UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 8274
ALLIS-CHALMERS CORPORATION, a
corporation,
Respondent.
DECISION
Before Barnako, Chairman; MORAN and CLEARY, Commissioners.
BARNAKO, Chairman:
A decision of Administrative Law Judge Vernon Riehl is before us for review pursuant to
section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.,
1
hereinafter ‘the Act’). Judge Riehl affirmed two items of a nonserious citation as amended ,
which alleged violations of 29 C.F.R. 1910.133 and 1910.212(a)(1) respectively. The Judge
assessed a $60 penalty for the first item and did not assess a penalty for the second. For the
reasons below, we affirm the Judge’s disposition as to the first item, but reverse as to the second.
2
ALLEGED VIOLATION OF 29 C.F.R. 1910.133
1
Respondent contends that the Judge erred in permitting the items to be amended by the
complaint and that the citation is void because of its failure to describe the alleged violations
with particularity as required by section 9(a) of the Act. We reject both arguments. We find that
the amendments were properly granted inasmuch as they did not alter the factual allegations of
the citation but rather provided additional details so as to better enable Respondent to prepare its
case. As to Respondent’s particularity argument, we find that the citation fairly apprised
Respondent of the facts surrounding the alleged violations. See B. W. Harrison Lumber Co., Inc.,
No. 2200, BNA 4 OSHC 1001, CCH OSHD para. 20,623 (April 14, 1976).
2The standard at 1910.133 reads in pertinent part that: ‘Protective eye and face equipment shall
be required where there is a reasonable probability of injury that can be prevented by such
equipment. In such cases, employers shall make conveniently available a type of protector
suitable for the work to be performed, and employees shall use such protectors. No unprotected
The Secretary alleged that Respondent violated 1910.133 in that its employees were not
required to wear side shields on their safety glasses. The evidence shows that employees working
in four Agricultural Tractor Division buildings were operating lathes, grinders, bores, drills, and
mills, and were using pressurized air for cleaning machines. It was undisputed that these
employees were provided with and used frontal eye protection, but were not required to use side
protection. The CO and several employees testified that they observed chips and particles being
thrown from machines. Compressed air used for cleaning machines and parts also blew particles
from machines. Two employees testified that they had incurred eye injuries while wearing their
safety glasses.
Judge Riehl affirmed the violation and assessed the $60 proposed penalty. On review,
Respondent urges that the Judge erred in affirming since the Secretary did not establish by the
preponderant evidence that there existed in the workplace a hazard from flying particles. We
reject this argument. Judge Riehl, after considering and weighing the evidence fairly, concluded
specifically that a hazard existed. In such circumstances where a Judge’s finding is supported by
the evidence, we will not normally reweigh the evidence on review. Okland Construction Co.,
No. 3395, BNA 3 OSHC 2023, CCH OHSD para. 20,441 (Feb. 20, 1976). Accordingly, a
violation was established and we affirm the Judge’s disposition of the item.
3
ALLEGED VIOLATION OF 29 C.F.R. 1910.212(a)(1)
The Secretary alleged that Respondent violated 1910.212(a)(1) in that employees were
exposed to unguarded rotating parts, nip points, and points of operation created by the rotating
rear wheels of assembled tractors which were being tested. The evidence showed that, after fully
assembled tractors came off the assembly line, they were driven onto rollers for testing. During
the testing, the rear wheels of the tractors rotated at a speed of approximately 15 miles per hour.
Employees worked in near proximity to the rotating wheels. The sides of the roller were guarded
by rails 44 inches and 30 inches high respectively. However, the rear portion of the rollers was
person shall knowingly be subjected to a hazardous environmental condition. Suitable eye
protectors shall be provided where machines or operations present the hazard of flying objects,
glare, liquids, injurious radiation, or a combination of these hazards.’
3 The standard at 1910.212(a)(1) requires that “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.”
not guarded.
Judge Riehl affirmed the item. He determined that the tractors were machines within the
meaning of the standard by referring to the dictionary definition of machine. He found that the
operation of the machines exposed employees to a hazard from the unguarded rotating parts and
nip points.
On review, Respondent takes the position that the cited standard does not apply to the
tractors that are being tested. It argues that although ‘machine’ is not defined in subpart O, the
subpart does not deal with any type of moving vehicle. Respondent also points to
4
1910.212(a)(3)(iv) which, in listing examples of machines on which the point of operation must
be guarded, does not include tractors.
Having considered the Judge’s reasoning and Respondent’s arguments, we conclude that
the Judge erred in finding that the cited standard was applicable to the tractors in question. The
standard at 1910.212(a)(1) is clearly directed towards machines which are or can be used in the
production or manufacturing process. The examples of machines listed in 1910.212(a)(3)(iv),
although specifically directed toward point of operation guarding, are illustrative of the type of
machines for which other types of guarding are required. Moreover, each of the other sections of
subpart O specify safety requirements for machines used in manufacturing processes but none
specify such requirement products produced as a result of the processes. The tractors in on are
not machines which are used in the manufacturing process her are the products of the process.
For these reasons we conclude that 1910.212(a)(1) is inapplicable to the cited condition and
vacate the item.
ORDER
Accordingly, we find Respondent in violation of 1910.133 and affirm the Judge’s
assessment of a penalty of $60 therefor; we vacate the alleged violation of 1910.212(a)(1). It is
so ORDERED.
FOR THE COMMISSION:
4
Section 1910.212(a)(3)(iv) states that ‘The following are some of the machines which usually
require point of operation guarding: (a) Guillotine cutters. (b) Shears. (c) Alligator shears. (d)
Power presses. (e) Milling machines. (f) Power saws. (g) Jointers. (h) Portable power tools. (i)
Forming rolls and calenders.’
William S. McLaughlin
Executive Secretary
DATE: DEC 1, 1976
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
I agree with the vacation of the charge alleging noncompliance with 29 C.F.R. §
1910.212(a)(1). The majority err, however, in affirming the remaining contested charge because
the portion of the citation pertaining thereto is fatally defective. Not only does it fail to ‘describe
with particularity the nature of the violation’ as required by 29 U.S.C. § 658(a), but it also fails to
state any violation at all.
The citation alleges that respondent violated 29 C.F.R. § 1910.133(a) at four locations in
that its ‘employees machining . . . in assembly processes using air for cleaning and blowing parts
[were] wearing frontal eye protection.’ Apparently recognizing that this did not state a practice
5
that was contrary to section 1910.133(a), complainant attempted to correct this deficiency by an
amendment to the citation which was set out in the complaint. This amendment avers that
6
respondent violated section 1910.133 at the same four locations in that its employees who “were
machining . . . in assembly processes and using air for cleaning and blowing parts did not wear
safety spectacles equipped with side shields.” (Emphasis added.)
