“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16188 DAYTON TIRE & RUBBER COMPANY (DIVISION OF THE FIRESTONE TIRE & RUBBER COMPANY), \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September 30, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO andCOTTINE, Commissioners.BY THE COMMISSION:??????????? Thisis a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651?78 (?the Act?). A decision of Administrative Law Judge Louis G. LaVecchiais before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. ?661(i).??????????? Inhis decision, the judge found, among other things, that Respondent, Dayton Tire& Rubber Company, violated the standard published at 29 C.F.R. ?1910.212(a)(3)(ii)[1]and he assessed a penalty of $80 for this other than serious violation.Respondent filed a petition for discretionary review of the judge?s decision,[2] and the petition wasgranted by Chairman Cleary. For the reasons set forth below, Judge LaVecchia?sdecision is affirmed in all respects except for the amount of the penalty forthe section 1910.212(a)(3)(ii) violation. The penalty assessed by the judge forthat violation is vacated. The Commission has determined that not assessing apenalty is appropriate under the circumstances of this case.I??????????? Followingan inspection conducted October 20?28, 1975, at its tire manufacturing plant inDayton, Ohio, Respondent was cited for, among other things, failure to guardthe point of operation of its tire assembly machines (?TAMs?). Approximately240 tire builders operate TAMs at this plant. The tire builders, using TAMs,assemble component materials, including ply stock, chafer belts, beads,[3] and treads, into complete?green tires.? The green tires are then sent to the curing department to becomethe final product.??????????? Theaspect of tire construction at issue in this case is bead setting. The beadsetters are located on the TAMs, one on each side of the main tire buildingdrum, and are of circular metal construction. The function of the bead settersis to forcefully adhere the bead to the shoulders of the tire plies. When abead setter is in the open position, the distance from each setter to the drumis 9 to 24 inches, with the distance varying according to the type of machineused and the type of tire being made. Bead setting occurs after tire plies havebeen applied to the main building drum. The bead setters are actuated when thetire builder depresses a foot pedal, or, on some models, a lever. When thepedal or lever is depressed, the TAM emits a loud hissing sound before the beadsetters travel to the main building drum to adhere the beads. Travel time fromthe rest position to the main building drum varies from 1?? to 2 seconds. It isthe closing of the bead setters to the drum that presents the hazard alleged bythe Secretary in the citation and complaint.II??????????? Inhis decision, Judge LaVecchia determined that Respondent, in failing toadequately guard its TAMs, violated the terms of section 1910.212(a)(3)(ii).The judge found that Respondent?s safety devices and prescribed standardoperating procedures did not constitute compliance with the standard sincethese devices and procedures did not prevent access to the hazard during thecritical time when the bead setters closed on the main building drum. The judgealso found that compliance with the standard could be achieved through the utilizationof floor mats[4]or other safety devices that were within Respondent?s engineering and designcapabilities. Finally, Judge LaVecchia, in concluding that this violation wasother than serious, found that the incoming movement of the bead setters poseda hazard to the operator?s hands and fingers.IIIA??????????? Onreview, Respondent renews a series of arguments it made before Judge LaVecchiaregarding the standard published at 29 C.F.R. ? 1910.212(a)(3)(ii) and theapplication of the standard to its TAM bead setting operations. Respondentpoints out that it does not know of any instance where an employer has beencited by the Occupational Safety and Health Administration (?OSHA?) for failureto guard a TAM or any similar machine. It suggests that this omission is not anoversight, but has occurred because the TAM is a unique piece of equipment fardifferent in mechanical function from the types of machines requiring point ofoperation guarding that are listed in 29 C.F.R. ? 1910.212(a)(3)(iv).[5]??????????? Respondent?scontention that section 1910.212(a)(3)(ii) does not apply to its TAM beadsetting operation is not supported either by the language of the standard or bythe pattern of administrative enforcement under the Act. As Judge LaVecchiaconcluded in his decision, the language of section 1910.212(a)(3)(ii) is broad,encompassing by its terms all machines, regardless of complexity, in whichthere is a point of operation exposing employees to potential injury. Theoverall heading of section 1910.212 is ?General requirements for all machines.?Likewise, section 1910.212(a)(3)(ii) is applicable according to its terms toall types of industrial machinery. Other than an exemption from the generalpoint of operation guarding requirements for machines covered by more specificstandards, there is nothing in the wording of section 1910.212(a)(3)(ii) tolimit the application of the requirements of the standard or to suggest that inany way certain types of machines are exempt. Further, 29 C.F.R. ?1910.5(c)(2), which discusses the applicability of occupational safety andhealth standards, provides that a standard ?shall apply according to its termsto any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, . . . to the extentthat none of such particular standards applies.? Respondent does not assertthat a more specific standard applies to the facts here. Finally, there havebeen no cases decided by the Commission that in the absence of a specificexemption have limited the applicability of section 1910.212(a)(3)(ii) tocertain classes of machinery.??????????? Thefact that TAMs are not listed as examples of machines requiring point ofoperation guarding under section 1910.212(a)(3)(iv) also does not require theCommission to conclude that TAMs are not covered by the standard. Respondent isessentially arguing that the Commission should apply the doctrine of ejusdemgeneris in construing the meaning of section 1910.212(a)(3)(ii). That is, whenspecific words (as in section 1910.212(a)(3)(iv)) follow more general words (asin section 1910.212(a)(3)(ii)), the application of the general term should berestricted to things that are similar to those specifically enumerated. See 2A SutherlandStatutory Construction ? 47.17 (4th ed. 1973). However, this doctrinecannot be applied to exclude TAMs from coverage under the standard for tworeasons.??????????? First,the list in section 1910.212(a)(3)(iv) is prefaced by the words, ?The followingare some of the machines which usually require point of operation guarding.?The use of the pronoun ?some? indicates that the list is not exhaustive of allmachines covered by the standard. Since the wording of the standard clearlyindicates that the list in section 1910.212(a)(3)(iv) is for illustrativepurposes rather than to limit the scope of the standard, the doctrine ofejusdem generis should not be applied. Id. at ? 47.20; Grosjean v.American Paint Works, 160 So. 449 (La. App. 1935).??????????? Second,the machines enumerated are essentially diverse in character without featurescommon to all from which to infer an intent to restrict the coverage of thestandard to any particular class of machines. The listed machines very in sizefrom milling machines to portable power tools. The functions of the listedmachines also vary. Some of the listed machines cut material (e.g., guillotinecutters, shears, power saws), others puncture holes in material (powerpresses), one is used to make joints, and others are used to form material(forming rolls and calenders). Since the individual characteristics of thelisted machines do not differ substantially from the characteristics of TAMs,we find nothing in section 1910.212(a)(3)(iv) to suggest that the standard doesnot cover TAMs.B??????????? Respondentfurther asserts that TAMs are not covered by the cited standard because thestandard is applicable only when the operator manually positions or feedsmaterial prior to the machine?s operation or when the operator is required toperform work on the material during the machine?s operation. Respondent pointsout that for other machine guarding standards the term ?point of operation? isdefined in several places. Respondent in particular cites to the definitionalsections for standards 29 C.F.R. ? 1910.213?14 (woodworking and cooperagemachinery), 29 C.F.R. ? 1910.217 (mechanical power presses), and 29 C.F.R. ?1910.219 (mechanical power transmission apparatus). From these definitions,Respondent argues that section 1910.212(a)(3)(ii) is intended to apply onlywhen two factors are present: (1) work is being performed by the machine on thestock, and (2) the machine operator is exposed to the area of the machine wherework is actually performed upon the material. Since no manual work is performedon the TAM while the bead is actually set, Respondent argues that there is nopoint of operation hazard. Respondent cites language in the lead opinion in JerseySteel Drum Manufacturing Corp., 75 OSAHRC 36\/E9, 2 BNA OSHC 1663, 1974?75CCH OSHD ? 