Docket No. 78-5920

YORK HEEL OF MAINE, INC.

OSHRC Docket No. 78-5920

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

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

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Scott A. Lathrop, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). A decision of Administrative Law Judge Ben D. Worcester is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). Judge Worcester vacated a citation issued to Respondent, York Heel of Maine, Inc, ("York"), The citation alleged an other than serious violation n1 of the Act for noncompliance with the standard at 29 C.F.R. § 1910.212(a)(3)(ii). n2 The Secretary of Labor ("Secretary") petitioned for discretionary review of the judge's decision in this case, and the petition was granted by Commissioner Cleary. The questions presented on review are: (1) whether the Secretary proved the existence of a hazard at the point of operation, and (2) whether the Secretary or Respondent has the burden of proof when the defense of impossibility is raised.

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n1 The citation reads "Point (s) of operation of machinery were not guarded to prevent employee(s) from having any part of their body in the danger zone(s) during operating cycle(s): (a) York Wood - U.S.M. beam dinkers did not have two handed controls."

n2 The standard provides:

§ 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.

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Both the Secretary and Respondent filed briefs on review. After considering the evidence and the record before us, we reverse the judge's decision and conclude that the Secretary met his burden of proving a point of operation hazard in this case and that Respondent failed to meet its burden of [*3] proving the defense of impossibility of compliance. We therefore affirm the citation issued to Respondent.

York manufactures shoe heels. The manufacturing process includes the use of a mechanical punch press called a beam dinker. The beam dinker is approximately 5 feet high and 4 1/2 feet wide. The operator stands at the press, positions pieces of leather or rubber on a plastic working surface, holds a metal die on the leather and activates the press with a foot pedal. The beam descends and strikes the die, cutting out a heel. The beam is cast iron, 4 feet long by 20 inches deep. It strikes the die with considerable force, enough to cut out heels from leather or rubber with a thickness between 1/8 inch and 1/4 inch. The dies are 8 to 10 inches high, made of steel and have a cutting edge in the shape of a heel on the bottom. During the operation the operator holds the die with one or both hands. The alleged danger is that the operator's hands could be crushed between the beam and the top of the die.

On November 1 and 2, 1978, Helen DePesa, an OSHA compliance officer, conducted a safety inspection of the York factory. At the hearing in this case, she testified that having [*4] reviewed Respondent's injury records, she found one reported injury attributed to the beam dinker. This injury resulted in the loss of a thumb nail, several stitches and an absence of 25 work days. Bruce Fraser, York's plant engineer, also testified that he knew of this injury, which occurred prior to his tenure at York. He further testified that during the operation of the beam dinker the operator's hands would be in the danger zone. Fraser testified that there was approximately a 1/2 inch clearance between the top of the die and the beam. Both Fraser and DePesa testified that there was a 1 inch flange around the top of the dies used by York.

Mr. Clayton Rose, an OSHA compliance officer, was proffered by the Secvetary as an expert witness in the area of operator safety and punch presses. After he testified to his qualifications, Rose stated that the beam dinkers described by Fraser did present a "point of operation hazard." He stated that there was nothing, including the flange, to prevent the operator's fingers from coming over the top of the die and being crushed or amputated when the beam strikes the die.

Rose went on to describe two ways of modifying the beam dinkers [*5] that would bring York into compliance. n3 Both methods include the use of a two-handed triggering device, which would keep the operator's hands out of the point of operation by requiring the operator to use both hands to activate the machine. The first modification Rose proposed also included a flexible handle with an activation button for positioning the die, thus eliminating any necessity for the operator's hands to be under the beam. The second included the addition of a tripod stand to the dies which would permit the positioning of a die prior to the activation of the beam. In response to the judge's questions, Rose testified that he had not seen either modification in practice, but he stated that, based on mechanical engineering principles, the modifications would work.

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n3 There was some additional testimony describing two other machines, the clicker and the hydronic, that could replace the beam dinker. Rose conceded that the production capacity of either of these two alternatives was not as high as beam dinkers.

