SECRETARY OF LABOR,
Complainant,

v.

SKYDYNE, INC.,
Respondent,

THE AMALGAMATED CLOTHING AND
TEXTILE WORKERS UNION and its
LOCAL 1410,

Authorized
Employee
Representatives.

OSHRC Docket No. 80-5422

DECISION

Before:  ROWLAND, Chairman; CLEARY Commissioner.

BY THE COMMISSION:

A decision of Administrative Law Judge Wallace Tannenbaum is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  Judge Tannenbaum affirmed two citation subitems alleging noncompliance with the safety standard at 29 C.F.R. 1910.212(a)(3)(ii) for Skydyne's failure to guard two hydraulic presses.   The Commission reverses the judge's decision and vacates the subitems.

I
Skydyne manufactures plastic shipping containers at its Port Jervis, New York plant.   Following an inspection by an OSHA compliance officer ("CO"), Skydyne was issued one multi-item serious citation and one single-item repeat citation.  Skydyne, by its general manager, Donald Blodgett, contested the merits, abatement dates, and penalties of portions of the serious citation only. Pertinent to this case on review, Skydyne contested its alleged noncompliance with section 1910.212(a)(3)(ii).[[1/]] in subitems (o) and (p) of item 3 of the serious citation.  Those subitems alleged noncompliance with the aforementioned standard in that hydraulic presses #502 (subitem (o)) and #503 (subitem (p)) in Skydyne's ABS Molding Department were unguarded on all accessible sides.

II
The case went to a hearing before Judge Tannenbaum.  The Secretary was represented by counsel at the hearing; Skydyne's case was conducted by nonattorney Blodgett.  A union representative participated.  Because there was no dispute about the absence of guards on the cited presses, what follows is the pertinent testimony about the operation of the presses and whether the presses exposed employees to injury.

The CO provided the following testimony on the operation of the machines:

The operation involves a two-man operation; one man at the front and one man at the rear.

How it was described to me is that the material to be molded . . . is preheated in an oven and the men would bring the material over to the dye [sic].   There is an air vacuum system that sucks the material down into the mold and then the top ram is activated by a one-hand operation again, and again we would go into a molding process now very similar to what I had just described on the other presses.   There's a molding operation going on; it goes through a cycle, the ram comes up again, the material is removed and put to the side and stored there.

Again, preheated material on a second run would be placed over the dye [sic], sucked down by air vacuum and, again, the process would continue for upwards of ten hours a day.

Again, one operator stands at the front, activates the control by one hand, the other hand is free.  The man at the rear is standing at an unguarded point of operation, and there are no guards on either side. . . . Should employee's extremities or hands come in contact with dyes [sic], you could have crushing injuries, amputations.

The CO also testified that photographic exhibit C-10 showed the two presses side-by-side, C-11 depicted press #502, and C-12 press #503.  He explained that the latter two exhibits showed the presses hydraulic rams in the down position, and that the rams bring the dies together and mold whatever size container is being made.

Blodgett presented the following testimony for Skydyne on the two relevant presses:

. . . You vacuum the part as was described by John [the CO] . . . and a plug is inserted by air.  The gentleman who is doing that is generally around the side of the machine operating a lever, so he is not going to be able to get his hands in that machine.  The other fellow, rather than standing there, would probably be loading the fiberglass into the oven. . . .

So, two men work on the press only on the point in time when they are putting the rather limp, loose [fiberglass] material that's been heated on the press, and then when they are taking it off.  Taking it on and taking it off are the only two times when there are two people near the press.

Once they put the ring on that retains the ABS in molding position, the other fellow is heading for the oven to put a new sheet in for heating purposes.

Here again you need to load it from the front, you need to load it from the rear.   There is a ring that has to be put on after the molten sheet is put on, and then there are a series of males that the molten sheet is pressed down on and clamps all the way around that are used to hold it in place.

III
Judge Tannenbaum affirmed subitems (o) and (p) of the citation, making findings of fact that the hydraulic presses were not guarded, that their points of operation exposed employees to death or serious physical harm, and that Skydyne had actual knowledge the presses were not guarded.  The judge stated that Skydyne had not offered any meaningful evidence to refute the Secretary's case.  He assessed a total penalty of $640 for citation item 3, which also includes five other allegations of noncompliance with the cited standard affirmed by the judge but not subsequently included in the direction for review of this case.

Skydyne, through legal counsel, petitioned for review of the judge's decision.  The petition was granted in part on issues which include whether the judge erred in affirming violations of section 1910.212(a)(3)(ii) because his findings of fact regarding hydraulic presses #502 and #503 were not supported by the record. [[2/]]

IV
Skydyne argues that cited section 1910.212(a)(3)(ii) requires proof the unguarded points of operation of the presses were hazardous to employees and that the CO presented no specific testimony as to the proximity of the operators to the unguarded points of operation of the presses and no testimony that the operators were required to place extremities within the "danger zone" of the presses during the operating cycle.   Skydyne argues that Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1980 CCH OSHD 24,979 (No. 12470, 1980), requires the Secretary to prove more than just the possibility an employee may place his hands in the path of a press.  Rockwell requires the Secretary to prove that such an event may well occur given the method of operation of the press, the way the press is handled during its operating cycle, and the speed of the press.  This the Secretary failed to do, argues Skydyne.

