SHEET METAL SPECIALTY COMPANY

OSHRC Docket No. 5022

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: In this matter the administrative law judge vacated a citation alleging that Respondent was in non-serious violation of the Occupational Safety and Health Act (29 U.S.C. 651, et seq. ) because it failed to guard the point of operation of a "Chicago" press brake as is required by 29 C.F.R. 1910.212(a)(3)(ii).   He predicated his determination on alternative grounds.   First, he concluded that the cited standard does not apply to press brakes for the reasons given by Judge Kennedy in Irvington Moore, Dkt. No. 3116 (1974) (review directed, January 24, 1974).   Second, based on Judge Brenton's decision in Garrison & Associates, Inc., (1974) (review directed, April 12, 1974), he determined that in a custom or job shop it is impossible to guard the point of operation of a press brake. We reverse.

As to his first reason, we have determined that the cited standard requires point of operation guards on press brakes. Irvington Moore, supra, (Rev. Com'n., April, 1975).   Our decision on that point is controlling in this case.

As to his second reason the facts are as follows.   [*2]   Respondent operates a small sheet metal fabrication shop in Virginia Beach, Virginia.   It uses a Chicago press brake to cold form metal sheets of various sizes.   When it was inspected the Secretary's compliance officer saw the brake being used to form metal ducts. To this end, the brake operator and his helper positioned a sheet in one die and held it with their hands during the forming operation.   The point of operation was not guarded, and the compliance officer testified that each employee had one hand located within 12 inches of the point of operation. Respondent's representative said the helper would have one hand within 6-8 inches of the point of operation.

  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. Indeed, Respondent's concern in this case is not with respect to whether it violated the standard nor was it concerned about the proposed penalty. Rather, as its representative said it wanted to know what "a sheet metal shop [can] do to protect its employees' hands in the case of a press brake."

As to the question thus presented, the Secretary's evidence among other [*3]   things shows that barrier guards, two handed trip devices, and a magnetic system all individually provide point of operation guarding. Respondent's representative took the stand on Respondent's behalf and was cross-examined on the question, as follows:

Q.   Do you think it's possible that you could design some system where the operator could keep his hands off the metal while the ram was being used?

A.   It could be done, yes.

Q.   Could you use that in conjunction with the two-hand trip?

A.   It could be done.

When questioned by the judge on whether any of the guards listed by ANSI's n1 B11.3-1973 standard for press brakes are feasible in Respondent's operation, it's representative answered as follows:

A.   I would say yes, Your Honor, feasible, but it would have to be removed for the next operation.

Q.   For instance, tell me one that is feasible.

A.   Well, this barrier guard could be used.   But in some of the operations that we have, and this is true in all of the duct work, you have bends that are made more than one time.   So that means that that guard would have to come off in order to make the next bend in order to give you shaped bends.

Other cross examination developed [*4]   the fact that work rests were also feasible but might involve some inconvenience for the operator.

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n1 ANSI means the American National Standards Institute.

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In view of this evidence there can be no doubt that compliance is possible.   Indeed, as Respondent's own words show, some methods are not even inconvenient and others are merely inconvenient   but not impossible.   Accordingly, it was error to vacate on the ground of impossibility of compliance.

Turning now to the penalty matter, we note that Respondent does not seriously contest.   The Secretary proposed $40, and the amount appears appropriate on the evidence.

Accordingly, the citation for violation of 29 C.F.R. 1910.212(a)(3)(ii) is affirmed, and a penalty of $40 is assessed.   It is so ORDERED.  

CONCURBY: CLEARY

CONCUR:

  CLEARY, COMMISSIONER, concurring: I concur in the finding that the standard published at 29 CFR §   1910.212(a)(3)(ii) is applicable to respondent's press brakes on the basis of my concurring opinion in Irvington Moore, supra, where I held that [*5]   29 CFR §   1910.217 is not a "standard" insofar as press brakes are concerned.   Also, 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.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: The decision below should be affirmed on the grounds that respondent cannot be found in violation of the general standard 29 C.F.R. §   1910.212(a)(3)(ii) when the specific standard codified at 29 C.F.R. §   1910.217(a)(5) applies. n2 See my dissenting opinions in Secretary v. Irvington Moore, 16 OSAHRC 608 (1975), and Secretary v. Gem-Top Manufacturing, Inc., 16 OSAHRC 591 (1975).

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n2 29 C.F.R. §   1910.5(c)(1) mandates that "[i]f a particular standard is specifically applicable to a condition . . . operation, or process, it shall prevail over any different general standard which might otherwise be applicable . . ."

