CLARK EQUIPMENT COMPANY

OSHRC Docket No. 7925

Occupational Safety and Health Review Commission

December 22, 1975

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

William S. Kloepfer, Associate Regional Solicitor, U.S. Department of Labor

Kenneth G.Mall, Labor Counsel, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 10, 1975, Judge Ben D. Worcester rendered his decision in this case vacating a citation issued by the Secretary of Labor to the respondent employer, the Clark Equipment Company.   The citation alleged that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq., by failing to comply with 29 CFR §   1910.212(a)(3)(ii).   The Judge held that the Secretary had failed to show exposure of employees to a hazard, that the cited standard is inapplicable to press brakes, and that the Secretary had failed to demonstrate that guarding the point of operation of respondent's press brakes was "either necessary or practical."

On March 19, 1975 former Commissioner Van Namee directed review of the Judge's decision and invited submissions on the following issues:

1.   Whether the trial Judge committed reversible error in concluding that 29 CFR §   1910.212(a) does not require point of operation guarding of [*2]   press brakes?

2.   Assuming arguendo an affirmative answer to the aforesaid question, does the evidence of record establish that respondent was in violation of 29 CFR §   1910.212(a)(3)(ii) under the circumstances of this case?

Submissions by the parties were not limited to the above issues.   Both parties have submitted briefs.

Respondent manufactures heavy construction equipment at its Lima, Ohio, plant. On March 27, 1974, compliance officer Charles Barrett of the Occupational Safety and Health Administration conducted an inspection of respondent's workplace.   The compliance officer there observed five press brakes. These machines are power-operated, and are used to shape or form metal. Metal is placed by the machine operator between upper and lower dies. When the upper die descends, it shapes the metal upon contact.   The points of operation (the places where the two dies meet the metal) were not guarded.   It is undisputed that employees could place their hands or fingers between the dies. If an upper die were to descend upon them, amputation would result.   When placing the unformed metal, the hands of employees come within inches of and directly in front of these dies, though [*3]   respondent does not require employees to place their hands between them during the operating cycle. Respondent's slowest press brake requires six seconds for a full cycle descent of the upper die. Another requires three seconds, and another four and one-half seconds.   The only method of engaging the press, unless an improbable malfunction occurs, is stepping on a pedal fastened to a bar running the length of the machine.

We have held that 29 CFR §   1910.212 is the applicable standard prescribing point-of-operation guarding for press brakes. Irvington-Moore, Div. of U.S. Natural Resources, Inc., No. 3116 (April 7, 1975).   That section reads, in pertinent part, as follows:

§   1910.212 General requirements for all machines.

(a) Machine Guarding -- (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. . . .   Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

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(3) Point of operation guarding.

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(ii) The point of operation of machines whose operation [*4]   exposes an employee to injury, shall be guarded.   The guarding device shall be in conformity with any approriate 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.

Clearly, respondent's employees were exposed to the hazards of amputation. Garrison & Associates, Inc., No. 4235 (April 22, 1975).   Sheet Metal Specialty Co., No. 5022 (April 22, 1975).   The record shows that numerous amputations had occurred at other plants with similar machines. That injuries had not yet occurred in respondent's plant does not negate the existence of a hazard. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). REA Express, Inc. v. Brennan, 495 F.2d 822, 825 (2d Cir. 1974). We therefore find that the points-of-operation of respondent's machines expose employees to danger as contemplated by the cited standard.

The Judge held that the Secretary must bear the burden of showing means of complying with section 1910.212 and that the means are "practical." In doing so, the Judge relied heavily upon National   [*5]    Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1267 (D.C. Cir. 1973). Unlike the situation posed in National Realty, the standard prescribes the performance that is required; i.e., guarding.

On the matter of practicality, respondent contends that the guarding of its press brakes would be difficult.   It contends that guarding would slow and restrict its operation, and require changes in production techniques.   The contention is made although respondent has never tried any guarding techniques.   No standard may be violated simply on the ground that compliance therewith would interfere with production, or create inconvenience for the employer.   Sheet Metal Specialty, Co., supra. If any difficulty in compliance is to be considered, it is something to be weighted against the safety hazard that the requirement is intended to correct.   Cf. Anning-Johnson Co. & Workinger Electric Inc. v. O.S.H.R.C. & Brennan, 516 F.2d 1081 (7th Cir. 1975); Lucas Coal Co. et al. v. Interior Board of Mine Operations Appeal, No. 74-1813 (3rd Circuit, August 29, 1975).   Moreover, an employer's own ability and that of industry may be heavily relied upon the devise suitable   [*6]   ways to conform to the requirements of a standard.   Society of the Plastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, 1309 (2d Cir. 1975, cert. denied 95 S.Ct. 1998 (1975)).

