“Docket No. 89-0422 SECRETARY OF LABOR,Complainant,v.NATIONAL METALWARES, INC.,Respondent.OSHRC Docket No. 89-0422ORDER This matter is before the Commission on a Direction for Reviewentered by Commissioner Velma Montoya on June 18, 1990. The parties have now filed aSettlement Agreement.Having reviewed the record, and based upon the representationsappearing in the Settlement Agreement, we conclude that this case raises no matterswarranting further review by the Commission. The terms of the Settlement Agreement do notappear to be contrary to the Occupational Safety and Health Act and are in compliance withthe Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the settlement Agreement into this order. This isthe final order of the Commission in this case. See 29 U.S.C. ? 659(c), 660(a) and(b).Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated:\u00a0\u00a0\u00a0 July 22, 1991July 5, 1991Ray H. Darling, Jr. Executive Secretary Occupational Safety and HealthReview CommissionRe: Secretary of Labor v. National Metalwares, Inc. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 OSHRC No. 89-0422Dear Mr. Darling:Enclosed for filing are five copies of a settlement agreementwhich resolves all issues in the case now pending before the commission.Mr. Chadd and I would like to express our very sincereappreciation to the Commission for allowing us the time necessary to complete thisagreement to the advantage of both parties.Sincerely,Daniel J. MickCounsel for Regional Trial LitigationEnclosurescc; Charles M. Chadd, Esq.LYNN MARTIN, Secretary of Labor,United States Department of Labor,Complainant,v.NATIONAL METALWARES, INCORPORATED,Respondent.OSHRC DocketNo. 89-0422SETTLEMENT AGREEMENTComplainant, LYNN MARTIN, Secretary of Labor, United StatesDepartment of Labor, and Respondent, NATIONAL METALWARES, INC., pursuant to Rule 100 ofthe Occupational Safety and Health Review Commission, 29 CFR ? 2200.100, hereby agree toresolve all pending issues in the above matter as follows:With respect to the notification of failure to abate(Paragraphs 1-5 of this Agreement)1. The Complainant hereby amends the notification of failure toabate alleged violations issued against Respondent on January 12, 1989 as follows:(a) Complainant withdraws the allegation of subpart (b) thatRespondent failed to abate Die No. 355.(b) Complainant reduces the penalty proposed to Eleven ThousandFive Hundred Dollars ($11,500).2. The Respondent has no objection to the amendment of thenotification of failure to abate as set forth in Paragraph 1 above and withdraws itsnotice of contest to the notification of failure to abate as amended herein.3. With respect to mechanical power presses at NationalMetalwares, the parties agree that the issue of safeguarding the point of operation mustbe approached on a die-by-die basis.4. National Metalwares represents that on each die currently inactive use (a list of such dies is attached as Exhibit A), the means of safeguarding thepress operator from the hazard of the point of operation is either physical restraints ortwo-hand controls with the exception of Dies Nos. 355, 359, 478 and 933. With respect toDies Nos. 355, 359, 478 and 933, the means for protecting the press operator from thehazard of the point of operation is a safeguarding system consisting of (a) a physicalbarrier attached to the press with openings designed to satisfy two conditions – (i) allowan elongated, tubular part to be inserted into the die area and (ii) allow the pressoperation to be performed on the part; (b) an elongated tubular part in the barrieropening throughout the press cycle; and (c) an operator holding the elongated tubular partwith both hands during the press cycle. In connection with Die No. 933 the parties haveagreed that Respondent will incorporate the changes which are set forth in Exhibit Bhereto. The safeguarding systems utilized with respect to Dies Nos. 355, 359, 478 and 933(as set forth on Exhibit B for Die No. 933) have been reviewed by the Complainant and eachsystem is in compliance with the point of operation safeguarding requirements of 29 CFR ?1910.217. The parties also agree that the use of properly adjusted physical restraints ortwo-hand controls on the other Dies identified on the notification of failure to abateconstitute compliance with the point of operation safeguarding requirements of 29 CFR ?1910.217.5. National Metalwares further represents that after July 1,1991, when new dies are added to its operation or existing dies are modified, it willattempt to utilize physical restraints or two-hand controls as the means of safeguardingthe point of operation. If National Metalwares’ analysis demonstrates that physicalrestraints or two-hand controls cannot be used on a new or modified die and if thephysical barrier openings referred to in (b) (i) below cannot conform to the requirementsof Table 0-10 of 29 CFR ? 