LONG MANUFACTURING COMPANY, N.C., INC.
OSHRC Docket No. 9994
Occupational Safety and Health Review Commission
April 28, 1976
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
T. A. Housh, Jr., Regional Solicitor, USDOL
Michael L. Roeder, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
The issues in this case are whether Judge Vernor Riehl erred in finding that Respondent (Long) had (1) failed to abate a violation of 29 C.F.R. 1910.212(a)(3)(ii) n1 with respect to two press brakes, and (2) repeatedly violated the same standard with respect to a mechanical punch press. Having affirmed the charges, the Judge assessed penalties of $5000 for the press brakes and $350 for the punch press. We have reviewed the entire record. For the reasons which follow, we affirm his decision with respect to the press brakes, but reverse as to the punch press.
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n1 This standard states:
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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n2 In holding that the standard was applicable to press brakes, we reaffirmed our earlier decision in Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608, BNA 3 OSHC 1018, CCH OSHD para. 19,523 (1975), pet. for review filed, No. 75-2159 (9th Cir., May 27, 1975).
n3 In Diebold, the Commission held that § 1910.212 was not applicable to mechanical punch presses because a more specific standard, 29 C.F.R. 1910.217, applied. Under § 1910.217, however, Long's punch press, having been installed prior to August 31, 1971, was not required to be guarded at the point of opeation until August 31, 1974. Stevens Equipment Co., 2 OSAHRC 1501, BNA 1 OSHC 1227, CCH OSHD para. 15,691 (1975). The alleged violation occurred on August 28, 1974, prior to the date guarding of the punch press was required.
Commissioner Cleary dissents from this holding. He would overrule Stevens Equipment for the reasons stated in his separate opinion in Trojan Steel Co., 3 BNA OSHC 1384, CCH 1974-75 OSHD para. 19,839 (No. 2885, July 18, 1975). See also Queen City Sheet Metal & Roofing, Inc., 3 BNA OSHC 1696, CCH 1975-76 OSHD para. 20,130 (No. 4322, November 6, 1975) (dissenting opinion). He would amend the pleadings to conform to the evidence under Fed. R. Civ. P. 15(b) and, with regard to the punch presses, he would find a failure to comply with § 1910.217.
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The relevant facts are as follows. Long manufactures farm equipment at a plant in Davenport, Iowa. On June 20, 1973, Long was issued a citation charging, inter alia, failure to guard the point of operation of the two press brakes. The citation established an abatement date of July 13, 1973. This citation was not contested and became a final order of the Commission. n4 Subsequently, Long was granted an extension of the abatement date until June 14, 1974.
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n4 29 U.S.C. 659(a).
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Long's plant was reinspected on August 28, 1974, Prior to that date, Long had installed dual controls at the operators' stations of the machines. n5 The controls consisted of electric switches actuated by pressure from the palm of the hand (palm buttons). Unless both palm buttons at all operator's station of a particular machine were depressed simultaneously, the machine would not operate. The ostensible purpose of this arrangement was to require that both hands [*4] of each operator would be on the palm buttons, and therefore away from the point of operation, when the machines were operated.
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n5 One machine had three operators' stations, and the other had two.
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The palm buttons at each operator's station, however, were separated by only 5 1/4 inches, and were so arranged that both could be depressed with one hand. Long's supervisory personnel knew that the dual buttons could be, and sometimes were, operated with only one hand. Despite this knowledge, no steps to make one-hand operation impossible were taken until after the August 28, 1974 reinspection.
There were also considerable testimony regarding the use of "dummy" buttons during the third shift. n6 The palm buttons could be rendered inoperative by plug-in devices which would short circuit them. If this was done to a particular button, then the machine could be operated without depressing that button. Long had these devices available in order that the switches at some of the operators' stations could be bypassed. The [*5] machine could then, as was sometimes necessary, be operated from a single station.
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n6 Long's plant operated 24 hours per day. The third shift ran from 11:00 p.m. to 7:00 a.m.
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The plug-in devices could also, however, he used to defeat the dual control system by converting one button at each station into a dummy. A number of employees who operated the press brakes during the third shift testified that they commonly operated the machines using dummy buttons, and that this practice was known, sanctioned, and even on occasion ordered by the shift foreman, n7 On July 30, 1974, one employee on the third shift had a finger amputated while operating one of the press brakes using a dummy button.
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n7 The foreman disclaimed sanctioning the use of dummy buttons, but the trial Judge found his testimony to be not credible.
