OSHRC Docket No. 77-4476

Occupational Safety and Health Review Commission

May 28, 1982


Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.


Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Charles R. Vickery, Jr., for the employer

Bob Few, Coordinator, IUE Local 1008, for the employees




The primary issue in this case is whether compliance with the machine guarding standards at 29 C.F.R. 1910.212 is required during inspection, cleaning and maintenance of a powder compacting press. Administrative Law Judge Henry F. Martin, Jr., held that section 1910.212 is inapplicable during these operations, and vacated a citation alleging that Respondent, General Electric Company ("GE"), had willfully failed to comply with either sections 1910.212(a)(1) or 1910.212(a)(3)(ii). n1 He also found that the Secretary of Labor failed to establish a violation of 29 U.S.C. 654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Secretary sought discretionary review; Commissioner Cleary directed review under section 12(j) of the Act, 29 U.S.C. 661(i), on the issues raised by the petition, including:

1. Whether the administrative law judge erred in vacating a complaint [*2] alleging that an employee of General Electric Company used a machine the point of operation of which was not guarded as required by the standard at either 29 CFR 1910.212(a)(1) or 29 CFR 1910.212(a)(3)(ii) on the ground that compliance was not required because the employee was performing maintenance, not operating the machine; and

2. Whether the administrative law judge erred in vacating the complaint alleging a violation of section 5(a)(1) . . . on the grounds that General Electric Company did not have knowledge of the alleged hazard and that the alleged violation was caused by an employee's failure to take available and known precautions to prevent creation of the alleged hazard.

We reverse Judge Martin's decision.

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n1 Section 1910.212(a) states in part:

1910.212 General requirements for all machines.

(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.

(3) Point of operation guarding.

(i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(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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GE manufactures tungsten carbide products at its plant in Houston, Texas. An initial step in this process is the compression of metallic powder into puckshaped cakes. Two Baldwin-Lima-Hamilton compacting presses are used to produce the cakes. The presses are operated from a control panel with many buttons. To activate the rams, three power buttons (the master power switch, the oil pump switch, and the drive motor switch) and engaged, and then the "start cycle" switch is engaged. A switch operated by a key ("the press selector switch") allows the operator to choose between a run (production) mode and a jog mode. The jog mode permits the operator to "inch" the rams, and is selected by turning the key of the press selector switch. In the jog mode, the rams may be advanced to a specific position for inspection and maintenance by depressing two "inch" buttons on the control panel. In the run mode the press runs at constant speed. The press is designed to operate in the run mode only when a metal guard surrounding the point of operation is in place and pressing on a microswitch. The guard must [*4] be removed to clean the machine, to inspect the molds on the ram and to replace the molds. When the guard is removed, the microswitch, which is nine inches from the rams, is released and the power is shut off. To start the press after the guard has been removed, the power buttons must be turned on, and the microswitch manually pressed down. If the power buttons are left in the "on" position, and the press selector switch is in the run position, the press will start up as soon as the microswitch is pressed down.

At the time of the inspection, the cited press could not be operated in the jog mode in the usual way because the key for the press selector switch was broken off in the run position. The inch buttons therefore could not be used. There were, however, two additional ways to jog the press' rams. One method involved turning the "start cycle" switch on and off in rapid succession in order to start and stop the production cycle. The second method involved starting the press, removing the guard, and depressing the microswitch intermittently.

On September 16, 1977, the operator of the press, Linn, was shown what was suspected to be a broken piece of mold. The press had been [*5] stopped and Linn removed the guard in order to check the mold, which is attached to the rams. Linn engaged the power buttons, and then jogged the ram with the microswitch in order to align the bottom ram in a suitable position for inspection. Linn then reached in between the rams to check the bottom mold. Linn stated that as he was removing his hand, he must have brushed the microswitch; the press jogged and crushed three of his fingers. n2

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n2 Linn testified that he pressed the off button on the control panel and then tested the microswitch to be certain that the power was off. The judge disbelieved that testimony.

