UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16188
DAYTON TIRE & RUBBER COMPANY (DIVISION OF THE FIRESTONE TIRE & RUBBER COMPANY),
Respondent.

September 30, 1980

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–78 (‘the Act’). A decision of Administrative Law Judge Louis G. LaVecchia is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i).

In his decision, the judge found, among other things, that Respondent, Dayton Tire & Rubber Company, violated the standard published at 29 C.F.R. § 1910.212(a)(3)(ii)[1] and he assessed a penalty of $80 for this other than serious violation. Respondent filed a petition for discretionary review of the judge’s decision,[2] and the petition was granted by Chairman Cleary. For the reasons set forth below, Judge LaVecchia’s decision is affirmed in all respects except for the amount of the penalty for the section 1910.212(a)(3)(ii) violation. The penalty assessed by the judge for that violation is vacated. The Commission has determined that not assessing a penalty is appropriate under the circumstances of this case.

Following an inspection conducted October 20–28, 1975, at its tire manufacturing plant in Dayton, Ohio, Respondent was cited for, among other things, failure to guard the point of operation of its tire assembly machines (‘TAMs’). Approximately 240 tire builders operate TAMs at this plant. The tire builders, using TAMs, assemble component materials, including ply stock, chafer belts, beads,[3] and treads, into complete ‘green tires.’ The green tires are then sent to the curing department to become the final product.

The aspect of tire construction at issue in this case is bead setting. The bead setters are located on the TAMs, one on each side of the main tire building drum, and are of circular metal construction. The function of the bead setters is to forcefully adhere the bead to the shoulders of the tire plies. When a bead setter is in the open position, the distance from each setter to the drum is 9 to 24 inches, with the distance varying according to the type of machine used and the type of tire being made. Bead setting occurs after tire plies have been applied to the main building drum. The bead setters are actuated when the tire builder depresses a foot pedal, or, on some models, a lever. When the pedal or lever is depressed, the TAM emits a loud hissing sound before the bead setters travel to the main building drum to adhere the beads. Travel time from the rest position to the main building drum varies from 1–½ to 2 seconds. It is the closing of the bead setters to the drum that presents the hazard alleged by the Secretary in the citation and complaint.

In his decision, Judge LaVecchia determined that Respondent, in failing to adequately guard its TAMs, violated the terms of section 1910.212(a)(3)(ii). The judge found that Respondent’s safety devices and prescribed standard operating procedures did not constitute compliance with the standard since these devices and procedures did not prevent access to the hazard during the critical time when the bead setters closed on the main building drum. The judge also found that compliance with the standard could be achieved through the utilization of floor mats[4] or other safety devices that were within Respondent’s engineering and design capabilities. Finally, Judge LaVecchia, in concluding that this violation was other than serious, found that the incoming movement of the bead setters posed a hazard to the operator’s hands and fingers.

III

On review, Respondent renews a series of arguments it made before Judge LaVecchia regarding the standard published at 29 C.F.R. § 1910.212(a)(3)(ii) and the application of the standard to its TAM bead setting operations. Respondent points out that it does not know of any instance where an employer has been cited by the Occupational Safety and Health Administration (‘OSHA’) for failure to guard a TAM or any similar machine. It suggests that this omission is not an oversight, but has occurred because the TAM is a unique piece of equipment far different in mechanical function from the types of machines requiring point of operation guarding that are listed in 29 C.F.R. § 1910.212(a)(3)(iv).[5]

Respondent’s contention that section 1910.212(a)(3)(ii) does not apply to its TAM bead setting operation is not supported either by the language of the standard or by the pattern of administrative enforcement under the Act. As Judge LaVecchia concluded in his decision, the language of section 1910.212(a)(3)(ii) is broad, encompassing by its terms all machines, regardless of complexity, in which there is a point of operation exposing employees to potential injury. The overall heading of section 1910.212 is ‘General requirements for all machines.’ Likewise, section 1910.212(a)(3)(ii) is applicable according to its terms to all types of industrial machinery. Other than an exemption from the general point of operation guarding requirements for machines covered by more specific standards, there is nothing in the wording of section 1910.212(a)(3)(ii) to limit the application of the requirements of the standard or to suggest that in any way certain types of machines are exempt. Further, 29 C.F.R. § 1910.5(c)(2), which discusses the applicability of occupational safety and health standards, provides that a standard ‘shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, . . . to the extent that none of such particular standards applies.’ Respondent does not assert that a more specific standard applies to the facts here. Finally, there have been no cases decided by the Commission that in the absence of a specific exemption have limited the applicability of section 1910.212(a)(3)(ii) to certain classes of machinery.

The fact that TAMs are not listed as examples of machines requiring point of operation guarding under section 1910.212(a)(3)(iv) also does not require the Commission to conclude that TAMs are not covered by the standard. Respondent is essentially arguing that the Commission should apply the doctrine of ejusdem generis in construing the meaning of section 1910.212(a)(3)(ii). That is, when specific words (as in section 1910.212(a)(3)(iv)) follow more general words (as in section 1910.212(a)(3)(ii)), the application of the general term should be restricted to things that are similar to those specifically enumerated. See 2A Sutherland Statutory Construction § 47.17 (4th ed. 1973). However, this doctrine cannot be applied to exclude TAMs from coverage under the standard for two reasons.

First, the list in section 1910.212(a)(3)(iv) is prefaced by the words, ‘The following are some of the machines which usually require point of operation guarding.’ The use of the pronoun ‘some’ indicates that the list is not exhaustive of all machines covered by the standard. Since the wording of the standard clearly indicates that the list in section 1910.212(a)(3)(iv) is for illustrative purposes rather than to limit the scope of the standard, the doctrine of ejusdem generis should not be applied. Id. at § 47.20; Grosjean v. American Paint Works, 160 So. 449 (La. App. 1935).

Second, the machines enumerated are essentially diverse in character without features common to all from which to infer an intent to restrict the coverage of the standard to any particular class of machines. The listed machines very in size from milling machines to portable power tools. The functions of the listed machines also vary. Some of the listed machines cut material (e.g., guillotine cutters, shears, power saws), others puncture holes in material (power presses), one is used to make joints, and others are used to form material (forming rolls and calenders). Since the individual characteristics of the listed machines do not differ substantially from the characteristics of TAMs, we find nothing in section 1910.212(a)(3)(iv) to suggest that the standard does not cover TAMs.

Respondent further asserts that TAMs are not covered by the cited standard because the standard is applicable only when the operator manually positions or feeds material prior to the machine’s operation or when the operator is required to perform work on the material during the machine’s operation. Respondent points out that for other machine guarding standards the term ‘point of operation’ is defined in several places. Respondent in particular cites to the definitional sections for standards 29 C.F.R. § 1910.213–14 (woodworking and cooperage machinery), 29 C.F.R. § 1910.217 (mechanical power presses), and 29 C.F.R. § 1910.219 (mechanical power transmission apparatus). From these definitions, Respondent argues that section 1910.212(a)(3)(ii) is intended to apply only when two factors are present: (1) work is being performed by the machine on the stock, and (2) the machine operator is exposed to the area of the machine where work is actually performed upon the material. Since no manual work is performed on the TAM while the bead is actually set, Respondent argues that there is no point of operation hazard. Respondent cites language in the lead opinion in Jersey Steel Drum Manufacturing Corp., 75 OSAHRC 36/E9, 2 BNA OSHC 1663, 1974–75 CCH OSHD ¶ 19, 392 (No. 1119, 1975), which states that there is no point of operation hazard when employees are not needed to control the work.

