JERSEY STEEL DRUM MANUFACTURING CORPORATION

OSHRC Docket No. 1119

Occupational Safety and Health Review Commission

March 5, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Jerome C. Ditore, dated July 17, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

The respondent contested a citation under the Occupational Safety and Health Act of 1970 n1 alleging a violation of 29 U.S.C. 654(a)(2) for noncompliance with an occupational safety and health standard codified at 29 C.F.R. 1910.212 which requires guarding at the points of operation of various machines. Judge Ditore vacated the citation citing the inapplicability of the standard to the fact situation at issue. We affirm.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The machine in question, a drum hood expander, was entirely automatic. The power switch was located away from the machine itself. Various parts of the machine acted as barrier guards. To reach the machine an employee would have to consciously and deliberately climb over [*2] various obstructions. There were no direct aisles or pathways to the machine.

The citation was issued after an employee was injured by this machine. That injury resulted from the failure of a maintenance foreman to "lock-out" the machine prior to the performance of regular maintenance.

The standard, 1910.212(a)(1), states that 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.

Point of operation is defined in 29 C.F.R. 1910.212(a)(3)(i) as "the area on a machine where work is actually performed upon the material being processed."

In the instant case it is apparent that the standard was not designed to cover maintenance work, especially since maintenance work may require the circumventing of safety guarding. See Secretary v. Grayson Lumber Co., Inc., 3 OSAHRC 541 (1973).

The machine at issue in this case contained no point of operation since it was operated automatically. There was no hazard to employees at "point of operation" because employees were not needed to control the work. Since there was no "point of operation" on this machine as that term is defined [*3] by 1910.212(a)(3)(i), we find that the citation was properly vacated for the reasons assigned by the Judge.

So ordered.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in Chairman Moran's conclusion that Judge Ditore properly vacated the citation alleging that Respondent was in violation of 29 C.F.R. 1910.212(a)(1). However, I do not do so on the basis that, during its normal operation, Respondent's drum hoop expander had no point of operation as defined in the standard. In this regard, I note that 1910.212(a)(3)(i) defines point of operation as:

the area on a machine where work is actually performed upon the material being processed.

Respondent's drum hoop expander performs its function by inserting two rams into opposite ends of a steel drum. The rams then expand creating hoops around the drum. The rams are automatically activated by the drums rolling into position. On the basis of these facts, I would find that the drum hoop expander has a point of operation ["an area (the inside of the ends of the drums) where work is being performed (the formation of hoops) on the material being processed (drums)] and that point of operation is on the inside of the [*4] ends of the drums. I find that, due to the location of the point of operation, the machine presented no hazard to employees during its normal operations. This is particularly true in view of the fact that Respondent had placed horizontal bars across the top of the expander unit and two guards on each side of it. I conclude, therefore, that the drum hoop expander was adequately guarded for normal production purposes.

The instant citation, however, was issued after an employee was killed while performing maintenance work on the machine. The employee had climbed between the two rams and accidentally tripped the switch which activated the rams. Inasmuch as there was no drum present during the maintenance procedure, and in view of the fact that I believe the point of operation to be inside the drum, I would find that there was no point of operation during the maintenance work.

It should be noted that although Respondent required the drum hoop expander to be "locked-out" before maintenance work was performed, such action had not been taken prior to the previously mentioned accident. Thus, the gravamen of the Secretary's complaint is that Respondent's employees did not [*5] lockout the machine prior to the performance of maintenance work. However, I believe it is clear that neither 1910.212(a)(1) nor, for that matter, any other standard in Part 1910 requires the locking-out of machinery prior to the performance of maintenance work. Accordingly, inasmuch as there was no point of operation during the maintenance work and 1910.212(a)(1) does not require locking out, I agree that Judge Ditore properly vacated the citation.

CLEARY, COMMISSIONER, dissenting: I dissent. The citation alleging a failure to comply with the occupational safety and health standard published at 29 CFR 1910.212(a)(1) should be affirmed.