Section 1910.133 makes no mention of safety spectacles equipped with side shields. At
the hearing, however, complainant indicated that side shields were required to be furnished when
side as well as frontal protection was necessary because of the following reference in 29 C.F.R. §
1910.133(a)(6):
‘Design, construction, testing, and use of devices for eye and face protection
shall be in accordance with American National Standard for Occupational and
Educational Eye and Face Protection, Z87.1–1968.’
As I have previously indicated, a citation is not a civil pleading. Rather, it is a unique
document, created by statute, which cannot be substantively amended pursuant to the Federal
Rules of Civil Procedure. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March
5
Compare the above-quoted wording of the citation with 29 C.F.R. § 1910.133(a)(1), the
complete text of which is contained in footnote 2.
6
In this respect, the complaint is less particular than the citation as the citation did specify
subparagraph (1) of section 1910.133 which contains six subparagraphs.
31, 1976 (dissenting opinion). The Act states in clear and certain terms that each citation (not
complaint) shall describe:
‘. . . with particularity the nature of the violation, including a reference to the
provisions of the chapter, standard, rule, regulation, or order alleged to have been
violated.’
29 U.S.C. § 658(a).
The citation in the instant case fails to describe the nature of the violation with
particularity. In fact, it alleges no violation at all, but instead asserts that the respondent complied
with 29 C.F.R. § 1910.133(a). This in itself requires that the citation by vacated. As stated in
National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1264 n. 31 (D.C.
Cir. 1973):
‘[A]n employer cannot be penalized for failing to correct a condition which the
citation did not fairly characterize.’ (Emphasis added.)
Furthermore, even if the amendment in this case were permissible, the charge as set out
in the complaint is inadequate because it does not specify what particular standard in section
1910.133 was allegedly violated. At the hearing, complainant clarified that he was proceeding
under subparagraphs (1) and (6) of section 1910.133(a). However, neither of those
subparagraphs nor any other part of section 1910.133 makes any mention of side shields for
safety spectacles. To find out that side shields are required, an employer must refer to American
National Standards Institute (ANSI) standard Z87.1–1968.
Thus, the respondent did not know the exact nature of the charge against it even after
having the citation, the complaint, and 29 C.F.R. § 1910.133 in hand. Before knowing that,
reference to ANSI standard Z87.1–1968 was still necessary. This is ridiculous. More
importantly, however, as I have previously indicated in several opinions, any standard that
requires employers to ascertain its substantive requirements from sources other than the Federal
Register is not reasonably available within the context of the Act and is, therefore,
unenforceable. Secretary v. Leader Evaporator, Inc., OSAHRC Docket No. 5225, June 10, 1976
(dissenting opinion), and the cases cited therein.
In view of the lead opinion’s reliance on Judge Riehl’s decision, his decision is attached
hereto as Appendix A.
CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:
I concur in the affirmance of the violation and penalty assessment for the failure to
comply with the standards at 29 CFR § 1910.133 for the reasons stated in the lead opinion.
I dissent from the vacating of the alleged violation with respect to the standard at 29 CFR
§ 1910.212(a)(1). I agree with and would adopt the reasoning of Judge Riehl on the matter of the
applicability of the standard to the conditions cited.
The reasoning of the majority is based on an apparent misreading of Judge Riehl’s
holding. The lead opinion states that Judge Riehl ‘. . . determined that the tractors were machines
7
within the meaning of the standard . . .’ The majority then concludes that the cited standard is
inapplicable to the circumstances here because (1) the standards in Subpart O of Part 1910 are
directed only toward machines which are being or can be used in the production or
manufacturing process; and (2) the tractors in this case are machines that are products rather than
a part of the production process.
The majority focuses its reasoning too narrowly on the tractor. The citation in this case
was directed at unsafe conditions resulting from the operation of testing the tractors on a
8
dynamometer. The hazards to respondent’s employees exist only during the roller-testing
9
procedure. It is simply inadequate to view either a tractor or the testing device by itself as the
10
majority does. Judge Riehl’s decision recognized this.
On the other hand, the result obtained by the majority seems based only on the
implication that the roller-testing is not a part of respondent’s production procedure. The
implication, however, is contrary to a specific finding by Judge Riehl that is neither explicitly
7
More precisely, the Judge found that ‘. . . the tractor in the process of being tested on the rollers
is a ‘machine’ . . ..’ (Emphasis added.).
8
8The citation reads, in part, as follows:
Failure to provide one or more methods of machine guarding to protect the
operator and other employees in the machine area from hazards such as those
created by point of operations, ingoing nip points, rotating parts; e.g., tractor
operation testing station in tractor #4. (Emphasis added).
9
The Judge found that employees were exposed to hazards of ingoing nip points and rotating
parts were created by an unguarded portion of the rear wheels of tractors in the testing operation.
Judge’s findings of fact Nos. 11, 12, and 13.
10
See, n. 7, supra.
11
disputed nor refuted by the Commission.
11
The Judge found that the testing process was ‘. . . all part of the process of manufacturing
tractors and just one more step in the final completion of the product.’ Judge’s decision at 22.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 8274
ALLIS-CHALMERS CORPORATION, a
corporation,
Respondent.
APPEARANCES:
ROBERT H. BROWN, Esquire, U.S. Department of Labor,
Office of the Solicitor, Chicago, Illinois,
for the Complainant
NICHOLAS T. JORDAN, Esquire, Attorney Corporate Employee Relations,
Allis-Chalmers Corporation, Milwaukee, Wisconsin,
for the Respondent
LEONARD S. ZUBRENSKY, Esquire, firm of Zubrensky, Padden, Graf and Bratt,
Milwaukee, Wisconsin
for the United Automobile, Aerospace & Agricultural Implement Workers of America,
Local 248
STATEMENT OF CASE
Vernon Riehl, Judge, OSAHRC
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of
1970, (29 U.S.C. 651 et seq., hereinafter called the Act) contesting a citation issued by the
complainant against the respondent under the authority vested in the complainant by section 9(a)
of that Act. The citation alleged that an inspection of a workplace under the ownership,
operation, and control of the respondent revealed the existence of workplace conditions that
violate section 5(a)(2) of the Act for the reason that these conditions failed to comply with
certain occupational safety and health standards promulgated by the Secretary of Labor pursuant
to section 6 thereof.
A citation and a notification of proposed penalty were issued to the respondent by mail
on May 6, 1974. On May 26, 1974, amendments were issued which were further clarified by a
letter of May 29, 1974. The respondent was charged with violation of the Act in regard to 65
items (complaint, answer). On May 24, 1974, respondent filed by mail a notification of intent to
contest. On May 29, 1974, respondent hand delivered to complainant an amendment thereto
stating an intent to contest items 34 (with respect to subitem b), 35 and 47 (complaint and
answer). The parties stipulated that the sole issue in this proceeding is violation of the aforesaid
items. Penalties are not in issue.