19, 392 (No. 1119, 1975), which states that there is no point ofoperation hazard when employees are not needed to control the work.??????????? Respondent?sargument that TAMs do not have a point of operation within the meaning of thestandard since the machine automatically sets the bead once the bead-settingcycle is begun is an erroneous interpretation of the standard.[6] Respondent?s reliance uponthe definition of point of operation in other machine guarding standards ismisplaced because ?point of operation? as used in section 1910.212(a)(3)(ii) isspecifically defined in section 1910.212(a)(3)(i). This subsection defines?point of operation? as ?the area on a machine where work is actually performedupon the material being processed.? There is no reference in this definition toeither the location of the machine operator, whether the operator is performingwork on the material, or how the material is positioned on the machine. Withoutany such reference, the most logical construction of the standard is that?point of operation? refers to the location on the machine where the machineperforms work upon the material, not to where the operator is performing work.See Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105\/B4, 6 BNAOSHC 2169, 1979 CCH OSHD ? 23,219 (No. 76?2419, 1978) (different definitionalsection). This construction of the standard also follows from the fact thatthat standard is plainly designed to reduce or eliminate the hazards such aspinching, squeezing, or cutting that are created by unguarded machine partswherever such parts are located. This definition, therefore, applies to anymachine which performs work on material, regardless of how that material is fedinto the machine or positioned.??????????? Since?point of operation? is defined in section 1910.212(a)(3)(i), there is no needto consider definitions of ?point of operation? in other standards. Thedefinitions applicable to other sections vary considerably; each definition isspecifically tailored to the type of machinery covered by that section. Thus,there is no authority in other standards to support Respondent?s interpretationof the definition of ?point of operation? for the cited standard. See BoonvilleDivision of Ethan Allen, Inc., Supra.??????????? Althoughformer Commissioner Moran, in the lead opinion in Jersey Steel DrumManufacturing Corp., supra, concluded that the machine in that case?contained no point of operation [as defined in section 1910.212(a)(3)(i)]since it was operated automatically,? this narrow definition of ?point ofoperation? was specifically rejected in the opinions of Chairman Cleary andformer Commissioner Van Namee. A majority of the Commission held that a pointof operation existed even where the material is automatically positioned.Additionally, this view of point of operation is reflected in B. C. CrockerCedar Products, 76 OSAHRC 132\/B6, 4 BNA OSHC 1775, 1976?77 CCH OSHD ? 21,179 (No. 4387, 1976), where the Commission found a violation had occurred eventhough the machine operator in that case did not put his hand near the point ofoperation when the machine was operated properly. See also Pass &Seymour, Inc., 79 OSAHRC 101\/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ?24,074(No. 76?4520, 1979), appeal dismissed, No. 80?4013 (2d Cir. March 19,1980). In the present case, the bead setter actually performs work on thematerial (the tire plies) while it closes against the tire building drum.Therefore, a ?point of operation,? as defined in the standard, exists under thefacts of this case.C??????????? Respondentalso argues that application of section 1910.212(a)(3)(ii) to its TAMs violatesdue process. The Review Commission held in Diebold, Inc., 76 OSAHRC3\/E5, 3 BNA OSHC 1897, 1975?76 CCH OSHD ?20,333 (No. 6767, 1976), rev?d, 585F.2d 1327 (6th Cir. 1978) (?Diebold?), that this standard was notimpermissibly vague. Although the Sixth Circuit, on appeal in Diebold,held that the application of section 1910.212 to Diebold?s press brake machinesviolated due process, the court did not hold the standard invalid for all typesof machinery. Rather, the court in Diebold concluded that, although theguarding requirement of section 1910.212 is stated quite generally, ?thegenerality is a necessary by-product of the broad scope of the subject matterand the nearly infinite variety of machines which might pose hazards of thesort within the rule?s coverage.? 585 F.2d at 1336.??????????? Infinding section 1910.212 to be overly vague as applied to the press brakes inthat case, the court pointed to three factors. They were: (1) the inartfuldrafting of section 1910.217, the power press guarding standard, whichreasonably led some employers to believe that press brakes were not covered bysection 1910.212; (2) undisputed ?common understanding and commercial practice?relative to press brake guarding; and (3) a pattern of administrativeenforcement in which a majority of the Commission?s administrative law judgesheld section 1910.212 inapplicable to press brakes. The court noted that noneof these factors by itself was enough to invalidate enforcement of thestandard, but that their cumulative effect deprived Diebold of sufficientnotice of the standard?s requirements. The court also held that section1910.212 could be prospectively applied to press brakes since the Commission?sdecision in Irvington Moore, Div. of U.S. Natural Resources, Inc., 75OSAHRC 45\/A2, 3 BNA OSHC 1018, 1974?75 CCH OSHD ? 19, 523 (No. 3116, 1975),aff?d, 556 F.2d 431 (9th Cir. 1977) (?Irvington Moore?) give employerssufficient notice that press brakes were covered by the standard.??????????? Wefind that an application of the three factors relied on by the court in Dieboldto the facts of the present case yields the opposite result. First, unlike Diebold,the applicability of section 1910.217, the power press guarding standard, isnot at issue here. Indeed, there is no contention by Respondent that anotherstandard applies to TAMs. The second factor relied on in Diebold,industry practice regarding machine guarding, should be given less weight herethan in Diebold. At issue in Diebold was a pervasive machineguarding practice covering several industries and involving a variety ofemployers. Respondent in this case raises the issue of a machine guardingpractice with respect to one highly specialized industry (tire building). Thefact that employers in one industry did not provide the requisite machineguarding does not necessarily mean that the wording of the standard ismisleading, since there may be other reasons why machines ware not guarded bythese employers besides misinterpretation of the standard. Further, the failureof industry to use guarding for press brakes in Diebold can be viewed asa direct consequence of the confusion by employers engendered both by theinartful drafting of section 1910.217 and the inconsistent adjudication forpress brake guarding under the Act. In the present case, any industry failureto guard TAMs cannot be linked to such extenuating factors.??????????? Inregard to the third factor relied upon in Diebold, the pattern ofadministrative enforcement under the Act, it is clear that prior Commissioncases gave Respondent notice of the broad application of general machineguarding requirements. Respondent in the present case argues that it adequatelyguarded its machines since employees following the company?s prescribedprocedures would not be exposed to the hazard associated with the TAMs duringbead setting. However, in Irvington Moore, supra, the Commission rejected asimilar argument. Also, while several administrative law judges held that pressbrakes were not covered by section 1910.212 before the Commission ruleddefinitively on the issue, there are no ALJ decisions holding that TAMs orother similar machinery are exempt from the standard. Finally, as discussedpreviously, the language of section 1910.212(a)(3)(ii) itself is not ambiguous.Rather, the plain wording of the standard indicates that the standard isapplicable to ?all machines? unless there is a specific exemption from guardingrequirements in another standard. Thus, there is nothing in the administrativeenforcement history of the Act to suggest that TAMs are not covered by thestandard; rather, a reading of prior Commission cases supports the applicationof the standard to Respondent?s machines.??????????? Asthe above analysis reveals, at most one of the three factors cited by theDiebold court is present in this case. Further, that one factor?industryexperience?is not compelling in this case. Therefore, we conclude that applicationof section 1910.212(a)(3)(ii) to Respondent?s TAMs does not offend due processunder the criteria established in Diebold.[7]D??????????? Respondentnext contends that section 1910.212(a)(3)(ii) is void for being improperlypromulgated. The Commission rejects this argument for the reasons stated bothby the Commission and by the Sixth Circuit in the Diebold case.