Respondent is engaged in the business of manufacturing 55-gallon steel drums. During the course of manufacture, a machine known as a drum-hoop expander is used to make two expansive ribs in the cylindrical section of each drum shell. Each drum shell rolls down tracked guideways, automatically triggering a trip switch that activates the drum-hoop expander machinery. After the trip switch is triggered, each drum shell stops on a platform that lifts the shell up between two ram heads. The ram heads are then hydraulically inserted inside each [*6] end of the shell to within two inches of each other. While the ram heads are inside the shell, an expanding meachanism on each ram head forces a rib into the drum shell. The ram heads then automatically withdraw from the drum shell permitting the shell to move along the tracked guideway to the next point of operation.

Respondent employed a maintenance foreman and three other maintenance employees whose duties included the weekly maintenance of the drum-hoop expander. In the performance of their maintenance duties on the expander, the employees had occasion to position themselves between the retracted ram heads. To foreclose the possibility of the ram heads closing on an employee during the maintenance operation, each of the employees carried a lock and key that could be used to lock the expander's power switch in the "off' position. If two employees were to work in the expander, it was possible for each employee to place his lock on the power switch. Thus, both employees could "lock-out" the expander and neither employee could remove the other employee's lock.

On June 1, 1972, the maintenance foreman and a second maintenance employee were performing their weekly [*7] maintenance duties on the expander. Neither employee had placed his lock on the power source. The foreman was positioned between the ram heads when he accidently triggered the trip switch. The resulting automatic operation of the expander caused the foreman's death.

The lead opinion states that the standard at 29 CFR 1910.212(a)(1) [hereinafter section 1910.212(a)(1)] "was not designed to cover maintenance work. . . ." n2 I disagree.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The lead opinion relies in part on Grayson Lumber Co., Inc., No. 793 (June 14, 1973) wherein the Commission held that the standard at 29 CFR 1910.219 was not violated when only maintenance personnel were exposed to an unguarded transmission apparatus. Grayson, however, is readily distinguishable from this case. The standard at 29 CFR 1910.219(c)(5) specifically excepts transmission guarding when the exposed transmission is accessible only to maintenance personnel under specified protective conditions. No such specific exception with alternative protection exists for section 1910.212(a)(1).

- - - - - - - - - - - - - - - - -End Footnotes- - - [*8] - - - - - - - - - - - - - -

Occupational safety and health standards should be construed so as not to derogate from congressional objectives. Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). This is particularly true when the standards are those adopted under section 6(a) of the Act. Under that provision the Secretary's adoption of national consensus standards and established Federal standards, such as section 1910.212(a), n3 is at the express direction of the Congress. Thus, standards should be construed consistently with the statutory objective which is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . ." Section 2(b) of the Act.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Section 1910.212(a) is an established Federal standard which was initially adopted under the Walsh-Healey Act, and which is published at 41 CFR 50-204.5. See 29 CFR 1910.221 indicating this source.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Applying this principle of construction to section 1910.212(a)(1), I would [*9] hold that the standard protects maintenance employees who are exposed to machine hazards. This broad standard reads:

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. (emphasis added).

A broad standard that is designed to cover a myriad of potentially hazardous machines and possible employee exposure must be drafted so as to be flexible rather than specific. Cf. Brennan v. O.S.H.R.C. & Santa Fe Trail Transport Co., 505 F.2d 869 (10th Cir. 1974). Reading section 1910.212(a)(1) as a whole, its clear objective is the protection of all employees who may be exposed to the hazards presented by the machine. The hazards that are expressly mentioned are read as being illustrative and not as limitations. The reason why an employee would have occasion to enter a hazardous area that is not guarded should not be relevant so long as the entering is reasonably foreseeable. [*10] If an employer has reason to know that any of his employees would enter a hazardous area, section 1910.212(a)(1) requires that these employees be afforded appropriate protection.

