"AH" METAL FABRICATIONS, INC.

OSHRC Docket No. 15206

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

Leslie Ames, "AH" Metal Fabricators, Inc., 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 [*2] an unreviewed Judge's decision. 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.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Robert A. Fitz, for the Complainant

Leslie D. Ames, for the Respondent

STATEMENT OF THE CASE

BLYTHE, Judge:

This is a proceeding brought pursuant to 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), contesting a citation issued by the complainant, the Secretary of Labor (the Secretary), against the respondent, "AH" Metal Fabricators, Inc., under the authority vested in the Secretary by 9(a) of the Act. As the result of an inspection made on August 14 and September 3, 1975, by complainant's compliance officer of respondent's workplace [*3] located at 2400 South Broadway, Moore, Oklahoma, two citations were issued to respondent on September 16, 1975, alleging that respondent violated 5(a)(2) of the Act by failing to comply with various standards promulgated by the Secretary under the Act, together with a notice of proposed penalties. In its notice of contest, dated September 30, 1975, respondent contested only item 1A(b) and (c) of citation 2, pertaining to the notching and punching operations of a Mubea Ironworker, n1 for which respondent was alleged to have failed to provide point of operation guards or devices contrary to 29 CFR 1910.217(c)(1)(i). n2 A similar violation was alleged in item 1A(a) with respect to a Bliss mechanical power press, and the combined violation was classified as serious by complainant, who proposed a civil penalty of $550 therefor.

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n1 Item 1A of citation 2 alleges: "The employer did not provide and insure the usage of point of operation guards or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press; i.e., (a) the Bliss # 164 mechanical power press located near the southwest corner of the shop, in the main building; (b) the notcher; (c) the hole puncher on the Nubea [sic] Ironworker mechanical power press located near the center on the east side of the shop in the main building."

n2 At the close of the hearing the complainant moved, without objection, to amend the complaint to allege in the alternative that respondent violated 29 CFR 1910.212(a)(3)(ii). This motion was granted.

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The complaint, issued by complainant on October 17, 1975, contained allegations regarding both the Mubea and the Bliss machines. Respondent failed to answer the complaint, and, on November 6, 1975, complainant served a motion to affirm the citation and proposed penalty under Rules 4 and 33(b) of the Commission's Rules of Procedure. This motion was granted by the Commission on December 4, 1975. Thereafter the respondent requested reinstatement of his notice of contest, and this request, along with the remainder of the case, was assigned to the undersigned on April 6, 1976.

On May 5, 1976, complainant moved to file an amended complaint, which inter alia, eliminated allegations regarding the Bliss mechanical power press. At the hearing, which was convened in Oklahoma City, Oklahoma, on May 14, 1976, complainant did not oppose the request for reinstatement and respondent did not oppose the motion for leave to file the amended complaint, so both were granted. n3

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n3 It would appear that the filing of the amended complaint waived the timely filing of an answer to the original complaint. Respondent answered the amended complaint orally at the hearing.

[*5]

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The complainant has declined to submit a post-hearing brief, and respondent has failed to do so within the time allowed. The matter is now ripe for decision. No affected employee or representative of affected employees has taken part in this proceeding.

JURISDICTION AND ISSUES

Respondent at the hearing admitted the jurisdictional allegations of the amended complaint and stipulated to facts establishing jurisdiction. The issues remaining for decision are whether respondent was in serious violation of 29 CFR 1910.217(c)(1)(i) or 29 CFR 1910.212(a)(3)(ii) by failing to provide point of operation guards or devices for its Mubea Ironworker, and, if so, the appropriate penalty and abatement date therefor.

DISCUSSION AND OPINION

Respondent concedes that its German made Mubea Ironworker does not have point of operation guards or devices but contends that it is not possible to install such on the hole puncher and infeasible to do so on the notcher since this would slow down its operation. Impossibility of compliance is an affirmative defense, and the burden of proving it is on the respondent under 12(g) [*6] of the Act and F.R. Cir. p. 8(c). Brennan v. OSHRC and Underhill Construction Corp., 513 F.2d 1032 (2d Cir., 1975). Mere interference with production is not a defense. Secretary v. Clark Equipment Co., Docket No. 2925, CCH OSHD P20,238 (1975).

29 CFR 1910.217(c)(1)(i) provides:

"It shall be the responsibility of the employer to provide and insure the usage of 'point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10. n4"

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n4 A table showing the distance that guards must be positioned from the opening, depending on the maximum width of the opening.

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Point of operation "guards" and "devices" are described by 29 CFR 1910.217(c)(2) and (3), but it is unnecessary to go into this since respondent's Mubea Ironworker has no such equipment.

Similar, general requirements for "all machines" are found in 29 CFR 1910.212, subsection (a)(3)(ii) of which provides:

"The point of operation of machines whose operations [*7] 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."

Complainant pleaded a violation of this standard in the alternative, in case the Nubea Ironworker should be held not to be a "mechanical power press" so as to invoke the provisions of 29 CFR 1910.217(c)(1)(i).

