HURON CULVERT AND TANK COMPANY

OSHRC Docket No. 13692

Occupational Safety and Health Review Commission

January 5, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Regional Solicitor

Keith B. Anderson, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision.    [*2]   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Subitem d of item 15 of the citation should be vacated because the complainant has failed to prove, as required by the cited standard, 29 C.F.R. §   1910.212(a)(3)(ii), that there was an appropriate standard prescribing a particular guarding device or that one could be designed and constructed to provide respondent's rivet and punch machines with the protection required by that standard.   Secretary v. K & T Steel Corporation, OSAHRC Docket No. 5769, February 24, 1976, (dissenting opinion).   Subitem f of item 15 should also be vacated because the evidence is insufficient to establish that the standards codified at 29 C.F.R. §   1910.212, rather than those codified at 29 C.F.R. §   1910.217, applied to respondent's shear. See Western Steel Manufacturing Company, OSAHRC Docket No. 3528, April 5, 1976, (dissenting opinion), and the Judge's decision attached as an appendix thereto.   Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046,   [*3]   December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Carlson's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Donald R. McCoy, for the Complainant

Keith B. Anderson, for the Respondent

Carlson, Judge, OSAHRC: This is a proceeding brought 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".   By citation issued May 22, 1975, the complainant Secretary of Labor alleged that as a result of an inspection made on May 6, 1975, respondent was determined to have violated Section 5(a)(2) of the Act through noncompliance with several general industry standards published in 29 CFR Part 1910.   The citation alleged 17 items of nonserious violation in all.   No item involved a proposed penalty except item 15, for which $135 was asked.   Calculation of that amount, however, had involved a mathematical error; by unopposed amendment [*4]   made at trial the amount was reduced to $85 (Tr. 5).   Respondent originally contested items 12 and 13 and subitems (d) and (f) of item 15.   By its answer however, respondent narrowed the contest to subitems (d) and (f) of item 15.

The subitems in ultimate contest both involved alleged violation of 29 CFR 1910.212(a)(3)(ii). n1 The cited standard reads in pertinent part as follows:

§   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 operating of machines whose operation exposes as employee to injury, shall be guarded.   The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable [*5]   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.

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n1 The citation identified the standard as 1910.212(a)(3)(iii).   This typographical error was corrected by amendment contained in the complaint.

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The alleged violations were described in the citation as follows:

Point of operation guards on the following pieces of machinery were not provided:

* * *

d.   The two Stamco Rivet and Punch machines in the culvert shop;

* * *

f.   The Cincinnati shear in the tank shop.

Jurisdiction of the Commission was conceded in respondent's answer.   Hearing was held at Aberdeen, South Dakota on October 1, 1975.   No affected employees or their representatives sought party status.   Complainant filed a brief and supplemental brief.   Respondent elected not to file post-hearing submissions.

I

Respondent corporation fabricates metal tanks and culverts in its small manufacturing plant in Huron, South Dakota.   A compliance officer [*6]   employed by complainant inspected the plant on May 6, 1975.   Among the various machines which were inspected were two Stamco rivet and punch machines which were located in the culvert shop. These machines perform the double function of punching rivet holes and fastening the rivets. They are used at respondent's facility to assemble corrugated metal culverts from two foot sections.   Diameters of the 2 foot sections may vary from 8 inches to 8 feet; and assembled culverts can be as long as 40 feet.

One of the machines (the two were substantially identical) is well depicted by the photographs in evidence as complainant's exhibits 1, 2 and 3.   A cyclindrical metal arm projects from the face of the machines. Above the arm is the punch and immediately adjacent to that is a rivet fastener or hammer. Culvert sections are guided over the extended arm by the two men who operate the machine, and are positioned below the punch and hammer. The men stand facing each other with the point(s) of operation and the suspended culvert material between them.   As the men perform the operation they stand with one foot on a wooden platform paralleling the culvert section while the other foot is ordinarily [*7]   advanced toward the machine and placed on an I-beam (see photographs).   Trip levers operating a clutch mechanism selectively activate either the punch or rivet hammer. The levers are at or slightly above head level on one side of the machine. The first operation on each section of culvert inserted is the fastening of a single rivet. First a hole is made with the punch; then the man on the side opposite the controls (the helper) reaches in and inserts the rivet. Next the worker operating the machine (the operator) trips the rivet hammer which forcefully descends and secures the rivet. The compliance officer, from his observation of the operation of one of the machines, believed that subsequent rivetings were performed in the same way (Tr. 78).   Respondent's manager insisted that this is not so.   He testified that after the initial fastening is made, in the manner above described, the section is rotated by the men and punched at approximately 5 inch intervals all the way around its circumference.   Then, according to the manager, the helper inserts 2 or 3 rivets "to get away" and the section is again rotated all the way around to fasten it to the adjoining section with the helper [*8]   feeding rivets "3, 4 holes ahead" of the hammer (Tr. 120-121, 145-148).   The manager's version of the operation was believable and mus be accepted as accurate because of his greater familiarity with the procedure.

