GARRISON AND ASSOCIATES, INC.

OSHRC Docket No. 4235

Occupational Safety and Health Review Commission

April 22, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The only question remaining in this matter is whether the administrative law judge committed error by concluding to vacate a citation for an alleged non-serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) because he determined that Respondent (Garrison) could not possibly guard the point of operation of its two press brakes. Point of operation guarding is required by 29 C.F.R. 1910.212(a)(3). Irvington Moore, Dkt. 3116 (Rev. Com'n., April 7, 1975); Gem Top Mfg., Inc., Dkt. 2795 (Rev. Com'n., April 7, 1975).

Garrison is engaged, among other things, in the business of custom fabricating sheet metal. The sheets vary in size from very small (about 1 square foot) to large (over 10 feet long). It uses two press brakes to cold from the metal. When Garrison's workplace was inspected, and employee was observed forming a small piece of metal, and his hands were close to the point of operation which was not guarded in any manner. As one of Garrison's employees said, a press brake operator's hands can be as far as two feet from the [*2] point of operation and they can be right at the point of operation. Holding tools are, however, provided for use with small metal sheets.

The case went to hearing and the Secretary through his witnesses introduced some evidence tending to show that press brakes may be guarded by position, and "area guard," "dual controls," or a work rest.

Garrison appeared pro se; it did not offer witnesses; and, it did not produce documentary evidence. Its only evidence on the issue whether compliance is impossible consists of the unsworn opinion of its representative and the hearsay opinions of its insurance company (unnamed) and of the manufacturer of the press brakes.

That is the extent of the evidence of record upon which the administrative judge based his determination. We indicated early in the history of enforcement of the Act that an employer could defend affirmatively on the ground that compliance with a standard is impossible because of the nature of the work in progress. W.C. Sivers Company, Dkt. 239, BNA 1 OSHC 1074, CCH E.S.H.G. para. 17,792 (1972); A.L.J. decision on remand affirmed, 8 OSAHRC 480, BNA 1 OSHC 1733, CCH E.S.H.G. para. 17,791 (1974). And we [*3] have vacated citations to the extent employers have shown that compliance was impossible due to the nature of the work in progress. W.B. Meredith, II, Inc., 9 OSAHRC 245, BNA 1 OSHC 1782, CCH E.S.H.C. para. 18,003 (1974); Universal Sheet Metal Corp., 9 OSAHRC 742, BNA 2 OSHC 1061, CCH E.S.H.G. para. 18,163 (1974); Underhill Construction Corp., Dkt. 2232, CCH E.S.H.G. para. 19,328 (February 21, 1975). But in all such cases the burden has been on the employer asserting the defense to establish it by a preponderance of the evidence.

Clearly, Garrison has failed to carry the burden in this case. Even assuming its "evidence" can be accorded probative weight the very fact that it provided tools for holding small pieces of metal is sufficient to establish that point of operation guarding was possible. When used, such tools provide for guarding by position. Moreover, Garrison's bare opinion evidence is directly contradicted by the Secretary's evidence, some of which was based on actual observations, that guarding could be provided. Accordingly, the citation must be affirmed.

Turning now to the matter of a penalty the Secretary proposed that we assess $25. Garrison is [*4] a very small employer, has no history of prior violations, and appears to have acted in good faith. The proposed penalty, however, is appropriate in view of the obvious gravity of the violation.

Accordingly, the citation for violation of 29 C.F.R. 1910.212(a)(3)(ii) is affirmed, a penalty of $25 is assessed therefor, the judge's report is modified so as to be consistent herewith, and is adopted as modified. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the result reached by Commissioner Van Namee. That compliance with a standard is impossible due to the work being done is, at most, an affirmative defense. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1579 and 74-1568 (2d Cir., March 10, 1975). Further analysis is not necessary here, however, because even if there were an affirmative defense it has not been proved, as my colleague indicates.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This case should be dismissed because respondent was cited for noncompliance with a standard of general applicability when a specific standard regulated the matter at issue.