Respondent’s argument that TAMs do not have a point of operation within the meaning of the standard since the machine automatically sets the bead once the bead-setting cycle is begun is an erroneous interpretation of the standard.[6] Respondent’s reliance upon the definition of point of operation in other machine guarding standards is misplaced because ‘point of operation’ as used in section 1910.212(a)(3)(ii) is specifically defined in section 1910.212(a)(3)(i). This subsection defines ‘point of operation’ as ‘the area on a machine where work is actually performed upon the material being processed.’ There is no reference in this definition to either the location of the machine operator, whether the operator is performing work on the material, or how the material is positioned on the machine. Without any such reference, the most logical construction of the standard is that ‘point of operation’ refers to the location on the machine where the machine performs work upon the material, not to where the operator is performing work. See Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1979 CCH OSHD ¶ 23,219 (No. 76–2419, 1978) (different definitional section). This construction of the standard also follows from the fact that that standard is plainly designed to reduce or eliminate the hazards such as pinching, squeezing, or cutting that are created by unguarded machine parts wherever such parts are located. This definition, therefore, applies to any machine which performs work on material, regardless of how that material is fed into the machine or positioned.

Since ‘point of operation’ is defined in section 1910.212(a)(3)(i), there is no need to consider definitions of ‘point of operation’ in other standards. The definitions applicable to other sections vary considerably; each definition is specifically tailored to the type of machinery covered by that section. Thus, there is no authority in other standards to support Respondent’s interpretation of the definition of ‘point of operation’ for the cited standard. See Boonville Division of Ethan Allen, Inc., Supra.

Although former Commissioner Moran, in the lead opinion in Jersey Steel Drum Manufacturing Corp., supra, concluded that the machine in that case ‘contained no point of operation [as defined in section 1910.212(a)(3)(i)] since it was operated automatically,’ this narrow definition of ‘point of operation’ was specifically rejected in the opinions of Chairman Cleary and former Commissioner Van Namee. A majority of the Commission held that a point of operation existed even where the material is automatically positioned. Additionally, this view of point of operation is reflected in B. C. Crocker Cedar Products, 76 OSAHRC 132/B6, 4 BNA OSHC 1775, 1976–77 CCH OSHD ¶ 21, 179 (No. 4387, 1976), where the Commission found a violation had occurred even though the machine operator in that case did not put his hand near the point of operation when the machine was operated properly. See also Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ¶24,074 (No. 76–4520, 1979), appeal dismissed, No. 80–4013 (2d Cir. March 19, 1980). In the present case, the bead setter actually performs work on the material (the tire plies) while it closes against the tire building drum. Therefore, a ‘point of operation,’ as defined in the standard, exists under the facts of this case.

Respondent also argues that application of section 1910.212(a)(3)(ii) to its TAMs violates due process. The Review Commission held in Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975–76 CCH OSHD ¶20,333 (No. 6767, 1976), rev’d, 585 F.2d 1327 (6th Cir. 1978) (‘Diebold’), that this standard was not impermissibly vague. Although the Sixth Circuit, on appeal in Diebold, held that the application of section 1910.212 to Diebold’s press brake machines violated due process, the court did not hold the standard invalid for all types of machinery. Rather, the court in Diebold concluded that, although the guarding requirement of section 1910.212 is stated quite generally, ‘the generality is a necessary by-product of the broad scope of the subject matter and the nearly infinite variety of machines which might pose hazards of the sort within the rule’s coverage.’ 585 F.2d at 1336.

In finding section 1910.212 to be overly vague as applied to the press brakes in that case, the court pointed to three factors. They were: (1) the inartful drafting of section 1910.217, the power press guarding standard, which reasonably led some employers to believe that press brakes were not covered by section 1910.212; (2) undisputed ‘common understanding and commercial practice’ relative to press brake guarding; and (3) a pattern of administrative enforcement in which a majority of the Commission’s administrative law judges held section 1910.212 inapplicable to press brakes. The court noted that none of these factors by itself was enough to invalidate enforcement of the standard, but that their cumulative effect deprived Diebold of sufficient notice of the standard’s requirements. The court also held that section 1910.212 could be prospectively applied to press brakes since the Commission’s decision in Irvington Moore, Div. of U.S. Natural Resources, Inc., 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974–75 CCH OSHD ¶ 19, 523 (No. 3116, 1975), aff’d, 556 F.2d 431 (9th Cir. 1977) (‘Irvington Moore’) give employers sufficient notice that press brakes were covered by the standard.

We find that an application of the three factors relied on by the court in Diebold to the facts of the present case yields the opposite result. First, unlike Diebold, the applicability of section 1910.217, the power press guarding standard, is not at issue here. Indeed, there is no contention by Respondent that another standard applies to TAMs. The second factor relied on in Diebold, industry practice regarding machine guarding, should be given less weight here than in Diebold. At issue in Diebold was a pervasive machine guarding practice covering several industries and involving a variety of employers. Respondent in this case raises the issue of a machine guarding practice with respect to one highly specialized industry (tire building). The fact that employers in one industry did not provide the requisite machine guarding does not necessarily mean that the wording of the standard is misleading, since there may be other reasons why machines ware not guarded by these employers besides misinterpretation of the standard. Further, the failure of industry to use guarding for press brakes in Diebold can be viewed as a direct consequence of the confusion by employers engendered both by the inartful drafting of section 1910.217 and the inconsistent adjudication for press brake guarding under the Act. In the present case, any industry failure to guard TAMs cannot be linked to such extenuating factors.

In regard to the third factor relied upon in Diebold, the pattern of administrative enforcement under the Act, it is clear that prior Commission cases gave Respondent notice of the broad application of general machine guarding requirements. Respondent in the present case argues that it adequately guarded its machines since employees following the company’s prescribed procedures would not be exposed to the hazard associated with the TAMs during bead setting. However, in Irvington Moore, supra, the Commission rejected a similar argument. Also, while several administrative law judges held that press brakes were not covered by section 1910.212 before the Commission ruled definitively on the issue, there are no ALJ decisions holding that TAMs or other similar machinery are exempt from the standard. Finally, as discussed previously, the language of section 1910.212(a)(3)(ii) itself is not ambiguous. Rather, the plain wording of the standard indicates that the standard is applicable to ‘all machines’ unless there is a specific exemption from guarding requirements in another standard. Thus, there is nothing in the administrative enforcement history of the Act to suggest that TAMs are not covered by the standard; rather, a reading of prior Commission cases supports the application of the standard to Respondent’s machines.

As the above analysis reveals, at most one of the three factors cited by the Diebold court is present in this case. Further, that one factor—industry experience—is not compelling in this case. Therefore, we conclude that application of section 1910.212(a)(3)(ii) to Respondent’s TAMs does not offend due process under the criteria established in Diebold.[7]

Respondent next contends that section 1910.212(a)(3)(ii) is void for being improperly promulgated. The Commission rejects this argument for the reasons stated both by the Commission and by the Sixth Circuit in the Diebold case.[8]

In a related argument, Respondent contends that section 1910.212(a)(3)(ii) should not be applied to its TAMs for public policy reasons. It asserts that since the American National Standards Institute (ANSI) is now developing a comprehensive machine guarding standard for TAMs, the Review Commission should stay enforcement in this case. We reject this argument. As we noted in our Diebold decision, it is the function of the Commission to determine whether violations of the Secretary’s standards, and not those of a private organization, have occurred. Therefore, the development of a proposed ANSI standard for TAMs is irrelevant to deciding this case. Cf. U.S. Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974–75 CCH OSHD ¶19,047 (Nos. 2975 & 4349, 1974) (Secretary’s published response denying petitions to modify standard). Finally, the Commission lacks the authority to question the Secretary’s determination that the requirements of a standard are reasonably necessary or appropriate to eliminate or reduce workplace hazards. See, e. g., Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1763, 1979 CCH OSHD ¶23, 935 (No. 76–93, 1979).

