SECRETARY OF LABOR,
Complainant,
v.
JEFFERSON SMURFIT CORPORATION,
Respondent.

UNITED PAPERWORKERS INTERNATIONAL UNION, LOCAL 1009,
Authorized Employee Representative.

OSHRC Docket No. 89-0553

DECISION

BEFORE: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:

Following an inspection at a cardboard box manufacturing facility in Lakeland, Ohio operated by Respondent, Jefferson Smurfit Corporation ("Smurfit"), the Secretary issued a citation alleging that Smurfit violated the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("the Act") by exposing its employees to in running nip points created by unguarded belts and pulleys on a gluing machine. The issue before us is whether Administrative Law Judge Joe D. Sparks erred in finding that Smurfit failed to comply with the Secretary's standard at 29 C.F.R. § 1910.212(a)(1), which requires as follows:

§ 1910.212 General requirements for all machines.

(a) Machine guarding--(1) Types of guarding. One or more methods of machine guarding shall he 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.

We conclude that the Secretary failed to prove that Smurfit's employees were exposed to a hazard within the meaning of this standard.[[1]] We reverse the judge's decision and vacate item 1 of the citation.[[2]]

FACTS

The alleged violation concerns one machine, gluer no. 18e. This machine, known as a "straight-line gluer," processes flat cardboard into finished boxes by passing the cardboard through a series of folder bars and glue applicators which gradually form it into boxes of the prescribed size and shape. One employee, the feeder, inserts flat cardboard into the machine at one end while another, the finisher, takes the completed boxes from the other end, approximately 80 to 85 feet away. There is also a machine operator who sets up the machine and inspects the quality of the finished product. The finisher at times assists the operator.

The gluer contains a horizontal belt, referred to as a "folder belt," that carries the cardboard through one section of the machine. It operates at a speed of 248 feet per minute. At issue here are the two nip points formed where the return run of the belt winds over its pulleys. This portion of the belt is 57 inches in length and 30 inches above the floor. It is located at least 15 feet and possibly as much as 25 feet from the nearest work station. An emergency stop cord extends along the length of the gluer, parallel to the folder belt but above and in back of it. The stop cord is 63 inches from the floor and about 12 inches past the location of the nip points. In addition to the stop cord, there are two sets of start stop jog buttons 7 feet apart about 16 inches from the belt. The jog button is used in setting up the machine for each product. It allows the operator to position the box material precisely at the location where the box will be folded so that the folder rail, or "sword," can be properly adjusted.

Compliance officer Jackie L. Hunt, who conducted the initial inspection, stated that the nip points presented a hazard of possible finger amputation. He observed a machine operator, Ray Lewis, standing 1 or 2 feet away from the nip points while watching the machine. He also saw the operator's assistant and two other employees walk past the nip points 2 to 3 feet from them, while proceeding to their work stations. He stated that they could have fallen or slipped into the nip points but observed nothing in the aisle that would have caused them to slip or trip.

A second compliance officer, James Zucchero, conducted a subsequent discovery inspection of the plant for the purpose of determining feasible guarding methods. During this inspection, Zucchero made a videotape of the gluer in operation. Zucchero observed operator Lewis making an adjustment with a wrench approximately 36 inches from the nip point. Zucchero also concluded that because the stop cord is located behind the nip points, any employee wishing to pull the cord from that side of the machine would have to reach over and past the nip point. However, Zucchero was not asked whether an employee would have any more reason to pull the cord in the area of the nip points than at some other location along the 80- to 85-foot length of the cord. Finally, Zucchero saw some tool carts "stored" in the aisle but did not know whether they are there on a permanent basis, how frequently they are there, or whether there were any carts in the aisle at the time of Hunt's inspection.

In addition to the testimony of the two compliance officers, the Secretary presented the testimony of three other employees: Timothy Gilb, the president of the union local at Smurfit's plant; Ruby Aker, who had worked as a finisher at the gluer but had never operated the equipment, and Wendall Alder, who delivered material to the gluer. Gilb and Aker testified that the operator stood as close as 5 inches from the unguarded nip points while he watched the machine to be sure it was operating properly. Alder stated he had seen the operator within 2 to 3, inches from the nip points and that the operator was adjusting the gluer while it was operating. Aker also testified that there was a "possibility" of other employees approaching the nip points. Gilb testified that other employees could walk by within 1 to 2 feet of the nip points, and that there were objects such as toolboxes in the aisle.

