Vampco Metal Products, Inc.

Plain-English summary

Vampco manufactured custom metal products with press brakes whose operators held material near the point of operation. After Vampco did not abate an uncontested machine-guarding citation, the judge vacated failure-to-correct items for two presses because he found that feasible guarding had not been established. The Commission held that the Secretary did not have to prove the feasibility of the suggested guards. Instead, Vampco bore the burden of proving that each guarding method was impossible or would create a greater hazard. Because the judge did not analyze each proposed method under those defenses, the Commission set aside his decision and remanded the case for new findings and conclusions.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1); 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: Decision vacating two failure-to-correct items set aside and case remanded
• Key point: An employer challenging point-of-operation guarding must prove impossibility or greater hazard; the Secretary need not prove guarding feasibility

Full text (OSHRC public release)

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EN-US
X-NONE
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 78-3766

VAMPCO
METAL PRODUCTS, INC.,

���������������������������������������������
Respondent.

October
22, 1980

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.

BY THE COMMISSION:

����������� A
decision of Administrative Law Judge David G. Oringer is before the Commission
for review pursuant to 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�). Judge Oringer
vacated two items of a notification of failure to correct violations for
failure to guard the points of operation of two press brakes. He did so because
he concluded that the feasibility of the guarding methods proposed by the
Secretary of Labor (�the Secretary�) was not established. Chairman Cleary directed
that the judge�s decision by reviewed pursuant to Rule 91a(a), 29 C.F.R. �
2200.91a(a). [1]

����������� Vampco
Metal Products, Inc. (�Vampco�) manufactures light and heavy metal products at
its plant in Columbus, Ohio. On March 22, 1978, a compliance officer for the
United States Department of Labor inspected the plant. As a result, the
Secretary issued to Vampco a citation alleging that the company violated
section 5(a)(2) of the Act, 29 U.S.C. � 654(a)(2), by failing to guard the
points of operation of a Verson press brake used in light manufacturing and a
small Dreis & Krump press brake used in heavy manufacturing. The citation
alleged that Vampco failed to comply with 29 C.F.R. � 1910.212(a)(3)(ii). [2] Abatement was required by
June 5, 1978.

����������� Vampco
did not contest the citation which accordingly became a final order of the
Commission. [3]
On July 28, 1978, the same compliance officer reinspected the plant and
observed that Vampco had not installed point of operation guards on the Verson
and small Dreis & Krump press brakes, and one other machine not in issue
here. [4] The Secretary therefore
issued the notification of failure to correct the violations.

����������� It is
undisputed that the press brake operations exposed the operators to fracture,
crushing, or amputation hazards to their hands or other body parts and that
Vampco had not installed point of operation guards. The parties� dispute
instead centers on the use of five guarding methods mentioned by the compliance
officer for Vampco�s consideration�hand pull backs or restraints, two-hand
tripping devices, moveable gate (barrier) guards, and presence sensing devices. [5]

����������� Vampco
produces metal products entirely according to customer demand and
specifications. Frequently only one product, such as a ladder, door, or
stairway, is made from one set of specifications. Because of the varying
products and specifications, any table or support to hold the metal securely in
the correct position at the point of operation would frequently have to be
designed specially for the one operation. Therefore the operators hold the
metal into the point of operation.

����������� Vampco
presented the testimony of its president and production manager about the
potential problems of using any of the five guarding methods in these custom
operations. The testimony about the hand pull backs and restraints was that
they would be, in the phrase of the president, �feasible but not practical,�
and would create a hazard. On the practical problems in using pull backs or
restraints, the testimony was that the time taken for each operation would be
increased because the operator would have to adjust the pull backs or
restraints for almost every different operation to allow him to reach far
enough toward the point of operation to hold the varying lengths of metal. On
the hazard, the testimony was that, by restraining the operator in position
near the metal in the press brake, the pull backs and restraints prevent the
operator from running out of the way of the metal when it shifts or falls
during the operating cycle. According to the production manager, this happens
once every two to three weeks. Both witnesses believed that, because of this
hazard, the operators would refuse to use pull backs or restraints. The
production manager also believed that a tripping hazard would result from use
of pull backs or restraints tied sufficiently far from the press brake to allow
the operator running room.

