GENERAL MOTORS CORP., ROCHESTER PRODUCTS DIVISION

OSHRC Docket No. 78-2894

Occupational Safety and Health Review Commission

March 31, 1981

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Wallette Bancroft Rogers, General Motors Corporation, for the employer

Garath Tubbs, Health & Safety Rep., United Automobile Workers of America, Local 846, for the employees

Joe Musson, Health & Safety Rep., International Union, UAW-G-M, Local 1097, for the employee

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission for review 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 Furcolo concluded that Respondent, General Motors Corporation, Rochester Products Division, violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to guard points of operation on certain machinery as required by the standard at 29 C.F.R. §   1910.212(a)(3)(ii). n1 The judge also concluded, however, that the violation was de minimis in nature rather then serious as alleged by the Secretary. n2 The Secretary petitioned for review of the judge's determination that the violation was de   [*2]   minimis, and Commissioner Cottine granted the Secretary's petition.   We affirm the judge's disposition.

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n1 §   1910.212 General requirements for all machines.

(a) Machine guarding.

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(3) Point of operation guarding.

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(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.

n2 In the text of his decision, the judge stated that the violation was other than serious.   However, in his order he affirmed the citation as a de minimis violation.   The Secretary argues that the judge intended to find that the violation should be characterized as other than serious rather than de minimis. However, our independent review leads us to the conclusion that the violation is properly characterized as de minimis. We therefore need not be concerned with whether the judge's order was inadvertent.

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I

The machine at issue uses a conveyor to move carburetor bodies to and from each of ten stations along its circular route.   Each station has a plugger and a spinner. The plugger has mechanical "fingers" that insert metal plugs into holes in the carburetor bodies.   The spinner then turns the plugs into the carburetor bodies to seal the openings.   Prior to the citation at issue, Respondent had installed guards at each of the ten stations. At the time of the inspection in this case, however, the guards at three of the stations had been removed for repair and had not been replaced.

Three employees are required in the operation of the machine. One employee places the carburetors on the conveyor.   Another removes the carburetor from the conveyor at the end of the ten station cycle. The third employee, a "set-up" person, places the proper tooling at the stations and performs minor maintenance if the machine breaks down. n3

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n3 A fourth employee, a maintenance worker, is at the machine only when called by the set-up person.

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The normal operation of the machine is completely automatic.   In other words, employees have no regular tasks to perform at any of the ten stations. The duties of the set-up person, however, require that he or she periodically check the operation of the machine. In doing so the set-up person comes within one to two feet of the point of operation of whatever station is being checked.   According to Respondent's supervisor of safety, "it is not unusual for jam-ups to occur, or malfunctions to occur." The set-up person corrects these conductions and, while doing so, the machine is "[m]ost normally" shut down.

The compliance officer who inspected Respondent's worksite on behalf of the Secretary of Labor ("the Secretary") was of the opinion that the unguarded points of operation between the pluggers and spinners and the carburetor bodies created a hazard because an employee could get a hand caught in the moving machinery.   He testified that in the event of contact with any of the points of operation a person could receive "various injuries to the limbs" and such contact would "cause possibly minor fractures [*5]   and at least breaking of tissue, severing of the tissue."

Respondent's supervisor of safety testified that, in his opinion, the cited standard requires point of operation guarding only when an employee loads and unloads parts at the point of operation. He thought that the machine at issue did not present a hazard to employees because it was not manually fed at the point of operation. Respondent's supervisor further testified that the guards already in place on the machine were installed in accordance with Respondent's "very conservative" policy of "guarding beyond what might be specifically interpreted as required by law."

II

On review, the Secretary argues that the judge properly found that Respondent's machine failed to comply with the cited standard, but that the violation was other than serious rather than de minimis. The Secretary contends that a de minimis violation only exists where there is a negligible relationship to employee safety.   According to the Secretary, that is not the situation in this case.   The Secretary argues that Respondent's operating procedure, which includes observing the unguarded stations of the machine while it is operating, exposes [*6]   the set-up person to injuries such as minor fractures and severing of tissue. The Secretary argues further that the existence of a hazard under such circumstances is borne out by the fact that the Respondent at one time had provided guards for all ten stations. The Secretary concludes that the violation in this case presents a direct and immediate relationship to safety and health and that the violation should be affirmed as an other than serious violation.

Respondent relies on its brief before the judge.   That brief does not address the issue of whether the violation is de minimis but argues, based on the testimony of Respondent's supervisor of safety, that the cited machine did not violate the Act as alleged.

