Amerisig Southeast, Inc.

Plain-English summary

Three Amerisig employees suffered serious hand injuries from unguarded printing or binding machinery over eight months. The citation on review arose when a press unexpectedly reversed during the webbing-up process and pulled an employee's hand into the rollers. The Commission found that an uncontested citation for a nearly identical incident had become final one day before this later violation occurred. Both incidents involved employees pulling paper through rollers that reversed unexpectedly, creating the same hand-entanglement hazard. The Commission reversed the judge's classification and found the violation repeated. It assessed a $15,000 penalty rather than the proposed $25,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1)
• Outcome: The machine-guarding violation was reclassified as repeated, and a $15,000 penalty was assessed.
• Key point: A prior citation under the same standard supports a repeat classification when both violations expose employees to substantially the same machine-entanglement hazard.

Full text (OSHRC public release)

                                     :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 93-1429
:
AMERISIG SOUTHEAST, INC., :
:
Respondent. :
:
:

                                  DECISION

Before: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:

  AMERISIG Southeast, Inc. (“Amerisig”) is a printing company based in Atlanta,

Georgia, which prints and binds magazines and color catalogues. Over a period of eight
months, three Amerisig employees suffered serious hand injuries. Each injury was
investigated by a compliance officer of the Occupational Safety and Health Administration
(“OSHA”) of the Department of Labor. In each instance, the Secretary of Labor issued

                                                              1996 OSHRC No. 23

2

Amerisig a citation alleging that the company had violated the standard at 29
C.F.R. § 1910.212(a)(1).1 Only the third of these citations is before us here. At issue on
review are whether the instant violation was a repeated violation, and, if so, what penalty is
appropriate. To determine whether the violation here was repeated, we must examine the
earlier citations.
The first citation, issued on August 5, 1992, was contested. The parties entered into
a settlement agreement, which was approved by an administrative law judge on December 9,
1992, and became a final order of the Commission by operation of law under 29 U.S.C. §
661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-
678 (“the Act”).
The second citation, which was issued on March 23, 1993, was received by Amerisig
on March 25, 1993. Under section 10(a) of the Act, 29 U.S.C. § 659(a), Amerisig had fifteen
working days to contest the citation or it would become a final order. Amerisig did not
contest that citation, and it became a final order on April 15, 1993.
On April 16, the injury occurred which led to the citation before us. OSHA
investigated and issued the citation at issue, which alleged a repeated violation of section
1910.212(a)(1) and proposed a penalty of $25,000. Administrative Law Judge Nancy Spies
found that Amerisig had committed a violation but that it was not a repeated violation
because she determined that the citation received by Amerisig on March 25 had not become
a final order when the April 16 violation occurred, and that the hazard presented by the

1
That standard provides:

   § 1910.212 General requirements for all machines.

   (a) Machine guarding—-(1) Types of guarding. One or more methods of
   machine guarding shall be provided to protect the operator and other
   employees in the machine area from hazards such as those created by point of
   operation, ingoing nip points, rotating parts, flying chips and sparks.
   Examples of guarding methods are—-barrier guards, two-hand tripping
   devices, electronic safety devices, etc.