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Judge Martin vacated the citation. He found that the press was adequately guarded during its production cycle and, citing Jersey Steel Drum Manufacturing Corp., 75 OSAHRC 36/E9, 2 BNA OSHC 1663, 1974-75 CCH OSHD P19,392 (No. 1119, 1975), held that the cited machine guarding standards were inapplicable during cleaning or maintenance operations. The judge found that cleaning and maintenance could [*6] not be accomplished without removing the guard, and that no evidence had been presented to show that a guard could be installed that would have permitted the press operator to inspect the mold. The judge also found that Linn was aware of company safety rules, which required the press operator to shut the power off during cleaning operations, and that Linn had instructed several other press operators to observe the power-off rule. Judge Martin found that GE had no knowledge of the broken key in the press selector switch, and had no reason to anticipate that Linn would disobey the safety rule by placing his hand in the mold while the power was on.

On review, GE maintains that it did not violate either of the cited machine guarding standards. It claims these standards apply only to points of operation, and that the definition of point of operation indicates that a point of operation does not exist during inspection, cleaning or maintenance. n3 GE also argues that it adequately provided for employee safety during cleaning and inspections by providing "power-off" switches. It contends that the Secretary's interpretation of the machine guarding standards would make cleaning and maintenance [*7] impossible, because under that interpretation the guards could not be removed. GE also points to testimony by the compliance officer that GE's safety rules met OSHA requirements.

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n3 Although GE relies upon the definition in section 1910.211(d)(45), that definition pertains only to terms used in section 1910.217, which was not cited here. We shall consider GE's argument with respect to the similar definition in section 1910.212(a)(3)(i), however.

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The Secretary contends that the Commission should adopt the rationale suggested by the dissenting opinion in Jersey Steel Drum, and apply section 1910.212 to maintenance and inspection because those functions are frequently performed on the powder press and constitute an integral part of GE's production operation. The Secretary claims that a point-of-operation hazard existed in that the broken press selector switch made it necessary for the operator to remove the guard in order to jog the press' rams with the microswitch. The Secretary argues that sections 1910.212(a)(1) [*8] and (2)(3)(ii) should apply "whenever a machine may be operating . . . as long as the employee exposure is reasonably foreseeable."

The Secretary also argues that the judge erred in finding that GE did not know that the press selector switch was broken, given the employees' testimony to the contrary. The Secretary maintains that, because the microswitch was frequently used to jog the press, GE could have known of the broken key with the exercise of reasonable diligence. The Secretary argues that GE's efforts to ensure the observance of safe work practices were minimal, and that GE therefore cannot argue that it did not know of the press' condition.


In Jersey Steel Drum, the Commission considered whether section 1910.212(a)(1) applied during maintenance of a drum hoop expander, but that decision contained no majority rationale. Only one member, former Commissioner Moran, found that section 1910.212(a)(1) was not designed to cover maintenance work. Former Commissioner Van Namee concurred on another ground. Commissioner Cleary dissented on the ground that section 1910.212(a)(1) was intended to protect all employees exposed to machine hazards, including machine hazards [*9] arising during maintenance. He emphasized that standards should be construed consistently with the statutory objective of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions." Section 2(b) of the Act, 29 U.S.C. 651.

We hold that section 1910.212 applies to machine hazards that arise during inspection, cleaning, and maintenance. We do so primarily because section 1910.212 establishes requirements for the protection of operators and other employees in the machine area from hazards without regard to whether such hazards are created during production or non-production operations. Section 1910.212 does not employ the terms "production" or "maintenance" or otherwise distinguish between production and maintenance. As the facts of this case clearly demonstrate, if a machine is activated during maintenance and commences its operating cycle, the operator can be exposed to injury in the same manner and degree as he can during ordinary production; the operating characteristics of this press were also not materially changed by the maintenance being performed. Therefore, in the absence of an express exclusion for maintenace activities, [*10] or other clear evidence of contrary intent, and in view of the standard's and the Act's remedial, protective purpose, we will not imply an exception to section 1910.212 that deprives employees of its protection. See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1833, 1978 CCH OSHD P22,909, p. 27,717 (No. 12523, 1978).