The Commission has held that a violation is properly classified as de minimis when the hazard is trifling or bears a negligible relationship to employee safety or health.   Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979); Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978).   Although employees were exposed to the possibility of contact with the moving [*7]   machine parts, the hazard was trifling. n4 Because employees did not work directly at the points of operation during normal operation, and the machine was generally shut down when malfunctions were being corrected, the possibility of contact with moving machine parts was slight. Moreover, such contact would at most result in a minor injury.   The pluggers and spinners did not perform any operation that would require great force, such as cutting or forming.   They simply placed and secured metal plugs in the carburetor bodies.   Because such operations require relatively little force, we infer that injuries from contact with the moving parts would be limited to relatively minor cuts and bruises.   The compliance officer's opinion that fractures could result is unsupported by any evidence of record or by any description of the manner in which such injuries could occur.   The opinion therefore lacks probative value.   Cf. Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1111, 1979 CCH OSHD P23,358 at p. 28,267 (No. 76-357, 1979) (Commission will not credit testimony that the means of protection required by a standard will be hazardous when there is no explanation of the nature [*8]   of the hazard and no basis for the opinion is offered).   In view of the slight possibility of an injury coupled with the minor nature of an injury that would occur, the hazard is trifling and the violation is properly classified as de minimis.

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n4 Acting Chairman Barnako would find that Respondent's employees were not exposed to the possibility of contact with the moving machine parts.   He concludes that the Secretary failed to prove that Respondent's machine posed a hazard within the meaning of the standard, and that the Secretary therefore did not sustain his burden of proving a violation of the standard.   See Rockwell Int'l Corp., 80 OSAHRC    , 9 BNA OSHC 1092, 1097, 1980 CCH OSHD P24,979 at p. 30,846 (No. 12470, 1980).

During the normal operation of the machine, employees have no function to perform except to observe the machine's operation.   There is no evidence that during the operating cycle employees ever attempted to perform any adjustment on the machine or otherwise placed their hands near the point of operation. Accordingly, there is no evidence that employees are exposed to injury during the normal automatic operation of the machine. See Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1964 n. 6, 1979 CCH OSHD P24,074 at p. 29,238-39 n. 6 (No. 76-4520, 1979).

The set-up person is required to make adjustments at the point of operation in the event of a machine malfunction. Respondent's supervisor of safety testified, however, that during such times the machine is normally shut down. Thus, when the normal procedure is followed, the employee is not exposed to a hazard. The Secretary has not attempted to establish that Respondent's employees ever deviated from this normal practice.   The Secretary did not, for example, ask the safety supervisor whether he knew of instances in which employees had attempted to correct a malfunction while the machine was operating.   Acting Chairman Barnako therefore concludes that the Secretary failed to show Respondent's employees were exposed to a hazard while they made adjustments to the machine.

Acting Chairman Barnako also rejects the Secretary's argument that the existence of a hazard is demonstrated by the fact that Respondent had previously provided guards for the machine. Respondent's explanation that it provided the guards in accordance with its conservative safety policy is plausible, and the Secretary offered no evidence to rebut this explanation.   Moreover, the Act seeks to encourage voluntary efforts on the part of employers to achieve safe workplaces, and it would be contrary to this intent to use evidence of such efforts as the sole evidentiary basis for finding an employer in violation.   Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978).

Because the Secretary failed to prove that the operation of Respondent's machine exposed employees to a hazard, Acting Chairman Barnako would vacate the citation.   In order to form a majority to dispose of the case, however, Acting Chairman Barnako agrees to the entry of an order affirming the citation as a de minimis violation.   Such an order carries no penalty and does not require abatement, so that the ultimate effect is no different from an order vacating the citation in its entirety.   See Westburne Drilling, Inc., 77 OSAHRC 79/C11, 5 BNA OSHC 1457, 1977-78 CCH OSHD P21,814 (No. 15631, 1979).

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Accordingly, the citation for failure to comply with the standard at 29 C.F.R. §   1910.212(a)(3)(ii) is affirmed as a de minimis violation.   We do not assess a penalty or order abatement.   SO ORDERED.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The Commission has authority under section 10(c) of the Act, 29 U.S.C. §   659(c), to classify a violation as de minimis where the relationship of the violation to safety and health is so remote as to be negligible. E.g., Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979); Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978); National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD P21,114 (No. 7987, 1976); Van Raalte Co., Inc., 76 OSAHRC 48/B8, 4 NBA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5007, 1976).   However, in this case, the Respondent's failure to guard the cited points of operation has a direct and immediate relationship to employee safety.   Therefore, the violation is not properly classified as de minimis and [*10]   instead should be classified as nonserious.

The administrative law judge who heard and decided this case found that the cited condition "exposed the Respondent's employees to sustaining harm because of the hazard of a finger or hand being caught in the point of operation." The judge's conclusion that the Respondent violated the cited standard was based on "the testimony of the Respondent's supervisor of safety corroborating the OSHA Compliance Officer's opinion that there was a hazard." It is clear from the judge's decision as a whole that the affirmance of Citation No. 1, item 1 as a de minimis violation was inadvertent. n1 It is also clear that the lead opinion's finding of a de minimis violation in this case on the basis of the asserted "slight possibility of an injury coupled with the minor nature of an injury that would occur" is supported by neither the factual record nor Commission precedent.   Accordingly, I dissent.