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Additionally, the court below correctly concluded that respondent proved that compliance with §   1910.212(a)(3)(ii) would all but half its operations.   I therefore also disagree with the Commission's finding in regards thereto.

No question exists that point of operation guards on press brakes are feasible where work done thereon involves an assembly   line type production using the same size metal sheet. That, however, is not the case here.

Respondent uses a Chicago press brake to form metal sheets of various sizes.   In response to a question about a point of operation guard's applicability to this type of production, complainant's area director stated the following:

Q. . . . [I]s it not true that for the various types of guarding you have gone through . . . that these are for repetitious type forming of metal?

A. . . .   I will state, concede to your argument that there are some operations of the press brake that the barrier guard may be impractial, that you would not be able to perform an operation that was required and desired with using that device.

In reference to whether ANSI's B11.3-1973 [*7]   standard for press brakes indicated that guards were feasible in respondent's operation, the following conclusion was made:

Q. . . . [T]his standard . . . does refer to times when various point of operation guarding would not be practical . . .; is that correct?

A.   It does state that there are jobs that at the point of operation of guarding as described in there, that are not effective, yes, sir.

Q.   Do you agree that for the particular press that they are talking about here today, there may be operations of that press where the guarding techniques you have described are not practical?

A.   I would assume so, yes, sir.

To prove feasibility, the lead opinion quotes respondent's representative as concluding that guards would be "feasible, but it would have to be removed for the next operation." This is precisely why guards are not feasible here.

To implement point of operation guards would require removal after the processing of a particular size of sheet. This would severely disrupt production, and when this occurs, compliance with a standard is not mandatory.   See Secretary v. La Sala Contracting Company, Inc., 2 OSAHRC 976, 980 (1973).

As Commissioner Van Namee stated [*8]   in Secretary v. Universal Sheet Metal Corporation, 9 OSAHRC 742, 743 (1974), if ". . . it appears [compliance] . . . would have made it very difficult if not impossible for employees to perform [the work] . . ." (emphasis added),   the affirmative defense of impossibility of compliance has been met. n3

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n3 For other decisions discussing the defense of impossibility of performance, see Secretary v. J.H. Baxter Company, 4 OSAHRC 496, 506 (1973); Secretary v. W.C. Sivers Company, 8 OSAHRC 480, 488 (1974); Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245, 246 (1974).

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I believe the evidence indicates that respondent has sustained that burden.

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: This is a proceeding pursuant to Section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter the Act), wherein the Respondent has contested the citation for an alleged nonserious violation of the standard cited as item No. 6, and found at 29 C.F.R.   [*9]   1910.212(a)(1) [amended at trial without objection to 1910.212(a)(3)(ii)].   The citation for nonserious violations cited as items No. 1 through 5 and 7 through 9 with penalty of $155.00 were not contested and have become the final order of the Review Commission.

On August 1, 1973 the complainant inspected the workplace of Respondent, a sheetmetal fabrication shop in Virginia Beach, Virginia.   A citation was issued September 14, 1973 and amended September 28, 1973, alleging 9 nonserious violations and Respondent contested item 6 alleging:

The Chicago Press Brake located in the center of the shop was not provided with one or more methods of guarding to protect the operator and other employees from such hazards as those created by point of operation.

The cited standard and the standard as amended provide

§   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, ingoing nip points, rotating parts, flying chips and sparks.   Examples of guarding methods are -- barrier [*10]   guards, two-hand tripping devices, electronic safety devices, etc.

  (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.

(iii) Special handtools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone.   Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided.

In its notice of contest of October 18, 1973, Respondent stated:

We wish to contest the alleged violation #6 1910.212(a)(1).

At the time of inspection we had the use of hand feeding tools.   We also posted a Hand Hazard sign (meeting OSHA standards).

I am enclosing a copy of our [*11]   correspondence with Drees[sic] & Krump, manufacturers of our machine, stating their recommendations for point of operation guarding.

We feel that we are in compliance with the safety recommendations regarding our specific operations.

Attached to the Notice of Contest was a copy of a letter from Dreis & Drump, dated October 1, 1973, in part, as follows:

Per our telephone discussion, I am enclosing a copy of the ANSI B11.3-1973 Standards for Power Press Brakes. Although there is no specific standard for the SBA-104, the OSHA Section 1910.212 covers guarding for all types of machines.

We do not make or even recommend any brand name guards or methods because the guarding required can only be determined after viewing a specific operation.   Difficult operations may require different types of guarding. This is the reason it is the responsibility of the employeer [sic] to determine.

