AKRON BRICK AND BLOCK COMPANY

OSHRC Docket No. 4859

Occupational Safety and Health Review Commission

January 14, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William S. Kloepfer, Assoc. Reg. Sol., USDOL

Mario J. Catani, Portland Cement Association, for the employer

Louis Stuber, Vice President of Production, Akron Brick & Block Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On August 21, 1974, Judge John S. Patton rendered his decision in this case vacating the Secretary of Labor's (complainant) citation and proposed penalty issued to Akron Brick and Block Company (respondent) for its alleged failure to comply with the standard at 29 CFR 1910.212(a)(1). The Secretary of Labor petitioned for review of the Judge's decision taking several exceptions to the Judge's decision. The case was ordered for review before the full Commission under section 12(j) of the Act on the following issues raised by the exceptions:

(1) Whether the Judge erred in finding that the "safety device" provided by respondent comported with the requirements of 29 CFR 1910.212(a)(1), and

(2) Whether the Judge erred in finding that respondent was not responsible if an employee failed to apply the "safety device" it supplied.

The Secretary of Labor has filed a brief with us in support [*2] of his position. Respondent has filed no brief with us.

For the reasons that follow, we reverse the decision of the Judge.

Respondent is engaged in manufacturing cement blocks and bricks. The production procedure is relatively simple. The cement blocks are formed by an apparatus known as the "block machine." From this machine, the finished blocks are picked up by a forklift truck, and conveyed to a position where they are accumulated on a rack. These racks are then transported by truck to a kiln where the blocks are cured until they reach about eighty percent of their strength. At this point, the racks of blocks are removed from the kiln and brought to a central area where the cement blocks are placed on a conveyor belt. At the end of the conveyor belt is a machine known as a "cuber" that stacks the finished blocks into cubes for shipping or storage. As the blocks come into the cuber, they are arranged automatically into patterns on an elevating table. Once a comlete layer of blocks is assembled, the table lowers and the blocks are squeezed together. The table is then retracted placing the blocks on top of a previous layer. When the machine has assembled enough layers [*3] to form a complete cube, the cube of cement blocks is placed on another conveyor belt and carried out to a waiting forklift truck.

The citation in this case centers on the operation of the "cuber." The machine is controlled automatically by a punched tape that issues its instructions through a "reading machine." Unless it malfunctions, the cuber does not require employee participation.

Occasionally, an accumulation of dust on the tape-reading machine will cause the cuber to misplace a block or fail to introduce one into a particular position on the table. When this happens, the cuber operator, after shutting down the machine by turning on the safety switch, n1 takes a block from the conveyor, puts it on the corner of the table and pushes it into place with a hook provided for the procedure. Respondent has issued warnings to highlight the danger of adding blocks or operating the cuber manually without turning on the safety switch. In addition, employees have been told always to use the metal hook in order to avoid placing themselves within the machine's point of operation. Employees found violating these rules are severely reprimanded.

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n1 The "safety switch" is a simple "on-off" switch that must be activated by the employee operator. When the switch is "on," the power to the machine is cut off and, naturally, when the switch is "off," the machine operates normally.

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Despite the well-intentioned safety procedure established by respondent, employee operators of the cuber can, and habitually do, walk into the corner of the machine, within the point of operation, during the machine's normal operating cycle in order to replace a missed block. On September 5, 1973, one employee operator, a 57-year old man with vast experience, was attempting to replace manually three missing concrete blocks when the machine activated and brushed his skull. It is not clear from the record whether the safety switch was on and malfunctioned, or whether the employee simply avoided its use.

The fatality prompted an inspecton by a compliance officer (CO) of the Secretary of Labor. Following the inspection, a citation for a "serious" violation of the Act was issued to respondent alleging its failure to comply with the [*5] standard at 29 CFR 1910.212(a)(1). n2 The Secretary proposed a penalty of $550 for the violation.

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n2 The standard reads as follows:

1910.212 General requirements for all machines (a) Machine guarding - (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, in going nip points, rotating parts, flying chips and sparks. Emamples of guarding methods are - barrier guards, two-hand tripping devices, electronic safety devices, etc.

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The citation was timely contested and the case was heard by Judge Patton on July 9, 1974. At the hearing, respondent's representative indicated that employees will disregard set safety procedures in the interest of expediency or when their experience lulls them into a sense of security such that they rely too heavily on their "sense of timing." In his testimony, the inspecting compliance officer noted that he had recommended to respondent [*6] a form of abatement involving the installation of a gate or barrier around the cuber that would automatically cut off power to the machine when the gate is opened to replace a missed block. In other words, the compliance officer endorsed the use of a "passive" safety device as a means to satisfy the requirements of the standard.

