SECRETARY Of LABOR,
Complainant,

v.

MARMON GROUP, INC., d/b/a
DARLING STORE FIXTURES INC.,
Respondent.

OSHRC Docket No. 79-5363

DECISION

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

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The issue on review is whether former Commission Judge John S. Patton erred in concluding that Marmon Group's failure to comply with a machine guarding standard was not a willful violation of the Act.  For the following reasons, we affirm the judge's decision.[[1]]

Marmon Group has a workplace in Corning, Arkansas, where it manufactures store fixtures.  Numerous mechanical power presses are operated at this workplace, including one identified as press no. 5094, which is used to form brackets.  The point of operation on the machine is the area between the ram and the bed.  The press operator places the workpiece manually into the point of operation, activates the ram by stepping on the foot treadle or by simultaneously pressing two "palm buttons," and then manually removes the formed bracket.

The Secretary's machine guarding standards at 29 C.F.R. § 1910.217(c)(1)(i) require employers "to provide and insure the usage of 'point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press."  At various times, Marmon Group used a barrier guard, "two-hand controls" (i.e., the dual palm buttons), and a "pull-out device" on press no. 5094.[[2]]  Any one of these three precautionary measures is an acceptable and equivalent method of guarding under the standards.  However, when an employer relies on a pull-out device as the means of protecting the operator, it must comply with the following requirement of section 1910.217(c)(3)(iv)(d):

Each pull-out device in use shall be visually inspected and checked for proper adjustment at the start of each operator shift, following a new die set-up, and when operators are changed.  The citation is based on an allegation of failure to comply consistently with this requirement.

In July 1978, press operator Suzanne Maynard was injured on press no. 5094 when three fingers were crushed.  At that time the method of guarding provided by Marmon Group was a pull-out device with detachable hand straps.  Marmon Group's investigation of the accident disclosed that the pull-out device had been functioning properly and was properly adjusted, but that the likely cause of the accident was the operator's failure, upon returning to her work station, to reconnect the hand strap on her left hand to the pull rope before resuming operation of the press.

In February and March 1979, OSHA conducted a workplace inspection.  At the time of the inspection, Marmon Group was using a barrier guard on press no. 5094 rather than the pull-out device.  However, the compliance officer determined that the barrier guard was improperly adjusted because it did not prevent entry into the point of operation.  The Secretary included this violation in a citation alleging various violations of the machine guarding standards.  None of the citation items involved pull-out devices.

In April 1979, OSHA conducted a second inspection of the workplace.   This included an investigation of Marmon Group's policies and practices concerning the use of pull-out devices.  The employer's representatives explained to the compliance officer that the devices were checked for proper adjustment whenever the dies were changed on the press, at the beginning of each shift, and whenever there was a change in operators.  The adjustment check consisted of bringing the ram down into the closed position, placing the operator into the pull-out device, calculating the distance from the ends of the operator's extended fingers to the point of operation, and adjusting the straps if necessary so that the hands could not be within the point of operation as the dies closed.  The compliance officer informed Marmon Group that the procedures were in compliance with the mechanical power press standards.

Marmon Group assigned to its assistant foremen or "set-up men" the responsibility for complying with these inspection procedures and trained them to carry out this responsibility.  In addition, Marmon Group attached an inspection check-off sheet to every press that used a pull-out device.  At the top of these sheets, Marmon Group set forth a statement of its policy, which accurately paraphrased the standard's requirements.  The assistant foremen were instructed to record on these check-off sheets each of the required inspections when they occurred and the assistant foremen thereafter entered notations on the sheets indicating that these instructions had been followed.  There is no evidence that any member of management was aware of any incident in which an assistant foreman failed to conduct a required inspection of a pull-out device or falsely recorded an inspection that had not occurred.

In June 1979, two months after Marmon Group's most recent OSHA inspection, another press operator, Crystal Sutton, was injured when two fingers on her left hand were crushed in the point of operation on press no. 5094.  Marmon Group's investigation of this accident indicated that the operator was using the pull out device, that it was functioning properly, and that it was adequately adjusted to keep the operator's hands out of the area where the upper die contacts the stationary lower die.  After considerable experimentation in an effort to determine how the operator could possibly have been injured under these circumstances, Marmon Group concluded that a new "pinch point" was created when the workpiece was improperly placed in the point of operation in a particular tilted manner.  This new pinch point was three inches higher than the normal pinch point.  Prior to this investigation, no one was aware that it was even possible for the workpiece to be positioned improperly in the point of operation.