An ironworker is a multipurpose machine having several work stations at which operations may be performed by the movement of a ram of slide. The Mubea machine here involved had four work stations, for angle cutting, straight cutting, notching, and hole punching.

29 CFR 1910.217 has been applied to an ironworker in at least two cases: Secretary v. Stevens Equipment Co., 2 OSHRC 1512 (1972), CCH OSHD P15,345 (Stuller, J.), reversed on other grounds, 2 OSHRC 1501 (1973); Secretary v. Isaacson Structural Steel Co., 5 OSHRC 654 (1973), CCH OSHD P16,890 (Donegan, J.). Further, respondent's vice president, Leslie D. Ames, conceded (Tr. 54) that [*8] the Mubea is a power press.

Since 1910.217 is a specific standard for mechanical power presses, the general standard in 1910.212 does not apply to the ironworker here involved. Secretary v. Tennsco Corp., 4 OSHRC 726 (1973), CCH OSHD P16,394 (Risteau, J.); Secretary v. Brown-Jordon Co., 7 OSHRC 25 (1974), CCH OSHD P17,239 (Cronin, J.); Secretary v. Galton Industries, Inc., 19 OSHRC 428 (1975), CCH OSHD P19,784; and Secretary v. General Motors Corp., Docket No. 11,228, CCH OSHD P20,082 (1975) (Goldstein, J.). n5

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n5 But see Secretary v. Osage Company, Inc., 4 OSHRC 886 (1973), CCH OSHD P16,488 (Gold, J.), where 1910.212(a)(3)(ii) was applied to mechanical power presses.

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No citation was issued to respondent for failure to guard the points of operation of the angle and straight cutting workstations, and the compliance officer testified that these stations posed no hazard. However, he testified that the notching and hole punching operations were hazardous because in each instance the operator [*9] held his hands close to point of operation. This testimony was essentially uncontradicted.

Mr. Ames testified that the Mubea was purchased new in January 1974 with the understanding that it met OSHA regulations (Tr. 46); that due to the shapes of the pieces of steel worked at the notching station it is not feasible to operate it with a guard (Tr. 53); that a "stripper" on the punching station acts as a guard ordinarily (but not necessarily) sufficient to keep the operator's fingers out of the way of the punch (Tr. 55, 56); that it would be possible to design a guard for the notcher but that he hadn't figured one out for the punch (Tr. 57); that such a guard would not be dangerous to the operator but would slow him up (Tr. 58); that he had made inquiry of the Mubea distributor regarding the availability of a guard retrofit kit for this machine but had received no reply (Tr. 59); and that respondent had not applied for a variance under 6(d) of the Act (Tr. 57).

Respondent is engaged mostly in "one of a kind" fabrications of stairways, platforms, guardrails and similar items for oil refineries, petrochemical plants, and power plants (Tr. 61). This requires cutting, notching and [*10] punching pieces of angle iron which are manually held in place by the operator. The holes to be punched are previously marked so the operator can see where to hold the iron under the punch, and Mr. Ames was of the opinion that a guard would interfere with his seeing where to punch the hole (Tr. 60). He was further of the opinion that a guard made of transparent material would not solve the visibility problem very long because it would get scratched or covered with dust (Tr. 64).

On the other hand, the compliance officer testified that respondent probably could fabricate its own guards out of expanded metal (Tr. 43); that translucent material could be used for the guards so long as it was shatter proof (Tr. 43); that the notching operation had a 1 1/4" opening and the punching operation a 7/8" opening when he was there, posing a hazard that the operator would get his fingers into the machine (Tr. 38); that the "stripper" would not keep an operator from getting his fingers under the hole punch (Tr. 33); and that guards were feasible for both stations (Tr. 33, 38).

It is clear from a consideration of all the testimony that this is not a case of impossibility of guarding the machine. [*11] While point of operation guards or devices might slow down the operation, they would not make it more hazardous to the operator. Respondent really has not explored the various alternatives open to it. It has not experimented with guards or devices of its own manufacture n6 and has only belatedly made inquiry regarding what the manufacturer of the Mubea machine might be able to supply. Further, it has not applied for a variance. It definitely is in violation of 29 CFR 1910.217(c)(1)(i).

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n6 cf. Secretary v. Lenscraft Optical Corp., Docket No. 6628, CCH OSHD P19,648 (1975) (O'Connell, J.).

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Whether this violation can be classified as "serious" under 17(h) of the Act depends on whether "death or serious physical harm" could result from a condition of which the employer had knowledge (or should have had, with reasonable diligence). There is no question of knowledge here, so the matter turns on whether loss of a finger or part of a hand can be considered "serious physical harm." Complainant's Field Operation [*12] Manual, Ch. VIII (B)(2)(a)(i), so classifies such an injury. So does Secretary v. Midwest Die Casting Co., 4 OSHRC 695 (1973) (Rubin, J.).

"A serious violation is established if there is a possibility of an accident which, if it occurs, creates a substantial probability that death or serious injury will result [citations omitted]."

