UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 6767, 7721 & 9496
DIEBOLD, INC.,
Respondent.

January 22, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Cmmissioners.

BANAKO, Chairman:

The issue in this case is whether Respondent (Diebold) is required by 29 C.F.R. 1910.212(a)(3)(ii)[1] to guard the point of operation of its press brakes and mechanical punch presses.[2] Judge Charles K. Chaplin held that this standard was not applicable to Diebold’s machines and vacated the citations. We have reviewed the entire record. For the reasons which follow, we affirm his decision with respect to the punch presses but reverse as to the press brakes.

The Press Brakes

It is undisputed that the machines at issue were unguarded and were operated in such a manner that employees were exposed to the point of operation hazard. Diebold argues, however, that Complainant’s standards should not be interpreted to require that they be guarded. It claims that § 1910.212 is not applicable to these machines because of the applicability of a more specific standard at 29 C.F.R. 1910.217.

This argument is the same that was made and rejected in Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608, BNA 3 O.S.H.C. 1018, CCH E.S.H.G. para. 19,523 (1975); pet. for review filed, No. 75–2159 (9th Cir., May 27, 1975). We held in that case that, since press brakes are specifically excluded from regulation under § 1910.217[3], then pursuant to § 1910.5(c)(2),[4] the standard at § 1910.212(a)(3)(ii) was applicable.

Diebold asks us to reconsider our holding in Irvington Moore. It argues that the history and sources of the relevant standards show an intent not to require point of operation guarding of press brakes. Diebold points out that the source of § 1910.217 was an American National Standard, ANSI B11.1–1971, ‘Safety Standards for Construction, Care and Use of Mechanical Power Presses.’ It claims that ANSI excluded press brakes from this standard because, when it was promulgated in 1971, point of operation guarding of press brakes was not feasible. In support of this argument, Diebold points to the fact that ANSI subsequently, in 1973, promulgated a specific standard regulating press brakes, which includes requirements for point of operation guarding.[5]

If it proves anything, the subsequent promulgation by ANSI of a specific press brake standard shows that it did not intend the 1971 power press standard to apply to press brakes. This is consistent with our holding in Irvington Moore. Furthermore, the fact that the subsequent press brake standard contains provisions for guarding the point of operation is indicative of ANSI’s intention that press brakes should in fact be guarded.[6] We are therefore not persuaded that Irvington Moore should be overruled.

Diebold also claims that interpreting § 1910.212(a)(3)(ii) to require immediate point of operation guarding of press brakes leads to an illogical result, in that other types of mechanical power presses did not have to be guarded at the point of operation until August 31, 1974,[7] This anomaly, however, results from the different sources of the two standards. Complainant was directed to promulgate existing national consensus standards and established Federal standards as occupational safety and health standards under the Act.[8] The ANSI standard which was the source of § 1910.217 was a national consensus standard, and granted a three year grace period for compliance with certain of its requirements. The source of § 1910.212, however, was an established Federal standard,[9] which contained no similar grace period. Thus, any inconsistency in the standards as currently published is due to Complainant’s mandate to promulgate different source standards and to do so without making substantive changes. What Diebold requests of us is that we add a grace period to the 212 standard. The request is not for an interpretation; rather the request is that we change the standard itself. The authority to modify standards lies with the Secretary, and Diebold’s request is misdirected. 29 U.S.C. 655(b).

Diebold also claims that, if interpreted to require point of operation guarding of press brakes, § 1910.212(a)(3)(ii) is void for having been invalidly promulgated.[10] It is argued that the source of this standard did not require such guarding, and that to now construe the standard to require it amounts to an impermissible substantive change from the source standard. Diebold points out that the source standard, 41 C.F.R. 50–204.5, listed a number of organizations which published specific standards, and provided that point of operation guarding should be in accordance with such standards. The only listed organization with a standard governing press brakes or power presses when § 1910.212 was promulgated in 1971 was ANSI which, as noted above, had in effect the standard which became § 1910.217. Since the ANSI standard did not require point of operation guarding of press brakes, Diebold concludes that 41 C.F.R. 50–204.5 also did not.

