AMERICAN LUGGAGE WORKS, INC.

OSHRC Docket No. 77-893

Occupational Safety and Health Review Commission

May 28, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Patrick A. Liquori, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Ben D. Worcester 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 Worcester vacated a citation alleging noncompliance with 29 C.F.R. 1910.212(a)(3)(ii). n1 The citation alleged that Respondent, American Luggage Works, Inc., failed to guard the points of operation of twenty-five Thomson rivet machines. For the following reasons, we reverse Judge Worcester's decision and affirm the citation.

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n1 29 C.F.R. 1910.212(a)(3)(ii) provides:

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.

[*2]

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I

Respondent manufactures soft vinyl suitcases sold under the American Tourister brand name at its plant in Woonsocket, Rhode Island. The suitcases range in height from twenty-two to twenty-nine inches and are manufactured by joining together vinyl sheets, vinyl straps, rubber and cardboard. The pieces are fastened together by rivets driven by twenty-five Thomson rivet machines, which are a specialized form of power press. The machines are used for four operations: connecting frames to the floor of the luggage and then attaching the frame and floor assembly to the case, attaching handles to the suitcase, attaching bumpers or feet to the luggage, and attaching buckles to shoulder straps which are then attached to the bags.

The rivet machine is operated by depressing a foot pedal, which is shrouded to prevent accidental operation. The foot pedal engages a clutch which engages a power supply from an electric motor. The power is transmitted to a plunger contained within a frame. Directly below the plunger is a pocket holding the rivet. The pocket is about one-half to three-quarters on an inch above [*3] the pilot, a pin is used to locate and align work upon the anvil. This pin is about one-eighth of an inch in diameter. The parts to be riveted are assembled over this spring-loaded pilot. When the press is tripped by depressing the foot pedal, the plunger pushes the rivet through the pocket and through the spring-loaded pilot. The pilot retracts downward part way, allowing the hollow tubular rivet to be pushed downward through the pilot and through the material to be joined. The rivet expands and sets in place as it strikes the anvil. Washers are used with the rivets to strengthen the attachment of the frame to the floor of the luggage and of the bumpers or feet to the luggage. The operator places the washers on the pilot. After placing the washer, an operator removes his hand from the point of operation to hold the bag steady during the operating cycle.

At the hearing, the Secretary presented as witnesses the inspecting compliance officer, Guido DiCenso, and his supervisor, John Barnes. Mr. Barnes inspected Respondent's workplace after the citation issued. Mr. Barnes testified that the most generally accepted guard for rivet machines is the ring guard. The ring guard [*4] consists of an aluminum tube or wire ring, one-eighth of an inch in diameter, around the riveting machine plunger. The ring must drop toward the anvil a predetermined distance, which can be adjusted depending on the thickness of the material being riveted, before the machine can operate. When the ring drops down the predetermined distance without encountering an obstruction, a circuit is closed allowing the machine to cycle. If the operator has part of his body in the point of operation, the ring guard will not drop the predetermined distance, and the machine will not cycle. A brochure explaining the operation of the Touch-O-Matic ring guard device manufactured by the Positive Safety Manufacturing Company indicates that the Touch-O-Matic ring guard can be attached to either a side or the front of the machine by means of three mounting holes. Once attached, only one set screw has to be adjusted to alter the distance the ring guard would be required to drop. Mr. Barnes stated that were an employee to move the guard upwards from its pre-adjusted guarding position and then step on the foot pedal to activate the rivet press the press would not operate.

Mr. DiCenso testified that [*5] he observed employees' hands between one and eighteen inches from the point of operation when the machine was activated for different riveting operations. For example, while an employee was attaching handles to a piece of luggage, the compliance officer observed the employee's hands within one inch of the point of operation as the machine cycled. Moreover, while aligning feet on the bottom of the luggage prior to activating the rivet machine, the operator placed his hands directly on the point of operation. The operator removed his fingers from the point of operation before stepping on the foot pedal to activate the machine.