Operator Lewis and operator's assistant and maintenance technician Combs appeared as witnesses for Smurfit. Lewis had been employed as it gluer operator for twenty-nine years. Combs, an operator's assistant who also was in charge of maintenance of the gluer, had 35 years experience with gluers of the type at issue here. Lewis testified that when he is simply observing the operation of the gluer, he stands at least 2 feet away from the frame of the machine. He also testified that if any problems were to arise during the course of a production run. he would turn off the gluer before making the necessary corrections. While Lewis did state that he would make adjustments to the glue pot while the equipment was running, he testified that the adjustment crank for the glue pot is 28 to 30 inches away from the nip point. He further testified that the crank handle had a fitting to accommodate an employee's hand, and there had never been an occasion when his hand slipped off the crank. Lewis and Combs also agreed that the operator would have occasion to make adjustments to the folder bars of the gluer while it was operating but differed somewhat regarding the locations where the adjustments are made. Lewis testified that the adjustment cranks for the folder bars are positioned at the middle and ends of the gluer, nowhere near the nip points. Combs, however, stated that the crank the operator uses to adjust the track of the folder mechanism is 24 inches from the belt in issue here. Combs and Lewis also stated that an employee could grasp the safety line from the location of the nip points by reaching up and over the nip points. Lastly, Combs noted that there are often toolboxes in the aisle 3 to 4 feet from the nip points.

DISCUSSION AND ANALYSIS

After reciting the testimony of the witnesses for both the Secretary and Smurfit, Judge Sparks found that "the weight of the evidence" established that employees were exposed to the hazard presented by the unguarded nip points. The judge stated as follows:

The operator was seen by several witnesses observing operations and making adjustments only a few inches from the nip points. Other employees walk by the nip points in aisles which have tool chests and other obstructions. It is entirely possible that persons could trip or accidentally fall into the nip points.

Ironically, a worker attempting to use the safety trip wire could be required to reach over the nip points. During an emergency situation, it could result in accidental contact with the nip points. In summary, the evidence shows that employees in pursuit of their work and comfort activities are regularly exposed to the danger of serious bodily injury in the nip points.

Essentially, the judge implicitly found the testimony of the Secretary's witnesses Glib, Aker, and Alder more persuasive than that of Smurfit's witnesses, operator Lewis and operator's assistant and technician Combs, regarding how close operators would come to the nip points during their work tasks. The judge also found exposure based on possibility of accidental contact by employees when walking past the gluer or operating the safety cord. We disagree.

The standard at issue, § 1910.212(a)(1), requires the Secretary to prove that a hazard within the meaning of the standard exists in the employer's workplace. Armour Food Co., 14 BNA OSHC 1817, 1821, 1987-90 CCH OSHD ¶ 29,088, p. 38,883 (No. 86-247, 1990). In order to meet this burden, the Secretary must do more than show that it may be physically possible for an employee to come into contact with the unguarded machinery in question. Rather, the Secretary must establish that employees are exposed to a hazard as a result of the manner in which the machine functions and the way it is operated. Id.: Rockwell International Corp., 9 BNA OSHC 1092, 1097-98, 1980 CCH OSHD ¶ 24,979, p. 30,846 (No. 12470, 1980).

In this case, there is a conflict in the evidence with regards to the exposure of the machine operators. The Secretary present testimony that the gluer operators routinely came in very near proximity to the unguarded nip points, as close as 2 to 5 inches, while performing their assigned task. That evidence is contradicted by, Smurfit's witnesses, who testified that the operator would at least 2 feet from the gluer while observing it and that they would make their adjustments to the equipment using crank handles located and designed to keep their hands no closer than 2 feet from the nip points. In finding the machine operators to be exposed to a hazard, the judge relied on the testimony of the Secretary's witnesses. In our view, however, Smurfit's evidence is entitled to greater weight than that of the Secretary.

