TURNER COMPANY
A. SCHONBEK & CO., INC.
OSHRC Docket No. 76-3980
Occupational Safety and Health Review Commission
December 30, 1980
[*1]
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
F. V. LaRuffa, Regional Solicitor, USDOL
Robert P. Wylie, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This case 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"). Following an inspection, the Secretary of Labor ("the Secretary") issued three citations to Respondent, A. Schonbek & Co., Inc. ("Schonbek"). Item 1 of citation 2 alleged that Schonbek willfully violated the machine guarding standard at 29 C.F.R. § 1910.212(a)(3)(ii). n1 Administrative Law Judge Foster Furcolo vacated the "willful" characterization but affirmed this item as an other-than-serious violation of the Act and assessed a penalty of $100. The Secretary petitioned for review of this part of the judge's decision, and review was granted by Chairman Cleary. The only issue raised in the Secretary's petition is:
Whether the Administrative Law Judge erred in falling to affirm the violation of 29 C.F.R. § 1910.212(a)(3)(ii) as willful after finding that the Cowan press was used without a [*2] point of operation guard more than a month after an accident in which an employee's finger was amputated?
We find that Schonbek committed a willful violation.
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n1 Section 1910.212(a)(3)(ii) provides:
§ 1910.212 General requirements for all machines.
(a) Machine guarding --
* * *
(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.
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I
Schonbek manufactures decorative metal lighting fixtures. A compliance officer of the Occupational Safety and Health Administration ("OSHA") inspected Schonbek's plant in Plattsburgh, New York on July 27, 1976. Three citations were issued on August 3, 1976. Citation number 2, item 1, alleged that "on [*3] or about the day of the inspection" a Cowan pneumatic power press used by Schonbek was not equipped with a point of operation guard, contrary to section 1910.212(a)(3)(ii). The Secretary alleged that the violation was willful and proposed a penalty of $1,700. The proposed penalty was later reduced to $1,300 by amendment. In the complaint, the Secretary alleged that the violation occurred "on or about June 24, 1976 [the date of an accident involving the press] through July 27, 1976 [the inspection date]."
Schonbek uses a Cowan pneumatic power press to shape metal used to make lighting fixtures. It is a vertical press operated by compressed air. The operator places a piece of metal in the press and uses a foot treadle to start the ram's downward motion. The press remains closed until the operator opens it by pushing the foot treadle back to its original position. While the machine is in operation, the employee stands approximately one foot or less from the point of operation. Schonbek uses five different dies in the Cowan pneumatic press. Each die is used in the press for about one week or until enough pieces are pressed into the shape made by the die.
On June 24, 1976, the [*4] Cowan press amputated portions of several fingers of a machine operator. The die in use at the time of the accident ("the accident die") lacked a point of operation guard, contrary to the standard at 29 C.F.R. § 1910.212(a)(3)(ii). Immediately after the accident, Schonbek's maintenance employee inspected the Cowan press and found nothing faulty in its operation. The maintenance employee removed the accident die and attached a plexiglass sheet to the front of its upper half. n2 Schonbek did not attempt to guard the points of operation on the other four dies.
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n2 Schonbek's plant manager testified that he regarded the plexiglass sheet as a point of operation guard. According to the compliance officer, however, the plexiglass barrier offered no protection from the point of operation hazard. Rather, it protected the operator from the hazard associated with a piece of metal "popping out" of the die (perhaps with sufficient force to injure the operator). The judge did not resolve the conflict.
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An employee complaint [*5] to OSHA, referring to the June 24th accident, triggered the inspection of Schonbek's plant. The die on the Cowan press during the inspection ("the inspection die") also lacked a point of operation guard, contrary to the requirements of the standard at section 1910.212(a)(3)(ii).
At the hearing, the plant manager testified that before the inspection Schonbek "had a file of information that we had accumulated in regards to various methods of putting proper controls on these pieces of equipment." The plant manager also testified that he had sent two letters to OSHA during 1974. One letter requested information on recordkeeping and the other on posting OSHA regulations at the worksite for the benefit of employees. On cross-examination, the plant manager stated that other than sending these two letters, "we have done very little with respect to contacting OSHA."