Diebold overlooks that 41 C.F.R. 50–204.5, in addition to requiring guarding in accordance with the standards of the listed organizations, provided that ‘(o)ther types of machines for which there are no specific standards, and the operation exposes an employee to injury, shall be guarded.’ Thus, the source of § 1910.212(a)(3)(ii) required point of operation guarding of all machines for which there was exposure to injury, regardless of whether the listed organizations had specific applicable standards. Contrary to Diebold’s reasoning, 41. C.F.R. 50–204.5 did require guarding of press brakes, and interpreting § 1910.212(a)(3)(ii) to impose a similar requirement does not constitute a substantive change from the source standard.

Diebold next argues that § 1910.212(a)(3)(ii) is impermissibly vague in that it fails to state with particularity how guarding of press brakes is to be accomplished. We find no merit in this contention. Section 1910.212(a)(3)(ii) is a ‘performance’ standard, that is, it states the result required (protection against the point of operation hazard), rather than specifying that a particular type of guard must be used. Performance standards are generally to be preferred over those which contain specific requirements, as they give employers latitude in selecting a means of compliance which is best suited to their operation. Complainant’s standards have broad application to a variety of industries and situations. They must permit a certain degree of flexibility in order to avoid requiring some workplaces to comply with inappropriate requirements.[11]

Diebold also contends that compliance is impossible because certain commonly used guarding devices are not suited to its operations. This claim has been made in a number of cases. Garrison & Associates, 17 OSAHRC 188, BNA 3 O.S.H.C. 1110, CCH E.S.H.G. para. 19,550 (1975); Sheet Metal Specialty Co., 17 OSAHRC 212, BNA 3 O.S.H.C. 1104, CCH E.S.H.G. para. 19,546 (1975); Central Steel & Tank Co., OSHRC Docket No. 2346 (Rev. Com’n., Nov. 25, 1975). It is argued that a press brake used in a job shop must have the ability to perform a variety of operations, and that the standard guarding devices interfere with this ability to an unacceptable degree.

Because the point of operation of any machine must be sufficiently accessible to permit insertion of the material being processed, for some types of machines and some operations it will not be possible to utilize a guarding device ‘so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle ‘as required by § 1910.212(a)(3)(ii). In some cases involving press brakes, we have stated that compliance can be achieved by means such as hand tools and work rests which keep the hands of employees at a safe distance from the point of operation. Garrison & Associates, supra; Sheet Metal Specialty Co., supra.

To the extent that these decisions were predicated on the inability to the employers to use guarding devices, they are not inconsistent with 29 C.F.R. § 1910.212(a)(3)(iii), which provides that hand tools may only supplement, and not substitute for, the guarding devices required by § 1910.212(a)(3)(ii). Indeed, Complainant has recognized that, in the case of press brakes, guarding devices cannot always be used. He has therefore, since this case was tried and argued, adopted the policy that the inability of an employer to use a guarding device on a press brake shall be considered a de minimis violation if hand tools or other means are used to maintain a safe distance between the operator’s hands and the point of operation.[12] This enforcement policy is for all practical purposes consistent with our decisions.[13]

In this case, however, Diebold has not shown that the use of all types of guarding devices is impossible. For example there was evidence that a device employing a harness connected to the operator’s arms, and adjusted so as to prevent his hands from entering the point of operation, had been successfully employed elsewhere.[14] Diebold’s safety director thought that such a device would be unsuitable because it would require constant adjustment for the various operations performed by the press brakes. He was concerned that the use of an improperly adjusted harness could create in the operator a false sense of security, and lead to an accident. It was suggested, however, that the harness could be adjusted so that, at its maximum length, the operator would be able to get as close to the point of operation as would ever be necessary, but still not be able to reach into the point of operation. An automatic retractor could then be used to give the operator sufficient freedom to accomplish all other operations. Diebold offered no convincing reason why such a system could not be used. Additionally, Diebold had never attempted to install and use any type of physical restraint. Thus, on this record, we cannot say that Diebold has shown that the use of restraining harnesses is impossible.[15] At best, the record indicates that compliance may be difficult and interfere somewhat with production. Even if this is true, however, compliance with the standard is still required. Sheet Metal Specialty Co., supra.

We turn now to the assessment of appropriate penalties. Complainant proposed penalties totaling $190 for the press brake violations. Having considered the gravity of the violations, together with Diebold’s size, good faith, and prior history, we conclude that the proposed penalties are appropriate.