����������� The
production manager testified that two-hand tripping devices could not be used
because the operators must hold the metal during the operating cycle. Both
witnesses testified that the company had not installed moveable gate (barrier)
guards because the supplier could not, in the words of the production manager,
give �any definite response that a moveable gate guard would operate
satisfactorily under our conditions,� that is, that the guard would satisfy
machine guarding requirements in all operations. The president expressed
concern that any opening between the gate guard and the metal being formed
would prevent the press brake from cycling. However, the president did not deny
that the gate guard can be adjusted to different material thicknesses. [6] Also, despite the concern
about the supplier�s inability to give a complete guarantee, the production
manager admitted that the company did not ask exactly in what percentage of
Vampco�s operations the supplier believed the guard would work.

����������� The
production manager testified that presence sensing devices could not be used on
the Verson and small Dreis & Krump press brakes because the foot pedals
which control the cycling are not electrically controlled. They would therefore
have to be modified to electrical control for use of presence sensing devices.

����������� Judge
Oringer concluded that the feasibility of guarding methods had not been
established. [7]
The judge did not, however, specifically consider the evidence on each guarding
method except with respect to pull backs and restraints. These he found
dangerous in view of the shifting metal. He was �convinced that the operators
would never use them.�

����������� In Hughes
Brothers, Inc ., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1834�35, 1978 CCH OSHD � 22,909
at pp. 27,718�19 (No. 12523, 1978), we held that, to establish a violation of
section 1910.212(a)(3)(ii), the Secretary is not required to show the
feasibility of point of operation guarding methods. Rather, the burden is upon
the employer to establish as affirmative defenses that the use of the suggested
guarding methods would be impossible or would create a greater hazard. [8] Accord, Amforge
Division, Rockwell International , 80 OSAHRC , 8 BNA OSHC 1405, 1980 CCH
OSHD � 24,439 (No. 76�3488, May 6, 1980) and cases cited therein. We have
comprehensively discussed these defenses and applied them to factual situations
similar to those in this case. Amforge Division, Rockwell International ,
supra; F.H. Lawson Co ., 80 OSAHRC , 8 BNA OSHC 1063, 1980 CCH OSHD
�24,277 (No. 12883, February 29, 1980) pet. for review filed , No.
80�3277 (6th Cir. Apr. 21, 1980); Pass & Seymour, Inc ., 79 OSAHRC
101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD � 24,074 (No. 76�4520, 1979) pet.
for review dismissed , No. 80�4013 (2d Cir. March 19, 1980); Hughes
Brothers, Inc. , supra. Because the judge did not analyze the evidence
regarding each of the point of operation guarding methods in terms of these
defenses, we set aside his decision and remand the case to him for factual
findings and legal conclusions consistent with this opinion. SO ORDERED.

�

FOR
THE COMMISSION:

�

RAY
H. DARLING, JR.

EXECUTIVE
SECRETARY

DATE:
OCT 22, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 78-3766

VAMPCO
METAL PRODUCTS, INC.,

���������������������������������������������
Respondent.

June
14, 1979

Appearances:

For
the Complainant:

William
S. Kloepfer, Assoc. Regional Solicitor

Loretta
Quade, Esq., of Counsel

U.
S. Department of Labor

881
Federal Office Building

1240
East Ninth Street

Cleveland,
Ohio 44199

For
the Respondent:

Rankin
M. Gibson, Esq.

Lucas,
Prendergast, Albright, Gibson, Brown and Newman, Esqs.

42
East Gay Street

Columbus,
Ohio 43215

�

DECISION AND ORDER

ORINGER,
JUDGE:

����������� This
is a proceeding under section 10(c) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the �Act�) to
review citations issued by the Secretary of Labor (hereinafter referred to as
�Complainant�) pursuant to section 9(a) and a proposed assessment of penalty
thereon issued, pursuant to section 10(a), of the Act.

