Riverdale Mills Corp. v. Occupational Safety & Health Review Commission , 29 F. App'x 11 ( 2002 )

[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1060
RIVERDALE MILLS CORP.,
Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION AND SECRETARY OF LABOR,
Respondents.
ON PETITION FOR REVIEW OF AN ORDER OF THE
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
[Hon. G. Marvin Bober, Administrative Law Judge]
Before
Boudin, Chief Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Warren G. Miller, on brief, for petitioner.
Judith E. Kramer, Acting Solicitor of Labor, Joseph M. Woodward,
Associate Solicitor for Occupational Safety and Health, Ann Rosenthal,
Counsel for Appellate Litigation, and Scott Glabman, Attorney, U. S.
Department of Labor, were on brief, for respondent.
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
February 21, 2002
JOHN R. GIBSON, Senior Circuit Judge. A f t e r a w o r k e r a t
Riverdale Mills caught his hand in a flattening machine, the
Occupational Safety and Health Review Commission found Riverdale Mills
Corporation had committed two serious violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1994 and Supp. IV
1998): failing to install an adequate safety guard on the machine and
failing to properly select the appropriate hand protection gear for
people operating the machine. Riverdale petitions for review of the
Commission’s order. It contends that the accident was not caused by the
glove the worker was wearing, so the hand protection violation is not
supported by substantial evidence. As for the safety guard issue,
Riverdale contends that it provided an adequate guard in the form of a
trip wire over the front of the machine. Furthermore, even if the trip
wire was not an adequate guard, the company contends it established
affirmative defenses by showing there was no feasible alternative to
the trip wire, that other guard devices would create a greater hazard
than the unguarded machine, and that the accident was caused by
unpreventable employee misconduct. We deny the petition for review.
I.
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Riverdale Mills makes wire mesh for use in lobster traps.
A few of its customers require that the mesh be flattened, and to
accomplish this, Riverdale uses a machine called the Peck Shear and
Flattener, which can be used both to cut the mesh and to flatten it.
The machine flattens the mesh by feeding it between a series of upper
and lower rollers. The upper and lower rollers do not meet in pairs,
but are offset, with each upper roller about a half to three-quarters
of an inch behind the preceding lower roller. The machine operator
inserts a large panel of wire mesh over the first roller until the
panel catches under the second roller, which draws the panel into the
machine. The Peck machine at Riverdale was fitted with a trip wire
across the front of the machine, which would stop the rotation of the
rollers in response to pressure on the wire.
The wire mesh panels are coated with zinc, which makes them
rough to the touch, and they have cut edges, or selvages, which can cut
and puncture the hands of people handling them. Most of the Riverdale
employees who have to handle this kind of panel wear gloves to protect
their hands.
On April 2, 1999, Riverdale employee Panagis Bebedelis was
feeding wire mesh panels into the flattener when he caught his hand in
the machine. He screamed, and another employee came to his aid,
pulling the trip wire to stop the machine. Two Riverdale employees
freed Bebedelis from the machine, but he had broken three fingers.
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OSHA inspectors investigated the incident, interviewing
Riverdale employees, including Bebedelis. At the conclusion of the
investigation, the Secretary of Labor issued a Citation and
Notification of Penalty to Riverdale, alleging two serious violations
of OSHA regulations. The first citation alleged violation of 29 C.F.R.
§ 1910.138(b)2 in that Riverdale’s selection of hand protection measures
was not based on an evaluation of the performance characteristics of
the hand protection relative to the potential hazards. In particular,
the citation alleged:
(a) SHEAR DEPT.--EMPLOYEES HAD BEEN OFFERED THE OPTION OF
USING GLOVES BY THE EMPLOYER TO PROTECT THEIR HANDS WHILE
HANDLING GALVANIZED WIRE; BUT ON OR ABOUT 4/2/99, AN
EMPLOYEE WAS ALLOWED TO WEAR GLOVES WHILE MANUALLY FEEDING
WIRE PANELS INTO THE PECK SHEAR FLATTENER, EXPOSING EMPLOYEE
TO IN RUNNING NIP POINTS BETWEEN THE ROTATING ROLLS AT THE
OPERATOR’S STATION.
