________________________________________
                                        :
SECRETARY OF LABOR,                     :
                                        :
          Complainant,                  :
                                        :
          v.                            :   OSHRC DOCKET NOS.  94-2968
NATIONAL ENVELOPE CORPORATION d/b/a     :                      94-3547
  NEW YORK ENVELOPE CO.                 :
                                        :
          Respondent.                   :
________________________________________:


Appearances:
  Evan R. Barouh, Esq.           Alexander S. Moser, Esq.
    Office of the Solicitor        Moser & Moser, LLP
    U.S. Department of Labor       New York, New York
      For Complainant                For Respondent

Before:  Administrative Law Judge Richard DeBenedetto

*DECISION AND ORDER*

Between February and November of 1994, OSHA conducted two separate
inspections of National Envelope Corporation's ("NEC's") plant in Long
Island City, New York, where it manufactures envelopes of various types.
As a result of these inspections, NEC was issued a total of five
citations, four of which comprise docket number 94-2968, the remaining
citation appears under docket number 94-3547. These cases have been
consolidated. The inspections were conducted by compliance officers
Cheryl Washington and Kevin Brennan, respectively. During the course of
Washington's major inspection, she was accompanied on two occasions by
Robert Zurlo, a compliance officer who conducted an inspection of the
same NEC plant in 1991. A 1992 citation arising out of Zurlo's 1991
inspection serves as the basis for the Secretary's allegations of repeat
violations under the current citations (Tr. 2444-45, 3583; Exhibit C-6).

*TRAINING THE MACHINE OPERATOR*

On November 4, 1994, NEC was issued a citation alleging serious
violation of the machine guarding standard at 29 CFR § 1910.219(f)(1).
This citation is docketed as 94-3547. In her complaint, the Secretary
amended the citation to allege instead violation of a lockout/tagout
training standard set forth at § 1910.147(c)(7)(iii)(A) or, in the
alternative, the general duty clause of § 5(a)(1) of the OSH Act, 29
U.S.C. § 654(a)(1).[1] Section 1910.147(c)(7)(iii)(A) requires an
employer to provide retraining for all authorized and affected employees
whenever there is a change in their job assignments, a change in
machines, equipment or processes that present a new hazard, or when
there is a change in the energy control procedures. According to the
Secretary, Mariano Mendoza, an NEC machine operator, was given a new job
assignment, but not provided with the appropriate lockout/tagout
training. It is undisputed that Mendoza was hired by NEC in 1988 to
operate a rotary window (RW) machine which manufactures window envelopes
(Tr. 47, 89-95, 391, 417; Exhibit R-9).[2] Under the general duty
clause, the Secretary alternatively alleges that as an operator, Mendoza
was not properly trained to keep his hands and other parts of his body
out of the RW machine's points of operation and other dangerous parts as
set forth in the American National Standards Institute's ("ANSI") safety
requirements for envelope manufacturing machinery (Exhibit C-2).[3] The
Secretary contends that as a result of NEC's failure to train Mendoza,
he sustained an injury to his right index finger, two-thirds of which
had to be amputated (Tr. 145-46, 158-59, 209).

Mendoza testified that on August 8, 1994, the night his injury occurred,
he arrived early for his shift and was told by the previous machine
operator that the RW machine to which he was assigned, RW-2, had a
problem with the "chip collector". (Tr. 46, 52, 60, 103). The chip
collector is a metal tray or bin which hangs underneath the machine and
collects the pieces of paper cut out of each blank to create the
envelope's window. Mendoza checked the collector and saw that it was
"broken". When questioned on direct examination he repeatedly stated
that the chip collector was "broken", or a "part was broken". When asked
to explain "what specifically was broken," Mendoza again simply replied
that " the chip collector was broken". He then went on to testify that
before he started operating the machine, he got supervisor Nestor Pastor
to take a look at the problem (Tr.61): "I told him to look and see how
the chip collector was broken and not in the right position, and I asked
for it to be fixed so that I could work on it". According to Mendoza,
the chip collector was not functioning correctly, allowing the paper
pieces, or "chips", to fall onto the envelopes and stick to the window
gum and envelope sealant (Tr. 52, 60-64, 121, 140-143, 257, 333, 438;
Exhibit R-13).

According to Mendoza, repairing a chip collector was a task performed by
an adjuster, the NEC employee responsible for servicing and maintaining
the manufacturing machines (Tr. 65-66, 68-69, 101-02). Mendoza stated
that on four separate occasions throughout his shift, he asked
supervisor Pastor to have the RW-2 machine's chip collector repaired by
an adjuster (Tr. 61-63). He maintained that Pastor first told him to
simply keep working on the machine as it was, then that there was no
adjuster available to repair it, and finally that since he knew how to
repair the chip collector himself, he should do so (Tr. 62-64, 68,
70-71, 106). According to Pastor, however, Mendoza never discussed the
chip collector with him that evening (Tr. 333, 352-53, 370-71). In fact,
Pastor testified that when he checked the RW-2 machine immediately after
learning of Mendoza's accident, the chip collector was functioning
properly (Tr. 339).

Mendoza also claimed that on three separate occasions, he asked an
adjuster who was working overtime from the previous shift if he would
repair the RW-2 machine's chip collector and the adjuster told him to
wait until he was finished with other work (Tr. 69, 103-06, 332-33,
367-68).[4] Although he admitted that he did not actually know how to do
so, Mendoza decided to fix the chip collector himself (Tr. 71-72,
108-09, 121). In his attempt to make the repair, his finger was injured
when it came into contact with a moving part of the machine (Tr. 73, 112).

There is some dispute over exactly how Mendoza sustained his injury.
Mendoza testified that his hand was pulled up into the RW machine by its
vacuum system and his fingers became tangled in the moving gears located
above the chip collector (TR. 109-11, 121, 260, 338, 356; Exhibit R-7).
However, both supervisor Pastor and safety director Heym testified that
the vacuum systems on the RW machines were not operational for at least
a year prior to the accident (TR. 334-35, 446). In addition, both men
testified that there are no moving parts in the immediate area of the
chip collector; the nearest moving parts are gears which are located
about 8 to 10 inches above and to the right of the chip collector (TR.
338-39, 361-63, 450-51). When questioned on rebuttal, Mendoza admitted
that the nearest moving parts were gears located about eight inches
above the chip collector (TR 477).

The Secretary contends that Pastor essentially changed Mendoza's job
assignment from operator to adjuster when he told Mendoza to repair the
chip collector, a job for which the parties have stipulated Mendoza was
not trained (Tr. 66-67, 209, 213, 284). But Mendoza's testimony is
riddled with ambiguities and self-contradictions. For instance, he
testified that the chip collector was "broken" and required repair, then
explained that the "repair" consisted of merely lifting the chip
collector back into position, without the use of tools (Tr. 60-61, 64,
121). This is inconsistent with Mendoza's claim that he sometimes
assisted the adjuster in repairing the chip collector by handing him
tools (Tr. 101-02). In any case, this much is clear: Mendoza
acknowledged that repairing the chip collector (which apparently was a
frequent occurrence) was always performed by an adjuster or his helper,
and he admitted that supervisor Pastor did not order him to perform the
repair work (Tr. 98-101,106-07). Moreover, as previously noted, Mendoza
admittedly did not know how to perform the repair work, which is
consistent with NEC's job assignments (Tr. 114). Where there is no
evidence to indicate that NEC's supervisory personnel said or did
anything that would have led Mendoza to understand that he was assigned
the job of repairing the chip collector, NEC was not required to retrain
Mendoza pursuant to § 1910.147(c)(7)(iii)(A) (Tr. 98-107, 114). .

In the alternative, the Secretary has alleged violation of the general
duty clause, arguing in her complaint that by failing to train Mendoza
to operate the RW machine in the manner outlined by ANSI B169.1990 §
4.3.1 (3), NEC failed to abate a recognized hazard. In making this
argument, the Secretary contends that repairing the chip collector was a
task that could, in fact, be performed by an operator like Mendoza
(Secretary's Post-Hearing Brief at 11-12). This would be consistent with
the testimony of supervisor Pastor and safety director Heym, if the
malfunctioning collector needed simple adjusting instead of repairing.
Although both acknowledged that all machine repairs, including those
involving the chip collector, were the responsibility of the adjuster,
their testimony indicates that adjusting, i.e., /repositioning/ a chip
collector, was not actually repair work calling for an adjuster. It
required nothing more than rehooking the tray into place underneath the
machine (Tr. 351, 360-61, 370, 382, 420, 443-45, 462). Pastor and Heym
also testified that neither tools nor special skills were needed to
perform this task, and no special training beyond that of a machine
operator (Tr. 361, 382, 444, 462-63).

In making her case under the lockout/tagout training standard, the
Secretary argued that Mendoza was not properly trained when his job
assignment was changed from operator to adjuster. In alleging a general
duty violation under § 5 (a) (1), she argues that Mendoza was not
properly trained as an operator. The Secretary's two-pronged attack
seems to have caused her some confusion. In her post-hearing brief, the
Secretary actually acknowledges that Mendoza, as an operator, received
proper training when she claims, with regard to her alternative §
5(a)(1) allegation, that NEC "negated the /prior training it had given
Mendoza, which was that he not place his hands into the machinery while
it was operating/...when it directed him to perform...repair work on a
machine that was in operation and was not locked out or tagged out"
(Brief at 14) (citations omitted) (emphasis added). This argument is
inconsistent not only with the Secretary's allegation set forth in her
complaint, but also with the requirements of the cited ANSI standard,
which deal expressly with /operating/ procedures, not repair or
lockout/tagout procedures. Moreover, any argument based on the
assumption that Mendoza was "directed to perform...repair work" on the
chip collector must fail given the conclusion reached with regard to the
Secretary's allegation under the lockout/tagout standard.

The record clearly establishes that Mendoza was an experienced RW
machine operator who received adequate safety training from NEC,
particularly in machine operation. Upon his hire in 1988, Mendoza was
assigned to work with an experienced adjuster and/or operator to learn
and observe the operation of the RW machine (Tr. 88-92, 418-19). After a
few days, Mendoza began working on the RW machine on his own and he
operated this type of machine almost exclusively for the six years prior
to his accident (Tr. 92-93, 96-97, 418). In 1991, he received a
certificate of completion for participating in an NEC operator training
course whose accompanying materials specifically discuss safe machine
operating procedures and include the admonition: "Never place your hands
in moving parts of the machine" (Tr. 76-80, 146-51, 427-28, 432-33, 437;
Exhibits C-1 & R-1 at 2.2, 9.3). NEC has a general safety program, a
lockout/tagout program, and an employee safety manual, a copy of which
Mendoza received (Tr. 230-31, 272-80, 421-23; Exhibits R-4 & R-10). As
part of its safety program, NEC showed employees a safety video which
refers to the dangers of moving parts in machinery (Tr. 401-03, 425-26;
Exhibit R-8).

