MRS PRINTING, INC.

OSHRC Docket No. 76-3113

Occupational Safety and Health Review Commission

October 13, 1978

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Richard T. Harding, Pres., MRS Printing, Incorporated, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On March 17, 1977, Administrative Law Judge Abraham Gold affirmed a citation which alleged that respondent, MRS Printing, Inc., had failed to comply with 29 CFR 1910.212(a)(3)(ii) n1 and had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). On April 18, 1977, former Commissioner Moran directed review of Judge Gold's decision. n2

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n1 The standard provides:

1910.212 General requirements for all machines.

(a) Machine guarding -

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(3) Point of operation guarding.

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(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.

n2 Although the direction for review raised the question of knowledge of the violative conditions, the respondent's brief on review does not discuss this question; also there is no compelling public interest in the resolution of the issue. Accordingly, we do not reach the issue raised in the direction, and we adopt without review the Judge's finding that the violation was of a "serious" nature. See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

[*2]

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The facts may be briefly stated. Respondent is a job printer and prints a newspaper. It uses a Lawson guillotine cutter with a 39-inch blade to cut paper. To operate the machine, the operator would pull up on a handle on the left side of the machine to disengage the clutch, and simultaneously push down on a handle on the right side to activate the blade. The controls were about three feet apart, and were located under the cutting surface. The standard cited requires that the point of operation be guarded by a device that is "so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle." During the inspection, an employee showed a compliance officer how he could trip the left lever with his left knee, leaving his left hand free while the blade was activated by his right hand. We therefore agree with Judge Gold that because the machine "could be operated with one hand free, and that hand could reach into the danger zone during the operating cycle . . . the point of operation of this cutter was inadequately guarded."

Respondent [*3] contends, however, that a tripping device was provided, and that it cannot be required to install different guarding devices if employees circumvent the first device provided. We disagree. The standard requires that a guarding device be designed and constructed to prevent the operator from having any part of his body in the danger zone during the operating cycle. To comply with the standard, an employer must install a guarding device that cannot be easily circumvented by his employees. See Long Manufacturing Company, N.C., Inc., 76 OSAHRC 50/D6, 4 BNA OSHC 1154, 1975-76 CCH OSHD P20,658 (No. 9994, 1976), aff'd, 554 F.2d 903 (8th Cir. 1977). Inasmuch as respondent does not claim that the use of such a guarding device is impossible, Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1836, 1978 CCH OSHD P22,909 (No. 12523, 1978), its argument is not well grounded. Its installation of an electronic guarding device after the inspection shows that further efforts at compliance were not impossible.

Respondent also argues that the portion of 1910.212(a)(3)(ii) under which it was cited does not apply here. That section states that "[t]he guarding device shall [*4] be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed" as to meet the above-stated performance criterion. Respondent contends that 1910.212(a)(1) and a New York State standard on machine guarding are "appropriate standards" within the meaning of 1910.212(a)(3)(ii), and that its two-hand tripping device was in conformity with those standards. n3 We disagree with respondent's view of the term "appropriate standards".

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n3 Respondent also contends that its two-hand tripping device complied with 1910.212(a)(1) and 1910.212(a)(2). Inasmuch as respondent has not been cited for noncompliance with these standards and their applicability would not pre-empt the application of the cited standard, we do not pass upon respondent's contention.

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The term "appropriate standards" in 1910.212(a)(3)(ii) refers to specifically applicable standards. Kroehler Mfg. Co., 78 OSAHRC    , 6 BNA OSHC    , 1978 CCH OSHD P    (No. 76-2120, [*5] 1978). Although 1910.212(a)(1) mentions two-hand tripping devices, that introductory standard is not more specifically applicable than 1910.212(a)(3)(ii) to point of operation hazards. Hughes Brothers, Inc., 6 OSHC at 1833. Moreover, to adopt respondent's view would mean that subsection (a)(3)(ii) would never apply. We decline to adopt such a view of 1910.212.

We also conclude, in light of the history of OSHA's machine guarding standard, that the New York State standard to which respondent alludes n4 is not one of the "appropriate standards" referred to in 1910.212(a)(3)(ii). The source for 1910.212(a)(3)(ii) is 41 CFR 50-204.5(c)(2), a regulation in effect under the Walsh-Healey Public Contracts Act. n5 On April 28, 1971, the effective date of the Occupational Safety and Health Act, the Walsh-Healey regulation stated that "[w]here existing standards prepared by organizations listed in 50-204.2 provide for point of operation guarding, such standards shall prevail." State organizations or bodies were not among the listed organizations. n6 The Secretary later changed the list of organizations in 50-204.2 to eliminate the reference to private safety and health [*6] standards-producing organizations in favor of a cross reference to the national consensus standards adopted in Subparts C through S of Part 1910, n7 and adopted the Walsh-Healey regulation as an OSHA standard. n8 The New York State standard is not within these subparts. Reading the OSHA standard in light of its antecedent and its history, we conclude that at no time did the Secretary intend that a New York State standard be an "appropriate standard" within the meaning of 1910.212(a)(3)(ii).

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n4 This standard was not offered into evidence at the hearing and its requirements are unknown to us. The Commission takes official notice that on June 30, 1975, New York State withdrew its state plan, 40 F.R. 27655, and therefore the State has no enforcement authority under section 18 of the Act, 29 U.S.C. 667.

n5 41 U.S.C. 35 et seq. See 1910.221.

n6 34 F.R. 7940, 7947 (1969).

n7 36 F.R. 9868 (1971). The Secretary's authority to make this amendment effective under the Occupational Safety and Health Act has not been questioned by respondent, and we therefore do not examine the matter. Central Steel & Tank Co., 75 OSAHRC 9/A2, 3 BNA OSHC 1711, 1975-76 CCH OSHD P20,172 (No. 2346, 1975).

n8 36 F.R. 10466, 10632 (1971). See our decision in Kroehler Mfg. Co., 78 OSAHRC    , 6 BNA OSHC    , 1978 CCH OSHD P    (No. 76-2120, 1978) for the text of these provisions and changes. Section 6(a) of the Act provides for the adoption of "established Federal standards" as standards effective under the Occupational Safety and Health Act. Sections 3(9) and 3(10) defines "national consensus standards" and "established Federal standards".

[*7]

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Accordingly, it is ORDERED that the Judge's decision is AFFIRMED.