1910.217 for the reasons set forth in (b) (i) below, thenNational Metalwares will (a) document the reason(s) why physical restraints or two-handcontrols cannot be used with respect to the die in question and (b) design and construct asafeguarding system for use with that die consisting of (i) a physical barrier withopenings designed to satisfy two conditions – allow the elongated, tubular part utilizedin conjunction with the die to be inserted into the die area and allow the press operationto be performed on the part; (ii) an elongated tubular part in the barrier openingthroughout the press cycle; and (iii) an operator holding the elongated tubular part withboth hands throughout the press cycle, provided further that the design shall consider andaccount for the issue of whether an adjacent opening(s) in the barrier shall expose anemployee to a point of operation or nip point hazard if the hand slips while holding atubular part. A safeguarding system meeting the conditions of this paragraph is incompliance with 29 CFR ? 1910-217.6. The parties agree that the terms of Paragraph 5 of thisAgreement shall remain in effect for a term of six (6) years from the date of execution ofthis Agreement. After the six-year period, the terms of Paragraph 5 shall continue toremain in effect unless one of the parties to this Agreement gives a written notice oftermination by certified mail to the other party and upon such notice the terms ofParagraph 5 shall expire 120 days after the date the written notice is received. IfParagraph 5 is terminated under the terms of this Paragraph and if a citation issubsequently issued alleging that a safeguarding system meeting the terms of Paragraph 5violates the point of operation safeguarding requirements of 29 CFR ? 1910.217, then withrespect to that first subsequent citation, Respondent shall not be barred from raising anydefense to that citation including those raised in this proceeding and the Judge’sdecision in this matter shall not have preclusive effect on any issue raised by that firstsubsequent citation.With Respect to Item No. 1 of Citation No. 2 (Paragraphs 6-9of This Agreement)7. Respondent hereby withdraws its notice of contest to ItemNo. 1 of Citation No. 2.8. Complainant has no objection to the withdrawal ofRespondent’s notice of contest to Item No. 1 of Citation No. 2. 9. Item No. 1 of Citation No. 2 claims that the machine guarding in place on Pines TubeBender No. 1 was not adequate to meet the requirements of 29 CFR ? 1910.212(a)(1).Although Respondent does not admit the allegations of the citation, it has redesigned theguard on that machine. A schematic of that guard is attached hereto as Exhibit C.Complainant has reviewed the design set forth on Exhibit C and agrees that it is incompliance with the requirements of 29 CFR ? 1910.212.10. The parties agree to a penalty of $500 for Item. No. 1 ofCitation No. 2.General Provisions Applicable to All Issues11. None of the foregoing agreements, statements, findings andactions taken by Respondent shall be deemed an admission by the Respondent of theallegations contained within the Notification of Failure to Abate, Item No. 1 of CitationNo. 2 and the Notification of Penalty and the Complaint in this action. The agreements,statements, findings and actions taken herein are made for the purpose of compromising andsettling this matter economically and amicably.12. The parties agree that this settlement agreement resolvesall pending issues in the above matter and that this settlement agreement, and not theJudge’s decision, shall control the outcome of this case.13. Respondent has forwarded a check to Complainant made out to\”United States Department of Labor – OSHA\” in the amount of Twelve ThousandDollars ($12,000) in full payment of the penalties set forth herein.14. It is hereby certified by Respondent that this SettlementAgreement has been given to employees represented by an authorized representative inaccordance with Rules 7 and 100 of the Commission’s Rules of Procedure. It is herebyfurther certified by Respondent that this Settlement Agreement has been served onemployees not represented by an authorized employee representative, if any, by postingthis agreement in a place where the Citation is required to be posted, in accordance withRules 7 and 100 of the Commission’s Rules of Procedure.The Complainant and the Respondent agree that an order shouldbe entered which approves this agreement in all respects.DATED: July 5, 1991.NATIONAL METALWARES, INC.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 DAVID S. FORTNEYDeputy Solicitor of LaborDANIEL MICKCounsel for Regional Trial LitigationAttorneys for Lynn MartinSecretary of Labor, UnitedStates Department of Labor, ComplainantGary HillIts PresidentCharles M. ChaddAttorney forNational Metalwares, Inc.