Where the Secretary has alleged that NEC's safety training was
inadequate, it is her burden to identify the additional steps NEC should
have taken to address the cited hazard, as well as to show that a
knowledgeable person familiar with the industry would regard such
additional measures as necessary and appropriate given the circumstances
existing at the plant. /Connecticut Light & Power Co./, 13 BNA OSHC
2214, 2218, 1987-90 CCH OSHD ¶ 28,508 (No. 85-1118, 1989). Here, there
is nothing in the record to indicate what more NEC could have done to
train Mendoza about the cited hazard nor is there any indication that
NEC had reason to believe its training in this area was somehow
deficient. Accordingly, the citation is vacated in its entirety.

Of the four citations listed under docket number 94-2968, only two
contain matters which remain in dispute.[5] In citation 2, the Secretary
alleges four willful violations of various machine guarding standards
and a lockout/tagout standard, for which a total penalty of $265,000 is
proposed. In citation 3, the Secretary alleges four repeat violations of
various standards addressing hazard communication, lockout/tagout, and
machine guarding, for which a total penalty of $51,000 is proposed. In
keeping with the manner in which they were presented at the hearing, the
alleged violations are grouped by subject matter.

*LOCKOUT/TAGOUT*

*Willful Citation 2, Item 1*

Under this item, the Secretary alleges a willful violation of §
1910.147(c)(4)(i) which provides that energy control procedures shall be
developed, documented and utilized for the control of potentially
hazardous energy when employees are engaged in the servicing and
maintenance of machines and equipment in which the unexpected
energization or start up of the machines or equipment, or release of
stored energy could cause injury to employees.[6] According to Cheryl
Washington, the compliance officer who conducted the inspection, two NEC
adjusters failed to utilize energy control procedures while performing
repair and service work on a WEB-3 envelope folding machine (Tr. 714-15;
Exhibit R-16). It is undisputed that NEC has a written lockout/tagout
program and that the machine in question was not locked out or tagged
out when observed by Washington (Tr. 556, 675-76, 739, 770, 804, 809-10,
825-26, 849).

When Washington observed the WEB-3 machine, the two employees were in
the process of replacing a clogged vacuum hose located underneath the
machine (Tr. 551-52, 588, 659-60, 716, 770; Exhibits R-16 & R-17). One
employee, Rafael Benitez, an adjuster, was working underneath the
machine inside a "cavity" where the hose was located, while the other
employee, Richard Hoffman, the head adjuster, stood next to the machine
just outside the cavity (Tr. 635, 658. 665-66, 770, 819, 828-29;
Exhibits R-16 & R-18). The cavity was about 21 inches high, 18 inches
wide, and 30 inches deep (Tr. 748-49). As the adjuster assigned to the
WEB-3 machine that day, Benitez was alerted to the clogged vacuum hose
when a problem developed with the machine's envelope production; the
hose, which was designed to contain nothing but air, was clogged with
glue and/or paper dust (Tr. 727-28, 739-40, 786, 789-90, 793, 800, 825,
844-45; Exhibit R-17).[7] According to the adjusters, the hose
replacement took only minutes to complete (Tr. 773-75, 829-30, 848).

When compliance officer Washington noticed during her observation of the
WEB-3 machine that rollers positioned inside the machine's gum tray were
in motion, she concluded that the machine was still energized (Tr.
554-55, 608-12, 636, 747; Exhibit R-16). At that time, NEC's
vice-president of engineering, Zory Ginzburg, explained that the rollers
had to remain energized and operational while the vacuum hose was
replaced in order to keep them moist and prevent the gum tray from
drying out (Tr. 662, 731). He indicated to Washington that disconnecting
the WEB-3 machine's main energy source for such a "quick repair" would
result in two hours of down time while the adjusters cleaned dried gum
from the tray (Tr. 554-55, 589). Both adjusters confirmed Ginzburg's
explanation (Tr. 778, 804, 849-50).

In order to prove the violation of a standard, the Secretary must show
that 1) the cited standard applies, 2) its terms were not met, 3)
employees had access to the violative condition, and 4) the employer
knew or could have know of the violation with the exercise of reasonable
diligence. /See, e.g., Seibel Modern Mfg. & Welding Corp./, 15 BNA OSHC
1218, 1221, 1991 CCH OSHD ¶29,442 (No. 88-821, 1991). Here, §
1910.147(c)(4)(i) applies only when employees are engaged in servicing
and/or maintenance, defined at § 1910.147(b) as:

    Workplace activities such as constructing, installing, setting up,
    adjusting, inspecting, modifying, and maintaining and/or servicing
    machines or equipment. These activities include lubrication,
    cleaning or unjamming of machines or equipment and making
    adjustments or tools changes, where the employee may be exposed to
    the unexpected energization or startup of the equipment or release
    of hazardous energy.

According to compliance officer Washington, replacing a machine part
such as a vacuum hose constitutes service and/or maintenance under the
cited standard (Tr. 564, 593-95). Although, v.p. of engineering Ginzburg
claimed this task should not be considered a "repair", replacing a
machine component that affects production certainly constitutes
maintenance under the above definition (Tr. 738).

Determining whether the cited standard applies also requires
consideration of the concept of "unexpected energization". As the Review
Commission has held, a lockout/tagout standard will apply "only where
the Secretary shows that unexpected energizing, start-up or release of
stored energy could occur and cause injury." /General Motors Corp./, 17
BNA OSHC 1217, 1219, 1995 CCH OSHD ¶30,793 (Nos. 97-2973, etal., 1995),
/aff'd/, 89 F.3d 313 (6th Cir. 1996) ("/General Motors/"). Here, there
is no question that NEC's employees were working on a machine which was
still connected to an energy source and therefore, had the potential to
energize unexpectedly. This is true despite the fact that Ginzburg and
both adjusters testified that production was shut down on the WEB-3
machine prior to beginning the hose replacement. According to their
testimony, a red "safe" button is located at each of the machine's work
stations which, when engaged, shuts down production on the machine, but
allows the gum tray rollers to remain operational (Tr. 733-34, 805-07,
811, 826-27, 850-51, 853; Exhibit R-18).[8] Prior to beginning their
work, the adjusters activated three of these buttons; Hoffman stood
outside the cavity where the hose was located to ensure that the buttons
were not deactivated (Tr. 733-35, 737, 771-72, 807-08, 836, 851, 859).
To restart the machine, each of the activated buttons had to be
released, then the start button engaged (Tr. 735-36).

It is not enough, however, to merely shut down production on a machine
or piece of equipment to protect employees from unexpected energization;
as the lockout/tagout standard's preamble states, "[t]he generally
accepted best means to minimize the potential for inadvertent activation
is to ensure that all power to the machine or equipment is isolated,
locked or blocked and dissipated at points of control, using a method
that cannot readily be removed, bypassed, overridden or otherwise
defeated." /See Control of Hazardous Energy Sources (Lockout/Tagout):
Final Rule/, 54 Fed Reg. 36,644, 36,647-48 (1989). Here, head adjuster
Hoffman acknowledged that the three-button method he and adjuster
Benitez employed did not isolate the WEB-3 machine from its main energy
source, and electricity was still running through the machine (Tr.
850-52). Moreover, the process required to startup the WEB-3 machine was
relatively uncomplicated and would not have provided sufficient warning
of imminent energization to a service or maintenance employee like
Benitez. /Cf. General Motors/, 17 BNA at 1221 (employer's eight-to
twelve-step startup process, complete with warning bells and
interlocking gates, provides service or maintenance employee with ample
warning of energization). The Secretary has established that §
1910.147(c)(4)(i) applies here.

The critical question is whether the unexpected energization of the
WEB-3 machine could have caused injury to the employees performing the
hose replacement, i.e. did they have "access to the violative
condition"? Access to a violative condition is established by showing
that employees in the course of their assigned work duties will be, are,
or have been in a "zone of danger". /Kaspar Electroplating Corp./, 16
BNA OSHC 1517, 1521, 1993 CCH OSHD ¶30,303 (No. 90-2866, 1993). In the
context of lockout/tagout, employee injury typically occurs when the
unexpected energization of a machine or piece of equipment causes, in
turn, the unexpected movement of a machine component to which an
employee has access. /See Final Rule/, 54 Fed Reg. at 36,647-48 (1989).
Here, compliance officer Washington testified that while there were no
moving parts inside the cavity where the vacuum hose was located,
"electrical wires" she observed in the area exposed the adjusters to
various electrical hazards such as shock or burns should energization
occur unexpectedly (Tr. 566, 615, 633, 638, 673). However, she admitted
that she did not test any of these wires, and did not know if they were
energized or whether energy was even directed to that area of the
machine (Tr. 616-17, 639-40, 642, 644-45).

Testimony from v.p. of engineering Ginzburg and both of the adjusters,
as well as the photographic evidence, indicate that there were no
electrical wires whatsoever in this area of the machine nor was any
energy directed to the area should energization occur (Tr. 727-30,
737-38, 775, 830, 835; Exhibit R-19). The testimony of NEC's witnesses
was credible. Under the circumstances, neither employee could have
sustained injury should the WEB-3 machine have unexpectedly energized.

In addition to replacing the vacuum hose, compliance officer Washington
claimed that during the inspection, the adjusters also informed her they
intended to clean the WEB-3 machine's folding mechanisms and other
vacuum hoses (Tr. 551-52, 559, 561, 618, 634, 646, 660). However, she
did not observe them perform this work and had no firsthand knowledge as
to whether the work was actually done, or whether lockout/tagout
procedures were required or even implemented at that time (Tr. 645).[9]
Having simply assumed that the work was, in fact, completed without
instituting lockout/tagout procedures, Washington concluded that if the
folding mechanisms were unexpectedly energized, the adjusters would have
had access to moving parts that could have caused serious injury such as
lacerations or amputations (Tr. 566, 634, 668-69, 678-79, 757). However,
she admitted that she knew nothing about how the machine's folding
mechanisms operated or even what the cleaning process would entail (Tr.
645-46, 677-79, 683). Moreover, Washington conceded that if the machine
had to be energized in order to actually perform the cleaning process,
the cited standard would not apply (Tr. 681-82). Given her weak
testimony on this issue, there is no basis on which to establish a
violation. Without proof of exposure to a hazard created by the
unexpected energization of the WEB-3 machine, this item must be vacated.

*Repeat Citation 3, Item 3*

This item alleges a repeat violation of § 1910.147(c)(4)(ii) which
provides that energy control procedures shall clearly and specifically
outline the scope, purpose, authorization, rules, and techniques to be
utilized for the control of hazardous energy, and the means to enforce
compliance including, but not limited to, four specific elements.
According to the record, NEC's lockout/tagout program consists of a
three-page written document, copies of which are provided to all
employees, and a videotape shown during training sessions conducted by
v.p. of engineering Ginzburg (Tr. 986-87, 990-93, 1010; Exhibits C-10 &
R-23).[10] The Secretary contends that NEC's program lacked three of the
cited standard's specified elements: (A) a specific statement of the
intended use of the energy control procedure; (B) specific procedural
steps for shutting down, isolating, blocking and securing machines or
equipment to control hazardous energy; and (D) specific requirements for
testing a machine or equipment to determine and verify the effectiveness
of lockout devices, tagout devices, and other energy control measures
(Tr. 879-84, 911-12, 914).[11]

NEC argues not only that its lockout/tagout program satisfies the
requirements of the cited standard, but also that it has satisfied the
elements of an exception set forth at § 1910.147(c)(4)(i). This
exception provides that an employer need not document the energy control
procedure for a particular machine or equipment when eight specific
elements exist.[12] According to credible testimony provided by
Ginzburg, all of these elements were present for each piece of equipment
and machinery found in NEC's plant (Tr. 1004-09, 1030). On these
grounds, NEC moved for the dismissal of this citation item at the
hearing and the motion was granted (Tr. 1042-43, 1047-48, 1055, 1109-10,
1115). Relying largely upon the testimony of compliance officer
Washington and Robert Zurlo, the compliance officer who inspected the
NEC plant in 1991 and accompanied Washington on two occasions during her
1994 inspection of the plant, the Secretary argues that three of the
exception's elements have not been established and therefore, dismissal
of this item was erroneous (Secretary's Post-Hearing Brief at 44-46).

