Dentsply US Prosthetics, LLC

Plain-English summary

Dentsply US Prosthetics manufactured dental products using an automatic press with a Lexan shield that left an opening near the machine's moving parts. A trainee who had worked at Dentsply for about two weeks was operating the press without direct supervision when the machine crushed his hand, resulting in the loss of three fingers. The judge found that employees working close to the opening were exposed to the press's point of operation and that instructions to keep hands out of the machine did not substitute for physical guarding. Dentsply knew or should have known about the plainly visible gap. Its unpreventable employee misconduct defense failed because the inadequate guard, not employee conduct, created the violation, and the trainee had been left unsupervised. The judge affirmed the serious violation and assessed a $7,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1)
• Outcome: Serious machine-guarding violation affirmed; $7,000 penalty assessed.
• Key point: Instructions and training do not replace the physical guarding required for an automatic press when employees work near exposed moving parts.

Full text (OSHRC public release)

Cerveny, John X.
Normal
Jonathan Walter
2
1
2017-08-03T16:13:00Z
2017-10-25T12:45:00Z
2017-10-25T12:45:00Z
20
4326
24661
OSHRC
205
57
28930
16.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

�������������

SECRETARY OF LABOR,

Complainant,

v.

� OSHRC DOCKET NO. 16-0140

DENTSPLY US PROSTHETICS,
LLC,

���

�������������������������
Respondent.

�

Appearances:

Oscar L. Hampton
III, Esq., Regional Solicitor, Matthew R. Epstein, Esq., Office of the Regional Solicitor, Philadelphia, PA

����������� For the
Complainant

John M. Gilman, Esq., York, PA

����������� For the
Respondent

Before: ����������� Carol A. Baumerich

����������� Administrative Law Judge

DECISION AND ORDER

����������� Dentsply
US Prosthetics, LLC (Dentsply or Respondent) manufactures dental products at
470 College Avenue, York, PA (the Facility). �
Following a reported injury, the Occupational Safety and Health
Administration (OSHA) inspected the Facility on June 23, 2015. � As a result of the
inspection, a Citation and Notification of Penalty (Citation) alleging a
violation of 29 C.F.R. � 1910.212(a)(1) and proposing a $7,000.00 penalty, was
issued. �

Dentsply timely contested the
Citation, bringing the matter before the Occupational
Safety and Health Review Commission (Commission) pursuant to section 10(c) of
the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678 (the Act).
� A hearing was held in York, PA on
November 17 and 18, 2016. � Both parties
filed post-hearing briefs. � For the
following reasons, the Citation is affirmed and a
$7,000 penalty is assessed.

JURISDICTION

����������� Dentsply is
an employer engaged in a business affecting interstate commerce within the
meaning of section 3(5) of the Act. �
(Stip. A, B, F; Answer at 1.) � Dentsply
admitted that it employed the injured employee and that the Commission has
jurisdiction over this proceeding. � (Answer at 1; Tr. 49-51.) � Based upon the parties� stipulations and the record,
Dentsply is a covered business and the Commission has jurisdiction.

FACTUAL BACKGROUND

����������� Dentsply
makes acrylic teeth and other dental products. �
(Tr. 17, 171-72, 175.) � To do so,
employees use various molds and presses. �
(Tr. 17-18; Jt. Ex. 2.) � Some
presses are manual and others are automatic. � (Tr. 18, 34.) �
On June 17, 2015, an employee suffered an injury while working at one of
the Facility�s automatic presses referred to as Rotary Press No. 26 (�Press
26�). [1] � (Tr. 22, 124, 212-13.) � To use Press 26, the employee first assembles
a mold and then manually places it into the machine�s loading area. � (Tr. 17, 20-22, 26, 28, 39, 211, 269-70.) � A sensor detects the mold and a �hook arm� activates
automatically to push the mold into an area where the machine applies heat and
tremendous pressure. � (Tr. 34, 40, 42-44,
85, 114, 119, 122, 141-42, 215-16, 269.) �
Once the mold is inside this area, a separate �swing arm� comes down in
front of it. � (Tr. 161-62.) � The machine compresses the mold before
automatically pushing it out for the next stage in the production process. � (Tr. 35, 227; Jt. Exs .
2, 4b.) �

����������� Respondent
required workers who would operate machinery like Press 26 to participate in a ninety-day
training program. � (Tr. 186, 192, 285-86,
303; Ex. R-1 at 3.) � This program includes
both classroom instruction as well as the assignment of a trainer to shadow and
instruct the new worker. � (Tr. 17-18,
182-84, 326; Jt. Ex. 8.) � According to
Respondent, the pace at which workers progressed through the training program
varied somewhat depending upon skill. � (Tr.
302-03.) � At a minimum, however, Dentsply
was to directly supervise workers for their first thirty days at the
Facility. � (Tr. 191, 285-86, 303; Ex. R-1
at 3.) �

Despite this requirement for direct
supervision, on the morning of the incident, a worker who started at Dentsply approximately
two weeks earlier was assembling molds and placing them into Press 26 outside
the presence of a supervisor. [2]
� (Tr. 17, 38-39, 47, 90, 134.) � He was early in his training and had never
worked with any automatic presses similar to Press 26
until the day before his injury. � (Tr.
20, 37-38, 47, 90; Jt. Pre- Hr�g at 5.a; Stip.
C.) � According to his testimony, he arranged
the materials in a mold and then moved it into the loading area. � (Tr. 17, 29-30, 40.) � At that point, his hand was somehow carried
into the part of the machine that applies heat and pressure. � (Tr. 30.) �
He tried to stop the machine but was unable to do so before the press
clamped down on his hand. � (Tr. 30, 45-46.) � He could not free himself even after the
machine was shut off. � (Tr. 30, 249, 251.) � As a result of the
incident, he lost three fingers. [3] � (Stip. G; Tr. 134.) �

Dentsply notified OSHA of the
injury and Compliance Office Jeffrey Haffner (CO)
conducted a site inspection on June 23, 2016. �
(Tr. 74, 120.) �

DISCUSSION

Applicability & Violation

To establish a violation of any OSHA standard, the Secretary must
prove that: (1) the cited standard applies; (2) its terms were violated; (3)
employees were   exposed to the
violative condition; and (4) the employer knew or could have known with the   exercise of reasonable diligence of
the violative condition.  (Jt. Pre- Hr�g Report
at 6.a.) � See Astra Pharm. Prods., Inc .,
9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),  aff�d in pertinent part ,
681 F.2d 69 (1st Cir. 1982). � The
Secretary has the burden of proving each of these elements by a preponderance
of the evidence.   Id . �

In addition to these elements, to
prove a violation of 29 C.F.R. �  1910.212(a)(1),
the Secretary must also show that there was a hazard in a machine area. � Buffets,
Inc ., 21 BNA OSHC 1065, 1066 (No. 03-2097, 2005) (Secretary must establish
the rotating parts presented a hazard). � This
is necessary because �  1910.212(a)(1)
requires employers to guard against �hazards� in machine areas without
providing specific ways to do so. [4]
� Id. ;
Ladish Co. , 10 BNA OSHC 1235, 1237 (No.
78-1384, 1981). � So, the Secretary must
show that the hazard results from the way the machine functions and how it
operates. � Id . � The fact that it is
possible for an employee to come into contact with a machine�s
moving parts alone is insufficient to show a hazard. � Id . � See
also Jefferson Smurfit Corp .,
15 BNA OSHC 1419, 1421 (No. 89-0553, 1991) (possibility of   exposure to an unguarded nip point
insufficient to sustain a violation).

The hazards presented by Press 26
were open and obvious even before anyone was hurt. � (Jt. Ex. 2.) �
See Ladish ,
10 BNA OSHC at 1237 (finding, in connection with an
alleged violation of � 1910.212(a)(1), that the descending arm presented a
�readily apparent� danger). � Indeed, Respondent
does not suggest that the machine was not hazardous or that it did not require
guarding. � (Tr. 223, 226; Jt. Ex. 2.) � It recognized that Press 26 required training
and supervision to be safely operated. � (Tr. 182-92, 303; Ex. R-1.) � Employees loaded the molds by hand just a short
distance from where the machine automatically applied tremendous heat and
pressure. [5] � (Tr. 28; Jt. Exs .
2, 4b.) � Thus, the manner in which employees operated Press 26 distinguishes
this case from those relied on by the Respondent. [6] � ( Resp�t Br. at
14-18.) � The actual injury further shows the need
for guarding in the machine area. � See A.E. Burgess Leather Co., Inc., 5
BNA OSHC 1096, 1097 (No. 12501, 1977) (finding that t he occurrence of injuries, while not
conclusive, is probative of whether a machine presents a hazard) , aff'd, 576 F.2d 948 (1st Cir. 1978).

Having found that the machine area
presented a hazard, we turn to whether Respondent violated the cited standard
by, as the Secretary alleges, failing to: �effectively guard the point of
operation on the Rotary Press #26 where employees place a disk into the press,
thereby exposing employees to amputation injuries.� � (Jt. Ex. 1; Stip. D.) � Respondent argues that Press 26 complied with
the cited standard at the time of the accident. �
( Resp�t Br. at 12.) � Alternatively, it argues that if there was a
violation, it resulted from unpreventable employee misconduct. [7] � Id. at
23.

The cited standard requires
employers to provide one or more methods of machine guarding: �to protect the
operator and other employees in the machine area from hazards such as those
created by point of operation, ingoing nip points, rotating parts, flying chips
and sparks.� � 29 C.F.R. � 1910.212(a)(1). � Employers must protect workers from hazards
associated with the point of operation as well as other machine hazards. � Gen.
Elec. Co ., 10 BNA OSHC 1687, 1690 (No. 77-4472, 1982); Ladish , 10 BNA OSHC at 1237 (guarding
requirements apply to the moving parts of all types of industrial machinery) . � � Section
1910.212 is to be read as a whole and its provisions,
particularly sections 1910.212(a)(1) and (a)(3)(ii), are to be construed
together.� � Stacey , 10 BNA OSHC at 1536. �

As described above, to complete the
assigned work at Press 26, the employee first assembled a mold and then manually
placed it in the machine�s loading area. �
(Tr. 20-22, 28, 244.) � A hook arm
detects the mold and pushes it to where the machine applies heat and
pressure. � (Tr. 42, 85, 142-43, 269, 292.) � The opening to this area was partially
covered with a physical barrier the parties referred to as a Lexan shield. � (Tr. 180, 223, 226.) � This Lexan shield had a 3
1/8 inches by 4 � inches opening to allow objects to go from the loading
area into the press portion of the machine. [8] � (Tr. 86-87, 136, 228; Jt. Ex. 7 at 6-8.) � After the mold is in the press area, a swing
arm comes down and reduces the size of the opening in the Lexan shield. � (Tr. 179-80, 229; Jt. Ex. 7.) � However, even when the swing arm is completely
down, a gap of approximately two inches in height between the top of the swing
arm and the bottom of the Lexan shield remains. [9] � (Tr. 229-30; Jt. Ex. 7.) � And, because pressure starts being applied
even before the swing arm is fully down, the total size of the opening is still
a relevant consideration when determining whether there was an unguarded hazard
in a machine area. [10] � (Jt. Ex. 4b.) �

