United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No.: 17-0560

TMD Staffing,

 Respondent.

Appearances:

Lindsay A. Wofford, Esq.

Office of the Solicitor, U. S. Department of Labor, Dallas, Texas

For Complainant

Stephen R. McCown, Esq. and Travis J. Odom, Esq. 

Littler Mendelson, P.C., Dallas, Texas

For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

 DECISION AND ORDER

TMD Staffing (TMD) contests a two-item Citation and Notification of Penalty (Citation) 

issued March 20, 2017, by the Secretary. The Secretary issued the Citation following an inspection 

by the Occupational Safety and Health Administration (OSHA) on November 21, 2016, of a 

facility operated by Hightower Metal Works, in response to a report of a serious employee injury. 

The injured employee was one of several employees provided to Hightower Metal Works by TMD. 

After inspecting the facility, a compliance safety and health officer (CSHO) recommended issuing 

citations to both Hightower Metal Works and TMD for failing to provide guards for four machines 

used by TMD-supplied employees in Hightower Metal Work’s facility, exposing the employees 

to struck-by and caught-by hazards.

Item 1 of the Citation alleges a serious violation of 29 C.F.R. § 1910.212(a)(1) for failing 

to provide a guard for the point of operation of a punch station on a Piranha P-90 ironworker 

machine. Item 2 alleges a serious violation of 29 C.F.R. § 1910.212(a)(3)(ii) for failing to provide 

guards for points of operation on two press brakes and a bending roll. The Secretary proposes a 

penalty of $12,675.00 for each item, for a total proposed penalty of $25,350.00. 
2

The Court held a hearing in this matter on November 8, 2017, in Houston, Texas. The 

parties filed briefs on February 20, 2018. TMD argues the Secretary failed to establish its 

employees were exposed to struck-by or caught-by hazards when using the unguarded machines. 

TMD asserts the affirmative defense of unpreventable employee misconduct with respect to 

Instance (c) of Item 2. TMD also argues it lacked control of the worksite such that it could abate 

the alleged violative conditions. 

For the reasons discussed below, the Court AFFIRMS Items 1 and 2 and assesses a total 

penalty of $20,000.00 for the two items. 

JURISDICTION AND COVERAGE

TMD timely contested the Citation and Notification of Penalty on March 28, 2017. The 

parties stipulate the Commission has jurisdiction over this action and TMD is a covered business 

under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act) (Tr. 16-17). 

Based on the stipulations and the record evidence, the Court finds the Commission has jurisdiction 

over this proceeding under § 10(c) of the Act and TMD is a covered employer under § 3(5) of the 

Act.

BACKGROUND

Hightower Metal Works (HMW) owns and operates a steel fabrication facility in Houston, 

Texas. The company primarily serves the gas compression market. It has been in business for 

approximately 25 years and has hired workers supplied by TMD since it began operating. HMW 

directly employs five workers (including secretaries) and employs the remaining 10 or 11 workers 

through TMD (Tr. 29-31).

The TMD-supplied employees operate HMW’s steel fabrication machines daily (Tr. 41, 

50, 53). HMW operates its manufacturing shop five days a week, from 6:00 a.m. to 4:30 p.m. 

Depending on the workload, HMW may operate the shop a sixth day (Tr. 41). 

On Saturday, October 29, 2016, TMD Employee #1 was operating HMW’s Wysong 

bending roll (also referred to as the “plate roll” at the hearing), which is used to roll metal sheets 

into circular shapes. Employee #1 inserted a sheet of stainless steel between the rollers of the plate 

roll to make a pipe. The rolls caught his left glove and pulled his left index finger into the point 

of operation, crushing it. Emergency personnel transported Employee #1 to a hospital, where he 

received medical treatment. Later that week, medical personnel amputated his finger due to 

complications (Tr. 125-127). Employee #1 had worked at HMW’s facility for 14 years at the time 
3

of the hearing. He was on medical leave for two months and performed light duty at TMD’s office 

for two weeks. He then returned to operating machines at HMW’s shop (Tr. 124, 128).

CSHO Marcelo Maldonado inspected HMW’s facility on November 21, 2016. After 

photographing the shop machines and conducting employee interviews, CSHO Maldonado 

recommended the Secretary issue citations to HMW, as the creating and controlling employer, and 

to TMD, as the exposing employer; the Secretary followed his recommendations. HMW entered 

into an informal settlement with the Secretary and abated the cited violations. 

