30, [*29] 1973, but he thought at first that "a small portion" of the saw was covered by a hood which would not protect the operator from flying sparks and aluminum chips. It was ultimately agreed, however, that the former hood that was in place on the day of the inspection did afford as much protection as the new hood that was installed afterward.

The compliance officer felt that both saws presented amputation hazards. OSHA Safety Engineer Baily agreed that OSHA type guarding would not completely eliminate all risks of amputation and injury, but he felt that it should eliminate the "inadvertent accident" that would result when a hand or finger came into a saw blade from the side. n9

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n9 OSHA Safety Engineer Baily agreed that a lower OSHA type guard would not prevent a cut to a finger or hand brought into the path of the blade; also, that the former hood over the metal saw afforded essentially the same protection as the new one.

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Production Manager Campbell testified that neither Respondent's Comet saw nor its own metal cutting [*30] saw was used on the day of the inspection. Foreman Isbell testified that the OSHA prescribed guards were fabricated by Respondent for both saws after the inspection. According to Mr. Isbell, however, such OSHA guards increase the hazard of injury by concealing the blades on the saws. Respondent's employees have voiced complaints to this effect.

Careful review of the evidence discloses that the blades of the Comet radial arm saw and Respondent's own metal cutting saw were adequately protected by a covering guard or hood. The credible evidence is that the lower guarding of these saws as prescribed by the Secretary actually increased the risk of injury to employees rather than reduced it. It was never contemplated that the Occupational Safety and Health Act of 1970, or any standard promulgated under it, should impose a duty on an employer to perform an act that would increase the risk to his employees. J. H. Baxter & Company, Docket 2043, dated August 20, 1973. It follows that the charges contained in Citation for Serious Violation No. 2 must be dismissed.

(3) As to the Bench Grinder (Non-serious Item #5).

The Secretary alleges (Paragraph V-6 of the complaint) [*31] that Respondent violated 29 CFR 1910.215(a)(4) by failing to keep the work rest on a bench grinder adjusted to a maximum one-eighth of an inch from the wheel. OSHA Compliance Officer Langager originally testified that the opening between the wheel and work rest was one inch. He thought the condition could cause an employee to seriously cut or scrape his fingers. Mr. Campbell, Respondent's Production Manager, disagreed that there was a one-inch opening but did concede that the heel guard or rest was a quarter-of-an-inch from the wheel. According to Mr. Campbell, the guard could be set no more than 1/4" away, which he said the state law permits.

The record establishes a violation of Section 215(a)(4), even though it was not sustained as broadly as originally charged in the citation (i.e., "over one inch" opening).

(4) As to the LP Gas Tank (Non-serious Item #7).

The Secretary alleges (Para. V-8 of the complaint) that Respondent's "Pargas" liquified petroleum gas tank was not adequately protected by location, rails or guards as required by 29 CFR 1019.110(h)(6)(ii)(b).

Secretary's Exhibit 11, the only picture in evidence that was taken on the day of the inspection, [*32] shows the LP tank as it was on that day. Secretary's Exhibit 12 and Respondent's Exhibits 9 and 10 show the tank at a time subsequent to the inspection after it had been moved further back from the curbing and a metal barrier had been installed.

OSHA Inspector Langager testified that there was not a sufficient barrier guard to prevent vehicles from hitting the tank and causing an explosion or serious fire. He estimated the height of the curbing near the tank to be three inches.

Testifying on defense, Production Manager Campbell stated that the LP tank is used to service forklifts and was originally installed so as to comply with OSHA requirements. According to Mr. Campbell, the tank was placed six and one-half feet from the curbing, the latter being seven inches high and not three inches as the compliance officer testified. Mr. Campbell never knew of a truck, forklift or any other vehicle to jump the curbing or drive near the tank. In April 1973 after the inspection, however, he caused the metal barrier to be erected at the curbing and the tank to be moved about three feet further back from the curbing.

The Secretary points to what appear to be vehicle tracks near the tank [*33] in the Secretary's later photo (SX 12), indicating that a vehicle may have driven near the tank to be serviced. However, this may only demonstrate, if anything, that the original position of the tank was probably safer for the servicing of the forklift trucks. The Secretary also points to the fact that the earlier photograph (SX 11) indicates that there is no curbing on the pavement that runs approximately 20 feet away from one end of the tank. However, the chance of a vehicle traveling from that direction over the unpaved ground for 10 or so feet seems unlikely.

The record certainly demonstrates substantial compliance with the cited standard. Section 110(h)(6)(ii)(b) does not require crash rails or guards if the tank is adequately protected by its location. Non-serious Item #7 was not sustained by the evidence.

