Riverdale Mills Corporation

Plain-English summary

Riverdale Mills manufactured wire mesh at its Northbridge, Massachusetts, plant. An operator's glove or shirt sleeve caught on a sharp wire panel while he fed it into a flattening machine, pulling his hand into the rollers and breaking three fingers. The judge found the company's hand-protection policy contradictory because it warned against gloves near moving machinery while allowing operators to choose gloves to avoid cuts from the wire. He also found that the machine's trip cord did not prevent hands from reaching the ingoing rollers and that feasible guards included a modified barrier funnel and a light curtain. The infeasibility, greater-hazard, and employee-misconduct defenses failed because protective alternatives existed and operators routinely kept their hands on the panels without effective enforcement. Both violations were affirmed as serious, with penalties totaling $4,900.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.138(b), 29 C.F.R. § 1910.212(a)(1)
• Outcome: Affirmed. The hand-protection and machine-guarding violations were affirmed as serious, with a $2,450 penalty for each.
• Key point: Hand-protection selection must address all interacting hazards, and an emergency trip device does not substitute for guarding that prevents access to an ingoing nip point.

Full text (OSHRC public release)

                                     United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                 1120 20th Street, NW, Ninth Floor
                                   Washington, DC 20036-3419

Telehone: (202) 606-5405 Fax: (202) 606-5409

                                :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC DOCKET NO. 99-1836
:
RIVERDALE MILLS CORPORATION, :
Respondent. :
______:

APPEARANCES:

                Paul J. Katz, Esquire                        Warren G. Miller, Esquire
                Boston, Massachusetts                        Boston, Massachusetts
                For the Complainant.                         For the Respondent.

BEFORE: G. MARVIN BOBER
Administrative Law Judge

                                  DECISION AND ORDER

Background and Procedural History
This case is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(1970) (“the Act”), to review (1) citations issued by the Secretary of Labor pursuant to section 9(a)
of the Act, and (2) proposed assessments of penalties pursuant to section 10(a) of the Act. On April
2, 1999, an employee of Respondent was injured while operating a machine called a Peck Shear and
Flattener. As a result of the accident, the Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of the site, after which Respondent was issued a two-item serious citation
alleging violations of 29 C.F.R. §§ 1910.138(b) and 1910.212(a)(1) and proposing a total penalty of

                                                1

$4,900.00. Respondent timely contested the citation, and, following the filing of a complaint and
answer and pursuant to a notice of hearing, the case was heard in Worcester, Massachusetts on
February 16 and 17, 2000. Both parties have filed post-trial briefs.
Jurisdiction
The parties agree that Respondent, Riverdale Mills Corporation, is an employer engaged in
interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5), and that the
Commission has jurisdiction over this case.
Stipulations
The parties stipulated to the following, as set out in Exhibit ALJ-1:
1. The parties agree that the OSHRC has jurisdiction of this matter and that Respondent is
a covered employer within the meaning of the Act.
2. This case involves alleged violations of the Act on or about April 2, 1999 at its
manufacturing place of business at Northbridge, Massachusetts.
3. Respondent employed approximately 150 persons. Among these employees on or about
April 2, 1999 were:
James Knott, Sr. President, CEO
Jacqueline Boutin Head of Human Resources/Safety
Ronna Dugdale Machine Operator
Judith Pare Operator of Peck Shear
Priscilla Beauregard Lead Shear Operator
Dennis Meola Supervisor, First Shift
David Geeza Plant Manager1
Norman Baillargeon Supervisor, Second Shift
Paul DiMauro Chief of Maintenance
Panages Bebedelis Machine Operator, Injured employee
Nestor Cabrera Material Handling Man
Michael Martel Coating Line Lead Man
Mark Lyon Maintenance Man
4. The two OSHA investigators to inspect Respondent’s workplace in this action are Theresa
Dann and Nelson Barnes.

   1
      Although the stipulations list Mr. Geeza and Mr. Knott both as President, Mr. Geeza stated

at the trial that he was the plant manager. (Tr. 336).