[8]??????????? Ina related argument, Respondent contends that section 1910.212(a)(3)(ii) shouldnot be applied to its TAMs for public policy reasons. It asserts that since theAmerican National Standards Institute (ANSI) is now developing a comprehensivemachine guarding standard for TAMs, the Review Commission should stayenforcement in this case. We reject this argument. As we noted in our Diebolddecision, it is the function of the Commission to determine whether violationsof the Secretary?s standards, and not those of a private organization, haveoccurred. Therefore, the development of a proposed ANSI standard for TAMs isirrelevant to deciding this case. Cf. U.S. Steel Corp., 77 OSAHRC 12\/C3,2 BNA OSHC 1343, 1974?75 CCH OSHD ?19,047 (Nos. 2975 & 4349, 1974)(Secretary?s published response denying petitions to modify standard). Finally,the Commission lacks the authority to question the Secretary?s determinationthat the requirements of a standard are reasonably necessary or appropriate toeliminate or reduce workplace hazards. See, e. g., Austin Bridge Co., 79OSAHRC 81\/A2, 7 BNA OSHC 1763, 1979 CCH OSHD ?23, 935 (No. 76?93, 1979).E??????????? Respondentalso argues that if section 1910.212(a)(3)(ii) does apply to bead setting,Respondent has complied with the standard. Pointing to Judge LaVecchia?sfinding that Respondent?s standard operating procedures call for the tirebuilder to turn away from the machine and use both hands to separate the beadson the bead pin, Respondent contends that it need not provide additionalprotection to comply with the standard since the employee is not exposed to apoint of operation hazard. Respondent also argues that, in addition to itsstandard operating procedures, the stop pedals, ropes, control buttons, as wellas its use of electronic interlocks on the various automatic operations of theTAMs, assure that the operator is protected from the closing action of the beadsetters.??????????? Accordingto the cited standard, a proper guard must be of such design and constructionas to ?prevent the operator from having any part of his body in the danger zoneduring the operating cycle.? Nothing in the standard suggests that employeesmay be left with only partial protection from machine hazards; rather, toachieve compliance with the standard, mechanical devices must physicallyprevent the operator?s hand from coming into the point of operation orphysically prevent exposure to injury. Hughes Brothers, Inc., supra.Respondent?s installation of stop buttons, pedals and ropes on its TAMs lessensthe likelihood of injury, and this is relevant in considering the gravity ofthe violation. Nevertheless, despite the installation of these devices, theoperator is not prevented from placing his hands in the danger zone during thebead set. Therefore, installation of these devices does not representcompliance with the standard. Likewise, while Respondent?s electronicinterlocks on its TAMs prevent the operator from being exposed to point ofoperation hazards during some operations in the tire building process, they donot physically prevent exposure of the employee to the hazard during thecritical bead set. The interlock at most only provides partial protectionagainst the hazard posed by the bead set. Such partial protection is clearlyinadequate when it is feasible for the employer to install mechanical devicesthat will prevent the operator from being exposed to injury. HughesBrothers, Inc., supra.??????????? Respondent?sreliance upon its standard operating procedures, which require the operator towork away from the machinery when the bead setters close, also does notconstitute compliance with the standard. The Commission has consistently heldthat the cited standard requires physical methods of guarding rather thanmethods of guarding that depend on human behavior. Pass and Seymour, Inc.,supra; Boonville Division of Ethan Allen, Inc., supra; MRS Printing,Inc., 78 OSAHRC 84\/B10, 6 BNA OSHC 2025, 1978 CCH OSHD ?23,102 (No.76?3113, 1978); Hughes Brothers Inc., supra; Akron Brick and Block Co.,76 OSAHRC 2\/E2, 3 BNA OSHC 1876, 1976?77 CCH OSHD ? 20,302 (No. 4859, 1976). Asthe judge here observed, there is nothing to prevent Respondent?s employeesfrom deviating from the standard operating procedures and placing their handsor fingers within the zone of danger. Indeed, Judge LaVecchia found that, inspite of Respondent?s standard operating procedures, operators have appliedhands and fingers to the edges of tires immediately prior to the bead settingoperation and that this has resulted in finger injuries. Therefore,Respondent?s use of standard operating procedures does not provide adequateprotection.F??????????? Respondentalso argues that TAMs do not pose a hazard to machine operators, pointing outthat during the 1966?76 period there were only five reported accidents on TAMsin over 5 million man hours and that there have been no accidents since 1973.Respondent indicates that three of these injuries occurred when the tirebuilder tried manually to adjust a ply ring or bead ring that stuck on the tirestock after the bead setter had moved into the main building drum, and that afourth injury involved an electrical sequence hazard that has since beeneliminated. It argues that these accidents were caused by factors distinct fromthe inward movement of the bead setters that is at issue in this case.??????????? TheCommission rejects Respondent?s contention that the bead setting operation ofthe TAMs presents no hazard for the machine operators. The low number ofrecorded injuries has probative value regarding the existence of a hazard, butdoes not rebut the objective evidence of exposure to a hazard. KroehlerManufacturing Co., 78 OSAHRC 88\/B9, 6 BNA OSHC 2045, 1978 CCH OSHD ? 23,110(No. 76?2120, 1978); A. E. Burgess Leather Co., 77 OSAHRC 25\/D6, 5 BNAOSHC 1096, 1977?78 CCH OSHD ? 21,573 (No. 12501, 1977), aff?d, 576 F.2d948 (1st Cir. 1978). The incoming movement of the bead setters has resulted inseveral finger injuries, including lacerations, a fracture, and amputations intwo instances. The fact that some reported injuries to TAM operators occurredwhen the bead setters malfunctioned does not negate either the existence of ahazard or the type of resultant injuries. The evidence of the record also doesnot show that these accidents would not have occurred if the machines had beenproperly guarded. Accordingly, we conclude that the Secretary has establishedby a preponderance of the evidence that the operation of Respondent?s TAMsexposed its employees to a point of operation hazard. See Amforge Division,Rockwell International, 80 OSAHRC ___, 8 BNA OSHC 1405, 1980 CCH OSHD ? 24,439 (No. 76?3488, 1980).[9]IV??????????? Finally,Respondent contends that, because there is no safety device lacking from itsTAMs that has been generally accepted as sound safety practice in Respondent?sindustry, it has complied with the standard. However, as discussed at note 8supra, section 1910.212(a)(3)(ii) clearly affords notice of the performance itrequires and, hence, there is no need to resort to criteria such as industrycustom and practice in order to determine the extent of Respondent?s duty underthe cited standard. Instead, an employer must comply with the terms of thisstandard unless it can prove as an affirmative defense that compliance with thestandard is impossible. Amforge Division, Rockwell International, supra.??????????? Inorder to establish a defense of impossibility as to either compliance orperformance, an employer must prove that (1) compliance with the requirementsof the cited standard either would be functionally impossible or would precludeperformance of required work, and (2) alternative means of employee protectionare unavailable. M. J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC1140, 1979 CCH OSHD ? 23,330 (No. 15094, 1979). Respondent in the present casehas not established that guarding of its TAMs is impossible. As discussedpreviously, Respondent has already installed one of the suggested means ofcompliance, i.e., floor mats, on some of its TAMs.[10] Respondent?s argumentthat use of floor mats on the cited TAMs may be unreliable is speculative onthe record here and hence is rejected. Further, Respondent?s witnesses did notrespond to the compliance officer?s testimony that TAM operators could beprotected by barrier guards, consisting of either a physical guard, a lightbeam curtain, a two-handed trip system, or a control panel located at such adistance that the operator is not exposed to the closing of the bead setter.Therefore, the Commission agrees with Judge LaVecchia that Respondent canachieve compliance with the standard by use of floor mats or other safetydevices that are within Respondent?s engineering and design capabilities.Hence, the Commission rejects Respondent?s argument that it need not installsuch devices.[11]Therefore,we affirm the judge?s conclusion that Respondent failed to comply with thestandard at 29 C.F.R. ? 1910.212(a)(3)(ii) with respect to the bead settingoperation on its TAMs.V??????????? ChairmanCleary and Commissioner Barnako conclude that Respondent has violated the Act,but, in accordance with the criteria under section 17(j) of the Act, havedetermined that no penalty should be assessed in this case.[12] As the Sixth Circuit?sdecision in Diebold suggests, effective enforcement under the Act may insome instances, be accomplished most effectively by applying health and safetystandards without assessing a penalty. Chairman Cleary and Commissioner Barnakofind that an application of the criteria for assessing penalties in section17(j) of the Act to the facts of this case yields a result consistent with thelanguage in Diebold, supra at 1338?39. Respondent in this case has demonstratedgood faith by employing some safety protection on its TAMs in the form of stoppedals, buttons and ropes, electronic interlocks, and by developing itsstandard operating procedures with the intent to maximize safety. Also, the lowrate of accidents (only five reported accidents on TAMs in over 5 million manhours) is indicative that the gravity of the violation is low.??????????? Accordingly,it is ORDERED that the judge?s decision finding a violation of the Act forfailure to comply with the standard at 29 C.F.R. ? 