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n1 See lead opinion, note 2.

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In order to prove a violation of 29 C.F.R. §   1910.212(a)(3)(ii),   [*11]   the Secretary must demonstrate that the point of operation is unguarded and that employees are exposed to injury.   F.H. Lawson Company, 80 OSAHRC 19/A14, 8 BNA OSHC 1063, 1980 CCH OSHD P24,277 (No. 12883, 1980), appeal filed, No. 80-3277 (6th Cir. April 21, 1980).   Uncontradicted evidence in this case establishes that the cited machine was unguarded at three stations where the set-up person observes the machine's operation.   While observing the operation, the set-up person is located within one or two feet of the unguarded points of operation and is exposed to the possibility of contacting the moving parts of the machine. In this respect the case is indistinguishable from 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. Mar. 19, 1980), in which the Commission stated:

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 the operation while in the five-foot wide aisles between the rows of machines. Thus, the tender must come [*12]   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. . . .

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., supra note 4 [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, 1976-77 CCH OSHD P20,302 (No. 4859, 1976).   As the judge observed, the 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.

7 BNA OSHC at 1963, 1979 CCH OSHD P24,074 at p. 29,238. n2 Similarly, in H.B. Zachry Company (International), 80 OSAHRC 69/A2, 8 BNA OSHC 1669, 1980 CCH [*13]   OSHD P24,588 (No. 76-2617, 1980), the Commission stated:

Regardless of whether the employees' description of their usual method of operating the shear or the description of the operation proffered by the compliance officer is accepted, two crucial facts remain: the point of operation of the machine is unguarded and it is possible for either the operator or his helper to place a hand or finger in the point of operation during the operating cycle. The hazard, though remote, exists.   The standard "requires physical methods of guarding rather than methods of guarding that depend on human behavior." 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. Mar. 19, 1980), and cases cited therein.   As we stated in Signode Corp., 76 OSAHRC 43/A2, 4 BNA OSHC 1078, 1079, 1975-76 CCH OSHD P20,575 at p. 24,595 (No. 3527, 1976), "Although there is little chance of an injury if the machines are operated properly, the standard is plainly intended to eliminate danger from unsafe operating procedures, poor training, or employee inadvertence." We find this statement equally applicable to the facts of [*14]   the present case. . . .   We find that the unguarded point of operation posed a hazard that could result in injury in the event of employee carelessness or inadvertence.

8 BNA OSHC at 1674, 1980 CCH OSHD P24,588 at p. 30,166. See also Southwestern Electric Power Company,    OSAHRC   , 8 BNA OSHC 1974, 1975, 1980 CCH OSHD P24,732 at p. 30,445 (Nos. 77-3391 and 77-3890, 1980) (Cottine, Commissioner, dissenting), appeal dismissed, No. 80-3828 (5th Cir. Nov. 18, 1980); Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1975-76 CCH OSHD P20,589 (No. 1263, 1976).   What the lead opinion views as a "slight possibility of injury" is indistinguishable from what the Commission has consistently found to be impermissible exposure to injury.

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n2 The Respondent's supervisor of safety testified that the cited machine in this case is "most normally" shut down when the set-up person attempts to correct a malfunction. This testimony does not suggest that the machine is always shut down when maintenance is performed.

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The compliance officer who conducted the inspection in this case testified that in the event of contact with any of the unguarded points of operation an employee could receive "various injuries to the limbs . . . possibly minor fractures and at least breaking of tissue, severing of the tissue." Although the judge concluded that this testimony did not establish a substantial probability of death or serious physical harm that would support the affirmance of a serious violation under 29 U.S.C. §   666(j), the judge found that the Respondent's employees were exposed to harm.   The judge also noted the corroborating testimony of the Respondent's safety supervisor that "a potential for injury" did exist. n3

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n3 Evidence in this case of prior guarding reveals the Respondent's awareness of the potential for injury created by the unguarded points of operation. See Owens Corning Fiberglass Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295-96, 1979 CCH OSHD P23,509 at p. 28,492 (No. 76-4990, 1979).

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In concluding that [*16]     [*17]   1977-78 CCH OSHD P22,027 (No. 14458, 1977); J.R. Simplot Co., 75 OSAHRC 36/D5, 2 BNA OSHC 1658, 1974-75 CCH OSHD P19,366 (No. 2094, 1975).   Moreover, the judge properly considered the compliance officer's testimony to have been corroborated. n4

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n4 At the same time it rejects the compliance officer's testimony as unsupported by the record and ignores the corroborating testimony relied on by the judge, the lead opinion substitutes its own unsupported inference to conclude that contact with the machine's moving parts would result in minor cuts and bruises.

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The judge's finding that the Respondent's employees were exposed to "harm because of the hazard of a finger or hand being caught in the point of operation" and his finding that "the violation was other than serious" are supported by the preponderance of the evidence and should be adopted.   Citation No. 1, item 1 should be affirmed as a nonserious violation of the Act.