F. H. LAWSON COMPANY

OSHRC Docket No. 12883

Occupational Safety and Health Review Commission

February 29, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

John M. Kunst, Jr., for the employer

Arnold Tucker, Business Agent, Int's Assoc. of Machinists, Local 1089, for the employees

Mr. Robert McManus, Metal Polishers, Buffers, Platers and Helpers International Union, Local 68, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David G. Oringer is before the Commission for review n1 under 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").   At issue is whether Judge Oringer erred in affirming n2 nonserious violations of section 5(a)(2) of the Act based on respondent's failure to properly guard machines at its Cincinnati, Ohio plant.   For the reasons stated below, we affirm the judge's decision.

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n1 Chairman Cleary granted respondent's petition for review in this case.   Former Commissioner Moran also directed the case for review "for error" without specifying any issue.

n2 At the hearing respondent withdrew its Notice of Contest regarding Niagara Press No. 483 cited in Item No. 25.   This is a final order of the Commission by operation of law.   29 U.S.C. §   659(a).

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Following an inspection by a representative of the Secretary, Lawson was cited for noncompliance with 29 C.F.R. §   1910.212(a)(3)(ii) n3 for failing to guard the points of operation of three riveters, "whose operation exposes an employee to injury," and for noncompliance with 29 C.F.R. §   1910.217(c)(1)(i) n4 for failing to "provide and insure the usage of 'point of operation guards.'" A description of the operation of those five machines follows.

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n3 §   1910.212 General Requirements for all machines.

(a) Machine guarding

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(3) Point of operation guarding

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(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.

n4 §   1910.217 Mechanical Power Presses

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(c) Safeguarding the point of operation -- (1) General requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.   See Table 0-10.

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Riveter No. 460

Riveter No. 460 is used to attach four casters to the bottom of a circular dolly 21 inches in diameter with a 1 5/8 inch flange on its perimeter.   The operator, whose hands are as close as a foot from the operation, holds the dolly under a ram, places a caster underneath the dolly, and then depresses a pedal that forces the ram to descend and rivet the caster to the dolly. The opening between the ram and the anvil is two inches.

Press No. 927 and Riveter No. 736

These machines perform the complementary tasks of piercing and then riveting a stainless steel band around the base of a cylindrical container.   The container is fitted with the band and then lifted partially off a dolly and placed on a rest.   Depression of a foot treadle on Press No. 927 causes two rams to descend and pierce the steel band and the cylinder.   The container is then rotated a half turn and the same operation is repeated.   While performing this operation, the operator holds the edge of the cylinder with his hand approximately a foot away from the descending ram. The opening between the ram and the lower [*4]   die is three inches.   The container is then moved three feet to riveter 736 which fastens the band and the container together in an operation identical to that of Press No. 927 except that the riveter has a single ram, which requires four cycles of the machine rather than two.

Riveter No. 745

The operation of Riveter No. 745 involves riveting a small clip to the inside of a bathroom cabinet. After placing the clip on the anvil, the operator positions the cabinet so that the anvil protrudes through the prepunched hole in the cabinet. By pushing a treadle he causes the ram to descend riveting the clip in place.   The operator holds the 22 1/2 inch high cabinet during the entire operation.   After putting the clip on the anvil, the operator is 18 to 20 inches from the 3/4 inch opening at the point of operation during the work cycle.

Press No. 530

Press No. 530 crimps spouts onto one quart measuring cans.   Following the insertion of a nine inch flexible spout into a ferrule n5 at the base of a breastplate that covers nearly half of the top of the can, the press operator inserts the entire length of the spout into a 1 1/4 inch opening in a faceplate until the ferrule is in   [*5]   the point of operation. Then, by depressing a treadle, he causes the dies inside the opening to converge and crimp the ferrule around the enclosed spout. The operators hands are less than 6 inches from the point of operation during much of this operation.   After inserting the spout, however, the operator of the machine grasps the measuring can in both hands.   When the spout and ferrule are in position for crimping, the breastplate is flush against the opening leading into the point of operation.