The Punch Presses

The record establishes that some of Diebold’s punch presses, i.e. mechanical power presses, were not guarded at the point of operation. Diebold again argues, however, that these machines are governed by § 1910.217 rather than § 1910.212. Section 1910.217 provides that presses installed prior to August 31, 1971 need not its requirements pertaining to construction until August 31, 1974.[16] We have held that point of operation guarding is one of the requirements that machines installed before August 31, 1971 need not meet until August 31, 1974. Stevens Equipment Co., 2 OSAHRC 1501, BNA 1 O.S.H.C. 1227, CCH E.S.H.G. para. 15,691 (1973).

Complainant does not dispute this interpretation of § 1910.217, but argues that the same reasoning by which we concluded that § 1910.212 applies to press brakes should be employed to find it applicable to those punch presses installed prior to August 31, 1971, for which § 1910.217 does not require immediate guarding of the point of operation. We do not agree. Section 1910.217 does not apply to press brakes because they are excluded from its requirements. The opposite is true of punch presses. The terms of § 1910.217 specifically apply to them, and in fact do require that they be guarded at the point of operation. That the requirement for compliance is delayed does not render the standard inapplicable. It is itself a part of the standard, reflecting the judgment of its drafters that it would be unreasonable to require machines already in existence to comply immediately with a complex set of detailed requirements pertaining to the construction of the machines. Reading the standard in conjunction with Stevens Equipment, supra, we conclude that the point of operation of Diebold’s mechanical punch presses need not have been guarded until August 31, 1974. It would be manifestly unfair to hold that point of operation guarding is required by another standard when § 1910.217 specifically grants a grace period for coming into compliance.

Commissioner Cleary dissents from this disposition. He would overrule Stevens Equipment for the reasons stated in his separate opinion in Trojan Steel Co., 3 BNA OSHC 1384, CCH 1974–75 OSHD para. 19,839 (No. 2885, July 18, 1975). See also Queen City Sheet Metal & Roofing, Inc., 3 BNA OSHC 1696, CCH 1975–76 OSHD para. 20,130 (No. 4322, November 6, 1975) (dissenting opinion). He would amend the pleadings to conform to the evidence under Fed. R. Civ. P. 15(b) and, with regard to the punch presses, he would find a failure to comply with § 1910.217.

Accordingly, in Docket No. 6767, item 1 is vacated, and item 8 is affirmed. In Docket No. 7721, item 7 is affirmed. In Docket No. 9496, item 7 is affirmed. Penalties totaling $190 are assessed. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

Date: JAN 22, 1976

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

It is my opinion that Judge Chaplin’s decision in this case should be affirmed in all respects. Consequently I assent to the foregoing opinion insofar as it affirms the Judge’s dismissal of the citation alleging failure to guard punch presses and dissent from the ruling overturning the Judge’s dismissal of the citations for alleged failure to guard press brakes.

In my view Judge Chaplin was correct in concluding that the press brakes were controlled by section 1910.217. In Secretary v. Irvington Moore, Division of U. S. Natural Resources, Inc., 16 OSAHRC 608 (1975), and Secretary v. Gem Top Manufacturing, Inc., 16 OSAHRC 591 (1975), I set forth reasons why 29 C.F.R. § 1910.217 rather than § 1910.212 applies to press brakes. The respondent asks this Commission to overrule its decisions in those cases. It should do so for the reasons I expressed therein.

The historical sequence and sources of the relevant standards at issue herein show an intent not to require point of operation guarding of the respondent’s press brakes. ANSI B11.1–1971, ‘Safety Standards for Construction, Care and Use of Mechanical Power Presses’ was the source of § 1910.217. The ANSI Committee Exempted press brakes from the guarding requirements of this standard. Subsequently, ANSI B11.3–1973 was adopted for press brakes but did not require compliance by former installations for three years from the date of its approval because of the ‘impossibility of updating equipment immediately.’[17]

The majority is inconsistent in relying on one hand on the subsequent 1973 ANSI press brake standard as being indicative of ANSI’s intent to guard press brakes and, on the other hand, rejecting the respondent’s arguments that the subsequent standard permitted a three-year delay before requiring compliance therewith. Furthermore, their reliance on ANSI’s intent is misplaced. Section 1910.217 was promulgated under 29 U.S.C. § 655(a) which gave the Secretary of Labor authority to adopt any national consensus standard as a occupational safety and health standard for a period of two years from the effective date of the Act without public scrutiny and without observing the procedural safeguards afforded by the Administrative Procedure Act, 5 U.S.C. § 553. However, Congress limited that authority by precisely defining a ‘national consensus standard’ in 29 U.S.C. § 652(9) as:

‘. . . any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization . . .’ (Emphasis added.)