At the hearing, complainant withdrew item 35(T. 5). A description of the contested items
as contained in the citation states:
Item Standard, regulation Description of alleged violation Date by which
number or section of the alleged violation
allegedly violated must be corrected
34(b) Ref. 29 CFR Tractor #2, tractor #3, tractor #1 and June 20, 1974
1910.133(a)(1) tractor #4 employees machining
(mills and boring) in assembly
processes using air for cleaning and
blowing parts wearing frontal eye
protection.
47 Ref. 29 CFR Failure to provide one or more June 20, 1974
1910.212(a)(1) methods of machine guarding to
protect the operator and other
employees in the machine area from
hazards such as those created by
point of operations, ingoing nip
points, rotating parts; e.g., tractor
operation testing station in tractor #4.
The hearing was held on October 23, 1974. On December 23, 1974, respondent filed a
petition for modification of abatement with the Office of the Solicitor, Milwaukee, Wisconsin.
This petition requested an additional 60 day extension to March 1, 1975, from December 31,
1974, on items 48C and 48G.
On January 3, 1975, the Secretary sent a letter to the Commission stating he had no
objection to the Commission entering an order granting an extension of time to the new
abatement date requested in the petition.
On February 5, 1975, Mr. Zubrensky, on behalf of the United Automobile, Aerospace
and Agricultural Implement Workers of America, Local 248, by letter stated: ‘Please be advised
that United Auto Workers Local 248 has no objection to the extension of time requested by the
Allis Chalmers Corporation . . .’.
Accordingly, the issue is moot and we order the extension of time for abatement on items
48C and 48G to extend to March 1, 1975.
DISCUSSION
The total, credible, probative, substantial evidence establishes that the respondent has
violated 29 CFR 1910.133 in that it failed to require employees to use suitable eye protection in
Agricultural Tractor Division (ATD) building 1, 2, 3 and 4 where respondent’s machines or
operations presented a hazard to employees from flying objects.
29 CFR 1910.133 states in pertinent part:
(a) General.
(1) Protective eye and face equipment shall be required where there is a
reasonable probability of injury that can be prevented by such equipment. In such
cases, employers shall make conveniently available a type of protector suitable for
the work to be performed, and employees shall use such protectors. No
unprotected person shall knowingly be subjected to a hazardous environmental
condition. Suitable eye protectors shall be provided where machines or operations
present the hazard of flying objects, glare, liquids, injurious radiation, or a
combination of these hazards.
(6) Design, construction, testing, and use of devices for eye and face
protection shall be in accordance with American National Standard for
Occupational and Educational Eye and Face Protection, Z87.1–1968.
The ANSI standard which is referred to in 1910.133 sets forth detailed criteria for construction,
testing and use of eye protection devices. The ANSI criteria includes a statement at page 15:
‘Where side as well as frontal protection is required, the spectacles shall be provided with
sideshields.’ A sideshield is a device fitted on safety glasses that prevents objects from entering
the eye from the side (Exhibit C–4, p. 15, 16, 19, figure 8). Specific applications for use are
found in figure 8. Figure 8 lists operations for which at least sideshield protection must be
afforded. These operations include shipping, grinding and machining. Non-sideshield protection
is allowed for limited hazard use requiring only frontal protection (Exhibit C–4).
The citation, as amended, alleges that respondent failed to require use of approved eye
protection where machinery or operations presented hazards of flying objects, etc. The citation
specifically stated that safety spectacles equipped with sideshields should have been worn by
employees in Tractor 1 through 4 who were machining (including milling and boring) in
assembly processes and using air for cleaning and blowing parts (complaint). There is admission
in the record by respondent that the conditions require safety glasses providing frontal protection
for all employees. However, respondent denied conditions are so hazardous as to require more
protection; such as, sideshields for most employees. According to the respondent, the employees
wearing frontal protection only include those operating lathes, stationary pedestal grinders,
bores, drills, all types of mills, and also include employees blowing parts with pressurized air
(stipulation, Exhibit R–1, T. 192, 210).
The issue presented to us for consideration boils down to whether or not eye hazards exist
at respondent’s workplace where the standard requires at least side as well as frontal protection,
and if so, in what specific areas do the hazards exist. Respondent also raised additional issues
during the hearing in regard to alleged vagueness of the citation and standard.
The parties were presented with this same problem in a prior case. In that case, the Judge
held that in order to establish a violation of 29 CFR 1910.133(a), it must be shown: 1) that there
was a reasonable probability of injury, or 2) that there is a known existing hazardous
environmental condition, or 3) that machines or operations present the hazard of flying objects,
glare, liquids, ?? radiation, or a combination of these hazards. Secretary of Labor v. Allis-
Chalmers, OSAHRC Docket No. 5599, review ordered August 26, 1974. This case covered a
citation issued following a 1973 inspection of a division of respondent’s plant other than ATD.
The credible, substantial evidence of record establishes to our satisfaction that the
complainant has fulfilled the foresaid burden of proof in the instant case; that there is a hazard of
flying objects at respondent’s workplace and that iron particles are thrown in great quantity
throughout ATD. The iron particles are by-products of numerous machine operations including
grinding, milling, cutting, drilling, boring, reaming and turning (T. 31, 32–35, 37, 39, 40, 85,
111–124, 154, 156, 157, 160, 161). The hazardous particles break off iron parts and tools in fine
pieces. One thirty-second of an inch diameter is considered a large particle (T. 30, 54). We have
examined a sample of such particles (Exhibit C–1). The fine particles such as the ones examined
by us tend to remain airborne (T. 53).
Hundreds of machines at respondent’s workplace throw these particles in the air in
various ways during the actual metal working process. Some of them are as follows: In the
Tractor 2 machine shop, row after row of respondent’s machines with about 200 employees
operating them were observed by the compliance officer. He actually observed metal chips flying
from many mills (T. 29, 32). These mills included a horizontal lathe which threw chips 8 and 10
feet (T. 33), a Kearney and Trecker Mill which threw chips 5 feet and a multiple head milling
machine which threw particles up to 20 feet (T. 34).
Another witness, the union safety representative, testified he had observed iron particles
being thrown 3 to 12 feet by many of the aforesaid machines (T. 157). A lathe operator testified
in detail as to how his lathe, and other machines that he observed in his work area, threw iron
particles up to 10 feet (T. 114, 116, 129). The maintenance, grinding and shipping machines
were not in operation at Tractor 2 during the inspection. However, evidence establishes that slag
and grindings are normally thrown when they are used according to the union safety
representative (T. 161). Deposits of materials found on the floor confirmed this conclusion.
The same is true in Tractor 4, where both portable and stationary grinders and drills were
observed throughout the area. The machines were not in use during the inspection. Normally
these machines are used for working on or sharpening tools or deburring pieces and they throw
off metal grindings and abrasive dust (T. 27, 154, 155).
