Parsons Company, Inc.

Plain-English summary

Parsons Company, Inc. used a metal shear with a finger guard that could move out of alignment and a press brake with no point-of-operation guard. An employee reached beneath the shear guard after scrap slipped and lost the tips of six fingers when he accidentally activated the machine. The judge found that Parsons knew the shear guard had alignment problems but did not inspect it on a schedule or train operators to identify the condition. He declined to use an ANSI clearance rule that had not been incorporated into the OSHA standard, but held that the accident itself showed the guard did not prevent access to the danger zone. The press-brake violation was also established through employee testimony, and the judge rejected challenges to the inspection and evidence. Both violations were reduced from willful to serious because the Secretary did not prove conscious disregard or plain indifference. Separate penalties of $4,900 were assessed for each item, totaling $9,800.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: Both guarding violations were affirmed as serious rather than willful, with total penalties of $9,800.
• Key point: Constructive knowledge and inadequate guarding established serious violations, but did not alone prove the heightened state of mind required for willfulness.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

                           v.                                OSHRC DOCKET NO. 97-0216

PARSONS COMPANY, INC.,
Respondent.

APPEARANCES:

      For the Complainant:
               Leonard Borden Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois

      For the Respondent:
               Robert Walsh, Esq., Walsh, Fleming & Chiacchia, P.C., Blasdell, New York

Before: Administrative Law Judge: James H. Barkley

                                           DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651 et seq.; hereafter called the AAct@).
Respondent, Parsons Company, Inc. (Parsons), at all times relevant to this action maintained a place
of business at the junction of Route 116 and 117, Roanoke, Illinois, where it was engaged in cutting sheet
metal and related activities. Respondent admits it is an employer engaged in a business affecting commerce
and is subject to the requirements of the Act.
On December 13, 1996, and thereafter, the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Parsons= Roanoke work site. As a result of that inspection, Parsons was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice of contest
Parsons brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).
 On July 29, 1997, a hearing was held in Peoria, Illinois. The parties have submitted briefs on the
issues. In addition Parsons has submitted its motion to dismiss portions of the citation and to strike certain
testimony. Complainant has filed its response and these matters are ready for disposition.
Alleged Violations
Willful citation 1, item 1 alleges two instances where CFR 1910.212(a)(3)(ii) were violated:
a. In the Fabrication Department, the point of operation of the Amada 1/4" Shear, serial
number 40650027, was not guarded due to the fact that the finger guard was not adjusted
to prevent the operator from having any part of his/her body in the danger zone during the
operating cycle.

    b.     On or about October 11, and December 6, 1996, in the Fabrication Department, the point
           of operation on the Cincinnati Shaper Co. 350 Ton Press Brake was not guarded to prevent
           the operator from having any part of his/her body in the danger zone during the operating
           cycle.

    The cited standard provides:

    The point of operation of machines whose operations exposes an employee to injury, shall be
    guarded. The guarding device shall be in conformity with any appropriate standards therefore, or,
    in the absence of applicable specific standards shall be so designed and constructed as to prevent
    the operator from having any part of his body in the danger zone during the operating cycle.

