UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2349
AMERICAN PACKAGE COMPANY, INC.,
Respondent.

October 17, 1980

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). A decision of Administrative Law Judge Abraham Gold is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i). In that decision, the judge, among other things, affirmed items a, d, and e of a serious citation issued to Respondent, American Package Company, Inc., following an inspection of its premises. Each item alleges noncompliance with the standard at 29 C.F.R. § 1910.212(a)(3)(ii). The judge assessed a penalty of $250.[1] Respondent petitioned for review of these items, and Commissioner Barnako granted Respondent’s petition.[2] The judge’s decision is affirmed in part and vacated in part.

Respondent, a paper box manufacturer, was cited for noncompliance with 29 C.F.R. § 1910.212(a)(3)(ii)[3] in that it allegedly failed to guard the points of operation of eight wrapping machines (‘wrappers’) and two paper cutters. In order to operate a wrapper, the operator, who sits approximately one and one half feet from the point of operation, receives a cardboard blank from his or her right and a glued wrapper from a conveyor belt on his or her left. The operator places the blank on the glued paper and puts them on a wooden machine form. The operator then trips a foot pedal that causes a ram to descend onto the form block with force sufficient to cause a crushing injury. The point of operation on the wrappers is 5 inches wide and 8 inches long, the dimensions of the wooden form block, and approximately 10 inches high. The wrapper is equipped with a safety switch that can stop the machine at any point in the cycle.

The two paper cutters are of the guillotine type and are equipped with two-hand tripping devices. By raising a lever on the left side of the cutter and lowering a lever on the right, the operator causes a blade to descend. The blade is approximately two feet long. The operator’s hands do not enter the point of operation if the two-hand tripping mechanism is used properly. The compliance officer testified that it was possible, however, to circumvent the two-hand tripping mechanism by tying the left lever in the raised position, and thus operate the cutter solely by lowering the right lever. This modification would allow the operator to have his or her free hand within 2 inches of the point of operation and would expose the operator to the hazard of amputation of the fingers or hand. The handles on Respondent’s machines were not modified in any way at the time of the inspection in this case, and there was nothing to indicate that they had ever been modified or ‘tied up.’

The judge affirmed the citation as to both the wrappers and the paper cutters. He noted the testimony of the compliance officer that the eight handfed wrapping machines had no guards that would prevent the machine operators from placing their fingers within the point of operation. He also observed that the two-hand tripping devices on the paper cutters were ‘so constructed that it was possible to tie up the left hand lever and thereby leave the operator’s left hand free to penetrate the danger zone during the operation.’ After making these factual findings, the judge concluded that the ‘record establishes a violation of the cited standard.’ He found the violations to be serious and assessed a penalty of $250.

On review, Respondent argues that the wrappers do not expose their operators to injury during the operating cycle. Citing to Ace Supply, Inc., 74 OSAHRC 75/D2, 2 BNA OSHC 3194 1974–75 CCH OSHD ¶ 18,625 (No. 5475, 1974), an unreviewed judge’s decision, Respondent contends that because of the required use and location of the foot pedal the operator could not lean over the work table, place his or her hands under the ram, and activate the machine at the same time. Respondent argues that there is no reason why the operator would insert his or her hand into the point of operation, nor indication as to how the operator might do so inadvertently. Respondent concludes that ‘[s]hort of self-infliction, there is no way that an operator can expose any part of his body to the danger zone of the wrapping machine.’ In addition, Respondent asserts that even if the wrappers presented a hazard within the meaning of 29 C.F.R. § 1910.212(a)(3)(ii), any further guarding would prevent operation of the machine and render it obsolete. This factor, coupled with a history of no worker injury, establishes, according to Respondent, the affirmative defense of impossibility of compliance.

In regard to the paper cutters, Respondent contends that 29 C.F.R. § 1910.212(a)(1)[4] specifically lists two-handed tripping devices as an acceptable method of guarding. Respondent argues that the two-handed tripping devices were being used properly, that the Secretary conceded as much, and, therefore that any modification of the machines to defeat the purpose of the two-hand tripping device amounts to speculation. In the absence of any evidence of modification or alteration, Respondent argues that the judge’s finding of a violation should be reversed in the face of the explicit language of the standard. In the event the paper cutters are found in violation of the Act, Respondent contends that knowledge of the violation cannot be imputed to it because the applicable safety standard clearly states that two-hand tripping devices comply with the Act. Respondent cites as support the unreviewed judge’s decision in McMillan Book Co., 75 OSAHRC 65/F12, 3 BNA OSHC 1380, 1974–75 CCH OSHD ¶ 19,635 (No. 6696, 1975).

In conclusion, Respondent argues that the failure of the judge to set forth the ‘reasons or basis’ for findings and conclusions ‘on all material issues of fact, law, or discretion presented on the record’ as required by the Administrative Procedure Act (‘APA’), 5 U.S.C. § 557, requires reversal. The Secretary of Labor did not file a brief, but indicated by letter that he intended to rely on the decision of the judge.