                                             2

5. The Peck Shear and Flattener serves two functions. This matter concerns only the flattening
function of the Peck machine. The Peck machine is used for flattening wire only about 12 hours a
month. One customer of Respondent requires that the curvature (or bow) in the rectangular sections
of the wire (or panels) be flattened out. In this operation, the operator feeds (at about belt level) a
rectangle of galvanized wire into the flattener portion of the Peck machine. The employee stands at
a particular operator station to perform this task, as opposed to his position when operating the
machine as a shear for rolls of wire mesh, as opposed to panels.
6. A trip cord has always existed just above the rollers of the Peck machine. Touching this
wire anywhere shuts the flattener down.
7. Complainant in this action contends and Respondent disputes that the employee operating
the flattener task is exposed to the hazard of having his fingers drawn into the machine, and that
Respondent should install a guard to prevent this eventuality from occurring.
Respondent asserts that (1) a guard is not needed, (2) a guard (the trip wire) was already in
place, (3) any other guard is infeasible, and (4) any additional guard would create a greater hazard.
Respondent contends that the accident was attributable to employee misconduct, inattention, and
failure to observe operating instructions he had been trained to observe.
8. On April 2, 1999, employee, Panages Bebedelis injured himself while operating the Peck
flattener.
9. No Final Orders of the Occupational Safety and Health Review Commission exist as to
Respondent’s workplace.
The Accident
Respondent, a wire mesh manufacturer, utilizes a machine called the Peck Shear and Flattener
(“the Peck machine”) to cut wire mesh from rolls into panels and to flatten the wire mesh panels. The
flattening operation at issue in this proceeding is performed only about 12 hours a month because
Respondent has one or two customers that require the wire mesh panels they purchase to be flattened
in order to eliminate the bow or curvature in the panels. (Stipulation 5).
On April 2, 1999, Panages Bebedelis, Respondent’s employee, was operating the flattener
function of the Peck machine. In particular, he was feeding galvanized wire mesh panels 70 inches
wide by 22 inches long between the flattener’s upper roller and lower roller, which rotate parallel to

                                              3

each other but in opposite directions, thereby grabbing and pulling the panel being fed into the
flattener. To perform this work, Mr. Bebedelis fed each panel into the rollers at a slight angle and then
pushed down on the panel as it was being pulled into the machine. He also wore gloves while doing
this work to keep his hands from being lacerated or punctured by the panels, which were coarse and
had sharp edges. The accident occurred as Mr. Bebedelis was feeding a panel into the machine and
a shirt sleeve or a glove caught on the panel. His hand was pulled into the rollers before another
employee was able to shut the machine off, and, as a result, three of his fingers were broken.2 (Tr.
61, 106-07, 112-14, 121-22, 156, 410-11).
After learning about this incident from the local police department, Compliance Officer
(“CO”) Theresa Dann and her supervisor, Nelson Barnes, investigated the accident from April 26-28,
1999. (Tr. 147-51). As a result of their investigation, OSHA issued the subject citation.
The Relevant Testimony
Priscilla Beauregard, the lead operator on the Peck machine, testified that she had trained Mr.
Bebedelis on the machine and told him that it was optional to wear gloves to protect his hands from
the wire mesh panels. She further testified that she herself did not wear gloves because if they got
caught on a panel, her hands would be pulled into the machine and her fingers could be broken or
crushed as a result; however, she said that many other operators wore gloves to protect their hands.
Ms. Beauregard confirmed that at her deposition she had stated that if gloves were caught on a wire
mesh panel, there would not be enough time to get one’s hands out. She noted that after the accident,
Respondent had changed its policy so that only fingerless gloves could be worn when operating the
Peck machine. (Tr. 36-39, 49-54, 70).
Judith Pare, a Peck machine operator, testified that when she operated the machine she
pressed her hand on top of the panel to flatten it to facilitate its insertion in between the rollers. She
further testified that operators needed to concentrate in order to not get their hands pulled into the
rollers if a glove or a part of a shirt happened to catch on a sharp spot on the panel. Ms. Pare said that
she herself wore gloves to protect her hands from the sharp edges and spots on the panels. She also

    2
  At the trial, Respondent objected to the admission of statements Mr. Bebedelis made to the

CO. However, as my findings do not rely on his statements, I need not determine this issue.

