A & M SHEET METAL, INC.

OSHRC Docket No. 4435

Occupational Safety and Health Review Commission

October 29, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Jerry W. Mitchell, dated August 24, 1974, is before the Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record, we find no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER: I respectfully dissent from the action of my colleagues, and hold that the Administrative Law Judge erred.

The majority opinion falls short of ruling upon the exceptions of the Secretary of Labor in the manner required by section 8(b) of the Administrative Procedure Act. 5 U.S.C. section 557(c). The majority does not adopt the Administrative Law Judge's decision as its own. It merely finds "no prejudicial error" in his decision. It is unclear whether they find that there is no error whatsoever, or whether there is error but it is not prejudicial. If the latter is intended there is no indication as to why it is not prejudicial. Of course it is not necessary that the exceptions be separately or expressly ruled upon. Key v. United States, 263 F. Supp. 544 (S.D. Ind. 1966). But the Secretary [*2] of Labor is entitled to know why his exceptions are overruled. Judicial review may not be possible without a more definite statement of reasons. Cf. B.F. Goodrich Co. v. O.S.H.R.C., No. 74-1836 (6th Cir., May 14, 1975).

Respondent, at its plant in Takoma, Washington, is engaged in the fabrication, distribution and installation of metal duct work. Respondent employs 17 employees at its sheet metal shop. The shop was inspected on August 3, 1973. On August 20, 1973, two citations were issued alleging one serious violation and five non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Respondent contested only the citation for serious violation that alleged a failure to guard the point of operation of a Bateman Junior Ironworker as required by the occupational safety and health standard at 29 CFR 1910. (212(a)(3)(ii).

On August 22, 1974, Judge Jerry M. Mitchell issued his decision in this case. Judge Mitchell vacated the citation for serious violation on the ground that the Secretary failed to prove that employees were exposed to the point of operation of the Bateman Junior Ironworker during its [*3] operating cycle. On September 23, 1974, review before the full Commission was directed with respect to the two issues raised by the Secretary of Labor's petition for review: (1) whether the Judge erred in concluding that the evidence failed to establish a violation of the cited standard; and (2) whether a violation of 29 CFR 1910.212(a)(3)(ii) is shown where the Secretary demonstrates that an operator could place his hand within the point of operation of the Bateman Junior Ironworker.

The Bateman Junior Ironworker, hereinafter called "the Ironworker," is a multi-purpose cold metal forming machine used to cut and punch holes in metal. It has three sets of dies to perform three separate functions: (1) to cut angle irons, (2) to cut flat bars, and (3) to punch holes in both types of metal. The machine is electrically operated and is activated by depressing a foot treadle which simultaneously engages each of the three dies. An employee operating the machine stands directly in front of it approximately eighteen inches away. Pieces of metal up to twenty feet long are inserted by the operator from either the left or right side of the machine. The operator holds the metal to be cut [*4] or punched with his hands (one on each side of the point of operation), and then depresses the foot treadle. The metal is cut into pieces as small as twelve inches in length.

The opening between the dies of the Ironworker is about two inches. The Ironworker was in use an average of one hour per day during the two months before the inspection. The punch has a collar around it, but there is no point-of-operation guard. No point-of-operation-injuries had occurred on this machine.

The standard at 29 CFR 1910.212(a)(3)(ii) provides:

1910.212 General requirements for all machines

(a) Machine guarding --

(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 operation of machines where operation 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. (Emphasis added.)

Under [*5] the terms of the standard employee exposure to injury is plainly an element of proof. Judge Mitchell held that the Secretary failed to prove this element, stating that "no part of an employee's body is shown to enter or even approach the danger area at the point of operation during the operating cycle."

In my view the evidence clearly satisfies the requirement that there be exposure to injury. Judge Mitchel emphasized that "no part of an employee's body is shown to enter . . . the danger area at the point of operation during the operating cycle." Such a showing by the Secretary was not required. If an employee's finger or hand were located in the danger area during the operating cycle, then it would be punched or severed in the same fashion as a piece of angle iron. As explained herein, to prove a violation of the standard, however, the Secretary need only prove exposure to injury, not an actual injury.

