PASS & SEYMOUR, Inc.

OSHRC Docket No. 76-4520

Occupational Safety and Health Review Commission

November 29, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

John Maddenn, Manager, Pass & Seymour, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Robert P. Weil is before us for review pursuant to a direction for review by Chairman Cleary under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. In that decision Judge Weil affirmed a violation of 29 C.F.R. 1910.212(a)(3)(ii) n1 issued to Respondent for its failure to provide point of operation guards for its 24 automatic molding machines. The judge assessed a $600 penalty. n2 We affirm.

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n1 As applicable, 29 C.F.R. 1910.212(a)(3)(ii) provides that:

"The point of operation of machines whose operation exposes an employee to injury shall be guarded. The guarding device . . . . 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 The inspection resulted in two citations, one serious citation with two items and proposed $600 penalties for each and one nonserious citation with 17 items and a total penalty of $90.00. All these citation items were uncontested and, thus, became final orders of the Commission except for the serious citation sub-item at issue and nonserious item number 14 which was withdrawn by the Secretary at the hearing.

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The facts are not in dispute. Respondent manufactures electrical wiring devices at its facility in Solvay, New York. The citation at issue involves part of Respondent's operation consisting of a battery of 24 automatic molding machines. The machines operate when a thermoset molding compound in powdered form, i.e., urea, melamine, or phenolic, is injected by air pressure into a hollow lower die. The upper die or ram then descends from a position five inches above the lower die and exerts a pressure of 3,000 pounds per square inch on the powder. The two dies are heated to a predetermined temperature ranging from 275 to 375 degrees. The heat is applied to the powder to effect a chemical change called curing. To impart the heat the dies remain fully closed for a "dwell" period of up to 4 1/3 minutes, depending upon the substance being molded. Following this process the ram, aided by "grippers," lifts the cured piece out of the lower die. Each machine is equipped with a horizontal ejector bar which measures twelve inches wide, projects about four inches from the front face of the machine and is approximately [*3] on the same level as the point of operation. The ejector bar sweeps backward and knocks the cured piece out of the ram to the rear of the machine where the piece is unloaded.

The point of operation of each machine is four and one half feet above the floor and its width is approximately twelve and one-half inches. The ejector bar is a minimum of 17 inches from the point of operation. If pushed toward the point of operation, the ejector bar causes the machine to stop. However, when the die is open an employee could get his hands between the dies. Additionally, it is possible to reach the point of operation during the operating cycle by reaching through a four inch opening between either side of the ejector bar and the framework of the machine. In either event, the machine would continue to operate unless the ejector bar was hit.

The machines at issue along with ten other machines and some auxiliary equipment are housed in a building approximately 60 by 110 feet. The machines are about seven feet high by four feet wide by four feet deep and immediately abut each other in rows separated by aisles approximately five feet wide. Access to the machine area is limited. Primarily, [*4] there are two machine tenders per shift, a shift foreman, a supervisor and an occasional make-up man who changes the dies and settings of the machines whenever a different operation is to be performed. Normal machine operation is automatic, and the machine tender is not required to put his hands anywhere near the point of operation during any portion of the cycle. During normal operation, the tender simply observes the operation of the machine. A malfunction from any source causes the machine to stop automatically, alerting the tender with a ringing bell and a signal light. A brass rod hangs in front of each machine and, according to Respondent's rules, it is the only method that may be used for clearing the machines. If it is necessary to move the machine through part of its cycle, the machine tender controls the machine by "jogging", i.e., operating the machine through its cycle in short intervals, until it is in a position for clearing. This process requires the simultaneous activation of two buttons on the front of the machine. Respondent's Manager of Manufacturing Engineering, Mr. Madden, testified that employees are specifically trained to keep their hands away from the [*5] point of operation and they are reminded of this rule by a warning plate on the machine. A tender is subject to disciplinary action if he clears a machine by hand instead of using the brass rod. Routine janitorial work is performed on Saturdays when the machines are shut down and allowed to cool for the period of one full shift. Mr. Madden testified that he could not recall any accidents or disciplinary action involving the machines in the 20 years he has been with Respondent.

Prior to the enactment of the Occupational Safety and Health Act of 1970, Respondent applied for and received a variance from the State of New York respecting these machines. According to Mr. Madden, the machines were in compliance with this variance and, when the Act went into effect, Respondent intended to apply to OSHA for a similar variance. n3 Respondent applied for such a variance after the alleged violation in this case occurred.