Respondent also makes the related claim of impossibility. Impossibility is, at most, an affirmative defense.   Underhill Constr. Corp., supra, 513 F.2d at 1035. It has not been proved here.   At most, guarding would interfere with the work or necessitate changes in production techniques.   This case is much like Sheet Metal Specialty Co., supra. For example, one of respondent's foremen testified as follows:

A.   We have [gone] through all aspects of finding a suitable device for safeguarding our presses, and, as yet, we cannot come up with one unit.   There is none manufactured to our knowledge that will cover our situation because we are a job shop.   The pieces we bend are from one to two to three different items.   We have many, many set-ups in one single day.   It would continuously hamper our production because every device will have to be set.   Every safety device will have to be set, and it would hinder our production considerably.   As yet, like I say, there is not   [*7]   one unit that would cover our complete operation (emphasis added).

The Secretary's witnesses suggested several guarding methods, but there was no reliable evidence that all of them were physically impossible to use in respondent's plant. Indeed, respondent had never tried any guarding techniques, and displayed a reluctance to alter its mode of production to accommodate safe methods of guarding.

This does not mean, however, that respondent has no 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 (waiver) from the standard under section 6(d) of the Act permitting the use of alternative protection for employees that is as safe as that required by the standard.   Cf. Joseph Bucheit & Sons, Co., No. 295 (July 21, 1972) (Administrative Law Judge); 29 CFR Part 1905.   See also, GTE Automatic Electric, Inc., No. 3113 (June 17, 1975) (separate opinion of Commissioner Cleary). n1

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n1 Further discussion of the issues raised by the parties is contained in Buckeye Industries, Inc., No. 8454, decided this day.

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We therefore find respondent in violation of the Act.   The parties agreed that the proposed penalty of $90 was reasonable.   On this record, we see no reason to disagree with this evaluation.   See Thorleif Larsen & Son, Inc., No. 370 (October 11, 1974).

The citation alleging non-compliance with 29 CFR §   1910.212(a)(3)(ii) is therefore affirmed.   A penalty of $90 is hereby assessed.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Worcester properly decided this case, and his decision (attached hereto as Appendix A) should be affirmed.

In Secretary v. Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608 (1975), and Secretary v. Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975), I set forth reasons why 29 C.F.R. §   1910.212(a)(3)(ii) does not apply to press brakes. Assuming arguendo, however, that the standard is applicable, the Judge's ruling that the complainant did not sustain his burden of proof is correct.

To ascertain the elements of proof, it is necessary and proper to consider the entire regulation published at 29 C.F.R. §   1910.212.   In this regard, subparagraph (a)(1)   [*9]   of the regulation requires that machine guarding "be provided to protect . . . employees . . . from hazards." (Emphasis added.) Subparagraph (a)(2) provides that:

"Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible.   The guard shall be such that it does not offer an accident hazard in itself." (Emphasis added.)

Therefore, it is clear to me that the Judge correctly concluded that the complainant was required to establish that guarding of the respondent's presses was feasible and that the failure to guard them constituted a real, rather than an imaginary, hazard.

Furthermore, review of the record shows that the complainant did not establish these elements by a proponderance of the evidence.   To the contrary, the evidence shows that a press brake manufacturer and a manufacturer of press brake guards had not found a method of installing a guard on the respondent's press brakes. Also, there was evidence that the use of "hard restraints," which were suggested by the complainant's area director could create an additional hazard for employees.

It is noted that one of the case authorities   [*10]   which the Commission cites in this opinion is Secretary v. H. K. Porter, 11 OSAHRC 53 (1974). That opinion held that despite the plain language of 29 U.S.C. §   659(c) granting the Secretary of Labor the authority to rule upon petitions for modification of the abatement requirements of a citation, Congress made an error in writing the Act.   Speaking through Commissioner Cleary, the Commission held (11 OSAHRC 53 at 65):

"The use of the word 'Secretary' in section 10(c) of the Act was inadvertent.   The word 'Commission' was obviously intended."

The effects produced by this case were soon thereafter exorcised when the Commission by rule allowed the Secretary to proceed with abatement modification petitions in the manner specified in the statute - thereby impliedly conceding that "Secretary" means "Secretary." Consequently, reliance at this time upon that case is strange indeed.   Perhaps it's a signal that a change in the membership of the Commission subsequent to the adoption of that rule may produce a revocation thereof and a return to the rule of the H. K. Porter case.

The Commission's further suggestion -- that respondent may petition the Secretary of Labor (under 29 U.S.C.   [*11]   §   655(d)) for a variance from the requirements of this standard is simply a cop out.   Respondent has exercised its statutory authority tome come to this Commission seeking relief from a citation issued by the Secretary of Labor which, in respondent's opinion, is unjust.   It has a right to expect that this Commission will fully adjudicate the matter.   This includes, in cases where a violation is affirmed, the specifics of what must be done to abate the violation so that respondent not only can provide a safer workplace but can also know what needs to be done to avoid future citations for the same offense.

