Docket No. 1885

PACCAR, INC.

OSHRC Docket No. 1885

Occupational Safety and Health Review Commission

May 1, 1975

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The issue in this case is whether Judge Garl Watkins erred in vacating a citation issued to Respondent (Paccar) pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). By the citation, Complainant (Labor) charged that Paccar had committed a serious violation of the safety standard at 29 C.F.R. 1910.212(a)(1) n1 by failing to adequately guard one tank roll machine and eight press brakes. In vacating the citation, the Judge found that each machine in fact had at least one guard, and held that this was sufficient to constitute compliance with the standard. He also held that the citation should be vacated due to the combination of vagueness of the standard, lack of specificity in the citation and complaint, and the failure of the citation to contain a specific date by which the alleged violation was to be abated. We have reviewed the record. For the reasons which follow, we affirm the Judge's disposition with respect to the tank roll machine but reverse with respect to the press brakes.

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n1 This standard states:

One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

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The facts are these. Paccar operates a truck manufacturing facility, which utilizes a number of machines to form metal parts. Included among these are the tank roll machine and the press brakes which are the subject of the citation.

The tank roll machine is used to form flat metal sheets into a cylindrical shape. In normal operation, two employees stand on the input side of the machine and feed the metal sheet between two steel rollers by hand. The mechanical power transmission apparatus of this machine was guarded. A trip bar ran across the front of the machine for the entire length of the rollers. Five to ten pounds of force on this bar would cause the rollers to disengage and [*3] the pressure between them to be released. On one occasion prior to the installation of the trip bar, an employee's hand was caught between the rollers resulting in a disabling injury.

The press brakes are used to shape metal by the action of two dies against each other. A metal plate to be shaped is held by hand against the lower die, which is fixed in position. Upon the operator pressing a foot pedal, the upper die descends. The time required for the upper die to fully descend is about one second. If the foot pedal is released, the movement of the upper die ceases almost immediately. The size of the metal plates formed with the press brakes ranged from several feet to several inches. The particular press brakes at issue were used for custom work as opposed to production work. They vary in size with respect to the length of the dies. As with the tank roll machine, the power transmission apparatus is guarded, but there is nothing to prevent the operator from having his finger or hand in the point of operation. In the ten years since the press brakes have been installed, Paccar has experienced no injuries at their point of operation.

Labor contends that the standard is violated [*4] by the lack of point of operation guards. Paccar argues that it has in fact complied with the standard because it did have "one or more" guards on each machine, specifically pointing to the guards covering the power transmission apparatus, and to the trip bar on the tank roll machine. It argues that, if the standard is read to require more than it has done, it is unenforceably vague. Paccar also contends that the citation lacked the particularity required by section 9(a) of the Act because it did not specifically mention that the alleged violation was the lack of point of operation guards. n2

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n2 The citation stated the alleged violation as follows:

One or more methods of machine guarding to protect employees was not provided on the (tank roll machine and press brakes).

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The latter contention is without merit. The manner in which the case was tried makes it clear that the parties understood the nature of the alleged violation to be a lack of point of operation guards. Paccar did not object to Labor's [*5] statement at the hearing that this was the issue, and vigorously defended on this basis. Indeed, Paccar does not argue that it did not have a fair opportunity to be heard on this issue; it claims only that the lack of particularity in the citation itself renders it fatally defective. So long as an issue is fairly tried, however, it is unimportant that it was not squarely raised by the pleadings. Fed R. Civ. P. 15(b); National Realty & Construction Co., Inc. v. OSHRC, 439 F.2d 1257 (D.C. Cir., 1973); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir., 1974).

We also find no merit in the claim that the standard is unenforceably vague of interpreted to require point of operation guards. The standard specifically mentions point of operation guarding as one of the methods of guarding to be employed. Furthermore, another subsection of the same standard, 29 C.F.R. 1910.212(a)(3)(iv), specifies power presses n3 and forming rolls as machines which generally require point of operation guarding. Thus, the standard explicitly requires point of operation guards on the types of machines here involved.