Specifically, the Secretary contends that the first three elements of
the exception have not been met by NEC. Washington and Zurlo testified
that several pieces of equipment at the NEC plant operated with more
than one type of energy: electrical, plus pneumatic and/or hydraulic
(Tr. 955-57, 1088-89, 1097).[13] As a result, the compliance officers
maintained that this equipment had the potential to store hydraulic
and/or pneumatic energy even if the electrical source was properly
locked out, a violation of the exception's first two elements (Tr.
1097-99). With additional sources of energy powering this equipment,
Washington and Zurlo also claimed that locking out the electrical source
did not serve to completely deenergize and deactivate the equipment, as
required by the third element of the exception (Tr. 962-64, 1098-99).

NEC does not dispute that many of its machines utilized air pressure for
operation (Tr. 1005-06). However, Ginzburg testified that the air
pressure for each machine remained controlled by a single electrical
energy source (Tr. 1006-07). This is consistent with compliance officer
Zurlo's own testimony that ancillary types of energy such as pneumatics
or hydraulics are typically powered by a single electrical source such
as a motor or pump (Tr. 1097, 1102-06). In addition, Ginzburg indicated
that once a machine's electrical source was disconnected, the air
pressure was automatically disconnected and the air lines bled to
completely eliminate any stored pressure (Tr. 1007-08, 1037-40). Given
that neither compliance officer was able to explain the operation of any
of the machines they identified as using pneumatic or hydraulic energy,
nor were they aware of how NEC's lockout/tagout procedures may affect
these ancillary types of energy, Ginzburg's testimony regarding the
application of the exception's elements was not effectively rebutted
(Tr. 1107-08). Accordingly, the dismissal of this item stands.

*EXIT SIGNS*

Under the second item of the third citation, the Secretary alleges a
repeat violation of § 1910.37(q)(5) which provides that a sign reading
"Exit", or similar designation, with an arrow indicating the directions,
shall be placed in every location where the direction of travel to reach
the nearest exit is not immediately apparent. According to the
Secretary, boxes and machinery reaching six feet in height blocked the
view of the nearest exits for employees working in the plant's
manufacturing area. The Secretary contends that exit directional signs
should have been provided in this area.

The Secretary's case rests entirely upon the testimony of compliance
officer Washington, which lacks clarity, consistency and credibility. On
a floor plan depicting the layout of the cited work area, she identified
several locations from which she stated it was not "immediately
apparent" which direction to travel in order to reach the nearest exit
(Tr. 1130-31; Exhibit C-14).[14] Washington attributed this difficulty
to boxes which were stacked over six feet high and machinery which was
equipped with hoods that raised the height of the equipment to over six
feet, conditions which she stated obstructed the view of the nearest
exits; she failed, however, to relate these conditions to the specific
locations she identified (Tr. 1118, 1125-26, 1143-44, 1147-48,
1215-16).[15]

Furthermore, most of the locations which Washington identified on the
floor plan were located at individual work stations, areas in which exit
directional signs would be unnecessary (Tr. 1428; Exhibit C-14).[16] In
the event of a fire or other emergency, an employee would naturally and
simply leave his machine and walk to the nearest aisle or walkway (Tr.
1160-63). It is such passageways that require exit directional signs,
not individual work stations.

As to whether exit directional signs were actually present in the
manufacturing area, Washington's testimony was inconsistent. Although
she insisted on direct examination that the manufacturing area contained
no exit directional signs whatsoever, once confronted on
cross-examination with her inspection notes, she admitted that exit
directional signs were, in fact, mounted along the west wall of the
plant, adjacent to the exits located there (Tr. 1134, 1138, 1141,
1165-66, 1202-07, 1222-24; Exhibit R-24).[17] According to the testimony
of safety director Heym and v.p. of engineering Ginzburg, exit
directional signs were also suspended from the ceiling at the
intersection of each aisle and walkway in the manufacturing area (Tr.
1240-43; Exhibit C-14). Both men indicated that these signs, positioned
about 12 to 15 feet from the floor, were purchased and installed after
NEC was cited in 1992 for a similar violation in another area of the
plant (Tr. 1241, 1248-53, 1273-74, 1278, 1307-08, 1333-37, 1399-1400,
1406; Exhibits C-6 & R-25).[18] Washington's conflicting and severely
unfocused testimony on this issue does not stand up to the positive
testimony of NEC's witnesses. The record shows that there was nothing in
the main aisles or the walkways separating each bank of machinery to
obstruct the view of the exit directional signs placed at each
intersection (Tr. 1214, 1242, 1246-47). Since the direction of travel to
the nearest exit would, therefore, be apparent to employees working in
the cited area, the Secretary has failed to establish a violation;
accordingly, the item is dismissed.

*HAZARD COMMUNICATION*

Under the first item of the third citation, the Secretary alleges a
grouped repeat violation of all three subsections of §
1910.20(g)(1).[19] This standard requires an employer, upon an
employee's first entering into employment, and at least annually
thereafter, to inform current employees covered by this section of (i)
the existence, location, and availability of any records covered by this
section; (ii) the person responsible for maintaining and providing
access to records; and (iii) each employee's rights of access to these
records. According to § 1910.20(b)(1), these informational requirements
apply to each general industry, maritime, and construction employer who
makes, maintains, contracts for, or has access to employee exposure or
medical records, or analyses thereof, pertaining to employees exposed to
toxic substances or harmful physical agents. Here, compliance officer
Washington testified that the alleged violations centered upon the
information NEC provided employees about its material safety data sheets
(MSDSs) (Tr. 1445).[20]

After interviewing two employees, Washington concluded that in 1992,
after compliance officer Zurlo's inspection, NEC had informed its
employees of all three elements of § 1910.20 as they relate to the
MSDSs, but had failed to repeat this information to employees on an
annual basis thereafter (Tr. 1435-37, 1440-41, 1445-46, 1448, 1485-86).
According to the record, employees were told at that time that the
binder containing the MSDSs could be found at an "MSDS station" located
in the plant's main corridor, adjacent to the cafeteria and time clock
(Tr. 1446, 1464-67; Exhibits C-14 & R-31). As shown in photographs taken
by safety director Heym, this station consists of a metal rack which
holds the MSDS binder, a yellow triangular sign positioned above the
rack which reads "MSDS" on each side, and a large white sign beneath
that which reads "'RIGHT TO KNOW' CENTER, Material Safety Data sheets
and Hazardous Materials used in this area"; the latter sign also has a
large red arrow which points to the metal rack below (Exhibits R-32A
through E). Washington admitted having observed the MSDS station during
her 1994 inspection, but did not recall seeing the "Right to Know" sign
at that time (Tr. 1447, 1451, 1453-58).

As the Secretary has indicated, the purpose of the cited standard is to
provide employees a "right of access" to relevant exposure records. See
§ 1910.20(a). By providing employees with the required information in a
direct and formal manner when first entering their employment, then
placing the MSDS binder in a noticeable and well-marked location where
all employees must pass, NEC accomplished this purpose. Employees were
well aware that the MSDSs existed, and were accessible in the plant's
main corridor (Tr. 1445-46, 1488-89). Where there is nothing in the
standard requiring that the annual information be formally conveyed
either verbally or in writing, making the MSDS station conspicuous by
printed signs where employees must pass at least twice daily to punch in
and out at the adjacent time clock constitutes more than sufficient
notice of the fact that employees have a right of access to this
information (Tr. 1467). Although Washington did not remember observing
the "Right to Know" sign during her inspection in 1994, she did recall
the station itself and it seems unlikely that the sign, as depicted in
the photographs in evidence, would have been posted after the MSDS
triangle and metal binder rack were installed. Safety director Heym
testified that they were all installed at the same time after compliance
officer Zurlo's 1991 inspection (Tr. 1478).[21]

The Secretary is correct in noting that the MSDS station did not
actually serve to inform employees of the standard's second element, the
person responsible for maintaining and providing access to the records,
a point which Heym conceded at the hearing (Tr. 1461, 1480). However,
where the MSDS binder is openly accessible to all employees, identifying
the person responsible for "providing access" to these records would not
be necessary. Moreover, since 1992, each employee had been notified at
least once that Heym, as safety director, was in charge of maintaining
the MSDS binder (Tr. 1475-77). He continued to serve in this position
and his presence at the plant could reasonably be considered a constant
reminder to employees that he remained in charge of all safety matters,
including the MSDSs. As a practical matter, it may fairly be concluded
that NEC has complied with this element of the cited standard.

One final point deserves comment. Washington raised a valid concern at
the hearing regarding the fact that NEC employed workers who did not
speak English and therefore, might not have been able to understand the
information conveyed by the MSDS station (Tr. 1461-62). It should be
noted that OSHA does not require the MSDSs themselves to be provided in
any language other than English (Tr. 1498-99). See § 1910.1200(g)(2)
("Each material safety data sheet shall be in English (although the
employer may maintain copies in other languages as well)..."). The
Secretary introduced no evidence to indicate that NEC's
non-English-speaking employees lacked this information. On the contrary,
the record establishes that since 1992, the information required by the
standard had been conveyed at least once to employees in their
respective language (Tr. 1468-69). Under these circumstances, each
employee, English-speaking or otherwise, would presumably be able to
associate this information with the MSDS station. Accordingly, the item
is vacated in its entirety.

*MACHINE GUARDING*

These alleged violations center upon numerous envelope folding machines
found in the plant's manufacturing area. As with previous citation
items, most of these machines are identified by an abbreviation of their
type, such as RH (rotary high speed) or RW (rotary window), and an
assigned number, such as RH-1 or RW-2. The manufacturing process on each
of these machines is generally the same (Exhibit R-63). The machine
operator places a stack of pre-cut paper known as "blanks" onto the
machine's high-stack paper feeder where they are held and released in
single sheets by a vacuum system and two rotating steel disks, known as
separator disks (Tr. 2844-45, 3065).[22] Each sheet then travels through
a series of operation points where seal gum and/or patch gum is applied
and dried (Tr. 2845-46). The blank then enters the "scoring" area of the
machine where it is marked with creases to indicate where the blank will
be folded to create the envelope (Tr. 2846). After several folding
steps, the finished envelopes arrive at a "delivery table" located in
the middle of the machine where they are removed by the operator and
packed into boxes (Tr. 2846-47). The speed of the folding machines vary
depending upon the type; the wide range window (WRW) produces about 250
envelopes per minute, while the RH machine produces about 650 to 675
envelopes per minute (Tr. 2849, 2931, 2934-35, 3069, 3179, 3463-65).