Respondent argues that this opening does
not violate the standard because it was the same size as the mold employees
placed in the loading area. � ( Resp�t Br. at 12.) � While
it is accurate to say that the opening was about the size of a correctly
constructed mold, if an employee mistakenly forgot part of the mold, there
would be a greater difference between the mold and the end of the Lexan shield. [11] � (Tr. 228, 252, 292-93.) � Further, because heat and pressure started to
be applied even before the swing arm is down, employees were still at risk if
their hand was on the side of the mold rather than the top. � (Jt. Ex. 4.) �
This is more than a theoretical possibility because an employee�s hand
did, in fact, get through the opening and into the press portion of the machine
even with the mold present. [12] � (Stip. G; Tr. 134, 137.) �

Respondent also suggests that the hook arm
was a form of guarding. � ( Resp�t Br. at 7-8.) � The
hook arm allowed workers to push the mold into the loading area rather than
directly into the press. � (Tr. 269.) � This somewhat reduced the distance between
the worker and the most dangerous part of the machine
but it arguably presented its own hazard because it engaged automatically when
an employee placed a mold in the loading area, even if an employee maintained
contact with the mold. � (Tr. 216, 269.) � Nor did the hook arm physically preclude access
to a machine area. � See Gen. Elec. , 10
BNA OSHC at 1690 (finding that the point of operation must have a physical
guard that does not depend upon correct employee behavior).

Respondent seems to recognize that
neither the hook arm nor the Lexan shield prevented an amputation. [13] � Still, it argues that there is no violation
because the standard does not say that the guarding in place has
to be effective. � ( Resp�t Br. at 2, 10-12.) � By its express terms, the standard requires
the use of guarding that protects employees �in the machine area from
hazards.� � 29 C.F.R. �  1910.212(a)(1). � Although the standard permits various types
of guarding, whatever method is chosen must offer protection. [14] � Hughes
Bros ., 6 BNA OSHC at 1833 (�Subsection (a)(1) clearly requires an employer
to provide guarding devices that �protect� his employees against machine
hazards. � Nothing in the standard
suggests that employees may be left with only partial protection from machine
hazards�); True Drilling Co. v. Donovan ,
703 F.2d 1087, 1090 (9th Cir. 1983) (noting that the guarding must be
�efficacious and safe�). � Thus, the
standard requires more than the mere presence of guarding. �

The plant manager indicated that employees
were trained to remove their hands after placing the mold in the loading area. [15] � (Tr. 183, 248, 257, 324.) � But , even when adhering to company
policy, employees operating Press 26 came close to the point of operation. � (Tr. 27-28; Jt. Ex. 7.) � The standard does not require an employee�s
hands to actually be in the point of operation for
guarding to be necessary. � Oberdorfer Indus., 20 BNA OSHC 1321, 1328 (No.
97-0469, 2003) (consol.) (finding exposure to a hazard and a violation of � 1910.212(a)(1) when
employees had their hands three to eight inches from the unguarded parts); Sheet Metal Specialty Co. , 3 BNA OSHC
1104, 1105 (No. 5022, 1975) (finding exposure in connection
with a violation of 29 C.F.R. �  1910.212(a)(3)(ii)
when press brake operator positioned sheet in the die and held it within twelve
inches of the point of operation). � Cf. Syntron , Inc. ,
11 BNA OSHC 1868 (No. 81-1491-S, 1984) (distance of one foot insufficient to
show exposure in light of how the machine functions
and is operated). � Rather, the cited
standard requires protection from hazards in the �machine area.� � 29 C.F.R. �  1910.212(a)(1). � Employees placed the molds on top of moving
parts and close to an undisputed pinch point. [16] � (Jt. Exs . 2,
4b.) �

Thus, the incomplete Lexan shield, even
when combined with the machine�s other features and the Respondent�s policies
(if they had been fully followed), did not provide employees with the required
protection from a hazard in a machine area. �
(Tr. 29, 94, 99, 141; Jt. Ex. 7 at 6; Ex. R-1 at 3.) � See
Riverdale Mills Corp. , 29 F. App�x . 11 (1st Cir.
2002) (finding that employer�s failure to adequately guard the machine was
demonstrated by an employee�s hand going into a machine). � Accordingly, the Secretary established
that the cited standard applies and that Respondent
violated it.

Exposure

An employee was actually
exposed to the hazard presented by the violation when Press 26 crushed
his hand. [17] � (Tr. 134; Stip. G.) � Even without the injury, the regular course
of work brought employees extremely close to part of the machine that applied
heat and could sever bones. � (Tr. 22, 28;
Jt. Exs . 2, 4b.) �
As noted above, once the employee placed the mold by hand into the
loading area, the hook arm pushed it on to the next area of the machine. � (Tr. 28, 141-42, 269; Jt. Ex. 4 b) � This occurred
regardless of whether an employee was still touching the mold. � (Tr. 142, 292.) � Further, although the swing arm reduced the
size of the opening, there was sufficient room between the top of the swing arm
and the Lexan shield for a hand to pass into the machine�s most dangerous part. [18] � (Jt. Exs . 2, 7,
4b.) �

Respondent counters that its policies kept employees
from being exposed to any hazard. � ( Resp�t Br. at 18-20; Tr. 244-45, 248.) � As a preliminary matter, there is no dispute
that a critical aspect of Respondent�s program was not being adhered to on the
day of the incident�the injured employee worked the automatic press without direct
supervision. [19] � (Tr. 29.) �
More importantly, even if the injured employee had been directly
supervised, the cited standard does not permit guarding by work rules. [20] � Akron
Brick and Block Co ., 3 BNA OSHC 1876, 1877-78 (No. 4859, 1976) (work rules
relating to the use of a safety switch and hook were not a method of guarding
contemplated by �  1910.212(a)(1)); Riverdale Mills Corp. , 29 F. App�x . 11 (1st Cir. 2002)
(unpublished) (upholding a violation of �  1910.212(a)
because the method of guarding was insufficient) . � �[T]he standard is plainly intended to eliminate
danger from unsafe operating procedures, poor training, or employee
inadvertence.� � Signode Corp. , 4 BNA OSHC 1078, 1079 (No. 3527, 1976) (upholding a
violation of �  1910.212(a)(1)). �

Further, Respondent�s work rule
referred specifically to the point of operation. � But, the cited standard is not limited to
point of operation hazards. � Gen. Elec. , 10 BNA OSHC at 1690; Ladish , 10 BNA
OSHC at 1237. � It requires guarding of
�machine areas.� � 29 C.F.R. �  1910.210(a)(1). � And, Respondent required an employee to place
the mold on top of a sensor that engaged automatically and near a point of
operation that was only partially guarded. �
(Tr. 24; Jt. Ex. 2; Ex. R-2.) � Thus,
even if the standard permitted employers to rely on employee behavior in lieu
of guarding, Respondent�s instructions did nothing to lessen exposure in a
machine area. � (Tr. 22, 28.) � See S
& G Packaging Co ., 19 BNA OSHC 1503, 1508 (No. 98-1107, 2001) (finding
work rules insufficient to show unpreventable employee misconduct in connection
with a violation of �
1910.212(a)(1)); Con Agra Flour Milling
Co., 16 BNA OSHC 1137, 1150 (No. 88-1250, 1993) (guarding violation found
where employees worked 1 to 1.5 feet away from unguarded moving parts), partially rev�d on
other grounds , Reich v. Con Agra
Flour Mill Co. , 25 F.3d 653 (8th Cir. 1994) (not reviewing the guarding
violation).

Knowledge

The knowledge element requires a
showing that the employer knew, or with the exercise of reasonable diligence
could have known, of the violative condition. �
See e.g., Revoli
Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). � The opening in the Lexan shield was plainly
visible and should have been seen by multiple supervisors. � (Jt. Ex. 2.) �
For example, a supervisor worked adjacent to the injured employee and
another manager operated Press 26 himself. �
(Tr. 28, 92; Jt. Ex. 7 at 6.) � See Nordam Grp., 19
BNA OSHC 1413, 1417 (No. 99-0954, 2001) (finding knowledge when conditions were
in plain view and supervisor was regularly in the area), aff�d , 37 F. App�x 959 (10th Cir. 2002)
(unpublished); MCC of Florida, Inc. ,
9 BNA OSHC 1895 (No. 15757, 1981) (same). �
In addition, the plant manager indicated that the machine was checked
for maintenance, including the guarding, every six months. � (Tr. 196-97, 201, 279, 284; Jt. Ex. 6.) � This is sufficient to show actual or
constructive knowledge of the violative condition. [21] � See Am.
Airlines, Inc ., 17 BNA OSHC 1552, 1555 (No. 93-1817, 1996) (consolidated)
(finding knowledge when conditions were in plain view and supervisory personnel
were present). �

Respondent also argues that it did not know
that Press 26 was unsafe. � ( Resp�t Br. at 21.) �
As a preliminary matter, the record does not support this
statement. � The machine was labeled with
a caution sign, Respondent required training and supervision for its operation,
and told employees not to put their hands in the press. � (Tr. 35, 186, 189; Jt. Ex. 2.) � More importantly, the Secretary does not need
to show that the employer was actually aware that a
condition violates the cited standard. � Phoenix Roofing, Inc. , 17 BNA OSHC 1076,
1079-80 (No. 90-2148, 1995), aff�d ,
79 F.3d 1146 (5th Cir. 1996) (unpublished). �
Awareness of the condition itself satisfies the test. � Id . � Respondent had such awareness. � It knew that Press 26 presented hazards and
was aware of the gap in the Lexan shield. [22] � (Jt. Ex. 2 at 1; Ex. R-1 at 3.) � Further, the gap was obvious and therefore capable
of being discovered by a reasonably diligent employer. [23] � See
Hamilton Fixture , 16 BNA OSHC 1073, 1089 (No. 88-1720, 1993) (finding an
employer is chargeable with knowledge of conditions which are plainly visible
to its supervisory personnel), aff'd ,
28 F.3d 1213 (6th Cir. 1994) (unpublished).