                                                4

said that after the accident, Respondent installed a guard on the Peck machine. Ms. Pare stated that
the purpose of the guard was safety. (Tr. 83-91, 94, 99).
Ronna Dugdale, another machine operator, testified that when she operates the Peck machine
she normally puts her hand in the middle of the mesh panel to flatten it so that the panel can be
inserted into the machine. She also testified that she does not wear gloves anymore because when she
did they got caught on the mesh panel. (Tr. 325-30).
Nestor Cabrera, an employee who was working with Mr. Bebedelis, witnessed the accident.
He testified that Mr. Bebedelis was pushing down on the panel to get it in between the rollers and was
talking to him as he did so, and he noted that it was well known in the plant that Mr. Bebedelis was
a “talker.” He further testified that Norman Baillargeon, a supervisor, told Mr. Bebedelis to “pipe
down” and get back to work but that Mr. Bebedelis continued to talk. According to Mr. Cabrera, Mr.
Bebedelis’ hand got caught in the machine while he was talking, and he (Mr. Cabrera) reached over
and hit the trip wire to turn the machine off. Mr. Cabrera stated that Mr. Bebedelis did not hit the trip
wire or the switch on the control box because “everything happened so fast” and he was “pretty
excited.” Mr. Cabrera also stated that before the accident, all of the other machines had guards. (Tr.
103-07, 111-14, 119-24, 128).
Theresa Dann, the OSHA CO, testified that she investigated the accident after receiving a
referral from the local police department and that after she visited the plant on three consecutive days
the company refused to allow her to return for any further investigation. She said that at the time of
the accident there was no physical barrier or guard to protect employees’ hands from the Peck
machine’s ingoing nip points, which she defined as areas where rotating objects, such as rollers, run
toward each other. She also said that training was insufficient to protect employees from ingoing nip
points because injuries could result from inattention. The CO stated that a guard was in place on the
Peck machine at the time of her inspection and that David Geeza and Priscilla Beauregard both told
her that the funnel device on the machine was a guard. According to the CO, this guard was not
sufficient to abate the hazard and the guard’s opening needed to be narrowed and placed further back
toward the operator. (Tr. 147-56, 159-60, 175-77, 292).
CO Dann also testified that Respondent gave its employees the option of wearing gloves, even
though its employee manual prohibited the use of gloves around moving parts of machinery, and that

                                               5

wearing gloves increased the likelihood an operator might be injured. She said the machine guarding
violation and the failure to provide appropriate hand protection violation were related in that the use
of gloves on the unguarded machine created a hazard. (Tr. 190-92, 196, 287-92 C-3). 3
David Geeza, the plant manager, testified that he overheard Mr. Bebedelis talking loudly when
the accident occurred and that he had noticed Mr. Bebedelis talking loudly in the past. Although Mr.
Geeza had spoken to Mr. Bebedelis about talking too much, he had never disciplined Mr. Bebedelis
in this regard. (Tr. 337, 349-50).
Paul DiMauro, the plant maintenance manager, testified that a funnel device and a light curtain
were installed on the Peck machine after the accident. He further testified that funnel devices were
installed on all the other machines before the accident. According to Mr. DiMauro, the funnel devices
did not protect employees, but, rather, created an “equal hazard.” (Tr. 135-40).
James Knott, Respondent’s president and CEO, testified that it was not feasible to guard the
Peck machine and that only “training, training, training” could make the machine safer. He further
testified that the barrier guard the CO recommended could amputate fingers if the hand got caught.
According to Mr. Knott, the funnel device was installed on the Peck machine to improve productivity,
and the light curtain was installed with a footpad because the mesh panel would interfere with the
light curtain. (Tr. 364-65, 372, 380).
Jacqueline Boutin, Respondent’s human resource manager, is responsible for general safety
training at the plant. She testified that the company policy gave employees the option of wearing
gloves and that this policy had been developed by observation. (Tr. 399, 430).
The Secretary’s Burden of Proof
In order to establish a violation of a specific standard, the Secretary must show by a
preponderance of the evidence that: (1) the standard applies to the cited condition; (2) there was a
failure to meet the terms of the standard; (3) employees had access to the violative condition; and (4)
the employer either knew, or with the exercise of reasonable diligence could have known, of the
violative condition. Halmar Corp., 18 BNA OSHC 1014, 1016 (No. 94-2043, 1997); Atlantic
Battery Co., 16 BNA OSHC 2131, 2138 (No. 20-1747, 1994).