29 C.F.R. 1910.217(a)(5) specifically applies to press brakes. 29 [*5] C.F.R. 1910.5(c)(1) mandates that the specific applicability thereof results in the nonapplicability of the general standard codified at 29 C.F.R. 1910.212(a)(3)(ii). This point is discussed in the dissenting opinions in Secretary v. Irvington Moore, 16 OSAHRC 608 (1975), and Secretary v. Gem-Top Manufacturing, Inc., 16 OSAHRC 591 (1975).

Additionally, however, the Commission reverses the decision below on the erroneous conclusion that respondent failed to prove the defense of impossibility of compliance.

Respondent custom fabricates sheet metal into various sizes and shapes. This production is not confined to an assembly line type operation whereby only one specific item is manufactured. The record indicates that any type of guard utilized for a certain size piece of sheet metal would not necessarily permit production for a different size.

The court elicited the following information: n1

The Court: Have you made any inquiry into the industry. . .?

Mr. Sneddon: Only through our insurance company. . . [T]hey advise on what is happening in other places. . . .

The Court: Have they ever indicated the guards on these machines. . .?

Mr. Sneddon: No

The [*6] Court: Have you ever discussed it with them?

Mr. Sneddon: Yes

The Court: Did they give you any [explanation] . . . to indicate why they did not request it?

Mr. Sneddon: The only reason that they have indicated is the same one that we have based our discussion on, is that it is not really adaptable to our type of operation. It's a custom practice.

The Court: I understand that the manufacturer even indicates that. Is that correct?

Mr. Sneddon: Yes sir

The Court: The only reason they have guards for them is for one automatic operation, continuously, just the same thing repeated. Is that correct?

Mr. Sneddon: Yes. . . .

Additionally, respondent was asked by complainant if he was

". . . aware of any way to correct this exposure . . .?" Mr. Sneddon: There has been several tried. None of them have apparently worked.

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

n1 Even though this was an unsworn statement, the weight given thereto should not be diminished. Respondent appeared pro se. The Judge asked respondent if anything he said should be included in the record as sworn testimony, to which respondent answered "yes." Therefore I believe the evidence's credibility should not be diminished because of the court's error in failing to formally swear in respondent's representative.

[*7]

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

The only evidence n2 contrary to this information was complainant's sketch of a press brake purportedly showing it with a point of operation guard thereon.

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

n2 The compliance officer testified that he had investigated other press brakes, concluding therefrom that guards were possible. I do not consider this evidence probative, however, because it is not clear from the record whether or not these prior investigations involved only assembly line type productions or the custom type involved here.

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

This sketch was not introduced into evidence. However, even assuming the testimony to be accurate, no conclusion was drawn therefrom whether this guard was feasible in a custom production business, or only in an assembly line type production. Accordingly, it has little probative value.

No convincing evidence of record indicates that a guard for a custom practice is possible so as to permit production. n3 The court below correctly [*8] concluded that neither complainant's inspector, area director, n4 the respondent, or any other employer knew of a guard that would permit satisfactory employment of the press brake for custom design.

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

n3 Therefore, the situation herein differs from the facts before the circuit court whereby the defense of impossibility was not permitted. See Brennan v. Southern Contractors et al., 492 F.2d 498 (5th Cir. 1974); Brennan v. OSAHRC and J. W. Bounds, 488 F.2d 337 (5th Cir. 1973); Brennan v. Verne-Woodrow Company, 494 F.2d 1181 (5th Cir. 1974).

n4 Complainant's area director testified that under these conditions ". . . the most effective means . . . is to get the guy back away from the jaws."

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

Impossibility of performance has been recognized as a defense in these proceedings. see Secretary v. J.H. Baxter and Company, 4 OSAHRC 496, 506 (1973); Secretary v. W.C. Sivers Company, 8 OSAHRC 480, 488 (1974); Secretary v. W.B. Meredeth II, Inc., 9 OSAHRC 245, 246 (1974).

The defense of impossibility to [*9] comply does not require actual physical impossibility. As Commissioner Van Namee stated in Secretary v. University Sheet Metal Corporation, 9 OSAHRC 742, 743 (1974), if ". . . it appears [compliance] . . . would have made it very difficult if not impossible for employers to perform [the work] . . ." (emphasis added), for affirmative defense has been sustained.

