AMFORGE DIVISION, ROCKWELL INTERNATIONAL

OSHRC Docket No. 76-3488

Occupational Safety and Health Review Commission

May 6, 1980

  [*1]  

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Harry T. Quick, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Frank Zinn is before the Commission for review 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").

Respondent, Rockwell International, through its Off-Highway Products Division, Amforge, was engaged in the fabrication of axle products for off-highway vehicles at its manufacturing facility in Chicago, Illinois.   An inspection of the worksite from April 13 through 23, 1976, by a compliance officer of the Occupational Safety and Health Administration resulted in the issuance of a nonserious citation n1 for Respondent's alleged failure to guard a Lake Erie hydraulic press in violation of 29 C.F.R. §   1910.212(a)(3)(ii). n2 The Secretary of Labor proposed a $90 penalty for this alleged nonserious violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Respondent was issued two citations.   Citation 1 alleged a single serious violation.   Citation 2 alleged 74 other than serious violations.   However, Respondent contested only item 33 of the nonserious citation, the machine guarding violation at issue on review.

n2 29 C.F.R. §   1910.212(a)(3)(ii) provides:

§   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.

  [*2]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Administrative Law Judge Zinn affirmed the citation and assessed the proposed penalty.   Respondent filed a petition for discretionary review of the judge's decision and its petition was granted by Commissioner Barnako.   Respondent's petition raises the following issues:

1) Whether the judge erred in concluding that Respondent's unguarded press posed a hazard to Respondent's employees and, therefore, that point of operation guarding was required under 29 C.F.R. §   1910.212(a)(3)(ii); n3

2) Whether the judge erred in finding that point of operation guarding on the press was feasible.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This formulation of the issue raised in Respondent's petition treats as one issue three arguments raised by Respondent:

1) Whether proof of a 'possibility of injury' suffices to establish exposure of an employee to injury as contemplated in 29 C.F.R. §   1910.212(a)(3)(ii);

2) Whether the judge erred in holding that an unguarded machine is, ipso facto, violative of section 1910.212(a)(3)(ii); and

3) Whether, under the facts of this case, a hazard was presented to the operator of the press.

  [*3]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

For the reasons that follow, we affirm the judge's decision.

Unguarded Press and Existence of Hazard

The first issue is whether the judge erred in holding that the unguarded point of operation on Respondent's press posed a hazard to Respondent's employees.

Respondent buys rolled steel stock which it cuts in predetermined lengths.   The steel is heated and forged to form axles. Axles that are not forged straight must either be straightened or scrapped.   Thus, as part of Respondent's salvage operation, bent or uneven axles are straightened in the Lake Erie hydraulic press at issue.   The press was purchased in 1950.   Although it is a large piece of equipment and is capable of exerting up to 100 tons of vertical force, the operation of the press was described as being a precision operation under the direction of a skilled operator.   The press's ram is activated by a "deadman's" handle. When the operator pulls the overhead handle, the ram descends; when the handle is released, the ram ascends without completing the down stroke.   The ram is not cycled to require that it pass a predetermined point before [*4]   it ascends and it is incapable of a repeat stroke.   The maximum achievable descent speed of the ram, about 37 feet/minute or about 7.35 inches/second, is predetermined and cannot be accelerated by the operator.   The operator, however, can control the speed of descent between zero and 37 feet/minute according to the amount of pressure applied to the handle.

Of the five types of axle forgings straightened in the press, two types are straightened while the forgings rest on V-blocks.   The other three types rest on flat blocks. On some operations the operator is assisted by a helper. After the operator or helper determine, by means of a gauge or template, the degree of curvature that must be eliminated from the axle, the ram is lowered until contact is made with the forging. As the ram is lowered, checks are made to insure that the high point of the curve is directly beneath the ram and pointing upward.   If the positioning is correct, pressure is then applied to the high point by pulling on the overhead handle and lowering the ram until either the operator or the helper is satisfied that the curvature has been removed.   This operation is repeated as necessary.

When the forgings are [*5]   being set on the blocks, the operator's or the helper's hands enter the area under the ram. While the placement of the forgings on the blocks customarily takes place before the ram is activated, it is physically possible for the operator to activate the ram with one hand and at the same time place his other hand close to or within the point of operation. Also, certain forgings with pronounced curvatures must be manually held in place by the operator or helper until the ram contacts the forging, lest the high point of the curve roll downward away from the ram before pressure can be applied.

The judge concluded that a violation was established because the evidence demonstrated that it was possible for an employee "to place a hand into the press and to have the press operate at the same time."

Respondent argues that the judge erred in finding a violation because the Secretary failed to prove, by a preponderance of the evidence, the existence of a hazard necessitating point of operation guarding. Respondent asserts that the Secretary must sustain his burden of proving the existence of a hazard by showing that "it is more likely than not that a hazard exists." Respondent asserts that [*6]   the judge imposed a lesser burden by accepting proof of only a "bare possibility of [a] hazard."

The Secretary asserts that the judge's reasoning is correct and in accordance with Commission precedent.   The Secretary rejects the argument that there must be a "reasonable scientific probability" of a hazard before a hazard is established.   Instead, the Secretary argues that case law makes clear that the "possibility of inadvertant contact establishes the hazard; probability or likelihood of injury determine only the degree of hazard" (emphasis in original).   The Secretary submits that the probability of an accident posed by Respondent's press is great both because of the nature of the work, which requires the frequent presence of employees' hands in or near the point of operation, and the fact that certain operations involved substantial coordination between the machine operator and a second employee.

