Graphic Packaging International, Inc.

Plain-English summary

Graphic Packaging operated printing presses used to make cardboard packaging. OSHA cited the company after six rotating press shaft ends were left unguarded during press alignment and doctor-blade cleaning. The judge found that employees worked within inches of the exposed shafts and that plant supervisors knew about the condition. The standard did not require the guards to be bolted in place, but it did require them to remain installed while the shafts rotated. The judge affirmed the litigated item as serious and assessed a $1,500 penalty. Two previously settled items were also affirmed, including one with a $2,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.219(c)(4)(i)
• Outcome: The unguarded rotating-shaft item was affirmed as serious with a $1,500 penalty; two settled items were also affirmed.
• Key point: Guards that met the standard while installed did not protect employees when workers removed them and worked within inches of rotating shaft ends.

Full text (OSHRC public release)

                                           United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 05-1735
Graphic Packaging International, Inc.,
Respondent.

Appearances:

      Paul Spanos, Esq., U. S. Department of Labor, Office of the Solicitor, Clev eland , Ohio
      For Com plainant

      Robert A. Dimling, Esq., Frost Brown Todd, LLC,Cinc innati, O hio
      For Respond ent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                       DECISION AND ORDER

      Graphic Packaging International, Inc. (Graphic), is a corporation engaged in printing and

cartonboard manufacturing in Cincinnati, Ohio. The Occupational Safety and Health Administration
(OSHA) conducted an inspection of Graphic’s facility in Cincinnati on September 27 and 28, 2005.
As a result of this inspection, respondent was issued two citations. Graphic filed a timely notice
contesting the citations and proposed penalties. A hearing was held in Cincinnati, Ohio, pursuant
to Simplified Proceedings on January 26, 2006. Prior to the hearing, the parties settled Citation
No. 1, Item 1 and Citation No. 2, Item 1. Remaining at issue are the violative conditions alleged in
Citation No. 1, Item 2 and the proposed penalty of $2,500.00. For the reasons that follow, Citation
No. 1, Item 2 is affirmed in part and a penalty of $1,500.00 is assessed.
Background
On the day of the inspection, respondent operated two press lines that form and print
cardboard packaging. The press line at issue consists of eight press units. Each unit performs a
slightly different function and can be removed and reconfigured. During the inspection, the
Secretary’s compliance officer, Gaye Johnson, observed six of the eight units without guards over
the shaft ends. She observed an employee of respondent placing a guard onto a shaft end while the
shaft was rotating. The guard slid into two flanges which held the guard in place over the rotating
shaft end. The guard was placed over the shaft end during the process of cleaning the doctor blade
of the press. Respondent had just completed the bumping process.
On the day of the inspection, the press line ran at a lower than normal speed while the
operators configured and aligned the press units. In order to ensure that each of the press units was
properly aligned and ink was being correctly applied to the packaging, the newly inserted press units
were “bumped” into position. When “bumping,” the operators use a heavy, 3 foot-long steel bar to
tap the end of the shafts of the press units to ensure that they are aligned and transferring ink
correctly. Respondent admitted the guards on the unit shaft ends were removed during the bumping
process.
Discussion
Alleged Violation of 29 C.F.R. § 1910.219(c)(4)(i)
The Secretary has the burden of proving, by a preponderance of the evidence, a violation of
the standard.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or, with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).

   The Secretary in Citation No. 1, Item 2, alleges that:
   Unguarded projecting shaft end(s) did not present a smooth edge and end and
   projected more than one half the diameter of the shaft:

            (a) On or about September 27, 2005, the guard for the 8 projected shaft ends
            on Presses such as Press Line #1 that projected more than one half the
            diameter of the shaft was inadequate in that the cup guard only slid into place
            and was not bolted in place to prevent operators from removing the guard
            while the projecting shaft was rotating to bump the press.

   The standard at 29 C.F.R., § 1910.219(c)(4)(i) provides:


                                             -2­
            (4) Projecting shaft ends. (i) Projecting shaft ends shall present a smooth
            edge and end and shall not project more than one-half the diameter of the
            shaft unless guarded by non rotating caps or safety sleeves.

    This standard is clearly applicable. The projecting shaft ends do not present a smooth edge.