CE was cited in the alternative under section 1910.212(a)(1) and under section 1910.212(a)(3)(ii), the point of operation standard. We observe initially that, contrary to GE's argument, this case presents a point of operation guarding problem. Section 1910.212(a)(3)(i) defines "point of operation" as "the area on a machine where work is actually performed upon the material being processed." This provision identifies, in our view, only the location on a machine that is to be considered a point of operation and not, as "GE suggests, the occasions when a point of operation exists. See Dayton Tire & Rubber Co., 80 OSAHRC 95/D4, 8 BNA OSHC 2086, 2089, 1980 CCH OSHD P24,842, p. 30,636 (No. 16188, 1980); Boonville Division of Ethan Allen, 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 2171, 1979 CCH OSHD P23,219, p. 28,078 (No. 76-2419, 1978) (similar [*11] definitional section). Indeed, a contrary construction would lead to the absurd result that the point of operation appears and disappears as the material worked on is fed into and removed, even though the point-of-operation hazard is always present.

Both sections 1910.212(a)(1) and 1910.212(a)(3)(ii) address themselves to the hazard of an unguarded point of operation. Section 1910.212(a)(1) is a broader standard. It speaks of protecting "the operator . . . from hazards such as those created by point of operation," as well as other machine hazards. Section 1910.212(a)(3)(ii), by contrast, specifically addresses point of operation guarding. Inasmuch as the cited powder press posed a point of operation hazard, it appears that both standards apply, and were properly cited. Because this case concerns only a lack of point of operation guarding, and because it would be duplicative to find violations of both standards, we shall only apply section 1910.212(a)(3)(ii). n4

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n4 Because we find that a specific standard applies, citation to section 5(a)(1) of the Act is inappropriate. Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 2041, 1980 CCH OSHD P24,146, p. 29,342 (No. 76-2044, 1979). We therefore need not consider the Secretary's alternative allegation that GE violated section 5(a)(1).


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It is undisputed that the guard was removed during the maintenance operation, exposing the press operator to the unguarded point of operation. It is also established that, if the operator failed to shut the power off after the guard was removed, the rams could be activated by pressing the microswitch. Yet the only protection that GE provided the operator on those occasions when he was required to reach into the point of operation was a work rule that required the press' power to be shut off. Section 1910.212(a)(3)(ii), however, requires the employer to do more than merely establishing rules which, if followed, would render the work safe. The standard requires a "guarding device" to "prevent the operator from having any part of his body in the danger zone during the operating cycle." It rejects reliance upon the skill or attentiveness of employees, see Hughes Bros., 6 BNA OSHC at 1832, 1978 CCH OSHD at p. 27,716, and instead requires physical guarding methods that do not depend for their effectiveness on correct employee behavior. Columbian Art Works, Inc., 81 OSAHRC 96/F5, 10 BNA OSHC [*13] 1132, 1133 n.2, 1981 CCH OSHD P25,737, p. 32,102 n.2 (No. 78-29, 1981), and cases cited therein; H.B. Zachry Company, 80 OSAHRC 69/A2, 8 BNA OSHC 1669, 1674-5, 80 CCH OSHD P24,588, p. 30,166 (No. 76-2617, 1980); Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1963, 1979 CCH OSHD P24,074, p. 29,238 (No. 76-4520, 1979) ("standards is intended to protect against injury resulting from an instance of inattention or bad judgment"). Therefore, we find that GE did not comply with section 1910.212(a)(3)(ii).

We emphasize that the allegedly improper work practice of GE's press operator does not constitute the basis for our finding of noncompliance. The critical question in this case is not whether GE's workrule was followed, but whether GE had the guarding device required by section 1910.212(a)(3)(ii). The press operator's failure to obey GE's workrule, if indeed there was a failure, is therefore irrelevant.