At the outset, we agree with Respondent that the judge’s decision failed to comply with the APA. Section 557(c) of the APA requires that the judge’s decision include:

(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.

`The Commission need not, however, resort to the extreme remedy requested by Respondent. The Commission has the ultimate authority to make findings of fact, Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), and where, as here, the record is sufficiently detailed and credibility is not an issue, see Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ¶ 23,033 (No. 16162, 1978). The Commission can make those findings without remanding the case to the judge. Consistent with this authority and responsibility, we also give our ‘reasons or basis’ for these findings.

In order to prove a violation of 29 C.F.R. § 1910.212(a)(3)(ii), the Secretary must demonstrate that the point of operation is unguarded and that, as a result, employees are exposed to injury. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD ¶22,909 (No. 12523, 1978). Here, the wrapper operators are seated 1 ½ feet from the point of operation. The upper ram descends with force sufficient to cause a crushing injury. Respondent argues that such an occurrence is nearly impossible because it would require the operator to reach over deliberately and hold his or her hand underneath the descending ram. Nevertheless, it is possible for the operator’s hand to be in the point of operation and receive a crushing injury. Respondent’s contention that it is impossible for the operator to place his or her hands into the point of operation and activate the machine at the same time is without merit. The evidence demonstrates that the machine is initially activated by depressing a foot-operated tripping device. The machine is also equipped with a hand-operated ‘safety stop’ which can stop the machine at any point during its cycle. Once the foot pedal is depressed the wrapping machine completes an operating cycle unless the ‘safety stop’ is operated by hand. Once activated, the release of the pedal does not, by itself, cause the machine to stop. Thus, an operator could step on the pedal to engage the wrapper and then lean over and insert his or her hand into the point of operation. On these facts we conclude that the points of operation of the wrapping machines exposed the operations to injury within the meaning of the cited standard.

Respondent also claims that it is impossible to comply with the standard.[5] Respondent couches its argument in terms of impossibility of compliance, but actually argues that compliance with the standard would make it impossible to operate the wrappers, thus arguing impossibility of performance. In order to establish the affirmative defense of impossibility of performance, Respondent must show that (1) compliance with the standard would preclude performance of required work and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23,330 (No. 15094, 1979). Respondent’s general manager and a union representative testified that the wrapper could not be operated with the suggested guarding, but Respondent did not consider making any modification to the machines. Respondent’s vice-president stated on the record that the Area Director for the Occupational Safety and Health Administration stated that he could make no recommendations as to guarding other than to ‘completely redesign’ the machines. The Commission has not precluded requiring the redesign of machines in order to bring them into compliance with the Act. See F.H. Lawson Co., 80 OSAHRC ——, 8 BNA OSHC 1063, 1980 CCH OSHD ¶2 4, 277 (No. 12883, 1980) (defense of impossibility failed where Respondent made no attempt to find an appropriate combination of guarding techniques and operating procedures.) In the absence of any showing of attempts to place guards on the machines as presently designed, or to redesign the machines to install guards, we conclude that Respondent has failed to prove the defense of impossibility.

Respondent’s paper cutters are provided with two-hand tripping devices that, if used properly, prevent ‘the operator from having any part of his body in the danger zone during the operating cycle.’ In Kroehler Mfg. Co., 78 OSAHRC 88/B9, 6 BNA OSHC 2045, 1978 CCH OSHD ¶ 23,110 (No. 76–2120, 1978), the Commission recognized the efficacy of two-hand tripping devices, but held that a two-hand tripping device must meet the performance criterion of 29 C.F.R. § 1910.212(a)(3)(ii). In MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD ¶ 23,102 (No. 76–3113, 1978), the Commission found that the operator of a guillotine paper cutter could engage the left-hand lever of a tow-hand tripping device with his knee, thereby leaving his left hand free to enter the point of operation during the operating cycle. For this reason, the Commission concluded that the two-hand tripping device had a design deficiency, i.e., it was not ‘so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle’ within the meaning of 29 C.F.R. § 1910.212(a)(3)(ii). In this case, however, the design and construction of the two-hand tripping device does meet the performance criteria of 29 C.F.R. § 1910.212(a)(3)(ii). There is also no evidence here that the guarding was circumvented by Respondent or its employees. Compare Long Mfg. Co., N.C., 76 OSAHRC 50/D6, 4 BNA OSHC 1154, 1975–76 CCH OSHD ¶ 20,658 (No. 9994, 1976), aff’d, 554 F.2d 903 (8th Cir. 1977). We therefore cannot conclude that Respondent has violated the Act.

In considering the penalty assessment criteria set out at section 17(j) of the Act, 29 U.S.C. § 666(i), we note the good safety record of Respondent. In addition, although there was a violation of the Act, it was of low gravity because the probability of an accident was low. We conclude that a penalty of $200 is appropriate.

