THE STACEY MANUFACTURING COMPANY

OSHRC Docket No. 76-1656

Occupational Safety and Health Review Commission

March 23, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

J. E. McArdle, Operation Mgr., The Stacey Manufacturing Co., for the emloyer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Review Commission Judge Louis G. LaVecchia is before the Commission for review under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge LaVeccbia affirmed two items of a citation issued by the Secretary of Labor ("Secretary") alleging that Respondent, Stacey Manufacturing Company ("Stacey"), violated section 5(a)(2) of the Act by failing to comply with the machine guarding standards at 29 C.F.R. 1910.212(a)(1) and 1910.212(a)(3)(ii). The judge characterized the two violations as serious and assessed penalties of $60 and $30. For the reasons that follow, we vacate item 5 of the citation, alleging noncompliance with 29 C.F.R. 1910.212(a)(1), but affirm item 11 of the citation alleging noncompliance with 29 C.F.R. 1910.212(a)(3)(ii).

I

Stacey is a manufacturer of steel products, including pressure vessels. It has no regular line [*2] of products but custom-makes its products to the purchaser's requirements. Item 5 of the citation alleges a violation of 29 C.F.R. 1910.212(a)(1) n1 in that Stacey failed to provide guarding on a Cincinnati shear that would prevent the operator's hand from accidental contact with the blades and the material hold-downs.

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n1 The standard states:

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 guards, two-hand tripping devices, electronic safety devices, etc.

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The shear is used to cut steel plate to the required size. A horizontal pipe and two parallel bars running the length of the bed of the shear separate the operator of the machine from the cutting blade. The distance between the surface [*3] on which the steel plates are positioned and the pipe is 1 inch. The distance between the pipe and middle bar is 1-3/8 inches, and between the middle and upper bars is 1-5/8 inches. Between the pipe and bars and the blade is a vertically-moving hold-down device, part of which consists of a round metal pad three inches in diameter that descends to hold the steel plates in position for cutting. The distance between the pipe and the hold-down device is 1-5/8 inches. Between the pipe and the blade, the distance is 5 1/4 inches. To operate the shear, the operator places a steel plate on the bed and slides it under the pipe and metal bars. The pipe moves upwards a little to let the steel plate pass underneath. By depressing a pedal, the operator activates the machine. First, the hold-down devices descend to hold the steel plate in place; then the blade descends and cuts the steel plate.

The compliance officer testified that despite the presence of the pipe and bars, it was possible for the operator to insert his hand or fingers into the spaces between the bars and between the bars and the pipe, where they could be crushed or severed by the descending hold-downs or blades. There [*4] was no evidence that any work operation required an employee to put any part of his body under or between the bars, nor is there a history of injuries on the cited shear.

The compliance officer also testified that the point of operation on the shear could be guarded with a piece of plexiglass or hardware cloth (wire screen) at minimal cost. Stacey's operation manager did not deny that plexiglass or hardware cloth could be used to guard the point of operation, but he testified that the use of plexiglass would impair the operator's vision because of dust accumulation. He also testified that the plexiglass would constantly have to be replaced because the steel plates, which are up to twelve feet square and may weigh over a ton, would bang the plexiglass and cause it to break. The plates must be lifted with a crane, and it is impossible to keep them from swinging and smashing a plexiglass guard.

Item 11 of the citation alleged a violation of 29 C.F.R. 1910.212(a)(3)(ii) n2 in that Stacey failed to guard the point of operation of a hole punch machine. A penalty of $30 was proposed by the Secretary. The punch had two dies, one above the other, and stationary hold-down devices to [*5] hold in place the material to be punched. The lower die had a 1/2 inch opening, which would be adjusted to 1-1/4 inches. The upper die would travel 1-1/4 inches downward to punch the metal resting on the lower die. During the normal operation of the hole punch, the operator would position both hands on the material to be punched and hold it in place before he stepped on the treadle. During this operation, the operator's hands would be located inches from the point of operation.

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n2 Section 1910.212(a)(3)(ii) provides:

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 provent the operator from having any part of his body in the danger zone during the operating cycle.

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Stacey's shop steward admitted that the operator could punch his hand or finger while the punch traveled downward to punch [*6] the metal, although he expressed the opinion that the likelihood of such an accident was small. The compliance officer testified that the point of operation on the hole punch could be guarded by a piece of plexiglass or hardware cloth at minimal cost.