                                           Amada Shear

Facts
On November 19, 1996 a Parsons employee, Wesley Schalk, was injured while cutting scrap on the
Amada 1/4" shear. A piece of metal slipped out of Schalk=s hands as he pushed it under the shear blades;
Schalk automatically reached under the shear=s finger guard to retrieve the piece. As Schalk reached under
the finger guard, he accidentally depressed the shear=s foot pedal and activated the shear, amputating the
tips of his six middle fingers (Tr. 193-95). A complaint regarding the November 19 accident was filed with
OSHA, and Compliance Officer (CO) Nick Walters was assigned to inspect Parsons= Amada shear (Tr. 69-
70).
CO Walters testified that the Amada shear consisted of a 13 foot long worktable approximately 2-3
feet wide (Tr. 74). A blade runs the length of the table; a hold down bar made up metal Afeet@ joined by
three metal rods is located in front of the blade (Tr. 75, 79; Exh. C-2 through C-5). The hold down bar
forces the metal sheet flat against the worktable during the shearing operation (Tr. 75). Walters observed
a Parsons employee, Derrick Perry, feeding sheet metal into the point of operation with his left hand.
During the feeding operation, Perry=s left hand was next to the hold down bar, approximately four inches
away from the point of operation (Tr. 74-78; Exh. C-3, C-4).
 Walters testified that a finger guard intended to keep the operator=s fingers out of the point of
operation is located behind the hold down bar, approximately 1" to 1-1/8" in front of the blade (Tr. 81, 84,
88, 90). CO Walters found that the north end of the finger guard was approximately 2" above the surface
of the work table (Tr. 89). At the south end of the shear, the finger guard was between 2" and 5/8" above
the work table (Tr. 90-91). CO Walters stated that '1910.212(a)(3)(ii), which in his view adopts ANSI
standard B11.4,1 allows no more than 1/4" clearance for a finger guard which is 1-1/8" from the point of
operation (Tr. 99).
James Kenagy, Parsons= maintenance manager (Tr. 239), stated to CO Walters, and again at the
hearing, that Parsons= had trouble with the finger guard before. Bowed and twisted metal fed into the
machine could bump up the hold down bar and finger guard enough to allow the operator to get his fingers
into the point of operation (Tr. 95, 240, 247, 267). When the guard became bent Kenagy adjusted it by
placing a 1/4" plate on the worktable, and adjusting the guard downward until it began to interfere with the
placement of the steel (Tr. 241). The guard was not adjusted on a regular schedule; Kenagy would be
called in to remove a sheet of metal which had became caught, and would readjust the guard downward at
that time (Tr. 247, 273-74).
Schalk=s training included instructions to keep his hand out of the shears (Tr. 184, 204-05). Schalk
stated that there was no way to get his hand close to the blade of the shear he was trained on, because of
the guard (Tr. 185). Schalk received no safety training specific to the Amada shear (Tr. 186-87); no one
discussed the possibility of problems with the finger guard with him (Tr. 197).
Kenagy testified that after the accident, the maintenance department began to check the guard on
the shear on a weekly basis (T. 247-48). After the OSHA inspection, they bolted blocks across the slots
where the guard attaches to the shear in order to keep it from riding up (Tr. 251, 268, 270). In addition,
they shimmed the guard out 1/4" further from the blade. Kenagy stated that the distance between the blade
and the guard was now 1-1/2", which allows them to maintain a 3/8" clearance between the guard and the
work table (Tr. 259). Finally, shear operators were told of the problems with the guard, and asked to
immediately inform the maintenance department if any pieces became caught, or any parts looked bent (Tr.
252-53).

       1
           The ANSI standards were not introduced into evidence.




                                                        3

CO Walters returned to Parsons= work site on December 23, 1997 (Tr. 130). At the hearing
Walters testified that Schlink told him that the finger guard on the Amada shear had been adjusted, but that
when he measured the distance between the guard and the worktable he found it to be greater than 3/8"
(Tr. 140-43; Exh. C-14). Walters testified that he did not measure the distance from the point of operation
to the finger guard, because it did not appear to have changed between December 13th and the 23rd (Tr.
168). Walters stated that if the distance between the point of operation and the guard was 1-1/2" or
greater, OSHA regulations allowed for a 3/8" clearance between the finger guard and worktable (Tr. 169),
and that if the shear blade was 1-1/2" or more from the guard, the Amada shear was in compliance on
December 23 (Tr. 171). Walters testimony on this point again assumes the ANSI standard is adopted by
the OSHA standard.
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the
cited standard, (3) employees had access to the violative condition and (4) the cited employer either knew
or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker Towing
Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD &29239, p. 39,157 (No. 87-1359, 1991).
The cited standard=s guarding requirements apply when a machine=s point of operation exposes an
employee to injury. Rockwell International Corp., 9 BNA OSHC 1092, 1980 CCH OSHD &24,979 (No.
12740, 1980). In this case, the standard=s applicability is clear.
Section 1910.212(a)(3)(iv) lists a number of machines which usually require point of operation
guarding; shears are listed at (iv)(b). Both the manufacturer and employer recognized the need for
guarding; the shear came equipped with guards (Tr. 249). The testimony establishes that operation of the
shear requires the operator to place his hands within inches of the zone of danger, exposing him to injury.
Finally, there was an injury incurred, allegedly as a result of the inadequacy of the guard. The standard
clearly applies, the issue in this case is whether the guard on the Amada shear conformed with the minimum
requirements of the standard.
The standard requires that guards shall conform with appropriate standards, or, Ain the absence of
applicable specific standards shall be so designed and constructed as to prevent the operator from having
any part of his body in the danger zone during the operating cycle.@ Here, the parties made no showing that
applicable specific standards apply to the cited shear.