The Secretary also presented as a witness Frances Boni, an employee who operated a rivet machine to rivet a strap and buckle onto the luggage. She stated that her hand was one-half to one inch from the point of operation when the rivet struck the strap and attached it to the luggage bag. She stated that, while she was never injured, she had close calls when her hands slipped while holding the strap over the pin on the anvil.

The Secretary also presented as a witness another employee, Mary Beattie, who riveted the buckle on the zipper which holds the shoulder [*6] strap. Mrs. Beattie stated that she had to place a washer right on the pilot at the point of operation prior to removing her hands from the point of operation. When she stepped on the foot pedal, her hands were about two or three inches from the point of operation. She was injured when she accidentally cycled the machine while her hands were still within the point of operation. A rivet and washer went through her thumb and she was out of work for three weeks. However, she thought she had been careless in allowing herself to be injured. The Secretary showed that five employees had been injured over a three-year period while operating the rivet machines.

Respondent presented three witnesses at the hearing. Henry Stevens, Respondent's director of safety and security, stated that a ring guard was not necessary to protect employees in riveting the frame to the luggage bag and the frame to the floor of the bag since the operator was required to hold the outside of the bag. The operator's hands were therefore away from the point of operation. Moreover, when bumpers were riveted to the bottom of the luggage, there was not sufficient clearance for fingers to get within the point [*7] of operation. However, he also stated that this was not true of the three other riveting processes: riveting the frame to the floor, the frame to the bag, and the handle to the bag.

Mr. Stevens stated that he had not attempted to guard the point of operation of the rivet machines before the citation issued in this case. He stated that the ring guard would be appropriate if it closed to within one-quarter of an inch of the point of operation but that the work pieces were of such a configuration that a guard could leave at least half an inch, and possibly a greater opening, at the point of operation. He also testified that, in attaching handle tabs to the covering over the frame of the suitcase, the ring guard would allow the machine to operate while the guard was still an inch and a quarter above the top of the bag.

Respondent's second witness was Marcel Hoyas, a senior loss prevention consultant employed by Liberty Mutual Insurance Company, the company which carries Respondent's workman's compensation policy. He stated that rivet machines in the luggage manufacturing industry did not have point of operation guards. Mr. Hoyas was familiar with the ring guard protective device [*8] but concluded that "the work place configuration" did not lend itself to using the ring guard. He stated that the ring guard could not protect employees riveting the handle to luggage because the handle extended too high above the luggage bag. As a general matter, he concluded that ring guards would not adequately protect employees operating rivet machines because the operator could still reach over, around, or through the guard. He also stated that the ring guard would not protect employees to a greater degree than current operating procedures because the employee would rely on the ring guard rather than adhere to proper work practices. He thought that the ring guard was highly susceptible to malfunction; he had tested ring guards and "in three successive attempts [he] found them to malfunction."

Respondent's last witness was John W. Juechter, a design and mechanical engineer. Mr. Juechter stated that the point of operation of Respondent's rivet machines could not be "effectively guarded" by any guarding device and that for all of Respondent's operations, except one, a ring guard would be "impractical." The only operation in which Mr. Juechter thought a ring guard could be [*9] used was attaching bumpers to the bottom of the bag. However, since the operator's hands did not come near the anvil during this operation, he saw no advantage in using a guard for this operation. Because the materials riveted together are not uniform in shape, quality or thickness, and since many pieces are large and supported on a single point, Mr. Juechter stated that it would be impractical to use a ring guard -- a device that must be adjusted to drop a predetermined distance.

Mr. Juechter stated he does not design safety guards and did not observe, in preparation for this case, any guards on riveting machines for luggage manufacturing. He has seen the Touch-O-Matic ring guard device for point of operation guarding at a plant of a different employer in Rhode Island. There, the rivet presses were riveting small pieces together. He had never seen a Touch-O-Matic ring guard used on a riveting machine in a luggage operation and thought that there was no serious opportunity for injury where the operator's hands were an inch or two away from the point of operation.