Nevertheless it was undisputed that at least once on each assembly operation the helper did insert his hand directly under the path of descent of the rivet hammer and the nearby punch (Tr. 119).   It is also clear from the evidence that no barriers or guarding mechanisms of any description were present.   Had the operator for any reason - such as an attempt to steady himself if a foot slipped, or a misperception of the helper's hand position - tripped the lever as a rivet was being placed or repositioned, injury would have been virtually certain.   Since the machines were operated from 4 to 6 hours per day (Tr. 35) the procedure which required the helper's hand to enter the danger zone was necessarily repeated many times.

Essentially, respondent contends that to provide any sort of effective guarding would be physically impossible or woud at least so hamper production as to render continued culvert fabrication economically impossible.   Complainant's compliance officer acknowledged [*9]   that physical barrier guards would be of dubious utility on the machine. He maintained, however, that the requirements of the cited standard could be satisfied by providing a dual interlocking electronic trip control, which would prevent operation of the machine without each man having a hand on an activating switch or lever. n2 Use of such mechanism would keep the helper's rivet-placing hand out of the danger zone during the operating cycle.   (The other hand was concededly out of the way since it was agreed that each man kept one hand on the side of the culvert to either turn or steady it.)

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n2 He also indicated that a "picture frame" type of electronic guard (which would lock out controls whenever a hand was in the danger zone) could be used, but felt it would be less easily installed than a dual control (Tr. 32).

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As the hearing progressed it became clear that respondent's contention as to the impossibility of guarding was actually addressed to barrier arrangements, and it was eventually conceded that the interlocking [*10]   dual controls suggested by the compliance officer could be physically installed (Tr. 124, 168-169).   The plant manager "estimated", however, that use of such a device would cut production by half (Tr. 124); that the machine operations would find a way to short circuit it; and that its use would in fact increase rather than reduce hazards. Respondent further generally contends that complainant bears the burden of proving the "feasibility" of specific abatement methods.

None of these related contentions can succeed as a defense.   The extent of complainant's burden is the demonstration of the existence of the hazard envisioned by the standard.   The respondent at that point must show that no practical means of guarding exists. n3 As to a slowing of production resulting from a use of interlocking control mechanism, it is not doubted that the time consumed by the helper in pressing a release lever or button would reduce the speed with which the riveting operation could be performed.   But the otherwise unsupported declaration as to a halving of production is not consonant with the detailed description of the machines' ordinary operation.   Moreover, production inconvenience occasioned by [*11]   use of point of operation guards in a work process does not constitute a defense against violation.   Secretary v. K & T Steel Corp., Docket No. 5769 (February 24, 1976); Secretary v. Garrison and Associates, Inc., 17 OSAHRC 188 (April 22, 1975); Secretary v. Clark Equipment Co., Docket No. 7925 (December 22, 1975). n4

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n3 Secretary v. Central Steel & Tank Co., Docket No. 2346 (November 25, 1975).

n4 National Realty and Construction Company, Inc. v. OSAHRC 489 F.2d 1257 (1973) and Industrial Union Department, AFL-CIO v. Hodgson 499 F.2d 467 (1974), those cases dealing with "feasibility" which respondent cited in angument, have no application here.   The first pertains to "general duty" violations under Section 5(a)(1) of the Act where different principles apply; the second deals exclusively with considerations which govern the Secretary of Labor's obligations in rule making proceedings under the Act.

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The speculative assertion that workers would devise ways to circumvent the safety devices can [*12]   be given no weight.   Responsibility for implementation of safety requirements under the Act or regulations promulgated thereunder rests with the employer.