The lead opinion finds no "point of operation" hazard to respondent's employees during the normal operation of the expander since the machine was automatic and therefore unattended. No opinion is expressed as to a "point of operation" hazard to maintenance personnel inasmuch as the Chairman concludes that section 1910.212(a)(1) was not designed to cover maintenance work. The concurring opinion, however, finds no "point of operation" hazard during either normal or maintenance operations. Applying the definition of point of operation as set out in 29 CFR 1910.212(a)(3)(i), it concludes that the point of operation is inside the drum ends while the ram heads are forcing expansive ribs in the drums. It is then concluded that there is no hazard to the maintenance personnel since "there was no drum present during the maintenance procedure. . . ."

I would not construe the term "point of operation" as narrowly as my colleague. Rather, I would hold that the point of operation is the area including [*11] those points on the expander involved in the lifting up of the drum shell and the hydraulic insertion of the ram heads. Both of the above machine points are part of "the area on a machine where work is actually performed upon the material being processed." n4 Accordingly, I must reject my colleague's observation that the point of operation was only inside the drum. Also, as stated above, the standard is addressed without limitation to all foreseeable hazards in the machine area, and not just those at a point of operation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 29 CFR 1910.212(a)(3)(i).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

It is my view that respondent was required under section 1910.212(a)(1) to provide protection for its maintenance employees. Moreover, I would hold that in this case respondent did not provide adequate protection.

As noted above, the drum-hoop expander's power switch could be manually locked in the "off" position with the locks carried by respondent's maintenance personnel. This manual lockout procedure was not adequately enforced. Indeed, as Judge Ditore observed: [*12]

The record establishes that Respondent has a 'lock out' safety procedure policy. Such a policy without enforcement is valueless. Respondent delegated to its maintenance crew consisting of a foreman and three employees, the task of working out among themselves safety training and practice sessions. The record implies that the safety program was honored more in its breach than in its observance. Respondent's maintenance foreman, Victor Orzwestki, not only failed to follow the safety procedure for maintenance work but permitted a fellow maintenance worker, Robert Kwiatkowski, to be in the danger area of the expander (transcript references omitted). n5

I agree with these observations. The record is replete with indications of respondent's lackadaisical approach to the enforcement of the manual lock-out procedure. n6 Indeed, I would note that the lead opinion's characterization of the accident as an injury to an employee understates the significance of the accident. Respondent's maintenance foreman was killed when he failed to lock-out the expander during maintenance. Such an omission by a foreman in charge of safety is a strong indication of respondent's failure to [*13] effectively implement a safety policy. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1267 n.38 (D.C. Cir. 1973). Accordingly, I would find respondent in violation of the Act for failure to comply with section 1910.212(a)(1).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Despite these observations, Judge Ditore found no violation of section 1910.212(a) because he interpreted the standard as not affording protection for maintenance personnel.

n6 Respondent placed total responsibility for formal safety training and enforcement of existent procedures in its maintenance foreman, the same foreman who failed to lock-out the expander on the day of the fatal accident thereby exposing himself and another maintenance employee to the point of operation hazard.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[The Judge's decision referred to herein follows]

DITORE, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 631, et seq., hereinafter called the Act), contesting a citation issued by the Complainant against the Respondent [*14] under the authority vested in Complainant by Section 9(a) of the Act.

The Citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 600 Prospect Avenue, Piscataway, New Jersey, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on June 23, 1972, alleged that a serious violation resulted from Respondent's failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on April 27, 1971 (36 F.R. 10632 (1971)), and codified in 29 C.F.R. 1910.212(a)(1). The description of the alleged violation set forth in the Citation states:

55 Gal. Drum Assembly Line #1 -- Drum Hoop Expander

For failure to provide one or more methods of machine guarding, such as electronic safety devices or interlocked barrier guards, to protect employees from hazards such as those created by point of operation.

The standard as promulgated by the Secretary is as follows:

Section 1910.212 General Requirement for [*15] 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 method are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 23, 1972, from Nicholas DiArchangel, Area Director of the New Jersey area, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violation alleged in the amount of $650.00.

After Respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case came on for a hearing at New York, New York, on November 20, 1972.