The four machines cited in this proceeding are:

(1) The Piranha P-90 ironworker, used to punch holes, cut flat bars and angle, and notch 

metal. HMW bought the ironworker four or five years before the November 2017 hearing. The 

punch station of the ironworker was not guarded at the time of the OSHA inspection. Following 

the inspection, HMW installed a Plexiglas guard on the punch station (Item 1) (Exh. C-1, pp. 7-8; 

Tr. 39, 50-54);

(2) The H.T.C. 160G press brake, used to bend sheets of metal. After placing a sheet of 

metal in the machine, the operator steps on a pedal to activate the machine. The H.T.C. press brake 

was already in the manufacturing shop when HMW bought the facility in 1992. It was not guarded 

at the time of the OSHA inspection. Subsequent to the inspection, HMW installed a light curtain 

guard on the press brake (Item 2, Instance (a)) (Exh. C-1, p. 5; Tr. 40-47);

(3) The Piranha 65 press brake, also used to bend sheets of metal. It is activated using a 

computer controller. HMW bought the Piranha press brake in 2005 or 2006. It was not guarded at 

the time of the OSHA inspection. HMW installed a light curtain guard after the inspection (Item 

2, Instance (b)) (Exh. C-1, p. 6; Tr. 48-50); and

(4) The Wysong bending roll or plate roll, used to roll metal sheets into round shapes. The 

point of operation of the plate roll was not guarded, but a wire cable ran around the machine that 

would halt operation if the operator touched it. This is the machine on which Employee #1 was 

injured. HMW did not guard the point of operation of the plate roll after the OSHA inspection, 

but it placed a guardrail on the back of the machine to prevent employees accessing that area (Item 

2, Instance (c)) (Exh. C-1, pp. 1-4; Tr. 33-40).1

 

1 TMD asserts, “Hightower determined, with OSHA’s acquiescence, that guarding of the Wysong plate roll was not 

even possible.” (TMD’s brief, p. 9) TMD bases this assertion on HMW president Mark Hightower’s comment at the 

hearing that, during settlement talks with the Secretary, HMW “proved to [the Secretary] that there are no more guards 
4

THE CITATION

The Secretary’s Burden of Proof

To establish a violation, “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.” Astra Pharma. Prods., 9 

BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in relevant part, 681 F.2d 169 (1st Cir. 1982).

Item 1: Alleged Serious Violation of § 1910.212(a)(1)

Item 1 of the Citation alleges, 

On or about November 21, 2016, and at times prior thereto, employees in the 

manufacturing shop were exposed to struck-by and caught-by hazards when 

operating a punch station on a Piranha P-90 ironworker without a point of operation 

guard.2

Section 1910.212(a)(1) 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. 

 

for it.” (Tr. 40) To the extent TMD is arguing guarding the bending roll is infeasible, the argument fails. The employer 

has the burden of proving infeasibility. 

The Secretary . . . is not required to prove feasibility where the cited standard ‘states the hazard to 

be protected against and the performance criterion by which the adequacy of the employer's 

abatement must be judged”; that is, where ‘the performance required by the standard is clear 

enough.’ See Hughes Bros., 6 BNA OSHC 1830, 1835 (No. 12523, 1978) (contrasting 

circumstances, which involved citation under 29 C.F.R. § 1910.212(a)(3)(ii), to prior case in which 

Commission required Secretary to prove feasibility with respect to PPE standard that required 

“unspecified [PPE] against unspecified

hazards”); Consol. Aluminum Corp., 9 BNA OSHC 1144, 1156-57 (No. 77-1091, 1980) (extending 

rationale in Hughes to citation alleging violation of § 1910.212(a)(1) and concluding that Secretary 

did not bear burden of proving feasibility, because standard “states the hazards to be protected 

against and the performance required with sufficient clarity, particularly when read in the context 

of [§] 1910.212 as a whole”).

Envision Waste Servs., LLC, 27 BNA OSHC 1001, 1003 (No. 12-1600, 2018). Infeasibility is an affirmative defense 

which respondent must raise in its answer. See Commission Rules 34(b)( 3) and (4), 29 C.F.R. § 2200.34(b) and (4). 

TMD did not do so. It has waived assertion of the infeasibility defense.

2 Employee #1’s accident occurred October 29, 2017. The date referred to in the alleged violation descriptions for 

Items 1 and 2, November 21, 2017, is the date of the CSHO’s inspection of HMW’s facility. The Secretary has not 

sought to amend the Citation and TMD has not raised the issue of the discrepancy between the date of the injury that 

triggered the inspection and the date of the actual inspection. The Court determines the parties thoroughly litigated

the issue of employee access to the point of operation of the bending roll and squarely recognized which events 

occurred on which dates. See Envision Waste Services, 27 BNA OSHC at 1007.
5

Examples of guarding methods are-barrier guards, two-hand tripping devices,

electronic safety devices, etc.

TMD argues the Secretary failed to establish its employees were exposed to struck-by or 

caught-by hazards created by the point of operation of the punch station. 3

(1) The Cited Standard Applies

Section 1910.212(a)(1) is found in Subpart O—Machinery and Machine Guarding of the 

general industry standards. Section 1910.212 is captioned “General requirements for all 

machines.” This standard applies to all machines not covered by a more specific standard. TMD 

does not dispute the applicability of the standard. The Piranha P-90 ironworker is a machine. 

Section 1910.212(a)(1) applies to the cited condition. 

(2) Failure to Comply with § 1910.212(a)(1)

The punch station of the Piranha P-90 ironworker was not guarded (Exh. C-1, pp. 7-8). 

Mr. Hightower testified his company purchased the machine four or five years before the hearing, 

and the TMD employees operated it in its unguarded condition until after the November 21, 2016, 

OSHA inspection (Tr. 52-53). 

The Secretary has established TMD failed to comply with § 1910.212(a)(1).