The second citation alleged violation of 29 C.F.R. §
229 C.F.R. § 1910.138 (1998), which was the regulation in
effect at the time of the accident, provided:
(a) General requirements. Employers shall select and
require employees to use appropriate hand protection
when employees’ hands are exposed to hazards such as
those from skin absorption of harmful substances;
severe cuts or lacerations; severe abrasions;
punctures; chemical burns; thermal burns; and harmful
temperature extremes.
(b) Selection. Employers shall base the selection of
the appropriate hand protection on an evaluation of
the performance characteristics of the hand protection
relative to the task(s) to be performed, conditions
present, duration of use, and the hazards and
potential hazards identified.
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1910.212(a)(1),3 in that "[m]achine guarding was not provided to protect
operator(s) and other employees from hazard(s) created by in-running
nip point(s)." The citation specified that "ON OR ABOUT 4/2/99, AN
OPERATOR OF A PECK SHEAR FLATTENER. . . GOT HIS LEFT HAND CAUGHT IN AN
UNGUARDED IN-RUNNING NIP POINT BETWEEN THE FIRST TWO ROLLS OF THE
FLATTENER WHILE MANUALLY FEEDING GALVANIZED WIRE PANELS AT THE
OPERATOR’S STATION."
Riverdale contested the citation before the Commission. The
Commission referred the case to an Administrative Law Judge, who held
329 C.F.R. § 1910.212 (1998), General requirements for all
machines, provided in relevant part:
(a) Machine guarding--(1) Types of guarding. One
or more methods of machine guarding shall be provided
to protect the operator and other employees in the
machine area from hazards such as those created by
point of operation, ingoing nip points, rotating
parts, flying chips and sparks. Examples of guarding
methods are--barrier guards, two-hand tripping
devices, electronic safety devices, etc.
(2) General requirements for machine guards. Guards
shall be affixed to the machine where possible and
secured elsewhere if for any reason attachment to the
machine is not possible. The guard shall be such that
it does not offer an accident hazard in itself.
(3) Point of operation guarding. (i) Point of
operation is the area on a machine where work is
actually performed upon the material being processed.
(ii) The point of operation of machines whose
operation exposes an employee to injury, shall be
guarded. The guarding device shall be in conformity
with any appropriate standards therefor, 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.
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a hearing. With regard to the hand protection violation, the ALJ
found:
At the time of the accident, [Riverdale] had a written rule
prohibiting the use of gloves near moving machinery.
However, [Riverdale] gave employees the option of wearing
gloves while operating the flattener function of the Peck
machine to protect their hands from cuts, abrasions and
punctures. [Riverdale’s] policy of allowing employees to
wear gloves if they wanted to when using the flattener was
clearly contradictory to the work rule prohibiting the use
of gloves near moving machinery. The company properly
identified the hazard of wearing gloves near moving
machinery, and it also properly identified the hazard of
cuts, abrasions and punctures from handling the wire mesh
panels. However, instead of evaluating these two hazards in
conjunction and devising work rules that would give clear
instruction to employees and provide protection against both
hazards, [Riverdale] had a policy that was by its own terms
contradictory and that put employees in the position of
having to choose between the hazard of broken fingers and/or
crushed hands and hazards such as cuts, abrasions and
punctures.
Based on these findings, the ALJ concluded that the Secretary
established the elements of an OSHA violation of the hand protection
regulation: that the regulation applied, the employer violated the
regulation, the employees had access to the violative condition, and
the employer knew of the condition. Furthermore, the ALJ found the
violation was serious because there was a substantial probability that
the use of gloves around moving machinery could have resulted in
serious physical harm.
In considering the alleged machine guard violation, the ALJ
found that section 1910.212(a)(1) applied to the Peck Shear and
Flattener because the place where the upper and lower rollers were in
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close proximity, rotating in opposing directions, created the kind of
nip point that triggered the need for a safety guard. The trip wire
did not function as a safety guard, so Riverdale violated the
regulation. It was undisputed that employees had access to the
violative condition for about twelve hours a month. It was obvious
from the warnings that Riverdale issued to its employees about the
machine that Riverdale knew of the dangerous condition. Thus, the
Secretary established all the elements of an OSHA violation in regard
to the lack of a safety guard on the machine.