In his decision, the Judge vacated complainant's citation and proposed penalty finding that respondent provided and required the use of the type of safety device envisioned by the standard at issue. We do not agree.

The safety "device" used by respondent was a work rule relating to the use of the "safety switch" and "hook." The "safety switch," essentially a simple on-off switch, and the "hook" are merely tools to supplement the work rule. They are not methods of machine guarding contemplated by the standard at 29 CFR 1910.212(a)(1).

The standard at 29 CFR 1910.212(a)(1) prescribes that an employer provide "one or more methods of machine guarding . . . to protect the operator and other employees . . . form hazards . . . created by point of operation. . . ." The standard goes on to give examples of the type of guards contemplated, i.e., "barrier [*7] guards, two-hand tripping devices, electronic safety devices."

It is clear from the examples provided that the method of machine guarding should not be predominantly dependent upon human behavior. The plain purposes of the standard are to avoid dependence upon human behavior and to provide a safe environment for employees in the machine area from the hazards created by the machine's operation.

The standard recognizes that men do not discard their personal qualities when they go to work. Although men take to the job their intelligence and skills, they also take along their emotional makeup and any tendency to neglet any specified course of conduct. Cf. Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11 at 15 (D.C. Cir. 1940), cert. denied 310 U.S. 649 (1940). In this case, a gate or barrier that would automatically shut down the machine upon being opened, as mentioned by the compliance officer at the hearing, would have been an appropriate method of guarding.

Even if the "safety switch" and "hook" in combination with a work rule were enough to comply with the requirements of section 1910.212(a)(1), a violation of the standard would exist in this case [*8] because, despite the intent of respondent, employees do habitually walk into the corner of the machines within the point of operation during the machine's normal operation cycle in order to replace a missed block. The work rule bearing this practice therefore must be considered to be ineffectively applied. Respondent did not use any adequate method of machine guarding to protect the employees involved.

Concerning the penalty, the Commission has long recognized that the four penalty assessment criteria found in section 17(j) of the Act n3 "cannot always be given equal weight." Nacirema Operating Co., Inc., No. 4 (February 7, 1972). In this regard, we note that respondent's considerable good faith in attempting to formulate safe operating procedures outweighs the other not-so-favorable aspects of this case. Therefore, we find a penalty of $200 to be appropriate for this serious violation.

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n3 Section 17(j) of the Act reads as follows:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[*9]

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Accordingly, it is ORDERED that the decision of Judge John S. Patton be reversed; that complainant's citation for a serious violation of the Act for respondent's failure to comply with the standard at 29 CFR 1910.212(a)(1) be affirmed and that a penalty of $200 be assessed for the serious violation.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Patton correctly decided this case and his well-reasoned opinion, which is attached hereto as Appendix A, should be affirmed.

In reversing the finding below, Messrs. Barnako and Cleary have convicted this employer of an offense it was never charged with and had no opportunity to defend against.

Both the citation and the complaint described the respondent's alleged violation as a failure

"to provide one or more methods of machine guarding on the cement block cubing machines to protect the operator and other employees in the machine area from hazards."

Despite the fact that neither the charges nor the alleged violated standard n4 make any reference to "a gate or barrier that would automatically shut down the machine upon being opened," my colleagues find a [*10] violation because the respondent did not provide such safety equipment. I disagree.

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n4 See note 2, supra, for the wording of 29 C.F.R. 1910.212(a)(1).

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In considering a similarly vague standard, n5 the United States Court of Appeals for the First Circuit indicated in Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975), that the standard was enforceable only where the violative conduct is "unacceptable in light of the common understanding and experience of those working in the [respondent's] industry." There is no such evidence in this case, and the Judge's decision fully comports with that rule of law. Furthermore, the safety devices n6 used by the respondent are totally consistent with the general wording of 29 C.F.R. 1910.212(a)(1) and the examples given therein.

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n5 The regulation in issue here, 29 C.F.R. 1910.212(a)(1), reflects on its face that it is also "broadly worded" and does not provide "ascertainable standards" for the respondent's cuber. See also my recent comments in Secretary v. Boise Cascade Corp., 20 OSAHRC     (Docket No. 2049, October 31, 1975), on the vagueness of this regulation.

n6 The safety switch was more than just an "on - off switch." It was added to the machinery by the respondent as an additional safety device. The regular operational switches were located on the control panel adjacent to the cubing machine. The respondent instructed the employees to both turn off the panel switches and actuate the safety switch before approaching the moving parts of the machinery.