II

Judge Worcester vacated the citation because he concluded that the Secretary had not established how Respondent [*10] should have guarded its rivet machines. He found that the Secretary had not established that using a ring guard was feasible. Relying on Respondent's witnesses Mr. Hoyas and Mr. Juechter, he further found that no attentive employee could be injured and that a ring guard would preclude performance of required work.

The Secretary petitioned for review of Judge Worcester's decision and excepted to Judge Worcester's findings that employees attentive to their duties could not be injured, that a ring guard was not reliable and would preclude performance of required work, and that no other type of guard would be feasible. The Secretary also took exception to the judge's placing the burden of proof on the Secretary to show what the employer should have done to comply with section 1910.212(a)(3)(ii). Commissioner Cleary granted the petition and directed review on all issues raised in the petition.

On review, the Secretary argues that the distance of the operator's hands to the point of operation was conceded to be as little as one inch, establishing exposure to the hazard, and that section 1910.212(a)(3)(ii) requires guarding by a device and does not permit reliance on employee attentiveness. [*11] He argues that the employer must establish the affirmative defense of impossibility, not infeasibility, and that the Secretary need not prove feasibility. He further argues that to establish the impossibility defense, the employer must establish that compliance was impossible and that available alternative protective means were used. The Secretary contends that Respondent provided no alternative protection except for legally insufficient safety instructions and made no effort to devise appropriate machine guarding.

The Secretary argues that Respondent failed to establish that it was impossible to guard the riveting machines. He notes that Respondent never hired a qualified consultant to assist in guarding the machines, did not test any guards, and did not apply for a variance. He points out that Respondent's safety director, Mr. Stevens, was not an engineer, never designed point of operation guards for rivet machines, and never tried to use any guards on these machines. He also notes that Respondent's witness Mr. Hoyas, the insurance company employee, was not a mechanical engineer, never designed guards for riveting machines, and stated he was not qualified to design such guards. [*12] The Secretary also states that Mr. Hoyas, despite Respondent's injury record, did not consult with anyone to see if a ring guard could be adapted. Moreover, the Secretary points out that Mr. Hoyas did not know what guarding methods had been tried in the industry. Finally, concerning Respondent's witness Mr. Juechter, a mechanical engineer, the Secretary notes that, while the witness concluded that the point of operation could not be guarded, Mr. Juechter had not observed any guarding in preparation for this case, had not run any guarding tests himself, and had not consulted with any engineers regarding Respondent's machines. The Secretary concludes that, absent even the most basic attempts to test methods of guarding rivet machines, Respondent cannot sustain an affirmative defense of impossibility.

Respondent argues on review that the mere presence of an operator's hands in close proximity to an unguarded machine does not, by itself, show employee exposure to injury. Respondent asserts that, because the foot pedals activating the rivet machines were shrouded and the machines could not cycle more than once when the pedals were depressed, the employees were protected from point [*13] of operation hazards. Respondent also emphasizes that employees received instructions on how to operate the machines and, because they were required to hold the materials being riveted while the machines cycled, the employees' hands were inevitably located away from the point of operation. Respondent asserts that, in view of these safety measures, the judge properly found that employees were not exposed to injury.

Respondent further argues that it has proved an impossibility of compliance defense. It points to testimony that (1) ring guards had been tested and had been found to be highly susceptible to malfunctioning, and (2) the different sized pieces of luggage being riveted made installation of the ring guard impossible. Respondent states that its witnesses Mr. Hoyas and Mr. Juechter considered guarding and determined it to be inappropriate. Respondent contends that the Secretary only introduced evidence of the feasibility of installing a ring guard and that Respondent refuted this evidence, showing that no form of ring guard could be installed. Respondent then argues that once it introduces substantial evidence that one method of guarding is impossible, the Secretary must [*14] either rebut that evidence or show that some other guarding device is possible. Finally, Respondent contends that it had instituted alternative protective measures consisting of instructions to employees concerning proper operating procedures in view of the configuration, size, and arrangement of the materials being riveted. n2

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n2 Respondent also argues that section 1910.217 exempts rivet machines from the guarding requirements of section 1910.212. We have rejected this argument, Irvington Moore, 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir 1977).