The judge found Stacey in violation of both standards. He concluded that neither machine was properly guarded, and that the operators of both machines were exposed to injury.

In its brief on review, Stacey advances three reasons for the reversal of the judge's decision. First, it maintains that the pipe and bars, known in the industry as "awareness guarding," properly guarded the shear because awareness guarding is a "method of machine guarding" within the meaning of section 1910.212(a)(1). It also claims that it satisfied the requirements of ANSI B11.4-1973, Requirements for the Construction, Care, and Use of Shears, a standard published by the American National Standards Institute (ANSI). n3 Stacey contends that ANSI standards provide acceptable methods of complying because 41 C.F.R. 50-204.2(a), a regulation issued under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45, provided:

Every contractor shall protect the [*7] safety and health of his employees with the applicable standards, specifications and codes developed and published by the following organizations: . . . American National Standards, Inc.

This provision was amended on May 29, 1971. 36 Fed. Reg. 9868 (1971).

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n3 At the hearing Stacey's safety manager stated that its shear should have been cited under 29 C.F.R. 1910.212(a)(3)(ii) and that ANSI B11.4(1973) was, under the terms of that section, an "appropriate standard therefor."

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Second, Stacey contends that the evidence does not sustain a violation of section 1910.212(a)(3)(ii) as to the hole punch because the compliance officer never saw the hole punch in operation and there was no employee near the machine during the inspection. Stacey argues that in the absence of first-hand testimony from the compliance officer as to how the machine worked and the manner in which employees were exposed to injury, no accurate determination of whether the operator was exposed to injury can be made.

Third, Stacey contends that [*8] the Secretary's post-hearing brief was not timely filed with the judge. It contends that this failure to company with Commission Rule 76, 29 C.F.R. 2200.76, n4 provides sufficient grounds for vacation of the items in issue.

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n4 The rule provides:

Rule 76 Filing of briefs and proposed findings with the Judge; oral argument at the hearing.

Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Any party shall be entitled, upon request made before the close of the hearing, to file a brief, proposed findings of fact and conclusions of law, or both, with the Judge. The Judge may fix a reasonable period of time for such filing, but such initial period may not exceed 20 days from the receipt by the party of the transcript at the hearing.

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II

Stacey's reliance on ANSI B11.4-1973 raised the issue of whether the phrase "any appropriate standard therefor" in section 1910.212(a)(3)(ii) refers to [*9] ANSI standards, especially ANSI standards such as B11.4-1973, that were issued after the promulgation of section 1910.212. In orler to allow the parties an opportunity to address that issue, and other collateral issues, the Commission issued an order requesting briefs on those issues.

In response to the briefing order, the Secretary contends that ANSI standards are not incorporated by reference in section 1910.212. He claims that the terms, "appropriate standards" and "applicable specific standards," used in section 1910.212(a)(3)(ii) are synonomous. He cites Kroehler Mfg. Co., 78 OSAHRC 88/B9, 6 BNA OSHC 2045, 1978 CCH OSHD P23,110 (No. 76-2120, 1978). However, the Secretary also noted that because section 1910.212 is a performance standard, ANSI standards could serve as possible guarding guidelines. The Secretary stated that "OSHA will treat violations of certain standards as de minimus if the employer has complied with an updated material consensus standard which provides safety and health protection equal to or greater than the protection provided by the OSHA standard."

The Secretary suggests that 41 C.F.R. 50-204.5(c)(2), which is the source of 29 C.F.R. [*10] 1910.212(a)(3)(ii), indicates that the only standards of private organizations incorporated by reference into Part 1910 were specific national consensus standards either published in Part 1910 or explicitly incorporated by reference there. He argues that ANSI B11.4-1973 was not issued by ANSI until after the expiration of the two year period during which the Secretary was empowered to promulgate standards under section 6(a) of the Act and thus he could not have promulgated it as an OSHA standard unless the rulemaking requirements of section 6(b) were met. Stacey did not reply to the briefing order.

