“SECRETARY OF LABOR,Complainant,v.SKYDYNE, INC.,Respondent,THE AMALGAMATED CLOTHING ANDTEXTILE WORKERS UNION and itsLOCAL 1410,AuthorizedEmployeeRepresentatives.OSHRC Docket No. 80-5422_DECISION_Before: ROWLAND, Chairman; CLEARY Commissioner.BY THE COMMISSION:A decision of Administrative Law Judge Wallace Tannenbaum is before theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(i) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”). Judge Tannenbaum affirmed two citation subitems allegingnoncompliance with the safety standard at 29 C.F.R. ? 1910.212(a)(3)(ii)for Skydyne’s failure to guard two hydraulic presses. The Commissionreverses the judge’s decision and vacates the subitems.ISkydyne manufactures plastic shipping containers at its Port Jervis, NewYork plant. Following an inspection by an OSHA compliance officer(\”CO\”), Skydyne was issued one multi-item serious citation and onesingle-item repeat citation. Skydyne, by its general manager, DonaldBlodgett, contested the merits, abatement dates, and penalties ofportions of the serious citation only. Pertinent to this case on review,Skydyne contested its alleged noncompliance with section1910.212(a)(3)(ii).[[1\/]] in subitems (o) and (p) of item 3 of theserious citation. Those subitems alleged noncompliance with theaforementioned standard in that hydraulic presses #502 (subitem (o)) and#503 (subitem (p)) in Skydyne’s ABS Molding Department were unguarded onall accessible sides.IIThe case went to a hearing before Judge Tannenbaum. The Secretary wasrepresented by counsel at the hearing; Skydyne’s case was conducted bynonattorney Blodgett. A union representative participated. Becausethere was no dispute about the absence of guards on the cited presses,what follows is the pertinent testimony about the operation of thepresses and whether the presses exposed employees to injury.The CO provided the following testimony on the operation of the machines:The operation involves a two-man operation; one man at the front and oneman at the rear.How it was described to me is that the material to be molded . . . ispreheated in an oven and the men would bring the material over to thedye [sic]. There is an air vacuum system that sucks the material downinto the mold and then the top ram is activated by a one-hand operationagain, and again we would go into a molding process now very similar towhat I had just described on the other presses. There’s a moldingoperation going on; it goes through a cycle, the ram comes up again, thematerial is removed and put to the side and stored there.Again, preheated material on a second run would be placed over the dye[sic], sucked down by air vacuum and, again, the process would continuefor upwards of ten hours a day.Again, one operator stands at the front, activates the control by onehand, the other hand is free. The man at the rear is standing at anunguarded point of operation, and there are no guards on either side. .. . Should employee’s extremities or hands come in contact with dyes[sic], you could have crushing injuries, amputations.The CO also testified that photographic exhibit C-10 showed the twopresses side-by-side, C-11 depicted press #502, and C-12 press #503. Heexplained that the latter two exhibits showed the presses hydraulic ramsin the down position, and that the rams bring the dies together and moldwhatever size container is being made.Blodgett presented the following testimony for Skydyne on the tworelevant presses:. . . You vacuum the part as was described by John [the CO] . . . and aplug is inserted by air. The gentleman who is doing that is generallyaround the side of the machine operating a lever, so he is not going tobe able to get his hands in that machine. The other fellow, rather thanstanding there, would probably be loading the fiberglass into the oven.. . .So, two men work on the press only on the point in time when they areputting the rather limp, loose [fiberglass] material that’s been heatedon the press, and then when they are taking it off. Taking it on andtaking it off are the only two times when there are two people near thepress.Once they put the ring on that retains the ABS in molding position, theother fellow is heading for the oven to put a new sheet in for heatingpurposes.Here again you need to load it from the front, you need to load it fromthe rear. There is a ring that has to be put on after the molten sheetis put on, and then there are a series of males that the molten sheet ispressed down on and clamps all the way around that are used to hold itin place.IIIJudge Tannenbaum affirmed subitems (o) and (p) of the citation, makingfindings of fact that the hydraulic presses were not guarded, that theirpoints of operation exposed employees to death or serious physical harm,and that Skydyne had actual knowledge the presses were not guarded. Thejudge stated that Skydyne had not offered any meaningful evidence torefute the Secretary’s case. He assessed a total penalty of $640 forcitation item 3, which also includes five other allegations ofnoncompliance with the cited standard affirmed by the judge but notsubsequently included in the direction for review of this case.Skydyne, through legal counsel, petitioned for review of the judge’sdecision. The petition was granted in part on issues which includewhether the judge erred in affirming violations of section1910.212(a)(3)(ii) because his findings of fact regarding hydraulicpresses #502 and #503 were not supported by the record. [[2\/]]IVSkydyne argues that cited section 1910.212(a)(3)(ii) requires proof theunguarded points of operation of the presses were hazardous to employeesand that the CO presented no specific testimony as to the proximity ofthe operators to the unguarded points of operation of the presses and notestimony that the operators were required to place extremities withinthe \”danger zone\” of the presses during the operating cycle. Skydyneargues that _Rockwell International Corp_., 80 OSAHRC 118\/A2, 9 BNA OSHC1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980), requires the Secretaryto prove more than just the possibility an employee may place his handsin the path of a press. _Rockwell_ requires the Secretary to prove thatsuch an event may well occur given the method of operation of the press,the way the press is handled during its operating cycle, and the speedof the press. This the Secretary failed to do, argues Skydyne.Skydyne contends that although the CO testified employees could suffercrushing injuries upon contact with the dies of the presses, the CO’stestimony about the operation of the presses was hearsay evidenceobtained from \”unidentified individuals.