Tractor 3 also had similar types of machines in its machine areas as does Tractor 2 (T. 39,
40, 159). The evidence establishes that 40 or 50 machines were in operation which threw iron
particles (T. 39–41). It was also observed that a grinder was throwing particles 4 to 5 feet at the
time of inspection (T. 39, 40). The heavy machining divisions (e.g., Torque Tube) was not in
operation during the inspection. It was noted however that there were heavy accumulations of
grindings observed throughout the Torque Tube work area (T. 39). The union safety
representative and another employee from Torque Tube testified in detail as to operations and
iron grindings given off machines in Torque Tube (T. 131, 134, 135, 159, 160).
In Tractor 1, employees in the basic machining process are machining cast iron. There
were three machines observed in operation but they were not throwing grindings. However,
grindings were on the floor around the machines (T. 43). These accumulations would indicate
that at least some particles were thrown during the processes. Also in Tractor 1, machining was
being done on a number of tools in the 4th floor tool room. This floor was littered with cast iron
and steel particles from machining (T. 44, 161). These accumulations would indicate that some
particles are thrown.
In addition to the particles being thrown into the air by machines, great quantities are
thrown by the widespread use of high pressure air to clean the particles off parts of machines and
to provide power to tools. The use of air is widespread and indicated as follows: Almost all of
the machining tools in Tractor 1, 2, 3, and 4 referred to above were equipped with air hoses to be
used for cleaning (T. 29, 37, 38, 41, 43, 44, 129, 157). The cleaning of these tools consisted of
blowing metal particles off the machine bits, blowing accumulations of particles off the
machines themselves, and blowing particles off the part that was being worked upon (T. 29,
157). A good many of these air hoses were reduced by diffusers to 30 p.s.i. However, many other
hoses were not reduced and carried pressure up to 90 p.s.i. (T. 29, 36). Item 55 (which was not
contested by respondent) indicates respondent was cited for violation of 1910.242(b) for 40
instances of failure to reduce air hoses used for cleaning to 30 p.s.i.
Evidence establishes that many employees used the hoses for cleaning throughout the
four buildings (T. 29, 38, 41). In almost all of these cases, the use of air hoses caused particles to
scatter 10 to 12 feet from the spot where the blowing occurred (T. 35, 37, 39, 43, 157). A lathe
operator testified in detail as to the purposes for which he and his fellow employees use air for
cleaning and the manner in which they use the air. This operator stated that use of air to clean off
a machine causes particles to fly 6 or 7 feet (T. 122).
Air from these hoses was also used to blow off parts on assembly lines. At Tractor 4,
chips of metal were blown off of chassis coming out of the washer prior to painting and out of
the degreaser. Dust and grindings were blown out of holes in each chassis (T. 27). These
particles would be blown 5 or 6 feet (T. 28). Also, chips were blown out of parts in the valve
washer (T. 153). In Tractor 2, a similar operation was performed as parts came out of the
transmission housing washer. These grindings were blown up to 12 feet in distance (T. 35). A
lathe operator in this location testified that parts he sends to the parts washer are often full of iron
particles and chips (T. 116, 117).
The use of air to power tools also causes particles to fly, e.g., in Torque Tube in Tractor
3, while wearing safety glasses without sideshields, an employee testified how iron particles flew
into his eye on different occasions because air used to power portable tools caused particles to
ricochet off a machine (T. 132–133).
Thus it is established by direct observation that metal particles fly through the air at
respondent’s plant. It is also to be noted that the evidence establishes that iron particles were
observed throughout respondent’s workplace on floors, machines, worktables, on platforms and
in skid boxes (T. 27, 39, 40, 41, 43, 44, 46, 47, 114, 134). From this, we may most reasonably
conclude that the particles were thrown to their location on the floor, etc., by machines or by use
of air for cleaning.
We find that the flying particles, described above, are a definite hazard to employees.
There is a hazard in the operation of metal cutting machines, and the attendant use of air for
cleaning. Charles Ustine, a lathe operator, testified as to how operators are endangered by flying
particles. His testimony would indicate that employees, including himself, would turn their heads
many times per hour to place a piece on their worktable or skid box or to remove a piece. He also
glances at a gauge on his machine. This type of movement exposes the unprotected side of the
safety glass and allows particles to get in (T. 114). Ricocheting particles are also possible from
these activities (T. 179, 181). Many employees also work in close proximity to machines other
than their own, e.g., the Terney and Trucker Mill had several work stations within 5 or 6 feet of
it (T. 34). Several employees were working within a few feet of a working grinder in Tractor 3
(T. 40). The machines are only 8 to 12 feet apart in Tractor 2 basement machine shop (T. 43). In
Tractor 1 machine shop the employees work on machines within 5 to 10 feet of each other (T.
161). These crowded conditions, when considered in the light of the distance particles often fly,
present a hazard of an employee being hit by a particle from an adjacent machine in operation (T.
119, 121, 122). A particle is just as likely to hit a bystanding employee on an adjacent machine
as anywhere else because they are flying particles over which he has no control nor the ability to
anticipate. This is a hazard also to employees walking down the aisles. It is noted that as the
compliance officer walked down an aisle he was hit by particles from a lathe 8 to 10 feet from
the position of impact (T. 33).
Some of respondent’s employees are parts runners, foremen, inspectors, analysts, or even
operators moving to another machine. It was the testimony of Mr. Ustine that ten employees
besides the lathe operators move in the aisles of his department each day and that he occasionally
moves between machines. Often employees, such as a foreman, will move close to him while his
machine is operating (T. 122–215). Hazards also exist in assembly areas where parts are cleaned
by air, e.g., the aforesaid parts washing. The air hoses, especially where over 30 p.s.i., blow
particles off parts with considerable velocity. The particles can be concentrated when they are
blown out of holes. This being especially dangerous since employees near the degreaser work in
groups (T. 28).
Six or seven employees work within an 8 to 12 foot area in the valve area (T. 153).
Accordingly, it can be seen that bystanding employees could be easily hit in the side of their eye
with airborne particles.
The respondent’s OSHA-100 injury record establishes to our satisfaction that there is a
very definite hazard from conditions prevailing in the area in question (stipulation, Exhibit D).
These records made from July 1, 1971, to September 26, 1974, establish that medical treatment
for recordable occupational injuries or illnesses was administered on 485 occasions. On these
occasions, 87 or about 18 percent involved eye injuries to employees as follows:
E. Occupation Foreign Body Denuded Eye Other Total
Assembly 11 3 2 16
Machining Operations 30 3 2 35
Grinding 1 1
Repair 4 4
Foremen 4 1 5
Washers 3 3
Others 16 2 4 22
69 9 8 86
Two employees, Ustine and Baaske, who appeared on the aforesaid records several times
for eye injuries, testified concerning their injuries to illustrate the circumstances behind the
record. Ustine, a lather operator, stated that each time he was injured he was machining cast iron
while wearing safety glasses without sideshields. At these times, a particle or particles of iron
entered his eye when he turned his head to the side to adjust the machine (T. 112, 113, 117,
stipulation, Exhibit D). After the last such incident, Ustine asked for and received from
respondent safety glasses equipped with sideshields (T. 118).
