“Docket No. 80-5422 SECRETARY OF LABOR, Complainant,v.SKYDYNE, INC.,Respondent,THE AMALGAMATED CLOTHING ANDTEXTILE WORKERS UNION and itsLOCAL 1410,Authorized Employee Representatives.OSHRC Docket No. 80-5422DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY Commissioner.BY THE COMMISSION:A decision of Administrative Law Judge Wallace Tannenbaum is before the Commission forreview pursuant to section 12(j), 29 U.S.C. ? 661(i) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 Judge Tannenbaumaffirmed two citation subitems alleging noncompliance with the safety standard at 29C.F.R. ? 1910.212(a)(3)(ii) for Skydyne’s failure to guard two hydraulic presses. \u00a0The Commission reverses the judge’s decision and vacates the subitems.ISkydyne manufactures plastic shipping containers at its Port Jervis, New York plant.\u00a0 Following an inspection by an OSHA compliance officer (\”CO\”), Skydyne wasissued one multi-item serious citation and one single-item repeat citation.\u00a0 Skydyne,by its general manager, Donald Blodgett, contested the merits, abatement dates, andpenalties of portions of the serious citation only. Pertinent to this case on review,Skydyne contested its alleged noncompliance with section 1910.212(a)(3)(ii).[[1\/]] insubitems (o) and (p) of item 3 of the serious citation.\u00a0 Those subitems allegednoncompliance with the aforementioned standard in that hydraulic presses #502 (subitem(o)) and #503 (subitem (p)) in Skydyne’s ABS Molding Department were unguarded on allaccessible sides.IIThe case went to a hearing before Judge Tannenbaum.\u00a0 The Secretary was represented bycounsel at the hearing; Skydyne’s case was conducted by nonattorney Blodgett.\u00a0 Aunion representative participated.\u00a0 Because there was no dispute about the absence ofguards on the cited presses, what follows is the pertinent testimony about the operationof the presses 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 one manat 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 the dye [sic]. \u00a0There is an air vacuum system that sucks the material down into the mold and then the topram is activated by a one-hand operation again, and again we would go into a moldingprocess now very similar to what I had just described on the other presses. \u00a0 There’sa molding operation 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 continue for upwards of ten hoursa day. Again, one operator stands at the front, activates the control by one hand, the other handis free.\u00a0 The man at the rear is standing at an unguarded point of operation, andthere are no guards on either side. . . . Should employee’s extremities or hands come incontact with dyes [sic], you could have crushing injuries, amputations.The CO also testified that photographic exhibit C-10 showed the two pressesside-by-side, C-11 depicted press #502, and C-12 press #503.\u00a0 He explained that thelatter two exhibits showed the presses hydraulic rams in the down position, and that therams bring the dies together and mold whatever size container is being made.Blodgett presented the following testimony for Skydyne on the two relevantpresses:. . . You vacuum the part as was described by John [the CO] . . . and a plugis inserted by air.\u00a0 The gentleman who is doing that is generally around the side ofthe machine operating a lever, so he is not going to be able to get his hands in thatmachine.\u00a0 The other fellow, rather than standing there, would probably be loading thefiberglass into the oven. . . .So, two men work on the press only on the point in time when they are puttingthe rather limp, loose [fiberglass] material that’s been heated on the press, and thenwhen they are taking it off.\u00a0 Taking it on and taking it off are the only two timeswhen there are two people near the press.Once they put the ring on that retains the ABS in molding position, the otherfellow is heading for the oven to put a new sheet in for heating purposes.Here again you need to load it from the front, you need to load it from the rear. \u00a0There is a ring that has to be put on after the molten sheet is put on, and then there area series of males that the molten sheet is pressed down on and clamps all the way aroundthat are used to hold it in place. IIIJudge Tannenbaum affirmed subitems (o) and (p) of the citation, making findings of factthat the hydraulic presses were not guarded, that their points of operation exposedemployees to death or serious physical harm, and that Skydyne had actual knowledge thepresses were not guarded.\u00a0 The judge stated that Skydyne had not offered anymeaningful evidence to refute the Secretary’s case.\u00a0 He assessed a total penalty of$640 for citation item 3, which also includes five other allegations of noncompliance withthe cited standard affirmed by the judge but not subsequently included in the directionfor review of this case.Skydyne, through legal counsel, petitioned for review of the judge’sdecision.\u00a0 The petition was granted in part on issues which include whether the judgeerred in affirming violations of section 1910.212(a)(3)(ii) because his findings of factregarding hydraulic presses #502 and #503 were not supported by the record. [[2\/]]IV Skydyne argues that cited section 1910.212(a)(3)(ii) requires proof the unguarded pointsof operation of the presses were hazardous to employees and that the CO presented nospecific testimony as to the proximity of the operators to the unguarded points ofoperation of the presses and no testimony that the operators were required to placeextremities within the \”danger zone\” of the presses during the operating cycle.\u00a0 Skydyne argues that Rockwell International Corp., 80 OSAHRC 118\/A2, 9 BNAOSHC 1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980), requires the Secretary to prove morethan just the possibility an employee may place his hands in the path of a press.\u00a0 Rockwellrequires the Secretary to prove that such an event may well occur given the method ofoperation of the press, the way the press is handled during its operating cycle, and thespeed of the press.