In addition, the plant manager stated that there had been a previous inspection of the same plant on April 14, 1975. As a result of that inspection, Schonbek received citations alleging four other-than-serious violations, including one for failure to have point of operation guarding on a table saw. On cross-examination, [*6] the plant manager testified that this prior violation did not make him aware that machinery other than the table saw required point of operation guarding. There is no indication of the date Schonbek purchased the Cowan press for its New York plant or when the press was first used. The plant manager's only reference to the history of the Cowan press was a statement that it was purchased "from our Montreal affiliation, which had that equipment in operation for something in excess of eight years . . . ."
In his decision, the judge found that, in feeding the press, "the operator's hands would at times be in the actual point of operation," that the hazard posed was amputation of the fingers or hands of the operator, and that Schonbek's supervisory personnel "were aware of the hazardous conditions, which could have been easily corrected by barrier guards to two-hand controls." The judge concluded that the violation was not willful because Schonbek "made a reasonable effort to correct the apparently hazardous condition." The judge also found that "[a]t all times concerned, [Schonbek] knew, or with the exercise of due diligence should have known, of the alleged violation" and that Schonbek's [*7] supervisory personnel "were aware of the hazardous conditions."
II
On review, the Secretary asserts that the judge erred in concluding that the violation was not willful because "the record evidence establishes that [Schonbek] was essentially indifferent to the hazard of an employee having a finger amputated by one of the dies." The Secretary contends that Schonbek knew that all five dies presented the same hazard of amputation and decided "to correct only a small portion of the violative condition." According to the Secretary, it is Schonbek's conscious decision to "guard" only the accident die, rather than all five dies, that demonstrates a careless disregard for employee safety.
In its brief on review, Schonbek argues that the judge's decision was the only reasonable conclusion that could have been reached. Schonbek relies upon the judge's conclusion that Schonbek had made a reasonable effort to guard the accident die.
III
The Commission has found a violation to be willful when it is marked by careless disregard of a standard or of employee safety. Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979) (standard); Constructora [*8] Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978) (employee safety). A showing of malicious intent is unnecessary. Tri-City Construction Co., 80 OSAHRC 62/C5, 8 BNA OSHC 1567, 1980 CCH OSHD P24,557 (No. 77-3668, 1980).
In this case, all five dies exposed the machine operator to the hazard of amputation. n3 The judge found that Schonbek was aware of the hazard of amoutation and that the condition "could have been easily corrected by barrier guards or two-hand controls." Yet, during the time between the accident and the inspection, a period of about a month, Schonbek did nothing to guard the inspection die even after the hazard of unguarded points of operation had been brought to its attention. Moreover, Schonbek's maintenance of a file on the protection afforded by two-hand control devices and barrier guards indicates an awareness of the hazard posed by unguarded power presses. Under these circumstances, Schonbek's inaction demonstrates a careless disregard for employee safety. Accordingly, we find that the evidence establishes a willful violation of the Act.
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n3 Schonbek argues that three photos submitted by the Secretary, Ex. C-4, C-5 and C-6, show that because the inspection die was of a different configuration than the accident die, there was almost no possibility of injury at the point where materials were inserted into the inspection die. We disagree. The photos show that the point of operation on the inspection die was large enough for an operator to lose a finger. In addition, the judge found that in feeding the press, "the operator's hands would at times be in the actual point of operation."
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We now assess a penalty for the willful violation. n4 Schonbek does an annual gross volume of business of 2.5 million dollars and employs about 50 persons. The record shows that the gravity of the violation is relatively high. Schonbek's precautions to protect employees were inadequate even after an employee injury. However, as to good faith, the judge stated that he was "very impressed by [Schonbek's] good faith in its efforts to have a good safety and health program . . . ." In addition, the compliance officer stated that there was [*10] a follow up inspection at which time the Cowan press and three similar presses were removed from service pending the acquisition or arrival of two-hand control systems. Under these circumstances, we find that a penalty of $1,000 is appropriate.
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n4 Section 17(j), 29 U.S.C. § 666(i), provides:
The Commission shall have authority to assess all civil penalties provided in this section, giving due respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and history of previous violations.
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Accordingly, the amended citation for willful violation of 29 C.F.R. § 1910.212(a)(3)(ii) is affirmed and a penalty of $1,000 is assessed.
SO ORDERED.