Finally, the contention that the use of a dual interlocking trip device would increase the hazards of operation is totally without evidentiary support in the record.   It must consequently be held that respondent was in violation of the standard through its operation on the punch and rivet machines.

II

The citation at item 15 subitem (f) alleged lack of guarding on a Cincinnati shear machine within the tank shop of respondent's establishment, in violation of 29 CFR 1910.212(a)(3)(ii).   The evidence disclosed that most of the lengthy blade on the machine was shielded by a "rake" type metal barrier which had been supplied by the manufacturer. A 32 inch section at one end of the machine, however, had been removed by respondent to permit custom shearing of angle iron and cutting of certain small strips (Tr. 87, 106, 135-136).   The guard on a hold-down device had also been removed on the same part of the machine. The evidence additionally showed that parts of the operator's hands were necessarily quite close to the blade area in   [*13]   order to hold materials during cutting (Tr. 103, 106-107).   Respondent did not generally dispute this, but asserted that when the angle iron was cut the operator's hands remained behind the vertical portion of the material as it lay upon the shear bed; and that adequate protection was thus provided by the material itself.   By the time of the hearing the missing guard had been replaced by respondent.

I must conclude that the use of the machine without any guard was proved and that such use constituted a violation of the cited portion of the standard.   The shear came from the manufacturer equipped with a guard (Tr. 46) and the removal of that guard for close-in work may rightly be deemed a prima facie violation - or, as complainant's counsel observed, simply a misuse of the equipment.   Flat or sheet stock was sometimes cut to close tolerances on the unguarded part of the shear; and it is not plausible that an operator's hands would invariably remain behind the upright part of angle iron when that type of material was being positioned and trimmed lengthwise.

What has been said up to this point applies only to the matter of the absence of a guard. At various times in the case [*14]   complainant's compliance officer appeared to be maintaining that the standard was further violated because the existing guard - which was adjustable - was adjusted at too high a level (3/4 inch) for the sheet stock being cut (Tr. 45, 104).   The compliance officer testified the guard in place at the time of inspection needed to be moved down a distance of 1/4 inch to a 1/2 inch clearance because the thickness of the stock "usually" cut (Tr. 43) was 1/4 inch. n5 At the same time it was asserted that if the manufacturer's guard were present all the way across the machine it would be "adequately guarded" (Tr. 45).   Complainant's position on this point still appeared unclear at the close of the hearing, thus prompting the following colloquy between judge and complainant's counsel:

THE COURT: There is one area where I have got to say I am still a little confused and perhaps as I read the transcript that confusion will disappear, but in case it doesn't, I would like to know the Government's ultimate position on what the crux of the violations were with respect to the shearing machine.

MR. MC COY: Your Honor, simply failure to have guards anyplace on that half or the third or so of the   [*15]   blade at the time of the inspection and prior to that in operating it that way.   (Tr. 166-167.)

By his brief however, complainant again appears to be saying that where the guard was present on the machine it was too high.   The matter will not be further belabored here.   Complainant's seeming assurances early on in the trial were presumptively enough to have convinced respondent that it need not present all the evidence it may have possessed concerning the height at which the guard was set.   Under such circumstance I must hold that no violation can be found with respect to the height of that part of the guard which was in place at the time of inspection.

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n5 Respondent's manager pointed out that the nominal 1/4 inch stock was actually thicker owing to the common presence of warp.

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A further matter deserves mention.   The entire case was heard upon the theory that 29 CFR 1910.212(a)(3)(ii) had application to respondent's shearing machine. No one at any time suggested otherwise Subsection 1910.212(a)(3)(iv) lists "Shears"   [*16]   as among those machines "which usually require point of operation guarding." It is noted, however, that mechanically powered shears (there is no evidence in the present case as to whether respondent's two machines were mechanical, pneumatic, or hydraulic) are apparently more specifically covered in 1910.217 as a form of mechanical power press. This is so because 1910.211, which contains definitions for the whole of Subpart 0, relating to machine guarding, defines "presses" at 1910.211(d)(48) to include machines which shear or cut.   (Subsection 1910.211(d) contains those definitions which apply specifically to the power press provisions of 1910.217.)

