“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2349 AMERICAN PACKAGE COMPANY, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 17, 1980DECISIONBefore: CLEARY, Chairman;BARNAKO and COTTINE, Commissioners.BY THE COMMISSION:??????????? This is a case under the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651?678 (?the Act?). A decision of Administrative LawJudge Abraham Gold is before the Commission for review pursuant to section12(j) of the Act, 29 U.S.C. ? 661(i). In that decision, the judge, among otherthings, affirmed items a, d, and e of a serious citation issued to Respondent,American Package Company, Inc., following an inspection of its premises. Eachitem alleges noncompliance with the standard at 29 C.F.R. ? 1910.212(a)(3)(ii).The judge assessed a penalty of $250.[1] Respondent petitioned forreview of these items, and Commissioner Barnako granted Respondent?s petition.[2] The judge?s decision isaffirmed in part and vacated in part.I??????????? Respondent, a paper box manufacturer, was cited for noncompliancewith 29 C.F.R. ?\u00a01910.212(a)(3)(ii)[3] in that it allegedlyfailed to guard the points of operation of eight wrapping machines (?wrappers?)and two paper cutters. In order to operate a wrapper, the operator, who sitsapproximately one and one half feet from the point of operation, receives acardboard blank from his or her right and a glued wrapper from a conveyor belton his or her left. The operator places the blank on the glued paper and putsthem on a wooden machine form. The operator then trips a foot pedal that causesa ram to descend onto the form block with force sufficient to cause a crushinginjury. The point of operation on the wrappers is 5 inches wide and 8 incheslong, the dimensions of the wooden form block, and approximately 10 incheshigh. The wrapper is equipped with a safety switch that can stop the machine atany point in the cycle.??????????? The two paper cutters are of the guillotine type and areequipped with two-hand tripping devices. By raising a lever on the left side ofthe cutter and lowering a lever on the right, the operator causes a blade todescend. The blade is approximately two feet long. The operator?s hands do notenter the point of operation if the two-hand tripping mechanism is usedproperly. The compliance officer testified that it was possible, however, tocircumvent the two-hand tripping mechanism by tying the left lever in theraised position, and thus operate the cutter solely by lowering the rightlever. This modification would allow the operator to have his or her free handwithin 2 inches of the point of operation and would expose the operator to thehazard of amputation of the fingers or hand. The handles on Respondent?smachines were not modified in any way at the time of the inspection in thiscase, and there was nothing to indicate that they had ever been modified or?tied up.???????????? The judge affirmed the citation as to both the wrappersand the paper cutters. He noted the testimony of the compliance officer thatthe eight handfed wrapping machines had no guards that would prevent themachine operators from placing their fingers within the point of operation. Healso observed that the two-hand tripping devices on the paper cutters were ?soconstructed that it was possible to tie up the left hand lever and thereby leavethe operator?s left hand free to penetrate the danger zone during theoperation.? After making these factual findings, the judge concluded that the?record establishes a violation of the cited standard.? He found the violationsto be serious and assessed a penalty of $250.IIA.??????????? On review, Respondent argues that the wrappers do notexpose their operators to injury during the operating cycle. Citing to AceSupply, Inc., 74 OSAHRC 75\/D2, 2 BNA OSHC 3194 1974?75 CCH OSHD ? 18,625(No. 5475, 1974), an unreviewed judge?s decision, Respondent contends thatbecause of the required use and location of the foot pedal the operator couldnot lean over the work table, place his or her hands under the ram, andactivate the machine at the same time. Respondent argues that there is noreason why the operator would insert his or her hand into the point ofoperation, nor indication as to how the operator might do so inadvertently.Respondent concludes that ?[s]hort of self-infliction, there is no way that anoperator can expose any part of his body to the danger zone of the wrappingmachine.? In addition, Respondent asserts that even if the wrappers presented ahazard within the meaning of 29 C.F.R. ?\u00a01910.212(a)(3)(ii), any furtherguarding would prevent operation of the machine and render it obsolete. Thisfactor, coupled with a history of no worker injury, establishes, according toRespondent, the affirmative defense of impossibility of compliance.??????????? In regard to the paper cutters, Respondent contends that29 C.F.R. ? 