   3
    Complainant’s and Respondent’s exhibits are identified as “C” and “R,” respectively.


                                              6

Serious Citation 1, Item 1 – Proposed Penalty: $2,450.00
This item alleges a violation of 29 C.F.R. § 1910.138(b), which provides as follows:
Employers shall base the selection of the appropriate hand protection on an evaluation
of the performance characteristics of the hand protection relative to the task(s) to be
performed, conditions present, duration of use, and the hazards and potential hazards
identified.
The Secretary asserts that Respondent failed to base its selection of the gloves its employees
wore to operate the Peck machine on an evaluation of the performance characteristics of the gloves
relative to the tasks to be performed and the hazards identified, as required by the standard. The
Secretary further asserts that Respondent did not actually evaluate its hand protection policy until
after the accident. Respondent contends that it satisfied the requirements of the standard by providing
employees gloves to use when handling the wire mesh panels to protect their hands from injuries
contemplated by the standard, such as cuts, abrasions and punctures.
The standard specifically requires the employer to base its selection of appropriate hand
protection on an evaluation of not only the tasks to be performed but also on the “hazards and
potential hazards identified.” At the time of the accident, Respondent had a written rule prohibiting
the use of gloves near moving machinery. (Tr. 185; C-3). However, Respondent gave employees the
option of wearing gloves while operating the flattener function of the Peck machine to protect their
hands from cuts, abrasions and punctures.4 (Tr. 190-91). Respondent’s policy of allowing employees
to wear gloves if they wanted to when using the flattener was clearly contradictory to the work rule
prohibiting the use of gloves near moving machinery. The company properly identified the hazard of
wearing gloves near moving machinery, and it also properly identified the hazard of cuts, abrasions
and punctures from handling the wire mesh panels. However, instead of evaluating these two hazards
in conjunction and devising work rules that would give clear instructions to employees and provide
protection against both hazards, Respondent had a policy that was by its own terms contradictory and

   4
     Although Jacqueline Boutin, Respondent’s human resources manager, initially testified that

“there was no policy of not wearing gloves” for operating the flattener, she then testified that the
policy was that employees could wear gloves if they wanted to and that the company had developed
this policy by observation. (Tr. 430).

                                              7

that put employees in the position of having to choose between the hazard of broken fingers and/or
crushed hands and hazards such as cuts, abrasions and punctures.
Testimony in the record illustrates the employees’ dilemma. Priscilla Beauregard, the lead
operator who trained other employees on the machine, testified that the gloves could catch on the
wire panels and pull employees’ hands into the machine. She also testified that the rollers could break
fingers or crush hands, and that she did not wear gloves due to this hazard. (Tr. 37, 39, 50-51).
Ronna Dugdale, another employee who operated the machine, did not wear gloves for the same
reason, but she and Ms. Beauregard testified that most of the employees who used the machine wore
gloves. (Tr. 49-50, 329-31). Judith Pare, another Peck machine operator, testified that she wore
gloves to protect her hands despite the danger of injury if a glove were to catch on a panel and pull
her hand into the rollers. (Tr. 89-91). Mr. Bebedelis also wore gloves, and, as noted above, he was
injured when a glove or sleeve caught on the wire panel and his hand was pulled into the machine.
Based on the evidence of record, the Secretary has established the applicability of the
standard, noncompliance with the standard’s terms and employee access to the violative condition.
The Secretary has also established Respondent’s knowledge of the condition, particularly in light of
the company’s own contradictory work rules. Respondent’s written rule prohibiting the use of gloves
near moving machinery and its subsequent modification of that rule allowing operators to wear gloves
demonstrate Respondent’s actual knowledge of the violative condition. However, even if Respondent
had not had these contradictory work rules, the violative condition was clearly detectable in the
exercise of reasonable diligence, in that most if not all of the operators were aware of the hazard of
wearing gloves while using the Peck machine.
Finally, the Secretary has established that the violation was serious. There was a substantial
probability that the cited condition could have resulted in serious physical harm. Although
Respondent’s failure to require employees to use gloves when handling the wire panels was not likely
to cause serious injuries, its failure to enforce its rule prohibiting the use of gloves near moving
machinery could have caused, and did cause in this case, serious injuries such as broken fingers or
crushed hands. Moreover, the company’s failure to properly evaluate the work being done and the
hazards the work presented contributed to the serious nature of the violation, especially since most

                                              8

of the employees who used the machine chose to wear gloves. This citation item is accordingly
affirmed as a serious violation. The penalty assessed for this item is set out infra.

