GTE AUTOMATIC ELECTRIC, INC.
OSHRC Docket No. 3113
Occupational Safety and Health Review Commission
June 17, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge J. Marker Dern, dated November 30, 1973, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than 17 months. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.
The members of the Commission are equally divided on whether the Judge properly disposed of item 6 of the citation. Chairman Moran would affirm finding no prejudicial error in the Judge's opinion. Commissioner Cleary's views are set forth in his separate opinion.
Accordingly, the decision of the Judge on item 6 is affirmed by an equally divided Commission. This decision has no precedential weight as to that item. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975). The remaining findings of the Judge are affirmed for the reasons stated in his decision.
CLEARY, COMMISSIONER: Judge Dern held that respondent was not in violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter "the Act") [*2] for non-compliance with 29 CFR § 1910.212(a)(1) (requiring machine guards). For the reasons that follow, I would reverse.
Respondent, a manufacturer of telephone equipment, was cited for failing to guard the rotating parts on several drill presses contrary to 29 CFR § 1910.212(a)(1). n1 No penalty was proposed by the Secretary.
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n1 The standard reads as follows:
29 CFR 1910.212(a)(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.
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At the hearing, the Secretary's only witness, Howard T. Gillingham, an OSHA compliance officer, testified to the existence of the alleged violative conditions. His testimony revealed that at least some of the drill presses lacked guards. Mr. Gillingham [*3] further testified that the respondent could guard the drill presses by installing "sleeves" over the chuck and drill bit or by using barrier guards. The hazards created by the exposed drills were flying hot metal chips, the possibility of clothing or hair being caught in the rotating parts, and the possibility of fingers being cut or mangled. The exact number of employees exposed to the hazards is unclear, but certainly more than one, and possibly as many as twelve, were exposed. The company reported only one injury in four hundred thousand man-hours in the drill press department. Furthermore, the employees are instructed to wear hair nets and eye protection and are not allowed to wear any jewelry or loose clothing.
In his decision, Judge Dern states that the hazard presented by non-compliance was "minimal if non-existent," and therefore vacated the citation. This was error because the Secretary clearly showed that respondent's employees worked with unguarded spinning drill bits. One slip could cause, for example, injury to fingers and hands. That injuries are rare does not negate the existence of a hazard. Furthermore, respondent's own witness recognized the existence of [*4] the hazard, as did its safety officer who had investigated the possibility of providing drill press guards. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).
Respondent argues that the Secretary must show the means for complying with section 1910.212(a)(1). I disagree. The Act imposes a positive duty on employers to comply with occupational safety and health standards. See sections 5(a)(2) and 2(b)(1) of the Act; Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir., 1975). An employer must make a reasonable effort to ascertain the required conduct. n2
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n2 Nothing herein should be construed to derogate the Secretary's duty under the Act to provide for education, training, and consultative aids to employers. See section 21(c) of the Act.
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A recent law review comment has put the matter well:
. . . [T]he employer is charged with the duty of knowing the standards and of complying with them. If he believes that a certain standard should not apply to [*5] his particular situation, he must reach that opinion before a citation is issued and submit his case to the Secretary of Labor in a request for a variance. He cannot simply disregard the standard and defend against a resulting citation by attacking the standard at the hearing. Such a rule is consonant with the remedial nature of OSHA. The propriety of a standard is not for the employer to determine sua sponte; OSHA was created because employer decisions on safety precautions so often have been inadequate.
Comment, "OSHA: Developing Outlines of Liability," 62 Geo. L. Rev. 1483, 1494 n. 61 (1974).
A citation for a violation of section 5(a)(2) for failure to comply with a standard is distinguishable from one for a violation of section 5(a)(1) of the Act, the general duty clause. Anning-Johnson Company and Workinger Electric, Inc. v. O.S.H.R.C. and Brennan, 516 F.2d 1081 (7th Cir., 1975). The District of Columbia Circuit has held that under the general duty clause, the Secretary is obligated to show the employer how a "recognized hazard" can be abated. National Realty & Constr. Co., Inc. v. O.S.H.R.C. 489 F.2d 1257, 1267 (D.C. Cir. 1973). The policy reason that [*6] compelled this holding was that, unlike violations of section 5(a)(2), the employer is not guided by a safety and health standard to means of compliance. Because of the respondent has been cited for a violation of section 5(a)(2) of the Act, the reasoning applicable to a section 5(a)(1) case is inappropriate here. The problem of fair notice thatconcerned the court in National Realty, supra, is cured by a duly promulgated safety and health standard.