(5) As to "Mushroomed" Tool Heads (Non-Serious Item #8).

The Secretary alleges (Para. V-9 of the complaint) that Respondent failed to be responsible for the safe condition of tools used by employees "in that five employee-owned tool boxes, located in Bldgs. #1, 2 and 3, contained tools used by employees such as chisels and impact tools which were in an unsafe [*34] condition having mushroomed heads on such tools, contrary to 29 CFR 1910.242(a)."

Compliance Officer Langager testified that on the day of the inspection he examined tool boxes of Respondent's employees and showed one chisel to Mr. Campbell, Respondent's Production Manager. A piece of metal could fly, he said, into the eye from the mushroomed head if struck by a hammer.

Mr. Campbell testified that Compliance Officer Langager checked 12 or 15 tool boxes of employees, without their permission, and identified one employee-owned chisel as having a mushroomed head. Mr. Campbell and Respondent's foreman, Mr. Isbell, both testified that Respondent's employment does not require use of chisels. Mr. Isbell said that he does inspect impact tools (such as punches) used by employees on the job, and he had not discovered any seriously worn heads.

Respondent argues that it was never sufficiently informed what employee tools were defective under this charge. However, it was unnecessary to determine the adequacy of the charge contained in non-serious Item #8. The Secretary did not establish a violation of the cited standard by showing the existence of one work employee-owned tool which was [*35] not to be used in the course of Respondent's business, especially where there was no showing that Respondent had reason to know of the condition of the tool. See, Mountain States Telephone & Telegraph Co., Docket No. 355, dated January 3, 1973.

C. The Penalty

Assessment of a penalty need be considered only with respect to the one violation established, viz., the non-serious violation of 29 CFR 1910.215(a)(4), cited in Item #5 of the non-serious citation. The Secretary has sought no penalty for this item, and the evidence on this charge bears out the correctness of the Secretary's proposal. The gravity of the violation was low enough that assessment of any penalty would be inappropriate. For this reason, a detailed discussion of other factors relevant to penalty assessments under the Act is unnecessary. See General Meat Company, Docket No. 250, dated June 20, 1972 and J. E. Chilton Millwork & Lumber Company, Inc., Docket No. 123, dated May 15, 1972; cf. Broadview Construction Co., Docket No. 124, dated January 10, 1973. n10

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n10 Section 17(j) of the Act provides that an employer's "good faith," "size," "history" and the "gravity" of the violation are to be taken into account in assessing a civil penalty. The record demonstrates that Respondent has an effective safety program and is a conscientious employer with "good faith" concern for employees' safety (Langager; Campbell; Insurance Safety Engineer Ellis). Respondent is an employer of significant "size" (J 15, PP3, 4), and has a "history" of one previous final citation issued against it (J 15, Ex E).

[*36]

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CONCLUSIONS OF LAW

Based on the foregoing, the following conclusions of law are entered.

1. Respondent is now, and at all times material herein, an "employer" engaged in a business affecting commerce within the meaning of Section 3 of the Act.

2. The Commission has jurisdiction over the parties and the subject matter of this proceeding.

3. The Secretary did not establish any violation of the occupational safety and health standards appearing at 29 CFR 1910.212(a)(3)(ii); 1910.213(h)(1); 1910.212(a)(1); 1910.110(h)(6)(ii)(b); or 1910.242(a).

4. The Secretary established a non-serious violation of 29 CFR 1910.215(a)(4) on March 30, 1973.

5. No penalty is appropriate for the violation of 29 CFR 1910.215(a)(4).

6. Non-serious violation of 29 CFR 1910.157(d)(3)(i); 1910.22(b)(1); 1910.157(a)(3); and 1910.22(a)(1); and the appropriateness of no penalties therefor were established by admissions of the Respondent.

ORDER

Based on the foregoing, it is ORDERED:

1. The Citation for Serious Violation No. 1 and the Citation for Serious Violation No. 2, and the related penalties proposed [*37] therefor ($700 each), be, and the same are, hereby VACATED.

2. Items 1, 2, 3, 4 and 5 of the (non-serious) Citation No. 1 and related proposed penalties therefor (none) be, and the same are, hereby AFFIRMED.

3. Items 7 and 8 of the (non-serious) Citation No. 1 and the related proposed penalties therefor ($35 for Item #7 and none for Item #8), be, and the same are, hereby VACATED. n11

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n11 Non-serious Item #6 charging violation of 29 CFR 1910.37(q)(1) was deleted in the complaint.

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