RKL BUILDING SPECIALITIES CO., INC.

OSHRC Docket No. 15879

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

Francis V. LaRuffa, Regional Solicitor, USDOL

Joseph A. Kucich, Secy-Treas., RKL Building Specialties Co., 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 [*2] the significance of 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 agree with Judge Alfieri's disposition of this case because the evidence establishes that respondent's employees were actually exposed to the alleged hazard. See Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion). However, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with my colleagues' views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Alfieri'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

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Rudolph E. DeMeo., for complainant

Joseph A. Kucich, Secty.-Treas. (Pro Se), RKL Building Specialties Co., Inc.

Alfieri, Judge.

STATEMENT OF THE CASE [*3]

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) contesting one serious citation issued on November 11, 1975 by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

The citation, number 2, alleges that an inspection made on November 4, 1975, of respondent's workplace, located at 23-93 48th Street, Long Island City, New York, showed that the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)) because it failed to comply with the occupational safety and health standard promulgated under section 6 of the Act (29 U.S.C. 655) and codified in 29 CFR 1910.217(c)(2)(i)(a) relating to mechanical power presses.

The standard reads:

"(c) Safeguarding the point of operation.

(2) Point of Operation guards.

(i) Every point of operation guard shall meet the following design, construction, application, and adjustment requirements:

(a) It shall prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard."

The violation is described as follows:

"Bliss Power Press (19 [*4] 1/2B) located on the west side of shop and which was used for a stamping operation, guard was not constructed in such a manner that it will prevent the entry of hands or fingers into the point of operation by reaching through, over, under or around the guard. Both sides of press were not guarded thus exposing employees to serious physical harm from the hazard of the point of operation."

Pursuant to the enforcement procedure in section 10 of the Act (29 U.S.C. 659), the respondent was informed by notice dated November 11, 1975 of the proposed penalty and the violation.

At the opening of the hearing in order to frame the issues it was necessary first to determine the true intent of respondent's notice of contest. That is to be gleaned from the pleadings subsequent to the notice of contest. (Secretary v. William W. Turnbull, Docket No. 7413 (December 15, 1975).

Respondent's notice of contest, dated November 19, 1975, signed by Joseph A. Kucick, Secretary-treasurer, reads as follows:

"We contest proposed penalty of $700.00 for Item No. 6 1910.217(b)(3)(i) Page 23724, Page 23725, Citation No. 2 resulting from inspection no November 4th for the reason that Bliss Power Press [*5] (19 1/2B) as mentioned above was not in operation at the time of inspection and all presses are guarded when in operation." n1

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n1 Reference to item number 6 is clearly an error. The item is properly number 1 of citation number 2.

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In the complaint, filed on December 12, 1975, the Secretary in paragraph IX, alleges that since the notice of contest is directed only to the penalty the citation has become final.

The respondent's answer, a letter dated December 15, 1975, germane to the question of intent, reads:

"We deny cause for proposed penalty of $700.00 for Item No. 1 1910.217(c)(2)(a) Page 23725, Citation No. 2 resulting from inspection on November 4th 1975 for the reason that Bliss Power Press (19 1/2B) as mentioned above was not in operation at the time of inspection and all presses are guarded when in operation."

At the hearing, in response to a question from this Judge, Joseph Kucich stated that the objection was to the serious violation and the penalty (Tr. 7).

In Turnbull, supra, the Review Commission [*6] was presented with almost identical facts and held that the respondent's true intent was to contest both the citation and penalty. Like Turnbull, in this case, there can be no doubt that respondent's notice of contest was limited to the penalty. However, respondent's answer to the compliant dispels any doubt that its actual intent was to contest both the citation as well as the penalty. Under the authority of the Turnbull case, supra, this Judge ruled that the respondent's true intent was to contest the serious citation numbered 2 and the penalty.