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In his decision, Judge Worcester concluded that the Secretary had failed to prove his case. The judge questioned the relevance of both Fraser's and DePesa's testimony regarding an injury sustained by an operator on the beam dinker in the absence of records to substantiate the injury. He found that compliance officer DePesa had no knowledge of the hazards involved in beam dinker operation. The judge also declined to accept Rose as an expert stating, "A full-time inspector who has neither an engineering degree nor mechanical engineering experience is not an expert." The judge added that even if Rose were an expert, in his testimony he conceded that the proposed modifications to the beam dinker might not work. Accordingly, the judge vacated the citation.

III

On leview, the Secretary contends that the uncontroverted testimony of York's plant engineer, Fraser, standing alone proves the existence of a point of operation hazard. He maintains that Fraser admitted an operator's hands would be under the beam as it descends and strikes the die. The Secretary argues that this, combined with Fraser's testimony concerning the past injury to an employee of York, meets the burden [*7] of proving a point of operation hazard.

The Secretary argues that A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978), aff'g, 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD P21,573 (No. 12501, 1977) ("Burgess"), is dispositive of the issue of the existence of a hazard at the point of operation. The Secretary argues that the Burgess court affirmed a Commission finding of a point of operation hazard involving the same machine model, the same standard, and the same expert even though the same judge, Judge Worcester, had concluded initially that the beam dinker did not present a hazard. The Secretary also argues that Burgess is dispositive of the issue of Rose's status as an expert because Rose was found to be an expert by the Commission in Burgess on the same subject matter for which he was proffered as an expert in this case.

The Secretary urges that the judge erred in placing the burden of proving the possibility of compliance on the Secretary and that, instead, the burden should be on Respondent to prove impossibility of compliance as an affirmative defense. Finally, the Secretary argues that the judge's comments concerning Ms. DePesa's [*8] mechanical knowledge are "unbecoming a judicial officer" and requests that the portion of the judge's decision containing the comments be stricken.

Respondent argues on review that the Secretary has failed to meet his burden of proving both that a point of operation hazard exists and that the flange at the top of the dies did not protect the operator's hands. York asserts that the record contains insufficient proof of a hazard since neither the inspecting officer nor the Secretary's expert saw the beam dinkers in operation. York maintains that this observation is critical because there was no evidence introduced to show that the space between the beam and the die was large enough to accommodate the hand of the operator. Respondent further argues that its plant engineer's testimony concerning both the existence of the hazard and the prior injury should have been precluded by Federal Rules of Evidence 602, Lack of Personal Knowledge, and 701, Opinion Testimony by Lay Witnesses. n4 Respondent contends that if these Federal Rules of Evidence had been followed there would have been no probative evidence of a hazard. It further argues that even a 1/2 inch clearance between the beam [*9] and the die, as estimated by the plant engineer, does not constitute a hazard. Finally, York contends that even if the Secretary had met his burden of proving a point of operation hazard, he failed to prove that York's guard device, the 1 inch flange, did not abate the hazard.

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n4 The rules provide:

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

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Section 1910.212(a)(3)(ii) requires that points of operation which expose employees to injury be guarded and that the guarding devices meet minimum criteria, that is, they must "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." Once the Secretary has established a prima facie case of noncompliance with section 1910.212(a)(3)(ii), Respondent has the burden of either rebutting that proof or proving an affirmative defense. See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978).

In this case the Secretary called three witnesses - Rose, Fraser and DePesa - to testify regarding the existence of a point of operation hazard. Both Rose and Fraser testified that the operator's hands would be under the beam as it descended during the operating cycle. Rose further testified that in his opinion, even with the flange on the die there was a hazard because the flange did not constitute an adequate guard within the meaning of the cited standard. Fraser and DePesa also testified that there had been an accident prior [*11] to the inspection. If this testimony is admissible the Secretary met his initial burden of establishing York's noncompliance with the standard at 29 C.F.R. § 1910.212(a)(3)(ii).