1910.212(a)(3)(ii) beaffirmed, but that no penalty be assessed.?FORTHE COMMISSION:?RAYH. DARLING, JR.EXECUTIVESECRETARYDATED:SEP 30, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16188 DAYTON TIRE & RUBBER COMPANY (DIVISION OF THE FIRESTONE TIRE & RUBBER COMPANY), \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 18, 1977APPEARANCES:Gregory B. Taylor,Esq., of Cleveland, Ohio for the Complainant.\u00a0Thorley C. Mills,Jr., Esq., of Akron, Ohio for the Respondent.\u00a0Carolyn Bell(Non-Attorney), for the United Rubber Workers International Union.?DECISIONAND ORDERLaVecchia, Judge??????????? This proceeding arises under Section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.), hereafterreferred to as ?the Act.???????????? An inspection conducted October 20 through 28, 1975 atthe respondent?s tire manufacturing plant in Dayton, Ohio resulted in theissuance of four citations on November 13, 1975 alleging violations of numerousoccupational safety and health standards, all in violation of Section 5(a)(2)of the Act. The respondent filed a notice of contest to several of the itemsalleged. At the outset of the hearing, held August 9 10, 1976 at Dayton, theparties entered into a stipulation which amicably resolved certain of thecontested items.[13]The remaining contested items are set forth hereinafter. Post-hearing briefswere filed by the principal parties and the intervening labor union, which alsowas given party status.??????????? The respondent conceded in its answer to the complaint,and by stipulation at the outset of the hearing, that it was engaged in a businessaffecting commerce within the meaning of Section 3(5) of the Act. (Par. I,Complaint and Answer). (Tr. 7).I??????????? Item 15 of Citation No. 1 alleges a violation of thestandards found at 29 C.F.R. 1910.308 and 309(a) because ?A skil 1\/4? portabledrill in the carpenter shop had only a two prong connecting plug.???????????? Article 250 45 of the National Electrical Code, adoptedby the cited standards, reads, in pertinent part, as follows:EquipmentConnected by Cord and Plug. Under any of the following conditions, exposednon-current-carrying metal parts of cord- and plug-connected equipment, whichare liable to become energized, shall be grounded:(a) In hazardouslocations (see Articles 500 through 517);?(b) When operatedat more than 150 volts to ground, * * *???????????? The portable drill was found resting in a cabinet in thecarpenter?s shop. (Tr. 12). It had not been tagged out of service. It was a 110115 volt, AC type, capable of grounding through the use of a ?pig-tail?attachment. (Tr. 13, 43, 196). The respondent contends that subsection (b) ofthe NEC article quoted above rules out any violation because of the lowervoltage of the drill in issue. I must agree, since subsection (a) is notapplicable, dealing as it does with hazardous locations, and the plain languageof subsection (b) supports the respondent?s theory. This item will be vacated.II??????????? Item 20 of Citation No. 1 alleges a violation of thestandard found at 29 C.F.R. 1910.22(a)(2) for failure to keep the aislesbetween certain tire presses free of water and oil.??????????? This standard reads, in pertinent part, as follows:(2) The floor orevery workroom shall be maintained in a clean and, so far as possible, a drycondition. * * *\u00a0??????????? The existence of the condition at the time of theinspections is not denied by the respondent. (Tr. 14, 15). (Ex. C 1). Employeeshad fallen and hurt themselves on occasion. (Tr. 81). The respondent hadordered floor mats for placing over the affected areas, and some were in placeat the time of the inspections. Others had not yet been received from themanufacturer. Prior to the inspections the respondent had attempted to solvethe problem by sawing grooves and constructing dikes on the floor. Neithereffort had provided a solution. The belts (floor matting) were then ordered.Also antedating the inspections, the respondent had established a monthlysafety inspection by qualified maintenance personnel, and daily inspections forpress leaks. Leaks may appear at any time, and are inevitable in the presenceof press machinery utilizing thousands of valves. (Tr. 196 197). The respondentcertainly appears to have made good faith attempts to remedy the condition forwhich it was cited, but due to circumstances beyond its control, success haseluded it. Its efforts fall within the purview of the ?so far as possible?phrase of the standard, in my opinion. Accordingly, this item must be vacated.III??????????? Subsections 2, 8, 9, and 10 of Item 23, Citation No. 1,allege violations of the standard at 29 C.F.R. 1910.219(e)(1)(i) for failure toprovide adequate guarding for horizontal belts operating 7 feet or less abovefloor levels.??????????? The standard provides, in pertinent part, as follows:Where both runs ofhorizontal belts are seven (7) feet or less from the floor level, the guardshall extend to at least fifteen (15) inches above the belt or to a standardheight (see Table 0 12), except that where both runs of a horizontal belt are42 inches or less from the floor, the belt shall be fully enclosed * * *???????????? Two of the belts were located in the powerhouse, arestricted area, limited to entry by licensed powerhouse engineers. (Tr. 16,51). Generally, not more than two or three engineers can be found within thepowerhouse on any particular shift. (Tr. 201). The belts are horizontal types,operating within 7 feet of the floor, and are guarded on three sides. (Tr. 16,17). The exposed side of the compressor is not accessible to employees passingthrough the area. To attain the unguarded area an individual would have tointentionally reach beyond the guard. (Tr. 200). When maintenance is performedon the machinery, the unit is shut down and tagged to indicate that suchprocedures are under way. (Tr. 200, 201). The third belt in issue is on thepump motor drive in the cement house. It is completely guarded except for a2-inch opening at the bottom. The opening is not in an aisle or employee workarea. (Tr. 198).??????????? The respondent argues that remote possibilities, orexposure only by deliberate act, are not enough to establish a violation. Iquite agree. In the circumstances presented it does appear that an intentionalexposure would be necessary in order to sustain an injury. Therefore, there isno violation of the safety standard.IV??????????? Item 35 of Citation No. 1 alleges a violation of thestandard set forth at 29 C.F.R. 1910.145(c)(3) for failure to post a safetyinstruction sign at the site where a bale cutter was used.??????????? The cited standard provides, in pertinent part:Safety instructionsigns. Safety instruction signs shall be used where there is a need for generalinstructions and suggestions relative to safety measures.???????????? There is an instruction notice posted on a buildingsupport in the area where the bale cutter operator normally works. However, theblade cutting area is approximately 15 20 feet from the operator?s normal workarea. (Tr. 212). Precautions to be observed in the performance of cutting andunjamming operations are included in the instructions. (Ex. R 17). Therespondent contends (1) that the standard is unenforceably vague, citing PolycelCorp. 3 OSHC 1698 (1975), and (2) that on the merits, there is no violation.In Polycel, Judge O?Connell suggested, but did not find, that thestandard was infirm for vagueness. The issue was decided on the merits in favorof the respondent in that case. The Commission affirmed the decision on review.I do not find it necessary to decide the issue of vagueness on the facts herepresented. The posting of the instructions in the area where the bale cutteroperator spent most of his time was sufficient, in my view, to satisfy therequirements of the standard. This item will be vacated.V??????????? Item 41 of Citation No. 1 alleges that the respondentviolated standards 29 C.F.R. 1910.308 and 309(c) by failing to provide guardsagainst breakage of two floodlights and eight sunlamps.?Article 110 17 ofthe National Electrical Code, adopted into the cited standards, provides, aspertinent, the following:? Guarding of LiveParts. (Not More Than 600 Volts)?(a) Except aselsewhere required or permitted by this Code, live parts of electricalequipment operating at 50 volts or more shall be guarded against accidentalcontact by approved cabinets or other forms of approved enclosures, or any ofthe following means:?(1) By location ina room, vault, or similar enclosure which is accessible only to qualifiedpersons.?(4) By elevationat least 8 feet above the floor or other working surface.?