ISSUES

1. Whether respondent violated 29 CFR 1910.217(c)(2)(i)(a).

2. If respondent did violate 29 CFR 1910.217(c)(2)(i)(a) where the violation was serious.

3. Whether the penalty proposed is appropriate.

SUMMARY OF EVIDENCE

Complainant's compliance officer testified that while inspecting the respondent's workplace he observed a Bliss (19 1/2B) power press that was guarded at the front but not at the sides. The side openings were about 10 inches by 10 inches and the point of operation was set back about 3 or 4 inches from the open sides. He described the press as a full revolution machine that was operated [*7] by depressing a foot pedal and when the pedal is depressed the upper portion of the press, the cam, comes down and completes a cutting operation. As long as the pedal is depressed the press will operate continuously.

The compliance officer further testified that he observed respondent's employee, Raymond O'Toole, operating the press for about one minute. O'Toole had his foot on the pedal and metal was being fed into the front of the press. O'Toole's hands were free, about 2 or 3 feet away from the front of the point of operation (Tr. 22), and about 2 feet from the open sides of the press (Tr. 32). The compliance officer stated that the operation of the press would not require its operator to put his hands into it. However, he speculated that the operator might, if there was a malfunction, put his hands into the machine to correct it. He further stated that under that circumstance the operator, he imagined, would have to release the foot pedal and go around the press to correct the malfunction (Tr. 32).

The left side of the press faces an aisle used by respondent's employees. The compliance officer noticed three or four of them passing within 3 feet of the 10 inch by 10 inch [*8] opening.

The compliance officer stated that he deemed the violation to be serious because an injury from the press can cause death, serious physical harm or amputation of part of the hand or finger.

In determining the proposed penalty, credit was given for size, good faith and history. A penalty of $700.00 was recommended.

Respondent's witness, Raymond O'Toole, testified that he was a regular factory worker who also operated the Bliss power press. He denied operating the machine at the time alleged by the compliance officer. He admitted only seeing the compliance officer at the worksite.

On cross-examination he stated that he alone operated the Bliss power press and last operated it about 2 or 2-1/2 weeks prior to the day of inspection. When asked about the machine malfunctioning he replied that if that happened he would shut down the machine by turning off the power switches.

Joseph Kucich, called as a rebuttal witness by complainant, testified that the subject power press was last used in September 1975; that O'Toole was not operating the press on November 4, 1975, the day of the inspection, but was operating a different machine 30 feet away and that he, Kucich, showed [*9] the compliance officer how the press operated. With respect to the guard he testified that it was a standard Hum guard purchased about 15 years ago.

DISCUSSION

The respondent's problems arise under section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)), commonly referred to as the "special duty clause". That section requires employers to comply with the occupational safety and health standards promulgated under the Act. The Administrative Procedure Act, 5 U.S.C. 556(d), places the burden of proving alleged violations of the Occupational Safety and Health Act upon the complainant.

With respect to the machine guard the evidence shows that the front of the press is guarded. However, both of its sides have openings that measure about 10 inches by 10 inches. The point of operation is about 3 inches in from the open sides. Thus, the complainant having shown that the respondent's power press was not guarded at either side in a manner that will prevent the entry of hands into the point of operation, by reaching around, through, over or under the guard, has established the existence of the violation. That standing alone, however, is not sufficient to warrant affirming the citation. [*10] Secretary v. Bachtel Corp., 12 OSAHRC 774 (1974); Secretary v. City Wide Tuckpointing Co., 3 OSAHRC 194, 196 (1973). Rather, there also must be a showing of employee exposure or access to the hazard. Secretary v. Gilles & Cotting, Inc., Docket No. 504 (February 20, 1976).

There is a sharp conflict of testimony whether or not the compliance officer did observe O'Toole operating the power press. There is not one iota of evidence which would warrant a finding that the compliance officer was indulging in a flight of fantasy. That cannot be said of "O'Toole's testimony on this point. I credit the testimony of the compliance officer that he did see O'Toole operating the Bliss power press.

