Choice Fabricators, Inc.

Plain-English summary

Choice Fabricators manufactured metal parts with mechanical power presses at its Alabama plant. OSHA cited the company for excluding die changes from its lockout/tagout program, improperly using safety blocks, failing to inspect its energy-control procedures, failing to train die-setters, and unsafe use of press controls. The judge held that die changing was servicing covered by the lockout/tagout standard because production stopped and employees entered the point-of-operation area while hazardous energy was not locked out. The judge also affirmed settled machine-guarding and recordkeeping items, but vacated the item alleging that a job-made key bypassed a presence-sensing device because the Secretary did not prove the key activated that device or that its mode selection was not supervised. The affirmed and settled items resulted in total penalties of $14,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.147(d)(3); 29 C.F.R. § 1910.147(c)(6)(i); 29 C.F.R. § 1910.147(c)(7)(i)(A); 29 C.F.R. § 1910.217(c)(2)(i)(d); 29 C.F.R. § 1910.217(c)(3)(vii)(a); 29 C.F.R. § 1910.217(c)(3)(vii)(d); 29 C.F.R. § 1910.217(h)(6)(iii); 29 C.F.R. § 1904.29(b)(1); 29 C.F.R. § 1904.32(b)(4)
• Outcome: Nine items or subitems were affirmed, including three by settlement, one power-press item was vacated, and total penalties of $14,000 were assessed.
• Key point: Mechanical-press die changing is servicing covered by lockout/tagout when production stops and employees enter a danger zone without hazardous energy being isolated.

Full text (OSHRC public release)

                                       United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1924 Building - Room 2R90, 100 Alabama Street, SW
                                     Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 08-0944
Choice Fabricators, Inc.,
Respondent.

Appearances:
Joseph Lucke tt, Esquire, Nashville, Tennessee
For Complainant

   Mark Beverwyk, Director of Operations, Suw anee , Geo rgia
   For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                   DECISION AND ORDER

   Choice Fabricators Inc. (CFI) manufactures metal parts for various customers at a plant in

Rainbow City, Alabama. On February 21, 2008, Occupational Safety and Health Administration
(OSHA) compliance officer James Cooley inspected CFI’s plant because its employees’
accident/injury rate was high for the industry. After the inspection, CFI received citations on June
6, 2008 for violations of the OSHA standards involving lockout/tagout (LOTO) and mechanical
power presses. CFI timely contested the citations.
The serious citation alleges CFI violated 29 C.F.R § 1910.147(c)(4)(i) (item 1a) for failing
to develop and utilize LOTO procedures for employees changing dies on mechanical presses in the
manual department; 29 C.F.R § 1910.147(d)(3) (item 1b) for failing to protect employees changing
dies on the presses by the proper use of safety blocks; 29 C.F.R § 1910.147(c)(6)(i) (item 2) for
failing to conduct periodic inspections of its LOTO procedures; 29 C.F.R § 1910.147(c)(7)(i)(A)
(item 3) for failing to train employees changing dies on LOTO procedures; 29 C.F.R §
1910.217(c)(2)(i)(d) (item 4) for failing to secure guards on the back side of the presses; 29 C.F.R
§ 1910.217(c)(3)(vii)(a) (item 5) for permitting two employees to use a single two-hand control to
operate a press; 29 C.F.R § 1910.217(c)(3)(vii)(d) (item 6) for failing to fix in position two-hand
controls used to operate the presses; and 29 C.F.R § 1910.217(h)(6)(iii) (item 7) for permitting an
employee to use a job-made key to bypass the presence sensing device initiation (PSDI). The
serious citation proposes a penalty of $3,500.00 for each alleged violation for a total penalty of
$24,500.00.
The other-than-serious citation alleges CFI violated 29 C.F.R § 1904.29(b)(1) (item 1) for
failing to include a detailed description of injuries and /or illnesses on the OSHA 300 Logs for the
years 2005, 2006 and 2007; and 29 C.F.R § 1904.32(b)(4) (item 2) for failing to certify the OSHA
300 Logs by the highest company executive. The other-than-serious citation proposes a penalty of
$2,100.00 for item 1 and no penalty for item 2.
The hearing was held in Gadsden, Alabama on December 9 and 10, 2008. The parties
stipulated to jurisdiction and coverage (Tr. 4). For settlement purposes, the parties agreed to the
withdrawal of CFI’s contest to serious citation, item 4, with a reduction in penalty to $3,000.00;
other-than-serious citation, item 1, with a reduction in penalty to $1,000.00; and other-than-serious
citation, item 2, with no penalty (Tr. 5). The terms of the partial settlement are approved and
incorporated into this Decision and Order. The parties filed post-hearing briefs.
CFI denies the alleged violations and contends the LOTO standards do not apply to die
changing procedures. If LOTO is applicable, CFI claims its die-setters are not exposed to a hazard.
With regard to the alleged violations of the mechanical power press standards, CFI claims its press
operators are not exposed to a hazard.
For the reasons discussed, CFI’s arguments are rejected and the violations are affirmed as
serious and a total penalty of $14,000.00 is assessed except for the alleged violation of
§1910.217(h)(6)(iii) (item 7) which is vacated.
The Inspection
CFI fabricates metal parts for various customers at a plant in Rainbow City, Alabama. At
the time of the OSHA inspection, CFI employed approximately 250 employees and operated two
shifts (Tr. 114, 282).
The plant’s manual department has 23 mechanical power presses used to fabricate metal
parts. The mechanical presses, manufactured by Minsters, Niagra, Danly, and Clearing & Verson,
are part revolution presses which allow the operator to disengage the clutch at any point before the

