“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-3766 VAMPCO METAL PRODUCTS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October22, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge David G. Oringer is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the occupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Oringervacated two items of a notification of failure to correct violations forfailure to guard the points of operation of two press brakes. He did so becausehe concluded that the feasibility of the guarding methods proposed by theSecretary of Labor (?the Secretary?) was not established. Chairman Cleary directedthat the judge?s decision by reviewed pursuant to Rule 91a(a), 29 C.F.R. ?2200.91a(a).[1]??????????? VampcoMetal Products, Inc. (?Vampco?) manufactures light and heavy metal products atits plant in Columbus, Ohio. On March 22, 1978, a compliance officer for theUnited States Department of Labor inspected the plant. As a result, theSecretary issued to Vampco a citation alleging that the company violatedsection 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), by failing to guard thepoints of operation of a Verson press brake used in light manufacturing and asmall Dreis & Krump press brake used in heavy manufacturing. The citationalleged that Vampco failed to comply with 29 C.F.R. ? 1910.212(a)(3)(ii).[2] Abatement was required byJune 5, 1978.??????????? Vampcodid not contest the citation which accordingly became a final order of theCommission.[3]On July 28, 1978, the same compliance officer reinspected the plant andobserved that Vampco had not installed point of operation guards on the Versonand small Dreis & Krump press brakes, and one other machine not in issuehere.[4] The Secretary thereforeissued the notification of failure to correct the violations.??????????? It isundisputed that the press brake operations exposed the operators to fracture,crushing, or amputation hazards to their hands or other body parts and thatVampco had not installed point of operation guards. The parties? disputeinstead centers on the use of five guarding methods mentioned by the complianceofficer for Vampco?s consideration?hand pull backs or restraints, two-handtripping devices, moveable gate (barrier) guards, and presence sensing devices.[5]??????????? Vampcoproduces metal products entirely according to customer demand andspecifications. Frequently only one product, such as a ladder, door, orstairway, is made from one set of specifications. Because of the varyingproducts and specifications, any table or support to hold the metal securely inthe correct position at the point of operation would frequently have to bedesigned specially for the one operation. Therefore the operators hold themetal into the point of operation.??????????? Vampcopresented the testimony of its president and production manager about thepotential problems of using any of the five guarding methods in these customoperations. The testimony about the hand pull backs and restraints was thatthey would be, in the phrase of the president, ?feasible but not practical,?and would create a hazard. On the practical problems in using pull backs orrestraints, the testimony was that the time taken for each operation would beincreased because the operator would have to adjust the pull backs orrestraints for almost every different operation to allow him to reach farenough toward the point of operation to hold the varying lengths of metal. Onthe hazard, the testimony was that, by restraining the operator in positionnear the metal in the press brake, the pull backs and restraints prevent theoperator from running out of the way of the metal when it shifts or fallsduring the operating cycle. According to the production manager, this happensonce every two to three weeks. Both witnesses believed that, because of thishazard, the operators would refuse to use pull backs or restraints. Theproduction manager also believed that a tripping hazard would result from useof pull backs or restraints tied sufficiently far from the press brake to allowthe operator running room.??????????? Theproduction manager testified that two-hand tripping devices could not be usedbecause the operators must hold the metal during the operating cycle. Bothwitnesses testified that the company had not installed moveable gate (barrier)guards because the supplier could not, in the words of the production manager,give ?any definite response that a moveable gate guard would operatesatisfactorily under our conditions,? that is, that the guard would satisfymachine guarding requirements in all operations. The president expressedconcern that any opening between the gate guard and the metal being formedwould prevent the press brake from cycling. However, the president did not denythat the gate guard can be adjusted to different material thicknesses.[6] Also, despite the concernabout the supplier?s inability to give a complete guarantee, the productionmanager admitted that the company did not ask exactly in what percentage ofVampco?s operations the supplier believed the guard would work.??????????? Theproduction manager testified that presence sensing devices could not be used onthe Verson and small Dreis & Krump press brakes because the foot pedalswhich control the cycling are not electrically controlled. They would thereforehave to be modified to electrical control for use of presence sensing devices.??????????? JudgeOringer concluded that the feasibility of guarding methods had not beenestablished.