STANDARD MOTOR PRODUCTS, INC.
OSHRC Docket No. 77-3939
Occupational Safety and Health Review Commission
August 31, 1982
[*1]
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Nathaniel Sills, Executive Vice-President, Standard Motor Company, for the employer
OPINION:
DECISION
BY THE COMMISSION:
The Secretary of Labor issued a citation item alleging that Standard Motor Products violated 29 C.F.R. § 1910.217(c)(2)(i)(a). Administrative Law Judge Alfieri vacated the citation item because he found insufficient evidence that employees had access to the allegedly violative condition. We affirm the judge's disposition but on the ground that the evidence of noncompliance is insufficient.
Standard Motor operates a mechanical power press equipped with a hairpin guard that is interlocked with the press' ram. The hairpin guard has a six-inch by six-inch opening out of which stamped parts are ejected through a discharge chute. A box covered this opening. n1 The compliance officer testified that, in an effort to relieve a jam or readjust stock, an employee might remove the box that covers the hairpin guard opening and reach through the opening into the point of operation, instead of stopping the press by [*2] raising the interlocked guard.
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n1 Although the photographic exhibits do not show the box in position, the compliance officer testified that the box covered the opening when he inspected the machine. From this, we infer that the box was removed during the inspection for demonstrative purposes.
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Section 1910.217(c)(2)(i)(a) states that point of operation guards on mechanical power presses "shall prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard." A "guard," as that term is used in section 1910.217, is a "barrier." n2 The record in this case must therefore show that the press lacked a barrier that prevented hands or fingers from reaching through the guard. The record is not sufficient on this point. It has not been shown and the Secretary does not argue that when the box covering the opening was in place, entry of the operator's hands or fingers by reaching through the hairpin guard was not prevented by a barrier. The Secretary also does not contend [*3] and the record does not show that the box had been removed when the violation allegedly occurred. Although the box may not have been fastened to the hairpin guard and may not have been interlocked with the press ram, we are reluctant to construe the cited standard to impose such requirements. Other standards within section 1910.217 specifically address those matters. See sections 1910.217(c)(2)(i)(d) and (c)(2)(iv). n3
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n2 Section 1910.211(d)(32) defines "guard" as used in section 1910.217 as "a barrier that prevents entry of the operator's hands or fingers into the point of operation."
n3 The majority disagrees with the statement in the dissenting opinion that the compliance officer's theory of how an employee might be injured on the L & J press "was corroborated by the fact that an injury had occurred recently on another of Standard's power presses"; the majority also disagrees with the significance of the statement in the dissent that a Standard employee "had received in injury after lifting [a hairpin] guard and attempting to manually clear another power press."
The compliance officer testified that on the Bliss press there were two openings in the hairpin guard large enough to permit an employee to insert his hand or fingers into the point of operation. The operator of the Bliss press was not injured by inserting his hand or fingers through the openings in the guard. He instead lifted the interlocked hairpin guard, inserted his fingers to clear a jam, and was injured when he activated a jog button. The compliance officer himself conceded that the circumstances of this accident had nothing to do with the later citation alleging violations of section 1910.217(c)(2)(i)(a) on either the Bliss or L & J machines. In view of these dissimilarities, we disagree with the dissenting opinion's conclusion that the injury on the Bliss press corroborated the compliance officer's theory of how an injury could occur on the L & J press.
[*4]
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Accordingly, the judge's decision is affirmed.
SO ORDERED.
DISSENTBY: COTTINE
DISSENT:
COTTINE, Commissioner, dissenting:
I.
The compliance officer described how an injury could occur on the power press cited in this case:
[I]f the press were to jam as it is in the automatic mode, an employee could put his hand in the point of operation to free a jam, to free a part which may have gotten hung up on some portion of the die or perhaps to realign the strip of metal as it is fed through the die through the point of operation. So, it is predictable that an employee could put his hands into that hole.
The compliance officer's opinion that an employee might reach his hand into the point of operation to free a jam and thereby injure himself was corroborated by the fact that an injury had occurred recently on another of Standard's power presses. Nonetheless, the majority vacates a citation for failure to guard the point of operation on a power press because an "oil-soaked cardboard box" happened to be over the press's discharge chute when the compliance officer first observed the machine. The cardboard box was removed during [*5] the inspection. There is no indication that the box generally was kept on the machine or that it was attached to the machine. Standard made no reference to the cardboard box in its defense. Up to now no one, including the judge, has put any significance on the presence of the box at the start of the inspection.
Numerous provisions of section 1910.217 amply demonstrate that cardboard boxes do not constitute machine guards. To conclude that the presence of the cardboard box precludes finding that employees were not protected by a guard to "prevent entry" of hands of fingers into the point of operation is to misread the standard and ignore well-established Commission precedent.