                                              -2­

crank shaft has completed a full revolution and the press slide a full stroke (Tr. 20-21, 164, 224).
See § 1910.211(d)(6).
On February 21, 2008, OSHA compliance officer Cooley inspected CFI’s plant because,
according to OSHA records, the employees’ accident/injury rate was high for the industry. Cooley’s
inspection focused on the mechanical power presses in CFI’s manual department. CFI provided
Cooley with copies of its LOTO program and its die changing program (Exhs. C-1, C-4; Tr. 14, 16).

    During his walk around inspection, Cooley observed four employees changing dies on the

power presses without utilizing LOTO procedures. According to CFI, employees changing dies
follow specific procedures for die changing and are exempt from its LOTO program. Cooley
videotaped CFI’s die changing operation (Exh. C-15: Tr. 51).
While the presses were in normal operation, Cooley observed the press operators freely
moving the two-hand controls around in front of the presses. He also saw two operators using a
single two-hand control to operate the Danly #39 press. In another incident, Cooley saw an operator
after interrupting the light curtain, insert a job-made key into a slot on the press which he understood
bypassed the PSDI switch. Maintenance manager Terry Tatum testified the key was for the selector
switch which allows the ram to reposition itself for a single run (Exh. C-11, C-12, C-14; Tr. 70, 80,
88).
Based upon Cooley’s inspection, CFI received the citation alleging the violations at issue.
Discussion
The Secretary has the burden of proving a violation.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the
applicability of the cited standard, (b) the employer’s noncompliance
with the standard’s terms, (c) employee access to the violative
conditions, and (d) the employer’s actual or constructive knowledge
of the violation (i.e., the employer either knew or, with the exercise
of reasonable diligence could have known, of the violative
conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

    There is no dispute that the presses in CFI’s manual department are mechanical power

presses within §1910.217 and that OSHA’s LOTO standards at §1910.147 apply when performing
“servicing and maintenance” on the presses. Also, CFI does not dispute its knowledge of the cited

                                              -3­

conditions or that it did not comply with the terms of the cited LOTO and mechanical power press
standards.1
The issues in dispute are whether die changing is “servicing and maintenance” within the
application of LOTO and whether the employees were exposed to hazards during die changing or
the normal operation of mechanical power presses.
Application of LOTO to
DIE CHANGING