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III

In Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD P20,239 (No. 8454, 1975), aff'd, 587 F.2d 231 (5th Cir. 1979), the Commission stated that section 1910.212(a)(3)(ii) prescribes the performance required in guarding the point of operation of machines, that the Secretary need not show that it is possible for guards to be used on machines, and that the impossibility [*15] of guarding the point of operation is an affirmative defense that the employer must establish. See also F.H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA OSHC 1063, 1980 CCH OSHD P24,277 (No. 12883, 1980), appeal dismissed, No. 80-3277 (6th Cir. Feb. 9, 1981). Accordingly, Judge Worcester erred in vacating the citation on the ground that the Secretary failed to establish that there was a feasible method to guard the point of operation.

To establish noncompliance with section 1910.212(a)(3)(ii), the Secretary must show that the point of operation of the machine exposed employees to injury and that it was not physically guarded. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978); Buckeye Industries, Inc., supra. The record in this case reveals that, during the operating cycle, the operators' hands were as close as one inch to the unguarded point of operation. This is sufficient to show that employees were exposed to injury. See F.H. Lawson Co., supra.

Respondent's argument that its employees were not exposed to point of operation hazards because they were instructed in safe operating procedures and [*16] were required to remove their hands from the point of operation during the operating cycle lacks merit. We have previously stated, in Hughes Brothers, Inc., supra, that section 1910.212(a)(3)(ii) requires that guarding be provided by a "device" and does not allow reliance upon the skill or attentiveness of employees. See also 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 (2nd Cir. Mar. 19, 1980); Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1976-77 CCH OSHD P20,589 (No. 1263, 1976); Irvington Moore, 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977). The standard is intended to eliminate danger from unsafe operating procedures, poor training, or employee inadvertence. Pass & Seymour, Inc., supra; Signode Corp., 76 OSAHRC 43/A2, 4 BNA OSHC 1078, 1975-76 CCH OSHD P20,575 (No. 3527, 1976), appeal denied, 549 F.2d 804 (7th Cir. 1977). In this case, five employees have been injured operating Respondent's rivet machines over a three-year period.

Moreover, the evidence [*17] shows that employees' hands were close to the point of operation during the operating cycle. Respondent's reliance on shrouded foot pedals and the machines' non-repeating feature as a method of guarding is misplaced, for these only assist the employees to prevent inadvertent cycling and do not prevent inadvertent contact with the point of operation while the machines are cycling. Thus, the shrouded foot pedals and the non-repeating feature of the machines do not constitute guarding that prevents employees from having their hands in the point of operation during the operating cycle. See MRS Printing, Inc., 78 OSAHRC 84/B10, 6 NBA OSHC 2025, 1978 CCH OSHD P23,102 (No. 76-3113, 1978). Accordingly, we conclude that the Secretary has established that Respondent's employees were exposed to the hazard of an unguarded point of operation. n3

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n3 Respondent argues that American National Standards Institute ("ANSI") B154.1-1974 is an "appropriate" standard to which an employer may refer, for guidance in guarding, by the terms of 1910.212(a)(3)(ii), see note 1 supra, and that, because the ANSI standards except rivet machines used to manufacture suitcases from guarding, Respondent was not required to guard its rivet machines. We have recently held, in George C. Christopher & Son, Inc., No. 76-647 (Feb. 26, 1982), that the phrase "any appropriate standards therefor" within section 1910.212(a)(3)(ii) refers only to applicable specific standards published or incorporated by reference as occupational safety and health standards in Title 29 of the Code of Federal Regulations. Since ANSI B154.1-1974 is not a specific standard published or incorporated by reference as an occupational safety and health standard in Title 29 of the Code of Federal Regulations, we reject Respondent's argument. Moreover, ANSI B154.1-1974 requires that the point of operation of rivet setting machines be guarded unless, among other things, the shape or nature of the materials being riveted would preclude guarding. The riveting of suitcases is listed as one example where the method of riveting might preclude guarding the point of operation. As our discussion of Respondent's impossibility defense indicates, Respondent has not shown that its riveting methods fit within the exception to the standard's guarding requirements, and thus has not shown that the ANSI standard, even if applicable, would not require guarding of the point of operation of its rivet setting machines.