Section 1910.217 is intended to provide positive protection against injury resulting from bad judgment and deliberate disregard of safe procedures. This is clear from an examination of the language of section 1910.217 when it is read as a whole. Sections 1910.217(c)(2)(i)(a), (b), and (d) state:
(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 [*6] hands of 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;
* * *
(d) It shall utilize fasteners not readily removable by operator, so as to minimize the possibility of misuse or removal of essential parts;
|
Table 0-10 provides: |
|
|
Distance of opening from point of operation |
Maximum |
|
hazard [In inches] |
width of |
|
|
opening |
|
1/2 to 1 1/2 |
1/4 |
|
1 1/2 to 2 1/2 |
3/8 |
|
2 1/2 to 3 1/2 |
1/2 |
|
1 1/2 [sic] to 5 1/2 |
5/8 |
|
5 1/2 to 6 1/2 |
3/4 |
|
6 1/2 to 7 1/2 |
7/8 |
|
7 1/2 to 12 1/2 |
1 1/4 |
|
12 1/2 to 15 1/2 |
1 1/2 |
|
15 1/2 to 17 1/2 |
1 7/8 |
|
17 1/2 to 31 1/2 |
2 1/8 |
This table shows the distances that guards shall be positioned from the danger line in accordance with the required openings.
Section 1910.217(c)(2)(iv) states:
An interlocked press barrier guard shall be attached to the press frame or bolster and shall be interlocked with the press clutch control so that the clutch cannot be activated unless the guard itself, or the hinged or movable sections of the guard are in position to conform to the requirements of Table 0-10.
The maximum opening widths prescribed by Table 0-10 [*7] are so narrow and the minimum safety distances so great that press guards meeting the table's requirements would prevent the operator from reaching into the point of operation. The reference in section 1910.217(c)(2)(i)(d) to "misuse or removal of essential parts" clearly indicates an intent to protect against even intentional employee misconduct. Section 1910.217(c)(2)(iv) specifically forbids reliance on an employee to activate a press without an interlocked barrier guard.
The cited standard, which seeks to preclude entry of hands or fingers into the point of operation "by reaching through, over, under or around the guard," is based on the judgment that guards must prevent entry of hands into the point of operation, whether entry is caused by inadvertence, poor judgment or intentional misconduct. It recognizes that employees do not always follow prescribed safety procedures and that the serious potential hazards associated with unguarded points of operation on power presses require reliance on fully effective physical guards.
II.
The majority cites no Commission cases to support its conclusions, although many similar cases have been decided. The Commission has consistently [*8] affirmed citations in comparable circumstances. For example, in Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979), appeal dismissed, No. 80-4013 (2d Cir. March 21, 1980), the Commission affirmed an alleged violation of section 1910.212(a)(3)(ii) n4 for an unguarded point of operation on an automatic molding machine. The Commission analyzed the case as follows:
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 [*9] 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 is operating. Respondent argues, however, that the precautions it took were sufficient to avoid the point of operation hazard.
7 BNA OSHC at 1963, 1979 CCH OSHD at pp. 29,237-38. In refjecting the Respondent's argument, the Commission stated:
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., [78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978)]; Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1979 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, 1976-17 CCH OSHD P20,302 (No. 4859, 1976). As the judge observed, the [*10] 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.
Id.
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n4 § 1910.212 General requirements for all machines.
(a) Machine guarding --
* * *
(3) Point of operation guarding.
* * *
(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.
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There is no basis for distinguishing Pass & Seymour from the present case. In this case, the compliance officer testified without rebuttal that the operator stood one foot from the machine and was responsible for monitoring the press and clearing it in the event of a malfunction. The compliance officer also testified that an [*11] employee might neglect to shut off the press before attempting to clear it in an attempt to save time. The hairpin guard would not prevent entry into the point of operation if that occurred. Indeed, despite the presence of a guard, one of the Respondent's employees had received an injury after lifting the guard and attempting to manually clear another power press. As noted, there is absolutely no record evidence supporting the conclusion that the cardboard box was a suitable point of operation guard or that it prevented access to the point of operation. Common sense dictates that an oil-soaked cardboard box, that is not even affixed to the machine and is therefore readily removable, could not serve as a positive means of employee protection as required by the cited standard.