1910.212(a)(1)[4] specifically liststwo-handed tripping devices as an acceptable method of guarding. Respondentargues that the two-handed tripping devices were being used properly, that theSecretary conceded as much, and, therefore that any modification of themachines to defeat the purpose of the two-hand tripping device amounts tospeculation. In the absence of any evidence of modification or alteration,Respondent argues that the judge?s finding of a violation should be reversed inthe face of the explicit language of the standard. In the event the papercutters are found in violation of the Act, Respondent contends that knowledgeof the violation cannot be imputed to it because the applicable safety standardclearly states that two-hand tripping devices comply with the Act. Respondentcites as support the unreviewed judge?s decision in McMillan Book Co.,75 OSAHRC 65\/F12, 3 BNA OSHC 1380, 1974?75 CCH OSHD ? 19,635 (No. 6696, 1975).??????????? In conclusion, Respondent argues that the failure of thejudge to set forth the ?reasons or basis? for findings and conclusions ?on allmaterial issues of fact, law, or discretion presented on the record? asrequired by the Administrative Procedure Act (?APA?), 5 U.S.C. ? 557, requiresreversal. The Secretary of Labor did not file a brief, but indicated by letterthat he intended to rely on the decision of the judge.B.??????????? At the outset, we agree with Respondent that the judge?sdecision failed to comply with the APA. Section 557(c) of the APA requires thatthe judge?s decision include:(A) findings andconclusions, and the reasons or basis therefor, on all the material issues offact, law, or discretion presented on the record.?`The Commission need not,however, resort to the extreme remedy requested by Respondent. The Commissionhas the ultimate authority to make findings of fact, Accu-Namics, Inc. v.OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), and where, as here, the record issufficiently detailed and credibility is not an issue, see Asplundh TreeExpert Co., 78 OSAHRC 77\/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ? 23,033 (No.16162, 1978). The Commission can make those findings without remanding the caseto the judge. Consistent with this authority and responsibility, we also giveour ?reasons or basis? for these findings.??????????? In order to prove a violation of 29 C.F.R. ?1910.212(a)(3)(ii), the Secretary must demonstrate that the point of operationis unguarded and that, as a result, employees are exposed to injury. HughesBrothers, Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1978 CCH OSHD ?22,909(No. 12523, 1978). Here, the wrapper operators are seated 1 ? feet from thepoint of operation. The upper ram descends with force sufficient to cause acrushing injury. Respondent argues that such an occurrence is nearly impossiblebecause it would require the operator to reach over deliberately and hold hisor her hand underneath the descending ram. Nevertheless, it is possible for theoperator?s hand to be in the point of operation and receive a crushing injury.Respondent?s contention that it is impossible for the operator to place his orher hands into the point of operation and activate the machine at the same timeis without merit. The evidence demonstrates that the machine is initiallyactivated by depressing a foot-operated tripping device. The machine is alsoequipped with a hand-operated ?safety stop? which can stop the machine at anypoint during its cycle. Once the foot pedal is depressed the wrapping machinecompletes an operating cycle unless the ?safety stop? is operated by hand. Onceactivated, the release of the pedal does not, by itself, cause the machine tostop. Thus, an operator could step on the pedal to engage the wrapper and thenlean over and insert his or her hand into the point of operation. On thesefacts we conclude that the points of operation of the wrapping machines exposedthe operations to injury within the meaning of the cited standard.??????????? Respondent also claims that it is impossible to complywith the standard.[5]Respondent couches its argument in terms of impossibility of compliance, butactually argues that compliance with the standard would make it impossible tooperate the wrappers, thus arguing impossibility of performance. In order toestablish the affirmative defense of impossibility of performance, Respondentmust show that (1) compliance with the standard would preclude performance ofrequired work and (2) alternative means of employee protection are unavailable.M.J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCHOSHD ? 