I believe the evidence indicates that respondent met that test.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting the Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that as the result of the inspection of a workplace under the ownership, operation, or control of the Respondent, located at 1200 East Fifth Street, North Little Rock, Arkansas, and described as follows, "Sheet metal fabrication and roofing," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards [*10] promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on July 31, 1973, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on October 18 1972, (37 F.R. No. 202, and codified in 29 CFR part 1910.)

The description of the alleged violations contained on said Citation states:

Item 1. Place of employment was not kept in a clean and orderly condition; i.e. accumulation of waste scrap metal on the west end of the fabrication shop.

Item 5. The point of operation of machines whose operation exposed an employee to injury was not properly guarded; i.e. (a) Cincinnati press brake 3-50 (c) Cincinnati press brake No. 25705.

The standards as promulgated by the Secretary provide as follows:

Section 1910.22 General requirements. (a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

Section 1910.212 General Requirements for all machines. (a) Machine guarding -- (3) Point of Operation Guarding. (ii) The point of operation of machines whose operation exposes [*11] 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.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated July 31, 1973, from J. T. Knorpp, Area Director of the Tulsa, Oklahoma Area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violation at Item 5 of the Citation alleged in the amount of $25.00 and no penalty for the alleged violation at Item 1 of the Citation.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Little Rock, Arkansas, on December 11, 1973.

FINDINGS OF FACT

1. Jurisdiction to hear and adjudicate the matters in this proceeding was neither denied nor contested by Respondent.

2. Respondent is engaged in the business of roofing and custom sheet metal fabrication and [*12] as such has a sheet metal fabrication plant in North Little Rock, Arkansas.

3. Scrap metal was stored in a pile adjacent to the outside of the Respondent's plant 3 or more feet from a doorway. This doorway was sometimes used as a means of ingress and egress by Respondent's employees. No work was performed at or near the scrap pile except the workman who was periodically engaged in creating the pile by removing scrap metal from the work areas within the plant and depositing it upon the pile.

4. There were two press brakes within Respondent's plant, neither of which was equipped with a barrier to guard the point of operation.

5. Each of the two press brakes employed in Respondent's plant is an apparatus consisting of interrelated parts with separate functions, used in the performance of custom fabrication of sheet metal.

6. Respondent, by the use of its press brakes, fabricates sheet metal into various sizes and shapes.

7. The nature and extent of Respondent's use of it's press brakes in not confined to an assembly with line operation in the fabrication and forming of one specific item.

8. The point of operation on the press brakes is 3 inches in depth and 12 feet in length. [*13]

9. To date neither the manufacturer of the press brakes, the Respondent, any other employer, engaged in similar use of press brakes, nor anyone else has been capable of designing and employing a point of operation guard that will permit any degree of satisfactory employment of the machine in custom fabrication of sheet metal.

10. There has been only one minor injury to an employee attributable to the point of operation of the press brake at Respondent's plant within a period of over 18 years.

11. Each press brake machine at Respondent's plant is operated by one employee and he controls the movement of that part of the machine, the ram, that forms the metal, by use of a manual foot switch on one press brake and a foot electric switch on the other. On the manual lever the operator mashes down thereon with his foot after a particular piece of metal is inserted and placed for framing, whereas upon the electric he simply presses the switch with his foot. Any time the foot is released from either contact the operation stops instantly.

12. The only instance of an injury outside Respondent's plant occurred to the one of two workmen not in control of the activator while [*14] they were working at an unguarded press brake together.

13. The manufacturer of the press brakes has provided an electronic device for guarding where the use of the press brake is for braking the same item continuously, which cannot be adapted to Respondent's operation.

14. Neither the Inspecting Officer nor the Area Director for the Secretary had any knowledge of an appropriate guard that could be adapted to Respondent's custom fabrication of sheet metal. Further, enither has ever witnessed an operation similar to Respondent's where any kind or type of guard was utilized and in service.

15. The Area Director's only knowledge of guards for press brakes was from literature published by the Department of Labor.

16. Respondent and similar sheet metal fabricators have tried several means and methods of guarding point of operation on press brakes and none have been compatible with custom fabrication of sheet metal.