As with the other citations, the Secretary's machine guarding case rests
almost entirely upon the testimony of compliance officer Washington.
However, her testimony regarding these violations was extremely
problematic, raising disturbing questions about her credibility. A close
review of Washington's inspection notes reveal several inconsistencies,
errors, and even fabrications, regarding employee exposure, none of
which she was able to adequately explain at the hearing. Most troubling
is what can only be termed a manipulation of the hazardous conditions
which she claimed to have observed during her inspection.

First, Washington acknowledged having obtained permission from her
supervisor to use a "master copy" of her OSHA 1B inspection notes, one
for each alleged instance of machine guarding violation, to generate the
information related to each of the cited machines (Tr. 2381-82, 2411,
2416, 2418-20, 2424, 2430-31, 2473-74, 2487-91, 2519-20, 2530, 2545-51,
2559, 2582-92; Exhibits R-34 to R-55). After covering those areas on the
master sheet which identify the machine cited, the employee allegedly
exposed, and in some cases, the time of the alleged exposure, she simply
photocopied the master sheet, then filled in the missing information
relating to a particular machine, rather than generate a new sheet of
notes (Tr. 2377-80, 2382-83, 2397-99, 2408-10, 2423, 2432, 2474-75,
2552-53, 2571-72, 2583-84, 2591-92). As a result, Washington's
descriptions of employee exposure are virtually identical for every
machine cited under a particular instance of violation, irrespective of
the fact that the cited machines were, in most cases, operated by
different employees and purportedly observed at different times.

Perhaps Washington and her supervisor viewed this method of
documentation simply as an efficient way to compile the information
associated with a large inspection. However, the circumstances
surrounding most of Washington's documented observations undermine the
veracity of her claims. Many inconsistences were accurately summarized
by NEC in a four-page exhibit which tracks some of Washington's alleged
observations by date and time, revealing a bizarre pattern of unlikely
exposures (Exhibit R-56a).[23] For instance, Washington's notes indicate
that on March 23, 1994, she observed several employees exposed to the
same hazard at the same time; thus, at 3:10 PM, she claimed to have
observed four employees exposed to unguarded rotating separator disks on
five different machines (Tr. 2383-84; Exhibits R-34 to R-38 & R-56a at
2).[24] Similarly, Washington's notes indicate that on March 10, 1994,
she observed five employees removing jammed envelopes from three
different areas of their assigned machines at the same time; for
instance, at 11:00 AM, she claimed to have observed employee Ricardo
Vasquez removing jammed envelopes from the transfer area, delivery area,
and scoring area, of the RA-3 machine (Exhibits R-45 at 44, R-48 at 65,
R-52 at 4, & R-56 at 1).[25]

In addition to these implausible scenarios, Washington admitted to
making two obvious "errors" regarding employee exposure, one of which
she attempted to correct prior to the hearing. First, she acknowledged
that she erred in documenting Ronaldo Gonzalez as the employee exposed
to the unguarded separator disks of four different machines on the same
day and within a ten-minute time frame (Tr. 1743-44, 2425-27; Exhibits
R-36, R-38, & R-56a at 2). Indeed, the record indicates that employees
are rarely, if ever, assigned to more than one machine during a shift
(Tr. 3965-66, 3993-94).[26] Washington, however, never explained how she
made such a glaring mistake, and also failed to indicate what she
actually observed with regard to these four machines, this particular
employee, and the condition in question.

Second, Washington conceded to having erred in naming Puentes as the
exposed employee under four separate instances of violation when he was
not even present at the plant on the dates alleged (Tr. 1792, 1794-95,
1797, 2675-76, 2687, 2692, 2697-98; Exhibits R-35 at 149, R-43 at 38,
R-50 at 78, & R-59). Initially, Washington claimed to have simply
"reconstructed" Puentes's exposure based upon her interview of him in
March of 1994 (Tr. 1792, 1794-95, 1797, 1887-89). Then on
cross-examination, she admitted that after meeting with the Secretary's
counsel at some point after the notice of contest was filed, she
recognized that her inclusion of Puentes as an exposed employee was an
"inaccuracy" and amended her inspection notes to allege the exposure of
a second employee, Catarino Tzumuc (Tr. 2676-89, 2695-96, 3142-43;
Exhibits R-58, R-59, R-73, & R-74).[27] It remains unclear how adding a
second employee to her inspection notes corrects this mistake,
particularly where Washington apparently did not actually observe the
exposure of Tzumuc either.

Finally, and most damaging, Washington admitted that in several
instances, she did not in fact observe the employees named in her
inspection notes as exposed to the documented conditions. At the
hearing, she acknowledged relying upon a single statement alleged to
have been made by v.p. of engineering Ginzburg during the inspection to
establish employee exposure on machines which she never personally
observed (Tr. 2152, 2158-61, 2177-82, 2195-96, 2204-05, 2209-11). Thus,
under three instances of violation, discussed infra, she simply
"assumed" employee exposure based upon what she admitted was a general
comment made by Ginzburg without specific reference to any of the
machines cited under these instances (Tr. 2183-87, 2212-13). In doing
so, Washington essentially "multiplied" her findings to include machines
which she herself never actually observed and which Ginzburg's alleged
"admission" never identified as hazardous (Tr. 2213).

An equally disturbing aspect of Washington's actions is her unexplained
fabrication of the dates and times which appear in both her inspection
notes and the citation on which these nonexistent "observations"
occurred. Washington simply decided to take Ginzburg's alleged comment
of April 5, and use it as a basis for documenting the exposures as
occurring at various times on March 10, March 23, and April 14, 1994
(Tr. 2197-99, 2212; Exhibits R-48 & R-50). The alleged admission is
discussed infra. Such an investigative technique is not by any means a
legitimate case of extrapolation of known data, but rather a highly
improper act of constructing evidence based upon conjectural knowledge
without any connection with facts either known or proved. It is
interesting to note that Washington amended some of the corresponding
inspection note sheets by adding the word "reconstructed" to the
beginning of each instance description; this one-word amendment does not
serve to explain that the exposures detailed therein were never actually
observed (Tr. 3149-54; Exhibits R-48, R-50, R-58 & R-77). See infra n.47.

Whether part of a deliberate attempt to bolster a weak case against NEC
or the result of misguided efforts to simply perform her official
duties, Washington's actions are unacceptable and not without
considerable consequence for the allegations presented here by the
Secretary. In fact, having sensed the plight of his case, counsel for
the Secretary preserved on the record at the close of the hearing a
stipulation regarding NEC's size and annual earnings, in admitted
anticipation of a claim for attorney's fees being filed by NEC under the
Equal Access to Justice Act (EAJA) (Tr. 4076-77). Under EAJA, a
prevailing party is entitled to an award of attorney fees and costs if
the Secretary's position was not substantially justified. The
significance of this unprecedented move on the part of the Secretary was
not lost on NEC which argued at the hearing that a dismissal of this
portion of the Secretary's case might be appropriate without further
ado. The following analysis demonstrates that the machine guarding
charges cannot be sustained on the merits.

*Machine Guarding under § 1910.212(a)(1)*

This standard requires an employer to provide one or more methods of
machine guarding to protect the operator and other employees in the
machine area from hazards such as those created by point of operation,
ingoing nip points, rotating parts, flying chips and sparks. Under two
separate charges, one repeat and one willful, the Secretary alleges that
NEC employees were exposed to hazards presented by various unguarded
moving parts of several different folding machines. [28]

*Repeat Citation 3, Item 4*

This item is divided into five subitems, four of which remain in
dispute.[29] The folding machines cited involve three types of alleged
hazards: unguarded rotating separator disks, unguarded rotating parts,
and unguarded pinch points.

*Separator Disks [Subitems(b) & (c)]*

Under these subitems, the Secretary alleges that employees were exposed
to unguarded rotating separator disks located at the bottom of the
high-stack paper feeders on fourteen folding machines. Each separator
disk is ten inches in diameter and weighs five pounds; during
production, the disks rotate towards each other and support the stack of
blanks as they are separated and fed into the machine (Tr. 1543, 3081,
3083-84, 3463; Exhibits C-21A & C-21D). The distance between the disks
could be adjusted and varied depending upon the size of the envelope
being manufactured (Tr. 3084-86, 3458-59). The disks rotate at varying
speeds, ranging from 117 rotations per minute (rpms) on the MO, WRW, and
WR machines, to 800 rpms on the RA machine (Tr. 1754, 2931, 2973, 3463-65).

According to Washington, on March 23, 1994, she observed eleven
employees place their hands within one-quarter to twelve inches of the
rotating separator disks while loading and adjusting blanks on the
feeders of the cited machines (Tr. 1510, 1539-43, 1555-56, 1739-50;
Exhibits C-18, C-21A through C-21D, & R-34 through R-40).[30] She
indicated that these employees had allowed the stack of blanks to drop
below twelve inches in height before replenishing the feeder with
additional paper; she acknowledged that there was no exposure when an
employee replenished a stack of blanks whose height exceeded twelve
inches (Tr. 1553-56; Exhibit C-18).[31] NEC does not dispute that the
separator disks on the cited machines were unguarded and that employees
loaded blanks onto the feeder while the machine is in operation.
Although the disks are not sharp, there is no question that should an
employee come into contact with them during production, serious injury
could result (Tr. 3082-83).[32]

As discussed supra, Washington's testimony regarding employee exposure
is highly suspect. She conceded to having erred in documenting Puentes
and Gonzalez as the employees exposed to the unguarded rotating
separator disks on five of the machines cited under these instances. In
addition, Washington was unable to adequately explain how, according to
her inspection notes, she was able to observe the named employees
loading paper onto the feeders of seven different machines, all of whose
stacks had depleted to some unspecified height of less than 12 inches,
at essentially the same time (Tr. 2370-71, 2383-84, 2389-91; Exhibits
R-34 through R-37 & R-56a at 2). When questioned on the brief amount of
time it took her to make these observations, Washington equivocated, "I
did see [the employees] placing paper [on the feeders] but it may not
have been necessarily when I approached them." (Tr. 2390).

Without credible proof of actual exposure, the Secretary's case hinges
upon proof of access to the feeder's separator disks. /Miniature Nut and
Screw Corp./, 17 BNA OSHC 1557, 1560, 1996 CCH OSHD P 30,986 (No.
93-2535, 1996) (citations omitted) (to prove a violation of a machine
guarding standard, the Secretary must prove either that employees had
actually been exposed to the violative condition or that it was
reasonably foreseeable that they would have access to the violative
condition). Access to a violative condition may be shown by establishing
that it is reasonably predictable that during the course of their normal
work duties, employees might be in the "zone of danger" posed by the
condition. /Id./

Washington's testimony comes up short, lacking critical details such as
how the feeder operated and how employees loaded the feeder. For
instance, she repeatedly alleged that employees "adjusted" each stack of
blanks after placing it in the feeder, but never explained how they did
so or why. NEC's witnesses, on the other hand, provided relevant
information about the feeder's operation and did so in a knowledgeable
manner. Based upon their credible testimony, it is evident that during
the normal course of their work duties, employees did not have access to
the "zone of danger" presented by the rotating separator disks.

