UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-3766
VAMPCO METAL PRODUCTS, INC.,
Respondent.

October 22, 1980

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge David G. Oringer 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 Oringer vacated two items of a notification of failure to correct violations for failure to guard the points of operation of two press brakes. He did so because he concluded that the feasibility of the guarding methods proposed by the Secretary of Labor (‘the Secretary’) was not established. Chairman Cleary directed that the judge’s decision by reviewed pursuant to Rule 91a(a), 29 C.F.R. § 2200.91a(a).[1]

Vampco Metal Products, Inc. (‘Vampco’) manufactures light and heavy metal products at its plant in Columbus, Ohio. On March 22, 1978, a compliance officer for the United States Department of Labor inspected the plant. As a result, the Secretary issued to Vampco a citation alleging that the company violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to guard the points of operation of a Verson press brake used in light manufacturing and a small Dreis & Krump press brake used in heavy manufacturing. The citation alleged that Vampco failed to comply with 29 C.F.R. § 1910.212(a)(3)(ii).[2] Abatement was required by June 5, 1978.

Vampco did not contest the citation which accordingly became a final order of the Commission.[3] On July 28, 1978, the same compliance officer reinspected the plant and observed that Vampco had not installed point of operation guards on the Verson and small Dreis & Krump press brakes, and one other machine not in issue here.[4] The Secretary therefore issued the notification of failure to correct the violations.

It is undisputed that the press brake operations exposed the operators to fracture, crushing, or amputation hazards to their hands or other body parts and that Vampco had not installed point of operation guards. The parties’ dispute instead centers on the use of five guarding methods mentioned by the compliance officer for Vampco’s consideration—hand pull backs or restraints, two-hand tripping devices, moveable gate (barrier) guards, and presence sensing devices.[5]

Vampco produces metal products entirely according to customer demand and specifications. Frequently only one product, such as a ladder, door, or stairway, is made from one set of specifications. Because of the varying products and specifications, any table or support to hold the metal securely in the correct position at the point of operation would frequently have to be designed specially for the one operation. Therefore the operators hold the metal into the point of operation.

Vampco presented the testimony of its president and production manager about the potential problems of using any of the five guarding methods in these custom operations. The testimony about the hand pull backs and restraints was that they would be, in the phrase of the president, ‘feasible but not practical,’ and would create a hazard. On the practical problems in using pull backs or restraints, the testimony was that the time taken for each operation would be increased because the operator would have to adjust the pull backs or restraints for almost every different operation to allow him to reach far enough toward the point of operation to hold the varying lengths of metal. On the hazard, the testimony was that, by restraining the operator in position near the metal in the press brake, the pull backs and restraints prevent the operator from running out of the way of the metal when it shifts or falls during the operating cycle. According to the production manager, this happens once every two to three weeks. Both witnesses believed that, because of this hazard, the operators would refuse to use pull backs or restraints. The production manager also believed that a tripping hazard would result from use of pull backs or restraints tied sufficiently far from the press brake to allow the operator running room.

The production manager testified that two-hand tripping devices could not be used because the operators must hold the metal during the operating cycle. Both witnesses testified that the company had not installed moveable gate (barrier) guards because the supplier could not, in the words of the production manager, give ‘any definite response that a moveable gate guard would operate satisfactorily under our conditions,’ that is, that the guard would satisfy machine guarding requirements in all operations. The president expressed concern that any opening between the gate guard and the metal being formed would prevent the press brake from cycling. However, the president did not deny that the gate guard can be adjusted to different material thicknesses.[6] Also, despite the concern about the supplier’s inability to give a complete guarantee, the production manager admitted that the company did not ask exactly in what percentage of Vampco’s operations the supplier believed the guard would work.

The production manager testified that presence sensing devices could not be used on the Verson and small Dreis & Krump press brakes because the foot pedals which control the cycling are not electrically controlled. They would therefore have to be modified to electrical control for use of presence sensing devices.

Judge Oringer concluded that the feasibility of guarding methods had not been established.[7] The judge did not, however, specifically consider the evidence on each guarding method except with respect to pull backs and restraints. These he found dangerous in view of the shifting metal. He was ‘convinced that the operators would never use them.’

In Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1834–35, 1978 CCH OSHD ¶ 22,909 at pp. 27,718–19 (No. 12523, 1978), we held that, to establish a violation of section 1910.212(a)(3)(ii), the Secretary is not required to show the feasibility of point of operation guarding methods. Rather, the burden is upon the employer to establish as affirmative defenses that the use of the suggested guarding methods would be impossible or would create a greater hazard.[8] Accord, Amforge Division, Rockwell International, 80 OSAHRC ___, 8 BNA OSHC 1405, 1980 CCH OSHD ¶ 24,439 (No. 76–3488, May 6, 1980) and cases cited therein. We have comprehensively discussed these defenses and applied them to factual situations similar to those in this case. Amforge Division, Rockwell International, supra; F.H. Lawson Co., 80 OSAHRC ___, 8 BNA OSHC 1063, 1980 CCH OSHD ¶24,277 (No. 12883, February 29, 1980) pet. for review filed, No. 80–3277 (6th Cir. Apr. 21, 1980); Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ¶ 24,074 (No. 76–4520, 1979) pet. for review dismissed, No. 80–4013 (2d Cir. March 19, 1980); Hughes Brothers, Inc., supra. Because the judge did not analyze the evidence regarding each of the point of operation guarding methods in terms of these defenses, we set aside his decision and remand the case to him for factual findings and legal conclusions consistent with this opinion. SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATE: OCT 22, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-3766
VAMPCO METAL PRODUCTS, INC.,
Respondent.

June 14, 1979

Appearances:

For the Complainant:

William S. Kloepfer, Assoc. Regional Solicitor

Loretta Quade, Esq., of Counsel

U. S. Department of Labor

881 Federal Office Building

1240 East Ninth Street

Cleveland, Ohio 44199

For the Respondent:

Rankin M. Gibson, Esq.

Lucas, Prendergast, Albright, Gibson, Brown and Newman, Esqs.

42 East Gay Street

Columbus, Ohio 43215

DECISION AND ORDER

ORINGER, JUDGE:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the ‘Act’) to review citations issued by the Secretary of Labor (hereinafter referred to as ‘Complainant’) pursuant to section 9(a) and a proposed assessment of penalty thereon issued, pursuant to section 10(a), of the Act.

This case arose as a result of the service upon this Respondent by the Complainant of a Notification of Failure to Correct violations originally alleged in citations issued as a result of an inspection that took place on March 22, 1978 which mandated abatement by June 5, 1978. The subsequent reinspection upon which this Notification of Failure to Correct was issued took place on July 28, 1978. The items in question alleged violations of the standard set forth at 29 CFR 1910.212(a)(3)(ii) in that the points of operations of three pieces of machinery were not guarded to prevent employees from having any part of their body in the danger zones during operating cycles. The machines involved were the Verson press brake near the center of the west wall, the Dreis & Krump press brake in the heavy manufacturing area and the Chicago Dreis & Krump large press brake in the heavy manufacturing area.

During the trial of this cause, the machines were variously described as the large press brake, the large Dreis & Krump, the small Dreis & Krump and the Verson.

A timely notice of contest to the Notification of Failure to Correct was filed by the Respondent and complaint and answer issued. Eventually, the case came to trial on Tuesday, March 20, 1979, in Columbus, Ohio.

At the end of the case, the Judge asked the parties whether they were going to submit briefs, proposed findings of fact and conclusions of law. In response thereto, Respondent’s counsel stated that he did not believe so and the Complainant’s counsel stated it would depend upon the receipt of the transcript inasmuch as she was going to be out of the office starting May 1st. In view of the probability of no briefs being submitted, and inasmuch as the testimony was fresh in the mind of the Judge and the resolution of the cause seemed to be clear, the Judge advised that if the parties so desired, he would deliver a decision from the bench and both parties agreeing thereto, proceeded so to do.

The issues for resolution were whether the point of operation of the three presses were properly guarded, and if not, was there a feasible means of guarding the point of operation of these machines. In the event a violation was proven, another issue would be the amount of penalty assessed therefor.

OPINION

The original citation which was issued against the Respondent as a result of the inspection on March 22, 1978, alleged serious violations of two standards involving ten machines and two other than serious violations concerning posting. Of the ten machines complained of, any violations connected with seven thereof, appeared to have been abated inasmuch as the re-inspection did not allege failure to correct any violations on those machines.