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n5 The ferrule is a collar forming the opening into the measuring can.   The breastplate is the rounded section covering nearly half of the top of the measuring can.   It prevents the liquid from flowing over the edge of the can during pouring.

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The point of operation on each of the cited machines is not guarded.   It is possible on all five machines for the operator to put a finger or hand into the point of operation during the work cycle.

Respondent conceded that the points of operation on all five machines were unguarded,   [*6]   but contended that the Secretary had not made out a prima facie case as to 29 C.F.R. §   1910.212(a)(3)(ii) in that he did not show that the operator's hands were within the point of operation during the work cycle. Respondent also contends that the testimony of its safety director, Ruhe, demonstrates the impossibility n6 of guarding any of the cited machines. n7

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n6 The Commission recognizes the defenses of impossibility of compliance and impossibility of performance. M.J. Lee Construction Company, 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).   Here, respondent states that it is proving impossibility of compliance by demonstrating that it is impossible to guard the machines. What it is actually attempting to prove is impossibility of performance, i.e., guarding the machines will preclude their operation.

n7 Solely in order to exhaust its administrative remedies, Lawson argued before the judge and renewed its contentions in its petition for discretionary review that 29 C.F.R. §   1910.212(a)(3)(ii) is vague, that 29 C.F.R. §   1910.217(a)(5) excludes riveters from coverage of the machine guarding standards, and that the Secretary is required to prove the feasibility of guarding. As respondent notes, we have rejected all of these arguments.   See Irvington-Moore, Div. of U.S. National Resources, 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977); Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD P20,239 (No. 8454, 1975), aff'd, 587 F.2d 231 (5th Cir. 1979). We continue to adhere to our holdings in those decisions.

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Ruhe, who had 28 years of experience with respondent, including 5 years as safety director, testified that the types of guarding available such as ring guards, restraint guards, barrier guards, two hand tripping devices, and sweep guards could not be used on respondent's machines for two reasons.   First, guards that would keep the operators hands out of the point of operation, would also keep the object to be riveted, pierced, or formed out of the point of operation and would prevent the machine from performing its function.   Second, two hand tripping devices would be similarly ineffective, since it is necessary for the operators on all five machines to hold the work material in place while they control the machine's cycle by foot pedal.

The judge held that the Secretary need show only that the point of operation of a press was unguarded to make out a prima facie violation of 29 C.F.R. §   1910.217(c)(1)(i) while he must also show that employees were exposed to injury by the points of operation of the riveters to establish a prima facie violation of 29 C.F.R. §   1910.212(a)(3)(ii).

In his decision, the [*8]   judge, citing to Irvington-Moore, Div. of U.S. National Resources, 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977), held that 29 C.F.R. §   1910.212(a)(3)(ii) was not void for vagueness and therefore unenforceable as respondent contended.   The judge also held that the Secretary did not have the burden of proving that certain methods of abatement were feasible.   Rather, he held, once the Secretary has demonstrated that there was no point of operation guarding on the presses, and has shown that the unguarded points of operation of the riveters expose respondent's employees to injury, the burden of proving "impossibility of performance" shifts n8 to the respondent as in the proof of any affirmative defense.   Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD P20,239 (No. 8454, 1975) aff'd, 587 F.2d 231 (5th Cir. 1979).

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n8 Respondent can, of course, also challenge the Secretary's prima facie case.

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In considering whether [*9]   respondent succeeded in its proof, the judge discussed Lenscraft Optical Corporation, 75 OSAHRC 68/B12, 3 BNA OSHC 1400, 1974-75 CCH OSHD P19,648 (No. 6628, 1975), an unreviewed judge's decision, n9 in which an employer's proof of impossibility of compliane was "overwhelming." In that case, the employer demonstrated that it had made a number of attempts to comply with the standard, including changing the methods of guarding, considering changes in the actual operation of the machines, as well as hiring an equipment designer at a cost of $60,000 to attempt to design a guard for the machines. The judge noted, however, that "it may well not be necessary to come forth with such an abundance of evidence in order to" prove impossibility. In conclusion, citing Clark Equipment Company, 75 OSAHRC 21/A2, 3 BNA OSHC 1834, 1975-76 CCH OSHD P20,238 (No. 7925, 1975) he held that the testimony of respondent's employee that he knows no method of guarding the machines under its present mode of operation was not enough to carry the burden of proving impossibility.