Congress said nothing about intentions to adopt or promulgate standards in the future—and rightfully so.

It is not the function of the Secretary of Labor or this Commission to psychoanalyze standards-producing organizations and translate such psychoanalysis into enforceable standards. We do not deal in the business of convenient interpretation, but rather in the reality of existing statutory and regulatory language.

In establishing a violation of 29 C.F.R. § 1910.212(a)(3)(ii), the majority sets forth a belabored discourse on machine guarding techniques which hardly qualifies as instructive. In essence, they first disallow the proper standard for improper reasons and then apply an incorrect standard from which they pioneer safety measures the respondent had rejected because of the nature of its work. Naturally enough the majority, by its uncanny familiarity with respondent’s unique job peculiarities, places itself in the position of formulating guarding policy despite evidence that such guarding was unreasonable. They point out that prior cases hold that compliance may be achieved by the use of ‘hand tools’ and ‘work rests.’ Nonetheless, in rejecting an employer’s affirmative defense in the recent case of Secretary v. Akron Brick and Block Co., OSAHRC Docket No. 4859, January 14, 1976, Messrs. Barnako and Cleary state that a safety switch and hook are merely tools and not methods of machine guarding. Apparently, their holding on the acceptability of tools as an alternate means of guarding is to be applied so as to always be helpful to the Secretary of Labor’s case.

The respondent’s operation involves a great variation of sizes and shapes of metals formed by its press brakes. There is no convincing evidence on the record to indicate that press brake guarding for a variegated setup such as respondent’s was feasible so as to permit continuation of production. Review Commission Judge Brenton stated, in Secretary v. Garrison and Associates, 17 OSAHRC 188, 197 (1975), that:

‘[N]o manufacturer of press brakes, no employer or operator thereof has to date designed and constructed a guarding device reasonable and appropriate for point of operation on press brakes used in custom fabrication, nor has any safety expert in this field come forward with such a guarding device.’

I find no evidence in this record which alters the validity of that finding.

The lead opinion seems to conclude that section 1910.212(a)(3)(ii) is entitled to sacrosanct treatment because it is a “performance’ standard.’ In other words, no matter what the standard says do, the employer must do it or show that it cannot be done. This runs afoul of the well-reasoned decision of the United States Court of Appeals for the First Circuit in Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975). In considering a similarly vague standard in that decision, the Circuit Court held that the standard was enforceable only where the alleged violative conduct is ‘unacceptable in light of the common understanding and experience of those working in the [respondent’s] industry.’ Since this has not been established in the instant case, the citations should be vacated.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 6767, 7721 & 9496
DIEBOLD, INC.,
Respondent.

January 16, 1975

Decision and Order

APPEARANCES:

Benjamin Thomas Chinni, Esq. for the Complainant and

Hulse Hays, Jr., Esq. and Roger A. Weber, Esq. for the Respondent

Charles K. Chaplin, Judge

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 referred to as the Act), wherein respondent contested a citation issued January 30, 1974, by the complainant in docket number 6767 involving respondent’s plant at Hamilton, Ohio, under authority of section 9(a) of the Act. Respondent contested items number 1 and 8 which were set forth in the citation as follows:

Item No.	Standard Violated	Description of Alleged Violation
1	1910.212(a)(3)(ii)	June 7, 1974, July 19, 1974 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. Point of operation guards lacking on presses #1459, 442, 860, 482, and 7–1814, and 483. e.g. Point of operation guard lacking on press #481.
8	1910.212(a)(1)	July 30, 1974 Failure to provide machine guarding to protect the operator and other employees in the area from hazards such as those created by point of operation, ingoing nip points, rotating parts, and flying chips and sparks. e.g. Point of operation guarding lacking on D file inner body roll former, 14 stage roll former, cardboard shear #370 and 3/4 plate shear #976.[18] e.g. Point of operation guarding lacking for press brakes #1523, 940, 485, 1155, 1682, 1156, 1179, 1135, 1653, 1692, 381, 1693, 1645, 1718, and 1641.