Serious Citation 1, Item 2 – Proposed Penalty: $2,450.00
This item alleges a violation of 29 C.F.R. § 1910.212(a)(1), which states as follows:
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.
The Secretary contends that the trip wire located just above the rollers on the flattener was
an insufficient means of protection from the ingoing nip point of the flattener and that Respondent
violated the standard. Respondent contends that the Secretary has not met her burden of proving a
violation, asserting that the trip wire provided adequate protection from the flattener’s rollers and was
an acceptable guarding means. Respondent also contends that any other means was infeasible and a
greater hazard, and that the accident was due to unpreventable employee misconduct.
Respondent maintains that the Secretary has failed to meet her burden of proving that there
is an ingoing nip point between the flattener’s rollers, asserting that, because the rollers are offset and
never come into contact with each other, there is no nip point. I disagree. Although the standard itself
does not define the term “nip point,” Respondent’s assertion that the rollers must come into contact
with each other in order to fall within the definition of a nip point is simply unpersuasive, and
Respondent offers nothing in support of its position. I find the CO’s definition of a nip point more
convincing. According to the CO, a nip point can be created by two rollers coming together, one
running clockwise, the other running counterclockwise. (Tr. 230). The CO also testified that there
is no requirement that the rollers come in direct contact with one another; rather, close proximity is
enough to create a nip point. Id. I am persuaded that this description falls within the definition of an
ingoing nip point as contemplated by the standard. Regardless, even assuming arguendo that
Respondent’s position is correct, I would nonetheless find a violation. The standard sets out several
types of hazards that machine operation may present, including “point of operation” and “rotating
parts” hazards, either of which could apply to the rollers of the flattener in this case.

                                                9

Respondent also maintains that the standard requires only one method of guarding and that
the trip wire on the Peck machine met the standard. Again, I disagree. First, although the standard
gives the employer flexibility in choosing an appropriate guarding method, it explicitly requires “one
or more” guarding methods to be provided to protect the operator and other employees from hazards
created by machine operation. Second, accepting Respondent’s argument would allow an employer
to utilize any one method on any machine, regardless of whether that method actually provided
adequate protection for employees. Third, it is clear from the accident in this case that the trip wire
on the Peck machine did not satisfy the standard. Although Respondent asserts that the trip wire is
a “two-handed tripping device” as described in the standard, I find that it is not. The term “two-
handed tripping device” clearly suggests a device that requires two hands to activate the machine,
thus keeping an operator’s hands out of the machine’s operation. The trip wire, on the other hand,
shuts the flattener down when it is touched “anywhere.” See Stipulation 6. I find that the Secretary
has satisfied her burden of showing Respondent’s failure to meet the terms of the standard.
The Secretary has also met her burden of showing employee access to the violative condition
and employer knowledge of the condition. It is undisputed that employees had access to the violative
condition at least 12 hours a month. See Stipulation 5. Furthermore, Respondent clearly had
knowledge of the condition. Respondent emphasized to its employees how dangerous the machine
was and how important it was for employees to concentrate while operating the machine. (Tr. 37-39,
90-91, 94-95, 99, 350). Accordingly, based on the evidence of record, the Secretary has satisfied her
burden of proving all elements of her prima facie case.
As indicated above, Respondent contends that the trip wire was the only feasible means of
guarding that would not destroy the flattener’s functional utility.5 To prove the affirmative defense
of infeasibility of compliance, the employer must show that (1) literal compliance with the standard
was infeasible under the circumstances and that (2) either an alternate means of protection was used
or no alternate means was feasible. State Sheet Metal Co., 16 BNA OSHC 1155, 1160 (Nos. 90-1620

    5
    In Respondent’s post-trial brief, Respondent urges this court to accept its analogy of the

Peck machine to three-roller printing ink mills. (R. Brief, pp. 9-10). Respondent has not demonstrated
why such an analogy is applicable in this matter. Without showing that the features of the two
machines are similar, the safety standards applicable to three-roller printing ink mills cannot be relied
upon as an appropriate standard for the Peck machine.