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0NOTICE Any party (including any authorized employee representative ofaffected employees and any affected employee not represented by an authorizedrepresentative) who has any objection to the entry of an order as set forth in thisagreement, must communicate such objections within ten (10) days of the posting of thisagreement to the Executive Secretary, Occupational Safety and Health Review Commission,1825 K Street, N.W., Room 401, Washington, D.C. 20006 with copies to attorneys forcomplainant and respondent.The pictorial exhibit referred to above is not available inthis format.Please telephone the Review Commission Public Information Office, FAX: 202-606-5050; e-mail: [email protected]\u00a0SECRETARY OF LABOR,Complainant,v.NATIONAL METALWARES, INC.,Respondent.OSHRC Docket No. 89-0422APPEARANCES:Richard Kordys, Esquire, Office of theSolicitor, U.S. Department of Labor,Chicago, Illinois, on behalf ofcomplainant.Charles M. Chadd, Esquire, Pope, Ballard,Shepard and Fowle, Ltd., Chicago,Illinois, on behalf of respondent.DECISION AND ORDER BRADY, Judge:\u00a0\u00a0\u00a0 Respondent, NationalMetalwares, Inc., (\”Natonal\”), contests a notification of failure to abatealleged violation and two citations issued by the Secretary of Labor(\”Secretary\”) on January 12, 1989.\u00a0 The proceeding was initiated followingan inspection of National’s plant located at 900 North Russell Avenue in Aurora, Illinois,by the Occupational Safety and Health Administration (\”OSHA\”).National is a manufacturer of tubular steel components andsub-assemblies for other manufacturing companies.\u00a0 It employs approximately 370workers in Illinois, including 275 at the Aurora plant.FAILURE TO ABATENational entered into a settlement agreement with the Secretaryof Labor on August 1, 1988 (Ex. C-1; Tr. 48). The settlement agreement emanated from aninspection conducted by OSHA in March 1988 (Tr. 47). The agreement, which became a finalorder of the Review Commission on September 6, 1988, pertained to 29 CFR ?1910.217(c)(2)(i)(a) and included a petition for modification of abatement and failure toabate alleged violation.On November 17, 1988, OSHA safety supervisor Alex Smith visitedNational’s Plant, accompanied by three other OSHA employees to conduct a follow-upinspection to determine whether National was in compliance with the settlement agreement.Paragraph 11(a)(i) of the settlement agreement provides (Ex. C- 1):11. This paragraph and its subparagraphs set out the method ofselection of dies to be permanently guarded within the abated period.(a) National Metalwares represents that the order of diesselected selected to be permanently guarded will be such that no later than:(i) October 1, 1988–all Category I and II dies selected to bepermanently guarded will have permanent guarding means completed.The OSHA personnel measured each of the guards designed for theCategory I and II dies (Ex. C-13). OSHA contends that 11 of the 15 guards measured wereinadequate to guard the points of operation. The 11 alleged inadequate guards were for thefollowing press and die combinations (Ex. C-13): (a) Die #324, Press #66 (b) Die #355, Press #85 (c) Die #468, Press #30 (d) Die #227, Press #37 (e) Die #464, Press #67 (f) Die #919, Press #78 (g) Die #322, Press #83 (h) Die #469, Press #70 (i) Die #116, Press #32 (j) Die #779, Press #38 (k) Die #620, Press #54 The Secretary contends that National’s guards for these presses and dies failed to meetthe requirements of 29 C.F.R. ? 1910.217(c)(2)(i)(a) which provides:Every point of operation guard shall meet the following design,construction, application, and adjustment requirements:(a) It shall prevent entry of hands or fingers into the pointof operation by reaching through, over, under, or around the guard.Section 1910.217(c)(2)(i)(b) of 29 C.F.R. provides: It shall conform to the maximum permissible openings of Table 0-10.Table 0-10 provides:The pictorial exhibit referred to above is not availabel inthis format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386;FAX: 202-606-5050; e-mail: [email protected] table shows the distances that guards shall be positionedfrom the danger line in accordance with the required openings.According to Smith’s testimony, the relevant measurements forthe dies and presses are (Exs. C-4, C-5, C-6, C-10, C-11, C-12, C-14 through C-25, C-29through C-39; Tr. 76, 89-94, 99-101, 107-108, 112-113, 116-117, 121-124, 130, 135-136,144):The pictorial exhibit referred to above is not available inthis format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386;FAX: 202-606-5050: e-mail: [email protected] distance from the guards to the points of operation of 11cited dies and presses are greater than the distances allowed in Table 0-10. The Secretaryhas shown that National was not in compliance with ? 1910.217(c)(2)(i)(a) and was thus inviolation of the settlement agreement which specifically required such abatement.In Braswell Motor Freight Lines, Inc., 77 OSAHRC 86\/D4,5 BNA OSHC 1469, 1470, 1977 CCH OSHD ? 21,881 (No. 8480, 1977), the Review Commissionheld that \”the complainant’s prima facie case of failure to abate is established upona showing that: (1) the original citation has become a final order of the Commission, and(2) the condition or hazard found upon reinspection is the identical one for whichrespondent was originally cited.