Skydyne contends that although the CO testified employees could suffer crushing injuries upon contact with the dies of the presses, the CO's testimony about the operation of the presses was hearsay evidence obtained from "unidentified individuals."  Skydyne also contends that Blodgett refuted much of the CO's testimony by describing how the press operators performed their duties and testifying that the performance of those duties did not subject them to point of operation hazards.

The Secretary argues that the judge's action was proper and primarily based on the photographic exhibits and the testimony of a CO with substantial inspection experience.  The CO testified about the presses, their hazards of operation, and the means for abating them on the basis of his own knowledge and the information given to him by Skydyne's general manager and the union's president. The Secretary also contends that Blodgett's testimony in no way rebutted the Secretary's case.

V
For the Secretary to prove a violation of section 1910.212(a)(3)(ii), he must establish that (1) the points of operation of the two presses were unguarded, and (2) the operation of the presses exposed employees to injury.  Rockwell International Corp., supra. There is no dispute that the Secretary proved the presses were unguarded.  We find, however, that the Secretary did not prove that the operation of the presses exposed employees to injury.

In making our finding we are guided by the Commission's statements in Rockwell International Corp.:

The mere fact that it was not impossible for an employee to insert his hands under the ram of a machine does not itself prove that the point of operation exposes him to injury.  Whether the point of operation exposes an employee to injury must be determined based on the manner in which the machine functions and how it is operated by the employees.

9 BNA OSHC at pp. 1097-98, 1980 CCH OSHD 24,979 at p. 30,846.  The Rockwell case also indicates that the absence of any injuries, although not conclusive, buttresses arguments that there is no exposure to injury under section 1910.212 (a)(3)(ii).

The evidence on the way the presses operated was offered by the CO [[3/]] and Blodgett.  The CO's testimony indicates that presses such as these feature a ram that descends into a die, thereby creating a shearing effect.  He stated that the fiberglass material to be molded into containers by the presses was held in place on the dies of the presses and that the employee operating a press would activate the ram's control with one hand while his other hand remained free.  A second employee, the CO testified, was present at the rear of the press to assist with positioning of the fiberglass on the die and to help carry the fiberglass to and from the oven in which it was heated.  The presses were six feet wide and three feet deep.

Blodgett testified that the fiberglass was held in place on the die by a vacuum system and by a ring and clamps.  He stated that the fiberglass did not have to be held in place once positioned on the die.  Blodgett also testified that the press operator "is not going to be able to get his hands in that machine" and that the operator's helper, "rather than standing there [at the rear of the machine], would probably be loading the fiberglass into the oven. . . [T]wo men work on the press only . . . when they are putting the . . . [fiberglass] that's been heated on the press, and then when they are taking it off."

The evidence summarized above shows that in this case, as in the Rockwell case, the press operators did not hold the fiberglass material while the latter was being molded into a container.  The fiberglass was held in place by a vacuum system, retaining ring, and clamps.  Further, the compliance officer did not witness the operation of the presses and was neither able to present evidence on how far away the operators' hands were from the presses' points of operation nor to testify as to the rate of descent of the insert of the mold, both relevant considerations in the proof of a hazard under Rockwell.  The record also fails to show any reason for the operators to place their hands under a descending ram.  Finally, there is no evidence that there were any prior accidents in the use of the cited presses.  Accordingly, the Secretary has failed, under the dictates of Rockwell International Corp., supra, to prove that employees were exposed to a hazard from the unguarded presses.  We therefore vacate the allegations of noncompliance with section 1910.212(a)(3)(ii) in subitems (o) and (p) of item 3 in serious citation 1.  We also reduce the $640 penalty set by the judge when he affirmed these two subitems of citation item 3, along with five other subitems of item 3 that are not on review, to $460. SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JAN 10 1984


The Administrative Law Judge decision in this matter is unavailable in this matter.  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/]] Section 1910.212(a)(3)(ii) provides:

1910.212  General requirements for all machines.
* * *
(a) Machine guarding--
* * *
(3) Point of operation guarding.
* * *
(ii) The point of operation of machines whose operation exposes an employee to injury, shall he 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.

[[2/]] Review was also granted on Skydyne's arguments that the judge erred in not specifically advising Blodgett at the beginning of the hearing that Skydyne was entitled to counsel at the hearing and in not sufficiently developing the record in light of Skydyne's pro se status.  We have carefully examined the hearing transcript and balance of the record and conclude that the parties were granted a fair hearing.

[[3/]] The CO did not actually see the cited presses in operation.  He testified about their operation on the basis of information provided him during the walk-around by plant manager DeGrote and union president Dexter.  Although Skydyne contends that the CO's testimony on this basis was only uncorroborated hearsay and therefore lacks probative value, we do not reach this objection, because, as indicated infra, the CO's testimony was incomplete as to salient facts, i.e., the distance of the operator's hands from the point of operation, and the rate of descent of the ram.  We conclude that the CO's testimony lacks probative value for this reason.