[*11]

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My colleagues find that the respondent "ineffectively applied" its work rule because "employees do habitually walk into the corner of the machines within the point of operation during the machine's normal operation cycle in order to replace a missed block." However, they conveniently fail to consider that this occurs after the safety switch has been actuated and that the metal hook is used to avoid entry into the machine's point of operation. Moreover, the evidence of record does not support the conclusion that the respondent's safety rules were ineffectively applied and habitually violated. To the contrary, as found by the Judge, the evidence establishes that the respondent repeatedly warned its employees to use the safety switch and metal hooks in placing blocks, that "this rule was enforced," and that violations had been very infrequent.

The Judge's findings are supported by the following testimony which is summarized in his opinion as follows:

"Both Mr. Catani, who was vice-president at the time of the inspection and at the time the fatality occurred and Mr. Louis Stuber, who was vice-president [*12] both before and after the time Mr. Catani occupied said position and who is now vice-president of the company testified that employees are constantly warned that they shall not place themselves underneath the drawer, (TR 43) are instructed not to go into the machine to clear any blockage even with the safety on but to use the metal rod and are instructed to never put a block on without first putting the safety on (TR 41, 42, 48, 52, 53). Mr. Stuber testified that employees are admonished very severely just for thinking about going into the machine and that he had never seen anyone do it while the machine was operating (TR 53). The employees are given a reprimand if the instructions are violated and if they go in the cube (TR 43). The rule is infrequently violated (TR 44, 53). The only prior injuries have been bruised fingers and knuckles (TR 53). Not only are there warnings and reprimands but employees are disciplined by three-day layoffs or other loss of pay for violating company rules. A further violation will result in discharge under the rules, although Mr. Catani testified that they had never been successful in discharging an employee under such circumstances because they [*13] always lost the arbitration which occurred under the union agreement (TR 68). He stated that there were very infrequent violations of the rules with reference to the cube machine and there were no instances of written reprimand having been given with reference to this particular violation (TR 68, 69)."

What evidence supports the conclusion that the respondent's safety rules were ineffectively applied and habitually violated? Messrs. Barnako and Cleary do not say. I submit that their conclusion cannot be supported and that the respondent did all that was required of it under the Act.

My colleagues seem to have forgotten that safety and health is a two-way street. Apparently, they will hold all employers liable for "any tendency [by an employee] to neglect any specific course of conduct." This makes employers the insurers of employee safety and health, something not intended by the Act. See, e.g., Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1144-1145 (9th Cir. 1975); National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1266 n. 36 (D.C. Cir. 1973). It also disregards the responsbility imposed on employees [*14] by law to "comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to" the Act. 29 U.S.C. 654(b).

APPENDIX A

DECISION AND ORDER

This case is before John S. Patton, the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus Akron Brick and Block Company, hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (80 Stat. 1604; 29 U.S.C. 651, et seq), hereinafter called the Act, and Occupational Safety and Health standards 29 CFR 1910.212(a)(1). The case was heard before the undersigned Judge in Cleveland, Ohio, on July 9, 1974. Mr. Dennis Dowdell, Jr., appeared as counsel for the complainant and Mr. Mario J. Catani, former vice-president of respondent, appeared on behalf of respondent. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

Standard 29 CFR 1910.212(a)(1) is as follows: "Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in [*15] the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc."

It was alleged in the complaint that the respondent, on or about September 12, 1973, at a work site on Mogadore Road in Akron, Ohio, failed to provide one or more methods of machine guarding on the cement block cubing machines to protect the operator and other employees in the machine area from hazards in violation of standard 29 CFR 1910.212(a)(1).

EVIDENCE IN THE CASE

The respondent in its answer admitted that respondent is an Ohio corporation maintaining a manufacturing plant at 3225 Mogadore Road, Akron, Ohio, where it is engaged in business of manufacturing cement block and bricks. It was further admitted that respondent uses or handles supplies that have been, are being, or will be shipped in interstate commerce and that respondent is and has been an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act. It was admitted that the respondent employs approximately 39 employees in and [*16] about said work place. It was also admitted that Local 348, Teamsters Union, is an authorized representative of its employees at said work place and work site. It was admitted that citation issued on September 28, 1973.