Respondent also argues that if section 1910.212(a)(3)(ii) does apply to bead setting, Respondent has complied with the standard. Pointing to Judge LaVecchia’s finding that Respondent’s standard operating procedures call for the tire builder to turn away from the machine and use both hands to separate the beads on the bead pin, Respondent contends that it need not provide additional protection to comply with the standard since the employee is not exposed to a point of operation hazard. Respondent also argues that, in addition to its standard operating procedures, the stop pedals, ropes, control buttons, as well as its use of electronic interlocks on the various automatic operations of the TAMs, assure that the operator is protected from the closing action of the bead setters.

According to the cited standard, a proper guard must be of such design and construction as to ‘prevent the operator from having any part of his body in the danger zone during the operating cycle.’ Nothing in the standard suggests that employees may be left with only partial protection from machine hazards; rather, to achieve compliance with the standard, mechanical devices must physically prevent the operator’s hand from coming into the point of operation or physically prevent exposure to injury. Hughes Brothers, Inc., supra. Respondent’s installation of stop buttons, pedals and ropes on its TAMs lessens the likelihood of injury, and this is relevant in considering the gravity of the violation. Nevertheless, despite the installation of these devices, the operator is not prevented from placing his hands in the danger zone during the bead set. Therefore, installation of these devices does not represent compliance with the standard. Likewise, while Respondent’s electronic interlocks on its TAMs prevent the operator from being exposed to point of operation hazards during some operations in the tire building process, they do not physically prevent exposure of the employee to the hazard during the critical bead set. The interlock at most only provides partial protection against the hazard posed by the bead set. Such partial protection is clearly inadequate when it is feasible for the employer to install mechanical devices that will prevent the operator from being exposed to injury. Hughes Brothers, Inc., supra.

Respondent’s reliance upon its standard operating procedures, which require the operator to work away from the machinery when the bead setters close, also does not constitute compliance with the standard. The Commission has consistently held that the cited standard requires physical methods of guarding rather than methods of guarding that depend on human behavior. Pass and Seymour, Inc., supra; Boonville Division of Ethan Allen, Inc., supra; MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD ¶23,102 (No. 76–3113, 1978); Hughes Brothers Inc., supra; Akron Brick and Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1976–77 CCH OSHD ¶ 20,302 (No. 4859, 1976). As the judge here observed, there is nothing to prevent Respondent’s employees from deviating from the standard operating procedures and placing their hands or fingers within the zone of danger. Indeed, Judge LaVecchia found that, in spite of Respondent’s standard operating procedures, operators have applied hands and fingers to the edges of tires immediately prior to the bead setting operation and that this has resulted in finger injuries. Therefore, Respondent’s use of standard operating procedures does not provide adequate protection.

Respondent also argues that TAMs do not pose a hazard to machine operators, pointing out that during the 1966–76 period there were only five reported accidents on TAMs in over 5 million man hours and that there have been no accidents since 1973. Respondent indicates that three of these injuries occurred when the tire builder tried manually to adjust a ply ring or bead ring that stuck on the tire stock after the bead setter had moved into the main building drum, and that a fourth injury involved an electrical sequence hazard that has since been eliminated. It argues that these accidents were caused by factors distinct from the inward movement of the bead setters that is at issue in this case.

The Commission rejects Respondent’s contention that the bead setting operation of the TAMs presents no hazard for the machine operators. The low number of recorded injuries has probative value regarding the existence of a hazard, but does not rebut the objective evidence of exposure to a hazard. Kroehler Manufacturing Co., 78 OSAHRC 88/B9, 6 BNA OSHC 2045, 1978 CCH OSHD ¶ 23,110 (No. 76–2120, 1978); A. E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977–78 CCH OSHD ¶ 21,573 (No. 12501, 1977), aff’d, 576 F.2d 948 (1st Cir. 1978). The incoming movement of the bead setters has resulted in several finger injuries, including lacerations, a fracture, and amputations in two instances. The fact that some reported injuries to TAM operators occurred when the bead setters malfunctioned does not negate either the existence of a hazard or the type of resultant injuries. The evidence of the record also does not show that these accidents would not have occurred if the machines had been properly guarded. Accordingly, we conclude that the Secretary has established by a preponderance of the evidence that the operation of Respondent’s TAMs exposed its employees to a point of operation hazard. See Amforge Division, Rockwell International, 80 OSAHRC ___, 8 BNA OSHC 1405, 1980 CCH OSHD ¶ 24, 439 (No. 76–3488, 1980).[9]

Finally, Respondent contends that, because there is no safety device lacking from its TAMs that has been generally accepted as sound safety practice in Respondent’s industry, it has complied with the standard. However, as discussed at note 8 supra, section 1910.212(a)(3)(ii) clearly affords notice of the performance it requires and, hence, there is no need to resort to criteria such as industry custom and practice in order to determine the extent of Respondent’s duty under the cited standard. Instead, an employer must comply with the terms of this standard unless it can prove as an affirmative defense that compliance with the standard is impossible. Amforge Division, Rockwell International, supra.

In order to establish a defense of impossibility as to either compliance or performance, an employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable. M. J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23,330 (No. 15094, 1979). Respondent in the present case has not established that guarding of its TAMs is impossible. As discussed previously, Respondent has already installed one of the suggested means of compliance, i.e., floor mats, on some of its TAMs.[10] Respondent’s argument that use of floor mats on the cited TAMs may be unreliable is speculative on the record here and hence is rejected. Further, Respondent’s witnesses did not respond to the compliance officer’s testimony that TAM operators could be protected by barrier guards, consisting of either a physical guard, a light beam curtain, a two-handed trip system, or a control panel located at such a distance that the operator is not exposed to the closing of the bead setter. Therefore, the Commission agrees with Judge LaVecchia that Respondent can achieve compliance with the standard by use of floor mats or other safety devices that are within Respondent’s engineering and design capabilities. Hence, the Commission rejects Respondent’s argument that it need not install such devices.[11]Therefore, we affirm the judge’s conclusion that Respondent failed to comply with the standard at 29 C.F.R. § 1910.212(a)(3)(ii) with respect to the bead setting operation on its TAMs.

Chairman Cleary and Commissioner Barnako conclude that Respondent has violated the Act, but, in accordance with the criteria under section 17(j) of the Act, have determined that no penalty should be assessed in this case.[12] As the Sixth Circuit’s decision in Diebold suggests, effective enforcement under the Act may in some instances, be accomplished most effectively by applying health and safety standards without assessing a penalty. Chairman Cleary and Commissioner Barnako find that an application of the criteria for assessing penalties in section 17(j) of the Act to the facts of this case yields a result consistent with the language in Diebold, supra at 1338–39. Respondent in this case has demonstrated good faith by employing some safety protection on its TAMs in the form of stop pedals, buttons and ropes, electronic interlocks, and by developing its standard operating procedures with the intent to maximize safety. Also, the low rate of accidents (only five reported accidents on TAMs in over 5 million man hours) is indicative that the gravity of the violation is low.