Baaske testified that he had gotton cast iron dust in his eyes many times when wearing
safety glasses without sideshields, he used tools powered by air. The air in the tools blew the iron
dust into his eyes (T. 133, 134). He also testified that several other employees he works with,
who wear safety glasses without sideshields, have had iron particles get into their eyes (T. 135,
136).
An iron particle in the eye is certainly not to be taken lightly. When projected into the
eye, the iron particles are irritating and abrasive (T. 53, 93). These particles may scratch the eye
or denude (scrape off) part of it (T. 112, stipulation, Exhibit D). It should be noted that on a
number of occasions it was necessary for an outside specialist to remove the particles. Both
Baaske and Ustine testified as to the several occasions they were sent to a doctor for removal of
particles entering their eyes notwithstanding the use of frontal safety glasses. Baaske testified he
was sent to the doctor three or four times in 1974. On these occasions, the doctor had
anesthetized the eye and used special equipment to remove the particle (T. 132).
From all the foregoing, it is readily apparent that severe hazard to employees’ eyes exist
in many portions of ATD. It is our opinion that these hazards are of such magnitude that the
employees’ eyes must be protected by at least side protection as well as frontal protection. All of
the facts indicate that employees are not only exposed to hazards from the front but are
constantly exposed to hazards from the side from adjacent machines and processes, from
particles ricocheting, and from employees own machines and processes whenever they turn their
head for any one of many common reasons.
The standard in question requires the use of a type of protection suitable for the work
being performed (29 CFR 1910.133(a)(1)). All of the evidence of record establishes to our
satisfaction that use of safety glasses without side protectors is hazardous to the employees.
The standard in subsection 6 guides employers further by requiring them to provide
protection in accordance with ANSI Standard Z87.1–1968 (Exhibit C–4) which standard
specifically states sideshields shall be used where employees are exposed to side hazards (page
15).
The ANSI Standard goes even further by setting forth, in figure 8, lists of operations and
hazards where side protection is recommended. This list includes the hazards of flying particles,
as contained in the testimony of record, which exists during machining and grinding operations.
The fact that the eye protection is listed as ‘recommended’ and not ‘required’ is immaterial to
finding of a violation herein. Page 15 of the ANSI Standard requires side protection where
hazards exist from the side. Figure 8 gives the employer alternate types of protection such as cup
goggles or full face masks to be used by employees for even more protection than afforded by
sideshields. There very definitely is guidance for employers of such a nature as to compel the
respondent to furnish sideshields for the hazards involved.
We do not find from the total evidence that the Standard 1910.133 is vague but find to the
contrary that it is specific.
All of the evidence of record certainly gives the respondent reasonable notice of a hazard
from particles entering from the side with unprotected glasses. U.S. Court of Appeals, Fifth
Circuit, Ryder Truck Lines, Inc., v. Secretary of Labor, 497 F.2d, 230 (1974) regarding personal
protective equipment, including foot protection states:
‘In considering the claimed vagueness of the regulation, we are mindful of two
critical factors: first, this regulation involves remedial civil legislation in
contradistinction to criminal legislation; secondly, the rights guaranteed by the
First Amendment are not remotely related to this case. Hence, we must consider
the statute ‘not only in terms of the statute ‘on its face’ but also in light of the
conduct to which it is applied.’ United States v. National Dairy Corp., 372 U.S.
29, 36, 83 S.Ct 594, 600, 9 L.Ed.2d 561 (1963). The regulation appears to have
been drafted with as much exactitude as possible in light of the myriad
conceivable situations which could arise and which would be capable of causing
injury. Moreover, we think inherent in that standard is an external and objective
test, namely, whether or not a reasonable person would recognize a hazard . . .. So
long as the mandate affords a reasonable warning of the proscribed conduct in
light of common understanding and practices, it will pass constitutional muster.
United States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947).’
(emphasis added) See also McLean Trucking Company v. OSAHRC and the
Secretary of Labor, U.S. Court of Appeals, Fourth Circuit, (1974)
In Secretary of Labor v. Union Camp Corp., OSAHRC Docket 3905, the Judge states:
‘Thus the standard must necessarily be expressed in general terms and depend for
its application upon the circumstances of each case. The employer is required to
think and use his expertise gained in the operation of his business in order to
comply with the standard. This is not grounds for declaring a standard vague and
unenforceable. Due process does not require that an employer be informed of
every course of action he is to take.
Where an employer takes a course of action pursuant to a standard which is
general in nature, he will be judged on the basis of whether his action was
reasonable under the facts.’
The credible, substantial evidence of record establishes that the respondent has not
provided the proper eyeglasses with sideshields in numerous places in violation of the standard.
The record shows that respondent was in violation of the standard in virtually all of the areas
described. With few exceptions, all employees in the machining process wore frontal protection
but no side protection (T. 28, 38, 40, 41, 45, 47, 85, 92, 118, 125, 128, 134, 153, 155, 158–161).
Respondent required side protection only in grinding operations (R–1, T. 192, 209, 210) Frontal
protection only was required in all others. It is to be noted also that in practice respondent’s
employees in grinding operations did not wear side protection as required in respondent’s
program (T. 39, 40, 49, 85, 155). This would indicate a lack of continuing diligence on the part
of the respondent in providing safety equipment for its employees as indicated by the standard.
The Union Bargaining Agent, Ustine, testified that he visited the work areas of 40 lathe
and internal and external grinder operations. Ustine specified that besides himself and one other
man, all the other employees wore frontal protection only (T. 128). This testimony, if credible
and we believe it is, establishes that respondent was in violation of the standard in all of the areas
previously described in this decision. There were violations of the standard requiring sideshields
in Tractor 1—basement machine shop, 4th floor tool room; Tractor 2—in its entirety with the
exception of the small tire assembly area on the south end and a welding area on the northwest
end (T. 156); Tractor 3 in its entirety, and Tractor 4—parts washer area and areas immediately
surrounding grinders scattered throughout the building.
Respondent by way of rebuttal seemingly relied on a defense that their injury record
showed no hazards and second, that sideshields were undesirable because of reduced side vision.
We feel that respondent has been quite sincere in its efforts to establish a program to
reduce eye injuries. We feel however that they are in error in feeling that they have gone far
enough to comply with the Act.
Respondent’s chief witness, John A. Churchill, testified that an 81 percent drop in eye
injuries occurred when they instituted their eye protection program in 1953 (R–1, T. 192, 193).
This we feel is correct.
However, we disagree with respondent’s feeling that the foreign body injuries set forth in
Exhibit D are insignificant and consisting only of parking lot dust, a $20 doctor bill to the
company, and at worst a bit of fine iron dust easily removable (T. 195, 198, 206). Respondent’s
witness, Churchill, admitted that he had only been present at a shop hospital when a foreign body
was removed from an ATD employee’s eye half a dozen times since 1969 (T. 202); that he is not
responsible for ATD; and that he only visits ATD several times a year (T. 200, 201). We feel that
witness Churchill has not brought to bear sufficient concern with regard to eye injuries in the
light of the total evidence.