[7]The judge did not, however, specifically consider the evidence on each guardingmethod except with respect to pull backs and restraints. These he founddangerous in view of the shifting metal. He was ?convinced that the operatorswould never use them.???????????? In HughesBrothers, Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1834?35, 1978 CCH OSHD ? 22,909at pp. 27,718?19 (No. 12523, 1978), we held that, to establish a violation ofsection 1910.212(a)(3)(ii), the Secretary is not required to show thefeasibility of point of operation guarding methods. Rather, the burden is uponthe employer to establish as affirmative defenses that the use of the suggestedguarding methods would be impossible or would create a greater hazard.[8] Accord, AmforgeDivision, Rockwell International, 80 OSAHRC ___, 8 BNA OSHC 1405, 1980 CCHOSHD ? 24,439 (No. 76?3488, May 6, 1980) and cases cited therein. We havecomprehensively discussed these defenses and applied them to factual situationssimilar to those in this case. Amforge Division, Rockwell International,supra; F.H. Lawson Co., 80 OSAHRC ___, 8 BNA OSHC 1063, 1980 CCH OSHD?24,277 (No. 12883, February 29, 1980) pet. for review filed, No.80?3277 (6th Cir. Apr. 21, 1980); Pass & Seymour, Inc., 79 OSAHRC101\/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ? 24,074 (No. 76?4520, 1979) pet.for review dismissed, No. 80?4013 (2d Cir. March 19, 1980); HughesBrothers, Inc., supra. Because the judge did not analyze the evidenceregarding each of the point of operation guarding methods in terms of thesedefenses, we set aside his decision and remand the case to him for factualfindings and legal conclusions consistent with this opinion. SO ORDERED.?FORTHE COMMISSION:?RAYH. DARLING, JR.EXECUTIVESECRETARYDATE:OCT 22, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-3766 VAMPCO METAL PRODUCTS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 June14, 1979Appearances:Forthe Complainant:WilliamS. Kloepfer, Assoc. Regional SolicitorLorettaQuade, Esq., of CounselU.S. Department of Labor881Federal Office Building1240East Ninth StreetCleveland,Ohio 44199\u00a0Forthe Respondent:RankinM. Gibson, Esq.Lucas,Prendergast, Albright, Gibson, Brown and Newman, Esqs.42East Gay StreetColumbus,Ohio 43215?DECISION AND ORDERORINGER,JUDGE:??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and Health Actof 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the ?Act?) toreview citations issued by the Secretary of Labor (hereinafter referred to as?Complainant?) pursuant to section 9(a) and a proposed assessment of penaltythereon issued, pursuant to section 10(a), of the Act.??????????? Thiscase arose as a result of the service upon this Respondent by the Complainantof a Notification of Failure to Correct violations originally alleged incitations issued as a result of an inspection that took place on March 22, 1978which mandated abatement by June 5, 1978. The subsequent reinspection uponwhich this Notification of Failure to Correct was issued took place on July 28,1978. The items in question alleged violations of the standard set forth at 29CFR 1910.212(a)(3)(ii) in that the points of operations of three pieces ofmachinery were not guarded to prevent employees from having any part of theirbody in the danger zones during operating cycles. The machines involved werethe Verson press brake near the center of the west wall, the Dreis & Krumppress brake in the heavy manufacturing area and the Chicago Dreis & Krumplarge press brake in the heavy manufacturing area.??????????? Duringthe trial of this cause, the machines were variously described as the largepress brake, the large Dreis & Krump, the small Dreis & Krump and theVerson.??????????? Atimely notice of contest to the Notification of Failure to Correct was filed bythe Respondent and complaint and answer issued. Eventually, the case came totrial on Tuesday, March 20, 1979, in Columbus, Ohio.??????????? Atthe end of the case, the Judge asked the parties whether they were going tosubmit briefs, proposed findings of fact and conclusions of law. In responsethereto, Respondent?s counsel stated that he did not believe so and theComplainant?s counsel stated it would depend upon the receipt of the transcriptinasmuch as she was going to be out of the office starting May 1st. In view ofthe probability of no briefs being submitted, and inasmuch as the testimony wasfresh in the mind of the Judge and the resolution of the cause seemed to beclear, the Judge advised that if the parties so desired, he would deliver adecision from the bench and both parties agreeing thereto, proceeded so to do.??????????? Theissues for resolution were whether the point of operation of the three presseswere properly guarded, and if not, was there a feasible means of guarding thepoint of operation of these machines. In the event a violation was proven,another issue would be the amount of penalty assessed therefor.OPINION??????????? Theoriginal citation which was issued against the Respondent as a result of theinspection on March 22, 1978, alleged serious violations of two standardsinvolving ten machines and two other than serious violations concerningposting. Of the ten machines complained of, any violations