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n3 Pursuant to 6(d) of the Act, 29 U.S.C. 655(d), an employer may apply to the Secretary for a variance from any standard if it can demonstrate "that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard."

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Judge Weil concluded that Respondent violated the standard as alleged. Although observing that the normal operation of the machines presented little risk of an accident, the Judge nevertheless noted that it was possible for an employee to reach into the point of operation, and concluded that the machines exposed Respondent's employees to "injury which they might suffer due either to bad luck or bad judgment." The Judge also concluded that the standard was intended to protect against situations "in which there was an instant of bad luck or momentary failure to follow instructions." He further stated that the fact an accident had not yet occurred is not dispositive of whether there is a need for guarding. Citing, among other cases, Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864,870 (10th Cir. 1975), the Judge noted that "one purpose of the Act is to prevent the first accident." n4

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n4 In addition to requiring the Secretary to prove that the operation of the machines exposed employees to injury, the Judge imposed on the Secretary the burden of proving either that Respondent had actual notice of the protective measures required by the standard or that a reasonably prudent employer in the industry would have recognized that additional protection against the hazard was necessary. We do not agree that the Secretary's burden extends beyond proving that the operation of the machines exposed employees to injury. The standard explicitly states that if such a condition exists, the employer must guard the machines in such a way as to prevent employees from having any part of their bodies in the danger zone during the operating cycle. Thus, the standard itself clearly places employers on notice of the performance it requires, and there is no need to resort to criteria external to the standard to determine whether employers have adequate notice of the standard's requirements. See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978).

Thus, the Judge erred in placing an additional burden of proof on the Secretary. However, the Judge found that the Secretary satisfied his additional burden, so the error was harmless.

[*7]

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On review, Respondent argues that the manner in which the automatic molding machines operate in conjunction with the measures it has taken to protect its employees eliminates any possibility that the machines will injure its employees. Respondent points out that, during normal operations, the tender is not required to perform any duties on the machines, but simply to observe their operation. Furthermore, in the event of a malfunction requiring an employee's attention, a machine ceases operation and can only be operated through the simultaneous use of two "jog" buttons, thus occupying the employee's hands away from the point of operation. Respondent asserts that installation of a guard would be an "exercise in futility" because the tender would have to remove any guard in order to perform the necessary function of clearing a press that has malfunctioned. Respondent also points to other precautions it has taken against injury: supervisors and other employees are well trained in the operation of the machines, warning signs are attached to the machines, and tools for clearing the machines are secured [*8] to the machines to avoid being misplaced.

We conclude that Respondent violated the standard. During the times when a tender operates a machine to clear it, the employee stands directly in front of the machine within reach of the point of operation. After jogging the machine to position it for clearing, the tender is supposed to use a metal rod hanging by a chain from the machine to perform the clearing operation. Respondent recognized that this operation could, if not performed properly, subject the employee to being injured at the point of operation, as exemplified by the training and warnings it gave its operators to avoid reaching into the point of operation. During the periods of normal operation of the machines, a tender does not have any duties to perform that require him to place his hands near the point of operation. However, the tender does observe the operation while in the five-foot wide aisles between the rows of machines. Thus, the tender must come within a few feet of the point of operation, and there is nothing to prevent him from getting his hand in a point of operation should he accidentally stumble or attempt to perform some adjustment on a machine while it [*9] is operating. Respondent argues, however, that the precautions it took were sufficient to avoid the point of operation hazard.

We do not agree. The Commission has consistently held that the cited standard requires physical methods of guarding rather than methods of guarding that depend on human behavior. Hughes Brothers, Inc., supra note 4; Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1979 CCH OSHD P23,219 (No. 76-2419, 1978); MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD P23,102 (No. 76-3113, 1978); Akron Brick and Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1976-77 CCH OSHD P20,302 (No. 4859, 1976). As the judge observed, the standard is intended to protect against injury resulting from an instance of inattention or bad judgment as well as risks arising from the operation of a machine. Additionally, we note that section 1910.212 itself recognizes that the use of clearing tools, such as the brass rods that Respondent provided, cannot be used in lieu of a guarding device. Section 1910.212(a)(3)(iii) provides:

1910.212 General requirements for all machines

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(a) Machine guarding

* * * [*10]

(3) Point of operation guarding

* * *

(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.