����������� This
case arose as a result of the service upon this Respondent by the Complainant
of a Notification of Failure to Correct violations originally alleged in
citations issued as a result of an inspection that took place on March 22, 1978
which mandated abatement by June 5, 1978. The subsequent reinspection upon
which this Notification of Failure to Correct was issued took place on July 28,
1978. The items in question alleged violations of the standard set forth at 29
CFR 1910.212(a)(3)(ii) in that the points of operations of three pieces of
machinery were not guarded to prevent employees from having any part of their
body in the danger zones during operating cycles. The machines involved were
the Verson press brake near the center of the west wall, the Dreis & Krump
press brake in the heavy manufacturing area and the Chicago Dreis & Krump
large press brake in the heavy manufacturing area.

����������� During
the trial of this cause, the machines were variously described as the large
press brake, the large Dreis & Krump, the small Dreis & Krump and the
Verson.

����������� A
timely notice of contest to the Notification of Failure to Correct was filed by
the Respondent and complaint and answer issued. Eventually, the case came to
trial on Tuesday, March 20, 1979, in Columbus, Ohio.

����������� At
the end of the case, the Judge asked the parties whether they were going to
submit briefs, proposed findings of fact and conclusions of law. In response
thereto, Respondent�s counsel stated that he did not believe so and the
Complainant�s counsel stated it would depend upon the receipt of the transcript
inasmuch as she was going to be out of the office starting May 1st. In view of
the probability of no briefs being submitted, and inasmuch as the testimony was
fresh in the mind of the Judge and the resolution of the cause seemed to be
clear, the Judge advised that if the parties so desired, he would deliver a
decision from the bench and both parties agreeing thereto, proceeded so to do.

����������� The
issues for resolution were whether the point of operation of the three presses
were properly guarded, and if not, was there a feasible means of guarding the
point of operation of these machines. In the event a violation was proven,
another issue would be the amount of penalty assessed therefor.

OPINION

����������� The
original citation which was issued against the Respondent as a result of the
inspection on March 22, 1978, alleged serious violations of two standards
involving ten machines and two other than serious violations concerning
posting. Of the ten machines complained of, any violations connected with seven
thereof, appeared to have been abated inasmuch as the re-inspection did not
allege failure to correct any violations on those machines.

����������� Insofar
as the other three machines were concerned, the proof of record adduced
revealed that Respondent did do some guarding, however, it failed to guard the
point of operation of the machines. It guarded sides and back of some but the
point of operation remained unguarded.

����������� The
only witness testifying for the Secretary was the Compliance Officer. He
testified concerning the machines, the lack of guarding, the type of guarding
that the machines contained and what he believed would be methods of abating
the hazard.

����������� The
Respondent�s witnesses testified concerning the machines, the attempts to have
guarding utilized, the appraisals from companies that do guarding of such
machines and, after hearing all of the testimony, it is the opinion of this
tribunal that it is feasible, possible and appropriate for the large Dreis
& Krump press to be guarded with a present sensing device. The testimony
indicates that the guarding will cost under $10,000.00 including the guard plus
the affixing of the same on the machine.

����������� Insofar
as pullbacks and restraints are concerned, in my opinion, these would be
dangerous because of the inability to move in the event metal was flying and
because of the hazards, this tribunal is firmly convinced that the operators
would never use them.

����������� Insofar
as the two small machines are concerned, this tribunal has a doubt whether any
of the guards testified to by the Compliance Officer would remedy the hazard.
After listening to all of the testimony, Respondent�s witnesses and the
Compliance Officer, this tribunal remains unconvinced that in the extant state
of the art, the two small presses can have their points of operation guarded in
the same means that the large press can be guarded. Specifically, this tribunal
is not convinced that in the present condition of the art, these machines could
be guarded so as to conform to OSHA requirements so that they would not be
cited despite all of the expenditures for such purpose. Accordingly, in the
opinion of this tribunal, the allegations of violation for the Verson press and
the small Dreis & Krump press must fall.