connected with seventhereof, appeared to have been abated inasmuch as the re-inspection did notallege failure to correct any violations on those machines.??????????? Insofaras the other three machines were concerned, the proof of record adducedrevealed that Respondent did do some guarding, however, it failed to guard thepoint of operation of the machines. It guarded sides and back of some but thepoint of operation remained unguarded.??????????? Theonly witness testifying for the Secretary was the Compliance Officer. Hetestified concerning the machines, the lack of guarding, the type of guardingthat the machines contained and what he believed would be methods of abatingthe hazard.??????????? TheRespondent?s witnesses testified concerning the machines, the attempts to haveguarding utilized, the appraisals from companies that do guarding of suchmachines and, after hearing all of the testimony, it is the opinion of thistribunal that it is feasible, possible and appropriate for the large Dreis& Krump press to be guarded with a present sensing device. The testimonyindicates that the guarding will cost under $10,000.00 including the guard plusthe affixing of the same on the machine.??????????? Insofaras pullbacks and restraints are concerned, in my opinion, these would bedangerous because of the inability to move in the event metal was flying andbecause of the hazards, this tribunal is firmly convinced that the operatorswould never use them.??????????? Insofaras the two small machines are concerned, this tribunal has a doubt whether anyof the guards testified to by the Compliance Officer would remedy the hazard.After listening to all of the testimony, Respondent?s witnesses and theCompliance Officer, this tribunal remains unconvinced that in the extant stateof the art, the two small presses can have their points of operation guarded inthe same means that the large press can be guarded. Specifically, this tribunalis not convinced that in the present condition of the art, these machines couldbe guarded so as to conform to OSHA requirements so that they would not becited despite all of the expenditures for such purpose. Accordingly, in theopinion of this tribunal, the allegations of violation for the Verson press andthe small Dreis & Krump press must fall.??????????? TheRespondent must heed this caveat, however. In the event guarding for thesemachines is possible or becomes available and the state of the art proceeds towhere these two presses could be guarded, then in such case, it is incumbentupon Respondent, to acquire such guarding for those presses.??????????? Insofaras penalty is concerned, the perfect remedy in the opinion of this tribunal,would have been to suspend the operation of $1,700.00 of the $1,800.00 penaltyproposed by the Secretary for the failure to abate, on condition that theRespondent abated the hazard on the large press within 120 days of theconclusion of the hearing. The Commission in its wisdom however, has precludedthe use of the remedy of suspension of the operation of the penalty despite thefact that the Act gives the Commission power to use such other and furtherrelief as would enhance the furtherance of the Act. Secretary of Labor v.Biltrite Fixture Company, Inc., 74\/26\/c6 (8\/126) BNA OSHC 1:1687 CCH OSHD17,769.??????????? Inthe opinion of this tribunal, the perfect solution to this case would be tosuspend the operation of $1,700.00 of the penalty which would be used towardsthe abatement of the hazard. The Commission however, enunciated its opinion to thecontrary with strong and cogent reasoning.??????????? Accordingly,this tribunal finds that an appropriate penalty, in view of all elements ofsection 17(j) of the Act, amounts to $100.00. The undersigned has taken intoconsideration the fact that the injury history of this company is absent anyrecord of occurrence at the point of operation of any of the presses.??????????? Thelack of accident history, however, does not diminish or dilute the obligationof the Respondent to abate a hazard. It is the Secretary?s duty to prevent thefirst such accident. Leeway Motor Freight, Inc., v. the Secretary of Labor,511 F2d 864, (10th Circuit 1975); Ryder Truck Lines, Inc., v. Brennan,497 F2d 230, (5th Circuit 1974).??????????? Havingheard the testimony and observed the demeanor of the witnesses and havingconsidered the same, together with the citation, notification of proposedpenalty, notice of contest, pleadings, representations, stipulations andadmissions of the parties, it is concluded that the preponderance of thecredible evidence of record supports the followingFINDINGS OF FACT??????????? 1.The Respondent has employees who regularly and customarily receive, handle orotherwise work on goods that have been moved in interstate commerce or who areengaged in producing goods for interstate commerce.??????????? 2.The large Dreis & Krump press is approximately ten years old.??????????? 3.There have been no injuries or amputations at the point of operation of any ofthe machines in question in the past fifteen years.??????????? 4.Restraints and pullbacks would not be appropriate to the machines in questionas the operators would be in danger of moving steel and would not be able tomove rapidly enough to get out of the way using each of these items. Further,it is the opinion of this tribunal that because of the aforementioned fact, theoperators would refuse or evade or avoid using them.??????????? 5.Insofar as the large Dreis & Krump press is concerned, it is feasible touse a present sensing device to guard the machine and accordingly such guardingmust be utilized.??????????? 