23,330 (No. 15094, 1979). Respondent?s general manager and a unionrepresentative testified that the wrapper could not be operated with thesuggested guarding, but Respondent did not consider making any modification tothe machines. Respondent?s vice-president stated on the record that the AreaDirector for the Occupational Safety and Health Administration stated that hecould make no recommendations as to guarding other than to ?completelyredesign? the machines. The Commission has not precluded requiring the redesignof machines in order to bring them into compliance with the Act. See F.H.Lawson Co., 80 OSAHRC ??, 8 BNA OSHC 1063, 1980 CCH OSHD ?2 4, 277 (No.12883, 1980) (defense of impossibility failed where Respondent made no attemptto find an appropriate combination of guarding techniques and operatingprocedures.) In the absence of any showing of attempts to place guards on themachines as presently designed, or to redesign the machines to install guards,we conclude that Respondent has failed to prove the defense of impossibility.C.??????????? Respondent?s paper cutters are provided with two-handtripping devices that, if used properly, prevent ?the operator from having anypart of his body in the danger zone during the operating cycle.? In KroehlerMfg. Co., 78 OSAHRC 88\/B9, 6 BNA OSHC 2045, 1978 CCH OSHD ? 23,110 (No.76?2120, 1978), the Commission recognized the efficacy of two-hand trippingdevices, but held that a two-hand tripping device must meet the performancecriterion of 29 C.F.R. ? 1910.212(a)(3)(ii). In MRS Printing, Inc., 78OSAHRC 84\/B10, 6 BNA OSHC 2025, 1978 CCH OSHD ? 23,102 (No. 76?3113, 1978), theCommission found that the operator of a guillotine paper cutter could engagethe left-hand lever of a tow-hand tripping device with his knee, therebyleaving his left hand free to enter the point of operation during the operatingcycle. For this reason, the Commission concluded that the two-hand trippingdevice had a design deficiency, i.e., it was not ?so designed and constructedas to prevent the operator from having any part of his body in the danger zoneduring the operating cycle? within the meaning of 29 C.F.R. ?1910.212(a)(3)(ii). In this case, however, the design and construction of thetwo-hand tripping device does meet the performance criteria of 29 C.F.R. ?1910.212(a)(3)(ii). There is also no evidence here that the guarding wascircumvented by Respondent or its employees. Compare Long Mfg. Co., N.C.,76 OSAHRC 50\/D6, 4 BNA OSHC 1154, 1975?76 CCH OSHD ? 20,658 (No. 9994, 1976), aff?d,554 F.2d 903 (8th Cir. 1977). We therefore cannot conclude that Respondent hasviolated the Act.??????????? In considering the penalty assessment criteria set out atsection 17(j) of the Act, 29 U.S.C. ? 666(i), we note the good safety record ofRespondent. In addition, although there was a violation of the Act, it was oflow gravity because the probability of an accident was low. We conclude that apenalty of $200 is appropriate.??????????? Accordingly, that part of citation 3 alleging a failureby Respondent to provide point of operation guarding for its eight wrappingmachines as required by 29 C.F.R. ? 1910.212(a)(3)(ii), is affirmed. Thatportion of citation 3 alleging that Respondent failed to properly guard itspaper cutters is vacated. A penalty of $200 is assessed.??????????? SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 17, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2349 AMERICAN PACKAGE COMPANY, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 24, 1977Appearances:Anthony Ginetto,Esq., for Complainant\u00a0Martin Kofman, prose, for Respondent\u00a0DECISIONAND ORDER??????????? On May 10, 1976, Respondent was issued three citationsfor six nonserious and two serious violations. Respondent filed a notice ofintend to contest all charges. On September 29, 1976, the case was heard at NewYork City pursuant to Section 10(c) of the Occupational Safety and Health Act,29 U.S.C. ? 659(c).??????????? Respondent is a New York corporation engaging in themanufacture of paper boxes; many materials and supplies used by Respondent weremanufactured outside the State of New York; hence, Respondent engages in abusiness affecting commerce, within the meaning of Sections 3(3) and 3 (5) ofthe Act. In light of the foregoing, it is found that jurisdiction over theparties and the subject matter is vested in the Commission.??????????? The parties stipulated at trial (Tr. 5?8) that thepenalty proposed for nonserious items 1, 3, and 4 of citation #1 is reducedfrom $40 each to $10 each, the proposal of no penalty for the other threenonserious items remaining in effect; that the abatement date for nonseriousitem 4 is extended to October 30, 1976; that the penalty proposed for seriouscitation #2 is reduced from $550 to $220; and that based on those concessionsof Complainant the notice of contest as to citations #1 and #2 is withdrawn by Respondent.The stipulated agreement is approved.??????????? The only charge remaining in issue is set forth incitation #3 which alleges a serious violation of the safety standard at 29C.F.R. ? 1910.212(a)(3)(ii), in that the point of operation was not guarded oncertain machines. The standard states:? SubpartO?Machinery and Machine Guarding? ? 1910.212 Generalrequirements for all machines.?(a) Machineguarding??(3) Point ofoperation guarding.?(ii) The point ofoperation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shallbe so designed and constructed as to prevent the operator from having any partof his body in the danger zone during the operating cycle.???????????? 29 U.S.C. ? 