As a result of this accident, OSHA again inspected the workplace and issued a citation which alleged that Marmon Group failed to properly adjust the pull out device on press no. 5094 on the date of Crystal Sutton's injury.[[3]]  At the hearing, assistant foreman Rodney Smith testified that he had consistently complied with his employer's policy by checking the adjustment of pull-out devices whenever a new operator was assigned to a press, that this check consisted of a determination that the device was properly fitted to the particular operator, and that the check always occurred before press operations began.  However, four press operators under Smith's supervision testified that, prior to Crystal Sutton's accident, Smith had never checked to see whether the pull-out devices they were wearing were properly adjusted.  Press operator Sutton directly contradicted Smith's testimony that he had determined on the morning of her injury that the pull-out device on press no. 5094 was properly adjusted to fit her.

In his decision, Judge Patton noted the conflicts in the record and resolved them by crediting the testimony of the press operators. Thus, he sustained the specific allegation that the pull-out device on press no. 5094 had not been properly adjusted for use by press operator Sutton on the day of her injury.  Judge Patton further found that, although Marmon Group's policy was to have the pull- out devices checked before operation of the presses, the employer did not adequately enforce its policy.  Based on this finding, he concluded that Marmon Group had committed a serious but not a willful violation of the Act.

On review, the Secretary argues that the judge erred in vacating the willful charge.  He asserts that "Respondent's long and consistent record of disregarding the standard at issue not only establishes a pattern and practice of total disregard for employee safety, it establishes an obvious, conscious, intentional and voluntary decision to ignore safety regulations to the detriment of its workers."   Having reviewed the record in this case, we affirm the judge's conclusion that the violation was not willful.

To establish that a violation was willful, the Secretary must prove that it was committed with an intentional disregard of or a plain indifference to the requirements of the Act.  It is not enough for the Secretary simply to show a lack of diligence or carelessness in failing to discover or eliminate a violation.  On the contrary, where the record establishes that the employer has made a good faith effort to comply with a standard or to eliminate a hazard to its employees, a willful charge is not justified even though the employer's efforts are not entirely effective or complete.  Mobil Oil Corp., 83 OSAHRC ___, 11 BNA OSHC 1700, 1983 CCH OSHD ¶ 26,699 (No. 79-4802, 1983), and cases cited; Mosites Constr. Co, 81 OSAHRC 40/A2, 9 BNA OSHC 1808, 1812, 1981 CCH OSHD ¶ 25,357 at p. 31,494 (No. 78-50, 1981) ("[A]lthough Respondent could have known of the . . . violation] with the exercise of reasonable diligence, its lack of diligence is not characterized properly as willful."); Wright & Lopez, Inc.., 80 OSAHRC 36/A2, 8 BNA OSHC 1261, 1980 CCH OSHD ¶ 24,419 (No. 76-3743, 1980), petitions withdrawn, Nos. 80-1569 & 80-1704 (D.C. Cir., July 23, 1981, and Sept. 17, 1980).   Thus, for example, the Commission has declined to impute a foreman's willful violation to his employer where the foreman's behavior was contrary to a consistently and adequately enforced work rule. Chesapeake Operating Co., 82 OSAHRC 36/C9, 10 BNA OSHC 1790, 1982 CCH OSHD ¶ 26,142 (No. 78-1353, 1982).

Here, the record establishes that Marmon Group had a history of good faith efforts to comply with the mechanical power press standards and to protect its press operators from point of operation hazards.  For example, Marmon Group replaced all of its pull-out devices with safer devices following the injury to Suzanne Maynard even though its investigation concluded that Maynard would have been fully protected if she had used the existing device, requested OSHA to evaluate its protective measures, and promptly abated violations brought to its attention.  Marmon Group also unambiguously required the assistant foremen to check the pullouts as required and took measures to assure that the assistant foremen carried out their duties.  The Secretary did not establish that Marmon Group's efforts to implement its policy were so defective as to constitute a plain indifference to or an intentional disregard of the standard's requirements.  Contrary to the Secretary's argument, the July 1978 accident, the February-March and April 1979 inspections, and the March 1979 citation did not place Marmon Group on notice, prior to the injury to Crystal Sutton, that its safety program was defective.

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUL 19 1984


ROWLAND, Chairman, concurring in part and dissenting in part:

I join the majority in holding, for the reasons stated in the lead opinion, that Marmon Group's failure to comply with 29 C.F.R. § 1910.217(c) (1)(i) was not a willful violation of the Act.  However, in my view, the majority fails to follow its analysis through to its logical conclusion, that is, that Marmon Group should not be held responsible for any violation of the Act.  Accordingly, I dissent from the majority's decision to affirm a serious violation and assess a penalty of $1000.