III

We first examine Stacey's claim that by complying with ANSI B11.4-1973, it provided "[o]ne or more methods of machine guarding . . . to protect the operator . . . from [machine] hazards . . ." within the meaning of section 1910.212(a)(1). Section 1910.212 is to be read as a whole and its provisions, particularly sections 1910.212(a)(1) and (a)(3)(ii), are to be construed together. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1833, 1978 CCH OSHD P22,909, p. 27,717 (No. 12523, 1978). See also Consolidated Aluminum Corp., 80 OSAHRC 125/A2, 9 BNA OSHC [*11] 1144, 1156, 1981 CCH OSHD P25,069, p. 30,976 (No. 77-1091, 1980), appeal filed, No. 81-3079 (6th Cir. February 16, 1981). Thus, although Stacey is alleged to have violated the more general, introductory requirement of section 1910.212(a)(1) rather than section 1910.212(a)(3)(ii), we will analogize to the latter provision in evaluating Stacey's argument.

Section 1910.212(a)(3)(ii) permits employers to comply with "any appropriate standards therefor" instead of providing point-of-operation guarding in conformance with that section's performance criterion. We have recently held that an "appropriate standard" within the meaning of section 1910.212(a)(3)(ii) means standards either published or incorporated by reference in 29 C.F.R. Part 1910. Inasmuch as sections 1910.212(a)(1) and (a)(3)(ii) are to be construed similarly, it follows that a "method of machine guarding" permitted by section 1910.212(a)(1) must be a method permitted by one of the standards published or incorporated by reference in 29 C.F.R. Part 1910, including the performance criteria of sections 1910.212(a)(1) and 1910.212(a)(3)(ii). [*12] Inasmuch as ANSI B11.4-1973 is neither published nor incorporated by reference in 29 C.F.R. Part 1910, we cannot conclude that providing guarding in accordance with ANSI B11.4-1973 necessarily means that one had provided "one or more methods of machine guarding . . . to protect the operator . . . from [machine] hazards . . . ."

In order to establish a violation of 29 C.F.R. 1910.212(a)(1), the Secretary must first prove the existence of a hazard. A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD P21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978). We conclude that the Secretary has failed to do so.

Stacey's employees could be injured by the hold downs and blade on the shear only if they put their hands under the bottom bar or through the other openings. That it is not impossible for an employee to put his hand under the hold-down or blade does not demonstrate that the employee was exposed to injury. See Rockwell International Corp., 81 OSAHRC 118/A2, 9 BNA OSHC 1092, 1097, 1980 CCH OSHD P24,979, p. 30,846 (No. 12470, 1980). Whether a machine presents a hazard must be determined by how the machine functions and how it [*13] is operated by the employees. See id. Here, the material to be cut is not hand-held, the employees have no reason to put their hands under the blade or the hold-downs, and their ability to inadvertently reach the blades and the hold-downs is greatly restricted by the pipe and the horizontal bars. Under these circumstances, we conclude that no hazard requiring further guarding under section 1910.212(a)(1) has been shown with respect to the shear. Item 5 is therefore vacated.

With respect to the hold punch, we reject Stacey's contention that the failure of the compliance officer to see the machine in operation or operated by one of Stacey's employees is fatal to the Secretary's case. The cited standard, section 1910.212(a)(3)(ii), requires that the point of operation of a machine be guarded if the operator is exposed to injury, and 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. Stacey's hole punch machine has no point of operation guard. The upper die descends during the operating cycle 1 1/4 inches to the lower die and there is nothing to prevent the operator's [*14] hands from entering the point of operation during the operating cycle. The operator's hands were inches from the point of operation and Stacey's shop steward testified that the operator could punch his hand or finger. There is abundant evidence to establish that employees were exposed to a point of operation hazard and that the point of operation was unguarded. n5

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n5 To the extent that Stacey's argument encompasses more an objection to the reliability of the compliance officer's testimony, we observe that it is not necessary for the compliance officer to observe employee exposure to a hazard. It is sufficient to established that employees have been or will be exposed, Circle Industries Corp., 76 OSAHRC 121/F4, 4 BNA OSHC 1724, 1976-77 CCH OSHD P21,119 (No. 4356, 1976); see General Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 2185 n.6, 1980 CCH OSHD P24,268, p. 29,552 n.6 (No. 15037, 1980), or that the machine is available for use in a defective condition. Harold Christiansen and Harold W. Christiansen d/b/a Palmer Christiansen Co., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975-76 CCH OSHD P20,517 (No. 3108, 1976).