ISSUES

1. Whether Respondent's Drum Hoop Expander was in violation of 29 C.F.R. 1910.212(a)(1)?

2. If it was, whether Respondent was responsible for the violation?

3. If Respondent violated the standard, whether the violation [*16] was serious?

4. If Respondent violated the standard, whether the penalty proposed was proper?

STATEMENT OF THE EVIDENCE

COMPLAINANT'S WITNESS

Joseph W. Rufolo, an Occupational Safety and Health Compliance Officer, inspected, as a result of an accident report, Respondent's plant at 600 Prospect Avenue, Piscataway, New Jersey. His inspection revealed that Respondent's machine No. 3, a drum hoop expander, lacked a machine guard at the point of operation (Exh. C-1). He ascertained from Respondent's corporate officers that on June 1, 1972, Respondent's maintenance foreman, Victor Orzwestki, was found fatally injured between the ram head sections of the expander.

During the expander's normal course of operation, 55-gallon drums are conveyed to the expander. Each drum hits a trip switch which causes the ram head sections to close inside the drum where they expand creating a hoop around the drum. The drum is released and rolls away.

Robert Kwiatkowski, one of Respondent's maintenance men, stated that on June 1, 1972, he and Victor Orzwestki were performing maintenance work on the expander. Neither of the two men had "locked out" the expander's power source. In the [*17] course of the maintenance work, Victor Orzwestki accidentally triggered the trip switch which caused the ram heads to close in on him. The expander had not been altered or used since the accident.

Officer Rufolo observed an operator of another machine about seven feet away from the expander. He observed no other employees in the area but was told that there are employees in the area. Officer Rufolo conceded that elements or parts of the expander could serve as barrier guards but he observed no such parts. It was officer Rufolo's opinion that employees in the area were exposed to a hazard from the expander's point of operation. An employee including maintenance personnel, Rufolo believed, could by conscious effort get his hands or arms over or between the expander's parts to the point of operation. Guarding would either limit entry to the point of operation, or would disconnect the expander's power source.

On the basis of his inspection, officer Rufolo recommended that a citation for a serious violation of 29 C.F.R. 1910.212(a)(1) be issued to Respondent. The seriousness of the violation was based on the probability that an accident due to the violation would result [*18] in death or serious physical harm to an employee. A proposed penalty of $650.00 was recommended. The penalty was arrived at by reducing the unadjusted penalty of $1,000 by 20% for prior history, 5% for size and 10% for good faith. Respondent at the time of the hearing, was in the process of installing electronic eye guards on the expander.

RESPONDENT'S WITNESS

Sylvester Zicari, Respondent's production supervisor, identified Respondent's exhibits R-1A through R-1G as photographs of the expander.

Zicari stated that in the normal course of the expander's operation a round cylinder shell rolls along a conveyer belt to the expander where it hits a trip switch which raises the shell allowing the expander's ram heads to come together inside the shell. After being expanded the shell rolls away. This operation takes from three to five seconds (Exhs. R-1B, R-1D).

The expander is automatic and does not require the services of an operator. There is an operator of another machine about 10 to 15 feet away who has a stop switch to shut off the expander's power, if necessary. During the expander's normal operation, there is neither reason nor work which requires any employee to approach, [*19] or walk to, the expander. There are no direct aisles or pathways to the expander. To reach the expander's danger area, an employee would have to consciously and deliberately climb over various obstructions (Exh. R-1A).

There were two horizontal bars across the top of the expander unit (Exhs. R-1B, R-1D), and two guards on each side of the expander. These guards extended out 2-1/2 feet from each side of the expander, were 9 to 12 inches wide vertically, and were made of 1/4 inch steel plate (Exhs. R-1A, R-1G, guards marked "G"). Leading to the expander and part of the conveyor system were guard rails running parallel with, and a foot away from, the conveyor belt. The top guard rail was 4-1/2 feet from the floor (Exh. R-1A, rail marked by arrow). In addition, there was an emergency stop switch to shut off the expander's power source (Exh. R-1A, switch marked with a circle). The expander did not activate unless the tripping switch was hit.

Maintenance work was performed on the expander about once a week. When maintenance work was performed, Respondent's safety procedures had to be followed. These procedures required that the main power source be turned off, and that [*20] the expander's main power switch be "locked out" by placing a lock on the switch. The maintenance employee who "locked out" carried the only key for the lock. This procedure was not followed at the time of the accident.