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n9 An unreviewed judge's decision does not constitute precedent binding upon the Commission.   Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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Therefore, the judge affirmed violations as to the five cited machines. He also approved a joint stipulation that no penalties be assessed.

On review, respondent contends that the Secretary failed to carry his burden of proof regarding the cited riveters. Respondent claims that the Secretary must prove that an operators' hands are within the "danger zone" or point of operation during the operating cycle, and that the record in this case shows only that the operators' hands were within 10 inches of the point of operation. Respondent asserts that evidence indicating the mere possibility that a riveter operator may put his hand in the point of operation is insufficient to show that operator is exposed to injury under 29 C.F.R. §   1910.212(a)(3)(ii).

In addition, it maintains that the credible, probative, persuasive testimony given by its safety officer, an expert in the field, should have been accorded great weight, given the failure of the Secretary to even attempt to rebut it.   It also contends that the judge, by his reliance on the judge's decision in Lenscraft Optical, supra, departed from [*11]   Commission precedent in holding that the "unchallended" testimony of a single employee, without more, is not sufficient to prove the affirmative defense of impossibility. Lawson cites Buckeye Industries, Inc., supra, Clark Equipment Co., supra, Garrison & Associates, Inc., 75 OSAHRC 51/D5, 3 BNA OSHC 1110, 1974-75 CCH OSHD P19,550 (No. 4235, 1975), in support of its contention that the Commission has never held that an outside witness was required to prove impossibility. In addition, respondent maintains that this case is easily distinguishable from those cases because here it has presented an "unchallenged, factual, well-qualified analysis demonstrating that guarding is impossible."

A second departure from Commission precedent, according to respondent, concerns the judge's holding that an employer must make "strenuous" efforts to place guards on its presses and riveters before it can successfully prove impossibility. Lawson again contends that the testimony of its safety officer is sufficient to prove impossibility and that there is "no mandate in either the Act or the Regulations that an employer must spend vast amounts of money on outside research and development [*12]   in order to rule out every conceivable kind of guarding."

Respondent also asserts that, as a matter of law, once it had demonstrated through credible, probative testimony that it was impossible to guard the presses and riveters, the burden shifted to the Secretary to rebut this showing.   Since the Secretary did not attempt to rebut this evidence, Lawson was not under a duty to adduce any additional evidence.

In conclusion, Lawson argues that in the absence of any history of injury to the operators of these machines, it is unreasonable for the judge to suggest wholesale changes in the method of operation in order for respondent to comply with the Act, especially in view of the absence of any evidence in the record that changes in the method of operation would facilitate guarding.

In its brief on review, the Secretary contends that it made out a prima facie case as to all five machines and that the testimony of respondent's safety officer was patently insufficient to establish an impossibility defense within the terms of Lenscraft Optical, supra. Noting the failure of respondent to consider any changes in operating procedures on the machines, he characterizes Lawson's defende [*13]   as being little more than that rejected by the Commission in Clark Equipment Co., supra. In summary, the Secretary stated "that in order for respondent to carry its burden with respect to an impossibility of performance defense it must do more than adduce evidence through its own employee who, partly by hearsay testimony, shows that he does not know how to guard the machines at issue."