We now examine whether the defense of impossibility of compliance has been established. In order to establish the impossibility defense, the employer must prove that: (1) compliance with the requirements of the cited standard either would be functionally impossible [*14] or would preclude performance of required work, and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1144, 1979 CCH OSHD P23,330, p. 28,227 (No. 15094, 1979). We find that the first element of the defense has not been established. Although the barrier guard that GE used during production could not be used during maintenance, GE presented no evidence that other guarding devices, such as the two-hand tripping devices and electronic safety devices mentioned in section 1910.212(a)(1), could not have been used to protect its employee. See F.H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA OSHC 1063, 1066-7, 1980 CCH OSHD P24,277, p. 29,574-5 (No. 12883, 1980). We also note that shortly after the accident involving the powder press, GE rewired the press' microswitch in such a way that the press could not be jogged with it. After the rewiring, the power automatically shuts off when the guard is removed, and the press cannot be cycled until the guard is replaced and the starting sequence repeated. These facts rebut GE's contention that guarding is impossible during maintenance.

We now turn to the questions [*15] of the proper classification of the violation and the assessment of an appropriate penalty. GE was originally cited for a willful violation. A violation is willful if it was committed with either an intentional disregard of the requirements of the Act or a plain indifference to them. Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1053, 1981 CCH OSHD P25,713, p. 32,060 (No. 77-2100, 1981). Because the judge vacated the citation, he did not resolve the willfulness question. In the interests of adjudicative efficiency, the Commission will make the necessary determinations itself instead of remanding. See Accu-Namics, Inc., 74 OSAHRC 35/A2, 1 BNA OSHC 1751, 1756, 1973-74 CCH OSHD P17,936, p. 22,234 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

The record before us does not demonstrate that GE acted with either intentional disregard of or plain indifference to the requirements of the Act. GE had supplied the power press with a barrier guard. If the guard were removed, power to the press would have automatically shut off. It also had a workrule which was intended to protect the operator. There is [*16] no evidence GE believed that the Act and the standards required more than what it provided. On the whole, we cannot say that GE disregarded or was plainly indifferent to the requirements of the Act. Accordingly, the willful characterization is vacated.

Where a violation is alleged to be willful but is not proved to be so, a serious violation may be found if the parties have expressly or impliedly consented to try the issue of whether the violation was serious. Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875, 1975). At the hearing, the compliance officer testified without objection that exposure to the unguarded point of operation posed a serious risk or injury. Also, the Secretary requested in his briefs to the judge and the Commission, and in his petition for discretionary review, that the violation be characterized as serious. The judge found that although the violation was pleaded to be willful, "it has been treated throughout the hearing as a willful[-]serious violation." GE has not objected to the Secretary's request. We therefore conclude that the parties tried the seriousness of the violation, and we amend the pleadings accordingly. [*17]

We find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). n5 The facts of this case demonstrate beyond question that, if an accident occurred, it would be substantially probable that death or serious physical harm would result.

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n5 Section 17(k) of the Act states:

For purposes of this section, 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.

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We now consider what penalty would be appropriate under these circumstances. In assessing a penalty, the relevant factors set forth in section 17(j) of the Act, 29 U.S.C. 666(i), are the gravity of the violation and the employer's [*18] size, good faith, and history of previous violations.

The Secretary introduced evidence at the hearing that GE employed 286,000 persons and held assets valued in the billions of dollars. GE demonstrated a good faith concern for employee safety by immediately remedying the hazard, and by issuing workrules in an effort to achieve a safer workplace. The gravity of the violation is moderate to high, considering the number of employees exposed to this press and the potential severity of an injury. Taking these factors together, we consider a penalty of $500 to be appropriate.

Accordingly, the judge's decision is reversed. Citation No. 2 is affirmed; the violation is found to be serious but not willful. A $500 penalty is assessed.




ROWLAND, Chairman, dissenting,

I dissent from the majority's conclusion that GE committed a serious violation of section 1910.212(a)(3)(ii). In my view, neither section 1910.212(a)(3)(ii) nor the alternatively cited standard, section 1910.212(a)(1), applies to the inspection, cleaning, and maintenance of GE's powder press. I further conclude that Judge Marin correctly vacated the alternatively alleged violation of section 5(a)(1) [*19] of the Act.