\” The Secretary has met these two requirements.The Review Commission goes on to say:An employer may rebut this prima facie case by showing that thecondition was corrected or, if not corrected, that the employer has prevented the exposureof his employees to the violative condition . . . . The prima facie case may also berebutted by a showing that the condition for which the employer was cited was in fact notviolative of the Act either at the time of the original inspection or at the time ofreinspection.Id.National argues that it was in compliance with ? 1910.217because it used the alternative of guarding devices.Section 1910.217(c)(1)(i) provides:It shall be the responsibility of the employer to provide and insure the usage of\”point of operation\” guards or properly applied and adjusted point of operationdevices on every operation performed on a mechanical power press. See Table 0-10.(Emphasis added.)National argues that it is irrelevant that its guards are not in conformance with Table0-10 if they have properly applied and adjusted point of operation devices. Nationalclaims that its \”three-part safeguarding system\” brings it into compliance with? 1910.217 by way of ? 1910.217(c)(3)(i)(b), which provides:Point of operation devices shall protect the operator by:(b) Preventing the operator from inadvertently reaching intothe point of operation, or withdrawing his hands if they are inadvertently located in thepoint of operation, as the dies close.National’s \”three-part safeguarding system\” consists of (1) the actual guard,(2) the opening being so small that it only accommodates the tubular part, and (3) therequirement that the operator hold the part with both hands. This system does not meet therequirements of a \”device.\” Section 1910.211(d)(11) provides:(11) \”Device\” means a press control or attachmentthat:(i) Restrains the operator from inadvertently reaching into thepoint of operation, or(ii) Prevents normal press operation if the operator’s handsare inadvertently within the point of operation, or(iii) Automatically withdraws the operator’s hands if the operator’s hands areinadvertently within the point of operation as the dies close, or(iv) Prevents the initiation of a stroke, or stops of stroke inprogress, when there is an intrusion through the sensing field by any part of theoperator’s body or by any other object.National’s system described a method and not a device, National did not have proper\”point of operation\” guards or properly applied and adjusted point of operationdevices in accordance with ? 1910.217(c)(1)(i). Therefore, its argument that it was incompliance with ? 1910.217 must fail.National argues that if it was not in compliance with ?1910.217, then compliance with ? 1910.217(c) is infeasible. National did not contact OSHAregarding this perceived infeasibility, nor did it petition for a modification ofabatement on this point. The record establishes that at the time of the hearing, Nationalwas using restraints as the primary safeguarding method on 9 of the 11 cited presses anddies (Tr. 222-223). National claims that restraints cannot be used with Dies #779 and #355(Tr. 326-342).National’s implementation of the hand restraints contradictsits argument that the use of alternative means of guarding was not available at the timeof the inspection. National’s claim of infeasibility must fail. Finally, National arguesthat, even if it was in noncompliance with 1910.217, the violation was de minimis. Thisargument is rejected.Smith has spent 19 years in the safety compliance field. Since 1970 he has conductedapproximately 2,500 inspections, 2,300 of which involved machine point of operationguarding (Tr. 25, 43). It was his opinion that the improperly guarded presses and diespresented the hazard of amputated fingers and hands. This is a serious hazard, and it willnot be trivialized with a de minimis classification.Section 17(d) of the Act provides for a penalty of not morethan $1,000 a day for each day that a violation continues to go unabated. The abatementdate set by the settlement agreement was October 1, 1988 (Ex. C-1). The inspection tookplace on November 17, 1988. Upon full consideration of the facts, including the stepstaken by respondent to abate the violative conditions, a penalty in the amount of $23,000is deemed appropriate.CITATION ONENational was also charged with the serious violations of 19C.F.R. 1910.217(b)(4)(iii)[[1]] and 29 C.F.R. 1910.217(b)(7)(v)(b).