(3) Employees Had Access to the Violative Condition

“In order to establish a violation of section 1910.212(a)(1), the Secretary must first prove 

the existence of a hazard. . . . Whether a machine exposes an employee to a hazard must be 

determined based on the manner in which the machine functions and how it is operated by the 

employees.” Armour Food Co., 14 BNA OSHC 1817, 1821 (No. 86-247, 1990).

Mr. Hightower explained the manner in which the punch station of the Piranha P-90 

ironworker functions and how it is operated.

The actual punch of the machine is—you lay your piece of metal up there, you’re 

bringing the punch down, and you’re lining it up with the hydraulic foot pedal. It 

comes down slow, and you line that center punch up in the middle, you let go, and 

you punch it.

 

3 The Secretary issued the Citation to TMD because the company is the exposing employer. There is "long-standing 

Commission precedent holding that an employer whose own employees are exposed to a hazard or violative 

condition—an ‘exposing employer’—has a statutory duty to comply with a particular standard even where it did not 

create or control the hazard." S. Pan Servs. Co., 25 BNA OSHC 1081, 1085 (No. 08-0866, 2014). TMD does not 

dispute it is an exposing employer required to comply with the relevant OSHA standards in this proceeding.
6

(Tr. 135)

He stated it is dangerous for operators to place their hands in the zone of danger of the 

punch station. “You don’t want to put your fingers in there. . . It’s where it punches a hole. It 

would punch—you know, it would crush your hand.” (Tr. 59). His testimony establishes operation 

of the punch station exposed its operators to a hazard. 

To establish access under Commission precedent, the Secretary must show either 

that Respondent's employees were actually exposed to the violative condition or 

that it is “reasonably predictable by operational necessity or otherwise (including 

inadvertence), that employees have been, are, or will be in the zone of 

danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074, 1998 CCH OSHD 

¶ 31,463, pp. 44,506-07 (No. 93-1853, 1997) (citing Gilles & Cotting, Inc., 3 BNA 

OSHC 2002, 2003, 1975-76 CCH OSHD ¶20,448, p, 24,425 (No. 504, 1976)).

S & G Packaging Co., LLC, 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001).

TMD’s primary defense is the Secretary failed to establish its employees had access to the 

unguarded points of operation of the cited machines. The Court disagrees and finds the record 

establishes operators of the punch station on the Piranha P-90 were required to place their hands 2 

to 3 inches from the point of operation, placing them within the zone of danger.

Employee #1 and Employee #2 of TMD testified at the hearing. Employee #1 stated he 

uses the punch station of the Piranha P-90 ironworker every day. He stands “[a]bout 2 feet” from 

the point of operation of the punch station when operating it (Tr. 129) Employee #2 likewise 

testified he operates the punch station daily, usually three or four times a day (Tr. 112). He stands 

“a foot and a half—2 feet away” from the point of operation when using the punch station (Tr. 

113). The employee witnesses did not state how far their hands were from the point of operation 

as they operated the machine.

Mr. Hightower was the only witness who testified regarding the position of the operator’s 

hands when operating the punch station.

Q. Before you . . . do the actual punch, what do you do?

Mr. Hightower: Let go of it and take your hands out.

Q. How far away are your hands from the actual point of operation?

Mr. Hightower: You’re never underneath your point of operation. Your hands are 

always 2 or 3 inches away on the punch.

(Tr. 136)
7

TMD argues this case is similar to Safeway #2555, & Its Successors, 2005 WL 858056 

(No. 03-1072, 2005), in which the Commission reversed the ALJ’s decision affirming a violation 

of § 1910.212(a)(1). The Commission found the Secretary failed to establish respondent’s 

employees had access to the points of operation of industrial bakery mixers. Of particular concern 

to the Commission was the fact the CSHO “took no measurements to determine the possibility or 

likelihood of exposure at Safeway. In fact, the bowl was not even in place on the M-802 mixer, 

and his inspection of the A-200 mixer was limited to the question regarding whether any employee 

operated it.” Id. at *2. As in Safeway, the CSHO in this case took no measurements to ascertain 

the distance between the operator’s hands and the point of operation of the punch station. The 

Secretary’s case is not limited to the inspection of the CSHO, however. The undisputed testimony 

of Mr. Hightower establishes the operator’s hands come within 2 or 3 inches of the unguarded 

point of operation. At this distance it is “more than theoretically possible” the hands of the 

machine’s operators would be in the zone of danger.

The Secretary need not show it was certain that employees would be in 

the zone of danger, but he must show that exposure was more than theoretically 

possible. Fabricated Metal Prods., Inc. 18 BNA OSHC 1072, 1074 (No. 93-1853,

1997); Phoenix Roofing, 17 BNA OSHC at 1079; Kaspar Wire Works, Inc., 18 

BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “‘reasonably 

predictable’ that an employee would come into contact with the unguarded belt and 

pulley either while attempting to reposition the fan, or inadvertently while passing 

nearby”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).

Calpine Corp., 27 BNA OSHC 1014, 1017 (No. 11-1734, 2018).

