GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

OSHRC Docket No. 76-3270

Occupational Safety and Health Review Commission

November 26, 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

Wallett Bancroft Rogers, GENERAL MOTORS CORPORATION, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Frank B. Zinn 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 Zinn found that Respondent, General Motors Corporation, Frigidaire Division ("Frigidaire"), had violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by placing the two-hand control buttons of a power press too close to the die area of the machine. The judge therefore affirmed a citation alleging that Frigidaire failed to comply with the standard at 29 C.F.R. §   1910.217(c)(3)(vii)(c). n1 We affirm the judge's decision.

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n1 This standard provides:

§   1910.217 Mechanical power presses.

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(c) Safeguarding the point of operation -

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(3) Point of operation devices.

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(vii)(c) The safety distance (D[s]) between each two hand control device and the point of operation shall be greater than the distance determined by the following formula:

D[s] = 63 inches/second X T[s];

where:

D[s] = minimum safety distance (inches); 63 inches/second = hand speed constant;

and

T[s] = stopping time of the press measured at approximately 90 degrees position of crankshaft rotation (seconds).

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Frigidaire's laundry equipment manufacturing plant in Moraine, Ohio, contains a large "Minster" mechanical power press. An employee uses the press by taking a large metal panel and placing it in the die area of the machine. The employee presses two buttons, one with each hand, in order to activate the press.   The slide of the press comes down on the panel with great force, forming the panel into the desired shape.   The slide then returns to its starting point, completing one press cycle.

The two-button system is intended to protect the operator of the machine. When the operator releases one or both of the buttons, a brake within the machine stops the movement of the press.   In this way, the operator should be protected from placing his hands in the die area of the machine while the press is still moving.

On June 14, 1976, a compliance officer of the Occupational Safety and Health Administration ("OSHA") inspected Frigidaire's plant and conducted a series of tests on the Minster press to determine whether the double button system was placed a sufficient distance from the die area.   The compliance [*3]   officer used a micromenex stop time measuring device to measure the time it takes the slide to stop after the control buttons are released at approximately the 90 degrees position of the crankshaft. The device includes a photoelectric grid, photoelectric sensor, and timer.   The compliance officer placed the photoelectric sensor on the stationary frame of the machine. The photoelectric grid was then placed on the side of the machine's slide. The 90 degrees position is approximately halfway down the frame of the slide, and the stopping time is greatest at this position.   Through a series of tests of stopping times, the compliance officer determined the 90 degrees crankshaft position of the machine and marked that spot on the frame. The machine was put into motion, and when the edge of the slide coincided with the 90 degrees crankshaft position marked on the frame, the person conducting the test took his hands off the dual buttons to stop the slide. The release of the buttons also initiated the timer and sensor that started scanning the grid. When the slide stopped, the sensor scanning the grid would shut off the timer, which then provided a readout of the time required for the [*4]   machine ram to stop its descent.

The tests revealed that the press stopped within 0.60 to 0.63 seconds when the control buttons were released at approximately the 90 degrees position of the crankshaft rotation.   Using these measurements in the formula provided in 29 C.F.R. §   1910.217(c)(3)(vii)(c), the compliance officer determined the minimum safety distance should be 39.69 inches.   The compliance officer measured the distance from the buttons to the die area of the machine with a "steel type measuring device." He measured the path along which an operator's hand would have to move to go from the control button into the point of operation. According to the compliance officer's measurements, the buttons were 25 inches from the die area.   Because the actual distance was less than the minimum safety distance computed from the formula, the Secretary of Labor ("Secretary") cited Frigidaire for failing to comply with 29 C.F.R. §   1910.217(c)(3)(vii)(c) and proposed a penalty of $800.

II

Frigidaire argued to the judge that (1) the cited standard does not apply to this machine, (2) the time measurements made by the compliance officer were unreliable because they contained so many margins [*5]   of error, and (3) the compliance officer's measurement of the distance between the buttons and the die area was incorrect.

Frigidaire contended that 29 C.F.R. §   1910.217(c)(3)(vii)(3) only applies to a "hands-in-die" machine and not to a "no-hands-in-die" machine. This argument is based on the history of the standard's promulgation.   Originally, the Secretary promulgated at 29 C.F.R. §   1910.217 a standard containing various safety requirements for mechanical power presses. n2 One of the original provisions would have required that all mechanical presses be modified so that by August 31, 1974, all operations on such presses would be "no-hands-in-die" operations.   After receiving a petition from industry groups contending that the "no-hands-in-die" requirement was infeasible, the Secretary modified the "no-hands-in-die" provisions but added a series of additional safety measures for mechanical presses. n3 See generally AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975). Among these additional measures was the double button requirement cited in this case.   Respondent contends that the changes made in 1974 were a quid pro quo for the elimination of the "no-hands-in-die"   [*6]   requirement, and that therefore the additional requirements were not intended to apply to presses operated as "no-hands-in-die" presses.

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n2 37 Fed. Reg. 22285 (1972).

n3 39 Fed. Reg. 41842 (1974).

