SECRETARY OF LABOR,

Complainant,

v.

NATIONAL METALWARES, INC.,

Respondent.

OSHRC Docket No. 89-0422

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner Velma Montoya on June 18, 1990. The parties have now filed a Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. § 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated:    July 22, 1991

July 5, 1991

Ray H. Darling, Jr.
Executive Secretary
Occupational Safety and Health
Review Commission

Re: Secretary of Labor v. National Metalwares, Inc.
       OSHRC No. 89-0422

Dear Mr. Darling:

Enclosed for filing are five copies of a settlement agreement which resolves all issues in the case now pending before the commission.

Mr. Chadd and I would like to express our very sincere appreciation to the Commission for allowing us the time necessary to complete this agreement to the advantage of both parties.

Sincerely,

Daniel J. Mick
Counsel for Regional
Trial Litigation

Enclosures

cc; Charles M. Chadd, Esq.

LYNN MARTIN, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

NATIONAL METALWARES, INCORPORATED,

Respondent.

OSHRC Docket

No. 89-0422

SETTLEMENT AGREEMENT

Complainant, LYNN MARTIN, Secretary of Labor, United States Department of Labor, and Respondent, NATIONAL METALWARES, INC., pursuant to Rule 100 of the Occupational Safety and Health Review Commission, 29 CFR § 2200.100, hereby agree to resolve all pending issues in the above matter as follows:

With respect to the notification of failure to abate (Paragraphs 1-5 of this Agreement)

1. The Complainant hereby amends the notification of failure to abate alleged violations issued against Respondent on January 12, 1989 as follows:

(a) Complainant withdraws the allegation of subpart (b) that Respondent failed to abate Die No. 355.

(b) Complainant reduces the penalty proposed to Eleven Thousand Five Hundred Dollars ($11,500).

2. The Respondent has no objection to the amendment of the notification of failure to abate as set forth in Paragraph 1 above and withdraws its notice of contest to the notification of failure to abate as amended herein.

3. With respect to mechanical power presses at National Metalwares, the parties agree that the issue of safeguarding the point of operation must be approached on a die-by-die basis.

4. National Metalwares represents that on each die currently in active use (a list of such dies is attached as Exhibit A), the means of safeguarding the press operator from the hazard of the point of operation is either physical restraints or two-hand controls with the exception of Dies Nos. 355, 359, 478 and 933. With respect to Dies Nos. 355, 359, 478 and 933, the means for protecting the press operator from the hazard of the point of operation is a safeguarding system consisting of (a) a physical barrier attached to the press with openings designed to satisfy two conditions - (i) allow an elongated, tubular part to be inserted into the die area and (ii) allow the press operation to be performed on the part; (b) an elongated tubular part in the barrier opening throughout the press cycle; and (c) an operator holding the elongated tubular part with both hands during the press cycle. In connection with Die No. 933 the parties have agreed that Respondent will incorporate the changes which are set forth in Exhibit B hereto. The safeguarding systems utilized with respect to Dies Nos. 355, 359, 478 and 933 (as set forth on Exhibit B for Die No. 933) have been reviewed by the Complainant and each system is in compliance with the point of operation safeguarding requirements of 29 CFR § 1910.217. The parties also agree that the use of properly adjusted physical restraints or two-hand controls on the other Dies identified on the notification of failure to abate constitute compliance with the point of operation safeguarding requirements of 29 CFR § 1910.217.

5. National Metalwares further represents that after July 1, 1991, when new dies are added to its operation or existing dies are modified, it will attempt to utilize physical restraints or two-hand controls as the means of safeguarding the point of operation. If National Metalwares' analysis demonstrates that physical restraints or two-hand controls cannot be used on a new or modified die and if the physical barrier openings referred to in (b) (i) below cannot conform to the requirements of Table 0-10 of 29 CFR § 1910.217 for the reasons set forth in (b) (i) below, then National Metalwares will (a) document the reason(s) why physical restraints or two-hand controls cannot be used with respect to the die in question and (b) design and construct a safeguarding system for use with that die consisting of (i) a physical barrier with openings designed to satisfy two conditions - allow the elongated, tubular part utilized in conjunction with the die to be inserted into the die area and allow the press operation to be performed on the part; (ii) an elongated tubular part in the barrier opening throughout the press cycle; and (iii) an operator holding the elongated tubular part with both hands throughout the press cycle, provided further that the design shall consider and account for the issue of whether an adjacent opening(s) in the barrier shall expose an employee to a point of operation or nip point hazard if the hand slips while holding a tubular part. A safeguarding system meeting the conditions of this paragraph is in compliance with 29 CFR § 1910-217.