In its Answer to the Secretary's Complaint Respondent stated:

We deny the violation . . . and by way of explanation refer to the American National Standard (ANSI B11-3-1973) which states in E6.1.1 On most generalpurpose press brakes, (a) and (b) of 6.1.1(1) are not normally possible and (a) and (b) of   [*12]   6.1.1(2) will suffice.   We had in operation and use at the time of the alleged violation the hand tool referred to in 6.1.1(2).

  The parties stipulated Respondent was engaged in a business affecting commerce.

THE EVIDENCE

The Secretary's Compliance Officer, Mr. Joseph N. Cleary testified that he had been employed by the complainant for approximately one year and that prior to that he was actively employed as a sheet metal worker from 1935 to 1951 and was a sheet metal union official from 1951 until his present employment.   On August 1, 1973 he inspected Respondent's sheet metal shop and observed a "Chicago Press Brake" in the center of the shop, being operated by two men.   There was no point of operation guarding. The machine was operated by a foot pedal which had a guard over it.   This machine is used to bend sheet metal. A sheet of the metal to be formed is placed between the male and female dies, which gaped 3-4 inches and the punch(male) is dropped on the point to be creased, which is then pushed down into the trough (female) forming the crease or bend in the metal. At the time of inspection 2 employees were inserting 8 foot long sheets into the press to form ductwork.   [*13]   There were 2 chains hanging below the press (Ex. C-1) but he did not recognize what was hanging from them.   In this operation he observed the 2 men were facing each other and holding the sheet metal, using one hand to steady the notched end against a pin and the other hand being away from the press to steady the sheet of metal.

He stated that he had worked as a halper on such a machine but because it was an expersive and hazardous machine there were generally only 1 or 2 men in a shop who operated it and he had never operated it.

Upon recall Mr. Cleary stated the operator of the Press can inch the forming die (descending) to close proximity to the bend at which point he puts the press into full operation and it moves very fast.   He stated the metal duct was an "L" shaped piece 12 inches by 24-30 inches by 8 feet and 2 of these would be joined to form the duct. He stated it would be hard to accidentally trip the foot pedal when it had a guard on it and he believed press brakes had been known to repeat.

  Mr. Charles A. Straw, District Supervisor of the Norfolk District OSHA office of the Labor Department, testified that the ANSI standard B11-3-1973 had not been adopted [*14]   as a Labor Department standard.   However he described various guarding devices referred to in B11-3-1973.   He described a barrier guard shown on page 744 of the Sixth Edition of the Accident Prevention Manual issued by the National Safety Council although he conceded this was not always practicable.   He also described a device shown in a publication of the American Actuator Corp. (Ex. C-4) used in conjunction with a two hand switch.   He said the magnetic device was designed so that you can form and shape very small pieces of material without the necessity of holding it with the hands.

Mr. Lumsden, a partner in Respondent business, testified that his primary purpose in contesting this item in the citation was to find out from OSHA how to guard the press brake. He felt that guarding was impossible where a press brake was used to form duct work made from large sheets of metal. For small jobs he indicated a hand operated machine was used and that guarding for other than repetitious operations was out of the question.

In response to my questions Mr. Lumsden stated that he felt barricade guarding was feasible but in his operation it would have to be removed after each operation   [*15]   and in making ducts it would have to be removed to make the second bend. A sensing device was not feasible because a flange used in the bending operation would cut off the light beam.

The press brake in his shop was used about 50% of the working hours.   He had 35 employees with 18 of them in the shop. He had had this machine for 7 years and in all that time the dies had been gaped at 2 inches from the male die to the bottom of the female die. However, the gap was adjustable from 1/4 inch to 4-1/2 inches.   He had never had any accidents with this machine. The chains shown on Ex. C-1 and described by Mr. Cleary held two tongs used for placing small items in the press.   In describing the operation of the machine he stated the operator has a piece of sheet metal with a V notch at each end indicating the line of crease.   The press brake has a pin sitting up from the female die that one V notch fits into, positioning it exactly where the operator wants it.   He then adjusts the other notch to a pin at his end.   Thus the helper's hand was no nearer than 6-8 inches from the die.

DISCUSSION

The first consideration in resolving the issue presented here is to categorize the machine [*16]   we are dealing with.

29 CFR §   1910.211 Definitions

(d) As used in §   1910.217 unless the context clearly requires otherwise, the following power press terms shall have the meaning prescribed in this paragraph.

(46) "Press" means a mechanically powered machine that . . . forms . . . metal . . . by means of . . . shaping or combination dies attached to slides. A press consists of a stationary bed or anvil, and a slide (or slides) having a controlled reciprocating motion toward and away from the bed surface, the slide being guided in a definite path by the frame of the press.