The Court finds the positioning of the punch station operator’s hands 2 to 3 inches from 

the point of operation places them within the zone of danger. It is not sufficient HMW personnel 

instructed the TMD employees to “Let go and take your hands out of it” before activating the 

pedal. TMW cannot rely on training to protect employees from the hazards addressed in the 

machine guarding standard. The Commission has also long-recognized that OSHA's machine 

guarding standards were designed to protect employees from human error, such as “neglect, 

distraction, inattention or inadvertence of an operator. . . . The standard was designed to provide 

against such human weakness.” Slyter Chair, Inc., 4 BNA OSHC 1110, 1112 (No. 1263, 1976). 

“This requirement implicitly recognizes that human characteristics such as skill, intelligence, 

carelessness, and fatigue, along with many other qualities play a part in an individual's job 

performance, and it avoids dependence on human conduct for safety.” B.C. Crocker, 4 BNA OSHC 

1775, 1777 (No. 4387, 1976). “It is clear from the examples provided [in § 1910.212(a)(1)] that 
8

the method of machine guarding should not be predominantly dependent upon human behavior. 

The plain purposes of the standard are to avoid dependence upon human behavior and to provide 

a safe environment for employees in the machine area from the hazards created by the machine's 

operation.” Akron Brick & Block Co., 3 BNA OSHC 1876, 1878 (No. 4859, 1976). 

The Court finds TMD’s employees were assigned to operate the punch station of the 

Piranha P-90 ironworker on a daily basis, which would bring their hands within the zone of danger 

posed by the unguarded point of operation. It was reasonably predictable TMD’s employees would 

have access to the struck-by and caught-by hazards. 

(4) Employer Knowledge

TMD conducts quarterly worksite evaluations for every TMD client (Tr. 240). Martha 

Gallegos worked for TMD for six years. The last four years she worked there, she was a senior 

staffing specialist (Tr. 80). One of her duties was conducting site inspections of workplaces to 

which TMD supplied employees. Ms. Gallegos would accompany a TMD branch manager as they 

inspected the site and complete paperwork as instructed by the branch manager (Tr. 83). As part 

of the inspection, Ms. Gallegos filled out a form titled Quarterly Work Site Evaluation. The form 

is a checklist for specific items listed under the topics of housekeeping, personal protective 

equipment, training, ergonomics, first aid, work practices, fire protection, material handling, tools, 

machinery, contact agents, pressure equipment, and accidental management information. The 

machinery section of the checklist provides:

(Exh. C-6, p. 30)

Page 30 of Exhibit C-6 is a copy of TMD’s Quarterly Work Site Evaluation for HMW, 

completed by Ms. Gallegos as instructed by a branch manager identified as Irma on the line for 

“Service Rep.” (Her last name was not given at the hearing.) The date written by Ms. Gallegos 
9

appears to be “4/14/16.”4 Of the four boxes, Ms. Gallegos checked only “Good working condition” 

for the machinery items. She did not check “Guarded at point of operation.” (Tr. 87)5

The Secretary has established a prima facie case that TMD had actual knowledge the cited 

machines were not guarded.6 TMD states it could not “be expected to know that the machines 

were not in compliance with the standards, given that Hightower, not TMD, is in the metal working 

business.” (TMD’s brief, p. 2) Ms. Gallegos testified she wrote on the form only what the branch 

manager told her to write. TMD did not train her to conduct worksite evaluations or provide her 

with training in machine guarding (Tr. 83-84). 

 Neither Irma nor any other branch manager testified. The record is, therefore, silent 

regarding the training and duties of branch managers relating to worksite evaluations and expertise 

on machine guarding. TMD failed to rebut the Secretary's documentary evidence of the branch 

manager's actual knowledge of the unguarded machines. "It is well established that when one 

party has it peculiarly within its power to produce witnesses whose testimony would elucidate the 

situation and fails to do so, it gives rise to the presumption that the testimony would be unfavorable 

to that party. Graves v. United States, 150 U.S. 118, 121 (1893). The Commission also has noted 

that when one party has evidence but does not present it, it is reasonable to draw a negative or 

adverse inference against that party, i.e., that the evidence would not help that party's case. 

Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-43 (No. 00-1968, 2003). TMD provided 

no rebuttal to the Secretary's evidence TMD supervisors inspected HMW's worksite and observed 

the machines were not guarded.

 

4 Ms. Gallegos testified she worked the last four years of her tenure at TMD as a senior staffing specialist. Her last 

day of work for TMD was May 23, 2017 (Tr. 81). Therefore, any Quarterly Work Site Evaluations she completed 

would have been between 2013 and May 23, 2017.

5

In small print below the machinery checklist, there is a parenthetical list (“(belts, pulleys, gears, shafts)”) of points 

of operation that are not at issue in this proceeding. TMD makes no argument regarding this list. There is no 

evidence in the record HMW had machines in its shop with these kinds of points of operation. The branch manager 

did not direct Ms. Gallegos to write “N/A,” for “Not Applicable,” in this section, as she did for a following section 

under “Pressure Equipment.” (Exh. C-6, p. 30) TMD used a different work site evaluation form in 2003. On one

sheet completed July 23, 2003, for HMW’s worksite, under the heading “Machine Operations and Guarding,” the 

question “No work on unguarded machinery?” is checked as “satisfactory,” (Exh. C-6, p. 23). The Court concludes 

the parenthetical list provides examples of points of operation and is not an exhaustive set of limitations as to the 

kinds of points of operation that can be considered. To find TMD is concerned about the listed points of operation 

but not about the points of operation of punches, press brakes, and bending rolls would be nonsensical. 