Accordingly, it is ORDERED that the judge’s decision finding a violation of the Act for failure to comply with the standard at 29 C.F.R. § 1910.212(a)(3)(ii) be affirmed, but that no penalty be assessed.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: SEP 30, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16188
DAYTON TIRE & RUBBER COMPANY (DIVISION OF THE FIRESTONE TIRE & RUBBER COMPANY),
Respondent.

April 18, 1977

APPEARANCES:

Gregory B. Taylor, Esq., of Cleveland, Ohio for the Complainant.

Thorley C. Mills, Jr., Esq., of Akron, Ohio for the Respondent.

Carolyn Bell (Non-Attorney), for the United Rubber Workers International Union.

DECISION AND ORDER

LaVecchia, Judge

This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), hereafter referred to as ‘the Act.’

An inspection conducted October 20 through 28, 1975 at the respondent’s tire manufacturing plant in Dayton, Ohio resulted in the issuance of four citations on November 13, 1975 alleging violations of numerous occupational safety and health standards, all in violation of Section 5(a)(2) of the Act. The respondent filed a notice of contest to several of the items alleged. At the outset of the hearing, held August 9 10, 1976 at Dayton, the parties entered into a stipulation which amicably resolved certain of the contested items.[13] The remaining contested items are set forth hereinafter. Post-hearing briefs were filed by the principal parties and the intervening labor union, which also was given party status.

The respondent conceded in its answer to the complaint, and by stipulation at the outset of the hearing, that it was engaged in a business affecting commerce within the meaning of Section 3(5) of the Act. (Par. I, Complaint and Answer). (Tr. 7).

Item 15 of Citation No. 1 alleges a violation of the standards found at 29 C.F.R. 1910.308 and 309(a) because ‘A skil 1/4’ portable drill in the carpenter shop had only a two prong connecting plug.’

Article 250 45 of the National Electrical Code, adopted by the cited standards, reads, in pertinent part, as follows:

Equipment Connected by Cord and Plug. Under any of the following conditions, exposed non-current-carrying metal parts of cord- and plug-connected equipment, which are liable to become energized, shall be grounded:

(a) In hazardous locations (see Articles 500 through 517);

(b) When operated at more than 150 volts to ground, * * *

The portable drill was found resting in a cabinet in the carpenter’s shop. (Tr. 12). It had not been tagged out of service. It was a 110 115 volt, AC type, capable of grounding through the use of a ‘pig-tail’ attachment. (Tr. 13, 43, 196). The respondent contends that subsection (b) of the NEC article quoted above rules out any violation because of the lower voltage of the drill in issue. I must agree, since subsection (a) is not applicable, dealing as it does with hazardous locations, and the plain language of subsection (b) supports the respondent’s theory. This item will be vacated.

Item 20 of Citation No. 1 alleges a violation of the standard found at 29 C.F.R. 1910.22(a)(2) for failure to keep the aisles between certain tire presses free of water and oil.

This standard reads, in pertinent part, as follows:

(2) The floor or every workroom shall be maintained in a clean and, so far as possible, a dry condition. * * *

The existence of the condition at the time of the inspections is not denied by the respondent. (Tr. 14, 15). (Ex. C 1). Employees had fallen and hurt themselves on occasion. (Tr. 81). The respondent had ordered floor mats for placing over the affected areas, and some were in place at the time of the inspections. Others had not yet been received from the manufacturer. Prior to the inspections the respondent had attempted to solve the problem by sawing grooves and constructing dikes on the floor. Neither effort had provided a solution. The belts (floor matting) were then ordered. Also antedating the inspections, the respondent had established a monthly safety inspection by qualified maintenance personnel, and daily inspections for press leaks. Leaks may appear at any time, and are inevitable in the presence of press machinery utilizing thousands of valves. (Tr. 196 197). The respondent certainly appears to have made good faith attempts to remedy the condition for which it was cited, but due to circumstances beyond its control, success has eluded it. Its efforts fall within the purview of the ‘so far as possible’ phrase of the standard, in my opinion. Accordingly, this item must be vacated.

III

Subsections 2, 8, 9, and 10 of Item 23, Citation No. 1, allege violations of the standard at 29 C.F.R. 1910.219(e)(1)(i) for failure to provide adequate guarding for horizontal belts operating 7 feet or less above floor levels.

The standard provides, in pertinent part, as follows:

Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table 0 12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed * * *

Two of the belts were located in the powerhouse, a restricted area, limited to entry by licensed powerhouse engineers. (Tr. 16, 51). Generally, not more than two or three engineers can be found within the powerhouse on any particular shift. (Tr. 201). The belts are horizontal types, operating within 7 feet of the floor, and are guarded on three sides. (Tr. 16, 17). The exposed side of the compressor is not accessible to employees passing through the area. To attain the unguarded area an individual would have to intentionally reach beyond the guard. (Tr. 200). When maintenance is performed on the machinery, the unit is shut down and tagged to indicate that such procedures are under way. (Tr. 200, 201). The third belt in issue is on the pump motor drive in the cement house. It is completely guarded except for a 2-inch opening at the bottom. The opening is not in an aisle or employee work area. (Tr. 198).

The respondent argues that remote possibilities, or exposure only by deliberate act, are not enough to establish a violation. I quite agree. In the circumstances presented it does appear that an intentional exposure would be necessary in order to sustain an injury. Therefore, there is no violation of the safety standard.

Item 35 of Citation No. 1 alleges a violation of the standard set forth at 29 C.F.R. 1910.145(c)(3) for failure to post a safety instruction sign at the site where a bale cutter was used.

The cited standard provides, in pertinent part:

Safety instruction signs. Safety instruction signs shall be used where there is a need for general instructions and suggestions relative to safety measures.

There is an instruction notice posted on a building support in the area where the bale cutter operator normally works. However, the blade cutting area is approximately 15 20 feet from the operator’s normal work area. (Tr. 212). Precautions to be observed in the performance of cutting and unjamming operations are included in the instructions. (Ex. R 17). The respondent contends (1) that the standard is unenforceably vague, citing Polycel Corp. 3 OSHC 1698 (1975), and (2) that on the merits, there is no violation. In Polycel, Judge O’Connell suggested, but did not find, that the standard was infirm for vagueness. The issue was decided on the merits in favor of the respondent in that case. The Commission affirmed the decision on review. I do not find it necessary to decide the issue of vagueness on the facts here presented. The posting of the instructions in the area where the bale cutter operator spent most of his time was sufficient, in my view, to satisfy the requirements of the standard. This item will be vacated.

Item 41 of Citation No. 1 alleges that the respondent violated standards 29 C.F.R. 1910.308 and 309(c) by failing to provide guards against breakage of two floodlights and eight sunlamps.

Article 110 17 of the National Electrical Code, adopted into the cited standards, provides, as pertinent, the following:

Guarding of Live Parts. (Not More Than 600 Volts)

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

(4) By elevation at least 8 feet above the floor or other working surface.

(b) In locations where electrical equipment would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage.’

The two floodlamps were located at the rear of a calender (a rubber and stock mating machine), about 4 feet higher than the working surface of the equipment. (Tr. 33 35) (Ex. C 22). The operator’s working station is at the front of the machine. No materials are fed into the machine at or near the floodlamps. The lamps provide illumination for the operator when he periodically steps to the side and toward the rear of the machine for the purpose of observing the internal processes for correct operation. It was not necessary for the operator to place himself in close proximity to the floodlamps during his inspections. (Tr. 203 205).

