A.E. BURGESS LEATHER CO., INC.

OSHRC Docket No. 12501

Occupational Safety and Health Review Commission

February 24, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Charles B. Swartwood, III, for the employer

OPINION:

DECISION

BARNAKO, Chairman:

A decision of Review Commission Judge Ben D. Worcester, dated September 8, 1975, is before this commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the "Act"). Review was directed on whether the Administrative Law Judge erred in vacating the citation alleging a nonserious violation of the Act for failure to comply with the standard at 29 CFR 1910.212(a)(1). n1 We have considered the entire record. For the reasons which follow, we reverse the Judge's decision.

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n1 The standard provides:

(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 are - barrier guards, two-hand gripping devices, electronic safety devices, etc.

[*2]

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The facts are these: Respondent, a manufacturer of specialty leather products in Grafton, Massachusetts, uses four beam dinker machines to punch out small washers from pieces of scrap leather. The machines have a capacity to make between 2500 and 3500 punching operations per hour. In each machine, a piece of leather is placed on a stationary table. The operator holds a die above the leather, and causes the head of the machine to descend by activating a foot pedal. The head presses against the die, which in turn cuts the desired shape out of the leather. During this process, one of the operator's hands is employed in holding the die while the other hand may or may not be used to hold the piece of leather. It is undisputed that means are not used to prevent the operator's hands from either being between the head and the die, or between the die and the leather, during operation of the machine. The record shows that, in the past fifteen years, one injury had resulted. An operator sustained a gashed finger when it was caught between the die and the table. The injury did not result in time lost from [*3] work.

Complainant's witness suggested that guarding could be accomplished by having the die held by means other than the employee's hand, and operating the machine with a two-hand control device. Because of the necessity to frequently change dies, he suggested that the die could be attached to a flexible arm which would hold it upright, but facilitate interchange of dies. Respondent's expert also suggested several ways in which at least partial guarding could be accomplished. For example, a collar could be placed on top of the die to prevent an operator's hand from getting between the head and the die.

Judge Worcester vacated the citation on the ground that Complainant had failed to sustain his burden of proof. The Judge held that Complainant had both failed to prove that the machine exposed the operator to a hazard, and failed to prove that any hazard which did exist was preventable. In holding that Complainant had failed to prove a hazard, the Judge found that any hazard shown was only "theoretical," as there was no record of lost time injuries in the many years in which the machines had been in operation. We conclude that the Judge erred in both grounds for his disposition. [*4]

In order to establish a violation of 1910.212(a)(1), Complainant must prove the existence of a hazard. Collator Corp., Docket No. 2004, BNA 3 OSHC 2041, CCH OSHD para. 20,446 (Feb. 25, 1976). The occurrence or absence of injuries caused by a machine is probative evidence of whether the machine presents a hazard. If, however, the objective facts concerning the operation of the machine show the presence of a hazard, then the existence of the hazard is not negated by a favorable safety record which an individual employer may have experienced. Signode Corp., Docket No. 3527, BNA 4 OSHC 1078, CCH OSHD para. 20,575 (April 1, 1976), pet. for review filed, No. 76-1456 (7th Cir., May 14, 1976). "One purpose of the Act is to prevent the first accident." Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975).

In the instant case, the record shows that, as a beam dinker is operated, it is possible for the operator to get part of a hand between the head and the die, or between the die and the table. As sufficient force is exerted on the die to cause leather to be punched, there is clearly sufficient force to cause injury to the operator. Accordingly, [*5] there was a hazard within the meaning of the standard. See B.C. Crocker Cedar Products, Docket No. 4387, BNA 4 OSHC 1775, CCH OSHD para. 21,179 (Oct. 13, 1976). The Judge erred in holding otherwise.

The Judge also erred in placing the burden on the Secretary to prove that the hazard was preventable. The Secretary need only prove noncompliance with a standard to establish a prima facie case. Respondent may then defend by showing that compliance was impossible. Buckeye Industries, Inc., Docket No. 8454, BNA 3 OSHC 1837, CCH OSHD para. 20,239 (1975). Respondent has not, however, established that defense in this case. Indeed, the testimony of Respondent's own witness showed that some protection against the hazard could be provided. Furthermore, Respondent did not rebut the suggestion of Complainant's witness that the use of a flexible arm could eliminate the necessity for the operator to hold the die during the punching operation. n2

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n2 On review, Respondent makes the broad argument that compliance will force it to stop using beam dinkers. The facts are clearly to the contrary. Respondent also argues that compliance by it will operate to its disadvantage since other employers will not have to comply. The argument assumes that respondent must comply because it was cited whereas other employers using these machines can avoid compliance because they have not been cited. The assumption is false. Compliance is expected regardless of whether a citation issues.

[*6]

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In assessing a penalty, we must consider the gravity of the violation, along with Respondent's size, good faith, and prior history of violations. The gravity is low because of the low probability of injury. Respondent is a small company, with no prior history of violations. The record also shows that Respondent has acted in good faith. We therefore do not assess a penalty.

Accordingly, the citation for violation of 29 C.F.R. 1910.212(a)(1) is affirmed. No penalty is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Worcester correctly concluded in his decision, which is attached hereto as Appendix A, that complainant had failed to establish that respondent's machines constituted a hazard. Therefore, his decision should be affirmed.

The Judge found that the likelihood of injury was remote and that only a theoretical hazard was shown. That finding is fully supported by the record which shows only one minor injury, not resulting in lost time, that was caused by the machines during the past 15 years. A remote possibility of injury is too speculative a basis for finding the existence of [*7] a hazard. See Secretary v. Signode Corporation, OSAHRC Docket No. 3527, April 1, 1976 (dissenting opinion).