AUTO SUN PRODUCTS CO.
OSHRC Docket No. 77-2616
Occupational Safety and Health Review Commission
June 30, 1981
[*1]
Before: CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
William S. Kloepfer, Associate Regional Solicitor, USDOL
Alfred K. Nippert, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge James A. Cronin is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Cronin found that Respondent, Auto Sun Products Company ("Auto Sun"), had violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with several safety standards. We affirm Judge Cronin's decision in part and reverse in part.
I
A
On July 7, 1977, an Occupational Safety and Health Administration ("OSHA") compliance officer inspected Auto Sun's small metal finishing and stamping company in Cincinnati, Ohio. He observed Auto Sun's employees placing racks and baskets filled with metal parts into tanks containing mild acid or cyanide solutions. The compliance officer testified that this operation presented a danger of splashing, from either parts dropping out of the basket into the solution or an entire basket falling into the solution. [*2] During this operation, the employees were not wearing any type of protective equipment for their eyes. Auto Sun was cited for failing to comply with 29 C.F.R. § 1910.94(d)(9)(v) which requires that,
Whenever there is a danger of splashing, for example, when additions are made manually to the tanks, or when acids and chemicals are removed from the tanks, the employees so engaged shall be required to wear either tight-fitting chemical goggles or an effective face shield. See § 1910.133.
Auto Sun offered several arguments about the failure of its employees to wear tight-fitting goggles or face shields as required by section 1910.94(d)(9)(v). First, Auto Sun claimed that the Secretary of Labor ("the Secretary") must show a reasonable probability of injury from splashing. n1 Auto Sun argued that the evidence did not establish a reasonable probability of injury from splashing.
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n1 Because the cited standard refers to § 1910.133, Auto Sun claims § 1910.94(d)(9)(v) must be read in conjunction with § 1910.133 which provides, in pertinent part,
Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. . . .
[*3]
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Next, Auto Sun claimed that the term "additions," as used in the cited standard, is commonly accepted in the industry to mean chemical additions. In this case, no chemicals were added to the solutions, only parts. Therefore, Auto Sun argued that the standard is inapplicable.
Auto Sun also claimed that the tight-fitting goggles and face shields produce greater hazards than they eliminate. The goggles, according to Auto Sun, cause headaches, contact dermatitis and reduced vision, which are much greater hazards than the extremely remote possibility of splashing. Accordingly, Auto Sun argued that only safety glasses with side shields should be required. n2
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n2 A letter from the National Association of Metal Finishers ("NAMF"), acting as amicus curiae, also described the alleged problems with tight fitting goggles. The NAMF repeated Auto Sun's contentions that the tight fitting goggles are uncomfortable to wear and tended to "steam up" in the hot, humid atmosphere of a plating shop.
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The Secretary took a more literal view of section 1910.94(d)(9)(v). He claimed that employees must wear goggles or face shields whenever there is a possibility of splashing. The Secretary noted that Auto Sun's injury records, which the Secretary introduced into evidence, indicate that in the past four years there had been 18 splashing incidents in the plating area. Five of these incidents involved chemical burns to the eyes. This history demonstrates, according to the Secretary, sufficient possibility of injury to require goggles of face shields.
The Secretary also concluded that the goggles would not have to be worn throughout the day, so Respondent's concerns about headaches, dermatitis and restricted vision are exaggerated. The defense of a greater hazard, according to the Secretary, was never proven on the record.
Judge Cronin concluded that Auto Sun had failed to comply with section 1910.94(d)(9)(v). The judge found that evidence of eighteen splashing incidents in the past several years indicated a "reasonable probability" of injury from splashing. However, he assessed no penalty because all of the past injuries required [*5] only minor first aid. On review, the parties make essentially the same arguments as they made to the judge.
B
The Commission has recently rejected the argument that section 1910.94(d)(9)(v) requires that goggles or face shields be worn only when manual chemical additions are made to a tank. Pratt & Whitney Aircarft, 81 OSAHRC , 9 BNA OSHC 1653, 1663, 1981 CCH OSHD P25,359 at p. 31,510 (No. 13401, 1981), pet. for review filed, No. 81-4104 (2d Cir. June 22, 1981). We noted that the standard requires that goggles or face shields be worn "whenever there is a danger of splashing," and concluded that the examples of manual additions or removal of solutions from tanks merely illustrated two of many possible situations in which employees might be injured by splashing. Accordingly we conclude that the standard applies to the facts of this case.