The question presented then is whether O'Toole, the power press operator, had access to the unguarded point of operation of the power press. Dispositive of the question is the recent holding of the Review Commission in the Gilles & Cotting case, supra. Chairman Frank R. Barnako, who wrote the lead opinion concluded that a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure. [*11] Barnako, noting that in the Gilles & Cotting case the respondent admitted its employees had access to the zone of danger, went on to say that it other cases the Commission would expect the Secretary to establish access by evidentiary facts.

Here the respondent's employee, O'Toole, who was assigned to operate the power press stated unequivocally that if the power press malfunctioned he would shut off the power. The testimony of complainant's compliance officer supports the respondent. He stated that if there was a malfunction, the respondent's employees would put his hands into it to correct the malfunction. However, he went on to say that if that happened the employee would have to release the foot pedal and go around the press to correct it. It is important here to note that when the foot pedal is released the press, after completing its full revolution, will stop. In addition, O'Toole's testimony that he would shut off the power is uncontradicted. Considered within the framework of the rule of access based on reasonable predictability the complainant has failed to sustain the burden of proof as to the employee O'Toole.

Complainant's case is not limited to O'Toole. [*12] Its evidence shows that three or four other employees of respondent were observed walking back and forth within 3 feet of the unguarded left side of the power press. Respondent does not rebut this. The Gilles & Cotting, supra, ruling is equally applicable to this part of the case. Accordingly, applying that rule the complainant has, as to these employees, established access to the unguarded left side.

It is alleged that respondent's failure to comply with the standard 29 CFR 1910.217(c)(2)(i)(a) constituted a "serious" violation within the meaning of section 17(k) of the Act (29 U.S.C. 666(j)), which provides:

"A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such places of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

On this record, it is abundantly clear that respondent had knowledge of the presence of the violation. There is [*13] a substantial probability that serious injury or death could have resulted if respondent's employees' hands or fingers entered into the point of operation of the power press.

There remains for consideration the proposed penalty of $700.00. I do not agree that it is appropriate under the circumstances of this case. Pursuant to section 17(j) of the Act (29 U.S.C. 666(i)), the Commission is obliged to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in arriving at the amount of a suitable penalty. Secretary of Labor v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972).

After due consideration of the four criteria set forth in section 17(j) of the Act (29 U.S.C. 666(i)) it is determined that a penalty of $100.00 is warranted.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notification of proposed penalty, notice of contest, pleadings, briefs, representations, stipulations and admissions of the parties, it is concluded that the preponderance of evidence, on the [*14] entire record, supports the following:

FINDINGS OF FACT

1. That respondent RKL Building Specialties Co., Inc., was an employer maintaining a place of employment at 23-93 48th Street, Long Island City, New York.

2. That the Bliss Power Press (19 1/2B) located on the west side of the shop was not guarded on either the right or left sides which had openings measuring about 10 inches by 10 inches.

3. Respondent's employees walking up and down the aisle on the left side of the power press were within 3 feet of the unguarded opening.

4. That respondent's employees were exposed to serious physical harm from the hazard of the point of operation which was about 3 inches in from the unguarded opening.

5. The complainant's compliance officer did observe Raymond O'Toole operating the power press.

6. That Raymond O'Toole would turn off the power before attempting to correct a malfunction of the power press.

7. That Raymond O'Toole while operating the power press was not exposed to the hazard.

CONCLUSIONS OF LAW

1. The respondent is, and at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of section 3 of the Act (29 U.S.C. [*15] 652).

2. Respondent on June 9, 1975, was in violation of section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with 29 CFR 1910.217(c)(2)(i)(a).

3. The violation of 29 CFR 1910.217(c)(2)(i)(a) was a serious violation within the meaning of section 17(j) of the Act (29 U.S.C. 666(i)).

The citation, number 2, is affirmed and the penalty assessed is in the sum of $100.00.

SO ORDERED.

EDWARD V. ALFIERI, JUDGE, OSAHRC

Dated: June 7, 1976

New York, New York