(b) In locationswhere electrical equipment would be exposed to physical damage, enclosures orguards shall be so arranged and of such strength as to prevent such damage.????????????? The two floodlamps were located at the rear of a calender(a rubber and stock mating machine), about 4 feet higher than the workingsurface of the equipment. (Tr. 33 35) (Ex. C 22). The operator?s workingstation is at the front of the machine. No materials are fed into the machine ator near the floodlamps. The lamps provide illumination for the operator when heperiodically steps to the side and toward the rear of the machine for thepurpose of observing the internal processes for correct operation. It was notnecessary for the operator to place himself in close proximity to thefloodlamps during his inspections. (Tr. 203 205).??????????? Since it is not show that the operator, or any otheremployee, is required to approach closely the floodlamps at the rear of themachine, it is difficult to envision accidental employee contact with thelamps. Moreover, inasmuch as no materials are fed into the machine at or nearthe location of the floodlamps there appears to be little or no chance of theiraccidental breakage by contract with rubber or stock components. I can onlyconclude that there was no violation of the standards in the non-guarding ofthe two floodlamps at the rear of the calender.??????????? Eight unguarded sunlamps, utilized in a test of whitewalltire ability to withstand sunlight without discoloration, were found in aquality control laboratory. They were suspended about 18 inches above a tableon which whitewall tires were placed for exposure to the simulated sunlightproduced by the lamps. (Tr. 32) (Ex. C 21). The laboratory is a restricted area,and normally only one laboratory employee enters the room at any one time. Thetest requirements meet exact specifications of floodlight exposure andcross-ventilation provided by fans. No production processes take place there.(Tr. 202 203). The tires are left in place for 12 to 24 hours before beingremoved. The installation of guards around the floodlamp bulbs would interferewith the cross-ventilation testing by obstructing the desired type of air flow.(Tr. 203).??????????? The compliance officer felt that the unguarded lampspresented a hazard because of possible breakage of the bulbs during the processof placing or removing tires from the platform on which they rest during thetesting. Exhibit C 21 discloses that the tires are laid flat on a rectangular platform,with their whitewall sides exposed to the sunlamps suspended at least 18 inchesabove the working surface. The tires are laid two-wide down the length of theplatform. Since this is not a production process, and the tires remain on theplatform anywhere from 12 to 24 hours, there is not much activity with respectto movement of the tires. Moreover, the restriction of the area to laboratorypersonnel lessens the possibility of an accident. I cannot find a violation ofthe standards in these circumstances. It also appears that the respondent hasestablished the infeasibility of guarding the floodlamps, because thestructures surrounding them would interfere with the simulated air currents,negating the validity of the test results. I conclude that there was noviolation of the standards in the sunlamp operation.VI??????????? Citation No. 3 consists of one item charging therespondent with a ?repeated? non-serious violation of the safety standard setforth at 29 C.F.R. 1910.242(b). This is founded on an alleged failure toprovide for cleaning purposes, compressed air pressures of less than 30 p.s.i.,along with effective chip guarding and personal protective equipment. Thisstandard provides, in pertinent part:Hand and portablepowered tools and equipment, general.?(b) Compressed airused for cleaning. Compressed air shall not be used for cleaning purposesexcept where reduced to less than 30 p.s.i. and then only with effective chipguarding and personal protective equipment.???????????? The compliance officer testified that two of thecompressed air nozzles in use of the truck tire curing line in building 44 weremeasured at the time of the inspection and found to be operating at 80 p.s.i.They were being used to clean curing molds. (Tr. 35, 36). The respondent hadattempted to utilize air lines registering 30 p.s.i. in the mold-cleaningoperation, but additional pressure was found to be necessary. The removal offoreign matter and flake residue from the tire molds is critical to the constructionof a quality tire. (Tr. 205, 206). (Exs. C 17, 18).??????????? Although the respondent challenges the validity of thestandard because of alleged improper promulgation, the main thrust of itsargument is directed to the feasibility of performing the essential cleaningoperation at 30 p.s.i. It cites Bruckman Rubber Co. 3 OSHC 1429 (1975)in support of its position. In that case Judge Carlson, in a well-reasonedopinion, decided that the use of compressed air at pressure in excess of 30p.s.i. to remove ?flash? from rubber molds was an integral part of themanufacturing process, and not a ?cleaning? operation within the ambit of 29C.F.R. 1910.242(b). The standard was held inapplicable, and the Commissionlater upheld the Judge?s ruling.??????????? The cited case being essentially on all fours with thesituation presented here, this item will also be vacated.VII??????????? Item 40 of Citation No. 1 alleges a violation of thesafety standard set forth at 29 C.F.R. 1910.212(a)(3)(ii) for:Failure to guardthe point of operation of machines whose operation exposes an employee toinjury. The guard shall conform with appropriate standards, or be constructedso as to prevent the operator from having any part of his body in the dangerzone during operating cycle. e.g. There were no point of operation guards ordevices used on the following models of tire building machines throughout thetire building areas of the plant which would protect the operator when hishands were in the point of operation between the beadsetters and the main tirebuilding drum, or when he tripped or committed the machine to its beadsetterscycling and closing on the main drum while he stood only inches in front ofthat closing. This hazard was noted on both the truck and passenger buildingtire machines, models: [Models 59 5 (sic), 75, 80, 88 D, 35, 45, 60, and 68].Note: Beadsetters size varied depending on model of tire building machine from20? to 14? round as did the gap between the beadsetters and the main tirebuilding drum as this horizontal closing was from 8? to 12? on most machines.???????????? The cited standard provides:Generalrequirements for all machines.?(a) Machineguarding?(1) Types of guarding. One or more methods of machine guarding shallbe provided to protect the operator and other employees in the machine areafrom hazards such as those created by point of operation, ingoing nip points,rotating parts, flying chips and sparks. Examples of guarding methodsare?barrier guards, two-hand tripping devices, electronic safety devices, etc.?*6 (2) General requirementsfor machine guards. Guards shall be affixed to the machine where possible andsecured elsewhere if for any reason attachment to the machine is not possible.The guard shall be such that it does not offer an accident hazard in itself.?(3) Point ofoperation guarding. (i) Point of operation is the area on a machine where workis actually performed upon the material being processed.?(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.?(iv) The followingare some of the machines which usually require point of operation guarding:[Guillotinecutters; shears; alligator shears; power presses; milling machines; power saws;jointers; portable power tools; forming rolls and calenders]???????????? The Operation of the Tire Assembly Machines??????????? Approximately 240 tire ?builders? operate tire assemblymachines (TAMs), producing over 200 different types of passenger vehicle andtruck tires. (Tr. 143). About 15,000 passenger and 1,000 truck tires aremanufactured daily. This has been the average volume produced over the past 10years. (Tr. 175 176).??????????? Tire builders, utilizing TAMs, assemble components,including ply stock, chafer belts, beads, and treads into complete ?greentires.? (Tr. 173). The green tires are then sent to the curing department forshaping into the final product. At each TAM the builder?s packet includes thetire specifications, an Elemental Sequence (Exs. R7 10), and applicable SafeOperating Procedures (SOPs). (Tr. 174).??????????? Tire construction on the TAMs is similar for all types oftires. The builder applies several plies to the main building drum. He then?sets the bead? by automatic operation of the bead setters. Then he turns theply stock up over the bead to secure it to the tire shoulder. Additional pliesas necessary, chafer, and other components are added to the tire while it is onthe building drum. Tread is then applied, and a tread stitching operation isperformed. After complete assembly of all components, the drum is collapsed andthe green tire is removed and placed on the conveyor for transit to the curingdepartment. (TR. 114, 115).??????????? New tire builders are subjected to an extensive 8 12 weektraining program which, in addition to stressing the mechanics of tire building,places considerable emphasis on safety factors. (Tr. 177 185). Departmentalsafety meetings are held for all builders on at least a monthly basis. In thesemeetings supervisors review both on and off-the-job safety matters. (Tr. 186,187).??????????? Respondent utilizes passenger TAM models 45, 60, 80, and88D in its Dayton plant. Truck TAM models 59J, 75, and 401 are used. (Tr. 114).Tire building on all machines with the exception of the ?earlier generation?model 45, is much the same. In addition, the mechanical and operationalfunctions on all passenger models except the 45S are substantially similar.