ALTON BOX BOARD COMPANY

OSHRC Docket No. 78-187

Occupational Safety and Health Review Commission

May 18, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Bobbye D. Spears, Reg. Sol., USDOL

Larry L. Otten, Mgr. of Safety & Workers Compensation, Alton Box Board Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton 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. Former Commissioner Barnako directed review of the judge's decision to determine whether Judge Patton erred in concluding that the Respondent, Alton Box Board Company, was in violation of the standard at 29 C.F.R. 1910.219(f)(3) n1 for exposing its employees to a hazard of serious injury arising out of the operation of an unguarded drive chain and sprocket mechanism. n2 For the reasons that follow, we modify the judge's decision and conclude that Respondent's violation is de minimis in nature.

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n1 Section 1910.219(f)(3) provides:

1910.219 Mechanical power-transmission apparatus

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(f) Gears, sprockets, and chains

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(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

n2 The only issue directed for review relates to subitem 2(a) of a 3-item citation. Respondent argues in its brief that the classification of the violations in item 1 and subitem 3(b) as serious is erroneous. Those issues were raised by Respondent in its petition for review but were not directed for review and, therefore, are not before us. Henry C. Beck Co., 80 OSAHRC    , 8 BNA OSHC 1734, 1980 CCH OSHD P24,590 (No. 77-963, 1980).

[*2]

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Following an inspection by a compliance officer of the Secretary of Labor ("Secretary"), Respondent was cited for several safety violations at its Jacksonville, Florida paper tube manufacturing facility. One of the allegations involved Respondent's No. 2 spiral machine. The No. 2 spiral machine fabricates paper sheets into paper tubes. The machine's position determines the diameter of the tube. The chain and sprocket mechanism is used to position the spiral machine relative to the rolls of paper to be fabricated into tubes. The chain and sprocket mechanism is engaged only when a change in the diameter of tubing is called for and this occurs irregularly. On some days repositioning occurs three or four times; there are days when no changes are needed. The repositioning, during which the chain and sprocket is engaged, generally requires three to ten seconds and a warning bell is sounded during this operation.

Photographs of the machine were introduced into evidence by both the Secretary and Respondent. The photographs illustrate that the major components of the machine rise from a central structural [*3] support to approximately the waist level of the operator. A chain and sprocket drive runs along the length of the machine approximately in its center. At its lowest point, the chain of the chain and sprocket mechanism runs the length of the machine and is parallel to and several inches above the floor. At its highest point, the mechanism's drive sprocket is approximately twelve inches above the floor. Various structural components of the machine are between the machanism and the position occupied by the machine's operator. In addition, the chain and sprocket mechanism is recessed approximately 24 inches from the side opposite the operator and 15 inches from the end of the machine. The chain and sprocket drive was not enclosed at the time of the inspection. The compliance officer was not concerned that the operator, in his normal position, would be exposed to a hazard posed by the chain and sprocket drive. He testified, however, that there was activity on the side and the opposite end of the machine, and he believed that an employee on either the side or end opposite to the operator's position would be exposed to a hazard associated with the unenclosed chain and sprocket drive. [*4]

The judge, relying on testimony of the compliance officer, found that the chain and sprocket drive of machine No. 2 posed a hazard to Respondent's employees. He concluded that if an employee "was in the area of the chain and sprocket drive, there was nothing to prevent the employee from getting caught in it." Accordingly, the judge affirmed the citation and assessed a penalty of $200.

On review, Respondent argues that the judge erred in concluding that Respondent had committed a violation because the Secretary failed to prove that Respondent's employees were exposed to the unenclosed chain and sprocket drive. Respondent contends that the drive was "guarded by location" and that an injury could result "only from a deliberate and intentional act of an employee." n3 The Secretary did not file a brief on review, but stated in a letter that he would rely on the hearing record and the judge's decision.

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n3 A similar allegation was made by the Secretary with regard to another machine, the No. 1 spiral machine. Judge Patton vacated that portion of the citation dealing with machine No. 1 because he found that despite the fact that the chain and sprocket drive on machine No. 1 was unguarded, it is recessed 16 inches and the likelihood of a person being caught in it is "fairly slim." The Secretary has not sought review of Judge Patton's decision regarding machine No. 1 nor was that portion of the decision directed for review.

Respondent argues in its brief on review that the similarity of the two machines and the judge's vacation of the citation regarding machine No. 1 supports its argument that it was not in violation regarding machine No. 2. We reject the argument. The unreviewed portion of the judge's decision is not precedent binding on the Commission. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). Hence, the Secretary's allegation as to machine No. 2 must stand or fall on its own merits.

[*5]

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We agree with the judge that Respondent failed to comply with section 1910.219(f)(3). The standard requires that all sprocket wheels and chains be enclosed unless they are more than seven feet from the floor or platform, and the chain and sprocket drive of spiral machine No. 2 did not conform to this requirement. We conclude, however, that this violation was de minimis in nature. The Commission has held that noncompliance with a standard properly should be classified as de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate the imposition of a penalty or the entry of an abatement order. Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979) and cases cited therein. In this case the operator of the machine was separated from the chain and sprocket by substantial components of the machine's structure. The photographic exhibits show that employees on the exposed side of the machine or end opposite from the operator were effectively protected from containing the chain and sprocket drive by the [*6] manner in which the drive was recessed. Even the compliance officer did not believe that the chain and sprocket drive posed a hazard to the operator. Moreover, the infrequent, intermittent, short duration of operation of the chain and sprocket mechanism, as well as the warning bell which sounds during such operation, reduce the likelihood of injury from contact with the unenclosed chain and sprocket. Under the circumstances, the hazard to Respondent's employees was negligible.

Accordingly, the classification of the violation found by the judge concerning Respondent's No. 2 spiral machine is modified from serious to de minimis. No penalty is assessed. SO ORDERED.