Since it is not show that the operator, or any other employee, is required to approach closely the floodlamps at the rear of the machine, it is difficult to envision accidental employee contact with the lamps. Moreover, inasmuch as no materials are fed into the machine at or near the location of the floodlamps there appears to be little or no chance of their accidental breakage by contract with rubber or stock components. I can only conclude that there was no violation of the standards in the non-guarding of the two floodlamps at the rear of the calender.

Eight unguarded sunlamps, utilized in a test of whitewall tire ability to withstand sunlight without discoloration, were found in a quality control laboratory. They were suspended about 18 inches above a table on which whitewall tires were placed for exposure to the simulated sunlight produced by the lamps. (Tr. 32) (Ex. C 21). The laboratory is a restricted area, and normally only one laboratory employee enters the room at any one time. The test requirements meet exact specifications of floodlight exposure and cross-ventilation provided by fans. No production processes take place there. (Tr. 202 203). The tires are left in place for 12 to 24 hours before being removed. The installation of guards around the floodlamp bulbs would interfere with the cross-ventilation testing by obstructing the desired type of air flow. (Tr. 203).

The compliance officer felt that the unguarded lamps presented a hazard because of possible breakage of the bulbs during the process of placing or removing tires from the platform on which they rest during the testing. Exhibit C 21 discloses that the tires are laid flat on a rectangular platform, with their whitewall sides exposed to the sunlamps suspended at least 18 inches above the working surface. The tires are laid two-wide down the length of the platform. Since this is not a production process, and the tires remain on the platform anywhere from 12 to 24 hours, there is not much activity with respect to movement of the tires. Moreover, the restriction of the area to laboratory personnel lessens the possibility of an accident. I cannot find a violation of the standards in these circumstances. It also appears that the respondent has established the infeasibility of guarding the floodlamps, because the structures surrounding them would interfere with the simulated air currents, negating the validity of the test results. I conclude that there was no violation of the standards in the sunlamp operation.

Citation No. 3 consists of one item charging the respondent with a ‘repeated’ non-serious violation of the safety standard set forth at 29 C.F.R. 1910.242(b). This is founded on an alleged failure to provide for cleaning purposes, compressed air pressures of less than 30 p.s.i., along with effective chip guarding and personal protective equipment. This standard provides, in pertinent part:

Hand and portable powered tools and equipment, general.

(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

The compliance officer testified that two of the compressed air nozzles in use of the truck tire curing line in building 44 were measured at the time of the inspection and found to be operating at 80 p.s.i. They were being used to clean curing molds. (Tr. 35, 36). The respondent had attempted to utilize air lines registering 30 p.s.i. in the mold-cleaning operation, but additional pressure was found to be necessary. The removal of foreign matter and flake residue from the tire molds is critical to the construction of a quality tire. (Tr. 205, 206). (Exs. C 17, 18).

Although the respondent challenges the validity of the standard because of alleged improper promulgation, the main thrust of its argument is directed to the feasibility of performing the essential cleaning operation at 30 p.s.i. It cites Bruckman Rubber Co. 3 OSHC 1429 (1975) in support of its position. In that case Judge Carlson, in a well-reasoned opinion, decided that the use of compressed air at pressure in excess of 30 p.s.i. to remove ‘flash’ from rubber molds was an integral part of the manufacturing process, and not a ‘cleaning’ operation within the ambit of 29 C.F.R. 1910.242(b). The standard was held inapplicable, and the Commission later upheld the Judge’s ruling.

The cited case being essentially on all fours with the situation presented here, this item will also be vacated.

VII

Item 40 of Citation No. 1 alleges a violation of the safety standard set forth at 29 C.F.R. 1910.212(a)(3)(ii) for:

Failure to guard the point of operation of machines whose operation exposes an employee to injury. The guard shall conform with appropriate standards, or be constructed so as to prevent the operator from having any part of his body in the danger zone during operating cycle. e.g. There were no point of operation guards or devices used on the following models of tire building machines throughout the tire building areas of the plant which would protect the operator when his hands were in the point of operation between the beadsetters and the main tire building drum, or when he tripped or committed the machine to its beadsetters cycling and closing on the main drum while he stood only inches in front of that closing. This hazard was noted on both the truck and passenger building tire machines, models: [Models 59 5 (sic), 75, 80, 88 D, 35, 45, 60, and 68]. Note: Beadsetters size varied depending on model of tire building machine from 20‘ to 14’ round as did the gap between the beadsetters and the main tire building drum as this horizontal closing was from 8’ to 12’ on most machines.

The cited standard provides:

General requirements for all machines.

(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.

*6 (2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.

(3) Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

(iv) The following are some of the machines which usually require point of operation guarding:

[Guillotine cutters; shears; alligator shears; power presses; milling machines; power saws; jointers; portable power tools; forming rolls and calenders]

The Operation of the Tire Assembly Machines

Approximately 240 tire ‘builders’ operate tire assembly machines (TAMs), producing over 200 different types of passenger vehicle and truck tires. (Tr. 143). About 15,000 passenger and 1,000 truck tires are manufactured daily. This has been the average volume produced over the past 10 years. (Tr. 175 176).

Tire builders, utilizing TAMs, assemble components, including ply stock, chafer belts, beads, and treads into complete ‘green tires.’ (Tr. 173). The green tires are then sent to the curing department for shaping into the final product. At each TAM the builder’s packet includes the tire specifications, an Elemental Sequence (Exs. R7 10), and applicable Safe Operating Procedures (SOPs). (Tr. 174).

Tire construction on the TAMs is similar for all types of tires. The builder applies several plies to the main building drum. He then ‘sets the bead’ by automatic operation of the bead setters. Then he turns the ply stock up over the bead to secure it to the tire shoulder. Additional plies as necessary, chafer, and other components are added to the tire while it is on the building drum. Tread is then applied, and a tread stitching operation is performed. After complete assembly of all components, the drum is collapsed and the green tire is removed and placed on the conveyor for transit to the curing department. (TR. 114, 115).

New tire builders are subjected to an extensive 8 12 week training program which, in addition to stressing the mechanics of tire building, places considerable emphasis on safety factors. (Tr. 177 185). Departmental safety meetings are held for all builders on at least a monthly basis. In these meetings supervisors review both on and off-the-job safety matters. (Tr. 186, 187).

Respondent utilizes passenger TAM models 45, 60, 80, and 88D in its Dayton plant. Truck TAM models 59J, 75, and 401 are used. (Tr. 114). Tire building on all machines with the exception of the ‘earlier generation’ model 45, is much the same. In addition, the mechanical and operational functions on all passenger models except the 45S are substantially similar. (Tr. 133). More model 60 passenger TAMs are utilized than any other single type of machine. The model 80 is identical to the model 60 in mechanical function and builder operation, except that it features a belt ply-down whereas the model 60 utilizes finger ply-downs. The 80 machine is fairly representative of the passenger TAMs at the plant. (Tr. 125, 138). The 59J and 75 truck tire machines are substantially similar in mechanics and operation. (Tr. 122, 143).