Rose was proffered as an industrial safety expert with respect to the design and operation of machines such as the beam dinker at issue. Judge Worcester declined the proffer on the grounds that Rose did not have either an engineering degree or the necessary mechanical engineering experience. The judge also found and Respondent contends on review that the testimony offered by Rose was not competent because he did not see the beam dinker in question. For the following reasons, we find that the judge erred in both respects.

Rule 702 of the Federal Rules of Evidence n8 allows great flexibility in qualifying an expert. The proponent of the expert need only demonstrate that because of his or her background the witness will assist the trier of fact in understanding the evidence or determining a fact in issue. Rose had design drafting experience with a manufacturing company prior to his 13 years as an industrial safety inspector, first in the private sector and more recently with OSHA. He is a graduate [*12] of a technical institute, has taken postgraduate courses in his field, and is a member of several associations of safety professionals. He has considerable experience in inspecting a variety of mechanical presses, including beam dinkers. Finally, the First Circuit Court of Appeals affirmed the Commission's reversal of Judge Worcester on this precise issue, involving the same expert and a beam dinker. A.E. Burgess Leather Co., supra. Therefore, the judge erred in not accepting Rose as an expert in this case.

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n8 The rule provides:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

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Rule 703 of the Federal Rules of Evidence n9 allows the expert to base his or her opinion on facts or data "perceived or made known to him at or [*13] before the hearing." This clearly excepts the expert from a requirement of first hand knowledge or observation. Thus, Rose's testimony concerning the existence of a hazard was admissible and should not have been discredited because he did not observe the beam dinker.

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n9 The rule provides:

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

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The judge also found and Respondent contends on review that the testimony of both Fraser and DePesa regarding the recorded injury was irrelevant and hearsay. We disagree. Proof of the occurrence of injuries is probative of the existence of a hazard although not conclusive. Signode Corp., 76 OSAHRC 43/A1, 4 BNA OSHC 1078, 1975-76 [*14] CCH OSHD P20,575 (No. 3527, 1976). The testimony is relevant as it tends to prove a fact in issue, i.e., the existence of a hazard. Cape & Vineyard Div., New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); Fed. R. Evid. 401. n10 Further, as to DePesa's testimony, we note simply that hearsay is admissible in administrative hearings. Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979); see also Richardson v. Perales, 402 U.S. 389 (1971). Thus, the testimony of DePesa regarding both the existence of the hazard and the past injury was admissible. In any event, Fraser admitted at the hearing that an injury had occurred. Based on the testimony of Rose, Fraser, and DePesa, n11 we find that the Secretary met his burden of proving that Respondent failed to comply with the cited standard.

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n10 The rule provides:

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

n11 Acting Chairman Barnako would not base a finding solely on uncorroborated hearsay. Paramount Plumbing & Heating Co., 77 OSAHRC 79/D14, 5 BNA OSHC 1459, 1977-78 CCH OSHD P21,820 (No. 12652, 1977), petition for review withdrawn, No. 77-4133 (2d Cir. Nov. 15, 1977). However, DePesa's testimony regarding the recorded injury is corroborated by Fraser's admission.

[*15]

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The burden of going forward then shifts to Respondent either to rebut the Secretary's showing or to prove an affirmative defense, in this case the affirmative defense of impossibility. Hughes Brothers, Inc., supra. Respondent has not sustained its burden in either matter.

We find no merit to the contentions of Respondent that the flanges around the tops of the dies abated the hazard and that the 1/2 inch clearance between the die and the beam does not constitute a hazard. The 1/2 inch clearance existed despite the presence of the flange, and the record establishes that at least the operator's fingers could fit in the 1/2 inch gap. n12 The standard at section 1910.212(a)(3)(ii) requires that mechanical guarding devices be so designed as to physically prevent the operator's hand from coming into the point of operation or physically prevent exposure to injury; partial protection is inadequate. E.g., Dayton Tire & Rubber Co., 80 OSAHRC , 8 BNA OSHC 2086, 1980 CCH OSHD P24,842 (No. 16188, 1980), petition for review docketed, No. 80-3755 (6th Cir. Nov. 25, 1980). There is no such [*16] guarding here.