6 Even without the documentary evidence establishing actual knowledge, it is undisputed TMD made quarterly 

inspections of HMFW’s machine shop, looking for safety hazards (Tr. 83). This is sufficient to establish 

constructive knowledge of the unguarded machinery.
10

The Secretary has established TMD had actual knowledge of the violative condition of the 

unguarded punch station of the Piranha P-90 ironworker.7 TMD conducted quarterly inspections 

of HMW’s worksite and specifically looked at the machines its employees operated to determine 

whether they were guarded. In 2016 (after the purchase date of the Piranha P-90 ironworker) the 

branch manager instructed Ms. Gallegos to omit checking the box for “Guarded at point of 

operation” for HMW’s machines. The branch manager is a supervisory employee whose actual 

knowledge is imputed to TMD. See W.G. Yates & Sons Construction Co., Inc. v. OSHRC, 459 

F.3d 604, 607 (5th Cir.2006) (“[W]hen a corporate employer entrusts to a supervisory employee 

its duty to assure employee compliance with safety standards, it is reasonable to charge the 

employer with the supervisor's knowledge[,] actual or constructive [,] of non-complying conduct 

of a subordinate.”).

The Secretary has established TMD had actual knowledge of the violative condition. TMD 

violated § 1910.212(a)(1).

Characterization of the Violation

The Secretary characterized the violation of § 1910.212(a)(1) as serious. A serious 

violation is established when there is “a substantial probability that death or serious physical harm 

could result [from a violative condition] . . . unless the employer did not, and could not with the 

exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). 

As noted, Mr. Hightower testified it is dangerous for operators to place their hands in the

zone of danger of the punch station because “it would crush your hand.” (Tr. 59) 

The Court determines the Secretary properly characterized the violation as serious.

Item 2: Alleged Serious Violation of § 1910.212(a)(3)(ii)

Item 2 of the Citation alleges,

On or about November 21, 2016, and at times prior thereto;

a. Employees in the manufacturing shop were exposed to struck-by and caught-by 

hazards when operating a H.T.C. 160G press brake without a point of operation 

guard.

 

7 To the extent TMD could argue it was aware the machines were unguarded, but unaware its employees had access 

to the zones of danger on the machines, the Court finds the exercise of reasonable diligence required TMD to follow 

up on its actual knowledge. Having observed and documented the machines were not guarded, TMD was obligated 

to ensure its employee were not exposed to hazardous conditions. See Wiley Organics, Inc. d/b/a Organic Tech., 17 

BNA OSHC 1586, 1597 (No. 91-3275, 1996), aff'd, 124 F.3d 201 (6th Cir. 1997) (“An employer has a general 

obligation to inform itself of the hazards present at the worksite and cannot claim lack of knowledge resulting from 

its own failure to make use of the sources of information readily available to it.”) (citations omitted).
11

b. Employees in the manufacturing shop were exposed to struck-by and caught-by 

hazards when operating a Piranha 65 Ton press brake without a point of operation 

guard.

c. Employees in the manufacturing shop were exposed to caught-by hazards when 

operating a Wysong bending roll without a point of operation guard.

Section 1910.212(a)(3)(ii) provides:

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.

TMD argues the Secretary failed to establish its employees were exposed to struck-by or 

caught-by hazards created by the points of operation of the press brakes and the press roll. 

(1) The Cited Standard Applies

Section 1910.212(a)(3)(ii) is found in Subpart O—Machinery and Machine Guarding of 

the general industry standards. It is undisputed the cited the press brakes and press roll are 

machines. Section 1910.212(a)(3) applies to the cited conditions. 

(2) Failure to Comply with § 1910.212(a)(3)(ii)

It is undisputed the two cited press brakes and the bending roll were not guarded (Exh. C1, pp. 1-6; Tr. 33-50). TMD failed to comply with § 1910.212(a)(3)(ii).

(3) Employees Had Access to the Violative Condition

“With a general standard such as the point of operation guarding standard in this case 

(§ 1910.212(a)(3)(ii)), the Secretary must prove that the violation of the standard presents a 

hazard.” Fabricated Metal Prod., Inc., 18 BNA OSHC 1072, n.6 (No. 93-1853, 1997). Mr. 

Hightower testified the cited press brakes presented amputation hazards to the operators (Tr. 57). 

The injury to Employee #1 while operating the bending roll establishes use of the unguarded 

machine presents a hazard. The Secretary has proven the violation of § 1910.212(a)(3)(ii) with 

regard to the cited machines presents hazards. 