     Section 1910.147 requires locking and tagging out of machinery and equipment to control

hazardous energy sources during “servicing and maintenance” where the employees could be
exposed to injury by the unexpected energization, startup, or the release of stored energy. To control
the energy sources, the employer must develop an energy control program to ensure the machine and
equipment are isolated from the energy source and rendered inoperative before servicing and
maintenance is performed. The application of the LOTO standards is addressed in § 1910.147(a)(2)
which provides:
(i) This standard applies to the control of energy during servicing
and/or maintenance of machines and equipment.
(ii) Normal production operations are not covered by this standard
(See subpart O of this part). Servicing and/or maintenance which
takes place during normal production operations is covered by this
standard only if:
(A) An employee is required to remove or bypass a
guard or other safety device; or
(B) An employee is required to place any part of his
or her body into an area on a machine or piece of
equipment where work is actually performed upon the
material being processed (point of operation) or
where an associated danger zone exists during a
machine operating cycle.
NOTE: Exception to paragraph (a)(2)(ii):
Minor tool changes and adjustments, and other minor servicing
activities, which take place during normal production operations, are
not covered by this standard if they are routine, repetitive, and
integral to the use of the equipment for production, provided that the
work is performed using alternative measures which provide effective
protection (See subpart O of this part).

1
Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BN A O SHC 1127, 11 30 (No . 89-2713 , 1991).

                                                   -4­

CFI’s written LOTO program applies to the presses in the manual department and is required
to be followed when performing “servicing and maintenance” work on the presses. The program
identifies the presses as having the potential for unexpected energizing, start-up or release of stored
energy and having more than one energy source. It describes the sources of energy as electrical,
hydraulic and pneumatic. The procedure establishes eight steps in applying LOTO to the presses.
The Secretary does not dispute that CFI’s written LOTO program complies with § 1910.147.
The minor tool change exception to developing LOTO procedures at §1910.147(c)(4)(i) does not
apply and has not been asserted by CFI.2
The dispute arises because CFI does not consider changing dies on the presses as “servicing
and maintenance” work and does not require its die-setters to apply LOTO procedures (Tr. 140).
The die-setters are specifically exempted from its LOTO procedures (Exh. C-1, p. 2). CFI considers
changing dies as part of normal production work. Cooley observed four employees changing dies
during his inspection. CFI identified 37 die-setters (Tr. 31).
CFI’s die-setters are required to follow other written procedures entitled Manual Department
Die Set-Up Instruction and Check Sheet when changing the dies (Exh. C-4). CFI’s die changing
procedures do not comply with §1910.147 because the sources of potential energy are not locked
out.
CFI’s argument that the LOTO requirements do not apply to die changing procedures is
rejected. The Secretary defines “servicing and/or maintenance” as:
Workplace activities such as constructing, installing, setting up,
adjusting, inspecting, modifying, and maintaining and/or servicing
machines or equipment. These activities include lubrication, cleaning
or unjamming of machines or equipment and making adjustments or
tool changes, where the employee may be exposed to the unexpected
energization or startup of the equipment or release of hazardous
energy. See, § 1910.147(b).

     The Secretary defines “setting up” as:
              Any work performed to prepare a machine or equipment to perform
              its normal production operation. See, §1910.147(b).

2
Exception s are to b e narro wly construed and the party seekin g the benefit of an exception has the burden to show its
com pliance. Kasper Wire Works, Inc.,18 B NA OSHC 2178, 219 4 (No. 90-2 775, 2000 ), aff’d, 268 F.3d 1123 (D.C.
Cir. 2001).

                                                      -5­

“Normal production operation” is defined as:
The utilization of a machine or equipment to perform its intended
production function. See, §1910.147(b).

      The Secretary’s definitions and the LOTO standards make it clear that “servicing and

maintenance” includes die changing within the setting up activities on the presses.3 The Secretary’s
intent to apply LOTO to die changing is reflected in her Standard Interpretations. The December
28, 2006, Standard Interpretation clearly states “Die-setting activities constitute servicing activities
and are covered by the LOTO standard, i.e., pursuant to the definitions of “Setting up” and
“Servicing and/or maintenance” contained in §1910.147(b)” (Exh. C-3). Also, an April 22, 2005,
Standard Interpretation states “Setting up activities, by definition, involve work that prepares a press
to perform its intended normal production operation; therefore, this exception [minor tool changes]
generally would not apply to hydraulic and mechanical power press die-setting because the servicing
activity is not taking place during NPOs [normal production operation]” (Exh. C-2, fn. 1). Also, see
Westvaco Corp., 16 BNA OSHC 1374 (No. 90-1341, 1993) (Helper had to adjust the machine prior
to running each order; the adjustments constituted “setting up” activities that did not take place
“during normal production operations.”).
In this case, the record does not support a claim that changing dies is part of “normal
production.” Supervisor of the press shop, Dale Rigsby, testified the presses run to produce a part.
When CFI finishes producing the part, the presses stop and the die is changed and a new part
produced. The dies may not be changed for a couple of days or they may be changed as often as six
times in an eight-hour shift. It takes approximately 30 minutes to change a die (Tr. 281, 283). This
is not normal production, as all production stops while the die is changed. Die changing is servicing
of the presses.
CFI has 21 different presses and no evidence was presented as to how its method of changing
dies protects employees from the potential of unexpected energizing, start-up or release of stored
energy. The sources are not locked out. Also, CFI offered no explanation as why it uses LOTO on