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n12 In support of its argument Respondent cites two Commission decisions - Collator Corp., 76 OSAHRC 32/A2, 3 BNA OSHC 2041, 1975-76 CCH OSHD P20,446 (No. 2004, 1976); and Queen City Sheet Metal & Roofing, Inc., 75 OSAHRC 2/A2, 3 BNA OSHC 1696, 1975-76 CCH OSHD P20,130 (No. 4322, 1975). These cases do not support Respondent's position. Collator involved a maximum clearance of one-quarter inch. In Queen City, the point of operation was only large enough to receive sheet metal a few thousandths of an inch thick. Respondent also cites MacMillan Indus., Inc., 77 OSAHRC 60/C3, 5 BNA OSHC 1549, 1976-77 CCH OSHD P20,984 (No. 76-135, 1977); and Hudson Optical Co., 78 OSAHRC 58/C10, 6 BNA OSHC 1847, 1978 CCH OSHD P22,865 (No. 76-1887, 1978). Both are unreviewed judge's decisions, which are 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). We note, however, that the clearances in those cases also do not support Respondent's argument.

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Respondent did not offer any proof tending to show impossibility of compliance. n13 On the other hand, the unrebutted testimony of Rose demonstrates that there are at least two modifications to the beam dinker that would bring York into compliance. Thus, Respondent has failed to establish the affirmative defense of impossibility of compliance.

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n13 Respondent argues that the violation should not be affirmed because compliance is not "feasible." The Commission has held with respect to the cited standard that it is not enough for an employer to show that compliance is difficult, expensive, or would require changes in modes of production. Hughes Bros., Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1836, 1978 CCH OSHD P22,909 at 27,720 (No. 12523, 1978). We, therefore, construe Respondent's argument to be an assertion of the affirmative defense of impossibility of compliance. The elements of the impossibility defense are two-fold: that compliance is impossible; and that available, alternative protective means are used. Id.

In his concurring opinion in Research Cottrell, Inc., 81 OSAHRC , 9 BNA OSHC 1489, 1981 CCH OSHD P25,284 (No. 11756, 1981), Acting Chairman Barnako concluded that an employer can defend on the ground that compliance with a standard would be economically infeasible. However, no evidence of economic infeasibility was presented in this case. Accordingly, Acting Chairman Barnako would not vacate the citation on the ground of economic infeasibility.

[*18]

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Accordingly, we affirm an other than serious violation of the Act for failure to comply with the standard at 29 C.F.R. § 1910.212(a)(3)(ii) for Respondent's failure to guard the points of operation of its beam dinkers.

Finally, we address the Secretary's specific request that a sentence in Judge Worcester's decision be deleted. The sentence reads as follows, "Ms. DePesa, who made this cursory inspection was observed to be a lady past middle age whose knowledge of machinery, if any, is unknown." The Secretary argues that this is language "unbecoming a judicial officer."

In our decision in Plum Creek Lumber Co., 80 OSAHRC / , 8 BNA OSHC 2185, 1980 CCH OSHD P23,317, (No. 78-1485, 1980), we denied a request from the Secretary to expunge portions of the transcript. We noted that pursuant to section 12(g) of the Act, 29 U.S.C. § 661(f), "[e]very official act of the Commission shall be entered of record, and its hearings and records shall be open to the public." The decisions of the Commission and its judges are public records. The record would be incomplete and may be inaccurate if any portion [*19] of the decision were to be expunged. Therefore, we decline to do so. Nevertheless, we disapprove of Judge Worcester's statement apparently questioning the credibility of a witness on the basis of age or sex. There is no evidence of record to even suggest that Ms. DePesa was not a credible witness.

No penalty was proposed by the Secretary for the other than serious violation in this case. Applying the penalty factors in section 17(j) of the Act, 29 U.S.C. § 666(i), we find the gravity of the violation to be low and no history of prior violations. On balance we find it appropriate to assess no penalty.

Accordingly, we reverse the decision of the judge and affirm an other than serious violation of the Act for failure to comply with the standard at 29 C.F.R. § 1910.212(a)(3)(ii). We assess no penalty.

SO ORDERED