None of the Secretary witnesses had any first-hand experience with the operation of the gluer and two of the Secretary's witnesses, Gilb, the union president, and Alder, who made deliveries to the gluer, had never even worked in the gluer area. Their testimony consists entirely of estimates of the proximity of the operators to the nip points based on their observations of operators during the course of their work. On the other hand, Combs and Lewis, who testified for Smurfit, had years of actual experience with the operation of the gluer. Each stated specifically where he stood in relation to the gluer when observing it or making adjustments, and each described the actual mechanisms used to make adjustments to the equipment's and specified the location of the adjusting cranks. Furthermore, the testimony of Combs and Lewis is more consistent with that of the Secretary's compliance officers than is the testimony of the employee's who appeared for the Secretary. Neither of the two compliance officers observed operators working as close as 2 to 5 inches from the nip points, as described by Secretary's witnesses. Rather, compliance officer Hunt saw operator Lewis standing 1 to 2 feet from the gluer while observing it, and compliance officer Zucchero saw Lewis making adjustment approximately 36 inches from the nip point. These observations by the compliance officers substantiate the direct testimony of Combs and Lewis that operators customarily do not close than 2 feet from the nip points. Similarly, they cast doubt on the accuracy the employees' estimates placing operators as close as several inches to the nip points. Since we find testimony of Combs and Lewis inherently more persuasive because it is based on their own personal knowledge and experience, and since it is corroborated by the compliance officers' testimony, we conclude that the judge erred in failing to give it dispositive weight on the question of the exposure of operators to hazard. See All Purpose Crane Inc., 13 BNA OSCH 1236, 1986-87 CCH OSHD ¶ 27,877 (No. 82-284, 1987) (Commission has the same authority as the judge to evaluate the relative qualifications of various witnesses and weigh their testimony in the light of the totality of the record). [[3]]

The testimony of Combs and Lewis conclusively establishes that operators would not have occasion to approach closer than 2 feet to the nip points when simply observing its operation and that the adjustment handles or devices are located and designed so as to keep the operators hands away from the nip points. The record shows that the start, stop, and jog buttons the operator uses to control the gluer were located 16 inches from the belt in issue here. There is no evidence from which we could conclude that operators would have occasion to come any closer to the nip points when operating these controls. On these facts, the Secretary has failed to establish that operators are exposed to a hazard under § 1910.212(a)(1) while performing their normal work duties. As the Commission held in Syntron, Inc., 11 BNA OSHC 1868, 1983-84 CCH OSHD ¶ 26,841 (No. 81-1491-S, 1984), where the operator of a cut-off saw stood about 1 foot from the unguarded blade while the saw was operating in an automatic mode, a violation of § 1910.212(a)(1) cannot be found in the absence of evidence that the operator would have any reason to put his hands close enough to the unguarded parts of the machinery to be exposed to a hazard. See Rockwell International, 9 BNA OSHC at 1097- 98, 1980 CCH OSHD at p. 30,846 (employees not exposed to the hazard of unguarded power presses where operators did not hold the metal pieces during processing and had no cause to place their hands within the bed of the press ram).

We further conclude that the judge erred in finding that employees other than the gluer operator would be exposed to a hazard. As the judge's decision indicates, the evidence shows only a mere possibility that employees could come into contact with the unguarded nip points while walking past the gluer. In addition, the record indicates at even that possibility would be remote. The video tape taken by Zucchero, which was admitted into evidence, plainly shows that the belts and nip points in question are located in a small alcove in the exterior framework of the gluer that is no less than 16 inches deep. [[4]] Accordingly, in order for employees to be exposed to a hazard while merely walking past the gluer, they would have to deliberately turn from the aisle into the alcove, walk alongside the length of the folder belt, and then turn again at the Opposite end of the alcove to reenter the aisle. There is no evidence to show that employees would have any reason to use such an indirect route merely to walk by the equipment. While occasionally articles such as toolboxes and tool carts are left in the aisle, the only evidence showing the actual location of these objects is Comb's testimony that they may have been 3 to 4 feet from the nip points. We cannot conclude on this record that they were positioned in such a way as to require employees to enter the alcove or recess area in order to avoid them. Indeed, the record fails to show the toolboxes or other objects created any obstruction or hindrance to employees in the course of their movement through the gluer area. As the Commission held in Armour Food, 14 BNA OSHC at 1825, 1987-90 CCH OSHD at p. 38,886, exposure to a hazard is not established where employees have sufficient space to walk past unguarded machinery such that contact with the hazardous nip points, while possible, is unlikely.