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n3 A press brake is a type of power press. Irvington Moore, Division of U.S. Natural Resources, Inc.,

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Nor with respect to the press brakes do we find merit in Paccar's argument that it complied with the standard by installing at least one guard on each machine. The guards Paccar relies on for the brakes are those used to guard their mechanical power transmission apparatus. But guarding for such apparatus is regulated by section 1910.219, a different subject than that covered by the citation and the cited standard.

The press brakes contained no point of operation guards and were therefore in violation of the standard. As to the tank roll machine, Paccar argues that the trip bar is a device to protect its employees against the point of operation hazard, and is thus sufficient under the standard. Labor contends that the trip bar will not prevent an accident, but only provides a means by which its severity can be lessened. The standard, however, does not specify any particular type of guarding method; it merely requires [*7] some means of protection against the point of operation hazard. The trip bar does provide some protection, and is a recognized means of guarding such a machine. n4 Accordingly, we hold that the tank roll machine was in compliance with the standard. See Brennan v. OSHRC (Pearl Steel Erection Co.), 488 F.2d 337 (5th Cir., 1973).

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n4 National Safety Council, Accident Prevention Manual for Industrial Operations, p. 747 (6th Ed., 1969).

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Paccar also challenges the classification of the violation as serious. It points to its record of no accidents at the point of operation of the press brakes in support of this argument. So long as an accident is possible, however, a violation is serious if the accident would likely cause death or serious harm. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318, BNA 1 OSHC 1219, CCH E.S.H.G. para. 15,687 (1973). Since the hands of employees, at least in some operations, are within inches of the point of operation of the press brakes an accident is clearly possible. Any part [*8] of the body caught in the point of operation would be crushed or amputated. Thus, the violation is serious.

Paccar also claims that the citation is void because it fails to establish a date certain by which the violation must be abated. n5 This is said to violate Section 9(a) of the Act which requires, inter alia, that a citation fix a reasonable time for abatement of a violation. We perceive no logical reason why a defect in the abatement requirement specified in a citation should affect the underlying validity of the citation. The abatement requirement may be challenged before this Commission if an employer thinks it is unreasonable. Eastern Knitting Mills, Inc., 13 OSAHRC 176, 1 OSHC 1677, CCH E.S.H.G. para 17,691 (1974).

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n5 The citation specified that Paccar submit to Labor a plan of abatement in 30 days, in that a final abatement date would be established following submission of this plan.

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Paccar has denied that the abatement requirement in the citation is reasonable. Labor presented no evidence establishing [*9] the utility or necessity for the submission of a plan before a final abatement date can be set. Labor's justification for this requirement, set forth in its brief, is that abatement will be complicated due to the fact that the press brakes are used in different ways, and a single type of guard might not be suitable for all applications. Paccar's evidence tended to substantiate this, and indicated that abatement will require a certain degree of experimentation with different types of guards. From the evidence of record, we cannot conclude that the submission of a plan prior to the start of abatement is necessary or appropriate. Accordingly, we will modify the citation to establish a reasonable, fixed abatement date.

Both Labor and Paccar agree that abatement will be somewhat complicated. Paccar appears to be proceeding on the assumption that barriers guards are the only feasible means of abatement which will satisfy the standard. We have indicated that other means, such as guarding by position, may be feasible. Garrison & Associates, Inc., Nevertheless, Paccar should be accorded a reasonable amount of time to [*10] abate by the means of its choice, and to experiment to determine the most suitable means. All things considered, we think that an abatement period of 120 days is reasonable.

We turn now to the assessment of an appropriate penalty. Despite Paccar's favorable safety history with the press brakes, the gravity of the violation is moderately high due to the number of machines involved and the potentially serious consequences of an injury. Paccar is a large employer. It good faith is demonstrated by an effective safety program, and it has no prior history of violations under the Act. On balance, we conclude that a penalty of $500 is appropriate.

