National Metalwares, Inc.

Plain-English summary

National Metalwares faced a failure-to-abate allegation involving mechanical power press dies and a repeat machine-guarding item involving a tube bender. The settlement withdrew the failure-to-abate allegation for one die and reduced that penalty to $11,500. The parties approved die-specific safeguarding systems, including restraints, two-hand controls, and defined barrier arrangements for tubular parts. National also withdrew its contest to the tube-bender item after redesigning the guard, with a $500 penalty. The Commission approved the agreement, under which National paid $12,000 in total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.217(c)(2)(i)(a); 29 C.F.R. § 1910.217(b)(4)(iii); 29 C.F.R. § 1910.217(b)(7)(v)(b); 29 C.F.R. § 1910.212(a)(1)
• Outcome: Settled. The failure-to-abate and repeat guarding matters were resolved for $12,000.
• Key point: Point-of-operation guarding may be resolved through die-specific systems when the settlement defines how each method prevents employee access to the hazard.

Full text (OSHRC public release)

Docket No. 89-0422

SECRETARY OF LABOR,

Complainant,

v.

NATIONAL METALWARES, INC.,

Respondent.

OSHRC Docket No. 89-0422

ORDER

This matter is before the Commission on a Direction for Review
entered by Commissioner Velma Montoya on June 18, 1990. The parties have now filed a
Settlement Agreement.

Having reviewed the record, and based upon the representations
appearing in the Settlement Agreement, we conclude that this case raises no matters
warranting further review by the Commission. The terms of the Settlement Agreement do not
appear to be contrary to the Occupational Safety and Health Act and are in compliance with
the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the settlement Agreement into this order. This is
the final order of the Commission in this case. See 29 U.S.C. � 659(c), 660(a) and
(b).

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated:    July 22, 1991

July 5, 1991

Ray H. Darling, Jr.

Executive Secretary

Occupational Safety and Health

Review Commission

Re: Secretary of Labor v. National Metalwares, Inc.

OSHRC No. 89-0422

Dear Mr. Darling:

Enclosed for filing are five copies of a settlement agreement
which resolves all issues in the case now pending before the commission.

Mr. Chadd and I would like to express our very sincere
appreciation to the Commission for allowing us the time necessary to complete this
agreement to the advantage of both parties.

Sincerely,

Daniel J. Mick

Counsel for Regional

Trial Litigation

Enclosures

cc; Charles M. Chadd, Esq.

LYNN MARTIN, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

NATIONAL METALWARES, INCORPORATED,

Respondent.

OSHRC Docket

No. 89-0422

SETTLEMENT AGREEMENT

Complainant, LYNN MARTIN, Secretary of Labor, United States
Department of Labor, and Respondent, NATIONAL METALWARES, INC., pursuant to Rule 100 of
the Occupational Safety and Health Review Commission, 29 CFR � 2200.100, hereby agree to
resolve all pending issues in the above matter as follows:

With respect to the notification of failure to abate
(Paragraphs 1-5 of this Agreement)

1. The Complainant hereby amends the notification of failure to
   abate alleged violations issued against Respondent on January 12, 1989 as follows:

(a) Complainant withdraws the allegation of subpart (b) that
Respondent failed to abate Die No. 355.

(b) Complainant reduces the penalty proposed to Eleven Thousand
Five Hundred Dollars ($11,500).

2. The Respondent has no objection to the amendment of the
   notification of failure to abate as set forth in Paragraph 1 above and withdraws its
   notice of contest to the notification of failure to abate as amended herein.

3. With respect to mechanical power presses at National
   Metalwares, the parties agree that the issue of safeguarding the point of operation must
   be approached on a die-by-die basis.