Therefore, I do not consider it incumbent upon the Secretary to establish as part of his prima facie case what respondent should have done to comply with section 5(a)(2) of the Act and the standards promulgated thereunder. n3
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n3 In any event, the record is clear that the compliance officer did testify to appropriate methods of guarding respondent's drill presses. The compliance officer suggested, as examples, that respondent could have used sleeves or barrier guards to protect employees from the moving parts. He also testified that he had seen one plant where sleeve guards had been used on drill presses. Respondent's expert witness thought that he too had seen such a plant, probably the same one.
[*7]
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Respondent's own ability and experience and that of industry may be relied on to initiate useful controls suitable to conform to the statutory purpose and that of a standard. Cf. Society of the Plastics Industry, Inc. v. O.S.H.A., 509 F.3d 1301 (2d Cir. 1975).
The employer, however, is not left without a remedy if it has an abatement problem. Under section 10(c), it may petition for a modification of the abatement date. See H.K. Porter, Inc., No. 1210-P (March 23, 1974). It may also seek a variance from the standard under procedures set forth at sections 6(b)(6)(A) and 6(d) of the Act. Cf. Joseph Bucheit & Sons, Co., No. 295 (July 31, 1972) (Administrative Law Judge). See also 29 CFR Part 1905.
Respondent also claims that machine guarding would have been more of a hazard than a help to the employees. We have held that section 5(a)(2) should not be read so literally as to require a form of compliance that diminishes rather than enhances employee safety. Industrial Steel Erectors, Inc., No. 703 (January 10, 1974). That decision by its very terms, however, is to be strictly [*8] applied. Accordingly, the scope of any affirmative defense under that decision is narrow. We also indicated that the defense may not be available under circumstances in which relief through a variance petition may be more appropriate. G.A. Hormel & Co., No. 1410 (September 20, 1974). Furthermore, as an affirmative defense, it is the duty of the respondent to plead this defense so as to give adequate notice to the Secretary. The respondent did not affirmatively plead this defense. Even if the defense were considered, there is no factual support in the record for it. Indeed, the record is to the contrary. The respondent's expert witness was asked: "Do you have an opinion as to whether such guards really are a protection to the employee?" He replied:
I am going to have to say yes, honestly. Anything that will remove a revolving body from contact by use of a stationary piece of material is going to remove a hazard, but I have never seen and I don't know how it could be hooked up on a drill press as such (emphasis added).
In the same vein, respondent attacks the wisdom of the standard as applied to it. The Commission lacks statutory authority to review the [*9] wisdom of a standard duly promulgated by the Secretary. The Budd Co., Nos. 199 & 215 (March 8, 1974); United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974); Arkansas-Best Freight Systems, Inc., No. 2375 (February 21, 1975). n4
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n4 Respondent also contends that the standard does not apply to drill presses. The point is easily resolved. The standard applies by its terms to all machines. It is the cardinal rule of statutory construction that the construction of a statute clear on its face need go no further than its own terms. Caminetti v. United States, 242 U.S. 470, 485 (1917).
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Respondent further contends that 29 CFR § 1910.212(a)(1) was invalidly promulgated. n5 This assertion lacks merit. The minor editorial changes n6 that the Secretary made when promulgating the standard as an "established Federal standard" under section 6(a) of the Act did not change the substantive requirements of the original Walsh-Healey standard. I do not consider Respondent's further contentions [*10] that another portion n7 of section 1910.212 was invalidly promulgated because respondent was not cited for non-compliance with that subparagraph.
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n5 The standard was derived from regulations promulgated under the Walsh-Healey Act. See 41 CFR § 50-204.5 (virtually indentical to the instant standard).
A divided Commission has ruled that the Commission has the power to consider the validity of a standard promulgated by the Secretary. Santa Fe Trail Transport. Co., No. 331 (December 18, 1973), rev'd on other grounds, 505 F.2d 869 (10th Cir. 1974). I do not share this view for the reason stated in my dissent to Santa Fe Trail Transport. Co.
n6 The Secretary changed the general title from "Machine guardings" (in 41 CFR § 5-204.5) to "General requirements for all machines" (in 29 CFR § 1910.212). Section 29 CFR § 1910.212(a) was labeled "Machine guarding, and § 1910.212(a)(1) was labeled "Types of guarding," whereas 41 CFR § 50-204.5(a) had no such titles. The titles are merely descriptive and insubstantial. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir., 1975).
n7 The part was 29 CFR § 1910.212(a)(3)(ii) (point of operation shall be guarded).