Instances (a) and (b): H.T.C. 190G Press Brake and Piranha 65 Ton Press Brake

Operators use the press brakes to bend angles on metal. They operate the press brakes

daily (Tr. 50). Regarding the H.T.C. press brake, Mr. Hightower explained, “[Y]ou lay out your 
12

piece of metal to whatever you want, put the proper die in, lay it in there, and you bring it down 

and get on the line, and you push the pedal, and it breaks it.” (Tr. 45) He stated operators stand in 

front of the H.T.C. press brake when positioning the metal. “They’re pretty close when they’re 

bringing [the die] down because they have to put it on the line. . . . A foot away . . . you, know, 

bending over looking at it.” (Tr. 46) Mr. Hightower stated the Piranha press brake is operated in 

the same manner, except it is activated with a computer controller, rather than a pedal (Tr. 48). 

TMD focuses on the placement of the operators’ feet while operating the press brakes, in 

arguing its employees are guarded by distance. Although the operators stand approximately a foot 

from the press brakes, they must place their hands much closer to perform their assigned tasks. 

Referring to OSHA Instruction CPL 02-01-025, TMD states, “[W]hile OSHA recognizes guarding 

by distance, where applicable, requires only four inches of clearance to be safe, here the witnesses 

testified their normal practice was to maintain one to two feet of clearance in all cases.” (TMD’s 

brief, p. 13) The section of the OSHA Instruction cited by TMD provides:

For the purpose of maintaining a "safe distance" as discussed in this instruction, the 

operating employee and helping employee(s) must not approach closer than 

necessary and in no case, closer than 4 inches (10.16 centimeters) to the power 

press brake point of operation. The minimum safe distance of 4 inches (10.6 

cm) shall be measured from the exterior point of contact of the power press 

brake die closest to an employee.

Id. at ¶ D.7. (emphasis in original)

This argument misses the mark for two reasons. First, TMD ignores the previous language 

of the OSHA Instruction mandating safe distance guarding is allowed only in the event guarding 

is not feasible and it is limited to one-time only fabrication. 

5. Because of constraints imposed by certain manufacturing or fabricating 

processes, safeguarding by maintaining a safe distance from the point of operation 

may be acceptable but only when safeguarding by physical barrier or physical 

devices is not feasible. "Safe distance" means the clearance between an employee 

(typically his or her fingers holding and supporting a piece part) and the power 

press brake point of operation.

6. Safeguarding by maintaining a "safe distance" is acceptable if:

a. The employer demonstrates that physical barriers and physical devices are not 

feasible to guard the power press brake point of operation. Physical devices 

typically include: two hand controls, holdouts or restraints and presence sensors.

b. The employer demonstrates that power press brake point of operation guarding 

by maintaining a safe distance is limited to one-time only fabrication of made-toorder or custom-made piece parts. Small quantity runs, typically performed in job
13

shop or model shop establishments may be affected by this provision; high volume 

piece part rates of production will not. A "small quantity run" means fabrication of 

more than one of the same piece parts over a continuous timeframe of no more than 

four hours per month.

Id. (emphasis in original)

Here, guarding by physical devices is feasible, as demonstrated by HMW’s subsequent 

guarding of the press brakes using light curtain guards (Tr. 47, 50). 

Second, the OSHA Instruction states the minimum safe distance is 4 inches. Mr. Hightower 

testified credibly the operators’ hands could be as close as 2 inches when positioning the metal. 

Mr. Hightower testified, “[W]hen you’re using the press brake, you’re going to have to have your 

hand right up under there until you get it on the line, and then you’re going to move your hands 

and come on down.” (Tr. 64) TMD’s counsel asked Mr. Hightower how far the operator’s hands 

are from the point of operation of the H.T.C. press brake when positioning the metal piece. He 

stated, “[A] couple of inches, 4 inches, when you’re lining the line up. But your hand is still not 

in the pinch point.” (Tr. 137) (emphasis added) The distance of the hands of the Piranha press 

brake operator from the point of operation is “[i]dentical” to that of the operator’s hands from the 

H.T.C. press brake’s point of operation” (Tr. 138)

As with Item 1, the Court finds a distance of 2 to 4 inches from the point of operation to be 

within the zone of danger of the two press brakes. The Secretary has established TMD’s 

employees had access to the violative condition.

Instance (c)—Wysong Bending Roll

Mr. Hightower testified the bending roll is operated by placing the metal sheet between the 

machine’s rollers. “You feed the material into the front, turn it on, and it rolls it.” (Tr. 138) The 

operator stands “a foot or more” away from the front of the machine when it is activated (Tr. 138). 

TMD’s employees operated the plate roll daily (Tr. 107, 127).

Employee #1 explained how his finger was pulled into the rollers of the machine.

As I was operating the roller and I was putting in a piece of stainless steel to make 

a pipe, when I put it in, my glove—my left-hand glove slipped. As I was operating 

it, it caught my—it caught it, and I automatically stopped it, and it crushed my 

finger.

(Tr. 126)

Employee #2 was working next to Employee #1 at the time of the accident. He stated 

Employee #1 was rolling a metal sheet. “Looking at 2 and a half feet. Not that big. A little piece 

of stainless steel.” (Tr. 106) TMD took a statement from Employee #1 as part of its Accident/Injury 
14

Report. A TMD representative reported, “The material went slanted he wanted to fix and that is 

when this happened.” (Exh. C-20, p. 6)

It is one of the responsibilities of the plate roll operator to insert the metal sheet correctly. 