����������� The
Respondent must heed this caveat, however. In the event guarding for these
machines is possible or becomes available and the state of the art proceeds to
where these two presses could be guarded, then in such case, it is incumbent
upon Respondent, to acquire such guarding for those presses.

����������� Insofar
as penalty is concerned, the perfect remedy in the opinion of this tribunal,
would have been to suspend the operation of $1,700.00 of the $1,800.00 penalty
proposed by the Secretary for the failure to abate, on condition that the
Respondent abated the hazard on the large press within 120 days of the
conclusion of the hearing. The Commission in its wisdom however, has precluded
the use of the remedy of suspension of the operation of the penalty despite the
fact that the Act gives the Commission power to use such other and further
relief as would enhance the furtherance of the Act. Secretary of Labor v.
Biltrite Fixture Company, Inc ., 74/26/c6 (8/126) BNA OSHC 1:1687 CCH OSHD
17,769.

����������� In
the opinion of this tribunal, the perfect solution to this case would be to
suspend the operation of $1,700.00 of the penalty which would be used towards
the abatement of the hazard. The Commission however, enunciated its opinion to the
contrary with strong and cogent reasoning.

����������� Accordingly,
this tribunal finds that an appropriate penalty, in view of all elements of
section 17(j) of the Act, amounts to $100.00. The undersigned has taken into
consideration the fact that the injury history of this company is absent any
record of occurrence at the point of operation of any of the presses.

����������� The
lack of accident history, however, does not diminish or dilute the obligation
of the Respondent to abate a hazard. It is the Secretary�s duty to prevent the
first such accident. Leeway Motor Freight, Inc., v. the Secretary of Labor ,
511 F2d 864, (10th Circuit 1975); Ryder Truck Lines, Inc., v. Brennan ,
497 F2d 230, (5th Circuit 1974).

����������� Having
heard the testimony and observed the demeanor of the witnesses and having
considered the same, together with the citation, notification of proposed
penalty, notice of contest, pleadings, representations, stipulations and
admissions of the parties, it is concluded that the preponderance of the
credible evidence of record supports the following

FINDINGS OF FACT

����������� 1.
The Respondent has employees who regularly and customarily receive, handle or
otherwise work on goods that have been moved in interstate commerce or who are
engaged in producing goods for interstate commerce.

����������� 2.
The large Dreis & Krump press is approximately ten years old.

����������� 3.
There have been no injuries or amputations at the point of operation of any of
the machines in question in the past fifteen years.

����������� 4.
Restraints and pullbacks would not be appropriate to the machines in question
as the operators would be in danger of moving steel and would not be able to
move rapidly enough to get out of the way using each of these items. Further,
it is the opinion of this tribunal that because of the aforementioned fact, the
operators would refuse or evade or avoid using them.

����������� 5.
Insofar as the large Dreis & Krump press is concerned, it is feasible to
use a present sensing device to guard the machine and accordingly such guarding
must be utilized.

����������� 6. At
the time of the re-inspection herein concerned, the large Dreis & Krump
machine was not guarded.

����������� 7. At
the time of the re-inspection herein concerned, the Verson press and the small
Dreis & Krump were not guarded.

����������� 8.
This tribunal is not convinced that the proof of record adduced proves
feasibility of guarding the Verson press or the small Dreis & Krump press.

����������� 9.
The Respondent has sustained the burden of proof of showing infeasibility of
guarding the small presses given the extant state of the art and the special
type of operations used with these machines.

����������� 10.
The small presses are used approximately one-half hour each day; the large
press is used approximately five to six hours daily.

����������� 11.
The penalty proposed for the failure to correct is excessive and an appropriate
penalty is $100.00.

CONCLUSIONS OF LAW

����������� 1.
The Respondent is an �employer� within the meaning of section 3 (5) of the Act
and the Commission has jurisdiction to hear and decide the within controversy.

