MAYHEW STEEL PRODUCTS, INC.  

OSHRC Docket No. 77-3970

Occupational Safety and Health Review Commission

July 31, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Mark I. Berson, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Abraham Gold is before the Commission for review under 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").   In his decision, Judge Gold vacated a citation alleging that the Respondent, Mayhew Steel Products, Inc., failed to comply with 29 C.F.R. §   1910.212(a)(3)(ii) n1 in that the point of operation on a Marklin No. 12 stamping machine was not guarded. Judge Gold described the operation of the machine at issue as follows:

Respondent has two such machines in the packing room; the machines stamp company names on tools . . . .   The operator sets the tool into position by hand, placing and holding it on a rest; a steel ring stamp rolls over the steel tool, imprinting the name . . . .   The machine is activated by a foot pedal . . ., the stamp moving over the tool from right to left . . . .   The operator holds the left edge of the [*2]   tool, but for the smallest tools she uses both hands to hold them in place . . . .   The size of the objects to be stamped varies from four inches to 18 inches . . .; the longest stamp will roll about 1-1/2 inches . . . .   [Transcript cites omitted].

After setting forth that description of the machine's operation, the judge referred to certain testimony of one of the Respondent's witnesses, the foreman of the department in which the stamping machine was located.   That testimony was to the effect that, during the normal operation of the stamping machine, the operator's hands and fingers are outside of the point of operation during the operating cycle. n2 Based on this testimony, Judge Gold entered a finding "that the operator's fingers do not and are not likely to enter the danger zone during the operating cycle; and that the point of operation, therefore, does not expose an operator to injury." Accordingly, he concluded that the Secretary of Labor ("the Secretary") had failed to sustain his burden of proving the alleged nonserious violation of the Act and ordered the citation item vacated.

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n1 Section 1910.212(a)(3)(ii), in pertinent part, provides as follows:

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 Specifically, the cited testimony related to certain devices on the stamping machine referred to as "stops." These devices, which are adjustable, control the lateral distance over which the steel ring stamp moves.   In response to questions from the Respondent's counsel and the judge, the Respondent's foreman testified as follows:

Q.   You have operated that machine, have you not?

A.   Yes, I have.

Q.   Isn't your ringer always beyond the stop?

A.   Well, I've got them all.   I must have -- yes, as far as I know.   I haven't lost any yet.

JUDGE GOLD: The question is: Is your finger always beyond the stop?

THE WITNESS: It's beyond the two stops at the top, yes.

Citing to this testimony, the judge found that "[t]here are two stops, which are adjustable, and the operator's fingers on the edge of the tool being stamped are always beyond the stops."

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The Secretary thereafter petitioned for review of that part of the judge's decision and order relating to the Respondent's alleged noncompliance with section 1910.212(a)(3)(ii).   In his petition, the Secretary argued that the judge's decision was contrary to Commission precedent sustaining alleged violations of the Act for failure to comply with section 1910.212(a)(3)(ii) in similar circumstances.   Thus, he asserted:

Even assuming that the judge was correct in his conclusion that the cycle of the machines is not hazardous to employees under normal operating conditions, the judge's reliance on this conclusion as a basis for vacating the instant citation is contrary to the well established purpose of the machine guarding requirements, including 1910.212(a)(3)(ii).   The Commission has held repeatedly that the machine guarding standards are designed to prevent the accidental presence of extremities in points of operation . . . . Moreover, the record clearly establishes that even during normal operating procedures the operator's fingers can come within inches of the stamp. The Commission has held that such [*4]   proximity alone constitutes a hazard requiring protection . . . . [citations omitted]

Commissioner Cottine directed review of the case, limiting review to those issues raised in the Secretary's petition. n3

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n3 The Respondent had also petitioned for review of Judge Gold's decision, contending that the judge erred in his disposition of two other citation items.   However, review was not directed on those issues.   When an order for review directs that the Commission consider issues raised in the petition for review of one party but is silent as to the issues raised in the petition for review of another party, the second party's petition is deemed denied.   See Commission Rule of Procedure 91(d), 29 C.F.R. §   2200.91(d).   Accordingly, the Respondent's exceptions to the judge's decision are not before us.

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We agree with the Secretary.   Judge Gold's decision and order with respect to the item on review is inconsistent with established Commission precedent, both in terms of its reasoning and its conclusion.   Thus, in several [*5]   cases, the Commission has sustained the Secretary's allegations that employees operating machines in a manner similar to the method of operation described by Judge Gold, supra, were exposed to hazards from the point of operation within the meaning of section 1910.212(a)(3)(ii).   See, e. g., H.B. Zachry Company (International), 80 OSAHRC    , 8 BNA OSHC 1669, 1980 CCH OSHD P24,588 (No. 76-2617, 1980); Amforge Division, Rockwell International, 80 OSAHRC    , 8 BNA OSHC 1405, 1980 CCH OSHD P24,439 (No. 76-3488, 1980); F.H. Lawson Co., 80 OSAHRC    , 8 BNA OSHC 1063, 1980 CCH OSHD P24,277 (No. 12883, 1980), pet. filed, No. 80-3277 (6th Cir. April 21, 1980).   Moreover, the Commission has consistently rejected contentions that the existence of a hazard is negated by evidence that an operator's hands and fingers are not placed within the point of operation during the operating cycle if the machine is operated properly.   See, e.g., H.B. Zachry Company (International), supra; F.H. Lawson Co., supra; Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979), pet. filed, No.   [*6]   80-4013 (2d Cir. Jan. 25, 1980).   We therefore conclude that Judge Gold's decision must be set aside and the case remanded for reconsideration in light of Commission precedent and the record, including any arguments by the parties as to the merits of the alleged violation.

Accordingly, the case is remanded to the chief judge for assignment to an administrative law judge for the purpose of issuing a decision and order disposing of the citation alleging noncompliance with section 1910.212(a)(3)(ii). n4 SO ORDERED.

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n4 Judge Gold has retired from the Commission since the issuance of his decision in this case.

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