The TAMs are powered by 440 voltage electricity. (Tr. 115). Almost all tire building is done in automatic mode—that is, certain machine cycles occur automatically after builder actuation rather than by manual operation. (Tr. 123, 149). The model 59J and 80 machines are controlled through the operation of foot pedals and console buttons. The foot pedals are directly in front of the main building drum. Six are utilized, of which five are guarded against inadvertent depression. The sixth, a stop pedal, is not guarded, so that it can be actuated immediately in an emergency. (Tr. 117, 118). This pedal, when depressed, removes all power from the unit. If the bead setters should be moving in when the stop pedal is depressed, they would immediately go back to the rest position, with less than a 1/4‘ forward drift. (Tr. 117, 118; 124, 125) (Exs.Rl & 3). Both the 59J and 80 machines employ automatic cycles in a programmed electronic sequence. The automatic foot pedal actuates all automatic cycles on the TAMs. (Tr. 118).

The electrical system employed by the machines varies, but the results are substantially similar. (Tr. 118, 127). Depression of the automatic foot pedal at a given time in the building sequence brings only the first element of the automatic cycle programmed for the particular type of tire under construction. (Tr. 119, 127, 153, 157, 159, 161). For example, on the 59J model, the sequence for a single bead tube type truck tire commonly built at the considered plant, involves a number of sequential elements within automatic cycles. After the fourth ply is spliced, depression of the automatic foot pedal would activate a spring stitch ply-down before the bead-set because the spring stitch is next in sequence. (Tr. 148) (Ex. R 7, P.2).

Another electrical feature applicable to all TAMs in use at this plant is the ‘interlock’ during all automatic cycles. Whenever one component of the TAM is in operation the other components are interlocked electrically so that they cannot move while the given element is away from its rest position. (Tr. 119, 120, 128, 149, 155, 157). Thus when the bead stitchers are in motion the bead setters are interlocked from moving inwards. (Tr. 119, 128). On the 59J model the bead setters are interlocked and prevented from moving for approximately 4 1/2 seconds while the spring stitchers are in motion. (Tr. 149). On the model 80 machine, the bead setters are interlocked during the ply-down and flipper stitch phases of the automatic cycle. (Tr. 155, 156) (Ex. R 8).

The control panels on the models 59J and 80 are quite similar. They utilize a mushroom type stop button for actuation from any angle. (Tr. 122 128) (Exs. R 2, R 4). The other buttons are depressed to guard against accidental actuation. The stop button instantly shuts down the entire unit, with the effect of almost immediately retracting the bead setters if they are in the process of performing their function. (Tr. 120). The builder seldom uses buttons other than the reset and cycle activators. (Tr. 84, 123).

In addition to the safety stop pedal and control panel stop button, all TAMs have safety ropes extending around the server. When pulled they have the same effect as depression of the stop pedals or buttons, immediately shutting off the unit. (Tr. 138, 139).

The bead stitchers or ‘pineapples,’ generally operate within the same automatic cycle with the bead setters. During the automatic cycle they move around and over the drum, operating to turn up the tire plies over the bead and ‘stitch’ (adhere) the plies to the tire fabric. (Tr. 188 190).

The bead setters are of circular metal construction. They operate within an automatic cycle at a given point during the construction of tires to adhere the bead to the shoulder of the tires. The beads are steel or wire hoop-shaped components which are placed in the bead setter prior to actuation. The bead is set against the drum forcefully in order to adhere it to the shoulder of the tire stock. The ply stock is then folded up over the bead to secure it. When the bead setter is actuated by depression of the automatic cycle pedal, immediately a loud hissing noise is emitted before the bead setter moves toward contact with the building drum. (Tr. 13, 137). Travel time for the bead setter varies from 1 1/2 to 2 seconds after actuation. (Tr. 155, 219).

During the elemental sequences involved in building the various types of tires, the builder is required to turn away from his machine and use both hands to separate two beads at the bead rack behind him. The bead set (bead setter moving in with force against the main building drum) takes place while the machine operator is turned away from the machine separating the beads at the bead rack. (Tr. 150, 151). The earlier generation model 45 TAM presents a little different situation, with the bead setters coming in when the machine operator lets up on a particular lever. While activating the bead setters with his right hand, he grasps a turn-up tool with his left hand approximately 4 feet from the near edge of the drum. After the bead set is completed, the builder manually turns up the ply around the edge of the drum with a turn-up tool. (Tr. 161 164).

The earnings of tire builders are dependent upon efficient production of tires, and performance of the job tasks which are internal to automatic cycles during the building sequence enables the builder to increase his speed. Any normal internal functions which are performed outside of the automatic cycle add time to the tire building process, tending to lower the builder’s earnings. (Tr. 147).

The TAMs in use at the respondent’s Dayton plant are typical of those in general use in the tire manufacturing industry. (Tr. 216). The control panel stop button is standard, but the stop foot pedal is not so common. (Tr. 216). The safety rope is also virtually universal in the industry. (Tr. 217). The mat being utilized by the respondent on its model 401 machines is not commonly used in the industry. In the tire building industry generally, the number of accidents due to TAM operation has been quite low. (Tr. 218).

A safety mat is being utilized by the respondent on several of its model 401 TAMs on an experimental basis. The mats cover a wide area in front of the machines. In order to permit the bead setting cycle to function, the tire builder must step off the mat. The cycle will not occur while he is standing anywhere on the mat. (Tr. 30, 31) (Ex. C 16).

At least five accidents involving bead setters have been experienced at the respondent’s Dayton plant in the past 10 years. In April 1966 a tire builder lost portions of two fingers through amputation when an electrical interlock system failed and permitted the bead setters to activate while the builder’s fingers were in the danger zone. (Tr. 103). In November 1972 a builder lost the tip of a finger when the bead setters would not properly pass the stock on the drum. The builder attempted to manually assist the operation and sustained the injury. (Tr. 107). (Ex. C 15C). In March 1973 a builder suffered a fractured finger on the left hand due to bead setter operation. (Ex. C 15). In June 1973 a builder sustained contusions and lacerations of his right forefinger when the bead setters activated. He was attempting to crimp down the stock on the building drum just prior to the accident. (Tr. 87, 88) (Ex. C 15B). In August 1973 a builder sustained contusions and numbness of two fingers on the right hand due to bead setter operation. (Ex. C 15A).

Discussion

The respondent argues (1) that the cited standard is not applicable to the bead setting operation because there is no ‘point of operation’ hazard, (2) that if the standard is held to apply to bead setting, then its requirements have been satisfied, (3) that the application of the standard to the machines at issue is violative of due process, (4) that such application would be against public policy, and (5) that the standard is void for having been improperly promulgated.[14] The complainant and intervenor assert that the standard is properly applicable to tire assembly machines, and urge that the citation be affirmed.

I find no great difficulty in concluding that the cited standard applies to the respondent’s tire assembly machines, even though this may be the first case in which the issue has arisen. Focusing on the bead setting cycle, it is clear that ‘work is actually performed upon the material’ during that particular operation. It is also obvious that the forceful inward movement of the bead setters presents a significant hazard to the machine operator. Most assuredly, tire assembly machines are sophisticated pieces of machinery, but the language of the standard is very broad. It encompasses by its terms, regardless of complexity, all machines in which there is a point of operation exposing employees to injury.

The respondent has recognized the hazard, and has built certain safeguards into the machines, in the form of emergency stop buttons and ropes. A number of machines are also equipped with an emergency foot pedal. All of these will almost immediately shut down the machine when actuated. Additionally, tire building sequences have been designed to keep the operator at a safe distance during the bead setting operation.

These devices have not prevented accidents, however, because they did not actually prohibit access to the danger zone during the critical time. Taking a further step, the respondent, for experimental purposes, has equipped several of its tire assembly machines with a floor mat device which prevents the activation of the bead setters until the operator has stepped off the mat and away from the danger zone. This appears to be one type of guarding which would satisfy the requirements of the standard. There are undoubtedly others within the respondent’s engineering and design capabilities.