The U.S. Court of Appeals, Fifth Circuit, in the case of Ryder Truck Lines, Inc., v.
Secretary of Labor, 497 F.2d, 230 (1974), stated:
‘The legislative history of the statute reveals that its declared purpose is ‘to assure
so far as possible every working man and woman in the Nation safe and healthful
working conditions.’ 29 U.S.C. § 651(b). It is noteworthy that the Act does not
establish as a sine qua non any specific number of accidents or any injury rate.
Hence, Ryder’s reliance on ‘only 10 injuries in five years’ is misplaced. Moreover
the Act specifically encompasses non-serious violations, i.e., violations which do
not create a substantial probability of serious physical harm. 29 U.S.C. §
666(g)(j). Avoidance of minor injuries, as well as of major ones, was intended to
be within the purview of this liberal Act.’ (emphasis added)
In our view any consistent pattern of injuries whether minor or otherwise to spondent’s
employees’ eyes is a matter of serious concern. If the use of sideshields can significantly cut this
injury rate, and we believe it will, then the quicker that respondent can furnish its employees
glasses with sideshields in the various departments wherein there is a danger from flying
particles of metal or other material, the better that it should be done.
Witness, Churchill, on cross-examination stated that respondent’s eye injury record
would be a cause for concern if something reasonable could be done to reduce it (T. 205).
Following this, he admitted that the use of sideshields could reduce the eye injury rate 10 to 20
percent or possibly more (T. 214). ?? testimony by respondent’s own witness establishes that it is
certainly reasonable and not arbitrary in any way to require the use of such sideshields in all of
the instances illustrated by the testimony whereby there is a hazard to the employees not using
them.
The total testimony indicates that respondent’s other defense that the side-protection
shields reduces the side vision causing accidents is not well founded. We feel that this is a
conclusion unsupported by the total facts of record.
We note further that respondent admitted it has never had an accident to date in ATD
caused by the use of sideshields (T. 202). This would certainly indicate the necessity of using
them in all of the operations where there is danger from flying particles. Further than that clear
plastic sideshields that afford side vision are available for use by respondent’s employees.
We are somewhat puzzled as to why all sides insisted on trying this case (especially
respondent) when testimony from respondent’s own witness established that any employee in a
plant, except a truck drive or crane operator, would be given sideshields to wear if he wanted
them (T. 196).
To summarize: The respondent is in violation of item 34(b) of the citation for the reason
that he has failed to furnish sideshields on the glasses of his employees who are exposed to iron
and other particles being thrown into their eyes while in the course of their employment.
Respondent has violated 29 CFR 1910.212(a)(1) by failing to provide one or more
methods of machine guarding to protect employees in the area of the Tractor Test Station from
rotating tractor wheels of tractors being tested.
Section 1910.212(a)(1) provides in pertinent part:
(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.
This standard was violated in Tractor 4 at respondent’s workplace. The Tractor Roll Test
Station had no guard to keep employees in adjacent aisleways away from rotating tires of tractors
being roll tested.
When roll testing, respondent’s employees roll tractors onto rollers as the tractors come
off the assembly line. These tractors range in size from relatively small models such as the
Model 200 shown in the Stipulation, Exhibit B, to large models such as the 7030, partially shown
in the stipulation, Exhibit B, which have rear axles up to 120 inches wide (much wider than the
200) and tires six feet in height (T. 64, 144). 47 tractors are tested on an average day. The
proportion between small and large tractors varies. At times it could be 50 percent of each; and
other times 75 percent large tractors (T. 143). The test station itself consists of two pairs of test
rollers, each 4 foot long (T. 164). On the right side of the right pair of rollers is a 44 inch high
iron rail. On the left side of the left pair is a 30 inch rail (T. 164, Stipulation, Exhibit B). It is
about 12 feet from rail to rail (T. 164). The left rail was 44 inches high several years ago but was
lowered so that the ends of the axels of the larger models being tested would not hit it (T. 64,
146). Additionally, several years ago a two part gate between the rails guarded the rear of the test
station once a tractor was driven on (T. 165). Each pair of rollers is equipped with bumpers on
the outside end to prevent tractors from sliding sideways off the rollers (T. 63). An employee
drives the tractor onto the rolls by braking and clutching at the same time (T. 141). Once the
tractor is placed on the roll, its rear wheels are constantly rotating through all gears. During this
testing, various aspects of the operation are checked including steering, clutching, power
direction, etc. About half of the inspection is spent in 4th or 5th gear (T. 140, 141). It takes about
8 to 10 minutes to inspect the large models. Small models take 4 to 5 minutes (T. 141, 220). At
the conclusion of the inspection, the tractors are moved from the rolls by applying the brakes and
clutch to jump the tractor off the rolls (T. 141). As the tractor comes off the rolls, it makes a
sharp left turn and proceeds southward down the aisle adjacent to the test station. Meanwhile,
another tractor will often be placed on the rolls (T. 141, 142).
During this test, the hazardous rotating parts of the tractor, which should be guarded, are
the rear wheels. A dynamometer test of the rotating wheels during testing revealed that they
rotate at a speed of 15 miles per hour (slightly more when jumping off the rollers) (T. 221). On
viewing the rotating wheels at this rate of speed, it appears to the eye that the lugs on the wheels
and the tread on the tires are not there (T. 56).
The respondent is charged with a violation of 1910.212(a)(1). The question that we must
decide is whether the operating tractor in the process of being tested at the Roll Test Station shall
be considered a ‘machine’ within the meaning of the Act. A ‘machine is not defined by the Act.
The evidence of record establishes to our satisfaction that the tractor in the process of being
tested on the rollers is a ‘machine’ within the meaning of the Act and should be protected by the
provisions of Section 1910.212(a)(1).
The Occupational Safety and Health Act is a remedial statute designed ‘. . . to assure so
far as possible every working man and woman in the Nation safe and healthful working
conditions . . .’ (Section 2(b) of the Act).
The definition of ‘machine’ consistent with the purposes of the Act must be wide enough
to protect employees while in the course of their work at the employer’s worksite.
Wherever possible words of a statute should be interpreted in their ordinary everyday
sense. Malet v. Riddel, 383 U.S. 569, 571 (1966). This is also true of an administrative
regulation.
The American College Dictionary, 1970, at pages 729–730 defines ‘machine’ as:
1. An apparatus consisting of interrelated parts with separate functions, which is
used in the performance of some kind of work. . . .
2. A mechanical apparatus or contrivance; a mechanism.
3. Something operated by a mechanical apparatus, as an automobile, a bicycle, or
an airplane . . ..