The cited standard, 29 C.F.R. §   1910.212(a)(3)(ii), requires point of operation guarding only on machines the operation of which expose employees to injury.   Since the standard does not presume that every unguarded machine exposes employees to injury, proof of a hazard by a preponderance [*7]   of the evidence is a necessary element of the Secretary's case.   Hughes Bros., Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1831 n.2, 1978 CCH OSHD P22,909, at p.27,715 n.2 (No. 12523, 1978).   Compare Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977).   For the reasons that follow, we conclude that the Secretary has established by a preponderance of the evidence that the operation of Respondent's unguarded press exposes its employees to a point of operation hazard.

The parties stipulated that the press was unguarded and was operated by Respondent's employee.   The Secretary's exhibit shows the proximity of the employee to the press during the operating cycle and shows that only one hand is needed to control the ram's descent. The other hand is left free.   The compliance officer described the operation of the press and testified that the unguarded point of operation could cause an injury because an operator's free hand could become caught between the ram and the forging. The Secretary's second witness, offered as an expert with respect to machine guarding, testified that the operation of Respondent's press exposed the [*8]   operator to a hazard.

Under Commission precedent, the Secretary's evidence establishes a point of operation hazard within the meaning of 29 C.F.R. §   1910.212(a)(3)(ii).   See, e.g., Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHC P24,074 (No. 76-4520, 1979), appeal docketed, No. 80-4013 (2d Cir. January 25, 1980); Kroehler Manufacturing Co., 78 OSAHRC 88/B9 6 BNA OSHC 2045, 1978 CCH OSHD P23,110 (No. 76-2120, 1978); and MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD P23,102 (No. 76-3113, 1978).

Additionally, Respondent's evidence corroborates the employees' exposure to the point of operation hazard. Respondent's safety director testified that when the operator's hand is on the control handle the operator could have his other hand on the item being straightened. The witness further testified that some of the larger pieces of axle forging must be held by hand to prevent them from moving while being straightened.

Furthermore, the proximity, both actual and potential, of the employees' hands to the point of operation during the operation of the press is readily apparent in the movie of the press's operation   [*9]   that Respondent submitted as evidence.   The judge aptly described the conditions depicted in the movie as follows:

When he was helping the machine operator with the larger pieces being straightened, the inspector placed his hands and a gauge within the point of operation of the press upon the forging, at a time when the operator was holding the actuating handle, but when the press was open with the ram up.   The operator, when working alone with the smaller forging, also put a hand and a gauge within the point of operation of the press on the material while the ram was up, and while he had his other hand on the operating lever.

Because of the foregoing, the preponderance of the evidence establishes a point of operation hazard requiring guarding under 29 C.F.R. §   1910.212(a)(3)(ii).   The lack of injuries emphasized by Respondent has probative value regarding the existence of a hazard, but does not rebut the objective evidence of exposure to a hazard. Kroehler Manufacturing Co., supra; 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). Accordingly, the judge's finding that a point [*10]   of operation hazard was posed by the operation of Respondent's press is affirmed.

Feasibility of Guarding

The second issue on review is whether the judge erred in finding that installation of point of operation guarding on the press is "practically and economically" feasible.   Respondent argues that it is the Secretary's burden to prove feasibility and that the Secretary does not do so "without specific evidence related to the machine under scrutiny." Respondent asserts that the Secretary's "simplistic explanations involving a two hand button control model . . . can hardly be said to prove feasibility."

The Secretary argues that, contrary to Respondent's assertion, proof of the feasibility of point of operation guarding is not an element of the Secretary's case.   Rather, the Secretary argues that the burden of proving impossibility of compliance is properly placed on Respondent.   The Secretary further submits that the record in this case in fact "gives ample indication that guarding could be accomplished."

In Hughes Brothers, Inc., supra, we specifically addressed and rejected a contention that, in proving a violation of section 1910.212(a)(3)(ii), the Secretary must [*11]   establish the "feasibility and likely utility of abatement measures." Instead, we held that the burden of proving the impossibility of complying with the standard rests on the employer as an affirmative defense.   Accord, 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); Pass & Seymour, Inc., supra. But see Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978). Accordingly, Respondent's argument that under section 1910.212(a)(3)(ii) the Secretary must prove the feasibility of point of operation guarding is rejected.

Furthermore, Respondent has not established that guarding would be impossible on this machine. In order to establish a defense of impossibility as to either compliance or performance, an employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or 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 P23,330 (No. 15094, 1979).   In the present [*12]   case the Secretary's witness testified that the press could "very easily be guarded" and that "it's not costly to do and . . . (would not) interfere with any productivity." This witness suggested the use of two-hand button controls, an operator-restraint device, a barrier guard, or a presence-sensing device.   In particular the witness suggested the use of a two-hand control system and estimated that, depending on the particular machine, installation of such a device might cost from $75 to $2,000.   On the press at issue he estimated that such a device would cost "somewhere below $500." Respondent's safety manager was unable to state that there are no guards in existence that would permit the press to function "the way it needs to function." Respondent's witness also testified that Respondent's engineering department "could probably fabricate" a two-hand control system, although he believed it would involve "redoing the whole system," and stated that it was "possible" to have a two-hand control device.

Accordingly, Respondent has not proved that compliance with section 1910.212(a)(3)(ii) would be impossible on the press at issue and the citation must be affirmed.

Penalty

We have [*13]   reviewed the judge's application of the penalty criteria in section 17(j) of the Act, 29 U.S.C. §   666(i), to the facts of this case, including the lack of injuries caused by the press's operation, and find the $90 penalty proposed by the Secretary and assessed by the judge to be appropriate.

Conclusion

The judge's decision finding a nonserious violation of the Act for failure to comply with 29 C.F.R. §   1910.212(a)(3)(ii) and assessing a $90 penalty is affirmed.

So ORDERED.