As stated by the Commission in Akron Brick and Block Co., No. 4859, CCH OSHD Par. 20, 302 (1976):

it is clear from the examples provided that the method of machine guarding should not be predominantly dependent upon human behavior. The plain purposes of the standard are to avoid dependence upon human behavior and to provide a safe environment for employees in the machine area from the hazards created by the machine’s operation.

The standard recognizes that men do not discard their personal qualities when they go to work. Although men take to the job their intelligence and skills, they also take along their emotional makeup and any tendency to neglect any specified course of conduct...

In the light of this language, the construction of elemental sequences which in theory turn the employee away from the machine, reaching for beads, just before the automatic activation of the bead setters, is not a satisfactory guarding device within the meaning of the standard. It assumes that the employee will not deviate from the prescribed sequence. The accident experience of record proves the invalidity of the assumption.

The respondent’s contentions with respect to violations of due process and public policy are not persuasive and must be rejected. It is my conclusion that the respondent has violated the machine guarding standard at issue.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The following facts are specifically determined in resolving the issues:

1. The respondent, Dayton Tire and Rubber Company, a division of The Firestone Tire and Rubber Company, maintains a place of employment in Dayton, Ohio, where it is engaged in the manufacture of tires, utilizing materials produced outside the state of Ohio and shipping finished products to points outside the state of Ohio.

2. An inspection of the respondent’s Dayton plant was conducted by authorized representatives of the Department of Labor during the period October 20 28, 1975.

3. Citations and a notice of proposed penalties were served upon the respondent on November 19, 1975. The respondent served a notice of contest upon a representative of the Department of Labor on December 13, 1975.

4. During the inspection, a Skil portable drill, 1/4‘, was observed in a storage cabinet in the Carpenter Shop, ungrounded. It was rated 110 115 volts, AC.

5. During the inspection, oil and water were observed in various locations between the respondent’s curing presses, where employees were required to walk from time to time. These conditions posed a slipping hazard. The respondent had ordered floor mats for placement in the affected areas. Some of these were in place at the time of the inspection. Leaks may appear at any time and are inevitable in the presence of machinery utilizing thousand of valves. The respondent had made good faith attempts to remedy the situation, but had failed to completely control matters because of circumstances beyond its control.

6. During the inspection several horizontal belts on compressors in the Pump or Power House were observed to be guarded on three sides, but open on the fourth, inner side. These were located in a restricted area of the plant, occupied by only two or three licensed powerhouse engineers per shift. The unguarded portion of these compressors was not accessible to employee contact, except in the event of intentional exposure.

7. During the inspection horizontal belts on a pump motor drive in the cement house were observed to be exposed to a height two inches above the floor. The drive otherwise was completely guarded. Inadvertent contact with these belts is highly unlikely.

8. During the inspection a bale cutter was observed to have no safety instruction sign at a point adjacent to the knife cutting area. However, a Safe Operating Procedure describing proper operation with respect to the knives was posted in the operator’s task area 10 15 feet away. This is the area where the operator spends 75 85% of his work time.

9. During the inspection, flood lights on the back of the respondent’s four-roll calender were observed unguarded. These lamps are not in a materials-handling area, and it was not necessary for employees to expose themselves to any hazard posed by the unguarded lamps.

10. During the inspection, eight unguarded sunlamps were observed in a quality control laboratory. These were being utilized to test the ability of whitewall tires to resist sunlight without discoloration. They were suspended about 18 inches above a table on which the tires are placed in a flat position. No exposure of the lamps to significant breakage hazard was shown.

11. During the inspection, air nozzles used as an integral part of the production process in readying used tire molds for new green tire molding were found to have measured nozzle pressure of approximately 80 pounds per square inch. The respondent cannot properly clean out flakes and bits of rubber from the molds without using more than 30 p.s.i. It has tried to do so and has failed. The proper removal of foreign matters from the molds is essential to the construction of a quality tire.

12. During the inspection a large number of truck and passenger tire building machines (TAMs) were observed, which posed a hazard to the operators. The hazard resulted from exposure of hands and fingers to the incoming movement of the bead setters.

13. In spite of the standard operating procedures which require the operator to turn away from the tire assembly machines during the activation of the bead setters, operators have frequently found it necessary to apply hands and fingers to the edges or overlap of the tire immediately prior to the bead setting operation. This has resulted in finger injuries.

14. Although several tire assembly machines are equipped with an emergency stop pedal which deactivates the bead setters, a large number of the respondent’s TAMs are not equipped with this device.

15. On four occasions during the period November 1972 through August 1973, operators suffered finger injuries resulting from the triggering of the bead setters on the respondent’s tire assembly machines. In two instances, the operators lost portions of their fingers through amputation.

16. The injuries sustained by the tire machine operators during the 1972 1973 period did not result from intentional disregard of safe operating procedures.

17. The respondent has equipped a few of its truck tire assembly machines with an electrically operated floor mat device which permits activation of the bead setters only when the operator has stopped off the mat.

18. Approximately 100 of the respondent’s tire assembly machines were not equipped, at the time of the inspection, with floor mat devices or any other form of satisfactory guard to prevent the operators’ fingers or hands from coming into contact with the bead setters during their operating cycle.

CONCLUSIONS OF LAW

1. At all times pertinent hereto, the respondent was an employer within the meaning of Section 3(5) of the Act, engaged in a business affecting commerce, and having employees.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter herein.

3. The citation, notification of proposed penalty, and notice of contest were served by and upon the respective parties in accordance with Section 10 of the Act.

4. The respondent did not violate the following safety standards, litigated herein:

29 C.F.R. § 1910.308(a) and 309(a); N.E.C., NFPA 70 1971, Article 250 45.

29 C.F.R. § 1910.22(a)(2);

29 C.F.R. § 1910.219(e)(1)(i);

29 C.F.R. § 1910.145(c)(3);

29 C.F.R. § 1910.308(a) and 309(a); N.E.C., NFPA 70 1971, Article 110 17(b);

29 C.F.R. § 1910.242(b).

5. The respondent violated the safety standard set forth at 29 C.F.R. § 1910.212(a)(3)(ii), as alleged in Citation No. 1, as amended, under Item 40.

6. The violation found under No. 5 above was non-serious.

7. Due consideration having been given the criteria in 29 U.S.C. § 666(i), the civil penalties assessed in the order below are reasonable and appropriate for the specified violations, under the circumstances shown.

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, settlement stipulations, and the record as a whole:

(1) Respecting unlitigated matters, it is ORDERED:

(a) That subsection 3 of Item 23, and Item 44 of Citation No. 1, as amended, are vacated;

(b) That Items 8, 9, subsections 1 6 of Item 15, subsections 1, 4, 5, 6, 7, 11, and 12 of Item 23, Items 27, 32, 34, 36, the last example of Item 41, and Item 46 of Citation No. 1, as amended, are affirmed;

(d) That Citation No. 4 is affirmed;

(e) That civil penalties of $60 and $80 are assessed on Items 23 and 36 respectively of Citation No. 1, as amended; that a penalty of $100 is assessed on Citation No. 2; and a penalty of $700 is assessed on Citation No. 4.