The shaft was not a single shaft. One portion of the shaft had a larger ring. The shaft end projected
3 e inches and the shaft diameter was 3 inches.
The standard at 29 C.F.R. § 1910.219(c)(4)(i) requires such shaft ends to be guarded by non
rotating caps or safety sleeves. At issue is whether Graphic complied with the terms of this standard.
While the doctor blades were being cleaned during the inspection at least six of eight shaft
end guards on one press line had been removed exposing rotating shaft ends. Mr. John McKeough,
respondent’s plant manager, confirmed that six guards had been removed during start-up of the run.
This included the bumping process followed by cleaning of the doctor blades while the press was
running and the shafts were rotating. He testified that during a typical start-up, the guards would not
be put back until all tweaks and adjustments were completed. He stated that once all the adjustments
are done, the guards are put back in place. He admitted at hearing it was expedient, that is,
advantageous, for the operator to remove six of the eight guards at once to evaluate and adjust the
units of the press before running at normal speed. It is not essential, according to Mr. McKeough,
that all six guards be removed from the shafts at the same time. One could be removed, the
adjustment made, and the guard replaced before removal of the next guard. He also testified that
respondent has redesigned the guards so they are interlocked with the machines. If the guards are
removed, the machine stops. The bumping process is now done while the machine is stopped and
the shafts are not rotating.
On the day of the inspection, respondent failed to comply with the terms of the standard in
that six projecting shaft ends on the press line were not guarded by non rotating caps or safety
sleeves during the bumping process and while the doctor blades were being cleaned during start-up
of the run.
Also at issue is whether respondent complied with the terms of the standard where the eight
guards only slid into place and were not bolted in place to prevent operators from removing the guard
while the projecting shaft was rotating to bump the press. No evidence was presented that bolting

                                             -3­

guards in place offers any greater protection for employees than the method used by Graphic.
Respondents’ guards slid vertically into 6.5 inch deep flanges. While the guards could be lifted from
these flanges, it is obvious from a review of all the evidence that these guards could not be easily
inadvertently displaced from these flanges.
Bolting the guards in place would not prevent removal during the bumping process. It would
merely slow down the operation while providing no protection of the employee during the bumping
operation. The evidence is clear that the end of the shaft must be exposed during the bumping
operation. The operator must have access to the shaft end to bump it. This is true whether the shaft
is rotating, as during the inspection, or stopped, as is now done by Graphic.
I find that failure to bolt the guards in place is not a violation of this standard. The standard
requires only that the rotating shaft ends be guarded by non rotating caps or safety sleeves. The
standard does not require that the caps or safety sleeves to bolted. Respondent’s guards, while in the
flanges, qualify as non rotating caps and safety sleeves. By choosing to use these guards and flanges,
Graphic did not fail to comply with the terms of the standard as long as these guards remained in
place. Once the guards were removed and the shafts rotated during the bumping process and during
cleaning of the doctor blades, respondent did fail to comply with the terms of 29 C.F.R. § 1910.219
(c)(4)(i).
Complainants’ video of Graphic’s employee cleaning the doctor blade clearly shows the
employee working within the zone of danger of contacting the unguarded rotating shaft ends.
(Exhibit C-1). Employees reach into the press line, their hands and arms passing within a few
inches of the unprotected shaft. This work is done while the shaft continues to rotate.
Respondent admits the guards are removed during the bumping process. The video in
Exhibit C-1 shows guards removed during the process of cleaning the doctor blades. Respondent
argues that given these conditions, the shaft ends are still not unguarded. Graphic submits that the
shaft ends are blocked from contact by employees by a metal, bar 16 inches from the body of the
press, and an ink tank and pumping assembly beside each press unit. This argument is rejected. The
video shows that the employee cleaning the doctor blade reached beyond the bar and past the ink
tanks and pumping assembly into the body of the press line to perform his work. In doing so, his

                                              -4­

hand and arm came within a few inches of contacting the rotating shaft, passing parallel to the shaft
as he placed his hand inside the body of the press line.
The employee then placed the guard over the shaft end while the shaft continued to rotate.
He held the expanded metal guard with this bare hands between the bottom of the guard and the
spinning shaft end as he lowered the guard into place. This action once again brought his hands
within a few inches of contacting the end of the shaft. The guard also blocked his view of the shaft
as he placed the guard into the flanges. Respondent’s plant manager, John McKeough, testified
regarding the dimensions of the shaft and the guards. The shaft ends projected 3 5/8 inches and the
diameter of the shaft was 3 inches. The guard was 7 inches deep, 10-12 inches wide and 13 inches
high. Simple measurement dictates that while placing the guard over the shaft, the employee’s
unprotected hands came between 3.5 and 4.5 inches from the spinning shaft end. The work area was
next to the rotating shaft ends. The metal bar and the ink tank and pumping assembly were below
that area. They offered no protection against contact with the hazard. The shaft ends were
unguarded and employees were exposed to the hazard by working within inches of the violative
condition.
Respondent had actual knowledge of the violation. Its plant manager and floor supervisor
observed the six unguarded shaft ends during the inspection shown in the video in Exhibit C-1. The
floor supervisor explained the operation to the compliance officer and the reasons the shaft was
unguarded. He stated the guard must be off the shaft during the bumping process. The video shows
the employee cleaning the doctor blade after the bumping process was completed. The press was
up and running. The shaft was not involved in the cleaning of the blade. Employees continued to
work within inches of the unguarded rotating shaft even after the bumping process was completed.
Respondent’s plant manager and floor superintendent observed this condition and did nothing to
correct it. The video also shows the employee replacing the guard with his bare hands within 4.5
inches of the shaft. Respondent’s supervisors were present during this process and did nothing to
protect the employee. They had actual knowledge of the violative condition and employee exposure.
Respondent raised no defense of infeasibility or impossibility of guarding the shafts during
any phase of the operation of the press line. Graphic argued that the guards must be removed while
the shafts rotate during the bumping process. Mr. McKeough, its plant manager, however, testified