4. National Metalwares represents that on each die currently in
   active use (a list of such dies is attached as Exhibit A), the means of safeguarding the
   press operator from the hazard of the point of operation is either physical restraints or
   two-hand controls with the exception of Dies Nos. 355, 359, 478 and 933. With respect to
   Dies Nos. 355, 359, 478 and 933, the means for protecting the press operator from the
   hazard of the point of operation is a safeguarding system consisting of (a) a physical
   barrier attached to the press with openings designed to satisfy two conditions - (i) allow
   an elongated, tubular part to be inserted into the die area and (ii) allow the press
   operation to be performed on the part; (b) an elongated tubular part in the barrier
   opening throughout the press cycle; and (c) an operator holding the elongated tubular part
   with both hands during the press cycle. In connection with Die No. 933 the parties have
   agreed that Respondent will incorporate the changes which are set forth in Exhibit B
   hereto. The safeguarding systems utilized with respect to Dies Nos. 355, 359, 478 and 933
   (as set forth on Exhibit B for Die No. 933) have been reviewed by the Complainant and each
   system is in compliance with the point of operation safeguarding requirements of 29 CFR �
   1910.217. The parties also agree that the use of properly adjusted physical restraints or
   two-hand controls on the other Dies identified on the notification of failure to abate
   constitute compliance with the point of operation safeguarding requirements of 29 CFR �
   1910.217.

5. National Metalwares further represents that after July 1,
   1991, when new dies are added to its operation or existing dies are modified, it will
   attempt to utilize physical restraints or two-hand controls as the means of safeguarding
   the point of operation. If National Metalwares' analysis demonstrates that physical
   restraints or two-hand controls cannot be used on a new or modified die and if the
   physical barrier openings referred to in (b) (i) below cannot conform to the requirements
   of Table 0-10 of 29 CFR � 1910.217 for the reasons set forth in (b) (i) below, then
   National Metalwares will (a) document the reason(s) why physical restraints or two-hand
   controls cannot be used with respect to the die in question and (b) design and construct a
   safeguarding system for use with that die consisting of (i) a physical barrier with
   openings designed to satisfy two conditions - allow the elongated, tubular part utilized
   in conjunction with the die to be inserted into the die area and allow the press operation
   to be performed on the part; (ii) an elongated tubular part in the barrier opening
   throughout the press cycle; and (iii) an operator holding the elongated tubular part with
   both hands throughout the press cycle, provided further that the design shall consider and
   account for the issue of whether an adjacent opening(s) in the barrier shall expose an
   employee to a point of operation or nip point hazard if the hand slips while holding a
   tubular part. A safeguarding system meeting the conditions of this paragraph is in
   compliance with 29 CFR � 1910-217.

6. The parties agree that the terms of Paragraph 5 of this
   Agreement shall remain in effect for a term of six (6) years from the date of execution of
   this Agreement. After the six-year period, the terms of Paragraph 5 shall continue to
   remain in effect unless one of the parties to this Agreement gives a written notice of
   termination by certified mail to the other party and upon such notice the terms of
   Paragraph 5 shall expire 120 days after the date the written notice is received. If
   Paragraph 5 is terminated under the terms of this Paragraph and if a citation is
   subsequently issued alleging that a safeguarding system meeting the terms of Paragraph 5
   violates the point of operation safeguarding requirements of 29 CFR � 1910.217, then with
   respect to that first subsequent citation, Respondent shall not be barred from raising any
   defense to that citation including those raised in this proceeding and the Judge's
   decision in this matter shall not have preclusive effect on any issue raised by that first
   subsequent citation.

With Respect to Item No. 1 of Citation No. 2 (Paragraphs 6-9
of This Agreement)

7. Respondent hereby withdraws its notice of contest to Item
   No. 1 of Citation No. 2.

8. Complainant has no objection to the withdrawal of
   Respondent's notice of contest to Item No. 1 of Citation No. 2.

9. Item No. 1 of Citation No. 2 claims that the machine guarding in place on Pines Tube
   Bender No. 1 was not adequate to meet the requirements of 29 CFR � 1910.212(a)(1).
   Although Respondent does not admit the allegations of the citation, it has redesigned the
   guard on that machine. A schematic of that guard is attached hereto as Exhibit C.
   Complainant has reviewed the design set forth on Exhibit C and agrees that it is in
   compliance with the requirements of 29 CFR � 1910.212.

