SECRETARY OF LABOR,
Complainant,

v.

BRATTON FURNITURE MANUFACTURING
COMPANY,
Respondent.

OSHRC Docket No. 81-0799 S

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION

A decision of Administrative Law Judge John S. Patton is before the Commission pursuant to section 12(j), 29 U.S.C.§661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§651-678 ("the Act"). Judge Patton vacated item 6 of citation issued by the Secretary of Labor ("the Secretary") to Respondent, Bratton furniture Manufacturing Company ("Bratton").  Item 6 alleges a serious violation of the Act based on noncompliance with 29 C.F.R.§1910.213(r)(4) in the Bratton failed to guard the point of operation of a woodworking machine identified as a Porter No. 500 overhead router.[[1]]  The judge vacated this item on the ground that "the evidence reflects that a guard would not be feasible."  For the reason stated in this decision, we reverse the judge and affirm item 6 of the citation.

In a case arising under section 5(a)(2) of the Act, the Secretary does not have the burden of proving the feasibility of a means of abatement unless the express language of the standard, e.g., 29 C.F.R. §1910.95(b)(1), the occupational noise standard, place that burden on him; instead, the employer must prove an affirmative defense excusing its failure to comply with the cited standard, e.g., impossibility or the greater hazard defense.  Farmers Cooperative Grain & Supply Co., 82 OSAHRC ___, 10 BNA OSHC 2086, 1982 CCH OSHD ¶26,301 (No. 79-1177, 1982); Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC 60/A2, 9 BNA OSHC 1883, 1981 CCH OSHD ¶25,431 (No. 77-2778, 1981), appeal filed, No. 81-7493 (9th Cir. July 27, 1981).  Accordingly, the Commission has consistently held, with reference to 29 C.F.R. §1910.212(a)(3)(ii), another general machine guarding standard similar to the standard cited in this case, that the Secretary does not have the burden of proving a feasible method of guarding a machine's point operation. [[2]] E.g. American Luggage Works Inc., 82 OSAHRC 30/C7, 10 BNA OSHC 1678. 1982 CCH OSHD ¶26,072 (No. 77-893, 1982), appeal filed, No. 82-1572 (1st Cir. July 19, 1982).  To establish an impossibility defense, an employer must prove either that compliance with the standard would preclude performance of the required work or that compliance would be functionally impossible.  The employer must also show that alternative means of protection were unavailable.  American Luggage Works, Inc SUPRA; M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶23,330 (No.15094, 1979).  It is not a defense under the Act that compliance with a standard would be merely difficult, inconvenient or expensive.  See, e.g., George C. Christopher & Son, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1982 CCH OSHD ¶25, 956 (No. 76-647, 1982); National Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ¶25,743 (No. 76-4507, 1982).

On review in this case, the Secretary argues that Judge Patton erred to the extent that he placed on the Secretary the burden of proving the feasibility of guarding the router's point of operation or, alternatively, erred to the extent that the he recognized an affirmative defense of "impracticality."  Based on the precedent set forth above, we agree that the judge erred. [[3]]

The issue in this case, properly formulated, is whether Bratton established an impossibility defense.  We conclude that it did not.  When viewed in a light most favorable to Bratton, its evidence establishes at most that a ring guard does not provide totally effective protection and that a ring guard precludes the performance of some but not all operations on the router.  However, neither the fact that a guard is not totally effective nor the fact that a guard cannot be used for all operation provides a sufficient basis for sustaining an impossibility defense.  See American Luggage Works, Inc., supra; A & S Millworks & Rentals, 77 OSAHRC 213/A2, 6 BNA OSHC 1212, 1977-78 CCH OSHD  ¶22, 425 (No. 15052, 1977).  As we states recently in Farmers Cooperative Grain & Supply Co., supra, "Even in full compliance with a standard cannot be achieved, an employer must nevertheless protect its employees to the extent possible against the hazards to which standards are directed."  10 BNA OSHC AT 2089, 1982 CCH OSHD AT P.33,263.

We reject Bratton's impossibility defense for another reason as well.  As indicated, in order to sustain an impossibility defense, the employer must show that alternative means of protection were unavailable.  Here, however, the record establishes the contrary, i.e., that there was an alternative means of protection that could have been but was not used.  The compliance officer testified that a "jig" is a device used to hold the material being operated on in a fixed position while keeping the operator out of the zone of danger.  He indicated that the jig is an acceptable alternative to a guard when use of the guard is not "practical."[[4]]   However, he also testified that, during the last operation of the machine prior to his inspection, the router was used without either a guard or a jig.  Thus, although there was an alternative means of protecting the machine operator, that means was not used.

We further conclude that the record sustains the violation alleged in item 6, including the allegation that the violation was "serious" as defined at section 17(k) of the Act, 29 U.S.C. §666(j).  As stated, the router was used while the ring guard was removed and no other from of point-of-operation guarding was provided.  The operator was thereby exposed to the hazard of possible severe lacerations or amputation of a finger if he contacted  the small, high-speed, rotating blade at the router's point of operation.  Bratton either knew or should have known that the router was operated without the guard and without using jig.

Accordingly, because the evidence sustains the alleged violation and Bratton failed to establish its impossibility defense, we reverse Judge Pattom's decision and order to the extent that it vacated item 6 of citation no. 1.  The citation item is affirmed.   The Secretary proposed that a $60 penalty be assessed for this violation.   Having considered the penalty assessment criteria set forth in section 17(j) of the Act, 29 U.S.C. § 661(i), with particular emphasis on appropriate.  A penalty of $60 is therefore assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

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