The Commission has not faced up to this.   It simply suggests - as one alternative - that respondent return to the official who cited it for this violation and ask him to grant a variance from the requirements of the standard.   Never mind the 20 months it took to seek a solution before this Commission.   Go back to square one and start again.   Another triumph for bureaucracy!

APPENDIX A

DECISION AND ORDER

Benjamin T. Chinni, for the Secretary of Labor

Kenneth G. Mall, for the respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed [*12]   by the Respondent, Clark Equipment Company, under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 se seq., 29 U.S.C. 651 et seq.) hereinafter called the Act.   On April 19, 1974, a citation was issued alleging that the Respondent had violated section 5(a)(2) of the Act, (29 U.S.C. 654(a) (2)), in that no point of operation guarding was installed on press brakes in use in its manufacturing facility in Lima, Ohio, at the time of an inspection on March 27, 1974.   It was alleged that this was in violation of 29 CFR 1910.212(a)(3)(ii).   The matter came on to be heard in Columbus, Ohio, on September 25, 1974.

The Issues

The Citation served on April 19, 1974, included 48 separate allegations of violation.   Only Item 22 was contested so that all others have become final by operation of law and are not in issue.   It is conceded that there is jurisdiction of the Respondent as an employer under the Act subject to its enforcement provisions.

The Secretary contends that the operation of press brakes without point of operation guarding is, in all circumstances, a violation of section 1910.212(a)(3)(ii).   Clark concedes that there [*13]   was no guarding as alleged but says; (1) that it would be impossible to perform the bending and forming of metal in the press brakes with guards installed; (2) that section 1910.212(a) is a general standard which does not set forth with particularity the requirements which an employer could be expected to meet and; (3) that press brakes are excluded specifically by section 1910.217(a)(5).

The Facts

Section 1910.212 is, as Clark says, a regulation which comments in broad terms upon the general requirements for all machines. Point of operation guarding is required, according to subsection (a)(3)(ii), only when an employee is exposed to injury.   The Secretary's inspector Barrett saw only one machine in operation.   He is a former State Highway employee who, so far as the record reveals, has no special technical qualifications.   The Secretary's area Director, McCann, who also testified, has a degree in Philosophy and practical experience as a press operator but he did not participate in the inspection. He also said that in his opinion guarding of the press brakes was practical.   He didn't know if guarding was feasible.

The evidence for the Respondent is sufficient to rebut the speculative [*14]   conclusions of the Secretary's witnesses.   The Secretary has not shown by a preponderance of the evidence that guarding is either necessary or practical.   Where the evidence shows only that an injury is possible, not that it is likely, and there was no evidence adduced by the Secretary showing that point of operation guarding could in fact be installed so that there is no showing that protective devices are necessitated, either because of likelihood of injury or by custom in industry, there is a failure to sustain the burden of proof. Secretary v. Smoke-Craft, Inc., 8 OSAHRC 597 (1974). In this case the Review Commission said (at 599) that the existence of a hazard itself does not establish a violation.

Neither of the witnesses for the Secretary is a mechanical engineer.   Their conclusions that point of operation guarding was both practical and necessary was based upon assumptions, not knowledge.   Barrett, the inspecting officer admitted that the three methods he mentioned, electronic, physical restraints and barriers, would have to be tried before it could be determined whether they were practical and possible solutions.   A citation, whether it is based upon the general [*15]   duty clause or a standard promulgated by the Secretary, cannot be affirmed if it is based upon speculation.   The Act does not impose strict liability.   A citation cannot be sustained solely on the basis of what is possible.   The alleged duty of the employer must be shown to be an achievable one.   National Realty and Construction Co., Inc., v. Secretary of Labor, 489 F.2d 1257, 1265 (1973).

Conclusions of Law

Upon consideration of the facts, the applicable statutory and case law, the scholarly brief filed in behalf of the Secretary and the memorandum of law filed in behalf of Clark, I am constrained to find that:

1.   The Secretary of Labor has failed to adduce reliable, probative and credible evidence that the Respondent's employees were exposed to a hazard within the meaning of 29 U.S.C. 654(a)(2), (Section 5(a)(2) of the Act) as alleged in the Citation.

2.  

3.   The Respondent did not violate 29 C.F.R. 1910.212(a)(3)(ii) as alleged in Item [*16]   22 of the Citation and in paragraph V of the Complaint.

Order

It is ORDERED that Item 22 of the Citation dated April 19, 1974, and so much of the proposed penalty of the same date as applies to Item 22 be vacated.

BEN D. WORCESTER, Judge, OSAHRC

Dated: March 10, 1975

Hyattsville, Maryland