Webster’s Unabridged Dictionary, 1959, defines ‘machine’ at page 1474, as:
4. * * * Popularly and in the wider mechanical sense, a machine is a more or less
complex combination of mechanical parts, as levers, gears, sprocket wheels,
pulleys, shafts and spindles, ropes, chains and bands, cams and other turning and
sliding pieces, springs, confined fluids, etc., together with the framework and
fastenings supporting and connecting them as when it is designed to operate upon
material to change it to some preconceived and definite manner, to lift or transport
loads, etc., a sewing machine, a hoisting machine, a printing machine, and a
flying machine are examples. Machines other than those for hoisting material are
commonly designated by special names. as the particular forms of hoisting
machines . . . heat and hydraulic engines, hydraulic and pneumatic tools, pumps,
etc., . . .
The National Safety Council Accident and Prevention Manual For Industrial Operation,
1959, at 23–3, states that, ‘although machinery covers a tremendous variety of machines, all
machinery movement consists of a few simple mechanical motions. Mechanisms produce either
rotary motion or reciprocating motion or a combination of both.’
Therefore, when considering the above definitions, it appears that ‘machine’ or its
collective ‘machinery’, should be defined as almost any mechanical unit with moving parts that
expends energy. The evidence shows that, in the instant case, the tractor while being tested on
the tractor test rollers meets the definition of ‘machine’. This is all part of the process of
manufacturing tractors and just one more step in the final completion of the product. The
operation itself with unguarded sides presents a hazard of the rotating wheels and points that are
exposed to respondent’s employees in and around the machine for various reasons.
It is to be noted that the language of the standard does not modify the word ‘machine’ in
anyway or limit it in anyway whatsoever.
Elementary statutory construction dictates that a law or regulation which is clear on its
face should not be modified by implication. Respondent is in error in its contention that a tractor
testing on rollers is not a ‘machine’ within the meaning of the standard.
It is absolutely immaterial that the standard does not specifically identify the machine in
the instant case. There are only a few machines mentioned in the standard. Every machine
known to technology as a matter of fact has not been listed. It is certainly presumed that the Act
was meant to cover any dangerous situation that might arise in the operation of any machinery by
an employee during the course of his employment at an employer’s worksite.
It is our holding that standard 1910.212 covers any and all machines wherein there is a
hazard to the operator from such hazards as those created by points of operation, ingoing not
points, rotating parts, flying chips, and sparks. There is no question whatsoever in our mind that
any and all such machines must be properly guarded with area guards, two hand tripping devices,
electronic safety devices, etc.
Respondent is responsible for setting up manufacturing operations, using reasonable
discretion, determining what is meant by ‘machine’, and for exercising such discretion in
creating proper safeguards for his employees.
The standard covers any ‘machine’ which is a hazard to employees in whatever area said
machine can be found. The thrust of any standard’s emphasis is towards the abatement of a
hazard that endangers any employee.
We feel that the standard 1910.212 is most applicable to be facts observed by the
compliance officer.
The preponderance of the credible evidence indicates that the tractor is a machine and
that there are hazards from rotating parts and ingoing nip points. This hazard arises out of the
spinning of the two rear tractor tires during the course of inspection. Ingoing nip points are
created by the tire and fender of the tractor or the wheels and rolls when the tractor is in reverse
(T. 68, 170). Employees were exposed to the hazard of coming into contact with the rapidly
rotating, treaded tires which would cause them to be thrown forward with substantial force if the
tires were rotating forward (T. 68). While the tractor is in reverse, the employee could be thrown
backwards or could be drawn into the nip point created by the tire and fender (T. 68, stipulation,
Exhibit B). The rough surface of the tire can catch an employees clothes (T. 170). The end of the
axle with its protruding bolt could catch an employee’s clothing (T. 73).
The low rails on the ends of the rollers do not guard against the hazard. The left guard is
only 30 inches high, not adequate to catch a tripping employee. The ends of the wider axles
frequently are located 8 inches above the guard and even with it or over it (T. 145, 164). The 30
inch guard does not keep employees away from the left wheel and axle. The rear of the test
station is open so that an employee could walk into or trip into a wheel. A swinging gate to
protect the rear of the station once was utilized and in service but is now abandoned. It should be
utilized again.
The compliance officer observed respondent’s employees in a position of being exposed
to these unguarded hazards. Some of the employees were standing near the left rear and right
front tires. He also observed pedestrian traffic on both sides of the tractor test (T. 103). There
was pedestrian traffic in the east aisle (near the left wheel) this included assemblers, supervisors
and repairmen (T. 147, 163). Also tractors are driven down the aisle and a garden tractor hauls
trailer dollies (T. 147, 163). It must be noted that all of this traffic takes place in a space that
measures 15 feet from the left wheel of the tractor Test Station to the east wall of the building (T.
163). Employees were observed walking down the east aisle while a tractor was being tested and
another tractor was moving down the aisle (T. 148). The potential hazard is increased thereby
since a tractor with a 120 inch axle will take up 10 of the 15 feet of aisleway and there is no real
control over whether the driver of the moving tractor will stop (T. 148).
Respondent’s employee pedestrians could potentially be caught between a moving tractor
and a tractor being tested at the Tractor Test Station. This is especially dangerous if the tractor
being tested is a large one or if it slips to the left side of the rollers as sometimes occurs. Some of
respondent’s employees have been observed coming as close as two feet of a tractor being tested
(T. 148). Oil, anti-freeze, water and loose nuts and bolts in the aisleways in front and behind the
Tractor Test Station add to the hazard since employees could trip or slip on these items and a part
of their body could come in contact with the moving rear wheels (T. 56, 57, 65, 66, 72, 143, 144,
165).
Respondent states that there has been a lack of accidents at this Tractor Test Station and
relies heavily on this fact by way of defense.
This is not the criteria involved in the interpretation of the standard.
In the case of Secretary of Labor v. Cornland Dressed Beef, OSAHRC Docket 4985, it
was held:
‘We cannot rely on this or any employee’s experience of not having an accident in
12 years as being sufficient evidence to keep Respondent from being in violation
of Section 17(k).
It is entirely foreseeable that one of these years this employee will leave this earth
for his reward or maybe even be promoted to a supervisory post. This of course
would entail the employment of a new person in this post. A new person might
not be as experienced or knowledgeable about this safety hazard and might
inadvertently become entangled in the unguarded screw conveyor.
*14 This new person may lack the expertise of his predecessor in deftly
manipulating the product into the two different conveyors and may slip, trip, or
fall into the screw conveyor.
This is why standards such as the one to guard the screw conveyors are adopted.
Experience has shown that people in the past, in close proximity with screw
conveyors have become entangled and have lost a leg or their life.
Experience even in such a man who has spent twelve years on the job could not
conceivably keep him from having an unavoidable slip, trip, or full into the area
in an unguarded moment.
29 CFR 1910.212(a)(1) is simply a standard adopted because of previous painful
experience involving employees who became caught in unguarded screw
conveyors. This standard is a requirement imposed by OSHA that Respondent
must comply with if the employee is to be guarded so far as humanly possible
from injury while working near screw conveyors.