Accordingly, the Judge's decision is reversed. The citation is modified to establish an abatement date of 120 days from the date of this decision. As so modified, the citation is affirmed with respect to the press brakes and vacated with respect to the tank roll machine. A penalty of $500 is assessed. It is so ORDERED.

[The Judge's decision referred to herein follows]

WATKINS, JUDGE: The heading of the case is changed to conform to required procedure and the true facts. Complainant is named as required by Rule of Procedure [*11] 31(a).

Respondent was named as Kenworth Motor Truck Company. In its Notice of Contest on the letterhead of "Paccar, Inc.," Respondent referred to the Citation issued "to our Kenworth Motor Truck Company division." In its answer, counsel appeared for Paccar, Inc., denying the existence of Kenworth Motor Truck Company as a corporation and stating that it is an unincorporated division of Paccar, Inc., a Delaware corporation. The same statement was made at the outset of the hearing. The heading of the case is accordingly corrected.

In this enforcement proceeding alleging a violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 651, et seq., the only question is whether Respondent was in violation of 29 CFR 1910.212(a)(1), imposing "general requirements" for all machine guarding, by failing on September 25 and 26, 1972 to use some method to guard one tank roll machine and eight press brakes at its Kenworth Motor Truck division at Seattle, Washington. What method for guarding and against what dangers presented by the machines are not specified in the pleadings.

Respondent contends the Secretary's regulation and the Citation issued under it [*12] are fatally defective because they do not specify what is to be guarded and how; and thus do not meet the requirement of particularity of Section 9(a) of the Act. Respondent also claims that, in any event, it has complied with the standard alleged to have been violated.

Another defense is the failure of the Secretary to comply with another provision of Section 9(a) of the Act, requiring the Citation to "fix a reasonable time for the abatement" of the alleged violation. The Secretary fails to tell Respondent what it must do to abate and then fixes no time at all. Rather there is an attempt to impose on Respondent a duty to set a date; the Citation stating it must "submit a time phased plan for machine guarding techniques to be used on the equipment. Following submission of the plan, the final abatement date will be established." Such submission of Respondent's plan for machine guarding techniques and the date it proposes to use them is stated to be required on December 4, 1972.

As the result of a routine inspection of Respondent's Kenworth Motor Truck Company division in Seattle, Washington on September 25 and 26, 1972, a Citation for Serious Violation was issued November [*13] 3, 1972, alleging the Respondent was in violation of 29 CFR 1910.212(a)(1) for failure to provide "One or more methods of machine guarding to protect employees . . . ." from the hazards of one tank roll machine and ten press brakes. The exact language of the allegations of the Citation (as amended), the Complaint of the Secretary and the regulation in question are set forth in the Appendix to this decision and by reference made a part hereof.

On November 20, 1972, the Citation was amended. The only changes were that the press brakes were assigned different numbers and that eight were listed instead of the ten in the original Citation. The purpose of the amendment was stated at the hearing to be solely for the purpose of assigning the correct numbers to the press brakes. No reason was given for the elimination of two. The Secretary proposed a penalty of $600.00 for the violation.

On December 4, 1972, Respondent notified the Area Director of the Occupational Safety and Health Administration, United States Department of Labor, of its intention to contest the Citation here at issue. The language of the Secretary's Complaint in alleging the violation is, for our purposes, identical [*14] to that of the Citation. Respondent answered and hearing was held in Seattle, Washington on April 3, 1973. The file reflects full compliance with all procedural requirements for notice to additional parties and none appeared.

There is no conflict in the evidence on any material fact in the case. Respondent manufactures Kenworth trucks at its plant in Seattle. The "offending" machines were in use in that plant on September 25 and 26, 1972.

The Secretary introduced nine pictures as exhibits and the Respondent eight, showing the various pieces of equipment from various angles or in stages of operation. The tank roll machine is shown in several. All the press brakes are shown in the Secretary's exhibits and the evidence is undisputed their method of operation is the same, although some are larger than others.