Judge Mitchell's own factual findings do not support his finding that "no part of an employee's body is shown to . . . even approach the danger area at the point of operation during the operating cycle." The operator of the Ironworker stands only eighteen inches from the machine. [*6] His hands feed material into the machine, with one hand on each side of the point of operation. No point of operation guard at the time of the inspection shielded the two inch opening within which a worker could place a finger or hand. Material is cut into pieces as short as twelve inches, thus it may be inferred that the operator may perform punches and cuts on relatively short pieces of material. The propinquity of the operator's body to the machine, the necessity of placing one hand on each side of the point of operation, and the likelihood of performance of operations on short pieces of material all demonstrate that an operator's fingers and hands closely approach the point of operation. Whether the typical distance is six inches or sixteen inches is immaterial; the operator's hands are positioned in the vicinity of the point of operation, and the two-inch access to the point of operation is large enough to accept a finger or hand. From the foregoing, I conclude that there is exposure to injury.

Subsequent to Judge Mitchell's decision, the Commission has reviewed four cases involving 29 CFR 1910.212(a)(3)(ii). Three of the cases considered whether the "exposure [*7] to injury" requirement of the standard was met. In J.R. Simplot Co., No. 2094 (March 3, 1975), exposure to injury arose from the fact that, "Respondent's use left gaps between the material being sawed and the guard of such dimensions that an operator's fingers and hands could come into contact with the blade." In Irvington-Moore, No. 3116 (April 7, 1975), the Commission held that the exposure requirement was met where the employee's hands were within three inches of the point of operation. In Sheet Metal Specialty Co., No. 5022 (April 22, 1975), the operator had one hand within twelve inches of the point of operation, while a helper's hands were within twelve and eight inches of the point of operation. The Commission held that, "On these facts there can be no doubt that both the operator and helper were exposed to the hazard presented by an unguarded point of operation."

These Commission decisions demonstrate that the exposure to injury requirement of 29 CFR 1910.212(a)(3)(ii) is met by the possibility that an employee could place a finger or hand in the point of operation during the operating cycle. No showing need be made that an employee's hand is within or immediately [*8] adjacent to the point of operation. Access to the point of operation and the presence of hands in the area surrounding the point of operation are sufficient to constitute exposure to injury. Both factors are present in the operation of respondent's Ironworker.

A narrower reading of the standard cannot be justified. The standard requires that guarding devices be designed so as to prevent the possibility of an operator having any part of his body in the danger zone during the operating cycle. The standard is clearly meant to be preventive, and should logically apply whenever there is the possibility of an accident occurring. The stated purpose of the Act to eliminate "so far as possible" the incidence of job-related injuries and disease (29 U.S.C. 651) must be considered in applying 29 CFR 1910.212(a)(3)(ii). Preventability is the keystone of the Act. Underhill Constr. Co. v. Brennan & O.S.H.R.C., 513 F.2d 1032 (2d Cir. 1975).

The realities of the workplace also dictate that the possibility of an accident should suffice to prove exposure to injury. Industrial accidents occur as a result of numerous factors, including hazardous or defective equipment, inadequate [*9] operating procedures, poor training, and employee inadvertence. Human preventability factors, no less than mechanical ones, must be considered by the Commission if the Act is to be effective. As stated by the District of Columbia Circuit Court in Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11 (D.C. Cir. 1940), cert. denied 310 U.S. 649 (1940):

[T]he [work] environment includes associations as well as conditions, and . . . associations include the faults and derelictions of human beings as well as their virtues and obediences.

Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. Work could not go on if men became automatons represed in every natural expression. 112 F.2d at 15.

These human factors necessitate that a violation of 29 CFR 1910.212(a)(3)(ii) be found [*10] whenever an operator could place his hand within the point of operation.

Judge Mitchell's decision confuses exposure to injury with the probability that an accident will occur. He emphasized that there was "no showing of any specific reason why a hand should be inserted or even how one could be inadvertently placed in danger." This is a conclusion as to the likelihood of an accident, not as to worker exposure to the possibility of an accident. The probability that an accident might occur is relevant only to the gravity of the violation and not to the finding of the violation itself. California Stevedore & Eallast Co. v. Occupational Safety and Health Review Commission, 517 F.2d 986 (9th Cir. 1975); RPM Erectors, Inc., No. 1114 (September 3, 1974). The low probability of an accident occurring under these facts would dictate the imposition of a small to moderate penalty. However, the possibility of an accident occurring did exist, and for this reason the Commission majority errs in affirming Judge Mitchell's vacation of the citation.