10. The parties agree to a penalty of $500 for Item. No. 1 of
    Citation No. 2.

General Provisions Applicable to All Issues

11. None of the foregoing agreements, statements, findings and
    actions taken by Respondent shall be deemed an admission by the Respondent of the
    allegations contained within the Notification of Failure to Abate, Item No. 1 of Citation
    No. 2 and the Notification of Penalty and the Complaint in this action. The agreements,
    statements, findings and actions taken herein are made for the purpose of compromising and
    settling this matter economically and amicably.

12. The parties agree that this settlement agreement resolves
    all pending issues in the above matter and that this settlement agreement, and not the
    Judge's decision, shall control the outcome of this case.

13. Respondent has forwarded a check to Complainant made out to
    "United States Department of Labor - OSHA" in the amount of Twelve Thousand
    Dollars ($12,000) in full payment of the penalties set forth herein.

14. It is hereby certified by Respondent that this Settlement
    Agreement has been given to employees represented by an authorized representative in
    accordance with Rules 7 and 100 of the Commission's Rules of Procedure. It is hereby
    further certified by Respondent that this Settlement Agreement has been served on
    employees not represented by an authorized employee representative, if any, by posting
    this agreement in a place where the Citation is required to be posted, in accordance with
    Rules 7 and 100 of the Commission's Rules of Procedure.

The Complainant and the Respondent agree that an order should
be entered which approves this agreement in all respects.

DATED: July 5, 1991.

NATIONAL METALWARES, INC.

DAVID S. FORTNEY

Deputy Solicitor of Labor

DANIEL MICK

Counsel for Regional Trial

Litigation

Attorneys for Lynn Martin

Secretary of Labor, United

States Department of Labor,

Complainant

Gary Hill

Its President

Charles M. Chadd

Attorney for

National Metalwares, Inc.

NOTICE

Any party (including any authorized employee representative of
affected employees and any affected employee not represented by an authorized
representative) who has any objection to the entry of an order as set forth in this
agreement, must communicate such objections within ten (10) days of the posting of this
agreement to the Executive Secretary, Occupational Safety and Health Review Commission,
1825 K Street, N.W., Room 401, Washington, D.C. 20006 with copies to attorneys for
complainant and respondent.

The pictorial exhibit referred to above is not available in
this format.

Please telephone the Review Commission Public Information Office,

FAX: 202-606-5050; e-mail: [email protected]

SECRETARY OF LABOR,

Complainant,

v.

NATIONAL METALWARES, INC.,

Respondent.

OSHRC Docket No. 89-0422

APPEARANCES:

Richard Kordys, Esquire, Office of the

Solicitor, U.S. Department of Labor,

Chicago, Illinois, on behalf of

complainant.

Charles M. Chadd, Esquire, Pope, Ballard,

Shepard and Fowle, Ltd., Chicago,

Illinois, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge:    Respondent, National
Metalwares, Inc., ("Natonal"), contests a notification of failure to abate
alleged violation and two citations issued by the Secretary of Labor
("Secretary") on January 12, 1989.  The proceeding was initiated following
an inspection of National's plant located at 900 North Russell Avenue in Aurora, Illinois,
by the Occupational Safety and Health Administration ("OSHA").

National is a manufacturer of tubular steel components and
sub-assemblies for other manufacturing companies.  It employs approximately 370
workers in Illinois, including 275 at the Aurora plant.

FAILURE TO ABATE

National entered into a settlement agreement with the Secretary
of Labor on August 1, 1988 (Ex. C-1; Tr. 48). The settlement agreement emanated from an
inspection conducted by OSHA in March 1988 (Tr. 47). The agreement, which became a final
order of the Review Commission on September 6, 1988, pertained to 29 CFR �
1910.217(c)(2)(i)(a) and included a petition for modification of abatement and failure to
abate alleged violation.