6. The parties agree that the terms of Paragraph 5 of this Agreement shall remain in effect for a term of six (6) years from the date of execution of this Agreement. After the six-year period, the terms of Paragraph 5 shall continue to remain in effect unless one of the parties to this Agreement gives a written notice of termination by certified mail to the other party and upon such notice the terms of Paragraph 5 shall expire 120 days after the date the written notice is received. If Paragraph 5 is terminated under the terms of this Paragraph and if a citation is subsequently issued alleging that a safeguarding system meeting the terms of Paragraph 5 violates the point of operation safeguarding requirements of 29 CFR § 1910.217, then with respect to that first subsequent citation, Respondent shall not be barred from raising any defense to that citation including those raised in this proceeding and the Judge's decision in this matter shall not have preclusive effect on any issue raised by that first subsequent citation.

With Respect to Item No. 1 of Citation No. 2 (Paragraphs 6-9 of This Agreement)

7. Respondent hereby withdraws its notice of contest to Item No. 1 of Citation No. 2.

8. Complainant has no objection to the withdrawal of Respondent's notice of contest to Item No. 1 of Citation No. 2.

9. Item No. 1 of Citation No. 2 claims that the machine guarding in place on Pines Tube Bender No. 1 was not adequate to meet the requirements of 29 CFR § 1910.212(a)(1). Although Respondent does not admit the allegations of the citation, it has redesigned the guard on that machine. A schematic of that guard is attached hereto as Exhibit C. Complainant has reviewed the design set forth on Exhibit C and agrees that it is in compliance with the requirements of 29 CFR § 1910.212.

10. The parties agree to a penalty of $500 for Item. No. 1 of Citation No. 2.

General Provisions Applicable to All Issues

11. None of the foregoing agreements, statements, findings and actions taken by Respondent shall be deemed an admission by the Respondent of the allegations contained within the Notification of Failure to Abate, Item No. 1 of Citation No. 2 and the Notification of Penalty and the Complaint in this action. The agreements, statements, findings and actions taken herein are made for the purpose of compromising and settling this matter economically and amicably.

12. The parties agree that this settlement agreement resolves all pending issues in the above matter and that this settlement agreement, and not the Judge's decision, shall control the outcome of this case.

13. Respondent has forwarded a check to Complainant made out to "United States Department of Labor - OSHA" in the amount of Twelve Thousand Dollars ($12,000) in full payment of the penalties set forth herein.

14. It is hereby certified by Respondent that this Settlement Agreement has been given to employees represented by an authorized representative in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. It is hereby further certified by Respondent that this Settlement Agreement has been served on employees not represented by an authorized employee representative, if any, by posting this agreement in a place where the Citation is required to be posted, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure.

The Complainant and the Respondent agree that an order should be entered which approves this agreement in all respects.

DATED: July 5, 1991.

NATIONAL METALWARES, INC.         

DAVID S. FORTNEY
Deputy Solicitor of Labor

DANIEL MICK
Counsel for Regional Trial
Litigation
Attorneys for Lynn Martin
Secretary of Labor, United
States Department of Labor,
Complainant

Gary Hill
Its President

Charles M. Chadd
Attorney for
National Metalwares, Inc.                  
                                                                                           

                                                                   
NOTICE

Any party (including any authorized employee representative of affected employees and any affected employee not represented by an authorized representative) who has any objection to the entry of an order as set forth in this agreement, must communicate such objections within ten (10) days of the posting of this agreement to the Executive Secretary, Occupational Safety and Health Review Commission, 1825 K Street, N.W., Room 401, Washington, D.C. 20006 with copies to attorneys for complainant and respondent.