Respondent failed to rebut any
element of the Secretary�s prima facie case. �
Respondent did not call the EHS Manager, the trainer who was supposed to
be supervising the injured employee at the time of the incident, or the unit
leader. [24] � See Well
Solutions, Inc., Rig No. 30 , 17 BNA OSHC 1211, 1214-15 (No. 91-340, 1995) (holding
that the Secretary can rely on the �best available evidence� and even a slim
showing of a prima facie case is sufficient absent rebuttal by the party who
has �full possession of all the facts�); Kaspar Electroplating Corp ., 16 BNA OSHC 1517, 1521-22 (No. 90-2866,
1993) (evidence cited by employer did not rebut Secretary�s evidence that
hazard was accessible). � There is no
dispute that there was a gap in the Lexan shield, employees had access to this
gap, and the incomplete guarding was, at least, capable of being
discovered. � (Jt. Ex. 2, 4b.) �

Affirmative Defenses � Unpreventable Employee Misconduct

Having found that the Secretary
established a violation, we turn to whether Respondent made out its affirmative
defense of unpreventable employee misconduct. [25] � To prevail on the affirmative defense of
unpreventable employee misconduct, an employer must show that it has: (1)
established work rules designed to prevent the violation, (2) adequately
communicated those rules to its employees, (3) taken steps to discover
violations, and (4) effectively enforced the rules when violations have been
discovered. � (Jt. Pre- Hr�g
Report at 6.b.) � See, e.g., Manganas Painting Co ., 21 BNA OSHC 1964, 1997
(No. 94-0588, 2007) (employer lacked a rule regarding the selection of a proper
respirator). � With respect to the first
element, Respondent points to its rule that employees must not put their hands
in the machinery. � ( Resp�t
Br. at 23; Jt. Ex. 3; Tr. 255-56.) � The
injured employee acknowledged that he was told not to put any body part in the
machine and that violating safety rules could result in discipline. � (Tr. 35.)

While certainly relevant,
Respondent�s rule about not placing body parts in machines must be viewed in
the context of the specific violation as well as Respondent�s overall safety
program. � (Tr. 23-24.) � The violation was for failure to guard operators
against hazards in the machine area. � (Complaint
Ex. A.) � No guard was removed or altered
by an employee. � The machine violated the
cited standard without any action by an employee�the alleged violation of a
work rule to stay out of a point of operation did not create the violative
condition. � See PBR, Inc. v. Sec�y of Labor , 643 F.2d 890, 895 (1st Cir. 1981)
(warning employees to exercise caution is not a sufficient work rule to defend
against a violation of �
1910.212(a)(1)). � Nor does the rule
�reflect the requirements� of the cited standard, which requires machine guarding. � Lake Erie
Constr. Co., Inc., 21 BNA OSHC 1285, 1287 (No. 02-0520, 2005); Little Beaver Ranches, Inc ., 10 BNA OSHC
1806, 1811 (No. 77-2096, 1982) (requiring employees to have �nothing to do with
power� and to �stay away from power lines� was an insufficient basis for the
employee misconduct defense); Power Plant
Div., Brown & Root, Inc ., 10 BNA OSHC 1837, 1840 (No. 77-2553, 1982) (requiring
employees to tie off safety belts was a not a defense to a citation alleging
that an open-sided floor lacked a guardrail). �
The cited standard prescribes physical guarding to protect against
inadvertence. � Akron Brick and Block Co ., 3 BNA OSHC 1876 (No. 4859, 1976); Consol. Aluminum Corp. , 9 BNA OSHC 1144,
1156 (No. 77-1901, 1980)(�warning signs and instructions to employees to avoid
the hazards are not as a matter of law an adequate substitute for the physical
guarding required by [ �  1910.212(a)(1)]�);
Special Metals Corp ., 9 BNA OSHC
1132, 1134 (No. 76-4940, 1980) (�it is inappropriate to rely on employees to
avoid a hazardous condition as the primary means of protecting employees from
that condition�). � ���

Respondent argues that the injured
employee�s misconduct resulted in his loss of three fingers. � ( Resp�t Br. at
24.) � First, the record does not support
this assertion�Respondent did not establish that the employee caused his own
injury. � Although the plant manager
disputed the worker�s account of how the injury occurred, he lacked any direct
knowledge of the incident and never talked with the injured employee about what
happened. [26] � (Tr. 296, 299.) � �� ��

Second, even if the employee erred,
the unpreventable employee misconduct defense does not hinge on how an injury
occurred. � The focus is on whether the
violation resulted from misconduct. � That
is not the case here. � Instructing
employees to avoid the point of operation on an automatic press is not a
sufficient work rule to prevent the violation. �
(Tr. 111.) � Third, there is no
dispute that Respondent�s supervision rule was not being followed when the
incident occurred. � The injured employee
had been working at Dentsply for approximately two weeks and had only operated
Press 26 for about a day when he was hurt. [27] � (Tr. 38.) �
See Marson Corp. , 10 BNA OSHC
1660, 1662 (No. 78-3491, 1982) (rejecting unpreventable employee misconduct
defense to a violation of �  1910.212(a)(1)
in part because an employee was left unsupervised after initial training). � Even though his training was ongoing, he was
left unsupervised and exposed to a violative condition, which existed not as
the result of any conduct engaged in by the injured employee. � (Tr. 29, 139, 186, 303-4.) � See
Adams & Mulberry Corp. , 3 BNA OSHC 1077, 1078 (No. 2548, 1975) (no
employee misconduct defense when employees were inexperienced
and exposure resulted from poor supervision); Little Beaver , 10 BNA OSHC at 1811 (heightened instruction
requirement for inexperienced employees); Lake
Erie, 21 BNA OSHC at 1287 (work rule must be �clearly and effectively
communicated to employees�).

����������� Particularly
in light of the lack of an adequate work rule
pertaining to the cited standard, Respondent failed to establish the
affirmative defense of unpreventable employee misconduct.

