Dietrich Industries, Inc.

Plain-English summary

A Dietrich Industries employee injured his finger while adjusting a stacker table as the steel-processing machine continued to run. Company procedure required shutting the machine off or placing it in a noncycling mode before making the adjustment. The employee said production needs sometimes required adjustment while running and that his foreman knew, while management witnesses denied any operational need or knowledge of the practice. The judge found the evidence evenly balanced on whether employee presence in the danger zone was reasonably predictable, so the Secretary did not meet her burden of proof. He also found that the Secretary failed to present evidence establishing Dietrich's employer status under the Act, which independently required judgment for the company. The citation and proposed $1,875 penalty were dismissed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: The serious machine-guarding citation and proposed $1,875 penalty were dismissed.
• Key point: When the evidence is evenly balanced on predictable employee exposure, the Secretary has not carried the burden of proving the violation.

Full text (OSHRC public release)

                        UNITED STATES OF AMERICA
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR
Complainant

              v.

DIETRICH INDUSTRIES, INC.,

      Respondent




      Docket Nr. 97-0803

Appearances
For Complainant: For Respondent:
Patrick L. DePace, Esq Robert B. Cottington, Esq
Office of the Solicitor Reed Smith Shaw & McClay
U.S. Department of Labor Pittsburgh, Pennsylvania
Cleveland, Ohio

Before:
JOHN H FRYE, III, Judge

                                   DECISION AND ORDER

      James Coyle caught his finger in a pinch point of the RBI 28’s stacker table on November 6,

1996. The resulting injury required treatment at the local hospital. OSHA inspected the factory where

Mr. Coyle works the following February and issued the following serious citation, seeking a penalty of

$1875.

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 29 CFR 1910.212(A)(3)(ii): Point(s) of operation of machinery were not guarded to prevent
employee(s) from having any part of their body in the danger zone(s) during operating cycle(s):

      The RBI 28 machine did not have guarding on the points of operation and the loading table.

The RBI 28 is some 85 feet long. It receives coils of steel at one end that it unrolls, flattens, and cuts

into preset lengths. The RBI 28 drops each length of cut steel onto a stacker table. It does this by

rotating ‘L’ shaped fingers holding the cut steel from underneath so that the steel falls onto the stacker

table. The stacker table is between four and five feet from the closest operator’s station. Mr. Coyle was

adjusting the stacker table when the RBI 28 cycled and pinched his finger between the machine’s frame

and one of its fingers.

Dietrich points out that Mr. Coyle was violating the RBI 28’s operating procedure by adjusting the

stacker table while it was operating, and Mr. Coyle acknowledges that he was supposed to turn the RBI

28 off or put it into ‘thread’ cycle before adjusting the stacker. Either action would have prevented the

injury to his finger. But, in order to save time and increase output, he didn’t do that. He said that it was

sometimes necessary to keep the RBI 28 running while adjusting the stacker and that his foreman knew

that. Mr. Mock, the foreman, said that he never saw Mr. Coyle in the stacker area with the machine

running, although he once saw another employee there and immediately corrected him.

The Commission has said that

      ... under Giles & Cotting [3 BNA OSHC 2002 (1976)] and Rockwell [9 BNA OSHC 1092
      (1980)], in order for the Secretary to establish employee exposure to a hazard she must show
      that it is reasonably predictable either by operational necessity or otherwise (including
      inadvertence), that employees have been, are, or will be in the zone of danger.

Secretary v. Fabricated Metal Products, Inc., Docket No. 93-1853 (Slip op. Nov. 7, 1997.)

Mr. Coyle said that operational necessity forced him into the zone of danger, while Dietrich urges that

it was his own misconduct that placed him there. Dietrich relies on the testimony of Mr. Good, the Plant

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Engineer, who said that there is absolutely no reason for an employee to be in the stacker area with the

machine running, as well as Mr. Mock. The most favorable interpretation of this evidence for the

Secretary requires the conclusion that it is in equipoise. Given that the Secretary bears the burden of

persuasion, this conclusion demands judgment for Dietrich.

One other point remains. This case was heard under the Commission’s EZ Trial Rules. Counsel for

the Secretary objected that he had not been informed that Dietrich contemplated raising the affirmative

defense of employee misconduct and had not provided him with copies of documents related to it that

would be offered in evidence. Counsel for Dietrich noted that the defense had been mentioned in the

context of settlement discussions with another attorney in the Solicitor’s office. Counsel for the

Secretary, although aware of the settlement discussions, regards this as insufficient notification to

satisfy the requirements of the Commission’s rules.

Rule 207(b) requires a respondent to disclose any affirmative defenses at the prehearing conference.

Counsel does not assert that this disclosure was made. However, the Solicitor’s office was on notice that

Dietrich would raise the defense of employee misconduct, and the Compliance Officer was provided a

copy of the Job Safety Analysis for the RBI 28. So the defense did not take the Solicitor by surprise. I

conclude that to require literal compliance with the rules in these circumstances would elevate form over

substance contrary to the intent of the EZ Trial Rules.

While on the subject of procedural irregularities, I must note that counsel for the Secretary did not

provide any evidence that Dietrich is an employer as contemplated by ' 3(3) and (5) of the Occupational

Safety and Health Act, as amended. This omission is jurisdictional, and also demands judgment for

Dietrich.

                                     CONCLUSION OF LAW

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 Dietrich Industries, Inc., was not in violation of 29 CFR 1910.212(a)(3)(iii).

                                              ORDER

Citation 1, item 1, is dismissed.




                                                           JOHN H FRYE, III
                                                           Judge, OSHRC

Dated:
Washington, D.C.

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