[*11]
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Respondent finally contends that the standard is unconstitutionally vague. I do not agree. This Commission has held that a standard written in broad terms will not be declared unenforceably vague so long as employers of common intelligence are apprised of the conduct required of them and need not guess as to its meaning, Georgia-Pacific Corp., No. 676 (August 20, 1973), or if such terms may acquire meaning when read in the light of other regulations, or if such terms may acquire meaning when read in the light of other regulations, or if they have a customary meaning among persons to whom they apply. Ryder Truck Lines, supra; Brennan v. O.S.H.R.C. & Santa Fe Trail Transport. Co., 505 F.2d 869 (10th Cir. 1974). n8 Furthermore, when it appears in the record that the employer understood the standard's meaning, or that he evinced this comprehension by providing against the hazard, then the attack should be rejected as frivolous. Georgia-Pacific Corp., supra.
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n8 Concerning the power of the Commission to review the validity of a standard, see note 5 supra.
[*12]
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The standard is not vague. It expressly lists some of the hazards that are to be prevented. It lists by way of example some guarding methods including barrier guards. From the record, it appears that respondent's officers and expert witness will understood that a "sleeve" is a method of machine guarding. In fact, all the parties and witnesses seemed conversant with the terms now attacked as "vague."
Respondent claims that "some" of the drill presses were equipped with two-hand tripping devices. This contention has factual support in the record and I would therefore find that some, but not all, of the machines were so equipped. The standard provides that use of such devices is a method of machine guarding. Thus, I would find compliance for those machines equipped with two-handed tripping devices. But I would affirm the citation in all other respects.
Respondent's good faith and efforts in safety are apparent from the record. Indeed, this was conceded by the Secretary at the hearing. In addition, it has no previous history of violations under the Act. The gravity of the violation [*13] is low. Therefore, no penalty should be assessed.
In light of the foregoing there is no sound reason for further delaying our decision, even though the two Commissioners are divided in their views.
[The Judge's decision referred to herein follows]
DERN, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at 13000 Memorial Parkway South, Huntsville, Alabama, and described as follows "manufacture of subscriber station apparatus," the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.
The citation, which was issued on May 8, 1973, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal [*14] Register on October 18, 1972 (37 F.R. No. 282), and codified in 29 CFR 1910. The description of the alleged violations contained on said citation states:
Item 1-Failure to require the adequate use of eye protective equipment in areas of possible eye injuries.
Item 3-Failure to maintain the 5 spray booths in a clean condition. Overspray was evident throughout the booths.
Item 4-Failure to provide adequate water protection for personnel working in the plating area. Only two safety showers and eye baths are available for the entire area.
Item 6-Failure to guard the rotating parts on several drill presses located in the drill, tap and mill departments. The chucks and bits were unguarded.
The standards as promulgated by the Secretary provide as follows:
29 CFR 1910.133(a)(1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable [*15] eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.
29 CFR 1910.107(g)(2) Cleaning. All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary. Scrapers, spuds, or other such tools used for cleaning purposes shall be of nonsparking material.
29 CFR 1910.94(d)(vii). Near each tank containing a liquid which may burn, irritate, or otherwise be harmful to the skin if splashed upon the worker's body, there shall be a supply of clean cold water. The water pipe (carrying a pressure not exceeding 25 pounds) shall be provided with a quick opening valve and at least 48 inches of hose not smaller than three-fourths inch, so that no time may be lost in washing off liquids from the skin or clothing. Alternatively, deluge showers and eye flushes shall be provided in cases where harmful chemicals may be splashed on parts of the body.
29 CFR 1910.212(a)(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees [*16] 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.
The respondent did not contest items 2, 5 and 7 of the citation. Therefore, the citation with respect to these violations became the final order of the Review Commission, section 10(a) of the Act. However, respondent contested the proposed penalty of $35.00 for item No. 7 of the citation.
Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated May 8, 1973, from Joseph L. Camp, Area Director of the Birmingham, Alabama area, Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess a penalty for the violations alleged in the amount of $85.00 for item No. 1; $35.00 for Item No. 3; $35.00 for Item No. 4 and $35.00 for Item No. 7. No penalty was proposed for Item No. 6.
After respondent contested this enforcement action, and a complaint and an answer had been filed by the parties, the case came on for hearing at [*17] Huntsville, Alabama, on October 2, 1973.
ISSUES
The issues involved herein are whether respondent was in violation of the aforecited safety standards and, if so, what amount, if any, is an appropriate penalty for each of the alleged violations.
FINDINGS OF FACT
1. Respondent is a corporation having a place of business and doing business at 13000 Memorial Parkway South, Huntsville, Alabama. (Para. II complaint, answer).
2. At all material times concerning the alleged violations, the respondent was engaged in the production and assembly of telephone equipment with the products being shipped and transported to points outside the State of Alabama, and respondent is, therefore, engaged in a business affecting commerce within the meaning of the Act. (Para. II complaint, answer).
3. Respondent is sibject to the jurisdiction of the Review Commission.
4. An inspection was made of respondent's worksite on April 24, 1973.
5. One employee of respondent, working in the plating area, was passing materials from acid baths to a rinse to an acid bath, without wearing eye protection.
6. Five water-wash type spray booths had an accumulation of overspray or excess of paint [*18] residue (C, Exhibit 1, Photographs 1 and 2). However, spray booths were equipped with a water washer on which paint floats and is skimmed off at end of work day as well as the walls being sprayed with plastic material on which paint accumulates and is peeled off, including the paint.
7. One employee in plating area worked a distance from spray bath and eye bath, approximately 75 feet. Two safety showers and eye baths were in electraplating area.
8. Chucks and bits were unguarded on drill presses in drill, tap and mill departments where holes of a quarter of an inch is the average drilled. Employees were required to wear eye protection equipment.
9. Respondent has an eye protection program for employees working in an area where there is a reasonable probability of an eye injury with a requirement for wearing the eye protection equipment.
10. A proposed penalty of $190.00 for Items No. 1, 3, 4 and 6 of the citation were recommended by the compliance officer, predicated upon gravity, acid in eyes, Item No. 1; extending credit for good faith, effectiveness of safety program and no history of violations (Complainant's Exhibit 2).
DISCUSSION OF ALLEGED VIOLATIONS
Item No. 1 [*19] 29 CFR 1910.133(a)(1)
The compliance officer observed in the plating area one employee passing materials from an acid bath to a rinse to an acid bath who was not wearing protective equipment and that the hazard involved was possible acid burns to the eyes. These are controverted by respondent's manager of Loss Prevention who accompanied the compliance officer on his inspection and who thought the employee "could have been wearing safety glasses." The manager outlined in great length respondent's safety program regarding use of safety equipment, including written, oral instructions and signs informing employees to "wear eye protection while operating." (Respondent's Exhibit A). Furthermore, Mr. Morelins, respondent's witness, a registered safety professional, testified as to his on-site inspection, that "(it) seems everybody had a pair of glasses on." This witness further testified that his examination of respondent's past eye injuries record reflected "the severity of the eye injuries . . . were extremely low, well below national standard." On these facts, concluding that the compliance officer did observe one employee working as described without eye protection, the standard [*20] provides that protective eye equipment "shall be required where there is a reasonable probability of an injury which can be prevented by such equipment," has been violated. However, in view of respondent's good past history regarding eye injuries, and its excellent safety program with emphasis on eye safety, no penalty is assessed for the violation.
Item No. 3 29 CFR 1910.107(g)(2)
The compliance officer observed five paint spray booths on the sides of which paint had accumulated (Complainant's Exhibit 1, photographs 1 and 2) and the hazard was possible igniting of the paint, which would "contribute greatly to any fire." Respondent's manager testified that the spray booths were "water wash type spray booths" where the paint floats on the water and the paint is skimmed off at the end of the day so "you won't have a big collection there." Furthermore, the sides of the booths were sprayed with a plastic-type material, which after it dried and on which the paint collected, it was pulled off the sides of the booth to clean the booth. The witness also testified the booths were equipped with a fuseable link-type spray head and in case of fire the head would melt the link and [*21] actuate the spray head automatically. The premise of the compliance officer that the accumulated paint might be a fire hazard is not well taken and the respondent is not in violation of the cited standard.