The pictorial exhibit referred to above is not available in this format.
Please telephone the Review Commission Public Information Office,
FAX: 202-606-5050; e-mail: lwhitsett@oshrc.gov

SECRETARY OF LABOR,

Complainant,

v.

NATIONAL METALWARES, INC.,

Respondent.

OSHRC Docket No. 89-0422

APPEARANCES:

Richard Kordys, Esquire, Office of the
Solicitor, U.S. Department of Labor,
Chicago, Illinois, on behalf of
complainant.

Charles M. Chadd, Esquire, Pope, Ballard,
Shepard and Fowle, Ltd., Chicago,
Illinois, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge:    Respondent, National Metalwares, Inc., ("Natonal"), contests a notification of failure to abate alleged violation and two citations issued by the Secretary of Labor ("Secretary") on January 12, 1989.  The proceeding was initiated following an inspection of National's plant located at 900 North Russell Avenue in Aurora, Illinois, by the Occupational Safety and Health Administration ("OSHA").

National is a manufacturer of tubular steel components and sub-assemblies for other manufacturing companies.  It employs approximately 370 workers in Illinois, including 275 at the Aurora plant.

FAILURE TO ABATE

National entered into a settlement agreement with the Secretary of Labor on August 1, 1988 (Ex. C-1; Tr. 48). The settlement agreement emanated from an inspection conducted by OSHA in March 1988 (Tr. 47). The agreement, which became a final order of the Review Commission on September 6, 1988, pertained to 29 CFR § 1910.217(c)(2)(i)(a) and included a petition for modification of abatement and failure to abate alleged violation.

On November 17, 1988, OSHA safety supervisor Alex Smith visited National's Plant, accompanied by three other OSHA employees to conduct a follow-up inspection to determine whether National was in compliance with the settlement agreement. Paragraph 11(a)(i) of the settlement agreement provides (Ex. C- 1):

11. This paragraph and its subparagraphs set out the method of selection of dies to be permanently guarded within the abated period.

(a) National Metalwares represents that the order of dies selected selected to be permanently guarded will be such that no later than:

(i) October 1, 1988--all Category I and II dies selected to be permanently guarded will have permanent guarding means completed.

The OSHA personnel measured each of the guards designed for the Category I and II dies (Ex. C-13). OSHA contends that 11 of the 15 guards measured were inadequate to guard the points of operation. The 11 alleged inadequate guards were for the following press and die combinations (Ex. C-13):

The Secretary contends that National's guards for these presses and dies failed to meet the requirements of 29 C.F.R. § 1910.217(c)(2)(i)(a) which provides:

Every point of operation guard shall meet the following design, construction, application, and adjustment requirements:

(a) It shall prevent entry of hands or fingers into the point of operation by reaching through, over, under, or around the guard.

Section 1910.217(c)(2)(i)(b) of 29 C.F.R. provides:

It shall conform to the maximum permissible openings of Table 0-10.

Table 0-10 provides:

The pictorial exhibit referred to above is not availabel in this format.
Please telephone the Review Commission Public Information Office,
202-606-5398, to request a paper copy; TTY: 202-606-5386;
FAX: 202-606-5050; e-mail: lwhittsett@oshrc.gov

This table shows the distances that guards shall be positioned from the danger line in accordance with the required openings.

According to Smith's testimony, the relevant measurements for the dies and presses are (Exs. C-4, C-5, C-6, C-10, C-11, C-12, C-14 through C-25, C-29 through C-39; Tr. 76, 89-94, 99-101, 107-108, 112-113, 116-117, 121-124, 130, 135-136, 144):

The pictorial exhibit referred to above is not available in this format.
Please telephone the Review Commission Public Information Office,
202-606-5398, to request a paper copy; TTY: 202-606-5386;
FAX: 202-606-5050: e-mail: lwhittsett@oshrc.gov

The distance from the guards to the points of operation of 11 cited dies and presses are greater than the distances allowed in Table 0-10. The Secretary has shown that National was not in compliance with § 1910.217(c)(2)(i)(a) and was thus in violation of the settlement agreement which specifically required such abatement.