                                               10

& 90-2894, 1993); Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1226-28 (No. 88-
821, 1991). Respondent has failed to prove its asserted defense for the reasons set out below.
The record clearly shows that there were at least two feasible methods available–light curtains
and barrier guards. After the accident, Respondent installed light curtains on the machines in the
facility, including the Peck machine. (Tr. 135-37). Respondent initially claimed that the light curtain
destroyed the functional utility of the Peck machine because the curtain shuts the machine off every
time a wire mesh panel is inserted into the rollers. Id. However, Respondent made modifications to
the light curtain to fix this problem, that is, a foot pedal that the operator could use to restart the
machine if the light curtain shut it off. (Tr. 137-38). The light curtains are still in use at the plant. (Tr.
138). In my view, this evidence establishes that the light curtain was a feasible alternative means of
protecting employees from the ingoing nip point of the flattener’s rollers.
The record further shows that before the accident, the other flattening machines in
Respondent’s facility had funnel devices on them, and that after the accident, a funnel device was
installed on the Peck machine.6 (Tr. 138-39). James Knott, Respondent’s president and CEO, testified
that the funnel device was installed on the Peck machine for production reasons, not safety reasons,
and Paul DiMauro, the chief of maintenance, agreed. (Tr. 135-36, 371-72, 380). However, Judith
Pare testified that she believed the device was put on the Peck machine for purposes of safety, not
productivity. (Tr. 83). She further testified that if “all that safety stuff” (i.e., the guard) was not on
the machine, hands could be pulled into the rollers. (Tr. 88-89). I am persuaded by the record that
the funnel device was installed on the Peck machine for safety reasons. I am also persuaded, based
on the CO’s testimony, that the funnel device on the Peck machine would be an effective guard if
modified. The CO testified that the opening on the device could be decreased from 15/16th-inch to
½ inch and that the device could be moved further from the rollers, thereby creating an effective
guard and leaving enough room to insert the wire mesh panels.(Tr. 175-77). In light of this evidence,
I find that a ½-inch opening on the guard would be sufficient to insert a 16-gauge wire mesh panel
and that modifying the guard in this manner would not destroy the functional utility of the Peck

    6
    Although Respondent uses the term “funnel device” rather than “guard,” it is clear from the

record both terms refer to the device that was installed on the Peck machine, and, for purposes of this
discussion, the terms will be used interchangeably. This device is identified with two circles on C-6.

                                                 11

machine.7 On the basis of the evidence on the record, I conclude that Respondent has not met its
burden of proving the affirmative defense of infeasibility of compliance.
In support of its asserted defense of greater hazard, Respondent points to the testimony of
James Knott and Paul DiMauro that modifying the funnel device would result in fingers being
amputated if the operator’s hand were to be caught between the funnel device and the wire mesh
panel. (Tr. 140, 365). To establish this affirmative defense, the employer must demonstrate that: (1)
the hazards of complying with the standard are greater than the hazards of noncompliance, (2)
alternative means of protecting employees were used or unavailable, and (3) application for a variance
pursuant to section 6(d) of the Act would be inappropriate. State Sheet Metal Co., 16 BNA OSHC
1155, 1159 (Nos. 90-1620 & 90-2894, 1993); Russ Kallar, Inc., 4 BNA OSHC 1758, 1759 (No.
11171, 1976). I find that Respondent has not met the elements of this defense. First, based on the
CO’s testimony set out above, I do not find credible the testimony of Messrs. Knott and DiMauro
that modifying the funnel device could result in amputated fingers. (Tr. 175-77, 182-83). Second,
Respondent has not shown that alternative protective methods were unavailable; in this regard, I note
the evidence about the light curtain on the Peck machine, set out supra. Third, Respondent presented
no evidence that it applied for a variance or that application for a variance would have been
inappropriate. The Commission has held that the variance requirement is very much a part of the
burden of proof and that if the employer presents no evidence in this regard there is no need to inquire
into the first two elements. Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1022-23 (No. 86-521,
1991). Respondent’s asserted defense of greater hazard is accordingly rejected.
Finally, Respondent asserts that the accident was a result of unpreventable employee
misconduct. In order to demonstrate this affirmative defense, the employer must show that (1) it has
established work rules designed to prevent the violation, (2) it has adequately communicated the rules
to its employees, (3) it has taken steps to discover violations of the rules, and (4) it has effectively
enforced the rules when violations were detected. Jensen Constr. Co., 7 BNA OSHC 1477, 1479
(No. 76-1538, 1979). In support of its asserted defense, Respondent points to evidence in the record
that it trained its employees to hold onto the wire panel at the end furthest from the rollers and to
release the panel as soon as the rollers grabbed it. (Tr. 36, 42, 48, 85-88, 99, 379). Respondent also