Respondent has no formal training program for its maintenance personnel. These employees are required to follow Respondent's safety procedures and if they fail to do so can be penalized by dismissal, or loss of several day's work.

Arthur Morecraft, a project engineer for the Bridgewater Engineering Company, stated that he and his company designed and manufactured Respondent's expander. He inspected the expander several times subsequent to its installation. There were adequate safety devices installed on the expander to protect against point of operation hazards during the machine's normal operation. The lead in and end guide stripper plates (marked "G" in Exh. R-1A) would prevent or hinder an employee from entering the danger area. During normal operation, the expander's point of operation was inside a 40 pound steel drum. Usually no other safety devices are installed on a machine of this type.

Normally when maintenance work is performed on the expander, [*21] it is not necessary to remove any of the safety guards unless such removal is required to reach a specific part of the machine.

A maintenance man who fails to follow the "lock out" safety procedure could accidentally activate the ram head section of the expander by hitting the trip switch.

Eugene Grotnes, President of the Atlanta Grotnes Machine Company and Respondent's expert witness, stated that he inspected the expander the day before the hearing and identified Exhs. R-1A through R-1G as photographs of the expander.

It was his opinion that the side rails (Exh. R-1A "arrow mark"), the guides above and below the expander's head (Exh. R-1A, marked "G") and the horizontal bars (Exhs. R-1D, R-1G), served as barrier guards and were adequate safety devices.

In performing maintenance work on the machine, it is normal for maintenance employees to remove or circumvent safety devices. In the industry generally, when maintenance work is performed on a machine, the "lock out" safety procedure is followed.

There are machine guards which make it impossible for an employee to enter a point of operation but Grotnes has not seen such guards on expanders. Further, such devices can [*22] be removed or circumvented during maintenance work, and any employee, if he wanted to, could enter the point of operation area of a machine.

OPINION

Respondent contested the citation for a serious violation of 29 C.F.R. 1910.212(a)(1). The description of the violation in the Citations states:

55 Gal. Drum Assembly Line #1 -- Drum Hoop Expander --

For failure to provide one or more methods of machine guarding, such as electronic safety devices or interlocked barrier guards to protect employees from hazards such as those created by point of operation.

Standard 29 C.F.R. 1910.212(1)(i) as promulgated states:

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 points of operation, ingoing nip joints, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

The alleged hazard created by Respondent's drum hoop expander was at the point of operation. 29 C.F.R. 1910.212(a)(3)(i) [*23] defines point of operation as "the area on a machine where work is actually performed upon the material being processed." On Respondent's expander this was the area where the ram heads closed inside a drum shell.

29 C.F.R. 1910.212(a)(3)(ii) states that

[t]he 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 therefore, or, in the absence of applicable 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.

There are no applicable specific standards for guarding the point of operation of Respondent's hydraulically expander.

By definition (29 C.F.R. 1910.213(a)(3)(ii), an employer must guard the point of operation of a machine whose operation exposes an employee to injury. If no specific guarding standards are applicable, an employer is permitted to design and construct a machine guard which prevents the operator of a machine from having any part of his body in the danger area during the operating cycle.

Guarding devices are necessary during a machine's normal operating [*24] cycle to protect the operator or other employees in the area. Since there was no operator for the expander, it follows from 29 C.F.R. 1910.212(a)(3)(ii) that machine guarding was not necessary. If other employees in the area are considered, evidence of which was submarginal, 29 C.F.R. 1910.212(a)(3)(ii) permits the employer where no specific standards are applicable to design and construct guarding devices.