Accordingly, that part of citation 3 alleging a failure by Respondent to provide point of operation guarding for its eight wrapping machines as required by 29 C.F.R. § 1910.212(a)(3)(ii), is affirmed. That portion of citation 3 alleging that Respondent failed to properly guard its paper cutters is vacated. A penalty of $200 is assessed.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: OCT 17, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2349
AMERICAN PACKAGE COMPANY, INC.,
Respondent.

February 24, 1977

Appearances:

Anthony Ginetto, Esq., for Complainant

Martin Kofman, pro se, for Respondent

DECISION AND ORDER

On May 10, 1976, Respondent was issued three citations for six nonserious and two serious violations. Respondent filed a notice of intend to contest all charges. On September 29, 1976, the case was heard at New York City pursuant to Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. § 659(c).

Respondent is a New York corporation engaging in the manufacture of paper boxes; many materials and supplies used by Respondent were manufactured outside the State of New York; hence, Respondent engages in a business affecting commerce, within the meaning of Sections 3(3) and 3 (5) of the Act. In light of the foregoing, it is found that jurisdiction over the parties and the subject matter is vested in the Commission.

The parties stipulated at trial (Tr. 5–8) that the penalty proposed for nonserious items 1, 3, and 4 of citation #1 is reduced from $40 each to $10 each, the proposal of no penalty for the other three nonserious items remaining in effect; that the abatement date for nonserious item 4 is extended to October 30, 1976; that the penalty proposed for serious citation #2 is reduced from $550 to $220; and that based on those concessions of Complainant the notice of contest as to citations #1 and #2 is withdrawn by Respondent. The stipulated agreement is approved.

The only charge remaining in issue is set forth in citation #3 which alleges a serious violation of the safety standard at 29 C.F.R. § 1910.212(a)(3)(ii), in that the point of operation was not guarded on certain machines. The standard states:

Subpart O—Machinery and Machine Guarding

§ 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 to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

29 U.S.C. § 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Pursuant to 29 U.S.C. § 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

29 U.S.C. § 666(j) declares that ‘a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.’

A Department of Labor compliance officer, who inspected Respondent’s establishment on April 23, 1976 (Tr. 9), testified that during the inspection she observed certain machines which were not guarded so as to prevent the machine operators from placing their fingers within the point of operation during the operating cycle, specifically, eight hand-fed wrapping machines (Tr. 13–16), one stayer machine (Tr. 17–18), two miter machines (Tr. 19–20), two paper cutters (Tr. 21–22), and two die-cutting machines (Tr. 27–30). The wrappers had no guards (Tr. 15–16). The stayer and the miter machines had partial guards, which were inadequate (Tr. 17, 18, 36), in that they did not completely enclose the point of operation (Tr. 18, 37–38); the paper cutters had two-hand tripping devices (Tr. 22) which were so constructed that it was possible to tie up the left-hand lever and thereby leave the operator’s left hand free to penetrate the danger zone during the operation (Tr. 23–25, 90); there was a guard available for the die-cutting machines, but the inspecting officer noted that it was on the floor and not in use, and that the operator told her that it was broken (Tr. 29).

The record establishes a violation of the cited standard by Respondent, as charged, and it is so found. I further find that there was a substantial probability that serious physical harm (amputation of fingers) could have resulted from the violation and that Respondent knew or with the exercise of reasonable diligence could have known of the violative condition. Hence, it is found that the violation was of a serious nature.

Civil penalties can be imposed only after considering the size of the business of employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. § 666(i). Respondent usually has between 30 and 40 employees (Tr. 101). There is no evidence of prior safety violations (Tr. 101). Although the employer has no formal safety program (Tr. 77), the safety record is good (Tr. 69). In my view the violation is of moderate gravity, but the likelihood of injury is rather low. Upon consideration of all the factors listed in 29 U.S.C. § 666(i), it is my finding that a penalty of $250 is appropriate.

IT IS ORDERED that the six items in nonserious citation #1, as amended with respect to the abatement date for item 4, and serious citations #2 and #3 be affirmed; that the proposed penalty notice, as amended, relative to citations #1 and #2, be affirmed; and that a penalty of $250 be imposed for serious citation #3.

ABRAHAM GOLD

Judge, OSHRC

Dated: February 24, 1977

Boston, Massachusetts

[1] In addition, the judge affirmed a nonserious violation of the Act. None of the parties have taken exception to that action, and, accordingly, it is not before us on review.

[2] Former Commissioner Moran also directed that the judge’s decision be reviewed ‘to determine whether the record establishes violations as alleged in the citation and whether the judge properly interpreted and applied 29 U.S.C. § 666(j).’

[3] § 1920.212 General Requirements for all machines.

(a) Machine guarding

(3) Point of operation guarding.

[4] § 1910.21 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.

[5] Respondent suggests that its claim of impossibility is given added weight by the history of no injury on the wrappers. The Commission, however, has held that where, as here, objective facts demonstrate the existence of a hazard, that finding is not negated by an employer’s favorable safety record. See A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977–78 CCH OSHD ¶ 21,573 (No. 12501, 1977), aff’d, 576 F.2d 948 (1st Cir. 1978).