Under Commission precedent, whenever the Secretary alleges a violation of the Act, he must prove as part of his case-in-chief that the employer knew or with the exercise of reasonable diligence could have known of the violative condition.  L.M. Sessler Excavating & Wrecking, Inc., 84 OSAHRC ___, 11 BNA OSHC 2007, 1984 CCH OSHD ___ (No. 79-2168, 1984), citing Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1869, 1981 CCH OSHD ¶ 25,358, p. 31,500 (No. 16147, 1981).   Here the Commission has correctly vacated the willfulness allegation based on the evidence of Marmon Group's extensive good faith efforts to comply with the machine guarding standards.  However, it is this same evidence that is critical in determining whether Marmon Group could have known of the violation with the exercise of reasonable diligence.  Nevertheless, the majority does not address the knowledge issue, noting instead that Marmon Group did not object to the judge's decision and review was limited to the issues raised by the Secretary.

I would not restrict the Commission to consideration of a single narrowly-drawn issue when that issue is intertwined with other issues in the case.   By focusing solely on the issue of willfulness, the Commission has artificially fragmented Marmon Group's contest of the citation and its own consideration of the controversy.  See Dun-Par Engineered Form Co., 84 OSAHRC ___, 11 BNA OSHC 1912, 1984 CCH OSHD ¶ 26,883 (No. 79-2553, 1984) (Rowland, Chairman, dissenting).

Moreover, unlike the Federal Rules of Appellate Procedure, see Rule 4(a)(3), the Commission's Rules of Procedure do not provide a procedure whereby a party can petition for review if the other party has filed a petition and obtained review.   For this reason, the nonpetitioning party may be denied the opportunity to request examination by the Commission of issues decided adversely to it that it wishes to have considered only if the case is otherwise directed for review.  In my view the Commission Rules should provide for a cross appeals procedure.  Until such time as this is done, I would not preclude review of issues that are closely related to the issues on which review has been directed.[[1]]

Turning to the knowledge issue, I first note that the noncompliance shown on this record is the misconduct of a single assistant foreman who apparently not only knowingly failed to conduct adjustment checks that were required by his employer but also successfully concealed his omissions by falsely recording that the checks had been conducted.  As stated in the lead opinion, there is no evidence that any member of management had actual knowledge of the assistant foreman's actions or omissions.   Moreover, as found by the majority, none of the events preceding Crystal Sutton's injury placed Marmon Group on notice of any defect in its safety program.  With respect to the inspection of pull-out devices, Marmon Group's safety program was exemplary.  Marmon Group had adopted an unambiguous policy that fully implemented the requirements of the Secretary's inspection standard, clearly communicated its policy to the assistant foremen who were responsible for carrying it out, trained these employees in the specific inspection procedures, provided check-off sheets on the presses as a means of determining whether its instructions were being followed and as a reminder to the assistant foremen of their responsibilities, and provided walkaround tours by a management-level supervisor to determine whether the pull-out devices were operating effectively.  On this record, I conclude that Marmon Group had in fact exercised reasonable diligence and therefore could not have known of the violation.  I would vacate the citation for that reason.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The judge found that the violation was serious but not willful, and assessed a penalty of $1000.  The Secretary petitioned for review on the willfulness issue; Marmon Group, the party aggrieved by the judge's affirmance of the citation, did not petition for review of the judge's decision.  Neither party disputes the judge's determination that $1000 is an appropriate penalty if the violation is not found to be willful.  Review was directed on the issues raised by the Secretary.  Since Marmon Group has not objected to the judge's decision, we reach only the issue of whether the violation was willful.

[[2]] As defined at § 1910.217(c)(3)(iv), a pull-out device is attached at one end to the movable ram and at the other to the operator's hands.  It must be adjusted to restrain the operator from reaching into the point of operation while the dies are closing or forcibly withdraw the operator's hands if the operator fails to remove them before stepping on the foot treadle and activating the press.

[[3]] The compliance officer noted, however, that the alleged violation had already been abated by the time of his inspection.  Thus, the press operator was not only wearing a properly adjusted pull-out device but also using the two-hand controls.  A follow-up inspection in September 1979 confirmed that the violation had been abated and that the employer was in compliance with the machine-guarding standards.

[[1]] In view of the Commission practice of limiting the scope of review to the issues on which review has been directed, I attach no significance to Marmon Group's failure to raise the knowledge issue in its brief to the Commission.  It is not surprising that the employer strictly limited its brief to the issue stated in the direction for review.