Penalties of $60 for item number 1 and $30 for item number 8 were proposed.

The applicable standards provide:

§ 1910.212 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.

‘(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.’

On March 28, 1974, respondent was cited, following an inspection of its Malvern, Ohio, plant, docket number 7721, and a notice of contest was filed with respect to item number 7 of the citation which was as follows:

Item No.	Standard Violated	Date by Which Item Must Be Corrected	Description of Alleged Violation
7	29 CFR Section 1910.212(a)(3)(ii)	June 24, 1974	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 the operating cycle: (a) 7501 Verson press. (b) 7502, Verson press. (c) Nygrew-Dahly shear. (d) ?? press.[19]

A penalty of $40 was proposed for this item.

Docket number 6767 was set for trial July 26, 1974, and docket number 7721 was set for pre-trial the same date. On September 30, 1974, there was also assigned to the undersigned a case involving the same respondent and docketed as number 9496, which had been consolidated with the two earlier dockets on the representation of the parties that the factual information developed at the trial July 26, 1974, is the same that would develop in the trial of docket number 9496, and further that the legal arguments were the same in all three cases.

With respect to docket number 9496, on July 25, 1974, respondent’s plant as Wooster, Ohio, was cited and a notice of contest was filed respecting item number 7 alleging a violation of the standard at 29 CFR 1910.212(a)(3)(ii) in that:

‘No point of operation guarding was provided on press break (sic) 7941, 7476, 8839, 1441, 1652 and 8838; Lodge and Shipley shear in department 16, Niagara shear 7254 in department 27.’

A penalty of $120.00 was proposed for this item.

In its answer to the complaint respondent admitted that it regularly handled materials that moved in interstate commerce and it was engaged in a business affecting commerce within the meaning of section 3 of the Act. At the commencement of the trial the parties stipulated that the inspection was done at the plants, in conformity with normal OSHA procedures.

The Evidence

At the beginning of the trial the parties stipulated that the compliance officer, who was unavailable because of being hospitalized, would testify in docket numbers 6767 and 7721 that the cited machines were unguarded at the point of operation, that the inspections were conducted and the proposed penalties computed in accordance with Labor. Department instructions, and that the cited punch presses in docket 6767 are mechanical power presses and the presses in docket number 7721 were installed prior to 1970.

At this point complainant offered the testimony of Mr. Ronald J. McCann, the Secretary’s area director, as a safety expert in the area of machine guarding and press brakes. There was no objection, after voir dire, and Mr. McCann was accepted as an expert in the subject area. He described the nature of injuries from punch presses and the methods of guarding, i.e., restraints, sensing devices, two-hand controls, sweeping devices, barrier guards, gate guards and combinations of these. He described the operation of a press brake and stated similar devices to those used on punch presses could be used. He stated he had used guards and found that they worked. With regard to the Labor Department policy respecting standards applicable to punch presses, he understood that the standard at 1910.217 covered them from August 31, 1974, but prior thereto they would be covered by 1910.212 respecting point of operation guarding (Tr. 49). He indicated complainant’s exhibit C–1, OSHA Program Directive #100–7, confirms this as national policy. Further, that considering all types of devices, a reasonable abatement date would not exceed 6 months.

On cross-examination Mr. McCann conceded (Tr. 60) that the machines involved in the Malvern and Hamilton plants came within a layman’s understanding of the term press brake as defined in section 1910.211(d)(46).[20] He distinguished a press and a press brake as a press being a machine designed to pierce and punch things and to move rapidly back and forth with a relatively narrow bed, whereas a press brake involved a slow type of pressing with a long type bed primarily to do forming (bending) operations and the brake was capable of finer work (Tr. 73).

Respondent called as it first witness its safety engineer from the Hamilton plant, Mr. Herbert Malicote. He testified he had worked in this plant for 32 years and was supervisor of maintenance from 1960. The presses which were the subject of the citation (docket 6767) had all been installed prior to 1970 and some of them dated to before 1936. Several years ago a program of guarding the dies used in these presses was instituted, principally guards of the barrier type (Tr. 83). This was an ongoing program and he estimated that all presses would be guarded by August 1974. He described the Hamilton works as a job shop operation with work varying in size from 4x6 inches to 3x4 feet (Tr. 85). For safety purposes tongs had been provided for small work and foot pedal guarding of all press brakes had been provided (Tr. 86). Restraints had been considered as a device but rejected as unsatisfactory in a job shop operation where frequent adjustments would be required plus the generation of a false sense of security that an unreadjusted restraint on a new job might give. Other safety devices had been considered (barrier guards, light beams, etc.) and rejected because of the job shop peculiarities. Further, that a union-management safety committee had been formed prior to 1950 and this committee met twice a month or on the call of any member and that once a month all employees participated in a safety meeting with their supervisors.