3

August 1992 violation -- unguarded nip points on a binder -- was not substantially similar
to the hazard presented by the printing press at issue here. For the reasons below, we reverse
the judge.
A violation is a repeated violation under section 17(a) of the Act, 29 U.S.C. § 666(a),
if, when it is committed, there was a Commission final order against the employer for a
substantially similar violation. Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD
¶ 23,294, p. 28,171 (No. 16183, 1979). Contrary to the judge, we find that the citation
received by Amerisig on March 25 had become a final order before the April 16 violation
occurred. The first day of the statutory fifteen-working-day contest period was Friday,
March 26. The second was Monday, March 29. Counting the working days, we determine
that the fifteenth day was Thursday, April 15. Under Commission precedent, the
uncontested citation became a final order on that date. See All Phase Elect. & Maint. Inc.,
15 BNA OSHC 1301, 1303, 1991-93 CCH OSHD ¶ 29,482, p. 39,781 (No. 90-505, 1991).
Since the accident that forms the basis for this citation occurred on April 16th, there was a
prior final order in effect at the time of the violation in question.
The Secretary may establish a prima facie case of substantial similarity by showing
that the final order alleged a failure to comply with the same standard. The burden then
shifts to the employer to rebut that showing. Monitor Constr. Co., 16 BNA OSHC 1589,
1594, 1993-95 CCH OSHD ¶ 30,338, p. 41,825 (No. 91-1807, 1994) (citing Potlatch). The
violations covered by the second citation and the citation here were not only substantially
similar; they were nearly identical. Both occurred during the procedure known as “webbing
up” the printing presses, which involves threading a roll of paper through the rollers on the
press. In each case, the employee whose hand was injured was the one who was on the
outflow side of the rollers, attempting to pull through paper that was being fed into the other
side of the rollers by a colleague. In both cases, the injury occurred because the machine
unexpectedly operated in reverse briefly, pulling the employee’s hand into the rollers. The
only distinguishing fact is that the March accident was caused when the employee who was
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injured accidentally pushed the reverse button instead of the forward button, while the April
accident occurred when an employee working on another part of the printing press hit the
reverse button.2 That “distinction” is not enough to establish that the two violations were not
substantially similar. Indeed, the principal factor in determining whether a violation is
repeated is whether the two violations resulted in substantially similar hazards. Stone
Container Corp., 14 BNA OSHC 1757, 1762, 1987-90 CCH OSHD ¶ 29,064, p. 38,819
(No. 88-310, 1990). The March and April violations presented substantially the same hazard
of an employee’s hand being caught in unguarded rotating machinery. We thus find that the
two violations cited in 1993 were substantially similar and that therefore the violation before
us was repeated. Because we find that the violation was repeated on this basis, we need not
determine whether the August 1992 violation was substantially similar.
Section 17(j) of the Act, 29 U.S.C. § 666(j), provides that the Commission shall assess
an appropriate penalty for each violation, giving due consideration to the size of the
employer, the gravity of the violation, the good faith of the employer, and the employer's
history of previous violations. Amerisig has 2,500 employees. As for its history, Amerisig
had three violations in an eight-month period, all resulting in serious injuries. Although it
demonstrated a degree of good faith by promptly eliminating the possibility that the March
accident could recur the way it did, Amerisig did not completely eliminate the hazard.
Nevertheless, as the judge noted, Amerisig was very cooperative during the inspection. The
remaining factor is gravity, which the Commission has considered to be the principal factor.
E.g., Nacirema Operating Co., 1 BNA OSHC 1001, 1003, 1971-73 CCH OSHD ¶ 15,032,
pp. 20,043-44 (No. 4, 1972). Certainly the severity of any resulting injury was shown by the

2
We reject Amerisig’s argument that the violation should not be found to be repeated
because, following the March citation, it took the steps recommended by the OSHA
compliance officer. Although the company separated the forward and reverse buttons and
covered the reverse button so that it could not be activated accidentally, these steps did not
completely abate the hazard, because another employee working on a different part of the
machine could deliberately activate the machine in reverse without being aware that the
employee involved in webbing up the machine had his hands in the zone of danger.
 5

serious hand injuries suffered by the employees whose hands did get caught in the presses.
Six employees were on the crew; two were actively involved in the webbing up process,
which took five to six minutes. Given the frequency of the injuries to Amerisig’s employees,
three within eight months and two within six weeks, we conclude that the probability of
injury was high despite the precautions taken after the March citation. Therefore, we find
that the gravity was high. Upon consideration of all the factors above, we assess a penalty
of $15,000.
Accordingly, we find that Amerisig committed a repeated violation of 29 C.F.R.
§ 1910.212(a)(1) and assess a penalty of $15,000.

                                             /s/
                                             Stuart E. Weisberg
                                             Chairman


                                             /s/
                                             Daniel Guttman

Dated: July 2, 1996 Commissioner