[*18]

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We further conclude that Respondent failed to establish its defense of impossibility. To establish the defense, the employer must establish either that compliance with the standard would preclude performance of the required work or that compliance would be functionally impossible. The employer must also show that alternative means of protection were unavailable. Pass & Seymour, Inc., supra; M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). In this case, Respondent has not met this burden.

The testimony of Mr. Stevens and Mr. Hoyas that the ring guard would leave a large enough opening to permit employees' hands to enter the point of operation while they riveted handles onto the luggage bags was limited to that operation and did not address the impossibility of installing the guard for use in other operations. The testimony of all three of Respondent's witnesses about the problems engendered by the configuration of the materials being riveted is also insufficient to establish the defense. The testimony did not factually describe why [*19] a particular riveting operation could not be performed if a ring guard were used to protect employees from contact with the machine at the point of operation. The witnesses' testimony was general and, in essence, conclusory. The witnesses only indicated that, because of the varying shapes, quality, thicknesses, sizes, and ways of holding the materials into the point of operation, use of the ring guard would be, in Mr. Juechter's words, "impractical" and would leave the point of operation "ineffectively guarded." At most, the testimony suggests that the guard would have to be adjusted for different operations and for materials of different sizes and shapes. See F.H. Lawson Co., supra; Hughes Brothers, Inc., supra. However, the Secretary offered unrebutted testimony that the Touch-O-Matic ring guards could easily be adjusted to accommodate different sized pieces riveted together by adjusting one set screw. n4

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n4 Even if we were to agree with the Respondent's assertion that during certain riveting operations the point of operation would be ineffectively guarded, the Respondent is not excused from its obligation to provide whatever protection is possible. As we have previously noted:

To accept Respondent's argument would be, in effect, to allow a total absence of protection because the guard does not provide complete protection. This is contrary to the express purpose of the Act. See Sec. 2(b) of the Act; Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD P20,925 (No. 7102, 1976).

Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 2172, 1979 CCH OSHD P23,219 at p. 28,078-9 (No. 76-2419, 1978).

[*20]

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Mr. Hoyas testified that he had tested the ring guard, and "in three successive attempts" found that it failed. However, he did not indicate when he made these tests, how they were made, or that he made any attempts to adjust the guards for use on Respondent's machines. Neither Mr. Juechter nor Mr. Stevens testified that they had attempted to design guards for the machines and Mr. Stevens conceded that he had not tried to guard the machines prior to the inspection. What the Commission stated in F.H. Lawson Co., supra, is equally applicable here:

The flaw in respondent's proof of impossibility lies in its failure to even consider changes in its mode of production that might lead to compliance.

* * *

Thus, a respondent faced with a guarding problem is expected to use the skills and resources at its disposal to develop an acceptable method of guarding. This may, in some cases, require changes in the method of operation of the machine.

* * *

[T]he use of certain guarding techniques may make the operation of respondent's machines difficult. Respondent, however, made no attempt to find an [*21] appropriate combination of guarding techniques and operating procedures in order to protect its employees. Therefore, Respondent's defense of impossibility must fail.

8 BNA OSHC at 1067, 1980 CCH OSHD at p. 29,575.

Moreover, a test of the guard would be relatively simple in this case because the guard is available and adjustable. Accordingly, absent evidence of an attempt to use the guard in each of the four operations, we do not accept Respondent's impossibility defense. We do not uphold the defense as to the handles riveting operation, despite Respondent's testimony, because Respondent has not tested to confirm its conclusion and, in this operation, an operator's hands are one inch from the point of operation. If Respondent, after installing the ring guard, does find that the guard precludes performance of any of its work, Respondent may file a petition for modification of the abatement requirement. See section 10(c) of the Act, 29 U.S.C. 659(c).