A tank roll machine rolls flat steel plate into cylindrical form so that it then may be welded to make gasoline tanks for the trucks. The press brakes, by an extremely slow movement of the upper die of each into the lower die, bend pieces of metal to desired shapes and sizes.

The pictures in evidence demonstrate the use of the machines quite adequately. Even [*15] without these exhibits, it would serve no useful purpose to lengthen this decision by a detailed description of the operation of the tank roll machine and press brakes.

The thrust of the Secretary's proof and argument is there was inadequate guarding of the point of operation of both types of machines. Respondent contends the guarding was adequate by way of numerous and elaborate safety devices on both; and in any event, no violation of section 5(a)(2) of the Act was alleged or proved.

Respondent contends -- and correctly so -- that it complies as a matter of law with 29 CFR 1910.212(a)(1) by having any one guard on its machines. The evidence is undisputed that all machines had at least one guard contemplated by the standard.

The regulation states "one or more methods of machine guarding shall be provided to protect the operator . . . . from hazards such as those created by . . . . rotating parts . . . ." All machines had rotating parts protected by machine guards.

The Respondent is correct in his contention but we do not choose to rest our decision on this narrow ground. We hold that the combination of an unenforceably vague "standard" and equally vague Citation and [*16] Complaint; and the complete failure to set not only a "reasonable time," but any time, for abatement are sufficient in combination to defeat the action.

It becomes necessary to examine the language of the statute, the Secretary's regulations and the Citation in some detail. The Act provides:

Sec. 5.(a) Each employer --

(2) shall comply with occupational safety and health standards promulgated under this Act."

Section 9(a) provides in part:

Sec. 9.(a) . . . . Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation.

29 CFR 1912.212(a)(1) is one of the "General Requirements For All Machines." It is broad, somewhat vague and, in our view, principally introductory. However, it does direct the use of machine guards in this language . . . . "One or more methods of machine guarding shall be provided . . . ." The full text of the Section is:

29 CFR 1910.212:

(a) Machine guarding -- (1) Types of guarding. One or more [*17] methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

Based on this regulation, the Secretary alleged that as to Respondent "One or more methods of machine guarding to protect employees was not provided . . . ." As to a "reasonable time for the abatement," the allegation is:

Employer must submit by December 4, 1972 the time phased plan for machine guarding techniques to be used on the equipment. Following submission of the plan, the final abatement date will be established.

It should be noted that December 4, 1972 is not the date on which the alleged violation must be corrected, but rather the date on which the employer (Respondent) is required to submit a "time phased plan for machine guarding techniques to be used on the equipment."

A reasonable interpretation of the quoted portion of Section 9 of the Act leads to the inevitable conclusion that to charge a vio lation of Section 5(a)(2), a Citation [*18] must tell an employer with ordinary intelligence precisely (or "with particularity")

(1) how he has failed to comply with occupational safety and health standards,

(2) what he must do to correct the situation or to "abate the violation", and

(3) when he must abate it.

The first and third requirements are expressly mandated by the statute. The second is an indispensable adjunct -- if not a part -- of both. Here the Citation, the Complaint and the proof fail in all three particulars. Further, the standard on which the Citation is based makes it impossible for it to comply with these particulars. A brief further discussion of each would seem to be in order.

It should be noted in passing we decline to base the decision on the deficiency of the Citation in any one of the three particulars, although a decision on any one would be proper. Rather we prefer to ground the decision on the failure to meet all three requirements.

Nor are we tempted to accept the invitation of the Secretary to begin our reasoning on an interpretation of 29 CFR 1910.217, where press brakes are excluded if they qualify as "mechanical power presses"; as they do on the evidence in this record. [*19]

To determine what act or omission may be charged, one must examine the regulation to determine what is required. Respondent must provide "one or more methods of machine guarding."

For what purpose must this be done? The answer is to "protect the operator and other employees in the machine area from hazards such as those created by"

(1) point of operation,

(2) ingoing nip points,

(3) Rotating parts,

(4) flying chips and sparks, or

(5) any other hazard which might be present, because the expression "such as" is used.