Standard 29 C.F.R. 1910.212(a)(1) is sufficiently general and vague to allow an employer to utilize "location" guarding in the design and construction of the expander. Complainant's proposed amendment to 1910.212(a)(1) includes "location" guarding as an acceptable method or type of guarding (38 F.R. 1240, May 11, 1973). Although no definition of machine guarding by "location" is given in the proposed amendment, sufficient insight into its meaning may be found in 29 C.F.R. 1910.216 which deals with specific standards applicable to Mills and Calenders in the rubber and plastic industries. Subsection (d)(1) of 1910.216 states:

Protection by location -- (1) Mills -- where a mill is so installed that persons cannot normally reach through, over, under, or around [*25] to come into contact with the roll bite or be caught between a roll and an adjacent object, then, provided such elements are made a fixed part of a mill, safety devices listed in paragraph (b) of this section shall not apply. (Emphasis supplied)

To the same effect is 1910.216(d)(2).

The evidence established that Respondent's expander was designed and constructed with elements which acted as barrier guards and prevented an employee in the area, from normally reaching through, over, under, or around the expander to come into contact with the point of operation. The evidence also established that during the normal operating cycle of the expander, the point of operation was inside a 55-gallon drum shell.

It was conceded that if an employee was to approach the danger area of the expander, he would have to make a conscious and deliberate effort to climb over, or between the barrier guards, to the point of operation.

This Judge finds that the elements or parts designed and constructed for the expander acted as barrier guards to protect any employee in the area during the expander's normal operation from accidently, inadvertently or negligently, entering the point of operation. [*26] The evidence of record also indicates that Respondent is presently installing an electronic safety device on the expander.

MAINTENANCE EMPLOYEES

Machine guarding is required to prevent exposure of an operator or other employees in the machine's area from point of operation hazards during the normal operation of a machine.

Maintenance employees fall within a unique category. Their work separates them from operators or other employees working or walking in a machine's area. The very nature of maintenance work requires maintenance employees to be in the danger area of a machine for repairs, cleaning, adjustments, etc. Machine guards can be, and at times must be, circumvented by maintenance employees in the course of their work.

Although machine guards can offer a measure of protection to maintenance employees, it is this Judge's opinion that Standard 29 C.F.R. 1910.212(a)(1) is primarily designed to protect operators and other employees from the hazards to which they may be exposed during the normal operation of a machine. It is not designed to protect maintenance employees.

In Secretary v. Grayson Lumber Co., Inc., an analagous situation, held that a specific standard (29 C.F.R. 1910.219) which required guarding on exposed transmission apparatus was not violated where the only employees affected were maintenance personnel. To hold otherwise, the Commission stated, would require that maintenance operations could not be performed on the apparatus.

Respondent did not violate 29 C.F.R. 1910.212(a)(1) for the evidence established that only maintenance personnel were actually exposed to a hazard. This does not mean or imply that maintenance employees should not be protected. In the context of this case, it means that 29 C.F.R. 1910.212(a)(1) as promulgated is designed to protect an operator and non-maintenance employees in a machine's area during the noraml operation of a machine.

Specific federal standards are required for the safety of maintenance personnel. Some standards to exist for certain machines (see 29 C.F.R. 1910.26(b)(4)). There are none for this machine. This lack of specific standards to protect maintenance employees does not relieve Respondent of the responsibility for the safety of its maintenance personnel, or absolve Respondent for its failure to maintain a properly supervised [*28] and rigidly enforced safety program for its maintenance employees.

The record establishes that Respondent has a "lock out" safety procedure policy. Such a policy without enforcement is valueless. Respondent delegated to its maintenance crew consisting of a foreman and three employees, the task of working out among themselves safety training and practice sessions. The record implies that the safety program was honored more in its breach than in its observance. Respondent's maintenance foreman, Victor Orzwestki, not only failed to follow the safety procedure for maintenance work but permitted a fellow maintenance worker, Robert Kwiatkowski, to be in the danger area of the expander. The foreman's knowledge of the violation of Respondent's safety procedures was Respondent's knowledge. This knowledge does not constitute a violation of the standard at issue. It does constitute a failure of Respondent's responsibility to provide a safe work place for its maintenance employees under the Act.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes substantial proof of the following specific findings.

1. Respondent, Jersey Steel Drum Manufacturing [*29] Corporation, is a corporation organized under the laws of the State of New Jersey, and maintains an office and plaoo of business at 600 Prospect Avenue, Piscataway, New Jersey.