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It is undisputed that the use of dual controls [*6] is an acceptable method of guarding. Complainant argues, however, that the installation of the palm buttons in such a manner that they could be operated with one hand was not sufficient to comply with the standard. Long contends that it did attempt to abate the violation by the installation of dual controls and that, if its efforts were inadequate, this was due to the absence of specific instructions regarding how to comply with the standard. We agree with Complainant. For the purposes of this case, it is sufficient to note that Long's supervisory personnel knew that the dual controls could be and sometimes were being operated with one hand. Obviously, dual controls only provide the required protection when both of the operator's hands are used to actuate them. Thus, Long knew that its employees were not receiving the protection intended by the standard. n8
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n8 On reinspection the compliance officer suggested, among other things, that the dual buttons could be separated by barriers. The barriers were installed the day after reinspection.
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We turn now to the assessment of an appropriate penalty. n9 In assessing all penalties, we must consider the gravity of the violation, along with the size, prior history, and good faith of the employer. n10 The Judge found that Long had exhibited a casual attitude toward the safety of its employees, and had not acted in good faith. These findings are supported by the record. In particular, we note that, even though Long was put on notice by the amputation of an employee's finger that its guarding system was not fully effective, it did nothing to correct this until almost a month later, after the reinspection. n11
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n9 A penalty of up to $1,000 may be assessed for each day the violation continued past the abatement date. 29 U.S.C. 666(d). In this case, 74 calendar days elapsed between the abatement date and the date of the reinspection.
n10 29 U.S.C. 666(i).
n11 Long points to its institution of a safety program after the original inspection as evidence of its good faith. A safety program, however, must be adequately implemented in order to be effective, and this record shows a serious deficiency in the implementation of Long's program.
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The violation was of high gravity in that serious injury could result, and a number of employees were exposed for a considerable length of time. Furthermore, Long is not a small employer since it employs approximately 1500 employees nationwide, and 175 at the Davenport plant. Having considered the statutory factors, we conclude that the Judge's assessment of $5,000 is appropriate. n12
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n12 our colleague suggests that a penalty of $5,000 is excessive. He cites certain evidence regarding the efforts taken by Long to comply with the standard, and finds Long's efforts to have been commendable.
We do not reach the same conclusion. There was considerable evidence regarding Long's efforts to comply with the standard, including that discussed by our collegue. After weighing all the evidence, and having considered the credibility of the witnesses, the trial judge found that Long "has been almost completely indifferent to the enforcement of safety program in conformance with the standards." We will not reject the judge's evaluation of conflicting evidence in the absence of a compelling reason to do so. Okland Construction Co., OSHRC Docket 3395, BNA 3 OSHC 2023, CCH OSHD para. 20,441 (Feb. 20, 1976). There is no such reason in this case. Although Long made some effort to comply, it was granted an extension of the abatement date of almost a year. This should have been sufficient time to resolve any difficulties in determining an adequate means of compliance. And if nothing else indicated that its efforts were inadequate the loss of an employee's finger should have shown that its guarding devices were not "designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle," as required by the standard.
We also note that the penalty is considerably less than the maximum which could be assessed. The failure to abate period in this case is 74 days, and the penalty we assess is approximately $70 per day.
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Accordingly, the Judge's decision is reversed insofar as he found a violation and assessed a penalty with respect to the punch press. In all other respects, the Judge's decision is affirmed. It is so ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
I agree with vacation of the citation pertaining to the punch press. I disagree, however, with the affirmance of the charge involving respondent's press brakes.
1910.212 rather than 29 C.F.R. § 1910.217 is erroneous for reasons I stated in those decisions. See also my dissenting opinion in Secretary v. Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975).
[*10] they accept electric switches as "an acceptable method of guarding" and proceed to hold respondent liable for a violation even though it had not previously been put on notice of what corrective action it should take to eliminate the alleged unsafe conditions. This is obviously unjust.
During the first inspection, the inspector simply told respondent to do "something." After the inspection, respondent's safety director contacted the regional office of the Occupational Safety and Health Administration (OSHA) for "direction and guidance in terms of what we could do with out particular problems in our plant." The regional director did not give him any specific directions on how to abate but simply suggested that he contact two plants in the area for some "ideas." Respondent followed this suggestion only to learn that the safety measures used in those plants could not be utilized in respondent's plant because the procedures in those plants differed from respondent's. Respondent then, on its own initiative, contacted other plants and trade associations. It finally learned from an association of safety directors that dual controls were a possible alternative. Although, respondent did [*11] not think of the dual controls as "guarding," it decided to install the controls after determining that no known method of guarding could be used on its presses. Thereafter, it was informed at the second inspection that it was not in compliance because the buttons were too close together and could be operated with one hand. Prior to this, respondent had not been told what measures to take and, most certainly, had not been told how to install dual controls.