It is well settled that a standard is to be given a reasonable interpretation which reflects the plain meaning of its terms. Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977); Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976); Arkansas Rice Growers Cooperative Association, 10 BNA OSHC 1616 (No. 77-3974, 1982); Berglund-Cherne General Contractors, No. 79-4347 (Apr. 30, 1982). Consistent with this principle, a standard cannot be construed to mean what the drafters may have intended but did not express. E.g., Arkansas Rice Growers, supra, citing Diamond Roofing, supra.

Section 1910.212(a)(3)(ii) provides:

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

(Emphasis added.) As commonly understood, the words "operation" and "operating" mean functioning, producing and working. n6 The terms are not commonly understood to connote inspection, cleaning, or maintenance procedures. Significantly, [*20] no reference to maintenance is made in the cited standard. See Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157 (3d Cir. 1978) (standards cannot be interpreted to mean what the drafters did not express). Therefore, the plain meaning of the language in section 1910.212(a)(3)(ii) suggests that the standard applies only during the production cycle, not during the maintenance process. n7

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n6 Webster's Third New International Dictionary (1971) lists "functional" as a synonym for "operating" and defines "operating" as "engaged in some form of operation . . . esp: engaged in active business (as manufacture. . .)" "Operation" is described as "the quality or state of being functional or operative". ("Operative" is in turn defined as "engaged in doing work: occupied in productive labor: working.") Similarly, The American Heritage Dictionary of the English Language (1976) defines "operation" as "the state of being operative or functioning" and "a process or method of productive activity."

n7 While I agree with the majority that the definition of "point of operation" is section 1910.212(a)(3)(i) only identifies the location of the point of operation, which does not appear and disappear as material is fed and removed, I conclude that the terms of the cited standard - section 1910.212(a)(3)(ii) - further articulate when that standard's guarding requirements apply.


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Moremover, maintenance activities are substantially dissimilar from normal operations because during maintenance, employees are often required to remove the guard and enter the point of operation. Indeed, as the Secretary and the majority concede, GE's employees could not clean, inspect, or repair the broken mold with the barrier guard in place. Since conditions during inspection, cleaning, and maintenance are so unlike those during normal production, I conclude that the drafters of section 1910.212(a)(3)(ii) did not intend for the standard to apply to maintenance. See Ormet Corp., 81 OSAHRC 35/C3, 9 BNA OSHC 1828, 1831, 1981 CCH OSHD P25,322, p. 31,381-3 (No. 76-4398, 1981) (difficulty of compliance considered in interpreting standard); American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1310, 1982 CCH OSHD P25,899, p. 32,413 (No. 76-5162, 1982) (same).

The gravamen of the Secretary's case is not the failure to guard the point of operation but the failure to de-activate the power during maintenance. Yet the plain meaning of the standard at section 1910.212(a)(3)(ii) does not indicate [*22] that the standard is intended to encompass a power de-activation requirement. See former Commissioner Van Namee's observations on locking-out in Jersey Steel Drum, supra, 2 BNA OSHC at 1665, 1974-75 CCH OSHD at p. 23,155. Indeed, the Secretary has adopted standards that do require for some machines lockable main power switches, electrical de-activation, and specific measures to protect employees during maintenance. See section 1910.213(b)(5) ("positive means shall be provided for rendering . . . controls [of woodworking machines] operative while repairs or adjustments are being made. . . ."); and sections 1910.217(b)(8)(i) & (ii) (lockable main power switch shall be provided for every power press; motor start button shall be protected against accidental operation), (d)(9)(iv) (safety blocks for dies required during adjustment or repair of dies) and (d)(9)(v) (special tools required during lubrication). n8 If the Secretary seeks to impose a requirement on employers to electrically deactivate machines during inspection, cleaning, and maintenance, the Secretary has the means and the responsibility to do so by promulgating a specific standard. He cannot distort existing [*23] standards which by their plain meaning address different situations and encompass different requirements. See Bethlehem Steel Corp. v. OSHRC, supra. n9

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n8 Although GE's maintenance manager referred to the machine as a "mechanical press" once during the hearing, the record does not otherwise clearly show, and GE does not claim, that this machine is a mechanical power press governed by section 1910.217.

n9 After the citation was issued in this case, the Secretary issued an advance notice of proposed rulemaking to establish a broad lockout and tagging standard, which would require "deactivation of machinery, equipment, systems or processes while installation, repair, servicing and maintenance activites are being performed. . ." 45 Fed. Reg. 41012 (1980). In this notice, the Secretary referred to existing lockout-related provisions; the list did not include section 1910.212(a)(3)(ii). The Secretary further explained that a new regulation was contemplated no "add new material" because existing provisions were "incomplete". Id., at 41013.