3
The wo rding of a standard must be interpreted in a reasonable manner consistent with a common sense
understanding. Globe Industries, Inc., 10 BNA O SHC 1596, 1598 (No. 77-4313, 1982). The words are to be
view ed in contex t, not in isolation, an d judg ed in ligh t of its application to the facts of the case. Ormet Corp., 14
BN A O SHC 2134, 21 35 (No . 85-531, 19 91).

                                                         -6­

the presses when engaged in “servicing or maintenance” and not its alternative die changing
procedures which it alleges are as safe.
The Secretary notes, in Standard Interpretation dated April 22, 2005, that
in some cases, the implementation of effective machine guarding
techniques may eliminate worker exposure to hazardous energy,
providing a feasible and acceptable alternative to LOTO. However,
when machine guarding methods do not eliminate exposure to
hazardous energy, LOTO is required to prevent die-setter employees
from being seriously injured when performing die-set servicing
activities (Exh. C-2, p.2).

   Effective machine guarding techniques were not shown in this case. To change the dies, the

employees bypassed the light curtains and worked at the press’ point of operation. Also, the LOTO
standard is intended to work in conjunction with the machine guarding standards to provide
optimum employee protection.
The LOTO standards apply to CFI’s die changing activities.
CITATION No. 1
Item 1a - Alleged Violation of § 1910.147(c)(4)(i)
The citation alleges LOTO procedures were not developed and utilized for employees
changing dies. Section 1910.147(c)(4)(i) provides:
Procedures shall be developed, documented and utilized for the
control of potentially hazardous energy when employees are engaged
in the activities covered by this section.

   CFI’s LOTO program identifies the energy sources on the presses as electrical, pneumatic,

and mechanical. The written LOTO procedures for the presses require the employee to:
1. Notify affected employees that a lockout/tagout is going to be
implemented.
2. If working on clutch/brake bring ram to the bottom of the stroke.
3. If the machine is operating shut it down through the normal
stopping procedure.
4. Pull electrical disconnect and lock it out.
5. Test for electrical current.
6. Shut off air supply and lock it out.
7. Stored energy (flywheel, air) must be dissipated by waiting for the
flywheel to stop and bleeding down stored air.
8. Block up ram. (Exh. C-1).

                                            -7­

However, CFI’s LOTO program provides that “the only exception to this rule is employees
involved in the Die Set-up Procedure. They are trained on that procedure” (Exh. C-1, p.2). In
contrast to the LOTO procedures, CFI’s die removal and set-up procedures provide:
Die Removal Instructions:
1. Shut the power off before performing any action to the press.
2. Make sure the Press and the work area is clean.
3. If any Material is left from the previous run, make sure it is moved
and placed in the proper storage location.
4. Close Die, E-Stop!!
5. Undo all bolts “Top & Bottom” # of bolts may vary!
6. Remove & Secure undone bolts and tools.
7. E-Stop! “Raise Press” E-Stop! “Add slide prevention bolt, if
necessary” (If space is between die and press no prevention bolt
needed!).
8. Notify Forklift driver “Remove die.”

           Die Setting Instructions:
           1. Clean! Press & Work area “Remove slide prevention bolt!
           2. Die returns “Make sure Forklift driver aligns properly.”
           3. E-Stop! “Lower press onto die until you can see no light” E-Stop!
           4. Tighten all bolts! (Top & Bottom) #of bolts may vary!
           5. Check all bolts!!
           6. Set press! Inch down and set by crash block!
           7. Remove & Secure unused bolts and tools!
           8. E-Stop! Run 1st piece, get it checked for quality! (Take 1st piece,
           blank, and sample to      (Exh. C-4).