Since Pass & Seymour was decided the Commission has consistently affirmed citations alleging inadequately guarded points of operation where an employee had duties that could result in exposure to injury and has repeatedly stressed that there must be positive means of protection that are not dependent on human behavior. E.g., F.H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA OSHC 1063, 1066-7, 1980 CCH [*12] OSHD P24,277 at p. 29,574 (No. 12883, 1980), appeal dismissed, No. 80-3277 (6th Cir. Feb. 9, 1981) (operator's hands were 10 to 20 inches from unguarded point of operation during work cycle -- a prima facie case of noncompliance with both 1910.212(a)(3)(ii) and 1910.217(c)(1)(i) established); Amforge Div., Rockwell International, 80 OSAHRC 46/A2, 8 BNA OSHC 1405, 1407, 1980 CCH OSHD P24,439 at p. 29,814 (No. 76-3488, 1980) (evidence that operator's hand "could" become caught in point of operation because of "both actual and potential" proximity of the employee's hands to the unguarded point of operation -- point of operation hazard established); H.B. Zachry Co., 80 OSAHRC 69/A2, 8 BNA OSHC 1669, 1674, 1980 CCH OSHD P24,588 at p. 30,166 (No. 76-2617, 1980) (standard requires physical methods of guarding, not reliance on human behavior; where it is "possible" for an employee to place a hand or finger in the point of operation during the operating cycle, a "hazard, though remote, exists") (emphasis in original); Mayhew Steel Products, Inc., 80 OSAHRC 77/A2, 8 BNA OSHC 1919, 1920, 1980 CCH OSHD P24,678 at p. 30,286 (No. 77-3970, 1980) (machine guarding standards intended [*13] to prevent accidental presence of extremities in the point of operation; operator's fingers could come within inches of the stamp -- this alone constitutes a hazard requiring protection); Dayton Tire & Rubber Co., 80 OSAHRC 95/D4, 8 BNA OSHC 2086, 2092, 1980 CCH OSHD P24,842 at p. 30,639 (No. 16188, 1980), appeal dismissed, No. 80-3755 (6th Cir. Aug. 18, 1981) (partial point of operation guarding inadequate -- physical guarding rather than guarding methods that depend on human behavior required); American Package Co., Inc., 80 OSAHRC 102/E12, 8 BNA OSHC 2167, 2170, 1980 CCH OSHD P24,871 at p. 30,670 (No. 76-2349, 1980) ("possible for the operator's hand to be in the point of operation and receive a crushing injury" because the operator "could . . . insert his or her hand into the point of operation" -- point of operation hazard established); Ormet Corp., 80 OSAHRC 116/C10, 9 BNA OSHC 1055, 1058, 1980 CCH OSHD P25,001 at p. 30,882 (No. 76-530, 1980) (no evidence that an employee's hand or arm "could be caught or pulled" into the machine -- hazard requiring guarding has not been established); Tube-Lok Products, 81 OSAHRC 17/B7, 9 BNA OSHC 1369, 1374, 1981 CCH OSHD [*14] P25,235 at p. 31,194 (No. 16200, 1981) (employees whose hands were at times 12 inches from point of operation during the operating cycle were exposed to the possibility of permanent injury, even though "the possibility of such an incident was low" -- standard violated); York Heel of Maine Inc., 81 OSAHRC 40/B11, 9 BNA OSHC 1803, 1807-8, 1981 CCH OSHD P25,351A at p. 31,474 (No. 78-5920, 1981) (operator's fingers "could" fit through a 1/2 inch gap into the point of operation -- employer violated the standard's requirements that a guard be designed so as to prevent entry); Columbian Art Works, Inc., 81 OSAHRC 96/F5, 10 BNA OSHC 1132, 1133 & n.2, 1981 CCH OSHD P25,737 at p. 32,102 & n.2 (No. 78-29, 1981) (standard requires physical guarding device designed to prevent employees from having any part of their bodies in the danger zone rather than reliance on employee skill or attentiveness); George C. Christopher & Sons, Inc., OSAHRC, 10 BNA OSHC 1436, 1444, 1982 CCH OSHD P25,956 at p. 32,532 (No. 76-647, 1982) (machine guarding "standards require a device that itself prevents the operator from endangering himself" and reject reliance on employee skill of attentiveness); American [*15] Luggage Works, Inc., OSAHRC, 10 BNA OSHC 1678, 1682-3, 1982 CCH OSHD P26,072 at p. 32,796 (No. 77-893, 1982) (standard requires physical guarding, not reliance on employee skill or attentiveness, and "is intended to eliminate danger from unsafe operating procedures, poor training, or employee inadvertence); General Electric Co., 82 OSAHRC 31/C2, 10 BNA OSHC 1687, 1690-91, 1982 CCH OSHD P26,071 at p. 32,789 (No. 77-4476, 1982) (standard requires "physical guarding methods that do not depend for their effectiveness on correct employee behavior").
I would affirm the alleged violation on the basis of this precedent.