Despite these uncontroverted facts, Messrs. Barnako and Cleary, with imperious non sequitur, assert (n. 12, supra) that:
"Although Long made some efforts to comply, it was granted an extension of the abatement date of almost a year. This should have been sufficient in determining an adequate means of compliance."
It wasn't time that was needed - it was guidance on what to do. OSHA gave no guidance whatsoever - at least not until the reinspection when they socked them with the $5,000 penalty. It was at that point that OSHA finally suggested a method - and the respondent had it installed on the following day.
In considering another standard which was similar to the instant standard in its vagueness, the Court [*12] of Appeals stated in Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148, 1152 (1st Cir. 1975), that the standard was enforceable only where the violative conduct is "unacceptable in light of the common understanding and experience of those working in the [respondent's] industry." That type of evidence is lacking in this case. Furthermore, a study of the sources of the relevant standards at issue herein show why there is an evidentiary insufficiency in this regard.
American National Standards Institute (ANSI) standard B11.1-1971, "Safety Standards for Construction, Care, and Use of Mechanical Power Presses," was the source of 29 C.F.R. § 1910.217, n13 the standard which my colleagues erroneously hold to be inapplicable to press brakes. The ANSI committee exempted press brakes from the guarding requirements of this standard. The reason for the exemption was subsequently explained with the adoption of ANSI B11.3-1973 for press brakes which indicated in its foreward that compliance by former installations was not required for three years from the date of its approval because of the "impossibility of updating equipment immediately." [*13]
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n13 See 29 C.F.R. § 1910.221.
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In view of the foregoing, the Barnako-Cleary $5,000 pealty-assessment is nothing short of uncorrectionable. To my mind, it reflects the type of penalty-oriented bull-in-the-china-shop approach to safety that has been uniformly rejected (even OSHA has recently begun to turn away from it). I reemphasize that the company eagerly wanted to get information on what it should do but neither the standard nor any governmental official told respondent what it should do to properly guard its press brakes - until reinspection. n14 The respondent then complied - on the following day. I'm sure that any reasonable person would conclude that the initiative displayed by respondent in attempting to discover and install an adequate safety device was commendable - but, incredibly, there are two members of the Commission who label this "bad faith."
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It should be noted, however, that they only apply this rule when it will penalize employers. When acceptance of a Judge's determination will work to the detriment of OSHA - they do just the opposite.
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Messrs. Barnako and Cleary have, with this decision, severely penalized an employer who - faced with no guidance at all from those reaponsible for job safety enforcemenit - goes to great lengths to comply with the law. This is not the first time they have done this - nor is it the first time that OSHA oifficials have told employers to correct hazards without offering any specifics, then cited those same employers because the corrective measures taken did not satisfy OSHA. It is this kind of thing which has kindled the current efforts at regulatory reform and could well have been in the mind of President Ford when he told the Chairmen and Commissioners of the Independent Regulatory Agencies at a July 10, 1975, White House conference:
"I urge you to insure clear communications with the public so they will better understand your actions."
An OSHA Deputy Assistant Secretary, Marshall L. Miller, told the National Advisory Committee on Safety in Agriculture on January 27, 1976, that:
"The best way to reduce hazards . . . is to educate people in the hazards involved and the necessary measures to avoid [*15] those hazards." (Emphasis supplied.)
Nearly anyone familiar with the remedial purposes of this Act and the difficulties resulting from the enforcement approach followed in this case would agree that adherence to the above-quoted statements is necessary if the worthwhile purposes of this Act are ever to be accomplished. Surely OSHA, insofar as this employer was concerned, did not have "clear communications with the public" nor educate this employer in "the necessary measures to avoid those hazards." That doesn't make any difference to Messrs. Barnako and Cleary, however, since their penalty-oriented response to these facts is to assess a $5,000 penalty against this employer for the crime of guessing wrong when the people obligated to give guidance failed to specify an appropriate corrective measure.
A fuller discussion of the facts at issue in this case is contained in Judge Riehl's decision which I attached hereto as Appendix A.
APPENDIX A
STATEMENT OF CASE