[The Judge's decision referred to herein follows]

MITCHELL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational [*11] Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) contesting a Citation for Serious Violation issued by the Secretary of Labor (Complainant) against A & M Sheet Metal, Inc. (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "a sheet metal shop" located at 2331 Fawcett Avenue in Tacoma, Washington, was inspected on August 3, 1973 by a Compliance Safety and Health Officer (CSHO) on behalf of Complainant. During the inspection alleged violations of six (6) specific safety standards were noted. As a result of the inspection a Citation for Non-Serious Violation (5 Items) and a Citation for Serious Violation (1 Item) were issued on August 20th. The standards allegedly violated were duly promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, Part 1910.

Respondent has only contested the Citation for Serious Violation. The Citation for Non-Serious Violation and each of the Items thereon have become a final order of the Commission pursuant to Section 10(a) of the Act. The alleged violation covered by the contest is described in the Citation [*12] in the following language with the safety standard involved quoted immediately thereafter:

Citation for Serious Violation --

"Failure to guard the points of operation where the operation of the punch, flat bar cutter, and angle iron cutter exposes employees to injury on the "Bateman Inc." Angle Iron Cutter located in the center of the shop."

ABATE -- "Sept. 20, 1973)"

Standard -- 1910.212(a)(3)(ii) --

Subpart 0-Machinery and Machine Guarding

1910.212 General requirements for all machines.

(a) Machine guarding --

(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 operation of machines whose operation 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."

Pursuant to the enforcement procedures provided in Section 10(a) of the Act, Respondent was duly advised by a Notification [*13] of Proposed Penalty dated August 20, 1973 of the proposal to assess a penalty of $600 in connection with the Citation for Serious Violation. In a timely manner, Respondent requested "a hearing before the Occupational Safety and Health Review Commission" on the Citation for Serious Violation. A complaint was filed by Complainant. Respondent failed to answer the complaint until after Complainant filed a Motion to Affirm Citation and Proposed Penalty because of Respondent filed a denial of Article IV of the complaint, Complainant withdrew the motion. On November 27th the case was noticed for trial in Seattle, Washington on January 16. The January 16th trial date was changed to January 11th at Complainant's request. Trial was held at Seattle on January 11th and 16th.

PROCEEDINGS AND EVIDENCE

When the trial convened, each party was represented by competent legal counsel. Respondent's counsel stated that he had only entered the case on the previous day. Prior to that time Respondent had handled the case pro se. There was no appearance by or on behalf of any employees even though a union is designated as employee representative.

A discussion preliminary to the receipt of evidence [*14] broadened the issues so as to place the occurrence of the violation, the appropriateness of the penalty, the abatement period, and the specific identification of the machine involved, in issue. After this broadening of issues, Complainant was granted a 5 day continuance to obtain additional witnesses to meet the issues raised in addition to the single issue raised by Respondent's pro se answer.

When the trial reconvened counsel for Respondent conceded that Respondent is involved in interstate commerce. He thus admitted jurisdiction. The first witness called by Complainant was Respondent's shop Superintendent (Farnsworth) who had served in that capacity for 3 1/2 years. He identifies the machine involved here as a "Bateman Junior Iron Worker" which performs 3 separate functions. It was purchased second-hand by Respondent about 2 years before the inspection. It is ordinarily used about twice-a-week for about 15 to 30 minutes each time. However, in the two months prior to the inspection Respondent was working on a heavier work load and was using the machine an average of an hour per day. This witness has never observed or reported an injury on an Iron Worker. [*15]

The machine is activated by depressing a foot treadle. Holding the treadle down causes the machine to repeat its cycle. When the machine is activated, an upper die descends and performs certain functions by acting on the materials against a lower die. Depending upon where the material to be worked upon is placed, the machine will either cut angle iron, flat bar iron or punch holes in such materials. The punch travels about 3 inches in making a stroke. Both of the cutters and the punch come down at the same time on every cycle. The materials to be worked on are fed into the machine by hand by an operator who stands immediately in front of the machine and about 18 inches from it. He feeds the materials into the machine from the right side toward the left side.