While the record supports the conclusion that an employee could come into contact with the nip point if he approached the folder belt in order to operate the stop cord, there is no showing of any circumstances that could reasonably be expected to cause an employee to pull the cord at the location of the nip point. In the first place, there is no showing that employees have ever had occasion to operate the safety cord for any reason. Furthermore as Smurfit points out in its brief, the cord stretches the entire 80 to 85-foot length of the machine. In the event an emergency were to occur requiring immediate cessation of power to the equipment, the safety cord could he activated from any position along the gluer. It is logical to assume that an employee would be most likely to pull the stop cord at the location of the folder belt if he had already become caught or was about to become caught in the nip point itself. In that event, the placement of the stop cord behind the nip points would not present any additional hazard to the employee. Moreover, as we have held above, the Secretary failed to prove that either the operators or other employees would be exposed to the unguarded nip points during their normal work activities. Therefore, we cannot find that an operator or another employee would have occasion to reach for the cord in order to stop the machine for his own safety. Should a situation arise that would require the gluer to be shut off for some other reason, an operator or other employee in the vicinity of the nip points could cut off the machine power by using the start and stop buttons located adjacent to the area of the folder belt just as easily as he could by pulling the emergency cord. Accordingly, we conclude that the evidence fails to show that employees would be exposed to a hazard as a result of the presence of the emergency stop cord above and behind the nip points.

For the reasons stated, we hold that the Secretary failed to prove that Smurfit was in noncompliance with § 1910.212(a)(1). That portion of Judge Sparks' decision affirming item 1 of the citation is reversed, and the citation item is vacated.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: December 19, 1991

SECRETARY OF LABOR,
Complainant,
v.
JEFFERSON SMURFIT CORPORATION,
Respondent,
and

UNITED PAPERWORKERS
INTERNATIONAL UNION,
LOCAL 1009,

Authorized Employee
Representative.

Apperances:
Betty Klaric, Espire, Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Robert A. Dimling, Esquire, Frost and Jacobs, Cincinnati, Ohio, on behalf of respondent.

Timothy L. Gilb, President, United Paperworkers International Union, Local 1009, Reading, Ohio, on behalf of authorized employee representative. 


DECISION AND ORDER

SPARKS, Judge: Respondent, Jefferson Smurfit Corporation, is a corporation with offices and a plant in Lockland, Ohio. It is admitted that Jefferson Smurfit is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 (Respondent's answer).

On December 9 and 12, 1988, Jackie L. Hunt, a compliance officer for the Occupational Safety and Health Administration (OSHA), conducted an inspection of 'the Jefferson Smurfit plant at Cooper and Lock Streets in Lockland. As a result of that inspection, a serious citation with two items was issued to respondent on January 6, 1989. Respondent timely contested the citation. On August 15, 1989, a hearing was held in Cincinnati, Ohio, on the contested citation.

On August 8, 1989, the Secretary moved to amend item one of the citation to allege a violation of 29 C.F.R. § 1910.212(a)(1) or, in the alternative, 29 C.F.R. § 1910.261(a)(3)(ix), instead of 29 C.F.R. § 1910.219(e)(1)(i). The statement of conditions constituting the violations was not amended. At the commencement of the hearing on August 15, 1989, the Secretary's motion to amend citation was granted (Tr. 10).

At the close of complainant's case, respondent moved to dismiss the citation as amended and the motion was taken under advisement (Tr. 140-142).

After both sides had rested, the Secretary moved to amend item two of the citation to allege a violation 29 C.F.R. § 1910.261(a)(3)(ix) and to amend item one by deleting the alternative alleged violation. Respondent objected to the amendment which was also taken under advisement.

I

The basic facts are not in dispute and are as stated by respondent as follows:

At its Lockland location, Jefferson Smurfit Corporation operates a boxboard mill and a carton plant as separate entities (Tr. 144). Both the board mill and the carton plant were purchased by Smurfit in 1982 from Diamond International (Tr. 194, 199). At the carton plant, the company is a rotogravure converter of detergent cartons for the industry's three largest detergent companies as well as for certain fast food customers (Tr. 144). The carton plant obtains approximately 80 percent of its boxboard material from the company board mill located across the street (Tr. 145). At the carton plant, the board material is printed, cut, and scored in the rotogravure department, and then is sent to the finishing department where it is folded, glued, and shipped to customers (Tr. 144).

In the finishing department, the flat cartons are fed into the magazine or hopper of a straight-line gluer machine (Tr. 147) that is approximately 80 to 85 feet long (Tr. 158). The printed flat board is carried down the length of the machine by various belts (Tr. 147). Along the way, the board is folded along its scored lines by belts and rollers (Tr. 147- 148). One edge of the carton is glued and compressed (Tr. 148).