17. The electronic device furnished by the maker of Respondent's press brakes is a permanent fixture to the machine and requires the gauges to be forward in the press whereas the gauges must be aft to enable Respondent to perform its work upon and within the press. [*15] The manufacturer of that device concedes that it cannot be utilized in Respondent's operation.

THE ISSUES

1. Does the fact that Section 29 CFR 1910.217(5) specifically excludes press brakes from the requirements of Section 1910.217, Mechanical power presses, prohibit the application of 29 CFR 1910.212, General requirements, for all machines, and more specifically section 1910.212(a)(3)(ii).

2. If Section 1910.212(a)(3)(ii) is applicable has Respondent made a case for impossibility of compliance therewith.

DISCUSSION

I

The Review Commission has held in Secretary of Labor v. Isaacson Structural Steel Company,

This tribunal fails to comprehend the logic of that decision. The description of the press brakes employed by the Respondent in the instant case unequivically classify these press brakes as mechanical power presses by the very definitions of "brake" and "press" as contained in Section 1910.211(2) and (46).

It is argued, [*16] of course, that since press brakes are excluded from the specific standards, they must necessarily be included under the general standards for machine guarding. The proponents of that argument, no doubt, would further argue that if the fashioners of the standards wanted press brakes excluded from the general standards, they may well have so stated in specific terms. But a press brake is a power press, albeit one of a kind or type. All power presses, be it a press brake or some other kind of power press, certainly have the same or similar kind of hazard presented from the point of operation of each machine. Moreover, it appears arguably correct to rationalize that the fashioners of the standards were aware of the impracticalities of the point of operation guarding, among other things, and specifically excluded press brakes from the provisions of the standards relating to mechanical power presses.

Furthermore, it is observed that all mechanical power presses installed prior to August 31, 1971, were excluded from the provisions of 1910.217, excepting care and use, until August 31, 1974. Further, attention is presently directed to the recent announcement of the Occupational [*17] Safety and Health Administration that:

The rule which would have required employers to eliminate the need for power press operators to place their hands or fingers within the point of operation of their machine will be revoked in the near future. (See Occupational Safety and Health Reporter, the Bureau of National Affairs, Inc. February 14, 1974, Volume 3, No. 37)

Along with this announcement is a very significant statement in this to wit:

Revocation of this rule, which would have become effective on August 31, would align OSHA requirements with those recommended by the American National Standards Institute.

Comparing the point of operations standards contained in Section 1910.212 and Section 1910.217 there is relatively no difference except those contained in 217 are detail and specific.

It is also significant to observe that Section 1910.212(3)(iv) states generally that power presses are machines which usually require point of operation guarding. This suggests, by reason of the exclusion in Section 1910.217(5) the fashioners of the standards has long since determined, although a power press brake usually requires point of operation guarding, that by reason of its very nature [*18] and employment functions it was impractical to require such guarding. Moreover, no manufacturer of press brakes, no employer or operator thereof has to date designed and constructed a guarding device reasonable and appropriate for point of operation on press brakes used in custom fabrication, nor has any safety expert in this field come forward with such a guarding device. Thus, the exclusion in specific terms under Section 1910.217.

Now it would appear that OSHA will revoke the rule as to all power presses in the near future. Query -- After the revocation of the rule, will OSHA enforce the provisions of Section 1910.212(a)(3)(ii) upon an employer of a power press because it has been excluded in Section 1910.217? Or is a press brake a different kind of machine that cannot be classified as a power press? There certainly has not been anything of significance brought to the attention of this tribunal by the record made in the instant case nor otherwise that indicates that a power brake is disassociated with a power press to the extent that their respective points of operation differ in any respect whatsoever as to the hazard presented. Each and every one of them has to [*19] do with fingers and hands.

In view of the law pronounced in the Isaacson Case, supra, the foregoing may be merely an exercise in rhetoric. Nevertheless, in good conscience and with all due respect to the Review Commission's judgment in the Isaacson Case, supra, this tribunal has been compelled to set forth its discourse on the subject matter.

II

Respectful of the Commission's pronouncement in Isaacson, supra, there is no alternative to a finding that Respondent caused its press brakes to be used by its operators thereof without providing guards at the point of operation as charged in the Citation and the Compliant.

This, then, presents a second issue as to impossibility of compliance which apparently was not raised in the Isaacson Case, supra.