Lawson's assertion that the Secretary failed to carry his burden of proof regarding the riveters is without merit.   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 the method of operation exposes an employee to injury.   Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978).   Here it is clear that the operators' hands were 10 to 20 inches from the point of operation during the work cycle. This is sufficient to show that employees were exposed to injury within the terms of 29 C.F.R. §   1910.212(a)(3)(ii).   See Pass & Seymour, Inc., (No. 76-4520, November 29, 1979).   As the judge held, where as here, the Secretary demonstrates that an unguarded point [*14]   of operation exposes an employee to injury, he has made out a prima facie case of noncompliance with 29 C.F.R. §   1910.212(a)(3)(ii).   The judge also correctly held that the Secretary makes out a prima facie case of noncompliance with respect to 29 C.F.R. §   1910.217(c)(1)(i) by showing that the point of operation on a press is not guarded.   Here, since the facts demonstrate and respondent concedes that the points of operation of the presses were not guarded, the Secretary has also made out a prima facie case of noncompliance with respect to 29 C.F.R. §   1910.217(c)(1)(i).

In order to prove the 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. n10 M.J. Lee Construction Company, 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

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n10 In Chairman Cleary's view, before the Commission considers an impossibility defense, the employer must exhaust the variance procedures provided by section 6(d) of the Act.   Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD P20,576 (No. 4537, 1976) (concurring opinion).

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In our view, the judge was correct in holding that respondent did not meet that burden of proof.   We do not agree with respondent's contention that the judge departed from Commission precedent in doing so.   The judge did not reject respondent's proof of impossibility because the basis of that proof was the testimony of respondent's safety officer or because respondent failed to demonstrate that it had expended large sums of money in a search for guarding. He found the evidence insufficient because the testimony of respondent's safety officer and the various attempts at guarding were limited in scope to the exact present mode of operation of the machines. The flaw in respondent's proof of impossibility lies in its failure to even consider changes in its mode of production that might lead to compliance.   Hughes Brothers, Inc., supra. In view of Lawson's failure to consider any change in its mode of operation, the Secretary's failure to rebut its evidence is without effect since respondent has not sustained the burden of proving impossibility. Cf. Central Steel and Tank Company, 75 OSAHRC [*16]   9/A2, 3 BNA OSHC 1711, 1975-76 CCH OSHD P20,172 (No. 2346, 1975).

Respondent's contention that there is nothing in the Act or regulations that would require an employer to make wholesale changes in its production methods is also without merit.   The Secretary "may properly force technological advances through the promulgation of requirements which are beyond what industry is immediately capable of attaining." n11 Diebold, Inc. v. Marshall and OSHRC, 585 F.2d 1327, 1333 (6th Cir. 1978). In fact, the wording of 29 C.F.R. §   1910.212(a)(3)(ii) and 29 C.F.R. §   1910.217(c)(i) clearly indicates that both standards, although not specifically technology forcing, place great reliance on an employer's expertise.   Neither standard specifies a method of guarding. Instead the standards require that an employer provide guarding for its machines that meets performance criteria.   Hughes Brothers, Inc., supra. In the case of 29 C.F.R. §   1910.212(a)(3)(ii) guarding "shall . . . prevent the operator from having any part of his body in the danger zone during the operating cycle." The guarding required by 29 C.F.R. §   1910.217(c)(1)(i) "shall prevent entry of hands or fingers into the point [*17]   of operation by reaching through, over under or around the guard" as required by 29 C.F.R. §   1910.217(c)(2)(a).   Thus, a respondent faced with a guarding problem is expected to use the skills and resources at its disposal to develop an acceptable method of guarding. This may, in some cases, require changes in the method of operation of the machine. Although Lawson may have devoted much time and effort to the development of its present methods of production, its failure to reconcile available guarding methods to its present methods of operation would, given the paramount importance of employee safety, demand that modification of production methods be investigated.   In reaching this conclusion, we note that Lawson has declined, for reasons that remain unclear, to resort to the variance procedures of section 6(c), 29 U.S.C. §   655(d), of the Act.

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n11 In Chairman Cleary's view, this does not mean that an employer is required to conduct open-ended research and development in attempting to comply with the Act.   See American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3d Cir. 1978), cert. den., 435 U.S. 914 (1978). In this case, it is clear that it is well within Lawson's ability to devise guarding techniques that will meet the requirements of the standard.