The ALJ rejected Riverdale’s affirmative defense that the
trip wire was the only feasible means of guarding the nip point that
would not destroy the Peck machine’s utility. The ALJ found that there
were at least two feasible types of guards, and indeed, that Riverdale
had installed such devices by the time of the hearing. After the
accident, Riverdale installed a light curtain on the Peck machine. A
light curtain is a system of infrared lights that will shut off the
machine if something breaks the light beam. At first the curtain would
shut the machine off almost every time anyone loaded a panel into the
machine, but Riverdale installed a foot switch that allowed the
operator to turn the machine back on with his foot. After the
accident, Riverdale also installed a funnel, which extended out from
the Peck machine to form a barrier between the operator and the rollers
and which had only a narrow slit to receive the panels. The ALJ found
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that if the funnel were modified to narrow the opening and to situate
the funnel farther away from the rollers, the funnel would function as
an effective safety guard for the Peck machine. The ALJ rejected
Riverdale’s defense that the funnel would pose a hazard in its own
right; Riverdale did not apply for a variance pursuant to section 6(d)
of the OSH Act, and this failure made the "greater hazard" defense
unavailable to Riverdale. Moreover, the ALJ rejected, as not credible,
evidence from Riverdale’s witnesses that the funnel presented a hazard.
Finally, the ALJ rejected Riverdale’s assertion that the
accident was a result of unavoidable employee misconduct. Riverdale
contended that employees had been instructed not to hold the panels
once the machine had accepted the leading edge, but the evidence showed
that most if not all the employees kept their hands on the panels to
push them into the machine. Riverdale also contended that Bebedelis
was talking instead of concentrating on his job, but the evidence
showed that Bebedelis had a habit of talking while working, and
Riverdale had not adequately disciplined him to prevent recurrence of
this conduct. Thus, the ALJ found liability for the machine guard
violation, and he concluded the violation was serious.
The penalty was set at a total of $4,900 for the two
violations. Riverdale sought review, but the Commission did not elect
to review the ALJ’s decision. Consequently, the ALJ’s decision became
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the final order of the Commission.
II.
The Occupational Health and Safety Act, 29 U.S.C. § 660(a),
prescribes the standards for judicial review of the Commission’s
orders. Under section 660(a), we must defer to the Commission’s
findings of fact if they are supported by substantial evidence on the
record as a whole. P. Gioioso & Sons, Inc. v. Occupational Safety &
Health Review Comm’n, 115 F.3d 100, 108 (1st Cir. 1997). The
substantial evidence standard applies with equal force where the
Commission has adopted an ALJ’s findings of fact rather than conducting
its own hearing. Id. More generally, we will uphold agency
determinations unless they are arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. Id.
III.
Riverdale first argues that the hand protection violation was
not supported by substantial evidence because Bebedelis caught his
sleeve, not his glove, in the Peck machine. We need not delve into the
controversy between glove and sleeve because the violation charged
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would exist no matter which item of clothing was involved in the
accident. The violation alleged was failure to consider the relevant
hazards in deciding what hand protection employees should use. As the
ALJ pointed out, Riverdale recognized two hazards, that of gloves being
caught in moving machinery, and that of bare hands being cut or
punctured by the wire panels. Of the two hazards, the possibility of
catching a glove in a moving machine had more serious consequences.
Rather than adopting a hand protection policy that took into account
two simultaneous hazards, Riverdale adopted one policy forbidding use
of gloves around moving machinery, but then allowed employees to wear
gloves when using the Peck machine in order to avoid cuts. These
contradictory policies forced employees to choose which hazard to
protect against, thereby exposing them to one hazard or the other,
unabated. This constituted a violation of 29 C.F.R. § 1910.138 no
matter what may have caused the Bebedelis accident. The Secretary’s
determination was supported by substantial evidence.
IV.
Riverdale argues that it complied with 29 C.F.R. §
1910.212(a) by equipping the Peck machine with a trip wire that would
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stop the machine. The ALJ found that the trip wire did not effectively
guard the machine, as demonstrated by the fact that Bebedelis’s hand
went into the machine without activating the trip wire. The record
contains substantial evidence that the trip wire did not "prevent the
operator from having any part of his body in the danger zone during the
operating cycle." Section 1910.212(a)(3)(ii).