Mr. James J. Szakovits testified that he is a safety specialist for complainant and inspected said business of respondent on September 12, 1973. The inspection was made as a result of notification of a fatality (TR 7, 8). He stated respondent conducts its business in multiple separate buildings where cement block is produced (TR 11). The fatality occurred at the cubing machine (TR 11). Mr. Mario J. Catani who at the time of inspection was vice-president of respondent testified that Mr. Pero, an employee of the respondent, was killed as a result of a fractured skull incurred when he was pinched between a layer of block and the elevator table which places the blocks on the cubes (TR 50). According to Mr. Szakovits, after the block is processed, it is transferred on a series of conveyors to a cubing machine which takes the finished block and stacks it on pallets to be handled or shipped or stored in a storage area (TR 13). There are two cubing machines (TR 13). [*17] Mr. Catani testified that the block machine manufactures blocks. Finished blocks come out of the machine and are packed up by a forklift truck (TR 39). They are conveyed and accumulated on a rack. The rack is picked up by a lift truck and transported to a kiln where it is cured reaching 70 to 80 percent of its strength. It is then brought back to the same rack conveying equipement and automatically taken off the rack and transported on conveyors to a machine called a pallet stripper. It is then taken off of the steel pallet upon which it was manufactured and carried by conveyors to a cuber. When the blocks come to the cuber they are accumulated and arranged in patterns on an elevating table which goes up and down. As each layer is assembled, the table automatically lowers and the blocks are squeezed together and the table retracted so the blocks are placed on top of a previous layer or on top of a wood pallet or some other means of handling the blocks. After a complete cube is made, the block cube is transported on a powered conveyor on the outside of the builiding where it is picked up with another forklift truck. There are three lines performing these tasks, one line being [*18] slightly different in that the cubing operation is on a different type of machine making the process different (TR 39, 40). The machine where the fatality occurred is a wholly automatic cubing machine. In other words it is not controlled by an employee unless there is somekind of malfunction (TR 40, 41). The arrangement of the blocks in the cube is predetermined by a punched tape which is read on a tape reading machine. Occasionally the tape reading machine will get dust in it or some other malfunction will occur and the blocks will not meter into the cuber accurately or in accordance with the predetermined pattern. When this happens, it is necessary to adjust the position of the blocks inside the machine (TR 41). There is a control panel located adjacent to the cubing machine. This is an enclosed panel furnished by the manufacturer. In addition to the control panel there is a safety switch which was added by the respondent. This switch would shut the machine off should a malfunction occur and should a man be required to make an adjustment of the block (TR 41). It was admitted that there was no guard placed on the machine in front of the machine to prevent an employee walking [*19] into the machine (TR 47). If a block is missing an employee goes to the conveyor where the blocks are being conveyed to the cuber and takes the block off of the conveyor and shuts the machine down by turning the safety on. After the machine is shut down, the employee takes the block off the conveyor and puts it in a corner of the cube and pushes it in place with the hook (TR 47, 48). An employee will go in and place the block on the corner of the cube, takes the hook and pushes others to the back of the cube and places the block on the corner (TR 48). When the machine misses he has to physically walk into the corner of the machine (TR 48). Both Mr. Catani, who was vice-president at the time of the inspection and at the time the fatality occurred and Mr. Louis Stuber, who was vice-president both before and after the time Mr. Catani occupied said position and who is now vice-president of the company testified that employees are constantly warned that they shall not place themselves underneath the drawer, (TR 43) are instructed not to go into the machine to clear any blockage even with the safety on but to use the metal rod and are instructed to never put a block on without first [*20] putting the safety on (TR 41, 42, 48, 52, 53). Mr. Stuber testified that employees are admonished very severely just for thinking about going into the machine and that he had never seen anyone do it while the machine was operating (TR 53). The employees are given a reprimand if the instructions are violated and if they go in the cube (TR 43). The rule is infrequently violated (TR 44, 53). The only prior injuries have been bruised fingers and knuckles (TR 53). Not only are there warnings and reprimands but employees are disciplined by three-day layoffs or other loss of pay for violating company rules. A further violation will result in discharge under the rules, although Mr. Catani testified that they had never been successful in discharging an employee under such circumstances because they always lost the arbitration which occurred under the union agreement (TR 68). He stated that there were very infrequent violations of the rules with reference to the cube machine and there were no instances of written reprimand having been given with reference to this particular violation (TR 68, 69). He stated that the deceased employee was experienced and familiar with the machinery (TR [*21] 69, 70). Mr. Szakovits testified that at the time of the fatality the switch was in an off position, indicating that the machine should not function (TR 15). Said witness testified that if a block was missing an employee would have to reach into the skid exposing any portion of his body to the elevator which might come down and that this constituted a serious hazard (TR 28). He stated that at the closing conference he recommended a gate or guard on each open side of each cubing maching whereby if the gate were opened it would automatically shut off the equipment until the gate was reclosed and the control switch activated at the control panel for each cubing machine (TR 34).