6. Atthe time of the re-inspection herein concerned, the large Dreis & Krumpmachine was not guarded.??????????? 7. Atthe time of the re-inspection herein concerned, the Verson press and the smallDreis & Krump were not guarded.??????????? 8.This tribunal is not convinced that the proof of record adduced provesfeasibility of guarding the Verson press or the small Dreis & Krump press.??????????? 9.The Respondent has sustained the burden of proof of showing infeasibility ofguarding the small presses given the extant state of the art and the specialtype of operations used with these machines.??????????? 10.The small presses are used approximately one-half hour each day; the largepress is used approximately five to six hours daily.??????????? 11.The penalty proposed for the failure to correct is excessive and an appropriatepenalty is $100.00.CONCLUSIONS OF LAW??????????? 1.The Respondent is an ?employer? within the meaning of section 3 (5) of the Actand the Commission has jurisdiction to hear and decide the within controversy.??????????? 2.The Respondent failed to correct a violation of the standard set forth at 29CFR 1910.212(a)(3)(ii) insofar as the Chicago Dreis & Krump large pressbrake is concerned, which constituted Item 2d of the original citation whichresulted from inspection of March 22, 1978. The failure to abate was discoveredon July 28, 1978.??????????? 3.The Respondent was not in violation insofar as items 2b and 2c are concerned(the Verson press brake and the small Dreis & Krump press brake).4. The penalty of $100.00 is appropriate for thefailure to correct affirmed herein.ORDER??????????? Inview of the foregoing, good cause appearing therefore, it is ORDERED THAT:??????????? 1.The Allegation by the Complainant that this Respondent failed to correct theviolation of Item 2d of the citation originally served on the 5th day of April1978, is AFFIRMED and a penalty of $100.00 is ASSESSED therefore.??????????? 2.The allegations of failure to correct, insofar as Items 2b and 2c areconcerned, are VACATED.?SO ORDERED.?DAVID G. ORINGER,JUDGE, OSHRCDated: June 14, 1979?New York, New York[1] Redesignated Rule92(a), 44 Fed. Reg. 70106, 70111 (1979) [to be codified in 29 C.F.R. ?2200.92(a)].[2] The standardprovides the following:?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.[3] 29 U.S.C. ?659(a).[4] The notificationof failure to correct violations also concerned a large Dreis & Krump pressbrake used in heavy manufacturing. Our review in this case does not involvethis press brake, however, because Vampco did not except to the judge?sdecision affirming this item of the notification and review was not directed onany issues involving it. See Commission Rule 92, note 1 supra.[5] Barrier guards,two-hand tripping devices, and electronic safety devices are examples ofguarding methods set forth in 29 C.F.R. ? 1910.212(a)(1).[6] Furthermore, thecompliance officer testified on rebuttal to Vampco?s case that the moveablegate guard is adjustable.[7] In his opiniongiven at the close of the hearing when both parties declined to file briefs,the judge explicitly held that proof of the feasibility of guarding is theSecretary?s burden. The holding does not appear as such in the subsequentwritten opinion but the rule of law?that the Secretary must provefeasibility?apparently governed the judge?s reasoning. His determinationscentral to his resolution were couched in the following terms:Afterlistening to all of the testimony, Respondent?s witnesses and the ComplianceOfficer, this tribunal remains unconvinced that in the extant state of the art,the two small presses can have their points of operation guarded . . ..Specifically, this tribunal is not convinced that in the present condition ofthe art, these machines could be guarded so as to conform to OSHA requirementsso that they would not be cited despite all of the expenditures for suchpurpose.Thejudge therefore specifically found as fact that ?[t]his tribunal is notconvinced that the proof of record adduced proves feasibility of guarding theVerson press or the small Dreis & Krump press.The judge additionally found that?[t]he Respondent has sustained the burden of proof of showing infeasibility ofguarding the small presses given the extant state of the art and the specialtype of operations used with these machines.? The judge did not, however,underpin this general finding with an analysis of the evidence on each of theguarding methods in terms of the employer?s defenses of impossibility andgreater hazard. See discussion infra.[8] This caseinvolves the question of whether Vampco failed to abate violations rather thanwhether Vampco violated the Act in the first instance. The Commission has held,however, that in a failure to abate proceeding the employer may defend byshowing that the condition for which it was originally cited was in factnonviolative of the Act. York Metal Finishing Co., 74 OSAHRC 19\/D2, 1BNA OSHC 1655, 1973?74 CCH OSHD ?17,633 (No. 245, 1974). Normally, therefore,these defenses that could have been raised to the original citation may also beraised in a failure to abate proceeding.”