Insofar as the other three machines were concerned, the proof of record adduced revealed that Respondent did do some guarding, however, it failed to guard the point of operation of the machines. It guarded sides and back of some but the point of operation remained unguarded.

The only witness testifying for the Secretary was the Compliance Officer. He testified concerning the machines, the lack of guarding, the type of guarding that the machines contained and what he believed would be methods of abating the hazard.

The Respondent’s witnesses testified concerning the machines, the attempts to have guarding utilized, the appraisals from companies that do guarding of such machines and, after hearing all of the testimony, it is the opinion of this tribunal that it is feasible, possible and appropriate for the large Dreis & Krump press to be guarded with a present sensing device. The testimony indicates that the guarding will cost under $10,000.00 including the guard plus the affixing of the same on the machine.

Insofar as pullbacks and restraints are concerned, in my opinion, these would be dangerous because of the inability to move in the event metal was flying and because of the hazards, this tribunal is firmly convinced that the operators would never use them.

Insofar as the two small machines are concerned, this tribunal has a doubt whether any of the guards testified to by the Compliance Officer would remedy the hazard. After listening to all of the testimony, Respondent’s witnesses and the Compliance Officer, this tribunal remains unconvinced that in the extant state of the art, the two small presses can have their points of operation guarded in the same means that the large press can be guarded. Specifically, this tribunal is not convinced that in the present condition of the art, these machines could be guarded so as to conform to OSHA requirements so that they would not be cited despite all of the expenditures for such purpose. Accordingly, in the opinion of this tribunal, the allegations of violation for the Verson press and the small Dreis & Krump press must fall.

The Respondent must heed this caveat, however. In the event guarding for these machines is possible or becomes available and the state of the art proceeds to where these two presses could be guarded, then in such case, it is incumbent upon Respondent, to acquire such guarding for those presses.

Insofar as penalty is concerned, the perfect remedy in the opinion of this tribunal, would have been to suspend the operation of $1,700.00 of the $1,800.00 penalty proposed by the Secretary for the failure to abate, on condition that the Respondent abated the hazard on the large press within 120 days of the conclusion of the hearing. The Commission in its wisdom however, has precluded the use of the remedy of suspension of the operation of the penalty despite the fact that the Act gives the Commission power to use such other and further relief as would enhance the furtherance of the Act. Secretary of Labor v. Biltrite Fixture Company, Inc., 74/26/c6 (8/126) BNA OSHC 1:1687 CCH OSHD 17,769.

In the opinion of this tribunal, the perfect solution to this case would be to suspend the operation of $1,700.00 of the penalty which would be used towards the abatement of the hazard. The Commission however, enunciated its opinion to the contrary with strong and cogent reasoning.

Accordingly, this tribunal finds that an appropriate penalty, in view of all elements of section 17(j) of the Act, amounts to $100.00. The undersigned has taken into consideration the fact that the injury history of this company is absent any record of occurrence at the point of operation of any of the presses.

The lack of accident history, however, does not diminish or dilute the obligation of the Respondent to abate a hazard. It is the Secretary’s duty to prevent the first such accident. Leeway Motor Freight, Inc., v. the Secretary of Labor, 511 F2d 864, (10th Circuit 1975); Ryder Truck Lines, Inc., v. Brennan, 497 F2d 230, (5th Circuit 1974).

Having heard the testimony and observed the demeanor of the witnesses and having considered the same, together with the citation, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of the credible evidence of record supports the following

FINDINGS OF FACT

1. The Respondent has employees who regularly and customarily receive, handle or otherwise work on goods that have been moved in interstate commerce or who are engaged in producing goods for interstate commerce.

2. The large Dreis & Krump press is approximately ten years old.

3. There have been no injuries or amputations at the point of operation of any of the machines in question in the past fifteen years.

4. Restraints and pullbacks would not be appropriate to the machines in question as the operators would be in danger of moving steel and would not be able to move rapidly enough to get out of the way using each of these items. Further, it is the opinion of this tribunal that because of the aforementioned fact, the operators would refuse or evade or avoid using them.

5. Insofar as the large Dreis & Krump press is concerned, it is feasible to use a present sensing device to guard the machine and accordingly such guarding must be utilized.