   7
    The 16-gauge wire mesh panels flattened in the machine are 1/16th-inch in height. (Tr. 57).


                                              12

references evidence that it emphasized how dangerous the machine was, and how important it was
for employees to concentrate while using the machine. (Tr. 37, 39, 90-91, 94-95, 99, 350).
Regardless, employee testimony clearly shows that most if not all of the employees kept their hands
on the wire panels to push down on the curvature as the panels went into the rollers. (Tr. 85-87, 103-
07, 324-27). Thus, even assuming arguendo that Respondent had established work rules to prevent
accidents on the machine, it is apparent that the rules were not adequately communicated and that
the company took insufficient steps to detect and enforce violations of the rules.
Respondent further maintains that Mr. Bebedelis was responsible for the accident not only
because he put his hands on the panel, but also because he was not concentrating on his work.
Respondent notes evidence in the record suggesting that Mr. Bebedelis was talking and yelling just
before the accident. (Tr. 110-11, 119-20, 123, 337, 439). However, even if true, this evidence would
not relieve Respondent of liability for the alleged violation. The record shows that it was well known
that Mr. Bebedelis was a “talker” and that both management and non-management employees were
aware of this fact. (Tr. 118, 349). However, despite management’s knowledge, Respondent did not
effectively discipline Mr. Bebedelis for his proclivity for talking and not concentrating while he was
operating the flattener. (Tr. 350). Although David Geeza, the plant manager, indicated that he and
Mr. Bebedelis’ supervisor had orally reprimanded Mr. Bebedelis before, I find that this action was
insufficient in the circumstances of this case. Id. Verbal reprimands for repeated violations of safety
rules, without more, are unlikely to deter such conduct in the future, and Respondent has failed to
show any evidence of a progressive disciplinary system to discourage employees from violating safety
rules. Mr. Bebedelis’ behavior was therefore not unpreventable employee misconduct, and I find that
Respondent has not established its asserted defense.
The record demonstrates that the violation was serious, in that there was a substantial
probability that the cited condition could have resulted in serious physical harm. It is undisputed that
the machine was dangerous and that fingers could be broken in the flattener, and Mr. Bebedelis’
accident is a clear example of the consequences of failing to properly guard the machine. This citation
item is therefore affirmed as a serious violation.
Penalty Assessment

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Pursuant to section 17(j) of the Act, 29 U.S.C. § 666(j), the Commission must give due
consideration to four factors in assessing penalties: (1) the size of the employer’s business, (2) the
gravity of the violation, (3) the employer’s good faith, and (4) the employer’s prior history of OSHA
violations. The gravity of the violation is generally the principal element in penalty assessment. See,
e.g., Trinity Indus., Inc., 15 BNA OSHC 1481 (No. 88-2691, 1992), and cases cited therein. The CO
determined the gravity of both violations to be medium, with a greater probability of an injury
occurring, and she also took into account the infrequency of the cited operation. The gravity-based
penalty was then reduced due to Respondent’s small size and lack of history of previous violations,
but no reduction for good faith was given because of the company’s failure to cooperate with OSHA
during the inspection. Upon considering these factors, I conclude that the proposed penalties are
appropriate. A penalty of $2,450.00 each for Items 1 and 2 of Citation 1 is therefore assessed.

                                           ORDER
     Based upon the foregoing decision, the disposition of the citation items, and the penalties

assessed therefore, is as follows:
Citation 1 Standard Disposition Classification Civil Penalty
Item 1 1910.138(b) Affirmed Serious $2,450.00
Item 2 1910.212(a)(1) Affirmed Serious $2,450.00
Total Penalties Assessed: $4,900.00

                                                                     /s/

                                                   G. MARVIN BOBER
                                                   ADMINISTRATIVE LAW JUDGE

Dated: 27 NOV 2000
Washington, D.C.

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