Straight-line Gluer No. 183, the machine cited by the Secretary, requires three persons for its operation: (1) the operator who has overall responsibility for productivity and quality; (2) the feeder who feeds the flat blank cartons into the magazine and maintains the line operation when the operator is on break; and (3) the finisher or grabber who places the finished boxes in a container on a conveying system (Tr. 149, 157-158).

In the present case, two belts of the gluer are at issue: Item one concerns the folder belt, a horizontal leather belt approximately one and three-quarter inches in width (Tr. 152) which is located about 16 inches inside the machine frame (Tr. 159-160). The folder belt is not a power-transmission belt; that is, the belt does not drive the machine but is driven by the machine (Tr. 151). Item two concerns five half-inch motor belts located on the far side of the machine. These are belts from a motor mounted at floor level, which drive the line shaft and the mechanical apparatus inside a gear box (Tr. 75).

In December 1988, at the time of the inspection, a yellow semi-circular guard protected the top area of the belts and pulleys (Ex. C-4; Tr. 74, 76-77). Item two alleged a violation based on the lower, unguarded section of the pulleys (Tr. 76). Subsequently, a guard was added to the lower section (Tr. 75). In his testimony, the Secretary's expert witness testified that the alleged violation had been abated (Tr. 76).

The gluer machine contains numerous switches used to start, stop, and jog the machine (Tr. 161). Two of these switches are located on the frame of the machine about 16 inches from the folder belt (Tr. 81). The machine also has an emergency safety trip wire which runs along the center line of the machine, parallel to the sides and approximately 12 inches to the rear of the folder belt (Tr. 81).

II

SERIOUS CITATION ONE

A.

During the OSHA inspection conducted in response to a complaint (Tr. 30), Compliance Officer Jackie L. Hunt found that the in-running nip points on the prefold straight line leather belt on the five half-inch belts and pulleys on the No. 183 gluer were not guarded as required by OSHA standards. On the basis of his observation, Mr. Hunt recommended the issuance of the citation at issue here.

Mr. Hunt testified that he observed two unguarded nip points on the prefold straight line leather belt (Tr. 17) and an unspecified number of nip points on the five half-inch belts and pulleys (Tr. 22).

Item one of the serious citation was amended to allege a violation of 29 C.F.R. § 1910.212(a)(1)[[1]] (Tr. 7, 10, 214):

29 C.F.R. 1910.212(a)(1): Machine guarding was not 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:

The inrunning nip points on the prefold straight line leather belt on gluer No. 183 were not guarded.

The alleged violation involved the horizontal feeder belt called a "folder belt" (Ex. C-1, C-2; Tr. 48, 159). Hunt testified he saw the operator observing the machine while standing one or two feet away from the nip points (Tr. 18, 47). He also saw two women walking down an aisle to their work stations come within two or three feet of the nip points (Tr. 19, 20). The belt traveled 248 feet per minute (Tr. 160). Hunt suggested workers could fall into the nip points as a result of slipping and tripping (Tr. 54 82). Hunt considered the nip points as serious violations because they could". . . cause harm to the body . . . "or". . . possible amputation of fingers" (Tr. 23, 53).

James Zucchero, a safety compliance officer with OSHA, was qualified as an expert witness in machine guarding and especially In the paper industry. He has conducted more than 1,000 inspections involving machine guarding, 70 percent of which, he estimates, were in the paper industry (Tr. 60). He made a post-inspection discovery entry of the plant during which visit he made a videotape of Gluer No. 183 depicting the alleged hazards (Ex. C-5; Tr. 70, 78). Zucchero testified the belt creating the exposed nip point runs approximately 57 inches at a level 30 inches above the floor. The belt is 16 inches from the side framework of the machine. Zucchero testified employees were directly exposed to the hazard while the machine was running, while activating a stop button, observing the operation of the machine or while operating a safety trip wire (Tr. 80). Zucchero stated the start/stop/jog switch was located on the frame about 16 inches from the exposed belt (Tr. 81, 104). The safety trip wire was about 12 inches from the nip points and it would be necessary to reach over them to reach the safety trip wire (Tr. 81). Obstructions were recorded in the aisleway (Tr. 83, 104). Zucchero expressed an opinion that the nip points could be guarded without creating a greater hazard (Tr. 87). He was of the opinion that a barrier guard of plexiglass or metal would be "best" (Tr. 87, 92).