                                            -5­

that the bumping process is now performed while the machine is stopped and the shafts are not
rotating. No evidence was produced by respondent as to the reasons the shafts were unguarded while
the doctor blades were cleaned.
Respondent violated 29 C.F.R. § 1910.219(c)(4)(i) during the bumping process and during
the cleaning of the doctor blade while the guard was not in place. This was a serious hazard that was
likely to cause serious physical harm, including laceration. I find that there was no violation of the
standard during the operation when the guards were in place in the flanges. No bolting of the guards
to the machine or floor is required by this subsection of the standard.
Section 9 (a) of the Act requires a citation to describe with particularity the nature of the
violation. It must contain a description of the violation and the standard violated. This case was
heard under Simplified Proceedings. Counsel for both parties participated in the pre-hearing
conference on January 20, 2006. Respondent did not raise the affirmative defense of lack of
particularity during that conference. Respondent failed to plead the defense of lack of particularity
or fair notice throughout this proceeding. Arguably the issue was tried by consent of the parties.
In determining whether a citation item is sufficiently particular in describing and alleged
violation, the Review Commission considers the totality of circumstances. In Todd Shipyards
Corp., 5 BNA OSHC 1012, 1976-77 CCH OSHD ¶21,509 (Docket No. 8500, 1977) the Commission
stated;

      The question of whether a citation gives fair notice so that an employer may abate or
      contest as he chooses depends upon factors other than the language of the citation
      itself; it also may include the circumstances of the compliance inspection and the
      employer’s familiarity with his own business.

      Here, the plant manager and the floor supervisor observed the violative conditions shown in

the video with the compliance officer during the inspection. They explained to the inspector the
bumping and doctor blade cleaning operations. The floor supervisor gave a detailed explanation for
removing guards during the bumping process. Both were intimately familiar with the operation of
the press line. Both knew of the concerns of the compliance officer relating to the unguarded shaft
ends. The citation, read as a whole relates to unguarded rotating shaft ends. It directly relates the
lack of guarding to the bumping process. It is uncontroverted that bumping only occurs when the

                                               -6­

guards are removed. During the inspection, bumping occurred when the shafts were rotating.
Respondent now argues surprise and lack of adequate notice. It is clear, however, from the totality
of evidence and a full reading of the entire citation that the citation contained sufficient particularity
to give respondent fair notice of the alleged violation, the location and the process involved.
The citation may have been inartfully worded. This employer, however, had a fair notice of
the nature of the violation, given its familiarity with its own operations, business practices and the
circumstances surrounding this inspection. The citation was sufficiently particular to provide fair
notice of the alleged violation to the Respondent.
Penalty
Under § 17(j) of the Act, in determining the appropriate penalty, the Commission must give
due consideration to the size of the employer’s business, the gravity of the violation, the good faith
of the employer, and the history of previous violations.
Respondent is a large employer with thirty-nine plants. It has two press lines at this facility.
On the press line at issue, only three employees are working each shift. Six of the eight guards on
this press line were not in place during the inspection. The hazard of unguarded rotating shafts
would be serious injury such as laceration. The company exhibited limited good faith by providing
guards for the shafts. This is partially negated by removing them during bumping and cleaning the
doctor blades while the shafts are rotating. It was common practice for respondent to remove the
guards during these processes. Multiple guards removed at one time was done as a matter of
expediency. No evidence of past history was presented in support of the proposed penalty.
Considering all factors, a penalty of $1,500.00 is appropriate for Citation No. 1, Item 2.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is ORDERED:
1. Citation No. 1, item 1, is affirmed as a serious violation and a penalty of $2,500.00
is assessed.

                                               -7­
  2.     Citation No.1, item 2, the alleged violation of 29 C.F.R. § 1910.219(c)(4)(i), is
         affirmed as a serious violation and a penalty of $1,500.00 is assessed.
  3.     Citation No. 2, item 1, is affirmed.




                                                       /s/ Stephen J. Simko, Jr.
                                                       STEPHEN J. SIMKO, JR.
                                                       Judge

Date: March 20, 2006

                                          -8­