Respondent also presented its plant manager from its Malvern plant, Mr. Morton L. McKinney, who testified he had been employed by respondent over 26 years, at the Malvern plant since January 1958. He described the two cited machines in issue as being electrically powered press brakes.

Issues

Does the lack of guarding of respondent’s presses at its Malvern, Hamilton and Wooster plants constitute a violation of section 5(a)(2) of the Act?

Is press brake guarding governed by the standard at 29 CFR 1910.212 or 1910.217?

Is the standard at 29 CFR 1910.212 vague?

Discussion

The identical issue involved in these cases was before me in Sheet Metal Specialty Company, OSAHRC Docket No. 5022, April 29, 1974, now on review before the Review Commission on several issues including whether press brakes are covered by 29 CFR 1910.212(a)(3)(ii). Since that decision, the same issue has been decided in Western Steel Manufacturing Co., OSAHRC Docket No. 3528, October 8, 1974, now on review, and Gate City Steel Corporation, OSAHRC Docket No. 8597, November 25, 1974. In each of these cases was determined that press brakes were controlled by the regulation at 29 CFR 1910.217. I remain convinced that the standard governing protection of press brakes is found at 29 CFR 1910.217. Since respondent was improperly cited, the citation must be vacated. In reaching this decision I am not unmindful of the Secretary’s action November 25, 1974 (39 Federal Register No. 233, Tuesday, December 3, 1974) concerning standards respecting mechanical power presses.

Finding of Fact

The machines or tools involved in the contested citations applicable to respondent’s plants at Malvern, Hamilton and Wooster are press brakes.

Conclusions of Law

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties.

2. The standard at 29 CFR 1910.212 is not applicable to press brakes.

3. The Secretary has failed to prove noncompliance with any standard specifically applicable to press brakes.

4. Respondent is not in violation of section 5(a)(2) of the Act.

In view of the foregoing it is ORDERED that:

item numbers 1 and 8, as amended, insofar as they pertain to press brakes, and the proposed penalties of $60 and $30 in OSAHRC docket number 6747;

item number 7, insofar as it pertains to press brakes, and the proposed penalty of $40 in OSAHRC docket number 7721, and

item number 7, insofar as it pertains to press brakes, and the proposed penalty of $120 in OSAHRC docket number 9496 are vacated.

CHARLES K. CHAPLIN

Judge, OSAHRC

Dated: January 16, 1975

Washington, D.C.

---

[1] This standard states:

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.

[2] The citations in Docket Nos. 7721 and 9496 alleged that press brakes in Diebold’s plants in Malvern and Wooster, Ohio respectively were unguarded. In Docket No. 6767, Complainant alleges that both press brakes and punch presses at Diebold’s Hamilton, Ohio plant were unguarded. Numerous other citation items for all three plants were not contested.

In Docket No. 6767, the citation alleged that the press brakes violated 29 C.F.R. 1910.212(a)(1), which states, in pertinent part:

One or more methods of machine guarding shall be provided to the operator and other employees in the machine areas from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks . . ..

Diebold claims that there is inconsistency in its being cited under two different standards for the same activity. Both sections, however, mention point of operation guarding, and can be appropriately cited when a lack of point of operation guarding is alleged. See e.g. Paccar, Inc., 17 OSAHRC 595, BNA 3 O.S.H.C. 1133, CCH E.S.H.G. para. 19,595 (1975) (Absence of point of operation guarding of press brake held to violate § 1910.212(a)(1)).

[3] Press brakes are excluded by § 1910.217(a)(5), which states:

Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending and hot metal presses, forging presses and hammers, riveting machines and similar types of fastener applicators are excluded from the requirements of this section.

[4] § 1910.5(c)(2) states, in pertinent part:

. . . any 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 . . .

[5] ANSI B11.3–1973, ‘Safety Requirements for the Construction, Care and Use of Press Brakes.’ This standard was introduced into evidence by Diebold.