Respondent's managers were familiar with the nip points and the various devices used to guard the hazards at other locations (Tr. 25-27). At one time, there had been an electric light beam which shut down the machine when one came too close (Tr. 132, 171). The light beam safety device was removed, because it was being hit or moved by other workers thereby annoying the operator. The light sensor was more sensitive and would not allow persons to get as close to the machine as the trip wire (Tr. 171, 190-192). Timothy L. Gilb, president of Local Union 1009, did not work in the building where Gluer No. 183 was located but did make inspection trips through the facility. He testified he had seen the machine operator observing the machine while standing within five inches of the nip points (Tr. 108, 117). He also had observed the assistant operators and feeders walk past the area within one or two feet of the nip points. Gilb had also seen tripping hazards in the aisles (Tr. 109-110, 111). Ruby Aker, a former finisher on Gluer No. 183 two years prior to the hearing, also testified she had seen the operator standing within five inches of the nip points while observing the glue lap and the proper attachment of handles on the cartons (Tr. 121-122, 124-125, 126). Wendall A. Alder, the union steward, delivers stock each day to Gluer No. 183 (Tr. 133, 137). Alder testified he had observed the operator making adjustments to the machine while it is running and in such instances the operator is two to three inches from the nip points (Tr. 129-130, 134-135, 137).

At the conclusion of the Secretary' s case, respondent moved dismiss item one on the grounds that the Secretary had failed to prove". . . exposure of employees to the alleged hazard." In addition, respondent contended the standard cited by the Secretary was not applicable (Tr. 140-141). The citation was amended from 29 C.F.R. § 1910.219(e)(1)(i) to 29 C.F.R § 1910.212(a)(1) which corrected the problems on which respondent relies, making its motion to dismiss without merit.

Gary C. Combs, a witness for respondent who is in charge of maintenance of Gluer No. 183 and has worked around gluing machines for 35 years, agreed that the folder belt is one and three-quarter inches wide and is located 16 inches inside the frame of the machine (Tr. 159-160). Two sets of start and stop buttons are located in the area of the folder belt (Tr. 161-162). Combs stated that he had never known of a worker to be injured in the nip points of the folder belt (Tr. 161). He agreed that it would be possible for someone to be caught in the nip points and in such case, they would have to extend up and over the nip points to reach the safety trip wire (Tr. 168-169). He also agreed that there were often tool boxes in the aisle about three to four feet away from the nip points (Tr. 169, 170).

Ray Lewis, the current operator of Gluer No. 183 on the day shift, testified that he turned the machine off before "making ready" or making adjustments to the machine (Tr.175). He observes the machine to insure that the glue is being applied properly and that the handles are on straight (Tr. 183). He testified he is at least two feet away from the nip points while making the observations.

Although there have been no injuries at the nip points described in item one, the weight of the evidence shows that employees are exposed to the hazard (Tr. 194). The operator was seen by several witnesses observing operations and making adjustments only a few inches from the nip points. Other workers walk by the nip points in aisles which have tool chests and other obstructions. It is entirely possible that persons could trip or accidentally fall into the nip points. Ironically, a worker attempting to use the safety trip wire could be required to reach over the nip points. During an emergency situation, it could result in accidental contact with the nip points. In summary, the evidence shows that employees in pursuit of their work and comfort activities are regularly exposed to the danger of serious bodily injury in the nip points.

Item two of the citation, as amended, alleges a violation of 29 C.F.R. § 1910.261(a)(3)(ix).[[2]] The condition described in the citation states as follows:

(a) The in running nip points on the on the five half inch belts and pulleys were not guarded on the No. 183 gluer.

It is clear that the amended citation involved the same machine, nip points and hazard as were cited originally. Respondent has not been surprised or prejudiced by the change in the standard alleged to have been violated. The facts and issues were the same, i.e., whether the specific nip points identified created a hazard; and, if so, whether employees were exposed to them. All facts and issues tried at the hearing were the same. Therefore, complainant's motion to amend is granted.

The evidence is convincing that the nip points described in item two constituted a hazard to which respondent's employees were exposed. The five belts, which run from a motor, drive the glue machine and are located at floor level on the opposite side of Gluer No. 183 from the folder belt (Tr. 176). After the inspection, a guard was installed around the nip points which abated the hazard. Combs and Lewis agreed that before the nip points were guarded, a hazard was present because workers could get their pant leg caught in the belts (Tr. 167-168, 185).