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We recognize that, on the facts of this case, the use of certain guarding techniques may make the operation of respondent's machines difficult.   Respondent, however, made no attempt to find an appropriate combination of guarding techniques and operating procedures in order to protect its employees.   Therefore, respondent's defense of impossibility of performance must fail.

Lawson also argues that its excellent safety record militates against forcing it to make wholesale changes in production when the safety value of such changes is unknown.   We have held, however, that the existence of a hazard is not negated by a favorable safety record that an individual employer may have experienced.   A.E. Burgess Leather Company, Inc., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD P21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978).

For the above reasons, we conclude that respondent has failed to guard its machines as required by 29 C.F.R. §   1910.212(a)(3)(ii) and 29 C.F.R. §   1910.217(c)(1)(i).   We also conclude that respondent has failed to establish by a preponderance of the evidence the [*19]   affirmative defense of impossibility of performance. Although the Commission is not bound by the party's stipulation that no penalty be assessed, Thorleif Larsen & Son of Indiana, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD P18,826 (No. 370, 1974), we find that in this case the assessment of no penalty is consistent with the criteria of section 17(j) of the Act, 29 U.S.C. §   666(i).

Accordingly the judge's decision is affirmed.

So Ordered.  

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

Lawson was cited for violating the standard at 29 C.F.R. §   1910.212(a)(3)(ii) by not guarding the point of operation of riveting machine numbers 736, 745 and 460 and for violating the standard at 29 C.F.R. §   1910.217(c)(1)(i) by not guarding the point of operation of power press numbers 530 and 927.   Lawson concedes that the machines were not equipped with point of operation guards or other safety devices.   It argues, among other things, that the operation of the machines does not expose its employees to injury and that guarding is impossible.

A description of the five different machines and the manufacturing processes used in performing work on the machines follows.

Riveter 460 is [*20]   used to rivet four casters onto the bottom of a circular dolly with a 21-inch diameter.   The casters are each mounted on assembly plates that have had holes drilled into each of their four corners to accommodate the rivets which will secure the casters to the dolly. The machine operator first places a caster on the machine's anvil pin and then positions the outer edge of the dolly over the caster. The point of operation opening between the anvil and the upper ram of the machine is 2 inches.   That distance is just enough to allow the edge of the dolly with its 1 5/8-inch flange to pass between the arm and the anvil. The activate the riveter and set each of the sixteen rivets for the dolly, the operator depresses a foot treadle which cycles the machine. The operator holds the dolly with both hands while riveting each caster to the dolly; his right hand is about a foot away from the machine's point of operation and his left hand is about 21 inches away from the point of operation.

Riveter 745 is used to rivet a small electrical ground clip to the inside of bathroom cabinets measuring 28 inches by 22 inches by 5 1/2 inches.   The cabinet is bounded by a 5/8-inch facing around its   [*21]   sides, top and bottom.   The ground clip is placed on the riveter's anvil pin by the operator with his right hand while holding the cabinet with his left hand.   The operator then lifts the cabinet with both hands and maneuvers its facing edge between the 3/4-inch opening at the riveter's point of operation. He aligns a pre-punched hole in the back of the cabinet over the anvil pin and ground clip and then moves his hands toward the rear of the cabinet to hold the cabinet parallel to the floor.   To trip the press, the operator must lean away from the riveter so that his foot can reach the fixed foot treadle at the base of the machine. When the machine cycles, the operator's hands are holding the cabinet's sides some 20-25 inches away from the point of operation. The cabinet is between the operator's chest and the machine's point of operation.