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Nor do I find persuasive the majority's reliance on "the standard's and the Act's remedial, protective purpose." As the Ninth Circuit aptly stated, "mere citation to OSHA's remedial purpose . . . [cannot] substitute for analysis of the problem at hand." Marshall v. Anaconda Co., 596 F.2d 370, 377, n.6 (9th Cir. 1979). Moreover, the Commission is "bound to construe . . . regulations, not create them ourselves." Id. (emphasis in original). Since the plain meaning of section 1910.212(a)(3)(ii) indicates that the standard only applies during production, and since maintenance involves substantially different conditions, I conclude that section 1910.212( )(3)(ii) is inapplicable during maintenance of GE's powder press. n10 Accordingly, I would vacate the citation for an alleged violation of section 1910.212(a)(3)(ii).

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n10 The citation, the hearing and the review briefs are directed toward two operations: 1) the "jogging" process during which the rams are positioned for inspection; 2) the maintenance, cleaning, and inspection process durwhich the molds are manually checked for breakage. The majority fails to make this distinction.

Not only would I vacate the citation alleging a violation of section 1910.212(a)(3)(ii) with respect to the maintenance process, but I would also vacate the citation with respect to the "jogging" process. Section 1910.212(a)(3)(ii) requires point of operation guards but makes no reference to "jogging" or "inching" mechanisms. Hence the standard does not cover the broken selector key associated with the "jogging" procedure. In any event, the standard only requires that guards be "designed" and "constructed" whereas the Secretary was concerned that the jogging mechanism was not properly maintained in operable condition due to the broken selector key. See Air-Kare Corp., 81 OSAHRC 98/A2, 10 BNA OSHC 1146, 1981 CCH OSHD P25,758 (No. 77-1133, 1981) (dissent).


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I further conclude that the alternatively cited standard, section 1910.212(a)(1), does not apply. Commission precedent holds that a citation to a general standard is inappropriate when a more specific standard directly addressess the alleged hazard. Mississippi Power & Light Co., supra; See Ladish Co., 10 BNA OSHC 1235, 1237, 1982 CCH OSHD P25,820, p. 32,281 (No. 78-1384, 1981). This case poses a point of operation hazard and section 1910.212(a)(3)(ii) is the more specific standard addressing point of operation guarding. Cf. George C. Christopher & Sons, Inc., 10 BNA OSHC 1436, 1447, 1982 CCH OSHD P25,956, p. 32,534 (No. 76-647, 1982) (concurrence) ( 1910.212(a)(3)(ii) imposes a more specific requirement than 1910.212(a)(1) with respect to the problem posed by points of operation.) Since section 1910.212(a)(1) is therefore not specifically applicable, I conclude that Judge Martin correctly vacated the alleged violation of that standard. n11

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n11 I need not address the majority's contention that parties impliedly consented to try the seriousness issue, in light of my conclusion to vacate the citation.


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Because neither section 1910.212(a)(3)(ii) nor section 1910.212(a)(1) are applicable in my view, I turn now to the alternatively alleged violation of section 5(a)(1) of the Act. Having examined the evidence and accepting the judge's express credibility determinations, I conclude that Judge Martin properly vacated the citation for an alleged 5(a)(1) violation for the reasons he stated. n12 Therefore, I would affirm Judge Martin's decision.

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n12 As Judge Martin noted in his decision, the 5(a)(1) charge focused on the broken selector key (which allegedly made it impossible to "jog" or de-activate the press), not the failure to guard.

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