In inserting the stainless steel, Employee #1 was performing an assigned duty. When he reached 

out to straighten the metal sheet, he was engaging in reasonably predictable behavior. See Kaspar 

Wire Works, Inc., 18 BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was 

“‘reasonably predictable’ that an employee would come into contact with the unguarded belt and 

pulley either while attempting to reposition the fan, or inadvertently while passing nearby”), aff'd, 

268 F.3d 1123 (D.C. Cir. 2001). The Secretary has established it was reasonably predictable by 

operational necessity that TMD’s bending roll operators were in the zone of danger of the point of 

operation when operating the machine.

(4) Employer Knowledge

Page 30 of Exhibit C-6 is a copy of TMD’s Quarterly Work Site Evaluation, completed in 

April of 2016 at the instruction of a TMD branch manager. As noted regarding Item 1, the box 

indicating HMW’s machinery is guarded is not checked. The knowledge of TMD’s branch 

manager is imputed to TMD. The Secretary has established TMD knew of the violative condition 

of the cited machines.

Unpreventable Employee Misconduct Defense

TMD contends the injury to the hand of Employee #1 was the result of his unpreventable 

misconduct. To establish that a violation was the result of unpreventable employee misconduct an 

employer is required to show that it: “(1) established work rules designed to prevent the violative 

conditions from occurring; (2) adequately communicated those rules to its employees; (3) took 

steps to discover violations of those rules; and (4) effectively enforced the rules when violations 

were discovered.” Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). 

The unpreventable employee misconduct defense applies in situations where the behavior 

of the employee, not the existence of a violative condition, is at issue. OSHA’s machine guarding 

standards were designed to protect employees from common human errors such as “neglect, 

distraction, inattention or inadvertence of an operator[.]” Slyter Chair, Inc., 4 OSHC BNA at 1112. 

Here, the violative conduct is the failure to guard the bending roll, not the inadvertent action of the 

employee. 
15

TMD’s reliance on the unpreventable employee misconduct defense regarding Employee 

#1 is misplaced. Even without the occurrence of his injury, the record establishes TMD employees 

routinely operated the bending roll while it was in noncompliance with § 1910.212(a)(3)(ii). “See 

Boeing Co., 5 BNA OSHC 2014, 2016 (No. 12879, 1977) (finding of a violation does not depend 

on the cause of the particular accident that led to the case); Concrete Constr. Corp., 4 BNA OSHC 

1133, 1135 (No. 2490, 1976) (‘The Act may be violated even though no injuries have occurred, 

and even though a particular instance of noncompliance was not the cause of injuries.’); Kansas 

City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 1982) (‘Indeed, both the judge 

and Respondent improperly define the hazard at issue in terms of the asserted cause of the specific 

incident that led to injury . . . .’).” Calpine Corp, 27 BNA OSHC at n. 6. 

Neither TMD nor HMW installed guards on the cited machines. Neither company had a 

work rule designed to prevent employees from using unguarded machines; it follows the 

companies could not then adequately communicate such a rule or takes steps to discover its 

violation or enforce the nonexistent rule. TMD’s unpreventable employee misconduct defense 

fails.

Lack of Control Defense

TMD cites Central of Georgia Railroad Company v. OSHRC, 576 F.2d 620 (5th Cir. 1978), 

in support of its argument it lacked control of the worksite. In Central, the Court of Appeals for 

the Fifth Circuit discussed the emergent multi-employer worksite defense as set out in AnningJohnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975). The Fifth Circuit stated, 

We regard the Commission's position at least in part as an allocation of burdens of 

proof. Under this allocation the Secretary must first make out a prima facie case; 

the burden then shifts to the employer to rebut this prima facie case; or if he does 

not do so, he may establish an affirmative defense by showing his own lack of 

control over the hazard, and according to the Commission his protection of the 

employees through alternative measures.

Central, 576 F.2d at 624.

TMD argues it lacked control over the hazard:

TMD has no supervision on site at Hightower. TMD visited Hightower only two to 

four times per year for site inspections. Further, TMD left training of proper use of 

the iron worker, press brakes, and plate roll to Hightower. TMD had no contractual 

right to insist on changes being made to the machines. [TMD claims administrator] 

Donna Mitchell testified that documents in the record at C-6 constitute the only 

contract between TMD and Hightower Metal Works. Those documents do not give 

TMD any right to access or alter the machines at Hightower, nor do they include 
16

any contractual covenants that TMD could enforce to force Hightower to change 

its machines. Furthermore, Hightower, and not TMD, investigated guarding 

options and collaborated with OSHA to implement guards on the equipment at 

issue. 

(TMD’s brief, pp. 17-18)

The Court agrees with the facts set out in TMD’s argument. TMD overlooks, however, the 

second step of the formulation of the defense: the exposing employer must protect its employees 

through alternative means.