IV

The Secretary proposed a $60 penalty for the violation, which he alleged was nonserious. n5 At the hearing, Respondent stated that if a violation was found, Respondent did not contest the proposed penalty. Having considered [*22] the factors in section 17(j) of the Act, 29 U.S.C. 666(i), we assess a penalty of $60.

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n5 Respondent also suggests, in its argument in its review brief, that the possibility of injury is negligible in this case and that therefore the violation should be characterized as de minimis. However, we affirm the violation as nonserious because the possibility of injury evidenced by the record in this case and the nature of the harm that could result from an accident are not negligible. See Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1981 CCH OSHD P25,329 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2nd Cir. Aug. 3, 1981); General Motors Corp., Rochester Products Division, 81 OSAHRC 30/E13, 9 BNA OSHC 1575, 1981 CCH OSHD P25,279 (No. 78-2894, 1981), and cases cited therein.

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Accordingly, the judge's decision is reversed and the citation is affirmed. A penalty of $60 is assessed. SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

This case represents the fourth time that [*23] riveting machines in facilities owned by Respondent have been inspected. At each previous inspection, the compliance officers found no violation of point of operation guarding standards on the basis of the exemption set forth in 29 C.F.R. 1910.217(a)(5). n1 I believe that the compliance officers were correct the first three times, and that section 1910.217(a)(5) precludes the Secretary from citing Respondent under the general point of operation guarding standard at section 1910.212(a)(3)(ii). However, even assuming that the cited standard applies, I believe the record establishes, for all the rivet machines, either that employees' hands were sufficiently far away and protected from the point of operation when the machines cycled that employees were not exposed to injury when following proper operating procedures, or that it would be infeasible to guard the machines.

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n1 29 C.F.R. 1910.217(a)(5) provides, in pertinent part:

1910.217 Mechanical power presses.

(a) General requirements.

* * *

(5) Excluded machines. Press brakes . . . riveting machines and similar types of fastener applicators are excluded from the requirements of this section.

[*24]

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It is undisputed that Respondent's riveting machines are mechanical power presses. Section 1910.217 is entitled "Mechanical power presses" and contains detailed requirements such machines must follow, including requirements for guarding the point of operation. See section 1910.217(c). An employer in Respondent's position would therefore naturally look to section 1910.217 to determine the requirements for guarding its rivet machines. See Snyder Well Servicing, Inc., 82 OSAHRC    , 10 BNA OSHC 1371, 1375, 1982 CCH OSHD P25,943 at p. 32,511 (No. 77-1334, 1982); General Supply Co., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1976-77 CCH OSHD P21,503 (No. 11752, 1977), appeal dismissed, No. 77-1614 (5th Cir. June 22, 1977). When it did so, it would discover that section 1910.217(a)(5) excludes riveting machines "from the requirements of [section 1910.217]." This indicates to employers that point of operation guarding of such machines is not required. Nothing in the standards gives employers fair warning that they are subject to point of operation guarding requirements under other standards. [*25] See Irvington Moore v. OSHRC, 556 F.2d 431 (9th Cir. 1977) (Wright, Judge, dissenting). Thus, I would not apply section 1910.212(a)(3)(ii) but, since my colleagues and the judge have applied the standard, I will address the merits of the alleged violation. I believe the record fails to establish a violation.

Respondent performs four distinct riveting operations in its luggage manufacturing plant in Woonsocket, Rhode Island: riveting handles to the suitcase; riveting buckles to shoulder straps, which are then attached to the bag; riveting bumpers, or feet, to the luggage bag; and riveting the frames to the floor of the luggage, and then riveting the frame and floor assembly to the case. The Secretary's compliance officer, Mr. DiCenso, described how different machines were used for different operations. He stated that six machines were used to install handles and that during this installation, an operator's hands could be as little as one inch from the point of operation. Eight machines were used in assembling straps, where the operator's hands were between six and twelve inches from the point of operation, and eleven machines were used to rivet bumpers to the bottom [*26] of the suitcase, where the operator's hands would be twelve to eighteen inches from the point of operation. For the bumper attaching operation, there was insufficient clearance for fingers to get within the point of operation.