The present case will nevertheless be left in its existing posture for several reasons.   First, since the cited standard does apply generally to machine guarding, and since respondent raised no question as to its applicability as against other perhaps more specific standards, any raising of the matter sua sponte would be of questionable propriety under the principles laid down in such cases as Secretary v. Consolidated Pine, Inc., 17 OSAHRC 591 (1975) and Secretary v. D. Federico, Inc., Docket No. 4395 (February 10, 1976).   [*17]   Second, since the 1910.212 is of general application and the power press provisions of 1910.217 do not apply to all presses - including any which may be hydraulically or pneumatically operated (see 1910.217(a)(5)) - it is reasonable to conclude that the employer should bear the burden of showing that his machine falls within a specific category which takes it outside the direct coverage of general provision.   Third, under the facts adduced in this case, the outcome could scarcely differ irrespective of the standard charged.   The shear was not guarded at one end.   Subsection 1910.217 appears somewhat more demanding, explicit, and rigid in its guarding requirements than 1910.212; and it contains no provisions which could conceivably prove exculpatory under this record.   Were 1910.217 deemed specifically applicable, the record here would virtually demand an amendment of the pleadings to conform to the evidence under provisions of Rule 15(b) of the Federal Rules of Civil Procedure.   The result for respondent would remain the same.

III

We now turn to penalty assessment.   The matter presents something of an anomaly since only subitems (d) and (f) of item 15 were the ultimate subjects [*18]   of contest, whereas the amended proposed penalty of $85 applies to all 6 subitems and all 7 machines included in item 15.   Evidence was not presented which would shed light on the particulars of those 4 subitems as to which violation was confessed.   Under such circumstances the entirety of item 15 must be regarded as having remained in contest with respect to proposed penalty. Otherwise some wholly arbitrary method of penalty allocation would be required.

Ordinarily the violations proved in this case would warrant at least some monetary penalty.   There are, however, mitigating factors.   Respondent is of relatively small size and was not charged with any adverse prior history of violation under the Act.   Its good faith is shown, among other things, by its prompt and vigorous abatement effort as to all violations not contested (Tr. 134).   The complainant's own proposed penalty assessment would yield only some $12 for each of the 7 machines specified in all of item 15.   Considering the enforcement agency's own nominal proposals, together with the earlier mentioned allocation difficulties, it is my view that the aims of the Act will be adequately served in this case if no penalty is [*19]   assessed for any part of item 15 of the citation.

FINDINGS OF FACT

Upon the entire record herein, and consistent with the foregoing discussion, the following findings of fact are made:

1.   Respondent corporation operates a small metal culvert and tank manufacturing enterprise in Huron, South Dakota.   It has employees and its business affects commerce.

2.   On May 6, 1975, when respondent's plant was inspected by an agent of complainant Secretary of Labor, two essentially identical Stamco rivet-punch machines lacked any guarding devices and thus exposed one of the employees operating such machines to injury in that a rivet insertion operation necessary in culvert assembly required his hand to enter the point of operation danger zone.

3.   On the same inspection date a shear machine used in respondent's plant lacked a barrier guard and hold-down guard across a part of the exposed part of the blade. Absence of such guards exposed employees' conducting certain cutting operations on the unguarded part of the machine to a risk of injury.

CONCLUSIONS OF LAW

It is concluded:

1.   That the Commission has jurisdiction of this cause.

2.   That respondent on May 6, 1975 was in violation [*20]   of Section 5(a)(2) of the Act through noncompliance with 29 CFR 1910.212(a)(3)(ii) as alleged in subitems (d) and (f) of item 15 of the amended citation herein.

3.   That respondent was likewise in violation of 29 CFR 1910.179(j)(2)(iv) and 1910.179(m)(1) as alleged in items 12 and 13 respectively.

4.   That the matter of the appropriateness of the amended proposed penalty of $85 herein must be considered to be in issue as to all 6 subitems of item 15 of the citation; and that upon the whole record no monetary penalty is warranted for such item.

ORDER

In accordance with the foregoing it is hereby ORDERED that the citation, as contested and as ultimately amended by the complaint, is hereby affirmed, but that the notification of proposed penalty, as amended, is vacated and no penalties are assessed in this cause.

John A. Carlson, Judge, OSAHRC

Dated: April 13, 1976

Denver, Colorado