Depending upon the speed of a given machine, blanks are replenished by
the machine's operator every one to five minutes (Tr. 3053-54, 3072;
Exhibit R-70). During the production process, the operator stands behind
the machine and places the stack of blanks in the feeder using one or
two hands; the stack remains properly aligned by four adjustable posts
positioned around the stack, as well as a vibration system which aids
the feeding process, and therefore, does not require any sort of
"adjustment" (Tr. 3054-56, 3061-63, 3086; Exhibits R-69 & R-70). As
indicated /supra/, the separator disks are located /beneath/ the stack
of blanks and serve to support the stack as each sheet is separated and
fed into the machine (Tr. 2845, 3084-85; Exhibits C-21A). Ginzburg, as
well as head adjuster Ramos, testified that an employee could not wait
until a stack of blanks was depleted to any height less than three
inches before replenishing it since doing so would result in a paper jam
which, in turn, would trip a sensor installed in this area of the
machine that shuts down the machine's production (Tr. 2880-82 , 3064-67,
3925-26).[33] Thus, in order to avoid damaging the machine and
disrupting production, employees were trained to keep the stack of
blanks higher than three inches, at a height of about eight to nine
inches (Tr. 3067).

Citing primarily to the testimony of Ginzburg, the Secretary claims in
her post-hearing brief that "there is no dispute that [NEC's] envelope
folding machines were equipped with jam sensors..." (Post-Hearing Brief
at 31). For some reason, though, compliance officer Washington made not
one reference to the existence of such devices throughout her lengthy
testimony during the Secretary's case-in-chief. In fact, the subject of
jamming was discussed extensively at the hearing, yet Washington failed
to mention that any of the folding machines cited here were equipped
with devices which would halt production under such circumstances (Tr.
1988-94). On the other hand, all three of the Secretary's other
witnesses -- Puentes, Mendoza, and Zurlo -- readily acknowledged this
fact (Tr. 2782, 2787-88, 3546-47, 3804, 3843, 3848).

Relying upon the testimony of three NEC employees -- Ramos, Puentes, and
Mendoza -- the Secretary claims that while sensors did exist on the
cited machines, they did not function properly because they were broken
and/or disconnected. However, the record contains no credible evidence
to establish this fact, either generally or with regard to the cited
machines.[34] The sensors, which were installed by the manufacturer in
multiple areas of all folding machines, were tested by an NEC adjuster
three times a day, before the start of each shift; if found to be
inoperable, the machine is taken out of production until the sensor is
repaired (Tr. 2856, 2868, 2873-78, 2896-97, 3988-89, 4001; Exhibit
R-65). In addition, Ramos testified that only the jam sensor in the
feeder area was ever disengaged and this occurred only during each
machine's weekly warm-up session (Tr. 3991-92, 4001-04). Given the
serious and potentially irreparable damage that a jam could cause if
paper continued to be fed into production, it seems unlikely that the
sensors in any other area of the machine would be disconnected for any
purpose during production (Tr. 2854-55, 3812, 4006-07).

The testimony of Puentes and Mendoza is unpersuasive. According to
Mendoza, he allowed the feeder on his machine to completely deplete the
stack of blanks every hour of his shift, yet the machine continued to
run; in fact, he maintained that while reloading the feeder, he came so
close to the rotating separator disks that he touched them (Tr. 3821-23,
3812, 3815, 3868-70). He also claimed that many times Ramos did not
check the sensors before their shift began (Tr. 3831, 3834-35, 3848,
3878). Similarly, Puentes testified that he witnessed jams occur in
multiple areas of his assigned machine, yet production continued (Tr.
2753-56, 2780-81). Both witnesses displayed a hostile attitude towards
NEC and many aspects of their testimony were inherently questionable.
Moreover, their claims were effectively rebutted by the manifestly
knowledgeable testimony of NEC's witnesses, particularly Ginzburg,
Ramos, and employee Cleto.

Thus, given the location of the separator disks, the more than
three-inch height of the stack on which a new stack of blanks was
placed, and the presence of a sensor which tripped once the stack's
height dropped below three inches, the hands of an employee loading a
feeder with blanks remained well outside of any zone of danger presented
by the unguarded rotating separator disks. Accordingly, the allegations
in connection with the separator discs are unfounded.

*Rotating Parts [Subitems(c) & (d)]*

Under subitem (c), the Secretary alleges, in addition to the separator
disc allegations, that employees were exposed to unguarded rotating
parts located in the delivery and feeder sections of seven folding
machines (Tr. 1630, 1636; Exhibit C-21F).[35] Washington testified that
she observed employees reaching quickly into the "area" of these
rotating parts in order to remove jammed envelopes and/or prevent the
envelopes from jamming (Tr. 1560-61, 1593, 1636-37).[36] She stated that
Ginzburg told her during her inspection that it was normal operating
procedure for employees to do this in order to prevent the envelopes
from jamming (Tr. 1638-39).

Ginzburg flatly denied making any such statement. He testified that it
was simply not possible for an employee to anticipate when a folding
machine was about to jam (Tr. 2856, 3403-04, 3406).[37] As indicated
supra, these machines operated at very high speeds, making it virtually
impossible for an employee to visually observe the onset of a jam, let
alone actually reach into any area of the machine to pull out envelopes
while the machine was still in production (Tr. 1988-94, 2856, 3996-97;
Exhibit C-18). Furthermore, should a paper jam actually occur, it has
already been established that the folding machines were equipped with
sensors that would immediately halt production (Tr. 2855-58, 2863;
Exhibit R-64). The Secretary failed to provide credible proof of
employee exposure to any hazard presented by the unguarded rotating
parts of the machines cited under subitem (c).

Under subitem (d), the Secretary alleges that an employee was exposed to
an unguarded rotating part located at the rear of a Latex machine (Tr.
1628; Exhibit C-21E). According to Washington, she observed an employee
reach into the "area" to remove jammed envelopes, coming within one inch
of two large rotating disks (Tr. 1533-36, 1751, 2452-53; Exhibit C-21E).
She had difficulty explaining exactly where the jammed envelopes were
located in respect to these disks (Tr. 2451-54, 2460-63; Exhibit C-21E).
While he acknowledged that a jam could occur in this area of the Latex
machine, Ginzburg asserted that a sensor would halt production in such
instances, and that there was no reason for an employee to place his
hands in this area during the course of normal production (Tr. 3094-97).
Ginzburg's testimony, marked by intense knowledge of the equipment and
production process, is creditable and convincing. The Secretary failed
to provide credible proof of employee exposure, actual or potential, to
any hazard presented by an unguarded rotating part on the cited Latex
machine. Accordingly, both subitems (c) and (d) are vacated.

*Pinch Point [Subitem (e)]*

Under this subitem, the Secretary alleges that employees were exposed to
an unguarded pinch point located at the "patter" of three folding
machines. The patter consists of several fingerlike metal extensions
that are secured at one end, while the other end raises up and down,
"patting" envelopes as they travel through production (Tr. 1566,
1570-71, 3176; Exhibits C-18, C-21F, C-21G, C-21H, & R-72). During her
testimony, Washington failed to explain exactly what function the patter
served. Ginzburg testified that it served to slow an envelope's forward
progress during production (Tr. 1571, 3175-78). Washington testified
that she observed three employees reaching in front of and behind the
patters on the cited machines in order to prevent a jam from occurring
and/or to remove jammed envelopes (Tr. 1567, 1571-73, 1576-77, 1630-32,
1634, 1637, 1751, 2481-83; Exhibits C-21G, C-21G, C-21H & R-41). Her
inspection notes indicate that she observed all three of these employees
engaged in the same conduct at the patters of their respective machines
over a fifteen-minute period (Exhibits R-41 & R-56a at 3). Estimating
that the employees came within an inch or two of the patter when
removing envelopes from this area, Washington claimed that their fingers
could have become caught in the pinch point created by the movements of
the patter (Tr. 1566, 1575-76, 1634).

The evidence indicates that both the speed and height of the patter made
it virtually impossible for an employee to remove envelopes from this
area during production (Tr. 3181-82). According to Ginzburg, the patters
on these machines operated at a speed of 8.3 strokes per second and
would raise to a height of only about 3/4 of an inch (Tr. 3176,
3179-80). On rebuttal, Washington estimated that the patter operated at
a speed of one stroke per second (Tr. 2471-73, 2481-83, 3747-53,
3797-98; Exhibits C-63a & C-63b). The video segments on which she based
this estimate do, in fact, suggest a somewhat slower patter speed than
that indicated by Ginzburg (Tr. 3751-52, 4059-60; Exhibits C-63a &
C-63b). However, even at the slower speed depicted by the video an
employee would still have to move very quickly in order to reach under
the fingers of the patter and successfully remove an envelope while the
machine was in production, particularly since the space between a moving
envelope and the raised patter measured less than one inch (Exhibits
C-63a & C-63b). Given the patter's speed and the fact that the envelopes
travel underneath the patter, it would be impossible for an employee to
anticipate the occurrence of a jam, and should one occur, a sensor would
immediately halt production (Tr. 3182-84, 4065-66). Ginzburg testified
that employees had no reason to place their hands in this area during
production (Tr. 3182-84). The Secretary failed to provide credible proof
of employee exposure, actual or potential, to any hazard presented by
the unguarded patters of the cited machines. Accordingly, this subitem
is vacated.

*Willful Citation 2, Item 2*

Under this item, three subitems are in dispute, all of which involve
unguarded ingoing nip points in three different areas of various folding
machines.

Under subitem (a), the Secretary alleges that employees were exposed to
an unguarded ingoing nip point at the delivery area of five folding
machines (Tr. 1855-56; Exhibits C-23, C-26A & C-26B).[38] Compliance
officer Washington testified that she observed three employees reach
into this area of their assigned machines during production to remove
envelopes that had flipped out of order (Tr. 1837-38, 1845-46, 1858-62,
1886-87; Exhibits R-43& R-74).[39] In doing so, she testified, the
employees came within two inches of an unguarded ingoing nip point
created by two rotating cylinders (Tr. 1855-57, 1859-60, 1880).

Ginzburg testified that these cylinders presented no hazard to employees
since one of them did not rotate, but was actually a stationary part of
the machine's vacuum well (Tr. 2903-07, 2911-12). Although he
acknowledged that a six-inch-wide ingoing nip point did exist to the
right of these cylinders, he maintained that it was adequately guarded
by a 36-inch-wide piece of Lexan plastic (Tr. 2904-05, 2907-09, 2915).
He stated that after NEC was cited in 1992 for failing to guard the
delivery areas of the two RW machines cited here, guards were installed
not only on these machines, but also on the RH machines currently cited
here (Tr. 2898-2903, 2920; Exhibit C-6). His testimony is supported by
two video stills submitted into evidence by the Secretary which depict
an RW and RH machine, both of which are clearly shown to be equipped
with plastic shields (Tr. 1853-54; Exhibits C-26A & C-26B). Although
Washington claimed that at the time of her 1994 inspection, guards were
present only on the two machines shown in the video stills, it seems
unlikely that NEC would selectively guard only these machines,
particularly where the RH machine was not one of the two machines
originally cited in 1992 (Tr. 1846, 1880, 1883-84).