On November 17, 1988, OSHA safety supervisor Alex Smith visited
National's Plant, accompanied by three other OSHA employees to conduct a follow-up
inspection to determine whether National was in compliance with the settlement agreement.
Paragraph 11(a)(i) of the settlement agreement provides (Ex. C- 1):

11. This paragraph and its subparagraphs set out the method of
    selection of dies to be permanently guarded within the abated period.

(a) National Metalwares represents that the order of dies
selected selected to be permanently guarded will be such that no later than:

(i) October 1, 1988--all Category I and II dies selected to be
permanently guarded will have permanent guarding means completed.

The OSHA personnel measured each of the guards designed for the
Category I and II dies (Ex. C-13). OSHA contends that 11 of the 15 guards measured were
inadequate to guard the points of operation. The 11 alleged inadequate guards were for the
following press and die combinations (Ex. C-13):

(a)
Die

324,

Press

66

(b)
Die

355,

Press

85

(c)
Die

468,

Press

30

(d)
Die

227,

Press

37

(e)
Die

464,

Press

67

(f)
Die

919,

Press

78

(g)
Die

322,

Press

83

(h)
Die

469,

Press

70

(i)
Die

116,

Press

32

(j)
Die

779,

Press

38

(k)
Die

620,

Press

54

The Secretary contends that National's guards for these presses and dies failed to meet
the requirements of 29 C.F.R. � 1910.217(c)(2)(i)(a) which provides:

Every point of operation guard shall meet the following design,
construction, application, and adjustment requirements:

(a) It shall prevent entry of hands or fingers into the point
of operation by reaching through, over, under, or around the guard.

Section 1910.217(c)(2)(i)(b) of 29 C.F.R. provides:

It shall conform to the maximum permissible openings of Table 0-10.

Table 0-10 provides:

The pictorial exhibit referred to above is not availabel in
this format.

Please telephone the Review Commission Public Information Office,

202-606-5398, to request a paper copy; TTY: 202-606-5386;

FAX: 202-606-5050; e-mail: [email protected]

This table shows the distances that guards shall be positioned
from the danger line in accordance with the required openings.

According to Smith's testimony, the relevant measurements for
the dies and presses are (Exs. C-4, C-5, C-6, C-10, C-11, C-12, C-14 through C-25, C-29
through C-39; Tr. 76, 89-94, 99-101, 107-108, 112-113, 116-117, 121-124, 130, 135-136,
144):

The pictorial exhibit referred to above is not available in
this format.

Please telephone the Review Commission Public Information Office,

202-606-5398, to request a paper copy; TTY: 202-606-5386;

FAX: 202-606-5050: e-mail: [email protected]

The distance from the guards to the points of operation of 11
cited dies and presses are greater than the distances allowed in Table 0-10. The Secretary
has shown that National was not in compliance with � 1910.217(c)(2)(i)(a) and was thus in
violation of the settlement agreement which specifically required such abatement.

In Braswell Motor Freight Lines, Inc., 77 OSAHRC 86/D4,
5 BNA OSHC 1469, 1470, 1977 CCH OSHD � 21,881 (No. 8480, 1977), the Review Commission
held that "the complainant's prima facie case of failure to abate is established upon
a showing that: (1) the original citation has become a final order of the Commission, and
(2) the condition or hazard found upon reinspection is the identical one for which
respondent was originally cited." The Secretary has met these two requirements.

The Review Commission goes on to say:

An employer may rebut this prima facie case by showing that the
condition was corrected or, if not corrected, that the employer has prevented the exposure
of his employees to the violative condition . . . . The prima facie case may also be
rebutted by a showing that the condition for which the employer was cited was in fact not
violative of the Act either at the time of the original inspection or at the time of
reinspection.

Id.

National argues that it was in compliance with � 1910.217
because it used the alternative of guarding devices.

Section 1910.217(c)(1)(i) provides:

It shall be the responsibility of the employer to provide and insure the usage of
"point of operation" guards or properly applied and adjusted point of operation
devices on every operation performed on a mechanical power press. See Table 0-10.
(Emphasis added.)