In Braswell Motor Freight Lines, Inc., 77 OSAHRC 86/D4, 5 BNA OSHC 1469, 1470, 1977 CCH OSHD ¶ 21,881 (No. 8480, 1977), the Review Commission held that "the complainant's prima facie case of failure to abate is established upon a showing that: (1) the original citation has become a final order of the Commission, and (2) the condition or hazard found upon reinspection is the identical one for which respondent was originally cited." The Secretary has met these two requirements.

The Review Commission goes on to say:

An employer may rebut this prima facie case by showing that the condition was corrected or, if not corrected, that the employer has prevented the exposure of his employees to the violative condition . . . . The prima facie case may also be rebutted by a showing that the condition for which the employer was cited was in fact not violative of the Act either at the time of the original inspection or at the time of reinspection.

Id.

National argues that it was in compliance with § 1910.217 because it used the alternative of guarding devices.

Section 1910.217(c)(1)(i) provides:

It shall be the responsibility of the employer 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. See Table 0-10. (Emphasis added.)

National argues that it is irrelevant that its guards are not in conformance with Table 0-10 if they have properly applied and adjusted point of operation devices. National claims that its "three-part safeguarding system" brings it into compliance with § 1910.217 by way of § 1910.217(c)(3)(i)(b), which provides:

Point of operation devices shall protect the operator by:

(b) Preventing the operator from inadvertently reaching into the point of operation, or withdrawing his hands if they are inadvertently located in the point of operation, as the dies close.

National's "three-part safeguarding system" consists of (1) the actual guard, (2) the opening being so small that it only accommodates the tubular part, and (3) the requirement that the operator hold the part with both hands. This system does not meet the requirements of a "device." Section 1910.211(d)(11) provides:

(11) "Device" means a press control or attachment that:

(i) Restrains the operator from inadvertently reaching into the point of operation, or

(ii) Prevents normal press operation if the operator's hands are inadvertently within the point of operation, or

(iii) Automatically withdraws the operator's hands if the operator's hands are inadvertently within the point of operation as the dies close, or

(iv) Prevents the initiation of a stroke, or stops of stroke in progress, when there is an intrusion through the sensing field by any part of the operator's body or by any other object.

National's system described a method and not a device, National did not have proper "point of operation" guards or properly applied and adjusted point of operation devices in accordance with § 1910.217(c)(1)(i). Therefore, its argument that it was in compliance with § 1910.217 must fail.

National argues that if it was not in compliance with § 1910.217, then compliance with § 1910.217(c) is infeasible. National did not contact OSHA regarding this perceived infeasibility, nor did it petition for a modification of abatement on this point. The record establishes that at the time of the hearing, National was using restraints as the primary safeguarding method on 9 of the 11 cited presses and dies (Tr. 222-223). National claims that restraints cannot be used with Dies #779 and #355 (Tr. 326-342).

National's implementation of the hand restraints contradicts its argument that the use of alternative means of guarding was not available at the time of the inspection. National's claim of infeasibility must fail. Finally, National argues that, even if it was in noncompliance with 1910.217, the violation was de minimis. This argument is rejected.

Smith has spent 19 years in the safety compliance field. Since 1970 he has conducted approximately 2,500 inspections, 2,300 of which involved machine point of operation guarding (Tr. 25, 43). It was his opinion that the improperly guarded presses and dies presented the hazard of amputated fingers and hands. This is a serious hazard, and it will not be trivialized with a de minimis classification.

Section 17(d) of the Act provides for a penalty of not more than $1,000 a day for each day that a violation continues to go unabated. The abatement date set by the settlement agreement was October 1, 1988 (Ex. C-1). The inspection took place on November 17, 1988. Upon full consideration of the facts, including the steps taken by respondent to abate the violative conditions, a penalty in the amount of $23,000 is deemed appropriate.