“Under Commission precedent . . . the focus of the Secretary's burden of proving that the 

cited standard applies pertains to the cited conditions, not the particular cited employer.” Southern 

Pan Services Co., 25 BNA OSHC at 1085. An employer whose own employees are exposed to a 

hazard or violative condition (an exposing employer) has a statutory duty to comply with a 

particular standard even where it did not create or control the hazard. See Anning-Johnson Co., 4 

BNA OSHC 1193, 1198-99 (No. 3694, 1976) (consolidated) (holding that the exposure of a 

subcontractor's “employees to a condition that the employer knows or should have known to be 

hazardous, in light of the authority or ‘control’ it retains over its own employees, gives rise to a 

duty under section 5(a)(2) of the Act[.]”). Thus, even if TMD had no control over HMW’s 

worksite, it still had an obligation to comply with the standard, either by requesting HMW to 

provide guards for the machines, or, if HMW refused the request, prohibiting its employees from 

operating the machines.

[E]ach employer has primary responsibility for the safety of its own employees. 

Simply because a subcontractor cannot himself abate a violative condition does not 

mean it is powerless to protect its employees. It can, for example, attempt to have 

the general contractor correct the condition, attempt to persuade the employer 

responsible for the condition to correct it, instruct its employees to avoid the area 

where the hazard exists if this alternative is practical, or in some instances provide 

an alternative means of protection against the hazard.... In the absence of such 

actions, we will still hold each employer responsible for all violative conditions to 

which its employees have access. 

Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1189 (No. 12775, 1975) (emphasis added) 

“[S]uch a requirement is consistent with Commission precedent requiring an employer to detect 

and assess the hazards to which its employees may be exposed, even those it did not create.”

Associated Underwater Servs, 24 BNA OSHC 1248, 1251 (No. 07-1851, 2012). 
17

As the Secretary points out, TMD could have included language in its contract with HMW 

requiring machines to be guarded. In its existing contract, TMD prohibits its employees from

operating forklifts (Exh. C-6, p. 29; Tr. 217, 228-229).

In Central, on which TMD relies, the Fifth Circuit upholds the primacy of the Act over any 

contractual terms to which the employers agreed.

[A]s the Commission has noted, an employer may not contract out of its statutory 

responsibilities under OSHA. Anning-Johnson, 4 OSHC at 1198 n. 8 (BNA), and 

cases cited therein. If an employer does contract with a third party to maintain safe 

conditions, it is to be presumed that the employer can enforce the contract. We are 

unimpressed by Central's arguments that it could not enforce the present contract. . 

. [I]t was Central's burden to show the unavailability of such means, and it has not 

met its burden to show lack of control.

We stress that the Act, not the contract, is the source of Central's 

responsibilities. See Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628, 631 

(10th Cir. 1975). An employer may carry out its statutory duties through its own 

private arrangements with third parties, but if it does so and if those duties are 

neglected, it is up to the employer to show why he cannot enforce the arrangements 

he has made. If he cannot make this showing, he must take the consequences, and 

his further remedy lies against the private party with whom he has contracted and 

whose breach exposes the employer to liability.

Id. at 624–25.

The Court determines TMD’s defense it lacked control over the worksite fails.

Characterization of the Violation

The Secretary characterized the instances of the violation of § 1910.212(a)(3)(ii) as serious. 

With regard to the cited press brakes, Mr. Hightower stated, “It wouldn’t be a smushed finger 

there; it would be a cut-off finger. It would cut it off in the press brake.” (Tr. 57) The injury to 

Employee #1 while operating the plate roll establishes the risk of serious physical harm of 

operating that unguarded machine. The violation of § 1910.212(a)(iii) is properly characterized 

as serious.

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all contested cases. “In assessing 

penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give due 

consideration to the gravity of the violation and the employer’s size, history of violation, and good 

faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a 

principal factor in a penalty determination and is based on the number of employees exposed, 
18

duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy 

and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). 

TMD has approximately 1,000 employees (Tr. 180). CSHO Maldonado conceded he erred 

when he calculated TMW’s history of violations—he factored in six citations resulting from three 

inspections in 2014 and 2015. The Secretary deleted these citations in a final settlement agreement 

(Exh. R-1, p. 3; Tr. 189-190). The Secretary states that, had the CSHO correctly calculated the 

TMW’s history of violations, “the penalty would have been reduced by only ten percent” 

(Secretary’s brief, p. 14). TMW had a written safety and health program and its employees 

received safety training (Exhs. C-9 & C-10). It is entitled to penalty reductions for history and 

good faith.

The gravity of the violations for Items 1 and 2 is high. Two employees were exposed on a 

daily basis to unguarded points of operation on four machines. The likelihood of injury if they 

were struck or caught by the points of operation was great. TMS took no precautions against such 

injuries.

Based on the factors of size, history, good faith, and gravity, the Court assesses a penalty 

of $10,000.00 each for Items 1 and 2.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Fed. R. Civ. P. 52(a). 

ORDER

Based on the foregoing decision, it is hereby ORDERED:

1. Item 1 of Citation No. 1, alleging a serious violation of § 1910.212(a)(1), is AFIRMED 

and a penalty of $10,000.00 is assessed; and 

2. Instances (a) and (b) and (c) of Item 2 of Citation No. 1, alleging a serious violation of 

§ 1910.212(a)(3)(ii) are AFFIRMED and a penalty of $10,000.00 is assessed.

SO ORDERED
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/s/

Date: June 20, 2018

Sharon D. Calhoun

Administrative Law Judge

Atlanta, Georgia