Waterbury Style, Inc.

Plain-English summary

Waterbury Style used a foot-operated kick press to assemble belt buckles. The operator needed both hands during the process and at times placed fingers in, or within a few inches of, the press's point of operation. The judge found the guarding violation clear because the standard requires a device that prevents any body part from entering the danger zone during the operating cycle. He did not find the violation serious, however, because the record of finger injuries did not establish a substantial probability of serious harm; most reports described cuts, pinches, scrapes, or a sprain, and only one report described a possible fracture. The citation was reclassified as nonserious, but the proposed $750 penalty was assessed because it remained appropriate under the statutory penalty factors.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.212(a)(3)(i) and 1910.212(a)(3)(ii).
• Outcome: Modified. The machine-guarding citation was affirmed but reclassified from serious to nonserious, with the $750 penalty unchanged.
• Key point: A press violates the point-of-operation rule when its cycle permits an operator's fingers to enter the danger zone, even if the evidence does not support a serious classification.

Full text (OSHRC public release)

                           UNITED STATES OF AMERICA
 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            One Lafayette Centfe
                      1120 20th Street, N.W. - 9th Floor
                         Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-0685
WATERBURY STYLE, INC.
\ Respondent.

                 NOTICE OF DOCKETING
          OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on January 5, 1995. The decision of the Judge
will become a final order of the Commission on February 6, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
January 2P, 1995 in order to ermit su ik cient time for its review. See
Comrmssion Rule 91, 29 C.F. k . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:

                    Executive Secretary
                    Occupational Safety and Health
                     Review Commission
                    1120 20th St. N.W., Suite 980
                    Washington, D.C. 20036-34 19

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, DC. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent th.e Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

                                   FOR THE COMMISSION

Date: January 5, 1995
DOCKET NO. 94-0685
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Albert H. Ross, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
One Congress Street, ?lth Floor
P.O. Box 8396
Boston, MA 02114

Barrett Metzler, CSP
Northeast Safety Management, Inc.
PO Box 330733
West Hartford, CT 06133

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an f Health
Review Commissfon
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00123211419:01
 UNITE0 STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFlCE AND COURTHOUSE
ROOM 420
BOSrON, MASSACtiUSErrS 02109-4501

PHONE: EM:
CObI (617) 223-9746 COM (617) 223-W
FE 2234004
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SECRETARY OF LABOR, l
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                  Complainant,                                ..
                                                               ..
                  v.                                          l
                                                               .        OSHRC Docket No. 944685
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WATERBURY STYLE, INCm 0
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                  Respondent.                                  l
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Appearances:

     Susan Sal&erg, Esq.                               Barrett Metzler, CSP
             Office of the Solicitor                           Northeast Safety Management,   Inc,
             U.S. Department of Labor                          West Hartford, CT
                      For Complainant                                   For Respondent

Before Administrative Law Judge Richard DeBenedetto

                                     DECISION AND ORDER
      Waterbury         Style, Inc. (Waterbury),   was cited on February 24, 1994, for serious

violation of the machine guarding standard at 29 C.F.R. 8 1910.212(a)(3)(ii), which requires
that the point of operation of machines whose operation exposes an employee to injury shall
be guarded. The Secretary proposes that a penalty of $750 be assessed for the violation.
The subject of the citation involves a foot-operated “kick press” used at Waterbury’s
facility to assemble belt buckles. The press is operated from a sitting position and activated
by a foot pedal. During the assembly operation of joining the “tongue” to the buckle frame,
the operator must use both hands. Waterbury’s supervisor, Ben Finnemore, testified that
at a certain step in the process, the operator places the fingers of one hand in the point of
operation and, at another stage, the operator’s fingers are only a few inches from the point
of operation (Tr. 100, 107).’ The press operators’ exposure to the hazard of having their

‘“Point of operation” is the area on a machine where work is actually performed upon the mate&l being
processed. 29 C.F.R. 0 1910.212 (a)(3)(i).
fingers struck by or caught in a pinch point created by the moving parts of the press was
vividly depicted by the Secretary’s videotape of the press in operation as well as Waterbury’s
own presentation of a kick press at the hearing, the operation of which was explained by
supervisor Finnemore.
The 212(a)(3)@) standard states simply and flatly, “[the guarding device] 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.” Guided by the foregoing language, one has
considerable difficulty in understanding why Waterbury went to a great deal of trouble
mounting a challenge such as that displayed during the hearing regarding the issue of point
of operation exposure-a matter so plain that no room is left for doubt or dispute.
The Secretary’s characterization of the violation as serious presents a very different
situation. A violation may be considered serious “where, although the accident itself is
merely possible (i.e., in statutory terms [29 U.S.C. 0 666(k)] ‘could result from a condition’),
there is a substantial probability of serious injury if it does occur.” SCUZIV
Cortst., Inc. V.
OSHRC, 534 F.2d 1183, 1185 (5th Cir. 1976). The record does not support a factual
conclusion that the unguarded kick press presented a substantial probability of serious injury.
The Secretary called Manivone Pothitay who testified that she had worked at
Waterbury’s facility in September 1993 at which time she injured her finger while operating
the kick press. Although she indicated that she thought she had “broken” her finger, her
testimony was so fraught with vagueness, it failed to shed any light on the nature and extent
of her injury (Tr. 83, 89). The Secretary also presented six reports of occupational injury
for state worker’s compensation purposes covering the period from September 1993 to April
1994 (Exh. C-2). The reported injuries, which were all related to the operation of the kick
press, are variously described as follows: “hurt” index fmger;2 tip of index finger “cut”;
“pinched” index finger; “scraped skin” of thumb and forefinger; “sprained” middle finger;
middle finger “broke in 2 places.” Of the six injuries reported, only the latter would clearly
qualify as serious. However, because the nature of the injury is worded in the nonmedical

%is report concerned the witness Manivone Pothitay who sustained her injury on September 2,1993 (Exh.
c -2) .

                                                2

vernacular, some doubt is raised as to its accuracy. Waterbury steadfastly denied having
knowledge of any injury involving a “broken” finger resulting from operating the press. But
even if we accept the injury as a fracture of the finger, a single instance of such an injury
does not meet the “substantial probability” requirement of a serious violation.
The parties saw fit to expend much time and effort debating the serious classification
of the citation despite the fact that the issue really has no practical significance in this case.
As it was made plain during the hearing, Waterbury would be required to abate the
unguarded kick press whether the citation was labeled serious or nonserious, and the $750
penalty proposed by the Secretary is so moderate that its assessment under the penalty
criteria of 29 U.S.C. 8 666(j) would be equally appropriate for a nonserious violation.
Based upon the foregoing findings and conclusions, it is
ORDERED that the citation is affirmed as a nonserious violation and a penalty of $750 is
assessed.

                                           m

                                         RICHARD DeBENEDETTO
                                         Judge, OSHRC

Dated: December 21B 1994
Boston, Massachusetts