                                                  4

At the hearing Complainant introduced evidence, through the CO, that the finger guard on the
Amada shear failed to meet the requirements of an industry consensus standard, ANSI B11.4. The
Commission, however, has held that Aapplicable specific standards,@ for the purpose of '1910.212(a)(3)(ii)
refers only to standards published or incorporated by reference as OSHA standards, rather than to industry
consensus standards. George C. Christopher & Sons, Inc., 10 BNA OSHC 1436, 1982 CCH OSHD
&25,956 (No. 76-647, 1982).
It is well settled that the Secretary may not extend the reach of a standard beyond the plain meaning
of a regulation's language, thus depriving the employer of fair warning of proscribed conduct. See e.g.,
Bethlehem Steel v. OSHRC, 573 F.2d 157 (3rd Cir. 1978); Dravo Corporation v. OSHRC, 613 F.2d 1227,
(3rd Cir. 1980). Because the cited standard does not reference the ANSI standards in any way, the
Secretary may not rely on the provisions of ANSI B11.4. To rule otherwise would require the employer
to comply with a standard of which it has no notice.
In the absence of applicable specific standards, a guard is considered adequate where its is designed
and constructed so as to prevent the operator from having any part of his body in the danger zone during
the operating cycle. The accident indisputably establishes that the Amada shear guard was inadequate to
prevent the operator from reaching into the point of operation as it was configured on November 19, 1996.
The guard was not, therefore, in compliance with the standard.
As noted above, employer knowledge is established where it is shown that the employer knew or
with the exercise of reasonable diligence could have known of the violative conditions. Due diligence
includes Athe obligation to inspect the work area, to anticipate hazards to which employees may be exposed,
and to take measures to prevent their occurrence.@ Frank Swidzinski Co., 9 BNA OSHC 1230, 1233, 1981
CCH OSHD &25,129, p. 31,032 (No. 76-4627, 1981). The testimony of James Kenagy establishes that
Parsons was aware of the finger guard=s tendency to come out of adjustment and to ride up high enough
to allow operators to get their fingers into the point of operation. Though Kenagy adjusted the guard when
he knew it was out of alignment, there was no established schedule for checking the guard. Operators were
not trained to check the guard=s alignment prior to using the shear. A reasonably diligent employer, aware
of problems with the finger guard=s alignment, would have regularly inspected the finger guards, and/or
trained shear operators to recognize and inform maintenance when the guards came out of alignment.
Employer knowledge has been established.
The Secretary has established that the cited standard applies to the Amada shear, that the shear
guard did not conform with the standard, and that the shear operator was exposed to the cited hazard.

                                                5

Parsons= knew, or in the exercise of due diligence should have known of their employees exposure to the
hazard. Complainant has made out its prima facie case.

Employee Misconduct
In order to establish an unpreventable employee misconduct defense, the employer must establish
that it had: established work rules designed to prevent the violation; adequately communicated those work
rules to its employees (including supervisors); taken reasonable steps to discover violations of those work
rules; and effectively enforced those work rules when they were violated. New York State Electric & Gas
Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD &30,745 (91-2897, 1995).
The violation in this case is the misalignment of the required finger guard. Parsons introduced no
evidence that it had any rules in place designed to assure that the shear was not operated while the guard
was out of alignment.2 Parsons has not, therefore, made out an employee misconduct defense.
The violation is established.
Willful
A willful violation is one committed with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety. It is differentiated from other types
of violations by a heightened awareness -- of the illegality of the conduct or conditions -- and by the state
of mind -- conscious disregard or plain indifference. Wright and Lopez, Inc., 8 BNA OSHC 1261, 1980
CCH OSHD &24,419 (No. 76-3743, 1980).
This is not a case in which the employer failed to provide guards on a machine that clearly called
for them; finger guards were in place on the Amada shear. However, the guards came out of adjustment
when bowed stock was cut. The record establishes that Parsons failed to meet the standard of due diligence
in anticipating and taking precautions to protect its employees from the hazard created by the misaligned
finger guard. Parsons failure to prevent the anticipated hazard is adequate to establish constructive
knowledge of the cited conditions. An employer=s constructive knowledge of a hazardous condition is

         2
          Where, as here, physical guards are required under the terms of the standard, the employer may not rely on

employee training in lieu of providing adequate guards. Parsons, therefore, may not rely on its instructions to Schalk
warning him to keep his hands away from the blades.