   Such die changing procedures are required by §1910.217(d)(9). However, CFI’s written die

changing procedures do not comply with the requirements of a written LOTO program required by
§1910.147(c)(4)(i). The procedures fail to prevent the unexpected energization, start up, or the
release of stored energy on the presses. Also, the die changing procedures require the employee to
remove or bypass a guard or other safety device, i.e., a light curtain, and to place a part of his body
(hands) into or near the point of operation, or where an associated danger zone exists during a press’
operating cycle. See, § 1910.147(a)(2)(ii). The die-setters work inside the light curtain and at the
point of operation of the press while changing the dies (Tr. 263). Pursuant to §1910.217(h)(1)(iv),
“The PSDI mode of operation shall be used only for normal production operations. Die-setting and
maintenance procedures . . . shall not be done in the PSDI mode.” The need for utilizing LOTO

                                             -8­

is increased in this case because as many as two employees could be involved in changing the dies
on a press (Tr. 280).
CFI’s argument that there is no danger because when changing dies, metal is resting on metal
is rejected. When changing the dies, the ram starts in the upper position and the employee is in the
zone of danger. Also, the use of safety blocks to prevent the upper ram from coming down on the
employee is rejected because the blocks were laying down horizontally and would not block a falling
ram (Exhs. C-5, C-6; Tr. 35-36).
CFI’s reliance upon ANSI/ASSE Z244.1-2003, Control of Hazardous Energy
Lockout/Tagout and Alternative Methods, is misplaced (Exh. R-1; Tr. 138). The ANSI standard has
not been adopted as, or incorporated by reference into, the OSHA’s LOTO standards at §1910.147.
CFI’s compliance with ANSI standard is not compliance with the OSHA standard. See, OSHA
Standard Interpretation, November 10, 2004 (Exh. C-16).
A serious violation of § 1910.147(c)(4)(i) is established.4 CFI knew its LOTO procedures
exempted die changing activities and the die-setters could receive serious injury from the
unexpected energization of the press while changing dies at the point of the operation.
Item 1b - Alleged Violation of § 1910.147(d)(3)
The citation alleges employees while changing dies on presses were not protected by the
proper use of safety blocks. Section 1910.147(d)(3) provides:
All energy isolating devices that are needed to control the energy to
the machine or equipment shall be physically located and operated in
such a manner as to isolate the machine or equipment from the
energy sources(s).

     A safety block is “a prop that when inserted between the upper and lower dies or between

the bolster plate and the face of the slide, prevents the slide from falling of its own deadweight.”
§ 1910.211(d)(48). A safety block is an “energy isolating device” which is defined in part at
§1910.147(b) as

4
A violation is serious under § 17(k) of the Occupation Safety and Health Act (Act) (29 U.S.C. § 666(k)), if it creates
a substantial probability of death or serious physical harm and the employer knew or should have known of the
violative con dition. The issu e is not whether an accident is likely to occur; it is rather whethe r the resu lt wou ld
likely be death or serious harm if an accident sh ould o ccur. Whiting-Turner Contracting Co., 13 BNA OSH C 2155,
2157 (N o. 87-123 8, 1989).

                                                      -9­

a mechanical device that physically prevents the transmission or
release of energy, including but not limited to the following: ..... a
block; and any similar device used to block or isolate energy.”

     During his inspection, Cooley observed the safety or die blocks not being utilized properly

by employees while changing dies. The blocks were laid in a horizontal position, affording no
safety to employees. Also, several blocks were shorter than the dies. According to Cooley,
maintenance manager Tatum said there were not enough blocks of the proper size for all the dies
(Tr. 56-57). This evidence was not disputed by CFI.
A serious violation of § 1910.147(d)(3) is established. CFI knew of the improper use of
safety blocks and employees could have been seriously injured by amputation or caught by hazard.
Item 2 - Alleged Violation of § 1910.147(c)(6)(i)
The citation alleges CFI did not inspect its LOTO procedures. Section 1910.147(c)(6)(i)
provides:
The employer shall conduct a periodic inspection of the energy
control procedure at least annually to ensure that the procedure and
the requirements of this standard are being followed.