Respondent also argues in its brief on review that installation of a guard would be an "exercise in futility" because a guard would have to be removed when a machine is being cleared. In essence, Respondent is raising the defense that compliance is impossible during the clearing operation. In order to establish this defense, Respondent would have to prove that (1) compliance was functionally impossible or would preclude performance of required work, and (2) that alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

Respondent has not established this defense. The basic defect in its argument is that there is no evidence of record establishing that a machine could not be cleared while effectively guarded; respondent simply asserts [*11] in its brief that a guard would have to be removed during clearing operations. In light of this evidentiary deficiency, Respondent's defense must fail. We also note that Respondent has not explained why a guard could not be interlocked in a manner similar to the ejector bar so that the machine could not operate unless the guard is in position.

Since the methods used by Respondent did not physically prevent a tender from placing his hand in the point of operation, and Respondent has not established an affirmative defense, we conclude that Respondent violated the standard. n5 The apparent absence of any recorded injuries caused by the machines does not lead us to a different conclusion. While having some probative value, the absence of injuries does not rebut the objective evidence of the existence of a hazard resulting from the operation of the molding machines. n6 Kroehler Manufacturing Co., 78 OSAHRC 88/B9, 6 BNA OSHC 2045, 1978 CCH OSHD P23,110 (No. 76-2120, 1978).

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n5 In its brief on review, Respondent asserts that an employee would only jog a machine with each of his hands on a separate button. Respondent thus appears to contend that its machines were equipped with an acceptable form of guarding: a two-hand tripping device. See Hughes Brothers, Inc., supra note 4. However, such a guarding method is only acceptable if installed in such a way that it cannot be easily circumvented by employees. MRS Printing Inc., supra; Long Manufacturing Co., N.C., 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). The record does not support the assertion in Respondent's brief that employees in fact used both hands to operate the controls, nor can we conclude that the controls were arranged so as to require two-hand operation. Thus, the existence of the dual buttons does not alter our conclusion that Respondent violated the standard.

n6 Commissioner Barnako would find a violation only as to occasions when a tender operates a machine manually in order to clear it. He would not find a violation as to the normal, automatic operation of a machine. In his view, the presence of the ejector bar in front of the small opening between the dies, as clearly depicted by the photographic evidence, makes it extremely unlikely that an employee in an aisle could stumble and inadvertantly insert his hand between the dies without hitting the ejector bar, which would stop the dies from closing. Moreover, there is no evidence that during the operating cycle employees ever attempted to perform an adjustment on a machine requiring them to place their hands near the dies. Thus, Commissioner Barnako believes that normal operation of the machines did not expose Pass & Seymour's employees to injury from the point of operation. The only way an employee could expose himself to injury from the dies during normal operation would be to purposely place his hand between the closing dies. The Act is not intended to prevent employees from purposely harming themselves. Cf., Brennan v. OSHRC (Hanovia Lamp Div., Canrad Precision Indus.), 502 F.2d 946, 951 (3rd Cir. 1974) ( 5(a)(1) does not impose liability for suicidal self-exposure of employees); National Realty and Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973) (same).

[*12]

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Respondent also takes exception to the Judge's statement that Respondent's awareness of the need for additional guarding under the cited OSHA standard was shown by the fact that Respondent intended for five years to seek a variance from the standard. Respondent asserts that its application for a variance was made only to assure the Secretary that Respondent is concerned for the safety and health of its employees and not because it thought a variance was necessary.

As discussed in footnote 4 of this decision, a particular employer's awareness of the need for additional guarding is irrelevant to the question of whether the employer violated section 1910.212(a)(3)(ii). Accordingly, our finding that Respondent violated the standard does not depend on Respondent's state of mind in seeking a variance. n7 We also note that a variance has prospective effect only, and the fact that Respondent ultimately applied for a variance cannot excuse its failure to comply with the standard before it applied for the variance. See Industrial Steel Erectors, Inc., 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD P17,136 [*13] (No. 703, 1974); Cf. E.F. Houghton & Co., 73 OSAHRC 40/G3, 1 BNA OSHC 1150, 1971-73 CCH OSHD P15,625 (No. 1553, 1973).

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n7 Respondent also explains that it delayed in applying for the OSHA variance because it had obtained a variance from New York and it was under the belief that New York intended to enforce its own occupational safety and health program. See 29 U.S.C. 667. Respondent's reasons for delaying in seeking an OSHA variance, however, are no more relevant than its reasons for seeking the variance in the first place. We also note that, although the machines apparently complied with the New York variance, compliance with a state requirement cannot excuse a failure to comply with the applicable federal standard. Kroehler Manufacturing Co., supra.

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The judge's decision is affirmed.