National argues that it is irrelevant that its guards are not in conformance with Table
0-10 if they have properly applied and adjusted point of operation devices. National
claims that its "three-part safeguarding system" brings it into compliance with
� 1910.217 by way of � 1910.217(c)(3)(i)(b), which provides:

Point of operation devices shall protect the operator by:

(b) Preventing the operator from inadvertently reaching into
the point of operation, or withdrawing his hands if they are inadvertently located in the
point of operation, as the dies close.

National's "three-part safeguarding system" consists of (1) the actual guard,
(2) the opening being so small that it only accommodates the tubular part, and (3) the
requirement that the operator hold the part with both hands. This system does not meet the
requirements of a "device." Section 1910.211(d)(11) provides:

(11) "Device" means a press control or attachment
that:

(i) Restrains the operator from inadvertently reaching into the
point of operation, or

(ii) Prevents normal press operation if the operator's hands
are inadvertently within the point of operation, or

(iii) Automatically withdraws the operator's hands if the operator's hands are
inadvertently within the point of operation as the dies close, or

(iv) Prevents the initiation of a stroke, or stops of stroke in
progress, when there is an intrusion through the sensing field by any part of the
operator's body or by any other object.

National's system described a method and not a device, National did not have proper
"point of operation" guards or properly applied and adjusted point of operation
devices in accordance with � 1910.217(c)(1)(i). Therefore, its argument that it was in
compliance with � 1910.217 must fail.

National argues that if it was not in compliance with �
1910.217, then compliance with � 1910.217(c) is infeasible. National did not contact OSHA
regarding this perceived infeasibility, nor did it petition for a modification of
abatement on this point. The record establishes that at the time of the hearing, National
was using restraints as the primary safeguarding method on 9 of the 11 cited presses and
dies (Tr. 222-223). National claims that restraints cannot be used with Dies #779 and #355
(Tr. 326-342).

National's implementation of the hand restraints contradicts
its argument that the use of alternative means of guarding was not available at the time
of the inspection. National's claim of infeasibility must fail. Finally, National argues
that, even if it was in noncompliance with 1910.217, the violation was de minimis. This
argument is rejected.

Smith has spent 19 years in the safety compliance field. Since 1970 he has conducted
approximately 2,500 inspections, 2,300 of which involved machine point of operation
guarding (Tr. 25, 43). It was his opinion that the improperly guarded presses and dies
presented the hazard of amputated fingers and hands. This is a serious hazard, and it will
not be trivialized with a de minimis classification.

Section 17(d) of the Act provides for a penalty of not more
than $1,000 a day for each day that a violation continues to go unabated. The abatement
date set by the settlement agreement was October 1, 1988 (Ex. C-1). The inspection took
place on November 17, 1988. Upon full consideration of the facts, including the steps
taken by respondent to abate the violative conditions, a penalty in the amount of $23,000
is deemed appropriate.

CITATION ONE

National was also charged with the serious violations of 19
C.F.R. 1910.217(b)(4)(iii)[[1]] and 29 C.F.R. 1910.217(b)(7)(v)(b).[[2]] National was
cited as follows:

1

29 CFR 1910.217(b)(4)(iii): Pedal return springs of pedals used on mechanical power
presses using full revolution clutches, were not of the compression type, operating on a
rod or guided within a hole or tube, or designed to prevent interleaving of spring coils
in event of breakage:

Fabrication Department Back, L&J Press, #70

2

29 CFR 1910.217(b)(7)(v)(b): The two hand control system for mechanical power
presse(es) using part revolution clutch(es) was not designed to permit an adjustment
requiring concurrent pressure from both hands during the die closing portion of the
stroke:

Fabrication Department Back, Rousselle Press #69.

National does not dispute that it was not in compliance with
the cited standards. National disputes only the Secretary's proposed penalties of $400 for
each of the two items.