6. At the time of the re-inspection herein concerned, the large Dreis & Krump machine was not guarded.

7. At the time of the re-inspection herein concerned, the Verson press and the small Dreis & Krump were not guarded.

8. This tribunal is not convinced that the proof of record adduced proves feasibility of guarding the Verson press or the small Dreis & Krump press.

9. The Respondent has sustained the burden of proof of showing infeasibility of guarding the small presses given the extant state of the art and the special type of operations used with these machines.

10. The small presses are used approximately one-half hour each day; the large press is used approximately five to six hours daily.

11. The penalty proposed for the failure to correct is excessive and an appropriate penalty is $100.00.

CONCLUSIONS OF LAW

1. The Respondent is an ‘employer’ within the meaning of section 3 (5) of the Act and the Commission has jurisdiction to hear and decide the within controversy.

2. The Respondent failed to correct a violation of the standard set forth at 29 CFR 1910.212(a)(3)(ii) insofar as the Chicago Dreis & Krump large press brake is concerned, which constituted Item 2d of the original citation which resulted from inspection of March 22, 1978. The failure to abate was discovered on July 28, 1978.

3. The Respondent was not in violation insofar as items 2b and 2c are concerned (the Verson press brake and the small Dreis & Krump press brake).

4. The penalty of $100.00 is appropriate for the failure to correct affirmed herein.

ORDER

In view of the foregoing, good cause appearing therefore, it is ORDERED THAT:

1. The Allegation by the Complainant that this Respondent failed to correct the violation of Item 2d of the citation originally served on the 5th day of April 1978, is AFFIRMED and a penalty of $100.00 is ASSESSED therefore.

2. The allegations of failure to correct, insofar as Items 2b and 2c are concerned, are VACATED.

SO ORDERED.

DAVID G. ORINGER,

JUDGE, OSHRC

Dated: June 14, 1979

New York, New York

---

[1] Redesignated Rule 92(a), 44 Fed. Reg. 70106, 70111 (1979) [to be codified in 29 C.F.R. § 2200.92(a)].

[2] The standard provides the following:

§ 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.

[3] 29 U.S.C. § 659(a).

[4] The notification of failure to correct violations also concerned a large Dreis & Krump press brake used in heavy manufacturing. Our review in this case does not involve this press brake, however, because Vampco did not except to the judge’s decision affirming this item of the notification and review was not directed on any issues involving it. See Commission Rule 92, note 1 supra.

[5] Barrier guards, two-hand tripping devices, and electronic safety devices are examples of guarding methods set forth in 29 C.F.R. § 1910.212(a)(1).

[6] Furthermore, the compliance officer testified on rebuttal to Vampco’s case that the moveable gate guard is adjustable.

[7] In his opinion given at the close of the hearing when both parties declined to file briefs, the judge explicitly held that proof of the feasibility of guarding is the Secretary’s burden. The holding does not appear as such in the subsequent written opinion but the rule of law—that the Secretary must prove feasibility—apparently governed the judge’s reasoning. His determinations central to his resolution were couched in the following terms:

After listening to all of the testimony, Respondent’s witnesses and the Compliance Officer, this tribunal remains unconvinced that in the extant state of the art, the two small presses can have their points of operation guarded . . .. Specifically, this tribunal is not convinced that in the present condition of the art, these machines could be guarded so as to conform to OSHA requirements so that they would not be cited despite all of the expenditures for such purpose.

The judge therefore specifically found as fact that ‘[t]his tribunal is not convinced that the proof of record adduced proves feasibility of guarding the Verson press or the small Dreis & Krump press.

The judge additionally found that ‘[t]he Respondent has sustained the burden of proof of showing infeasibility of guarding the small presses given the extant state of the art and the special type of operations used with these machines.’ The judge did not, however, underpin this general finding with an analysis of the evidence on each of the guarding methods in terms of the employer’s defenses of impossibility and greater hazard. See discussion infra.

[8] This case involves the question of whether Vampco failed to abate violations rather than whether Vampco violated the Act in the first instance. The Commission has held, however, that in a failure to abate proceeding the employer may defend by showing that the condition for which it was originally cited was in fact nonviolative of the Act. York Metal Finishing Co., 74 OSAHRC 19/D2, 1 BNA OSHC 1655, 1973–74 CCH OSHD ¶17,633 (No. 245, 1974). Normally, therefore, these defenses that could have been raised to the original citation may also be raised in a failure to abate proceeding.