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Frigidaire also argued that its Minster press was a "no-hands-in-die" press, relying on evidence that employees operating the press were issued tools with which they could place pieces into the die and remove pieces from the die without putting their hands in the operating area.   Employees were instructed not to place their hands into the die area and signed statements that they had received and understood these instructions.   Furthermore, any employee who placed his or her hands in the die area was reprimanded and, in some cases, suspended.

Frigidaire further argued that, even assuming that the cited standard does apply to this machine, the tests which the compliance officer conducted to determine the minimum safe distance were unreliable for several reasons.   First, the manufacturer of the micromenex device used by the [*7]   compliance officer recognized that the device had a margin of error of up to eighty milli-seconds.   Second, much of the test depended on the tester seeing when the press had reached the 90 degrees position and releasing the dual buttons in order to activate the testing device.   Third, the photoelectric sensor and grid could not be properly calibrated to a known constant.   Fourth, the compliance officer did not know the strokes per minute of the Minster press.   Finally, Frigidaire notes that the measuring device was on loan from the manufacturer and was not certified by OSHA for measuring purposes.

Frigidaire indicates that each of these problems with the measuring methodology has a certain margin of error. Thus, Frigidaire argues that some of the measuring problems such as the tester starting the testing device when he sees the press at the 90 degrees position and the calibration of the device potentially have very large margins of error and that a miscalculation of one tenth (0.1) of a second can produce a difference in the minimum safety distance of over six inches.   Frigidaire contended that when all the possible margins of error are considered the Secretary cannot be sure, within [*8]   ten inches, what the correct minimum safety distance of this particular press should be.

Furthermore, Frigidaire contended that the compliance officer incorrectly measured the distance between the buttons and the die area.   Frigidaire maintained that the officer measured a hypothetical straight line between the buttons and the die, a path that would take the operator's hands through the machine. The correct path to measure, according to Frigidaire, would be horizontally out from the buttons, straight down, and into the die area.   Frigidaire maintained that this measurement is 36 - 1/4 inches.

The Secretary argued before the judge that a fair reading of section 1910.217 indicates that it applies to both "hands-in-die" and "no-hands-in-die" machines. In any event, the Secretary contended that the cited Minster press was operated as a "hands-in-die" press, citing testimony by the compliance officer that the operator of the machine repeatedly placed his hands into the die area during the inspection.   Finally, the Secretary defended the compliance officer's method of determining the minimum safety distance. The Secretary pointed out that Frigidaire had offered to tests of its own   [*9]   to show that the stopping time was less than 0.60 to 0.63 of a second and that the minimum safety distance is less than 39.63 inches.

Administrative Law Judge Frank B. Zinn found that Frigidaire had violated 29 C.F.R. §   1910.217(c)(3)(vii)(c).   In doing so, Judge Zinn "accept[ed] as reasonable the testimony of the compliance officer, Mr. Murphy, with regard to his tests and measurements of the time and distance involved in stopping of the machine and of travel of the operators hands from controls to point of operation." Judge Zinn also found the press was, in fact, a "hands-in-die" operation based on evidence showing the inadvertent placing of hands in the machine. He therefore concluded that the standard at 29 C.F.R. §   1910.217 applied to the cited machine. The judge assessed the proposed penalty of $800.

Frigidaire petitioned for review of the judge's decision, and Chairman Cleary granted the petition.   On review, the parties make essentially the same arguments as they made before the administrative law judge.

III

The plain language of section 1910.217 demonstrates that its requirements apply to both "hands-in-die" and "no-hands-in-die" power presses.   Section 1910.217(c)(1)(i),   [*10]   which contains the general requirements for point of operation protection, states without qualification that "[i]t 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." (Emphasis added) Section 1910.217(a)(5) n4 specifically excludes certain machines from having to comply with the substantive requirements of section 1910.217.   "No-hands-in-die" operations are not mentioned in this section as being specifically excluded.   This indicates that presses used in "no-hands-in-die" operations are not excluded from complying with section 1910.217.

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n4 29 C.F.R. §   1910.217(a)(5) provides:

1910.217 Mechanical power presses.

(a) General requirements.

* * *

(5) Excluded machines. Press brakes, bydraulic and pneumatic power presses, bulldozers, hot bending and hot metal presses, forging presses and hammers, riveting machines and similar types of fastener applicators are excluded from the requirements of this section.

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The conclusion that the cited standard applies to "no-hands-in-die" operations is further enhanced by examining 29 C.F.R. §   1910.217(c)(5), which was promulgated as part of the 1974 amendments to section 1910.217.   That section provides:

1910.217 Mechanical power presses.

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(c) Safeguarding the point of operation -

* * *

(5) Additional requirements for safeguarding; Where the operator feeds or removes parts by placing one or both hands in the point of operation, and a two-hand control . . . is used for safeguarding:

[three additional requirements are bescribed].