CITATION ONE

National was also charged with the serious violations of 19 C.F.R. 1910.217(b)(4)(iii)[[1]] and 29 C.F.R. 1910.217(b)(7)(v)(b).[[2]] National was cited as follows:

1
29 CFR 1910.217(b)(4)(iii): Pedal return springs of pedals used on mechanical power presses using full revolution clutches, were not of the compression type, operating on a rod or guided within a hole or tube, or designed to prevent interleaving of spring coils in event of breakage:

Fabrication Department Back, L&J Press, #70

2
29 CFR 1910.217(b)(7)(v)(b): The two hand control system for mechanical power presse(es) using part revolution clutch(es) was not designed to permit an adjustment requiring concurrent pressure from both hands during the die closing portion of the stroke:

Fabrication Department Back, Rousselle Press #69.

National does not dispute that it was not in compliance with the cited standards. National disputes only the Secretary's proposed penalties of $400 for each of the two items.

The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., Inc., 72 OSAHRC 1/B10, (p) BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1971).

Smith testified that the pedal return spring on Press #70 would not prevent interleaving of the spring in the event of breakage. The spring, designed to return the pedal to the proper position, could result in another stroke by the press ,if broken. As to Press #69, Smith stated the controls did not require concurrent contact with the buttons. In both instances, the hazardous conditions could result in the amputation of employees' fingers and hands.

After considering the factors used for determining penalties, a penalty in the sum of $200 for each item is deemed appropriate.

CITATION TWO

National was charged with a repeat violation of 29 C.F.R. § 1910.212(a)(1), which provides:

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

The citation alleged:

1
29 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protect operators and other employees from hazards created by pinch points:

Fabrication Department Back, Pines Tube Bender #1, at Press *69, the pinch point created by the clamping arm was not adequately guarded.

The National Metalware Incorporated was previously cited for a violation of this occupational safety and health standard or its equivalent standard 29 CFR 1910.212(a)(1) which was contained in OSHA inspection number 2433977, citation number 1, item number 2, issued on 4/28/86.

National argues that the cited guard was based on a design created for the company by an OSHA engineer in 1987 (Ex. R-8; Tr. 175). R-8 depicts a diagram of the proposed guard. Under "Notes," R-8 states in pertinent part: "This conceptual (drawing) is prepared for design information. Company's engineering shall work the dimensional tolerances . . . "

National claims it is unfair for OSHA to instruct National to work on the dimensional tolerances and then cite the company for having the incorrect dimensional tolerances. National is mistaken in assuming that, because OSHA did not dictate the dimensional tolerances in the conceptual drawing, National was free to ignore the requirements of the cited standard.

Smith testified that the guard in question "was not properly position to prevent entry into the pinch point" (Tr. 158). The likely injuries resulting from such a condition are the crushing or amputation of the fingers (Tr. 159). National was in violation of § 1910.212(a)(1).

"A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294, p. 28,171 (No. 16183, 1979).

National had previously been cited on April 28, 1986, for improperly guarding the pinch points on a Pines Tube Bender (Ex. C-42; Tr. 160). (There is no dispute that the citation alleging violation of 1910.212(a)(1) became a final order June 1, 1987.) The violations were substantially similar. National was in repeat violation of § 1910.212(a)(1); and, upon consideration of all factors, a penalty of $500 is deemed appropriate.

The foregoing constitutes the findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby ORDERED:

1. The citation for failure to abate is affirmed and a penalty of $23,000 is assessed.

2. Citation 1 is affirmed and a penalty of $400 is assessed.

3. Citation 2 is affirmed and a penalty of $500 is assessed.

Dated this 15th day of May, 1990.

PAUL L. BRADY
Judge

FOOTNOTES:

[[1]] Section 1910.217(b)(4)(iii) provides:

The pedal return spring(s) shall be of the compression type, operating on a rod or guided within a hole or tube, or designed to prevent interleaving of spring coils in event of breakage.

[[2]] Section 1910.217(b)(7)(v)(b) provides:

The control system shall be designed to permit an adjustment which will require concurrent pressure from both hands during the die closing portion of the stroke.