Respondent had no way of knowing with what it was charged. No further elaboration is necessary to show the regulation and the Citation following its language do not "describe with particularity the nature of the violation" (Sec. 9(a)).

What must the Respondent do to correct the situation? "Examples" are:

(1) barrier guards,

(2) two-hand tripping devices,

(3) electronic safety devices,

(4) "etc."

Again, no further explanation is necessary to show neither the Respondent nor anyone else in his situation had any way of knowing in what manner he should correct the unknown violation of an unenforceable standard.

Nor does the evidence, pointed toward [*20] showing the absence of point of operation guarding, improve the Secretary's position. Proof of the absence of a guard not required by regulation or alleged in the Citation does not show a violation of the Act.

When does the Secretary require that the violation be abated? Or in the language of the statute, did the Secretary "fix a reasonable time for the abatement of the violation"? (Sec. 9(a))

Here the Secretary makes a surprising argument that the only question to be decided is whether the time is unreasonable. The difficulty with that position is that no time can be held reasonable or unreasonable until there is a time. Here no time was fixed.

It seems clear that the language "fix a resonable time for abatement of the violation" means the Secretary must

(1) fix a time, and

(2) the time must be reasonable.

No contention was made at the hearing that the language regarding abatement has other than its clear meaning. The Secretary set no time at all for correction of the alleged violation. Rather he told the Respondent to come back on December 4, 1972 and at that time "submit . . . . the time phased plan for machine guarding techniques to be used on the equipment. Following [*21] submission of the plan, the final abatement date will be established."

Respondent argues that by this language the Secretary is imposing on an employer the duty of setting an abatement date -- and is thus acting in excess of his statutory authority. This is true, but stated differently, and possibly more importantly for this decision, the Secretary failed to comply with the statutory mandate to "fix a reasonable time for abatement."

The Citation and proposed penalty must be vacated and the Complaint of the Complainant dismissed.

FINDINGS OF FACT

Respondent, Paccar, Inc., is a Delaware corporation and on September 25 and 26, 1972, operated its Kenworth Motor Truck Company Division in Seattle, Washington, where it maintained a work place and place of employment and manufactured Kenworth Motor trucks. In this process its employees operated one tank roll machine and eight press brakes.

On the dates mentioned, the work place of Respondent was inspected by a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor, as a result of which an amended Citation for Serious Violation was issued by Complainant on November [*22] 20, 1972 alleging Respondent was in violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 and particularly of 29 CFR 1910.212(a)(1) for failing to provide one or more methods of machine guarding to protect employees from the hazards of the machinery mentioned.

III

The regulation alleged, 29 CFR 1910.212(a)(1) is general, vague and indefinite to the point it did not require as an allegation of its violation that the Citation describe with particularity the nature of the violation. The Citation in fact did not so describe it. The Citation did not fix a time for abatement of the alleged violation.

A combination of the vague, general and indefinite nature of 29 CFR 1910.212(a)(1), the Citation issued to Respondent on November 20, 1972 in its allegation that "One or more methods of machine guarding to protect employees was not provided on the following equipment:" and the fact that the Citation did not fix a reasonable time for abatement of the alleged violation and in fact did not fix a time for abatement, produced a situation where a reasonably intelligent person in the position of Respondent would not know (1) in what manner it was alleged [*23] it failed to comply with an occupational safety and health standard enacted under the provisions of the Occupational Safety and Health Act of 1970, or (2) what steps or acts could be taken to correct or abate any such alleged violation, or (3) when any such alleged violation must be abated or corrected.

Machine guards were to protect employees from rotating parts of all machines mentioned herein.

Based upon the foregoing and upon all facts admitted, stipulated or provided by uncontroverted substantial credible evidence, the undersigned hereby makes the following

CONCLUSIONS OF LAW

On September 25 and 26, 1972 Respondent was engaged in a business affecting commerce within the meaning of the Occupational Safety and Halth Act of 1970 and was thus an employer within the purview of the Act. The Commission has jurisdiction of the parties and the subject matter of this action.