(2) Respecting litigated matters, it is FURTHER ORDERED:

(a) That Citation No. 3 is vacated;

(b) That Items 15, 20, 23, 35 and 41 of Citation No. 1, as amended, are vacated;

(d) That a civil penalty of $80 is assessed for the violation found under Item 40 of Citation No. 1, as amended.

Louis G. LaVecchia

Judge, OSHRC

Dated: April, 18, 1977

Chicago, Illinois.

[1] The standard provides as follows:

§ 1910.212 General requirements for all machines.

(a) Machine guarding—(3) Point of operation guarding.

[2] Respondent’s petition for discretionary review raises the following issues:

(1) Is section 1910.212(a)(3)(ii) applicable to the bead setting operation on Respondent’s tire assembly machines (TAMs)?

(2) Does application of the cited standard violate due process of law?

(3) Was this standard improperly promulgated and thus void ab initio?

(4) Do public policy considerations suggest that the cited standard should not be applied in this manner to TAMs?

(5) If the cited standard is applicable, has its performance criterion been satisfied by the combination of active and passive safety devices and procedures on the TAMs?

[3] The bead is a steel wire, hoop-shaped component which is installed in a tire to give it special strength at points of maximum stress.

[4] A floor mat prevents the activation of the bead setters until the operator of the TAM has stepped off the mat and away from the danger zone. Respondent had already equipped several of its TAMs (models that were not cited by the Secretary) with floor mats.

[5] This subsection provides as follows:

(iv) The following are some of the machines which usually require point of operation guarding:

(a) Guillotine cutters.

(b) Shears.

(d) Power presses.

(e) Milling machines.

(f) Power saws.

(g) Jointers.

(h) Portable power tools.

(i) Forming rolls and calenders.

[6] Even under Respondent’s suggested restricted definition of point of operation, it has violated section 1910.212(a)(3)(ii) for at least some of its TAMs. Testimony at the hearing indicated that for some tires on some model TAMs tire builders used their fingers to press down the tire plies. Judge LaVecchia in his findings of fact determined that operators have frequently found it necessary to apply hands and fingers to the edges or overlap of the tire immediately prior to the bead setting operation. Thus, tire builders are positioning or performing work on the material immediately before the machine’s action on some machines.

[7] Respondent also contends that section 1910.212(a)(3)(ii) is unenforceably vague as applied to its TAMs because protective devices such as floor mats or two-hand devices have not been recognized as necessary in the tire building industry. However, this argument overlooks the fact that the standard itself clearly places employers on notice of the performance it requires. Further, barrier guards, two-handed tripping devices, and electronic safety devices are listed in section 1910.212(a)(1) as examples of guarding methods. Hence there is no need to resort to criteria external to the standard to determine whether employers have adequate notice of the standard’s requirements. See Hughes Bros., Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD ¶22,909 (No. 12523, 1978); Pass & Seymour, Inc., supra.

[8] Respondent in essence argues that section 1910.212 is improperly promulgated with respect to TAMs because the machine guarding suggested by the Secretary in this case was not required under the source of the standard, 41 C.F.R. § 50–204.5, a standard promulgated under the Walsh-Healey Act (41 U.S.C. §§ 35–45). However, in our decision in Diebold, we concluded that ‘. . . the source of section 1910.212 required point of operation guarding of all machines for which there was exposure to injury.’

The Sixth Circuit, in upholding the Commission’s conclusion in Diebold that the standard was validly promulgated, also stated that ‘industrial practice and belief’ may be relevant in determining whether the promulgation of a standard pursuant to 29 U.S.C. § 655(a) from a source standard is valid. 585 F.2d at 1332. However, Respondent in this case has failed to present any convincing evidence concerning industrial practice and belief that would show that TAMs were exempt from point of operation guarding during the administration of the source standard under the Walsh-Healey Act. Additionally, we are not aware of any evidence concerning either the legislative history or the administrative enforcement experience under the Walsh-Healey Act that would show that the machine guarding requirements under that act were different from what we hold is required in this case. Accordingly, this argument is rejected.

[9] Respondent cites A & M Sheet Metal, Inc., 75 OSAHRC 89/E6, 3 BNA OSHC 1668, 1975–76 CCH OSHD ¶ 20,099 (No. 4435, 1975) and several other Commission and judge’s decisions in arguing that there is no hazard in this case. The cases cited by Respondent are factually distinguishable from this case. Unlike here, in those cases a point of operation hazard was not established by a preponderance of the evidence.

[10] According to Respondent, floor mats were installed on some of its TAMS to protect the machine operator from the rotating action of the machine’s segmented ply rings. The record reveals, however, that floor mats would also protect against the hazard associated with the closure of the bead setters.

[11] The Sixth Circuit in Diebold, supra at 1333, concluded that national safety legislation is not limited to the present ‘state-of-the-art,’ but may properly force technological advances through the promulgation of requirements which are beyond what industry is immediately capable of attaining. See also Society of Plastic Industries, Inc. v. OSHA, 501 F.2d 1301, 1309 (2nd Cir. 1975); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548 (3rd Cir. 1976). In general, the Commission subscribes to this view of the Act. However, this does not mean that an employer is required to conduct open-ended research and development in attempting to comply with the Act. See F. H. Lawson Company, 80 OSAHRC ___, 8 BNA OSHC 1063, 1980 CCH OSHD ¶ 24,277 (No. 12883, 1980), appeal docketed, No. 80–3277 (6th Cir. April 21, 1980); Samson Paper Bag Co., 80 OSAHRC ___, 8 BNA OSHC 1515, 1980 CCH OSHD ¶24,555 (No. 76–222, 1980); see also American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3d Cir. 1978), cert. granted, 435 U.S. 914 (1978).

In this case, it is clear that it is well within Respondent’s ability to devise guarding techniques that will meet the requirements of the standard. Therefore, we are not presented with a case where an employer must develop new technology in order to comply with the terms of the cited standard.

[12] Commissioner Cottine would affirm the $80 penalty proposed by the Secretary. Commissioner Cottine concludes that the Review Commission majority has failed to give due consideration to the four criteria for penalty assessment that are listed in section 17(j) of the Act. He finds that the gravity of the violation in this case is relatively high because on two occasions operators of Respondent’s TAMs lost portions of their fingers through amputation. Commissioner Cottine also finds that Respondent’s prior history under the Act does not merit a reduction in the penalty below the proposed $80, noting in particular that Respondent has committed repeated violations of other standards.

[13] The complainant moved to dismiss and vacate subsection 3 of Item 23, and Item 44 from Citation No. 1. The proposed penalties on Citations 2, 3, and 4 were reduced to $100, $100, and $700 respectively. The respondent moved to withdraw its notice of contest to Items 8, 9, subsections 1 through 6 of Item 15, subsections 1, 4, 5, 6, 7, 11, and 12 of Item 23, and Items 27, 32, 34, 36, the last example of Item 41, and Item 46, of Citation No. 1, and agreed to pay the proposed penalties on those items. The respondent further appears to have agreed to withdraw its notice of contest to Citations 2 and 4, since it agreed to pay the amended proposed penalties for the alleged violations, and also agreed that only the standards discussed in this decision remained in issue. By apparent oversight, the respondent’s withdrawal of its contest to the latter two citations was not specifically stated during the stipulation discussion. The agreement is approved.

[14] The respondent makes this contention in order to protect its rights of appeal. It is aware that this defense has been rejected by the Commission in Diebold, Inc., Nos. 6767, 7721 and 9496, 3 OSHC 1897; CCH OSHD Par. 20,333 (1976), appeal docketed, 6th Cir. No. 76 1278.