Also, the standard requires that goggles or face shields be worn "whenever there is a danger of splashing." We read this to require goggles or face shields be worn whenever there is the possibility of injury from splashing. The compliance officer's testimony about the possibility of splashes from parts or baskets of parts [*6] falling into the acid or cyanide solutions, as well as the evidence of past injuries, demonstrates the possibility of injury from splashing. Because Auto Sun's employees were exposed to the possibility of injury from splashing but Auto Sun did not require goggles or face shields, noncompliance has been proven.
We reject Auto Sun's defense that the goggles present a greater hazard. To establish a "greater hazard" defense, the employer must show that (1) the hazards of compliance are greater than the hazards of noncompliance; (2) alternative means of protecting employees are unavailable; and (3) a variance application would be inappropriate. Duncanson-Harrelson Co., 81 OSAHRC , 9 BNA OSHC 1539, 1981 CCH OSHD P25,296 (No. 76-1567, 1981); M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23, 330 (No. 15054, 1979). Auto Sun simply described the problems associated with goggles. It did not show that the acids were so mild that there was no danger of injury or that obstructed vision and possible rashes are greater hazards than eye burns. In addition, Auto Sun argues that only safety glasses with side shields are required, but Auto Sun was not using [*7] even this form of protection. Finally, Auto Sun did not show that a variance could not be obtained. Accordingly, we affirm this item of the Secretary's citation. For the reasons given by Judge Cronin, we assess no penalty.
II
The tanks in which Auto Sun had the acid and cyanide solutions were only 12 to 15 inches apart. They were located on a common drain and had no dikes around them. Auto Sun was cited for failing to comply with 29 C.F.R. § 1910.94(d)(10), which states,
Dikes or other arrangements shall be provided to prevent the possibility of intermixing of cyanide and acid in the event of tank rupture.
Auto Sun made several arguments about the alleged noncompliance with section 1910.94(d)(10), the diking standard. Auto Sun argued that dikes are not required when the acid and cyanide are kept in separate tanks. Each tank, according to Auto Sun, acts as a dike against the other tank. By keeping the solutions in separate tanks which share no common wall, Auto Sun claims it has satisfied the standard.
The Secretary argued that this interpretation is illogical. The purpose of the standard, according to the Secretary, is to prevent the intermixing of acid and cyanide "from [*8] separate tanks located in close proximity to each other." Since Auto Sun did not provide dikes or other measures to prevent accidental intermixing, it violated the standard.
Judge Cronin held that separate tanks are not enough to satisfy the standard's requirement for "dikes or other arrangements and that Auto Sun was in noncompliance with the standard." Judge Cronin's decision is consistent with our interpretation of the standard, and we affirm the citation. See Cowan Metal Finishing Co., 81 OSAHRC , 9 BNA OSHC 1751, 1981 CCH OSHD P25,321 (No. 78-31, 1981). For the reasons given by Judge Cronin, we assess no penalty. n3
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n3 The Secretary has not sought review of Judge Cronin's characterization of the violation as other than serious. Therefore, that issue is not before the Commission. Henry C. Beck Co., 80 OSAHRC 67/D13, 8 BNA OSHC 1734, 1980 CCH OSHD P24,590 (No. 77-963, 1980).
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III
A
The OSHA compliance officer also observed an employee setting up the die of a mechanical power press. During [*9] this process, the right side of the die area of the machine was completely unguarded. The left side of the die area had a five-inch opening located between the front guard and the chute. Moreover, the guard on the left side was not secured and could easily be removed. Auto Sun was cited for failing to comply with sections 1910.217(c)(2)(i)(a) and (b) and 1910.217(c)(iii). n4
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n4 These standards in section 1910.217(c) concern safeguarding the point of operation and provide,
(2) Point of operation guards. (i) Every point of operation guard shall meet the following design, construction, application, and adjustment requirements:
(a) It shall prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard;
(b) It shall conform to the maximum permissible openings of Table 0-10;
* * *
(iii) A fixed barrier guard shall be attached securely to the frame of the press or to the bolster plate.
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Auto Sun claimed that sections 1910.217(c)(2)(i)(a), (c)(2)(i)(b), and (c)(2)(iii) [*10] do not apply in this case. Auto Sun pointed out that the employee working on the unguarded machine was a diesetter, not an operator. Auto Sun claimed the cited standards requiring guards for the point of operation were never intended to apply to diesetters.
The Secretary contended that the point of operation guarding standards do apply to diesetters because the standards apply to every employee operating a mechanical power press. The Secretary emphasized that the diesetters are exposed to the same dangers as the operator of the machine and therefore should have the same protection from the point of operation.
Judge Cronin accepted the Secretary's reasoning and found that Auto Sun had violated the machine guarding standards. On review, the parties make the arguments they made to the judge. n5 For the following reasons, we reverse the judge's decision in this respect.