2. At all times material herein, Respondent was engaged in the manufacture and sald of steel drums.

3. At all times material herein, Respondent purchased parts and raw material from outside the State of New Jersey, and sold steel drums outside the State of New Jersey.

4. Respondent had affected employees at its work site who were not represented by any authorized representative (Answer).

5. At all times material herein, Respondent owned, controlled and operated machine No. 3, a drum hoop expander.

Inspection of Respondent's Worksite

6. On June 6, 1972, as a result of an accident report, Joseph W. Rufolo, a Compliance Officer for the Occupational Safety and Health Administration, inspected Respondent's drum hoop expander (Exh C-1).

7. Officer Rufolo's inspection revealed that the drum hoop expander lacked a point of operation guard.

8. As a result of his inspection, Officer Rufolo recommended that a Citation for a serious violation of 29 C.F.R. 1910.212(a)(1) be issued to Respondent. [*30] He further recommended that a proposed penalty of $650.00 be assessed for the alleged violation.

9. On June 23, 1972, Respondent was issued a Citation for a serious violation of 29 C.F.R. 1910.212(a)(1), and a Notification of Proposed Penalty of $650.00.

Respondent's Drum Hoop Expander

(a) Operation

10. Drum shells made on assembly line No. 1 roll along a conveyer belt to the drum hoop expander. As each drum shell enters the expander's area, it hits a trip switch which automatically raises the shell and causes the two ram head sections of the expander to come together inside the shell (see exhibits C-1, R-1D, 1E, 1F). This operation takes from 3 to 5 seconds to complete.

11. The expander operates hydraulically and automatically. It does not have nor require an operator.

12. During the normal operation of the expander, the point of operation is inside a steel drum shell.

(b) Machine guards

13. There are no applicable specific standards for guarding the point of operation of Respondent's expander.

14. Standard 29 C.F.R. 1910.212(a)(3)(iii) permits an employer when no specific standards exist to design and construct machine guards which prevent an operator from having [*31] any part of his body in the danger zone during the operating cycle.

15. Respondent's expander was designed and constructed with elements or component parts which acted as barrier guards. These guards prevented an employee (other than maintenance personnel), working or walking in the area from normally reaching through, over, under or around the expander to the point of operation (see opinion; see also 1910.212(a)(2)).

(c) Respondent's employees

(1) Operator

16. There was no operator for the expander.

(2) Other employees

17. There was a lack of substantial affirmative evidence to establish that employees other than maintenance personnel were exposed to any hazard from the expander's point of operation (see, Opinion).

(3) Maintenance employees

18. Standard 29 C.F.R. 1910.212(a)(1) is interpreted as a protection for operators and non-maintenance employees from machine hazards during the normal operating cycle of a machine (see, Opinion).

19. Maintenance work requires maintenance employees to be in close contact or proximity with the danger areas of a machine (see, Opinion).

20. Machine guards can be, and at times, must be circumvented or removed to perform [*32] maintenance work.

21. Machine guards to protect maintenance employees would seriously curtail or prevent maintenance work on a machine (see, Opinion).

22. Respondent's maintenance employees were the only employees actually exposed to any danger from the expander's point of operation (see, Opinion).

23. Respondent lacks a proper and knowledgeable supervised training and safety program for its maintenance employees (see, Opinion).

24. Respondnet's expander during its normal operation, was sufficiently guarded under the requirements of 29 C.F.R. 1910.212(a)(1) (see, Opinion).

CONCLUSIONS OF LAW

1. The Respondent is, and at all times relevant herein was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter of, and parties to, this action.

3. Respondent was not in violation of 29 C.F.R. 1910.212(a)(1) on June 1, 1972.

ORDER

Due deliberation having been had on the whole record, it is hereby ORDERED that the Complaint is dismissed; it is further ORDERED that the Citation for a serious violation [*33] issued June 23, 1972, by the Complainant against Respondent is vacated; it is further

ORDERED that the Notification of Proposed Penalty of $650.00, issued on June 23, 1972, is vacated.