Item No. 4 29 CFR 1910.94(d)(9)(vii)
The compliance officer observed in the dipping and plating area "several tanks with many types of acid, such as cyanide . . . with two spraying booths, one located at each perimeter of the spraying areas," which were provided for washing chemicals from the skin. He concluded that these facilities were inadequate since each were located approximately 75 feet from the center of the area. The hazard involved acid in the eyes or on the body and the water for removal of the acid was too remote to the employees. Respondent's manager offered a schematic diagram of the electra-plating department and located thereon the location of the water baths (Respondent's Exhibit D). He testified that respondent had "two body injuries" from splashing of the plating solution, and that the closest eye wash or shower was between 50 to 60 feet. He estimated the water pressure in the Huntsville, Alabama area "normally over 25 pounds." The facts formulate the [*22] conclusion that employees were exposed to a liquid which may burn, irritate or otherwise be harmful to the skin if splashed upon the worker's body and that no water, showers or eye flushes were "near" the acid tanks. Fifty to 75 feet distance to an employee who has splashed acid in the eyes is not "near" as defined in the cited standard. The gravity is rather high but respondent's history disclosed only two acid injuries. Therefore, in view of such few injuries, the proposed penalty of $35 is appropriate.
Item No. 6 29 CFR 1910.212(a)(1)
The compliance officer observed female employees in the mill and tap department operating drill presses, "none of which I saw guarded." He estimated the number of drill presses as "in excess of a dozen." The hazard involved, possibility of clothing and hair being caught up in the rotating parts and that there could be diversified injuries from the rotating parts. Respondent's manager testified that there was one injury of 400,000 manhours in the drill press department. The operators were indoctrinated in operating the equipment, required to wear hair nets and not permitted to wear jewelry on the hands or wear loose clothing. Mr. Moerlins [*23] testified that the cited standard "was part of the Walsh-Healey Contracts Act regulations, but it was removed for the simple reason that it could not be enforced." He further opined that in his "professional experience, some 5,000 inspections. . . I have probably seen one sleeve guard . . ." and "never in all my experience have I ever seen one on any drill press of any kind."
The cited standard specifies general guarding requirements for all machines and so its applicability would extend to all machines having a point of operation. In the instant case, it appears impractical to use a sleeve guard which seems to be the only guard appropriate, as this would interfere with the view of the operator. Due to the fact that respondent had only one accident in 400,000 manhours of operation in the drill press area, the hazard alleged is minimal if non-existent. Therefore, respondent was not in violation of the standard.
Item No. 7 29 CFR 1910.145(f)(1)(i)
As to Penalty Only
The proposed penalty was $35 for the violation cited:
Failure to tag or lock out equipment while making adjustments or repairs to the screw machine number 12008, Acme Gripley in the screw machine department.
Respondent's [*24] manager testified it "never had an injury due to someone turning on our screw machines while it was being adjusted or repaired in the history of our local plant." Complainant offered no testimony regarding the proposed penalty. Therefore, with the facts clearly showing the non-existence of a hazard, no penalty should be assessed.
CONCLUSIONS OF LAW
1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of section 3 and 4(a) of the Occupational Safety and Health Act of 1970.
2. On April 24, 1973, respondent was in violation of section 5(a)(2) of the Act for failing to comply with the safety standards at 29 CFR 1910.133(a)(1), 29 CFR 1910.94(d)(9)(vii) and 29 CFR 1910.145(f)(1)(i).
3. On April 24, 1973, respondent was not in violation of section 5(a)(2) for non-compliance with 29 CFR 1910.107(g)(2) and 29 CFR 1910.212(a)(1).
4. It is appropriate, under section 17(c) and (j) of the Act, to impose a penalty of $35 for non-compliance with 29 CFR 1910.94(d)(9)(vii), and no penalty for non-compliance with 29 CFR 1910.133(a)(1).
ORDER
Accordingly, it is Ordered that:
1. Items No. 1, [*25] 4 and 7 of the citation are affirmed.
2. Item Nos. 3 and 6 of the citation are vacated.
3. The proposed penalty of $85 for Item No. 1 is vacated.
4. No penalty is assessed for Item Nos. 1 and 7 of the citation.
5. The proposed penalty of $35 for Item No. 4 of the citation is affirmed.