654(a)(2) requires that each employer complywith occupational safety and health standards promulgated under the Act.??????????? Pursuant to 29 U.S.C. ? 666(b), an employer shall beassessed a civil penalty of up to $1,000 for each serious violation.??????????? Section 666(c) provides that an employer may be assesseda civil penalty of up to $1,000 for each nonserious violation.??????????? 29 U.S.C. ? 666(j) declares that ?a serious violationshall be deemed to exist in a place of employment if there is a substantialprobability that death or serious physical harm could result from a conditionwhich exists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place of employmentunless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.???????????? A Department of Labor compliance officer, who inspectedRespondent?s establishment on April 23, 1976 (Tr. 9), testified that during theinspection she observed certain machines which were not guarded so as toprevent the machine operators from placing their fingers within the point ofoperation during the operating cycle, specifically, eight hand-fed wrappingmachines (Tr. 13?16), one stayer machine (Tr. 17?18), two miter machines (Tr.19?20), two paper cutters (Tr. 21?22), and two die-cutting machines (Tr.27?30). The wrappers had no guards (Tr. 15?16). The stayer and the mitermachines had partial guards, which were inadequate (Tr. 17, 18, 36), in thatthey did not completely enclose the point of operation (Tr. 18, 37?38); thepaper cutters had two-hand tripping devices (Tr. 22) which were so constructedthat it was possible to tie up the left-hand lever and thereby leave theoperator?s left hand free to penetrate the danger zone during the operation(Tr. 23?25, 90); there was a guard available for the die-cutting machines, butthe inspecting officer noted that it was on the floor and not in use, and thatthe operator told her that it was broken (Tr. 29).??????????? The record establishes a violation of the cited standardby Respondent, as charged, and it is so found. I further find that there was asubstantial probability that serious physical harm (amputation of fingers)could have resulted from the violation and that Respondent knew or with theexercise of reasonable diligence could have known of the violative condition.Hence, it is found that the violation was of a serious nature.??????????? Civil penalties can be imposed only after considering thesize of the business of employer, the gravity of the violation, the good faithof the employer, and the history of previous violations. 29 U.S.C. ? 666(i).Respondent usually has between 30 and 40 employees (Tr. 101). There is noevidence of prior safety violations (Tr. 101). Although the employer has noformal safety program (Tr. 77), the safety record is good (Tr. 69). In my viewthe violation is of moderate gravity, but the likelihood of injury is ratherlow. Upon consideration of all the factors listed in 29 U.S.C. ? 666(i), it ismy finding that a penalty of $250 is appropriate.??????????? IT IS ORDERED that the six items in nonserious citation#1, as amended with respect to the abatement date for item 4, and seriouscitations #2 and #3 be affirmed; that the proposed penalty notice, as amended,relative to citations #1 and #2, be affirmed; and that a penalty of $250 beimposed for serious citation #3.?ABRAHAM GOLDJudge, OSHRCDated: February 24, 1977?Boston, Massachusetts[1] In addition, thejudge affirmed a nonserious violation of the Act. None of the parties havetaken exception to that action, and, accordingly, it is not before us onreview.[2] FormerCommissioner Moran also directed that the judge?s decision be reviewed ?todetermine whether the record establishes violations as alleged in the citationand whether the judge properly interpreted and applied 29 U.S.C. ? 666(j).?[3] ? 1920.212 GeneralRequirements for all machines.(a) Machine guarding(3) Point of operation guarding.(ii) The point of operation ofmachines whose operation exposes an employee to injury, shall be guarded. Theguarding device shall be in conformity with any appropriate standards therefor,or, in the absence of applicable specific standards, shall be so designed andconstructed as to prevent the operator from having any part of his body in thedanger zone during the operating cycle.[4] ? 1910.21 GeneralRequirements for all machines.(a) Machine guarding?(1) Types ofguarding. One or more methods of machine guarding shall be provided to protectthe operator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chipsand sparks. Examples of guarding methods are?barrier guards, two-hand trippingdevices, electronic safety devices, etc.[5] Respondentsuggests that its claim of impossibility is given added weight by the historyof no injury on the wrappers. The Commission, however, has held that where, ashere, objective facts demonstrate the existence of a hazard, that finding isnot negated by an employer?s favorable safety record. See A.E. BurgessLeather Co., 77 OSAHRC 25\/D6, 5 BNA OSHC 1096, 1977?78 CCH OSHD ? 21,573(No. 12501, 1977), aff?d, 576 F.2d 948 (1st Cir. 1978).”