Characterization and Penalty Amount

The Secretary characterizes this Citation item as
serious. � A violation is �serious� if
there was a substantial probability that death or serious physical harm could
have resulted from the violative condition. � 29 U.S.C. � 666(k).  The CO testified
that there was a likelihood of serious harm and that multiple employees were
exposed to the violative condition. � (Tr.
98-99; Jt. Ex. 7 at 8.) � Amputations of
fingers are a serious bodily injury, making it appropriate to characterize the
violation as serious. � (Tr. 98-99.) � See
J.C. Watson Co., 22 BNA OSHC 1235, 1241 (No. 05-0175, 2008) (consolidated)
(affirming a violation of � 1910.212(a)(1)
as serious); Hughes Bros. , 6 BNA OSHC
at 1833 (finding that partial guarding does not preclude serious
characterization of violation). �

As for the penalty amount, the Act requires
consideration of four factors: (1) the gravity of the violation; (2) the
employer�s size; (3) the employer�s history; and (4) its good faith. � Amerisig Se., Inc .,
17 BNA OSHC 1659, 1661 (No. 93-1429, 1996) (applying 29 U.S.C. 666(j) to assess
the penalty for a violation of � 1910.212(a)(1)).   Of these, gravity is generally the most
important factor. � Id.

The CO explained
that the violation�s gravity was high because of the severity of injuries that
could occur. � (Tr. 99.) � The undersigned agrees and finds that the probability
of an injury resulting from the violative condition increased because the
employee was left unsupervised to work at Press 26 alone just a short way into
his training period. � (Tr. 29, 99.) � See Amerisig , 17 BNA OSHC at 1661 (noting the severity of
injuries a press machine can cause when it violates � 1910.212(a)(1)). � The plant manager indicated that the company
has approximately 700 employees and neither party argues that Respondent�s size
warrants a penalty reduction. � (Tr. 323;
Jt. Ex. 7 at 4; Ex. R-1.) � As for
history, although Respondent has not been previously cited, there was no
evidence of past inspections either. � So,
Respondent�s history warrants neither an increase nor a decrease in the penalty
amount. � See M.V.P. Piping Co., Inc. , 24 BNA OSHC 1350, 1352 (No. 12-1233,
2014) (finding that history factor did not support a low penalty when the employer
had not been inspected within the past five years). � Finally, while Respondent exhibited some good
faith by promptly addressing the lack of guarding, the undersigned finds that violation�s
gravity deserves more weight than this factor. �
(Stip. E.) � See Amerisig , 17 BNA OSHC at 1661
(finding the gravity high despite the precautions taken). � Therefore, a penalty of $7,000 is assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW �

The foregoing decision constitutes the findings of fact and
conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil
Procedure. 

ORDER

Based on the foregoing decision, it is hereby ORDERED
that Item 1 of Citation No. 1, alleging a serious violation of 29 C.F.R. � 1910.212(a)(1) is
AFFIRMED, and a penalty of $7,000 is assessed. �
����

����������������������������������������������� ������

����������������������������������������������������������� /s/ ��������������������������������������������������������

����������������������������������������������������������� Carol A. Baumerich

Judge, OSHRC

Dated: August 15, 2017

[1] The
parties stipulated that the injured employee began work at Dentsply as a
temporary employee referred by Adecco. �
(Tr. 170.) � Adecco is a separate
company Respondent used to recruit new hires. �
(Tr. 235, 242; Jt. Ex. 7 at 3; Resp�t Br. at
3.) �

[2] Neither
the trainer nor the unit leader was present when the injury occurred. � (Tr. 29; Jt. Ex. 3.) �

[3] The
parties stipulated that: �[employee], while operating Press Number 26 on June
17, 2015, suffered an injury and as a result of that
injury three fingers on his left hand have been amputated, that is his index,
middle and ring fingers on his left hand.� �
(Tr. 134.)

[4]
Specifically, the standard requires:

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, ingoing nip points, rotating parts, flying chips
and sparks.

29 C.F.R. � 1910.212(a)(1).

[5] On the
day of the inspection Press 26 was not in operation. � (Tr. 165.) �
The CO observed a similar machine, but he was unable to measure the
exact distance between where the mold is placed by hand and where the heat and
pressure is applied because that machine could not be locked out. � (Tr. 137.) �
However, the videographic evidence supports
the Secretary�s position that it was a short distance. � (Jt. Ex. 4b.) �
Further, the hook arm automatically engages directly beneath where the
employee puts the mold. � (Tr. 269; Jt.
Ex. 4b.)

[6] In Stacey Mfg. Co., Inc. , 10 BNA OSHC 1534
(No. 76-1656, 1982), the materials were not placed by hand and the Secretary
only showed that it was �not impossible� to be injured. � 10 BNA OSHC at 1537 (upholding a violation of
� 1910.212(a)(3)(ii) but vacating the citation item related to
� 1910.212(a)(1)). � Also, not on
point is the ALJ decision, Metal
Shredders , Inc. , No. 90-2273, 1992
WL 73639 (O.S.H.R.C.A.L.J. March 23, 1992). �
( Resp�t Br. at 15.) � In that case, employees occasionally removed
guards for maintenance. � 1992 WL 73639,
at *5. � On such occasions, employees only
came within three feet of the unguarded parts. �
Id. � Here, employees came much closer to
moving parts and the gap in the Lexan shield was always present. �

[7] Respondent
also challenged the CO�s overall credibility because he suffered a workplace
injury. � ( Resp�t
Br. at 16 n.16.) � This contention is
rejected. � Nothing in the CO�s conduct,
testimony, or demeanor disclosed a bias toward Respondent. � �� Regarding
all relevant facts, his testimony was corroborated by other witnesses and physical
evidence. � The CO�s testimony was direct
and credible. �

�

[8] While
the size of the cutout remained constant, the space an employee could reach
into or be pushed into decreased as the press moved down on top of the
mold. � (Jt. Ex. 4b.) �

[9] The
injured employee indicated that he was instructed to rotate the mold after
placing it in the loading area. � (Tr.
25-26.) � Whether he was required to
rotate the mold does not impact the size of the opening in the Lexan shield,
which is undisputed. � (Jt. Ex. 7.) � Even if the mold was not supposed to be
rotated, the work still brought employees� hands close to moving parts and a
pinch point. � (Jt. Exs .
2, 4b.)