(Tr. 133). More model 60 passenger TAMs are utilized than any other single typeof machine. The model 80 is identical to the model 60 in mechanical function andbuilder operation, except that it features a belt ply-down whereas the model 60utilizes finger ply-downs. The 80 machine is fairly representative of thepassenger TAMs at the plant. (Tr. 125, 138). The 59J and 75 truck tire machinesare substantially similar in mechanics and operation. (Tr. 122, 143).??????????? The TAMs are powered by 440 voltage electricity. (Tr.115). Almost all tire building is done in automatic mode?that is, certainmachine cycles occur automatically after builder actuation rather than by manualoperation. (Tr. 123, 149). The model 59J and 80 machines are controlled throughthe operation of foot pedals and console buttons. The foot pedals are directlyin front of the main building drum. Six are utilized, of which five are guardedagainst inadvertent depression. The sixth, a stop pedal, is not guarded, sothat it can be actuated immediately in an emergency. (Tr. 117, 118). Thispedal, when depressed, removes all power from the unit. If the bead settersshould be moving in when the stop pedal is depressed, they would immediately goback to the rest position, with less than a 1\/4? forward drift. (Tr. 117, 118;124, 125) (Exs.Rl & 3). Both the 59J and 80 machines employ automaticcycles in a programmed electronic sequence. The automatic foot pedal actuatesall automatic cycles on the TAMs. (Tr. 118).??????????? The electrical system employed by the machines varies,but the results are substantially similar. (Tr. 118, 127). Depression of theautomatic foot pedal at a given time in the building sequence brings only thefirst element of the automatic cycle programmed for the particular type of tireunder construction. (Tr. 119, 127, 153, 157, 159, 161). For example, on the 59Jmodel, the sequence for a single bead tube type truck tire commonly built atthe considered plant, involves a number of sequential elements within automaticcycles. After the fourth ply is spliced, depression of the automatic foot pedalwould activate a spring stitch ply-down before the bead-set because the springstitch is next in sequence. (Tr. 148) (Ex. R 7, P.2).??????????? Another electrical feature applicable to all TAMs in useat this plant is the ?interlock? during all automatic cycles. Whenever onecomponent of the TAM is in operation the other components are interlockedelectrically so that they cannot move while the given element is away from itsrest position. (Tr. 119, 120, 128, 149, 155, 157). Thus when the bead stitchersare in motion the bead setters are interlocked from moving inwards. (Tr. 119,128). On the 59J model the bead setters are interlocked and prevented frommoving for approximately 4 1\/2 seconds while the spring stitchers are inmotion. (Tr. 149). On the model 80 machine, the bead setters are interlockedduring the ply-down and flipper stitch phases of the automatic cycle. (Tr. 155,156) (Ex. R 8).??????????? The control panels on the models 59J and 80 are quitesimilar. They utilize a mushroom type stop button for actuation from any angle.(Tr. 122 128) (Exs. R 2, R 4). The other buttons are depressed to guard againstaccidental actuation. The stop button instantly shuts down the entire unit,with the effect of almost immediately retracting the bead setters if they arein the process of performing their function. (Tr. 120). The builder seldom usesbuttons other than the reset and cycle activators. (Tr. 84, 123).??????????? In addition to the safety stop pedal and control panelstop button, all TAMs have safety ropes extending around the server. Whenpulled they have the same effect as depression of the stop pedals or buttons,immediately shutting off the unit. (Tr. 138, 139).??????????? The bead stitchers or ?pineapples,? generally operatewithin the same automatic cycle with the bead setters. During the automaticcycle they move around and over the drum, operating to turn up the tire pliesover the bead and ?stitch? (adhere) the plies to the tire fabric. (Tr. 188190).??????????? The bead setters are of circular metal construction. Theyoperate within an automatic cycle at a given point during the construction oftires to adhere the bead to the shoulder of the tires. The beads are steel orwire hoop-shaped components which are placed in the bead setter prior toactuation. The bead is set against the drum forcefully in order to adhere it tothe shoulder of the tire stock. The ply stock is then folded up over the bead tosecure it. When the bead setter is actuated by depression of the automaticcycle pedal, immediately a loud hissing noise is emitted before the bead settermoves toward contact with the building drum. (Tr. 13, 137). Travel time for thebead setter varies from 1 1\/2 to 2 seconds after actuation. (Tr. 155, 219).During the elementalsequences involved in building the various types of tires, the builder isrequired to turn away from his machine and use both hands to separate two beadsat the bead rack behind him. The bead set (bead setter moving in with forceagainst the main building drum) takes place while the machine operator isturned away from the machine separating the beads at the bead rack. (Tr. 150,151). The earlier generation model 45 TAM presents a little differentsituation, with the bead setters coming in when the machine operator lets up ona particular lever. While activating the bead setters with his right hand, hegrasps a turn-up tool with his left hand approximately 4 feet from the nearedge of the drum. After the bead set is completed, the builder manually turnsup the ply around the edge of the drum with a turn-up tool. (Tr. 161 164).??????????? The earnings of tire builders are dependent uponefficient production of tires, and performance of the job tasks which areinternal to automatic cycles during the building sequence enables the builderto increase his speed. Any normal internal functions which are performedoutside of the automatic cycle add time to the tire building process, tendingto lower the builder?s earnings. (Tr. 147).??????????? The TAMs in use at the respondent?s Dayton plant aretypical of those in general use in the tire manufacturing industry. (Tr. 216).The control panel stop button is standard, but the stop foot pedal is not socommon. (Tr. 216). The safety rope is also virtually universal in the industry.(Tr. 217). The mat being utilized by the respondent on its model 401 machinesis not commonly used in the industry. In the tire building industry generally,the number of accidents due to TAM operation has been quite low. (Tr. 218).??????????? A safety mat is being utilized by the respondent onseveral of its model 401 TAMs on an experimental basis. The mats cover a widearea in front of the machines. In order to permit the bead setting cycle tofunction, the tire builder must step off the mat. The cycle will not occurwhile he is standing anywhere on the mat. (Tr. 30, 31) (Ex. C 16).??????????? At least five accidents involving bead setters have beenexperienced at the respondent?s Dayton plant in the past 10 years. In April1966 a tire builder lost portions of two fingers through amputation when anelectrical interlock system failed and permitted the bead setters to activatewhile the builder?s fingers were in the danger zone. (Tr. 103). In November1972 a builder lost the tip of a finger when the bead setters would notproperly pass the stock on the drum. The builder attempted to manually assistthe operation and sustained the injury. (Tr. 107). (Ex. C 15C). In March 1973 abuilder suffered a fractured finger on the left hand due to bead setteroperation. (Ex. C 15). In June 1973 a builder sustained contusions andlacerations of his right forefinger when the bead setters activated. He wasattempting to crimp down the stock on the building drum just prior to the accident.(Tr. 87, 88) (Ex. C 15B). In August 1973 a builder sustained contusions andnumbness of two fingers on the right hand due to bead setter operation. (Ex. C15A).??????????? Discussion??????????? The respondent argues (1) that the cited standard is notapplicable to the bead setting operation because there is no ?point ofoperation? hazard, (2) that if the standard is held to apply to bead setting,then its requirements have been satisfied, (3) that the application of thestandard to the machines at issue is violative of due process, (4) that suchapplication would be against public policy, and (5) that the standard is voidfor having been improperly promulgated.