There are thirty-nine (39) paragraphs at Section 1910.217(c) entitled "Safeguarding the point of operation," devoted to that subject, none of which the fashioners of the Standards felt were reasonable or appropriate to press brakes. And now it seems that the Secretary of Labor will soon revoke these Standards as to all power presses.

Section 1910.212(a)(3)(ii) states:

The guarding device shall be in conformity with any [*20] 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.

Inasmuch as press brakes are specifically excluded from specific standards the industry and the employer is relegated to designing and constructing such guarding device without any guidelines whatever, except that any such device so constructed and designed shall prevent any part of the body of the operator from being in the danger zone during the operating cycle.

To date all such devices that have been engineered and fabricated by anyone have been tried and found wanting, to the extent that upon preventing the operator, in a custom fabricating sheet metal plant, from having his fingers and hands in the danger zone then the work cannot be performed with the use of a press brake.

Respondent, here, has indicated conclusively that he would like nothing better than to find an appropriate device that would eliminate the exposure and at the same time permit his work to be performed. Additionally, he will continue to experiment and try any alleged appropriate [*21] device in an effort to abate.

Surely the Congress did not intend that the enforcement of any standard should cripple any industry, otherwise it would not have provided economic provisions where a standard must be enforced. More importantly, it would not have so carefully phrased Section (2)(b) of the Act, that is, declaring the purpose and policy of the Act to be "to assure so far as possible every working man and woman in the nation safe and healthful working conditions." (Emphasis added)

The Respondent demonstrated rather convincingly that at this point in time there is just no physical means nor method existing that will prevent exposure of fingers and hands at the point of operation on press brakes that at the same time permits custom fabrication of sheet metal. Moreover, the Secretary failed to rebut this evidence with any substantial evidence.

It seems fair to assume from all the facts and circumstances presented that the incident of injury from unguarded power presses, including power brakes, nationwide, is miniscule. The evidence certainly is conclusive that such is the case at Respondent's plant with only one minor mishap in well over eighteen (18) years.

To hold [*22] Respondent accountable to the standard alleged upon the record as a whole would be unjust, unfair and tantamount to unequal treatment under the law. The inability to comply is through no fault of the Respondent. Impossibility of compliance should be and is hereby held to be a good, sufficient and adequate defense under the particular facts and circumstances of this case. See Secretary of Labor v. J.H. Baxter and Company, Docket No. 2043; CCH Occupational Health Guide paragraph 16,315.

Accordingly, Item 5 of the Citation and its proposed penalty should be vacated.

III

The facts and circumstances relating to the alleged housekeeping violation fail to make a case therefor. The pile of scrap in question was in no way related to a place of employment, passageway, storeroom or service room where work was being performed. Moreover, there was not even a scintilla of evidence that any employee, including the employee who created the pile, was exposed to any hazard on account of the scrap pile and its location. Accordingly, Item 1 of the Citation should therefore be vacated.

CONCLUSIONS OF LAW

1. To make a case for a housekeeping violation under the standard alleged, [*23] there must be a substantial showing that the location thereof is within the confines of the place of employment and that it in fact is hazardous.

2. Where the mandatory requirements of a safety standard cannot be complied with by an employer, without any fault therefor, he is thereby rendered unaccountable thereto.

3. A good and valid standard, although mandatory, must meet the test of being reasonably necessary or appropriate to provide safe and healthful employment and places of employment to be enforceable.

3. Where the chance of injury is miniscule and the possibility of compliance with a certain standard is nonexistent, that standard relative to those peculiar facts and circumstances is thereby unenforceable.

5. Press brakes are specifically excluded from the requirements of 29 CFR 1910.217 by virtue of 217(5).

6. The provisions of Section 1910.217 relates specifically to mechanical power presses whereas the provisions of Section 1910.212 relate to general requirements for all machines.

7. Presently it is the rule of law by the Review Commission that press brakes are amenable to the provisions of Section 1910.212(a)(3)(ii).

ORDER

Wherefore, it is adjudged [*24] and Ordered that:

Item 1 and Item 5 of the Citation and the proposed penalty for Item 5 thereof, as in this case contested, be and they are hereby vacated.

It is so ORDERED.