     At least annually, an authorized employee, other than the employees utilizing the energy

control procedures, must inspect and verify the effectiveness of its LOTO procedures. The
inspections are intended to ensure the energy control procedures are properly being implemented
and to provide a check on their continued utilization. Written documentation which is certified and
containing the designated information must be maintained. Louisiana-Pacific Co., 17 BNA OSHC
1395, 1399 (No. 93-0872, 1995).
CFI’s written LOTO program provides for annual inspections (Exh. C-1, p.4: Tr. 63-64).
However, when Cooley requested copies of the inspections, no written documentation was provided.
Tatum claimed he reviewed the LOTO procedures, but he did not perform any audits or inspections
(Tr. 59, 214-215). He did not use authorized employees or affected employees in the review (Tr.
65).5

5
“Affected employee” is “an employee whose job requires him/her to operate or use a machine or equipment on
which servicing and maintenance is being performed under lock out or tagout or w hose job req uires him/her to w ork
in an area in which such servicing or maintenance is being performed.”
“Authorized employee” is “a person w ho locks o ut or tags out ma chines or eq uipmen t in order to perform
servicing or m aintenance on that mac hine or equ ipment.” §1 910.147(b).

                                                    -10­

At the hearing, CFI introduced the monthly press inspection reports which it claims is also
its LOTO inspection reports (Exh. R-7). A review of CFI’s press inspection report shows that it fails
to comply with the LOTO standard. The form, which was not filled out, does not contain the
required information including the certification, the identity of the press on which the energy control
procedure was being utilized, the date of the inspection, the employees included in the inspection,
and the person performing the inspection.
A serious violation of § 1910.147(c)(6)(i) is established. CFI knew of the lack of periodic
inspections and employees were exposed to possible serious injury.
Item 3 - Alleged Violation of § 1910.147(c)(7)(i)(A)
The citation alleges employees changing dies had not received training on LOTO procedures.
Section 1910.147(c)(7)(i)(A) provides:
Each authorized employee shall receive training in the recognition of
applicable hazardous energy sources, the type and magnitude of the
energy available in the workplace, and the methods and means
necessary for energy isolation and control.

   There is no dispute that CFI’s die-setters were not trained in LOTO procedures. CFI did not

require the use of LOTO when changing dies. CFI’s argument that die-setters are not “authorized
employees” is rejected. “An affected employee becomes an authorized employee when that
employee’s duties include performing servicing and maintenance” covered by the LOTO standards.
See §1910.147(b). When changing dies, the die-setters are considered authorized employees. As
identified by CFI, 37 employees were involved in changing dies (Tr. 67). These employees had not
received LOTO training.
A serious violation of § 1910.147(c)(7)(i)(A) is established. CFI knew the die-setters were
not trained in its LOTO procedures and that they were exposed to possible serious injury. The dies
are changed frequently.
Item 5 - Alleged Violation of § 1910.217(c)(3)(vii)(a)
The citation alleges two employees in the press area operating the Danly #39 press were
using a single two-hand control to operate the press. Section 1910.217(c)(3)(vii)(a) provides:
When used in press operations requiring more than one operator,
separate two hand controls shall be provided for each operator, and
shall be designed to require concurrent application of all operators;

                                             -11­

controls to activate the slide. The removal of a hand from any control
button shall cause the slide to stop.

     During his inspection, Cooley observed two employees using a single two-hand control to

operate a press (Exh. C-11). While the employees operated the press with a single control, he saw
their free hands move the metal parts in and out of the die. Cooley described it as “hand-in-die
operation” (Tr. 73).
The standard requires separate two-hand controls to be used by each employee so that during
press operation, both buttons on each control are pushed concurrently to activate the ram and
preventing an employee’s hand from being exposed to the point of operation. Safety consultant
Beverwyk said the employees had been working at the station with a single control for one week.
Maintenance manager Tatum said he walks around the department throughout the day (Tr. 76).
The presses have PSDIs or light curtains6 which should stop the slide when tripped.
However, the use of a PSDI or light curtain does not relieve CFI of the prohibition against separate
two-hand controls. The standard requires that presses operated in the PSDI mode “shall be equipped
with a brake monitor that meets the requirements” of the section. §1910.217(h)(5)(i). Tatum
testified that not all the presses at the facility have a brake monitoring system. He could not recall
how many presses had such a system (Tr. 265). Also, Cooley testified the employees could place
their hands beneath the PSDI, as there was a portion that was not covered by the device (Tr. 75).