The Compliance Safety and Health Officer (CSHO) was called as Complainant's concluding witness. He describes his inspection of Respondent's workplace (sheet metal shop) on August 3, 1973. Seventeen (17) employees were working at the site. The cited machine was identified to him as a Bateman Angle Iron Cutter. He did not see it in operation but was told that it was operated about 8 hours per week. He was also told [*16] that it was operated in the condition in which he observed it. The point of operation was not guarded in any manner -- there was no guard or device on the machine which would keep a part of the body from being placed in the point of operation. The machine functions when two dies come together to act upon material inserted between them. There is a gap of about 2 inches between the dies when they are open. The operator feeds the material into the machine with his hands and on occasion removes the material in the same way. He stands with his hands and body close to the point of operation. If his hands or fingers are inserted into the gap they will receive the same action as does the metal stock -- either cut off or a hole punched through them.

This witness has had some experience with sheet metal operations during his professional education but has never worked in a sheet metal shop. He has inspected about 40 sheet metal shops while employed as a CSHO. During this time he has seen iron-worker machines such as that cited which were fitted with guards for the point of operation. He describes various types of guarding arrangements that could be used on the machine and [*17] readily admits that some of them may not be able to be used in sheet metal operations. He also describes the manner in which he computed the proposed penalties.

Respondent's first witness was its Manager. He testifies that the cited machine was purchased approximately 3 years before the inspection. Prior to working for Respondent this witness had worked for sign companies and had used Bateman machines. He has never seen an injury on this particular machine nor on machines similar to it. A state inspection was made of their workplace in October of 1971 but no citation was issued. This witness states that there is a collar guard on the punch which prevents a finger injury. However, he admits that a finger could be placed on the collar. Following the August 3rd inspection Respondent fabricated a solid plastic wrap-around guard which Respondent's Manager determined was better than the guard made available by the manufacturer after the inspection. This guard was installed on the machine prior to the September 20th abatement date.

Respondent's shop superintendent (Farnsworth) was recalled by Respondent as a witness. He testifies that he has been a sheet metal worker for 28 years [*18] including his time in training as an apprentice. In this time he has seen 5 different Batemans and has never known of an injury to occur on any of them or on any similar machine. He has never seen one of these machines that came from the manufacturer with a guard installed.

Respondent's concluding witness (Hansen) is a sheet metal worker who has been employed at Respondent's workplace for 8 years. He has been a sheet metal worker since 1945, including 4 years of apprentice training. He was responsibile for Respondent's purchase of this particular machine since he had been familiar with it while he was employed by its previous owner. He has specifically known the history of this machine for 8 or 9 years. During this period of time no one has been injured by it.

Subsequent to receipt of the transcript each party filed briefs and Complainant filed proposed Findings and Conclusions as well. Neither party filed reply briefs by the April 10th deadline.

DISCUSSION

Jurisdiction does not pose any problem here. Respondent's pro se answer does not deny jurisdiction. In addition, counsel for Respondent admits on the record (Transcript Vol. 2, pg 3) that Respondent is [*19] engaged in interstate commerce.

OCCURRENCE OF THE VIOLATION

The cited standard requires that the point of operation of machines whose operation exposes an employee to injury shall be guarded. It further requires that the guarding device 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. The machine in question here is covered by this general machine guarding standard since there are no specific standards applicable to this particular machine. Complainant alleges Respondent's failure to guard each of the three (3) separate points of operation on the machine while Respondent argues that the machine does not expose its operator to any danger and therefore need not be guarded.

The evidentiary description of the use and operation of this machine establishes that the operator stands in front of and within about 18 inches of the machine. He feeds the materials to be cut or punched into the machine with his hands but there is no showing of how close those hands approach the point of operation or even that they approach the danger point at all. One of Respondent's witnesses testifies that [*20] the operator holds the materials with one hand on each side of the danger area with the implication being that in this manner the hands do not come near the point of operation. Again there is no specific indication of distance of the hands from the danger area. In short, nothing in the record places the operator's hands in or specifically near the danger area. Admittedly there is enough space between the dies when they are open (about 2 inches) to insert a hand but again no showing of any specific reason why a hand should be inserted or even how one could be inadvertently placed in danger. The operator does not even have to reach into the machine to retrieve pieces of severed material. The punch has a collar around it that protects it in such a way that a person would have to deliberately place his finger on top of the collar in order to place it in danger. In summary -- there is not a single shred of evidence that places any part of the operator's body in the point of operation danger area at any time during the use of this machine. Furthermore, there is no showing of any need or reason for the operator's hands to approach that area nor is there any showing of how any [*21] part of the operator's body might inadvertently enter the danger area.