This section provides additional safeguards for use when the press is used in a "hands-in-die" operation.   The clear implication is that the remaining requirements of section 1910.217, including section 1910.217(c)(3)(vii)(c), apply to both "hands-in-die" and "no-hands-in-die" mechanical presses. n5

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n5 In fact, §   1910.217(c)(4) specifically provides that "[h]and feeding tools are intended for placing and removing materials in and from the press.   Hand feeding tools are not a point of operation guard or protection device and shall not be used in lieu of the 'guards' or devices required by this section." (Emphasis added)

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A fair reading of section 1910.217 makes it abundantly clear that the section applies to all mechanical presses except those explicitly excluded.   "No-hands-in-die" presses are not explicitly excluded.   Even if one examines the history of the section, no indication that it was intended to apply only to "hands-in-die" operations appears.   Instead, the history shows that the section was intended to mean what it says and demonstrates that the Secretary's general intent was to strengthen the safety requirements for mechanical power presses. See AFL-CIO v. Brennan, supra, 530 F.2d at 119 & n. 32. Frigidaire's argument that it need not comply with these strengthened requirements if it complies with a requirement that the Secretary revoked is clearly without merit.

IV

Frigidaire argues that the micromenex test conducted by the compliance officer and the compliance officer's measurement of the distance between the buttons and the die area were unreliable.   However, the judge found Frigidaire's arguments unpersuasive and concluded that the Secretary had carried his burden of proving his case by [*13]   a preponderance of the evidence. n6 After careful review of the record, we are similarly unpersuaded that Frigidaire's arguments have merit.

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n6 Armor Elevator Co., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (Nos. 425 & 426, 1973).   See also Olin Const. Co. v. OSHRC, 525 F.2d 464 (2d Cir. 1975).

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First, the 80 millisecond margin of error in the micromenex measuring device creates at most, a difference of approximately five inches in the calculation of the safety distance. This margin of error may vary in either direction and thus it is as likely to be unfavorable as it is favorable to Frigidaire.   Moreover, even if the minimum safety distance is reduced by five inches, the actual distance still falls substantially short of the minimum safety distance required by the standard.

Second, Frigidaire claims that the margin of error associated with sighting the point at which the 90 degrees position of crankshaft rotation was reached and starting the measuring device was crucial.   However,   [*14]   two aspects of this method would, if anything, favor Frigidaire.   The argument assumes that, because of the slowness of human reaction time, the person performing the test started the measurement later than he should have, at the time when he could perceive the slide passing the mark on the frame and not when it actually had passed the mark.   However, this would result in a lower time measurement and a smaller minimum safety distance. In addition, since the machine was most difficult to stop at the 90 degrees crankshaft position, if the tester removed his hands from the buttons either before or after the press had gone past the 90 degrees position, the press would stop moving in a shorter time, again leading to a smaller minimum stopping distance.

Third, Frigidaire's Safety Engineer, relying on literature he brought to the hearing, testified that certain components, the sensor and the grid, could not be calibrated.   Even if we accept this testimony, the Safety Engineer did not testify that the inability to calibrate these components of the device necessarily results in a significant margin of error.

Fourth, although Frigidaire asserted that knowledge of the strokes per minute was [*15]   essential to an accurate measurement, closer inspection of the standard containing the equation reveals that it is not.   Knowing the strokes per minute of a machine merely gives the time of one complete cycle. The equation, however, requires that the time it takes for the press to stop from the 90 degrees crankshaft position be measured. In this equation, the number of strokes per minute is irrelevant. n7

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n7 The strokes per minute of the machine could be relevant if the machine was equally difficult to stop throughout each phase of the cycle. If this was true, then one could find the minimum safety distance by taking one quarter of the time for one complete cycle (since the 90 degrees crankshaft position is one quarter of an entire 360 degrees cycle) and putting the figure in the equation. If one used this method with this particular machine, the minimum safety distance would be 25.2 inches.

However, this method is based on a faulty assumption: that the machine is equally difficult to stop throughout each phase of the cycle. According to the compliance officer, the machine is most difficult to stop when it is set at the 90 degrees crankshaft position.   This is why the standard specifically requires that the stopping time be measured from that point.

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Fifth, the record indicates that OSHA does not certify any measuring devices.   Therefore, Frigidaire's argument that OSHA had not certified the measuring device used in this case is inapposite.

Finally, contrary to Frigidaire's claim, the compliance officer clearly testified that he did not measure a straight line between the buttons and the die area.   Rather he measured the actual path that the operator's hands would have to follow. n8 The photographs introduced as evidence by the Secretary also demonstrate that the path of his measurement was reasonable.

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n8 The compliance officer testified as follows:

Q.   Did you measure the distance between the button and the point of operation?

A.   Yes.

Q.   With what?

A.   With a steel type measuring device.

Q.   Did you measure on a straight line?

A.   No, sir.

Q.   All right.   What did you measure?

A.   I measured the distance, the curb (sic) around the part of the press in which the operator's would have to move if they took it off the two-hand control.

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Therefore, we find Frigidaire's attempts to attack the accuracy of the Secretary's test unconvincing.   Also, Frigidaire has failed to submit any evidence of its own testing which would indicate the minimum safety distance was less than 39.69 inches.   We therefore conclude that Frigidaire failed to comply with the cited standard.   After considering the factors enumerated in section 17(k) of the Act, 29 U.S.C. §   666(j), we affirm the judge's assessment of an $800 penalty as reasonable.

Accordingly, the judge's decision is affirmed.   SO ORDERED.