Vac-Air Alloys Corporation

Plain-English summary

Vac-Air processed and cut metal using six hydraulic shears that OSHA cited for unguarded points of operation. The judge affirmed the serious violation and proposed $360 penalty. In settlement, Vac-Air agreed to install an adjustable barrier guard on one shear and use that guarded machine for stock four inches or shorter. Longer stock could be cut on the other shears, with posted instructions governing which machine to use, hand clearance, hand tools, and guard removal. The Secretary reduced the penalty to $150, and Vac-Air withdrew its contest and review petition. The Commission approved the agreement and amended the citation to match it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: Serious citation affirmed under an abatement agreement, with the penalty reduced from $360 to $150.
• Key point: The settlement tied the guarded shear to shorter stock and used work rules and signs to control operations on the remaining machines.

Full text (OSHRC public release)

Docket No. 84-0058 84-0155

SECRETARY OF LABOR,

Complainant,

v.

VAC-AIR ALLOYS CORPORATION,

Respondent.

OSHRC DOCKET NOs. 84-0058 & 84-0155

ORDER

The Commission approves the settlement agreement
and amends the citation to conform to the settlement agreement.  The Commission also
vacates the direction for review.  Since Respondent withdraws its notice of contest
to the amended citation, that citation becomes a final order.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated:  APR 1 1985

Secretary of Labor,

Complainant,

-against-

Vac Air Alloys Corporation,

Respondent.

OSHRC Docket Nos. 84-0058 and 84-0155

Stipulation and Settlement Agreement

I

The parties have reached agreement on a full and
complete settlement of the instant matter which is presently pending before the
Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review
Commission (hereinafter "the Commission") has jurisdiction of this matter
pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (85 Stat.
1590; 29 U.S.C. 651 et seq .) (hereinafter "the Act").

(b) Respondent, Vac Air Alloys Corporation, is a
corporation with its principal place of business located at Falconer-Frewsburg Road in
Frewsburg, New York 14738.  It is engaged in the business of metal processing and
during the course of its business its employees perform various tasks in the nature of
metal processing and cutting.  During the course of its business, respondent, at all
times material to this matter, used materials and equipment which is received from places
located outside the state of New York. Respondent, as a result of the aforesaid
activities, is an employer engaged in a business affecting commerce as defined by section
3(3) and 3(5) of the Act and has employees as defined by section 3(6) of the Act and is
subject to the requirements of the Act.

(c) As a result of an inspection conducted from
December 5-9, 1983 at respondent's facility in Frewsburg, New York, a citation for one
serious violation was issued to respondent on December 12, 1983, along with a proposed
related penalty of $360.  The citation alleged a violation of the standard of 29 CFR
1910.212(a)(3)(ii) in that the point of operation on six (6) hydraulic shears was not
guarded to prevent employees from having a part of their body in the danger zone during
operating cycles.

(d) Respondent elected to contest the citation
and the Secretary filed his complaint in February 29, 1984.  On March 6, 1984,
respondent filed its answer and on July 12, 1984, a hearing was held in New York City
before Administrative Law Judge Richard DeBennedetto.

(e) On October 30, 1984, Judge DeBennedetto
issued his Decision and Order affirming the citation and assessing the recommended $360
penalty.

(f) Respondent filed a timely petition for review and on December 27, 1984, Commissioner
Buckley ordered a review of the judge's decision.  On January 29, 1985, a notice was
issued by the Commission requesting briefs from the parties.

NOW, in order to avoid further review and
litigation, the parties agree to the following:

I

Respondent hereby agrees to abate the cited
conditions as follows:

a) Respondent will designate and install an
adjustable barrier-type guard on one of the six cited shears.  (Model:
 Constellation 1 1/2 - 18, or models similar thereto).

b) The guard shall be placed just before the point of operation in such a manner that the
operator shall be prevented from having any part of his body enter the point of operation
during the operating cycle.

c) The vertical movement of this guard shall be adjustable in such a manner as to allow at
all times a minimum clearance of one quarter (1/4) inch between the anvil of the shear and
the bottom of the guard.

d) The guard shall simultaneously serve as a restraining device for the pieces to be cut
and at no time during the operating cycle shall the distance between the bottom of the
guard and the top of the piece to be cut exceed one quarter (1/4) inch.

e) The guard shall remain immovable at all time during the operating cycle.

f) At all times during the operating cycle the operator's hands must stay clear of the
guard by a distance of more than one (1) inch. Whenever the distance between the
operator's hands and the guard is less than that distance, hand tools must be used.

g) The guarded shear will be used for all operations involving cutting stock of four
inches or less.

h) operations involving cutting of stock more than four inches in length shall be
performed on the five remaining shears which may remain unguarded.

i) A plaque, prominently displayed near the shears, shall indicate that when a machine is
unguarded it is to be used only for cutting stock more than four inches in length.

j) A similar plaque near the guarded shear shall instruct employees that only a guarded
shear is to be used for cutting of stock four inches or less in length.  The plaque
will al so caution employees never to remove the barrier guard except for routine
maintenance and repairs of the guard or shear, or unless specifically directed by
supervisory personnel to remove the guard in order to permit the use of the machine in any
other manner consistent with this agreement.

II

Complainant hereby agrees to reduce the penalty
proposed for the citation for serious violation from $360 to $150.

III

Respondent hereby agrees to withdraw its notice of contest to the citation as well as its
Petition for Discretionary Review and submits that the violation of the Act as set forth
in the above-mentioned citation will be immediately abated according to the terms of this
agreement within thirty days of the execution hereof and shall remain abated.

IV

Respondent agrees to pay the penalty of $150
within ten (10) days after issuance of the Commission's order approving this Stipulation
and Settlement Agreement, by mailing a check to the complainant as full and complete
payment of the penalty.

V

The parties agree that this Stipulation and
Settlement Agreement applies only to the instant cited conditions and in no way is to be
considered precedential or binding in other situations involving similar conditions or
machinery of this or any other employer.

VI

The parties agree to bear their own attorney's
fees, expenses and costs incurred as the result of the instant litigation.

VII

Respondent agrees to post this Stipulation and
Settlement Agreement in accordance with Commission Rule 7.

Wherefore, the parties request that this
Stipulation and Settlement Agreement be approved by the Commission.

For the Complainant

Counsel for the Secretary

For the Respondent