����������� 2.
The Respondent failed to correct a violation of the standard set forth at 29
CFR 1910.212(a)(3)(ii) insofar as the Chicago Dreis & Krump large press
brake is concerned, which constituted Item 2d of the original citation which
resulted from inspection of March 22, 1978. The failure to abate was discovered
on July 28, 1978.

����������� 3.
The Respondent was not in violation insofar as items 2b and 2c are concerned
(the Verson press brake and the small Dreis & Krump press brake).

4. The penalty of $100.00 is appropriate for the
   failure to correct affirmed herein.

ORDER

����������� In
view of the foregoing, good cause appearing therefore, it is ORDERED THAT:

����������� 1.
The Allegation by the Complainant that this Respondent failed to correct the
violation of Item 2d of the citation originally served on the 5th day of April
1978, is AFFIRMED and a penalty of $100.00 is ASSESSED therefore.

����������� 2.
The allegations of failure to correct, insofar as Items 2b and 2c are
concerned, are VACATED.

�

SO ORDERED.

�

DAVID G. ORINGER,

JUDGE, OSHRC

Dated: June 14, 1979

�

New York, New York

[1] Redesignated Rule
92(a), 44 Fed. Reg. 70106, 70111 (1979) [to be codified in 29 C.F.R. �
2200.92(a)].

[2] The standard
provides the following:

�
1910.212 General requirements for all machines.

(a)
Machine guarding�

(3)
Point of operation guarding.

(ii)
The point of operation of machines whose operation exposes an employee to
injury, shall be guarded. The guarding device shall be in conformity with any
appropriate standards therefor, or, in the absence of applicable specific
standards, shall be so designed and constructed as to prevent the operator from
having any part of his body in the danger zone during the operating cycle.

[3] 29 U.S.C. �
659(a).

[4] The notification
of failure to correct violations also concerned a large Dreis & Krump press
brake used in heavy manufacturing. Our review in this case does not involve
this press brake, however, because Vampco did not except to the judge�s
decision affirming this item of the notification and review was not directed on
any issues involving it. See Commission Rule 92, note 1 supra.

[5] Barrier guards,
two-hand tripping devices, and electronic safety devices are examples of
guarding methods set forth in 29 C.F.R. � 1910.212(a)(1).

[6] Furthermore, the
compliance officer testified on rebuttal to Vampco�s case that the moveable
gate guard is adjustable.

[7] In his opinion
given at the close of the hearing when both parties declined to file briefs,
the judge explicitly held that proof of the feasibility of guarding is the
Secretary�s burden. The holding does not appear as such in the subsequent
written opinion but the rule of law�that the Secretary must prove
feasibility�apparently governed the judge�s reasoning. His determinations
central to his resolution were couched in the following terms:

After
listening to all of the testimony, Respondent�s witnesses and the Compliance
Officer, this tribunal remains unconvinced that in the extant state of the art,
the two small presses can have their points of operation guarded . . ..
Specifically, this tribunal is not convinced that in the present condition of
the art, these machines could be guarded so as to conform to OSHA requirements
so that they would not be cited despite all of the expenditures for such
purpose.

The
judge therefore specifically found as fact that �[t]his tribunal is not
convinced that the proof of record adduced proves feasibility of guarding the
Verson press or the small Dreis & Krump press.

The judge additionally found that
�[t]he Respondent has sustained the burden of proof of showing infeasibility of
guarding the small presses given the extant state of the art and the special
type of operations used with these machines.� The judge did not, however,
underpin this general finding with an analysis of the evidence on each of the
guarding methods in terms of the employer�s defenses of impossibility and
greater hazard. See discussion infra.

[8] This case
involves the question of whether Vampco failed to abate violations rather than
whether Vampco violated the Act in the first instance. The Commission has held,
however, that in a failure to abate proceeding the employer may defend by
showing that the condition for which it was originally cited was in fact
nonviolative of the Act. York Metal Finishing Co ., 74 OSAHRC 19/D2, 1
BNA OSHC 1655, 1973�74 CCH OSHD �17,633 (No. 245, 1974). Normally, therefore,
these defenses that could have been raised to the original citation may also be
raised in a failure to abate proceeding.