[[2]] National wascited as follows:129 CFR 1910.217(b)(4)(iii): Pedal return springs of pedals used on mechanical powerpresses using full revolution clutches, were not of the compression type, operating on arod or guided within a hole or tube, or designed to prevent interleaving of spring coilsin event of breakage:Fabrication Department Back, L&J Press, #70229 CFR 1910.217(b)(7)(v)(b): The two hand control system for mechanical powerpresse(es) using part revolution clutch(es) was not designed to permit an adjustmentrequiring concurrent pressure from both hands during the die closing portion of thestroke:Fabrication Department Back, Rousselle Press #69.National does not dispute that it was not in compliance withthe cited standards. National disputes only the Secretary’s proposed penalties of $400 foreach of the two items.The Commission is the final arbiter of penalties in allcontested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8thCir. 1973). Under 17(j) of the Act, the Commission is required to find and give \”dueconsideration\” to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of previous violations in determining theassessment of an appropriate penalty. The gravity of the offense is the principal factorto be considered. Nacirema Operating Co., Inc., 72 OSAHRC 1\/B10, (p) BNA OSHC 1001,1971-73 CCH OSHD 15,032 (No. 4, 1971).Smith testified that the pedal return spring on Press #70 wouldnot prevent interleaving of the spring in the event of breakage. The spring, designed toreturn the pedal to the proper position, could result in another stroke by the press ,ifbroken. As to Press #69, Smith stated the controls did not require concurrent contact withthe buttons. In both instances, the hazardous conditions could result in the amputation ofemployees’ fingers and hands.After considering the factors used for determining penalties, apenalty in the sum of $200 for each item is deemed appropriate.CITATION TWONational was charged with a repeat violation of 29 C.F.R. ?1910.212(a)(1), which provides:One or more methods of machine guarding shall be provided toprotect the operator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are–barrier guards, two-hand tripping devices,electronic safety devices, etc.The citation alleged: 129 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protect operators andother employees from hazards created by pinch points:Fabrication Department Back, Pines Tube Bender #1, at Press *69, the pinch point createdby the clamping arm was not adequately guarded.The National Metalware Incorporated was previously cited for aviolation of this occupational safety and health standard or its equivalent standard 29CFR 1910.212(a)(1) which was contained in OSHA inspection number 2433977, citation number1, item number 2, issued on 4\/28\/86.National argues that the cited guard was based on a designcreated for the company by an OSHA engineer in 1987 (Ex. R-8; Tr. 175). R-8 depicts adiagram of the proposed guard. Under \”Notes,\” R-8 states in pertinent part:\”This conceptual (drawing) is prepared for design information. Company’s engineeringshall work the dimensional tolerances . . . \”National claims it is unfair for OSHA to instruct National towork on the dimensional tolerances and then cite the company for having the incorrectdimensional tolerances. National is mistaken in assuming that, because OSHA did notdictate the dimensional tolerances in the conceptual drawing, National was free to ignorethe requirements of the cited standard.Smith testified that the guard in question \”was notproperly position to prevent entry into the pinch point\” (Tr. 158). The likelyinjuries resulting from such a condition are the crushing or amputation of the fingers(Tr. 159). National was in violation of ? 1910.212(a)(1).\”A violation is repeated under section 17(a) of the Act if, at the time of thealleged repeated violation, there was a Commission final order against the same employerfor a substantially similar violation.\” Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNAOSHC 1061, 1979 CCH OSHD ? 23,294, p. 28,171 (No. 16183, 1979).National had previously been cited on April 28, 1986, forimproperly guarding the pinch points on a Pines Tube Bender (Ex. C-42; Tr. 160). (There isno dispute that the citation alleging violation of 1910.212(a)(1) became a final orderJune 1, 1987.) The violations were substantially similar. National was in repeat violationof ? 1910.212(a)(1); and, upon consideration of all factors, a penalty of $500 is deemedappropriate.The foregoing constitutes the findings of fact and conclusionsof law under Rule 52(a) of the Federal Rules of Civil Procedure.ORDERBased upon the foregoing findings of fact and conclusions oflaw, it is hereby ORDERED:1. The citation for failure to abate is affirmed and a penaltyof $23,000 is assessed.2. Citation 1 is affirmed and a penalty of $400 is assessed.3. Citation 2 is affirmed and a penalty of $500 is assessed.Dated this 15th day of May, 1990.PAUL L. BRADYJudgeFOOTNOTES: [[1]] Section 1910.217(b)(4)(iii) provides:The pedal return spring(s) shall be of the compression type,operating on a rod or guided within a hole or tube, or designed to prevent interleaving ofspring coils in event of breakage.[[2]] Section 1910.217(b)(7)(v)(b) provides:The control system shall be designed to permit an adjustmentwhich will require concurrent pressure from both hands during the die closing portion ofthe stroke.”