[10] Despite
this evidence, Respondent argues that there was no evidence about �an absence
of guarding on Press 26.� � ( Resp�t Br. at 12.) �
Both the CO and the plant manager acknowledged the gap in the Lexan
shield. � (Tr. 94, 168, 229-30, 233; Jt.
Ex. 2.)

[11]
According to the plant manager, the mold that the injured employee loaded into
Press 26 just prior to his injury was shorter than the typical mold. � (Tr. 293.) �

[12] The
injured employee�s testimony that he did not place his hand in the machine on
purpose is credited. � (Tr. 36.) � The injured employee impressed me as a
credible witness. � He answered the questions
presented at the hearing without hesitation and with candor, to the best of his
recollection in light of the traumatic injury he
experienced. Although the plant manager disputed the worker�s account of how
the injury occurred, the plant manager lacked direct knowledge of the incident
and never talked with the injured employee about how the accident
occurred. �� Rather, the plant manager
believed that it was Respondent�s Environmental, Health and Safety (EHS) Manager
Michael Forte who talked with the injured employee. � (Tr. 296, 299.) � The plant manager�s suggestion that the
injured employee is a �liar� is unwarranted and rejected. (Tr. 303.) �

[13]
Respondent�s EHS Manager Forte acknowledged to the CO that Press 26�s guarding
was not effective. � (Tr. 104, 141, 144,
278-79; Jt. Ex. 7.) � Notably, Respondent
failed to call the EHS Manager to rebut this or any other testimony, even
though at the time of the hearing Mr. Forte remained employed as Respondent�s
EHS Manager. � (Tr. 320-21.) �

[14]
In support of its argument that the cited standard does not address the
efficacy of guards, Respondent cites a non-precedential decision, Roberts Consolidated Industries, Inc .,
No. 80-2423, 1981 WL 19359 (O.S.H.R.C.A.L.J. March 24, 1981)
(consolidated). � ( Resp�t
Br. at 12.) � This case does not support
Respondent�s position that the Secretary had to show that the machine was
�unguarded.� � Id. � Rather, it makes plain
that the standard must be interpreted to: �effectuate and not hinder the
statutory purpose of employee protection.� �
1981 WL 19359, at *16, citing Hughes
Bros ., 6 BNA OSHC 1830, 1833 (No. 12523, 1978). � The judge ultimately concluded that in the
case of one of the machines, the guarding �fully protected employees.� � Id. � Notably, employees were not required to
push a container into the press at issue in Roberts . � Id. � Here, employees were required to load the
mold next to an opening in the Lexan shield. �
(Tr. 25-28; Jt. Ex. 4b.) � As the
Commission held in Hughes Brothers ,
partial protection from hazards does not satisfy the standard�s
requirements. � 6 BNA OSHC at 1833.

[15] As
noted above, the injured employee had not yet completed his training. � (Tr. 17.)

[16]
Neither Rockwell International Corp. ,
9 BNA OSHC 1092 (No. 12740, 1980) nor Auto
Shred Recycling LLC , 18 BNA OSHC 1515 (No. 97-2050, 1998) (ALJ) compels a
different result. � ( Resp�t
Br. at 13-14.) � As a preliminary matter, Rockwell involved a violation of a
different standard and was partially over-ruled by George C. Christopher & Sons, Inc. , 10 BNA OSHC 1436 (No. 76-647,
1982). � Moreover, in Rockwell the moving parts were so slow that even if an employee
directly entered the point of operation, the Secretary did not establish that
there would be an injury. � 9 BNA OSHC at
1097-98. � Press 26 was not so
forgiving. � Nor is the non-precedential
decision Auto Shred persuasive. � There, the employee did not have to come
close to moving parts and was injured as a result of
circumventing the guarding present. � 18
BNA OSHC at 1516. � Press 26 had an
incomplete Lexan shield and the work required close access to moving parts.

[17] While
the evidence showed only one injury on Press 26, this �does not preclude a
finding of employee exposure.� � See Consol. Alum. Corp. , 9 BNA OSHC
1144, 1156 (No. 77-1091, 1980).

[18]
Neither South Dakota Beverly Enterprises,
Inc ., 21 BNA OSHC 1037 (No. 01-212, 2005) (consolidated), nor Skydyne , Inc. , 11 BNA OSHC 1753 (No. 80-5422,
1984), requires a different result. � In Beverly there were no injuries and there
was evidence that the lack of machine guarding did not present a hazard. � 21 BNA OSHC at 1038-39. � Skydyne differed legally, in that another standard was
cited, and factually, because the press was operated manually and there was
evidence that employees would not be able to get their hands into the
machine. � 11 BNA OSHC at 1755 � Unlike Skydyne and Beverly , the record
here includes details about how operations required employees to come near
moving parts, including an ingoing nip point, as well as evidence of a serious
injury. � (Tr. 22, 28; Jt. Exs . 2, 4b.)