[14] The complainant andintervenor assert that the standard is properly applicable to tire assemblymachines, and urge that the citation be affirmed.??????????? I find no great difficulty in concluding that the citedstandard applies to the respondent?s tire assembly machines, even though thismay be the first case in which the issue has arisen. Focusing on the beadsetting cycle, it is clear that ?work is actually performed upon the material?during that particular operation. It is also obvious that the forceful inwardmovement of the bead setters presents a significant hazard to the machineoperator. Most assuredly, tire assembly machines are sophisticated pieces ofmachinery, but the language of the standard is very broad. It encompasses byits terms, regardless of complexity, all machines in which there is a point ofoperation exposing employees to injury.??????????? The respondent has recognized the hazard, and has builtcertain safeguards into the machines, in the form of emergency stop buttons andropes. A number of machines are also equipped with an emergency foot pedal. Allof these will almost immediately shut down the machine when actuated.Additionally, tire building sequences have been designed to keep the operatorat a safe distance during the bead setting operation.??????????? These devices have not prevented accidents, however,because they did not actually prohibit access to the danger zone during thecritical time. Taking a further step, the respondent, for experimentalpurposes, has equipped several of its tire assembly machines with a floor matdevice which prevents the activation of the bead setters until the operator hasstepped off the mat and away from the danger zone. This appears to be one typeof guarding which would satisfy the requirements of the standard. There areundoubtedly others within the respondent?s engineering and design capabilities.??????????? As stated by the Commission in Akron Brick and BlockCo., No. 4859, CCH OSHD Par. 20, 302 (1976):it is clear fromthe examples provided that the method of machine guarding should not bepredominantly dependent upon human behavior. The plain purposes of the standardare to avoid dependence upon human behavior and to provide a safe environmentfor employees in the machine area from the hazards created by the machine?soperation.?The standardrecognizes that men do not discard their personal qualities when they go towork. Although men take to the job their intelligence and skills, they alsotake along their emotional makeup and any tendency to neglect any specifiedcourse of conduct…???????????? In the light of this language, the construction ofelemental sequences which in theory turn the employee away from the machine,reaching for beads, just before the automatic activation of the bead setters,is not a satisfactory guarding device within the meaning of the standard. Itassumes that the employee will not deviate from the prescribed sequence. Theaccident experience of record proves the invalidity of the assumption.??????????? The respondent?s contentions with respect to violationsof due process and public policy are not persuasive and must be rejected. It ismy conclusion that the respondent has violated the machine guarding standard atissue.FINDINGSOF FACT??????????? The evidence of record has been carefully considered andevaluated in its entirety. The following facts are specifically determined inresolving the issues:??????????? 1. The respondent, Dayton Tire and Rubber Company, adivision of The Firestone Tire and Rubber Company, maintains a place ofemployment in Dayton, Ohio, where it is engaged in the manufacture of tires,utilizing materials produced outside the state of Ohio and shipping finishedproducts to points outside the state of Ohio.??????????? 2. An inspection of the respondent?s Dayton plant wasconducted by authorized representatives of the Department of Labor during theperiod October 20 28, 1975.??????????? 3. Citations and a notice of proposed penalties wereserved upon the respondent on November 19, 1975. The respondent served a noticeof contest upon a representative of the Department of Labor on December 13,1975.??????????? 4. During the inspection, a Skil portable drill, 1\/4?,was observed in a storage cabinet in the Carpenter Shop, ungrounded. It wasrated 110 115 volts, AC.??????????? 5. During the inspection, oil and water were observed invarious locations between the respondent?s curing presses, where employees wererequired to walk from time to time. These conditions posed a slipping hazard.The respondent had ordered floor mats for placement in the affected areas. Someof these were in place at the time of the inspection. Leaks may appear at anytime and are inevitable in the presence of machinery utilizing thousand ofvalves. The respondent had made good faith attempts to remedy the situation, buthad failed to completely control matters because of circumstances beyond itscontrol.??????????? 6. During the inspection several horizontal belts oncompressors in the Pump or Power House were observed to be guarded on threesides, but open on the fourth, inner side. These were located in a restrictedarea of the plant, occupied by only two or three licensed powerhouse engineersper shift. The unguarded portion of these compressors was not accessible toemployee contact, except in the event of intentional exposure.??????????? 7. During the inspection horizontal belts on a pump motordrive in the cement house were observed to be exposed to a height two inchesabove the floor. The drive otherwise was completely guarded. Inadvertentcontact with these belts is highly unlikely.??????????? 8. During the inspection a bale cutter was observed tohave no safety instruction sign at a point adjacent to the knife cutting area.However, a Safe Operating Procedure describing proper operation with respect tothe knives was posted in the operator?s task area 10 15 feet away. This is thearea where the operator spends 75 85% of his work time.??????????? 9. During the inspection, flood lights on the back of therespondent?s four-roll calender were observed unguarded. These lamps are not ina materials-handling area, and it was not necessary for employees to exposethemselves to any hazard posed by the unguarded lamps.??????????? 10. During the inspection, eight unguarded sunlamps wereobserved in a quality control laboratory. These were being utilized to test theability of whitewall tires to resist sunlight without discoloration. They weresuspended about 18 inches above a table on which the tires are placed in a flatposition. No exposure of the lamps to significant breakage hazard was shown.??????????? 11. During the inspection, air nozzles used as anintegral part of the production process in readying used tire molds for newgreen tire molding were found to have measured nozzle pressure of approximately80 pounds per square inch. The respondent cannot properly clean out flakes andbits of rubber from the molds without using more than 30 p.s.i. It has tried todo so and has failed. The proper removal of foreign matters from the molds isessential to the construction of a quality tire.??????????? 12. During the inspection a large number of truck andpassenger tire building machines (TAMs) were observed, which posed a hazard tothe operators. The hazard resulted from exposure of hands and fingers to theincoming movement of the bead setters.???????????? 13. In spite of the standard operating procedures whichrequire the operator to turn away from the tire assembly machines during theactivation of the bead setters, operators have frequently found it necessary toapply hands and fingers to the edges or overlap of the tire immediately priorto the bead setting operation. This has resulted in finger injuries.??????????? 14. Although several tire assembly machines are equippedwith an emergency stop pedal which deactivates the bead setters, a large numberof the respondent?s TAMs are not equipped with this device.??????????? 15. On four occasions during the period November 1972through August 1973, operators suffered finger injuries resulting from thetriggering of the bead setters on the respondent?s tire assembly machines. Intwo instances, the operators lost portions of their fingers through amputation.??????????? 16. The injuries sustained by the tire machine operatorsduring the 1972 1973 period did not result from intentional disregard of safeoperating procedures.??????????? 17. The respondent has equipped a few of its truck tireassembly machines with an electrically operated floor mat device which permitsactivation of the bead setters only when the operator has stopped off the mat.??????????? 18. Approximately 100 of the respondent?s tire assemblymachines were not equipped, at the time of the inspection, with floor matdevices or any other form of satisfactory guard to prevent the operators?fingers or hands from coming into contact with the bead setters during theiroperating cycle.CONCLUSIONSOF LAW??????????? 1. At all times pertinent hereto, the respondent was anemployer within the meaning of Section 3(5) of the Act, engaged in a businessaffecting commerce, and having employees.??????????? 2. The Occupational Safety and Health Review Commissionhas jurisdiction over the parties and the subject matter herein.??????????? 3. The citation, notification of proposed penalty, andnotice of contest were served by and upon the respective parties in accordancewith Section 10 of the Act.??????????? 4. The respondent did not violate the following safetystandards, litigated herein:29 C.F.R. ? 1910.308(a)and 309(a); N.E.C., NFPA 70 1971, Article 250 45.?29 C.F.R. ?1910.22(a)(2);?29 C.F.R. ?1910.219(e)(1)(i);?29 C.F.R. ?1910.145(c)(3);?29 C.F.R. ?1910.308(a) and 309(a); N.E.C., NFPA 70 1971, Article 110 17(b);?29 C.F.R. ?1910.242(b).???????????? 5. The respondent violated the safety standard set forthat 29 C.F.R. ? 1910.212(a)(3)(ii), as alleged in Citation No. 1, as amended,under Item 40.??????????? 6. The violation found under No. 5 above was non-serious.??????????? 7. Due consideration having been given the criteria in 29U.S.C. ? 666(i), the civil penalties assessed in the order below are reasonableand appropriate for the specified violations, under the circumstances shown.ORDER??????????? Upon the basis of the foregoing findings of fact,conclusions of law, settlement stipulations, and the record as a whole:??????????? ?(1) Respectingunlitigated matters, it is ORDERED:??????????? (a) That subsection 3 of Item 23, and Item 44 of CitationNo. 1, as amended, are vacated;??????????? (b) That Items 8, 9, subsections 1 6 of Item 15,subsections 1, 4, 5, 6, 7, 11, and 12 of Item 23, Items 27, 32, 34, 36, thelast example of Item 41, and Item 46 of Citation No. 1, as amended, areaffirmed;??????????? ?