Press 927 and riveter 736 are used to pierce and rivet, respectively, a stainless steel band around the base of a cylindrical waste receptacle with a dome top.   The two machines are approximately 3 feet from each other and are run by the same operator.   A receptacle is first placed lengthwise on a cradle that is mounted on casters. Then the [*22]   operator places a stainless steel band around the bottom edge of the receptacle and secures the band firmly in place by clamping a holding fixture around the band and bottom edge of the receptacle. With the steel band in place, the operator pushes the cradle and receptacle over to press 927, lifts the receptacle partially off the cradle and places the bottom edge of the receptacle against a stop located beyond the piercing die on the bed of the press.   The point of operation opening between the machine's ram and anvil is 3 inches.   The operator trips a guarded foot treadle that cycles the press and concurrently pierces holes in the top and bottom of the steel band. To prevent displacement of the receptacle from the piercing die, the operator holds the bottom edge of the receptacle with his right hand while the machine cycles. The operator's right hand is then about 12 inches from the machine's point of operation. At the same time, the operator's left hand is used to steady the receptacle by holding it at the end furthest from the press.   After the first two holes have been pierced in the steel band, the operator spins the receptacle around 180 degrees in its cradle so that the [*23]   other two holes may be pierced in the band. When the final holes have been made, the receptacle is lifted from the press and wheeled to riveter 736 for the riveting of the steel band to the receptacle.

The operator's hands are in the same locations during his use of riveter 736 as they were during his use of press 927.   The major difference present in the operations of the two machines is that the press pierces two holes in the same cycle while the riveter sets only one rivet for each of its cycles. The operator must therefore cycle the riveting machine four times to set the required four rivets.

Crimping press 530 is used to secure a 9-inch long flexible spout to the inside of a ferrule on the breast of a one-quart measuring can.   The operator inserts the spout into the ferrule with one hand while holding the can in his other hand.   Then with both hands holding the can, the operator inserts the spout through a 1 1/4-inch opening in a face plate that hides the press's clenching jaws.   He places the can's breast flush against the face plate so that the 1 1/4-inch opening is completely covered by the breast of the can.   While still holding the can with both hands, the operator trips [*24]   the press to close the clenching dies and crimp the ferrule around the flexible spout. His hands are prevented from entering the point of operation during the operating cycle by the shape of the can he holds.

Judge Oringer ruled that the Complainant had established a prima facie case as to the violation of §   1910.217(c)(1)(i) by showing that the presses were unguarded and a prima facie case as to the violation of §   1910.212(a)(3)(ii) by showing that the riveting machines were unguarded and operated by employees who were exposed to the riveters' point of operation danger zones.   He affirmed the citation items alleging violations of those standards after finding that the testimony of Lawson's safety director was not sufficient to prove that it was impossible to guard the five machines. The judge also found that Lawson did not offer proof of any attempts to alter its mode of production to accommodate safe methods of guarding and did not offer evidence that it had expended strenuous efforts to guard the five machines.

I would reverse the judge and vacate that portion of the citation alleging Lawson's failure to comply with the standard at §   1910.212(a)(3)(ii) by not [*25]   guarding its three cited riveters. I would affirm that portion of the citation alleging Lawson's failure to comply with §   1910.217(c)(1)(i) by not guarding its two cited presses, but would modify the designation of that item to de minimis.

The standard at §   1910.212(a)(3)(ii) only requires the guarding "of machines whose operation exposes an employee to injury." Thus, guarding is not required if the nature of the machine operation does not expose an employee to a hazard.   A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD P21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978); Collator Corp., 76 OSAHRC 32/A2, 3 BNA OSHC 2041, 1975-76 CCH OSHD P20,446 (No. 2004, 1976).

The hands of the employees operating the cited riveting machines are effectively prevented from entering the point of operation of the machines by the requirement that the employees hold the products while placing the pieces into and removing them from the machine and during the operating cycles of the machines. The products must be held in a particular way in order to properly perform the manufacturing operations.   In all cases, a substantial portion of the product being [*26]   manufactured is located between the point of operation of a machine and the hands of the machine operator. n1 Moreover, in all cases, control over the cycling of a machine is exercised by the operator of that machine. For an accident to occur, therefore, an operator would not merely have to hold the product being manufactured in an awkward and improper position but the operator would have to activate the machine at the same time.   Even allowing for the possibility of improper operation, carelessness, or fatigue, it is extremely unlikely that any part of an employee's body would enter a machine's point of operation. Consequently, the employees operating the riveting machines are not exposed to any hazardous conditions.   I would, therefore, vacate this portion of the citation.