                                                          6

insufficient to support a finding that a violation was willful in nature; additional evidence demonstrating the
employer=s conscious disregard for the requrements of the Act, or for employee safety is required.
Complainant relies on Parsons failure to comply with the 1/4" clearance established under ANSI
guidelines to establish that heightened awareness. Complainant maintains that the measurements taken by
the CO on December 13, and 23 demonstrate that Parsons continued to ignore the 1/4" clearance
requirement even after its shear operator sustained a severe injury on the shear, and that Parsons= was
indifferent to both the requirements of the standard, and the safety of its employees.
As discussed above, the ANSI standards were not adopted or referenced under '1910.212(a)(3)(ii),
were never introduced into evidence, and are no more than advisory guidelines. Parsons failure to adhere
to such guidelines3 cannot serve as a basis for a willful citation. Because no other evidence was introduced
to show that the guard, as adjusted on December 13 and 23, would not have prevented the operator from
having any part of his body in the danger zone during the operating cycle, this judge cannot find that the
adjustment of the guard, which allowed a gap of between 3/8 and 5/8 inches, violates the standard, much
less demonstrates an indifferent state of mind.
Since the accident Parsons has taken a number of measures to correct the problem of the finger
guard coming out of alignment, including the installation of blocks, shimming the hold down out further
from the blade, and instituting a regular schedule for checking the finger guard clearance.4
Taking into account the single proven violation and given Parson=s efforts at abatement, I cannot
find that the cited violation was willful in nature. This instance will be affirmed as a Aserious@ violation.
Press Brake
Facts
The Inspection. Upon CO Walters= arrival at Parsons, Walters conducted an opening conference
with Greg Schlink, the operations manager. Walters provided Schlink with a copy of the complaint, and
told Schlink that he would be investigating that item and any other hazards which were in plain view in the
inspection area. Walters testified at the hearing that Schlink told him that was fine (Tr. 71-72).

        3
           It is not clear, moreover, that the finger guard was out of alignment during the December 23, 1996 inspection

due to the incomplete measurements taken by the CO.

        4
           Absent is the institution of employee training informing operators of safe clearances and prohibiting the use

of the shear where such clearances are exceeded. In itself, however, this failure is insufficient to establish that the cited
violation was willful.

                                                             7

Schlink testified that he understood Walters= explanation of the scope of the inspection (Tr. 297).
Schlink never told Walter that he objected to any portion of the inspection (Tr. 298). Schlink testified that
he did not believe that he could not stop Walters from conducting the inspection (Tr. 297).
Press Brake. While returning to Parsons= offices after inspecting the Amada shear, Walters noticed
a Cincinnati mechanical press brake (Tr. 104-05). There was no point of operation guarding on the press
brake (Tr. 105; Exh. C-9). Schlink was present as Walters began to videotape the press brake, and did not
object to Walters= taping (Tr. 107). Schlink told Walters he was aware of the need to provide guards on
the press brake, and had gotten bids on a light curtain to guard the point of operation three or four years
prior to the inspection (Tr. 108-09, 159-60).
Schlink told Walters that Danny Berry, a Parsons employee, had used the press brake
approximately a week before. Berry was called over and he and Walters were shown to an office so that
Berry could be interviewed (Tr. 109-13). Berry told Walters that he last operated the press brake a week
prior to the inspection, during which operation he had not placed his hands within 24" of the press brake=s
point of operation (Tr. 114). However, Berry also stated that he had straightened some track guards on the
press brake approximately two months prior to the inspection (Tr. 114). During that operation he had
needed to place his hands approximately four inches from the point of operation (Tr. 114).
At the hearing, Wesley Schalk testified that he used the press brake two or three times shortly after
he was hired in October 1996 (Tr. 179-80, 189). Schalk estimated that his hands were approximately 3 to
4" from the point of operation when he was straightening 8" steel (Tr. 182). There was no point of
operation guarding on the machine when he used it (Tr. 181).
Discussion
As a threshold matter, Parsons requests that the testimony of Wesley Schalk and evidence gathered
by CO Walters regarding the press brake be stricken.
Testimony of Wesley Schalk. Parsons requests that Schalk=s testimony regarding his operation
of the press brake be stricken. Parsons maintains that it was not apprised of Complainant=s intent to elicit
such testimony, and was prejudiced in its ability to defend against it.
In its pre-hearing statement, the Secretary stated that Schalk would testify to Athe positions,
instruction, assignment and work he performed at Parsons including his operation of the press brake.. . .@
Parsons argues that, given the lack of detail in this statement, it reasonably believed this statement was a
typographical error, and was intended to refer to the Amada shear.

