Bratton Furniture Manufacturing Company

Plain-English summary

OSHA cited Bratton Furniture Manufacturing Company because an overhead router was operated without its ring guard or another point-of-operation safeguard. The Commission held that the Secretary did not have to prove that guarding was feasible and that Bratton failed to establish an impossibility defense. Bratton's evidence showed only that a ring guard was not fully effective for every operation, while the record also showed that a jig could have protected the operator and was not used. The Commission reversed the judge, affirmed the serious violation of 29 C.F.R. § 1910.213(r)(4), and assessed the proposed $60 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.213(r)(4).
• Outcome: Serious citation item affirmed and a $60 penalty assessed.
• Key point: An employer claiming impossibility must show that compliance cannot be achieved and that alternative protective measures are unavailable.

Full text (OSHRC public release)

Docket No. 81-0799

SECRETARY OF LABOR,

Complainant,

v.

BRATTON FURNITURE MANUFACTURING

COMPANY,

Respondent.

OSHRC Docket No. 81-0799 S

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION

A decision of Administrative Law Judge John S. Patton is before the Commission 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 Patton vacated item 6 of citation issued
by the Secretary of Labor ("the Secretary") to Respondent, Bratton furniture
Manufacturing Company ("Bratton").  Item 6 alleges a serious violation of
the Act based on noncompliance with 29 C.F.R.�1910.213(r)(4) in the Bratton failed to
guard the point of operation of a woodworking machine identified as a Porter No. 500
overhead router.[[1]]  The judge vacated this item on the ground that "the
evidence reflects that a guard would not be feasible."  For the reason stated in
this decision, we reverse the judge and affirm item 6 of the citation.

In a case arising under section 5(a)(2) of the Act, the Secretary does not have the
burden of proving the feasibility of a means of abatement unless the express language of
the standard, e.g., 29 C.F.R. �1910.95(b)(1), the occupational noise standard, place that
burden on him; instead, the employer must prove an affirmative defense excusing its
failure to comply with the cited standard, e.g., impossibility or the greater hazard
defense.  Farmers Cooperative Grain & Supply Co., 82 OSAHRC ___, 10 BNA OSHC
2086, 1982 CCH OSHD �26,301 (No. 79-1177, 1982); Ed Cheff d/b/a Ed Cheff Logging, 81
OSAHRC 60/A2, 9 BNA OSHC 1883, 1981 CCH OSHD �25,431 (No. 77-2778, 1981), appeal filed,
No. 81-7493 (9th Cir. July 27, 1981).  Accordingly, the Commission has consistently
held, with reference to 29 C.F.R. �1910.212(a)(3)(ii), another general machine guarding
standard similar to the standard cited in this case, that the Secretary does not have the
burden of proving a feasible method of guarding a machine's point operation. [[2]] E.g.
American Luggage Works Inc., 82 OSAHRC 30/C7, 10 BNA OSHC 1678. 1982 CCH OSHD �26,072
(No. 77-893, 1982), appeal filed, No. 82-1572 (1st Cir. July 19, 1982).  To establish
an impossibility defense, an employer must prove either that compliance with the standard
would preclude performance of the required work or that compliance would be functionally
impossible.  The employer must also show that alternative means of protection were
unavailable.  American Luggage Works, Inc SUPRA; M.J. Lee Construction Co., 79 OSAHRC
12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD �23,330 (No.15094, 1979).  It is not a defense
under the Act that compliance with a standard would be merely difficult, inconvenient or
expensive.  See, e.g., George C. Christopher & Son, Inc., 82 OSAHRC 9/A2, 10 BNA
OSHC 1436, 1982 CCH OSHD �25, 956 (No. 76-647, 1982); National Industrial Constructors,
Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD �25,743 (No. 76-4507, 1982).

On review in this case, the Secretary argues that Judge Patton erred to the extent that
he placed on the Secretary the burden of proving the feasibility of guarding the router's
point of operation or, alternatively, erred to the extent that the he recognized an
affirmative defense of "impracticality."  Based on the precedent set forth
above, we agree that the judge erred. [[3]]

The issue in this case, properly formulated, is whether Bratton established an
impossibility defense.  We conclude that it did not.  When viewed in a light
most favorable to Bratton, its evidence establishes at most that a ring guard does not
provide totally effective protection and that a ring guard precludes the performance of
some but not all operations on the router.  However, neither the fact that a guard is
not totally effective nor the fact that a guard cannot be used for all operation provides
a sufficient basis for sustaining an impossibility defense.  See American Luggage
Works, Inc., supra; A & S Millworks & Rentals, 77 OSAHRC 213/A2, 6 BNA OSHC 1212,
1977-78 CCH OSHD  �22, 425 (No. 15052, 1977).  As we states recently in Farmers
Cooperative Grain & Supply Co., supra, "Even in full compliance with a standard
cannot be achieved, an employer must nevertheless protect its employees to the extent
possible against the hazards to which standards are directed."  10 BNA OSHC AT
2089, 1982 CCH OSHD AT P.33,263.

We reject Bratton's impossibility defense for another reason as well.  As
indicated, in order to sustain an impossibility defense, the employer must show that
alternative means of protection were unavailable.  Here, however, the record
establishes the contrary, i.e., that there was an alternative means of protection that
could have been but was not used.  The compliance officer testified that a
"jig" is a device used to hold the material being operated on in a fixed
position while keeping the operator out of the zone of danger.  He indicated that the
jig is an acceptable alternative to a guard when use of the guard is not "practical."[[4]]
  However, he also testified that, during the last operation of the machine prior to
his inspection, the router was used without either a guard or a jig.  Thus, although
there was an alternative means of protecting the machine operator, that means was not
used.

We further conclude that the record sustains the violation alleged in item 6, including
the allegation that the violation was "serious" as defined at section 17(k) of
the Act, 29 U.S.C. �666(j).  As stated, the router was used while the ring guard was
removed and no other from of point-of-operation guarding was provided.  The operator
was thereby exposed to the hazard of possible severe lacerations or amputation of a finger
if he contacted  the small, high-speed, rotating blade at the router's point of
operation.  Bratton either knew or should have known that the router was operated
without the guard and without using jig.

Accordingly, because the evidence sustains the alleged violation and Bratton failed to
establish its impossibility defense, we reverse Judge Pattom's decision and order to the
extent that it vacated item 6 of citation no. 1.  The citation item is affirmed.
  The Secretary proposed that a $60 penalty be assessed for this violation.
  Having considered the penalty assessment criteria set forth in section 17(j) of the
Act, 29 U.S.C. � 661(i), with particular emphasis on appropriate.  A penalty of $60
is therefore assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 27 1983

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