[*15]

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Finally, Stacey contends that the two items in issue should be vacated because the Secretary failed to timely file his post-hearing brief. Stacey did not raise this issue before Judge LaVecchia. The issue is not jurisdictional. The Commission will generally not consider nonjurisdictional issues that have not been raised before the administrative law judge. Gulf Stevedore Corporation, 77 OSAHRC 135/E11, 5 BNA OSHC 1625, 1977-78 CCH OSHD P21,975 (No. 76-826, 1977). Moreover, Commission Rule 92(d), 29 C.F.R. 2200.92(d), states that "except in extraordinary circumstances, the Commission's power to review is limited to issues of law or fact raised by the parties in the proceedings below." There are no extraordinary circumstances here. In addition, we note that Stacey did not file a petition for review raising this issue.

IV

Stacey employs between 150 and 180 people, does not have a history of violations and has demonstrated good faith in attempting to guard its machines. With respect to the gravity of the violation, we note that one employee was exposed to the violation, and that the consequence [*16] of an accident would have been severe. We conclude that under section 17(j) of the Act, 29 U.S.C. 661(i), the judge's assessment of $30 was appropriate.

Accordingly, the judge's decision is reversed in part and affirmed in part. Item 5 of the citation, as it pertains to the Cincinnati shear, is vacated. Item 11 of the citation, alleging a failure to guard the hold punch, is affirmed. A penalty of $30 is assessed for item 11.

SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, Chairman, concurring in part and dissenting in part:

I agree with the majority that the Secretary has not shown that the point of operation of the shear presents a hazard and that item 5 of the citation should therefore be vacated. For this reason, it is unnecessary to consider at this time whether guarding that accords with ANSI B11.4-1973 is a "method . . . of machine guarding" within the meaning of 29 C.F.R. 1910.212(a)(1), and whether sections 1910.212(a)(1) and (a)(3)(ii) should be read together. Accordingly, I do not join in the majority's discussion and resolution of those issues.

With respect to the punch press at issue in item 11, I disagree with the majority's holding that Stacey [*17] failed to comply with section 1910.212(a)(3)(ii). The evidence does not demonstrate that the operator was exposed to injury within the meaning of that standard. The compliance officer speculated that there was a possibility of accidental operation when the dies on the punch were at their maximum separation. But there was no evidence to suggest that any work process on the hole punch would require an employee to put his hand or finger into the point of operation; nor was there testimony as to how close the operator's hand came to the point of operation. Although one of the exhibits shows the operator holding the stock with his hand near the point of operation, the operator stands to the side of the point of operation, grips the stock with both hands, and feeds it into the point of operation. The material hold-downs are between the operator and the point of operation at all times. Therefore, the operator is protected from the dies by the hold-downs and his placement of both hands on the stock. The majority relies on the testimony of Mr. Group, Stacey's shop steward, to support the proposition that an operator could be injured. However, Mr. Grout's testimony was wholly conjectural. [*18] Mr. Grout was responding to a hypothetical question that assumed that the operator would have his hands in the point of operation; n1 yet, this assumption is, as I have said, unsupported by the record. Indeed, Mr. Grout testified that in normal operation the machine was not hazardous.

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n1 The witness testified as follows:

Q. Mr. Grout, if one accidentally placed his hand under the punch before the material were inserted and also accidentally mashed the pedal, could one get his hand punched under the machine, his finger?

A. It's a possibility, but it seems very doubtful to me.

Q. But it can happen, can't it?

A. Anything can happen. I mean --

Q. Anything can happen?

A. -- on anything, I suppose.

Q. Let me go into that. But it can conceivably happen, can't it?

A. It's possible, yes.

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The Commission has held that he was a machine functions and the manner in which it is operated by employees must be considered in determining whether it presents a hazard. See Rockwell International Corp., 81 OSAHRC [*19] 118/A2, 9 BNA OSHC 1092, 1097, 1980 CCH OSHD P24,979, p. 30, 846 (No. 12470, 1980). There is nothing in the record to indicate that either the manner in which the machine functioned or the way it was operated exposed the operator to injury within the meaning of section 1910.212(a)(3)(ii). Accordingly, I would vacate item 11.