Ginzburg testified that there was no reason for an employee to reach
under the shield during production (Tr. 2918). Moreover, he stated that
the ingoing nip point located underneath the shield could not be
accessed by an employee because the opening at the side of the guard
measured only about one inch and there was a rotating, spiked wheel
positioned above the ingoing nip point (Tr. 2907-08, 2917-20).[40] The
Secretary's case lacks credible proof of employee exposure to an ingoing
nip point hazard in the delivery area of the cited folding machines.

Under subitem (b), the Secretary alleges that employees were exposed to
two unguarded ingoing nip points located in the transfer areas of six
folding machines (Tr. 1896, 1898-1931, 1955-57, 1961-63, 1967; Exhibits
C-27A to C-27F, C-28 & C-29).[41] NEC concedes the existence of one of
the nip points identified by Washington; the second, according to
Washington, was located just to the right of the first and was created
by two rotating cylinders (Tr. 1900, 1903-04, 1909-10; Exhibit C-27A to
C-27F). Since both of these cylinders are not visible in video stills of
the cited area, Washington's identification of the second nip point was
based upon a small diagram she drew in her inspection notes (Tr.
1915-31, 1967-69; Exhibits C-28 & C-29). Given the configuration of this
equipment as depicted in the video stills, as well as Washington's
diagram, it seems unlikely that an employee reaching into this area
could actually access any "zone of danger" presented by the alleged
ingoing nip point.

Washington stated that she observed six employees reaching quickly into
the "areas" of both ingoing nip points to remove jammed envelopes from
the cited machines (Tr. 1934-38, 1941, 1943, 1969-70, 2523-24; Exhibit
R-45). She maintained that when she asked the employees why they were
engaged in this conduct, they told her that the jammed envelopes had to
be removed in order to avoid disrupting production (Tr. 1976-79).
However, Washington's testimony regarding employee exposure was far from
being persuasive. Initially, she testified that the employees she
observed were preventing a jam from occurring, then later "clarified"
that her inspection notes indicated the employees were removing an
actual jam (Tr. 1981, 1986-87, 1995-96; Exhibits C-28 & R-45).
Washington also claimed to have witnessed jams occurring in the "areas"
of both ingoing nip points, but could not pinpoint the exact location of
the jams and did not recall whether they occurred at the same time (Tr.
2525-26). In fact, Washington stated that all six of the cited machines
experienced two jams in the transfer area over the course of less than
an hour, yet all six continued to operate (Tr. 2520-22; Exhibits R-45 &
R-56a at 1).

Ginzburg testified that the design of these machines prevented a jam
from ever occurring in the transfer area. He asserted that he had never
witnessed a jam occur in this area during his seventeen-year tenure with
NEC, and that there was no reason for an employee to place a hand in the
transfer areas of the cited machines in the manner alleged by Washington
(Tr. 2925, 2931-35). Furthermore, Ginzburg stated that extended guards
were installed on all of the machines cited here after NEC was cited in
1992 for failing to guard an "inrunning nip point" in the transfer area
of the same machines (Tr. 2920-21, 2934; Exhibit C-6).[42] These guards
are visible in video stills of two of the machines cited here (Tr.
1938-39, 2922-24; Exhibits C-27 A to F). Ginzburg's testimony is
convincing. The Secretary failed to provide credible proof of employee
exposure to any hazard created by the ingoing nip points in the transfer
area of the cited machines.

Under subitem (c), the Secretary alleges that employees were exposed to
an unguarded ingoing nip point created by the gum roller and patch
applier of five folding machines (Tr. 1999-2001; Exhibit C-30). Although
the Secretary concedes that all of these machines had a 14-inch by
14-inch Lexan guard mounted over this area, Washington claimed to have
observed five employees reaching behind the left side of the guard in
order to clean "rollers" with a rag or a brush and remove jammed
envelopes (Tr. 2001-04, 2009-17, 2532-33; Exhibits C-30 & R-47). While
she acknowledged that these tasks were two separate operations, she
failed to indicate which of the two tasks the employees she observed
were performing (Tr. 2009-10, 2013-14, 2534-35). Washington's inspection
notes only indicate that over the course of forty minutes, she observed
all five employees engaged in both tasks on their respective machines
(Tr. 2532-33; Exhibits R-47 & R-56a at 3). She also maintained that
three inches on either side of the guards was exposed and that employees
reaching into this area came within two inches of the ingoing nip point
(Tr. 2002, 2010; Exhibit R-47).

Ginzburg testified that the area which Washington identified as an
ingoing nip point actually consisted of only one rotating cylinder whose
function was merely to transfer the clear plastic film which was placed
over the opening of a window envelope (Tr. 2938 ). With no envelopes
moving through this area, it is not clear how Washington could have
observed employees removing jammed envelopes, let alone doing so while
the machine remained in production. Ginzburg also testified that there
were no "rollers" in this area to clean, and any clean-up operation
would be performed at the start of each shift, not during normal
production (Tr. 2939-40). Ginzburg explained that the Lexan guards
mounted over the cited area were specially manufactured at the plant and
installed on the machines in 1992 after NEC was cited for failing to
guard ingoing nip points in this area of the same machines (Tr. 2935-36;
Exhibit C-6). As pictured in two video stills of the same machine, the
opening at the side of these guards appears much smaller than three
inches; Ginzburg estimated that the opening measured no more than half
an inch and he maintained that there was no way an employee could
realistically access the area behind the guard (Tr. 2939-40; Exhibits
C-30 & R-66). The Secretary has failed to prove employee exposure to an
ingoing nip point hazard in the gum/patch area of the cited machines.
Accordingly, this subitem is vacated.

*Machine Guarding under § 1910.212(a)(2)*

This standard requires, in relevant part, that guards shall be affixed
to the machine where possible and secured elsewhere if for any reason
attachment to the machine is not possible.

*Willful Citation 2, Item 3*

Under three subitems, (a), (b), and (c), the Secretary alleges that the
metal guards located in the delivery areas of seven folding machines and
in the scoring areas of twelve folding machines were not secured or
interlocked so that each machine would stop automatically once the guard
was lifted (Tr. 2143-44, 2191; Exhibits C-29, C-38 to C-45).[43]
Washington testified that the guards in question were attached to the
machines only by a piano hinge which allowed employees to raise and
lower the guards during production, exposing them to ingoing nip points
located in the delivery area and "blades" located in the scoring area
(Tr. 2145-46, 2150-51, 2166-67, 2191, 2193-95, 2224, 2229; Exhibits
R-48, R-50, & R-67).[44] She stated that the machines were not equipped
with interlock devices which would halt production if the guards were
raised (Tr. 2162-63).[45]

Of the 19 machines cited, Washington admitted to having observed only
three machines on which three employees were reaching quickly into the
delivery area underneath the raised guard to remove jammed envelopes
(Tr. 2152-58, 2163-65, 2167-68, 2229, 2555; Exhibits C-39, R-48 at 63,
65-66, & R-56a at 1). For the remaining 16 machines, which includes all
of those cited for unsecured guards in the scoring area, Washington
"reconstructed" the exposures based upon a statement made to her by v.p.
of engineering Ginzburg in which he allegedly admitted knowing that
employees "were working with the guards in the up position" (Tr. 2152,
2158-61, 2177-82, 2195-96, 2204-05, 2209-11, 2226-27, 2229; Exhibits
R-48 & R-77).[46] As indicated supra, p. 21, she conceded that
Ginzburg's comment was a general one in that he never identified a
specific machine or area in which he allegedly observed such conduct
(Tr. 2183-87, 2212-13, 2227). Also, his purported statement, as
testified to repeatedly by Washington, indicates only that employees
"worked" on machines with the guards raised, and not that they, during
the normal course of their duties, actually reached into the areas
exposed by the raised guards.

As discussed supra, neither the citation nor Washington's inspection
notes clearly indicate that the documented observations for 16 of the 19
machines cited were not her own. In fact, both the citation and
corresponding inspection notes contain three separate dates and various
times at which these observations were allegedly "made". Moreover, most
of the inspection notes which correspond to this citation were never
amended to reflect their "reconstructed" status.[47] These actions alone
render Washington's findings under this item completely unreliable.

With regard to the delivery area of the cited machines, NEC disputes the
existence of a hazard. According to Ginzburg, the steel hood which
Washington called a "guard" is actually a sound barrier and splash guard
with no safety function whatsoever (Tr. 2946-47, 2950-51; Exhibit R-67).
He testified that while the hood, which was lined with acoustical foam
rubber, was sometimes raised by employees during production for certain
operations, the two rotating cylinders located underneath the hood
created only an outgoing, not ingoing, nip point and therefore,
presented no hazard to employees (Tr. 2947-50, 2954).

With regard to the scoring area of the cited machines, NEC contends that
the guards in question were, in fact, equipped with interlock devices
that served to stop production once the guards were raised. Ginzburg
testified that after NEC was cited in 1992 for failing to interlock the
guards on all but two of the machines cited here, interlock devices were
installed on all of the machines equipped with guards in the scoring
area (Tr. 2960-65, 2989-90; Exhibit C-6). According to Ginzburg, the
interlock devices were observed by compliance officer Zurlo during his
follow-up visit to the plant to verify abatement of the 1992 citation
items and were in place during Washington's 1994 inspection (Tr.
2965-67, 2990-91).

As was the case with the sensors, the Secretary acknowledges in her
post-hearing brief that the cited machines were equipped with
interlocks, but argues that they were broken and/or disconnected (Brief
at 31). Washington testified that during her inspection, she asked
Ginzburg to demonstrate these devices by raising the guards in the
scoring area of several of the cited machines, but none of the machines
stopped operating (Tr. 2173-74, 2191, 2204, 2214, 2224, 2229-30).
Ginzburg, on the other hand, testified that the only "guard" he raised
for Washington during the inspection was actually a sound barrier hood
which was not interlocked because it does not serve to protect employees
from any type of mechanical hazard (Tr. 2986, 2991, 3407). Given
Washington's documented credibility problems and her general lack of
knowledge regarding NEC's machinery and equipment, particularly with
regard to this citation item, Ginzburg's testimony is credited on this
point.

As established supra, it would not be possible for employees to remove
jammed envelopes from the scoring area during production since any jam
occurring there would trip a sensor and immediately halt production (Tr.
2971-76, 2993, 3200; Exhibit C-43).[48] It was also not possible for an
employee to anticipate the occurrence of a jam in the scoring area given
the speed of production and the fact that the area was covered by a
guard (Tr. 2977, 2992, 3995-97). As Ginzburg testified, employees had no
reason to place their hands in this area during production (Tr. 2977-78,
2992-93).[49] The Secretary failed to provide credible proof of employee
exposure to any hazard created by the interlocked guards located in the
delivery and scoring areas of the cited machines. Accordingly, this item
is vacated in its entirety.

*Machine Guarding under § 1910.212(a)(3)(ii)*

This standard requires that the point of operation of machines whose
operation exposes an employee to injury, shall be guarded with a
guarding device that conforms 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.