Thus it is clear from the evidence that the machine cited is a press as defined in §   1910.211(d)(46). n1 §   1910.217 applies to mechanical power presses.   However subsection (a)(5) thereof excludes press brakes from the requirements of §   1910.217.   In Isaacson, supra, [the Judge's decision is now the final order of the Review Commission] it was determined that because of the exclusion feature of §   217(a)(5) the provisions of §   212 were applicable. n2 In an earlier decision; Tennsco, Docket No. 1895, final order September 10, 1973, the same conclusion had been reached.

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n1 In the decisions in Isaacson, Docket No. 1906, November 12, 1974; Central Steel & Tank Co., Docket No. 2346, March 5, 1974; Collator Corp., Docket No. 2004, March 12, 1974, and Garrison and Associates, Inc., Docket No. 4235, March 13, 1974, the same machine was involved and considered a machanical power press.

n2 It is noted that the press brake there also was a punch and it was recognized that guarding the long horizontal area where the upper die comes in contact with the lower die is more difficult than guarding the punch.

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In Irvington Moore, Division of U.S. Natural Resources, Inc., Docket No. 3116, January 15, 1974, it was held that "the Secretary has not established that Section 212(a)(3)(ii) applies to Respondent's Cincinnati press brake . . ." [Review of this decision was directed on the issue of whether there was error in the determination   that the cited standard did not apply to press brakes.]

In Trojan Steel Company, Docket No. 2885, January 18, 1974, it was held that mechanical power presses are specifically covered [*18]   by Section 217(c)(1) and that this section preempts the general standard at Section 212(a)(3)(ii).   [Review of this decision was directed on the issue of whether the Judge erred in holding there was no violation of 29 CFR 1910.212(a)(3)(ii).]

In Central Steel & Tank Company, supra and Collator Corp., supra it was concluded that Section 212(a)(3)(ii) was not applicable to power presses since such a press was covered by a specific standard that excluded them.   Central Steel and Tank Company has been directed for review on several issues including whether the press brakes were in compliance with Section 212(a)(3)(ii).   Collator Corp. has been directed for review on the issue of whether the Judge erred.

It is readily apparent from the foregoing that there is ambivalence among the Judges of the Commission as to the standard applicable to press brakes. There can be no argument from the nature of press brakes that they are the machines covered by the standard at 29 CFR 1910.217.   The only question is whether the exemption of press brakes from the requirements of §   217 then made the provisions of §   212 applicable.   This point is thoroughly covered by Judge Kennedy in   [*19]   Irvington Moore, Division of U.S. Natural Resources, Inc., supra, and while review has been directed on this issue, in the absence of a final Review Commission position, I am constrained to agree with his position contrary to the position in Tennsco, supra, and Isaacson, supra, both of which became final.   If we are not to follow §   1910.5(c) n3 the Secretary has no reason to promulgate specific   standards.   It is a relatively simple matter to provide a general standard requiring that the point of operation of all machines must be guarded, i.e., as in §   212.   However the Secretary obviously recognized, just as Judge Brenton in Garrison, supra, n4 that with a press brake operated in a custom or job shop and not in a repetitive manner or production environment that compliance may be impossible.   Such is the case here.   Further the method of material handling effectively eliminates any hazard to the hands.   Thus for a variety of reasons, each of which standing alone is considered an adequate basis for disposing of the issue, the citation and proposed penalty are vacated.

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n3 If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.   For example, §   1501.23(c)(3) of this title prescribes personal protective equipment for certain ship repairmen working in specified areas.   Such a standard shall apply, and shall not be deemed modified nor superseded by any different general standard whose provisions might otherwise be applicable, to the ship repairmen working in the areas specified in §   1915.23(c)(3)."

n4 Review has been directed of this decision on the question of whether the trial judge committed reversible error in concluding that Respondent had established the defense of impossibility of compliance under the circumstances of this case.

  [*20]  

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FINDINGS OF FACT

1.   A Chicago press brake is a "Mechanical Power Press."

2.   The press brake as operated by Respondent does not create an employee hazard.

3.   There is no currently recognized acceptable or economic way to guard the press brake point of operation for bending large pieces of metal, beyond the use of a guarded foot control.

CONCLUSIONS OF LAW

1.   The Occupational Safety and Health Review Commission has jurisdiction over the Respondent.

2.   The standard at 29 CFR 1910.212 is not applicable to press brakes.

3.   The Secretary has failed to prove noncompliance of any standard which may be specifically found applicable to press brakes.

4.   Respondent is not in violation of Section 5(a)(2) of the Act.

In view of the foregoing it is ORDERED that item No. 6 of the citation and the proposed penalty of $40.00 are vacated.