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n1 The operator of riveting machine 460 uses both hands to hold the dolly while operating the machine; his right hand is about 12 inches from the machine's point of operation and his left hand about 21 inches away.   To activate riveter 745, the operator leans away from the riveter and pushes its foot treadle while holding a cabinet between himself and the machine. In operating riveting machine 736, the operator's right hand is positioned about 12 inches from the machine's point of operation and is used to hold the bottom edge of the receptacle level for proper riveting; his left hand steadies the far end of the receptacle some 24 inches away from the riveter's point of operation.

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Lawson did, however, violate the standard at §   1910.217(c)(1)(i).   That standard, unlike the standard at §   1910.212(a)(3)(ii), does not require proof of a hazard by the Secretary.   The standard assumes that it is hazardous to operate a mechanical power press without a point of operation guard or other safety device.   See Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973-74 CCH OSHD P17,693 (No. 1105, 1974), aff'd, 511 F.2d 864 (10th Cir. 1975). Since power presses 530 and 927 were not so equipped, the former standard was violated. n2

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n2 I agree with the majority that Lawson has not established the defense of impossibility of performance. It is well established that a respondent cannot establish the impossibility defense merely by showing that compliance would require changes in its mode of production.   See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978).   Here Lawson neither considered changes in its mode of production nor as the majority notes "attempt[ed] to find an appropriate combination of guarding techniques and operating procedures in order to protect its employees." As Chairman Cleary notes, this does not mean that an employer must conduct open-ended research and development but an employer is responsible for implementing guarding devices which could have been devised at the time of the alleged violation.

Lawson objected to the use of a pull-back device on press 927 because during the operating cycle the operator's hands are behind the point of operation and therefore a pull-back device would not only pull-back the operator's hands but also the piece being worked upon.   The compliance officer suggested, however, that a restraint device using a circular bar would overcome this problem.   Lawson did not rebut this evidence.   Furthermore, the record does not establish that a restraint device could not have been used on press 530.   During the operating cycle of this press, the operator's hands are not behind the point of operation.

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The nature of the violation is de minimis, however, because the probability of injury is so remote as to be negligible.   See Illinois Bell Telephone Co., 77 OSAHRC 178/A2, 5 BNA 1885, 1977-78 CCH OSHD P22,209 (No. 2097, 1977); Hana Shoe Corporation, 76 OSAHRC 109/E13, 4 BNA OSHC 1635, 1976-77 CCH OSHD P21,033 (No. 5656, 1976).   In operating press 530, the operator holds a measuring can with both hands.   His hands are prevented from entering the point of operation while the machine cycles by the breast of the can, which completely covers the small hole behind whicn are the machine's clenching dies.   To sustain a point of operation injury, the operator would purposely have to stick a finger into the hole through which the can's spout should be inserted and depress the machine's foot pedal.   While operating press 927, the operator's right hand is about 12 inches away from the machine's point of operation, holding the receptacle's bottom edge to prevent displacement of the receptacle on the piercing dies; the operator's left hand steadies the outer end of the receptacle some 24 inches away from [*29]   the machine's point of operation. To injure himself on this machine the operator would have to disregard the work methods required to do his job properly, leave a hand in the point of operation, and depress the machine's guarded foot pedal.

Further, Lawson's safety coordinator testified that there had not been any injuries on either press for the five-year period during which record-keeping had been required under the Act.   He also testified that he did not know of any injuries having occurred on press 530 during the past 28 years at Lawson. n4 Under all the foregoing circumstances, Lawson's failure to comply with the cited standard is de minimis and does not require abatement or warrant a penalty.

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n4 This testimony is not determinative in my characterization of the violation as de minimis.   It is, however, probative evidence of whether an accident is probable.   Noncompliance with a standard may of course be proven even where there is an absence of past injuries.   Arkansas-Best Freight System, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976).

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