\u00a0 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’s testimony about theoperation of the presses was hearsay evidence obtained from \”unidentifiedindividuals.\”\u00a0 Skydyne also contends that Blodgett refuted much of the CO’stestimony by describing how the press operators performed their duties and testifying thatthe performance of those duties did not subject them to point of operation hazards.The Secretary argues that the judge’s action was proper and primarily basedon the photographic exhibits and the testimony of a CO with substantial inspectionexperience.\u00a0 The CO testified about the presses, their hazards of operation, and themeans for abating them on the basis of his own knowledge and the information given to himby Skydyne’s general manager and the union’s president. The Secretary also contends thatBlodgett’s testimony in no way rebutted the Secretary’s case.VFor the Secretary to prove a violation of section 1910.212(a)(3)(ii), he must establishthat (1) the points of operation of the two presses were unguarded, and (2) the operationof the presses exposed employees to injury.\u00a0 Rockwell International Corp., supra.There is no dispute that the Secretary proved the presses were unguarded.\u00a0 We find,however, that the Secretary did not prove that the operation of the presses exposedemployees to injury.In making our finding we are guided by the Commission’s statements in RockwellInternational Corp.:The mere fact that it was not impossible for an employee to insert his handsunder the ram of a machine does not itself prove that the point of operation exposes himto injury.\u00a0 Whether the point of operation exposes an employee to injury must bedetermined based on the manner in which the machine functions and how it is operated bythe employees.9 BNA OSHC at pp. 1097-98, 1980 CCH OSHD ? 24,979 at p. 30,846.\u00a0 The Rockwellcase also indicates that the absence of any injuries, although not conclusive, buttressesarguments that there is no exposure to injury under section 1910.212 (a)(3)(ii).The evidence on the way the presses operated was offered by the CO [[3\/]] andBlodgett.\u00a0 The CO’s testimony indicates that presses such as these feature a ram thatdescends into a die, thereby creating a shearing effect.\u00a0 He stated that thefiberglass material to be molded into containers by the presses was held in place on thedies of the presses and that the employee operating a press would activate the ram’scontrol with one hand while his other hand remained free.\u00a0 A second employee, the COtestified, was present at the rear of the press to assist with positioning of thefiberglass on the die and to help carry the fiberglass to and from the oven in which itwas heated.\u00a0 The presses were 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.\u00a0 He stated that the fiberglass did not haveto be held in place once positioned on the die.\u00a0 Blodgett also testified that thepress operator \”is not going to be able to get his hands in that machine\” andthat the operator’s helper, \”rather than standing there [at the rear of the machine],would probably be loading the fiberglass into the oven. . . [T]wo men work on the pressonly . . . when they are putting the . . . [fiberglass] that’s been heated on the press,and then when they are taking it off.\”The evidence summarized above shows that in this case, as in the Rockwellcase, the press operators did not hold the fiberglass material while the latter was beingmolded into a container.\u00a0 The fiberglass was held in place by a vacuum system,retaining ring, and clamps.\u00a0 Further, the compliance officer did not witness theoperation of the presses and was neither able to present evidence on how far away theoperators’ hands were from the presses’ points of operation nor to testify as to the rateof descent of the insert of the mold, both relevant considerations in the proof of ahazard under Rockwell.\u00a0 The record also fails to show any reason for theoperators to place their hands under a descending ram.\u00a0 Finally, there is no evidencethat there were any prior accidents in the use of the cited presses.\u00a0 Accordingly,the Secretary has failed, under the dictates of Rockwell International Corp., supra,to prove that employees were exposed to a hazard from the unguarded presses.\u00a0 Wetherefore vacate the allegations of noncompliance with section 1910.212(a)(3)(ii) insubitems (o) and (p) of item 3 in serious citation 1.\u00a0 We also reduce the $640penalty set by the 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. SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY DATED:\u00a0 JAN 10 1984The Administrative Law Judge decision in this matter is unavailable in thismatter.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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\u00a0 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 to injury,shall he guarded.\u00a0 The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shall be sodesigned and constructed as to prevent the operator from having any part of his body inthe danger zone during the operating cycle.[[2\/]] Review was also granted on Skydyne’s arguments that the judge erred innot specifically advising Blodgett at the beginning of the hearing that Skydyne wasentitled to counsel at the hearing and in not sufficiently developing the record in lightof Skydyne’s pro se status.\u00a0 We have carefully examined the hearingtranscript and balance of the record and conclude that the parties were granted a fairhearing.[[3\/]] The CO did not actually see the cited presses in operation.\u00a0 Hetestified about their operation on the basis of information provided him during thewalk-around by plant manager DeGrote and union president Dexter.\u00a0 Although Skydynecontends that the CO’s testimony on this basis was only uncorroborated hearsay andtherefore lacks probative value, we do not reach this objection, because, as indicated infra,the CO’s testimony was incomplete as to salient facts, i.e., the distance of theoperator’s hands from the point of operation, and the rate of descent of the ram.\u00a0 Weconclude that the CO’s testimony lacks probative value for this reason.”