The general, vague and indefinite nature of 29 CFR 1910.212(a)(1) and the Citation issued to Respondent on November 20, 1972, together with the failure of the Citation to fix a reasonable time for correction or abatement of the violation alleged in the Citation, or to fix any time at all, makes such [*24] Citation unenforceable against the Respondent. No evidence in the record has the effect of correcting any deficiency of proof, nor could it in view of the language of the Citation and the regulation cited.

III

The Respondent is entitled to an Order vacating the Citation for Serious Violation issued November 20, 1972 and the proposed penalty of the Secretary, as well as dismissing the Complaint of the Complainant.

ORDER

Based upon the foregoing, It is hereby ORDERED:

That the Citation for Serious Violation "No. 1 of 2 Amended" issued by the complainant to the Respondent on November 20, 1972 and naming therein Kenworth Motor Truck Company, 8801 E. Marginal Way South, Seattle, Washington; and the penalty proposed by the Secretary for such alleged violation in the amount of $600.00 be and the same hereby are Vacated.

It is further ORDERED that the Complaint of the Complainant be and the same hereby is dismissed with prejudice.

APPENDIX TO DECISION AND ORDER

Secretary of Labor v. Paccar, Inc.

1. CITATION FOR SERIOUS VIOLATION

Citation number: 1 of 2 Amended; Date issued: November 20, 1972; Employer: Kenworth Motor Truck Company; Address: (street) 8801 E. [*25] Marginal Way South, (city) Seattle, (state) Washington, (zip) 98124.

An inspection of a workplace under your ownership, operation, or control located at Seattle, Washington and described as follows: Truck Manufacturer, has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1910 -- 1910.212(a)(1) -- September 25, 26, 1972; One or more methods of machine guarding to protect employees was not provided on the following equipment: 1. Tank Roll Machine. 2. Brake Presses numbers: a. KW 52099; b. KW 5224; c. KW 5232; d. KW 5235; e. KW 6148; f. KW 6864; g. KW 6966; h. KW 7299 -- December 4, 1972; Employer must submit by December 4, 1972 the time phased plan for machine guarding techniques to be used on the equipment. Following submission of the plan, the final abatement date will be established.

This amended Citation superseded the original Citation issued November 3, 1972. The only difference is that the brake [*26] presses are numbered differently in the amended Citation and there are eight of them, while there were ten in the original. The only reason stated for the amendment was to number the brake presses correctly. No reason is given for the omission of two brake presses from the amended Citation.

2. The proposed penalty is $600.00.

3. The Complaint: The only allegation of a violation of a standard is in paragraph IV and is as follows:

IV.

On September 25 and 26, 1972, at the aforesaid place of business and employment, the Respondent violated the safety and health regulations in that one or more methods of machine guarding was not provided on the following equipment; contrary to 29 C.F.R. 1910.212(a)(1):

1. Tank Poll Machine

2. Brake Presses numbers

a. KW 5209

b. KW 5224

c. KW 5232

d. KW 5235

e. KW 6148

f. KW 6864

g. KW 6966

h. KW 7299

There is no allegation about what should be done to correct the absence of "one or more methods of machine guarding."

Allegations regarding the alleged abatement date are in paragraph 6 and are:

VI.

The abatement date for the violation alleged in paragraphs IV above, and as prescribed in the Amended Citation for Serious [*27] Violation No. 1 is: December 4, 1972. Employer must submit by December 4, 1972, the time phased plan for machine guarding techniques to be used on the equipment. Following submission of the plan, the final abatement date will be established. Such abatement date was and is considered a reasonable time for the correction and abatement of the above violation under the aforesaid existing conditions disclosed by the inspector, and it constitutes the shortest practical time for abatement.

4. The standard alleged to have been violated is:

Subpart 0. Machinery and Machine Guarding

1910.212 -- General requirements for all machines. (a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.