     [NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]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.



                                 -2-
          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.


                                 -3-
           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.

                                  -4-
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.

                                  -5-
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

                                 -6-
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


                                 -7-
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


                                 -8-
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


                                 -9-
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


                                 -10-
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


                                 -11-
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


                                 -12-
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


                                 -13-
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.




                                -14-