[19] It is
unclear how long or why the employee was left unsupervised. � (Tr. 90.) �
The injured employee thought the trainer went to the restroom. � (Tr. 29.) �
Respondent�s internal accident report does not mention the trainer but
indicates that the unit leader had stepped away to get something. � (Jt. Ex. 3 at 1; Tr. 326.) � Neither the trainer nor the injured
employee�s immediate supervisor, the unit leader, testified and Respondent did
not offer any other evidence to explain the lack of supervision. � (Tr. 325-26.) �

[20] While
not exhaustive, the standard provides examples of potentially acceptable
guarding methods: �barrier guards, two-hand tripping devices, electronic safety
devices.� � 29 C.F.R. �
1910.212(a)(1). � Training and instruction
are addressed by other standards.

[21] The
open and obvious nature of the gap distinguishes the present matter from the
ALJ decision relied on by Respondent, Evergreen
Technologies, Inc. , 18 BNA OSHC 1528 (No. 98-0348, 1998) (ALJ). � ( Resp�t Br. at 11,
14, 18-19.) � In Evergreen , there was no dispute that the moving part required
guarding but the Secretary failed to show that the Respondent knew, or should
have known, that the necessary guarding had become detached. � 18 BNA OSHC at 1529. �

[22]
Respondent offered a document titled Client Safety Evaluation, prepared by
Adecco, that � was
part of the agreement under which Adecco supplied workers for Respondent�s
Facility. � (Tr. 242; Ex. R-1.) � It notes generally that there are many
hazards associated with moving machinery parts and also
specifically indicates that workers will not operate machines until after four
weeks of on the job training with a supervisor. �
(Ex. R-1 at 3.) � The document does
not support Respondent�s claim that it lacked knowledge of the violative condition. � Further, even if Adecco had concluded that
Press 26 was appropriately guarded and could be operated by an unsupervised
worker just two weeks into his ninety-day training period, this would not
impact Dentsply�s own liability for the violation. � The Commission has long held that legal
duties for compliance with the Act cannot be contracted away to third
parties. � See, e.g., Baker Tank Co. 17 BNA OSHC 1177, 1179 (No. 90-1786-S,
1995). �

[23]
Nor is there any suggestion that the cited standard was invalidly promulgated
or not published in the Code of Federal Regulation. � See
Faultless Div., Bliss & Laughlin Indus., Inc. v. Sec�y of Labor, 674
F.2d 1177, 1186 (7th Cir. 1982) (construing machine guarding requirement as
�sufficiently specific ... to reasonably apprise [the employer] in clear terms�
of the conduct required); Ralston Purina,
Co. , 7 BNA OSHC 1302, 1304 (No. 76-2551, 1979) (noting that the
requirements of � 1910.212(a)(1) are �self-explanatory and clearly
ascertainable�). � Due process
necessitates that the employer receive a �fair and reasonable warning; it does
not demand that the employer be actually
aware that the regulation is applicable � . � � Am.
Bridge Co., 17 BNA OSHC 1169, 1172 (No. 92-0959, 1995) (emphasis in
original). �

[24]
There is no evidence that any of these individuals were unavailable at the time
of the hearing. � (Tr. 278-79, 295, 306,
320-21, 325-26.) � It is reasonable to infer that if Respondent�s EHS Manager, the injured
employee�s trainer, or the injured employee�s immediate supervisor, the unit
leader, had information disputing the testimony of the Secretary�s witnesses or
rebutting the Secretary�s prima facie case, Respondent would have called these
individuals to testify. See Capeway Roofing Sys. Inc ., 20 BNA OSHC 1331, 1342-43
(No. 00-1986, 2003). ����

[25]
Respondent raised this defense in its Answer, in accordance with Commission
Rule 34(b)(3), which states that: �[t]he answer shall
include all affirmative defenses being asserted.� � 29 C.F.R. � 2200.34(b)(3). � It did not raise any other affirmative
defenses in its Answer, Pre-Hearing Statement, or at any other point. �

[26]
In addition to disputing how the injury occurred, Respondent also tried to cast
doubt on the injured employee�s description of how to load the molds into Press

26. � The injured employee believed he was
    to turn the mold after placing it in the loading area and said a supervisor saw
    him complete the task this way. � (Tr. 25,
    28.) � The plant manager indicated that
    �at some point� turning the molds would result in a jam. � (Tr. 244, 272.) � But he conceded that the approach described
    by the injured employee did not violate the company�s Machine Safe Guarding
    Policy. � (Tr. 182-92, 273; Jt. Ex. 8; Ex.
    R-2.) � And, because neither the trainer
    nor the direct supervisor testified, no witnesses with direct knowledge of how
    the injured employee�s training actually occurred
    refuted his account of the instructions given. �
    (Tr. 296, 325-26.) � Thus, although
    the plant manager argued that the trainer would have stopped an employee from
    turning the molds, there is no direct evidence that this occurred. � (Tr. 274.) �
    See Kaspar ,
    16 BNA OSHC at 1521-22 (showing that improperly guarded equipment was unplugged
    and not in the work area did not rebut Secretary�s evidence that hazard was
    accessible). � In any event, the gap in
    the Lexan shield was present regardless of whether employees turned the molds in
    the loading area or not.

[27] As
noted above, Dentsply had a ninety-day training period, which was to include
thirty days of direct supervision. � (Tr.
186, 191-92, 303: Ex. R-1 at 3.) �