(c) That CitationNo. 2 is affirmed;??????????? (d) That Citation No. 4 is affirmed;??????????? (e) That civil penalties of $60 and $80 are assessed onItems 23 and 36 respectively of Citation No. 1, as amended; that a penalty of$100 is assessed on Citation No. 2; and a penalty of $700 is assessed onCitation No. 4.??????????? (2) Respecting litigated matters, it is FURTHER ORDERED:??????????? (a) That Citation No. 3 is vacated;??????????? ?(b) That Items 15,20, 23, 35 and 41 of Citation No. 1, as amended, are vacated;??????????? (c) That Item 40, Citation No. 1, as amended, isaffirmed;??????????? (d) That a civil penalty of $80 is assessed for theviolation found under Item 40 of Citation No. 1, as amended.??Louis G. LaVecchiaJudge, OSHRCDated: April, 18, 1977?Chicago, Illinois.\u00a0[1] The standardprovides as follows:?1910.212 General requirements for all machines.(a)Machine guarding?(3) Point of operation guarding.(ii)The point of operation of machines whose operation exposes an employee toinjury, shall be guarded. The guarding device shall be in conformity with anyappropriate standards therefor, or, in the absence of applicable specificstandards, shall be so designed and constructed as to prevent the operator fromhaving any part of his body in the danger zone during the operating cycle.[2] Respondent?spetition for discretionary review raises the following issues:(1)Is section 1910.212(a)(3)(ii) applicable to the bead setting operation onRespondent?s tire assembly machines (TAMs)?(2)Does application of the cited standard violate due process of law?(3)Was this standard improperly promulgated and thus void ab initio?(4)Do public policy considerations suggest that the cited standard should not beapplied in this manner to TAMs?(5)If the cited standard is applicable, has its performance criterion beensatisfied by the combination of active and passive safety devices andprocedures on the TAMs?[3] The bead is asteel wire, hoop-shaped component which is installed in a tire to give itspecial strength at points of maximum stress.[4] A floor matprevents the activation of the bead setters until the operator of the TAM hasstepped off the mat and away from the danger zone. Respondent had alreadyequipped several of its TAMs (models that were not cited by the Secretary) withfloor mats.[5] This subsectionprovides as follows:(iv)The following are some of the machines which usually require point of operationguarding:(a)Guillotine cutters.(b)Shears.(c)Alligator shears.(d)Power presses.(e)Milling machines.(f)Power saws.(g)Jointers.(h)Portable power tools.(i)Forming rolls and calenders.[6] Even underRespondent?s suggested restricted definition of point of operation, it hasviolated section 1910.212(a)(3)(ii) for at least some of its TAMs. Testimony atthe hearing indicated that for some tires on some model TAMs tire builders usedtheir fingers to press down the tire plies. Judge LaVecchia in his findings offact determined that operators have frequently found it necessary to applyhands and fingers to the edges or overlap of the tire immediately prior to thebead setting operation. Thus, tire builders are positioning or performing workon the material immediately before the machine?s action on some machines.[7] Respondent alsocontends that section 1910.212(a)(3)(ii) is unenforceably vague as applied toits TAMs because protective devices such as floor mats or two-hand devices havenot been recognized as necessary in the tire building industry. However, thisargument overlooks the fact that the standard itself clearly places employerson notice of the performance it requires. Further, barrier guards, two-handedtripping devices, and electronic safety devices are listed in section1910.212(a)(1) as examples of guarding methods. Hence there is no need toresort to criteria external to the standard to determine whether employers haveadequate notice of the standard?s requirements. See Hughes Bros., Inc.,78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1978 CCH OSHD ?22,909 (No. 12523, 1978); Pass& Seymour, Inc., supra.[8] Respondent inessence argues that section 1910.212 is improperly promulgated with respect toTAMs because the machine guarding suggested by the Secretary in this case wasnot required under the source of the standard, 41 C.F.R. ? 50?204.5, a standardpromulgated under the Walsh-Healey Act (41 U.S.C. ?? 35?45). However, in ourdecision in Diebold, we concluded that ?. . . the source of section1910.212 required point of operation guarding of all machines for which therewas exposure to injury.?The Sixth Circuit, in upholding theCommission?s conclusion in Diebold that the standard was validlypromulgated, also stated that ?industrial practice and belief? may be relevantin determining whether the promulgation of a standard pursuant to 29 U.S.C. ?655(a) from a source standard is valid. 585 F.2d at 1332. However, Respondentin this case has failed to present any convincing evidence concerningindustrial practice and belief that would show that TAMs were exempt from pointof operation guarding during the administration of the source standard underthe Walsh-Healey Act. Additionally, we are not aware of any evidence concerningeither the legislative history or the administrative enforcement experienceunder the Walsh-Healey Act that would show that the machine guardingrequirements under that act were different from what we hold is required inthis case. Accordingly, this argument is rejected.[9] Respondent cites A& M Sheet Metal, Inc., 75 OSAHRC 89\/E6, 3 BNA OSHC 1668, 1975?76 CCHOSHD ? 20,099 (No. 4435, 1975) and several other Commission and judge?sdecisions in arguing that there is no hazard in this case. The cases cited byRespondent are factually distinguishable from this case. Unlike here, in thosecases a point of operation hazard was not established by a preponderance of theevidence.[10] According toRespondent, floor mats were installed on some of its TAMS to protect themachine operator from the rotating action of the machine?s segmented ply rings.The record reveals, however, that floor mats would also protect against thehazard associated with the closure of the bead setters.[11] The Sixth Circuitin Diebold, supra at 1333, concluded that national safety legislation isnot limited to the present ?state-of-the-art,? but may properly forcetechnological advances through the promulgation of requirements which arebeyond what industry is immediately capable of attaining. See also Societyof Plastic Industries, Inc. v. OSHA, 501 F.2d 1301, 1309 (2nd Cir. 1975); Atlantic& Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548 (3rd Cir. 1976). Ingeneral, the Commission subscribes to this view of the Act. However, this doesnot mean that an employer is required to conduct open-ended research anddevelopment in attempting to comply with the Act. See F. H. Lawson Company,80 OSAHRC ___, 8 BNA OSHC 1063, 1980 CCH OSHD ? 24,277 (No. 12883, 1980), appealdocketed, No. 80?3277 (6th Cir. April 21, 1980); Samson Paper Bag Co.,80 OSAHRC ___, 8 BNA OSHC 1515, 1980 CCH OSHD ?24,555 (No. 76?222, 1980); seealso American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3dCir. 1978), cert. granted, 435 U.S. 914 (1978).In this case, it is clear that itis well within Respondent?s ability to devise guarding techniques that willmeet the requirements of the standard. Therefore, we are not presented with acase where an employer must develop new technology in order to comply with theterms of the cited standard.[12] CommissionerCottine would affirm the $80 penalty proposed by the Secretary. CommissionerCottine concludes that the Review Commission majority has failed to give dueconsideration to the four criteria for penalty assessment that are listed insection 17(j) of the Act. He finds that the gravity of the violation in thiscase is relatively high because on two occasions operators of Respondent?s TAMslost portions of their fingers through amputation. Commissioner Cottine alsofinds that Respondent?s prior history under the Act does not merit a reductionin the penalty below the proposed $80, noting in particular that Respondent hascommitted repeated violations of other standards.[13] The complainantmoved to dismiss and vacate subsection 3 of Item 23, and Item 44 from CitationNo. 1. The proposed penalties on Citations 2, 3, and 4 were reduced to $100,$100, and $700 respectively. The respondent moved to withdraw its notice ofcontest to Items 8, 9, subsections 1 through 6 of Item 15, subsections 1, 4, 5,6, 7, 11, and 12 of Item 23, and Items 27, 32, 34, 36, the last example of Item41, and Item 46, of Citation No. 1, and agreed to pay the proposed penalties onthose items. The respondent further appears to have agreed to withdraw itsnotice of contest to Citations 2 and 4, since it agreed to pay the amendedproposed penalties for the alleged violations, and also agreed that only thestandards discussed in this decision remained in issue. By apparent oversight,the respondent?s withdrawal of its contest to the latter two citations was notspecifically stated during the stipulation discussion. The agreement isapproved.[14] The respondentmakes this contention in order to protect its rights of appeal. It is awarethat this defense has been rejected by the Commission in Diebold, Inc.,Nos. 6767, 7721 and 9496, 3 OSHC 1897; CCH OSHD Par. 20,333 (1976), appealdocketed, 6th Cir. No. 76 1278.”