In accordance with the foregoing discussion it is concluded that Complainant has not established the existence of any violation of the safety standard found at 29 CFR 1910.212(a)(3)(ii) with respect to the Bateman Angle Iron Cutter as alleged in the Citation for Serious Violation and in the complaint. Accordingly Respondent's position is sustained, the Citation is VACATED, and the complaint is dismissed.

Based upon the evidence adduced and after full consideration of the briefs and submissions of the parties, we make the following:

FINDINGS OF FACT

1. At all times material hereto Respondent, A & M Sheet Metal, Inc., maintained a place of business and employment at 2331 South Fawcett Avenue, P.O. Box 919, Tacoma, Washington where Respondent operated a sheet metal shop employing 17 employees. Respondent produces, distributes, installs and sells sheet metal, duct work and other products which move in interstate commerce. Respondent's business affects interstate commerce. (File-Complaint, Articles I and II, Answer and Transcript, Vol. 2, pgs 3 and 49.)

2. On August 3, 1973 a Compliance Safety and [*22] Health Officer (CSHO) inspected Respondent's worksite at Tacoma, Washington. The inspection was fully and properly conducted in accordance with the requirements of the Act. (Transcript Vol. 2 pgs 20-22.)

3. As a result of the August 3rd inspection of Respondent's workplace Citation Number 1 (Non-Serious) (5 Items) and Citation Number 2 (Serious) (1 Item) was issued to Respondent on August 20th alleging violations of 6 specific safety and health standards. On the same date a Notification of Proposed Penalties proposing the assessment of penalties of $0 in connection with the Non-Serious violations and $600 in connection with the Serious violation was mailed to Respondent. By letter timely filed on September 7th, Respondent contested Citation Number 2 (Serious Violation) in its entirety. (File.)

4. The Bateman Angle Iron Cutter involved here had been in use at Respondent's workplace for approximately 3 years before the inspection on August 3, 1973. The history of this particular machine reveals that no injury occurred in connection with its use over the last 8 or 9 years prior to the inspection. The machine was in use at Respondent's workplace an average of an hour per day [*23] during the two months previous to the inspection. The operator of the machine stands in front of and about 18 inches from it when he is operating it. He feeds the material to be cut or punched into the machine with his hands. The materials are held with one hand on cither side of the danger area. There is no evidence or showing as to how close his hands come to the danger area. There is a space of about 2 inches between the upper and lower dies when they are open. The punch has a collar around it that precludes the entry of a finger without a deliberate attempt to place it on top of the collar. The material being worked on in the machine cannot kick-back out of the machine and injure the operator. It was not fitted with a point of operation guard at the time of the inspection. (Transcript Vol. 2, pgs 10-12, 17-18, 24, 51-52, 59, 62-63, 65-67, and Exhibits 1 and A.)

5. Respondent fabricated a solid plastic wrap-around point of operation guard and installed it on the machine by September 20th, within the abatement period proposed by Complainant. (Transcript Vol. 2, pgs 57-60.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS [*24] OF LAW

1. At all times material hereto Respondent, A & M Sheet Metal, Inc., was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On September 7, 1973 Respondent filed a letter contesting Citation Number 2 (Serious Violation). Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission.

2. Under the conditions of use of the Bateman Angle Iron Cutter established by the evidence adduced herein, Respondent's failure to have it equipped with a point of operation guard at the time of the inspection of Respondent's workplace on August 3, 1973 was not a violation of the safety standard found at 29 CFR 1910.212(a)(3)(ii) since no part of an employee's body is shown to enter or even approach the danger area at the point of operation during the operating cycle.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is hereby

ORDERED that Citation Number 2 (Serious Violation) and the penalty proposed in connection therewith be, and the same hereby are, VACATED.