EVALUATION OF THE EVIDENCE

It will be noticed that the standard does not required a particular type of machine guarding but "one or more methods of machine guarding shall be provided." Examples given as guarding methods are "barrier guards, two-hand tripping devices, electronic safety devices, etc." The complainant objects that no barrier guards were provided. The facts are substantially undisputed there were no barrier guards. The testimony, however, is to the effect that safety devices were provided [*22] and although Mr. Szakovits testified that at the time of the accident the safety switch was on, the safety switches are supposed to make it impossible for the machine to operate when the safety switch is applied. The record does not indicate the source of Mr. Szakovits information in this regard and there is no contention that he was present at the time of the accident. If there was a breakdown in the safety device mechanism there is no evidence to indicate that it had previously occurred or that the respondent had been negligent in maintaining the safety device or that the respondent could have in any way have been expected to know that there was a defect. This Judge is further of the opinion that said testimony of the compliainant's witness without any indication of the source of his knowledge does not establish that the safety switch was on at the time of the accident.

If the respondent's employee failed to apply the safety switch, in the opinion of this Judge, said action cannot be held to the respondent's charge. The undisputed testimony is to the effect that the respondent gave repeated warning to its employees that they should never attempt to put a block on the machine [*23] without the safety device being on and that they should not walk into the machine but should reach with a hook to place the blocks where they were to go. Apparently this rule was enforced and if it was violated there would be severe reprimand. The violations had apparently been very infrequent and there had been no prior severe injury in working on said machine. The rules call for suspension in the event of violation and repeated violations were to result in discharge. Apparently reprimands had been made but no written reprimand had ever been given to an employee for this precise type of violation. It would appear that the respondent did use the safety precautions required by the standard. A barrier guard is not the only way in which the standards may be complied with but safety devices are one of the suggested means whereby the requirements of the standard may be met. The respondent did use safety devices. The fact that the complainant now takes the position that barrier guards would have been preferable to safety devices does not alter the fact that safety devices are stated by the standard to be a proper means of protecting the employees. To now hold that because a fatality [*24] resulted a means suggested by the standard is improper and some other means suggested by the standard should have been applied and the respondent should be penalized would be to make an ex post facto change in the law by judicial construction and would be to do violence to the plain language of the standard. Under these circumstances, the complainant has failed to establish that said standard has been violated and the citation and complaint must be dismissed.

FINDINGS OF FACT

1. Respondent is an Ohio corporation engaged in business of manufacturing cement blocks and bricks.

2. At all times relevant to this cause, respondent employed approximately 39 employees who were engaged in the handling, using or otherwise working on cement mortar and other supplies which were shipped from states other than Ohio or intended for shipment to points outside Ohio.

3. Respondent purchased, used or handled supplies that had been or were being or would be shipped in interstate commerce.

4. The concrete blocks are placed in a cuber on an elevating table that goes up and down. The blocks are squeezed together and the table retracts.

5. The respondent has a hook to enable the employees [*25] to place blocks in the cuber without walking into the cuber and the employer maintains a switch which will make the machine inoperative while blocks are being placed on it.

6. The respondent has repeatedly warned employees not to walk into the cuber and not to place blocks on the cuber without first applying the switch.

7. The respondent's rules provide for reprimand, suspension and ultimate discharge in the event of failure to abide by the rules.

8. The respondent has repeatedly warned its employees not to go in the cuber or not to put blocks on without applying the switch.

9. On or about September 12, 1973, an employee went into the cuber and his head was crushed as a result of the operation of the cubing machine.

10. The evidence does not establish whether the switch was applied.

11. Said employee was an experienced employee.

12. There was no guard barrier in front of said machine.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business which affects interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. Respondent provided a safety device and required the use of same and therefore did not violate section 5(a)(2) [*26] of the Act or standard 29 CFR 1910.212(a)(1).

ORDER

It is therefore Ordered that:

The respondent has not violated section 5(a)(2) of the Act of standard 29 CFR 1910.212(a)(1).

The citation and complaint alleging violation of section 5(a)(2) of the Act and of standard 29 CFR 1910.212(a)(1) be and the same hereby are dismissed.

Dated this 21 day of August, 1974.

JOHN S. PATTON, Judge, OSHRC