In attaching the frame to the floor of the luggage and in riveting bumpers on the luggage, a washer was used to strengthen the attachment. The washer was placed on the anvil pilot at the point of operation, after which the operator removed his hands from the point of operation, gripped the sides of the suitcase, and stepped on the foot pedal to operate the rivet press. Moreover, when an employee was riveting the frame to the floor of a piece of luggage and then riveting the frame to the bag, his hands would be a great distance from the point of operation.

The Commission has previously stated that the way a machine functions and the manner in which it is operated by employees must be considered in determining whether it presents a hazard. See Stacey Manufacturing Co., 82 OSAHRC    , 10 BNA OSHC 1534, 1537, 1982 CCH OSHD P25,965 at p. 32,560 (No. 76-1656, 1982); Rockwell International Corp., 81 OSAHRC 118/A2, 9 BNA OSHC 1092, 1097, 1980 CCH OSHD [*27] P24,979 at p. 30,846 (No. 12470, 1980). Moreover, it is during the operating cycle, and not before, that the standard requires that a guarding device protect an employee from having any part of his body in the danger zone. George C. Christopher & Sons, Inc., 82 OSAHRC    , 10 BNA OSHC 1436, 1445, 1982 CCH OSHD P25,956 at p. 32,533 (No. 76-647, 1982). Therefore, guarding is not required if the nature of the machine operation does not expose an employee to injury. Rockwell International Corp., supra; Collator Corp., 76 OSAHRC 32/A2, 3 BNA OSHC 2041, 1975-76 CCH OSHD P20,446 (No. 2004, 1976)

Mr. DiCenso's testimony established that employees were not exposed to injury while using the eight machines to rivet straps, since their hands were at least six inches from the point of operation when the machine was activated, and there was no evidence indicating employees had any reason to come in contact with the point of operation during the operating cycle. Similarly, employees operating the eleven machines used to rivet bumpers on to the bottom of the suitcases were holding the suitcases to keep them steady while the machine was activated. Their hands were twelve to [*28] eighteen inches from the point of operation when they cycled the press and also were not exposed to injury within the meaning of section 1910.212(a)(3)(ii). Finally, for the operations where the frame was attached to the floor and then the frame and floor assembly attached to the bag, Mr. Stevens, Respondent's Safety Director, testified that employees were holding the outside of the bag while cycling the machine for this operation, and their hands were a great distance from the point of operation. Therefore, during this operation, employees were not exposed to injury. Thus, the record establishes, for all operations except riveting the handle to the suitcase, that employees were not exposed to injury during the operation of the machines.

Mr. Hoyas, a senior loss prevention consultant employed by the company carrying Respondent's workman's compensation policy, stated that rivet machines used in the luggage manufacturing industry generally did not have point of operation guarding. He was familiar with the ring guard protective device, and stated that in riveting the handle to the luggage bag, the handle extended so high above the piece that the ring guard would by physically unable [*29] to descend to protect employees. Moreover, Mr. Hoyas stated that he had tested several ring guard units and that the guard mal-functioned in three successive tests. Mr. Hoyas further stated that the workplace configuration did not lend itself to using the ring guard.

Mr. Stevens stated that in riveting shoulder straps to the bag, the operator first places the tab and strap assembly on the anvil and aligns them. The strap is attached to a metal loop, which extends above the strap. He stated that the thickness of the strap assembly and the height of the metal buckle at the point of operation would prevent the ring guard from descending and offering any protection.

Mr. Juechter, a design and mechanical engineer, also concluded that the point of operation of Respondent's rivet machines could not be guarded by any guarding device. He stated that since the materials riveted together are not uniform in shape, quality or thickness, and since many pieces are large and supported on a single point, that no device would work to guard the point of operation. Mr. Juechter's opinion was confirmed by Mr. Stevens who also thought the ring guard would prevent the machine from operating because [*30] of the location of the pieces at the point of operation.