[6] Diebold claims that the ANSI press brake standard allows a period of three years for compliance with its point of operation guarding requirements. Even if this is true the argum3ent is misplaced. Diebold was not cited for a violation of the ANSI press brake standard, and is not before us. Our function is to determine whether violations of the Secretary’s rather than a private organization have occurred.

[7] See the discussion under ‘The Punch Presses’, infra.

[8] The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). Section 6(a) of the Act provides, in part: ‘. . . the Secretary shall . . . by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for designated employees.’

[9] The source of Sec. 1910.212 was 41 C.F.R. 50-204.5. a standard promulgated under the Walsh-Healey Act (41 U.S.C. 35 et. seq.).

[10] Commissioner Cleary adds that, in his view, no provision of the Act has empowered the Commission to declare any rules (standards) invalidly adopted or unenforceably vague. See United States Steel Corp., 2 BNA OSHC 1343, CCH 1974–75 OSHD para. 19,047 (No. 2975 & 4349, November 14, 1974) (concurring opinion); Santa Fe Trail Transport Co., 1 BNA OSHC 1457, CCH 1973–74 OSHD para. 17,029 (No. 331, December 18, 1973) (dissenting opinion), rev’d 505 F.2d 869 (10th Cir., 1974). In the absence of dispositive judicial guidance on the matter, however, he fully joins in this discussion upholding the standard.

[11] The Commission has consistently rejected contentions that the provisions of 29 C.F.R. § 1910.212 are unenforceably vague. Irvington-Moore, supra; Paccar, Inc., 17 OSAHRC 595, BNA 3 O.S.H.C. 1133, CCH E.S.H.G. para. 19,595 (1975); Boise Cascade Corp., OSHRC Docket No. 2049, BNA 3 O.S.H.C. 1671, CCH E.S.H.G. para. 20,112 (1975); Buckeye Industries, Inc., OSHRC Docket No. 8454 (Dec. 22, 1975).

[12] OSHA Field Information Memorandum #75–46, CCH E.S.H.G. para. 9915 (July 17, 1975).

[13] A de minimis violation bears no direct or immediate relationship to safety or health. 29 U.S.C. 658(a). It carries no penalty and need not be abated. See Lee Way Motor Freight, Inc., 7 OSAHRC 1128, BNA 1 O.S.H.C. 1689, CCH E.S.H.G. para. 17,693 (1974), aff’d, 511 F.2d 864 (10th Cir. 1975).

[14] There is also some evidence of record indicating that an electric eye system might be effective if it was designed to detect and compensate for brake wear, or if the braking system was adequately maintained. Diebold claims that its investigation showed that the use of such a system is not currently feasible. Because of our disposition, we need not resolve this point.

[15] Commissioner Cleary agrees with this disposition. He notes that, at most, a claim of impossibility is an affirmative defense. Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032, 1035 (2d Cir. 1975). He does not in an event consider the defense to be available as a matter of law until there is an exhaustion of the Act’s variance procedure. Deemer Steel Casting Co., 2 BNA OSHC 1577, CCH 1974–75 OSHD para. 19,221 (No. 2792, January 23, 1975). Cf. G. A. Hormel & Co., 2 BNA OSHC 1190, CCH 1974–75 OSHD para. 18,685 (No. 1410, September 20, 1974), pet. for reconsideration denied, 2 BNA OSHC 1282, CCH 1974–75 OSHD para. 18,881 (October 21, 1974).

[16] The machines here at issue were installed prior to August 31, 1971, and the inspections leading to these citations occurred prior to August 31, 1974. The record shows that Diebold had a program to guard the point of operation of all its punch presses by August 31, 1974.

[17] See forward to ANSI B11.3–1973.

[18] In the contest in docket number 6767 respondent did not contest that portion of the citation item number 8 pertaining to the inner body former, stage roll former, cardboard shear and plate shear.

[19] In docket number 7721 respondent’s contest did not involve that portion of item number 7 involving the shear or flexowriter press.

[20] “Press’ means a mechanically powered machine that shears, punches, forms or assembles metal or other material by means of cutting, shaping, or combination dies attached to slides. A press consists of a stationary bed or anvil, and a slide (or slides) having a controlled reciprocating motion toward and away from the bed surface, the slide being guided in a definite path by the frame of the press.’