*Willful Citation 2, Item 4*

This item is divided into 5 subitems, but only one remains at issue.
Subitems (b), (c), and (d) were dismissed at the hearing as duplicative,
and subitem (a) was withdrawn by the Secretary in her post-hearing brief
(Tr. 2314-16; Brief at 24).

In her post-hearing brief, the Secretary seeks reconsideration of the
decision to dismiss subitems(b) and (d) as duplicative of the conditions
cited under subitems (b) and (c) of the third item of the same citation
(Tr. 2317; Brief at 27). The Secretary argues that the two dismissed
subitems are based upon a different set of facts than the two latter
issues (Brief at 28). However, all four of the subitems involve the same
machines, observed at the same time, on the same day, with the same
operators allegedly exposed to the same hazard created by the same
alleged inadequate guards (Tr. 2309-16, 2627, 2640). As indicated at the
hearing, the standards under which these violations are cited also
require an employer to provide the same type of protection: adequate
machine guarding (Tr. 2313). /See J.A. Jones Constr. Co./, 15 BNA OSHC
2201, 2207, 1991-93 CCH OSHD P 29,964 (No. 87-2059, 1993) (violations
are duplicative where the two standards cited are directed at the same
conduct). Thus, the dismissal stands.

Under subitem (e), the remaining matter in dispute, the Secretary
alleges that the Lexan guards over the gum-applying sections of two
folding machines did not adequately guard a point of operation (Tr.
2319-20; Exhibits C-49 & C-50). According to Washington, the guards were
twenty inches wide and twelve inches long, but failed to protect
employees from an ingoing nip point created by two seven-inch diameter
stamps and a twenty-inch diameter rotating cylinder (Tr. 2320, 2326;
Exhibit R-54). She testified that she observed an employee reach into
the "area" of these nip points from the left side of each guard to clean
the rear rollers on the cited machines (Tr. 2321-25, 2328-29; Exhibits
C-49 & R-54).[50]

Washington's identification of the hazard in this area was far from
clear. Having conceded that the ingoing nip point was not depicted in
either of the video stills of the alleged condition, she indicated that
the basis for her testimony regarding the condition was simply
"observation", then failed to provide any details regarding how the two
"stamps" and one rotating cylinder actually operated to create a nip
point (Tr. 2320, 2326-28). Similarly, Washington's testimony failed to
indicate what function a "rear roller" served, where it was located in
relation to the identified ingoing nip point, and why an employee would
need to clean it. Without such information, there is no satisfactory
foundation for assessing the adequacy of the Lexan guards.

Ginzburg, on the other hand, provided detailed testimony about the
folding, transferring, and gumming operations performed in the area
identified by Washington (Tr. 3026-27; Exhibit C-49). According to
Ginzburg, there was no ingoing nip point located in this area since only
one of the three shafts located here actually rotated; this rotating
shaft had a special pad attached to it that applied gum to each envelope
transferred through the area (Tr. 3026-30; Exhibit C-49). In fact,
Ginzburg indicated that the Lexan guard covering this area served no
safety purpose, but acted only as a splash guard (Tr. 3033).
Furthermore, Ginzburg testified that there were no "rollers" in this
area that required cleaning (Tr. 3031). Thus, he asserted there was no
reason for employees to reach into the area as claimed by Washington
(Tr. 3030, 3034-35). Ginzburg's testimony is persuasive. There being no
reliable proof of employee exposure to an ingoing nip point hazard in
the gum applying section of the cited machines, the item is vacated.

Based upon the foregoing findings and conclusions, it is

ORDERED that serious citation 1, item 1, as amended, in docket number
94-3547 alleging violation of § 1910.147(c)(7)(iii)(A) or, in the
alternative, the general duty clause of § 5(a)(1) of the OSH Act, 29
U.S.C. § 654(a)(1), is vacated. It is further

ORDERED that serious citation 1, item 1, in docket number 94-2968,
alleging violation of § 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1),
having been withdrawn by the Secretary, is vacated. It is further

ORDERED that willful citation 2, item 1, alleging violation of §
1910.147(c)(4)(i), is vacated. It is further

ORDERED that willful citation 2, item 2, alleging violation of §
1910.212(a)(1), is vacated. It is further

ORDERED that willful citation 2, item 3, alleging violation of §
1910.212(a)(2), is vacated. It is further

ORDERED that willful citation 2, item 4, alleging violation of §
1910.212(a)(3)(ii), is vacated; subitem (a) having been withdrawn by the
Secretary, subitems (b), (c), (d) having been dismissed as duplicative,
subitem (e) having been vacated on the merits. It is further

ORDERED that repeat citation 3, items 1a, 1b, and 1c, alleging violation
of § 1910.20(g)(1), is vacated. It is further

ORDERED that repeat citation 3, item 2, alleging violation of §
1910.37(q)(5), is vacated. It is further

ORDERED that repeat citation 3, item 3, alleging violation of §
1910.147(c)(4)(ii), is vacated. It is further

ORDERED that repeat citation 3, item 4, alleging violation of §
1910.212(a)(1), is vacated; subitem (a) having been withdrawn by the
Secretary, subitems (b), (c), (d), (e) having been vacated on the
merits. It is further

ORDERED that citation 4, alleging violation of § 1904.2(a), having been
withdrawn by the Secretary, is vacated.

 

RICHARD DEBENEDETTO
OSHRC Judge

Dated:

Boston, Massachusetts

------------------------------------------------------------------------

[1] At the hearing, compliance officer Brennan, who recommended that the
violation be issued under the machine guarding standard, conceded that
the cited machine's gears were, in fact, guarded by location (Tr. 208-09).

[2] To produce window envelopes on this type of machine, the operator
feeds stacks of paper or "blanks" into the machine, each of which are
cut with a die, leaving a rectangular opening that serves as the
envelope's window (Tr. 47-48, 419, 438-39). After seal gum and
cellophane are applied, the blank is folded to create a finished
envelope (Tr. 47-48, 419, 438-39; Exhibit R-12).

[3] The cited ANSI standard, B169.1990 § 4.3.1(3), provides in part as
follows:

    4.3.1 /Operator Training/. Before being permitted to operate a
    machine independently, the operators shall be trained to:

    * * *

    (3) Keep hands and other parts of the body out of the points of
    operation and other dangerous parts of the machinery when in operation.

[4] The adjuster assigned to Mendoza's department that night did not
report for work (Tr. 332-33, 367). However, Pastor and NEC's safety
director, Kenneth Heym, testified that on the night of Mendoza's
accident, there were approximately 12 to 14 adjusters present on the
manufacturing floor and available to perform repair work (Tr. 331-32, 445).

[5] Two of the citations were withdrawn by the Secretary: serious
citation 1, alleging a violation of the general duty clause, was
withdrawn during the hearing, and other than serious citation 4,
alleging a violation of a reporting regulation, was withdrawn prior to
the hearing (Tr. 302, 709; 5/16/96 Letter; Secretary's Pre-Hearing
Exchange).

[6] The Secretary amended this item to allege a repeat violation in the
alternative (Tr. 600; Amended Complaint 12/18/95).

[7] In addition to periodic repairs, Benitez testified that his job
duties included observing the WEB-3 machine's production, monitoring the
level of glue in the tray, and checking the machine's oil and air
pressure levels (Tr. 799-802, 821, 824).

[8] According to Ginzburg, the rollers are powered by a different branch
of electricity than the rest of the machine (Tr. 731-33).

[9] Although Washington maintained that the adjusters later informed her
during separate telephone conversations that the cleaning work was, in
fact, completed over a two-hour period during which the WEB-3 machine
was not locked out, these conversations took place well after the
citation and complaint were issued (Tr. 565, 619, 623-25, 629, 634-35,
666-67). Neither adjuster could recall informing the compliance officer
that they intended to perform additional work on the WEB-3 machine (Tr.
776-78, 815, 832, 834, 839). There was also considerable disagreement
between Washington and the two adjusters regarding the circumstances of
these telephone conversations, such as how many times the employees
spoke with Department of Labor personnel and whether the discussions
were with counsel for the Secretary, Washington, or both (Tr. 621,
625-26, 779-85, 832-33, 840, 842).

[10] Although compliance officer Washington indicated that she did not
consider the videotape to be part of NEC's lockout/tagout program, one
could reasonably regard the videotape as a supplement to the written
program in that it "documents" additional information not found in the
written program (Tr. 906-10, 921-22, 995-96).

[11] The element designated as (C) under the standard covers the
"specific procedural steps for the placement, removal and transfer of
lockout devices or tagout devices and the responsibility for them".

[12] These elements are: (1) The machine or equipment has no potential
for stored or residual energy or reaccumulation of stored energy after
shut down which could endanger employees; (2) the machine or equipment
has a single energy source which can be readily identified and isolated;
(3) the isolation and locking out of that energy source will completely
deenergize and deactivate the machine or equipment; (4) the machine or
equipment is isolated from that energy source and locked out during
servicing or maintenance; (5) a single lockout device will achieve a
locked-out condition; (6) the lockout device is under the exclusive
control of the authorized employee performing the servicing or
maintenance; (7) the servicing or maintenance does not create hazards
for other employees; and (8) the employer, in utilizing this exception,
has had no accidents involving the unexpected activation or
reenergization of the machine or equipment during servicing or maintenance.

[13] At the hearing, the Secretary also argued that NEC failed to
establish this element of the exception because it has already
acknowledged in the companion case that the WEB-3 machine had two
sources of electrical energy - one for the glue rollers and one for the
machine (Tr. 1111). Ginzburg explained, however, that the machine
actually had only one source of electrical energy which branched into
three different voltages. This feature prevented locking out the machine
while keeping the glue rollers operational. (Tr. 731-33, 1113-15).

[14] There was some confusion as to the date on which the cited
condition was actually observed by Washington. The citation indicates a
date of March 4, 1994, but Washington testified that she was not in the
plant on that day (Tr. 1209-10). Although her case file documents
associated with the inspection do not clearly resolve the question, she
maintained that she observed the condition on March 7, 1994 (Tr.
1208-10, 1300-02, 1349-52, 1358-60, 1371-74, 1384-85; Exhibits R-24,
R-26 & R-30).

[15] Initially, Washington suggested that exit directional signs would
still be required even if the stacked boxes were removed, so that the
view of the nearest exit was not obstructed; she later acknowledged that
under such circumstances, the standard would not "come into play" (Tr.
1135-36, 1138, 1146).

[16] Although she marked only about a dozen locations in the
manufacturing area and her inspection notes document a concern only with
those employees who operated machinery at these locations, Washington
claimed that all 295 employees who worked at the plant were potentially
exposed to the hazard created by this alleged violation (Tr. 1194, 1206,
1211-13, 1226-27; Exhibit R-24).