* * *The fact that there has been no accident does not mean that they have
complied with the standard. * * * Wherever these tragic accidents have happened,
perhaps is the only time in the plant’s history that such a thing has occurred. Once
is enough for any plant and its safety program. The cost is enormous in human
suffering, loss of the employee involved and tragedy for the employee’s family.’
It is to be noted that the same section (29 CFR 1910.212(a)(1) is involved in the instant
case and the Cornland Dressed Beef case. Both involve unguarded hazardous moving parts of
machinery which could produce injury to an employee. In both cases, the respondent relied on
the fact there had been no accidents at the exposed hazardous work point. The hazard in both
cases is a rotating part of machinery.
Respondent has raised the issue of whether or not it is proper for the complainant in his
complaint to amend the citation. The complainant, in its complaint, amended both items of the
citation in issue here.
Item 34 was amended so that all of 1910.133 was alleged. Accordingly, subsection (6)’s
statement as to what would be considered approved proper eye protection equipment was
included in the charge. The citation was made more specific as to the violation observed and how
abatement could be achieved, e.g., no safety spectacles with sideshield was substituted for
‘wearing frontal eye protection’. Item 34 was also amended to correct a drafting error by the
compliance officer where an ‘and’ was omitted between ‘processes’ and ‘using’. The compliance
officer stated that it was his intention to cite for improper eye protection both where air hoses
were used and where machining without air hoses was occurring (T. 89–91). Item 47 was also
amended to specify the exact exposure to hazards of employees exposed to rotating tractor
wheels. The original citation having specified employee exposure at the test station to hazards of
point of operation, ingoing nip points and rotating party.
This, in our opinion, made the complaint more specific and enabled respondent to better
meet the allegations of the citation. We see no merit in respondent’s objection to the amendments
and there is no prejudice to respondent by such amendment.
The legal criteria for amendment was fully met in this case since ‘administrative
pleadings are very liberally construed and very easily amended’. National Realty and
Construction v. OSAHRC, 489 F.2d 1257, 1264, N. 31, (C.A.D.C. 1973), ‘the (liberal
amendment) rule has particular pertinence here, for citations of the 1970 Act are drafted by non-
legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the
Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.’
Accordingly, we feel respondent’s objection to amendment of the citation is without merit. The
total evidence as outlined herein establishes to our satisfaction that items 34(b) and 47 of the
citation (the only items at issue herein) must be affirmed.
FINDINGS OF FACT
Based upon the testimony of the witnesses, the documentary evidence, the stipulation, the
entire record and considering the arguments and briefs of the parties, we make the following
findings of fact and conclusions of law.
1. Respondent at all times relevant herein, was a corporation employing employees at its
principle office and its manufacturing facility at West Allis, Wisconsin. A substantial proportion
of the goods produced at West Allis is produced for interstate commerce and shipped outside of
Wisconsin.
2. The West Allis facility is divided into four profit centers. The citation and penalties
proposed concerned an inspection of the profit center designated as Agricultural Tractor Division
(ATD).
3. A compliance officer, accompanied by representatives of respondent and employees,
made an inspection of ATD on March 11, 12, 14, 15, 18, 19, 21, 22 and April 2, 3, 1974.
4. A citation and notification of proposed penalties were issued on May 6, 1974, in regard
to 65 items. This citation was amended. Respondent contested the citation by mail on May 24,
1974. Respondent did not contest the penalties. Respondent amended the notice of contest on
May 29, 1974, and stated an intent to contest items 34(b), 35 and 47.
5. At the hearing, the complainant withdrew item 35.
6. Respondent’s machining operations, including the use of pressurized air to clean parts
of power tools, presented a hazard to employees’ eyes from flying objects, primarily iron
particles.
7. A number of respondent’s employees working at the ATD location were exposed to
the aforesaid hazards to their eyes:
(a) Tractor 1—Basement Machine Shop and Fourth Floor Tool Room.
(b) Tractor 2—the entire building except for the tire assembly area on the south end, and
a welding area on the northwest end.
(c) Tractor 3—the entire building.
(d) Tractor 4—the Parts Washer Area and areas immediately surrounding grinders
scattered throughout the building.
8. Respondent’s employees at the aforesaid locations were exposed to hazards from the
side as well as the front. In order to afford respondent’s employees minimum eye protection
appropriate under the circumstances of their employment, it was necessary that safety glasses be
equipped with sideshields.
9. Employees at all of the aforesaid locations were not required by respondent to wear,
and with rare exception, did not wear sideshields for greater protection with their safety glasses.
10. Respondent’s tractors which were being operated on the Tractor Roller Test Station at
Tractor 4, as described in item 47, are ‘machines’.
11. The rotating wheels of respondent’s tractors being tested at the Tractor Test Station
are hazardous rotating parts and create hazardous ingoing nip points.
12. These tractor wheels are not guarded by barriers or other devices to prevent
employees from coming into accidental contact with the wheels and consequently becoming
injured.
13. Numerous employees of respondent use the aisleways immediately adjacent to the
rotating tractor wheels at the Test Station and are exposed to the hazards created by the
unguarded wheels.
CONCLUSIONS OF LAW
1. Respondent is and at all times material was an employer within the meaning of section
5(a) as defined in section 3 (5) of the Act.
2. Jurisdiction is conferred upon the Commission by section 10(c) of the Act. and the
citations issued were in accordance with section 9(a) of the Act.
3. On May 6, 1974, the complainant pursuant to the provisions of section 9(a) and 10(a)
of the Act duly issued to respondent a citation and notification of proposed penalty. On May 28
and 29, 1974, complainant duly and properly issued an amendment thereto.
4. On May 24, 1974, pursuant to section 10(c) of the Act, respondent timely filed a
notification of contest which included a contest of the aforesaid citation. On May 29, 1974,
respondent duly amended said notification.
5. Complainant duly transmitted to this Commission said notification pursuant to and in
accordance with Commission Rule 7, 29 CFR 2200.7 and section 10(c) of the Act.
6. Complainant’s amendment to the citation in the complaint was proper and did not
prejudice respondent’s rights.
7. 34(b) of the citation, as amended, described with sufficient particularity within the
meaning of section 9(a) of the Act the nature of the violation and the standard violated.
8. Respondent violated 29 CFR 1910.133 in that it failed to require employees to wear
suitable eye protection, including at least sideshield protection, at its workplace where machines
or operations exposed employees’ eyes to hazards from flying objects.
9. The tractors being tested on the Tractor Roll Test Station were ‘machines’ within the
meaning of the Act, and 29 CFR 1910.212(a)(1).
10. Respondent violated 29 CFR 1910.212(a)(1) in that it failed to provide one or more
methods of machine guarding to protect employees in the area of the Tractor Roll Test Station
from rotating tractor wheels of tractors while in the process of being tested.
DECISION
1. Item 35 together with its proposed penalty is vacated.
2. Items 34(b) and 47 of the citation, as amended, and their proposed penalties are
affirmed.
Vernon Riehl,
Judge, OSAHRC
Date: April 1, 1975