     Also, CFI’s compliance with the PSDI standard does not mean an employer does not need

to comply with the two-hand control standard. The conditions (a two-hand control and a PSDI) are
not duplicative requirements where the standards are “directed at fundamentally different conduct.”
J.A. Jones Construction Co., 15 BNA OSHC 2201, 2207 (No. 87-2059, 1993). The standards cited
in this case address different conduct, and the abatement of one does not abate the other. In addition,
CFI must comply with “all standards applicable to a hazardous condition even though the abatement
requirements of two applicable standards may be satisfied by compliance with the more

6
A “presence sensing device initiation” (PSDI) is defined at § 1910.211(d)(61) as:
an operating mode of indirect manual initiation of a single stroke by a presence
sensing de vice w hen it senses that w ork m otions of the operato r, related to
feeding and/or removing parts, are completed and all parts of the operator’s body
or hand tools are safely clear of the point of operation.

                                                   -12­

comprehensive standard.” H.H. Hall Construction, Co., 10 BNA OSHC 1042, 1046 (No. 76-4765,
1981). The fact CFI’s presses have light curtains to protect the point of operation does not relieve
CFI of complying with the proper utilization of two-hand controls.
A serious violation of § 1910.217(c)(3)(vii)(a) is established. If an employee reached into
the die, he would suffer amputation or injury (Tr. 76). CFI had knowledge of the operation of the
single two-hand control by two employees.
Item 6 - Alleged Violation of § 1910.217(c)(3)(vii)(d)
The citation alleges the press operators were able to freely move the two-hand controls when
operating the presses. Section 1910.217(c)(3)(vii)(d) provides:
Two hand controls shall be fixed in position so that only a supervisor
or safety engineer is capable of relocating the controls. All energy
isolating devices that are needed to control the energy to the machine
or equipment shall be physically located and operated in such a
manner as to isolate the machine or equipment from the energy
sources(s).

   The operators were observed freely moving the pedestal mounted two-hand controls while

operating the presses. The operators placed the controls very close to the point of operation and
were seen removing the metal parts without having to stretch out from the controls. When asked
why the controls were movable, Tatum stated that it was for the ease of use so that employees do
not damage the controls. CFI does not dispute that the controls were freely movable (Tr. 80, 84).
To keep operators a safe distance from the point of operation, §1910.217 provides for a
minium safe distance (Tr. 81, 82). By having stationary two-hand controls, the safe distance of the
operator from the point of operation is maintained. As noted by the Commission, “moving the
controls to close to the press’ point of operation would clearly expose the machine’s operator to the
hazard posed by the point of operation.” Mayflower Vehicle Systems, Inc., 19 BNA OSHC 1538,
1539 (No. 99-1319, 2001),
A serious violation of § 1910.217(c)(3)(vii)(d) is established. CFI knew the two-hand
controls for the presses were not stationary and that employees were subject to serious injury from
exposure to the presses’ points of operation.
Item 7 - Alleged Violation of § 1910.217(h)(6)(iii)
The citation alleges an employee used a job-made key to bypass the presence sensing device
initiation (PSDI). Section 1910.217(h)(6)(iii) provides:

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The mode selection means of paragraph (b)(7)(iii) of this section
shall have at least one position for selection of the PSDI mode.
Where more than one interruption of the light sensing field is used in
the initiation of a stroke, either the mode selection means must have
one position for each function, or a separate selection means shall be
provided which becomes operable when the PSDI mode is selected.
Selection of PSDI mode and the number of interruptions/ withdrawals
of the light sensing field required to initiate a press cycle shall be by
means capable of supervision by the employer.