The operator and other employees were exposed to the unguarded nip points at the time of the inspection. An electric eye counter is located eight to ten inches above the motor which requires adjustment (Tr. 162, 178). The operator also uses a crank to adjust the cold glue pot, at which time the nip points are 28 to 30 inches away (Tr. 181, 184). Some adjustments are made while the machine is running (Tr. 186). Employee Alder testified he had observed the operator and the feeder within two to three inches of the belts, adjusting and inspecting cartons (Tr. 130). Aker testified she had observed workers within a couple of feet but not "right by" the nip points (Tr. 123). Gilb stated he had seen the operator ". . . less than a foot. . ." from the nip points while observing the machine and checking the fluid in the gear box (Tr. 112). It is clear that employees were exposed to the hazard presented by the nip points which could cause serious bodily injury (Tr. 19, 23). Without question, respondent was aware or should have been aware of the conditions (Tr. 25).

III

COLLATERAL ESTOPPEL

Respondent contends items one and two should be vacated on the ground of collateral estoppel, because Judge Brady, in a prior case involving a gluer at another plant, had decided that although "there were exposed belts, pulleys, shafts, wheels, gears, and chains in the work area . . . " no hazard was created (Ex. R-6 at p. 8). In the prior case, the gluer was from the same manufacturer, had the same configuration and operation as Gluer No. 183. Without question, collateral estoppel is properly applied in some cases under the Act. That is especially true where there are indications of harassment by the Secretary. Continental Can Co., U.S.A. v. Marshall, 630 F.2d 590 (6th Cir. 1979). There are no such suggestions of harassment or overreaching by the Secretary in this case. In cases where exposure of employees is an issue, the question often turns on the specific facts found in the case. In the prior case, Judge Brady found that, during normal operations, there was no reason for employees to come within a foot of the exposed areas. In the instant case, Combs, the maintenance man, and Lewis, the operator, agreed that workers' pant legs could become caught in the nip points described in item two and that a hazard was created (Tr. 167-168, 185). The findings and rationale for Judge Brady's decision do not exist in the instant case.

It is well established that collateral estoppel should not be applied in administrative cases where there are different facts and work practices, so respondent's affirmative defense is rejected.

IV

PENALTY

The Secretary proposed penalties of $700 for violation of item one and $600 for item two for a total of $1,300. Compliance officer Hunt testified he considered the number of employees at the location, the frequency and the danger, as well as the size, good faith and history of respondent in making that determination (Tr. 24).

Section 17(j) requires the Commission to assess all penalties ". . . giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer . . . , the gravity of the violation, the good faith of the employer, and the history of previous violations."

Respondent has about 400 employees, but only a few are exposed to the nip points. It is also significant that there have been no injuries at the locations cited; and, although an injury, if it should happen, would probably not be life threatening.  The compliance officer gave no credit for good faith, but the prompt abatement of the hazard of item two demonstrates such credit is warranted.   Considering all the above factors, it is concluded that penalties of $400 for item one and $300 for item two are reasonable and appropriate.

The findings of facts in this case consist of those made in the foregoing discussion and determination and in the following:

V

FINDINGS OF FACT


1. Respondent is a corporation which operates a cartoon folding plant in Lockland, Ohio.  It employs 400 persons.

2. At the cartoon plant, Smufit prints, cuts, scores, folds, glues and ships detergent cartoons.

3. On December 9 and 12, 1988, an OSHA compliance officer conducted a complaint-inspired inspection of respondent's carton folding plant.

3. The compliance officer observed two unguarded in-running nip points on the prefold straight line leather belt and other unguarded in-running nip points on five half-inch belts and pulleys on the No. 183 gluer.  He recommended issuance of the citation at issue here.

4. In the department of the carton plant, straight-line gluer machines such as Gluer No. 183 are used to fold and glue flat cartons.

5. The folder belt is a horizontal leather belt approximately one and three-quarter inches in width which is located about 16 inches inside the gluer machine frame.

6. The folder belt is not a power-transmission belt.

7. The gluer also has five half-inch motor belts which drive the line shaft and the mechanical apparatus inside a gear box.

8. There have been no reported injuries to employees as a result of either of the conditions cited.

9. Employees working on the No. 183 gluer came within two or three inches to two feet of the unguarded in-running nip points. Other employees walked or stood within a foot or two of the nip points at issue.

10. In the event of an accident, broken bones and cuts would likely result.

11. To reach an emergency stop wire that ran the length of the No. 183 gluer, employees in the vicinity of the nip points would have to reach over and beyond the nip points.