Secretary v. McDevitt & Street Co., 8 OSHRC 8 (1974). These criteria are met in this case.

Incidentally, respondent offered in evidence as Exhibit R-3 American National Standards Institure (ANSI) standard B 11.5-1975, Safety Requirements for Construction, Care, and Use of Iron Workers. This exhibit was rejected because it has not been adopted as an OSHA standard. However, it is noted that 5 of ANSI B 11.5-1975 requires some form of point of operation protection for every operating station. In the case of the punching station, 5.2 requires either a guard, device, awareness barrier or adjustable restricter. For the notching station, 5.5 requires a guard, the explanation being, "It is practical to equip the notching-coping station with a guard rather than any other means of safeguarding due to the relatively limited types of work pieces [*13] sheared this work station."

Thus according to respondent's own proposed exhibit it should have had a point of operation guard for the notching station and one of four protective items for the hole puncher. It provided none of these.

The penalty question is somewhat complicated by the fact that a single penalty was proposed for item 1A, only a portion of which was contested. It is the complainant's position, as set forth in its amended complaint, that item 1A(a) of citation 2, pertaining to the Bliss machine, has become a final order of the Commission under 10(a) of the Act, and that this includes the proposed penalty therefor. However, this item may not be so subdivided. The offense alleged is violation of 29 CFR 1910.217(c)(1)(i), and the citation lists three instances thereof involving two machines. Respondent, by failing to contest the portion pertaining to the Bliss machine, admitted this violation, making it unnecessary for complainant to adduce proof thereof, but this is not the same thing as saying that item 1 A(a), including the proposed penalty, became a final order of the Commission. In addition to fractionalizing the single offense alleged, this would have the [*14] result of allowing the complainant to make his own determination as to how much of the proposed penalty should be allocated to item 1 A(a). In fact, there would be nothing to keep him from allocating the entire proposed penalty to item 1 A(a), or claiming the difference between the penalty assessed by the Commission for the remainder of the item and the total proposed penalty. In either event, the result would be that at least the proposed penalty, and perhaps more, ultimately would have to be paid by respondent.

It is true that no evidence was adduced at the hearing pertaining to the failure to guard the point of operation on the Bliss machine. However, it seems fair to assume that this portion of the violation was similar to that on the Mubea machine. Three of the four statutory criteria n7 (the employer's size, good faith, and history of previous violations) would be the same. Only the gravity of the violation might vary, and this would not vary substantially.

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n7 17(j) of the Act.

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Respondent has about 30 [*15] employees and grossed $790,000 last year; it is thus a small employer. Its good faith is not questioned, and it has no history of previous violations. Under the circumstances, a penalty of $300 for the entire item 1 A appears appropriate.

For a case involving a similar penalty problem, and arriving at the same solution, see Secretary v. Idaho Cedar Sales Co., 7 OSHRC 584 (1974) (Mitchell, J.).

The abatement date proposed by complainant was November 3, 1975, or 49 days after issuance of the citation and proposed penalty. This abatement date has, of course, been tolled during the pendency of this proceeding. In view of the evidence that respondent itself could manufacture the required point of operation guards or devices if they are not commercially available, this abatement period appears reasonable.

FINDINGS OF FACT

1. The respondent, "AH" Metal Fabricators, Inc., is a corporation with a place of business at Moore, Oklahoma, which is engaged in the business of custom fabrication of metals, utilizing machines and materials manufactured outside the state of Oklahoma. It admits that it is an employer engaged in a business affecting commerce and that it has employees within [*16] the meaning of the Act.

2. On August 14 and September 3, 1975, a duly authorized compliance officer of the Occupational Safety and Health Administration conducted an inspection of a workplace operated and controlled by respondent at 2400 South Broadway, Moore, Oklahoma.

3. At said time and place, respondent operated a Mubea Ironworker, a mechanical power press having four work stations for cutting and punching metal. The notching and hole punching stations of said machine were not equipped with point of operation guards or point of operation devices, and they presented a hazard that the operator's fingers or other parts of his hands might be amputated or otherwise injured thereby. At least two employees were exposed to each of said hazards.

4. Respondent knew or in the exercise of reasonable diligence should have known of the existence of said hazards.

5. The installation and use of such guards or devices was feasible, and such guards or devices could have been manufactured by respondent if they were not available from the manufacturer of the machine or other sources.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this [*17] proceeding.

2. On August 14 and September 3, 1975, respondent was in serious violation of 29 CFR 1910.217(c)(1)(i), and the appropriate penalty therefor is $300.

3. On August 14 and September 3, 1975, respondent was not in violation of 29 CFR 1910.212(a)(3)(ii).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 1 A of citation 2 for serious violation of 29 CFR 1910.217(c)(1)(i) be and it hereby is affirmed, and that a penalty of $300 be and it hereby is assessed therefor.

2. This proceeding be and it hereby is terminated.

July 28, 1976

DEE C. BLYTHE, ADMINISTRATIVE LAW JUDGE