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n5 For the most part, the questions of the machine guarding violations are addressed in an amicus curiae brief submitted by the American Metal Stamping Association ("the Association"). Examining the machine guarding standard -- § 1910.217 as a whole -- and their history, the Association argues that the machine guarding standards do not apply to an employee setting up the machine, the "diesetter." Among other things, the Association refers to the definitions of "diesetter," "inch" and "point of operation" in section 1910.211 and the definition of "operator" in the American National Standards Institute ("AMSI") standards from which section 1910.217 was derived. See ANSI B11.1, § 2.30.
Additionally, both Auto Sun and the Association argue that the diesetting job involves countless minute adjustments to the die of the machine. This process would be needlessly prolonged if the diesetter was required constantly to erect and disassemble the guards. Auto Sun and the Association also argue that the judge improperly amended from one cited standard to an uncited standard in § 1910.217.
[*11]
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An unusual set of circumstances surrounds the alleged violations of the point of operation guarding standards. The machine guarding standards of section 1910.217 contain requirements for the protection of diesetters. 29 C.F.R. § 1910.217(d). From 1971 to 1980, one of these diesetting standards, section 1910.217(d)(9)(i), stated,
The employer shall establish a diesetting procedure that will insure compliance with paragraph (b) of this section.
The section referred the reader to a part of the machine guarding standards, paragraph (b), containing general provisions dealing with mechanical power press guarding and construction, but not the moe specific paragraph (c) containing the cited standards for safeguarding the point of operation. Therefore, all during this litigation, a question existed whether these standards for point of operation guards applied to diesetters. As Auto Sun's argument on review, see note 5 supra, demonstrates, the definitions in the OSHA and ANSI standards gave rise to confusion about whether the OSHA standards on safeguarding the point of operation applied to diesetting [*12] operations. The reference in section 1910.217(d)(9)(i) to paragraph (b) but not paragraph (c) suggested that the latter paragraph did not apply to diesetting operations.
In 1980, OSHA changed section 1910.217(d)(9)(i) so that it now refers the reader to paragraph (c) of the section. n6 The reason given for the change was that a typographical error had been made in the original Federal Register and subsequent editions of the Code of Federal Regulations.
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n6 See 45 Fed. Reg. 8593-4 (1980).
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We interpret section 1910.217(d)(9)(i) as corrected to apply the point of operation requirements to diesetting operations. However, the typographical error was misleading and, under the circumstances, the text of the standard at the time of the inspection did not afford Auto Sun adequate notice that diesetters were subject to those requirements. Accordingly, the mechanical power press citations must be vacated in the absence of evidence that Auto Sun actually knew of the extended application of section 1926.217(d)(9)(i) before [*13] the 1980 revision. See Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978). Therefore, we reverse the judge's decision affirming these items of the citation. n7
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n7 In view of our disposition, we have no occasion to reach Auto Sun's remaining arguments, see note 5 supra.
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The items alleging noncompliance with sections 1910.94(d)(9)(v) and 1910.94(d)(10) are affirmed but no penalties are assessed. n8 The items alleging noncompliance with sections 1910.217(c)(2)(i)(a), (b) and (c)(iii) are vacated. n9 SO ORDERED
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n8 Auto Sun requests attorneys' fees, claiming the Secretary's actions in this case demonstrate bad faith. We deny this request. The Commission lacks authority to assess costs against any part. John W. McGowan, 79 OSAHRC 189/E10, 5 BNA OSHC 2029, 1977-78 CCH OSHD P22,268 (No. 76-1308, 1977), aff'd, 604 F.2d 885 (5th Cir. 1979).
n9 Commissioner Cottine would enter an abatement order but assess no monetary penalty in a situation where an employer did not, and could not with the exercise of reasonable diligence, know of the presence of a noncompliant condition in its workplace. General Elec. Co., OSAHRC , 9 BNA OSHC 1722, 1729, 1981 CCH OSHD P25,345 (No. 13732, 1981) (Cottine, Commissioner, concurring in part and dissenting in part). In his view, the Act's provision for remedial abatement orders and its provision for monetary penalties serve different purposes, and the appropriateness of each type of relied must be determined separately.
Ordinarily, when noncompliance is established, the entry of an abatement order is essential to ensure prospective compliance and to effectuate the remedial purposes of the Act. See General Electric, supra. Cf. Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978) (definitive interpretation of employer's obligations prospectively eliminates notice problems). However, the circumstances of this case are unique. Commissioner Cottine agrees that the typographical error in the standard prior to the 1980 clarification was misleading and that it would be inappropriate under the circumstances to order abatement or penalize Auto Sun for these cited instances of noncompliance. Accordingly, Commissioner Cottine agrees to vacate the citation items involving § 1910.217(c).
[*14]
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