In what is apparently a contention of legal error, Riverdale
argues that the trip wire complied with an "appropriate" standard as
required by section 1910.212(a)(3)(ii) because it satisfied a standard
set by the American National Standards Institute for roll-forming and
roll-bending machines. OSHA has not incorporated the cited American
National Standards Institute document by reference in the regulation,
and it is therefore not an applicable standard within the meaning of
the regulation. See Secretary of Labor v. George C. Christopher & Son,
Inc., No. 76-647, 1982 WL 189089, at *6 (O.S.H.R.C. Feb. 26, 1982).
Moreover, examination of the American National Standards Institute
definitions shows that that organization distinguishes between
emergency stop controls, such as the trip wire on the Peck machine, and
guards, which prevent entry into the point of operation or other hazard
area. The Commission’s decision that the Peck machine was not guarded
in accordance with 29 C.F.R. § 1910.212(a) is not arbitrary or
capricious.
Riverdale raises three affirmative defenses: that it was
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infeasible to guard the machine; that the guard proposed by the ALJ
would present a greater hazard than the unguarded machine; and that the
Bebedelis accident was caused by unpreventable employee misconduct.
Riverdale has the burden of proof on these affirmative defenses. See
E & R Erectors, Inc. v. Secretary of Labor, 107 F.3d 157, 163 (3d Cir.
1997).
The ALJ rejected the impossibility and greater hazard
defenses for the simple reason that Riverdale had already fitted the
Peck machine with a light curtain and a funnel device, which, with
adjustments, would satisfy the machine guard requirement. Riverdale
argues that the funnel device poses a greater hazard than the unguarded
machine. The ALJ specifically found incredible Riverdale’s evidence
that the funnel was dangerous. Nelson Barnes, the OSHA assistant area
director, testified at the hearing that he had extensive experience in
machine guard safety. Barnes testified that the funnel device would
minimize or eliminate the danger from the Peck machine’s rollers. He
was examined at length about the possibility that workers’ hands could
be trapped in the funnel guard itself, and he steadfastly maintained
that it was more likely that the workers’ hands would be ejected from
the funnel, rather than being mashed against it. This was substantial
evidence to support the ALJ’s conclusion that the funnel guard was a
feasible means of compliance with the regulation.
Even if the funnel guard, which Riverdale installed on its
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own initiative, were dangerous, it was still Riverdale’s burden to
prove the absence of alternative means of protecting the employees.
See PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 895 (1st Cir. 1981).
The ALJ found that the light curtain was a feasible alternative.
Riverdale does not argue that the light curtain does not work or that
it creates a hazard in its own right, but only that it increases wear
and tear on components of the machine. Riverdale’s CEO, James M.
Knott, who designed the Peck machine, said that the light curtain
"works." The ALJ had before him substantial evidence that Riverdale
did not carry its burden of proof on its defenses.
Finally, Riverdale contends that the Bebedelis accident was
caused by the misconduct of Bebedelis himself, who was guilty of
talking and not handling the panel properly. According to Riverdale,
Bebedelis should have let go of the panel as soon as it caught in the
rollers. Riverdale contends Bebedelis caused the accident by holding
on to the panel and letting his fingers go through the holes in the
mesh. The ALJ found that most of the employees who used the Peck
machine kept their hands on the panels after the panels had caught in
the rollers, because they were correcting the angle at which the bowed
panels were entering the machine. If the employees were routinely
pressing on the panels as the panels fed through the machine, the other
employees were in danger of having their fingers caught in the mesh as
Bebedelis did. This manner of handling the panels was not isolated and
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unpreventable misconduct. The ALJ also found that Bebedelis was well-
known for talking while he worked, and Riverdale had failed to
discipline him effectively to prevent this conduct. There was evidence
that Riverdale had not done all it could to eliminate the employee
conduct to which it attributes the accident. See Secretary of Labor v.
Falcon Steel Co., Nos. 89-2883 & 89-3444, 1993 WL 155690, at *18-20
(O.S.H.R.C. April 27, 1993). These findings are supported by
substantial evidence.
We have considered Riverdale’s various other arguments and
conclude there are no meritorious grounds for review. Accordingly, we
deny the petition for review.
Denied.
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