12. Respondent knew, or with the exercise of reasonable diligence, could have known of the presence of the violation.

VI

CONCLUSIONS OF LAW

1. Respondent, at all times material to this proceeding, was engaged in a business affecting interstate commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. Respondent, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and the subject matter.

3. Complainant's amendments were proper and are granted.

4. Respondent was in violation of 29 C.F.R. § 1910.212(a)(1) and 29 C.F.R. § 1910.261(a)(3)(ix) for failing to provide guards on the in- running nip points on the prefold straight line leather belt and the five half-inch belts and pulleys on the No. 183 gluer, respectively.

5. Respondent has failed to establish its greater hazard defense, because it did not show that the hazard of compliance outweighed those of noncompliance.

6. Complainant is not estopped from alleging the violation in this case.

7. Penalties of $700 are reasonable and appropriate.


ORDER

It is ORDERED:

1. Serious Citation 1, Items 1 and 2 as amended, are affirmed

2. Penalties of $700 are assessed. Dated this 21st day of March, 1990.

JOE D. SPARKS
Judge

FOOTNOTES:

[[1]] In view of our disposition, we do not reach Smurfit's contention that the Secretary is collaterally estopped from proceeding under 29 C.F.R. § 1910.212(a)(1) by a prior decision of Administrative Law Judge Paul L. Brady, which vacated an alleged violation of that standard on similar facts at a box manufacturing facility in Middletown, Ohio. Smurfit Diamond Packaging Corp., 84 OSAHRC 51 C8 (No. 83-1012, 1984) (ALJ), rev'd on other issues, 784 F.2d 217 (6th Cir. 1986)

[[2]] The citation consisted of two items alleging inadequate guarding of moving parts on the gluing machine. Unlike item 1, which deals with a belt used to feed the product through the machine, item 2 is concerned with the belt and pulley system used to power the machine itself. Originally, both items and the corresponding portions of the complaint alleged a violation of 29 C.F.R § 1910.219(e)(1)(i), which requires guards on power-transmission belts. About one week before the hearing the Secretary moved to amend item 1 to allege a violation of § 1910.212(a)(1) on the ground that § 1910.212(e)(1)(i) was inapplicable because the belt in question was not a power-transmission belt. The judge granted the motion. Smurfit does not take exception to that portion of the judge's decision affirming item 2 of the citation.

[[3]] One of the issues specified in the Commission's direction for review and briefing notice was whether the judge erred in failing to make credibility determinations to resolve the conflict than the testimony regarding the distance from the operator to the nip point. The Secretary contends that the judge made implicit credibility determinations which the commission should not disturb Smurfit argues that because the judge did not give reasons to support this acceptance of the Secretary's testimony over that of Smurfit's witnesses, the Commission is free to makes its own judgment as to the credibility of the various witnesses. Neither party asks that the case be remanded to the judge for further findings, and we note that Judge Sparks is no longer with the Commission.
While the Commission may defer to an implicit rejection of conflicting testimony, E.L. Jones & Son, 14 BNA OSHC 2129, 2132-33, 1991 CCH OSHD ¶ 29,264 pp.39,231-32 (No.87-8, 1991), the Commission is not required to do so. Equitable Shipyards Inc., 13 BNA OSHC 1177, 1180, 1986-87 CCH OSHD ¶ 27,859, p. 36,469 (No. 81-1685, 1987) (consolidated). Rather, the Commission has ultimate responsibility for the factual findings entered. C. Kaufman, Inc., 6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD ¶ 22,481, pp. 27,099-100) (No. 42149, 1978).

[[4]] The record does not directly state the depth of this recessed area. The two sets of start, stop, and jog buttons, however, are visible in the videotape, which shows that they are positioned on the outer corners of the recess in the framework. Since it is undisputed that the control buttons are 16 inches from the unguarded nip points, the alcove or recessed area must necessarily have been at least 16 inches deep as well.

[[1]] Section 1910.212(a)(1) of 29 C.F.R. provides as follows:
(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.

[[2]] Section 1910.261(a)(3)(ix) of 29 C.F.R. states as follows:
(a) General requirements--(1) Application. This section applies to establishments where pulp, paper, and paperboard are manufactured and converted. This section does not apply to logging and the transportation of logs to pulp, paper, and paperboard mills.
(3) General incorporation of standards. Establishments subject to this section shall comply with the following standards of the American National Standards Institute:
(ix) Safety code for Mechanical Power Transmission Apparatus, B15.1--1953 (Reaffirmed 1958).