\” Skydyne also contends thatBlodgett refuted much of the CO’s testimony by describing how the pressoperators performed their duties and testifying that the performance ofthose duties did not subject them to point of operation hazards.The Secretary argues that the judge’s action was proper and primarilybased on the photographic exhibits and the testimony of a CO withsubstantial inspection experience. The CO testified about the presses,their hazards of operation, and the means for abating them on the basisof his own knowledge and the information given to him by Skydyne’sgeneral manager and the union’s president. The Secretary also contendsthat Blodgett’s testimony in no way rebutted the Secretary’s case.VFor the Secretary to prove a violation of section 1910.212(a)(3)(ii), hemust establish that (1) the points of operation of the two presses wereunguarded, and (2) the operation of the presses exposed employees toinjury. _Rockwell International Corp_., _supra_. There is no disputethat the Secretary proved the presses were unguarded. We find, however,that the Secretary did not prove that the operation of the pressesexposed employees to injury.In making our finding we are guided by the Commission’s statements in_Rockwell International Corp._:The mere fact that it was not impossible for an employee to insert hishands under the ram of a machine does not itself prove that the point ofoperation exposes him to injury. Whether the point of operation exposesan employee to injury must be determined based on the manner in whichthe machine functions and how it is operated by the employees.9 BNA OSHC at pp. 1097-98, 1980 CCH OSHD ? 24,979 at p. 30,846. The_Rockwell_ case also indicates that the absence of any injuries,although not conclusive, buttresses arguments that there is no exposureto injury under section 1910.212 (a)(3)(ii).The evidence on the way the presses operated was offered by the CO[[3\/]] and Blodgett. The CO’s testimony indicates that presses such asthese feature a ram that descends into a die, thereby creating ashearing effect. He stated that the fiberglass material to be moldedinto containers by the presses was held in place on the dies of thepresses and that the employee operating a press would activate the ram’scontrol with one hand while his other hand remained free. A secondemployee, the CO testified, was present at the rear of the press toassist with positioning of the fiberglass on the die and to help carrythe fiberglass to and from the oven in which it was heated. The presseswere six feet wide and three feet deep.Blodgett testified that the fiberglass was held in place on the die by avacuum system and by a ring and clamps. He stated that the fiberglassdid not have to be held in place once positioned on the die. Blodgettalso testified that the press operator \”is not going to be able to gethis hands in that machine\” and that the operator’s helper, \”rather thanstanding there [at the rear of the machine], would probably be loadingthe fiberglass into the oven. . . [T]wo men work on the press only . . .when they are putting the . . . [fiberglass] that’s been heated on thepress, and then when they are taking it off.\”The evidence summarized above shows that in this case, as in the_Rockwell_ case, the press operators did not hold the fiberglassmaterial while the latter was being molded into a container. Thefiberglass was held in place by a vacuum system, retaining ring, andclamps. Further, the compliance officer did not witness the operationof the presses and was neither able to present evidence on how far awaythe operators’ hands were from the presses’ points of operation nor totestify as to the rate of descent of the insert of the mold, bothrelevant considerations in the proof of a hazard under _Rockwell_. Therecord also fails to show any reason for the operators to place theirhands under a descending ram. Finally, there is no evidence that therewere any prior accidents in the use of the cited presses. Accordingly,the Secretary has failed, under the dictates of _Rockwell InternationalCorp_., _supra_, to prove that employees were exposed to a hazard fromthe unguarded presses. We therefore vacate the allegations ofnoncompliance with section 1910.212(a)(3)(ii) in subitems (o) and (p) ofitem 3 in serious citation 1. We also reduce the $640 penalty set bythe judge when he affirmed these two subitems of citation item 3, alongwith five other subitems of item 3 that are not on review, to $460. SOORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 10 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis matter. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Section 1910.212(a)(3)(ii) provides:? 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 anemployee to injury, shall he guarded. The guarding device shall be inconformity with any appropriate standards therefor, or, in the absenceof applicable specific standards, shall be so designed and constructedas to prevent the operator from having any part of his body in thedanger zone during the operating cycle.[[2\/]] Review was also granted on Skydyne’s arguments that the judgeerred in not specifically advising Blodgett at the beginning of thehearing that Skydyne was entitled to counsel at the hearing and in notsufficiently developing the record in light of Skydyne’s _pro_ _se_status. We have carefully examined the hearing transcript and balanceof the record and conclude that the parties were granted a fair hearing.[[3\/]] The CO did not actually see the cited presses in operation. Hetestified about their operation on the basis of information provided himduring the walk-around by plant manager DeGrote and union presidentDexter. Although Skydyne contends that the CO’s testimony on this basiswas only uncorroborated hearsay and therefore lacks probative value, wedo not reach this objection, because, as indicated _infra_, the CO’stestimony was incomplete as to salient facts, _i.e_., the distance ofthe operator’s hands from the point of operation, and the rate ofdescent of the ram. We conclude that the CO’s testimony lacks probativevalue for this reason.”