Mr. Stevens and Mr. Hoyas both testified why other types of guarding devices also would not work. Mr. Stevens stated that a two-hand trigger guarding device could not be used since both hands were needed to hold the bag on the anvil, that a barrier around the bumper or handle would prevent positioning the work, and that a sweep device would sweep work away from the area. He did not know of a safer way to operate these machines. Mr. Hoyas stated that the workplace configuration and the nature of the work being processed would not allow either an interlock, noninterlock, or movable interlock guard to be used. He continued that two hand controls also were not feasible since the operator must position the work with his hands, and that a pull-back or restraining device would not make the operation any safer since it would be difficult to control the amount of restraint such a device would impart to employees.

The majority concludes that the burden is on Respondent to prove that guarding its machines is "impossible." I believe it is more appropriate to speak, as the courts of appeals do, of permitting the employer to show that [*31] compliance with a standard is "infeasible." Faultless Division, Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740 (7th Cir. Mar. 30, 1982); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978); Ace Sheeting and Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3d Cir. 1976). To impose on an employer a burden of proving impossibility is to impose a burden that is unachievable. Moreover, considering only whether compliance with a standard is literally possible precludes consideration of practical problems associated with compliance. Permitting an employer to defend on the grounds that compliance is infeasible permits practical considerations to be taken into account.

The Secretary presented general testimony that the ring guard was the type of guard most commonly used for riveting machines. Respondent then presented evidence specifically explaining why the use of such guards would be infeasible for its operations. Respondent raised two basic objections to the ring guard: the guard would not provide any protection in certain of Respondent's operations, and the guard was generally [*32] unreliable and could not be relied upon to prevent the cycling of a machine when part of an employee's hand was in the point of operation. The Secretary did not attempt to rebut this evidence, but argues that it is not probative because of the asserted lack of qualifications of Respondent's witnesses to offer such testimony. The Secretary also contends that the fact Respondent did not attempt to guard its machines prior to the inspection detracts from the weight that should be afforded Respondent's evidence.

I conclude that Respondent has presented sufficient evidence that guarding is infeasible that the burden shifted to the Secretary to rebut this evidence. As the Secretary failed to present any rebuttal, Respondent has established his defense of infeasibility.

The testimony of Respondent's witnesses establishes that use of the ring guard would not provide any protection in certain riveting operations and would be unreliable in those operations for which it could be used. Contrary to the Secretary's argument, this testimony is entitled to the probative and controlling weight which the judge accorded it since the record reveals that Respondent's witnesses were qualified to [*33] offer their testimony. Moreover, the Secretary's enforcement officials, who testified concerning the efficacy of the ring guard, had no experience in luggage manufacturing and had not seen a ring guard used in that industry. Accordingly, their testimony that Respondent could use ring guards is not more persuasive than the contrary testimony of Respondent's witnesses. Ultimate Distribution Systems, Inc., 82 OSAHRC    , 10 BNA OSHC 1568, 1982 CCH OSHD P26,011 (No. 79-1269, 1982) (Rowland, Chairman, dissenting).

The fact that Respondent did not test the ring guard in all of its operations prior to the inspection is not, standing along a valid reason to conclude that the testimony of Respondent's witnesses is unreliable. Prior to this inspection, the Secretary had taken the consistent position that Respondent's riveting machines did not require point of operation guarding, and it was the consistent practice in the luggage manufacturing industry to operate riveting machines without point of operation guarding devices. Thus, there was no reason for Respondent to test guarding devices. Moreover, Respondent was not indifferent to the potential hazard its machines presented and had [*34] protected its employees as well as possible by covering the foot pedals used to activate the machines, placing the foot pedals a foot or two away from the point of operation to prevent inadvertent cycling, and giving instructions to employees on how to safely operate these machines. The evidence of the low frequency of accidents shows that these measures were effective. Thus, the record shows that Respondent has done all that is feasible to protect its employees, and the citation should be vacated.