[17] According to Washington, these notes, documented on the "OSHA 1B"
form, were primarily taken, along with her field notes, during the
walkaround inspection (Tr. 1353-57, 1365-70). She explained that the
OSHA 1B notes were finalized only after all of the necessary information
had been obtained, sometimes over the course of several days; she also
indicated that her field notes were discarded after being copied into
her safety narrative (Tr. 1357, 1364-65, 1367-70). In its post-hearing
brief, NEC claims that Washington's disposal of her field notes violated
OSHA's Field Operations Manual (FOM) (now known as the Field Inspection
Reference Manual or "FIRM") and requires drawing the inference that
these notes "would be harmful...would not support....or would be
contrary to the contents of her Case File..." (Brief, Volume 13 at 2).
However, it is not clear from the record that Washington's conduct was,
in fact, contrary to the FOM, nor is it evident that the information
contained in her field notes would have clarified the already
inconsistent documents in her case file. See supra n.17, and discussion
infra at p.19.

[18] That NEC placed a purchase order for exit directional signs on
March 8, 1994, does not in and of itself establish that such signs were
not installed at the time of the inspection on March 4 or March 7, 1994
(Tr. 1284-86; Exhibit C-16). According to Ginzburg, the March 8th order
was placed for additional signs to replace broken ones in the warehouse
area of the plant (Tr. 1308-09, 1312-15, 1334).

[19] In 1996, the standards set forth at § 1910.20 were redesignated as
§ 1910.1020. 61 Fed Reg. 31430 (June 20, 1996).

[20] The definition of "employee exposure record" includes MSDSs. §
1910.20(c)(5)(iii).

[21] In her post-hearing brief, the Secretary argues that NEC's failure
to call Santos Silva, an employee listed on its pre-hearing exchange, as
a witness requires us to draw the inference that his testimony would
have been adverse to NEC (Brief at 58, n.57). Silva was one of the two
employees whom Washington interviewed in connection with this item. The
other employee, Rafael Puentes, appeared at the hearing as a rebuttal
witness for the Secretary; he testified that the MSDS station existed as
depicted in the photographs taken by safety director Heym, but was
uncertain as to the year in which he first observed it (Tr. 1486-87).
Given that Puentes's testimony on this issue is already on the record as
a witness for the Secretary, it is not clear what new information Silva
could have provided had he been called to testify. More importantly, the
Secretary could have called Silva as a witness herself just as she did
Puentes. Because Silva was susceptible to subpoena by either party, the
uncalled-witness rule is inapplicable.

[22] A few of the folding machines were equipped with a special
attachment that held large rolls of paper onto the machine for
processing in lieu of pre-cut blanks (Tr. 1958-59).

[23] At the hearing, NEC was permitted to submit an amended copy of this
exhibit that conforms to the evidence of record (Tr. 4071-73; Exhibits
R-56 & R-56a).

[24] Although Washington explained that her observations did not
actually occur at the same time, but most likely over the course of
several minutes, she failed to explain why her inspection notes do not
reflect as much (Tr. 2298-99, 2366).

[25] With the exception of employee Vasquez, Washington admitted at the
hearing that she did not actually observe these employees remove jammed
envelopes from all three sections of their assigned machines at the
dates and times indicated in her notes. See discussion infra p.21, 34.

[26] Although employee Mendoza claimed that he once operated two
machines at the same time, his testimony was effectively rebutted by
supervisor Pastor, George Ramos, head adjuster, and Luis Cleto, a
co-worker (Tr. 3835-36, 3904, 3907-08, 3920-21, 3965-68, 3993-94).

[27] The amended pages were designated in all but one case with the same
page number as the original page, followed by the letter "a" (Tr. 3143,
3146; Exhibits R-56a, R-58, R-59, R-73, R-74 & R-77).

[28] Washington maintained that these conditions were cited under
separate citation items based upon their respective characterizations.
Specifically, she testified that for those conditions which were
identical in terms of machine and unguarded area to that which had been
previously cited in 1992, the item was characterized as willful; for
those conditions which involved the same machines but different areas
than that previously cited, the item was characterized as repeat (Tr.
1505, 1833-34). However, according to v.p. of engineering Ginzburg, this
approach does not hold true for all of the violations alleged here. For
instance, he testified that while the /machines/ cited under willful
citation 2, item 4, instance (e) were also cited in 1992, the
/conditions/ for which they are currently cited do not match those cited
in 1992 (Tr. 3026; Exhibit C-6 at 8).

[29] Subitem (a) was withdrawn by the Secretary (Post-Hearing Brief at 10).

[30] In her post-hearing brief, the Secretary stated that Washington
observed only four employees performing this task, having apparently
neglected to include those employees working on the machines cited under
instance (c) and documented in Washington's corresponding inspection
notes (Tr. 1747-51; Exhibit R-40).

[31] Washington was unable to identify, and did not document, the exact
height of paper in the feeder for each exposed employee she observed
(Tr. 2366-69, 2383-84).

[32] In 1990, an NEC machine operator suffered injury to his hand when
it became caught between a "feeder disc" and cylinder while he was
resetting an MO machine (Tr. 3459-62; Exhibit C-52).

[33] On rebuttal, compliance officer Zurlo testified that he did not
cite the unguarded separator disks in 1992 because he never observed an
employee allow the stack of blanks to deplete to less than twelve inches
in height (Tr. 3580-81, 3637-38). Yet during the course of just two
visits to the NEC plant with Washington in 1994, he claimed to have
observed employees on one or two occasions loading and straightening
blanks with their hands three to four inches from rotating separator
disks (Tr. 3580-81, 3639). He was unable to recall which employees were
engaged in this conduct or on which machines they were working (Tr.
3639-40). Zurlo's testimony strains credulity and contrasts sharply with
that of Washington who was unable to specify the height of the stack of
blanks on those occasions when she observed the same process and failed
to indicate the distance between the employees' hands and the rotating
separator disks.

[34] On rebuttal, the Secretary introduced a videotape of Ginzburg
attempting to demonstrate the operation of an infrared sensor for
Washington (Tr. 3758, 3763; Exhibit C-64). In the videotape, Ginzburg is
seen waving a pencil, then an envelope, in front of a small box located
in the scoring area of a folding machine, but the machine continues to
run (Tr. 3763-64; Exhibit C-64). At the hearing, Ginzburg explained the
sensor was not broken, but that he simply had not realized that this
type of sensor could not be activated by breaking the beam alone; a
sequence switch must also be tripped (Tr. 4036-37, 4039-41, 4073-74).

[35] Having failed to specifically identify these rotating parts by
their "technical name" in the citation, Washington explained at the
hearing that the parts in the delivery section of the cited machines
were rotating cylinders known as "sill flat folders"; she never
identified the rotating parts in the feeder section (Tr. 1559-63).

[36] Although the Secretary states in her post-hearing brief that
Washington observed six employees exposed to these rotating parts, her
corresponding inspection notes only detail the exposure of six employees
to the rotating separator disks on these machines (Tr. 1747-51; Exhibit
R-40; Brief at 12); it is not clear from the record which employees, or
how many, were exposed to the rotating parts of these machines.

[37] Puentes's and Mendoza's claims that they reached into their folding
machines during production to remove stuck envelopes and prevent a jam
from occurring are not credible (Tr. 2796-97, 3837-42).

[38] At the hearing, the Secretary amended this subitem to allege that
the RW-2 machine, not the RW-3 machine, was in violation (Tr. 1834-35).

[39] As with the separator disks, Washington's claims regarding employee
exposure under this item were undermined by the two errors she
acknowledged at the hearing. First, she identified Gonzalez as the
exposed employee on two of the machines cited here with only a
fifteen-minute span between alleged observations (Tr. 1858-62; Exhibits
R-43 & R-56a at 4). As indicated supra, NEC employees were rarely, if
ever, assigned to more than one machine at a time. Also under this item,
Washington mistakenly identified Puentes as an exposed employee, an
error which, as previously discussed, she "corrected" by amending her
inspection notes to allege the exposure of a second employee whom she
also did not actually observe (Tr. 1887-89; Exhibits R-43, R-56a at 4, &
R-74).

[40] According to Washington, these guards did not protect employees
from exposure to the ingoing nip point she identified, but only
protected employees from the rotating wheel (Tr. 1844, 1855, 1868-70,
1874-79).

[41] Though the area of the machines are identified as the printing
section in her inspection notes, as well as the 1992 citation,
Washington testified that she learned at the closing conference that the
proper name for this section of the cited folding machines is transfer
area (Tr. 1986-87, 2921; Exhibit C-6)

[42] Should an employee attempt to bypass these guards for any reason,
Ginzburg testified, an interlock device would immediately halt
production (Tr. 2931-33). See interlock discussion infra p.35.

[43] At the hearing, the Secretary amended subitem (c) to allege that
the RW-2 machine, not the RW-3 machine, was in violation (Tr. 2229).

[44] Although she provided detailed testimony regarding the ingoing nip
point created by two rotating cylinders located in the delivery area,
Washington failed to specifically identify at the hearing the hazard to
be found underneath the scoring area guards (Tr. 2153-54, 2165-67;
Exhibits C-39 & C-41). Her inspection notes, however, reveal that she
identified "scoring blades" as the hazard in this area (Exhibit R-50).

[45] Ginzburg explained that interlock devices served to interrupt the
circuit breaker to stop the machine whenever the guard was raised during
production (Tr. 2965).

[46] As previously noted, Ginzburg flatly denied ever making such a
statement (Tr. 3402-03 ).

[47] Washington amended only those inspection note pages which relate to
the four machines cited under subitem (a) which she did not personally
observe and the one machine cited under subitem (c) which employee
Puentes allegedly operated (Exhibits R-48, R-50, R-58 & R-77). As noted
supra, these amendments consisted of merely adding the word
"reconstructed" to the beginning of the description.

[48] Mendoza's claim that he lifted the guard over the scoring area of
his assigned machine twenty times a day in order to remove envelopes and
prevent a jam from occurring lacks credibility (Tr. 3843-47, 3887-88).

[49] On rebuttal, compliance officer Zurlo testified that during his
1991 inspection of NEC and in the presence of Ginzburg, he observed
employees reaching into some of the currently cited folding machines to
remove stuck envelopes in an attempt to prevent the machine from
jamming; in doing so, these employees, according to Zurlo, came within
five to six inches of the adjacent scoring blades (Tr. 3543-46, 3550,
3554, 3557-58, 3565-66, 3626; Exhibits R-81 & R-82). This testimony was
offered for the limited purpose of rebutting Ginzburg's statement that
he never observed employees reaching into the folding machines to remove
envelopes during production, not to supplement the Secretary's
case-in-chief regarding exposure (Tr. 3548). Zurlo's testimony, however,
was far from convincing. He failed to make note of these alleged
observations in any of his 1991 case file documents, even though he
claimed that the exposures he observed served at that time as the basis
for violations which charged NEC for failing to secure the guards
located over the scoring area (Tr. 3555, 3620-22; Exhibit C-6). He was
unable to recall how many employees he actually observed engaged in this
conduct and did not identify when or under what circumstances the
observations were made (Tr. 3624). Zurlo acknowledged that sensors
located in the scoring area "shut down" production on some of the
machines he observed (Tr. 3546-47). Accordingly, his vague and ambiguous
testimony fails to undermine Ginzburg's credibility on this point.

[50] According to her inspection notes, Washington witnessed the same
employee perform this task on two different machines over a ten-minute
period (Tr. 2328, 2593; Exhibit R-54).

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