   During the OSHA inspection, Cooley testified he saw an employee trigger the light curtain

and then use a job-made key to bypass the PSDI switch (Exh. C-14). The employee had interrupted
the light curtain while cleaning waste materials from the press using a flat piece of metal. Cooley
testified he then saw the employee reset the light curtain with a job-made key and continue his work.
A supervisor was not needed to reset the light curtain (Tr. 87-89, 217-218). According to Cooley,
maintenance manager Tatum told him that key operated the switch to the PSDI and had been used
for at least one week (Tr. 90, 204). According to Cooley, without having a supervisor to reset the
light curtain, CFI could not monitor the ram’s proper braking capability and the system could be
overridden (Tr. 171).
Tatum contradicted Cooley’s testimony and testified that the light curtains was not operated
by a key (Tr. 259). He stated that after the light curtain was tripped, it remained on and that the
controls needed to be reset by the employee to allow the press to operate. When the press’ cycle is
interrupted because the light curtain is tripped, the press has to be turned to the “inch mode” and
inched back to the top to start the cycle over. According to Tatum, the resetting operation does not
require a supervisor (Tr. 268-269). Tatum’s testimony is given weight based upon his familiarity
with CFI’s presses as maintenance manager.
The violation of § 1910.217(h)(6)(iii) is not established. The job-made key was not for the
purpose of activating the PSDI. Also, the Secretary failed to show that the selection of PSDI mode
and the number of interruptions/withdrawals was not “capable of supervision” by CFI. Although
no supervisor was involved in the employee’s use of the key, the Secretary failed to show that CFI
was not aware of the selection of the PSDI mode. The employee was Hispanic and could not speak
or understand English (Tr. 90). The employee had been operating with the key for a week (Tr. 90).
Penalty Consideration

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In determining an appropriate penalty, consideration of the size of the employer’s business,
history of the employer’s previous violations, the employer’s good faith, and the gravity of the
violation is required. Gravity is the principal factor.
CFI has approximately 250 employees and is not entitled to credit for size. CFI is entitled
to credit for history and good faith. CFI has not received a serious citation within three years (Tr.
114). CFI has safety program including a written LOTO program and die changing program. Also,
there is no evidence of prior injuries or accidents to employees.
A penalty of $2,000.00 is reasonable for grouped violations of § 1910.147(c)(4)(i) and §
1910.147(d)(3) (items 1a and 1b). CFI’s LOTO program failed to apply to its die changing
procedures. CFI identified 37 die-setters.
A penalty of $2,000.00 is reasonable for violation of § 1910.147(c)(6)(i) (item 2). Although
CFI has a die changing procedure, such procedure does not comply with LOTO. CFI’s monthly
press inspections fail to comply with the standard’s periodic inspections requirements.
A penalty of $2,000.00 is reasonable for violation of § 1910.147(c)(7)(i)(A) (item 3). CFI
identified 37 die-setters who had not received training on LOTO procedures.
A penalty of $2,000.00 is reasonable for violation of § 1910.217(c)(3)(vii)(a) (item 5). Two
employees were using a single two-hand control to operate the press. Each employee’s free hand
was observed moving material in and out of the press’ point of operation.
A penalty of $2,000.00 is reasonable for violation of § 1910.217(c)(3)(vii)(d) (item 6). The
two-hand controls for the presses were not stationary. The employees were observed moving the
controls close to the point of operation.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED:
Citation 1
1. Serious violations of § 1910.147(c)(4)(i) (item 1a) and 1910.147(d)(3) (item 1b), are
affirmed and grouped penalty of $2,000.00 is assessed.

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2. Serious violation of § 1910.147(c)(6)(i) (item 2), is affirmed and penalty of $2,000.00 is
assessed.
3. Serious violation of § 1910.147(c)(7)(i)(A) (item 3), is affirmed and a penalty of $2,000.00
is assessed.
4. Serious violation of § 1910.217(c)(2)(i)(d) (item 4), is affirmed pursuant to the parties’
settlement and a penalty of $3,000.00 is assessed.
5. Serious violation of § 1910.217(c)(3)(vii)(a) (item 5), is affirmed and penalty of $2,000.00
is assessed.
6. Serious violation of § 1910.217(c)(3)(vii)(d) (item 6), is affirmed and a penalty of
$2,000.00 is assessed.
7. Serious violation of § 1910.217(h)(6)(iii) (item 7), is vacated and no penalty is assessed.
Citation 2
1. Other than serious violation of § 1904.29(b)(1) (item 1), is affirmed pursuant to the
parties’ settlement and a penalty of $1,000 is assessed.
2. Other than serious violation of § 1904.32(b)(4) (item 2), is affirmed pursuant to the
parties’ settlement and no penalty is assessed.

                                                     /s/
                                                     KEN S. WELSCH
                                                     Judge

Date: May 15, 2009

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