The Commission is the final arbiter of penalties in all
contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th
Cir. 1973). Under 17(j) of the Act, the Commission is required to find and give "due
consideration" to the size of the employer's business, the gravity of the violation,
the good faith of the employer, and the history of previous violations in determining the
assessment of an appropriate penalty. The gravity of the offense is the principal factor
to be considered. Nacirema Operating Co., Inc., 72 OSAHRC 1/B10, (p) BNA OSHC 1001,
1971-73 CCH OSHD 15,032 (No. 4, 1971).

Smith testified that the pedal return spring on Press #70 would
not prevent interleaving of the spring in the event of breakage. The spring, designed to
return the pedal to the proper position, could result in another stroke by the press ,if
broken. As to Press #69, Smith stated the controls did not require concurrent contact with
the buttons. In both instances, the hazardous conditions could result in the amputation of
employees' fingers and hands.

After considering the factors used for determining penalties, a
penalty in the sum of $200 for each item is deemed appropriate.

CITATION TWO

National was charged with a repeat violation of 29 C.F.R. �
1910.212(a)(1), which provides:

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 citation alleged:

1

29 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protect operators and
other employees from hazards created by pinch points:

Fabrication Department Back, Pines Tube Bender #1, at Press *69, the pinch point created
by the clamping arm was not adequately guarded.

The National Metalware Incorporated was previously cited for a
violation of this occupational safety and health standard or its equivalent standard 29
CFR 1910.212(a)(1) which was contained in OSHA inspection number 2433977, citation number
1, item number 2, issued on 4/28/86.

National argues that the cited guard was based on a design
created for the company by an OSHA engineer in 1987 (Ex. R-8; Tr. 175). R-8 depicts a
diagram of the proposed guard. Under "Notes," R-8 states in pertinent part:
"This conceptual (drawing) is prepared for design information. Company's engineering
shall work the dimensional tolerances . . . "

National claims it is unfair for OSHA to instruct National to
work on the dimensional tolerances and then cite the company for having the incorrect
dimensional tolerances. National is mistaken in assuming that, because OSHA did not
dictate the dimensional tolerances in the conceptual drawing, National was free to ignore
the requirements of the cited standard.

Smith testified that the guard in question "was not
properly position to prevent entry into the pinch point" (Tr. 158). The likely
injuries resulting from such a condition are the crushing or amputation of the fingers
(Tr. 159). National was in violation of � 1910.212(a)(1).

"A violation is repeated under section 17(a) of the Act if, at the time of the
alleged repeated violation, there was a Commission final order against the same employer
for a substantially similar violation." Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA
OSHC 1061, 1979 CCH OSHD � 23,294, p. 28,171 (No. 16183, 1979).

National had previously been cited on April 28, 1986, for
improperly guarding the pinch points on a Pines Tube Bender (Ex. C-42; Tr. 160). (There is
no dispute that the citation alleging violation of 1910.212(a)(1) became a final order
June 1, 1987.) The violations were substantially similar. National was in repeat violation
of � 1910.212(a)(1); and, upon consideration of all factors, a penalty of $500 is deemed
appropriate.

The foregoing constitutes the findings of fact and conclusions
of law under Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing findings of fact and conclusions of
law, it is hereby ORDERED:

1. The citation for failure to abate is affirmed and a penalty
   of $23,000 is assessed.

2. Citation 1 is affirmed and a penalty of $400 is assessed.

3. Citation 2 is affirmed and a penalty of $500 is assessed.

Dated this 15th day of May, 1990.

PAUL L. BRADY

Judge

FOOTNOTES:

[[1]] Section 1910.217(b)(4)(iii) provides:

The pedal return spring(s) shall be of the compression type,
operating on a rod or guided within a hole or tube, or designed to prevent interleaving of
spring coils in event of breakage.

[[2]] Section 1910.217(b)(7)(v)(b) provides:

The control system shall be designed to permit an adjustment
which will require concurrent pressure from both hands during the die closing portion of
the stroke.