                                                 8

The press brake was placed in issue by the Secretary=s pleadings. The Secretary=s pre-hearing
statement gave Parsons notice that Schalk would testify as to the press brake, as, in fact, Schalk did. No
relief is available merely because Parsons did not believe Complainant=s pre-hearing statement. Parsons=
post-hearing motion to strike is DENIED.
Consent to the Inspection. Parsons argues that the scope of the OSHA inspection exceeded
Parsons= consent, insofar as it addressed hazards presented by the Cincinnati press brake. Parsons maintains
that any consent was involuntary. Parsons further maintains that CO Walters misrepresented the scope of
the inspection, in that the cited violation was not in plain view.
Parsons points out there can be no violation of '1910.212(a)(3)(ii) without proof that the method
of operation places the operator in the zone of danger. Because the press brake was not in operation at the
time of the inspection, CO Walters could not have actually seen the cited violation. Parsons argues that
Walters= expansion of the search to include employee interviews to ascertain the operation of the press
brake exceeded the represented scope of the inspection.
Parsons admits that it consented to the OSHA inspection. Where, as here, an employer consents
to an inspection, relief is available only if the employer can present clear and convincing proof that the
Secretary=s affirmative misrepresentation resulted in such consent. An inspecting officer is not generally
obligated to inform the employer of its rights to object and demand a warrant. Moreover, an employer=s
failure to protest undermines that employer=s attempt to show its consent was coerced. Secretary of Labor
v. Sanders Lead Company, 15 BNA OSHC 1640, 1991-93 CCH OSHD &29,690 (No. 87-260, 1992)
(citations omitted).
The evidence does not establish any misrepresentation by CO Walters. Walters observed an
unguarded machine, which led him to investigate further. The D.C. Circuit has held that AOSHA=s right to
inspect must necessarily include some right of closer examination once an observation is made which
justifies a reasonable suspicion that a violation exists.@ Donovan v. A.A. Beiro Construction Company, Inc.,
746 F.2d 894 at 903 (D.C. Cir. 1984). Danny Berry=s interview was justified by Walter=s reasonable
suspicion that the unguarded press brake posed a hazard to the machine=s operators. Moreover, any
expansion of the search was also consented to; Parsons= representative not only failed to object, but actively
participated in securing Berry=s interview for the CO.
Parsons= consent was valid. Its post-hearing motion is DENIED.

                                                  9

The Violation. The evidence establishes that the press brake was unguarded, and when in
operation exposed employee operators to the hazard of having their hands crushed in the point of operation.
Respondent offered no evidence in rebuttal or mitigation. The violation is established.
Willful
Complainant bases the Awillful@ classification solely on Parsons= admission that it solicited a bid on
a light curtain. This single fact is insufficient to carry the Secretary=s burden of proving, by a preponderance
of the evidence, that Parsons was indifferent to the requirements of the Act, or to employee safety. In the
absence of additional information regarding this machine, its operation, its injury history, if any, citation
history, if any, and the reason the light curtain was rejected, a finding that this violation was willful cannot
be made.
Penalty
The violations are both high gravity serious, in that the most probable result of an accident involving
either the shear or the press brake is amputation (Tr. 152). CO Walters testified that the probability of an
accident on the shear was high because the shear was in almost continual use, six to eight hours daily (Tr.
152). The probability of an accident occurring on the press brake was also high, because no guard
whatsoever was provided. Parsons was entitled to a reduction in the penalty based on the number of
employees, and on the absence of prior violations (Tr. 152). A combined penalty of $49,000.00 was
proposed.
It is well settled that the Commission has the sole authority to assess penalties. The Secretary=s
proposed penalties are merely advisory; the judge=s determination of the penalty is de novo. Valdak Corp.,
17 BNA OSHC 1135, 1995 CCH OSHD &30,759 (No. 93-0239, 1995); Hern Iron Works, 16 BNA OSHC
1619, 1994 CCH OSHD &30,363 (No. 88-1962, 1994). In this case, the Secretary=s assessment of the
gravity of the violations, together with the adjustment for size and history are accepted. However, because
the violation was not found to be willful, the proposed penalties will be reduced by a factor of 10, the
multiplier used by the Secretary in assessing the penalties for willful violations. Finally, given the factual
differences between the two violations, the type of machines involved, the types of guarding in place and
the fact that an injury occurred at one machine and not the other, I find that separate penalties are
appropriate. See, Caterpillar, Inc., 15 BNA OSHC 1953, 1991-93 CCH OSHD &29,962 (No. 87-922,
1993)[The Commission has the authority to assess separate penalties for separate violations of a single
standard or regulation where the cited regulation permits multiple units of prosecution].
A penalty of $4,900.00 is assessed for each violation.

                                                    10

ORDER

1. Citation 1, item 1a, alleging violation of '1910.212(a)(3)(ii) is AFFIRMED as a Aserious@ violation
   of the Act, and a penalty of $4,900.00 is ASSESSED.
2. Citation 1, item 1b, alleging violation of '1910.212(a)(3)(ii) is AFFIRMED as a Aserious@ violation
   of the Act, and a penalty of $4,900.00 is ASSESSED.

                                                  James H. Barkley
                                                  Judge, OSHRC
   

Dated:

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